EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 1 of 107
Preserved Objections Previous Rulings New Objections Rulings

6:19 - 6:21 Baker, Cindy (2020-09-30) 0:09

6:19 Please state your full name for

6:20 the record.

6:21 A. Cindy Franchesca Baker.

11:22 - 12:01 Baker, Cindy (2020-09-30) 0:06

11:22 Q. Am I also correct, Ms. Baker,

11:23 that you served in the Army?

12:01 A. Yes.

13:09 - 13:11 Baker, Cindy (2020-09-30) 0:09

13:09 Q. Did you and Mr. Baker ever serve

13:10 at the same station at the same time?

13:11 A. No.

16:06 - 16:21 Baker, Cindy (2020-09-30) 1:44

16:06 Q. Understood. So, did you ever

16:07 wear the Combat Arms Version 2 --

16:08 A. No.

16:09 Q. -- during your service? Have

16:10 you ever worn the Combat Arms Version 2

16:11 at all?

16:12 A. No. I wasn't even aware of it

16:13 until this case came up and my husband

16:14 told me what they were.

16:15 Q. So, during your service you were

16:16 not aware of the Combat Arms Version 2?

16:17 A. Correct.

16:18 Q. All right. So you ended your

16:19 service in the military in 2009. Is that

16:20 correct?

16:21 A. Yes.

20:23 - 21:03 Baker, Cindy (2020-09-30) 0:11

20:23 Q. When did you get married to Mr.

21:01 Baker?

21:02 A. We formally got married February

21:03 4th of 2009.

25:13 - 25:19 Baker, Cindy (2020-09-30) 0:25

25:13 Setting aside conversations that you had

25:14 with -- or the substance of conversations

25:15 you had with Mr. Fox, what did you do to

Designations

Page 1 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 2 of 107
25:16 prepare for the deposition today?

25:17 A. I did review some of Mr. Baker's

25:18 deposition, just to get an idea of what

25:19 he was asked. I was a little nervous.

25:20 - 26:02 Baker, Cindy (2020-09-30) 0:16

25:20 Q. Fair enough. Other than

25:21 reviewing Mr. Baker's deposition, were

25:22 there any other documents that you

25:23 reviewed in preparation for your

26:01 deposition?

26:02 A. No.

30:12 - 30:15 Baker, Cindy (2020-09-30) 0:19

30:12 Q. Do you recall when you first had

30:13 contact with Mr. Baker on MySpace?

30:14 A. Oh, it was December of 2007.

30:15 Yeah, like the end of December.

31:08 - 31:18 Baker, Cindy (2020-09-30) 1:40

31:08 After December of 2007, do you

31:09 recall about when you first met Mr. Baker

31:10 in person?

31:11 A. It was right after I got back

31:12 from my deployment. And It was the day I

31:13 got divorced, technically, like my

31:14 ex-husband was at the court. But that's

31:15 the day I flew to see him in Charleston.

31:16 I think it was May, at the end of May, or

31:17 June of 2008. I took leave for about a

31:18 week.

33:02 - 33:16 Baker, Cindy (2020-09-30) 1:56

33:02 Q. When did you first notice that Re: [33:02 to 33:16] SUSTAINED

33:03 Mr. Baker had hearing loss? Def Obj Improper counter

33:04 A. I'm thinking. Sorry. It was

33:05 probably the -- when he got back from his

33:06 deployment in December of 2008 and spent

33:07 about a month with me. I would say it

33:08 would be then. But I didn't understand

33:09 that it was hearing loss at the time. I

33:10 just noticed that, like, I would have to

33:11 repeat myself a lot and that because I

33:12 mumble and talk fast, that sometimes he

Page 2 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 3 of 107
33:13 wouldn't understand me, and that he

33:14 didn't really enjoy going out very much.

33:15 So I just thought that was interesting

33:16 because we were both pretty young, so.

34:03 - 34:06 Baker, Cindy (2020-09-30) 0:14

34:03 a little bit different way. At the time

34:04 that you met Mr. Baker in May and June of

34:05 2008, did you notice any hearing loss?

34:06 A. No.

34:07 - 34:23 Baker, Cindy (2020-09-30) 1:41

34:07 Q. And so, other than what you just

34:08 described in December of 2009, can you

34:09 just tell me anything else about what you

34:10 remember at that time about Mr. Baker's

34:11 hearing loss?

34:12 A. I would like to add that when we

34:13 met for that week in May or June, that we

34:14 stayed in the hotel room a lot. So there

34:15 wasn't really a opportunity to notice

34:16 something different about his hearing.

34:17 We would maybe go on a tour or, like, go

34:18 out and get ice cream, and then we would

34:19 just go back to the hotel room that whole

34:20 entire week. So we were just getting to

34:21 know each other in person and stuff, so

34:22 there wasn't really a distance between us

34:23 or very much noise going on around us.

35:01 - 35:08 Baker, Cindy (2020-09-30) 0:27

35:01 But December of that year, like,

35:02 you know, I had moved to Charleston, or

35:03 Hanahan, I guess. And then we were

35:04 getting to see, like, some of his friends

35:05 that he's had from his past. So we would

35:06 go -- try to go out and, like, spend time

35:07 with them and stuff like that, and that's

35:08 when I started to notice it.

35:09 - 35:12 Baker, Cindy (2020-09-30) 0:20

35:09 Q. Did Mr. Baker ever complain to

35:10 you at that time about his hearing loss?

35:11 A. No. He doesn't complain very

Page 3 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 4 of 107
35:12 much.

35:13 - 35:18 Baker, Cindy (2020-09-30) 0:13

35:13 Q. When you met Mr. Baker back in

35:14 May and June of 2008, did you notice

35:15 whether or not he had tinnitus?

35:16 A. Had what?

35:17 Q. Tinnitus or "tin-eye-tis"?

35:18 A. I'm not sure. No.

36:04 - 36:08 Baker, Cindy (2020-09-30) 0:14

36:04 And so, when you first met him

36:05 in May and June of 2008, you don't recall

36:06 any discussions or conversations about

36:07 tinnitus?

36:08 A. No.

36:09 - 37:02 Baker, Cindy (2020-09-30) 1:46

36:09 Q. And was there a time in which

36:10 you later learned about Mr. Baker's

36:11 tinnitus?

36:12 A. It was probably, if not that

36:13 December when I noticed it, probably

36:14 within that next year after he officially

36:15 moved back home and got out of the

36:16 military and stuff like that -- well, got

36:17 out of active duty military.

36:18 Q. Okay. So, when would you say

36:19 you first noticed that he had tinnitus?

36:20 A. Oh, tinnitus? Oh, I don't

36:21 really know if I ever noticed it because

36:22 that's not something, like, I could

36:23 physically notice. Like, he would just

37:01 tell me he had it eventually. I don't

37:02 remember when that was, though.

37:03 - 37:06 Baker, Cindy (2020-09-30) 0:13

37:03 Q. Okay. Do you have a rough

37:04 estimate of when you think you learned

37:05 that Mr. Baker had tinnitus?

37:06 A. No. Sorry.

37:17 - 38:17 Baker, Cindy (2020-09-30) 2:35

37:17 If he had -- if Mr. Baker had

Page 4 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 5 of 107
37:18 any hearing loss or tinnitus prior to

37:19 when you met him in person, that wouldn't

37:20 have been something that you were able to

37:21 personally observe; right?

37:22 A. Correct.

37:23 Q. Do you know if Mr. Baker has

38:01 ever been diagnosed with hearing loss or

38:02 tinnitus by a medical provider?

38:03 A. I don't know.

38:04 Q. Have you ever gone with Mr.

38:05 Baker to any medical appointments

38:06 relating to his hearing loss or tinnitus?

38:07 A. No.

38:08 Q. Do you know if Mr. Baker has

38:09 ever gone to medical appointments

38:10 relating to his hearing loss or tinnitus

38:11 without you?

38:12 A. I have no idea.

38:13 Q. And so, is it fair to say that

38:14 you would not know the last time that Mr.

38:15 Baker scheduled a medical appointment for

38:16 his hearing loss or tinnitus?

38:17 A. Correct.

54:16 - 54:20 Baker, Cindy (2020-09-30) 0:19

54:16 Q. (By Ms. Ozurovich) Ms. Baker,

54:17 have you noticed hearing loss in both of

54:18 Mr. Baker's ears?

54:19 A. No. I want to say I always

54:20 forget which one it is, though, so.

56:18 - 57:08 Baker, Cindy (2020-09-30) 1:46

56:18 Q. Okay. And so separate from any

56:19 issues related to cost, is it fair to say

56:20 that you and Mr. Baker have not looked

56:21 into potential medical treatments related

56:22 to Mr. Baker's hearing loss to help with

56:23 any communication issues?

57:01 A. Correct.

57:02 Q. And did you ever look into what

57:03 the cost of any potential medical

57:04 treatment would be for any of Mr. Baker's

57:05 hearing-related issues?

57:06 A. We looked into hearing aids.

Page 5 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 6 of 107
57:07 But as a -- together, that's all I know

57:08 of. I don't know what he's done.

64:20 - 65:03 Baker, Cindy (2020-09-30) 0:25

64:20 Q. Have you ever gone to any

64:21 sporting events with Mr. Baker?

64:22 A. We've gone to a local football

64:23 game twice.

65:01 Q. Who was the local football team?

65:02 A. The University of Wyoming

65:03 Cowboys. Go Pokes.

65:08 - 65:19 Baker, Cindy (2020-09-30) 0:25

65:08 When you went to the local

65:09 football game, do you recall Mr. Baker

65:10 wearing hearing protection?

65:11 A. We were bundled up both times

65:12 because it's like freezing here in the

65:13 fall and snowing usually. So he at least

65:14 had a layer of like the big hats that we

65:15 wear that are lined and then usually like

65:16 a -- we wear like a blanket around us.

65:17 So I wouldn't necessarily call that

65:18 official hearing protection, but it does

65:19 help a lot.

65:20 - 66:05 Baker, Cindy (2020-09-30) 0:17

65:20 Q. Okay. So --

65:21 A. And we always sit in the

65:22 bleachers where there's not a lot of

65:23 people because both of us don't really

66:01 want to be around a lot of people. Like,

66:02 there's a student side where it's like

66:03 super packed and super loud. We -- we

66:04 always go on the other side, even though

66:05 we're students.

68:06 - 68:23 Baker, Cindy (2020-09-30) 1:43

68:06 Q. Yes. Okay. And then, do you

68:07 know if Mr. Baker listens to music?

68:08 A. Yes.

68:09 Q. Do you know how he listens to

68:10 music? Like, is it on a radio in the

68:11 house? Is it on headphones?

Page 6 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 7 of 107
68:12 A. He prefers to listen to it in

68:13 ear buds, like -- you know, like, in his

68:14 ears.

68:15 Q. Have you ever been able to hear

68:16 the noise from his headphones while

68:17 standing next to him?

68:18 A. No.

68:19 Q. Do you know what --

68:20 A. (Inaudible) I guess that's an

68:21 exemption to that. Like, if the kids are

68:22 being really loud, he'll play it louder.

68:23 But that's it.

69:06 - 70:06 Baker, Cindy (2020-09-30) 1:05

69:06 It sounds like normally you

69:07 can't hear the music from his headphones,

69:08 but if the kids are playing around loudly

69:09 in the house, he'll turn it up so that he

69:10 can hear over them?

69:11 A. Yeah. And that's part of the

69:12 reason why he wears them sometimes, is to

69:13 mute the kids out because it's so much on

69:14 his ears.

69:15 Q. Okay. How often would you say

69:16 that happens, that he's trying to drown

69:17 out the noise of your kids with music?

69:18 A. Often. Yeah. Unless, like,

69:19 he's left alone with them. Like, that's

69:20 different. He'll usually do one ear.

69:21 And I don't know if like maybe he keeps

69:22 the ear bud in the ear with the tinnitus.

69:23 But he'll have one ear open so that he

70:01 can hear what they're doing, like, just

70:02 in case somebody gets hurt or something

70:03 like that. He can help do dishes and

70:04 stuff like that and, like, be productive

70:05 while he's listening to the earphone, if

70:06 that makes sense.

70:09 - 70:17 Baker, Cindy (2020-09-30) 0:22

70:09 Is it your understanding that his hearing

70:10 loss and tinnitus is only in one ear?

70:11 A. I think his hearing loss is in

70:12 both ears and he has -- it's stronger

Page 7 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 8 of 107
70:13 tinnitus in one ear. But I don't know

70:14 for sure because I have not reviewed his

70:15 file, I do not know his medical

70:16 information. I do not know anything for

70:17 sure because I'm not him, so.

72:13 - 72:22 Baker, Cindy (2020-09-30) 1:33

72:13 reask the question. How long would you

72:14 say that Mr. Baker was the primary

72:15 caretaker?

72:16 A. At least two years.

72:17 Q. And what was that time period?

72:18 A. 2018 to 2020.

72:19 Q. Did Mr. Baker ever express to

72:20 you any stress or anxiety that he had in

72:21 being the primary caretaker?

72:22 A. No.

73:06 - 73:15 Baker, Cindy (2020-09-30) 0:27

73:06 Q. Other than hearing loss or

73:07 tinnitus, are you aware of any other

73:08 medical conditions that Mr. Baker has

73:09 been diagnosed with?

73:10 A. Diagnosed with? No.

73:11 Q. Any other medical conditions

73:12 that Mr. Baker has brought to your

73:13 attention that has been a cause of

73:14 concern to him?

73:15 A. No.

76:18 - 76:19 Baker, Cindy (2020-09-30) 0:06

76:18 Q. Have you ever observed any signs Re: [76:18 to 77:05] OVERRULED

76:19 of depression from Mr. Baker? Pltf Obj 611 (vague); 602;

speculation; 403

76:21 - 77:21 Baker, Cindy (2020-09-30) 2:40

76:21 A. I don't really know how to Re: [76:18 to 77:05] OVERRULED

76:22 answer that question. Pltf Obj 611 (vague); 602;

76:23 Q. Why is that? speculation; 403

77:01 A. Because any, like, signs of

77:02 depression in the past have been

77:03 short-lived, so I wouldn't know -- maybe

77:04 necessarily call them depression, maybe

77:05 just, you know, stress.

Page 8 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 9 of 107
77:06 Q. Can you describe for me these

77:07 signs of stress that you have observed?

77:08 A. When he returned from his

77:09 deployment, it was really hard for him to

77:10 get a job other than the Reserve job that

77:11 he had. So it was just -- it created a

77:12 lot of stress for him. And other than

77:13 that, maybe like daily -- if he doesn't

77:14 get like a lot of rest and stuff like

77:15 that, he can be like -- kind of like a

77:16 hermit and lock himself downstairs in the

77:17 basement and kind of do his own thing.

77:18 But we've been working on it because I

77:19 have depression and so I know how it

77:20 feels to feel depressed in any way. So

77:21 we work on it together as a team.

78:20 - 79:14 Baker, Cindy (2020-09-30) 1:10

78:20 Q. And during what time period have

78:21 you, or did you observe this frustration

78:22 and stress?

78:23 A. There's been a couple of times.

79:01 The first time was when he officially got

79:02 out of active duty. So when he returned

79:03 in about September or October of 2009.

79:04 And that was probably for about a couple

79:05 of months. And then again when he

79:06 returned from Afghanistan off of his

79:07 contract that he had, so when he returned

79:08 in 2014. But once he started in school,

79:09 he was better after that. And then the

79:10 last time that I saw like a glimpse of

79:11 that was when he finished his bachelor's

79:12 degree and the Army did not allow him to

79:13 go back in as an officer. He wanted to

79:14 go back in really, really bad.

81:11 - 82:05 Baker, Cindy (2020-09-30) 1:02

81:11 Q. Do you know when he started

81:12 going to see your psychologist?

81:13 A. It was probably 2014 when he

81:14 first got back from Afghanistan or 2015.

81:15 And it was more because I told him to go

81:16 see her because I was worried and I

Page 9 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 10 of 107
81:17 didn't want him to, like, actually get

81:18 depressed, so.

81:19 Q. And do you have a sense of how

81:20 often he has seen your psychologist since

81:21 then?

81:22 A. Like once or twice. Probably

81:23 once. Yeah.

82:01 Q. And this is a provider at the

82:02 Veteran Affairs?

82:03 A. Yes. Oh, the second time he

82:04 went was for when I asked him for a

82:05 divorce.

84:14 - 85:16 Baker, Cindy (2020-09-30) 1:12

84:14 Q. Have you ever seen Mr. Baker

84:15 wear the Combat Arms Version 2?

84:16 A. No.

84:17 Q. And were you living with Mr.

84:18 Baker when he was in the inactive

84:19 Reserves or the active Reserves from 2009

84:20 to 2012?

84:21 A. Yes.

84:22 Q. And at no point during that time

84:23 period did you ever see Mr. Baker wear

85:01 the Combat Arms Version 2?

85:02 A. No. Because he would do that --

85:03 if he did it at all, it would be at work

85:04 and I wasn't there.

85:05 Q. Do you know if he wore the

85:06 Combat Arms during that time period?

85:07 A. I do not know.

85:08 Q. Other than the AR-15s and the

85:09 handgun that you just referenced, are

85:10 there any other firearms that -- firearms

85:11 that you and Mr. Baker either own

85:12 together or one of you has owned and are

85:13 in the house?

85:14 A. There's a shotgun. I -- I

85:15 thought I mentioned it before. But we

85:16 have a shotgun.

86:04 - 86:14 Baker, Cindy (2020-09-30) 1:42

86:04 Q. Okay. So, when did you first

86:05 get the AR-15?

Page 10 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 11 of 107
86:06 A. 2013.

86:07 Q. And you said you sold the AR-15.

86:08 Do you remember when?

86:09 A. I feel like it was January of

86:10 2019. We sold both of them.

86:11 Q. And do you recall how many times

86:12 you accompanied Mr. Baker to shoot the

86:13 AR-15?

86:14 A. Twice.

87:03 - 88:02 Baker, Cindy (2020-09-30) 1:58

87:03 Q. Okay. And at that time, as far

87:04 as you remember, were you and Mr. Baker

87:05 both wearing orange foamies?

87:06 A. I was. And he -- I think

87:07 probably the first time he was wearing

87:08 orange foamies. The second time it could

87:09 have been either the orange foamies or

87:10 the headphones. I'm pretty sure he had

87:11 gotten the headphones by then. But I'm

87:12 not sure exactly what he wore.

87:13 Sometimes -- a lot of times he wears

87:14 orange foamies and the red headphones.

87:15 So that might have been what he was

87:16 doing, because it really does actually

87:17 seal everything in then.

87:18 Q. Did you guys wear any eye

87:19 protection?

87:20 A. Uh-huh. Yeah.

87:21 Q. And so, were there instances

87:22 then that you observed Mr. Baker shooting

87:23 the AR-15 with possibly the headset that

88:01 you described and eye protection?

88:02 A. Yeah.

88:03 - 89:01 Baker, Cindy (2020-09-30) 1:21

88:03 Q. Do you recall how many rounds

88:04 that you and Mr. Baker shot during

88:05 that -- those two times that you shot the

88:06 AR-15?

88:07 A. Sorry. I'm thinking. Probably

88:08 like two or three magazines full. So

88:09 probably like thirty rounds max. It's

88:10 hard to remember stuff like that, so I'm

Page 11 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 12 of 107
88:11 sorry.

88:12 Q. And I'm just asking for your

88:13 best recollection. So as far as you

88:14 recall, it was probably around thirty

88:15 rounds, two or three magazines?

88:16 A. Uh-huh.

88:17 Q. Is that right?

88:18 A. Yes.

88:19 Q. Now, do you know if Mr. Baker

88:20 ever recreationally shot the AR-15

88:21 separate from you?

88:22 A. I think he might have with our

88:23 friends maybe once or twice maybe. And

89:01 it's been when we lived in Wyoming.

89:11 - 89:18 Baker, Cindy (2020-09-30) 0:24

89:11 Q. Fair enough. Next you said that

89:12 you have a handgun; correct?

89:13 A. Uh-huh. We have two.

89:14 Q. Two handguns. Are they similar

89:15 models, or do you recall if they have any

89:16 differences?

89:17 A. One's a revolver. And the other

89:18 is a CZ 82.

91:03 - 92:03 Baker, Cindy (2020-09-30) 1:00

91:03 Q. No problem. Maybe I can ask it

91:04 this way. You've been recreationally

91:05 shooting approximately four times with --

91:06 with Mr. Baker in your life; correct?

91:07 A. Uh-huh. Yes.

91:08 Q. And when you go recreationally

91:09 shooting, is there a typical amount of

91:10 shots that, or rounds that you and Mr.

91:11 Baker would do when you'd go?

91:12 A. Probably like two to three

91:13 magazines, I feel like, is an average for

91:14 us. It also depends on like who is

91:15 shooting. I, like, prefer shooting the

91:16 rifles more, so I usually shoot most of

91:17 those, and then he usually prefers

91:18 shooting handguns more. But he doesn't

91:19 -- we don't usually -- we can't afford

91:20 handgun ammo as much as we can afford the

Page 12 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 13 of 107
91:21 rifle ammo. So that's why I'm not really

91:22 sure how much we've shot.

91:23 Q. Okay. So the two or three

92:01 magazines is usually for the rifle? Is

92:02 that right?

92:03 A. Yeah.

94:02 - 94:10 Baker, Cindy (2020-09-30) 0:22

94:02 Q. And like with the AR-15, is it Re: [94:02 to 94:10] SUSTAINED

94:03 your understanding that if Mr. Baker was Def Obj Improper counter

94:04 using either of the two handguns that we

94:05 were just discussing, he would have put

94:06 on either foamies or ear muffs?

94:07 A. Or both.

94:08 Q. Or both. And would he always

94:09 wear eye protection, as far as you know?

94:10 A. Yeah.

94:11 - 94:14 Baker, Cindy (2020-09-30) 0:08

94:11 Q. Okay. The last weapon I think

94:12 that you described was a hunting rifle?

94:13 Is that correct?

94:14 A. And a shotgun.

94:22 - 95:11 Baker, Cindy (2020-09-30) 1:40

94:22 Can you please tell me when you

94:23 first got the shotgun and if you still

95:01 have it.

95:02 A. We still have it. It had to be

95:03 before 2014 because we had it when we

95:04 lived in South Carolina. And then as far

95:05 as many -- how many rounds we've shot, I

95:06 would say no more than ten.

95:07 Q. Does that mean you believe

95:08 you've shot no more than ten rounds total

95:09 since you've had the shotgun?

95:10 A. No. Like per -- per time that

95:11 we've shot it. Yeah.

95:12 - 95:15 Baker, Cindy (2020-09-30) 0:16

95:12 Q. Okay. And how many times do you

95:13 think that you and Mr. Baker have shot

95:14 it?

95:15 A. Two. Three. Two? Two. Two.

Page 13 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 14 of 107
96:06 - 96:18 Baker, Cindy (2020-09-30) 1:40

96:06 Q. Okay. Has all of your

96:07 recreational shooting with Mr. Baker been

96:08 in Wyoming, or did you also do some in

96:09 South Carolina?

96:10 A. We did some in South Carolina.

96:11 Like one of the times was in South

96:12 Carolina, in Lake City, South Carolina.

96:13 Q. And can you describe that

96:14 experience for me?

96:15 A. That was the time where I do it

96:16 with my family. Yeah. We just get

96:17 together and shoot guns, like a bunch of

96:18 rednecks.

97:05 - 97:09 Baker, Cindy (2020-09-30) 0:15

97:05 Q. Okay. So as far as you recall,

97:06 your dad may have had some guns, but you

97:07 remember there probably being the AR-15

97:08 and the shotgun and the handgun?

97:09 A. Correct.

98:01 - 98:07 Baker, Cindy (2020-09-30) 0:20

98:01 Q. And do you recall approximately

98:02 how many rounds of each weapon you would

98:03 have shot?

98:04 A. Probably no more than ten.

98:05 Q. Would that be ten total or ten

98:06 per each gun?

98:07 A. Per each gun.

98:08 - 98:11 Baker, Cindy (2020-09-30) 0:15

98:08 Q. Do you recall if folks were

98:09 shooting guns at the same time? Or would

98:10 it be like a one-by-one situation?

98:11 A. One by one.

100:01 - 100:08 Baker, Cindy (2020-09-30) 0:23

100:01 Q. And just before I round this

100:02 out, for each of the guns and shooting

100:03 experiences that we just discussed, is it

100:04 your understanding that Mr. Baker would

100:05 either wear the orange foamies, the

Page 14 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 15 of 107
100:06 ear -- the headphones covering them or

100:07 both, and eye protection?

100:08 A. Yes. Safety first.

111:19 - 112:15 Baker, Cindy (2020-09-30) 1:19

111:19 Q. (By Ms. Ozurovich) Ms. Baker,

111:20 what is your understanding of Mr. Baker's

111:21 responsibilities when he served in the

111:22 military?

111:23 A. He was infantry. He drove a

112:01 Stryker. Sometimes he was a gunner.

112:02 That's about it.

112:03 Q. Do you have an understanding of

112:04 when he drove a Stryker versus being a

112:05 gunner while he was part of the military?

112:06 A. No. I do know that when I met

112:07 him, he was driving a Stryker.

112:08 Q. Did you and Mr. Baker ever

112:09 discuss what types of noises he was

112:10 exposed to while in the military?

112:11 A. Well, since I met him while he

112:12 was driving a Stryker, he would describe

112:13 to me that the -- the hole that he was in

112:14 as a driver was extremely loud. But

112:15 that's about it.

113:20 - 114:09 Baker, Cindy (2020-09-30) 1:36

113:20 Q. Other than the talking about the

113:21 noise from the Stryker, did you all ever

113:22 discuss any other types of noise

113:23 exposures?

114:01 A. No.

114:02 Q. Do you have any other knowledge

114:03 about any other potential noise exposures

114:04 or weapons exposures that he may have

114:05 had?

114:06 A. No.

114:07 Q. Have you ever seen a pair of the

114:08 Combat Arms Version 2?

114:09 A. No.

114:19 - 115:01 Baker, Cindy (2020-09-30) 0:13

114:19 Q. And other than the foamies or

114:20 ear muffs that we talked about earlier,

Page 15 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 16 of 107
114:21 have you ever seen Mr. Baker wear any

114:22 other types of hearing protection devices

114:23 since you've known him?

115:01 A. No.

121:17 - 122:01 Baker, Cindy (2020-09-30) 0:17

121:17 Q. Did you ever talk about the type

121:18 of training that Mr. Baker underwent at

121:19 Triple Canopy?

121:20 A. No.

121:21 Q. Did you ever talk about any

121:22 firearms that Mr. Baker used while at

121:23 Triple Canopy?

122:01 A. No.

122:20 - 123:01 Baker, Cindy (2020-09-30) 0:09

122:20 Q. Okay. So, to the extent Mr. Re: [122:20 to 123:12] OVERRULED

122:21 Baker did or did not wear hearing Pltf Obj 402; 403

122:22 protection devices, you don't know that

122:23 sitting here today?

123:01 A. No.

123:05 - 123:12 Baker, Cindy (2020-09-30) 0:22

123:05 Q. Do you know of any noise Re: [122:20 to 123:12] OVERRULED

123:06 exposures or noise that Mr. Baker Pltf Obj 402; 403

123:07 encountered while at Triple Canopy?

123:08 A. No.

123:09 Q. Do you know if his station was

123:10 ever under attack or ever experienced

123:11 live fire?

123:12 A. No.

125:07 - 125:23 Baker, Cindy (2020-09-30) 1:48

125:07 Q. So what I'm trying to understand

125:08 is you said that you noticed his hearing

125:09 getting -- hearing loss getting worse in

125:10 2012. And so, has his hearing loss

125:11 changed at all from 2012 to two thousand

125:12 -- or to 2020, as far as you've observed?

125:13 A. I don't know if it has changed

125:14 or if I've just become more aware of it

125:15 because he has communicated more.

125:16 Q. Okay. And so, is that true for

125:17 the entire time that you have known Mr.

Page 16 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 17 of 107
125:18 Baker, that you're not really sure if his

125:19 hearing loss has changed, it's more an

125:20 issue of whether you have become more

125:21 aware of his hearing loss?

125:22 A. Correct. That's the best way to

125:23 describe it, yes.

126:01 - 126:06 Baker, Cindy (2020-09-30) 0:17 Re: [126:01 to 126:05] SUSTAINED

126:01 Q. Do you know why Mr. Baker left Def Obj Improper counter

126:02 Triple Canopy in 2014?

126:03 A. To be home with me and to go

126:04 back to school. So he could see his son.

126:05 He wasn't there for the first two years,

126:06 so.

126:07 - 126:10 Baker, Cindy (2020-09-30) 0:14

126:07 Q. As far as you know, was Mr.

126:08 Baker's reason for leaving Triple Canopy

126:09 at all related to any medical condition?

126:10 A. No.

127:23 - 128:02 Baker, Cindy (2020-09-30) 0:05

127:23 Q. Have you ever heard of a company

128:01 called Phalanx Defense?

128:02 A. Yeah.

128:22 - 129:05 Baker, Cindy (2020-09-30) 0:19

128:22 Q. As far as you know, was Mr. Re: [128:22 to 129:05] OVERRULED

128:23 Baker ever a firearms instructor there? Pltf Obj MIL 34; 402; 403

129:01 A. No. I think he had hoped to be.

129:02 I think the plan was that maybe

129:03 eventually he would be. But then it just

129:04 kind of evolved and he came home and life

129:05 started again, like regular life.

140:03 - 140:12 Baker, Cindy (2020-09-30) 1:33

140:03 Is there anyone else that you

140:04 know of who is aware of Mr. Baker's

140:05 hearing loss or tinnitus?

140:06 A. No. He's a private person, so

140:07 he doesn't really, like, just tell people

140:08 things. Like, I don't even know if,

140:09 like, his job knew, you know, like, his,

140:10 like, office associate job where he got

Page 17 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 18 of 107
140:11 really close to people. I don't even

140:12 think they knew.

Page 18 of 18

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 19 of 107
Preserved Objections Previous Rulings New Objections Rulings

8:02 - 8:03 Dimoff, Brian (2020-10-03) 0:04

8:02 Q. Good morning, Mr. Dimoff.

8:03 A. Good morning.

11:07 - 12:05 Dimoff, Brian (2020-10-03) 1:58

11:07 Q. Are you represented today in this Re: [11:07 to 11:15] OVERRULED

11:08 deposition? Do you have a lawyer? Pltf Obj 401, 402, 403

11:09 A. Yes, I am. Mr. Fox is my

11:10 attorney.

11:11 Q. Okay. Am I correct that Mr. Fox

11:12 is representing you in connection with this

11:13 deposition here today in Mr. Lloyd Baker's

11:14 case?

11:15 A. Yes, sir.

11:16 Q. You know Lloyd Baker; fair to

11:17 say?

11:18 A. Yes.

11:19 Q. Can you just explain how you know

11:20 him?

11:21 A. We worked together for Triple

11:22 Canopy, and pretty much the entire time that we

11:23 worked for Triple Canopy, we were roommates for

11:24 most of that; we went through a certain series

11:25 of training together, and we became good

12:01 friends.

12:02 Q. All right. So you said good

12:03 friends. You consider yourself to be good

12:04 friends with Mr. Baker?

12:05 A. Yes, I do.

12:06 - 12:08 Dimoff, Brian (2020-10-03) 0:06

12:06 Q. Other than Triple Canopy, have

12:07 you guys done any other work together?

12:08 A. No.

12:09 - 12:23 Dimoff, Brian (2020-10-03) 1:36

12:09 Q. All right. Have you discussed Re: [12:17 to 12:23] OVERRULED

12:10 starting a business together? Pltf Obj 401, 402, 403

12:11 A. Yes.

12:12 Q. Can you describe that, just at a

12:13 general level?

12:14 A. We are in the process of opening

Designations

Page 1 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 20 of 107
12:15 an LLC here in Laramie, that's going to be a

12:16 firearms and hunting-related business.

12:17 Q. Okay. Is firearms something that

12:18 is a topic of interest for you?

12:19 A. Yes. I'm a gunsmith.

12:20 Q. Okay. And do you understand that

12:21 Mr. Lloyd Baker also has an interest in

12:22 firearms?

12:23 A. Yes.

13:07 - 13:22 Dimoff, Brian (2020-10-03) 1:42

13:07 Q. All right. And aside from

13:08 business, you described yourself as good

13:09 friends with Mr. Baker. What sort of

13:10 nonbusiness, sort of social relationships do

13:11 you have with Mr. Baker?

13:12 A. He's a friend. We talk about

13:13 stuff, even though we've been separated by

13:14 about half the country. He's just somebody

13:15 I've been talking to for -- ever since we left

13:16 Afghanistan. And we had always wanted to live

13:17 closer and hang out more and potentially start

13:18 a business together.

13:19 Q. You said that you recently moved

13:20 to Laramie. Was part of the reason for that,

13:21 Mr. Baker being in Laramie?

13:22 A. Yes, it was.

13:23 - 14:04 Dimoff, Brian (2020-10-03) 0:25

13:23 Q. Can you describe that?

13:24 A. Well, my wife and I are both

13:25 going to the University of Wyoming here, that

14:01 was probably half of it; and the other half is

14:02 the fact that he's here, and we want to open a

14:03 business here because it's a good environment

14:04 for that.

14:19 - 14:21 Dimoff, Brian (2020-10-03) 0:07

14:19 Q. Okay. About how often would you

14:20 say you see him?

14:21 A. Once a week.

17:13 - 17:23 Dimoff, Brian (2020-10-03) 1:30

Page 2 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 21 of 107
17:13 Q. Have you ever done any

17:14 extracurricular activities with Mr. Baker,

17:15 things like sports, or clubs, or things like

17:16 that?

17:17 A. Since I've been here, we've gone

17:18 fishing a few times. And when I've come out to

17:19 visit him, fishing, little bit of hiking; we

17:20 did go shooting a few times. That's -- That's

17:21 really about it.

17:22 When we were overseas in

17:23 Afghanistan, he was my gym partner.

18:01 - 19:07 Dimoff, Brian (2020-10-03) 1:26

18:01 Q. All right. And, again, we'll get

18:02 into the shooting in a little bit later. But

18:03 would that be, you know, recreational shooting

18:04 with Mr. Baker?

18:05 A. Yes.

18:06 Q. Can you describe that? It was at

18:07 an indoor range, an outdoor range? What were

18:08 you shooting?

18:09 A. Outdoors, just some assorted

18:10 firearms that we both own. There's a public

18:11 area that's authorized for shooting that we've

18:12 gone to a couple of times out here.

18:13 Q. Can you just list for me the

18:14 firearms that you would have used in the

18:15 recreational shooting you've done with Mr.

18:16 Baker?

18:17 A. I don't necessarily feel

18:18 comfortable listing the firearms I own. I

18:19 don't want that on the Record. I don't believe

18:20 it's the business of any government agency to

18:21 know what I own.

18:22 Q. Well -- So let me ask it this

18:23 way: So what firearms do you remember Mr.

18:24 Baker shooting recreationally when you went

18:25 recreational shooting with him?

19:01 A. I'm comfortable giving you the

19:02 calibers.

19:03 Q. Well, sure, let's start there.

19:04 A. 9 millimeter, .38 Special, 5.56,

19:05 and .308.

Page 3 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 22 of 107
19:06 Q. Anything else you can remember?

19:07 A. Not at this moment.

21:22 - 22:19 Dimoff, Brian (2020-10-03) 1:59

21:22 Mr. Dimoff, can you give us at

21:23 least the types -- in addition to the calibers,

21:24 the types of weapons that you and Mr. Baker

21:25 would have shot while doing some recreational

22:01 shooting together?

22:02 A. A 9 millimeter handgun, a .38

22:03 Special handgun, a 5.56 rifle, and a .308

22:04 rifle.

22:05 Q. Okay. Are those -- I know

22:06 nothing about guns, so are those -- and I

22:07 suspect that many on the jury may not, are

22:08 those automatic, semi-automatic, single shot?

22:09 I don't know if those are the right terms, what

22:10 kinds of rifles are those is my question?

22:11 A. The .308 and the 5.56 would be

22:12 semi-automatic. Because the ATF does not abide

22:13 by the Second Amendment, it's illegal to own a

22:14 fully automatic weapon in the United States

22:15 without a bunch of unnecessary licensing that

22:16 violates the Constitution. And the other ones

22:17 are -- the 9 millimeter would be a

22:18 semi-automatic and the .38 Special is a

22:19 revolver handgun.

23:03 - 23:18 Dimoff, Brian (2020-10-03) 1:39

23:03 Q. All right. Did you all wear Re: [23:12 to 23:18] OVERRULED

23:04 hearing protection during that recreational Def Obj Improper character

23:05 shooting? evidence; 401; 403

23:06 A. Yeah.

23:07 Q. What types of hearing -- What

23:08 type of hearing protection did you wear?

23:09 A. I can't remember if he has a set

23:10 of Peltors or if they are Walkers. I

23:11 personally prefer to use Peltors, and we both

23:12 wear earplugs. To be honest with you, we're

23:13 both paranoid about keeping the hearing that we

23:14 have left, so we usually use double protection.

23:15 Q. When you say double protection,

23:16 do you mean an in-ear earplug and over-the-ear

Page 4 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 23 of 107
23:17 muffs as well?

23:18 A. Yes.

23:19 - 24:02 Dimoff, Brian (2020-10-03) 0:17

23:19 Q. And when you went recreational

23:20 shooting with Mr. Baker, did you observe him

23:21 using both an in-ear earplug and over-the-ear

23:22 muffs?

23:23 A. Yes.

23:24 Q. Have you ever seen Mr. Baker --

23:25 personally seen Mr. Baker wear the Combat Arms

24:01 Version 2 Earplug?

24:02 A. No.

25:17 - 25:20 Dimoff, Brian (2020-10-03) 0:06

25:17 All right. And, Mr. Dimoff, do

25:18 you recognize what we've marked here as Exhibit

25:19 61?

25:20 A. Yes, I do.

26:12 - 27:11 Dimoff, Brian (2020-10-03) 1:57

26:12 Q. And in your email you write:

26:13 Facebook Messenger transcript including GIFs

26:14 and IMGs. Do you see that?

26:15 A. Yes.

26:16 Q. And so the Facebook Messenger

26:17 transcript that's referenced here, that's

26:18 something that you produced in response to the

26:19 subpoena; right?

26:20 A. Yes.

26:21 Q. And those were Facebook messages

26:22 exchanged between you and Mr. Baker; right?

26:23 A. Yes.

26:24 Q. How did you download that

26:25 transcript? Did you go on your Facebook and

27:01 just pull down all of the messages between you

27:02 and Mr. Baker?

27:03 A. I went on Facebook. They have a

27:04 feature where you can download your messenger

27:05 history. And I downloaded what was available

27:06 and sent it in. This is not the Facebook

27:07 account that I originally had the whole time

27:08 that I've known Mr. Baker. That account was

Page 5 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 24 of 107
27:09 closed down during a divorce, and I no longer

27:10 have access to any of the data. It's been

27:11 closed for several years.

32:08 - 32:13 Dimoff, Brian (2020-10-03) 0:11

32:08 Q. All right. And before we look at

32:09 the Facebook messages, just as a general

32:10 matter, am I correct that you are truthful in

32:11 your Facebook messages that you sent to Mr.

32:12 Baker?

32:13 A. Yes.

33:20 - 34:03 Dimoff, Brian (2020-10-03) 0:25

33:20 Q. For the Record, we'll mark tab 22

33:21 as Exhibit 63.

33:22 And you can take a minute to look

33:23 at it. But my first question will be, sir,

33:24 whether these are true and correct copies of

33:25 Facebook messages that were exchanged between

34:01 you and Mr. Baker between July 4th, 2020, and

34:02 September 14, 2020?

34:03 A. Yes.

35:06 - 36:18 Dimoff, Brian (2020-10-03) 1:29

35:06 Q. Okay. So if you have Exhibit 63

35:07 open, just for the Record, I want to confirm a

35:08 few things about the formatting of this.

35:09 So you'll see on the first page

35:10 of Exhibit 63, and for the Record, it's the

35:11 page that has the number stamp at the bottom

35:12 right-hand corner 00320.

35:13 Do you see at the top of that,

35:14 there's the date and timestamp that says

35:15 September 14, 2020, 11:40 a.m.?

35:16 A. Yes.

35:17 Q. And under that it has your name,

35:18 Brian Dimoff; right?

35:19 A. Uh-huh.

35:20 Q. Is that yes?

35:21 A. Yes.

35:22 Q. And then under Brian Dimoff,

35:23 there is a message that you sent to Mr. Baker;

35:24 true?

Page 6 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 25 of 107
35:25 A. Yes.

36:01 Q. So my question is: Where, in

36:02 Exhibit 63, we see a date and a timestamp with

36:03 your name under it and a message under it, that

36:04 would be a true and correct copy of a message

36:05 that you sent at that date and time to Mr.

36:06 Baker; true?

36:07 A. Yes.

36:08 Q. And if you look further down,

36:09 there's another date and timestamp September

36:10 14, 2020, 11:11 a.m., with Mr. Baker's name

36:11 under it and then a message. Do you see that?

36:12 A. Yes.

36:13 Q. And similar to your messages,

36:14 whenever we see a date and timestamp with Mr.

36:15 Baker's name under it and a message, that would

36:16 have been a message that you received from Mr.

36:17 Baker at that date and time; true?

36:18 A. Yes.

37:02 - 37:20 Dimoff, Brian (2020-10-03) 1:35

37:02 Q. We'll start there. So you'll see

37:03 there's a message in Exhibit 63 from September

37:04 10, 2020, at three o'clock p.m., from Mr.

37:05 Baker, to you, that says: My lawyer said he

37:06 will be calling you today.

37:07 Do you see that?

37:08 A. Yes.

37:09 Q. Okay. That's a message that you

37:10 received from Mr. Baker on September 10, 2020,

37:11 at 3 p.m.; true?

37:12 A. Yes.

37:13 Q. Okay. And then at 3:01 p.m. you

37:14 say: Just got off the phone. Nice guy.

37:15 And that's a message that you

37:16 sent to Mr. Baker; right?

37:17 A. Yes.

37:18 Q. Who called you? Was that Mr. Fox

37:19 or somebody else?

37:20 A. That was Mr. Fox.

38:06 - 38:09 Dimoff, Brian (2020-10-03) 0:07

38:06 Q. Okay. Well, let me ask this: Is

Page 7 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 26 of 107
38:07 this the first time that you spoke with Mr.

38:08 Fox?

38:09 A. Yes.

39:07 - 39:20 Dimoff, Brian (2020-10-03) 1:46

39:07 Q. All right. So I'll ask you the

39:08 question again. Am I correct that by September

39:09 10, 2020, you had become aware that a subpoena

39:10 had been issued asking you for some documents

39:11 in the case?

39:12 A. Yes.

39:13 Q. All right. About how long was

39:14 your call with Mr. Fox on September 10th?

39:15 A. I don't recall.

39:16 Q. Okay. If you'll look on the page

39:17 number stamped 322, there's a reference to

39:18 spending thirty minutes talking. Does that

39:19 sound -- is that accurate?

39:20 A. I think so.

40:05 - 40:23 Dimoff, Brian (2020-10-03) 1:45

40:05 Q. Do you see there's a message from Re: [40:05 to 40:23] OVERRULED

40:06 Mr. Baker, September 10, 2020, 7:43 p.m. I'll Pltf Obj MIL 36; 403; 402.

40:07 just read it for the Record: Not to pry, but

40:08 if they aren't taking you on for the earplugs,

40:09 why are they representing you? And feel free

40:10 to tell me to F off.

40:11 Do you see that message?

40:12 A. Yes.

40:13 Q. Okay. And then you reply a

40:14 minute later to Mr. Baker saying: No, they are

40:15 taking me on, but it will have to wait until I

40:16 have presented all of my info in favor of your

40:17 claim.

40:18 Do you see that?

40:19 A. Yes.

40:20 Q. Okay. So my first question is,

40:21 is your message, September 10, 2020, 7:44 p.m.

40:22 to Mr. Baker, accurate?

40:23 A. As far as I know.

41:14 - 41:19 Dimoff, Brian (2020-10-03) 0:16

41:14 Q. Okay. So my question is, is it Re: [41:14 to 42:01] OVERRULED

Page 8 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 27 of 107
41:15 true that on that call that you had with Mr. Pltf Obj MIL 36;

41:16 Fox on the 10th of September, Mr. Fox told you mischaracterizes evidence;

41:17 that your own claim against 3M would have to 611; 403; 402.

41:18 wait until you presented information in Mr.

41:19 Baker's case in his favor?

41:24 - 42:01 Dimoff, Brian (2020-10-03) 0:11

41:24 A. Something along those lines. I Re: [41:14 to 42:01] OVERRULED

41:25 wouldn't say that necessarily that's exactly Pltf Obj MIL 36;

42:01 what was said, but something close to that. mischaracterizes evidence;

611; 403; 402.

42:02 - 42:20 Dimoff, Brian (2020-10-03) 1:52

42:02 Q. Okay. And when you say close to Re: [42:02 to 42:20] OVERRULED

42:03 that, I don't mean to use the same exact words, Pltf Obj MIL 36;

42:04 but in sum or substance, is that a fair summary mischaracterizes evidence;

42:05 of what was said, which is, that you can make a 611; 403; 402.

42:06 claim against 3M, but your claim will have to

42:07 wait until you've presented information in Mr.

42:08 Baker's favor in his claim?

42:09 MR. FOX: Objection. Form. Same Re: [42:09 to 42:09] OVERRRULED

42:10 objection. Mischaracterizes the evidence. Def Obj 401

42:11 Q. You can answer, sir.

42:12 A. I wouldn't necessarily say -- I

42:13 think I understand the context that you're

42:14 trying to put this in by using the word favor

42:15 repeatedly. And that's not the context it's

42:16 being used in. It just means providing

42:17 information, not necessarily -- information

42:18 that supports the case, not necessarily saying

42:19 I have to support his claim first kind of

42:20 thing.

42:21 - 43:07 Dimoff, Brian (2020-10-03) 0:24

42:21 Q. Okay. Well, so I was using the Re: [42:21 to 43:12] OVERRULED

42:22 word favor. So your message says: In favor of Pltf Obj MIL 36;

42:23 your claim; right? mischaracterizes evidence;

42:24 A. Yes. 611; 403; 402.

42:25 Q. That's the message that you sent;

43:01 true?

43:02 A. Yes.

43:03 Q. Okay. Okay. So is it accurate

43:04 to say that Mr. Fox told you on the call on

Page 9 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 28 of 107
43:05 September 10th that your own claim against 3M

43:06 would have to wait until you presented

43:07 information in support of Mr. Baker's claim?

43:11 - 43:12 Dimoff, Brian (2020-10-03) 0:06

43:11 A. Until I presented information Re: [42:21 to 43:12] OVERRULED

43:12 regarding his claim. Pltf Obj MIL 36;

mischaracterizes evidence;

611; 403; 402.

43:13 - 43:21 Dimoff, Brian (2020-10-03) 1:31

43:13 Q. Okay. Well, so I'm just -- So

43:14 then can you explain why your message on

43:15 September 10th says: Presented all my info in

43:16 favor of your claim, rather than just presented

43:17 information regarding your claim?

43:18 A. That's the wording I used. I

43:19 mean, that's really all I got. It's not

43:20 necessarily meant to be used in that context of

43:21 what I believe you're trying to insinuate.

43:22 - 44:18 Dimoff, Brian (2020-10-03) 1:55

43:22 Q. I'm not trying to insinuate --

43:23 Well, let me ask this: Can you tell me why you

43:24 said: In favor of your claim, in this message

43:25 on September 10th, rather than just, you know,

44:01 until I testify in your case or until I sit for

44:02 a deposition in your case?

44:03 A. Because sometimes I don't always

44:04 use big words.

44:05 Q. Well, I mean, I think you're

44:06 drawing a distinction between presenting

44:07 information, whether it's good or bad, in Mr.

44:08 Baker's case and presenting information that is

44:09 in favor of Mr. Baker's case. Is that the

44:10 distinction you're trying to draw today?

44:11 A. Yes. That's the distinction I'm

44:12 trying to draw. That may have been the wording

44:13 I used, but that wasn't necessarily the

44:14 intention. You have to keep in mind that for

44:15 the first time in a long time, I was going back

44:16 to school and up until three in the morning

44:17 doing school work, so my brain wasn't always at

Page 10 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 29 of 107
44:18 full capacity.

45:02 - 45:08 Dimoff, Brian (2020-10-03) 0:17

45:02 Q. All right. So are you saying

45:03 that in your conversation with Mr. Fox there

45:04 was no discussion about whether the information

45:05 that you would be presenting in Mr. Baker's

45:06 case would be favorable or not favorable for

45:07 Mr. Baker's case?

45:08 A. Correct.

45:09 - 45:21 Dimoff, Brian (2020-10-03) 1:42

45:09 Q. All right. Do you know why your Re: [45:09 to 45:21] OVERRULED

45:10 claim would have to wait until you've presented Pltf Obj MIL 36; 403; 402.

45:11 information in Mr. Baker's case? Do you have

45:12 any understanding of that?

45:13 A. Honestly, no. But if Mr. Baker

45:14 trusts Mr. Fox, I'm inclined to trust him as

45:15 well, so I took his opinion.

45:16 Q. Okay. Do you have any

45:17 understanding of what would happen to your

45:18 claim in Mr. Fox's representation of you in

45:19 connection with that claim if you don't provide

45:20 favorable information for Mr. Baker?

45:21 A. No.

47:01 - 47:07 Dimoff, Brian (2020-10-03) 0:17

47:01 Q. So am I correct that you were Re: [47:01 to 47:07] OVERRULED

47:02 informed that your claim would have to wait Pltf Obj MIL 36; 403; 402.

47:03 until you provided testimony in Mr. Baker's

47:04 case, but you didn't ask and you have no

47:05 understanding as to why that is; is that a fair

47:06 statement?

47:07 A. Correct.

48:24 - 49:07 Dimoff, Brian (2020-10-03) 0:17

48:24 Q. Okay. Do you see in the middle

48:25 of the page, it's a message that you sent to

49:01 Mr. Baker, September 7, 2020, 1:38 p.m., and

49:02 I'll just read it for the Record: All I know

49:03 is you're half deaf, always wore earplugs when

49:04 needed, and you used the 3M bullshit just like

49:05 I did, and an ellipsis.

Page 11 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 30 of 107
49:06 Do you see that message?

49:07 A. Yes.

49:22 - 50:11 Dimoff, Brian (2020-10-03) 1:36

49:22 Q. So I'm correct, this message on

49:23 September 7th, is that the only message in

49:24 which you've exchanged with Mr. Baker relating

49:25 to his hearing loss or his use of earplugs?

50:01 A. Yes.

50:02 Q. All right. And you would agree

50:03 with me that this message is being exchanged in

50:04 discussion with this lawsuit, right, and by

50:05 this lawsuit I mean Mr. Baker's lawsuit against

50:06 3M?

50:07 A. As far as I know, yes.

50:08 Q. Okay. So in the message you say:

50:09 All I know is you're half deaf. Do you see

50:10 that language?

50:11 A. Yes.

53:04 - 53:19 Dimoff, Brian (2020-10-03) 1:38

53:04 Q. Okay. When you -- When you --

53:05 your -- When you were deployed for Triple

53:06 Canopy, that was under a contract with Triple

53:07 Canopy; is that true?

53:08 A. I was an employee of Triple

53:09 Canopy, and the contract was to the Department

53:10 of Defense.

53:11 Q. I see. And so in becoming a

53:12 Triple Canopy employee and being -- First of

53:13 all, where were you deployed with Triple Canopy

53:14 with Mr. Baker?

53:15 A. To Afghanistan.

53:16 Q. Okay. And what was your -- What

53:17 were you doing in Afghanistan for Triple

53:18 Canopy?

53:19 A. Security.

56:05 - 58:03 Dimoff, Brian (2020-10-03) 2:50

56:05 Q. Right. But I mean, my only --

56:06 What I'm trying to get at is, you were cleared

56:07 to be deployed, clearly, to Afghanistan as part

56:08 of your Triple Canopy work, both you and Mr.

Page 12 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 31 of 107
56:09 Baker, true, because you were ultimately

56:10 deployed?

56:11 A. From a physical readiness

56:12 standpoint, yes, absolutely.

56:13 Q. Okay. And you've heard the term

56:14 sort of being declared fit for duty by -- in

56:15 connection with your Triple Canopy work, have

56:16 you ever heard that term?

56:17 A. Yes.

56:18 Q. Am I correct that both you and

56:19 Mr. Baker were declared fit for duty to do the

56:20 work you were doing with Triple Canopy in

56:21 Afghanistan?

56:22 A. Yes.

56:23 Q. And part of the physical

56:24 examination that was done included the hearing

56:25 test that you described; true?

57:01 A. Yes.

57:02 Q. Okay. And Triple Canopy never

57:03 said, in sum and substance to you, that, you

57:04 know, your hearing loss is at a level that we

57:05 can't declare you fit for duty to do the work

57:06 that you're expected to do in Afghanistan;

57:07 true?

57:08 A. Triple Canopy would not be the

57:09 approving authority on that, the Department of

57:10 Defense would. And the Department of Defense

57:11 does not care, realistically, if you have

57:12 hearing loss, until after you get out and they

57:13 have to start paying you.

57:14 Q. Well, you're saying the

57:15 Department of Defense doesn't care if you have

57:16 hearing loss that would impede your ability to

57:17 do your job in Afghanistan?

57:18 A. Not necessarily, no. What I

57:19 mean, is that as long as you are still capable

57:20 of doing your job, they will accept you whether

57:21 you have hearing loss or not. The time that

57:22 the hearing loss actually comes into play is

57:23 when you are getting out or after you are

57:24 getting back. They measure any hearing damage

57:25 that may have occurred; and when you're getting

58:01 out, you may get compensated for any hearing

Page 13 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 32 of 107
58:02 damage that you have. It's not guaranteed that

58:03 you will, but you may.

58:04 - 58:13 Dimoff, Brian (2020-10-03) 0:28

58:04 Q. Okay. And so I guess that's Re: [58:04 to 58:09] SUSTAINED

58:05 pretty much my question. You were able to do Def Obj 401, 403

58:06 your job effectively, notwithstanding whatever

58:07 hearing loss you have; true?

58:08 A. With the assistance of hearing

58:09 enhancing Peltors, yes.

58:10 Q. Okay. Do you know if Mr. Baker

58:11 wore -- I'm sorry, what did you call them?

58:12 Hearing -- I missed the term.

58:13 A. Hearing enhancement Peltors.

58:14 - 58:17 Dimoff, Brian (2020-10-03) 0:07

58:14 Q. Okay. So you wore hearing

58:15 enhancement Peltors during your employment with

58:16 Triple Canopy to Afghanistan?

58:17 A. Any time I was on duty.

59:24 - 60:10 Dimoff, Brian (2020-10-03) 1:30

59:24 Q. All right. And did you say Mr. Re: [60:07 to 60:09] SUSTAINED

59:25 Baker wore a similar product but not the same Def Obj 401, 403, 602, 701

60:01 product?

60:02 A. Similar product. I don't know --

60:03 I don't remember what model or brand it was.

60:04 They looked like Peltors. I know, today, I

60:05 believe he uses Walkers. I don't know if

60:06 Walker was out as a company at the time.

60:07 Peltor was kind of -- They kind of had a

60:08 monopoly on the market, especially in the

60:09 military crowd, for a number of years. I --

60:10 They look very similar to mine.

60:11 - 60:14 Dimoff, Brian (2020-10-03) 0:10

60:11 Q. Okay. And you observed Mr. Baker

60:12 using these while he was exercising his duties

60:13 in Afghanistan with Triple Canopy?

60:14 A. Yes.

61:23 - 62:05 Dimoff, Brian (2020-10-03) 0:20

61:23 Q. Okay. If I were to describe his

Page 14 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 33 of 107
61:24 hearing loss as being minor, would you agree

61:25 with that characterization?

62:01 A. No.

62:02 Q. You would say that's an

62:03 inaccurate characterization?

62:04 A. I would say it's highly

62:05 inaccurate.

63:09 - 64:02 Dimoff, Brian (2020-10-03) 1:42

63:09 Q. I'm correct, I think we said

63:10 earlier, you did not serve with Mr. Baker in

63:11 the military; true?

63:12 A. Correct.

63:13 Q. Okay. So you don't have personal

63:14 knowledge about whether he always wore earplugs

63:15 when needed during his service in the military;

63:16 true?

63:17 A. That is true.

63:18 Q. Okay. And the same with him, his

63:19 use of the Combat Arms Version 2, I think you

63:20 said earlier that you've never personally seen

63:21 him use that product; true?

63:22 A. That is correct.

63:23 Q. Okay. Also, given that you

63:24 weren't there, same answer, you've never

63:25 personally seen him use it during his service

64:01 in the military; true?

64:02 A. Yes.

66:13 - 66:20 Dimoff, Brian (2020-10-03) 0:22

66:13 Q. All right. If you go back to Re: [66:13 to 66:20] OVERRULED

66:14 page 322 of Exhibit 63, please. Pltf Obj MIL 36; 403; 402.

66:15 A. Okay.

66:16 Q. Do you see the reference to the

66:17 thirty-minute phone call that you had with Mr.

66:18 Fox in your September 10, 2020, 7:35 p.m.

66:19 message?

66:20 A. Yes.

70:09 - 70:22 Dimoff, Brian (2020-10-03) 1:34

70:09 Q. Okay. And so going back to your Re: [70:09 to 71:06] OVERRULED

70:10 message about we will have to wait until I have Pltf Obj MIL 36; cumulative;

70:11 presented all of my info in favor of your 403; 402.

Page 15 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 34 of 107
70:12 claim, am I correct that that discussion would

70:13 have occurred towards the end of your call with

70:14 Mr. Baker on September 10th?

70:15 A. Yes. I don't remember the exact

70:16 wording, but I think it was something along the

70:17 lines of: We'll have to wait until after

70:18 Baker's process is over before we can consider

70:19 moving forward with yours.

70:20 Q. And you were given no reason for

70:21 that?

70:22 A. No.

72:09 - 72:20 Dimoff, Brian (2020-10-03) 0:27

72:09 Q. You'll see, sir, there's a few

72:10 different messages exchanged between you and

72:11 Mr. Baker on July 27, 2020, you know, around

72:12 10:35 in the morning relating to a business

72:13 plan and it finally happening in a business

72:14 front, do you see that?

72:15 A. Yes.

72:16 Q. And those are references to the

72:17 gun business that you described a little bit

72:18 earlier, that you and Mr. Baker are planning on

72:19 starting?

72:20 A. Correct.

73:25 - 74:06 Dimoff, Brian (2020-10-03) 0:16

73:25 Q. Okay. And, again, I'm not -- I'm

74:01 not asking -- I don't want to get into the

74:02 specifics of the business plan, at least not

74:03 yet. So just in terms of general areas, the

74:04 business would be selling firearms, doing some

74:05 gunsmithing; is that fair?

74:06 A. Yes, it would.

74:11 - 74:24 Dimoff, Brian (2020-10-03) 1:36

74:11 Q. Okay. Is -- What is Mr. Baker's

74:12 role in the business? Is he -- Is he an

74:13 investor in the business; is he making a

74:14 capital contribution at all to the business?

74:15 A. Me and him are partners on this.

74:16 We're -- It's -- It's a fifty/fifty thing.

74:17 Q. Okay. So whatever the initial

Page 16 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 35 of 107
74:18 investment in the business is, that would be

74:19 split fifty/fifty?

74:20 A. Probably, yes.

74:21 Q. Okay. And the profits would be

74:22 split fifty/fifty as you-all are business

74:23 partners, to the extent this gets going?

74:24 A. Yes.

75:10 - 75:14 Dimoff, Brian (2020-10-03) 0:14

75:10 Q. Okay. But as far as any other

75:11 investments into the business, as of today,

75:12 other than what you just described for you, Mr.

75:13 Baker has not put any money into the business?

75:14 A. No. Just time. Lot of time.

77:09 - 78:07 Dimoff, Brian (2020-10-03) 1:00

77:09 Q. Okay. Do you see there's --

77:10 There's a discussion here of what happened

77:11 during Mr. Baker's training with his potential

77:12 contract with Triple Canopy in 2020.

77:13 Do you see those messages in

77:14 general?

77:15 A. Yes.

77:16 Q. Okay. And you asked Mr. Baker,

77:17 in August 24, 2020, 11:23 a.m. message, I'm

77:18 correct that you asked Mr. Baker, sort of, what

77:19 happened with his training; right?

77:20 Do you see that?

77:21 A. Yes.

77:22 Q. And then he gives an explanation

77:23 of what happened in his August 24, 2020, 11:28

77:24 message. Do you see that?

77:25 A. Yes.

78:01 Q. Other than what Mr. Baker

78:02 describes in his August 24, 2020, messages

78:03 relating to his 2020 Triple Canopy contract, do

78:04 you have any other information as to what

78:05 happened during the training Mr. Baker was

78:06 undergoing in connection with that contract?

78:07 A. No.

78:11 - 79:05 Dimoff, Brian (2020-10-03) 1:50

78:11 Q. In his August 24, 11:33 message,

Page 17 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 36 of 107
78:12 Mr. Baker says: It was a muscle memory thing

78:13 from oral SOPs. Do you see that?

78:14 A. Yes.

78:15 Q. You understand SOPs there, was it

78:16 your understanding that that refers to standard

78:17 operating procedures?

78:18 A. Yes.

78:19 Q. Then you respond: I know how

78:20 that goes.

78:21 Do you see that?

78:22 A. Yes.

78:23 Q. What did you mean by that?

78:24 A. You learn how to do something for

78:25 a certain way for a long amount -- for a long

79:01 period of time, muscle memory kicks in. You do

79:02 a certain movement, sometimes procedures and

79:03 methods may change due to a new school of

79:04 thought, sometimes you just revert back to your

79:05 training.

80:09 - 80:14 Dimoff, Brian (2020-10-03) 0:14

80:09 All I'm getting at is, when he

80:10 says it's muscle memory, is the movement that

80:11 he describes in his message consistent with the

80:12 way that it was done, you know, when you-all

80:13 were deployed in the military?

80:14 A. Yes.

96:25 - 97:18 Dimoff, Brian (2020-10-03) 1:54

96:25 Q. Yeah. Okay. Did you -- Have you

97:01 -- Have you discussed with Mr. Baker the Combat

97:02 Arms Version 2 Earplug at all, other than what

97:03 was in the messages that we looked at in

97:04 Exhibit 63?

97:05 A. I think at one time there may

97:06 have been a phone conversation, this was a

97:07 while ago. For quite a while, you couldn't get

97:08 on Facebook without -- if you had anything

97:09 military related and you had a Facebook

97:10 account, it was -- it was like you opened up

97:11 your page and there was thirty ads for were you

97:12 in the military between now and now. And I

97:13 think there might have been a conversation

Page 18 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 37 of 107
97:14 about that, like: Dude, are you seeing this?

97:15 Because I used this. Did you?

97:16 Q. Okay. And those would have been

97:17 like lawyer advertisements for the litigation?

97:18 A. Yes.

98:14 - 98:16 Dimoff, Brian (2020-10-03) 0:05

98:14 Q. Okay. So these would have been

98:15 Facebook ads is what you're referring to?

98:16 A. Yes.

99:19 - 100:02 Dimoff, Brian (2020-10-03) 0:21

99:19 Q. Okay. So before December 2019.

99:20 And on that conversation, was this lawsuit

99:21 discussed at all?

99:22 A. No.

99:23 Q. All right. And did either you or

99:24 Mr. Baker, in that conversation, talk about

99:25 bringing your own claim relating to the Combat

100:01 Arms Version 2?

100:02 A. No.

102:07 - 102:17 Dimoff, Brian (2020-10-03) 0:28

102:07 Q. Okay. All right. And so I

102:08 think, we -- we got into this a little bit

102:09 earlier, but jumping forward in time to your

102:10 work with Triple Canopy, did you and Mr. Baker

102:11 do the training for that deployment together or

102:12 separately?

102:13 A. Some of it was separate, some of

102:14 it was together. He started about a month

102:15 after I did, but some things we caught up with

102:16 each other on as the training kind of condensed

102:17 and less people were in the program.

103:05 - 104:11 Dimoff, Brian (2020-10-03) 2:40

103:05 Q. Okay. And in connection with

103:06 that, did you fire firearms during that period

103:07 of time?

103:08 A. No more or less than you'd see in

103:09 a standard Army technical manual for

103:10 qualification.

103:11 Q. Okay. Was that done on an

Page 19 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 38 of 107
103:12 outdoor range, indoors?

103:13 A. Outdoor.

103:14 Q. Outdoor. And what weapons were

103:15 those that were used during that process?

103:16 A. M4, M16, M9 or Glock 19, 240, M2,

103:17 Mark 19.

103:18 Q. And that qualification process,

103:19 is that part of the process that you went

103:20 through together with Mr. Baker or separately?

103:21 A. I remember seeing him at the

103:22 qualification range for the Mark 19; I know he

103:23 was there, but we hadn't officially met yet.

103:24 Q. Okay. And is it your

103:25 understanding that he would have gone through,

104:01 you know, the same process that you went

104:02 through as part of this?

104:03 A. Yes.

104:04 Q. How many people -- So on the

104:05 outdoor range, how many people would be firing

104:06 these weapons at the same time? Is it one at a

104:07 time? Multiple people?

104:08 A. The Mark 19, I think was two at a

104:09 time; the .50 was three at a time; as far as

104:10 rifles and handguns, you could have up to ten

104:11 at a time.

104:19 - 105:04 Dimoff, Brian (2020-10-03) 0:25

104:19 Q. So it would be the -- The process

104:20 that Triple Canopy would have used is

104:21 consistent with the government qualification

104:22 process?

104:23 A. Yes. Well, it was a government

104:24 program, it wasn't that Triple Canopy dictated

104:25 it.

105:01 Q. I see. And did you use eye

105:02 protection as well, in addition to hearing

105:03 protection during this application process?

105:04 A. It's mandatory so, yes.

106:04 - 106:20 Dimoff, Brian (2020-10-03) 1:53

106:04 Q. Okay. Can you describe, at a

106:05 high level, what your job duties -- Well, let

106:06 me take a step back. Were your job duties and

Page 20 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 39 of 107
106:07 Mr. Baker's job duties the same during your

106:08 employment with Triple Canopy? Did you have

106:09 the same function?

106:10 A. Sometimes, yes.

106:11 Q. Okay. And can you describe --

106:12 Can you describe what those duties were to the

106:13 extent they were shared with Mr. Baker?

106:14 A. Area security, post security,

106:15 guarding checkpoints, guarding areas of

106:16 interest, guarding classified areas, protecting

106:17 the perimeter.

106:18 Q. Anything else you can think of?

106:19 A. Not as far as his duties went,

106:20 no.

108:04 - 108:10 Dimoff, Brian (2020-10-03) 0:17

108:04 Understanding you were wearing hearing

108:05 protection, can you describe what those

108:06 vehicles would be and the types of noises that

108:07 they would generate?

108:08 A. Military, five-ton, seven-ton

108:09 trucks, like the typical semi-truck would make

108:10 at idle.

108:21 - 108:25 Dimoff, Brian (2020-10-03) 0:10

108:21 Q. Okay. About how often would you

108:22 come into contact with these five- or seven-ton

108:23 trucks while being deployed in Afghanistan with

108:24 Triple Canopy?

108:25 A. A few times a day.

109:21 - 110:05 Dimoff, Brian (2020-10-03) 0:27

109:21 Q. About how long was each shift?

109:22 A. Twelve hours.

109:23 Q. Was that a pretty standard time

109:24 frame?

109:25 A. Unfortunately, yes.

110:01 Q. Okay. As part of manning a

110:02 checkpoint, did you have to converse at all

110:03 with, you know, drivers coming in and out of

110:04 the checkpoint? Was that part of the job also?

110:05 A. Sometimes, yes.

Page 21 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 40 of 107
113:20 - 115:15 Dimoff, Brian (2020-10-03) 2:59

113:20 Q. Okay. And can you just talk a Re: [113:20 to 115:07] OVERRULED

113:21 little bit more about what that -- When you say Pltf Obj nonresponsive

113:22 stuff that you-all have been through, you know,

113:23 what was that a reference to? I mean -- And I

113:24 understand you've been in the military. Was

113:25 there something -- Can you describe that a

114:01 little more?

114:02 A. We both deployed, we were both in

114:03 a combat arms career field, there's a certain

114:04 level of contact that people in our career

114:05 fields are -- were regularly dealing with at

114:06 the time that we were in the service.

114:07 We were in the military at the

114:08 same time. I know that we deployed around the

114:09 same times, so we would have experienced the

114:10 same types of thing. Neither of us was what is

114:11 commonly referred to as a Fob-it, which is

114:12 somebody who sits on the Fob and is useless.

114:13 There's two types of people in

114:14 the military, those who actually do something,

114:15 and those who make sure that we can do it; and

114:16 those of us who do something, don't really like

114:17 the other part very much because they are

114:18 entitled brats, and they don't deserve to wear

114:19 the same uniform.

114:20 Anyways, that kind of attitude is

114:21 something that follows through in the whole

114:22 combat arms career field of artillery, Tankers,

114:23 Scouts, Infantry, Special Forces, Rangers, all

114:24 these people. If you're part of the core, like

114:25 5 percent of the military that actually fights,

115:01 there's a language that's involved there,

115:02 there's a commonality in experience, in

115:03 training, in what happened during deployments.

115:04 And if you were overseas in '07, you knew what

115:05 happened in '07; if you were overseas in '05,

115:06 you knew what happened in '05, just that kind

115:07 of thing.

115:08 Q. Okay. So was it -- you know, was

115:09 it sort of an understanding that you both would

115:10 have been, you know, exposed to noise during

115:11 your military service, so that's sort of why --

Page 22 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 41 of 107
115:12 you know, what you were talking about, of

115:13 course I have hearing loss, I was exposed to

115:14 noise, I served in the military?

115:15 A. Yes.

119:11 - 119:12 Dimoff, Brian (2020-10-03) 0:07

119:11 Q. Have you ever observed any signs Re: [119:11 to 119:15] OVERRULED

119:12 of anxiety from Mr. Baker? Pltf Obj 611

119:14 - 119:15 Dimoff, Brian (2020-10-03) 0:16

119:14 A. No more or less than I would Re: [119:11 to 119:15] OVERRULED

119:15 expect from another combat veteran. Pltf Obj 611

120:20 - 121:06 Dimoff, Brian (2020-10-03) 1:30

120:20 Q. Okay. I think I may have asked

120:21 this earlier, and I apologize if I did. With

120:22 respect to the recreational shooting you-all

120:23 have done together, how frequently was that

120:24 activity done? Was it a weekly thing, a

120:25 monthly thing?

121:01 A. I mean, it's -- It's been three

121:02 or four times since we've been home from

121:03 Afghanistan. Because we -- He -- Up until

121:04 recently, he lived in Wyoming and I lived in

121:05 Wisconsin. It's not like I'm going to take a

121:06 twenty-minute drive to hang out with him.

121:19 - 122:01 Dimoff, Brian (2020-10-03) 0:23

121:19 Q. About how many rounds would you

121:20 shoot, on average, during that three to four

121:21 times?

121:22 A. Ammo is expensive right now, so I

121:23 mean, maybe fifty rounds between us.

121:24 Q. Okay. Spread about fifty/fifty,

121:25 you would estimate?

122:01 A. Yeah.

123:02 - 124:16 Dimoff, Brian (2020-10-03) 2:01

123:02 Q. Do you know who Brian Draton is? Re: [123:02 to 124:16] SUSTAINED

123:03 A. Yeah. I think I talk to him Pltf Obj MIL 34; 402; 403;

123:04 about once a month. 404; 405; 608

123:05 Q. Okay. And can you just tell me

123:06 who Brian Draton is, as far as you know?

Page 23 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 42 of 107
123:07 A. He was the other guy that was in

123:08 the room with us. He was also on our shift.

123:09 Me and Draton spent a lot of time working

123:10 together, actually. I spent more time working

123:11 with him on duty than I did Baker.

123:12 We all got along. Draton, prior

123:13 service marine. And actually, if you ever saw

123:14 or heard of Generation Kill, that was about his

123:15 unit. Really good guy. We still talk.

123:16 For a while, we were actually

123:17 planning on going in to business together, all

123:18 three of us. Draton already had a business in

123:19 Texas where he was running a weapons training

123:20 facility, and he had taken a pause on that to

123:21 earn some money, go contracting.

123:22 We talked about working together

123:23 and potentially, at the time, I still had a lot

123:24 of friends in North and South Carolina, and

123:25 Baker was thinking about going back to South

124:01 Carolina where him and his wife are from. Me

124:02 and him had discussed opening a branch of

124:03 Draton's business in South Carolina.

124:04 And then when Draton had to start

124:05 fighting for his daughter, he basically sold

124:06 his interest in the company and used all of his

124:07 resources to maintain custody of his daughter.

124:08 And all the business plans just kind of petered

124:09 out.

124:10 Q. Okay. And so -- But these were

124:11 all -- Were these all business plans relating

124:12 to one business; do I have that correct?

124:13 A. No. The stuff involving Draton

124:14 was something called Phalanx Defense. I

124:15 designed a T-shirt for him, I think that was

124:16 about it.

124:21 - 125:10 Dimoff, Brian (2020-10-03) 1:46

124:21 Q. And did Phalanx Defense ever get Re: [124:21 to 125:10] OVERRULED

124:22 off the ground? Did it ever actually become a Pltf Obj MIL 34; 402; 403;

124:23 business or was it just an idea? 404; 405; 608

124:24 A. No. It was just an idea. We

124:25 were -- we were hoping to start that. And what

125:01 we're doing here is a much more reduced version

Page 24 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 43 of 107
125:02 of what we wanted to do originally. But Draton

125:03 now owns a, like, home remodeling and

125:04 refinishing business. He's kind of out of the

125:05 gun industry and doesn't have an interest in it

125:06 anymore. So . . .

125:07 Q. Are you aware of Mr. Baker ever

125:08 acting as a firearms instructor for Phalanx

125:09 Defense between June 2011 and February 2012?

125:10 A. As what? No.

125:11 - 126:04 Dimoff, Brian (2020-10-03) 1:53

125:11 Q. Okay. What about beyond that

125:12 time frame, are you aware of him being a

125:13 firearms instructor?

125:14 A. No. No. We started working on

125:15 some curriculum together, hoping that this

125:16 business was going to go somewhere. So we --

125:17 Me and him came up with some classes, with some

125:18 training curriculum. I think we typed up a

125:19 couple of resumes to see what it would end up

125:20 looking like. We designed some logos, made

125:21 some T-shirts; we talked to some companies

125:22 about training equipment; and then it all just

125:23 kind of petered out.

125:24 Q. Okay. So if you'll open to tab

125:25 5, 5-A. Let me know when you get it.

126:01 A. Tab 5-A. Okay.

126:02 (Whereupon, Exhibit 64 was

126:03 marked for identification

126:04 purposes.)

126:05 - 126:12 Dimoff, Brian (2020-10-03) 0:28

126:05 Q. All right. So you mentioned you Re: [126:05 to 126:12] OVERRULED

126:06 wrote up some resumes. We will mark Exhibit Pltf Obj MIL 34; 402; 403;

126:07 5-A for the Record as Exhibit 64. 404; 405; 608

126:08 Before I ask that, I guess, sir,

126:09 is this a true and correct copy of an email

126:10 from Mr. Baker, sent to you, July 11, 2013,

126:11 11:42 a.m., along with an attachment thereto?

126:12 A. Yes.

127:12 - 127:25 Dimoff, Brian (2020-10-03) 1:35

127:12 Q. So what is your understanding of Re: [127:12 to 127:25] OVERRULED

Page 25 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 44 of 107
127:13 why Mr. Baker was sending you this resume? Was Pltf Obj MIL 34; 402; 403;

127:14 it so that you could forward it to the other 404; 405; 608

127:15 contractor agency?

127:16 A. No. That was so I could overview

127:17 it and basically compare it against any

127:18 contracting jobs that I saw. You can't

127:19 actually send a resume for somebody else in

127:20 that kind of career field. But what you can do

127:21 is look for keywords. So I was kind of

127:22 proofreading it for him.

127:23 Q. Okay. You were reviewing it for

127:24 him; is that it, in essence?

127:25 A. Yes.

128:18 - 128:23 Dimoff, Brian (2020-10-03) 0:17

128:18 Q. Okay. Do you know if -- Well, Re: [128:18 to 128:23] OVERRULED

128:19 and you'll see in the resume on page 225, Pltf Obj MIL 34; 402; 403;

128:20 there's a section about Phalanx Defense. 404; 405; 608

128:21 Just take a minute to look at

128:22 that and let me know when you have.

128:23 A. (Witness complies.) Yes.

128:24 - 129:08 Dimoff, Brian (2020-10-03) 1:36

128:24 Q. Are you aware of this resume Re: [128:24 to 129:08] OVERRULED

128:25 being sent out to anybody with the Phalanx Def Obj 602

129:01 Defense references that are contained in this

129:02 draft?

129:03 A. No, I am not. I did -- I did the

129:04 same thing on one of my resumes, because we

129:05 were all trying to do that. I mean, we all had

129:06 some working drafts, and we had some working

129:07 drafts of business cards and other things like

129:08 that. But none of it was ever official.

129:09 - 129:22 Dimoff, Brian (2020-10-03) 0:28

129:09 Q. Okay. When you say none of it Re: [129:09 to 129:22] OVERRULED

129:10 was ever official, this is forward-looking, Pltf Obj MIL 34; 402; 403;

129:11 meaning, you know, Mr. Baker wasn't actually a 404; 405; 608

129:12 firearms instructor during this time period, he

129:13 was just saying that he could be doing that

129:14 work going forward; is that right?

129:15 A. Yes.

129:16 Q. Okay. But you see on page 225,

Page 26 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 45 of 107
129:17 the time period predates the email, do you see

129:18 that?

129:19 A. Yes.

129:20 Q. Do you have any understanding why

129:21 that would be the case?

129:22 A. Honestly, no.

129:23 - 130:03 Dimoff, Brian (2020-10-03) 0:13

129:23 Q. Okay. But that is -- It's not

129:24 accurate that he was a firearms instructor at

129:25 Phalanx Defense between June 2011 and February

130:01 2012; fair?

130:02 A. No. It was just a writing and

130:03 resume-building exercise.

131:07 - 131:09 Dimoff, Brian (2020-10-03) 0:08

131:07 Q. Okay. And if you look at -- If Re: [131:07 to 132:02] OVERRULED

131:08 you look on page 224, please. Pltf Obj MIL 34; 402; 403;

131:09 A. Okay. 404; 405; 608

131:11 - 132:02 Dimoff, Brian (2020-10-03) 1:36

131:11 let's just go take it step by step. Re: [131:07 to 132:02] OVERRULED

131:12 So the third paragraph here Pltf Obj MIL 34; 402; 403;

131:13 refers to, again, Phalanx Defense, do you see 404; 405; 608

131:14 that?

131:15 A. Yes.

131:16 Q. And again with respect to this

131:17 paragraph, it's not -- It's not accurate that

131:18 Mr. Baker was in charge of South Carolina

131:19 instructional operations of Phalanx Defense;

131:20 true?

131:21 A. No. It was a resume-building

131:22 exercise.

131:23 Q. Okay. And it's also not accurate

131:24 that as a firearms instructor, he was

131:25 responsible for the various things that are

132:01 listed here on page 224 of Exhibit 64; right?

132:02 A. No.

132:03 - 132:14 Dimoff, Brian (2020-10-03) 1:40

132:03 Q. Okay. I'm correct; right? Re: [132:03 to 132:14] OVERRULED

132:04 A. I'm just going to head this off, Def Obj 106

132:05 because I can -- I -- Look, I can kind of see

Page 27 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 46 of 107
132:06 where you're trying to go at with this. And

132:07 I'll just put this on the Record. It was a

132:08 resume-building exercise that both of us did to

132:09 see what it would look like if we had created

132:10 this business and gone forward with it. As to

132:11 why the dates are the way they are, I don't

132:12 know. It was never supposed to go out to

132:13 anybody, and nobody else was supposed to see it

132:14 other than me and Baker and Draton.

135:19 - 135:24 Dimoff, Brian (2020-10-03) 0:13

135:19 Q. Okay. To your knowledge, and as Re: [135:19 to 135:24] OVERRULED

135:20 far as you know, and you may not know, do you Pltf Obj MIL 34; 402; 403;

135:21 know whether Mr. Baker has ever sent a resume 404; 405; 608; 602

135:22 to an employer or prospective employer with a

135:23 discussion of Phalanx in it?

135:24 A. I don't think so.

136:03 - 136:08 Dimoff, Brian (2020-10-03) 0:26

136:03 My only question will be: Is the

136:04 discussion here as it relates to Mr. Baker's

136:05 duties at Triple Canopy, accurate? Is that a

136:06 fair summary of what he did at Triple Canopy,

136:07 to your knowledge?

136:08 A. (Witness complies.) Yes.

136:20 - 136:24 Dimoff, Brian (2020-10-03) 0:09

136:20 Q. Do you see under key skills and Re: [136:20 to 136:24] OVERRULED

136:21 qualifications, Mr. Baker lists that he's Pltf Obj MIL 34; 402; 403;

136:22 either an expert or qualified in a number of 404; 405; 608

136:23 different firearms?

136:24 A. Uh-huh.

137:04 - 137:13 Dimoff, Brian (2020-10-03) 0:27

137:04 Q. Okay. And, again, you have no Re: [137:04 to 137:13] OVERRULED

137:05 reason to doubt the voracity or the Pltf Obj MIL 34; 402; 403;

137:06 truthfulness of this information, as far as you 404; 405; 608

137:07 know he is an expert and qualified in each of

137:08 these firearms?

137:09 A. I was next to him when he

137:10 qualified expert on the M4, the M9. I thought

137:11 he qualified expert on the 240, but he was on

137:12 the gun team to the left of me. As far as I

Page 28 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 47 of 107
137:13 know, yes, absolutely.

146:11 - 146:21 Dimoff, Brian (2020-10-03) 0:23

146:11 Q. Mr. Dimoff, can you hear me? Re: [146:11 to 146:21] SUSTAINED

146:12 A. Yes, I can. Def Obj 401, 403

146:13 Q. Did you understand all the

146:14 questions that you were asked today by Mr.

146:15 Bhimani?

146:16 A. I believe so.

146:17 Q. Did you tell the truth today?

146:18 A. I did.

146:19 Q. Did you give any untruthful

146:20 testimony today to benefit Mr. Baker?

146:21 A. No.

147:07 - 147:12 Dimoff, Brian (2020-10-03) 0:13

147:07 Q. Did I ever ask you to give Re: [147:07 to 147:12] SUSTAINED

147:08 favorable testimony or ask you to testify in Def Obj 401, 403

147:09 any manner to help Mr. Baker's case?

147:10 A. No, you did not.

147:11 MR. FOX: That's all the

147:12 questions I have.

Page 29 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 48 of 107
Preserved Objections Previous Rulings New Objections Rulings

6:13 - 6:22 MacWilliams, Andrew (2020-09-24) 0:25

6:13 Q. Good morning, Mr. MacWilliams. My

6:14 name is Kimberly Branscome, and I represent the

6:15 Defendants 3M Company and a few Aearo entities

6:16 in this lawsuit. If we could just start out by

6:17 having you state your full name for the record,

6:18 please.

6:19 A. Sure my name is Andrew

6:20 MacWilliams.

6:21 Q. And who is your current employer?

6:22 A. I work for Constellis.

7:02 - 7:22 MacWilliams, Andrew (2020-09-24) 1:44

7:02 Q. Now, before today you and I have

7:03 never met. Correct?

7:04 A. Correct.

7:05 Q. And other than the notice of

7:06 deposition that my firm sent to your company,

7:07 we have never spoken with each other before

7:08 today. Correct?

7:09 A. Correct.

7:10 Q. All right. Now, can you describe

7:11 for me the relationship between Constellis and

7:12 the company Triple Canopy?

7:13 A. Sure. Triple Canopy is a wholly

7:14 owned subsidiary of Constellis.

7:15 Q. Is it your understanding that

7:16 today you are testifying on behalf of

7:17 Triple Canopy?

7:18 A. Yes.

7:19 Q. And you are -- and you are

7:20 testifying as if you are Triple Canopy.

7:21 Correct?

7:22 A. Correct.

8:20 - 9:02 MacWilliams, Andrew (2020-09-24) 0:20

8:20 Q. Now, you are aware that the

8:21 Plaintiff in this case, Lloyd Baker, was a

8:22 contractor with Triple Canopy from 2012 to

8:23 2014. Correct?

8:24 A. Yes.

8:25 Q. Mr. Baker also sought employment

Designations

Page 1 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 49 of 107
9:01 from Triple Canopy in 2020. Is that correct?

9:02 A. Yes.

9:08 - 9:13 MacWilliams, Andrew (2020-09-24) 0:19

9:08 Q. Have you ever communicated in any

9:09 form with Lloyd Baker?

9:10 A. No.

9:11 Q. Have you ever communicated in any

9:12 form with Lloyd Baker's attorney?

9:13 A. No.

15:08 - 15:13 MacWilliams, Andrew (2020-09-24) 0:25

15:08 Q. What is Triple Canopy?

15:09 A. Triple Canopy is -- what is

15:10 Triple Canopy? It's a security company at its

15:11 core operating primarily outside the

15:12 United States. But they do have a domestic

15:13 footprint as well.

16:02 - 16:20 MacWilliams, Andrew (2020-09-24) 1:00

16:02 Q. As a part of your job, are you

16:03 familiar with the job requirements for

16:04 individuals who are employed by Triple Canopy?

16:05 A. Yes.

16:06 Q. Okay. And are you familiar with

16:07 the hiring practices and procedures involved

16:08 with people seeking employment with

16:09 Triple Canopy?

16:10 A. Intimately.

16:11 Q. You also have familiarity with the

16:12 job requirements. And in this sense I mean

16:13 like what is entailed when someone is actually

16:14 employed by Triple Canopy?

16:15 A. Yes.

16:16 Q. To whom does Triple Canopy offer

16:17 security services?

16:18 A. The Department of Defense.

16:19 U.S. Department of Defense and U.S. Department

16:20 of State are the two largest clients.

16:21 - 17:03 MacWilliams, Andrew (2020-09-24) 0:19

16:21 Q. And I believe you mentioned, are

16:22 they primarily providing private security

Page 2 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 50 of 107
16:23 services overseas?

16:24 A. Yeah. Yes. Primarily overseas.

16:25 And that's also my purview too. So there is a

17:01 domestic footprint. But I don't --

17:02 Triple Canopy's domestic footprint is small,

17:03 and I'm not working on that.

17:07 - 17:13 MacWilliams, Andrew (2020-09-24) 0:16

17:07 Q. And we will mark this document as

17:08 Baker Exhibit 47. As you can see, there's a

17:09 cover page on this that refers to a custodian,

17:10 Triple Canopy, Inc. Do you see that?

17:11 (Defendant's Exhibit Number 47

17:12 is marked for identification.)

17:13 A. I do.

18:03 - 19:07 MacWilliams, Andrew (2020-09-24) 2:30

18:03 Q. Okay. All right. Do you see here

18:04 that under the certification of custodian of

18:05 record, this is describing the attached records

18:06 were made at or near the time the act of this

18:07 condition, opinion, or diagnosis by a person

18:08 with knowledge of the matters reflected in the

18:09 records. Do you see that?

18:10 A. Yes.

18:11 Q. And two, were kept in the course

18:12 of regularly conducted activities. Correct?

18:13 A. Yes.

18:14 Q. Three, were created as part of the

18:15 regular practice of the provider. Do you see

18:16 that?

18:17 A. Yes.

18:18 Q. And four, are the complete and

18:19 unabridged copies of records maintained by this

18:20 facility with regards to the above named

18:21 Plaintiff. Do you see that?

18:22 A. Yes.

18:23 Q. And if you look just above that

18:24 box, do you see that it refers specifically to

18:25 Lloyd Baker?

19:01 A. I do.

19:02 Q. All right. And if I could ask

19:03 you, it is a large set of documents, but if you

Page 3 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 51 of 107
19:04 could flip through Baker Exhibit 47 and confirm

19:05 that this is, in fact, employment records for

19:06 Lloyd Baker.

19:07 A. That's correct.

20:04 - 20:11 MacWilliams, Andrew (2020-09-24) 0:23

20:04 Q. And we will mark this set of

20:05 documents as Baker Exhibit 48. And do you see

20:06 that there is, in fact, a letter on the first

20:07 page of this set of documents from

20:08 Ms. McKenzie-Veal on Constellis letterhead?

20:09 (Defendant's Exhibit Number 48

20:10 is marked for identification.)

20:11 A. I do.

20:24 - 21:16 MacWilliams, Andrew (2020-09-24) 1:50

20:24 Q. All right. And are these -- if

20:25 you flip behind that, there are a number of

21:01 documents. Are you familiar with the documents

21:02 that are enclosed with the letter, all of which

21:03 have been marked as Exhibit 48?

21:04 A. I am familiar with them, yes.

21:05 Q. Are these documents that are a

21:06 part of Mr. Baker's personnel file with

21:07 Triple Canopy?

21:08 A. Yes.

21:09 Q. Are these documents that were kept

21:10 by Triple Canopy in the ordinary course of

21:11 business?

21:12 A. Yes.

21:13 Q. And would these records have been

21:14 created and maintained at the time at which the

21:15 events took place?

21:16 A. Yes.

21:21 - 21:24 MacWilliams, Andrew (2020-09-24) 0:13

21:21 Q. And we will mark tab five as Baker

21:22 Exhibit 49. Do you see the first page of

21:23 Exhibit 49 is an e-mail correspondence from

21:24 Ms. McKenzie-Veal? Do you see that?

22:02 - 22:02 MacWilliams, Andrew (2020-09-24) 0:01

22:02 A. I do.

Page 4 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 52 of 107
23:02 - 23:22 MacWilliams, Andrew (2020-09-24) 1:49

23:02 Q. And are these documents also

23:03 documents that are maintained in the ordinary

23:04 course of business by Triple Canopy?

23:05 A. Yes.

23:06 Q. And are these documents that would

23:07 have been created or maintained close in time

23:08 to when the events took place?

23:09 A. Yes.

23:10 Q. And I should have asked this

23:11 actually about each one. We're looking now at

23:12 Exhibit 49. Do these documents appear to be

23:13 authentic copies of Mr. Baker's personnel file?

23:14 A. As far as I can tell, yes.

23:15 Q. All right. And then I'll do that

23:16 for the same, if you'll turn back to

23:17 Exhibit 48, which was behind tab four.

23:18 A. These all appear to be authentic.

23:19 Q. Okay. And we'll do the same

23:20 behind tab three, please.

23:21 A. These all appear to be authentic

23:22 as well.

30:03 - 30:13 MacWilliams, Andrew (2020-09-24) 0:29

30:03 Q. When someone is hired on for a

30:04 job, is there a specified time for which they

30:05 are deployed?

30:06 A. Yeah. Our -- most of your

30:07 statements of work run for twelve months. In

30:08 some instances we may issue one that's shorter,

30:09 but typically your statement of work is going

30:10 to run for twelve months, assuming that the

30:11 contract that you are headed to has twelve

30:12 months left on it. But typically we're running

30:13 twelve month statements.

30:21 - 31:17 MacWilliams, Andrew (2020-09-24) 1:10

30:21 Q. You mentioned that there are job

30:22 requirements that an individual has to satisfy.

30:23 Can you describe for me in general terms what

30:24 those job requirements are?

30:25 A. Yes. So a standard -- excuse

Page 5 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 53 of 107
31:01 me -- DoD effort is probably something like,

31:02 you know, 21 or 23 years of age. Must be a

31:03 U.S. citizen. Must have or be able to obtain a

31:04 U.S. secret clearance. Two years of military

31:05 service, military or law enforcement service,

31:06 an honorable discharge. And then depending on

31:07 the role, there may be a rank requirement so

31:08 separating, you know, E4, E5, E6, and E7 from

31:09 the military.

31:10 Some of the State Department work has

31:11 requirements like military time in a high

31:12 threat environment. And so it just kind of

31:13 depends on what you're applying for. But

31:14 generally for us it's age, citizenship, it's

31:15 clearance, and some type of military, police,

31:16 or contractor background to get on to one of

31:17 our efforts.

33:14 - 34:15 MacWilliams, Andrew (2020-09-24) 1:15

33:14 Q. Okay. So you mentioned that once

33:15 someone gets through the background check and

33:16 the drug screen. What is the next step in the

33:17 process?

33:18 A. For a DoD -- for either rather,

33:19 excuse me, we would schedule for -- we would

33:20 confirm your clearance. So let's assume for a

33:21 second that you're already cleared and that,

33:22 you know, you are ready to go. We will get

33:23 your visa started. Depending on the country

33:24 that you plan on working in, we'll submit on

33:25 your behalf for the appropriate visa. And

34:01 we'll pick a date and time. Every country is a

34:02 little bit different. But once your visa is

34:03 sort of assured to be coming out, we'll

34:04 schedule you for training.

34:05 Our training facility in North Carolina has

34:06 our medical providers actually onsite with us.

34:07 So the first thing you'll do upon arrival is go

34:08 for your medical screening at the provider

34:09 that's onsite. And then assuming that you pass

34:10 that, typically the physical fitness test,

34:11 physical readiness test will be next. If you

34:12 pass that then you'll be enrolled in the

Page 6 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 54 of 107
34:13 training course. And the training courses run

34:14 between five and fifty days, give or take. It

34:15 depends.

34:25 - 35:10 MacWilliams, Andrew (2020-09-24) 1:31

34:25 Q. Well, you can -- let me just ask

35:01 you. When you took on the role, did you

35:02 familiarize yourself with sort of what had been

35:03 going on at the Company prior to you starting

35:04 your employment?

35:05 A. Yes. So prior to me arriving at

35:06 Constellis and Triple Canopy, they were

35:07 training at a facility down in Louisiana. And

35:08 a typical pre-deployment training course back

35:09 then was seven to ten days, if I'm not

35:10 mistaken.

35:21 - 37:20 MacWilliams, Andrew (2020-09-24) 2:25

35:21 Q. Well, let me ask you this.

35:22 Mr. Baker's contract in 2012 to 2014, was that

35:23 a DoD or a Department of State contract?

35:24 A. That was DoD.

35:25 Q. All right. So what I'm trying to

36:01 understand is what kind of training Mr. Baker

36:02 would have gone through in 2012 on a DOD

36:03 contract.

36:04 A. Understood. So it's a blend of,

36:05 you know, classroom work where they talk about

36:06 all sorts of things. Defense tactics, rules of

36:07 engagement, cultural awareness, things like

36:08 that that can be covered in a classroom that

36:09 are specific or almost specific to the location

36:10 which they're headed. They'll also do firearms

36:11 training, some tactical medical training, and

36:12 some training outside of the classroom.

36:13 Q. Okay. So I'd like to focus for a

36:14 minute on the firearms training.

36:15 A. Sure.

36:16 Q. What was involved in a firearms

36:17 training for a DoD contract?

36:18 A. Typically firearms training would

36:19 include just a rifle and pistol familiarization

36:20 and qualification.

Page 7 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 55 of 107
36:21 Q. Do you have an understanding of

36:22 how often individuals in the training program

36:23 would be firing weapons as part of their

36:24 training?

36:25 A. Yeah. I mean, typically you'll --

37:01 you'll go to the range to familiarize yourself

37:02 with the qual. You know, and you have three

37:03 opportunities to make the qualification.

37:04 The -- the DoD qualifications are not

37:05 particularly challenging, so it can easily be

37:06 accomplished in a single day.

37:07 Q. Is it an indoor or an outdoor

37:08 firing range?

37:09 A. In 2012 it was definitely an

37:10 outdoor range. And the majority of our ranges

37:11 now are outdoor as well.

37:12 Q. Do you know specifically what

37:13 firearms are used for that training

37:14 qualification?

37:15 A. Nowadays we qualify on any nine

37:16 millimeter pistol. Sometimes the contractor

37:17 will stipulate exactly the type, the make and

37:18 model that they want to use. But it's always

37:19 some -- some type of nine millimeter and an M4

37:20 as well. The rifle is an M4.

37:21 - 38:16 MacWilliams, Andrew (2020-09-24) 1:54

37:21 Q. Were hearing protection devices

37:22 provided to individuals who were undergoing

37:23 either firearms training or qualification?

37:24 A. Again, I wasn't on in 2012. But

37:25 all of the firearms training that I have either

38:01 witnessed or participated in, in my tenure, ear

38:02 protection and eye protection is always

38:03 provided.

38:04 Q. What type of hearing protection,

38:05 if you know?

38:06 A. It depends on where you are and

38:07 what's going on. Sometimes it's, you know, the

38:08 foam earplugs that you insert -- put inside of

38:09 you ear. Other times it's more of a headset

38:10 style that sits over the top of your head and

38:11 sort of sits over the top of your ears.

Page 8 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 56 of 107
38:12 Sometimes it can be both too.

38:13 Q. And are individuals required to

38:14 wear eye protection when they're in the firing

38:15 range?

38:16 A. Yes.

39:02 - 41:07 MacWilliams, Andrew (2020-09-24) 3:55

39:02 Q. Okay. So now let's shift forward

39:03 to 2020 and Department of State training.

39:04 A. Okay.

39:05 Q. Can you describe that for me?

39:06 A. Yep. Sure. Department of State

39:07 training is more intense than DoD training,

39:08 especially because our Department of State

39:09 contracts are all mobile and the profile just

39:10 tends to be a little bit different. And so the

39:11 training is a lot more classroom training.

39:12 Again, the standard -- the basic course for

39:13 State Department is 42 days long. And -- and

39:14 that's a lot of classroom training where they

39:15 talk about other skills that are needed when

39:16 you work on a mobile contract. You know, for

39:17 lack of a better term, pickup and drop-off

39:18 procedures. There are security postures that

39:19 you're required to maintain when you're out

39:20 with what's -- what we refer to as principle.

39:21 So if you're on mobile contract, the idea is

39:22 that the actor is getting into your car or

39:23 general or somebody like that is getting into

39:24 your car, that person is referred to as a

39:25 principal. And there are things you do with

40:01 your principal when you're out and about

40:02 outside of the facility. They cover topics

40:03 like surveying to make sure the location you're

40:04 pulling up to is safe and what you do when you

40:05 get there and emergency procedures if you have

40:06 to get out, but also covering some of the same

40:07 modules that the DoD training will too like

40:08 standard communication, radio communications,

40:09 tactical med, those sorts of things.

40:10 And then the firearms are the

40:11 State Department are quite different. It's a

40:12 pistol qual, a rifle -- multiple rifle quals,

Page 9 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 57 of 107
40:13 shotgun familiarization. Why am I blanking on

40:14 the term? Machine gun training, M240, M249.

40:15 And then a qualification on a grenade launcher

40:16 that's referred to as an M203.

40:17 Q. Can you give me a sense of how --

40:18 how often someone who's going through the --

40:19 well, let's just focus on Mr. Baker and what he

40:20 was training for. So how often would he have

40:21 been firing weapons as part of his 2020

40:22 Department of State training and qualification?

40:23 A. Because we see a lot of attrition

40:24 out of the training programs in the firearms

40:25 space, we do all of that in the first two

41:01 weeks. And I would expect within that first

41:02 two weeks, he would be firing something every

41:03 single day.

41:04 Q. Is there any training provided on

41:05 the use of hearing protection devices?

41:06 A. I'm not aware either way. I'm not

41:07 aware, yes or no.

41:24 - 42:10 MacWilliams, Andrew (2020-09-24) 0:24

41:24 Q. All right. So now I'd like to

41:25 focus specifically on Mr. Baker.

42:01 A. Sure.

42:02 Q. He applied and was eventually

42:03 hired for a contract that ran from March 2012

42:04 to July 2014. Is that correct?

42:05 A. That's my understanding, yeah.

42:06 Right.

42:07 Q. All right. And it's referred to

42:08 in some of the documents as the Leatherneck

42:09 contract. Is that correct?

42:10 A. Camp Leatherneck. Yeah. Yes.

42:11 - 42:14 MacWilliams, Andrew (2020-09-24) 0:14

42:11 Q. Was that a mobile or static

42:12 position?

42:13 A. I believe that was a static

42:14 position.

43:15 - 44:06 MacWilliams, Andrew (2020-09-24) 1:43

43:15 Q. Okay. I was going to ask you Re: [43:15 to 44:06] OVERRULED

Page 10 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 58 of 107
43:16 that. So how frequently are individuals Pltf Obj 401, 402, 403

43:17 employed by Triple Canopy -- and I'm focusing

43:18 on the 2012 to 2014 timeframe. How often are

43:19 those individuals given medical exams?

43:20 A. Every twelve months is the

43:21 standard procedure. If there's something going

43:22 on where that's not possible -- a great example

43:23 is what's happening with Covid right now. So

43:24 for personnel that are currently on a project,

43:25 getting them to a medical facility is not

44:01 really feasible, so DoD can grant a waiver.

44:02 Typically they don't like it to go more than

44:03 fifteen months. That's about as long as I've

44:04 seen it go before. So between twelve and

44:05 fifteen months for a medical renewal would be

44:06 very standard.

45:08 - 46:06 MacWilliams, Andrew (2020-09-24) 1:05

45:08 Q. Would an audiogram or other type Re: [45:20 to 46:06] OVERRULED

45:09 of hearing test have been conducted as part of Pltf Obj 602, 402, 403

45:10 a medical renewal?

45:11 A. Not necessarily. So medical --

45:12 I'm sorry. Excuse me. Hearing tests for both

45:13 DoD and for DoS, they run something called a

45:14 whisper test which is exactly what you think it

45:15 is. The doctor stands behind you and whispers

45:16 something. If you can not repeat it, then

45:17 they'll schedule you for a follow-up. And so

45:18 if a follow-up was required, then I would

45:19 expect that to be here.

45:20 Q. So if there is not a follow-up in

45:21 the file, would that suggest that Mr. Baker

45:22 passed the whisper test as part of his medical

45:23 renewal?

45:24 A. Yes.

45:25 Q. And can you just --

46:01 A. Yeah, I'm sorry. A doctor would

46:02 also not sign off his fit for duty unless all

46:03 of the screenings had been, you know,

46:04 successfully completed. And I did see a fit

46:05 for duty -- I did previously see a fit for duty

46:06 signature in there.

Page 11 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 59 of 107
47:05 - 47:14 MacWilliams, Andrew (2020-09-24) 1:37

47:05 Q. It does. Can you just describe Re: [47:05 to 47:14] SUSTAINED

47:06 for me an in a little bit more detail the Pltf Obj 602; 403; speculation

47:07 whisper test?

47:08 A. I mean, I think the doctor stands

47:09 behind you and whispers something that you are

47:10 required to repeat. And we've done -- you

47:11 know, our medical provider down at our training

47:12 facility does, you know, thousands a year. So

47:13 I'm sure he is very -- he knows exactly what

47:14 he's doing on that front.

47:18 - 48:18 MacWilliams, Andrew (2020-09-24) 2:41

47:18 Q. For the Department of State -- so Re: [47:18 to 48:18] OVERRULED

47:19 now I want to focus specifically on Mr. Baker's Pltf Obj 602

47:20 application for a Department of State position.

47:21 What type of medical exams would he have

47:22 undergone and what standards would he have had

47:23 to have met in 2020?

47:24 A. They would be similar but not

47:25 exactly the same. And I do not -- so let's

48:01 see. I have the State Department medical

48:02 setting requirements here. Let me pull them up

48:03 and I can maybe read them off. So I'm

48:04 looking -- what I'm looking at here is a matrix

48:05 that our delivery team has created out of the

48:06 requirements in IDIQ. And so I'm looking at

48:07 immunizations. I'm looking at drug labs.

48:08 Other exams are an EKG, a stress test, and a

48:09 sickle-cell test. I don't see a requirement

48:10 here for hearing. That does not mean there is

48:11 not one, but I'm not seeing it here.

48:12 Oh, excuse me. I'm sorry. It was at the

48:13 top. Physical exam, it's a -- it references a

48:14 State Department document, a DS, delta sierra,

48:15 6561 which includes both a hearing and a vision

48:16 test as a requirement. And there's a note here

48:17 that says that it's required to be renewed

48:18 annually.

49:18 - 50:08 MacWilliams, Andrew (2020-09-24) 1:43

49:18 Q. (Ms. Branscome) Earlier I was

49:19 asking you some questions about the firearms

Page 12 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 60 of 107
49:20 training that occurs for both a DoD and a

49:21 Department of State contracts. And you

49:22 mentioned that those were outdoor firing

49:23 ranges. Do you remember that?

49:24 A. Yes.

49:25 Q. Roughly how many individuals are

50:01 firing weapons at a given time on those ranges?

50:02 A. A standard range has got ten or

50:03 twelve lanes. So I would expect ten or twelve

50:04 at a time. It depends on the qual too. More

50:05 complicated quals that require movement, you

50:06 typically will run fewer at a time. But ten to

50:07 twelve is a safe assumption for the majority of

50:08 the quals.

51:05 - 52:04 MacWilliams, Andrew (2020-09-24) 1:12

51:05 Q. And when you say there's fifty

51:06 different ranges, are there different ranges

51:07 for different weapons on which someone is, you

51:08 know, either training or qualifying?

51:09 A. Yes. The machine guns in

51:10 particular have a specific range because

51:11 they're -- they're roped in. They're fixed

51:12 into a position. So yes, different ranges are

51:13 different sizes. We also -- because we conduct

51:14 so much firearms training, there are multiple

51:15 rifle and multiple pistol ranges. They're all

51:16 kind of the same but a little different. Some

51:17 are covered. Some are not covered. There are

51:18 also what we refer to as shoot houses which are

51:19 mockups of a building which are open air --

51:20 covered but open air. They're not inside

51:21 specifically. But those exist as well.

51:22 Q. Would training for a moving

51:23 position for the Department of State involve

51:24 training in one of those shooting houses?

51:25 A. Yes.

52:01 Q. And what type of weapons are

52:02 typically fired in the shooting houses?

52:03 A. The M4 or the pistol. Typically

52:04 the rifle, the M4.

53:12 - 55:02 MacWilliams, Andrew (2020-09-24) 2:11

Page 13 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 61 of 107
53:12 Q. What is your understanding of why

53:13 there is a hearing test component to qualifying

53:14 for either DoD or Department of State

53:15 contracts?

53:16 A. I mean, quite simply so that

53:17 people can, you know, receive and apply

53:18 direction, you know. You know, in the -- in

53:19 the worst scenarios, you're talking about which

53:20 direction incoming fire might be coming from,

53:21 where you might have to return fire to.

53:22 Hearing things like cease fire, stop shooting

53:23 would be, you know, kind of an important thing

53:24 to have. But more to that, I mean, when you

53:25 are on a mobile contract in particular, there's

54:01 a lot of interfacing with locals. There's a

54:02 lot of interfacing with the principals that

54:03 you're -- you're working with. And so being

54:04 able to hear them and understand and

54:05 communicate is imperative on both mobile and

54:06 static contracts.

54:07 Q. Would Triple Canopy ever qualify

54:08 someone for a DoD or Department of State

54:09 contract if they had concerns about that

54:10 individual's ability to hear?

54:11 A. No. However, we do see on

54:12 occasion that people are able to mitigate

54:13 issues they may have in terms of health or

54:14 physical fitness. And so it's possible.

54:15 Again, I'm not -- Andy, take a big breath here.

54:16 I'm not a health expert. But there are waivers

54:17 and ways to mitigate a variety of -- of things

54:18 that could pop up on your medical screening.

54:19 Q. If mitigation was necessary to

54:20 compensate, for example, for hearing

54:21 difficulties, would that mitigation be noted in

54:22 that individual's file?

54:23 A. I would expect it would be, yes.

54:24 Q. To the best of your understanding,

54:25 were any mitigations or special accommodations

55:01 ever necessary for Lloyd Baker?

55:02 A. I'm not aware of any, no.

55:03 - 55:12 MacWilliams, Andrew (2020-09-24) 1:39

Page 14 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 62 of 107
55:03 Q. All right. So turning

55:04 specifically to Mr. Baker's employment in 2012,

55:05 can you give a description of what Mr. Baker's

55:06 job responsibilities were under that contract?

55:07 A. Camp Leatherneck was a very

55:08 standard DoD effort which was primarily static

55:09 security. So going back to the description I

55:10 provided earlier, entry control work, tower

55:11 work primarily. Those were the two sort of

55:12 main roles.

55:18 - 58:23 MacWilliams, Andrew (2020-09-24) 4:52

55:18 Q. Static. Okay. All right. So can

55:19 you just describe for me in more layman's terms

55:20 what Mr. Baker's job responsibilities were

55:21 under the Camp Leatherneck contract?

55:22 A. So again, in sort of two buckets,

55:23 entry -- entry control work and tower work are

55:24 typically the two that typify static security.

55:25 And entry control work is, again, you're at

56:01 a -- an entry point into the DoD facility.

56:02 That's either for personnel who are coming in

56:03 or for vehicles who are coming in or both. And

56:04 you and the team that are there at the entry

56:05 control point are checking badges, checking

56:06 authorizations, confirming identities. You're

56:07 often searching individuals and vehicles that

56:08 are coming in for contraband, for explosives,

56:09 for things like that. You're making sure in a

56:10 lot of ways that it's -- that it's orderly.

56:11 Facilities like this, there's a tempo to how

56:12 people enter, so you want to make sure the

56:13 vehicles are spaced accordingly and nobody is

56:14 coming through the -- typically there will be

56:15 multiple points at an ECP where vehicles are

56:16 checked. So you want to make sure they're

56:17 spaced accordingly, the drivers are behaving

56:18 commands, they've got paperwork necessary to

56:19 enter the facility.

56:20 Typically there's a gate that's electronic

56:21 or sometimes it's actually manual that you will

56:22 lift up and down or trigger to go up and down,

56:23 hit a button to make it go up and down. That's

Page 15 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 63 of 107
56:24 typically what ECP work is like. Tower work is

56:25 very straightforward. You're in an elevated

57:01 fixed position, and you are scanning a portion

57:02 of or an area that is at the wall or beyond the

57:03 facility's wall. Again, making sure that

57:04 there's no unauthorized approaches or there's

57:05 nothing suspicious.

57:06 And then, you know, communicating with the

57:07 other groups, communicating with the ECP,

57:08 communicating -- ECP being the entry control

57:09 point, communicating what is called the TOC.

57:10 That's T-O-C. It stands for tactical

57:11 operational center. Different facilities call

57:12 them different things. Sometimes it's called a

57:13 BDOC, a base defense operations center. And so

57:14 then the communication of all of those things,

57:15 the information, it's integral to the overall

57:16 security plan for an installation.

57:17 Q. So if someone is at the entry

57:18 control point at Camp Leatherneck, would

57:19 Mr. Baker have been inside a booth or would he

57:20 have been standing in sort of the outdoors?

57:21 A. A blend of both. And you're going

57:22 to rotate in and out of those positions

57:23 because, you know, some are -- are more

57:24 dangerous than others. Some are more taxing

57:25 physically than others and mentally taxing than

58:01 others. So you're probably on a rotation of

58:02 thirty to sixty minutes in a particular spot,

58:03 and then you're rotating quick.

58:04 Q. What type of vehicles would be

58:05 coming and going from a facility like

58:06 Camp Leatherneck?

58:07 A. All sorts. Certainly inbound and

58:08 outbound military vehicles. A lot of --

58:09 depending on the entry control point that

58:10 you're at, a lot of deliveries are made. So

58:11 that could be food. That could be water. You

58:12 know, I mean, those are primarily it. Anything

58:13 that is used logistically to operate a large

58:14 DoD facility is either coming in on the ground

58:15 or it's coming in, in the air. And if it's

58:16 coming on the ground, it has to come through

Page 16 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 64 of 107
58:17 the entry control point.

58:18 Q. When you refer to military

58:19 vehicle, would these be, you know, sort of

58:20 armored vehicles? Can you give me a

58:21 description of those vehicles?

58:22 A. Vehicles that are leaving through

58:23 the ECP are typically armored Humvees.

59:23 - 60:07 MacWilliams, Andrew (2020-09-24) 1:34

59:23 Q. Okay. And about how many hours

59:24 out of the day would someone who was the

59:25 position spend at the entry control point?

60:01 A. Yeah. So a typical shift is eight

60:02 or twelve hours depending on the location that

60:03 you're at and the security posture there. And

60:04 you are -- you might -- there could be a

60:05 scenario where you would be assigned to both

60:06 the tower and an ECP in a given day. But I

60:07 think typically you're in one or the other.

60:18 - 60:22 MacWilliams, Andrew (2020-09-24) 0:10

60:18 Q. Okay. And would individuals at Re: [60:18 to 60:22] SUSTAINED

60:19 the entry control point be wearing hearing Def Obj 602

60:20 protection while they were on duty?

60:21 A. Eye and ear pro at all times is

60:22 what's expected.

62:11 - 62:21 MacWilliams, Andrew (2020-09-24) 1:38

62:11 Q. While Mr. Baker was stationed at

62:12 Camp Leatherneck, would he have undergone

62:13 additional firearms training?

62:14 A. Re-qualifications are standard

62:15 quarterly or biannually. Whether they were

62:16 doing additional training on firearms outside

62:17 of regular re-qualifications, I couldn't say.

62:18 Q. And what weapons would Mr. Baker

62:19 have had to re-qualify on?

62:20 A. Definitely rifle and pistol.

62:21 Beyond that, I'm not sure.

65:11 - 65:18 MacWilliams, Andrew (2020-09-24) 0:23

65:11 Q. Okay. So this document has

65:12 actually been previously marked as Baker

Page 17 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 65 of 107
65:13 Exhibit 28. Do you recognize this document as

65:14 a Triple Canopy job application?

65:15 A. Yes.

65:16 Q. All right. And does this appear

65:17 to be Mr. Baker's job application from 2012?

65:18 A. As far as I can tell, yes.

67:10 - 68:20 MacWilliams, Andrew (2020-09-24) 2:35

67:10 Q. All right. Now, if you can turn

67:11 to tab ten for me. This also has been

67:12 previously marked. This is Baker Exhibit 31.

67:13 And this is identified as a medical history

67:14 form, also with Triple Canopy's logo in the top

67:15 left-hand corner. What is this document, to

67:16 your knowledge?

67:17 A. This looks like an older version

67:18 of the medical history form. It actually says

67:19 that right at the top of the form. And so he's

67:20 sort of -- like a lot of times when you go in

67:21 to see your doctor, he's checking off items in

67:22 his medical history. Self disclosing, I should

67:23 say.

67:24 Q. All right. And as you can see

67:25 here on the first page, you see that he

68:01 indicates no for everything except barotrauma

68:02 hearing loss. Do you see that?

68:03 A. I do.

68:04 Q. All right. And then on the next

68:05 page it asks for an explanation for anything

68:06 that was marked yes on the previous page. Is

68:07 that correct?

68:08 A. That's correct.

68:09 Q. All right. And Mr. Baker

68:10 indicates here I have ten percent hearing loss

68:11 and tinnitus. It is a service-connected

68:12 disability. Do you see that?

68:13 A. I do.

68:14 Q. All right. Why is it important to

68:15 Triple Canopy to have, you know, more of an

68:16 explanation of if someone has a history of

68:17 hearing loss?

68:18 A. Again, I think it speaks to

68:19 whether somebody is fit -- medically fit to

Page 18 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 66 of 107
68:20 work on a Triple Canopy contract.

70:24 - 71:07 MacWilliams, Andrew (2020-09-24) 0:27

70:24 Q. All right. And there is an e-mail

70:25 chain above that where Michaela Reynolds wrote

71:01 in part to Mr. Baker, can you please reply to

71:02 this e-mail stating whether or not your hearing

71:03 loss will affect your ability to perform your

71:04 duties on this contract, and if so, in what

71:05 way. I will just need to add the response to

71:06 your file. Do you see that?

71:07 A. I do.

71:12 - 71:23 MacWilliams, Andrew (2020-09-24) 0:27

71:12 Q. All right. Was this something

71:13 that was typically done where there might be

71:14 some follow-up where someone indicates they had

71:15 a medical condition in their application?

71:16 A. Yes. Follow-up would certainly

71:17 take place.

71:18 Q. All right. And then Mr. Baker

71:19 responds to Ms. Reynolds, my hearing loss is

71:20 minor and only in my left ear. It will in no

71:21 way affect my ability to perform my duties. Do

71:22 you see that?

71:23 A. I do.

73:24 - 75:21 MacWilliams, Andrew (2020-09-24) 2:29

73:24 Q. All right. And if you would, just Re: [73:24 to 75:02] OVERRULED

73:25 take a moment and if you'll flip through. My Pltf Obj 602; 403

74:01 question is just simply, you know, what role

74:02 this e-mail would have played in Mr. Baker's

74:03 job application process?

74:04 A. Again, the -- the admin who's

74:05 processing, you know, Mr. Baker back in 2012 is

74:06 trying to understand whether he has a high

74:07 likelihood of passing the medical exam that's

74:08 going to take place. And it happens a lot.

74:09 It's very standard communication. The other

74:10 thing that's going on, being as level as I can

74:11 be, is a lot of VA clinics are taking place now

74:12 and have over the years and rightly so. And

74:13 separating military members are encouraged upon

Page 19 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 67 of 107
74:14 separation to claim as much disability as they

74:15 can. I'm not judging. That's just what takes

74:16 place. And so a lot of times we're having

74:17 applicants come to the table who are claiming

74:18 something on their disability form with the VA

74:19 that is a disability, you know -- it is

74:20 something that happened to them while they

74:21 were, you know, serving in the military that is

74:22 on their disability form with the VA but not

74:23 necessarily a disqualifier for employment with

74:24 Triple Canopy. And understanding that and

74:25 trying to vet that out requires some back and

75:01 forth between the applicant and the delivering

75:02 teams.

75:03 Q. So after this initial application

75:04 where he filled out the health form and he

75:05 clarifies his condition by e-mail, what would

75:06 the next step have been in terms of evaluating

75:07 his medical condition, and specifically his

75:08 hearing?

75:09 A. It would have been a third party

75:10 medical examination.

75:11 Q. All right. So if you could turn

75:12 to tab nine, please. This was previously

75:13 marked as Exhibit 30. And this is titled a

75:14 pre-deployment health assessment. Do you

75:15 recognize this document?

75:16 A. I recognize the form, yes.

75:17 Q. Okay. And what is this form?

75:18 A. This is a DoD-specific

75:19 pre-deployment medical form that is often

75:20 stipulated by the mod. It's over the top of

75:21 the contract.

76:05 - 76:16 MacWilliams, Andrew (2020-09-24) 1:36

76:05 Q. Okay. And so -- and this was

76:06 conducted by, as you described, a third party.

76:07 Is that right?

76:08 A. I -- yes, I did say that. But I'm

76:09 not aware who Steven Bull is. That's the

76:10 doctor who signed the form.

76:11 Q. Why was it Triple Canopy's policy

76:12 to have health assessments conducted by a third

Page 20 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 68 of 107
76:13 party?

76:14 A. I think it's pretty simple. We're

76:15 not a medical company. And so making that

76:16 determination is outside of our expertise.

77:05 - 77:21 MacWilliams, Andrew (2020-09-24) 1:44

77:05 Q. Okay. But at the end of this,

77:06 there is, you know, a question about final

77:07 medical disposition. Do you see that?

77:08 A. I do.

77:09 Q. And as of October 2, 2012,

77:10 Mr. Baker was considered deployable. Is that

77:11 correct?

77:12 A. That's what it says, yes.

77:13 Q. Okay. And what is your

77:14 understanding of what that means?

77:15 A. That he's -- he's qualified

77:16 medically. He meets all of the medical

77:17 requirements to go on contract.

77:18 Q. And would those have been the

77:19 medical requirements that were set -- set forth

77:20 in the mods?

77:21 A. Yes.

78:09 - 78:19 MacWilliams, Andrew (2020-09-24) 0:25

78:09 Q. And just to be clear on the second

78:10 page, there is a section where the medical

78:11 doctor could refer an individual out to a

78:12 specialist. Do you see that?

78:13 A. I do see that, yes.

78:14 Q. And for Mr. Baker, he was not

78:15 referred out to anyone. Correct?

78:16 A. That's correct. That's what it

78:17 says.

78:18 Q. Including to an ENT. Correct?

78:19 A. Yes.

78:23 - 79:05 MacWilliams, Andrew (2020-09-24) 0:19

78:23 Q. It has previously been marked as

78:24 Exhibit 33. And this is on Triple Canopy's

78:25 letterhead. It says hearing communicable

79:01 disease state. Do you see that?

79:02 A. I do.

Page 21 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 69 of 107
79:03 Q. And it looks like Mr. Baker was

79:04 tested on February 10, 2012. Do you see that?

79:05 A. I -- yes.

80:14 - 80:18 MacWilliams, Andrew (2020-09-24) 0:14

80:14 Q. All right. And this indicates

80:15 that Dr. Bull has reached the conclusion that

80:16 Mr. Baker was capable of hearing ordinary

80:17 conversation. Is that correct?

80:18 A. That's what it says, yes.

82:24 - 86:05 MacWilliams, Andrew (2020-09-24) 4:42

82:24 Q. All right. And so just to clarify

82:25 those, if we now go to tab nine, which is

83:01 Exhibit 30, we were looking at the

83:02 pre-deployment health assessment. Do you see

83:03 that?

83:04 A. Yes.

83:05 Q. And it does indicate under the

83:06 demographics section that today's date is

83:07 February 2, 2012. Do you see that,

83:08 Mr. MacWilliams?

83:09 A. That's correct.

83:10 Q. All right. And if you turn to the

83:11 second page, this is where we were discussing

83:12 the fact that Dr. Bull had declared a final

83:13 medical disposition for Mr. Baker

83:14 as deployable. Correct?

83:15 A. Correct.

83:16 Q. All right. And the date notation

83:17 here is actually listed in the European

83:18 convention of days, months, years. Do you see

83:19 that?

83:20 A. I do.

83:21 Q. All right. So does it look like

83:22 Dr. Bull had actually declared Mr. Baker

83:23 deployable on February 10, 2012?

83:24 A. That's correct.

83:25 Q. All right. So this form or this

84:01 exam occurred shortly after the job application

84:02 that Mr. Baker supplied to Triple Canopy. Is

84:03 that right?

84:04 A. Yes.

Page 22 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 70 of 107
84:05 Q. Okay. And this was around the

84:06 same time as the e-mail exchange that Mr. Baker

84:07 was asked to provide some follow-up information

84:08 about his hearing condition. Correct?

84:09 A. Yes.

84:10 Q. All right. And so if we look at

84:11 tab twelve, this has been marked -- this has

84:12 previously been marked as Exhibit 33, which is

84:13 the hearing communicable disease statement.

84:14 And Dr. Bull signed off that Mr. Baker was

84:15 capable of hearing ordinary conversation. Do

84:16 you see that?

84:17 A. I do.

84:18 Q. It looks like that was also on

84:19 February 10, 2012. Does that make sense?

84:20 A. Yes.

84:21 Q. All right. And then when we were

84:22 looking at Exhibit 34, which is behind tab 13,

84:23 the report of a medical examination. Do you

84:24 see that?

84:25 A. Yes.

85:01 Q. That is dated February 22, 2012.

85:02 Do you see that?

85:03 A. Right. Yes.

85:04 Q. And so given those -- well, and

85:05 then let's look at the next page, tab 14, which

85:06 was previously marked as Exhibit 35. This is

85:07 also -- this is a report of medical history.

85:08 Do you see that?

85:09 A. Yes.

85:10 Q. And if you flip to the last page,

85:11 this was signed by what appears to be

85:12 Dr. Burnham on February 23, 2012. Do you see

85:13 that?

85:14 A. Yes.

85:15 Q. All right. So now having

85:16 understood kind of the timing of those

85:17 different forms and exams, can you explain at

85:18 least your understanding of the medical

85:19 examination sequence for Mr. Baker heading into

85:20 his deployment on the Camp Leatherneck

85:21 contract?

85:22 A. I think the documents kind of

Page 23 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 71 of 107
85:23 speak for themselves. He did at least one

85:24 medical assessment on the 10th and then

85:25 followed up with a doctor on the 22nd and 23rd

86:01 of February of 2012.

86:02 Q. Okay. And all of those

86:03 examinations ended up in Mr. Baker's personnel

86:04 file for Triple Canopy. Correct?

86:05 A. Correct.

90:14 - 91:04 MacWilliams, Andrew (2020-09-24) 1:55

90:14 Q. Did you ever see any indication

90:15 anywhere in Mr. Baker's personnel file that he

90:16 ever had difficulty hearing or communicating

90:17 with any other employees of Triple Canopy?

90:18 A. No.

90:19 Q. Okay. Did you see any indication

90:20 in Mr. Baker's personnel file that his hearing

90:21 condition interfered with his ability to

90:22 perform his job duties at any time while

90:23 employed by Triple Canopy?

90:24 A. I did not see anything like that.

90:25 Q. If Mr. Baker's hearing condition

91:01 did interfere with his job performance in any

91:02 way, would you expect to see that documented in

91:03 his file?

91:04 A. I would expect to see that, yes.

92:05 - 92:06 MacWilliams, Andrew (2020-09-24) 0:07

92:05 Q. All right. I'd like to turn to

92:06 Mr. Baker's job application in 2020. Can you

95:23 - 96:14 MacWilliams, Andrew (2020-09-24) 1:49

95:23 Q. I see. So this was -- this was a

95:24 contract with the Department of State.

95:25 Correct?

96:01 A. Yes, it is.

96:02 Q. Okay. And so can you just give me

96:03 an overview of what type of job might -- you

96:04 know, it could be at a very general level. But

96:05 what types of jobs would be under this task

96:06 order for which Mr. Baker was applying?

96:07 A. Specifically the PSS basic class

96:08 which was here that he signed up for is for

Page 24 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 72 of 107
96:09 mobile security operators on these task orders.

96:10 More administrative types go to a different

96:11 class. And so you can tell because he was

96:12 enrolled in the PSS basic class that it was

96:13 certainly some type of security position that

96:14 he was -- he was intending to go into.

97:07 - 98:11 MacWilliams, Andrew (2020-09-24) 2:48

97:07 Q. And this is the type of position

97:08 you said that involves much longer training.

97:09 Is that correct?

97:10 A. Correct. The PSS basic course

97:11 that's listed here is 42 days long.

97:12 Q. And so if we turn back to what we

97:13 were looking at just a moment ago, which was in

97:14 tab -- well, let me just ask you this while I'm

97:15 finding the page. The medical screening by

97:16 Mustang Medical, are you familiar with

97:17 Mustang Medical?

97:18 A. Mustang Medical is our third party

97:19 provider that's onsite located on our compound

97:20 where the training is held.

97:21 Q. And so in what part of the

97:22 application process would the medical

97:23 examination have been conducted?

97:24 A. Once he arrives -- once Mr. Baker

97:25 had arrived at our facility in North Carolina

98:01 for training, medical is the very first thing

98:02 that's done. Typically --

98:03 Q. And would that medical examination

98:04 have involved an evaluation of his hearing?

98:05 A. Yes. Yes, it would have.

98:06 Q. And to your understanding, was

98:07 Mr. Baker declared deployable based on his

98:08 medical examination in 2020?

98:09 A. I believe so. That's the document

98:10 we were looking at for Mustang, if I'm not

98:11 mistaken.

99:11 - 99:24 MacWilliams, Andrew (2020-09-24) 1:47

99:11 Q. Is there anything in Mr. Baker's

99:12 application and medical screening in 2020 that

99:13 indicates that special accommodations needed to

Page 25 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 73 of 107
99:14 be made or mitigations were necessary for his

99:15 hearing condition in any way?

99:16 A. None that I can see.

99:17 Q. All right. Would a whisper test

99:18 have been performed as part of this medical

99:19 qualification?

99:20 A. That's my understanding, yes.

99:21 Q. Okay. And so in order to be

99:22 declared fit for duty, Mr. Baker would have had

99:23 to pass that test. Is that correct?

99:24 A. That's my understanding, yes.

102:21 - 104:22 MacWilliams, Andrew (2020-09-24) 2:17

102:21 Q. All right. And just to recap, in

102:22 2020 Mr. Baker applied for a position that was

102:23 under a Department of State contract. Is that

102:24 correct?

102:25 A. That's correct.

103:01 Q. And your understanding is that was

103:02 applying for a mobile security position. Is

103:03 that right?

103:04 A. Yes.

103:05 Q. All right. And as part of that

103:06 application process, Mr. Baker would have had

103:07 to go through an initial sort of screening of

103:08 his qualifications in order to move forward

103:09 into training. Is that correct?

103:10 A. Yes.

103:11 Q. All right. And that included also

103:12 a medical examination and a declaration of

103:13 whether he was fit for duty. Correct?

103:14 A. Correct.

103:15 Q. So Mr. Baker in 2020, specifically

103:16 in late July, was declared fit for duty to

103:17 serve in a mobile security contract for the

103:18 Department of State. Correct?

103:19 A. Correct.

103:20 Q. But Mr. Baker ultimately was not

103:21 hired by Triple Canopy. Is that right?

103:22 A. That's correct.

103:23 Q. Okay. Can you explain -- let me

103:24 ask first, can you just explain how far

103:25 Mr. Baker got into the process before he was

Page 26 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 74 of 107
104:01 told he would not be employed?

104:02 A. He made it -- there's no real good

104:03 way of explaining that quite honestly. He made

104:04 it to August 20. So he made it not quite

104:05 halfway through.

104:06 Q. Okay. And this was the training

104:07 that we discussed earlier that was the more

104:08 complicated. It involved both classroom

104:09 training and weapons qualification. Is that

104:10 right?

104:11 A. Correct.

104:12 Q. Okay. And what is your

104:13 understanding of what type of weapons training

104:14 he did get through before his position was

104:15 terminated?

104:16 A. Sure. So he would have done all

104:17 of the live fire qualifications. Again,

104:18 those -- I think we talked about this earlier.

104:19 Those take place very early on in the process.

104:20 And so yeah, he failed at the -- the weapons

104:21 handling and tactics portion of the -- of the

104:22 training.

106:03 - 106:10 MacWilliams, Andrew (2020-09-24) 1:31

106:03 Q. Okay. Do you know what -- if he

106:04 had completed all of his qualifications,

106:05 whether he passed or not, do you know what the

106:06 set of qualifications would have been for that

106:07 position, what weapons?

106:08 A. Yes. Again, WPS qualifications

106:09 are an M4, a nine millimeter, an M240, an M249,

106:10 an M203, and a shotgun.

106:11 - 106:19 MacWilliams, Andrew (2020-09-24) 0:24

106:11 Q. And do you know how many rounds

106:12 are fired as part of those qualifications?

106:13 A. I know that the rifle -- no, I

106:14 don't. No, I don't off the top of my head.

106:15 Q. And would all of those

106:16 qualifications have been conducted at an

106:17 outdoor shooting range?

106:18 A. Yes. We don't have any indoor

106:19 shooting ranges.

Page 27 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 75 of 107
106:20 - 107:04 MacWilliams, Andrew (2020-09-24) 0:29

106:20 Q. And you've mentioned that he

106:21 failed the weapons handling. What does that

106:22 mean?

106:23 A. I am not a trainer, nor do I have

106:24 a tactical background. So but the note that's

106:25 provided here says that he was dropped from

107:01 training class for unsafe weapons handling

107:02 during a mechanical breach in practical

107:03 exercise. As a result he is not eligible to

107:04 return for WPS training.

107:05 - 107:13 MacWilliams, Andrew (2020-09-24) 0:25

107:05 Q. Do you have any information about Re: [107:10 to 107:13] OVERRULED

107:06 what it means to have an unsafe weapons Def Obj 602

107:07 handling practice?

107:08 A. Not in this instance. Just the

107:09 note is what it says.

107:10 Q. Did Mr. Baker's failure to be

107:11 hired on this contract have anything whatsoever

107:12 to do with his hearing condition?

107:13 A. I wouldn't be able to know that.

109:16 - 109:19 MacWilliams, Andrew (2020-09-24) 0:16

109:16 Q. I asked that inartfully. Was

109:17 Mr. Baker ever medically disqualified from

109:18 employment?

109:19 A. Not that I can see.

120:14 - 121:11 MacWilliams, Andrew (2020-09-24) 1:03

120:14 Q. Okay. You went over a list of

120:15 weapons that you thought maybe would be used

120:16 during the Department of State training that

120:17 Mr. Baker recently went through. And I think

120:18 you told us that it would be some type of nine

120:19 millimeter, an M4, an M249, an M240, and an

120:20 M203, and then a twelve-gauge shotgun. Is that

120:21 right?

120:22 A. That's correct.

120:23 Q. All right. Have you ever been

120:24 present when people were training on the M203?

120:25 A. You know, I'm not sure. I've been

Page 28 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 76 of 107
121:01 there quite a bit. But I'm not sure if I've

121:02 ever seen a live fire on the 203.

121:03 Q. Okay. And can you tell us what an

121:04 M203 is?

121:05 A. It's a grenade launcher.

121:06 Q. All right. And do you know one

121:07 way or the other whether or not they're using

121:08 practice chalk rounds when they use that

121:09 grenade launcher or whether or not they're

121:10 using live grenades?

121:11 A. Both if I'm not mistaken.

121:12 - 121:16 MacWilliams, Andrew (2020-09-24) 0:12

121:12 Q. Okay. And do you know -- do you Re: [121:12 to 121:16] OVERRULED

121:13 know how many of each? Def Obj 602

121:14 A. No. And I think it varies based

121:15 on a candidate's familiarization with the

121:16 weapon system.

124:24 - 125:17 MacWilliams, Andrew (2020-09-24) 1:11

124:24 Earlier you talked about shoot houses and the Re: [125:08 to 125:17] SUSTAINED

124:25 mockup buildings for some of the training. Do Def Obj 602

125:01 you remember that testimony?

125:02 A. Yes, sir.

125:03 Q. All right. So and I apologize if

125:04 I didn't catch it. The -- which training were

125:05 you talking about where shoot houses were used?

125:06 A. That's the WPS -- the

125:07 State Department WPS training.

125:08 Q. Okay. And do you know what week

125:09 that training occurs during that WPS training?

125:10 A. No. I'm sorry. I don't.

125:11 Q. Okay. And so Mr. Baker made it

125:12 through roughly half of the training. Do you

125:13 know whether or not -- one way or the other

125:14 whether or not Mr. Baker used the M4 or a

125:15 pistol in the shoot house?

125:16 A. No, I'm not -- I'm not -- I

125:17 couldn't tell you either way.

Page 29 of 29

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 77 of 107
Preserved Objections Previous Rulings New Objections Rulings

11:20 - 11:23 Ohama, Dan (2020-11-17) 0:13

11:20 Q. Dr. Ohama, can you please state

11:21 your full name for the record.

11:22 A. My name is Dan Otoshi (phonetic)

11:23 Ohama.

18:17 - 20:04 Ohama, Dan (2020-11-17) 2:14

18:17 Q. Great. Can you, Dr. Ohama, please

18:18 give me a brief overview of your background

18:19 and experience in the military.

18:20 A. I initially enlisted in the Army

18:21 1984 for a four -- four-year enlistment

18:22 through 1988 as an infantry man, and then I

18:23 reentered the Army in 2002 as an audiologist

19:01 and served until 2018.

19:02 Q. When you started or went back to

19:03 the military in 2002 as an audiologist,

19:04 where were you based at that time?

19:05 A. My first assignment was in Korea.

19:06 Q. And which base was that?

19:07 A. Youngsan.

19:08 Q. How long were you there?

19:09 A. Two years.

19:10 Q. Where did you go after leaving

19:11 that base in -- in 2004? What was your next

19:12 base?

19:13 A. It was Fort Lewis in Washington.

19:14 Q. And how long were you at Fort

19:15 Lewis in -- in Washington?

19:16 A. I was assigned there for four

19:17 years. But in 2007 September through 2008

19:18 December, I was deployed to Iraq.

19:19 Q. Did you leave Iraq in 2008?

19:20 A. Yes, December 31st, 2008.

19:21 Q. And where did you go then? Okay.

19:22 And where did you go then?

19:23 A. And then I returned back to Fort

20:01 Lewis for about three months.

20:02 Q. Where did you go after that three

20:03 months?

20:04 A. To Schofield Barracks, Hawaii.

Designations

Page 1 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 78 of 107
20:21 - 21:17 Ohama, Dan (2020-11-17) 1:13

20:21 Q. Can you tell me, describe for me

20:22 what your responsibilities were as both a

20:23 clinical audiologist and a hearing program

21:01 manager while you were in Korea and while

21:02 you were at Fort Lewis.

21:03 A. As a clinical audiologist, I would

21:04 see patients for any type of hearing-related

21:05 complaints or who had a threshold shift in

21:06 the hearing that was identified on their

21:07 annual automated hearing test and make

21:08 appropriate referrals.

21:09 Q. And what were your

21:10 responsibilities as the hearing conservation

21:11 program manager?

21:12 A. That was more to manage the annual

21:13 hearing exams for all the soldiers and those

21:14 exposed personnel and to provide support

21:15 related to hearing protection and education,

21:16 training education for the units at Fort

21:17 Lewis.

24:15 - 25:03 Ohama, Dan (2020-11-17) 1:37

24:15 Q. For -- for purposes of explaining

24:16 how to instruct a service member how to use

24:17 hearing protection, is that one of the

24:18 things that you did as well?

24:19 A. Yes.

24:20 Q. Where did you get those

24:21 instructions from so you knew how to best

24:22 instruct a service member how to wear a

24:23 hearing protection device?

25:01 A. All of the education material came

25:02 from CHPM or Center for Health Promotion

25:03 Accredit -- Preventative Medicine.

27:11 - 27:19 Ohama, Dan (2020-11-17) 0:26

27:11 Q. Do you have a memory of a type of

27:12 hearing protection known as the com --

27:13 Combat Arms earplug version two?

27:14 A. I am aware of the double-sided

27:15 Combat Arms earplug, yes.

27:16 Q. So let's refer it to that way

Page 2 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 79 of 107
27:17 then. We'll call it the double-sided

27:18 earplug. Is that okay with you?

27:19 A. Yes.

29:07 - 30:09 Ohama, Dan (2020-11-17) 1:27

29:07 Q. Was the double-sided earplug

29:08 standard issue for Fort Lewis?

29:09 A. No.

29:10 Q. Do you recall what instructions

29:11 were given with the double-sided earplugs?

29:12 A. Well, the instructions consisted

29:13 of how to use the earplugs, which side to

29:14 use for which types of noise situations,

29:15 whether it's dismounted weapon start type of

29:16 noise or steady state noise exposures where

29:17 noise -- not exposure, but noise situations.

29:18 Q. Was it your understanding and did

29:19 you instruct service members that the yellow

29:20 side was to be used in the ear during

29:21 tactical modes?

29:22 A. Yes, for dismounted type of

29:23 operations.

30:01 Q. And then the green side of the

30:02 double-ended earplug, did you instruct

30:03 service members that that would be used for

30:04 loud impulses so that they would be blocked

30:05 out?

30:06 A. They could. They could use a

30:07 conditional earplug type of protection, so

30:08 they could use it in any situation, pretty

30:09 much, the green side.

32:09 - 32:12 Ohama, Dan (2020-11-17) 0:11

32:09 Q. So that I am understanding, Re: [32:09 to 32:19] OVERRULED

32:10 though, are you saying, Dr. Ohama, that you Pltf Obj 403; 401

32:11 remember there to be two different two-sided

32:12 earplugs?

32:16 - 33:03 Ohama, Dan (2020-11-17) 1:38

32:16 A. Yes. So I believe when the -- the Re: [32:09 to 32:19] OVERRULED

32:17 ones we had had a space in the middle of the Pltf Obj 403; 401

32:18 two ends where you could actually see the

32:19 hole in the inner core.

Page 3 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 80 of 107
32:20 Q. I see. If you -- could you give

32:21 me an estimate, during your extended time in

32:22 the military, how many soldiers you would

32:23 have fit with earplugs? Would it be in the

33:01 thousands?

33:02 A. During my time in the military?

33:03 Q. Yes.

33:08 - 34:05 Ohama, Dan (2020-11-17) 1:17

33:08 Q. And specific to the times that you Re: [33:08 to 34:05] SUSTAINED

33:09 would have instructed service members on the Pltf Obj nonresponsive

33:10 dual-ended plug, as you sit here, you don't

33:11 have a memory of ever telling a service

33:12 member they needed to fold the flange back

33:13 when they inserted it; is that fair?

33:14 A. Well, to clarify, when we provided

33:15 training for soldiers and fitting, I think

33:16 there was -- it wasn't a large portion of

33:17 soldiers who I trained and fit the

33:18 double-ended Combat Arms earplug. We had

33:19 all the other different earplugs also.

33:20 So I think it was just during my

33:21 time at my beginning time at Fort Lewis

33:22 where we really were fitting those

33:23 double-ended Combat Arms earplugs. And so

34:01 it wasn't very many soldiers that I remember

34:02 getting the double-ended Combat Arms

34:03 earplugs. By the time I was deployed in

34:04 2007, it was already being transitioned to

34:05 the next version of Combat Arms earplugs.

40:22 - 41:04 Ohama, Dan (2020-11-17) 0:18

40:22 Q. Did you ever know during any of Re: [40:22 to 41:10] OVERRULED

40:23 your time in the military that when the Pltf Obj nonresponsive

41:01 double -- double-ended earplug was tested in

41:02 2000, they were having difficulty getting a

41:03 proper fit because they couldn't get deep

41:04 insertion of the double-sided plug?

41:06 - 41:10 Ohama, Dan (2020-11-17) 0:14

41:06 A. I don't recall it being specific Re: [40:22 to 41:10] OVERRULED

41:07 to the double-sided earplug. It was with Pltf Obj nonresponsive

41:08 any earplug. If you couldn't get a proper

Page 4 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 81 of 107
41:09 seal and fit, we would change -- switch it

41:10 out for a different size.

42:21 - 43:03 Ohama, Dan (2020-11-17) 0:17

42:21 Q. If you had been aware that 3M,

42:22 when they tested the double-sided earplug,

42:23 found that it often imperceptibly loosened,

43:01 would you used -- have used a different

43:02 earplug for service members other than the

43:03 double-sided earplug?

43:05 - 43:11 Ohama, Dan (2020-11-17) 0:18

43:05 A. I'm not sure. I mean, it was the

43:06 same for any other earplug. It didn't -- it

43:07 doesn't matter what earplug we used. If we

43:08 weren't able to obtain a proper fit, we

43:09 would have switched it out for them, changed

43:10 to a different earplug, different size or

43:11 different type.

46:08 - 46:12 Ohama, Dan (2020-11-17) 0:14

46:08 Q. Did you ever know during the

46:09 timeframes that you were fitting the

46:10 double-ended Combat Arms earplug that the

46:11 initial test results for the plug showed

46:12 variable results?

46:14 - 46:18 Ohama, Dan (2020-11-17) 0:15

46:14 A. Not necessarily for the Combat

46:15 Arms earplug. Again, it was for any

46:16 earplug. If there was any type of

46:17 difficulty with the fit or seal, we would

46:18 change to a different earplug size or type.

48:10 - 48:12 Ohama, Dan (2020-11-17) 0:08

48:10 Q. Would you have con -- contacted 3M

48:11 about concerns that you had with the plug if

48:12 you had known these things?

48:14 - 48:18 Ohama, Dan (2020-11-17) 0:22

48:14 A. Not -- not necessarily 3M. I

48:15 would contact our Army head program

48:16 director's office to find out more about

Page 5 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 82 of 107
48:17 issues with the earplug first or CHPM. I

48:18 would contact CHPM.

54:09 - 54:11 Ohama, Dan (2020-11-17) 0:07

54:09 Q. This email is dated August 24th of

54:10 2004, right?

54:11 A. Yes.

55:15 - 56:10 Ohama, Dan (2020-11-17) 1:42

55:15 Q. In the second paragraph of Exhibit

55:16 3, you go on to say, I recently met with the

55:17 arm -- Army Hearing Observation consult --

55:18 consultant from CHPM Aberdeen Proving

55:19 Ground. Did I read that right?

55:20 A. Yes.

55:21 Q. And you go on to say, We spoke of

55:22 problems with soldiers not using the Combat

55:23 Arms earplugs effectively. Either they

56:01 forget what -- what was explained during

56:02 initial training with the earplugs, there

56:03 was a lack of proper training or whatever.

56:04 It goes on to say, In some

56:05 instances, Combat Arm earplugs order

56:06 requisitions were held up or disapproved

56:07 because of concerns that soldiers were not

56:08 using them correctly. Did I read that

56:09 correctly?

56:10 A. Yes.

58:05 - 58:08 Ohama, Dan (2020-11-17) 0:14

58:05 Q. Was there concern that the

58:06 confusions -- that the confusion that the

58:07 soldiers had might result in their ears and

58:08 their hearing not being protected correctly?

58:10 - 59:12 Ohama, Dan (2020-11-17) 1:16

58:10 A. The concern was for them to wear

58:11 the yellow side in constant noise type

58:12 situations where they would be

58:13 underprotected from continuous noise.

58:14 Q. You, in this email, go on to give

58:15 a couple different suggestions. And the

58:16 first one is here in paragraph three. My

Page 6 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 83 of 107
58:17 idea is to print small pictures and words on

58:18 the earplugs small enough to fit on the

58:19 second and third flange. Did I read that

58:20 correctly?

58:21 A. Yes.

58:22 Q. And you go on to say, For example,

58:23 on the yellow side, print weapons fire in

59:01 dismounted mode along with a picture of an

59:02 M16 machine gun, et cetera, on the olive

59:03 side, drag side -- olive drag side, excuse

59:04 me. Print, quote, noisy vehicles, end

59:05 quote, along with picture of a helicopter,

59:06 Army personnel carrier, et cetera.

59:07 Were those ever printed or did you

59:08 ever see them ever make those types of

59:09 instructions or hand out those types of

59:10 instructions with the pictures as you

59:11 mention or put them on the earplugs

59:12 themselves?

59:14 - 59:14 Ohama, Dan (2020-11-17) 0:01

59:14 Q. Was that ever done?

59:16 - 59:18 Ohama, Dan (2020-11-17) 0:11

59:16 A. Yes. In the next -- next

59:17 paragraph there, it explains the cards that

59:18 were developed.

60:07 - 60:17 Ohama, Dan (2020-11-17) 0:26

60:07 Q. Let me read that paragraph to you

60:08 and make sure it's clear in the record. It

60:09 says, An alternate idea is to create a small

60:10 laminated card that fits into the earplug

60:11 case that the Army currently issues. The

60:12 card will have to be small, approximately

60:13 1.5, 1.75. On the card will be a picture of

60:14 the Combat Arms earplug along with the small

60:15 prints and pictures as described. Did I

60:16 read that correctly?

60:17 A. Yes.

64:02 - 65:07 Ohama, Dan (2020-11-17) 1:25

64:02 Q. Okay. Dr. Ohama, have you ever

Page 7 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 84 of 107
64:03 seen this before?

64:04 A. Yes.

64:05 Q. When did you see this, if you

64:06 remember?

64:07 A. When I -- when I was at -- while I

64:08 was at Fort Lewis, this came out.

64:09 Q. Is this ultimately what the

64:10 laminate card became that you had mentioned

64:11 in your email?

64:12 A. I believe so, yes.

64:13 Q. Did you have anything to do with

64:14 the drafting of this, the wording in it?

64:15 A. No. This was initially a slide

64:16 that was developed from CHPM.

64:17 Q. Okay.

64:18 A. From CHPM.

64:19 Q. Tell me what you mean when you say

64:20 a slide that was developed.

64:21 A. We would provide the hearing

64:22 conservation technician courses and show

64:23 them all a slide showing of all the

65:01 different types of earplugs. I believe this

65:02 was one of the slides or something similar

65:03 to this was one of the slides.

65:04 Q. So this is a slide. Would this

65:05 have been provided -- the slide provided by

65:06 CHPM?

65:07 A. Yes.

65:08 - 65:12 Ohama, Dan (2020-11-17) 0:22

65:08 Q. Or do you know? Re: [65:08 to 65:12] OVERRULED

65:09 A. This was provided by CHPM. My -- Def Obj 602

65:10 my thought, I believe it was provided by

65:11 CHPM. I don't know that it was developed by

65:12 CHPM, but it was provided to us by CHPM.

70:22 - 71:03 Ohama, Dan (2020-11-17) 0:12

70:22 Q. That -- that's fair. Let me ask Re: [70:22 to 71:18] SUSTAINED

70:23 you this. Just as a general matter, more Pltf Obj 602; speculation

71:01 often than not, when soldiers are properly

71:02 trained, they follow the instructions given

71:03 to them. Would you agree with that?

Page 8 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 85 of 107
71:05 - 71:12 Ohama, Dan (2020-11-17) 0:20

71:05 A. Not necessarily. Soldiers tend to Re: [70:22 to 71:18] SUSTAINED

71:06 listen more to what their command or Pltf Obj 602; speculation

71:07 commanders -- to their command or

71:08 commander's instructions or their leadership

71:09 instructions. So in our case, they may or

71:10 may not listen. We don't -- we don't know.

71:11 Q. You are just not in the position

71:12 to know one way or the other?

71:14 - 71:18 Ohama, Dan (2020-11-17) 0:10

71:14 A. Yes, because I can explain Re: [70:22 to 71:18] SUSTAINED

71:15 something but whether or not the soldiers Pltf Obj 602; speculation

71:16 are really listening, I think usually, most

71:17 soldiers will listen but maybe not all. I

71:18 -- I can't say.

89:01 - 89:05 Ohama, Dan (2020-11-17) 0:17

89:01 Q. Good afternoon, Dr. Ohama. Thank

89:02 you very much for spending your day with us

89:03 today. I will try to keep this as brief as

89:04 possible, and we really appreciate your time

89:05 here.

93:09 - 95:05 Ohama, Dan (2020-11-17) 3:40

93:09 Q. Okay. I'd like to just briefly

93:10 ask you a little bit about your -- your

93:11 educational background. I don't think we

93:12 got to those questions earlier today. I

93:13 just want to just briefly touch on that

93:14 before we get into the further substance of

93:15 the documents here.

93:16 Where did you go to college, Dr.

93:17 Ohama?

93:18 A. I went -- received my bachelor

93:19 degree in speech pathology and audiology

93:20 from the University of Hawaii in '94. I got

93:21 my master's in audiology from the University

93:22 of Hawaii in 2000 -- did I say 2004? 1994

93:23 was my bachelor's, and my master's in '96.

94:01 And from there, I -- I joined the Army in

94:02 2002 as an audiologist and obtained my

94:03 doctorate of audiology degree from A.T.

Page 9 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 86 of 107
94:04 Still University in 2005.

94:05 Q. Great. And do you hold any

94:06 professional licenses currently?

94:07 A. Yes. Hawaii, audiologist.

94:08 Q. Okay. Okay. And we went through

94:09 the stations where you were stationed while

94:10 in the military. I just wanted to clarify a

94:11 couple of points. You said that you were at

94:12 Fort Lewis between 2004 and 2009, but you

94:13 were deployed to Iraq for part of that time;

94:14 is that correct?

94:15 A. Yes.

94:16 Q. And can you tell me the exact

94:17 dates of your deployment?

94:18 A. September 2007 through December

94:19 2008.

94:20 Q. Okay. And then you returned to

94:21 Fort Lewis before going to Schofield

94:22 Barracks in June of 2009; is that correct?

94:23 A. Yes. It could have been March. I

95:01 forget. Between March and May because I

95:02 think I reported to Schofield Barracks.

95:03 Q. And you were at Fort Lewis up

95:04 until that time; is that correct?

95:05 A. Yes.

95:14 - 97:05 Ohama, Dan (2020-11-17) 2:08

95:14 Q. Okay. So with respect to your

95:15 military experience, has it been your

95:16 experience since you joined the military the

95:17 noise exposures can present a risk of

95:18 hearing loss and tinnitus to service

95:19 members?

95:20 A. Yes.

95:21 Q. And can you provide an example of

95:22 some of the types of noises that can present

95:23 a risk of hearing loss and tinnitus to

96:01 service members?

96:02 A. It's -- primarily, it was the

96:03 exposure to weapons fire and secondary to

96:04 continuous type noise.

96:05 Q. And when you say continuous type

96:06 noise, would tanks be the example of

Page 10 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 87 of 107
96:07 continuous noise?

96:08 A. Yes. Machinery or vehicles.

96:09 Q. Aircraft?

96:10 A. Aircrafts.

96:11 Q. Okay. And does a service member's

96:12 noise exposures sometimes include impulse

96:13 noises?

96:14 A. Weapons fire would be considered

96:15 -- well, impulse, could be if it was --

96:16 maybe the engineers if they were using some

96:17 type of tools or equipment, they might -- or

96:18 mechanics, they might have exposure to the

96:19 impulse type noises.

96:20 Q. Okay. Can you -- can you describe

96:21 for me what your definition would be of an

96:22 impulse noise?

96:23 A. Impulse would be more of a rapid

97:01 succession of loud bursts of noise.

97:02 Q. Would an explosive device be an

97:03 example of an impulse noise?

97:04 A. That would be more of an impact

97:05 type of noise, explosion or weapons fire.

99:16 - 99:19 Ohama, Dan (2020-11-17) 0:14

99:16 Q. In your experience, have you ever Re: [99:16 to 99:22] OVERRULED

99:17 encountered situations where service members Pltf Obj 611 (vague, leading),

99:18 are reluctant to use hearing protection 602

99:19 devices?

99:22 - 99:22 Ohama, Dan (2020-11-17) 0:03

99:22 A. Reluctant or noncompliant, yes. Re: [99:16 to 99:22] OVERRULED

Pltf Obj 611 (vague, leading),

602

100:09 - 100:13 Ohama, Dan (2020-11-17) 0:18

100:09 Q. In your experience, has it ever Re: [100:09 to 101:01] SUSTAINED

100:10 been the case that maintaining situational Pltf Obj 602; speculation; 611

100:11 awareness was one of the reasons why a

100:12 service member might have been reluctant to

100:13 wear a hearing protection device?

100:16 - 101:01 Ohama, Dan (2020-11-17) 1:49

100:16 A. In my experience, I've read Re: [100:09 to 101:01] SUSTAINED

Page 11 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 88 of 107
100:17 testimonies on some soldiers saying that, Pltf Obj 602; speculation; 611

100:18 similar things like that, but I've never

100:19 really seen that in -- well, I've seen it --

100:20 soldiers say that when they went to combat,

100:21 for example, why they wouldn't use it. I've

100:22 seen -- I've seen soldiers, just more art --

100:23 articles or use article or some testimony

101:01 somewhere.

108:01 - 108:19 Ohama, Dan (2020-11-17) 1:36

108:01 Q. Dr. Ohama, before we went off the

108:02 record, we were discussing the DOD

108:03 instruction, and I'll have Cassie put that

108:04 back up, which is Exhibit 12.

108:05

108:06 (Joint Exhibit 12 was marked for

108:07 identification and is attached to the

108:08 original transcript.)

108:09

108:10 Q. And -- and I believe your

108:11 testimony that this is a more general

108:12 instruction as opposed to the Army pamphlet,

108:13 which is a more specific instruction; is

108:14 that correct?

108:15 A. Yes.

108:16 Q. Okay. And you stated that you

108:17 believe that this was updated sometime in

108:18 2010?

108:19 A. About that timeframe, yes.

109:11 - 109:14 Ohama, Dan (2020-11-17) 0:10

109:11 Q. And was this also in effect when

109:12 you were the hearing conservation program

109:13 manager at Fort Lewis in 2006?

109:14 A. Yes.

111:20 - 112:07 Ohama, Dan (2020-11-17) 1:34

111:20 Q. Dr. Ohama, the instruction states

111:21 that the DOD component shall prepare a

111:22 written plan for the implementation of a

111:23 comprehensive hearing conservation program.

112:01 Do you understand the Army to be one of the

112:02 DOD components as stated here?

Page 12 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 89 of 107
112:03 A. Yes.

112:04 Q. And is the pamphlet that we looked

112:05 at earlier the written plan that the Army

112:06 had in use during your time in the military?

112:07 A. Yes.

112:10 - 113:08 Ohama, Dan (2020-11-17) 1:17

112:10 Q. Section 6.6.2 here, Dr. Ohama,

112:11 states, The DOD component shall issue

112:12 personal hearing protectors free to all

112:13 personnel who work in designa- -- designated

112:14 hazardous noise areas or operate noise

112:15 hazardous equipment. Did I read that

112:16 correctly?

112:17 A. Yes.

112:18 Q. And on the same page, which is

112:19 6.6.7, the instruction states, Preformed

112:20 earplugs shall be fitted and issued only

112:21 under the supervision of personnel who have

112:22 been specifically trained to fit earplugs;

112:23 is that correct?

113:01 A. Yes.

113:02 Q. And Section 6.6.9, which is just a

113:03 few lines down, states that Medically

113:04 trained personnel must examine and fit the

113:05 fit and condition of preformed and custom

113:06 earplugs at least annually. Did I read that

113:07 correctly?

113:08 A. Yes.

113:09 - 113:16 Ohama, Dan (2020-11-17) 0:26

113:09 Q. And during your time in the

113:10 military, were these requirements all

113:11 requirements that you followed as part of

113:12 your -- your hearing conservation programs?

113:13 A. During my whole time in the

113:14 military? I don't think it was consistently

113:15 done but primar- -- majority of the time, it

113:16 was done.

115:06 - 116:12 Ohama, Dan (2020-11-17) 1:22

115:06 Q. Okay. And do you know if these

115:07 provisions were consistently followed under

Page 13 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 90 of 107
115:08 your hearing conservation program at Fort

115:09 Lewis?

115:10 A. I think the -- well, as far as the

115:11 personnel being trained, it was -- in Fort

115:12 Lewis, the medics from each battalion, at

115:13 least two medics in each battalion were

115:14 certified as hearing consultation

115:15 technicians, so it would be their

115:16 responsibility to make sure that this was

115:17 being done.

115:18 Q. And I believe you testified before

115:19 that the medics in these battalions were

115:20 provided with a 40-hour training on

115:21 hearing--

115:22 A. Yes.

115:23 Q. -- protection devices?

116:01 A. Yes.

116:02 Q. Do you know if that training

116:03 specifically included training on the Combat

116:04 Arms dual-ended earplug?

116:05 A. Yes.

116:06 Q. And do you recall what that

116:07 training consisted of?

116:08 A. It was similar to what -- the

116:09 examples shown earlier with the instructions

116:10 on which side to use, the end out type

116:11 materials. Those are provided to the medics

116:12 also.

116:16 - 116:23 Ohama, Dan (2020-11-17) 1:31

116:16 Q. And, Dr. Ohama, I believe you --

116:17 you just testified that this was the more

116:18 specific instructions regarding hearing

116:19 conservation programs related to the Army

116:20 that you would have followed; is that

116:21 correct?

116:22 A. Yes. At this information level,

116:23 yes.

118:09 - 119:05 Ohama, Dan (2020-11-17) 1:58

118:09 Q. Section 6.3, which is just on the Re: [118:22 to 119:05] OVERRULED

118:10 other side of the page here, is entitled Pltf Obj misstates, 611

118:11 Characteristics. And in Subsection A1, it

Page 14 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 91 of 107
118:12 states, Preformed earplugs are triple or

118:13 single flanged earplugs. Medically trained

118:14 personnel must fit and examine these

118:15 earplugs at least annually to ensure proper

118:16 fit and condition. Do you see that?

118:17 A. Yes.

118:18 Q. And would the dual-ended Combat

118:19 Arms earplug be considered a preformed

118:20 earplug?

118:21 A. Yes.

118:22 Q. Okay. So in your experience, any

118:23 service member in the Army who received the

119:01 dual-ended Combat Arm earplug should have

119:02 been examined at least annually by trained

119:03 medical personnel for fit and condition; is

119:04 that correct?

119:05 A. Yes.

121:11 - 123:01 Ohama, Dan (2020-11-17) 2:44

121:11 Q. On a typical day, if you were

121:12 working in the audiology clinic in South

121:13 Korea, for example, how many -- how many

121:14 service members would you see?

121:15 A. As patients?

121:16 Q. Yes.

121:17 A. Well, for evaluations, anywhere

121:18 from five to seven, on average.

121:19 Q. And was that similar at Fort

121:20 Lewis?

121:21 A. Fort Lewis was a little busier, as

121:22 I recall. More maybe eight to ten. Eight

121:23 to ten sometimes on days where I worked at

122:01 the clinic.

122:02 Q. And during these visits, would you

122:03 issue service members hearing protection

122:04 devices?

122:05 A. Yes.

122:06 Q. What was your process for

122:07 determining which hearing protection device

122:08 to offer to the particular service member?

122:09 A. A quick -- quick view of the ear

122:10 canal to estimate the size of the earplug

122:11 they would take and having them try it on

Page 15 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 92 of 107
122:12 and provide them instructions on how to

122:13 insert the earplug and obtain an appropriate

122:14 fit.

122:15 Q. How did you ensure that service

122:16 members were getting the right hearing

122:17 protection for their level of noise

122:18 exposure?

122:19 A. Quick checks. We'll do the tug

122:20 check to make sure that there was a good

122:21 seal and it wasn't falling out, having them

122:22 -- you know, asking them how they -- how it

122:23 felt, you know, was -- was their -- their

123:01 the voice louder, things like that.

125:08 - 127:07 Ohama, Dan (2020-11-17) 3:38

125:08 Q. Okay. You -- you just testified

125:09 when you were fitting service members for

125:10 preformed plugs, you did the -- a tug test;

125:11 is that correct?

125:12 A. Yes.

125:13 Q. And can you describe the tug test

125:14 for me?

125:15 A. Once you observe that the earplug

125:16 was inserted properly -- properly, you know,

125:17 the outer flange should be close to the

125:18 outer edge of the ear canal. The third

125:19 flange or the last flange should be near or

125:20 close to the outer edge of the ear canal

125:21 itself. I would actually tug on the earplug

125:22 to make sure it wasn't too loose or falling

125:23 out.

126:01 Q. And would you do that test for --

126:02 for both ears?

126:03 A. Yes.

126:04 Q. And would you also do a visual

126:05 inspection of the earplugs?

126:06 A. Yes.

126:07 Q. Any other testing you would do to

126:08 ensure proper fit?

126:09 A. Besides asking them questions

126:10 about how their voice felt and how it fit,

126:11 if it felt airtight. That would be about

126:12 it.

Page 16 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 93 of 107
126:13 Q. Okay. And did medical personnel

126:14 actually insert the hearing protection

126:15 devices into the service members' ears, or

126:16 would they do that themselves?

126:17 A. I preferred -- preferred having

126:18 them do it themselves so once we left, they

126:19 would be able to put it back in correctly.

126:20 So I would instruct them to put it on. I

126:21 would watch them. And once they had it on,

126:22 I would ask them how it felt and do a

126:23 physical tug test.

127:01 Q. And did medical personnel train

127:02 service members about what to do if an

127:03 earplug loosened during use?

127:04 A. I'm not sure if -- if they were

127:05 trained audiology technicians, they should

127:06 have switched it out if there was any issues

127:07 with the fit of the earplug.

127:21 - 128:07 Ohama, Dan (2020-11-17) 1:31

127:21 Q. Did you ever instruct service

127:22 members on what to do if their earplugs

127:23 loosened during use?

128:01 A. I believe so when -- when I

128:02 instructed soldiers or provided training on

128:03 earplugs, I would explain if there -- if

128:04 there were any problems with the fit, you

128:05 know, of course, seek help, assistance to

128:06 replace the earplugs, either from us or from

128:07 their medics who were trained.

128:16 - 130:08 Ohama, Dan (2020-11-17) 2:54

128:16 Q. And how often were service members

128:17 required to report to the hearing

128:18 conservation program?

128:19 A. Annually. They would have to get

128:20 their annual audiometry done.

128:21 Q. And would they also have to report

128:22 pre and postdeployment?

128:23 A. Yes.

129:01 Q. Any other instances where they

129:02 would be required to report to the hearing

129:03 conservation program?

Page 17 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 94 of 107
129:04 A. If they experienced any type of

129:05 noise exposure and there were concerns about

129:06 a hearing injury, they would report.

129:07 Q. And were service members examined

129:08 for fit and condition of their preformed

129:09 earplugs at all of these visits?

129:10 A. It depends where and the

129:11 capability, again, but usually, it was done.

129:12 Q. And were these exams conducted

129:13 differently at any of the different bases

129:14 you served at, or was it a fairly uniform

129:15 procedure across your service?

129:16 A. You mean to actually check the fit

129:17 annually?

129:18 Q. Yes.

129:19 A. Again, it was different at each

129:20 installation. There were different

129:21 capabilities. So some installations, pretty

129:22 much everyone was checked. If you didn't

129:23 have one, you would be given an earplug and

130:01 put it on and checked. At other places, it

130:02 was more focused on the hearing test at the

130:03 time, so it wasn't really -- there wasn't

130:04 really time or capability to check everyone

130:05 for earplugs. We'd rely on the unit's

130:06 medics to support us with that.

130:07 Q. And which installations was

130:08 everybody checked, in your experience?

130:11 - 130:13 Ohama, Dan (2020-11-17) 0:11

130:11 A. This was in Hawaii. More Hawaii,

130:12 Fort Bragg, Fort Lew- -- not Fort Lewis.

130:13 Fort Hood.

130:21 - 132:15 Ohama, Dan (2020-11-17) 2:22

130:21 Q. During these visits, was there any

130:22 educational information made available to

130:23 service members regarding hearing protection

131:01 devices?

131:02 A. Again, different installations

131:03 with different capabilities, yes, we would

131:04 provide training and education, unit

131:05 briefing type education, advanced.

Page 18 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 95 of 107
131:06 Q. Can you describe what types of

131:07 educational materials were provided at these

131:08 briefings?

131:09 A. It was more verbal, verbal

131:10 explanations, when, how to use earplugs, and

131:11 they would basically fit -- if -- if we had

131:12 the capability, we would physically fit

131:13 every soldier with earplugs.

131:14 Q. Would you ever show videos,

131:15 educational videos on hearing protection?

131:16 A. It was --sometimes we would use

131:17 videos more for the civilian, the federal

131:18 civilian workers from the different

131:19 directorates since they weren't able to come

131:20 together as a, you know, a unit formation.

131:21 They all work in separate areas. So they

131:22 would utilize more the video type of

131:23 education -- training education material.

132:01 Q. And what about handouts?

132:02 A. Handouts, not necessarily

132:03 handouts. At Fort Lewis, we had to use the

132:04 handout to help to supplement the units

132:05 because they weren't really sure how to

132:06 brief SOPs and other things that was in the

132:07 VA pamph, so we would help them with

132:08 handouts and examples.

132:09 Q. At Fort Lewis, what did these

132:10 handouts consist of?

132:11 A. The requirements, basic

132:12 requirements, of a hearing conservation

132:13 program and/or information if any assistance

132:14 was required or support services was needed,

132:15 they could call us.

134:14 - 135:02 Ohama, Dan (2020-11-17) 1:36

134:14 Q. Dr. Ohama, we -- we looked at a

134:15 very similar document earlier. This one is

134:16 just in color, and I think it's a little

134:17 easier to read. And you stated you were

134:18 familiar with this document, correct?

134:19 A. Yes.

134:20 Q. And was this document distributed

134:21 to service members?

Page 19 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 96 of 107
134:22 A. Yes.

134:23 Q. Do you recall when in your

135:01 experience, you would have distributed this

135:02 -- this wallet card to service members?

135:05 - 135:13 Ohama, Dan (2020-11-17) 1:31

135:05 A. A lot of -- most of the times, we

135:06 would hand it out to soldiers. But usually,

135:07 we would provide these to the medics at the

135:08 units to pass out, hand out.

135:09 Q. And these would have been medics

135:10 that you would have trained to distribute

135:11 the Combat Arms at Fort Lewis and also at

135:12 Camp Casey?

135:13 A. Not at Camp Casey.

135:15 - 135:15 Ohama, Dan (2020-11-17) 0:02

135:15 A. More at Fort Lewis.

136:05 - 137:01 Ohama, Dan (2020-11-17) 1:02

136:05 Q. Dr. Ohama, do you see in the

136:06 bottom right-hand corner of this document

136:07 that there's a picture of the dual-ended

136:08 Combat Arms with the green flange folded

136:09 back?

136:10 A. Yes.

136:11 Q. And in this second line of the --

136:12 the text next to that photograph, it says,

136:13 For very large ear canals, fold opposing

136:14 plug back?

136:15 A. Yes.

136:16 Q. And it also notes, Check proper

136:17 fit by gently tugging on plug for tension

136:18 just above there?

136:19 A. Yes. Yes.

136:20 Q. And it's your testimony that these

136:21 cards were distributed to medics to pass out

136:22 to service members and also made available

136:23 in the clinics to soldiers at Fort Lewis?

137:01 A. Yes.

137:03 - 137:03 Ohama, Dan (2020-11-17) 0:00

137:03 A. Yes.

Page 20 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 97 of 107
138:02 - 138:09 Ohama, Dan (2020-11-17) 0:19

138:02 Q. And at the bottom of this

138:03 document, it's branded with U.S.A. CHPM; is

138:04 that correct?

138:05 A. Yes.

138:06 Q. And was it your testimony earlier

138:07 that these wallet cards were provided by

138:08 CHPM?

138:09 A. Yes.

138:12 - 139:13 Ohama, Dan (2020-11-17) 1:26

138:12 Q. Dr. Ohama, have you ever seen this

138:13 document or a document like it before?

138:14 A. It looks familiar, yes.

138:15 Q. And what is it, to your knowledge?

138:16 A. It was when the Combat Arms

138:17 earplugs were first being fielded around

138:18 that timeframe, I think.

138:19 Q. Okay. And was this a document

138:20 produced by U.S.A. CHPM?

138:21 A. I believe so, yes.

138:22 Q. And -- and just for the jury, can

138:23 you remind us what U.S.A. CHPM is?

139:01 A. U.S. Army -- oh, me?

139:02 U.S. Army Center For Health

139:03 Promotional Preventative Medicine.

139:04 Q. So this is a -- this is a

139:05 government organization; correct?

139:06 A. It's an Army -- yes, it's Army, an

139:07 Army office.

139:08 Q. And do you know what the purpose

139:09 of this -- this document was?

139:10 A. Well, it was being fielded, so I

139:11 guess it was to provide information of what

139:12 these earplugs were and what it was supposed

139:13 to do and how it was supposed to work.

139:23 - 140:10 Ohama, Dan (2020-11-17) 0:27

139:23 Q. Was the intent of this to inform

140:01 audiologists about the features of the

140:02 Combat Arms dual-ended?

140:03 A. Yes. I don't think it was

Page 21 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 98 of 107
140:04 specifically for audiologists. You could

140:05 give it to, again, technicians or whoever

140:06 was involved with distributing earplugs to

140:07 soldiers.

140:08 Q. And could it have been just also

140:09 distributed to service members as

140:10 informational materials?

140:12 - 140:12 Ohama, Dan (2020-11-17) 0:02

140:12 A. It could have.

140:23 - 141:04 Ohama, Dan (2020-11-17) 0:21

140:23 Q. And do you see the third bullet

141:01 point down which states, For exceptionally

141:02 large ear canals, fold the opposing plug

141:03 back to enhance proper insertion?

141:04 A. Yes.

Page 22 of 22

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 99 of 107
Preserved Objections Previous Rulings New Objections Rulings

8:06 - 8:11 Toner, David (2020-10-01) 0:17

8:06 Q. Good morning, Mr. Toner. My name is

8:07 Allie Ozurovich, and I represent the defendants in

8:08 this case, 3M Company and the Aearo entities.

8:09 Can you please state your name for

8:10 the record?

8:11 A. David Bryan Toner.

11:10 - 11:15 Toner, David (2020-10-01) 0:24

11:10 Q. Mr. Toner, where are you currently

11:11 employed?

11:12 A. The University of Wyoming. I work

11:13 under the police department. I work security, you

11:14 know, at the art museum. I run the security at the

11:15 art museum for the University.

11:19 - 11:22 Toner, David (2020-10-01) 0:12

11:19 How long have you worked at the

11:20 University of Wyoming as part of their police

11:21 department?

11:22 A. Four years.

12:04 - 14:17 Toner, David (2020-10-01) 4:18

12:04 Q. At the time that you started at the

12:05 University of Wyoming Police Department, what was

12:06 your position?

12:07 A. I worked briefly on building

12:08 security, but, you know, I was -- I was hired to

12:09 work at the art museum because the guy was retiring

12:10 there, the gentleman was retiring and they wanted

12:11 me to replace him.

12:12 Q. So the majority of your time at the

12:13 University of Wyoming Police Department has been in

12:14 the capacity of running security at the art museum;

12:15 is that correct?

12:16 A. That's correct.

12:17 Q. Can you give me a description of what

12:18 your day-to-day responsibilities are like at the

12:19 University of Wyoming Police Department?

12:20 A. Day-to-day is, you know, in the

12:21 morning, making sure the building is still secure

Designations

Page 1 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 100 of 107
12:22 from the night before. Checking the cameras, see

12:23 if there was any unusual activity at night. I get

12:24 there early. The art museum doesn't open until

12:25 10:00, and that is when the student security

13:01 starts.

13:02 And then the museum is open until

13:03 5:00. Then I secure the museum, and that is -- you

13:04 know, that is basically it.

13:05 Q. Do you have any supervising role as

13:06 part of your job responsibilities?

13:07 A. Yes. I supervise -- I have student

13:08 employees, and I supervise -- I have a minimum of

13:09 two working on a per-shift. If we have special

13:10 events, then I have, obviously, more.

13:11 Q. What do you mean by a special event?

13:12 A. Oh, we -- anywhere from art openings

13:13 to lectures to all -- they have many parties there.

13:14 You know, it is an art gallery, so there's all

13:15 kinds of various functions. Christmas. You know,

13:16 the holidays, there's lots of functions. There's

13:17 functions throughout the year of various types.

13:18 Q. And so for these functions, is it

13:19 typical to have you as a security guard in

13:20 attendance as well as student security guards?

13:21 A. Yes. There's either myself or, if I

13:22 am off, they put someone else over there. There's

13:23 always a security guard there to oversee everything

13:24 and then supervise the students.

13:25 Q. Can you give me a ballpark estimate

14:01 of the number of functions or special events that

14:02 occur at the museum over the course of a year?

14:03 A. Minimum of twenty-four to thirty --

14:04 twenty-four to thirty-six, I guess is a good

14:05 general number.

14:06 Q. So two or three a month,

14:07 approximately?

14:08 A. Yes.

14:09 Q. Mr. Toner, how do you know Lloyd

14:10 Baker?

14:11 A. Just as a student employee.

14:12 Q. When did you first meet him?

14:13 A. I would say approximately three and a

Page 2 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 101 of 107
14:14 half years ago. Three and a half to four years

14:15 ago. Something like that.

14:16 Q. So would that be sometime in 2016?

14:17 A. Yes.

16:15 - 18:21 Toner, David (2020-10-01) 3:24

16:15 Q. You said that you met Mr. Baker

16:16 sometime in 2016. Do you know how long Mr. Baker

16:17 worked at the University of Wyoming Police

16:18 Department?

16:19 A. He worked there for definitely, I

16:20 would say, two years. He worked there -- you know,

16:21 yeah, definitely two years that I can recall.

16:22 Q. So that would have been sometime in

16:23 2018, approximately?

16:24 A. Yes.

16:25 Q. What were Mr. Baker's job

17:01 responsibilities?

17:02 A. During a normal shift, we have two

17:03 positions. They either have to work at the inside

17:04 at the lower level at the loading dock to monitor

17:05 all -- everybody coming in and out, anything that

17:06 is being taken out of the building, because

17:07 obviously there's a lot of valuables in there. And

17:08 that is the one position.

17:09 And then they rotate, they will go

17:10 upstairs to the art gallery where their primary

17:11 function is really to make sure, you know, the art

17:12 isn't touched -- not so much theft. That would be

17:13 kind of difficult when it is open.

17:14 But they are just to make sure that

17:15 none of the artwork is damaged, really, and to

17:16 answer any questions that the public might have.

17:17 So they have to be a little -- usually they are a

17:18 little versed in whatever the display -- whatever

17:19 the theme is at the time.

17:20 Q. As far as you remember, was Mr. Baker

17:21 ever responsible for providing security services at

17:22 any of these special events at the University of

17:23 Wyoming Art Gallery?

17:24 A. Many of them. Lloyd always

17:25 volunteered to work extra. That is one thing I

Page 3 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 102 of 107
18:01 remember about him. So he worked a lot of special

18:02 events.

18:03 Q. Do you know the number of people that

18:04 would have attended the special events, on average?

18:05 A. That can vary, anywhere from a low of

18:06 thirty up to several hundred people. And at the

18:07 holidays, you are talking a thousand people. So --

18:08 but that is unusual. That is just at Christmas.

18:09 Generally fifty to two fifty would be probably a

18:10 realistic of the majority of the events.

18:11 Q. When the art gallery at the

18:12 University of Wyoming has these events, do they

18:13 take place in a particular room at the art gallery?

18:14 A. Most of them will take place, with a

18:15 few exceptions, in the lobby area and in the museum

18:16 itself. If it is a smaller venue, it could just

18:17 take place in the gallery or vice versa, in the

18:18 lobby.

18:19 Sometimes the whole building is open,

18:20 you know, and, obviously, then I -- you know, it is

18:21 a little more involved.

18:22 - 19:05 Toner, David (2020-10-01) 1:36

18:22 Q. For some of these larger special

18:23 events, how would you describe the noise levels

18:24 inside the museum at the time?

18:25 A. I don't think they are anything out

19:01 of the ordinary. You know, it is an art museum, so

19:02 there might be people socializing out in the lobby

19:03 where they serve cocktails or food, but really when

19:04 you are in a museum, it is not very loud, to be

19:05 honest with you.

19:06 - 24:05 Toner, David (2020-10-01) 8:51

19:06 Q. For any of these special events at

19:07 the time that Mr. Baker worked there, would there

19:08 ever be a live band or a DJ or any type of music

19:09 playing?

19:10 A. Yes. Yes. There would be live bands

19:11 in the lobby area, yes.

19:12 Q. Approximately how long do these

19:13 special events last over the course of the night?

Page 4 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 103 of 107
19:14 A. They will last anywhere from -- a

19:15 general thing, two to three hours.

19:16 Q. And during the special event, can you

19:17 describe for me what Mr. Baker's responsibility is

19:18 during the time of the event?

19:19 A. Well, usually we have them rotate so

19:20 they are not stuck doing one job all night.

19:21 There could be a floater that floats

19:22 throughout the lobby and the art gallery. They

19:23 have to work the doors to make sure no food or

19:24 drink is taken into the gallery.

19:25 So there's usually a couple in the

20:01 gallery itself. Someone works the door and someone

20:02 floats in the lobby. That is a general -- and

20:03 then -- what goes on.

20:04 Q. During any of those positions, would

20:05 Mr. Baker have been required to be near the lobby

20:06 where live music was playing?

20:07 A. Yes.

20:08 Q. During the special events, would part

20:09 of Mr. Baker's job requirements be interacting with

20:10 any of the attendees during the event?

20:11 A. Yes. Basically asking, you know,

20:12 answering any questions they might have or if

20:13 there's a problem, you know, yes.

20:14 Q. And did you ever have to communicate

20:15 with Mr. Baker during these events?

20:16 A. Well, sure. But really just you --

20:17 you know, you tell them, you know, the size of

20:18 event, what to look for. If I get a complaint

20:19 about food or I get a complaint about someone

20:20 touching -- if there's young children in there, to

20:21 make sure they don't touch the paintings. Or

20:22 whatever artwork it is. It doesn't necessarily

20:23 have to be paintings.

20:24 Q. So during the event, do you guys

20:25 communicate face-to-face? Is there like a

21:01 walkie-talkie headphone situation? I am just

21:02 trying to get the lay of the land of how the

21:03 interactions would take place.

21:04 A. Yeah, we had walkie-talkies, but we

21:05 have since got rid of those. We basically

Page 5 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 104 of 107
21:06 communicate, even if I have to, by even cell phone.

21:07 We don't have that big of a facility where it -- it

21:08 is basically face-to-face. Sometimes cell phone

21:09 but not very often.

21:10 When Lloyd was there, we did have

21:11 radios, but we very rarely, very rarely, if almost

21:12 never, used those radios. They were tied on the

21:13 police band, so we don't like to interrupt that

21:14 unless it is an emergency.

21:15 Q. As far as you remember from working

21:16 these events with Mr. Baker, did he ever have any

21:17 difficulties in communicating with you?

21:18 A. No.

21:19 Q. As far as you remember from working

21:20 these events with Mr. Baker, did you ever have any

21:21 difficulty with him not being able to follow

21:22 instructions?

21:23 A. No.

21:24 Q. And as far as you remember from

21:25 working these events with Mr. Baker, do you recall

22:01 him having any difficulty hearing or understanding

22:02 anything that you were communicating to him?

22:03 A. No.

22:04 Q. How would you describe Mr. Baker as

22:05 an employee?

22:06 A. Lloyd was one of my better employees.

22:07 He knew how to handle people really well, talk to

22:08 the public. He -- like I stated earlier, he always

22:09 volunteered for extra shifts, extra jobs, you know,

22:10 because some students really don't want to work.

22:11 He did.

22:12 Q. You mentioned that he knew how to

22:13 handle people really well and talk to the public.

22:14 Can you explain a lit bit more what you mean by

22:15 that?

22:16 A. Well, he just had good people skills.

22:17 He would rarely ever call me. As a matter of fact,

22:18 I honestly don't remember him ever calling me

22:19 saying I'm having a problem with someone, where I

22:20 have other students that, honestly, can't deal with

22:21 the most minor things sometimes, where Lloyd

22:22 just -- he was sort of -- I leave him go, he did

Page 6 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 105 of 107
22:23 his job. I didn't have to -- I honestly didn't

22:24 have to worry about Lloyd when he worked.

22:25 Q. So how much of his job, as far as you

23:01 know, required interacting with people or talking

23:02 to folks at the gallery?

23:03 A. To some degree, every day. I am sure

23:04 some days there was almost no interaction on a

23:05 normal day. I think probably the biggest

23:06 interaction is when we have -- we have -- every day

23:07 we have, you know, classes of school trips with a

23:08 lot of, you know, young children and, you know, he

23:09 has to communicate with the supervisor when the

23:10 kids are, you know, not behaving like they should

23:11 at an art gallery. That would be just about a

23:12 day-to-day thing, I would say.

23:13 Obviously, special events. People

23:14 have all kinds of questions. And, then, you know,

23:15 he has to communicate more.

23:16 Q. Have you ever received any complaints

23:17 from anyone with whom Mr. Baker was required to

23:18 interact about issues with him being able to hear?

23:19 A. No.

23:20 Q. And have you ever received any

23:21 complaints from anyone with whom Mr. Baker was

23:22 required to interact about issues with him being

23:23 able to communicate or being able to listen to what

23:24 they are communicating to him?

23:25 A. No.

24:01 Q. While Mr. Baker was employed at the

24:02 University of Wyoming Police Department, did you

24:03 personally ever notice that Mr. Baker had any

24:04 hearing loss?

24:05 A. No, I didn't.

24:08 - 24:25 Toner, David (2020-10-01) 1:46

24:08 While Mr. Baker was employed at the

24:09 University of Wyoming Police Department, did you

24:10 ever notice that Mr. Baker had any hearing-related

24:11 injuries?

24:12 A. No.

24:13 Q. Has Mr. Baker ever told you that he

24:14 has hearing loss?

Page 7 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 106 of 107
24:15 A. No.

24:16 Q. Has Mr. Baker ever told you that he

24:17 has any hearing-related injuries?

24:18 A. No.

24:19 Q. And so is it fair to say, then, that

24:20 you have never spoken to Mr. Baker about any

24:21 hearing loss or hearing-related injuries?

24:22 A. That is correct.

24:23 Q. I also understand you were his

24:24 supervisor, correct?

24:25 A. Yes.

25:01 - 25:06 Toner, David (2020-10-01) 0:20

25:01 Q. And so as part of your role as his Re: [25:01 to 25:06] SUSTAINED

25:02 supervisor, were you required to monitor his Def Obj Improper counter

25:03 performance or provide him with any performance

25:04 evaluations over the course of his employment?

25:05 A. We don't do that for student

25:06 employees. We don't have evaluations on them, no.

25:12 - 26:01 Toner, David (2020-10-01) 1:04

25:12 Q. And as far as you recall, did you

25:13 ever have any issues with Mr. Baker being able to

25:14 perform his job due to any inabilities to hear?

25:15 A. No.

25:16 Q. And have you ever received or did you

25:17 ever receive a complaint while Mr. Baker was

25:18 employed at the University of Wyoming related to

25:19 his inability to hear?

25:20 A. No.

25:21 Q. And did you ever receive a complaint

25:22 from anyone during the course of Mr. Baker's

25:23 employment at the University of Wyoming about his

25:24 job performance that related to any issues with any

25:25 hearing-related injuries?

26:01 A. No.

Page 8 of 8

Case 7:20-cv-00039-MCR-GRJ Document 164-1 Filed 06/10/21 Page 107 of 107