EXHIBIT 1

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 1 of 320
PLAINTIFFS’ AFFIRMATIVE 

DESIGNATIONS

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 2 of 320
Knauer, R. 2019-12-17

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 3 of 320
Knauer, R. 2019-12-17 2

Designation Preserved Objections Previous Rulings New Objections Rulings

8:6 - 8:10 Knauer, R. 2019-12-17

 8 6 BY MR. MONSOUR:

 8 7 Q. Good morning.

 8 8 A. Good morning.

 8 9 Q. What's your name?

 8 10 A. Richard Knauer.

8:18 - 8:24 Knauer, R. 2019-12-17

 8 18 Q. Okay. What do you do for a living?

 8 19 A. I am retired.

 8 20 Q. Okay. How long have you been retired?

 8 21 A. I have been retired since 2006.

 8 22 Q. Okay. And who did you work for when you

 8 23 retired?

 8 24 A. I worked for Aearo.

9:10 - 10:1 Knauer, R. 2019-12-17

 9 10 Q. Okay. Did you ever work for 3M?

 9 11 A. I -- after I retired from Aearo in -- in

 9 12 2006, I went back to work for Aearo at that time as a

 9 13 consultant and continued to work for Aearo for about

 9 14 three, three-and-a-half years, and I believe in that

 9 15 period of time -- definitely in that period of time 3M

 9 16 purchased Aearo, yes.

 9 17 Q. Okay. So you retired from working full

 9 18 time in 2006.

 9 19 Could you tell me exactly when in 2006?

 9 20 A. It was April 30th, 2006.

 9 21 Q. Okay. And then how long did you work as a

 9 22 consultant?

 9 23 A. I worked two different stints as a

 9 24 consultant. The original time I worked from 2006 to,

 9 25 I believe 2009, possibly a little bit in 2010. I

 10 1 don't have all -- I don't remember all of the details.

12:1 - 12:2 Knauer, R. 2019-12-17

 12 1 Q. When you retired, what was your title?

 12 2 A. Technical director.

Re: [12:1-12:8]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [12:1-12:8]

Plt Objection -

Improper Counter 

Designation per 

PTO 64

SUSTAINED as 

to [12:3-12:8] 

OVERRULED, 

in all other 

respects.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 4 of 320
Knauer, R. 2019-12-17 3

13:9 - 13:13 Knauer, R. 2019-12-17

 13 9 Q. What was your work relationship, and I'm

 13 10 talking about hierarchy, with Elliott Berger?

 13 11 Were you his supervisor?

 13 12 A. At times -- yes, many times I was his

 13 13 supervisor.

13:18 - 14:1 Knauer, R. 2019-12-17

 13 18 Q. And then there is a man by the name of, I

 13 19 think, Ron Kieper?

 13 20 A. Yes.

 13 21 Q. Were you his supervisor as well?

 13 22 A. Elliott Berger was his supervisor.

 13 23 Q. Okay. So Kieper reported to Berger,

 13 24 Berger reported to you?

 13 25 A. At -- certainly at the end of the -- at --

 14 1 at one point, yes.

15:13 - 16:14 Knauer, R. 2019-12-17

 15 13 Q. It says: "Dick is the Senior Technical

 15 14 Director For Passive Hearing Protection for Aearo

 15 15 Company, with the overall responsibility for

 15 16 development of new passive hearing products, has

 15 17 worked for the company for 26 years in a variety of

 15 18 technical areas related to development, evaluation,

 15 19 and testing of hearing protection and noise control

 15 20 products."

 15 21 Did I get that right?

 15 22 A. Yes.

 15 23 Q. "Dick has a BS from the University of

 15 24 Toledo and an MBA from the University of Indiana. 

He

 15 25 holds several patents, including one for the

 16 1 technology used to manufacture the SuperFit style of

 16 2 multi-layered foam earplug."

 16 3 Did I get that right?

 16 4 A. That is correct.

 16 5 Q. "With the exception of the Classic foam

 16 6 earplug, Dick has worked on and/or overseen

 16 7 development of nearly all passive hearing protection

 16 8 products that are currently sold by Aearo. He is a

 16 9 member of The Society of Plastics Engineers and a

 16 10 former member and officer (vice president) of the

 16 11 Hearing Protection Committee of the International

 16 12 Safety Equipment Association."

Re: [15:13-16:14]

Plt Objection - Improper 

Counter Designation per PTO 

64; D's are designating ex 1-

Knauer's resume 

Re: [15:13-16:14]

Plt Objection -

Improper Counter 

Designation per 

PTO 64; D's are 

designating ex 1-

Knauer's resume 

NO RULING

Re: [15:13-16:14]

Improper Counter 

Designation per PTO 64; 

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 5 of 320
Knauer, R. 2019-12-17 4

 16 13 Did I get that right?

 16 14 A. Yes.

18:2 - 18:13 Knauer, R. 2019-12-17

 18 2 Q. What was your role in the development of

 18 3 the Combat Arms Version 2 earplug?

 18 4 A. My role was simply as the manager of -- of

 18 5 the -- of the direct -- excuse me -- the director of

 18 6 the group to report -- report to management progress

 18 7 of the project and those type of things. Elliott

 18 8 Berger was the project manager. I took an active part

 18 9 in many different projects other than this one, but

 18 10 this particular one Elliott Berger was the project

 18 11 manager and led all of the development efforts. I

 18 12 just reported on it, attended meetings and that type

 18 13 of thing.

18:14 - 18:25 Knauer, R. 2019-12-17

 18 14 Q. What do you think of the Combat Arms

 18 15 Version 2 earplug?

 18 16 A. It is a good product. It -- I -- we heard

 18 17 many, many comments back about how -- lives it 

saved

 18 18 and that type of thing, as I remember.

 18 19 Q. Did you ever hear any criticisms of the

 18 20 product?

 18 21 A. I don't remember any criticisms. It would

 18 22 not be unusual, any project that's developed, you are

 18 23 going to get an occasional criticism. So it's

 18 24 possible that there were criticisms. I don't remember

 18 25 any, but it's possible there were criticisms.

Re: [18:14-18:25]

Plt Objection - Improper 

Counter Designation per PTO 

64; 402

Re: [18:14-18:25]

Plt Objection -

Improper Counter 

Designation per 

PTO 64; 402

OVERRULED

35:17 - 35:22 Knauer, R. 2019-12-17

 35 17 Let me hand you what I'm going to mark as

 35 18 Exhibit 5.

 35 19 (WHEREUPON, a certain document was

 35 20 marked Dick Knauer Deposition Exhibit

 35 21 No. 5, for identification, as of

 35 22 12/17/2019.)

35:24 - 36:7 Knauer, R. 2019-12-17

 35 24 Q. Exhibit 5, your name is not on Exhibit 5,

 35 25 but I want you to read through it.

 36 1 It is an e-mail from Elliott Berger to Ron

 36 2 Kieper, dated January 23rd of 2009. And if you'll

 36 3 look it over real quick, I'll ask you a few questions

 36 4 on it.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 6 of 320
Knauer, R. 2019-12-17 5

 36 5 A. Okay. Well, I will have to look it over

 36 6 because...

 36 7 Okay. I've read it.

36:8 - 36:9 Knauer, R. 2019-12-17

 36 8 Q. Okay. Have you ever seen it before?

 36 9 A. No.

Re: [36:8-36:9]

Improper Counter 

Designation per PTO 64; 

OVERRULED

38:11 - 38:21 Knauer, R. 2019-12-17

 38 11 Q. Were you aware on the Combat Arms

 38 12 Version 2 that testing on the yellow end had shown

 38 13 NRRs of 0, 0 and 5?

 38 14 A. Oh, I do not remember that, no, sir.

 38 15 Q. Okay. Let me ask you this: If a product

 38 16 gets NRRs of 0 and 0 and then 5, what should the 

NRR

 38 17 rating be for that product?

 38 18 A. Typically our procedure was to always

 38 19 report the lowest NRR obtained.

 38 20 Q. The lowest NRR?

 38 21 A. Yes.

Re: [38:11-38:14]

Def Objection - Foundation 

(602)

Re: [38:11-38:14]

Def Objection -

Foundation (602)

OVERRULED

43:17 - 43:23 Knauer, R. 2019-12-17

 43 17 So knowing that and knowing that customers

 43 18 of products, of hearing products, probably aren't as

 43 19 familiar with interpreting testing on hearing

 43 20 protection devices, would it be improper for a product

 43 21 that has a 0 NRR for the manufacturer to imply that

 43 22 that 0 NRR means no effect on audibility?

 43 23 Would that be improper?

Re: [43:17-44:1]

Def Objection - Vague, 

Argumentative (403), 

Foundation (602)

Re: [43:17-44:1]

Def Objection -

Vague, 

Argumentative 

(403), Foundation 

(602)

OVERRULED

Re: [43:17-44:1]

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

44:1 - 44:5 Knauer, R. 2019-12-17

 44 1 A. I don't know what you mean by improper.

 44 2 BY MR. MONSOUR:

 44 3 Q. Okay. So -- so what -- what if -- what if

 44 4 the company said that the 0 NRR allowed people to 

hear

 44 5 without impairment, would that be improper?

Re: [43:17-44:1]

Def Objection - Vague, 

Argumentative (403), 

Foundation (602)

Re: [44:3-44:20]

Def Objection - Relevance 

(401, 402); Vague, 

Argumentative (403), 

Foundation (602)

Re: [43:17-44:1]

Def Objection -

Vague, 

Argumentative 

(403), Foundation 

(602)

OVERRULED

Re: [44:3-44:20]

Def Objection -

Relevance (401, 

402); Vague, 

Argumentative 

(403), Foundation 

(602)

OVERRULED

Re: [43:17-44:1]

foundation (602)

Re: [44:3-44:11]

701; assumes facts, 

misstates (611, 403); 

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 7 of 320
Knauer, R. 2019-12-17 6

44:8 - 44:15 Knauer, R. 2019-12-17

 44 8 A. I would certainly prefer the -- a

 44 9 statement other than that, but that would be a

 44 10 statement that would be certainly a slight

 44 11 exaggeration, I could call it a slight exaggeration.

 44 12 BY MR. MONSOUR:

 44 13 Q. Right. If somebody had a product that had

 44 14 0 NRR and they said, Ah, you can hear clearly with

 44 15 this, that would also be deceptive, true?

Re: [44:3-44:20]

Def Objection - Relevance 

(401, 402); Vague, 

Argumentative (403), 

Foundation (602)

Re: [44:3-44:20]

Def Objection -

Relevance (401, 

402); Vague, 

Argumentative 

(403), Foundation 

(602)

OVERRULED

Re: [44:3-44:11]

701; assumes facts, 

misstates (611, 403); 

foundation (602)

Re: [44:13-44:20]

701; assumes facts, 

misstates (611, 403); 

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

44:18 - 44:20 Knauer, R. 2019-12-17

 44 18 A. I would not call it deceptive. I would

 44 19 call it maybe exaggeration. I would not write it --

 44 20 as a scientist, I would not write it that way.

Re: [44:3-44:20]

Def Objection - Relevance 

(401, 402); Vague, 

Argumentative (403), 

Foundation (602)

Re: [44:3-44:20]

Def Objection -

Relevance (401, 

402); Vague, 

Argumentative 

(403), Foundation 

(602)

OVERRULED

Re: [44:13-44:20]

701; assumes facts, 

misstates (611, 403); 

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

50:23 - 52:2 Knauer, R. 2019-12-17

 50 23 Q. Is there a way when you are testing people

 50 24 for an NRR that -- are there ways to kind of game the

 50 25 system or manipulate the system to alter what the

NRR

 51 1 results are?

 51 2 A. To game the system, I don't understand

 51 3 what you mean.

 51 4 Q. Are there ways that you can -- you can, I

 51 5 guess, massage the data to get a better NRR?

 51 6 A. If there are ways to do it, we would not

 51 7 do that.

 51 8 Q. Are there ways to do it?

 51 9 A. There -- there might -- there might be

 51 10 ways to do it, but we wouldn't do it.

 51 11 Q. What are some of the ways that there might

 51 12 be that you could do it?

 51 13 A. I'm not even sure. I never thought about

 51 14 massaging data, so...

 51 15 Q. Could -- is one of the ways you could do

 51 16 it, could you hand select certain people to be tested

 51 17 that you know from past experience get certain

 51 18 results?

 51 19 Is that one way?

 51 20 A. Certainly if certain individuals get

 51 21 better results on products, for whatever reason, and

Re: [50:23-51:14]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [51:15-52:2]

Def Objection - 3M MIL No. 

23, Relevance (401, 402), 

Prejudice (403)

Re: [50:23-51:14]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

Re: [51:15-52:2]

Def Objection -

3M MIL No. 23, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [51:25-52:8]

argumentative, vague (611, 

403); foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 8 of 320
Knauer, R. 2019-12-17 7

 51 22 showed consistency in results, the ability to hand

 51 23 select subjects could increase your chances of having

 51 24 a higher NRR.

 51 25 Q. So that would be one way that if a company

 52 1 wanted to massage the data, they could, I guess,

 52 2 cherry pick the people they test, true?

52:5 - 52:8 Knauer, R. 2019-12-17

 52 5 A. I -- I -- again, I wouldn't -- I mean,

 52 6 when you say -- when you call it "massage the data,"

 52 7 you -- you could pick subjects that are more -- get

 52 8 more consistent results.

Re: [52:5-52:8]

Def Objection - 3M MIL No. 

23, Relevance (401, 402), 

Prejudice (403)

Re: [52:5-52:8]

Def Objection -

3M MIL No. 23, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [51:25-52:8]

argumentative, vague (611, 

403); foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

52:24 - 54:8 Knauer, R. 2019-12-17

 52 24 Q. Mr. Knauer, I wanted to ask you, were you

 52 25 ever involved in the testing of earplugs and -- as the

 53 1 tests were going on, the REAT testing?

 53 2 A. When you say "involved," I'm just trying

 53 3 to understand your question.

 53 4 Q. Sure.

 53 5 A lot of times in these REAT test -- REAT,

 53 6 I'll call it REAT?

 53 7 A. Yes.

 53 8 Q. Tests, they would test, let's say, ten

 53 9 people, correct?

 53 10 A. If -- if you were doing an official REAT

 53 11 test, you test ten people, that's correct.

 53 12 Q. Okay. And would you ever get updates on

 53 13 how the testing was going before they got to ten

 53 14 people?

 53 15 A. Yes, sometimes I got updates, yes.

 53 16 Q. And why would you be given updates prior

 53 17 to the completion of ten people?

 53 18 A. Trying to understand what -- what the data

 53 19 was looking at -- like through X number of subjects,

 53 20 whatever number of subjects it was.

 53 21 Q. Did you all ever stop the testing before

 53 22 you got to ten because you didn't like what the NRR

 53 23 was looking like?

 53 24 A. We did on sometimes stop the testing if

 53 25 there was a -- if the project goal was to hit a

 54 1 certain number and we were not going to be close to it

 54 2 and it was apparent that we were not going to get

Re: [52:24-53:4]

Def Objection - Vague (403)

Re: [53:5-54:8]

Def Objection - 3M MIL No. 

18, Relevance (401, 402), 

Prejudice (403)

Re: [54:6-54:8]

Def Objection - 3M MIL No. 

18, Relevance (401, 402), 

Prejudice (403), Foundation 

(602); Vague (611, 402)

Re: [52:24-53:4]

Def Objection -

Vague (403)

OVERRULED

Re: [53:5-54:8]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [54:6-54:8]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602); Vague 

(611, 402)

OVERRULED

Re: [53:5-54:8]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [54:6-54:8]

Def Objection -

3M MIL No. 18, 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 9 of 320
Knauer, R. 2019-12-17 8

 54 3 there with doing ten people, there was lit -- nothing

 54 4 to be gained, nothing to be learned by continuing, so

 54 5 sometimes we did stop, yes.

 54 6 Q. Now, why is ten the magic number? Why --

 54 7 once you got to ten, did it trigger some sort of a --

 54 8 a duty by the company?

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602); Vague 

(611, 402)

OVERRULED

54:11 - 54:21 Knauer, R. 2019-12-17

 54 11 A. No. Ten -- ten is -- ten is what's called

 54 12 for in the ANSI standard, I believe, or the EPA

 54 13 regulation, one of them, so ten -- ten is the official

 54 14 test, but it just we -- we just took a look at the

 54 15 data and saw what the data was saying.

 54 16 BY MR. MONSOUR:

 54 17 Q. But -- but I guess if you did complete the

 54 18 test and you did ten people and the results were not

 54 19 what you had hoped for, is there a duty on the 

company

 54 20 to still report the testing since ten people were

 54 21 completed?

Re: [54:11-54:21]

Def Objection - 3M MIL No. 

18, Relevance (401, 402), 

Prejudice (403), Foundation 

(602)

Re: [54:17-55:1]

Def Objection - Foundation 

(602)

Re: [54:11-54:21]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

Re: [54:17-55:1]

Def Objection -

Foundation (602)

OVERRULED

Re: [54:11-54:21]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

Re: [54:17-55:1]

Def Objection -

Foundation (602)

OVERRULED

54:24 - 55:1 Knauer, R. 2019-12-17

 54 24 A. If the product -- if -- if ten people were

 54 25 tested and you came out with that product, then the

 55 1 duty would be to report that data.

Re: [54:17-55:1]

Def Objection - Foundation 

(602)

Re: [54:11-54:21]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

Re: [54:17-55:1]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 10 of 320
Knauer, R. 2019-12-17 9

55:3 - 55:4 Knauer, R. 2019-12-17

 55 3 Q. Okay. But if only eight people were

 55 4 tested, there is no duty to report it?

Re: [55:3-55:4]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [55:3-55:4]

Plt Objection -

Improper Counter 

Designation per 

PTO 64

OVERRULED

55:7 - 55:20 Knauer, R. 2019-12-17

 55 7 A. When you say "duty to report," if we stop

 55 8 testing for any reason, our process would be to go in

 55 9 and evaluate why -- evaluate, the best we can, why we

 55 10 were not hitting our goal, and that could be any

 55 11 number of reasons. A lot of my experience is in 

foam,

 55 12 so the foam is too soft, the foam is too hard,

 55 13 whatever, the recovery is too fast, the recovery is

 55 14 too slow. We would go in and evaluate what was the

 55 15 difficulty and identify the difficulty and correct the

 55 16 difficulty if we could, and then create a new --

 55 17 basically start again. It would be a new product. It

 55 18 would be something different because we would go in

 55 19 and make a change to the product or the instructions

 55 20 or whatever.

Re: [55:7-55:20]

Plt Objection - Improper 

Counter Designation per PTO 

64; nonresponsive

Re: [55:7-55:20]

Plt Objection -

Improper Counter 

Designation per 

PTO 64; 

nonresponsive

OVERRULED

55:22 - 56:3 Knauer, R. 2019-12-17

 55 22 Q. Okay. Let me ask you this, sir. Let's

 55 23 say you've got a product and you're doing NRR REAT

 55 24 testing on the product and after eight people it looks

 55 25 like you are not going to get the NRR you want.

 56 1 Is it okay to stop the testing and then

 56 2 just bring in a new panel and start the testing again?

 56 3 A. No, we would not do that.

Re: [55:22-56:3]

Def Objection - 3M MIL No. 

18, Relevance (401, 402), 

Prejudice (403), Foundation 

(602)

Re: [55:22-56:3]

Def Objection -

3M MIL No. 18, 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

56:4 - 56:25 Knauer, R. 2019-12-17

 56 4 Q. Okay. Why would you not do that?

 56 5 A. Because that's -- that's -- we wouldn't do

 56 6 that. That wasn't our policy, not to do that. Our --

 56 7 our policy is if we stopped after any number of

 56 8 subjects and tried to see would be -- determine why we

 56 9 are not hitting -- going to hit our goal.

 56 10 Q. Okay. Is it true, sir, that to have a new

 56 11 test started, you had to somehow change the product

 56 12 and then you could test it again?

 56 13 A. We would have to change something. In

 56 14 some instances it would be to change the product, or

 56 15 if we found it was an instruction problem, a user

Re: [56:4-56:25]

Plt Objection - 56:4-55:9 is 

proper clarification; 56:10-25 is 

improper per PTO 64

Re: [56:4-56:25]

Plt Objection -

56:4-55:9 is 

proper 

clarification; 

56:10-25 is 

improper per PTO 

64

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 11 of 320
Knauer, R. 2019-12-17 10

 56 16 instructions, we could change the instructions. It

 56 17 would have to be some significant change, we would -

-

 56 18 but we would evaluate it.

 56 19 That's, again, the scientific process,

 56 20 going through, seeing -- get -- doing a test, seeing

 56 21 what you see, go back, learn from that, make a 

change,

 56 22 whatever that change might be. And that's an

 56 23 iterative process, it may be five steps, in some

 56 24 instances it may be one step. It just depended upon

 56 25 the product.

63:3 - 63:23 Knauer, R. 2019-12-17

 63 3 Let me hand you what has been marked as

 63 4 Exhibit 7.

 63 5 (WHEREUPON, a certain document was

 63 6 marked Dick Knauer Deposition Exhibit

 63 7 No. 7, for identification, as of

 63 8 12/17/2019.)

 63 9 BY MR. MONSOUR:

 63 10 Q. I don't know if you've seen this before.

 63 11 Exhibit 7, do you know who a man by the

 63 12 name of Michael McLain is?

 63 13 A. Michael McLain, yes, I know who Michael

 63 14 McLain is.

 63 15 Q. And who is he?

 63 16 A. At -- at -- at that time he was president

 63 17 of the company.

 63 18 Q. Okay. If you will look, this is a letter

 63 19 from Michael McLain dated November 27, 2002, and 

this

 63 20 is a letter that is referencing Aearo's position

 63 21 regarding NRR testing.

 63 22 Do you see that?

 63 23 A. Yes.

Re: [63:3-63:23]

Def Objection - Foundation 

(602)

Re: [63:3-63:23]

Def Objection -

Foundation (602)

OVERRULED

64:13 - 64:14 Knauer, R. 2019-12-17

 64 13 Q. Was it important to your company that the

 64 14 advertising not to be misleading in any way?

Re: [64:13-64:14]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403)

Re: [64:13-64:14]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 12 of 320
Knauer, R. 2019-12-17 11

64:19 - 64:19 Knauer, R. 2019-12-17

 64 19 A. Of course it's important.

Re: [64:19-64:19]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403)

Re: [64:19-64:19]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

64:20 - 64:25 Knauer, R. 2019-12-17

 64 20 BY MR. MONSOUR:

 64 21 Q. You would never want to say that a product

 64 22 like the yellow end of the Combat Arms Earplug

 64 23 provided protection without impairment, you would

 64 24 never want to say that because that's not true,

 64 25 correct?

Re: [64:21-64:25]

Def Objection - Relevance 

(401, 402), Prejudice (403), 

Foundation (602)

Re: [64:21-64:25]

Def Objection -

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

65:3 - 65:4 Knauer, R. 2019-12-17

 65 3 A. I would -- I would prefer that it -- it

 65 4 say something in a little more general sense.

Re: [65:3-65:4]

Def Objection - Vague (403), 

Relevance (401, 402), Prejudice 

(403), Foundation (602)

Re: [65:3-65:4]

Def Objection -

Vague (403), 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

66:9 - 66:12 Knauer, R. 2019-12-17

 66 9 Q. Right. But if the company were to say

 66 10 that the yellow end of the plug allowed its users to

 66 11 hear without impairment, that would be misleading,

 66 12 true?

Re: [66:9-66:12]

Def Objection - Relevance 

(401, 402), Prejudice (403), 

Foundation (602)

Re: [66:9-66:12]

Def Objection -

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

Re: [66:9-66:18]

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

66:16 - 66:18 Knauer, R. 2019-12-17

 66 16 A. It -- it is. "Without impairment" is

 66 17 probably not scientifically absolutely correct. There

 66 18 is minor impairment.

Re: [66:16-66:18]

Def Objection - Relevance 

(401, 402), Prejudice (403), 

Foundation (602)

Re: [66:16-66:18]

Def Objection -

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

OVERRULED

Re: [66:9-66:18]

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

67:20 - 68:21 Knauer, R. 2019-12-17

 67 20 "Aearo supports that new products rated

 67 21 above the designated ceiling must receive that rating

 67 22 based on testing with an outside testing laboratory."

 67 23 Did I get that right?

 67 24 A. Yes.

 67 25 Q. Okay.

Re: [67:20-68:21]

Def Objection - Foundation 

(602)

Re: [67:20-68:21]

Def Objection -

Foundation (602)

OVERRULED

Re: [68:15-68:25]

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 13 of 320
Knauer, R. 2019-12-17 12

 68 1 "It goes without saying that Aearo

 68 2 supports that multiple testing attempts with the same

 68 3 product are not allowed because this is prohibited by

 68 4 the EPA."

 68 5 Did I get that right?

 68 6 A. Yes.

 68 7 Q. That's the question that I was asking you

 68 8 earlier. Do you remember that?

 68 9 A. Yes.

 68 10 Q. It goes on: "Further, when multiple tests

 68 11 are conducted, we must all agree and have EPA 

approval

 68 12 for the proper NRR labeling protocol."

 68 13 Did I get that right?

 68 14 A. Yes.

 68 15 Q. So let's go back and let's look at the

 68 16 second sentence in No. 3.

 68 17 "It goes without saying that Aearo

 68 18 supports that multiple testing attempts with the same

 68 19 product are not allowed because this is prohibited by

 68 20 the EPA."

 68 21 What does that mean?

68:24 - 69:3 Knauer, R. 2019-12-17

 68 24 A. What does that mean, I don't know what

 68 25 that means. I mean it -- I don't know what it means.

 69 1 BY MR. MONSOUR:

 69 2 Q. Does it mean that you can't just keep

 69 3 retesting a product to get the NRR you want?

Re: [68:24-69:3]

Def Objection - Foundation 

(602)

Re: [68:24-69:3]

Def Objection -

Foundation (602)

OVERRULED

Re: [68:15-68:25]

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

69:6 - 69:15 Knauer, R. 2019-12-17

 69 6 A. It means that you cannot just keep

 69 7 testing -- without making a change, without doing 

some

 69 8 modification, be it to the product, the design,

 69 9 formulation, instructions, whatever, something that

 69 10 affects how the plug is fitted into the ear, I -- I

 69 11 say plug, how the plug is fitted into the ear. You

 69 12 cannot just go in and test until you get the NRR that

 69 13 you desire.

 69 14 BY MR. MONSOUR:

 69 15 Q. Okay. Why is that important?

Re: [69:6-69:15]

Def Objection - Foundation 

(602)

Re: [69:6-69:15]

Def Objection -

Foundation (602)

OVERRULED

69:24 - 70:1 Knauer, R. 2019-12-17

 69 24 A. It's -- it's -- it's just a -- it -- you

Re: [69:24-70:1]

Def Objection - Foundation 

(602)

Re: [69:24-70:1]

Def Objection -

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 14 of 320
Knauer, R. 2019-12-17 13

 69 25 would -- just because it -- you need to -- you need to

 70 1 do a test and get the results that you get.

Foundation (602)

OVERRULED

70:15 - 70:19 Knauer, R. 2019-12-17

 70 15 Q. Okay. Because it's true that if a company

 70 16 wanted to massage the data, if they didn't get the NRR

 70 17 that they liked the first time, they could bring a

 70 18 different group in to test that had certain

 70 19 characteristics and maybe improve the NRRs, true?

Re: [70:15-71:1]

Def Objection - Argumentative, 

Vague (403), Prejudice (403), 

Foundation (602)

Re: [70:15-71:1]

Def Objection -

Argumentative, 

Vague (403), 

Prejudice (403), 

Foundation (602)

OVERRULED

Re: [70:15-71:1]

701; foundation (602); 

argumentative (611, 403)

OVERRULED; no 

new objection 

specific to 

McCombs.

70:22 - 71:1 Knauer, R. 2019-12-17

 70 22 A. If -- if you are asking could -- if you

 70 23 did not get the NRR you desired, could you hand pick

 70 24 subjects and then just test those subjects and get a

 70 25 higher NRR, that is -- that is within the range of

 71 1 possibilities, I guess.

Re: [70:15-71:1]

Def Objection - Argumentative, 

Vague (403), Prejudice (403), 

Foundation (602)

Re: [70:15-71:1]

Def Objection -

Argumentative, 

Vague (403), 

Prejudice (403), 

Foundation (602)

OVERRULED

Re: [70:15-71:1]

701; foundation (602); 

argumentative (611, 403)

OVERRULED; no 

new objection 

specific to 

McCombs.

75:2 - 75:8 Knauer, R. 2019-12-17

 75 2 Q. Let me hand you Exhibit No. 9, sir.

 75 3 A. Okay.

 75 4 Q. And what I would like for you to do is

 75 5 look at --

 75 6 MR. WASDIN: Is there a copy for me?

 75 7 MS. KROTTINGER: Yes. Sorry.

 75 8 BY MR. MONSOUR:

75:9 - 76:1 Knauer, R. 2019-12-17

 75 9 Q. This is an e-mail dated April 9, 1999, and

 75 10 it is from Doug Ohlin to Doug Ohlin. It says:

 75 11 "Letter for Combat Arms earplug." And immediately

 75 12 below that there is an e-mail from Brian Myers to 

Doug

 75 13 Ohlin.

 75 14 Do you see that?

 75 15 A. Yes, I see that.

 75 16 Q. And it says, they are talking about --

 75 17 they are talking about the Combat Arms Version 2

 75 18 earplug, correct?

 75 19 A. Yes, it look -- it appears that way, yes,

 75 20 sir.

 75 21 Q. And it says in the second paragraph, it

 75 22 says: "I spoke with Dick Knauer who believes that 

we

 75 23 can probably shorten the plug by 1/4" required to fit

 75 24 your current container."

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 15 of 320
Knauer, R. 2019-12-17 14

 75 25 Did I read that correctly?

 76 1 A. Yes.

76:2 - 76:21 Knauer, R. 2019-12-17

 76 2 Q. Do you remember speaking with Brian Myers

 76 3 about shortening the Combat Arms Earplug Version 2 

by

 76 4 a quarter of an inch?

 76 5 A. I have a memory that we did -- that I --

 76 6 that we were asked to shorten the plug, yes.

 76 7 Q. Okay. Good.

 76 8 How did it come up, do you remember?

 76 9 A. It came up, to the best of my memory, that

 76 10 when we provided samples to the military where the

 76 11 plug was longer, provided a -- I don't know how many

 76 12 samples, but we provided samples, and it may have 

been

 76 13 multiple samples multiple times, they did an

 76 14 evaluation of the product, and may have taken weeks,

 76 15 it may have taken months, I don't remember, but they

 76 16 came back with the evaluation and said, We like 

things

 76 17 about the product but we would like it a quarter inch

 76 18 shorter.

 76 19 Q. Okay. What went into the decision-making

 76 20 process of whether or not the original length of the

 76 21 plug could be shortened by a quarter of an inch?

76:24 - 78:3 Knauer, R. 2019-12-17

 76 24 A. What -- what went into the decision-making

 76 25 process, I don't understand your question.

 77 1 BY MR. MONSOUR:

 77 2 Q. It probably was an inartful question.

 77 3 What I'm trying to find out is, is what

 77 4 did you have to look at to determine whether or not

 77 5 the plug could be shortened by a quarter of an inch?

 77 6 A. Okay.

 77 7 Q. I'm -- I'm assuming that you came up or

 77 8 someone came up with the original length for some

 77 9 reason, you didn't just pick it out of the air, and

 77 10 then I'm assuming that there was a reason for the

 77 11 original length and then I'm assuming that somebody

 77 12 had to look at something to determine whether or not 

a

 77 13 quarter inch could have been taken off of it?

Re: [77:7-77:23]

Def Objection - Relevance 

(401, 402); Foundation (602)

Re: [77:24-78:3]

Def Objection - Misstates 

(403), Prejudice (403)

Re: [77:7-77:23]

Def Objection -

Relevance (401, 

402); Foundation 

(602)

OVERRULED

Re: [77:24-78:3]

Def Objection -

Misstates (403), 

Prejudice (403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 16 of 320
Knauer, R. 2019-12-17 15

 77 14 A. There -- there was a -- to answer your

 77 15 question then, there was a -- because of the

 77 16 manufacturing process of how that plug was

 77 17 manufactured, there was a concern about our ability to

 77 18 make a plug, if -- if you shorten the plug by a

 77 19 quarter of an inch, you basically then have no -- the

 77 20 stem is as -- ends at where the black flange ended as

 77 21 I remember, and trying to do that in -- in

 77 22 manufacturing, there were some manufacturing issues

 77 23 with that.

 77 24 Q. Okay. So the -- the decision whether or

 77 25 not the plug could be shortened by a quarter of an

 78 1 inch didn't necessarily have to do with the

 78 2 performance of the plug, it had more to do with

 78 3 production of the plug, am I close?

78:6 - 78:13 Knauer, R. 2019-12-17

 78 6 A. The -- the issue had to be with our

 78 7 capability to -- to manufacture a plug that had a --

 78 8 you know, that quarter inch taken off, yes.

 78 9 BY MR. MONSOUR:

 78 10 Q. Okay. So the thought process in whether

 78 11 or not the plug could be shortened a quarter inch, the

 78 12 thought process wasn't on would the plug perform, it

 78 13 was, can our machines make the plug?

Re: [78:6-78:13]

Def Objection - Misstates 

(403), Prejudice (403)

Re: [78:6-78:13]

Def Objection -

Misstates (403), 

Prejudice (403)

OVERRULED

78:16 - 79:11 Knauer, R. 2019-12-17

 78 16 A. The -- the question at this time was could

 78 17 we do that, and we could basically -- so we had to

 78 18 investigate whether we could do that. So the way we

 78 19 would do that would be to, at minimum, we could cut

 78 20 the end off, make some samples and send them to the

 78 21 Army and let them evaluate it and tell us what -- how

 78 22 the performance was.

 78 23 BY MR. MONSOUR:

 78 24 Q. Right. But I'm getting at -- it says: "I

 78 25 spoke with Dick Knauer who believes we can 

probably

 79 1 shorten the plug by the 1/4" required to fit your

 79 2 current container."

 79 3 When you made the decision that -- that

 79 4 the plug could be shortened by a quarter of an inch,

 79 5 were you looking at the capabilities of the plug or

 79 6 were you looking at the manufacturing process

 79 7 necessary to create the plug?

Re: [78:16-78:22]

Def Objection - Misstates 

(403), Prejudice (403)

Re: [78:16-78:22]

Def Objection -

Misstates (403), 

Prejudice (403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 17 of 320
Knauer, R. 2019-12-17 16

 79 8 A. We were looking at -- I -- I was

 79 9 specifically -- or Bob Falco was specifically looking

 79 10 at the capability of being able to manufacture a

 79 11 shorter plug.

80:17 - 80:21 Knauer, R. 2019-12-17

 80 17 Q. Who was the one, though, that came up with

 80 18 the -- the let's take two UltraFits, put them on two

 80 19 ends, we'll put a piece of plastic in the middle and

 80 20 we'll put a filter in there, who is the one that --

 80 21 who is the one that came up with that design?

Re: [80:17-80:21]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [80:17-80:21]

Plt Objection -

Improper Counter 

Designation per 

PTO 64

OVERRULED

80:24 - 81:17 Knauer, R. 2019-12-17

 80 24 A. When you asked who came up with the

 80 25 design, the feedback we got from the military after

 81 1 providing them with a single-ended stem, single-ended

 81 2 product, was we liked the concept, we would like

 81 3 something -- Doug Ohlin specifically, but it was the

 81 4 military in general, we -- we like the concept, but we

 81 5 would like it to have a double-ended plug to it.

 81 6 BY MR. MONSOUR:

 81 7 Q. Right. And so if Doug Ohlin says, We

 81 8 would like to have a double-ended to it, that product

 81 9 doesn't just appear, somebody has to literally design

 81 10 the product so you can make it, right?

 81 11 A. Basically, when he asked for that, we then

 81 12 went in and made up samples, however we made them 

up,

 81 13 and sent them to Doug, and it could have been two or

 81 14 three, I don't remember.

 81 15 Q. Okay.

 81 16 A. We sent samples to him, he said this is --

 81 17 this is good, this is bad, whatever.

Re: [80:24-81:17]

Plt Objection - Improper 

Counter Designation per PTO 

64

Re: [80:24-81:17]

Plt Objection -

Improper Counter 

Designation per 

PTO 64

OVERRULED

81:24 - 82:3 Knauer, R. 2019-12-17

 81 24 Q. Yeah. Yeah. Who -- who came up with the

 81 25 idea of how to put the -- the -- come up with this --

 82 1 if the military said we wanted a two-sided document,

 82 2 who is the one that came up with the design for the

 82 3 two sides?

82:6 - 82:17 Knauer, R. 2019-12-17

 82 6 A. To the best of my memory, what we did was

 82 7 we took the -- because we had the UltraFit tips, we

 82 8 took them and cut them down to certain lengths, put a

 82 9 filter in the adapter and put them together and sent

 82 10 them and said, Doug, is this what you want, is this

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 18 of 320
Knauer, R. 2019-12-17 17

 82 11 not what you want, that type of thing.

 82 12 Q. So who did that, was it you?

 82 13 A. No, it was not me.

 82 14 Q. Okay.

 82 15 A. The most likely person that had did -- had

 82 16 made the actual samples was Bob Falco, the design

 82 17 engineer.

83:10 - 83:15 Knauer, R. 2019-12-17

 83 10 Q. Okay. But for the simple premise, you --

 83 11 you understand that -- that triple flange plugs do

 83 12 come in more than one size, right?

 83 13 A. They can come in more than one size, yes.

 83 14 Q. Okay. How did the company arrive at this

 83 15 size for the Version 2 Combat Arms?

83:18 - 84:25 Knauer, R. 2019-12-17

 83 18 A. How did they determine that that size for

 83 19 the Combat Arms?

 83 20 BY MR. MONSOUR:

 83 21 Q. Uh-huh.

 83 22 A. The company basically made the UltraFit

 83 23 earplug and -- and did since I believe the early --

 83 24 excuse me -- mid '80s.

 83 25 Q. Okay.

 84 1 A. They came out -- came out with the

 84 2 UltraFit earplug, and field experience, feedback from

 84 3 end users, indicated that that product, the UltraFit,

 84 4 fit almost everyone, no -- no product fits everybody.

 84 5 There are people that have very small ear canals, very

 84 6 large ear canals. That product fit the vast majority

 84 7 of the population. So the design was a good design to

 84 8 fit a lot of people, the vast majority of the

 84 9 population.

 84 10 Q. Okay. So is this -- the UltraFit was a

 84 11 one-size product, correct?

 84 12 A. The UltraFit was a one-size product with a

 84 13 longer stem, yes.

 84 14 Q. Okay. Is the Version 2 the exact same

 84 15 size as the UltraFit?

 84 16 A. To the best of my memory, the UltraFit --

 84 17 the -- excuse me. Let me -- let me take a step back.

 84 18 To the best of my memory, the Combat

 84 19 Arms 2 version uses the same size flanges, of course

 84 20 the stem is shorter, but the flanges are the same as

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 19 of 320
Knauer, R. 2019-12-17 18

 84 21 they were in the UltraFit, to the best of my memory.

 84 22 Q. Okay. So literally you took the existing

 84 23 UltraFits that you had, you kind of stuck them

 84 24 together with the piece of plastic and that's the

 84 25 Version 2, and you added a filter?

85:3 - 85:5 Knauer, R. 2019-12-17

 85 3 A. We -- we -- we took those -- those items

 85 4 and that eventually became the Combat Arms product,

 85 5 yes.

87:9 - 87:23 Knauer, R. 2019-12-17

 87 9 Q. Okay. Let me hand you what I'll mark as

 87 10 Exhibit 10.

87:11 - 87:23 Knauer, R. 2019-12-17

 87 11 (WHEREUPON, a certain document was

 87 12 marked Dick Knauer Deposition Exhibit

 87 13 No. 10, for identification, as of

 87 14 12/17/2019.)

 87 15 BY MR. MONSOUR:

 87 16 Q. This is Exhibit 10. It is entitled How

 87 17 Folding the Flanges Back Affects REAT Results of 

the

 87 18 UltraFit Earplug End of the Combat Arms Plug.

 87 19 Do you see that?

 87 20 A. Yes, I see that.

 87 21 Q. And it is dated July 10th of 2000.

 87 22 Do you see that?

 87 23 A. Yes, I see that.

Re: [87:9-87:23]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [87:9-87:23]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

87:24 - 88:3 Knauer, R. 2019-12-17

 87 24 Q. Have you ever seen this document before

 87 25 today?

 88 1 A. Back to my original comment, I -- when I

 88 2 was employed at Aearo and 3M, I do not remember 

seeing

 88 3 this document.

90:3 - 90:22 Knauer, R. 2019-12-17

 90 3 Q. And the document states under the

 90 4 Introduction, it says: "The Combat Arms Earplug was

 90 5 shortened, at the request of the Army, so that it

 90 6 would fit into a carrying case. Because of this, the

 90 7 plug is shorter than any other UltraFit Plug design.

 90 8 The purpose of this report is to document that the

 90 9 current length of the UltraFit earplug end of the

 90 10 Combat Arms plug is too short for proper insertion 

Re: [90:3-90:22]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [90:3-90:22]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 20 of 320
Knauer, R. 2019-12-17 19

and

 90 11 how changing the fitting technique affected the

 90 12 results of real-ear tests of this plug."

 90 13 Did I get that right?

 90 14 A. Yes, you read that correctly.

 90 15 Q. Do you agree with the statement that the

 90 16 current length of the UltraFit earplug end of the

 90 17 Combat Arms plug is too short for proper insertion?

 90 18 Do you agree with that statement?

 90 19 MR. WASDIN: Objection to foundation.

 90 20 BY THE WITNESS:

 90 21 A. I agree with that, without changing the

 90 22 fitting instructions.

95:6 - 95:13 Knauer, R. 2019-12-17

 95 6 Q. Okay. Would it be concerning if you're

 95 7 testing a Combat Arms Version 2 plug and you've got

 95 8 the UltraFit that you used to make the Version 2 plug,

 95 9 correct?

 95 10 A. Correct.

 95 11 Q. If you know the UltraFit typically is

 95 12 getting you a 21 NRR, is it concerning when testing 

of

 95 13 the Version 2 shows a 10.9 NRR?

Re: [95:6-95:13]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [95:6-95:13]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

95:16 - 95:18 Knauer, R. 2019-12-17

 95 16 A. The -- if you saw results like that, you

 95 17 would believe that something -- you needed to go in

 95 18 and try to figure out what's happening.

Re: [95:16-95:18]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [95:16-95:18]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

98:7 - 98:8 Knauer, R. 2019-12-17

 98 7 Q. Do you consider imperceptible loosening of

 98 8 a plug to be a problem?

Re: [98:7-99:1]

Def Objection - Foundation 

(602), Relevance (401, 402),

Prejudice (403)

Re: [98:7-99:1]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

98:11 - 99:3 Knauer, R. 2019-12-17

 98 11 A. I don't know what imperceptible -- I'm

 98 12 sorry -- I don't know what that terminology means.

 98 13 That was Mr. Kieper's or -- and/or Mr. Berger term.

 98 14 I -- I'm not sure what imperceptible means.

 98 15 Q. You -- you do not know what imperceptible

Re: [98:7-99:1]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [99:2-99:8]

Def Objection - Vague (403, 

Re: [98:7-99:1]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 21 of 320
Knauer, R. 2019-12-17 20

 98 16 means?

 98 17 A. I -- well, I know what imperceptible

 98 18 means. I don't know what they meant by this.

 98 19 Q. Do you know what the term "loosened"

 98 20 means?

 98 21 A. Loosened, yes.

 98 22 Q. Okay. So if a plug is -- if you know what

 98 23 imperceptible means and you know what loosened 

means

 98 24 and you know what an ear -- you know what an 

earplug

 98 25 is, correct?

 99 1 A. That is correct.

 99 2 Q. If an earplug imperceptibly loosens, would

 99 3 that be a problem with the plug?

611); Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

(403)

OVERRULED

Re: [99:2-99:8]

Def Objection -

Vague (403, 611); 

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED AS 

TO 

“imperceptibly.” 

OVERRULED 

in all other 

respects.

99:6 - 99:8 Knauer, R. 2019-12-17

 99 6 A. If a earplug loosened, there is certainly

 99 7 something that is going on and you need to understand

 99 8 what is going on.

Re: [99:2-99:8]

Def Objection - Vague (403, 

611); Foundation (602), 

Relevance (401, 402), Prejudice 

(403)

Re: [99:2-99:8]

Def Objection -

Vague (403, 611); 

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED AS 

TO 

“imperceptibly.” 

OVERRULED 

in all other 

respects.

102:22 - 103:18 Knauer, R. 2019-12-17

 102 22 Q. What -- what material are these flanges

 102 23 made out of?

 102 24 A. It's a thermoplastic elastomer.

 102 25 Q. Do you know why the plastic piece in the

 103 1 middle, and I'm looking at it right here, I'm folding

 103 2 back both flanges, if we could look.

 103 3 Do you know why this -- do you see the

 103 4 piece I'm pointing to?

 103 5 A. Yes, yes.

 103 6 Q. The -- the -- the white piece?

 103 7 A. Um-hum.

 103 8 Q. How did you all determine how hard that --

 103 9 that white piece of plastic should be?

 103 10 A. I have no memory at all what -- how that

Re: [103:15-103:24]

Def Objection - Foundation 

(602)

Re: [103:15-

103:24]

Def Objection -

Foundation (602)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 22 of 320
Knauer, R. 2019-12-17 21

 103 11 was decided.

 103 12 Q. Was there any testing that was done to

 103 13 determine how hard that should be?

 103 14 A. I have no memory of that. I'm sorry.

 103 15 Q. Are there -- are there other options for

 103 16 the -- the white piece in the middle? Could -- could

 103 17 your company have made a -- the plastic piece more

 103 18 pliable?

103:21 - 103:24 Knauer, R. 2019-12-17

 103 21 A. I -- we -- I have no i- -- I mean, could

 103 22 it have been made more, possibly, by why we made it

 103 23 that, I don't know, we made it that and provided

 103 24 samples and we are happy with it.

Re: [103:15-103:24]

Def Objection - Foundation 

(602)

Re: [103:15-

103:24]

Def Objection -

Foundation (602)

OVERRULED

105:11 - 105:25 Knauer, R. 2019-12-17

 105 11 Q. If you had been asked whether or not you

 105 12 could share the test data from Test 213015 with the

 105 13 government, would you have said sure, why not?

 105 14 A. Yes, I would have shared it.

 105 15 Q. Can you think of any reason why the test

 105 16 data from 213015 shouldn't have been shared with 

the

 105 17 government?

 105 18 A. No, I can think of no reason.

 105 19 Q. Again, one of the things that we look from

 105 20 an earlier page is the fact that Mr. Kieper is noting

 105 21 that there is imperceptible loosening, correct?

 105 22 A. Mr. Kieper noted that, yes.

 105 23 Q. The fact that there is imperceptible

 105 24 loosening with the plug, that's important, true?

 105 25 A. Cor- --

Re: [105:11-105:18]

Def Objection - Speculation, 

Foundation (602), Relevance 

(401, 402), Prejudice (403)

Re: [105:19-105:25]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [105:11-

105:18]

Def Objection -

Speculation, 

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [105:19-

105:25]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

106:2 - 106:8 Knauer, R. 2019-12-17

 106 2 BY THE WITNESS:

 106 3 A. Certainly he made that observation, so

 106 4 it's important information.

 106 5 BY MR. MONSOUR:

 106 6 Q. Since it's important information that he

 106 7 observed, is that the type of information that should

 106 8 have been shared with the government?

Re: [106:2-106:8]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [106:2-106:8]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

106:10 - 106:18 Knauer, R. 2019-12-17

 106 10 BY THE WITNESS:

 106 11 A. I don't know what was shared or could have

 106 12 been shared. I don't know what was done.

 106 13 BY MR. MONSOUR:

Re: [106:10-106:18]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [106:10-

106:18]

Def Objection -

Foundation (602), 

Relevance (401, 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 23 of 320
Knauer, R. 2019-12-17 22

 106 14 Q. It -- that's not my question.

 106 15 My question was: Should it have been

 106 16 shared --

 106 17 A. It --

 106 18 Q. -- with the government?

402), Prejudice 

(403)

OVERRULED

106:20 - 107:8 Knauer, R. 2019-12-17

 106 20 BY THE WITNESS:

 106 21 A. It -- it was -- that -- that would be a --

 106 22 a call that an Elliott Berger would make.

106:23 - 107:8 Knauer, R. 2019-12-17

 106 23 BY MR. MONSOUR:

 106 24 Q. Okay. If this flange report had been

 106 25 shared with you, would you have shared the fact that

 107 1 there was imperceptible loosening with the 

government?

 107 2 A. It wasn't shared with me, as -- as I -- as

 107 3 I remembered.

 107 4 Q. But my point is: Had it been shared with

 107 5 you and if you were the government contact or the

 107 6 person that had contact with the government, would 

you

 107 7 have shared the imper- -- imperceptible loosening fact

 107 8 with the government?

Re: [106:20-107:8]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [106:20-

107:8]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED

107:11 - 107:13 Knauer, R. 2019-12-17

 107 11 A. If I'm asked if I would share, I would --

 107 12 I believe in transparency in providing information.

 107 13 BY MR. MONSOUR:

Re: [107:11-107:15]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [107:11-

107:15]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

DESIGNATION 

WITHDRAWN 

[107:14-15], 

3/13/2021 

SUSTAINED as 

to [107:11-13]

108:23 - 109:18 Knauer, R. 2019-12-17

 108 23 A. We -- we -- we talked and we've talked

 108 24 about imp- -- you know, imp- -- we talked about

 108 25 imperceptibly loosening as being a factor that is

 109 1 important, yes.

 109 2 Q. Okay. And you know who the end users are

 109 3 of these earplugs, the Combat Arms Earplugs Version 

Re: [108:23-109:18]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [109:14-109:25]

Def Objection - Argumentative, 

Re: [108:23-

109:18]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 24 of 320
Knauer, R. 2019-12-17 23

2,

 109 4 correct?

 109 5 A. Yes.

 109 6 Q. They are our soldiers, correct?

 109 7 A. Absolutely, yes.

 109 8 Q. A pretty worthy group of people to have

 109 9 information shared with on their behalf, true?

 109 10 A. Obviously, the soldiers are somebody that

 109 11 deserve all of the benefit, everything that we can

 109 12 tell them, yes.

 109 13 Q. Sure.

 109 14 So knowing that they are a very deserving

 109 15 group and knowing that imperceptible loosening is

 109 16 important, had you been made aware of

imperceptible

 109 17 loosening in 2000, you would have shared that with 

the

 109 18 government, true?

Vague (403, 611); Relevance 

(401, 402)

(403)

SUSTAINED

Re: [109:14-

109:25]

Def Objection -

Argumentative, 

Vague (403, 611); 

Relevance (401, 

402)

SUSTAINED

Re: [108:23-

109:18]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED

Re: [109:14-

109:25]

Def Objection -

Argumentative, 

Vague (403, 611); 

Relevance (401, 

402)

SUSTAINED

Re: [109:21-

109:25]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED

109:21 - 109:25 Knauer, R. 2019-12-17

 109 21 A. Again, I would need to understand what

 109 22 the -- what he meant by imperceptibly loosening,

 109 23 depending upon what he meant, then, yes, we'll share

 109 24 it, absolutely if it is something -- if it is a real

 109 25 observation.

Re: [109:14-109:25]

Def Objection - Argumentative,

Vague (403, 611); Relevance 

(401, 402)

Re: [109:21-109:25]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [108:23-

109:18]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED

Re: [109:14-

109:25]

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 25 of 320
Knauer, R. 2019-12-17 24

Def Objection -

Argumentative, 

Vague (403, 611); 

Relevance (401, 

402)

SUSTAINED

Re: [109:21-

109:25]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED

Re: [109:14-

109:25]

Def Objection -

Argumentative, 

Vague (403, 611); 

Relevance (401, 

402)

SUSTAINED

Re: [109:21-

109:25]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

SUSTAINED

114:14 - 115:5 Knauer, R. 2019-12-17

 114 14 Q. Let me hand you what I've marked as

 114 15 Exhibit 11. It is a very short e-mail. And it is an

 114 16 e-mail from Elliott Berger to Brian Myers.

 114 17 And it says: "Here are the data on the

 114 18 UltraFit end of the Combat Arms. Note the original

 114 19 study was stopped with eight subjects. The second

 114 20 study was with the folded-back flanges on the end

 114 21 sticking out of the ear. Should I share this with

 114 22 Ohlin? It looks like the existing product has

 114 23 problems unless the user instructions are revised."

 114 24 Do you see that?

 114 25 A. Yes, I see that.

 115 1 Q. Did I read it correctly?

Re: [114:14-115:5]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [114:14-

115:5]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [115:3-115:9]

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 26 of 320
Knauer, R. 2019-12-17 25

 115 2 A. Yes.

 115 3 Q. Why would Elliott Berger be talking with

 115 4 Brian Myers about whether important data from the

 115 5 Combat Arms earplugs should be shared with Doug 

Ohlin?

115:8 - 115:9 Knauer, R. 2019-12-17

 115 8 A. Again, I don't know. I -- I have no -- I

 115 9 don't know why he sent that e-mail.

Re: [115:8-115:9]

Def Objection - Foundation 

(602), Relevance (401, 402), 

Prejudice (403)

Re: [115:8-115:9]

Def Objection -

Foundation (602), 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [115:3-115:9]

foundation (602)

OVERRULED; no 

new objection 

specific to 

McCombs.

131:5 - 131:8 Knauer, R. 2019-12-17

 131 5 (WHEREUPON, a certain document was

 131 6 marked Dick Knauer Deposition Exhibit

 131 7 No. 13, for identification, as of

 131 8 12/17/2019.)

131:15 - 131:23 Knauer, R. 2019-12-17

 131 15 Q. All right. So if we could look at

 131 16 Exhibit 13, this is a memo from Elliott Berger to

 131 17 Brian Myers, February 1st, 2000.

 131 18 Do you see that?

 131 19 A. Yes.

 131 20 Q. Okay. And, again, Elliott Berger here is

 131 21 reporting to Brian Myers who was the marketing 

manager

 131 22 at Aearo at the time, right?

 131 23 A. That's correct.

133:5 - 133:25 Knauer, R. 2019-12-17

 133 5 There is another section, UltraFit end of

 133 6 the Combat Arms Plug.

 133 7 Do you see that?

 133 8 A. Yes.

 133 9 Q. That's talking about the '015 study that

 133 10 was mentioned in the flange report, right?

 133 11 A. Yes, I believe so.

 133 12 Q. And so in this report, Berger is reporting

 133 13 to Myers, Stopped after eight subjects, right?

 133 14 A. That's what he says, yes.

 133 15 Q. NRR 11, right?

 133 16 A. That's what it says, yes.

 133 17 Q. "A new test will begin because it appears

 133 18 there is a learning effect as the experimenter better

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 27 of 320
Knauer, R. 2019-12-17 26

 133 19 understands how to insert this unusual earplug."

 133 20 Do you see that?

 133 21 A. Yes.

 133 22 Q. Do you -- did anyone tell you at the time

 133 23 they were doing this testing that the lab believed

 133 24 that this plug, this Combat Arms plug, was an 

unusual

 133 25 plug?

134:1 - 134:1 Knauer, R. 2019-12-17

 134 1 A. I don't remember.

136:4 - 136:12 Knauer, R. 2019-12-17

 136 4 Q. All right. So this report was to Brian

 136 5 Myers, the marketing manager, in February of 2000.

 136 6 Did -- do you have a recollection of the

 136 7 lab being subject to audit?

 136 8 A. Subject to audit, they -- they did a

 136 9 accreditation that I remember the -- with NVLAP. I

 136 10 believe it was every two years, every two or three

 136 11 years. That I remember. There might have been an

 136 12 audit and I'm not remembering that.

136:17 - 137:5 Knauer, R. 2019-12-17

 136 17 (WHEREUPON, a certain document was

 136 18 marked Dick Knauer Deposition Exhibit

 136 19 No. 14, for identification, as of

 136 20 12/17/2019.)

 136 21 BY MR. OVERHOLTZ:

 136 22 Q. So this is a report a year -- a year

 136 23 later, a little more than a year later from July 5th,

 136 24 2001.

 136 25 Do you see that?

 137 1 A. Yes.

 137 2 Q. Okay. So we are looking at Exhibit 14 and

 137 3 this is a June Monthly Report from Elliott Berger to

 137 4 Richard Knauer, July 5th, 2001, right?

 137 5 A. That's correct.

137:21 - 138:5 Knauer, R. 2019-12-17

 137 21 BY MR. OVERHOLTZ:

 137 22 Q. So -- so you have the lab over here,

 137 23 right, and the lab -- and the lab, we have Dick Knauer

 137 24 is the technical director, right?

 137 25 A. That's correct.

 138 1 Q. And then we have Elliott Berger, and he

 138 2 was a senior director in the lab?

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 28 of 320
Knauer, R. 2019-12-17 27

 138 3 A. I don't remember what his title was.

 138 4 Q. Okay. He -- he ran the testing?

 138 5 A. He ran the testing.

138:18 - 139:4 Knauer, R. 2019-12-17

 138 18 Q. The marketing side, and Brian Myers is the

 138 19 marketing director, right, marketing manager?

 138 20 A. Yes.

 138 21 Q. Do you recall there -- anyone raising a

 138 22 question as to whether or not it's a problem if the

 138 23 guy running the testing, Elliott Berger, is reporting

 138 24 to a marketing manager at the company?

 138 25 Do you recall that ever being a problem?

 139 1 A. I don't ever recall anyone ever discussing

 139 2 that as a problem, no.

 139 3 Q. Did anyone ever say that this could be

 139 4 a -- this could cause a conflict of interest?

139:7 - 139:16 Knauer, R. 2019-12-17

 139 7 A. I had never heard that raised, no.

 139 8 BY MR. OVERHOLTZ:

 139 9 Q. Okay. Do you -- do you know what a

 139 10 conflict of interest is?

 139 11 A. Yes, yes, I understand.

 139 12 Q. And what's a conflict of interest?

 139 13 A. A conflict of interest, in my

 139 14 understanding, is if someone is working on 

something

 139 15 that -- that because of who they report to could

 139 16 affect the decision-making process.

139:17 - 139:21 Knauer, R. 2019-12-17

 139 17 Q. Okay. And so gentle might -- could it be

 139 18 a conflict of interest if marketing wants the lab to

 139 19 report better results for their plug, exaggerate the

 139 20 plug's capabilities even when the testing doesn't

 139 21 support it?

Re: [139:17-139:21]

Improper Counter 

Designation per PTO 64, 

403, Noneresponsive 

SUSTAINED

139:24 - 140:2 Knauer, R. 2019-12-17

 139 24 A. First of all, Elliott Berger is an

 139 25 extremely reputable individual, someone who will 

not

 140 1 compromise, and he will report the results that he

 140 2 gets, or always did report the results that he got.

Re: [139:24-140:2]

Improper Counter 

Designation per PTO 64, 

403, Noneresponsive 

SUSTAINED

140:24 - 141:3 Knauer, R. 2019-12-17

 140 24 Q. All right. So if we could go back to

 140 25 Exhibit 14, which is this audit, I have it up on the

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 29 of 320
Knauer, R. 2019-12-17 28

 141 1 screen now. This is that June 5th, 2001 report to you

 141 2 now?

 141 3 A. Yes.

141:15 - 141:22 Knauer, R. 2019-12-17

 141 15 Q. "Subsequent to the audit, the policy

 141 16 manual and other documentation were revised to 

bring

 141 17 them up to the new NVLAP requirements."

 141 18 Do you see that?

 141 19 A. Yes.

 141 20 Q. Okay. Do you recall what changes were --

 141 21 were required by the NVLAP audit to be made?

 141 22 A. No.

142:3 - 142:13 Knauer, R. 2019-12-17

 142 3 (WHEREUPON, a certain document was

 142 4 marked Dick Knauer Deposition Exhibit

 142 5 No. 15, for identification, as of

 142 6 12/17/2019.)

 142 7 BY MR. OVERHOLTZ:

 142 8 Q. So this is about a month after that report

 142 9 that we just read, and it's a -- Exhibit 15 is a

 142 10 letter to Carroll Brickenkamp on August 1st, 2001,

 142 11 Program Manager, NVLAP.

 142 12 Do you see that?

 142 13 A. Yes.

144:15 - 145:4 Knauer, R. 2019-12-17

 144 15 Q. P1, C1, 4.1.4. It says: "The department

 144 16 in which the E-A-RCAL Laboratory now reports was

 144 17 changed shortly after the audit."

 144 18 Did I get that right?

 144 19 A. If that's what it says, yes, sir.

 144 20 Q. Okay. "We now report in through a

 144 21 technical group instead of marketing as the revised

 144 22 organizational chart now indicates."

 144 23 Do you see that?

 144 24 A. Yes.

 144 25 Q. So after this audit in 2001, the reporting

 145 1 was changed in the lab and now the lab testing is

 145 2 going to report through a technical group and not to

 145 3 Brian Myers in marketing.

 145 4 That's how it is supposed to be, right?

Re: [145:4-145:8]

argumentative (611, 403); 

foundation (602)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 30 of 320
Knauer, R. 2019-12-17 29

145:7 - 145:9 Knauer, R. 2019-12-17

 145 7 A. That's what I'm -- that's -- would be an

 145 8 interpretation of this, yes.

 145 9 BY MR. OVERHOLTZ:

Re: [145:4-145:8]

argumentative (611, 403); 

foundation (602)

OVERRULED

146:23 - 147:1 Knauer, R. 2019-12-17

 146 23 Q. Okay. This change that was made after the

 146 24 2001 NVLAP audit to now report through the 

technical

 146 25 group and not to marketing, do you believe that 

change

 147 1 was made to avoid this conflict of interest?

Re: [146:23-147:6]

foundation (602)

SUSTAINED

147:4 - 147:6 Knauer, R. 2019-12-17

 147 4 A. I do not know why the change was made. I

 147 5 don't believe it had anything to do with that, but I

 147 6 don't know that.

Re: [146:23-147:6]

foundation (602)

SUSTAINED

147:9 - 147:12 Knauer, R. 2019-12-17

 147 9 (WHEREUPON, a certain document was

 147 10 marked Dick Knauer Deposition Exhibit

 147 11 No. 16, for identification, as of

 147 12 12/17/2019.)

147:25 - 148:4 Knauer, R. 2019-12-17

 147 25 Q. Okay. And so if we look at this, Page 1,

 148 1 the topic -- the title of Exhibit 16 is: "Annotations

 148 2 from EAR checklist with assessment annotations.pdf."

 148 3 Do you see that?

 148 4 A. Yes.

148:5 - 148:6 Knauer, R. 2019-12-17

 148 5 Q. Do you recall this document at all?

 148 6 A. No.

148:7 - 148:10 Knauer, R. 2019-12-17

 148 7 Q. Okay. "Annotation 1; Label: Jeff G.

 148 8 Schmitt; Date: 6/13/2001."

 148 9 Do you see that?

 148 10 A. Yes.

148:11 - 148:12 Knauer, R. 2019-12-17

 148 11 Q. Do you remember who Jeff Schmitt was?

 148 12 A. No.

148:21 - 149:6 Knauer, R. 2019-12-17

 148 21 Q. Okay. And just so we're clear, the next

 148 22 section says: "C1 4.1.4."

 148 23 Do you see that?

 148 24 A. Yes.

 148 25 Q. And if we look back at the last exhibit,

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 31 of 320
Knauer, R. 2019-12-17 30

 149 1 that reference we made to the change referenced that

 149 2 same section, and -- is that agreeable, to pull that

 149 3 up, just so we can see that these two sections are the

 149 4 same.

 149 5 And you can look and tell me if you agree?

 149 6 A. It references "C1 4.1.4," "C1 4.1.4."

149:11 - 149:21 Knauer, R. 2019-12-17

 149 11 Q. Okay. It says -- now, if we go back to

 149 12 Exhibit 16 now, this Annotation 1, it says: "The org

 149 13 chart of 12/1/2000 shows the lab director reporting

 149 14 through a marketing manager."

 149 15 Do you see that?

 149 16 A. Yes.

 149 17 Q. "While this is acceptable on a business

 149 18 management basis, this creates a potential for a

 149 19 conflict of interest at the laboratory testing level."

 149 20 Do you see that?

 149 21 A. I do. I can read that, yes.

150:3 - 150:4 Knauer, R. 2019-12-17

 150 3 Q. Do you agree that there was at least a

 150 4 potential for a conflict of interest because of this?

Re: [150:3-150:4]

Improper Counter 

Designation per PTO 64

OVERRULED

150:7 - 150:8 Knauer, R. 2019-12-17

 150 7 A. I -- I -- I don't -- no, I don't agree. A

 150 8 conflict of interest did not exist.

Re: [150:7-150:8]

Improper Counter 

Designation per PTO 64

OVERRULED

150:10 - 150:19 Knauer, R. 2019-12-17

 150 10 Q. Okay. So if we go back to the exhibit:

 150 11 "Laboratory management indicates that no such

 150 12 conflicts have been experienced in the past and that

 150 13 it has access to upper management levels such" --

 150 14 "should such conflicts arise in the future."

 150 15 Do you see that?

 150 16 A. Yes.

 150 17 Q. So laboratory management, that would have

 150 18 been you and Elliott Berger, right?

 150 19 A. That is correct.

151:6 - 151:9 Knauer, R. 2019-12-17

 151 6 Q. The -- now, when that statement was made

 151 7 to the NVLAP auditors, you were aware that the 

company

 151 8 had to pay a $900,000 fine because they were using 

NRR

 151 9 ratings on their plugs that were overstated, right?

Re: [151:6-151:13]

3M MIL No. 8

SUSTAINED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 32 of 320
Knauer, R. 2019-12-17 31

151:12 - 151:20 Knauer, R. 2019-12-17

 151 12 A. I had heard that they had -- had paid a

 151 13 fine, yes.

 151 14 BY MR. OVERHOLTZ:

 151 15 Q. And it was related to the reporting of

 151 16 NRRs on the labeling of earplugs, right?

 151 17 A. Something was related to the -- yes.

 151 18 Q. And wasn't it marketing who decided to put

 151 19 that higher NRR on the labeling?

 151 20 A. That decision --

Re: [151:6-151:13]

3M MIL No. 8

Re: [151:18-151:25]

foundation (602)

SUSTAINED

151:22 - 151:25 Knauer, R. 2019-12-17

 151 22 BY THE WITNESS:

 151 23 A. I'm not aware of who made the decision.

 151 24 That decision was made before I was in the technical

 151 25 management area.

Re: [151:18-151:25]

foundation (602)

SUSTAINED

153:17 - 153:20 Knauer, R. 2019-12-17

 153 17 (WHEREUPON, a certain document was

 153 18 marked Dick Knauer Deposition Exhibit

 153 19 No. 18, for identification, as of

 153 20 12/17/2019.)

154:9 - 154:24 Knauer, R. 2019-12-17

 154 9 Q. So if we can look at Exhibit 18, it is

 154 10 a -- one month later from the last monthly report we

 154 11 looked at, Elliott Berger to Richard Knauer,

 154 12 August 1st, 2001, the July Monthly Report.

 154 13 Do you see that?

 154 14 A. Yes.

 154 15 Q. Okay. And if we go down, there is another

 154 16 section regarding NVLAP.

 154 17 Do you see that?

 154 18 A. Yes.

 154 19 Q. And it says: "Finalized the update to the

 154 20 E-A-RCAL policy manual and prepared a response to

 154 21 NVLAP re issues that required resolution as a result

 154 22 of the June audit of our lab."

 154 23 Do you see that?

 154 24 A. Yes.

156:6 - 156:9 Knauer, R. 2019-12-17

 156 6 Q. Okay. There is a section called

 156 7 Facilities/Equipment/Calibration.

 156 8 Do you see that?

 156 9 A. Yes.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 33 of 320
Knauer, R. 2019-12-17 32

156:10 - 156:15 Knauer, R. 2019-12-17

 156 10 Q. Okay. It says: "The primary audiometer

 156 11 (SN 1919) has returned from being repaired by

 156 12 Grason-Stadler."

 156 13 That's one of the devices that's used in

 156 14 the lab, is that right?

 156 15 A. I believe so.

Re: [156:10-156:15]

Improper Counter 

Designation per PTO 64

SUSTAINED

156:16 - 156:20 Knauer, R. 2019-12-17

 156 16 Q. Okay. It then says: "The one of the two

 156 17 Etymotic Research ARCs, used in Mexico, was 

calibrated

 156 18 and returned to Bob Zielinski."

 156 19 Do you see that?

 156 20 A. Yes.

157:23 - 158:19 Knauer, R. 2019-12-17

 157 23 Q. This -- this is -- this is a device that's

 157 24 used to measure acoustic resistance, is that right?

 157 25 A. I remember there was a device that

 158 1 measured acoustic resistance, so, yes, that sounds

 158 2 like an acoustic resistance test, yes.

 158 3 Q. Okay. Do you recall there being a trouble

 158 4 with the plugs, the Combat Arms plugs being

 158 5 manufactured in Mexico back in 2001?

 158 6 A. I don't re -- recall any trouble

 158 7 manufacturing, manufacturing problems sometimes 

occur,

 158 8 but I don't recall any.

 158 9 Q. Who was Bob Zielinski?

 158 10 A. Bob Zielinski was the Aearo, I'll call him

 158 11 operations manager for -- I don't know what his title

 158 12 was, but operations individual that oversaw, amongst

 158 13 other things, hand assembly products, as I remember.

 158 14 Q. So if -- do you recall going down to

 158 15 Mexico to see the place where the Combat Arms 

plugs

 158 16 were being made?

 158 17 A. I did not go down to Mexico, no.

 158 18 Q. You know they were made in Mexico, though?

 158 19 A. Yes, I did know that.

Re: [158:3-158:8]

3M MIL No. 26; 

foundation (602)

OVERRULED

158:25 - 159:9 Knauer, R. 2019-12-17

 158 25 Q. Okay. What part of the plug did the

 159 1 Mexico company make?

 159 2 A. The Mexico company, as I remember it, got

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 34 of 320
Knauer, R. 2019-12-17 33

 159 3 the individual separate parts, assembled those

 159 4 together, and then used this ARC device to ensure that

 159 5 the nonlinear performance, that that was within the

 159 6 range of acceptable limits.

 159 7 Q. So the ARC is a -- a quality control

 159 8 device, is that --

 159 9 A. It is a quality control device.

160:3 - 160:6 Knauer, R. 2019-12-17

 160 3 Q. Okay. But you don't have any specific

 160 4 recollections of there being quality trouble with the

 160 5 Combat Arms plugs that were being made in Mexico?

 160 6 A. No, I have no specific recollection.

Re: [160:3-160:6]

3M MIL No. 26; 

foundation (602)

OVERRULED

166:14 - 166:19 Knauer, R. 2019-12-17

 166 14 Q. So this says Ari- -- Aearo Company

 166 15 Memorandum at the top and it is to J. Marlette,

 166 16 R. Bomke, R. Knauer, B. Myers, B. Klun, S. Todor, 

and

 166 17 B. Bogdan.

 166 18 Do you see that?

 166 19 A. Yes, I see that.

167:15 - 167:18 Knauer, R. 2019-12-17

 167 15 Q. And what would have been the reporting

 167 16 relationship between you and Klun?

 167 17 A. If he was technical director at that time,

 167 18 I would have reported to Bob Klun.

171:4 - 171:8 Knauer, R. 2019-12-17

 171 4 Q. Okay. So if we can go back to the

 171 5 document, it says: "Technical and manufacturing will

 171 6 address stem/filter assembly to avoid incorrect

 171 7 assembly with the goal being zero defects," right?

 171 8 A. Yes.

172:11 - 172:19 Knauer, R. 2019-12-17

 172 11 Q. Right. So the filter has a certain

 172 12 diameter, it has got to fit into this center assembly

 172 13 in some way, and you've got to make sure that the 

ones

 172 14 you are getting sent aren't going to be too big to fit

 172 15 into this, right?

 172 16 A. Neither too big nor too small.

 172 17 Q. Or too small so they slip through?

 172 18 A. And had to have the correct -- to meet the

 172 19 acoustical requirements of the product.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 35 of 320
Knauer, R. 2019-12-17 34

172:20 - 173:2 Knauer, R. 2019-12-17

 172 20 Q. Did that ever become a problem and -- when

 172 21 you were involved with this plug as the technical

 172 22 director of the lab with the -- the -- there being an

 172 23 issue with tolerances with the filters either being

 172 24 too big or too small to fit into this stem assembly?

 172 25 A. I do not remember any. If -- if there

 173 1 were any, we would have resolved them, but I don't

 173 2 remember any, no.

Re: [172:20-173:2]

Improper Counter 

Designation per PTO 64, 

403

OVERRULED

173:3 - 173:8 Knauer, R. 2019-12-17

 173 3 Q. Okay. No. 4 says: "Steve Todor and Dick

 173 4 Knauer will address adapter tolerances for stem and

 173 5 earplug. Steve will get initial feedback to Dick

 173 6 regarding tolerance concerns."

 173 7 Right?

 173 8 A. Yes.

175:17 - 175:22 Knauer, R. 2019-12-17

 175 17 Q. Okay. If you could look with me under

 175 18 Commercial Update/Plans, it says: "The initial order

 175 19 of 1,000 pair of the Combat Arms earplugs will be

 175 20 going to U.S. Army troops in Italy."

 175 21 Do you see that?

 175 22 A. Yes, I see that.

176:6 - 176:10 Knauer, R. 2019-12-17

 176 6 Q. Okay. And then if you look with me at the

 176 7 last sentence of that paragraph, it says: "The

 176 8 military plans on disseminating one pair to each

 176 9 soldier each year," right?

 176 10 A. That's what it says, yes.

181:17 - 181:25 Knauer, R. 2019-12-17

 181 17 And you recall we were talking about

 181 18 the -- on the second page the ARCs that were used as 

a

 181 19 quality control device in Mexico?

 181 20 A. Yes, I recall that.

 181 21 Q. All right. And we talked a little bit

 181 22 about acoustic resistance and that this -- this

 181 23 measured acoustic resistance, that's what this 

machine

 181 24 did, right?

 181 25 A. That's what I -- that's what I remember

182:5 - 182:18 Knauer, R. 2019-12-17

 182 5 Q. So -- so one thing we know is that the ARC

Re: [182:5-182:11]

Def Objection - 3M MIL No. 

Re: [182:5-

182:11]

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 36 of 320
Knauer, R. 2019-12-17 35

 182 6 is a quality control for acoustic resistance.

 182 7 Now, did you have an understanding that,

 182 8 for the Combat Arms plugs that contained the -- the

 182 9 French filter in the yellow end, right?

 182 10 A. Yes, it contained a filter in the yellow

 182 11 end, yeah.

 182 12 Q. Okay. So did you have an understanding

 182 13 that the Combat Arms plugs that contained that 

French

 182 14 filter, that to make sure that you are getting to get

 182 15 the impulse noise reduction from that filter the way

 182 16 it is manufactured and put together, that you need to

 182 17 test -- test the acoustic resistance to make sure it

 182 18 is within certain levels?

26, Relevance (401, 402), 

Prejudice (403)

Re: [182:12-183:3]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403), Vague (403)

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [182:12-

183:3]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403), Vague 

(403)

OVERRULED

182:21 - 183:9 Knauer, R. 2019-12-17

 182 21 A. My understanding for what that test did is

 182 22 that it measured the acoustic resistance and that

 182 23 Elliott Berger had done some work to -- Elliott 

Berger

 182 24 and Ron Kieper and poss- -- very possibly others had

 182 25 done some work to determine what that range of

 183 1 acoustic resistance needed to be in order to -- for

 183 2 the filter to be performing in a way it's designed to

 183 3 be -- designed.

 183 4 BY MR. OVERHOLTZ:

 183 5 Q. Okay. And it was your understanding

 183 6 that -- that that test -- that -- that work that had

 183 7 been done with acoustic resistance, that it a- -- that

 183 8 it was done to make sure that the filter was going to

 183 9 limit impulse noise?

Re: [182:12-183:3]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403), Vague (403)

Re: [183:4-184:5]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [182:12-

183:3]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403), Vague 

(403)

OVERRULED

Re: [183:4-184:5]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

183:12 - 183:25 Knauer, R. 2019-12-17

 183 12 Q. That's why you do this test?

 183 13 A. The test was to measure the acoustic

 183 14 resistance and based on Elliott Berger's, and possibly

 183 15 other people's testing, a range was identified of

 183 16 acoustic resistance that the filter was performing in

 183 17 the range that it was supposed to be performing.

 183 18 Q. All right. So what -- so based on your

 183 19 testimony, what you are looking for is -- is the

 183 20 acoustic resistance within an acceptable range?

 183 21 A. It was -- it was within an acceptable

 183 22 range.

Re: [183:4-184:5]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [183:4-184:5]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 37 of 320
Knauer, R. 2019-12-17 36

 183 23 Q. Okay. And you are trying to make sure

 183 24 that this filter side of the plug is going to work

 183 25 right and stop the impulse noise, right?

184:3 - 184:5 Knauer, R. 2019-12-17

 184 3 A. The objective was to demonstrate that the

 184 4 filter was in there and doing what the testing had

 184 5 said it should do.

Re: [183:4-184:5]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [183:4-184:5]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

184:9 - 184:17 Knauer, R. 2019-12-17

 184 9 (WHEREUPON, a certain document was

 184 10 marked Dick Knauer Deposition Exhibit

 184 11 No. 21, for identification, as of

 184 12 12/17/2019.)

 184 13 BY MR. OVERHOLTZ:

 184 14 Q. Okay. So looking at Exhibit 21, this is

 184 15 an e-mail that you sent to Brian Myers and Gary 

Warren

 184 16 on January 5th, 2006, is that right?

 184 17 A. That's what it looks like, yes, sir.

185:1 - 185:8 Knauer, R. 2019-12-17

 185 1 So the subject of this e-mail that you

 185 2 sent to Brian Myers and Gary Warren on January 5th,

 185 3 2006, is the "Combat Arms," correct?

 185 4 A. Yes.

 185 5 Q. And who is Gary Warren?

 185 6 A. Gary Warren was a sales manager, I

 185 7 believe.

 185 8 Q. Okay.

186:16 - 186:21 Knauer, R. 2019-12-17

 186 16 Is -- Gary Warren wrote on January 5th and

 186 17 said: "Dick: how do we test the effectiveness of

 186 18 Combat Arms to ensure that it in fact blocks out

 186 19 impact noise levels?"

 186 20 Do you see that?

 186 21 A. Yes, I see that.

Re: [186:13-186:21]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [186:13-

186:21]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

DESIGNATION 

WITHDRAWN 

[186:13-186:15], 

3/13/2021 

OVERRULED 

as to [186:16-21]

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 38 of 320
Knauer, R. 2019-12-17 37

187:4 - 187:9 Knauer, R. 2019-12-17

 187 4 Q. Okay. One of the things that this plug is

 187 5 meant to do is to block impulse noise, right?

 187 6 A. Yes.

 187 7 Q. These are like loud blast, loud sounds,

 187 8 not constant sounds, right?

 187 9 A. Yes.

187:13 - 188:17 Knauer, R. 2019-12-17

 187 13 So you respond and say: "We have

 187 14 developed a test fixture that measures acoustical

 187 15 impedance," and then you go on.

 187 16 Do you see that?

 187 17 A. Yes.

 187 18 Q. "When the product was developed, the

 187 19 Combat Arms were tested at a firing range: for those

 187 20 that provided acceptable performance for blocking 

out

 187 21 the appropriate amount of impact noise, it was

 187 22 determined that those plugs had a particular

 187 23 acoustical impedance."

 187 24 Do you see that?

 187 25 A. Yes.

 188 1 Q. Is that the work that Elliott Berger, you

 188 2 were talking about, had done?

 188 3 A. On the test device, yes.

 188 4 Q. Yeah, okay.

 188 5 "A range of acceptable acoustical

 188 6 impedance was developed thereafter."

 188 7 Do you see that?

 188 8 A. Yes.

 188 9 Q. So that was the range that we were talking

 188 10 about before, right?

 188 11 A. Yes.

 188 12 Q. Okay. "Currently when the product is

 188 13 assembled, the testing is done on 100% of the plugs."

 188 14 Do you see that?

 188 15 A. Yes.

 188 16 Q. Now, why do you do the testing on

 188 17 100 percent of the plugs?

Re: [187:13-188:15]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [188:16-188:17]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [187:13-

188:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [188:16-

188:17]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

188:20 - 189:3 Knauer, R. 2019-12-17

 188 20 A. We -- I mean, you asked why we do it on

 188 21 100 percent of the plugs?

 188 22 BY MR. OVERHOLTZ:

Re: [188:20-189:3]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [188:20-

189:3]

Def Objection -

3M MIL No. 26, 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 39 of 320
Knauer, R. 2019-12-17 38

 188 23 Q. Yes.

 188 24 A. When we set up this product, had various

 188 25 discussions obviously, I had various discussions, and

 189 1 because of the importance of the test, we made a

 189 2 decision, and I'm not sure who all made it, but we

 189 3 made a decision to test 100 percent of the plugs.

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

189:17 - 190:11 Knauer, R. 2019-12-17

 189 17 Q. But this -- on the screen, the ARC we

 189 18 described it, that's the device that's used to test

 189 19 this acoustic impedance, or I wrote "resistance"

 189 20 before, right?

 189 21 A. Yes.

 189 22 Q. Okay. And so you used this ARC machine to

 189 23 test all of the Combat Arms plugs 100 percent, right,

 189 24 100 percent of the plugs, to make sure they are within

 189 25 an acceptable range to test the effectiveness of the

 190 1 plug, right?

 190 2 A. We are using it to test the -- to make

 190 3 sure that the acoustical impedance is where it needs

 190 4 to be.

 190 5 Q. And that's related to the plug's

 190 6 effectiveness?

 190 7 A. That's related to how the plug would

 190 8 behave as -- in an impulse noise, yes.

 190 9 Q. Okay. And if you don't test the

 190 10 100 percent of the plugs, you can't guarantee that

 190 11 they are going to work, right?

Re: [190:9-190:17]

foundation (602)

OVERRULED

190:15 - 190:17 Knauer, R. 2019-12-17

 190 15 A. I don't -- I -- I mean, basically we

 190 16 took -- we made a decision to test 100 percent of the

 190 17 plugs.

Re: [190:9-190:17]

foundation (602)

OVERRULED

190:21 - 190:24 Knauer, R. 2019-12-17

 190 21 Q. From a quality control perspective, if you

 190 22 don't test 100 percent of the plugs, you can't

 190 23 guarantee that the plug is going to be within an

 190 24 acceptable range, is that right?

Re: [190:21-191:4]

foundation (602)

OVERRULED

191:2 - 191:4 Knauer, R. 2019-12-17

 191 2 A. You -- you -- you test them all to give

 191 3 you a degree, much higher degree of confidence that

 191 4 the product will perform as -- as advertised.

Re: [190:21-191:4]

foundation (602)

OVERRULED

192:9 - 192:12 Knauer, R. 2019-12-17

 192 9 Q. Was the quality control testing done in

 192 10 Mexico as well?

Re: [192:9-192:12]

Def Objection - 3M MIL No. 

Re: [192:9-

192:12]

Def Objection -

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 40 of 320
Knauer, R. 2019-12-17 39

 192 11 A. There was a quality control testing done

 192 12 in Mexico, yes.

26, Relevance (401, 402), 

Prejudice (403)

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

192:22 - 192:25 Knauer, R. 2019-12-17

 192 22 (WHEREUPON, a certain document was

 192 23 marked Dick Knauer Deposition Exhibit

 192 24 No. 22, for identification, as of

 192 25 12/17/2019.)

193:5 - 196:17 Knauer, R. 2019-12-17

 193 5 Q. 22, which is DK-15, MDL434795.

 193 6 So if you'll take a look at this

 193 7 Exhibit 22, Mr. Knauer, it's another one of the

 193 8 Elliott Berger monthly reports, this one dated

 193 9 February 28th, 2003, February Monthly Report.

 193 10 A. Yeah.

 193 11 Q. Do you see that?

 193 12 A. Yes, I see that.

 193 13 Q. And there's a couple of different

 193 14 sections, Hercules Project and then below that,

 193 15 Project-Related Research and Development and 

Support.

 193 16 Do you see that?

 193 17 A. Yes.

 193 18 Q. Okay. It said: "Hosted Mead" -- "Mead

 193 19 Killion."

 193 20 Do you see that?

 193 21 A. Yes.

 193 22 Q. He was one of the head guys over at

 193 23 Etymotic Research, is that right?

 193 24 A. He was the head guy at Etymotic Research,

 193 25 yes.

 194 1 Q. Okay. The next sentence says -- okay, and

 194 2 just to be clear, this monthly report that Berger

 194 3 sent, he sent it to you, right, at the top of the

 194 4 page?

 194 5 A. Yes.

 194 6 Q. Okay. And the next sentence says: "RWK,"

 194 7 that would be referring to Ron Kieper?

 194 8 A. That's correct.

 194 9 Q. Okay. "Ron Kieper assisted Gordon Grogan

 194 10 and spoke with Bob Zielinski about the problems 

Re: [193:5-195:6]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403)

Re: [195:7-196:21]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403); Foundation 

(602)

Re: [193:5-195:6]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403)

OVERRULED

Re: [195:7-

196:21]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); Foundation 

(602)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 41 of 320
Knauer, R. 2019-12-17 40

with

 194 11 the Combat Arms Plug in Mexico."

 194 12 Do you see that?

 194 13 A. Yes.

 194 14 Q. "He recommended that one of the ARCs be

 194 15 sent to Indianapolis so the 100 plugs can be measured

 194 16 in the lab, to help determine why Mexico's

 194 17 measurements had an 80% reject rate."

 194 18 Did I read that right?

 194 19 A. Yes.

 194 20 Q. Okay. And the ARCs, again, is talking

 194 21 about the same thing that we were talking about 

before

 194 22 on the screen, this quality control device, right?

 194 23 A. Yes.

 194 24 Q. Okay. And you told me Zielinski's job was

 194 25 in operations, is that right?

 195 1 A. His job was in operations, yes.

 195 2 Q. Okay. And how about Gordon Grogan?

 195 3 A. He was a quality control guy and...

 195 4 Q. Okay. And so -- do you remember the

 195 5 80 percent failure they were getting down in Mexico?

 195 6 A. No, I don't remember that.

 195 7 Q. Okay. Let's -- let's take a look at what

 195 8 we'll mark as Exhibit 23, which is DK-46.

 195 9 (WHEREUPON, a certain document was

 195 10 marked Dick Knauer Deposition Exhibit

 195 11 No. 23, for identification, as of

 195 12 12/17/2019.)

 195 13 BY MR. OVERHOLTZ:

 195 14 Q. So if we can take a look at this document,

 195 15 it's titled "Mexico Visit, Bob Zielinski

 195 16 Responsibilities," right?

 195 17 A. Yes.

 195 18 Q. And the first section is called Issues.

 195 19 And it says: "There have been problems

 195 20 with test equipment procedures not being followed at

 195 21 TJR."

 195 22 Do you see that?

 195 23 A. Yes.

 195 24 Q. TJR, is that the Mexican company?

 195 25 A. Yes.

 196 1 Q. Okay. Do you remember what that stood

 196 2 for?

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 42 of 320
Knauer, R. 2019-12-17 41

 196 3 A. No.

 196 4 Q. The machine -- do you know where -- did I

 196 5 ask you this before, do you know where it was in

 196 6 Mexico?

 196 7 A. I -- it was in the middle of nowhere in

 196 8 Mexico from my best understanding.

 196 9 Q. Okay.

 196 10 The next sentence says: "The machines

 196 11 were due for calibration in May of 03 as stipulated in

 196 12 the specified Operating procedure, but even a year

 196 13 later were not calibrated."

 196 14 Do you see that?

 196 15 A. Yes.

 196 16 Q. That was talking about the ARC quality

 196 17 control testing equipment in Mexico, right?

196:20 - 197:2 Knauer, R. 2019-12-17

 196 20 A. That was talking about the equipment that

 196 21 was used, the -- the ARC equipment.

 196 22 BY MR. OVERHOLTZ:

 196 23 Q. Because what we looked at before in that

 196 24 monthly report was Ron Kieper was recommending 

we send

 196 25 another ARC down to Mexico to see what's going on,

 197 1 right?

 197 2 A. I would --

Re: [195:7-196:21]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403); Foundation 

(602)

Re: [196:22-198:15]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403); Foundation 

(602)

Re: [195:7-

196:21]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); Foundation 

(602)

OVERRULED

Re: [196:22-

198:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); Foundation 

(602)

DESIGNATION 

WITHDRAWN 

[198:11 –

198:15], 

3/13/2021 

OVERRULED 

as to [196:22-

198:10]

197:5 - 198:10 Knauer, R. 2019-12-17

 197 5 A. I would have to go back and look to see.

 197 6 BY MR. OVERHOLTZ:

Re: [196:22-198:15]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Re: [196:22-

198:15]

Def Objection -

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 43 of 320
Knauer, R. 2019-12-17 42

 197 7 Q. Sure.

 197 8 Yeah, he said: "RWK assisted Gordon

 197 9 Grogan and spoke with Bob Zielinski about the 

problems

 197 10 with the plug in Mexico. He recommended that one 

of

 197 11 the ARCs be sent to Indianapolis so the 100 plugs

 197 12 could be measured in the lab to help determine why

 197 13 Mexico's measurements had a 80% reject rate."

 197 14 Right?

 197 15 A. Yeah, he recommended that the device be

 197 16 sent to Indianapolis --

 197 17 Q. Right.

 197 18 A. -- so we could look at it, yes.

 197 19 Q. So send the ARC from Mexico up to

 197 20 Indianapolis and let's see what's happening?

 197 21 A. That's what it sounds like was he was

 197 22 asking for.

 197 23 Q. Okay.

 197 24 Issue No. 2. "It was requested in May 04

 197 25 to rectify the calibration issue but it has taken

 198 1 approximately six months for TJR to get all of the

 198 2 machines out for calibration. Operating procedures

 198 3 not followed."

 198 4 Do you see that?

 198 5 A. Yes.

 198 6 Q. "Because of equipment measurement

 198 7 problems, TJR had to operate with a quality waiver 

for

 198 8 several months."

 198 9 Do you see that?

 198 10 A. Yes.

Prejudice (403); Foundation 

(602)

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); Foundation 

(602)

DESIGNATION 

WITHDRAWN 

[198:11 –

198:15], 

3/13/2021 

OVERRULED 

as to [196:22-

198:10]

197:24 - 198:10 Knauer, R. 2019-12-17

 197 24 Issue No. 2. "It was requested in May 04

 197 25 to rectify the calibration issue but it has taken

 198 1 approximately six months for TJR to get all of the

 198 2 machines out for calibration. Operating procedures

 198 3 not followed."

 198 4 Do you see that?

 198 5 A. Yes.

 198 6 Q. "Because of equipment measurement

 198 7 problems, TJR had to operate with a quality waiver 

for

 198 8 several months."

Re: [196:22-198:15]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403); Foundation 

(602)

Re: [196:22-

198:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); Foundation 

(602)

DESIGNATION 

WITHDRAWN 

[198:11 –

198:15], 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 44 of 320
Knauer, R. 2019-12-17 43

 198 9 Do you see that?

 198 10 A. Yes.

3/13/2021 

OVERRULED 

as to [196:22-

198:10]

198:11 - 198:11 Knauer, R. 2019-12-17

 198 11 Q. What's a quality waiver?

198:14 - 198:15 Knauer, R. 2019-12-17

 198 14 A. I don't know what that particular quality

 198 15 waiver was.

Re: [196:22-198:15]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403); Foundation 

(602)

Re: [196:22-

198:15]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403); Foundation 

(602)

DESIGNATION 

WITHDRAWN 

[198:11 –

198:15], 

3/13/2021 

OVERRULED 

as to [196:22-

198:10]

201:16 - 202:14 Knauer, R. 2019-12-17

 201 16 Q. Okay. Now it says R&D Position.

 201 17 Do you see that?

 201 18 A. Yes.

 201 19 Q. "It took over six months for TJR to get

 201 20 their quality testing in place for the Combat Arms

 201 21 product."

 201 22 Do you see that?

 201 23 A. Yes.

 201 24 Q. "Now we have more quality testing

 201 25 problems. We need to take this opportunity to fix the

 202 1 equipment, ensure people are properly trained and

 202 2 procedures are being followed."

 202 3 Right?

 202 4 A. Yes.

 202 5 Q. "A joint visit by Bob and Ron to make a

 202 6 big improvement in our quality testing is needed."

 202 7 That's what's written there, right?

 202 8 A. Yes.

 202 9 Q. The next page: "We believe this issue is

 202 10 not an acute problem, but rather a chronic that needs

Re: [201:8-202:22]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403), Foundation 

(602)

Re: [201:8-

202:22]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

DESIGNATION 

WITHDRAWN 

[201:8-201:15], 

3/13/2021 

OVERRULED 

as to 201:16-

202:22

Re: [202:14-202:18]

foundation (602)

OVERRULED. 

No new objection 

specific to 

McCombs. 

202:15-16 not 

designated.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 45 of 320
Knauer, R. 2019-12-17 44

 202 11 to be fixed now."

 202 12 Right?

 202 13 A. Yes.

 202 14 Q. Chronic means a continuing problem, right?

202:17 - 202:22 Knauer, R. 2019-12-17

 202 17 A. I don't know what it means. I didn't

 202 18 write this.

 202 19 BY MR. OVERHOLTZ:

 202 20 Q. Like chronic hip pain or chronic knee

 202 21 pain?

 202 22 A. I -- I don't know what it means.

Re: [201:8-202:22]

Def Objection - 3M MIL No. 

26, Relevance (401, 402), 

Prejudice (403), Foundation 

(602)

Re: [201:8-

202:22]

Def Objection -

3M MIL No. 26, 

Relevance (401, 

402), Prejudice 

(403), Foundation 

(602)

DESIGNATION 

WITHDRAWN 

[201:8-201:15], 

3/13/2021 

OVERRULED 

as to 201:16-

202:22

Re: [202:14-202:18]

foundation (602)

OVERRULED. 

No new objection 

specific to 

McCombs. 

202:15-16 not 

designated.

203:4 - 203:10 Knauer, R. 2019-12-17

 203 4 Q. Exhibit 22.

 203 5 The first page has the part about the

 203 6 Zielinski and dealing with the ARC testing issue in

 203 7 Mexico.

 203 8 But if you could flip with me over to the

 203 9 second page. There is a -- if you go down with me,

 203 10 there is a section called NRR Labeling Testing, right?

203:14 - 203:14 Knauer, R. 2019-12-17

 203 14 A. Oh, yes. I'm sorry.

Re: [203:14-203:14]

relevance (401, 402); 403

OVERRULED

203:19 - 204:18 Knauer, R. 2019-12-17

 203 19 Q. It's okay.

 203 20 NRR Labeling/EPA-Type Testing and there

 203 21 are several different plugs there listed, but the last

 203 22 sentence says: "A spreadsheet with the status of

 203 23 everyone evaluated for the HPD test panels was

 203 24 created..."

 203 25 Do you see that?

 204 1 A. Yes.

 204 2 Q. And I'm going to finish reading that, but

 204 3 I just want to ask you, HPD, is that -- is that the

 204 4 hearing protector database or hearing protection

 204 5 device test panels?

 204 6 A. Hearing -- hearing protection device, I

Re: [203:19-204:18]

3M MIL No. 23

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 46 of 320
Knauer, R. 2019-12-17 45

 204 7 believe, but I'm not sure what he meant.

 204 8 Q. "A spreadsheet of the status of everyone

 204 9 evaluated for HPD test panels was created to show the

 204 10 need for continued support from management in the 

use

 204 11 of employees on the panels."

 204 12 Do you see that?

 204 13 A. Yes.

 204 14 Q. So the testing that Ron Kieper was doing

 204 15 in the lab of the plugs, at Aearo at this time was

 204 16 done on -- not -- not always, but Aearo used 

employees

 204 17 of the company on those test panels, right?

 204 18 A. In some instances used employees, yes.

204:1 - 204:18 Knauer, R. 2019-12-17

 204 1 A. Yes.

 204 2 Q. And I'm going to finish reading that, but

 204 3 I just want to ask you, HPD, is that -- is that the

 204 4 hearing protector database or hearing protection

 204 5 device test panels?

 204 6 A. Hearing -- hearing protection device, I

 204 7 believe, but I'm not sure what he meant.

 204 8 Q. "A spreadsheet of the status of everyone

 204 9 evaluated for HPD test panels was created to show the

 204 10 need for continued support from management in the 

use

 204 11 of employees on the panels."

 204 12 Do you see that?

 204 13 A. Yes.

 204 14 Q. So the testing that Ron Kieper was doing

 204 15 in the lab of the plugs, at Aearo at this time was

 204 16 done on -- not -- not always, but Aearo used 

employees

 204 17 of the company on those test panels, right?

 204 18 A. In some instances used employees, yes.

Re: [203:19-204:18]

3M MIL No. 23

OVERRULED

239:5 - 239:11 Knauer, R. 2019-12-17

 239 5 Q. You were reminded you had described it as

 239 6 that you had -- if you had an expertise from an

 239 7 engineering perspective, it would be in materials, is

 239 8 that right?

 239 9 A. Yes, that's correct.

 239 10 Q. Okay. Does rolling back a flange, could

 239 11 that create wear on a plug?

Re: [239:10-239:16]

foundation (602); 

relevance (401, 402); 

prejudice (403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 47 of 320
Knauer, R. 2019-12-17 46

239:14 - 239:16 Knauer, R. 2019-12-17

 239 14 A. If you take a plug of that type and move

 239 15 the flange, you are doing -- introducing a little bit

 239 16 of stress, yes.

Re: [239:10-239:16]

foundation (602); 

relevance (401, 402); 

prejudice (403)

OVERRULED

240:6 - 240:9 Knauer, R. 2019-12-17

 240 6 Q. Okay. And did the company ever do any

 240 7 testing with respect to whether or not -- with respect

 240 8 to the amount of wear that would happen if the 

flanges

 240 9 are rolled back when the user is wearing them?

Re: [240:6-240:13]

foundation (602); 

relevance (401, 402); 

prejudice (403)

OVERRULED

240:12 - 240:13 Knauer, R. 2019-12-17

 240 12 A. I do not remember whether any testing was

 240 13 done.

Re: [240:6-240:13]

foundation (602); 

relevance (401, 402); 

prejudice (403)

OVERRULED

240:24 - 241:4 Knauer, R. 2019-12-17

 240 24 Q. Okay. But you are not aware -- you are

 240 25 not aware of any testing of whether or not a folding

 241 1 flanges -- you are not aware of testing the folding

 241 2 flanges creates wear, is that right?

 241 3 A. I do not remember doing any testing along

 241 4 that line, that's a correct answer.

242:9 - 243:24 Knauer, R. 2019-12-17

 242 9 MR. OVERHOLTZ: Let me mark Exhibit 29, as

 242 10 DK-55.

 242 11 (WHEREUPON, a certain document was

 242 12 marked Dick Knauer Deposition Exhibit

 242 13 No. 29, for identification, as of

 242 14 12/17/2019.)

 242 15 BY MR. OVERHOLTZ:

 242 16 Q. While she is getting that, do you recall

 242 17 we looked previously, I think it was Exhibit 23, was

 242 18 the Bob Zielinski responsibility?

 242 19 A. I just put that away.

 242 20 Q. Just so you know, this -- the -- the

 242 21 document was produced to us out of the files, it came

 242 22 out of your file, Mr. Knauer. So this Bob Zielinski

 242 23 Mexico visit responsibilities was out of your file,

 242 24 and it had a date of November 19th, 2004.

 242 25 Do you see that on the screen?

 243 1 A. Okay.

 243 2 Q. Okay. And the title of the document that

 243 3 was given to us was described as the Action Plan to

 243 4 Address Quality Problems At TJR.doc.

Re: [242:9-243:19]

3M MIL No. 26

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 48 of 320
Knauer, R. 2019-12-17 47

 243 5 Do you see that?

 243 6 A. I am having trouble seeing it.

 243 7 Q. You have one right here too if that helps.

 243 8 A. Where are we? Okay.

 243 9 Q. Okay. Action Plan to Address Quality

 243 10 Problems At TJR?

 243 11 A. Yes.

 243 12 Q. And TJR, TJR, that's the Mexican company,

 243 13 right?

 243 14 A. TJR is the Mexican hand assembly

 243 15 operation, yes.

 243 16 Q. Okay. And you see we got it out of a file

 243 17 folder that had R. Knauer, My Documents.

 243 18 Do you see that?

 243 19 A. Yes, I see that.

 243 20 Q. Okay. And I'll mark this as

 243 21 Exhibit 20- -- Exhibit 30, which was the metadata of

 243 22 the document that was provided to us by Aearo when

 243 23 they gave it to us, okay.

 243 24 A. Okay.

244:1 - 244:3 Knauer, R. 2019-12-17

 244 1 marked Dick Knauer Deposition Exhibit

 244 2 No. 30, for identification, as of

 244 3 12/17/2019.)

244:11 - 245:23 Knauer, R. 2019-12-17

 244 11 Q. -- 29 ready, and this is DK-55. It is an

 244 12 e-mail that you sent on January 12th, 2001, to Brian

 244 13 Myers.

 244 14 Do you see that?

 244 15 A. Yes.

 244 16 Q. And the subject is the "UltraFit," right?

 244 17 A. Yes.

 244 18 Q. And you say: "Brian, to confirm our

 244 19 recent conversation. We had a recent complaint with

 244 20 the UltraFit where-in the top flange became separated

 244 21 from the rest of the plug. In our investigation I

 244 22 referred back to an instruction which I believed had

 244 23 been on the package essentially advising end users

 244 24 that after wearing inspection of the plug" -- "after

 244 25 wearing inspection of the plug should take place and

 245 1 that plug should be discarded if any wear is noted,

 245 2 particularly at the flange to stem interface."

 245 3 Do you see that?

Re: [244:11-245:23]

Relevance (401, 402); 

prejudice (403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 49 of 320
Knauer, R. 2019-12-17 48

 245 4 A. Yes.

 245 5 Q. Okay. And you thought that instruction

 245 6 had been in place, is that right?

 245 7 A. That's what it says, yes.

 245 8 Q. Okay. "I thought this type of instruction

 245 9 was added to the package within the last few years,

 245 10 but examination of the package indicates that this

 245 11 type of instruction is not currently present. Perhaps

 245 12 it was taken off in a revision or perhaps the earlier

 245 13 request slipped through the cracks and it was never

 245 14 added. Since Aearo periodically receives this type of

 245 15 complaint it is imperative that we revise our

 245 16 instructions to incorporate this type of instruction."

 245 17 Right?

 245 18 A. Yes.

 245 19 Q. And you're recommending and saying it is

 245 20 imperative to revise instructions because to -- to get

 245 21 good, effective use of the UltraFit Plug, you should

 245 22 discard it if wear is noted at the flange, is that

 245 23 right?

246:1 - 246:6 Knauer, R. 2019-12-17

 246 1 A. I was -- I was saying that the top flange

 246 2 became separated -- I mean, basically the -- what this

 246 3 refers to is the top flange being separated from the

 246 4 rest of the plug and would remain in the end user's

 246 5 ear, so that would have to be removed from the end

 246 6 user's ear.

Re: [246:1-246:6]

relevance (401, 402); 

prejudice (403)

OVERRULED

247:6 - 247:9 Knauer, R. 2019-12-17

 247 6 Q. If the company believes that instructions

 247 7 are necessary to allow the user to get proper

 247 8 protection from the earplug, is the company under a

 247 9 duty to revise that instruction?

Re: [247:6-247:14]

foundation (602); calls for 

legal conclusion (611, 403)

OVERRULED

247:12 - 247:14 Knauer, R. 2019-12-17

 247 12 A. The company is under a duty to provide the

 247 13 appropriate instructions for proper use of the

 247 14 earplug.

Re: [247:6-247:14]

foundation (602); calls for 

legal conclusion (611, 403)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 50 of 320
Ibrahim, A. 2020-09-23

Colors

Plaintiff Affirmatives

Defense Objections

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 51 of 320
Ibrahim, A. 2020-09-23 2

Designation Objection RULINGS

8:14 - 8:16 Ibrahim, A. 2020-09-23

 8 14 Could you first state your name

 8 15 for the record?

 8 16 A. Ahmed Ibrahim.

8:21 - 9:9 Ibrahim, A. 2020-09-23

 8 21 Q. Okay. And do you hold a

 8 22 professional license?

 8 23 A. Yes. I am a physician in

 9 1 Tennessee.

 9 2 Q. Okay. And what type of physician

 9 3 are you?

 9 4 A. I'm a psychiatrist.

 9 5 Q. Do you hold an MD?

 9 6 A. Yes, ma'am.

 9 7 Q. And are you registered in the

 9 8 state of Tennessee?

 9 9 A. Yes.

14:5 - 15:22 Ibrahim, A. 2020-09-23

 14 5 Q. Did you ever reach a conclusion

 14 6 while you were treating Mr. McCombs as to

 14 7 what was causing his PTSD?

 14 8 A. Yes. That's the first thing in

 14 9 diagnosing PTSD is to find the clinical

 14 10 trauma, so it was combat-related trauma with

 14 11 regard to -- he was infantryman, so he was

 14 12 exposed to combat and a blast with IUD in

 14 13 2009, so that's what the cause for PTSD.

 14 14 Q. So your diagnosis had been that

 14 15 Mr. McCombs' PTSD was caused by his exposure

 14 16 to combat-induced trauma when he was in the

 14 17 service; is that correct?

 14 18 A. That's correct.

 14 19 Q. And when you say combat-induced

 14 20 trauma, can you explain to the jury what

 14 21 that is?

 14 22 A. Basically with post-traumatic

 14 23 stress disorder, one has to -- which can be

 15 1 combat or noncombat, of course. One has to

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 52 of 320
Ibrahim, A. 2020-09-23 3

 15 2 be exposed to a traumatic event where his or

 15 3 her life or physical safety is in danger or

 15 4 witnessing the life or physical safety of

 15 5 someone else being endangered and not being

 15 6 able to do anything to prevent that or

 15 7 feeling hopeless during the situation.

 15 8 So exposure to that type of trauma

 15 9 can lead one to develop symptoms later on

 15 10 that we call post-traumatic stress disorder.

 15 11 So according to the history -- of course,

 15 12 all of this we receive from the veteran,

 15 13 from his own reports, so according to him,

 15 14 he's an OEF veteran, so he was exposed to

 15 15 combat, he was in infantry and he was

 15 16 exposed to gun fires, IED blasts, witnessed

 15 17 comrades being shot at, so definitely felt

 15 18 that he was in danger for his life and

 15 19 safety and developed the symptoms as he

 15 20 reported. So based on that, he was

 15 21 diagnosed with post-traumatic stress

 15 22 disorder.

23:9 - 24:7 Ibrahim, A. 2020-09-23

 23 9 Is there any other topics or items

 23 10 that you discussed with plaintiff's lawyers

 23 11 when you met with them about -- spoke with

 23 12 them about ten days ago concerning

 23 13 Mr. McCombs?

 23 14 A. The only other thing that I can

 23 15 remember was asking me if I had referred him

 23 16 for otology consult for tinnitus, and

 23 17 normally that would be something that is

 23 18 requested by primary care physicians.

 23 19 I did put these kinds of consults

 23 20 a couple of times in the past for veterans.

 23 21 I cannot say that I did that for Mr. McCombs

 23 22 simply because I see at the very end of the

 23 23 records, there are all the consult requests,

 24 1 and it shows every consult who ordered it.

 24 2 But I don't see the otology consult and who

Re: [23:9-24:7]

Def Obj Hearsay (802)

SUSTAINED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 53 of 320
Ibrahim, A. 2020-09-23 4

 24 3 ordered it.

 24 4 So I cannot say yes or no I was

 24 5 the one who ordered the consult or not.

 24 6 That was the only other item that we

 24 7 discussed.

36:17 - 37:7 Ibrahim, A. 2020-09-23

 36 17 we'll go to the record. Can you tell me

 36 18 about your educational background?

 36 19 A. I graduated from the medical

 36 20 school of the University of Cairo in Egypt.

 36 21 I went to psychiatry residency at Meharry

 36 22 Medical College in Nashville, Tennessee. I

 36 23 am board certified in psychiatry and board

 37 1 certified in addiction medicine.

 37 2 Q. When did you obtain your board

 37 3 certification in psychiatry?

 37 4 A. 2013.

 37 5 Q. And have you maintained your

 37 6 licensing consistently since then?

 37 7 A. Yes, ma'am.

38:3 - 38:12 Ibrahim, A. 2020-09-23

 38 3 Q. Okay. Can you walk us through

 38 4 your work history, employment history, since

 38 5 obtaining -- since graduating with your

 38 6 degree in psychiatry?

 38 7 A. So I finished my residency in 2013

 38 8 and I started working right away for the VA.

 38 9 So I was employed by the VA from July 2013

 38 10 until August 2018. And then since then,

 38 11 until now, I am employed by Parkridge Valley

 38 12 Psychiatric Hospital here in Chattanooga.

39:2 - 39:19 Ibrahim, A. 2020-09-23

 39 2 Q. Yes. Can you give us an estimate

 39 3 of how many VA patients you have treated?

 39 4 A. Wow, that's a lot. Let's see.

 39 5 About -- if we did eight patients a day on

 39 6 average, so about 40 a week, and let's say

 39 7 if I worked -- so let's say 40 a week, and

 39 8 let's say if I worked 48 -- my calculator is

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 54 of 320
Ibrahim, A. 2020-09-23 5

 39 9 not even helping me.

 39 10 Q. So --

 39 11 A. Yeah, it would be about 1,920

 39 12 patients a year. But of course not all of

 39 13 them are new patients. These are 1,920

 39 14 visits.

 39 15 Q. Understood. So on average, you

 39 16 would see eight patients a day. Some of

 39 17 them of course were former patients.

 39 18 A. At the VA, yes, it was a very

 39 19 light schedule. Yes.

40:4 - 40:8 Ibrahim, A. 2020-09-23

 40 4 Q. So is it fair to say that you have

 40 5 treated thousands, many thousands of

 40 6 veterans in connection with your practice of

 40 7 psychiatry for the VA?

 40 8 A. Absolutely.

70:19 - 71:7 Ibrahim, A. 2020-09-23

 70 19 Q. Okay. And what did Mr. McCombs

 70 20 report to you in his first visit?

 70 21 A. So basically, reading from what I

 70 22 mentioned here, finds himself drinking to

 70 23 get to sleep, up to four mixed drinks a

 71 1 night. Dreaming about war experience. His

 71 2 girlfriend noted that he is having some

 71 3 behavioral issues such as anger and easily

 71 4 aggravated. He tends to not talk to anyone

 71 5 about his issues and now more withdrawn, so

 71 6 that's kind of his initial things that he

 71 7 mentioned.

GREY IS REMOVED

81:5 - 81:7 Ibrahim, A. 2020-09-23

 81 5 Q. Based on your assessment, did you

 81 6 conclude that Mr. McCombs had PTSD?

 81 7 A. Yes.

129:21 - 130:7 Ibrahim, A. 2020-09-23

 129 21 Q. Now, you had told us you also

 129 22 recommended that he go to the Vet Center as

 129 23 part of his treatment, correct?

 130 1 A. Yes.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 55 of 320
Ibrahim, A. 2020-09-23 6

 130 2 Q. What did Mr. McCombs tell you on

 130 3 March 17th of 2017 in connection with his

 130 4 visits to the Vet Center?

 130 5 A. It appears he says he had not been

 130 6 to the Vet Center in a while due to working

 130 7 out of town.

150:21 - 151:16 Ibrahim, A. 2020-09-23

 150 21 Q. Part of what you do as a

 150 22 physician, especially psychiatrist, treat

 150 23 people with PTSD, severe PTSD, right, which

 151 1 is what he had, true?

 151 2 MS. KARIS: Object to the form.

 151 3 A. Yes. PTSD, chronic, there is no

 151 4 actual classification of severity of PTSD.

 151 5 Q. Part of what you try to do when

 151 6 you treat people with PTSD is to try to find

 151 7 a mix of medications that might help him; is

 151 8 that correct?

 151 9 A. That's correct, yes.

 151 10 Q. And I think you said that the

 151 11 medications are not going to cure the PTSD,

 151 12 true?

 151 13 MS. KARIS: Object to the form.

 151 14 A. Nothing will cure PTSD. It's

 151 15 classified as a lifelong condition. You can

 151 16 only treat it. You cannot cure it.

Re: [150:21-151:16]

Def Obj Leading

OVERRULED

155:8 - 157:16 Ibrahim, A. 2020-09-23

 155 8 Q. Now, let me ask you about the

 155 9 PTSD. It's a serious condition, isn't it?

 155 10 A. Yes.

 155 11 Q. Tell me what are the -- are some

 155 12 of the dire consequences of PTSD?

 155 13 MS. KARIS: Object to the form.

 155 14 Calls for expert opinion. Go ahead.

 155 15 A. Unfortunately there is a risk of

 155 16 suicide in veterans with untreated

 155 17 post-traumatic stress disorder. Also there

 155 18 is a risk associated with frequent divorce

 155 19 and inability to maintain a job because of

Re: [155:8-157:16]

Def Obj Relevance (401; 402); 

Improper Expert Opinion (702); leading

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 56 of 320
Ibrahim, A. 2020-09-23 7

 155 20 the anger outbursts and difficulty being in

 155 21 public or handling crowds.

 155 22 Also the use of substance use is

 155 23 very high, especially alcohol, in veterans

 156 1 with post-traumatic stress disorder. The

 156 2 most I have always seen are people coming

 156 3 seeking treatment because either they are

 156 4 facing divorce or they are getting fired

 156 5 from their jobs because of their anger.

 156 6 Q. So you diagnosed Dustin with PTSD,

 156 7 PTSD, true?

 156 8 A. Yes.

 156 9 Q. The fact that he was having issues

 156 10 with alcohol, that's consistent with people

 156 11 who have PTSD, true?

 156 12 MS. KARIS: Object to the form,

 156 13 foundation, calls for expert opinion. Go

 156 14 ahead.

 156 15 A. With a lot of them, yes.

 156 16 Q. In fact, you've seen that in your

 156 17 experience treating thousands of veterans

 156 18 over the years, haven't you?

 156 19 A. Yes.

 156 20 Q. And when you were -- when you were

 156 21 treating Dustin, did he come across as

 156 22 truthful to you?

 156 23 A. That is part of the mental status

 157 1 examination. The very last sentence is

 157 2 reliability, which is what I believe -- if I

 157 3 believe a patient is being truthful or not.

 157 4 So I indicated he had been adequate, which

 157 5 means I did not have a reason to believe

 157 6 otherwise.

 157 7 Q. Okay. You had no reason to

 157 8 disagree or to not believe what he was

 157 9 telling you, did you?

 157 10 A. Correct.

 157 11 MS. KARIS: Object to the form.

 157 12 Q. And when you were treating Dustin,

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 57 of 320
Ibrahim, A. 2020-09-23 8

 157 13 from all indications, he was -- he was

 157 14 motivated to get better, correct?

 157 15 MS. KARIS: Object to the form.

 157 16 A. Yes.

162:20 - 163:8 Ibrahim, A. 2020-09-23

 162 20 Q. You've already testified about

 162 21 this, but in your practice as a

 162 22 psychiatrist, are you aware of whether or

 162 23 not tinnitus can exacerbate PTSD?

 163 1 A. So it can exacerbate some of the

 163 2 symptoms, yes, especially the sleep.

 163 3 Q. Do you know whether or not Dustin

 163 4 was having trouble sleeping?

 163 5 A. That was one of the primary

 163 6 concerns that he had when he presented for

 163 7 treatment, and that is the reason he was

 163 8 prescribed the Trazodone.

163:9 - 163:13 Ibrahim, A. 2020-09-23

 163 9 Q. Based on your experience in

 163 10 treating patients with psychiatric problems,

 163 11 as well as tinnitus, do patients with

 163 12 tinnitus sometimes have trouble sleeping?

 163 13 A. Yes.

Re: [163:9-163:13]

Def Obj Improper Expert Opinion (702)

OVERRULED

163:14 - 163:15 Ibrahim, A. 2020-09-23

 163 14 MS. KARIS: Object to the form.

 163 15 Calls for expert opinion. Go ahead.

163:16 - 163:19 Ibrahim, A. 2020-09-23

 163 16 Q. And is that something you've

 163 17 witnessed over your career, treating

 163 18 patients who also have tinnitus?

 163 19 A. Yes.

Re: [163:16-163:19]

Def Obj Improper Expert Opinion (702)

OVERRULED

169:22 - 170:4 Ibrahim, A. 2020-09-23

 169 22 Q. So we have here from the VA

 169 23 records a diagnosis of tinnitus linked to

 170 1 the IED blast in April 2006, and also we

 170 2 have in your own practice, in your own

 170 3 treatment of Mr. McCombs a diagnosis of PTSD

 170 4 associated with that same blast, correct?

Re: [169:22-170:4]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 58 of 320
Ibrahim, A. 2020-09-23 9

169:22 - 170:7 Ibrahim, A. 2020-09-23

 169 22 Q. So we have here from the VA

 169 23 records a diagnosis of tinnitus linked to

 170 1 the IED blast in April 2006, and also we

 170 2 have in your own practice, in your own

 170 3 treatment of Mr. McCombs a diagnosis of PTSD

 170 4 associated with that same blast, correct?

 170 5 MS. KARIS: Object to the form and

 170 6 foundation.

 170 7 A. Yes.

GREY IS REMOVED/DUPLICATIVE

170:5 - 170:6 Ibrahim, A. 2020-09-23

 170 5 MS. KARIS: Object to the form and

 170 6 foundation.

170:7 - 170:7 Ibrahim, A. 2020-09-23

 170 7 A. Yes.

Re: [170:7-170:7]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 59 of 320
Love, T. 2020-10-02

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

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Love, T. 2020-10-02 2

Designation Objection RULINGS

7:17 - 7:19 Love, T. 2020-10-02

 7 17 Q. Good morning, Doctor. Could

 7 18 you please state your name for the record?

 7 19 A. Tiundra Love.

The Court notes that there is no 

objection to any of Dr. Love’s 

testimony based on the Court’s 

rulings to MIL G3 and G4

10:3 - 10:19 Love, T. 2020-10-02

 10 3 Q. Do you have an understanding

 10 4 as to why you're here today?

 10 5 A. Not really, but I've read the

 10 6 information.

 10 7 Q. Okay. What is your -- what is

 10 8 your understanding from the information that

 10 9 you've read?

 10 10 A. That I took care of a patient

 10 11 from a certain period of time who that

 10 12 particular patient has a -- a case that he has

 10 13 -- a situation regarding his tinnitus and

 10 14 hearing -- his hearing aids.

 10 15 Q. Yes, ma'am. Okay. Thank you.

 10 16 And is that patient that

 10 17 you're referring to, is his name Dustin McCombs?

 10 18 A. That's what the document

 10 19 stated.

17:17 - 17:20 Love, T. 2020-10-02

 17 17 Q. So from approximately 2014

 17 18 through August 2019, you were a doctor of

 17 19 osteopathy at the Chattanooga VA?

 17 20 A. Uh-huh.

18:7 - 18:10 Love, T. 2020-10-02

 18 7 Q. Have you always been a primary

 18 8 care doctor?

 18 9 A. Internal medicine,

 18 10 board-certified since 2012.

19:3 - 19:24 Love, T. 2020-10-02

 19 3 Q. Are you an audiologist?

 19 4 A. No, I am not.

 19 5 Q. Do you have any training or

 19 6 clinical experience in audiology?

 19 7 A. No, I do not.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 61 of 320
Love, T. 2020-10-02 3

 19 8 Q. Are you a psychiatrist?

 19 9 A. No, I am not.

 19 10 Q. Do you have any training or

 19 11 clinical experience as a psychiatrist?

 19 12 A. No, I do not.

 19 13 Q. Are you a psychologist?

 19 14 A. No, I am not.

 19 15 Q. Do you have any training or

 19 16 clinical experience as a psychologist?

 19 17 A. No, I do not.

 19 18 Q. Are you a mental health

 19 19 counselor?

 19 20 A. No, I am not.

 19 21 Q. Do you have any training or

 19 22 clinical experience as a mental health

 19 23 counselor?

 19 24 A. No, I do not.

21:6 - 21:14 Love, T. 2020-10-02

 21 6 How would you make notes of

 21 7 your visits when you saw a patient at the

 21 8 Chattanooga VA?

 21 9 A. Oh, we used CPRS, which is the

 21 10 system that they use. And then in the

 21 11 physician's notes, we make Physician Notes.

 21 12 Q. Is CPRS an electronic medical

 21 13 record system?

 21 14 A. Yes, it is, that the VA uses.

23:7 - 23:13 Love, T. 2020-10-02

 23 7 Q. So from 2015 through August of

 23 8 2019, you saw approximately 12 to 14, plus or

 23 9 minus, patients on an average day?

 23 10 A. Uh-huh.

 23 11 THE COURT REPORTER: Is that a

 23 12 "yes"?

 23 13 THE WITNESS: Yes. Sorry.

24:5 - 24:11 Love, T. 2020-10-02

 24 5 Q. So during that time period

 24 6 that you were at the Chattanooga VA, you were

 24 7 always a primary care physician?

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Love, T. 2020-10-02 4

 24 8 A. Yes. Part -- take that back.

 24 9 And I also did women's health. So I was

 24 10 certified to do the women's health, things for

 24 11 women's health.

24:12 - 24:20 Love, T. 2020-10-02

 24 12 Q. Could you help me understand

 24 13 what women's health is, as you understand it?

 24 14 A. So taking care of the women

 24 15 veterans who have women's health, as far as

 24 16 their bodies, things that's specific to women;

 24 17 preventative care, any type of care that needed

 24 18 to be maintained; referrals that needed to be

 24 19 referred to. So general/specific to women's

 24 20 care.

25:14 - 26:9 Love, T. 2020-10-02

 25 14 Q. At any time during your period

 25 15 at the Chattanooga VA, did you ever see a

 25 16 separate set of records other than the -- on any

 25 17 patient other than what's in the CPRS system?

 25 18 A. It had to be in the CPRS

 25 19 system. If there was outside records, they were

 25 20 scanned into the CPRS.

 25 21 Q. So for any given patient when

 25 22 you were at the Chattanooga VA, all records on

 25 23 that -- related to any one patient would be in

 25 24 the CPRS system?

 25 25 A. For the most part, yes.

 26 1 Q. Is there a -- you say "for the

 26 2 most part." Did -- what -- what could not be in

 26 3 there?

 26 4 A. Records that had not been

 26 5 scanned to the record yet.

 26 6 Q. And those would just be in

 26 7 line to be scanned. So at some point, they

 26 8 would be scanned in?

 26 9 A. Yes, that's correct.

35:18 - 36:6 Love, T. 2020-10-02

 35 18 Q. And you personally, as primary

 35 19 care physician, would have access to all of the

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 63 of 320
Love, T. 2020-10-02 5

 35 20 records on any patient within the

 35 21 Chattanooga VA?

 35 22 A. That's correct.

 35 23 Q. Can you picture

 35 24 Mr. Dustin McCombs as you sit here today?

 35 25 A. I don't really recall. I know

 36 1 the name is familiar to me. But if I read my

 36 2 notes, I could put him together, probably

 36 3 family, as how I related things -- the patient,

 36 4 the family, and usually refer things in my notes

 36 5 to that.

 36 6 But I don't recall.

40:24 - 42:6 Love, T. 2020-10-02

 40 24 Q. What treatment options are

 40 25 available for the treatment of tinnitus at the

 41 1 Chattanooga VA?

 41 2 A. So tinnitus is ringing of the

 41 3 ears, and it depends on the extent of that. You

 41 4 know, you send the patient to the -- what --

 41 5 you've got to figure out what the cause is

 41 6 first. Because there's several different

 41 7 causes. And from a stan- -- a medical

 41 8 standpoint. And then referring them to an

 41 9 audiologist to make sure that there's, you know,

 41 10 any hearing loss involved with it. So then I

 41 11 would refer them to the audiologist as well.

 41 12 So there's some things

 41 13 involved. Depends on what I think that the

 41 14 cause of the tinnitus is. And many times I

 41 15 refer them to Audiology anyway, because, based

 41 16 on where they've -- they've been deployed in the

 41 17 military, what they've been exposed to, they

 41 18 will get a consult to Audiology from -- you

 41 19 know, as -- I would do that.

 41 20 Q. And so is your standard

 41 21 practice that if one of your patients were to

 41 22 complain of tinnitus or ringing of the ears or

 41 23 something similar to tinnitus, and you believed

 41 24 that they would benefit from some sort of

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 64 of 320
Love, T. 2020-10-02 6

 41 25 treatment, you would refer them to Audiology?

 42 1 A. Yes. I would also work them

 42 2 up if I need to. Ringing of the ears has

 42 3 several different causes. And, you know, an ear

 42 4 infection may not require a referral to the

 42 5 audiologist, an acute ear infection from

 42 6 sinuses, for example.

42:7 - 43:1 Love, T. 2020-10-02

 42 7 Q. What other potential causes of

 42 8 tinnitus are you aware of?

 42 9 A. So there's several different

 42 10 causes of tinnitus. I mean, a person could have

 42 11 a tumor and have tinnitus.

 42 12 Q. What type of tumor?

 42 13 A. A cancer tumor, a benign

 42 14 tumor. The patient can have vertigo and -- for

 42 15 some reason from a metabolic cause. They could

 42 16 have ringing in the ears. So they could have,

 42 17 like I said, several different causes a patient

 42 18 can have tinnitus.

 42 19 They could also work in an

 42 20 environment -- and for me, that's a referral to

 42 21 the audiology -- where they didn't wear --

 42 22 didn't protect the ears or they had -- or they

 42 23 protected their ears, but they still -- and if I

 42 24 detected there's some hearing loss, too, on

 42 25 physical exam, they're going to go to the

 43 1 audiologist.

Re: [42:7-43:1]

Def Obj Undisclosed Expert Opinion

SUSTAINED

43:2 - 44:7 Love, T. 2020-10-02

 43 2 Q. Do you personally, without a

 43 3 consult with Audiology -- or did you, during

 43 4 your tenure at Chattanooga VA, treat tinnitus on

 43 5 your own?

 43 6 A. It depends on the cause.

 43 7 Q. Okay.

 43 8 A. And most of those, if it was

 43 9 based on metabolic, as far as like I said,

 43 10 sinuses, something I felt like that getting

 43 11 treated, there was no hearing loss related or

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 65 of 320
Love, T. 2020-10-02 7

 43 12 any other issues related, I could clear it up,

 43 13 yes. But for the most part, I would still refer

 43 14 them to the audiologist.

 43 15 Q. And what about if one of your

 43 16 patients you knew worked in an environment

 43 17 within the Army or the military in general, is

 43 18 that a -- a -- a situation in which you would

 43 19 always refer?

 43 20 A. Yes.

 43 21 Q. Do you have any training or

 43 22 clinical experience that would allow you to

 43 23 conclude medically that there is no

 43 24 connection -- or there is a connection between

 43 25 tinnitus and PTSD?

 44 1 A. No.

 44 2 Q. Do you have any training or

 44 3 clinical experience that would allow you to

 44 4 medically conclude that there is either -- or

 44 5 there is not a connection between tinnitus and

 44 6 sleep disorders?

 44 7 A. No.

48:15 - 49:6 Love, T. 2020-10-02

 48 15 Q. Okay. And the records that

 48 16 you just reviewed, Doctor, does it appear that

 48 17 you saw Mr. Dustin McCombs four times?

 48 18 A. Yes, that's what it appears to

 48 19 be, yes, from these notes.

 48 20 Q. And the first visit was

 48 21 October 23rd of 2015. Does that sound right?

 48 22 A. Yes.

 48 23 Q. And the second visit was

 48 24 November 18 of 2015?

 48 25 A. Yes.

 49 1 Q. And the third visit was April

 49 2 6th of 2016?

 49 3 A. Yes.

 49 4 Q. And the fourth visit was

 49 5 January 24th, 2018; is that correct?

 49 6 A. Yes.

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Love, T. 2020-10-02 8

49:19 - 50:7 Love, T. 2020-10-02

 49 19 So, Doctor, do you have in

 49 20 front of you medical records related to Dustin

 49 21 McCombs?

 49 22 A. Yes.

 49 23 Q. And what type of medical

 49 24 record is this, ma'am?

 49 25 A. It's a -- an Audiology CNP

 50 1 Examination consult.

 50 2 Q. And what is the date of it?

 50 3 A. November 7th, 2015.

 50 4 Q. And this was approximately two

 50 5 weeks after the first time you saw

 50 6 Mr. Dustin McCombs; is that correct?

 50 7 A. Yes. Yes.

50:23 - 51:2 Love, T. 2020-10-02

 50 23 Doctor, is it true that

 50 24 approximately nine days after the November 7th,

 50 25 2015 Audiology CNP, that you saw Mr. Dustin

 51 1 McCombs on November 18th, 2015?

 51 2 A. Yes.

51:9 - 51:13 Love, T. 2020-10-02

 51 9 Q. I'm asking would it -- because

 51 10 it was -- predated your November 18, 2015 visit,

 51 11 would those records have been within the CPRS

 51 12 system for Mr. Dustin McCombs?

 51 13 A. Yes.

51:14 - 51:18 Love, T. 2020-10-02

 51 14 Q. After reviewing your records

 51 15 here, are you aware that on November 7, 2015,

 51 16 the audiology department at the Chattanooga VA

 51 17 diagnosed Mr. McCombs with tinnitus?

 51 18 A. According to the records, yes.

53:15 - 53:24 Love, T. 2020-10-02

 53 15 So when you saw

 53 16 Mr. Dustin McCombs on November 18 of 2015, you

 53 17 were really seeing him for one particular

 53 18 reason, and that was the blood pressure?

 53 19 A. Right.

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Love, T. 2020-10-02 9

 53 20 Q. So as you sit here today, you

 53 21 don't have any recollection of talking to

 53 22 Mr. Dustin McCombs about his tinnitus diagnosis

 53 23 nine days earlier?

 53 24 A. I don't recall that.

56:7 - 56:11 Love, T. 2020-10-02

 56 7 Q. So because this audiologist

 56 8 was trained to diagnose tinnitus with patients

 56 9 at the Chattanooga VA, you trust that person's

 56 10 diagnosis, correct?

 56 11 A. Yes.

57:9 - 58:1 Love, T. 2020-10-02

 57 9 Q. I -- and I'm not asking you to

 57 10 dispute it. I just -- please understand. I'm

 57 11 just trying to make sure that I didn't miss

 57 12 anything when I was reading your records.

 57 13 And so what I'm trying to

 57 14 understand is have you seen anything in your

 57 15 written records today, that are before you, that

 57 16 would dispute in any way Mr. McCombs' diagnosis

 57 17 of tinnitus on November 7, 2015?

 57 18 MR. HILL: Object to form of

 57 19 the question.

 57 20 THE WITNESS: On the date of

 57 21 the visit, if you look at the Review of Systems,

 57 22 it says "Tinnitus," that it was denied.

 57 23 However, was the patient

 57 24 actively having symptoms at that time? That was

 57 25 not -- he did not tell me that. We was focused

 58 1 on the blood pressure.

Re: [57:9-58:1]

Def Obj Objection 611/403

OVERRULED

58:23 - 60:4 Love, T. 2020-10-02

 58 23 Q. On November 18, 2015, though,

 58 24 you would have had access to that November 7th,

 58 25 2015 Audiology report?

 59 1 A. Possibly if it was signed off

 59 2 in CPRS.

 59 3 Where is the time and date

 59 4 that was signed off by the audiologist?

 59 5 Q. So let's look on page 1411 of

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 68 of 320
Love, T. 2020-10-02 10

 59 6 the large set there, which would be the end of

 59 7 the Audiology report. Page 1411.

 59 8 A. (Witness complies.)

 59 9 Q. Do you see an eSignature of

 59 10 Jodee Pride Donaldson?

 59 11 A. Uh-huh.

 59 12 Q. And what is the date signed

 59 13 there?

 59 14 A. November the 7th, 2015.

 59 15 However, I did not see this

 59 16 note.

 59 17 Q. And I -- I understand that.

 59 18 But it was in the records, at least, signed and

 59 19 dated, prior to the November 18, 2015 visit,

 59 20 correct?

 59 21 A. As according to these notes,

 59 22 yes.

 59 23 Q. Do you have a reason to

 59 24 dispute the date there?

 59 25 A. No, I don't.

 60 1 Q. And that's an electronic

 60 2 signature, meaning that there's an electronic

 60 3 record of that within the CPRS system, correct?

 60 4 A. That's correct.

60:14 - 61:1 Love, T. 2020-10-02

 60 14 Q. I'd like to go to your -- your

 60 15 first visit of Mr. McCombs, which would be

 60 16 October 23rd, 2015, correct?

 60 17 A. What page is that?

 60 18 Q. It's 1422.

 60 19 A. Okay.

 60 20 Q. Do you have that in front of

 60 21 you?

 60 22 A. Yes.

 60 23 Q. Was this the first time that

 60 24 you saw Mr. Dustin McCombs?

 60 25 A. According to the notes, it

 61 1 states that I did.

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Love, T. 2020-10-02 11

61:15 - 62:3 Love, T. 2020-10-02

 61 15 And out to the right, you

 61 16 wrote: 26-Y-O presents for scheduled follow-up

 61 17 primary care visit.

 61 18 Is that accurate where it says

 61 19 this was a follow-up primary care visit?

 61 20 A. No.

 61 21 Q. So, in fact, this is the first

 61 22 visit that you saw Mr. Dustin --

 61 23 A. Right.

 61 24 Q. -- McCombs --

 61 25 A. Right.

 62 1 Q. -- as indicated under the HPI

 62 2 section?

 62 3 A. Right.

62:12 - 65:11 Love, T. 2020-10-02

 62 12 Q. Could we go to the next page,

 62 13 please, 1423, where it starts: Review of

 62 14 Symptoms [sic].

 62 15 A. (Witness complies.)

 62 16 Q. Do you see that?

 62 17 A. Correct.

 62 18 Q. Under Review of Symptoms [sic]

 62 19 --

 62 20 A. Systems.

 62 21 Q. I'm sorry. Thank you.

 62 22 Under Review of Systems, it

 62 23 starts General and then it says: Skin, Head,

 62 24 Eyes, and it goes all the way down through

 62 25 Psychiatric.

 63 1 Do you see that?

 63 2 A. Uh-huh.

 63 3 Q. Is that section there part of

 63 4 your template?

 63 5 A. Yes.

 63 6 Q. And so that's something that

 63 7 would auto-populate as a result of you adding

 63 8 your template to a particular visit?

 63 9 A. Yes. However, those patients

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 70 of 320
Love, T. 2020-10-02 12

 63 10 at that particular time aren't having any

 63 11 symptoms of anxiety when he presented to me.

 63 12 Not a diagnosis, a symptom.

 63 13 Q. Okay.

 63 14 A. It's a Review of Systems.

 63 15 Q. Correct. And I -- I

 63 16 understand that. What -- what I'm -- what I'm

 63 17 asking is, is what is in here under Review of

 63 18 Systems, all the way down to Psychiatric, is

 63 19 that language in there part of your template, or

 63 20 do you type out each and every word of those

 63 21 during each visit?

 63 22 A. It's on the template.

 63 23 Q. Do you ask during each visit,

 63 24 each patient --

 63 25 A. This is a new patient visit.

 64 1 Yes, I do.

 64 2 Q. So you would have asked --

 64 3 A. Yes.

 64 4 Q. Let me finish my question,

 64 5 please.

 64 6 You would have asked each and

 64 7 every question listed here? For example, you

 64 8 would have asked whether he had weight change?

 64 9 A. Uh-huh.

 64 10 Q. Fatigue?

 64 11 A. Uh-huh.

 64 12 Q. Weakness?

 64 13 A. Uh-huh.

 64 14 Q. Fever?

 64 15 A. Uh-huh.

 64 16 Q. Chills?

 64 17 A. Uh-huh.

 64 18 Q. You would have done that for

 64 19 each and every one of these things?

 64 20 A. For a new patient, yes.

 64 21 Q. Okay. So if this exact

 64 22 language under Review of Systems, all the way

 64 23 down to Psychiatric appears exactly the same in

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 71 of 320
Love, T. 2020-10-02 13

 64 24 each of your four visits, yet at times under

 64 25 your HPI, you indicate something contradictory,

 65 1 which one should we re- -- which one should we

 65 2 rely upon?

 65 3 A. Where are you seeing

 65 4 contradictory? Repeat the question.

 65 5 Q. Sure. We can -- we can get to

 65 6 that.

 65 7 Help me understand. When

 65 8 you're doing a Review of Systems, that does not

 65 9 indicate that there's been a diagnosis of any of

 65 10 these particular issues in the past, correct?

 65 11 A. Correct.

65:12 - 65:18 Love, T. 2020-10-02

 65 12 Q. So it would not be

 65 13 contradictory if Mr. Dustin McCombs had had a

 65 14 prior diagnosis of tinnitus, yet on a subsequent

 65 15 visit, for example, the November 18, 2015 visit,

 65 16 you indicate that Mr. Dustin McCombs denies

 65 17 tinnitus?

 65 18 A. Right.

Re: [65:12-65:18]

Def Obj Objection 701

OVERRULED

65:19 - 66:1 Love, T. 2020-10-02

 65 19 MR. HILL: Object to the form

 65 20 of that question.

 65 21 BY MR. BARTLETT:

 65 22 Q. Did you see anything in the

 65 23 records that you reviewed today that indicated

 65 24 Mr. Dustin McCombs' tinnitus was the result of

 65 25 an earache?

 66 1 A. No, I did not see that.

68:5 - 68:10 Love, T. 2020-10-02

 68 5 Q. And based upon this record, is

 68 6 it true that Jodee Donaldson determined that:

 68 7 "The veteran's tinnitus seems as likely as not

 68 8 caused by or a result of military noise

 68 9 exposure?"

 68 10 A. That's what she assessed.

Re: [68:5-68:10]

Def Obj Foundation; hearsay; calls for 

expert opinion

70:14 - 71:1 Love, T. 2020-10-02

 70 14 Dr. Love, do you, in your

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 72 of 320
Love, T. 2020-10-02 14

 70 15 mind, as you sit here today, have any reason,

 70 16 any facts, any evidence, anything at all to

 70 17 dispute the assessment that Jodee Pride

 70 18 Donaldson made on November 7th, 2015?

 70 19 A. No.

 70 20 Q. As you sit here today, is

 70 21 there anything in the records on Dustin McCombs

 70 22 that would provide any evidence or information

 70 23 that would permit you to dispute the assessment

 70 24 Jodee Pride Donaldson made on November 7 of

 70 25 2015?

 71 1 A. No.

71:10 - 71:18 Love, T. 2020-10-02

 71 10 Dr. Love, you are not here to

 71 11 tell the jury that Dustin McCombs does not have

 71 12 tinnitus, correct?

 71 13 A. I'm not here to say that.

 71 14 Q. And you're also not here to

 71 15 tell the jury that Dustin McCombs does not have

 71 16 PTSD, correct?

 71 17 A. That's correct. It's in his

 71 18 -- his records that he has it.

73:14 - 73:17 Love, T. 2020-10-02

 73 14 Q. Is it your understanding that

 73 15 that is a Service-connected assessment for

 73 16 tinnitus for doctor -- for Dustin McCombs?

 73 17 A. Yes.

Re: [73:14-73:17]

Def Obj Foundation; hearsay; calls for 

expert opinion

OVERRULED

74:2 - 74:7 Love, T. 2020-10-02

 74 2 Q. And when it's

 74 3 Service-connected, does that mean it is not

 74 4 related to an acute issue such as you mentioned

 74 5 earlier, from an earache or some other

 74 6 nonmilitary-related issue?

 74 7 A. Correct.

79:2 - 79:16 Love, T. 2020-10-02

 79 2 Q. Yeah, my question is -- my

 79 3 question is do you ask the patient when you

 79 4 first see them if they have any particular

 79 5 problems that they want to bring to your

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Love, T. 2020-10-02 15

 79 6 attention? And in your notes it says that he

 79 7 denies this problem. I believe that's first in

 79 8 that -- that examination, correct?

 79 9 A. Right, he's in --

 79 10 MR. BARTLETT: Objection.

 79 11 THE WITNESS: That's correct.

 79 12 But he also -- you look at the Review of

 79 13 Systems. He was a new patient, probably getting

 79 14 to know me at the time. And many times they're

 79 15 not always -- depending on whatever is going on

 79 16 with them -- bring up everything to light.

83:7 - 84:4 Love, T. 2020-10-02

 83 7 If you could, look a little

 83 8 down further in your notes where it has: "PMH."

 83 9 Do you see that?

 83 10 A. (Witness reviews documents.)

 83 11 Q. It's right under that

 83 12 paragraph that we were just looking at.

 83 13 A. Past medical history. Past

 83 14 medical history.

 83 15 Q. All right. And when you put

 83 16 "None" in there, does that indicate that you've

 83 17 thoroughly gone over with -- the patient's past

 83 18 medical history and he's had nothing in his past

 83 19 that concerned you?

 83 20 A. And he didn't tell me that.

 83 21 He didn't tell the nurse either. And --

 83 22 Q. Okay.

 83 23 A. At that time. This was my

 83 24 first visit. And many times, you know, these

 83 25 patients will come and they have coronary artery

 84 1 disease or a bypass and they didn't -- they

 84 2 don't con- -- they may not know to understand

 84 3 what they're diagnoses are or they don't think

 84 4 to say that.

85:4 - 85:18 Love, T. 2020-10-02

 85 4 So right below that, what is

 85 5 "PSH"?

 85 6 A. Past surgical history.

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Love, T. 2020-10-02 16

 85 7 Q. And it says "None," right?

 85 8 A. Right.

 85 9 Q. Okay. In your experience, if

 85 10 somebody's had surgery, do they generally tend

 85 11 to remember it unless they've had a lot of

 85 12 surgery and can't remember specifically?

 85 13 A. Yeah, some -- some did and

 85 14 some could have a simple knee surgery and don't

 85 15 think -- and forget to say they had a knee

 85 16 surgery. And it's not till I do a physical exam

 85 17 and see the scar, and they're like: "Oh, yeah,

 85 18 I forgot about that."

90:14 - 90:24 Love, T. 2020-10-02

 90 14 Q. And do you ask them about

 90 15 whether or not they're having any ringing in

 90 16 their ears or any tinnitus?

 90 17 MR. BARTLETT: Object to form.

 90 18 THE WITNESS: Yes, sir, I do.

 90 19 But it's at that -- not at that specific --

 90 20 specific time. When I look in the ear in

 90 21 particular, if there's some abnormality of the

 90 22 ear, having problems hearing, you know,

 90 23 discharge, pain, so forth. At that particular

 90 24 time.

125:17 - 126:2 Love, T. 2020-10-02

 125 17 Q. I'm -- I'm asking you about

 125 18 his denial of any symptoms for his ears. And I

 125 19 think it says: He denies hearing loss,

 125 20 tinnitus, vertigo, discharge or ear pain. Is

 125 21 that correct?

 125 22 MR. BARTLETT: Object to form.

 125 23 THE WITNESS: That's correct,

 125 24 based on that day of a walk-in. Not a history

 125 25 of he denied that. Again, this was related to

 126 1 his blood pressure. Again.

 126 2 BY MR. HILL:

126:3 - 127:6 Love, T. 2020-10-02

 126 3 Q. Understood.

 126 4 But in that taking of the

Re: [126:3-127:6]

Def Obj 602/701

OVERRULED

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 75 of 320
Love, T. 2020-10-02 17

 126 5 history -- or the taking of the Review of sym-

 126 6 -- Systems that you told us about that you walk

 126 7 through with your patient --

 126 8 A. This --

 126 9 Q. -- at --

 126 10 A. -- is --

 126 11 Q. -- that --

 126 12 A. -- review --

 126 13 Q. -- point -- at that point for

 126 14 that exam he was denying that?

 126 15 A. -- at the re- --

 126 16 MR. BARTLETT: Object to form.

 126 17 THE WITNESS: -- Review of

 126 18 Systems at that time.

 126 19 BY MR. HILL:

 126 20 Q. Right.

 126 21 A. Probably so focused on --

 126 22 Q. And his --

 126 23 MR. BARTLETT: Go ahead,

 126 24 Doctor. You can finish what you're saying.

 126 25 THE WITNESS: He was probably

 127 1 so focused on his blood pressure and his anxiety

 127 2 that many times patients can get -- there could

 127 3 be other things going on, but they forget to say

 127 4 it or they don't -- they don't remember it.

 127 5 He -- this was a walk-in

 127 6 dealing with his blood pressure and his anxiety.

158:11 - 158:15 Love, T. 2020-10-02

 158 11 Q. And on that visit, in

 158 12 particular, was Mr. McCombs denying any

 158 13 tinnitus?

 158 14 A. Yes. We was focused on the

 158 15 blood pressure.

161:14 - 162:9 Love, T. 2020-10-02

 161 14 Q. Okay. Under your Alcohol

 161 15 Dependency and Anxiety, there's a notation of

 161 16 Wellbutrin 100 milligrams. What is that?

 161 17 A. Okay. So he was prescribed --

 161 18 and this has to come from the Mental Health, for

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 76 of 320
Love, T. 2020-10-02 18

 161 19 a -- the anx- -- the depression/anxiety,

 161 20 anxiety, and -- and Trazodone to help him sleep.

 161 21 And there, again, to comment on this, I would

 161 22 need the Mental Health notes of the provider who

 161 23 prescribed and the reason for what they

 161 24 prescribed it for, the specific reason for him.

 161 25 Q. What is (technical

 162 1 interference) -- I'm sorry.

 162 2 What is the notation that's

 162 3 immediately after the Wellbutrin 100 MG, those

 162 4 two letters? Looks like "QT" maybe?

 162 5 A. Yes, daily.

 162 6 Q. Daily? Okay.

 162 7 And then Trazodone?

 162 8 A. It's something -- it's an

 162 9 antipsychotic to help patients sleep.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 77 of 320
DEFENDANTS’ AFFIRMATIVE 

DESIGNATIONS

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 78 of 320
Preserved Objections Previous Rulings New Objections Rulings

11:03 - 11:06 Battler, Leanne (2020-09-10) 0:10

11:03 Q. Good morning. Would you identify

11:04 yourself for the jury, please.

11:05 A. My name is Lieutenant Colonel

11:06 Leanne Marie Battler.

15:13 - 16:06 Battler, Leanne (2020-09-10) 1:49

15:13 Q. Why don't you start with -- start

15:14 with college. You attended Brock University?

15:15 A. Yes, I did. Yes. I graduated in

15:16 1989.

15:17 Q. And after that, you attended SUNY

15:18 Buffalo where you obtained a doctor of

15:19 audiology?

15:20 A. Yes, that's correct.

15:21 Q. Any other formal education?

15:22 A. In between there, I went to -- I

15:23 attended Georgian College in Orillia, Ontario,

15:24 graduated in 1991 as an audiometric technician.

15:25 Q. Okay.

16:01 A. And then worked in Toronto for

16:02 several years, and then overseas before I went

16:03 back to get my doctorate.

16:04 Q. Okay. Are you currently licensed

16:05 as an audiologist?

16:06 A. Yes.

16:10 - 16:18 Battler, Leanne (2020-09-10) 1:30

16:10 Q. Approximately when did you become Re: [16:10 to 16:18] Re: [16:10 to 16:18]

16:11 licensed? Pltf Obj Improper bolstering, SUSTAINED

16:12 A. 2004. 402/403, improper attempt to

16:13 Q. Are you a member of any qualify lay witness as expert

16:14 professional associations or groups?

16:15 A. Yes. ASHA, American Speech and

16:16 Hearing Association, and the Military Audiology

16:17 Association, National Hearing Conservation

16:18 Association, and American Academy of Audiology.

16:25 - 20:06 Battler, Leanne (2020-09-10) 5:19

16:25 Q. Could you -- When did you join Re: [16:25 to 20:06] Re: [16:25 to 20:06]

17:01 the Army? Pltf Obj Improper bolstering, SUSTAINED as to

17:02 A. 2003. I was commissioned as a 402/403, improper attempt to testimony regarding Battler's

17:03 green card holder. qualify lay witness as expert opinion about Dr. Ohlin (and

17:04 Q. Could you give the jury an (702), 611 leading, 701, 802 her husband's comments to Dr.

17:05 overview of your career in the Army and the Ohlin), 402 & 403; OVERRULED

17:06 role that you played over the years in the in all other respects,

17:07 Army? regarding Battler's opinion,

17:08 A. In 2003, I was commissioned as a about Dr. Ohlin (and her,

17:09 fourth-year intern at the older Walter Reid husband's comments to Dr.,

17:10 Army Medical Center, so I was commissioned as a Ohlin), 402 & 403; OVERRULED,

Designations

*97:15-18, 125:7-126:1, 162:6-18, 229:4-230:2, and 244:9-12 are portions of the Battler deposition that were played at the first trial and that Defendants believe may be excluded by the Court’s ruling at the Pretrial Conference 

relating to the Battler deposition and personal use . 

Page 1 of 77

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 79 of 320
17:11 first lieutenant; and at the conclusion of that in all other respects

17:12 year, I was moved to Fort Hood, Texas; I was

17:13 there as the Army Hearing Program manager until

17:14 2006, and that's where I also got my ASHA

17:15 certificate of clinical competence and my

17:16 license.

17:17 Then from 2006 to 2010, '11, I

17:18 was at Fort Carson in Colorado, I was the Army

17:19 Hearing Program manager. During that time I

17:20 deployed to Iraq for five months, in 2008, it

17:21 was from March to July 2008, as the brigade

17:22 audiologist individual augment team.

17:23 Then in 2011, I moved to Fort

17:24 Richardson, Alaska; en route I stopped at Fort

17:25 Benning and became a paratrooper; after Alaska,

18:01 so 2012 to 2016, then I moved to Germany and

18:02 was the Regional Army Hearing Program

18:03 consultant, until 2018; at which time I came

18:04 back to DC.

18:05 Q. And what are your duties

18:06 currently?

18:07 A. I'm a staff audiologist.

18:08 Q. Okay. You indicated that you, in

18:09 2003, if I understood correctly, you were a

18:10 third- or fourth-year intern; is that correct?

18:11 A. Yes.

18:12 Q. Okay. And so does that mean that

18:13 your internship had started earlier?

18:14 A. So for the doctor of audiology

18:15 degree the requirement is a four-year

18:16 postgraduate degree which incorporates two

18:17 thousand clinical hours. So the first thousand

18:18 are acquired during the first three years

18:19 concurrently with academics, and then the

18:20 fourth year is that final one thousand clinical

18:21 hours. So I was commissioned as a first

18:22 lieutenant because I did not have the doctoral

18:23 degree yet.

18:24 Q. Understood. In your

18:25 authorization, there is a mention of a 2001

19:01 internship with the Army Hearing Program. Can

19:02 you describe what that is?

19:03 A. Yes. So I was still a student at

19:04 SUNY Buffalo; and during the summer of 2001 I

19:05 married an American soldier, Richard Cleveland,

19:06 who was stationed at Aberdeen Proving Ground at

19:07 the time. So, yeah, we got married, and we

19:08 were at Aberdeen. And actually, my husband

19:09 called the CHPPM and spoke with Dr. Ohlin and

19:10 said: My wife thinks you're a God and would

19:11 love to work with you. And I had an interview,

19:12 and, yeah, I spent the summer working there.

19:13 Q. Okay. Did you hold Dr. Ohlin in

19:14 high regard?

Page 2 of 77

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19:15 A. Yes. Very high regard.

19:16 Q. And why did you hold Dr. Ohlin in

19:17 high regard?

19:18 A. Probably because -- Because I

19:19 also -- One of my instructors at SUNY Buffalo

19:20 was Donald Henderson, who also mentioned a lot

19:21 of the work of Dr. Ohlin during my class as his

19:22 student.

19:23 Q. And did you regard Dr. Ohlin,

19:24 from your interaction with him, as competent at

19:25 the tasks he performed?

20:01 A. (Witness nods head in the

20:02 affirmative.)

20:03 Q. You have to answer audibly yes or

20:04 no for the videographer.

20:05 A. Oh, yes. Yes. Very, very

20:06 competent.

20:21 - 24:24 Battler, Leanne (2020-09-10) 6:00

20:21 Q. Why don't you start with your Re: [20:21 to 24:24] Re: [20:21 to 24:24]

20:22 duties during the internship. Pltf Obj Improper bolstering, OVERRULED, but will

20:23 A. Right. So at Aberdeen, with Dr. 402/403, improper attempt to give, limiting instruction as

20:24 Ohlin? qualify lay witness as expert to the, witness's status as a

20:25 Q. Yes. (702), 611 leading, 701, 802 lay witness

21:01 A. So primarily, it was -- I worked

21:02 with, at the time, Major Cheryl Cameron, who

21:03 has since retired. We did a lot of CAOC

21:04 courses, so the technician training,

21:05 troubleshooting with the events in CCA, DOEHRS

21:06 audiometers; some work with Leanne Demanico,

21:07 helping her with the DOEHRS system, again.

21:08 I sat in on a health hazard

21:09 assessment team, we did noise measurements out

21:10 in the field, I prepared briefings. I did

21:11 basically anything I was asked to do. But at

21:12 some -- even some patient care, we did go over

21:13 to the occupational health clinic a few times

21:14 and do some patient testing.

21:15 Q. And did you do some work with the

21:16 Combat Arms Version 2 during your internship?

21:17 A. Not work, as much as just I

21:18 learned about them and -- and I took several

21:19 back to SUNY Buffalo where I did an independent

21:20 study using them.

21:21 Q. What did you learn about the

21:22 Combat Arms Version 2 during your 2001

21:23 internship?

21:24 A. That they were the first

21:25 nonlinear earplug that I had ever heard of, and

22:01 -- and pretty -- pretty cool.

22:02 Q. And why do you describe them as

22:03 pretty cool?

22:04 A. Because they allowed the wearer

22:05 to hear things, I think -- Well, I know that

Page 3 of 77

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22:06 one of the reasons why people reject hearing

22:07 protection is because of the fear of being

22:08 overattenuated and not being able to hear

22:09 things that could cost their own life or limb.

22:10 Q. And why is that a concern in the

22:11 military?

22:12 A. Because you need to hear -- You

22:13 need to hear the bad guys. Hearing is a -- is

22:14 a three-hundred-and-sixty-degree,

22:15 twenty-four-hour awareness. So if you can't

22:16 hear what's going on around you, then -- then

22:17 you're a liability.

22:18 Q. Have you worn the Combat Arms

22:19 Version 2 yourself?

22:20 A. Yes.

22:21 Q. And did you have any trouble

22:22 fitting the Combat Arms Version 2 in your ear?

22:23 A. I fortunately have very average

22:24 size ear canals, so they did fit me well.

22:25 Q. Great. Did you need to roll back

23:01 the flanges to fit the Combat Arms Version 2 in

23:02 your ear?

23:03 A. No.

23:04 Q. And when you fit the Combat Arms

23:05 Version 2 in your ear, did they maintain their

23:06 seal?

23:07 A. Yes.

23:08 Q. When you fit the Combat Arms

23:09 Version 2 in your ear, did they provide you

23:10 with adequate hearing protection?

23:11 A. Yes.

23:12 Q. Would -- Would you wear the

23:13 Combat Arms Version 2 today based on what you

23:14 know?

23:15 A. Yes.

23:16 Q. Have you also fit other

23:17 individuals with the Combat Arms Version 2?

23:18 A. Yes.

23:19 Q. And am I correct that, as with

23:20 other preformed earplugs, the regulations

23:21 require a medically trained personnel to

23:22 provide the initial fit?

23:23 A. Yes.

23:24 Q. And why is it that the

23:25 regulations require that a preformed earplug be

24:01 trained (sic) by medically trained personnel?

24:02 A. Because they come in different

24:03 sizes, and ears come in different sizes. And

24:04 the fact that it's preformed means it's -- it's

24:05 not adjustable, like the foam plugs -- Even the

24:06 foam plugs are not one-size-fits-all. There's

24:07 -- That was the one thing that Doug said

24:08 constantly is, if you remember one thing,

24:09 remember there's no such thing as one size fits

Page 4 of 77

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 82 of 320
24:10 all.

24:11 Q. And were there -- Were there

24:12 certain service members who the -- when you

24:13 were doing your work fitting the Combat Arms

24:14 Version 2 did not fit?

24:15 A. Yes.

24:16 Q. And in instances where you were

24:17 fitting a service member for whom the Combat

24:18 Arms Version 2 did not fit, what would you do

24:19 then?

24:20 A. Then we would go to the

24:21 traditional triple-flange, size small or large,

24:22 you know, whatever was appropriate. And then

24:23 if I had funding, I would take impressions to

24:24 do custom hearing protection at that time.

25:06 - 25:17 Battler, Leanne (2020-09-10) 1:41

25:06 Let's go to page 67, at the bottom. The bottom Re: [25:06 to 25:17] Re: [25:06 to 25:17]

25:07 right right now, it says 55. And let's mark Pltf Obj 402/403 - 87 page SUSTAINED

25:08 this as the next exhibit, which is Exhibit newsletter document contains

25:09 Number 1. various other stories that are

25:10 Do you recognize this document, wholly irrelevant and include

25:11 Lieutenant Colonel Cleveland? hearsay 802-As to the Fort

25:12 A. Yes. Carson story itself, includes

25:13 Q. Can you tell the jury what it is? speculation and

25:14 A. This is my paper. generalizations about Military

25:15 Q. And what's the title? habit/compliance that should

25:16 A. Fort Carson, An Army Hearing be excluded under 406.

25:17 Program Success Story.

25:21 - 27:22 Battler, Leanne (2020-09-10) 3:54

25:21 Q. Do you recognize the diagram,

25:22 Figure 3, at the top of page 70?

25:23 A. Yes.

25:24 Q. And does that -- Does that help

25:25 to illustrate some of your duties as an

26:01 audiologist?

26:02 A. Yes.

26:03 Q. Can you describe, in summary

26:04 form, how?

26:05 A. So the Army Hearing Program has

26:06 four main components: Hearing readiness,

26:07 operational hearing services, clinical hearing

26:08 services, and hearing conservation. So this

26:09 diagram was to describe hearing readiness,

26:10 which is designed for soldiers, rather than

26:11 noise-exposed civilians who would be in a

26:12 traditional OSHA-type hearing conservation

26:13 program.

26:14 So the first thing that we always

26:15 did was the otoscopic examination, which is

26:16 looking in the ear canal to determine after why

26:17 kind of -- you can tell just by looking at the

26:18 ear canal what size of hearing protection the

Page 5 of 77

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26:19 person was going to require.

26:20 We're also looking to see if we

26:21 can visualize the tympanic membrane and make

26:22 sure that there's no active pathology before we

26:23 would fit them with the hearing protector.

26:24 If the ear canals were clear, we

26:25 would continue with the earplug fitting. If we

27:01 could not visualize the tympanic membrane, we

27:02 would send the soldier to have their ears

27:03 cleaned out.

27:04 And then after -- Going back to

27:05 the earplug fitting, we would pull them -- pull

27:06 up their hearing health record in the DOEHRS

27:07 database and MEDPROS, and we would determine,

27:08 you know, does this person already have a

27:09 hearing loss, do they have normal hearing, so

27:10 we have some idea what to expect; and also

27:11 we'll be able to tell if there's been a

27:12 significant change in the hearing test that

27:13 we're about to do.

27:14 Then we would test the hearing.

27:15 If there was a STS, or significant threshold

27:16 shift, then we would tell them they needed to

27:17 retest no sooner than twenty-four hours, and no

27:18 later than thirty days; then if there was no

27:19 STS, we would update the records, say you're

27:20 good to go. But the most important part was

27:21 always the earplug fitting and the hearing

27:22 health education.

33:11 - 34:13 Battler, Leanne (2020-09-10) 2:48

33:11 Q. Okay. Could you summarize the Re: [33:11 to 34:13] Re: [33:11 to 34:13]

33:12 conclusion of your article: Fort Carson, An Pltf Obj 402/403 prejudicial SUSTAINED

33:13 Army Hearing Program Success Story for the generalizations about Military

33:14 jury? practices; 404/406 improper

33:15 A. Right. So basically, the habit/character

33:16 regulation had said, for quite some time, that generalizations on Military;

33:17 the military audiologist should spend no more 701 and 602 improper

33:18 than 50 percent of their time involved patient generalizations; 802

33:19 care, and the rest of the time we should be out

33:20 there doing the training and the inspections

33:21 and the evaluations to prevent hearing loss.

33:22 But the problem was, with

33:23 hospital commanders, typically, seeing us as

33:24 REU generating potential, were reluctant to

33:25 release us from our clinical obligation 50

34:01 percent of the time.

34:02 And so I started this whole

34:03 project as a quality assurance project. And I

34:04 believe that it showed that by releasing me,

34:05 and the other audiologists, by assigning a

34:06 second military audiologist to Fort Carson, we

34:07 still, between the two of us, seeing patients

34:08 50 percent of the time, were still able to

Page 6 of 77

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 84 of 320
34:09 maintain the prior 100 percent clinical

34:10 mission, while simultaneously preventing

34:11 hearing loss and drastically reducing the

34:12 amount of hearing loss while we were an Army at

34:13 war.

34:25 - 35:22 Battler, Leanne (2020-09-10) 1:16

34:25 Model, which said you need one audiologist and Re: [34:25 to 35:22] Re: [34:25 to 35:22]

35:01 2.5 technicians for every 18,000 soldiers, that Pltf Obj 701 and 602; improper SUSTAINED 602; 701;

35:02 was in the era of paper medical charts. lay witness opinions; 802

35:03 MR. MONSOUR: Objection. speculation; 403; 802; cut

35:04 Responsiveness. This calls for an expert includes Nomellini sidebar

35:05 opinion beyond the scope of the Touhy. testimony that he's 'limiting

35:06 Q. You can proceed. to her personal capacity'

35:07 MAJ WALD: Ma'am, you're not

35:08 allowed to elicit expert testimony. Please

35:09 don't answer the question.

35:10 Q. Can you just answer based on

35:11 your -- just based on your personal experience?

35:12 MR. MONSOUR: Objection. Still

35:13 calls for an expert opinion, regardless of

35:14 whether personal or not.

35:15 MAJ WALD: Ma'am, please don't

35:16 answer the question.

35:17 THE WITNESS: Understood.

35:18 MR. NOMELLINI: Okay. Major

35:19 Wald, I am limiting it to her personal

35:20 experience. I may -- We may need to ask the

35:21 Court for assistance regarding this. But for

35:22 now I will go to another part of the document.

37:01 - 38:14 Battler, Leanne (2020-09-10) 3:33

37:01 Could you read the next two Re: [37:01 to 38:14] Re: [37:01 to 38:14]

37:02 paragraphs on page 70 of your article. I Pltf Obj Speculation; 701 and SUSTAINED 602; 701;

37:03 should start with -- Start with the next 602 improper lay witness 802

37:04 paragraph, beginning with: The initial group. opinion; improper

37:05 A. The initial group of soldiers who generalizations about Military

37:06 were deployed to the first cycle of Operation practices, 403, 406,

37:07 Iraqi Freedom did so without the Combat Arms cumulative/doc speaks for

37:08 earplugs, which are currently a Rapid Fielding itself

37:09 Initiative issue to all deploying soldiers.

37:10 The Combat Arms earplugs allow low-level

37:11 sounds, such as speech, to pass through

37:12 unimpeded. The nonlinear filter in the Combat

37:13 Arms earplug dampens high-level impulse noise

37:14 such as weapons fire. As with all earplugs,

37:15 proper size and fit are crucial. During the

37:16 initial deployments for the Global War on

37:17 Terror, the Combat Arms earplug, and

37:18 conventional earplugs for soldiers were often

37:19 not available, not wanted, or not fitted

37:20 properly, which resulted in the dramatic STS

37:21 increase in 2003.

37:22 Q. Thank you. So one of the

Page 7 of 77

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37:23 sentences that you just read says: As with all

37:24 earplugs, proper size and fit are crucial.

37:25 Based on your -- Based on your personal

38:01 experience, is that true both for the Combat

38:02 Arms and other earplugs?

38:03 A. Yes.

38:04 Q. And why is that true, that proper

38:05 size and fit are crucial?

38:06 A. Because no two ears are the same.

38:07 Q. What could happen, in your

38:08 personal experience with service members, if

38:09 there is not proper size and fit?

38:10 A. Well, then -- Then they won't --

38:11 They won't protect the soldier as optimally as

38:12 they could.

38:13 Q. And in your experience, who had

38:14 the responsibility for ensuring proper fit?

38:24 - 39:07 Battler, Leanne (2020-09-10) 1:39

38:24 A. Well, if I gave you a Kevlar

38:25 helmet that was two sizes too big or two sizes

39:01 too small, it wouldn't protect you.

39:02 Q. Is the same true of earplugs like

39:03 the Combat Arms earplug?

39:04 A. Absolutely.

39:05 Q. In your view, who had

39:06 responsibility for ensuring that the Combat

39:07 Arms earplugs were fitted proper?

39:17 - 43:05 Battler, Leanne (2020-09-10) 5:19

39:17 A. I mean, ultimately, the final Re: [39:17 to 43:05] Re: [39:17 to 43:05]

39:18 responsibility comes down to the soldier. Pltf Obj Speculation; 701 and OVERRULED 701

39:19 Q. And why do you say the final 602 improper lay witness

39:20 responsibility comes down to the soldier? opinion; improper

39:21 A. We fit the earplug, we tell you generalizations about Military

39:22 how to wear the earplug, but if the soldier practices, 402/403, 404/406;

39:23 chooses not to use the earplug, then that's 802

39:24 their choice -- or not to use it in the way

39:25 that we have trained them to.

40:01 Q. Okay. So with respect to your

40:02 personal experience with the Combat Arms

40:03 earplug, how did you train the soldiers to use

40:04 the earplug?

40:05 A. At the SRP site, when they came

40:06 through for their predeployment hearing test,

40:07 after we looked in the ear, we would give

40:08 everyone a set of size medium, regular sheath,

40:09 triple-flange or quad-flange earplugs, and then

40:10 we would train them all to use their opposite

40:11 hand, you know, pull the ear up and back, twist

40:12 and push, until the -- the final flange, the

40:13 third or fourth flange, was flush with the

40:14 opening of the ear canal. Then we would tell

40:15 them to do a tug test to make sure they felt

Page 8 of 77

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40:16 some suction or resistance. Then we would do

40:17 an additional tug test to say yes, you have

40:18 adequate suction or resistance, then we would

40:19 make them do the other ear.

40:20 And once we determined that they

40:21 were either a size medium or small or large,

40:22 with the cheap earplugs, then we would try the

40:23 Combat Arms earplug, and do the same thing,

40:24 pull -- reach with your opposite hand, pull the

40:25 ear up and back, twist and push, do the tug

41:01 test, both ears, because often one ear canal is

41:02 bigger than the other. So just because you're

41:03 a size medium in one ear, doesn't mean you're

41:04 going to be a size medium in both ears.

41:05 And right then -- I mean, it was

41:06 a pretty intense process.

41:07 Q. And in your personal experience

41:08 with these different kinds of earplugs, did you

41:09 give service members the choice among the

41:10 various earplugs or was it the case that they

41:11 had to use a certain earplug, or did it vary?

41:12 A. So we would actually -- Because

41:13 we fitted them to determine the initial

41:14 size-ish, get a good estimate what size Combat

41:15 Arms earplug they would be, and we fitted them

41:16 with the regular, inexpensive triple or

41:17 quad-flange, then they would have those pair.

41:18 So we give them the -- so linear hearing

41:19 protection and a case, plus the nonlinear

41:20 hearing protection and a case.

41:21 So I guess they had -- Initially,

41:22 there was only one Combat Arms earplug, but

41:23 then when the version with the pistol came out,

41:24 then some people preferred that -- they called

41:25 them the bumblebees, the yellow and olive drab.

42:01 So if I had more than one version, then I would

42:02 let them choose.

42:03 Q. Okay. And you were saying, I

42:04 guess, they had a -- were you going to say that

42:05 you guessed that the service members had a

42:06 choice between the earplugs?

42:07 A. So we would give them -- We'd

42:08 give them as many as we could.

42:09 Q. Okay. So in other words, you'd

42:10 give the service members more than one of the

42:11 various types of earplugs?

42:12 A. Yes.

42:13 Q. And what types of earplugs did

42:14 you provide, other than the Combat Arms?

42:15 A. So the -- Well, there's the

42:16 orange triple-flange; or the blue Elvex

42:17 Quattro; or the size small green triple-flange;

42:18 or the Howard light mint green, they were also

42:19 size small; or the other Howard light smedium,

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42:20 we called them smedium, because they were kind

42:21 of in between a small and a medium; and then

42:22 the large blue triple-flange, based on what

42:23 they were fitted at.

42:24 Q. So among those earplugs, for the

42:25 ones that fit them, they had the choice as to

43:01 which ones to use?

43:02 A. (Witness nods head in the

43:03 affirmative.)

43:04 Q. Is that correct?

43:05 A. Yes. Correct. Uh-huh.

44:20 - 45:07 Battler, Leanne (2020-09-10) 1:03

44:20 Q. Based on your personal experience Re: [44:20 to 45:07] Re: [44:20 to 45:07]

44:21 with the CAEv2, you indicated that the CAE and Pltf Obj 602, 611, SUSTAINED

44:22 conventional earplugs for soldiers were often Speculation, leading,

44:23 not available or not wanted. What's your basis 701/702/602, 403, 802;

44:24 for that? conjecture

44:25 A. Right. Okay. The -- Well,

45:01 during the initial deployment, they weren't

45:02 available. They weren't available. And -- Or,

45:03 as I said, the fear of being overattenuated and

45:04 not -- not able to hear external sounds with

45:05 use of a linear earplug caused a lot of

45:06 soldiers to reject them and not use them at

45:07 all.

45:10 - 46:04 Battler, Leanne (2020-09-10) 2:41

45:10 Q. Thank you, Lieutenant Colonel.

45:11 And you also indicated, based on your personal

45:12 experience with the usage and application of

45:13 the CAEv2, that the -- during the initial

45:14 deployments, the CAE was sometimes not fitted

45:15 properly. What's your basis for that?

45:16 A. When I deployed, and the Rapid

45:17 Fielding Initiative truck pulled up, and I went

45:18 there to get my uniforms and my boots and my

45:19 knee pads and my pocket tool, they threw a pair

45:20 of Combat Arms earplugs at me and said: Here

45:21 you go.

45:22 Q. Was that concerning to you?

45:23 A. Yes.

45:24 Q. Why was that concerning to you?

45:25 A. Because they're not one size fits

46:01 all and there was no education provided as to

46:02 when to put which end in your ear, how to --

46:03 how to pull the ear up and back, twist and

46:04 push, do the tug test, none of that.

46:20 - 47:20 Battler, Leanne (2020-09-10) 1:24

46:20 So you were describing as part of

46:21 the Rapid Fielding Initiative, when you

46:22 deployed, the truck pulled up and you were

46:23 handed a pair of Combat Arms earplugs without

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46:24 -- without instructions; correct?

46:25 A. Correct.

47:01 Q. And this was in what year?

47:02 A. 2008.

47:03 Q. Okay. And was there -- Was there

47:04 anything in writing that accompanied the Combat

47:05 Arms earplugs when you received them in 2008?

47:06 A. No.

47:07 Q. And did they -- did they come in

47:08 a little baggy as part of the Rapid Fielding

47:09 Initiative or some kind of packaging or just

47:10 stand-alone?

47:11 A. Just two earplugs.

47:12 Q. Okay. And were there -- Were

47:13 there other service members with you at the

47:14 time you were provided your earplugs?

47:15 A. Yes.

47:16 Q. Okay. What other service members

47:17 were with you in 2008 when you were provided

47:18 Combat Arms earplugs as part of the Rapid

47:19 Fielding Initiative, approximately how many?

47:20 A. Oh, five.

48:01 - 48:05 Battler, Leanne (2020-09-10) 0:13

48:01 Q. Okay. And did you have concern Re: [48:01 to 48:05] Re: [48:01 to 48:05]

48:02 that as part of the Rapid Fielding Initiative, Pltf Obj 611 leading, SUSTAINED 402; 403

48:03 other service members would be getting the compound, speculation,

48:04 earplugs without fitting instructions? asked/answered; 402/403; 406;

48:05 A. Yes. conjecture

48:08 - 49:14 Battler, Leanne (2020-09-10) 2:42

48:08 Q. And based on your personal Re: [48:08 to 49:14] Re: [48:08 to 49:14]

48:09 experience, why did you have that concern for Pltf Obj 611 leading and calls SUSTAINED 402; 403;

48:10 other service members as part of the Rapid for speculation; 402/403; 802; 611; 802

48:11 Fielding Initiative? 404/406, 701; conjecture

48:12 A. Because -- Because there's no

48:13 such thing as one size fits all, and because

48:14 there was -- they had no idea -- my assumption

48:15 was that they had no idea which end was which.

48:16 Q. And so -- And so based on your --

48:17 your personal experience, was it your

48:18 understanding that as part of the Rapid

48:19 Fielding Initiative, service members like

48:20 yourself were receiving the Combat Arms Version

48:21 2 without instruction and fitting?

48:22 A. Yes, that's correct.

48:23 Q. And was the basis of that

48:24 understanding?

48:25 A. The basis is that there was no

49:01 instruction given.

49:02 Q. And did you have any discussions

49:03 with others in the audiologist community, or

49:04 other service members, about the fact that

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49:05 earplugs were being given out as part of the

49:06 Rapid Fielding Initiative without instruction

49:07 and fitting?

49:08 A. Yes.

49:09 Q. Tell the jury about the

49:10 discussions you had with other -- other service

49:11 members regarding the fact that in the Rapid

49:12 Fielding Initiative, Combat Arms earplugs were

49:13 being provided without proper instruction and

49:14 fitting.

49:16 - 49:21 Battler, Leanne (2020-09-10) 0:29

49:16 A. So I tried to coordinate with the Re: [49:16 to 49:21] Re: [49:16 to 49:21]

49:17 Rapid Fielding Initiative leadership to allow Pltf Obj 402,802, vague SUSTAINED

49:18 us to access those -- those Combat Arms

49:19 earplugs and fit them concurrently with the

49:20 predeployment hearing test. And sometimes I

49:21 was successful, sometimes not. But . . .

50:08 - 50:25 Battler, Leanne (2020-09-10) 1:02

50:08 Q. Yes. So you said sometimes your Re: [50:08 to 50:25] Re: [50:08 to 50:25]

50:09 efforts were not successful in terms of proper Pltf Obj 402/403, 611 vague, SUSTAINED

50:10 fitting and instructions for the Combat Arms as leading, speculation, 802,

50:11 part of the Rapid Fielding Initiative, not your 406, 701, 802

50:12 clinic, the Rapid Fielding Initiative, can you

50:13 describe that?

50:14 A. Sure. Right. We tried to get

50:15 them to relinquish their supply of Combat Arms

50:16 earplugs to our clinic, and sometimes

50:17 contractors were more than happy to say: Yep,

50:18 here you go, take them all. Others were like:

50:19 No, these are -- it's not -- We're not handing

50:20 them over, this is what we do. And . . .

50:21 Q. Okay. So you said contractors

50:22 would tell you they're not handing them over,

50:23 they wanted to provide the Combat Arms directly

50:24 to the troops without instruction or fitting;

50:25 correct?

51:03 - 51:04 Battler, Leanne (2020-09-10) 0:02

51:03 A. That is -- That was my Re: [51:03 to 51:04] Re: [51:03 to 51:04]

51:04 experience, yes. Pltf Obj 402/403, conjecture, SUSTAINED

vague 611, 802

52:01 - 52:12 Battler, Leanne (2020-09-10) 1:43

52:01 Q. Okay. The contractors you're Re: [52:01 to 52:12] Re: [52:01 to 52:12]

52:02 referring to, these are supply contractors who Pltf Obj Speculation; 402/403; SUSTAINED

52:03 are supplying Combat Arms, these are not the compound question;

52:04 manufacturers of the earplug; correct? asked/answered; 701/602;

52:05 A. Correct. conjecture; 406

52:06 Q. Okay. So the contractors that

52:07 you are referring to, who are supplying the

52:08 Combat Arms earplugs as part of the Rapid

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52:09 Fielding Initiative without proper instruction

52:10 and fitting, that is not 3M or Aearo; correct?

52:11 A. Not to my knowledge. They were

52:12 just regular civilian contractors.

52:19 - 52:21 Battler, Leanne (2020-09-10) 0:12

52:19 Q. Okay. But they were people who Re: [52:19 to 52:21] Re: [52:19 to 52:21]

52:20 would show up in trucks with Combat Arms Pltf Obj Vague, Leading, SUSTAINED

52:21 earplugs and other earplugs; correct? 402/403 relevance, conjecture

52:24 - 52:25 Battler, Leanne (2020-09-10) 0:07

52:24 A. They would have earplugs and all Re: [52:24 to 52:25] Re: [52:24 to 52:25]

52:25 of the other Rapid Fielding Initiative items. Pltf Obj Nonresponsive SUSTAINED

answers; conjecture; 402/403;

611 compound questions, vague,

leading, asked/answered

53:01 - 54:09 Battler, Leanne (2020-09-10) 2:17

53:01 Q. Okay. So that's a helpful Re: [53:01 to 54:09] Re: [53:01 to 54:09]

53:02 clarification. So these contractors who would Pltf Obj Nonresponsive SUSTAINED

53:03 -- who would show up and would provide the answers; conjecture; 402/403;

53:04 Combat Arms earplugs without proper instruction 611 compound questions, vague,

53:05 or fitting, they didn't just provide hearing leading, asked/answered; 802;

53:06 protection, they also would come up -- show up 406; 602/701

53:07 in the truck with other Rapid Fielding

53:08 Initiative equipment; right?

53:09 A. Yes, that's correct.

53:10 Q. And could you describe what were

53:11 some of the other types of equipment?

53:12 A. Oh, we got our uniforms and boots

53:13 and socks and T-shirts and coats and our

53:14 multitool and knee pads, elbow pads, our body

53:15 armor, all of it.

53:16 Q. Okay. So referring back to

53:17 Exhibit 1, and back to page 70, at the bottom,

53:18 you said: During the initial deployment for

53:19 the Global War on Terror, the CAE and

53:20 conventional earplugs for soldiers were often

53:21 not available, not wanted, or not fitted

53:22 properly, which resulted in the dramatic

53:23 increase in STS in 2003. And on that, I want

53:24 to be very careful, and I want to limit you to

53:25 your personal experience and the scope of the

54:01 Touhy authorization.

54:02 So with respect to your personal

54:03 experience regarding CAEv2 usage and

54:04 application with the Army, which is what you're

54:05 authorized under the August 13, 2020, letter,

54:06 how did the CAE and conventional earplugs for

54:07 soldiers not being available or wanted or not

54:08 being fitted properly result in the dramatic

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54:09 STS increase in 2003?

54:13 - 54:24 Battler, Leanne (2020-09-10) 2:56

54:13 A. So, again, I pulled these numbers Re: [54:13 to 54:24] Re: [54:13 to 54:24]

54:14 historically from the DOEHRS data repository. Pltf Obj Speculation; SUSTAINED

54:15 I was obviously not in the Army in 2002. But Nonresponsive; 402/403; 802;

54:16 if the earplugs were not available and not 602/701

54:17 fitted, and there was a war, and the hearing

54:18 loss increased, and that was not the case when

54:19 those hearing protection devices were fitted,

54:20 then, to me, that's a significant correlation.

54:21 Q. Thank you. Okay. If you look at

54:22 the next sentence. Can you read the next

54:23 sentence of your article to the jury, please,

54:24 beginning with: The elimination?

55:05 - 55:21 Battler, Leanne (2020-09-10) 1:57

55:05 A. The elimination of the Army

55:06 audiologist's authorization from Fort Carson in

55:07 2002 resulted in the abandonment of key

55:08 concepts, such as hearing loss prevention

55:09 education and the emphasis on hearing

55:10 protection devices and their proper use.

55:11 Q. Okay. And, again, I want to be

55:12 careful to limit this to the scope of your

55:13 authorization. So based on your personal

55:14 knowledge regarding CAEv2 usage and

55:15 application, can you describe how the

55:16 elimination of the Army audiologist's

55:17 authorization from Fort Carson in 2002 resulted

55:18 in the abandonment of key concepts, such as

55:19 hearing loss prevention education and the

55:20 emphasis on hearing protection devices and

55:21 their proper use?

55:25 - 56:05 Battler, Leanne (2020-09-10) 1:35

55:25 A. When I was at Fort Carson, the

56:01 civilian audiologist, who was there during

56:02 2002, when the authorization was eliminated, he

56:03 -- he was a retired Army audiologist, and did

56:04 his best, but was limited -- had very little

56:05 time outside of the clinic, because he was a

56:18 - 56:20 Battler, Leanne (2020-09-10) 0:26

56:18 Q. Okay. This will be marked as Re: [56:18 to 56:20] Re: [56:18 to 56:20]

56:19 Exhibit 3. Can you take a look at this Pltf Obj Foundation; 402/403; SUSTAINED

56:20 document and tell us what it is? 802;

57:01 - 57:11 Battler, Leanne (2020-09-10) 1:34

57:01 Q. Do you recognize it as Department

57:02 of Defense Instruction 6055.12 for the DoD

57:03 Hearing Conservation Program?

57:04 A. Yes.

57:05 Q. And the instruction contains a

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57:06 number of requirements for the Hearing

57:07 Conservation Program at the DoD components;

57:08 right?

57:09 A. Yes.

57:10 Q. And if you look at 6.6.5 of this

57:11 instruction.

57:14 - 59:07 Battler, Leanne (2020-09-10) 3:47

57:14 Q. It says: Personnel shall be

57:15 allowed to choose personal hearing protection

57:16 from among those approved devices, available

57:17 through supply channels unless medically

57:18 contraindicated or inappropriate for particular

57:19 hazardous noise exposure; correct?

57:20 A. Yes.

57:21 Q. So Army service members were able

57:22 to choose what hearing protection device they

57:23 wear while in service, whether it be the Combat

57:24 Arms or some alternative to the Combat Arms;

57:25 correct?

58:01 A. Based on what we had.

58:02 Q. Correct. And sometimes you did

58:03 not have the Combat Arms available; correct?

58:04 A. That's correct.

58:05 Q. Sometimes the only hearing

58:06 protection devices that were available were

58:07 hearing protection devices other than the

58:08 Combat Arms; correct?

58:09 A. Yes. That's correct.

58:10 Q. If you look at 6.6.7, is it

58:11 correct that the regulations required the

58:12 preformed earplugs such as the Combat Arms

58:13 shall be fitted and issued only under the

58:14 supervision of personnel who have been

58:15 specifically trained to fit earplugs?

58:16 A. Yes.

58:17 Q. 6.6.9. What does 6.6.9 require?

58:18 A. So the idea is that when each

58:19 troop comes in for their annual hearing tests,

58:20 at that time we will also inspect their

58:21 existing hearing protection and fit them with

58:22 new hearing protection.

58:23 Q. Okay. So medically trained

58:24 personnel must examine the fit and condition of

58:25 preformed earplugs like the Combat Arms at

59:01 least annually; correct?

59:02 A. Yes.

59:03 Q. 6.6.10: Personnel shall require

59:04 -- receive adequate and effective training in

59:05 the proper care and use of personal hearing

59:06 protectors; correct?

59:07 A. Yes.

59:16 - 63:11 Battler, Leanne (2020-09-10) 6:07

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59:16 Q. Can you explain what enclosure 6

59:17 of the DoD Instruction 6055.12 is?

59:18 A. So these are the instructions how

59:19 to properly fit and insert and check for

59:20 adequate seal your hearing protection.

59:21 Q. Okay. And you've seen these

59:22 instructions before?

59:23 A. Yes.

59:24 Q. Okay. Could you read instruction

59:25 number 3, in the general information?

60:01 A. Number three: Plugs tend to work

60:02 loose as a result of talking and chewing and

60:03 must be reseated.

60:04 Q. Okay. And you understood that to

60:05 be true based on your experience with the

60:06 Combat Arms and other preformed earplugs, that

60:07 plugs tend to work loose as a result of talking

60:08 and chewing and must be reseated?

60:09 A. Yes.

60:10 Q. Okay. And based on your

60:11 experience, was that equally true of the

60:12 various preformed earplugs or did that tend to

60:13 happen more with some preformed earplugs than

60:14 others?

60:15 A. That was true for all earplugs.

60:16 Q. Okay. So for all earplugs,

60:17 whether it be the CAEv2 or something else,

60:18 plugs tend to work loose as a result of talking

60:19 and chewing; correct?

60:20 A. Yes.

60:21 Q. And is that -- Is that something

60:22 that, based on your personal experience, was

60:23 known within the audiological community?

60:24 A. Yes.

60:25 Q. And when -- When an earplug works

61:01 itself loose as a result of talking or chewing,

61:02 could -- is that something that when you were

61:03 wearing earplugs, that you could tell based on

61:04 auditory clues from the ambient noise?

61:05 A. Yes.

61:06 Q. So -- So I used -- I used words

61:07 like auditory clues and ambient noise, but can

61:08 you describe in simple terms for the jury how

61:09 you could tell, when you were wearing Combat

61:10 Arms and other preformed earplugs, if the

61:11 earplugs had loosened.

61:12 A. Basically, with any jaw movement,

61:13 you would hear the ambient -- you would hear

61:14 the outside cutting in and out as -- as the

61:15 earplug would shift.

61:16 Q. Okay. And it's important for an

61:17 earplug to maintain its seal; correct?

61:18 A. Yes.

61:19 Q. And why is that important?

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61:20 A. Because sound -- Sound can travel

61:21 through the tiniest little opening, and, in

61:22 fact, the external ear is designed to funnel

61:23 those sounds and direct them into the ear

61:24 canal.

61:25 Q. Okay. And then you were

62:01 describing earlier, if an earplug did not

62:02 maintain its seal, that's something that you

62:03 could tell when you were wearing them; correct?

62:04 A. Yes.

62:05 Q. And if you were wearing an

62:06 earplug and it did not maintain its seal, and

62:07 you received an auditory clue, what would you

62:08 do then?

62:09 A. Same as the direction here,

62:10 opposite hand, pull the ear up and back, twist

62:11 and push, wait -- feel for that final flange

62:12 flush with the opening in the ear canal, do a

62:13 tug test.

62:14 Q. So an earplug losing its seal, in

62:15 your experience, that's not something that's

62:16 out of the ordinary; correct?

62:17 A. Correct.

62:18 Q. Okay. And let me ask you, with

62:19 respect to the Combat Arms Version 2, did you

62:20 ever roll back the flanges for service members

62:21 when you were fitting that earplug?

62:22 A. No.

62:23 Q. Okay. So in those instances, you

62:24 did not need to roll back the flanges to obtain

62:25 an appropriate fit; correct?

63:01 A. If I was not able to attain an

63:02 appropriate fit without -- Well, I never tried

63:03 rolling back. If I did not obtain an adequate

63:04 fit with the earplug as -- as it was, then I

63:05 didn't recommend -- I would recommend an

63:06 alternate hearing protection device.

63:07 Q. Okay. So if you -- If you were

63:08 unable to fit the soldier, then you would

63:09 recommend to the soldier that a different

63:10 hearing device be used; correct?

63:11 A. Correct.

63:12 - 63:25 Battler, Leanne (2020-09-10) 1:55

63:12 Q. In the instances where you

63:13 successfully fit service members with Combat

63:14 Arms earplugs, did you ever see the Combat Arms

63:15 earplugs lose their seal in the soldier's ear

63:16 after you had fit them?

63:17 A. Inside the clinic or downrange?

63:18 Q. Inside the clinic.

63:19 A. No.

63:20 Q. In the instances where you fit

63:21 service members with Combat Arms earplugs, did

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63:22 you ever witness those earplugs losing their

63:23 seal at any time?

63:24 A. I mean, I would only see them for

63:25 a few minutes after we achieved the seal.

64:09 - 65:08 Battler, Leanne (2020-09-10) 2:36

64:09 Q. Did any service member ever Re: [64:09 to 65:08] Re: [64:09 to 65:08]

64:10 complain to you about Combat Arms earplugs? Pltf Obj 802 and HS w/in HS; SUSTAINED

64:11 A. I heard things like they were 402/403; vague; 701/702

64:12 kind of -- the plastic was hard, they would improper opinion testimony;

64:13 have preferred a softer silicone, and that they speculation 602/611

64:14 didn't like how far out they stuck. But those

64:15 were the -- Those were the two main -- And when

64:16 they would drop into the dirt, then they

64:17 wouldn't be able to find it.

64:18 Q. Okay. Those things relating to

64:19 the comfort and how far out they stuck and

64:20 dropping into the dirt, based on your

64:21 experience, did they ever impede the

64:22 performance of the Combat Arms earplug in terms

64:23 of keeping out sound?

64:24 A. No.

64:25 Q. Any complaints from ever -- any

65:01 service member ever about that the Combat Arms

65:02 earplug was not effective in terms of keeping

65:03 out sound?

65:04 A. No.

65:05 Q. And approximately how many

65:06 service members did you fit with the Combat

65:07 Arms earplug?

65:08 A. Thousands.

65:12 - 65:22 Battler, Leanne (2020-09-10) 1:52

65:12 Q. Let's mark as the next exhibit

65:13 Tab 22. We'll mark this as Exhibit Number 4.

65:14 Can you identify this document,

65:15 Lieutenant Colonel Battler?

65:16 A. Yes. This is the DA PAM 40-501.

65:17 Q. What is the DA PAM 40-501?

65:18 A. This was the precursor to the

65:19 Army Hearing Program. The Army Hearing -- This

65:20 was the old Army Hearing Conservation Program

65:21 based on the OSHA model for noise-exposed

65:22 civilian personnel.

66:02 - 66:14 Battler, Leanne (2020-09-10) 1:43

66:02 Q. So this document -- The Re: [66:02 to 66:14] Re: [66:02 to 66:14]

66:03 regulation we were looking at earlier, Exhibit Pltf Obj Objections are DEFER RULING

66:04 3, pertained to the Armed Forces. And this related to 66:8-14;

66:05 document, the DA PAM pertains to the Army Foundation; mischaracterizes

66:06 specifically, right, Lieutenant Colonel? evidence; conjecture; 402/403;

66:07 A. Yes. 701/702

66:08 Q. And if you look at section 6.3,

66:09 characteristics, for the Combat Arms and other

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66:10 preformed earplugs, medically trained personnel

66:11 were required to fit and examine the earplugs

66:12 at least annually to ensure proper fit and

66:13 condition; correct?

66:14 A. Yes.

67:03 - 69:03 Battler, Leanne (2020-09-10) 2:06

67:03 Q. And I would focus you on your use Re: [68:25 to 69:03]

67:04 and your personal experience with respect to Pltf Obj Conjecture; 402/403;

67:05 Combat Arms earplugs. Those are triple-flange 611 leading, asked/answered,

67:06 earplugs; correct? vague; speculation, compound

67:07 A. So the triple-flange are what we questions; 602/701/702

67:08 had mostly available, through the NSN improper opinion tesitmony;

67:09 purchasing. 802; PG1 and PG2 resolved via

67:10 Q. When you say the triple-flange Doc. 1693

67:11 are what you had mostly available, you're

67:12 referring to something other than the Combat

67:13 Arms; correct?

67:14 A. Yes.

67:15 Q. Okay. So what you had mostly

67:16 available for service members was a

67:17 triple-flange earplug other than the Combat

67:18 Arms?

67:19 A. Yes.

67:20 Q. And that's the first thing that

67:21 you tried to fit the service members with;

67:22 correct?

67:23 A. Yes.

67:24 Q. And approximately when did the

67:25 Combat Arms first become available in your

68:01 clinic?

68:02 A. Probably 2004. Yes, at Fort

68:03 Hood. 2004.

68:04 Q. So you first tried to fit the

68:05 service members with a triple-flange earplug

68:06 other than the Combat Arms; correct?

68:07 A. Yes.

68:08 Q. And sometimes the Combat Arms

68:09 were available and sometimes they were not;

68:10 correct?

68:11 A. Yes.

68:12 Q. And if they were available, you

68:13 would try to fit the service member with the

68:14 Combat Arms; correct?

68:15 A. In addition to the linear

68:16 triple-flange, yes.

68:17 Q. And sometimes the Combat Arms

68:18 would fit and sometimes the Combat Arms would

68:19 not fit; correct?

68:20 A. Yes.

68:21 Q. And the Combat Arms were not a

68:22 one-size-fits-all earplug, they fit some people

68:23 and not others; correct?

68:24 A. Yes.

SUSTAINED as to "on 

your use" (67:03) and 

68:25-69:03. 

Otherwise 

OVERRULED.

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68:25 Q. And it was known in the

69:01 audiological community that Combat Arms did not

69:02 fit some percentage of service members;

69:03 correct?

69:07 - 69:08 Battler, Leanne (2020-09-10) 0:04

69:07 Q. Based on your personal experience Re: [69:07 to 69:08] Re: [69:07 to 69:08]

69:08 and communications with them. Pltf Obj 802, speculation, SUSTAINED

402/403

69:10 - 69:18 Battler, Leanne (2020-09-10) 1:35

69:10 A. Our -- Our training -- Our Re: [69:10 to 69:18] Re: [69:10 to 69:18]

69:11 training -- Part of our training was that Pltf Obj Nonresponsive answer; SUSTAINED

69:12 there's no such thing as one size fits all. 402/403; speculation; 611

69:13 Q. With respect to -- With respect leading, vague questions;

69:14 to preformed earplugs; correct? 701/702

69:15 A. With all earplugs.

69:16 Q. And so that would also be true of

69:17 the Combat Arms; correct?

69:18 A. Yes.

71:10 - 71:21 Battler, Leanne (2020-09-10) 1:42

71:10 Q. Okay. So with respect to the Re: [71:10 to 71:21] Re: [71:10 to 71:21]

71:11 Combat Arms Version 2, though, in giving Pltf Obj Agree to SUSTAINED

71:12 instruction to service members, you did not 71:10-16;DISAGREE to 71:17-21

71:13 provide anything to them in writing; correct? - speculation; conjecture;

71:14 A. Oh. We had to -- CHPPM made the 701/702; 402/403; 406

71:15 card, the little wallet card, with the

71:16 instruction. Re: [71:17 to 71:21]

71:17 Q. Okay. So what the -- What the Pltf Obj speculation;

71:18 service members received in writing regarding conjecture; 701/702; 402/403;

71:19 the Combat Arms earplug was the CHPPM wallet 406; PG1 and PG2 resolved via

71:20 card; correct? Doc. 1693

71:21 A. When we had them available, yes.

71:24 - 72:06 Battler, Leanne (2020-09-10) 1:33

71:24 And did the service members,

71:25 based on your recollection, receive anything

72:01 other than the wallet card created by CHPPM

72:02 when you interacted with them in connection

72:03 with the Combat Arms?

72:04 A. Well, there was our verbal

72:05 instruction, and then when we did the hearing

72:06 health education, we had PowerPoint slides.

72:11 - 72:17 Battler, Leanne (2020-09-10) 0:24

72:11 Q. Okay. So the -- Based on your Re: [72:11 to 72:17] Re: [72:11 to 72:17]

72:12 experience, the written materials that service Pltf Obj Asked and Answered; SUSTAINED

72:13 members would have received relating to the Speculation; 611 leading,

72:14 Combat Arms would have been the CHPPM wallet compound, asked and answered;

72:15 card or a PowerPoint that the audiologist would conjecture;

72:16 have created; correct?

72:17 A. Yes.

SUSTAINED. No new 

objection specific to 

McCombs.

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73:05 - 73:16 Battler, Leanne (2020-09-10) 1:52

73:05 Q. So did you ever ask the -- any

73:06 representatives of the manufacturer of the

73:07 Combat Arms, either Aearo or 3M, to give

73:08 presentations to service members relating to

73:09 the Combat Arms?

73:10 A. I -- I did not, no.

73:11 Q. And based on -- Based on your

73:12 personal experience, you would not have

73:13 expected the manufacturer of the Combat Arms or

73:14 its representatives to come onto bases to give

73:15 presentations to service members; correct?

73:16 A. No. That's correct.

74:04 - 74:17 Battler, Leanne (2020-09-10) 1:37

74:04 Q. Let me simplify it. In your Re: [74:04 to 74:17] Re: [74:04 to 74:17]

74:05 personal experience, the people who gave Pltf Obj Agree to 74:4-12; SUSTAINED

74:06 instructions to service members relating to the DISAGREE to 74:13-17 -

74:07 use and fitting of Combat Arms were vague/confusing, speculation,

74:08 audiologists and medically trained personnel; compound, 402/403, 602/701

74:09 correct?

74:10 A. Yes. Re: [74:13 to 74:17]

74:11 Q. At Fort Carson; correct? Pltf Obj vague/confusing,

74:12 A. Correct. speculation, compound,

74:13 Q. Okay. And we already talked 402/403, 602/701; PG1 and PG2

74:14 about as part of the Rapid Fielding Initiative, resolved via Doc. 1693

74:15 which is separate from Fort Carson and not

74:16 under you, service members did not always

74:17 receive that fitting and instruction; correct?

74:21 - 75:08 Battler, Leanne (2020-09-10) 1:58

74:21 Q. Based on your personal Re: [74:21 to 75:08] Re: [74:21 to 75:08]

74:22 experience. Pltf Obj Mischaracterizes SUSTAINED

74:23 A. Based on my personal experience, evidence; 611 leading,

74:24 that is correct. compound, asked/answered, 802;

74:25 Q. The regulations that we looked at 402/403

75:01 earlier, they -- they did not talk about the

75:02 manufacturers' representatives coming on to

75:03 bases to give instruction with respect to the

75:04 use and fitting of Combat Arms; correct?

75:05 A. That's correct.

75:06 Q. They talk about audiologists and

75:07 medically trained personnel doing this; fair?

75:08 A. Yes.

75:12 - 78:09 Battler, Leanne (2020-09-10) 5:25

75:12 Q. Okay. Let's mark as the next Re: [75:12 to 78:09] Re: [75:12 to 78:09]

75:13 exhibit Tab 11. And we'll call this Exhibit 5. Pltf Obj Improper bolstering, SUSTAINED

75:14 And I want you to focus on the foundation, 402/403; 802;

75:15 portion of the email that's the July 8, 2004, speculation; leading, vague;

75:16 transmission at 9:26 and below, all the way 602/701

75:17 down to the bottom.

75:18 Can you tell the jury what this

75:19 document is?

SUSTAINED. No new 

objection specific to 

McCombs.

Page 21 of 77

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75:20 A. This is an email that my

75:21 ex-husband sent to Doug Ohlin. He forwarded --

75:22 It was forwarded from a friend of my

75:23 ex-husband, who was a active duty infantry

75:24 officer in Iraq who used the Combat Arms

75:25 earplugs that I fitted him with prior to his

76:01 deployment.

76:02 Q. Okay. So let's -- Let's break

76:03 that down. The report, beginning where it

76:04 starts with: Hey, Diggs, who is that -- who is

76:05 the individual that is coming from?

76:06 A. It was coming from Ron Millis,

76:07 who is a Lieutenant Colonel at 11th Bravo --

76:08 11th Alpha infantry officer.

76:09 Q. Okay. And what's your

76:10 understanding of where Ron Millis was at the

76:11 time he sent this email?

76:12 A. Ron was emailing from Iraq, to my

76:13 husband, Richard, who people called Diggs, who

76:14 was in Kuwait at the time. And he just said,

76:15 again, you know, where -- yeah, had an

76:16 opportunity --

76:17 Q. Let's break it down. So in

76:18 Exhibit Number 5, let's start -- Can you please

76:19 read to the jury the paragraph beginning with:

76:20 Well, the Millis luck.

76:21 A. Well, the Millis luck seems to be

76:22 holding.

76:23 So this is Ron -- Ron speaking,

76:24 with the 11 Alpha infantry officer ranger: So

76:25 my family luck seems to be holding. I arrived

77:01 here the day before the -- the storm; and then

77:02 he defines the storm by saying, we've had the

77:03 most killed in action since Vietnam. We are

77:04 especially lucky -- and he's being sarcastic --

77:05 especially lucky that here in Camp Taji was the

77:06 Arty rocket mortar training base for Saddam

77:07 Hussein, so all of the out-of-work locals are

77:08 pretty good at indirect fire.

77:09 Q. So did you understand that to

77:10 mean that things were pretty intense where he

77:11 was?

77:12 A. Yes.

77:13 Q. Could you now read the next

77:14 paragraph in the email from this service member

77:15 in Iraq?

77:16 A. Right. So then he said: Hey,

77:17 did Leanne, your wife, have anything to do with

77:18 Combat Arms earplugs, the yellow and green

77:19 ones? They work great in this environment. I

77:20 was able to test them out two different times.

77:21 They probably made the difference between

77:22 eardrum/hearing damage and not. They

77:23 definitely allow you to mentally recover very

Page 22 of 77

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77:24 quickly so you are able to deal with your

77:25 situation, versus standing around like a

78:01 stunned mullet for a while.

78:02 Q. And what did you take that

78:03 paragraph to mean?

78:04 A. I took that to mean that he had

78:05 been hit by at least one blast, and that the

78:06 Combat Arms earplug attenuated enough of the

78:07 percussion wave that it didn't knock the wind

78:08 out of him to the level that he was -- had

78:09 experienced prior.

79:08 - 80:09 Battler, Leanne (2020-09-10) 2:04

79:08 Q. Okay. So you understood Mr. Re: [79:08 to 80:09] Re: [79:08 to 80:09]

79:09 Millis to be indicating that the Combat Arms Pltf Obj Speculation; SUSTAINED

79:10 earplugs worked great in combat? nonresponsive answers; 802;

79:11 A. Yes. Dismounted -- He's an 611 vague, leading; 402/403;

79:12 infantry officer, dismounted operations. 602/701/702

79:13 Q. Okay. And he says that they

79:14 probably made the difference between

79:15 eardrum/hearing damage and not.

79:16 What did you understand that to

79:17 mean?

79:18 A. I understood that as him saying

79:19 he was -- he was in a fire-fight and exposed to

79:20 at least one blast, close range, and maintained

79:21 his hearing.

79:22 Q. While wearing the Combat Arms?

79:23 A. Yes.

79:24 Q. He also says in the next

79:25 sentence: They definitely allow you to

80:01 mentally recover very quickly so you are able

80:02 to deal with your situation versus standing

80:03 around like a stunned mullet for a while. What

80:04 did you understand that to mean?

80:05 A. My understanding was, again, that

80:06 was -- when you're hit -- a percussion wave, a

80:07 significant impulse noise, whether it's weapons

80:08 fire or blast exposure, affects your whole

80:09 body, not just your ears.

80:14 - 80:18 Battler, Leanne (2020-09-10) 0:16

80:14 Q. And reflecting on Mr. Millis' Re: [80:14 to 80:18] Re: [80:14 to 80:18]

80:15 email, are you -- are you proud of your role Pltf Obj 402/403; 602/701/702 SUSTAINED

80:16 with respect to fitting the Combat Arms, in

80:17 terms of it -- the protection that it provided

80:18 to service members?

80:22 - 81:08 Battler, Leanne (2020-09-10) 1:58

80:22 A. I mean, Ron was at our wedding. Re: [80:22 to 81:08] Re: [80:22 to 81:08]

80:23 I might have -- And that was the summer I was Pltf Obj Nonresponsive answer; SUSTAINED

80:24 working at Aberdeen, I -- I'm pretty sure I 402/403; speculation; 611

80:25 fitted him. I'm very proud of that. leading, vague questions;

81:01 Q. Okay. So you're proud of fitting 701/702; impromper bolstering

Page 23 of 77

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81:02 Mr. Millis with the Combat Arms and the

81:03 protection that it provided to him in combat?

81:04 A. Yes.

81:05 Q. And in doing that, you were

81:06 helping the United States Military with respect

81:07 to its mission in Iraq?

81:08 A. Yes. Very proud of that.

81:19 - 82:19 Battler, Leanne (2020-09-10) 2:37

81:19 Q. Yes. Not just with respect to Re: [81:19 to 82:19] Re: [81:19 to 82:19]

81:20 Mr. Millis, but with respect to the Combat Arms Pltf Obj 402/403; vague; SUSTAINED

81:21 generally, and soldiers generally, are you mischaracterizes evidence;

81:22 proud of the role that you played with respect 602/701/702 improper

81:23 to fitting soldiers with Combat Arms? opinion/expert testimony;

81:24 A. And my response is yes, hundred speculation

81:25 percent.

82:01 Q. And you say that, yes, a hundred

82:02 percent. Can you describe for the jury why

82:03 your answer is, yes, you're a hundred percent

82:04 proud of your role with respect to the Combat

82:05 Arms?

82:06 A. This was -- These were the first

82:07 nonlinear earplugs, they were cutting-edge

82:08 technology; for the first time, soldiers were

82:09 wanting -- wanting the hearing protection; they

82:10 had great things to say about it; and I was

82:11 part of history.

82:12 Q. And based on your personal

82:13 experience, and your -- and communications that

82:14 you had with soldiers, is it your -- as an

82:15 audiologist, is it your understanding that the

82:16 Combat Arms earplugs, which you helped to fit,

82:17 helped the military effort in Iraq and

82:18 Afghanistan?

82:19 A. Absolutely.

82:25 - 83:03 Battler, Leanne (2020-09-10) 0:16

82:25 A. I believe that the earplug, the Re: [82:25 to 83:03] SUSTAINED

83:01 Combat Arms earplug, Version 2, helped improve Pltf Obj 402/403; vague;

83:02 situational awareness, survivability, and mischaracterizes evidence;

83:03 lethality. 602/701/702 improper

opinion/expert testimony;

speculation; PG1 and PG2

resolved via Doc. 1693; PG7

resolved via Doc. 1702

83:09 - 83:11 Battler, Leanne (2020-09-10) 0:19

83:09 With respect to your personal Re: [83:09 to 83:11] Re: [83:09 to 83:11]

83:10 experience, how did the Combat Arms earplug Pltf Obj Speculation; 402/403; SUSTAINED

83:11 help soldiers with situational awareness? 611; 602/701/702 improper

opinion/expert testimony;

improper bolstering

Page 24 of 77

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83:22 - 84:08 Battler, Leanne (2020-09-10) 1:54

83:22 A. So, yes. Again, a regular Re: [83:22 to 84:08] Re: [83:22 to 84:08]

83:23 triple-flange earplug, or foam earplug, which Pltf Obj Speculation; 802; SUSTAINED

83:24 would overattenuate to the point that troops 402/403; 406; 602/701/702

83:25 felt they were not always able to hear sniper

84:01 fire or calls from their buddies. But that

84:02 was -- The overattenuation effect was

84:03 alleviated by the filter portion of the Combat

84:04 Arms earplug in dismounted operations.

84:05 Q. Based on -- Based on your

84:06 personal experience and your communications

84:07 with service members, how did the Combat Arms

84:08 earplug help with survivability?

84:11 - 86:11 Battler, Leanne (2020-09-10) 3:07

84:11 A. Hearing is twenty-four hours, Re: [84:11 to 86:11] Re: [84:11 to 86:11]

84:12 three-hundred-sixty degrees. So if you're Pltf Obj Conjecture; SUSTAINED

84:13 asleep, and someone is coming up to get you, speculation; nonresponsive

84:14 you could hear them, even if you had the Combat answers; 402/403; 602/701/702

84:15 Arms earplug in. improper opinion/expert

84:16 Q. And in your view, was that a opinions; 611 leading, vague,

84:17 positive feature of the Combat Arms? compound questions; vast

84:18 A. Hear the enemy, stay alive. generalizations; 802

84:19 Q. Let's talk about the third thing

84:20 that you said that the Combat Arms earplug

84:21 helped with, and that was with respect to

84:22 lethality. Did I get that right?

84:23 A. Yes.

84:24 Q. And based on your personal

84:25 experience and your communication with service

85:01 members, how did the Combat Arms earplug help

85:02 with respect to lethality?

85:03 A. It's really the same as

85:04 survivability.

85:05 Q. Okay. How so?

85:06 A. So you can hear -- you can hear

85:07 the enemy.

85:08 Q. And have you had communications

85:09 with others in the audiological community about

85:10 how the Combat Arms earplugs helped soldiers

85:11 with situational awareness, survivability, and

85:12 lethality?

85:13 A. Yes.

85:14 Q. Who else in the audiological

85:15 community have you talked to about how the

85:16 Combat Arms Version 2 helped soldiers with

85:17 situational awareness, survivability, and

85:18 lethality?

85:19 A. We all talk about it.

85:20 Q. Okay. And based on your

85:21 communications with others in the -- First of

85:22 all, when you're saying all, are you referring

85:23 to Army audiologists or all Armed Forces?

Page 25 of 77

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85:24 A. I've met a lot of -- I've met a

85:25 lot of audiologists in all of the services over

86:01 the last seventeen years. And as I say, I'm

86:02 very proud of the role I played, and I do

86:03 mention anecdotal encounters and reports that

86:04 I've heard from soldiers who I've seen in the

86:05 clinic.

86:06 Q. Okay. And there were soldiers

86:07 who you've seen in the clinic who reported a

86:08 positive experience with respect to the Combat

86:09 Arms?

86:10 A. Right. And downrange and in the

86:11 hazardous noise environments.

86:21 - 88:01 Battler, Leanne (2020-09-10) 2:00

86:21 Q. You -- The -- You said you had Re: [86:21 to 88:01] Re: [86:21 to 88:01]

86:22 talked to others within the audiological Pltf Obj 802; 402/403; 404; SUSTAINED

86:23 community about how the Combat Arms helped with Speculation; 611; vague;

86:24 situational awareness, survivability, and 602/701/702; leading

86:25 lethality for soldiers. Are there any in the

87:01 audiological community who shared your view

87:02 that the Combat Arms helped with those things,

87:03 based on your conversations?

87:04 A. I presented a lot of data at

87:05 military audiology meetings, and some people

87:06 did ask for copies of my slides at the end,

87:07 yes.

87:08 Q. Okay. And did you present data

87:09 showing how the Combat Arms had helped

87:10 soldiers?

87:11 A. Yes.

87:12 Q. Okay. And could you describe

87:13 that data?

87:14 A. So it was related to my

87:15 deployment, which was in support of fielding a

87:16 different hearing protector. And in my data

87:17 collection, I thought, well, if you're going to

87:18 ask how do you like this new hearing protector,

87:19 then the best way to describe how you like it

87:20 would be comparing it to a series of other

87:21 hearing protectors. So that's how I collected

87:22 data, and I included the Combat Arms earplug as

87:23 one of the alternate types of hearing

87:24 protection, to compare things like situational

87:25 awareness, comfort, radial clarity, that sort

88:01 of thing.

88:05 - 88:09 Battler, Leanne (2020-09-10) 0:14

88:05 Q. So in 2008, you put together a

88:06 slide presentation comparing the Combat Arms

88:07 earplug to other earplugs in a variety of

88:08 respects; correct?

88:09 A. Yes.

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88:21 - 88:25 Battler, Leanne (2020-09-10) 0:23

88:21 Lieutenant Colonel Battler, can Re: [88:21 to 88:25] Re: [88:21 to 88:25]

88:22 you describe how the Combat Arms fared Pltf Obj 611 Vague, Leading, SUSTAINED

88:23 compared to other earplugs in the analysis that 402/403, 701/702;

88:24 you did?

88:25 A. Pretty well.

90:02 - 90:12 Battler, Leanne (2020-09-10) 1:50

90:02 Q. Okay. Exhibit 6, is that a Re: [90:02 to 90:12] Re: [90:02 to 90:12]

90:03 PowerPoint you prepared? Pltf Obj 802; 402/403 SUSTAINED

90:04 A. Yes.

90:05 Q. Can you describe the background

90:06 behind this PowerPoint?

90:07 A. Oh. This was a presentation that

90:08 I made at the joint DoD and VA Audiology

90:09 Conference in 2009, basically summarizing the

90:10 results of my deployment to Iraq as an

90:11 individual augmentee with the 3rd Brigade

90:12 Combat Team, 4th Infantry Division.

90:18 - 92:04 Battler, Leanne (2020-09-10) 3:31

90:18 Q. Okay. And did your -- As part of Re: [90:18 to 92:04] Re: [90:18 to 92:04]

90:19 your survey, did you ask for feedback on the Pltf Obj 802; 402/403; SUSTAINED

90:20 Combat Arms and other hearing protection? speculation; 602/701/702;

90:21 A. Yes. conjecture; nonresponsive

90:22 Q. How did -- How did the Combat answers

90:23 Arms fare relatively to other hearing

90:24 protection in your survey?

90:25 A. Right. So as part of my mission,

91:01 so historically, the 4th Infantry Division was

91:02 known as the digital division, so they tested

91:03 and fielded all digital equipment before

91:04 anybody else.

91:05 So they were gifted these nine

91:06 hundred seventy-five single channel and five

91:07 hundred seventy-five dual channel, high-level

91:08 electronic hearing protection systems. They

91:09 didn't receive them until they were actually in

91:10 theater.

91:11 So my mission was to collect

91:12 quality assurance data to see how they worked,

91:13 how soldiers liked them. So I thought, well, I

91:14 guess the best way to comment on one thing is

91:15 to compare it to another thing. And so I asked

91:16 -- I fitted all of these combat hearing aids

91:17 and then went back and took survey results, and

91:18 also measured their postdeployment audiogram

91:19 and compared it to their predeployment

91:20 audiogram to see if this group using this

91:21 high-level electronic TCAPS, tactical

91:22 communication and hearing protection system, if

91:23 they fared better than groups using different

91:24 hearing protectors.

91:25 So basically, I asked them how

Page 27 of 77

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92:01 they felt they worked in dismounted operations

92:02 versus mounted operations, radio communication,

92:03 situational awareness, comfort, a variety. So

92:04 I can -- I can review these slides --

92:08 - 92:24 Battler, Leanne (2020-09-10) 1:08

92:08 Q. Well, let's do -- Let's do a Re: [92:08 to 92:24] Re: [92:08 to 92:24]

92:09 summary. First of all, what you're looking at Pltf Obj 402/403; speculation; SUSTAINED

92:10 is TCAPS. Can you describe for the jury what 602/701/702

92:11 TCAPS is?

92:12 A. So TCAPS is the generic name to

92:13 encompass all electronic hearing systems, like

92:14 Kleenex is a brand of facial tissue, so, you

92:15 know, the QuietPro is a brand of TCAPS, same as

92:16 the Altor; anything electronic, anything that

92:17 has an active attenuation or amplification or

92:18 active noise reduction, or some combination of

92:19 those, designed to not only protect your

92:20 hearing but actually enhance your hearing

92:21 ability on the battlefield.

92:22 Q. And what is the price range of

92:23 TCAPS, like QuietPro, relative to the price of

92:24 Combat Arms Version 2 in your experience?

93:07 - 93:25 Battler, Leanne (2020-09-10) 1:08

93:07 A. At the time, this particular Re: [93:07 to 93:25] Re: [93:07 to 93:25]

93:08 system that I was evaluating, they were about a Pltf Obj Agree to 93:16-19; DEFER RULING

93:09 thousand dollars apiece. Disagree to the rest; 402/403;

93:10 Q. Okay. So the QuietPro you were 701/702

93:11 evaluating was about a thousand dollars apiece;

93:12 correct?

93:13 A. Yes. The dual channel was

93:14 slightly more expensive than the single-channel

93:15 units.

93:16 Q. Okay. And the approximate price

93:17 of the Combat Arms Version 2?

93:18 A. At the time, I think it was about

93:19 seven dollars.

93:20 Q. Okay. And you evaluated the

93:21 QuietPro, which was about a thousand dollars,

93:22 and the Combat Arms Version 2, which was

93:23 approximately seven dollars. And how did the

93:24 Combat Arms Version 2 perform for soldiers,

93:25 relative to the QuietPro?

94:04 - 94:23 Battler, Leanne (2020-09-10) 2:20

94:04 A. So I think right off the bat, one Re: [94:04 to 94:23] Re: [94:04 to 94:23]

94:05 of the first questions in the survey was what Pltf Obj 402/403; 802; SUSTAINED

94:06 kind of hearing protection did you use before, 602/701/702; speculation;

94:07 so what are you comparing the QuietPro to? And conjecture; 611 leading and

94:08 25 percent of the 79 respondents had used the compound

94:09 -- compared it to the Combat Arms earplug.

94:10 In terms of dismounted

94:11 operations, 35 percent of that group felt they

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94:12 were equal. Mounted operations, speech clarity

94:13 they felt was equal. Fatigue, seventy -- about

94:14 70 percent felt that they were the same. In

94:15 terms of generator -- around generator noise,

94:16 43 percent felt they were the same.

94:17 Situational awareness, 37 percent felt it was

94:18 the same. And that was -- so I mean, not bad.

94:19 Q. So your overall take-away, is it

94:20 fair to say, that the seven-dollar Combat Arms,

94:21 based on your personal experience, surveys of

94:22 soldiers, performed approximately the same as

94:23 the one thousand dollar QuietPro?

95:02 - 95:18 Battler, Leanne (2020-09-10) 2:39

95:02 A. For a good portion of them. Not Re: [95:02 to 95:18] Re: [95:02 to 95:18]

95:03 a majority, but a good portion, yes. Pltf Obj 402/403; 602/701/702; SUSTAINED

95:04 Q. Okay. What was your personal speculation; conjecture; 611

95:05 take-away from your study on use of the leading and compound

95:06 QuietPro versus use of the Combat Arms?

95:07 A. The QuietPro was kind of like a

95:08 smartphone, you had -- you had to have a lot of

95:09 practice with it before you could be

95:10 proficient. The Combat Arms earplug was much

95:11 more simple.

95:12 Q. And based on -- Based on your

95:13 experience, would you recommend to soldiers the

95:14 Combat Arms versus the QuietPro?

95:15 A. At the level -- At the level of

95:16 development that both products were at in 2008,

95:17 yes, I'd recommend the Combat Arms over the

95:18 QuietPro.

96:07 - 96:23 Battler, Leanne (2020-09-10) 1:22

96:07 Q. Okay. You said that at the level Re: [96:07 to 96:23] Re: [96:07 to 96:23]

96:08 of deployment that both products were at in Pltf Obj Vague/confusing; SUSTAINED

96:09 2008, you'd recommend to soldiers the Combat 402/403; 802; 602/701/702

96:10 Arms Version 2 over the QuietPro. Why is that?

96:11 A. Because it was more portable, it

96:12 was easier to operate, the price point was a

96:13 factor as well. Soldiers were afraid -- If a

96:14 piece of -- If a high-value piece of equipment

96:15 is lost, then oftentimes soldiers are

96:16 responsible to replace it. And I know of

96:17 several soldiers who said they would rather

96:18 lose hearing than risk losing a high --

96:19 high-value piece of equipment.

96:20 So they'd rather use a

96:21 seven-dollar piece, that if they have to buy it

96:22 or have it repaired, then seven dollars is more

96:23 affordable.

97:11 - 98:09 Battler, Leanne (2020-09-10) 2:32

97:11 Q. Okay. You fit -- You fit Re: [97:11 to 98:09] Re: [97:11 to 98:09]

97:12 thousands of soldiers with Combat Arms; Pltf Obj 802; 404; 403 OVERRULED as to

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97:13 correct? [97:1197:18], SUSTAINED

97:14 A. Yes. (hearsay) as to, [97:1998:09]

97:15 Q. And did any of them come back to

97:16 you and complain that the Combat Arms did not

97:17 adequately protect their hearing?

97:18 A. Not one.

97:19 Q. Did any of them come back to you Re: [97:19 to 98:09]

97:20 and complain that they experienced tinnitus Pltf Obj 802; 404; 403; PG1

97:21 after using the Combat Arms? and PG2 resolved via Doc.

97:22 A. (Witness shakes head.) 1693; PG7 resolved via Doc.

97:23 Q. Is that a no? 1702

97:24 A. No. I'm just -- I'm thinking.

97:25 Some soldiers would exaggerate or

98:01 feign hearing loss or tinnitus or both on their

98:02 postdeployment hearing test. But I don't

98:03 recall anyone saying it was a direct result of

98:04 using X, Y, or Z hearing protection.

98:05 Q. Okay. You said some soldiers

98:06 would exaggerate or feign hearing loss or

98:07 tinnitus on their postdeployment hearing test,

98:08 is that based on your personal experience and

98:09 observation of those soldiers?

98:13 - 98:22 Battler, Leanne (2020-09-10) 1:55

98:13 A. That is -- That is my experience, Re: [98:13 to 98:22] Re: [98:13 to 98:22]

98:14 yes. Pltf Obj 611 leading, SUSTAINED

98:15 Q. And how were you able to asked/answered; 402/403;

98:16 determine that? 602/701/702

98:17 A. We have -- Some of our tests

98:18 require no response from the patient. It's not

98:19 a matter of them pressing the button, their

98:20 brain will tell us how their hearing is.

98:21 Q. Okay. Can we go back to Tab 11,

98:22 which is Exhibit 5?

98:24 - 99:14 Battler, Leanne (2020-09-10) 1:43

98:24 Q. All right. Do you see the note

98:25 at the top it says: This note from Doug Ohlin

99:01 re: Combat Arms in Iraq, we are helping. And

99:02 that's from Elliott Berger.

99:03 Do you see that?

99:04 A. Yes.

99:05 Q. Have you met Elliott Berger?

99:06 A. Yes.

99:07 Q. And is it -- Is it your view that

99:08 he is competent in the field of hearing

99:09 protection, based on your interaction with him?

99:10 A. Yes.

99:11 Q. And do you agree that the Combat

99:12 Arms was helping in Iraq, based on your

99:13 personal experience?

99:14 A. Yes, I do.

99:18 - 100:01 Battler, Leanne (2020-09-10) 1:43

SUSTAINED. No new 

objections specific to 

McCombs.

The Court agrees with 

removal of 97:15-18 

per PTC ruling.

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99:18 Q. Let's go to Tab 6, and mark it as

99:19 the next exhibit, which is Exhibit Number 8.

99:20 This exhibit is an email from Kathy Gates to

99:21 Theresa Schultz and others, dated December 10,

99:22 2007.

99:23 Who is Kathy Gates?

99:24 A. Retired Colonel Dr. Kathy Gates

99:25 was our audiology consultant to the Surgeon

100:01 General.

100:06 - 100:09 Battler, Leanne (2020-09-10) 0:27

100:06 Q. Okay. So do you -- Do you recall

100:07 the date of when you deployed to Iraq for CAE

100:08 fitting?

100:09 A. It was in March 2008.

101:06 - 103:02 Battler, Leanne (2020-09-10) 3:51

101:06 Q. So it says: Leanne Cleveland,

101:07 audiologist at Fort Carson, serves as the

101:08 hearing expert and will deploy with the

101:09 division to continue to support this

101:10 initiative. Soldiers were provided

101:11 predeployment hearing service, parentheses

101:12 DOEHRS, audiogram, CAE fitting, health

101:13 education, and QP training/fitting.

101:14 My question is: Does that

101:15 refresh your recollection that you were

101:16 deployed in or around December 2007 to provide

101:17 CAE fitting and other predeployment hearing

101:18 services?

101:19 A. There were -- The planned process

101:20 was in motion for me to deploy in March, yeah.

101:21 Q. Okay. Okay. So you deployed

101:22 with the division to support this initiative in

101:23 2008?

101:24 A. I deployed after the division had

101:25 already left. I was an individual augmentee,

102:01 added later on.

102:02 Q. Okay. And did you provide CAE

102:03 fitting as part of that deployment?

102:04 A. Through the SRP site, yes, with

102:05 their predeployment as discussed -- As before,

102:06 everybody was fitted with the linear earplugs,

102:07 triple-flange or quad-flange, and Combat Arms,

102:08 provided we had them.

102:09 Q. Okay. And SRP stands for?

102:10 A. Soldier Readiness Processing

102:11 Center, also sometimes just called Soldier

102:12 Readiness Center.

102:13 Q. Okay. And you did not have any

102:14 more difficulty fitting the Combat Arms, than

102:15 you did other earplugs; correct?

102:16 A. Difficulty, like?

102:17 Q. Well, let me ask you this way:

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102:18 Comparing Combat Arms with other earplugs, in

102:19 your personal experience, you did not find that

102:20 the Combat Arms earplugs were more likely to

102:21 lose their seal than other earplugs; correct?

102:22 A. Not including electronic TCAPS,

102:23 correct.

102:24 Q. Okay. So I'm correct that Combat

102:25 Arms earplugs were not more likely to lose

103:01 their seal than other earplugs; yes?

103:02 A. In my experience, yes.

103:07 - 103:20 Battler, Leanne (2020-09-10) 1:55

103:07 Tab 3. This is Exhibit Number 9. Re: [103:07 to 103:20] Re: [103:07 to 103:20]

103:08 Do you recognize this document? Pltf Obj 802; 403; Foundation; SUSTAINED

103:09 A. Yes. Speculation 602; conjecture;

103:10 Q. And what is it? 701/701

103:11 A. This is a quote from the Ron

103:12 Millis email to my husband, which my husband

103:13 forwarded to Doug Ohlin. And Doug said: Oh,

103:14 this is awesome. Can we use this -- Do you

103:15 think he'd mind if we use this in the card?

103:16 Q. So the document, Exhibit 9, this

103:17 is the wallet card that was provided to

103:18 soldiers, by the Army, in connection with the

103:19 Combat Arms Version 2?

103:20 A. Yes.

104:04 - 104:21 Battler, Leanne (2020-09-10) 1:04

104:04 Q. Okay. So the person who decided Re: [104:04 to 104:21] Re: [104:04 to 104:21]

104:05 to use the comment from Ron Millis on the card Pltf Obj 802; 403; 602; SUSTAINED (the

104:06 was Doug Ohlin, who was with the Army; correct? Speculation; conjecture comment is, hearsay)

104:07 A. Yes.

104:08 Q. And the card says at the bottom:

104:09 USACHPPM; right?

104:10 A. Yes.

104:11 Q. And, again, CHPPM is United

104:12 States Army Center for Health Promotion and

104:13 Preventative Medicine. So that's who the

104:14 wallet card came from; correct?

104:15 A. Yes.

104:16 Q. And were you -- When you saw this

104:17 wallet card, were you proud of the wallet card

104:18 and the fact that it contained a quote from Ron

104:19 Millis, who you had fitted with an earplug and

104:20 whose hearing had been protected by the Combat

104:21 Arms?

104:24 - 106:02 Battler, Leanne (2020-09-10) 2:52

104:24 Q. Based on your personal Re: [104:24 to 106:02] Re: [104:24 to 106:02]

104:25 experience. Pltf Obj 802; 402/403; SUSTAINED

105:01 A. Yes, I was proud. speculation; 602/701/702

105:02 Q. And did -- When the ear -- When

105:03 the wallet card came out, do you -- do you

105:04 recall discussing with anyone: Hey, this is

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105:05 based on a quote of somebody who I know?

105:06 A. Yes.

105:07 Q. Can you describe those

105:08 conversations for the jury, to the best of your

105:09 recollection?

105:10 A. I -- I had a -- Ron sent me a

105:11 photo of him in all his battle rattle in Iraq,

105:12 and I used it in my hearing health briefings.

105:13 I said: Here is Lieutenant Colonel Ron Millis,

105:14 and there's his comment. And all the soldiers

105:15 loved it. Oh, it's so funny. It's Ron Millis.

105:16 They loved it during the briefings.

105:17 Q. Okay. When were these briefings

105:18 given?

105:19 A. Usually during a safety

105:20 stand-down day annually. Soldiers talk about,

105:21 you know, alcohol and heat injury, cold injury,

105:22 sexual harassment, it's just a day of just mass

105:23 education. And we tried to get our

105:24 thirty-minute presentation in there about

105:25 hearing protection, and the Army Hearing

106:01 Program, hearing readiness, purpose of

106:02 profiles, all of that.

106:05 - 108:11 Battler, Leanne (2020-09-10) 3:21

106:05 Q. Okay. In the first bullet at the

106:06 bottom it says: Check proper fit by gently

106:07 tugging on plugs for tension.

106:08 Do you agree with that and is

106:09 that the part of the procedure that you used in

106:10 the clinic to check the proper fit of the

106:11 Combat Arms earplug?

106:12 A. Yes. That's -- I would call it

106:13 the tug test.

106:14 Q. Okay. So describe the tug test

106:15 and who did it and how it was done.

106:16 A. So I or my technicians, we would,

106:17 again, give the soldiers the preformed,

106:18 regular, nonlinear -- excuse me, linear

106:19 triple-flanged or quad-flanged earplugs, the

106:20 inexpensive version. Rather than us physically

106:21 putting them in, I said it's important for the

106:22 soldiers to know how to insert the hearing

106:23 protection themselves, because I would say:

106:24 I'm not going to be out there on the

106:25 battlefield next to you to put your earplugs

107:01 in, you need to learn how to do this yourself.

107:02 So we would demonstrate, and then

107:03 make them do it themselves, reaching up and

107:04 over with the opposite hand, pulling the pinna

107:05 up and back to straighten out the ear canal,

107:06 then pushing and twisting and turning until

107:07 that last flange was flush with the opening of

107:08 the ear canal; then letting go of the ear, and

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107:09 doing the tug test. And then we would do a tug

107:10 test on top of it to make sure that they had

107:11 that suction or resistance.

107:12 Q. Lieutenant Colonel Battler, you

107:13 testified earlier about your concern with the

107:14 Rapid Fielding Initiative and Combat Arms

107:15 earplugs being given out as part of the Rapid

107:16 Fielding Initiative without instruction and

107:17 fitting. Was part of that concern is that they

107:18 were not able to see the clinic demonstration

107:19 that you just described?

107:20 A. Yes. Yes. Definitely.

107:21 Q. And why is that?

107:22 A. Because you don't know what you

107:23 don't know. How could they know?

107:24 Q. And when you say how could they

107:25 know, you're talking about soldiers who

108:01 received their Combat Arms earplugs as part of

108:02 the Rapid Fielding Initiative?

108:03 A. Right. Just looking at it, they

108:04 just think it's a funny-looking earplug. They

108:05 -- You know, when I actually explained that one

108:06 side was linear and the other side was

108:07 nonlinear, and the reason for them being color

108:08 coded the way they were, one is for dismounted

108:09 operations, the other was for mounted, there

108:10 was always a light going on: Oh, why didn't

108:11 anybody ever tell me that?

108:20 - 108:24 Battler, Leanne (2020-09-10) 0:14

108:20 Q. And then there's -- It actually

108:21 has a picture on the wallet card with the

108:22 flange folded back, do you see that, the lower

108:23 right?

108:24 A. Yes, I do see that.

109:09 - 110:15 Battler, Leanne (2020-09-10) 2:00

109:09 Q. All right. Let's mark that fact

109:10 sheet as Exhibit 10. It's Tab 2.

109:11 Have you seen this document

109:12 before, Lieutenant Colonel Battler?

109:13 A. Yes.

109:14 Q. Can you describe for the jury

109:15 what it is?

109:16 A. So this is -- explains how much

109:17 attenuation the Combat Arms earplug provides in

109:18 response to a variety of exposures to impulse

109:19 blasts.

109:20 Q. Okay. And it's called Just the

109:21 Facts, the Combat Arms Earplug, that's the

109:22 title of the document; correct?

109:23 A. Yes.

109:24 Q. Okay. Could you -- The paragraph

109:25 that says communication and detection

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110:01 capabilities, could you read that paragraph

110:02 beginning with communication, and down to the

110:03 second-to-last sentence. You don't need to

110:04 read the last sentence.

110:05 A. Communication and detection

110:06 capabilities. While high-frequency impulse

110:07 noise is significantly reduced, most speech

110:08 energy is passed. In addition, a detection

110:09 model developed at the Army Research Lab

110:10 predicts a normal-hearing soldier with an H1

110:11 profile, can detect a truck with a

110:12 low-frequency noise signature at the same

110:13 distance, 800 meters, with or without the

110:14 nonlinear plug. That detection capability is

110:15 cut in half with conventional foam plugs.

112:11 - 113:25 Battler, Leanne (2020-09-10) 2:22

112:11 Q. If you come back from that

112:12 call-out back to the document, and go to the

112:13 next page of this, do you see the part that

112:14 says -- the graphic that says: Detection of

112:15 sound by?

112:16 Can you describe what that

112:17 graphic shows and how it relates to situational

112:18 awareness?

112:19 A. Yes. So we use this in a lot of

112:20 our hearing health education briefings. And

112:21 basically it's saying that with an unoccluded

112:22 ear, so nothing in your ear canal at all, if

112:23 you have H1 hearing, then you have the ability

112:24 to hear a rifle bolt closing, so that

112:25 (indicating) sound, at a distance of a thousand

113:01 meters; versus if you are wearing the foam

113:02 earplug, you don't hear that same rifle bolt

113:03 closing until the person making noise is sixty

113:04 meters from your position; in other words,

113:05 you're a dead man.

113:06 Along comes the Combat Arms

113:07 earplug, not quite as good as an unoccluded

113:08 ear, but you can hear that rifle bolt closing

113:09 within five hundred meters and would still give

113:10 you some time to react and survive.

113:11 Q. So was that an advantage of the

113:12 Combat Arms earplug based on your personal

113:13 experience and communications with soldiers?

113:14 A. Yes.

113:15 Q. Okay. If you go to user tips in

113:16 this document, where it says, in the second

113:17 bullet point: Like any earplug, it is

113:18 essential that the Combat Arms be properly

113:19 inserted.

113:20 Do you agree with that?

113:21 A. Yes.

113:22 Q. And that's just as true for the

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113:23 Combat Arms, as it is for other earplugs;

113:24 right?

113:25 A. Yes.

114:04 - 114:10 Battler, Leanne (2020-09-10) 1:51

114:04 Q. Okay. Let's go to Tab 13. And Re: [114:04 to 114:10] Re: [114:04 to 114:10]

114:05 let's go to Bates number 051171. Pltf Obj Foundation; 802; SUSTAINED

114:06 If you look down at the bottom, 402/403; 602/701/702

114:07 that's an email from Richard Cleveland to you

114:08 and Dr. Ohlin, dated July 8 regarding email

114:09 from Iraq via Diggs; right?

114:10 A. Yes.

116:24 - 117:04 Battler, Leanne (2020-09-10) 0:21

116:24 Q. Based on -- Based on your Re: [116:24 to 117:04] Re: [116:24 to 117:04]

116:25 experience, do you believe that the Pltf Obj 701/702; 403 SUSTAINED

117:01 overwhelming feedback on the Combat Arms

117:02 Version 2 has been positive?

117:03 A. In my experience, yes, very

117:04 positive.

117:10 - 117:11 Battler, Leanne (2020-09-10) 0:06

117:10 MR. NOMELLINI: We're going back Re: [117:10 to 117:11] Re: [117:10 to 117:11]

117:11 to Exhibit 2, which is also Tab 5. Pltf Obj Foundation; 802; 403; SUSTAINED

702/701

117:14 - 120:05 Battler, Leanne (2020-09-10) 4:24

117:14 Q. If you could go to the page DoD Re: [117:14 to 120:05] Re: [117:14 to 120:05]

117:15 164. Pltf Obj Foundation; 802; SUSTAINED (hearsay

117:16 A. (Witness complies.) 602/701/702; speculation; in, document)

117:17 Q. Go to the bottom of that page, 402/403; 404; 611

117:18 there is an email from Kathy Gates to various

117:19 individuals, including the witness, dated

117:20 October 6, 2005. Can you describe what this --

117:21 what this email is, Lieutenant Colonel Battler?

117:22 A. Colonel Gates -- I don't remember

117:23 this exact -- but there were instances where

117:24 she would send a request for information, you

117:25 know, en masse, to several of us, asking for

118:01 assistance.

118:02 Q. Okay. So Colonel Gates is asking

118:03 you and others for feedback on the Combat Arms

118:04 Version 2 in 2005; correct?

118:05 A. Yes.

118:06 Q. Okay. Then if you look at the

118:07 prior page, DoD 163, which is part of Exhibit

118:08 2, you provided Colonel Gates with two success

118:09 stories in relation to the Combat Arms; right?

118:10 A. Yes.

118:11 Q. Okay. Looking at Exhibit 2, can

118:12 you describe the first success story with

118:13 respect to the Combat Arms that you shared with

118:14 Colonel Gates?

118:15 A. Yes. You want me to read it?

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118:16 Q. Sure. Why don't you -- Why don't

118:17 you read -- read the first -- the first item.

118:18 If you could please read the first success

118:19 story that you shared with Colonel Gates

118:20 regarding the Combat Arms on October 6, 2005.

118:21 A. All right. Ma'am, two success

118:22 stories I'd like to share. First, several

118:23 months ago, I saw an O6, so a full colonel,

118:24 brigade commander, for his postdeployment OIF,

118:25 Operation Iraqi Freedom, audiometric eval; so

119:01 his postdeployment DOEHRS test. He told me

119:02 that he had not heard of the Combat Arms

119:03 earplugs until he was in theater. He did not

119:04 know what they looked like, but was determined

119:05 to get them for his entire brigade.

119:06 He inquired with some local Iraqi

119:07 supply company and ended up purchasing what he

119:08 thought were Combat Arms earplugs, but in

119:09 reality they were only foam plugs. Finally, he

119:10 made some calls back to Fort Hood and was able

119:11 to get his staff to order them here -- so I was

119:12 at Fort Hood here -- and then shipped them out

119:13 to the brigade. They were finally received by

119:14 the soldiers in Iraq over four months after

119:15 they initially deployed.

119:16 The colonel told me that he was

119:17 sitting in the back of his HMMWV, so

119:18 high-mobility multi- -- high-purpose

119:19 multiwheeled vehicle, HMMWV with his new Combat

119:20 Arms earplugs in his ears, for the first time,

119:21 when he experienced his first IED blast, so

119:22 improvised explosive device, at close range.

119:23 He said that his soldiers in the

119:24 HMMWV had just been grumbling to him about his

119:25 insistence that they all wore their Combat Arms

120:01 earplugs, but that they were all very glad they

120:02 had their Combat Arms earplugs after the blast,

120:03 and that they wore them every day afterwards.

120:04 By the way, the colonel had no

120:05 hearing loss and no tinnitus upon redeployment.

120:08 - 124:10 Battler, Leanne (2020-09-10) 6:52

120:08 Q. Why was that a success story Re: [120:08 to 124:10] Re: [120:08 to 124:10]

120:09 relating to the Combat Arms, in your view? Pltf Obj 701/702; 402/403; SUSTAINED

120:10 A. Oh, because he had no hearing 802; conjecture; speculation;

120:11 loss and tinnitus. We had prevented hearing 611 leading, vague; 602; 404

120:12 loss, that's our mission.

120:13 Q. When you say it had prevented

120:14 hearing loss, you're referring to the Combat

120:15 Arms earplugs that had prevented hearing loss?

120:16 A. Yes.

120:17 Q. And you also had a second success

120:18 story to share with Colonel Gates; correct?

120:19 A. Yes.

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120:20 Q. And that related to information

120:21 that you obtained from a postdeployment health

120:22 assessment survey; right?

120:23 A. Yes.

120:24 Q. And you asked several soldiers

120:25 questions regarding the Combat Arms plug at the

121:01 request of Aearo?

121:02 A. Yes.

121:03 Q. Okay. And can you read the last

121:04 -- the last sentence in paragraph two,

121:05 beginning with: I wish.

121:06 A. I wish all soldiers believed in

121:07 the merit of the Combat Arms earplug like this

121:08 specialist .50 cal gunner does. I especially

121:09 liked his comment that he would not change

121:10 anything about the Combat Arms earplug or the

121:11 case, because they worked for two hundred and

121:12 five convoys.

121:13 Q. And why did you like the comment

121:14 that the Combat Arms had worked for two hundred

121:15 and five convoys?

121:16 A. Because he felt confident enough

121:17 to wear it. He -- it -- His comment indicated

121:18 to me that he knew he needed some protection,

121:19 and also felt confident that he was not going

121:20 to have overattenuation.

121:21 Q. Okay. And a .50 caliber gunner,

121:22 based on your experience, that's someone who,

121:23 if they do not wear appropriate hearing

121:24 protection, can experience hearing loss;

121:25 correct?

122:01 A. Yes.

122:02 Q. And so question number four, you

122:03 asked him when this .50 caliber gunner wore the

122:04 CAE, and what did he tell you?

122:05 A. The right part of that is cut

122:06 off.

122:07 There we go. Thank you. He

122:08 said: I wore the yellow side in my ear the

122:09 whole time we were on the convoy until we were

122:10 in the gate. And if there were mortars coming

122:11 down outside, sometimes I would wear the yellow

122:12 end in one ear and the green end in the other

122:13 ear, like when I had the yellow in with

122:14 earpiece and the short wave radio for talking

122:15 from truck to truck and also inside the truck,

122:16 and the green end in the opposite ear.

122:17 Q. Okay. And then in the other

122:18 question, you asked him to describe the

122:19 circumstances when he encountered loud noises

122:20 using the -- while using the CAEv2, and what

122:21 did he say?

122:22 Item number one. Describe the

122:23 circumstances.

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122:24 A. Oh, so he said: Mostly in

122:25 convoys. And then in two or three mortars

123:01 going off near the sleeping quarters. So he

123:02 must have been wearing them when he was in his

123:03 quarters.

123:04 Q. Question number two, you asked

123:05 the soldier did he believe his hearing had been

123:06 affected by the loud noises that he had heard,

123:07 and what did he say?

123:08 A. He said -- He said no. He wore

123:09 his earplugs all the time and if he had not

123:10 worn them, he believed that he would have -- he

123:11 would have incurred hearing loss.

123:12 Q. So did you understand that to

123:13 mean that the Combat Arms Version 2 had

123:14 protected the hearing of this .50 caliber

123:15 gunner?

123:16 A. Yes.

123:17 Q. And were you proud of that and is

123:18 that part of the reason why you shared that

123:19 information with your superior?

123:20 A. Yes.

123:21 Q. If you look at question number

123:22 nine, you asked a soldier whose hearing was

123:23 protected by the Combat Arms if there's

123:24 anything that he indicated did not work or how

123:25 it might be improved, and what was his

124:01 response?

124:02 A. He said he would not change

124:03 anything at all.

124:04 Q. And what did that indicate to you

124:05 about the Combat Arms?

124:06 A. It indicated to me that -- that

124:07 they were a great fit and a great product.

124:08 Q. And is it your view today, based

124:09 on your personal experience, that the Combat

124:10 Arms is a great product?

124:13 - 127:08 Battler, Leanne (2020-09-10) 5:06

124:13 Q. Based on your personal experience Re: [124:13 to 127:08] Re: [124:13 to 127:08]

124:14 and communication with soldiers? Pltf Obj 701/702; 802; SUSTAINED (hearsay)

124:15 A. Based on my experience, yes, I 402/403; 404; conjecture; as to [124:13124:16],

124:16 think it's a great product. 701/702; 611 leading; OVERRULED as to [124:17126:01]

124:17 Q. And why do you think the Combat speculation; 602; improper SUSTAINED as to 126:02,

124:18 Arms is a great product, based on your bolstering 126:19] OVERRULED as to

124:19 experience? 126:20, 126:24] SUSTAINED as Re: [124:13 to 124:16]

124:20 A. I mean, on the firing ranges, for to [126:25, 127:08] Pltf Obj 701/702; 802;

124:21 sure, but especially downrange. You know, I 402/403; 404; conjecture;

124:22 wore them and experienced that I knew I felt 701/702; 611 leading;

124:23 protected, but not overly protected. I still speculation; 602; improper

124:24 had situational awareness. bolstering; PG7 resolved via

124:25 Q. And why is it important that with Doc. 1702

125:01 the Combat Arms you felt protected but not

125:02 overall protected? Re: [126:02 to 126:19]

SUSTAINED. No new 

objection specific to 

McCombs

SUSTAINED. No new 

Page 39 of 77

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125:03 A. So if there was weapons fire or Pltf Obj 701/702; 802;

125:04 blasts, noise -- hazardous noise exposure, then 402/403; 404; conjecture;

125:05 I knew that I would not have permanent hearing 701/702; 611 leading;

125:06 loss. speculation; 602; improper

125:07 Q. And based on your personal bolstering; PG7 resolved via

125:08 experience, did the Combat Arms, in fact, Doc. 1702

125:09 protect your hearing?

125:10 A. I believe so. Re: [126:25 to 127:08]

125:11 Q. And you do not have permanent Pltf Obj 701/702; 802;

125:12 hearing loss today; correct? 402/403; 404; conjecture;

125:13 A. I have excellent hearing. 701/702; 611 leading;

125:14 Q. And you do not have tinnitus speculation; 602; improper

125:15 today; correct? bolstering; PG7 resolved via

125:16 A. Not today. Doc. 1702

125:17 Q. And how many times have you used

125:18 the Combat Arms?

125:19 A. Every year for seventeen years.

125:20 Q. Okay. So you've used the Combat

125:21 Arms from approximately 2003 to the present;

125:22 correct?

125:23 A. Yes.

125:24 Q. And they've protected your

125:25 hearing throughout that time?

126:01 A. Yes.

126:02 Q. Let's go to DoD 190, in the same

126:03 document. DoD 190, at the top, is a email from

126:04 Kathy Gates to Leanne Cleveland and others,

126:05 dated March 7, 2006, attaching recent hearing

126:06 conservation articles.

126:07 And I want to direct your

126:08 attention to the next page, which is DoD 191,

126:09 which is part of the article that was

126:10 forwarded, and in particular, handing -- going

126:11 down to halfway down the page where it starts

126:12 with the words: Handing them out with written

126:13 instructions.

126:14 Okay. So in this article you

126:15 were forwarded it says: Handing them out with

126:16 written instructions isn't effective, said

126:17 Douglas Ohlin, an audiologist who heads the

126:18 Hearing Conservation Program. Most people have

126:19 to be shown who wear earplugs.

126:20 Do you agree that handing out

126:21 earplugs, including the Combat Arms, with only

126:22 written instructions is not effective and that

126:23 people have to be shown how to wear earplugs?

126:24 A. Yes, I agree.

126:25 Q. And why is it important, in your

127:01 view, then, based on your experience, not to

127:02 rely on written instructions in providing

127:03 soldiers with earplugs?

127:04 A. I mean, look at soldiers.

127:05 They're not people who sit behind a desk.

127:06 They're -- We're all attention deficit

The Court agrees with 

removal of 125:07-

126:01 per PTC ruling.

objection specific to 

McCombs

SUSTAINED. No new 

objection specific to 

McCombs

Page 40 of 77

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127:07 disorder; we need that hands-on training.

127:08 We're not book people.

127:19 - 129:01 Battler, Leanne (2020-09-10) 3:33

127:19 Q. Okay. And so you believe that Re: [127:19 to 129:01] Re: [127:19 to 129:01]

127:20 it's important to sort of work hands-on with an Pltf Obj Foundation; 802; OVERRULED as to

127:21 individual soldier, or military personnel, to 402/403; 701/702; speculation; 127:19, 127:25, SUSTAINED as

127:22 show them how to use the plug and to make sure conjecture to [128:01, 129:01] (hearsay)

127:23 that it fits correctly, as opposed to using a

127:24 written instruction; correct? Re: [128:01 to 129:01]

127:25 A. Exactly. Pltf Obj Foundation; 802;

128:01 Q. Okay. Let's go to DoD 195 from 402/403; 701/702; speculation;

128:02 that document. This is an email -- DoD 195, conjecture; PG1 and PG2

128:03 which is part of Exhibit 2, is an email from resolved via Doc. 1693; PG7

128:04 Kathy Gates to Leanne Cleveland and others resolved via Doc. 1702

128:05 dated June 13, 2006, forwarding data from Fort

128:06 Polk. Do you see that?

128:07 A. Yes, sir.

128:08 Q. And if you go below, there is an

128:09 email from Kathy Gates to Christian Reid that

128:10 Kathy Gates is in turn forwarding to you which

128:11 reports data from the Louisiana National Guard

128:12 regarding the Combat Arms earplug.

128:13 Do you see that?

128:14 A. Yes.

128:15 Q. And it's reported that 86 percent

128:16 of soldiers reported that they found the Combat

128:17 Arms earplug beneficial in Combat Arms

128:18 operation. Was that level of satisfaction

128:19 consistent with your experience?

128:20 A. Yes.

128:21 Q. And 70 percent of soldiers

128:22 reported they felt the Combat Arms earplugs

128:23 protects their ears as well as improves

128:24 communication ability in noise. Was that

128:25 consistent with your experience?

129:01 A. Yes.

137:17 - 137:24 Battler, Leanne (2020-09-10) 0:27

137:17 Q. And did you receive feedback from Re: [137:17 to 137:24] Re: [137:17 to 137:24]

137:18 some soldiers that other earplugs were more Pltf Obj 802; 402/403; 602/611 SUSTAINED

137:19 comfortable than the CAEv2? calls for speculation

137:20 A. Yes.

137:21 Q. Okay. And that issue with

137:22 respect to comfort, in your experience, that

137:23 did not have anything to do with the CAEv2's

137:24 ability to protect users from noise; correct?

138:03 - 138:07 Battler, Leanne (2020-09-10) 0:21

138:03 Q. Based on your personal experience Re: [138:03 to 138:07] Re: [138:03 to 138:07]

138:04 and what they reported to you. Pltf Obj 802; 402/403; 701/702 SUSTAINED

138:05 A. If it's not comfortable, then

138:06 they're not going to wear it. But that doesn't

138:07 mean it didn't fit.

SUSTAINED. No new 

objection specific to 

McCombs

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138:14 - 138:16 Battler, Leanne (2020-09-10) 0:08

138:14 Q. And that's also based on your Re: [138:14 to 138:16] Re: [138:14 to 138:16]

138:15 personal experience and your communications Pltf Obj 611 asked/answered; SUSTAINED

138:16 with soldiers; correct? 802; 402/403; 701/702

138:19 - 139:03 Battler, Leanne (2020-09-10) 1:35

138:19 A. You know, the Army combat helmet Re: [138:19 to 139:03] Re: [138:19 to 139:03]

138:20 was -- gave me an excruciating headache, but it Pltf Obj 402/403; conjecture; OVERRULED

138:21 protected me. 701/702; 611 leading;

138:22 Q. Okay. And you say the same is speculation

138:23 true with respect to the Combat Arms, it

138:24 protected you; correct?

138:25 A. If it was properly fitted, and if

139:01 it was the right size, in my experience, yes.

139:02 Q. And it has to be properly fitted

139:03 by medically trained personnel; correct?

139:06 - 139:15 Battler, Leanne (2020-09-10) 0:22

139:06 A. It needed to be fitted by the Re: [139:06 to 139:15] Re: [139:06 to 139:15]

139:07 soldier who was using it, who received adequate Pltf Obj Conjecture; 701/702; OVERRULED as to

139:08 training from medically trained personnel, yes. 402/403; 611 leading, [139:06, 139:08], SUSTAINED as

139:09 Q. The soldier needs to receive asked/anwered to [139:09, 139:15]

139:10 adequate training from medically trained

139:11 personnel; correct?

139:12 A. Correct.

139:13 Q. It's not sufficient to hand out

139:14 the earplugs without training, like was done in

139:15 the Rapid Fielding Initiative; correct?

139:18 - 139:22 Battler, Leanne (2020-09-10) 0:22

139:18 Q. Based on your experience and Re: [139:18 to 139:22] Re: [139:18 to 139:22]

139:19 interaction with soldiers. Pltf Obj 402/403; incomplete SUSTAINED

139:20 A. When the Army issued me my M9, designation; nonresponsive

139:21 they didn't give me a pamphlet on how to answer; 701/702

139:22 operate it.

140:09 - 141:16 Battler, Leanne (2020-09-10) 2:12

140:09 Q. Okay. Let's go to Tab 15. I'm

140:10 going to mark this as Exhibit 13. You then --

140:11 you provided Aearo and Brian Myers with

140:12 feedback that you obtained from soldiers;

140:13 correct?

140:14 A. Yes.

140:15 Q. And who asked you to obtain

140:16 feedback from soldiers on the Combat Arms?

140:17 A. This was a while ago. I remember

140:18 the deputy -- one of the deputy commanders at

140:19 Darnell Hospital said: Hey, we're doing this

140:20 initial postdeployment health reassessment

140:21 survey, we're making history, this is a big

140:22 deal, I want you to participate.

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140:23 So I -- I don't remember if I

140:24 reached out to Doug or someone else or if I

140:25 reached out to Colonel Tuten, reached out to

141:01 Doug. I'm not sure exactly how everything

141:02 transpired, but -- but I wanted to do a good

141:03 job and get data, and so I -- Right. There was

141:04 communication where I said help me ask the

141:05 right questions.

141:06 Q. Okay. If you look down -- If you

141:07 look down the chain of Exhibit 13, there is an

141:08 email from Brian Myers, to you, dated August

141:09 17, 2005, where he lays out questions for you

141:10 to ask; right?

141:11 A. Yes.

141:12 Q. And from your perspective as an

141:13 audiologist, was that a good thing for an

141:14 earplug manufacturer to do, to solicit feedback

141:15 from the soldiers and their personal

141:16 experiences with the earplugs?

141:19 - 143:11 Battler, Leanne (2020-09-10) 2:14

141:19 Q. If you could just limit it to Re: [141:19 to 143:11] Re: [141:19 to 143:11]

141:20 your personal experience. Pltf Obj 802; conjecture; OVERRULED as to

141:21 A. Yes. Any -- Anyone who is asking 701/702; 402/403; 611 [141:19, 143:03], SUSTAINED as

141:22 for how can they improve a product is -- Sure. vague/confusing, compound and to [143:04, 143:11] (hearsay)

141:23 All data is good data. leading questions; 602

141:24 Q. Okay. And one of the speculation

141:25 questions -- If you look at question number

142:01 one, the soldier is asked to describe the

142:02 circumstances when they encounter loud noises;

142:03 right?

142:04 A. Yes.

142:05 Q. And then the soldier is asked

142:06 whether their hearing has been affected by the

142:07 loud noises; right?

142:08 A. Yes.

142:09 Q. And in question number four, the

142:10 soldier is asked about when they wore the CAE;

142:11 right?

142:12 A. Yes.

142:13 Q. And those are all good questions

142:14 for getting feedback on the CAE?

142:15 A. I believe so, yes.

142:16 Q. Okay. And you attached, to your

142:17 email back to Aearo, some of the feedback you

142:18 had gotten from soldiers; right?

142:19 A. Yes.

142:20 Q. Did Aearo or 3M restrict you in

142:21 any way, in terms of the questions that you

142:22 could ask to the soldiers? Were you free to

142:23 communicate with them as you wished?

142:24 A. Yes.

142:25 Q. Okay. So you never -- They never

143:01 instructed you: These types of questions are

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143:02 off limits; right?

143:03 A. Oh, no. Never.

143:04 Q. And if we scroll down to 3M MDL

143:05 000285548, that's the -- that's the .50 caliber

143:06 gunner we talked about before; right?

143:07 A. Yes.

143:08 Q. And his hearing was protected by

143:09 the Combat Arms earplug, based on your survey;

143:10 right?

143:11 A. I believe so, yes.

143:18 - 144:10 Battler, Leanne (2020-09-10) 1:00

143:18 Q. Question number four that you Re: [143:18 to 144:10] Re: [143:18 to 144:10]

143:19 asked, what was your question and what was Pltf Obj 802; conjecture; SUSTAINED (hearsay)

143:20 their response? 701/702; 402/403; 611

143:21 A. Okay. So I asked him: When did vague/confusing, compound and

143:22 you wear the Combat Arms earplug? And he said leading questions; 602

143:23 he wore them for approximately one week, but speculation

143:24 they were too irritating, too deep inside the

143:25 ear canal. And he reports that he used the

144:01 orange triple-flange corded version that his

144:02 father gave to him rather than the Combat Arms

144:03 earplug that was issued to him.

144:04 Q. Okay. And if you look at the

144:05 next page, 285551, in response to question

144:06 number nine, what did the second soldier who

144:07 you surveyed indicate about the effectiveness

144:08 of the Combat Arms Earplug Version 2?

144:09 A. He said that when he wore them,

144:10 they were effective.

145:04 - 146:16 Battler, Leanne (2020-09-10) 3:34

145:04 Q. And has that also been a topic of Re: [145:04 to 146:16] Re: [145:04 to 146:16]

145:05 discussion between you and other audiologists, Pltf Obj 802; 402/403; 404; SUSTAINED (hearsay)

145:06 that there sometimes can be difficulties in 406; 611; 602/701/702;

145:07 getting soldiers to wear earplugs, particularly conjecture; speculation

145:08 in a combat environment?

145:09 A. Yes.

145:10 Q. Okay. And what's been the

145:11 substance of those discussions you've had with

145:12 audiologists about the difficulty of getting

145:13 soldiers to wear earplugs in the combat -- in a

145:14 combat environment?

145:15 A. Probably the two most common

145:16 themes are for people who already have some

145:17 level of hearing loss, even the -- I mean, the

145:18 Combat Arms earplug -- well, all earplugs, are

145:19 going to provide some attenuation. So when you

145:20 already have hearing loss, that extra

145:21 attenuation really makes communication

145:22 difficult. So that population is -- is really

145:23 at a disadvantage, because then they don't wear

145:24 their hearing protection and then they incur

145:25 even more hearing loss.

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146:01 And then I think the second one,

146:02 it's less now. But, again, at that time there

146:03 was a school of thought where it was almost

146:04 like hearing loss was your badge of manhood and

146:05 it was -- it was -- they were proud of hearing

146:06 loss. Yeah. You know, guns, mortars, I've

146:07 been around all this noise, and I've got

146:08 hearing loss; I'm a man. That mindset is a lot

146:09 better now than it used to be. But I've heard

146:10 of senior noncommissioned officers encouraging

146:11 their younger troops to not use hearing

146:12 protection, to toughen their ears and get used

146:13 to the noise.

146:14 And in some cases, even going out

146:15 into a fire fight hoping to get a perforated

146:16 eardrum so that would give you a Purple Heart.

147:06 - 148:01 Battler, Leanne (2020-09-10) 1:28

147:06 Q. Yeah. So the first two -- The Re: [147:06 to 148:01] Re: [147:06 to 148:01]

147:07 first two respondents of the four you talked Pltf Obj 802; 402/403; 404; SUSTAINED

147:08 to, indicating that the -- indicated that the 602/701/702

147:09 Combat Arms were effective in protecting their

147:10 ear; right?

147:11 A. The -- Yes. Correct.

147:12 Q. Okay. And then we looked at --

147:13 Let's look at the next respondent, MDL 285552.

147:14 And that respondent indicated, in response to

147:15 question number five, that the -- he used -- he

147:16 or she used the Combat Arms for one week and

147:17 then lost them; correct?

147:18 A. Yes.

147:19 Q. And the Combat Arms can't provide

147:20 hearing protection if it's lost; fair to say?

147:21 A. Correct.

147:22 Q. And the last soldier you talked

147:23 to, 3M MDL 285554, indicated in response to

147:24 question number four, that he rarely used the

147:25 Combat Arms earplug; right?

148:01 A. Yes. Correct.

148:12 - 150:17 Battler, Leanne (2020-09-10) 3:51

148:12 Q. Okay. But based on -- Based on Re: [148:12 to 150:17] Re: [148:12 to 150:17]

148:13 all your -- all your communications with any Pltf Obj 802; 402/403; OVERRULED as to

148:14 service member, you've already indicated that conjecture; 701/702; [148:12, 148:21], SUSTAINED as

148:15 no service member indicated to you that the Foundation; speculation to [148:22, 150:17] (hearsay)

148:16 Combat Arms earplug was ineffective in terms of

148:17 protecting hearing; right?

148:18 A. Correct.

148:19 Q. And these are among the service

148:20 members that you talked to; right?

148:21 A. Yes.

148:22 Q. Now, they did have other

148:23 criticisms of the Combat Arms, like that they

148:24 didn't come in the right size for them; right?

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148:25 A. Right.

149:01 Q. And that was addressed in

149:02 subsequent versions of the Combat Arms earplug,

149:03 the version 3 and version 4; correct?

149:04 A. Yes.

149:05 Q. And that's partly based on the

149:06 feedback that you received in surveys from

149:07 soldiers; correct?

149:08 A. I like to think that my data was

149:09 contributory, yes.

149:10 Q. All right. And if you go to

149:11 question two, do you believe that your hearing

149:12 has been affected by the loud noises you heard?

149:13 Why or why not? The service member responded:

149:14 Yes. I didn't wear the earplugs all the time

149:15 because they were too big and they hurt and

149:16 they didn't work very well.

149:17 Do you see that?

149:18 A. Yes.

149:19 Q. Okay. So first of all, he's

149:20 indicating that they were not the right --

149:21 Combat Arms Version 2 was not the right size

149:22 for him; right?

149:23 A. Yes.

149:24 Q. And if the Combat Arms is not the

149:25 right size for somebody, they shouldn't -- they

150:01 shouldn't even be using that earplug; right?

150:02 A. Correct.

150:03 Q. Okay. And where he says they

150:04 didn't work very well, do you know whether

150:05 that's indicating anything about the ability of

150:06 the earplug to attenuate noise, as opposed to

150:07 the ability to, you know, hear conversation

150:08 with the yellow end? Do you know specifically

150:09 what that's referring to?

150:10 A. Well, they could not work well if

150:11 -- if they weren't worn and if they were the

150:12 wrong size.

150:13 Q. Okay. And that's true of all

150:14 earplugs, not just the Combat Arms Version 2,

150:15 they could not work well if they weren't worn

150:16 and if they were the wrong size; correct?

150:17 A. Yes. That's correct.

151:13 - 152:17 Battler, Leanne (2020-09-10) 2:35

151:13 We talked about the process of

151:14 instruction on the Combat Arms earplug by

151:15 medically trained personnel. Do you recall

151:16 that?

151:17 A. Yes, sir.

151:18 Q. And am I correct that you did not

151:19 rely on Aearo or 3M to come by the

151:20 installations to provide fitting on the Combat

151:21 Arms Earplug Version 2 to soldiers?

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151:22 A. Correct.

151:23 Q. And am I correct that you did not

151:24 invite Aearo or 3M to come by the installations

151:25 to provide fitting of the Combat Arms Version 2

152:01 to soldiers?

152:02 A. Correct.

152:03 Q. Am I also correct that you did

152:04 not rely on Aearo or 3M to provide any oral

152:05 instructions to soldiers relating to the Combat

152:06 Arms version?

152:07 A. Correct.

152:08 Q. And am I also correct that you

152:09 did not rely on Aearo or 3M to provide any

152:10 written instructions to soldiers on the Combat

152:11 Arms version?

152:12 A. Correct.

152:13 Q. And, in fact, based on your

152:14 investigation, you never provided any --

152:15 anything in writing from Aearo or 3M on the

152:16 Combat Arms Version 2 to soldiers; correct?

152:17 A. The Version 2, correct.

153:10 - 153:19 Battler, Leanne (2020-09-10) 1:36

153:10 Q. Okay. And when you say earlier Re: [153:10 to 153:19] Re: [153:10 to 153:19]

153:11 in your career there were not enough Pltf Obj 402/403; conjecture; SUSTAINED

153:12 audiologists to accomplish the mission 701/702; 611 leading;

153:13 successfully of hearing loss prevention, what vague/confusing; nonresponsive

153:14 years are you referring to?

153:15 A. During GWOT, during Operation

153:16 Iraqi Freedom, Operation Enduring Freedom,

153:17 Afghanistan. It's questionable if -- We're

153:18 doing better; I'm not sure if we're there yet

153:19 but, yeah.

154:04 - 155:03 Battler, Leanne (2020-09-10) 2:49

154:04 Q. What years are you referring to Re: [154:04 to 155:03] Re: [154:04 to 155:03]

154:05 there during GWOT, Operation Iraqi Freedom, and Pltf Obj 402/403; 602/701/702; SUSTAINED

154:06 Operation Enduring Freedom, approximately? 611 leading questions, vague,

154:07 A. 2004 to 2011, '12. asked/answered; 802;

154:08 Q. And you testified that during foundation; speculation

154:09 those years, 2004 to 2011 or '12, there were

154:10 not enough audiologists to accomplish the

154:11 mission successfully of hearing loss

154:12 prevention. Could you explain that testimony?

154:13 A. I believe there were not enough

154:14 Army uniformed 72 Charlie audiologists aligned

154:15 under preventive medicine, which would allow us

154:16 that 50 percent of our time spent outside of

154:17 the clinic, in the motor pools, on the ranges,

154:18 doing the education and the on-the-spot earplug

154:19 fitting and fit checks.

154:20 Q. And you, as an individual,

154:21 Lieutenant Colonel Battler, worked extremely

154:22 hard, but you can only do so much; would you

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154:23 agree with that?

154:24 A. Yes.

154:25 Q. And how does there not being

155:01 enough Army uniformed 72 Charlie audiologists

155:02 aligned under preventative medicine, how does

155:03 that impede hearing protection for soldiers?

155:06 - 155:10 Battler, Leanne (2020-09-10) 0:28

155:06 A. So, again, being aligned under

155:07 Department of Surgery and with productivity

155:08 being measured in terms of RVU generation, it's

155:09 -- it's very difficult to get outside of the

155:10 clinic and do the hands-on work.

156:06 - 157:12 Battler, Leanne (2020-09-10) 2:09

156:06 Q. Okay. And not having enough Re: [156:06 to 157:12] Re: [156:06 to 157:12]

156:07 audiologists from 2004 to 2012, how does that Pltf Obj 611 leading, vague, SUSTAINED as to

156:08 impact the hearing protection mission, based on mischaracterizes evidence; [156:06, 156:21], OVERRULED as

156:09 your personal experience with the CAEv2 and 602/701/702; conjecture; to [156:22, 157:12]

156:10 other plugs? 404/406; speculation; 402/403

156:11 A. Right. So not only were we --

156:12 does that impede our ability to get out there

156:13 in the noise to do the proper instruction, but

156:14 generally, the Department of Surgery budget

156:15 doesn't include funding for hearing protection.

156:16 That falls under the prevention mission, which

156:17 is sometimes -- sometimes under preventive

156:18 medicine, sometimes not. But definitely not --

156:19 Department of Surgery is not concerned with

156:20 providing preformed hearing protection for

156:21 soldiers.

156:22 Q. And proper instruction is key for

156:23 preformed hearing protectors like the Combat

156:24 Arms Version 2 to work effectively in your

156:25 experience; correct?

157:01 A. In my experience, yes, that's

157:02 correct.

157:03 Q. And final question, before we

157:04 take a break, why, based on your experience, is

157:05 that true for preformed hearing protectors like

157:06 the CAEv2?

157:07 A. Because I worked under both

157:08 clinics: I've worked under Department of

157:09 Surgery and I've worked under preventive

157:10 medicine clinic. And the prevention mission is

157:11 -- our productivity is not based on how many

157:12 patients we see.

158:11 - 158:21 Battler, Leanne (2020-09-10) 0:27

158:11 Q. Okay. The -- Is a -- The Combat

158:12 Arms Version 2 is a triple-flanged earplug;

158:13 correct?

158:14 A. Yes.

158:15 Q. And do you insert it the same way

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158:16 that you insert other triple-flanged earplugs,

158:17 you reach over, you pull behind the ear, and

158:18 you stick it in the ear; is that right?

158:19 A. Yes.

158:20 Q. Same way; right?

158:21 A. Yes.

158:22 - 158:24 Battler, Leanne (2020-09-10) 0:08

158:22 Q. And have you ever been assigned

158:23 to any of the basic training bases?

158:24 A. No. Negative.

158:25 - 159:03 Battler, Leanne (2020-09-10) 0:11

158:25 Q. Okay. Are you aware that during

159:01 basic training, the soldiers are taught how to

159:02 insert triple-flange earplugs?

159:03 A. Yes.

160:09 - 160:12 Battler, Leanne (2020-09-10) 0:10

160:09 Q. Okay. And is it a fair statement Re: [160:09 to 160:18] Re: [160:09 to 160:18]

160:10 to say that once you can insert one Def Obj foundation (602); OVERRULED

160:11 triple-flange plug, you can insert any vague (611, 403); 701

160:12 triple-flange plug?

160:14 - 160:14 Battler, Leanne (2020-09-10) 0:02

160:14 Q. It's the same process, isn't it? Re: [160:09 to 160:18] Re: [160:09 to 160:18]

Def Obj foundation (602); OVERRULED

vague (611, 403); 701

160:17 - 160:18 Battler, Leanne (2020-09-10) 0:01

160:17 A. I think it's the same process, Re: [160:09 to 160:18] Re: [160:09 to 160:18]

160:18 yes. Def Obj foundation (602); OVERRULED

vague (611, 403); 701

160:19 - 160:22 Battler, Leanne (2020-09-10) 0:09

160:19 Q. Okay. So if somebody has been

160:20 taught how to insert a triple-flange plug, they

160:21 don't necessarily have to be taught again, do

160:22 they?

161:01 - 161:08 Battler, Leanne (2020-09-10) 0:21

161:01 A. I think a refresher is always --

161:02 and that's why the regulation says we're

161:03 supposed to check it every year, at least

161:04 annually, to make sure they know how to do it.

161:05 Q. I understand. But the troops, if

161:06 they're going through basic training, and have

161:07 received that type of training, then they will

161:08 know how to insert a plug; true?

161:12 - 161:18 Battler, Leanne (2020-09-10) 0:16

161:12 A. I wouldn't say necessarily.

161:13 Depends who taught them, how they taught them.

161:14 I'm --

161:15 Q. Assuming --

161:16 A. I can speak for my -- I can speak

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161:17 for my clinics and my technicians, I can't

161:18 speak for others.

162:01 - 162:05 Battler, Leanne (2020-09-10) 0:10

162:01 Q. Thousands. One of the things you

162:02 said earlier is you've never rolled back the

162:03 opposing flanges to insert a Combat Arms; is

162:04 that a true statement?

162:05 A. Correct.

162:06 - 162:18 Battler, Leanne (2020-09-10) 1:31

162:06 Q. You also said that you have been

162:07 using Combat Arms plugs from 2003 to the

162:08 present, for your own personal use; is that

162:09 correct?

162:10 A. Correct. Yes.

162:11 Q. Which versions have you used over

162:12 the years?

162:13 A. All of them.

162:14 Q. Okay. And when did you start

162:15 using the Version 2 and when did you stop using

162:16 the Version 2?

162:17 A. I started using the Version 2

162:18 when I was a student at Aberdeen.

163:25 - 164:06 Battler, Leanne (2020-09-10) 1:31

163:25 Q. Okay. As far as the number of Re: [163:25 to 164:13] Re: [163:25 to 164:13]

164:01 audiologists that the Army has had over the Pltf Obj 17. Objection SUSTAINED

164:02 years, wasn't going to a one-sized Combat Arms Nonresponsive

164:03 plug a way to address the fact that the -- not

164:04 everybody could be hand-fitted by an

164:05 audiologist? Wasn't that one of the reasons

164:06 why the Army went to a one-size plug?

164:11 - 164:13 Battler, Leanne (2020-09-10) 0:06

164:11 A. I never thought it was a one-size Re: [163:25 to 164:13] Re: [163:25 to 164:13]

164:12 plug. I always thought it was a size medium Pltf Obj 17. Objection SUSTAINED

164:13 plug. Nonresponsive

164:14 - 164:16 Battler, Leanne (2020-09-10) 0:10

164:14 Q. Okay. Were you aware that the

164:15 Combat Arms earplug was supposed to be a

164:16 one-size-fits-most earplug?

164:19 - 164:21 Battler, Leanne (2020-09-10) 0:07

164:19 Q. One size fits most. I guess

164:20 medium would fit most, yes.

164:21 A. I mean, that's fair.

164:22 - 165:12 Battler, Leanne (2020-09-10) 1:45

164:22 Q. Are you aware that the Combat Re: [164:22 to 165:12] Re: [164:22 to 165:12]

164:23 Arms earplug was supposed to be a Def Obj foundation (602) OVERRULED

164:24 one-size-fits-most plug?

164:25 A. No.

The Court agrees with 

the removal of 162:06-

18 per PTC ruling.

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165:01 Q. Okay.

165:02 A. I understood it was a size medium

165:03 earplug, and most people are size medium. So,

165:04 yes, I could infer one from the other, but it

165:05 was never presented as a one-size-fits-most.

165:06 Q. Okay. If you can pull up the

165:07 wallet card, whoever has got -- I can't

165:08 remember which exhibit it was, the wallet that

165:09 Mr. Nomellini used earlier.

165:10 MR. MONSOUR: Do you know which

165:11 one that is, Terry.

165:12 Here it is. Thank you, Corey.

165:13 - 166:03 Battler, Leanne (2020-09-10) 1:36

165:13 Q. If you will look under ordering,

165:14 it mentions the double-ended earplug, which, as

165:15 you know, that has to be the Combat Arms

165:16 Version 2, because that's the only double-ended

165:17 plug that's ever been around; correct?

165:18 A. Right.

165:19 Q. Do you notice where it says:

165:20 Which fits most of the adult population. Do

165:21 you see that?

165:22 A. Yes.

165:23 Q. Do you know what percentage of

165:24 the adult population it fits?

165:25 A. I would say probably

166:01 seventy-five --

166:02 Q. Okay.

166:03 A. -- maybe eighty.

166:10 - 167:17 Battler, Leanne (2020-09-10) 2:32

166:10 Q. And let me ask you this, Re: [167:03 to 167:17] Re: [167:03 to 167:17]

166:11 Lieutenant Colonel: The -- you mentioned that Def Obj misleading (611, 403) OVERRULED

166:12 when you went to -- I think you said when you

166:13 got to Iraq, when you arrived, as part of the

166:14 Rapid Fielding Initiative, somebody just handed

166:15 you two plugs; is that correct?

166:16 A. That was before I was in Iraq.

166:17 That was at the CRC, at Fort Benning. The

166:18 predeployment.

166:19 Q. What year would that have been?

166:20 A. 2008.

166:21 Q. And you saw that -- those just

166:22 being handed out without any instructions, that

166:23 was you and did you say there were five of you

166:24 in total?

166:25 A. Right. So it was like a round

167:01 robin, we all kind of circulated through the

167:02 different stations in our team.

167:03 Q. Okay. But there were just five

167:04 of you that you saw receive them this way;

167:05 true?

167:06 A. Yes.

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167:07 Q. Okay. And you already knew how

167:08 to insert them properly; correct?

167:09 A. Yes.

167:10 Q. And then you then showed the

167:11 other people that were in your group how to

167:12 insert them properly; correct?

167:13 A. Yes.

167:14 Q. Okay. And at that point in time,

167:15 in 2008, the Army had been using this earplug,

167:16 is it approximately four years?

167:17 A. Yes.

167:25 - 168:14 Battler, Leanne (2020-09-10) 1:43

167:25 Q. The only time -- The only time Re: [167:25 to 168:08] Re: [167:25 to 168:08]

168:01 that you've ever seen them handed out without Def Obj misstates; vague (611, OVERRULED

168:02 instruction, as you described, was the time 403)

168:03 where you were there with that group of five

168:04 people; correct?

168:05 MR. NOMELLINI: Object to form

168:06 and foundation.

168:07 A. That's the only time I was

168:08 physically in the RFI site, yes.

168:09 Q. Okay. And during that time, the

168:10 plugs had been around for four years; correct?

168:11 A. They had been -- Yes.

168:12 Q. And you then instructed your

168:13 group on how to put them in; correct?

168:14 A. Yes.

168:15 - 168:19 Battler, Leanne (2020-09-10) 0:15

168:15 Q. So you can't tell me of any Re: [168:15 to 168:19] Re: [168:15 to 168:19]

168:16 situation where you know somebody has been Def Obj incomplete counter DEFER RULING

168:17 given these and not had instructions at some (106)

168:18 point in time; true?

168:19 A. Negative. Soldiers would tell me

169:08 - 169:16 Battler, Leanne (2020-09-10) 0:29

169:08 Q. Understood. But I'm going -- But Re: [169:08 to 169:16] Re: [169:08 to 169:16]

169:09 based upon your personal knowledge, from what Def Obj vague, leading (611, OVERRULED

169:10 you have actually seen, it's only that little 403)

169:11 group of five, and they quickly received

169:12 instruction from you; right?

169:13 MR. NOMELLINI: Object to the

169:14 form of the question.

169:15 Q. Is that correct?

169:16 A. Correct.

171:01 - 171:24 Battler, Leanne (2020-09-10) 1:00

171:01 One of the things that you were

171:02 talking about before is the Fort Carson study

171:03 that you did. Do you remember talking about

171:04 that, the study that was called Fort Carson:

171:05 An Army Hearing Program Success Story.

171:06 Do you remember that?

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171:07 A. Yes.

171:08 Q. I have a couple of questions

171:09 about that. Was that a -- Was that done

171:10 through an IRB?

171:11 A. It was not a research study, so

171:12 there was no need for IRB.

171:13 Q. Okay. Was it multicenter or just

171:14 your base -- or your fort?

171:15 A. Just Fort Carson.

171:16 Q. Okay. And it was never peer

171:17 reviewed by any formal journal at any journal

171:18 review board; correct?

171:19 A. It was peer reviewed. The AMED

171:20 Journal is a peer-reviewed journal.

171:21 Q. It is a peer-reviewed journal.

171:22 Okay. And that article does not speak for the

171:23 Army, does it?

171:24 A. Correct.

172:19 - 172:23 Battler, Leanne (2020-09-10) 0:18

172:19 I take it that you are -- Are you Re: [172:19 to 172:23] Re: [172:19 to 172:23]

172:20 aware that the Combat Arms Version 2 earplug Def Obj 3M MIL No. 16; 403 OVERRULED

172:21 was discontinued in November of 2015?

172:22 A. I knew it was discontinued. I

172:23 wasn't sure the exact date, but, yes.

173:03 - 173:16 Battler, Leanne (2020-09-10) 1:51

173:03 Q. Okay. With regard to your --

173:04 With regard to your knowledge of the Combat

173:05 Arms Earplug Version 2, you've never done any

173:06 REAT testing on the Version 2; correct?

173:07 A. Correct.

173:08 Q. You've never done any Meyer

173:09 testing on the Version 2; correct?

173:10 A. Correct.

173:11 Q. You've never done any impulse

173:12 testing on the Version 2; correct?

173:13 A. Correct.

173:14 Q. You've never had any access to

173:15 Aearo's REAT data for the version 2; correct?

173:16 A. Correct.

173:18 - 173:20 Battler, Leanne (2020-09-10) 0:05

173:18 We talked about the wallet card earlier. Do

173:19 you remember that?

173:20 A. Yes.

173:21 - 174:08 Battler, Leanne (2020-09-10) 1:03

173:21 Q. When did you start using the

173:22 wallet card?

173:23 A. I guess when -- when it was

173:24 available.

173:25 Q. And I asked a poor question. Let

174:01 me be more specific. What year was it

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174:02 available?

174:03 A. That's a great question. I'm

174:04 trying to think if we had it in Fort Hood.

174:05 Well, we must have had it in Fort Hood because

174:06 -- Yeah. So what year was it on the --

174:07 Whatever year the -- I don't know exactly what

174:08 year it came available.

174:09 - 175:24 Battler, Leanne (2020-09-10) 2:56

174:09 Q. Okay. And how would you use the

174:10 wallet card? When you fit soldiers, would you

174:11 hand them one?

174:12 A. Not usually. I'd say -- After we

174:13 did the fitting, then I would say: Here's some

174:14 cards; if anybody wants to keep a card to kind

174:15 of remember if you forget what we talked about,

174:16 you can use this as a refresher.

174:17 Q. Okay. So it was -- It was

174:18 optional, additional instruction that were

174:19 available to the soldiers?

174:20 A. When we had them available, yes.

174:21 Q. Okay. And did you, like, pass

174:22 them out or did you just kind of have them in a

174:23 bowl on a table somewhere and say: If anybody

174:24 wants one, just pick one up?

174:25 A. Never a bowl. It was always, if

175:01 they were -- Yeah. If we had them, I'd have

175:02 them in my hand and say, who wants one of

175:03 these? Anybody want one of these?

175:04 Q. Okay. You also said you used a

175:05 PowerPoint, I guess, to explain how to use the

175:06 Combat Arms Version 2s?

175:07 A. Yes.

175:08 Q. And what did that PowerPoint have

175:09 in it?

175:10 A. So, again, I had like the --

175:11 Well, kind of -- the picture of the wallet

175:12 card, and then I had the picture of Ron Millis

175:13 with his quote. Then we would have a short

175:14 video of a blast, and then another video of a

175:15 truck engine in the motor pool to talk about

175:16 the difference between impulse noise and steady

175:17 state noise; and then we'd talk about which end

175:18 to put in in each scenario. And then I would

175:19 do it up there on the stage, I'd say pull up

175:20 and back. And my techs would usually be in the

175:21 audience, you know, running around giving

175:22 everybody size medium, looking in their ears as

175:23 they came in for the briefing. And then we try

175:24 to do an en masse, you know, fitting like that.

175:25 - 176:07 Battler, Leanne (2020-09-10) 0:23

175:25 Q. And when you would be giving

176:01 these PowerPoint presentations to the men and

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176:02 women of the United States Army, how big of a

176:03 group would you be giving that to? Would it be

176:04 ten people, a hundred people, more than that?

176:05 A. One time, there was a large group

176:06 of about two hundred. But most of the time

176:07 they were much smaller.

176:08 - 176:11 Battler, Leanne (2020-09-10) 0:10

176:08 Q. Once a soldier was instructed on

176:09 how to insert the Combat Arms, did you find

176:10 that they were able to consistently insert

176:11 them?

176:15 - 176:20 Battler, Leanne (2020-09-10) 0:14

176:15 A. Yeah. Usually. I mean, well,

176:16 that was part of it, is -- is we would, you

176:17 know, instruct them how to do it, and then we

176:18 would do the follow-on tug test to make sure

176:19 that they had achieved the proper seal; and, if

176:20 not, we would reinstruct them.

177:13 - 177:23 Battler, Leanne (2020-09-10) 0:27

177:13 Q. Now, you had mentioned before,

177:14 with regard to the earplugs, when you wore

177:15 them, you could tell if they had a good fit or

177:16 seal; correct?

177:17 A. Yes.

177:18 Q. And I can't remember the phrase

177:19 that you used, but I guess it involved just the

177:20 noise that you would be hearing; is that right?

177:21 A. Right. You'd kind of hear your

177:22 environmental -- just the air, cutting in and

177:23 out.

177:24 - 178:15 Battler, Leanne (2020-09-10) 1:58

177:24 Q. Now, is it more difficult to tell

177:25 if you've got a good seal with the yellow end,

178:01 because that is supposed to allow for a lot of

178:02 those sounds to come through anyway?

178:03 A. No. Because it's different.

178:04 Q. Explain the difference.

178:05 A. You hear all of the environment

178:06 coming -- coming in and out, rather than a

178:07 portion of it.

178:08 Q. So what you're saying is,

178:09 determining whether or not there is a seal in

178:10 the earplugs is the same for the yellow side as

178:11 the green side?

178:12 A. Yes.

178:13 Q. Even though the yellow side has a

178:14 hole in it?

178:15 A. Yes.

178:16 - 181:14 Battler, Leanne (2020-09-10) 3:24

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178:16 Q. Okay. If we could, you did --

178:17 You talked earlier with 3M's counsel, Mr.

178:18 Nomellini, about the survey that you had done

178:19 of some of the soldiers to ask them about their

178:20 usage of the Combat Arms Version 2, do you

178:21 remember that?

178:22 A. In the PDHRA, yes.

178:23 Q. Yes. And I believe -- I've seen

178:24 an email, I can pull it up, you might remember

178:25 this, you were intending to look at twenty-five

179:01 people on a Thursday and then another

179:02 twenty-five on a Friday. That was the

179:03 intention; correct?

179:04 A. I remember -- I don't recall that

179:05 exactly, but I do remember reading that that

179:06 was -- Yes.

179:07 Q. Okay. And you were able to get

179:08 four of them done; correct?

179:09 A. Wasn't it ten?

179:10 Q. I found four.

179:11 A. Oh.

179:12 Q. And I believe you forwarded four

179:13 to -- I guess we can pull up -- Let me go ahead

179:14 and pull up the email that talks about that.

179:15 Give me one second.

179:16 Yeah. This is the one that says

179:17 twenty-five.

179:18 MR. MONSOUR: Okay. If you'll

179:19 pull up LC-006.

179:20 Q. And if you will look, Lieutenant

179:21 Colonel, you will see that this is an email

179:22 that you sent to a man by the name of Brian

179:23 Myers. Do you see that?

179:24 A. Yes.

179:25 Q. And that took place on August 22,

180:01 2005; correct?

180:02 A. Yes.

180:03 Q. And it says questions regarding

180:04 Combat Arms earplugs; correct?

180:05 A. Yes.

180:06 Q. And Brian Myers works with Aearo,

180:07 which is now 3M; correct?

180:08 A. I honestly don't remember who

180:09 Brian Myers is.

180:10 Q. Look down a little lower on the

180:11 email, you will see Brian Myers' email address

180:12 down below, and it notes that he has an Aearo

180:13 email address.

180:14 Do you see that?

180:15 A. Yes.

180:16 Q. Okay. Does that clear that up?

180:17 A. Yes.

180:18 Q. Okay. If you'll look at the

180:19 email that you sent to him, you say: Brian --

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180:20 MR. MONSOUR: Go up a little bit.

180:21 Q. Brian, I am attaching responses

180:22 from four soldiers. I only had the opportunity

180:23 to interview these four. I thought I was going

180:24 to see more soldiers, but that's the way it

180:25 worked out.

181:01 Did I read that reasonably

181:02 correctly?

181:03 A. Yes.

181:04 Q. And then it says: And one of

181:05 them, number 3 I think, had to leave before we

181:06 finished all the questions. Even with this

181:07 small number, I think they generated some

181:08 really good ideas, mainly, that they seem to

181:09 want the earplugs integrated with either their

181:10 helmet or sunglasses and also that they need

181:11 them to be available in a greater variety of

181:12 sizes. I hope this helps. Captain Cleveland.

181:13 Did I read that right?

181:14 A. Yes.

181:15 - 181:22 Battler, Leanne (2020-09-10) 0:13

181:15 Q. I think we've made this clear,

181:16 your name is Leanne Battler, but your name used

181:17 to be Leanne Cleveland; correct?

181:18 A. Yes.

181:19 Q. So any time we see anything from

181:20 Leanne Cleveland, regardless of rank, that's

181:21 you?

181:22 A. That's me.

184:21 - 188:05 Battler, Leanne (2020-09-10) 4:05

184:21 (Whereupon, Plaintiff's

184:22 Exhibit 16 was marked for

184:23 identification purposes.)

184:24 Q. Okay. Let's go to Exhibit Number

184:25 16, which is LC-009. And this person says,

185:01 number four: I used them during the convoy

185:02 live fire exercise on the road trip from

185:03 Kuwait, but then I lost them.

185:04 Correct?

185:05 A. Yes.

185:06 Q. And then number five says: How

185:07 often and how long did you typically wear it?

185:08 And the response is: For one week, then I lost

185:09 them and used the triple-flange and the foam

185:10 for the rest of the year.

185:11 Did I read that correctly?

185:12 A. Yes.

185:13 Q. And then if you go down to number

185:14 seven it says: They were difficult to store.

185:15 They were too big for the case. A lot of the

185:16 people kept them on their Kevlar, but they got

185:17 dusty and dirty and didn't want to wear them

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185:18 when they got like that. I lost mine with my

185:19 brown scarf when we switched over to another

185:20 vehicle.

185:21 Do you see that?

185:22 A. Yes.

185:23 Q. He does note that there was a

185:24 complaint that they were too big for the case.

185:25 Do you see that?

186:01 A. Yeah.

186:02 (Whereupon, Plaintiff's

186:03 Exhibit 17 was marked for

186:04 identification purposes.)

186:05 Q. Let's go to Exhibit Number 17,

186:06 which is LC-010. This is the third person.

186:07 And on number two it says: Do you believe your

186:08 hearing has been affected by the loud noises

186:09 you heard? Why or why not? And the answer is:

186:10 Yes. My hearing is worse and the ringing is

186:11 worse. My tinnitus used to be intermittent,

186:12 now it's all the time.

186:13 Did I read that correctly?

186:14 A. Yes.

186:15 Q. Then if we look at number four,

186:16 it says: When did you wear the CAE? And the

186:17 person answers: Approximately one week, but

186:18 they were too irritating. Too deep inside the

186:19 ear canal. And then it's explained that the

186:20 soldier switched to using an oral

186:21 triple-flanged earplug; correct?

186:22 A. Yes.

186:23 Q. If a plug is too irritating and

186:24 fits too deep inside the ear canal, that can be

186:25 a problem for that plug's fit; correct?

187:01 MR. NOMELLINI: Object to the

187:02 form.

187:03 Q. Is that correct?

187:04 A. So you've got too irritating, too

187:05 deep, does that mean they were too big or that

187:06 he didn't like the consistency of the silicone?

187:07 Q. I don't know. I wasn't there to

187:08 ask him the question, but you were. Do you

187:09 remember?

187:10 A. No.

187:11 Q. If we look at number seven, it

187:12 says: We are in the process of redesigning the

187:13 CAE. If length of the actual earplug was an

187:14 issue, how long can the CAE be and not

187:15 interfere with other tasks which you must

187:16 perform, like talking on the radio, et cetera?

187:17 And it says here: The hand mic used in radio

187:18 control depresses the CAE further into the ear

187:19 canal making it way too irritating. Make the

187:20 length flush with the opening of the ear canal.

187:21 Did I read that right?

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187:22 A. Yes.

187:23 Q. And then if we go to eleven, it

187:24 says: Anything else that you would like to say

187:25 about what did or did not work with the CAE or

188:01 comments on how it might be improved? And the

188:02 person responds: Length both too far in the

188:03 canal and too far out of the canal.

188:04 Did I read that correctly?

188:05 A. Yes.

188:12 - 190:04 Battler, Leanne (2020-09-10) 2:55

188:12 (Whereupon, Plaintiff's

188:13 Exhibit 18 was marked for

188:14 identification purposes.)

188:15 Q. Okay. So that's two out of three

188:16 that didn't like it. And let's go to Exhibit

188:17 Number 18, and that's LC-011.

188:18 And this one, I believe, is one

188:19 that Mr. Nomellini went through you -- with you

188:20 through. And he explains that he wore his

188:21 earplugs all the time under number two. If I

188:22 hadn't worn hearing protective devices, I would

188:23 have had serious problems or else have been

188:24 deaf.

188:25 Correct?

189:01 A. Yes.

189:02 Q. Then at the end, number eleven,

189:03 he says: No, I wouldn't change anything at

189:04 all.

189:05 True? Is that right?

189:06 A. Yes.

189:07 Q. So we've got one person that

189:08 likes them, one person that says they're too

189:09 irritating, one person that lost them after a

189:10 week, and another person that thought they were

189:11 too big; correct?

189:12 A. Say that again. One --

189:13 Q. Sure. One thought they were too

189:14 big and they hurt and that they didn't work

189:15 well, that's the first person. Correct?

189:16 A. Okay.

189:17 Q. One used them for a week and then

189:18 lost them. That's the second person; correct?

189:19 A. Uh-huh.

189:20 Q. The third person found that they

189:21 were too irritating and had to switch to a

189:22 different triple-flange plug after a week and

189:23 thought they went too far in the canal;

189:24 correct?

189:25 A. Yes.

190:01 Q. And then the fourth person liked

190:02 the plug and said: I wouldn't change anything

190:03 at all; correct?

190:04 A. Yes.

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190:10 - 190:20 Battler, Leanne (2020-09-10) 1:38

190:10 (Whereupon, Plaintiff's

190:11 Exhibit 19 was marked for

190:12 identification purposes.)

190:13 Q. Now, if we could pull up

190:14 Plaintiff's Exhibit -- let me see. This should

190:15 be 19. Let's mark it P 1272.2.

190:16 Have you seen this document

190:17 before?

190:18 A. Yes.

190:19 Q. Okay. What is it?

190:20 A. I made this.

191:13 - 192:10 Battler, Leanne (2020-09-10) 1:23

191:13 Q. Okay. Now, one of the things, if

191:14 we look on here, on the right-hand side of the

191:15 document, underneath number three, in the third

191:16 column, it says, and you had talked about this

191:17 earlier, it says: All earplugs work loose and

191:18 must be reseated after a period of time.

191:19 Do you see that?

191:20 A. Yes.

191:21 Q. Do you agree with that?

191:22 A. Yes.

191:23 Q. How long, typically, does it take

191:24 for an earplug to work loose as is being

191:25 described here?

192:01 A. Well, that depends if they're

192:02 chewing gum or -- it depends on the individual.

192:03 Q. Okay. How often -- You say plugs

192:04 must be reseated. Can there be a plug that has

192:05 to be reseated -- that needs to be reseated so

192:06 often that it's not very helpful, not very

192:07 useful?

192:08 A. I guess if it was fitting barely,

192:09 then, yeah. If it was less than a perfect fit

192:10 then it would need to be reseated more often.

192:20 - 192:23 Battler, Leanne (2020-09-10) 0:12

192:20 Q. Fair enough. So you want a plug

192:21 that stays in longer, rather than shorter;

192:22 fair?

192:23 A. Correct.

193:07 - 193:19 Battler, Leanne (2020-09-10) 1:55

193:07 Q. And what is that a picture of?

193:08 A. So with the old BDU, the battle

193:09 dress uniform, we used to have a pocket on the

193:10 right front breast, and the part of the uniform

193:11 was to wear the earplug carrying case with your

193:12 unit crest attached to the button on that

193:13 uniform. So that was the Darnell Army

193:14 Community Hospital crest, my earplug case, and

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193:15 those earplugs are the Elvex Quattro, which I

193:16 found were softer of silicone than the orange

193:17 triple-flanged, and which were -- which

193:18 provided a similar fit to the orange

193:19 triple-flange.

193:20 - 193:23 Battler, Leanne (2020-09-10) 0:10

193:20 Q. Okay. You insert triple-flange

193:21 plugs basically the same way you do quad-flange

193:22 plugs?

193:23 A. Yes.

193:24 - 195:13 Battler, Leanne (2020-09-10) 2:57

193:24 Q. Okay. I note there it says: Re: [195:07 to 195:13] Re: [195:07 to 195:13]

193:25 Every soldier who in-processes through Fort Def Obj foundation (602); OVERRULED

194:01 Hood Hearing Conservation Clinic is fitted with vague, leading (611, 403)

194:02 a pair of preformed earplugs and issued a

194:03 carrying case.

194:04 Do you see that?

194:05 A. Yes.

194:06 Q. Now, what does in-process mean?

194:07 A. So when you -- When you arrive at

194:08 your new duty station, when you PCS, permanent

194:09 change of station. So when you're a brand-new

194:10 soldier, you've got your orders that say you

194:11 will report to Fort Hood, you in-process, and

194:12 that's when you go through all of your medical

194:13 checks, and you are assigned your new unit and

194:14 leadership, your housing, you get your kids

194:15 enrolled in school. But the medical

194:16 in-processing at Fort Hood was done through the

194:17 Soldier Readiness Center.

194:18 Q. Are a lot of soldiers processed

194:19 through Fort Hood?

194:20 A. Yes.

194:21 Q. It's a pretty big Army fort,

194:22 isn't it?

194:23 A. Huge.

194:24 Q. Huge. So every soldier that

194:25 shows up at Fort Hood goes through a fitting

195:01 process with these types of plugs; correct?

195:02 A. Yes.

195:03 Q. And those are put in basically

195:04 the same way as a Combat Arms Version 2 plug;

195:05 correct?

195:06 A. Yes.

195:07 Q. So if I can put in one of these,

195:08 I can put in a Version 2; correct?

195:09 MR. NOMELLINI: Object to form

195:10 and foundation.

195:11 Q. Is that correct?

195:12 A. You should. It's the same

195:13 process, yeah.

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196:02 - 196:19 Battler, Leanne (2020-09-10) 1:15

196:02 (Whereupon, Plaintiff's

196:03 Exhibit 20 was marked for

196:04 identification purposes.)

196:05 Q. Okay. Now, if we could,

196:06 Lieutenant Colonel, let's pull up a document

196:07 LC-003. And if we will look at the top of

196:08 LC-003, and I'll mark that as Exhibit -- I'm

196:09 sorry, the document that I previously had up on

196:10 the screen, let's mark that one that had the

196:11 photos on it as Exhibit Number 19. And I will

196:12 mark this exhibit, LC-003, as Exhibit Number

196:13 20.

196:14 If we look at this document,

196:15 Lieutenant Colonel, do you see that it is an

196:16 email that is -- that the top was sent from a

196:17 Captain William Porter, to Brian Myers and you,

196:18 in August of 2005?

196:19 A. Yes.

197:25 - 201:01 Battler, Leanne (2020-09-10) 3:27

197:25 Q. And then it appears that if you Re: [199:10 to 199:17] Re: [199:10 to 199:17]

198:01 look in the email immediately above that, they Def Obj foundation (602); 611, SUSTAINED AS TO

198:02 are talking about getting some of the 403; leading COMMENTS RECEIVED

198:03 audiologists that have talked to some people to

198:04 get the information. Re: [200:20 to 201:01] Re: [200:20 to 201:01]

198:05 Do you see that? Def Obj foundation (602); SUSTAINED AS TO

198:06 A. Yes. leading, vague (611, 403) COMMENTS RECEIVED

198:07 Q. And then if we go up a couple of

198:08 emails before that, there's one from a

198:09 Lieutenant Colonel Vickie Tuten. Did I

198:10 pronounce that right?

198:11 A. Yes, you did.

198:12 Q. And it is from Lieutenant Colonel

198:13 Tuten to a Roberta Nang and a William --

198:14 Captain William Porter, and you are cc'd on it;

198:15 correct?

198:16 A. Yes.

198:17 Q. And if we look at the end of the

198:18 first paragraph, Lieutenant Colonel Tuten

198:19 writes: I know I've personally had feedback

198:20 about fit/comfort issues.

198:21 Do you see that?

198:22 A. Yes.

198:23 Q. Now, you also had feedback on

198:24 fit/comfort issues; correct?

198:25 A. Yes.

199:01 Q. And then if you look immediately

199:02 above, you see there is an email from Captain

199:03 William Porter, and he lists three criticisms

199:04 of the system.

199:05 Do you see that?

199:06 A. Yes.

199:07 Q. What is the first criticism

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199:08 Captain Porter notes?

199:09 A. Fit and size.

199:10 Q. And, again, you saw fit and size

199:11 problems, Lieutenant Colonel Tuten saw fit

199:12 problems, and now Captain Porter sees the same

199:13 problems; correct?

199:14 MR. NOMELLINI: Object to the

199:15 form of the question.

199:16 A. Right. The fit problem was that

199:17 there was only one size.

199:18 Q. Okay. And then it says here, let

199:19 me read you what Captain Porter says:

199:20 Fit/size. As you are well aware, not every

199:21 external ear canal is the same size, and some

199:22 soldiers could not/did not wear the CAE and

199:23 choose to wear other hearing protection because

199:24 it was more comfortable.

199:25 Do you see that?

200:01 A. Yes.

200:02 Q. Is it a fair statement that if

200:03 you put an earplug in somebody's ear and it's

200:04 too big, that it hurts?

200:05 A. That's fair.

200:06 Q. And if it hurts, that's a problem

200:07 for the user; true?

200:08 A. True.

200:09 Q. If we look down, number three,

200:10 there's an issue with compatibility that

200:11 Captain Porter notes. He writes:

200:12 Compatibility with the standard Army earplug

200:13 case, the CAE will fit into the standard

200:14 plastic earplug case, but not without some

200:15 struggle. If you develop a new version of the

200:16 CAE, the case should be integrated with the

200:17 product.

200:18 Did I read that correctly?

200:19 A. Yes.

200:20 Q. So it appears from Captain Porter

200:21 the product was too big for the carrying case;

200:22 fair?

200:23 MR. NOMELLINI: Object to form

200:24 and foundation.

200:25 Q. Is that fair?

201:01 A. It was wrong, yes.

201:02 - 201:19 Battler, Leanne (2020-09-10) 1:51

201:02 Q. And then if we go back to where

201:03 we kind of started, Lieutenant Colonel, we go

201:04 to the email from Brian Myers on 8/16, to --

201:05 back to the same William Porter, Captain

201:06 Porter, and you have been cc'd on it, and he

201:07 says: First, I want to thank you for the

201:08 feedback. The first two items are high on our

201:09 list for improvements, and I believe you will

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201:10 be much happier with the version currently

201:11 under development.

201:12 We have conducted an additional

201:13 testing to determine if we are able to decrease

201:14 filter and earplug size but retain the

201:15 performance of the product. It appears that we

201:16 can do this, which will go a long way toward

201:17 resolving the fit/comfort issue.

201:18 Do you see that?

201:19 A. Yes.

201:20 - 202:05 Battler, Leanne (2020-09-10) 1:35

201:20 Q. Do you agree that there was a Re: [202:03 to 202:10] Re: [202:03 to 202:10]

201:21 fit/comfort issue with these plugs? Def Obj 702; foundation (602); OVERRULED

201:22 A. Because they were only one size. leading, vague (611, 403)

201:23 Q. Right. But he also mentions that

201:24 there was an issue with decreasing the filter

201:25 size.

202:01 Do you see that?

202:02 A. I do.

202:03 Q. Do you understand that the filter

202:04 was too big, and that was having an issue with

202:05 regard to comfort?

202:08 - 202:10 Battler, Leanne (2020-09-10) 0:14

202:08 A. For people with size small ear Re: [202:03 to 202:10] Re: [202:03 to 202:10]

202:09 canals, it would have been too -- the -- the Def Obj 702; foundation (602); OVERRULED

202:10 earplug would have been too big. leading, vague (611, 403)

202:11 - 202:14 Battler, Leanne (2020-09-10) 0:13

202:11 Q. Well, here's my -- What

202:12 percentage of the Army's population has ear

202:13 canals that are too small?

202:14 A. Not that many.

202:15 - 203:04 Battler, Leanne (2020-09-10) 1:43

202:15 Q. And, yet, we noted on your

202:16 previous interview of those four people, two of

202:17 them didn't like the fit; true?

202:18 MR. NOMELLINI: Object to the

202:19 form of the question.

202:20 Q. You can answer.

202:21 A. Go back again. So the -- Was it

202:22 that they didn't like the softness of the --

202:23 I'm not sure how you're determining the word

202:24 fit, how you're defining the word fit.

202:25 I'm not sure how you're defining

203:01 the word fit.

203:02 Q. Okay. They thought they were

203:03 uncomfortable, true, two of the four?

203:04 A. Correct.

203:05 - 203:09 Battler, Leanne (2020-09-10) 0:14

203:05 Q. And if you're saying it should

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203:06 only be for the smallest ear canals, that's not

203:07 very many people, but we still have a

203:08 significant number that are reporting it's not

203:09 very comfortable.

203:15 - 203:19 Battler, Leanne (2020-09-10) 0:24

203:15 A. Right. I guess you'd -- you'd

203:16 need to be more precise about what -- how they

203:17 were defining comfort. Was it because of -- I

203:18 know that the softness of the silicone was an

203:19 issue.

203:20 - 203:23 Battler, Leanne (2020-09-10) 0:08

203:20 Q. One of them said it was too

203:21 irritating because it went deep inside the ear

203:22 canal; correct?

203:23 A. Uh-huh.

204:11 - 204:13 Battler, Leanne (2020-09-10) 0:06

204:11 Q. Okay. But on one of them it does

204:12 appear to be a diameter issue, because it

204:13 hurts; true?

204:16 - 204:17 Battler, Leanne (2020-09-10) 0:09

204:16 A. Not necessarily. To me, it could

204:17 have been the silicone softness.

207:02 - 207:25 Battler, Leanne (2020-09-10) 1:02

207:02 Q. So let's talk about a few of Re: [207:09 to 207:25] Re: [207:09 to 207:25]

207:03 these things. We had talked about this before Def Obj leading (611, 403) OVERRULED

207:04 but can you again state for us, why is it

207:05 important to have a plug that you don't have to

207:06 constantly reinsert?

207:07 A. Because you need two hands to

207:08 operate your radio or fire your weapon.

207:09 Q. If your earplugs are loosening

207:10 and you have to constantly free one of your

207:11 hands to stick them back in -- or actually use

207:12 both hands, because you've got to pull the

207:13 pinna back and stick it in, that can be a

207:14 problem to a soldier who is busy looking for

207:15 bad guys that are trying to kill him; true?

207:16 A. True.

207:17 Q. And that's one of the things that

207:18 you mentioned earlier, is we want our soldiers

207:19 to be lethal. As mean as that sounds, we want

207:20 them lethal; right?

207:21 A. Yes.

207:22 Q. And if they're fidgeting with

207:23 their earplugs, they're not very lethal, are

207:24 they?

207:25 A. Correct.

210:05 - 210:14 Battler, Leanne (2020-09-10) 1:36

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210:05 Q. And the paragraph that says -- on Re: [210:05 to 210:14] Re: [210:05 to 210:14]

210:06 the left-hand size that says: Designed to meet Def Obj relevance (401, 402); OVERRULED

210:07 the unique demands of the Armed Forces. On 403

210:08 this one, it says: The level-dependent

210:09 technology used in the earplug, and the earplug

210:10 itself, has been tested on human subjects and

210:11 found to be protective at 190 dBP for at least

210:12 one hundred exposures.

210:13 Do you see that?

210:14 A. Yes.

211:02 - 211:08 Battler, Leanne (2020-09-10) 0:19

211:02 Q. Okay. But doesn't that imply Re: [211:02 to 211:08] Re: [211:02 to 211:08]

211:03 some sort of a quality for an earplug, if it Def Obj 702; foundation (602); OVERRULED

211:04 can be protective at a hundred exposures for relevance (401, 402); 403

211:05 190 dBP?

211:06 MR. NOMELLINI: Object to form.

211:07 A. Yes. That's -- that's a lot --

211:08 lot of noise.

211:19 - 211:25 Battler, Leanne (2020-09-10) 0:25

211:19 Q. Then if we look down one -- under Re: [211:19 to 211:25] Re: [211:19 to 211:25]

211:20 the dual-ended Combat Arms earplugs, there's Def Obj relevance (401, 402); OVERRULED

211:21 several bullets there. And it notes: 403; foundation (602)

211:22 Premolded triple-flange design fits most ear

211:23 canals.

211:24 Do you see that?

211:25 A. Yes.

212:07 - 212:19 Battler, Leanne (2020-09-10) 1:48

212:07 Q. It says: The level-dependent Re: [212:07 to 212:19] Re: [212:07 to 212:19]

212:08 technology used in the earplug and the earplug Def Obj relevance (401, 402); OVERRULED

212:09 itself has been tested on human subjects and 403; foundation (602)

212:10 found to be protective at 190 dBP for at least

212:11 a hundred exposures.

212:12 Are you aware that that's a false

212:13 statement?

212:14 A. It appears -- Like I said, that's

212:15 a lot of noise. It's surprising to me.

212:16 If -- It -- It sounds -- It

212:17 sounds like it could -- I don't know who could

212:18 survive a hundred exposures of 190 decibels of

212:19 peak sound pressure level.

212:20 - 213:01 Battler, Leanne (2020-09-10) 0:24

212:20 Q. Does it concern you that 3M's Re: [212:20 to 212:20] Re: [212:20 to 212:20]

212:21 marketing says this specific earplug, the Def Obj incomplete counter SUSTAINED

212:22 Combat Arms Version 2, has been tested on human (106); foundation (602)

212:23 subjects and found to be protective at a 190

212:24 dBP for at least a hundred exposures, and that

212:25 that is a hundred percent false statement.

213:01 Does that concern you?

213:07 - 213:15 Battler, Leanne (2020-09-10) 1:35

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213:07 Q. Have you had -- Have you ever

213:08 dealt with hearing protectors, earplugs, in the

213:09 military where the vendor has made false

213:10 statements about the capabilities of the

213:11 product?

213:12 MR. NOMELLINI: Beyond the scope

213:13 of the Touhy. Object to the form.

213:14 A. My opinion that they're false

213:15 or -- or --

213:16 - 213:19 Battler, Leanne (2020-09-10) 0:14

213:16 Q. No. Has -- Have you ever had a

213:17 situation where a vendor has made false

213:18 statements about the capabilities of their

213:19 earplugs?

213:22 - 214:03 Battler, Leanne (2020-09-10) 0:28

213:22 Q. You can answer. Re: [213:24 to 215:07] Re: [213:24 to 215:07]

213:23 A. I would say yes. Pltf Obj 01. 402, 15. 403 SUSTAINED/DEFER

213:24 Q. You have had situations where (Prejudicial vs Probative), RULING

213:25 they've made false claims? 11. Foundation

214:01 A. Yes.

214:02 Q. And who was that?

214:03 A. That was --

214:10 - 214:25 Battler, Leanne (2020-09-10) 1:26

214:10 A. Okay. The -- My personal Re: [213:24 to 215:07] Re: [213:24 to 215:07]

214:11 experience is that the SureFire EP2 earplug was Pltf Obj 01. 402, 15. 403 SUSTAINED/DEFER

214:12 -- was -- soldiers believed it was going to (Prejudicial vs Probative), RULING

214:13 offer a similar amount of protection as the 11. Foundation

214:14 Combat Arms ISL filter, and my experience was

214:15 it did not.

214:16 Q. How was that a false claim?

214:17 A. So that's why I hesitated with

214:18 answering that, because it's not like they

214:19 wrote in the pamphlet EP2 is equivalent to.

214:20 But somehow soldiers were coming into my clinic

214:21 with these SureFire earplugs that Sonic

214:22 Defender added into their flashlight orders,

214:23 and because they were a much softer silicone,

214:24 the soldiers were under the impression that it

214:25 was a fabulous hearing protection.

224:24 - 226:12 Battler, Leanne (2020-09-10) 2:58

224:24 MR. MONSOUR: If you could,

224:25 Corey, if you'll pull up Exhibit Number 19.

225:01 Q. We went through this before. I

225:02 want to ask you a question about it, Lieutenant

225:03 Colonel.

225:04 If you look at that second

225:05 picture on the left-hand column, you see

225:06 there's a soldier, and his ear has the green

225:07 end sticking out.

225:08 Do you see it?

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225:09 A. Yes.

225:10 Q. Now, did you take this picture?

225:11 A. I did. That's my husband's ear

225:12 -- ex-husband's ear.

225:13 Q. That's your ex-husband, okay.

225:14 Okay. So you know this soldier; correct?

225:15 A. Yes.

225:16 Q. And what size ear canal did he

225:17 have?

225:18 A. Medium.

225:19 Q. Medium, okay.

225:20 And do you see how the plug is

225:21 fit in this situation?

225:22 A. Yes.

225:23 Q. Do you see how the opposing green

225:24 flange appears to be kind of pushed up against

225:25 his tragus?

226:01 A. Yes.

226:02 Q. Do you believe that this picture

226:03 shows a good fit?

226:04 A. Yes.

226:05 Q. Does it appear to you that the

226:06 outside flange in this picture is butting up

226:07 against -- is flush against his tragus?

226:08 A. It's flush, yes.

226:09 Q. If that flange had a -- had

226:10 enough tension on it to where it was pushing

226:11 against the tragus and loosening the plug,

226:12 would that be a problem?

226:15 - 226:22 Battler, Leanne (2020-09-10) 0:24

226:15 A. Say that one more time. Pushing

226:16 against the --

226:17 Q. Sure. If that flange -- As it

226:18 was inserted, if that flange got tension on it

226:19 because of the insertion, and as the flange

226:20 kind of reverted to form, it pushed the earplug

226:21 kind of out of the ear canal, would that be a

226:22 problem for this plug?

226:25 - 227:05 Battler, Leanne (2020-09-10) 0:14

226:25 A. No. Because the yellow -- The

227:01 yellow part was seated properly.

227:02 Q. But what if that green flange was

227:03 forcing the entire earplug to kind of pull out

227:04 of the ear, would that be a problem with the

227:05 plug?

227:12 - 227:17 Battler, Leanne (2020-09-10) 0:21

227:12 A. I mean -- Yeah. Does it -- I

227:13 don't know how it would -- how it would exert

227:14 force against the tragus.

227:15 Q. If such force against the tragus

227:16 existed, though, and the plug did loosen, that

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227:17 would be a problem with this plug; true?

227:20 - 228:05 Battler, Leanne (2020-09-10) 1:43

227:20 A. It grew arms and pushed itself

227:21 out?

227:22 If the yellow part is seated

227:23 correctly, so it -- it -- the -- the -- I don't

227:24 see -- I do not -- I cannot comprehend how the

227:25 green portion would exert any force on the part

228:01 that was inserted in the canal.

228:02 Q. Okay. But I guess here's my

228:03 question: If a plug -- If the design of a plug

228:04 caused it to loosen itself, that's a problem

228:05 with the plug; true?

228:08 - 228:14 Battler, Leanne (2020-09-10) 0:19

228:08 A. Right. It's hypothetical. It's

228:09 not a realistic question.

228:10 Q. I'm asking about this plug that

228:11 you used. I'm not talking about a hypothetical

228:12 plug, I'm talking about a CAEv2. If the design

228:13 of the plug caused the plug itself to loosen,

228:14 that's a problem with the plug; right?

228:21 - 230:12 Battler, Leanne (2020-09-10) 3:06

228:21 A. Yeah, it's hypothetical. It's

228:22 hypothetical.

228:23 The yellow portion of this

228:24 earplug was seated perfectly. This was a

228:25 perfect size medium earplug. The green -- The

229:01 fact that the third flange is touching his

229:02 tragus had no impact on how the yellow part

229:03 remained seated.

229:04 Q. When you are taking pictures of

229:05 plugs like this, and examining them, did you

229:06 seat the plug and then take the picture and

229:07 then move on and do something else? Or did you

229:08 seat the plug and come back an hour later and

229:09 check it again?

229:10 A. My husband put the earplug in; I

229:11 did the tug test; and then he used it for

229:12 several missions, four deployments, and came

229:13 back with excellent hearing and no tinnitus.

229:14 Q. Okay. Do you know any soldiers

229:15 that have come back from serving our country

229:16 that used the Combat Arms earplug and do have

229:17 either hearing loss or tinnitus?

229:18 A. No.

229:19 Q. You don't know one soldier that

229:20 used these plugs that has either hearing loss

229:21 or tinnitus?

229:22 A. I don't know -- Of the soldiers

229:23 who came back with hearing loss and/or

229:24 tinnitus, I am not sure how consistently they

The Court agrees with 

removal of 229:04-

230:02 per PTC ruling.

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229:25 used the earplugs. I am -- I am a hundred

230:01 percent certain that my ex-husband used them

230:02 with -- used them all the time.

230:03 Q. Okay. And he put them in

230:04 himself; correct?

230:05 A. Yes.

230:06 Q. Did he put them in as you trained

230:07 him to do?

230:08 A. Yes.

230:09 Q. And he does not have the flanges

230:10 folded back, the opposing flanges folded back;

230:11 true?

230:12 A. Correct.

230:20 - 230:23 Battler, Leanne (2020-09-10) 0:16

230:20 MR. MONSOUR: Okay. If you can Re: [230:20 to 230:33] SUSTAINED

230:21 pull up LC-026. We'll call this Exhibit 24. Pltf Obj GAO exhibit, excluded

230:22 Are we on Exhibit 24, Madam Court per court order

230:23 Reporter?

231:02 - 231:19 Battler, Leanne (2020-09-10) 1:54

231:02 Q. Okay. Let's pull this up. Re: [231:02 to 231:19] SUSTAINED

231:03 This is from the GAO. Is that Pltf Obj GAO exhibit, excluded

231:04 the General Accounting Office, or Government per court order

231:05 Accountability Office? Do you see that?

231:06 A. Yes. GAO.

231:07 Q. It says: Report to congressional

231:08 committees, hearing loss prevention, from

231:09 January 2011.

231:10 Do you see that?

231:11 A. Yes.

231:12 Q. Have you ever seen this before?

231:13 A. Yes.

231:14 Q. In what context did you see it?

231:15 A. The GAO committee came to Fort

231:16 Carson to learn about my program.

231:17 Q. Okay. If you'll -- If we can go

231:18 to page twenty-five, and look at the footnote

231:19 at the bottom of the page.

231:22 - 233:24 Battler, Leanne (2020-09-10) 3:34

231:22 Q. Have you ever seen this footnote Re: [233:22 to 234:11] Re: [233:22 to 234:11]

231:23 before? Pltf Obj 04. 702, 11. SUSTAINED/SUSTAINED

231:24 A. I saw it two days ago for the Foundation, 12. Hearsay DOC EXCLUDED

231:25 first time.

232:01 Q. Okay. So it came out in 2011,

232:02 and you just saw it for the first time two days

232:03 ago?

232:04 A. I never read the footnote before.

232:05 Q. Okay. And how did you come to

232:06 see this two days ago?

232:07 A. Major Wald told me to read it.

232:08 Q. Okay. Well, let's go through

232:09 what it says.

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232:10 A. Uh-huh.

232:11 Q. Footnote 27, and this is -- This

232:12 is involving the study that you were talking

232:13 about earlier in your deposition; true?

232:14 A. Yes.

232:15 Q. And Mr. Nomellini asked you about

232:16 it, and then I asked you a few questions about

232:17 it; right?

232:18 A. Yes.

232:19 Q. And it says: Cleveland, Leanne,

232:20 Captain, quote, Fort Carson: An Army Hearing

232:21 Program Success Story. Army Department Medical

232:22 Journal, April-June 2009.

232:23 This study describes the effect

232:24 of the addition of a second audiologist at the

232:25 Army base in Fort Carson, Colorado. While the

233:01 study proves that the addition of a second

233:02 audiologist would increase the number of

233:03 service members receiving testing and training,

233:04 it does not provide sufficient evidence to

233:05 support that an additional audiologist led to

233:06 reduced hearing loss.

233:07 For example, the study interprets

233:08 shifts in the hearing loss and readiness rates

233:09 as being directly attributable to the

233:10 availability of a second audiologist, but the

233:11 study does not consider other factors that

233:12 could have also have had effects, such as

233:13 overseas deployments, changes in equipment, and

233:14 changes in training.

233:15 Did I read that reasonably

233:16 carefully -- or accurately?

233:17 A. Yes.

233:18 Q. Do you believe that the points

233:19 that are made in this footnote are valid

233:20 points?

233:21 A. No.

233:22 Q. Okay. Do you think that whoever

233:23 -- Do you think that whoever was critical of

233:24 your study is just plain wrong?

234:03 - 235:23 Battler, Leanne (2020-09-10) 2:18

234:03 A. I mean, there was a definite Re: [233:22 to 234:11] Re: [233:22 to 234:11]

234:04 correlation. Correlation does not imply Pltf Obj 04. 702, 11. SUSTAINED/SUSTAINED

234:05 causation, but there's no -- there's no other Foundation, 12. Hearsay DOC EXCLUDED

234:06 -- The comment does not explain how other

234:07 factors, such as overseas deployments, changes Re: [234:12 to 235:23] Re: [234:12 to 235:23]

234:08 in equipment, and changes in training -- it Pltf Obj 04. 702, 11. SUSTAINED

234:09 doesn't define what those were, and how they Foundation

234:10 could have resulted in the changes that I

234:11 documented.

234:12 Q. Okay. But in all fairness,

234:13 whoever authored footnote 27 notes that your

234:14 article did not consider factors that could

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234:15 have -- could also have had effects, such as

234:16 overseas deployments. Yours did not consider

234:17 overseas deployments; true?

234:18 A. Of course it considered overseas

234:19 deployments.

234:20 Q. Okay. Even though this article

234:21 says you're not considering overseas

234:22 deployments?

234:23 A. Who said it didn't consider

234:24 overseas deployments?

234:25 The Army Hearing Program Success

235:01 Story was documented during a time of overseas

235:02 deployments.

235:03 Q. It says here: But the study does

235:04 not consider other factors that could have also

235:05 had effects, such as overseas deployments,

235:06 changes in equipment, and changes in training.

235:07 Do you see that?

235:08 A. Yes, I see that.

235:09 Q. Did your article discuss changes

235:10 in training?

235:11 A. Yes.

235:12 Q. Did it discuss changes in

235:13 equipment?

235:14 A. Yes.

235:15 Q. And did it discuss overseas

235:16 deployments?

235:17 A. Yes.

235:18 Q. So even though the Army's United

235:19 States Government Accountability Office

235:20 evaluated your article and had those

235:21 criticisms, you believe that your article

235:22 discussed those things accurately and fully?

235:23 A. Yes.

235:24 - 236:01 Battler, Leanne (2020-09-10) 0:10

235:24 Q. Okay. And you didn't see this

235:25 footnote until two days ago; right?

236:01 A. Right.

237:18 - 238:02 Battler, Leanne (2020-09-10) 0:21

237:18 Q. Okay. Did you talk with anyone Re: [237:18 to 237:25] Re: [237:18 to 237:25]

237:19 about this deposition other than the Major who Pltf Obj 01. 402, 15. 403 SUSTAINED

237:20 is here with us today? (Prejudicial vs Probative)

237:21 A. I told my ex-husband: Oh, my Re: [238:01 to 238:02]

237:22 God, the email about the stun mullet that you Re: [238:01 to 238:02] SUSTAINED

237:23 sent to Doug Ohlin was included in the Pltf Obj 01. 402

237:24 paperwork. So I did tell him that.

237:25 Q. Okay.

238:01 A. He thought that was pretty

238:02 awesome.

238:13 - 239:12 Battler, Leanne (2020-09-10) 1:15

238:13 Real quick. It appears -- We've

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238:14 gone through some emails today where you were

238:15 having a back and forth with Brian Myers, with

238:16 Aearo, we saw his email address, you remember

238:17 that?

238:18 A. Uh-huh.

238:19 Q. Correct?

238:20 A. Yes.

238:21 Q. And in those back and forths, you

238:22 were talking about some of the pros and cons of

238:23 the CAEv2; true?

238:24 A. Yes.

238:25 Q. And I'm categorizing it as a back

239:01 and forth. Do you think that's a fair

239:02 categorization?

239:03 A. As a quality assurance?

239:04 Q. Yes.

239:05 A. Yes.

239:06 Q. Okay. In those back-and-forth

239:07 emails with Brian Myers, or anyone else from

239:08 Aearo, did any of them ever share any problems

239:09 that they might have had with the CAEv2 with

239:10 you?

239:11 A. No. It was always what can we do

239:12 to help the soldier.

239:13 - 239:15 Battler, Leanne (2020-09-10) 0:08

239:13 Q. Okay. But they never shared any Re: [239:13 to 239:19] Re: [239:13 to 239:19]

239:14 of their internally known problems with the Def Obj improper counter OVERRULED

239:15 plug with you; true statement? (lines 239:13-19 and 240:10-13

should be read to the jury

239:18 - 239:19 Battler, Leanne (2020-09-10) 0:05 together with 239:20-24 and

239:18 Q. Go ahead. You can answer. 240:4-7. However, if 239:20-24

239:19 A. That's true. and 240:4-7 are excluded, then

239:13-19 and 240:10-13 

239:20 - 239:24 Battler, Leanne (2020-09-10) 0:15 be excluded on the sames

239:20 Q. Okay. If there had been some grounds).

239:21 problems with the plug that they knew about,

239:22 the back and forth would have been an

239:23 opportunity for them to disclose that

239:24 information to you; true?

240:05 - 240:07 Battler, Leanne (2020-09-10) 0:08

240:05 A. I think if there was a problem

240:06 with the plug, I would have found it on my own,

240:07 regardless of them telling me or not.

240:10 - 240:13 Battler, Leanne (2020-09-10) 0:13

240:10 My question is: They never Re: [240:10 to 240:13] Re: [240:10 to 240:13]

240:11 shared any of the problems that they knew about Def Obj improper counter OVERRULED

240:12 the plug with you; true? (lines 239:13-19 and 240:10-13

240:13 A. That is true. should be read to the jury

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together with 239:20-24 and

241:15 - 242:08 Battler, Leanne (2020-09-10) 1:54 240:4-7. However, if 239:20-24

241:15 Q. Good afternoon, Lieutenant and 240:4-7 are excluded, then Re: [241:15 to 242:08] SUSTAINED

241:16 Colonel Battler. You were shown a GAO study, 239:13-19 and 240:10-13 should Pltf Obj 611; foundation, GAO

241:17 Exhibit 24, that included some supposed be excluded on the same excluded per court order

241:18 criticisms of your report on the success story grounds).

241:19 article that you wrote; correct?

241:20 A. Correct. Re: [241:21 to 241:25] Re: [241:21 to 241:25]

241:21 Q. And, in fact, that GAO had Pltf Obj 03. 611; Leading, 04. SUSTAINED DOC

241:22 various criticisms that certain things weren't 702, 11. Foundation EXCLUDED

241:23 in your report. But, in fact, every one of

241:24 those things was in your report; correct?

241:25 A. Correct.

242:01 Q. And you would agree with me that Re: [242:01 to 242:08] Re: [242:01 to 242:08]

242:02 even in the case of the government -- the Pltf Obj 11. Foundation, 03. SUSTAINED DOC

242:03 government reports, and the case of this GAO 611; Leading EXCLUDED

242:04 report that criticized your report, sometimes

242:05 the government just gets it wrong; right?

242:06 A. Shockingly.

242:07 Q. So you would agree with that?

242:08 A. Yes, I agree.

242:15 - 243:05 Battler, Leanne (2020-09-10) 1:41

242:15 Q. You were asked questions by Mr.

242:16 Monsour if there was a problem with the Combat

242:17 Arms Version 2, would that have been an

242:18 opportunity for Aearo to tell you, he was

242:19 referring to the back and forth of the emails.

242:20 And your testimony was: If there was a problem

242:21 with the plug, I would have found it on my own.

242:22 What did you mean by that?

242:23 A. The soldiers -- The soldiers

242:24 would have told me. They would have told me.

242:25 Q. You were asked some questions

243:01 about your ex-husband and the picture that you

243:02 took of an earplug in his ear contacting his

243:03 tragus.

243:04 Do you recall that?

243:05 A. Yes.

243:20 - 244:02 Battler, Leanne (2020-09-10) 0:19

243:20 Q. I'll just limit it to your

243:21 experience. In your experience, why does it --

243:22 with respect to your husband, whose plug

243:23 contacted his tragus; right?

243:24 A. Uh-huh.

243:25 Q. With respect to your ex-husband,

244:01 why didn't the plug -- the outer flange of the

244:02 plug contacting his tragus cause a problem?

244:07 - 244:20 Battler, Leanne (2020-09-10) 1:37

244:07 A. Because the -- The internal

244:08 portion in his ear was -- was seated.

244:09 Q. And your husband used that plug The Court agrees with 

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244:10 and did not sustain any hearing loss or

244:11 tinnitus; correct?

244:12 A. Correct.

244:13 Q. Okay. You were asked some

244:14 questions about the four surveys you did,

244:15 Exhibits 15 and 18, do you recall that?

244:16 A. Yes.

244:17 Q. And Exhibit 15, the first

244:18 individual, said there was nothing that he

244:19 would change about the plug; right?

244:20 A. Yes.

245:08 - 245:25 Battler, Leanne (2020-09-10) 1:48

245:08 Q. So one individual's response was Re: [245:08 to 245:25] Re: [245:08 to 245:25]

245:09 that they wouldn't change anything; right? Pltf Obj 802; 402/403; SUSTAINED

245:10 A. Right. 701/702; conjecture;

245:11 Q. One individual's response was speculation

245:12 they were effective when they were worn;

245:13 correct?

245:14 A. Yes. Is that the one who lost

245:15 them?

245:16 Q. And then there were two

245:17 individuals who indicated that they were not

245:18 comfortable; right?

245:19 A. Right.

245:20 Q. Now, for individuals who

245:21 indicated that they were not comfortable, you

245:22 indicated that that would either be because

245:23 they didn't like the material or because of the

245:24 diameter. It's not clear; right?

245:25 A. Correct.

246:01 - 246:07 Battler, Leanne (2020-09-10) 0:16

246:01 Q. Is that correct? Re: [246:01 to 246:07] Re: [246:01 to 246:07]

246:02 A. Yes. Correct. Pltf Obj 802; 402/403; SUSTAINED

246:03 Q. And so if the diameter was too 602/701/702; incomplete

246:04 big, for those individuals, of the plug, they hypothetical;

246:05 should not have been wearing the plug in the improper/incomplete

246:06 first instance; correct? designation; speculation; 611

246:07 A. Correct. leading; conjecture

246:19 - 247:13 Battler, Leanne (2020-09-10) 1:06

246:19 Q. Well, let me ask you this: If Re: [246:19 to 247:13] Re: [246:19 to 247:13]

246:20 the plugs were so big that they were Pltf Obj 402/403; 602/701/702; SUSTAINED

246:21 uncomfortable, those soldiers should not have improper hypothetical;

246:22 been fitted with those earplugs; correct? speculation; conjecture; 406;

246:23 A. In my experience, if -- Right.

246:24 If we couldn't get the third flange flush with

246:25 the opening of the ear canal, or if it was too

247:01 uncomfortable to reach that point, then we

247:02 would not fit them with -- we would recommend

247:03 they not use that size medium Combat Arms

247:04 earplug.

247:05 Q. Okay. And if it was because the

removal of 244:09-12 

per PTC ruling.

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247:06 -- If they were uncomfortable because of the

247:07 material, the individuals had other options to

247:08 choose from, in terms of material; right?

247:09 A. Right.

247:10 Q. And we talked about the SureFire

247:11 plug, it had a more comfortable material, but

247:12 your testimony was it did not provide the same

247:13 protection as the Combat Arms earplug; right?

247:16 - 247:25 Battler, Leanne (2020-09-10) 1:42

247:16 A. The SureFire earplug feels like a Re: [247:16 to 247:25] Re: [247:16 to 247:25]

247:17 gummy bear in your ear. It's awesome. Pltf Obj Nonresponsive SUSTAINED

247:18 Q. But you testified earlier you answers; 611 leading

247:19 were concerned about statements made about questions; 701/702; 402/403;

247:20 SureFire because, in fact, SureFire did not speculatuion; conjecture

247:21 provide the same protection for hearing as

247:22 Combat Arms; correct?

247:23 A. My experience was that it did not

247:24 -- that more hearing loss was incurred when

247:25 soldiers wore the SureFire earplug.

248:04 - 248:21 Battler, Leanne (2020-09-10) 1:46

248:04 Q. And that's based on your personal Re: [248:04 to 248:21] Re: [248:04 to 248:21]

248:05 experience; correct? Pltf Obj 611 leading, vague, SUSTAINED

248:06 A. Yes, sir. asked/answered; 701/702; 802;

248:07 Q. And so looking -- looking back at 402/403; conjecture; calls for

248:08 Exhibits 15 to 18, when I was asking you speculation

248:09 questions, you called the Combat Arms Version 2

248:10 a great product; correct?

248:11 A. Yes.

248:12 Q. And did anything about the survey

248:13 responses you received from the soldiers, those

248:14 four survey responses, did anything in those

248:15 change your view that the Combat Arms Version 2

248:16 was a great product?

248:17 A. It's a great product if it's the

248:18 right size.

248:19 Q. Right. And the Army audiologists

248:20 knew that it was not the right size for

248:21 everybody; correct?

248:24 - 249:16 Battler, Leanne (2020-09-10) 1:53

248:24 A. My training -- My training Re: [248:24 to 249:16] Re: [248:24 to 249:16]

248:25 included that there's no such thing as one size Pltf Obj Nonresponsive SUSTAINED

249:01 fits all. answers; 611 leading

249:02 Q. You did not -- You did not need questions; 701/702; 402/403;

249:03 Aearo to tell you, Lieutenant Colonel Battler, speculatuion; conjecture; 802

249:04 that the Combat Arms Version 2 did not fit

249:05 everybody; correct?

249:06 A. That's correct.

249:07 Q. You knew that based on your own

249:08 experience?

249:09 A. Correct.

249:10 Q. Mr. Monsour asked you some

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249:11 questions about needing to constantly reassert

249:12 -- reinsert earplugs. But your experience was

249:13 that you did not need to reinsert the Combat

249:14 Arms Version 2 more than any other earplugs;

249:15 correct?

249:16 A. My experience, correct.

Page 77 of 77

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 155 of 320
Preserved 

Objections Previous Rulings New Objections Rulings

8:14 - 8:16 Ibrahim, Ahmed (2020-09-23) 0:08

8:14 Could you first state your name

8:15 for the record?

8:16 A. Ahmed Ibrahim.

8:21 - 9:09 Ibrahim, Ahmed (2020-09-23) 0:21

8:21 Q. Okay. And do you hold a

8:22 professional license?

8:23 A. Yes. I am a physician in

9:01 Tennessee.

9:02 Q. Okay. And what type of physician

9:03 are you?

9:04 A. I'm a psychiatrist.

9:05 Q. Do you hold an MD?

9:06 A. Yes, ma'am.

9:07 Q. And are you registered in the

9:08 state of Tennessee?

9:09 A. Yes.

10:01 - 11:01 Ibrahim, Ahmed (2020-09-23) 1:01

10:01 Q. Have you ever met or spoken with Re: [10:01 to 11:01]

10:02 any lawyer or investigator who represents Pltf Obj 401; 403

10:03 Mr. McCombs, Dustin McCombs?

10:04 A. I did speak with Mr. Bartlett and

10:05 I think two of his colleagues.

10:06 Q. And when did you speak with

10:07 Mr. Bartlett?

10:08 A. That was about ten days ago or a

10:09 week ago. I'm sorry, I didn't record the

10:10 date, but it was about seven or ten days

10:11 ago.

10:12 Q. Okay. And was that an in-person

10:13 meeting or over the phone?

10:14 A. Over the phone.

10:15 Q. And how long did that conversation

10:16 last?

10:17 A. About 30 minutes.

Designations

* Defendants currently propose playing on the testimony in white. Testimony highlighted in gray reflects the testimony originally designated subject to Plaintiffs' full objection that Defendants no 

longer intend to play.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 156 of 320
10:18 Q. 30, 30?

10:19 A. Yes, ma'am.

10:20 Q. And Mr. Bartlett is a lawyer

10:21 representing Mr. McCombs, correct, as far as

10:22 you know?

10:23 A. That's how he represented -- how

11:01 he introduced himself, yes.

12:05 - 12:16 Ibrahim, Ahmed (2020-09-23) 1:37

12:05 Q. Can you tell me what you discussed Re: [12:05 to 12:16] SUSTAINED

12:06 with them concerning the records? Def Obj 401 Relevance; 801

12:07 A. Well, first they asked me if I had Hearsay

12:08 any recollection of Mr. McCombs, and I'm

12:09 sorry, I've been trying, but the last time I

12:10 saw him was three years ago, so I only -- I

12:11 told them I can't remember him personally.

12:12 I can only go by the records.

12:13 So they asked me records I might

12:14 have for him and the treatment plan I had

12:15 for him and how I thought his condition was,

12:16 so this was basically the conversation.

12:17 - 13:11 Ibrahim, Ahmed (2020-09-23) 1:52

12:17 Q. Okay. What did you tell them with Re: [12:17 to 13:11]

12:18 respect to the diagnosis that you had? Pltf Obj 403; MIL C8

12:19 A. He is diagnosed with

12:20 post-traumatic stress disorder, and at that

12:21 time, based on the old diagnostic criteria,

12:22 it was alcohol abuse. So this was two

12:23 diagnoses from my standpoint, psychiatric

13:01 standpoint.

13:02 Q. Okay. And did you see anything in

13:03 your records that would change your

13:04 diagnosis of PTSD and alcohol abuse?

13:05 A. No, ma'am.

13:06 Q. And does that remain your

13:07 diagnosis today, that Mr. McCombs had

13:08 alcohol abuse as one of the diagnoses when

13:09 he was your patient?

13:10 A. Based on the record review, it

13:11 remains the same.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 157 of 320
13:14 - 14:04 Ibrahim, Ahmed (2020-09-23) 1:45

13:14 Did Mr. Bartlett say anything to Re: [13:14 to 14:04] OVERRULED

13:15 you with respect to your diagnoses, either Def Obj 401 Relevance; 801

13:16 of PTSD or alcohol abuse? Hearsay

13:17 A. There was a question on whether

13:18 the -- the diagnosis of PTSD can be induced

13:19 or triggered by tinnitus. That was their

13:20 question, and my answer was that PTSD is

13:21 caused by trauma.

13:22 Having tinnitus can lead to

13:23 sleeping difficulty which can exaggerate

14:01 some of the symptoms of PTSD like the

14:02 nightmares and insomnia. That was the only

14:03 pertinent thing I remember from the

14:04 discussion.

14:05 - 14:18 Ibrahim, Ahmed (2020-09-23) 1:54

14:05 Q. Did you ever reach a conclusion

14:06 while you were treating Mr. McCombs as to

14:07 what was causing his PTSD?

14:08 A. Yes. That's the first thing in

14:09 diagnosing PTSD is to find the clinical

14:10 trauma, so it was combat-related trauma with

14:11 regard to -- he was infantryman, so he was

14:12 exposed to combat and a blast with IUD in

14:13 2009, so that's what the cause for PTSD.

14:14 Q. So your diagnosis had been that

14:15 Mr. McCombs' PTSD was caused by his exposure

14:16 to combat-induced trauma when he was in the

14:17 service; is that correct?

14:18 A. That's correct.

16:01 - 16:08 Ibrahim, Ahmed (2020-09-23) 0:27

16:01 Q. I believe you did. But just to

16:02 confirm, in your professional opinion, from

16:03 your visits and treatment of Mr. McCombs, is

16:04 it correct that you concluded his

16:05 post-traumatic stress disorder was the

16:06 result of his exposure to combat as you

16:07 described it?

16:08 A. Correct.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 158 of 320
16:19 - 17:15 Ibrahim, Ahmed (2020-09-23) 1:04

16:19 Q. Okay. Did you ever reach a Re: [16:19 to 17:15] OVERRULED

16:20 conclusion as to whether Mr. McCombs' PTSD Def Obj Improper counter,

16:21 was caused by tinnitus as opposed to combat testimony does not provide

16:22 exposure as you described it? clarification or completeness.

16:23 A. No. Because that would be

17:01 clinically incorrect. Tinnitus cannot cause

17:02 post-traumatic stress disorder. As I

17:03 mentioned, it could exacerbate some of the

17:04 symptoms. So just simply as if you're

17:05 having a medical condition, if you have a

17:06 flu with it, it can exacerbate the symptoms,

17:07 so it can be an associated condition that

17:08 exacerbates the symptoms.

17:09 On the other hand, I perform my

17:10 job as a psychiatrist, so we did not really

17:11 address the medical issues unless they were

17:12 mentioned by the veteran or I had to go

17:13 after them for some reason. So if he had a

17:14 problem with tinnitus, he would discuss that

17:15 with his primary care doctor.

17:16 - 18:04 Ibrahim, Ahmed (2020-09-23) 1:36

17:16 Q. And did you reach any conclusions Re: [17:16 to 18:04] OVERRULED

17:17 as to whether Mr. McCombs' tinnitus had Pltf Obj 403, Incomplete

17:18 exacerbated his PTSD? designation

17:19 A. Based on my review of the notes, I

17:20 have not discussed the tinnitus with him at Re: [17:22 to 18:04] SUSTAINED

17:21 all. Pltf Obj 401; 403

17:22 Q. And did you inform Mr. Bartlett

17:23 and his two colleagues when you spoke to

18:01 them that you have never reached a

18:02 conclusion that tinnitus was associated with

18:03 Mr. McCombs' PTSD?

18:04 A. Correct.

24:08 - 25:03 Ibrahim, Ahmed (2020-09-23) 1:51

24:08 Q. As far as you can see from your Re: [24:08 to 25:03]

24:09 notes, you never recommended Mr. McCombs for Pltf Obj Incomplete

24:10 an otology consult, correct? designation

24:11 A. No. That's correct.

24:12 Q. I apologize -- okay. Let me

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 159 of 320
24:13 re-ask the question so we don't have a

24:14 double negative. As far as you see from

24:15 your note, did you ever recommend

24:16 Mr. McCombs for an otology consult?

24:17 A. No.

24:18 Q. And was it your practice to record

24:19 any such recommendations if you make them

24:20 for a patient?

24:21 A. Yes, ma'am.

24:22 Q. And in the past, when you thought

24:23 it was appropriate, have you recommended

25:01 other patients of the VA for otology

25:02 consult?

25:03 A. Yes.

25:04 - 25:19 Ibrahim, Ahmed (2020-09-23) 1:49

25:04 Q. And what are the type of things Re: [25:04 to 25:19] OVERRULED

25:05 that would cause you typically to recommend Def Obj Improper counter,

25:06 a patient for an otology consult? everything after consult

25:07 A. It's a subjective complaint, so if myself is nonresponsive.

25:08 a veteran, for example, complains of hearing

25:09 loss or tinnitus or something like that, I

25:10 normally encourage them to talk to primary

25:11 care doctor because they can put the consult

25:12 and follow through with it.

25:13 Sometimes they will say, for

25:14 example, I couldn't reach my doctor or

25:15 something like that, so in order to help out

25:16 with the consult myself. But it's always

25:17 just a subjective complaint because this is

25:18 something far away from my specialty, so I

25:19 just refer in that case.

26:07 - 26:17 Ibrahim, Ahmed (2020-09-23) 0:26

26:07 Q. Okay. But what you do do in your

26:08 practice is if somebody complains to you of

26:09 tinnitus conditions, then you would

26:10 recommend them either to their primary care

26:11 physician or to a specialist if needed,

26:12 correct?

26:13 A. Correct.

26:14 Q. And in this case, you do not see

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 160 of 320
26:15 any such notes or indications with respect

26:16 to Mr. McCombs, correct?

26:17 A. Correct.

27:03 - 27:07 Ibrahim, Ahmed (2020-09-23) 0:15

27:03 Q. Okay. Is it correct that, at Re: [27:03 to 27:10] OVERRULED

27:04 least as far as you recall and your notes Pltf Obj Compound

27:05 reflect, Mr. McCombs never complained to you

27:06 about any hearing loss or tinnitus in

27:07 connection with your treatment of him?

27:09 - 27:10 Ibrahim, Ahmed (2020-09-23) 0:06

27:09 A. That's correct. I do not see any Re: [27:03 to 27:10] OVERRULED

27:10 reflection of that in my notes. Pltf Obj Compound

36:15 - 37:07 Ibrahim, Ahmed (2020-09-23) 1:48

36:15 Let's go to -- I want to talk a

36:16 little bit about your credentials and then

36:17 we'll go to the record. Can you tell me

36:18 about your educational background?

36:19 A. I graduated from the medical

36:20 school of the University of Cairo in Egypt.

36:21 I went to psychiatry residency at Meharry

36:22 Medical College in Nashville, Tennessee. I

36:23 am board certified in psychiatry and board

37:01 certified in addiction medicine.

37:02 Q. When did you obtain your board

37:03 certification in psychiatry?

37:04 A. 2013.

37:05 Q. And have you maintained your

37:06 licensing consistently since then?

37:07 A. Yes, ma'am.

38:03 - 38:17 Ibrahim, Ahmed (2020-09-23) 1:54

38:03 Q. Okay. Can you walk us through

38:04 your work history, employment history, since

38:05 obtaining -- since graduating with your

38:06 degree in psychiatry?

38:07 A. So I finished my residency in 2013

38:08 and I started working right away for the VA.

38:09 So I was employed by the VA from July 2013

38:10 until August 2018. And then since then,

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 161 of 320
38:11 until now, I am employed by Parkridge Valley

38:12 Psychiatric Hospital here in Chattanooga.

38:13 In addition, I always maintained a

38:14 small private practice.

38:15 Q. And are you actively seeing

38:16 patients?

38:17 A. Yes, ma'am.

40:04 - 40:22 Ibrahim, Ahmed (2020-09-23) 1:52

40:04 Q. So is it fair to say that you have

40:05 treated thousands, many thousands of

40:06 veterans in connection with your practice of

40:07 psychiatry for the VA?

40:08 A. Absolutely.

40:09 Q. Okay. You left the VA in August

40:10 of 2018, correct?

40:11 A. Yes, ma'am.

40:12 Q. Why did you leave?

40:13 A. I mean, I loved the VA but it

40:14 was -- there are procedures, too much

40:15 bureaucracy for me, so I decided to get into

40:16 something else more private.

40:17 Also on the other side, I loved

40:18 the population, but it was the same thing

40:19 every day, like the same four or five

40:20 diagnoses we're dealing with every day, so I

40:21 did not want to lose my skills. I wanted to

40:22 be open to more things to do.

41:18 - 42:08 Ibrahim, Ahmed (2020-09-23) 1:48

41:18 Q. Was post-traumatic stress disorder Re: [42:04 to 42:08]

41:19 a very common diagnoses for veterans of the Pltf Obj 401; 403; MIL 8

41:20 military?

41:21 A. Absolutely.

41:22 Q. And was post-traumatic stress

41:23 disorder or PTSD the most common diagnoses

42:01 for former members of the military?

42:02 A. For my -- in my practice, when I

42:03 saw them, yes, it was.

42:04 Q. Okay. Alcohol use, abuse --

42:05 excuse me, let me start over.

42:06 Alcohol abuse, is that also a

OVERRULED. MIL Mc8 

(motion to exclude 

reference to McCombs' 

worker's compensation 

applications, claim, 

and/or benefits) is not 

applicable. MIL PG8 

(motion to exclude 

alcohol use for 

McCombs) was 

preserved per ECF 71, 

but no such motion was 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 162 of 320
42:07 diagnoses, a medical diagnoses for you?

42:08 A. Yes.

43:02 - 43:02 Ibrahim, Ahmed (2020-09-23) 0:03

43:02 Q. Okay. And have you treated many, Re: [43:02 to 43:02]

Def Obj Incomplete Counter

43:03 - 43:07 Ibrahim, Ahmed (2020-09-23) 0:17

43:03 many thousands of veterans for PTSD? Re: [43:03 to 43:04]

43:04 A. Yes. Pltf Obj Incomplete

43:05 Q. And have you also treated designation

43:06 thousands of veterans for alcohol abuse?

43:07 A. I would say yes. Re: [43:05 to 43:07]

Pltf Obj 401; 403; MIL 8

44:03 - 44:19 Ibrahim, Ahmed (2020-09-23) 1:56

44:03 Q. Your treatment of Mr. McCombs, is Re: [44:08 to 44:12]

44:04 it correct that for him, you did not make Pltf Obj MIL C8

44:05 any connection between his PTSD and tinnitus

44:06 or hearing loss?

44:07 A. I did not.

44:08 Q. And is it also correct in your

44:09 treatment of Mr. McCombs you did not make

44:10 any association or connection with his

44:11 alcohol abuse with tinnitus or hearing loss? Re: [44:13 to 45:07] OVERRULED

44:12 A. I did not. Pltf Obj 403

44:13 Q. You were aware at the time you

44:14 were treating him that there were on

44:15 occasion soldiers who would complain about

44:16 tinnitus, and for them you would document

44:17 and either refer them to their primary

44:18 physician or even do a consult or make a

44:19 recommendation at times, correct?

44:22 - 45:05 Ibrahim, Ahmed (2020-09-23) 0:13

44:22 A. Yes. Re: [44:13 to 45:07] OVERRULED

44:23 Q. That was not the case for Pltf Obj 403

45:01 Mr. McCombs, correct?

45:02 A. Based on the records I'm seeing,

45:03 no.

45:04 Q. Is my statement correct?

45:05 A. Okay.

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

ever filed.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 163 of 320
45:07 - 45:07 Ibrahim, Ahmed (2020-09-23) 0:08

45:07 A. Your statement is correct. Yes. Re: [44:13 to 45:07] OVERRULED

Pltf Obj 403

45:18 - 46:02 Ibrahim, Ahmed (2020-09-23) 1:31

45:18 Q. (BY MS. KARIS:) Mr. -- strike Re: [45:22 to 46:02]

45:19 that. Dr. Ibrahim, I have put up on the Pltf Obj 401;403

45:20 screen a page from a document for the record

45:21 that is DLMcCombs VA 1379 through 1384. Is

45:22 this one of the records that plaintiff's

45:23 counsel provided to you in connection with

46:01 your testimony here today?

46:02 A. Is this by David Rose? Yes, yes.

46:03 - 46:06 Ibrahim, Ahmed (2020-09-23) 0:07

46:03 Q. And have you had an opportunity to

46:04 consult this record before you testified

46:05 here today?

46:06 A. Yes, ma'am.

46:10 - 47:07 Ibrahim, Ahmed (2020-09-23) 1:55

46:10 Q. And you relied on this in

46:11 providing treatment to Mr. McCombs, correct?

46:12 A. Yes. So Dr. David Rose is a

46:13 psychologist. I mean, he was at that time.

46:14 I don't know if now. But he was a

46:15 psychologist at the VA in the PCMHI clinic

46:16 just like myself.

46:17 So whenever there was a consult

46:18 for primary care for mental health, he would

46:19 see the patient first, do his evaluation and

46:20 then send them to me afterwards.

46:21 Q. Okay. So if we look at the top,

46:22 the date of this record is December 8th of

46:23 2015, correct?

47:01 A. Yes.

47:02 Q. Under action item initial

47:03 treatment plan right in the middle -- well,

47:04 first of all, the last name of the patient

47:05 is McCombs as reflected in the record,

47:06 correct? Do you see that?

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 164 of 320
47:07 A. Yes.

47:13 - 52:22 Ibrahim, Ahmed (2020-09-23) 6:27

47:13 Q. Okay. Under action item initial Re: [47:20 to 47:23]

47:14 treatment plan, it says reported -- strike Pltf Obj MIL C8

47:15 that.

47:16 Reported symptoms may be

47:17 consistent with moderate to severe anxiety.

47:18 Past HX, is that history?

47:19 A. Yes.

47:20 Q. Of depression, alcohol use

47:21 disorder quote -- I'm sorry. Colon moderate

47:22 PTSD and psychosis?

47:23 A. I see that.

48:01 Q. Did I read that correctly?

48:02 A. Yes, ma'am.

48:03 Q. And then it has assessment scores

48:04 and treatment history. Can you walk us

48:05 through -- first of all, what is PHQ-9, what

48:06 is that?

48:07 A. PHQ-9 is an assessment for

48:08 depression. It's Patient Health

48:09 Questionnaire 9th Edition. So PHQ-9 is an

48:10 assessment for depression and --

48:11 Q. Go ahead. What does a score of 13

48:12 indicate?

48:13 A. 13 indicates moderate depression.

48:14 Q. What is the scale?

48:15 A. So the scale is nine questions,

48:16 and everyone would go from 0 to 3. So

48:17 basically you can have a scale from 0 to 27.

48:18 Let me pull it up in order to get

48:19 this absolutely correct, because that's

48:20 something that we did not do. It was

48:21 actually the nurses did over the phone.

48:22 Scoring sheets. Okay. So

48:23 patients get asked nine questions basically,

49:01 and they can score from 0, which is not at

49:02 all, 1 or 2 or 3, 3 which means having these

49:03 symptoms every day.

49:04 And if they score between -- less

49:05 than 4, so this will mean that they do not

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 165 of 320
49:06 need active treatment for depression. If

49:07 they score 5 to 14, it means there is

49:08 depression that needs to be treated. And

49:09 then if they score more than 15, it means

49:10 treatment is more or less urgent in order to

49:11 prevent harm.

49:12 Q. And is this a questionnaire that

49:13 the patient themselves completes?

49:14 A. That was done over the phone, yes.

49:15 So every patient that was referred for

49:16 mental health had a phone assessment, about

49:17 90 minutes, going through all of these

49:18 questions.

49:19 Q. But the patient is the one that

49:20 provides the score?

49:21 A. Correct.

49:22 Q. They're asked the questions and

49:23 they get a score for themselves, correct?

50:01 A. So the nurse, for example, will

50:02 ask them do you have different interest or

50:03 pleasure in doing things, please tell me not

50:04 at all or several days or more than half the

50:05 days or nearly every day. So they choose

50:06 their answer, and based on that, the nurse

50:07 would score.

50:08 Q. Got it. So they provide the

50:09 subjective answer, and then the nurse

50:10 assigns an associated score based on the

50:11 answer; is that correct?

50:12 A. Correct. That's correct.

50:13 Q. Okay. And based on Mr. McCombs'

50:14 answers, his score was 13, which is equal to

50:15 moderate correct?

50:16 A. Equal to moderate depression, yes.

50:17 Q. Okay. And then there is GAD, what

50:18 is GAD-7 stand for?

50:19 A. That's for generalized anxiety

50:20 disorder. So the PHQ is more towards

50:21 depressive symptoms, the GAD is more towards

50:22 an anxiety symptoms.

50:23 Q. Okay. And how many questions are

51:01 associated with that score?

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 166 of 320
51:02 A. The generalized anxiety, as I

51:03 said, we don't do it. These are nursing

51:04 assessments, not physician assessments.

51:05 Q. Okay.

51:06 A. Yes. I just don't do -- that

51:07 scoring would depend on different criteria

51:08 to actually diagnosis.

51:09 Q. That's fine. That's fine. Let's

51:10 move on --

51:11 A. It has -- it has seven. It has

51:12 seven questions.

51:13 Q. Got it. Hence the GAD-7; is that

51:14 right?

51:15 A. Yes, the GAD has seven questions,

51:16 and each question also has from 0 to 3 as

51:17 far as the scoring.

51:18 Q. And again, is it the case that the

51:19 patient provides the answer and then some

51:20 score is assigned associated based on that

51:21 answer, correct?

51:22 A. Exactly.

51:23 Q. Okay. What is PCL?

52:01 A. That is a PTSD checklist. Let's

52:02 see. That is a way that they ask questions

52:03 regarding PTSD symptoms.

52:04 Q. And do you know what is on the PCL

52:05 checklist?

52:06 A. It has questions regarding PTSD

52:07 symptoms but, again, in a different format

52:08 for nursing rather than for psychiatrists.

52:09 It had a different scoring. It should be

52:10 available. Like after this page that's

52:11 shown, it will actually show you each one of

52:12 these what questions were asked in each one

52:13 of them. Like this is a snapshot, and then

52:14 the following pages, you will find the

52:15 answers, yes.

52:16 Q. Okay. Understood. And the total

52:17 score for that here is 42. Do you know what

52:18 the range is?

52:19 A. I believe it goes up to 90 or a

52:20 hundred. I mean, that's different, again,

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 167 of 320
52:21 different from what we use, but I think this

52:22 goes to 90 or a hundred.

53:03 - 53:23 Ibrahim, Ahmed (2020-09-23) 1:14

53:03 Q. Okay. So the check -- the PTSD Re: [53:17 to 53:23]

53:04 checklist is associated there as indicated Pltf Obj MIL C8; 401; 403

53:05 with a PCL-5 list; is that correct?

53:06 A. Correct. That is a scoring of 42,

53:07 and actually it goes up to 80. Not 90 or a

53:08 hundred as I said. It goes up to 80.

53:09 Q. And these 20 items listed on the

53:10 checklist are the things that patients,

53:11 including Mr. McCombs, is asked about in

53:12 order to come up with a scoring for PCL,

53:13 correct?

53:14 A. Exactly. Same thing. He would be

53:15 asked the questions, and based on his

53:16 answer, the assessor will put in the score.

53:17 Q. Okay. Right below that, let's go

53:18 back to Page 1379 of this record. It says

53:19 standard drinks in the past week equals ten.

53:20 A. I'm sorry --

53:21 Q. Where does that information come

53:22 from, who provides that information?

53:23 A. The patient as well.

54:05 - 55:09 Ibrahim, Ahmed (2020-09-23) 1:24

54:05 Q. And then below that, binge Re: [54:05 to 55:09]

54:06 episodes in the last three months? Pltf Obj MIL C8; 401; 403

54:07 A. Yes.

54:08 Q. And what is reported here on

54:09 Dr. Rose's record for how many binge

54:10 episodes in the last three months prior to

54:11 December 8th of 2015 Mr. McCombs had?

54:12 A. Binges, 45.

54:13 Q. What constitutes a binge episode?

54:14 A. Six standard drinks or more in one

54:15 day.

54:16 Q. So six alcoholic drinks in one day

54:17 constitutes one binge episode, correct?

54:18 A. Yes, ma'am.

54:19 Q. And who provides the information

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 168 of 320
54:20 for how many binge episodes a patient has

54:21 had in the last three months?

54:22 A. The patient.

54:23 Q. So Mr. McCombs would have reported

55:01 that in the prior three months, he had had

55:02 45 days where he had had six drinks or more,

55:03 correct?

55:04 A. Yes. That will mean about every

55:05 other day basically.

55:06 Q. Is that consistent with your

55:07 diagnosis that Mr. McCombs had alcohol abuse

55:08 at the time --

55:09 A. Yes.

55:13 - 57:02 Ibrahim, Ahmed (2020-09-23) 2:15

55:13 Dr. Ibrahim, if we look at the Re: [55:13 to 60:04]

55:14 page marked VA 1382. Under alcohol use and Pltf Obj MIL C8; 401; 403

55:15 smoking in the middle of the page, do you

55:16 see that?

55:17 A. Yes.

55:18 Q. Number of drinks in the last seven

55:19 days, how many were reported, is that the

55:20 same number ten there?

55:21 A. Yes.

55:22 Q. Okay. And 45 binge episodes in

55:23 the last three months, correct?

56:01 A. Yes.

56:02 Q. What is the next statement?

56:03 A. Level of drink is above

56:04 recommended limits.

56:05 Q. Do you agree with that?

56:06 A. Yes. According to the American

56:07 Academy of Addiction Medicine, for a healthy

56:08 male under the age of 60, the maximum

56:09 recommended standard drinks in a week is no

56:10 more than 14, and the maximum recommended in

56:11 one day is no more than four.

56:12 Q. It goes on to say that the patient

56:13 reported a problematic pattern of alcohol

56:14 use within the last 12 months. Do you see

56:15 that?

56:16 A. Yes.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 169 of 320
56:17 Q. What do you understand that to

56:18 mean?

56:19 A. Problematic pattern meaning that

56:20 he believes alcohol has affected his social

56:21 life or occupational level or mental health

56:22 status or physical health status.

56:23 Q. Was one of the reasons that

57:01 Mr. McCombs was seeking treatment associated

57:02 with his alcohol use and abuse?

57:04 - 60:04 Ibrahim, Ahmed (2020-09-23) 4:43

57:04 A. Yes. Re: [55:13 to 60:04]

57:05 Q. Did Mr. McCombs seek psychiatric Pltf Obj MIL C8; 401; 403

57:06 treatment and evaluation as a result of his

57:07 alcoholic drinking, as far as you

57:08 understood?

57:09 A. For both anxiety and alcohol, yes.

57:10 Q. Okay. Just a couple lines down,

57:11 it says alcohol use disorder severity is

57:12 based on the number of symptoms endorsed.

57:13 What is alcohol use disorder?

57:14 A. That is the new term for alcohol

57:15 abuse or alcohol dependence, so they are all

57:16 gathered now under the umbrella of alcohol

57:17 use disorder.

57:18 Basically any substance, whether

57:19 alcohol or else, substance use disorder

57:20 meaning the person is consuming a substance

57:21 and it's causing them a problem. Now we can

57:22 see how many problems the substance is

57:23 causing and we can rate it as mild or

58:01 moderate or severe.

58:02 Q. Okay. Tell us, first of all, does

58:03 the patient provide the information in terms

58:04 of what problems it is causing?

58:05 A. That is correct.

58:06 Q. And did Mr. McCombs provide

58:07 information on what problems his alcohol use

58:08 was causing in his life?

58:09 A. Yes.

58:10 Q. What are the problems that

58:11 Mr. McCombs reported that alcohol use was

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 170 of 320
58:12 causing in his life when he was seeking

58:13 psychiatric evaluation and assistance?

58:14 A. Of course, there was this one

58:15 assessment over the phone, and then the

58:16 assessment with me which I did, you know,

58:17 depend on further questioning.

58:18 So based on this phone assessment,

58:19 he did report he was drinking more than he

58:20 intended, that he had tried to quit on his

58:21 own before but he was unsuccessful and that

58:22 he had some issues, interpersonal problems

58:23 related to alcohol. So that could mean

59:01 fights with significant other, for example,

59:02 because of the amount of drinking.

59:03 He also had high blood pressure,

59:04 and alcohol use was affecting that, so

59:05 that's why you see the third one from last,

59:06 drinking despite health problems, he said

59:07 yes.

59:08 Q. Okay. And there is a reference to

59:09 tolerance, yes. What does that mean?

59:10 A. Tolerance means that consuming the

59:11 same amount of the substance no longer gives

59:12 the same effect. So if someone used to have

59:13 a certain effect from two drinks, after a

59:14 year or two, now they need three or four to

59:15 get the same effect. That's what tolerance

59:16 means.

59:17 Q. Okay. And so did Mr. McCombs

59:18 report that the same quantity of alcohol he

59:19 was previously using was not having the same

59:20 effect at this time, that he had built up a

59:21 tolerance for alcohol at this point?

59:22 A. Apparently through this interview,

59:23 yes.

60:01 Q. And did he report as a result of

60:02 his alcohol use in this interview that it

60:03 was causing him interpersonal problems?

60:04 A. He answered yes to that as well.

60:08 - 60:12 Ibrahim, Ahmed (2020-09-23) 0:13

60:08 He had health-related issues such Re: [60:08 to 60:12] OVERRULED. MIL PC8 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 171 of 320
60:09 as the blood pressure, and his alcohol use Pltf Obj MIL C8; 401; 403

60:10 was negatively affecting his health in that

60:11 respect, correct?

60:12 A. Yes, he also answered yes to that.

61:08 - 61:14 Ibrahim, Ahmed (2020-09-23) 0:25

61:08 MS. KARIS: Yeah. Let me back up. Re: [61:08 to 61:14] OVERRULED

61:09 That's a great reminder and my fault. Let's Pltf Obj 401

61:10 go back to 1379 through 1384. Let's mark

61:11 this as an exhibit, please.

61:12

61:13 (Exhibit 24 was marked for identification

61:14 and is attached to the original transcript.)

62:11 - 62:12 Ibrahim, Ahmed (2020-09-23) 0:10

62:11 Now let's go to what we're going

62:12 to mark as Exhibit 25, VA 1371 through 1373.

62:21 - 63:03 Ibrahim, Ahmed (2020-09-23) 0:14

62:21 Q. Give us a nanosecond or more. Re: [62:21 to 63:03]

62:22 This is your note, just so you know since Pltf Obj 401; 403

62:23 you have electronic copies that plaintiff's

63:01 counsel provided you, your note dated

63:02 December 16th of 2015.

63:03 A. Okay.

66:06 - 66:15 Ibrahim, Ahmed (2020-09-23) 0:27

66:06 Q. Okay. And what Mr. McCombs Re: [66:06 to 66:15]

66:07 reported to you was that he used to drink Pltf Obj MIL C8; 401; 403

66:08 four mixed drinks a night but that he has

66:09 now cut down some after some education by

66:10 his primary care provider, correct?

66:11 A. Yes.

66:12 Q. And he self-reported that he was

66:13 drinking two to three drinks several days a

66:14 week, correct?

66:15 A. Yes.

68:01 - 68:15 Ibrahim, Ahmed (2020-09-23) 1:50

68:01 Q. So let's walk through the record Re: [68:07 to 68:15]

68:02 then. What we're looking at is the very Pltf Obj 401; 403; MIL C3

68:03 first visit of Mr. McCombs to you on Page VA

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 172 of 320
68:04 1371. That's what's noted there at the top

68:05 of the record, correct?

68:06 A. Correct.

68:07 Q. Okay. And it says ID 27-year-old

68:08 white male, 0 percent SC. What does SC

68:09 stand for?

68:10 A. Service connected, as in VA

68:11 disability.

68:12 Q. Would that indicate whether the

68:13 veteran is receiving any VA disability at

68:14 that time?

68:15 A. Correct.

69:20 - 70:11 Ibrahim, Ahmed (2020-09-23) 1:47

69:20 Q. Okay. Let's go back to your Re: [69:20 to 70:11]

69:21 intake notes. CC/reason for consult, what Pltf Obj MIL C8

69:22 does that stand for?

69:23 A. Chief complaint.

70:01 Q. And what chief complaint -- go

70:02 ahead.

70:03 A. I put here -- since it's a

70:04 consult, we put what the primary care

70:05 physician put as the reason for consult, so

70:06 his primary care physician put it for

70:07 alcohol use and anxiety. In the consult, it

70:08 says alcohol use and anxiety.

70:09 Q. Okay. On the alcohol use, HPI,

70:10 what does HPI stand for?

70:11 A. History of present illness.

70:19 - 71:11 Ibrahim, Ahmed (2020-09-23) 1:53

70:19 Q. Okay. And what did Mr. McCombs

70:20 report to you in his first visit?

70:21 A. So basically, reading from what I

70:22 mentioned here, finds himself drinking to

70:23 get to sleep, up to four mixed drinks a

71:01 night. Dreaming about war experience. His

71:02 girlfriend noted that he is having some

71:03 behavioral issues such as anger and easily

71:04 aggravated. He tends to not talk to anyone

71:05 about his issues and now more withdrawn, so

71:06 that's kind of his initial things that he

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 173 of 320
71:07 mentioned.

71:08 And then of course we went through

71:09 all the questions for the PHQ which is the

71:10 depression, GAD which is anxiety, PCL which

71:11 is PTSD and the alcohol. So --

71:14 - 76:14 Ibrahim, Ahmed (2020-09-23) 6:34

71:14 Q. Now, the scores, the scores that Re: [72:13 to 73:06]

71:15 we see here, the PHQ, the GAD, and the PCL, Pltf Obj MIL C8; 401; 403

71:16 is that based on you asking him those

71:17 questions? Re: [74:01 to 76:14]

71:18 A. No, ma'am. As it shows right Pltf Obj MIL C8; 401; 403

71:19 above the PHQ, it says reviewed full

71:20 evaluation results. So a full evaluation

71:21 was done December 8th. I saw Mr. McCombs

71:22 December 16th, so it was eight days later.

71:23 Q. Okay. And do you go over those

72:01 questions with him at all or no?

72:02 A. Correct. So we go over them. The

72:03 purpose of the phone interview is to save --

72:04 save us time. So instead of actually having

72:05 to report it myself, I can just simply read

72:06 it to him and see if he agrees with all of

72:07 that.

72:08 Q. Okay. And did you, in fact,

72:09 discuss with Mr. McCombs the questions he

72:10 had been previously asked to confirm that he

72:11 agreed with what was reported there?

72:12 A. Yes, ma'am.

72:13 Q. And did that include asking

72:14 Mr. McCombs whether he had reported having

72:15 had 45 binge episodes in the last three

72:16 months in connection with alcohol use?

72:17 A. Correct. And then if there's any

72:18 extra information, then I will put it myself

72:19 as in the alcohol use to drinks as we

72:20 discussed earlier. So if he gives further

72:21 information than what's recorded, then I

72:22 will add it.

72:23 Q. Okay. And at that point is when

73:01 you recorded that the patient, Mr. McCombs,

73:02 told you he was cutting down after some

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 174 of 320
73:03 education to two to three drinks several

73:04 days a week, correct?

73:05 A. Correct. So since he reported

73:06 something new, I put it in.

73:07 Q. Now, going back to the line that

73:08 says dreams about war experience,

73:09 Afghanistan 2009, 2010, infantry, exposed to

73:10 IED explosion and gun fire, can you tell us

73:11 what that indicates?

73:12 A. So dreams about war experience

73:13 basically is nightmares, and if they are

73:14 related to a traumatic experience, that can

73:15 be one of the symptoms of post-traumatic

73:16 stress disorder. So Mr. McCombs indicated

73:17 his war combat exposure in Afghanistan and

73:18 we went with this as such.

73:19 Q. So Mr. McCombs reported that he

73:20 was having nightmares of his war experience

73:21 in Afghanistan and his service; is that

73:22 correct?

73:23 A. Correct, correct.

74:01 Q. If we go to the next page of

74:02 Exhibit 25, 1372, at the top it says FH. Is

74:03 that family history?

74:04 A. Family history, yes. I'm sorry.

74:05 Now I know it should have been more

74:06 detailed.

74:07 Q. It's pretty detailed. Mother and

74:08 biological father had and have issues with

74:09 alcoholism. Do you see that?

74:10 A. Yes.

74:11 Q. Is that what Mr. McCombs reported

74:12 to you in his consult with you?

74:13 A. Correct.

74:14 Q. What is the significance of family

74:15 history and alcoholism in connection with

74:16 your treatment of a patient?

74:17 A. So the problem with family history

74:18 of substance use in general is twofold, so

74:19 there is the genetic component and there is

74:20 an environmental component.

74:21 So genetic component means some

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 175 of 320
74:22 people do have a tendency to like certain

74:23 substances when they use them or need a lot

75:01 more than normal or an average individual

75:02 will need to get a certain effect because

75:03 they have a natural tolerance. So these are

75:04 all genetic issues that can be passed from

75:05 parents to children.

75:06 The second part is the

75:07 environmental and very important component

75:08 were if a child is raised in a family where

75:09 he sees the parents using a substance, that

75:10 child inadvertently learns that this is a

75:11 normal part of life and they can imitate

75:12 the.

75:13 So we have -- if you have someone

75:14 with a family history of substance abuse

75:15 disorder, we look at these two issues as

75:16 hurdles to treat.

75:17 Q. And did Mr. McCombs report that

75:18 both his biological parents had suffered

75:19 from alcoholism?

75:20 A. Yes.

75:21 Q. Now, Mr. McCombs told us that he

75:22 did not grow up with his biological father.

75:23 Is there, nonetheless, a genetic component

76:01 associated with that even if he did not grow

76:02 up with his father?

76:03 A. Correct. That's why I

76:04 specified in my record, I said biological

76:05 father, so it means even if he's not living

76:06 with him, that he could still carry the

76:07 genes that can affect issues with

76:08 alcoholism.

76:09 Q. And does the reference to

76:10 biological father reflect then that you were

76:11 aware that he had not grown up with his

76:12 father but that his biological father

76:13 nonetheless had alcoholism?

76:14 A. Yes, ma'am.

80:05 - 80:09 Ibrahim, Ahmed (2020-09-23) 0:09

80:05 Q. And under legal, it says DUI Re: [80:05 to 80:10]

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 176 of 320
80:06 charge in 2009. Pltf Obj 401; 403

80:07 A. Yes.

80:08 Q. Where did you obtain that

80:09 information?

80:11 - 80:21 Ibrahim, Ahmed (2020-09-23) 1:31

80:11 Q. Okay. Further down then, it says Re: [80:14 to 80:15]

80:12 A. PTSD, chronic. Pltf Obj 401; 403; MIL C8

80:13 A. Yes.

80:14 Q. Alcohol use D/O, mild.

80:15 A. Yes.

80:16 Q. What does PTSD and chronic

80:17 reflect?

80:18 A. Post-traumatic stress disorder is

80:19 classified as acute and chronic. So

80:20 basically if the symptoms persist beyond six

80:21 months, they score chronic.

81:08 - 82:15 Ibrahim, Ahmed (2020-09-23) 2:31

81:08 Q. And did you reach a conclusion in

81:09 your professional judgment what was causing

81:10 his PTSD?

81:11 A. Yes.

81:12 Q. What did you conclude based on

81:13 your assessment of Mr. McCombs?

81:14 A. That it is related to his combat

81:15 experience in Afghanistan.

81:16 Q. And can you explain what about his

81:17 combat experience in Afghanistan -- what you

81:18 mean by based on his combat experience in

81:19 Afghanistan causing his PTSD?

81:20 A. So in order to reach a diagnosis

81:21 of PTSD, there have to be first a trauma,

81:22 exposure to trauma. And then the second is

81:23 having or meeting certain number of

82:01 questions, certain number of criteria for

82:02 PTSD.

82:03 So he reported the trauma as being

82:04 the combat exposure of Afghanistan 2009 to

82:05 2010. And then he reported the questions --

82:06 the criteria for PTSD that were asked him in

82:07 the PCO score. And based on that, we

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 177 of 320
82:08 reached the diagnosis of PTSD.

82:09 Now, this is, by the way, just to

82:10 clarify something, psychiatrists at the VA

82:11 do not have any access to military records,

82:12 like as in was he actually in combat or not.

82:13 We don't have access to that at all. We

82:14 only depend on subjective information that

82:15 the veteran gives us.

82:20 - 83:23 Ibrahim, Ahmed (2020-09-23) 1:18

82:20 Based on the information Re: [83:04 to 83:23]

82:21 Mr. McCombs reported to you of having been Pltf Obj MIL C8; 401, 403

82:22 exposed to combat in Afghanistan from 2009

82:23 to 2010, you reached a conclusion that he

83:01 was suffering from PTSD from that exposure;

83:02 is that correct?

83:03 A. Yes, ma'am.

83:04 Q. And then you also have an alcohol

83:05 use D/O. What is that?

83:06 A. Disorder.

83:07 Q. And you put mild.

83:08 A. Yes.

83:09 Q. Explain to us what the basis was

83:10 for that conclusion.

83:11 A. So based on the explanation that

83:12 he gave on how alcohol has affected him, so

83:13 he mentioned some interpersonal issues

83:14 related to alcohol. He mentioned drinking

83:15 despite knowing that it might affect his

83:16 high blood pressure.

83:17 So looking at this criteria, he

83:18 mentioned that he had developed tolerance

83:19 before but he actually managed to cut down

83:20 after some education. So looking at --

83:21 looking at the current status, I put him

83:22 with that diagnosis, alcohol use disorder,

83:23 mild.

85:17 - 86:08 Ibrahim, Ahmed (2020-09-23) 1:43

85:17 MS. KARIS: Let's now go to VA

85:18 McCombs, 13 -- I'm sorry. Let me first move

85:19 Exhibit 25 into the record and move now to

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 178 of 320
85:20 VA 1367 through 69, which we'll mark as

85:21 Exhibit 26.

85:22

85:23

86:01 (Exhibit 26 was marked for identification

86:02 and is attached to the original transcript.)

86:03

86:04 MS. KARIS: And this is a note

86:05 dated January 28th of 2016, and the author

86:06 is identified as Ahmed Ibrahim.

86:07 Q. (BY MS. KARIS:) Dr. Ibrahim, do

86:08 you recognize this record, Exhibit 26?

86:14 - 86:22 Ibrahim, Ahmed (2020-09-23) 0:20

86:14 Q. (BY MS. KARIS:) Dr. Ibrahim, can

86:15 you see that? And I know you have the

86:16 records in front of you.

86:17 A. Yes, I was looking at mine. But I

86:18 see that, yes.

86:19 Q. Fair enough. Is this a note that

86:20 you created?

86:21 A. That seems to be my second visit

86:22 with him. Yes.

87:03 - 88:17 Ibrahim, Ahmed (2020-09-23) 2:53

87:03 Q. I failed to ask you, did you Re: [87:20 to 88:17]

87:04 prescribe any meds for Mr. McCombs following Pltf Obj 401; 403; MIL C8

87:05 your first visit with him?

87:06 A. Yes, so he was prescribed an

87:07 antidepressant and something for sleep.

87:08 Q. And what was the antidepressant he

87:09 was described?

87:10 A. Sertraline.

87:11 Q. And what --

87:12 A. I'm in the habit every visit to

87:13 put exactly what I did the visit before, so

87:14 on the record on the screen right now, it

87:15 will state during last visit, the following

87:16 was made, so this is actually what I did on

87:17 the first visit. So I started him on

87:18 Sertraline for antidepressant and Trazodone

87:19 for sleep.

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 179 of 320
87:20 Q. When you prescribe to a patient

87:21 Sertraline or Trazodone --

87:22 A. Trazodone.

87:23 Q. -- is there any effect if a

88:01 patient has alcohol -- uses alcohol when

88:02 using those meds?

88:03 A. We always recommend with

88:04 psychiatric meds a person avoids drinking

88:05 alcohol. There is no absolute severe

88:06 interaction, like what we call no absolute

88:07 contraindication to giving this medications

88:08 in a person who was drinking, but always

88:09 advise, because all psychiatric meds cause

88:10 clinical changes in the brain.

88:11 They can affect alertness or the

88:12 reaction time, so we always recommend not

88:13 mixing the medicine with alcohol and trying

88:14 to avoid alcohol use.

88:15 Q. Okay. So your recommendation is

88:16 to avoid alcohol completely?

88:17 A. Yes.

91:04 - 92:01 Ibrahim, Ahmed (2020-09-23) 1:02

91:04 Q. Did you recommend to Mr. McCombs Re: [91:16 to 92:05] OVERRULED

91:05 at his first visit that he seek therapy -- Pltf Obj 611

91:06 A. Yes.

91:07 Q. -- for his PTSD?

91:08 A. He was referred to the Vet Center.

91:09 Q. And six weeks after you

91:10 recommended it, had Mr. McCombs followed

91:11 your advice in seeking such therapy?

91:12 A. As reported here, he has not

91:13 started going to the Vet Center yet but

91:14 plans to go today, so apparently he told me

91:15 after the visit, he would go.

91:16 Q. Okay. Is the failure to seek

91:17 therapy for somebody who's suffering from

91:18 PTSD a cause for not getting the PTSD under

91:19 control?

91:20 A. Yes.

91:21 Q. And is the failure to follow your

91:22 advice as a psychiatrist of seeking therapy

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 180 of 320
91:23 something that negatively affects a

92:01 patient's mental health condition?

92:04 - 92:05 Ibrahim, Ahmed (2020-09-23) 0:04

92:04 Q. You may answer. Re: [91:16 to 92:05] OVERRULED

92:05 A. Yes. Pltf Obj 611

92:23 - 93:13 Ibrahim, Ahmed (2020-09-23) 1:43

92:23 Q. So did you report to Mr. McCombs Re: [92:23 to 93:13]

93:01 that he was not to drink alcohol in taking Pltf Obj MIL C8; 401; 403

93:02 those meds as reflected in your progress

93:03 notes?

93:04 A. Yes, ma'am.

93:05 Q. And despite you informing

93:06 Mr. McCombs that he was not to drink alcohol

93:07 in connection -- because of those two meds,

93:08 was he nonetheless continuing to drink what

93:09 he said was three drinks a week?

93:10 A. Right. So he had reported

93:11 drinking three drinks a week, which of

93:12 course is a significant decrease. But yes,

93:13 he reported that.

93:14 - 93:22 Ibrahim, Ahmed (2020-09-23) 0:24

93:14 Q. Okay. Did Mr. McCombs also tell

93:15 you that he was actually doing better as a

93:16 result of the treatments that you had given

93:17 him?

93:18 A. Yes.

93:19 Q. And did he report that he had less

93:20 anxiety even over the course of the six

93:21 weeks?

93:22 A. Yes.

93:23 - 94:02 Ibrahim, Ahmed (2020-09-23) 0:06

93:23 Q. Did you see Mr. McCombs a third

94:01 time?

94:02 A. I did.

94:03 - 94:10 Ibrahim, Ahmed (2020-09-23) 0:27

94:03 MS. KARIS: And if we can now pull

94:04 up -- I'm sorry. I move for the admission

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 181 of 320
94:05 of Exhibit 26.

94:06 Now, can we look at Exhibit 27,

94:07 McCombs VA 1340 through 42.

94:08

94:09 (Exhibit 27 was marked for identification

94:10 and is attached to the original transcript.)

94:12 - 94:14 Ibrahim, Ahmed (2020-09-23) 0:07

94:12 Q. (BY MS. KARIS:) Exhibit 27 with a

94:13 date of March 10th of 2016. Do you see

94:14 that?

95:03 - 96:16 Ibrahim, Ahmed (2020-09-23) 2:49

95:03 Q. (BY MS. KARIS:) Okay. Dr. Re: [96:14 to 96:14]

95:04 Ibrahim, this is a note dated March 10th of Pltf Obj MIL C8

95:05 2016. Is this a progress note you created

95:06 in connection with the treatment of

95:07 plaintiff, Dustin McCombs?

95:08 A. Yes, ma'am.

95:09 Q. Could you tell us what, based on

95:10 your notes, what your third visit with

95:11 Mr. McCombs reflected in connection with his

95:12 treatment?

95:13 A. So as usual as my habit, as it is

95:14 my habit, I started by mentioning what we

95:15 did in his plan last time, which was to

95:16 continue his antidepressant but move it to

95:17 nighttime, so QHS means at night because he

95:18 reported feeling tired with it. And may

95:19 increase the Trazodone for sleep since he

95:20 mentioned that it was partially effective,

95:21 and then adding Buspar, buspirone. That's a

95:22 medication to help with the side effects of

95:23 the Sertraline, and then to start going to

96:01 the Vet Center for therapy. So that's the

96:02 beginning.

96:03 And then he reported that he

96:04 continues to comply with his meds, still

96:05 having the same side effects of feeling

96:06 tired and teeth chattering and mild sexual

96:07 side effects.

96:08 Buspirone did help a little in the

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 182 of 320
96:09 beginning but then stopped working.

96:10 Trazodone of this dose helped more with

96:11 sleep. And again, despite the side effects,

96:12 he did not want to change the medicine

96:13 because he felt it was helping. And

96:14 continuing at about three drinks per week,

96:15 and that he actually went ahead and started

96:16 going to the Vet Center.

102:02 - 102:11 Ibrahim, Ahmed (2020-09-23) 1:31

102:02 Q. Was it your professional opinion

102:03 on March 10th of 2016 that Mr. McCombs was

102:04 progressing well --

102:05 A. Yes.

102:06 Q. -- at that time?

102:07 A. Yes.

102:08 Q. And was it your opinion that

102:09 whatever PTSD-related symptoms he was

102:10 having, he was progressing in a normal way?

102:11 A. Yes.

106:04 - 107:13 Ibrahim, Ahmed (2020-09-23) 2:40

106:04 MS. KARIS: Let's look now at Re: [106:04 to 107:13] OVERRULED

106:05 Exhibit 28. Eric, can you pull up VA -- Pltf Obj Incomplete

106:06 McCombs VA 1317 through 319. designation

106:07

106:08 (Exhibit 28 was marked for identification

106:09 and is attached to the original transcript.)

106:10

106:11 Q. (BY MS. KARIS:) In any of these

106:12 visits, Dr. Ibrahim, if Mr. McCombs had

106:13 complained to you about severe ringing in

106:14 his head or hearing excessive and very

106:15 disturbing noises, is that something you

106:16 would typically note in your records?

106:17 A. Yes.

106:18 Q. Did you see any reference anywhere

106:19 in the exhibits we've looked at thus far

106:20 where Mr. McCombs makes any complaints of

106:21 ringing in his ear?

106:22 A. No.

106:23 Q. Do you have any recollection of

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 183 of 320
107:01 Mr. McCombs ever indicating to you that he

107:02 was hearing ringing in his ear while he was

107:03 a patient of yours?

107:04 A. No, ma'am.

107:05 Q. Did Mr. McCombs ever indicate to

107:06 you that the ringing in his rear was what

107:07 was keeping him up at night?

107:08 A. No.

107:09 Q. Did Mr. McCombs ever indicate to

107:10 you that ringing in his ear is what was

107:11 causing him to associate with the traumatic

107:12 events that he had endured in Afghanistan?

107:13 A. No.

107:14 - 108:07 Ibrahim, Ahmed (2020-09-23) 1:49

107:14 Q. Do you ask your patients probing Re: [107:14 to 108:07] SUSTAINED

107:15 questions about what else they are Def Obj Improper counter;

107:16 experiencing physically or emotionally? relevance (401, 402)

107:17 A. To a limited extent. So for

107:18 example, if I'm giving a medication that is

107:19 known to cause physical side effects, I will

107:20 probe these for sure.

107:21 So for example, the Sertraline he

107:22 is receiving is very well known to cause

107:23 stomach upset and sexual side effects, so

108:01 apparently he did mention the sexual side

108:02 effects when I asked him.

108:03 Now, if the patient actually does

108:04 report physical symptoms, in that case, I

108:05 will document it since it happened and I

108:06 will refer them appropriately.

108:07 Q. If a patient -- strike that.

108:08 - 109:11 Ibrahim, Ahmed (2020-09-23) 1:24

108:08 Do you ask the patient what they

108:09 believe is causing them to stay up at night

108:10 or causing the anxiety?

108:11 A. Yes, of course. In his case, it

108:12 was all, in his belief and from his report,

108:13 related to the traumatic experience.

108:14 Q. Did he ever indicate at any time

108:15 while he was in your care that what was

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 184 of 320
108:16 causing him to stay up at night was the

108:17 ringing in his ear?

108:18 A. He did not mention that. I'm

108:19 usually a very good documenter. If he

108:20 mentioned this, I would have put it down.

108:21 Q. Thank you. Let's look at Exhibit

108:22 28. By the way, did he ever mention that he

108:23 had any type of hearing loss or difficulty

109:01 in hearing you at any time?

109:02 A. Not that's documented and I do not

109:03 believe so.

109:04 Q. Exhibit 28. This is your note

109:05 dated April 14th of 2016. Do you recognize

109:06 this document?

109:07 A. Yes, ma'am.

109:08 Q. And is this one of the notes that

109:09 you created following a visit from Dustin

109:10 McCombs on April 14th of 2016?

109:11 A. Yes, ma'am.

110:02 - 110:07 Ibrahim, Ahmed (2020-09-23) 0:20

110:02 Q. Do you know whether Mr. McCombs Re: [110:02 to 110:07]

110:03 had applied for disability benefits while he Pltf Obj MIL C3; MIL C2; 401;

110:04 was in your care for medical -- for 403

110:05 psychiatric services?

110:06 A. I did see notes of him getting

110:07 evaluated for disability benefits, yes.

111:16 - 112:01 Ibrahim, Ahmed (2020-09-23) 0:26

111:16 Q. Based on your observations and Re: [111:16 to 111:20] OVERRULED

111:17 treatment of Mr. McCombs, do you agree that Pltf Obj 611

111:18 he -- his mental health conditions were

111:19 improved as of April 14th of 2016?

111:20 A. Yes, ma'am.

111:21 Q. And was it your opinion that

111:22 Mr. McCombs was doing well clinically at the

111:23 time that you observed him --

112:01 A. Yes, ma'am.

113:02 - 113:13 Ibrahim, Ahmed (2020-09-23) 1:33

113:02 Q. So both he reported and your own Re: [113:06 to 113:13]

113:03 observation was that Mr. McCombs was doing Pltf Obj 401; 403; MIL C8

OVERRULED. MIL PC8 

was not preserved; the 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 185 of 320
113:04 well as of April of 2016, correct?

113:05 A. That is correct.

113:06 Q. And if we go down under R/B/A,

113:07 again, you continued to advise that he not

113:08 use any alcohol while taking his meds,

113:09 correct?

113:10 A. Correct. This is a template, of

113:11 course, so you will find the same wording,

113:12 but this is what we go through on every

113:13 visit.

114:13 - 114:16 Ibrahim, Ahmed (2020-09-23) 0:21

114:13 Q. As of this visit, April of 2016,

114:14 other than teeth chattering, was the patient

114:15 complaining of any other side effects or

114:16 conditions from his PTSD?

114:18 - 115:06 Ibrahim, Ahmed (2020-09-23) 0:29

114:18 Q. And from the medications, I should

114:19 say, prescribed because of the PTSD?

114:20 A. Right. So he reported that the

114:21 medications were working well, side effects

114:22 decreased a lot. He's happy with the

114:23 combination. So based on that, he decided

115:01 to continue.

115:02 And that was that practice in

115:03 PCMHI, once there's no need for me to make

115:04 more medication adjustment, then I simply

115:05 refer them back to primary care to refill

115:06 their meds.

117:02 - 117:10 Ibrahim, Ahmed (2020-09-23) 0:22

117:02 Q. We did. What is auditory/visual Re: [117:02 to 117:10] SUSTAINED

117:03 hallucinations, what is that? Def Obj Improper counter,

117:04 A. Auditory hallucinations is when unnecessary to clarify the

117:05 someone is hearing voices despite no one testimony that follows;

117:06 being present there actually talking to relevance (401, 402)

117:07 them.

117:08 Visual hallucinations is a person

117:09 that is seeing things without the actual

117:10 thing being there.

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 186 of 320
117:11 - 119:21 Ibrahim, Ahmed (2020-09-23) 3:51

117:11 Q. So is it standard practice in Re: [117:11 to 119:21] OVERRULED

117:12 connection with every patient visit that Pltf Obj Incomplete

117:13 Mr. McCombs had for you to ask him about any designation; 401; 403

117:14 auditory issues that he is having?

117:15 A. The way we ask -- yes, the answer

117:16 is yes. The way we ask it is, Do you hear

117:17 any voices when no one is around you or hear

117:18 other voices that other people don't hear.

117:19 Q. Okay. And in each instance, did

117:20 hearing voices, was that a standard question

117:21 you would have asked Mr. McCombs in every

117:22 visit?

117:23 A. Correct, correct.

118:01 Q. In connection with asking him if

118:02 he heard any voices, did Mr. McCombs ever

118:03 indicate, as far as you can tell from your

118:04 records, that he was hearing anything that

118:05 he should not have otherwise been hearing?

118:06 A. Not to me at all. But in the --

118:07 what's called the phone assessment that was

118:08 done eight days before my first visit with

118:09 him, they did mark that he was hearing

118:10 gunshots.

118:11 Now, this is a very common thing

118:12 with post-traumatic stress disorder is

118:13 sometimes when a person gets triggered, they

118:14 can have a moment of flashback where they

118:15 feel like they are back in combat hearing

118:16 the combat or see it even happen. So these

118:17 are called flashbacks. And he indicated

118:18 having these in the assessment. He did not

118:19 indicate it in any of the visits.

118:20 Now, also we need to notice that

118:21 the mental status examination reflects how

118:22 the patient is right now during the time of

118:23 the interview. So if he currently denies

119:01 it, it means at this point in time.

119:02 If he did have them since the last

119:03 visit, it would have been mentioned in the

119:04 subjective part, in the discussion with him.

119:05 Q. Okay. So if he's currently

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 187 of 320
119:06 hearing any auditory noises, such as

119:07 gunshots, you would record it as part of the

119:08 AVH section, correct?

119:09 A. Correct. Yes.

119:10 Q. But if he mentions having any

119:11 problems, similar problems at any other

119:12 time, you would note it in the subjective

119:13 notes that you take, correct?

119:14 A. Very correct, yes.

119:15 Q. And was it your standard practice

119:16 to note any auditory issues that anybody

119:17 complained of as part of your subjective

119:18 notes if one of your patients said they were

119:19 experiencing?

119:20 A. Absolutely, yes. That's a serious

119:21 condition.

120:03 - 120:10 Ibrahim, Ahmed (2020-09-23) 1:45

120:03 (Exhibit 29 was marked for identification

120:04 and is attached to the original transcript.)

120:05

120:06 Q. (BY MS. KARIS:) Exhibit 29,

120:07 McCombs VA 1306 through 1309. Dr. Ibrahim,

120:08 do you recognize Exhibit 29, which is a note

120:09 dated March 17th of 2017?

120:10 A. Yes.

121:08 - 122:23 Ibrahim, Ahmed (2020-09-23) 2:59

121:08 Q. Okay. No problem. Did you see

121:09 Mr. McCombs March 17th of 2017?

121:10 A. Yes, ma'am.

121:11 Q. Okay. And can you tell us what

121:12 the reason was that you saw Mr. McCombs ten

121:13 months -- 11 months after you had last seen

121:14 him?

121:15 A. Yes, so he was referred back to

121:16 primary care and apparently continued

121:17 receiving his refills through there, but

121:18 after 11 months he requested that he sees me

121:19 again, and that was perfectly a normal

121:20 practice. If they request to be evaluated

121:21 again by mental health, that request was

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 188 of 320
121:22 always granted.

121:23 So of course, he had been on the

122:01 same meds for the past 11 months, and the

122:02 recommendation was to continue therapy with

122:03 the Vet Center. But he came complaining

122:04 that he now feels fatigued and having muscle

122:05 pains and swelling in his joints for the

122:06 past one and a half to two months.

122:07 He also complained of the teeth

122:08 chattering, but he said that this had

122:09 resolved, but he started again having sexual

122:10 side effects.

122:11 Discussed with him and found -- I

122:12 had access to see through the VA because the

122:13 medicine was sent by mail, so I had access

122:14 to see when every prescription was sent. So

122:15 I noticed that he had not filled his

122:16 Bupropion, which is a medicine to help with

122:17 the side effects of the Sertraline,

122:18 especially the sexual side effects. And

122:19 what I told him about that, he said he just

122:20 wants a change in his medications. Tried to

122:21 convince him otherwise. Apparently he

122:22 wanted to change them, so we went ahead with

122:23 his wish.

123:01 - 123:23 Ibrahim, Ahmed (2020-09-23) 1:58

123:01 Q. Okay. What was your professional

123:02 advice in March of 2017 as to whether he

123:03 should continue with the medications you had

123:04 previously been prescribed?

123:05 A. Well, looking at the complaints,

123:06 if he had -- he had been taking the medicine

123:07 for basically over a year. Now he complains

123:08 of two sets of problems. One is fatigue,

123:09 muscle pain and swelling in his joints for

123:10 one and a half to two months. We do not

123:11 expect side effects to emerge like that

123:12 after several months after taking the

123:13 medicine. That is probably something

123:14 different. That's one thing.

123:15 And the other thing is the sexual

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 189 of 320
123:16 side effects. Well, the problem is he did

123:17 not fill the Bupropion, which was helping

123:18 with that. So my professional advice would

123:19 be to get back on the same regimen that

123:20 proved effective a year ago and take it

123:21 correctly and then see how you do in four to

123:22 six weeks. That would be the proper thing

123:23 to do.

124:03 - 124:14 Ibrahim, Ahmed (2020-09-23) 0:28

124:03 Q. Did Mr. McCombs follow your Re: [124:10 to 124:16] OVERRULED

124:04 professional advice? Pltf Obj Argumentative;

124:05 A. He preferred not to take the Misstates

124:06 Sertraline anymore because -- and that's

124:07 from the record that I wrote, because he

124:08 talked to other people who took it and did

124:09 not like it either.

124:10 Q. So he was basing his decision, as

124:11 he reported to you at least, on what other

124:12 people, that is nonprofessionals, had told

124:13 him who didn't like the medication; is that

124:14 correct?

124:16 - 124:16 Ibrahim, Ahmed (2020-09-23) 0:03

124:16 A. That's what I documented, yes. Re: [124:10 to 124:16] OVERRULED

Pltf Obj Argumentative;

Misstates

126:16 - 126:20 Ibrahim, Ahmed (2020-09-23) 0:17

126:16 Q. And then similarly, he said he had Re: [126:16 to 127:09] OVERRULED

126:17 started feeling fatigued. In your Pltf Obj Leading

126:18 professional opinion, was the onset of

126:19 fatigue at this time associated with the

126:20 meds that you had recommended he take?

126:22 - 127:09 Ibrahim, Ahmed (2020-09-23) 1:31

126:22 A. He did mention fatigue as a side Re: [126:16 to 127:09] OVERRULED

126:23 effect in the very beginning of treatment a Pltf Obj Leading

127:01 year prior and that had resolved

127:02 spontaneously. Now it's recurring again

127:03 after several months.

127:04 The first time I would agree that

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 190 of 320
127:05 it was related to the medicine. The second

127:06 time, I would make an educated guess it was

127:07 because he stopped the Bupropion, so this is

127:08 a medicine that when you stop, you can

127:09 develop fatigue.

128:23 - 130:07 Ibrahim, Ahmed (2020-09-23) 1:22

128:23 Did Mr. McCombs indicate to you

129:01 that it was him who wanted to stop the

129:02 Sertraline?

129:03 A. Yes, he even ran out of it four

129:04 days prior to the visit.

129:05 Q. Okay. Did any professional that

129:06 you're aware of, based on Mr. McCombs'

129:07 reporting to you, ever recommend that he

129:08 stop the Sertraline?

129:09 A. No, ma'am.

129:10 Q. What was the Sertraline intended

129:11 to do?

129:12 A. That is an antidepressant that was

129:13 intended to help with anxiety and

129:14 depression. Overall, it provides

129:15 improvement in post-traumatic stress

129:16 disorder symptoms.

129:17 Q. Did Mr. McCombs elect to stop

129:18 taking the meds that you had prescribed to

129:19 help with his PTSD?

129:20 A. Yes.

129:21 Q. Now, you had told us you also

129:22 recommended that he go to the Vet Center as

129:23 part of his treatment, correct?

130:01 A. Yes.

130:02 Q. What did Mr. McCombs tell you on

130:03 March 17th of 2017 in connection with his

130:04 visits to the Vet Center?

130:05 A. It appears he says he had not been

130:06 to the Vet Center in a while due to working

130:07 out of town.

130:08 - 130:18 Ibrahim, Ahmed (2020-09-23) 1:32

130:08 Q. Is that contrary to the advice Re: [130:08 to 130:18]

130:09 that you had given Mr. McCombs for how to Pltf Obj MIL C8

OVERRULED. MIL PC8 

was not preserved; the 

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 191 of 320
130:10 treat his PTSD and alcohol abuse symptoms?

130:11 Strike that. Not symptoms, diagnosed --

130:12 A. Yes, bare in mind, if he has been

130:13 going on for several months, I would not

130:14 know what schedule they wanted him to be on,

130:15 is he required to go monthly, every couple

130:16 of months, so I didn't know what they were

130:17 doing, but he indicated he hasn't been there

130:18 in a while.

131:18 - 132:07 Ibrahim, Ahmed (2020-09-23) 1:36

131:18 Q. And then did he indicate that he Re: [131:18 to 132:07]

131:19 was continuing to drink two to three mixed Pltf Obj MIL C8; 401; 403

131:20 drinks a week?

131:21 A. Yes.

131:22 Q. And was that also contrary to the

131:23 advice -- professional advice that you had

132:01 given to Mr. McCombs?

132:02 A. Regarding mixing alcohol with

132:03 medications, yes. Just to be fair, two to

132:04 three drinks a week is not considered beyond

132:05 the limit. It's much less than before. But

132:06 not to be mixed with psychiatric

132:07 medications, for sure.

133:09 - 134:09 Ibrahim, Ahmed (2020-09-23) 1:08

133:09 Q. So in his last visit, Mr. McCombs Re: [133:18 to 133:20] OVERRULED

133:10 indicated to you that he had stopped taking Pltf Obj Misstates

133:11 the Bupropion that you had recommended,

133:12 correct? Re: [133:21 to 133:23]

133:13 A. Yes. Pltf Obj MIL C8; 401; 403

133:14 Q. He had stopped taking the

133:15 Sertraline that you had recommended for his

133:16 PTSD symptoms, correct?

133:17 A. Yes.

133:18 Q. He had stopped going to the Vet

133:19 Center that you had recommended, correct?

133:20 A. Yes.

133:21 Q. And he was continuing to have two Re: [134:01 to 134:04] OVERRULED

133:22 to three drinks a week; is that correct? Pltf Obj 403

133:23 A. Correct.

134:01 Q. All four of those were contrary to

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

OVERRULED. MIL PC8 

was not preserved; the 

MIL was also specific to 

Hacker and Keefer, and 

did not include 

McCombs.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 192 of 320
134:02 the advice that you had given Mr. McCombs,

134:03 correct?

134:04 A. Correct.

134:05 Q. And your advice was based on your

134:06 professional judgment, education and

134:07 experience in treating thousands of vets

134:08 suffering from PTSD, correct?

134:09 A. Yes.

134:10 - 134:23 Ibrahim, Ahmed (2020-09-23) 1:49

134:10 Q. Now, if you look at the next page

134:11 of Exhibit 28 -- 29, excuse me, again under

134:12 ADH, auditory/visual hallucinations, there's

134:13 a denial by the patient, correct,

134:14 Mr. McCombs?

134:15 A. Yes.

134:16 Q. And again in your notes, there's

134:17 no reference anywhere to hearing any ringing

134:18 or any noise disturbances, correct?

134:19 A. Correct.

134:20 Q. And then for his mood, what does

134:21 Mr. McCombs suggest after he's decided to

134:22 take himself off the meds you suggested?

134:23 A. So sometimes I report the mood

135:01 - 135:23 Ibrahim, Ahmed (2020-09-23) 1:18

135:01 exactly as the patient reports. In this

135:02 case, it's a quote, "I'm just always tired

135:03 and I feel my anxiety is high."

135:04 Q. So that's what Mr. McCombs

135:05 reported, correct?

135:06 A. Correct.

135:07 Q. Did Mr. McCombs indicate whether

135:08 anybody had put him on different medicine to

135:09 treat his anxiety when he saw you?

135:10 A. No, ma'am.

135:11 Q. In the prior page where it says

135:12 Sertraline active, and then it notes ran

135:13 out -- and by prior page, I mean 1306 of

135:14 Exhibit 29. What does that indicate, why do

135:15 you write ran out?

135:16 A. So what you see in capital letters

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 193 of 320
135:17 is basically like when I come to the

135:18 medications, I can click something and it

135:19 will pull the active medications for me, but

135:20 it doesn't say if the patient is actually

135:21 taking it or not. So the ran out here is my

135:22 own writing based on what he said earlier

135:23 under the subjective part that he had run

136:01 - 136:07 Ibrahim, Ahmed (2020-09-23) 0:27

136:01 out of the Sertraline four days ago.

136:02 Q. Okay. And then under the

136:03 Trazodone where it says rarely, what does

136:04 that indicate?

136:05 A. So Trazodone was prescribed as

136:06 needed for sleep. And this means he only

136:07 needs it rarely, not all the time.

136:08 - 136:21 Ibrahim, Ahmed (2020-09-23) 1:53

136:08 Q. Okay. If you go to the next page, Re: [136:08 to 137:08]

136:09 again 1307, under A, the middle of the page, Pltf Obj MIL C3; 401; 403

136:10 assessment you told us previously, PTSD,

136:11 chronic, there's a 50 percent SC.

136:12 A. Yes.

136:13 Q. Can you tell us what that

136:14 represents?

136:15 A. So that means he receives a

136:16 service connection, SC, disability of 50

136:17 percent for that diagnosis.

136:18 Q. So Mr. McCombs was receiving VA

136:19 benefits for his PTSD of 50 percent; is that

136:20 correct?

136:21 A. Correct.

136:22 - 137:08 Ibrahim, Ahmed (2020-09-23) 1:30

136:22 Q. Do you know whether Mr. McCombs Re: [136:08 to 137:08]

136:23 stopped all the treatment you recommended Pltf Obj MIL C3; 401; 403

137:01 after he got his VA benefits for PTSD?

137:02 A. So, I mean, based on this, at this

137:03 time when he -- when I saw him, he has

137:04 already received that service connection,

137:05 and then he had just run out of the

137:06 Sertraline four days prior. So apparently,

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 194 of 320
137:07 yes, this happened after he received the

137:08 disability.

137:12 - 137:17 Ibrahim, Ahmed (2020-09-23) 0:23

137:12 Q. Plan. D/C Sertraline per PT, what

137:13 does that mean?

137:14 A. Discontinue the Sertraline per

137:15 patient. Per patient, I put that, it means

137:16 it's not my decision. It's the patient's

137:17 decision.

137:18 - 139:01 Ibrahim, Ahmed (2020-09-23) 2:45

137:18 Q. Okay. Go to the next page, Re: [137:18 to 139:01] OVERRULED

137:19 please, 1308. There's an addendum of March Def Obj Improper counter,

137:20 31st of 2017. Do you see that? testimony re note by Jack

137:21 A. Yes. Morrison unnecessary for

137:22 Q. Read to us -- what does the clarification or completeness;

137:23 addendum indicate to you? hearsay (802); foundation

138:01 A. That's written by Jack Morrison (602)

138:02 who was one of our nurses at the VA. So

138:03 basically in my plan in the prior page,

138:04 since Mr. McCombs did not want to take the

138:05 Sertraline anymore and he was having some

138:06 symptoms that we call it discontinuation

138:07 symptoms from abruptly stopping the

138:08 medicine, so in that case, I give him

138:09 something to help with that. That's called

138:10 Fluoxetine, commonly known as Prozac, to

138:11 help with the discontinuation symptoms.

138:12 And I give him a ten day

138:13 prescription, and my advice to him was this

138:14 will stop the discontinuation symptoms, you

138:15 might actually find it helping in general

138:16 for anxiety. And if you do, if you like it

138:17 and want to be on it, let us know and we can

138:18 send you a prescription.

138:19 So now the addendum came where

138:20 Mr. McCombs called and talked to Jack

138:21 Morrison and said that he liked the

138:22 Flouxetine or the Prozac and he had run out

138:23 of it and he's out of town and he wanted

139:01 more, like a prescription.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 195 of 320
139:02 - 140:08 Ibrahim, Ahmed (2020-09-23) 2:49

139:02 Q. And did you, in fact, prescribe Re: [139:02 to 139:14] OVERRULED

139:03 Prozac for Mr. McCombs following the call to Pltf Obj Incomplete

139:04 your office on March 31st? designation; 401; 403

139:05 A. Correct. So on the next addendum,

139:06 I mentioned here we order a month's supply,

139:07 and return to clinic in one month to see how

139:08 he is doing with that.

139:09 Q. Okay. Did Mr. McCombs ever come

139:10 back after you asked him to return to the

139:11 clinic in one month to see how he was doing

139:12 on the Prozac?

139:13 A. I do not have any record of him

139:14 returning back, no.

139:15 Q. Okay. Did Mr. McCombs ever

139:16 indicate to you whether he was seeking

139:17 psychological, psychiatric assistance from

139:18 any other professional in connection with

139:19 his PTSD after he discontinued his treatment

139:20 with you?

139:21 A. No, ma'am. I do not have any

139:22 communication beyond that time.

139:23 Q. Okay. Is it correct based on the

140:01 VA's policy that Mr. McCombs could have

140:02 returned to you for at least one more visit

140:03 to follow up on how he was doing on the

140:04 Prozac and in general?

140:05 A. That is correct.

140:06 Q. Mr. McCombs did not do that,

140:07 correct?

140:08 A. No, ma'am.

143:22 - 144:23 Ibrahim, Ahmed (2020-09-23) 1:08

143:22 Q. In connection with Mr. McCombs' Re: [143:22 to 145:08] SUSTAINED

143:23 treatment, the initial assessment reported Pltf Obj 401; 403; Cumulative

144:01 that he said, Mr. McCombs said, that he had (asked and answered)

144:02 some auditory hallucinations, correct?

144:03 A. Uh-huh, yes.

144:04 Q. And that those auditory

144:05 hallucinations were him hearing gunshots,

144:06 correct?

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 196 of 320
144:07 A. Correct.

144:08 Q. And you then, based on that

144:09 preliminary assessment, saw him and did

144:10 multiple evaluations in your office,

144:11 correct, of Mr. McCombs?

144:12 A. Yes.

144:13 Q. And in each of those, you look at

144:14 both whether he is at the time he's visiting

144:15 with you incurring or experiencing any

144:16 auditory hallucinations, correct?

144:17 A. Yes.

144:18 Q. And in no circumstance was he

144:19 experiencing auditory hallucinations during

144:20 your visit, correct?

144:21 A. Correct.

144:22 Q. But you also asked whether he's

144:23 experienced any auditory hallucinations at

145:01 - 145:08 Ibrahim, Ahmed (2020-09-23) 0:27

145:01 any other time even when he's not in your Re: [143:22 to 145:08] SUSTAINED

145:02 office, correct? Pltf Obj 401; 403; Cumulative

145:03 A. Correct. (asked and answered)

145:04 Q. And Mr. McCombs never reported any

145:05 auditory hallucinations or problems with

145:06 gunshots when he was assessed by you,

145:07 correct?

145:08 A. Correct.

145:14 - 146:15 Ibrahim, Ahmed (2020-09-23) 1:11

145:14 Exhibit 29, you noted that

145:15 Mr. McCombs reported he was rarely taking

145:16 Trazodone, correct?

145:17 A. Yes.

145:18 Q. And Trazodone was intended to help

145:19 him with any sleep issues, correct?

145:20 A. Correct.

145:21 Q. It's a way to help somebody get to

145:22 sleep if they're having problems?

145:23 A. Yes.

146:01 Q. Is it a drug that should be taken

146:02 as needed by the patient?

146:03 A. Yes.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 197 of 320
146:04 Q. And so if a patient thinks they

146:05 need to take Trazodone to help them sleep,

146:06 then they take it, correct?

146:07 A. Correct.

146:08 Q. And what Mr. McCombs reported to

146:09 you at his last visit is that he was only

146:10 rarely taking it, correct?

146:11 A. Correct.

146:12 Q. And he was only rarely taking it

146:13 because he was not finding that he needed

146:14 the Trazodone on any more frequent basis,

146:15 correct?

146:18 - 146:20 Ibrahim, Ahmed (2020-09-23) 0:08

146:18 A. That's correct. If he had

146:19 mentioned any other reason for rarely taking

146:20 it, I would have documented that.

146:21 - 147:05 Ibrahim, Ahmed (2020-09-23) 0:17

146:21 Q. Okay. Did Mr. McCombs -- strike

146:22 that.

146:23 In that visit, Mr. McCombs

147:01 referenced to you or explained to you

147:02 problems he was having with the other two

147:03 meds or he thought he was having with the

147:04 other two meds you had prescribed, correct?

147:05 A. Yes.

147:06 - 147:10 Ibrahim, Ahmed (2020-09-23) 0:15

147:06 Q. Did he ever mention to you having

147:07 any problem with the Trazodone that were

147:08 preventing him from taking the meds?

147:09 MR. GARRISON: Object to the form.

147:10 A. No.

148:05 - 148:10 Ibrahim, Ahmed (2020-09-23) 0:13

148:05 Q. Did Mr. McCombs ever report to you

148:06 that he was continuing to have sleep-related

148:07 problems but, nonetheless, not taking

148:08 medication?

148:09 MR. GARRISON: Object to the form.

148:10 A. No.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 198 of 320
148:18 - 148:21 Ibrahim, Ahmed (2020-09-23) 0:05

148:18 Q. Good. My name is Lou Garrison, Re: [148:18 to 148:21] SUSTAINED

148:19 and I'm one of the lawyers that talked to Pltf Obj 401; 403

148:20 you on the phone the other day.

148:21 A. Yes.

182:01 - 182:02 Ibrahim, Ahmed (2020-09-23) 0:00

182:01 (Exhibit 30 was marked for identification

182:02 and is attached to the original transcript.)

183:07 - 183:23 Ibrahim, Ahmed (2020-09-23) 1:48

183:07 Q. Okay. Dr. Ibrahim, I have only a Re: [183:07 to 184:03]

183:08 couple of follow-up questions for you. Pltf Obj Hearsay, 403,

183:09 Starting with Exhibit 30 here that you were Cumulative

183:10 asked about, you reviewed this record you

183:11 said in connection with treating

183:12 Mr. McCombs, correct?

183:13 A. Yes.

183:14 Q. Now, let's look at what

183:15 Mr. McCombs said when he was getting

183:16 evaluated. The veteran reported a history

183:17 of military noise exposure, which included

183:18 machine gun fire and IED. Hearing

183:19 protection was only worn during training and

183:20 not in combat. Do you see that?

183:21 A. Yes.

183:22 Q. Mr. McCombs suffered from the

183:23 tinnitus that was referenced there during an

184:01 - 184:03 Ibrahim, Ahmed (2020-09-23) 0:09

184:01 IED explosion as reported by him, correct? Re: [183:07 to 184:03]

184:02 A. As far as I see from these Pltf Obj Hearsay, 403,

184:03 records, yes. Cumulative

190:02 - 190:08 Ibrahim, Ahmed (2020-09-23) 0:23

190:02 Q. Apologies that you had to sit Re: [190:02 to 190:08] SUSTAINED

190:03 through that. Is it correct that the entire Pltf Obj 403, Cumulative

190:04 time that you treated Mr. McCombs, you never

190:05 diagnosed him with any connection between

190:06 his difficulty sleeping and any tinnitus

190:07 condition, correct?

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 199 of 320
190:08 A. Yes, I have not done that.

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 200 of 320
Preserved Objections Previous Rulings New Objections Rulings

7:17 - 7:19 Love, Tiundra (2020-10-02) 0:06

7:17 Q. Good morning, Doctor. Could

7:18 you please state your name for the record?

7:19 A. Tiundra Love.

15:16 - 16:21 Love, Tiundra (2020-10-02) 1:09

15:16 Q. Great.

15:17 Dr. Love, could you just give

15:18 us a little bit of a background, understanding

15:19 of your educational history from after high

15:20 school all the way through medical school?

15:21 A. So high school -- after

15:22 high -- after high school, I attended the

15:23 University of Kentucky, got a degree in --

15:24 Bachelor of Science in Nursing. After that, I

15:25 have a Master of Science in Nursing from the

16:01 University of Tennessee at Chattanooga. I have

16:02 an osteopathic degree from the Virgi- --

16:03 Virginia College of Osteopathic Medicine,

16:04 Virginia Tech.

16:05 Q. And when did you graduate the

16:06 Virginia College Osteopathic Medicine program?

16:07 A. 2009.

16:08 Q. And did you have to take a

16:09 board after that?

16:10 A. Yes. Yes.

16:11 Q. When did you pass your boards?

16:12 A. August the 22nd, 2012. 22nd

16:13 -- August 22nd or 24th. But it was August 2- --

16:14 2012.

16:15 Q. Okay. And could you help me

16:16 understand the difference between a doctor of

16:17 osteopathy, which I understand you are, and a

16:18 doctor of medicine?

16:19 A. I can -- they can do -- I can

16:20 do everything they can do. They can't do

16:21 everything I do.

17:01 - 17:03 Love, Tiundra (2020-10-02) 0:06

17:01 Q. Are you able to prescribe

17:02 medicine?

17:03 A. Yes.

17:17 - 18:03 Love, Tiundra (2020-10-02) 0:26

17:17 Q. So from approximately 2014

17:18 through August 2019, you were a doctor of

17:19 osteopathy at the Chattanooga VA?

17:20 A. Uh-huh.

17:21 Q. And prior to that in 2013,

Designations

Page 1 of 18

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 201 of 320
17:22 where did you work?

17:23 A. The primary care office. It

17:24 was -- it was with Sky Ridge Medical, but it was

17:25 with my ^ woodmont medical services.

18:01 Q. And what type of doctor were

18:02 you at that point?

18:03 A. Primary care.

18:07 - 18:19 Love, Tiundra (2020-10-02) 1:31

18:07 Q. Have you always been a primary

18:08 care doctor?

18:09 A. Internal medicine,

18:10 board-certified since 2012.

18:11 Q. Do you have any other board

18:12 certifications?

18:13 A. Those are the only three.

18:14 Q. So could you list those three

18:15 for me one more time?

18:16 A. I was certif- -- my board

18:17 certification in Internal Medicine. I have a --

18:18 I'm certified as a Family Nurse Practitioner,

18:19 and then I'm certified as a Registered Nurse.

20:20 - 20:23 Love, Tiundra (2020-10-02) 0:07

20:20 Q. So for approximately five

20:21 years, you were at the Chattanooga VA; is that

20:22 right?

20:23 A. Uh-huh.

25:09 - 25:20 Love, Tiundra (2020-10-02) 1:33

25:09 Q. So is it fair to say that you

25:10 do not maintain, nor does the Chattanooga VA

25:11 maintain, to your knowledge, a separate set of

25:12 records other than the ones in the CPRS system?

25:13 A. That's correct.

25:14 Q. At any time during your period

25:15 at the Chattanooga VA, did you ever see a

25:16 separate set of records other than the -- on any

25:17 patient other than what's in the CPRS system?

25:18 A. It had to be in the CPRS

25:19 system. If there was outside records, they were

25:20 scanned into the CPRS.

37:17 - 38:06 Love, Tiundra (2020-10-02) 1:56

37:17 Q. I'd like to just generally

37:18 talk again about the Chattanooga VA. What

37:19 treatment options were available to treat PTSD

37:20 at the Chattanooga VA during your tenure there?

37:21 A. I would really defer that to

37:22 the psychiatrists, because they really manage

Page 2 of 18

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 202 of 320
37:23 the PTSD patients.

37:24 Q. You -- you don't treat PTSD;

37:25 you never have?

38:01 A. Never have. However, the

38:02 medicines that they're on, making sure they

38:03 aren't affecting them -- if they make reference

38:04 or I see that there's something wrong, then I

38:05 make a reconsult or an appointment for them to

38:06 see the Mental Health provider.

39:20 - 40:05 Love, Tiundra (2020-10-02) 1:30

39:20 Q. But it's -- am I -- am I

39:21 correct when I say that if you had a patient

39:22 that was experiencing any type of PTSD symptoms

39:23 and you believed that they would benefit from

39:24 further treatment of that, you would always

39:25 consult or refer to Mental Health?

40:01 A. Right. That's correct.

40:02 Q. You wouldn't try to treat them

40:03 on your own?

40:04 A. That's -- I would not treat

40:05 them on my own.

40:24 - 42:06 Love, Tiundra (2020-10-02) 2:30

40:24 Q. What treatment options are

40:25 available for the treatment of tinnitus at the

41:01 Chattanooga VA?

41:02 A. So tinnitus is ringing of the

41:03 ears, and it depends on the extent of that. You

41:04 know, you send the patient to the -- what --

41:05 you've got to figure out what the cause is

41:06 first. Because there's several different

41:07 causes. And from a stan- -- a medical

41:08 standpoint. And then referring them to an

41:09 audiologist to make sure that there's, you know,

41:10 any hearing loss involved with it. So then I

41:11 would refer them to the audiologist as well.

41:12 So there's some things

41:13 involved. Depends on what I think that the

41:14 cause of the tinnitus is. And many times I

41:15 refer them to Audiology anyway, because, based

41:16 on where they've -- they've been deployed in the

41:17 military, what they've been exposed to, they

41:18 will get a consult to Audiology from -- you

41:19 know, as -- I would do that.

41:20 Q. And so is your standard

41:21 practice that if one of your patients were to

41:22 complain of tinnitus or ringing of the ears or

41:23 something similar to tinnitus, and you believed

41:24 that they would benefit from some sort of

Page 3 of 18

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 203 of 320
41:25 treatment, you would refer them to Audiology?

42:01 A. Yes. I would also work them

42:02 up if I need to. Ringing of the ears has

42:03 several different causes. And, you know, an ear

42:04 infection may not require a referral to the

42:05 audiologist, an acute ear infection from

42:06 sinuses, for example.

48:15 - 49:06 Love, Tiundra (2020-10-02) 1:03

48:15 Q. Okay. And the records that

48:16 you just reviewed, Doctor, does it appear that

48:17 you saw Mr. Dustin McCombs four times?

48:18 A. Yes, that's what it appears to

48:19 be, yes, from these notes.

48:20 Q. And the first visit was

48:21 October 23rd of 2015. Does that sound right?

48:22 A. Yes.

48:23 Q. And the second visit was

48:24 November 18 of 2015?

48:25 A. Yes.

49:01 Q. And the third visit was April

49:02 6th of 2016?

49:03 A. Yes.

49:04 Q. And the fourth visit was

49:05 January 24th, 2018; is that correct?

49:06 A. Yes.

49:18 - 51:02 Love, Tiundra (2020-10-02) 3:41

49:18 Q. -- as well.

49:19 So, Doctor, do you have in

49:20 front of you medical records related to Dustin

49:21 McCombs?

49:22 A. Yes.

49:23 Q. And what type of medical

49:24 record is this, ma'am?

49:25 A. It's a -- an Audiology CNP

50:01 Examination consult.

50:02 Q. And what is the date of it?

50:03 A. November 7th, 2015.

50:04 Q. And this was approximately two

50:05 weeks after the first time you saw

50:06 Mr. Dustin McCombs; is that correct?

50:07 A. Yes. Yes.

50:08 Q. Okay. And then you also saw

50:09 Mr. Dustin McCombs approximately nine days after

50:10 this November 7, 2015 Audiology CNP; is that

50:11 correct?

50:12 A. Which page was that on?

50:13 Q. That would have been the

50:14 November 18th, 2015 visit.

Page 4 of 18

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50:15 A. (Witness reviews documents.)

50:16 Q. Doctor, your -- your

50:17 November 18th, 2015 visit is on page 1395, if

50:18 that would help you locate it.

50:19 A. Oh, yes.

50:20 Q. Okay. Let me just ask you the

50:21 question one more time, now that you have the

50:22 record in front of you.

50:23 Doctor, is it true that

50:24 approximately nine days after the November 7th,

50:25 2015 Audiology CNP, that you saw Mr. Dustin

51:01 McCombs on November 18th, 2015?

51:02 A. Yes.

53:25 - 54:10 Love, Tiundra (2020-10-02) 0:27

53:25 Q. Okay. Do you have any reason

54:01 to dispute that Mr. Dustin McCombs on November 7

54:02 of 2015 was diagnosed by the audiology

54:03 department in the Chattanooga VA with tinnitus?

54:04 A. If I --

54:05 MR. HILL: Object to form of

54:06 the question.

54:07 THE WITNESS: If I did, I

54:08 would have kind of stated in my note when he

54:09 came in. I -- I just recall that it was a big

54:10 issue with his blood pressure.

54:17 - 55:19 Love, Tiundra (2020-10-02) 1:21

54:17 Q. So let me just make sure I

54:18 understand what you're saying. Are you saying

54:19 that if there -- if you had any reason to

54:20 dispute the diagnosis of tinnitus on November 7

54:21 of 2015, you would have made a narrative of that

54:22 in your November 18, 2015 visit?

54:23 A. But I don't recall that I

54:24 would have had a dispute with that because this

54:25 is an Audiology note that he had been worked up

55:01 on. So I was not addressing the tinnitus at the

55:02 time. I don't recall even seeing the note about

55:03 the tinnitus. I was focused on his blood

55:04 pressure.

55:05 Q. Yes, ma'am. And I -- I

55:06 understand that. And I'm certainly not meaning

55:07 to fault you or -- or anything about your --

55:08 your visit with Mr. McCombs.

55:09 I'm just trying to understand

55:10 whether if you had any reason to dispute his

55:11 diagnosis of tinnitus, would you have made that

55:12 notation in your narrative of his records on

55:13 November 18, 2015?

Page 5 of 18

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55:14 MR. HILL: Object to form of

55:15 the question.

55:16 THE WITNESS: I can't say that

55:17 because I -- this is two totally different --

55:18 separate things. This is -- he was seeing a

55:19 specialist, which was the audiologist.

60:14 - 60:16 Love, Tiundra (2020-10-02) 0:23

60:14 Q. I'd like to go to your -- your

60:15 first visit of Mr. McCombs, which would be

60:16 October 23rd, 2015, correct?

60:23 - 61:01 Love, Tiundra (2020-10-02) 0:09

60:23 Q. Was this the first time that

60:24 you saw Mr. Dustin McCombs?

60:25 A. According to the notes, it

61:01 states that I did.

64:06 - 64:20 Love, Tiundra (2020-10-02) 0:23

64:06 You would have asked each and

64:07 every question listed here? For example, you

64:08 would have asked whether he had weight change?

64:09 A. Uh-huh.

64:10 Q. Fatigue?

64:11 A. Uh-huh.

64:12 Q. Weakness?

64:13 A. Uh-huh.

64:14 Q. Fever?

64:15 A. Uh-huh.

64:16 Q. Chills?

64:17 A. Uh-huh.

64:18 Q. You would have done that for

64:19 each and every one of these things?

64:20 A. For a new patient, yes.

77:23 - 78:04 Love, Tiundra (2020-10-02) 0:23

77:23 Q. Okay. What does the "HPI"

77:24 stand for?

77:25 A. History of Present Illness.

78:01 Q. So is that something that you

78:02 ask the patient -- and in this particular case,

78:03 Mr. McCombs -- about his history of the -- any

78:04 present problems that he might have?

78:07 - 78:07 Love, Tiundra (2020-10-02) 0:01

78:07 THE WITNESS: Yes.

79:18 - 79:22 Love, Tiundra (2020-10-02) 0:09

79:18 Q. Sure. And so is it your

79:19 practice that you would then try to help him

Page 6 of 18

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79:20 bring those things to light that they may have

79:21 concerns about?

79:22 A. Yes.

86:09 - 86:24 Love, Tiundra (2020-10-02) 1:42

86:09 Q. Okay. And below that, where Re: [86:09 to 86:24]

86:10 it says: "Alcohol, occasional," what -- how Pltf Obj 401, 403, MIL C8

86:11 often is occasional in your experience --

86:12 experience examining patients, when you ask

86:13 them?

86:14 A. Well, it depends on the

86:15 individual. Sometimes they can tip a -- tip --

86:16 they can kind of tempify [sic], you know, how

86:17 much they're drinking, every now and then, every

86:18 blue moon, a beer.

86:19 But if they tell me, when I

86:20 ask them, is it one a week, one a day, two,

86:21 three a day -- then I quantify. But he was

86:22 telling me at that time that it was just an

86:23 occasional on the weekends if something -- if

86:24 there was a game going on.

88:22 - 91:13 Love, Tiundra (2020-10-02) 3:48

88:22 But in -- in general, in -- in Re: [88:22 to 90:13] OVERRULED

88:23 your practice when you were at the VA clinic Pltf Obj 401, 403, Incomplete

88:24 there in Chattanooga, did they -- did the nurses Designation

88:25 follow this procedure, that before you saw the

89:01 patient or even at times when you didn't see the

89:02 patient?

89:03 A. They didn't go to the complete

89:04 Ten-Point Review of Systems, but they also, you

89:05 know, asked the patient what they were here for,

89:06 any concerns, what they need to see the doctor

89:07 for. And I spend on the details.

89:08 And when I do the Review of

89:09 Systems, not only do I ask them when we're in

89:10 the room sitting down for a few minutes as a new

89:11 patient, but it's also when I put them on the

89:12 exam table and I'm looking at them and I'm

89:13 checking them from head-to-toe, do I also expand

89:14 on those questions here, any chest pains,

89:15 particularly, for instance; any chest pain,

89:16 shortness of breath, palpitations, things of

89:17 that nature. And I just follow the system and

89:18 go all the way down.

89:19 And it's easy, too, because

89:20 they may have missed it when I asked them the

89:21 first time, but they may remember something the

89:22 second time when I'm actually doing the exam.

89:23 Or if I see something and I say: "Hey, there's

OVERRULED. MIL PC8 was not 

preserved; the MIL was also specific 

to Hacker and Keefer, and did not 

include McCombs.

Page 7 of 18

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 207 of 320
89:24 something -- you know, you have a scar here.

89:25 What is that related to?"

90:01 Then, "Oh, yeah. I did have

90:02 this. I did have that problem, but I don't have

90:03 it now. And I did have a procedure."

90:04 So this is what the Review of

90:05 Systems comes from for me in my practice and how

90:06 I do it.

90:07 Q. And I think this may have been

90:08 mentioned earlier, but did you say that in doing

90:09 that Review of Systems -- Systems, that you

90:10 would actually talk to the patient and ask

90:11 questions about hearing in particular?

90:12 A. Uh-huh. Because I look in

90:13 their ears.

90:14 Q. And do you ask them about

90:15 whether or not they're having any ringing in

90:16 their ears or any tinnitus?

90:17 MR. BARTLETT: Object to form.

90:18 THE WITNESS: Yes, sir, I do.

90:19 But it's at that -- not at that specific --

90:20 specific time. When I look in the ear in

90:21 particular, if there's some abnormality of the

90:22 ear, having problems hearing, you know,

90:23 discharge, pain, so forth. At that particular

90:24 time.

90:25 BY MR. HILL:

91:01 Q. At that particular time on

91:02 that review of his systems, under ears, where it

91:03 says: Denies hearing loss, denied vertigo,

91:04 discharge, earache, that was all put into that

91:05 tem- -- template for Mr. McCombs, because you

91:06 covered those items with him and he denied

91:07 having any of those?

91:08 A. At that time, he did. He was

91:09 a new patient. Have any concerns, any pain in

91:10 your ear, hearing loss? I didn't ask him did he

91:11 have a history of --

91:12 Q. I'm sorry?

91:13 A. -- the systems.

91:21 - 92:01 Love, Tiundra (2020-10-02) 0:19

91:21 Q. Those -- did those questions

91:22 that you asked during that review include

91:23 questions about a patient's ability to sleep or

91:24 inability to sleep?

91:25 A. I didn't on this -- on this

92:01 template.

93:12 - 94:21 Love, Tiundra (2020-10-02) 2:38

Page 8 of 18

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 208 of 320
93:12 So you've got six items listed Re: [93:12 to 94:21]

93:13 there, correct? Can you walk us through each Pltf Obj 401, 403, MIL C8

93:14 one of those items under your Impression and

93:15 what your Plan was?

93:16 A. So he presented from the -- I

93:17 concluded from the physical exam of what I --

93:18 what I saw in his lab work, he had elevated

93:19 calcium at the time of 10.8 or 10.9 from his

93:20 labs. I wanted to repeat that to make sure

93:21 there was no problems. And so I did further

93:22 testing for that.

93:23 Then, as we previously

93:24 discussed, the abnormal kidney function, to make

93:25 sure that he wasn't having any kind of damage or

94:01 starting to have damage, so I did further

94:02 testing. And then I was going to repeat them in

94:03 three months.

94:04 And then I discussed with him

94:05 not to take these over-the-counter -- this

94:06 creatinine [sic] stuff that they -- that they

94:07 take.

94:08 At the time, his blood

94:09 pressure was mildly elevated; however, he didn't

94:10 have a history of hypertension, so that's why

94:11 his past medical history was none. And I said I

94:12 would continue to monitor that.

94:13 I did put alcohol dependency,

94:14 because he said occasional. But most of the

94:15 times when I get a -- and they don't clarify

94:16 with me. Just taking care of veterans and --

94:17 and understanding what they've gone through, he

94:18 was actually drinking more than what he said.

94:19 And so I put alcohol dependency, discussed his

94:20 alcohol issue with him, and then I sent him to

94:21 get some help about that.

100:16 - 100:22 Love, Tiundra (2020-10-02) 0:13

100:16 Q. Okay. Did you recommend that Re: [100:16 to 100:22]

100:17 he stop drinking altogether? Pltf Obj 401, 403, MIL C8

100:18 A. Yes. That's my

100:19 recommendation. It says cessation, uh-huh. And

100:20 smoking, too.

100:21 Q. Okay. Smoking, too?

100:22 A. Uh-huh.

109:25 - 110:01 Love, Tiundra (2020-10-02) 0:06

109:25 Q. Okay. So -- so what was his Re: [109:25 to 110:16] OVERRULED

110:01 reported blood pressure and pulse -- Pltf Obj 401, 403

110:04 - 110:16 Love, Tiundra (2020-10-02) 1:36

OVERRULED. MIL PC8 was not 

preserved; the MIL was also specific 

to Hacker and Keefer, and did not 

include McCombs.

OVERRULED. MIL PC8 was not 

preserved; the MIL was also specific 

to Hacker and Keefer, and did not 

include McCombs.

Page 9 of 18

Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 209 of 320
110:04 A. Or: The veteran said that his Re: [109:25 to 110:16] OVERRULED

110:05 blood pressure and pulse on Thursday night. Pltf Obj 401, 403

110:06 Evidently he must have had a

110:07 blood pressure machine. And he said it was 160

110:08 to 170, and his BP was extremely high, 197/150,

110:09 so he went to the Erlanger ER.

110:10 Q. And what did he indicate that

110:11 they did for him at the ER?

110:12 A. When he got to the ER, it

110:13 stated his blood pressure was 150 over 114, and

110:14 they sent him home without medication and told

110:15 him to follow up with his PCP. Said he feels

110:16 weird and so forth.

111:15 - 112:17 Love, Tiundra (2020-10-02) 1:16

111:15 Q. -- do you see that, it says: Re: [111:15 to 112:17] OVERRULED

111:16 HPI? Pltf Obj 401, 403

111:17 A. Yes.

111:18 Q. "Headache: New or worsening."

111:19 What does that mean?

111:20 A. So that's generated questions

111:21 to ask when the person calls into the phone line

111:22 and the nurse asks these questions. And

111:23 evidently, he had a positive headache, so he was

111:24 -- and he stated that he was feeling weird and

111:25 dizzy at the time, and he had had a headache

112:01 since Saturday morning. So he told that nurse

112:02 that he was positive for headaches and it was

112:03 new and it was getting worse. And then past

112:04 medical history of hypertension.

112:05 However, he had an elevated

112:06 blood pressure, and so -- and I guess they -- I

112:07 don't know if this is the sec- -- second time

112:08 when he went to the ER and they said he had

112:09 hypertension and sent him home and told him to

112:10 follow up with his PCP.

112:11 So he called the nurse's line,

112:12 looks like, again, and talked to Ms. Canterbury.

112:13 Q. Okay. And did -- are these

112:14 symptoms consistent with a diagnosis of

112:15 hypertension?

112:16 A. Having elevated blood

112:17 pressure, yes. And more than --

113:22 - 114:25 Love, Tiundra (2020-10-02) 1:27

113:22 Q. Okay. So can you tell us what Re: [113:22 to 115:05]

113:23 that record is for? What happened to lead to Pltf Obj 401, 403, MIL C8

113:24 that record?

113:25 A. Well, evidently, the patient

114:01 had been concerned about his blood pressure. He

OVERRULED. MIL PC8 was not 

preserved; the MIL was also specific 

to Hacker and Keefer, and did not 

include McCombs.

Page 10 of 18

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114:02 was checking it at home because, remember, he

114:03 was elevated at the office on the 23rd of

114:04 October. And so we sent him home with a blood

114:05 pressure, and he was checking his blood

114:06 pressure. So evidently it was high.

114:07 He called the nurse's line.

114:08 It looks like he called my nurse in the clinic

114:09 and told her that he had went to the ER and his

114:10 blood pressure was up. And then he states that

114:11 it was skyrocketing, and he thought he was going

114:12 to have a stroke.

114:13 And at this time, Erlanger

114:14 East -- so he must have went to a different

114:15 Erlanger ER, and they got his blood pressure

114:16 down and sent him home.

114:17 Said at the time he was having

114:18 symptoms with -- his blood pressure was elevated

114:19 and chest pains and shortness of breath. And he

114:20 had stopped taking that over-the-counter that I

114:21 had advised him to. He had denied to her that

114:22 he had stopped drinking. And that he had -- was

114:23 not taking any energy drinks, according to Nurse

114:24 Besh. On this it says it was explained to him

114:25 to go to the drugstore on --

115:03 - 115:05 Love, Tiundra (2020-10-02) 0:05

115:03 THE WITNESS: To get him a Re: [113:22 to 115:05]

115:04 blood pressure and check his blood pressure Pltf Obj 401, 403, MIL C8

115:05 twice daily.

115:17 - 116:05 Love, Tiundra (2020-10-02) 1:30

115:17 Q. Did Mr. McCombs report to Re: [115:17 to 116:05] SUSTAINED

115:18 Nurse Besh that he took one of his friend's Pltf Obj 401, 403

115:19 Ativan?

115:20 A. That's what she documented,

115:21 yes.

115:22 Q. What is Ativan?

115:23 A. Something for your nerves.

115:24 It's anti- -- it's benzodiazapine. It's taken

115:25 for anxiety.

116:01 Q. What effect, if any, does that

116:02 have on high blood pressure?

116:03 A. Well, he probably was taking

116:04 it because he was feeling anxious because his

116:05 blood pressure was high.

116:18 - 116:21 Love, Tiundra (2020-10-02) 0:08

116:18 Q. Okay. So Ms. Besh notes that Re: [116:18 to 116:21] SUSTAINED

116:19 she instructed him not to take other people's Pltf Obj 401, 403

116:20 medication, correct?

OVERRULED. MIL PC8 was not 

preserved; the MIL was also specific 

to Hacker and Keefer, and did not 

include McCombs.

Page 11 of 18

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116:21 A. That is correct.

118:25 - 119:15 Love, Tiundra (2020-10-02) 1:52

118:25 Q. Can you tell us what that Re: [118:25 to 119:15] OVERRULED

119:01 record reveals about his blood pressure and his Pltf Obj 401, 403, MIL C8

119:02 condition at the time of that visit?

119:03 A. According to what I wrote --

119:04 and the records that I have from Erlanger

119:05 East -- was that his blood pressure was only 140

119:06 over 92. But he talked about his chest

119:07 tightness and stated his blood pressure had been

119:08 high. And he did not do the blood pressure log,

119:09 as he stated he forgot. He did stop the

119:10 creatine as I advised him. He was not on any

119:11 additional over-the-counters, herbs or

119:12 recreational drugs; however, now it's revealed,

119:13 because he was with his mother at this time,

119:14 that he was drinking three hard liquor drinks

119:15 per day.

119:25 - 120:02 Love, Tiundra (2020-10-02) 0:11

119:25 Q. And -- and in your experience, Re: [119:25 to 120:08] OVERRULED

120:01 is that a bad sign, to be drinking three hard Pltf Obj 401, 403, MIL C8

120:02 liquor drinks a day?

120:08 - 120:08 Love, Tiundra (2020-10-02) 0:01

120:08 A. Yes, it is. Re: [119:25 to 120:08] OVERRULED

Pltf Obj 401, 403, MIL C8

121:14 - 121:20 Love, Tiundra (2020-10-02) 0:18

121:14 Q. So is it a fair statement to Re: [121:14 to 121:24] SUSTAINED

121:15 say that even though he had reported that he was Pltf Obj 401, 403

121:16 not taking creatine or other over-the-counter

121:17 medications, you still were concerned enough

121:18 that you counseled him again that those could be

121:19 harmful?

121:20 A. Uh-huh.

121:23 - 121:24 Love, Tiundra (2020-10-02) 0:02

121:23 THE WITNESS: Yes, that's Re: [121:14 to 121:24] SUSTAINED

121:24 correct. Pltf Obj 401, 403

122:08 - 123:06 Love, Tiundra (2020-10-02) 1:58

122:08 Q. What -- what does PMH stand Re: [122:08 to 123:06] OVERRULED

122:09 for again? Past medical history? Pltf Obj 401, 403, MIL C8

122:10 A. Yes.

122:11 Q. And then "PSH left knee" --

122:12 that's surgical history correct?

122:13 A. Yes.

122:14 Q. "Left knee arthroscopic

Page 12 of 18

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122:15 repair."

122:16 So is this an example --

122:17 really this is a true-life example of what you

122:18 were telling me about before, that he had a

122:19 surgery that he didn't remember to tell you the

122:20 first time?

122:21 A. Yes.

122:22 Q. Now, in under the -- the Past

122:23 Medical History, the Family History part of it,

122:24 do you see that, where there are multiple

122:25 members with alcoholism: Father, mother,

123:01 paternal grandfather?

123:02 A. Yes.

123:03 Q. Is that correct?

123:04 A. Yes. And I got this from the

123:05 mother because she was present. Just never -- I

123:06 got this information from the mother.

123:21 - 124:03 Love, Tiundra (2020-10-02) 0:27

123:21 Q. Is it important to you to know Re: [123:21 to 124:03] SUSTAINED

123:22 whether or not a patient's family member has a Pltf Obj 401, 403, MIL C8

123:23 history of alcoholism, like his father, mother,

123:24 paternal grandfather?

123:25 A. Yes.

124:01 Q. Why -- why is that?

124:02 A. Because that's -- family

124:03 history is important. It increases your risk.

124:08 - 124:15 Love, Tiundra (2020-10-02) 0:17

124:08 Q. So, again, it says you did

124:09 this -- complete Ten Point Review of Systems

124:10 done, all are negative except noted in the HPI

124:11 above, which was the same entry we've seen

124:12 before.

124:13 A. Right.

124:14 Q. If you would, look down at the

124:15 Ears.

124:21 - 124:24 Love, Tiundra (2020-10-02) 0:11

124:21 THE WITNESS: As previously

124:22 stated, at that time, he was not having any

124:23 symptoms of that. He was a walk-in complaining

124:24 about his blood pressure.

128:03 - 129:21 Love, Tiundra (2020-10-02) 2:03

128:03 Q. I want -- I want you to walk Re: [128:03 to 129:21]

128:04 us through each one of those seven Impressions Pltf Obj 401, 403, MIL C8

128:05 and Plan items and explain to us what your

128:06 Impressions were and what your Plan was to deal

128:07 with those Impressions.

OVERRULED. MIL PC8 was not 

preserved; the MIL was also specific 

to Hacker and Keefer, and did not 

include McCombs.

Page 13 of 18

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128:08 A. So elevated blood pressure.

128:09 So he didn't have a diagnosis. So now he has

128:10 the diagnosis. I started him -- he was hesitant

128:11 about starting medication and this was discussed

128:12 with his mom.

128:13 To make sure that he didn't

128:14 have any other challenges or issues, I

128:15 ordered -- that can cause primary hypertension,

128:16 I ordered some levels to make sure there was

128:17 nothing going on with his kidneys and so forth.

128:18 There is a history -- there is

128:19 -- No. 2 is alcohol dependency and anxiety. So

128:20 we discussed this alcohol cessation and the

128:21 waning down and the SAT program, versus just

128:22 stopping cold turkey.

128:23 Then No. 3, discussed, again,

128:24 smoking cessation.

128:25 4, he had a -- a slight renal

129:01 insufficiency from the previous visit; however,

129:02 it had improved and it was 1.2 from 1.4 and

129:03 patient had stopped, according to him, the

129:04 creatine.

129:05 Also, I wanted to repeat his

129:06 testosterone level, and the reason why, because

129:07 it contributes to people -- patients being

129:08 fatigued and having symptoms and depressed --

129:09 that he did have. So I wanted to repeat his

129:10 testosterone level so there was a plan to check

129:11 up and follow up on that.

129:12 Tobacco use. Discussed

129:13 tobacco cessation again. And then he just out

129:14 of the blue mentioned that he was having some

129:15 issues with his sinuses and wanted -- because of

129:16 the different altitudes from Ohio to

129:17 Chattanooga. I remember that. And so I put him

129:18 on some Nasaline for his nose.

129:19 And then No. 8 -- or return to

129:20 clinic in two months for his labs prior to --

129:21 one week prior to appointment.

131:16 - 131:17 Love, Tiundra (2020-10-02) 0:05

131:16 Q. Can a low testosterone cause Re: [131:16 to 131:20] SUSTAINED

131:17 problems like changes in mood or energy levels? Pltf Obj 401, 403

131:19 - 131:20 Love, Tiundra (2020-10-02) 0:02

131:19 THE WITNESS: As previously Re: [131:16 to 131:20] SUSTAINED

131:20 stated, yes. Pltf Obj 401, 403

133:09 - 133:22 Love, Tiundra (2020-10-02) 1:34

133:09 So did -- is it fair to say Re: [133:09 to 133:22] SUSTAINED

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133:10 you continued to monitor his testosterone levels Pltf Obj 401, 403

133:11 to be sure that that wasn't a problem?

133:12 A. Yes, yes.

133:13 Q. Okay. Fair enough.

133:14 A. And he's young.

133:15 Q. Did you recommend --

133:16 A. Huh?

133:17 Q. -- did you recommend to

133:18 Mr. McCombs on that visit that he stop drinking?

133:19 A. Every visit.

133:20 Q. And that he stop smoking?

133:21 A. Yes, sir. It's in the notes

133:22 there.

138:04 - 138:24 Love, Tiundra (2020-10-02) 1:09

138:04 Q. Okay. Third line down, I Re: [138:10 to 138:24] OVERRULED

138:05 think it indicates you were the requesting Pltf Obj 401, 403, MIL C8

138:06 provider; is that right? What does that mean?

138:07 Is that like you're the referring physician?

138:08 A. Yes. I referred him to get

138:09 mental health.

138:10 Q. And does it -- it shows under

138:11 there a -- a line that's labeled "Provisional

138:12 Diagnosis."

138:13 Do you see that?

138:14 A. Right. I do.

138:15 Q. And what was -- what was that

138:16 provisional diagnosis?

138:17 A. Alcohol use unspecified with

138:18 other alcohol-induced disorder.

138:19 Q. And what's -- what's meant by

138:20 "other alcohol-induced disorder"?

138:21 A. I'm going to defer that to the

138:22 Mental Health, but that is an ICD-9 code that --

138:23 whatever disorder that the alcohol is inducing,

138:24 based on the alcohol use.

158:02 - 158:15 Love, Tiundra (2020-10-02) 1:47

158:02 Q. Okay. Let's look at the

158:03 Review of Systems again for that office visit.

158:04 A. (Witness complies.)

158:05 Q. And, again, I'm wanting for a

158:06 minute to focus on Ears. And is this an

158:07 indication that, again, on that visit in

158:08 particular, that Mr. McCombs was denying any

158:09 hearing loss?

158:10 A. To me, yes, that's the same.

158:11 Q. And on that visit, in

158:12 particular, was Mr. McCombs denying any

158:13 tinnitus?

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158:14 A. Yes. We was focused on the

158:15 blood pressure.

161:10 - 161:13 Love, Tiundra (2020-10-02) 0:06

161:10 Q. At any rate, you advised him Re: [161:10 to 161:13] SUSTAINED

161:11 not to do the preworkout supplements as well, Pltf Obj 401, 403

161:12 correct?

161:13 A. Yes.

163:02 - 163:13 Love, Tiundra (2020-10-02) 1:42

163:02 Q. And un- -- under the notation Re: [163:02 to 163:13] SUSTAINED

163:03 statement "low-back pain versus muscle strain," Pltf Obj 401, 403

163:04 had Mr. McCombs actually injured himself during

163:05 this workout?

163:06 A. He probably pulled a muscle.

163:07 I'll have to go back and look at it, lumbar x163:08 -- lumbar x-ray. But, I mean, that's not

163:09 uncommon, particularly, you know, if they lift

163:10 too much or they work out too long and don't

163:11 drink enough water or work out on the Peloton or

163:12 what have you. So it was just an acute issue

163:13 that he had. And he -- he discussed it with me.

165:06 - 166:08 Love, Tiundra (2020-10-02) 2:47

165:06 Q. What was he asking Nurse Besh Re: [165:06 to 166:08] OVERRULED

165:07 to do? Pltf Obj 401, 403

165:08 A. Well, according to her notes,

165:09 he was concerned about his blood pressure again.

165:10 And she checked his blood -- got his vital signs

165:11 and his pressure. The bottom was -- number was

165:12 a little bit elevated.

165:13 And let's see. What did she

165:14 advise him on? She repeated the blood pressure.

165:15 And when she did a manual blood pressure, on

165:16 page 1304 -- and it stated that the pressure was

165:17 126 over 84. And at that time, it looked like I

165:18 increased his blood pressure and how to take one

165:19 tablet in the morning and one in the evening

165:20 instead of taking it all -- he took it all in

165:21 the mouth at one time, to get it over with --

165:22 but to have better control of his blood pressure

165:23 according to my note. And she explained how he

165:24 is to stop one medicine and start another and

165:25 that he is to bring his -- oh, check his blood

166:01 pressure twice a day and put it on his log. And

166:02 when to hold a pressure -- if his blood pressure

166:03 gets, you know, to the top number less than 100.

166:04 And she scheduled him for another appointment

166:05 for his labs and his blood pressure to be

166:06 rechecked.

Page 16 of 18

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166:07 And she escorted him out of

166:08 the clinic according to that note.

166:14 - 166:23 Love, Tiundra (2020-10-02) 0:23

166:14 Q. There's a notation from Nurse Re: [166:14 to 166:23] SUSTAINED

166:15 Besh that said: "Asking to get a different Pltf Obj 401, 403

166:16 medication or a higher dose" --

166:17 A. Right.

166:18 Q. -- "because he had been having

166:19 flushing in his face"?

166:20 A. Uh-huh.

166:21 Q. He denies checking his blood

166:22 pressure, BP, at home and states it, quote,

166:23 "freaks," end quote, him out to check it.

167:23 - 169:02 Love, Tiundra (2020-10-02) 2:36

167:23 Q. -- do you see where it says: Re: [167:23 to 169:02] SUSTAINED

167:24 He complained -- He C-O improved. What does Pltf Obj 401, 403

167:25 that mean?

168:01 A. Well, he complained of his

168:02 blood pressure, that he's improved, but he still

168:03 was taking these over-the-counter supplements.

168:04 And at this time, I clarified what it was.

168:05 Creatine -- creatine, testosterone and that

168:06 Power Pak, that Power Pak or whatever, that the

168:07 guys use. And, you know, he had -- and the

168:08 reason why is when I find that their kidney

168:09 function goes up, then that's the way for me to

168:10 say -- you know, ask questions. And then this

168:11 is what he said: He was taking this creatine

168:12 Power Pak.

168:13 And I told him again that it

168:14 was affecting his kidney and liver. He still

168:15 was drinking, but he stated not as much. And he

168:16 complained about his breast -- that should be

168:17 enlarged breast -- and I suggested it might be

168:18 due to the supplements, as they were sore.

168:19 I also discussed that he stop

168:20 these supplement medications. And with that, he

168:21 had denied his -- any chest pains and the

168:22 palpitations and dizziness and shortness of

168:23 breath, particularly with the history of high

168:24 blood pressure and taking these supplements.

168:25 And then I said now he admits he is taking -- he

169:01 is taking blood pressure every day and not

169:02 running as high.

169:13 - 169:19 Love, Tiundra (2020-10-02) 0:21

169:13 Q. Okay. And so this -- this Re: [169:13 to 170:04] SUSTAINED

169:14 makes it clear that when you say: "He is still Pltf Obj 401, 403

Page 17 of 18

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169:15 taking OTC supplements such as creatinine [sic],

169:16 testosterone and powder pack [sic]," that the

169:17 still taking them is the same over-the-counter

169:18 medication that you told him not to take on the

169:19 very first visit with him, correct?

169:21 - 169:23 Love, Tiundra (2020-10-02) 0:08

169:21 THE WITNESS: The creatine, Re: [169:13 to 170:04] SUSTAINED

169:22 because I didn't know anything about the Pltf Obj 401, 403

169:23 Power Pak at the time.

169:25 - 170:04 Love, Tiundra (2020-10-02) 0:15

169:25 Q. Was Mr. McCombs experiencing Re: [169:13 to 170:04] SUSTAINED

170:01 any side effects from those over-the-counter Pltf Obj 401, 403

170:02 supplements when you saw him on that day?

170:03 A. On the 24th of January?

170:04 Q. Yes.

Page 18 of 18

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Preserved Objections Previous Rulings New Objections Rulings

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

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

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

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

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

8:11 Maryland; is that right?

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

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

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

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

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

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

8:18 A. Since July of 2018.

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

8:19 Q. Can you give us an overview of your

8:20 military service leading up to July of 2018?

8:21 A. Sure. I -- I started in the National

9:01 Guard in 19 -- September 1991. I joined the Utah

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

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

9:04 Fort Leonard Wood, Missouri.

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

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

9:07 was at the Defense Language Institute for almost

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

9:09 trained as an interrogator.

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

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

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

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

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

9:15 reserve through June of 1999 and then commissioned

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

9:17 audiologist with the 7231st Mobilization Support

9:18 Unit in Lubbock, Texas.

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

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

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

Designations

* Defendants currently propose playing on the testimony in white. Testimony highlighted in gray reflects the testimony originally designated subject to Plaintiffs' full objection that Defendants no 

longer intend to play.

Page 1 of 81

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

10:02 2000.

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

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

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

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

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

10:08 when I deployed to Iraq.

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

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

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

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

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

10:14 returned from that deployment in November of 2007

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

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

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

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

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

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

10:21 hearing conservation program manager. In Wurzburg,

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

11:02 and the hearing conservation program manager for

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

11:04 Hospital and all of the subordinate clinics to

11:05 Wurzburg.

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

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

11:08 the theatre consultant for audiology.

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

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

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

11:12 for Health Promotion and Preventive Medicine at the

11:13 time.

11:14 Q. CHPPM?

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

11:16 to the Army Public Health Command Region Europe

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

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

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

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

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

12:01 Regional Medical Command audiology consultant.

Page 2 of 81

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

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

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

12:05 installation hearing program manager and was

12:06 assigned to the Department of Preventive Medicine.

12:07 I also served as the western

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

12:09 consultant until the regions changed and Fort

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

12:11 Q. That's okay.

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

12:13 the region, --

12:14 Q. Got it.

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

12:16 transitioned, and I became the central region

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

12:18 Carson in January 2015 to the Defense Hearing

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

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

12:21 Excellence.

13:01 Q. What year was that?

13:02 A. That was in January 2015.

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

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

13:05 A. So --

13:06 Q. -- hearing division?

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

13:08 PCS'd to Aberdeen Proving Grounds.

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

13:16 So, were you the Army liaison officer at

13:17 the Defense Center for Hearing Excellence up until

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

13:19 Army Hearing Program?

13:20 A. Yes.

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

14:01 A. Correct.

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

14:02 Q. What responsibilities does the Army

14:03 Hearing Program have?

14:04 A. Well, the Army Hearing Program has

14:05 responsibility for oversight of the -- of

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14:06 the -- the Army Hearing Program across the world.

14:07 We have professionals that monitor the

14:08 database for surveillance audiometry and report on

14:09 the database report statistics from the -- you

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

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

14:12 monitoring audiogram, the number of individuals

14:13 that received a monitoring audiogram, injury and

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

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

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

14:17 We also have a studies and investigations

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

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

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

14:21 hearing health across the Department of Defense.

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

15:02 specifically at ways of improving hearing health.

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

15:04 collaborate with other organizations, like the

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

15:06 you know, best practices and implementing best

15:07 practices in hearing conservation.

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

15:08 Q. Does the Army Hearing Program have a role Re: [15:08 to 16:05] OVERRULED

15:09 in determining what type of hearing protection

Def Obj Improper counter

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

15:11 Army?

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

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

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

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

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

15:17 responsibility falls to the Program Executive

15:18 Office for soldiers --

15:19 Q. Who's --

15:20 A. -- I believe.

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

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

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

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

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

16:05 hearing protectors to use.

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

18:18 Q. Where is the Army Hearing Program

18:19 physically located?

18:20 A. Aberdeen Proving Grounds. The Edgewood

18:21 area of Aberdeen Proving Grounds.

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

22:06 Q. The Department of Defense requires the

22:07 Army to maintain a Hearing Conservation Program,

22:08 right?

22:09 A. Correct.

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

22:14 Q. I'm going to hand you what I have marked

22:15 as Exhibit 1. Take a look at Exhibit 1 and tell me

22:16 if you recognize it.

22:17 A. Yes.

22:18 Q. What is that document?

22:19 A. Well, this is an -- an outdated

22:20 Department of Defense instruction for the Hearing

22:21 Conservation Program.

23:01 Q. You say outdated. This particular

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

23:03 A. Correct.

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

23:05 time, right?

23:06 A. Correct.

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

23:08 April of 1996 was?

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

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

23:11 instruction during at least 1996 to 2010?

23:12 A. I believe so.

23:13 Q. This instruction contains a number of

23:14 requirements for the Hearing Conservation Program

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

23:16 A. Correct.

23:17 Q. Including the Army?

23:18 A. Yes.

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

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

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

24:01 A. Yes.

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

24:04 Q. And, for example, 6.6.2 requires that DoD

24:05 components issue personal hearing protectors free

24:06 to all personnel who work in noise or

24:07 noise-hazardous areas or with noise-hazardous

24:08 equipment, right?

24:09 A. Right.

24:10 Q. 6.6.5 provides that DoD personnel shall

24:11 be allowed to choose personal hearing protectors

24:12 from among those approved devices available through

24:13 supply channels unless medically contraindicated or

24:14 inappropriate for a particular hazardous-noise

24:15 exposure; is that right?

24:16 A. Correct.

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

24:18 what hearing protection device they wear while in

24:19 service?

24:20 A. Yes.

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

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

25:01 be fitted and issued only under the supervision of Pltf Obj 611 OVERRULED

25:02 personnel who have been specifically trained to fit

25:03 earplugs, did I read that right?

25:04 A. Correct.

25:05 Q. What are preformed earplugs?

25:06 A. Preformed earplugs are ear -- earplugs

25:07 that are -- you -- you don't form on yourself.

25:08 They're not moldable. They -- they come premolded

25:09 usually containing flanges. They can be single

25:10 flanges up to -- currently there are hearing

25:11 protectors that have four flanges.

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

25:13 Arms Version 2 Earplug?

25:14 A. Yes.

25:15 Q. Is that a preformed earplug?

25:16 A. Yes.

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

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25:18 issued to service members, the DoD instruction

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

25:20 under the supervision of personnel who have been

25:21 specifically trained to fit earplugs --

26:01 MR. BUCHANAN: Objection to form.

26:02 BY MR. WASDIN:

26:03 Q. -- is that right?

26:04 A. That's correct.

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

26:06 trained personnel must examine the fit and

26:07 condition of preformed and custom earplugs at least

26:08 annually, right?

26:09 A. Yes.

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

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

26:12 examined for fit at least annually?

26:13 A. Correct.

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

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

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

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

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

26:19 A. Correct.

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

26:20 Q. Flipping back a page or two, excuse me,

26:21 page -- the page at the bottom is 3, there is a

27:01 requirement under the header 6, Procedures, and

27:02 subheader, 6.1, Written Plan, that the DoD

27:03 components shall prepare a written plan for the

27:04 implementation of a comprehensive Hearing

27:05 Conservation Program, right?

27:06 A. Correct.

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

27:14 Q. For example, 6.1 states that the plan to

27:15 be implemented by the DoD components shall address

27:16 occupational noise exposure, computation and

27:17 monitoring, noise abatement, hearing protectors,

27:18 methods for exa- -- estimating the adequacy of

27:19 hearing protector attenuation, training,

27:20 audiometric testing requirements, audiometric test

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27:21 rooms, audiometric measuring instruments, acoustic

28:01 calibration of audiometers, recordkeeping and

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

28:03 A. Yes.

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

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

28:06 tracked those items?

28:07 A. Correct.

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

28:18 Q. LTC Merkley, do you recognize the

28:19 document that I have handed you as Exhibit 2?

28:20 A. Yes.

28:21 Q. What is it?

29:01 A. DA Pamphlet 40-501. It's the Army's

29:02 written program for the Hearing Conservation

29:03 Program.

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

29:05 right?

29:06 A. Correct.

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

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

29:09 right?

29:10 A. Correct.

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

29:12 after 1998?

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

29:14 2014.

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

29:16 operative document as of December --

29:17 A. Yes.

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

29:19 2014?

29:20 A. Correct.

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

30:17 Q. If you flip to Chapter 6 on page 5, for

30:18 example, section 6.1 titled, Introduction, it

30:19 begins by saying that all personnel working in or

30:20 visiting potentially noise-hazardous areas must

30:21 have hearing protectors with them at all times, do

31:01 you see that?

31:02 A. Yes.

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

31:03 Q. Section 6.2, labeled Protector

31:04 Requirements, contains guidelines that were then in

31:05 place for what type of protector to wear in various

31:06 types of steady-state or impulse noises, correct?

31:07 A. Correct.

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

31:09 labeled Characteristics discusses the various types

31:10 of hearing protection devices that were then

31:11 available; is that right?

31:12 A. Yes.

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

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

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

31:16 earplugs. Medically trained personnel must fit and

31:17 examine these earplugs at least annually to ensure

31:18 proper fit and condition, right?

31:19 A. Correct.

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

31:20 Q. I noticed, if you go back to 6.1c on page

31:21 5, there's a reference that an earplug carrying

32:01 case must also be provided in addition to earplugs?

32:02 A. Um-hum.

32:03 Q. And then it has a single national stock

32:04 number there?

32:05 A. Correct.

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

32:07 referring to?

32:08 A. Yes.

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

32:10 carrying case that would be issued regardless of

32:11 what type of preformed earplug you get?

32:12 A. Yes.

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

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

32:15 already?

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

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

32:18 that was prior to 1998.

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

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33:03 Q. What year were you issued one?

33:04 A. I was issued one in 1994.

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

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

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

33:07 preformed earplugs at least annually to ensure

33:08 proper fit and condition, can you tell us how, if

33:09 you know at this time, medically trained personnel

33:10 would have evaluated the fit of preformed earplugs

33:11 for service members?

33:12 A. For --

33:13 MR. BUCHANAN: Objection to form and

33:14 foundation.

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

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

33:17 preformed earplugs at basic training back in

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

33:19 orange, regular hearing protectors, and the

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

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

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

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

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

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

34:06 - 34:07 Merkley, LTC John A. (2020-02-26) 0:04

34:06 Q. That happened for you at basic?

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

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

34:09 Q. Okay. Re: [34:09 to 34:12] Re: [34:09 to 34:12]

34:10 A. We trained all of our technicians on the

Pltf Obj 602 OBJECTION WITHDRAWN,

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

34:12 good or a poor fit.

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

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

34:14 technique -- would the technician actually insert

Pltf Obj 602 OBJECTION WITHDRAWN,

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

34:16 A. Not usually.

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

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

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

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

34:20 member would walk by the technician, and the

34:21 technician would do a check.

35:01 Q. Visual and tug test?

35:02 A. Visual and tug test.

35:05 - 35:17 Merkley, LTC John A. (2020-02-26) 0:19

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

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

35:07 audiologist in that time frame, sir?

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

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

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

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

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

35:13 to me --

35:14 MAJOR EVANS: Okay.

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

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

35:17 to be clear about.

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

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

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

37:01 A. Yes.

OBJECTION WITHDRAWN, 

3/11/2021

37:02 Q. Why?

37:03 A. Because in a combat zone, a combat

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

37:05 happening around you.

37:06 Q. Is situation awareness a dueling priority

37:07 with hearing protection?

37:08 A. Absolutely.

37:09 Q. Why?

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

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

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

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

38:06 flip to section 6.2, you told me earlier that this Pltf Obj 611 OVERRULED

38:07 section had requirements for the use of hearing

38:08 protection in various situations in noise I

38:09 believe?

38:10 MR. BUCHANAN: Objection. Form.

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

38:12 section had the requirements. It may.

38:13 BY MR. WASDIN:

38:14 Q. This is section 6 --

38:15 A. It does indicate what hearing protection

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

38:17 noise.

38:18 Q. Okay. And if you go on to page 6 and go

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

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

38:21 for combat scenarios, right?

39:01 A. Right.

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

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

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

40:06 A. Correct.

40:07 Q. -- there's a dash, and it has a

40:08 subsection (1) and (2), and if you -- can you look

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

40:10 me what that says?

40:11 A. Should NOT wear hearing protectors when

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

40:13 dismounted infantry operations.

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

40:15 requirement was that when in combat, service

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

40:17 capitalized, wear hearing protectors when they

40:18 impair necessary hearing, including with dismounted

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

40:20 MR. BUCHANAN: Objection to form.

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

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

41:18 Q. LTC Merkley, I have handed you a document

41:19 we have marked as Exhibit 3. This is a test report

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

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

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

42:01 A. Not that I recall, no.

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

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

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

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

43:20 have endeavored to develop tactical headset

43:21 technologies which protect the hearing of mounted

44:01 and dismounted personnel from weapons and blast

44:02 noise while promoting ambient soundscape listening

44:03 and voice communications, did I read that right?

44:04 A. Yes.

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

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

44:07 with industry to develop nonlinear hearing devices?

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

44:09 as to time.

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

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

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

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

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

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

44:16 type of hearing protector.

44:17 BY MR. WASDIN:

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

44:19 Earplug?

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

44:21 THE WITNESS: Yes.

45:01 BY MR. WASDIN:

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

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

45:04 to develop the Combat Arms Earplug?

45:05 MR. BUCHANAN: Objection to form and

45:06 foundation.

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

45:08 BY MR. WASDIN:

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

45:10 little bit.

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

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

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

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

45:18 it, but I'll refer to it as Exhibit 4.

45:19 If you flip that open, tell me if you

45:20 recognize the document as a test report prepared by

45:21 a gentleman named Dan Johnson in the mid 1990s?

46:01 A. That's who signed it, yes.

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

46:02 Q. Have you ever seen this test report

46:03 before?

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

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

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

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

46:10 right?

46:11 A. Correct.

46:12 Q. And it appears to have been conducted in

46:13 Albuquerque, New Mexico, correct?

46:14 A. Correct.

46:15 Q. If you -- I'm going to use the romanettes

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

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

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

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

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

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

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

47:02 Research and Material Command at Fort Detrick in

47:03 Maryland, right?

47:04 A. Correct.

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

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

47:07 then Nonlinear Earplug Study, right?

47:08 A. Correct.

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

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

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

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

48:18 Laboratory, USAARL, Fort Rucker, Alabama. Did I

48:19 read that right?

48:20 A. Yes.

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

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

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

49:08 designed by the French-German Research Institute

49:09 Saint-Louis, ISL France,) did I read that right?

49:10 A. Yes.

49:11 Q. Have you ever heard of the French No. 1

49:12 Plug?

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

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

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

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

611 OVERRULED

50:08 UltraFit with a 2 millimeter diameter hole through

50:09 it's longitudinal access. This modification

50:10 consisted of shortening the stem by 8 millimeters

50:11 and putting the filter designed at ISL Saint-Louis,

50:12 France in the front end of the plug, and then it

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

50:14 A. Yes.

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

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

50:17 version of the ISL filter in it?

50:18 A. Yes.

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

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

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

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

51:12 about it?

51:13 A. I've just heard -- this is the

51:14 Albuquerque --

51:15 Q. Yeah.

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

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

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

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

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

51:21 I know about it.

52:01 Q. Okay.

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

52:03 subjects.

52:04 Q. Impulse noise study?

52:05 A. Impulse noise study, yeah.

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

52:06 Q. Using nonlinear earplugs?

52:07 MR. BUCHANAN: Objection to form and

52:08 foundation.

52:09 THE WITNESS: Well, I -- I didn't -- I

52:10 don't -- I just knew it was a blast study.

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

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

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

52:14 Plug with respect to percent of unacceptable TTS

52:15 versus peek level, do you see that?

52:16 A. Yes.

52:17 Q. What does TTS mean?

52:18 A. Temporary threshold shift.

52:19 Q. So, that means essentially that someone's

52:20 hearing shifts temporarily and responds to an

52:21 exposure to noise?

53:01 MR. BUCHANAN: Objection to form.

53:02 THE WITNESS: Yes.

53:03 BY MR. WASDIN:

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

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

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

53:07 unacceptable TTS?

53:08 A. Yes.

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

53:10 performance up through 193 decibels at various

53:11 numbers of shots fired?

53:12 MR. BUCHANAN: Objection to form and

53:13 foundation. Leading.

53:14 THE WITNESS: Yes.

53:15 BY MR. WASDIN:

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

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

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

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

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

53:21 A. Correct.

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

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

54:03 unacceptable TTS?

54:04 MR. BUCHANAN: Objection to form.

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

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

54:07 percent, then, yes.

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

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

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

56:05 A. Yes.

56:06 Q. And then there's a section for the

56:07 Nonlinear Earplug Study below that, right?

56:08 A. Correct.

56:09 Q. And I'm going to start with the second

56:10 paragraph for the nonlinear earplug study, and

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

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

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

56:14 Fort Rucker was inadequate. Perhaps with

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

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

56:17 perforated plug, they made it difficult to

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

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

56:20 right?

56:21 A. Yes.

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

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

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

57:08 special filter designed in France performed better

57:09 and may be a satisfactory solution; however, not

57:10 enough subjects were exposed to provide a

57:11 definitive answer, did I read that right?

57:12 A. Yes.

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

Page 17 of 81

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58:02 Q. So, again, just to sort of -- I'm going

58:03 to hand you a document I have marked Exhibit 5, and

58:04 to level set our chronology here, the Johnson blast

58:05 study, the Albuquerque study, that was -- the front

58:06 of that was dated 1996, correct?

58:07 A. Correct. Right.

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

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

58:10 Conservation Working Group Meeting 9 April 1998,

58:11 right?

58:12 A. Correct.

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

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

58:15 that time period?

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

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

58:19 Hearing Conservation Working Group is.

58:20 BY MR. WASDIN:

58:21 Q. Okay. What is it?

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

59:02 health professionals across the DoD that respond to

59:03 and address issues related to hearing conservation

59:04 in the Department of Defense.

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

59:12 Q. If you turn to it looks like on the first

59:13 page, the agenda for the April 9th, 1998 meeting,

59:14 there's a highlighted piece in the middle, number

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

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

59:17 A. Yes.

59:18 Q. Who is Doug Ohlin?

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

59:20 assigned to the Army Center for Health Promotion

59:21 and Preventive Medicine as the Hearing Conservation

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

60:02 also the chair of the DoD Hearing Conservation

60:03 Working Group.

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

60:04 Q. Do you know what dates Mr. Ohlin would

60:05 have held that position?

Page 18 of 81

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60:06 A. Not exactly. He -- he was in that

60:07 position when I came on active duty as an

60:08 audiologist, and I -- I don't remember when

60:09 he -- he retired.

60:10 - 60:12 Merkley, LTC John A. (2020-02-26) 0:07

60:10 Q. Do you know what Mr. Ohlin's Re: [60:10 to 60:12] SUSTAINED

60:11 responsibilities were in that position in the late

Def Obj Improper counter

60:12 1990s?

60:15 - 60:20 Merkley, LTC John A. (2020-02-26) 0:11

60:15 THE WITNESS: Not -- not exactly. Re: [60:15 to 60:20] SUSTAINED

60:16 BY MR. WASDIN:

Def Obj Improper counter

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

60:18 had the responsibility to evaluate hearing

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

60:20 Conservation Working Group?

61:01 - 61:02 Merkley, LTC John A. (2020-02-26) 0:03

61:01 THE WITNESS: I -- I don't know if that Re: [61:01 to 61:02] SUSTAINED

61:02 was his responsibility.

Def Obj Improper counter

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

61:13 Q. The memorandum is on Department of Army

61:14 letterhead?

61:15 A. Right. It's for the Department of the

61:16 Army Research Laboratory.

61:17 Q. ARL?

61:18 A. Right.

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

61:20 A. Correct.

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

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

62:02 France 5 to 23 December 1996?

62:03 A. Correct.

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

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

62:06 named Georges Garinther?

62:07 A. Um-hum.

Page 19 of 81

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

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

62:09 A. I've heard his name associated with other

Def Obj Improper counter

62:10 studies, but I -- I don't know him exactly, what

62:11 his responsibilities were.

62:12 Q. Was he a member of the U.S. Army?

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

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

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

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

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

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

611 SUSTAINED

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

63:05 about a trip report that was at the end of 1996, so

63:06 after the Johnson blast study we talked about?

63:07 A. Right. Okay.

63:08 Q. And on paragraph 5 he writes, In view of

63:09 the potential positive impact of nonlinear

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

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

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

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

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

63:15 a larger number of subjects and exposing the

63:16 soldiers to large caliber mortars. The experiments

63:17 conducted in December consisted of, and then

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

63:19 A. Um-hum.

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

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

64:01 earplugs with the ISL filter?

64:02 MR. BUCHANAN: Objection to the leading

64:03 and foundation.

64:04 THE WITNESS: Yes.

64:05 BY MR. WASDIN:

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

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

64:08 to a detailed analysis indicate that the nonlinear

64:09 earplug protected hearing as effectively as the

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

Page 20 of 81

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64:11 soldiers, did I read that right?

64:12 A. Yes.

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

65:06 Q. If you go to page 5, one over, paragraph

65:07 11, Mr. Garinther writes, I have discussed these

65:08 results with Felix Sachs and Doug Ohlin of CHPPM,

65:09 who also believe that nonlinear earplugs should be

65:10 included as a standard or specialized earplug in

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

65:12 A. Yes.

65:13 Q. Who is Felix Sachs?

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

65:15 control engineer assigned to the Center for Health

65:16 Promotion and Preventive Medicine.

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

65:17 Q. A member of the Army?

65:18 A. No. He was a civilian.

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

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

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

611 SUSTAINED

66:05 tested a nonlinear earplug and discussed the

66:06 results of that with Felix Sachs and Doug Ohlin?

66:07 MR. BUCHANAN: Objection to form.

66:08 THE WITNESS: Yes.

66:09 BY MR. WASDIN:

66:10 Q. If you turn the page again, there's a

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

66:12 1998.

66:13 A. Okay.

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

66:15 Army letterhead or --

66:16 A. That's the Research Laboratory

66:17 letterhead.

66:18 Q. Yes.

66:19 A. Correct.

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

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

67:01 November 1997, right?

67:02 A. Correct.

Page 21 of 81

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

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

67:05 Mr. Georges Garinther, right?

67:06 A. Yes.

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

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

67:09 November 1997, the undersigned participated in

67:10 testing of this device using French soldiers firing

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

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

67:13 this earplug to determine its hearing protective

67:14 qualities when firing the FAMAS, the French

67:15 equivalent to the M16, when detecting and

67:16 localizing various military sounds and when

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

67:18 A. Yes.

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

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

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

68:01 earplug they were using?

68:02 MR. BUCHANAN: Objection to the leading

68:03 and foundation.

68:04 THE WITNESS: Yes.

68:05 BY MR. WASDIN:

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

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

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

68:09 by the government, but the highlighted paragraph

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

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

68:12 exceeding the criterion of acceptability after 24

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

68:14 after five minutes that exceeded the CHABA

68:15 criterion. This analysis indicates that nonlinear

68:16 earplugs provide acceptable hearing protection

68:17 especially when one considers that the alternative

68:18 presently being used is to not wear hearing

68:19 protection, did I read that right?

68:20 A. Yes.

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

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

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

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

Page 22 of 81

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69:04 manufactured by the same company that manufactures

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

69:06 A. Yes.

69:07 Q. Going down in that paragraph,

69:08 Mr. Garinther talks about different alternatives

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

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

69:11 bottom?

69:12 A. Yes.

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

69:14 earplug provides essentially no attenuation against

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

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

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

69:17 necessary to provide the soldiers with normal

69:18 earplugs. The configuration issue centers about

69:19 providing the soldiers with, and then there are

69:20 three options in bullets, right?

69:21 A. Correct.

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

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

70:03 essentially two different plugs?

70:04 A. Correct.

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

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

70:07 right?

70:08 A. (Nodding head yes.)

70:09 Q. Did I read that right?

70:10 A. Yes.

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

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

70:13 normal earplug at the other, right?

70:14 A. Correct.

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

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

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

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

72:02 recommendation of the undersigned that this

72:03 nonlinear earplug be considered for use by the Army

72:04 since its use by weapon crews will reduce hearing

Page 23 of 81

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72:05 loss among soldiers while permitting them to hear

72:06 voice commands and combat-related sounds, did I

72:07 read that right?

72:08 A. Yes.

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

72:10 recommending to the Army that they move forward

72:11 with a nonlinear earplug?

72:12 MR. BUCHANAN: Objection to form.

72:13 THE WITNESS: Yes.

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

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

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

611 SUSTAINED

72:17 military requested that Aearo manufacture a

72:18 nonlinear earplug for use in the military?

72:19 MR. BUCHANAN: Objection to the form and

72:20 foundation.

72:21 THE WITNESS: So, do I know? I've --

73:01 I've have seen documents that indicate that, yes,

73:02 they requested that from Aearo, but I -- other than

73:03 that, I don't know.

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

73:05 Q. You didn't participate in those? Re: [73:05 to 74:02] OVERRULED

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

Def Obj Improper counter

73:07 Q. What does your review of documents

73:08 indicate the military requested from Aearo in a

73:09 nonlinear earplug?

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

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

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

73:13 earplug from Aearo?

73:14 A. No.

73:15 Q. Do you --

73:16 A. Not that I recall.

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

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

73:19 nonlinear earplug from Aearo?

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

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

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

Page 24 of 81

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74:02 dual-ended earplug.

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

75:13 Q. LTC Merkley, what we have marked as

75:14 Exhibit 6 is a series of email communications that

75:15 were produced to us by the -- the military in this

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

75:17 and just kind of --

75:18 A. Um-hum.

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

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

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

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

76:12 Q. Okay. If you turn to the second page of

76:13 the Exhibit 6 and go to the bottom email, there's

76:14 an email from Doug Ohlin to a few other people

76:15 dated April 13th, 1999, do you see that?

76:16 A. Yes.

76:17 Q. Who is Wayne -- the recipients are Wayne

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

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

76:20 is Wayne Loyborg?

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

77:01 he's an audiologist.

77:02 Q. Civilian or in the military?

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

77:04 Q. And who is David Chandler?

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

77:06 audiologist.

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

77:07 Q. And do you recognize that last email

77:08 address?

77:09 A. I -- I don't.

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

77:10 Q. And then below that, there's Martin

77:11 Robinette?

77:12 A. Right.

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

77:13 Q. Who's Martin Robinette?

Page 25 of 81

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77:14 A. He is an active duty Army audiologist.

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

77:15 Q. Okay. In April of 1999, Doug Ohlin

77:16 writes to that group and says, the production

77:17 samples Aearo sent me were at least a quarter of an

77:18 inch too long. I took the liberty in cutting down

77:19 the samples I'm sending you under a separate cover.

77:20 The production samples didn't fit in the standard

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

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

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

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

78:04 A. Yes.

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

78:05 Q. If you turn back a page to the front,

78:06 there's an email from Brian Myers at a Compuserve

78:07 email address to Doug Ohlin dated April 8th, 1999,

78:08 do you see that?

78:09 A. Um-hum.

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

78:10 Q. Do you know who Brian Myers is?

78:11 A. I don't.

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

78:12 Q. Okay. The email says, Doug, and then the

78:13 second paragraph says, I spoke with Dick Knauer who

78:14 believes that we can probably shorten the plug by

78:15 the one-quarter inch required to fit your current

78:16 container. The designer will look at this when he

78:17 gets back from vacation on the 19th. It may help

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

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

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

78:21 A. Um-hum.

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

79:08 Q. Okay. Prior to today, did you know that Re: [79:08 to 79:15] OVERRULED

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

Def Obj Improper counter

79:10 of an inch?

Page 26 of 81

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79:11 A. No.

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

79:13 any discussions regarding whether to shorten the

79:14 Combat Arms Version 2?

79:15 A. No.

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

79:16 Q. If you flip to the -- what is the third

79:17 page of Exhibit 6, you'll see another email from

79:18 Doug Ohlin, and this one is dated approximately one

79:19 month later in May of 1999, do you see that --

79:20 A. Um-hum.

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

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

80:02 acceptable production samples. Do you require a

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

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

80:05 right?

80:06 A. Yes.

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

80:07 Q. Who is -- are you familiar with someone Re: [80:07 to 80:09] OVERRULED

80:08 named Belva Hoffman?

Def Obj Improper counter

80:09 A. I am not, no.

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

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

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

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

80:19 Assessments in Reverberating Environments, do you

80:20 see that?

80:21 A. Yes.

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

81:02 Laboratory Hearing Research & Engineering

81:03 Directorate; is that right?

81:04 A. Yes.

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

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

81:07 Research Laboratory.

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

81:08 Q. And at the very top, it's a little faded,

Page 27 of 81

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81:09 but it looks like this was a report that was

81:10 prepared about two months after the Doug Ohlin

81:11 email we just looked at, but on June 30th, 1999?

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

81:19 THE WITNESS: Yes.

81:20 BY MR. WASDIN:

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

82:01 a paragraph titled, Overview, do you see that?

82:02 A. Yes.

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

82:04 Engineering Directorate initiated a quick response

82:05 effort to collect data on several hearing

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

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

82:08 did I read that right?

82:09 A. Yes.

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

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

82:11 A. I don't.

Def Obj Improper counter

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

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

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

83:01 collect data on the French design Combat Arms

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

83:03 Company, Indianapolis, Indiana, right?

83:04 A. Correct.

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

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

83:06 is running its own testing on the Combat Arms Pltf Obj 602; 611; 

Foundation SUSTAINED

83:07 Earplug?

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

83:10 THE WITNESS: Yes. Re: [83:10 to 83:10] Re: [83:10 to 83:10]

Pltf Obj 602; 611; 

Foundation SUSTAINED

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

Page 28 of 81

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83:12 Q. That's what this document indicates?

83:13 A. That's what it says, yes.

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

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

83:16 sorry, page 4 is what I was trying to go after.

83:17 Operational Significance is the section. Do you

83:18 see the Operational Significance paragraph?

83:19 A. Yes.

83:20 Q. It states, the results of this

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

84:01 for the protective device of primary interest to

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

84:03 properly fitted will provide acceptable protection

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

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

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

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

84:08 right?

84:09 A. Correct.

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

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

84:12 at that point in time?

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

84:15 THE WITNESS: From this description, yes.

84:16 BY MR. WASDIN:

84:17 Q. And what was it?

84:18 A. They were --

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

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

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

Foundation OVERRULED; 602 & 611

85:02 of that earplug firing or under worst-case OBJECTIONS 

WITHDRAWN,

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

3/11/2021

85:04 BY MR. WASDIN:

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

85:06 at least at a high level here?

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

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

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85:09 protector provides acceptable protection for firing

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

85:11 ammunition.

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

86:03 Q. Okay. Well, at least in this case, it

86:04 looks like the military, ARL was conducting testing

86:05 of the Combat Arms Earplug in June of 1999?

86:06 A. Right.

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

86:08 THE WITNESS: Correct.

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

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

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

Foundation OVERRULED

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

86:13 THE WITNESS: For up to -- up to a

86:14 certain point.

86:15 BY MR. WASDIN:

86:16 Q. Up to 276 rounds of M16 fire?

86:17 A. Correct.

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

87:02 Q. LTC Merkley, I've handed you a document

87:03 that we have marked as Exhibit 8, which is titled,

87:04 Memorandum for Staff Director, Joint Readiness

87:05 Clinical Advisory Board at Fort Detrick, do you see

87:06 that?

87:07 A. Yes.

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

87:09 request for national stock number in bulk purchase

87:10 of the Combat Arms Earplug, right?

87:11 A. Yes.

87:12 Q. Paragraph 2 on the first page states that

87:13 the Department of Defense Hearing Conservation

87:14 Working Group has recommended that a nonlinear

87:15 earplug configured to the specifications of the

87:16 enclosed production samples be adopted for military

87:17 use, did I read that right?

87:18 A. Yes.

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87:19 - 88:06 Merkley, LTC John A. (2020-02-26) 0:25

87:19 Q. Have you ever seen a memorandum like this Re: [88:02 to 88:06] OVERRULED

87:20 one before, a request for a national stock number

Def Obj Improper counter

87:21 and purchase of hearing protection?

88:01 A. I have not seen that, no.

88:02 Q. Okay. Do you know what evaluation is

88:03 typically done by the DoD Hearing Conservation

88:04 Working Group, or others in the military, prior to

88:05 requesting a national stock number and purchase?

88:06 A. I'm not --

88:10 - 88:11 Merkley, LTC John A. (2020-02-26) 0:02

88:10 Q. You do not? Re: [88:10 to 88:11] OVERRULED

88:11 A. No, I don't.

Def Obj Improper counter

88:17 - 88:19 Merkley, LTC John A. (2020-02-26) 0:04

88:17 Q. Sure. Doug Ohlin is -- is the person

88:18 listed in the signature block --

88:19 A. Correct.

89:10 - 89:16 Merkley, LTC John A. (2020-02-26) 0:22

89:10 Q. Okay. Attached to the request for Re: [89:10 to 89:16] Re: [89:10 to 89:16]

89:11 purchase is a Justification for a Nonlinear Earplug Pltf Obj 611 OVERRULED

89:12 (Combat Arms Earplug), right?

89:13 A. Um-hum.

89:14 Q. And you can skim it, but essentially,

89:15 it's just a write-up of the features and potential

89:16 usability of the Combat Arms plug?

89:18 - 89:18 Merkley, LTC John A. (2020-02-26) 0:06

89:18 THE WITNESS: Correct.

89:20 - 90:15 Merkley, LTC John A. (2020-02-26) 1:52

89:20 Q. The final paragraph on the first page of

89:21 the justification discusses the American military's

90:01 contribution in the development effort of the

90:02 Combat Arms Earplug, right?

90:03 A. Yes.

90:04 Q. It discusses -- well, I'll just read it.

90:05 It says, the American military's contribution in

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90:06 this development effort has been to recommend an

90:07 American-made earplug, the UltraFit to

90:08 hous- -- house the French filter, the color scheme

90:09 and blast overpressure testing. The single-sized

90:10 UltraFit should accommodate most of our Combat Arms

90:11 users. Moreover, thanks to French ergonomic

90:12 designers, a solution has been provided on how to

90:13 eliminate wind noise while adapting the earplug for

90:14 steady-state noise use, did I read that right?

90:15 A. Yes.

93:15 - 95:04 Merkley, LTC John A. (2020-02-26) 2:19

93:15 Q. Okay. We've talked a lot about Doug

93:16 Ohlin. I know you told me what his role was, but

93:17 did you ever have interactions with him?

93:18 A. I did.

93:19 Q. How did you interact with Mr. Ohlin?

93:20 A. Well, I interacted with him. When I

93:21 first came on active duty, I came to the CHPPM to

94:01 teach a couple of hearing conservation technician

94:02 courses. I interacted with him at -- at that time

94:03 just in -- as an instructor for a course that --

94:04 that they were -- they were holding at Aberdeen.

94:05 I met him at conferences and, you know,

94:06 received updates on the Army's Hearing Conservation

94:07 Program from him. That's about it.

94:08 Q. Was -- was Doug Ohlin a presenter at the

94:09 conferences that you went to with him?

94:10 A. Not usually. It was his staff that were

94:11 presenting. I -- I don't recall him ever being

94:12 a presenter in a presentation, other than I -- we

94:13 received instruction from him related to the wallet

94:14 cards and -- and the educational materials that

94:15 were being put out.

94:16 Q. For the Combat Arms plug?

94:17 A. For the Combat Arms Earplug. I -- I

94:18 remember that.

94:19 Q. So, you have had conversations with

94:20 Mr. Ohlin related to the wallet card and

94:21 instructions for use for the Combat Arms Earplug?

95:01 A. Yes.

95:02 Q. When did you talk to him about that?

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95:03 A. Oh, I don't remember exactly. Between

95:04 200- -- probably 2001 and 2004 or '5.

95:05 - 95:18 Merkley, LTC John A. (2020-02-26) 1:05

95:05 Q. What were the context for those

95:06 conversations?

95:07 A. Oh, just at -- at the conference about,

95:08 you know, the -- how to get hearing protectors, how

95:09 to -- not -- not so much on how to fit them,

95:10 although I -- well, yeah. You know, we -- we got

95:11 instructions on how to order them, who to -- who to

95:12 order them from in terms of for -- for

95:13 government -- government sales and -- and then

95:14 issues related to -- early in their development

95:15 issues related to insufficient stock of that

95:16 particular hearing protector because of bulk

95:17 purchases from other services and what to do to get

95:18 hearing protectors.

95:19 - 96:01 Merkley, LTC John A. (2020-02-26) 1:36

95:19 Q. What was your role at the time?

95:20 A. I was the chief of the Army Hearing

95:21 Program at or the Army Hearing Conservation Program

96:01 and Audiology Clinic at Fort Drum.

96:06 - 98:09 Merkley, LTC John A. (2020-02-26) 2:49

96:06 Q. LTC Merkley, we've handed you a document Re: [96:06 to 98:09] Re: [96:06 to 98:09]

96:07 marked Exhibit 9, and can you tell me if you Pltf Obj 602; 611 OVERRULED

96:08 recognize that?

96:09 A. Yes.

96:10 Q. What is that?

96:11 A. It's a wallet -- it's one of the wallet

96:12 cards that was developed.

96:13 Q. You mentioned that in your conversations

96:14 with Doug Ohlin regarding instructions that you

96:15 discussed the wallet card with him on those

96:16 occasions, did I remember that?

96:17 A. Right.

96:18 Q. Okay.

96:19 A. Now, I -- I want to make it clear,

96:20 this -- these weren't necessarily one-on-one

96:21 discussions, but discussions at a -- a meeting with

97:01 a group.

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97:02 Q. Okay. Who were the people that were in

97:03 the group?

97:04 A. It would have been military audiologists.

97:05 Q. Like yourself who were the head of some

97:06 program --

97:07 A. Um-hum.

97:08 Q. -- at a different installation?

97:09 A. Right.

97:10 Q. Okay. If you look at the wallet card,

97:11 beside the pictures, there is an image on the right

97:12 of the plug with the flange folded back on the

97:13 opposite end?

97:14 A. Correct.

97:15 Q. Did you ever discuss whether or not to

97:16 fold the flanges back on the opposite end of the

97:17 plug with Doug Ohlin?

97:18 A. I remember Doug Ohlin giving us

97:19 instruction on how to fit the earplug.

97:20 Q. What did he say?

97:21 A. And he -- he said if you have -- well, I

98:01 don't remember his exact words, but I remember, you

98:02 know, if you needed to, you could fold back the

98:03 flange on the earplug to get a good fit.

98:04 Q. And so, Doug Ohlin was telling the

98:05 program managers at the various installations in

98:06 the country that if they needed to fold back the

98:07 flanges on one side of the plug, they could do so

98:08 to get a good fit?

98:09 A. Yes.

98:13 - 99:20 Merkley, LTC John A. (2020-02-26) 1:07

98:13 Q. During his oral discussion of that Re: [98:13 to 99:20] Re: [98:13 to 99:11]

98:14 fitting procedure, did he limit that technique to Pltf Obj 602; 611 OVERRULED

98:15 any particular group of service members, or was it

98:16 agnostic as to who they were and what their ear

98:17 canal size was or anything like that?

98:18 A. I don't --

98:19 MR. BUCHANAN: Objection to form and

98:20 foundation.

98:21 THE WITNESS: Yeah, I don't -- I don't

99:01 remember it being specific to a particular group of

99:02 people.

99:03 BY MR. WASDIN:

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99:04 Q. So, as you recall, the instruction you

99:05 got from Doug Ohlin, it was if you need to, you can

99:06 fold back the flange to fit the plug, and he didn't

99:07 limit that to one particular size ear canal or

99:08 another?

99:09 A. Correct.

99:10 MR. BUCHANAN: Objection. Form.

99:11 BY MR. WASDIN:

99:12 Q. And those conversations, I think you

99:13 said, were happening in the '01 to '05 time period?

99:14 A. Right.

99:15 Q. And was the point of that conversation in

99:16 the group setting that the program managers at the

99:17 various installations would then take that

99:18 information and go back to their particular

99:19 facility and implement it?

99:20 A. Yes.

100:02 - 101:07 Merkley, LTC John A. (2020-02-26) 1:19

100:02 Q. You gave a lecture at the NHCA conference Re: [100:02 to 101:07] Re: [100:02 to 101:07]

100:03 last week, right? Pltf Obj 402; 403; 404; SUSTAINED

100:04 A. I did. Bolstering

100:05 Q. What was your topic?

100:06 A. My topic was just in time learning --

100:07 Q. You played --

100:08 A. -- and micro learning, hearing, yeah.

100:09 Q. You played a video of a guy named Elliott

100:10 Berger during your speech --

100:11 A. I did.

100:12 Q. -- am I remembering that right?

100:13 A. Yes.

100:14 Q. Who is Elliott Berger?

100:15 A. Elliott Berger is -- I think he is the

100:16 principal engineer at 3M at their test lab, hearing

100:17 protection testing lab.

100:18 Q. Do you know Elliott?

100:19 A. I do.

100:20 Q. How long have you known Mr. Berger?

100:21 A. I have -- well, I have known him -- I've

101:01 known of him for, I don't know, 20 years or so.

101:02 I've had more personal interactions with him in the

101:03 last eight years just as a member of the -- the

101:04 Council for Accreditation in Occupational Hearing

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101:05 Conservation and his work in different chapters and

101:06 regulations that go into the hearing conservation

101:07 manual, his work on the ANSI working group.

102:05 - 102:20 Merkley, LTC John A. (2020-02-26) 1:39

102:05 Q. I'll try -- let me ask the question again Re: [102:05 to 102:20] Re: [102:05 to 102:20]

102:06 just so we get a Q and A. But what are some of Pltf Obj 402; 403; 404; SUSTAINED

102:07 Mr. Berger's contributions to the national Bolstering

102:08 hearing -- conservation hearing that you're aware

102:09 of?

102:10 MR. BUCHANAN: I have the same objection.

102:11 Form and foundation.

102:12 THE WITNESS: Well, he's a well-known

102:13 figure in hearing conservation. He is the editor

102:14 of the noise manual. He's contributed to multiple

102:15 chapters on hearing conservation in the United

102:16 States and has been recognized at -- at the

102:17 National Hearing Conservation Association as such.

102:18 BY MR. WASDIN:

102:19 Q. Has he won awards for that?

102:20 A. He has.

103:08 - 104:07 Merkley, LTC John A. (2020-02-26) 1:05

103:08 Q. Do you know whether Mr. Berger has ever Re: [103:08 to 104:07] Re: [103:08 to 104:07]

103:09 worked with members of the military to help the Pltf Obj 402; 403; 404; SUSTAINED

103:10 military advance its hearing conservation mission? Bolstering

103:11 A. I have seen documents between he and Doug

103:12 Ohlin, but that's the extent of what I've -- what I

103:13 know about with regard to hearing pro- -- his

103:14 involvement in hearing protection in the military.

103:15 Q. Just based on the documents that you've

103:16 seen, was he working with Doug Ohlin on a

103:17 particular project?

103:18 A. I -- yes. I believe he was working

103:19 on -- with Doug Ohlin on this Combat Arms Earplug

103:20 project.

103:21 Q. Okay. Given what you know about

104:01 Mr. Berger and the contributions he's made to

104:02 national hearing conservation, does it surprise you

104:03 that Doug Ohlin would work with him to develop a

104:04 product for the military?

104:05 MR. BUCHANAN: Objection to form and

104:06 foundation.

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104:07 THE WITNESS: No.

105:04 - 107:05 Merkley, LTC John A. (2020-02-26) 2:05

105:04 Q. LTC Merkley, I want to go back to the Re: [105:04 to 107:05] Re: [105:04 to 107:05]

105:05 discussion we were having regarding your Pltf Obj 611 OVERRULED

105:06 communications with Doug Ohlin in the '01 to '05

105:07 time period regarding fitting the Combat Arms

105:08 Version 2.

105:09 A. Um-hum.

105:10 Q. I think you said these discussions would

105:11 take place at the National Hearing Conservation

105:12 Association?

105:13 A. No. They would take place usually at the

105:14 military audiology short course, which was a -- a

105:15 conference or a -- well, they -- they called it a

105:16 work -- a course of Army -- Army audiologists

105:17 would -- would come together and get instruction

105:18 from leadership, present presentations on things

105:19 that were happening in -- in the military, and

105:20 usually, we would get an update from the Hearing

105:21 Conservation Program on, you know, what -- how

106:01 things were going and, you know, what was -- what

106:02 was new that we needed to pay attention to.

106:03 Q. And at the time, you were the chief

106:04 audiologist at Fort Carson?

106:05 A. Correct. No, I'm sorry. Fort Drum.

106:06 Q. Fort Drum. Okay. Who else -- would you

106:07 have had peers that were the chief audiologists at

106:08 other installations --

106:09 A. Oh, yeah.

106:10 Q. -- that would also attend those meetings?

106:11 A. Right.

106:12 Q. Can you recall who else that would have

106:13 been your peers at other installations would have

106:14 been at the meetings with Doug Ohlin when he

106:15 discussed the flange fold?

106:16 A. I --

106:17 MR. BUCHANAN: Objection to the form.

106:18 THE WITNESS: Yeah, most of the Army

106:19 audiologists, senior audiologists down to junior

106:20 audiologists. I can't recall exactly who was

106:21 there, but usually the -- most of the military

107:01 audiologists. Not just in the Army, but across the

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107:02 Navy and the Air Force as well --

107:03 BY MR. WASDIN:

107:04 Q. Okay.

107:05 A. -- would attend that meeting.

107:21 - 110:21 Merkley, LTC John A. (2020-02-26) 2:24

107:21 Q. Okay. Once you would have gotten that Re: [107:21 to 110:21] Re: [107:21 to 110:21]

108:01 guidance at the audiology short course, was the Pltf Obj Foundation; 602; 

611 OVERRULED

108:02 expectation that you would then take it back to

108:03 Fort Drum and implement it with the folks who fit

108:04 earplugs there?

108:05 A. Yes.

108:06 MR. BUCHANAN: Objection to form.

108:07 BY MR. WASDIN:

108:08 Q. And was that true for all of the

108:09 installation managers who were there, they were

108:10 going to take that guidance back to whatever

108:11 installation they were responsible for and

108:12 implement it?

108:13 MR. BUCHANAN: Objection. Foundation and

108:14 form.

108:15 THE WITNESS: Yes.

108:16 BY MR. WASDIN:

108:17 Q. Okay. When -- when you got back to Fort

108:18 Drum at some point after that, did you, indeed,

108:19 train the -- who are the folks at Fort Drum or

108:20 elsewhere that would actually be fitting individual

108:21 service members with earplugs?

109:01 A. Well, we would -- we trained all of our

109:02 technicians.

109:03 Q. Technicians, that's what I was looking

109:04 for.

109:05 A. Yeah. So, our hearing technicians, but

109:06 we also trained -- we conducted training for unit

109:07 hearing program -- at -- at the time, they were

109:08 called Hearing Conservation Program officers. I'm

109:09 sure there's a reference to that in the DA-PAM, but

109:10 every company is supposed to have a Hearing

109:11 Conservation Program officer, and a part of that,

109:12 their training would be how to fit hearing

109:13 protection.

109:14 Q. Okay. So, I think I understand. In one

Page 38 of 81

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109:15 bucket are the technicians who would fit individual

109:16 service members as they were distributing hearing

109:17 protection?

109:18 A. Correct.

109:19 Q. And then in the other one, bucket, you

109:20 mentioned, it was a unit Hearing Conservation

109:21 Program officer who would be with a -- a group of

110:01 service members going forward and have that

110:02 experience?

110:03 A. Right.

110:04 Q. Okay. You trained both of those groups

110:05 of people?

110:06 A. Yes.

110:07 Q. And when you trained the technicians at

110:08 Fort Drum, did you include the information you

110:09 received from Doug Ohlin regarding folding back the

110:10 flanges as needed to achieve a good fit?

110:11 A. Yes.

110:12 MR. BUCHANAN: Objection to form.

110:13 BY MR. WASDIN:

110:14 Q. Did you limit your instruction to any

110:15 particular size ear canal?

110:16 MR. BUCHANAN: Objection to form.

110:17 THE WITNESS: No. I don't -- I don't

110:18 recall that.

110:19 BY MR. WASDIN:

110:20 Q. Okay. Is that also true for the unit

110:21 Hearing Conservation Program officers, you gave

111:01 - 111:09 Merkley, LTC John A. (2020-02-26) 0:23

111:01 them the instruction that they could fold back the

111:02 flanges as needed to achieve a good fit?

111:03 MR. BUCHANAN: Objection to form.

111:04 THE WITNESS: Yes.

111:05 BY MR. WASDIN:

111:06 Q. And did you limit that instruction by

111:07 size of ear canal?

111:08 MR. BUCHANAN: Same objection.

111:09 THE WITNESS: No.

119:19 - 120:07 Merkley, LTC John A. (2020-02-26) 1:37

119:19 Q. Okay. Well, then fast forwarding to the

119:20 time period when you are in charge of audiology at

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119:21 Fort Drum. When in a service member's career, I

120:01 guess, would they receive a piece of hearing

120:02 protection and then be fit with it?

120:03 A. We fit at Fort Drum any individuals when

120:04 they were coming to the installation, so

120:05 we -- we provided hearing protection fit or hearing

120:06 health education and hearing protection fitting

120:07 at in-processing to the installation.

120:12 - 121:11 Merkley, LTC John A. (2020-02-26) 1:46

120:12 Q. Okay. And is -- when you say when they

120:13 arrive at the facility, is that sort of like the

120:14 first stop after basic training?

120:15 A. No. It depends. It -- it could be right

120:16 after basic training. It may be that they're

120:17 PCS'ing.

120:18 Q. Okay.

120:19 A. Having -- changing duty stations and

120:20 moving from one installation to Fort Drum. Then

120:21 when they get to that installation, there's an

121:01 in-processing part, and part of that in-processing

121:02 includes a medical in-processing, and they would

121:03 receive a hearing test, get fitted with hearing

121:04 protection and a small class on hearing

121:05 conservation.

121:06 Q. Would the fitting with hearing protection

121:07 as part of the intake process be done by the

121:08 technicians we talked about earlier?

121:09 A. Either the technicians or the audiologist

121:10 on site, yes.

121:11 Q. Okay.

121:18 - 122:11 Merkley, LTC John A. (2020-02-26) 1:41

121:18 Q. Okay. So, some are brand new in the

121:19 military; some may have been there for a

121:20 while --

121:21 A. Right.

122:01 Q. -- but whenever you get a transition of

122:02 your class or duty station -- regardless of how

122:03 long you have been in the Army, when you show up at

122:04 Fort Drum, while you were there, one of the first

122:05 things that happened was the medical exam that

122:06 included fitting hearing protection?

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122:07 A. Correct.

122:08 Q. And was that done for all service

122:09 members?

122:10 A. Everybody that came through

122:11 in-processing.

122:12 - 123:12 Merkley, LTC John A. (2020-02-26) 1:42

122:12 Q. Was there a training component during Re: [122:12 to 123:12] Re: [122:12 to 123:12]

122:13 that intake on how to fit themselves with earplugs Pltf Obj 611 OVERRULED

122:14 going forward?

122:15 A. Yes.

122:16 Q. And would -- was it your expectation that

122:17 the audiologist or the technicians would have given

122:18 the service members the same fitting tips that you

122:19 had provided them?

122:20 A. Right. Yes.

122:21 Q. And that would include that if they

123:01 needed to, they could fold back the flanges?

123:02 MR. BUCHANAN: Objection to form and

123:03 foundation.

123:04 THE WITNESS: If -- if they were fitted

123:05 with a Combat Arms Earplug. We did not routinely

123:06 fit the Combat Arms Earplug for in-processing.

123:07 BY MR. WASDIN:

123:08 Q. Got it. If their earplug was the Combat

123:09 Arms Version 2, their training would have included

123:10 the option to fold back the flanges as needed to

123:11 get a good fit?

123:12 A. Yes.

123:16 - 123:21 Merkley, LTC John A. (2020-02-26) 0:14

123:16 Q. Looking at the wallet card, which was

123:17 marked as Exhibit 9, the second bullet at the

123:18 bottom mentions the option to fold back the flanges

123:19 on the plug, and then there's an image of it,

123:20 right?

123:21 A. Correct.

124:07 - 124:16 Merkley, LTC John A. (2020-02-26) 1:32

124:07 Q. On the wallet card, there is a reference

124:08 to very large ear canals. So, it says for very

124:09 large ear canals, fold opposing plug back?

124:10 A. Correct.

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124:11 Q. Where did the -- that language relating

124:12 to very large ear canals come from?

124:13 A. I don't know.

124:14 Q. And I guess I'm asking because you said

124:15 earlier that the guidance you got was agnostic as

124:16 to ear canal size, right?

124:18 - 124:18 Merkley, LTC John A. (2020-02-26) 0:00

124:18 THE WITNESS: Right.

125:03 - 125:06 Merkley, LTC John A. (2020-02-26) 0:13

125:03 Q. Do you know if the military did its own Re: [125:03 to 125:06] OVERRULED

125:04 analysis of what size ear canals were likely to

Def Obj Improper counter

125:05 benefit from a fold of the flange?

125:06 A. I'm not -- not that I recall.

125:07 - 125:09 Merkley, LTC John A. (2020-02-26) 0:02

125:07 Q. The military drafted the wallet card Re: [125:07 to 125:09] Re: [125:07 to 125:09]

125:08 though, right? Pltf Obj 611 SUSTAINED

125:09 A. Yes.

125:14 - 125:18 Merkley, LTC John A. (2020-02-26) 0:06

125:14 MAJOR EVANS: And can we just clarify

125:15 real quick, this is the Army's wallet card,

125:16 correct? Not the --

125:17 THE WITNESS: It is the -- it is the

125:18 Army's wallet card, yeah.

126:01 - 126:08 Merkley, LTC John A. (2020-02-26) 0:14

126:01 Q. I should do better about that. The Re: [126:01 to 126:08] Re: [126:01 to 126:08]

126:02 wallet card that we marked as Exhibit -- Pltf Obj 602; incomplete OVERRULED

126:03 A. Nine. COMPLETENESS 

OBJECTION

126:04 Q. -- 9 is -- was created by USACHPPM for

WITHDRAWN, 3/11/2021

126:05 use in the Army?

126:06 A. Correct.

126:07 Q. Was this wallet card distributed to

126:08 individual service members?

126:11 - 126:13 Merkley, LTC John A. (2020-02-26) 0:07

126:11 THE WITNESS: Individual service members

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126:12 that came through the Hearing Conservation Program,

126:13 if -- if the clinic had them available, then yes.

126:15 - 126:18 Merkley, LTC John A. (2020-02-26) 0:10

126:15 Q. Okay. This would be in addition to

126:16 whatever training they received by the technician

126:17 or audiologist when they were being fit?

126:18 A. Right.

126:19 - 126:21 Merkley, LTC John A. (2020-02-26) 0:09

126:19 Q. Other than the wallet card, did the Army

126:20 have other training materials for the Combat Arms

126:21 Version 2 that it would distribute to soldiers?

127:07 - 127:14 Merkley, LTC John A. (2020-02-26) 1:32

127:07 THE WITNESS: You know, I -- I just don't

127:08 recall. I -- I think there was a -- a single sheet

127:09 of paper, but I don't -- you know, like an

127:10 8-and-a-half-by-11 fact sheet, but I don't recall

127:11 using it a lot to just hand out --

127:12 BY MR. WASDIN:

127:13 Q. Okay.

127:14 A. -- to individuals.

127:19 - 129:02 Merkley, LTC John A. (2020-02-26) 1:56

127:19 Q. LTC Merkley, I'll hand you what we just

127:20 marked as Exhibit 11. Is this the single fact

127:21 sheet you were talking about?

128:01 A. I believe so, yes.

128:02 Q. Okay. Other than the wallet card and the

128:03 one-page fact sheet we marked as Exhibit 11, are

128:04 you aware of any other training materials that

128:05 would have been physically distributed to

128:06 individual service members?

128:07 MR. BUCHANAN: Objection to the form of

128:08 the question --

128:09 THE WITNESS: Not -- not that I can

128:10 recall.

128:11 MR. BUCHANAN: -- and foundation.

128:12 BY MR. WASDIN:

128:13 Q. Have you ever seen instructions for the

128:14 Combat Arms Version 2 that were authored by Aearo

128:15 or 3M?

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128:16 A. I have not.

128:17 Q. When you were responsible for training

128:18 technicians and hearing conservation officers on

128:19 how to fit the Combat Arms Version 2, you weren't

128:20 relying on any Aearo or 3M instructions; is that

128:21 fair?

129:01 MR. BUCHANAN: Objection to form.

129:02 THE WITNESS: Yes.

129:04 - 129:10 Merkley, LTC John A. (2020-02-26) 0:13

129:04 Q. Do you know whether the Army ever used

129:05 any instructions or training materials provided by

129:06 Aearo or 3M to train soldiers on how to use the

129:07 Combat Arms Version 2?

129:08 A. I -- I don't know.

129:09 Q. You've never seen it?

129:10 A. I -- I haven't seen it, no.

129:14 - 130:04 Merkley, LTC John A. (2020-02-26) 1:32

129:14 Q. Yes. Let's switch gears a little bit

129:15 here. In addition to the testing that we looked at

129:16 briefly from June of 1999 that was done by Georges

129:17 Garinther, --

129:18 A. Um-hum.

129:19 Q. -- are you aware if the military has done

129:20 other testing on the Combat Arms Version 2 over

129:21 time?

130:01 A. I -- I believe they have. I recall a

130:02 couple of reports --

130:03 Q. Okay.

130:04 A. -- on them, but I --

137:06 - 138:12 Merkley, LTC John A. (2020-02-26) 2:33

137:06 LTC Merkley, Exhibit 13 is a PowerPoint

137:07 presentation that was given by LTC Lorraine Babeu,

137:08 U.S. Army Research Laboratory, Human Research and

137:09 Engineering Directorate at Aberdeen, right?

137:10 A. Um-hum.

137:11 Q. Do you know LTC Babeu?

137:12 A. I -- I do. Not really well, but I -- she

137:13 was an active duty audiologist when -- when I first

137:14 came into the Army.

137:15 Q. What were her principal responsibilities,

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137:16 if you know? Did she work at ARL?

137:17 A. I believe she -- well, she was working at

137:18 ARL as -- in a utilization tour following her Ph.D.

137:19 program at -- I believe she went through the

137:20 University of Florida.

137:21 Q. If you look in the bottom left-hand

138:01 corner of the first slide, there's a tiny date on

138:02 it. You probably need a magnifier, but I think it

138:03 says March 18th, 2005?

138:04 A. Correct.

138:05 Q. So, it looks like LTC Babeu is testing

138:06 level-dependent hearing protection devices at

138:07 Aberdeen in -- at least by 2005?

138:08 A. Um-hum.

138:09 Q. And if you flip the page to page 2, the

138:10 bottom slide shows that her testing included

138:11 the -- the Combat Arms Version 2 dual-ended plug?

138:12 A. Correct.

138:13 - 138:15 Merkley, LTC John A. (2020-02-26) 0:03

138:13 Q. Have you ever reviewed testing done by Re: [138:13 to 138:15] OVERRULED

138:14 LTC Babeu before?

Def Obj Improper counter

138:15 A. No.

138:21 - 143:04 Merkley, LTC John A. (2020-02-26) 4:49

138:21 Q. And it says, Overview Hearing Protection Re: [138:21 to 143:04] Re: [138:21 to 143:04]

139:01 Study. Infan- -- infantry soldiers over the course Pltf Obj 702; 602; 611; OVERRULED

139:02 of nine days wore the Combat Arms Earplug, yellow Foundation

139:03 and green side, and the Peltor ComTac earmuff while

139:04 firing the M4 Rifle.

139:05 On each day, soldiers had

139:06 pre-and-post-distortion product otoacoustic

139:07 emission (DPOAE) measurements recorded during the

139:08 weapons firing task.

139:09 Soldiers fired 54 each day.

139:10 Noise level at the ear was 155 dBP.

139:11 Did I read that right?

139:12 A. Yes.

139:13 Q. What is, if you know,

139:14 pre-and-post-distortion product otoacoustic

139:15 emission measurements?

139:16 A. Well --

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139:17 MR. BUCHANAN: Objection to form and

139:18 foundation.

139:19 THE WITNESS: So, distortion product

139:20 otoacoustic emissions is a type of test of cochlear

139:21 function. A healthy cochlea will produce an

140:01 otoacoustic emission, and so for this, they would

140:02 test otoacoustic emissions prior to shooting, fire

140:03 the weapon, and then test distortion

140:04 product -- distortion product otoacoustic emissions

140:05 following.

140:06 BY MR. WASDIN:

140:07 Q. Wearing the Combat Arms after --

140:08 A. After -- wearing the Combat Arms Earplug

140:09 while firing, yes.

140:10 Q. Does otoacoustic emission testing tell

140:11 you something about whether or not the

140:12 person -- whether or not the noise that they're

140:13 being exposed to is damaging the cochlea?

140:14 MR. BUCHANAN: Objection to form and

140:15 foundation. Overbroad.

140:16 THE WITNESS: It can, yes.

140:17 BY MR. WASDIN:

140:18 Q. At a high level, I think this is kind of

140:19 an oversimplification, but if the otoacoustic

140:20 emissions are the same before and after the noise

140:21 exposure, then there hasn't been damage to the

141:01 cochlea?

141:02 MR. BUCHANAN: Objection to form and

141:03 foundation.

141:04 THE WITNESS: Correct.

141:05 BY MR. WASDIN:

141:06 Q. If you go to page 11, at the bottom,

141:07 there's a slide that says, Results, do you see

141:08 that?

141:09 A. Yes.

141:10 Q. And there's two colors on the graph. One

141:11 says CAE-level-dependent-before, and the next one

141:12 says CAE-level-dependent-after, right?

141:13 A. Correct.

141:14 Q. And then if you flip the page to 12,

141:15 there's a second result slide similar, but it's for

141:16 the non-level dependent. So, it's

141:17 CAE-non-level-dependent-before and then

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141:18 CAE-non-level-dependent-after, right?

141:19 A. Correct.

141:20 Q. So, does this look like LTC Babeu tested

141:21 both the green and the yellow end of the Combat

142:01 Arms Earplug?

142:02 MR. BUCHANAN: Objection. Foundation.

142:03 THE WITNESS: Yes.

142:04 BY MR. WASDIN:

142:05 Q. And so, she would measure a service

142:06 member's hearing prior to noise exposure, put the

142:07 earplug in, have them shoot a particular weapon 54

142:08 times and then measure the otoacoustic emission

142:09 after that exposure?

142:10 MR. BUCHANAN: Objection. Misstates the

142:11 document.

142:12 THE WITNESS: That's correct. That's

142:13 what it sounds like.

142:14 BY MR. WASDIN:

142:15 Q. So, if you look at -- start on page 12,

142:16 the -- the green end, the non-level-dependent end,

142:17 it looks like, although there's minor variation,

142:18 the DP amplitude is basically the same or a little

142:19 higher after the exposures to noise than before?

142:20 MR. BUCHANAN: I'm sorry, what page are

142:21 you on?

143:01 MR. WASDIN: Twelve.

143:02 BY MR. WASDIN:

143:03 Q. Do you see that?

143:04 A. Yes.

143:11 - 145:02 Merkley, LTC John A. (2020-02-26) 1:24

143:11 Q. I guess let me just ask a different Re: [143:11 to 145:02] Re: [143:11 to 145:02]

143:12 question then. I just don't understand the Pltf Obj 702; 602; 611; SUSTAINED as to

143:13 testing.

Foundation

143:11-17; otherwise 

OVERRULED

143:14 What do you want to see on an otoacoustic

143:15 emissions test to determine whether or not there

143:16 was cochlear damage?

143:17 MR. BUCHANAN: Objection. Foundation.

143:18 BY MR. WASDIN:

143:19 Q. You can put that document aside. I just

143:20 want to know, do you want the DP amplitude to be

143:21 higher, or lower, or about the same?

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144:01 A. To determine if -- if any damage has been

144:02 done, --

144:03 Q. I guess, yeah.

144:04 A. -- you would want to see the same pre

144:05 versus post.

144:06 Q. Okay. And then looking back at the

144:07 exhibit that I just told you to put aside, I'm

144:08 sorry about that, --

144:09 A. Oh.

144:10 Q. -- but on both the level-dependent end,

144:11 the yellow end, and the green end, the

144:12 non-level-dependent end, does it look like the

144:13 values are about the same before and after?

144:14 MR. BUCHANAN: Objection. Form. Vague,

144:15 about.

144:16 THE WITNESS: Yes, they appear to be the

144:17 same or -- well --

144:18 BY MR. WASDIN:

144:19 Q. Okay.

144:20 A. -- relatively close.

144:21 Q. Okay. So, this is 2005 testing done by

145:01 Lorraine Babeu at Aberdeen Proving Grounds?

145:02 A. Correct.

145:12 - 145:18 Merkley, LTC John A. (2020-02-26) 0:20

145:12 Q. LTC Merkley, I have just given you a

145:13 document marked Exhibit 14, which is a test report

145:14 bearing the insignia of the Army Research

145:15 Laboratory and titled, Modeling of Acoustic

145:16 Pressure Waves in Level-Dependent Earplugs, do you

145:17 see that?

145:18 A. Yes.

145:19 - 146:07 Merkley, LTC John A. (2020-02-26) 0:22

145:19 Q. The authors are James DeSpirito and Mary

145:20 Binseel, right?

145:21 A. Correct.

146:01 Q. Who is James DeSpirito?

146:02 A. I don't know.

146:03 Q. Who is Mary Binseel?

146:04 A. I don't know.

146:05 Q. Okay. Have you ever seen this report

146:06 before?

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146:07 A. I -- no.

146:08 - 146:15 Merkley, LTC John A. (2020-02-26) 0:21

146:08 Q. If you flip to page 1, there's an Re: [146:08 to 146:15] Re: [146:08 to 146:15]

146:09 Introduction, and it describes that they're going

Pltf Obj Foundation OBJECTION WITHDRAWN,

146:10 to perform testing on the dual-ended Combat Arms 3/11/2021

146:11 Version 2 essentially, do you see that?

146:12 A. Yes.

146:13 Q. There's a picture of the dual-ended

146:14 Combat Arms Version 2 in the middle of the page?

146:15 A. Right.

148:10 - 149:05 Merkley, LTC John A. (2020-02-26) 1:06

148:10 Q. Yeah, just -- yeah, it's a habit. Re: [148:10 to 149:05] Re: [148:10 to 149:05]

148:11 Looking at this data, what it tells us is, at least

Pltf Obj Foundation OBJECTION WITHDRAWN,

148:12 in the Army's testing in September of 2008, how 3/11/2021

148:13 much peak pressure reduction the Combat Arms

148:14 Earplug provides at various levels of impulses

148:15 between 125 and 186.91, do you see that?

148:16 A. Okay. Yes, I see that.

148:17 Q. And just looking at it, does it appear to

148:18 be providing nonlinear protection as the decibel of

148:19 the impulse increases?

148:20 MR. BUCHANAN: Objection to form.

148:21 THE WITNESS: Yes.

149:01 BY MR. WASDIN:

149:02 Q. The higher the impulse level, the higher

149:03 the peak pressure reduction for the Combat Arms

149:04 plug in this testing, right?

149:05 A. Correct.

151:01 - 151:21 Merkley, LTC John A. (2020-02-26) 1:08

151:01 Q. When -- so, look back at the Just the

151:02 Facts doc- -- keep your place there on that

151:03 document for a second, but look back at Just the

151:04 Facts document. Do you know -- this is Exhibit 11.

151:05 Do you know who authored the Just the Facts

151:06 document on the Combat Arms Version 2?

151:07 A. The -- I -- I don't know who the author

151:08 was. It was put out by the Army Public Health

151:09 Center, the Army Hearing Program or the Army

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151:10 Hearing Conservation Program, so it was Doug Ohlin

151:11 and his staff.

151:12 Q. If you go down to the column on the left,

151:13 the bottom left of the first page title -- titled,

151:14 Protection Available, --

151:15 A. Um-hum.

151:16 Q. -- about midway through that paragraph it

151:17 says, the nonlinearity begins at about 110 dBP and

151:18 increases with increasing peak pressure level. At

151:19 190 dBP, there's an overall peak reduction of 25

151:20 dB, do you see that?

151:21 A. Yes.

153:03 - 154:15 Merkley, LTC John A. (2020-02-26) 1:04

153:03 Q. In any event, if -- whatever that Re: [153:03 to 154:15] Re: [153:03 to 154:15]

153:04 publication says, if you go back to the Army Pltf Obj 611 SUSTAINED

153:05 Research Lab testing that we had, that chart

153:06 out --

153:07 A. Um-hum.

153:08 Q. -- it doesn't go up to 190 in this

153:09 particular test, but, indeed, you do see that as

153:10 you approach 190, 186.91, the Combat Arms is

153:11 providing actually a little bit more than

153:12 that --

153:13 A. Correct.

153:14 Q. -- 30.43?

153:15 MR. BUCHANAN: Objection to leading.

153:16 THE WITNESS: Correct. Sorry. I'm

153:17 speaking over you.

153:18 BY MR. WASDIN:

153:19 Q. Yeah. And so, the testing that's being

153:20 done in October of 2008, you know, confirms this

153:21 statement about 190 dB peak in the Just the Facts

154:01 document?

154:02 MR. BUCHANAN: Objection to the leading.

154:03 Foundation.

154:04 THE WITNESS: Yes.

154:05 BY MR. WASDIN:

154:06 Q. And then if you go on, that same sentence

154:07 in the Just the Facts says, testing at a U.S.

154:08 military facility found this nonlinear earplug

154:09 protective up to 190 dB peak, do you see that?

154:10 A. Yes.

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154:11 Q. And then if you flip the page, you can

154:12 see that the citation there, the first one is to

154:13 that Dan Johnson study that we looked at a long

154:14 time ago?

154:15 A. Right.

155:03 - 156:03 Merkley, LTC John A. (2020-02-26) 1:51

155:03 Q. What I wanted to ask you about was, this Re: [155:03 to 156:03] Re: [155:03 to 156:03]

155:04 statement that testing at a U.S. military facility Pltf Obj 602; 611 SUSTAINED

155:05 found this nonlinear earplug protective up to 190

155:06 dB peak, that's a statement that's included in the

155:07 Army's Just the Facts document, right?

155:08 MR. BUCHANAN: Objection to form.

155:09 THE WITNESS: Yes.

155:10 BY MR. WASDIN:

155:11 Q. Yeah. And it's -- the source of that

155:12 representation is the Dan Johnson study that he did

155:13 for the Army in 1995?

155:14 MR. BUCHANAN: Objection to the form.

155:15 BY MR. WASDIN:

155:16 Q. Or '96?

155:17 A. It appears to be, yes.

155:18 Q. And so, this is an Army interpretation of

155:19 an Army study that the testing at a U.S. military

155:20 facility found this nonlinear earplug protective up

155:21 to 190 dB peak?

156:01 MR. BUCHANAN: Objection to form.

156:02 Argumentative. Foundation.

156:03 THE WITNESS: Yes.

156:05 - 157:01 Merkley, LTC John A. (2020-02-26) 1:56

156:05 Q. Now, when you go to the 2008 study that Re: [156:05 to 157:01] Re: [156:05 to 157:01]

156:06 we were just talking about, this is the Exhibit 14, Pltf Obj Foundation OVERRULED

156:07 the Mary Binseel document?

156:08 A. Um-hum.

156:09 Q. If you look -- and we just said this, but

156:10 although it shows that it -- it is providing

156:11 protection up at least to 186.91 dB here, right?

156:12 A. Correct.

156:13 Q. But it's providing 30 dBs of reduction,

156:14 and the output of that is that it would reduce 186

156:15 dB peak down to 156.48, right?

156:16 A. Correct.

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156:17 MR. BUCHANAN: Objection to form.

156:18 BY MR. WASDIN:

156:19 Q. Okay. 156.48 is still over the 140 dB

156:20 limit that you and I talked about earlier as a sort

156:21 of baseline standard safe impulse limit, right?

157:01 A. Correct.

158:04 - 158:10 Merkley, LTC John A. (2020-02-26) 0:13

158:04 Q. And then when you look at the Just the Re: [158:04 to 158:10] Re: [158:04 to 158:10]

158:05 Facts document, kind of tying together the -- the Pltf Obj 602 OVERRULED

158:06 questions we've been talking about, that reduction

158:07 is actually a little better than what they cite

158:08 there. They're citing only a 25 dB reduction at

158:09 190, right?

158:10 A. Correct.

158:18 - 159:09 Merkley, LTC John A. (2020-02-26) 1:36

158:18 Q. In the Just the Facts document, the Army Re: [158:18 to 159:09] Re: [158:18 to 159:09]

158:19 is saying that at 190 dB peak, there's an overall Pltf Obj 602; 611; 

foundation OVERRULED

158:20 peak reduction of only a 25 dB, right?

158:21 A. Correct.

159:01 Q. So, that would take you down to 165?

159:02 A. Correct.

159:03 Q. And they're saying that that's

159:04 demonstrative that the Combat Arms Version 2 is

159:05 protective up to 190 dB, right?

159:06 MR. BUCHANAN: Objection. Form and

159:07 foundation.

159:08 THE WITNESS: That's -- that's what it

159:09 says in the document.

161:08 - 161:12 Merkley, LTC John A. (2020-02-26) 0:12

161:08 Q. So, unless there's some change to fit, Re: [161:08 to 161:12] Re: [161:08 to 161:12]

161:09 you'd expect the whatever protection it's providing Pltf Obj 602; 611; 702 SUSTAINED

161:10 at 190 to be the same on the first exposure and the

161:11 101st exposure?

161:12 A. Correct.

162:01 - 162:04 Merkley, LTC John A. (2020-02-26) 0:09

162:01 Q. So, Exhibit 3 is a testing report done by

162:02 a variety of individuals, one of which Brian Hobbs

162:03 I think you said you knew?

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162:04 A. Right.

162:07 - 162:18 Merkley, LTC John A. (2020-02-26) 1:05

162:07 Q. This says, Warfighter Interface Division,

162:08 Battlespace Acoustics Branch. Do you know what

162:09 that is?

162:10 A. I don't. From their -- I believe it's

162:11 the Air Force Research Lab or a branch or a group

162:12 of that laboratory.

162:13 Q. If you open this test report, we talked a

162:14 little bit about the first page of this,

162:15 but -- mine is stapled -- if you'd go to page 5.

162:16 So, on the left, you've got a photo of

162:17 somebody doing a real ear attenuation test, right?

162:18 A. Yes.

163:01 - 164:02 Merkley, LTC John A. (2020-02-26) 1:10

163:01 Q. On page 5, there's a table of data that's

163:02 titled Real -- Real Ear Attenuation Test Data (ANSI

163:03 S12.6-1997, Method A) for TH?

163:04 A. Correct.

163:05 Q. And then if you look in the tactical

163:06 headset or TH column on the left, there's a variety

163:07 of different protectors here, but if you go down to

163:08 the Passive subsection, you'll see the CAEP green

163:09 tip and the CAEP yellow tip, do you see those?

163:10 A. Yes.

163:11 Q. This testing that was done in October

163:12 2008 indicates that for the green end of the Combat

163:13 Arms, the NRR mean minus 1 standard deviation is

163:14 21, right?

163:15 A. Correct.

163:16 Q. That's using the Method A --

163:17 A. Um-hum.

163:18 Q. -- ANSI standard, right?

163:19 A. Correct.

163:20 Q. And then for the yellow end, it indicates

163:21 that the NRR mean minus one standard deviation is

164:01 6, right?

164:02 A. Correct.

164:03 - 164:12 Merkley, LTC John A. (2020-02-26) 1:30

164:03 Q. Do you know when a hearing

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164:04 protector -- protection device is labeled for

164:05 civilian use, do they use the Method A standard to

164:06 do that?

164:07 A. Well, the -- the noise reduction rating

164:08 label on a hearing protector is not measured to

164:09 S12.6-1997.

164:10 Q. It's measured to the 1974 standard,

164:11 right?

164:12 A. Correct.

166:10 - 167:08 Merkley, LTC John A. (2020-02-26) 1:47

166:10 Q. All right. So, looking at the chart that Re: [166:10 to 167:08] Re: [166:10 to 167:08]

166:11 is in the October 2008 Air Force testing, when you Pltf Obj 602 OVERRULED

166:12 go to two standard deviations, they list the Combat

166:13 Arms Earplug green tip as a 15 NRR, do you see

166:14 that?

166:15 A. Um-hum.

166:16 Q. And then they list the Combat Arms

166:17 Earplug yellow tip as a 3 NRR, do you see that?

166:18 A. Correct.

166:19 Q. So, as of at least October 2008, the

166:20 gov- -- the Air Force, excuse me, has REAT, Real

166:21 Ear Attenuation Test data on both ends of the

167:01 Combat Arms; is that correct?

167:02 MR. BUCHANAN: Objection to form and

167:03 foundation.

167:04 THE WITNESS: Correct.

167:05 BY MR. WASDIN:

167:06 Q. And they have used that data to calculate

167:07 their own NRR for the product?

167:08 A. Correct.

168:02 - 168:11 Merkley, LTC John A. (2020-02-26) 1:34

168:02 Q. Okay. If you flip to page 19, there's a

168:03 section titled 3.3, Discussion, at the top, do you

168:04 see that?

168:05 A. Um-hum.

168:06 Q. And it starts out by saying, the

168:07 continuous noise protection of all devices tested

168:08 was reasonable and should provide for a safe

168:09 exposure level for the average user in many noise

168:10 environments up to 105 dB, do you see that?

168:11 A. Yes.

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169:04 - 170:01 Merkley, LTC John A. (2020-02-26) 1:59

169:04 Q. Okay. Flipping the page to page Re: [169:04 to 170:01] Re: [169:04 to 170:01]

169:05 20 -- geez -- it goes on to say, the passive in the Pltf Obj 602 OVERRULED

169:06 ear tactical headset, ITE TH work as they should in

169:07 that continuous noise settings provide more

169:08 continuous noise attenuation than the impulse noise

169:09 settings. Table 1 illustrates that the Combat Arms

169:10 Earplug green, intended for continuous noise

169:11 protection, provides very good attenuation and is

169:12 readily distinguished from the Combat Arms P yellow

169:13 intended for impulse noise protection setting, did

169:14 I read that right?

169:15 A. Yes.

169:16 Q. So, as of October of 2008, this list of

169:17 authors doing an Air Force study of the Combat Arms

169:18 determined that it provides very good attenuation

169:19 in continuous noise?

169:20 MR. BUCHANAN: Objection to form and

169:21 foundation.

170:01 THE WITNESS: Yes.

170:03 - 171:13 Merkley, LTC John A. (2020-02-26) 1:18

170:03 Q. If you go to page 21, in addition to

170:04 conducting testing on continuous noise, it looks

170:05 like they also did some air blast overpressure

170:06 measurements for impulse noise, right?

170:07 A. (Nodding head yes.) Yes.

170:08 Q. And if you flip the page to page 22 and

170:09 23, there are images of how they conducted some of

170:10 that testing, do you see those?

170:11 A. Um-hum. Yes.

170:12 Q. Figure 17, in particular, is labeled as

170:13 195 dB blast, do you see that?

170:14 A. Yes.

170:15 Q. And it looks like what they've done is

170:16 put some manequin heads on the ground and exploded

170:17 some sort of explosive within a couple of feet of

170:18 the heads, is that fair?

170:19 A. Yes.

170:20 Q. 195 decibels, are there -- what are these

170:21 weapons, if any, in the military arsenal that would

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171:01 create 195 decibel impulse peak?

171:02 MR. BUCHANAN: Objection to the form.

171:03 THE WITNESS: I'm -- I'm not aware of any

171:04 that create 195 decibel peak.

171:05 BY MR. WASDIN:

171:06 Q. It looks like to get that high, you have

171:07 to basically have an explosion happen a few feet

171:08 away from you.

171:09 MR. BUCHANAN: Objection to form.

171:10 THE WITNESS: I --

171:11 BY MR. WASDIN:

171:12 Q. Okay.

171:13 A. I -- I guess, yeah.

171:14 - 172:11 Merkley, LTC John A. (2020-02-26) 1:56

171:14 Q. Okay. Do you know any that Re: [171:14 to 172:11] Re: [171:14 to 172:11]

171:15 create -- weapons in the military arsenal that

Pltf Obj 611 OBJECTION WITHDRAWN,

171:16 create 190 dB peak? 3/11/2021

171:17 A. That approximate --

171:18 Q. What are those?

171:19 A. -- 190. Some of the shoulder-fired

171:20 weapon systems.

171:21 Q. Like shoulder fired --

172:01 A. Like the AT4, the 5 -- I'm not sure about

172:02 the law, and then the MAA -- the MAAWS, the

172:03 multipurpose anti-armor, anti-personnel weapon

172:04 system, or the Carl Gustaf if you want to -- it's a

172:05 shoulder-fire recoilless rifle.

172:06 Q. Is that a -- do a lot of people use that

172:07 weapon in the Army?

172:08 A. No. Up until recently, they were only

172:09 fielded in the special operations community, but

172:10 they're currently being fielded now into

172:11 conventional forces.

173:05 - 173:09 Merkley, LTC John A. (2020-02-26) 0:13

173:05 Q. You've examined service members in Iraq? Re: [173:05 to 173:09] Re: [173:05 to 173:09]

173:06 A. Yes. Pltf Obj 602; 611; 

foundation OVERRULED

173:07 Q. Do you know how common it would be for

173:08 somebody in a combat setting to come across 190

173:09 decibel impulse peak?

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173:15 - 174:02 Merkley, LTC John A. (2020-02-26) 0:21

173:15 A. From my experience. Well, most of the

173:16 IEDs --

173:17 Q. Yeah.

173:18 A. -- would -- would create that level

173:19 of -- of noise. So, when I was in Iraq, it was

173:20 very common, --

173:21 Q. From IED --

174:01 A. -- and I was in Iraq from 2006 through

174:02 200- -- the end of 2006 to 2007.

175:02 - 176:11 Merkley, LTC John A. (2020-02-26) 1:28

175:02 Q. If you flip in this testing report over Re: [175:02 to 176:11] Re: [175:02 to 176:11]

175:03 to page 26, there's a section for the Results of Pltf Obj 602; 611; 

foundation OVERRULED

175:04 the impulse noise testing these authors performed,

175:05 do you see that?

175:06 A. Um-hum.

175:07 Q. It reads, over 100 individual blasts were

175:08 completed on 13 devices over a four-day period.

175:09 Impulse noise attenuation measurements an

175:10 estimated -- as estimated by insertion loss, were

175:11 recorded at two levels of peak pressure, 165 dB and

175:12 195 dB, and then it says it's going to present the

175:13 data in these tables, do you see that?

175:14 A. Um-hum.

175:15 Q. Going over to page 27, there's a table

175:16 that lists the data for the impulse -- the

175:17 insertion loss in response to both 165 dB and 195

175:18 dB explosions, right?

175:19 A. (Nodding head yes.)

175:20 Q. Do you see that?

175:21 A. Correct.

176:01 Q. And it lists it for both the green end

176:02 and the yellow end of the Combat Arms, right?

176:03 A. Yes.

176:04 Q. We don't have to go through them all, but

176:05 in summary, the Air Force had test data on the

176:06 performance of the Combat Arms Earplug, both ends

176:07 of it, at both 165 and 195 dB as of at least

176:08 October 2008?

176:09 MR. BUCHANAN: Objection to form and

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176:10 foundation.

176:11 THE WITNESS: Yes.

176:13 - 176:16 Merkley, LTC John A. (2020-02-26) 0:08

176:13 Q. So, however it performed, whatever Re: [176:13 to 176:16] Re: [176:13 to 176:16]

176:14 protection it provided at those impulses, that data Pltf Obj 602; 611; 

foundation OBJECTION WITHDRAWN,

176:15 is in this test report? 3/11/2021

176:16 A. Yes.

177:06 - 178:05 Merkley, LTC John A. (2020-02-26) 1:47

177:06 Q. Did you, while in Iraq, observe service Re: [177:06 to 178:05] Re: [177:06 to 178:05]

177:07 members who had used the Combat Arms Version 2 and Pltf Obj 602; 611; 

foundation; OVERRULED

177:08 been exposed to noise and then those who had not 702; MIL G7

177:09 worn hearing protection and been exposed to noise?

177:10 A. Yes.

177:11 Q. And did the Combat Arms Version 2 protect

177:12 service members in Iraq?

177:13 MR. BUCHANAN: Objection to form and

177:14 foundation.

177:15 THE WITNESS: I -- I won't be specific on

177:16 the Combat Arms Version 2, but hearing protection

177:17 use did protect the individuals.

177:18 BY MR. WASDIN:

177:19 Q. But you're including the Combat Arms?

177:20 A. Including the Combat Arms Earplug.

177:21 Q. So, what you observed in Iraq was service

178:01 members who did not use hearing protection, had

178:02 greater rates of threshold shifts than those who

178:03 used hearing protection, including the Combat Arms

178:04 Version 2?

178:05 A. Yes.

179:20 - 181:01 Merkley, LTC John A. (2020-02-26) 1:27

179:20 This is an email chain dated October 6,

179:21 2005. Subject RE: Success story regarding the

180:01 Combat Arms Earplug, right?

180:02 A. Correct.

180:03 Q. It was sent from Leanne Cleveland to

180:04 Kathy Gates, Kevin Hannah and a variety of other

180:05 people in the military, including, if you go all of

180:06 the way down to the bottom, you, do you see that?

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180:07 A. Yes.

180:08 Q. Who is Leanne Cleveland?

180:09 A. She's an audiologist in the Army; active

180:10 duty.

180:11 Q. Who is Kathy Gates?

180:12 A. Kathy Gates, she -- she is -- was an Army

180:13 audiologist at this time serving in -- at the

180:14 Office of the Surgeon General. I'm not sure she

180:15 was a consultant to Army audiology or to the

180:16 Surgeon General for Army audiology, but I -- I

180:17 don't know if she was a consultant at this time.

180:18 Q. I don't want to ask you about every

180:19 single person here on the cc: line, but are these,

180:20 generally, folks that were involved in military or

180:21 Army hearing conservation?

181:01 A. Yes, all -- all of them.

181:07 - 182:14 Merkley, LTC John A. (2020-02-26) 1:21

181:07 Q. If you just go to this first -- it's a Re: [181:07 to 182:14] Re: [181:07 to 182:14]

181:08 very long chain, and I'll tell you that I think it Pltf Obj 403; 602; 

foundation; SUSTAINED

181:09 duplicates itself a few times on the way through, 702; 802 MIL G7

181:10 so I don't want to attempt to track it. But if you

181:11 just go to the first one, it looks like this is an

181:12 email from Leanne Cleveland specifically at least

181:13 to Kathy Gates and Kevin Hannah, copying the rest

181:14 of the Army audiology community and sharing two

181:15 success stories, right?

181:16 A. Right. Two?

181:17 Q. It says --

181:18 A. Yes. Yes, two. Okay.

181:19 Q. I'm going to read the first one.

181:20 A. Okay.

181:21 Q. Several months ago, I saw an O6 Brigade

182:01 Commander for his post-deployment OIF audiometric

182:02 evaluation. What's -- what's the post-deployment

182:03 OIF audiometric evaluation?

182:04 A. Well, the post-deployment hearing test.

182:05 So, the unit is returning from a deployment, and

182:06 they get a hearing test to determine if -- has

182:07 there been any change in their hearing.

182:08 Q. And what is an O6 Brigade Commander?

182:09 A. An 06 is a Colonel level. A Brigade

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182:10 Commander is generally a full-bird Colonel.

182:11 Q. And can we tell anything from the time

182:12 period about where he was likely returning from?

182:13 A. Well, it says he was returning from

182:14 Operation Iraqi Freedom, OIF.

182:19 - 185:11 Merkley, LTC John A. (2020-02-26) 2:24

182:19 Q. Okay. So, this is somebody who had been Re: [182:19 to 185:11] Re: [182:19 to 185:11]

182:20 in combat basically -- Pltf Obj 403; 602; 

foundation; SUSTAINED

182:21 A. The -- 702; 802 MIL G7

183:01 Q. -- the O6 Brigade Commander --

183:02 A. Yes.

183:03 Q. -- that was being evaluated? It goes on

183:04 to say, he told me that he hadn't heard of the CAE

183:05 plugs until he was in theatre. He did not know

183:06 what they looked like, but he was determined to get

183:07 them for his entire brigade. He inquired with some

183:08 local Iraqi supply company and ended up purchasing

183:09 what he thought were CAE plugs, but in reality,

183:10 they were only foam plugs.

183:11 Finally, he made some calls back to Fort

183:12 Hood and was able to get his staff to order them

183:13 here and then ship them out to the brigade. They

183:14 were finally received by the soldiers in Iraq

183:15 at -- over four months after they initially

183:16 deployed.

183:17 The COL, the Colonel, told me that he was

183:18 sitting in the back of his HMWVV with his new CAE

183:19 plugs in his ears for the first time when he

183:20 experienced his first IED blast in close range. He

183:21 said that his soldiers in the HMWVV had just been

184:01 grumbling to him about his insistence that they all

184:02 wore their CAE plugs, but that they were all very

184:03 glad that they had their CAEs after the blast, and

184:04 they all wore them every day afterwards. By the

184:05 way, the Colonel had no hearing loss and no

184:06 tinnitus upon redeployment, did I read that right?

184:07 A. Yes.

184:08 Q. Is it -- we talked just a couple of

184:09 minutes ago about a -- basically how loud an IED

184:10 blast would be at close range, so it sounds like

184:11 this is a service member who experienced a

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184:12 close-range IED blast while wearing the Combat Arms

184:13 Earplug?

184:14 A. Correct.

184:15 Q. And what Leanne Cleveland is

184:16 determining -- determining is that after that

184:17 event, while wearing those plugs, he had no hearing

184:18 loss and no tinnitus?

184:19 A. Correct.

184:20 Q. Is that -- I mean, 190 dB, are there many

184:21 hearing protection devices available to the Army,

185:01 passive earplugs, that would protect against 190 dB

185:02 with no hearing loss and no tinnitus?

185:03 MR. BUCHANAN: Objection. Form, vague.

185:04 At what range?

185:05 BY MR. WASDIN:

185:06 Q. At close range?

185:07 A. Are there a lot of earplugs?

185:08 Q. Right.

185:09 A. I -- I would expect that any of the

185:10 earplugs that were available at this time, if they

185:11 were in use, would have -- have been protective.

185:16 - 185:19 Merkley, LTC John A. (2020-02-26) 0:11

185:16 Q. And this is telling us that the Combat Re: [185:16 to 185:19] Re: [185:16 to 185:19]

185:17 Arms Earplug was protective for that exposure? Pltf Obj 403; 602; 

foundation; SUSTAINED

185:18 MR. BUCHANAN: Objection to form. 702; 802 MIL G7

185:19 THE WITNESS: For this, yes.

185:21 - 187:09 Merkley, LTC John A. (2020-02-26) 2:52

185:21 Q. The second success story she shares is, Re: [185:21 to 187:09] Re: [185:21 to 187:09]

186:01 at a recent PDHRA Post Deployment Health Pltf Obj 403; 602; 

foundation; SUSTAINED

186:02 Reassessment Survey session -- 702; 802 MIL G7

186:03 A. Where --

186:04 Q. Number 2.

186:05 A. Okay. I'm sorry.

186:06 Q. -- I asked several redeploying 1CAV

186:07 soldiers the following questions re: the CAE plug

186:08 at the request of Aearo. What is a Post Deployment

186:09 Health Reassessment Survey session?

186:10 A. The -- well, every -- every soldier that

186:11 deploys, when they return, that -- they're required

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186:12 to complete a health assessment, a post deployment

186:13 health assessment --

186:14 Q. Basically --

186:15 A. -- and -- and now, this was the Post

186:16 Deployment Health Reassessment, so I believe that's

186:17 90 days post deployment. So, they come back. They

186:18 -- they do their Post Deployment Health Assessment,

186:19 and then there's a -- a reassessment.

186:20 Q. What is a 1CAV soldier?

186:21 A. First calvary division, so CAV is a Cav.

187:01 Q. And then later, I'm about to read the

187:02 sentence, but it references an SPC 50 cal gunner.

187:03 What is that?

187:04 A. Where is that?

187:05 Q. The next sentence.

187:06 A. Oh, the S -- like this -- I -- I believe

187:07 what they're referring to is a specialist, the rank

187:08 of specialist who is a 50 -- who was a 50, a gunner

187:09 on a 50-caliber machine gun.

187:15 - 188:07 Merkley, LTC John A. (2020-02-26) 1:43

187:15 Q. Leanne Cleveland in this success story Re: [187:15 to 188:07] Re: [187:15 to 188:07]

187:16 goes on to state, I wish all soldiers believed in Pltf Obj 403; 602; 

foundation; SUSTAINED

187:17 the merit of the Combat Arms Earplug like this SPC 702; 802 MIL G7

187:18 50 cal gunner does. (I especially liked his

187:19 comment that he wouldn't change anything about the

187:20 Combat Am -- Combat Arms Earplug -- plug or the

187:21 case, because they "worked for 205 convoys.") Did

188:01 I read that right?

188:02 A. Yes.

188:03 Q. What is a -- what does it mean to work

188:04 for a 205 convoy?

188:05 A. I -- I read that to mean that it worked

188:06 for 205 convoys. The individual com- -- completed

188:07 205 convoys during their tour.

188:08 - 188:20 Merkley, LTC John A. (2020-02-26) 1:17

188:08 Q. I asked you earlier about, you know, Re: [188:08 to 188:20] Re: [188:08 to 188:20]

188:09 performance on shot one versus performance on shot Pltf Obj 403; 602; 

foundation; SUSTAINED

188:10 101, and you said you thought they'd be the same 702; 802 MIL G7

188:11 unless there was an issue with the fit, right?

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188:12 MR. BUCHANAN: Objection to the form.

188:13 THE WITNESS: Correct.

188:14 BY MR. WASDIN:

188:15 Q. This is a report from a 50 cal gunner,

188:16 who had been employed into Iraq, that says they

188:17 worked for 205 separate convoys, right?

188:18 MR. BUCHANAN: Objection to form.

188:19 THE WITNESS: That's what it appears to

188:20 say, yes.

191:20 - 192:03 Merkley, LTC John A. (2020-02-26) 0:11

191:20 Q. So, you had personally observed examples

191:21 where service members in Iraq were exposed to large

192:01 impulses that damaged their hearing in one way or

192:02 another?

192:03 A. Yes.

195:06 - 195:19 Merkley, LTC John A. (2020-02-26) 0:23

195:06 Q. Yeah. I think you just said it way Re: [195:06 to 195:19] Re: [195:06 to 195:19]

195:07 better than I attempted to, but the essence of it Pltf Obj 403; foundation; 

MIL SUSTAINED

195:08 is when you were in Iraq, most of the cases of G7

195:09 hearing-related injuries you saw stemmed from not

195:10 wearing hearing protection?

195:11 A. Correct.

195:12 MR. BUCHANAN: Objection to form.

195:13 BY MR. WASDIN:

195:14 Q. And that those service members who you

195:15 treated who had worn hearing protection, including

195:16 the Combat Arms Version 2, tended to not have any

195:17 hearing loss?

195:18 MR. BUCHANAN: Objection to form.

195:19 THE WITNESS: Correct.

197:01 - 197:11 Merkley, LTC John A. (2020-02-26) 0:15

197:01 Q. Okay. Have you ever personally used the Re: [197:01 to 197:11] Re: [197:01 to 197:11]

197:02 Combat Arms Version 2? Pltf Obj 403; 702; MIL G7 SUSTAINED

197:03 A. Yes.

197:04 Q. Did it work for you?

197:05 A. Yes.

197:06 Q. Did you need to fold the flanges back to

197:07 get a good fit?

197:08 A. I didn't.

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197:09 Q. So, you wore it without the flanges

197:10 folded back, and it worked?

197:11 A. Yes.

197:17 - 198:06 Merkley, LTC John A. (2020-02-26) 1:48

197:17 Q. How often did you wear it in service? Re: [197:17 to 198:06] Re: [197:17 to 198:06]

197:18 A. As -- as long as I had it. Pltf Obj 403; 702; MIL G7 SUSTAINED

197:19 Q. What time period did you have it?

197:20 A. So, I had that earplug -- well, I -- I

197:21 got my first set in -- right around 2000 when they

198:01 were just starting to come out in the military.

198:02 It was at the -- I believe the MASC, the

198:03 military audiology short course, so it may have

198:04 been 2001, because I -- I don't remember if I went

198:05 in 2000. In 2001 definitely, and then up until

198:06 the -- the new version came out --

198:13 - 198:17 Merkley, LTC John A. (2020-02-26) 0:12

198:13 Q. So, you wore the Version 2, the Re: [198:13 to 198:17] Re: [198:13 to 198:17]

198:14 dual-ended version, during your deployment in Iraq, Pltf Obj 403; 702; MIL G7 SUSTAINED

198:15 right?

198:16 MR. BUCHANAN: Objection to form.

198:17 THE WITNESS: Yes.

199:09 - 199:10 Merkley, LTC John A. (2020-02-26) 0:09

199:09 Q. You fired weapons with it in? Re: [199:09 to 199:10] Re: [199:09 to 199:10]

199:10 A. Yes. Pltf Obj 403; 702; MIL G7 SUSTAINED

200:07 - 200:10 Merkley, LTC John A. (2020-02-26) 0:05

200:07 Q. There's also a triple-flange earplug

200:08 that's a linear passive earplug that the Army has

200:09 available to it, right?

200:10 A. Right.

204:13 - 204:20 Merkley, LTC John A. (2020-02-26) 0:13

204:13 Q. Okay. You were given, when you first

204:14 joined the National Guard, a triple-flange earplug?

204:15 A. Correct.

204:16 Q. Is that what you refer to when you talk

204:17 about the triple flange in the military?

204:18 A. The triple -- yes.

204:19 Q. Yeah. It's a linear device?

204:20 A. Correct.

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205:05 - 207:02 Merkley, LTC John A. (2020-02-26) 2:42

205:05 Q. Do you know what the DD 2216 form is?

205:06 A. Yes.

205:07 Q. What is that?

205:08 A. It's an audiogram.

205:09 Q. Is that --

205:10 A. It's the form that the surveillance or

205:11 monitoring audiogram is documented on.

205:12 Q. Does every -- is this a -- this is the

205:13 surveillance audiogram that's given to service

205:14 members --

205:15 A. Correct.

205:16 Q. -- every year?

205:17 A. Across -- across the DoD.

205:18 Q. And it's -- the output of the

205:19 surveillance audiogram is then memorialized on DD

205:20 form 2216 for that person?

205:21 A. Correct.

206:01 Q. One of the pieces of information that's

206:02 included on a DD 2216 form is the type of personal

206:03 hearing protection used. Are you familiar with

206:04 that?

206:05 A. Yes.

206:06 Q. And then it's a -- a box that lists a

206:07 variety of options?

206:08 A. Correct.

206:09 Q. What --

206:10 (Whereupon, Merkley Deposition Exhibit

206:11 18, DD 2216 Form, marked for identification.)

206:12 BY MR. WASDIN:

206:13 Q. I've redacted out -- I just want to

206:14 basically understand what the box is used for, but

206:15 do you see the box on this particular DD 2216 that

206:16 lists the type of hearing protection used?

206:17 A. Yes.

206:18 Q. Let me get to my copy of it. There are a

206:19 variety of options that could be filled in, right?

206:20 A. (Nodding head yes.)

206:21 Q. Who -- who fills in that box?

207:01 A. Generally, it's the technician that

207:02 completes the test.

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207:21 - 209:15 Merkley, LTC John A. (2020-02-26) 1:05

207:21 Q. Okay. The box provides seven options, Re: [207:21 to 209:15] Re: [207:21 to 209:15]

208:01 right? Pltf Obj 602; 403; 

foundation OVERRULED; 403

208:02 A. Correct.

OBJECTION WITHDRAWN, 

3/11/2021

208:03 Q. And if you look at the box -- what

208:04 Exhibit Number did I just give you?

208:05 A. Eighteen.

208:06 Q. If you look at Exhibit 18, this box is

208:07 checked as 6 for this person on this date, right?

208:08 A. Correct.

208:09 Q. And 6 corresponds to, Other?

208:10 A. Correct.

208:11 Q. And then if you go over to the left,

208:12 there's a Remarks column, and it notes, Other HPD:

208:13 Combat Arms Earplug, do you see that?

208:14 A. Yes.

208:15 Q. So, if the person is using a Combat Arms

208:16 Earplug, they check, Other, 6, and then reference

208:17 that in the notes?

208:18 A. Correct.

208:19 Q. If the person was using the triple

208:20 flange, the conventional passive product you talked

208:21 about, would they check 2 for triple flange?

209:01 MR. BUCHANAN: Objection.

209:02 THE WITNESS: They would.

209:03 BY MR. WASDIN:

209:04 Q. If they were using single flange, they

209:05 would check 1, right?

209:06 A. Correct.

209:07 Q. For 3, the hand-formed earplug, is that a

209:08 foam-rolled plug?

209:09 A. Yes.

209:10 Q. Four is ear canal caps, right?

209:11 A. Correct.

209:12 Q. Five is noise muffs, right?

209:13 A. Correct.

209:14 Q. And then 7 is none?

209:15 A. Correct.

210:04 - 210:12 Merkley, LTC John A. (2020-02-26) 0:21

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210:04 Q. If none is check, what does it mean? Re: [210:04 to 210:12] OVERRULED

210:05 A. Well, it means -- it means -- it may mean

Def Obj Improper counter

210:06 that they just weren't fitted on that day, that

210:07 they're not reporting any hearing protection used.

210:08 It doesn't mean that they don't have it.

210:09 Q. It means they're not --

210:10 A. It means --

210:11 Q. -- reporting using it?

210:12 A. -- they're not reporting using it.

211:09 - 212:14 Merkley, LTC John A. (2020-02-26) 1:05

211:09 I -- I also want to clarify one thing.

211:10 When it -- when it reads Combat Arms Earplug --

211:11 Q. Um-hmm.

211:12 A. -- here, this -- there is only one

211:13 choice, and the Combat Arms -- I understand the

211:14 Combat Arms Earplug is a propriety name, but at the

211:15 time the DOEHRS system was developed, Combat Arms

211:16 Earplug referred to a nonlinear-type device.

211:17 Q. Um-hmm.

211:18 A. So, now, if you read Combat Arms Earplug,

211:19 it -- it may be any of the approved nonlinear

211:20 hearing protection devices --

211:21 Q. Understood.

212:01 A. -- that are fielded in the Army or the

212:02 DoD.

212:03 Q. So, the other HBD Combat Arms Earplug

212:04 reference on here is like a drop-down box or

212:05 something for the technician to check?

212:06 A. Yes.

212:07 Q. And they would check that?

212:08 A. They would check that. So yeah, they're

212:09 not typing in Combat Arms Earplug.

212:10 Q. Okay. And it's your understanding they

212:11 would select that drop-down for Combat Arms Earplug

212:12 if the person was wearing any nonlinear hearing

212:13 protection?

212:14 A. Right.

212:17 - 213:02 Merkley, LTC John A. (2020-02-26) 0:16

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212:17 Q. For None, for 7 now just to clarify that Re: [212:17 to 213:02] Re: [212:17 to 213:02]

212:18 one, the reasons why someone's DD Form 2216 might Pltf Obj 602; 403; 

foundation OVERRULED

212:19 say none include a self-reported they weren't

212:20 wearing hearing protection, right?

212:21 A. Right.

213:01 MR. BUCHANAN: Objection to form.

213:02 THE WITNESS: Right.

213:04 - 213:16 Merkley, LTC John A. (2020-02-26) 1:46

213:04 Q. Or that they weren't fitted with a

213:05 product that day, and the technician put a 7 down?

213:06 A. Correct.

213:07 Q. If they weren't fitted that day for their

213:08 annual audiogram, what are the -- like why wouldn't

213:09 they be fitted at every --

213:10 A. Well, you know, not -- not every clinic

213:11 fits service members when they come in for

213:12 that --

213:13 Q. Got it.

213:14 A. -- appointment. They might fit them at a

213:15 different educational event or at some other

213:16 location.

213:17 - 214:04 Merkley, LTC John A. (2020-02-26) 0:19

213:17 Q. The military -- we talked about this

213:18 earlier, and I was going to come back to it, so now

213:19 I'm going to do it. The military 40-501

213:20 Pamphlet --

213:21 A. Um-hum.

214:01 Q. -- we talked, contains criteria for when

214:02 you should use either single or double protection

214:03 or just avoid a noise entirely?

214:04 A. Correct.

214:16 - 215:14 Merkley, LTC John A. (2020-02-26) 1:45

214:16 Q. Okay. So, the military -- the Army,

214:17 excuse me, has standards on when service members

214:18 should use a single earplug, like the Combat Arms

214:19 Version 2, or where they, instead, should use

214:20 double-hearing protection, right?

214:21 A. Yes.

215:01 Q. Double-hearing protection, what does that

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215:02 mean?

215:03 A. It means that they're using an -- an

215:04 earplug and another form of hearing protection,

215:05 usually a noise muff.

215:06 Q. So, an earplug in the ear, and then a

215:07 muff on top of that?

215:08 A. Correct.

215:09 Q. If you look at page -- starting on page

215:10 5, section 6.2, Protector Requirements, I believe

215:11 that's the beginning of this section that talks

215:12 about what types of noise merit double-hearing

215:13 protection, am I right about that?

215:14 A. Yes.

216:19 - 217:11 Merkley, LTC John A. (2020-02-26) 1:31

216:19 Q. 6.2 c. in the middle of the page is a

216:20 section titled, Soldiers in Training, Noncombat or

216:21 Nonindustrial Scenarios, right?

217:01 A. Yes.

217:02 Q. And then the first guidance under that

217:03 section is for steady-state noise levels, right?

217:04 A. Correct.

217:05 Q. If you go down to (2), there's a section

217:06 for impulse noise levels there?

217:07 A. Um-hum.

217:08 Q. And impulse noise levels would include

217:09 like weapons fired and things of that nature,

217:10 right?

217:11 A. Right.

218:09 - 219:21 Merkley, LTC John A. (2020-02-26) 1:13

218:09 Q. Okay. And what they say is that for less

218:10 than 140 dB peak, personnel may wear hearing

218:11 protection, if desired?

218:12 A. Correct.

218:13 Q. So, that means up to 139, you don't even

218:14 need hearing protection?

218:15 MR. BUCHANAN: Objection to form.

218:16 BY MR. WASDIN:

218:17 Q. Or it's not required?

218:18 MR. BUCHANAN: Objection.

218:19 THE WITNESS: It's not required.

218:20 BY MR. WASDIN:

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218:21 Q. It's not required, so --

219:01 A. Correct. For -- for impulsive noise.

219:02 Q. For impulse noise, yeah. For impulse

219:03 noises 140 to 165 dB peak, the requirement is that

219:04 you have to wear hearing protection, right?

219:05 A. Correct.

219:06 Q. And that would include an earplug, like

219:07 the Combat Arms Version 2?

219:08 A. Yes.

219:09 Q. Or any other earplug in the -- that the

219:10 Army has approved, right?

219:11 A. Correct.

219:12 Q. But for greater than 165 dB, but less

219:13 than or equal to the Z, to the curve Z per mil

219:14 standard 1474 D, personnel must wear earplugs in

219:15 combination with noise muffs or a noise attenuation

219:16 helmet, right?

219:17 A. Correct.

219:18 Q. So, the general rule is if you're going

219:19 to be exposed to impulse peaks above 165, you need

219:20 to wear double protection?

219:21 A. Correct.

223:10 - 223:15 Merkley, LTC John A. (2020-02-26) 0:14

223:10 Q. You talked about when you were in Iraq Re: [223:10 to 223:15] Re: [223:10 to 223:15]

223:11 that for those folks that you treated that had Pltf Obj 611 SUSTAINED

223:12 hearing loss, it was typically because of nonuse of

223:13 hearing protection devices?

223:14 MR. BUCHANAN: Objection to form.

223:15 THE WITNESS: Right.

225:21 - 226:20 Merkley, LTC John A. (2020-02-26) 1:40

225:21 Q. LTC Merkley, I just have a few more Re: [225:21 to 226:20] Re: [225:21 to 226:20]

226:01 questions before we break for lunch, the first of Pltf Obj 403; 702; MIL G7 SUSTAINED

226:02 which relates to your own use of the Combat Arms

226:03 Earplug Version 2.

226:04 A. Okay.

226:05 Q. I think you told me that when you used

226:06 the Combat Arms Version 2, you did not need to roll

226:07 back the flanges in order to achieve a proper fit?

226:08 MR. BUCHANAN: Objection to form.

226:09 THE WITNESS: Correct.

226:10 BY MR. WASDIN:

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226:11 Q. When you used the Combat Arms Version 2,

226:12 were you able to achieve a good fit?

226:13 MR. BUCHANAN: Objection to form.

226:14 THE WITNESS: Yes.

226:15 BY MR. WASDIN:

226:16 Q. And during the course of whatever time

226:17 you used them, were you able to keep that fit with

226:18 the Combat Arms Version 2?

226:19 MR. BUCHANAN: Objection to form.

226:20 THE WITNESS: Yes.

227:08 - 227:14 Merkley, LTC John A. (2020-02-26) 0:12

227:08 Q. That's -- the idea that a premolded Re: [227:08 to 227:14] Re: [227:08 to 227:14]

227:09 earplug, you know, may lose its seal is reported in Pltf Obj 602; 611; 702 SUSTAINED

227:10 the academic literature in hearing conservation,

227:11 right?

227:12 MR. BUCHANAN: Objection. Foundation and

227:13 form.

227:14 THE WITNESS: Yes.

228:01 - 228:14 Merkley, LTC John A. (2020-02-26) 1:53

228:01 Q. You were aware when you were a military Re: [228:01 to 228:14] Re: [228:01 to 228:14]

228:02 audiologist or an Army audiologist that preformed Pltf Obj 403; 602 SUSTAINED

228:03 earplugs of any variety could loosen in a wearer's

228:04 ear, right?

228:05 MR. BUCHANAN: Objection to the

228:06 leadingness.

228:07 THE WITNESS: Yes.

228:08 BY MR. WASDIN:

228:09 Q. And on occasions when a preformed earplug

228:10 does lose its seal, you found that to be

228:11 perceptible because you could hear ambient noise

228:12 louder than you did when you had a seal, right?

228:13 MR. BUCHANAN: Objection to form.

228:14 THE WITNESS: Yes.

228:16 - 228:20 Merkley, LTC John A. (2020-02-26) 0:12

228:16 Q. Did you have any problem properly Re: [228:16 to 228:20] Re: [228:16 to 228:20]

228:17 inserting the CAEv2 into your ear when you used it? Pltf Obj 403; 702; MIL G7 OVERRULED

228:18 MR. BUCHANAN: Objection to form to the

228:19 personal use.

228:20 THE WITNESS: No.

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229:01 - 230:06 Merkley, LTC John A. (2020-02-26) 1:03

229:01 Q. The last thing I want to ask you about is Re: [229:01 to 230:06] Re: [229:01 to 230:06]

229:02 we talked a little bit about experimenter fit Pltf Obj 611 OVERRULED

229:03 versus user fit in the testing of hearing

229:04 protection devices; do you remember that?

229:05 A. Yes.

229:06 Q. And we said that experimenter fit was

229:07 definitely the standard -- the fitting methodology

229:08 for the 1974 ANSI standard, right?

229:09 A. Correct.

229:10 Q. That's the standard that's used during

229:11 NRR labeling testing?

229:12 A. Yes.

229:13 Q. Are you aware that the results achieved

229:14 when an experimenter fits an earplug are often

229:15 greater than when a user fits the plug themselves?

229:16 MR. BUCHANAN: Objection to form.

229:17 THE WITNESS: Yes.

229:18 BY MR. WASDIN:

229:19 Q. Is that something that is discussed at

229:20 the NHCA conference from time to time?

229:21 A. Yes.

230:01 Q. For that reason, NRR ratings tend to

230:02 overestimate the amount of attenuation any

230:03 particular person would get with a product, right?

230:04 MR. BUCHANAN: Objection. Form and

230:05 foundation.

230:06 THE WITNESS: Yes.

231:13 - 232:14 Merkley, LTC John A. (2020-02-26) 1:38

231:13 Q. Some of the data we looked at on the

231:14 yellow end included real ear attenuation data for

231:15 the yellow end of the product, right?

231:16 A. Um-hum.

231:17 Q. And it shows some levels of attenuation

231:18 at various frequencies even on the yellow end,

231:19 right?

231:20 A. Correct.

231:21 MR. BUCHANAN: Objection to form and

232:01 foundation.

232:02 BY MR. WASDIN:

232:03 Q. Were you generally aware during your time

232:04 as an Army audiologist that the yellow end did

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232:05 provide some level of attenuation --

232:06 MR. BUCHANAN: Objection to form.

232:07 THE WITNESS: Yes.

232:08 BY MR. WASDIN:

232:09 Q. -- even for lower-level sounds?

232:10 A. Yes.

232:11 Q. You didn't think that it let one hundred

232:12 percent of all ambient sound come through?

232:13 MR. BUCHANAN: Objection to the leading.

232:14 THE WITNESS: Correct.

233:15 - 234:06 Merkley, LTC John A. (2020-02-26) 1:32

233:15 Is it correct, sir, that you're at the

233:16 Army Hearing Conservation Program office today?

233:17 A. It's the Army Hearing Program Office.

233:18 Q. Okay. And is the Army -- is that also

233:19 called Program 51?

233:20 A. It is, yes.

233:21 Q. Okay. And that's within another group

234:01 called the Occupational and Environmental Medicine

234:02 Group?

234:03 A. Not -- not currently. It falls

234:04 under -- the directorate is the clinical public

234:05 health and epidemiology directorate, so the

234:06 directorates have changed.

235:15 - 235:20 Merkley, LTC John A. (2020-02-26) 0:13

235:15 Q. Okay. Am I correct, sir, you -- you

235:16 served as a clinical audiologist for several years

235:17 and in several different settings and then have

235:18 separately held positions where I'll say more

235:19 policy based, is that fair?

235:20 A. Yes.

235:21 - 236:05 Merkley, LTC John A. (2020-02-26) 1:30

235:21 Q. Okay. Could you kind of identify for us

236:01 your windows when you had clinical experience?

236:02 A. Clinical experience initially from 2000

236:03 to -- well, really all of the way through 2015 when

236:04 I moved to the Defense Hearing Center of

236:05 Excellence.

238:02 - 238:12 Merkley, LTC John A. (2020-02-26) 0:22

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238:02 Q. Okay. You were telling us about your

238:03 time in Iraq.

238:04 A. Um-hum.

238:05 Q. I believe you spent about a year there?

238:06 A. I spent 13 months in Iraq.

238:07 Q. And those years again?

238:08 A. 2006/'07.

238:09 Q. And were you attached to a particular

238:10 brigade -- brigade there?

238:11 A. I was attached to the 28th Combat Support

238:12 Hospital.

238:13 - 239:08 Merkley, LTC John A. (2020-02-26) 1:09

238:13 Q. And how large a group does the 28th

238:14 Combat Support Hospital support?

238:15 A. Like how large is the organization?

238:16 Q. No. I was asking more in terms of the

238:17 soldiers that you were, you know, assigned to

238:18 supporting, how -- in terms of troop count?

238:19 A. Oh, we -- we conducted split operations

238:20 in Iraq, covered Baghdad and Tallil and Mosul.

238:21 The -- the split operations were in Mosul at first.

239:01 I don't remember, I wasn't -- I think up in Mosul.

239:02 I thought they moved down to Tallil, but I may be

239:03 wrong on that. I spent all of my time in Baghdad,

239:04 and we supported all coalition forces in and

239:05 around -- well, in Iraq.

239:06 Q. And at its peak, or at least when you

239:07 were there, tens of thousands of forces?

239:08 A. Yes.

329:01 - 329:01 Merkley, LTC John A. (2020-02-26) 0:01

329:01 THE WITNESS: Correct. Re: [329:01 to 329:01] Re: [329:01 to 329:01]

Def Obj Improper Counter DEFER RULING

379:14 - 379:17 Merkley, LTC John A. (2020-02-26) 0:11

379:14 THE WITNESS: I was not. Re: [379:14 to 379:17] Re: [379:14 to 379:17]

379:15 BY MR. BUCHANAN:

Def Obj Improper Counter DEFER RULING

379:16 Q. Are you aware the company discontinued it

379:17 the next week?

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434:02 - 434:13 Merkley, LTC John A. (2020-02-26) 0:27

434:02 Q. Hearing Center of Excellence. You looked

434:03 at some DoD materials that talk about hearing loss

434:04 being preventable in the military, do you remember

434:05 those?

434:06 A. Yes.

434:07 Q. I think you and I talked earlier about

434:08 ways to prevent, or at least the 40-501

434:09 regulations, on how someone should approach noise

434:10 to give themselves the best chance of preventing

434:11 hearing loss, do you remember those discussions we

434:12 had?

434:13 A. Yes.

435:08 - 435:21 Merkley, LTC John A. (2020-02-26) 0:23

435:08 Q. Some levels of noise you can protect

435:09 yourself against with a single-hearing protection

435:10 device, right?

435:11 A. Yes.

435:12 Q. Some levels of noise are high enough that

435:13 you would need two separate hearing protection

435:14 devices together, right?

435:15 A. Yes.

435:16 Q. In order to prevent hearing loss, right?

435:17 A. Yes.

435:18 Q. And some noises are so high that the only

435:19 way to prevent hearing loss is to either limit your

435:20 time in them or not encounter them at all, right?

435:21 A. Correct.

436:03 - 436:09 Merkley, LTC John A. (2020-02-26) 0:11

436:03 Q. So, when we say hearing loss is Re: [436:03 to 436:09] Re: [436:03 to 436:09]

436:04 preventable, we mean with one, with multiple Pltf Obj 611; foundation; 

702 OVERRULED

436:05 hearing protection devices or by just by avoiding

436:06 the noise in the first place, right?

436:07 MR. BUCHANAN: Objection to the form and

436:08 foundation.

436:09 THE WITNESS: Correct.

436:11 - 436:17 Merkley, LTC John A. (2020-02-26) 0:15

436:11 Q. The materials you reviewed with Re: [436:11 to 436:17] Re: [436:11 to 436:17]

436:12 Mr. Buchanan did not say that all hearing losses Pltf Obj 611 SUSTAINED

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436:13 are preventable in the military by wearing the

436:14 Combat Arms Version 2 on its own, right?

436:15 MR. BUCHANAN: Objection to form and

436:16 foundation.

436:17 THE WITNESS: Correct.

439:12 - 439:17 Merkley, LTC John A. (2020-02-26) 0:19

439:12 Q. In the Just the Facts document the Army

439:13 says, at 190 dB, there's an overall peak reduction

439:14 of 25 dB. Testing at a U.S. military facility

439:15 found this nonlinear earplug protective up to 190

439:16 dB. Do you remember that?

439:17 A. Yes.

440:06 - 441:01 Merkley, LTC John A. (2020-02-26) 1:35

440:06 Q. Okay. So, when the Army was authoring Re: [440:06 to 441:01] Re: [440:06 to 441:01]

440:07 the Just the Facts document, the Army had Pltf Obj 602; 611 SUSTAINED

440:08 determined that testing at a U.S. military facility

440:09 found this nonlinear earplug, the Combat Arms

440:10 Earplug, protective up to 190 dB?

440:11 MR. BUCHANAN: Objection to form.

440:12 THE WITNESS: Yes.

440:13 BY MR. WASDIN:

440:14 Q. That's what the document says. And then

440:15 ten years later, or nine years later, the exact

440:16 same statement is in a 3M advertisement on the

440:17 product, right?

440:18 A. Yes.

440:19 Q. And, indeed, if you look at the 3M ad,

440:20 there's a citation on the end of that sentence,

440:21 too, and it's to the Dan Johnson blast study?

441:01 A. To the study, yes.

441:02 - 441:08 Merkley, LTC John A. (2020-02-26) 0:21

441:02 Q. So, what 3M is doing in the ad is just Re: [441:02 to 441:08] Re: [441:02 to 441:08]

441:03 repeating the Army's own interpretation of the Pltf Obj 602; 611 SUSTAINED

441:04 Army's study that the Army had made almost a decade

441:05 earlier, right?

441:06 MR. BUCHANAN: Objection to form and

441:07 foundation.

441:08 THE WITNESS: Yes.

443:03 - 444:10 Merkley, LTC John A. (2020-02-26) 1:04

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443:03 Q. Mr. Berger testified that Doug Ohlin Re: [443:03 to 444:10] Re: [443:03 to 444:10]

443:04 requested from him a dual-ended product that Pltf Obj 602; 611 SUSTAINED

443:05 included the Ultra Fit tips of a single size and

443:06 the ISL filter. You don't have any reason to

443:07 disagree with that testimony, do you?

443:08 MR. BUCHANAN: Objection to form.

443:09 THE WITNESS: No.

443:10 BY MR. WASDIN:

443:11 Q. Now, you and I looked at some documents

443:12 that included emails from Doug Ohlin in the April

443:13 1999 time period, do you remember those?

443:14 A. Yes.

443:15 Q. And in those emails, Mr. Ohlin had found

443:16 that the original production samples of that plug

443:17 that were sent by Aearo were about a quarter of an

443:18 inch too long and didn't fit into the military

443:19 carrying case, do you remember those emails?

443:20 A. Yes.

443:21 Q. Subsequent to those emails, Aearo reduced

444:01 the size, reduced the length of the Combat Arms

444:02 Version 2 by a quarter of an inch.

444:03 During your investigation of the

444:04 materials in this case, did you find anything that

444:05 contradicts that Aearo shortened the length of the

444:06 Combat Arms Version 2 in response to Doug Ohlin's

444:07 request?

444:08 MR. BUCHANAN: Objection to form.

444:09 Ambiguous.

444:10 THE WITNESS: No.

444:12 - 444:15 Merkley, LTC John A. (2020-02-26) 0:03

444:12 Q. You don't have any reason to disagree

444:13 with that, do you?

444:14 MR. BUCHANAN: Leading.

444:15 THE WITNESS: No.

445:11 - 445:16 Merkley, LTC John A. (2020-02-26) 0:13

445:11 Q. But you don't have any reason to disagree Re: [445:11 to 445:16] Re: [445:11 to 445:16]

445:12 with Mr. Berger's testimony that he told Doug Ohlin Pltf Obj 602; 611 SUSTAINED

445:13 about the company's internal testing while it was

445:14 happening, do you?

445:15 MR. BUCHANAN: Objection to form.

445:16 THE WITNESS: No.

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449:01 - 449:06 Merkley, LTC John A. (2020-02-26) 1:50

449:01 Q. And that's interesting, because if you go

449:02 to the Hobbs testing, which is the Air Force

449:03 testing we've been talking about all day, he

449:04 actually does -- are you with me on the Air Force

449:05 document?

449:06 A. I am.

449:12 - 450:14 Merkley, LTC John A. (2020-02-26) 1:52

449:12 Q. He actually does real ear attenuation Re: [449:12 to 450:14] Re: [449:12 to 450:14]

449:13 testing as part of that testing, right? Pltf Obj 403; 702; MIL G7 OVERRULED

449:14 MR. BUCHANAN: Objection to form.

449:15 THE WITNESS: Yes.

449:16 BY MR. WASDIN:

449:17 Q. And real ear there means the earplugs

449:18 were inserted into a human ear and tested for

449:19 attenuation, right?

449:20 A. Correct.

449:21 Q. And if you go to page 19, at the top,

450:01 there's a paragraph called, Discussion. He

450:02 determines that the continuous noise protection of

450:03 all devices tested was reasonable and should

450:04 provide for a safe exposure level for the average

450:05 users in many noise environments up to 105 dB,

450:06 right?

450:07 MR. BUCHANAN: Objection to the form.

450:08 THE WITNESS: Yes.

450:09 BY MR. WASDIN:

450:10 Q. So, Mr. Hobbs is testing the earplug in

450:11 human ears without rolling the flanges back, and

450:12 they are working?

450:13 MR. BUCHANAN: Objection to form.

450:14 THE WITNESS: Yes, it appears so.

452:12 - 453:14 Merkley, LTC John A. (2020-02-26) 1:53

452:12 Q. First, we have test data from a variety Re: [452:12 to 453:14] Re: [452:12 to 453:14]

452:13 of branches of the military that show that the plug Pltf Obj vague; 602; 702; 

402; SUSTAINED

452:14 provides reasonable attenuation or good attenuation 802

452:15 under a variety of different circumstances, right?

452:16 MR. BUCHANAN: Objection to form and

452:17 foundation. Vague.

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452:18 THE WITNESS: Yes.

452:19 BY MR. WASDIN:

452:20 Q. Second, you have personal experience with

452:21 the plug, and for you, it worked well?

453:01 A. Yes.

453:02 MR. BUCHANAN: Objection to form.

453:03 BY MR. WASDIN:

453:04 Q. Third, we reviewed a number of success

453:05 stories from other members of the military who

453:06 served in Iraq who said that the plug worked for

453:07 them, too, right?

453:08 A. Yes.

453:09 Q. Third, you treated patients in Iraq, and

453:10 your experience was those that didn't use a plug

453:11 had hearing loss, and those that did use a hearing

453:12 protector, like the CAEv2, did not, right?

453:13 MR. BUCHANAN: Objection. Form.

453:14 THE WITNESS: Correct.

455:01 - 455:08 Merkley, LTC John A. (2020-02-26) 0:18

455:01 Q. But your experience was, regardless of Re: [455:01 to 455:08] Re: [455:01 to 455:08]

455:02 what a particular document did or did not say, that Pltf Obj 611 SUSTAINED

455:03 in the 2001 to 2005 time period, Doug Ohlin

455:04 instructed you and other Army audiologists to fold

455:05 back the flanges as needed to get a good fit,

455:06 right?

455:07 MR. BUCHANAN: Objection to form.

455:08 THE WITNESS: Yes.

456:02 - 457:11 Merkley, LTC John A. (2020-02-26) 1:45

456:02 Q. Now, you told me earlier that all Re: [456:02 to 457:11] Re: [456:02 to 457:11]

456:03 preformed earplugs are susceptible to loosening, Pltf Obj foundation; 602; 

611; SUSTAINED

456:04 right? 702

456:05 A. Yes.

456:06 Q. That's a well-known phenomenon, right?

456:07 A. Yes.

456:08 MR. BUCHANAN: Objection to form.

456:09 BY MR. WASDIN:

456:10 Q. So, users of the Combat Arms Version 2,

456:11 at least the audiology community, would know, like

456:12 other preformed earplugs, it could be susceptible

456:13 to loosening, right?

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456:14 MR. BUCHANAN: Objection. Form.

456:15 Foundation. Well beyond the witness.

456:16 THE WITNESS: Yes.

456:17 BY MR. WASDIN:

456:18 Q. Yourself included, right?

456:19 MR. BUCHANAN: Objection to form.

456:20 THE WITNESS: Yes.

456:21 BY MR. WASDIN:

457:01 Q. Now, your experience was with any

457:02 preformed earplug that did loosen, including if it

457:03 happened to you with the Combat Arms Version 2, it

457:04 was perceptible to you, right?

457:05 A. Yes.

457:06 MR. BUCHANAN: Objection.

457:07 BY MR. WASDIN:

457:08 Q. That in the real world, you had an

457:09 auditory clue that you had lost the seal of your

457:10 hearing protector, right?

457:11 A. Yes.

458:02 - 459:01 Merkley, LTC John A. (2020-02-26) 1:44

458:02 Q. I'll represent to you some testimony Re: [458:02 to 459:01] Re: [458:02 to 459:01]

458:03 given in this case. Mr. Berger said that the Pltf Obj foundation; 602; 

611; SUSTAINED

458:04 concept of imperceptible loosening is a phenomenon 702

458:05 that's limited to the REAT chamber because there

458:06 are no auditory clues in a silent room. Do you

458:07 follow that logic?

458:08 MR. BUCHANAN: Objection to form.

458:09 THE WITNESS: Yes.

458:10 BY MR. WASDIN:

458:11 Q. And in a silent room that had no auditory

458:12 external clues, if you lost your seal on a plug,

458:13 you might not notice it, right?

458:14 MR. BUCHANAN: Objection to form and

458:15 foundation.

458:16 THE WITNESS: Correct.

458:17 BY MR. WASDIN:

458:18 Q. But in the real world, particularly in a

458:19 combat setting or in military training, if you lose

458:20 your seal on a plug, you will notice it?

458:21 MR. BUCHANAN: Objection. Foundation.

459:01 THE WITNESS: Generally, yes.

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460:07 - 460:12 Merkley, LTC John A. (2020-02-26) 0:16

460:07 Q. Okay. But as of 2001, information that

460:08 for some people they could benefit by folding back

460:09 the flanges on the opposite side of the plug, you

460:10 had that information as of 2001?

460:11 MR. BUCHANAN: Objection to form.

460:12 THE WITNESS: Yes.

488:21 - 489:07 Merkley, LTC John A. (2020-02-26) 0:18

488:21 Q. Okay. And fair to say, sir, that the

489:01 design of the yellow end was to allow sound to go

489:02 through, right?

489:03 A. Yes.

489:04 Q. That was the goal, to allow as much sound

489:05 to go through unless it was an impulse noise,

489:06 right?

489:07 A. Correct.

489:18 - 490:08 Merkley, LTC John A. (2020-02-26) 1:41

489:18 THE WITNESS: Can I just add? You know, Re: [489:18 to 490:08] Re: [489:18 to 490:08]

489:19 because the questioning was related to, you know, Pltf Obj nonresponsive SUSTAINED

489:20 would you perceive a -- a break in the seal? And

489:21 when you fit the yellow end of that earplug in, you

490:01 still get an occlusion effect, and when the seal is

490:02 broken, that occlusion effect is what tends to go

490:03 away.

490:04 So, the -- the sound still is different.

490:05 It's different with the earplug seated and when

490:06 it's -- when the seal is broken. They're -- you

490:07 can generally tell when that seal is broken. I

490:08 won't say all the time, but --

Page 81 of 81

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Preserved Objections Previous Rulings New Objections Rulings

7:18 - 9:23 Murphy, William (2021-01-15) 3:50

7:18 Q. Good afternoon, Dr. Murphy. My

7:19 name is Nick Wasdin, and I represent 3M in this

7:20 litigation. Can you start by introducing

7:21 yourself, tell us who you are and where you

7:22 work?

7:23 A. My name is William Murphy, and I

8:01 work for the National Institute for

8:02 Occupational Safety and Health. I'm in the

8:03 division of field studies and engineering. And

8:04 I'm in the engineering physical hazards branch

8:05 and in the noise and bioacoustics team. I've

8:06 been working at NIOSH since December of 1992.

8:07 And my current position is as the coordinator

8:08 for the hearing loss prevention research

8:09 program within the National Institute for

8:10 Occupational Safety and Health. And I've been

8:11 doing that job for the last five years.

8:12 Q. Can you give us an overview of

8:13 your education prior to joining NIOSH?

8:14 A. Sure. I completed a bachelor's

8:15 degree in 1982 in physics at Iowa State

8:16 University. I continued at Iowa State and

8:17 completed a master's degree in physics -- in

8:18 solid state physics at Iowa State University in

8:19 1984. I then applied for and went to

8:20 Purdue University to study for my doctorate in

8:21 physics. That was completed in 1992.

8:22 The emphasis area in my research was --

8:23 well, specialized in hearing science, cochlear

9:01 modeling, and measurement of otoacoustic

9:02 emissions, which are sounds produced by the

9:03 inner ear and measured in the ear canal. And

9:04 then I was hired by National Institute for

9:05 Occupational Safety and Health in -- June 26 of

9:06 1992 is when I was offered my job. And then I

9:07 was told I needed to show up there by

9:08 December 14 of 1992. So December 14 is when I

9:09 started with NIOSH after I had finished and

9:10 defended my dissertation work at Purdue. And I

9:11 have been with NIOSH ever since.

9:12 Q. Okay.

9:13 A. I've -- in 2012 -- well, starting

9:14 in 2000 and finishing in 2012, I completed a

9:15 master's degree -- master's of engineering

9:16 degree in acoustics at Penn State University in

9:17 the graduate program for acoustics.

9:18 Q. Has your work as NIOSH included

9:19 researching and testing hearing protection

Designations

Page 1 of 21

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9:20 devices?

9:21 A. Yes.

9:22 Q. What type of testing have you done

9:23 on hearing protection devices?

10:08 - 11:10 Murphy, William (2021-01-15) 2:53

10:08 A. The work that we've done has been

10:09 both physical acoustics measurements and with

10:10 human subject measurements. And -- I'm sorry.

10:11 I'm trying to finish one thing that somebody is

10:12 asking me about and I need to get back to her.

10:13 It should be -- all right. So there is -- at

10:14 NIOSH we have a testing laboratory for human

10:15 subjects to conduct what's called real ear

10:16 attenuation and threshold measurements, which

10:17 are the standard type measurements that are --

10:18 that are done for determining the noise

10:19 reduction rating for hearing protection

10:20 devices.

10:21 We also have the facilities to do physical

10:22 acoustic measurements of attenuation of hearing

10:23 protection devices, both with continuous noise

11:01 sounds and with impulsive noise sounds. And

11:02 that -- I think that answers your question.

11:03 Q. When did you first become aware of

11:04 the Combat Arms Earplug?

11:05 A. Let me think. I -- I think when I

11:06 first became aware of it was around 2001. We

11:07 purchased an acoustic test fixture in 2000, I

11:08 think. And it was delivered in September of

11:09 2001. And we did our first tests with that

11:10 fixture with earplugs in 2001.

12:15 - 13:09 Murphy, William (2021-01-15) 1:57

12:15 Q. (Mr. Wasdin) Dr. Murphy, I heard

12:16 your last answer cut out on me. But I asked

12:17 when you first became aware of the Combat Arms,

12:18 and I think you were describing your purchase

12:19 of an acoustical test fixture.

12:20 A. Yes. The reason I -- I can't peg

12:21 or pin down exactly when I became aware of the

12:22 Combat Arms Earplug was that the company or the

12:23 organization that we purchased the acoustical

13:01 test fixture from was the French German

13:02 Research Institute of Saint Louis. And they

13:03 are also the ones who invented the filter that

13:04 is used in the Combat Arms Earplug. So we

13:05 became aware of that. The first time that I

13:06 ever did any measurements with the Combat Arms

13:07 Earplug with that filter was in 2001.

Page 2 of 21

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13:08 Q. Okay. And what type of acoustical

13:09 test fixture did NIOSH have at that time?

13:11 - 13:15 Murphy, William (2021-01-15) 0:12

13:11 A. It's the one that we purchased --

13:12 we purchased it from the French German Research

13:13 Institute of Saint Louis.

13:14 Q. Is it a mannequin of some sort?

13:15 A. Yes.

14:08 - 14:16 Murphy, William (2021-01-15) 0:22

14:08 Q. All right. Dr. Murphy, this, I

14:09 believe, will take the number Exhibit 1 to your

14:10 deposition. And it is an e-mail from you to

14:11 some other folks dated 10/23/2001 with the

14:12 subject line of impulse peak levels. Do you

14:13 see that?

14:14 (Defendant's Exhibit Number 1

14:15 is marked for identification.)

14:16 A. Yes.

14:17 - 15:22 Murphy, William (2021-01-15) 2:39

14:17 Q. What is the -- what does this

14:18 e-mail contain within itself?

14:19 A. It contains -- well, the data

14:20 columns that are there are describing the

14:21 firearm that was used, whether it was a nine

14:22 millimeter pistol. I'd have to go back and

14:23 look to see exactly what pistol it was. But I

15:01 want to say it was a Sig Sauer pistol and a

15:02 Colt AR-15 which is a surrogate for the M-16

15:03 rifle.

15:04 And it describes in the second column of the

15:05 dataset there the different types of hearing

15:06 protection devices that were tested. There are

15:07 a variety of earplugs. There are a variety of

15:08 electronic hearing protectors. It describes

15:09 whether the hearing protector was electronic or

15:10 whether it was just turned off. It describes

15:11 whether the protector was nonlinear. And then

15:12 it tells us the peak level, the sound pressure

15:13 level of the impulse that was measured close to

15:14 the mannequin, about four inches from the right

15:15 ear of the mannequin, which was about six feet

15:16 of the left of the person who was doing the

15:17 shooting. It describes the peak level inside

15:18 of the mannequin's ear canal, so measured

15:19 approximately at the location of the tympanic

15:20 membrane. And it describes the difference, the

15:21 attenuation, between the outside and inside

Page 3 of 21

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15:22 measurement.

16:13 - 17:20 Murphy, William (2021-01-15) 2:55

16:13 Q. One of the earplugs or hearing

16:14 protection devices that was tested included the

16:15 Combat Arms Version II. Is that right?

16:16 A. Yes. Yes. There are eight lines

16:17 in this that have CAELin, CAELin2, CAENLin and

16:18 CAENLin2. There are four lines for the nine

16:19 millimeter, and there are four lines for the

16:20 M-16.

16:21 Q. What was the purpose of this

16:22 testing? Why was it done?

16:23 A. Well, the question that was of

17:01 interest to me as a researcher in hearing, in

17:02 hearing science, is whether or not the impulse

17:03 would be attenuated sufficiently fast to, you

17:04 know, not prevent or not present a damage risk

17:05 to the persons who were wearing these hearing

17:06 protection devices.

17:07 In particular I was concerned about the

17:08 electronic devices, whether or not they would

17:09 be cutting out sound quickly enough and -- and

17:10 just trying to understand what it is that we

17:11 can know about the hearing protection devices.

17:12 The Combat Arms Earplugs -- and then there's

17:13 another one that's listed in there called

17:14 ISLNLin and ISLNLin2. Those are using the same

17:15 filter that's in the Combat Arms Earplug. And

17:16 the way that those filters operate is based on

17:17 physical acoustic principles where the acoustic

17:18 resistance of -- the pressure -- the resistance

17:19 to sound going through that small orifice acts

17:20 almost immediately.

18:03 - 19:04 Murphy, William (2021-01-15) 1:27

18:03 Q. Okay. Was this testing performed

18:04 on the ISL mannequin that you described

18:05 earlier?

18:06 A. It was performed on an ISL

18:07 mannequin that was built in the year 2000.

18:08 Q. Can you describe for us what the

18:09 ear and ear canal anatomy is on that mannequin?

18:10 A. The ear canal on this particular

18:11 mannequin, I want to say it was about eight

18:12 millimeters or -- I'd have to go back and look

18:13 at my records. But I think it was around eight

18:14 to nine millimeters in length. It was a rubber

18:15 ear canal insert that attaches to the lateral

18:16 end of the middle ear simulator. In this case

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18:17 it was one that was built by Bruel and Kjaer

18:18 Corporation.

18:19 And that ear canal simulator is mounted

18:20 inside of a solid acrylic head. And it is

18:21 isolated in two different ways. There's a

18:22 casing inside of this acrylic head in which the

18:23 preamplifier and the ear simulator are mounted.

19:01 And those provide shock isolation for the

19:02 purpose of being able to use these with very

19:03 high level impulses such as blast noise from

19:04 explosions and the like.

19:05 - 24:17 Murphy, William (2021-01-15) 7:59

19:05 Q. How was the Combat Arms Version II

19:06 plug that you tested inserted into the ear

19:07 canal on the mannequin?

19:08 A. Well, the ear canal is a straight

19:09 cylinder. So as you insert the earplug,

19:10 because this ear canal had only about eight or

19:11 nine millimeters, if I recall correctly, of

19:12 length, you could only be assured that you were

19:13 getting full contact of the first flange and

19:14 the second flange of the Combat Arms Earplug

19:15 with the walls of the ear canal. The third

19:16 flange of the earplug makes contact with the

19:17 lateralmost edge of the ear canal. But it

19:18 isn't inserted fully like you would have on

19:19 a -- if you were to insert it in a -- in a real

19:20 human ear or in -- there's another ear canal

19:21 that we -- or another acoustic test fixture

19:22 that we did.

19:23 And I guess we'll get to it in the other --

20:01 other documents that were submitted. But it's

20:02 a longer ear canal. And it's more conformal to

20:03 the shape of a -- a regular human ear canal.

20:04 Q. What steps were you able to take

20:05 on this first mannequin in 2001 to ensure that

20:06 you were getting a good fit or seal with the

20:07 earplug?

20:08 A. In the case of the Combat Arms

20:09 Earplug as well as in the other earplug that

20:10 is -- well, the other earplugs that are in

20:11 these measurements, we inserted them to the

20:12 full depth of the mannequin's ear canal. The

20:13 ear simulator -- the middle ear simulator has a

20:14 grid that is about four millimeters in front of

20:15 the diaphragm of the microphone that's doing

20:16 the sensing of the sound. And so you can push

20:17 the ear canal -- you can push the earplug all

20:18 the way into the ear canal and not worry about

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20:19 contacting the diaphragm of the microphone and

20:20 destroying the microphone.

20:21 Q. Did you need to fold back the

20:22 flanges --

20:23 A. No.

21:01 Q. -- on the opposite end of the plug

21:02 to get a good fit?

21:03 A. No.

21:04 Q. So all of this testing, at least

21:05 in 2001, was done without folding the flanges

21:06 back?

21:07 A. Correct.

21:08 Q. Can you tell looking at Exhibit 1

21:09 here what type of attenuation -- let's start

21:10 with the green end of the Combat Arms, was

21:11 providing?

21:12 A. Sure. The green end of the Combat

21:13 Arms is the CAELin and the CAELin2. And as we

21:14 look at this, it is lines three and four of the

21:15 data. And the last number in those lines is

21:16 28.78 and 28.83. And if you go down a little

21:17 further to where the M16 has the same CAELin

21:18 and CAELin2, we find that the values there are

21:19 28.28 and 28.86.

21:20 So it's -- it's providing -- and there needs

21:21 to be perhaps a distinction between what I'm

21:22 calling attenuation, at least in this e-mail at

21:23 that time, and making a comparison to something

22:01 like noise reduction rating. Noise reduction

22:02 rating is measured with the subject's ear.

22:03 You're making a measurement of -- of detecting

22:04 sound with the ear open and then with the ear

22:05 occluded with an earplug. And in this case

22:06 we're making a measurement between the

22:07 microphone that is outside of the ear and the

22:08 microphone that is at the location of the --

22:09 the tympanic membrane or nominally surrogate

22:10 for the tympanic membrane. And the difference

22:11 between the outside microphone and the inside

22:12 microphone is going to be slightly different

22:13 and slightly affected due to resonance effects

22:14 of the outer and middle ear that a human would

22:15 experience.

22:16 Q. So I think to sort of try to

22:17 summarize this as best I understand it, for

22:18 both the nine millimeter handgun that was fired

22:19 as well as the M16 surrogate rifle, the green

22:20 end of the Combat Arms was providing

22:21 approximately 28 dB of attenuation from the --

22:22 A. Correct.

Page 6 of 21

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22:23 Q. -- outside inside of the earplug?

23:01 A. Correct.

23:02 Q. Okay. And then what about the

23:03 yellow end, how did that side perform?

23:04 A. The yellow end are the next two

23:05 lines, so lines 5 and 6. And we see there

23:06 28.18 and 26.68 for the nine millimeter rounds.

23:07 And for the M16 we're seeing 25.07 and 25.73

23:08 for the -- I'm going to call this the impulse

23:09 noise reduction or the peak noise reduction

23:10 that we're seeing. In the e-mail I called it

23:11 attenuation. But I think the correct term to

23:12 use is noise reduction.

23:13 Q. Okay. You mentioned earlier that

23:14 one of these other hearing protection devices

23:15 that are listed in this -- these rows of data

23:16 also used the same ISL nonlinear filter. Is

23:17 that right?

23:18 A. Yes.

23:19 Q. Which -- sorry, sir.

23:20 A. There's -- well, there's the

23:21 ISLNLin and the ISLNLin2.

23:22 Q. What plug was that?

23:23 A. It is -- so when -- I'm trying to

24:01 remember who it is. I think it was Aearo at

24:02 the time, that they made a -- they licensed the

24:03 product, this filter from the French German

24:04 Research Institute de Saint Louis. But the

24:05 French Army was using -- and you'll see it up

24:06 here in the -- in the body of the e-mail. It

24:07 describes here ISLNLin and NLin2 are the Bilsom

24:08 656/ISL nonlinear plug. And the French Army

24:09 had access to this filter. And they use it in

24:10 the French Army. I don't know if Bilsom still

24:11 makes this product. I don't think that they

24:12 do. Well, Bilsom is no longer -- they're now a

24:13 part of Honeywell.

24:14 Q. Is Bilsom, or at least were they

24:15 at the time, a different manufacturer of

24:16 hearing protection?

24:17 A. Yes.

29:14 - 29:20 Murphy, William (2021-01-15) 0:24

29:14 Q. Okay. Going back to Exhibit 1,

29:15 the October 2001 testing that we were just

29:16 talking about, I was asking you how did the

29:17 results that you achieved with the Combat Arms

29:18 Version II Earplug compare to the results that

29:19 you achieved with the Bilsom earplug that had

29:20 the ISL filter in it?

Page 7 of 21

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30:05 - 30:18 Murphy, William (2021-01-15) 1:53

30:05 A. I'm hearing nothing from the

30:06 attorney. As you look at this measurement of

30:07 attenuation, what you'll note is for the

30:08 ISLNLin and NLin2, the attenuation was

30:09 approximately 16.41 and 17.34. And for the M16

30:10 rifle, it was 15.9 and 17.81. So approximately

30:11 ten decibels less.

30:12 Now, the reason, I think, is that the flange

30:13 structure of the ISL or what is the Bilsom 656

30:14 earplug, the third flange does not make contact

30:15 at all with the ear canal. So when you insert

30:16 it, you only have contact with the first two

30:17 flanges of that earplug and not the third

30:18 flange.

31:01 - 33:09 Murphy, William (2021-01-15) 3:48

31:01 Q. Dr. Murphy, turning your attention

31:02 from the results of your testing to the

31:03 distribution on the e-mail, can you tell me who

31:04 it was by looking at the to and CC lines that

31:05 you were sharing this data with?

31:06 A. What do you mean who? Do you want

31:07 me to tell you who all the persons are?

31:08 Q. Yes, sir.

31:09 A. Okay. Elliott Berger at that time

31:10 was worker for Aearo EAR. Vern Larson was an

31:11 employee of Bacou-Dalloz. At that particular

31:12 time, Bacou-Dalloz had purchased Bilsom

31:13 Corporation. They were still selling product

31:14 as Bilsom. Per -- Vern Larson worked in

31:15 San Diego at what is now the Honeywell

31:16 headquarters -- well, their hearing protection

31:17 labs in the U.S. Per Hiselius was working in

31:18 Billesholm, Sweden, and he was an employee of

31:19 Dalloz Safety.

31:20 Armand Dancer is a research physiologist and

31:21 medical physician with the French German

31:22 Research Institute de Saint Louis. Dr. Douglas

31:23 Ohlin was at that time part of the Centers for

32:01 Health Promotion and Preventive Medicine at

32:02 Aberdeen Proving Grounds Edgewood Campus. And

32:03 Dr. John Franks is -- at that time he was my

32:04 supervisor. And Mark Little -- Major Mark

32:05 Little was a -- what would you call it? I

32:06 guess it was an intern or he was assigned to

32:07 work at NIOSH for a year. And he was, I think,

32:08 towards the beginning of his tenure with us at

32:09 NIOSH.

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32:10 Q. Do you recall why you were sending

32:11 this test data to that particular group of

32:12 people?

32:13 A. Because all of the products that

32:14 are listed there are manufactured by persons

32:15 from those companies with the exception of one

32:16 of the products that's there.

32:17 Q. And what about Mr. Doug Ohlin?

32:18 A. Doug Ohlin was in the Army's role

32:19 at the Center for -- CHPPM, Center for Health

32:20 Promotion and Preventive Medicine. And Mark

32:21 Little had been working with Dr. Ohlin. And

32:22 that's as much as I know. So I figured that

32:23 Doug would be interested. Armand Dancer is a

33:01 researcher at ISL. And since they invented the

33:02 earplug filter, I thought it was interesting to

33:03 share these data with him.

33:04 Q. Okay. After the 2001 testing

33:05 that's described in this e-mail, do you recall

33:06 when the next time was that you had an occasion

33:07 to test the Combat Arms Version II?

33:08 MS. SASLAW: And I'm --

33:09 A. May of 2002.

33:11 - 33:12 Murphy, William (2021-01-15) 0:04

33:11 A. It's part of a health hazard

33:12 evaluation that NIOSH did.

33:20 - 35:14 Murphy, William (2021-01-15) 2:11

33:20 Q. Okay. Dr. Murphy, can you tell us

33:21 if you recognize Exhibit 2, and if so, what it

33:22 is?

33:23 A. Let's see here. Yes. I recognize

34:01 it. It is a presentation that I wrote in

34:02 collaboration with my colleague, Chucri Kardous

34:03 at NIOSH. And it -- as the title says, it

34:04 describes measurements of attenuation of

34:05 nonlinear and linear hearing protection devices

34:06 and impulse noise.

34:07 Q. Is this the testing that you just

34:08 described would have been done in 2002?

34:09 A. Yes.

34:10 Q. Okay. If we turn to the -- well,

34:11 let me ask you before I turn into it, what was

34:12 the occasion for this testing? Why did you do

34:13 it?

34:14 A. The Fort Collins Police Services

34:15 Department contacted NIOSH to request their

34:16 assistance with the evaluation of impulse noise

34:17 and hearing sensitivity, hearing loss --

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34:18 actually hyperacusis is the term that -- that

34:19 should be used, for their special weapons and

34:20 assault team, I guess is the proper expanded

34:21 abbreviation for SWAT. They had issued an

34:22 electronic earplug to their officers on the

34:23 SWAT team. And they were concerned that

35:01 several of their officers had developed

35:02 sensitivity to impulse noise and to using that

35:03 particular product. And they asked NIOSH to

35:04 come out and do an evaluation of the noise

35:05 levels and to evaluate that particular earplug

35:06 that they were using. And at the time that we

35:07 did this, I wanted to take and get as many of

35:08 our products that -- many of which you saw in

35:09 the -- in the previous Exhibit 1 or tab one, I

35:10 guess you called it. We wanted to evaluate as

35:11 many of those products as we could in

35:12 collaboration with going out and doing these

35:13 measurements at an indoor as well as an outdoor

35:14 firing range.

35:17 - 39:03 Murphy, William (2021-01-15) 4:07

35:17 Q. And Dr. Murphy, I would ask you

35:18 whether you can tell us what products were

35:19 tested during this 2002 NIOSH testing?

35:20 A. Okay. So there are -- in this

35:21 case the -- there are linear products that are

35:22 described here. And there are nonlinear

35:23 products that are described here. The

36:01 Bilsom 555 is a solid core linear earplug. The

36:02 Bilsom 655 NST -- stands for natural sound

36:03 technology -- is akin to a flat attenuation

36:04 earplug designed for musicians of sorts. The

36:05 EAR Combat Arms Earplug is the CAE Version II.

36:06 The linear side of that is the green side.

36:07 The next two EAR products are the same

36:08 product. One of them is called HiFi. The

36:09 other is called Ultratech. And they are built

36:10 with a Knowles -- I believe it's a Knowles

36:11 acoustic filter. And they're meant to provide

36:12 a flat attenuation, a uniform attenuation

36:13 across the frequency spectra. The EAR classic

36:14 earplug is a polyvinyl foam earplug, and it is

36:15 formable. You can roll it down and make it

36:16 insert into a fixture and whatnot.

36:17 The nonlinear earplugs that were looked at

36:18 were the Bilsom 655 using the ISL cartridge.

36:19 So it's essentially the -- it's the same

36:20 flanges as the 655 NST earplug. But instead of

36:21 having the NST filter, it uses the ISL

Page 10 of 21

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36:22 cartridge. The EAR Combat Arms Version II with

36:23 the ISL cartridge, we all know what that is.

37:01 And then there's another product here, the

37:02 North Sonic ear valve, which is -- essentially

37:03 it's a flap inside of a metal cylinder with

37:04 openings on either end. And the assumption is

37:05 that the sound pressure level will cause that

37:06 flap to close and increase the attenuation.

37:07 And then the last product that's on that is an

37:08 earmuff called the EAR Ultra 9000. I don't

37:09 know if that's sold anymore. I don't believe

37:10 that it is. And it is also based on a

37:11 nonlinear acoustic process like the ISL

37:12 cartridge except instead of a cylinder with two

37:13 holes on either end, you know, inserted into an

37:14 ear canal cartridge, it's a larger slit orifice

37:15 that relies on the same principles that as the

37:16 sound pressure differential across the orifice

37:17 is increasing, the acoustic resistance

37:18 increases and provides more attenuation as the

37:19 sound pressure level outside goes up.

37:20 Q. Okay. Was this testing also done

37:21 on a mannequin?

37:22 A. Yes. It was done on the ISL

37:23 mannequin that was done on the previous

38:01 discussion --

38:02 Q. And --

38:03 A. -- so circa 2000.

38:04 Q. -- would the Combat Arms

38:05 Version II have been fitted into that mannequin

38:06 in the manner that you described earlier?

38:07 A. Yes.

38:08 Q. Did you need to fold back the

38:09 flanges on the --

38:10 A. No.

38:11 Q. -- opposite on this test?

38:12 A. No.

38:13 Q. You were able to get a good fit

38:14 with the Combat Arms Version II without folding

38:15 the flanges back?

38:16 A. Correct.

38:17 Q. Did you have any problems during

38:18 this testing achieving or maintaining a good

38:19 fit with the Combat Arms Version II?

38:20 A. No. You know, it's -- it's the

38:21 same earplug. It's the same ear canal. And

38:22 it's the same issues that I mentioned earlier,

38:23 which is the first two flanges would have solid

39:01 contact with the ear canal wall. And the third

39:02 flange was in contact with the outer edge of

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39:03 the ear canal wall.

39:06 - 41:01 Murphy, William (2021-01-15) 3:31

39:06 Q. And Dr. Murphy, could you tell us

39:07 what you did during this 2002 testing?

39:08 A. So this is describing the

39:09 measurements at the indoor firing range. There

39:10 are ten weapons that are indicated here, five

39:11 different calibers, and the weapons had

39:12 different length barrels. So there are four

39:13 pistols. The 357 Smith and Wesson 586 and 686.

39:14 I don't remember which one is the longer one.

39:15 Same thing for the Para-Ordnance and the

39:16 Colt 991, 45 caliber, the Glock 22 and 27, and

39:17 the pocket nine and Sig Sauer nine millimeter

39:18 pistols.

39:19 The Remington 870 and 1187 also had slightly

39:20 different lengths in the shotgun barrel. We

39:21 set the mannequin up so that it was six feet to

39:22 the left of the shooter. The shooter had a

39:23 tripod in which they were to rest their hand

40:01 and basically provide a gun rest so that we

40:02 maintained a consistent positioning of the

40:03 weapon and not having issues of the weapon

40:04 barrel being, you know -- moving around

40:05 significantly.

40:06 For each hearing protector condition,

40:07 whether that was the device with the nonlinear

40:08 insertion or the linear insertion, every one of

40:09 them we -- we measured five shots for each of

40:10 these ten weapons at the indoor range. And if

40:11 I remember the -- the study was something like

40:12 there were 33 different conditions. And we had

40:13 ten weapons. And so that resulted in a couple

40:14 thousand shots that we had in this study.

40:15 At the outdoor range -- which is not

40:16 described here. At the outdoor range we

40:17 selected five of these weapons and two other

40:18 weapons that we couldn't use at the indoor

40:19 range, the Colt AR-15 and a Heckler and Koch.

40:20 I want to say it was a 36 rifle. And those

40:21 fire a .223 ammunition round or a .556

40:22 ammunition round. And they don't fire those at

40:23 the indoor range because their bullet traps are

41:01 not designed to accept that much energy.

41:05 - 44:01 Murphy, William (2021-01-15) 4:32

41:05 Q. Dr. Murphy, take a look at this.

41:06 And can you tell us at least at a high level

41:07 what the results were for the green end, the

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41:08 linear end of the Combat Arms Version II?

41:09 A. Yeah. As you look at that, it's

41:10 the greenish squares that are indicated in

41:11 this. And you can see that the -- these are

41:12 third octave band estimates of the noise

41:13 reduction. So this is the measurement between

41:14 the external microphone. So if we're putting a

41:15 microphone about four inches or so from the

41:16 right ear of the mannequin, then the mannequin

41:17 is -- has either a hearing protector or no

41:18 hearing -- actually it always had a hearing

41:19 protector on. And the reason it had a hearing

41:20 protector on is that initial purchase of the

41:21 mannequin had a half-inch microphone. So we

41:22 couldn't do an unoccluded measurement, a

41:23 measurement without a hearing protector on it,

42:01 without fear of overloading the microphone. So

42:02 that's why all of our measurements were done

42:03 with the earplugs in place.

42:04 So we're taking a measurement between the

42:05 external microphone and the internal microphone

42:06 and calculating the third octave band noise

42:07 reduction values.

42:08 Q. I know this is in graphical form,

42:09 so it may be a little bit difficult to do just

42:10 visually. But can you tell us sort of the

42:11 range or typical attenuation provided by the

42:12 CAEv2 green end during the testing?

42:13 A. Yeah. As we look at this, it --

42:14 it changes from starting at the left of the

42:15 graph at 25 hertz. Although knowing what I

42:16 know now in the publications that we did on

42:17 these kinds of products or these kinds of

42:18 measurements from this study, I would start at

42:19 around 100 hertz because we don't have a long

42:20 enough time sample to really get a good solid

42:21 measurement for the very low frequency that is

42:22 between 25 and 100 hertz.

42:23 But starting at a hundred hertz, we're

43:01 around 32 decibels. And as you go up around it

43:02 looks like about 400 hertz, it's decreased a

43:03 little bit to 28 or 23 -- 26 decibels. And

43:04 then it increases up to around 30-something

43:05 decibels, almost 40 decibels at 8,000 -- or 800

43:06 hertz.

43:07 And it reduces a little bit again. And by

43:08 the time we get out to 5,000 hertz and above,

43:09 it is more than 50 decibels. And there's a

43:10 dark -- well, not dark. A teal colored line in

43:11 this bold line. And that indicates the bone

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43:12 conduction limit for the attenuation

43:13 measurement.

43:14 In other words, at some point the amount of

43:15 energy that would potentially be transmitted to

43:16 a person wearing the earplug to their --

43:17 through their skull -- not through the ear, but

43:18 through their skull, through the brain tissue

43:19 and potentially to the cochlea, it's what we

43:20 call the bone conduction limit. And so when

43:21 those two green values are below in this graph,

43:22 that line, we would want to limit what we say

43:23 about the amount of attenuation that it might

44:01 provide.

44:23 - 46:07 Murphy, William (2021-01-15) 2:45

44:23 Q. Dr. Murphy, can you tell us how

45:01 the Bilsom product performed that had the ISL

45:02 filter in it?

45:03 A. In this case again, again, we

45:04 started around 100 hertz. The -- these are the

45:05 linear earplug filters. These are not the

45:06 nonlinear earplug filters. So it's not a

45:07 comparison -- well, wait. Wait. Wait. Wait.

45:08 I'm sorry. We are talking about the

45:09 Combat Arms linear earplug.

45:10 Okay. So the one that is to be compared

45:11 with the Combat Arms Version II would be the

45:12 blue symbols that are in this, the blue circles

45:13 and symbols. And we see attenuation ranging

45:14 from about 28 at 100 hertz. It decreases to

45:15 about 15 or so at 400 hertz and then increases

45:16 upwards of almost 40 decibels and such as you

45:17 move out into higher frequencies.

45:18 Q. Okay. So I'm sorry, Dr. Murphy.

45:19 Did I interrupt you?

45:20 A. The one thing I was going to point

45:21 out is that, you know, relative to the noises

45:22 that we're -- we're looking at, these are going

45:23 to be gunshots. And they're going to have peak

46:01 levels or a spectral peak around a thousand

46:02 hertz -- five hundred to a thousand hertz. So

46:03 the portion that matters in terms of the

46:04 attenuation that we're dealing with is going to

46:05 be affected perhaps more strongly by the

46:06 decrease in attenuation you see at 400, 500

46:07 hertz.

46:10 - 47:15 Murphy, William (2021-01-15) 2:45

46:10 Q. Dr. Murphy, I believe this -- this

46:11 slide contains the yellow end.

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46:12 A. Yes.

46:13 Q. The nonlinear end of the

46:14 Combat Arms and the other products. Can you

46:15 tell us what attenuation or noise reduction was

46:16 achieved with the yellow end of the Combat Arms

46:17 Version II on your testing?

46:18 A. Yeah. I'm just trying to think

46:19 about what's here. I'm -- I'm going to confess

46:20 that there may be an error in the legend. I'm

46:21 not positive about that. I'd have to go back

46:22 and check my -- my data. But if I believe the

46:23 legend as it is, the black symbols -- and well,

47:01 let me describe what I think the error is. The

47:02 EAR Combat Arms nonlinear earplug is yellow.

47:03 The EAR Ultra 9000 earmuff is black. And I

47:04 thought that these would be -- the yellow would

47:05 be the Combat Arms and the black would be the

47:06 Ultra 9000. That said, if we look at these, we

47:07 see a change in attenuation from almost no

47:08 attenuation at low levels or low frequencies.

47:09 And it increases as one goes up in frequency to

47:10 about 20 dB. This is -- I'm following the

47:11 black squares that are in this graph, to about

47:12 20 dB. Starting around a hundred hertz there's

47:13 a slight dip. It looks to be about 100 hertz.

47:14 And then it tends to increase from there on

47:15 out.

48:05 - 51:07 Murphy, William (2021-01-15) 4:57

48:05 MR. WASDIN: If we go to slide 20,

48:06 Simon, there is a -- a chart that's called

48:07 summary of attenuation growth.

48:08 Q. Dr. Murphy, do you see that?

48:09 A. Yes, I do.

48:10 Q. What is this depicting?

48:11 A. Well, I think you need to go back

48:12 two -- one side. Let's go back one slide,

48:13 please, and I can describe what -- what we're

48:14 talking about here. Because the different

48:15 weapons that we used, this is data from the

48:16 indoor firing range because there are ten

48:17 symbols in blue, ten symbols in black, and ten

48:18 symbols in yellow. The different weapons have

48:19 different peak levels. And the performance of

48:20 a nonlinear earplug changes as a function of

48:21 the external and internal pressure difference.

48:22 So what I was trying to look at is what is the

48:23 growth or what is the change, what's the

49:01 variability in the nonlinear, you know, peak

49:02 reduction that we're seeing. Not the nonlinear

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49:03 peak reduction. What is the change in the peak

49:04 reduction and what's the uncertainty in the

49:05 peak reduction as a function of the various

49:06 weapons that were used.

49:07 And what we see here are three different

49:08 hearing protection devices, the EAR nonlinear

49:09 earplug. That's in yellow. And the Ultra 9000

49:10 in black and the Bilsom ISL earplug in blue.

49:11 And what I did was take the average of all of

49:12 these quantities, so roughly the averages kind

49:13 of in the middle of each of those lines. Let's

49:14 just say right around 162.

49:15 So if we look at the Bilsom, we're seeing

49:16 around 17. If we look at the Ultra 9000, we're

49:17 seeing about 21 or 22. And if we're looking at

49:18 the EAR Combat Arms Earplug, we're looking at

49:19 about 23 in terms of the average of all of

49:20 those symbols. Then the other quantity that I

49:21 was trying to capture was the slope of those

49:22 lines.

49:23 And when you take a look at the slopes of

50:01 those lines, it's listed there 0.88 -- I'm

50:02 sorry, 0.088 decibels per decibel for the blue

50:03 line. 0.13 decibels per decibel for the yellow

50:04 line. And 0.53 decibels per decibel for the

50:05 black line.

50:06 Now, the earmuff is the Ultra 9000. And

50:07 earmuffs tend to change more. At least in my

50:08 experience with this, they change more as a

50:09 function of the peak level. And it has to do

50:10 just with the fact that you've got this large

50:11 volume that is being affected differently as

50:12 the -- as the impulse levels increase.

50:13 Now if we go to the next slide, what I've

50:14 done is try to summarize all of the products

50:15 that were tested and plotted them by their

50:16 average level and plotting them with the slope,

50:17 the attenuation of those lines. And so if we

50:18 look at the EAR Combat Arms, it's a 23 with a

50:19 slope of about .13 or .15. I forget what the

50:20 number was. Yes, that's the right symbol.

50:21 The Bilsom ISL is the dark blue symbol, and

50:22 it's around 17. And the slope is in the other

50:23 graph. It's at 0.088. And the EAR Ultra 9000

51:01 is up there at the top of the page. And it has

51:02 an attenuation of about 21 or 22 dB and a large

51:03 slope on this.

51:04 Q. So is the way this chart works is

51:05 that the further to the right you are, the

51:06 higher the noise reduction was?

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51:07 A. The higher peak reduction, yes.

51:22 - 54:13 Murphy, William (2021-01-15) 3:56

51:22 Q. And Dr. Murphy, this is the, I

51:23 believe --

52:01 A. The poster.

52:02 Q. The poster, yeah.

52:03 A. Yeah.

52:04 Q. Okay. Can you -- after the 2002

52:05 testing that we just described, when was the

52:06 next time you tested the Combat Arms

52:07 Version II?

52:08 A. This was conducted in 2015.

52:09 Q. Okay. And what was this testing?

52:10 A. In the left photograph in the

52:11 poster, you see a very large horn. And in

52:12 front of the horn are two of the GRAS Sound and

52:13 Vibration 45 CB acoustic test fixtures. One of

52:14 those fixtures was owned by NIOSH. The other

52:15 of those fixtures was owned by Western Michigan

52:16 University. And in between those two fixtures

52:17 is a pencil or a cylinder that you see there

52:18 with kind of a pointy end. And that is the

52:19 GRAS Sound and Vibration 67 SB probe

52:20 microphone.

52:21 Q. And these -- these heads, these

52:22 mannequin heads that we can see in the photo,

52:23 is that a sort of new test fixture that was

53:01 used --

53:02 A. Correct.

53:03 Q. -- for this testing?

53:04 A. Correct. In 2010, you see it

53:05 listed right there at the top there, the ANSI

53:06 12.42-2010 standard was issued. And one of the

53:07 things we identified was a need to have longer

53:08 ear canals. These fixtures were manufactured

53:09 with approximately an 18 millimeter ear canal,

53:10 which would allow one to fit a typical foam

53:11 earplug or other earplug fully into the ear

53:12 canal and not bottom out at the -- at the grid

53:13 of the microphone in the middle ear simulator.

53:14 Q. It also looks from the photo like

53:15 these mannequins have a -- a pinna, like a --

53:16 A. Yes. They have a pinna that's

53:17 based on a human shaped pinna. You see the

53:18 flesh-shaped color ring around that. That's so

53:19 that when you put an earmuff or something on

53:20 it, you're making contact with something that

53:21 has the -- the typical Shore resistance as what

53:22 you might see with skin. Inside of the ear

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53:23 canal of those mannequins, it's a steel tube.

54:01 Lining this steel tube is the same kind of

54:02 material that you see on the outside there, the

54:03 -- the flesh colored silicone material.

54:04 Q. How -- how were the Combat Arms

54:05 plugs, the Version II plugs, fit on this

54:06 mannequin during this testing?

54:07 A. They were fitted so that you could

54:08 get the entire earplug in -- well, the entire

54:09 three flanges inserted into the mannequin's

54:10 ear. And the flanges were not folded back.

54:11 Q. When you say the flanges were not

54:12 folded back, you mean on the opposite end?

54:13 A. Correct.

54:14 - 54:19 Murphy, William (2021-01-15) 0:11

54:14 Q. Did you have any problems Re: [54:14 to 54:19] OVERRULED

54:15 achieving or maintaining a good fit with the Def Obj Improper counter

54:16 Combat Arms Version II during this testing?

54:17 A. No. The mannequins didn't move. Re: [54:18 to 54:19] SUSTAINED

54:18 Q. Okay. And can you -- Def Obj Non-responsive,

54:19 A. They didn't complain. relevance, prejudice (611,

403)

54:20 - 56:18 Murphy, William (2021-01-15) 3:35

54:20 Q. I think I'm probably running

54:21 pretty short on time. But can you give us a

54:22 sort of a high level overview of the results

54:23 of --

55:01 A. Right. So there are -- if you can

55:02 slide over a little bit. Yeah. Blow up the

55:03 panel on your -- the panel in the middle there,

55:04 blow it up a little bit more. There is a CAEv4

55:05 and a CAEv2. And the CAEv2, there are two sets

55:06 of three bars. And I would have to look

55:07 closely at it to remember which ones are the

55:08 Western Michigan -- oh, it says it right there.

55:09 Western Michigan are the three bars to the

55:10 right. And the NIOSH fixture are the three

55:11 bars to the left. If you can zoom it in a

55:12 little bit more, please, that would be helpful.

55:13 There we go.

55:14 So we're looking at the Combat Arms

55:15 Version II. You'll see that there are a

55:16 blue -- a dark blue, a light -- a lighter blue,

55:17 and sort of a teal colored, and then a green,

55:18 orange, and yellow colored bar. These

55:19 represent three different peak levels that were

55:20 generated by the acoustic shock tube at 132,

55:21 150, and 168 decibel peak sound pressure level.

Page 18 of 21

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55:22 And we have different amounts of attenuation

55:23 that are observed on these devices. And this

56:01 is the impulse peak insertion loss.

56:02 And what it is, is we use calculation to

56:03 compensate for the fact that the person or that

56:04 the fixture is occluded versus unoccluded. And

56:05 we impute what the -- estimate what the peak

56:06 level would have been for a shot based on the

56:07 acoustic transfer function between that

56:08 pressure probe that you saw in the middle of

56:09 the two mannequins and the ear canal of the

56:10 unoccluded fixture.

56:11 And so we're seeing levels of attenuation at

56:12 132 of about ten decibels. At 150 dB we're

56:13 seeing attenuation levels of around 17 or 18

56:14 decibels. And at 168 dB we're seeing

56:15 attenuation levels of 32 to 35 decibels. The

56:16 little blips that you see on the tops of those

56:17 bars are the standard deviation -- one standard

56:18 deviation.

61:13 - 62:09 Murphy, William (2021-01-15) 1:58

61:13 Q. (Mr. Monsour) You were talking Re: [61:13 to 62:09] SUSTAINED

61:14 with regard -- you mentioned before how Def Obj Improper counter

61:15 mannequins don't move. Correct, Dr. Murphy?

61:16 A. They usually don't.

61:17 Q. Right. They -- I agree. They

61:18 usually don't. And one of the points that you

61:19 made with regard to fit was that the mannequins

61:20 don't move. Correct?

61:21 A. Correct.

61:22 Q. And why is it important to

61:23 calculate that or factor that in, in a study

62:01 that is going to be potentially used to

62:02 attribute study response from a mannequin into

62:03 its application for humans?

62:04 A. The reason we use a mannequin for

62:05 the testing is because it would be unethical to

62:06 expose a human to these noise levels.

62:07 Q. Do you --

62:08 A. We could produce hearing loss in

62:09 our human subjects.

62:10 - 63:12 Murphy, William (2021-01-15) 2:37

62:10 Q. Okay. Do you -- do you

62:11 necessarily assume that because testing on a

62:12 mannequin that doesn't move reaches a certain

62:13 level of protection that an actual human user

62:14 that does move will get the same protection?

62:15 A. Just one moment. I'm making sure

Page 19 of 21

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62:16 that there's nobody knocking on the door. I

62:17 heard something. Do we assume that the person

62:18 who's using the earplug has the same protection

62:19 as what we measure? That, of course, is an

62:20 assumption in any hearing protector

62:21 measurement. If you look at the regulation

62:22 that governs the creation of the noise

62:23 reduction rating for a hearing protection

63:01 device, it is designed to provide one with an

63:02 indication of the potential for the noise

63:03 reduction capabilities of that hearing

63:04 protection device. And so there's no

63:05 regulation in the United States for describing

63:06 the performance of these protection devices in

63:07 regards to impulse noise. There is a

63:08 regulation that governs -- and it's 40 CFR 211

63:09 subpart B that describes and regulates how a

63:10 manufacturer is required to measure and report

63:11 the attenuation of a hearing protection device

63:12 for sale in the United States.

63:23 - 65:04 Murphy, William (2021-01-15) 2:38

63:23 Q. The first two exhibits that you Re: [63:23 to 65:04] Re: [63:23 to 65:04]

64:01 looked at, Dr. Murphy, detailed some early Pltf Obj cumulative SUSTAINED

64:02 testing that you had done on the product in

64:03 2001 and 2002. Is that correct?

64:04 A. Yes.

64:05 Q. And in both of those studies or

64:06 both of those tests that you performed, you

64:07 mentioned that the third flange of the inserted

64:08 portion of the Combat Arms Version II Earplug

64:09 was just barely touching the outside of the

64:10 artificial canal. Is that correct?

64:11 A. Correct.

64:12 Q. Is it a fair statement to say,

64:13 sir, that because the part that was being

64:14 inserted was barely touching the outside of the

64:15 canal, that the opposing outer flange was not

64:16 pressing upon the artificial ear canal?

64:17 A. It wouldn't have been pressing on

64:18 the ear canal. It may have been in contact

64:19 with the concha, which is the -- if you look at

64:20 your ear, this portion where I'm sticking my

64:21 finger is the concha. It could have been

64:22 contacting the -- the anterior portion of the

64:23 concha. Whether that would provide a force --

65:01 an outward force, you know, a lateral force,

65:02 that would not be the case because if it's just

65:03 a side friction force, it's not going to do

65:04 anything.

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Case 7:20-cv-00094-MCR-GRJ Document 116-1 Filed 05/13/21 Page 319 of 320
69:02 - 69:14 Murphy, William (2021-01-15) 1:49

69:02 Q. Right. Re: [69:02 to 69:14] Re: [69:02 to 69:14]

69:03 A. If you have -- if you have not Pltf Obj incomplete, SUSTAINED-Nonresponsive

69:04 fitted the earplug properly in your ear, you nonresponsive

69:05 can have very poor attenuation. If you have an

69:06 earmuff that gets moved in the course of firing

69:07 a weapon or something like that, you can end up

69:08 with a threshold shift as a result of that.

69:09 The -- the reason that we did this research is

69:10 because when you fire a weapon that's 150, 160,

69:11 170 decibels at the ear canal -- and I'm only

69:12 talking about small arms fire -- those levels

69:13 are enough to cause immediate threshold shifts.

69:14 And they can be permanent threshold shifts.

70:20 - 72:05 Murphy, William (2021-01-15) 2:34

70:20 Q. (Ms. Monsour) Isn't it a fair Re: [70:20 to 72:05] Re: [70:20 to 72:05]

70:21 statement, sir, that when you're performing Pltf Obj nonresponsive SUSTAINED-Nonresponsive

70:22 acoustic tests on an acoustic test fixture,

70:23 that because it is not a real ear, the data

71:01 from it is not necessarily representative of

71:02 what will happen in a real ear? Is that a

71:03 fair --

71:04 MS. SASLAW: And again, I'm going

71:05 to -- sorry to cut you off. I'm going to

71:06 object on the basis that it's outside the scope

71:07 of the authorization.

71:08 MR. MONSOUR: Jesus.

71:09 THE WITNESS: Well, I'm -- I'm

71:10 going to answer this question against your --

71:11 over your objection.

71:12 A. And that is that this presentation

71:13 was done in 2002. And we had not conducted any

71:14 analysis of the attenuation as a function of

71:15 frequency and done comparisons with real ear

71:16 attenuation and threshold testing, which really

71:17 is at the heart of this whole -- some of this

71:18 lawsuit that we're dealing with here. And in

71:19 the testing that we did, we were able to

71:20 demonstrate that the attenuations that we were

71:21 seeing for the products was representative of

71:22 real ears in terms of what we were seeing.

71:23 We had measurements of the acoustic test

72:01 fixture in continuous noise. We had

72:02 measurements of the acoustic test fixture in

72:03 impulse noise. And we had real ear attenuation

72:04 and threshold testing with human subjects. And

72:05 the results agree.

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