EXHIBIT 1
Richard S. Tyler, Ph.D.

Golkow Litigation Services Page 1

 1 UNITED STATES DISTRICT COURT

 NORTHERN DISTRICT OF FLORIDA

 2 PENSACOLA DIVISION

 3

 4 IN RE: 3M COMBAT ARMS )

EARPLUG PRODUCTS )

 5 LIABILITY LITIGATION )

 )

 6 This Document Relates to: ) Case No.

Shanika Roper ) 3:19-md-2885-MCR-GRJ

 7 )

 Plaintiff ) Judge M. Casey Rodgers

 8 ) Magistrate Judge Gary R.

Case No. ) Jones

 9 7:20-cv-02945-MCR-GRJ )

 )

10 --------------------------)

11

12

13 THE VIDEO TELECONFERENCE DEPOSITION OF

14 RICHARD S. TYLER, Ph.D., taken before Kristi L.

15 Miller, Certified Shorthand Reporter and Notary

16 Public, commencing at 9:00 a.m., C.S.T., July 1,

17 2022, with all parties appearing remotely.

18

19

20

21

22 Reported by: Kristi L. Miller, C.S.R.

23

24 GOLKOW LITIGATION SERVICES

 877.370.3377 ph | 917.591.5672 fax

25 Deps@golkow.com
Richard S. Tyler, Ph.D.

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 1 of your case-specific expert report; correct?

 2 Do I need to make that larger? I can't see how

 3 large it is on your screen.

 4 A. Yeah, a little bit larger would help.

 5 Q. Sure. Let me see if I can do that.

 6 Is that better?

 7 A. Oh, much better, yes.

 8 Q. So this is the First Amended

 9 Case-Specific Report of Doctor Richard Tyler.

10 Is this the amended report that

11 was served, I believe, yesterday?

12 A. I believe that's correct, yes.

13 Q. Okay. And so I'm just going to scroll

14 down quickly. I'm not asking you to read this

15 as I go, obviously. And just down to page 12

16 of your -- the numbered page 12, and that's

17 your signature; correct?

18 A. Yes, it is.

19 Q. And dated yesterday?

20 A. That's correct, yes.

21 Q. And so what changes did you make to

22 your report between the first report and this

23 amended report?

24 A. Can we go --

25 MR. BAUER: Can I interject?
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 1 that you intend to testify to at trial, if we

 2 go to trial in this case?

 3 A. Yes, it does.

 4 Q. Okay. Other than counsel, did you

 5 consult anyone as you were preparing this

 6 report?

 7 A. No, I did not.

 8 Q. On page 1 of this report under Summary

 9 of Opinions here, it states that you relied

10 upon the general causation opinions of Rich

11 McKinley, Mark Packer, Christopher Spankovich,

12 and refer to them as the general experts.

13 What did that review entail for

14 you?

15 A. Well, they each had quite lengthy

16 reports, and so I read those reports carefully.

17 Several times, actually.

18 Q. And did you read those reports

19 specifically for this case or generally for all

20 of the 3M cases?

21 A. Well, I --

22 MR. BAUER: Objection, form.

23 A. I reread them for this case as well.

24 Q. And you're relying on those reports

25 for your opinions today; correct?
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 1 A. Well, I considered those. I'm not

 2 sure exactly what you mean by "rely."

 3 Q. Let me put it this way: You've

 4 reviewed these reports, but they're not -- the

 5 opinions expressed in those reports are not

 6 opinions that you're holding out as your own or

 7 plan to offer in this particular case; correct?

 8 A. That's correct. They were certainly

 9 relevant to my opinions, but I don't hold their

10 opinions as my opinions.

11 Q. Understood. Did you review all of the

12 underlying documents and citations related --

13 that were listed in these general reports?

14 A. Yes, I did.

15 Q. Okay. Did you do any formal analysis

16 or independent research to determine if there

17 were contrary opinions to those expressed in

18 these reports?

19 A. Well, I did some Google searches on

20 the topics, but I can't say that I've actually

21 seen anything that has directly opposed these

22 reports.

23 Q. So you haven't reviewed, for example,

24 any of the other -- any of the defense general

25 expert reports?
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 1 fair to say, specific to this case following

 2 that same caveat?

 3 A. Well, again, it might depend on what

 4 the definition of "specific to this case" is,

 5 but I could generally agree with you.

 6 Q. That's fair. Have you reviewed all of

 7 the available medical records in this case?

 8 A. I believe that I have, yes.

 9 Q. Okay. Do you agree that it's

10 important to analyze all of the available

11 medical records to form your opinions on a

12 patient's medical state?

13 A. Yes, I do.

14 Q. Okay. And do you believe that you've

15 been provided all of the information necessary

16 to reach your opinions in this case?

17 A. Yes, I do.

18 Q. Okay. Did you make any independent

19 effort, meaning aside from what was provided to

20 you by counsel, to get any records other than

21 those provided to you by Mr. Bauer or any other

22 plaintiffs' attorney?

23 MR. BAUER: Objection, form.

24 A. I did talk with the plaintiff, and I

25 thought that was important.
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 1 Q. Oh, absolutely. I'm speaking

 2 specifically to this Exhibit A at this point.

 3 A. Oh.

 4 Q. Do you know approximately how many

 5 pages of medical records you received and

 6 reviewed in this case?

 7 A. No, I do not.

 8 Q. Okay. So I think I did some

 9 back-of-the-envelope math, and you've listed on

10 this list, let's say, around between 30 and

11 50 pages of medical records on this list.

12 Is that a fair sort of addition

13 of the Bates numbers on here?

14 A. I'd guess that's correct, yes.

15 Q. Were there other medical records

16 provided or just these?

17 A. With respect to this particular case,

18 just these.

19 Q. Would it surprise you to know that

20 there are over 6,164 pages of medical records

21 received from the VA and Department of Defense

22 related to this plaintiff?

23 A. Well, I guess that large number would

24 surprise me, yes.

25 Q. So granting that we have 30 to 50
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 1 pages listed here, you haven't reviewed the

 2 other 6,114 pages of those records; is that

 3 fair?

 4 MR. BAUER: Objection, form.

 5 A. Well, I don't know what all the

 6 records are, but I'm sure a lot of them are not

 7 related to hearing and tinnitus and

 8 hyperacusis, so certainly, as I said, these are

 9 the ones that I reviewed.

10 Q. That's fair. Did you review any of

11 the over 300 pages that were retrieved from

12 Ms. Roper's Tricare patient portal?

13 A. I don't have a recollection of that.

14 I'd have to look at them.

15 Q. Okay. So did you ask for any

16 documents in addition to the 30 to 50 pages

17 that you have mentioned here, plus the other --

18 the deposition and the DME data?

19 A. No, I did not.

20 Q. Okay. So you didn't review

21 plaintiff's records related to her arthralgia

22 of bilateral temporomandibular joint?

23 MR. BAUER: Objection, form.

24 A. That's correct.

25 Q. You didn't review any records related
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 1 to the plaintiff's major depressive disorder?

 2 A. Well, I understand she was going

 3 through some other things, but I did not review

 4 those, no.

 5 Q. Okay. You haven't reviewed the

 6 transcript of the deposition of plaintiff's

 7 ex-husband Calvin Lockwood; correct?

 8 A. I'd have to check the records if I

 9 did, but I don't remember that.

10 Q. Okay. So in this case you reviewed

11 the records that were provided to you by

12 plaintiff's counsel and you didn't ask for any

13 additional records; is that fair?

14 A. Yes, that's fair.

15 Q. Okay. And the plaintiff in this case

16 is Shanika Roper; correct?

17 A. Correct.

18 Q. Okay. I'm going to scroll back up

19 here to the -- I believe it's the bottom of

20 page 1 here of your report. I'm going to read

21 this last sentence.

22 It says, "These flaws and the

23 resulting inadequate fit, seal and/or continued

24 seal/retention and the imperceptible loosening

25 of the CAEv2 in Plaintiff while exposed to
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 1 Q. Okay. But with respect to your

 2 telehealth visit with the plaintiff, you didn't

 3 perform any tests to diagnose tinnitus based on

 4 your statement that there aren't any tests to

 5 diagnose subjective tinnitus; is that fair?

 6 A. That's correct, yes.

 7 Q. Okay. Earlier you mentioned that you

 8 don't necessarily follow the belief that there

 9 may be a genetic component to tinnitus; is that

10 correct?

11 A. That's correct, yes.

12 Q. Do you believe there is any genetic

13 component to hyperacusis?

14 A. There may be. This has not been well

15 described yet, but I'm not aware of any good

16 data that indicates that it is.

17 Q. Okay, gotcha. In your practice do you

18 ever fit patients with hearing protection

19 devices?

20 A. I often pass out some earplugs, but I

21 don't fit them or guide them along those lines.

22 Q. Would those be sort of like the foam

23 roll-type earplugs?

24 A. They would, yes.

25 Q. Okay. Do you perform any testing when
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 1 you hand out those earplugs, any sort of

 2 measurements of the ear canal or fit tests?

 3 A. No, I do not. I think they generally

 4 fit a wide range of people. There's not a lot

 5 of, wide range of ear canal sizes. And I use

 6 them on a very regular basis and they're quite

 7 easy to insert and expand and cover your ear

 8 canal quite nicely.

 9 Q. Okay. Do you train patients on how to

10 insert hearing protection devices such as the

11 earplugs you just mentioned?

12 A. No, I don't. As I said, it's pretty

13 straightforward.

14 Q. Okay. And you noted in your expert

15 report that you have inserted the Combat Arms

16 Earplugs Version 2 into your own ears; is that

17 correct?

18 A. That's correct, yes.

19 Q. And what's the proper method of

20 inserting those earplugs into the ear?

21 A. Well, I'd have to go back and look at

22 the directions again, but my memory is you

23 reach one hand over your head, pull up on the

24 back of your ear lobe and then insert the

25 flange with your other hand directly into your
Richard S. Tyler, Ph.D.

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 1 that you've rendered in this case are related

 2 solely to this case and not to any of the other

 3 3M cases; correct?

 4 A. That's correct, yes.

 5 Q. All right. Thank you. Doctor Tyler,

 6 when you conducted your interview with the

 7 plaintiff in this case, did you ask the

 8 plaintiff to demonstrate how she used the

 9 Combat Arms Earplugs Version 2 when she was in

10 the service?

11 A. No, I did not. I did not think that

12 was relevant.

13 Q. Why wouldn't that be relevant, in your

14 opinion?

15 A. Well, she was provided instructions on

16 how to do it. My understanding is instructions

17 came with these devices.

18 And even if she had put them in

19 properly, they were known to come out on their

20 own, and just watching her put them in once

21 wouldn't really document accurately how well

22 she put them in for her time in the military.

23 Q. Let's see here. And, similarly, you

24 didn't personally observe the plaintiff insert

25 any other type of earplug or use any other type
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 1 of hearing protection; correct?

 2 A. Well, my understanding is there's no

 3 other concerns within the companies or within

 4 the field in general that any other earplugs

 5 come out after they're inserted correctly or

 6 incorrectly, so I'm not sure -- I did not do

 7 that, no.

 8 MR. OLSON: I'm going to move to

 9 strike the nonresponsive portion.

10 Q. So just to clarify then, you've never

11 examined the fit of plaintiff wearing any form

12 of hearing protection device; is that fair?

13 A. Well, as I said, I did not think that

14 was relevant, so I did not do that, no.

15 Q. Okay. And you didn't do any

16 examination of the plaintiff's ear canals or

17 anything like that to determine any questions

18 related to fit; correct?

19 A. I think the 3M earplugs in question

20 were designed to fit a wide range, and I don't

21 know that there's any -- there's not a wide

22 range of ear canals in adults anyways, and it's

23 never an issue that I'm aware of in hearing

24 protection use. Very rarely anyways.

25 Q. Okay. Do you ever or have you ever
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 1 made molded ear impressions of an individual's

 2 ear canals?

 3 A. I probably have a long time ago for

 4 fitting hearing aids.

 5 Q. You didn't of this plaintiff; correct?

 6 A. No, I did not.

 7 Q. So just to clarify, you also haven't

 8 reviewed any records describing the

 9 measurements of plaintiff's ear canals;

10 correct?

11 And I understand that you didn't

12 think it was relevant, but just you haven't

13 reviewed those; correct?

14 A. I wasn't aware there were any of those

15 measurements.

16 Q. Okay. And so what methodology did you

17 use to reach your opinions that you've rendered

18 in this case?

19 A. Well, my opinions on the inadequacies

20 of the 3M earplugs in question were based on

21 the internal documents of the 3M engineers

22 requesting that they be recalled to their

23 supervisors, the supervisors not doing that

24 and, therefore, the earplugs could come out and

25 not be effective, and the notion that even
Richard S. Tyler, Ph.D.

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 1 short-term direct exposure -- short-term

 2 exposure to intense impulsive noise can create

 3 tinnitus and hyperacusis. It can even just be

 4 one event. And I relied on my interactions

 5 with the client and her discussions of her

 6 reactions with her tinnitus and her

 7 hyperacusis.

 8 Q. Okay. Your expert opinion reflects

 9 that you conducted a differential diagnosis; is

10 that correct?

11 A. Well, it depends how you define a

12 "differential diagnosis." As I said, I was not

13 present with her. I don't think there's any

14 question that she doesn't have any other ear

15 disease or medical condition that relates to

16 the tinnitus or hyperacusis.

17 Q. What I mean by conducting a

18 differential diagnosis was you considered

19 certain potential causes for her tinnitus, and

20 then you ruled out all the causes but the

21 Combat Arms Version 2 Earplugs; is that

22 correct?

23 A. Well, I thought that was the most

24 probable cause in this case.

25 Q. Okay. Did you assign a percentage to
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 1 how likely you thought that the Combat Arms

 2 Earplugs caused her injuries in this case?

 3 A. No, I did not think that was

 4 necessary.

 5 Q. Okay. If you were to assign a

 6 percentage of contribution to the Combat Arms

 7 Earplugs Version 2, would that percentage be

 8 100 percent, or would it be something less?

 9 MR. BAUER: Objection, form.

10 A. Well, I would not do that. It's not

11 possible to know anything with 100 percent

12 accuracy in situations like this.

13 Q. So there's the possibility of other

14 contributing causes?

15 A. Yes, I can agree with that.

16 Q. And are you offering the opinion that

17 the plaintiff would have no tinnitus but for

18 her use of the Combat Arms Earplugs Version 2?

19 MR. BAUER: Objection, form.

20 A. Well, again, my understanding was that

21 I only had to be 51 percent sure about that.

22 And so I could say that exposure to noise was

23 the most likely cause here while using these

24 defective earplugs.

25 Q. And would you agree that the plaintiff
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 1 I think we can both agree that

 2 the report of an M16 would be considered to be

 3 a "loud noise"; is that fair?

 4 A. Yes. Likely an impulsive noise, yes.

 5 Q. I can stipulate to that for these

 6 questions at least. The same for an M9 pistol?

 7 A. That's correct, yes.

 8 Q. Okay. Do you know how often the

 9 plaintiff would train with these firearms?

10 A. No, I do not.

11 Q. Do you know what hearing protection

12 the plaintiff used when she was training with

13 these firearms?

14 A. My recollection is from the review

15 that I said it was not clear what she was

16 using, but I don't know the answer to that.

17 Q. So we can't be sure today that the

18 plaintiff was using the Combat Arms Earplugs

19 every time she utilized the M16 and M9 firearms

20 at the firing range; is that fair?

21 A. Yes, I agree with that.

22 Q. Okay. And, in fact, I think she

23 testified in her deposition that she used foam

24 earplugs on at least one or two occasions; is

25 that correct?
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 1 A. I believe that's true, yes.

 2 Q. Did you consider the amount of times

 3 that the plaintiff trained with those firearms

 4 when you were rendering your opinion that her

 5 tinnitus is the result of the Combat Arms

 6 Earplugs?

 7 MR. BAUER: Objection, form.

 8 A. My recollection is it was not clear

 9 exactly how many times or how many impulses she

10 was exposed to, so I only did that in a general

11 way.

12 Q. And those are things that you would

13 need to know to be able to render that opinion,

14 correct, the number times and the number of

15 shots?

16 A. Well, it would help to be more

17 specific, but I wouldn't say it's essential to

18 understand. You know, as I said, somebody can

19 get tinnitus or hyperacusis or hearing loss

20 from a single gunfire, so it's different in

21 different people, too.

22 Q. Perfect. And so you'd need to know --

23 but you'd certainly need to know to render that

24 opinion when the plaintiff had used the Combat

25 Arms Earplugs versus other hearing protection;
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 1 is that fair?

 2 A. Well, that would be relevant in this

 3 case, yes.

 4 Q. And so you just testified that, you

 5 know, one report or one exposure to a loud

 6 sound can cause hyperacusis or tinnitus; is

 7 that correct?

 8 A. That's correct, yes.

 9 Q. So if we don't know that, for example,

10 the plaintiff utilized the Combat Arms Earplugs

11 in every situation, then we don't know for sure

12 that her hearing -- or that her tinnitus and

13 hyperacusis were caused by those earplugs; is

14 that correct?

15 MR. BAUER: Objection, form.

16 A. Well, I guess one could say that we

17 don't know with 100 percent certainty, but as

18 far as I know the 3M earplugs in question were

19 the only ones identified as being faulty and

20 would come out over time.

21 Q. Have you reviewed any internal

22 documents from any other manufacturers of

23 earplugs?

24 MR. BAUER: Objection, form.

25 A. Well, as I said, I'm not aware that
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 1 any of them have been recalled, so I'm not sure

 2 that's relevant. I think that particularly

 3 with what's going on now with the faulty 3M

 4 earplugs, if there was some internal reports,

 5 the companies would call them back as soon as

 6 possible.

 7 MR. OLSON: I'm going to move to

 8 strike that as nonresponsive.

 9 MR. BAUER: How is that not

10 responsive to your ridiculous question?

11 MR. OLSON: I'm going to ask

12 counsel to avoid from characterizing the

13 question.

14 Q. My question was, have you reviewed the

15 internal documents of any other company that

16 manufactures hearing protection devices?

17 MR. BAUER: Objection, asked and

18 answered. Move on. That doesn't matter.

19 THE WITNESS: Should I respond?

20 MR. OLSON: Are you instructing

21 Doctor Tyler not to answer that question?

22 MR. BAUER: He already answered

23 your question, so move on.

24 Q. Well, then let me clarify. Doctor

25 Tyler, that's a no; correct?
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 1 relevant time period that she would go to the

 2 range and shoot recreationally as well; is that

 3 correct?

 4 A. Yes, that's correct.

 5 Q. Do you know what hearing protection

 6 devices the plaintiff used when she was

 7 shooting recreationally?

 8 A. No, I do not.

 9 Q. All right. Do you know whether the

10 plaintiff used hearing protection devices while

11 she was shooting recreationally?

12 A. I don't recall specifically. I think

13 when I did talk to her about this she said she

14 wore them sometimes, but not all the time.

15 Q. Okay. Are you aware that the

16 plaintiff attended athletic events, let's say,

17 professional athletic events with her

18 ex-husband, Calvin Lockwood?

19 A. Yes.

20 Q. And you're aware that she attended

21 Atlanta Falcons games; correct?

22 A. Yes.

23 Q. Let's see here. Are you aware of

24 the research indicating that the average

25 decibel level at an NFL game ranges from 85 to
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 1 110 decibels with an average decibel level of

 2 95?

 3 A. So that's a clear example about

 4 whoever reported that doesn't know how to

 5 measure sound. Sound is not measured in

 6 decibels. It has to have a unit associated

 7 with it.

 8 Q. Okay. So are you aware of a situation

 9 where the Atlanta Falcons, which was the NFL

10 games that the plaintiff attended, were fined

11 by the NFL for piping in additional crowd noise

12 over the PA system?

13 MR. BAUER: Objection, form.

14 A. I don't recall that, but I think I

15 might recall that basically. I'm not sure.

16 Q. Do you know whether the plaintiff wore

17 hearing protection devices while she attended

18 the Atlanta Falcons games?

19 A. I don't recall exactly. I do not

20 think she did, but I'm not sure.

21 Q. Okay. Did you consider the noise

22 exposure at NFL games in your differential

23 diagnosis?

24 A. I did, yes. It's usually not

25 impulsive noise and it's usually not, you know,
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 1 mail building that it was once hit by an

 2 explosion; is that correct?

 3 A. I believe that's true, yes.

 4 Q. Do you know whether the plaintiff wore

 5 hearing protection devices while she was

 6 working in the mail building?

 7 A. My recollection is that she did not.

 8 Q. Do you know about the setting of the

 9 mail building in Iraq?

10 A. I'm not sure I understand your

11 question.

12 Q. Are you aware that the mail building

13 where the plaintiff worked was at Baghdad

14 International Airport?

15 A. I'm sorry. Could you repeat that,

16 please?

17 Q. Are you aware that the mail building

18 where the plaintiff worked was at Baghdad

19 International Airport?

20 A. That sounds familiar, yes.

21 Q. And you're aware that Ms. Roper lived

22 in that building along with working in that

23 building; correct?

24 A. That sounds familiar, yes.

25 Q. Okay. You said you haven't reviewed
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 1 Mr. Lockwood's deposition testimony; is that

 2 correct?

 3 A. I don't recall if I did or not.

 4 Q. Okay. In his testimony -- and let me

 5 know if you'd like me to bring it up. I

 6 certainly can.

 7 He described the building which

 8 is located at Baghdad International Airport as

 9 being the site of constant explosions, rocket

10 fire, and small arms fire and described the

11 situation where a plane was hit by a mortar

12 while it was on the tarmac.

13 Are you familiar with that?

14 MR. BAUER: Objection, form.

15 Show that to him.

16 Q. Okay. I'll come back to that after

17 our next break so I don't waste time pulling it

18 up, so I'll come back to that then.

19 A. Okay.

20 Q. A few minutes ago I showed you the

21 plaintiff's response to Interrogatory 6, and

22 the other was -- we talked about the gun ranges

23 or the firing ranges, excuse me, and she also

24 indicated in that response that her exposure

25 was to military vehicles; is that correct?
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 1 MR. BAUER: If you're asking

 2 about Interrogatory 6, please show it to him.

 3 MR. OLSON: Okay. Not a

 4 problem.

 5 Q. All right. Doctor Tyler, I have that

 6 document I just showed you a little while ago,

 7 and I'm just highlighting the portion that I'm

 8 referring to here for your reference noting

 9 that she was exposed to noise-producing devices

10 while in the military while she was at the gun

11 range or during trips in military vehicles.

12 And I paraphrased slightly, but

13 I think that's a fair statement; is that

14 correct?

15 A. I see that, yes.

16 Q. Let's see here. Do you recall the

17 plaintiff's testimony regarding what hearing

18 protection devices she used while she was

19 driving the Humvee to pick up mail? Or excuse

20 me. I believe she was riding in it. I don't

21 believe she drove.

22 A. I do not recall that, no.

23 Q. And do you recall that when Ms. Roper

24 was working in the mail building that she

25 described being exposed to the noise from a
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 1 military forklift?

 2 A. Yes, I recall that.

 3 Q. And earlier we had noted that she

 4 wasn't wearing hearing protection when she was

 5 working in that mail building.

 6 Are you aware of the level of

 7 noise exposure that could be caused by that

 8 military forklift?

 9 A. Well, it would depend precisely on the

10 distance, and I presume the forklift -- I

11 haven't seen any data on the dBA levels

12 produced by that, and it's not clear how long

13 during the day and how close she would be to

14 the forklift, so --

15 Q. Okay.

16 MR. BAUER: I objected on mute.

17 Sorry. Objection, form.

18 MR. OLSON: Okay. Fair enough.

19 Q. Do you recall that the plaintiff

20 testified that she would wear the Combat Arms

21 Earplugs while she was -- at least some of the

22 time while she was on the firing ranges?

23 Do you recall which end she wore

24 at the time?

25 A. No, I did not -- I think that was in
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 1 the instructions and, again, I think that

 2 either end that went in could come out and not

 3 be effective.

 4 Q. With respect to the plaintiff's

 5 training sessions on the firing range, would

 6 you have recommended plaintiff use double

 7 hearing protection while she was on the firing

 8 range?

 9 A. Well, I could say on the one hand that

10 it would be useful if they knew what the

11 impulsive noise was and then that would be a

12 very clear response or clear guidance offered.

13 On the other hand, I can say

14 that hearing is so important and you don't want

15 to get tinnitus and hyperacusis that in all

16 situations where you were aware you were going

17 to be exposed to intense noise and you had the

18 ability to wear double hearing protection, that

19 would certainly be advisable.

20 Q. Were you aware of the number of

21 service members that were simultaneously

22 participating in weapons fire at the ranges

23 when the plaintiff was firing weapons?

24 A. I don't recall that.

25 Q. Same question, but when the plaintiff
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 1 was shooting recreationally.

 2 MR. BAUER: Objection, form.

 3 A. I'm not sure why this is a relevant

 4 question. I don't understand the question

 5 perhaps.

 6 Q. Okay. The number of -- just in terms

 7 of noise exposure, you'd agree that the dose of

 8 noise that an individual was receiving depends

 9 on a number of factors, including perhaps, as

10 we discussed earlier, the number of shots that

11 are fired, sort of the volume of noise

12 produced, whatever the units you want to use

13 are, by the firearms, but then also the number

14 of other service members that are firing

15 weapons at the same time?

16 I'm asking you whether that last

17 piece is fair.

18 A. I'm sorry. Yes, that is important,

19 yes.

20 Q. And we don't know the answer to that

21 question today, do we?

22 A. That's correct, we do not.

23 Q. Either for the military or for when

24 she was shooting recreationally?

25 A. That's correct, yes.
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 1 And then it goes on to note that

 2 the deuce and a half is slang for a

 3 two-and-a-half-ton truck. Is that fair?

 4 A. Yes, that's fair.

 5 Q. Then she goes on to eliminate any

 6 other vehicles and says those are the only two

 7 vehicles that she would have operated as a

 8 vehicle.

 9 Did you consider the number of

10 hours the plaintiff spent in the Humvee when

11 you were reaching your decision about causation

12 in this case?

13 A. Well, I didn't specifically ask her

14 about the number of hours because that would be

15 difficult for her to recollect specifically,

16 but I did consider that.

17 And, again, noise exposed in

18 either of these vehicles would be continuous

19 noise, not loud noise, and, again, if you can

20 talk to somebody sitting beside you in the

21 Humvee, then that would suggest that the noise

22 is not potentially dangerous.

23 Q. You'd agree that when a vehicle like a

24 Humvee is operating that the number of -- that

25 the amount of noise it emits varies based on,
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 1 for example, the speed and the load and things

 2 of that nature; correct?

 3 MR. BAUER: Objection, form.

 4 A. Well, I suppose that it would. Again,

 5 I think that most of the noise -- I would

 6 assume it's much louder outside, closer to

 7 where the engine is than it is internal, where

 8 the Humvee is designed so that you can talk to

 9 somebody sitting beside you, but I don't know

10 any details on the difference between the noise

11 levels in the Humvees.

12 Q. Do you know whether the Humvee that

13 the plaintiff rode in had a weapons placement

14 or other openings in the outside of the

15 vehicle?

16 A. No, I do not.

17 Q. Do you know the number of trips the

18 plaintiff made in the Humvee?

19 A. No, I do not.

20 Q. Okay. Do you know whether the

21 plaintiff wore hearing protection devices every

22 time that she rode in the Humvee?

23 A. My understanding is that she did not.

24 Q. And do you know which hearing

25 protection device she used when she rode in the
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 1 vehicle?

 2 A. No. And my recollection is that was

 3 unclear when I talked to her about those sorts

 4 of things.

 5 Q. When you spoke to the plaintiff, did

 6 you ask her to describe the Combat Arms

 7 Earplugs?

 8 A. No, I don't think I did.

 9 Q. Are you aware that when she was asked

10 in deposition if she could recollect what those

11 Combat Arms Earplugs looked like, she was

12 unable to describe them?

13 A. Yes, I do recall that in her

14 deposition.

15 Q. Okay. Would you consider the athletic

16 events that we've spoken about -- and I can ask

17 these questions individually. I'll just do

18 that.

19 With respect to the plaintiff's

20 attendance at the NFL games, would you describe

21 the noise that she was exposed to at those NFL

22 games as potentially hazardous?

23 MR. BAUER: Objection, form.

24 A. Well, again, it would depend on the

25 intensity of the noise on her ears, and these
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 1 MR. BAUER: Thank you.

 2 Q. Doctor Tyler, when did the plaintiff

 3 start using Combat Arms Earplugs during her

 4 service?

 5 A. I don't recall. I'd have to go back

 6 and look at the record.

 7 Q. Would it be fair to say that it was

 8 prior to her deployment to Iraq in 2003?

 9 A. I don't recall. I'd have to go back

10 and look.

11 Q. Okay. Do you recall seeing an

12 audiogram from 2005 that reflected that she

13 reported using hand-formed earplugs at that

14 time?

15 MR. BAUER: Objection, form. If

16 you're going to ask about a document, please

17 show it.

18 A. Yeah, can you show it to me, please?

19 Q. I'll pull it up when we go to break

20 here. I'll ask a couple more questions first,

21 though.

22 Are you offering an opinion

23 today that safer alternative earplug designs

24 were available which would have reduced or

25 eliminated the plaintiff's risk of
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 1 noise-induced tinnitus and hyperacusis in the

 2 military?

 3 A. Absolutely. I don't think that's in

 4 question.

 5 Q. Is it your opinion that -- well, let

 6 me take a step back.

 7 What safer alternative designs

 8 are you referring to?

 9 A. Well, there's a wide variety of other

10 hearing protection devices that were and are

11 currently available that have not been

12 acknowledged to have any deficits to them, so I

13 think there's several different devices that

14 she could have used.

15 Q. Is it your opinion that because a

16 hearing protection device has not been

17 acknowledged to have a problem that it does not

18 have a problem?

19 A. Well, I think that any manufacturer of

20 a hearing protection device would want to

21 monitor that very carefully, especially as an

22 example of what's happened in these 3M cases in

23 the last year, is that I'm sure that every

24 other company from now on in is going to be

25 very careful to make sure that there's no
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 1 Okay. Doctor Tyler, this is the

 2 list I was referring to in your report;

 3 correct?

 4 A. Yes, I believe that's correct.

 5 Q. And there are a number of these

 6 medications that have been found to have

 7 ototoxic effects; is that correct?

 8 A. That's correct.

 9 MR. BAUER: Objection, form.

10 Q. I'll just point to a couple of these

11 and ask you to tell me -- I'm going to ask you

12 a question about them.

13 Let's look at the first one on

14 the list. Oxycodone acetaminophen, that's been

15 identified as a potentially ototoxic

16 medication; correct?

17 A. Well, I don't have all of these

18 memorized, but I think that's true.

19 Q. Are you aware of what dose is required

20 for oxycodone acetaminophen to have ototoxic

21 effects?

22 MR. BAUER: Objection, form.

23 A. Well, that would depend highly on the

24 individual.

25 Q. Okay. And, again, going down a little
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 1 bit further, you see where it says ibuprofen on

 2 your list here?

 3 A. I do, yes.

 4 Q. And then also over on this other side

 5 it says naproxen; correct?

 6 A. Yes.

 7 Q. Ibuprofen and naproxen are

 8 nonsteroidal antiinflammatory drugs; correct?

 9 A. I'd have to check, but I believe

10 that's true.

11 Q. Commonly referred to as NSAIDs;

12 correct?

13 A. I believe that's true.

14 Q. And NSAIDs have generally been -- have

15 been found to have ototoxic effects; correct?

16 A. Well, several medications are listed

17 in part because the companies want to prevent

18 themselves from being sued. If they have a

19 warning of a hearing loss and tinnitus and

20 hyperacusis, some of the companies do that,

21 although the likelihood of getting hearing

22 loss, tinnitus, and hyperacusis from most of

23 the medications is very low.

24 Q. Okay. Are you aware of any medical --

25 any sort of consensus in the medical community
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 1 frequencies and create a noise-induced notch.

 2 So we can see in this audiogram

 3 there's a noise-induced notch at 6,000 hertz in

 4 the left ear and looks like at 6,000 hertz in

 5 the right ear, so that's consistent with a

 6 noise exposure, not consistent with a hearing

 7 loss due to medications.

 8 Q. Doctor, a general question. Is it

 9 possible to have a noise notch when you don't

10 have evidence that the hearing improves?

11 So, for example, looking at

12 these 6,000 hertz levels, there's no 8,000 or

13 10,000 where we can see that notch kick back

14 up; is that correct?

15 A. That's correct.

16 MR. BAUER: Objection, form.

17 A. But we do -- you know, it doesn't

18 always -- it depends on the severity, and there

19 is also some more recent evidence that suggests

20 that the noise exposure can create high

21 frequency losses above 6,000 and above 8,000

22 hertz.

23 Q. And just to clarify -- maybe this is a

24 question for Josh. There is no hearing loss

25 claim here, correct, in this case?
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 1 correct?

 2 A. That's correct, yes.

 3 Q. And also when the plaintiff was not

 4 using any hearing protection at all; correct?

 5 A. That's correct, yes.

 6 Q. You ruled out the ototoxic drugs that

 7 we discussed; correct?

 8 A. Correct. Again, I had to do 51 percent

 9 causative.

10 Q. Earlier I had asked you what the

11 percentage was that you had placed on this.

12 Your testimony is that it's more than 51 percent,

13 but you don't have a particular percentage?

14 A. No. It's hard to know precisely.

15 Q. All right. Did you consider as a

16 cause or contributing factor to tinnitus

17 arthralgia of bilateral TMJ?

18 A. Temporomandibular joint disorder; is

19 that what you're referring to?

20 Q. Yes, I am.

21 A. So it's not clear in my mind that

22 temporomandibular joint disorder results in

23 sensorineural tinnitus.

24 Q. How would you describe the plaintiff's

25 experience of tinnitus? And what I mean by
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 1 that is the description that the plaintiff

 2 gives to tinnitus.

 3 A. I'm not sure I understand your

 4 question.

 5 Q. Well, some plaintiffs -- for example,

 6 some people describe it as a ringing or buzzing

 7 sound, something like that.

 8 MR. BAUER: Objection, form.

 9 Can you just restate the question, please,

10 Counsel?

11 MR. OLSON: Absolutely.

12 Q. Do you recall how the plaintiff

13 describes her experience of tinnitus?

14 A. No, I don't. It must be in my report,

15 though.

16 Q. Okay. I am going to bring up again

17 the plaintiff's deposition, Exhibit 4.

18 So, Doctor, I'm going to again

19 show my screen here, and if you look here on

20 page 90, line 18 -- oh, sorry. It hasn't gone

21 through yet.

22 Now can you see my screen?

23 A. I can now, yes.

24 Q. Perfect. On page 90, line 18 here,

25 the question starts, "Are you experiencing
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 1 always work and sometimes they get in the way.

 2 That doesn't surprise me.

 3 Q. Did you consider the plaintiff's sleep

 4 apnea as a potential cause or contributing

 5 factor for her tinnitus?

 6 MR. BAUER: Objection, form.

 7 A. Sleep apnea does not cause tinnitus.

 8 Tinnitus can cause sleep difficulties, and

 9 certainly if she has some other disorder in

10 addition to her tinnitus, that's going to make

11 it more difficult for her to deal with things

12 like sleep apnea caused by some other reason.

13 Q. Does the plaintiff complain in this

14 case that her tinnitus prevents her from

15 falling asleep?

16 A. I'd have to go back and look at my

17 records on that.

18 Q. Let me pull that up for you here.

19 Going back to the deposition, and if you go

20 down on page 101 here, it says, "Has it, the

21 tinnitus ever prevented you from falling

22 asleep?" Answer, "No."

23 A. Okay. Yeah, okay. Well, that's

24 consistent with her notion that it's

25 intermittent.
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 1 Q. Okay. And then the plaintiff was also

 2 involved in a car accident, I believe, in

 3 around 2017. Do you recall that?

 4 A. I do, yes.

 5 Q. Are you aware of whether the air bag

 6 went off in that collision?

 7 A. I forget at this point.

 8 Q. If an air bag were to deploy in a car,

 9 could that cause hearing damage, including

10 tinnitus?

11 MR. BAUER: Objection, form.

12 A. Yes, it can, if it creates an

13 impulsive noise.

14 Q. Let's turn for a minute to

15 hyperacusis. What's your definition of

16 hyperacusis?

17 A. Well, I've written a review article on

18 this many years ago and so, generally speaking,

19 I can just say that hyperacusis is when

20 moderately intense sounds are very, very loud,

21 perceived as very loud.

22 Q. And is that definition generally

23 accepted within the medical community?

24 A. I think it is in the audiological

25 community, yes.
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 1 Q. Okay. What is the relationship

 2 between hyperacusis and noise exposure?

 3 A. Well, certainly noise exposure can

 4 cause hyperacusis. It's not as straightforward

 5 as tinnitus is. Again, the most common cause

 6 of tinnitus is noise exposure, but the surveys

 7 and data are not as clear. There's many

 8 unknown causes of hyperacusis.

 9 Q. Has the plaintiff ever been diagnosed

10 with hyperacusis by one of her treating

11 physicians or audiologists?

12 A. I don't think that's the case. A lot

13 of people in health care don't really know very

14 much about hyperacusis at all.

15 Q. Okay. So in this case have you

16 diagnosed the plaintiff with hyperacusis?

17 MR. BAUER: Objection, form.

18 A. Well, from the context of my

19 discussions remotely and looking at her records

20 and knowing that, you know, she was exposed to

21 intense noise, I guess that it's my opinion

22 that she has hyperacusis.

23 It's not as straightforward as

24 it would be for a patient I saw, you know, over

25 time, went through things in more detail, but
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 1 the reports that I heard from her --

 2 Q. And --

 3 A. -- were consistent with hyperacusis.

 4 Q. I apologize. I didn't mean to

 5 interrupt you there.

 6 What type of hyperacusis have

 7 you diagnosed the plaintiff with, cochlear or

 8 vestibular?

 9 MR. BAUER: Objection, form.

10 A. So the different types of hyperacusis

11 that I've suggested with my colleagues in this

12 literature have to do primarily, I guess, with

13 loudness, annoyance, fear, and pain

14 hyperacusis.

15 And I didn't go into any great

16 detail with her hyperacusis, but I could say

17 that my perspective is that she has loudness

18 hyperacusis.

19 Q. Are you aware of whether there is an

20 ICD-10 code for hyperacusis?

21 A. I am not aware, actually.

22 Q. Okay. Are you aware of whether

23 hyperacusis is associated with migraines?

24 A. Well, I'm sure it can be. As I said,

25 it can be caused by many different things.
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 1 It's a lot more complicated than tinnitus is,

 2 so I'm sure if you have some head injury, for

 3 example, that that might cause migraines and

 4 hyperacusis.

 5 Q. Okay. And have you eliminated

 6 migraines as a cause of the plaintiff's

 7 hyperacusis?

 8 A. Well, again, I don't think migraines

 9 cause hyperacusis, migraines don't cause

10 tinnitus. I think that you might have some

11 trauma in your life and that could be, as I

12 said, a head injury that might cause migraines

13 and also cause hyperacusis at the same time.

14 Q. Okay. And is there an association

15 between hyperacusis and TMJ dysfunction?

16 A. Not clear that I can say that's the

17 case. As I said, we talked about this for

18 tinnitus, that there's a lot of patients that

19 can modify their tinnitus by moving their jaw

20 around.

21 I think that, you know,

22 hyperacusis is a lot more complicated and

23 people have a lot more diverse complaints and

24 interactions with other things. I guess it

25 wouldn't surprise me if somebody -- if there
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 1 hyperacusis?

 2 A. Well, maybe I should have been clearer

 3 that, you know, I think those other conditions

 4 you just mentioned, as we've discussed, do not

 5 cause tinnitus or hyperacusis, but it certainly

 6 is true that if she had those before she had

 7 her tinnitus and hyperacusis, then getting

 8 tinnitus and hyperacusis would make it more

 9 problematic for her to deal with her tinnitus

10 and hyperacusis if she was already stressed out

11 or had trouble sleeping because of those other

12 conditions.

13 Q. Okay. And, Doctor Tyler, up above in

14 this paragraph here, it states that you

15 considered a variety of potential causes and

16 some of those you go into below at additional

17 length; correct?

18 A. Correct.

19 Q. One of the ones that you didn't go

20 into at additional length includes hearing

21 protection device use.

22 And given that we've discussed

23 today that -- and I don't want to -- so please

24 correct me. I don't want to mischaracterize

25 your testimony, so correct me if I do -- that
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 1 we don't know the amount of time that the

 2 plaintiff used the CAEv2 ear protection, we

 3 don't know what situations she may not have

 4 worn it, there's a number of situations at

 5 least where we know she didn't wear it, and

 6 then there are other unknown hearing protection

 7 devices that were used, is that a -- before I

 8 ask the question, is that a fair summary of the

 9 testimony?

10 A. That certainly is a complicating

11 factor in this case, in this particular case,

12 yes.

13 Q. So given all of that, is it still your

14 opinion that the tinnitus and hyperacusis are

15 to a reasonable degree of medical certainty the

16 cause of Ms. Roper's tinnitus and hyperacusis

17 even given all that uncertainty regarding the

18 use of hearing protection?

19 A. Well, there's certainly some

20 uncertainty here, but as my understanding is, I

21 was only asked to judge 51 percent of the time.

22 And, as I said, although she

23 was exposed to the amount of noise and when she

24 was using earplugs in general was unclear in

25 this case, the other earplugs when she was
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 1 using them certainly has not been shown to be

 2 defective and I think that, you know, just

 3 generally speaking for all of us when there is

 4 some clear upcoming event that we know we're

 5 going to be potentially exposed to loud noise

 6 that we would be wearing hearing protection.

 7 And if she was wearing the

 8 3M earplugs in general, that could be real

 9 trouble. If she was wearing some other

10 earplugs when that happened, that would not be

11 so dangerous.

12 Q. Can you state with certainty that when

13 Ms. Roper knew that there was an upcoming event

14 where she would be exposed to loud noise that

15 she did in all circumstances wear hearing

16 protection?

17 A. No. I'm pretty sure she did not in

18 all circumstances, but I tried to make a

19 general comment.

20 MR. OLSON: I will pass the

21 witness over to you, Josh.

22 MR. BAUER: I have a few

23 questions. Can you stop sharing your screen,

24 please?

25 MR. OLSON: I absolutely can.
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 1 C E R T I F I C A T E

 2

 3 I, the undersigned, shorthand reporter,

 a Notary Public, do hereby certify that I acted

 4 as the shorthand reporter in the foregoing matter

 at the time and place indicated herein; that I

 5 took in shorthand the proceedings had at said

 time and place; that said shorthand notes were

 6 reduced to print under my supervision and

 direction by means of computer-aided transcription,

 7 and that the foregoing pages are a full and

 correct transcript of the shorthand notes so

 8 taken; that said deposition was submitted to

 the witness for signature, if requested to do

 9 so by a party or the witness; that any changes

 if any, requested by the witness are attached

10 hereto.

11

 I further certify that I am neither

12 attorney nor counsel for, or related to or

 employed by any of the parties in the foregoing

13 matter, and further that I am not a relative or

 employee of any attorney or counsel employed by

14 the parties hereto, or financially interested

 in the action.

15

16

17

18

 ____________________________

19 NOTARY PUBLIC

20

21

22

23

24

25