EXHIBIT

B

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 1 of 26
CREDIBILITY

Is The Testimony of Mr. Baker 

And His Witnesses Credible?

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 2 of 26
Hired

August

2020

Richard McKinley

Mr. Baker’s Expert

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 3 of 26
Expert Report

October

2020

“defective

Hired

August

2020

Richard McKinley

Mr. Baker’s Expert

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 4 of 26
Expert Report

October

2020 Hired

August

2020

“defective

Richard McKinley

Mr. Baker’s Expert

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 5 of 26
Hired

August

2020

Expert Report

October

2020 

“defective

r

0 

$400 / hour 

Richard McKinley

Mr. Baker’s Expert

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 6 of 26
Hired

August

2020

Expert Report

October

2020 

“defective

r

0 

NO TEST

$400 / hour 

Richard McKinley

Mr. Baker’s Expert

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 7 of 26
Hired

August

2020

Expert Report

October

2020 

“defective

NO TEST

$400 / hour 

Richard McKinley

Mr. Baker’s Expert

OCT

2008

Hired

August

2020

Expert Report

October

2020 

“defective

r

0 

NO TEST

$400 / hour 

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 8 of 26
“The Combat Arms Earplug (CA

for continuous noise protection

attenuation and is readily disti

CAEP yellow (intended for impu

setting.”“The CAEP seems to work as a

there are significant differencecontinuous and impulse settin

October 2008

66 to 75 percent able t

through visual ins

Richard McKinley

Mr. Baker’s Expert

D-Gen-628

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 9 of 26
Hired

August

2020

Expert Report

October

2020 

“defective

NO TEST

$400 / hour 

Richard McKinley

Mr. Baker’s Expert

OCT

2008

Hired

August

2020

Expert Report

October

2020 

“defective

r

0 

NO TEST

$400 / hour 

OCT

2014

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 10 of 26
Q. This was not about fit testing or 

REAT testing?

A. Correct. 

Q. So if we turn to the ne

“Assessment Methodattenuation done undANSI S12.6-2007.” Co

A. Correct.

DIRECT CROS

P-Gen-5843 

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 11 of 26
“Level dependent heaa unique advantage osituational awareness protect users from the of both continuous an

October 

2014

The Combat Arms Green end is actually g

highest or equal to attenuation at every sing

Richard McKinley

Mr. Baker’s Expert

P-Gen-5843

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 12 of 26
You don't have any idea what happens if you folding these flanges back, back and forth, yevery time you put them in and out. I mean, going to break after a while and that may cranother seal problem.

Dr. Lustig Made Assertions About The Flange Fo

Dr. Lawrence Lustig

Mr. Baker’s Expert

P-Gen-107 P-Gen-2066

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 13 of 26
But Dr. Lustig Misrepresents His Evidence

P-G

e

n-1

0

7

P-G

e

n-2

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 14 of 26
Baker’s Sworn Statement (5/15/20)Baker’s Sworn Statement (6/3/20)Baker’s Sworn Statement (7/20/20)Baker’s Sworn Deposition (7/21/20)Dr. Packer’s Report (10/9/20)

No Combat Arms Version 2 

Earplugs were purchased for basic 

training at Fort Benning between 

2004 and 2006

Dec. 14, 2020 

“I got my first pair of Combat 

Arms Earplugs Version 2 in basic 

training at Fort Benning.”

Lt. Col. Kevin Hannah

Hearing Conservation Program 

Manager at Fort Benning

“Not fwhen” 

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 15 of 26
 Mr. Baker flies from Laramie, WY to St. Louis, MO 

Packer

 Dr. Packer takes handwritten notes in meeting wi

Baker

 He knew this meeting was important  He knew it would form the basis of his opinion He knew he would have to share these notes

Dr. Packer

Mr. Baker’s Expert

“Well, I didn't say I destroyed them. I threw them away.”

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 16 of 26
Q. Sitting here today, you still don’t have any k

one way or the other whether the Combat A

2 earplug is defective; is that correct?

A. That is correct, I do not have any knowledge Reviewed no studies Reviewed no testing reports Reviewed no 3M documents Never even asked for them Got an all-expenses paid trip

Mr. Brock

Plaintiff’s Witness

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 17 of 26
What The Plaintiff Showed You The Full 

P-Gen-00080 D-Gen-

Admiral Leslie

Mr. Baker’s Expert

P-Gen-0080 D-Gen-1

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 18 of 26
CONSISTENCY

Were Mr. Baker and His Witness

Consistent In Their Testimony

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 19 of 26
In deciding whether you believe or do not bany witness, I suggest that you ask yourself questions:Did the witness’s testimony differ from othetestimony or other evidence?

Jury Instruction

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 20 of 26
Mr. McKinley 

Q. Are you aware of anybody in the world 

that has ever done an EPA labeling test 

on the Combat Arms Version 2 other than the company that sold it? 

A. So, the -- there was an EPA labeling 

test that was done by Paul Michael and then later Kevin Michael's laboratory. They have an independent laboratory very near Penn State. 

***

Q. We’ll come back to that. The NRR is 

DIRECT CRO

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 21 of 26
Dr. Lustig

Plaintiff’s Expert

Mr. Baker’s Experts Disagree About Personal-Attenu

Dr. Pack

Plaintiff’s E

Q. You did not do a pe

rating test for Mr. B

A. That is correct, I di

that, based on the tvariability shown wpersonal attenuatmean a whole lot.

Q. And that personal attenuation rating 

would be able to tell you the level of attenuation a specific individual person was obtaining from a hearing protection device, right?

A. That's correct.

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 22 of 26
No one with the mto wear the yellow Combat Arms in th

I was told to wear the yellow end of the Combat Arms in the Stryker.

Lloyd Baker 

No to wCom

DIRECT CRO

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 23 of 26
Q. What does “ruled 

out” mean?

A. Ruled out means 

excluded from possibility. 

“Rulinout dothat is the tab

Dr. Packer 

DIRECT CRO

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 24 of 26
Q. Do the safety concerns and 

other issues that you've seen in documents, sir, raise real concern in your mind about the product that you were distributing?

A. Yes. 

Mr. Brock 

Q. You still don't h

knowledge one other whether Arms Version 2 defective; is th

A. That is correct, 

any knowledge

DIRECT CRO

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 25 of 26
“80 percent of 

those items were 

defective.”

Adm. Leslie

“I don’t know wdefect was.”“I don't think thget into that levtechnical experbecause I don't 

DIRECT CRO

Case 7:20-cv-00039-MCR-GRJ Document 189-2 Filed 07/07/21 Page 26 of 26