EXHIBIT 1

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 1 of 25
* 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.

Preserved Objections Previous Rulings New Objections Rulings

11:09 - 13:08 Davis, James (2021-01-28) 3:36

11:09 Q. And what is your name? Re: [11:09 to 13:08] OVERRULED (11:09-19)

11:10 A. My name is James Davis. I'm an Pltf Obj 401, 403

11:11 audiologist, and I'm employed by the United

11:12 States Navy.

11:13 Q. Okay. Sir, I believe for a while, were

11:14 you in the Army?

11:15 A. I was in the Army from May 30th, 2008

11:16 until May 31st, 2011.

11:17 Q. Okay. So May of '08 to when did you say

11:18 again?

11:19 A. May 31st, 2011. Three years.

11:20 Q. Okay. And then how did you switch from

11:21 the Army to the Navy?

11:22 A. Well, I had been an active duty

11:23 audiologist for the Navy from 1998 until 2005.

11:24 In 2005, I separated and was employed as a

11:25 federal civilian employee by the Navy in Pearl

12:01 Harbor, Hawaii. Not to get into the whole

12:02 background of the whys and hows, but I was

12:03 wanting to return to active duty, but because I

12:04 was in the Navy Individual Ready Reserve, there

12:05 was no way for me to be recalled into the Navy

12:06 due to there not being a recall call in the Navy.

12:07 So over a few years, just inquiring with

12:08 different branches, the Army who was in great

12:09 need of audiologists at the time because of the

12:10 high number of soldiers deploying, asked me if I

12:11 was interested in joining -- in switching from

12:12 the Navy IRR into the Army Reserve. So I

12:13 thought, well, that might be a way to get a paid

12:14 Reserve drilling billet, and then that kind of

12:15 evolved into, would you be willing to come on

12:16 active duty? I mulled that for a while, said,

12:17 well, I'll give it a shot. If I don't like it,

12:18 I'll complete any three-year obligation and

12:19 leave.

12:20 So I was given orders toward the end of

12:21 May 2008, sworn in, I think, that same week,

12:22 bought my uniforms, got on a plane and reported

12:23 to Fort Benning on the 30th of May of that same

12:24 year.

12:25 Q. Okay. Let me ask you this: So you're

13:01 currently serving as an officer in the United

13:02 States Navy.

13:03 A. I am not. I have not been active -- I

13:04 have not been active duty since I left the Army

13:05 in 2011.

13:06 Q. 2011. What are you doing now, sir?

13:07 A. I'm a civil servant for the Navy. I'm

Designations

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13:08 an audiologist, but I'm a federal civilian.

13:13 - 13:17 Davis, James (2021-01-28) 0:11

13:13 Q. Okay. So as -- so since you're a Re: [13:13 to 13:17]

13:14 civil -- you're a civil servant, you work for the Pltf Obj 401, 403

13:15 federal government, but in relation to the United

13:16 States Navy.

13:17 A. Correct.

15:03 - 15:09 Davis, James (2021-01-28) 1:33

15:03 Q. I have a letter -- I have a letter dated Re: [15:03 to 15:09]

15:04 January 21 of 2021 signed by Major Robert E.L. Pltf Obj 401, 403

15:05 Wald, who is on this call.

15:06 Do you have a copy of that letter in

15:07 front of you?

15:08 A. I did not -- I don't think I printed out

15:09 the e-mail. The letter was sent in an e-mail.

17:20 - 18:18 Davis, James (2021-01-28) 1:16

17:20 Okay. Let me ask you a couple of Re: [17:20 to 18:18]

17:21 questions. If we look through this, it says you Pltf Obj 401, 403

17:22 were testifying about knowledge between May of

17:23 2008 and August of 2008; is that correct? That's

17:24 what you're going to talk about here today?

17:25 A. Yes, sir.

18:01 Q. Okay. And all of your testimony today

18:02 is going to be limited to what you know for the

18:03 period May 2008 through August 2008, correct?

18:04 A. Yes, sir.

18:05 Q. So if you answer any questions here

18:06 today about -- about that somebody could argue

18:07 that it pertains to September of 2008, that would

18:08 be inapplicable because you're only talking about

18:09 May to August of 2008, correct?

18:10 A. Yes, sir.

18:11 Q. Okay. One of the things, if we can look

18:12 at the very bottom of this page, it says,

18:13 "Dr. Davis has no personal knowledge of Plaintiff

18:14 McCombs' noise exposures."

18:15 Is that a true statement?

18:16 A. Yes, sir.

18:17 Q. Do you know who Dustin McCombs is?

18:18 A. I don't.

20:04 - 21:25 Davis, James (2021-01-28) 3:41

20:04 While you were at Fort Benning from May Re: [20:04 to 21:25]

20:05 2008 to August 2008, did you ever collect, Pltf Obj 401, 403

20:06 analyze or evaluate any noise exposure data?

20:07 A. I did not.

20:08 Q. Okay. While you were at Fort Benning,

20:09 what did you do?

20:10 A. Well, as I mentioned earlier, I didn't

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20:11 report to Fort Benning until the 30th of May.

20:12 First several weeks were spent in-processing,

20:13 getting pay records squared away, getting my

20:14 credentials and privileges at the hospital in

20:15 order so I would be allowed to see patients.

20:16 Shortly after that, I was sent on a

20:17 mission to Camp Shelby, Mississippi for several

20:18 weeks to evaluate National Guard soldiers.

20:19 And then not -- I don't remember the

20:20 exact dates, but not long after I returned from

20:21 that mission, I was assigned as an Article 32

20:22 officer and pulled from my normal duties as an

20:23 audiologist to spend time on an investigation.

20:24 So it was actually some time before I was

20:25 actually fully into my actual job as the program

21:01 manager.

21:02 Q. Let's break that down. When did you go

21:03 to Camp Shelby?

21:04 A. I don't remember the exact dates. I am

21:05 just kind of pulling from my memory.

21:06 Q. Would it have been during the time

21:07 period from May of 2008 to August of 2008?

21:08 A. Possibly. Possibly. I just remember it

21:09 was not long after I arrived because the Army

21:10 audiology leadership was trying to get my feet

21:11 wet because I was, you know, completely new to

21:12 their system, so they wanted to send me on

21:13 missions and have me do other things that an

21:14 officer would do. So right off the bat, I was

21:15 doing a lot of that.

21:16 I'm sorry I don't remember the dates.

21:17 It's nothing that I've written down. I haven't

21:18 really -- other than my orders and my DD 214, I

21:19 haven't really kept anything from that time.

21:20 Q. That's okay. All I'm trying to figure

21:21 out, Dr. Davis, is basically if I look at this

21:22 time period of May 2008 to August 2008, that's a

21:23 time period of roughly ballpark 120 days. It's

21:24 four months. But from what you've told me

21:25 already, it appears you weren't even there for

22:01 - 22:07 Davis, James (2021-01-28) 0:15

22:01 but for one day of May or two days of May, Re: [22:01 to 22:07]

22:02 correct? Pltf Obj 401, 403

22:03 A. Exactly.

22:04 Q. And then it seems like right after you

22:05 got there, not long after you got there, you

22:06 actually went to Camp Shelby for how long?

22:07 A. It was for two weeks.

22:08 - 23:19 Davis, James (2021-01-28) 2:53

22:08 Q. For two weeks.

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22:09 A. Well, let me backtrack. I remember I

22:10 had -- they called it -- now I'm not really up to

22:11 speed on Army terminology. I've been with the

22:12 Navy for really 22 years, so if I throw in Navy

22:13 jargon --

22:14 Q. It's okay.

22:15 A. -- excuse me.

22:16 But they sent me on what they refer to

22:17 as a reconnaissance mission first. Now I

22:18 remember. I had to -- I had to travel to Camp

22:19 Shelby, Mississippi and determine where these

22:20 hearing evaluations could take place. So I

22:21 remember doing that first.

22:22 Then some time -- I returned to Fort

22:23 Benning. And in the midst of this, I was having

22:24 to do a lot of in-process training, too, in

22:25 processing training that active duty normally

23:01 have to complete.

23:02 So I did the recon mission first,

23:03 returned to Fort Benning, and then I had to

23:04 return to Camp Shelby for two weeks with another

23:05 Army officer audiologist to complete in

23:06 processing for deploying National Guard soldiers

23:07 through there, then returned back to Fort

23:08 Benning. I don't know the exact time frame. I

23:09 just remember it wasn't long after I got back

23:10 when I got pulled by the troop commander to be

23:11 assigned as an Article 32 officer. And that

23:12 took, I think, several months, if I recall

23:13 correctly, because I had to conduct an

23:14 investigation and then there was a pre -- kind of

23:15 a pretrial prior to what a court-martial would

23:16 do. And that took up all of my time, and I

23:17 wasn't doing my normal duties during that period.

23:18 But it was roughly along those same timelines

23:19 there from what I recall.

23:20 - 24:01 Davis, James (2021-01-28) 0:22

23:20 Q. So Dr. Davis, I mean, if I'm -- if I'm Re: [23:20 to 24:01]

23:21 listening to what you're saying, from May of 2008 Pltf Obj 401, 403

23:22 to August of 2008, at Fort Benning, how much time

23:23 during that period did you actually spend being

23:24 an Army audiologist? Like how many days would

23:25 you have done that in that time period? It

24:01 sounds like not much.

24:03 - 24:05 Davis, James (2021-01-28) 0:07

24:03 THE WITNESS: I don't -- I couldn't give Re: [24:03 to 24:05]

24:04 an exact answer. I mean, I'm really just pulling Pltf Obj 401, 403

24:05 from my memory.

24:07 - 25:12 Davis, James (2021-01-28) 2:31

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24:07 Q. I guess what I'm getting at -- Re: [24:07 to 25:12]

24:08 A. It was later in the year before I was Pltf Obj 401, 403

24:09 really into my job there, to be honest.

24:10 Q. Okay. All right.

24:11 A. Because understand that I had not been

24:12 given any training prior to my orders starting on

24:13 the 30th of May. I was literally a civilian in

24:14 Hawaii. I had to ask someone what uniforms do I

24:15 need, and I went to the Army base at Schofield

24:16 Barracks, got two sets of ACUs, the boots, socks,

24:17 asked someone to teach me how to wear it,

24:18 literally got on the plane, flew to my home, to

24:19 my parents in Mobile, Alabama for just a couple

24:20 of days and then traveled to Fort Benning,

24:21 checked in, and I knew nothing about the Army.

24:22 I'll be honest with you.

24:23 Q. Okay. Fair enough. I guess what I'm

24:24 trying to get at, though, is we're limited on the

24:25 scope that we have here, the time period. We've

25:01 already established you missed most of May, and

25:02 then it seems the rest of the time period that we

25:03 were here, you were at least involved in being at

25:04 Camp Shelby for a few weeks and then working as

25:05 an officer on an Article 32 case, true?

25:06 A. Yes, sir.

25:07 Q. Okay. So it doesn't appear that from

25:08 the limited time frame that we have, you were

25:09 actually working as an audiologist much of

25:10 anything at all. True?

25:11 A. Well, right. Not -- not at Fort

25:12 Benning. I was doing it at Camp Shelby.

26:15 - 29:07 Davis, James (2021-01-28) 4:06

26:15 So the first thing I want to ask you is Re: [26:15 to 29:07]

26:16 can you tell me about your educational Pltf Obj 401, 403

26:17 background?

26:18 A. Okay. I completed my bachelor of

26:19 science in speech and hearing sciences at the

26:20 University of South Alabama in Mobile, which I

26:21 completed that June of 1993. And then, I

26:22 completed my master's of science in audiology at

26:23 the University of Southern Mississippi in

26:24 December of 1994. I finished a clinical

26:25 fellowship here after that point and worked

27:01 partly in an ENT setting, an otolaryngology

27:02 setting. And then for a year or so, I was a

27:03 contract employee for the VA in Biloxi,

27:04 Mississippi, performing compensation and pension

27:05 examinations until I gained a commission in the

27:06 United States Navy in late 1997. Completed Navy

27:07 officer indoctrination school in New Port, Rhode

27:08 Island in the winter of 1998, and then continued

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27:09 on to my first command at Naval Medical Center

27:10 Port Smith for one year.

27:11 In 1999, I PCS'd, that's a permanent

27:12 change of duty to Yokosuka, Japan, Naval Hospital

27:13 Yokosuka, in 1999. For two years, I was the

27:14 department head of occupational audiology. And

27:15 for the last year there, I moved from that role

27:16 to working for the Department of Defense schools

27:17 as an educational audiologist.

27:18 Then in 2002, I PCS'd to Naval Medical

27:19 Center San Diego, and was the department head of

27:20 occupational audiology there for about I think it

27:21 was seven months. There was a hot fill billet,

27:22 meaning there was a need for someone to fill a

27:23 billet in Okinawa, Japan. So in 2003 -- February

27:24 2003, I PCS'd to Okinawa, Japan and was the

27:25 educational audiologist, which means it wasn't a

28:01 hearing conservation billet. I was -- I was

28:02 seeing school-aged children and developmentally

28:03 delayed children for two years there.

28:04 And then the Navy Medical Service Corps

28:05 was going through this flux at the time, and the

28:06 Navy audiology billets were actually going to go

28:07 away. So I made the decision to separate from

28:08 active duty in February of 2005. At that point,

28:09 I worked for -- it was less than a year, I

28:10 actually traveled to New Zealand and worked as a

28:11 audiologist in Auckland, New Zealand for a short

28:12 time until I found employment with the Navy at

28:13 Pearl Harbor in November 2005 and worked there

28:14 until I left in May 2008 for my duty station at

28:15 Fort Benning, Georgia.

28:16 Q. Okay.

28:17 A. And then from there, I left in 2011,

28:18 hired as a federal civilian with the Navy again

28:19 in Norfolk, Virginia, and have been with the Navy

28:20 since that time.

28:21 Q. Okay. The --

28:22 A. Oh, and I completed my doctor of

28:23 audiology degree in 2010. Left that part out.

28:24 Q. Where was that at? What school?

28:25 A. That's AT Still University. The

29:01 Department of Defense set up a number of programs

29:02 to allow active duty and DoD-employed

29:03 audiologists to complete a professional doctorate

29:04 through distance learning. It became a

29:05 requirement to have that degree, so they arranged

29:06 so that we were able to work yet still earn the

29:07 degree to maintain our licensure and credentials.

29:12 - 30:23 Davis, James (2021-01-28) 2:07

29:12 All right. Let's go through some of Re: [29:12 to 30:23]

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29:13 these -- some of these questions that we've got Pltf Obj 401, 403

29:14 here. So from -- from May of 2008 -- should we

29:15 even say May of 2008 or should we say June of

29:16 2008?

29:17 A. I wasn't working at all in May. I was

29:18 just in an office, filling out paperwork.

29:19 Q. Okay. So let's talk about June 2008 to

29:20 August of 2008. During that time period, you --

29:21 I think you used the phrase you were getting your

29:22 feet wet. Is that right?

29:23 A. Yeah.

29:24 Q. Okay. You didn't know much about what

29:25 was going on with Army audiology. Is that a fair

30:01 statement?

30:02 A. I think that is a very fair statement.

30:03 Q. Okay. And about how long -- how many

30:04 months did it take for you to kind of get your

30:05 feet under you in Army audiology?

30:06 A. Well, let me think. I mean, I was fully

30:07 immersed in the job by the end of the year,

30:08 certainly. Very, very busy time with the Army

30:09 because of the -- you know, the conflicts going

30:10 on in the Middle East and many soldiers deploying

30:11 from the Reserves, active duty, the National

30:12 Guard and many being pulled from retirement. So

30:13 I was in the clinic the majority of the time,

30:14 evaluating soldiers that were not passing

30:15 surveillence audiograms, so that I could

30:16 determine if they were clear to deploy or not.

30:17 Q. Okay.

30:18 A. And also managing the rest of the

30:19 department, which was one active duty audiologist

30:20 and several civilian technicians that were

30:21 employed to perform the surveillence audiograms,

30:22 fit hearing protection, hearing conservation

30:23 training.

31:18 - 33:02 Davis, James (2021-01-28) 2:52

31:18 Q. Let's look at lowercase C. Re: [31:18 to 33:02] OVERRULED (31:18-32:24)

31:19 "Any fittings or trainings overseen, Pltf Obj 401, 403

31:20 managed or provided directly or indirectly by

31:21 Dr. Davis related to the CAEv2 and other hearing

31:22 protection devices provided between May 2008 and

31:23 August 2008."

31:24 Do you see that?

31:25 A. I see that. And I recall that when I --

32:01 when I got to Fort Benning, they -- that the

32:02 occupational audiology department was stocking

32:03 and issuing later versions of the CAEs. Those

32:04 were the CAEs that were single-ended earplug with

32:05 basically a toggle switch on the end that allowed

32:06 you to switch between filtered and unfiltered

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32:07 settings and came sized.

32:08 Q. Okay.

32:09 A. I don't recall us, per se, issuing any

32:10 of the version twos. Now that doesn't mean no

32:11 one on the base had them because hearing

32:12 protection devices come from many different

32:13 places, namely, from their individual safety

32:14 units and safety officers. We had, you know,

32:15 soldiers PCS'ing into Fort Benning who had

32:16 already been fit with hearing protection. They

32:17 may have been fit with them there and so forth.

32:18 But specifically from our department, I

32:19 distinctly remember the newer version because I

32:20 was happy to see that because they're sized and

32:21 you can get a better -- a better fit --

32:22 Q. Okay.

32:23 A. -- with sized earplugs versus a

32:24 universal fitting earplug in general.

32:25 Q. Okay. Between May and August of 2008,

33:01 you were aware of the CAEv2 being present at Fort

33:02 Benning, though, correct?

33:04 - 33:06 Davis, James (2021-01-28) 0:04

33:04 THE WITNESS: I couldn't really say when Re: [33:04 to 33:06]

33:05 I first saw anyone wearing them, to be honest, Pltf Obj 401, 403

33:06 because I don't remember.

33:08 - 34:25 Davis, James (2021-01-28) 3:48

33:08 Q. Okay. All right. Did you do any Re: [33:08 to 34:25]

33:09 training with -- related to these Combat Arms Pltf Obj 401, 403

33:10 Version 2 between May of 2008 and August of 2008?

33:11 A. Not that I recall, no.

33:12 Q. Okay. Did you do any fittings of the

33:13 Combat Arms Version 2 between May of 2008 and

33:14 August of 2008 at Fort Benning?

33:15 A. I don't recall. I don't recall doing

33:16 that. And in that time span, I'm not really sure

33:17 if I did any earplug fittings, to be honest,

33:18 because of all of the other activities I was

33:19 doing. I mean, I can't say 100 percent sure that

33:20 I did not fit any earplugs, but I don't recall

33:21 fitting any of the double-ended Version 2s.

33:22 Q. Okay. Lowercase letter D: "Dr. Davis'

33:23 practices and procedures pertaining to auditory

33:24 testing or hearing conservation, including the

33:25 fit and use of earplugs from May 2008 to August

34:01 of 2008."

34:02 What were your practices and procedures

34:03 pertaining to auditory testing or hearing

34:04 conservation for that time period?

34:05 A. Well, the technicians were providing

34:06 surveillence pure-tone audiograms. Of course, as

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34:07 the audiologist, for anyone failing a

34:08 surveillence hearing test would be referred to me

34:09 or one of the other audiologists to perform

34:10 diagnostic assessment, which would include

34:11 pure-tone audiology, bone conduction audiology,

34:12 if indicated, middle ear analysis using

34:13 tympanometry, acoustic reflex testing,

34:14 potentially use of otoacoustic emissions, if we

34:15 needed more data to determine if the noise

34:16 exposure was at play, auditory brain stem

34:17 response testing for unilateral or asymmetrical

34:18 hearing losses to rule out retrocochlear lesions,

34:19 counseling, fitting of hearing protection on

34:20 those whose hearing was showing shifts that were

34:21 determined to -- to probably be due to noise

34:22 exposure.

34:23 Q. Okay. And then it's lowercase E:

34:24 "Dr. Davis' knowledge and understanding regarding

34:25 the requirement of and implementation of the

35:01 - 36:08 Davis, James (2021-01-28) 2:41

35:01 military's Hearing Conservation Program from May Re: [35:01 to 36:08]

35:02 2008 and August of 2008." Pltf Obj 401, 403

35:03 So what's your knowledge and

35:04 understanding of the requirements and

35:05 implementation of the Army's Hearing Conservation

35:06 Program from that time period?

35:07 A. Well, are you specifically referring to

35:08 the Army? Because E states, "military's Hearing

35:09 Conservation Program," and that's a pretty broad

35:10 area there.

35:11 Q. Yeah. I want to limit mine to the Army

35:12 because this -- during this time period, you were

35:13 only working on an -- with the Army, correct?

35:14 A. Yes.

35:15 Q. Okay. So let's limit it to the Army.

35:16 What was your knowledge of the hearing -- the

35:17 Army's Hearing Conservation Program from May of

35:18 '08 to August of '08?

35:19 A. Somewhat limited because although any

35:20 branch that we're working for, we do have to be

35:21 aware of the other branches' instructions and

35:22 regulations. With the Army, up to that point,

35:23 that was something that if I had a soldier

35:24 evaluating that it wasn't fit -- audiometrically

35:25 fit for duty, I would refer to the instructions.

36:01 So I knew about the Army profile system and how

36:02 fitness for duty examinations were performed, but

36:03 that was about the scope of it. I didn't have

36:04 any knowledge of their styles of management,

36:05 regulations for management and so forth. That

36:06 was something I basically had to get OJT on.

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36:07 Q. What's OJT?

36:08 A. On-the-job training.

36:13 - 36:19 Davis, James (2021-01-28) 0:23

36:13 Q. Okay. Let me ask you this, Dr. Davis: Re: [36:13 to 36:19] OVERRULED

36:14 In the military, during this time period, Pltf Obj 401, 403

36:15 would -- would y'all check the hearing of

36:16 soldiers?

36:17 A. Are you asking if we did hearing tests?

36:18 Q. Yes.

36:19 A. Oh, of course.

36:24 - 37:06 Davis, James (2021-01-28) 0:22

36:24 I mean, the technician performed the Re: [36:24 to 37:06] OVERRULED

36:25 routine surveillence hearing tests. Pltf Obj 401, 403

37:01 Q. Okay. Would y'all -- during this time

37:02 period, were y'all fitting soldiers with

37:03 earplugs?

37:04 A. Yes.

37:05 Q. Were you giving them instructions on how

37:06 to properly insert the earplugs?

37:08 - 37:08 Davis, James (2021-01-28) 0:00

37:08 THE WITNESS: Yes. Re: [37:08 to 37:08] OVERRULED

Pltf Obj 401, 403

37:13 - 37:14 Davis, James (2021-01-28) 0:07

37:13 THE WITNESS: I mean, I can specify what Re: [37:13 to 37:14] OVERRULED

37:14 was being issued to the Eleven Bravo recruits. Pltf Obj 401, 403

37:16 - 39:08 Davis, James (2021-01-28) 3:30

37:16 Q. Okay. What was that? Re: [37:16 to 39:08] OVERRULED

37:17 A. Those were the Elvex Quattros, those are Pltf Obj 401, 403

37:18 the quad-flanged earplugs. And that -- when I

37:19 got to Fort Benning, part of their in-processing

37:20 was -- was training on many different topics.

37:21 Part of that was an hourly hearing conservation

37:22 training and fit with the Elvex Quattros.

37:23 Q. Okay. Do you fit an Elvex -- how do you

37:24 fit an Elvex Quattro?

37:25 A. You -- first, you have to determine if

38:01 the earplug is actually going to adequately fit

38:02 in the specific ear canal because you do have to

38:03 look at each ear separately because no one is

38:04 symmetrical, of course. Determine if it's going

38:05 to fit, perform an otoscopic screening, that is,

38:06 you look into the ear canal with an otoscope,

38:07 which is essentially a microscopic flashlight

38:08 that's used in medicine. Examining ear canal,

38:09 you're looking for any signs of pathology,

38:10 occluded canal due to impacted ear wax, any

38:11 foreign objects.

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38:12 Fit the earplug, instruct the soldier on

38:13 how to properly expand the ear canal for easy

38:14 insertion, instruct how to insert, what they will

38:15 be checking for to determine that they have an

38:16 adequate seal because you do have to completely

38:17 seal the passage of air into the ear canal in

38:18 order to block sound or noise. The techniques

38:19 for doing that, which are speaking out loud,

38:20 listening for the occlusion effect, does sound

38:21 appear to be muffled in the ear with the earplug?

38:22 We discussed reinserting the earplug.

38:23 If the earplug is worn for extended period of

38:24 time, then chewing and talking can actually cause

38:25 any earplug to work loose. So if a worker or a

39:01 soldier is wearing earplugs for extended periods

39:02 of time, say during an entire eight-hour day,

39:03 you're going to have to remove and reinsert to

39:04 ensure that you're still maintaining that seal.

39:05 How to clean the earplugs and how to care for the

39:06 earplug.

39:07 Q. Okay. So y'all do tell the soldiers

39:08 about reinsertion after a period of time?

39:10 - 39:12 Davis, James (2021-01-28) 0:11

39:10 THE WITNESS: Yes. It's important to Re: [39:10 to 39:12] OVERRULED

39:11 know that because without that air seal, then you Pltf Obj 401, 403

39:12 don't have any protection at all.

39:14 - 40:06 Davis, James (2021-01-28) 1:53

39:14 Q. Okay. And to insert the quad flange Re: [39:14 to 40:06] OVERRULED

39:15 that you were talking about, is that one where Pltf Obj 401, 403

39:16 you basically pull back the pinna to kind of

39:17 straighten the ear canal and then you stick the

39:18 earplug into the ear?

39:19 A. Well, with any of these preformed

39:20 earplugs, including a CAE, you generally push and

39:21 gently twist to get a good seal.

39:22 Q. Okay.

39:23 A. Just simply pushing doesn't necessarily

39:24 do a good job because some people have very curvy

39:25 ear canals.

40:01 Q. Okay. All right. Fair enough. But

40:02 y'all go through that. When you were there at

40:03 Fort Benning, you go through, put it in, twist

40:04 it, make sure you get a good seal, recheck it

40:05 after a while and reinsert it if it's worked

40:06 loose; you do all that stuff, right?

40:15 - 40:15 Davis, James (2021-01-28) 0:01

40:15 Q. That's what y'all do, isn't it, sir? Re: [40:15 to 40:15] SUSTAINED

Pltf Obj 401, 403

Page 11 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 12 of 25
40:21 - 41:11 Davis, James (2021-01-28) 1:55

40:21 A. Right. I mean, if we're just talking Re: [40:21 to 41:11] SUSTAINED

40:22 generically about earplugs, yes. Pltf Obj 401, 403

40:23 Q. Okay.

40:24 A. Because a -- preformed earplugs are all

40:25 very similar. You know, they all have their --

41:01 their advantages and disadvantage, what will work

41:02 with one person may not work for another person.

41:03 You know, professional judgment has to be used

41:04 there.

41:05 Q. Okay. Do you recall from May of 2008 to

41:06 August of 2008 ever fitting anyone at Fort

41:07 Benning with the Combat Arms Version 2 or do you

41:08 even know or do you even recall?

41:09 A. Well, as I've already stated, I remember

41:10 the later versions of the Combat Arms that were

41:11 sized.

41:13 - 42:07 Davis, James (2021-01-28) 1:03

41:13 A. And to be honest, I don't remember Re: [41:13 to 42:07] SUSTAINED (41:13-14)

41:14 exactly when I personally fitted those. Pltf Obj 401, 403

41:15 Q. Okay.

41:16 A. Because I don't go straight for Combat

41:17 Arms with everyone. Combat Arms are a tricky

41:18 earplug to use because they're a dual purpose

41:19 earplug. And I have to be careful that a

41:20 worker -- I really wouldn't give them to a civil

41:21 service worker anyway. But if a soldier is

41:22 wearing only the filtered end all the time, then

41:23 that's going to put them at risk because of how

41:24 the filter works. So, you know, that's not

41:25 something I would just automatically go to anyway

42:01 unless they were deploying.

42:02 Q. Okay. Is it fair to say that during the

42:03 time period that this deposition is limited to,

42:04 that you might look at what a soldier was going

42:05 to be doing and then factor that into the type of

42:06 earplug you would give them?

42:07 A. I would, yes.

42:11 - 44:01 Davis, James (2021-01-28) 3:36

42:11 A. The hearing protection device has to fit Re: [42:11 to 44:01] SUSTAINED (42:17-44:01)

42:12 the task that it's meant for. If they're Pltf Obj 401, 403

42:13 around -- if they're going to be working around

42:14 equipment noise or engine noise all the time,

42:15 then a filtered earplug would not be appropriate

42:16 for that.

42:17 Q. Okay. One of the things during this

42:18 time period, the relevant time period for May of

42:19 2008 to August of 2008 at Fort Benning, when you

42:20 were doing your exams and interviews of soldiers,

42:21 would you ask them if they had tinnitus?

Page 12 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 13 of 25
42:22 A. That's part of the normal history-taking

42:23 question.

42:24 Q. Okay. And do y'all --

42:25 A. Ear pain, dizziness, ear drainage,

43:01 tinnitus --

43:02 Q. Okay. Do y'all --

43:03 A. -- tinnitus, yes.

43:04 Q. And do y'all -- since tinnitus is a

43:05 medical word -- and by the way, "tinnitus" means

43:06 ringing in the ears, do you have any of that? Do

43:07 y'all explain that to them?

43:08 A. Well, when they're coming in for

43:09 surveillence audiograms, those are your DD 2216s.

43:10 The technician has the soldier fill out an intake

43:11 form, and that's part of the questionnaire. One

43:12 is, do you have any ringing, buzzing, humming

43:13 type noises in the ear? It doesn't specifically

43:14 say "tinnitus" because the general population

43:15 doesn't really know what that is. So they're

43:16 asked specifically, do you have any kind of

43:17 ringing or tonal -- you know, that type of

43:18 questioning.

43:19 And if they check "yes," they're also

43:20 asked if they have a little or a lot. And

43:21 depending on what they've checked, that's notated

43:22 on their DD 2216 in the software as the hearing

43:23 test is being performed.

43:24 Q. Okay.

43:25 A. And it will actually be printed on the

44:01 DD 2216 if tinnitus was reported.

45:19 - 46:05 Davis, James (2021-01-28) 1:36

45:19 Q. Good morning, Dr. Davis. My name is Re: [45:19 to 46:05] SUSTAINED

45:20 Kari Karis. I represent the defendant in the Pltf Obj 401, 403

45:21 litigation that is pending that your deposition

45:22 has been requested in.

45:23 You and I have never spoken before

45:24 today; is that correct?

45:25 A. That's correct.

46:01 Q. Okay. And you and I have never in any

46:02 form ever discussed what your knowledge or role

46:03 was in connection with your duties as -- at Fort

46:04 Benning from May to August of 2008, correct?

46:05 A. Yes, ma'am.

46:10 - 48:02 Davis, James (2021-01-28) 2:28

46:10 At the time that you worked at Fort Re: [46:10 to 48:02] OVERRULED (46:10-47:13)

46:11 Benning from May of 2008 to August of 2008, you Pltf Obj 401, 403

46:12 testified that you were at least familiar with

46:13 the fact that different soldiers were receiving

46:14 different hearing protection devices, correct?

46:15 A. Correct.

Page 13 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 14 of 25
46:16 Q. Okay. Could you tell us, first of all,

46:17 what your familiarity was with what hearing

46:18 protection devices were available for

46:19 consideration to be issued to the soldiers during

46:20 that time at Fort Benning?

46:21 A. At that particular time, well, I was

46:22 just getting familiar, with, you know, what was

46:23 going on, on the post. Keep in mind, we're

46:24 talking about thousands of people. It's a very

46:25 large post.

47:01 The standard earplugs that I was seeing

47:02 at the time, which would be like your

47:03 triple-flange sized earplug, a lot of the Elvex

47:04 Quattros, that tends to be a very popular one, a

47:05 lot of the hand-formed earplugs, what they refer

47:06 to as the foamies. And I believe -- I know at

47:07 some point -- I can't -- I honestly don't know if

47:08 it was during that time period, but I do know

47:09 that many of the soldiers preferred wearing the

47:10 SureFire earplug that they were getting from off

47:11 base. They were -- they were authorized by the

47:12 Army for use, but they were purchasing them off

47:13 base. I distinctly recall that.

47:14 Q. When you say the "SureFire," can you

47:15 describe for us what that is?

47:16 A. It's another filtered type earplug,

47:17 but it -- it's hard for me to describe verbally.

47:18 It kind of looks like -- it almost looks like a

47:19 custom made, but it isn't. It fits into the ear

47:20 canal. It only has a couple of flanges. I think

47:21 it has two flanges into the ear canal, and then

47:22 it has a premolded piece that fits along the

47:23 helix and into the concha of the ear. So it is

47:24 very, very low profile. And they -- there are

47:25 all reports was that it was very secure. And

48:01 then in order to use the filter, you would have

48:02 to remove a plug --

48:04 - 48:18 Davis, James (2021-01-28) 1:56

48:04 A. -- to put it into the filtered mode. Re: [48:04 to 48:18] OVERRULED (48:05-48:18)

48:05 Q. So during the time that you were at Fort Pltf Obj 401, 403

48:06 Benning from May again to August of '08, did you

48:07 become aware that there were soldiers that were

48:08 using these other types of hearing protection

48:09 devices? And by "other types," I mean non Combat

48:10 Arms Earplugs Version 2.

48:11 A. Well, I know that my own department had

48:12 been fitting the sized, later-version Combat Arms

48:13 earplug, but my recollection is that they were --

48:14 had not been ordering the older version and then

48:15 the other types like the triple flange and the

48:16 Elvex Quattros. However, we're talking about a

Page 14 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 15 of 25
48:17 lot of people and a lot of different things going

48:18 on.

48:21 - 49:08 Davis, James (2021-01-28) 1:46

48:21 Q. Fair enough. Is it -- is it fair to say Re: [48:21 to 49:08] SUSTAINED

48:22 that as you understood it or based on your Pltf Obj 401, 403

48:23 knowledge and understanding of the Hearing

48:24 Conservation Program at Fort Benning from May of

48:25 '08 to August of '08, at least the folks that you

49:01 were exposed to were not ordering and using the

49:02 Combat Arms Earplugs Version 2, which is the

49:03 subject of this litigation?

49:04 A. Yeah. I mean, my knowledge during that

49:05 time period was just limited to what the staff of

49:06 my particular department were doing. I had not

49:07 had any opportunity to know what was really going

49:08 on outside of that.

49:10 - 50:05 Davis, James (2021-01-28) 1:17

49:10 A. Right. So they were not fitting the Re: [49:10 to 50:05] SUSTAINED

49:11 Version 2s from what I recall. Pltf Obj 401, 403

49:12 Q. Okay. Now you testified in response to

49:13 Mr. Monsour's question -- I believe this was a

49:14 quote from you -- that you were happy to see that

49:15 soldiers were wearing other types of devices

49:16 because they had a better fit.

49:17 A. Well, what I was referring to, what I

49:18 was happy to see is that we were -- that we had

49:19 the sized versions of the Combat Arms earplugs

49:20 because it's -- you can ensure that you're going

49:21 to get a more adequate fit with that.

49:22 Now my own -- I'm not sure if I can go

49:23 this far with it. Major Wald, stop me if I

49:24 can't.

49:25 My own viewpoint is, you fit the person

50:01 with what is going to work. And you have to, you

50:02 know, examine their -- their situation and their

50:03 ears. And if -- if a uni-sized earplug just

50:04 didn't fit well, I wouldn't go with that. I

50:05 would just move on to something else.

50:10 - 51:02 Davis, James (2021-01-28) 1:51

50:10 Q. Fair enough. Were you aware that it was Re: [50:10 to 51:02] SUSTAINED

50:11 not a situation of one size fits all, that is, Pltf Obj 401, 403

50:12 one hearing protection device works for all

50:13 soldiers?

50:14 A. Absolutely.

50:15 Q. Tell us why. Why is it that one size

50:16 doesn't fit all?

50:17 A. Well, it's just like my glasses may not

50:18 fit on your face. We're all shaped differently,

50:19 sized differently, and that includes ear canals.

Page 15 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 16 of 25
50:20 Some people have very small, narrow ear canals.

50:21 Some people have very large ear canals. Some

50:22 people have very sharp bends to the ear canal.

50:23 Some people have relatively straight ear canals.

50:24 Earplugs can be of different sizes and

50:25 consistencies and flexibility, so you have to

51:01 determine what's going to actually fit into the

51:02 ear canal and form a seal, an airtight seal.

51:09 - 52:11 Davis, James (2021-01-28) 2:44

51:09 Q. Sure. In issuing a hearing protection Re: [51:09 to 52:11] SUSTAINED (51:09-23)

51:10 device, was it important to determine which Pltf Obj 401, 403

51:11 device gives the soldier the best fit?

51:12 A. Yes. Yes.

51:13 Q. And why was it important for the soldier

51:14 to have the best fit for whatever hearing

51:15 protection device they were getting issued?

51:16 A. Well, without a proper fit, you not only

51:17 have discomfort, you have inadequate attenuation

51:18 of sound entering the ear canal, which is really

51:19 the primary goal of an effective earplug is an

51:20 attenuating. It has to be comfortable or else

51:21 they're not going to wear it. And if it isn't in

51:22 properly, then it may not stay in the ear

51:23 securely.

51:24 Q. You testified that you recall that there

51:25 was a transition away from the Combat Arms

52:01 Earplug Version 2 in favor of a different version

52:02 of a Combat Arms earplug.

52:03 Do you know why that transition took

52:04 place?

52:05 A. Well, it happened before I arrived at

52:06 Fort Benning. It was already done, you know, at

52:07 that point. That's what I walked into, in other

52:08 words, that this is what the department is

52:09 ordering and providing for issue. And understand

52:10 that we weren't the only ones fitting earplugs

52:11 either.

52:20 - 52:24 Davis, James (2021-01-28) 0:28

52:20 Q. Fair enough. Dr. Davis, did you ever Re: [52:20 to 52:24] SUSTAINED

52:21 personally fit any soldiers for the Combat Arms Pltf Obj 401, 403

52:22 Earplugs Version 2 at Fort Benning from May of

52:23 '08 to August of '08?

52:24 A. Not that I recall.

53:23 - 54:08 Davis, James (2021-01-28) 0:24

53:23 (WHEREUPON, THE DOCUMENT WAS MARKED AS Re: [53:23 to 54:08] SUSTAINED

53:24 EXHIBIT NO. 1 TO THE TESTIMONY OF THE WITNESS AND

Pltf Obj 401, 403

53:25 IS HERETO ATTACHED.)

54:01 BY MS. KARIS:

Page 16 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 17 of 25
54:02 Q. Okay. Here we go. Do you see it now,

54:03 Dr. Davis? Titled, Hearing Conservation Program,

54:04 Medical Services?

54:05 A. Yeah. It's DA Pam 40-501.

54:06 Q. Okay. And is this a document you were

54:07 familiar with?

54:08 A. 1998. I believe so.

54:21 - 57:06 Davis, James (2021-01-28) 4:30

54:21 Q. Under Characteristics -- 6-3 Re: [54:21 to 57:06] SUSTAINED

54:22 characteristics, earplugs. It says, "preformed Pltf Obj 401, 403

54:23 earplugs are triple or single-flanged earplugs.

54:24 Medically trained personnel must fit and examine

54:25 earplugs at least annually to ensure proper fit

55:01 and condition."

55:02 Was that consistent with your

55:03 understanding of the practices at Fort Benning at

55:04 the time that you were there, which is medically

55:05 trained personnel had to fit and examine annually

55:06 for proper fit and proper condition of triple and

55:07 single-flanged earplugs?

55:08 A. Correct. So the medically trained

55:09 personnel would include the audiometric

55:10 technician. So each soldier was required to

55:11 obtain a surveillance audiogram annually during

55:12 that period they received their training,

55:13 inspection of their hearing protection.

55:14 Now when they were talking about the

55:15 triple or single-flange earplugs, these are a

55:16 type of earplug that require a fitting tool that

55:17 comes with the case. So it had to be determined

55:18 if they knew how to use that and were provided

55:19 that as well. If there was a significant

55:20 threshold shift, then a different type of earplug

55:21 would be fit because if there's a threshold shift

55:22 then and the soldier is reporting that they are

55:23 using that earplug, then we would try to use a

55:24 different type of earplug. If there was no

55:25 significant threshold shift, they had their

56:01 earplugs on hand and they were in good condition,

56:02 then they continue using those.

56:03 Q. Okay. Then it says, "triple-flange

56:04 earplugs are usually the first type of earplug

56:05 that medically trained personnel attempts to fit.

56:06 If these don't fit properly, the individual must

56:07 be fitted with another type of earplug."

56:08 Was that still the practice when you

56:09 were at Fort Benning from May to August of 2008

56:10 or had that practice been adjusted or changed in

56:11 light of new products that were being used?

56:12 A. Right. Now I believe when this

56:13 instruction was written, the predominant two

Page 17 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 18 of 25
56:14 types of earplugs being used by the DoD were the

56:15 triple-flange earplug and the single-flange. By

56:16 the time I was at Fort Benning, the single-flange

56:17 earplugs, they were no longer being produced and

56:18 were becoming rare in stock. So those weren't

56:19 fit very often because most of the time no one

56:20 was able to order them. And the Elvex Quattros

56:21 had essentially replaced the single-flange

56:22 earplug. So it was typically the first earplug

56:23 that was -- that was used, which was why the

56:24 Quattros were issued to the new recruits.

56:25 Q. When you say "the Quattros were issued

57:01 to the new recruits," would that include any

57:02 soldiers who began their service at Fort Benning,

57:03 that is, they did their training at Fort Benning?

57:04 A. Well, that's who I'm referring to.

57:05 These are recruits that process through the 30th

57:06 AG at Fort Benning.

57:08 - 57:20 Davis, James (2021-01-28) 1:46

57:08 You testified in response to counsel's Re: [57:08 to 57:20] SUSTAINED

57:09 question that when a soldier would have an Pltf Obj 401, 403

57:10 audiogram, they would be asked about

57:11 tinnitus-like symptoms even if not specifically

57:12 asked about tinnitus.

57:13 Could you tell us why soldiers were

57:14 asked routinely as part of their audiogram about

57:15 tinnitus-like symptoms?

57:16 A. Well, tinnitus is usually the first sign

57:17 of over exposure to noise, so that would give us

57:18 an indication that they were still being over

57:19 exposed if tinnis- -- if there was an onset of

57:20 tinnitus since their previous exam.

58:03 - 58:16 Davis, James (2021-01-28) 1:49

58:03 Did you ask about symptoms such as Re: [58:03 to 58:16] SUSTAINED

58:04 ringing or buzzing in the ears so that even if a Pltf Obj 401, 403

58:05 soldier didn't know the diagnosis of tinnitus,

58:06 they would understand that what they're being

58:07 asked about are symptoms that are associated with

58:08 that diagnosis?

58:09 A. Correct.

58:10 Q. Dr. Davis, do you recall ever training

58:11 any soldier or giving any soldier any instruction

58:12 on how to properly fit a Combat Arms Earplugs

58:13 Version 2 --

58:14 A. I don't recall --

58:15 Q. -- during your time at Fort Benning, in

58:16 this time period?

58:19 - 61:20 Davis, James (2021-01-28) 4:19

58:19 A. I don't recall it. Re: [58:19 to 61:20] SUSTAINED (58:19-60:06)

Page 18 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 19 of 25
58:20 Q. In connection with Topic D that we were Pltf Obj 401, 403

58:21 talking about, your practices and procedures

58:22 pertaining to auditory testing or hearing

58:23 conservation, including the fit and use of

58:24 earplugs from May of 2008 to August of 2008, did

58:25 you instruct soldiers as to the importance of

59:01 having a proper fit or seal in connection with

59:02 their earplugs?

59:03 A. Yes.

59:04 Q. And tell us what you would tell the

59:05 soldiers in connection with having the proper

59:06 seal or fit?

59:07 A. Well, in order to best understand from

59:08 their aspect, you know, lay terms, I typically

59:09 will liken it to the seal in your sink. If there

59:10 is any leakage at all, then the water will get

59:11 through. If there's any leakage in the earplug

59:12 itself, then the air will get through. The sound

59:13 is simply air molecules vibrating. So if you're

59:14 going to block the noise for any sound, you have

59:15 to block the air.

59:16 Q. Is it fair to say that you never

59:17 instructed any soldiers on how to get a proper

59:18 seal or fit with respect to the Combat Arms

59:19 Earplugs Version 2?

59:20 A. Well, I don't recall fitting them.

59:21 Q. And during the time that you were at

59:22 Fort Benning, whose responsibility would it have

59:23 been to give instructions to the soldiers about

59:24 how to get a proper seal or fit for the CAEv2 if

59:25 they were being issued at that time?

60:01 A. Well, if it was the technician testing,

60:02 the technician would have done that. If it was

60:03 an evaluation being done by me because of a

60:04 failed surveillence audiogram, then I would

60:05 provide that training individually.

60:06 Q. Okay. And even though you didn't fit or

60:07 issue any CAEv2s during that time period, did you

60:08 receive any training from the military on how to

60:09 fit CAEv2s in the event that you were going to

60:10 use such devices?

60:11 A. In a very general way.

60:12 Q. Tell us what you recall about any

60:13 training you --

60:14 A. Basically -- I mean, it's a preformed

60:15 earplug. The fit would be -- I mean, we would do

60:16 it the same way as any other preformed earplug

60:17 with the difference being which -- which end to

60:18 use to correctly determine the function. If

60:19 they're going to be around continuous noise, then

60:20 the solid end would need to be used. If they're

60:21 going to be in combat where they may need to

Page 19 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 20 of 25
60:22 communicate, but there was the -- if there was a

60:23 possibility of gun fire, then they would wear the

60:24 filtered end in order to be able to hear and

60:25 communicate for awareness, but they would get

61:01 momentarily -- momentary protection from the

61:02 filter.

61:03 So the difference between another type

61:04 of solid earplug and the Combat Arms of any

61:05 version would be, when do you use the filtered

61:06 end and when do you use the solid part of the

61:07 earplug?

61:08 Q. And had you received specific training

61:09 on the CAEv2s or was your training in general

61:10 with respect to any device simply with the

61:11 knowledge of the CAEv2 is a double-sided and

61:12 determining when to use the yellow and when to

61:13 use the green side?

61:14 A. I remember it being explained to me in

61:15 the Navy. You know, in the Navy, there wasn't

61:16 that strong of a push to use CAEs because at

61:17 least for myself I was dealing with sailors, and

61:18 their -- their noise was -- well, I probably

61:19 shouldn't get into this because we're going

61:20 outside the time frame.

61:22 - 61:25 Davis, James (2021-01-28) 0:08

61:22 A. It was limited, though. Re: [61:22 to 61:25]

61:23 Q. Did you get any training while you were Pltf Obj 401, 403

61:24 in the Army?

61:25 A. Nothing specific, no.

62:06 - 62:19 Davis, James (2021-01-28) 1:49

62:06 Did you get any training from the Re: [62:06 to 62:19]

62:07 Army -- Pltf Obj 401, 403

62:08 A. No.

62:09 Q. -- in connection with fitting CAEv2s?

62:10 A. No, no, no.

62:11 Q. Any training from the Army in terms of

62:12 deciding when, if ever, to issue CAEv2s from May

62:13 of 2008 to August of 2008 while you were --

62:14 A. No, ma'am.

62:15 Q. Any training from the Army during that

62:16 time period at Fort Benning as to how to test for

62:17 a proper seal for CAEv2s?

62:18 A. Not from the Army. I was already aware

62:19 of how to do that in my past experience.

62:23 - 63:07 Davis, James (2021-01-28) 1:55

62:23 Q. Okay. During the time that you were at Re: [62:23 to 63:07] SUSTAINED

62:24 Fort Benning, did you see any posters, any Pltf Obj 401, 403

62:25 PowerPoint presentations, any other media devices

63:01 that were displayed concerning the CAEv2s and how

Page 20 of 24

Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 21 of 25
63:02 to fit those devices?

63:03 A. I don't remember any -- any posters.

63:04 The PowerPoint presentations given during the

63:05 training at the 30th AG, if I'm recalling -- this

63:06 is tough to remember -- it went over different

63:07 types of hearing protection.

63:12 - 63:23 Davis, James (2021-01-28) 1:44

63:12 Q. Do you recall seeing any, what I'll call Re: [63:12 to 63:23] SUSTAINED

63:13 a wallet card, a card that would be given to Pltf Obj 401, 403

63:14 soldiers in connection with the CAEv2s that gave

63:15 any instructions on fitting or placement of the

63:16 CAEv2s? Again, any time while you were at Fort

63:17 Benning in this time frame?

63:18 A. Yeah. I don't -- cards for the -- for

63:19 the Version 2s. I think we did have them for the

63:20 other types, if I'm remembering. We just had --

63:21 we just ordered what we had for what we were

63:22 fitting, you know. I don't remember -- I don't

63:23 remember any posters.

64:12 - 64:19 Davis, James (2021-01-28) 0:16

64:12 (WHEREUPON, THE DOCUMENT WAS MARKED AS Re: [64:12 to 64:19]

64:13 EXHIBIT NO. 2 TO THE TESTIMONY OF THE WITNESS AND

Pltf Obj 401, 403

64:14 IS HERETO ATTACHED.)

64:15 BY MS. KARIS:

64:16 Q. Dr. Davis, I put up here what is MDL

64:17 00022 --

64:18 A. There we go.

64:19 Q. -- 9332.

64:25 - 64:25 Davis, James (2021-01-28) 0:03

64:25 Q. Do you recognize this document? Re: [64:25 to 64:25]

Pltf Obj 401, 403

65:08 - 65:17 Davis, James (2021-01-28) 1:30

65:08 A. I honestly couldn't say if I had ever Re: [65:08 to 65:17]

65:09 seen it before or not. Different -- different Pltf Obj 401, 403

65:10 training materials were produced by each branch

65:11 public health center, but it was always up to

65:12 each particular unit command, whatever, to

65:13 actually order these things. So I've seen

65:14 different cards, you know, floating around

65:15 basically over the course of my career, but I

65:16 don't know if I've specifically seen this one

65:17 before.

65:21 - 66:05 Davis, James (2021-01-28) 1:32

65:21 Q. -- the second page of the document. Re: [65:21 to 66:05]

65:22 You recognize that device as being the Pltf Obj 401, 403

65:23 Combat Arms Earplug Version 2, the --

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Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 22 of 25
65:24 A. Right. The double -- the double-ended

65:25 one, yes.

66:01 Q. Is it fair to say, Dr. Davis, you

66:02 certainly never gave any soldier this card or

66:03 wallet card with any instructions associated with

66:04 the card; is that correct?

66:05 A. I don't think so, no.

66:10 - 66:18 Davis, James (2021-01-28) 1:33

66:10 Q. Okay. Even though you never issued any Re: [66:10 to 66:18] SUSTAINED

66:11 Combat Arms earplugs during the time that you Pltf Obj 401, 403

66:12 were at Fort Benning, recognizing your testimony

66:13 that CAEv2 was being phased out and you're not

66:14 aware of anybody issuing them, did you come to

66:15 have any knowledge regarding how soldiers were

66:16 instructed with respect to inserting the CAEv2s?

66:17 A. Not from anyone outside my own

66:18 department.

66:20 - 67:05 Davis, James (2021-01-28) 1:55

66:20 A. If they were fitting them, I don't know. Re: [66:20 to 67:05] SUSTAINED

66:21 Q. You testified, if I heard you correctly, Pltf Obj 401, 403

66:22 that you wouldn't consider filtered earplugs to

66:23 be appropriate around equipment or engine noise.

66:24 Do you recall that testimony?

66:25 A. Correct.

67:01 Q. Could you explain what you meant there?

67:02 A. Well, a filtered earplug is intended for

67:03 intermittent, high intensity noise. But the

67:04 filter is unable to attenuate a constant noise,

67:05 an engine noise, machinery that's constant noise.

67:10 - 67:13 Davis, James (2021-01-28) 0:18

67:10 Q. Did you ever instruct any soldiers, even Re: [67:10 to 67:13]

67:11 if you weren't giving them the CAEv2s, on how and Pltf Obj 401, 403

67:12 when to use each side or end of the Combat Arms

67:13 Earplugs Version 2?

67:18 - 68:02 Davis, James (2021-01-28) 0:25

67:18 A. Well, the thing is I don't recall Re: [67:18 to 68:02]

67:19 fitting that particular one, just the later Pltf Obj 401, 403

67:20 versions. And I certainly did discuss when it

67:21 was appropriate to use the filtered setting

67:22 because that's a very important aspect of this

67:23 type of earplug to understand.

67:24 Q. And your discussion was in connection

67:25 with other devices, not the CAEv2; is that

68:01 correct?

68:02 A. Correct.

68:18 - 68:23 Davis, James (2021-01-28) 1:31

68:18 Now you testified that at least during Re: [68:18 to 68:23]

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Case 7:20-cv-00094-MCR-GRJ Document 143-1 Filed 05/24/21 Page 23 of 25
68:19 the time that you were at Fort Benning, you did Pltf Obj 401, 403

68:20 instruct on other devices other than the CAEv2,

68:21 and other devices I mean hearing protection

68:22 devices, correct?

68:23 A. Correct.

69:18 - 70:10 Davis, James (2021-01-28) 1:57

69:18 Q. What you also recall is at that time, Re: [69:18 to 70:10]

69:19 the CAEv2 was a device that was moved away from Pltf Obj 401, 403

69:20 and different types of devices, including the

69:21 Elvex Quattro had been phased in at Fort Benning,

69:22 correct?

69:23 A. In my department --

69:24 Q. In your department.

69:25 A. -- which is -- yeah, which is all I had

70:01 any control over. I understand that safety has a

70:02 responsibility -- like each unit's command has to

70:03 provide hearing protection. And I believe this

70:04 is universal through the DoD, if I'm not

70:05 mistaken. I know with the Navy, this is true.

70:06 So as I stated before, soldiers could

70:07 get earplugs from different -- in different

70:08 manners, you know. In my department, it was the

70:09 later version CAEs, the Elvex Quattros

70:10 triple-flange and hand formed.

70:11 - 70:22 Davis, James (2021-01-28) 1:36

70:11 Q. And did you have an understanding as to Re: [70:11 to 70:22] SUSTAINED

70:12 whether other departments within Fort Benning had Def Obj relevance (401, 402);

70:13 different -- were using different devices than 403

70:14 the ones you were familiar with?

70:15 A. Well, I really didn't know at that time.

70:16 Q. Okay. So you don't know one way or the

70:17 other. Is that --

70:18 A. I really don't. Yeah. I mean, being

70:19 brand new to the block, you know, there was a lot

70:20 of learning. I didn't even speak the Army

70:21 language. I still don't speak the Army language,

70:22 but it was a learning curve, let me tell you.

70:25 - 71:04 Davis, James (2021-01-28) 0:19

70:25 You testified -- if I heard you Re: [70:25 to 71:04]

71:01 correctly -- that what -- in terms of issuing Pltf Obj 401, 403

71:02 hearing protection devices and different types of

71:03 hearing protection devices, I believe your words

71:04 were what works for one doesn't work for others.

71:05 - 71:08 Davis, James (2021-01-28) 0:08

71:05 A. No. What I said, what works with one

71:06 may not for another person.

71:07 Q. Fair enough. What works for one may not

71:08 work for another person.

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71:09 - 72:13 Davis, James (2021-01-28) 2:45

71:09 A. You've got to look at the individual to Re: [71:09 to 72:13]

71:10 determine what's going to be -- what you can Pltf Obj 401, 403

71:11 surmise to be the best item to try to use first

71:12 or second or third, you know.

71:13 Q. Fair enough.

71:14 A. It's definitely not a one size fits all

71:15 situation.

71:16 Q. And what are the characteristics that

71:17 you look for in order to determine what is the

71:18 best fit for a particular soldier in terms of

71:19 selecting hearing protection device, again, based

71:20 on your experience at that time?

71:21 A. Yeah. Ear canal size. Is it a larger

71:22 canal? It a narrow ear canal? Is the ear canal

71:23 relatively straight? Or is -- are there sharp

71:24 bends? Ordinarily, we have two bends in our ear

71:25 canals, not a straight line to the eardrum. And

72:01 also sensitivity to the earplug. Some people

72:02 can't tolerate a harder material earplug as some

72:03 other person may be able to tolerate it. There's

72:04 a lot of individuality there.

72:05 Q. And during the time that you were at

72:06 Fort Benning, is it your understanding that the

72:07 role or responsibility of determining what was

72:08 the best fit for a hearing protection device for

72:09 a particular soldier was performed within the

72:10 Hearing Conservation Program of the Army?

72:11 A. That's a tough one to answer because, as

72:12 I said, soldiers were getting Army-approved

72:13 earplugs outside of the base.

72:17 - 73:06 Davis, James (2021-01-28) 1:51

72:17 A. And when you're dealing with thousands Re: [72:17 to 73:06]

72:18 upon thousands of people, one little audiology Pltf Obj 401, 403

72:19 department is not going to be able to completely

72:20 track what's going on there. That's why safety

72:21 is supposed to be monitoring that. So if you're

72:22 a soldier with one -- I'm trying to remember what

72:23 the Army calls it -- you know, one battalion or

72:24 what have you, they have their own safety reps

72:25 that watch what their own -- their own personnel

73:01 are doing or even issuing those earplugs to.

73:02 Now some earplugs they can issue like

73:03 the hand form. That doesn't require a medical

73:04 fitting. But anything that was fit from my

73:05 department was fit by the technicians or by the

73:06 audiologist.

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