EXHIBIT 3 

Case 7:20-cv-02945-MCR-HTC Document 20-3 Filed 08/09/22 Page 1 of 68
1 

2 

Richard S. Tyler, Ph.D. 

A P P E A R A N C E S 

3 Plaintiff by: 

4 

5 

6 

7 

8 

JOSHUA BAUER 

Attorney at Law 

Reich & Binstock, LLP 

4265 San Felipe Street 

Suite 1000 

Houston, TX 77027 

(713) 623-8724 

jbauer@reichandbinstock.com 

9 Defendants by: 

ERIC D. OLSON 

10 Attorney at Law 

Bowman and Brooke, LLP 

11 150 South Fifth Street 

Suite 3000 

12 Minneapolis, MN 55402 

(612) 672-3298 

13 eric.olson@bowmanandbrooke.com 

14 

15 Also Present: Jacqueline Brant 

Michelle Lester 

16 Jamie McCarthy 

17 

18 

19 

20 

21 

22 

23 

24 

25 

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1 

Richard S. Tyler, Ph.D. 

THE REPORTER: All parties to 

2 this deposition are appearing remotely and have 

3 agreed to the witness being sworn in remotely. 

4 Due to the nature of remote reporting, please 

5 pause briefly before speaking to ensure all 

6 parties are heard completely. 

7 Counsel, please state your 

8 appearance. 

9 MR. OLSON: Good morning. This 

10 is Eric Olson from the law firm Bowman and 

11 Brooke on behalf of the 3M defendants. I have 

12 with me today my colleagues Jacqueline Brant, 

13 Michelle Lester, and Jamie McCarthy. 

14 MR. BAUER: Joshua Bauer of 

15 Reich & Binstock, LLP, on behalf of the 

16 plaintiff. 

17 RICHARDS. TYLER, Ph.D., 

18 called as a witness, having been first duly 

19 sworn, testified as follows: 

20 DIRECT EXAMINATION 

21 BY MR. OLSON: 

22 Q. Thank you. Doctor Tyler, if you could 

23 state your name and spell your last name for 

24 the record, please. 

25 A. Richard Sydney Tyler, T-Y-L-E-R. 

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1 

2 

A. 

Q. 

Richard S. Tyler, Ph.D. 

Yes, I understand that. 

And like you just heard from the court 

3 reporter a few moments ago, because we are 

4 remote, if you could just wait a second after 

5 you think I'm done speaking before you start 

6 your answer, and I'll try to do the same so we 

7 can avoid cutting each other off. 

8 And then also that will give 

9 Mr. Bauer a chance to interpose any objections 

10 that he might have as we go through the 

11 process. Will that work for you? 

12 

13 

A. 

Q. Very good. Thank you. And, of 

Yes, I understand. That works. 

14 course, because this is being transcribed by 

15 the court reporter, please try to respond 

16 verbally to any of my questions, so yes or no 

17 or an explanation as opposed to shaking your 

18 head yes or no or uh-huh or huh-uh. Those just 

19 don't translate very well and can lead to 

20 confusion later. 

21 

22 

A. 

Q. Perfect. If I ask you a question 

I understand. Thank you. 

23 today that's confusing or that you don't 

24 understand what I'm asking, please let me know, 

25 and I'll rephrase it for you. 

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Richard S. Tyler, Ph.D. 

1 your computer or cell phone unless you have to, 

2 you're on call or something like that, in which 

3 case certainly leave those on. 

4 

5 

A. 

Q. 

I have nothing else on. 

Perfect. And then before we begin, I 

6 would just ask that everyone except for the 

7 witness, the court reporter, and Mr. Bauer mute 

8 their audio just so we don't have any 

9 interruptions accidentally. 

10 Doctor Tyler, where are you 

11 located right now, physically? 

12 

13 

A. 

Q. 

I am in my office in Iowa City, Iowa. 

Is there anyone in your office with 

14 you today right now? 

15 

16 

A. 

Q. 

No, there's not. 

Okay. What documents do you have with 

17 you today, Doctor Tyler? 

18 

19 

A. 

Q. 

No other documents. 

Do you have any other documents open 

20 on your computer other than the website I asked 

21 you to open? 

22 

23 

24 

A. 

Q. 

No, I do not. 

Okay. So, Doctor Tyler, let's give 

this technology a shot here. I'm going to 

25 promote an exhibit to that folder. Give me 

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Richard S. Tyler, Ph.D. 

1 page 4 of this exhibit, this is Schedule A, and 

2 go down to the document requests section. 

3 These are four requests that 

4 were served with the amended notice of 

5 deposition asking you to produce any documents 

6 or files in your possession that would be 

7 responsive. 

8 Have you reviewed these four 

9 requests, Doctor Tyler? 

10 

11 

A. 

Q. 

Yes, I have. 

Do you have any documents that are 

12 responsive to these requests? 

13 

14 

A. 

Q. 

No, I do not. 

Okay. So just to clarify, you don't 

15 have any notes or anything like that related to 

16 your examination of the plaintiff? 

17 

18 A. No. 

MR. BAUER: Objection, form. 

I did make some notes when I 

19 interviewed her, but I did not keep them. They 

20 all went into my report. 

21 Q. Okay. Then I'm going to stop sharing 

22 here. And you should have my smiling face back 

23 in front of you again. 

24 How much time did you spend 

25 preparing for your deposition, Doctor Tyler? 

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Richard S. Tyler, Ph.D. 

1 documents were those? 

2 A. Well, they were -- I don't recall all 

3 of them. Certainly my report and some of her 

4 reports and then the hearing evaluation, things 

5 that I thought were relevant to the case. 

6 Q. By "hearing evaluation," you're 

7 referring to the medical examination that was 

8 performed in this case? 

9 

10 

A. 

Q. 

Yes, with the audiograms on it. 

Okay. And did you do any independent 

11 preparation other than reviewing those records 

12 without any attorneys present? 

13 A. No, I did not. 

14 Q. Did you discuss this deposition or 

15 this litigation with anyone other than 

16 Mr. Bauer? 

17 

18 

A. 

Q. 

No, I did not. 

Have you ever attended a presentation 

19 or training session put on by a Doctor 

20 Spankovich related to the 3M litigation? 

21 A. No. I've been asked that several 

22 times, though. I feel like I'm missing out on 

23 something somewhere. 

24 Q. I don't know that it's really that 

25 exciting, and I don't think it's terribly 

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Richard S. Tyler, Ph.D. 

1 

2 now. 

A. Well, I don't have that in front of me 

I think it's probably around 375 for 

3 depositions. 

4 Q. Okay. So 80 to $100 more, something 

5 along those lines? 

6 

7 

8 

9 

A. 

Q. 

A. 

Q. 

Yes. 

And is that increase across the board? 

Except for the travel. 

Okay. When were you retained by the 

10 plaintiff in this case? 

11 

12 

A. 

Q. 

I don't recall. 

So obviously this isn't a memory test. 

13 Can you give me an approximate month when you 

14 were retained? 

15 

16 

A. Well, it would only be approximate. 

I'm sorry. I haven't kept track of these 

17 things. 

18 

19 

20 

Q. 

A. 

Q. 

So sometime -- but sometime before -- 

Several months ago. 

Several months ago, that's fair. And 

21 you submitted your expert report on April 11th 

22 of 2022; correct? 

23 A. I'd have to check the date, but that 

24 sounds right. 

25 Q. I'm talking about your first expert 

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Richard S. Tyler, Ph.D. 

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 

5 

A. 

Q. 

Yeah, a little bit larger would help. 

Sure. Let me see if I can do that. 

6 Is that better? 

7 

8 

A. 

Q. 

Oh, much better, yes. 

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 

13 

14 

A. 

Q. 

I believe that's correct, yes. 

Okay. And so I'm just going to scroll 

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 

19 

20 

21 

A. 

Q. 

A. 

Q. 

Yes, it is. 

And dated yesterday? 

That's correct, yes. 

And so what changes did you make to 

22 your report between the first report and this 

23 amended report? 

24 

25 

A. Can we go 

MR. BAUER: Can I interject? 

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Richard S. Tyler, Ph.D. 

1 and when you submitted your initial reports, 

2 since we've established there was no 

3 substantive difference, how many hours did you 

4 work on the case? 

5 A. You said from -- after I submitted the 

6 report? 

7 

8 

Q. 

report. 

I'm sorry. Before you submitted the 

So from when you were engaged to when 

9 you submitted the report. 

10 A. Oh. So I would say approximately ten 

11 hours. 

12 Q. Approximately ten hours. And how many 

13 of those hours did you spend reviewing 

14 documents and records relating to the 

15 plaintiff? 

16 

17 

A. 

Q. 

Those were all related to this case. 

Let me sort of put those hours into 

18 sort of two buckets, and the first bucket will 

19 be reviewing documents and records, and the 

20 second would be your evaluation of the 

21 plaintiff, and then the third would be writing 

22 your expert report. Okay? 

23 So of those three buckets, how 

24 many of those hours did you spend reviewing 

25 documents and records relating to the 

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Richard S. Tyler, Ph.D. 

1 your work as an expert in the Combat Arms 

2 litigation to date? 

3 

4 A. 

MR. BAUER: Objection, form. 

So I don't have a very good idea how 

5 to answer that. 

6 Q. I don't want to misrepresent your 

7 testimony here, but I think you've testified 

8 that you've spent ten hours working on the 

9 report, you know, basically prereport and then 

10 about four hours preparing for the deposition. 

11 So about 14 to 15 hours in this 

12 case; is that correct? Fair enough? 

13 

14 

A. 

Q. 

Yeah, approximately. 

And is that similar for every 

15 plaintiff that you've worked on? 

16 A. I'd have to go back and check. I 

17 think several of the other ones were -- I spent 

18 more time. 

19 Q. All right. Have you submitted any 

20 invoices related to your work for this case? 

21 A. I don't recall. I think I did, but 

22 I'm not sure. 

23 Q. Okay. Have you been paid for your 

24 work on this case yet? 

25 A. I don't believe so, but I'm not sure. 

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Richard S. Tyler, Ph.D. 

1 since 2016; is that fair? And there's one on 

2 the next page. 

3 A. Yeah. So this is probably not a good 

4 estimate. It might be approximately right. I 

5 never knew I was supposed to keep track of 

6 these, so I did not keep good track of these. 

7 Q. Okay. But you've listed here three 

8 cases since 2016, approximately; correct? 

9 A. Yeah. It would be one or two more, 

10 but I am not sure. 

11 Q. Okay. And before 2016 have you also 

12 testified as an expert witness in litigation? 

13 

14 

A. 

Q. 

Yes, I have. 

About how many times total have you 

15 testified as an expert? 

16 

17 

A. 

those. 

Well, again, I haven't kept track of 

I could guess maybe another five or 

18 ten. 

19 Q. Okay. Have you ever testified in any 

20 cases relating to hearing protection devices 

21 pre 3M? 

22 

23 

A. 

Q. 

I think that I have. 

Do you have any recollection about 

24 what that case was about? 

25 A. I think it was somebody shooting a 

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Richard S. Tyler, Ph.D. 

1 that you intend to testify to at trial, if we 

2 go to trial in this case? 

3 

4 

A. 

Q. 

Yes, it does. 

Okay. Other than counsel, did you 

5 consult anyone as you were preparing this 

6 report? 

7 

8 

A. 

Q. 

No, I did not. 

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 

22 

23 

24 

A. 

A. 

Q. 

Well, I 

MR. BAUER: Objection, form. 

I reread them for this case as well. 

And you're relying on those reports 

25 for your opinions today; correct? 

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1 A. 

Richard S. Tyler, Ph.D. 

Well, I think I did, but I didn't see 

2 anything clear that contradicted anything here. 

3 Q. Okay. As you reviewed these general 

4 reports, the plaintiffs' general reports, to be 

5 clear, did you disagree with any of those 

6 conclusions? 

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

8 each conclusion that they made. As I said, I 

9 think it was pretty clear to me from looking at 

10 the original internal documents from the 3M 

11 engineers that the device was not working as it 

12 was intended to and they recommended that they 

13 be recalled, and the supervisors at 3M did not 

14 agree with them and did not recall them. So I 

15 think that's one of the most important things 

16 here. 

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

18 strike as nonresponsive. 

19 

20 

Q. Doctor Tyler, I'm going to turn to 

Exhibit A of your report. This is a list of 

21 case-specific materials relied on; correct? 

22 

23 

A. 

Q. 

Case-specific materials, yes. 

Yes. You understand that you have an 

24 obligation to disclose all of your opinions and 

25 the basis for those opinions in your report; 

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1 A. 

Richard S. Tyler, Ph.D. 

Well, specifically, again, I'd have to 

2 go back and check what's in Exhibit A, but I 

3 thought the initial reports within the 3M 

4 company are also related specifically to this 

5 case. 

6 Q. Okay. So the internal 3M documents 

7 were also -- should be on this list, and I'll 

8 grant you that. 

9 

10 

A. 

Q. 

Okay. Thank you. 

And as you sit here today, you don't 

11 have any plans to prepare a second amended 

12 report in this case; correct? 

13 A. At this time the answer is that's 

14 correct. 

15 Q. Okay. So same caveat applies. If a 

16 record, document, or testimony is not on your 

17 materials considered list, you haven't reviewed 

18 it, is that fair, specific to this case? 

19 

20 

A. 

Q. 

Specific to this case, that's true. 

Okay. And you've read and considered 

21 every document on this list here today; 

22 correct? 

23 

24 

A. 

Q. All right. So then if a document is 

That's correct, yes. 

25 not on this list, you didn't review it, that's 

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Richard S. Tyler, Ph.D. 

1 Q. Oh, absolutely. I'm speaking 

2 specifically to this Exhibit A at this point. 

3 

4 

A. 

Q. 

Oh. 

Do you know approximately how many 

5 pages of medical records you received and 

6 reviewed in this case? 

7 

8 

A. 

Q. Okay. So I think I did some 

No, I do not. 

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 

15 

A. 

Q. 

I'd guess that's correct, yes. 

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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Richard S. Tyler, Ph.D. 

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 

15 

A. 

Q. 

Yes, that's fair. 

Okay. And the plaintiff in this case 

16 is Shanika Roper; correct? 

17 

18 

19 

20 

A. 

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

I believe it's the bottom of 

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

Correct. 

here to the 

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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Richard S. Tyler, Ph.D. 

1 order that says you are not to get into the 

2 drafting of any report, and I can pull that up 

3 if you want to go look at it. But I'm sure you 

4 know that it exists. 

5 

6 move on here. 

MR. OLSON: All right. Let's 

7 Q. So, Doctor Tyler, can I get your 

8 definition of what tinnitus is as a medical 

9 condition? 

10 

11 

A. Well, I'd consider tinnitus as a 

health-related condition. It's the perception 

12 of a sound either generated in the middle ear 

13 or in the auditory nervous system when there is 

14 no external sound. 

15 Q. Okay. And then what are the symptoms 

16 that are typically associated with tinnitus? 

17 A. Well, they're quite different in 

18 different people. The symptoms are hearing a 

19 sound, and the sound perceived can be a 

20 popping, ringing noise, can be quite a variety 

21 of different sounds. 

22 It can be something that's 

23 

24 intermittent. 

It can be 

It can be heard for, you know, a 

continuous 24 hours a day. 

25 few hours a day, few minutes a day, and every 

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Richard S. Tyler, Ph.D. 

1 tinnitus, because it could be a twitch in the 

2 muscle. I always refer to it as middle ear 

3 tinnitus. 

4 Q. Okay. That's fair enough. Just 

5 correct me if I use the wrong terminology here 

6 today. 

7 And then, additionally, what's 

8 somatic tinnitus? 

9 A. So somatic tinnitus is a tinnitus that 

10 can be modified or changed when someone 

11 receives pressure on their neck or their face 

12 or their head somewhere, when they clench their 

13 jaws. It's very interesting. There's not a 

14 lot known about it. 

15 I was just asked to lead a 

16 whole journal issue on somatic tinnitus, but I 

17 couldn't get enough people that felt 

18 comfortable with the knowledge of it. 

19 But that's basically what it 

20 is 

21 

22 

Q. 

A. 

Okay. 

-- just being able to change your 

23 tinnitus with usually pressure on the head or 

24 neck. 

25 Q. And tinnitus is a fairly common 

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Richard S. Tyler, Ph.D. 

1 tinnitus is described as a subjective 

2 complaint? I'm leaving aside the objective 

3 tinnitus that we spoke about briefly earlier. 

4 

5 

A. 

Q. 

Yes, that's fair. 

Okay. And that means that there's no 

6 objective diagnostic test to confirm tinnitus; 

7 correct? 

8 

9 

A. 

Q. 

Not sensorineural tinnitus. 

And the severity of tinnitus is 

10 generally based on the patient's subjective 

11 experience; is that fair? 

12 

13 

A. 

Q. 

That's correct, yes. 

How frequently and of what duration 

14 must tinnitus occur in order for it to be 

15 considered a significant case of tinnitus? 

16 A. Well, a significant case I guess I 

17 would define as how it interferes with the 

18 individual's life. So for some people if the 

19 tinnitus is -- everybody's different, so that 

20 has to be stated very clearly. 

21 For some people the tinnitus is 

22 on continuously and doesn't change. Then one 

23 could maybe understand that it's easier to 

24 adapt to. 

25 If the tinnitus is intermittent 

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Richard S. Tyler, Ph.D. 

1 that indicates that genetics can play a factor 

2 in the experience of tinnitus. There's certain 

3 otological -- excuse me -- ototoxic substances, 

4 traumatic brain injuries, migraines, other 

5 physical conditions. 

6 There's a number of things that 

7 can cause or contribute to tinnitus. That's 

8 what I'm getting at. 

9 A. Well, so by using the term "cause" and 

10 "contribute," I think that's sort of confusing. 

11 First of all, it's not clear in my mind there's 

12 any good evidence that genetics has a role to 

13 play, at least not yet. 

14 And, you know, by using the 

15 word "contribute" it certainly is true that if 

16 you have other challenges in your life, you're 

17 having trouble at work or having trouble at 

18 home and then you get tinnitus, then that's 

19 going to -- your tinnitus can make it more 

20 difficult to deal with other problems going on 

21 in your life. 

22 

23 

Q. 

A. 

Okay. 

That's one way of answering your 

24 question. 

25 Q. That's fair. Doctor Tyler, are you a 

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1 A. 

Richard S. Tyler, Ph.D. 

And I'm not sure that -- I'm usually 

2 there to provide support and counseling, not 

3 diagnosis. 

4 Q. Okay. Would it be unusual for you to 

5 only conduct a telehealth visit when you're 

6 diagnosing or conducting a patient exam? 

7 A. Well, again, by diagnosing an exam 

8 using the word "diagnosing" and using the word 

9 "exam" is not how I would frame my help to the 

10 patient. 

11 I'm there to help them 

12 understand what problems they're having and to 

13 suggest and help guide them through strategies 

14 that might help them reduce the impact of the 

15 tinnitus on their life. 

16 Q. Okay. And so, generally speaking, 

17 your testimony is that you aren't really there 

18 to diagnose? You're more to provide support 

19 and coping? 

20 I don't want ·to take words out 

21 of your mouth. So tell me if that's a fair 

22 statement or not. 

23 A. Yes, that's a fair statement. 

24 Q. Okay. Are there any sort of medical 

25 tests that you would generally perform to try 

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1 Q. 

Richard S. Tyler, Ph.D. 

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 

7 

A. 

Q. 

That's correct, yes. 

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 

12 

A. 

Q. 

That's correct, yes. 

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 

25 

A. 

Q. 

They would, yes. 

Okay. Do you perform any testing when 

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Richard S. Tyler, Ph.D. 

1 ear canal. 

2 Q. All right. Do you ever advise 

3 patients who are hunters or recreational 

4 shooters to wear hearing protection devices 

5 when discharging firearms? 

6 

7 

A. 

Q. Okay. And that's because the noise 

Absolutely, yes. 

8 from firearms can cause hearing loss and 

9 hearing damage; is that correct? 

10 

11 

12 

13 

A. 

Q. 

A. 

Q. 

That's correct, yes. 

Including tinnitus? 

Yes, that's correct. 

And do you advise your patients who 

14 attend sporting events in loud crowds to wear 

15 hearing protection devices? 

16 A. Well, that would depend, you know, if 

17 it's a sporting event where you're not sitting 

18 close to where the noise is and the noise is 

19 not impulsive or there all the time. And the 

20 same could be true about crowds in general, but 

21 it's good to have hearing protection with you 

22 in case those situations are loud. 

23 Q. Okay. And so to the extent that the 

24 crowd noise is loud, that can cause hearing 

25 damage or auditory trauma as we discussed, as 

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1 

2 A. 

Richard S. Tyler, Ph.D. 

MR. BAUER: Objection, form. 

I don't know -- I don't understand 

3 your question. 

4 Q. To your knowledge, there is no hearing 

5 protection device on the market that can 

6 entirely protect a person from hearing damage 

7 under the circumstances in which they're 

8 exposed to loud noise; correct? 

9 

10 A. 

MR. BAUER: Objection, form. 

Well, the hearing protection comes 

11 with noise reduction ratings, and as long as 

12 the noise that that person is exposed to is not 

13 above your noise reduction ratings, then that 

14 hearing protection would be perfect if they 

15 stayed in place after they were inserted. 

16 Q. So what would you consider a safe dBA 

17 level for an individual to experience? 

18 

19 A. 

MR. BAUER: Objection, form. 

Well, without hearing protection I 

20 believe it's around -- again, I'd have to check 

21 the records on this, and it depends, variation 

22 from one individual to another, but it's around 

23 60, 65 dBA for an eight-hour shift. 

24 Q. And are you aware that the Army 

25 requires the use of double hearing protection 

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1 

2 

3 

Q. 

A. 

Q. 

Richard S. Tyler, Ph.D. 

Let's call it a telehealth visit. 

Yes, that's correct. 

And would you describe that as an 

4 examination or an interview? Is there a 

5 difference in your practice? 

6 A. Well, this is not something that I 

7 would do -- I don't consider this a clinical 

8 examination. 

9 Q. Okay. So this isn't how you would 

10 typically diagnose tinnitus in this way; 

11 correct? 

12 

13 

14 

A. 

A. 

I did not 

MR. BAUER: Objection, form. 

I did not feel like my role here was 

15 to diagnose tinnitus. 

16 Q. Okay. Was your telehealth visit, was 

17 that the first time you ever spoke with the 

18 plaintiff? 

19 

20 

A. Well, again, I'm not calling this a 

telehealth visit. This is something I did to 

21 interview her with respect to this case. 

22 Q. Well, that's fair. Was that 

23 interview, then, the first time you've ever 

24 spoken with the plaintiff? 

25 A. Yes, it was. 

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Richard S. Tyler, Ph.D. 

1 

2 

3 

A. 

MR. OLSON: Okay. Josh, it's 

MR. BAUER: Objection, form. 

That's correct, yes. 

4 been about 55 minutes, and I'm going to change 

5 subjects. Is this a good time to take like a 

6 five-minute break? 

7 

8 

MR. BAUER: Sure. 

MR. OLSON: All right. Then 

9 let's take five minutes. 

10 MR. BAUER: Before we go off the 

11 record, I just to want clarify, is it 3M's 

12 position that Document 3072 doesn't apply and 

13 we're going to start asking about the drafting 

14 of expert reports? 

15 Because there have been several 

16 typos in you-all's reports that I haven't 

17 gotten into. So I just want to know what your 

18 position is on that. 

19 

20 okay. Let's 

21 MR. BAUER: 

Josh, I'll -- 

No, no, no. We're 

MR. OLSON: No. 

22 going to do this on the record. I want to know 

23 from you whether or not that document still 

24 applies in your opinion. 

25 MR. OLSON: It does apply. And 

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Richards� Tyler, Ph.D. 

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 

5 

A. 

Q. All right. Thank you. Doctor Tyler, 

That's correct, yes. 

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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Richard S. Tyler, Ph.D. 

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 

6 

7 

Q. 

A. 

Q. 

You didn't of this plaintiff; correct? 

No, I did not. 

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 

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Richard S. Tyler, Ph.D. 

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 

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

MR. BAUER: Objection, form. 

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 

16 

A. 

Q. 

Yes, I can agree with that. 

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 

20 A. 

MR. BAUER: Objection, form. 

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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Richard S. Tyler, Ph.D. 

1 above the hearing loss. 

2 And in addition to the hearing 

3 issues then, these things can also get in the 

4 way with your thoughts and emotions, your 

5 concentration, and your sleep ability. 

6 Q. Okay. So when you use the phrase 

7 "related injuries," you're sort of talking 

8 about that sort of -- the sequelae that could 

9 come from the tinnitus and hyperacusis that 

10 you're discussing; is that fair? 

11 

12 

A. That's fair, yes. 

MR. OLSON: All right. I'm 

13 going to bring up another document here. Give 

14 me just a second to find this. This will be -- 

15 I believe I'm on Exhibit 3, Madam Court 

16 Reporter. 

17 (Exhibit No. 3 was marked for 

18 identification by the reporter.) 

19 MR. OLSON: This is going to be 

20 Roper Amended Objections and Responses to 

21 Defendant 3M's Amended First Set of 

22 Interrogatories to Plaintiff. 

23 

24 

Q. And let me see if I can get my screen 

to share here again. Let me know if you see 

25 that. 

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Richard S. Tyler, Ph.D. 

1 Earplugs or CAEv2s, I'll be referring to the 

2 Combat Arms Earplugs Version 2; is that fair? 

3 

4 

A. 

Q. 

Yes, that's fair. 

Okay. Hopefully that will streamline 

5 my questions a little bit at least. 

6 So do you recall what firearms 

7 the plaintiff used while at the gun range in 

8 the military? 

9 

10 

A. 

Q. 

No, I do not have that memorized. 

You reviewed the plaintiff's 

11 deposition in this case; correct? 

12 

13 

A. 

Q. 

I did, yes. 

I can reference to you that she named 

14 the M16 rifle and the M9 pistol. Does that 

15 sound correct? 

16 

17 

A. 

Q. 

That sounds correct, yes. 

Do you know the noise emission of the 

18 M16 rifle? 

19 

20 

A. 

Q. 

I don't have that memorized, no. 

Does it sound correct that it would be 

21 somewhere around 162 decibels for the muzzle 

22 blast? 

23 

24 A. 

MR. BAUER: Objection, form. 

Well, that's not how sound level is 

25 measured, so I guess I'm going to say that I 

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Richard S. Tyler, Ph.D. 

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 

5 

A. 

Q. 

Yes. Likely an impulsive noise, yes. 

I can stipulate to that for these 

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

7 

8 

A. 

Q. 

That's correct, yes. 

Okay. Do you know how often the 

9 plaintiff would train with these firearms? 

10 

11 

A. 

Q. 

No, I do not. 

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 

22 

A. 

Q. 

Yes, I agree with that. 

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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Richard S. Tyler, Ph.D. 

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 

9 

A. 

Q. 

That's correct, yes. 

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 

16 A. 

MR. BAUER: Objection, form. 

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 

2 3 earplugs? 

24 

25 A. 

MR. BAUER: Objection, form. 

Well, as I said, I'm not aware that 

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1 A. 

Richard S. Tyler, Ph.D. 

Well, I'm not sure that they're 

2 available because there's no other concerns 

3 from other companies. 

4 Q. But you haven't reviewed those 

5 documents; correct? 

6 

7 answered. 

MR. BAUER: Objection, asked and 

8 A. I'm not sure there are any other 

9 documents. 

10 

11 

Q. 

for the record. 

I need a yes or no answer 

I understand where you're 

I'm sorry. 

12 going, but I really would like -- if the answer 

13 is no, you haven't reviewed those documents, 

14 then I think it's easy to say no. 

15 MR. BAUER: Hold on. Let me 

16 clarify the question just before he answers. 

17 Is your question, has Doctor 

18 Tyler reviewed documents that we don't know 

19 whether they exist for other hearing protection 

20 companies of which have not been recalled, has 

21 he reviewed their internal documents? 

22 

23 

MR. OLSON: 

MR. BAUER: 

Yes. 

Again, one, he's 

24 answered that; two, that has nothing to do with 

25 this lawsuit; and, three -- I don't have a 

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Richard S. Tyler, Ph.D. 

1 relevant time period that she would go to the 

2 range and shoot recreationally as well; is that 

3 correct? 

4 

5 

A. 

Q. 

Yes, that's correct. 

Do you know what hearing protection 

6 devices the plaintiff used when she was 

7 shooting recreationally? 

8 

9 

A. 

Q. 

No, I do not. 

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 

20 

A. 

Q. 

Yes. 

And you're aware that she attended 

21 Atlanta Falcons games; correct? 

22 

23 

A. 

Q. 

Yes. 

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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Richard S. Tyler, Ph.D. 

1 for long periods of time, but it is potentially 

2 damaging noise if it's on all the time on a 

3 regular basis for days and days. 

4 Q. And you're aware that Ms. Roper 

5 attended Atlanta Hawks games with her 

6 ex-husband as well; correct? 

7 

8 

A. 

Q. 

That's correct, yes. 

And, again, I'm not going to get into 

9 the specific decibels because of your prior 

10 answer, but you're aware that inside NBA arenas 

11 it does become extremely loud; correct? 

12 A. Well, again, it depends how you define 

13 "extremely loud," and particularly if you're 

14 sitting close to a band, especially if somebody 

15 is beating on a drum in the band, that would be 

16 potentially damaging. 

17 Simple applause and cheering 

18 and things only when there's a special event 

19 like a goal or something like that, that, 

20 generally speaking, would not be terribly 

21 threatening to your hearing ability. 

22 Q. But you'd agree that at an NBA game 

23 there are moments, for example, when someone 

24 scores a basket or something along those lines 

25 where the noise could become dangerous in 

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1 Q. 

Richard S. Tyler, Ph.D. 

Okay. When plaintiff was deployed to 

2 Iraq, does it sound right for that to be within 

3 the years of 2003 to 2004? 

4 A. I'd have to look at the reports, but 

5 that sounds reasonable. 

6 Q. I can represent to you that that's 

7 what she testified, that it was 2003 to 2004, 

8 but she couldn't remember the months. 

9 A. Okay, that's fine. 

10 Q. What is your understanding of the 

11 plaintiff's job duties while she was deployed 

12 to Iraq? 

13 A. I'd have to go back and review the 

14 records specifically here. 

15 Q. Does it sound right to you that she 

16 was an administrative clerk and a mail clerk 

17 while she was deployed to Iraq with her unit? 

18 

19 

A. 

Q. 

I believe that's correct, yeah. 

I'd be happy to point you to the 

20 deposition, you know, where she says it in the 

21 deposition, but just to move this along. 

22 

23 yes. 

24 

A. 

Q. 

Yeah, that's fine. That rings a bell, 

Okay. And you're aware that she 

25 testified that while she was working in the 

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Richard S. Tyler, Ph.D. 

1 Mr. Lockwood's deposition testimony; is that 

2 correct? 

3 

4 

5 

A. 

Q. Okay. In his testimony and let me 

I 

I don't recall if I did or not. 

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

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 

20 

A. 

Q. 

Okay. 

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 military forklift? 

2 

3 

A. 

Q. 

Yes, I recall that. 

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 

16 

Q. Okay. 

MR. BAUER: I objected on mute. 

17 Sorry. Objection, form. 

18 

19 Q. 

MR. OLSON: Okay. Fair enough. 

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 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 

19 yes. 

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

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

21 question today, do we? 

22 

23 

A. 

Q. 

That's correct, we do not. 

Either for the military or for when 

24 she was shooting recreationally? 

25 A. That's correct, yes. 

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Richard S. Tyler, Ph.D. 

1 

2 

Q. Let's see here. I'm switching 

documents. I accidentally closed your report. 

3 Give me just a second and I can bring that up 

4 as well here. 

5 Okay. Actually, let's see here. 

6 I'm going to -- instead of your report, I'm 

7 going to bring up the plaintiff's deposition 

8 here. 

9 MR. OLSON: This is going to be 

10 Exhibit -- am I on 4 now? 

11 

12 

13 

14 

15 Q. 

MR. BAUER: Yes. 

MR. OLSON: Perfect. 

(Exhibit No. 4 was marked for 

identification by the reporter.) 

All right. And let me make this a 

16 little bit larger for you. 

17 

18 

A. 

Q. 

That's good. Thank you. 

Okay. Perfect. And I'm going to 

19 direct you to page 49, and line 4 through 6 

20 here. 

21 

22 

A. 

Q. 

Okay. 

It states, "What vehicles did you 

2 3 operate?" 

24 "The Humvee and the deuce and a 

25 half, those." 

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Richard S. Tyler, Ph.D. 

1 for example, the speed and the load and things 

2 of that nature; correct? 

3 

4 A. 

MR. BAUER: Objection, form. 

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 

17 

A. 

Q. 

No, I do not. 

Do you know the number of trips the 

18 plaintiff made in the Humvee? 

19 

20 

A. 

Q. 

No, I do not. 

Okay. Do you know whether the 

21 plaintiff wore hearing protection devices every 

22 time that she rode in the Humvee? 

23 

24 

A. 

Q. 

My understanding is that she did not. 

And do you know which hearing 

25 protection device she used when she rode in the 

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Richard S. Tyler, Ph.D. 

1 noises would typically be continuous noise as 

2 opposed to impulsive noise and would highly 

3 depend on the duration. 

4 And, again, if you're exposed 

5 to a noise for eight hours in a factory where 

6 the noise is continuous all the time, that's 

7 more dangerous than if the noise is present for 

8 20 seconds after the fans are cheering for an 

9 event and then the noise is reduced 

10 substantially for ten minutes before the next 

11 event. 

12 So I know that these noises 

13 could be potentially dangerous in sports 

14 events, but generally speaking they're not. 

15 Q. When we're talking about noise-induced 

16 exposure, and you had mentioned earlier, I 

17 believe, that the thresholds for -- correct me 

18 if I'm misstating your testimony here -- that 

19 the thresholds for noise exposure in an 

20 eight-hour day is 85 decibels per OSHA; is that 

21 correct? 

22 

23 

24 

A. 

Q. 

A. 

Well, it would be dBA. 

DBA, excuse me. 

I don't recall explicitly. That 

25 sounds approximately correct. 

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1 Q. 

Richard S. Tyler, Ph.D. 

So, for example, if a person could be 

2 expected to safely be exposed to 85 dBAs over 

3 an eight-hour shift per OSHA, it would be a 

4 substantially shorter amount of time if that 

5 noise dose was at 95 dBAs; correct? 

6 

7 

A. 

Q. 

That's correct, yes. 

And even shorter if it was at 

8 105 dBAs? 

9 

10 

A. 

Q. 

Absolutely, yes. 

And at some point you reach a level 

11 where there is no safe period of time of 

12 exposure; is that fair to say? 

13 A. That's correct, although there is a 

14 lot of individual variability. 

15 Q. Understood. I can completely concede 

16 that. 

17 If the plaintiff were wearing 

18 the Combat Arms Earplugs Version 2 to an 

19 athletic event, would you recommend that she 

20 wear the green end or the yellow end? 

21 

22 A. 

MR. BAUER: Objection, form. 

I haven't memorized which is the one 

23 for the impulsive noises, but, again, so that 

24 would -- 

25 Q. Well, I can represent to you that the 

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Richard S. Tyler, Ph.D. 

1 

2 Q. 

MR. BAUER: Thank you. 

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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Richard S. Tyler, Ph.D. 

1 inadequacy recognized by their internal 

2 engineers because this has been devastating for 

3 people in the military and been devastating 

4 financially for 3M since this thing started. 

5 So I think this is a real major issue that's 

6 going to have an impact on the future. 

7 Q. Just to clarify -- and I don't want 

8 to, you know, misrepresent your testimony. 

9 Your testimony is that, leaving 

10 aside the sort of logical steps that a 

11 manufacturer, you know, would want to ensure 

12 that they don't have a problematic product on 

13 the market, at this point you don't know that 

14 these alternative designs are not problematic; 

15 correct? 

16 

17 A. 

MR. BAUER: Objection, form. 

There's no evidence I've seen that 

18 suggests they're problematic. 

19 MR. OLSON: Okay. Josh, I think 

20 we've been going for about another 55-ish 

21 minutes. Do you want to take another 

22 five-minute break now? 

23 

24 

MR. BAUER: 

MR. OLSON: 

Sure. 

I'll try to find 

25 those two documents that I mentioned and so we 

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3 Answer, "Definitely. So there 

Richard S. Tyler, Ph.D. 

1 that would have exposed Ms. Roper to excessive 

2 levels of noise?" 

4 was several rocket attacks, mortar attacks. 

5 There was small arms fire in -- on that 

6 location. Like, that went for the entire time 

7 that I was there. So it was a multiple -- 

8 multitude" -- excuse me -- "of loud -- incoming 

9 loud booms that we were susceptible to." 

10 And then it says, "Okay. Can 

11 you recall any -- any -- any mortar attacks or 

12 rocket attacks that may have been particularly 

13 close to the mail sorting facility?" 

14 Answer, "There may have been an 

15 incident where a plane was hit that was 

16 actively on the tarmac from a mortar attack." 

17 So, Doctor Tyler, referring to 

18 that testimony related to the noise exposure at 

19 Baghdad Airport, would you describe the 

20 exposure to these type of noise as potentially 

21 hazardous? 

22 

23 A. 

MR. BAUER: Objection, form. 

Well, again, it's really hard to know. 

24 It would depend on, you know, how far the 

25 you know, the incident was from the actual room 

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Richard S. Tyler, Ph.D. 

1 

2 A. 

MR. BAUER: Same objection. 

Well, I tried to consider all of the 

3 noise that she was exposed to. 

4 Q. If you knew that the plaintiff were to 

5 be exposed to this type of noise, would you 

6 recommend that she wear hearing protection 

7 devices? 

8 A. Well, it's not clear how far away she 

9 was from the noise and if the noise was 

10 potentially dangerous. And if it wasn't, then 

11 wearing a hearing protection device might have 

12 impacted her office job, communication. 

13 Q. All right. Let me close out of that. 

14 I'm going to move on. 

15 

16 another document. I'm just going to leave it 

Doctor, I'm going to show you 

17 up on the screen here but just switch over. 

18 This is an audiogram dated 

19 December 3rd of 2009. And do you see that on 

20 the left side here? 

21 

22 

23 Counselor. 

MR. BAUER: You need to mark it, 

A. I do, yes. 

24 MR. OLSON: Oh, sorry. I'll 

25 mark this as Exhibit 6. 

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1 audiogram. 

2 

Richard S. Tyler, Ph.D. 

MR. BAUER: Wait, but just for 

3 my clarification, you're referring to in 2006, 

4 but this is a 2009 document, isn't it? 

5 MR. OLSON: Yep. This is what I 

6 had been thinking of. 

7 

8 

MR. BAUER: 

MR. OLSON: 

Okay. 

I'm clarifying on 

9 the record here that this is the document I was 

10 referring to. So to the extent that I referred 

11 to a different audiogram earlier, I'm going to 

12 move to strike that from the record here. 

13 MR. BAUER: Understood. Thank 

14 you for the clarification. 

15 Q. Doctor Tyler, earlier we discussed 

16 that there are certain ototoxic medications 

17 that can be a factor in tinnitus; correct? 

18 

19 

A. 

Q. 

Correct. 

And in your report you listed a very 

20 large number of medications; correct? 

21 A. Correct. 

22 Q. Just a second here. Let me stop 

23 sharing my screen here for a moment. I'll find 

24 your report here again. I've got too many 

25 windows open. Again, my apologies. 

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1 bit further, you see where it says ibuprofen on 

2 your list here? 

3 

4 

A. 

Q. 

I do, yes. 

And then also over on this other side 

5 it says naproxen; correct? 

6 

7 

A. 

Q. 

Yes. 

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 

14 

A. 

Q. 

I believe that's true. 

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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Richard S. Tyler, Ph.D. 

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 

16 

17 

A. 

A. 

That's correct. 

MR. BAUER: Objection, form. 

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 

24 

Q. And just to clarify maybe this is a 

question for Josh. There is no hearing loss 

25 claim here, correct, in this case? 

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1 Q. 

Richard S. Tyler, Ph.D. 

Doctor, do you recall when the 

2 plaintiff's tinnitus began? 

3 A. No, I do not. 

4 Q. I can report that -- I can represent 

5 to you that the plaintiff reported that it 

6 began in around 2015, I believe, and then it's 

7 reflected in the medical records on July 7th of 

8 2017. 

9 Does that sound correct? 

10 

11 

A. 

Q. 

Yes, it does. 

Okay. And isn't it true that the 

12 plaintiff denied tinnitus in her medical 

13 records on a number of occasions surrounding 

14 that time? 

15 

16 

A. 

Q. 

Yes, that's true. 

Leaving aside the DME results from 

17 earlier this year, do you have any objective 

18 basis to confirm plaintiff's tinnitus? 

19 

20 

21 

A. 

A. 

No. 

MR. BAUER: Objection, form. 

There's no objective test for 

22 tinnitus. 

23 Q. That's because it's a subjective 

24 report; correct? 

25 A. That's correct, yes. 

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1 tinnitus, understanding that there's no -- at 

2 this point I don't believe there's a documented 

3 cure for tinnitus. 

4 A. There's no documented cure, that's for 

5 sure. 

6 Q. But there are various mechanisms that 

7 can be used to address that tinnitus; correct? 

8 

9 A. 

MR. BAUER: Objection, form. 

There are several counseling and sound 

10 therapy strategies which have been shown to be 

11 helpful for some patients. 

12 Q. Okay. For your opinion today where 

13 you have stated to a reasonable degree of 

14 medical certainty that the Combat Arms Earplugs 

15 are the cause of the plaintiff's tinnitus and 

16 hyperacusis, you ruled out civilian noise 

17 exposure; correct? 

18 A. Well, that's a potential factor, but 

19 my understanding was I only had to propose an 

20 opinion of 51 percent certainty. 

21 Q. Okay. And, similarly, you ruled out 

22 hearing loss that could have occurred -- excuse 

23 me -- tinnitus that could have been the result 

24 of a noise exposure while the plaintiff was 

25 using other hearing protection in the military; 

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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 

12 Q. 

MR. OLSON: Absolutely. 

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 

24 

A. 

Q. 

I can now, yes. 

Perfect. On page 90, line 18 here, 

25 the question starts, "Are you experiencing 

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1 sensorineural tinnitus? 

2 A. It's not typical, but I have seen it. 

3 Again, it's difficult for people to explain it 

4 to other people that don't have it, so it can 

5 be complicated in some people to try and 

6 explain what it sounds like to others. And it 

7 doesn't have to sound like a pure tone, and if 

8 it comes and goes, it can be complicated to 

9 explain. 

10 Q. Okay. Is it more common to have this 

11 type of description of pressure or itch, pain 

12 when it comes to somatic or somatosensory 

13 tinnitus? 

14 A. So I guess I don't know the answer to 

15 that. You know, as I said, the somatosensory 

16 tinnitus there's not as much known about it, 

17 and I'm not sure -- I know that the most 

18 important definition is that it can be 

19 influenced by, as I said, movement and pressure 

20 and touch on the head and face, but I don't 

21 know that I don't have memorized the 

22 specifics about how it's defined, described 

23 differently, if it is. 

24 Q. All right. When it comes to 

25 arthralgia of bilateral TMJ -- I'll just use 

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1 exposure and consistent with noise-induced 

2 tinnitus and not some temporomandibular joint 

3 cause of tinnitus or hyperacusis. 

4 Q. Did you consider and rule out the 

5 plaintiff's major depressive disorder as a 

6 cause or contributing factor to her tinnitus? 

7 

8 

A. 

Q. Okay. So that's a yes, you ruled that 

Depression does not cause tinnitus. 

9 out? 

10 

11 

A. 

Q. 

I did, yes. 

Okay. What about the plaintiff's 

12 history of migraines? 

13 A. Migraines does not cause tinnitus. 

14 There might be a symptom affecting your 

15 auditory system and your brain in general that 

16 causes both migraines and tinnitus, but 

17 migraines themselves don't cause tinnitus. 

18 Q. Okay. How about, are you aware that 

19 the plaintiff has sleep apnea? 

20 

21 

A. 

Q. 

I am, yes. 

And you're aware that the plaintiff 

22 has not consistently treated her sleep apnea 

23 with a CPAP machine? 

24 A. I don't know a lot about sleep apnea. 

25 Talking to some patients, I know they don't 

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1 Q. 

Richard S. Tyler, Ph.D. 

Okay. And then the plaintiff was also 

2 involved in a car accident, I believe, in 

3 around 2017. Do you recall that? 

4 

5 

A. 

Q. 

I do, yes. 

Are you aware of whether the air bag 

6 went off in that collision? 

7 

8 

A. 

Q. 

I forget at this point. 

If an air bag were to deploy in a car, 

9 could that cause hearing damage, including 

10 tinnitus? 

11 

12 A. 

MR. BAUER: Objection, form. 

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 the reports that I heard from her -- 

2 

3 

4 

Q. 

A. 

Q. I apologize. I didn't mean to 

And -- 

-- were consistent with hyperacusis. 

5 interrupt you there. 

6 What type of hyperacusis have 

7 you diagnosed the plaintiff with, cochlear or 

8 vestibular? 

9 

10 A. 

MR. BAUER: Objection, form. 

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 

22 

A. 

Q. 

I am not aware, actually. 

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 was a relationship like that in some clients. 

2 Q. Have you eliminated TMJ dysfunction as 

3 a potential cause or contributing factor to the 

4 plaintiff's hyperacusis? 

5 

6 A. 

MR. BAUER: Objection, form. 

Well, it might have contributed to it, 

7 but, again, one of the most common causes is 

8 noise exposure. 

9 Q. Okay. And there's also an association 

10 between PTSD and hyperacusis; is that correct? 

11 

12 A. 

MR. BAUER: Objection, form. 

Well, again, posttraumatic stress 

13 disorder implies that somebody has witnessed or 

14 been involved in a trauma of some sort, and 

15 that trauma might have been an explosion, you 

16 know, a gun going off or seeing somebody else 

17 and that might result in tinnitus, hyperacusis, 

18 and might involve a result of stress just from 

19 watching somebody else being injured, so those 

20 things certainly can be related to each other. 

21 Q. Okay. And then I think I know your 

22 answer, but the same question with respect to 

23 the major depressive disorder that the 

24 plaintiff has been diagnosed with. 

25 A. Yeah, well -- 

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1 

2 

3 

4 

5 

6 

7 

8 

Q. 

Richard S. Tyler, Ph.D. 

Doctor Tyler, I just have a couple 

I'm going to 

I think I may be ready to wrap up here. 

MR. BAUER: Sure. We can go off 

the record. 

MR. OLSON: Okay. Let's go off 

the record for a couple minutes here. 

(A recess was taken.) 

more questions to wrap up here. 

9 share my screen hopefully just one more time. 

10 Let me know when you see that. 

11 

12 

A. 

Q. 

I see it. 

This is, for the record, Exhibit 2, 

13 the plaintiff's amended report, on page 11 of 

14 the case-specific report. 

15 Does that seem correct to you, 

16 Doctor Tyler? 

17 

18 

A. 

Q. 

Yes. 

Okay. And I'm just referring -- so we 

19 talked for a while about ototoxic medication, 

20 and you state here in that that, "She has no 

21 significant use of ototoxic medications that 

22 contributed to her tinnitus or hyperacusis." 

23 Is that still your opinion after 

24 our discussion? 

25 A. Well, yeah. As I said, you know, I 

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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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Richard S. Tyler, Ph.D. 

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 

23 questions. 

MR. BAUER: I have a few 

Can you stop sharing your screen, 

24 please? 

25 MR. OLSON: I absolutely can. 

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Richard S. Tyler, Ph.D. 

1 

2 

3 

A. 

Q. 

page 97. The question is, "Okay. Is there any 

I do, yes. 

And then we go down to line 24 on 

4 ringing or like a high-pitched noise or buzzing 

5 in your ear" -- and we go onto page 98 -- 

6 "associated with it?" 

7 

8 Question, "Okay. Has that 

Answer, "Sometimes ringing." 

9 occurred in both ears or just one?" 

10 

11 

Answer, "Both." 

Question, "How would you 

12 describe the ringing?" 

13 Answer, "Almost like if somebody 

14 is ringing a bell standing next to me." 

15 Do you see where I was reading 

16 from? 

17 

18 

A. 

Q. 

Yes, I do. 

In your opinion, does that comport 

19 more with sensorineural tinnitus? 

20 A. Absolutely. It's more much probable 

21 to experience a ringing. 

22 Q. And that type of ringing would not be 

23 associated with something like somatic 

24 tinnitus; true? 

25 A. That's correct, yes. 

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1 

2 

A. 

Q. 

Richard S. Tyler, Ph.D. 

Yes. 

And do you consider those foam 

3 earplugs to be a safer alternative than the 

4 Combat Arms Earplugs? 

5 

6 

A. 

Q. 

Absolutely, yes. I use them myself. 

Okay. And are you familiar with 

7 triple-flange hearing protection? 

8 

9 

A. 

Q. 

I am, yes. 

And do you know whether or not 

10 triple-flange hearing protection was given to 

11 members of the military on a regular basis? 

12 

13 

A. 

Q. 

I think it was, yes. 

Okay. And would you consider 

14 triple-flange hearing protection to be a safer 

15 alternative to the Combat Arms Earplugs? 

16 

17 

A. 

Q. 

Absolutely, yes. 

Okay. And are you familiar with the 

18 Peltor tactical communication headset that was 

19 given to soldiers in the military? 

20 

21 

A. 

Q. 

I am, yes. 

And does it comport with your 

22 understanding that the defendants in this case 

23 make the Peltor hearing protection device? 

24 

25 

A. 

Q. 

That's correct, yes. 

Would you consider the Peltor hearing 

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1 contributed to her tinnitus or hyperacusis." 

2 You were asked about that 

3 previously; right? 

4 

5 

A. 

Q. 

Correct. 

And it would be more accurate to say 

6 she has no other health condition that could 

7 have caused her tinnitus or hyperacusis; true? 

8 A. That's correct. It should have said 

9 "caused." 

10 Q. All right. So do you plan on 

11 correcting that in an amended report, to 

12 correct both that and the use of Ms. Jumanah at 

13 the top? 

14 

15 

A. Yes, I do. 

MR. BAUER: Okay. No further 

16 questions. Pass the witness. 

17 MR. OLSON: Sorry. For some 

18 reason, Josh, I objected to form on the last 

19 one. I just couldn't get unmuted for some 

20 reason, like the mute button was below the 

21 bottom of my screen or something. I just 

22 wanted to put that on the record. 

23 I just have, I think, a 

24 couple of -- just a couple very quick 

25 questions. 

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1 

2 

Richard S. Tyler, Ph.D. 

"Maybe five at most." 

Question, "I was about to say, 

3 that feels like an unfair question for a mom 

4 with three boys in the house (audio distortion) 

5 teenager. Okay. Is that more or less sleep 

6 than you were getting in about 2014, 2015?" 

7 

8 

Answer, "It's about the same." 

Doctor, did I read it more or 

9 less correctly? I think I stumbled once. 

10 A. Well, yes, but I'll say that, you 

11 know, you're going back asking her things from 

12 several years ago, and she did say it was 

13 about, you know, about the same. So it's an 

14 approximation on her part. 

15 Q. Just based on the documents that 

16 you've reviewed, the plaintiff first reported 

17 experiencing tinnitus in 2014 or 2015 and first 

18 reported it to her physician in 2017; is that 

19 correct? 

20 

21 

A. 

Q. 

That's correct, yes. 

And so despite -- let's go on and look 

22 at the top of page 108 here, and "Is that," 

23 referring back to if she was getting sleep, 

24 "impacted in any way by your tinnitus, or is 

25 that just sort of the sleep pattern you are 

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1 MR. BAUER: Okay. I don't think 

2 I get to go again if I wanted to. 

3 MR. OLSON: All right. Then, 

4 Doctor Tyler, I think that's it. Josh, do you 

5 mind if I ask just one wrapping up question? 

6 

7 Q. 

MR. BAUER: Go for it. 

(By Mr. Olson) Doctor Tyler, have you 

8 been able to hear all of the questions that 

9 I've asked today? 

10 

11 

A. 

Q. 

I have, yes. 

And you don't have any answers that 

12 you've made that you feel the need -- you feel 

13 like you'd like to clarify at this point; 

14 correct? 

15 

16 

A. That's correct. 

MR. OLSON: All right. That's 

17 all I've got. Thanks, Josh. I missed that 

18 before I passed the first time. 

19 MR. BAUER: No problem. Let's 

20 go off the record. 

21 (Deposition concluded at 12:05 p.m.) 

22 (UNLESS OTHERWISE DIRECTED BY 

COUNSEL OR THE PARTIES HERETO, THE STENOGRAPHIC 

23 NOTES FOR THE FOREGOING DEPOSITION SHALL BE 

DESTROYED AFTER A PERIOD OF 3 YEARS FROM THE 

24 DATE OF TAKING OF SAID DEPOSITION.) 

25 

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