EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 1 of 24
Preserved Objections Previous Rulings New Objections Rulings

7:18 - 9:23 Murphy, William (2021-01-15) 3:50

7:18 Q. Good afternoon, Dr. Murphy. My

7:19 name is Nick Wasdin, and I represent 3M in this

7:20 litigation. Can you start by introducing

7:21 yourself, tell us who you are and where you

7:22 work?

7:23 A. My name is William Murphy, and I

8:01 work for the National Institute for

8:02 Occupational Safety and Health. I'm in the

8:03 division of field studies and engineering. And

8:04 I'm in the engineering physical hazards branch

8:05 and in the noise and bioacoustics team. I've

8:06 been working at NIOSH since December of 1992.

8:07 And my current position is as the coordinator

8:08 for the hearing loss prevention research

8:09 program within the National Institute for

8:10 Occupational Safety and Health. And I've been

8:11 doing that job for the last five years.

8:12 Q. Can you give us an overview of

8:13 your education prior to joining NIOSH?

8:14 A. Sure. I completed a bachelor's

8:15 degree in 1982 in physics at Iowa State

8:16 University. I continued at Iowa State and

8:17 completed a master's degree in physics -- in

8:18 solid state physics at Iowa State University in

8:19 1984. I then applied for and went to

8:20 Purdue University to study for my doctorate in

8:21 physics. That was completed in 1992.

8:22 The emphasis area in my research was --

8:23 well, specialized in hearing science, cochlear

9:01 modeling, and measurement of otoacoustic

9:02 emissions, which are sounds produced by the

9:03 inner ear and measured in the ear canal. And

9:04 then I was hired by National Institute for

9:05 Occupational Safety and Health in -- June 26 of

9:06 1992 is when I was offered my job. And then I

9:07 was told I needed to show up there by

9:08 December 14 of 1992. So December 14 is when I

9:09 started with NIOSH after I had finished and

9:10 defended my dissertation work at Purdue. And I

9:11 have been with NIOSH ever since.

9:12 Q. Okay.

9:13 A. I've -- in 2012 -- well, starting

9:14 in 2000 and finishing in 2012, I completed a

9:15 master's degree -- master's of engineering

9:16 degree in acoustics at Penn State University in

9:17 the graduate program for acoustics.

9:18 Q. Has your work as NIOSH included

9:19 researching and testing hearing protection

9:20 devices?

9:21 A. Yes.

9:22 Q. What type of testing have you done

9:23 on hearing protection devices?

Designations

Page 1 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 2 of 24
10:08 - 11:10 Murphy, William (2021-01-15) 2:53

10:08 A. The work that we've done has been

10:09 both physical acoustics measurements and with

10:10 human subject measurements. And -- I'm sorry.

10:11 I'm trying to finish one thing that somebody is

10:12 asking me about and I need to get back to her.

10:13 It should be -- all right. So there is -- at

10:14 NIOSH we have a testing laboratory for human

10:15 subjects to conduct what's called real ear

10:16 attenuation and threshold measurements, which

10:17 are the standard type measurements that are --

10:18 that are done for determining the noise

10:19 reduction rating for hearing protection

10:20 devices.

10:21 We also have the facilities to do physical

10:22 acoustic measurements of attenuation of hearing

10:23 protection devices, both with continuous noise

11:01 sounds and with impulsive noise sounds. And

11:02 that -- I think that answers your question.

11:03 Q. When did you first become aware of

11:04 the Combat Arms Earplug?

11:05 A. Let me think. I -- I think when I

11:06 first became aware of it was around 2001. We

11:07 purchased an acoustic test fixture in 2000, I

11:08 think. And it was delivered in September of

11:09 2001. And we did our first tests with that

11:10 fixture with earplugs in 2001.

12:15 - 13:09 Murphy, William (2021-01-15) 1:57

12:15 Q. (Mr. Wasdin) Dr. Murphy, I heard

12:16 your last answer cut out on me. But I asked

12:17 when you first became aware of the Combat Arms,

12:18 and I think you were describing your purchase

12:19 of an acoustical test fixture.

12:20 A. Yes. The reason I -- I can't peg

12:21 or pin down exactly when I became aware of the

12:22 Combat Arms Earplug was that the company or the

12:23 organization that we purchased the acoustical

13:01 test fixture from was the French German

13:02 Research Institute of Saint Louis. And they

13:03 are also the ones who invented the filter that

13:04 is used in the Combat Arms Earplug. So we

13:05 became aware of that. The first time that I

13:06 ever did any measurements with the Combat Arms

13:07 Earplug with that filter was in 2001.

13:08 Q. Okay. And what type of acoustical

13:09 test fixture did NIOSH have at that time?

13:11 - 13:15 Murphy, William (2021-01-15) 0:12

13:11 A. It's the one that we purchased --

13:12 we purchased it from the French German Research

13:13 Institute of Saint Louis.

13:14 Q. Is it a mannequin of some sort?

Page 2 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 3 of 24
13:15 A. Yes.

14:08 - 14:16 Murphy, William (2021-01-15) 0:22

14:08 Q. All right. Dr. Murphy, this, I

14:09 believe, will take the number Exhibit 1 to your

14:10 deposition. And it is an e-mail from you to

14:11 some other folks dated 10/23/2001 with the

14:12 subject line of impulse peak levels. Do you

14:13 see that?

14:14 (Defendant's Exhibit Number 1

14:15 is marked for identification.)

14:16 A. Yes.

14:17 - 15:22 Murphy, William (2021-01-15) 2:39

14:17 Q. What is the -- what does this

14:18 e-mail contain within itself?

14:19 A. It contains -- well, the data

14:20 columns that are there are describing the

14:21 firearm that was used, whether it was a nine

14:22 millimeter pistol. I'd have to go back and

14:23 look to see exactly what pistol it was. But I

15:01 want to say it was a Sig Sauer pistol and a

15:02 Colt AR-15 which is a surrogate for the M-16

15:03 rifle.

15:04 And it describes in the second column of the

15:05 dataset there the different types of hearing

15:06 protection devices that were tested. There are

15:07 a variety of earplugs. There are a variety of

15:08 electronic hearing protectors. It describes

15:09 whether the hearing protector was electronic or

15:10 whether it was just turned off. It describes

15:11 whether the protector was nonlinear. And then

15:12 it tells us the peak level, the sound pressure

15:13 level of the impulse that was measured close to

15:14 the mannequin, about four inches from the right

15:15 ear of the mannequin, which was about six feet

15:16 of the left of the person who was doing the

15:17 shooting. It describes the peak level inside

15:18 of the mannequin's ear canal, so measured

15:19 approximately at the location of the tympanic

15:20 membrane. And it describes the difference, the

15:21 attenuation, between the outside and inside

15:22 measurement.

16:13 - 17:20 Murphy, William (2021-01-15) 2:55

16:13 Q. One of the earplugs or hearing

16:14 protection devices that was tested included the

16:15 Combat Arms Version II. Is that right?

16:16 A. Yes. Yes. There are eight lines

16:17 in this that have CAELin, CAELin2, CAENLin and

16:18 CAENLin2. There are four lines for the nine

16:19 millimeter, and there are four lines for the

16:20 M-16.

16:21 Q. What was the purpose of this

Page 3 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 4 of 24
16:22 testing? Why was it done?

16:23 A. Well, the question that was of

17:01 interest to me as a researcher in hearing, in

17:02 hearing science, is whether or not the impulse

17:03 would be attenuated sufficiently fast to, you

17:04 know, not prevent or not present a damage risk

17:05 to the persons who were wearing these hearing

17:06 protection devices.

17:07 In particular I was concerned about the

17:08 electronic devices, whether or not they would

17:09 be cutting out sound quickly enough and -- and

17:10 just trying to understand what it is that we

17:11 can know about the hearing protection devices.

17:12 The Combat Arms Earplugs -- and then there's

17:13 another one that's listed in there called

17:14 ISLNLin and ISLNLin2. Those are using the same

17:15 filter that's in the Combat Arms Earplug. And

17:16 the way that those filters operate is based on

17:17 physical acoustic principles where the acoustic

17:18 resistance of -- the pressure -- the resistance

17:19 to sound going through that small orifice acts

17:20 almost immediately.

18:03 - 19:04 Murphy, William (2021-01-15) 1:27

18:03 Q. Okay. Was this testing performed

18:04 on the ISL mannequin that you described

18:05 earlier?

18:06 A. It was performed on an ISL

18:07 mannequin that was built in the year 2000.

18:08 Q. Can you describe for us what the

18:09 ear and ear canal anatomy is on that mannequin?

18:10 A. The ear canal on this particular

18:11 mannequin, I want to say it was about eight

18:12 millimeters or -- I'd have to go back and look

18:13 at my records. But I think it was around eight

18:14 to nine millimeters in length. It was a rubber

18:15 ear canal insert that attaches to the lateral

18:16 end of the middle ear simulator. In this case

18:17 it was one that was built by Bruel and Kjaer

18:18 Corporation.

18:19 And that ear canal simulator is mounted

18:20 inside of a solid acrylic head. And it is

18:21 isolated in two different ways. There's a

18:22 casing inside of this acrylic head in which the

18:23 preamplifier and the ear simulator are mounted.

19:01 And those provide shock isolation for the

19:02 purpose of being able to use these with very

19:03 high level impulses such as blast noise from

19:04 explosions and the like.

19:05 - 24:17 Murphy, William (2021-01-15) 7:59

19:05 Q. How was the Combat Arms Version II Re: [19:05 to 24:17] Re: [19:05 to 24:17]

19:06 plug that you tested inserted into the ear Pltf Obj 402, 403, cumulative OVERRULED

19:07 canal on the mannequin?

Page 4 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 5 of 24
19:08 A. Well, the ear canal is a straight

19:09 cylinder. So as you insert the earplug,

19:10 because this ear canal had only about eight or

19:11 nine millimeters, if I recall correctly, of

19:12 length, you could only be assured that you were

19:13 getting full contact of the first flange and

19:14 the second flange of the Combat Arms Earplug

19:15 with the walls of the ear canal. The third

19:16 flange of the earplug makes contact with the

19:17 lateralmost edge of the ear canal. But it

19:18 isn't inserted fully like you would have on

19:19 a -- if you were to insert it in a -- in a real

19:20 human ear or in -- there's another ear canal

19:21 that we -- or another acoustic test fixture

19:22 that we did.

19:23 And I guess we'll get to it in the other --

20:01 other documents that were submitted. But it's

20:02 a longer ear canal. And it's more conformal to

20:03 the shape of a -- a regular human ear canal.

20:04 Q. What steps were you able to take

20:05 on this first mannequin in 2001 to ensure that

20:06 you were getting a good fit or seal with the

20:07 earplug?

20:08 A. In the case of the Combat Arms

20:09 Earplug as well as in the other earplug that

20:10 is -- well, the other earplugs that are in

20:11 these measurements, we inserted them to the

20:12 full depth of the mannequin's ear canal. The

20:13 ear simulator -- the middle ear simulator has a

20:14 grid that is about four millimeters in front of

20:15 the diaphragm of the microphone that's doing

20:16 the sensing of the sound. And so you can push

20:17 the ear canal -- you can push the earplug all

20:18 the way into the ear canal and not worry about

20:19 contacting the diaphragm of the microphone and

20:20 destroying the microphone.

20:21 Q. Did you need to fold back the

20:22 flanges --

20:23 A. No.

21:01 Q. -- on the opposite end of the plug

21:02 to get a good fit?

21:03 A. No.

21:04 Q. So all of this testing, at least

21:05 in 2001, was done without folding the flanges

21:06 back?

21:07 A. Correct.

21:08 Q. Can you tell looking at Exhibit 1

21:09 here what type of attenuation -- let's start

21:10 with the green end of the Combat Arms, was

21:11 providing?

21:12 A. Sure. The green end of the Combat

21:13 Arms is the CAELin and the CAELin2. And as we

21:14 look at this, it is lines three and four of the

21:15 data. And the last number in those lines is

Page 5 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 6 of 24
21:16 28.78 and 28.83. And if you go down a little

21:17 further to where the M16 has the same CAELin

21:18 and CAELin2, we find that the values there are

21:19 28.28 and 28.86.

21:20 So it's -- it's providing -- and there needs

21:21 to be perhaps a distinction between what I'm

21:22 calling attenuation, at least in this e-mail at

21:23 that time, and making a comparison to something

22:01 like noise reduction rating. Noise reduction

22:02 rating is measured with the subject's ear.

22:03 You're making a measurement of -- of detecting

22:04 sound with the ear open and then with the ear

22:05 occluded with an earplug. And in this case

22:06 we're making a measurement between the

22:07 microphone that is outside of the ear and the

22:08 microphone that is at the location of the --

22:09 the tympanic membrane or nominally surrogate

22:10 for the tympanic membrane. And the difference

22:11 between the outside microphone and the inside

22:12 microphone is going to be slightly different

22:13 and slightly affected due to resonance effects

22:14 of the outer and middle ear that a human would

22:15 experience.

22:16 Q. So I think to sort of try to

22:17 summarize this as best I understand it, for

22:18 both the nine millimeter handgun that was fired

22:19 as well as the M16 surrogate rifle, the green

22:20 end of the Combat Arms was providing

22:21 approximately 28 dB of attenuation from the --

22:22 A. Correct.

22:23 Q. -- outside inside of the earplug?

23:01 A. Correct.

23:02 Q. Okay. And then what about the

23:03 yellow end, how did that side perform?

23:04 A. The yellow end are the next two

23:05 lines, so lines 5 and 6. And we see there

23:06 28.18 and 26.68 for the nine millimeter rounds.

23:07 And for the M16 we're seeing 25.07 and 25.73

23:08 for the -- I'm going to call this the impulse

23:09 noise reduction or the peak noise reduction

23:10 that we're seeing. In the e-mail I called it

23:11 attenuation. But I think the correct term to

23:12 use is noise reduction.

23:13 Q. Okay. You mentioned earlier that

23:14 one of these other hearing protection devices

23:15 that are listed in this -- these rows of data

23:16 also used the same ISL nonlinear filter. Is

23:17 that right?

23:18 A. Yes.

23:19 Q. Which -- sorry, sir.

23:20 A. There's -- well, there's the

23:21 ISLNLin and the ISLNLin2.

23:22 Q. What plug was that?

23:23 A. It is -- so when -- I'm trying to

Page 6 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 7 of 24
24:01 remember who it is. I think it was Aearo at

24:02 the time, that they made a -- they licensed the

24:03 product, this filter from the French German

24:04 Research Institute de Saint Louis. But the

24:05 French Army was using -- and you'll see it up

24:06 here in the -- in the body of the e-mail. It

24:07 describes here ISLNLin and NLin2 are the Bilsom

24:08 656/ISL nonlinear plug. And the French Army

24:09 had access to this filter. And they use it in

24:10 the French Army. I don't know if Bilsom still

24:11 makes this product. I don't think that they

24:12 do. Well, Bilsom is no longer -- they're now a

24:13 part of Honeywell.

24:14 Q. Is Bilsom, or at least were they

24:15 at the time, a different manufacturer of

24:16 hearing protection?

24:17 A. Yes.

29:14 - 29:20 Murphy, William (2021-01-15) 0:24

29:14 Q. Okay. Going back to Exhibit 1, Re: [29:14 to 29:20] Re: [29:14 to 29:20]

29:15 the October 2001 testing that we were just Pltf Obj cumulative OVERRULED

29:16 talking about, I was asking you how did the

29:17 results that you achieved with the Combat Arms

29:18 Version II Earplug compare to the results that

29:19 you achieved with the Bilsom earplug that had

29:20 the ISL filter in it?

30:05 - 30:18 Murphy, William (2021-01-15) 1:53

30:05 A. I'm hearing nothing from the Re: [30:05 to 30:18] Re: [30:05 to 30:18]

30:06 attorney. As you look at this measurement of Pltf Obj cumulative, G7 OVERRULED

30:07 attenuation, what you'll note is for the

30:08 ISLNLin and NLin2, the attenuation was

30:09 approximately 16.41 and 17.34. And for the M16

30:10 rifle, it was 15.9 and 17.81. So approximately

30:11 ten decibels less.

30:12 Now, the reason, I think, is that the flange

30:13 structure of the ISL or what is the Bilsom 656

30:14 earplug, the third flange does not make contact

30:15 at all with the ear canal. So when you insert

30:16 it, you only have contact with the first two

30:17 flanges of that earplug and not the third

30:18 flange.

31:01 - 33:09 Murphy, William (2021-01-15) 3:48

31:01 Q. Dr. Murphy, turning your attention

31:02 from the results of your testing to the

31:03 distribution on the e-mail, can you tell me who

31:04 it was by looking at the to and CC lines that

31:05 you were sharing this data with?

31:06 A. What do you mean who? Do you want

31:07 me to tell you who all the persons are?

31:08 Q. Yes, sir.

31:09 A. Okay. Elliott Berger at that time

31:10 was worker for Aearo EAR. Vern Larson was an

Page 7 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 8 of 24
31:11 employee of Bacou-Dalloz. At that particular

31:12 time, Bacou-Dalloz had purchased Bilsom

31:13 Corporation. They were still selling product

31:14 as Bilsom. Per -- Vern Larson worked in

31:15 San Diego at what is now the Honeywell

31:16 headquarters -- well, their hearing protection

31:17 labs in the U.S. Per Hiselius was working in

31:18 Billesholm, Sweden, and he was an employee of

31:19 Dalloz Safety.

31:20 Armand Dancer is a research physiologist and

31:21 medical physician with the French German

31:22 Research Institute de Saint Louis. Dr. Douglas

31:23 Ohlin was at that time part of the Centers for

32:01 Health Promotion and Preventive Medicine at

32:02 Aberdeen Proving Grounds Edgewood Campus. And

32:03 Dr. John Franks is -- at that time he was my

32:04 supervisor. And Mark Little -- Major Mark

32:05 Little was a -- what would you call it? I

32:06 guess it was an intern or he was assigned to

32:07 work at NIOSH for a year. And he was, I think,

32:08 towards the beginning of his tenure with us at

32:09 NIOSH.

32:10 Q. Do you recall why you were sending

32:11 this test data to that particular group of

32:12 people?

32:13 A. Because all of the products that

32:14 are listed there are manufactured by persons

32:15 from those companies with the exception of one

32:16 of the products that's there.

32:17 Q. And what about Mr. Doug Ohlin?

32:18 A. Doug Ohlin was in the Army's role

32:19 at the Center for -- CHPPM, Center for Health

32:20 Promotion and Preventive Medicine. And Mark

32:21 Little had been working with Dr. Ohlin. And

32:22 that's as much as I know. So I figured that

32:23 Doug would be interested. Armand Dancer is a

33:01 researcher at ISL. And since they invented the

33:02 earplug filter, I thought it was interesting to

33:03 share these data with him.

33:04 Q. Okay. After the 2001 testing

33:05 that's described in this e-mail, do you recall

33:06 when the next time was that you had an occasion

33:07 to test the Combat Arms Version II?

33:08 MS. SASLAW: And I'm --

33:09 A. May of 2002.

33:11 - 33:12 Murphy, William (2021-01-15) 0:04

33:11 A. It's part of a health hazard

33:12 evaluation that NIOSH did.

33:20 - 35:14 Murphy, William (2021-01-15) 2:11

33:20 Q. Okay. Dr. Murphy, can you tell us

33:21 if you recognize Exhibit 2, and if so, what it

33:22 is?

Page 8 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 9 of 24
33:23 A. Let's see here. Yes. I recognize

34:01 it. It is a presentation that I wrote in

34:02 collaboration with my colleague, Chucri Kardous

34:03 at NIOSH. And it -- as the title says, it

34:04 describes measurements of attenuation of

34:05 nonlinear and linear hearing protection devices

34:06 and impulse noise.

34:07 Q. Is this the testing that you just

34:08 described would have been done in 2002?

34:09 A. Yes.

34:10 Q. Okay. If we turn to the -- well,

34:11 let me ask you before I turn into it, what was

34:12 the occasion for this testing? Why did you do

34:13 it?

34:14 A. The Fort Collins Police Services

34:15 Department contacted NIOSH to request their

34:16 assistance with the evaluation of impulse noise

34:17 and hearing sensitivity, hearing loss --

34:18 actually hyperacusis is the term that -- that

34:19 should be used, for their special weapons and

34:20 assault team, I guess is the proper expanded

34:21 abbreviation for SWAT. They had issued an

34:22 electronic earplug to their officers on the

34:23 SWAT team. And they were concerned that

35:01 several of their officers had developed

35:02 sensitivity to impulse noise and to using that

35:03 particular product. And they asked NIOSH to

35:04 come out and do an evaluation of the noise

35:05 levels and to evaluate that particular earplug

35:06 that they were using. And at the time that we

35:07 did this, I wanted to take and get as many of

35:08 our products that -- many of which you saw in

35:09 the -- in the previous Exhibit 1 or tab one, I

35:10 guess you called it. We wanted to evaluate as

35:11 many of those products as we could in

35:12 collaboration with going out and doing these

35:13 measurements at an indoor as well as an outdoor

35:14 firing range.

35:17 - 39:03 Murphy, William (2021-01-15) 4:07

35:17 Q. And Dr. Murphy, I would ask you

35:18 whether you can tell us what products were

35:19 tested during this 2002 NIOSH testing?

35:20 A. Okay. So there are -- in this

35:21 case the -- there are linear products that are

35:22 described here. And there are nonlinear

35:23 products that are described here. The

36:01 Bilsom 555 is a solid core linear earplug. The

36:02 Bilsom 655 NST -- stands for natural sound

36:03 technology -- is akin to a flat attenuation

36:04 earplug designed for musicians of sorts. The

36:05 EAR Combat Arms Earplug is the CAE Version II.

36:06 The linear side of that is the green side.

36:07 The next two EAR products are the same

Page 9 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 10 of 24
36:08 product. One of them is called HiFi. The

36:09 other is called Ultratech. And they are built

36:10 with a Knowles -- I believe it's a Knowles

36:11 acoustic filter. And they're meant to provide

36:12 a flat attenuation, a uniform attenuation

36:13 across the frequency spectra. The EAR classic

36:14 earplug is a polyvinyl foam earplug, and it is

36:15 formable. You can roll it down and make it

36:16 insert into a fixture and whatnot.

36:17 The nonlinear earplugs that were looked at

36:18 were the Bilsom 655 using the ISL cartridge.

36:19 So it's essentially the -- it's the same

36:20 flanges as the 655 NST earplug. But instead of

36:21 having the NST filter, it uses the ISL

36:22 cartridge. The EAR Combat Arms Version II with

36:23 the ISL cartridge, we all know what that is.

37:01 And then there's another product here, the

37:02 North Sonic ear valve, which is -- essentially

37:03 it's a flap inside of a metal cylinder with

37:04 openings on either end. And the assumption is

37:05 that the sound pressure level will cause that

37:06 flap to close and increase the attenuation.

37:07 And then the last product that's on that is an

37:08 earmuff called the EAR Ultra 9000. I don't

37:09 know if that's sold anymore. I don't believe

37:10 that it is. And it is also based on a

37:11 nonlinear acoustic process like the ISL

37:12 cartridge except instead of a cylinder with two

37:13 holes on either end, you know, inserted into an

37:14 ear canal cartridge, it's a larger slit orifice

37:15 that relies on the same principles that as the

37:16 sound pressure differential across the orifice

37:17 is increasing, the acoustic resistance

37:18 increases and provides more attenuation as the

37:19 sound pressure level outside goes up.

37:20 Q. Okay. Was this testing also done

37:21 on a mannequin?

37:22 A. Yes. It was done on the ISL

37:23 mannequin that was done on the previous

38:01 discussion --

38:02 Q. And --

38:03 A. -- so circa 2000.

38:04 Q. -- would the Combat Arms

38:05 Version II have been fitted into that mannequin

38:06 in the manner that you described earlier?

38:07 A. Yes.

38:08 Q. Did you need to fold back the

38:09 flanges on the --

38:10 A. No.

38:11 Q. -- opposite on this test?

38:12 A. No.

38:13 Q. You were able to get a good fit

38:14 with the Combat Arms Version II without folding

38:15 the flanges back?

Page 10 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 11 of 24
38:16 A. Correct.

38:17 Q. Did you have any problems during

38:18 this testing achieving or maintaining a good

38:19 fit with the Combat Arms Version II?

38:20 A. No. You know, it's -- it's the

38:21 same earplug. It's the same ear canal. And

38:22 it's the same issues that I mentioned earlier,

38:23 which is the first two flanges would have solid

39:01 contact with the ear canal wall. And the third

39:02 flange was in contact with the outer edge of

39:03 the ear canal wall.

39:06 - 41:01 Murphy, William (2021-01-15) 3:31

39:06 Q. And Dr. Murphy, could you tell us

39:07 what you did during this 2002 testing?

39:08 A. So this is describing the

39:09 measurements at the indoor firing range. There

39:10 are ten weapons that are indicated here, five

39:11 different calibers, and the weapons had

39:12 different length barrels. So there are four

39:13 pistols. The 357 Smith and Wesson 586 and 686.

39:14 I don't remember which one is the longer one.

39:15 Same thing for the Para-Ordnance and the

39:16 Colt 991, 45 caliber, the Glock 22 and 27, and

39:17 the pocket nine and Sig Sauer nine millimeter

39:18 pistols.

39:19 The Remington 870 and 1187 also had slightly

39:20 different lengths in the shotgun barrel. We

39:21 set the mannequin up so that it was six feet to

39:22 the left of the shooter. The shooter had a

39:23 tripod in which they were to rest their hand

40:01 and basically provide a gun rest so that we

40:02 maintained a consistent positioning of the

40:03 weapon and not having issues of the weapon

40:04 barrel being, you know -- moving around

40:05 significantly.

40:06 For each hearing protector condition,

40:07 whether that was the device with the nonlinear

40:08 insertion or the linear insertion, every one of

40:09 them we -- we measured five shots for each of

40:10 these ten weapons at the indoor range. And if

40:11 I remember the -- the study was something like

40:12 there were 33 different conditions. And we had

40:13 ten weapons. And so that resulted in a couple

40:14 thousand shots that we had in this study.

40:15 At the outdoor range -- which is not

40:16 described here. At the outdoor range we

40:17 selected five of these weapons and two other

40:18 weapons that we couldn't use at the indoor

40:19 range, the Colt AR-15 and a Heckler and Koch.

40:20 I want to say it was a 36 rifle. And those

40:21 fire a .223 ammunition round or a .556

40:22 ammunition round. And they don't fire those at

40:23 the indoor range because their bullet traps are

Page 11 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 12 of 24
41:01 not designed to accept that much energy.

41:05 - 44:01 Murphy, William (2021-01-15) 4:32

41:05 Q. Dr. Murphy, take a look at this.

41:06 And can you tell us at least at a high level

41:07 what the results were for the green end, the

41:08 linear end of the Combat Arms Version II?

41:09 A. Yeah. As you look at that, it's

41:10 the greenish squares that are indicated in

41:11 this. And you can see that the -- these are

41:12 third octave band estimates of the noise

41:13 reduction. So this is the measurement between

41:14 the external microphone. So if we're putting a

41:15 microphone about four inches or so from the

41:16 right ear of the mannequin, then the mannequin

41:17 is -- has either a hearing protector or no

41:18 hearing -- actually it always had a hearing

41:19 protector on. And the reason it had a hearing

41:20 protector on is that initial purchase of the

41:21 mannequin had a half-inch microphone. So we

41:22 couldn't do an unoccluded measurement, a

41:23 measurement without a hearing protector on it,

42:01 without fear of overloading the microphone. So

42:02 that's why all of our measurements were done

42:03 with the earplugs in place.

42:04 So we're taking a measurement between the

42:05 external microphone and the internal microphone

42:06 and calculating the third octave band noise

42:07 reduction values.

42:08 Q. I know this is in graphical form,

42:09 so it may be a little bit difficult to do just

42:10 visually. But can you tell us sort of the

42:11 range or typical attenuation provided by the

42:12 CAEv2 green end during the testing?

42:13 A. Yeah. As we look at this, it --

42:14 it changes from starting at the left of the

42:15 graph at 25 hertz. Although knowing what I

42:16 know now in the publications that we did on

42:17 these kinds of products or these kinds of

42:18 measurements from this study, I would start at

42:19 around 100 hertz because we don't have a long

42:20 enough time sample to really get a good solid

42:21 measurement for the very low frequency that is

42:22 between 25 and 100 hertz.

42:23 But starting at a hundred hertz, we're

43:01 around 32 decibels. And as you go up around it

43:02 looks like about 400 hertz, it's decreased a

43:03 little bit to 28 or 23 -- 26 decibels. And

43:04 then it increases up to around 30-something

43:05 decibels, almost 40 decibels at 8,000 -- or 800

43:06 hertz.

43:07 And it reduces a little bit again. And by

43:08 the time we get out to 5,000 hertz and above,

43:09 it is more than 50 decibels. And there's a

Page 12 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 13 of 24
43:10 dark -- well, not dark. A teal colored line in

43:11 this bold line. And that indicates the bone

43:12 conduction limit for the attenuation

43:13 measurement.

43:14 In other words, at some point the amount of

43:15 energy that would potentially be transmitted to

43:16 a person wearing the earplug to their --

43:17 through their skull -- not through the ear, but

43:18 through their skull, through the brain tissue

43:19 and potentially to the cochlea, it's what we

43:20 call the bone conduction limit. And so when

43:21 those two green values are below in this graph,

43:22 that line, we would want to limit what we say

43:23 about the amount of attenuation that it might

44:01 provide.

44:23 - 46:07 Murphy, William (2021-01-15) 2:45

44:23 Q. Dr. Murphy, can you tell us how

45:01 the Bilsom product performed that had the ISL

45:02 filter in it?

45:03 A. In this case again, again, we

45:04 started around 100 hertz. The -- these are the

45:05 linear earplug filters. These are not the

45:06 nonlinear earplug filters. So it's not a

45:07 comparison -- well, wait. Wait. Wait. Wait.

45:08 I'm sorry. We are talking about the

45:09 Combat Arms linear earplug.

45:10 Okay. So the one that is to be compared

45:11 with the Combat Arms Version II would be the

45:12 blue symbols that are in this, the blue circles

45:13 and symbols. And we see attenuation ranging

45:14 from about 28 at 100 hertz. It decreases to

45:15 about 15 or so at 400 hertz and then increases

45:16 upwards of almost 40 decibels and such as you

45:17 move out into higher frequencies.

45:18 Q. Okay. So I'm sorry, Dr. Murphy.

45:19 Did I interrupt you?

45:20 A. The one thing I was going to point

45:21 out is that, you know, relative to the noises

45:22 that we're -- we're looking at, these are going

45:23 to be gunshots. And they're going to have peak

46:01 levels or a spectral peak around a thousand

46:02 hertz -- five hundred to a thousand hertz. So

46:03 the portion that matters in terms of the

46:04 attenuation that we're dealing with is going to

46:05 be affected perhaps more strongly by the

46:06 decrease in attenuation you see at 400, 500

46:07 hertz.

46:10 - 47:15 Murphy, William (2021-01-15) 2:45

46:10 Q. Dr. Murphy, I believe this -- this

46:11 slide contains the yellow end.

46:12 A. Yes.

46:13 Q. The nonlinear end of the

Page 13 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 14 of 24
46:14 Combat Arms and the other products. Can you

46:15 tell us what attenuation or noise reduction was

46:16 achieved with the yellow end of the Combat Arms

46:17 Version II on your testing?

46:18 A. Yeah. I'm just trying to think

46:19 about what's here. I'm -- I'm going to confess

46:20 that there may be an error in the legend. I'm

46:21 not positive about that. I'd have to go back

46:22 and check my -- my data. But if I believe the

46:23 legend as it is, the black symbols -- and well,

47:01 let me describe what I think the error is. The

47:02 EAR Combat Arms nonlinear earplug is yellow.

47:03 The EAR Ultra 9000 earmuff is black. And I

47:04 thought that these would be -- the yellow would

47:05 be the Combat Arms and the black would be the

47:06 Ultra 9000. That said, if we look at these, we

47:07 see a change in attenuation from almost no

47:08 attenuation at low levels or low frequencies.

47:09 And it increases as one goes up in frequency to

47:10 about 20 dB. This is -- I'm following the

47:11 black squares that are in this graph, to about

47:12 20 dB. Starting around a hundred hertz there's

47:13 a slight dip. It looks to be about 100 hertz.

47:14 And then it tends to increase from there on

47:15 out.

48:05 - 51:07 Murphy, William (2021-01-15) 4:57

48:05 MR. WASDIN: If we go to slide 20,

48:06 Simon, there is a -- a chart that's called

48:07 summary of attenuation growth.

48:08 Q. Dr. Murphy, do you see that?

48:09 A. Yes, I do.

48:10 Q. What is this depicting?

48:11 A. Well, I think you need to go back

48:12 two -- one side. Let's go back one slide,

48:13 please, and I can describe what -- what we're

48:14 talking about here. Because the different

48:15 weapons that we used, this is data from the

48:16 indoor firing range because there are ten

48:17 symbols in blue, ten symbols in black, and ten

48:18 symbols in yellow. The different weapons have

48:19 different peak levels. And the performance of

48:20 a nonlinear earplug changes as a function of

48:21 the external and internal pressure difference.

48:22 So what I was trying to look at is what is the

48:23 growth or what is the change, what's the

49:01 variability in the nonlinear, you know, peak

49:02 reduction that we're seeing. Not the nonlinear

49:03 peak reduction. What is the change in the peak

49:04 reduction and what's the uncertainty in the

49:05 peak reduction as a function of the various

49:06 weapons that were used.

49:07 And what we see here are three different

49:08 hearing protection devices, the EAR nonlinear

Page 14 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 15 of 24
49:09 earplug. That's in yellow. And the Ultra 9000

49:10 in black and the Bilsom ISL earplug in blue.

49:11 And what I did was take the average of all of

49:12 these quantities, so roughly the averages kind

49:13 of in the middle of each of those lines. Let's

49:14 just say right around 162.

49:15 So if we look at the Bilsom, we're seeing

49:16 around 17. If we look at the Ultra 9000, we're

49:17 seeing about 21 or 22. And if we're looking at

49:18 the EAR Combat Arms Earplug, we're looking at

49:19 about 23 in terms of the average of all of

49:20 those symbols. Then the other quantity that I

49:21 was trying to capture was the slope of those

49:22 lines.

49:23 And when you take a look at the slopes of

50:01 those lines, it's listed there 0.88 -- I'm

50:02 sorry, 0.088 decibels per decibel for the blue

50:03 line. 0.13 decibels per decibel for the yellow

50:04 line. And 0.53 decibels per decibel for the

50:05 black line.

50:06 Now, the earmuff is the Ultra 9000. And

50:07 earmuffs tend to change more. At least in my

50:08 experience with this, they change more as a

50:09 function of the peak level. And it has to do

50:10 just with the fact that you've got this large

50:11 volume that is being affected differently as

50:12 the -- as the impulse levels increase.

50:13 Now if we go to the next slide, what I've

50:14 done is try to summarize all of the products

50:15 that were tested and plotted them by their

50:16 average level and plotting them with the slope,

50:17 the attenuation of those lines. And so if we

50:18 look at the EAR Combat Arms, it's a 23 with a

50:19 slope of about .13 or .15. I forget what the

50:20 number was. Yes, that's the right symbol.

50:21 The Bilsom ISL is the dark blue symbol, and

50:22 it's around 17. And the slope is in the other

50:23 graph. It's at 0.088. And the EAR Ultra 9000

51:01 is up there at the top of the page. And it has

51:02 an attenuation of about 21 or 22 dB and a large

51:03 slope on this.

51:04 Q. So is the way this chart works is

51:05 that the further to the right you are, the

51:06 higher the noise reduction was?

51:07 A. The higher peak reduction, yes.

51:22 - 54:13 Murphy, William (2021-01-15) 3:56

51:22 Q. And Dr. Murphy, this is the, I

51:23 believe --

52:01 A. The poster.

52:02 Q. The poster, yeah.

52:03 A. Yeah.

52:04 Q. Okay. Can you -- after the 2002

52:05 testing that we just described, when was the

Page 15 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 16 of 24
52:06 next time you tested the Combat Arms

52:07 Version II?

52:08 A. This was conducted in 2015.

52:09 Q. Okay. And what was this testing?

52:10 A. In the left photograph in the

52:11 poster, you see a very large horn. And in

52:12 front of the horn are two of the GRAS Sound and

52:13 Vibration 45 CB acoustic test fixtures. One of

52:14 those fixtures was owned by NIOSH. The other

52:15 of those fixtures was owned by Western Michigan

52:16 University. And in between those two fixtures

52:17 is a pencil or a cylinder that you see there

52:18 with kind of a pointy end. And that is the

52:19 GRAS Sound and Vibration 67 SB probe

52:20 microphone.

52:21 Q. And these -- these heads, these

52:22 mannequin heads that we can see in the photo,

52:23 is that a sort of new test fixture that was

53:01 used --

53:02 A. Correct.

53:03 Q. -- for this testing?

53:04 A. Correct. In 2010, you see it

53:05 listed right there at the top there, the ANSI

53:06 12.42-2010 standard was issued. And one of the

53:07 things we identified was a need to have longer

53:08 ear canals. These fixtures were manufactured

53:09 with approximately an 18 millimeter ear canal,

53:10 which would allow one to fit a typical foam

53:11 earplug or other earplug fully into the ear

53:12 canal and not bottom out at the -- at the grid

53:13 of the microphone in the middle ear simulator.

53:14 Q. It also looks from the photo like

53:15 these mannequins have a -- a pinna, like a --

53:16 A. Yes. They have a pinna that's

53:17 based on a human shaped pinna. You see the

53:18 flesh-shaped color ring around that. That's so

53:19 that when you put an earmuff or something on

53:20 it, you're making contact with something that

53:21 has the -- the typical Shore resistance as what

53:22 you might see with skin. Inside of the ear

53:23 canal of those mannequins, it's a steel tube.

54:01 Lining this steel tube is the same kind of

54:02 material that you see on the outside there, the

54:03 -- the flesh colored silicone material.

54:04 Q. How -- how were the Combat Arms

54:05 plugs, the Version II plugs, fit on this

54:06 mannequin during this testing?

54:07 A. They were fitted so that you could

54:08 get the entire earplug in -- well, the entire

54:09 three flanges inserted into the mannequin's

54:10 ear. And the flanges were not folded back.

54:11 Q. When you say the flanges were not

54:12 folded back, you mean on the opposite end?

54:13 A. Correct.

Page 16 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 17 of 24
54:14 - 54:19 Murphy, William (2021-01-15) 0:11

54:14 Q. Did you have any problems

54:15 achieving or maintaining a good fit with the

54:16 Combat Arms Version II during this testing?

54:17 A. No. The mannequins didn't move.

54:18 Q. Okay. And can you --

54:19 A. They didn't complain.

54:20 - 56:18 Murphy, William (2021-01-15) 3:35

54:20 Q. I think I'm probably running

54:21 pretty short on time. But can you give us a

54:22 sort of a high level overview of the results

54:23 of --

55:01 A. Right. So there are -- if you can

55:02 slide over a little bit. Yeah. Blow up the

55:03 panel on your -- the panel in the middle there,

55:04 blow it up a little bit more. There is a CAEv4

55:05 and a CAEv2. And the CAEv2, there are two sets

55:06 of three bars. And I would have to look

55:07 closely at it to remember which ones are the

55:08 Western Michigan -- oh, it says it right there.

55:09 Western Michigan are the three bars to the

55:10 right. And the NIOSH fixture are the three

55:11 bars to the left. If you can zoom it in a

55:12 little bit more, please, that would be helpful.

55:13 There we go.

55:14 So we're looking at the Combat Arms

55:15 Version II. You'll see that there are a

55:16 blue -- a dark blue, a light -- a lighter blue,

55:17 and sort of a teal colored, and then a green,

55:18 orange, and yellow colored bar. These

55:19 represent three different peak levels that were

55:20 generated by the acoustic shock tube at 132,

55:21 150, and 168 decibel peak sound pressure level.

55:22 And we have different amounts of attenuation

55:23 that are observed on these devices. And this

56:01 is the impulse peak insertion loss.

56:02 And what it is, is we use calculation to

56:03 compensate for the fact that the person or that

56:04 the fixture is occluded versus unoccluded. And

56:05 we impute what the -- estimate what the peak

56:06 level would have been for a shot based on the

56:07 acoustic transfer function between that

56:08 pressure probe that you saw in the middle of

56:09 the two mannequins and the ear canal of the

56:10 unoccluded fixture.

56:11 And so we're seeing levels of attenuation at

56:12 132 of about ten decibels. At 150 dB we're

56:13 seeing attenuation levels of around 17 or 18

56:14 decibels. And at 168 dB we're seeing

56:15 attenuation levels of 32 to 35 decibels. The

56:16 little blips that you see on the tops of those

56:17 bars are the standard deviation -- one standard

Page 17 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 18 of 24
56:18 deviation.

61:13 - 62:09 Murphy, William (2021-01-15) 1:58

61:13 Q. (Mr. Monsour) You were talking

61:14 with regard -- you mentioned before how

61:15 mannequins don't move. Correct, Dr. Murphy?

61:16 A. They usually don't.

61:17 Q. Right. They -- I agree. They

61:18 usually don't. And one of the points that you

61:19 made with regard to fit was that the mannequins

61:20 don't move. Correct?

61:21 A. Correct.

61:22 Q. And why is it important to

61:23 calculate that or factor that in, in a study

62:01 that is going to be potentially used to

62:02 attribute study response from a mannequin into

62:03 its application for humans?

62:04 A. The reason we use a mannequin for

62:05 the testing is because it would be unethical to

62:06 expose a human to these noise levels.

62:07 Q. Do you --

62:08 A. We could produce hearing loss in

62:09 our human subjects.

62:10 - 63:12 Murphy, William (2021-01-15) 2:37

62:10 Q. Okay. Do you -- do you

62:11 necessarily assume that because testing on a

62:12 mannequin that doesn't move reaches a certain

62:13 level of protection that an actual human user

62:14 that does move will get the same protection?

62:15 A. Just one moment. I'm making sure

62:16 that there's nobody knocking on the door. I

62:17 heard something. Do we assume that the person

62:18 who's using the earplug has the same protection

62:19 as what we measure? That, of course, is an

62:20 assumption in any hearing protector

62:21 measurement. If you look at the regulation

62:22 that governs the creation of the noise

62:23 reduction rating for a hearing protection

63:01 device, it is designed to provide one with an

63:02 indication of the potential for the noise

63:03 reduction capabilities of that hearing

63:04 protection device. And so there's no

63:05 regulation in the United States for describing

63:06 the performance of these protection devices in

63:07 regards to impulse noise. There is a

63:08 regulation that governs -- and it's 40 CFR 211

63:09 subpart B that describes and regulates how a

63:10 manufacturer is required to measure and report

63:11 the attenuation of a hearing protection device

63:12 for sale in the United States.

63:23 - 65:04 Murphy, William (2021-01-15) 2:38

63:23 Q. The first two exhibits that you Re: [63:23 to 65:04] Re: [63:23 to 65:04] Re: [63:23 to 65:04] SUSTAINED

Page 18 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 19 of 24
64:01 looked at, Dr. Murphy, detailed some early Pltf Obj cumulative SUSTAINED Pltf Obj cumulative

64:02 testing that you had done on the product in

64:03 2001 and 2002. Is that correct?

64:04 A. Yes.

64:05 Q. And in both of those studies or

64:06 both of those tests that you performed, you

64:07 mentioned that the third flange of the inserted

64:08 portion of the Combat Arms Version II Earplug

64:09 was just barely touching the outside of the

64:10 artificial canal. Is that correct?

64:11 A. Correct.

64:12 Q. Is it a fair statement to say,

64:13 sir, that because the part that was being

64:14 inserted was barely touching the outside of the

64:15 canal, that the opposing outer flange was not

64:16 pressing upon the artificial ear canal?

64:17 A. It wouldn't have been pressing on

64:18 the ear canal. It may have been in contact

64:19 with the concha, which is the -- if you look at

64:20 your ear, this portion where I'm sticking my

64:21 finger is the concha. It could have been

64:22 contacting the -- the anterior portion of the

64:23 concha. Whether that would provide a force --

65:01 an outward force, you know, a lateral force,

65:02 that would not be the case because if it's just

65:03 a side friction force, it's not going to do

65:04 anything.

69:02 - 69:14 Murphy, William (2021-01-15) 1:49

69:02 Q. Right. Re: [69:02 to 69:14] Re: [69:02 to 69:14] Re: [69:02 to 69:14] SUSTAINED

69:03 A. If you have -- if you have not Pltf Obj incomplete, SUSTAINED-Nonresponsive Pltf Obj nonresponsive

69:04 fitted the earplug properly in your ear, you nonresponsive

69:05 can have very poor attenuation. If you have an

69:06 earmuff that gets moved in the course of firing

69:07 a weapon or something like that, you can end up

69:08 with a threshold shift as a result of that.

69:09 The -- the reason that we did this research is

69:10 because when you fire a weapon that's 150, 160,

69:11 170 decibels at the ear canal -- and I'm only

69:12 talking about small arms fire -- those levels

69:13 are enough to cause immediate threshold shifts.

69:14 And they can be permanent threshold shifts.

70:20 - 72:05 Murphy, William (2021-01-15) 2:34

70:20 Q. (Ms. Monsour) Isn't it a fair Re: [70:20 to 72:05] Re: [70:20 to 72:05] Re: [70:20 to 72:05] SUSTAINED

70:21 statement, sir, that when you're performing Pltf Obj nonresponsive SUSTAINED-Nonresponsive Pltf Obj nonresponsive

70:22 acoustic tests on an acoustic test fixture,

70:23 that because it is not a real ear, the data

71:01 from it is not necessarily representative of

71:02 what will happen in a real ear? Is that a

71:03 fair --

71:04 MS. SASLAW: And again, I'm going

71:05 to -- sorry to cut you off. I'm going to

71:06 object on the basis that it's outside the scope

Page 19 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 20 of 24
71:07 of the authorization.

71:08 MR. MONSOUR: Jesus.

71:09 THE WITNESS: Well, I'm -- I'm

71:10 going to answer this question against your --

71:11 over your objection.

71:12 A. And that is that this presentation

71:13 was done in 2002. And we had not conducted any

71:14 analysis of the attenuation as a function of

71:15 frequency and done comparisons with real ear

71:16 attenuation and threshold testing, which really

71:17 is at the heart of this whole -- some of this

71:18 lawsuit that we're dealing with here. And in

71:19 the testing that we did, we were able to

71:20 demonstrate that the attenuations that we were

71:21 seeing for the products was representative of

71:22 real ears in terms of what we were seeing.

71:23 We had measurements of the acoustic test

72:01 fixture in continuous noise. We had

72:02 measurements of the acoustic test fixture in

72:03 impulse noise. And we had real ear attenuation

72:04 and threshold testing with human subjects. And

72:05 the results agree.

Page 20 of 20

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 21 of 24
Preserved Objections Previous Rulings New Objections Rulings

325:15 - 325:15 Santoro, Marc (2019-12-03) 0:00

325:15 QUESTIONS BY MR. LEACH:

325:16 - 326:07 Santoro, Marc (2019-12-03) 1:53

325:16 Q. Mr. Santoro, earlier today you Re: [325:16 to 327:10] Re: [325:16 to 327:10] Re: [325:16 to 327:10] OVERRULED

325:17 mentioned that you had had some discussions Pltf Obj 802; 602; 403; MIL OVERRULED Pltf Obj 802; 602; 403; MIL

325:18 with Doug Ohlin when he was working for the G4; MIL G5; MIL G6 G4; MIL G5; MIL G6

325:19 military.

325:20 Do you remember that testimony? Re: [325:16 to 327:12] OVERRULED

325:21 A. Yes. Pltf Obj MIL 15, 16, 17; 402

325:22 Q. Now, what do you recall about (time of conversation

325:23 those discussions with Mr. Ohlin when he inapplicable as to Baker)

325:24 worked for the military?

325:25 A. The discussions were Doug

326:01 providing direction on how he wanted to see

326:02 the product packaged and sold to them.

326:03 Q. Was there any particular

326:04 product that you recall discussing with him?

326:05 A. Yes.

326:06 Q. And what product is that?

326:07 A. Combat Arms generation 2.

326:08 - 327:12 Santoro, Marc (2019-12-03) 2:44

326:08 Q. Was there any particular Re: [325:16 to 327:10] Re: [325:16 to 327:10] Re: [325:16 to 327:10] OVERRULED

326:09 package or size that you recall discussing Pltf Obj 802; 602; 403; MIL OVERRULED Pltf Obj 802; 602; 403; MIL

326:10 with Mr. Ohlin? G4; MIL G5; MIL G6 G4; MIL G5; MIL G6

326:11 A. Yes. Doug requested the

326:12 generation 2 to be put in a bulk pack. Re: [325:16 to 327:12] OVERRULED

326:13 Q. And did he indicate how he Pltf Obj MIL 15, 16, 17; 402

326:14 wanted that packaged? (time of conversation

326:15 A. Yes. He requested that inapplicable as to Baker)

326:16 specifically 50 pair in a box -- sorry, 50

326:17 pair in a plastic bag, with nothing else in

326:18 there, inside a box.

326:19 Q. Did he tell you not to include

326:20 instructions in that box?

326:21 A. He did.

326:22 Q. Did he indicate why he didn't

326:23 want instructions in that box?

326:24 A. He felt that personal training

326:25 was the most effective way to train the

327:01 soldiers, and that the military audiologists

327:02 were going to take on that responsibility of

327:03 individually training every soldier.

327:04 Q. Did you follow Mr. Ohlin's

327:05 requests?

327:06 A. Yes.

327:07 Q. And why is that?

327:08 A. Doug was the one that pretty

327:09 much dictated how we were to provide hearing

327:10 protection to the military.

327:11 MR. LEACH: I have no further

327:12 questions.

Designations

Page 1 of 3

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 22 of 24
327:15 - 330:15 Santoro, Marc (2019-12-03) 4:35

327:15 Q. All right. I have a few Re: [327:15 to 327:18] Re: [327:15 to 327:18] Re: [327:15 to 327:18] SUSTAINED

327:16 follow-up to that. Def Obj Relevance (401, 402); SUSTAINED Def Obj Relevance (401, 402);

327:17 That's a remarkable Prejudicial (403); 611; Prejudicial (403); 611;

327:18 recollection of a specific conversation, sir. Improper Counter Re: [330:05 to 330:15] Improper Counter

327:19 When about did that OVERRULED

327:20 conversation with Doug Ohlin occur? Re: [330:05 to 330:15] Re: [330:05 to 330:15] OVERRULED

327:21 A. I don't recall specifically. Def Obj Improper Counter; Def Obj Improper Counter;

327:22 Q. How about generally? Foundation (602) Foundation (602)

327:23 A. First third of my employment

327:24 with 3M, Aearo.

327:25 Q. So within about --

328:01 A. First three or four years.

328:02 Q. Okay. And how did you -- did

328:03 you just remember that conversation without

328:04 any outside assistance?

328:05 A. I specifically remember the

328:06 conversation.

328:07 Q. Okay. Did you look at any

328:08 documents to help you refresh your

328:09 recollection on that conversation?

328:10 A. No.

328:11 Q. Who else was on the call?

328:12 A. I don't recall if anyone else

328:13 was on the call.

328:14 Q. So you remember speaking to

328:15 Mr. Ohlin, but not necessarily if anyone else

328:16 joined you from Aearo?

328:17 A. No.

328:18 Q. And Mr. Ohlin talked to you

328:19 about how the product was packaged and sold

328:20 but not how it was designed; is that right?

328:21 A. I don't recall any discussion

328:22 about the design of the product with him.

328:23 Q. Okay. And you said that he

328:24 felt personal training was the most effective

328:25 way to train soldiers?

329:01 A. Yes.

329:02 Q. Okay. Do you recall

329:03 specifically what he said?

329:04 A. Yeah. Whatever -- if we can

329:05 read back my testimony, that was what I

329:06 recall he said.

329:07 Q. Well, what was your testimony?

329:08 You said you remember the conversation.

329:09 What did he say about his views

329:10 on the best way to train soldiers for using

329:11 Combat Arms version 2?

329:12 A. Again, he said that the -- that

329:13 he felt the best way to train the soldiers

329:14 was individually and that he was working with

329:15 the military audiology group to provide that

329:16 training so that every soldier would be --

Page 2 of 3

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 23 of 24
329:17 would receive training as they went into Army

329:18 training.

329:19 Q. And did Aearo provide any

329:20 instruction to military audiologists about

329:21 the proper insertion and usage of the Combat

329:22 Arms version 2?

329:23 A. Yes, we provided instructions

329:24 to them.

329:25 Q. Okay. Such as that sheet that

330:01 we talked about at the very end of my initial

330:02 questioning this morning -- or today?

330:03 A. That was one of the instruction

330:04 guides.

330:05 Q. Do you recall ever seeing any

330:06 instruction guide provided to any military

330:07 audiologist that said for proper fit, fold

330:08 back the flanges in every single instance?

330:09 A. I don't recall.

330:10 Q. Do you recall anyone within

330:11 Aearo or 3M ever saying, we instructed

330:12 military audiologists to fold back the flange

330:13 on every single insertion of the Combat Arms

330:14 version 2?

330:15 A. I don't recall.

331:17 - 331:24 Santoro, Marc (2019-12-03) 0:20

331:17 Q. Yeah. Have you seen any single

331:18 document reflecting this conversation that

331:19 you said you had with Doug Ohlin where he

331:20 expressed a desire to not have instructions

331:21 in the 50-packs of the version 2 Combat Arms

331:22 Earplugs?

331:23 A. Not that I recall. It was a

331:24 verbal conversation.

Page 3 of 3

Case 7:20-cv-00039-MCR-GRJ Document 167-1 Filed 06/11/21 Page 24 of 24