EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 1 of 151
Klun, Robert 6-24-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 2 of 151
Klun, Robert 6-24-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

11:9 - 11:15 Klun, Robert 6-24-2020

 11 9 Q. Good morning, Mr. Klun.

 11 10 A. Good morning.

 11 11 Q. How's the sound quality?

 11 12 A. I think it's pretty good.

 11 13 Q. All right. Would you please

 11 14 state your name for the record?

 11 15 A. Robert Klun.

17:1 - 17:8 Klun, Robert 6-24-2020

 17 1 When you retired from 3M at the

 17 2 end of 2015, what was your title?

 17 3 A. At that point in time with 3M,

 17 4 it would have been quality manager.

 17 5 Q. What does a quality manager do?

 17 6 A. In my role, I worked on quality

 17 7 systems and any other special issues that may

 17 8 have arisen or may arise.

17:17 - 17:20 Klun, Robert 6-24-2020

 17 17 Q. So this is work processes

 17 18 regarding multiple products in multiple areas

 17 19 that you're working on?

 17 20 A. Yes.

Re: [17:17-17:20]

Improper Counter Designation

SUSTAINED

21:3 - 21:10 Klun, Robert 6-24-2020

 21 3 Q. All right. I want to go

 21 4 through a little bit of this work history.

 21 5 When did you start with Aearo?

 21 6 A. In November 1998.

 21 7 Q. And then you were continuously

 21 8 employed between November of 1998 and

 21 9 December of 2015 by either Aearo or 3M, fair?

 21 10 A. Yes.

23:24 - 24:2 Klun, Robert 6-24-2020

 23 24 When you were hired on at

 23 25 Aearo, what were you tasked with doing?

 24 1 A. I hired on as a quality

 24 2 manager.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 3 of 151
Klun, Robert 6-24-2020 3

26:25 - 27:2 Klun, Robert 6-24-2020

 26 25 Q. Okay.

 27 1 A. Various -- the various product

 27 2 lines.

Re: [26:25-27:2]

Improper Counter Designation

SUSTAINED

28:9 - 29:2 Klun, Robert 6-24-2020

 28 9 Q. Okay. So were you the manager

 28 10 of the Aearo laboratories lab -- for what

 28 11 years?

 28 12 A. They reorganized a couple

 28 13 times, but I would say at this point in time

 28 14 it would have been 2000 -- around 2012 to --

 28 15 or '10, 2010, to somewhere 2012, 2013.

 28 16 Q. Is that the only time you were

 28 17 the manager of the Aearo laboratories, or

 28 18 were you manager before the acquisition by

 28 19 3M?

 28 20 A. As the R&D manager for Aearo, I

 28 21 was -- managed R&D before the acquisition.

 28 22 Q. And how long did that -- how

 28 23 far back did that go? To November of '98 or

 28 24 was it later?

 28 25 A. It was later. It would have

 29 1 been in the range of late 2002, 2001,

 29 2 somewhere in that time frame.

31:8 - 31:18 Klun, Robert 6-24-2020

 31 8 Q. All right. How did you become

 31 9 familiar with the Combat Arms Earplug

 31 10 version 2?

 31 11 A. As I recall, very peripherally

 31 12 from the standpoint of -- that we sold the

 31 13 product at Aearo and also at 3M.

 31 14 Q. Well, the laboratory also

 31 15 tested the product, didn't it?

 31 16 A. I would say -- I can't recall

 31 17 who tested the product, but I would say -- I

 31 18 would say, yes, they probably tested it.

Re: [31:8-31:18]

Plt Objection - Improper 

Counter Designation

Re: [31:8-31:18]

Plt Objection -

improper counter 

per PTO 64

OVERRULED

31:19 - 32:5 Klun, Robert 6-24-2020

 31 19 Q. All right. One more of these

 31 20 on -- go to page 20. Aearo Technologies,

Re: [31:19-32:5]

Plt Objection - Improper 

Counter Designation

Re: [31:19-32:5]

Plt Objection -

improper counter 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 4 of 151
Klun, Robert 6-24-2020 4

 31 21 LLC, research and development organization.

 31 22 Now, it's got you listed as the

 31 23 manager of R&D.

 31 24 Was that -- it was a

 31 25 simultaneous role with being the manager of

 32 1 the Aearo laboratories?

 32 2 A. No, the 3M organization -- 3M

 32 3 reorganized the -- Aearo many times as they

 32 4 tried to integrate Aearo into the 3M

 32 5 structure.

per PTO 64

OVERRULED

32:6 - 32:16 Klun, Robert 6-24-2020

 32 6 Q. Okay. So this is a

 32 7 reorganization. You're still -- it looks

 32 8 like you're still over the laboratory. It

 32 9 just looks like it's split between hearing

 32 10 and E-A-RCAL laboratory. On the far left

 32 11 side under Jeff Hamer.

 32 12 A. Under Jeff would be the passive

 32 13 hearing or earplug business in general.

 32 14 Under Sigge Nilsson would be

 32 15 the Peltor products, which would be earmuffs

 32 16 and communication headsets.

Re: [32:6-32:16]

Plt Objection - Improper 

Counter Designation

Re: [32:6-32:16]

Plt Objection -

improper counter 

per PTO 64

OVERRULED

Re: [32:6-32:16]

cumulative

OVERRULED

32:17 - 32:20 Klun, Robert 6-24-2020

 32 17 Q. Go ahead.

 32 18 A. Indianapolis headed up -- was

 32 19 the center for earplug research. Peltor was

 32 20 for earmuffs.

Re: [32:17-32:20]

Plt Objection - Improper 

Counter Designation

Re: [32:17-

32:20]

Plt Objection -

improper counter 

per PTO 64

OVERRULED

Re: [32:17-32:20]

Cumulative, 401/402 

OVERRULED

54:19 - 54:22 Klun, Robert 6-24-2020

 54 19 Q. Now, you were involved with the

 54 20 Combat Arms version 2 fairly early in your

 54 21 career at Aearo?

 54 22 A. No, I don't agree with that.

Re: [54:19-54:22]

Plt Objection - Improper 

Counter Designation

Re: [54:19-

54:22]

Plt Objection -

improper counter 

per PTO 64

OVERRULED

66:4 - 66:6 Klun, Robert 6-24-2020

 66 4 QUESTIONS BY MR. PIRTLE:

 66 5 Q. I'm talking about hearing

 66 6 protection now.

Re: [66:1-66:9]

Def Objection - Vague (611, 

403); Foundation 602

Re: [66:1-66:9]

Def Objection -

Vague (611, 

403); Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 5 of 151
Klun, Robert 6-24-2020 5

602

Overruled

66:8 - 66:20 Klun, Robert 6-24-2020

 66 8 THE WITNESS: That is my

 66 9 understanding.

 66 10 QUESTIONS BY MR. PIRTLE:

 66 11 Q. Fair enough.

 66 12 So all hearing protection

 66 13 products that were sold had an NRR affixed to

 66 14 them.

 66 15 Fair enough?

 66 16 A. Fair enough.

 66 17 Q. And is it fair to say that an

 66 18 NRR could affect whether or not a certain

 66 19 customer would buy a certain type of implant

 66 20 for an application?

Re: [66:1-66:9]

Def Objection - Vague (611, 

403); Foundation 602

Re: [66:12-66:16]

Def Objection - Foundation 

(602)

Re: [66:17-66:25]

Def Objection - Foundation 

(602)

Re: [66:1-66:9]

Def Objection -

Vague (611, 

403); Foundation 

602

Overruled

Re: [66:12-

66:16]

Def Objection -

Foundation (602)

Overruled

Re: [66:17-

66:25]

Def Objection -

Foundation (602)

Overruled

66:22 - 66:25 Klun, Robert 6-24-2020

 66 22 MR. PIRTLE: You can answer.

 66 23 THE WITNESS: NRR would not be

 66 24 the only factor, but NRR would be a

 66 25 factor.

Re: [66:17-66:25]

Def Objection - Foundation 

(602)

Re: [66:17-

66:25]

Def Objection -

Foundation (602)

Overruled

67:6 - 67:8 Klun, Robert 6-24-2020

 67 6 Q. And generally the higher the

 67 7 number, the better attenuation the plug in

 67 8 REAT testing has, if I understand correctly?

Re: [67:6-67:12]

Def Objection - Foundation 

(602)

Re: [67:6-67:12]

Def Objection -

Foundation (602)

Overruled

67:10 - 67:12 Klun, Robert 6-24-2020

 67 10 THE WITNESS: My understanding

 67 11 is the higher the NRR number, the more

 67 12 noise reduction.

Re: [67:6-67:12]

Def Objection - Foundation 

(602)

Re: [67:6-67:12]

Def Objection -

Foundation (602)

Overruled

67:17 - 67:20 Klun, Robert 6-24-2020

 67 17 What was your involvement with

 67 18 the NRR testing while you were at 3M, Aearo?

 67 19 A. As I recall, I was not involved

 67 20 in any testing.

Re: [67:17-67:20]

Improper Counter Designation

SUSTAINED

67:21 - 68:8 Klun, Robert 6-24-2020

 67 21 (Klun Exhibit 6 marked for

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 6 of 151
Klun, Robert 6-24-2020 6

 67 22 identification.)

 67 23 QUESTIONS BY MR. PIRTLE:

 67 24 Q. Let me show you what I'm going

 67 25 to mark as Exhibit 6 to your deposition.

 68 1 This is control number 56. I'll let you look

 68 2 at the first page.

 68 3 And the first page is important

 68 4 because it's from Jeffrey Hamer to you, dated

 68 5 2014, and it's -- I'm sorry, 2012, and it

 68 6 says, "FYI, Jeff Hamer."

 68 7 You with me?

 68 8 A. Yeah, I can see that part. I'm

69:12 - 69:22 Klun, Robert 6-24-2020

 69 12 Q. Okay. Well, this looks to be

 69 13 something that -- a document or a group of

 69 14 documents that was sent to you for your

 69 15 information by your employee -- or your

 69 16 report, Jeff Hamer. Fair?

 69 17 A. Based on the document, but I do

 69 18 not recall.

 69 19 Q. You don't remember seeing this

 69 20 document?

 69 21 A. I do not recall. I do not

 69 22 recall the document.

Re: [69:12-69:22]

Improper Counter Designation, 

cumulative 

OVERRULED

69:23 - 70:11 Klun, Robert 6-24-2020

 69 23 Q. Let's turn over to the second

 69 24 page of the document, see if reading this

 69 25 will not -- might help refresh your

 70 1 recollection.

 70 2 Down at the bottom below the

 70 3 line -- and I'll bring it up -- it says,

 70 4 "While this is somewhat vague, it is clear

 70 5 that if we make any modifications to a

 70 6 product which we suspect might impact, in

 70 7 parentheses, decrease, attenuation, we are

 70 8 obligated to retest according to the current

 70 9 EPA labeling requirements."

 70 10 Did I read that reasonably

 70 11 correct?

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 7 of 151
Klun, Robert 6-24-2020 7

71:1 - 71:4 Klun, Robert 6-24-2020

 71 1 MR. FIELDS: Okay. Do you see

 71 2 it highlighted?

 71 3 THE WITNESS: Yes, I see

 71 4 highlighted now, yes.

72:1 - 73:19 Klun, Robert 6-24-2020

 72 1 Q. It says, "For molded products,

 72 2 this document clearly indicates a dimensional

 72 3 change greater than approximately 5 percent

 72 4 is unacceptable. We also document the actual

 72 5 dimensions of the product produced and used

 72 6 for our label test evaluations so that we

 72 7 have a reference to go back to in the event

 72 8 we want to alter a tool or process."

 72 9 You with me?

 72 10 A. I'm with you.

 72 11 Q. All right. Said, "If we decide

 72 12 to make a, quote/unquote, change to a

 72 13 product, we must then retest per the EPA

 72 14 regulations using the subjective rear" -- I

 72 15 mean "real-ear attenuation at threshold,

 72 16 REAT, methodology stipulated by EPA and

 72 17 considered the gold standard for hearing

 72 18 protector attenuation measurement."

 72 19 Is that reasonably correct?

 72 20 A. Yes, that's what the document

 72 21 says.

 72 22 Q. It goes on to say, "As a

 72 23 result, we try very hard to not make any

 72 24 changes to any" -- oh, "to existing products

 72 25 that would result in a retest."

 73 1 Did you follow me there?

 73 2 A. I follow you there. That's

 73 3 what the document says.

 73 4 Q. I skipped a sentence.

 73 5 "As this is a subject test

 73 6 using 10 to 20 human subjects, depending on

 73 7 the situation, there is considerable

 73 8 variability in results. Easy plus or minus

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 8 of 151
Klun, Robert 6-24-2020 8

 73 9 3 dB NRR without any change to the product,

 73 10 and changes up to 5 dB have been documented."

 73 11 Does that fill it in?

 73 12 A. That's what the document says.

 73 13 Q. It says, "If we are forced to

 73 14 retest, it could easily result in a rating

 73 15 number change which could directly impact

 73 16 sales of the product and cause considerable

 73 17 money to change all of our literature and

 73 18 packaging to reflect the new test result.

 73 19 Sincerely, Hamer."

84:2 - 84:4 Klun, Robert 6-24-2020

 84 2 (Klun Exhibit 7 marked for

 84 3 identification.)

 84 4 QUESTIONS BY MR. PIRTLE:

84:6 - 84:21 Klun, Robert 6-24-2020

 84 6 I want to show you another

 84 7 document that I'm going to mark as Exhibit 7

 84 8 to your deposition, document control number

 84 9 is P0389.1.

 84 10 Can you see the document which

 84 11 is Exhibit 7, Mr. Klun?

 84 12 A. What's the document say?

 84 13 Q. "How folding the flanges back

 84 14 affects REAT results of the UltraFit earplug

 84 15 end of the Combat Arms plug."

 84 16 A. I see it now on the screen,

 84 17 yes.

 84 18 Q. Sir, do you recognize this

 84 19 document?

 84 20 A. I don't recall ever seeing this

 84 21 document.

85:4 - 85:8 Klun, Robert 6-24-2020

 85 4 Q. While you were at 3M, Aearo, do

 85 5 you ever have memory of this document being

 85 6 supplied to you or there being conversations

 85 7 about it?

 85 8 A. I do not recall.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 9 of 151
Klun, Robert 6-24-2020 9

86:12 - 86:14 Klun, Robert 6-24-2020

 86 12 I was showing you the front

 86 13 page of Exhibit 7 by Kieper and Berger,

 86 14 July 10, 2000.

Re: [86:12-86:14]

Def Objection - Cumulative 

(403)

Re: [86:12-

86:14]

Def Objection -

Cumulative (403)

Overruled

86:19 - 86:22 Klun, Robert 6-24-2020

 86 19 And it's my understanding that

 86 20 you have testified that you've not seen this

 86 21 document to your memory before?

 86 22 A. That's correct.

Re: [86:19-86:22]

Def Objection - Cumulative 

(403)

Re: [86:19-

86:22]

Def Objection -

Cumulative (403)

Overruled

92:5 - 92:16 Klun, Robert 6-24-2020

 92 5 Here is what I'm interested in.

 92 6 "The initial test, 213015, was

 92 7 stopped after eight subjects because the

 92 8 individual results were variable and the NRR

 92 9 was quite low, 11."

 92 10 Did I read that reasonably

 92 11 correct?

 92 12 A. That's what the document says.

 92 13 Q. The document characterized

 92 14 as -- an NRR of 11 as being quite low.

 92 15 Is that true to your knowledge?

 92 16 A. To my knowledge, yes.

Re: [92:5-92:16]

Def Objection - Foundation 

(602)

Re: [92:5-92:16]

Def Objection -

Foundation (602)

Overruled

93:4 - 93:6 Klun, Robert 6-24-2020

 93 4 Q. An NRR of 22 is much better

 93 5 than an NRR of 11; can we agree on that?

 93 6 A. Yes, I agree.

122:21 - 122:24 Klun, Robert 6-24-2020

 122 21 Q. And my question to you is: It

 122 22 was common at Aearo, 3M, to stop REAT testing

 122 23 when bad results were coming in short of the

 122 24 10 or 20 subject threshold, correct?

Re: [122:21-122:24]

Improper Counter Designation

SUSTAINED

123:1 - 123:2 Klun, Robert 6-24-2020

 123 1 THE WITNESS: I don't agree

 123 2 with that.

Re: [123:1-123:2]

Improper Counter Designation

SUSTAINED

123:14 - 123:18 Klun, Robert 6-24-2020

 123 14 Q. Well, it says, "Testing stopped

 123 15 after nine subjects."

Re: [123:14-123:18]

Improper Counter Designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 10 of 151
Klun, Robert 6-24-2020 10

 123 16 Right?

 123 17 A. And the rest is due to wrong

 123 18 fitting instructions.

146:13 - 146:17 Klun, Robert 6-24-2020

 146 13 Q. Do you know what type of

 146 14 support 3M gave the Armed Forces in trying to

 146 15 inform the Armed Forces as to how to fit the

 146 16 Combat Arms version 2?

 146 17 A. I do not know.

Re: [146:13-146:17]

Plt Objection - Improper 

Counter Designation

Re: [146:13-

146:17]

Plt Objection -

improper counter 

per PTO 64

SUSTAINED

Re: [146:13-146:17]

401/402, 602

SUSTAINED

146:22 - 147:4 Klun, Robert 6-24-2020

 146 22 Q. In 2004, what was your job?

 146 23 A. In 2004, if I recall correctly,

 146 24 it would have been R&D.

 146 25 Q. And what all did that entail?

 147 1 A. It would have been R&D for the

 147 2 products that Aearo offered, including

 147 3 eyewear, respiratory, all protection, the

 147 4 entire portfolio.

Re: [146:22-147:4]

Plt Objection - Improper 

Counter Designation

Re: [146:22-

147:4]

Plt Objection -

improper counter 

per PTO 64

OVERRULED

Re: [146:22-147:4]

401/402

SUSTAINED

147:5 - 147:14 Klun, Robert 6-24-2020

 147 5 Q. What was TJR?

 147 6 A. A contract manufacturer used by

 147 7 Aearo.

 147 8 Q. What did TJR stand for?

 147 9 A. That, I do not recall.

 147 10 Q. Where was TJR?

 147 11 A. If I remember correctly, it

 147 12 would have been Tijuana.

 147 13 Q. Tijuana, Mexico?

 147 14 A. I can't recall.

Re: [147:5-147:14]

Baker MIL 1

OVERRULED

147:19 - 147:20 Klun, Robert 6-24-2020

 147 19 And what did TJR do for Aearo

 147 20 in terms of contract manufacturing products?

Re: [147:19-147:20]

Improper Counter Designation

OVERRULED

147:22 - 147:25 Klun, Robert 6-24-2020

 147 22 THE WITNESS: All they did, I

 147 23 cannot recall. I don't know what

 147 24 products were made -- all the products

 147 25 made at TJR.

Re: [147:22-147:25]

Improper Counter Designation

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 11 of 151
Klun, Robert 6-24-2020 11

148:2 - 148:8 Klun, Robert 6-24-2020

 148 2 Q. Well, they had some involvement

 148 3 with the Combat Arms, didn't they?

 148 4 A. Yes, that I can remember.

 148 5 Q. Okay. What did they do for the

 148 6 Combat Arms Earplugs?

 148 7 A. If I recall correctly,

 148 8 assembly.

Re: [148:2-148:8]

Baker MIL 1

OVERRULED

150:25 - 151:2 Klun, Robert 6-24-2020

 150 25 Q. And where did the stems and

 151 1 filter come from?

 151 2 A. That, I do not recall.

Re: [150:25-151:2]

Improper Counter Designation

SUSTAINED

151:6 - 151:10 Klun, Robert 6-24-2020

 151 6 Q. How would they go about

 151 7 assembling it, putting tips on and putting

 151 8 the filters in the stem or in the straw?

 151 9 A. That was not my responsibility,

 151 10 so I don't know what TJR did.

Re: [151:6-151:10]

Improper Counter Designation, 

401/402, 602

SUSTAINED

151:14 - 159:22 Klun, Robert 6-24-2020

 151 14 Q. Let me show you what I've

 151 15 marked as Exhibit 16 to your depo, which is

 151 16 control number P2066A. It's got an agenda on

 151 17 it, but this is the first page of it.

 151 18 Let me know when you've

 151 19 reviewed it. We'll blow it up large for you

 151 20 to look at.

 151 21 A. Okay. I've seen it.

 151 22 Q. Okay. This is an e-mail from

 151 23 you, correct?

 151 24 A. That's what the document says.

 151 25 Q. And it's dated November

 152 1 the 19th of 2004, correct?

 152 2 A. Correct.

 152 3 Q. Do you remember reviewing this

 152 4 document?

 152 5 A. I do not recall this document.

 152 6 Q. All right. It looks like you

 152 7 cc'd yourself, right?

 152 8 A. That's what the document says.

Re: [151:14-159:25]

Def Objection - 3M MIL No. 

26; Relevance (401, 402)

Re: [154:14-154:19]

Def Objection - Foundation 

(602)

Re: [155:11-155:18]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [158:22-159:5]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [151:14-

159:25]

Def Objection -

3M MIL No. 26; 

Relevance (401, 

402)

Overruled

Re: [154:14-

154:19]

Def Objection -

Foundation (602)

Sustained

Re: [155:11-

155:18]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Sustained

Re: [158:22-

159:5]

Re: [151:14-159:17]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 12 of 151
Klun, Robert 6-24-2020 12

 152 9 Q. It says, "TJR quality, please

 152 10 review attached. Plans are for Bob and Ron

 152 11 to travel to TJR next week."

 152 12 Did you go down to Tijuana to

 152 13 TJR?

 152 14 A. I never went to TJR.

 152 15 Q. Did Ron go to TJR?

 152 16 A. I don't recall, but I assume

 152 17 so.

 152 18 Q. Was Ron working for you at the

 152 19 time? Sorry?

 152 20 A. Worked for Elliott, who worked

 152 21 for Dick.

 152 22 Q. All right.

 152 23 A. Elliott Berger --

 152 24 Q. Sure.

 152 25 A. -- and Dick Knauer.

 153 1 Q. And then you?

 153 2 A. Correct.

 153 3 Q. We'll turn over to the third

 153 4 page of the document. It looks like this is

 153 5 the outline. It says, "Quality problems at

 153 6 TJR; action plans to address quality

 153 7 problems."

 153 8 Did I read that reasonably

 153 9 correct?

 153 10 A. Yeah, that's what the document

 153 11 says.

 153 12 Q. Did you write this document?

 153 13 A. I do not recall, but I had it

 153 14 in an e-mail. That's what that e-mail says.

 153 15 Q. Sir --

 153 16 A. Attached.

 153 17 Q. Sir, you transmitted it as an

 153 18 attachment to the e-mail. It says number 1,

 153 19 "There have been continual problems with test

 153 20 equipment and calibration procedures not

 153 21 being followed at TJR."

 153 22 Did I read that correctly?

Def Objection -

Vague (611, 

403); Foundation 

(602)

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 13 of 151
Klun, Robert 6-24-2020 13

 153 23 A. Yes.

 153 24 Q. And the word that is used by

 153 25 the author of this is "continual" problems,

 154 1 correct?

 154 2 A. That's what the document says.

 154 3 Q. "Test equipment. The machines

 154 4 were due for calibration in May '03 as

 154 5 stipulated in the specified operating

 154 6 procedure, but even a year later were not

 154 7 calibrated."

 154 8 Did I read that correctly?

 154 9 A. Yes. That's what the document

 154 10 says.

 154 11 Q. Test equipment. Equipment used

 154 12 to test the earplugs?

 154 13 A. Based on the document.

 154 14 Q. Do you remember that the

 154 15 machines were out of calibration for a number

 154 16 of years?

 154 17 MR. FIELDS: Objection. Form.

 154 18 THE WITNESS: No, I do not

 154 19 recall.

 154 20 QUESTIONS BY MR. PIRTLE:

 154 21 Q. "Procedures. Calibration

 154 22 procedure not followed."

 154 23 That's what it says here?

 154 24 A. That's what the document says.

 154 25 Q. And it says, "We operated under

 155 1 a waiver for over six months because we

 155 2 needed to address the back -- to address

 155 3 backorder issues."

 155 4 What is a waiver?

 155 5 A. It's a release of product, is a

 155 6 waiver.

 155 7 Q. It's a release of product?

 155 8 A. No, not -- it could -- it

 155 9 depends on what the waiver is. You'd have to

 155 10 look at the waiver.

 155 11 Q. Okay. Well, I'm reading this,

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 14 of 151
Klun, Robert 6-24-2020 14

 155 12 and you can correct me if I'm wrong, but the

 155 13 waiver is a waiver of the fact that the

 155 14 product wasn't tested because the testing

 155 15 machines are not calibrated.

 155 16 You got another read of this?

 155 17 MR. FIELDS: Objection. Form.

 155 18 THE WITNESS: I don't recall.

 155 19 QUESTIONS BY MR. PIRTLE:

 155 20 Q. Now, do you recall finding out

 155 21 as a result it took approximately six months

 155 22 for TJR to get all the machines calibrated?

 155 23 A. Please repeat the question.

 155 24 Q. Yes.

 155 25 Do you recall that as a result,

 156 1 it took approximately six months for TJR to

 156 2 get all the machines calibrated?

 156 3 A. No, I do not recall.

 156 4 Q. It says, "We need to put a test

 156 5 equipment maintenance program in place to

 156 6 avoid this situation."

 156 7 Do you know if that was ever

 156 8 done?

 156 9 A. I do not recall.

 156 10 Q. Let me ask you the affirmative.

 156 11 Do you affirmatively remember

 156 12 that being done, putting a maintenance --

 156 13 putting a test equipment maintenance program

 156 14 in place at TJR?

 156 15 A. I do not recall.

 156 16 Q. You were a manager at Aearo,

 156 17 weren't you?

 156 18 A. Yes.

 156 19 Q. You can agree with me that

 156 20 having testing equipment calibrated is

 156 21 important, isn't it?

 156 22 A. I would agree that having test

 156 23 equipment is important.

 156 24 Q. Having test equipment that

 156 25 works properly is important, too, correct?

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 15 of 151
Klun, Robert 6-24-2020 15

 157 1 A. Correct.

 157 2 Q. It says, "Because of equipment

 157 3 measurement problems, TJR continues to

 157 4 operate with a quality waiver."

 157 5 What's a quality waiver?

 157 6 A. It means if something is not

 157 7 measured -- there's a problem with the

 157 8 measurements but the product is okay, you can

 157 9 release on waiver.

 157 10 Q. Well, give me an example of a

 157 11 problem with a measurement.

 157 12 A. Give you an example of what?

 157 13 Say it again, sir?

 157 14 Q. Give me an example of a problem

 157 15 with a measurement. Measurement.

 157 16 A. Can you rephrase the question?

 157 17 Q. Sure.

 157 18 All I'm trying to get from you

 157 19 is an example of a problem with the

 157 20 measurement of a product that might be

 157 21 released on waiver because of that.

 157 22 A. Maybe a product has to weigh

 157 23 something so you -- somebody's balance or

 157 24 scales aren't working correctly.

 157 25 Q. Could it mean that the product

 158 1 is out of spec?

 158 2 A. It could or it couldn't.

 158 3 Q. Maybe? Maybe not?

 158 4 A. Correct.

 158 5 Q. All right. "With rapidly

 158 6 growing Combat Arms volume, do we have enough

 158 7 equipment available in order to meet the

 158 8 testing demands?"

 158 9 And that's a question, correct?

 158 10 A. That's a question.

 158 11 Q. Do you remember ever finding

 158 12 out the answer to the question?

 158 13 A. I do not recall.

 158 14 Q. "Equipment returned to hearing

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 16 of 151
Klun, Robert 6-24-2020 16

 158 15 R&D has shown signs of significant wear and

 158 16 tear. We have sent the equipment out to the

 158 17 vendor for repair. Are operators properly

 158 18 trained and/or is refresher training done?"

 158 19 That's another question, right?

 158 20 A. That's the question. That's

 158 21 what the document says.

 158 22 Q. Now, if I'm understanding what

 158 23 it's saying here, the equipment is talking

 158 24 about -- or is either like testing or

 158 25 measurement equipment that is used to -- in

 159 1 the assembly of these Combat Arms Earplugs.

 159 2 Am I right?

 159 3 MR. FIELDS: Objection. Form.

 159 4 THE WITNESS: That's what the

 159 5 document says.

 159 6 QUESTIONS BY MR. PIRTLE:

 159 7 Q. All right. Do you know what

 159 8 the signs of significant wear and tear were?

 159 9 A. I do not know.

 159 10 Q. As far as corrective actions in

 159 11 response to this e-mail, did you find out

 159 12 whether operators were properly trained?

 159 13 A. I do not recall.

 159 14 Q. Do you recall whether or not

 159 15 you found out whether refresher training was

 159 16 done?

 159 17 A. I do not recall.

 159 18 Q. You can agree with me as a

 159 19 manager at 3M it is important to have

 159 20 operators properly trained on equipment,

 159 21 correct?

 159 22 A. Agreed.

161:1 - 161:7 Klun, Robert 6-24-2020

 161 1 By the way, you have a Ph.D.,

 161 2 don't you?

 161 3 A. That's correct.

 161 4 Q. In what?

 161 5 A. Chemistry.

Re: [161:1-161:7]

Improper Counter Designation, 

401/402/403, Improper Witness 

Bolstering

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 17 of 151
Klun, Robert 6-24-2020 17

 161 6 Q. What kind of chemistry?

 161 7 A. Organic chemistry.

162:19 - 164:3 Klun, Robert 6-24-2020

 162 19 Q. You were above Mr. Kieper?

 162 20 A. In the organizational chart,

 162 21 yes.

 162 22 Q. "Bob Z to evaluate each

 162 23 operator to assure the operator knows and is

 162 24 following the procedure and use equipment

 162 25 properly."

 163 1 It says, "Bob Z to evaluate

 163 2 testing load on existing equipment and

 163 3 whether or not more equipment is needed."

 163 4 And "Bob Z to evaluate and set

 163 5 up a rotational plan to assure equipment is

 163 6 calibrated on a rotating basis to assure at

 163 7 least one -- to assure at least two of the

 163 8 three current test devices are operational

 163 9 and get the third device recalibrated and/or

 163 10 repaired, quotation marks, testing equipment

 163 11 maintenance program."

 163 12 Did I read that reasonably

 163 13 correct?

 163 14 A. Yes, that's what the document

 163 15 says.

 163 16 Q. Do you know if any of that was

 163 17 ever done?

 163 18 A. I do not recall.

 163 19 Q. It says, "R&D/quality position.

 163 20 For many reasons, it has taken over six

 163 21 months to address equipment calibration

 163 22 problems for the Combat Arms product."

 163 23 Now, we're talking about Combat

 163 24 Arms version 2, aren't we?

 163 25 A. The document doesn't state it.

 164 1 Q. But the fact --

 164 2 A. It says "for the Combat Arms

 164 3 product."

Re: [162:22-164:3]

Def Objection - 3M MIL No. 

26

Re: [162:22-

164:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [162:22-164:3]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 18 of 151
Klun, Robert 6-24-2020 18

164:4 - 164:8 Klun, Robert 6-24-2020

 164 4 Q. Looking at the date of your

 164 5 e-mail, November the 19th of 2004, the only

 164 6 Combat Arms product that was being made was

 164 7 version 2, wasn't it?

 164 8 A. That, I can't recall.

Re: [164:4-164:8]

Plt Objection - Improper 

Counter Designation

Re: [164:4-

164:8]

Plt Objection -

improper counter 

per PTO 64

OVERRULED

164:13 - 166:14 Klun, Robert 6-24-2020

 164 13 QUESTIONS BY MR. PIRTLE:

 164 14 Q. What it says here is

 164 15 "calibration problems for the Combat Arms

 164 16 product," right?

 164 17 A. That's what the document says,

 164 18 yes.

 164 19 Q. "Now we have more quality

 164 20 testing problems and releasing product under

 164 21 waiver. We believe this is not an acute

 164 22 problem but rather a chronic problem that

 164 23 needs to be fixed now."

 164 24 Did I read that reasonably

 164 25 correct?

 165 1 A. You read that -- you read

 165 2 correctly what the document says.

 165 3 Q. All right. Whoever wrote this

 165 4 document underlined the word "acute" and the

 165 5 word "chronic," correct?

 165 6 A. That's what the document says.

 165 7 Q. And of course, your reading of

 165 8 the document comports with mine that acute

 165 9 would mean a single or a limited instrument,

 165 10 and chronic meaning a long-term problem,

 165 11 correct?

 165 12 MR. FIELDS: Objection. Form.

 165 13 THE WITNESS: I'd agree with

 165 14 chronic versus acute.

 165 15 QUESTIONS BY MR. PIRTLE:

 165 16 Q. "We need team perspective to

 165 17 take a holistic look at the Combat Arms

 165 18 quality program at TJR."

 165 19 That means the whole team needs

Re: [164:14-166:14]

Def Objection - 3M MIL No. 

26

Re: [165:7-165:14]

Def Objection - Misstates; 

Argumentative (611, 403); 

Foundation (602)

Re: [166:10-166:14]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [164:14-

166:14]

Def Objection -

3M MIL No. 26

Sustained

Re: [165:7-

165:14]

Def Objection -

Misstates; 

Argumentative 

(611, 403); 

Foundation (602)

Sustained

Re: [166:10-

166:14]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Sustained

Re: [164:13-166:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 19 of 151
Klun, Robert 6-24-2020 19

 165 20 to look at it?

 165 21 A. That's what the document says.

 165 22 Q. "We need to fix the equipment,

 165 23 ensure people are properly trained and

 165 24 procedures are being followed and/or

 165 25 modified. A joint visit by Bob and Ron to

 166 1 make a big improvement in our quality program

 166 2 is needed."

 166 3 Did I read that reasonably

 166 4 correct?

 166 5 A. Yes, you read that correctly.

 166 6 It's what the document says.

 166 7 Q. Do you know when or if the

 166 8 problems were ever fixed?

 166 9 A. I do not recall.

 166 10 Q. Do you know how long the

 166 11 problems persisted at TJR?

 166 12 MR. FIELDS: Objection. Form.

 166 13 Sorry, objection. Form.

 166 14 THE WITNESS: I do not recall.

196:24 - 197:4 Klun, Robert 6-24-2020

 196 24 Q. All right. I'm just wondering,

 196 25 going back to the subjectivity of the test,

 197 1 did it ever occur to you that some of these

 197 2 3M employees might actually be working on

 197 3 products that they're testing?

 197 4 A. I do not recall. Do not know.

Re: [196:24-197:4]

Plt Objection - Improper 

Counter Designation

Re: [196:24-197:4]

602

SUSTAINED

198:14 - 198:23 Klun, Robert 6-24-2020

 198 14 Q. Mr. Klun, my name is Neil

 198 15 Overholtz, and like Mr. Pirtle told you at

 198 16 the beginning of this deposition, I also

 198 17 represent the men and women who serve in the

 198 18 United States military that have brought

 198 19 claim against 3M and Aearo, your former

 198 20 employers, regarding the Combat Arms

 198 21 version 2.

 198 22 Do you understand that?

 198 23 A. Yes.

Re: [198:14-198:23]

Def Objection - Relevance 

(401, 402); Prejudice (403); 3M 

MIL No. 30

Re: [198:14-

198:23]

Def Objection -

Relevance (401, 

402); Prejudice 

(403); 3M MIL 

No. 30

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 20 of 151
Klun, Robert 6-24-2020 20

200:8 - 200:11 Klun, Robert 6-24-2020

 200 8 You recall being involved early

 200 9 on in design meetings related to the Combat

 200 10 Arms version 2, right?

 200 11 A. I do not recall.

Re: [200:8-200:11]

Plt Objection - Improper 

Counter Designation

Re: [200:8-

200:11]

Plt Objection -

improper counter 

per PTO 64

SUSTAINED

Re: [200:8-200:11]

602

SUSTAINED

200:12 - 200:16 Klun, Robert 6-24-2020

 200 12 Q. Okay. Well, you've worked on

 200 13 design and development plans throughout your

 200 14 career at Aearo and 3M; is that right?

 200 15 A. I wouldn't say I did design and

 200 16 development plans.

Re: [200:12-200:16]

Plt Objection - Improper 

Counter Designation

Re: [200:12-

200:16]

Plt Objection -

improper counter 

per PTO 64

SUSTAINED

201:4 - 201:13 Klun, Robert 6-24-2020

 201 4 Q. This is a slide that I made,

 201 5 and I'm asking you: Do you agree that part

 201 6 of developing a product includes developing a

 201 7 quality plan?

 201 8 A. Yes.

 201 9 Q. Is it important that the

 201 10 products that Aearo and 3M are going to sell,

 201 11 especially to our fine men and women that

 201 12 serve in the United States military, that

 201 13 those products are of good quality?

Re: [201:9-201:16]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602)

Re: [201:9-

201:16]

Def Objection -

Vague; 

Compound (611, 

403); Foundation 

(602)

Sustained

201:15 - 201:16 Klun, Robert 6-24-2020

 201 15 THE WITNESS: I have no

 201 16 comment.

Re: [201:9-201:16]

Def Objection - Vague; 

Compound (611, 403); 

Foundation (602)

Re: [201:9-

201:16]

Def Objection -

Vague; 

Compound (611, 

403); Foundation 

(602)

Sustained

201:20 - 201:25 Klun, Robert 6-24-2020

 201 20 Was it important at Aearo and

 201 21 3M that the products that you were developing

 201 22 and selling to the United States military to

 201 23 be used by the service people defending our

 201 24 country, that those products be of good

 201 25 quality?

Re: [201:20-202:2]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [201:20-

202:2]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 21 of 151
Klun, Robert 6-24-2020 21

202:2 - 202:14 Klun, Robert 6-24-2020

 202 2 THE WITNESS: Yes.

 202 3 QUESTIONS BY MR. OVERHOLTZ:

 202 4 Q. Okay. And then part of the

 202 5 program, when you design a product and you

 202 6 get it developed, is you want to sell the

 202 7 plugs, right?

 202 8 A. Yes.

 202 9 Q. Okay. Now, as part of

 202 10 designing a product like a Combat Arms

 202 11 Earplug and selling those earplugs, is it

 202 12 important that you have quality assurance

 202 13 testing of the product?

 202 14 A. Quality control testing.

Re: [201:20-202:2]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [202:9-202:14]

Def Objection - 3M MIL No. 

26

Re: [201:20-

202:2]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

Re: [202:9-

202:14]

Def Objection -

3M MIL No. 26

Overruled

202:19 - 202:22 Klun, Robert 6-24-2020

 202 19 Q. And you want to make sure the

 202 20 product's assembled right, manufactured right

 202 21 and that it works; is that fair?

 202 22 A. That would be fair.

Re: [202:19-202:22]

Def Objection - 3M MIL No. 

26

Re: [202:19-

202:22]

Def Objection -

3M MIL No. 26

Overruled

204:6 - 204:12 Klun, Robert 6-24-2020

 204 6 Q. Okay. So Kaizen was a quality

 204 7 improvement tool so that the products that

 204 8 you were selling could be assured to be of

 204 9 good quality; is that right?

 204 10 A. I don't agree completely. It's

 204 11 more than just the product. It could be your

 204 12 work process, simple things like materials.

Re: [204:6-204:12]

Plt Objection - Improper 

Counter Designation

Re: [204:6-

204:12]

Plt Objection -

improper counter 

per PTO 64

SUSTAINED

206:10 - 206:21 Klun, Robert 6-24-2020

 206 10 So when the Combat Arms was

 206 11 being developed in 1999 when you had begun

 206 12 working at Aearo in the laboratory

 206 13 department, was one of the goals for the

 206 14 Combat Arms version 2 to avoid any --

 206 15 A. In the -- I would -- I wasn't

 206 16 involved in the lab until 2000, 2001,

 206 17 somewhere in that time frame.

 206 18 Q. Okay. You were involved with

 206 19 the Combat Arms, though, back as early as

Re: [206:10-206:21]

Improper Counter Designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 22 of 151
Klun, Robert 6-24-2020 22

 206 20 1999, right?

 206 21 A. I disagree.

206:22 - 207:9 Klun, Robert 6-24-2020

 206 22 Q. Okay. Well, let me ask you

 206 23 this: Do you remember that one of the goals

 206 24 of the development plan for the Combat Arms

 206 25 version 2 in 1999 was to avoid any incorrect

 207 1 assembly and to have zero defects?

 207 2 A. I do not recall that.

 207 3 Q. All right. You think that

 207 4 would be a good goal to have for an earplug

 207 5 that's going to be used by servicemen and

 207 6 women in the field?

 207 7 A. Yes.

 207 8 (Klun Exhibit 20 marked for

 207 9 identification.)

207:15 - 207:18 Klun, Robert 6-24-2020

 207 15 this is a May 20, 1999 meeting memorandum

 207 16 that lists yourself from an A. Shaver, and

 207 17 the subject being the Combat Arms project.

 207 18 Do you see that?

207:25 - 208:1 Klun, Robert 6-24-2020

 207 25 THE WITNESS: Yes, I see the

 208 1 document.

208:9 - 208:20 Klun, Robert 6-24-2020

 208 9 Q. And you were sent this memo,

 208 10 B. Klun, right?

 208 11 A. That's what the document says.

 208 12 Q. And we talked about B. Myers.

 208 13 That would be Brian Myers from marketing,

 208 14 right?

 208 15 A. Yes.

 208 16 Q. How about S. Todor? Is that

 208 17 Steve Todor?

 208 18 A. Yes.

 208 19 Q. What was his role?

 208 20 A. Quality.

209:22 - 210:19 Klun, Robert 6-24-2020

 209 22 Q. All right. And you'd expect

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 23 of 151
Klun, Robert 6-24-2020 23

 209 23 these memorandum from 1999 that were written

 209 24 by people like Annette Shaver to you to

 209 25 accurately reflect what was going on at the

 210 1 time, right?

 210 2 A. I go with what the document

 210 3 says.

 210 4 Q. I mean, you didn't have any

 210 5 reason to believe that Annette Shaver would

 210 6 have misrepresented what was happening at the

 210 7 time, right?

 210 8 A. No, I agree with what the

 210 9 document says.

 210 10 Q. Okay. And so seeing this memo,

 210 11 you can see that you were involved in early

 210 12 meetings in May of 1999 regarding assembly

 210 13 and avoiding any defects with the Combat Arms

 210 14 assembly, right?

 210 15 A. It doesn't say anything about

 210 16 meetings. The document says, "technical and

 210 17 manufacturing will address assembly to avoid

 210 18 incorrect assembly, with the goal being zero

 210 19 defects."

211:19 - 211:25 Klun, Robert 6-24-2020

 211 19 Q. You recall -- you recall

 211 20 learning that Aearo was going to get the

 211 21 filters from the ISL in France?

 211 22 A. I do not recall that.

 211 23 Q. Did you learn that at some

 211 24 point in time?

 211 25 A. No, I -- I don't recall that.

Re: [211:19-211:25]

Plt Objection - Improper 

Counter Designation

Re: [211:19-

211:25]

Plt Objection -

improper counter 

per PTO 64

SUSTAINED

212:10 - 214:24 Klun, Robert 6-24-2020

 212 10 MR. OVERHOLTZ: It's a

 212 11 different document. I'm going to mark

 212 12 BK-151 as Exhibit 21.

 212 13 (Klun Exhibit 21 marked for

 212 14 identification.)

 212 15 QUESTIONS BY MR. OVERHOLTZ:

 212 16 Q. And this is another meeting

 212 17 memorandum from Annette Shaver from July 21,

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 24 of 151
Klun, Robert 6-24-2020 24

 212 18 1999.

 212 19 Do you see that, Mr. Klun?

 212 20 A. Yes, I see that's what the

 212 21 document says.

 212 22 Q. Right. And it says that a

 212 23 meeting was held on July 14th of 1999, right?

 212 24 A. That's what the document says.

 212 25 Q. And the attending were

 213 1 K. Teeters, S. Todor, A. Shaver and yourself,

 213 2 right?

 213 3 A. Yes.

 213 4 Q. Along with an --

 213 5 A. Plus a few others.

 213 6 Q. Right. Along with a few

 213 7 others, including Brian Myers from marketing,

 213 8 right?

 213 9 A. Correct.

 213 10 Q. Okay. And if you can look with

 213 11 me at the -- further down in this document on

 213 12 the next slide, there's a section called

 213 13 Product Design, Preliminary.

 213 14 And it says, "The diameter of

 213 15 the filter versus the diameter of the stem

 213 16 was discussed. According to currently

 213 17 available drawings, some filter could be too

 213 18 large for the stem if the maximum tolerance

 213 19 is allowed."

 213 20 Do you see that?

 213 21 A. Yeah, I see what the document

 213 22 says.

 213 23 Q. And so at this meeting that you

 213 24 were at back in July of 1999, it was

 213 25 discussed that the filter being too large for

 214 1 the stem could mean the inability to assembly

 214 2 {sic} or cracking the stem, right?

 214 3 A. That's what the document says,

 214 4 "could mean," "could mean."

 214 5 Q. Do you know if the drawings

 214 6 were ever changed or these tolerances were

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 25 of 151
Klun, Robert 6-24-2020 25

 214 7 ever changed to make sure that this didn't

 214 8 happen?

 214 9 A. I do not know nor recall.

 214 10 Q. I mean, who would have been in

 214 11 charge of these drawings back in 1999?

 214 12 A. The R&D department.

 214 13 Q. Would that have been Bob Falco

 214 14 and Doty?

 214 15 A. Whoever was in Dick Knauer's

 214 16 shop --

 214 17 Q. Okay.

 214 18 A. -- working on it.

 214 19 Q. And do you believe that Bob

 214 20 Falco or Doty ever changed any of these

 214 21 drawings that changed the tolerances for

 214 22 these filters and these plastic stems so that

 214 23 this stem cracking wouldn't be a problem?

 214 24 A. I do not know nor recall.

214:25 - 215:8 Klun, Robert 6-24-2020

 214 25 Q. Okay. Now, if we can go

 215 1 forward in time -- this is still summer

 215 2 of 1999. By this point in time, by summer

 215 3 of 1999, the Combat Arms project had become

 215 4 very important for you; is that right?

 215 5 A. I have no -- I don't recall how

 215 6 important or not important it was.

 215 7 Q. Well, let's look and see what

 215 8 you wrote.

215:14 - 215:19 Klun, Robert 6-24-2020

 215 14 Q. We'll mark as Exhibit Number 23

 215 15 {sic}, and this is BK-152. This is an e-mail

 215 16 from July 23, 1999.

 215 17 Do you see that?

 215 18 A. Yes, I see the e-mail on the

 215 19 screen.

216:14 - 217:15 Klun, Robert 6-24-2020

 216 14 Q. So two days after receiving

 216 15 those meeting minutes, you write an e-mail to

 216 16 Brian Myers over in marketing regarding the

Re: [217:11-217:15]

Def Objection - Relevance 

(401, 402); Argumentative 

(611, 403)

Re: [217:11-

217:15]

Def Objection -

Relevance (401, 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 26 of 151
Klun, Robert 6-24-2020 26

 216 17 Combat Arms review meeting, right?

 216 18 A. That's what this document says.

 216 19 Q. And you say, "Attached is an

 216 20 agenda for our Combat Arms meeting on

 216 21 July 30. Please work hard to complete the

 216 22 action items from our last meeting. We need

 216 23 to make progress toward project

 216 24 implementation."

 216 25 Right?

 217 1 A. That's what the document says.

 217 2 Q. And that's because you had

 217 3 learned that this project, through these

 217 4 design meeting minutes, was going to be

 217 5 extremely profitable for Aearo, right?

 217 6 A. I don't agree with that.

 217 7 Q. And sales orders were already

 217 8 coming in, right?

 217 9 A. I have no recall or knowledge

 217 10 of that.

 217 11 (Klun Exhibit 23 marked for

 217 12 identification.)

 217 13 QUESTIONS BY MR. OVERHOLTZ:

 217 14 Q. All right. Well, let's see

 217 15 what we can find out about that.

402); 

Argumentative 

(611, 403)

Sustained

218:5 - 218:10 Klun, Robert 6-24-2020

 218 5 Q. If we go to page 6, you see

 218 6 that there is a list of who the project

 218 7 manager is, and that's Brian Myers from

 218 8 marketing, right?

 218 9 A. Yes, that's what the document

 218 10 says. He's the project manager.

219:2 - 219:25 Klun, Robert 6-24-2020

 219 2 Q. Bob Klun, right?

 219 3 A. In quality.

 219 4 Q. So you were in quality then,

 219 5 right?

 219 6 A. Correct.

 219 7 Q. Okay. So just so -- we can go

 219 8 up -- go back up to page -- the top of the

Re: [219:18-219:25]

Def Objection - Misstates; 

Vague (611, 403); Foundation 

(602); Prejudice (403); 

Relevance (401, 402)

Re: [219:18-

219:25]

Def Objection -

Misstates; Vague 

(611, 403); 

Foundation 

(602); Prejudice 

(403); Relevance 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 27 of 151
Klun, Robert 6-24-2020 27

 219 9 page there, the slide before.

 219 10 The project we're talking about

 219 11 here is the Combat Arms plug, right?

 219 12 A. That's what the document says.

 219 13 Q. And under Description and

 219 14 Positioning, it said this was going to be a

 219 15 nonlinear plug sold to the military and as a

 219 16 shooter's plug, right?

 219 17 A. That's what the document says.

 219 18 Q. And so you guys knew back in

 219 19 July of '99 that you were going to sell this

 219 20 both to the military and on the commercial

 219 21 shelves for people that could use on shooting

 219 22 ranges, right?

 219 23 MR. FIELDS: Objection to form.

 219 24 THE WITNESS: I personally

 219 25 don't recall.

(401, 402)

Overruled

220:2 - 220:3 Klun, Robert 6-24-2020

 220 2 Q. You don't remember that?

 220 3 A. No.

220:4 - 220:7 Klun, Robert 6-24-2020

 220 4 Q. But you'd expect the documents

 220 5 to be accurate that were being circulated

 220 6 among your team back in '99, right?

 220 7 A. That's what the document says.

223:8 - 223:13 Klun, Robert 6-24-2020

 223 8 Q. You were forecasting in July

 223 9 of '99 when you were having these design and

 223 10 development meetings and you told Brian

 223 11 Myers, hey, we need to get this project

 223 12 going, that you were going to make $3.90

 223 13 profit per pair of plugs, right?

Re: [223:8-223:13]

Improper Counter Designation

SUSTAINED

223:15 - 223:18 Klun, Robert 6-24-2020

 223 15 THE WITNESS: Right. I don't

 223 16 agree with what you said that I told

 223 17 Brian Myers. The words you're using,

 223 18 I don't agree with that.

223:20 - 224:6 Klun, Robert 6-24-2020

 223 20 Q. Yeah, let's just look -- just

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 28 of 151
Klun, Robert 6-24-2020 28

 223 21 go back, just refresh ourselves what you

 223 22 said.

 223 23 You told Brian on slide 21

 223 24 that, "Please" -- one more slide up, Zach.

 223 25 "Please work hard to complete

 224 1 the action items from our last meeting. We

 224 2 need to make progress toward project

 224 3 implementation."

 224 4 That's what you told Brian,

 224 5 right?

 224 6 A. Right.

224:23 - 225:7 Klun, Robert 6-24-2020

 224 23 Q. And here this shows that the

 224 24 percent margin that you were forecasting for

 224 25 these Combat Arms Earplugs was 78 percent,

 225 1 right?

 225 2 A. That's what the document says.

 225 3 Q. And so in year one, you're

 225 4 forecasting 1.2 million in profits; year two,

 225 5 1.6 million in profits; and year three, 2

 225 6 million in profits, right?

 225 7 A. That's what the document says.

Re: [224:23-225:7]

Def Objection - 3M MIL No. 7

Re: [224:23-

225:7]

Def Objection -

3M MIL No. 7

Overruled

Re: [224:23-225:7]

Baker MIL 1

Prior ruling 

stands.

227:2 - 227:5 Klun, Robert 6-24-2020

 227 2 Q. But you told me earlier that

 227 3 part of the process is you got to do quality

 227 4 checks on these devices, right, before you

 227 5 sell them?

Re: [227:2-227:5]

Plt Objection - Improper 

Counter Designation

Re: [227:2-

227:5]

Plt Objection -

improper counter 

per PTO 64

SUSTAINED

227:7 - 227:9 Klun, Robert 6-24-2020

 227 7 THE WITNESS: I'm focusing on

 227 8 specifying purchase tools. That's not

 227 9 a quality function, purchasing tools.

Re: [227:7-227:9]

Plt Objection - Improper 

Counter Designation

Re: [227:7-

227:9]

Plt Objection -

improper counter 

per PTO 64

SUSTAINED

230:3 - 230:8 Klun, Robert 6-24-2020

 230 3 (Klun Exhibit 24 marked for

 230 4 identification.)

 230 5 QUESTIONS BY MR. OVERHOLTZ:

 230 6 Q. So we'll mark exhibit BK-153 as

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 29 of 151
Klun, Robert 6-24-2020 29

 230 7 Exhibit 24. It's an August 3, 1999

 230 8 memorandum to several people.

230:12 - 232:11 Klun, Robert 6-24-2020

 230 12 Q. Okay. So at the top, you see

 230 13 that Annette Shaver in quality e-mails -- or

 230 14 sends this memo to yourself as well as

 230 15 several other people, including Brian Myers

 230 16 and Steve Todor and Dick Knauer, and the

 230 17 subject is the Combat Arms plugs.

 230 18 Do you see that?

 230 19 A. Yes.

 230 20 Q. And it says, "A design review

 230 21 meeting was held on July 30, 1999, to discuss

 230 22 the progress towards the manufacture and

 230 23 delivery of Combat Arms Earplugs," right?

 230 24 A. Yes.

 230 25 Q. And July 30th of '99, is the

 231 1 date of the agenda that you had sent Brian

 231 2 Myers that we looked at at the last exhibit,

 231 3 right?

 231 4 A. Yes.

 231 5 Q. Okay. So I want to turn over

 231 6 to the second page, if we can, and there's a

 231 7 section called Design Acceptance Criteria.

 231 8 Do you see that?

 231 9 A. Yes.

 231 10 Q. Okay. And it says, "The test

 231 11 to be utilized has been identified as an

 231 12 acoustic resistance test."

 231 13 Do you see that?

 231 14 A. Yes.

 231 15 Q. Acoustic resistance test.

 231 16 That's talking about those ARC machines that

 231 17 Mr. Pirtle showed you that memo that you sent

 231 18 about Ron Kieper and Rob Zielinski going down

 231 19 to Mexico to check on them.

 231 20 Do you recall that?

 231 21 A. Yes.

 231 22 Q. Okay. So the acoustic

Re: [231:10-234:14]

Def Objection - 3M MIL No. 

26

Re: [232:10-232:13]

Def Objection - Foundation 

(602); Vague (611, 403)

Re: [231:10-

234:14]

Def Objection -

3M MIL No. 26

Overruled

Re: [232:10-

232:13]

Def Objection -

Foundation 

(602); Vague 

(611, 403)

Sustained

Re: [231:10-234:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 30 of 151
Klun, Robert 6-24-2020 30

 231 23 resistance test was also known as the ARC

 231 24 machine, right?

 231 25 A. Yes.

 232 1 Q. It says, "The equipment is

 232 2 currently in the lab at E-A-R. This

 232 3 equipment will be used for the first order."

 232 4 Right?

 232 5 A. Yes.

 232 6 Q. "New test equipment will cost

 232 7 approximately $700."

 232 8 Right?

 232 9 A. Yeah, that's what it says.

 232 10 Q. That's not very expensive for a

 232 11 quality control test device, right?

232:13 - 232:19 Klun, Robert 6-24-2020

 232 13 THE WITNESS: I have no idea.

 232 14 QUESTIONS BY MR. OVERHOLTZ:

 232 15 Q. I mean, you feel like Aearo

 232 16 could afford that back then in '99 since we

 232 17 saw you-all were projecting you guys were

 232 18 going to make about $5 million in three years

 232 19 in profits on the Combat Arms?

Re: [231:10-234:14]

Def Objection - 3M MIL No. 

26

Re: [232:10-232:13]

Def Objection - Foundation 

(602); Vague (611, 403)

Re: [232:13-232:22]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [232:15-232:22]

Def Objection - 3M MIL No. 7; 

3M MIL No. 26

Re: [231:10-

234:14]

Def Objection -

3M MIL No. 26

Overruled

Re: [232:10-

232:13]

Def Objection -

Foundation 

(602); Vague 

(611, 403)

Sustained

Re: [232:13-

232:22]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Sustained

Re: [232:15-

232:22]

Def Objection -

3M MIL No. 7; 

3M MIL No. 26

Sustained

Re: [231:10-234:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 31 of 151
Klun, Robert 6-24-2020 31

232:21 - 234:2 Klun, Robert 6-24-2020

 232 21 THE WITNESS: It says, the

 232 22 "test equipment will cost $700."

 232 23 QUESTIONS BY MR. OVERHOLTZ:

 232 24 Q. Right.

 232 25 So back in '99 when you were in

 233 1 quality, you think Aearo would have had no

 233 2 problem affording however many new machines

 233 3 they might need to make sure these earplugs

 233 4 were assembled and manufactured to good

 233 5 quality standards?

 233 6 A. Can you repeat -- rephrase the

 233 7 question?

 233 8 Q. Sure.

 233 9 You worked at Aearo back in

 233 10 1999, right, and you're running this meeting,

 233 11 right?

 233 12 A. Am I running it, or is Annette

 233 13 running it?

 233 14 Q. Well, Annette sends the memo,

 233 15 but you sent the agenda, and it said you were

 233 16 going to facilitate going through the agenda.

 233 17 Remember?

 233 18 A. All right. Okay. Yes.

 233 19 Q. Okay. And so back then when

 233 20 you were doing this and having these meetings

 233 21 about the Combat Arms plugs, you think that

 233 22 Aearo could have afforded $700 per test

 233 23 equipment to buy however many new machines

 233 24 they needed to make sure that these Combat

 233 25 Arms plugs for the soldiers would be

 234 1 manufactured and assembled to good quality

 234 2 standards?

Re: [231:10-234:14]

Def Objection - 3M MIL No. 

26

Re: [232:13-232:22]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [232:15-232:22]

Def Objection - 3M MIL No. 7; 

3M MIL No. 26

Re: [233:19-234:5]

Def Objection - Vague; 

Compound (611, 403)

Re: [231:10-

234:14]

Def Objection -

3M MIL No. 26

Overruled

Re: [232:13-

232:22]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Sustained

Re: [232:15-

232:22]

Def Objection -

3M MIL No. 7; 

3M MIL No. 26

Sustained

Re: [233:19-

234:5]

Def Objection -

Vague; 

Compound (611, 

403)

Sustained

Re: [231:10-234:14]

Baker MIL 1

Prior ruling 

stands.

234:4 - 234:8 Klun, Robert 6-24-2020

 234 4 THE WITNESS: $700 for the

 234 5 equipment.

 234 6 QUESTIONS BY MR. OVERHOLTZ:

 234 7 Q. So that's a yes?

 234 8 A. I would assume, yes.

Re: [231:10-234:14]

Def Objection - 3M MIL No. 

26

Re: [233:19-234:5]

Def Objection - Vague; 

Compound (611, 403)

Re: [231:10-

234:14]

Def Objection -

3M MIL No. 26

Overruled

Re: [231:10-234:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 32 of 151
Klun, Robert 6-24-2020 32

Re: [233:19-

234:5]

Def Objection -

Vague; 

Compound (611, 

403)

Sustained

235:1 - 236:6 Klun, Robert 6-24-2020

 235 1 QUESTIONS BY MR. OVERHOLTZ:

 235 2 Q. All right. And these quality

 235 3 assurance test machines, they were important,

 235 4 right?

 235 5 A. It was part of the test

 235 6 equipment.

 235 7 Q. These ARC boxes, they were

 235 8 important test equipment for the company that

 235 9 was going to assemble and make these plugs,

 235 10 right?

 235 11 A. Test equipment is important.

 235 12 Q. Okay. And because one of the

 235 13 things -- Zach, if we can bring up slide 28.

 235 14 And again, Mr. Klun, this is a

 235 15 slide that I made. Okay? It's going to be

 235 16 up on your screen.

 235 17 One of the things that you knew

 235 18 is that without proper calibration and

 235 19 working ARC boxes, Aearo cannot confirm that

 235 20 the Combat Arms version 2 meets quality

 235 21 standards, right?

 235 22 A. This is a slide you created?

 235 23 Q. It is. And I'm asking: Is

 235 24 that something you knew?

 235 25 A. I would say that's more

 236 1 specific.

 236 2 Q. Okay. But do you agree that if

 236 3 these ARC boxes weren't working or weren't

 236 4 calibrated, then Aearo can't confirm that the

 236 5 Combat Arms version 2s met quality standards?

 236 6 Right?

Re: [235:1-236:14]

Def Objection - 3M MIL No. 

26

Re: [236:2-236:8]

Def Objection - Vague (611, 

403); Foundation (602); 702

Re: [235:1-

236:14]

Def Objection -

3M MIL No. 26

Overruled

Re: [236:2-

236:8]

Def Objection -

Vague (611, 

403); Foundation 

(602); 702

Overruled

Re: [235:1-238:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 33 of 151
Klun, Robert 6-24-2020 33

236:8 - 236:14 Klun, Robert 6-24-2020

 236 8 THE WITNESS: I'll agree.

 236 9 QUESTIONS BY MR. OVERHOLTZ:

 236 10 Q. Okay. And that's why -- and

 236 11 Mr. Pirtle showed you this. I think it was

 236 12 exhibit -- was it Exhibit 17, your e-mail

 236 13 from November 19th of 2004, to Ron Kieper

 236 14 regarding Bob and Ron traveling down to TJR?

Re: [235:1-236:14]

Def Objection - 3M MIL No. 

26

Re: [236:2-236:8]

Def Objection - Vague (611, 

403); Foundation (602); 702

Re: [235:1-

236:14]

Def Objection -

3M MIL No. 26

Overruled

Re: [236:2-

236:8]

Def Objection -

Vague (611, 

403); Foundation 

(602); 702

Overruled

Re: [235:1-238:14]

Baker MIL 1

Prior ruling 

stands.

236:18 - 238:4 Klun, Robert 6-24-2020

 236 18 QUESTIONS BY MR. OVERHOLTZ:

 236 19 Q. You send that memo, along with

 236 20 the plans for Bob and Ron to go down to TJR

 236 21 in Mexico to check on these ARC machines in

 236 22 2004, right?

 236 23 A. Yes.

 236 24 Q. And because -- if we go to

 236 25 slide 31, Zach.

 237 1 You, in that memo that you

 237 2 sent, the quality problems that TJR said

 237 3 that -- that under the test equipment, the

 237 4 machines were due for calibration in May

 237 5 of '03, as stipulated in the specified

 237 6 operating procedure, but even a year later

 237 7 were not calibrated.

 237 8 That's a problem, right?

 237 9 A. At TJR, not calibrated.

 237 10 Q. Right.

 237 11 They weren't calibrated at TJR,

 237 12 and that was a quality problem, right?

 237 13 A. So equipment -- test equipment

 237 14 and calibration issue.

 237 15 Q. Okay. And Mr. Pirtle asked you

 237 16 about the waiver that had been operated under

 237 17 for six months to address backorder issues

 237 18 under number 2.

Re: [236:18-240:9]

Def Objection - 3M MIL No. 

26

Re: [237:15-238:2]

Def Objection - Cumulative 

(403)

Re: [238:3-238:7]

Def Objection - Vague; 

Misstates (611, 403)

Re: [236:18-

240:9]

Def Objection -

3M MIL No. 26

Overruled

Re: [237:15-

238:2]

Def Objection -

Cumulative (403)

Overruled

Re: [238:3-

238:7]

Def Objection -

Vague; Misstates 

(611, 403)

Overruled

Re: [235:1-238:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 34 of 151
Klun, Robert 6-24-2020 34

 237 19 Do you recall those questions?

 237 20 A. Yes.

 237 21 Q. And number 3, because of the

 237 22 equipment measurement problems with those ARC

 237 23 machines, TJR continues to operate with a

 237 24 quality waiver.

 237 25 Do you remember Mr. Pirtle

 238 1 asking you about that?

 238 2 A. Yes.

 238 3 Q. Those waivers, you approved

 238 4 those waivers, right?

238:6 - 238:11 Klun, Robert 6-24-2020

 238 6 THE WITNESS: A team approves a

 238 7 waiver of various functions.

 238 8 QUESTIONS BY MR. OVERHOLTZ:

 238 9 Q. Okay. And those waivers would

 238 10 have been approved under your direction,

 238 11 right?

Re: [236:18-240:9]

Def Objection - 3M MIL No. 

26

Re: [238:3-238:7]

Def Objection - Vague; 

Misstates (611, 403)

Re: [238:9-238:14]

Def Objection - Vague; 

Misstates (611, 403)

Re: [236:18-

240:9]

Def Objection -

3M MIL No. 26

Overruled

Re: [238:3-

238:7]

Def Objection -

Vague; Misstates 

(611, 403)

Overruled

Re: [238:9-

238:14]

Def Objection -

Vague; Misstates 

(611, 403)

Overruled

Re: [235:1-238:14]

Baker MIL 1

Prior ruling 

stands.

238:13 - 238:14 Klun, Robert 6-24-2020

 238 13 THE WITNESS: I approve for

 238 14 quality.

Re: [236:18-240:9]

Def Objection - 3M MIL No. 

26

Re: [238:9-238:14]

Def Objection - Vague; 

Misstates (611, 403)

Re: [236:18-

240:9]

Def Objection -

3M MIL No. 26

Overruled

Re: [238:9-

238:14]

Def Objection -

Vague; Misstates 

Re: [235:1-238:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 35 of 151
Klun, Robert 6-24-2020 35

(611, 403)

Overruled

238:16 - 238:21 Klun, Robert 6-24-2020

 238 16 Q. Okay. So if we can go now to

 238 17 slide 35, I want to see what was happening

 238 18 regarding these ARC machines back in the

 238 19 summer of '99, five years before you sent

 238 20 that memo about the problems down in Mexico.

 238 21 Okay?

Re: [236:18-240:9]

Def Objection - 3M MIL No. 

26

Re: [238:16-238:24]

Def Objection - Relevance 

(401, 402)

Re: [236:18-

240:9]

Def Objection -

3M MIL No. 26

Overruled

Re: [238:16-

238:24]

Def Objection -

Relevance (401, 

402)

Overruled

238:23 - 240:9 Klun, Robert 6-24-2020

 238 23 (Klun Exhibit 25 marked for

 238 24 identification.)

 238 25 

 239 1 QUESTIONS BY MR. OVERHOLTZ:

 239 2 Q. So I'm going to mark as

 239 3 Exhibit 25, P6023. This is a memo from Ron

 239 4 Kieper to Dick Knauer from June 1st of 1999.

 239 5 And let me know when you can

 239 6 see that, Mr. Klun.

 239 7 A. Yes, I see.

 239 8 Q. Okay. And so in June 1st of

 239 9 '99, Ron Kieper tells Dick Knauer regarding

 239 10 acoustics measures on the Combat Arms plugs

 239 11 that "20 Combat Arms plugs were given to me

 239 12 so their acoustic resistance could be

 239 13 checked."

 239 14 Do you see that?

 239 15 A. Yes.

 239 16 Q. And he goes on, "After setting

 239 17 up the Etymotic Research acoustic resistance

 239 18 measuring module, ARMM, per its instructions,

 239 19 each of the 20 plugs were measured," and he

 239 20 gives the measurement values.

 239 21 Do you see that?

Re: [236:18-240:9]

Def Objection - 3M MIL No. 

26

Re: [238:16-238:24]

Def Objection - Relevance 

(401, 402)

Re: [236:18-

240:9]

Def Objection -

3M MIL No. 26

Overruled

Re: [238:16-

238:24]

Def Objection -

Relevance (401, 

402)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 36 of 151
Klun, Robert 6-24-2020 36

 239 22 A. Yes.

 239 23 (Klun Exhibit 26 marked for

 239 24 identification.)

 239 25 

 240 1 QUESTIONS BY MR. OVERHOLTZ:

 240 2 Q. And then if we can go to the

 240 3 next exhibit, the next slide, Zach, this is

 240 4 Exhibit Number 26. This is P1138.

 240 5 This is a monthly report from

 240 6 Elliott Berger to Brian Myers on July 1st of

 240 7 1999.

 240 8 Do you see that?

 240 9 A. Yes.

240:10 - 240:18 Klun, Robert 6-24-2020

 240 10 MR. FIELDS: This is a slide

 240 11 that contains a representation of the

 240 12 document, right?

 240 13 MR. OVERHOLTZ: We've blown up

 240 14 part of the document, part of Exhibit

 240 15 Number 26.

 240 16 MR. FIELDS: Right. But that

 240 17 heading is not from the document, so

 240 18 I'm just being clear.

Re: [240:10-240:18]

Improper Counter Designation, 

401/402, 403, nonresponsive

SUSTAINED

240:19 - 240:24 Klun, Robert 6-24-2020

 240 19 MR. OVERHOLTZ: That heading

 240 20 there, July 1, '99, Berger reports to

 240 21 marketing about ARC testing --

 240 22 MR. FIELDS: Yeah.

 240 23 MR. OVERHOLTZ: -- that's my

 240 24 heading.

Re: [240:19-240:24]

Improper Counter Designation, 

401/402, 403, nonresponsive

SUSTAINED

241:2 - 242:1 Klun, Robert 6-24-2020

 241 2 QUESTIONS BY MR. OVERHOLTZ:

 241 3 Q. But there's a section on the

 241 4 bottom of the document called Product

 241 5 Development, and there's a sentence that

 241 6 begins, "Per REK's request."

 241 7 Do you see that?

 241 8 A. Yes.

 241 9 Q. And it says, "Per REK's

Re: [241:3-241:13]

Def Objection - 3M MIL No. 

26

Re: [241:14-241:22]

Def Objection - 3M MIL No. 

26

Re: [241:23-242:4]

Def Objection - Foundation 

(602); 702; Vague (611, 403)

Re: [241:3-

241:13]

Def Objection -

3M MIL No. 26

Overruled

Re: [241:14-

241:22]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 37 of 151
Klun, Robert 6-24-2020 37

 241 10 request" --

 241 11 REK, did you know that to be

 241 12 Dick Knauer?

 241 13 A. Yes.

 241 14 Q. -- "a memo was written to

 241 15 document the acoustic resistance measurements

 241 16 made on 20 Combat Arms plugs in April 1999.

 241 17 Five production plugs were measured this

 241 18 month. The acceptable" -- "the, quote,

 241 19 'acceptable' range of values was set from the

 241 20 results of the measurements."

 241 21 Do you see that?

 241 22 A. Yes.

 241 23 Q. And those -- having an

 241 24 acceptable range of values was important to

 241 25 make sure those plugs fell within those

 242 1 acceptable ranges, correct?

3M MIL No. 26

Overruled

Re: [241:23-

242:4]

Def Objection -

Foundation 

(602); 702; 

Vague (611, 403)

Overruled

242:3 - 242:11 Klun, Robert 6-24-2020

 242 3 THE WITNESS: That's what Ron

 242 4 Kieper wrote.

 242 5 QUESTIONS BY MR. OVERHOLTZ:

 242 6 Q. That was Kieper's role, to

 242 7 figure out those acceptable values to make

 242 8 sure the plugs that were being manufactured

 242 9 and assembly {sic} would fall within the

 242 10 acceptable range, right?

 242 11 A. Yes.

Re: [241:23-242:4]

Def Objection - Foundation 

(602); 702; Vague (611, 403)

Re: [241:23-

242:4]

Def Objection -

Foundation 

(602); 702; 

Vague (611, 403)

Overruled

245:23 - 247:7 Klun, Robert 6-24-2020

 245 23 Q. Okay. So if we can look -- if

 245 24 we can move forward to slide 42, Zach.

 245 25 What we now know is that by the

 246 1 summer of 1999, Aearo had decided that the

 246 2 quality assurance testing that would be done

 246 3 on the Combat Arms version 2 plug would be

 246 4 this acoustic resistance checker, right?

 246 5 A. So can you rephrase or repeat?

 246 6 Q. Sure.

 246 7 A. Is this a question?

 246 8 Q. Yeah.

Re: [245:13-249:3]

Def Objection - 3M MIL No. 

26

Re: [245:13-

249:3]

Def Objection -

3M MIL No. 26

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 38 of 151
Klun, Robert 6-24-2020 38

 246 9 By the summer of '99 -- you can

 246 10 see I added under Quality Assurance Testing,

 246 11 "acoustic resistance checker" there in

 246 12 yellow. And I'm just asking you: By summer

 246 13 of '99, you guys had decided that these

 246 14 acoustic resistance checkers, that was going

 246 15 to be how you tested quality control, quality

 246 16 assurance testing, right?

 246 17 A. I don't recall the entire test

 246 18 program.

 246 19 Q. That was certainly what we read

 246 20 in those memos from the summer of '99, right?

 246 21 A. I'd have to see the memo again.

 246 22 This is your slide. It says --

 246 23 Q. It is.

 246 24 A. And what I thought I heard you

 246 25 say is that this is -- is this the only test?

 247 1 Is that what you said?

 247 2 Q. The acoustic resistance checker

 247 3 was a quality control test that was being

 247 4 done on the Combat Arms Earplug.

 247 5 A. I agree. I agree.

 247 6 (Klun Exhibit 28 marked for

 247 7 identification.)

247:11 - 248:11 Klun, Robert 6-24-2020

 247 11 So we're looking at an

 247 12 August 3rd memo. If we can go to slide 48.

 247 13 This would be Exhibit Number 28. It's

 247 14 BK-154.

 247 15 This is an August 16, 1999

 247 16 Combat Arms plug memorandum from Annette

 247 17 Shaver.

 247 18 Do you see that?

 247 19 A. Yes.

 247 20 Q. And so by August of '99, this

 247 21 says that "a design review meeting was held

 247 22 on August 9, '99, to discuss progress toward

 247 23 the manufacture and the delivery of the

 247 24 Combat Arms Earplugs. Attending were Bob

Re: [245:13-249:3]

Def Objection - 3M MIL No. 

26

Re: [248:8-248:13]

Def Objection - Foundation 

(602); Vague (611, 403)

Re: [245:13-

249:3]

Def Objection -

3M MIL No. 26

Sustained

Re: [248:8-

248:13]

Def Objection -

Foundation 

(602); Vague 

(611, 403)

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 39 of 151
Klun, Robert 6-24-2020 39

 247 25 Klun, Dick Knauer, A. Aufmann, R. Bomke and

 248 1 J. Jurney."

 248 2 Right?

 248 3 A. Yes.

 248 4 Q. And there was no changes to the

 248 5 design at this time, right?

 248 6 A. That's what -- what the

 248 7 document says.

 248 8 Q. Now, do you remember by this

 248 9 time you guys had already started having a

 248 10 problem with those ARC quality control

 248 11 machines?

248:13 - 249:3 Klun, Robert 6-24-2020

 248 13 THE WITNESS: I do not recall.

 248 14 QUESTIONS BY MR. OVERHOLTZ:

 248 15 Q. Let's turn over to page 3 of

 248 16 this exhibit, which is on the next slide, the

 248 17 section under Design Acceptance Criteria.

 248 18 Do you see that?

 248 19 A. Yes.

 248 20 Q. It says, "Apparently one test

 248 21 unit is in need of repair by the supplier."

 248 22 Do you see that?

 248 23 A. Yes.

 248 24 Q. Okay. So you don't remember

 248 25 there being just one problem or another with

 249 1 these ARC machines back in the early design

 249 2 phase of these earplugs and development?

 249 3 A. I don't recall.

Re: [245:13-249:3]

Def Objection - 3M MIL No. 

26

Re: [248:8-248:13]

Def Objection - Foundation 

(602); Vague (611, 403)

Re: [248:24-249:5]

Def Objection - Foundation 

(602); Vague (611, 403)

Re: [245:13-

249:3]

Def Objection -

3M MIL No. 26

Sustained

Re: [248:8-

248:13]

Def Objection -

Foundation 

(602); Vague 

(611, 403)

Sustained

Re: [248:24-

249:5]

Def Objection -

Foundation 

(602); Vague 

(611, 403)

Sustained

249:7 - 249:18 Klun, Robert 6-24-2020

 249 7 Q. All right. Now, you recall you

 249 8 and I talked about those Kaizen circles.

 249 9 Do you remember that? Plan,

 249 10 do, check and act?

 249 11 A. Yes.

 249 12 Q. I mean, when you have a problem

 249 13 and you're operating under those plan, do,

Re: [249:12-250:16]

Def Objection - Foundation 

(602); Argumentative; 

Compound; Vague (611, 403)

Re: [249:12-

250:16]

Def Objection -

Foundation 

(602); 

Argumentative; 

Compound; 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 40 of 151
Klun, Robert 6-24-2020 40

 249 14 check and act, when you figure out the

 249 15 problem, is one of the things you're supposed

 249 16 to do is write a secret report and stick it

 249 17 in your files and keep it there so nobody

 249 18 knows about it?

Vague (611, 403)

Sustained

249:21 - 250:6 Klun, Robert 6-24-2020

 249 21 THE WITNESS: Can you rephrase

 249 22 that question?

 249 23 QUESTIONS BY MR. OVERHOLTZ:

 249 24 Q. Sure.

 249 25 I mean, part of the plan, do,

 250 1 check and act management strategy that you

 250 2 guys applied to quality wouldn't include

 250 3 writing secret reports and keeping them in

 250 4 your files, not sharing them with anyone

 250 5 about the problems you had found with the

 250 6 products, right?

Re: [249:12-250:16]

Def Objection - Foundation 

(602); Argumentative; 

Compound; Vague (611, 403)

Re: [249:12-

250:16]

Def Objection -

Foundation 

(602); 

Argumentative; 

Compound; 

Vague (611, 403)

Sustained

250:8 - 250:13 Klun, Robert 6-24-2020

 250 8 THE WITNESS: I'm having a

 250 9 hard -- did you say would or would

 250 10 not?

 250 11 QUESTIONS BY MR. OVERHOLTZ:

 250 12 Q. That's something you would not

 250 13 do, right?

Re: [249:12-250:16]

Def Objection - Foundation 

(602); Argumentative; 

Compound; Vague (611, 403)

Re: [249:12-

250:16]

Def Objection -

Foundation 

(602); 

Argumentative; 

Compound; 

Vague (611, 403)

Sustained

250:15 - 250:25 Klun, Robert 6-24-2020

 250 15 THE WITNESS: That's correct.

 250 16 We wouldn't do that.

 250 17 QUESTIONS BY MR. OVERHOLTZ:

 250 18 Q. That's not part of those Kaizen

 250 19 principles to help improve the process of

 250 20 quality control for your products, right?

 250 21 A. Kaizen is more than that. It's

 250 22 a process. Kaizen was bigger than what

 250 23 you're talking about.

 250 24 Q. Well, it didn't include writing

 250 25 secret reports, did it?

Re: [249:12-250:16]

Def Objection - Foundation 

(602); Argumentative; 

Compound; Vague (611, 403)

Re: [250:24-251:2]

Def Objection - Argumentative; 

Vague (611, 403)

Re: [249:12-

250:16]

Def Objection -

Foundation 

(602); 

Argumentative; 

Compound; 

Vague (611, 403)

Sustained

Re: [250:24-

251:2]

Def Objection -

Argumentative; 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 41 of 151
Klun, Robert 6-24-2020 41

Vague (611, 403)

Sustained

251:2 - 251:5 Klun, Robert 6-24-2020

 251 2 THE WITNESS: No, it did not.

 251 3 QUESTIONS BY MR. OVERHOLTZ:

 251 4 Q. Like that flange report that

 251 5 Mr. Pirtle showed you?

Re: [250:24-251:2]

Def Objection - Argumentative; 

Vague (611, 403)

Re: [251:3-251:12]

Def Objection - Foundation 

(602); Argumentative; Vague 

(611, 403)

Re: [250:24-

251:2]

Def Objection -

Argumentative; 

Vague (611, 403)

Sustained

Re: [251:3-

251:12]

Def Objection -

Foundation 

(602); 

Argumentative; 

Vague (611, 403)

Sustained

251:7 - 251:9 Klun, Robert 6-24-2020

 251 7 QUESTIONS BY MR. OVERHOLTZ:

 251 8 Q. That's not what you'd expect,

 251 9 right?

Re: [251:3-251:12]

Def Objection - Foundation 

(602); Argumentative; Vague 

(611, 403)

Re: [251:3-

251:12]

Def Objection -

Foundation 

(602); 

Argumentative; 

Vague (611, 403)

Sustained

251:11 - 254:12 Klun, Robert 6-24-2020

 251 11 THE WITNESS: We would not do

 251 12 anything like that.

 251 13 (Klun Exhibit 29 marked for

 251 14 identification.)

 251 15 QUESTIONS BY MR. OVERHOLTZ:

 251 16 Q. All right. Let's look at, if

 251 17 we can -- if we can pull up as exhibit -- is

 251 18 it 29 now? 29, RZ-014, Zach.

 251 19 You see this report at the

 251 20 front page, it says in the top, it says,

 251 21 "Development of a procedure to set up and

 251 22 utilize the Etymotic Research acoustic

 251 23 resistance checker, ER-ARC, and determining

 251 24 the QC acceptance range for the Combat Arms

Re: [251:3-251:12]

Def Objection - Foundation 

(602); Argumentative; Vague 

(611, 403)

Re: [251:13-254:2]

Def Objection - Foundation 

(602)

Re: [251:13-254:20]

Def Objection - 3M MIL No. 

26

Re: [254:3-254:20]

Def Objection - Foundation 

(602)

Re: [251:3-

251:12]

Def Objection -

Foundation 

(602); 

Argumentative; 

Vague (611, 403)

Sustained

Re: [251:13-

254:20]

Def Objection -

Foundation 

(602); 3M MIL 

No. 26

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 42 of 151
Klun, Robert 6-24-2020 42

 251 25 plug."

 252 1 Do you see that?

 252 2 A. Yes.

 252 3 Q. And the authors listed there

 252 4 are Ron Kieper and Elliott Berger, right?

 252 5 A. Yes.

 252 6 Q. Okay. And the report's got a

 252 7 date of February of 2000.

 252 8 Do you see that?

 252 9 A. Yes.

 252 10 Q. Do you remember ever seeing

 252 11 this report?

 252 12 A. No, I do not recall.

 252 13 Q. Okay. So if you can look with

 252 14 me on page 4, there's a section called

 252 15 "Determining the Combat Arms Plugs Acceptance

 252 16 Range."

 252 17 Do you see that?

 252 18 A. Yes.

 252 19 Q. And this describes the filter

 252 20 that was used in the plug, and then there's a

 252 21 chart of measurements made on either the

 252 22 European nonlinear plug or the Combat Arms

 252 23 plug and the range that was found in the

 252 24 measurements.

 252 25 Do you see that chart?

 253 1 A. Yes, I see the chart in the

 253 2 document.

 253 3 Q. All right. And it says at the

 253 4 bottom of that paragraph, "Based on these

 253 5 measurements, the acceptable range for the

 253 6 Combat Arms plug was 4.5 to 6.5 millivolts

 253 7 measured on ARC number 1."

 253 8 Do you see that?

 253 9 A. That's what the document says.

 253 10 I'm not a subject matter expert. That's what

 253 11 the document says.

 253 12 Q. Okay. You would have relied in

 253 13 your role in quality on Mr. Kieper's

Re: [254:3-

254:20]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 43 of 151
Klun, Robert 6-24-2020 43

 253 14 expertise on this, right?

 253 15 A. Correct.

 253 16 Q. But you don't know whether he

 253 17 ever showed you that memo, right?

 253 18 A. I don't recall.

 253 19 Q. So if we can look over -- I

 253 20 want to go back to page 2. You see that it

 253 21 says -- there's a second paragraph, and it

 253 22 says, "The initial attempt by the first

 253 23 author," that was Mr. Kieper, "to devise a

 253 24 setup procedure which would yield similar

 253 25 measured values from all four units failed."

 254 1 Do you see that?

 254 2 A. Yes.

 254 3 Q. He goes on a little bit further

 254 4 down, "Both setup procedures produced

 254 5 disparate values from the four ARCs."

 254 6 Do you see that?

 254 7 A. Yes.

 254 8 Q. And then if we look at the next

 254 9 paragraph it says, "The data obtained on the

 254 10 four ARCs, three reference plugs and units

 254 11 number 1 and 2, were sent to Andy Haapapuro

 254 12 of Etymotic Research, the technician who

253:3 - 254:18 Klun, Robert 6-24-2020

 253 3 Q. All right. And it says at the

 253 4 bottom of that paragraph, "Based on these

 253 5 measurements, the acceptable range for the

 253 6 Combat Arms plug was 4.5 to 6.5 millivolts

 253 7 measured on ARC number 1."

 253 8 Do you see that?

 253 9 A. That's what the document says.

 253 10 I'm not a subject matter expert. That's what

 253 11 the document says.

 253 12 Q. Okay. You would have relied in

 253 13 your role in quality on Mr. Kieper's

 253 14 expertise on this, right?

 253 15 A. Correct.

 253 16 Q. But you don't know whether he

Re: [251:13-254:2]

Def Objection - Foundation 

(602)

Re: [251:13-254:20]

Def Objection - 3M MIL No. 

26

Re: [254:3-254:20]

Def Objection - Foundation 

(602)

Re: [254:16-254:20]

Def Objection - Foundation 

(602)

Re: [251:13-

254:20]

Def Objection -

Foundation 

(602); 3M MIL 

No. 26

Overruled

Re: [254:3-

254:20]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 44 of 151
Klun, Robert 6-24-2020 44

 253 17 ever showed you that memo, right?

 253 18 A. I don't recall.

 253 19 Q. So if we can look over -- I

 253 20 want to go back to page 2. You see that it

 253 21 says -- there's a second paragraph, and it

 253 22 says, "The initial attempt by the first

 253 23 author," that was Mr. Kieper, "to devise a

 253 24 setup procedure which would yield similar

 253 25 measured values from all four units failed."

 254 1 Do you see that?

 254 2 A. Yes.

 254 3 Q. He goes on a little bit further

 254 4 down, "Both setup procedures produced

 254 5 disparate values from the four ARCs."

 254 6 Do you see that?

 254 7 A. Yes.

 254 8 Q. And then if we look at the next

 254 9 paragraph it says, "The data obtained on the

 254 10 four ARCs, three reference plugs and units

 254 11 number 1 and 2, were sent to Andy Haapapuro

 254 12 of Etymotic Research, the technician who

 254 13 built units number 2 and number 3."

 254 14 Do you see that?

 254 15 A. Yes.

 254 16 Q. Etymotic, is that the company

 254 17 you bought the ARC machines from to test

 254 18 these earplugs?

254:20 - 254:20 Klun, Robert 6-24-2020

 254 20 THE WITNESS: I don't recall.

Re: [251:13-254:20]

Def Objection - 3M MIL No. 

26

Re: [254:3-254:20]

Def Objection - Foundation 

(602)

Re: [254:16-254:20]

Def Objection - Foundation 

(602)

Re: [251:13-

254:20]

Def Objection -

Foundation 

(602); 3M MIL 

No. 26

Overruled

Re: [254:3-

254:20]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 45 of 151
Klun, Robert 6-24-2020 45

255:17 - 256:24 Klun, Robert 6-24-2020

 255 17 QUESTIONS BY MR. OVERHOLTZ:

 255 18 Q. Okay. So this is a technical

 255 19 report, and it says, "Comparison of ER,"

 255 20 which is Etymotic Research, "and E-A-R,

 255 21 Aearo, Z boxes, November 15, '99."

 255 22 Do you see that?

 255 23 A. Yes.

 255 24 Q. And this was from Andrew

 255 25 Haapapuro, right?

 256 1 A. That's what it says.

 256 2 Q. And it said, "Based on test

 256 3 results that I have collected on the two

 256 4 Aearo Z boxes and one of ER's boxes, I have

 256 5 concluded the large difference between boxes

 256 6 at Aearo is that they have no means to

 256 7 properly calibrate the boxes."

 256 8 Do you see that?

 256 9 A. Yes.

 256 10 Q. "Particularly, sharing cal

 256 11 cavity information between different boxes

 256 12 invites large errors and is likely to be the

 256 13 source of the problem."

 256 14 Do you see that?

 256 15 A. Yes.

 256 16 Q. "I've demonstrated that the

 256 17 three boxes properly calibrated will

 256 18 correlate quite nicely."

 256 19 Right?

 256 20 A. That's what the document says.

 256 21 Q. Right. That's what your guys's

 256 22 internal memo said about the information they

 256 23 got from Etymotic, the people that made these

 256 24 ARC machines, in November of 1999, right?

Re: [255:18-258:17]

Def Objection - Foundation 

(602); Hearsay (801, 802)

Re: [255:18-259:12]

Def Objection - 3M MIL No. 

26

Re: [256:21-257:1]

Def Objection - Foundation 

(602); Vague (611, 403)

Re: [255:18-

256:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [255:18-

258:17]

Def Objection -

Foundation 

(602); Hearsay 

(801, 802)

Overruled

Re: [256:21-

257:1]

Def Objection -

Foundation 

(602); Vague 

(611, 403); 3M 

MIL No. 26

Overruled

257:1 - 257:9 Klun, Robert 6-24-2020

 257 1 THE WITNESS: I don't recall.

 257 2 QUESTIONS BY MR. OVERHOLTZ:

 257 3 Q. Did you know that by this time

 257 4 you guys at Aearo were already selling and

Re: [255:18-258:17]

Def Objection - Foundation 

(602); Hearsay (801, 802)

Re: [255:18-

256:20]

Def Objection -

3M MIL No. 26

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 46 of 151
Klun, Robert 6-24-2020 46

 257 5 delivering Combat Arms Earplugs to the United

 257 6 States military?

 257 7 A. I do not recall.

 257 8 Q. Without any way of calibrating

 257 9 the machines; you don't recall that?

Re: [255:18-259:12]

Def Objection - 3M MIL No. 

26

Re: [256:21-257:1]

Def Objection - Foundation 

(602); Vague (611, 403)

Re: [257:8-257:11]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [255:18-

258:17]

Def Objection -

Foundation 

(602); Hearsay 

(801, 802)

Overruled

Re: [256:21-

257:1]

Def Objection -

Foundation 

(602); Vague 

(611, 403); 3M 

MIL No. 26

Overruled

Re: [257:2-

257:7]

Def Objection -

3M MIL No. 26

Overruled

Re: [257:8-

257:11]

Def Objection -

Vague (611, 

403); Foundation 

(602); 3M MIL 

No. 26

Overruled

257:11 - 257:17 Klun, Robert 6-24-2020

 257 11 THE WITNESS: I do not recall.

 257 12 QUESTIONS BY MR. OVERHOLTZ:

 257 13 Q. But based on what Mr. Haapapuro

 257 14 said, I mean, it's pretty clear that without

 257 15 proper calibration, Aearo can't be sure that

 257 16 these earplugs are going to meet quality

 257 17 standards, right?

Re: [255:18-258:17]

Def Objection - Foundation 

(602); Hearsay (801, 802)

Re: [255:18-259:12]

Def Objection - 3M MIL No. 

26

Re: [257:8-257:11]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [255:18-

258:17]

Def Objection -

Foundation 

(602); Hearsay 

(801, 802)

Overruled

Re: [257:8-

257:11]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 47 of 151
Klun, Robert 6-24-2020 47

Re: [257:13-257:22]

Def Objection - Foundation 

(602); Vague (611, 403); 702

Vague (611, 

403); Foundation 

(602); 3M MIL 

No. 26

Overruled

Re: [257:12-

257:12]

Def Objection -

3M MIL No. 26

Overruled

Re: [257:13-

257:22]

Def Objection -

Foundation 

(602); Vague 

(611, 403); 702; 

3M MIL No. 26

Overruled

257:19 - 258:2 Klun, Robert 6-24-2020

 257 19 THE WITNESS: I am not a

 257 20 subject matter expert, so I

 257 21 cannot comment. I do not recall this.

 257 22 Never seen it.

 257 23 QUESTIONS BY MR. OVERHOLTZ:

 257 24 Q. Mr. Haapapuro has told you that

 257 25 the reason why you're getting different

 258 1 results on different boxes is because you had

 258 2 no way of calibrating them, right?

Re: [255:18-258:17]

Def Objection - Foundation 

(602); Hearsay (801, 802)

Re: [255:18-259:12]

Def Objection - 3M MIL No. 

26

Re: [257:13-257:22]

Def Objection - Foundation 

(602); Vague (611, 403); 702

Re: [257:24-258:7]

Def Objection - Foundation 

(602); Vague; Misstates (611, 

403); 702; Hearsay (801, 802)

Re: [255:18-

258:17]

Def Objection -

Foundation 

(602); Hearsay 

(801, 802)

Overruled

Re: [257:13-

257:22]

Def Objection -

Foundation 

(602); Vague 

(611, 403); 702; 

3M MIL No. 26

Overruled

Re: [257:23-

257:23]

Def Objection -

3M MIL No. 26

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 48 of 151
Klun, Robert 6-24-2020 48

Re: [257:24-

258:7]

Def Objection -

Foundation 

(602); Vague; 

Misstates (611, 

403); 702; 

Hearsay (801, 

802); 3M MIL 

No. 26

Overruled

258:6 - 259:12 Klun, Robert 6-24-2020

 258 6 THE WITNESS: I agree. Nobody

 258 7 told me. I don't recall.

 258 8 QUESTIONS BY MR. OVERHOLTZ:

 258 9 Q. This memo that Mr. Haapapuro

 258 10 wrote to Elliott Berger, who ran the lab, and

 258 11 Ron Kieper, who did all the testing, told

 258 12 them, and they put in this technical report

 258 13 that the reason why there were differences

 258 14 between the ARC boxes at Aearo is there were

 258 15 no means to properly calibrate them, right?

 258 16 A. Well, by what the document

 258 17 says.

 258 18 (Klun Exhibit 30 marked for

 258 19 identification.)

 258 20 QUESTIONS BY MR. OVERHOLTZ:

 258 21 Q. Well, let's look and see what

 258 22 happened about four days after that. If we

 258 23 can pull up slide 55, Zach, and I'll

 258 24 introduce as Exhibit Number 30 plaintiff 9 --

 258 25 P0922.

 259 1 And again, I've got a

 259 2 picture -- a blowup from the e-mail there.

 259 3 And the writing at the top with the date is,

 259 4 "Berger says there is no test data for the

 259 5 CAEv2 even though Aearo was selling the

 259 6 plugs."

Re: [255:18-258:17]

Def Objection - Foundation 

(602); Hearsay (801, 802)

Re: [255:18-259:12]

Def Objection - 3M MIL No. 

26

Re: [257:24-258:7]

Def Objection - Foundation 

(602); Vague; Misstates (611, 

403); 702; Hearsay (801, 802)

Re: [258:18-259:12]

Def Objection - Foundation 

(602)

Re: [255:18-

258:17]

Def Objection -

Foundation 

(602); Hearsay 

(801, 802)

Overruled

Re: [257:24-

258:7]

Def Objection -

Foundation 

(602); Vague; 

Misstates (611, 

403); 702; 

Hearsay (801, 

802); 3M MIL 

No. 26

Overruled

Re: [258:8-

258:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [258:18-

259:12]

Def Objection -

Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 49 of 151
Klun, Robert 6-24-2020 49

 259 7 Can you see the e-mail there on

 259 8 the screen, Mr. Klun?

 259 9 A. I'm seeing part of it.

 259 10 Q. All right. And Elliott Berger

 259 11 e-mails on November 19th of '99, right?

 259 12 A. Uh-huh.

(602); 3M MIL 

No. 26

Overruled

259:20 - 260:13 Klun, Robert 6-24-2020

 259 20 QUESTIONS BY MR. OVERHOLTZ:

 259 21 Q. You see the subject is "Combat

 259 22 Arms plug," Mr. Klun?

 259 23 A. Yes.

 259 24 Q. And Mr. Berger writes, "It

 259 25 recently occurred to us that we have no data

 260 1 on the actual version of the nonlinear

 260 2 earplug that we are now selling in the US,

 260 3 namely, the dual-ended Combat Arms plug."

 260 4 Do you see that?

 260 5 A. Yes.

 260 6 Q. So four days after the people

 260 7 at Etymotic told Mr. Berger and Mr. Kieper

 260 8 that there was no way for them to test the

 260 9 plugs with the ARC machines and get

 260 10 consistent results because they had no way of

 260 11 calibrating them, Berger e-mails that they

 260 12 have no data on the plug that they are now

 260 13 selling, right?

Re: [259:20-262:17]

Def Objection - 3M MIL No. 

26

Re: [260:6-260:16]

Def Objection - Hearsay (801, 

802); Foundation (602); 702; 

Compound; Vague (611, 403)

Re: [259:20-

262:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [260:6-

260:16]

Def Objection -

Hearsay (801, 

802); Foundation 

(602); 702; 

Compound; 

Vague (611, 403)

Overruled

260:15 - 260:25 Klun, Robert 6-24-2020

 260 15 THE WITNESS: I don't recall

 260 16 ever seeing this document.

 260 17 QUESTIONS BY MR. OVERHOLTZ:

 260 18 Q. I mean, if you would have -- if

 260 19 you would have known that you were selling

 260 20 plugs that you didn't have data on regarding

 260 21 their nonlinear function and that the quality

 260 22 control machines that you use couldn't be

 260 23 calibrated, would the right thing to have

 260 24 done is, hey, we've got to quit selling these

 260 25 until we get this problem fixed?

Re: [259:20-262:17]

Def Objection - 3M MIL No. 

26

Re: [260:6-260:16]

Def Objection - Hearsay (801, 

802); Foundation (602); 702; 

Compound; Vague (611, 403)

Re: [260:18-261:3]

Def Objection - Foundation 

(602); 702; 701; Vague; 

Argumentative (611, 403)

Re: [259:20-

262:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [260:6-

260:16]

Def Objection -

Hearsay (801, 

802); Foundation 

(602); 702; 

Compound; 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 50 of 151
Klun, Robert 6-24-2020 50

Vague (611, 403)

Overruled

Re: [260:18-

261:3]

Def Objection -

Foundation 

(602); 702; 701; 

Vague; 

Argumentative 

(611, 403)

Overruled

261:2 - 261:8 Klun, Robert 6-24-2020

 261 2 THE WITNESS: I don't recall

 261 3 this.

 261 4 QUESTIONS BY MR. OVERHOLTZ:

 261 5 Q. So you don't recall this, so

 261 6 you didn't have the chance to stand up and

 261 7 say, hey, we need to stop; is that what

 261 8 you're saying?

Re: [259:20-262:17]

Def Objection - 3M MIL No. 

26

Re: [260:18-261:3]

Def Objection - Foundation 

(602); 702; 701; Vague; 

Argumentative (611, 403)

Re: [261:5-261:12]

Def Objection - Foundation 

(602); Argumentative; Vague; 

Misstates (611, 403)

Re: [259:20-

262:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [260:6-Re: 

[260:18-261:3]

Def Objection -

Foundation 

(602); 702; 701; 

Vague; 

Argumentative 

(611, 403)

Overruled

Re: [261:5-

261:12]

Def Objection -

Foundation 

(602); 

Argumentative; 

Vague; Misstates

(611, 403)

Overruled

261:11 - 261:19 Klun, Robert 6-24-2020

 261 11 THE WITNESS: I'm saying I have

 261 12 no recall or did not see the document.

Re: [259:20-262:17]

Def Objection - 3M MIL No. 

26

Re: [259:20-

262:17]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 51 of 151
Klun, Robert 6-24-2020 51

 261 13 QUESTIONS BY MR. OVERHOLTZ:

 261 14 Q. I mean, if you had heard that

 261 15 your quality control machines couldn't be

 261 16 calibrated and that you didn't have nonlinear

 261 17 data on the earplugs that you were selling to

 261 18 the US military, would you have taken some

 261 19 action?

Re: [261:5-261:12]

Def Objection - Foundation 

(602); Argumentative; Vague; 

Misstates (611, 403)

Re: [261:14-261:23]

Def Objection - 701; 

Foundation (602); 

Argumentative; Vague (611, 

403)

3M MIL No. 26

Overruled

Re: [261:5-

261:12]

Def Objection -

Foundation 

(602); 

Argumentative; 

Vague; Misstates 

(611, 403)

Overruled

Re: [261:14-

261:23]

Def Objection -

701; Foundation 

(602); 

Argumentative; 

Vague (611, 403)

Overruled

261:21 - 262:5 Klun, Robert 6-24-2020

 261 21 THE WITNESS: As I say, I'm not

 261 22 aware of it. I'm not aware of this

 261 23 document nor recall it.

 261 24 QUESTIONS BY MR. OVERHOLTZ:

 261 25 Q. Would you have expected that

 262 1 someone that did know this fact to take some

 262 2 action over at Aearo and say, hold up, we've

 262 3 got to get these ARC machines fixed. We've

 262 4 got to get some real data before we keep

 262 5 selling these plugs to the US military?

Re: [259:20-262:17]

Def Objection - 3M MIL No. 

26

Re: [261:14-261:23]

Def Objection - 701; 

Foundation (602); 

Argumentative; Vague (611, 

403)

Re: [261:25-262:8]

Def Objection - Foundation 

(602); 701; Vague; 

Argumentative (611, 403)

Re: [259:20-

262:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [261:14-

261:23]

Def Objection -

701; Foundation 

(602); 

Argumentative; 

Vague (611, 403)

Overruled

Re: [261:25-

262:8]

Def Objection -

Foundation 

(602); 701; 

Vague; 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 52 of 151
Klun, Robert 6-24-2020 52

Argumentative 

(611, 403)

Overruled

262:7 - 262:11 Klun, Robert 6-24-2020

 262 7 THE WITNESS: Again, I have no

 262 8 recall of this.

 262 9 QUESTIONS BY MR. OVERHOLTZ:

 262 10 Q. So at this point in time in

 262 11 late '99, you're still in quality, right?

Re: [259:20-262:17]

Def Objection - 3M MIL No. 

26

Re: [261:25-262:8]

Def Objection - Foundation 

(602); 701; Vague; 

Argumentative (611, 403)

Re: [259:20-

262:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [261:25-

262:8]

Def Objection -

Foundation 

(602); 701; 

Vague; 

Argumentative 

(611, 403)

Overruled

262:12 - 262:17 Klun, Robert 6-24-2020

 262 12 A. Correct.

 262 13 Q. Along with Annette Shaver and

 262 14 Steve Todor, right?

 262 15 A. Yes.

 262 16 (Klun Exhibit 31 marked for

 262 17 identification.)

Re: [259:20-262:17]

Def Objection - 3M MIL No. 

26

Re: [259:20-

262:17]

Def Objection -

3M MIL No. 26

Overruled

263:5 - 263:15 Klun, Robert 6-24-2020

 263 5 Q. And if we can look at the

 263 6 e-mail, Dick Knauer writes to Steve and says,

 263 7 "Steve, I've reviewed the progress for the

 263 8 Combat Arms test fixture with Berger and

 263 9 Kieper."

 263 10 Do you see that?

 263 11 A. Yes.

 263 12 Q. I mean, Berger and Kieper are

 263 13 the ones who got the memo from the guys at

 263 14 Etymotic that said they couldn't calibrate

 263 15 the plugs, right?

Re: [263:5-264:5]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [263:5-

264:5]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

263:17 - 264:5 Klun, Robert 6-24-2020

 263 17 THE WITNESS: Like I say, I

 263 18 don't recall.

Re: [263:5-264:5]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [263:5-

264:5]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 53 of 151
Klun, Robert 6-24-2020 53

 263 19 QUESTIONS BY MR. OVERHOLTZ:

 263 20 Q. Okay. Well, that's what the

 263 21 Haapapuro memo said, right?

 263 22 A. If that's what the document

 263 23 says.

 263 24 Q. And he goes on and says, "I

 263 25 would like to provide a brief update. The

 264 1 specification that is important for the

 264 2 product is the acoustic resistance of the

 264 3 finished plug which is determined in ohms."

 264 4 Do you see that?

 264 5 A. Yes.

3M MIL No. 26; 

Foundation (602)

Overruled

266:14 - 266:24 Klun, Robert 6-24-2020

 266 14 Q. Okay. So what Dick Knauer

 266 15 e-mails on December 10th of '99, he tells

 266 16 Steve Todor and Annette Shaver in quality

 266 17 that --

 266 18 A. Yes.

 266 19 Q. -- with respect to the Combat

 266 20 Arms test picture, the ARC machine, after

 266 21 talking to Berger and Kieper, that the

 266 22 important specification is the acoustic

 266 23 resistance of the finished plug, right?

 266 24 A. Yes.

Re: [266:14-266:24]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [266:14-

266:24]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

273:13 - 273:16 Klun, Robert 6-24-2020

 273 13 Q. Now, do you know how those

 273 14 plugs got back from San Luis Potos�, Mexico,

 273 15 to Indianapolis to be sold?

 273 16 A. I do not know.

Re: [273:13-273:16]

Plt Objection - Improper 

Counter Designation

Re: [273:13-

273:16]

Plt Objection -

improper counter 

per PTO 64; 402

OVERRULED

273:17 - 273:23 Klun, Robert 6-24-2020

 273 17 (Klun Exhibit 33 marked for

 273 18 identification.)

 273 19 QUESTIONS BY MR. OVERHOLTZ:

 273 20 Q. Okay. All right. So if we can

 273 21 look at the next exhibit, we'll mark this as

 273 22 Exhibit 33, which is BK-164. This is a

 273 23 quotation document from August 5th of 2000.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 54 of 151
Klun, Robert 6-24-2020 54

274:7 - 274:16 Klun, Robert 6-24-2020

 274 7 Q. Okay. So this shows -- this

 274 8 is -- this indicated -- this document we

 274 9 found in Aearo's files says that this is a

 274 10 labor quotation type.

 274 11 Do you see that?

 274 12 A. Yes.

 274 13 Q. And it models the Combat Arms

 274 14 part number 370-1000.

 274 15 Do you see that?

 274 16 A. Yes.

274:21 - 274:23 Klun, Robert 6-24-2020

 274 21 Q. And it looks like -- that TJR

 274 22 was saying that they could put these earplugs

 274 23 together for 30 and a half cents each, right?

Re: [274:21-275:1]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403); 3M MIL No. 7

Re: [274:21-

275:1]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403); 

3M MIL No. 7

Overruled

Re: [274:21-275:1]

Baker MIL 1

Prior ruling 

stands.

274:25 - 275:1 Klun, Robert 6-24-2020

 274 25 THE WITNESS: That's what the

 275 1 document says.

Re: [274:21-275:1]

Def Objection - Foundation 

(602); Relevance (401, 402); 

Prejudice (403); 3M MIL No. 7

Re: [274:21-

275:1]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 

Prejudice (403); 

3M MIL No. 7

Overruled

Re: [274:21-275:1]

Baker MIL 1

Prior ruling 

stands.

275:22 - 276:1 Klun, Robert 6-24-2020

 275 22 Q. All right. You know -- did you

 275 23 become aware at some point that TJR merged

 275 24 into Aearo, became Aearo Technologies de

 275 25 Mexico, or ATM?

 276 1 A. Do not recall that.

Re: [275:22-276:1]

Plt Objection - Improper 

Counter Designation

Re: [275:22-

276:1]

Plt Objection -

improper counter 

per PTO 64; 402

OVERRULED

Re: [275:22-276:1]

602

Prior ruling 

stands.

277:1 - 278:11 Klun, Robert 6-24-2020

 277 1 QUESTIONS BY MR. OVERHOLTZ:

 277 2 Q. All right. Let's look at

 277 3 slide 78, if we can. And we'll mark this as

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [277:2-

281:20]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 55 of 151
Klun, Robert 6-24-2020 55

 277 4 Exhibit 34, which is P1364A.

 277 5 And this is -- we're going to

 277 6 look at page 3, which is an April 9, 2003

 277 7 Medical Procurement Item Description.

 277 8 Can you see that, Mr. Klun?

 277 9 A. Yes.

 277 10 Q. And so for this Medical

 277 11 Procurement Item Description dated April 9,

 277 12 2003, there's a section under 4.3.2 called

 277 13 Sound Attenuation.

 277 14 Do you see that?

 277 15 A. Yes.

 277 16 Q. And it says, "Sampling for

 277 17 inspection of sound attenuation."

 277 18 You know what sound attenuation

 277 19 is, right, since you were working on hearing

 277 20 protection?

 277 21 A. Yeah. Yes, I do.

 277 22 Q. That's the protective effect of

 277 23 the earplug, right?

 277 24 A. Yes.

 277 25 Q. It says, "Sampling for

 278 1 inspection of sound attenuation of the

 278 2 level-dependent yellow end shall be

 278 3 100 percent and shall be verified using an

 278 4 acoustical impedance test."

 278 5 Do you see that?

 278 6 A. Yes.

 278 7 Q. So for this Medical Procurement

 278 8 Item Description, for the military to be able

 278 9 to order these plugs, Aearo told the military

 278 10 they were going to test 100 percent of them

 278 11 and verify with an ARC machine, right?

Re: [278:7-278:14]

Def Objection - Hearsay (801, 

802); Foundation (602); Vague 

(611, 403)

Foundation (602)

Overruled

Re: [278:7-

278:14]

Def Objection -

Hearsay (801, 

802); Foundation 

(602); Vague 

(611, 403)

Overruled

278:13 - 278:19 Klun, Robert 6-24-2020

 278 13 THE WITNESS: That's what this

 278 14 document says.

 278 15 QUESTIONS BY MR. OVERHOLTZ:

 278 16 Q. It doesn't say anywhere on here

 278 17 in April of 2003 that sometimes our machines

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [278:7-278:14]

Def Objection - Hearsay (801, 

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 56 of 151
Klun, Robert 6-24-2020 56

 278 18 may not be calibrated and may not work right,

 278 19 does it?

802); Foundation (602); Vague 

(611, 403)

Re: [278:15-278:19]

Def Objection - Argumentative 

(611, 403); 3M MIL No. 26

Re: [278:7-

278:14]

Def Objection -

Hearsay (801, 

802); Foundation 

(602); Vague 

(611, 403)

Overruled

Re: [278:15-

278:19]

Def Objection -

Argumentative 

(611, 403); 3M 

MIL No. 26

Overruled

278:22 - 278:24 Klun, Robert 6-24-2020

 278 22 QUESTIONS BY MR. OVERHOLTZ:

 278 23 Q. It doesn't say that, right,

 278 24 Mr. Klun?

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

279:1 - 279:14 Klun, Robert 6-24-2020

 279 1 THE WITNESS: Say it again?

 279 2 QUESTIONS BY MR. OVERHOLTZ:

 279 3 Q. It doesn't say anywhere on here

 279 4 that if the ARC machines aren't calibrated,

 279 5 they may not work right, and we can't verify

 279 6 that the plugs are going to work for the

 279 7 soldiers, does it?

 279 8 A. I go by what the document says.

 279 9 Q. Do you know if anyone at Aearo

 279 10 ever told the United States military that if

 279 11 those ARC machines weren't calibrated, that

 279 12 they'd have no way of verifying that the

 279 13 plugs would attenuate sound for the yellow

 279 14 end for the soldiers wearing them?

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [279:1-279:8]

Def Objection - 3M MIL No. 

26

Re: [279:9-281:20]

Def Objection - 3M MIL No. 

26

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Re: [279:1-

279:8]

Def Objection -

3M MIL No. 26

Overruled

Re: [279:9-

281:20]

Def Objection -

3M MIL No. 26

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 57 of 151
Klun, Robert 6-24-2020 57

279:16 - 280:3 Klun, Robert 6-24-2020

 279 16 THE WITNESS: I do not know nor

 279 17 recall.

 279 18 QUESTIONS BY MR. OVERHOLTZ:

 279 19 Q. And do you know if anyone at

 279 20 Aearo ever told the United States military

 279 21 that they were having problems with the

 279 22 plug -- with the ARC machines being

 279 23 calibrated right?

 279 24 A. Do not know nor recall.

 279 25 Q. Do you think the US military

 280 1 and the soldiers that were going to wear

 280 2 these plugs deserved to know about that

 280 3 issue?

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [279:9-281:20]

Def Objection - 3M MIL No. 

26

Re: [279:25-280:6]

Def Objection - 701; 

Foundation (602); 

Argumentative (611, 403)

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Re: [279:9-

281:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [279:25-

280:6]

Def Objection -

701; Foundation

(602); 

Argumentative 

(611, 403)

Sustained

280:5 - 280:14 Klun, Robert 6-24-2020

 280 5 THE WITNESS: I do not know nor

 280 6 recall.

 280 7 QUESTIONS BY MR. OVERHOLTZ:

 280 8 Q. So do you believe that the

 280 9 United States military should have been told

 280 10 if there was a problem with the calibration

 280 11 of the ARC machines and that Aearo couldn't

 280 12 verify that the yellow end of the earplug was

 280 13 going to attenuate sound and protect the

 280 14 soldiers?

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [279:9-281:20]

Def Objection - 3M MIL No. 

26

Re: [279:25-280:6]

Def Objection - 701; 

Foundation (602); 

Argumentative (611, 403)

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Re: [279:9-

281:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [279:25-

280:6]

Def Objection -

701; Foundation 

(602); 

Argumentative 

(611, 403)

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 58 of 151
Klun, Robert 6-24-2020 58

280:16 - 281:1 Klun, Robert 6-24-2020

 280 16 THE WITNESS: Can you --

 280 17 QUESTIONS BY MR. OVERHOLTZ:

 280 18 Q. Sure.

 280 19 A. Can you repeat?

 280 20 Q. Do you believe the United

 280 21 States military should have been told that if

 280 22 there was a problem with the calibration of

 280 23 the ARC machines and that Aearo couldn't

 280 24 verify that the yellow end of the earplug was

 280 25 going to attenuate sound and protect the

 281 1 soldiers?

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [279:9-281:20]

Def Objection - 3M MIL No. 

26

Re: [280:20-281:4]

Def Objection - 701; 

Argumentative (611, 403)

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Re: [279:9-

281:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [280:20-

281:4]

Def Objection -

701; 

Argumentative 

(611, 403)

Overruled

281:3 - 281:7 Klun, Robert 6-24-2020

 281 3 THE WITNESS: Do not know nor

 281 4 recall.

 281 5 QUESTIONS BY MR. OVERHOLTZ:

 281 6 Q. If you would have known, would

 281 7 you have told them?

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [279:9-281:20]

Def Objection - 3M MIL No. 

26

Re: [280:20-281:4]

Def Objection - 701; 

Argumentative (611, 403)

Re: [281:6-281:10]

Def Objection - 701; 

Foundation (602)

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Re: [279:9-

281:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [280:20-

281:4]

Def Objection -

701; 

Argumentative 

(611, 403)

Overruled

Re: [281:6-

281:10]

Def Objection -

701; Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 59 of 151
Klun, Robert 6-24-2020 59

(602)

281:9 - 281:17 Klun, Robert 6-24-2020

 281 9 THE WITNESS: I do not know nor

 281 10 recall.

 281 11 QUESTIONS BY MR. OVERHOLTZ:

 281 12 Q. So when you sent Kieper and

 281 13 Zielinski down to Mexico in November 2004 and

 281 14 you found -- and you wrote out that memo

 281 15 about all the problems, did you pick up the

 281 16 phone and call anyone over at the Army and

 281 17 say, hey, we've got a problems, fellows?

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [279:9-281:20]

Def Objection - 3M MIL No. 

26

Re: [281:6-281:10]

Def Objection - 701; 

Foundation (602)

Re: [281:12-281:20]

Def Objection - Argumentative; 

Vague (611, 403)

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Re: [279:9-

281:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [281:6-

281:10]

Def Objection -

701; Foundation 

(602)

Overruled

Re: [281:12-

281:20]

Def Objection -

Argumentative; 

Vague (611, 403)

Overruled

281:19 - 281:20 Klun, Robert 6-24-2020

 281 19 THE WITNESS: Do not know nor

 281 20 recall.

Re: [277:2-281:20]

Def Objection - Foundation 

(602)

Re: [279:9-281:20]

Def Objection - 3M MIL No. 

26

Re: [281:12-281:20]

Def Objection - Argumentative; 

Vague (611, 403)

Re: [277:2-

281:20]

Def Objection -

Foundation (602)

Overruled

Re: [279:9-

281:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [281:12-

281:20]

Def Objection -

Argumentative; 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 60 of 151
Klun, Robert 6-24-2020 60

Vague (611, 403)

Overruled

282:11 - 282:22 Klun, Robert 6-24-2020

 282 11 Q. Okay. Let's ask you a question

 282 12 here, Mr. Klun.

 282 13 You told Mr. Pirtle that when

 282 14 it comes to testing, quality testing,

 282 15 machines, that it's important that they're

 282 16 calibrated right.

 282 17 Do you recall that?

 282 18 A. Yes.

 282 19 Q. And is it -- would you agree

 282 20 that if you lose the calibration plugs or

 282 21 pins for the machine, it's going to be hard

 282 22 to make sure they're calibrated correctly?

Re: [282:11-283:6]

Def Objection - 3M MIL No. 

26

Re: [282:19-282:25]

Def Objection - 701; 702; 

Foundation (602); Vague (611, 

403)

Re: [282:11-

283:6]

Def Objection -

3M MIL No. 26

Overruled

Re: [282:19-

282:25]

Def Objection -

701; 702; 

Foundation 

(602); Vague 

(611, 403)

Sustained

282:24 - 283:12 Klun, Robert 6-24-2020

 282 24 THE WITNESS: I'm not a subject

 282 25 matter expert. Don't know or recall.

 283 1 QUESTIONS BY MR. OVERHOLTZ:

 283 2 Q. But if you don't have the tools

 283 3 you need to calibrate the machine, you can't

 283 4 make sure it's calibrated the right way; is

 283 5 that fair?

 283 6 A. That's fair.

 283 7 (Klun Exhibit 35 marked for

 283 8 identification.)

 283 9 QUESTIONS BY MR. OVERHOLTZ:

 283 10 Q. Okay. Let me show you what

 283 11 we'll mark as Exhibit Number 35, which is

 283 12 P2270. And I want to start with --

Re: [282:11-283:6]

Def Objection - 3M MIL No. 

26

Re: [282:19-282:25]

Def Objection - 701; 702; 

Foundation (602); Vague (611, 

403)

Re: [283:7-283:12]

Def Objection - Foundation 

(602)

Re: [282:11-

283:6]

Def Objection -

3M MIL No. 26

Overruled

Re: [282:19-

282:25]

Def Objection -

701; 702; 

Foundation 

(602); Vague 

(611, 403)

Sustained

Re: [283:7-

283:12]

Def Objection -

Foundation (602)

Overruled

Re: [283:7-283:12]

Baker MIL 1

Prior ruling 

stands.

283:24 - 284:18 Klun, Robert 6-24-2020

 283 24 Q. So if we can go to the last

 283 25 page, Mr. Klun, and I'll have it blown up for

 284 1 you, there's an e-mail from -- there's an

 284 2 e-mail from a Roberto Ramirez Blanco down at

 284 3 the bottom. And you see the signature line

Re: [283:24-285:14]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [284:16-284:24]

Def Objection - Hearsay (801, 

802); Foundation (602)

Re: [283:24-

285:14]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [283:24-285:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 61 of 151
Klun, Robert 6-24-2020 61

 284 4 is RobertoRamirez@TJR-mex.com.

 284 5 Do you see that?

 284 6 A. Yes.

 284 7 Q. Okay. And this e-mail is from

 284 8 August 1st of 2002. Okay?

 284 9 It says, "Hi, Don, I'm sending

 284 10 you two photos where you can see the

 284 11 equipment I am talking about, and another of

 284 12 an ARC box where we test earplugs and where

 284 13 we put the calibration plug, which are lost."

 284 14 Do you see that?

 284 15 A. Yes.

 284 16 Q. Okay. So in August of 2002,

 284 17 the guys down at TJR Mexico are saying that

 284 18 they've lost the calibration plugs, right?

Re: [284:16-

284:24]

Def Objection -

Hearsay (801, 

802); Foundation 

(602)

Overruled

284:20 - 285:3 Klun, Robert 6-24-2020

 284 20 THE WITNESS: All I can see is

 284 21 what the document is saying. The

 284 22 calibration -- what the individual

 284 23 said, "the calibration plug, which are

 284 24 lost."

 284 25 

 285 1 QUESTIONS BY MR. OVERHOLTZ:

 285 2 Q. Okay. And that's not a good

 285 3 thing, right?

Re: [283:24-285:14]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [284:16-284:24]

Def Objection - Hearsay (801, 

802); Foundation (602)

Re: [283:24-

285:14]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [284:16-

284:24]

Def Objection -

Hearsay (801, 

802); Foundation 

(602)

Overruled

Re: [283:24-285:14]

Baker MIL 1

Prior ruling 

stands.

285:5 - 285:14 Klun, Robert 6-24-2020

 285 5 THE WITNESS: Was there a

 285 6 question?

 285 7 QUESTIONS BY MR. OVERHOLTZ:

 285 8 Q. Sure.

 285 9 It's not a good thing to have

 285 10 lost the calibration plugs for your quality

 285 11 control machines down in Mexico where you're

 285 12 assembling and testing the plugs, right?

 285 13 A. I would say it's not a good

 285 14 thing.

Re: [283:24-285:14]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [283:24-

285:14]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [283:24-285:14]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 62 of 151
Klun, Robert 6-24-2020 62

289:7 - 289:14 Klun, Robert 6-24-2020

 289 7 In your role at quality at

 289 8 Aearo, do you believe it would be good

 289 9 quality control procedure for the calibration

 289 10 plugs for the quality control machine for the

 289 11 yellow end of the Combat Arms Earplug to be

 289 12 lost for months and months when you're

 289 13 selling those plugs to the United States

 289 14 military?

Re: [289:7-289:19]

Def Objection - Argumentative 

(611, 403); Foundation (602); 

702

Re: [289:7-290:9]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [289:7-

289:14]

Def Objection -

Argumentative 

(611, 403); 

Foundation 

(602); 702; 3M 

MIL No. 26

Overruled

289:16 - 289:23 Klun, Robert 6-24-2020

 289 16 THE WITNESS: I don't know

 289 17 whether nor recall whether these plugs

 289 18 were really lost. I don't know any of

 289 19 this.

 289 20 QUESTIONS BY MR. OVERHOLTZ:

 289 21 Q. I mean, you don't think Ron

 289 22 Kieper was lying about them being lost,

 289 23 right?

Re: [289:7-289:19]

Def Objection - Argumentative 

(611, 403); Foundation (602); 

702

Re: [289:7-290:9]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [289:21-290:1]

Def Objection - Argumentative 

(611, 403); Foundation (602)

Re: [289:16-

289:20]

Def Objection -

3M MIL No. 26

Overruled

Re: [289:21-

289:23]

Def Objection -

Argumentative 

(611, 403); 

Foundation (602)

Sustained

289:25 - 290:6 Klun, Robert 6-24-2020

 289 25 THE WITNESS: Go by what the

 290 1 document says, what Ron said.

 290 2 QUESTIONS BY MR. OVERHOLTZ:

 290 3 Q. Did you have any reason to

 290 4 believe Mr. Ramirez from TJR Mexico was lying

 290 5 when he said, hey, we've lost the plugs and

 290 6 we need some more?

Re: [289:7-290:9]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [289:21-290:1]

Def Objection - Argumentative 

(611, 403); Foundation (602)

Re: [290:3-290:9]

Def Objection - Foundation 

(602)

Re: [289:25-

290:1]

Def Objection -

Argumentative 

(611, 403); 

Foundation (602)

Sustained

Re: [290:2-

290:2]

Def Objection -

3M MIL No. 26

Sustained

Re: [290:3-

290:6]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 63 of 151
Klun, Robert 6-24-2020 63

Foundation (602)

Sustained

290:8 - 290:9 Klun, Robert 6-24-2020

 290 8 THE WITNESS: I don't know

 290 9 Mr. Ramirez.

Re: [289:7-290:9]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [290:3-290:9]

Def Objection - Foundation 

(602)

Re: [290:8-

290:9]

Def Objection -

Foundation (602)

Sustained

291:7 - 291:15 Klun, Robert 6-24-2020

 291 7 QUESTIONS BY MR. OVERHOLTZ:

 291 8 Q. Isn't it true that you guys at

 291 9 Aearo were relying on the folks at TJR Mexico

 291 10 to put these Combat Arms Earplugs together

 291 11 and test them with those ARC machines that

 291 12 were properly calibrated to make sure that

 291 13 that yellow end of that earplug would work

 291 14 and protect a soldier's hearing when they

 291 15 were out defending our country?

Re: [291:8-291:18]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602)

Re: [291:8-291:18]

Def Objection - 3M MIL No. 

26

Re: [291:8-

291:18]

Def Objection -

Argumentative; 

Vague (611, 

403); Foundation 

(602)

OVERRULED; 

however, the 

following 

portion must be 

removed: “and 

protect a 

soldier’s hearing 

when they were 

out defending 

our country”

Re: [291:8-

291:18]

Def Objection -

3M MIL No. 26

SUSTAINED 

(asked and 

answered)

Re: [290:21-291:18]

Baker MIL 1

Prior ruling 

stands.

291:17 - 291:18 Klun, Robert 6-24-2020

 291 17 THE WITNESS: I don't know or

 291 18 recall the situation.

Re: [291:8-291:18]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602)

Re: [291:8-291:18]

Def Objection - 3M MIL No. 

26

Re: [291:8-

291:18]

Def Objection -

Argumentative; 

Vague (611, 

403); Foundation 

(602)

Re: [290:21-291:18]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 64 of 151
Klun, Robert 6-24-2020 64

OVERRULED; 

however, the 

following 

portion must be 

removed: “and 

protect a 

soldier’s hearing 

when they were 

out defending 

our country”

Re: [291:8-

291:18]

Def Objection -

3M MIL No. 26

SUSTAINED 

(asked and 

answered)

292:1 - 292:8 Klun, Robert 6-24-2020

 292 1 QUESTIONS BY MR. OVERHOLTZ:

 292 2 Q. But you guys at Aearo couldn't

 292 3 do anything to rectify the problem with these

 292 4 ARC machines that weren't calibrated right

 292 5 down in Mexico, that only cost $700, for

 292 6 months and months between 2002 and 2003 to

 292 7 make sure those plugs could be tested

 292 8 appropriately; isn't that true?

Re: [292:2-292:10]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602); 702; 3M MIL No. 26

Re: [292:2-

292:10]

Def Objection -

Argumentative; 

Vague (611, 

403); Foundation 

(602); 702; 3M 

MIL No. 26

Sustained

Re: [292:1-292:10]

Baker MIL 1

Prior ruling 

stands.

292:10 - 292:10 Klun, Robert 6-24-2020

 292 10 THE WITNESS: I don't know.

Re: [292:2-292:10]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602); 702; 3M MIL No. 26

Re: [292:2-

292:10]

Def Objection -

Argumentative; 

Vague (611, 

403); Foundation 

(602); 702; 3M 

MIL No. 26

Sustained

Re: [292:1-292:10]

Baker MIL 1

Prior ruling 

stands.

293:2 - 293:16 Klun, Robert 6-24-2020

 293 2 So for the Combat Arms

 293 3 version 2 dual-ended plug, okay, that's the

 293 4 plug we've been talking about, right?

Re: [293:2-293:16]

Def Objection - 3M MIL No. 

26

Re: [293:2-

293:16]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 65 of 151
Klun, Robert 6-24-2020 65

 293 5 A. Yes.

 293 6 Q. And that's this plug right

 293 7 there, right?

 293 8 A. Yes.

 293 9 Q. Okay. So what we know, what we

 293 10 learned through these documents, is that

 293 11 there was a QC machine, and that machine is

 293 12 called the ARC, right?

 293 13 A. Yes.

 293 14 Q. The acoustic resistance

 293 15 checker, correct?

 293 16 A. Yes.

3M MIL No. 26

Overruled

293:23 - 294:8 Klun, Robert 6-24-2020

 293 23 Q. Okay. And the other thing we

 293 24 learned about them is that they need to be

 293 25 calibrated, right?

 294 1 A. Yes.

 294 2 Q. Okay. And the ARC machines,

 294 3 they test the yellow end of the plug, right?

 294 4 A. Yes.

 294 5 Q. And the yellow end, that's the

 294 6 end with the filter in it that protects you

 294 7 from loud noise, like an impulse noise; is

 294 8 that right?

Re: [294:2-294:4]

Def Objection - 3M MIL No. 

26

Re: [294:5-294:11]

Def Objection - Foundation 

(602)

Re: [294:2-

294:4]

Def Objection -

3M MIL No. 26

Overruled

Re: [294:5-

294:11]

Def Objection -

Foundation (602)

Overruled

294:10 - 294:11 Klun, Robert 6-24-2020

 294 10 THE WITNESS: I assume that to

 294 11 be true.

Re: [294:5-294:11]

Def Objection - Foundation 

(602)

Re: [294:5-

294:11]

Def Objection -

Foundation (602)

Overruled

298:5 - 299:13 Klun, Robert 6-24-2020

 298 5 Q. Okay. So, Mr. Klun, you see

 298 6 this is an e-mail from Brian Myers on May 7,

 298 7 2003, to John Komada at DSCP.

 298 8 Do you see that?

 298 9 A. Yes.

 298 10 Q. Okay. And Brian is writing --

 298 11 do you know who Mr. Komada is?

 298 12 A. No, I do not know.

 298 13 Q. You know who the Defense

Re: [298:5-298:16]

Def Objection - Foundation 

(602)

Re: [298:17-301:20]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [299:9-299:17]

Def Objection - Foundation 

(602); 702

Re: [298:5-

298:16]

Def Objection -

Foundation (602)

Overruled

Re: [298:17-

301:20]

Def Objection -

3M MIL No. 26; 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 66 of 151
Klun, Robert 6-24-2020 66

 298 14 Logistics Agency is that handles purchasing

 298 15 for the US military, right?

 298 16 A. No. I don't know nor recall.

 298 17 Q. Let's see what Mr. Myers, who

 298 18 you worked with, told Mr. Komada back in

 298 19 2003.

 298 20 He says, "John, I had to

 298 21 consult with a few other folks, but these

 298 22 changes are warranted. Two notes for you:

 298 23 Number 1, we consider the acoustical

 298 24 impedance test under sampling for inspection

 298 25 paragraph to be proprietary."

 299 1 Do you see that?

 299 2 A. Yes.

 299 3 Q. Did you remember that the ARC

 299 4 testing that Aearo put into this -- this

 299 5 medical procurement description document,

 299 6 that Aearo considered that to be a

 299 7 proprietary test?

 299 8 A. Do not know nor recall.

 299 9 Q. And the acoustical impedance

 299 10 test that Aearo was putting into that medical

 299 11 procurement item description document, that

 299 12 was the ARC testing, right? That's what ARC

 299 13 tested?

Foundation (602)

Overruled

Re: [299:9-

299:17]

Def Objection -

Foundation 

(602); 702

Overruled

299:16 - 300:15 Klun, Robert 6-24-2020

 299 16 THE WITNESS: That's what the

 299 17 documents say, yes.

 299 18 QUESTIONS BY MR. OVERHOLTZ:

 299 19 Q. Because if we look back at

 299 20 slide 78, which is already an exhibit, under

 299 21 Sound Attenuation, this Medical Procurement

 299 22 Item Description said, "Sampling for

 299 23 inspection of sound attenuation of the

 299 24 level-dependent yellow end shall be

 299 25 100 percent."

 300 1 Right?

 300 2 A. Yes.

 300 3 Q. "And shall be verified using an

Re: [298:17-301:20]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [299:9-299:17]

Def Objection - Foundation 

(602); 702

Re: [300:7-300:18]

Def Objection - Hearsay (801, 

802); Foundation (602); 

Compound (611, 403)

Re: [298:17-

301:20]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [299:9-

299:17]

Def Objection -

Foundation 

(602); 702

Overruled

Re: [300:7-

300:18]

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 67 of 151
Klun, Robert 6-24-2020 67

 300 4 acoustical impedance test."

 300 5 Right?

 300 6 A. Yes, I see that now.

 300 7 Q. Okay. So, Zach, if you can let

 300 8 me have back the ELMO real quick.

 300 9 So from what we saw from Brian

 300 10 Myers' e-mail to John Komada is that Aearo

 300 11 said that the ARC test was a proprietary

 300 12 test, and under that sampling paragraph, they

 300 13 were going to test 100 percent of the plugs

 300 14 for sound attenuation of the yellow end using

 300 15 that acoustical resistance test, right?

Def Objection -

Hearsay (801, 

802); Foundation 

(602); Compound 

(611, 403)

Overruled

300:17 - 300:24 Klun, Robert 6-24-2020

 300 17 THE WITNESS: That's what the

 300 18 document says.

 300 19 QUESTIONS BY MR. OVERHOLTZ:

 300 20 Q. And then the other thing we

 300 21 learned was that at least by August of '02

 300 22 through May of '03, when Brian Myers sent

 300 23 that e-mail, that TJR Mexico had lost the

 300 24 calibration plugs, right?

Re: [298:17-301:20]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [300:7-300:18]

Def Objection - Hearsay (801, 

802); Foundation (602); 

Compound (611, 403)

Re: [298:17-

301:20]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [300:7-

300:18]

Def Objection -

Hearsay (801, 

802); Foundation 

(602); Compound 

(611, 403)

Overruled

301:1 - 301:17 Klun, Robert 6-24-2020

 301 1 THE WITNESS: I personally

 301 2 don't know and don't recall.

 301 3 QUESTIONS BY MR. OVERHOLTZ:

 301 4 Q. That's what those documents

 301 5 said, right, between Kieper --

 301 6 A. That's what the document says.

 301 7 Q. Okay. And the other thing that

 301 8 we know is that Aearo had TJR Mexico assemble

 301 9 and QC test the plugs, right?

 301 10 A. Yes.

 301 11 Q. All right. So, now -- so in

Re: [298:17-301:20]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [301:11-301:20]

Def Objection - Foundation 

(602)

Re: [298:17-

301:20]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [301:11-

301:20]

Def Objection -

Foundation (602)

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 68 of 151
Klun, Robert 6-24-2020 68

 301 12 2003 then -- this is about a year before you

 301 13 sent Kieper and Zielinski down to San Luis

 301 14 Potos� to check on the situation -- things

 301 15 had gotten a lot worse with respect to the

 301 16 assembly and testing of the plugs at TJR.

 301 17 Do you remember that?

301:19 - 301:20 Klun, Robert 6-24-2020

 301 19 THE WITNESS: I do not know nor

 301 20 recall.

Re: [298:17-301:20]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [301:11-301:20]

Def Objection - Foundation 

(602)

Re: [298:17-

301:20]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [301:11-

301:20]

Def Objection -

Foundation (602)

Sustained

301:21 - 302:1 Klun, Robert 6-24-2020

 301 21 (Klun Exhibit 37 marked for

 301 22 identification.)

 301 23 QUESTIONS BY MR. OVERHOLTZ:

 301 24 Q. All right. Let's look at -- if

 301 25 we could go to slide 83, Zach, and we'll mark

 302 1 as Exhibit Number 37 P2269.

Re: [301:21-302:1]

Def Objection - Foundation 

(602)

Re: [301:21-

302:1]

Def Objection -

Foundation (602)

Overruled

302:8 - 303:11 Klun, Robert 6-24-2020

 302 8 QUESTIONS BY MR. OVERHOLTZ:

 302 9 Q. So this is Exhibit 37, which is

 302 10 P2269. This is a February 28, 2003 monthly

 302 11 report from Elliott Berger to Dick Knauer.

 302 12 Do you see that, Mr. Klun?

 302 13 A. Yes. Yes.

 302 14 Q. On February 28th, Elliott

 302 15 Berger, who ran the lab, writes to Dick

 302 16 Knauer, his boss, and if you can look with me

 302 17 at the bottom, says, "RWK" -- that would be

 302 18 Ron Kieper, right?

 302 19 A. Yes.

 302 20 Q. "RWK assisted Gordon Grogan and

 302 21 spoke with Bob Zielinski about the problems

Re: [302:9-303:23]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [303:9-303:14]

Def Objection - Foundation 

(602); Vague (611, 403); 702

Re: [302:9-

303:23]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [303:9-

303:14]

Def Objection -

Foundation 

(602); Vague 

(611, 403); 702

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 69 of 151
Klun, Robert 6-24-2020 69

 302 22 with the Combat Arms plugs in Mexico. He

 302 23 recommended that one of the ARCs be sent to

 302 24 Indianapolis so the plugs could be measured

 302 25 in the lab to help determine why Mexico's

 303 1 measurements had an 80 percent reject rate."

 303 2 Do you see that?

 303 3 A. Yes, I see that.

 303 4 Q. And that was on February 28th

 303 5 of 2003 that Mr. Berger put that in his

 303 6 monthly report.

 303 7 Do you see that?

 303 8 A. Yes.

 303 9 Q. And that had caused a big

 303 10 problem, because the plugs down in Mexico

 303 11 were coming in out of spec, right?

303:13 - 303:18 Klun, Robert 6-24-2020

 303 13 THE WITNESS: That, I do not

 303 14 know or recall.

 303 15 QUESTIONS BY MR. OVERHOLTZ:

 303 16 Q. Okay. Because just a day

 303 17 earlier, you had approved a waiver to sell

 303 18 the plugs as-is out of spec, right?

Re: [302:9-303:23]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [303:9-303:14]

Def Objection - Foundation 

(602); Vague (611, 403); 702

Re: [303:16-303:21]

Def Objection - Misstates; 

Argumentative (611, 403)

Re: [302:9-

303:23]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

Re: [303:9-

303:14]

Def Objection -

Foundation 

(602); Vague 

(611, 403); 702

Overruled

Re: [303:16-

303:21]

Def Objection -

Misstates; 

Argumentative 

(611, 403)

Overruled

303:20 - 303:21 Klun, Robert 6-24-2020

 303 20 THE WITNESS: I approved a

 303 21 quality waiver.

Re: [302:9-303:23]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [302:9-

303:23]

Def Objection -

3M MIL No. 26; 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 70 of 151
Klun, Robert 6-24-2020 70

Re: [303:16-303:21]

Def Objection - Misstates; 

Argumentative (611, 403)

Foundation (602)

Overruled

Re: [303:16-

303:21]

Def Objection -

Misstates; 

Argumentative 

(611, 403)

Overruled

303:22 - 303:23 Klun, Robert 6-24-2020

 303 22 (Klun Exhibit 38 marked for

 303 23 identification.)

Re: [302:9-303:23]

Def Objection - 3M MIL No. 

26; Foundation (602)

Re: [302:9-

303:23]

Def Objection -

3M MIL No. 26; 

Foundation (602)

Overruled

304:21 - 305:7 Klun, Robert 6-24-2020

 304 21 Q. So if we can look up at the top

 304 22 there, you see that there is a type of

 304 23 request, and the number is 351.

 304 24 Do you see that?

 304 25 A. Yes.

 305 1 Q. And it says, "Waiver,

 305 2 permission to accept as-is."

 305 3 Do you see that?

 305 4 A. Yes.

 305 5 Q. And as-is means you're just

 305 6 going to sell it with whatever defects it

 305 7 has. As-is, right?

Re: [304:21-307:16]

Def Objection - 3M MIL No. 

26

Re: [305:5-305:9]

Def Objection - Argumentative; 

Misstates (611, 403)

Re: [304:21-

307:16]

Def Objection -

3M MIL No. 26

Overruled

Re: [305:5-

305:9]

Def Objection -

Argumentative; 

Misstates (611, 

403)

Overruled

305:9 - 306:3 Klun, Robert 6-24-2020

 305 9 THE WITNESS: I don't agree.

 305 10 QUESTIONS BY MR. OVERHOLTZ:

 305 11 Q. I mean, as --

 305 12 A. Waiver is -- a waiver doesn't

 305 13 mean it's out of spec.

 305 14 Q. The waiver says, "permission to

 305 15 accept, quote, 'as-is.'"

 305 16 That's what it says on the

 305 17 document, right?

Re: [304:21-307:16]

Def Objection - 3M MIL No. 

26

Re: [305:5-305:9]

Def Objection - Argumentative; 

Misstates (611, 403)

Re: [306:1-306:7]

Def Objection - Foundation 

(602); 702

Re: [304:21-

307:16]

Def Objection -

3M MIL No. 26

Overruled

Re: [305:5-

305:9]

Def Objection -

Argumentative; 

Misstates (611, 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 71 of 151
Klun, Robert 6-24-2020 71

 305 18 A. That's what it says, "as-is."

 305 19 Q. Right.

 305 20 And so if we can look down --

 305 21 and we just saw where Ron Kieper -- if we

 305 22 could just --

 305 23 Yeah, just blow up that test

 305 24 number/process paragraph and through

 305 25 discrepancy, Zach.

 306 1 We saw where Mr. Kieper had

 306 2 reported that there was an 80 percent failure

 306 3 rate of the plugs being out of spec.

403)

Overruled

Re: [306:1-

306:7]

Def Objection -

Foundation 

(602); 702

Overruled

306:5 - 307:13 Klun, Robert 6-24-2020

 306 5 QUESTIONS BY MR. OVERHOLTZ:

 306 6 Q. Right?

 306 7 A. That's what the document says.

 306 8 Q. Right.

 306 9 And so if we see here it says,

 306 10 "test number/process," and then it has a

 306 11 section called Percent Defective.

 306 12 Do you see that?

 306 13 A. Yes.

 306 14 Q. And the number is 80 percent,

 306 15 isn't it?

 306 16 A. That's what the document says.

 306 17 Q. Just like Mr. Berger wrote in

 306 18 his monthly report, right?

 306 19 A. I'd have to see the report of

 306 20 what he wrote to me in the report.

 306 21 Q. I mean, it's the one we just

 306 22 looked at.

 306 23 Do you see the paragraph that

 306 24 says, "discrepancy, explanation of need to

 306 25 waive this product"?

 307 1 A. Yes.

 307 2 Q. Reason for deviating from the

 307 3 process?

 307 4 A. Uh-huh.

 307 5 Q. It says, "Request that the spec

 307 6 range for the Mexico test equipment be

Re: [304:21-307:16]

Def Objection - 3M MIL No. 

26

Re: [306:1-306:7]

Def Objection - Foundation 

(602); 702

Re: [304:21-

307:16]

Def Objection -

3M MIL No. 26

Overruled

Re: [306:1-

306:7]

Def Objection -

Foundation 

(602); 702

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 72 of 151
Klun, Robert 6-24-2020 72

 307 7 increased, both upper and lower limits, by

 307 8 .6 MVs for a temporary time until the test

 307 9 equipment can be tested/calibrated by E-A-R

 307 10 Specialty Composites."

 307 11 Do you see that?

 307 12 A. Yes.

 307 13 And then it says, "By

308:2 - 308:6 Klun, Robert 6-24-2020

 308 2 (Klun Exhibit 39 marked for

 308 3 identification.)

 308 4 QUESTIONS BY MR. OVERHOLTZ:

 308 5 Q. So if we then look at what

 308 6 happened next -- if we can bring up slide 87,

308:9 - 309:18 Klun, Robert 6-24-2020

 308 9 You see this is an e-mail at

 308 10 the top of the page from you on May 7, 2003,

 308 11 with the subject line being "the waiver 351

 308 12 on the Combat Arms filter."

 308 13 Do you see that?

 308 14 A. Uh-huh. Yes.

 308 15 Q. Okay. So on May 7, 2003, you

 308 16 wrote to Greg Grogan, Steve Todor, Bob

 308 17 Zielinski, Dick Knauer, Bill Bogdan and said,

 308 18 "Gordon, I have talked to Dick Knauer and

 308 19 Steve Todor. Based on their input, I approve

 308 20 this waiver."

 308 21 Right?

 308 22 A. I approved my section of the

 308 23 waiver --

 308 24 Q. From the quality department you

 308 25 approved the waiver; is that right?

 309 1 A. No, I don't agree. Quality

 309 2 would have been Steve Todor.

 309 3 Q. Okay. What would have been --

 309 4 by 2003 then, you would have been a technical

 309 5 approval, right?

 309 6 A. Correct, along with Dick

 309 7 Knauer.

 309 8 Q. Yeah. Dick Knauer was Elliott

Re: [308:9-311:12]

Def Objection - 3M MIL No. 

26

Re: [309:15-309:22]

Def Objection - Hearsay (801, 

802); Argumentative; Misstates 

(611, 403)

Re: [308:9-

311:12]

Def Objection -

3M MIL No. 26

Overruled

Re: [309:15-

309:22]

Def Objection -

Hearsay (801, 

802); 

Argumentative; 

Misstates (611, 

403)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 73 of 151
Klun, Robert 6-24-2020 73

 309 9 Berger's boss and Kieper's boss, and he

 309 10 reported up the chain to you in technical,

 309 11 right?

 309 12 A. Dick's -- Dick's the subject

 309 13 matter expert.

 309 14 Q. Yeah.

 309 15 And so you talked to him, and

 309 16 you approved this waiver to sell those

 309 17 earplugs and accept the ones, the 80 percent,

 309 18 that were out of spec, right?

309:20 - 310:2 Klun, Robert 6-24-2020

 309 20 THE WITNESS: As a technical --

 309 21 as a technical representative, I

 309 22 approved my portion of the label.

 309 23 QUESTIONS BY MR. OVERHOLTZ:

 309 24 Q. And that meant that those

 309 25 80 percent plugs that were out of spec

 310 1 originally could now be accepted as-is by

 310 2 increasing the spec range, right?

Re: [308:9-311:12]

Def Objection - 3M MIL No. 

26

Re: [309:15-309:22]

Def Objection - Hearsay (801, 

802); Argumentative; Misstates 

(611, 403)

Re: [309:24-310:5]

Def Objection - Foundation 

(602); 702

Re: [308:9-

311:12]

Def Objection -

3M MIL No. 26

Overruled

Re: [309:15-

309:22]

Def Objection -

Hearsay (801, 

802); 

Argumentative; 

Misstates (611, 

403)

Overruled

Re: [309:24-

310:5]

Def Objection -

Foundation 

(602); 702

Overruled

310:4 - 310:15 Klun, Robert 6-24-2020

 310 4 THE WITNESS: I'm not a subject

 310 5 matter expert.

 310 6 QUESTIONS BY MR. OVERHOLTZ:

 310 7 Q. But we know --

 310 8 A. I --

 310 9 Q. Go ahead.

 310 10 A. Go ahead. Go ahead.

Re: [308:9-311:12]

Def Objection - 3M MIL No. 

26

Re: [309:24-310:5]

Def Objection - Foundation 

(602); 702

Re: [310:11-310:17]

Def Objection - Argumentative; 

Re: [308:9-

311:12]

Def Objection -

3M MIL No. 26

Overruled

Re: [309:24-

310:5]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 74 of 151
Klun, Robert 6-24-2020 74

 310 11 Q. When you approved this waiver

 310 12 in May of '03, Mr. Kieper knew that the

 310 13 people down in Mexico had lost the

 310 14 calibration plugs. The machines weren't even

 310 15 calibrated.

Misstates (611, 403); 

Foundation (602)

Foundation 

(602); 702

Overruled

Re: [310:11-

310:17]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Sustained

310:17 - 310:25 Klun, Robert 6-24-2020

 310 17 THE WITNESS: I did not know.

 310 18 QUESTIONS BY MR. OVERHOLTZ:

 310 19 Q. So the specs that you were --

 310 20 A. Nor -- that situation.

 310 21 Q. I mean, the spec range that

 310 22 gets increased on this waiver, it's going to

 310 23 be applied by machines where the calibration

 310 24 plugs have been lost.

 310 25 That was the situation, right?

Re: [308:9-311:12]

Def Objection - 3M MIL No. 

26

Re: [310:11-310:17]

Def Objection - Argumentative; 

Misstates (611, 403); 

Foundation (602)

Re: [310:21-311:3]

Def Objection - Foundation 

(602); 702

Re: [308:9-

311:12]

Def Objection -

3M MIL No. 26

Overruled

Re: [310:11-

310:17]

Def Objection -

Argumentative; 

Misstates (611, 

403); Foundation 

(602)

Sustained

Re: [310:21-

311:3]

Def Objection -

Foundation 

(602); 702

Overruled

311:2 - 311:12 Klun, Robert 6-24-2020

 311 2 THE WITNESS: I don't know nor

 311 3 recall.

 311 4 QUESTIONS BY MR. OVERHOLTZ:

 311 5 Q. I mean, and this testing

 311 6 problem was causing problems for 3M to meet

 311 7 orders, right, and that's why you had to

 311 8 grant the waivers?

Re: [308:9-311:12]

Def Objection - 3M MIL No. 

26

Re: [310:21-311:3]

Def Objection - Foundation 

(602); 702

Re: [308:9-

311:12]

Def Objection -

3M MIL No. 26

Overruled

Re: [310:21-

311:3]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 75 of 151
Klun, Robert 6-24-2020 75

 311 9 A. That, I can't recall.

 311 10 (Klun Exhibits 40 and 41 marked

 311 11 for identification.)

 311 12 QUESTIONS BY MR. OVERHOLTZ:

Foundation 

(602); 702

Overruled

311:16 - 311:20 Klun, Robert 6-24-2020

 311 16 And if you can see, there's an

 311 17 e-mail from Bob Zielinski to Dick Knauer at

 311 18 the bottom of the screen there.

 311 19 Can you see that, Mr. Klun?

 311 20 A. Yes.

312:1 - 313:19 Klun, Robert 6-24-2020

 312 1 QUESTIONS BY MR. OVERHOLTZ:

 312 2 Q. It says, "Dick, as you can see

 312 3 from these messages, they are continuing to

 312 4 increase the forecast on the Combat Arms

 312 5 plugs. We have word that we might get an

 312 6 order for over 300,000 pair. If we do, we

 312 7 will not be able to fill that order

 312 8 completely until sometime in September

 312 9 because of constraint at the tester."

 312 10 Do you see that?

 312 11 A. Yes.

 312 12 Q. And so Dick Knauer, who

 312 13 reported to you, e-mails Elliott Berger and

 312 14 says, "Berger, please see attached," on July

 312 15 26, 2004.

 312 16 Do you see that?

 312 17 A. Not yet, I don't see this.

 312 18 Q. It's up at the top of the

 312 19 screen there. That's the response e-mail.

 312 20 A. Okay. All right.

 312 21 MR. FIELDS: I'm sorry,

 312 22 Mr. Overholtz --

 312 23 MR. OVERHOLTZ: This will be

 312 24 Exhibit 41.

 312 25 

 313 1 QUESTIONS BY MR. OVERHOLTZ:

 313 2 Q. So if we look at Exhibit 41,

 313 3 and I've got it blown up there on the left

Re: [312:2-313:24]

Def Objection - Foundation 

(602)

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [313:16-313:24]

Def Objection - Hearsay (801, 

802); Argumentative (611, 

403); Foundation (602); 702

Re: [312:2-

313:24]

Def Objection -

Foundation (602)

Overruled

Re: [313:16-

313:24]

Def Objection -

Hearsay (801, 

802); 

Argumentative 

(611, 403); 

Foundation 

(602); 702

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 76 of 151
Klun, Robert 6-24-2020 76

 313 4 there of the screen, your report, Dick

 313 5 Knauer, e-mails Elliott Berger and says,

 313 6 "Berger, based on this request, please check

 313 7 on the timing and cost of both one new and

 313 8 two new test units."

 313 9 Do you see that?

 313 10 A. Yes, I see it.

 313 11 Q. Did Mr. Knauer tell you, hey,

 313 12 hey, Mr. Klun, they're having problems and

 313 13 constraints at the tester. We need to try to

 313 14 get some new test units?

 313 15 A. No, I do not know nor recall.

 313 16 Q. I mean, you're having problems,

 313 17 you're selling as-is plugs under waiver, and

 313 18 you're talking about buying one, maybe two,

 313 19 $700 machines to test the plugs?

313:22 - 315:6 Klun, Robert 6-24-2020

 313 22 THE WITNESS: That's what I

 313 23 said. I don't know nor recall this

 313 24 document.

 313 25 

 314 1 QUESTIONS BY MR. OVERHOLTZ:

 314 2 Q. Okay. So in light of this,

 314 3 instead of -- instead of getting the machines

 314 4 fixed, you guys just grant another quality

 314 5 waiver down in Mexico, right?

 314 6 A. I don't know nor recall.

 314 7 (Klun Exhibit 42 marked for

 314 8 identification.)

 314 9 QUESTIONS BY MR. OVERHOLTZ:

 314 10 Q. All right. Let's look at

 314 11 slide 92, if we can, Zach, and we'll mark

 314 12 this as Exhibit 42, which is BK-408.

 314 13 And I've written on the right

 314 14 there that October 11th, Aearo issues a

 314 15 second quality waiver for the ARC testing in

 314 16 Mexico.

 314 17 Do you remember the second

 314 18 waiver that got approved?

Re: [312:2-313:24]

Def Objection - Foundation 

(602)

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [313:16-313:24]

Def Objection - Hearsay (801, 

802); Argumentative (611, 

403); Foundation (602); 702

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:10-316:24]

Def Objection - Foundation 

(602)

Re: [312:2-

313:24]

Def Objection -

Foundation (602)

Overruled

Re: [313:16-

313:24]

Def Objection -

Hearsay (801, 

802); 

Argumentative 

(611, 403); 

Foundation 

(602); 702

Overruled

Re: [314:2-

319:8]

Def Objection -

3M MIL No. 26

Overruled

Re: [314:10-

316:24]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 77 of 151
Klun, Robert 6-24-2020 77

 314 19 A. No, I do not recall.

 314 20 Q. And if we look at this waiver,

 314 21 it's number 416, dated October 11, 2004,

 314 22 there on the top right.

 314 23 Do you see that?

 314 24 A. Yes.

 314 25 Q. And then it says -- this time

 315 1 it's marked "deviation, permission in advance

 315 2 of manufacture," right?

 315 3 A. Yes.

 315 4 Q. Okay. And so the -- and the

 315 5 finished product is the Combat Arms, right?

 315 6 A. Yes.

Foundation (602)

315:25 - 316:4 Klun, Robert 6-24-2020

 315 25 Q. So for 35 days they're going to

 316 1 keep putting Combat Arms plugs together and

 316 2 testing them on the machines that haven't

 316 3 been calibrated, to sell to the US military,

 316 4 right?

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:10-316:24]

Def Objection - Foundation 

(602)

Re: [315:25-316:7]

Def Objection - Foundation 

(602); Argumentative; 

Misstates (611, 403); Hearsay 

(801, 802)

Re: [314:10-

316:24]

Def Objection -

Foundation (602)

Overruled

Re: [315:25-

316:7]

Def Objection -

Foundation 

(602); 

Argumentative; 

Misstates (611, 

403); Hearsay 

(801, 802)

Overruled

316:6 - 317:5 Klun, Robert 6-24-2020

 316 6 THE WITNESS: Go with what the

 316 7 document says.

 316 8 QUESTIONS BY MR. OVERHOLTZ:

 316 9 Q. All right. And then under

 316 10 Material Disposition below it says, "Use,

 316 11 quote, 'as-is.'"

 316 12 Right?

 316 13 And it's approved by quality,

 316 14 technical and contract manufacturing.

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:10-316:24]

Def Objection - Foundation 

(602)

Re: [314:2-

319:8]

Def Objection -

3M MIL No. 26

Overruled

Re: [314:10-

316:24]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 78 of 151
Klun, Robert 6-24-2020 78

 316 15 Do you see that?

 316 16 A. Yes.

 316 17 Is my name on there?

 316 18 Q. No, I didn't see your name. I

 316 19 saw Dick Knauer, who reported to you, on

 316 20 there.

 316 21 A. Okay.

 316 22 Q. He was technical, right?

 316 23 A. Correct. So then I'll just say

 316 24 I don't know nor recall this document.

 316 25 Q. Well, let me ask you this:

 317 1 When these plugs that were assembled and

 317 2 tested and accepted as-is that were made

 317 3 under waiver, did you guys send a copy of

 317 4 this waiver information to the military with

 317 5 the boxes of plugs so they'd know about it?

Re: [315:25-316:7]

Def Objection - Foundation 

(602); Argumentative; 

Misstates (611, 403); Hearsay 

(801, 802)

Re: [316:25-317:8]

Def Objection - Foundation 

(602); Compound (611, 403)

Re: [315:25-

316:7]

Def Objection -

Foundation 

(602); 

Argumentative;

Misstates (611, 

403); Hearsay 

(801, 802)

Overruled

Re: [316:25-

317:8]

Def Objection -

Foundation 

(602); Compound 

(611, 403)

Overruled

317:7 - 317:14 Klun, Robert 6-24-2020

 317 7 THE WITNESS: I do not know nor

 317 8 recall.

 317 9 QUESTIONS BY MR. OVERHOLTZ:

 317 10 Q. Do you think they deserved to

 317 11 know that the plugs they were buying, that

 317 12 Aearo was letting the people in Mexico sell

 317 13 plugs that were out of spec, on uncalibrated

 317 14 machines?

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [316:25-317:8]

Def Objection - Foundation 

(602); Compound (611, 403)

Re: [317:10-317:17]

Def Objection - Foundation 

(602); Misstates; 

Argumentative (611, 403); 701

Re: [314:2-

319:8]

Def Objection -

3M MIL No. 26

Overruled

Re: [316:25-

317:8]

Def Objection -

Foundation 

(602); Compound 

(611, 403)

Overruled

Re: [317:10-

317:17]

Def Objection -

Foundation 

(602); Misstates; 

Argumentative 

(611, 403); 701

Sustained

Re: [317:10-318:13]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 79 of 151
Klun, Robert 6-24-2020 79

317:16 - 317:25 Klun, Robert 6-24-2020

 317 16 THE WITNESS: Again, I don't

 317 17 know nor recall this.

 317 18 QUESTIONS BY MR. OVERHOLTZ:

 317 19 Q. Yeah, but what do you think is

 317 20 right or wrong? Do you have an idea as to

 317 21 whether or not it's wrong to sell plugs that

 317 22 are out of spec, on uncalibrated machines, to

 317 23 the United States military for the soldiers

 317 24 to rely on when they were being deployed over

 317 25 to Afghanistan and Iraq in 2004?

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [317:10-317:17]

Def Objection - Foundation 

(602); Misstates; 

Argumentative (611, 403); 701

Re: [317:19-318:4]

Def Objection - 701; 

Foundation (602); Misstates; 

Argumentative (611, 403)

Re: [314:2-

319:8]

Def Objection -

3M MIL No. 26

Overruled

Re: [317:10-

317:17]

Def Objection -

Foundation 

(602); Misstates; 

Argumentative 

(611, 403); 701

Sustained

Re: [317:19-

318:4]

Def Objection -

701; Foundation 

(602); Misstates; 

Argumentative 

(611, 403)

OVERRULED; 

however, the

following lines 

must be deleted: 

“for the soldiers 

to rely on when 

they were being 

deployed over to 

Afghanistan and 

Iraq in 2004”

Re: [317:10-318:13]

Baker MIL 1

Prior ruling 

stands.

318:2 - 318:9 Klun, Robert 6-24-2020

 318 2 THE WITNESS: This is a waiver

 318 3 of the test equipment, not the

 318 4 product.

 318 5 QUESTIONS BY MR. OVERHOLTZ:

 318 6 Q. Yeah, they -- and without

 318 7 calibration and without proper testing, you

 318 8 can't verify the quality of the product,

 318 9 right?

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [317:19-318:4]

Def Objection - 701; 

Re: [314:2-

319:8]

Def Objection -

3M MIL No. 26

Overruled

Re: [317:19-

318:4]

Def Objection -

701; Foundation 

Re: [317:10-318:13]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 80 of 151
Klun, Robert 6-24-2020 80

Foundation (602); Misstates; 

Argumentative (611, 403)

Re: [318:6-318:13]

Def Objection - Foundation 

(602); 702

(602); Misstates; 

Argumentative 

(611, 403)

OVERRULED; 

however, the

following lines 

must be deleted: 

“for the soldiers 

to rely on when 

they were being 

deployed over to 

Afghanistan and 

Iraq in 2004”

Re: [318:6-

318:13]

Def Objection -

Foundation 

(602); 702

Overruled

318:11 - 318:20 Klun, Robert 6-24-2020

 318 11 THE WITNESS: Not being a

 318 12 subject matter expert, I don't know

 318 13 nor can I recall this.

 318 14 QUESTIONS BY MR. OVERHOLTZ:

 318 15 Q. So in November of 2004, as we

 318 16 saw previously in Exhibit 16, you sent Ron

 318 17 and Bob down to Mexico to check on the

 318 18 situation, right?

 318 19 A. The company sent Ron and Bob

 318 20 down, yes.

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [318:6-318:13]

Def Objection - Foundation 

(602); 702

Re: [314:2-

319:8]

Def Objection -

3M MIL No. 26

Overruled

Re: [318:6-

318:13]

Def Objection -

Foundation 

(602); 702

Overruled

Re: [317:10-318:13]

Baker MIL 1

Prior ruling 

stands.

318:21 - 319:8 Klun, Robert 6-24-2020

 318 21 Q. All right. And if we can look

 318 22 at slide 100 again, Zach.

 318 23 You sent this e-mail -- or this

 318 24 is fine. You sent this e-mail on

 318 25 November 19, '04, to Kieper and Knauer, Todor

 319 1 and Power and Zielinski regarding TJR

 319 2 quality, and you attach an action plan --

 319 3 A. Yes, that's what the document

Re: [312:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-319:8]

Def Objection - 3M MIL No. 

26

Re: [314:2-

319:8]

Def Objection -

3M MIL No. 26

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 81 of 151
Klun, Robert 6-24-2020 81

 319 4 says.

 319 5 Q. Right.

 319 6 And then it said the plans are

 319 7 for Bob and Ron to travel to Mexico, right?

 319 8 A. Yes.

319:23 - 320:2 Klun, Robert 6-24-2020

 319 23 Q. That's the one on number 3 that

 319 24 said, "because of equipment measurement

 319 25 problems, TJR continues to operate with a

 320 1 quality waiver," right?

 320 2 A. Yes.

Re: [319:23-320:2]

Def Objection - 3M MIL No. 

26

Re: [319:23-

320:2]

Def Objection -

3M MIL No. 26

Overruled

320:11 - 321:5 Klun, Robert 6-24-2020

 320 11 Q. I mean, this action plan on the

 320 12 slide 104, the third page, it said, "R&D

 320 13 quality problem for many reasons has taken

 320 14 over six months to address equipment

 320 15 calibration problems for the Combat Arms

 320 16 product."

 320 17 Do you see that?

 320 18 A. It says, "R&D quality

 320 19 position," not problem.

 320 20 Q. Oh. Let's do it again.

 320 21 "R&D quality position," right?

 320 22 A. Right.

 320 23 Q. "For many reasons has taken

 320 24 over six months to address equipment

 320 25 calibration problems for the Combat Arms

 321 1 product," right?

 321 2 A. That's what the document says.

 321 3 Q. But we know from the documents

 321 4 that the plugs had been lost since at least

 321 5 August of '02, right?

Re: [320:11-323:2]

Def Objection - 3M MIL No. 

26

Re: [321:3-321:8]

Def Objection - Foundation 

(602)

Re: [320:11-

323:2]

Def Objection -

3M MIL No. 26

Overruled

Re: [321:3-

321:8]

Def Objection -

Foundation (602)

Overruled

321:7 - 321:15 Klun, Robert 6-24-2020

 321 7 THE WITNESS: That, I do not

 321 8 know.

 321 9 QUESTIONS BY MR. OVERHOLTZ:

 321 10 Q. I mean, this is two years

 321 11 later --

 321 12 A. Nor recall.

Re: [320:11-323:2]

Def Objection - 3M MIL No. 

26

Re: [321:3-321:8]

Def Objection - Foundation 

(602)

Re: [320:11-

323:2]

Def Objection -

3M MIL No. 26

Overruled

Re: [321:3-

321:8]

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 82 of 151
Klun, Robert 6-24-2020 82

 321 13 Q. This is two years later from

 321 14 Mr. Ramirez e-mailing "we've lost the

 321 15 calibration plugs," right?

Re: [321:13-321:18]

Def Objection - Foundation 

(602)

Def Objection -

Foundation (602)

Overruled

Re: [321:13-

321:18]

Def Objection -

Foundation (602)

Overruled

321:17 - 323:2 Klun, Robert 6-24-2020

 321 17 THE WITNESS: I do not know nor

 321 18 recall that e-mail.

 321 19 QUESTIONS BY MR. OVERHOLTZ:

 321 20 Q. Yeah, but that's what the

 321 21 e-mail said, right?

 321 22 A. That's what the documents say.

 321 23 Q. So you didn't -- you don't

 321 24 remember getting a call from Bob or Ron while

 321 25 they were down in Mexico, right?

 322 1 A. Correct. I do not recall.

 322 2 (Klun Exhibit 43 marked for

 322 3 identification.)

 322 4 QUESTIONS BY MR. OVERHOLTZ:

 322 5 Q. Let's see what Mr. Kieper said

 322 6 while he was down in Mexico. Can we pull up

 322 7 what we'll mark as Exhibit 43, which is

 322 8 BK-460.

 322 9 Okay. So if you see -- if we

 322 10 can pull up that e-mail from Andy Haapapuro

 322 11 at Etymotic, he was the guy at Etymotic that

 322 12 had written that technical report about the

 322 13 calibration being necessary.

 322 14 You see Ron Kieper, on

 322 15 November 19, 2004, receives an e-mail from

 322 16 Mr. Haapapuro. It says, "Greetings."

 322 17 Do you see that?

 322 18 A. Yes.

 322 19 Q. And then he says, "Ron," and he

 322 20 tells him he hopes he has safe travels.

 322 21 Do you see that?

Re: [320:11-323:2]

Def Objection - 3M MIL No. 

26

Re: [321:13-321:18]

Def Objection - Foundation 

(602)

Re: [322:2-323:2]

Def Objection - Foundation 

(602)

Re: [320:11-

323:2]

Def Objection -

3M MIL No. 26

Overruled

Re: [321:13-

321:18]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 83 of 151
Klun, Robert 6-24-2020 83

 322 22 A. Yes.

 322 23 Q. Okay. So then if we can look,

 322 24 Ron -- he's responding to an e-mail from

 322 25 Kieper, who's sending an e-mail on

 323 1 November 19th, and he starts on the next

 323 2 page.

323:9 - 323:20 Klun, Robert 6-24-2020

 323 9 So you see where it says

 323 10 "Andy"?

 323 11 A. Yes.

 323 12 Q. And Mr. Kieper says, "Due to

 323 13 problems in San Luis, Mexico, I'm flying down

 323 14 there on Monday a.m. and returning Tuesday

 323 15 p.m."

 323 16 Do you see that?

 323 17 A. Yes.

 323 18 Q. So that's less than a two-day

 323 19 trip to figure out all those problems down

 323 20 there, right?

Re: [323:9-328:3]

Def Objection - 3M MIL No. 

26

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [323:18-323:23]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602)

Re: [323:9-

328:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Re: [323:18-

323:23]

Def Objection -

Argumentative; 

Vague (611, 

403); Foundation 

(602)

Sustained

323:22 - 324:12 Klun, Robert 6-24-2020

 323 22 THE WITNESS: That's what the

 323 23 document says.

 323 24 QUESTIONS BY MR. OVERHOLTZ:

 323 25 Q. And he says, "I will verify

 324 1 they are setting measurements up correctly

 324 2 and try to determine why their recent

 324 3 measurements have been .1 to .5 higher than

 324 4 the upper end of the spec for the Combat Arms

 324 5 plugs. Reject rates this week have been from

 324 6 70 to 90 percent, depending on the unit."

 324 7 Did I read that right?

 324 8 A. That's what the document says.

 324 9 Q. So you're operating under

 324 10 waivers by making the spec -- moving the

Re: [323:9-328:3]

Def Objection - 3M MIL No. 

26

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [323:18-323:23]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602)

Re: [324:9-324:17]

Def Objection - Foundation 

(602); Argumentative; 

Misstates (611, 403)

Re: [323:9-

328:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Re: [323:18-

323:23]

Def Objection -

Argumentative; 

Vague (611, 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 84 of 151
Klun, Robert 6-24-2020 84

 324 11 goalpost for these plugs, and 90 percent are

 324 12 testing out of the original spec.

403); Foundation 

(602)

Sustained

Re: [324:9-

324:17]

Def Objection -

Foundation 

(602); 

Argumentative; 

Misstates (611, 

403)

Sustained

324:14 - 325:21 Klun, Robert 6-24-2020

 324 14 QUESTIONS BY MR. OVERHOLTZ:

 324 15 Q. Right?

 324 16 A. I don't know nor recall this

 324 17 document.

 324 18 Q. Okay. He says, "The most

 324 19 baffling problem they have described, one

 324 20 which I am really worried about, is that the

 324 21 output of the Z boxes tends to drift upward

 324 22 over a fairly short time period."

 324 23 Right?

 324 24 A. That's what the document says.

 324 25 Q. He says, "So anyway, that's my

 325 1 situation," in the next paragraph.

 325 2 He says, "When I return, if you

 325 3 reply positively, I will send Z Box Number 2

 325 4 to you for repair."

 325 5 Right?

 325 6 A. Yes.

 325 7 Q. He says, "Whatever happens,

 325 8 I'll probably have some interesting stories

 325 9 to tell you on my return."

 325 10 A. Yes.

 325 11 Q. Okay. So let's find out what

 325 12 happened when Kieper and Zielinski got back

 325 13 from Mexico.

 325 14 We can go to slide 115, Zach.

Re: [323:9-328:3]

Def Objection - 3M MIL No. 

26

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [324:9-324:17]

Def Objection - Foundation 

(602); Argumentative; 

Misstates (611, 403)

Re: [325:20-325:24]

Def Objection - Foundation 

(602)

Re: [323:9-

328:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Re: [324:9-

324:17]

Def Objection -

Foundation 

(602); 

Argumentative; 

Misstates (611, 

403)

Sustained

Re: [325:20-

325:24]

Def Objection -

Foundation (602)

Sustained

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 85 of 151
Klun, Robert 6-24-2020 85

 325 15 The map slide.

 325 16 All right. So if you can look

 325 17 with me here, we see San Luis Potos�, Mexico,

 325 18 down at the bottom left of the screen, right?

 325 19 A. Yes.

 325 20 Q. And then Mr. Kieper flew all

 325 21 the way back to Indianapolis, right?

325:23 - 326:6 Klun, Robert 6-24-2020

 325 23 THE WITNESS: According to the

 325 24 document, that's what it says he did.

 325 25 

 326 1 QUESTIONS BY MR. OVERHOLTZ:

 326 2 Q. All right. And even though he

 326 3 went down there believing that maybe they

 326 4 just had a problem in Mexico with their test

 326 5 machines, he made an interesting finding.

 326 6 Do you remember that?

Re: [323:9-328:3]

Def Objection - 3M MIL No. 

26

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [325:20-325:24]

Def Objection - Foundation 

(602)

Re: [326:2-326:9]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [323:9-

328:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Re: [325:20-

325:24]

Def Objection -

Foundation (602)

Sustained

Re: [326:2-

326:9]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Sustained

326:8 - 326:15 Klun, Robert 6-24-2020

 326 8 THE WITNESS: I do not know nor

 326 9 recall.

 326 10 QUESTIONS BY MR. OVERHOLTZ:

 326 11 Q. You don't remember him telling

 326 12 either you or Berger or Dick Knauer that

 326 13 almost half of the plugs that he tested

 326 14 failed the testing in Mexico and also failed

 326 15 the testing in Indianapolis?

Re: [323:9-328:3]

Def Objection - 3M MIL No. 

26

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [326:2-326:9]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [323:9-

328:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 86 of 151
Klun, Robert 6-24-2020 86

Re: [326:11-326:18]

Def Objection - Hearsay (801, 

802); Vague (611, 403); 

Foundation (602)

Re: [326:2-

326:9]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Sustained

Re: [326:11-

326:18]

Def Objection -

Hearsay (801, 

802); Vague 

(611, 403); 

Foundation (602)

Overruled

326:17 - 326:24 Klun, Robert 6-24-2020

 326 17 THE WITNESS: I do not know nor

 326 18 recall.

 326 19 QUESTIONS BY MR. OVERHOLTZ:

 326 20 Q. I mean, if half the plugs are

 326 21 failing in the machines in Mexico and

 326 22 Indianapolis, that doesn't sound like a

 326 23 Mexican testing problem; that sounds like an

 326 24 earplug problem, doesn't it?

Re: [323:9-328:3]

Def Objection - 3M MIL No. 

26

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [326:11-326:18]

Def Objection - Hearsay (801, 

802); Vague (611, 403); 

Foundation (602)

Re: [326:20-327:2]

Def Objection - Argumentative; 

Vague (611, 403) Foundation 

(602); 702

Re: [323:9-

328:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Re: [326:11-

326:18]

Def Objection -

Hearsay (801, 

802); Vague 

(611, 403); 

Foundation (602)

Overruled

Re: [326:20-

327:2]

Def Objection -

Argumentative; 

Vague (611, 403) 

Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 87 of 151
Klun, Robert 6-24-2020 87

(602); 702

Overruled

327:1 - 328:3 Klun, Robert 6-24-2020

 327 1 THE WITNESS: Again, I do not

 327 2 know nor recall this.

 327 3 QUESTIONS BY MR. OVERHOLTZ:

 327 4 Q. Being Dick Knauer and Kieper's

 327 5 boss, you didn't find out about any of this?

 327 6 A. I don't recall.

 327 7 Q. You're the one -- you're the

 327 8 one that e-mailed around the plan to get

 327 9 things fixed, right?

 327 10 A. I didn't e-mail the plan. I

 327 11 called a meeting.

 327 12 Q. And you attached -- you --

 327 13 A. What we wanted to have occur.

 327 14 You saw -- you have the document.

 327 15 (Klun Exhibit 44 marked for

 327 16 identification.)

 327 17 QUESTIONS BY MR. OVERHOLTZ:

 327 18 Q. Right.

 327 19 So let's see what Mr. Kieper

 327 20 wrote when he got back.

 327 21 And we'll mark -- this is the

 327 22 slide next slide, Zach, and it's RK-407, and

 327 23 this will be Exhibit 44.

 327 24 A. Am I copied on that?

 327 25 Q. Well, I'm about to tell you.

 328 1 A. Okay.

 328 2 Q. All right. So if we look at

 328 3 this e-mail --

Re: [323:9-328:3]

Def Objection - 3M MIL No. 

26

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [326:20-327:2]

Def Objection - Argumentative; 

Vague (611, 403) Foundation 

(602); 702

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [323:9-

328:3]

Def Objection -

3M MIL No. 26

Overruled

Re: [326:20-

327:2]

Def Objection -

Argumentative; 

Vague (611, 403) 

Foundation 

(602); 702

Overruled

Re: [327:3-

336:22]

Def Objection -

3M MIL No. 26

Overruled

328:9 - 328:16 Klun, Robert 6-24-2020

 328 9 Q. So you see Mr. Kieper e-mails

 328 10 on November 30 of 2004, and he copies Dick

 328 11 Knauer in your department, copies Bob

 328 12 Zielinski, copies Elliott Berger and a Selina

 328 13 Ramirez regarding the Combat Arms comparative

 328 14 measures.

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Re: [327:3-

336:22]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 88 of 151
Klun, Robert 6-24-2020 88

 328 15 Do you see that?

 328 16 A. Yes.

3M MIL No. 26

Overruled

329:20 - 330:4 Klun, Robert 6-24-2020

 329 20 Q. It says, "As you can see from

 329 21 the spreadsheet, one plug from equipment

 329 22 number 3 and five plugs from equipment

 329 23 number 4 which measured out of spec, measured

 329 24 in spec on my equipment."

 329 25 Do you see that?

 330 1 A. Yes.

 330 2 Q. So that doesn't tell the whole

 330 3 story, right, about how many measured out of

 330 4 spec in Mexico and Indianapolis, right?

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [330:2-330:7]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602)

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Overruled

Re: [330:2-

330:7]

Def Objection -

Argumentative; 

Vague (611, 

403); Foundation

330:6 - 332:7 Klun, Robert 6-24-2020

 330 6 THE WITNESS: That, I don't

 330 7 know nor recall.

 330 8 (Klun Exhibit 45 marked for

 330 9 identification.)

 330 10 QUESTIONS BY MR. OVERHOLTZ:

 330 11 Q. All right. Well, let's look at

 330 12 the attached spreadsheet, which we'll mark as

 330 13 Exhibit 45.

 330 14 It's the next slide, Zach, 117.

 330 15 This is RK-408, which is the

 330 16 spreadsheet that Mr. Kieper sent.

 330 17 Let me know when you have it on

 330 18 the screen.

 330 19 A. I see it.

 330 20 Q. Okay. And this says at the

 330 21 top, "TJR measurements made 16 to 21

 330 22 November '04, and E-A-RCAL measurements made

 330 23 30 November '04."

 330 24 Right?

 330 25 A. Yes, I see that.

 331 1 Q. And on the left it gives a good

 331 2 range, right?

 331 3 A. Yes.

 331 4 Q. Okay. And then it lists the

Re: [323:9-330:7]

Def Objection - Foundation 

(602)

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [330:2-330:7]

Def Objection - Argumentative; 

Vague (611, 403); Foundation 

(602)

Re: [330:11-336:20]

Def Objection - Foundation 

(602)

Re: [323:9-

330:7]

Def Objection -

Foundation (602)

Overruled

Re: [330:2-

330:7]

Def Objection -

Argumentative; 

Vague (611, 

403); Foundation 

(602)

Overruled

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 89 of 151
Klun, Robert 6-24-2020 89

 331 5 equipment number for TJR, 3 and 4, right?

 331 6 There's 11 number 3s and 20 number 4s. I

 331 7 counted them. You can trust me.

 331 8 A. Yes.

 331 9 Q. Okay. And then if you look, he

 331 10 then provides two columns, which is the value

 331 11 at TJR and the value at E-A-RCAL in

 331 12 Indianapolis, right?

 331 13 A. Yeah, that's what the document

 331 14 shows.

 331 15 Q. And then he wrote, and this is

 331 16 his highlighting, "shaded equals out of

 331 17 spec."

 331 18 Do you see that?

 331 19 A. Yes.

 331 20 Q. So I've done the counting for

 331 21 us, and if we can go to the next slide, Zach,

 331 22 I've put it out to the right so we can follow

 331 23 along with each other.

 331 24 Do you see that?

 331 25 A. Yeah, I see what you have on

 332 1 your slide.

 332 2 Q. Okay. So for the ARC Box

 332 3 Number 3, 10 out of 11 were out of spec in

 332 4 Mexico, right?

 332 5 A. Yes.

 332 6 Q. And 9 out of 11 were out of

 332 7 spec in Indianapolis.

332:9 - 333:5 Klun, Robert 6-24-2020

 332 9 QUESTIONS BY MR. OVERHOLTZ:

 332 10 Q. That's what the -- if you count

 332 11 them, that's what it says for the number 3,

 332 12 right?

 332 13 A. That's what the document says.

 332 14 Q. And you agree that I counted

 332 15 them right, right? 9 out of 11 were out of

 332 16 spec in Indianapolis?

 332 17 A. I'll assume you counted them

 332 18 right.

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [330:11-336:20]

Def Objection - Foundation 

(602)

Re: [333:2-333:8]

Def Objection - Foundation 

(602); 702

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Re: [333:2-

333:8]

Def Objection -

Foundation 

(602); 702

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 90 of 151
Klun, Robert 6-24-2020 90

 332 19 Q. Okay. And then if we look down

 332 20 at the results for Box Number 4 at TJR, 11

 332 21 out of the 20 were out of spec in Mexico.

 332 22 Do you see that?

 332 23 A. Yeah. Yes.

 332 24 Q. And then 6 out of 20 were out

 332 25 of spec in Indianapolis, right?

 333 1 A. Yes.

 333 2 Q. So if we total those up, 21 of

 333 3 31 plugs that Kieper tested when he got back

 333 4 that had been out of spec in Mexico were

 333 5 reported in his spreadsheet, right?

333:7 - 334:19 Klun, Robert 6-24-2020

 333 7 THE WITNESS: This was what --

 333 8 this was what the document shows.

 333 9 QUESTIONS BY MR. OVERHOLTZ:

 333 10 Q. Right.

 333 11 Mr. Kieper reported in this

 333 12 spreadsheet that 21 out of 31 plugs had been

 333 13 out of spec in Mexico that were tested on the

 333 14 number 3 and number 4 machines, correct?

 333 15 A. Which is your doc -- is this

 333 16 all his document or your -- you put some

 333 17 document --

 333 18 Q. His spreadsheet is on the left,

 333 19 and my counting is on the right where it says

 333 20 "total results."

 333 21 A. Total results. The three on

 333 22 the right of the screen are your comments?

 333 23 Q. They are.

 333 24 And I'm asking you: Did I

 333 25 count it right, 21 out of 31 were out of spec

 334 1 in Mexico?

 334 2 A. I'll assume you've counted

 334 3 right.

 334 4 Q. Okay.

 334 5 A. This is not Kieper's document.

 334 6 That's your -- Kieper's document's to the

 334 7 left and you're to the right, correct?

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [330:11-336:20]

Def Objection - Foundation 

(602)

Re: [333:2-333:8]

Def Objection - Foundation 

(602); 702

Re: [334:15-334:22]

Def Objection - 702; 

Foundation (602)

Overruled

Re: [327:3-

336:22]

Def Objection -

3M MIL No. 26

Overruled

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Re: [333:2-

333:8]

Def Objection -

Foundation 

(602); 702

Overruled

Re: [334:15-

334:22]

Def Objection -

702; Foundation 

(602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 91 of 151
Klun, Robert 6-24-2020 91

 334 8 Q. That's correct.

 334 9 A. Okay.

 334 10 Q. And I'm just trying to count

 334 11 how many were out of spec when Kieper did his

 334 12 analysis.

 334 13 Okay? You follow me?

 334 14 A. I follow you.

 334 15 Q. Okay. So then if we count them

 334 16 up on that column for the ones tested in

 334 17 Indianapolis, 15 out of 31 plugs that Kieper

 334 18 tested when he got back from Mexico were also

 334 19 out of spec at Indianapolis, right?

334:21 - 335:9 Klun, Robert 6-24-2020

 334 21 THE WITNESS: By what Kieper's

 334 22 document says.

 334 23 QUESTIONS BY MR. OVERHOLTZ:

 334 24 Q. Kieper's reporting in this

 334 25 spreadsheet, if you count the ones that are

 335 1 shaded, that 15 out of 31, 48 percent, are

 335 2 out of spec in Indianapolis.

 335 3 A. I assume you counted right

 335 4 then.

 335 5 Q. I mean, does that sound like

 335 6 that this was a testing problem with the

 335 7 machines in Mexico and those plugs you were

 335 8 selling by waiver were okay, or does this

 335 9 sound like that there was an earplug problem?

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [330:11-336:20]

Def Objection - Foundation 

(602)

Re: [334:15-334:22]

Def Objection - 702; 

Foundation (602)

Re: [335:5-335:14]

Def Objection - Foundation 

(602); 702; Argumentative 

(611, 403)

Re: [327:3-

336:22]

Def Objection -

3M MIL No. 26

Overruled

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Re: [334:15-

334:22]

Def Objection -

702; Foundation 

(602)

Overruled

Re: [335:5-

335:14]

Def Objection -

Foundation 

(602); 702; 

Argumentative 

(611, 403)

Overruled

335:11 - 335:19 Klun, Robert 6-24-2020

 335 11 THE WITNESS: I'm not a subject

 335 12 matter expert, so I would not know or

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [327:3-

336:22]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 92 of 151
Klun, Robert 6-24-2020 92

 335 13 recall -- nor do I recall this

 335 14 document.

 335 15 QUESTIONS BY MR. OVERHOLTZ:

 335 16 Q. It doesn't take a rocket

 335 17 scientist to know that when half your plugs

 335 18 are failing all of the quality testing, that

 335 19 that's not a good thing, right?

Re: [330:11-336:20]

Def Objection - Foundation 

(602)

Re: [335:5-335:14]

Def Objection - Foundation 

(602); 702; Argumentative 

(611, 403)

Re: [335:16-335:23]

Def Objection - Argumentative 

(611, 403); Foundation (602); 

702

3M MIL No. 26

Overruled

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Re: [335:5-

335:14]

Def Objection -

Foundation 

(602); 702; 

Argumentative 

(611, 403)

Overruled

Re: [335:16-

335:23]

Def Objection -

Argumentative 

(611, 403); 

Foundation 

(602); 702

Sustained

335:22 - 336:10 Klun, Robert 6-24-2020

 335 22 THE WITNESS: All the quality

 335 23 testing?

 335 24 QUESTIONS BY MR. OVERHOLTZ:

 335 25 Q. Well, this is the quality --

 336 1 this is the only quality testing they were

 336 2 doing down in Mexico, right?

 336 3 A. That, I do not know nor recall.

 336 4 Q. So when they tested these --

 336 5 when half -- almost half the plugs, when they

 336 6 test the yellow end on the ARC machine, are

 336 7 out of spec, whether you test them in Mexico

 336 8 or Indianapolis, that's not a good thing if

 336 9 you're selling them to the United States

 336 10 military, right?

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [330:11-336:20]

Def Objection - Foundation 

(602)

Re: [335:16-335:23]

Def Objection - Argumentative 

(611, 403); Foundation (602); 

702

Re: [336:4-336:14]

Def Objection - Foundation 

(602); 702; Vague (611, 403)

Re: [327:3-

336:22]

Def Objection -

3M MIL No. 26

Overruled

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Re: [335:16-

335:23]

Def Objection -

Argumentative 

(611, 403); 

Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 93 of 151
Klun, Robert 6-24-2020 93

(602); 702

Sustained

Re: [336:4-

336:14]

Def Objection -

Foundation 

(602); 702; 

Vague (611, 403)

Overruled

336:12 - 336:22 Klun, Robert 6-24-2020

 336 12 THE WITNESS: I do not know nor

 336 13 recall the document. Not being a

 336 14 subject matter expert --

 336 15 QUESTIONS BY MR. OVERHOLTZ:

 336 16 Q. All right. I've got one more

 336 17 document --

 336 18 A. -- to interpret the data, not

 336 19 being a subject matter expert to interpret

 336 20 the data, I don't know.

 336 21 (Klun Exhibit 46 marked for

 336 22 identification.)

Re: [327:3-336:22]

Def Objection - 3M MIL No. 

26

Re: [330:11-336:20]

Def Objection - Foundation 

(602)

Re: [336:4-336:14]

Def Objection - Foundation 

(602); 702; Vague (611, 403)

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Re: [327:3-

336:22]

Def Objection -

3M MIL No. 26

Overruled

Re: [330:11-

336:20]

Def Objection -

Foundation (602)

Overruled

Sustained

Re: [336:4-

336:14]

Def Objection -

Foundation 

(602); 702; 

Vague (611, 403)

Overruled

337:2 - 337:3 Klun, Robert 6-24-2020

 337 2 Do you know if you ever got

 337 3 this problem fixed?

Re: [337:2-337:5]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [337:2-337:5]

Def Objection - 3M MIL No. 

26; Vague (611, 403); 

Foundation (602)

Re: [337:2-

337:5]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 94 of 151
Klun, Robert 6-24-2020 94

Re: [337:2-

337:5]

Def Objection -

3M MIL No. 26; 

Vague (611, 

403); Foundation 

(602)

Overruled

337:5 - 337:9 Klun, Robert 6-24-2020

 337 5 THE WITNESS: I do not recall.

 337 6 QUESTIONS BY MR. OVERHOLTZ:

 337 7 Q. All right. Let's look at

 337 8 slide 138, Zach. This is -- we'll mark this

 337 9 as Exhibit 46, which is RZ-5051.

Re: [337:2-337:5]

Def Objection - Vague (611, 

403); Foundation (602)

Re: [337:2-337:5]

Def Objection - 3M MIL No. 

26; Vague (611, 403); 

Foundation (602)

Re: [337:2-

337:5]

Def Objection -

Vague (611, 

403); Foundation 

(602)

Overruled

Re: [337:2-

337:5]

Def Objection -

3M MIL No. 26; 

Vague (611, 

403); Foundation 

(602)

Overruled

337:14 - 337:18 Klun, Robert 6-24-2020

 337 14 QUESTIONS BY MR. OVERHOLTZ:

 337 15 Q. And I want to direct your

 337 16 attention to the e-mail that's about

 337 17 three-quarters down the page of the e-mail

 337 18 string. It's --

340:7 - 340:15 Klun, Robert 6-24-2020

 340 7 QUESTIONS BY MR. OVERHOLTZ:

 340 8 Q. Do you think the sergeants that

 340 9 were training soldiers and giving them these

 340 10 earplugs to use on the firing range would

 340 11 have liked to have known that the plugs that

 340 12 the military had been buying from Aearo for

 340 13 years and years, that Aearo had no way of

 340 14 confirming the quality control testing on

 340 15 those earplugs?

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [340:8-340:19]

Def Objection - Foundation 

(602); 701; 702; 

Argumentative; Vague (611, 

403)

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [340:8-

340:19]

Def Objection -

Foundation 

(602); 701; 702; 

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 95 of 151
Klun, Robert 6-24-2020 95

Argumentative; 

Vague (611, 403)

Sustained

340:17 - 340:24 Klun, Robert 6-24-2020

 340 17 THE WITNESS: I don't know nor

 340 18 recall. Not the subject matter expert

 340 19 on these plugs.

 340 20 QUESTIONS BY MR. OVERHOLTZ:

 340 21 Q. You think maybe someone in

 340 22 marketing over at Aearo or 3M would have been

 340 23 the one to make that call whether the

 340 24 military deserved to know?

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [340:8-340:19]

Def Objection - Foundation 

(602); 701; 702; 

Argumentative; Vague (611, 

403)

Re: [340:21-341:2]

Def Objection - Argumentative 

(611, 403); Foundation (602); 

701

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [340:8-

340:19]

Def Objection -

Foundation 

(602); 701; 702; 

Argumentative; 

Vague (611, 403)

Sustained

Re: [340:21-

341:2]

Def Objection -

Argumentative 

(611, 403); 

Foundation 

(602); 701

Sustained

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

341:1 - 341:15 Klun, Robert 6-24-2020

 341 1 THE WITNESS: You're asking my

 341 2 opinion?

 341 3 QUESTIONS BY MR. OVERHOLTZ:

 341 4 Q. Sure.

 341 5 A. I do not have an opinion on

 341 6 this issue without knowing or recalling the

 341 7 information.

 341 8 Q. You think anyone at Aearo or 3M

 341 9 would have an opinion on whether or not the

 341 10 military deserves to know if the quality

 341 11 control testing that's supposed to be done on

 341 12 the yellow end of the plug to prove that the

 341 13 filter would work and protect a soldier, that

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [340:21-341:2]

Def Objection - Argumentative 

(611, 403); Foundation (602); 

701

Re: [341:8-341:19]

Def Objection - Foundation 

(602); 701; 702; 

Argumentative; Vague (611, 

403)

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [340:21-

341:2]

Def Objection -

Argumentative 

(611, 403); 

Foundation 

(602); 701

Sustained

Re: [341:8-

341:19]

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 96 of 151
Klun, Robert 6-24-2020 96

 341 14 the quality machines were never calibrated

 341 15 right and always broken?

Def Objection -

Foundation 

(602); 701; 702; 

Argumentative; 

Vague (611, 403)

Overruled

341:17 - 342:8 Klun, Robert 6-24-2020

 341 17 THE WITNESS: I don't know nor

 341 18 recall anything that resembled your

 341 19 statement.

 341 20 QUESTIONS BY MR. OVERHOLTZ:

 341 21 Q. If there was a problem with the

 341 22 ability to verify the quality of the assembly

 341 23 of those plugs that would affect whether or

 341 24 not that filter would provide sound

 341 25 attenuation for soldiers, do you believe that

 342 1 your company, Aearo or 3M, had a duty to tell

 342 2 the United States military, we can't verify

 342 3 the quality of those filters in those plugs?

 342 4 A. Not being a subject matter

 342 5 expert nor knowing the significance of the

 342 6 data, I can't answer that question.

 342 7 Q. So instead, you just sell them

 342 8 as-is, right?

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [341:8-341:19]

Def Objection - Foundation 

(602); 701; 702; 

Argumentative; Vague (611, 

403)

Re: [342:7-342:12]

Def Objection - Foundation 

(602); 701; 702; Vague; 

Argumentative (611, 403)

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [341:8-

341:19]

Def Objection -

Foundation 

(602); 701; 702; 

Argumentative; 

Vague (611, 403)

Overruled

Re: [342:7-

342:12]

Def Objection -

Foundation 

(602); 701; 702; 

Vague; 

Argumentative 

(611, 403)

Overruled

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

342:10 - 342:18 Klun, Robert 6-24-2020

 342 10 THE WITNESS: Subject matter

 342 11 experts will know whether or not we've

 342 12 got a good product.

 342 13 QUESTIONS BY MR. OVERHOLTZ:

 342 14 Q. And if they knew it wasn't able

 342 15 to be confirmed because the calibration of

 342 16 the machines couldn't be verified, would you

 342 17 have expected them to raise their hand and

 342 18 say, "We have a problem"?

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [342:7-342:12]

Def Objection - Foundation 

(602); 701; 702; Vague; 

Argumentative (611, 403)

Re: [342:14-342:22]

Def Objection - Foundation 

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [342:7-

342:12]

Def Objection -

Foundation 

(602); 701; 702; 

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 97 of 151
Klun, Robert 6-24-2020 97

(602); 701; 702; Vague; 

Argumentative (611, 403)

Vague; 

Argumentative 

(611, 403)

Overruled

Re: [342:14-

342:22]

Def Objection -

Foundation 

(602); 701; 702; 

Vague; 

Argumentative 

(611, 403)

Overruled

342:20 - 343:18 Klun, Robert 6-24-2020

 342 20 THE WITNESS: I don't recall.

 342 21 If there was a problem, they would

 342 22 have contacted me.

 342 23 QUESTIONS BY MR. OVERHOLTZ:

 342 24 Q. That's what they're supposed to

 342 25 do, right?

 343 1 A. If there was a problem.

 343 2 Q. That memo that you sent

 343 3 regarding the TJR quality issues before

 343 4 Zielinski and Kieper went down to Mexico,

 343 5 that memo, did you circulate that outside of

 343 6 Aearo to the US military so they would know

 343 7 what was going on?

 343 8 A. I don't know or recall.

 343 9 Q. So it's kind of just like the

 343 10 flange report, right? You have no way --

 343 11 A. What -- what flange? Excuse

 343 12 me, I missed your -- what did you say? What

 343 13 kind of report?

 343 14 Q. I said it's just like the

 343 15 flange report, the one that Kieper wrote

 343 16 about having to stop the 015 test after eight

 343 17 subjects because the plug was pulling out of

 343 18 people's ears.

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [342:14-342:22]

Def Objection - Foundation 

(602); 701; 702; Vague; 

Argumentative (611, 403)

Re: [343:14-343:22]

Def Objection - Foundation 

(602); Argumentative (611, 

403)

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [342:14-

342:22]

Def Objection -

Foundation 

(602); 701; 702; 

Vague; 

Argumentative 

(611, 403)

Overruled

Re: [343:14-

343:22]

Def Objection -

Foundation 

(602); 

Argumentative 

(611, 403)

Sustained

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 98 of 151
Klun, Robert 6-24-2020 98

343:20 - 344:6 Klun, Robert 6-24-2020

 343 20 THE WITNESS: I'm not a subject

 343 21 matter expert nor recall the

 343 22 documents.

 343 23 QUESTIONS BY MR. OVERHOLTZ:

 343 24 Q. And so just like Aearo can't

 343 25 show that they ever shared that information

 344 1 from the flange report to the US military,

 344 2 you, as you sit here today, can't tell me or

 344 3 show me in any way that you ever shared the

 344 4 information in that TJR quality memo with

 344 5 anyone in the United States military; is that

 344 6 right?

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [343:14-343:22]

Def Objection - Foundation 

(602); Argumentative (611, 

403)

Re: [343:24-344:9]

Def Objection - Foundation 

(602); Argumentative (611, 

403); 701

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [343:14-

343:22]

Def Objection -

Foundation 

(602); 

Argumentative 

(611, 403)

Sustained

Re: [343:24-

344:9]

Def Objection -

Foundation 

(602); 

Argumentative 

(611, 403); 701

Sustained

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

344:8 - 344:17 Klun, Robert 6-24-2020

 344 8 THE WITNESS: I don't know or

 344 9 recall.

 344 10 QUESTIONS BY MR. OVERHOLTZ:

 344 11 Q. And so you have no way of

 344 12 showing me any documentary evidence or any

 344 13 evidence that the information regarding the

 344 14 TJR quality issues with the ARC calibration

 344 15 machines was ever shared with the US

 344 16 military, right?

 344 17 A. I don't know or recall.

Re: [340:7-344:17]

Def Objection - 3M MIL No. 

26

Re: [343:24-344:9]

Def Objection - Foundation 

(602); Argumentative (611, 

403); 701

Re: [340:7-

344:17]

Def Objection -

3M MIL No. 26

Overruled

Re: [343:24-

344:9]

Def Objection -

Foundation 

(602);

Argumentative 

(611, 403); 701

Sustained

Re: [340:7-344:17]

Baker MIL 1

Prior ruling 

stands.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 99 of 151
Ohama, Dan 11-17-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 100 of 151
Ohama, Dan 11-17-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

11:20 - 12:6 Ohama, Dan 11-17-2020

 11 20 Q. Dr. Ohama, can you please state

 11 21 your full name for the record.

 11 22 A. My name is Dan Otoshi (phonetic)

 11 23 Ohama.

 12 1 Q. Dr. Ohama, my name Shelly Hutson.

 12 2 I am with the law firm of Clark, Love &

 12 3 Hutson here in Houston, Texas, where it's

 12 4 the afternoon. I believe you're taking this

 12 5 deposition in Hawaii; is that correct?

 12 6 A. Yes.

Re: [11:20-12:6]

General Objection to the entire 

transcript. This transcript is 

subject to Defendants' pending 

motion to strike and/or any 

other forthcoming motion 

practice to strike testimony.

OVERRULED

12:15 - 12:18 Ohama, Dan 11-17-2020

 12 15 It's my understanding that you

 12 16 retired from the military in December of

 12 17 2018, is that right?

 12 18 A. Yes.

Re: [12:15-12:18]

401, 403

OVERRULED

16:20 - 17:1 Ohama, Dan 11-17-2020

 16 20 Q. Lloyd Baker, do you have any

 16 21 memory of that service member or have you

 16 22 ever seen records indicating you provided

 16 23 medical care?

 17 1 A. No, I don't know who that is.

18:7 - 18:11 Ohama, Dan 11-17-2020

 18 7 Q. You have not reviewed any medical

 18 8 records pertaining to their hearing care

 18 9 that was provided in the military?

 18 10 A. No, I don't recall meeting or

 18 11 seeing any of those -- those patients.

Re: [18:7-18:11]

MIL No. 6.

OVERRULED

18:17 - 19:1 Ohama, Dan 11-17-2020

 18 17 Q. Great. Can you, Dr. Ohama, please

 18 18 give me a brief overview of your background

 18 19 and experience in the military.

 18 20 A. I initially enlisted in the Army

 18 21 1984 for a four -- four-year enlistment

 18 22 through 1988 as an infantry man, and then I

 18 23 reentered the Army in 2002 as an audiologist

 19 1 and served until 2018.

Re: [18:17-19:1]

106

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 101 of 151
Ohama, Dan 11-17-2020 3

19:2 - 19:9 Ohama, Dan 11-17-2020

 19 2 Q. When you started or went back to

 19 3 the military in 2002 as an audiologist,

 19 4 where were you based at that time?

 19 5 A. My first assignment was in Korea.

 19 6 Q. And which base was that?

 19 7 A. Youngsan.

 19 8 Q. How long were you there?

 19 9 A. Two years.

19:10 - 20:4 Ohama, Dan 11-17-2020

 19 10 Q. Where did you go after leaving

 19 11 that base in -- in 2004? What was your next

 19 12 base?

 19 13 A. It was Fort Lewis in Washington.

 19 14 Q. And how long were you at Fort

 19 15 Lewis in -- in Washington?

 19 16 A. I was assigned there for four

 19 17 years. But in 2007 September through 2008

 19 18 December, I was deployed to Iraq.

 19 19 Q. Did you leave Iraq in 2008?

 19 20 A. Yes, December 31st, 2008.

 19 21 Q. And where did you go then? Okay.

 19 22 And where did you go then?

 19 23 A. And then I returned back to Fort

 20 1 Lewis for about three months.

 20 2 Q. Where did you go after that three

 20 3 months?

 20 4 A. To Schofield Barracks, Hawaii.

20:16 - 21:17 Ohama, Dan 11-17-2020

 20 16 Q. Did you serve the same dual role

 20 17 as a clinical audiologist and hearing

 20 18 conservation program manager while you were

 20 19 in Fort Lewis?

 20 20 A. Yes.

 20 21 Q. Can you tell me, describe for me

 20 22 what your responsibilities were as both a

 20 23 clinical audiologist and a hearing program

 21 1 manager while you were in Korea and while

 21 2 you were at Fort Lewis.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 102 of 151
Ohama, Dan 11-17-2020 4

 21 3 A. As a clinical audiologist, I would

 21 4 see patients for any type of hearing-related

 21 5 complaints or who had a threshold shift in

 21 6 the hearing that was identified on their

 21 7 annual automated hearing test and make

 21 8 appropriate referrals.

 21 9 Q. And what were your

 21 10 responsibilities as the hearing conservation

 21 11 program manager?

 21 12 A. That was more to manage the annual

 21 13 hearing exams for all the soldiers and those

 21 14 exposed personnel and to provide support

 21 15 related to hearing protection and education,

 21 16 training education for the units at Fort

 21 17 Lewis.

23:11 - 25:3 Ohama, Dan 11-17-2020

 23 11 Q. Okay. You talked earlier and

 23 12 mentioned that you were also, as -- as part

 23 13 of the hearing conservation program manager,

 23 14 that you were asked to educate service

 23 15 members about hearing protection; is that

 23 16 right?

 23 17 A. Well, it was my responsibility if

 23 18 units requested for -- requested us to come

 23 19 out to provide them support, then, of

 23 20 course, we would support the units with

 23 21 whatever they needed.

 23 22 Q. When you were providing education,

 23 23 did you also provide it to other members in

 24 1 the unit such as technicians or other people

 24 2 involved on the hearing conservation side?

 24 3 A. Yes. We would train the -- their

 24 4 -- one of their roles, we train at least two

 24 5 of the medics from each battalion to be a

 24 6 certified hearing conservation technician.

 24 7 Q. And did you have meetings or

 24 8 briefings that included how to train these

 24 9 technicians?

 24 10 A. To train them? No, we didn't have

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 103 of 151
Ohama, Dan 11-17-2020 5

 24 11 meetings on -- to discuss how to train them.

 24 12 We just conducted the -- those -- it was a

 24 13 -- typically, a 40-hour course that the

 24 14 medics would attend.

 24 15 Q. For -- for purposes of explaining

 24 16 how to instruct a service member how to use

 24 17 hearing protection, is that one of the

 24 18 things that you did as well?

 24 19 A. Yes.

 24 20 Q. Where did you get those

 24 21 instructions from so you knew how to best

 24 22 instruct a service member how to wear a

 24 23 hearing protection device?

 25 1 A. All of the education material came

 25 2 from CHPM or Center for Health Promotion

 25 3 Accredit -- Preventative Medicine.

26:17 - 27:6 Ohama, Dan 11-17-2020

 26 17 Q. When you were educating service

 26 18 members about hearing protection, do you

 26 19 impress upon them the importance of using

 26 20 hearing protection?

 26 21 A. Yes.

 26 22 Q. You were in the military a long

 26 23 time. During that extended stay in the

 27 1 military, was it mandatory for sergeant --

 27 2 soldiers to wear hearing protection?

 27 3 A. Yes.

 27 4 Q. Could soldiers get in trouble if

 27 5 they didn't wear hearing protection?

 27 6 A. Yes.

Re: [26:17-27:6]

401, 403

OVERRULED

27:11 - 27:15 Ohama, Dan 11-17-2020

 27 11 Q. Do you have a memory of a type of

 27 12 hearing protection known as the com --

 27 13 Combat Arms earplug version two?

 27 14 A. I am aware of the double-sided

 27 15 Combat Arms earplug, yes.

Re: [27:11-27:15]

106

OVERRULED

27:16 - 27:19 Ohama, Dan 11-17-2020

 27 16 Q. So let's refer it to that way

 27 17 then. We'll call it the double-sided

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 104 of 151
Ohama, Dan 11-17-2020 6

 27 18 earplug. Is that okay with you?

 27 19 A. Yes.

28:16 - 28:19 Ohama, Dan 11-17-2020

 28 16 Q. Okay. And then at Fort Lewis, was

 28 17 the double-ended Combat Arms earplug issued

 28 18 while you were stationed at Fort Lewis?

 28 19 A. Yes.

29:3 - 29:6 Ohama, Dan 11-17-2020

 29 3 Q. And during that time, did you have

 29 4 an opportunity to issue to soldiers the

 29 5 Combat Arms earplug, double-sided earplug?

 29 6 A. Yes.

Re: [29:3-29:6]

106

OVERRULED

29:7 - 29:9 Ohama, Dan 11-17-2020

 29 7 Q. Was the double-sided earplug

 29 8 standard issue for Fort Lewis?

 29 9 A. No.

Re: [29:7-29:9]

improper counter

OVERRULED

29:10 - 29:23 Ohama, Dan 11-17-2020

 29 10 Q. Do you recall what instructions

 29 11 were given with the double-sided earplugs?

 29 12 A. Well, the instructions consisted

 29 13 of how to use the earplugs, which side to

 29 14 use for which types of noise situations,

 29 15 whether it's dismounted weapon start type of

 29 16 noise or steady state noise exposures where

 29 17 noise -- not exposure, but noise situations.

 29 18 Q. Was it your understanding and did

 29 19 you instruct service members that the yellow

 29 20 side was to be used in the ear during

 29 21 tactical modes?

 29 22 A. Yes, for dismounted type of

 29 23 operations.

Re: [29:10-29:23]

106

OVERRULED

30:1 - 30:13 Ohama, Dan 11-17-2020

 30 1 Q. And then the green side of the

 30 2 double-ended earplug, did you instruct

 30 3 service members that that would be used for

 30 4 loud impulses so that they would be blocked

 30 5 out?

 30 6 A. They could. They could use a

 30 7 conditional earplug type of protection, so

Re: [30:1-30:13]

improper counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 105 of 151
Ohama, Dan 11-17-2020 7

 30 8 they could use it in any situation, pretty

 30 9 much, the green side.

 30 10 Q. And the green side worked more of

 30 11 the traditional fashion of earplugs; is that

 30 12 fair to say?

 30 13 A. Yes.

30:14 - 31:11 Ohama, Dan 11-17-2020

 30 14 Q. How would you instruct the service

 30 15 members to -- to insert the double-sided

 30 16 earplug into their ear?

 30 17 A. The main strategy or the main

 30 18 explanation was to reach around the head to

 30 19 hold their earlobe upward and outward so

 30 20 they could wiggle the earplug into their ear

 30 21 canal to get a snug airtight fit.

 30 22 Q. Did you ever instruct soldiers or

 30 23 even other hearing conservation

 31 1 professionals that when you inserted the

 31 2 double-ended plug, they needed to fold the

 31 3 flanges back?

 31 4 A. I don't recall training soldiers

 31 5 to fold -- fold the flap back.

 31 6 Q. To the best of your knowledge,

 31 7 then, Dr. Ohama, you would not have

 31 8 instructed service members or other hearing

 31 9 conservational -- conservation professionals

 31 10 to fold back the flanges? You have no

 31 11 memory of that?

Re: [30:14-31:11]

401, 403, 602

Re: [31:5-31:11]

leading

OVERRULED

31:13 - 31:13 Ohama, Dan 11-17-2020

 31 13 A. No, I don't recall that.

Re: [31:13-31:13]

401, 403, 602; leading

OVERRULED

32:9 - 32:12 Ohama, Dan 11-17-2020

 32 9 Q. So that I am understanding,

 32 10 though, are you saying, Dr. Ohama, that you

 32 11 remember there to be two different two-sided

 32 12 earplugs?

Re: [32:9-32:12]

401; 403; improper counter

SUSTAINED

32:14 - 32:19 Ohama, Dan 11-17-2020

 32 14 Q. I just want to make sure I'm

 32 15 understanding your testimony.

 32 16 A. Yes. So I believe when the -- the

Re: [32:14-32:19]

401; 403; improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 106 of 151
Ohama, Dan 11-17-2020 8

 32 17 ones we had had a space in the middle of the

 32 18 two ends where you could actually see the

 32 19 hole in the inner core.

32:20 - 33:7 Ohama, Dan 11-17-2020

 32 20 Q. I see. If you -- could you give

 32 21 me an estimate, during your extended time in

 32 22 the military, how many soldiers you would

 32 23 have fit with earplugs? Would it be in the

 33 1 thousands?

 33 2 A. During my time in the military?

 33 3 Q. Yes.

 33 4 A. My entire time in the military?

 33 5 Oh, yes.

 33 6 Q. Yes, sir.

 33 7 A. Tens -- tens of thousands.

Re: [32:20-33:7]

106

OVERRULED

33:8 - 34:5 Ohama, Dan 11-17-2020

 33 8 Q. And specific to the times that you

 33 9 would have instructed service members on the

 33 10 dual-ended plug, as you sit here, you don't

 33 11 have a memory of ever telling a service

 33 12 member they needed to fold the flange back

 33 13 when they inserted it; is that fair?

 33 14 A. Well, to clarify, when we provided

 33 15 training for soldiers and fitting, I think

 33 16 there was -- it wasn't a large portion of

 33 17 soldiers who I trained and fit the

 33 18 double-ended Combat Arms earplug. We had

 33 19 all the other different earplugs also.

 33 20 So I think it was just during my

 33 21 time at my beginning time at Fort Lewis

 33 22 where we really were fitting those

 33 23 double-ended Combat Arms earplugs. And so

 34 1 it wasn't very many soldiers that I remember

 34 2 getting the double-ended Combat Arms

 34 3 earplugs. By the time I was deployed in

 34 4 2007, it was already being transitioned to

 34 5 the next version of Combat Arms earplugs.

Re: [33:8-34:5]

nonresponsive; improper 

counter

SUSTAINED

34:20 - 35:8 Ohama, Dan 11-17-2020

 34 20 Q. Okay. Do you see that -- this is

Re: [34:20-35:8]

602, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 107 of 151
Ohama, Dan 11-17-2020 9

 34 21 -- I'm going to mark it as Exhibit Number 1

 34 22 to your deposition. Do you see the very top

 34 23 in the title of this document says, How

 35 1 folding the flanges back affects REAT

 35 2 results of the UltraFit earplug end of the

 35 3 Combat Arms plug? Do you see that?

 35 4 A. Yes.

 35 5 Q. Have you ever seen this document

 35 6 before?

 35 7 A. No, I don't recall seeing this

 35 8 document before.

35:14 - 35:17 Ohama, Dan 11-17-2020

 35 14 Q. In the middle of the page here,

 35 15 you see then name RW Kieper and EH Berger.

 35 16 Do you know Mr. Kieper?

 35 17 A. No.

35:18 - 36:1 Ohama, Dan 11-17-2020

 35 18 Q. Do you know EH or Elliott Berger?

 35 19 A. I know of him and some of his

 35 20 presentations, yes.

 35 21 Q. Have you met him in person, or has

 35 22 it -- has it been mainly academic?

 35 23 A. No, I met him before, yes.

 36 1 Briefly, I've met him.

Re: [35:18-36:1]

401

OVERULED

36:6 - 36:10 Ohama, Dan 11-17-2020

 36 6 Q. And if you look a little further

 36 7 down, it says Aearo Company. Dr. Ohama, are

 36 8 you aware that Aearo ultimately became 3M?

 36 9 Is that something that you know?

 36 10 A. Yes.

Re: [36:6-36:10]

401, 403

OVERRULED

37:2 - 38:11 Ohama, Dan 11-17-2020

 37 2 Q. It goes on to say, Because the

 37 3 stem of the green solid end of the plug is

 37 4 so short, it was dif- -- difficult for the

 37 5 experimenter to insert the plug deeply into

 37 6 some subjects' ear canals, especially the

 37 7 subjects with medium and larger ear canals.

 37 8 Did I read that correctly?

 37 9 A. (No response.)

Re: [37:2-38:11]

improper counter; 

nonresponsive exchange 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 108 of 151
Ohama, Dan 11-17-2020 10

 37 10 Q. Did I read that correctly?

 37 11 A. I'm sorry. Where were you at

 37 12 again?

 37 13 Q. Sure. Second paragraph. I'm

 37 14 going to read the second sentence again that

 37 15 starts with because. Do you see where I am?

 37 16 A. Okay.

 37 17 Q. Okay. Because the stem of the

 37 18 green solid end of the plug is so short --

 37 19 A. Wait, wait.

 37 20 Q. -- it was --

 37 21 A. Wait.

 37 22 Q. No problem.

 37 23 A. Okay. Oh, okay. I think I've got

 38 1 it up here.

 38 2 Q. Okay. I'm going to try this one

 38 3 more time. So --

 38 4 A. Okay. Go ahead.

 38 5 Q. The sentence --

 38 6 A. Yeah, I read it --

 38 7 Q. Sure.

 38 8 A. -- on the screen. I was getting

 38 9 confused looking at the screen.

 38 10 Q. Whatever your preference is is

 38 11 perfectly fine.

38:12 - 39:2 Ohama, Dan 11-17-2020

 38 12 Because the stem of the green

 38 13 solid end of the plug is so short, it was

 38 14 difficult for the experimenter to insert the

 38 15 plug deeply into some subjects' ear canals,

 38 16 especially those subjects with medium and

 38 17 larger ear canals. Did I read that

 38 18 correctly?

 38 19 A. Yes.

 38 20 Q. Dr. Ohama, did you have any

 38 21 knowledge when you were fitting and working

 38 22 with double-ended earplugs that a study like

 38 23 this had been done by Aearo, now 3M, on the

Re: [38:12-39:2]

602, 401, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 109 of 151
Ohama, Dan 11-17-2020 11

 39 1 double-sided Combat Arms earplugs?

 39 2 A. No, I was not aware.

39:18 - 39:20 Ohama, Dan 11-17-2020

 39 18 Based on your experience as a

 39 19 military audiologist, do most soldiers have

 39 20 medium-sized ear canals?

Re: [39:18-39:20]

401, 403, 702, Undisclosed 

expert opinion; leading

OVERRULED

39:22 - 40:16 Ohama, Dan 11-17-2020

 39 22 A. Yes.

 39 23 Q. You can answer.

 40 1 A. Yes, most soldiers tend to have

 40 2 medium-sized or what would be considered in

 40 3 my view medium-sized earplug -- or ear

 40 4 canal.

 40 5 Q. Very well. If we move on to the

 40 6 next sentence in that same paragraph of this

 40 7 report that we refer to as the Flange

 40 8 Report, it says, Additionally, the geometry

 40 9 of the ear canal opening sometimes prevented

 40 10 the deep plug insertion required for maximum

 40 11 attenuation values. Do you see that?

 40 12 A. Yes.

 40 13 Q. Do you agree, Dr. Ohama, that in

 40 14 order for the earplug to work, it needs to

 40 15 fit?

 40 16 A. Yes.

Re: [39:22-40:16]

401, 403, 602, 702 

Undisclosed expert opinion; 

leading

OVERRULED

40:18 - 40:21 Ohama, Dan 11-17-2020

 40 18 Q. Do you agree that in order for an

 40 19 earplug to work, it needs to have proper

 40 20 deep insertion into the ear canal?

 40 21 A. Yes.

Re: [40:18-40:21]

401, 403, 702, 602, 106, 

Undisclosed Expert Opinion

OVERRULED

40:22 - 41:4 Ohama, Dan 11-17-2020

 40 22 Q. Did you ever know during any of

 40 23 your time in the military that when the

 41 1 double -- double-ended earplug was tested in

 41 2 2000, they were having difficulty getting a

 41 3 proper fit because they couldn't get deep

 41 4 insertion of the double-sided plug?

Re: [40:22-41:10]

nonresponsive

SUSTAINED

41:6 - 41:10 Ohama, Dan 11-17-2020

 41 6 A. I don't recall it being specific

Re: [40:22-41:10]

nonresponsive

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 110 of 151
Ohama, Dan 11-17-2020 12

 41 7 to the double-sided earplug. It was with

 41 8 any earplug. If you couldn't get a proper

 41 9 seal and fit, we would change -- switch it

 41 10 out for a different size.

41:11 - 42:15 Ohama, Dan 11-17-2020

 41 11 Q. That's important. So if you had

 41 12 been aware that any of the earplugs that you

 41 13 were fitting to soldiers had problems with

 41 14 insertion, proper fit, you would not use

 41 15 that earplug; is that fair?

 41 16 A. Yes.

 41 17 Q. You would use a different earplug

 41 18 had you known there were problems with the

 41 19 fit of the earplug?

 41 20 A. Yes.

 41 21 Q. If there are problems with the fit

 41 22 of the earplug, that can affect the

 41 23 attenuation values, can't it?

 42 1 A. Yes.

 42 2 Q. If you go to the same paragraph

 42 3 but the very last sentence here, When the

 42 4 inward pressure on the plug was released,

 42 5 the yellow plugs' flanges tended -- tended

 42 6 to return to their original shape and this

 42 7 sometimes loosened the plug, often

 42 8 imperceptibly to the subject. Did I read

 42 9 that correctly?

 42 10 A. Yes.

 42 11 Q. Did you ever know that the

 42 12 double-ended Combat Arms earplug, when it

 42 13 was originally tested by 3M in 2000, that

 42 14 they noted that plug often imperceptibly

 42 15 loosened?

Re: [41:11-42:15]

401, 403, 702, 602, 106, 

Undisclosed expert opinion.

Re: [42:11-42:15]

Argumentative; leading

OVERRULED

42:20 - 42:20 Ohama, Dan 11-17-2020

 42 20 A. No, I was -- I didn't know that.

Re: [42:20-42:20]

401, 403, 702, 602, 106, 

Argumentative; leading

OVERRULED

42:21 - 43:3 Ohama, Dan 11-17-2020

 42 21 Q. If you had been aware that 3M,

 42 22 when they tested the double-sided earplug,

Re: [42:21-43:3]

improper counter

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 111 of 151
Ohama, Dan 11-17-2020 13

 42 23 found that it often imperceptibly loosened,

 43 1 would you used -- have used a different

 43 2 earplug for service members other than the

 43 3 double-sided earplug?

43:5 - 43:11 Ohama, Dan 11-17-2020

 43 5 A. I'm not sure. I mean, it was the

 43 6 same for any other earplug. It didn't -- it

 43 7 doesn't matter what earplug we used. If we

 43 8 weren't able to obtain a proper fit, we

 43 9 would have switched it out for them, changed

 43 10 to a different earplug, different size or

 43 11 different type.

Re: [43:5-43:11]

improper counter

OVERRULED

43:12 - 44:22 Ohama, Dan 11-17-2020

 43 12 Q. I want you to look at the -- the

 43 13 next paragraph which is test 213017. Do you

 43 14 see that paragraph?

 43 15 A. Yes.

 43 16 Q. This is the -- another test that

 43 17 was performed in the same report. And it

 43 18 says, The yellow flanges of the level

 43 19 dependent end of the plug were folded back

 43 20 to green, solid plug being inserted into the

 43 21 subject's ear. Did I read that correctly?

 43 22 A. Yes.

 43 23 Q. The very last sentence of that

 44 1 paragraph -- actually, we'll read the next

 44 2 sentence. The folded back flanges and the

 44 3 hard plastic stem provided a long stem quasi

 44 4 stem for the experimenter to grasp and allow

 44 5 for a deeper and -- and more consistent fit

 44 6 of solid plugs for test 213017. Did I read

 44 7 that correctly?

 44 8 A. Yes.

 44 9 Q. And when fitting an earplug, is

 44 10 one of your goals a -- a deep and consistent

 44 11 fit of the earplug?

 44 12 A. Yes.

 44 13 Q. The last sentence here says, When

 44 14 folded back in that way, the yellow flanges

Re: [43:12-44:22]

401, 403, 702, 602, 106

Re: [44:19-44:22]

leading

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 112 of 151
Ohama, Dan 11-17-2020 14

 44 15 neither fit the subject's concha or -- nor

 44 16 compromised the fit of the solid earplugs.

 44 17 Do you see that?

 44 18 A. Yes.

 44 19 Q. So does it appear from this report

 44 20 dating back to 2000 that in order to get

 44 21 better fit, the people running this test

 44 22 folded flanges back? Do you --

45:1 - 45:6 Ohama, Dan 11-17-2020

 45 1 Q. Did you -- do you see that there?

 45 2 A. Yes.

 45 3 Q. Did you ever know or hear that in

 45 4 order for the double-ended Combat Arms

 45 5 earplugs to have the best fit they could,

 45 6 flanges needed to be folded back?

Re: [45:1-45:6]

401, 403, 702, 602, 106; 

leading

OVERRULED

45:8 - 45:8 Ohama, Dan 11-17-2020

 45 8 A. I don't recall.

Re: [45:8-45:8]

401, 403, 702, 602, 106

OVERRULED

45:22 - 46:3 Ohama, Dan 11-17-2020

 45 22 Q. Certainly, certainly. Is it

 45 23 important when you're choosing which earplug

 46 1 to fit a service member with, are you

 46 2 looking for ear -- an earplug that will

 46 3 provide consistent, nonvariable results?

Re: [45:22-46:3]

401, 403, 702, 106; leading

OVERRULED

46:5 - 46:7 Ohama, Dan 11-17-2020

 46 5 Q. As much as possible?

 46 6 A. To maintain a fit while they're

 46 7 using it, yes.

Re: [46:5-46:7]

401, 403, 602, 702; leading

OVERRULED

46:8 - 46:12 Ohama, Dan 11-17-2020

 46 8 Q. Did you ever know during the

 46 9 timeframes that you were fitting the

 46 10 double-ended Combat Arms earplug that the

 46 11 initial test results for the plug showed

 46 12 variable results?

46:14 - 46:18 Ohama, Dan 11-17-2020

 46 14 A. Not necessarily for the Combat

 46 15 Arms earplug. Again, it was for any

 46 16 earplug. If there was any type of

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 113 of 151
Ohama, Dan 11-17-2020 15

 46 17 difficulty with the fit or seal, we would

 46 18 change to a different earplug size or type.

46:19 - 46:23 Ohama, Dan 11-17-2020

 46 19 Q. If there's vari -- sorry. If

 46 20 there's variability with the fit and the

 46 21 seal, that could ultimately impact the type

 46 22 and amount of protection the earplug allows

 46 23 for; is that fair?

Re: [46:19-46:23]

401, 403, 602, 702, 

Undisclosed Expert opinion

OVERRULED

47:2 - 47:3 Ohama, Dan 11-17-2020

 47 2 A. I would -- yes, I would believe

 47 3 that.

Re: [47:2-47:3]

401, 403, 602, 702, 

Undisclosed expert opinion

OVERRULED

47:18 - 47:21 Ohama, Dan 11-17-2020

 47 18 Q. Were you ever made aware that the

 47 19 initial test done on the double-ended Combat

 47 20 Arms earplug showed that it was too short

 47 21 for proper insertion?

Re: [47:18-47:21]

401, 403, 602, 702, 

argumentative

OVERRULED

47:23 - 47:23 Ohama, Dan 11-17-2020

 47 23 A. No, I was not. I was not aware.

Re: [47:23-47:23]

401, 403, 602, 702, 106, 

argumentative

OVERRULED

48:1 - 48:5 Ohama, Dan 11-17-2020

 48 1 Q. If you had been told that the

 48 2 initial testing for the double-sided Combat

 48 3 Arms earplug showed it was too short for

 48 4 proper insertion, would you have used

 48 5 different plugs?

48:7 - 48:12 Ohama, Dan 11-17-2020

 48 7 A. I would have sought guidance from

 48 8 others. If -- if that was a concern, I

 48 9 would have asked others what this was about.

 48 10 Q. Would you have con -- contacted 3M

 48 11 about concerns that you had with the plug if

 48 12 you had known these things?

48:14 - 48:18 Ohama, Dan 11-17-2020

 48 14 A. Not -- not necessarily 3M. I

 48 15 would contact our Army head program

 48 16 director's office to find out more about

 48 17 issues with the earplug first or CHPM. I

 48 18 would contact CHPM.

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 114 of 151
Ohama, Dan 11-17-2020 16

48:19 - 48:22 Ohama, Dan 11-17-2020

 48 19 Q. You would at least want to get

 48 20 additional information so that you would

 48 21 know whether to fit service members with

 48 22 that plug; is that fair?

Re: [48:19-48:22]

401, 403, 602, 702; leading

OVERRULED

49:1 - 49:1 Ohama, Dan 11-17-2020

 49 1 A. Yes.

Re: [49:1-49:1]

401, 403, 602, 702; leading

OVERRULED

49:9 - 49:14 Ohama, Dan 11-17-2020

 49 9 MS. HUTSON: And I'll mark this as

 49 10 Exhibit Number 2 to the deposition.

 49 11 

 49 12 (Joint Exhibit 2 was marked for

 49 13 identification and is attached to the

 49 14 original transcript.)

Re: [49:9-49:14]

401, 403, 602, 702

OVERRULED

50:3 - 50:16 Ohama, Dan 11-17-2020

 50 3 Q. Very well. So I'm going to read

 50 4 portions of this email to you. It starts

 50 5 off, Here are the data on the UltraFit and

 50 6 the Combat Arms. Note the original study

 50 7 was done with eight subjects. The second

 50 8 study was with the folded back flange on the

 50 9 end sticking out of the ear. Did I read

 50 10 that right?

 50 11 A. Yes.

 50 12 Q. Should I share this with Ohlin.

 50 13 Do you know who Ohlin is?

 50 14 A. Yes.

 50 15 Q. Did you know him personally?

 50 16 A. Yes.

Re: [50:3-50:16]

401, 403, 602, 702

OVERRULED

51:11 - 51:14 Ohama, Dan 11-17-2020

 51 11 Q. Do you agree that it's important

 51 12 with earplugs that appropriate instructions

 51 13 are given to both audiologists who are

 51 14 fitting them as well as service members?

Re: [51:11-51:14]

401, 403, 602, 702, 

Undisclosed expert opinion; 

leading

OVERRULED

51:16 - 51:19 Ohama, Dan 11-17-2020

 51 16 A. Yes.

 51 17 Q. In -- in order to properly

 51 18 instruct service members, do you need full

 51 19 and accurate instructions?

Re: [51:16-51:19]

401, 403, 602, 702, 

Undisclosed expert opinion; 

leading

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 115 of 151
Ohama, Dan 11-17-2020 17

51:21 - 52:4 Ohama, Dan 11-17-2020

 51 21 A. I would need accurate

 51 22 instructions, yes.

 51 23 Q. Do you believe that for service

 52 1 members to properly insert earplugs like the

 52 2 double-sided Combat Arms, they need to be

 52 3 provided with accurate and complete

 52 4 instructions?

Re: [51:21-52:4]

401, 403, 602, 702, 

undisclosed expert opinion; 

leading

OVERRULED

52:6 - 52:6 Ohama, Dan 11-17-2020

 52 6 A. Yes.

Re: [52:6-52:6]

undisclosed expert opinion; 

leading

Re: [52:6-52:12]

401, 403, 602, 702, 

Argumentative; leading

OVERRULED

52:7 - 52:12 Ohama, Dan 11-17-2020

 52 7 Q. In this email, he admits it looks

 52 8 like the existing product has problems

 52 9 unless the user instructions are revised.

 52 10 Is that something that you would

 52 11 have wanted to know prior to fitting service

 52 12 members with the double-ended Combat Arms?

Re: [52:6-52:12]

401, 403, 602, 702, 

Argumentative; leading

OVERRULED

52:14 - 52:14 Ohama, Dan 11-17-2020

 52 14 A. Yes.

Re: [52:14-52:14]

401, 403, 602, 702; leading

OVERRULED

52:18 - 52:19 Ohama, Dan 11-17-2020

 52 18 MS. HUTSON: Let's turn to tab

 52 19 number nine, please, Corey.

53:15 - 53:23 Ohama, Dan 11-17-2020

 53 15 Q. Okay. In the email, you point out

 53 16 that you were concerned that soldiers were

 53 17 not using the CAv2 correctly; is that right?

 53 18 A. Yes.

 53 19 Q. And just to be clear, when -- when

 53 20 it says CAv2 here, that's the same plug as

 53 21 the double-ended Combat Arms we've been

 53 22 referring to; is that right?

 53 23 A. Yes.

54:1 - 54:8 Ohama, Dan 11-17-2020

 54 1 Q. Okay. You state in the -- in the

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 116 of 151
Ohama, Dan 11-17-2020 18

 54 2 first paragraph, I'm trying to contact

 54 3 someone from Peltor because I want to see if

 54 4 there might be a way to improve the Combat

 54 5 Arms earplugs to help soldiers understand

 54 6 how to use them properly. Did I read that

 54 7 correctly?

 54 8 A. Yes.

54:9 - 55:4 Ohama, Dan 11-17-2020

 54 9 Q. This email is dated August 24th of

 54 10 2004, right?

 54 11 A. Yes.

 54 12 Q. And I take it from the wording in

 54 13 your email that -- that you believe soldiers

 54 14 were having trouble using them properly; is

 54 15 that fair?

 54 16 A. Yes. Trouble understanding which

 54 17 side of the double-sided earplug they should

 54 18 be using in different situations.

 54 19 Q. And at that point in time in

 54 20 August of 2004, did any instructions for the

 54 21 use of the double-sided Combat Arms come

 54 22 with the product?

 54 23 A. Not that I recall.

 55 1 Q. Did any instructions come with the

 55 2 double-sided Combat Arms in terms of how to

 55 3 properly insert them?

 55 4 A. Not that I recall.

Re: [54:9-55:4]

401, 403, 602, 702, 106

OVERRULED

55:7 - 55:13 Ohama, Dan 11-17-2020

 55 7 MS. HUTSON: Did I mark this one,

 55 8 guys? I don't know if I did. This is

 55 9 Exhibit 3. I apologize.

 55 10 

 55 11 (Joint Exhibit 3 was marked for

 55 12 identification and is attached to the

 55 13 original transcript.)

55:15 - 56:10 Ohama, Dan 11-17-2020

 55 15 Q. In the second paragraph of Exhibit

 55 16 3, you go on to say, I recently met with the

 55 17 arm -- Army Hearing Observation consult --

Re: [55:15-56:10]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 117 of 151
Ohama, Dan 11-17-2020 19

 55 18 consultant from CHPM Aberdeen Proving

 55 19 Ground. Did I read that right?

 55 20 A. Yes.

 55 21 Q. And you go on to say, We spoke of

 55 22 problems with soldiers not using the Combat

 55 23 Arms earplugs effectively. Either they

 56 1 forget what -- what was explained during

 56 2 initial training with the earplugs, there

 56 3 was a lack of proper training or whatever.

 56 4 It goes on to say, In some

 56 5 instances, Combat Arm earplugs order

 56 6 requisitions were held up or disapproved

 56 7 because of concerns that soldiers were not

 56 8 using them correctly. Did I read that

 56 9 correctly?

 56 10 A. Yes.

57:20 - 58:8 Ohama, Dan 11-17-2020

 57 20 detail. Was that something that was being

 57 21 discussed by hearing conservation managers

 57 22 like yourself? Audiologists? Can you just

 57 23 kind of just give me a bit more detail by

 58 1 what you mean by that?

 58 2 A. It was more among the other Army

 58 3 audiologists and the hearing conservation

 58 4 program managers.

 58 5 Q. Was there concern that the

 58 6 confusions -- that the confusion that the

 58 7 soldiers had might result in their ears and

 58 8 their hearing not being protected correctly?

Re: [57:20-58:8]

improper counter; 106

SUSTAINED

58:10 - 59:12 Ohama, Dan 11-17-2020

 58 10 A. The concern was for them to wear

 58 11 the yellow side in constant noise type

 58 12 situations where they would be

 58 13 underprotected from continuous noise.

 58 14 Q. You, in this email, go on to give

 58 15 a couple different suggestions. And the

 58 16 first one is here in paragraph three. My

 58 17 idea is to print small pictures and words on

 58 18 the earplugs small enough to fit on the

Re: [58:10-59:12]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 118 of 151
Ohama, Dan 11-17-2020 20

 58 19 second and third flange. Did I read that

 58 20 correctly?

 58 21 A. Yes.

 58 22 Q. And you go on to say, For example,

 58 23 on the yellow side, print weapons fire in

 59 1 dismounted mode along with a picture of an

 59 2 M16 machine gun, et cetera, on the olive

 59 3 side, drag side -- olive drag side, excuse

 59 4 me. Print, quote, noisy vehicles, end

 59 5 quote, along with picture of a helicopter,

 59 6 Army personnel carrier, et cetera.

 59 7 Were those ever printed or did you

 59 8 ever see them ever make those types of

 59 9 instructions or hand out those types of

 59 10 instructions with the pictures as you

 59 11 mention or put them on the earplugs

 59 12 themselves?

59:14 - 59:14 Ohama, Dan 11-17-2020

 59 14 Q. Was that ever done?

Re: [59:14-59:14]

improper counter

SUSTAINED

59:16 - 59:18 Ohama, Dan 11-17-2020

 59 16 A. Yes. In the next -- next

 59 17 paragraph there, it explains the cards that

 59 18 were developed.

Re: [59:16-59:18]

improper counter

SUSTAINED

60:7 - 60:17 Ohama, Dan 11-17-2020

 60 7 Q. Let me read that paragraph to you

 60 8 and make sure it's clear in the record. It

 60 9 says, An alternate idea is to create a small

 60 10 laminated card that fits into the earplug

 60 11 case that the Army currently issues. The

 60 12 card will have to be small, approximately

 60 13 1.5, 1.75. On the card will be a picture of

 60 14 the Combat Arms earplug along with the small

 60 15 prints and pictures as described. Did I

 60 16 read that correctly?

 60 17 A. Yes.

61:6 - 61:10 Ohama, Dan 11-17-2020

 61 6 Q. Suffice it to say, though, that

 61 7 when you had concerns, you reached out to

 61 8 the manufacturer of the product to propose

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 119 of 151
Ohama, Dan 11-17-2020 21

 61 9 some ideas to better clarify how to use

 61 10 their product; is that fair?

61:12 - 61:15 Ohama, Dan 11-17-2020

 61 12 A. I believe this was one the only

 61 13 instance -- well, one of the -- I don't

 61 14 recall ever really doing that besides this

 61 15 time.

61:16 - 61:20 Ohama, Dan 11-17-2020

 61 16 Q. Okay. But when you wanted to

 61 17 raise concerns, you did so by going to the

 61 18 manufacturer of the product in hopes of

 61 19 proposing some ideas that they might

 61 20 ultimately accept and use; is that fair?

Re: [61:16-61:20]

106, 401, 403; leading

OVERRULED

61:22 - 61:23 Ohama, Dan 11-17-2020

 61 22 A. In this case, it looks like I did

 61 23 in this case.

Re: [61:22-61:23]

106, 401, 403; leading

OVERRULED

62:13 - 62:18 Ohama, Dan 11-17-2020

 62 13 Q. And the reason it would be the

 62 14 manufacturer and not CHPM is because it

 62 15 involves instructions about their product?

 62 16 A. It would be modifying their

 62 17 product with, yeah, additional prints or

 62 18 something on top of their product.

Re: [62:13-63:4]

602, 702, 403

OVERRULED

62:19 - 63:4 Ohama, Dan 11-17-2020

 62 19 Q. When you were communicating with

 62 20 Mr. Cimino, did he ever share with you the

 62 21 concerns that were expressed in 2000 when

 62 22 the plug was tested by 3M?

 62 23 A. No.

 63 1 Q. Would that have been an

 63 2 opportunity for a representative of 3M to

 63 3 let you know the problems that they saw with

 63 4 the plug back in 2000?

Re: [62:13-63:4]

602, 702, 403

OVERRULED

63:6 - 63:9 Ohama, Dan 11-17-2020

 63 6 A. It may have been since I was

 63 7 talking about the specific flanges.

 63 8 Q. And that would have been something

 63 9 you would have liked to know?

Re: [63:6-63:9]

602, 702, 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 155-1 Filed 06/07/21 Page 120 of 151
Ohama, Dan 11-17-2020 22

63:11 - 63:11 Ohama, Dan 11-17-2020

 63 11 A. I guess, yes.

Re: [63:11-63:11]

602, 702, 403

OVERRULED

63:12 - 63:13 Ohama, Dan 11-17-2020

 63 12 MS. HUTSON: Now, if you can pull

 63 13 up 34 A please, Corey. If you will go to

Re: [63:12-63:13]

improper counter

SUSTAINED

64:2 - 65:7 Ohama, Dan 11-17-2020

 64 2 Q. Okay. Dr. Ohama, have you ever

 64 3 seen this before?

 64 4 A. Yes.

 64 5 Q. When did you see this, if you

 64 6 remember?

 64 7 A. When I -- when I was at -- while I

 64 8 was at Fort Lewis, this came out.

 64 9 Q. Is this ultimately what the

 64 10 laminate card became that you had mentioned

 64 11 in your email?

 64 12 A. I believe so, yes.

 64 13 Q. Did you have anything to do with

 64 14 the drafting of this, the wording in it?

 64 15 A. No. This was initially a slide

 64 16 that was developed from CHPM.

 64 17 Q. Okay.

 64 18 A. From CHPM.

 64 19 Q. Tell me what you mean when you say

 64 20 a slide that was developed.

 64 21 A. We would provide the hearing

 64 22 conservation technician courses and show

 64 23 them all a slide showing of all the

 65 1 different types of earplugs. I believe this

 65 2 was one of the slides or something similar

 65 3 to this was one of the slides.

 65 4 Q. So this is a slide. Would this

 65 5 have been provided -- the slide provided by

 65 6 CHPM?

 65 7 A. Yes.

Re: [64:2-65:7]

improper counter

SUSTAINED

67:12 - 68:20 Ohama, Dan 11-17-2020

 67 12 MS. HUTSON: Corey, can you go

 67 13 back to the -- the beginning of this

 67 14 document. My apologies. 1019 B.3. At the

Re: [67:12-68:20]

602, 401, 403; leading

OVERRULED

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Ohama, Dan 11-17-2020 23

 67 15 top, it says, Agreement between. Yes.

 67 16 Q. This is an agreement between Aearo

 67 17 Corporation and the U.S. Army Center For

 67 18 Health Promotion and Preventative Medicine.

 67 19 Do you see that?

 67 20 A. Yes.

 67 21 Q. If you turn to the next page, 1019

 67 22 B 4, phase two and phase three, under phase

 67 23 two, it says, Description. Aearo

 68 1 Corporations will create and test strategies

 68 2 to train deploying soldiers on the correct

 68 3 use of the CAE. Did I read that correctly?

 68 4 A. Yes.

 68 5 Q. And then if you go down under

 68 6 phase three under description, it says,

 68 7 Aearo Corporation will develop training

 68 8 materials and tools to train soldiers and

 68 9 commanders in all settings. It goes on to

 68 10 say, Interested in predeployment and

 68 11 deployed in the appropriate use of the

 68 12 Combat Arms earplugs. Do you see that?

 68 13 A. Yes.

 68 14 Q. So per this agreement, would you

 68 15 agree it spells out that for purposes of

 68 16 testing strategies, training deploying

 68 17 soldiers, developing training materials and

 68 18 tools to train soldiers, that for the Combat

 68 19 Arms earplug, that was to be done by the

 68 20 Aearo Corporation. Do you agree?

68:22 - 69:4 Ohama, Dan 11-17-2020

 68 22 A. According to this, yes.

 68 23 Q. And that would make sense, right,

 69 1 that the manufacturer of the product would

 69 2 be responsible for creating the training

 69 3 materials ultimately used by military

 69 4 audiologists and by soldiers?

Re: [68:22-69:4]

602, 401, 403, undisclosed 

expert opinion, leading

OVERRULED

69:6 - 69:12 Ohama, Dan 11-17-2020

 69 6 Q. Would you agree?

 69 7 A. In my view, yes.

Re: [69:6-69:12]

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expert opinion, leading

OVERRULED

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Ohama, Dan 11-17-2020 24

 69 8 Q. And the reason for that view that

 69 9 you have is because the manufacturer's in

 69 10 the best position to provide training

 69 11 materials and instructions on how to use

 69 12 their products; is that fair?

69:14 - 69:20 Ohama, Dan 11-17-2020

 69 14 A. Yes.

 69 15 Q. And you, as a military

 69 16 audiologist, rely on manufacturers of

 69 17 earplugs to give you full and accurate

 69 18 information about them so that you can

 69 19 properly assist service members when using

 69 20 those earplugs?

Re: [69:14-69:14]

401, 403, undisclosed expert 

opinion, leading

Re: [69:14-69:20]

602, 401, 403

OVERRULED

69:22 - 70:3 Ohama, Dan 11-17-2020

 69 22 A. Yes.

 69 23 Q. And you personally, as a military

 70 1 audiologist, rely on the materials sent by

 70 2 the manufacturers in your care and treatment

 70 3 of service members; is that right?

Re: [69:22-70:3]

602, 401, 403

OVERRULED

70:5 - 70:11 Ohama, Dan 11-17-2020

 70 5 A. Yes.

 70 6 Q. And your experience has been that

 70 7 service members also rely upon the

 70 8 information provided to them by

 70 9 manufacturers of earplugs in order to better

 70 10 understand how to use those products; is

 70 11 that fair?

Re: [70:5-70:11]

602, 401, 403, leading

OVERRULED

70:13 - 70:13 Ohama, Dan 11-17-2020

 70 13 A. Yes.

Re: [70:13-70:13]

602, 401, 403, 106, leading

OVERRULED

70:14 - 70:18 Ohama, Dan 11-17-2020

 70 14 Q. When soldiers are provided with

 70 15 instructions on how to use, has it been your

 70 16 experience that soldiers cooperate when

 70 17 given adequate instructions on how to use

 70 18 earplugs?

Re: [70:14-70:18]

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70:20 - 71:3 Ohama, Dan 11-17-2020

 70 20 A. I guess that would depend when it

 70 21 was the instructions were given.

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 70 22 Q. That -- that's fair. Let me ask

 70 23 you this. Just as a general matter, more

 71 1 often than not, when soldiers are properly

 71 2 trained, they follow the instructions given

 71 3 to them. Would you agree with that?

Re: [70:22-71:3]

improper counter; 602; 

speculation

71:5 - 71:12 Ohama, Dan 11-17-2020

 71 5 A. Not necessarily. Soldiers tend to

 71 6 listen more to what their command or

 71 7 commanders -- to their command or

 71 8 commander's instructions or their leadership

 71 9 instructions. So in our case, they may or

 71 10 may not listen. We don't -- we don't know.

 71 11 Q. You are just not in the position

 71 12 to know one way or the other?

Re: [71:5-71:12]

improper counter; 602; 

speculation

SUSTAINED 

as to 71:11-12. 

Otherwise 

OVERRULED.

71:14 - 71:18 Ohama, Dan 11-17-2020

 71 14 A. Yes, because I can explain

 71 15 something but whether or not the soldiers

 71 16 are really listening, I think usually, most

 71 17 soldiers will listen but maybe not all. I

 71 18 -- I can't say.

Re: [71:14-71:18]

improper counter; 602; 

speculaiton

SUSTAINED

71:19 - 71:22 Ohama, Dan 11-17-2020

 71 19 Q. Right. And that's why I asked the

 71 20 question, is it just more often than not

 71 21 that when given instructions, they will

 71 22 follow them?

Re: [71:19-71:22]

602, 401, 403, 106, leading

OVERRULED

72:2 - 72:8 Ohama, Dan 11-17-2020

 72 2 A. I believe so.

 72 3 Q. Yeah. And -- and the commanders

 72 4 that give them instructions and the

 72 5 commands, it's important that they also have

 72 6 all of the accurate and full information so

 72 7 they can appropriately command the service

 72 8 members on the use of earplugs, for example?

Re: [72:2-72:8]

602, 401, 403, 106, 

undisclosed expert opinion, 

leading

OVERRULED

72:10 - 72:10 Ohama, Dan 11-17-2020

 72 10 A. Yes, I believe so.

Re: [72:10-72:10]

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undisclosed expert opinion, 

leading

OVERRULED

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Ohama, Dan 11-17-2020 26

72:14 - 72:15 Ohama, Dan 11-17-2020

 72 14 MS. HUTSON: Okay. I'll mark this

 72 15 as Deposition Exhibit Number 5.

Re: [72:14-72:19]

401

OVERRULED

72:18 - 72:19 Ohama, Dan 11-17-2020

 72 18 MS. HUTSON: I actually think it

 72 19 might be 6.

Re: [72:14-72:19]

401

OVERRULED

73:3 - 73:5 Ohama, Dan 11-17-2020

 73 3 (Joint Exhibit 6 was marked for

 73 4 identification and is attached to the

 73 5 original transcript.)

Re: [73:3-74:1]

602, 401, 403, 106

OVERRULED

73:7 - 74:1 Ohama, Dan 11-17-2020

 73 7 Q. Dr. Ohama, have you ever seen this

 73 8 poster before?

 73 9 A. I've seen posters like this

 73 10 before, but I don't recall this specific

 73 11 one.

 73 12 Q. This was one of the training

 73 13 materials that 3M developed. You don't

 73 14 recall specifically whether the -- whether

 73 15 you've seen this one, it sounds like?

 73 16 A. Yes.

 73 17 Q. But you are aware that 3M had

 73 18 materials and posters like this at the -- at

 73 19 the bases?

 73 20 A. Yes.

 73 21 Q. And this specific poster is one

 73 22 that's promoting the -- the double-ended

 73 23 Combat Arms earplug; is that fair?

 74 1 A. Yes.

Re: [73:3-74:1]

602, 401, 403, 106

OVERRULED

74:9 - 74:19 Ohama, Dan 11-17-2020

 74 9 Q. There is nothing in this poster

 74 10 that alerts service members or audiologists

 74 11 that the double-sided Combat Arms earplug

 74 12 can imperceptibly loosen. Do you see that

 74 13 anywhere in there?

 74 14 A. No, I don't see that.

 74 15 Q. Is there anything in there to

 74 16 suggest that if flanges aren't folded back,

 74 17 the protection, the represented protection

Re: [74:9-74:19]

602, 401, 403, 106

Re: [74:15-74:19]

leading

OVERRULED

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Ohama, Dan 11-17-2020 27

 74 18 that the earplug provides, it may not

 74 19 provide it?

74:21 - 74:22 Ohama, Dan 11-17-2020

 74 21 A. At least I don't see that in

 74 22 there.

Re: [74:21-74:22]

602, 401, 403, 106

OVERRULED

75:11 - 75:16 Ohama, Dan 11-17-2020

 75 11 Q. If, in fact, during that testing

 75 12 that was done that was reported in the

 75 13 Flange Report actually showed that the NRR

 75 14 during that testing was only 11, would you

 75 15 expect it to be in this advertising piece

 75 16 developed by 3M?

Re: [75:11-75:16]

602, 401, 403, 106, leading

OVERRULED

75:18 - 75:21 Ohama, Dan 11-17-2020

 75 18 A. Yes.

 75 19 Q. Would you expect that in 3M's

 75 20 materials that they accurately and correctly

 75 21 say what the NRR was during its testing?

Re: [75:18-75:21]

602, 401, 403, 106, leading

OVERRULED

75:23 - 76:3 Ohama, Dan 11-17-2020

 75 23 A. I would expect that, yes.

 76 1 Q. And if the NRR that they

 76 2 represented as 22 was in fact an 11, that

 76 3 would be wrong, wouldn't it?

Re: [75:23-75:23]

602, 401, 403, 106

Re: [76:1-76:3]

602, 401, 403, 106, leading

OVERRULED

76:5 - 76:12 Ohama, Dan 11-17-2020

 76 5 A. I believe so, yes.

 76 6 Q. And as an audiologist and a -- a

 76 7 military audiologist and a hearing

 76 8 conservation manager, you believe that it's

 76 9 important that you have accurate information

 76 10 so you can keep soldiers safe and protect

 76 11 their hearing?

 76 12 A. Yes.

Re: [76:5-76:21]

602, 401, 403, 106; leading

OVERRULED

76:13 - 76:21 Ohama, Dan 11-17-2020

 76 13 Q. And while it may not be perfect,

 76 14 the -- the Army Hearing Program worked very

 76 15 hard to prevent hearing loss for service

 76 16 members; is that fair?

 76 17 A. Yes. Yes.

 76 18 Q. And it makes that job harder if

Re: [76:5-76:21]

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OVERRULED

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Ohama, Dan 11-17-2020 28

 76 19 they don't have accurate information,

 76 20 doesn't it?

 76 21 A. Yes.

77:12 - 77:17 Ohama, Dan 11-17-2020

 77 12 Q. Dr. Ohama, do you recognize this

 77 13 form?

 77 14 A. Yes.

 77 15 Q. And was this form used by you and

 77 16 others at Fort Lewis during your time there?

 77 17 A. Yes.

Re: [77:12-77:17]

MIL No. 6; 602; 401; 403

OVERRULED

78:12 - 78:18 Ohama, Dan 11-17-2020

 78 12 MS. HUTSON: And before I forget,

 78 13 we will mark this as Exhibit Number -- what

 78 14 are we on? 7. Sorry about that.

 78 15 

 78 16 (Joint Exhibit 7 was marked for

 78 17 identification and is attached to the

 78 18 original transcript.)

Re: [78:12-78:18]

MIL No. 6; 602; 401; 403

OVERRULED

80:14 - 80:17 Ohama, Dan 11-17-2020

 80 14 Q. Was it your experience that

 80 15 soldiers didn't always know the names of the

 80 16 hearing protection devices that they were

 80 17 issued?

Re: [80:14-80:17]

MIL No. 6; 602; 401; 403

OVERRULED

80:19 - 81:5 Ohama, Dan 11-17-2020

 80 19 A. Yes. There were some soldiers who

 80 20 weren't sure what -- which make or model or

 80 21 type they were using. Other --

 80 22 Q. And as such, when the forms were

 80 23 populated, suffice it to say that

 81 1 oftentimes, it was the soldier's best guess

 81 2 as to what hearing protection device they

 81 3 used and what the actual name for it was; is

 81 4 that fair?

 81 5 A. Yes.

Re: [80:19-81:5]

MIL No. 6; 602; 401; 403

OVERRULED

81:7 - 81:17 Ohama, Dan 11-17-2020

 81 7 A. I believe so, yes.

 81 8 Q. And when you go to Section G here,

 81 9 it lists several types of personal hearing

 81 10 protection, numbers one through seven. Do

Re: [81:7-81:17]

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OVERRULED

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Ohama, Dan 11-17-2020 29

 81 11 you see that?

 81 12 A. Yes.

 81 13 Q. And in this box, the service

 81 14 member has the opportunity to check or put

 81 15 in there only one of those options; is that

 81 16 right?

 81 17 A. Yes.

82:9 - 82:11 Ohama, Dan 11-17-2020

 82 9 Q. And so if a service member had

 82 10 multiple types of earplugs, there wouldn't

 82 11 be room to put that; is that also fair?

Re: [82:9-82:11]

MIL No. 6; 602; 401; 403; 

106; leading

OVERRULED

82:13 - 82:13 Ohama, Dan 11-17-2020

 82 13 A. Yes.

Re: [82:13-82:13]

MIL No. 6; 602; 401; 403; 

106; leading

OVERRULED

82:14 - 83:2 Ohama, Dan 11-17-2020

 82 14 Q. Are you familiar with John Murphy?

 82 15 A. Yes.

 82 16 Q. He's testified in this case, and

 82 17 he testified that this Section F and G

 82 18 represent the hearing protection that a

 82 19 service member was issued the day of their

 82 20 audiogram. Do you agree with that?

 82 21 A. If they were issued. Otherwise,

 82 22 if they had the earplugs on them and it was

 82 23 -- and soldiers -- soldiers were instructed

 83 1 to put them on to check the proper fit and

 83 2 condition of the earplug, yes.

83:3 - 83:6 Ohama, Dan 11-17-2020

 83 3 Q. So suffice it to say, we can't

 83 4 look at this form and know that it

 83 5 adequately captures all earplugs that that

 83 6 service member used; is that fair?

Re: [83:3-83:6]

MIL No. 6; 602; 401; 403, 

106; leading

OVERRULED

83:8 - 83:9 Ohama, Dan 11-17-2020

 83 8 A. I would say accuracy could be

 83 9 questioned, yes.

Re: [83:8-83:9]

MIL No. 6; 602; 401; 403, 

106; leading

OVERRULED

83:13 - 84:3 Ohama, Dan 11-17-2020

 83 13 Q. Dr. Ohama, are you aware that the

 83 14 Army Criminal Investigation Command actually

Re: [83:13-84:3]

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 83 15 investigated Aearo's and 3M's with regard to

 83 16 the double-ended earplugs and found that

 83 17 there was no evidence that Flange Report

 83 18 that we went over earlier was ever provided

 83 19 to anyone in the military. Were you aware

 83 20 of that?

 83 21 A. Prior to this, what I've seen, no,

 83 22 I was not aware.

 83 23 Q. And so when they made that

 84 1 finding, that's consistent with your

 84 2 experience because you were never told about

 84 3 the Flange Report?

Re: [83:23-84:3]

leading

84:5 - 84:12 Ohama, Dan 11-17-2020

 84 5 A. I don't recall ever seeing it. So

 84 6 I don't recall hearing or seeing this Flange

 84 7 Report.

 84 8 Q. I take it you also, prior to this

 84 9 deposition, had not seen the investigation

 84 10 report that was issued based on their

 84 11 investigation of the earplug; is that fair?

 84 12 A. Yes, that's correct.

Re: [84:5-84:12]

MIL No. 6; 602; 401; 403, 106

OVERRULED

85:7 - 85:11 Ohama, Dan 11-17-2020

 85 7 Q. And would that be consistent with

 85 8 your experience, that you did not know that

 85 9 the double-ended Combat Arms earplug had

 85 10 been tested in 2000, and it was noted to

 85 11 have imperceptible loosening?

Re: [85:7-85:11]

MIL No. 6; 602; 401; 403, 

106; leading

OVERRULED

85:13 - 85:15 Ohama, Dan 11-17-2020

 85 13 A. Yes.

 85 14 Q. That was your experience as well?

 85 15 A. Yes.

Re: [85:13-85:15]

MIL No. 6; 602; 401; 403, 

106; leading

OVERRULED

85:17 - 85:20 Ohama, Dan 11-17-2020

 85 17 Per the test results, the flanges

 85 18 should always be pulled back. That was

 85 19 something you also did not know; is that

 85 20 fair?

Re: [85:17-85:20]

MIL No. 6; 602; 401; 403, 

106; leading

OVERRULED

85:22 - 85:22 Ohama, Dan 11-17-2020

 85 22 A. Yes.

Re: [85:22-86:9]

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106; leading

OVERRULED

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Ohama, Dan 11-17-2020 31

85:23 - 86:8 Ohama, Dan 11-17-2020

 85 23 Q. Again, the manufacturer should

 86 1 inform the military of this problem so that

 86 2 the military could advise soldiers of the

 86 3 slippage problem. Did I read that

 86 4 correctly?

 86 5 A. Yes.

 86 6 Q. Dr. Ohama, do you agree that the

 86 7 manufacturer, 3M, should have informed the

 86 8 military of this problem?

Re: [85:22-86:9]

MIL No. 6; 602; 401; 403, 

106; leading

OVERRULED

86:10 - 86:15 Ohama, Dan 11-17-2020

 86 10 A. Yes.

 86 11 Q. And if they had, you would have

 86 12 been better able to inform the service

 86 13 members about the double-ended earplug. Is

 86 14 that fair?

 86 15 A. Yes.

Re: [86:10-86:15]

MIL No. 6; 602; 401; 403, 106

OVERRULED

87:6 - 87:8 Ohama, Dan 11-17-2020

 87 6 (Joint Exhibit 9 was marked for

 87 7 identification and is attached to the

 87 8 original transcript.)

Re: [87:6-87:16]

MIL No. 6; 602; 401; 403, 106

SUSTAINED

87:10 - 87:16 Ohama, Dan 11-17-2020

 87 10 Q. Do you see here that 3M, on

 87 11 November 17th, 2015, issued a

 87 12 discontinuation of the Combat Arms earplug

 87 13 version two? Do you see that?

 87 14 A. Yes.

 87 15 Q. Were you made aware of that?

 87 16 A. No.

Re: [87:6-87:16]

MIL No. 6; 602; 401; 403, 106

SUSTAINED

89:1 - 89:5 Ohama, Dan 11-17-2020

 89 1 Q. Good afternoon, Dr. Ohama. Thank

 89 2 you very much for spending your day with us

 89 3 today. I will try to keep this as brief as

 89 4 possible, and we really appreciate your time

 89 5 here.

Re: [89:1-89:5]

improper counter

SUSTAINED

93:16 - 94:4 Ohama, Dan 11-17-2020

 93 16 Where did you go to college, Dr.

 93 17 Ohama?

 93 18 A. I went -- received my bachelor

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Ohama, Dan 11-17-2020 32

 93 19 degree in speech pathology and audiology

 93 20 from the University of Hawaii in '94. I got

 93 21 my master's in audiology from the University

 93 22 of Hawaii in 2000 -- did I say 2004? 1994

 93 23 was my bachelor's, and my master's in '96.

 94 1 And from there, I -- I joined the Army in

 94 2 2002 as an audiologist and obtained my

 94 3 doctorate of audiology degree from A.T.

 94 4 Still University in 2005.

94:5 - 95:5 Ohama, Dan 11-17-2020

 94 5 Q. Great. And do you hold any

 94 6 professional licenses currently?

 94 7 A. Yes. Hawaii, audiologist.

 94 8 Q. Okay. Okay. And we went through

 94 9 the stations where you were stationed while

 94 10 in the military. I just wanted to clarify a

 94 11 couple of points. You said that you were at

 94 12 Fort Lewis between 2004 and 2009, but you

 94 13 were deployed to Iraq for part of that time;

 94 14 is that correct?

 94 15 A. Yes.

 94 16 Q. And can you tell me the exact

 94 17 dates of your deployment?

 94 18 A. September 2007 through December

 94 19 2008.

 94 20 Q. Okay. And then you returned to

 94 21 Fort Lewis before going to Schofield

 94 22 Barracks in June of 2009; is that correct?

 94 23 A. Yes. It could have been March. I

 95 1 forget. Between March and May because I

 95 2 think I reported to Schofield Barracks.

 95 3 Q. And you were at Fort Lewis up

 95 4 until that time; is that correct?

 95 5 A. Yes.

Re: [94:5-95:5]

improper counter

SUSTAINED

95:14 - 97:5 Ohama, Dan 11-17-2020

 95 14 Q. Okay. So with respect to your

 95 15 military experience, has it been your

 95 16 experience since you joined the military the

 95 17 noise exposures can present a risk of

Re: [95:14-97:5]

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SUSTAINED

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 95 18 hearing loss and tinnitus to service

 95 19 members?

 95 20 A. Yes.

 95 21 Q. And can you provide an example of

 95 22 some of the types of noises that can present

 95 23 a risk of hearing loss and tinnitus to

 96 1 service members?

 96 2 A. It's -- primarily, it was the

 96 3 exposure to weapons fire and secondary to

 96 4 continuous type noise.

 96 5 Q. And when you say continuous type

 96 6 noise, would tanks be the example of

 96 7 continuous noise?

 96 8 A. Yes. Machinery or vehicles.

 96 9 Q. Aircraft?

 96 10 A. Aircrafts.

 96 11 Q. Okay. And does a service member's

 96 12 noise exposures sometimes include impulse

 96 13 noises?

 96 14 A. Weapons fire would be considered

 96 15 -- well, impulse, could be if it was --

 96 16 maybe the engineers if they were using some

 96 17 type of tools or equipment, they might -- or

 96 18 mechanics, they might have exposure to the

 96 19 impulse type noises.

 96 20 Q. Okay. Can you -- can you describe

 96 21 for me what your definition would be of an

 96 22 impulse noise?

 96 23 A. Impulse would be more of a rapid

 97 1 succession of loud bursts of noise.

 97 2 Q. Would an explosive device be an

 97 3 example of an impulse noise?

 97 4 A. That would be more of an impact

 97 5 type of noise, explosion or weapons fire.

99:10 - 99:19 Ohama, Dan 11-17-2020

 99 10 Q. Yeah, absolutely. In your

 99 11 experience, is it the case that service

 99 12 members are less likely to experience

 99 13 hearing loss or tinnitus if -- if they use

Re: [99:10-99:15]

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Re: [99:16-99:19]

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SUSTAINED

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 99 14 the hearing protection devices?

 99 15 A. Yes.

 99 16 Q. In your experience, have you ever

 99 17 encountered situations where service members

 99 18 are reluctant to use hearing protection

 99 19 devices?

99:22 - 99:22 Ohama, Dan 11-17-2020

 99 22 A. Reluctant or noncompliant, yes.

Re: [99:22-99:22]

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SUSTAINED

100:9 - 100:13 Ohama, Dan 11-17-2020

 100 9 Q. In your experience, has it ever

 100 10 been the case that maintaining situational

 100 11 awareness was one of the reasons why a

 100 12 service member might have been reluctant to

 100 13 wear a hearing protection device?

Re: [100:9-100:13]

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SUSTAINED

100:16 - 101:1 Ohama, Dan 11-17-2020

 100 16 A. In my experience, I've read

 100 17 testimonies on some soldiers saying that,

 100 18 similar things like that, but I've never

 100 19 really seen that in -- well, I've seen it --

 100 20 soldiers say that when they went to combat,

 100 21 for example, why they wouldn't use it. I've

 100 22 seen -- I've seen soldiers, just more art --

 100 23 articles or use article or some testimony

 101 1 somewhere.

Re: [100:16-101:1]

improper counter; 611; 602

SUSTAINED

108:1 - 108:8 Ohama, Dan 11-17-2020

 108 1 Q. Dr. Ohama, before we went off the

 108 2 record, we were discussing the DOD

 108 3 instruction, and I'll have Cassie put that

 108 4 back up, which is Exhibit 12.

 108 5 

 108 6 (Joint Exhibit 12 was marked for

 108 7 identification and is attached to the

 108 8 original transcript.)

108:10 - 108:19 Ohama, Dan 11-17-2020

 108 10 Q. And -- and I believe your

 108 11 testimony that this is a more general

 108 12 instruction as opposed to the Army pamphlet,

 108 13 which is a more specific instruction; is

 108 14 that correct?

Re: [108:10-108:19]

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 108 15 A. Yes.

 108 16 Q. Okay. And you stated that you

 108 17 believe that this was updated sometime in

 108 18 2010?

 108 19 A. About that timeframe, yes.

109:11 - 109:14 Ohama, Dan 11-17-2020

 109 11 Q. And was this also in effect when

 109 12 you were the hearing conservation program

 109 13 manager at Fort Lewis in 2006?

 109 14 A. Yes.

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 111 20 Q. Dr. Ohama, the instruction states

 111 21 that the DOD component shall prepare a

 111 22 written plan for the implementation of a

 111 23 comprehensive hearing conservation program.

 112 1 Do you understand the Army to be one of the

 112 2 DOD components as stated here?

 112 3 A. Yes.

 112 4 Q. And is the pamphlet that we looked

 112 5 at earlier the written plan that the Army

 112 6 had in use during your time in the military?

 112 7 A. Yes.

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 112 10 Q. Section 6.6.2 here, Dr. Ohama,

 112 11 states, The DOD component shall issue

 112 12 personal hearing protectors free to all

 112 13 personnel who work in designa- -- designated

 112 14 hazardous noise areas or operate noise

 112 15 hazardous equipment. Did I read that

 112 16 correctly?

 112 17 A. Yes.

 112 18 Q. And on the same page, which is

 112 19 6.6.7, the instruction states, Preformed

 112 20 earplugs shall be fitted and issued only

 112 21 under the supervision of personnel who have

 112 22 been specifically trained to fit earplugs;

 112 23 is that correct?

 113 1 A. Yes.

 113 2 Q. And Section 6.6.9, which is just a

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 113 3 few lines down, states that Medically

 113 4 trained personnel must examine and fit the

 113 5 fit and condition of preformed and custom

 113 6 earplugs at least annually. Did I read that

 113 7 correctly?

 113 8 A. Yes.

 113 9 Q. And during your time in the

 113 10 military, were these requirements all

 113 11 requirements that you followed as part of

 113 12 your -- your hearing conservation programs?

 113 13 A. During my whole time in the

 113 14 military? I don't think it was consistently

 113 15 done but primar- -- majority of the time, it

 113 16 was done.

115:1 - 116:12 Ohama, Dan 11-17-2020

 115 1 Q. And would you have been

 115 2 responsible for ensuring that these

 115 3 provisions were followed during your time at

 115 4 Fort Lewis?

 115 5 A. Yes.

 115 6 Q. Okay. And do you know if these

 115 7 provisions were consistently followed under

 115 8 your hearing conservation program at Fort

 115 9 Lewis?

 115 10 A. I think the -- well, as far as the

 115 11 personnel being trained, it was -- in Fort

 115 12 Lewis, the medics from each battalion, at

 115 13 least two medics in each battalion were

 115 14 certified as hearing consultation

 115 15 technicians, so it would be their

 115 16 responsibility to make sure that this was

 115 17 being done.

 115 18 Q. And I believe you testified before

 115 19 that the medics in these battalions were

 115 20 provided with a 40-hour training on

 115 21 hearing--

 115 22 A. Yes.

 115 23 Q. -- protection devices?

 116 1 A. Yes.

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 116 2 Q. Do you know if that training

 116 3 specifically included training on the Combat

 116 4 Arms dual-ended earplug?

 116 5 A. Yes.

 116 6 Q. And do you recall what that

 116 7 training consisted of?

 116 8 A. It was similar to what -- the

 116 9 examples shown earlier with the instructions

 116 10 on which side to use, the end out type

 116 11 materials. Those are provided to the medics

 116 12 also.

116:16 - 117:19 Ohama, Dan 11-17-2020

 116 16 Q. And, Dr. Ohama, I believe you --

 116 17 you just testified that this was the more

 116 18 specific instructions regarding hearing

 116 19 conservation programs related to the Army

 116 20 that you would have followed; is that

 116 21 correct?

 116 22 A. Yes. At this information level,

 116 23 yes.

 117 1 Q. Okay. And similar to the DOD

 117 2 instruction, Section 6.1a here states that

 117 3 All personnel working -- working in or

 117 4 visiting potentially noise hazardous areas

 117 5 must have hearing protectors with them at

 117 6 all time; is that true?

 117 7 A. Yes.

 117 8 Q. And then Section 6.2, entitled

 117 9 Protector Requirements, that provides the

 117 10 rules on what types of hearing protection

 117 11 devices to wear for different levels of

 117 12 noises; is that right?

 117 13 A. Yes.

 117 14 Q. And, for example, if we go to

 117 15 Subsection B, it states that Greater than

 117 16 103 dBA, TWA and up, and including 108 dBA,

 117 17 TWA personnel must wear double hearing

 117 18 protection. Do you see that?

 117 19 A. Yes.

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118:1 - 118:7 Ohama, Dan 11-17-2020

 118 1 Q. So the Army pamphlet required that

 118 2 for noises of greater than 108 decibel --

 118 3 decibels at time-weighted average and up to

 118 4 108 decibels time-weighted average,

 118 5 personnel must wear double hearing

 118 6 protection, correct?

 118 7 A. Yes.

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 118 9 Q. Section 6.3, which is just on the

 118 10 other side of the page here, is entitled

 118 11 Characteristics. And in Subsection A1, it

 118 12 states, Preformed earplugs are triple or

 118 13 single flanged earplugs. Medically trained

 118 14 personnel must fit and examine these

 118 15 earplugs at least annually to ensure proper

 118 16 fit and condition. Do you see that?

 118 17 A. Yes.

 118 18 Q. And would the dual-ended Combat

 118 19 Arms earplug be considered a preformed

 118 20 earplug?

 118 21 A. Yes.

 118 22 Q. Okay. So in your experience, any

 118 23 service member in the Army who received the

 119 1 dual-ended Combat Arm earplug should have

 119 2 been examined at least annually by trained

 119 3 medical personnel for fit and condition; is

 119 4 that correct?

 119 5 A. Yes.

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 121 11 Q. On a typical day, if you were

 121 12 working in the audiology clinic in South

 121 13 Korea, for example, how many -- how many

 121 14 service members would you see?

 121 15 A. As patients?

 121 16 Q. Yes.

 121 17 A. Well, for evaluations, anywhere

 121 18 from five to seven, on average.

 121 19 Q. And was that similar at Fort

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 121 20 Lewis?

 121 21 A. Fort Lewis was a little busier, as

 121 22 I recall. More maybe eight to ten. Eight

 121 23 to ten sometimes on days where I worked at

 122 1 the clinic.

 122 2 Q. And during these visits, would you

 122 3 issue service members hearing protection

 122 4 devices?

 122 5 A. Yes.

 122 6 Q. What was your process for

 122 7 determining which hearing protection device

 122 8 to offer to the particular service member?

 122 9 A. A quick -- quick view of the ear

 122 10 canal to estimate the size of the earplug

 122 11 they would take and having them try it on

 122 12 and provide them instructions on how to

 122 13 insert the earplug and obtain an appropriate

 122 14 fit.

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 122 15 Q. How did you ensure that service

 122 16 members were getting the right hearing

 122 17 protection for their level of noise

 122 18 exposure?

 122 19 A. Quick checks. We'll do the tug

 122 20 check to make sure that there was a good

 122 21 seal and it wasn't falling out, having them

 122 22 -- you know, asking them how they -- how it

 122 23 felt, you know, was -- was their -- their

 123 1 the voice louder, things like that.

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 125 8 Q. Okay. You -- you just testified

 125 9 when you were fitting service members for

 125 10 preformed plugs, you did the -- a tug test;

 125 11 is that correct?

 125 12 A. Yes.

 125 13 Q. And can you describe the tug test

 125 14 for me?

 125 15 A. Once you observe that the earplug

 125 16 was inserted properly -- properly, you know,

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 125 17 the outer flange should be close to the

 125 18 outer edge of the ear canal. The third

 125 19 flange or the last flange should be near or

 125 20 close to the outer edge of the ear canal

 125 21 itself. I would actually tug on the earplug

 125 22 to make sure it wasn't too loose or falling

 125 23 out.

 126 1 Q. And would you do that test for --

 126 2 for both ears?

 126 3 A. Yes.

 126 4 Q. And would you also do a visual

 126 5 inspection of the earplugs?

 126 6 A. Yes.

 126 7 Q. Any other testing you would do to

 126 8 ensure proper fit?

 126 9 A. Besides asking them questions

 126 10 about how their voice felt and how it fit,

 126 11 if it felt airtight. That would be about

 126 12 it.

126:13 - 126:23 Ohama, Dan 11-17-2020

 126 13 Q. Okay. And did medical personnel

 126 14 actually insert the hearing protection

 126 15 devices into the service members' ears, or

 126 16 would they do that themselves?

 126 17 A. I preferred -- preferred having

 126 18 them do it themselves so once we left, they

 126 19 would be able to put it back in correctly.

 126 20 So I would instruct them to put it on. I

 126 21 would watch them. And once they had it on,

 126 22 I would ask them how it felt and do a

 126 23 physical tug test.

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 127 1 Q. And did medical personnel train

 127 2 service members about what to do if an

 127 3 earplug loosened during use?

 127 4 A. I'm not sure if -- if they were

 127 5 trained audiology technicians, they should

 127 6 have switched it out if there was any issues

 127 7 with the fit of the earplug.

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127:21 - 128:7 Ohama, Dan 11-17-2020

 127 21 Q. Did you ever instruct service

 127 22 members on what to do if their earplugs

 127 23 loosened during use?

 128 1 A. I believe so when -- when I

 128 2 instructed soldiers or provided training on

 128 3 earplugs, I would explain if there -- if

 128 4 there were any problems with the fit, you

 128 5 know, of course, seek help, assistance to

 128 6 replace the earplugs, either from us or from

 128 7 their medics who were trained.

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 128 8 Q. About how long did a typical

 128 9 fitting for an HPD take?

 128 10 A. For one person, one -- one on one?

 128 11 I would say about, not long, 30 seconds, a

 128 12 minute depending on how quickly they put it

 128 13 on. If they were very familiar, it would be

 128 14 fast. If they were not familiar with using

 128 15 an earplug, it would take longer.

 128 16 Q. And how often were service members

 128 17 required to report to the hearing

 128 18 conservation program?

 128 19 A. Annually. They would have to get

 128 20 their annual audiometry done.

 128 21 Q. And would they also have to report

 128 22 pre and postdeployment?

 128 23 A. Yes.

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 129 1 Q. Any other instances where they

 129 2 would be required to report to the hearing

 129 3 conservation program?

 129 4 A. If they experienced any type of

 129 5 noise exposure and there were concerns about

 129 6 a hearing injury, they would report.

 129 7 Q. And were service members examined

 129 8 for fit and condition of their preformed

 129 9 earplugs at all of these visits?

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 129 10 A. It depends where and the

 129 11 capability, again, but usually, it was done.

129:12 - 130:6 Ohama, Dan 11-17-2020

 129 12 Q. And were these exams conducted

 129 13 differently at any of the different bases

 129 14 you served at, or was it a fairly uniform

 129 15 procedure across your service?

 129 16 A. You mean to actually check the fit

 129 17 annually?

 129 18 Q. Yes.

 129 19 A. Again, it was different at each

 129 20 installation. There were different

 129 21 capabilities. So some installations, pretty

 129 22 much everyone was checked. If you didn't

 129 23 have one, you would be given an earplug and

 130 1 put it on and checked. At other places, it

 130 2 was more focused on the hearing test at the

 130 3 time, so it wasn't really -- there wasn't

 130 4 really time or capability to check everyone

 130 5 for earplugs. We'd rely on the unit's

 130 6 medics to support us with that.

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 130 7 Q. And which installations was

 130 8 everybody checked, in your experience?

 130 9 

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 130 11 A. This was in Hawaii. More Hawaii,

 130 12 Fort Bragg, Fort Lew- -- not Fort Lewis.

 130 13 Fort Hood.

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 130 14 Q. So at -- in South Korea and at

 130 15 Fort Lewis, did you rely more on the medics

 130 16 to conduct these -- these fits?

 130 17 A. Yes. More on the certified

 130 18 technicians, we would rely on them to

 130 19 support the units with checking the

 130 20 soldiers.

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 130 21 Q. During these visits, was there any

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 130 22 educational information made available to

 130 23 service members regarding hearing protection

 131 1 devices?

 131 2 A. Again, different installations

 131 3 with different capabilities, yes, we would

 131 4 provide training and education, unit

 131 5 briefing type education, advanced.

 131 6 Q. Can you describe what types of

 131 7 educational materials were provided at these

 131 8 briefings?

 131 9 A. It was more verbal, verbal

 131 10 explanations, when, how to use earplugs, and

 131 11 they would basically fit -- if -- if we had

 131 12 the capability, we would physically fit

 131 13 every soldier with earplugs.

 131 14 Q. Would you ever show videos,

 131 15 educational videos on hearing protection?

 131 16 A. It was --sometimes we would use

 131 17 videos more for the civilian, the federal

 131 18 civilian workers from the different

 131 19 directorates since they weren't able to come

 131 20 together as a, you know, a unit formation.

 131 21 They all work in separate areas. So they

 131 22 would utilize more the video type of

 131 23 education -- training education material.

132:1 - 132:8 Ohama, Dan 11-17-2020

 132 1 Q. And what about handouts?

 132 2 A. Handouts, not necessarily

 132 3 handouts. At Fort Lewis, we had to use the

 132 4 handout to help to supplement the units

 132 5 because they weren't really sure how to

 132 6 brief SOPs and other things that was in the

 132 7 VA pamph, so we would help them with

 132 8 handouts and examples.

132:9 - 132:15 Ohama, Dan 11-17-2020

 132 9 Q. At Fort Lewis, what did these

 132 10 handouts consist of?

 132 11 A. The requirements, basic

 132 12 requirements, of a hearing conservation

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 132 13 program and/or information if any assistance

 132 14 was required or support services was needed,

 132 15 they could call us.

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 134 7 MS. NEGLIA: So I'd like to go

 134 8 back to -- well, I'd like to actually

 134 9 introduce a new exhibit, which will be

 134 10 Exhibit 13. It's similar to the Exhibit 4

 134 11 we looked at earlier, but I think it's maybe

 134 12 a little bit easier to see. So, Cassie, if

 134 13 you could pull up the wallet card.

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 134 14 Q. Dr. Ohama, we -- we looked at a

 134 15 very similar document earlier. This one is

 134 16 just in color, and I think it's a little

 134 17 easier to read. And you stated you were

 134 18 familiar with this document, correct?

 134 19 A. Yes.

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 134 20 Q. And was this document distributed

 134 21 to service members?

 134 22 A. Yes.

134:23 - 135:2 Ohama, Dan 11-17-2020

 134 23 Q. Do you recall when in your

 135 1 experience, you would have distributed this

 135 2 -- this wallet card to service members?

135:5 - 135:12 Ohama, Dan 11-17-2020

 135 5 A. A lot of -- most of the times, we

 135 6 would hand it out to soldiers. But usually,

 135 7 we would provide these to the medics at the

 135 8 units to pass out, hand out.

 135 9 Q. And these would have been medics

 135 10 that you would have trained to distribute

 135 11 the Combat Arms at Fort Lewis and also at

 135 12 Camp Casey?

135:15 - 135:15 Ohama, Dan 11-17-2020

 135 15 A. More at Fort Lewis.

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136:5 - 137:1 Ohama, Dan 11-17-2020

 136 5 Q. Dr. Ohama, do you see in the

 136 6 bottom right-hand corner of this document

 136 7 that there's a picture of the dual-ended

 136 8 Combat Arms with the green flange folded

 136 9 back?

 136 10 A. Yes.

 136 11 Q. And in this second line of the --

 136 12 the text next to that photograph, it says,

 136 13 For very large ear canals, fold opposing

 136 14 plug back?

 136 15 A. Yes.

 136 16 Q. And it also notes, Check proper

 136 17 fit by gently tugging on plug for tension

 136 18 just above there?

 136 19 A. Yes. Yes.

 136 20 Q. And it's your testimony that these

 136 21 cards were distributed to medics to pass out

 136 22 to service members and also made available

 136 23 in the clinics to soldiers at Fort Lewis?

 137 1 A. Yes.

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 137 3 A. Yes.

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 137 7 Q. The top line here says, From a

 137 8 soldier in Iraq, and then there's a -- a

 137 9 quote from a soldier in Iraq stating Combat

 137 10 Arms earplugs work great in this

 137 11 environment. They probably made the

 137 12 difference between eardrum hearing damage

 137 13 and not. They definitely allow you to

 137 14 mentally recover very quickly so you are

 137 15 able to deal with your situation versus

 137 16 standing around like a stunned mullet for a

 137 17 while. Do you see that?

 137 18 A. Yes.

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 138 2 Q. And at the bottom of this

 138 3 document, it's branded with U.S.A. CHPM; is

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 138 4 that correct?

 138 5 A. Yes.

 138 6 Q. And was it your testimony earlier

 138 7 that these wallet cards were provided by

 138 8 CHPM?

 138 9 A. Yes.

138:12 - 139:13 Ohama, Dan 11-17-2020

 138 12 Q. Dr. Ohama, have you ever seen this

 138 13 document or a document like it before?

 138 14 A. It looks familiar, yes.

 138 15 Q. And what is it, to your knowledge?

 138 16 A. It was when the Combat Arms

 138 17 earplugs were first being fielded around

 138 18 that timeframe, I think.

 138 19 Q. Okay. And was this a document

 138 20 produced by U.S.A. CHPM?

 138 21 A. I believe so, yes.

 138 22 Q. And -- and just for the jury, can

 138 23 you remind us what U.S.A. CHPM is?

 139 1 A. U.S. Army -- oh, me?

 139 2 U.S. Army Center For Health

 139 3 Promotional Preventative Medicine.

 139 4 Q. So this is a -- this is a

 139 5 government organization; correct?

 139 6 A. It's an Army -- yes, it's Army, an

 139 7 Army office.

 139 8 Q. And do you know what the purpose

 139 9 of this -- this document was?

 139 10 A. Well, it was being fielded, so I

 139 11 guess it was to provide information of what

 139 12 these earplugs were and what it was supposed

 139 13 to do and how it was supposed to work.

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 139 23 Q. Was the intent of this to inform

 140 1 audiologists about the features of the

 140 2 Combat Arms dual-ended?

 140 3 A. Yes. I don't think it was

 140 4 specifically for audiologists. You could

 140 5 give it to, again, technicians or whoever

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 140 6 was involved with distributing earplugs to

 140 7 soldiers.

 140 8 Q. And could it have been just also

 140 9 distributed to service members as

 140 10 informational materials?

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 140 12 A. It could have.

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 140 23 Q. And do you see the third bullet

 141 1 point down which states, For exceptionally

 141 2 large ear canals, fold the opposing plug

 141 3 back to enhance proper insertion?

 141 4 A. Yes.

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 144 12 Q. Other than the wallet card that we

 144 13 reviewed briefly, are you aware of any other

 144 14 informational or educational information

 144 15 that service members were provided regarding

 144 16 the dual-ended Combat Arms at the bases you

 144 17 were located at?

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 144 20 A. I think I've seen posters at

 144 21 certain places, at maybe aid stations, so

 144 22 there were different, you know, posters and

 144 23 things. But yes, I have seen it.

 145 1 Q. Okay.

 145 2 A. And other type of material.

 145 3 Q. Other than posters, what -- what

 145 4 other types of materials related to the

 145 5 Combat Arms dual-ended have you seen

 145 6 distributed to service members?

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 145 12 A. Throughout my career?

 145 13 Q. Sure.

 145 14 A. Military career?

 145 15 Q. Sure.

 145 16 A. Well, I've seen -- I have seen

 145 17 videos. I'm not sure if I saw a video

 145 18 specific to the double-ended one. There may

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 145 19 have been, but I don't recall specifically

 145 20 what -- what was in those videos, but there

 145 21 probably would be. I'm not sure.

147:2 - 147:4 Ohama, Dan 11-17-2020

 147 2 Q. And when would the dual-ended

 147 3 Combat Arms first be issued to service

 147 4 members?

147:6 - 147:10 Ohama, Dan 11-17-2020

 147 6 A. When -- that was when it was

 147 7 initially being ordered in bulk, I guess.

 147 8 So usually, it was -- when I've seen it

 147 9 being issued most was at the units when they

 147 10 were getting ready to deploy.

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 147 18 Q. At -- at any time. After a

 147 19 service member was first issued with their

 147 20 earplugs, issued their earplugs at

 147 21 predeployment, would they receive new pairs

 147 22 on a set schedule?

 147 23 A. I would -- I think it depends on

 148 1 the unit, if they were reordering for their

 148 2 soldiers while they were deployed. There

 148 3 were some units that would reorder.

 148 4 Q. And are you aware of whether

 148 5 service members could request a new pair at

 148 6 any time?

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 148 9 A. Yeah, they should -- they should

 148 10 have been, yes. They could request for a

 148 11 different type of earplug.

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 148 12 Q. And at Fort Lewis when you issued

 148 13 the dual-ended Combat Arms earplugs, did you

 148 14 also issue carrying cases to service members

 148 15 at the same time?

148:18 - 148:18 Ohama, Dan 11-17-2020

 148 18 A. Yes.

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148:19 - 149:4 Ohama, Dan 11-17-2020

 148 19 Q. Can you describe that carrying

 148 20 case by any chance?

 148 21 A. It's the -- the -- a plastic case.

 148 22 Well, it's a rectangular case that has a --

 148 23 a rotating cover to open and close with the

 149 1 insertion tool on the cover that works with

 149 2 specific preformed earplugs and a chain to

 149 3 hold it onto a buttonhole, buttonhole or a

 149 4 belt loop.

149:5 - 149:12 Ohama, Dan 11-17-2020

 149 5 Q. And was this the same carrying

 149 6 case you would distribute throughout the

 149 7 time you distributed the Combat Arms version

 149 8 two?

 149 9 A. A majority of time it was this ear

 149 10 -- earplug case. There was an earlier

 149 11 version, a round cylinder type of case used,

 149 12 but that was being phased out.

153:2 - 154:3 Ohama, Dan 11-17-2020

 153 2 Q. Okay. Fair enough. And then

 153 3 moving to Fort Lewis, which you were

 153 4 stationed at beginning in 2004, correct?

 153 5 A. Yes.

 153 6 Q. The -- the hearing conservation

 153 7 program there did issue the dual-ended

 153 8 Combat Arms earplug, correct?

 153 9 A. So just to clarify, again, it's

 153 10 the same logistic type issues. We weren't

 153 11 able to order the Combat Arms earplugs, the

 153 12 double-ended one, for all soldiers

 153 13 throughout the installation. We had -- we

 153 14 had a limited supply. So as far as me

 153 15 actually fitting soldiers personally with

 153 16 that Combat Arms double-sided earplugs, it

 153 17 was very little that I can remember, maybe

 153 18 less than a hundred even, not very many.

 153 19 Most of these earplugs were distributed or

 153 20 ordered by the unit themselves, and so we

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Ohama, Dan 11-17-2020 50

 153 21 would rely on the trained medics to fit the

 153 22 soldiers with these earplugs, the double --

 153 23 double-sided, when they were available.

 154 1 Again, that -- by the time I

 154 2 deployed in 2007, we were already

 154 3 transitioning them to the new version.

154:4 - 154:7 Ohama, Dan 11-17-2020

 154 4 Q. Understood. And going back to the

 154 5 time that the hearing conservation program

 154 6 was issuing these in or around 2004; is that

 154 7 correct?

154:9 - 154:11 Ohama, Dan 11-17-2020

 154 9 A. Yes, we did have them available.

 154 10 Again, not very large numbers. We didn't

 154 11 have any large supply of -- of double-ended.

155:1 - 155:12 Ohama, Dan 11-17-2020

 155 1 Q. And do you know when those wallet

 155 2 cards began being issued?

 155 3 A. I think it -- we received the

 155 4 first batch from CHPM around -- before I

 155 5 deployed so 2000, maybe, 6 timeframe, around

 155 6 that.

 155 7 Q. And if the hearing conservation

 155 8 program issued the Combat Arms earplugs in

 155 9 that timeframe, would the hearing

 155 10 conservation program have also provided the

 155 11 wallet card?

 155 12 A. When it became available, yes.

Re: [155:1-155:12]

improper counter

SUSTAINED

155:22 - 156:2 Ohama, Dan 11-17-2020

 155 22 Q. The medics --

 155 23 A. Some aid -- yes, some aid stations

 156 1 at each battalion would have posters and

 156 2 others may not, that kind of thing.

156:3 - 156:7 Ohama, Dan 11-17-2020

 156 3 Q. Would your program have provided

 156 4 wallet cards to the medics for distribution

 156 5 to service members who were receiving Combat

 156 6 Arms earplugs version two?

 156 7 A. Yes.

Re: [156:3-156:7]

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159:4 - 159:6 Ohama, Dan 11-17-2020

 159 4 Thank you very much for your time

 159 5 today, Dr. Ohama. I very much appreciate

 159 6 it.

159:8 - 159:9 Ohama, Dan 11-17-2020

 159 8 Q. Dr. Ohama, I will not take very

 159 9 long. I just have a few follow-up questions

164:18 - 165:2 Ohama, Dan 11-17-2020

 164 18 Q. Right. And I'll be a bit more

 164 19 specific. Let's talk about that form

 164 20 audiogram that we went through earlier that

 164 21 says quad flange. If a -- a form like that

 164 22 has a spec- -- one specific earplug

 164 23 mentioned, that doesn't mean, does it, that

 165 1 they didn't get other earplugs also issued

 165 2 to them?

Re: [164:18-165:2]

leading

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602, MIL No. 6, 401, 403

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165:4 - 165:13 Ohama, Dan 11-17-2020

 165 4 A. Yes. It -- I wouldn't say that

 165 5 would have been -- always been accurately

 165 6 indicated, indicating which earplug they

 165 7 were using. It just would have depended on

 165 8 who the technician was and what they put on

 165 9 there sometimes.

 165 10 Q. Have you seen that before, Dr.

 165 11 Ohama, where there's inaccurate information

 165 12 on these forms with respect to the types of

 165 13 earplugs that were issued?

Re: [164:18-165:13]

602, MIL No. 6, 401, 403

Re: [165:4-165:13]

602, MIL No. 6, 401, 403; 

leading

OVERRULED

165:15 - 166:1 Ohama, Dan 11-17-2020

 165 15 A. I would say there were times I've

 165 16 seen inaccurate information.

 165 17 Q. And at the end of the day, if we

 165 18 want to know from a given service member's

 165 19 history in the military and they had a good

 165 20 memory about the earplugs that they used,

 165 21 would that be, in your mind, the best

 165 22 evidence to figure out whether they actually

 165 23 used the Combat Arms, just talk to the

 166 1 service member?

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OVERRULED

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166:3 - 166:13 Ohama, Dan 11-17-2020

 166 3 A. To ask them specifically if

 166 4 they've used it, yes.

 166 5 Q. And on that same topic, where you

 166 6 were asked a lot of questions about where

 166 7 you did and did not issue Combat Arms

 166 8 earplugs, simply because you personally did

 166 9 not issue Combat Arms earplugs during a

 166 10 timeframe or at a specific base, that does

 166 11 not mean, does it, that other units at that

 166 12 base didn't issue the Combat Arms

 166 13 double-sided earplug? Is that fair?

Re: [166:3-166:13]

602, 401, 403; leading

OVERRULED

166:15 - 166:17 Ohama, Dan 11-17-2020

 166 15 A. Yes. Because of the logistic --

 166 16 different logistic systems we were working

 166 17 with.

Re: [166:15-166:17]

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OVERRULED

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