EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 1 of 106
Merkley, John 2-26-2020

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

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Merkley, John 2-26-2020 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

8:7 - 8:18 Merkley, John 2-26-2020

 8 7 Q. Good morning, LTC Merkley. My name is

 8 8 Nick Wasdin, and I represent 3M Company in this

 8 9 case. You serve as the Army Hearing Division chief

 8 10 at the Army Public Health Center in Aberdeen,

 8 11 Maryland; is that right?

 8 12 A. I'm -- I'm the Army Hearing Program

 8 13 Manager. There's been a reorganization over the

 8 14 last year, so it's not -- it's not a division any

 8 15 more. It's a -- it's a program.

 8 16 Q. How long have you had the title of chief

 8 17 of that program or head of that program?

 8 18 A. Since July of 2018.

8:19 - 13:8 Merkley, John 2-26-2020

 8 19 Q. Can you give us an overview of your

 8 20 military service leading up to July of 2018?

 8 21 A. Sure. I -- I started in the National

 9 1 Guard in 19 -- September 1991. I joined the Utah

 9 2 National Guard as a linguist. I went to basic

 9 3 training in October of '91 to December of '91 at

 9 4 Fort Leonard Wood, Missouri.

 9 5 I was a -- I went from there to the

 9 6 Defense Language Institute to study Russian, and I

 9 7 was at the Defense Language Institute for almost

 9 8 all of 1992, and then went to Fort Huachuca and was

 9 9 trained as an interrogator.

 9 10 I went off of active duty in March of '93

 9 11 and into the National Guard and stayed in the

 9 12 National Guard until June of 1998, when I graduated

 9 13 as an audiologist and left the state of Utah.

 9 14 I was in inactive -- the inactive ready

 9 15 reserve through June of 1999 and then commissioned

 9 16 as a First Lieutenant in the Army Reserves as an

 9 17 audiologist with the 7231st Mobilization Support

 9 18 Unit in Lubbock, Texas.

 9 19 I left that unit in March -- or February

 9 20 of 2000 and went in -- on active duty as an

 9 21 audiologist and then went to basic training as an

 10 1 audi- -- officer basic training in 2000, March of

 10 2 2000.

Re: [8:19-13:8]

Improper counter designation; 

FRE 402/403, 701/702; 802; 

improper bolstering; improper 

narrative. Plaintiffs MIL # 1, 2, 16, 

17

SUSTAINED

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Merkley, John 2-26-2020 3

 10 3 From there, I went to -- to duty stations

 10 4 at Fort Drum, New York. I was stationed at Fort

 10 5 Drum, New York from June or July, I don't remember

 10 6 exactly, of -- of 2000 through July of 2004 and

 10 7 then moved to Wurzburg, Germany from 2004 to 2006,

 10 8 when I deployed to Iraq.

 10 9 I was in Iraq -- well, on a deployment.

 10 10 I went with the 28th Combat Support Hospital, so we

 10 11 did some train-up. I left in August. We trained

 10 12 up, went to Kuwait in September of 2006.

 10 13 I went into Iraq in October 2006 and then

 10 14 returned from that deployment in November of 2007

 10 15 to Fort Bragg. I returned home on the 1st of

 10 16 December 2007 and then stayed in Wurzburg for three

 10 17 years, and then PCS'd to Landstuhl.

 10 18 I'm sorry, I'm not telling you my

 10 19 position. So, my position at Fort Drum was the

 10 20 chief of audiology and the hearing -- installation

 10 21 hearing conservation program manager. In Wurzburg,

 11 1 I had the same title. I was the chief of audiology

 11 2 and the hearing conservation program manager for

 11 3 all of the Bavaria region. So, the Wurzburg

 11 4 Hospital and all of the subordinate clinics to

 11 5 Wurzburg.

 11 6 Then as -- with the 28th CSH, I deployed

 11 7 as an audiologist, and in Iraq, I also served as

 11 8 the theatre consultant for audiology.

 11 9 Then PCS'd -- I came back to Germany,

 11 10 PCS'd to Landstuhl where I was assigned to the Army

 11 11 Public Health -- well, it was -- it was the Center

 11 12 for Health Promotion and Preventive Medicine at the

 11 13 time.

 11 14 Q. CHPPM?

 11 15 A. CHPPM. CHPPM Europe. They transitioned

 11 16 to the Army Public Health Command Region Europe

 11 17 while I was there. That was in 2008. So,

 11 18 2008/2009 is when -- when that transitioned.

 11 19 I left that position -- oh, while in

 11 20 Europe, I also served as the Europe audiology

 11 21 consultant, so that -- the European -- European

 12 1 Regional Medical Command audiology consultant.

 12 2 Then PCS'd from Germany in 200- -- August

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Merkley, John 2-26-2020 4

 12 3 2011 to Fort Carson, where I served as the chief

 12 4 of -- well, I'm sorry. I served as the

 12 5 installation hearing program manager and was

 12 6 assigned to the Department of Preventive Medicine.

 12 7 I also served as the western

 12 8 region or, I'm sorry, southern region audiology

 12 9 consultant until the regions changed and Fort

 12 10 Carson fell under the western -- I have to go back.

 12 11 Q. That's okay.

 12 12 A. But I was the audiology consultant for

 12 13 the region, --

 12 14 Q. Got it.

 12 15 A. -- whichever it was. Because it

 12 16 transitioned, and I became the central region

 12 17 audiology consultant. And then PCS'd from Fort

 12 18 Carson in January 2015 to the Defense Hearing

 12 19 Center of Excellence, where I was assigned as the

 12 20 Army liaison officer to the DoD Hearing Center of

 12 21 Excellence.

 13 1 Q. What year was that?

 13 2 A. That was in January 2015.

 13 3 Q. What did you do between 2015 when you

 13 4 took over as the chief of the Army --

 13 5 A. So --

 13 6 Q. -- hearing division?

 13 7 A. So, I left San Antonio in May of 2018 and

 13 8 PCS'd to Aberdeen Proving Grounds.

13:16 - 15:18 Merkley, John 2-26-2020

 13 16 So, were you the Army liaison officer at

 13 17 the Defense Center for Hearing Excellence up until

 13 18 you took over as the chief of the, what is now the

 13 19 Army Hearing Program?

 13 20 A. Yes.

 13 21 Q. And that was in July of 2018?

 14 1 A. Correct.

 14 2 Q. What responsibilities does the Army

 14 3 Hearing Program have?

 14 4 A. Well, the Army Hearing Program has

 14 5 responsibility for oversight of the -- of

 14 6 the -- the Army Hearing Program across the world.

 14 7 We have professionals that monitor the

 14 8 database for surveillance audiometry and report on

Re: [13:16-15:18]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; improper narrative; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 5 of 106
Merkley, John 2-26-2020 5

 14 9 the database report statistics from the -- you

 14 10 know, we -- we can find the number of individuals

 14 11 that were -- were required to receive a -- a

 14 12 monitoring audiogram, the number of individuals

 14 13 that received a monitoring audiogram, injury and

 14 14 illness rates, recordable injury and illness rates,

 14 15 follow-up compliance and the information like that.

 14 16 That's one area of what we do.

 14 17 We also have a studies and investigations

 14 18 group that was borne out of the Institute of

 14 19 Medicine report, and I believe it was the 2009 NDAA

 14 20 that looked at what we needed to do to improve

 14 21 hearing health across the Department of Defense.

 15 1 The Army stood up this studies group to look

 15 2 specifically at ways of improving hearing health.

 15 3 So, we -- we conduct studies and

 15 4 collaborate with other organizations, like the

 15 5 Defense Hearing Center of Excellence, to look at,

 15 6 you know, best practices and implementing best

 15 7 practices in hearing conservation.

 15 8 Q. Does the Army Hearing Program have a role

 15 9 in determining what type of hearing protection

 15 10 devices would be used by service members in the

 15 11 Army?

 15 12 A. They have a consultative role in that

 15 13 currently. I mean, I don't -- I don't make

 15 14 selections or I don't solicit hearing protection

 15 15 and make an up or down vote on what hearing

 15 16 protectors are used. That falls -- that

 15 17 responsibility falls to the Program Executive

 15 18 Office for soldiers --

17:8 - 19:5 Merkley, John 2-26-2020

 17 8 You mentioned that the Army Hearing

 17 9 Program had a consulting responsibility with

 17 10 respect to the selection of hearing protection

 17 11 devices in the Army. What is that consulting

 17 12 responsibility?

 17 13 MR. BUCHANAN: Objection to form.

 17 14 THE WITNESS: Okay. Now, this

 17 15 isn't -- it's not codified in any document that I'm

 17 16 aware of. We -- if, for example, the Program

 17 17 Executive Office for head protection is looking at

Re: [17:8-19:12]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; improper narrative; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 6 of 106
Merkley, John 2-26-2020 6

 17 18 an integrated eyewear hearing protection device and

 17 19 they reached out to us for our -- if -- I don't

 17 20 know if they wanted our endorsement of the hearing

 17 21 protector that is integrated into that device, they

 18 1 share lab results with us, and then we can review

 18 2 the lab results and make a -- a recommendation

 18 3 either for or against that hearing protector.

 18 4 Now, we also are working with the Program

 18 5 Executive Office to determine requirements for

 18 6 hearing protection devices with -- with regard to

 18 7 what -- what we want a hearing protector to do.

 18 8 Hearing protectors right now, the current

 18 9 requirement is to -- is that any hearing protector

 18 10 has to reduce noise exposure to below 85 dBA.

 18 11 Q. That's --

 18 12 A. That's the only -- it's steady-state

 18 13 noise.

 18 14 Q. Yeah.

 18 15 A. Or below 140 dB peak impulsive noise, and

 18 16 that's the only requirement. So, most hearing

 18 17 protectors are capable of -- of doing that.

 18 18 Q. Where is the Army Hearing Program

 18 19 physically located?

 18 20 A. Aberdeen Proving Grounds. The Edgewood

 18 21 area of Aberdeen Proving Grounds.

 19 1 Q. What is the Army Research Laboratory?

 19 2 A. The Army -- it's a -- a research

 19 3 laboratory located at Aberdeen Proving Grounds, not

 19 4 associated with the Army Public Health Center.

 19 5 Q. I have seen some testing reports of

19:8 - 19:12 Merkley, John 2-26-2020

 19 8 Q. Is there a piece of the Army Research

 19 9 Laboratory that tests hearing protection devices?

 19 10 A. Not currently that I'm aware of.

 19 11 Q. Okay. Was there historically?

 19 12 A. Historically, yes.

Re: [17:8-19:12]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; improper narrative; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17

SUSTAINED

20:1 - 20:19 Merkley, John 2-26-2020

 20 1 Q. Let's talk currently first, and then I'll

 20 2 go back in time.

 20 3 A. Okay. Currently, I believe USAARL is the

 20 4 only lab that is still capable of doing hearing

Re: [20:15-20:19]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 7 of 106
Merkley, John 2-26-2020 7

 20 5 protection testing.

 20 6 Q. And then what about in the 1995 to, say,

 20 7 2005 time period?

 20 8 A. Yeah, I -- I believe ARL and USAARL --

 20 9 Q. Okay.

 20 10 A. -- were the two Army facilities.

 20 11 Q. And ARL is also located at Aberdeen,

 20 12 correct?

 20 13 A. A -- ARL is located at Aberdeen North, so

 20 14 they're -- they're not on the Edgewood area.

 20 15 Q. Switching gears a little bit. Are

 20 16 hearing loss and tinnitus common injuries in the

 20 17 military?

 20 18 MR. BUCHANAN: Objection to form.

 20 19 THE WITNESS: Yes.

bolstering; conjecture; Plaintiffs 

MIL # 1, 2, 16, 17

24:17 - 25:21 Merkley, John 2-26-2020

 24 17 Q. Are Army service members able to choose

 24 18 what hearing protection device they wear while in

 24 19 service?

 24 20 A. Yes.

 24 21 Q. 6.6.7 says that preformed earplugs shall

 25 1 be fitted and issued only under the supervision of

 25 2 personnel who have been specifically trained to fit

 25 3 earplugs, did I read that right?

 25 4 A. Correct.

 25 5 Q. What are preformed earplugs?

 25 6 A. Preformed earplugs are ear -- earplugs

 25 7 that are -- you -- you don't form on yourself.

 25 8 They're not moldable. They -- they come premolded

 25 9 usually containing flanges. They can be single

 25 10 flanges up to -- currently there are hearing

 25 11 protectors that have four flanges.

 25 12 Q. Is -- are you familiar with the Combat

 25 13 Arms Version 2 Earplug?

 25 14 A. Yes.

 25 15 Q. Is that a preformed earplug?

 25 16 A. Yes.

 25 17 Q. And so, when the Combat Arms Version 2 is

 25 18 issued to service members, the DoD instruction

 25 19 requires that it would be fitted and issued only

 25 20 under the supervision of personnel who have been

 25 21 specifically trained to fit earplugs --

Re: [24:17-25:21]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; improper narrative; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 8 of 106
Merkley, John 2-26-2020 8

26:3 - 26:19 Merkley, John 2-26-2020

 26 3 Q. -- is that right?

 26 4 A. That's correct.

 26 5 Q. 6.6.9, going down, states that medically

 26 6 trained personnel must examine the fit and

 26 7 condition of preformed and custom earplugs at least

 26 8 annually, right?

 26 9 A. Yes.

 26 10 Q. So, under 6.6.9, anyone who had been

 26 11 issued the Combat Arms Version 2 should have been

 26 12 examined for fit at least annually?

 26 13 A. Correct.

 26 14 Q. And then 6.6.8 allows that if basically

 26 15 you couldn't be fit by the medically trained

 26 16 personnel with the preformed earplug, such as the

 26 17 Combat Arms, then they would move to a custom

 26 18 device in special circumstances; is that right?

 26 19 A. Correct.

Re: [26:3-26:19]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; foundation; scope; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17, 21. 

SUSTAINED

31:20 - 32:20 Merkley, John 2-26-2020

 31 20 Q. I noticed, if you go back to 6.1c on page

 31 21 5, there's a reference that an earplug carrying

 32 1 case must also be provided in addition to earplugs?

 32 2 A. Um-hum.

 32 3 Q. And then it has a single national stock

 32 4 number there?

 32 5 A. Correct.

 32 6 Q. Do you know what carrying case that's

 32 7 referring to?

 32 8 A. Yes.

 32 9 Q. At the time in 1998, was there just one

 32 10 carrying case that would be issued regardless of

 32 11 what type of preformed earplug you get?

 32 12 A. Yes.

 32 13 Q. And did the military have -- they had

 32 14 that carrying case as of at least December 1998

 32 15 already?

 32 16 A. Well, I -- they -- they had it in -- yes.

 32 17 I was issued one in the National Guard, so -- and

 32 18 that was prior to 1998.

 32 19 Q. How long had the military had that

 32 20 particular earplug carrying case?

Re: [31:20-32:18]

Improper counter designation; 

FRE 402/403, 701/702 improper

opinion testimony; 802; improper 

bolstering; foundation; scope; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17, 21. 

Re: [32:19-33:4]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; foundation; scope; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17, 21. 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 9 of 106
Merkley, John 2-26-2020 9

33:1 - 34:4 Merkley, John 2-26-2020

 33 1 THE WITNESS: I don't know.

 33 2 BY MR. WASDIN:

 33 3 Q. What year were you issued one?

 33 4 A. I was issued one in 1994.

 33 5 Q. Focusing on 6.3a, the requirement that

 33 6 medically trained personnel must fit and examine

 33 7 preformed earplugs at least annually to ensure

 33 8 proper fit and condition, can you tell us how, if

 33 9 you know at this time, medically trained personnel

 33 10 would have evaluated the fit of preformed earplugs

 33 11 for service members?

 33 12 A. For --

 33 13 MR. BUCHANAN: Objection to form and

 33 14 foundation.

 33 15 THE WITNESS: Okay. So, if it was -- if

 33 16 it was done correctly -- and I was fitted with

 33 17 preformed earplugs at basic training back in

 33 18 October of 1991. They were the triple-flanged,

 33 19 orange, regular hearing protectors, and the

 33 20 medically trained personnel would do a tug test and

 33 21 a visual inspection of the ear to see, you know,

 34 1 were -- were all of the flanges in the ear and then

 34 2 tugged -- well, they actually had us tug to make

 34 3 sure that we felt the suction and that the earplug

 34 4 didn't just come out of the ear.

Re: [32:19-33:4]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; foundation; scope; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17, 21. 

Re: [33:5-34:4]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; foundation; scope; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17, 21. 

SUSTAINED

34:9 - 34:12 Merkley, John 2-26-2020

 34 9 Q. Okay.

 34 10 A. We trained all of our technicians on the

 34 11 same fitting technique and how to identify a -- a

 34 12 good or a poor fit.

34:17 - 35:4 Merkley, John 2-26-2020

 34 17 Q. Okay.

 34 18 A. The -- the service member would insert

 34 19 the earplug, and then the -- the -- the service

 34 20 member would walk by the technician, and the

 34 21 technician would do a check.

 35 1 Q. Visual and tug test?

 35 2 A. Visual and tug test.

 35 3 MR. BUCHANAN: Objection to form.

 35 4 THE WITNESS: For both ears.

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Merkley, John 2-26-2020 10

36:17 - 37:11 Merkley, John 2-26-2020

 36 17 Q. What is situation awareness?

 36 18 A. Well, just the -- the awareness of your

 36 19 surroundings.

 36 20 Q. Is situation awareness important in the

 36 21 military?

 37 1 A. Yes.

 37 2 Q. Why?

 37 3 A. Because in a combat zone, a combat

 37 4 environment, you need to be aware of what's

 37 5 happening around you.

 37 6 Q. Is situation awareness a dueling priority

 37 7 with hearing protection?

 37 8 A. Absolutely.

 37 9 Q. Why?

 37 10 A. Because any time you plug the ears, it

 37 11 affects your ability to hear and localize sounds.

40:14 - 40:21 Merkley, John 2-26-2020

 40 14 Q. So, as of December 1998, the Army

 40 15 requirement was that when in combat, service

 40 16 members should not, and not there is all

 40 17 capitalized, wear hearing protectors when they

 40 18 impair necessary hearing, including with dismounted

 40 19 infantry op- -- operations, right?

 40 20 MR. BUCHANAN: Objection to form.

 40 21 THE WITNESS: That's what it says.

Re: [40:14-40:21]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; foundation; scope; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17, 21. 

SUSTAINED

51:9 - 55:1 Merkley, John 2-26-2020

 51 9 Q. Before I ask you this, you said earlier

 51 10 that you heard of the Dan Johnson study. Can you

 51 11 just sort of give us an overview of what you know

 51 12 about it?

 51 13 A. I've just heard -- this is the

 51 14 Albuquerque --

 51 15 Q. Yeah.

 51 16 A. -- study. I've -- I've just heard -- I

 51 17 work with the -- the acoustic engineers that refer

 51 18 back to this study based on their work for

 51 19 the -- on AHAAH model for determining health hazard

 51 20 assessment and risks, and -- and that's really what

 51 21 I know about it.

 52 1 Q. Okay.

 52 2 A. It was a -- it was a blast study on human

Re: [51:9-55:1]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; improper 

bolstering; foundation; scope; 

conjecture; Plaintiffs MIL # 1, 2, 

16, 17, 21. 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 11 of 106
Merkley, John 2-26-2020 11

 52 3 subjects.

 52 4 Q. Impulse noise study?

 52 5 A. Impulse noise study, yeah.

 52 6 Q. Using nonlinear earplugs?

 52 7 MR. BUCHANAN: Objection to form and

 52 8 foundation.

 52 9 THE WITNESS: Well, I -- I didn't -- I

 52 10 don't -- I just knew it was a blast study.

 52 11 BY MR. WASDIN:

 52 12 Q. On page 4 -- IV, page 5, there's a Figure

 52 13 IV-2 that compares the Rucker Plug to French No. 1

 52 14 Plug with respect to percent of unacceptable TTS

 52 15 versus peek level, do you see that?

 52 16 A. Yes.

 52 17 Q. What does TTS mean?

 52 18 A. Temporary threshold shift.

 52 19 Q. So, that means essentially that someone's

 52 20 hearing shifts temporarily and responds to an

 52 21 exposure to noise?

 53 1 MR. BUCHANAN: Objection to form.

 53 2 THE WITNESS: Yes.

 53 3 BY MR. WASDIN:

 53 4 Q. And then there's data in the -- the chart

 53 5 above that plots out how the French No. 1 and the

 53 6 Rucker Plug performed as a measure of percent of

 53 7 unacceptable TTS?

 53 8 A. Yes.

 53 9 Q. And it looks like that data tracks their

 53 10 performance up through 193 decibels at various

 53 11 numbers of shots fired?

 53 12 MR. BUCHANAN: Objection to form and

 53 13 foundation. Leading.

 53 14 THE WITNESS: Yes.

 53 15 BY MR. WASDIN:

 53 16 Q. And if you track, you can see on the

 53 17 right that the French No. 1 Plug, the plug with the

 53 18 UltraFit and the ISL filter, is tracked on two

 53 19 metrics using the solid line; once at six shots

 53 20 fired and then once at 100 shots fired, right?

 53 21 A. Correct.

 54 1 Q. And at six shots fired at 190 decibels,

 54 2 the French No. 1 Plug showed ten percent of

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Merkley, John 2-26-2020 12

 54 3 unacceptable TTS?

 54 4 MR. BUCHANAN: Objection to form.

 54 5 THE WITNESS: If that is at the ten

 54 6 percent mark, and it appears to be close to ten

 54 7 percent, then, yes.

 54 8 BY MR. WASDIN:

 54 9 Q. Okay. So, 90 percent of the folks who

 54 10 were exposed to 190 dB using the French No. 1 Plug

 54 11 for six shots did not have unacceptable TTS?

 54 12 MR. BUCHANAN: Objection to form.

 54 13 MAJOR EVANS: Don't answer that, sir.

 54 14 BY MR. WASDIN:

 54 15 Q. And then the line above that tracks the

 54 16 performance of the French No. 1 Plug at 100 shots,

 54 17 right?

 54 18 MR. BUCHANAN: Objection to form.

 54 19 THE WITNESS: The solid line above that?

 54 20 BY MR. WASDIN:

 54 21 Q. Yes.

 55 1 A. Yes.

75:13 - 76:4 Merkley, John 2-26-2020

 75 13 Q. LTC Merkley, what we have marked as

 75 14 Exhibit 6 is a series of email communications that

 75 15 were produced to us by the -- the military in this

 75 16 case, and I believe they're sort of out of order

 75 17 and just kind of --

 75 18 A. Um-hum.

 75 19 Q. -- they don't track a -- a single

 75 20 conversation over a linear period of time, but I'll

 75 21 try to direct you around as best I can.

 76 1 First, I should ask, did you -- I think

 76 2 you may have done some work to kind of pull

 76 3 together testing reports --

 76 4 A. Yes.

Re: [75:13-76:4]

Improper counter designation; 

FRE 402/403, 701/702 improper 

opinion testimony; 802; 805; 

improper bolstering; foundation; 

scope; conjecture; Plaintiffs MIL # 

1, 2, 16, 17, 21. 

SUSTAINED

76:12 - 77:1 Merkley, John 2-26-2020

 76 12 Q. Okay. If you turn to the second page of

 76 13 the Exhibit 6 and go to the bottom email, there's

 76 14 an email from Doug Ohlin to a few other people

 76 15 dated April 13th, 1999, do you see that?

 76 16 A. Yes.

 76 17 Q. Who is Wayne -- the recipients are Wayne

 76 18 Loyborg, David Chandler, and then I'm -- I'm not

Re: [76:12-77:1]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 611; 701/702 

improper opinion testimony; 802; 

805. Plaintiffs MIL #1, 2, 15,16.

SUSTAINED

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Merkley, John 2-26-2020 13

 76 19 sure, there's just an email address there, but who

 76 20 is Wayne Loyborg?

 76 21 A. I've -- I've heard his name. I believe

 77 1 he's an audiologist.

77:4 - 77:6 Merkley, John 2-26-2020

 77 4 Q. And who is David Chandler?

 77 5 A. David Chandler was an Army active duty

 77 6 audiologist.

Re: [77:4-77:6]

Improper counter; FRE 402/403; 

foundation; speculation; 602; 611; 

701/702 improper opinion 

testimony; 802; 805. Plaintiffs 

MIL #1, 2, 15,16.

SUSTAINED

77:10 - 78:9 Merkley, John 2-26-2020

 77 10 Q. And then below that, there's Martin

 77 11 Robinette?

 77 12 A. Right.

 77 13 Q. Who's Martin Robinette?

 77 14 A. He is an active duty Army audiologist.

 77 15 Q. Okay. In April of 1999, Doug Ohlin

 77 16 writes to that group and says, the production

 77 17 samples Aearo sent me were at least a quarter of an

 77 18 inch too long. I took the liberty in cutting down

 77 19 the samples I'm sending you under a separate cover.

 77 20 The production samples didn't fit in the standard

 77 21 earplug hearing case, didn't take advantage of a

 78 1 design that could minimize wind noise and, most

 78 2 importantly, were hit by the Kelvar helmet chin

 78 3 strap when it was fastened, did I read that right?

 78 4 A. Yes.

 78 5 Q. If you turn back a page to the front,

 78 6 there's an email from Brian Myers at a Compuserve

 78 7 email address to Doug Ohlin dated April 8th, 1999,

 78 8 do you see that?

 78 9 A. Um-hum.

Re: [77:10-78:9]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 611; 701/702 

improper opinion testimony; 802; 

805. Plaintiffs MIL #1, 2, 15,16.

SUSTAINED

78:12 - 79:15 Merkley, John 2-26-2020

 78 12 Q. Okay. The email says, Doug, and then the

 78 13 second paragraph says, I spoke with Dick Knauer who

 78 14 believes that we can probably shorten the plug by

 78 15 the one-quarter inch required to fit your current

 78 16 container. The designer will look at this when he

 78 17 gets back from vacation on the 19th. It may help

 78 18 to expedite the redesign if we could get a storage

 78 19 container from you, and then he gives the contact

 78 20 information for Dick Knauer, do you see that?

Re: [78:12-79:6]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 802; 

805. Plaintiffs MIL #1, 2, 15,16.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 14 of 106
Merkley, John 2-26-2020 14

 78 21 A. Um-hum.

 79 1 Q. Prior to today, had you ever heard that

 79 2 the original design of the Combat Arms Version 2

 79 3 was too long to fit in the military carrying case?

 79 4 MR. BUCHANAN: Objection to form.

 79 5 THE WITNESS: I -- I don't remember.

 79 6 If -- if I was told that, I don't recall.

 79 7 BY MR. WASDIN:

 79 8 Q. Okay. Prior to today, did you know that

 79 9 the Combat Arms Version 2 was shortened a quarter

 79 10 of an inch?

 79 11 A. No.

 79 12 Q. Okay. You had no personal involvement in

 79 13 any discussions regarding whether to shorten the

 79 14 Combat Arms Version 2?

 79 15 A. No.

100:14 - 101:7 Merkley, John 2-26-2020

 100 14 Q. Who is Elliott Berger?

 100 15 A. Elliott Berger is -- I think he is the

 100 16 principal engineer at 3M at their test lab, hearing

 100 17 protection testing lab.

 100 18 Q. Do you know Elliott?

 100 19 A. I do.

 100 20 Q. How long have you known Mr. Berger?

 100 21 A. I have -- well, I have known him -- I've

 101 1 known of him for, I don't know, 20 years or so.

 101 2 I've had more personal interactions with him in the

 101 3 last eight years just as a member of the -- the

 101 4 Council for Accreditation in Occupational Hearing

 101 5 Conservation and his work in different chapters and

 101 6 regulations that go into the hearing conservation

 101 7 manual, his work on the ANSI working group.

Re: [100:14-101:7]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 611; 701/702 

improper opinion testimony; 802; 

805. Plaintiffs MIL #1, 2, 15,16.

SUSTAINED

102:5 - 102:21 Merkley, John 2-26-2020

 102 5 Q. I'll try -- let me ask the question again

 102 6 just so we get a Q and A. But what are some of

 102 7 Mr. Berger's contributions to the national

 102 8 hearing -- conservation hearing that you're aware

 102 9 of?

 102 10 MR. BUCHANAN: I have the same objection.

 102 11 Form and foundation.

 102 12 THE WITNESS: Well, he's a well-known

 102 13 figure in hearing conservation. He is the editor

Re: [102:5-104:7]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 611; 701/702 

improper opinion testimony; 802; 

805. Improper witness bolstering. 

Plaintiffs MIL #1, 2, 12, 13, 15,16.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 15 of 106
Merkley, John 2-26-2020 15

 102 14 of the noise manual. He's contributed to multiple

 102 15 chapters on hearing conservation in the United

 102 16 States and has been recognized at -- at the

 102 17 National Hearing Conservation Association as such.

 102 18 BY MR. WASDIN:

 102 19 Q. Has he won awards for that?

 102 20 A. He has.

 102 21 Q. What type of awards?

103:3 - 104:7 Merkley, John 2-26-2020

 103 3 THE WITNESS: Yeah, I -- I don't know for

 103 4 sure what those awards -- I think -- well,

 103 5 I'd -- I'd be trying to remember, and I don't -- I

 103 6 don't recall.

 103 7 BY MR. WASDIN:

 103 8 Q. Do you know whether Mr. Berger has ever

 103 9 worked with members of the military to help the

 103 10 military advance its hearing conservation mission?

 103 11 A. I have seen documents between he and Doug

 103 12 Ohlin, but that's the extent of what I've -- what I

 103 13 know about with regard to hearing pro- -- his

 103 14 involvement in hearing protection in the military.

 103 15 Q. Just based on the documents that you've

 103 16 seen, was he working with Doug Ohlin on a

 103 17 particular project?

 103 18 A. I -- yes. I believe he was working

 103 19 on -- with Doug Ohlin on this Combat Arms Earplug

 103 20 project.

 103 21 Q. Okay. Given what you know about

 104 1 Mr. Berger and the contributions he's made to

 104 2 national hearing conservation, does it surprise you

 104 3 that Doug Ohlin would work with him to develop a

 104 4 product for the military?

 104 5 MR. BUCHANAN: Objection to form and

 104 6 foundation.

 104 7 THE WITNESS: No.

Re: [102:5-104:7]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 611; 701/702 

improper opinion testimony; 802; 

805. Improper witness bolstering. 

Plaintiffs MIL #1, 2, 12, 13, 15,16.

SUSTAINED

115:12 - 117:13 Merkley, John 2-26-2020

 115 12 Q. I know you have never seen this before.

 115 13 This was a document that was just produced in this

 115 14 litigation by a particular Plaintiff, and I wanted

 115 15 to ask you, it's just questions about training on

 115 16 the Combat Arms Earplug in here, and if you go to

 115 17 question 10, it's -- the question is, describe how

Re: [115:5-117:13]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony;

scope; 802; 805. Plaintiffs MIL 

#1, 2, 15,16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 16 of 106
Merkley, John 2-26-2020 16

 115 18 you inserted each end of the CAEv2 into your ears,

 115 19 and there's a general description of the insertion

 115 20 technique that ends with, was trained to fold back

 115 21 the opposite end flanges for insertion, do you see

 116 1 that?

 116 2 A. Um-hum.

 116 3 Q. And then if you flip the page to page 4,

 116 4 there's a section for Training and Instructions,

 116 5 and it says, describe any instruction or training

 116 6 you were provided on how to use the Combat Arms

 116 7 Earplug, including, but not limited to, any written

 116 8 or oral instructions and in-person training, do you

 116 9 see that question?

 116 10 A. Um-hum.

 116 11 Q. And the answer provided is, I attended

 116 12 Hearing Conservation Program training in 2005 in

 116 13 Korea. During the duration of training, my

 116 14 classmates and I were introduced to the Combat Arms

 116 15 Earplugs. From that point on, I would use -- would

 116 16 issue CAEv2 as patients completed their hearing

 116 17 exams, do you see that?

 116 18 A. Um-hum.

 116 19 Q. And then the next question is 14. Were

 116 20 you instructed or trained to roll or fold back any

 116 21 flanges on the CAEv2 for proper insertion? Answer,

 117 1 Yes. Do you see that?

 117 2 A. Yes.

 117 3 Q. Okay. So, all I wanted to ask was, this

 117 4 reference to Hearing Conservation Program training

 117 5 in 2005 in Korea, does that mean anything to you?

 117 6 Do -- do you have an understanding of what that

 117 7 would be?

 117 8 MR. BUCHANAN: Objection. Foundation and

 117 9 form.

 117 10 THE WITNESS: I -- it could be a -- a

 117 11 couple of different training events, so I don't

 117 12 know exactly what -- what this training is

 117 13 referring to.

118:14 - 119:6 Merkley, John 2-26-2020

 118 14 BY MR. WASDIN:

 118 15 Q. This training we've been talking about

 118 16 on -- that was provided by technicians to

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 17 of 106
Merkley, John 2-26-2020 17

 118 17 individual service members, I think you said

 118 18 earlier that you received that fit from a

 118 19 technician and any instruction on how to use your

 118 20 earplug during basic training, am I right?

 118 21 A. I was fitted --

 119 1 Q. Okay.

 119 2 A. -- with the hearing protection. I don't

 119 3 recall getting specific training on how to -- how

 119 4 to fit it, other than they -- they gave us

 119 5 instruction on, you know, how to put it in your ear

 119 6 and then check the fit.

119:19 - 122:21 Merkley, John 2-26-2020

 119 19 Q. Okay. Well, then fast forwarding to the

 119 20 time period when you are in charge of audiology at

 119 21 Fort Drum. When in a service member's career, I

 120 1 guess, would they receive a piece of hearing

 120 2 protection and then be fit with it?

 120 3 A. We fit at Fort Drum any individuals when

 120 4 they were coming to the installation, so

 120 5 we -- we provided hearing protection fit or hearing

 120 6 health education and hearing protection fitting

 120 7 at in-processing to the installation.

 120 8 Q. I just don't know sort of how this works

 120 9 in the Army, but have they already completed basic

 120 10 training by the time they arrive?

 120 11 A. Yes.

 120 12 Q. Okay. And is -- when you say when they

 120 13 arrive at the facility, is that sort of like the

 120 14 first stop after basic training?

 120 15 A. No. It depends. It -- it could be right

 120 16 after basic training. It may be that they're

 120 17 PCS'ing.

 120 18 Q. Okay.

 120 19 A. Having -- changing duty stations and

 120 20 moving from one installation to Fort Drum. Then

 120 21 when they get to that installation, there's an

 121 1 in-processing part, and part of that in-processing

 121 2 includes a medical in-processing, and they would

 121 3 receive a hearing test, get fitted with hearing

 121 4 protection and a small class on hearing

 121 5 conservation.

 121 6 Q. Would the fitting with hearing protection

Re: [119:19-122:21]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; conjecture; 602; 

701/702 improper opinion 

testimony; improper bolstering; 

scope; 802; 805. Plaintiffs MIL 

#1, 2, 15,16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 18 of 106
Merkley, John 2-26-2020 18

 121 7 as part of the intake process be done by the

 121 8 technicians we talked about earlier?

 121 9 A. Either the technicians or the audiologist

 121 10 on site, yes.

 121 11 Q. Okay.

 121 12 MAJOR EVANS: And, sir, can you just

 121 13 clarify the ranks, the rank level of soldiers that

 121 14 go through in-processing?

 121 15 THE WITNESS: Yeah. The rank -- I mean,

 121 16 they can be private, E1 to Colonel.

 121 17 BY MR. WASDIN:

 121 18 Q. Okay. So, some are brand new in the

 121 19 military; some may have been there for a

 121 20 while --

 121 21 A. Right.

 122 1 Q. -- but whenever you get a transition of

 122 2 your class or duty station -- regardless of how

 122 3 long you have been in the Army, when you show up at

 122 4 Fort Drum, while you were there, one of the first

 122 5 things that happened was the medical exam that

 122 6 included fitting hearing protection?

 122 7 A. Correct.

 122 8 Q. And was that done for all service

 122 9 members?

 122 10 A. Everybody that came through

 122 11 in-processing.

 122 12 Q. Was there a training component during

 122 13 that intake on how to fit themselves with earplugs

 122 14 going forward?

 122 15 A. Yes.

 122 16 Q. And would -- was it your expectation that

 122 17 the audiologist or the technicians would have given

 122 18 the service members the same fitting tips that you

 122 19 had provided them?

 122 20 A. Right. Yes.

 122 21 Q. And that would include that if they

123:4 - 123:12 Merkley, John 2-26-2020

 123 4 THE WITNESS: If -- if they were fitted

 123 5 with a Combat Arms Earplug. We did not routinely

 123 6 fit the Combat Arms Earplug for in-processing.

 123 7 BY MR. WASDIN:

 123 8 Q. Got it. If their earplug was the Combat

Re: [123:2-123:21]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 19 of 106
Merkley, John 2-26-2020 19

 123 9 Arms Version 2, their training would have included

 123 10 the option to fold back the flanges as needed to

 123 11 get a good fit?

 123 12 A. Yes.

scope; 802; 805. Plaintiffs MIL 

#1, 2, 15,16, 17, 21.

123:16 - 123:21 Merkley, John 2-26-2020

 123 16 Q. Looking at the wallet card, which was

 123 17 marked as Exhibit 9, the second bullet at the

 123 18 bottom mentions the option to fold back the flanges

 123 19 on the plug, and then there's an image of it,

 123 20 right?

 123 21 A. Correct.

Re: [123:2-123:21]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802; 805. Plaintiffs MIL 

#1, 2, 15,16, 17, 21.

SUSTAINED

125:1 - 125:18 Merkley, John 2-26-2020

 125 1 Q. Yeah.

 125 2 A. Yeah.

 125 3 Q. Do you know if the military did its own

 125 4 analysis of what size ear canals were likely to

 125 5 benefit from a fold of the flange?

 125 6 A. I'm not -- not that I recall.

 125 7 Q. The military drafted the wallet card

 125 8 though, right?

 125 9 A. Yes.

 125 10 MR. BUCHANAN: Objection to form.

 125 11 BY MR. WASDIN:

 125 12 Q. Other than -- did the military distribute

 125 13 this wallet card to individual service members?

 125 14 MAJOR EVANS: And can we just clarify

 125 15 real quick, this is the Army's wallet card,

 125 16 correct? Not the --

 125 17 THE WITNESS: It is the -- it is the

 125 18 Army's wallet card, yeah.

Re: [125:1-125:18]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702

improper opinion testimony; 802. 

Plaintiffs MIL #1, 2, 15,16, 17, 21.

SUSTAINED

128:17 - 129:10 Merkley, John 2-26-2020

 128 17 Q. When you were responsible for training

 128 18 technicians and hearing conservation officers on

 128 19 how to fit the Combat Arms Version 2, you weren't

 128 20 relying on any Aearo or 3M instructions; is that

 128 21 fair?

 129 1 MR. BUCHANAN: Objection to form.

 129 2 THE WITNESS: Yes.

 129 3 BY MR. WASDIN:

 129 4 Q. Do you know whether the Army ever used

 129 5 any instructions or training materials provided by

 129 6 Aearo or 3M to train soldiers on how to use the

Re: [128:17-129:19]

Plt Objection - improper counter 

designation per PTO 64

Re: [128:17-

129:10]

Plt Objection -

improper counter 

designation per 

PTO 64

SUSTAINED

Re: [128:17-129:13]

foundation; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 20 of 106
Merkley, John 2-26-2020 20

 129 7 Combat Arms Version 2?

 129 8 A. I -- I don't know.

 129 9 Q. You've never seen it?

 129 10 A. I -- I haven't seen it, no.

129:11 - 129:13 Merkley, John 2-26-2020

 129 11 Q. Okay. And, certainly, you wouldn't use

 129 12 any when you were training folks?

 129 13 A. I -- well, I didn't -- I didn't use any.

Re: [128:17-129:19]

Plt Objection - improper counter 

designation per PTO 64

Re: [128:17-

129:10]

Plt Objection -

improper counter 

designation per 

PTO 64

SUSTAINED

Re: [128:17-129:13]

foundation; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 21.

SUSTAINED

151:5 - 151:21 Merkley, John 2-26-2020

 151 5 Do you know who authored the Just the Facts

 151 6 document on the Combat Arms Version 2?

 151 7 A. The -- I -- I don't know who the author

 151 8 was. It was put out by the Army Public Health

 151 9 Center, the Army Hearing Program or the Army

 151 10 Hearing Conservation Program, so it was Doug Ohlin

 151 11 and his staff.

 151 12 Q. If you go down to the column on the left,

 151 13 the bottom left of the first page title -- titled,

 151 14 Protection Available, --

 151 15 A. Um-hum.

 151 16 Q. -- about midway through that paragraph it

 151 17 says, the nonlinearity begins at about 110 dBP and

 151 18 increases with increasing peak pressure level. At

 151 19 190 dBP, there's an overall peak reduction of 25

 151 20 dB, do you see that?

 151 21 A. Yes.

Re: [151:5-151:21]

Plt Objection - improper counter 

designation per PTO 64; 602

Re: [151:5-

151:21]

Plt Objection -

improper counter 

designation per 

PTO 64; 602

SUSTAINED

Re: [151:5-151:21]

FRE 402/403; foundation; 

speculation; 701/702 improper 

opinion testimony; scope; 802; 

805. Plaintiffs MIL #1, 2, 15,16, 

17, 21.

SUSTAINED

154:6 - 154:15 Merkley, John 2-26-2020

 154 6 Q. And then if you go on, that same sentence

 154 7 in the Just the Facts says, testing at a U.S.

 154 8 military facility found this nonlinear earplug

 154 9 protective up to 190 dB peak, do you see that?

 154 10 A. Yes.

 154 11 Q. And then if you flip the page, you can

 154 12 see that the citation there, the first one is to

 154 13 that Dan Johnson study that we looked at a long

 154 14 time ago?

 154 15 A. Right.

Re: [154:6-154:15]

Plt Objection - improper counter 

designation per PTO 64; 602; 802

Re: [154:6-

154:15]

Plt Objection -

improper counter 

designation per 

PTO 64; 602; 

802

SUSTAINED

Re: [154:6-154:15]

FRE 402/403; foundation; 

speculation; 701/702 improper 

opinion testimony; scope; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 21 of 106
Merkley, John 2-26-2020 21

155:3 - 156:3 Merkley, John 2-26-2020

 155 3 Q. What I wanted to ask you about was, this

 155 4 statement that testing at a U.S. military facility

 155 5 found this nonlinear earplug protective up to 190

 155 6 dB peak, that's a statement that's included in the

 155 7 Army's Just the Facts document, right?

 155 8 MR. BUCHANAN: Objection to form.

 155 9 THE WITNESS: Yes.

 155 10 BY MR. WASDIN:

 155 11 Q. Yeah. And it's -- the source of that

 155 12 representation is the Dan Johnson study that he did

 155 13 for the Army in 1995?

 155 14 MR. BUCHANAN: Objection to the form.

 155 15 BY MR. WASDIN:

 155 16 Q. Or '96?

 155 17 A. It appears to be, yes.

 155 18 Q. And so, this is an Army interpretation of

 155 19 an Army study that the testing at a U.S. military

 155 20 facility found this nonlinear earplug protective up

 155 21 to 190 dB peak?

 156 1 MR. BUCHANAN: Objection to form.

 156 2 Argumentative. Foundation.

 156 3 THE WITNESS: Yes.

Re: [155:3-156:3]

Plt Objection - improper counter 

designation per PTO 64; 602; 611

Re: [155:3-

156:3]

Plt Objection -

improper counter 

designation per 

PTO 64; 602; 

611

SUSTAINED

Re: [155:3-156:3]

FRE 402/403; foundation; 

speculation; 701/702 improper 

opinion testimony; scope; 802; 

805. Plaintiffs MIL #1, 2, 15,16, 

17, 21.

SUSTAINED

164:3 - 164:12 Merkley, John 2-26-2020

 164 3 Q. Do you know when a hearing

 164 4 protector -- protection device is labeled for

 164 5 civilian use, do they use the Method A standard to

 164 6 do that?

 164 7 A. Well, the -- the noise reduction rating

 164 8 label on a hearing protector is not measured to

 164 9 S12.6-1997.

 164 10 Q. It's measured to the 1974 standard,

 164 11 right?

 164 12 A. Correct.

164:20 - 165:14 Merkley, John 2-26-2020

 164 20 Q. Have you ever heard the term experimenter

 164 21 fit?

 165 1 A. Yes.

 165 2 Q. What does that mean?

 165 3 A. That -- experimenter fit means that the

 165 4 person that's conducting the experiment fits the

 165 5 hearing protector on the test subject.

Re: [164:20-165:14]

Plt Objection - improper counter 

designation per PTO 64; 402

Re: [164:20-

165:14]

Plt Objection -

improper counter 

designation per 

PTO 64; 402

SUSTAINED

Re: [164:20-165:14]

FRE 402/403; foundation; 

speculation; 701/702 improper 

opinion testimony; scope; 802. 

Plaintiffs MIL #1, 2, 15,16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 22 of 106
Merkley, John 2-26-2020 22

 165 6 Q. And have you heard user fit?

 165 7 A. Yes.

 165 8 Q. What does that mean?

 165 9 A. That means the user is the one that fits

 165 10 the hearing protector in the -- the ear prior to

 165 11 the test.

 165 12 Q. Do you know if the 74 standard is

 165 13 experimenter fitter versus user fit?

 165 14 A. No. It's experimenter fit.

197:1 - 197:11 Merkley, John 2-26-2020

 197 1 Q. Okay. Have you ever personally used the

 197 2 Combat Arms Version 2?

 197 3 A. Yes.

 197 4 Q. Did it work for you?

 197 5 A. Yes.

 197 6 Q. Did you need to fold the flanges back to

 197 7 get a good fit?

 197 8 A. I didn't.

 197 9 Q. So, you wore it without the flanges

 197 10 folded back, and it worked?

 197 11 A. Yes.

Re: [197:4-197:11]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

improper bolstering; scope; 802; 

805. Plaintiffs MIL #1, 2, 12, 13, 

15,16, 17, 18, 21.

SUSTAINED

197:17 - 198:6 Merkley, John 2-26-2020

 197 17 Q. How often did you wear it in service?

 197 18 A. As -- as long as I had it.

 197 19 Q. What time period did you have it?

 197 20 A. So, I had that earplug -- well, I -- I

 197 21 got my first set in -- right around 2000 when they

 198 1 were just starting to come out in the military.

 198 2 It was at the -- I believe the MASC, the

 198 3 military audiology short course, so it may have

 198 4 been 2001, because I -- I don't remember if I went

 198 5 in 2000. In 2001 definitely, and then up until

 198 6 the -- the new version came out --

Re: [197:17-198:17]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

improper bolstering; scope. 

Plaintiffs MIL #1, 2, 15,16, 17, 18.

SUSTAINED

198:9 - 198:15 Merkley, John 2-26-2020

 198 9 Q. Do you remember what year you

 198 10 transitioned from the dual-ended to the

 198 11 single-ended version?

 198 12 A. In 2007.

 198 13 Q. So, you wore the Version 2, the

 198 14 dual-ended version, during your deployment in Iraq,

 198 15 right?

Re: [197:17-198:17]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

improper bolstering; scope.

Plaintiffs MIL #1, 2, 15,16, 17, 18.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 23 of 106
Merkley, John 2-26-2020 23

198:17 - 198:17 Merkley, John 2-26-2020

 198 17 THE WITNESS: Yes.

Re: [197:17-198:17]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

improper bolstering; scope. 

Plaintiffs MIL #1, 2, 15,16, 17, 18.

SUSTAINED

199:1 - 199:20 Merkley, John 2-26-2020

 199 1 Q. How frequently --

 199 2 A. No. I -- I -- I'm sorry, how frequently?

 199 3 Q. Sorry. I interrupted you there. Go

 199 4 ahead.

 199 5 A. I was going to say, I -- I used the

 199 6 quad-flange earplug probably more often than

 199 7 the -- the Combat Arms Earplug, but if on a range,

 199 8 I would wear the Combat Arms Earplug.

 199 9 Q. You fired weapons with it in?

 199 10 A. Yes.

 199 11 Q. What was the loudest weapon you can

 199 12 remember being around while wearing the Combat Arms

 199 13 Version 2?

 199 14 A. Oh, an M4 -- an M16.

 199 15 Q. A rifle basically?

 199 16 A. Yeah, a rifle.

 199 17 MR. BUCHANAN: I'm sorry, was that both

 199 18 of those, or just an M16?

 199 19 THE WITNESS: I -- M16. I -- I fired the

 199 20 M16. I haven't fired an M4.

Re: [199:1-199:20]

Improper counter desigation; FRE 

402/403; 701/702 improper 

opinion testimony; improper 

bolstering; scope; 802. Plaintiffs 

MIL #1, 15,16, 17, 18, 21.

SUSTAINED

225:21 - 227:14 Merkley, John 2-26-2020

 225 21 Q. LTC Merkley, I just have a few more

 226 1 questions before we break for lunch, the first of

 226 2 which relates to your own use of the Combat Arms

 226 3 Earplug Version 2.

 226 4 A. Okay.

 226 5 Q. I think you told me that when you used

 226 6 the Combat Arms Version 2, you did not need to roll

 226 7 back the flanges in order to achieve a proper fit?

 226 8 MR. BUCHANAN: Objection to form.

 226 9 THE WITNESS: Correct.

 226 10 BY MR. WASDIN:

 226 11 Q. When you used the Combat Arms Version 2,

 226 12 were you able to achieve a good fit?

Re: [225:21-227:14]

Improper counter designation; 

FRE 402/403; foundation; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; improper bolstering; 

scope; 802; 805. Plaintiffs MIL 

#1, 2, 15,16, 17, 18, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 24 of 106
Merkley, John 2-26-2020 24

 226 13 MR. BUCHANAN: Objection to form.

 226 14 THE WITNESS: Yes.

 226 15 BY MR. WASDIN:

 226 16 Q. And during the course of whatever time

 226 17 you used them, were you able to keep that fit with

 226 18 the Combat Arms Version 2?

 226 19 MR. BUCHANAN: Objection to form.

 226 20 THE WITNESS: Yes.

 226 21 BY MR. WASDIN:

 227 1 Q. It didn't wiggle out of your ear or

 227 2 something?

 227 3 MR. BUCHANAN: Objection to form.

 227 4 THE WITNESS: Well, if it wiggled out, I

 227 5 knew it, and I could put it back in, but that's

 227 6 common with -- with all premolded earplugs.

 227 7 BY MR. WASDIN:

 227 8 Q. That's -- the idea that a premolded

 227 9 earplug, you know, may lose its seal is reported in

 227 10 the academic literature in hearing conservation,

 227 11 right?

 227 12 MR. BUCHANAN: Objection. Foundation and

 227 13 form.

 227 14 THE WITNESS: Yes.

228:1 - 228:21 Merkley, John 2-26-2020

 228 1 Q. You were aware when you were a military

 228 2 audiologist or an Army audiologist that preformed

 228 3 earplugs of any variety could loosen in a wearer's

 228 4 ear, right?

 228 5 MR. BUCHANAN: Objection to the

 228 6 leadingness.

 228 7 THE WITNESS: Yes.

 228 8 BY MR. WASDIN:

 228 9 Q. And on occasions when a preformed earplug

 228 10 does lose its seal, you found that to be

 228 11 perceptible because you could hear ambient noise

 228 12 louder than you did when you had a seal, right?

 228 13 MR. BUCHANAN: Objection to form.

 228 14 THE WITNESS: Yes.

 228 15 BY MR. WASDIN:

 228 16 Q. Did you have any problem properly

 228 17 inserting the CAEv2 into your ear when you used it?

 228 18 MR. BUCHANAN: Objection to form to the

Re: [228:1-228:21]

Improper counter designation; 

FRE 402/403; foundation; 701/702 

improper opinion testimony; 

scope;. Plaintiffs MIL #1, 2, 15,16, 

17, 18, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 25 of 106
Merkley, John 2-26-2020 25

 228 19 personal use.

 228 20 THE WITNESS: No.

 228 21 BY MR. WASDIN:

229:1 - 230:6 Merkley, John 2-26-2020

 229 1 Q. The last thing I want to ask you about is

 229 2 we talked a little bit about experimenter fit

 229 3 versus user fit in the testing of hearing

 229 4 protection devices; do you remember that?

 229 5 A. Yes.

 229 6 Q. And we said that experimenter fit was

 229 7 definitely the standard -- the fitting methodology

 229 8 for the 1974 ANSI standard, right?

 229 9 A. Correct.

 229 10 Q. That's the standard that's used during

 229 11 NRR labeling testing?

 229 12 A. Yes.

 229 13 Q. Are you aware that the results achieved

 229 14 when an experimenter fits an earplug are often

 229 15 greater than when a user fits the plug themselves?

 229 16 MR. BUCHANAN: Objection to form.

 229 17 THE WITNESS: Yes.

 229 18 BY MR. WASDIN:

 229 19 Q. Is that something that is discussed at

 229 20 the NHCA conference from time to time?

 229 21 A. Yes.

 230 1 Q. For that reason, NRR ratings tend to

 230 2 overestimate the amount of attenuation any

 230 3 particular person would get with a product, right?

 230 4 MR. BUCHANAN: Objection. Form and

 230 5 foundation.

 230 6 THE WITNESS: Yes.

Re: [229:1-230:6]

Plt Objection - improper counter 

designation per PTO 64; 602; 611

Re: [229:1-

230:6]

Plt Objection -

improper counter 

designation per 

PTO 64; 602; 

611

SUSTAINED

Re: [229:1-230:6]

FRE 402/403; foundation; 

speculation; 701/702 improper 

opinion testimony; improper 

bolstering; scope; 802; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 18, 

21.

SUSTAINED

232:3 - 232:14 Merkley, John 2-26-2020

 232 3 Q. Were you generally aware during your time

 232 4 as an Army audiologist that the yellow end did

 232 5 provide some level of attenuation --

 232 6 MR. BUCHANAN: Objection to form.

 232 7 THE WITNESS: Yes.

 232 8 BY MR. WASDIN:

 232 9 Q. -- even for lower-level sounds?

 232 10 A. Yes.

 232 11 Q. You didn't think that it let one hundred

 232 12 percent of all ambient sound come through?

Re: [232:3-232:14]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

improper bolstering; scope; 802. 

Plaintiffs MIL #1, 2, 15,16, 17, 18

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 26 of 106
Merkley, John 2-26-2020 26

 232 13 MR. BUCHANAN: Objection to the leading.

 232 14 THE WITNESS: Correct.

233:4 - 233:17 Merkley, John 2-26-2020

 233 4 Q. Good afternoon, LTC Merkley. My name is

 233 5 Dave Buchanan. I represent service members and

 233 6 veterans in connections with their claims against

 233 7 3M relating to the Combat Arms Version 2. I've got

 233 8 some questions now for you --

 233 9 A. Um-hum.

 233 10 Q. -- probably touching on many of the same

 233 11 areas, probably a few other ones, but before we

 233 12 went down that road, I wanted to make sure I

 233 13 understood, you know, in a more complete way

 233 14 exactly where you are today.

 233 15 Is it correct, sir, that you're at the

 233 16 Army Hearing Conservation Program office today?

 233 17 A. It's the Army Hearing Program Office.

“I represent 

service 

members and 

veterans in 

connections 

with their 

claims against 

3M relating to 

the Combat 

Arms Version 

2” (233:5-7) is 

EXCLUDED.

235:15 - 236:5 Merkley, John 2-26-2020

 235 15 Q. Okay. Am I correct, sir, you -- you

 235 16 served as a clinical audiologist for several years

 235 17 and in several different settings and then have

 235 18 separately held positions where I'll say more

 235 19 policy based, is that fair?

 235 20 A. Yes.

 235 21 Q. Okay. Could you kind of identify for us

 236 1 your windows when you had clinical experience?

 236 2 A. Clinical experience initially from 2000

 236 3 to -- well, really all of the way through 2015 when

 236 4 I moved to the Defense Hearing Center of

 236 5 Excellence.

242:15 - 252:16 Merkley, John 2-26-2020

 242 15 MR. BUCHANAN: Could we pull up P1547?

 242 16 And that's just a video. We'll pass it to you on a

 242 17 thumb drive. Can we pause for a moment?

 242 18 BY MR. BUCHANAN:

 242 19 Q. We've been talking about the Hearing

 242 20 Center of Excellence. Is that attached to the DoD

 242 21 as opposed to the Army specifically?

 243 1 A. It is -- it is a -- attached to the

 243 2 Defense Health Agency.

 243 3 Q. Okay.

 243 4 MR. BUCHANAN: Thank you.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 27 of 106
Merkley, John 2-26-2020 27

 243 5 BY MR. BUCHANAN:

 243 6 Q. Do you recognize the logo, sir.

 243 7 A. Yes.

 243 8 Q. Are you familiar with videos that the

 243 9 Hearing Center of Excellence made available?

 243 10 A. I am.

 243 11 Q. Okay. Were you a part of that initiative

 243 12 to make those available?

 243 13 A. A lot of the videos that are out there I

 243 14 was not a part of. I -- I played a -- an advising

 243 15 role in three training videos prior to going to the

 243 16 Center of Excellence --

 243 17 Q. Okay.

 243 18 A. -- and then worked on some -- you know,

 243 19 making some of these available in a shorter

 243 20 commercial-type time frame.

 243 21 Q. Okay. And did you work on this one?

 244 1 A. I don't know.

 244 2 Q. Or have I not rolled it far enough?

 244 3 A. Yeah, I don't -- I don't know which one

 244 4 this one is.

 244 5 MR. BUCHANAN: Can we play it, please?

 244 6 It says, Protect Your Hearing. It's a Noisy World.

 244 7 Thank you for the transcript. You can

 244 8 continue, Zach.

 244 9 (Video.)

 244 10 Hearing is an absolutely critical

 244 11 component of communication in terms of getting our

 244 12 job done and performing the mission.

 244 13 We in the military are very focused on

 244 14 the impact of hearing loss and hearing-related

 244 15 issues on job performance.

 244 16 If you incur hearing loss at a very young

 244 17 age through your military service, it has long-term

 244 18 consequences.

 244 19 Perhaps the greatest tragedy is that

 244 20 long-term effect of hearing loss on quality of

 244 21 life.

 245 1 Hearing is oftentimes overlooked as an

 245 2 invisible injury. It doesn't bleed, and oftentimes

 245 3 it doesn't hurt.

 245 4 MR. BUCHANAN: Can you stop it?

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 28 of 106
Merkley, John 2-26-2020 28

 245 5 BY MR. BUCHANAN:

 245 6 Q. I just wanted to pause on that for a

 245 7 moment. One of the statements in the video is that

 245 8 hearing loss has an impact on quality of life long

 245 9 lasting. These statements that are in the video,

 245 10 were those endorsed by the HC -- the HCE --

 245 11 A. Yes.

 245 12 Q. -- in connection with the -- okay. It

 245 13 states -- the video just stated hearing is

 245 14 oftentimes overlooked as an invisible injury. What

 245 15 does that mean?

 245 16 A. Well, it means a lot of times the -- the

 245 17 injury is -- there's no physical manifestation of

 245 18 the injury, and there's no blood that comes out of

 245 19 the ear or -- and in -- in many cases, you don't

 245 20 even notice it until somebody does a hearing test

 245 21 and identifies it.

 246 1 Q. You provided some testimony on

 246 2 examination from defense counsel about your

 246 3 experience in Iraq, and I think you were discussing

 246 4 some of the impacts of IEDs, and colloquialize it,

 246 5 it was ruptured eardrums, right?

 246 6 A. Correct. Yes.

 246 7 Q. And that was something that had been

 246 8 observed in Iraq by yourself, fair?

 246 9 A. Yes.

 246 10 Q. There are other categories of hearing

 246 11 loss that occur that don't manifest themselves

 246 12 visibly in the same way?

 246 13 A. Right.

 246 14 Q. Okay. And -- and that's what we're

 246 15 referring to, or the video just referred to, as

 246 16 invisible injury, is that fair?

 246 17 A. Right. Yes.

 246 18 MR. BUCHANAN: Can you continue?

 246 19 (Video.)

 246 20 Unfortunately, it sneaks up on you over

 246 21 time, and by the time you notice the hearing loss,

 247 1 the damage is already done.

 247 2 Hearing loss has a significant impact on

 247 3 family relationships and quality of life.

 247 4 We are social animals. We rely on

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 29 of 106
Merkley, John 2-26-2020 29

 247 5 communication a lot more with friends and peers.

 247 6 The quality of life largely depends on

 247 7 the people near and dear to us.

 247 8 Hearing allows you to communicate

 247 9 verbally, and verbal communication is very often

 247 10 the foundation of relationships.

 247 11 Sitting around a table with extended

 247 12 family, now, those are pleasurable moments.

 247 13 We've all seen these at family

 247 14 get-togethers. Grandpa sitting in the corner with

 247 15 a newspaper pretending to read for the 14th time

 247 16 because he can't understand what you're talking

 247 17 about.

 247 18 They don't feel a part of the crowd.

 247 19 They don't feel as connected, and so it's

 247 20 isolating.

 247 21 They may withdraw from their family

 248 1 members, which can, in turn, affect the whole

 248 2 family and just the health and wellness of that

 248 3 family unit.

 248 4 So, when we don't hear and we can't

 248 5 communicate or participate and we can't participate

 248 6 in the world around us, it's a big effect.

 248 7 It doesn't take very much hearing loss to

 248 8 really make you feel isolated and to realize that

 248 9 you're not following the conversation because you

 248 10 really are missing too much information. And you

 248 11 nod and you laugh and you do what we all do, and

 248 12 you want everyone to think that you're following

 248 13 the conversation, but you just are not.

 248 14 Most likely the individual is not aware

 248 15 of the hearing loss. It's usually the family

 248 16 members or close friends that become aware of the

 248 17 hearing problems.

 248 18 BY MR. BUCHANAN:

 248 19 Q. Do you remember the video at this point,

 248 20 sir?

 248 21 A. I -- I know this video, yes.

 249 1 Q. Were you involved in the production and

 249 2 the preparation?

 249 3 A. No.

 249 4 Q. Okay. You recognized several of the

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 30 of 106
Merkley, John 2-26-2020 30

 249 5 folks in there?

 249 6 A. Right. Yes.

 249 7 Q. Some names I think we've heard about in

 249 8 your testimony, I think -- I think you were -- you

 249 9 discussed CDR Bealer earlier today, do you recall

 249 10 him?

 249 11 A. Yes.

 249 12 Q. You saw LTC Eric Fallon. Did you see his

 249 13 picture in the --

 249 14 A. Yes.

 249 15 Q. Is he a -- currently a 3M employee?

 249 16 A. I -- I believe so. Last -- last I heard

 249 17 he was.

 249 18 Q. Okay. Is that something the military

 249 19 does for these kind of things? They'll partner

 249 20 with industry for the preparation of them?

 249 21 A. I don't know that they partner with

 250 1 industry for the preparation of these. At the time

 250 2 when they filmed this, I think COL Fallon was on

 250 3 active duty.

 250 4 Q. I see.

 250 5 A. But I don't -- I don't know that for

 250 6 sure.

 250 7 Q. Were you with the Hearing Center of

 250 8 Excellence when this was prepared?

 250 9 A. I was not.

 250 10 Q. Okay. Did it predate you?

 250 11 A. It did.

 250 12 Q. Oh, I see.

 250 13 A. Yes.

 250 14 Q. Thank you. You have actually presented

 250 15 as part of your hearing conservation programs to

 250 16 bases and others about the importance of being

 250 17 aware of this kind of silent nature of hearing

 250 18 loss, fair?

 250 19 A. Yes.

 250 20 Q. Okay. It's your view -- withdrawn.

 250 21 Let me share with you a copy of P1534.

 251 1 MR. WASDIN: Did you get the flash drive

 251 2 for the last one?

 251 3 MR. BACHMANN: No.

 251 4 MR. WASDIN: Did you say we'll get a

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 31 of 106
Merkley, John 2-26-2020 31

 251 5 flash drive?

 251 6 MR. BUCHANAN: Yes, we're happy to. I'm

 251 7 asking you, sir, P1534. One for you, Major Evans.

 251 8 BY MR. BUCHANAN:

 251 9 Q. P1534 is a PowerPoint that was shared

 251 10 with us by 3M, but it's reflected in the cover

 251 11 sheet as being one that you modified in 2012.

 251 12 That's at P1534.

 251 13 A. One that I -- I modified?

 251 14 Q. That's what the cover sheet references.

 251 15 I -- we'll satisfy yourself when we look at it,

 251 16 sir, that these are the statements of somebody from

 251 17 3M.

 251 18 It says -- it's an email between Jason

 251 19 Jones, a marketing person at 3M, and Eric Fallon,

 251 20 copy to another 3M person, Doug Moses?

 251 21 A. Right.

 252 1 Q. It says, Eric: Have you seen this

 252 2 presentation before? Walter Pawlowski from New

 252 3 Dynamics found it online. New Dynamics was a --

 252 4 A. Oh, okay.

 252 5 Q. New Dynamics was a distributor of the

 252 6 Combat earplugs, were you aware of that?

 252 7 A. I -- I didn't know that.

 252 8 Q. Okay. It says it was created by Todd

 252 9 Jensen in 2007 and modified to this form in 2012 by

 252 10 John Merkley.

 252 11 A. Okay.

 252 12 Q. Had you been having dealings with folks

 252 13 within 3M in the, you know, late '2000s, early

 252 14 2010, '11, '12?

 252 15 A. Not that I recall. Nothing like

 252 16 official.

244:5 - 248:21 Merkley, John 2-26-2020

 244 5 MR. BUCHANAN: Can we play it, please?

 244 6 It says, Protect Your Hearing. It's a Noisy World.

 244 7 Thank you for the transcript. You can

 244 8 continue, Zach.

 244 9 (Video.)

 244 10 Hearing is an absolutely critical

 244 11 component of communication in terms of getting our

 244 12 job done and performing the mission.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 32 of 106
Merkley, John 2-26-2020 32

 244 13 We in the military are very focused on

 244 14 the impact of hearing loss and hearing-related

 244 15 issues on job performance.

 244 16 If you incur hearing loss at a very young

 244 17 age through your military service, it has long-term

 244 18 consequences.

 244 19 Perhaps the greatest tragedy is that

 244 20 long-term effect of hearing loss on quality of

 244 21 life.

 245 1 Hearing is oftentimes overlooked as an

 245 2 invisible injury. It doesn't bleed, and oftentimes

 245 3 it doesn't hurt.

 245 4 MR. BUCHANAN: Can you stop it?

 245 5 BY MR. BUCHANAN:

 245 6 Q. I just wanted to pause on that for a

 245 7 moment. One of the statements in the video is that

 245 8 hearing loss has an impact on quality of life long

 245 9 lasting. These statements that are in the video,

 245 10 were those endorsed by the HC -- the HCE --

 245 11 A. Yes.

 245 12 Q. -- in connection with the -- okay. It

 245 13 states -- the video just stated hearing is

 245 14 oftentimes overlooked as an invisible injury. What

 245 15 does that mean?

 245 16 A. Well, it means a lot of times the -- the

 245 17 injury is -- there's no physical manifestation of

 245 18 the injury, and there's no blood that comes out of

 245 19 the ear or -- and in -- in many cases, you don't

 245 20 even notice it until somebody does a hearing test

 245 21 and identifies it.

 246 1 Q. You provided some testimony on

 246 2 examination from defense counsel about your

 246 3 experience in Iraq, and I think you were discussing

 246 4 some of the impacts of IEDs, and colloquialize it,

 246 5 it was ruptured eardrums, right?

 246 6 A. Correct. Yes.

 246 7 Q. And that was something that had been

 246 8 observed in Iraq by yourself, fair?

 246 9 A. Yes.

 246 10 Q. There are other categories of hearing

 246 11 loss that occur that don't manifest themselves

 246 12 visibly in the same way?

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 33 of 106
Merkley, John 2-26-2020 33

 246 13 A. Right.

 246 14 Q. Okay. And -- and that's what we're

 246 15 referring to, or the video just referred to, as

 246 16 invisible injury, is that fair?

 246 17 A. Right. Yes.

 246 18 MR. BUCHANAN: Can you continue?

 246 19 (Video.)

 246 20 Unfortunately, it sneaks up on you over

 246 21 time, and by the time you notice the hearing loss,

 247 1 the damage is already done.

 247 2 Hearing loss has a significant impact on

 247 3 family relationships and quality of life.

 247 4 We are social animals. We rely on

 247 5 communication a lot more with friends and peers.

 247 6 The quality of life largely depends on

 247 7 the people near and dear to us.

 247 8 Hearing allows you to communicate

 247 9 verbally, and verbal communication is very often

 247 10 the foundation of relationships.

 247 11 Sitting around a table with extended

 247 12 family, now, those are pleasurable moments.

 247 13 We've all seen these at family

 247 14 get-togethers. Grandpa sitting in the corner with

 247 15 a newspaper pretending to read for the 14th time

 247 16 because he can't understand what you're talking

 247 17 about.

 247 18 They don't feel a part of the crowd.

 247 19 They don't feel as connected, and so it's

 247 20 isolating.

 247 21 They may withdraw from their family

 248 1 members, which can, in turn, affect the whole

 248 2 family and just the health and wellness of that

 248 3 family unit.

 248 4 So, when we don't hear and we can't

 248 5 communicate or participate and we can't participate

 248 6 in the world around us, it's a big effect.

 248 7 It doesn't take very much hearing loss to

 248 8 really make you feel isolated and to realize that

 248 9 you're not following the conversation because you

 248 10 really are missing too much information. And you

 248 11 nod and you laugh and you do what we all do, and

 248 12 you want everyone to think that you're following

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 34 of 106
Merkley, John 2-26-2020 34

 248 13 the conversation, but you just are not.

 248 14 Most likely the individual is not aware

 248 15 of the hearing loss. It's usually the family

 248 16 members or close friends that become aware of the

 248 17 hearing problems.

 248 18 BY MR. BUCHANAN:

 248 19 Q. Do you remember the video at this point,

 248 20 sir?

 248 21 A. I -- I know this video, yes.

249:1 - 249:3 Merkley, John 2-26-2020

 249 1 Q. Were you involved in the production and

 249 2 the preparation?

 249 3 A. No.

249:18 - 250:3 Merkley, John 2-26-2020

 249 18 Q. Okay. Is that something the military

 249 19 does for these kind of things? They'll partner

 249 20 with industry for the preparation of them?

 249 21 A. I don't know that they partner with

 250 1 industry for the preparation of these. At the time

 250 2 when they filmed this, I think COL Fallon was on

 250 3 active duty.

Re: [249:18-250:3]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

SUSTAINED

250:7 - 250:11 Merkley, John 2-26-2020

 250 7 Q. Were you with the Hearing Center of

 250 8 Excellence when this was prepared?

 250 9 A. I was not.

 250 10 Q. Okay. Did it predate you?

 250 11 A. It did.

250:14 - 250:19 Merkley, John 2-26-2020

 250 14 Q. Thank you. You have actually presented

 250 15 as part of your hearing conservation programs to

 250 16 bases and others about the importance of being

 250 17 aware of this kind of silent nature of hearing

 250 18 loss, fair?

 250 19 A. Yes.

251:9 - 251:12 Merkley, John 2-26-2020

 251 9 Q. P1534 is a PowerPoint that was shared

 251 10 with us by 3M, but it's reflected in the cover

 251 11 sheet as being one that you modified in 2012.

 251 12 That's at P1534.

252:12 - 252:16 Merkley, John 2-26-2020

 252 12 Q. Had you been having dealings with folks

 252 13 within 3M in the, you know, late '2000s, early

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 35 of 106
Merkley, John 2-26-2020 35

 252 14 2010, '11, '12?

 252 15 A. Not that I recall. Nothing like

 252 16 official.

253:3 - 253:8 Merkley, John 2-26-2020

 253 3 Q. Okay. Do you recognize this now as

 253 4 something you had some involvement with or

 253 5 familiarity with?

 253 6 A. I -- I don't, but -- but, you know, I've

 253 7 prepared so many training events over the years,

 253 8 and in 2012, so I would have been at Ft. Carson.

253:18 - 254:4 Merkley, John 2-26-2020

 253 18 Q. You recognize that framing or phrasing as

 253 19 yours --

 253 20 A. I --

 253 21 Q. -- or language you used?

 254 1 A. Not nec- -- I've -- I've used that, and

 254 2 I've learned it. It's not unique to me, I'll say

 254 3 that. It's something that we have taught and used

 254 4 for years.

Re: [253:18-254:4]

Improper counter designation; 

FRE 403; foundation; scope; 802; 

805; Plaintiffs MIL 1, 2, 15, 16,

17, 21

OVERRULED

254:5 - 255:8 Merkley, John 2-26-2020

 254 5 Q. And fair to say, sir, in connection with

 254 6 your teaching about this to -- as part of hearing

 254 7 conservation programs, an important point to

 254 8 emphasize is that it's painless and that the

 254 9 soldier or service member may not realize that

 254 10 they're being impacted by their noise environment

 254 11 in a potentially harmful way?

 254 12 A. Right.

 254 13 Q. That it's progressive, meaning that it

 254 14 can accumulate over time, fair?

 254 15 A. Right.

 254 16 Q. That it's permanent, right?

 254 17 A. Correct.

 254 18 Q. Meaning there's hairs in the inner ear

 254 19 that when they get wiped out for one reason or

 254 20 another, they don't grow back?

 254 21 A. Correct.

 255 1 Q. And, lastly, in your emphasis here, that

 255 2 it's preventable, fair?

 255 3 A. Yes.

 255 4 Q. And that's really fundamentally one of

 255 5 the emphases of the of the Army and its hearing

Re: [254:5-255:3]

Def Objection - Vague (611, 403); 

Foundation (602); 702

Re: [254:5-

255:3]

Def Objection -

Vague (611, 

403); Foundation 

(602); 702

602 AND 611 

OBJECTIONS 

WITHDRAWN, 

3/11/2021 

OVERRULED, 

as to remaining

objections

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 36 of 106
Merkley, John 2-26-2020 36

 255 6 conservation program. It's trying to minimize and

 255 7 prevent hearing loss, right?

 255 8 A. Right.

256:6 - 257:9 Merkley, John 2-26-2020

 256 6 MAJOR EVANS: I just want to interrupt

 256 7 for a second. He can't be qualified as an expert

 256 8 for any of this, and so we're starting to get into

 256 9 this where he's identifying items on the

 256 10 PowerPoint, and I'm okay with that.

 256 11 I just want to make sure that it's clear

 256 12 that he's not going to be answering any opinions

 256 13 here about anything that would be related to his,

 256 14 you know, profession as an audiologist.

 256 15 MR. BUCHANAN: Understood. And I

 256 16 understood from -- it was not your intent in

 256 17 offering him pursuant to the Touhy request that he

 256 18 was going to be offering any opinions with regard

 256 19 to 3M's request, so this transcript should be

 256 20 appropriately construed in that way.

 256 21 MAJOR EVANS: Yes. So, I just want to

 257 1 make sure that we're clear that he's not here in an

 257 2 expert capacity.

 257 3 MR. BUCHANAN: I appreciate that and

 257 4 understand that.

 257 5 BY MR. BUCHANAN:

 257 6 Q. I'm -- I'm trying to stay within what I

 257 7 understood you factually used. This is a slide

 257 8 that you have used, sir?

 257 9 A. I -- I believe so, yes.

Re: [256:15-256:20]

Improper counter designation; 

sidebar

SUSTAINED

258:5 - 259:2 Merkley, John 2-26-2020

 258 5 Q. Okay. I'd like to take us to .98 of that

 258 6 same document.

 258 7 A. .98?

 258 8 Q. I think I just -- I think I just

 258 9 misspoke. .48, thank you. I can't read my own

 258 10 writing, sir.

 258 11 A. Okay.

 258 12 Q. Another slide in your presentation, sir,

 258 13 and you -- you note that the great majority of

 258 14 hearing loss incurred by soldiers is incurred in

 258 15 the garrison or training environment. It can and

 258 16 should be prevented, do you see that?

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 37 of 106
Merkley, John 2-26-2020 37

 258 17 A. Yes.

 258 18 Q. Okay. And for the jury's benefit, a

 258 19 garrison is what?

 258 20 A. An installation, a -- a base, I guess,

 258 21 you know, where the soldiers live, work and train.

 259 1 So, like an installation. If you're on the

 259 2 installation, that's -- you're in the garrison.

259:21 - 260:9 Merkley, John 2-26-2020

 259 21 Q. Okay. And so, what you're writing here

 260 1 then is the great majority of hearing loss by

 260 2 soldiers is incurred in a garrison. So, in other

 260 3 words, stateside on a base?

 260 4 A. Right.

 260 5 Q. Okay. Or training environment, right?

 260 6 A. Right.

 260 7 Q. Okay. It can and should be prevented,

 260 8 that's what you wrote?

 260 9 A. Yes.

264:19 - 265:6 Merkley, John 2-26-2020

 264 19 Q. Okay. We see on 1532.31 catalog, it says

 264 20 at the top, New Dynamics Corp, do you see that?

 264 21 A. Yes.

 265 1 Q. Military and government hearing

 265 2 protection, right?

 265 3 A. Um-hum.

 265 4 Q. On the next page, it's showing the design

 265 5 for Combat -- Combat Arms, right?

 265 6 A. Right.

265:7 - 265:12 Merkley, John 2-26-2020

 265 7 Q. Do you remember getting catalogs and

 265 8 marketing literature during your period of time at

 265 9 Ft. Carson --

 265 10 A. Yes.

 265 11 Q. -- for the Combat Arms?

 265 12 A. Yes.

265:13 - 265:16 Merkley, John 2-26-2020

 265 13 Q. So, you got the company's marketing

 265 14 claims and the scientific data they shared with you

 265 15 in their communications?

 265 16 A. Yes.

Re: [265:13-265:16]

Def Objection - Vague (611, 403)

Re: [265:13-

265:16]

Def Objection -

Vague (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 38 of 106
Merkley, John 2-26-2020 38

265:19 - 266:10 Merkley, John 2-26-2020

 265 19 Q. Okay. We see, if we go to -- I don't

 265 20 know if I identified that page for the record.

 265 21 That was P1532.32. And this particular document

 266 1 states the level-dependent technology used in the

 266 2 earplug has been tested and found to be protective

 266 3 up to approximately 190 dBP for outdoor exposures

 266 4 sufficient to cover most of the weapons in the

 266 5 military inventory, including shoulder-fired

 266 6 rockets. Did I read that correctly?

 266 7 A. Yes.

 266 8 Q. Okay. And if the company was going to

 266 9 state that to you, I take it, from your perspective

 266 10 sir, it should have been true?

Re: [265:19-266:6]

Def Objection - Relevance (401, 

402)

Re: [266:8-266:12]

Def Objection - Relevance (401, 

402); Argumentative (611, 403)

Re: [265:19-

266:6]

Def Objection -

Relevance (401, 

402)

OVERRULED

Re: [266:8-

266:12]

Def Objection -

Relevance (401, 

402); 

Argumentative 

(611, 403)

OVERRULED

266:12 - 266:21 Merkley, John 2-26-2020

 266 12 THE WITNESS: Yes.

 266 13 BY MR. BUCHANAN:

 266 14 Q. When you received this information, sir,

 266 15 from manufacturers, do you review it to see the

 266 16 performance characteristics to see what offerings

 266 17 maybe should be available to soldiers in your

 266 18 units?

 266 19 A. Yes.

 266 20 Q. It's important the performance

 266 21 characteristics that are shared with you be true?

Re: [266:8-266:12]

Def Objection - Relevance (401, 

402); Argumentative (611, 403)

Re: [266:14-266:19]

Def Objection - Relevance (401, 

402)

Re: [266:20-267:2]

Def Objection - Relevance (401, 

402); Argumentative (611, 403)

Re: [266:8-

266:12]

Def Objection -

Relevance (401, 

402); 

Argumentative 

(611, 403)

OVERRULED

Re: [266:14-

266:19]

Def Objection -

Relevance (401, 

402)

OVERRULED

Re: [266:20-

267:2]

Def Objection -

Relevance (401, 

402); 

Argumentative 

(611, 403)

OVERRULED

267:2 - 267:2 Merkley, John 2-26-2020

 267 2 THE WITNESS: Yes.

Re: [266:20-267:2]

Def Objection - Relevance (401, 

402); Argumentative (611, 403)

Re: [266:20-

267:2]

Def Objection -

Relevance (401, 

402); 

Argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 39 of 106
Merkley, John 2-26-2020 39

(611, 403)

OVERRULED

267:12 - 267:21 Merkley, John 2-26-2020

 267 12 Q. It says, losing your hearing is not a

 267 13 requirement for serving your country. With proper

 267 14 fitting, training and the right hearing protector,

 267 15 you can maintain your survivability, lethality and

 267 16 mission effectiveness and enjoy the quiet sounds of

 267 17 life, do you see that?

 267 18 A. Yes.

 267 19 Q. Did the -- did the Army from time to time

 267 20 receive posters that it -- from manufacturers that

 267 21 it would make available on its -- in its garrisons?

268:3 - 268:3 Merkley, John 2-26-2020

 268 3 THE WITNESS: Yes, I've received this.

268:12 - 268:17 Merkley, John 2-26-2020

 268 12 Q. Okay.

 268 13 A. -- and -- but I don't remember if we used

 268 14 it. We -- we got a lot of Honeywell. You know, we

 268 15 get a lot of these things, so I'm -- I'm not sure

 268 16 if I ever used this particular one or any -- any of

 268 17 these.

Re: [268:12-268:17]

Improper counter designation; 

nonresponsive narrative answer; 

speculation. 

SUSTAINED

272:6 - 274:16 Merkley, John 2-26-2020

 272 6 Q. Okay. Could we go to 6.6.5? It's on

 272 7 P1504.7. I think you were shown this in the prior

 272 8 version, but it states, personnel shall be allowed

 272 9 to choose personal hearing protectors among those

 272 10 approved devices, and it continues. Has that been

 272 11 your experience, sir, with the Army?

 272 12 A. Yes.

 272 13 Q. Has that been your experience as a

 272 14 hearing conservation program manager on bases?

 272 15 A. Yes.

 272 16 Q. Has that been your experience in your

 272 17 capacity now as a hearing -- Army Hearing Program

 272 18 manager?

 272 19 A. Yes.

 272 20 Q. Soldiers, service members have the right

 272 21 to choose the hearing protector of their choice so

 273 1 long as based on the information the Army has

 273 2 received, it's going to bring their exposure to

 273 3 safe levels?

Re: [272:6-274:16]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 40 of 106
Merkley, John 2-26-2020 40

 273 4 A. Right.

 273 5 Q. Okay. Does the Army share that, if you

 273 6 will, policy with the service members so they are

 273 7 aware that they have that right to choose?

 273 8 A. I believe so. It's part -- it's a

 273 9 requirement of annual training.

 273 10 Q. And so, as a requirement, then soldiers

 273 11 would be told they have the right to select the

 273 12 hearing protector that's going to -- that they're

 273 13 most satisfied with given the Army's approved

 273 14 devices?

 273 15 A. Yeah. I just want to make one thing

 273 16 clear. The Army and the Army Public Health

 273 17 Command, as far as I know, does not approve

 273 18 devices. The devices have to meet a certain

 273 19 criteria, and there is currently an evaluated

 273 20 product list, but like the Army Public Health

 273 21 Center in my -- my position, I do not approve

 274 1 hearing protectors.

 274 2 Q. Fair. And if I -- if -- my question kind

 274 3 of took us back in the wrong direction. I

 274 4 appreciate that clarification.

 274 5 I understand from your testimony earlier

 274 6 today that you have not in your capacity as the

 274 7 Army program manager for hearing been responsible

 274 8 for selecting or approving hearing protection

 274 9 devices, correct?

 274 10 A. Correct.

 274 11 Q. And you have not at any of the other

 274 12 sites and locations you've been at through the

 274 13 course of your career been responsible for

 274 14 approving available hearing protection devices,

 274 15 correct?

 274 16 A. Correct.

305:7 - 306:21 Merkley, John 2-26-2020

 305 7 MR. BUCHANAN: Could I please have

 305 8 P1364A.

 305 9 BY MR. BUCHANAN:

 305 10 Q. It's in your binder, 1364A. For the

 305 11 record, sir, this is a document entitled Medical

 305 12 Procurement Item Description. It's dated April 9,

 305 13 2003, and it goes through describing the Aearo

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 41 of 106
Merkley, John 2-26-2020 41

 305 14 Corporation's PN 3701000 or equal. I'll represent

 305 15 to you, sir, as noted up top, it's the Combat Arms

 305 16 double-sided 50 pair. Do you see that on the

 305 17 top-right corner?

 305 18 A. Yes.

 305 19 Q. Okay. And then it talks about salient

 305 20 characteristics. That's heading 2, do you see

 305 21 that?

 306 1 A. Um-hum.

 306 2 Q. And then if we go to the next page,

 306 3 Section 2.5, Instructions, and among the salient

 306 4 characteristics for the plugs is this particular

 306 5 heading, Instructions, do you see that on the

 306 6 second page?

 306 7 A. Yes.

 306 8 Q. It says, illustrated instructions

 306 9 explaining the proper use and handling of the

 306 10 earplugs shall be supplied with each unit.

 306 11 Instructions shall be legible and easy to -- it

 306 12 says easy to ready, but I assume read?

 306 13 A. Read.

 306 14 Q. Instructions shall be printed in black or

 306 15 navy blue ink on a suitable sheet of paper which

 306 16 shall be placed inside the unit package prior to

 306 17 sealing. As an alternate, instructions may be

 306 18 printed on a suitable clearly visible location on

 306 19 the unit container in permanent black or navy blue

 306 20 ink. Did I read that correctly, sir?

 306 21 A. Yes.

307:1 - 307:3 Merkley, John 2-26-2020

 307 1 Q. Okay. I'm going to move forward.

 307 2 There's a later NPID. This one is from 2003.

 307 3 There's one from 2006.

307:14 - 308:1 Merkley, John 2-26-2020

 307 14 Q. This is the medical pro- -- Medical

 307 15 Procurement Item Description dated July 16, 2006.

 307 16 Again, you'll satisfy yourself, sir. On the right

 307 17 it says, plug ear Combat Arms double-ended, 50

 307 18 pair, do you see that?

 307 19 A. Yes.

 307 20 Q. And under Salient Characteristics, moving

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 42 of 106
Merkley, John 2-26-2020 42

 307 21 down to Section 2.5 Instructions, do you see that?

 308 1 Section 2.5, Instruction?

308:5 - 308:21 Merkley, John 2-26-2020

 308 5 A. Yes. Okay. Yes.

 308 6 Q. It reads, illustrated instructions

 308 7 explaining the proper use and handling of the

 308 8 earplug shall be supplied with each unit.

 308 9 Instructions shall be legible and easy to read.

 308 10 Instructions shall be printed in permanent black

 308 11 and navy ink on a suitable sheet of paper which

 308 12 shall be placed inside the unit package prior to

 308 13 sealing. As an alternate, instructions may be

 308 14 printed on a suitable clearly visible location on

 308 15 the unit container in permanent black or navy blue

 308 16 ink. Did I read that reasonably correctly?

 308 17 A. Yes.

 308 18 Q. Okay. Are you aware, sir, that orders

 308 19 were placed pursuant to medical product item

 308 20 description 1 and 2 for the Combat Arms Earplug?

 308 21 A. Yes.

309:1 - 309:7 Merkley, John 2-26-2020

 309 1 Q. Are you aware that orders were filled

 309 2 pursuant to them?

 309 3 A. Yes.

 309 4 Q. Okay. Fair to say at least within the

 309 5 framework of the item description, instructions are

 309 6 required?

 309 7 A. Yes.

311:19 - 311:21 Merkley, John 2-26-2020

 311 19 Q. Do you understand, sir, from your review

 311 20 of the NPIDs that instructions were required to

 311 21 accompany the Combat Arms?

312:2 - 312:2 Merkley, John 2-26-2020

 312 2 THE WITNESS: Yes.

312:4 - 312:15 Merkley, John 2-26-2020

 312 4 Q. I understand, sir, that you've had some

 312 5 involvement looking for documents in connection

 312 6 with this litigation. Have you had any involvement

 312 7 trying to get documents from DLA or communicating

 312 8 with them?

 312 9 A. Yes, but I don't recall if it was related

 312 10 to this Touhy request. I had requested information

Re: [312:4-312:15]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 43 of 106
Merkley, John 2-26-2020 43

 312 11 related to Combat Arms Earplug sales for the Combat

 312 12 Arms Version 2 after -- as we were preparing memos

 312 13 for -- to go out for instructions on how to manage

 312 14 individuals that either were current or may

 312 15 currently still be using this particular earplug.

313:1 - 313:19 Merkley, John 2-26-2020

 313 1 Q. And it's my understanding, sir, that the

 313 2 Combat Arms are no longer offered for sale Version

 313 3 2?

 313 4 A. Right.

 313 5 Q. Is that your understanding as well?

 313 6 A. Yes.

 313 7 Q. I'll find that document at the break. It

 313 8 naturally followed the point you were making, but

 313 9 there were communications relating to, I guess,

 313 10 cease use of the Combat Arms Version 2?

 313 11 A. Initial communications were not to cease

 313 12 the use, but if you were using that earplug, to go

 313 13 and get fit checked to make sure that you were

 313 14 getting adequately protected.

 313 15 Q. That was the initial communication?

 313 16 A. Yes.

 313 17 Q. Okay. Have there been subsequent

 313 18 communications on that issue?

 313 19 A. Not that I recall from the Army.

Re: [313:1-313:6]

Relevance, (402, 407), MIL 16

OVERRULED

314:9 - 314:11 Merkley, John 2-26-2020

 314 9 Q. DLA doesn't currently stock CAV2s,

 314 10 correct?

 314 11 A. No.

315:11 - 316:8 Merkley, John 2-26-2020

 315 11 Q. Thank you, LTC Merkley. A few questions.

 315 12 You discussed with defense counsel on

 315 13 examination the way in which soldiers would be fit

 315 14 or trained to be fit, do you recall that

 315 15 discussion?

 315 16 A. Yes.

 315 17 Q. As I understood it, the -- there's a

 315 18 base-level audiologist who also had technicians?

 315 19 A. Right.

 315 20 Q. And then the technicians would interact

 315 21 with soldiers and service members?

 316 1 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 44 of 106
Merkley, John 2-26-2020 44

 316 2 Q. Okay. And from your testimony, it sounds

 316 3 like the technicians teach the soldiers or the

 316 4 service members how to insert the plugs and use the

 316 5 plugs and check fit --

 316 6 A. Yes.

 316 7 Q. -- is that fair?

 316 8 A. Yes.

316:18 - 318:4 Merkley, John 2-26-2020

 316 18 Q. Okay. And you said for yourself, your

 316 19 primary earplug protection on base would be a

 316 20 triple-flange plug, the one that you were initially

 316 21 acquainted with in the early '90s?

 317 1 A. No. I actually carried both. The -- I

 317 2 don't -- I don't generally use the triple flange

 317 3 any more. I use the quad flange --

 317 4 Q. Oh.

 317 5 A. -- or a -- a version of a -- a tactical

 317 6 earplug, and I have all -- well, my two versions

 317 7 that I really like.

 317 8 Q. Okay. So, there's a triple-flange plug

 317 9 single ended, right?

 317 10 A. Yes.

 317 11 Q. A quad-flange plug?

 317 12 A. Yes.

 317 13 Q. And then you said there are other

 317 14 tactical plugs that are currently approved for use

 317 15 in the Army?

 317 16 A. Right.

 317 17 Q. Okay. There's a battle plug?

 317 18 A. Correct.

 317 19 Q. A sure-fire plug?

 317 20 A. Yes.

 317 21 Q. And then the subsequent generation of the

 318 1 Combat Arms?

 318 2 A. Yes.

 318 3 Q. The Version 4?

 318 4 A. Yes.

318:5 - 318:8 Merkley, John 2-26-2020

 318 5 Q. Any other passive nonlinear hearing

 318 6 protection currently available for soldiers to

 318 7 choose from?

 318 8 A. For nonlinear, not that I'm aware of, no.

Re: [318:5-318:8]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 45 of 106
Merkley, John 2-26-2020 45

scope. Plaintiffs MIL #1, 2, 15,16, 

17, 21.

318:9 - 319:9 Merkley, John 2-26-2020

 318 9 Q. Okay. So, these are available options

 318 10 for service members to select from, fair?

 318 11 A. Yes.

 318 12 Q. And I take it your technicians provide

 318 13 information to them about the characteristics of

 318 14 each so they're appropriately trained on each?

 318 15 A. Yes.

 318 16 Q. And the strengths and limitations of

 318 17 each?

 318 18 A. Yes.

 318 19 Q. Would it be important, sir, for I guess

 318 20 the base audiologist and also the technicians to be

 318 21 aware of the strengths and limitations so they

 319 1 could appropriately share that information with

 319 2 service -- service members?

 319 3 A. Yes.

 319 4 Q. And if the company had information on the

 319 5 strengths and limitations, you'd certainly want

 319 6 that shared with you so, so you could share that

 319 7 with the base-level audiologists and their

 319 8 technicians?

 319 9 A. Yes.

Re: [319:4-319:9]

Def Objection - Argumentative 

(611, 403)

Re: [319:4-

319:9]

Def Objection -

Argumentative 

(611, 403)

OVERRULED

319:13 - 319:17 Merkley, John 2-26-2020

 319 13 Q. And if those limitations bore on the

 319 14 performance of the product, affected the

 319 15 performance of the product, you'd certainly want

 319 16 that shared with you so you could share it with

 319 17 base-level audiologists and also technicians, fair?

Re: [319:13-319:19]

-602

OVERRULED

319:19 - 320:5 Merkley, John 2-26-2020

 319 19 THE WITNESS: Yes.

 319 20 BY MR. BUCHANAN:

 319 21 Q. You want your technicians and

 320 1 audiologists to be aware of the strengths and

 320 2 limitations so they can then communicate adequately

 320 3 with the service members to adequately protect

 320 4 their hearing health, fair?

 320 5 A. Yes.

Re: [319:13-319:19]

-602

OVERRULED

320:18 - 323:10 Merkley, John 2-26-2020

 320 18 Q. Okay. We have before us, sir, I think

Re: [323:7-323:16]

(602), Vague

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 46 of 106
Merkley, John 2-26-2020 46

 320 19 what you identified as a wallet card?

 320 20 A. Yes.

 320 21 Q. It says, Combat Arms Earplug, insert

 321 1 yellow end, showing the left ear?

 321 2 A. Um-hum.

 321 3 Q. Insert green end, showing the green end

 321 4 inserted on the -- the other ear, do you see that?

 321 5 A. Yes.

 321 6 Q. Okay. And then there's a second bullet

 321 7 there that says, for very large ear canals, fold

 321 8 opposing plug back. Do you recall looking at that

 321 9 earlier today?

 321 10 A. Yes.

 321 11 Q. Okay. Do you see if we go to the first

 321 12 page, sir, .1, that this draft wallet card was

 321 13 shared with folks from -- from industry as well as

 321 14 other Army folks for comments? Do you see that?

 321 15 A. Yes.

 321 16 Q. There's Mr. Myers' name you see listed

 321 17 there, correct? He's the -- in the last line next

 321 18 to --

 321 19 A. Oh, yes.

 321 20 Q. -- Dancer?

 321 21 A. Um-hum.

 322 1 Q. And we saw some correspondence with

 322 2 Dancer earlier today, do you recall that?

 322 3 A. Yes.

 322 4 Q. And we see EBerger@compuserv.com.

 322 5 Mr. Berger from Aearo Corporation, do you see that?

 322 6 About the third line up.

 322 7 A. Yes. Yes.

 322 8 Q. Yeah, there you go. And this email from

 322 9 Doug Ohlin to this distribution list looks like

 322 10 it's from October 2004, do you see that?

 322 11 A. Yes.

 322 12 Q. Okay. It says, these will be

 322 13 wallet-sized laminated cards to be issued with the

 322 14 earplugs. Any comments, other than the need to

 322 15 correct the NSN for the double-ended plug, do you

 322 16 see that?

 322 17 A. Yes.

 322 18 Q. Okay. And in connection with your review

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 47 of 106
Merkley, John 2-26-2020 47

 322 19 of materials in response to the Touhy requests,

 322 20 sir, did you see any responses from any of the

 322 21 Aearo individuals to correct or change this wallet

 323 1 card?

 323 2 A. I don't recall any, no.

 323 3 Q. Any correction or clarification that the

 323 4 flanges needed to be folded back for everybody

 323 5 using the plugs?

 323 6 A. Not that I recall, no.

 323 7 Q. Any clarification to the military recall

 323 8 all of our testing with these for attenuation on

 323 9 the green end was with the flanges folded back for

 323 10 retesting?

323:13 - 323:13 Merkley, John 2-26-2020

 323 13 Q. Any communication, anything like that?

Re: [323:7-323:16]

(602), Vague

OVERRULED

323:16 - 323:16 Merkley, John 2-26-2020

 323 16 THE WITNESS: Not that I recall.

Re: [323:7-323:16]

(602), Vague

OVERRULED

323:20 - 324:2 Merkley, John 2-26-2020

 323 20 Any statement back to Dr. Ohlin from

 323 21 Aearo that in order to attain the attenuation, the

 324 1 military expects from these plugs, you'll need to

 324 2 fold the flanges back for everyone?

Re: [323:20-324:15]

-602

OVERRULED

324:4 - 324:9 Merkley, John 2-26-2020

 324 4 THE WITNESS: Not that I recall.

 324 5 BY MR. BUCHANAN:

 324 6 Q. Were you aware, sir, that in connection

 324 7 with the company's testing of the product, they

 324 8 folded the flanges back for everyone with regard to

 324 9 the green end --

Re: [323:20-324:15]

-602

OVERRULED

324:12 - 324:12 Merkley, John 2-26-2020

 324 12 Q. -- to get a proper fit?

Re: [323:20-324:15]

-602

OVERRULED

324:14 - 324:19 Merkley, John 2-26-2020

 324 14 THE WITNESS: Only in the -- I'm aware of

 324 15 it now.

 324 16 BY MR. BUCHANAN:

 324 17 Q. Okay. You became aware of it in

 324 18 connection with the litigation?

 324 19 A. Right.

Re: [323:20-324:15]

-602

OVERRULED

325:17 - 325:21 Merkley, John 2-26-2020

 325 17 about that in a moment. Prior to your involvement

 325 18 with the litigation, you had no awareness that the

 325 19 company folded back the flanges on the yellow end

Re: [325:17-326:10]

Def Objection - Argumentative 

(611, 403)

Re: [325:17-

326:10]

Def Objection -

Argumentative 

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 48 of 106
Merkley, John 2-26-2020 48

 325 20 when it was trying to get high attenuations for the

 325 21 green end --

(611, 403)

OVERRULED

326:4 - 326:10 Merkley, John 2-26-2020

 326 4 Q. -- correct?

 326 5 A. No. Correct.

 326 6 Q. Thank you. Were you aware, sir, that

 326 7 when they tested the yellow end where less

 326 8 attenuation would be desirable that they didn't

 326 9 fold back the flanges on the green end?

 326 10 A. No.

Re: [325:17-326:10]

Def Objection - Argumentative 

(611, 403)

Re: [325:17-

326:10]

Def Objection -

Argumentative 

(611, 403)

OVERRULED

326:13 - 326:16 Merkley, John 2-26-2020

 326 13 Q. They fitted and tested the green end one

 326 14 way and the yellow end another way, I'll represent

 326 15 that to you. Did you have any awareness of that?

 326 16 A. No.

Re: [326:13-326:16]

Def Objection - Foundation (602)

Re: [326:13-

326:16]

Def Objection -

Foundation (602)

OVERRULED

328:16 - 328:20 Merkley, John 2-26-2020

 328 16 Q. I think you told me just a moment ago,

 328 17 sir, there had -- you didn't find any

 328 18 communications from the company or others to Doug

 328 19 Ohlin that there were problems with the plug,

 328 20 correct?

Re: [328:16-329:1]

Def Objection - Relevance (401, 

402); Argumentative (611, 403)

Re: [328:16-

329:1]

Def Objection -

Relevance (401, 

402); 

Argumentative 

(611, 403)

[329:1] – Ds 

agree that, if 

otherwise 

admissible, this 

clarification 

designation will 

be played as 

part of Ps’ 

affirmative 

designations to 

correct an 

original 

designation that 

was incomplete. 

Ds, however, 

assert the same 

objections to 

this testimony 

that were 

asserted to Ps’ 

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 49 of 106
Merkley, John 2-26-2020 49

corresponding

affirmative 

designations, 

3/11/2021 

OVERRULED, 

as to all 

objections

329:1 - 329:1 Merkley, John 2-26-2020

 329 1 THE WITNESS: Correct.

Re: [328:16-329:1]

Def Objection - Relevance (401, 

402); Argumentative (611, 403)

Re: [328:16-

329:1]

Def Objection -

Relevance (401, 

402); 

Argumentative 

(611, 403)

[329:1] – Ds 

agree that, if 

otherwise 

admissible, this 

clarification 

designation will 

be played as 

part of Ps’ 

affirmative 

designations to 

correct an 

original 

designation that 

was incomplete.

Ds, however, 

assert the same 

objections to 

this testimony 

that were 

asserted to Ps’ 

corresponding 

affirmative 

designations, 

3/11/2021 

OVERRULED, 

as to all 

objections

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 50 of 106
Merkley, John 2-26-2020 50

329:3 - 329:14 Merkley, John 2-26-2020

 329 3 Q. And you're of the view, sir, that it's

 329 4 important for base-level audiologists and also

 329 5 their technicians to have information concerning

 329 6 the strengths and limitations of the plugs that

 329 7 they're offering to service members, fair?

 329 8 A. Yes.

 329 9 Q. I take it it would be important for

 329 10 base-level audiologists to have information about

 329 11 problems with the plug so they could appropriately

 329 12 characterize them to the people they were

 329 13 counseling, fair?

 329 14 A. Yes.

329:16 - 330:4 Merkley, John 2-26-2020

 329 16 BY MR. BUCHANAN:

 329 17 Q. If the Combat Arms had a particular

 329 18 problem sealing or maintaining a seal, would that

 329 19 be something important to know?

 329 20 A. Yes.

 329 21 Q. If there were particular features about

 330 1 the Combat Arms that made it stiff or unable to

 330 2 conform to geometry of ear canals such that it

 330 3 would loosen in a way that users didn't know, would

 330 4 that be important to know?

Re: [329:17-330:6]

Def Objection - Foundation (602), 

Argumentative (611, 403)

Re: [329:17-

330:6]

Def Objection -

Foundation 

(602), 

Argumentative 

(611, 403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/11/2021 

OVERRULED, 

as to remaining 

objection

330:6 - 330:6 Merkley, John 2-26-2020

 330 6 THE WITNESS: Yes.

Re: [329:17-330:6]

Def Objection - Foundation (602), 

Argumentative (611, 403)

Re: [329:17-

330:6]

Def Objection -

Foundation 

(602), 

Argumentative 

(611, 403)

FOUNDATION 

OBJECTION 

WITHDRAWN, 

3/11/2021 

OVERRULED, 

as to remaining 

objection

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 51 of 106
Merkley, John 2-26-2020 51

330:12 - 330:17 Merkley, John 2-26-2020

 330 12 That was a confusing question. Have you

 330 13 seen in connection with your review of materials

 330 14 any correspondence from 3M or Aearo alerting the

 330 15 Army or the military to findings and conclusions it

 330 16 made in that regard?

 330 17 A. No.

330:18 - 330:20 Merkley, John 2-26-2020

 330 18 Q. Would you expect a company, if it made

 330 19 findings such as those, to share them with the

 330 20 Army?

331:2 - 331:7 Merkley, John 2-26-2020

 331 2 THE WITNESS: Yes. But I want to go back

 331 3 because I -- I recall one of the documents that did

 331 4 report on the differences between the flange folded

 331 5 back and the flange forward. I -- but I don't

 331 6 recall if that report was from Aearo and 3M or if

 331 7 that was an ARL report, and I don't have it.

Re: [331:2-331:7]

Objection is to everything after 

"Yes." on line 02. Improper 

counter designation; 

nonresponsive (everything after 

"Yes") and improper narrative; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 18, 21.

SUSTAINED

345:13 - 345:17 Merkley, John 2-26-2020

 345 13 Q. Okay. Do you agree, sir, that important

 345 14 information concerning potential safety risks of

 345 15 hearing protection device, limitations in their

 345 16 use, strengths, limitations, etcetera should be

 345 17 shared with the U.S. Government?

Re: [345:13-346:5]

Assumes, Misstates, (602)

OVERRULED

345:19 - 346:3 Merkley, John 2-26-2020

 345 19 THE WITNESS: Yes.

 345 20 BY MR. BUCHANAN:

 345 21 Q. So that that information can certainly be

 346 1 incorporated into the counseling that's provided to

 346 2 service members on their selection of hearing

 346 3 protection?

Re: [345:13-346:5]

Assumes, Misstates, (602)

OVERRULED

346:5 - 346:5 Merkley, John 2-26-2020

 346 5 THE WITNESS: Yes.

Re: [345:13-346:5]

Assumes, Misstates, (602)

OVERRULED

348:5 - 348:17 Merkley, John 2-26-2020

 348 5 Q. The DoD instruction allows the service

 348 6 member to elect their hearing protection device of

 348 7 choice, correct?

 348 8 A. Yes.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 52 of 106
Merkley, John 2-26-2020 52

 348 9 Q. I think you've shared with us that

 348 10 the -- the base folks, audiologists and

 348 11 technicians, are to counsel the service members on

 348 12 the strengths and limitations of the various

 348 13 products, fair?

 348 14 A. Right. Yes.

 348 15 Q. Okay. And to allow them to make informed

 348 16 decisions?

 348 17 A. Yes.

349:4 - 349:8 Merkley, John 2-26-2020

 349 4 Q. I take it nobody had shared with you,

 349 5 during the time when you were a base-level

 349 6 audiologist, or otherwise, that the Combat Arms had

 349 7 been identified as subject to imperceptible

 349 8 loosening?

349:10 - 349:10 Merkley, John 2-26-2020

 349 10 THE WITNESS: Correct.

349:21 - 350:4 Merkley, John 2-26-2020

 349 21 Q. Okay. I take it, sir, you have not seen

 350 1 any correspondence or exchange of information from

 350 2 3M to the military, the Army, advising them of the

 350 3 slippage problem particular to the Combat Arms?

 350 4 A. No.

Re: [349:21-350:4]

-602

OVERRULED

354:9 - 355:3 Merkley, John 2-26-2020

 354 9 Q. I'm passing you, sir, what we have marked

 354 10 as P1272. It look like a tri-fold pamphlet, do you

 354 11 see that?

 354 12 A. Yes.

 354 13 Q. Okay. It says Army Earplug Reference,

 354 14 right?

 354 15 A. Yes.

 354 16 Q. It looks like this one is out of Ft. Hood

 354 17 in Texas, do you see that?

 354 18 A. Yes.

 354 19 Q. The Community Hospital?

 354 20 A. Yes.

 354 21 Q. Okay. And so, I guess, bases could put

 355 1 together their own materials for the benefit of

 355 2 their service members?

 355 3 A. Yes.

Re: [354:9-355:3]

Plt Objection - improper counter 

designation per PTO 64

Re: [354:9-

355:3]

Plt Objection -

improper counter 

designation per 

PTO 64

44266

Re: [354:9-355:3]

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

SUSTAINED

357:16 - 358:4 Merkley, John 2-26-2020

 357 16 Q. Thank you. Have you ever seen a picture

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 53 of 106
Merkley, John 2-26-2020 53

 357 17 of the Combat Arms in someone's ears with the

 357 18 flanges folded back in any marketing material from

 357 19 3M?

 357 20 A. No, not that I recall.

 357 21 Q. Have you ever seen pictures in any Army

 358 1 training materials of the Combat Arms in a soldier

 358 2 or service member's ears with the flanges folded

 358 3 back?

 358 4 A. Not that I can recall.

373:17 - 374:1 Merkley, John 2-26-2020

 373 17 Is that common for the Army to get

 373 18 information about product characteristics from the

 373 19 vendors?

 373 20 A. Yes.

 373 21 Q. And does the Army rely on product

 374 1 information from its vendors?

Re: [373:21-374:3]

-602

OVERRULED

374:3 - 374:3 Merkley, John 2-26-2020

 374 3 THE WITNESS: Yes.

Re: [373:21-374:3]

-602

OVERRULED

379:21 - 380:1 Merkley, John 2-26-2020

 379 21 Q. Did the Army ever receive a recall notice

 380 1 from 3M about the Combat Arms?

Re: [379:21-380:10]

Def Objection - Foundation (602); 

Misstates (611, 403); Prejudice 

(403)

Re: [379:21-

380:10]

Def Objection -

Foundation 

(602); Misstates 

(611, 403); 

Prejudice (403)

OVERRULED

380:3 - 380:10 Merkley, John 2-26-2020

 380 3 THE WITNESS: No.

 380 4 MAJOR EVANS: Well, do you know that,

 380 5 sir, or do you know if there was ever a recall

 380 6 notice?

 380 7 THE WITNESS: I --

 380 8 MAJOR EVANS: To your knowledge.

 380 9 THE WITNESS: I don't -- to my knowledge,

 380 10 no.

Re: [379:21-380:10]

Def Objection - Foundation (602); 

Misstates (611, 403); Prejudice 

(403)

Re: [379:21-

380:10]

Def Objection -

Foundation 

(602); Misstates 

(611, 403); 

Prejudice (403)

OVERRULED

381:5 - 381:8 Merkley, John 2-26-2020

 381 5 Q. Are you aware of any correspondence from

 381 6 the company that the testing that had been done in

 381 7 2000 was not proper because it wasn't proper to

 381 8 fold the flanges?

Re: [381:5-381:11]

-602

OVERRULED

381:11 - 381:11 Merkley, John 2-26-2020

 381 11 THE WITNESS: No.

Re: [381:5-381:11]

-602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 54 of 106
Merkley, John 2-26-2020 54

382:2 - 382:7 Merkley, John 2-26-2020

 382 2 Q. Sure. Are you aware of any

 382 3 correspondence from 3M or Aearo -- at this point it

 382 4 would have been 3M -- in or around this time frame,

 382 5 October 2015, that it would have been improper for

 382 6 it to continue selling the Combat Arms without

 382 7 fixing it?

Re: [382:2-382:10]

-602

OVERRULED

382:10 - 382:10 Merkley, John 2-26-2020

 382 10 THE WITNESS: No.

Re: [382:2-382:10]

-602

OVERRULED

383:5 - 383:14 Merkley, John 2-26-2020

 383 5 Q. Understood. Do you have an understanding

 383 6 more generally, sir, as of late 2015 as to whether

 383 7 the dual-ended Combat Arms was still being stocked

 383 8 by the Army?

 383 9 A. I'm sorry?

 383 10 Q. Was still stocked by the Army?

 383 11 A. I did not have any knowledge of it being

 383 12 stocked by the Army. I -- we had transitioned to

 383 13 the single-sided in -- in most, if not all, clinics

 383 14 by then.

Re: [383:5-383:14]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

OVERRULED

384:18 - 385:4 Merkley, John 2-26-2020

 384 18 Q. I'd like to play you, sir, an excerpt

 384 19 from the deposition of the -- the lab manager,

 384 20 Mr. Berger's supervisor, --

 384 21 A. Okay.

 385 1 Q. -- for the lab at Aearo that conducted

 385 2 the testing on the Combat Arms. His name is

 385 3 Jeffrey Hamer.

 385 4 MR. BUCHANAN: Clip one, please.

385:6 - 385:14 Merkley, John 2-26-2020

 385 6 (Video.)

 385 7 'Question. Okay. Would it be fair to

 385 8 say that if they did not test the open mode with

 385 9 the flange rolled back, but they did test the

 385 10 closed end with the flange rolled back, that that

 385 11 would be improper because the two tests were using

 385 12 the product in two different ways?

 385 13 'Answer. My opinion is that testing the

 385 14 product with the flange rolled back is improper.

Re:[385:15-386:2]

106

OVERRULED

385:20 - 386:3 Merkley, John 2-26-2020

 385 20 In your review of materials, did you see

 385 21 any communication from the company, from 3M, to the

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 55 of 106
Merkley, John 2-26-2020 55

 386 1 Army that the testing that had been done on the

 386 2 Combat Arms was done improperly?

 386 3 A. No.

387:6 - 387:9 Merkley, John 2-26-2020

 387 6 Q. Did you receive any communication from

 387 7 the company in or around October 2015 describing

 387 8 that the product had problems that had not been

 387 9 fixed?

Re: [387:6-387:11]

(602, 403), Relevance

OVERRULED

387:11 - 387:11 Merkley, John 2-26-2020

 387 11 THE WITNESS: No.

Re: [387:6-387:11]

(602, 403), Relevance

OVERRULED

388:8 - 388:12 Merkley, John 2-26-2020

 388 8 Q. Fair enough. Let's push the clock back

 388 9 to 2003 and '04. In 2003 or '04 if the company was

 388 10 aware of problems they hadn't fixed, would that

 388 11 have been important to share with the Army from

 388 12 your perspective?

Re: [388:8-388:14]

(602), Speculation

OVERRULED

388:14 - 388:19 Merkley, John 2-26-2020

 388 14 THE WITNESS: Yes.

 388 15 BY MR. BUCHANAN:

 388 16 Q. And your answer would be the same, during

 388 17 all of the periods of time that the Army was

 388 18 purchasing that, fair?

 388 19 A. Yes.

Re: [388:8-388:14]

(602), Speculation

OVERRULED

389:1 - 389:11 Merkley, John 2-26-2020

 389 1 Q. Sir, you provided some statements

 389 2 about --

 389 3 MR. BUCHANAN: If we can go back to

 389 4 P1165, Zach, on the screen.

 389 5 BY MR. BUCHANAN:

 389 6 Q. -- that by 2015, at least in your

 389 7 audiology clinics, you were no longer using

 389 8 the -- the double-ended version, you had advanced

 389 9 to, I think, probably Version 4 by that point in

 389 10 time?

 389 11 A. Probably.

Re: [389:1-389:11]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

SUSTAINED

406:16 - 406:18 Merkley, John 2-26-2020

 406 16 Q. You mentioned, sir, there was another way

 406 17 of testing plugs called Subject Fit; is that right?

 406 18 A. Yes.

409:11 - 409:16 Merkley, John 2-26-2020

 409 11 Q. -- it says Method B, Subject Fit, P105.2.

 409 12 Method B, Subject Fit is the testing where the

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 56 of 106
Merkley, John 2-26-2020 56

 409 13 user, using the instructions, seats the earplugs in

 409 14 their ears and then sits and does the REAT testing,

 409 15 correct?

 409 16 A. Correct.

410:4 - 410:9 Merkley, John 2-26-2020

 410 4 Q. NRR 4.4 for a triple-flanged plug would

 410 5 be low?

 410 6 MR. WASDIN: Objection to form.

 410 7 THE WITNESS: You're -- so, the NRR in a

 410 8 Subject Fit, a low NRR, it -- it is low, but I -- I

 410 9 won't -- I -- I don't know that it's uncommon.

Re: [410:4-410:9]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

SUSTAINED

410:11 - 410:18 Merkley, John 2-26-2020

 410 11 Q. Fair enough, sir. In looking at this

 410 12 particular product that DLA was reaching out for

 410 13 testing results from Aearo on, in your review of

 410 14 materials or effort to collect information, did you

 410 15 see any communication from Aearo with the military

 410 16 or the Army that they had done different testing

 410 17 using Subject Fit methodology and determined the

 410 18 NRR was 4.4?

Re: [410:11-411:1]

Def Objection - 3M MIL No. 22; 

Misstates (611, 403); Prejudice 

(403)

Re: [410:11-

411:1]

Def Objection -

3M MIL No. 22; 

Misstates (611, 

403); Prejudice 

(403)

OVERRULED

410:20 - 411:5 Merkley, John 2-26-2020

 410 20 THE WITNESS: I -- I did not see that,

 410 21 but, again, I didn't read every document that we

 411 1 came across in discovery.

 411 2 BY MR. BUCHANAN:

 411 3 Q. I'll represent to you, sir, that the

 411 4 company states they're not aware of it having been

 411 5 transmitted to the Army or the military.

Re: [410:11-411:1]

Def Objection - 3M MIL No. 22; 

Misstates (611, 403); Prejudice 

(403)

Re: [411:3-411:11]

Def Objection - Foundation (602); 

Relevance (401, 402); 3M MIL 

No. 22

Re: [410:11-

411:1]

Def Objection -

3M MIL No. 22; 

Misstates (611, 

403); Prejudice 

(403)

OVERRULED

Re: [411:3-

411:11]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 3M 

MIL No. 22

SUSTAINED, 

as to [411:3-

411:6] 

OVERRULED, 

as to [411:8-

411:11]

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 57 of 106
Merkley, John 2-26-2020 57

411:7 - 411:17 Merkley, John 2-26-2020

 411 7 BY MR. BUCHANAN:

 411 8 Q. I take it you don't have any other facts

 411 9 from your side of the -- of the fence, so to speak,

 411 10 to show that the Army got this information?

 411 11 A. No.

 411 12 Q. When you look at Army hearing

 411 13 conservation guidance about reducing noise exposure

 411 14 from, say, 108 dBs with a triple-flange

 411 15 plug -- plug, to 85 dBs, we could agree that an NRR

 411 16 of 4.4 would be concerning, fair?

 411 17 A. Yes.

Re: [411:3-411:11]

Def Objection - Foundation (602); 

Relevance (401, 402); 3M MIL 

No. 22

Re: [411:12-411:17]

Def Objection - 3M MIL No. 22; 

Misstates; Argumentative (403)

Re: [411:3-

411:11]

Def Objection -

Foundation 

(602); Relevance 

(401, 402); 3M 

MIL No. 22

SUSTAINED, 

as to [411:3-

411:6] 

OVERRULED, 

as to [411:8-

411:11]

Re: [411:12-

411:17]

Def Objection -

3M MIL No. 22; 

Misstates; 

Argumentative 

(403)

OVERRULED

412:1 - 413:2 Merkley, John 2-26-2020

 412 1 Q. In your binder, sir, from -- in your

 412 2 binder is Exhibit P922. I'll represent to you,

 412 3 sir, that the testimony in this case shows that

 412 4 there were purchases by the Army of Combat Arms in

 412 5 the late summer of 1999, August or so. Is that

 412 6 consistent with your knowledge?

 412 7 A. Once again, that --

 412 8 Q. I'm sorry, is that consistent with your

 412 9 knowledge, that the Army started purchasing the

 412 10 double-ended in late summer of 1999?

 412 11 A. I -- I really don't know. They were just

 412 12 coming out, and we didn't -- we had not purchased

 412 13 any at Ft. Drum until after the summer of 2000.

 412 14 Q. Got it.

 412 15 A. Okay. So, I don't know.

 412 16 Q. Whatever purchases happened before you

 412 17 first purchased them happened by others?

 412 18 A. Right.

 412 19 Q. Okay. This is an email from Mr. Berger

 412 20 to Brian Myers. It's addressed to Armand, and

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 58 of 106
Merkley, John 2-26-2020 58

 412 21 we've seen an Armand Dancer in some of the

 413 1 documents we've looked at today, correct, sir?

 413 2 A. Correct.

413:3 - 413:4 Merkley, John 2-26-2020

 413 3 Q. It's a draft email. I think that's the

 413 4 testimony and record evidence at this point.

413:5 - 413:14 Merkley, John 2-26-2020

 413 5 It recently occurred to us that we have

 413 6 no data on the actual version of the nonlinear

 413 7 earplug that we are now selling in the U.S., namely

 413 8 the dual-ended Combat Arms plug, did I read that

 413 9 reasonably correctly?

 413 10 A. Yes.

 413 11 Q. It says, therefore, we will be conducting

 413 12 REAT evaluations in the near future on both ends of

 413 13 the plug, do you see that, sir?

 413 14 A. Yes.

414:7 - 414:9 Merkley, John 2-26-2020

 414 7 Q. Okay. Would it concern you, sir, if the

 414 8 company was selling earplugs to the Army that it

 414 9 had not yet conduct -- conducted testing on?

Re: [414:7-414:11]

(602), Assumes

OVERRULED

414:11 - 414:11 Merkley, John 2-26-2020

 414 11 THE WITNESS: Yes.

Re: [414:7-414:11]

(602), Assumes

OVERRULED

414:13 - 414:18 Merkley, John 2-26-2020

 414 13 Q. This states that it recently occurred to

 414 14 us we that have no data on the actual version of

 414 15 the nonlinear earplug that we're now selling in the

 414 16 U.S., namely the dual-ended Combat Arms Earplug, do

 414 17 you see that?

 414 18 A. Yes.

423:19 - 424:2 Merkley, John 2-26-2020

 423 19 Q. Do you have knowledge sitting here today

 423 20 one way or the other whether the Combat Arms

 423 21 Version 2 was actually tested in the Johnson blast

 424 1 studies?

 424 2 A. No.

424:4 - 424:12 Merkley, John 2-26-2020

 424 4 There was some testimony on the defense

 424 5 exam about safety and protection of the yellow end,

 424 6 do you recall that examination, at certain blast

 424 7 exposure levels?

 424 8 A. Yes.

Re: [424:9-424:14]

(602, Assumes, Misstates

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 59 of 106
Merkley, John 2-26-2020 59

 424 9 Q. Okay. If Mr. Berger had determined that

 424 10 the company didn't have data to support a claim,

 424 11 that it was protective up to 190 dB, would that

 424 12 concern you?

424:14 - 425:3 Merkley, John 2-26-2020

 424 14 THE WITNESS: Yes.

 424 15 BY MR. BUCHANAN:

 424 16 Q. Would you want to know information, the

 424 17 company's conclusions of its examination of data

 424 18 with regard to the level of protection the Combat

 424 19 Arms Version 2 provided?

 424 20 A. Yes.

 424 21 Q. That would be important to you in making

 425 1 a proper assessment of whether you could safely use

 425 2 it in certain settings you were recommending it in,

 425 3 fair?

Re: [424:9-424:14]

(602, Assumes, Misstates

Re: [424:21-425:16]

(602, Assumes, Misstates

OVERRULED

425:5 - 425:7 Merkley, John 2-26-2020

 425 5 THE WITNESS: Yes.

 425 6 BY MR. BUCHANAN:

 425 7 Q. Or using it at all --

Re: [424:21-425:16]

(602, Assumes, Misstates

OVERRULED

425:10 - 425:14 Merkley, John 2-26-2020

 425 10 Q. -- right?

 425 11 A. Yes.

 425 12 Q. If the company determined that the Combat

 425 13 Arms, the yellow end, was not really protective for

 425 14 range use, is that something you'd want to know?

Re: [424:21-425:16]

(602, Assumes, Misstates

OVERRULED

425:16 - 425:16 Merkley, John 2-26-2020

 425 16 THE WITNESS: Yes.

Re: [424:21-425:16]

(602, Assumes, Misstates

OVERRULED

425:18 - 426:4 Merkley, John 2-26-2020

 425 18 Q. I take it in your -- in your review of

 425 19 materials, sir, you didn't find any communication

 425 20 from Mr. Berger or others at Aearo or 3M reflecting

 425 21 conclusions about the safety of the Combat Arms

 426 1 Version 2 for range use?

 426 2 MR. WASDIN: Objection to form.

 426 3 THE WITNESS: I did not, but, again, I

 426 4 didn't read all of the documents.

Re: [425:18-426:4]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 18, 21.

OVERRULED

426:6 - 426:14 Merkley, John 2-26-2020

 426 6 Q. Okay. To reframe my question a little,

 426 7 you didn't see any communication from Aearo at any

 426 8 point in time that we're really not so sure you

 426 9 should be using this on the range, anything like

Re: [426:11-426:14]

(602, Assumes, Misstates

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 60 of 106
Merkley, John 2-26-2020 60

 426 10 that?

 426 11 A. No, I didn't see anything like that.

 426 12 Q. If the company had reached that

 426 13 conclusion, is that something you'd want to know?

 426 14 A. Yes.

428:3 - 429:6 Merkley, John 2-26-2020

 428 3 Q. And what conference was that, sir?

 428 4 A. The National Hearing Conservation

 428 5 Association.

 428 6 Q. Okay. Did you run into any other folks

 428 7 from 3M at that conference?

 428 8 A. Yes. I ran into -- I'm sorry.

 428 9 MR. WASDIN: Nick Wasdin.

 428 10 THE WITNESS: Nick. Nick and just other

 428 11 representatives and occupational health

 428 12 professionals, Pegeen Smith I believe is her name.

 428 13 BY MR. BUCHANAN:

 428 14 Q. I'm --

 428 15 A. I don't --

 428 16 Q. We hadn't met before today, fair?

 428 17 A. Yeah.

 428 18 Q. You and I?

 428 19 A. No.

 428 20 Q. Okay. What was the occasion for you to

 428 21 meet Mr. Wasdin last week?

 429 1 A. At the -- the National Hearing

 429 2 Conservation Association. He was attending the

 429 3 conference.

 429 4 Q. Did -- do you understand Mr. Wasdin to be

 429 5 in the field of audiology?

 429 6 A. No.

Re: [428:3-429:6]

Def Objection - Relevance (401, 

402); Waste of Time (403)

Re: [428:3-

429:6]

Def Objection -

Relevance (401, 

402); Waste of 

Time (403)

OVERRULED

429:7 - 429:9 Merkley, John 2-26-2020

 429 7 Q. Or hearing conservation?

 429 8 A. And he didn't -- he didn't represent

 429 9 himself that way.

433:13 - 434:1 Merkley, John 2-26-2020

 433 13 BY MR. WASDIN:

 433 14 Q. LTC Merkley, I do have a couple of

 433 15 follow-up questions --

 433 16 A. Okay.

 433 17 Q. -- regarding the questions that

 433 18 Plaintiff's Counsel asked you.

Re: [433:13-434:1]

Improper counter; FRE 402; 

701/702; Plaintiff MIL #1, 16, 17, 

21

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 61 of 106
Merkley, John 2-26-2020 61

 433 19 First, you looked at some DoD -- is it

 433 20 the Center for Excellence or Hearing Center for

 433 21 Excellence? Am I saying that right?

 434 1 A. DoD Hearing Center of Excellence, yes.

434:2 - 434:13 Merkley, John 2-26-2020

 434 2 Q. Hearing Center of Excellence. You looked

 434 3 at some DoD materials that talk about hearing loss

 434 4 being preventable in the military, do you remember

 434 5 those?

 434 6 A. Yes.

 434 7 Q. I think you and I talked earlier about

 434 8 ways to prevent, or at least the 40-501

 434 9 regulations, on how someone should approach noise

 434 10 to give themselves the best chance of preventing

 434 11 hearing loss, do you remember those discussions we

 434 12 had?

 434 13 A. Yes.

Re: [434:2-434:13]

Plt Objection - improper counter 

designation per PTO 64

Re: [434:2-

434:13]

Plt Objection -

improper counter 

designation per 

PTO 64

SUSTAINED

Re: [434:2-434:13]

FRE 402/403; foundation; 

speculation; 602; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 21.

SUSTAINED

435:3 - 435:7 Merkley, John 2-26-2020

 435 3 Q. -- because I asked like basically the

 435 4 question backwards. Some noise is quiet enough

 435 5 that it's not dangerous even without hearing

 435 6 protection, right?

 435 7 A. Yes.

Re: [435:3-436:17]

Improper counter designation;

FRE 402/403; foundation; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802. Plaintiffs 

MIL #1, 2, 15,16, 17, 21.

SUSTAINED

435:8 - 435:21 Merkley, John 2-26-2020

 435 8 Q. Some levels of noise you can protect

 435 9 yourself against with a single-hearing protection

 435 10 device, right?

 435 11 A. Yes.

 435 12 Q. Some levels of noise are high enough that

 435 13 you would need two separate hearing protection

 435 14 devices together, right?

 435 15 A. Yes.

 435 16 Q. In order to prevent hearing loss, right?

 435 17 A. Yes.

 435 18 Q. And some noises are so high that the only

 435 19 way to prevent hearing loss is to either limit your

 435 20 time in them or not encounter them at all, right?

 435 21 A. Correct.

Re: [435:8-435:21]

Plt Objection - improper counter 

designation per PTO 64

Re: [435:8-

435:21]

Plt Objection -

improper counter 

designation per 

PTO 64

SUSTAINED

Re: [435:3-436:17]

Improper counter designation; 

FRE 402/403; foundation; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802. Plaintiffs 

MIL #1, 2, 15,16, 17, 21.

SUSTAINED

436:3 - 436:17 Merkley, John 2-26-2020

 436 3 Q. So, when we say hearing loss is

 436 4 preventable, we mean with one, with multiple

Re: [435:3-436:17]

Improper counter designation; 

FRE 402/403; foundation; 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 62 of 106
Merkley, John 2-26-2020 62

 436 5 hearing protection devices or by just by avoiding

 436 6 the noise in the first place, right?

 436 7 MR. BUCHANAN: Objection to the form and

 436 8 foundation.

 436 9 THE WITNESS: Correct.

 436 10 BY MR. WASDIN:

 436 11 Q. The materials you reviewed with

 436 12 Mr. Buchanan did not say that all hearing losses

 436 13 are preventable in the military by wearing the

 436 14 Combat Arms Version 2 on its own, right?

 436 15 MR. BUCHANAN: Objection to form and

 436 16 foundation.

 436 17 THE WITNESS: Correct.

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802. Plaintiffs 

MIL #1, 2, 15,16, 17, 21.

436:19 - 437:3 Merkley, John 2-26-2020

 436 19 Q. Okay. Mr. Buchanan also asked you a

 436 20 series of questions regarding a 3M advertisement, I

 436 21 believe, from 2013 that said the Combat Arms

 437 1 Version 2 had been found to be protective up to 190

 437 2 decibels, do you remember that?

 437 3 A. Yes.

Re: [436:19-437:3]

Plt Objection - 602; 611; 702; 

improper counter designation per 

PTO 64

Re: [436:19-437:3]

FRE 402/403; foundation; 

speculation; scope; 802. Plaintiffs 

MIL #1, 2, 15,16, 17, 18, 21.

SUSTAINED

438:4 - 439:17 Merkley, John 2-26-2020

 438 4 Q. If you flip to P1532.32, I think you'll

 438 5 find the ad you were discussing with Mr. Buchanan.

 438 6 A. Okay.

 438 7 Q. Looking at the second paragraph,

 438 8 Mr. Buchanan focused his questions on the sentence,

 438 9 the level-dependent technology used in the earplug,

 438 10 that's the Combat Arms Version 2, has been tested

 438 11 and found to be protective up to approximately 192

 438 12 dB for outdoor exposures, did I read that right?

 438 13 A. Yes.

 438 14 Q. I believe he asked you a question along

 438 15 the lines of, if the company knew that was

 438 16 incorrect, shouldn't they have told you or

 438 17 something like that. Do you remember his questions

 438 18 around this document?

 438 19 MR. BUCHANAN: Objection. Misstates it,

 438 20 but --

 438 21 THE WITNESS: Yes.

 439 1 MR. BUCHANAN: Form.

 439 2 BY MR. WASDIN:

 439 3 Q. Okay. Now, you and I earlier during my

Re: [438:4-439:17]

Improper counter designation; 

FRE 402/403; foundation; 

speculation; conjecture; 701/702 

improper opinion testimony; 

scope; 802, 805. Plaintiffs MIL #1, 

2, 15,16, 17, 18, 21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 63 of 106
Merkley, John 2-26-2020 63

 439 4 exam talked about a different document that was

 439 5 authored by the Army USACHPPM about a decade

 439 6 earlier that makes the exact same statement. Do

 439 7 you remember that, the Just the Facts document?

 439 8 MR. BUCHANAN: Objection. Objection to

 439 9 form.

 439 10 THE WITNESS: Yes.

 439 11 BY MR. WASDIN:

 439 12 Q. In the Just the Facts document the Army

 439 13 says, at 190 dB, there's an overall peak reduction

 439 14 of 25 dB. Testing at a U.S. military facility

 439 15 found this nonlinear earplug protective up to 190

 439 16 dB. Do you remember that?

 439 17 A. Yes.

440:6 - 441:8 Merkley, John 2-26-2020

 440 6 Q. Okay. So, when the Army was authoring

 440 7 the Just the Facts document, the Army had

 440 8 determined that testing at a U.S. military facility

 440 9 found this nonlinear earplug, the Combat Arms

 440 10 Earplug, protective up to 190 dB?

 440 11 MR. BUCHANAN: Objection to form.

 440 12 THE WITNESS: Yes.

 440 13 BY MR. WASDIN:

 440 14 Q. That's what the document says. And then

 440 15 ten years later, or nine years later, the exact

 440 16 same statement is in a 3M advertisement on the

 440 17 product, right?

 440 18 A. Yes.

 440 19 Q. And, indeed, if you look at the 3M ad,

 440 20 there's a citation on the end of that sentence,

 440 21 too, and it's to the Dan Johnson blast study?

 441 1 A. To the study, yes.

 441 2 Q. So, what 3M is doing in the ad is just

 441 3 repeating the Army's own interpretation of the

 441 4 Army's study that the Army had made almost a decade

 441 5 earlier, right?

 441 6 MR. BUCHANAN: Objection to form and

 441 7 foundation.

 441 8 THE WITNESS: Yes.

Re: [440:6-441:8]

Plt Objection - improper counter 

designation per PTO 64; 602; 611

Re: [440:6-

441:8]

Plt Objection -

improper counter 

designation per 

PTO 64; 602; 

611

SUSTAINED

Re: [440:6-441:8]

FRE 402/403; foundation; scope; 

conjecture; speculation; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 18, 21.

SUSTAINED

441:10 - 445:16 Merkley, John 2-26-2020

 441 10 Q. Okay. Mr. Buchanan asked you a lot of

 441 11 questions along the lines of the following: He

Re: [441:10-444:15]

Improper counter designation; 

FRE 402/403; foundation; scope; 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 64 of 106
Merkley, John 2-26-2020 64

 441 12 would represent to you what some other witness had

 441 13 said in a case, he may play you a clip, he may just

 441 14 tell it to you orally, and then ask you whether or

 441 15 not you had found any information to disagree with

 441 16 that. Do you remember those questions?

 441 17 A. Yes.

 441 18 Q. Let me tell you about some testimony he

 441 19 didn't mention to you. Elliott Berger has

 441 20 testified in this case that he had a meeting with

 441 21 Doug Ohlin and others at the United States Army at

 442 1 Aberdeen Proving Grounds in December of 1997.

 442 2 When you were doing your review of

 442 3 documents in this case, did you find anything that

 442 4 contradicted that?

 442 5 MR. BUCHANAN: Objection to form.

 442 6 THE WITNESS: That contradicted that he

 442 7 had a meeting?

 442 8 BY MR. WASDIN:

 442 9 Q. At Aberdeen Proving Grounds in December

 442 10 of 1997?

 442 11 A. I don't -- I didn't find anything related

 442 12 to that meeting.

 442 13 Q. You don't have any reason to disagree

 442 14 with it?

 442 15 A. I don't, no.

 442 16 Q. Okay. Mr. Berger testified that at that

 442 17 meeting, Doug Ohlin gave him a variety of

 442 18 specifications for what would become the Combat

 442 19 Arms Version 2. You don't have any reason to

 442 20 disagree with that, do you?

 442 21 MR. BUCHANAN: Objection to form.

 443 1 THE WITNESS: No.

 443 2 BY MR. WASDIN:

 443 3 Q. Mr. Berger testified that Doug Ohlin

 443 4 requested from him a dual-ended product that

 443 5 included the Ultra Fit tips of a single size and

 443 6 the ISL filter. You don't have any reason to

 443 7 disagree with that testimony, do you?

 443 8 MR. BUCHANAN: Objection to form.

 443 9 THE WITNESS: No.

 443 10 BY MR. WASDIN:

 443 11 Q. Now, you and I looked at some documents

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 18, 

21.

Re: [445:11-445:16]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802. Plaintiffs 

MIL #1, 2, 15,16, 17, 18, 21.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 65 of 106
Merkley, John 2-26-2020 65

 443 12 that included emails from Doug Ohlin in the April

 443 13 1999 time period, do you remember those?

 443 14 A. Yes.

 443 15 Q. And in those emails, Mr. Ohlin had found

 443 16 that the original production samples of that plug

 443 17 that were sent by Aearo were about a quarter of an

 443 18 inch too long and didn't fit into the military

 443 19 carrying case, do you remember those emails?

 443 20 A. Yes.

 443 21 Q. Subsequent to those emails, Aearo reduced

 444 1 the size, reduced the length of the Combat Arms

 444 2 Version 2 by a quarter of an inch.

 444 3 During your investigation of the

 444 4 materials in this case, did you find anything that

 444 5 contradicts that Aearo shortened the length of the

 444 6 Combat Arms Version 2 in response to Doug Ohlin's

 444 7 request?

 444 8 MR. BUCHANAN: Objection to form.

 444 9 Ambiguous.

 444 10 THE WITNESS: No.

 444 11 BY MR. WASDIN:

 444 12 Q. You don't have any reason to disagree

 444 13 with that, do you?

 444 14 MR. BUCHANAN: Leading.

 444 15 THE WITNESS: No.

 444 16 BY MR. WASDIN:

 444 17 Q. Now, additionally, Mr. Berger gave

 444 18 extensive testimony over a number of days regarding

 444 19 his conversations with Doug Ohlin in the 1999 and

 444 20 2000 time period about the company's internal

 444 21 testing.

 445 1 Mr. Buchanan asked you about 50 times

 445 2 whether or not you had seen anything that

 445 3 transmitted that testing to the government, and I

 445 4 think you said, no, that in your review, you didn't

 445 5 find any communication from Aearo transmitting the

 445 6 results of its internal testing to the government;

 445 7 am I right about that?

 445 8 A. You're right.

 445 9 MR. BUCHANAN: Objection to form.

 445 10 BY MR. WASDIN:

 445 11 Q. But you don't have any reason to disagree

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 66 of 106
Merkley, John 2-26-2020 66

 445 12 with Mr. Berger's testimony that he told Doug Ohlin

 445 13 about the company's internal testing while it was

 445 14 happening, do you?

 445 15 MR. BUCHANAN: Objection to form.

 445 16 THE WITNESS: No.

446:3 - 447:16 Merkley, John 2-26-2020

 446 3 Q. Now, your experience with the plug, when

 446 4 you used it, is that you got a seal, correct?

 446 5 A. Correct.

 446 6 Q. You didn't have any problem getting a

 446 7 seal with the Combat Arms Version 2, right?

 446 8 MR. BUCHANAN: Objection to form.

 446 9 THE WITNESS: No.

 446 10 BY MR. WASDIN:

 446 11 Q. So, in addition to -- that's -- that's a

 446 12 piece of questioning by Mr. Buchanan that you

 446 13 actually do have a reason to disagree with, right?

 446 14 MR. BUCHANAN: Objection to form.

 446 15 Misstates the testimony.

 446 16 BY MR. WASDIN:

 446 17 Q. Your own personal experience is contrary

 446 18 to his representation, right?

 446 19 MR. BUCHANAN: Objection to form.

 446 20 THE WITNESS: Correct.

 446 21 BY MR. WASDIN:

 447 1 Q. Okay. I believe you mentioned in passing

 447 2 to Mr. Buchanan, and he cut you off, that you

 447 3 recalled at some point seeing some testing where

 447 4 the flanges had been folded back on the plug, am I

 447 5 remembering that right?

 447 6 MR. BUCHANAN: Objection to form.

 447 7 THE WITNESS: That I had seen -- yes.

 447 8 BY MR. WASDIN:

 447 9 Q. What was that testing?

 447 10 A. I -- I don't recall what the testing was.

 447 11 Q. Do you remember --

 447 12 A. I -- I don't remember. I -- I just

 447 13 recall seeing testing or some document, I don't

 447 14 remember if it was in the DOJ documents or where,

 447 15 that they had done testing with flanges folded

 447 16 forward and flanges folded backward.

Re: [446:3-447:16]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 18, 

21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 67 of 106
Merkley, John 2-26-2020 67

452:12 - 454:13 Merkley, John 2-26-2020

 452 12 Q. First, we have test data from a variety

 452 13 of branches of the military that show that the plug

 452 14 provides reasonable attenuation or good attenuation

 452 15 under a variety of different circumstances, right?

 452 16 MR. BUCHANAN: Objection to form and

 452 17 foundation. Vague.

 452 18 THE WITNESS: Yes.

 452 19 BY MR. WASDIN:

 452 20 Q. Second, you have personal experience with

 452 21 the plug, and for you, it worked well?

 453 1 A. Yes.

 453 2 MR. BUCHANAN: Objection to form.

 453 3 BY MR. WASDIN:

 453 4 Q. Third, we reviewed a number of success

 453 5 stories from other members of the military who

 453 6 served in Iraq who said that the plug worked for

 453 7 them, too, right?

 453 8 A. Yes.

 453 9 Q. Third, you treated patients in Iraq, and

 453 10 your experience was those that didn't use a plug

 453 11 had hearing loss, and those that did use a hearing

 453 12 protector, like the CAEv2, did not, right?

 453 13 MR. BUCHANAN: Objection. Form.

 453 14 THE WITNESS: Correct.

 453 15 BY MR. WASDIN:

 453 16 Q. Mr. Buchanan walked through a number of

 453 17 documents, training materials that were written by

 453 18 the Army on the Combat Arms Version 2, right?

 453 19 A. Yes.

 453 20 Q. And he asked you for each, did it mention

 453 21 folding back the flanges. Do you remember those

 454 1 questions?

 454 2 A. Yes.

 454 3 Q. Now, there are some Army training

 454 4 materials that do mention folding back the flanges,

 454 5 right?

 454 6 MR. BUCHANAN: Objection. Form.

 454 7 THE WITNESS: Yes.

 454 8 BY MR. WASDIN:

 454 9 Q. Indeed, the wallet card, which I think

 454 10 was the principal training material, has a picture

Re: [452:12-454:14]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 18, 

21.

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 68 of 106
Merkley, John 2-26-2020 68

 454 11 of the plug with the flanges rolled back on it,

 454 12 right?

 454 13 A. Yes.

455:1 - 455:12 Merkley, John 2-26-2020

 455 1 Q. But your experience was, regardless of

 455 2 what a particular document did or did not say, that

 455 3 in the 2001 to 2005 time period, Doug Ohlin

 455 4 instructed you and other Army audiologists to fold

 455 5 back the flanges as needed to get a good fit,

 455 6 right?

 455 7 MR. BUCHANAN: Objection to form.

 455 8 THE WITNESS: Yes.

 455 9 BY MR. WASDIN:

 455 10 Q. And he didn't limit that instruction to

 455 11 any particular ear -- ear canal size, right?

 455 12 A. I don't recall that, no.

Re: [455:1-455:12]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802; 805; 

improper bolstering. Plaintiffs 

MIL #1, 2, 15,16, 17, 18, 21.

SUSTAINED

456:2 - 456:20 Merkley, John 2-26-2020

 456 2 Q. Now, you told me earlier that all

 456 3 preformed earplugs are susceptible to loosening,

 456 4 right?

 456 5 A. Yes.

 456 6 Q. That's a well-known phenomenon, right?

 456 7 A. Yes.

 456 8 MR. BUCHANAN: Objection to form.

 456 9 BY MR. WASDIN:

 456 10 Q. So, users of the Combat Arms Version 2,

 456 11 at least the audiology community, would know, like

 456 12 other preformed earplugs, it could be susceptible

 456 13 to loosening, right?

 456 14 MR. BUCHANAN: Objection. Form.

 456 15 Foundation. Well beyond the witness.

 456 16 THE WITNESS: Yes.

 456 17 BY MR. WASDIN:

 456 18 Q. Yourself included, right?

 456 19 MR. BUCHANAN: Objection to form.

 456 20 THE WITNESS: Yes.

Re: [456:2-456:20]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802; 805. 

Plaintiffs MIL #1, 2, 15,16, 17, 18, 

21.

SUSTAINED

458:2 - 459:1 Merkley, John 2-26-2020

 458 2 Q. I'll represent to you some testimony

 458 3 given in this case. Mr. Berger said that the

 458 4 concept of imperceptible loosening is a phenomenon

 458 5 that's limited to the REAT chamber because there

 458 6 are no auditory clues in a silent room. Do you

Re: [458:2-459:1]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 602; 

701/702 improper opinion

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 69 of 106
Merkley, John 2-26-2020 69

 458 7 follow that logic?

 458 8 MR. BUCHANAN: Objection to form.

 458 9 THE WITNESS: Yes.

 458 10 BY MR. WASDIN:

 458 11 Q. And in a silent room that had no auditory

 458 12 external clues, if you lost your seal on a plug,

 458 13 you might not notice it, right?

 458 14 MR. BUCHANAN: Objection to form and

 458 15 foundation.

 458 16 THE WITNESS: Correct.

 458 17 BY MR. WASDIN:

 458 18 Q. But in the real world, particularly in a

 458 19 combat setting or in military training, if you lose

 458 20 your seal on a plug, you will notice it?

 458 21 MR. BUCHANAN: Objection. Foundation.

 459 1 THE WITNESS: Generally, yes.

testimony; scope; 802. Plaintiffs 

MIL #1, 2, 15,16, 17, 18, 21.

459:6 - 460:5 Merkley, John 2-26-2020

 459 6 Q. I have one or two final questions in my

 459 7 minute. Mr. Buchanan asked you, did anybody send

 459 8 you the so-called flange memo that discusses how

 459 9 folding back the flanges impacted the results of

 459 10 REAT testing at Aearo Company, do you remember that

 459 11 question?

 459 12 A. Yes.

 459 13 Q. And I think you said, no, no one sent me

 459 14 the memo, right?

 459 15 A. Correct.

 459 16 Q. But if the issue in the memo, the central

 459 17 issue in the memo was that for some people folding

 459 18 back the flanges could benefit them to get a good

 459 19 fit, that was information you already had, right?

 459 20 MR. BUCHANAN: Objection to form.

 459 21 Misstates the document.

 460 1 THE WITNESS: Yes.

 460 2 MR. BUCHANAN: Foundation.

 460 3 THE WITNESS: Depending on when that

 460 4 information was made available. I was made aware

 460 5 of it in 2001 or thereabouts.

Re: [459:6-460:5]

Plt Objection - 602; 611; 

miststates the document

Re: [459:6-

460:5]

Plt Objection -

602; 611; 

miststates the 

document

OVERRULED

Re: [459:6-460:12]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 701/702 

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 18, 21.

SUSTAINED

460:7 - 460:12 Merkley, John 2-26-2020

 460 7 Q. Okay. But as of 2001, information that

 460 8 for some people they could benefit by folding back

 460 9 the flanges on the opposite side of the plug, you

Re: [459:6-460:12]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 701/702 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 70 of 106
Merkley, John 2-26-2020 70

 460 10 had that information as of 2001?

 460 11 MR. BUCHANAN: Objection to form.

 460 12 THE WITNESS: Yes.

improper opinion testimony; 

scope; 802. Plaintiffs MIL #1, 2, 

15,16, 17, 18, 21.

481:7 - 481:9 Merkley, John 2-26-2020

 481 7 Q. If the company had manipulated testing

 481 8 for the Combat Arms, is that something you'd want

 481 9 to know?

Re: [481:7-482:15]

Def Objection - Misstates, 

Argumentative (611, 403)

Re: [481:7-

482:15]

Def Objection -

Misstates, 

Argumentative 

(611, 403)

OVERRULED

481:11 - 481:14 Merkley, John 2-26-2020

 481 11 THE WITNESS: Yes.

 481 12 BY MR. BUCHANAN:

 481 13 Q. And you'd want to know early enough to

 481 14 make a difference in a decision to use it, right?

Re: [481:7-482:15]

Def Objection - Misstates, 

Argumentative (611, 403)

Re: [481:7-

482:15]

Def Objection -

Misstates, 

Argumentative 

(611, 403)

OVERRULED

481:16 - 481:19 Merkley, John 2-26-2020

 481 16 THE WITNESS: Yes.

 481 17 BY MR. BUCHANAN:

 481 18 Q. Not 16 years later or 19 years later,

 481 19 fair?

Re: [481:7-482:15]

Def Objection - Misstates, 

Argumentative (611, 403)

Re: [481:7-

482:15]

Def Objection -

Misstates, 

Argumentative 

(611, 403)

OVERRULED

481:21 - 482:6 Merkley, John 2-26-2020

 481 21 THE WITNESS: Sure. Fair.

 482 1 BY MR. BUCHANAN:

 482 2 Q. I take it the first you learned about

 482 3 this issue with manipulating testing or

 482 4 misrepresenting test results is in connection with

 482 5 your role in the litigation at this point; is that

 482 6 fair?

Re: [481:7-482:15]

Def Objection - Misstates, 

Argumentative (611, 403)

Re: [481:7-

482:15]

Def Objection -

Misstates, 

Argumentative 

(611, 403)

OVERRULED

482:8 - 482:13 Merkley, John 2-26-2020

 482 8 THE WITNESS: Yes.

 482 9 BY MR. BUCHANAN:

 482 10 Q. That had not been shared with you by

 482 11 anybody at 3M at any point from 2000 until the time

 482 12 you got involved on behalf of the Army in this

 482 13 litigation, fair?

Re: [481:7-482:15]

Def Objection - Misstates, 

Argumentative (611, 403)

Re: [481:7-

482:15]

Def Objection -

Misstates, 

Argumentative 

(611, 403)

OVERRULED

482:15 - 482:15 Merkley, John 2-26-2020

 482 15 THE WITNESS: Yes.

Re: [481:7-482:15]

Def Objection - Misstates, 

Argumentative (611, 403)

Re: [481:7-

482:15]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 71 of 106
Merkley, John 2-26-2020 71

Misstates, 

Argumentative 

(611, 403)

OVERRULED

482:17 - 484:14 Merkley, John 2-26-2020

 482 17 Q. I'll pass to you, sir, I'm sorry, P1521.

 482 18 There were a lot of questions about your awareness

 482 19 of any evidence that showed a problem or didn't

 482 20 show a problem with the Combat Arms.

 482 21 This is a memorandum that was produced to

 483 1 us by the government in the last few weeks. It's

 483 2 from the Department of the Air Force Headquarters,

 483 3 United States Air Force, Washington, D.C., from COL

 483 4 J. Vietas, do you see that, sir?

 483 5 A. Yes.

 483 6 Q. Do you know him?

 483 7 A. I don't.

 483 8 Q. Okay. It talks about subject removal of

 483 9 3M dual-ended Combat Arms Earplugs from inventory,

 483 10 and he identifies a national item identification

 483 11 number, do you see that, sir?

 483 12 A. Yes.

 483 13 Q. Okay. It says, please verify with all

 483 14 shops on the Hearing Conservation Program and all

 483 15 shops that use hearing protection that any 3M

 483 16 dual-ended Combat earplugs are not being used for

 483 17 hearing protection purposes, do you see that, sir?

 483 18 A. Yes.

 483 19 Q. These earplugs were found to be

 483 20 defective, do you see that, sir?

 483 21 A. Yes.

 484 1 Q. The Air Force stopped purchasing these

 484 2 items from 3M in 2016; however, inventory may

 484 3 remain. Did I read that correctly?

 484 4 A. Yes.

 484 5 Q. Had you seen this before?

 484 6 A. I believe I have seen it. I -- I don't

 484 7 recall when I -- it actually came to me,

 484 8 but --

 484 9 Q. Okay. And were you part of the process

 484 10 through which they were found to be defective by

 484 11 the airport -- by the Air Force?

Re: [484:13-484:16]

-602

SUSTAINED 

as to 483:19-

21; 484:9-16. 

Otherwise 

OVERRULED.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 72 of 106
Merkley, John 2-26-2020 72

 484 12 A. No. No.

 484 13 Q. Fair to say that determination was

 484 14 reached independent of you?

484:16 - 484:16 Merkley, John 2-26-2020

 484 16 THE WITNESS: Yes.

Re: [484:13-484:16]

-602

SUSTAINED 

487:7 - 488:1 Merkley, John 2-26-2020

 487 7 Q. Would it surprise you, sir, if maybe you

 487 8 have more experience than the average soldier in

 487 9 discerning --

 487 10 A. No, it wouldn't surprise me that I have

 487 11 more experience.

 487 12 Q. And, perhaps, more knowledge into whether

 487 13 loosening is detectable or not?

 487 14 MR. WASDIN: Objection to form and

 487 15 foundation.

 487 16 THE WITNESS: Well, I don't -- I don't

 487 17 know about that. I -- I wouldn't say that I have

 487 18 more knowledge on determining loosening, because

 487 19 once you've experienced a good fit and -- and

 487 20 you're not getting the -- the same attenuation,

 487 21 generally, you know it's -- there's -- there's an

 488 1 issue, and it just needs to be reseated.

Re: [487:7-488:1]

Improper counter designation; 

FRE 402/403; foundation; scope; 

conjecture; speculation; 602; 

701/702 improper opinion 

testimony; scope; 802. Plaintiffs 

MIL #1, 2, 15,16, 17, 18, 21.

SUSTAINED

495:13 - 495:14 Merkley, John 2-26-2020

 495 13 MR. BUCHANAN: Thank you. I have no

 495 14 further questions.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 73 of 106
Ohlin, Douglas 4-24-2013 (Moldex)

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 74 of 106
Ohlin, Douglas 4-24-2013 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

6:7 - 6:10 Ohlin, Douglas 4-24-2013

 6 7 Q. Good morning. Please state your full

 6 8 name and spell it for the record.

 6 9 A. Douglas Warren Ohlin. D-O-U-G-L-A-S,

 6 10 W-A-R-R-E-N, O-H-L-I-N.

Re: [6:7-6:10]

Global Objection to all 

designations in this transcript 

subject to resolution of defendant’s

objections to all Moldex transcripts

OVERRULED

8:13 - 8:21 Ohlin, Douglas 4-24-2013

 8 13 So let's begin a little bit with your

 8 14 personal background.

 8 15 You attended college, I assume?

 8 16 A. Uh-huh.

 8 17 Q. And where --

 8 18 A. Yes, I did.

 8 19 Q. And where was that?

 8 20 A. I attended Catonsville Community College,

 8 21 Towson State College, and Ohio State.

Re: [8:13-8:21]

Improper designation, 401/402, 

403

SUSTAINED

10:13 - 10:22 Ohlin, Douglas 4-24-2013

 10 13 Q. What did degree did you receive from

 10 14 Towson State?

 10 15 A. A BS degree.

 10 16 Q. In what?

 10 17 A. Bachelor of science in speech pathology.

 10 18 Q. What does the speech pathology program

 10 19 entail at Towson State?

 10 20 A. At that time, it -- the concentration at

 10 21 that time was on articulation problems of children

 10 22 stuttering.

Re: [10:13-10:22]

Improper designation, 401/402, 

403

SUSTAINED

12:23 - 13:8 Ohlin, Douglas 4-24-2013

 12 23 Q. So in 1967, the fall, you said you began

 12 24 at Ohio State?

 12 25 A. Uh-huh.

 13 1 Q. And what program was that?

 13 2 A. Speech and hearing science.

 13 3 Q. Did you -- did you graduate from that

 13 4 program?

 13 5 A. Yeah, I got a master's and I followed up

 13 6 with a Ph.D.

 13 7 Q. When did you receive your master's?

 13 8 A. '69.

13:12 - 13:14 Ohlin, Douglas 4-24-2013

 13 12 Q. And when did you receive your -- your

Re: [13:12-13:14]

Improper designation, 401/402

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 75 of 106
Ohlin, Douglas 4-24-2013 3

 13 13 Ph.D.?

 13 14 A. 1972.

16:6 - 16:11 Ohlin, Douglas 4-24-2013

 16 6 BY MR. HILL:

 16 7 Q. Well, what aspects of your dissertation

 16 8 related to hearing?

 16 9 A. Well, they had to hear the stop

 16 10 consonants, and they had to be able to distinguish

 16 11 between 'em.

Re: [16:3-16:11]

Improper designation, 401/402

SUSTAINED

16:25 - 17:7 Ohlin, Douglas 4-24-2013

 16 25 Q. Did -- did you take any classes -- did

 17 1 you take any classes after you received your master's,

 17 2 while working on your Ph.D., related to hearing

 17 3 generally?

 17 4 A. Yes.

 17 5 Q. And what classes were those?

 17 6 A. We had -- we had some hearing

 17 7 conservation.

Re: [16:25-17:7]

Improper designation 

SUSTAINED

19:8 - 19:12 Ohlin, Douglas 4-24-2013

 19 8 Q. So was this your first job after

 19 9 receiving your Ph.D., then?

 19 10 A. I worked for a year in the public school

 19 11 system as the audiologist of the Columbus Public

 19 12 School System.

Re: [19:8-19:12]

Improper designation, 401/402, 

403

SUSTAINED

20:5 - 20:6 Ohlin, Douglas 4-24-2013

 20 5 Q. During your time with the government,

 20 6 were you ever not a civilian employee?

Re: [20:5-20:6]

Improper designation, 401/402, 

403

SUSTAINED

20:8 - 21:24 Ohlin, Douglas 4-24-2013

 20 8 A. I spent three years in the Navy. Is that

 20 9 what you're talking about?

 20 10 BY MR. HILL:

 20 11 Q. Yeah, when -- when was that?

 20 12 A. That was upon graduation from high

 20 13 school.

 20 14 Q. And what time -- when was that?

 20 15 A. That was 1959 to 1962.

 20 16 Q. What did you do in the Navy?

 20 17 A. I was on the honor guard detail in

 20 18 Washington, D.C., for the first part of my tour and

 20 19 second part of my tour I was on a submarine rescue

 20 20 vessel out of New London, Connecticut.

 20 21 Q. Did those duties have anything to do with

Re: [20:8-21:24]

Improper designation, 401/402, 

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 76 of 106
Ohlin, Douglas 4-24-2013 4

 20 22 hearing protection?

 20 23 A. No.

 20 24 Q. Had anything to do with audiology?

 20 25 A. No, but -- no.

 21 1 Q. "No, but"?

 21 2 A. Well, I lost some hearing in the Navy.

 21 3 Q. Oh.

 21 4 A. I wish I had known about hearing

 21 5 protection.

 21 6 Q. So now we are in -- in 1972, July 3rd,

 21 7 you become a audiologist for the Army. Is there a

 21 8 reason you remember that date so specific?

 21 9 A. Yeah, she -- the gal got me in just

 21 10 before the 4th of July so I could have a paid holiday.

 21 11 I thought it was pretty nice of her.

 21 12 Q. What -- what were your responsibilities

 21 13 as an audiologist at that time?

 21 14 A. When I was hired?

 21 15 Q. Yes.

 21 16 A. A lot of it was learning about the

 21 17 military, the Army, and the basics of military hearing

 21 18 conservation.

 21 19 Q. So, now, how long do you have that title?

 21 20 A. I was -- I think I was made program

 21 21 manager in about 1987, as I recall. I'm not clear on

 21 22 -- on the date.

 21 23 Q. So we're talking approximately 15 years?

 21 24 A. Uh-huh.

22:2 - 22:2 Ohlin, Douglas 4-24-2013

 22 2 THE WITNESS: Yes.

Re: [22:2-22:2]

Improper designation, 401/402, 

403

SUSTAINED

22:11 - 22:16 Ohlin, Douglas 4-24-2013

 22 11 Q. So you -- you said that when you joined

 22 12 you joined as an audiologist.

 22 13 A. Yeah.

 22 14 Q. And then in 1987, you believe you were

 22 15 made a program manager.

 22 16 A. Uh-huh.

23:14 - 23:15 Ohlin, Douglas 4-24-2013

 23 14 Q. How were you trying to prevent hearing

 23 15 loss at the Army?

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 77 of 106
Ohlin, Douglas 4-24-2013 5

23:17 - 23:25 Ohlin, Douglas 4-24-2013

 23 17 A. We were trying to educate people as to

 23 18 what the hazards were. We were trying to get the

 23 19 right hearing protectors on the -- on the individuals;

 23 20 ensure that they knew how to use them. We were

 23 21 monitoring their hearing. We were encouraging

 23 22 engineering control measures out in the field, trying

 23 23 to identify places where it might be feasible. We

 23 24 were monitoring the posting of hazards. We were

 23 25 developing health education materials.

24:1 - 24:9 Ohlin, Douglas 4-24-2013

 24 1 BY MR. HILL:

 24 2 Q. And when you say you were trying to get

 24 3 "the right hearing protectors," what do you mean by

 24 4 that?

 24 5 A. Well, you -- you don't want to

 24 6 overprotect them. You don't want 'em to be wearing

 24 7 double hearing protection in -- in instances where

 24 8 they might be too isolated and might pose a

 24 9 communication issue.

25:9 - 25:17 Ohlin, Douglas 4-24-2013

 25 9 Q. You said that you also were encouraging

 25 10 engineering control measures. What do you mean by

 25 11 that?

 25 12 A. Well, if you can engineer out the noise,

 25 13 you don't have to have a hearing conservation program.

 25 14 That's the ultimate. But we can't make a quiet tank

 25 15 or a quiet 155 Howitzer, so we were stuck with most of

 25 16 the noise. Sometimes in the industrial environment,

 25 17 you saw something that looked feasible.

Re: [25:9-25:17]

Improper designation

SUSTAINED

26:8 - 26:16 Ohlin, Douglas 4-24-2013

 26 8 Q. You had mentioned that when you were

 26 9 hired, it was the U.S. Army Environmental Hygiene

 26 10 Agency.

 26 11 A. Uh-huh.

 26 12 Q. Did that organization change its name?

 26 13 A. Yeah. It morphed -- they expanded their

 26 14 mission, and it became the U.S. Army Center for Health

 26 15 Promotion and Preventive Medicine. And after I left,

 26 16 they changed again.

Re: [26:8-26:16]

Improper designation, 401/402

SUSTAINED 

28:12 - 28:14 Ohlin, Douglas 4-24-2013

 28 12 Q. Were you more involved with creating

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 78 of 106
Ohlin, Douglas 4-24-2013 6

 28 13 specifications for hearing protection products?

 28 14 A. I --

28:16 - 28:16 Ohlin, Douglas 4-24-2013

 28 16 A. -- did not create specifications.

30:19 - 31:1 Ohlin, Douglas 4-24-2013

 30 19 Q. Were people who were working for you

 30 20 providing input into the specifications?

 30 21 A. It was a group effort sometimes. When

 30 22 something came in, it was passed -- passed around.

 30 23 Everybody would get a chop on it.

 30 24 Q. And who -- who was providing the input in

 30 25 addition to yourself?

 31 1 A. Other staff members.

Re: [30:19-31:1]

Improper designation

OVERRULED

31:6 - 31:13 Ohlin, Douglas 4-24-2013

 31 6 Q. How long were -- how long were you

 31 7 program manager?

 31 8 A. Up to -- up to June 2007.

 31 9 Q. What happened in June 2007?

 31 10 A. I retired.

 31 11 Q. And did you have a job after that?

 31 12 A. I was hired by Aearo. I think my first

 31 13 labor invoice was October of that year.

31:15 - 31:18 Ohlin, Douglas 4-24-2013

 31 15 So you were talking about earplug specs

 31 16 from medical command. What years are you talking

 31 17 about?

 31 18 A. I don't recall.

54:11 - 54:14 Ohlin, Douglas 4-24-2013

 54 11 Q. Dr. Ohlin, did your department track

 54 12 soldier hearing loss and correlate it with specific

 54 13 hearing protectors?

 54 14 A. We tried to do that, yeah.

Re: [54:11-54:14]

Improper designation

SUSTAINED

60:8 - 60:11 Ohlin, Douglas 4-24-2013

 60 8 Q. Earlier you had said you tried to

 60 9 correlate different hearing protectors to the hearing

 60 10 loss of soldiers. Did you succeed?

 60 11 A. Not very well.

60:14 - 60:24 Ohlin, Douglas 4-24-2013

 60 14 Q. When you say "not very well," what do you

 60 15 mean?

 60 16 A. Well, there's a -- there turned out to be

 60 17 a little bit of a difference between type issued and

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 79 of 106
Ohlin, Douglas 4-24-2013 7

 60 18 type used and had some trouble pinning that down

 60 19 sometimes.

 60 20 Q. What -- what is the difference you just

 60 21 referred to?

 60 22 A. Well, you may issue someone a particular

 60 23 earplug in the clinic, but out in the field, they may

 60 24 choose to use something else.

61:5 - 61:7 Ohlin, Douglas 4-24-2013

 61 5 BY MR. HILL:

 61 6 Q. Do you recall which products were

 61 7 tracked?

EXCLUDED

61:10 - 61:20 Ohlin, Douglas 4-24-2013

 61 10 A. It would be the -- the hearing protectors

 61 11 listed on the audiogram.

 61 12 BY MR. HILL:

 61 13 Q. And which would those have been?

 61 14 A. I'm not gonna remember 'em all, but there

 61 15 was helmets, the aviator's helmet, the tanker's

 61 16 helmet, the comfit triple flange, the V-51-R foam

 61 17 plug. That might have just been a generic disposable.

 61 18 And eventually, the Combat Arms Earplug made it onto

 61 19 the forum too and the -- and, of course, there's

 61 20 always the other.

Re: [61:10-61:20]

Improper designation, 401/402, 

403

SUSTAINED

62:1 - 62:5 Ohlin, Douglas 4-24-2013

 62 1 When you say the helmets, like the

 62 2 helmets, tanker's helmet, what do you mean by that?

 62 3 A. CVC helmet. It had a head bump

 62 4 protection and a built-in hearing protector, and it

 62 5 was sized.

Re: [62:1-62:5]

Improper designation, 401/402, 

403

SUSTAINED

64:17 - 64:24 Ohlin, Douglas 4-24-2013

 64 17 Q. Now, the muff products that you were

 64 18 talking about that were their own category, that is,

 64 19 the ones not part of the hearing, were those passive

 64 20 muffs?

 64 21 A. Yeah.

 64 22 Q. Were those all passive muffs?

 64 23 A. As far as -- yeah, the -- yeah.

 64 24 Q. Did this study reach any conclusions?

Re: [64:17-64:24]

Improper designation, 401/402

SUSTAINED

65:2 - 65:5 Ohlin, Douglas 4-24-2013

 65 2 A. It wasn't a study. It just -- ran the

 65 3 program a couple times to see if we could -- see if we

Re: [65:2-65:5]

Improper designation, 401/402

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 80 of 106
Ohlin, Douglas 4-24-2013 8

 65 4 could get anything out of it. I didn't trust the

 65 5 data.

65:7 - 65:20 Ohlin, Douglas 4-24-2013

 65 7 Q. And why didn't you trust the data?

 65 8 A. Because there was an apparent difference

 65 9 between type issued and type used.

 65 10 Q. And when you say that, what -- what do

 65 11 you mean?

 65 12 A. Like I said before, they might be issued

 65 13 something in the clinic, but they may be using

 65 14 something entirely different out in the field. You

 65 15 couldn't always know.

 65 16 Q. You mean a totally different product in

 65 17 the field?

 65 18 A. (Shook head.)

 65 19 Q. Is that a "yes"?

 65 20 A. Yes.

Re: [65:7-65:20]

Relevance, 403

SUSTAINED

67:9 - 67:11 Ohlin, Douglas 4-24-2013

 67 9 Q. Do you recall any products that were

 67 10 being used in the field that were different than what

 67 11 was issued?

Re: [67:9-67:11]

Improper designation

SUSTAINED

67:14 - 67:20 Ohlin, Douglas 4-24-2013

 67 14 A. Sometimes we'd see custom molded plugs

 67 15 out there. Although we approved them for cases where

 67 16 people couldn't be fitted with anything else, some

 67 17 units would take it upon themselves to get everybody

 67 18 custom molded plugs, which was a -- if they had the

 67 19 money, fine, but it was kind of cost prohibitive and

 67 20 we didn't see any.

Re: [67:14-67:20]

Improper designation

SUSTAINED

74:20 - 74:22 Ohlin, Douglas 4-24-2013

 74 20 Q. Did you have a particular -- did you have

 74 21 contacts at the different vendors who you worked with

 74 22 while you were at the military?

75:1 - 75:2 Ohlin, Douglas 4-24-2013

 75 1 Q. That is, were there people who you

 75 2 interfaced with at the various vendors?

75:5 - 75:13 Ohlin, Douglas 4-24-2013

 75 5 A. I went to -- I had two primary sources

 75 6 for technical information: One was Elliott Berger at

 75 7 Aearo and the other was Dr. Paul Michael at Penn

 75 8 State. Early in my career, I depended on them for a

 75 9 lot of technical input.

Re: [75:5-75:17]

Def Objection - Incomplete (611, 

403)

Re: [75:5-

75:17]

Def Objection -

Incomplete 

(611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 81 of 106
Ohlin, Douglas 4-24-2013 9

 75 10 BY MR. HILL:

 75 11 Q. When you say "technical input," what do

 75 12 you mean?

 75 13 A. Things -- things I didn't know.

75:19 - 76:6 Ohlin, Douglas 4-24-2013

 75 19 Q. And when did you first meet Elliott

 75 20 Berger?

 75 21 A. I don't recall.

 75 22 Q. But he was still at -- let -- as a

 75 23 threshold matter, the pronunciation of A-E-A-R-O,

 75 24 that's Aearo; is that right? Or how -- is that Aearo

 75 25 Company?

 76 1 A. That sounds right to me. I don't know.

 76 2 Q. Okay. So I may -- I may say Aearo, just

 76 3 'cause that's how I've always thought of it. I mean,

 76 4 I think what you're talking about is Aearo.

 76 5 So you're saying that Elliott Berger was

 76 6 at Aearo when you first met him?

Re: [76:5-76:9]

Def Objection - Foundation (602); 

Misstates (611, 403)

Re: [76:5-76:9]

Def Objection -

Foundation 

(602); Misstates 

(611, 403)

OVERRULED

76:9 - 76:18 Ohlin, Douglas 4-24-2013

 76 9 A. Yes.

 76 10 BY MR. HILL:

 76 11 Q. But you don't recall when you first --

 76 12 A. No.

 76 13 Q. -- met him?

 76 14 A. No, no.

 76 15 Q. Was it before you were a program manager?

 76 16 A. Yes, I believe it was.

 76 17 Q. So that would be prior to 1986?

 76 18 A. 1987.

Re: [76:5-76:9]

Def Objection - Foundation (602); 

Misstates (611, 403)

Re: [76:5-76:9]

Def Objection -

Foundation 

(602); Misstates 

(611, 403)

OVERRULED

76:19 - 76:20 Ohlin, Douglas 4-24-2013

 76 19 Q. 1987. Prior to 1987.

 76 20 A. If that date is correct.

77:9 - 77:18 Ohlin, Douglas 4-24-2013

 77 9 Q. Other than Mr. Berger, was there anyone

 77 10 else at Aearo who you would speak to?

 77 11 A. No.

 77 12 Q. What about Doug Moses?

 77 13 A. Oh. Yeah. What time frames are -- are

 77 14 we talking about now?

 77 15 Q. Any -- any time frame during your -- your

 77 16 time working for the military.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 82 of 106
Ohlin, Douglas 4-24-2013 10

 77 17 A. Okay. Yeah, Doug -- Doug Moses, I met

 77 18 him at the -- at conferences.

80:1 - 80:3 Ohlin, Douglas 4-24-2013

 80 1 BY MR. HILL:

 80 2 Q. Do you recall generally what you talked

 80 3 about with him?

Re: [80:1-80:3]

Improper designation

OVERRULED

80:5 - 80:6 Ohlin, Douglas 4-24-2013

 80 5 A. Generally would be in the area of hearing

 80 6 protection.

Re: [80:5-80:6]

Improper designation

OVERRULED

80:21 - 80:25 Ohlin, Douglas 4-24-2013

 80 21 Q. Did you ever speak to Mr. Berger about

 80 22 the Combat Arms Earplug?

 80 23 A. Yes.

 80 24 Q. And what did you talk to him about that

 80 25 product?

81:2 - 81:7 Ohlin, Douglas 4-24-2013

 81 2 A. I don't remember the specifics of the

 81 3 conversation, but it had to do with the filter that

 81 4 was being developed by Dr. Armand Dancer and his

 81 5 colleagues at the French-German Institute.

 81 6 BY MR. HILL:

 81 7 Q. What about the filter?

81:9 - 81:10 Ohlin, Douglas 4-24-2013

 81 9 A. That they had come up with a -- a filter

 81 10 that could function as a non-linear hearing protector.

81:21 - 81:22 Ohlin, Douglas 4-24-2013

 81 21 Q. What about Mr. Moses? What did you speak

 81 22 to him about when you were working for the military?

81:25 - 81:25 Ohlin, Douglas 4-24-2013

 81 25 A. The Combat Arms Earplug probably.

87:1 - 87:18 Ohlin, Douglas 4-24-2013

 87 1 Q. Did you later go to work for Aearo?

 87 2 A. Yes.

 87 3 Q. And when was that?

 87 4 A. First labor invoice was October of 2007.

 87 5 Q. Had you done work previous to October of

 87 6 2007 for them?

 87 7 A. Did I work for 'em?

 87 8 Q. Yes.

 87 9 A. There was no -- I -- I met with them

 87 10 before that, but to -- to sign a contract and -- and

 87 11 be interviewed, but I don't remember --

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 83 of 106
Ohlin, Douglas 4-24-2013 11

 87 12 Q. And what --

 87 13 A. -- specific dates.

 87 14 Q. When did you meet with them?

 87 15 A. They approached me and asked me if I was

 87 16 interested.

 87 17 Q. When did they approach you?

 87 18 A. I don't remember the specific dates.

87:19 - 87:24 Ohlin, Douglas 4-24-2013

 87 19 Q. Was it after you had told Mr. Berger

 87 20 about the --

 87 21 A. It was after I retired.

 87 22 Q. But was it after you told Dr. Berger --

 87 23 or Mr. Berger about the -- Dr. Dancer's filter?

 87 24 A. That was in the early '90s.

Re: [87:19-87:24]

Improper designation, 401/402

SUSTAINED

88:4 - 88:8 Ohlin, Douglas 4-24-2013

 88 4 Q. And who approached you regarding working

 88 5 for Aearo?

 88 6 A. Doug Moses.

 88 7 Q. And when did they -- what did they want

 88 8 you to do for Aearo?

Re: [88:7-88:8]

Def Objection - Foundation (602); 

Vague (611, 403)

Re: [88:7-88:8]

Def Objection -

Foundation 

(602); Vague 

(611, 403)

SUSTAINED

88:11 - 88:11 Ohlin, Douglas 4-24-2013

 88 11 A. They wanted me to be a consultant.

91:14 - 91:16 Ohlin, Douglas 4-24-2013

 91 14 Q. Were you ever paid anything by Aearo

 91 15 while you were working for the military?

 91 16 A. No.

Re: [91:12-91:16]

Improper designation

OVERRULED

91:17 - 92:1 Ohlin, Douglas 4-24-2013

 91 17 Q. Did Aearo give you samples of products

 91 18 while you were working for the military?

 91 19 A. Yes.

 91 20 Q. Which -- which products?

 91 21 A. Foam plugs.

 91 22 Q. Anything else?

 91 23 A. While I was working for the military?

 91 24 Q. Yes.

 91 25 A. I don't recall anything other than the

 92 1 foam plugs.

92:2 - 92:3 Ohlin, Douglas 4-24-2013

 92 2 Q. Did Aearo give you anything else during

 92 3 your time in the military?

Re: [92:2-92:3]

Improper designation

OVERRULED

92:6 - 92:9 Ohlin, Douglas 4-24-2013

 92 6 A. No.

Re: [92:6-92:9]

Improper designation

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 84 of 106
Ohlin, Douglas 4-24-2013 12

 92 7 BY MR. HILL:

 92 8 Q. Did Aearo make any promises to you during

 92 9 your time when you were working in the military?

92:11 - 92:11 Ohlin, Douglas 4-24-2013

 92 11 A. No.

Re: [92:11-92:11]

Improper designation

OVERRULED

93:1 - 93:9 Ohlin, Douglas 4-24-2013

 93 1 Q. Did you ever have any communications with

 93 2 Mr. Moses prior to that about your working for Aearo?

 93 3 MR. MYERS: Objection, vague, irrelevant.

 93 4 A. I don't recall.

 93 5 BY MR. HILL:

 93 6 Q. Are you saying that you didn't or are you

 93 7 saying --

 93 8 A. I don't -- I'm not -- I -- I don't

 93 9 recall.

Re: [93:1-93:9]

Plt Objection - Improper 

designation

Re: [93:1-93:9]

Plt Objection -

Atty Colloquy 

(Objection); 

Foundation; 

Speculative

SUSTAINED

94:1 - 94:14 Ohlin, Douglas 4-24-2013

 94 1 Q. How long was the gap between when you

 94 2 stopped working for the military and began working for

 94 3 Aearo?

 94 4 A. Retired first week of June 2007; the

 94 5 first labor invoice I submitted was for October of --

 94 6 of that year.

 94 7 Q. When did you -- when did you technically

 94 8 get the -- let me take a step back.

 94 9 Did you say that you had signed a

 94 10 contract prior to October?

 94 11 A. Yes.

 94 12 Q. And when was that?

 94 13 A. I don't recall.

 94 14 Q. But sometime between June and October?

Re: [94:1-94:14]

Relevance, 403

OVERRULED

94:17 - 94:21 Ohlin, Douglas 4-24-2013

 94 17 A. Yes.

 94 18 BY MR. HILL:

 94 19 Q. Was a contract signed before you had left

 94 20 the employment of the military?

 94 21 A. No.

Re: [94:17-94:21]

Improper designation

OVERRULED

96:18 - 96:20 Ohlin, Douglas 4-24-2013

 96 18 Q. So what was the -- what was the scope of

 96 19 your relationship with Aearo when you were hired on in

 96 20 2007?

96:23 - 96:25 Ohlin, Douglas 4-24-2013

 96 23 A. I was expected to attend conferences,

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 85 of 106
Ohlin, Douglas 4-24-2013 13

 96 24 give papers, write articles, review instructional

 96 25 materials for their hearing protectors.

106:1 - 106:4 Ohlin, Douglas 4-24-2013

 106 1 BY MR. HILL:

 106 2 Q. So in the course of your work for 3M,

 106 3 have you ever reached out to people to get information

 106 4 for 3M about Moldex products?

Re: [106:1-106:4]

Improper designation, 401/402, 

403

SUSTAINED

106:6 - 106:6 Ohlin, Douglas 4-24-2013

 106 6 A. Yes.

Re: [106:6-106:6]

Improper designation, 401/402, 

403

SUSTAINED

106:8 - 106:17 Ohlin, Douglas 4-24-2013

 106 8 A. Yes.

 106 9 BY MR. HILL:

 106 10 Q. Which people?

 106 11 A. I -- I asked Colonel Tuten if she knew

 106 12 there was a stock number. I asked if they had stock

 106 13 numbers, they had part numbers. And I asked Colonel

 106 14 Grantham the same question. I could have gone to

 106 15 logistics sources, but I didn't know what they were,

 106 16 and this was a faster way for me to do it. It was

 106 17 public information, so...

Re: [106:8-106:20]

Improper designation, 401/402, 

403

SUSTAINED

109:4 - 109:6 Ohlin, Douglas 4-24-2013

 109 4 BY MR. HILL:

 109 5 Q. Now, when you say you "felt comfortable,"

 109 6 what do you mean by that?

Re: [109:4-109:6]

Improper designation, 401/402, 

403

SUSTAINED

109:8 - 109:15 Ohlin, Douglas 4-24-2013

 109 8 A. I thought it was public information, and

 109 9 I thought that the attorney at -- okay. Was being the

 109 10 usual --

 109 11 THE COURT REPORTER: What? At where?

 109 12 A. It was -- now they changed the name. But

 109 13 at the U.S. Army Public Health Command, was being a

 109 14 little overzealous. I had worked with him before, and

 109 15 I knew how he operated. He just lived to say no.

Re: [109:8-109:15]

Improper designation, 401/402, 

403

SUSTAINED

110:1 - 110:3 Ohlin, Douglas 4-24-2013

 110 1 Q. Did you tell Colonel Tuten that you were

 110 2 not supposed to get that information from the

 110 3 military?

Re: [110:1-110:3]

Improper designation, 401/402, 

403

SUSTAINED

110:7 - 110:9 Ohlin, Douglas 4-24-2013

 110 7 A. I told her that Colonel Grantham had been

 110 8 advised not to talk to me. Yes, I did -- I did tell

 110 9 her that.

Re: [110:7-110:9]

Improper designation, 401/402, 

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 86 of 106
Ohlin, Douglas 4-24-2013 14

110:11 - 110:12 Ohlin, Douglas 4-24-2013

 110 11 Q. Did you tell Colonel Tuten that she could

 110 12 say that 3M was requesting this information?

Re: [110:11-110:12]

Improper designation, 401/402, 

403

SUSTAINED

110:14 - 110:16 Ohlin, Douglas 4-24-2013

 110 14 A. I don't remember that specific.

 110 15 BY MR. HILL:

 110 16 Q. Do you remember generally?

Re: [110:14-110:16]

Improper designation, 401/402, 

403

SUSTAINED

111:1 - 111:4 Ohlin, Douglas 4-24-2013

 111 1 Q. Were you putting Colonel Tuten in a

 111 2 difficult position when you asked her for information

 111 3 after Colonel Grantham had been advised by legal

 111 4 counsel not to provide that information to 3M?

Re: [111:1-111:4]

Improper designation, 401/402, 

403

SUSTAINED

111:7 - 111:8 Ohlin, Douglas 4-24-2013

 111 7 A. I didn't think so because I thought it

 111 8 was public information.

Re: [111:7-111:8]

Improper designation, 401/402, 

403

SUSTAINED

112:17 - 112:18 Ohlin, Douglas 4-24-2013

 112 17 Q. So you thought it was public because of

 112 18 documents you didn't know anything about?

Re: [112:17-112:18]

Improper designation, 401/402, 

403

SUSTAINED

112:21 - 113:3 Ohlin, Douglas 4-24-2013

 112 21 A. I've never known NSNs to be confidential

 112 22 in -- in the past.

 112 23 BY MR. HILL:

 112 24 Q. Did you ever ask if the military had

 112 25 ordered any Moldex products to Colonel Tuten?

 113 1 A. I might have, but I don't recall

 113 2 specifically.

 113 3 Q. Would that information have been public?

Re: [112:21-113:3]

Improper designation, 401/402, 

403

SUSTAINED

113:6 - 113:14 Ohlin, Douglas 4-24-2013

 113 6 A. I think government purchases, unless

 113 7 you're dealing with some kind of classified equipment,

 113 8 is generally open to the public.

 113 9 BY MR. HILL:

 113 10 Q. Did you know specifically if the

 113 11 information you're saying was public actually was

 113 12 public when you made the request from -- to Colonel

 113 13 Tuten?

 113 14 A. I assumed --

Re: [113:6-113:14]

Improper designation, 401/402, 

403

SUSTAINED

113:16 - 113:16 Ohlin, Douglas 4-24-2013

 113 16 A. -- it was public.

Re: [113:16-113:16]

Improper designation, 401/402, 

403

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 87 of 106
Ohlin, Douglas 4-24-2013 15

113:19 - 113:19 Ohlin, Douglas 4-24-2013

 113 19 THE WITNESS: I assumed it was public.

Re: [113:19-113:19]

Improper designation, 401/402, 

403

SUSTAINED

116:3 - 116:5 Ohlin, Douglas 4-24-2013

 116 3 Q. Did you get the -- did you get the

 116 4 information you requested as a result of this e-mail?

 116 5 A. I don't think so, no.

Re: [116:3-116:5]

Improper designation

SUSTAINED

117:13 - 117:17 Ohlin, Douglas 4-24-2013

 117 13 Q. Dr. Ohlin, direct -- directing your

 117 14 attention to Document 506 again, do you recall sending

 117 15 this e-mail?

 117 16 A. Yes.

 117 17 Q. And were you asked to send that e-mail?

117:19 - 118:1 Ohlin, Douglas 4-24-2013

 117 19 A. I was asked not to send this specific

 117 20 e-mail, but I was asked if I could find out if there

 117 21 was a stock number on the BattlePlug.

 117 22 BY MR. HILL:

 117 23 Q. And who asked you to do that?

 117 24 A. Probably Doug Moses.

 117 25 Q. And did Mr. Moses tell you why he wanted

 118 1 you to do that?

118:2 - 118:10 Ohlin, Douglas 4-24-2013

 118 2 A. I think we both shared a concern that the

 118 3 corporate people at 3M had to know the competition out

 118 4 there was real.

 118 5 Q. Which corporate people are you referring

 118 6 to?

 118 7 A. I don't know, but -- I don't know the

 118 8 names of those guys. They're way above me.

 118 9 Q. Why were you reaching out to get the

 118 10 stock number information rather than Doug himself?

Re: [118:9-118:15]

Def Objection - Vague (611, 403)

Re: [118:9-

118:15]

Def Objection -

Vague (611, 

403)

OVERRULED

118:12 - 118:15 Ohlin, Douglas 4-24-2013

 118 12 A. I was his -- his gopher for this kind of

 118 13 stuff. I -- I assumed that he had -- he had other

 118 14 things to do. He thought I might be able to get it

 118 15 quicker.

Re: [118:9-118:15]

Def Objection - Vague (611, 403)

Re: [118:9-

118:15]

Def Objection -

Vague (611, 

403)

OVERRULED

119:24 - 120:1 Ohlin, Douglas 4-24-2013

 119 24 Q. What was the improvement?

 119 25 A. As I described to you, it was a method to

 120 1 reduce the attenuation in the non-linear mode.

Re: [119:24-120:1]

Plt Objection - Improper 

designation

Re: [119:24-

120:1]

Plt Objection -

Foundation; 

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 88 of 106
Ohlin, Douglas 4-24-2013 16

403

OVERRULED

122:7 - 122:20 Ohlin, Douglas 4-24-2013

 122 7 Q. So, Dr. Ohlin, before the break, you had

 122 8 mentioned that Mr. Moses said he waited an appropriate

 122 9 amount of time to contact you about your employment

 122 10 with Aearo after your retirement from working for the

 122 11 military.

 122 12 Do you recall our discussing that?

 122 13 A. Discussing it with whom?

 122 14 Q. Do you recall our discussing it this

 122 15 morning?

 122 16 A. Yes, yes.

 122 17 Q. Do you know what the appropriate amount

 122 18 of time that Mr. Moses was referring to when he told

 122 19 you that?

 122 20 A. No.

126:22 - 127:3 Ohlin, Douglas 4-24-2013

 126 22 Q. Why not?

 126 23 A. I don't know. I didn't -- I didn't -- I

 126 24 don't control the specifications.

 126 25 Q. So let's talk more about that

 127 1 specification process. You said that you sometimes

 127 2 acted as a gatekeeper, in terms of what products were

 127 3 going to be approved; is that correct?

Re: [126:23-126:24]

Def Objection - Incomplete (611, 

403)

Re: [126:23-127:19]

Def Objection - Relevance (401, 

402)

Re: [126:23-

126:24]

Def Objection -

Incomplete 

(611, 403); 

Relevance (401, 

402)

OVERRULED

Re: [126:25-

127:19]

Def Objection -

Relevance (401, 

402)

OVERRULED

127:6 - 127:11 Ohlin, Douglas 4-24-2013

 127 6 A. I act as gatekeeper as to what would be

 127 7 recommended. I didn't make decisions, per se. In my

 127 8 position, you made recommendations.

 127 9 BY MR. HILL:

 127 10 Q. And were those recommendations given to

 127 11 the people who wrote the specifications?

Re: [126:23-127:19]

Def Objection - Relevance (401, 

402)

OVERRULED

Re: [126:25-

127:19]

Def Objection -

Relevance (401, 

402)

OVERRULED

127:13 - 127:15 Ohlin, Douglas 4-24-2013

 127 13 A. Not directly, no.

 127 14 BY MR. HILL:

 127 15 Q. Who were the recommendations given to?

Re: [126:23-127:19]

Def Objection - Relevance (401, 

402)

OVERRULED

Re: [126:25-

127:19]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 89 of 106
Ohlin, Douglas 4-24-2013 17

Relevance (401, 

402)

OVERRULED

127:17 - 127:19 Ohlin, Douglas 4-24-2013

 127 17 A. Recommendations would be passed up the

 127 18 line through my -- through my superiors to medical

 127 19 logistics folks.

Re: [126:23-127:19]

Def Objection - Relevance (401, 

402)

OVERRULED

Re: [126:25-

127:19]

Def Objection -

Relevance (401, 

402)

OVERRULED

130:6 - 130:7 Ohlin, Douglas 4-24-2013

 130 6 Q. What input did you have into the Combat

 130 7 Arms Earplug specifications?

Re: [130:6-130:23]

Def Objection - Vague (611, 403); 

Assumes facts not in evidence 

(611, 403)

Re: [130:6-

130:23]

Def Objection -

Vague (611, 

403); Assumes 

facts not in 

evidence (611, 

403)

OVERRULED

130:10 - 130:17 Ohlin, Douglas 4-24-2013

 130 10 A. I wanted it to be -- I wanted to have a

 130 11 linear and non-linear mode so it could be used for

 130 12 steady-state noise as well as input noise.

 130 13 BY MR. HILL:

 130 14 Q. Did you write those specs?

 130 15 A. No.

 130 16 Q. Did you recommend that there be specs

 130 17 issued for those products?

Re: [130:6-130:23]

Def Objection - Vague (611, 403); 

Assumes facts not in evidence 

(611, 403)

Re: [130:6-

130:23]

Def Objection -

Vague (611, 

403); Assumes 

facts not in 

evidence (611, 

403)

OVERRULED

130:19 - 130:23 Ohlin, Douglas 4-24-2013

 130 19 A. I don't remember.

 130 20 BY MR. HILL:

 130 21 Q. So you don't --

 130 22 A. I don't -- I don't recall a specification

 130 23 for the Combat Arms Earplug.

Re: [130:6-130:23]

Def Objection - Vague (611, 403); 

Assumes facts not in evidence 

(611, 403)

Re: [130:6-

130:23]

Def Objection -

Vague (611, 

403); Assumes 

facts not in 

evidence (611, 

403)

OVERRULED

130:24 - 131:5 Ohlin, Douglas 4-24-2013

 130 24 Q. Did you recommend that the Combat Arms

 130 25 Earplug be approved for military use?

 131 1 A. Yes.

 131 2 Q. And when was that?

Re: [130:24-131:5]

Improper designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 90 of 106
Ohlin, Douglas 4-24-2013 18

 131 3 A. I don't know the time frame, but as chair

 131 4 of the DOD working group, I put it on the table and

 131 5 the group recommended it.

131:22 - 131:23 Ohlin, Douglas 4-24-2013

 131 22 Q. Does the medical command have a role in

 131 23 approving specifications?

Re: [131:22-131:23]

Improper designation, 401/402, 

403, MIL

SUSTAINED

131:25 - 132:6 Ohlin, Douglas 4-24-2013

 131 25 A. If it pertains to a medical item, yes.

 132 1 BY MR. HILL:

 132 2 Q. And when you say "a medical item," what

 132 3 do you mean?

 132 4 A. Anything that's designated as a -- as a

 132 5 medical item. Earplugs are designated as a medical

 132 6 item 'cause it's something that goes into the ear.

Re: [131:25-132:6]

Improper designation, 401/402, 

403, MIL

SUSTAINED

133:16 - 133:22 Ohlin, Douglas 4-24-2013

 133 16 Q. And did you say you're not sure if there

 133 17 are specs covering the Combat Arms Earplug? I -- I

 133 18 wasn't quite clear on what you were telling me.

 133 19 A. I don't remember seeing any specs on

 133 20 that, to tell you the truth. There may be a product

 133 21 description out there, something like that, but I

 133 22 don't remember specification.

136:19 - 137:8 Ohlin, Douglas 4-24-2013

 136 19 Q. When you say "the overpressure study,"

 136 20 what are you talking about?

 136 21 A. We -- they were getting weapons into the

 136 22 system that had very high overpressure levels, and

 136 23 they wanted more bang for their buck, but they were

 136 24 getting up to levels where we were concerned about

 136 25 gas-containing organs, like the lungs, and we were

 137 1 getting into gray areas that we really didn't know

 137 2 could we protect people, could we protect people's

 137 3 hearing, could -- could we do damage to these

 137 4 gas-containing organs, and they wanted these weapon

 137 5 systems into the system, and they wanted to determine

 137 6 whether or not it was -- it was feasible. You didn't

 137 7 want -- you want to be hurting the enemy, not your own

 137 8 troops with your weapon systems.

Re: [136:19-137:8]

Plt Objection - Improper 

designation

Re: [136:19-

137:8]

Plt Objection -

401; 403 (If 

played; add 

136:4-136:17)

SUSTAINED

137:17 - 137:22 Ohlin, Douglas 4-24-2013

 137 17 BY MR. HILL:

 137 18 Q. So when you say there was no other plugs

 137 19 that had human subject testing, you're referring to

Re: [137:17-137:22]

Improper designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 91 of 106
Ohlin, Douglas 4-24-2013 19

 137 20 testing that stopped in 1993, and you don't think

 137 21 could ever get going again?

 137 22 A. Not --

137:25 - 138:4 Ohlin, Douglas 4-24-2013

 137 25 A. It was very difficult to get -- those

 138 1 human use protocols were very difficult to get

 138 2 approved, and things have tightened up even more since

 138 3 then. I don't know if they could ever resurrect

 138 4 something like that again.

Re: [137:25-138:4]

Improper designation

SUSTAINED

140:22 - 140:24 Ohlin, Douglas 4-24-2013

 140 22 Q. So when was the Combat Arms Earplug

 140 23 recommended?

 140 24 A. Sometime in the '90s.

140:25 - 141:5 Ohlin, Douglas 4-24-2013

 140 25 Q. Was this after you told Mr. Berger about

 141 1 the French patent related to non-linear filtration of

 141 2 sound?

 141 3 A. Yeah.

 141 4 Q. And you suggested that he put that filter

 141 5 into the earplug; is that correct?

Re: [141:4-141:7]

Def Objection - Misstates (611, 

403)

Re: [141:4-

141:7]

Def Objection -

Misstates (611, 

403)

OVERRULED

141:8 - 142:8 Ohlin, Douglas 4-24-2013

 141 8 A. Who we talking about?

 141 9 BY MR. HILL:

 141 10 Q. My understanding is that Aearo had some

 141 11 sort of a tip?

 141 12 A. Yes.

 141 13 Q. A tip, and you said something about

 141 14 putting Mr. Dancer -- I'm not a French speaker --

 141 15 A. That's right.

 141 16 Q. -- Mr. Dancer, his filter into that

 141 17 earplug; is that --

 141 18 A. Yes.

 141 19 Q. -- correct?

 141 20 A. Yes.

 141 21 Q. And was that done?

 141 22 A. Yes.

 141 23 Q. And did that became the Combat Arms

 141 24 Earplug?

 141 25 A. I think there -- there was a French

 142 1 version of the Combat Arms Earplug under a different

 142 2 manufacturer. Might have been Moldex, I don't know.

 142 3 I don't know if it was Moldex or it was -- what's the

Re: [141:10-142:8]

Def Objection - Foundation (602)

Re: [141:10-

142:8]

Def Objection -

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 92 of 106
Ohlin, Douglas 4-24-2013 20

 142 4 other one? Anyway, they had a quality control problem

 142 5 with it. But it was not -- the first Combat Arms

 142 6 Earplug put out there with that filter was not with an

 142 7 Aearo product. The French put it out with some other

 142 8 manufacturer.

142:9 - 142:10 Ohlin, Douglas 4-24-2013

 142 9 Q. And you didn't suggest that any other

 142 10 vendors put this filter in their products?

Re: [142:9-142:10]

Improper designation, 401/402, 

403

SUSTAINED

142:13 - 142:16 Ohlin, Douglas 4-24-2013

 142 13 A. No.

 142 14 BY MR. HILL:

 142 15 Q. And why not?

 142 16 A. Well --

Re: [142:13-142:16]

Improper designation, 401/402, 

403

SUSTAINED

142:18 - 142:25 Ohlin, Douglas 4-24-2013

 142 18 A. -- I had a relationship with Berger at

 142 19 the time that he would listen to me and follow up on

 142 20 my suggestions, and not everybody always did.

 142 21 BY MR. HILL:

 142 22 Q. When you said you had a relationship with

 142 23 Berger, what do you mean?

 142 24 A. I could depend on him for objective,

 142 25 technical information.

Re: [142:18-142:25]

Improper designation, 401/402, 

403

SUSTAINED

143:11 - 143:12 Ohlin, Douglas 4-24-2013

 143 11 Q. Did you -- well, what did you talk to

 143 12 Mr. Berger about?

143:15 - 143:18 Ohlin, Douglas 4-24-2013

 143 15 A. The conversations I remember had to do

 143 16 with the ANSI standard and the -- the inadequacies of

 143 17 the ANSI standard that we had to use for evaluating

 143 18 hearing protectors.

144:15 - 144:21 Ohlin, Douglas 4-24-2013

 144 15 BY MR. HILL:

 144 16 Q. Did you send any plugs that didn't have a

 144 17 hole and ask Dancer, "Hey, would this work if you put

 144 18 a hole in it" --

 144 19 A. No.

 144 20 Q. -- "this filter"?

 144 21 A. No.

Re: [144:15-144:21]

Improper designation, 401/402, 

403, cumulative 

SUSTAINED

144:25 - 145:1 Ohlin, Douglas 4-24-2013

 144 25 BY MR. HILL:

 145 1 Q. Why not?

Re: [144:25-145:1]

Improper designation, 401/402, 

403, cumulative 

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 93 of 106
Ohlin, Douglas 4-24-2013 21

145:4 - 145:6 Ohlin, Douglas 4-24-2013

 145 4 A. Why?

 145 5 BY MR. HILL:

 145 6 Q. Yeah, why not?

Re: [145:4-145:6]

Improper designation, 401/402, 

403, cumulative 

SUSTAINED

145:9 - 145:15 Ohlin, Douglas 4-24-2013

 145 9 A. The only other plug I ever considered for

 145 10 -- for the Combat Arms Earplug was the Elvex Quattro.

 145 11 I thought it was a -- it was a superior pre-formed

 145 12 earplug for a lot of reasons: comfort, ease, ease of

 145 13 insertion, et cetera, but it didn't have a hole in it.

 145 14 BY MR. HILL:

 145 15 Q. Could they have put a hole in it?

Re: [145:9-145:17]

Def Objection - Incomplete (611, 

403)

Re: [145:14-145:17]

Def Objection - Foundation (602); 

Relevance (401, 402)

Re: [145:9-

145:13]

Def Objection -

Incomplete 

(611, 403)

OVERRULED

Re: [145:14-

145:17]

Def Objection -

Foundation 

(602); 

Relevance (401, 

402); 

Incomplete 

(611, 403)

OVERRULED

145:17 - 145:17 Ohlin, Douglas 4-24-2013

 145 17 A. I don't know --

Re: [145:9-145:17]

Def Objection - Incomplete (611, 

403)

Re: [145:14-145:17]

Def Objection - Foundation (602); 

Relevance (401, 402)

OVERRULED

Re: [145:14-

145:17]

Def Objection -

Foundation 

(602); 

Relevance (401, 

402); 

Incomplete 

(611, 403)

OVERRULED

150:1 - 150:3 Ohlin, Douglas 4-24-2013

 150 1 BY MR. HILL:

 150 2 Q. Then why didn't you reach out to any

 150 3 other vendors about the French filter?

Re: [150:1-150:3]

Improper designation

SUSTAINED

150:7 - 150:14 Ohlin, Douglas 4-24-2013

 150 7 A. Again, at this time, this was a company

 150 8 that listened to us and were very responsive and

 150 9 innovative, and we thought we had our best shot with

 150 10 them.

 150 11 BY MR. HILL:

 150 12 Q. But --

Re: [150:7-150:14]

Improper designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 94 of 106
Ohlin, Douglas 4-24-2013 22

 150 13 A. And we had this -- this earplug ready to

 150 14 go.

163:7 - 164:18 Ohlin, Douglas 4-24-2013

 163 7 BY MR. HILL:

 163 8 Q. Dr. Ohlin, during the break, you said you

 163 9 have an addition you want to make.

 163 10 A. Yeah, I wanted to make something clear.

 163 11 I -- I was not just -- sounds like I've been just

 163 12 pushing Aearo products here and that's not -- not

 163 13 true. A few years back I tried to get the Noise

 163 14 Buster system -- the Army to adopt the Noise Buster

 163 15 system. I bought one and sent it down to an

 163 16 installation for them to evaluate that had a

 163 17 particularly high steady-state noise exposure, and I

 163 18 couldn't get any traction with it.

 163 19 Just for the record, the Noise Buster

 163 20 system used Moldex products, so...

 163 21 Q. When was that?

 163 22 A. That was a few -- a few years ago. I

 163 23 don't remember the exact time frame. As you have been

 163 24 able to determine, I'm lousy with time frame, but it

 163 25 was around the time when Kevin Michael first came out

 164 1 with the Noise Buster system.

 164 2 Q. And what niche was the Noise Buster

 164 3 supposed to fill?

 164 4 A. It was a -- it was a really slick system

 164 5 where the hearing protector was hooked up to a

 164 6 dosimeter, and you could tell at the end of the day

 164 7 just how well the -- that the hearing protector was

 164 8 protecting your hearing, what kind of a noise dose you

 164 9 were getting.

 164 10 Q. Is that a -- and you said you couldn't

 164 11 get any traction on that?

 164 12 A. Yeah. I think cost maybe had something

 164 13 to do with it. They just didn't want to go the extra

 164 14 mile, and I'd sent it to an installation that really

 164 15 needed something like this, but the people running the

 164 16 program had almost an exclusive focus on noise

 164 17 measurement and paying lip service to engineering

 164 18 controls.

Re: [163:7-164:18]

Improper designation

SUSTAINED

167:4 - 167:6 Ohlin, Douglas 4-24-2013

 167 4 Q. Has anyone at 3M or Aearo ever said that

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 95 of 106
Ohlin, Douglas 4-24-2013 23

 167 5 you're responsible for the Combat Arms Earplug

 167 6 business?

167:9 - 167:10 Ohlin, Douglas 4-24-2013

 167 9 A. I don't remember that ever being said,

 167 10 no.

167:12 - 167:16 Ohlin, Douglas 4-24-2013

 167 12 Q. Has anyone ever said that you came up

 167 13 with the idea for the Combat Arms --

 167 14 A. It wasn't --

 167 15 Q. -- product?

 167 16 A. It wasn't me.

Re: [167:12-167:22]

Def Objection - Foundation (602)

Re: [167:12-

167:22]

Def Objection -

Foundation 

(602)

OVERRULED

167:20 - 167:22 Ohlin, Douglas 4-24-2013

 167 20 A. That -- that was developed at the

 167 21 French-German Institute by Dr. Dancer and his

 167 22 colleagues, not me.

Re: [167:12-167:22]

Def Objection - Foundation (602)

Re: [167:12-

167:22]

Def Objection -

Foundation 

(602)

OVERRULED

168:17 - 168:19 Ohlin, Douglas 4-24-2013

 168 17 Q. Has anyone at 3M or Aearo ever said that

 168 18 your specifications have been responsible for the

 168 19 Combat Arms business?

Re: [168:17-169:4]

Def Objection - Foundation (602)

Re: [168:17-

169:4]

Def Objection -

Foundation 

(602)

OVERRULED

168:22 - 168:23 Ohlin, Douglas 4-24-2013

 168 22 A. I don't know of any specification for the

 168 23 Combat Arms Earplug.

Re: [168:17-169:4]

Def Objection - Foundation (602)

Re: [168:17-

169:4]

Def Objection -

Foundation 

(602)

OVERRULED

169:1 - 169:1 Ohlin, Douglas 4-24-2013

 169 1 Q. Any product descriptions?

Re: [168:17-169:4]

Def Objection - Foundation (602)

Re: [168:17-

169:4]

Def Objection -

Foundation 

(602)

OVERRULED

169:4 - 169:4 Ohlin, Douglas 4-24-2013

 169 4 A. I don't recall one.

Re: [168:17-169:4]

Def Objection - Foundation (602)

Re: [168:17-

169:4]

Def Objection -

Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 96 of 106
Ohlin, Douglas 4-24-2013 24

169:5 - 169:8 Ohlin, Douglas 4-24-2013

 169 5 BY MR. HILL:

 169 6 Q. Any general discussion about your being

 169 7 responsible for any hearing protection business of

 169 8 Aearo or 3M?

169:11 - 169:13 Ohlin, Douglas 4-24-2013

 169 11 A. I'm not on the business side, per se.

 169 12 I'm on the technical side. You know, I don't get

 169 13 involved in the business end of it.

173:22 - 173:24 Ohlin, Douglas 4-24-2013

 173 22 Q. What does NRR stand for?

 173 23 A. Noise reduction rating.

 173 24 Q. What is a noise reduction rating?

174:1 - 174:3 Ohlin, Douglas 4-24-2013

 174 1 A. It is a number derived from testing a

 174 2 hearing protector by ANSI standard. That's supposed

 174 3 to be a measure of its acoustic protection.

175:2 - 175:3 Ohlin, Douglas 4-24-2013

 175 2 Q. Under what circumstances is a higher NRR

 175 3 better?

Re: [175:2-176:2]

701

OVERRULED

175:5 - 176:2 Ohlin, Douglas 4-24-2013

 175 5 A. Extreme noise exposures.

 175 6 BY MR. HILL:

 175 7 Q. When you say "extreme noise exposures,"

 175 8 what do you mean?

 175 9 A. Well, that's a relative term. But once

 175 10 you start getting over, say, a hundred dBA, I think

 175 11 you want a higher-performing earplug.

 175 12 Q. And what's a dBA?

 175 13 A. It's a noise level.

 175 14 Q. I mean, what does dBA stand for?

 175 15 A. Decibels under the A-weighted network.

 175 16 Q. Are gunshots an example of extreme noise?

 175 17 A. Yes, but it's an entirely different

 175 18 animal.

 175 19 Q. And when you say "an entirely different

 175 20 animal," what do you mean?

 175 21 A. It's a different mode of damage to the

 175 22 ear. It's more immediate. It's more of a mechanical

 175 23 mode of damage. In some ways, depending on the type

 175 24 of weapons fired, it's easy to protect yourself from

 175 25 it, but it's also very unforgiving. You can get more

Re: [175:2-176:2]

701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 97 of 106
Ohlin, Douglas 4-24-2013 25

 176 1 hearing loss in one afternoon on a firing range than

 176 2 years of listening to some steady-state noise.

176:20 - 176:23 Ohlin, Douglas 4-24-2013

 176 20 Q. And in what way does a customer place a

 176 21 lot of weight on NRR?

 176 22 A. Well, they think the higher NRR is -- is

 176 23 always better.

Re: [176:12-176:23]

701, 602

OVERRULED

176:24 - 176:25 Ohlin, Douglas 4-24-2013

 176 24 Q. Where do the NRR ratings that 3M uses on

 176 25 its products come from?

177:3 - 177:10 Ohlin, Douglas 4-24-2013

 177 3 A. Out of their laboratory.

 177 4 BY MR. HILL:

 177 5 Q. Which laboratory?

 177 6 A. The laboratory in Indianapolis.

 177 7 Q. Who runs that laboratory?

 177 8 A. Who what?

 177 9 Q. Who runs that laboratory?

 177 10 A. Elliott --

177:12 - 177:12 Ohlin, Douglas 4-24-2013

 177 12 A. -- Berger.

180:21 - 181:22 Ohlin, Douglas 4-24-2013

 180 21 Q. Do all Combat Arms earplugs have the same

 180 22 fit instructions, do you know?

 180 23 A. It depends on the version.

 180 24 Q. Let's start with the first version. Do

 180 25 you know?

 181 1 A. Generally -- can't speak in specifics,

 181 2 but generally, you know you got it in right if you tug

 181 3 on the plug and there's tension and you get a slight

 181 4 occlusion effect. That is, when you talk, your own

 181 5 voice sounds and feels low tone, like you're talking

 181 6 inside of a barrel.

 181 7 Q. Did that instruction involve a large size

 181 8 or small size or anything like that?

 181 9 A. That -- that's not relevant to size, per

 181 10 se.

 181 11 Q. What about the second version? Did --

 181 12 did those plugs all have the same fitting

 181 13 instructions?

 181 14 A. No. We had different -- different

 181 15 procedures from -- going from linear to non-linear.

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 98 of 106
Ohlin, Douglas 4-24-2013 26

 181 16 The second version a lot of people aren't -- even

 181 17 within the company forget this. The first version was

 181 18 a single-sided, three- -- three-flange plug. The

 181 19 second version was a double-ended plug with -- it was

 181 20 olive drab and yellow, and one plug was for

 181 21 steady-state noise and the other plug was for the

 181 22 non-linear mode for weapons fire.

181:23 - 181:25 Ohlin, Douglas 4-24-2013

 181 23 Q. Was there a third version?

 181 24 A. Third version had a -- a disk that you

 181 25 turn to change modes.

182:5 - 182:6 Ohlin, Douglas 4-24-2013

 182 5 Q. Which -- which version had a fit change

 182 6 instruction to increase the NRR?

Re: [182:5-183:21]

Relevance, 403, Baker MIL 1

OVERRULED

182:9 - 182:12 Ohlin, Douglas 4-24-2013

 182 9 A. I don't remember which -- off the top of

 182 10 my head, I do not remember which version was the first

 182 11 to get sized. I think it was -- I think it was the

 182 12 third version.

Re: [182:5-183:21]

Relevance, 403, Baker MIL 1

OVERRULED

182:14 - 182:17 Ohlin, Douglas 4-24-2013

 182 14 Q. Have you ever advised anyone at 3M that

 182 15 you were worried that Elliott Berger was being

 182 16 pressured to increase NRR on a product?

 182 17 A. Yes.

Re: [182:5-183:21]

Relevance, 403, Baker MIL 1

OVERRULED

182:22 - 183:13 Ohlin, Douglas 4-24-2013

 182 22 BY MR. HILL:

 182 23 Q. -- when was that?

 182 24 A. I don't know when it was, but it was when

 182 25 -- when they tested the new size plug and they got the

 183 1 NRR, got such a lower NRR with the same earplug, I

 183 2 heard there was a lot concern about that. What

 183 3 happened?

 183 4 Q. Who did you report your concern to at 3M?

 183 5 A. Doug Moses.

 183 6 Q. Anyone else?

 183 7 A. I don't recall anybody else, no.

 183 8 Q. Did you have any conversations with

 183 9 Mr. Moses about this?

 183 10 A. Probably. I don't recall the, you know,

 183 11 exact conversation.

 183 12 Q. Do you know if Mr. Moses took any action

 183 13 as a result of your e-mail?

Re: [183:12-183:21]

Def Objection - Foundation (602)

Re: [183:12-

183:21]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [182:5-183:21]

Relevance, 403, Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 99 of 106
Ohlin, Douglas 4-24-2013 27

183:16 - 183:21 Ohlin, Douglas 4-24-2013

 183 16 A. I think they passed on my -- my

 183 17 suggestion to fit smaller.

 183 18 BY MR. HILL:

 183 19 Q. Did they pass on anything regarding your

 183 20 concern that Mr. Berger was being pressured to

 183 21 increase NRRs?

Re: [183:12-183:21]

Def Objection - Foundation (602)

Re: [183:12-

183:21]

Def Objection -

Foundation 

(602)

OVERRULED

Re: [182:5-183:21]

Relevance, 403, Baker MIL 1

OVERRULED

183:24 - 183:24 Ohlin, Douglas 4-24-2013

 183 24 A. I don't know.

184:11 - 184:13 Ohlin, Douglas 4-24-2013

 184 11 Q. Have you ever had communications with

 184 12 Mr. Berger generally regarding his role as an NRR

 184 13 tester as well as a Aearo or 3M employee?

Re: [184:11-184:13]

Improper designation

SUSTAINED

184:15 - 184:18 Ohlin, Douglas 4-24-2013

 184 15 A. Probably. I -- you know, it's -- he was

 184 16 my -- he was my source of expertise in this area, and

 184 17 I also served on the ANSI standard committee, so, you

 184 18 know, I was bound to hear something about it.

Re: [184:15-184:18]

Improper designation

SUSTAINED

184:20 - 185:2 Ohlin, Douglas 4-24-2013

 184 20 Q. What ANSI standard committee was that?

 184 21 A. S-12.

 184 22 Q. When was that?

 184 23 A. They have semi-annual meetings, of which

 184 24 I've missed the last couple years because of health

 184 25 reasons and other -- other conflicts.

 185 1 Q. Do you still serve on a -- this ANSI

 185 2 standard committee with Mr. Berger?

Re: [184:20-185:2]

Improper designation

SUSTAINED

185:13 - 185:21 Ohlin, Douglas 4-24-2013

 185 13 (Ohlin Exhibit 507 was marked for

 185 14 purposes of identification.)

 185 15 BY MR. HILL:

 185 16 Q. Dr. Ohlin, I'm setting in front of you

 185 17 Exhibit No. 507. Please take a moment to look at

 185 18 this.

 185 19 Do you recognize this document?

 185 20 A. Yes.

 185 21 Q. What is it?

185:23 - 185:24 Ohlin, Douglas 4-24-2013

 185 23 A. It's an e-mail message from me to Doug

 185 24 Moses.

186:1 - 186:3 Ohlin, Douglas 4-24-2013

 186 1 Q. And why did you send this e-mail?

Re: [186:3-187:25]

Relevance, 403, Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 100 of 106
Ohlin, Douglas 4-24-2013 28

 186 2 A. Why?

 186 3 Q. Yes.

186:5 - 187:19 Ohlin, Douglas 4-24-2013

 186 5 A. I didn't know if Doug was privy to this

 186 6 history, and I wanted to make sure that -- since I

 186 7 heard all this concern about the lower NRR, I wanted

 186 8 to make sure that they weren't putting pressure on

 186 9 him.

 186 10 BY MR. HILL:

 186 11 Q. What -- what history are you talking

 186 12 about?

 186 13 A. I didn't know -- as you can see there, I

 186 14 didn't know a lot about it, but I know that the -- for

 186 15 some reason, EPA fined that lab -- fined the E.A.R.

 186 16 lab for some discrepancy over how they changed their

 186 17 NRR or something. I didn't have any details on it.

 186 18 Q. Do you see the second line in the first

 186 19 paragraph where you say, "There has always been

 186 20 intense pressure on Elliott to match the attenuation

 186 21 values the Penn State Lab is able to produce"?

 186 22 A. Yes.

 186 23 Q. And what do you mean by that?

 186 24 A. Exactly what I said. If -- if one

 186 25 laboratory is getting higher NSNs (sic) with the same

 187 1 product, higher -- higher NRRs with the same product

 187 2 than you are, then somebody wants -- wants to know

 187 3 why.

 187 4 Q. In the second paragraph, do you see the

 187 5 line that says, "We are putting pressure on Elliott to

 187 6 come up with a higher NRR for this new version of the

 187 7 Combat Arms Earplug"? Then you say, "We could be

 187 8 setting Aearo up for another fine."

 187 9 Do you see those lines?

 187 10 A. Yes.

 187 11 Q. What did you mean by that?

 187 12 A. I didn't -- I didn't want them to put him

 187 13 in a position -- which I don't think he would have

 187 14 done anyway -- in a position to repeat what happened

 187 15 before, whatever that was, and I didn't know what it

 187 16 was.

 187 17 Q. Now, you're saying that we are putting

Re: [187:17-188:1]

Def Objection - Asked (611, 403)

Re: [187:17-

188:1]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [186:3-187:25]

Relevance, 403, Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 101 of 106
Ohlin, Douglas 4-24-2013 29

 187 18 pressure on Elliott to come up with a higher NRR.

 187 19 What do you mean by that?

187:22 - 188:7 Ohlin, Douglas 4-24-2013

 187 22 A. I think we're looking for explanations.

 187 23 I don't know if "pressure" is the right word there,

 187 24 but what's going on? Why, you know? And my

 187 25 explanation was it's -- they're dealing with a sized

 188 1 earplug, and they're fitting it too large.

 188 2 BY MR. HILL:

 188 3 Q. But you're not really talking about the

 188 4 fitting of this earplug in this e-mail, are you?

 188 5 A. No.

 188 6 Q. What are you talking about in this

 188 7 e-mail?

Re: [187:17-188:1]

Def Objection - Asked (611, 403)

Re: [188:6-188:11]

Def Objection - Asked (611, 403)

Re: [187:17-

188:1]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [188:6-

188:11]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [186:3-187:25]

Relevance, 403, Baker MIL 1

OVERRULED

188:10 - 188:19 Ohlin, Douglas 4-24-2013

 188 10 A. What I'm talking about is if anybody is

 188 11 putting pressure on him, for them to back off.

 188 12 BY MR. HILL:

 188 13 Q. Now, you say -- you say if we are putting

 188 14 pressure. Do you see in that middle paragraph where

 188 15 it says, "We are putting pressure on Elliott to come

 188 16 up with a higher NRR for this new version of the

 188 17 Combat Arms Earplug"?

 188 18 A. Uh-huh.

 188 19 Q. And what did you mean by that line?

Re: [188:6-188:11]

Def Objection - Asked (611, 403)

Re: [188:19-188:23]

Def Objection - Asked (611, 403)

Re: [188:6-

188:11]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [188:19-

188:23]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [188:13-188:18]

Relevance, 403, Baker MIL 1

OVERRULED

188:22 - 188:23 Ohlin, Douglas 4-24-2013

 188 22 A. We wanted him to go back and try to

 188 23 figure out why there was a difference.

Re: [188:19-188:23]

Def Objection - Asked (611, 403)

Re: [188:19-

188:23]

Def Objection -

Asked (611, 

403)

OVERRULED

189:4 - 189:7 Ohlin, Douglas 4-24-2013

 189 4 Q. Please take a look at this document,

 189 5 which has been marked as Exhibit No. 508, which is

 189 6 3M00030114. See that?

 189 7 A. Uh-huh.

191:18 - 191:21 Ohlin, Douglas 4-24-2013

 191 18 Q. So when you say that we are putting

 191 19 pressure on Elliott to come up with a higher NRR for

 191 20 this new version of the Combat Arms Earplug, were you

 191 21 referring to the change in fitting protocol?

Re: [191:18-192:2]

Def Objection - Asked (611, 403)

Re: [191:18-

192:2]

Def Objection -

Asked (611, 

Re: [191:18-192:2]

403, Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 102 of 106
Ohlin, Douglas 4-24-2013 30

403)

OVERRULED

191:24 - 192:2 Ohlin, Douglas 4-24-2013

 191 24 A. And I said before, I think we were

 191 25 looking for an explanation of why it was -- why it was

 192 1 lower, and this was the explanation that I provided.

 192 2 I thought they were fitting them too large.

Re: [191:18-192:2]

Def Objection - Asked (611, 403)

Re: [191:18-

192:2]

Def Objection -

Asked (611, 

403)

OVERRULED

Re: [191:18-192:2]

403, Baker MIL 1

OVERRULED

192:4 - 192:5 Ohlin, Douglas 4-24-2013

 192 4 Q. But you were trying to get the NRR

 192 5 increased; is that correct?

Re: [192:4-192:8]

Def Objection - Misstates (611, 

403)

Re: [192:4-

192:8]

Def Objection -

Misstates (611, 

403)

OVERRULED

192:8 - 192:10 Ohlin, Douglas 4-24-2013

 192 8 A. Sure.

 192 9 BY MR. HILL:

 192 10 Q. And why is that?

Re: [192:4-192:8]

Def Objection - Misstates (611, 

403)

Re: [192:9-192:23]

Def Objection - Vague (611, 403)

Re: [192:4-

192:8]

Def Objection -

Misstates (611, 

403)

OVERRULED

Re: [192:9-

192:23]

Def Objection -

Vague (611, 

403)

OVERRULED

192:12 - 192:17 Ohlin, Douglas 4-24-2013

 192 12 A. People would be curious as to why the

 192 13 same -- we're getting a lower NRR with the same

 192 14 earplug, that we had somehow degraded this, you know.

 192 15 It may raise some eyebrows out there among other

 192 16 distributors, end users, that we might have done

 192 17 something wrong here with this earplug.

Re: [192:9-192:23]

Def Objection - Vague (611, 403)

Re: [192:9-

192:23]

Def Objection -

Vague (611, 

403)

OVERRULED

192:19 - 192:21 Ohlin, Douglas 4-24-2013

 192 19 Q. Have you seen other earplugs where the

 192 20 fit protocol was changed after receiving one NRR to

 192 21 get another NRR?

Re: [192:9-192:23]

Def Objection - Vague (611, 403)

Re: [192:9-

192:23]

Def Objection -

Vague (611, 

403)

OVERRULED

192:23 - 192:23 Ohlin, Douglas 4-24-2013

 192 23 A. I don't recall that, no.

Re: [192:9-192:23]

Def Objection - Vague (611, 403)

Re: [192:9-

192:23]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 103 of 106
Ohlin, Douglas 4-24-2013 31

Vague (611, 

403)

OVERRULED

193:21 - 193:23 Ohlin, Douglas 4-24-2013

 193 21 Q. Have you -- do you know if 3M used the

 193 22 new fitting protocol for the NRR numbers it reported

 193 23 on the Combat Arms Earplug products?

194:1 - 194:3 Ohlin, Douglas 4-24-2013

 194 1 A. Which one?

 194 2 BY MR. HILL:

 194 3 Q. Let's say the -- on any of them.

Re: [194:1-194:3]

Improper designation, 602

SUSTAINED

194:6 - 194:12 Ohlin, Douglas 4-24-2013

 194 6 A. Since this?

 194 7 BY MR. HILL:

 194 8 Q. Yes.

 194 9 A. I'm -- I'm not -- I don't know. I'm not

 194 10 present at that -- when he does that testing, and I --

 194 11 I would assume that, based on this, that's the

 194 12 protocol that he's using.

Re: [194:6-194:12]

Improper designation, 602

SUSTAINED

194:13 - 194:14 Ohlin, Douglas 4-24-2013

 194 13 Q. Do you know if 3M told its customers of a

 194 14 change in protocol, in terms of fitting?

194:17 - 194:17 Ohlin, Douglas 4-24-2013

 194 17 A. I don't know.

228:21 - 228:25 Ohlin, Douglas 4-24-2013

 228 21 Q. Prior to your involvement with the

 228 22 military hearing protection program, was there a

 228 23 gatekeeper?

 228 24 A. Yes. There was a Surgeon General's

 228 25 committee on approving hearing protectors.

Re: [228:21-228:25]

Improper designation

SUSTAINED

229:25 - 230:2 Ohlin, Douglas 4-24-2013

 229 25 Q. Did limiting the list of approved

 230 1 protectors limit the number of companies who could

 230 2 sell those protectors to the military?

Re: [229:25-230:2]

Improper designation

SUSTAINED

230:4 - 230:4 Ohlin, Douglas 4-24-2013

 230 4 A. If it's a generic product, no.

Re: [230:4-230:4]

Improper designation

SUSTAINED

230:6 - 230:7 Ohlin, Douglas 4-24-2013

 230 6 Q. What about for -- with respect to the

 230 7 Combat Arms Earplug?

Re: [230:6-230:7]

Improper designation

SUSTAINED

230:10 - 230:10 Ohlin, Douglas 4-24-2013

 230 10 A. That was very specific.

Re: [230:10-230:10]

Improper designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 104 of 106
Ohlin, Douglas 4-24-2013 32

231:7 - 231:10 Ohlin, Douglas 4-24-2013

 231 7 Q. And you were limiting it based, at least

 231 8 for the Combat Arms product, in part, on a study that

 231 9 was conducted in 1993 or before?

 231 10 A. Correct.

Re: [231:7-231:10]

Improper designation

SUSTAINED

231:17 - 231:22 Ohlin, Douglas 4-24-2013

 231 17 Q. And your other basis was Elliott Berger's

 231 18 study on non-linear hearing devices?

 231 19 A. Yes. And there was an Air Force study on

 231 20 localization, evaluated 13 tactical hearing

 231 21 protectors, and the Combat Arms Earplug had the best

 231 22 sound localization capabilities.

Re: [231:17-231:22]

Improper designation

SUSTAINED

239:15 - 239:22 Ohlin, Douglas 4-24-2013

 239 15 (Ohlin Exhibit 520 was marked for

 239 16 purposes of identification.)

 239 17 BY MR. HILL:

 239 18 Q. All right. I'm handing to you a document

 239 19 that's been marked as Exhibit No. 520. Do you

 239 20 recognize this document?

 239 21 A. Apparently, I wrote it, but I don't

 239 22 specifically remember. What's -- what's the date on

239:23 - 240:3 Ohlin, Douglas 4-24-2013

 239 23 this sucker?

 239 24 Q. It's -- well, it says --

 239 25 A. Okay.

 240 1 Q. It references a date at the top; at least

 240 2 the date of an event.

 240 3 A. Okay, yeah. Okay.

240:4 - 241:2 Ohlin, Douglas 4-24-2013

 240 4 Q. What is this document?

 240 5 A. This is a request for a national stock

 240 6 number.

 240 7 Q. And that's for a non-linear earplug

 240 8 configured to the specifications of the enclosed

 240 9 production samples to be adapted -- be adopted for

 240 10 military use. What -- what non-linear earplug samples

 240 11 were those?

 240 12 A. This would be for the double-ended plug.

 240 13 Q. The Combat Arms Earplug?

 240 14 A. Yes.

 240 15 Q. Does this reflect your -- does this

 240 16 refresh your recollection as to whether there was

Re: [240:21-241:8]

Def Objection - Vague; Misstates 

(611, 403); Assumes facts not in 

evidence (611, 403)

Re: [240:21-

241:8]

Def Objection -

Vague; 

Misstates (611, 

403); Assumes 

facts not in 

evidence (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 105 of 106
Ohlin, Douglas 4-24-2013 33

 240 17 specifications relating to that plug?

 240 18 A. This was a justification. This wasn't

 240 19 really specifications, per se. The label here is

 240 20 justification for non-linear earplug.

 240 21 Q. When you say -- "...recommended that a

 240 22 non-linear earplug configured to the specifications of

 240 23 the enclosed production."

 240 24 So are you saying there the

 240 25 specifications is -- is being used in a different

 241 1 sense of the specification that we talked about

 241 2 earlier today?

241:5 - 241:8 Ohlin, Douglas 4-24-2013

 241 5 A. Again, I -- I know of no specification

 241 6 for the Combat Arms Earplug. This was a just- --

 241 7 justification for getting a national stock number for

 241 8 it.

Re: [240:21-241:8]

Def Objection - Vague; Misstates 

(611, 403); Assumes facts not in 

evidence (611, 403)

Re: [240:21-

241:8]

Def Objection -

Vague; 

Misstates (611, 

403); Assumes 

facts not in 

evidence (611, 

403)

OVERRULED

241:9 - 241:11 Ohlin, Douglas 4-24-2013

 241 9 BY MR. HILL:

 241 10 Q. Did you write the justification?

 241 11 A. I believe I did.

Re: [241:9-241:11]

Improper designation

OVERRULED

241:23 - 242:9 Ohlin, Douglas 4-24-2013

 241 23 Q. It makes a reference to Dr. Armand Dancer

 241 24 --

 241 25 A. Uh-huh.

 242 1 Q. -- and his colleagues --

 242 2 A. Yeah.

 242 3 Q. -- at the French-German Institute in

 242 4 St. Louis?

 242 5 A. Right.

 242 6 Q. How did you originally learn of his

 242 7 existence?

 242 8 A. Through the -- George Garinther at Army

 242 9 research lab.

Re: [241:23-242:9]

Improper designation

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 149-1 Filed 06/04/21 Page 106 of 106