Donna L. Boland, RPR, FCRR

United States Court Reporter

1 N Palafox Street * Pensacola, Florida 32502

Donna_Boland@flnd.uscourts.gov

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS EARPLUG ) Case No. 3:19md2885

PRODUCTS LIABILITY LITIGATION, )

) Pensacola, Florida

) February 23, 2023

) 8:02 a.m.

)

)

)

DATA DAY

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

(Pages 1-61)

Presented by: BrownGreer PLC

by: ORRAN L. BROWN SR.

obrown@browngreer.com

DENNIS CARTER JR.

dcarter@browngreer.com

250 Rocketts Way

Richmond, Virginia 23231

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P R O C E E D I N G S

THE COURT: Good morning and welcome to Data Day.

As you all know, this morning BrownGreer will share

its analysis of the DOEHRS data with the Court and all

interested attorneys and parties to the MDL. Before they do

that, though, I'm going to make some preliminary remarks, offer

some observations, and then they'll get started.

Let me introduce, before I go any further, the two

BrownGreer individuals here with us this morning. Mr. Orran

Brown, founding partner --

Good morning.

MR. BROWN: Good morning, Your Honor.

THE COURT: -- of BrownGreer PLC; and then Dennis

Carter, who is a data analyst at BrownGreer and has done a lot

of the legwork with this data.

Thank you both for being here.

We have folks here in the courtroom. Obviously there

are people on Zoom joining us and I believe also conference

calls, so welcome to everyone.

For those of you who don't know what DOEHRS stands for

-- and I'm going to be real basic here but there may be some

people who don't -- DOEHRS stands for Defense Occupational and

Environmental Health Readiness System, and it is a software

system used by the Department of Defense to collect, store, and

track certain health information for servicemembers worldwide.

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As it relates to this MDL, DOEHRS is the source of

audiometric data for virtually all the plaintiffs in the MDL

who have served in the military.

As both sides know, it took considerable time and

effort to obtain the data from the Department of Defense.

That's an understatement. That was due largely to the size of

our plaintiff population.

I do appreciate very much, though, the DoD and DOJ's

willingness to get that data produced to us. It's been very

helpful and I think as you'll see as we proceed this morning.

We now have a response from the DoD in terms of

audiometric data for more than 178,000 plaintiffs. A request

was recently submitted for more than 30,000 additional

plaintiffs' DOEHRS data, and hopefully we'll hear from the DoD

and DOJ in regards to that Touhy request soon.

Now, as you know, if you read my order of February

17th, this proceeding is purely informational, no party was

required to attend, no aspect of this proceeding is

adversarial, and no findings or rulings will result from this

proceeding.

The sole intended purpose of Data Day is to educate

primarily the non-leadership stakeholders in connection with

the litigation who have not been as familiar with the

audiometric data as perhaps the leadership has been over the

past several months.

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As you know, again, if you read my order, leadership

counsel has had this data for many months, and some of you may

also have had it. But I don't know that everyone has had

access to it and has had the ability to analyze it as

leadership has analyzed it and as now BrownGreer has analyzed

it.

A couple of things I'll ask you all to keep in mind as

you take in the presentation. First, on the one hand, the data

is the data, right? And, in some respects, it can and does

speak for itself.

On the other hand, when you're dealing with an

enormous volume of complex information such as what's contained

in the DOEHRS database, it's difficult to derive insights or

draw meaningful conclusions from the raw data without the

assistance of data analytics.

And like I said, the parties have had their data

analysts reviewing this data for quite some time, and then also

that's where BrownGreer comes in. And, at my request and in

using solely the parameters that I provided to them -- and I'll

speak more about that in just a moment -- BrownGreer's data

analysis revealed a number of what I consider to be valuable

insights about the inventory and about each side's own analysis

of the inventory which would otherwise I think be lost in the

sheer mass of information, because it is massive.

Now, as you all know, data can be sliced and diced in

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many different ways and, depending on the methodological

approach that's applied to the data which inherently involves

some statistical assumptions and subjective analytical choices

that can affect the outcome of the analysis, the results often

vary. And they can at times vary widely. And in my

observation, that's precisely what has happened here, and you

will see that.

The parties and their experts have taken very

different approaches from a methodological standpoint to

analyzing the DOEHRS data and, as a result, they've reached

very different conclusions about what the data says regarding

the hearing-related injuries in this plaintiff population.

There's nothing surprising about that. There's

nothing surprising about the parties' respective positions.

There's nothing wrong with their positions either. But there's

no way to marry or combine those positions because they are

completely different in the foundational approach that they

used in approaching the data.

And in fact, since I last have heard from or spoken to

leadership about their approaches, they may have changed their

approaches. I don't know. That's fine, too.

But as the judicial officer charged with shepherding

this MDL for the benefit of all interested parties, I recognize

the need for an impartial, nonadversarial analysis of the data.

And I did that for two reasons. I've told leadership what

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these reasons were. In other words, I've told them why I felt

there was a need for BrownGreer to do this, and I've told them

what I asked them to do.

I felt that a neutral middle-of-the-road approach was

necessary given how far apart the parties' conclusions were

based, again, on those very different approaches that they've

used. And I also felt that a different approach, one that was

based on the evidence from literally hundreds of Daubert

challenges and the 16 bellwether trials that were conducted

here concerning both the science of hearing-related injury and

the facts that the juries in those cases found significant,

that that might yield important and relevant insights that

neither side's approach adequately captured.

For example -- and again, I'm going to offer some

observations -- neither side's approach accounted for specific

causation in terms of the timing of the plaintiff's earplug use

relative to changes reflected in their audiometric data. I

felt this was important for obvious reasons related to a

plaintiff's ability to prove injury in a tort case, which is

what this litigation is.

Moreover, as I understand it -- and I say this based

on my communications with 3M as well as a review of the

informational brief that was filed in the Aearo bankruptcy --

3M's approach relied on impairment rating scales that, in very

simple terms -- I'm going to let Dennis and Orran get a lot

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more nuanced about this -- but in simple terms, average a

person's hearing thresholds at very specific frequencies. And

again, I say "simple terms" because there's more to the

impairment rating scales than just a pure-tone average, but

that is the starting point in an impairment rating scale.

Also an observation I made, the impairment rating

approach includes certain frequencies -- these are lower

frequencies -- that, according to trial experts on both sides,

both defense and plaintiff experts, agree are rarely affected

by noise. And so, in my view, that artificially lowers the

pure-tone average for a plaintiff claiming to suffer from

noise-induced hearing injury.

And again, significantly in my mind, at least one of

the impairment rating scales, the AMA scale, specifically

excludes the frequencies that we heard from expert after expert

after expert on both sides of the aisle that are most commonly

affected by noise, which also is obviously a problem in a case

in which the issue is noise-induced hearing loss as opposed to

some other form of hearing loss.

To my knowledge, there's not been one expert in the

MDL on either side who has ever offered an opinion on the

existence or the absence of hearing loss for a particular

plaintiff based on a pure-tone average or anything like a

pure-tone average.

To the contrary, in all of the 16 bellwether trials,

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as well as in the Wave 1 cases that I've reviewed, all of the

experts, plaintiffs and defense alike, testified that hearing

loss is diagnosed based on single frequency shifts, not an

average.

But again, there are no right or wrong approaches

here. These are just observations that I have made that I

consider relevant, and that is why I've asked BrownGreer to do

the approach that they have done because I feel like it's most

closely tied to the evidentiary record in this tort litigation.

Now, I asked BrownGreer to analyze the data from four

perspectives. There were three and then I worked with them and

asked them to move it into four or to change it to four.

There are the two party approaches, as I understand

them. One is a single frequency. One is pure-tone average,

which I'll call a pure-tone average plus because there's a

little more to it than just the averaging, but it's based on

the first and last audiogram reflected in the data.

Then a third approach that I asked them to do, which

is also single frequency, and it accounts for the timing of

earplug use relative to significant threshold shifts in the

audiometric data. This is what I was talking about earlier

when I said I didn't feel that the parties' approaches

accounted for specific causation, and so I tried to do that --

or BrownGreer has done that based on what I've asked them to

do.

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And then finally, a fourth approach, which is a

variation of the pure-tone average plus approach that accounts

for the timing of the earplug use relative to the significant

threshold shifts in the audiometric data.

You'll also hear from BrownGreer regarding its

analysis of the DOEHRS data for evidence of tinnitus, and

you'll hear the details of each approach in just a moment.

Let me emphasize a couple of final points. BrownGreer

did not select any of the assumptions or parameters used in

these analyses. As I explained to leadership in December of

last year, BrownGreer merely implemented the approaches as I

asked them to do.

The parties' approaches may have evolved over time. I

said that a minute ago. That's fine. Maybe even encouraging.

But again, as I understood it in December, there was a

significant gulf between the two conclusions.

The goal here today is transparency, transparency.

And again, I'm not here to say these are the only approaches.

They're certainly not the only ways to approach this data.

These are all reasonable approaches to the data. The

approaches I've asked BrownGreer to use, I don't suggest that

they're the be-all and the end-all.

Again, none of this is binding on anyone in any

context. You can love it, you can hate it, you can throw it in

the trash can, you can discard it, you can rely on it. It's

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totally up to you. My hope is just that it will be one factor

that the parties can consider -- that all parties can consider

that may inform settlement talks down the road. Maybe not.

Either way is fine. It's totally up to you as the parties.

This is not, again, adversarial. That's why there are

no counsel seated at counsel table. There will be no argument

here today by anyone. There will certainly be no

cross-examination of BrownGreer. There will be no post-Data

Day filings accepted in this Court.

So please do not -- you are instructed you may not

file anything in this Court regarding today's presentation.

That's just clogging the docket because there's nothing coming

out of this presentation, again, that is binding on anyone or

final. So do not do that.

Also, there should be no questioning or querying of

BrownGreer by anyone after today's presentation. That would

not be fair to the other parties. If one side is contacting

BrownGreer asking them about what they did, why they did it,

and the other side is not present, that's not fair.

So, with all of that said, if the parties want to get

together and jointly request a formal hearing on the data, we

can certainly do that. I don't know to what end because that,

too, would not be binding or final. But if each side wants to

-- we want to come to court, present your expert, the other

side present its expert, you challenge, you know, and we have a

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Data Day cage fight brawl, fine. I'll be here for it. And

I'll even make findings, if you want me to. They won't go

anywhere, but we can do that. If you feel that you need to be

able to question BrownGreer, present your own experts, make

argument, again, I'll be here for it. It just won't be today.

We can also do something sort of less formal than

that. We can have a workshop, you can question and inquire of

BrownGreer in that setting, maybe try to come up with better

ways to approach the data.

I've asked BrownGreer to put together -- it's not

going to be presented today but -- a plaintiff profile of 500

plaintiffs at random. They can also do that for any law firm.

So they can take these approaches or any other

approach but any one of these four approaches and apply it to a

law firm's inventory, they can apply it to every single

plaintiff in the litigation for whom we have DOEHRS data on.

That's a lot of plaintiffs. That can be done as well.

So you all let me know if in the future you want to

get together for either of those purposes.

All right. Those are my remarks, my observations.

I'm now going to turn the proceeding over to BrownGreer.

And again, very happy to have you here, Orran. Thank

you.

MR. BROWN: Thank you, Your Honor. Good morning. May

it please the Court?

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I am Orran Brown. And with me is, as the Court

mentioned, Dennis Carter, who is a data analytics architect,

and he and his team have been leading the digging around in the

information we have to produce the results we have and going to

share with everyone today.

And as the Court mentioned, we have all the census

form answers, the data -- live data from the census form

answers on the platform. We have all the DOEHRS data that was

obtained by request by plaintiffs leadership and given to us.

And the question that we were given -- or the task we were

given was: What can we learn from that? How can we mine or

dig into that data and find out what it can tell us?

And as the Court mentioned, there are various

approaches and methods to attack the data. We're going to

share four of them today, four different approaches. There are

other ways to look at it. We're not medical experts and, as

the Court mentioned, we're completely impartial about this.

We're not here today to say that any one of these approaches is

preferable or better than the others. There are other pathways

to look at the data.

The bottom line is, if someone gives us the parameters

they'd like to explore in this information, we can tell you the

results or we can tell you it's not there. We can slice and

dice this information in many different ways. Today we're

going to look at four ways.

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And we are sharing the screen with people on Zoom.

They should be able to see the same slides we're seeing here.

But this is what we're going to walk through today, four

approaches about hearing loss, comparing the outcomes in the

information from those approaches, and then looking to what we

can learn about the tinnitus claims from the DOEHRS data or the

census form information or medical records we have.

And so first I want to set the stage about the

populations that we're talking about. The Court mentioned some

numbers, but we do want to make sure we understand, of all the

plaintiffs who have been in this MDL, the ones we have

information on are the ones on which we could perform this kind

of analysis.

Originally there were the numbers that we're looking

at in terms of total plaintiffs, less the dismissed and

withdrawn and closed, and we get to the 234,000-plus number of

active plaintiffs who are in the MDL still. So that's --

THE COURT: Let me interrupt you just a minute, Orran.

I apologize.

This box that's at the top of the monitors, is that

our box?

MR. SANDERS: Yes, ma'am.

THE COURT: Does it have to be there?

MR. SANDERS: Yes, ma'am.

THE COURT: You can't move it?

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MR. SANDERS: It's been that way since we got it.

Unfortunately, we can't, because of the Zoom call.

THE COURT: All right. Well, I don't know what this

is going to do to some of the other slides, Orran. But if you

can -- just because you can't see it, is it 382,474?

MR. BROWN: Yes, we can work around that. The total

box is all the plaintiffs originally in this MDL, the 382,474,

which is the number that's partially hidden by the camera icon.

THE COURT: Sorry about that.

MR. BROWN: And, yeah, we worked on that, but in the

system there's no way to move the box. But, yeah, I'll try to

make sure we can all see behind the screen there.

THE COURT: Can you go back?

MR. BROWN: You bet.

THE COURT: The second line, that is the number of

cases that have been dismissed, withdrawn, or closed?

MR. BROWN: Yes.

THE COURT: 147,876. And then the active number of

plaintiffs in the MDL, as of I'm sure a recent date, 234,598?

MR. BROWN: Yes, correct, Your Honor. And of course,

our analysis then is looking at the active plaintiffs. We have

not tried to figure out, of those who have been dismissed,

withdrawn, or closed, what the data might show about them

because --

THE COURT: I asked you not to.

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MR. BROWN: -- we're past that.

And then we talked about census form information

because we have all that data. This shows us, in terms of

those active plaintiffs, we have a census form submitted by

over 228,000 of them. There's about 6,100 who don't have a

census form. Most of those are more recent -- I think it's

nearly all of those are more recent filings that haven't met

their deadlines yet.

But we have -- among the active plaintiffs, we have

census forms on over 228,000 of them submitted on the system,

and we have that information live because it's submitted on the

live platform. Today we're going to be talking about

information from the census form answers that we're using for

purposes of these approaches.

And so very quickly these are -- what we're looking at

here is the census form question 2 which asked about serving in

the military and which dates a person was in the military, and

then asks for duty stations. And this is the question 2b where

we get to information about did you use the Combat earplugs,

the Combat Arms Earplugs, and if so, when, when did you start

using them and then when did you stop using them.

So this is -- we're going to talk about those

parameters, about picking the audiograms within the data to use

for this analysis, and one of the approaches is trying to match

up the audiogram testing with when they started or stopped

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using these Combat earplugs.

This is the question in the census form that gave us

that information. I think throughout the census form process

there was some concern that this had not been answered because

it was -- seemed to be kind of tied to duty station and

occupational specialty.

And so, in the addendum, there was another effort to

harvest this information about when you used the earplug, did

you use the earplugs. And so these questions 2 and 3 in the

addendum were drawing upon those answers to be able to try to

pinpoint when a person started and stopped using the Combat

earplugs.

There were questions in here about injuries. We're

going to talk a little bit in a few minutes about what the

assertions are in the census form about hearing loss, hearing

loss alone, hearing loss with tinnitus, or tinnitus alone.

These are the questions in the census form that we're pulling

those answers from.

There were also questions about when you thought the

injury started. We're not really using that today. That's

another parameter or another input you could try to match

audiograms with injury, but today we're not doing that. These

answers are really not complete and it's self-reported. So

we're not using the injury date today, but it's another angle

that could be used to attack the information.

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So this Figure 1, the title is the active plaintiffs

by the injury they asserted in their census form. So we looked

at the question where these answers come from. And of the

234,598, which is the big number in the center, active

plaintiffs, we have this distribution about what injuries they

have stated they had incurred.

And we use the word "assertion," "injury assertion."

That's not to disparage that we don't believe it. It's just

that it's stated or reported as to what injuries that are being

claimed.

The bulk of this 131,000 number in the bottom left, 56

percent of this population of active plaintiffs have asserted

hearing loss and tinnitus. There's a group that asserted only

hearing loss that's another 5-and-a-half percent. And the

tinnitus-only claim is 71,408, so it's about 30 percent of the

active plaintiff population.

Down here in the bottom right we have some numbers of

active plaintiffs that we cannot do the injury pinpointing on

either because they haven't given us a census form yet so

they're new cases or there were options in the census form

answers to check "other" or the "not specified" means they

didn't answer it or they gave us some answer that doesn't

really work, so they didn't say tinnitus or hearing loss, but

they chose some response that doesn't allow us to channel them

to one of the categories of hearing loss or tinnitus.

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But we do have injury assertion information on a lot

of the active plaintiff population from the census form, and so

we keep kind of narrowing down the population we can focus on

today to try to see what the data tells us about these

assertions that are made in the census form.

The Court mentioned the DOEHRS data system. We did

get the information that the plaintiff leadership had requested

of the DoD. This is the dates of production that -- in 2021,

2022. There's a request made in January that we don't have a

response to yet. But we got all this data from the DoD that

was requested and inputted into our system.

How many people. Well, we know we have 234,598 active

plaintiffs, and that's the top box. In response, we got DOEHRS

data back on 178,040 of that population. So we have this

wealth of information on 178,040 active plaintiffs.

There's 12,042 that were turned in to the DoD, but we

didn't get a response. We think, in some instances, that's

because the Social Security number was wrong, there was

something that didn't match up in their system, or the data

just wasn't there because --

THE COURT: Yeah. I'll interrupt for a minute. We do

know from the DoD that, when DOEHRS system went live, there

were command-level units that simply did not upload their

audiometric data into DOEHRS. So there are some plaintiffs for

whom there is no DOEHRS data for that reason. It's not the

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plaintiffs' fault. It just isn't there.

MR. BROWN: As best we could tell, Your Honor, it

rolled out in January of 2006 maybe, and the commands were

supposed to backfill. I mean, we have data in here on

audiograms done in 1984, so a lot of them did, but apparently

there are gaps in what was loaded or placed in the database

once it was available.

And then I mentioned this recent request, there's

another 30,636 that are in the January request. We don't have

a response to that yet. But once we do, we'll put that in the

same system and be able to run the same analysis and all that.

There's 13,880 that have not been submitted along the

course of time that this has been working along. I think some

of that is there's a nonparticipating law firm, some of that

are people who used these -- or said they used them only in

civilian situations. Some of that are plaintiffs where we

don't have a valid Social Security number or we have something

that's obviously wrong -- 1, 2, 3, 4, 5, 6, 7 -- so they

couldn't be submitted.

THE COURT: And we're trying to drill down more on

that.

MR. BROWN: The goal is to get as much information as

we can on all these folks. And we haven't given up on them, I

think, but we don't have it for today because it didn't come

back to us.

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So then we get to this net number of active plaintiffs

with information in DOEHRS, 178,040, and so let's go back to

what injuries that group is asserting.

So 112,257 asserted hearing loss in their census

forms, 56,159 asserted tinnitus only, and then 9,600 are in

that category where we don't really know what injuries they're

asserting.

But we keep kind of narrowing our focus down to the

people that we can really talk about with DOEHRS data, active

cases and asserted hearing loss either alone or with tinnitus,

or asserted tinnitus only, and see what the data can tell us

about those assertions. And so we're working with this

population as we move ahead in this discussion.

When we got the DOEHRS data, we had to get a data

dictionary -- I don't expect anybody to read this, this is

pages and pages -- so that we could understand what the fields

in the data meant. Because there's so much information in here

taken from the audiogram tests that we have to be able over the

course of time -- there's some plaintiffs in here that have one

audiogram, there's some that have many. We think the --

There was one person that had, Dennis, how many? 86,

87?

MR. CARTER: 87.

MR. BROWN: The data says that person had 87 tests

over the course of his service. So there's a lot of

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information, and we had to figure out how to use it. There

were in the information 89 fields -- think of columns; there

were almost 3.9 million records -- think of rows in a

spreadsheet. And then the data points, the cells that that

meant, there's almost 344 million data points in the DOEHRS

data. And so we learned from this dictionary how to make sense

of it and use it for analysis of what it tells us about the

hearing testing.

One thing that we were curious about and the Court was

curious about was does all this information mention use of the

Combat earplugs, because there are spaces in the forms that the

military uses to indicate the type of hearing protection that a

serviceperson is wearing at the time. And what we concluded

was that the data in the DOEHRS data is not really a reliable

place to look to show product use.

There are like 10 percent of them, as it shows in the

top right, where it's mentioned in the data. There's 89

percent where it's not mentioned, it's just not in there. We

don't think that means that they didn't use the Combat earplug;

it's just not -- we can't verify the use in the information

that's in there. It's just not there. So it didn't help us a

lot on product use.

So we ended up -- let's think about what we can learn

about the testing results, about hearing and hearing changes or

hearing levels or hearing sensitivity levels. The Court

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mentioned four approaches. This table lists the four

approaches.

So, when we're talking about hearing performance or

hearing sensitivity levels, you have to decide, well, which

tests are you going to use, either one or a starting point and

an end point. If you're trying to figure out how a person's

hearing performance or sensitivity changed over time, you have

to decide, well, where do we start and where do we stop, and

what are we going to do with the information. You know, are we

going to look for changes in the response from one to the next

or some average as the Court mentioned.

And so today's four approaches, the first two are

measuring shifts in performance at various frequencies and

decibel levels from one test to the other. It's trying to look

at how you perform on one test in terms of the sound levels you

can hear and then a later test and the sound levels you're able

to hear then and how it's changed.

And so we're using as the starting point in that one

the first audiogram that's in the data, the very first one, and

the last one is the last one in the data. It's just bracketed

on bookends of whatever information is in there from first to

last.

This, I think, is the approach the Court mentioned is

kind of the plaintiffs' counsel approach.

THE COURT: As I understood it.

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MR. BROWN: As we understand it. And so measuring

shifts between the first one in the data and the last one in

the data.

The second one is also looking at shifts but, as the

Court described, we're trying to peg that a little more closely

to earplug use. And so we're using the information in the

census form about when you used the earplugs and trying to find

the audiogram that is nearest the start date of earplug use and

the end date of earplug use.

And this says reference audiogram. That first

audiogram that we're using is the reference audiogram, which is

the way the system describes the baseline. There are -- as

we'll see in a moment in the forms, they keep track of a prior

audiogram and a current audiogram and measuring the current one

against the former one, which is the baseline reference.

THE COURT: When you say "they" you mean the DoD?

MR. BROWN: The DoD, the way they keep the information

and what they use it for. And so, in this approach, too, we're

measuring the shifts between the audiogram -- it's a reference

audiogram at the start of earplug use and the one that's

nearest the end of the earplug plug use. They always --

obviously doesn't match exactly, but most of them are within a

year or so of those start and end points. And measuring the

shifts between the two, we'll see what that tells us.

The third approach and the fourth approach are the

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averaging. It's the AMA impairment rating which starts with

this pure-tone average approach and then applies other steps to

it, and we'll see what the formula is. But we're doing that

averaging approach and its impairment percentage rating on the

same audiograms we're doing in the first two approaches.

In other words, we're looking at let's do the

averaging on the first and the last and do it on the one that's

nearest earplug use start and earplug use end and see how it

comes out, do they come out alike or whatever the different

approaches, what does it tell us about levels of hearing

impairment or levels of hearing changes from one point to the

other.

THE COURT: And again, what I understood to be -- can

we go back, Dennis, to the prior slide -- to the nearest of the

plaintiffs' approach is No. 1, and what I understood nearest to

the defense's approach at one point in time was Approach No. 3.

And so, hopefully it was clear from my comments and now from

Orran's, but 2 and 4 were something I added, right?

MR. BROWN: Right, Your Honor, understood.

And let's see what we learned. Again, we also here

have to decide our populations for this first approach. And

the Court and the lawyers who have been living and breathing

this, they're much more familiar with this than we can be. But

just as a reminder, in the DOEHRS data there are hearing

responses on these tests that are recorded at six frequencies

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from 500 to 6000 hertz, with that being the pitch, measuring

the pitch that you can hear.

And this R line here is, say, your first audiogram

that we're looking at, the reference audiogram, the baseline.

And as the test is administered, then your response or the

pure-tone that you can hear at least I think 50 percent of the

time that it is recorded, at what sound level is necessary for

you to hear it. The higher the decibel loudness the more

impaired your hearing is.

So the higher the score, it means it's a louder sound

it takes for you to be able to hear it, which means your

hearing is not as good as if your score is lower at a lower

decibel.

And so these two lines here are showing two test

results at different times, the top one being the reference and

what the sensitivity response levels were at that audiogram,

and then the later test, the A line is the end point, whatever

the one we're using as the end point. And then measuring

shifts is, all right, at each frequency how did it move. Like

we've illustrated here a 40 decibel shift at the 3000 hertz

level between the earlier test and the later.

So, when we talk about shifts, that's what we're

talking about, it's at each frequency did it move up or down.

And we're looking here for positive shifts, meaning higher

numbers, which means declining hearing responses or capability.

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There are negative -- sometimes your hearing improves from one

test to the other. Today, when we talk about shifts, we're

looking for positive, you know, plus a certain number of

decibels.

So that's what the data contains, and we learned where

to find that and how to find the reference audiogram in the

DOEHRS data.

We still have to define our population because doing

this approach requires two tests. We have to have one at the

beginning and one at the end. In the DOEHRS data there's this

7,632 or almost 7 percent of them who have only one audiogram

in the data. So we can tell what's on that audiogram, but we

can't tell anything beyond it because there's not a later one

to compare it to.

And so, when we're doing this bracketing of first and

last audiogram, we can do it on 104,625 active plaintiffs in

the DOEHRS data who have more than one audiogram. Sometimes

they're close together, sometimes they're far apart, but at

least we have two to work with. We have to drill down to the

populations we can do the analysis on, and this is now 104,625

active plaintiffs.

What did we learn from it?

All right, so this is one take on it. In measuring

shifts from that first audiogram to the last, we bucketed these

in shifts of kind of increments of 5 until you get to the

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higher decibel levels or higher shift numbers. And what we did

here was look at the maximum shift in any frequency between the

earlier test and the later one. It could be that there were

shifts in more than one frequency. It could be there was a

shift of 5 in one, a 10 in one, and 40 in another.

There's so many layers behind this that, again, there

are different ways to slice and dice the information in terms

of looking at which hertz is more important, which frequency is

more important, which degree of shift is more important, which

degree indicates severity levels of impact or loss of hearing.

How do you dig into the many layers behind this? For

today's purposes, this is the biggest shift we saw in the data

from one test to another at any frequency or maybe more than

one frequency, but a plaintiff is channeled into one of these

bars here by virtue of the largest shift we saw.

THE COURT: So this is in either ear?

MR. BROWN: In either ear, exactly.

THE COURT: Right. I'm going to stop you for just a

moment.

I need to ask for everyone who is present today by

Zoom or telephone connection to please mute your Zoom or your

phone. Apparently there's a problem, somebody's line is not

muted, and the rest of the folks are getting a lot of

background noise. So please confirm that you are muted if you

are remote. Thank you.

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MR. BROWN: Thank you, Your Honor.

And so, yes, this is either ear. Could be both ears,

could be left, could be right. But again, that's another sort

of degree of analysis that could be done as a shift on left,

shift on right, shift on both.

When we're looking at one test and the later test and

measuring changes from one to the other, there are so many ways

to look at the changes, the shifts, which frequencies, which

frequencies matter more than others maybe. We're not here

today to opine on that. But this does depict --

THE COURT: But you could?

MR. BROWN: We could.

THE COURT: I spoke about workshop on a different day,

you certainly could drill down into those categories.

MR. BROWN: We could take any one person, any group of

people, any collection of people, as long as we have the data,

we can tell you which -- and you pick the audiograms -- what

were the shifts between this one and that one and which

frequencies.

And this distribution pattern we see here in this

graph is showing that there were folks who show -- that didn't

have a shift. There were some that had -- the biggest shift

they had was a 5 decibel shift changing from 20 to 25 or

something or 10 to 15.

Then you move on up and see the folks that had a shift

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of 10 decibels, 15, 20, 25 to 45, which is the biggest change.

Obviously, you get much bigger changes as we go to the right

across the screen. And then some who had changes of 50 decibel

levels or more, the worst or biggest, the maximum shift.

And so this is one way to slice this information. In

other words, this tells us that, yes, there are folks who had

shifts between one and the other, there's some that had smaller

ones as their worst one, there's some that had some pretty

major ones.

To dig behind that even further, you'd look at like,

well, which hertzes, how many of them, because some of these

may have had shifts of 50 or more in more than one hertz. And

so, when you start trying to stratify severity of impact or

injury, you can stratify it in a lot of different levels. This

is one of them. And so that's our first approach using the

first and last audiogram.

Now we're going to do the same shift analysis between

when you started using earplugs and when you stopped using

earplugs, trying to match the testing to the period of time you

were using the Combat earplugs.

And again, we have to figure out, well, how many

people can we do that on, because we can't do it on everybody.

There's this 112,257 number of people who allege hearing loss,

we have DOEHRS data on, they're active cases. But we need the

earplug use dates for these folks to pick an audiogram around

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that time. We have to take that from the census form, what

they told us in the census form in those answers to those

questions we looked at earlier.

And so, for this group, we have use dates for about 55

percent of them, 62,111 people. We don't have use dates for

almost 45 percent of them because it's not answered in the

census form, it was left open or "to be determined" or

something or "will supply later."

We can only use the data we have, and we have it on 55

percent of this population so that we can now find the dates

they say they started using the Combat earplugs and when they

stopped and find the audiograms that were around those times.

That's what we're trying to do in the data -- or we did do in

the data.

There are other ways to add to this population. If

you just assumed, if you're in one branch of the service and

you have the start date of service and you have the end date of

service, that you used the Combat earplugs the whole time,

provided that it was from, like, the second half of '99 until

2015 when they were actually in use, you could get this up to

about 85 percent, if you made that assumption. We didn't do it

today. We stayed in the more conservative way of, all right,

they told us the use dates and we're going to go with that.

We had to put some date restrictions in here because

there were some folks who said they used the earplugs in

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earlier years than they were available. We had to put a late

'99 and a 2015 date restriction in here so we didn't pull

audiograms that were before the earplugs were being used even

or long after they were being used.

So we did set that sort of limit or control on the

information we were pulling from for the 62,111 we could do

this on. So we're using this -- this is now in the smaller

population because we had more people we could do first and

last. Here we have to have the earplug use dates.

Where does all this information come from? Well, the

DD-2216, which is the form that the Department of Defense uses

to record these tests, we're just looking at this form and

seeing all these data points in terms of measuring the

responses at the frequencies. And they even have an indication

of whether they think it's a yes/no significant threshold

shift.

This is the section where there was an opportunity at

least to put in what type of hearing protection was used. We

don't have that in, as we saw, the bulk of them. All of this

information, this is the part of the 344 million fields or data

points we got, and it refers to a reference audiogram. When

they're taking a test, they'll try to refer back to what your

baseline was, and so that's where we get information about

reference audiograms.

This 2215 document form is one that's used for the

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reference audiogram, the one that they think this is your

baseline, this is going to be your baseline. Again, it's still

capturing the information about your response levels or

sensitivity levels at each of these frequencies and what your

decibel response -- how loud it has to be for you to hear it.

THE COURT: And these forms DD-2215 and 2216 were

exhibits in every trial.

MR. BROWN: Yes, okay.

THE COURT: So the parties, at least those who were

involved in any of the trials, are familiar with these forms.

MR. BROWN: So what did we -- in this approach, then,

what did we see in the data about, again, either ear, maximum

shift we saw among the population of the 62,000 that we could

do this on from the audiogram that's around the time you

started using the earplugs and around the time you stopped,

what were the changes in those tests.

And so we're looking here at the same kind of

distribution pattern or at least depiction of it in terms of

shifts of 0 or 5 or 10 or more. And so, again, the biggest

shift we saw in the data, either ear, could be one hertz, could

be more than one hertz.

Again, we're all -- the same layers behind this about

which hertzes matter, how big the shift matters, but again,

this is what we see. We have these folks in these buckets

depending upon how big your shift was --

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THE COURT: And your results changed, I mean, from the

first approach -- for instance, if I remember, I think there

were more with shifts of 50 dB or greater in the second

approach than there were in the first, but then you see from

the second and the first more people in the +25 to 45 dB move

to -- excuse me, let me go back -- looks like they actually

move over in the bar graph on greater than 10 dB is higher.

So, again, when you set the parameters or you change

them, obviously your results are going to change.

MR. BROWN: Yes, you get different outputs. And we're

going to see -- at the tale end of this we're going to circle

back and compare all four of these approaches and we'll see

exactly what you're talking about, Your Honor, in terms of,

well, what's the difference between one or the other in terms

of the distribution pattern of shifts that you see between one

test and the other.

Let's go to Approach 3. And now we're moving into the

averaging. Because we talked about, well, which hertzes matter

and do we measure shifts on one frequency or a bunch of them.

And so, in the ones that we've seen so far, we're looking at

the maximum shift in any frequency -- could be one, could be

more.

These approaches that used an averaging or a pure-tone

average and then other steps in it are blending the hertz

response scores together to try to come up with some overall

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impression. As opposed to looking at any particular hertz over

time, you're looking at an overall score or rating based on all

of the hertzes or some of the hertzes, depending on which ones

you average, and then comparing that baseline score to a later

score to see what the change was.

This AMA impairment guide, which comes from I think

the third edition of the AMA guide to measuring impairment --

not just hearing but all kinds of physical impairments for

purposes of, like, assessing disability compensation, it has

several steps in it that -- and this comes from the most

recent, I think, third edition in 2023.

The first step you do is the averaging piece. And you

take the 500, 1000, 2000 hertz and 3000 decibel scores, add

them together, and divide by 4 to get an average score on those

four hertz levels. It doesn't do the 4000 or 6000 hertz, it's

not part of the scoring. It leaves off the higher hertz levels

in their steps. This is their formula.

That gives you a decibel hearing loss number that's an

average of the four. If you had 25 on every one of them, your

average would be 25 decibels. And then you take that hearing

loss and you subtract 25 decibels. They call it a fence. It's

kind of -- the assumption, I think, is that, if your hearing is

around the 25 decibel level, it's normal, is the assumption

here. I'm not saying medically that's correct, but that's the

assumption.

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And so you take the score you got and the average and

you kind of give back or you set a fence, they call it, of 25

decibels and see what's left over. If you have a higher score

than 25, then you've got some loss that you multiple by

1-and-a-half percent to get to a rating.

THE COURT: Right. And just for those who may not be

as familiar with the trial records as others, depending on the

organization standard that is being applied, they could be

anywhere -- that floor could be anywhere from 15 dB or greater,

20 dB or greater, and of course 25 dB or greater. And with the

AMA with this impairment rating guide it's 25.

MR. BROWN: Yes. And as we understand it, the

pure-tone average, which is part of another averaging approach

which gives you a decibel number, doesn't do this added step of

a percentage rating impairment. It says, if your score average

is 25 or less, then you have normal hearing.

THE COURT: The average, right?

MR. BROWN: The average. So these things set that 25

kind of as a threshold to say you have to have a number higher

than that to have hearing loss under this disability standard.

And they also translate those scores -- what we just

saw was on one ear, to get your percentage rating on one ear,

and then you do it on both ears to get to what they call the

binaural hearing loss formula. They multiple your better ear

percentage by 5, add your worst ear percentage, divide that by

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6, and you get a percentage rating for both your ears combined.

And then they take that rating and you end up -- if

you have a percentage greater than zero, it means you have some

hearing loss under this formula. And it can be 5 percent, it

can be 20 percent -- if it's 100 percent, then that's complete

hearing loss, you're basically deaf.

And the report form that this is done on, the AMA

report form, that sets out this whole formula. It walks you

through, you enter the scores, you divide by 4, you take away

the 25 fence, you multiply it by 1-and-a-half, you end up with

these percentages. And that's what we are doing then in the

AMA approaches.

THE COURT: And again, very different from a single

frequency analysis.

MR. BROWN: Yes, totally different. It doesn't use

all the frequencies, and it gives equal weight to each

frequency, and it's an average. So you're not looking at

shifts in any particular frequency. You're looking at changes

in your percentage score from one to the next.

And so it is blending all -- we talked about how which

frequency matters. Well, this blends at least four of the

frequencies together and divides them and gives you a

percentage impairment rating.

And they also go through the next step in terms of --

we talked about comparing baseline to current test. The AMA

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has this apportionment formula, it calls it, which is the word

that's blocked by the icon on the screen, that says, all right,

well, you take your total impairment rating, which is whatever

your score is today, your test today, you look at the test

before that we're considering reference or baseline, and

subtract the two.

And it's trying to -- the way the literature talks

about, it's trying to account for different causations, it's

trying to account for, you know, where you started. If you had

some level of a hearing impairment when you started, then this

takes that out of play and is measuring the change from

wherever you started from to the end.

But they call it apportionment to basically match the

baseline, subtract it from your current, and you end up with a

percentage score. Like if you were 20 percent on the first one

loss and 40 percent on the second one, your net score is 20

percent because it's trying to measure the change between one

to the next in terms of this averaging formula.

So who can we do this on and what did we find out?

Again, we have to use plaintiffs in the data that have

more than one audiogram because it takes two to do this

apportionment thing in it. We applied that formula to the

first and last audiogram in the data in this Approach 3, and

this is where it came out.

The numbers you see here, like hearing loss in left

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ear only, 6,317, that means they had a rating percentage more

than zero in the left ear; rating percentage more than zero in

the right ear only; 6,366 then had more than zero percentage in

both ears.

Combined together there are, under this formula,

16,017 active plaintiffs with more than one audiogram in the

data who have more than zero percent score under the AMA

impairment rating formula in either or both ears.

THE COURT: Out of 104,000?

MR. BROWN: Out of 104,000. We'll see in a minute

kind of what that looks like in terms of how these compare --

these different approaches tell us about the population and the

buckets they're in.

So those are our numbers. If you look at, well, what

percentage -- we have more than zero, and this is the

distribution pattern of that. There's 5,933 of them who have

left ear 1 to 10 percent loss. This is left ear. And you move

up to see lower numbers that have greater loss. I mean, these

up in the 70 to 100 percent, that's a lot of hearing loss or

impairment. But that's the distribution pattern left ear for

the people who we can do this on.

This is the right ear. Kind of similar but, again,

the lower percentages tapering off to the higher percentages.

This is both ears after that net result, you back out the first

one from the second one and you still have a greater than zero

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percentage in both ears.

These are the numbers. And so the populations under

this averaging formula and the disability rating are smaller.

In terms of people who have some measurable shift, you end up

with groups here of greater than zero percent hearing loss that

are smaller populations. And we'll see at the end kind of how

that stacks up.

So that's the first and last audiogram. Again, we're

mirroring the first two approaches on shifts. And so in this

Approach 4 we've got -- let's use the ones around Combat

earplug use dates, start and end. The same audiograms we used

in the other two approaches, let's see what this average tells

us about the scores on those. This is what we learned on that.

Again, after you do the formula, run the formula

through -- all the data through the formula, back out and do

the apportionment step, take out the first one, we've got these

numbers of hearing loss -- of the 62,000 where we can do this

on with dates of use, 3,108 have more than zero percent in the

left ear; 1,731 right ear; both ears 2,542 more than zero;

7,381 in either or both.

So the population, again, if you're measuring or

bracketing when you use the earplugs, this is what the

apportionment formula and the percentage average will tell you

about people that have in the DOEHRS data a hearing loss of

greater than zero percent.

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THE COURT: Out of the 62,000?

MR. BROWN: Out of the 62,000.

THE COURT: And is the distribution the same? Oh,

you're going to the next slide.

MR. BROWN: We'll see it. Yeah, this is how that

breaks down. It looks a lot alike, again, bunched in the lower

percentages left ear, right ear, both ears bunched in the lower

percentages, tapering off as we get up -- and these are numbers

of plaintiffs in each of these categories -- and as you move up

with larger hearing loss numbers or percentages scores, rating

scores.

And so let's see, all right, we've got four

approaches. Where do they come out? How do they compare to

each other?

And this Figure 13 that we're looking at, which is in

the part that's blocked out, it's comparing the Hearing Loss

Approach 1 and Hearing Loss Approach 2. So here are the two

approaches that deal with shifts. Just using different

starting and ending audiograms, how do they look?

And so the Approach 1, which is the red color, those

are the percentage of the population we could do it on who had

shifts -- maximum shifts, either ear, in those categories. And

so they're pretty close in a bunch of places in terms of --

Approach 1 in the red, first to last audiogram; Approach 2 in

the blue, earplug-use-start/earplug-use-end audiograms, maximum

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threshold shift of 0, 5, 10, 15, and up.

You can see in the -- some of them have higher -- like

in the shift of 10 decibels there are a higher percentage of

that population in the earplug use date Approach 2 than in the

first and last.

As you get up in the higher numbers of 25 to 45, there

are more people that had that degree of maximum shift, any

frequency, either ear, from first and last audiogram.

So some of these are kind of within a margin of error,

because there're like 13 and 12 percent, they're very close

some of them. They show some differences in outcome depending

which audiogram you're using.

THE COURT: This is all single frequency audiometric

data, single frequency, 500 to 6000 hertz measured. And from

what we know, again, back to the evidentiary record in the

litigation, depending on what society's or organization's

standard for hearing loss in measuring hearing loss you're

considering, you may be at 15 dB or greater for loss or it

could be 20 or it could be 25?

I mean, this is a big dispute between the parties.

MR. BROWN: Understood.

THE COURT: And it was a big dispute and debate

amongst the experts in the trials.

So where does normal hearing end and mild, moderate,

and severe begin -- or mild begin and then on to moderate and

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severe. And again, depending on what organization you're --

standard you're looking at, it could be 15, it could be 20, or

it could be 25. And so just people need to understand that.

If you're looking at this and saying, okay, well, out

of this population who is considered injured, I would say any

of the individuals in less than the 15 dB -- but these are

shifts, for one thing, so it's a little more complicated. But

if you have less than 15 dB shift in any ear at any frequency,

you don't have hearing loss under any standard that we heard

about in any trial.

Again, just my observation.

MR. BROWN: Exactly right, Your Honor. And we're not

here to say where you draw the line on that. But if somebody

told us where they wanted the line, we could tell you who is on

one side and who is on the other.

THE COURT: Well, and I bring this up only because,

under the AMA approach, it does tell you who is injured --

MR. BROWN: Yes, exactly.

THE COURT: -- under that approach, who's injured and

who's not.

MR. BROWN: If you're more than zero, you're

considered to have some level of loss. Here it's really a

question of which degree of shift matters.

THE COURT: What standard you use.

MR. BROWN: Okay. So let's keep going.

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And this is a pause for -- as a little bit of a

detour. We talked about which hertzes are included in the

various methodologies and, you know, we're looking at all the

hertzes in the first two approaches.

The AMA averages the 500 up to 3000, not all of them.

And we were asked to try to isolate the scoring in the 500

hertz and the 1000 hertz only, the lower pitches, to see how

that affects the results.

THE COURT: And I asked you to do that.

MR. BROWN: This is the distribution pattern of

maximum shifts either ear, and this is using Approach 2, which

is the audiogram start of use of the earplugs, audiogram at the

end of use.

If you're looking only at 500 hertz and 1000 hertz,

this is the distribution pattern. There are more people to the

left of the screen which have smaller maximum shifts of 5 to 10

decibels than if you -- this was all the hertzes. See the

difference. If you're looking at 500 or 1000 there are smaller

maximum shifts at 500 to 1000 hertz than overall, which is

looking at all the hertzes you end up with more people with

larger shifts.

I think the takeaway from this is, yeah, these lower

pitches show smaller shifts. They also mean that it kind of

brings down the AMA averages because these hertzes are in here,

your scores are -- lower decibels on them, it's going to bring

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down your overall impairment rating on the average.

So one way to look at it, one take on it is, all

right, isolate this hertz or that hertz or these two hertzes

and see how it affects the data. If you're bucketing people,

then let's figure out which of these matter. The point of this

is these lower hertzes do kind of affect the overall outcome

compared to looking at all of them.

All right, this is -- the Court mentioned earlier, all

right, well, let's see what we learned from all four of these

approaches and how they kind of stack up against each other,

the first two being the shift approaches.

And again, we've got these color codings in here to

show 5 or 10 or whatever. And again, where you draw the line,

like if you said, all right, a shift of 15 matters, then that's

this from 16 percent up. If you said 20 is what matters, then

it's the 13 percent up.

But you can see the first two lines or bars going

across Approach 1 or Approach 2, measuring shifts, maximum

shift, either ear, then using the different starting and

stopping points of the audiograms, there's some differences.

Again, we saw this earlier in the bar graphs, but you end up

with numbers that are kind of alike each other. But again,

it's a question of where you draw the line about which degree

of shift matters as to whether you look at persons who are

above a certain level here are considered to have an injury and

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persons who are below it don't.

On the AMA approaches, it obviously is a different

story because their formula with the 25 fence and using four of

the hertzes, and you end up with 85 or 88 percent of the people

who have zero or less. There's no hearing percentage loss

rating on 85 or 88 percent of the people between those two

audiograms under those two approaches. There's 15 percent or

12 percent of them who have more than zero.

And this is basically telling us which approach you

use is going to affect where you come out, what angle you take

on the data, the significance of a frequency or group of

frequencies or averaging of frequencies. What we learn, you

know, we can apply different approaches, but whatever approach

you take ends up with different outcomes in terms of your

conclusions you make about, well, who is in an injured bucket

and who is not.

THE COURT: And we also know -- I think -- I don't

remember the slide number, but for that 15 and 12 percent,

those are going to be less severe hearing loss as compared to

the others.

MR. BROWN: They are because they are --

THE COURT: I mean, it's injured.

MR. BROWN: -- down in here.

THE COURT: Yes.

MR. BROWN: Yes. The percentage scores are going to

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tend to be at a lower end under that formula like we saw in

those slides.

So that's a comparison of the approaches on hearing

loss.

And now we did take a journey through tinnitus as to

what we could learn from the census form data or the records

that have been submitted in the MDL process or the DOEHRS data

about tinnitus. And so let's see what's in there about it,

because, you know, tinnitus -- there's no test for tinnitus

apparently, but what can we learn from here about some markers

for it.

Among the -- it's 158,999 active plaintiffs who have

asserted in their census form the injury of tinnitus either

alone or along with hearing loss. It's a total of almost

159,000 plaintiffs. So what can we tell about tinnitus from

any of the information we have?

We first look to see, all right, the plaintiffs have

been submitting medical records in the MDL on MDL Centrality.

We have lots of records. We have lots of things that are

medical records and reports of treatment and testing. We have

a lot of documents that aren't medical.

So we went through all the records that are in the MDL

Centrality platform and segregated them by what's a medical

record and what's not. And then the Court gave us some search

terms to see, all right, did anybody mention tinnitus in the

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records.

THE COURT: And let me just, so everybody knows, this

came from my review of expert reports and trial records in

terms of the search terms given to you all for your queries.

MR. BROWN: Understood. And, of course, we could do

this records query only on people we have medical records on.

This slide is telling us, all right, if you asserted

hearing loss and tinnitus, we have 55,344 plaintiffs who have

uploaded or given us some medical records; and tinnitus only,

28,000. So there's a big population here we don't have the

medical records on. So, again, we're getting down to a smaller

group of people we can do this on, say, 87,505 who have medical

records that we can look at.

And what did it tell us?

Basically we took all the records, did an OCR sort of

scouring of them to see if these words on the left here were

mentioned anywhere in the records. I think the idea is, all

right, well, was there any sort of contemporaneous

corroboration or report of tinnitus at the time back in the day

where people were making a subjective report on tinnitus,

ringing in the ears or buzzing or whatever.

This is what we found in the documents, the people who

have some mention of buzzing, ringing, tinnitus in a medical

record through a word search. And this one you can -- a

plaintiff can be in more than one of these rows because

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somebody mentioned tinnitus and ringing and buzzing.

THE COURT: Right.

MR. BROWN: This is not a head count. This is, all

right, well, how many records have a mention of any of these

conditions in it that are tinnitus or tinnitus adjacent or kind

of proxies for tinnitus.

THE COURT: And, am I correct, you could do this for

individual plaintiffs?

MR. BROWN: We could, any one plaintiff, any group of

plaintiffs. We ended up with these kind of net numbers of

people who we find in the record some mention of tinnitus or

ringing or buzzing for 31,457 who --

THE COURT: Records?

MR. BROWN: -- assert hearing loss and tinnitus.

THE COURT: Are these for -- but you're saying some of

these plaintiffs may appear in -- or was that the prior slide,

not this?

MR. BROWN: That's this slide. You can appear on more

than one number here.

THE COURT: Oh, here.

MR. BROWN: But here we tried to net it -- we did net

it out --

THE COURT: Oh, okay. I misunderstood.

MR. BROWN: -- to say, all right, let's get a head

count of 31,457 plaintiffs, active plaintiffs who allege

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hearing loss and tinnitus, who mention tinnitus or ringing or

buzzing somewhere along the way in a record.

So there's 15,500 who assert in their census form

tinnitus injury only who mentioned tinnitus somewhere along the

way in a medical record. There's no mention for 37,097 of

them, and again, the totals of the people we have records on.

But this was just an effort to see, all right, if

there are medical records, let's run through them and see if

there's some contemporaneous kind of report of tinnitus,

ringing, or buzzing. Does that indicate that, okay, it must

have been going on because they reported it for medical care?

That's what this is -- the approach is, all right, well, what

do you tell from the medical records that we have in the MDL

Centrality platform.

What do we know from the DOEHRS data about tinnitus?

Well, again, we have 178,040 people who have DOEHRS

data and, of them, 112,000 hearing loss plus 56,159 asserted

tinnitus only. And again, we have this group where we don't

know their injury.

The 112,257 we just went through. That's the hearing

loss people, we did the shift. So for the next few slides

we're focusing on this 56,159 who asserted tinnitus alone to

see what we can tell in the DOEHRS data about tinnitus, and

we'll finish up with the whole crowd, the whole audience.

But these right here, we took two approaches to the

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DOEHRS data on tinnitus, and we're looking for shifts of 10

decibels or more in any frequency in either ear.

And the Court asked us to do this, this 10 decibel or

more kind of shift. Whether it's temporary or permanent, we're

not here today to say whether temporary or permanent. But is

that some sort of marker or proxy for tinnitus? If you have a

shift and your hearing is declining by 10 decibels or more

between one test or another, is that an indication perhaps of

tinnitus?

I think there was some testimony --

THE COURT: Correct.

MR. BROWN: -- in trials that obviously we were not

present for that maybe uses this as a marker for tinnitus.

And again, we're not saying that's right or wrong.

We're just saying, if you did that, if you assume that a shift

of 10 decibels or more between one test to another is some sort

of indication that, yes, there may have been tinnitus in this

serviceperson, what does the DOEHRS data tell us about that.

And so, if we're looking at, again, our first

approach, first and last audiogram, looking for tinnitus, we

can do this on, again, 52,544 people who have more than one

audiogram. Now, this is the crowd of people that allege

tinnitus only. These are different people from all of our

hearing approach that we looked at in our first four

approaches, but now we're focusing on people who have asserted

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-- plaintiffs who have asserted tinnitus only, and we get

52,000 -- 94 percent of them almost that we have more than one

audiogram on that we can look for shifts on. A different

population from what we already looked at.

But what we found was 42,000-plus have a shift of 10

decibels or more in any frequency on either ear between the

first audiogram in the data and the last audiogram in the data.

So, if that's a proxy for tinnitus, there's 42,816 who

have that between first and last. Again, it's one frequency.

It could be 10, could be 40, could be bigger, but at least 10.

That's the distribution pattern for the first approach which is

first and last.

And then we did the same two brackets of audiograms

when you started using the earplugs and when you ended. Again,

we have to have answers in the census form about when you used

the earplugs to be able to do this on this tinnitus-only

population. We have that on about 54-plus percent of this

population so that we can do -- figure out an audiogram around

when they started using the earplugs and when they finished and

see if there are shifts in there.

And in that audience we have 23,755 who have a shift

of 10 decibels or more in any frequency, either ear, from the

audiogram that's nearer the time they started using the Combat

earplugs and the time that they finished.

And so, if that's a marker for tinnitus, then there's

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22,755 who have it.

THE COURT: According to some experts it is. And it

may be the subject of some debate, but there is a record of

that.

MR. BROWN: This is where we end up in terms of the

two approaches on tinnitus in terms of what percentage of the

population have a shift of at least 10 decibels or more than 10

decibels -- 10 decibels or more that may be a marker for

tinnitus.

So it's 81 and 78 percent, 81 percent first and last,

audiogram 78 percent, earplug use start and end date

audiograms.

And then we expanded this tinnitus thing just to see

-- make sure that we covered the whole waterfront. What we

looked at just now was just the group that alleged tinnitus

only. We went back in and pulled everybody who alleged

tinnitus, whether it's alone or with hearing loss. That's a

bigger population.

THE COURT: That's the biggest injury population.

MR. BROWN: It's the what?

THE COURT: It's the greatest injury population.

MR. BROWN: Yes, it is, of tinnitus and hearing loss

alleged.

We did the same approaches as we just looked at in the

two tinnitus approaches. On the first one, you know, where we

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have first audiogram in the data, last audiogram, we do that on

93.4 percent of the population. So, on 148,577 people we have

two audiograms to see what the shifts were if you alleged

tinnitus either alone or with hearing loss.

This expanded version gives us these numbers of people

between the first and last audiogram who had a shift of at

least 10 decibels, 128,000. That's the whole population. It

includes the tinnitus-only people we just looked at and the

people who alleged hearing loss and tinnitus.

And then on the second approach in this expanded

tinnitus, which is earplug use dates, audiograms, we can do

that on 55 percent of this population who gave us use dates,

and we end up with this distribution of people, 72,106, that

have a shift at least 10 decibels in any frequency between

those two audiograms, with the comparison being this in terms

of -- the whole tinnitus population under those two approaches,

you get percentages of the population that are fairly close

that have 10 decibels or more shifts between one test and the

other.

And again, that's trying to plow through the DOEHRS

data to see if there's anything in here that you can use to

assess or analyze the tinnitus assertions based upon the

testing results in the audiogram responses.

THE COURT: But, again, this tells you nothing about

the severity of the tinnitus at all.

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MR. BROWN: It does not. It's 10 or up. You could go

further in how much it is. We were looking at this comparison

-- the percentages we get out of here compared to the smaller

group. They don't vary a lot in terms of whether it's the

tinnitus only allegations -- that's the number that you see

that popped into the side or above -- or the entire population.

They're close.

This is the entire population. But if you look at the

group we started with, the 55,000 tinnitus-only people, you get

19 percent below 10, 22 percent above. It's a little different

but that's -- we just wanted to compare the two populations

that come out in kind of the same place pretty close to each

other.

THE COURT: Yeah. And again, this is making the

assumption that a shift of 10 dB or greater reflected on the

audiogram for a particular plaintiff may indicate some injury

to the auditory pathway that could support a tinnitus claim

based on some of the expert testimony.

MR. BROWN: That's how we understand that assumption,

and so that's what we tried to figure out, you know, what did

it tell us about them.

So, Your Honor, that's what we did and wanted to

present today in terms of sharing our approaches, four

approaches on the hearing loss measurements and then these

various ways to look at tinnitus, whether it's in the records,

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what people are asserting, is there a way to find anything

that's an indicator of it in the DOEHRS data. That's what we

were able to do.

It took a lot of plowing through the information and

trying to aggregate it and present it in some understandable

way, but we hope it's helpful.

And again, we're ready to do this on any pathway or

approach that the Court or any of the parties would like or

populations to see, all right, well, let's tweak it here, tweak

it there, measure it differently, use different audiograms.

All of that now is doable. In terms of what the parameters or

inputs are, we can tell you the outputs.

THE COURT: Yeah, you have it all set up.

MR. BROWN: It's all set up, Dennis is all set up.

THE COURT: An enormous amount of work.

MR. BROWN: All of the programming that goes behind

drawing upon the right cells to do this analysis, it took a lot

of building. It's set up now. But when you tweak it, we just

change the programming a little bit, we can spit out different

results. It's not immediate, depending upon -- but, you know,

Dennis can do almost anything, so yeah, we can do it almost any

way you'd like or any of the parties would like.

THE COURT: Could I ask for you to pull back up the

slide -- I don't remember the number -- that compares the four

approaches with the bar?

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MR. BROWN: Yes.

THE COURT: Oh, I think it was maybe not a bar. A lot

of colors.

MR. BROWN: Yeah, there are a lot of colors and we'll

get there.

That one?

THE COURT: No. Back, further back. There you go.

So this is --

MR. BROWN: That one, right?

THE COURT: No. It's not a bar. It's the other one,

this one. (page 45)

So this is the main reason I asked BrownGreer to --

why do we keep going off of the --

MR. CARTER: There's a delay on yours.

THE COURT: There's a what?

MR. CARTER: Go back to the colored one, Orran.

THE COURT: Yeah, I want to go back to the colored

one. Okay, that one.

One of the main reasons I asked BrownGreer to do what

I asked them to do, and that is because, looking at this early

on, I could tell the plaintiffs' approach to the data and the

defendants' approach to the data could not result in greater

difference. I mean, it's huge. And so I don't know a way to

marry that, and I told the parties that, I don't know, into

your settlement negotiations, I mean, how you bring those

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together because they are so very different in terms of the

approach to the data. And I don't know the answer to it.

I've made observations about both sides' approach. I

think causation is important. But again, I'm in the tort

system, and I'm looking at what a plaintiff has to do to prove

claims in a tort system. You all may come up with, I don't

know, a different formula, some way of looking at this to

resolve this litigation. I hope you do. But it's not going to

be with any blending of these two approaches.

And as far as I can tell, based on the last time I had

discussions with the parties -- and it's been a couple of

months -- 3M was very steeped in its approach and the

plaintiffs were obviously very, very wedded to their approach.

And so I'll leave it to the meditators to try to get

the two sides together, but I wanted everyone to see how

different it is in terms of the results in terms of injury to

plaintiffs on the hearing loss claims depending on the approach

you use. And I don't know if there's wiggle room or not.

And even with the AMA approach, it's injury or no

injury. So you look at Approach No. 3, 85 percent of that

population is not injured. So, if you apply this rating scale

to the population in some setting, 85 percent bye-bye, no

injury at all, you're not going to get into a bucket.

On the first two single frequency approaches you do

have to look at shifts, degree of shifts, is it 10 dB or

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greater, you have to look at the science and what the experts

say about that, and then where does that shift end up, is it at

least 15 db. If you're going with 20 dB, does it end up at 20

dB or does it end up with 25 dB if you're going with 25 dB.

And that definitely will make a difference in terms of how many

people are, quote/unquote, "injured." And then, of course, you

look at the decibel level to determine whether it's a moderate

injury or severe injury. But that's -- I guess that's for

another day.

I know the parties, you all are -- I guess you're

continuing to talk and work on this. But from my review of

this, if you are all still here where I left off with you, you

have a long ways to go in terms of coming together and agreeing

on how to assess injury in this population.

And tinnitus is even more difficult or it's more, I

guess, elusive. You don't have the data that you do for the

hearing loss claims. It's difficult for the plaintiffs because

of that, but tinnitus is difficult for the defense because

those claims are not going to be thrown out just because

there's no tinnitus mentioned in a medical record. That's just

not going to happen. There is no objective test for tinnitus.

You all know that, your experts know it. It's been testified

to over and over and over again in every trial. There was

never any general causation challenge to tinnitus and noise

exposure, nor do I think there could have been, but there

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wasn't. So you're stuck.

I mean, those people -- I don't know how valuable

their claims are, but they're most likely going to get to a

jury if they say they have tinnitus. We can't say, in terms of

as a matter of law, no, you don't. So that's a problem.

That's a lot of people.

Observations. Like I said, you can like them, hate

them, discard them, or maybe use them down the road in some way

to help get the litigation resolved, which is what everyone has

said they want to do. But I still think you're very far apart

in that regard. If this is where you still are, you're very,

very far apart.

But I appreciate you doing this, Orran and Dennis.

MR. BROWN: Thank you, Your Honor.

THE COURT: Thank you. I know that a great deal of

work has gone into this, and I think it's very helpful for

everyone to see it. Otherwise you're just lost in a morass of

data that you can't make any meaningful conclusions about.

And again, one conclusion that is very clear from all

of this is that the parties are very far apart if they're still

using these same approaches.

MR. BROWN: Thank you, Your Honor, for the opportunity

to do this. And we stand ready to assist the Court and the

parties. If there's a middle ground between any of these

approaches, then we can run it and we'll figure out who's in

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which bucket.

THE COURT: Well, at some point -- I mean, the

litigation either resolves or, I guess, it doesn't. Maybe it

resolves on appeal. If it doesn't, there's so many different

variations of what could happen here because there's so many

different challenges in the appellate courts right now.

But if the litigation does proceed, somebody is going

to make this determination. If it's in bankruptcy, if you stay

in bankruptcy, somebody is going to look at these approaches --

somebody is going to have to apply an approach -- an estimator,

a bankruptcy judge, somebody is going to have to apply an

approach.

If you come back to the MDL, you're either going to

decide on an approach and resolve the litigation in the context

of the MDL or juries are going to make the decision for you.

They won't be doing it on any of these approaches. They'll be

doing it the good old-fashioned tort way. But there's only a

certain number of outcomes here.

We're waiting to hear from appellate courts to decide

which direction the litigation is going to proceed. But from

there, you're either going to settle it or you're going to try

cases, or again, some neutral third party is going to have to

apply an approach to all of this data to come up with a way to

compensate the people who are injured. But again, that's the

big question is how many are injured.

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All right. Thank you all. I appreciate you coming.

And if you decide you want a Data Day cage fight or brawl, let

me know. We can certainly do that. Or if you want something

short of that, that can be arranged as well, and BrownGreer

will be there, you can ask questions, challenge their

methodology, if you like, at that point, again, dig deeper into

what they did and how they did it, but I think Orran was very

transparent in terms of what was done.

And you did exactly what I asked you to do, and I know

you did it based on the raw data.

Thank you all.

MR. BROWN: Thank you, Your Honor.

(Proceedings concluded at 9:35 a.m.)

--------------------

I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter. Any

redaction of personal data identifiers pursuant to the Judicial

Conference Policy on Privacy are noted within the transcript.

s/Donna L. Boland 2-28-2023

Donna L. Boland, RPR, FCRR Date

Official Court Reporter

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