EXHIBIT 1

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 1 of 169
Douglas Moses 30(b)(6) 10.17.2019 

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

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Douglas Moses 30(b)(6) 10.17.2019 2

Designation Objection Rulings

10:4 - 10:11 Douglas Moses 30(b)(6) 10.17.2019 

 10 4 Q. Good morning, Mr. Moses. My

 10 5 name is Dave Buchanan. I represent

 10 6 plaintiffs in a litigation brought against

 10 7 your employer, 3M, relating to a certain

 10 8 product that you've been involved with for

 10 9 many years, the Combat Arms.

 10 10 You're aware of that?

 10 11 A. I am.

10:18 - 10:22 Douglas Moses 30(b)(6) 10.17.2019 

 10 18 Q. Do you understand, sir, that

 10 19 you've been designated on behalf of your

 10 20 employer to provide testimony binding on the

 10 21 company?

 10 22 A. I do.

10:23 - 11:1 Douglas Moses 30(b)(6) 10.17.2019 

 10 23 Q. And you've been identified for

 10 24 particular topics in connection with that

 10 25 notice; that's your understanding?

 11 1 A. That's my understanding.

18:9 - 18:16 Douglas Moses 30(b)(6) 10.17.2019 

 18 9 Q. So, sir, with regard to these

 18 10 topics, marketing, distribution and sales, I

 18 11 understand who you are, at least, within the

 18 12 framework of the company and a little bit

 18 13 within the story as it relates to the Combat

 18 14 Arms.

 18 15 You're a marketing person?

 18 16 A. Yeah.

38:10 - 39:2 Douglas Moses 30(b)(6) 10.17.2019 

 38 10 Q. You have some familiarity with

 38 11 the product; is that right, sir?

 38 12 A. I do.

 38 13 Q. Okay. There is -- Combat Arms

 38 14 is a brand. There were civilian counterparts

 38 15 to the Combat Arms, fair?

 38 16 A. Fair.

 38 17 Q. Okay. They went by the name of

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Douglas Moses 30(b)(6) 10.17.2019 3

 38 18 Arc plugs? That's one version, right?

 38 19 A. Yes.

 38 20 Q. There was the AO Safety

 38 21 indoor/outdoor range earplug?

 38 22 A. I believe so.

 38 23 Q. Okay. Those are brands you

 38 24 know and are familiar with?

 38 25 A. I know AO Safety --

 39 1 Q. Uh-huh.

 39 2 A. -- and I know Combat Arms.

39:3 - 39:12 Douglas Moses 30(b)(6) 10.17.2019 

 39 3 Q. Okay. When did you start with

 39 4 the company?

 39 5 A. March 1, 2005.

 39 6 Q. And when you started with the

 39 7 company, the company was making the Combat

 39 8 Arms, the AO Safety indoor/outdoor range

 39 9 earplug and the Arc plugs, correct?

 39 10 A. I believe so, from what I've

 39 11 found here. I wasn't on this product line,

 39 12 so...

39:13 - 40:16 Douglas Moses 30(b)(6) 10.17.2019 

 39 13 Q. Okay. And the market segments

 39 14 for these plugs was anyone with a gun, right?

 39 15 A. Could be as -- yes.

 39 16 Q. Construction workers?

 39 17 A. Yes, could be.

 39 18 Q. Electrical workers?

 39 19 A. Yes.

 39 20 Q. I mean, there were consumer and

 39 21 commercial applications, fair?

 39 22 A. There were.

 39 23 Q. Industrial applications?

 39 24 A. Yes.

 39 25 Q. There were sporting

 40 1 applications?

 40 2 A. Yes.

 40 3 Q. When I say "sporting," I mean

 40 4 sportsmen, people who shoot or go on ranges?

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Douglas Moses 30(b)(6) 10.17.2019 4

 40 5 A. Hunting and shooting.

 40 6 Q. Hunting and shooting, right?

 40 7 A. Yes.

 40 8 Q. And there were military market

 40 9 segments, fair?

 40 10 A. Yes.

 40 11 Q. And the company over time

 40 12 pursued all those segments, correct?

 40 13 A. It appears that they, yeah, hit

 40 14 most of the ones you just mentioned, yes, to

 40 15 some degree of success or...

 40 16 Q. Right.

41:9 - 41:25 Douglas Moses 30(b)(6) 10.17.2019 

 41 9 Q. Passing you, sir, what we've

 41 10 marked as Exhibit 12 to your deposition.

 41 11 What is that, sir?

 41 12 A. That appears to be the

 41 13 version 2 of the Combat Arms Earplug.

 41 14 Q. Okay. Double-ended?

 41 15 A. It has two eartips, yes.

 41 16 Q. Okay. And when we see those

 41 17 tips, we see the darker end, or the olive

 41 18 end, that would be for continuous protection,

 41 19 from the company's marketing claims, correct?

 41 20 A. Correct.

 41 21 Q. And the yellow end would be,

 41 22 quote, the open end, and that was for impulse

 41 23 or weapons firing or on the range, right?

 41 24 A. Yes, that would be impulse

 41 25 protection.

42:1 - 42:4 Douglas Moses 30(b)(6) 10.17.2019 

 42 1 Q. Okay. Let's go to --

 42 2 A. But importantly, you can also

 42 3 hear through this when the gunfire isn't

 42 4 happening.

Re: [42:1-42:4]

Pltf Obj non responsive

SUSTAINED

51:5 - 51:24 Douglas Moses 30(b)(6) 10.17.2019 

 51 5 The earplugs, let's just focus

 51 6 on the earplugs themselves. If you talk

 51 7 about the Arc plugs, if you talk about the

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Douglas Moses 30(b)(6) 10.17.2019 5

 51 8 AO Safety indoor/outdoor range plugs, or we

 51 9 talk about the Combat Arms version 2, are the

 51 10 plugs themselves feature identical?

 51 11 A. I think that's fair.

 51 12 Q. There is a distinction,

 51 13 obviously, in the Arc plugs in that they are

 51 14 red on the tips rather than olive or black?

 51 15 A. Yes.

 51 16 Q. Correct?

 51 17 A. Yes.

 51 18 Q. But in terms of a continuous

 51 19 protection end, all three sets of plugs have

 51 20 a continuous protection end, correct?

 51 21 A. That's my understanding.

 51 22 Q. And feature identical from your

 51 23 perspective, correct?

 51 24 A. I think that's fair.

56:3 - 56:18 Douglas Moses 30(b)(6) 10.17.2019 

 56 3 The company had a product that

 56 4 it sold through its military channel, right?

 56 5 A. It did.

 56 6 Q. Combat Arms version. Focus on

 56 7 the version 2 design for the moment.

 56 8 That was principally marketed

 56 9 through the military channel; is that your

 56 10 testimony?

 56 11 A. It was, but there was some

 56 12 evidence early on that said that it was -- it

 56 13 didn't really -- we utilized some of the same

 56 14 salespeople as our industrial or some of our

 56 15 same staff members, so I'm not sure how it

 56 16 was marketed in the very, very beginning. I

 56 17 know that it evolved to be very focused on

 56 18 military.

109:10 - 109:13 Douglas Moses 30(b)(6) 10.17.2019 

 109 10 When did you start at the

 109 11 company?

 109 12 A. I started at the company

 109 13 March 1, 2005.

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109:17 - 109:21 Douglas Moses 30(b)(6) 10.17.2019 

 109 17 In mid-2005, do you recall the

 109 18 company refocusing and seeking to leverage

 109 19 the CAE to expand its military sales?

 109 20 A. I became involved with the

 109 21 Combat Arms in the fall of 2006.

110:20 - 111:1 Douglas Moses 30(b)(6) 10.17.2019 

 110 20 From this same time frame,

 110 21 August of 2005, it's true, isn't it, sir,

 110 22 that the company was seeking to leverage the

 110 23 Combat Arms to extend its presence and sales

 110 24 in the military, true?

 110 25 A. I think we were trying to sell

 111 1 more of it.

111:2 - 111:16 Douglas Moses 30(b)(6) 10.17.2019 

 111 2 Q. Well, not only sell more Combat

 111 3 Arms, but you were going to leverage the

 111 4 brand to try and extend your foot --

 111 5 A. The brand Combat Arms?

 111 6 Q. -- to extend your footprint

 111 7 into the military, true?

 111 8 MR. MORRISS: Object to the

 111 9 form.

 111 10 THE WITNESS: I don't -- if

 111 11 you're talking about the brand Combat

 111 12 Arms Earplugs, I don't know about

 111 13 that -- the strategy behind extending

 111 14 the brand -- the brand itself, Combat

 111 15 Arms, and to utilize it into the

 111 16 military.

Re: [111:2-111:16]

Def Obj Argumentative, Vague (403,

611); Foundation (602)

OVERRULED

111:17 - 111:24 Douglas Moses 30(b)(6) 10.17.2019 

 111 17 QUESTIONS BY MR. BUCHANAN:

 111 18 Q. Not by brand name, sir, but

 111 19 extend, if you will, the toehold you had with

 111 20 Combat Arms into a broader sales strategy for

 111 21 the military.

 111 22 You recall that right, sir?

 111 23 A. I recall that we were -- yes,

 111 24 in general.

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Douglas Moses 30(b)(6) 10.17.2019 7

112:2 - 112:7 Douglas Moses 30(b)(6) 10.17.2019 

 112 2 Q. Okay. Passing you Exhibit 19.

 112 3 And we've got these cover pages

 112 4 on here because they were produced to us in

 112 5 litigation in the native format, which means

 112 6 is Excel or Word document or PowerPoint. So

 112 7 you can ignore the first page, sir.

112:8 - 113:11 Douglas Moses 30(b)(6) 10.17.2019 

 112 8 For the record, what I've

 112 9 passed you is exhibit -- as Exhibit 19, our

 112 10 internal numbering for that is P469, for

 112 11 those following along later.

 112 12 Let's go on to 469.3 at the

 112 13 bottom. We see a description of the 2005

 112 14 Business Analysis - Passive Hearing. There's

 112 15 that heading at the top.

 112 16 Do you see that?

 112 17 A. I do.

 112 18 Q. Okay. Then it kind of breaks

 112 19 down the various components of the passive

 112 20 hearing market.

 112 21 Do you see that?

 112 22 A. Yes, I see a number of headings

 112 23 below that.

 112 24 Q. Yeah, disposable foam, push-in

 112 25 foam, reusable earplugs, all that stuff,

 113 1 right?

 113 2 A. I do.

 113 3 Q. Okay. Then you see Military

 113 4 Channel at the bottom?

 113 5 A. I do.

 113 6 Q. It says, "Military is primary

 113 7 driver of market growth. Substantial

 113 8 opportunity exists to further penetrate this

 113 9 channel with new products."

 113 10 Did I read that correctly?

 113 11 A. Yes, you read that correctly.

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Douglas Moses 30(b)(6) 10.17.2019 8

113:12 - 113:13 Douglas Moses 30(b)(6) 10.17.2019 

 113 12 Q. Okay. Taking you forward to

 113 13 469.5, it's two pages down --

113:21 - 114:4 Douglas Moses 30(b)(6) 10.17.2019 

 113 21 Q. Okay. Then towards the bottom

 113 22 there it says "Combat Arms."

 113 23 Do you see that?

 113 24 A. I do.

 113 25 Q. I think your finger is already

 114 1 on it. Good.

 114 2 Have you seen this document

 114 3 before?

 114 4 A. I've reviewed this document.

114:5 - 114:10 Douglas Moses 30(b)(6) 10.17.2019 

 114 5 Q. Okay. All right. Good. No

 114 6 surprises for you today, it seems.

 114 7 "Combat Arms sales exploded in

 114 8 2005, more than quadrupling 2004."

 114 9 Is that right?

 114 10 A. That's what it says right here.

Re: [114:5-114:10]

Def Obj Relevance (401, 402)

SUSTAINED as to “Good. No 

surprise for you today.”

OVERRULED in all other respects.

114:11 - 114:23 Douglas Moses 30(b)(6) 10.17.2019 

 114 11 Q. That's what happened, right?

 114 12 A. The sales data from that --

 114 13 from the previous exhibit suggests that as

 114 14 well.

 114 15 Q. All right. It says, "Fiscal

 114 16 year 2005 sales should be at or above

 114 17 4.5 million."

 114 18 Right?

 114 19 A. Yes.

 114 20 Q. Okay. And looking forward,

 114 21 2005 business analysis summary, next page,

 114 22 sir.

 114 23 Major Innovations?

115:3 - 115:5 Douglas Moses 30(b)(6) 10.17.2019 

 115 3 Q. 2005 Business Analysis Summary.

 115 4 Do you see that?

 115 5 A. I do.

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Douglas Moses 30(b)(6) 10.17.2019 9

115:6 - 115:7 Douglas Moses 30(b)(6) 10.17.2019 

 115 6 Q. Major Innovations. And you've

 115 7 got your finger right where I'm going.

Re: [115:6-115:7]

Def Obj Relevance (401, 402)

OVERRULED

115:14 - 116:20 Douglas Moses 30(b)(6) 10.17.2019 

 115 14 Q. Okay. "Extend presence in the

 115 15 military, leveraging the Combat Arms Earplug

 115 16 platform."

 115 17 Do you see that, sir?

 115 18 A. I do.

 115 19 Q. Does that sound like what we

 115 20 were talking about a few minutes ago, about

 115 21 leveraging the Combat Arms platform?

 115 22 A. Yes. In this context, yes.

 115 23 Q. Right.

 115 24 And in fact, that's what

 115 25 you-all did, right?

 116 1 That was the strategy in 2005,

 116 2 and that's what the company in fact did,

 116 3 right?

 116 4 A. This was our strategy, and we

 116 5 did then create the Arc plug and extend it.

 116 6 Q. Oh, no. I'm talking about in

 116 7 the military, sir.

 116 8 A. Oh, I'm sorry. Okay.

 116 9 Q. Right?

 116 10 A. Yes. We --

 116 11 Q. This is talking about extending

 116 12 your presence in the military, "leveraging

 116 13 the Combat Arms Earplug platform."

 116 14 Did I read that correctly?

 116 15 A. You did.

 116 16 Q. And it says "extend the

 116 17 presence" where, sir?

 116 18 Extend your presence in what?

 116 19 A. I'm sorry, in the military,

 116 20 yes.

116:21 - 116:24 Douglas Moses 30(b)(6) 10.17.2019 

 116 21 Q. Thank you.

 116 22 A. Yes.

Re: [116:21-116:24]

Def Obj Relevance (401, 402)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 10 of 169
Douglas Moses 30(b)(6) 10.17.2019 10

 116 23 Q. Okay.

 116 24 A. I understand.

116:25 - 117:7 Douglas Moses 30(b)(6) 10.17.2019 

 116 25 Q. And that's what you said in

 117 1 2005, and that's what you started to do,

 117 2 right?

 117 3 A. Yes.

 117 4 Q. And if we go forward to 2006,

 117 5 you actually organized a strategic business

 117 6 unit.

 117 7 Do I have that right?

117:13 - 117:23 Douglas Moses 30(b)(6) 10.17.2019 

 117 13 THE WITNESS: I don't recall

 117 14 the term "strategic business unit,"

 117 15 but there was a group that was used

 117 16 and dedicated to focus towards

 117 17 military sales opportunities.

 117 18 QUESTIONS BY MR. BUCHANAN:

 117 19 Q. Right.

 117 20 And formed. Formed, right?

 117 21 A. Yes.

 117 22 Q. Within Aearo?

 117 23 A. Yes.

119:18 - 120:11 Douglas Moses 30(b)(6) 10.17.2019 

 119 18 Q. Sir, when did 3M buy Aearo?

 119 19 MR. MORRISS: You can answer,

 119 20 if you know.

 119 21 THE WITNESS: I believe the

 119 22 close date was April 1, 2008.

 119 23 QUESTIONS BY MR. BUCHANAN:

 119 24 Q. And the deal was, I think,

 119 25 announced in 2007; is that right?

 120 1 MR. MORRISS: Same objection.

 120 2 Outside the scope.

 120 3 QUESTIONS BY MR. BUCHANAN:

 120 4 Q. Did you know that?

 120 5 MR. MORRISS: But you can

 120 6 answer, if you know it.

 120 7 THE WITNESS: I recall it was

Re: [119:18-120:11]

Def Obj Scope; 3M MIL No. 7

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 11 of 169
Douglas Moses 30(b)(6) 10.17.2019 11

 120 8 in that fall time frame.

 120 9 QUESTIONS BY MR. BUCHANAN:

 120 10 Q. Fall of 2007?

 120 11 A. Yes.

121:7 - 121:18 Douglas Moses 30(b)(6) 10.17.2019 

 121 7 Q. I'm asking as a factual matter.

 121 8 In 2006, the company forms a

 121 9 North American military strategic business

 121 10 unit, correct?

 121 11 MR. MORRISS: Asked and

 121 12 answered.

 121 13 Go ahead.

 121 14 THE WITNESS: I recall that

 121 15 sometime in the October/November time

 121 16 frame, that that was a time when we

 121 17 pulled people from other areas onto a

 121 18 team.

Re: [121:7-121:18]

Def Obj Asked (611, 403)

OVERRULED

121:19 - 122:1 Douglas Moses 30(b)(6) 10.17.2019 

 121 19 QUESTIONS BY MR. BUCHANAN:

 121 20 Q. Right.

 121 21 Because, I mean, as we looked

 121 22 in, what, August of 2005, I mean, this was

 121 23 going to be, frankly, a way to grow the

 121 24 business, right? Leveraging Combat Arms?

 121 25 A. It was one of the ways, yes.

 122 1 Q. Yeah.

122:22 - 122:24 Douglas Moses 30(b)(6) 10.17.2019 

 122 22 Q. So if you could look at

 122 23 Exhibit 20.

 122 24 A. Okay.

124:7 - 124:8 Douglas Moses 30(b)(6) 10.17.2019 

 124 7 Q. Okay. I'm going to go to the

 124 8 next page then.

124:9 - 126:6 Douglas Moses 30(b)(6) 10.17.2019 

 124 9 All right. "North American

 124 10 Military Strategic Business Unit Formed;

 124 11 North American Peltor Communications

 124 12 Restructured."

 124 13 Do you see that, sir?

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Douglas Moses 30(b)(6) 10.17.2019 12

 124 14 A. I do.

 124 15 Q. Okay. And so it talks about

 124 16 the creation of a new strategic business

 124 17 unit.

 124 18 Do you see that on the first

 124 19 line?

 124 20 A. I do.

 124 21 Q. Created in the North American

 124 22 industrial business, right?

 124 23 A. Yes.

 124 24 Q. "To provide focused resources

 124 25 and effort against the rapidly growing

 125 1 military," and then it also says "and law

 125 2 enforcement channels."

 125 3 Right?

 125 4 A. It does.

 125 5 Q. Okay. So this military

 125 6 strategic business unit, that was designed to

 125 7 service both the military and the law

 125 8 enforcement channels.

 125 9 Do I have that right?

 125 10 A. It appears so, yeah.

 125 11 Q. Okay. It says, "The new

 125 12 military SBU" --

 125 13 That's just an acronym for

 125 14 strategic business unit; is that right?

 125 15 A. Yes.

 125 16 Q. Okay.

 125 17 -- "will manage all Aearo

 125 18 products sold into the military and law

 125 19 enforcement segments, including the Peltor

 125 20 ComTac headsets, E-A-R Combat Arms Earplugs

 125 21 and Peltor eyewear."

 125 22 Did I read that correctly?

 125 23 A. Yes.

 125 24 Q. Okay. So under the military

 125 25 SBU, with a target towards the military and

 126 1 law enforcement, was going to be a focus on

 126 2 these various product lines, right?

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 126 3 A. It includes those, yes.

 126 4 Q. Okay. Encompassed within would

 126 5 be E-A-R Combat Arms Earplugs, right?

 126 6 A. Yes.

137:16 - 137:22 Douglas Moses 30(b)(6) 10.17.2019 

 137 16 Q. Okay. All right. And within

 137 17 that structure for the military strategic

 137 18 business unit were you, right?

 137 19 A. Yes.

 137 20 Q. And you're tagged with the

 137 21 marketing function, right?

 137 22 A. Yes.

139:6 - 139:20 Douglas Moses 30(b)(6) 10.17.2019 

 139 6 Q. Okay. And as the company

 139 7 structured the unit, as the president of

 139 8 North American safety products structured the

 139 9 unit, you were to lead marketing, correct?

 139 10 A. Yes, again, with that comment

 139 11 that I made a moment ago.

 139 12 Q. And Tom Lavalle was to lead new

 139 13 business development, correct?

 139 14 A. Yes.

 139 15 Q. Okay. And we see that if we

 139 16 scroll forward in time a little bit, that in

 139 17 fact you continued to work to leverage the

 139 18 Combat Arms, to extend your presence in the

 139 19 military, right?

 139 20 A. Yes.

144:11 - 144:19 Douglas Moses 30(b)(6) 10.17.2019 

 144 11 Q. Okay. And you were working in

 144 12 this military strategic business unit even

 144 13 after the 3M acquisition?

 144 14 A. Yes, for a period of time.

 144 15 Q. Right.

 144 16 So Mr. Cimino continued to be

 144 17 in charge of the strategic business unit to

 144 18 extend and leverage the CAE platform?

 144 19 A. I believe so.

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144:22 - 144:25 Douglas Moses 30(b)(6) 10.17.2019 

 144 22 QUESTIONS BY MR. BUCHANAN:

 144 23 Q. Okay. Let's look at

 144 24 Exhibit 22, sir.

 144 25 A. Thank you.

145:7 - 145:24 Douglas Moses 30(b)(6) 10.17.2019 

 145 7 Q. Exhibit 22, for the record, is

 145 8 a document entitled "Aearo Strategic Planning

 145 9 Session - Military." Mike Cimino is listed

 145 10 there.

 145 11 It's got that 3M logo, right?

 145 12 So we're now under the 3M umbrella?

 145 13 A. It appears so, yes.

 145 14 Q. For the record, the MDL Bates

 145 15 number is 3M_MDL00048948.

 145 16 And it looks like it's a

 145 17 business matter you-all considered, the

 145 18 military, to be quite an opportunity; would

 145 19 that be fair?

 145 20 A. Certainly the military SBU did.

 145 21 Q. Yeah. And obviously good for

 145 22 the military SBU, good for 3M, right?

 145 23 A. Sure, our success would be good

 145 24 for 3M.

145:25 - 146:6 Douglas Moses 30(b)(6) 10.17.2019 

 145 25 Q. And that's what you were trying

 146 1 to do, right? You were trying to do well for

 146 2 3M, right?

 146 3 MR. MORRISS: Object to the

 146 4 form.

 146 5 THE WITNESS: I was trying to

 146 6 do the best I could, yes.

Re: [145:25-146:6]

Def Obj Compound (611, 403)

OVERRULED

146:23 - 147:12 Douglas Moses 30(b)(6) 10.17.2019 

 146 23 Q. Okay. I mean, military SBU had

 146 24 a plan or a budget, right?

 146 25 A. I believe it had a budget. It

 147 1 could have been some of that rolled up from

 147 2 other groups, but -- so I'm not sure.

 147 3 Q. And just as a business person,

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Douglas Moses 30(b)(6) 10.17.2019 15

 147 4 sir, and I guess as a marketing person,

 147 5 you're not really in the science and

 147 6 technical side; you were on the business

 147 7 side, right?

 147 8 A. Yeah, I was the marketer.

 147 9 Q. Okay. And so what you're

 147 10 trying to do is you're trying to sell more

 147 11 and grow the business, right?

 147 12 A. Yes.

147:13 - 147:20 Douglas Moses 30(b)(6) 10.17.2019 

 147 13 Q. And that's -- 10,000 foot,

 147 14 that's the marketing strategy, right? Sell

 147 15 more, make more, right?

 147 16 MR. MORRISS: Object to the

 147 17 form.

 147 18 THE WITNESS: And keep our --

 147 19 and make good products for our

 147 20 customers.

Re: [147:13-147:20]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

147:21 - 147:24 Douglas Moses 30(b)(6) 10.17.2019 

 147 21 QUESTIONS BY MR. BUCHANAN:

 147 22 Q. Well, certainly. We'd hope

 147 23 that would always be true, right?

 147 24 A. Yes.

150:12 - 151:15 Douglas Moses 30(b)(6) 10.17.2019 

 150 12 So this is a strategic planning

 150 13 session, right?

 150 14 A. Yes.

 150 15 Q. Okay. PowerPoint, kind of

 150 16 wrapping up the collection of thoughts from

 150 17 it, right?

 150 18 A. I don't know if this was

 150 19 produced before or after.

 150 20 Q. I see.

 150 21 Okay. So we see the agenda at

 150 22 the top, page 2, military strategic planning

 150 23 agenda, vision, mission, big dream, right?

 150 24 A. Yes.

 150 25 Q. Okay. And we looked,

 151 1 obviously, about the organization of the

Re: [150:12-151:15]

Def Obj Relevance (401, 402);

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 16 of 169
Douglas Moses 30(b)(6) 10.17.2019 16

 151 2 strategic business unit in 2006. Now you're

 151 3 going to seek to extend and leverage the

 151 4 Combat Arms.

 151 5 Do you recall that?

 151 6 A. I recall that from that sheet

 151 7 you showed me.

 151 8 Q. Into the military, right?

 151 9 A. Yes.

 151 10 Q. Leverage Combat Arms as a

 151 11 platform to expand military sales, fair?

 151 12 A. That's fair.

 151 13 Q. Okay. And the dream was

 151 14 $150 million of consolidated 3M military

 151 15 business, correct?

151:19 - 152:10 Douglas Moses 30(b)(6) 10.17.2019 

 151 19 Q. Well, do you remember that,

 151 20 sir?

 151 21 A. I don't recall that, no.

 151 22 Q. Okay. Let's go to .7.

 151 23 A. Thank you.

 151 24 Q. We see the mission, the vision

 151 25 and the dream, right?

 152 1 A. I do.

 152 2 Q. Okay. It says, "Stretch

 152 3 revenue goal, 2012, 2014, how we will have

 152 4 broadened our offering and reach."

 152 5 Do you see that?

 152 6 A. I do.

 152 7 Q. "$150 million consolidated 3M

 152 8 military business."

 152 9 Do you see that?

 152 10 A. I do.

Re: [151:19-152:10]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

155:6 - 155:11 Douglas Moses 30(b)(6) 10.17.2019 

 155 6 Q. Okay. All right. So moving

 155 7 forward here to .12, we see again a similar

 155 8 one of these slides, Mission, Vision and

 155 9 Dream.

 155 10 Do you see that? The dream?

 155 11 A. Right here.

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 155 19 Q. "$150 million consolidated 3M

 155 20 military business, increasing market

 155 21 penetration through broader program, captures

 155 22 expanding breadth of product and A&A."

 155 23 Did I read that correctly?

 155 24 A. Yes.

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155:25 - 156:14 Douglas Moses 30(b)(6) 10.17.2019 

 155 25 Q. And what you highlight,

 156 1 obviously, on -- further in here is at .14,

 156 2 you see the DOD is spending more money,

 156 3 right?

 156 4 MR. MORRISS: Object to the

 156 5 form. Page?

 156 6 MR. BUCHANAN: .14.

 156 7 MR. MORRISS: And what's the

 156 8 question?

 156 9 QUESTIONS BY MR. BUCHANAN:

 156 10 Q. Do you need me to repeat the

 156 11 question?

 156 12 A. I believe you asked whether it

 156 13 shows that the military is spending more

 156 14 money.

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156:15 - 156:18 Douglas Moses 30(b)(6) 10.17.2019 

 156 15 Q. Yeah.

 156 16 A. This is a -- it says, "USA

 156 17 spending government site," so, yes, DOD

 156 18 spending. Yes.

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156:19 - 157:7 Douglas Moses 30(b)(6) 10.17.2019 

 156 19 Q. Right.

 156 20 "Significant spending by DOD as

 156 21 war efforts continue."

 156 22 Do you see that?

 156 23 A. Yes.

 156 24 Q. And you-all saw that as market

 156 25 opportunity?

 157 1 A. I think so.

 157 2 Q. And also highlight that it was

 157 3 continuing to cost more money to outfit

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 157 4 soldiers. Next page, .15?

 157 5 A. Yeah. This compares World

 157 6 War II, Vietnam, current operations and then

 157 7 a future system.

157:8 - 157:19 Douglas Moses 30(b)(6) 10.17.2019 

 157 8 Q. Yeah, right. I mean, I guess

 157 9 looking forward you're looking at -- I mean,

 157 10 I guess at the time of this in 2007, at least

 157 11 that's the cite at the bottom, current

 157 12 operations and equipment costs, you know,

 157 13 $17,000 per soldier, and you're looking at

 157 14 future system costs of 28,000 to $60,000,

 157 15 right?

 157 16 MR. MORRISS: Object to the

 157 17 form. I don't know who "you" is.

 157 18 THE WITNESS: That's what's on

 157 19 this slide, yes.

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157:20 - 158:2 Douglas Moses 30(b)(6) 10.17.2019 

 157 20 QUESTIONS BY MR. BUCHANAN:

 157 21 Q. And you-all, within the

 157 22 strategic business meeting, saw this as

 157 23 opportunity, right?

 157 24 A. I think there's -- we saw an

 157 25 opportunity to continue to grow our business.

 158 1 I can't speak to the accuracy of some of

 158 2 these numbers, though.

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158:3 - 158:14 Douglas Moses 30(b)(6) 10.17.2019 

 158 3 Q. Okay. And that dream grew,

 158 4 right?

 158 5 MR. MORRISS: Object to the

 158 6 form.

 158 7 QUESTIONS BY MR. BUCHANAN:

 158 8 Q. From $150 million to even

 158 9 bigger numbers, right?

 158 10 MR. MORRISS: Object to the

 158 11 form.

 158 12 THE WITNESS: I don't know, but

 158 13 it's possible that we had other

 158 14 documents that showed growth numbers.

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 158 20 Q. Passing you Exhibit 23, sir.

161:14 - 162:2 Douglas Moses 30(b)(6) 10.17.2019 

 161 14 All right, sir. So kind of

 161 15 moving forward in time here, we looked at

 161 16 those early business plans from 2005, 2006,

 161 17 the creation of the strategic business unit,

 161 18 expand and leverage the CAE.

 161 19 We see at this point kind of

 161 20 the company's focus and expansion into the

 161 21 military broadening, fair?

 161 22 MR. MORRISS: Object to the

 161 23 form. The preliminary.

 161 24 Go ahead.

 161 25 THE WITNESS: The division was

 162 1 continuing to put together plans and

 162 2 grow. I don't know about the company.

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162:3 - 162:16 Douglas Moses 30(b)(6) 10.17.2019 

 162 3 QUESTIONS BY MR. BUCHANAN:

 162 4 Q. Okay. The division being the

 162 5 OH&ESD division, right?

 162 6 A. Yes.

 162 7 Q. Okay. And that's what this

 162 8 PowerPoint's from, from Mr. Cimino, is the

 162 9 business manager for it, right?

 162 10 A. It appears so, yes.

 162 11 Q. Okay. Let's kind of scroll

 162 12 forward. If we go to .2, we see the "OH&ESD

 162 13 roadmap to growth, expand targeted markets,

 162 14 leveraging our entire portfolio."

 162 15 Did I read that correctly?

 162 16 A. You did.

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162:23 - 163:11 Douglas Moses 30(b)(6) 10.17.2019 

 162 23 Q. Actually, let's go back one

 162 24 slide.

 162 25 It says, "US Business

 163 1 Overview - Presentation Outline." It's

 163 2 talking about your US military market center

 163 3 team, current state assessment, market

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 163 4 opportunity, competitive overview and

 163 5 imperatives.

 163 6 Do you see that?

 163 7 A. Strategic imperatives, 2010,

 163 8 yes.

 163 9 Q. And then charting the course,

 163 10 vision, and then it says what?

 163 11 A. Vision and big dream.

163:12 - 163:24 Douglas Moses 30(b)(6) 10.17.2019 

 163 12 Q. Big dream. Okay.

 163 13 Let's go to the next page.

 163 14 Kind of looking at the landscape here as your

 163 15 unit was sizing it up. Or I should say as

 163 16 the OH&ESD unit was sizing it up.

 163 17 Mega trends and market dynamics

 163 18 lead to what, sir?

 163 19 MR. MORRISS: Object to the

 163 20 form. Object to the preliminary

 163 21 comments.

 163 22 But go ahead.

 163 23 THE WITNESS: Growth

 163 24 opportunities.

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 164 2 Q. Okay. And growth

 164 3 opportunities, planet Earth at war, right?

 164 4 A. Yes.

 164 5 Q. Rising cost of the soldier

 164 6 equipment and after-service injury benefits,

 164 7 right?

 164 8 Do you see that?

 164 9 A. Over here, yes.

 164 10 Q. Leading to driving sales of

 164 11 existing portfolios, right?

 164 12 A. Yes, I'm reading that.

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164:13 - 164:19 Douglas Moses 30(b)(6) 10.17.2019 

 164 13 Q. And what's the first one

 164 14 listed, sir?

 164 15 A. Passive hearing.

 164 16 Q. Passive hearing.

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 164 17 Is that something that the

 164 18 Combat Arms would be in the portfolio of?

 164 19 A. Yes.

164:20 - 165:2 Douglas Moses 30(b)(6) 10.17.2019 

 164 20 Q. Passive hearing meaning that it

 164 21 doesn't have batteries?

 164 22 A. Yes, generically.

 164 23 Q. Okay. I think you told us

 164 24 earlier the lines were drawn, essentially,

 164 25 active hearing was something with batteries

 165 1 and passive was without?

 165 2 A. Yes.

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165:3 - 165:7 Douglas Moses 30(b)(6) 10.17.2019 

 165 3 Q. Okay. All right. So when you

 165 4 think passive hearing, that certainly

 165 5 encompasses the Combat Arms, right?

 165 6 A. It would have fallen in this

 165 7 bucket.

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166:23 - 167:4 Douglas Moses 30(b)(6) 10.17.2019 

 166 23 Q. Okay. And then one of the ways

 166 24 you're going to pursue new programs is, what,

 166 25 to seed products and technologies into

 167 1 requirements?

 167 2 Do I have that right?

 167 3 A. That's -- yes, that's what it

 167 4 says.

167:24 - 168:5 Douglas Moses 30(b)(6) 10.17.2019 

 167 24 And so among the imperatives

 167 25 for success is to seed products and

 168 1 technologies into requirements, government

 168 2 requirements, right?

 168 3 MR. MORRISS: Object to the

 168 4 form.

 168 5 THE WITNESS: Yes.

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168:6 - 168:6 Douglas Moses 30(b)(6) 10.17.2019 

 168 6 QUESTIONS BY MR. BUCHANAN:

168:7 - 168:12 Douglas Moses 30(b)(6) 10.17.2019 

 168 7 Q. Okay. Let's go to .24. And

 168 8 this is the -- charting the course, I guess,

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 168 9 is the slide we saw earlier, more of an

 168 10 agenda.

 168 11 But now we're at the vision of

 168 12 the big dream.

168:19 - 168:22 Douglas Moses 30(b)(6) 10.17.2019 

 168 19 Q. It says, "Charting the course.

 168 20 We've got the vision and the big dream."

 168 21 Do you see that?

 168 22 A. I do.

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 169 11 Q. Do you recall that?

 169 12 Go to the next page, please,

 169 13 sir. It lists our vision.

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169:19 - 169:24 Douglas Moses 30(b)(6) 10.17.2019 

 169 19 Q. It says, "Our Vision," right?

 169 20 A. It does.

 169 21 Q. It reads, "Chosen provider of

 169 22 personal protective gear to combat forces and

 169 23 support personnel," right?

 169 24 A. It says that.

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 169 25 Q. Okay. And that's your

 170 1 $500 million dream, right?

 170 2 MR. MORRISS: Object to the

 170 3 form.

 170 4 THE WITNESS: I haven't looked

 170 5 at this. Is that what the number is

 170 6 in here?

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170:7 - 170:7 Douglas Moses 30(b)(6) 10.17.2019 

 170 7 QUESTIONS BY MR. BUCHANAN:

170:8 - 170:12 Douglas Moses 30(b)(6) 10.17.2019 

 170 8 Q. What's the next page say, sir?

 170 9 A. Right at the top, yes, I see

 170 10 it.

 170 11 Q. And what do you see?

 170 12 A. I see $500 million dream.

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170:18 - 171:9 Douglas Moses 30(b)(6) 10.17.2019 

 170 18 Q. So in 2005, as part of your

 170 19 business plan, sir, by leveraging the Combat

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 170 20 Arms platform toehold into the military to

 170 21 try and extend it, right? Remember we looked

 170 22 at that?

 170 23 A. As one of the product lines,

 170 24 yes.

 170 25 Q. As we looked at.

 171 1 And then you form a strategic

 171 2 business unit in 2006, do I have right,

 171 3 targeting military?

 171 4 A. Yes.

 171 5 Q. Okay. Again, we saw in the

 171 6 later business plan from that year about

 171 7 further extending the Combat Arms to extend

 171 8 the military platform, right?

 171 9 A. Yes.

171:10 - 171:16 Douglas Moses 30(b)(6) 10.17.2019 

 171 10 Q. We saw your dream, I guess, a

 171 11 few years earlier was a $150 million dream

 171 12 for military business, right?

 171 13 MR. MORRISS: Object to the

 171 14 form.

 171 15 THE WITNESS: Yes, we reviewed

 171 16 that.

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172:17 - 172:23 Douglas Moses 30(b)(6) 10.17.2019 

 172 17 Q. Okay. So your dream evolved

 172 18 from a $150 million dream to a $500 million

 172 19 dream, right?

 172 20 MR. MORRISS: Object to the

 172 21 form.

 172 22 THE WITNESS: Yes, based on

 172 23 these documents, that's what it says.

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172:24 - 172:24 Douglas Moses 30(b)(6) 10.17.2019 

 172 24 QUESTIONS BY MR. BUCHANAN:

172:25 - 173:3 Douglas Moses 30(b)(6) 10.17.2019 

 172 25 Q. Yes. From the same strategic

 173 1 business unit targeting military sales,

 173 2 right?

 173 3 A. Yes. The -- yes.

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181:19 - 182:2 Douglas Moses 30(b)(6) 10.17.2019 

 181 19 Q. I wanted to pick up with some

 181 20 of the marketing statements and techniques.

 181 21 I think you talked about collateral in one of

 181 22 the documents we looked at shortly before the

 181 23 break.

 181 24 One of the items I think you

 181 25 included within collateral was like sell

 182 1 sheets; is that fair?

 182 2 A. Yes.

182:19 - 182:19 Douglas Moses 30(b)(6) 10.17.2019 

 182 19 Q. Passing over, sir, Exhibit 24,

185:24 - 186:1 Douglas Moses 30(b)(6) 10.17.2019 

 185 24 So, all right, sir. This would

 185 25 be an example of marketing collateral, fair?

 186 1 A. Yes.

190:14 - 190:14 Douglas Moses 30(b)(6) 10.17.2019 

 190 14 Q. What's an NRR?

190:17 - 191:12 Douglas Moses 30(b)(6) 10.17.2019 

 190 17 THE WITNESS: It's the noise

 190 18 reduction rating.

 190 19 QUESTIONS BY MR. BUCHANAN:

 190 20 Q. Okay. You're familiar with

 190 21 what that is?

 190 22 A. Generally.

 190 23 Q. What is it?

 190 24 A. It is a numerical value of --

 190 25 or the attempt to provide a numerical value

 191 1 of what that plug could offer as a noise

 191 2 reduction rating, or an NRR.

 191 3 Q. Okay. And you provide

 191 4 marketing claims about your noise reduction

 191 5 ratings, right?

 191 6 A. In some cases, yes.

 191 7 Q. In this case, right?

 191 8 A. The fact that it's on here is a

 191 9 claim.

 191 10 Q. And you're familiar with the

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Douglas Moses 30(b)(6) 10.17.2019 25

 191 11 concept of marketing claims, right?

 191 12 A. Generally, yes.

195:3 - 195:6 Douglas Moses 30(b)(6) 10.17.2019 

 195 3 A. In the case of the NRR, that

 195 4 would be a safety claim.

 195 5 Q. Some are disclaimers?

 195 6 A. Could be, yes.

197:7 - 197:15 Douglas Moses 30(b)(6) 10.17.2019 

 197 7 Q. All right. So let's take a

 197 8 look at this one.

 197 9 We see on the first page here,

 197 10 you see -- and that's why I think it's a

 197 11 little easier in the color version. We see

 197 12 the Combat Arms in the soldier's ear.

 197 13 MR. BUCHANAN: Can you scroll

 197 14 up, please?

 197 15 QUESTIONS BY MR. BUCHANAN:

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197:16 - 198:1 Douglas Moses 30(b)(6) 10.17.2019 

 197 16 Q. And if the green end is

 197 17 sticking out, the yellow end's in the

 197 18 soldier's ear; is that right?

 197 19 A. Presumably, yes.

 197 20 Q. Okay. And if the yellow end's

 197 21 in the ear, as you-all were intending these

 197 22 to be used, that was kind of in a weapons

 197 23 firing mode; is that right?

 197 24 A. It was referred to in different

 197 25 ways, sometimes weapons fired mode, but more

 198 1 generally open mode.

198:12 - 198:17 Douglas Moses 30(b)(6) 10.17.2019 

 198 12 "When needed, the plug's filter

 198 13 reacts to provide instant protection from

 198 14 high-level noises like weapons fire and

 198 15 explosions."

 198 16 Do you see that?

 198 17 A. I do.

198:18 - 198:23 Douglas Moses 30(b)(6) 10.17.2019 

 198 18 Q. Okay. So this filter responds

 198 19 to weapons fire or explosions and blocks the

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 198 20 impulse. That's kind of the message, right?

 198 21 MR. MORRISS: Object to form.

 198 22 THE WITNESS: That's the

 198 23 message on the sheet.

199:1 - 199:11 Douglas Moses 30(b)(6) 10.17.2019 

 199 1 And from a marketing

 199 2 perspective, you-all develop kind of

 199 3 messaging and takeaways, and then you write

 199 4 English that tries to communicate that,

 199 5 right?

 199 6 MR. MORRISS: Object to form.

 199 7 THE WITNESS: Well, sometimes

 199 8 the marketer might take a draft of

 199 9 some points. Sometimes an agency

 199 10 would be hired to -- with -- to come

 199 11 up with some content.

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274:8 - 274:9 Douglas Moses 30(b)(6) 10.17.2019 

 274 8 Q. Passing you, sir, Exhibits 30

 274 9 and 31. Just trying to move things along a

274:20 - 274:24 Douglas Moses 30(b)(6) 10.17.2019 

 274 20 Q. So am I correct, sir, that at a

 274 21 point in time the company placed ads for its

 274 22 hearing protection in the Army/Navy football

 274 23 program?

 274 24 A. Yes.

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275:10 - 277:12 Douglas Moses 30(b)(6) 10.17.2019 

 275 10 Q. Okay. Let's look at this one.

 275 11 This would have been, I guess, actually what

 275 12 year? We're in 2012 now?

 275 13 Is that right, sir?

 275 14 A. I'm sorry, I just want to make

 275 15 sure.

 275 16 Yes, 2012, uh-huh.

 275 17 Q. Yeah. And I just discerned

 275 18 that from the e-mail on the cover. This is

 275 19 August 28, 2012. Looks like it's a proof of

 275 20 the ad for the Army/Navy football game to be

 275 21 at West Point that year.

 275 22 Is that right?

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 275 23 A. Yes.

 275 24 Q. Okay. And then on the back

 275 25 page is the ad itself.

 276 1 It shows the Combat Arms; is

 276 2 that right?

 276 3 A. It shows some hearing

 276 4 protection products, one of which is the

 276 5 Combat Arms Earplug.

 276 6 Q. Right.

 276 7 We see the E-A-R Combat Arms

 276 8 Earplugs.

 276 9 This is 2012, right?

 276 10 A. Yes.

 276 11 Q. And you're still promoting,

 276 12 obviously, the version 2s?

 276 13 A. Promoting it. Evidently, yes,

 276 14 it's in this advertisement.

 276 15 Q. That's what's happening here,

 276 16 right?

 276 17 A. Yes.

 276 18 Q. Okay. "Hear the action now,

 276 19 hear life later."

 276 20 Is that the message?

 276 21 A. Yes.

 276 22 Q. "Losing your hearing is not a

 276 23 requirement for serving your country."

 276 24 Is that what it says?

 276 25 A. It does.

 277 1 Q. Okay. "With proper fitting,

 277 2 training and the right hearing protector, you

 277 3 can maintain your survivability, lethality

 277 4 and mission effectiveness and enjoy the quiet

 277 5 sounds of life."

 277 6 Did I read that correctly?

 277 7 A. Yes.

 277 8 Q. Okay. And that was a true

 277 9 statement from the company's perspective,

 277 10 right?

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 277 11 A. Yes. This would have been

 277 12 vetted. This would have been reviewed.

277:25 - 278:7 Douglas Moses 30(b)(6) 10.17.2019 

 277 25 "Losing your hearing is not a

 278 1 requirement for serving your country," right?

 278 2 A. Yes.

 278 3 Q. That's what you wrote?

 278 4 A. That's what it says.

 278 5 Q. From the company's perspective,

 278 6 that's a true statement, right?

 278 7 A. Yes.

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278:8 - 278:19 Douglas Moses 30(b)(6) 10.17.2019 

 278 8 Q. The company's belief and

 278 9 expressed view is that one can serve their

 278 10 country, and if they're provided -- if they

 278 11 use their hearing protection, leave with all

 278 12 their hearing, right?

 278 13 MR. MORRISS: Object to the

 278 14 form. Misstates the document.

 278 15 Go ahead.

 278 16 THE WITNESS: Well, with proper

 278 17 fitting, training and the right

 278 18 hearing protector, yes, you can

 278 19 maintain your survive -- yes.

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278:22 - 279:2 Douglas Moses 30(b)(6) 10.17.2019 

 278 22 And so it's not an

 278 23 inevitability when a person serves in the

 278 24 military, in the Army, Marines, Navy or the

 278 25 Air Force, by virtue of their exposure to

 279 1 weapons or aircraft or vehicles they're going

 279 2 to lose their hearing, right?

279:4 - 279:4 Douglas Moses 30(b)(6) 10.17.2019 

 279 4 THE WITNESS: It shouldn't be.

279:6 - 279:17 Douglas Moses 30(b)(6) 10.17.2019 

 279 6 Q. With proper hearing or hearing

 279 7 that delivers on its representations, one can

 279 8 leave the military with their hearing intact,

 279 9 true?

 279 10 MR. MORRISS: Object to the

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 279 11 form. Misstates the document.

 279 12 THE WITNESS: So very

 279 13 specifically it says, "With proper

 279 14 fitting, training and the right

 279 15 hearing protector."

 279 16 QUESTIONS BY MR. BUCHANAN:

 279 17 Q. That's right.

279:18 - 280:6 Douglas Moses 30(b)(6) 10.17.2019 

 279 18 And we can agree that the right

 279 19 hearing protector would be one that actually

 279 20 delivers the performance that it represents

 279 21 it has, right?

 279 22 A. If -- yes, if properly fit and

 279 23 trained.

 279 24 Q. Sure. Sure.

 279 25 And so that in selecting

 280 1 hearing protection devices, you wouldn't

 280 2 fault people selecting those devices for

 280 3 relying on claims about the protection they

 280 4 can provide, would you?

 280 5 A. Not if they're properly fit and

 280 6 trained.

280:7 - 280:15 Douglas Moses 30(b)(6) 10.17.2019 

 280 7 Q. In fact, you'd expect

 280 8 decision-makers to rely on a company's

 280 9 representations in their marketing materials

 280 10 about the performance and safety capabilities

 280 11 of hearing protectors, right?

 280 12 MR. MORRISS: Object to form.

 280 13 THE WITNESS: They should be

 280 14 able to count on these -- on the claim

 280 15 that we make.

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Foundation (602)

OVERRULED

280:25 - 281:11 Douglas Moses 30(b)(6) 10.17.2019 

 280 25 And so in making that decision

 281 1 about the right hearing protector, you

 281 2 wouldn't fault decision-makers for

 281 3 considering your claims about the performance

 281 4 of your products, would you?

 281 5 MR. MORRISS: Object to the

Re: [280:25-281:11]

Pltf Obj Outside scope of 

"clarification" counter and the answer is 

non-responsive

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 30 of 169
Douglas Moses 30(b)(6) 10.17.2019 30

 281 6 form.

 281 7 THE WITNESS: I wouldn't -- I

 281 8 wouldn't fault them as long as

 281 9 there's, again, a proper fitting

 281 10 protocol and a training protocol with

 281 11 that.

281:16 - 281:25 Douglas Moses 30(b)(6) 10.17.2019 

 281 16 Q. With regard to making the

 281 17 decision about the right hearing protector,

 281 18 certainly it was your expectation as somebody

 281 19 communicating the characteristics of hearing

 281 20 products that people receiving that messaging

 281 21 would be considering the company's claims

 281 22 about safety and performance, right?

 281 23 A. I would think it's likely that

 281 24 they would read those claims and, yes, rely

 281 25 on them.

282:1 - 282:5 Douglas Moses 30(b)(6) 10.17.2019 

 282 1 Q. All the more reason for them to

 282 2 be truthful, right?

 282 3 MR. MORRISS: Object to form.

 282 4 THE WITNESS: They should be

 282 5 truthful.

Re: [282:1-282:5]

Def Obj Argumentative (611, 403)

OVERRULED

285:18 - 285:25 Douglas Moses 30(b)(6) 10.17.2019 

 285 18 Q. Okay. And it was certainly

 285 19 3M's understanding that decision-makers in

 285 20 the military would be relying on the truth of

 285 21 the company's statements about the

 285 22 performance and safety of its products,

 285 23 right?

 285 24 MR. MORRISS: Object to form.

 285 25 THE WITNESS: Among other

Re: [285:18-285:25]

Pltf Obj Outside scope of 

"clarification" counter and the answer is 

non-responsive

OVERRULED

286:1 - 286:3 Douglas Moses 30(b)(6) 10.17.2019 

 286 1 internal testing that they might do or

 286 2 other information that they might seek

 286 3 to find.

Re: [286:1-286:3]

Pltf Obj Outside scope of 

"clarification" counter and the answer is 

non-responsive

OVERRULED

286:9 - 287:3 Douglas Moses 30(b)(6) 10.17.2019 

 286 9 Q. You understood that you had to

 286 10 speak truthfully about the safety and

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 31 of 169
Douglas Moses 30(b)(6) 10.17.2019 31

 286 11 performance of 3M's hearing protective

 286 12 products at all times when you were

 286 13 presenting information about your products to

 286 14 the military, fair?

 286 15 A. I believe we -- we have been

 286 16 and should have been truthful in these in

 286 17 that they were reviewed by numerous people to

 286 18 make sure that we were -- that we were.

 286 19 Q. Yeah, and I understand, sir,

 286 20 that you've been designated on the

 286 21 information the company had about its hearing

 286 22 protectors. I'm just talking about what the

 286 23 company was saying about it.

 286 24 You would agree that if the

 286 25 company was making performance and safety

 287 1 claims about its products, it should be true,

 287 2 agreed?

 287 3 A. Agreed. Yes.

287:4 - 287:8 Douglas Moses 30(b)(6) 10.17.2019 

 287 4 Q. I mean, this piece of marketing

 287 5 literature suggests that there could be very

 287 6 serious outcomes to our servicemen and women

 287 7 if they were afforded, frankly, inadequate

 287 8 hearing protection, correct?

Re: [287:4-287:8]

Pltf Obj Outside scope of 

"clarification" counter and the answer is 

non-responsive and misstates the 

document

SUSTAINED

287:13 - 287:18 Douglas Moses 30(b)(6) 10.17.2019 

 287 13 Q. Does that misstate the

 287 14 document, sir?

 287 15 A. Well, this talks about the

 287 16 benefits of wearing hearing -- properly

 287 17 fitted, proper trained, properly selected

 287 18 hearing protection.

Re: [287:13-287:18]

Pltf Obj Outside scope of 

"clarification" counter and the answer is 

non-responsive and misstates the 

document

SUSTAINED

287:20 - 288:3 Douglas Moses 30(b)(6) 10.17.2019 

 287 20 And is it unreasonable, sir, to

 287 21 say that if one does not get good hearing

 287 22 protection, that the consequences could be

 287 23 quite devastating?

 287 24 MR. MORRISS: Object to the

 287 25 form.

 288 1 THE WITNESS: This document

Re: [287:20-288:3]

Def Obj Argumentative; Misstates 

(611, 403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 32 of 169
Douglas Moses 30(b)(6) 10.17.2019 32

 288 2 specifically is about there could be

 288 3 some hearing loss.

298:23 - 299:11 Douglas Moses 30(b)(6) 10.17.2019 

 298 23 Q. In all of your review of the

 298 24 marketing collateral that you've seen over

 298 25 your years at the company, sir, have you ever

 299 1 seen any marketing collateral for the Combat

 299 2 Arms version 2 that have the flanges rolled

 299 3 back in someone's ear?

 299 4 A. In the imagery of it?

 299 5 Q. Yeah.

 299 6 A. I don't recall seeing it with

 299 7 the flanges rolled back in the ear.

 299 8 Q. Is there any marketing

 299 9 collateral for the Combat Arms, sir, that has

 299 10 the flange rolled back in someone's ear?

 299 11 A. Not that I was able to find.

300:6 - 300:20 Douglas Moses 30(b)(6) 10.17.2019 

 300 6 So we talked a little bit today

 300 7 about kind of the setting in and around the

 300 8 company in 2005 extending and leveraging the

 300 9 Combat Arms, the formation of the strategic

 300 10 business unit targeted towards the military.

 300 11 And we've looked now at some of the marketing

 300 12 statements and claims in the literature over

 300 13 the years.

 300 14 What I'd like to do now is

 300 15 explore with you a few of the marketing

 300 16 techniques that were being used as you, you

 300 17 know, started to extend the strategic

 300 18 business unit.

 300 19 Okay?

 300 20 A. Okay.

Re: [300:6-300:20]

Def Obj Relevance (401, 402)

SUSTAINED

318:9 - 318:23 Douglas Moses 30(b)(6) 10.17.2019 

 318 9 Q. Passing you, sir, what we

 318 10 marked as Exhibit 34.

 318 11 Sir, this is an e-mail exchange

 318 12 between yourself and Mr. Cimino and

 318 13 Mr. Santoro, well, right around that time

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 33 of 169
Douglas Moses 30(b)(6) 10.17.2019 33

 318 14 frame in March of 2011, right?

 318 15 A. The date on the top e-mail is

 318 16 March. Yes, it appears all the e-mails in

 318 17 the chain are from the March time frame.

 318 18 Q. Yeah. We have, frankly, your

 318 19 boss praising you for your success in seeding

 318 20 it into the new recruit program; isn't that

 318 21 right?

 318 22 A. I want to read back up through

 318 23 here real quick.

319:4 - 319:8 Douglas Moses 30(b)(6) 10.17.2019 

 319 4 Q. I do want to orient you so

 319 5 you're not looking for -- you're free to read

 319 6 the whole document, but I'm on 431.1, the

 319 7 front page, middle e-mail. It's an e-mail

 319 8 from Mr. Cimino to Mr. Santoro, cc to you.

319:9 - 319:14 Douglas Moses 30(b)(6) 10.17.2019 

 319 9 For the record, it reads, "85�

 319 10 cost, $7.63 selling price. Doug seeded it

 319 11 into new recruit issue program in US DOD.

 319 12 What more does he need to know? LOL."

 319 13 Did I read that correctly?

 319 14 A. You did.

Re: [319:9-319:14]

Def Obj 3M MIL. No. 7; Prejudice 

(403); Relevance (401, 402)

OVERRULED

319:15 - 319:18 Douglas Moses 30(b)(6) 10.17.2019 

 319 15 Q. Okay. And Mr. Cimino was your

 319 16 boss?

 319 17 A. Yes, probably at this time he

 319 18 was, uh-huh.

319:19 - 320:1 Douglas Moses 30(b)(6) 10.17.2019 

 319 19 Q. Okay. And you talk about

 319 20 85 percent {sic} cost, 7.63 selling price.

 319 21 So it costs the company 85� to

 319 22 make these; is that right?

 319 23 A. I don't know where Mike got

 319 24 these numbers. It's close, from my

 319 25 recollection, but I don't know where he got

 320 1 these numbers.

Re: [319:19-320:1]

Def Obj 3M MIL. No. 7; Prejudice 

(403); Relevance (401, 402)

OVERRULED

320:2 - 320:14 Douglas Moses 30(b)(6) 10.17.2019 

 320 2 Q. Very profitable product?

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 34 of 169
Douglas Moses 30(b)(6) 10.17.2019 34

 320 3 A. It's a profitable product.

 320 4 Q. I mean, it paid the bills,

 320 5 right?

 320 6 A. It was a very profitable

 320 7 product, yeah.

 320 8 Q. I mean, it paid the bills;

 320 9 that's what you wrote.

 320 10 Didn't you write that, sir?

 320 11 A. Oh, are you looking at the top

 320 12 here?

 320 13 Q. I am.

 320 14 A. Yes, I did write it there.

320:15 - 320:20 Douglas Moses 30(b)(6) 10.17.2019 

 320 15 Q. Okay. So your boss writes "85�

 320 16 cost, $7.63 selling price. Doug seeded it

 320 17 into new recruit issue program in US DOD.

 320 18 What more does he need to know? LOL."

 320 19 And you replied to that, right?

 320 20 A. I did.

Re: [320:15-320:20]

Def Obj 3M MIL. No. 7; Prejudice 

(403); Relevance (401, 402)

OVERRULED

320:21 - 320:24 Douglas Moses 30(b)(6) 10.17.2019 

 320 21 Q. "In US hearing protection" --

 320 22 And this is your writing,

 320 23 right?

 320 24 A. It appears to be, yes.

320:25 - 321:6 Douglas Moses 30(b)(6) 10.17.2019 

 320 25 Q. -- "CAE is 5 percent of 3M's US

 321 1 revenue and 19 percent of the OI."

 321 2 Please tell the jury what OI

 321 3 is.

 321 4 MR. MORRISS: Object to form.

 321 5 THE WITNESS: That's operating

 321 6 income.

Re: [320:25-321:6]

Def Obj 3M MIL No. 7; Compound; 

Vague (611, 403)

DEFER RULING

321:7 - 321:10 Douglas Moses 30(b)(6) 10.17.2019 

 321 7 QUESTIONS BY MR. BUCHANAN:

 321 8 Q. Okay. "CAE pays the bills."

 321 9 Is that what you wrote?

 321 10 A. I wrote that.

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 35 of 169
Douglas Moses 30(b)(6) 10.17.2019 35

322:7 - 322:19 Douglas Moses 30(b)(6) 10.17.2019 

 322 7 Q. Okay. And so when you wrote

 322 8 "19 percent of the operating income," what

 322 9 you're basically saying here is that even

 322 10 though we only -- even though it's only

 322 11 5 percent of revenue, that 5 percent of --

 322 12 that 5 percent of revenue may not look that

 322 13 big, but because it's so profitable, because

 322 14 our profit margin is so great, that scales to

 322 15 19 percent of the entity's operating income.

 322 16 That's what you're

 322 17 communicating, right?

 322 18 MR. MORRISS: Object to form.

 322 19 THE WITNESS: Generally.

Re: [322:7-322:19]

Def Obj 3M MIL No. 7; Compound; 

Mistates (611, 403); Prejudice (403)

DEFER RULING

323:2 - 323:9 Douglas Moses 30(b)(6) 10.17.2019 

 323 2 Q. And so I guess getting it

 323 3 seeded into that new recruit issue program at

 323 4 the US DOD was a pretty good thing for

 323 5 business, fair?

 323 6 A. It would help us sell more.

 323 7 Q. And that would be a pretty good

 323 8 for business?

 323 9 A. Generally, yes.

340:2 - 340:4 Douglas Moses 30(b)(6) 10.17.2019 

 340 2 Q. Sir, passing you Exhibit 37. A

 340 3 copy for counsel, please.

 340 4 A. Thank you.

341:11 - 341:19 Douglas Moses 30(b)(6) 10.17.2019 

 341 11 You were in the subject line

 341 12 "the new Combat Arms Earplugs SKUs awarded

 341 13 NSNs."

 341 14 Q. Yeah, and it seems to indicate

 341 15 it's an e-mail from you during your time at

 341 16 Aearo.

 341 17 Was that your e-mail address

 341 18 during your Aearo years, sir?

 341 19 A. I believe it was.

343:3 - 344:19 Douglas Moses 30(b)(6) 10.17.2019 

 343 3 Q. Your e-mail at the top states,

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 36 of 169
Douglas Moses 30(b)(6) 10.17.2019 36

 343 4 "The problem is that Doug Ohlin retired last

 343 5 Friday. Funny you should mention Doug. I

 343 6 got -- I just got off the phone with him

 343 7 where we discussed the possibility of Doug

 343 8 working with Aearo going forward in a

 343 9 yet-to-be-defined role."

 343 10 Do you see that, sir?

 343 11 A. I do.

 343 12 Q. Okay. And that's from the

 343 13 portion of this block of text that reflects

 343 14 an e-mail from you, right?

 343 15 A. I believe so.

 343 16 Q. Okay. And then it says, "The

 343 17 military team has been discussing this for

 343 18 the past few months since we heard that he

 343 19 was retiring."

 343 20 Did I read that correctly?

 343 21 A. Yes.

 343 22 Q. It says, "He's definitely

 343 23 interested in having an open discussion with

 343 24 us about consulting employment or some other

 343 25 role. I asked him if he would be interested

 344 1 in helping marketing, sales and R&D produce

 344 2 and distribute hearing products, and he said

 344 3 he has an open mind," and then it continues.

 344 4 Do you see that?

 344 5 A. I do.

 344 6 Q. Okay. You close, I guess, or

 344 7 maybe you don't, it's hard to tell with the

 344 8 quote -- the codes, but it says, "Doug will

 344 9 have a lot of clout with the government

 344 10 audiologists for a long time, and I would

 344 11 like to see if we can work something out."

 344 12 Did I read that correctly?

 344 13 A. Yes.

 344 14 Q. And did you-all -- you hired

 344 15 Doug Ohlin as a consultant shortly

 344 16 thereafter, right?

 344 17 A. Yes, as a contractor. We

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 37 of 169
Douglas Moses 30(b)(6) 10.17.2019 37

 344 18 began -- my recollection is we began some

 344 19 discussions with him shortly after this.

345:1 - 345:2 Douglas Moses 30(b)(6) 10.17.2019 

 345 1 Q. Okay.

 345 2 A. -- had with him.

Re: [345:1-345:2]

Def Obj Relevance (401, 402)

OVERRULED

345:3 - 346:6 Douglas Moses 30(b)(6) 10.17.2019 

 345 3 Q. Actually, where I was going

 345 4 was, did you have consulting agreements with

 345 5 Doug Ohlin?

 345 6 A. Not prior to this, no.

 345 7 Q. Okay. And I guess that's

 345 8 helpful.

 345 9 So prior to the time he left

 345 10 the military, the company didn't have a

 345 11 consulting relationship with Doug Ohlin?

 345 12 A. No, prior -- he worked for

 345 13 the -- the military as a contractor or as a

 345 14 consultant there.

 345 15 Q. He was a consultant for them

 345 16 for a period of time?

 345 17 A. Yes.

 345 18 Q. Long period of time?

 345 19 A. I don't know what it was called

 345 20 then, I forget, but I think it was like the

 345 21 Army hearing program sometime thereafter.

 345 22 Q. Right.

 345 23 And it was your understanding

 345 24 he was a consultant to them?

 345 25 A. I thought he was a senior

 346 1 person in that office.

 346 2 Q. Okay.

 346 3 A. Yeah, I misspoke just a moment

 346 4 ago. I -- but I think when he was in the

 346 5 military, I think he had a senior role in --

 346 6 with the audiology group.

Re: [345:3-346:6]

Pltf Obj Beyond the scope of 

clarification counter

SUSTAINED

347:11 - 347:24 Douglas Moses 30(b)(6) 10.17.2019 

 347 11 When was the first time, sir,

 347 12 that you had a written agreement with

 347 13 Dr. Ohlin?

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 38 of 169
Douglas Moses 30(b)(6) 10.17.2019 38

 347 14 Was it Dr. Ohlin or Mr. Ohlin?

 347 15 A. I believe he was a Ph.D.

 347 16 Q. And how did you refer to him?

 347 17 A. Doug.

 347 18 Q. Okay. Did you and Mr. or

 347 19 Dr. Ohlin have -- "you" being 3M -- have

 347 20 written agreements for the consultancy?

 347 21 A. We did, I believe, at Aearo,

 347 22 yes.

 347 23 Q. Okay.

 347 24 A. And then later at 3M.

376:14 - 376:19 Douglas Moses 30(b)(6) 10.17.2019 

 376 14 Q. Okay. So Dr. Ohlin worked with

 376 15 you for a number of years after his time in

 376 16 the military?

 376 17 A. After his time -- yeah, he was

 376 18 a civilian. He wasn't in the military, but

 376 19 he worked for a military organization.

376:25 - 377:5 Douglas Moses 30(b)(6) 10.17.2019 

 376 25 He would attend booths?

 377 1 A. Sometimes.

 377 2 Q. Kind of like he described,

 377 3 there'd be some marketing collateral,

 377 4 Dr. Ohlin would be there; you would be there?

 377 5 A. Sometimes. Sometimes, yeah.

377:11 - 377:12 Douglas Moses 30(b)(6) 10.17.2019 

 377 11 Q. Exhibit 41. This is also P947,

 377 12 Bates 3M_MDL000277922.

377:13 - 377:18 Douglas Moses 30(b)(6) 10.17.2019 

 377 13 This is you, sir, looks like

 377 14 scheduling a conference line with some

 377 15 colleagues, fair?

 377 16 A. Yeah, this looks like what

 377 17 would appear if we had a meeting and a

 377 18 dial-in phone number.

378:11 - 378:22 Douglas Moses 30(b)(6) 10.17.2019 

 378 11 Q. Okay. And you're reporting on

 378 12 this conference AUSA; is that right?

 378 13 A. I'm not reporting on it.

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 39 of 169
Douglas Moses 30(b)(6) 10.17.2019 39

 378 14 I'm -- I think this appears to be before the

 378 15 fact, before the AUSA event happened.

 378 16 Q. Thank you. Thank you.

 378 17 So this was before. And I

 378 18 guess you're talking about what has happened

 378 19 in prior years at that event, correct?

 378 20 A. One moment, please.

 378 21 I'm giving some recollections

 378 22 of prior years, yes.

378:23 - 379:7 Douglas Moses 30(b)(6) 10.17.2019 

 378 23 Q. Okay. And it says, "Over the

 378 24 past four years, I would say that as much as

 378 25 75 percent of the boot traffic was for

 379 1 soldier protection, PPE, namely Combat Arms

 379 2 Earplugs and ComTac," right?

 379 3 A. Yes.

 379 4 Q. And is that leveraging the

 379 5 Combat Arms brand into a broader military

 379 6 presence, sir?

 379 7 A. At AUSA, yes.

379:8 - 379:11 Douglas Moses 30(b)(6) 10.17.2019 

 379 8 Q. It says you had Doug Ohlin

 379 9 fitting Combat Arms to hundreds of soldiers,

 379 10 military personnel and key civilians, right?

 379 11 A. Yes, uh-huh.

Re: [379:8-379:11]

Def Obj Prejudice (403); Relevance 

(401, 402)

OVERRULED

379:12 - 380:11 Douglas Moses 30(b)(6) 10.17.2019 

 379 12 Q. And he's, I guess, drawn in

 379 13 many more soldiers and civilians and other

 379 14 displays and technologies and products

 379 15 combined, right?

 379 16 A. That's what I've written here.

 379 17 Q. And his presence there was

 379 18 actually helpful to the marketing of the

 379 19 product, fair?

 379 20 A. It appears that I thought so,

 379 21 and I have a recollection that I thought so

 379 22 at the time.

 379 23 Q. It was certainly in your view

 379 24 from a marketing perspective that the

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 40 of 169
Douglas Moses 30(b)(6) 10.17.2019 40

 379 25 marketing dollars spent working with

 380 1 Dr. Ohlin were good for the CAE and passive

 380 2 hearing brands, correct?

 380 3 A. I think they were good for the

 380 4 brands, yeah.

 380 5 Q. Yeah.

 380 6 And certainly helped drive

 380 7 revenue growth, right?

 380 8 A. I suppose in a general sense.

 380 9 I couldn't necessarily tie dollars back

 380 10 exactly to his efforts in all situations,

 380 11 but --

380:12 - 380:21 Douglas Moses 30(b)(6) 10.17.2019 

 380 12 Q. But from a return on investment

 380 13 approach, you know, kind of speaking like a

 380 14 business person, you got a lot of bang for

 380 15 your buck?

 380 16 MR. MORRISS: Objection.

 380 17 QUESTIONS BY MR. BUCHANAN:

 380 18 Q. Fair?

 380 19 A. I thought the money that we

 380 20 spent on his time was well worth it at the

 380 21 time.

Re: [380:12-380:21]

Def Obj Argumentative; Vague (611, 

403); Foundation (602); Relevance 

(401, 402)

OVERRULED

382:11 - 382:16 Douglas Moses 30(b)(6) 10.17.2019 

 382 11 Q. Okay. And so it says, "Two

 382 12 major developments." I guess these are the

 382 13 two major developments?

 382 14 A. Yes.

 382 15 Q. Okay.

 382 16 A. It seems logical.

382:17 - 383:7 Douglas Moses 30(b)(6) 10.17.2019 

 382 17 Q. "In this 5 to 7 million high

 382 18 margin product line."

 382 19 Did I read that correctly?

 382 20 A. Yeah. Yes, you did.

 382 21 Q. Okay. "Almost 90 percent

 382 22 margin."

 382 23 So is that profit margin you're

 382 24 referring to?

Re: [382:17-383:7]

Def Obj 3M MIL No. 7; Relevance 

(401, 402); Prejudice (403)

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 41 of 169
Douglas Moses 30(b)(6) 10.17.2019 41

 382 25 A. I believe I was speaking about

 383 1 gross margin here.

 383 2 Q. Gross margin.

 383 3 So that's just what you sell it

 383 4 for versus what it costs to make?

 383 5 A. Yes. Generally.

 383 6 Q. 90 percent margin?

 383 7 A. Yes. That's almost 90 percent.

383:8 - 383:13 Douglas Moses 30(b)(6) 10.17.2019 

 383 8 Q. That's a big deal. That's a

 383 9 good product, right?

 383 10 MR. MORRISS: Object to form

 383 11 and the comment.

 383 12 THE WITNESS: I think it's a

 383 13 profitable product.

Re: [383:8-383:13]

Def Obj Argumentative (611, 403); 

Relevance (401, 402)

DEFER RULING

383:14 - 383:24 Douglas Moses 30(b)(6) 10.17.2019 

 383 14 QUESTIONS BY MR. BUCHANAN:

 383 15 Q. I mean, it paid all your

 383 16 salaries?

 383 17 A. I've made some editorial

 383 18 comments here that says that, yes.

 383 19 Q. That's what you wrote?

 383 20 A. I did.

 383 21 Q. This was an important product

 383 22 to 3M, true?

 383 23 A. It was an important product to

 383 24 me and to the military team.

383:25 - 384:3 Douglas Moses 30(b)(6) 10.17.2019 

 383 25 Q. It paid all your salaries?

 384 1 MR. MORRISS: Object to form.

 384 2 THE WITNESS: That's what I've

 384 3 written here.

Re: [383:25-384:3]

Def Obj Asked (611, 403)

OVERRULED

384:4 - 384:10 Douglas Moses 30(b)(6) 10.17.2019 

 384 4 QUESTIONS BY MR. BUCHANAN:

 384 5 Q. Okay. And you've contracted

 384 6 Doug Ohlin to participate to help call

 384 7 attention to these new CAE developments; is

 384 8 that right?

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 42 of 169
Douglas Moses 30(b)(6) 10.17.2019 42

 384 9 A. That's what I've written here

 384 10 as well.

400:7 - 400:20 Douglas Moses 30(b)(6) 10.17.2019 

 400 7 Q. Sir, I've got to just kind of

 400 8 close some loops on some things we talked

 400 9 about today, or close the loop on a few

 400 10 things we talked about today.

 400 11 I want to talk a little bit

 400 12 more about distribution and that

 400 13 infrastructure, if we could.

 400 14 So, first of all, I understand

 400 15 as part of your efforts to get ready for

 400 16 today you sought out and reviewed

 400 17 distribution contracts the company had over

 400 18 the years.

 400 19 Would that be fair?

 400 20 A. That's fair, uh-huh.

410:13 - 411:3 Douglas Moses 30(b)(6) 10.17.2019 

 410 13 Q. Okay. New Dynamics, are they a

 410 14 distributor?

 410 15 A. They're a distributor of a

 410 16 variety of products. They are -- we've

 410 17 always referred to them as a value-added

 410 18 distributor because they have a unique

 410 19 relationship in that they're assembling,

 410 20 they're doing final assembly of products.

 410 21 Q. Yeah. And I wasn't speaking

 410 22 generally. I was actually with regard to the

 410 23 Combat Arms version 2.

 410 24 Are they a distributor for you?

 410 25 Co-manufacturer?

 411 1 A. They're a distributor. I think

 411 2 that's the -- that's the way, I guess, I

 411 3 would characterize it.

411:12 - 411:14 Douglas Moses 30(b)(6) 10.17.2019 

 411 12 Q. And you have an agreement with

 411 13 them?

 411 14 A. We do.

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 43 of 169
Douglas Moses 30(b)(6) 10.17.2019 43

413:18 - 413:22 Douglas Moses 30(b)(6) 10.17.2019 

 413 18 Q. And by virtue of aligning with

 413 19 New Dynamics in this way, that allowed the

 413 20 Combat Arms version 2 to be on the

 413 21 procurement list?

 413 22 A. Eventually, yes.

414:9 - 414:23 Douglas Moses 30(b)(6) 10.17.2019 

 414 9 Q. Did you identify New Dynamics

 414 10 as a business partner?

 414 11 A. I don't know if I called them a

 414 12 business partner. I think I had them as part

 414 13 of the marketing.

 414 14 Q. Was it within your function,

 414 15 though, the marketing function, that you kind

 414 16 of developed New Dynamics in this

 414 17 relationship?

 414 18 A. I was the marketer, and I

 414 19 helped be a part of this process, so it

 414 20 was -- it was a -- kind of a marketing

 414 21 strategy.

 414 22 Q. And it was a good thing?

 414 23 A. I think so.

Re: [414:9-414:23]

Def Obj Relevance (401, 402)

OVERRULED

414:24 - 415:15 Douglas Moses 30(b)(6) 10.17.2019 

 414 24 Q. Allowed you to extend patent

 414 25 exclusivity?

 415 1 MR. MORRISS: Object to form.

 415 2 Also outside the scope of the 30(b)(6)

 415 3 notice.

 415 4 THE WITNESS: Do I answer? I'm

 415 5 sorry.

 415 6 MR. MORRISS: You can answer.

 415 7 THE WITNESS: Can you ask the

 415 8 question again, please?

 415 9 QUESTIONS BY MR. BUCHANAN:

 415 10 Q. Yeah.

 415 11 So one of the things you were

 415 12 looking to do in aligning with New Dynamics

 415 13 was extend your exclusivity, right?

Re: [414:24-415:15]

Def Obj Scope; Vague (611, 403); 

Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 44 of 169
Douglas Moses 30(b)(6) 10.17.2019 44

 415 14 A. To prac -- yeah, the patent,

 415 15 the patented technology.

415:16 - 415:18 Douglas Moses 30(b)(6) 10.17.2019 

 415 16 (Moses 30(b)(6) Exhibit 45

 415 17 marked for identification.)

 415 18 QUESTIONS BY MR. BUCHANAN:

415:19 - 415:23 Douglas Moses 30(b)(6) 10.17.2019 

 415 19 Q. This was an initiative you

 415 20 pushed forward?

 415 21 A. I was part of a group that was

 415 22 under the military markets group that this

 415 23 was a strategy that was pursued.

Re: [415:19-415:23]

Def Obj Relevance (401, 402)

OVERRULED

416:9 - 416:19 Douglas Moses 30(b)(6) 10.17.2019 

 416 9 Q. Okay. So you came to learn

 416 10 that New Dynamics was developing a nonlinear

 416 11 earplug, and you knew that by New Dynamics

 416 12 status as an AbilityOne member, that if they

 416 13 brought that to market, it would be given

 416 14 preferential treatment in procurement

 416 15 processes, right?

 416 16 A. Again, I don't know that I knew

 416 17 about their efforts on a nonlinear plug until

 416 18 after we had already started talking to them

 416 19 for some time.

Re: [416:9-416:19]

Def Obj Relevance (401, 402); 3M MIL 

No. 14

OVERRULED

417:6 - 417:15 Douglas Moses 30(b)(6) 10.17.2019 

 417 6 Q. You knew that New Dynamics had

 417 7 kind of consumed the military market for foam

 417 8 plugs by virtue of their AbilityOne status,

 417 9 right?

 417 10 A. Yes. They had introduced a

 417 11 product -- and I don't recall the name of it

 417 12 now. It was a different-colored plug. It

 417 13 was a foam plug. And at some time before I

 417 14 became part of the company, I had heard about

 417 15 that.

Re: [417:6-417:15]

Def Obj Relevance (401, 402); 3M MIL 

No. 14

OVERRULED

417:16 - 417:22 Douglas Moses 30(b)(6) 10.17.2019 

 417 16 Q. And that consumed,

 417 17 cannibalized, if you will, the sales that had

 417 18 once been Aearo's sales of its foam plugs to

Re: [417:16-417:22]

Def Obj Argumentative (611, 403); 

Relevance (401, 402); 3M MIL No. 14

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 45 of 169
Douglas Moses 30(b)(6) 10.17.2019 45

 417 19 the military, fair?

 417 20 MR. MORRISS: Object to form.

 417 21 THE WITNESS: I think it was

 417 22 characterized that way to me.

418:3 - 418:10 Douglas Moses 30(b)(6) 10.17.2019 

 418 3 Q. When did you get word that they

 418 4 were working on a nonlinear plug, sir?

 418 5 A. I don't recall when I learned

 418 6 about it, but it was sometime after the

 418 7 acquisition, after we had reached out to the

 418 8 folks at New Dynamics, had established a

 418 9 dialog and were discussing opportunities to

 418 10 work together to provide hearing protection.

Re: [418:3-418:10]

Pltf Obj Beyond the scope of 

clarification counter

OVERRULED

418:23 - 419:4 Douglas Moses 30(b)(6) 10.17.2019 

 418 23 Q. Safe to say, though, after you

 418 24 developed your partnership and agreement with

 418 25 New Dynamics over the CAE nonlinear plug, New

 419 1 Dynamics did not bring their nonlinear plug

 419 2 to market, correct?

 419 3 A. I don't believe they ever

 419 4 brought it to market, no.

Re: [418:23-419:4]

Def Obj Relevance (401, 402); 3M MIL 

No. 14

OVERRULED

419:15 - 419:19 Douglas Moses 30(b)(6) 10.17.2019 

 419 15 Exhibit 45, this is a NISH

 419 16 Program Product Strategy - New Dynamics,

 419 17 presented to some of your colleagues by you

 419 18 and Mr. Santoro; is that right?

 419 19 A. That's what's written here.

421:1 - 421:12 Douglas Moses 30(b)(6) 10.17.2019 

 421 1 What is NISH?

 421 2 A. At the time, I think it was

 421 3 National Industries for the Severely

 421 4 Handicapped.

 421 5 Q. And there's the National

 421 6 Institute for the Blind, NISH, both

 421 7 AbilityOne partnerships, right?

 421 8 A. There is an AbilityOne program

 421 9 that has under it three different groups, and

 421 10 NIB, or National Industries for the Blind,

Re: [421:1-421:12]

Def Obj Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 46 of 169
Douglas Moses 30(b)(6) 10.17.2019 46

 421 11 and NISH at this time -- it's not called NISH

 421 12 any longer -- were under that umbrella.

421:19 - 424:10 Douglas Moses 30(b)(6) 10.17.2019 

 421 19 Q. Okay. And so what 3M is

 421 20 looking at here is an AbilityOne partnership,

 421 21 right?

 421 22 A. Is working with New Dynamics is

 421 23 what specifically -- oh, yes, AbilityOne

 421 24 partnership, yes.

 421 25 Q. Right.

 422 1 This is pre-transaction. This

 422 2 is 2010, right?

 422 3 A. That's right.

 422 4 Q. Okay. And so this is

 422 5 essentially the business case for why to do

 422 6 this, right?

 422 7 A. Yes, this is giving some

 422 8 information to our leadership team as they

 422 9 consider this.

 422 10 Q. And that's what you considered

 422 11 the folks you were presenting this to, your

 422 12 leadership team?

 422 13 A. I would -- yes, they would have

 422 14 a stake in this decision.

 422 15 Q. Okay. And so you're answering

 422 16 the question. I guess you're posing a

 422 17 hypothetical: Why AbilityOne partnership,

 422 18 right? And you've got some answers

 422 19 underneath, right?

 422 20 A. Yes.

 422 21 Q. "So partnering with an

 422 22 AbilityOne agency can lead to a 3M item being

 422 23 included on the US government's AbilityOne

 422 24 procurement list."

 422 25 Do you see that?

 423 1 A. I do.

 423 2 Q. "This distinction means that

 423 3 the item is a mandatory buy by any government

 423 4 employee seeking a like-item."

Re: [421:19-424:10]

Def Obj Relevance (401, 402); 3M MIL 

No. 14

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 47 of 169
Douglas Moses 30(b)(6) 10.17.2019 47

 423 5 Did I read that correctly?

 423 6 A. You did.

 423 7 Q. "It also would give 3M access

 423 8 to exclusive markets like base stores,

 423 9 preferred status on GSA, et cetera."

 423 10 Right?

 423 11 A. That's what it says here.

 423 12 Q. So that's the offense. That's

 423 13 why, you know, if you will, offensive

 423 14 strategy of doing an AbilityOne partnership,

 423 15 right?

 423 16 A. Yes, that's referred to as

 423 17 offensive here.

 423 18 Q. And you also had a defensive

 423 19 posture, right?

 423 20 A. Yes.

 423 21 Q. Defense. Protects 3M products,

 423 22 right?

 423 23 A. Yes.

 423 24 Q. "Relationship with NISH agency

 423 25 allowed 3M to extend exclusivity of the

 424 1 product lifecycle beyond the expiration date

 424 2 of applicable patents."

 424 3 That's what you wrote, right?

 424 4 A. That's what's written here.

 424 5 Q. Okay. "Also allowed" -- I'm

 424 6 sorry. "Listed here is a defensive strategy

 424 7 to block competitors' attempts to displace 3M

 424 8 products and technologies."

 424 9 Do you see that?

 424 10 A. Yes.

425:18 - 426:4 Douglas Moses 30(b)(6) 10.17.2019 

 425 18 You see the second bullet?

 425 19 A. I do.

 425 20 Q. "Defensive play. New Dynamics

 425 21 has been courted by other hearing protection

 425 22 manufacturers to produce CAE-type plugs,

 425 23 polyurethane plugs and earmuffs."

 425 24 Right?

Re: [425:18-426:4]

Def Obj Relevance (401, 402); 3M MIL 

No. 14

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 48 of 169
Douglas Moses 30(b)(6) 10.17.2019 48

 425 25 A. That's what it says, yes.

 426 1 Q. So you had that knowledge

 426 2 certainly before the partnership, right?

 426 3 A. Before the agreements were

 426 4 signed.

427:5 - 428:24 Douglas Moses 30(b)(6) 10.17.2019 

 427 5 Q. Okay. And they, DSCP, "has

 427 6 encouraged New Dynamics to broaden their line

 427 7 of hearing protection items and displace the

 427 8 3M CAE for cost reasons."

 427 9 Did I read that correctly?

 427 10 A. You read that correctly.

 427 11 Q. Okay. So one of the things you

 427 12 were doing by partnering with AbilityOne is

 427 13 kind of take them out of the running to make

 427 14 their own, right?

 427 15 A. In a generic sense that if they

 427 16 partnered with us, they might not be

 427 17 encouraged to move forward with something

 427 18 else.

 427 19 Q. Well, they haven't developed

 427 20 their own, right?

 427 21 A. Not to this day, no.

 427 22 Q. Okay. And this has been, what,

 427 23 nine years under this agreement now?

 427 24 A. Eight.

 427 25 Q. Okay. So you were successful

 428 1 with them?

 428 2 A. Well, I mean, we've been

 428 3 working for eight years with them

 428 4 successfully, I think.

 428 5 Q. Right.

 428 6 And New Dynamics hasn't

 428 7 broadened their line of hearing protection to

 428 8 displace the CAE, right?

 428 9 A. Not the CAE specifically, no.

 428 10 Q. Okay. And then you've got your

 428 11 deal points on the left, which is kind of the

 428 12 business points?

Re: [427:5-428:24]

Def Obj Relevance (401, 402); 3M MIL 

No. 14

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 49 of 169
Douglas Moses 30(b)(6) 10.17.2019 49

 428 13 A. Yes, I see that, uh-huh.

 428 14 Q. So when you were doing this

 428 15 deal, it was going to be -- you were going to

 428 16 maintain that operating income percentage,

 428 17 right?

 428 18 A. Yes, raise or defend current

 428 19 operating percentage in dollars.

 428 20 Q. Okay. So in other words, you

 428 21 know, your deal point was that 3M was going

 428 22 to make no less by entering into this

 428 23 partnership with New Dynamics, right?

 428 24 A. In a nutshell, yes.

429:2 - 429:12 Douglas Moses 30(b)(6) 10.17.2019 

 429 2 Q. Okay. So you'll do this deal

 429 3 and you'll make no less than you're currently

 429 4 making.

 429 5 I guess that raises a question.

 429 6 If you're going to make no less, how is New

 429 7 Dynamics going to make some money?

 429 8 A. They would sell to the

 429 9 government at a price that the government

 429 10 would accept.

 429 11 Q. So they would charge more?

 429 12 A. Possibly.

Re: [429:2-429:12]

Def Obj Relevance (401, 402)

DEFER RULING

429:13 - 430:1 Douglas Moses 30(b)(6) 10.17.2019 

 429 13 Q. So you're going to make no

 429 14 less, but you're going to bring a partner in,

 429 15 and then the government is just going to have

 429 16 to pay more?

 429 17 MR. MORRISS: Object to form.

 429 18 THE WITNESS: I don't know

 429 19 where the pricing ended up here, but

 429 20 depending on the items, if they were

 429 21 buying raw -- raw plugs from us in

 429 22 bulk form, we were focused here on the

 429 23 OI, regardless of what the price was,

 429 24 the OI percentage in dollars based

 429 25 on -- regardless of what the price we

 430 1 charged them.

Re: [429:13-430:1]

Pltf Obj Beyond the scope of 

clarification, and response was 

nonresponsive and confusing

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 50 of 169
Douglas Moses 30(b)(6) 10.17.2019 50

430:3 - 430:10 Douglas Moses 30(b)(6) 10.17.2019 

 430 3 Q. Well, you know what the

 430 4 government ended up paying on these, right?

 430 5 A. I have a sense for it, but I

 430 6 don't really recall the numbers.

 430 7 Q. They ended up paying more than

 430 8 you were charging for them before, right?

 430 9 A. I think that's my recollection,

 430 10 that they were paying more.

Re: [430:3-430:10]

Def Obj Relevance (401, 402)

DEFER RULING

430:11 - 430:21 Douglas Moses 30(b)(6) 10.17.2019 

 430 11 Q. Okay. So the DSCP was looking

 430 12 to strike a deal with New Dynamics to make a

 430 13 product like the 3M CAE for a better price.

 430 14 And so what you-all did was you went to New

 430 15 Dynamics, you brought them into your reach

 430 16 and into your grasp, and the government ended

 430 17 up having to pay more?

 430 18 MR. MORRISS: Object to form

 430 19 and the commentary.

 430 20 THE WITNESS: That's a

 430 21 generalization, yes.

Re: [430:11-430:21]

Def Obj Argumentative (611, 403); 

Relevance (401, 402); Prejudicial (403)

DEFER RULING

430:23 - 430:25 Douglas Moses 30(b)(6) 10.17.2019 

 430 23 Q. An accurate generalization?

 430 24 MR. MORRISS: Object to form.

 430 25 THE WITNESS: Substantially.

Re: [430:23-430:25]

Def Obj Vague (611, 403); Relevance 

(401, 402)

OVERRULED

431:11 - 431:14 Douglas Moses 30(b)(6) 10.17.2019 

 431 11 Q. Okay. You were going to extend

 431 12 the 3M brand into more areas of the military

 431 13 and government market, right?

 431 14 A. Yes, uh-huh.

431:15 - 431:20 Douglas Moses 30(b)(6) 10.17.2019 

 431 15 Q. It would reduce cost to 3M,

 431 16 right, because you weren't going to have to

 431 17 do all this distribution stuff, just send it

 431 18 to one customer, right?

 431 19 A. Specifically for the Combat

 431 20 Arms, yes.

Re: [431:15-431:20]

Def Obj Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 51 of 169
Douglas Moses 30(b)(6) 10.17.2019 51

432:3 - 432:11 Douglas Moses 30(b)(6) 10.17.2019 

 432 3 Q. The political defense, is that

 432 4 you aligning with an organization for the

 432 5 severely handicapped to provide some cover

 432 6 concerning inquiries about what was happening

 432 7 in the earplug market?

 432 8 MR. MORRISS: Object to form.

 432 9 THE WITNESS: I don't have a

 432 10 specific recollection, but it could

 432 11 be.

Re: [432:3-432:11]

Def Obj Argumentative (611, 403); 

Relevance (401, 402); Prejudice (403)

SUSTAINED

432:25 - 433:9 Douglas Moses 30(b)(6) 10.17.2019 

 432 25 Q. Well, okay. Would it be fair

 433 1 to say that you viewed this transaction with

 433 2 New Dynamics as also helping you get some

 433 3 political cover from some heat you were

 433 4 getting at this point in time --

 433 5 MR. MORRISS: Object to form.

 433 6 QUESTIONS BY MR. BUCHANAN:

 433 7 Q. -- on some inquiries?

 433 8 A. I don't recall that, so I --

 433 9 yeah, I don't recall that.

Re: [432:25-433:9]

Def Obj Relevance (401, 402); 

Foundation (602)

SUSTAINED

456:21 - 456:25 Douglas Moses 30(b)(6) 10.17.2019 

 456 21 At this point, sir, I

 456 22 appreciate your testimony today and

 456 23 thank you. I have no further

 456 24 questions.

 456 25 THE WITNESS: Thank you.

457:17 - 458:5 Douglas Moses 30(b)(6) 10.17.2019 

 457 17 Q. Okay. And the documents and

 457 18 the data contained under the Tab 3M SKU, does

 457 19 that identify the date of the sale of the

 457 20 Combat Arms Earplug version 2 and who it was

 457 21 sold to?

 457 22 A. It does have that data there.

 457 23 Q. And have you looked at the

 457 24 Excel spreadsheet to determine the first sale

 457 25 of the Combat Arms version 2 as it is

 458 1 contained in the SAP database?

 458 2 A. I have.

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 52 of 169
Douglas Moses 30(b)(6) 10.17.2019 52

 458 3 Q. And when was that sale?

 458 4 A. It appears that the first sale

 458 5 is on July 22, 1999.

458:6 - 458:23 Douglas Moses 30(b)(6) 10.17.2019 

 458 6 Q. And who was that sale to?

 458 7 A. USACHPPM.

 458 8 Q. And what is USACHPPM? And

 458 9 that's C-H-P-P-M?

 458 10 A. C-H-P-P-M.

 458 11 Q. Right.

 458 12 And what is CHPPM?

 458 13 A. It is the -- I believe it was

 458 14 the medical command, but it was on Aberdeen

 458 15 Proving Grounds.

 458 16 Q. And what is Aberdeen Proving

 458 17 Grounds?

 458 18 A. It's a facility out in Maryland

 458 19 that tests products. They have other

 458 20 functions, too, though.

 458 21 Q. Is that a government military

 458 22 facility?

 458 23 A. Yes.

Re: [458:6-458:23]

Pltf Obj Beyond the scope of 

clarification counter; 403

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 53 of 169
Douglas Moses 12.05.2019 

Updated 3/3/2021

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 54 of 169
Douglas Moses 12.05.2019 2

Designation Objection Rulings

8:3 - 8:6 Douglas Moses 12.05.2019 

 8 3 Q. Good morning, Mr. Moses. Will

 8 4 you state your full name for the record,

 8 5 please?

 8 6 A. It's Douglas Hugh Moses.

8:11 - 8:14 Douglas Moses 12.05.2019 

 8 11 You understand that you're here

 8 12 today testifying in the Combat Arms Earplug

 8 13 litigation?

 8 14 A. I do.

9:10 - 9:19 Douglas Moses 12.05.2019 

 9 10 Q. All right. Now, you are a

 9 11 witness in this case, and I take it you

 9 12 understand that men and women who have either

 9 13 in prior years served in the military, in the

 9 14 Armed Services, or who are currently serving

 9 15 in the Armed Services have brought this

 9 16 litigation and are making claims against a

 9 17 company called Aearo and 3M.

 9 18 Do you understand that?

 9 19 A. Generally, yes.

Re: [9:10-9:19]

Def Obj Relevance (401, 402); 

Prejudice (403)

SUSTAINED

9:20 - 10:4 Douglas Moses 12.05.2019 

 9 20 Q. Okay. And you're a witness in

 9 21 this case because you currently and in the

 9 22 past have worked for both Aearo and 3M; is

 9 23 that right?

 9 24 A. That's correct.

 9 25 Q. And, in fact, you were, for --

 10 1 or have been, for much of your career,

 10 2 involved with marketing the product at issue

 10 3 in this case, which is the Combat Arms

 10 4 Earplug; is that correct?

10:6 - 10:7 Douglas Moses 12.05.2019 

 10 6 THE WITNESS: Generally, yes,

 10 7 uh-huh.

10:9 - 10:14 Douglas Moses 12.05.2019 

 10 9 Q. Okay. Let's introduce you a

 10 10 little bit more to the jury before we get

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 55 of 169
Douglas Moses 12.05.2019 3

 10 11 started.

 10 12 Tell us where you reside.

 10 13 A. I live in Indianapolis,

 10 14 Indiana.

10:15 - 11:1 Douglas Moses 12.05.2019 

 10 15 Q. Okay. And you are currently

 10 16 employed at 3M; is that right?

 10 17 A. I am.

 10 18 Q. Now, tell me if I'm wrong, but

 10 19 it looks like from the documents that you

 10 20 were first hired by a company called Aearo in

 10 21 March of 2005; is that right?

 10 22 A. Yes.

 10 23 Q. Now, Aearo was the company that

 10 24 originally was manufacturing and selling what

 10 25 is called the Combat Arms Earplug; is that

 11 1 right?

11:3 - 11:4 Douglas Moses 12.05.2019 

 11 3 THE WITNESS: Yes, Aearo

 11 4 Technologies.

11:9 - 11:21 Douglas Moses 12.05.2019 

 11 9 Q. And if I understand correctly,

 11 10 you continued to work for Aearo Technologies

 11 11 until that company was purchased by your

 11 12 current employer, which is 3M; is that right?

 11 13 A. That's correct.

 11 14 Q. And so it looks like you have

 11 15 worked at Aearo or 3M continuously for

 11 16 approximately 15 years?

 11 17 A. Yes, just about.

 11 18 Q. Now, during that period of

 11 19 time, is it true that at all times you have

 11 20 been a marketing person?

 11 21 A. Yes.

12:6 - 13:15 Douglas Moses 12.05.2019 

 12 6 Q. In other words, you have been

 12 7 working on the business side of the

 12 8 corporation, correct?

 12 9 A. Yes, as a marketer, uh-huh.

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 56 of 169
Douglas Moses 12.05.2019 4

 12 10 Q. Okay. And when you were first

 12 11 hired, my recollection from the documents is

 12 12 that you were hired as a senior brand

 12 13 manager?

 12 14 A. That was the title we had then,

 12 15 yes.

 12 16 Q. Okay. And you worked as a

 12 17 senior brand manager at Aearo Technologies

 12 18 from 2005 to 2008, correct?

 12 19 A. Yes. I don't know that our

 12 20 titles changed until 2009.

 12 21 Q. Okay. And then starting after

 12 22 the merger, your title changed to what?

 12 23 A. At some point it was just

 12 24 generally marketing manager.

 12 25 Q. Okay. And you're still a

 13 1 marketing manager today?

 13 2 A. I am.

 13 3 Q. So for 15 years you've been a

 13 4 marketing person either at Aearo or at 3M,

 13 5 the company that has manufactured -- or the

 13 6 companies that have manufactured and sold the

 13 7 Combat Arms Earplug that is at issue in this

 13 8 case; is that fair?

 13 9 A. Yes.

 13 10 Q. Okay. If I recall correctly,

 13 11 and tell me if I'm wrong, but you took over

 13 12 the marketing for the Combat Arms Earplug

 13 13 line, I believe, in the fall of 2006; is that

 13 14 right?

 13 15 A. Yes.

13:25 - 14:13 Douglas Moses 12.05.2019 

 13 25 Q. Is it true that from the fall

 14 1 of 2006 until 2012, or approximately six

 14 2 years, you were the lead marketing manager

 14 3 related to the sales of the Combat Arms

 14 4 Earplugs to the military?

 14 5 A. Not just to the military --

 14 6 yes, but not just to the military. To

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 57 of 169
Douglas Moses 12.05.2019 5

 14 7 industry as well.

 14 8 Q. Okay. So you sold the Combat

 14 9 Arms Earplug, the dual-ended version that is

 14 10 at issue in this case, not only to the

 14 11 military but also to industry?

 14 12 A. Well, yeah, there were some

 14 13 retail packs that ended up in stores as well.

18:25 - 19:17 Douglas Moses 12.05.2019 

 18 25 Q. Okay. Now, I've read your

 19 1 previous testimony in this case that you have

 19 2 given, and tell me if I'm wrong, but is it

 19 3 true, sir, that it was your responsibility as

 19 4 the primary marketer for the Combat Arms

 19 5 Earplug, the version 2, your primary

 19 6 responsibility was to sell more Combat Arms

 19 7 through more channels or new opportunities,

 19 8 fair?

 19 9 A. It's to grow the business, yes.

 19 10 Q. Right.

 19 11 And growing the business, your

 19 12 primary responsibility, growing the business,

 19 13 means to increase sales, correct?

 19 14 A. Generally, yes.

 19 15 Q. And hopefully by doing so,

 19 16 increase profits, correct?

 19 17 A. Generally, yes, uh-huh.

19:18 - 20:7 Douglas Moses 12.05.2019 

 19 18 Q. Okay. And we know when we're

 19 19 talking about the combat earplug, the

 19 20 version 2 dual-ended earplug in this case,

 19 21 this was an extremely profitable product,

 19 22 correct?

 19 23 A. It made a profit, sure.

 19 24 Q. Well, I've seen documents that

 19 25 say it sold for over $7, or $7 at times, and

 20 1 it cost the company 85� to produce.

 20 2 Are you familiar with that?

 20 3 A. I don't have all those numbers

 20 4 memorized, but generally, yes.

Re: [19:18-20:7]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 58 of 169
Douglas Moses 12.05.2019 6

 20 5 Q. Okay. That's an extremely

 20 6 profitable product, isn't it?

 20 7 A. It is profitable.

34:8 - 34:24 Douglas Moses 12.05.2019 

 34 8 Q. Did you have any sort of formal

 34 9 training or medical training related to

 34 10 audiology, for instance?

 34 11 A. Not -- no.

 34 12 Q. Did you have any knowledge of

 34 13 the technical aspects of hearing protective

 34 14 devices?

 34 15 A. No.

 34 16 Q. What about any knowledge

 34 17 about -- the technical aspects about how a

 34 18 hearing protective device might work?

 34 19 A. I don't believe so.

 34 20 Q. What about testing of these

 34 21 hearing protective devices like the Combat

 34 22 Arms Earplugs, did you have any knowledge or

 34 23 training or experience with testing earplugs?

 34 24 A. No.

Re: [34:8-34:24]

Pltf Obj beyond the scope of 

clarification

SUSTAINED

35:20 - 36:3 Douglas Moses 12.05.2019 

 35 20 Q. I'm going to hand you

 35 21 Exhibit 4.

 35 22 A. Thank you.

 35 23 Q. Exhibit 4, sir, is a document

 35 24 that was provided to us from 3M's files in

 35 25 this litigation, and it looks like this is a

 36 1 2006 business plan.

 36 2 Do you see that?

 36 3 A. I do.

36:18 - 37:3 Douglas Moses 12.05.2019 

 36 18 Q. If you go down to the very

 36 19 bottom of the page, I want to ask you and

 36 20 point out something.

 36 21 The very last -- actually the

 36 22 last bullet point down there says, "Military

 36 23 channel: Military is the primary driver of

 36 24 market growth. Substantial opportunity

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Douglas Moses 12.05.2019 7

 36 25 exists to further penetrate this channel with

 37 1 new products."

 37 2 Do you see that?

 37 3 A. I do.

38:18 - 39:22 Douglas Moses 12.05.2019 

 38 18 Q. Okay. If you go to 469.6,

 38 19 you'll see in the second bullet point the

 38 20 company's plans with respect to hearing

 38 21 protection states, "Extend presence in the

 38 22 military, leveraging the Combat Arms Earplug

 38 23 platform."

 38 24 Do you see that?

 38 25 A. I do.

 39 1 Q. And you took over the Combat

 39 2 Arms Earplug platform from a marketing

 39 3 standpoint in 2006, did you not?

 39 4 A. In the fall, yes.

 39 5 Q. And so was it true that in 2006

 39 6 you in fact took over the platform intended

 39 7 to do this, to "extend the presence in the

 39 8 military and leverage the Combat Arms Earplug

 39 9 platform" at that time?

 39 10 A. I don't know at the time I

 39 11 would have seen this because we were getting

 39 12 towards the end of the 2006 when we would

 39 13 have been doing 2007 planning, but this is

 39 14 generally true.

 39 15 Q. Okay. In other words, at this

 39 16 time in 2006 when you took over as the main

 39 17 marketing man in the company for Combat Arms,

 39 18 one of the things that you wanted to do was

 39 19 sell more or extend your presence with the

 39 20 military, correct?

 39 21 A. Yes. Through the platform,

 39 22 yes.

39:23 - 41:1 Douglas Moses 12.05.2019 

 39 23 Q. Okay. Sir, I want to refer you

 39 24 to 469.5, please.

 39 25 If you go down the page, sir,

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Douglas Moses 12.05.2019 8

 40 1 to, I believe, under the heading Combat Arms.

 40 2 Do you see that?

 40 3 A. I do.

 40 4 Q. Now, this business plan that

 40 5 was created in 2005, it states, "Sales

 40 6 exploded in 2005, more than quadrupling the

 40 7 2004 sales."

 40 8 Correct?

 40 9 A. That's what it says here, yes.

 40 10 Q. Okay. And I take it when you

 40 11 took over as the main marketing person at the

 40 12 company, you had an understanding that as far

 40 13 as the Combat Arms sales, they were exploding

 40 14 because of the military sales, correct?

 40 15 A. I don't remember the word

 40 16 "exploding." I remember that it was growing.

 40 17 Q. At any rate, it was clear to

 40 18 you that when you were put in charge, there

 40 19 were sales that were increasing at a very

 40 20 rapid rate related to the Combat Arms

 40 21 Earplug, correct?

 40 22 A. I think they were increasing,

 40 23 certainly.

 40 24 Q. Okay. And this says

 40 25 "exploding," right?

 41 1 A. Yes, that's what's on the page.

72:11 - 72:15 Douglas Moses 12.05.2019 

 72 11 Let's talk about your

 72 12 responsibilities as the lead marketer of the

 72 13 Combat Arms Earplug at the company.

 72 14 Okay?

 72 15 A. Okay.

74:3 - 74:17 Douglas Moses 12.05.2019 

 74 3 Q. One of the things that you

 74 4 would do would be to lead business

 74 5 development activities, correct?

 74 6 A. I had some business development

 74 7 activities with regards to this. We also had

 74 8 a lead salesperson that was also kind of

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Douglas Moses 12.05.2019 9

 74 9 responsible for program office engagement.

 74 10 I engaged with some of the

 74 11 military audiologists occasionally, and I

 74 12 would call that business development

 74 13 activity.

 74 14 Q. Okay. And did you have a sales

 74 15 force?

 74 16 A. There was -- yes, force. I

 74 17 don't know, four or five people, yes.

75:10 - 75:22 Douglas Moses 12.05.2019 

 75 10 Q. As far as business development

 75 11 activities, would you, for example, attend

 75 12 trade shows?

 75 13 A. Sometimes, yes, uh-huh.

 75 14 Q. Okay. And professional

 75 15 organization meetings?

 75 16 A. Conferences, yes, uh-huh.

 75 17 Q. And at those meetings, for

 75 18 example, you would have a booth set up that

 75 19 would market your products to the attendees;

 75 20 is that right?

 75 21 A. Sometimes it was a formal

 75 22 booth, sometimes it was a tabletop, but, yes.

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75:23 - 77:5 Douglas Moses 12.05.2019 

 75 23 Q. I see. Okay.

 75 24 And I take it that at those

 75 25 tabletops or those booths you would have your

 76 1 products there or brochures for your products

 76 2 or your catalogs that would show the

 76 3 attendees -- or tell things to the attendees

 76 4 about the Combat Arms Earplugs; is that fair?

 76 5 A. The Combat Arms likely would

 76 6 have been included in the literature that

 76 7 included the other products that we had

 76 8 focused towards the military and law

 76 9 enforcement.

 76 10 Q. Give us some idea of the trade

 76 11 shows that you typically attended or of the

 76 12 professional organizations or conferences

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Douglas Moses 12.05.2019 10

 76 13 that you attended related to selling the

 76 14 Combat Arms Earplugs to the military.

 76 15 A. There was -- there is a JDVAC,

 76 16 which is the Joint Defense Veterans

 76 17 Administration Audiology Conference, I think

 76 18 is what that means.

 76 19 There's the National Hearing

 76 20 Conservation Association, or NHCA. I don't

 76 21 know that I attended all of them, but I

 76 22 attended many of those.

 76 23 There was a show called AUSA,

 76 24 was the Association of the US Army. I

 76 25 generally attended that as well.

 77 1 Q. Okay.

 77 2 A. And then there were some like

 77 3 industry-type national safety congress shows

 77 4 where sometimes military personnel might see

 77 5 a product there.

77:6 - 77:13 Douglas Moses 12.05.2019 

 77 6 Q. And you were the main marketing

 77 7 person for the Combat Arms at those

 77 8 conferences when you would go, correct?

 77 9 MR. MORRISS: Object to form.

 77 10 THE WITNESS: Parts of it.

 77 11 Salespeople would also attend and

 77 12 others that could present the

 77 13 products, yes.

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77:14 - 77:19 Douglas Moses 12.05.2019 

 77 14 QUESTIONS BY MR. CARTMELL:

 77 15 Q. And I take it that you would,

 77 16 for instance, meet with or talk with

 77 17 attendees, including, as you said,

 77 18 audiologists, correct?

 77 19 A. I could.

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80:5 - 80:17 Douglas Moses 12.05.2019 

 80 5 But you would meet with

 80 6 audiologists about the Combat Arms Earplugs;

 80 7 I've seen from your documents as well,

 80 8 correct?

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Douglas Moses 12.05.2019 11

 80 9 A. Yes. Sometimes more the later

 80 10 generations than Combat Arms version 2,

 80 11 though.

 80 12 Q. And when you would meet with

 80 13 these audiologists, for example, you needed

 80 14 to have an understanding of the technical

 80 15 aspects of the Combat Arms product, correct?

 80 16 A. Somewhat, but also more what

 80 17 problem are they trying to solve.

87:14 - 88:3 Douglas Moses 12.05.2019 

 87 14 Q. Well, don't you think as the

 87 15 main marketing person who was meeting with

 87 16 all the audiologists and trying to sell as

 87 17 many Combat Arms Earplugs that you had to

 87 18 have a very good understanding of how that

 87 19 Combat Arms Earplug worked and what the

 87 20 characteristics of the product were, how it

 87 21 needed to be used by the end user, including

 87 22 the soldiers?

 87 23 MR. MORRISS: Object to form.

 87 24 THE WITNESS: I kind of -- most

 87 25 of my conversations were around

 88 1 features and benefits more than

 88 2 fitting and fielding and training and

 88 3 things like that.

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Compound (611, 403); Prejudice (403)

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88:5 - 88:14 Douglas Moses 12.05.2019 

 88 5 Q. But as far as features and

 88 6 benefits of the Combat Arms Earplugs, you had

 88 7 to have a good understanding of that, didn't

 88 8 you?

 88 9 A. I had to have an understanding

 88 10 to at least have a reasonable conversation

 88 11 about it, sure.

 88 12 Q. Because you're trying to sell

 88 13 it, right?

 88 14 A. That's right.

88:25 - 89:6 Douglas Moses 12.05.2019 

 88 25 Q. Did you do it also for the

 89 1 Combat Arms Earplugs?

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Douglas Moses 12.05.2019 12

 89 2 A. I don't recall meeting with

 89 3 rank and file soldiers. Maybe at a trade

 89 4 show. I remember talking to audiologists or

 89 5 if we had a -- if we had a new concept,

 89 6 maybe. I'm speculating.

89:10 - 89:20 Douglas Moses 12.05.2019 

 89 10 Q. Were there times as the main

 89 11 marketing person and the individual who was

 89 12 trying to sell these to the military that you

 89 13 would actually meet military members who used

 89 14 the products and do research to see what

 89 15 complaints they might have or what they might

 89 16 like to see in hearing protection, or did you

 89 17 not do that?

 89 18 A. I likely had conversations with

 89 19 the troops. I just don't recall a specific

 89 20 one.

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89:21 - 90:4 Douglas Moses 12.05.2019 

 89 21 Q. Did you also actually go and

 89 22 witness, on the barracks or wherever, these

 89 23 soldiers, in training and things like that,

 89 24 with the Combat Arms Earplugs that you were

 89 25 trying to sell them in their ears, to try to

 90 1 get an understanding of how they were using

 90 2 them?

 90 3 A. It's possible, but I don't

 90 4 recall that.

90:8 - 90:21 Douglas Moses 12.05.2019

 90 8 As you sit here today, over

 90 9 your experience for six years as the main

 90 10 marketing person in the company related to

 90 11 selling to the military, you don't recall a

 90 12 single instance of going actually to the

 90 13 barracks or to where soldiers were training

 90 14 and witnessing them with the actual earplugs

 90 15 in their ears, correct?

 90 16 A. Not to a barracks or a training

 90 17 exercise that I recall.

 90 18 Q. Do you recall going anywhere to

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Douglas Moses 12.05.2019 13

 90 19 see how these soldiers were using the Combat

 90 20 Arms Earplugs and actually witnessing it?

 90 21 A. I don't recall.

93:21 - 94:1 Douglas Moses 12.05.2019 

 93 21 You were also responsible, as

 93 22 the lead marketing individual from 2006 to

 93 23 2012 related to the sales of -- or marketing

 93 24 of Combat Arms Earplugs, you were also

 93 25 responsible for reviewing and approving the

 94 1 brochures for that product, correct?

94:3 - 94:13 Douglas Moses 12.05.2019 

 94 3 THE WITNESS: I would have been

 94 4 part of the review process, yes.

 94 5 QUESTIONS BY MR. CARTMELL:

 94 6 Q. Right.

 94 7 And the ultimate decision

 94 8 related -- or approval would have been yours,

 94 9 correct?

 94 10 A. I think after everyone had

 94 11 weighed in and the graphic designer had made

 94 12 the changes, I would have said it's good to

 94 13 go to the printer, yes.

94:22 - 95:8 Douglas Moses 12.05.2019 

 94 22 Q. As far as catalogs, during the

 94 23 time you were the main marketing man or the

 94 24 lead marketing man related to the Combat Arms

 94 25 Earplugs, you were the -- in charge of the

 95 1 ultimate approval of catalogs including that

 95 2 product, correct?

 95 3 A. I would have approached it as a

 95 4 team, and the decision to move it towards

 95 5 printing, which I suppose could be considered

 95 6 the final -- the final decision, in some

 95 7 cases was mine, in some cases was others, and

 95 8 I participated in it.

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98:9 - 99:5 Douglas Moses 12.05.2019 

 98 9 Q. Is it true from 2006, when you

 98 10 became the main marketing man at the company

 98 11 related to the Combat Arms Earplug, until

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Douglas Moses 12.05.2019 14

 98 12 2012, during that entire time you were on the

 98 13 team either at Aearo or at 3M that would

 98 14 review the marketing materials, the

 98 15 brochures, the catalogs, some instances sales

 98 16 sheets? You would be on the team to approve

 98 17 those materials, correct?

 98 18 A. Generally, yes, uh-huh.

 98 19 Q. Okay. Same is true with

 98 20 training materials, correct?

 98 21 A. Generally, yes. There was a

 98 22 training department, and sometimes they

 98 23 produced documents that I'm not aware of.

 98 24 Q. Sometimes your company would

 98 25 put out website information, materials,

 99 1 marketing materials, related to the Combat

 99 2 Arms.

 99 3 You were on the team that was

 99 4 assigned to approve that for use on the

 99 5 website, correct?

99:7 - 99:11 Douglas Moses 12.05.2019 

 99 7 THE WITNESS: Generally I would

 99 8 have some contribution to that, but I

 99 9 also know that they could have just,

 99 10 you know, updated websites and things

 99 11 without my knowledge as well.

103:22 - 104:9 Douglas Moses 12.05.2019 

 103 22 Q. And we also talked about you

 103 23 were on the team during the time that you

 103 24 were the main marketing person for the

 103 25 company related to the Combat Arms for

 104 1 inserts that would include instructions.

 104 2 You would be on that team as

 104 3 well, correct?

 104 4 A. I would have been one of the

 104 5 reviewers, yes.

 104 6 Q. Okay. And with respect to the

 104 7 inserts for the Combat Arms Earplugs -- and

 104 8 you're familiar with inserts, correct?

 104 9 A. Sure.

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Douglas Moses 12.05.2019 15

104:22 - 105:24 Douglas Moses 12.05.2019 

 104 22 And with respect to the Combat

 104 23 Arms Earplug instructions for use, user

 104 24 instructions and those types of inserts, who

 104 25 on that team that you were on was ultimately

 105 1 responsible for the approval of those

 105 2 instructions during 2006 to 2012?

 105 3 A. Generally the lab personnel or

 105 4 the technical team would carry a lot more

 105 5 weight because they were the ones that

 105 6 approved, really, the instructions.

 105 7 My part of that would have -- I

 105 8 would have been looking for branding and

 105 9 maybe typographical errors and other things

 105 10 like that.

 105 11 Legal would have reviewed -- I

 105 12 don't recall there being one person that is

 105 13 the ultimate reviewer, but certainly the lab

 105 14 or the technical people would have had a lot

 105 15 of weight into those.

 105 16 Q. So with respect to the inserts

 105 17 for Combat Arms Earplugs version 2, like

 105 18 we've talked about, and the portion of that

 105 19 insert that related to the instructions for

 105 20 the user, your testimony is that the lab

 105 21 individuals, the ones who worked in the lab,

 105 22 would be primarily providing that input, but

 105 23 all the others on the team could provide

 105 24 input and approve those as well, correct?

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106:1 - 106:14 Douglas Moses 12.05.2019 

 106 1 THE WITNESS: For the

 106 2 version 2, I wasn't here when those

 106 3 were created. I recall a revision,

 106 4 maybe some -- later to the branding

 106 5 piece of it, but I wasn't involved in

 106 6 the original user instructions, so I

 106 7 don't know who was on that team at the

 106 8 time and who would have approved it.

 106 9 But your general question of

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Douglas Moses 12.05.2019 16

 106 10 would everyone have gotten to see it,

 106 11 I don't know that. But likely

 106 12 everyone would have had a -- you know,

 106 13 like on the team would have had a

 106 14 chance to see it.

106:24 - 107:11 Douglas Moses 12.05.2019 

 106 24 So, Mr. Moses, during the time

 106 25 that you were the lead of the marketing team

 107 1 related to the Combat Arms Earplug -- and

 107 2 let's talk about version 2. With respect to

 107 3 the insert that included the instructions for

 107 4 use, when you were on that team that would

 107 5 review inserts, including instructions, it

 107 6 sounds like there were members from the

 107 7 technical team that were on that team with

 107 8 you; is that right?

 107 9 A. I don't want to nitpick it, but

 107 10 I wasn't on the team. I didn't work there

 107 11 when that insertion was created.

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124:22 - 125:14 Douglas Moses 12.05.2019 

 124 22 Q. Sir, you were asked to review

 124 23 marketing materials during 2006 to 2012, and

 124 24 brochures during that period of time and

 124 25 catalogs during that period of time, and also

 125 1 the inserts that had the instructions for the

 125 2 users of the Combat Arms Earplugs because

 125 3 that fell within your job responsibilities,

 125 4 correct?

 125 5 MR. MORRISS: Object to form.

 125 6 THE WITNESS: If you're asking

 125 7 specifically about the user inserts, I

 125 8 would have been on a group of people

 125 9 that would have seen them.

 125 10 But again, you know, technical

 125 11 service would have been largely

 125 12 responsible for its contents,

 125 13 especially the user instruction piece,

 125 14 and legal would have been responsible.

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Douglas Moses 12.05.2019 17

128:4 - 128:22 Douglas Moses 12.05.2019 

 128 4 Q. Okay. So knowing that you were

 128 5 assigned as the lead marketing person for the

 128 6 Combat Arms Earplugs in 2006 -- I think you

 128 7 said in the fall, correct?

 128 8 A. Yes.

 128 9 Q. And that at that time, other

 128 10 than occasionally wearing hearing protection

 128 11 at your prior job, you didn't really have any

 128 12 experience with hearing protection, marketing

 128 13 hearing protection devices.

 128 14 What did you do to sort of get

 128 15 up to speed and learn about hearing

 128 16 protective devices so that you could

 128 17 effectively market them?

 128 18 A. I tried to have conversations

 128 19 with people who knew more than me, attended

 128 20 trade shows. Again, things like that where I

 128 21 could talk to people who knew more about

 128 22 them. Conferences.

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130:12 - 130:16 Douglas Moses 12.05.2019 

 130 12 Q. Okay. What about training from

 130 13 a technical aspect? Did you go back and

 130 14 review, for example, the Combat Arms Earplugs

 130 15 testing that was done?

 130 16 A. I don't recall doing that.

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131:14 - 131:19 Douglas Moses 12.05.2019 

 131 14 Q. When you started, Mr. Moses, as

 131 15 the lead marketing man related to sales of

 131 16 the Combat Arms Earplugs version 2 to the

 131 17 military in 2006, did you have any knowledge

 131 18 of the requirements for labeling of hearing

 131 19 protective devices?

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132:2 - 132:3 Douglas Moses 12.05.2019 

 132 2 Q. You don't believe so?

 132 3 A. I don't believe so.

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133:16 - 133:21 Douglas Moses 12.05.2019 

 133 16 Q. Mr. Moses, Exhibit 13 is an

 133 17 e-mail from Cyd Kladden to Barbara

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Douglas Moses 12.05.2019 18

 133 18 Chelminiak; is that correct?

 133 19 A. I don't know Barbara, I don't

 133 20 recall her name, so it's good as anything,

 133 21 yeah.

133:22 - 133:24 Douglas Moses 12.05.2019 

 133 22 Q. Okay. Who is Cyd?

 133 23 A. Cyd was an administrative

 133 24 person who worked in the E-A-RCAL lab.

133:25 - 134:8 Douglas Moses 12.05.2019 

 133 25 Q. Okay. The subject is "Label

 134 1 Summary."

 134 2 Do you see that?

 134 3 A. I do.

 134 4 Q. And Cyd says, "This is a

 134 5 summary of the EPA labeling requirements I

 134 6 put together for Doug Moses a while ago."

 134 7 That's you, correct?

 134 8 A. Yes.

135:3 - 135:11 Douglas Moses 12.05.2019 

 135 3 Q. Okay. Well, at some point, I

 135 4 take it, as the lead marketing person and

 135 5 somebody who had to review the labeling, you

 135 6 learned that there were EPA requirements,

 135 7 correct?

 135 8 MR. MORRISS: Object to form.

 135 9 THE WITNESS: I understood that

 135 10 on some documents there was an EPA

 135 11 label.

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(611, 403)

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135:14 - 135:20 Douglas Moses 12.05.2019 

 135 14 And that there actually are

 135 15 regulations that the EPA has for hearing

 135 16 protective devices.

 135 17 Did you know that before today?

 135 18 MR. MORRISS: Object to form.

 135 19 THE WITNESS: Before today,

 135 20 yes.

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138:1 - 138:2 Douglas Moses 12.05.2019 

 138 1 MR. CARTMELL: Let's see the

 138 2 whole document, please, Michael.

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Douglas Moses 12.05.2019 19

138:5 - 139:3 Douglas Moses 12.05.2019 

 138 5 Q. Okay. It states,

 138 6 "Section 211.204-1, Information Content of

 138 7 Primary Label."

 138 8 Do you see that?

 138 9 A. I see that written here, yes.

 138 10 Q. I mean, is this something

 138 11 you've ever seen, these regulations? For

 138 12 example, Section 211.204, .204?

 138 13 A. I don't recall this, no.

 138 14 Q. You don't think you've ever

 138 15 seen these EPA regulations?

 138 16 A. I'm not saying that. I'm

 138 17 saying I don't recall it.

 138 18 Q. Okay. If you go down,

 138 19 there's "sample EPA label must be on primary

 138 20 label of the box and readily visible without

 138 21 opening the package."

 138 22 Do you see that?

 138 23 A. I do.

 138 24 Q. Okay. And then it has a

 138 25 picture with a noise reduction rating like we

 139 1 saw on the blister -- the back of the blister

 139 2 card, correct?

 139 3 A. Similar to that, yes.

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139:4 - 139:6 Douglas Moses 12.05.2019 

 139 4 Q. Okay. And I take it before

 139 5 today, you knew that was a requirement by the

 139 6 EPA, didn't you?

139:4 - 139:6 Douglas Moses 12.05.2019 

 139 4 Q. Okay. And I take it before

 139 5 today, you knew that was a requirement by the

 139 6 EPA, didn't you?

139:8 - 139:14 Douglas Moses 12.05.2019 

 139 8 THE WITNESS: In some -- yes.

 139 9 I don't know about for military, but

 139 10 certainly for packaging that a

 139 11 consumer would see.

 139 12 QUESTIONS BY MR. CARTMELL:

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Douglas Moses 12.05.2019 20

 139 13 Q. Okay.

 139 14 A. I understood over time.

139:8 - 139:14 Douglas Moses 12.05.2019 

 139 8 THE WITNESS: In some -- yes.

 139 9 I don't know about for military, but

 139 10 certainly for packaging that a

 139 11 consumer would see.

 139 12 QUESTIONS BY MR. CARTMELL:

 139 13 Q. Okay.

 139 14 A. I understood over time.

141:2 - 142:2 Douglas Moses 12.05.2019 

 141 2 Q. If you look at

 141 3 Section 211.204-4(a), it states, "The mean

 141 4 attenuation and standard deviation values

 141 5 obtained for each test frequency and the NRR

 141 6 calculated from those values."

 141 7 Do you see that?

 141 8 A. I see that written here, yes.

 141 9 Q. And at some point, as the lead

 141 10 marketing man and the reviewer of the

 141 11 packaging material and the labels, did you

 141 12 know that that NRR statement needed to be

 141 13 there with the packaging?

 141 14 A. Are you speaking about this

 141 15 particular NRR label here?

 141 16 Q. Yeah. That gives an example of

 141 17 what it needs to be.

 141 18 A. At some point I learned that

 141 19 over time, yes.

 141 20 Q. Okay. Go to the next page, if

 141 21 you would, to subsection E. I want to ask

 141 22 you about that.

 141 23 It states, "Instructions as to

 141 24 the proper insertion or placement of the

 141 25 device."

 142 1 Do you see that?

 142 2 A. I do.

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Douglas Moses 12.05.2019 21

147:4 - 148:9 Douglas Moses 12.05.2019 

 147 4 Q. Section 211.204-4(e) of the EPA

 147 5 labeling requirements for hearing protective

 147 6 devices states that "instructions as to the

 147 7 proper insertion or placement of the device

 147 8 must be on the labeling."

 147 9 Did you know that?

 147 10 MR. MORRISS: I object to the

 147 11 form.

 147 12 Where are you reading from?

 147 13 THE WITNESS: I don't know

 147 14 enough about these requirements to

 147 15 answer your question. I don't know if

 147 16 this is saying that this is required

 147 17 or if this is simply supporting

 147 18 information. I don't understand the

 147 19 EPA regulations.

 147 20 QUESTIONS BY MR. CARTMELL:

 147 21 Q. Okay. So that's important to

 147 22 know, I think, for the jury.

 147 23 Your testimony is that even

 147 24 though you were the brand manager and the

 147 25 main marketing manager in charge of selling

 148 1 as many Combat Arms Earplugs as possible to

 148 2 increase sales during 2006 to 2012, and you

 148 3 were on the review team that reviewed the

 148 4 instructions for use and the EPA labeling,

 148 5 you really don't understand the EPA

 148 6 regulations; is that fair?

 148 7 A. It is fair that I don't

 148 8 understand these, but I do rely on the lab to

 148 9 know these, and I would have relied on them.

Re: [147:4-148:9]

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Prejudice (403)

SUSTAINED

148:13 - 149:9 Douglas Moses 12.05.2019 

 148 13 labeling information, was there a time,

 148 14 though, that you learned that the product,

 148 15 Combat Arms Earplug product, was required to

 148 16 include instructions as to the proper

 148 17 insertion or placement of the device which

 148 18 would accompany the device?

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Douglas Moses 12.05.2019 22

 148 19 MR. MORRISS: Object to form

 148 20 and the commentary.

 148 21 THE WITNESS: I recall

 148 22 understanding that the blister pack

 148 23 required instructions or we included

 148 24 instructions. Maybe I should say it

 148 25 that way. We included instructions in

 149 1 it.

 149 2 I don't recall who, but I

 149 3 recall a conversation sometime in that

 149 4 orientation period after I took over

 149 5 the business where the bulk version

 149 6 did not require instructions or EPA

 149 7 labeling. I can't recall who told me

 149 8 that; I just recall having that

 149 9 conversation.

156:4 - 156:16 Douglas Moses 12.05.2019 

 156 4 QUESTIONS BY MR. CARTMELL:

 156 5 Q. Mr. Moses, I want to now talk

 156 6 to you about whether, when you became the

 156 7 main marketing man at the company related to

 156 8 selling version 2 of the Combat Arms

 156 9 Earplugs, whether you would have gone back

 156 10 and looked at the labeling or the

 156 11 instructions for use that were in effect at

 156 12 that time to try to familiarize yourself with

 156 13 it.

 156 14 A. Knowing myself, probably not.

 156 15 I was looking forward to newer versions of

 156 16 the Combat Arms.

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158:6 - 158:11 Douglas Moses 12.05.2019 

 158 6 Q. Do you know if the sales of the

 158 7 Combat Arms version 2 earplug was always

 158 8 sales in bulk up until the time that you took

 158 9 over?

 158 10 A. I think I saw evidence that it

 158 11 was also sold in blister packs as well.

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Douglas Moses 12.05.2019 23

159:14 - 159:23 Douglas Moses 12.05.2019 

 159 14 Q. Okay. But, for example, if the

 159 15 military was about to have a rapid field

 159 16 initiative or a surge or send people to

 159 17 combat and they wanted lots of earplugs, the

 159 18 earplugs from your company, Aearo at the

 159 19 time, would typically be sold in bulk,

 159 20 correct?

 159 21 MR. MORRISS: Object to form.

 159 22 THE WITNESS: I think I recall

 159 23 a lot of those being in bulk.

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(401, 402); Vague (611, 403)

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159:24 - 160:10 Douglas Moses 12.05.2019 

 159 24 QUESTIONS BY MR. CARTMELL:

 159 25 Q. Okay. And when there were bulk

 160 1 sales from your company of the Combat Arms

 160 2 Earplugs, I think from the testimony of

 160 3 Mr. Myers, the typical bulk package would be

 160 4 50 pairs of plugs that were put in a plastic

 160 5 bag, and then the plastic bag full of the

 160 6 plugs would be put in a cardboard box.

 160 7 Is that consistent with your

 160 8 memory?

 160 9 A. That's -- yes, that's

 160 10 consistent.

160:11 - 160:19 Douglas Moses 12.05.2019 

 160 11 Q. Okay. And do you know if from

 160 12 1999 to 2005 whether there was instructions

 160 13 for use of the Combat Arms version 2 earplugs

 160 14 that would be either on the -- affixed to the

 160 15 box or in the plastic bag when there was a

 160 16 bulk sale?

 160 17 A. I don't know. That wasn't one

 160 18 of the topics that I was to speak to at the

 160 19 30(b)(6).

Re: [160:11-160:19]

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clarification

SUSTAINED

160:23 - 161:18 Douglas Moses 12.05.2019 

 160 23 Q. I'm going to hand you what's

 160 24 been marked as Exhibit 14.

 160 25 Sir, this is an e-mail with an

 161 1 attachment that was produced from your files

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Douglas Moses 12.05.2019 24

 161 2 at the company in this litigation, and I want

 161 3 to ask you a few questions about this.

 161 4 This is in 2009 from you to

 161 5 Mike Cimino, who was your boss, correct?

 161 6 A. At this time frame, yes.

 161 7 Q. Okay. And you send an e-mail.

 161 8 You say, "You like?" question mark.

 161 9 What does that mean?

 161 10 A. I assume I'm showing my boss

 161 11 something I would like his opinion.

 161 12 Q. Okay. And it looks like, if

 161 13 you turn the page, there are some slides,

 161 14 maybe PowerPoint slides, that you are or

 161 15 somebody at the company has prepared; is that

 161 16 right?

 161 17 A. These look like PowerPoint

 161 18 slides, yes.

161:19 - 161:24 Douglas Moses 12.05.2019 

 161 19 Q. Okay. And the title is

 161 20 "Previous Combat Arms Earplugs." It says

 161 21 it's "company proprietary information," and

 161 22 then it has a picture of the dual-ended

 161 23 Combat Arms Earplugs, right?

 161 24 A. Yes.

161:25 - 162:8 Douglas Moses 12.05.2019 

 161 25 Q. And then I want to ask you

 162 1 about this. It says, "Generation 2,

 162 2 dual-ended." It says several things. It

 162 3 says, "One-size-fits-all approach," which is

 162 4 true, right?

 162 5 MR. MORRISS: Object to form.

 162 6 THE WITNESS: It doesn't have

 162 7 extra sizes. It doesn't have a small

 162 8 or medium, so, yes.

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OVERRULED

162:17 - 163:6 Douglas Moses 12.05.2019 

 162 17 Q. Okay. It says it was "sold in

 162 18 bulk pack, no individual instructions."

 162 19 Do you see that?

 162 20 A. I do.

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Douglas Moses 12.05.2019 25

 162 21 Q. Okay. So at least as of 2009,

 162 22 in slides that you were asking your boss to

 162 23 approve or whether he liked them, it states

 162 24 specifically that when there was bulk sales

 162 25 of the Combat Arms version 2 earplugs, there

 163 1 was no individual instructions sent; is that

 163 2 correct?

 163 3 A. It says that here, yes.

 163 4 Q. Okay. And is that consistent

 163 5 with what your memory is?

 163 6 A. Yes.

163:7 - 163:15 Douglas Moses 12.05.2019 

 163 7 Q. Okay. In other words, there

 163 8 would be a bag of 50 pairs, and that would a

 163 9 plastic Ziploc bag that would be placed in a

 163 10 cardboard box, and there wouldn't be

 163 11 individual instructions for use for those

 163 12 50 pairs that would go with that, correct?

 163 13 A. I don't recall any

 163 14 instructions, but I don't recall it being a

 163 15 Ziploc bag either, just a --

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163:19 - 163:24 Douglas Moses 12.05.2019 

 163 19 Q. Okay. So when the soldiers or

 163 20 the military would receive, up until 2009,

 163 21 bulk shipments of the Combat Arms Earplugs,

 163 22 your memory is that the individual soldiers

 163 23 would not get their own set of instructions,

 163 24 correct?

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164:1 - 164:3 Douglas Moses 12.05.2019 

 164 1 THE WITNESS: I don't know what

 164 2 the individual soldiers received from

 164 3 the military.

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164:10 - 164:17 Douglas Moses 12.05.2019 

 164 10 And you just brought up that

 164 11 you don't know whether there were

 164 12 instructions that were given to the

 164 13 individual soldiers about the earplugs from

 164 14 the military, right?

 164 15 A. I said I don't know what

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 164 16 instructions were given to them by the

 164 17 military, not that they didn't receive them.

169:9 - 169:23 Douglas Moses 12.05.2019 

 169 9 Q. Okay. All right. So we've

 169 10 nailed down that you don't know at all times

 169 11 from 2006 to 2012 whether the Army, the Navy

 169 12 or the Air Force, if they received bulk sales

 169 13 of Combat Arms, you don't know whether or not

 169 14 they would have received instruction from

 169 15 those branches on how to use the Combat Arms

 169 16 version 2, correct?

 169 17 A. I don't know what their

 169 18 training regimen would have been.

 169 19 Q. So the answer is you don't --

 169 20 you don't know if they got any instruction,

 169 21 correct?

 169 22 A. I don't know that they did or

 169 23 didn't.

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clarification and duplicative/cumulative 

of above

SUSTAINED

173:14 - 173:24 Douglas Moses 12.05.2019 

 173 14 that. And as you sit here today, you don't

 173 15 know whether the military was providing any

 173 16 instruction related to the version 2,

 173 17 correct?

 173 18 MR. MORRISS: Object to form.

 173 19 THE WITNESS: The only

 173 20 recollection I have from the Army was

 173 21 a wallet card that they produced for

 173 22 the Combat Arms 2. I would call that

 173 23 instruction, if that was indeed given

 173 24 to them.

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of above and improper designation as 

only half the question designated

SUSTAINED

176:3 - 176:13 Douglas Moses 12.05.2019 

 176 3 Q. During that period of time,

 176 4 2006 to 2012, who at your company would have

 176 5 been the people that knew most about how the

 176 6 instructions should be given as far as proper

 176 7 wear and proper fit?

 176 8 A. Likely somebody in the lab.

 176 9 Q. Who would you say, based on

 176 10 your experience?

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Douglas Moses 12.05.2019 27

 176 11 A. Elliott would be knowledgeable.

 176 12 Q. Elliott Berger?

 176 13 A. Yes.

176:21 - 177:6 Douglas Moses 12.05.2019 

 176 21 Q. I'm going to hand you what's

 176 22 been marked as Exhibit 15.

 176 23 Sir, Exhibit 15 is an e-mail

 176 24 that came from the company's files and was

 176 25 produced in this litigation. You're not on

 177 1 this e-mail, but I want to ask you about

 177 2 this.

 177 3 It's an e-mail Elliott Berger,

 177 4 who you just mentioned, who works in the lab,

 177 5 correct?

 177 6 A. He did, yes.

177:20 - 178:17 Douglas Moses 12.05.2019 

 177 20 Q. Okay. The subject is the

 177 21 "Combat Arms Earplug Instruction Guide."

 177 22 Do you see that?

 177 23 A. I do.

 177 24 Q. And then it has that as an

 177 25 attachment.

 178 1 And I want to direct you to the

 178 2 bottom e-mail from Marc Santoro.

 178 3 Who is Marc Santoro?

 178 4 A. Marc was the marketing manager

 178 5 on the hearing protection side and would have

 178 6 worked on Combat Arms.

 178 7 Q. It says, "Elliott, as I

 178 8 mentioned, we are developing a single-pair

 178 9 blister pack, and we thought this would be a

 178 10 good opportunity to place an instruction

 178 11 guide inside the packaging. We continue to

 178 12 hear that the soldiers don't understand how

 178 13 the plugs should be used or how to properly

 178 14 wear them. Appreciate your feedback on

 178 15 this."

 178 16 Do you see that?

 178 17 A. I see that.

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178:18 - 179:1 Douglas Moses 12.05.2019 

 178 18 Q. Okay. So at this time it looks

 178 19 like in 2005, it doesn't look like they had

 178 20 any instructions before that because he's

 178 21 talking about developing them, correct?

 178 22 MR. MORRISS: Object to form.

 178 23 THE WITNESS: It looks like

 178 24 he's developing a blister pack, so

 178 25 this would have been the origin of the

 179 1 blister pack.

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Hearsay (801, 802)

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180:6 - 180:13 Douglas Moses 12.05.2019 

 180 6 Q. Let me ask you real quick: Do

 180 7 you know whether or not with the blister

 180 8 packs an instruction guide was actually

 180 9 developed and sent with the product?

 180 10 A. When I took over the business

 180 11 in the fall of 2006, I believe the blister

 180 12 packs had instructions already included, so I

 180 13 kind of inherited it that way.

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180:14 - 181:17 Douglas Moses 12.05.2019 

 180 14 Q. I'm trying to figure out when a

 180 15 soldier might get a blister pack from the

 180 16 military related to the version 2.

 180 17 A. I'm trying to respond.

 180 18 Is that a question or do you --

 180 19 it's possible that they would get it at a

 180 20 base store. Possible they might get it at an

 180 21 exchange or a -- something like that.

 180 22 Q. Okay. So why would a soldier

 180 23 go to a base store and buy the Combat Arms

 180 24 Earplugs if, in fact, they were being

 180 25 provided to them free of cost by the

 181 1 military?

 181 2 A. I don't know, unless maybe they

 181 3 lost theirs and had to replace them. I don't

 181 4 know.

 181 5 Q. Okay. So would you agree with

 181 6 me that it would be a small number of

 181 7 soldiers in comparison to the numbers of

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Douglas Moses 12.05.2019 29

 181 8 purchases of these that would be actually

 181 9 military people using blister packs?

 181 10 A. I don't know. I'd have to go

 181 11 look at some numbers and think about it, but

 181 12 I don't know. Probably more bulk than

 181 13 blister, but --

 181 14 Q. By a long shot, don't you

 181 15 think?

 181 16 A. Probably. Probably much more

 181 17 on the bulk side.

181:18 - 181:25 Douglas Moses 12.05.2019 

 181 18 Q. Okay. As this e-mail -- if you

 181 19 go back to the first page -- says in 2005, it

 181 20 says, "We continue to hear that the soldiers

 181 21 don't understand how the plugs should be used

 181 22 or how to properly wear them."

 181 23 When you took over the

 181 24 business, were you hearing that?

 181 25 A. I don't recall hearing that.

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(801, 802)

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182:1 - 182:14 Douglas Moses 12.05.2019 

 182 1 Q. You don't recall as you sit

 182 2 here today ever hearing that?

 182 3 A. I don't believe so.

 182 4 Q. Let me ask you, sir: As you

 182 5 sit here today, do you ever recall a time

 182 6 when anyone from the military told you, as

 182 7 the main marketing man for the company

 182 8 related to the version 2 Combat Arms

 182 9 Earplugs, that they did not want instructions

 182 10 for these products -- for this product?

 182 11 A. Someone from the military

 182 12 saying that?

 182 13 Q. Yeah.

 182 14 A. No, I don't recall that.

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187:12 - 187:25 Douglas Moses 12.05.2019 

 187 12 (Moses Exhibit 17 marked for

 187 13 identification.)

 187 14 QUESTIONS BY MR. CARTMELL:

 187 15 Q. This was also produced from the

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Douglas Moses 12.05.2019 30

 187 16 files of the company in this litigation, and

 187 17 this looks like another copy, potentially, of

 187 18 the product insert for the Combat Arms

 187 19 dual-sided earplugs.

 187 20 Do you see that?

 187 21 A. Yes.

 187 22 Q. The date on this, if you go to

 187 23 the very bottom, is now 2006.

 187 24 Do you see that?

 187 25 A. I do.

188:11 - 188:16 Douglas Moses 12.05.2019 

 188 11 Q. Is this around the time that

 188 12 you took over as the marketing manager for

 188 13 sales to the military of the dual-ended

 188 14 Combat Arms?

 188 15 A. This was, what, four, five

 188 16 months before I did.

188:17 - 188:25 Douglas Moses 12.05.2019 

 188 17 Q. Okay. But do you think this is

 188 18 likely -- if we go to the second page, this

 188 19 is likely -- when you say you inherited the

 188 20 instructions, likely the instructions for use

 188 21 that you inherited, meaning they were already

 188 22 in place by the time you started?

 188 23 MR. MORRISS: Object to form.

 188 24 THE WITNESS: This looks pretty

 188 25 similar, yes.

Re: [188:17-188:25]

Def Obj Vague (611, 403); Foundation 

(602); Relevance (401, 402)

OVERRULED

189:2 - 189:5 Douglas Moses 12.05.2019 

 189 2 Q. Okay. And do you have any idea

 189 3 who it was that drafted the instructions for

 189 4 use?

 189 5 A. I don't.

189:6 - 189:23 Douglas Moses 12.05.2019 

 189 6 Q. Let's look at those

 189 7 instructions.

 189 8 It states, "Determine the

 189 9 proper end, green or yellow, for insertion

 189 10 depending on the application needs." And

 189 11 then it says, "Grasp the earplug by the stem

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Douglas Moses 12.05.2019 31

 189 12 and insert into ear canal. Adjust plug for

 189 13 best sealing performance."

 189 14 Do you see that?

 189 15 A. I do.

 189 16 Q. And that is actually an

 189 17 instruction on how to insert the plug,

 189 18 correct?

 189 19 A. Yes. Yes, I believe so, and

 189 20 then it shows a picture of him doing just

 189 21 that.

 189 22 Q. Okay. Yeah, let's see that

 189 23 picture there.

189:24 - 190:5 Douglas Moses 12.05.2019 

 189 24 Is this your best recollection

 189 25 of the picture that existed in the

 190 1 instructions for use when you took over the

 190 2 product line?

 190 3 MR. MORRISS: Object to form.

 190 4 THE WITNESS: I don't --

 190 5 probably, but I don't recall.

Re: [189:24-190:5]

Def Obj Relevance (401, 402); 

Foundation (602)

OVERRULED

190:6 - 190:23 Douglas Moses 12.05.2019 

 190 6 QUESTIONS BY MR. CARTMELL:

 190 7 Q. Okay. So we've talked about

 190 8 the instructions for insert into the ear

 190 9 canal. Let's go back.

 190 10 And below that there's a

 190 11 fitting tip.

 190 12 A. Yes, I see that.

 190 13 Q. And it states, "Fitting is

 190 14 easier if ear is pulled upward and outward

 190 15 during insertion and is also improved if the

 190 16 sealing rings of the outward-directed plug

 190 17 are rolled back upon themselves."

 190 18 Do you see that?

 190 19 A. I do.

 190 20 Q. Who is it at the company that

 190 21 drafted that?

 190 22 Did you ever find out?

 190 23 A. I don't know.

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Douglas Moses 12.05.2019 32

190:24 - 191:10 Douglas Moses 12.05.2019 

 190 24 Q. Okay. When you started in the

 190 25 fall of 2006, did you ever ask anybody what

 191 1 that meant?

 191 2 A. I don't -- the simple answer

 191 3 is, no, I didn't ask. I don't actually

 191 4 recall that until some years later.

 191 5 Q. You don't recall ever seeing

 191 6 this fitting tip until some years later?

 191 7 A. I saw fitting tips. I don't

 191 8 recall -- I don't recall knowing about the

 191 9 rolling back, if that's what you're asking

 191 10 about.

Re: [190:24-191:10]

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191:11 - 191:21 Douglas Moses 12.05.2019 

 191 11 Q. Okay. When do you think you

 191 12 likely learned about the rolling back?

 191 13 A. It could have been in one of

 191 14 the previous depositions.

 191 15 Q. Okay. So do you think prior to

 191 16 this litigation that you didn't have any idea

 191 17 that there was a fitting tip requiring that,

 191 18 as it states here, "the rings of the

 191 19 outward-directed plug are rolled back for

 191 20 improved fitting"?

 191 21 A. I don't recall knowing that.

Re: [191:11-191:21]

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OVERRULED

191:22 - 191:25 Douglas Moses 12.05.2019 

 191 22 Q. Okay. And you were the main

 191 23 marketing person for this version of the

 191 24 Combat Arms Earplugs and the sales to the

 191 25 military for six years, correct?

Re: [191:22-191:25]

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SUSTAINED

192:2 - 192:12 Douglas Moses 12.05.2019 

 192 2 THE WITNESS: I was -- yes, of

 192 3 all the Combat Arms versions. Again,

 192 4 I was focusing on 3 and 4 so much that

 192 5 I don't recall knowing this.

 192 6 QUESTIONS BY MR. CARTMELL:

 192 7 Q. Okay. And you were also

 192 8 reviewing multiple, actually, versions of

 192 9 inserts that had instructions for use during

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 192 10 that period of time, correct?

 192 11 A. I would have likely seen all

 192 12 those, yes.

192:13 - 192:17 Douglas Moses 12.05.2019 

 192 13 Q. Okay. But you don't recall

 192 14 thinking anything about or asking anybody

 192 15 what that meant?

 192 16 A. I didn't recall knowing it, so

 192 17 I don't recall asking someone about it.

Re: [192:13-192:17]

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Prejudice (403)

OVERRULED

192:18 - 193:18 Douglas Moses 12.05.2019 

 192 18 Q. Well, you would have seen it

 192 19 when you were reviewing the instructions,

 192 20 correct?

 192 21 A. Yeah. Possibly, yeah.

 192 22 Q. Is it your best guess that you

 192 23 probably just didn't pay much attention to

 192 24 it?

 192 25 A. I generally relied on the lab

 193 1 for most of this information. I would have

 193 2 looked at this and asked myself about the

 193 3 branding or does it have the right, you know,

 193 4 contact information so that people could call

 193 5 and place orders.

 193 6 I was thinking about this, I

 193 7 guess, from a marketing angle instead of kind

 193 8 of a lab perspective.

 193 9 Q. So you weren't really -- is it

 193 10 fair to say that you really weren't paying

 193 11 much attention to that fitting tip and what

 193 12 it meant to roll back the rings, as it

 193 13 states?

 193 14 A. I don't recall, but I likely

 193 15 would have read this for maybe typographical

 193 16 errors and really focused in on the things

 193 17 that as a marketer I would be most concerned

 193 18 about.

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193:24 - 194:10 Douglas Moses 12.05.2019 

 193 24 Q. Okay. Since you don't think

 193 25 you knew about it, I take it you didn't tell

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 194 1 any of your customers, meaning the military,

 194 2 about it, correct?

 194 3 A. I don't recall having a

 194 4 conversation with the military about rolling

 194 5 back the ear flanges or earplugs.

 194 6 Q. And that makes sense because

 194 7 you don't think you even knew about it,

 194 8 correct?

 194 9 A. I don't recall knowing about

 194 10 it.

194:20 - 195:14 Douglas Moses 12.05.2019 

 194 20 Q. So the first time you think

 194 21 that you really paid attention or knew about

 194 22 this fitting tip that showed up in the actual

 194 23 instructions for use in 2005 is when this

 194 24 litigation started, correct?

 194 25 MR. MORRISS: Object to form.

 195 1 THE WITNESS: Well, I mean, I

 195 2 feel like I was paying attention. I

 195 3 just don't recall that instruction

 195 4 until sometime later. And my

 195 5 recollection was it was sometime

 195 6 around one of the pieces of

 195 7 litigation.

 195 8 QUESTIONS BY MR. CARTMELL:

 195 9 Q. Okay. The Moldex litigation

 195 10 probably?

 195 11 A. Yes.

 195 12 Q. Okay. And that started when;

 195 13 do you recall approximately?

 195 14 A. 2012 or 2013.

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195:15 - 195:21 Douglas Moses 12.05.2019 

 195 15 Q. Okay. And your memory is that

 195 16 the first time you really knew about that

 195 17 rolling back the rings fitting tip is when

 195 18 you sat for your deposition in that case?

 195 19 MR. MORRISS: Object to form.

 195 20 THE WITNESS: That's my

 195 21 recollection.

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195:23 - 196:20 Douglas Moses 12.05.2019 

 195 23 Q. Okay. Well, now that you have

 195 24 read it and you know about it since then,

 195 25 what does that mean to you, that sentence

 196 1 where it says -- where it says, "Fitting is

 196 2 easier if the ear is pulled upward and

 196 3 outward during insertion."

 196 4 You know what that means,

 196 5 right? Like the picture, the guy is pulling

 196 6 the ear upward and outward, right?

 196 7 A. I do know what that is, yes.

 196 8 Q. Okay. But after that, where it

 196 9 says, "and is also improved if the sealing

 196 10 rings of the outward-directed plugs are

 196 11 rolled back upon themselves," what do you

 196 12 think that means?

 196 13 A. Well, I've had that

 196 14 explained -- or someone explained it to me in

 196 15 that process of me learning about it.

 196 16 Q. In the litigation?

 196 17 A. I believe so, yes.

 196 18 Q. Okay. But before that, you

 196 19 don't recall understanding what that meant?

 196 20 A. I don't recall.

Re: [195:23-196:20]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602)

OVERRULED

196:21 - 197:13 Douglas Moses 12.05.2019 

 196 21 Q. Okay. So you've had it

 196 22 explained now.

 196 23 What is that trying to convey?

 196 24 If you don't mind, I'm going to

 196 25 hand you the exemplar Combat Arms version 2

 197 1 earplug.

 197 2 What do you think that's trying

 197 3 to convey in the instruction?

 197 4 A. I read it this way, where you

 197 5 pull back the end that you're not putting in

 197 6 your ear.

 197 7 Q. Okay. And so if you're putting

 197 8 the yellow end, like you are doing -- you're

 197 9 saying you're doing, you pull back the ring

Re: [196:21-197:13]

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Prejudice (403)

OVERRULED

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Douglas Moses 12.05.2019 36

 197 10 on the green end, right? That's what you

 197 11 think?

 197 12 A. Yes. In the outward-directed

 197 13 plug, yes.

197:14 - 197:22 Douglas Moses 12.05.2019 

 197 14 Q. Okay. And do you believe that

 197 15 this fitting tip, instruction, means that the

 197 16 soldier is supposed to keep that flange

 197 17 pulled back during wearing, during the time

 197 18 he's wearing that, or just during insertion?

 197 19 MR. MORRISS: Object to form.

 197 20 QUESTIONS BY MR. CARTMELL:

 197 21 Q. Or do you know?

 197 22 A. I don't know.

Re: [197:14-197:22]

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Prejudice (403); 701

OVERRULED

197:23 - 198:13 Douglas Moses 12.05.2019 

 197 23 Q. Has anybody ever told you that

 197 24 one way or the other?

 197 25 A. No one has ever told me that

 198 1 one way or another. I just assumed that they

 198 2 would let it go back where it belongs when

 198 3 they're -- but that's an assumption.

 198 4 Q. Right.

 198 5 So what you believe, when you

 198 6 learned about this since the litigation, is

 198 7 that you figured that this fitting tip, the

 198 8 way it's stated, would mean you would pull

 198 9 back the green portion during insertion and

 198 10 then let it go back after it's inserted?

 198 11 A. Or leave it out. I don't know.

 198 12 Q. You just don't have any idea?

 198 13 A. Huh-uh.

Re: [197:23-198:13]

Def Obj Relevance (401, 402); 

Prejudice (403); 701

OVERRULED

198:14 - 198:23 Douglas Moses 12.05.2019 

 198 14 Q. But you said you assumed that

 198 15 it would let it go back?

 198 16 MR. MORRISS: Object to form.

 198 17 THE WITNESS: Yeah, I just

 198 18 looked at it here, so...

 198 19 QUESTIONS BY MR. CARTMELL:

 198 20 Q. Okay. And this is just a

Re: [198:14-198:23]

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Prejudice (403)

OVERRULED

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Douglas Moses 12.05.2019 37

 198 21 fitting tip.

 198 22 Do you know what that means?

 198 23 A. I don't.

198:24 - 199:12 Douglas Moses 12.05.2019 

 198 24 Q. It's not a requirement,

 198 25 according to this fitting tip, right, that

 199 1 the flanges be rolled. It just says it can

 199 2 improve fitting, right?

 199 3 A. I don't know what fitting tip

 199 4 means in the context of uses and

 199 5 instructions.

 199 6 Q. And it sounds like you never

 199 7 did as the marketing manager responsible for

 199 8 these sales to the military from 2006 to

 199 9 2012, correct?

 199 10 A. I didn't -- I didn't question

 199 11 that. I don't recall questioning that,

 199 12 anyway.

Re: [198:24-199:12]

Def Obj Relevance (401, 402); 

Foundation (602); Prejudice (403)

OVERRULED

200:13 - 200:22 Douglas Moses 12.05.2019 

 200 13 Q. So it's clear, sir, even though

 200 14 you were the brand manager and the marketing

 200 15 manager in charge of these Combat Arms

 200 16 version 2 earplugs, and you were a reviewer

 200 17 of these instructions for use in that

 200 18 capacity for six years, to summarize, it

 200 19 sounds like you don't think you knew about

 200 20 that fitting tip instruction before the

 200 21 litigation, fair?

 200 22 A. That's my recollection.

Re: [200:13-200:22]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

201:5 - 201:17 Douglas Moses 12.05.2019 

 201 5 Q. And you don't have any idea

 201 6 what the purpose was or why soldiers,

 201 7 according to these instructions for use, were

 201 8 being asked to roll back the flange, correct?

 201 9 A. At that time, no, I didn't

 201 10 know.

 201 11 Q. You didn't know until the

 201 12 litigation, correct?

 201 13 A. Yeah, that's my recollection.

Re: [201:5-201:17]

Def Obj Relevance (401, 402); 

Prejudice (403); Cumulative (403); 

Foundation (602)

OVERRULED

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Douglas Moses 12.05.2019 38

 201 14 Q. Is it something that you

 201 15 believe now that you needed to know at that

 201 16 time?

 201 17 A. I don't know.

203:6 - 203:19 Douglas Moses 12.05.2019 

 203 6 Q. Okay. Let me ask you: When

 203 7 you took over the product and when you were

 203 8 working on the product, did you believe at

 203 9 all times that the labeling and instructions

 203 10 adequately conveyed to soldiers how to get

 203 11 good fit with the product?

 203 12 MR. MORRISS: Object to form.

 203 13 THE WITNESS: I don't recall

 203 14 thinking about that. Again, I was

 203 15 kind of focused on 3 and 4, so I

 203 16 wasn't really thinking about 2.

 203 17 So to answer your question, I

 203 18 just don't -- I don't know.

 203 19 QUESTIONS BY MR. CARTMELL:

203:22 - 204:11 Douglas Moses 12.05.2019 

 203 22 Wouldn't you, as the marketing

 203 23 manager who was out there selling this

 203 24 product to the military and to thousands and

 203 25 thousands of soldiers around the world,

 204 1 wouldn't you have wanted your instructions

 204 2 that you were giving these soldiers to

 204 3 accurately and adequately explain to them how

 204 4 the product should be inserted and fit

 204 5 properly?

 204 6 MR. MORRISS: Object to form.

 204 7 THE WITNESS: I don't recall

 204 8 knowing that, but I would have --

 204 9 would probably assume that someone had

 204 10 given that thought, and they would

 204 11 have been adequate.

Re: [203:6-204:11]

Pltf Obj beyond the scope of 

clarification

OVERRULED

204:13 - 205:2 Douglas Moses 12.05.2019 

 204 13 Q. But my question is, you, as the

 204 14 marketing manager who was selling these, and

 204 15 your job was to sell as many as possible, you

Re: [204:13-205:2]

Def Obj Relevance (401, 402); 

Prejudice (403); Argumentative; 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 91 of 169
Douglas Moses 12.05.2019 39

 204 16 would have wanted instructions, right, that

 204 17 adequately and appropriately and completely

 204 18 told the soldiers how to get these inserted

 204 19 and get the best fit, correct?

 204 20 MR. MORRISS: Object to form.

 204 21 QUESTIONS BY MR. CARTMELL:

 204 22 Q. You would have wanted that,

 204 23 wouldn't you?

 204 24 A. I would have wanted adequate

 204 25 instructions, and I would have assumed that

 205 1 prior to me taking that, it would have been

 205 2 properly vetted.

Compound (611, 403); Cumulative 

(403)

205:3 - 205:7 Douglas Moses 12.05.2019 

 205 3 Q. Okay. You mean by the others

 205 4 who wrote those instructions, correct?

 205 5 A. Yes, and the team that was in

 205 6 place before I took over the business in the

 205 7 fall of 2006.

208:9 - 208:11 Douglas Moses 12.05.2019 

 208 9 Your company tests these

 208 10 earplugs, correct?

 208 11 A. In certain ways, yes.

208:12 - 208:18 Douglas Moses 12.05.2019 

 208 12 Q. And they test them to try to

 208 13 see how they can get the best fit, correct?

 208 14 MR. MORRISS: Object to form.

 208 15 THE WITNESS: Best fit? Yeah,

 208 16 I think -- I think we tried to get the

 208 17 best fit. We tried to do good

 208 18 analytical work on the fit.

Re: [208:12-208:18]

Def Obj 701; Foundation (602)

OVERRULED

208:21 - 208:25 Douglas Moses 12.05.2019 

 208 21 You have experts at your

 208 22 company who have been involved in trying to

 208 23 determine the best way to fit these to get

 208 24 the most protection, right?

 208 25 A. I think that's fair.

210:17 - 211:8 Douglas Moses 12.05.2019 

 210 17 Q. Okay. Now, you talked earlier

 210 18 about being, from time to time, on premises

Re: [210:17-211:8]

Def Obj Cumulative (403); Prejudice 

(403); Relevance (401, 402)

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Douglas Moses 12.05.2019 40

 210 19 with soldiers, meeting with audiologists and

 210 20 things like that, correct?

 210 21 A. Yes.

 210 22 Q. Is it fair to say, and I've

 210 23 looked at your prior testimony, that you

 210 24 don't recall ever seeing any soldiers wearing

 210 25 the Combat Farm -- Combat Arms version 2

 211 1 earplug with the rings folded back, correct?

 211 2 A. I don't recall that.

 211 3 Q. Okay. And, you know, you

 211 4 didn't, it sounds like, even have an

 211 5 awareness to know if the rings should or

 211 6 should not be folded back during 2006 to

 211 7 2012, correct?

 211 8 A. I don't recall knowing.

211:9 - 211:22 Douglas Moses 12.05.2019 

 211 9 Q. Okay. And so you couldn't tell

 211 10 soldiers when you would see them and you

 211 11 would talk about the Combat Arms version 2

 211 12 earplugs, you couldn't say to them, for

 211 13 instance, "Hey, make sure you fold back those

 211 14 rings or those flanges when you insert the

 211 15 tip," for example, correct?

 211 16 MR. MORRISS: Object to form.

 211 17 THE WITNESS: I don't recall

 211 18 having conversations about -- too many

 211 19 conversations about Combat Arms 2

 211 20 anyway, because, again, I was focused

 211 21 on 3 and 4. I don't recall having one

 211 22 about that.

Re: [211:9-211:22]

Pltf Obj beyond the scope of 

clarification and the answer is 

nonresponsive too

OVERRULED

215:11 - 215:22 Douglas Moses 12.05.2019 

 215 11 Q. Mr. Moses, if we look further

 215 12 down on this page of the insert for the

 215 13 Combat Arms version 2 earplugs, you see where

 215 14 it says "Attenuation Data"?

 215 15 A. I do.

 215 16 Q. Okay. Now, obviously you're

 215 17 familiar with this chart for the Combat Arms

 215 18 version 2, being the marketing manager for

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 93 of 169
Douglas Moses 12.05.2019 41

 215 19 that product, correct?

 215 20 A. I have seen these types of

 215 21 charts before. I don't develop this type of

 215 22 information, no.

216:6 - 216:23 Douglas Moses 12.05.2019 

 216 6 Q. Okay. But you know, I take it,

 216 7 that this data comes from testing on the

 216 8 Combat Arms version 2 earplug?

 216 9 A. If it was on this insert and

 216 10 this insert is for the Combat Arms version 2,

 216 11 this would be the test data.

 216 12 Q. Right.

 216 13 The only point I was making --

 216 14 I'm not trying to be controversial -- is that

 216 15 you knew when you started, and during 2006 to

 216 16 2012 as the lead marketing man for the Combat

 216 17 Arms version 2, that the product would be

 216 18 tested in the laboratory, either at Aearo in

 216 19 Indiana or an outside laboratory, to get

 216 20 attenuation data like this?

 216 21 A. I would have known that if an

 216 22 NRR was established, that some attenuation

 216 23 had been done.

Re: [216:6-216:23]

Def Obj Foundation (602)

OVERRULED

217:17 - 218:8 Douglas Moses 12.05.2019 

 217 17 Q. Okay. And if you look at the

 217 18 yellow end data, there is an NRR at the end.

 217 19 There's a -- you'll see NRR right there,

 217 20 yep -- and it says zero, right?

 217 21 A. I see that.

 217 22 Q. And so what that means, we

 217 23 talked about briefly, is that there was

 217 24 testing done on the yellow end, and after the

 217 25 testing was done of the individuals wearing

 218 1 actually the yellow end, there was a noise

 218 2 reduction rating given to the yellow end of

 218 3 zero, right?

 218 4 A. Yes.

 218 5 Q. And then below that there is

 218 6 testing on the green end, and there's data

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 94 of 169
Douglas Moses 12.05.2019 42

 218 7 there, and the NRR for that is 22, right?

 218 8 A. Yes, I see it right here.

218:9 - 218:13 Douglas Moses 12.05.2019 

 218 9 Q. Okay. And so that means that

 218 10 they had testing where individuals -- I think

 218 11 it's usually ten individuals, isn't it, when

 218 12 they test them?

 218 13 A. I believe so. I believe so.

Re: [218:9-218:13]

Def Obj Foundation (602); 701

OVERRULED

218:14 - 218:23 Douglas Moses 12.05.2019 

 218 14 Q. So what they would do is they'd

 218 15 have typically ten individuals who they would

 218 16 be fitted with, for example, here, the green

 218 17 end of the plug, the Combat Arms plug, and

 218 18 then they would get data from each of them

 218 19 and that would be computed somehow, right,

 218 20 and would become the NRR of 22.

 218 21 Fair enough?

 218 22 A. I don't know how these

 218 23 calculations are made.

Re: [218:14-218:23]

Pltf Obj beyond the scope of 

clarification

OVERRULED

219:8 - 219:17 Douglas Moses 12.05.2019 

 219 8 Q. All right. So we got a zero

 219 9 and a 22. Let me ask you, from these tests

 219 10 on the dual-ended version -- and you're

 219 11 putting this chart -- or your company is

 219 12 putting these charts and the ratings, the

 219 13 noise reduction ratings, in the insert.

 219 14 That was something that you

 219 15 also oftentimes would include in marketing

 219 16 materials as well, correct?

 219 17 A. Sometimes.

219:18 - 220:15 Douglas Moses 12.05.2019 

 219 18 Q. Okay. And when you would

 219 19 include the rating of 22 for the green end

 219 20 and zero for the yellow end, those were

 219 21 marketing claims when you would put them in

 219 22 your marketing brochures, for instance,

 219 23 right?

 219 24 MR. MORRISS: Object to form.

 219 25 THE WITNESS: I would call them

Re: [219:18-220:15]

Def Obj Relevance (401, 402); Vague 

(611, 403); Assumes (611, 403)

OVERRULED

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Douglas Moses 12.05.2019 43

 220 1 a claim. I don't know what the

 220 2 difference between a marketing claim

 220 3 and a claim is, to be honest with you.

 220 4 QUESTIONS BY MR. CARTMELL:

 220 5 Q. Yeah. Okay. But it's a claim

 220 6 that your company is making. In other words,

 220 7 your company is sending out, for example, a

 220 8 brochure, and you're claiming in there that

 220 9 these products, for example, the green end,

 220 10 would give you a noise reduction rating of 22

 220 11 and that the yellow end would give you a

 220 12 noise reduction rating of zero.

 220 13 MR. MORRISS: Object to form.

 220 14 THE WITNESS: I would consider

 220 15 that a claim.

220:16 - 220:24 Douglas Moses 12.05.2019 

 220 16 QUESTIONS BY MR. CARTMELL:

 220 17 Q. Okay. And you also, I know

 220 18 from your prior testimony, would say that

 220 19 those noise reduction ratings are safety

 220 20 claims, correct?

 220 21 A. Yeah, again, I don't know what

 220 22 the definition of that, but I would see these

 220 23 those as a safety -- you know, some kind of

 220 24 number that is a safety claim.

Re: [220:16-220:24]

Def Obj 701

OVERRULED

221:1 - 221:5 Douglas Moses 12.05.2019 

 221 1 A safety claim because you're

 221 2 telling soldiers, or whoever the user is,

 221 3 that there's a certain amount of protection,

 221 4 and that helps -- or that goes to safety,

 221 5 correct?

221:7 - 221:8 Douglas Moses 12.05.2019 

 221 7 THE WITNESS: I'm telling them

 221 8 that these are the numbers.

221:11 - 221:13 Douglas Moses 12.05.2019 

 221 11 And that's a safety claim

 221 12 because you're telling them that these are

 221 13 the numbers as far as protection.

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 96 of 169
Douglas Moses 12.05.2019 44

221:15 - 221:17 Douglas Moses 12.05.2019 

 221 15 THE WITNESS: These are the

 221 16 numbers that were generated from the

 221 17 lab, yes.

221:19 - 221:23 Douglas Moses 12.05.2019 

 221 19 Q. So why are you saying it's a

 221 20 safety claim?

 221 21 A. I guess it is -- it goes to how

 221 22 safe the product is, I guess, if you wear it

 221 23 properly, fit properly and train properly.

Re: [221:19-221:23]

Def Obj 701; Foundation (602)

OVERRULED

221:25 - 222:25 Douglas Moses 12.05.2019 

 221 25 If you wear it properly, fit

 222 1 properly, train properly, you should get the

 222 2 protection of a 22 on the green side,

 222 3 correct?

 222 4 MR. MORRISS: Object to form.

 222 5 THE WITNESS: Again, I don't --

 222 6 I don't know a lot about the NRR piece

 222 7 of it. That's really somebody from

 222 8 the lab, but I really kind of focus in

 222 9 on the overall number.

 222 10 QUESTIONS BY MR. CARTMELL:

 222 11 Q. Right.

 222 12 A. Yeah.

 222 13 Q. Which is what?

 222 14 A. On this one is 22.

 222 15 Q. Right.

 222 16 So if you fit properly and you

 222 17 are trained properly, then you should get a

 222 18 22 in protection, and that's a safety issue,

 222 19 fair?

 222 20 MR. MORRISS: Object to form.

 222 21 THE WITNESS: In this lab

 222 22 study, I understand that they received

 222 23 a 22 from however they derived that.

 222 24 I don't know about an individual

 222 25 person for that.

Re: [221:25-222:25]

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clarification

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Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 97 of 169
Douglas Moses 12.05.2019 45

224:20 - 224:25 Douglas Moses 12.05.2019 

 224 20 The testing to get these NRRs

 224 21 on the version 2 of Combat Arms, did you ever

 224 22 go and ask Mr. Berger or ask Mr. Kieper or

 224 23 anybody else for that data so that you could

 224 24 review it yourself?

 224 25 A. I don't recall doing that.

Re: [224:20-224:25]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

224:26 - 225:3 Douglas Moses 12.05.2019 

 225 1 (Moses Exhibit 18 marked for

 225 2 identification.)

 225 3 QUESTIONS BY MR. CARTMELL:

225:4 - 225:13 Douglas Moses 12.05.2019 

 225 4 Q. Okay. I'm going to hand you

 225 5 what's been marked as Exhibit 18.

 225 6 Mr. Moses, Exhibit 18 is a

 225 7 document that was produced from the files of

 225 8 3M in this litigation, and it's titled "How

 225 9 Folding the Flanges Back Affects REAT Results

 225 10 of the UltraFit Earplug End of the Combat

 225 11 Arms plug."

 225 12 Do you see that?

 225 13 A. I see the title, yes.

226:1 - 226:10 Douglas Moses 12.05.2019 

 226 1 A. I understand it to be, yes.

 226 2 Q. Okay. This was a report that

 226 3 was authored by R.W. Kieper and E.H. Berger;

 226 4 is that right?

 226 5 A. Yes.

 226 6 Q. And if you go down, the date of

 226 7 this report is in July -- or July 10th of

 226 8 2000.

 226 9 Do you see that?

 226 10 A. I do.

226:11 - 226:16 Douglas Moses 12.05.2019 

 226 11 Q. Okay. Now, this is obviously

 226 12 five and a half years or a little -- actually

 226 13 five years, a little less than that, from the

 226 14 time that you started working at Aearo,

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 98 of 169
Douglas Moses 12.05.2019 46

 226 15 right?

 226 16 A. Yes.

226:17 - 227:5 Douglas Moses 12.05.2019 

 226 17 Q. Okay. I know now that you have

 226 18 seen this, correct?

 226 19 A. May I look at it?

 226 20 Q. Yes.

 226 21 A. All right. Just a moment.

 226 22 I believe I've seen this now.

 226 23 Q. Okay. And I want to make it

 226 24 very clear to the jury, though, that when you

 226 25 were working for Aearo, and then once 3M

 227 1 purchased Aearo, while you were working at 3M

 227 2 from 2005 up until 2012, during the time you

 227 3 were responsible for the Combat Arms

 227 4 version 2 product, you had never seen this?

 227 5 A. I don't recall seeing it.

Re: [226:17-227:5]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

228:22 - 229:6 Douglas Moses 12.05.2019 

 228 22 Q. And was your experience -- or

 228 23 has your experience been, during the time

 228 24 that you've worked for Aearo and then 3M,

 228 25 that Mr. Berger and Mr. Kieper worked in the

 229 1 lab and would oftentimes do the testing, the

 229 2 REAT testing or the NRR testing, on the

 229 3 products, the hearing products?

 229 4 A. I knew Ron Kieper to do a lot

 229 5 of the testing, and Elliott was, I believe,

 229 6 his supervisor.

Re: [228:22-229:6]

Def Obj Relevance (401, 402); 

Foundation (602); Prejudice (403)

OVERRULED

229:19 - 229:22 Douglas Moses 12.05.2019 

 229 19 Q. Okay. You know the green side

 229 20 was tested, correct?

 229 21 A. It talks about -- I assume

 229 22 that, yes.

Re: [229:19-229:22]

Def Obj Foundation (602)

OVERRULED

230:20 - 231:3 Douglas Moses 12.05.2019 

 230 20 We've established, have we not,

 230 21 that you don't recall ever receiving a copy

 230 22 of this while you were working at 3M until

 230 23 the litigation in this case, correct?

 230 24 A. I don't recall seeing this.

Re: [230:20-231:3]

Def Obj Relevance (401, 402); 

Prejudice (403); Cumulative (403)

OVERRULED

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Douglas Moses 12.05.2019 47

 230 25 Q. Okay. And you don't recall any

 231 1 conversations with anyone else about this

 231 2 report prior to the litigation, correct?

 231 3 A. I don't believe so.

234:8 - 234:22 Douglas Moses 12.05.2019 

 234 8 Q. Okay. So I got to go back and

 234 9 ask you, because I just want to make sure the

 234 10 jury understands and you understand.

 234 11 What happened was, Mr. Kieper

 234 12 started the test on the green end of the

 234 13 plug, in fact he fitted eight different

 234 14 people with the green end of the plug, and

 234 15 then he did some testing. And because the

 234 16 results were so variable and because it

 234 17 looked like the NRR was going to be so low,

 234 18 Mr. Kieper stopped that test, according to

 234 19 this, correct?

 234 20 MR. MORRISS: Object to form.

 234 21 THE WITNESS: That's what's

 234 22 written here.

Re: [234:8-234:22]

Def Obj Foundation (602); Prejudice 

(403)

SUSTAINED

234:23 - 235:16 Douglas Moses 12.05.2019 

 234 23 QUESTIONS BY MR. CARTMELL:

 234 24 Q. Okay. Okay. And so let's

 234 25 look, though, at what he found when he was

 235 1 doing that test on the green end. And I want

 235 2 to go to the top under the Introduction.

 235 3 At the top under the

 235 4 Introduction it says, "The Combat Arms

 235 5 Earplug was shortened at the request of the

 235 6 Army so that it would fit into a carrying

 235 7 case. Because of this, the plug is shorter

 235 8 than any other UltraFit plug design."

 235 9 And I want to focus on this

 235 10 next sentence. Mr. Kieper found and stated,

 235 11 "The purpose of this report is to document

 235 12 that the current length of the UltraFit

 235 13 earplug end of the Combat Arms plug is too

 235 14 short for proper insertion."

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 100 of 169
Douglas Moses 12.05.2019 48

 235 15 Do you see that?

 235 16 A. I see those words.

235:17 - 236:6 Douglas Moses 12.05.2019 

 235 17 Q. "And how changing the fitting

 235 18 technique affected the results of the

 235 19 real-ear tests of this plug."

 235 20 My question for you is: Did

 235 21 anyone ever tell you, up until this

 235 22 litigation, while you were working as the

 235 23 main marketing man for the company of the

 235 24 Combat Arms version 2, that in this product,

 235 25 the length of the UltraFit earplug end of the

 236 1 Combat Arms plug is too short for proper

 236 2 insertion?

 236 3 MR. MORRISS: Object to form.

 236 4 THE WITNESS: I was not aware

 236 5 of that, and I don't recall being told

 236 6 that.

Re: [235:17-236:6]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602)

OVERRULED

236:8 - 236:10 Douglas Moses 12.05.2019 

 236 8 Q. Okay. The first time that you

 236 9 ever saw that was in the litigation, correct?

 236 10 A. That's my recollection.

236:11 - 236:21 Douglas Moses 12.05.2019 

 236 11 Q. Okay. Let me ask you: As the

 236 12 marketing leader from the company for six

 236 13 years who was trying to sell as many of these

 236 14 Combat Arms Earplugs as possible to the

 236 15 military, would you have liked to have known

 236 16 that when you were working as the main

 236 17 manager and -- marketing manager?

 236 18 MR. MORRISS: Object to form.

 236 19 THE WITNESS: I don't know. I

 236 20 was so highly focused on 3 and 4 that

 236 21 I don't know.

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402)

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239:5 - 239:10 Douglas Moses 12.05.2019 

 239 5 THE WITNESS: I don't -- I

 239 6 don't have an opinion on whether or

 239 7 not it's short or too short or too

 239 8 long, but a hearing protection device

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Douglas Moses 12.05.2019 49

 239 9 should be able to fit a certain pop --

 239 10 a certain number of the populations.

239:11 - 239:24 Douglas Moses 12.05.2019 

 239 11 QUESTIONS BY MR. CARTMELL:

 239 12 Q. Right.

 239 13 And if the stem is too short to

 239 14 be properly inserted, you know that can be a

 239 15 safety issue. That's my question.

 239 16 You know that, don't you?

 239 17 MR. MORRISS: Object to form.

 239 18 THE WITNESS: Well, I don't

 239 19 want to -- I don't know the comment on

 239 20 the safety piece of it. I think that

 239 21 an earplug should be able to be fit

 239 22 properly on a large enough segment of

 239 23 the population that it is a good

 239 24 product.

Re: [239:11-239:24]

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Prejudice (403); 701; Foundation (602)

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240:5 - 241:2 Douglas Moses 12.05.2019 

 240 5 Don't you know from your

 240 6 experience that if a soldier has an earplug

 240 7 in and it's not inserted properly and it

 240 8 can't be fitted properly, that it may not

 240 9 work and that soldier may not be protected

 240 10 from noise?

 240 11 Don't you know that?

 240 12 A. I know that an earplug must be

 240 13 fit and trained properly for it to meet some

 240 14 of the claims that we've made.

 240 15 Q. Okay. But I'm asking you a

 240 16 question about don't you know that if it's

 240 17 not fit properly and it can't be fit properly

 240 18 and a soldier's wearing it, that it might not

 240 19 work and it might be a safety issue for the

 240 20 soldier?

 240 21 Do you know that?

 240 22 A. If it didn't work -- if it

 240 23 didn't fit properly into that particular

 240 24 soldier's ear and they were not getting the

 240 25 attenuation that they needed for their

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Douglas Moses 12.05.2019 50

 241 1 assignment, then they should find another

 241 2 product to wear.

241:3 - 241:11 Douglas Moses 12.05.2019 

 241 3 Q. I'm asking you if it can be a

 241 4 safety issue.

 241 5 Can you answer that question?

 241 6 A. I think they would -- they

 241 7 would not be getting the hearing protection

 241 8 that they need.

 241 9 Q. And would you agree with me

 241 10 that that could be a safety issue?

 241 11 A. It could be a safety issue.

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241:12 - 241:25 Douglas Moses 12.05.2019 

 241 12 Q. Okay. And so isn't that

 241 13 something that if you knew or the people in

 241 14 your laboratory knew from testing of the

 241 15 product, that when they tried to insert it,

 241 16 the stem was too short and they couldn't

 241 17 properly insert it in some people's ears,

 241 18 isn't that something that you would have

 241 19 wanted to know?

 241 20 MR. MORRISS: Object to form.

 241 21 THE WITNESS: Again, I don't

 241 22 know how to put all of this in

 241 23 context.

 241 24 Looking back on it today, I

 241 25 would have liked to have known.

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244:20 - 245:10 Douglas Moses 12.05.2019 

 244 20 Q. Okay. It then states,

 244 21 "Additionally, the geometry of the ear canal

 244 22 opening sometimes prevented the deep plug

 244 23 insertion required for maximum attenuation

 244 24 values. When the solid plug was fitted

 244 25 during the first test, 015, the basal edge of

 245 1 the third flange of the yellow,

 245 2 level-dependent plug sometimes pressed

 245 3 against the subject's ear canal opening and

 245 4 folded up. When the inward pressure on the

 245 5 plug was released, the yellow plug's flanges

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Douglas Moses 12.05.2019 51

 245 6 tended to return to their original shape, and

 245 7 this sometimes loosened the plug, often

 245 8 imperceptibly to the subject."

 245 9 Do you see that?

 245 10 A. I see those words.

245:11 - 245:22 Douglas Moses 12.05.2019 

 245 11 Q. Okay. So let me ask you this:

 245 12 Were you ever told that during a test on the

 245 13 Combat earplugs that they're -- when they

 245 14 were inserted, the opposite end -- if the

 245 15 green end was in the ear, the opposite ear

 245 16 flanges would sometimes make contact with the

 245 17 individual's ear and could actually press

 245 18 against the ear and make the plug loosened?

 245 19 Were you told anything like

 245 20 that ever?

 245 21 A. I don't recall knowing that or

 245 22 being told that.

Re: [245:11-245:22]

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Prejudice (403)

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245:23 - 246:1 Douglas Moses 12.05.2019 

 245 23 Q. Don't you think that would be

 245 24 something you would likely remember if you

 245 25 were told that?

 246 1 MR. MORRISS: Object to form.

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246:2 - 246:2 Douglas Moses 12.05.2019 

 246 2 THE WITNESS: I don't know.

246:4 - 246:17 Douglas Moses 12.05.2019 

 246 4 Q. All right. Were you ever told

 246 5 that with this Combat Arms version 2 earplug,

 246 6 during the testing of that by the company in

 246 7 their own lab, with their experienced fitter,

 246 8 that there were times that this plug, in the

 246 9 people tested, would become loosened and the

 246 10 individual wouldn't even know it, or that it

 246 11 was imperceptible to that subject, that test

 246 12 subject?

 246 13 Were you ever told anything

 246 14 like that?

 246 15 MR. MORRISS: Object to form.

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 246 16 THE WITNESS: I don't recall

 246 17 being told that.

246:18 - 246:22 Douglas Moses 12.05.2019 

 246 18 QUESTIONS BY MR. CARTMELL:

 246 19 Q. Okay. In retrospect, would you

 246 20 have liked to have been told these things?

 246 21 A. I think I would like to know

 246 22 more about the product, sure.

Re: [246:18-246:22]

Def Obj Relevance (401, 402); 

Prejudice (403)

246:23 - 247:12 Douglas Moses 12.05.2019 

 246 23 Q. Now, it states, "For test

 246 24 213" -- the next paragraph.

 246 25 "For 213017, the yellow flanges

 247 1 of the level-dependent end of the plug were

 247 2 folded back."

 247 3 So to make it clear for the

 247 4 jury, what happened was they did 015 test --

 247 5 I'm shortening the numbers -- they did the

 247 6 015 test, and they found those issues with

 247 7 the difficulty fitting it and that it might

 247 8 become loosened, so they started a new test,

 247 9 correct?

 247 10 MR. MORRISS: Object to form.

 247 11 THE WITNESS: It appears so,

 247 12 yes.

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247:13 - 247:23 Douglas Moses 12.05.2019 

 247 13 QUESTIONS BY MR. CARTMELL:

 247 14 Q. Okay. They stopped after eight

 247 15 people on the first test, and then they would

 247 16 start a new test, correct?

 247 17 A. That's my understanding as I

 247 18 read this.

 247 19 Q. Okay. And when they started

 247 20 the new test, this time they folded back the

 247 21 rings on the yellow end, right, according to

 247 22 this?

 247 23 A. Yes, uh-huh.

Re: [247:13-247:23]

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(403)

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249:2 - 249:22 Douglas Moses 12.05.2019 

 249 2 Q. Okay. All right. Now, it then

 249 3 says under Results, it says that when they

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 249 4 did the first test, the NRR after eight

 249 5 people was 11, right?

 249 6 A. Yes, I see that.

 249 7 Q. And then if you see at the

 249 8 bottom, it says when they redid the test and

 249 9 they did it a different way, with the rings

 249 10 or the flanges folded back, they got a 22,

 249 11 double that, correct?

 249 12 A. I see that, yes.

 249 13 Q. Okay. You didn't know that

 249 14 this even happened, did you?

 249 15 A. I don't recall knowing.

 249 16 Q. Okay. Nobody told you that the

 249 17 first test, when they did it according to the

 249 18 instructions at the time, gave an NRR of

 249 19 one-half of what is listed in your marketing

 249 20 materials.

 249 21 Nobody told you that, correct?

 249 22 A. I don't recall knowing that.

249:23 - 250:2 Douglas Moses 12.05.2019 

 249 23 Q. Okay. I've read your prior

 249 24 testimony, and in 2015 you testified that you

 249 25 just didn't know whether or not soldiers knew

 250 1 to pull the flanges back when wearing these

 250 2 earplugs.

250:5 - 250:13 Douglas Moses 12.05.2019 

 250 5 Q. Correct?

 250 6 A. Yeah, I don't know what the

 250 7 soldiers knew.

 250 8 Q. Now, the company Aearo has

 250 9 always used for this green end, in their

 250 10 marketing materials and in their labeling

 250 11 materials and their instructions for use,

 250 12 they tell soldiers that the NRR is 22,

 250 13 correct?

250:16 - 250:17 Douglas Moses 12.05.2019 

 250 16 I'm sorry, can you restate the

 250 17 question, please?

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Douglas Moses 12.05.2019 54

250:19 - 251:8 Douglas Moses 12.05.2019 

 250 19 Q. Yeah -- no, I was just

 250 20 referring to they did the second test, and

 250 21 in -- when they did their labeling for the

 250 22 product, the Combat Arms version 2, they used

 250 23 the 22 from the second test as the NRR,

 250 24 correct?

 250 25 A. I believe so, yes.

 251 1 Q. And that's always been the

 251 2 case, as long as it was on the market, until

 251 3 2015, I believe, fair?

 251 4 A. I believe so, yes.

 251 5 Q. Okay. But the company never

 251 6 told soldiers or the military or anyone else

 251 7 about the first test and the fact that the

 251 8 NRR was only 11 through eight individuals?

251:10 - 251:14 Douglas Moses 12.05.2019 

 251 10 THE WITNESS: I don't know.

 251 11 QUESTIONS BY MR. CARTMELL:

 251 12 Q. Well, you've never seen

 251 13 anything or heard that they told anybody

 251 14 about that, correct?

251:16 - 251:17 Douglas Moses 12.05.2019 

 251 16 THE WITNESS: I don't recall,

 251 17 no.

251:23 - 252:6 Douglas Moses 12.05.2019 

 251 23 Q. We've talked previously about

 251 24 the fact that your job duties and

 251 25 responsibilities included reviewing and, as a

 252 1 team member, approving inserts and brochures

 252 2 and catalogs and other marketing materials

 252 3 for the company, correct?

 252 4 MR. MORRISS: Object to form.

 252 5 THE WITNESS: Reviewing them,

 252 6 yes, uh-huh.

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252:7 - 252:7 Douglas Moses 12.05.2019 

 252 7 QUESTIONS BY MR. CARTMELL:

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Douglas Moses 12.05.2019 55

252:8 - 252:23 Douglas Moses 12.05.2019 

 252 8 Q. Okay. And had you known about

 252 9 this test and the fact that it was required

 252 10 to pull back the flange on the opposing side

 252 11 when the plug was put in somebody's ears,

 252 12 would you have told people in the materials

 252 13 or made sure that the company told people in

 252 14 the materials that that was the case and that

 252 15 doing that was required?

 252 16 MR. MORRISS: Object to form.

 252 17 QUESTIONS BY MR. CARTMELL:

 252 18 Q. Or do you know?

 252 19 A. I don't know that I would have

 252 20 used words like "it's required."

 252 21 It would have possibly prompted

 252 22 a conversation with someone in the lab had I

 252 23 known more about it.

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403); Prejudice (403)

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253:7 - 253:21 Douglas Moses 12.05.2019 

 253 7 Q. And had you known that there

 253 8 was a situation where the testers found that

 253 9 when inserting the green end of the Combat

 253 10 Arms version 2 plug, if somebody had medium

 253 11 or larger ear canals, it was difficult to fit

 253 12 that person, would you possibly have put that

 253 13 in the materials or actually recommended,

 253 14 potentially, to put that information in the

 253 15 materials that you approved or that you

 253 16 reviewed?

 253 17 MR. MORRISS: Object to form.

 253 18 THE WITNESS: I would have had

 253 19 a conversation with the group of

 253 20 people to find out what the relevance

 253 21 of that is, likely.

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253:23 - 254:18 Douglas Moses 12.05.2019 

 253 23 Q. Okay. And if you had known

 253 24 that if the flange or the rings of the plug

 253 25 were not rolled back or pulled back upon

 254 1 insertion or while wearing the plug, there

 254 2 was a possibility that the opposing flange

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Douglas Moses 12.05.2019 56

 254 3 would push on the ear and loosen the plug and

 254 4 the soldier may not even know about it, would

 254 5 you have talked to somebody and possibly

 254 6 recommended to the company that they include

 254 7 that information in their inserts or their

 254 8 catalogs or their brochures or their

 254 9 materials --

 254 10 MR. MORRISS: Objection.

 254 11 QUESTIONS BY MR. CARTMELL:

 254 12 Q. -- that they were providing the

 254 13 military?

 254 14 MR. MORRISS: Object to form.

 254 15 THE WITNESS: I don't know for

 254 16 sure, but I would have likely had a

 254 17 conversation with a group of our team

 254 18 members.

254:19 - 254:22 Douglas Moses 12.05.2019 

 254 19 QUESTIONS BY MR. CARTMELL:

 254 20 Q. You definitely would have

 254 21 wanted to look into it, wouldn't you?

 254 22 A. I would have a conversation.

261:24 - 261:25 Douglas Moses 12.05.2019 

 261 24 Q. Okay. I want to refer you back

 261 25 to Exhibit 12, Mr. Moses.

262:24 - 263:8 Douglas Moses 12.05.2019 

 262 24 Q. Well, go under Instructions for

 262 25 Use. It states, "Grasp the earplug by the

 263 1 stem and insert into ear canal. Adjust plug

 263 2 for test {sic} sealing performance."

 263 3 Do you see that?

 263 4 A. Yes.

 263 5 Q. That's trying to tell the

 263 6 individual how to get the plug inserted?

 263 7 A. Yes. Oh, I'm sorry, that was a

 263 8 question? Yes.

263:9 - 263:16 Douglas Moses 12.05.2019 

 263 9 Q. Okay. And then it has the same

 263 10 fitting tip that we saw was there in 2006,

 263 11 July, around the time that you started,

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 263 12 correct?

 263 13 MR. MORRISS: Object to form.

 263 14 THE WITNESS: Similar, yeah. I

 263 15 would have to compare them, but it

 263 16 looks about the same.

263:17 - 264:10 Douglas Moses 12.05.2019 

 263 17 QUESTIONS BY MR. CARTMELL:

 263 18 Q. Okay. This fitting tip here,

 263 19 if you go -- go ahead and highlight "fitting

 263 20 is easier if it's pulled upward and outward,"

 263 21 and then "if the sealing rings of the

 263 22 outward-directed plug are rolled back upon

 263 23 themselves."

 263 24 It then says, "Some individuals

 263 25 with smaller ear canals may experience

 264 1 discomfort with the dual-ended Combat Arms

 264 2 Earplug due to their restricted canal

 264 3 opening."

 264 4 Do you see that?

 264 5 A. I do.

 264 6 Q. So this fitting tip in 2010 is

 264 7 actually calling out individuals with small

 264 8 ear canals and saying it might be

 264 9 uncomfortable, right?

 264 10 A. Yes, discomfort, uh-huh.

264:11 - 264:20 Douglas Moses 12.05.2019 

 264 11 Q. But it doesn't say anything

 264 12 about how there's difficulty fitting certain

 264 13 individuals with medium or larger ear canals

 264 14 like Mr. Kieper found when he was testing the

 264 15 dual-ended product in 2000, does it?

 264 16 MR. MORRISS: Object to form.

 264 17 THE WITNESS: It doesn't talk

 264 18 about medium and large. It does talk

 264 19 about the -- rolling back the flanges

 264 20 or -- that's it.

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Def Obj Argumentative (611, 403); 

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264:21 - 265:23 Douglas Moses 12.05.2019 

 264 21 QUESTIONS BY MR. CARTMELL:

 264 22 Q. Okay. But as you said, it's

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 264 23 unclear -- early, as you -- strike that.

 264 24 As you said earlier, sir, that

 264 25 fitting tip, it's unclear to even you whether

 265 1 or not that means that the flange should be

 265 2 rolled back just during insertion or if it

 265 3 should remain worn back later on as the

 265 4 soldiers are wearing, actually, the product,

 265 5 correct?

 265 6 A. I don't know.

 265 7 Q. You can't tell from that

 265 8 fitting tip, can you?

 265 9 A. I don't believe so. I can

 265 10 tell, but, again, I don't have the proper

 265 11 context for this either.

 265 12 Q. Right.

 265 13 You can't tell because it's

 265 14 unclear, right?

 265 15 A. It says what it says here.

 265 16 Q. Right.

 265 17 But you, the marketing manager

 265 18 for six years in charge of selling these to

 265 19 the military, when I asked you, didn't even

 265 20 know if meant to roll them back permanently

 265 21 or that you could roll them back in place

 265 22 after you inserted them, correct?

 265 23 A. I don't know.

265:24 - 266:13 Douglas Moses 12.05.2019 

 265 24 Q. And let me ask you this: If

 265 25 you look on the first page of this 2010

 266 1 insert sell sheet, or insert, it's hard to

 266 2 see on this, but you see there's two ears

 266 3 there?

 266 4 Let's get a close-up of those

 266 5 two ears.

 266 6 There's two ears, and it shows

 266 7 the Combat Arms Earplug sticking out of those

 266 8 ears, right?

 266 9 A. I see two ears and two plugs

 266 10 inside, yeah.

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 266 11 Q. It doesn't look like the rings

 266 12 are folded back, right?

 266 13 A. It doesn't appear to.

266:14 - 266:25 Douglas Moses 12.05.2019 

 266 14 Q. So if a soldier saw this or the

 266 15 military audiologists saw this or somebody

 266 16 that you were sending this to in the

 266 17 military, there's nothing here that would

 266 18 convey to them that you needed to roll those

 266 19 flanges back, is there?

 266 20 MR. MORRISS: Object to form.

 266 21 QUESTIONS BY MR. CARTMELL:

 266 22 Q. During wearing?

 266 23 A. I don't think it specifically

 266 24 says "during wearing." From these images, it

 266 25 doesn't show the flanges rolled back.

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267:25 - 268:4 Douglas Moses 12.05.2019 

 267 25 Q. Okay. Then to be clear,

 268 1 there's nothing about these pictures, though,

 268 2 that tell you you need to roll back the

 268 3 flange, correct?

 268 4 A. In these pictures, no.

Re: [267:25-268:4]

Def Obj Relevance (401, 402); 

Prejudice (403)

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268:5 - 268:11 Douglas Moses 12.05.2019 

 268 5 Q. Okay. But we know that in the

 268 6 flange report, Mr. Kieper said specifically

 268 7 in the testing that if you didn't wear them

 268 8 with the rings rolled back, it could press

 268 9 against the ear and it cause the plug to

 268 10 loosen imperceptibly, correct?

 268 11 A. In some participants, yes.

276:8 - 276:20 Douglas Moses 12.05.2019 

 276 8 Q. We talked about the pictures.

 276 9 You often, in your marketing materials that

 276 10 you were leading to put together related to

 276 11 the Combat Arms Earplugs, you would put

 276 12 graphics and pictures of soldiers in those,

 276 13 wouldn't you?

 276 14 A. Sometimes.

 276 15 Q. And you would be asked to put

Re: [276:8-276:20]

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Douglas Moses 12.05.2019 60

 276 16 those together, and oftentimes you would be

 276 17 the one who would actually approve those,

 276 18 right?

 276 19 A. Sometimes. I would get input

 276 20 from our graphic designers and others.

276:21 - 277:25 Douglas Moses 12.05.2019 

 276 21 (Moses Exhibit 21 marked for

 276 22 identification.)

 276 23 QUESTIONS BY MR. CARTMELL:

 276 24 Q. I know you went through lots of

 276 25 brochures during your 30(b)(6) deposition.

 277 1 Do you recall that?

 277 2 A. I recall looking at some, yes.

 277 3 Q. Right.

 277 4 And there's multiple pictures

 277 5 of soldiers in actual combat gear on the

 277 6 marketing materials that you were approving

 277 7 and helping to put together while you were

 277 8 the manager; is that correct?

 277 9 A. There were a handful, yes,

 277 10 uh-huh.

 277 11 Q. And these are some of those.

 277 12 These are three of those, correct?

 277 13 A. I think the one in the upper

 277 14 left corner was something that had already

 277 15 been produced by the time I began working on

 277 16 Combat Arms.

 277 17 Q. Okay. At any rate, if you look

 277 18 at these pictures of these soldiers who are

 277 19 in combat gear, they have actually Combat

 277 20 Arms Earplugs, the second version, in their

 277 21 ears, don't they?

 277 22 A. It appears so, yes.

 277 23 Q. And none of those actually have

 277 24 the rings folded back, do they?

 277 25 A. Not in these images, no.

Re: [276:21-277:25]

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279:21 - 280:7 Douglas Moses 12.05.2019 

 279 21 Q. But would you agree with me

 279 22 that in none of the marketing materials that

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 279 23 you helped produce did you have a model, as

 279 24 you said, in combat gear with a picture of

 279 25 the plug in his ear with the flange rolled

 280 1 back?

 280 2 A. I don't recall that.

 280 3 Q. The truth is -- and I think you

 280 4 were asked in your 30(b)(6) -- you know that

 280 5 you never had a picture of a soldier with the

 280 6 flange rolled back in his ears?

 280 7 A. I don't recall doing that, no.

281:2 - 281:4 Douglas Moses 12.05.2019 

 281 2 Q. Okay. We've talked some about

 281 3 NRRs, and I want to refer you back to

 281 4 Exhibit 11.

281:8 - 281:10 Douglas Moses 12.05.2019 

 281 8 I want to go to the blister

 281 9 card, the second page of this document. So

 281 10 805 -- let's see. Yeah, that page.

281:16 - 281:18 Douglas Moses 12.05.2019 

 281 16 We've been talking a lot about

 281 17 NRRs, right?

 281 18 A. Yes, we've talked about it.

281:19 - 282:3 Douglas Moses 12.05.2019 

 281 19 Q. Okay. And we just talked about

 281 20 that the company, in 2000, when they tested

 281 21 this Combat Arms version 2 earplug, the first

 281 22 test was looking like the NRR might only be

 281 23 around 11.

 281 24 Do you remember that from the

 281 25 flange report?

 282 1 MR. MORRISS: Object to form.

 282 2 THE WITNESS: I remember that

 282 3 document.

Re: [281:19-282:3]

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282:4 - 282:16 Douglas Moses 12.05.2019 

 282 4 QUESTIONS BY MR. CARTMELL:

 282 5 Q. And 11 would have been,

 282 6 obviously, mathematically, half of what is

 282 7 actually on the blister card, correct?

 282 8 A. It would be half numerically.

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Douglas Moses 12.05.2019 62

 282 9 I'm not sure what it means in noise reduction

 282 10 rating, though.

 282 11 Q. Okay. Well, it says right here

 282 12 under this EPA label that your company put on

 282 13 the Combat Arms version 2, "Higher numbers

 282 14 denote greater effectiveness."

 282 15 Right?

 282 16 A. I see that, yes.

284:1 - 284:6 Douglas Moses 12.05.2019 

 284 1 But generally, if you're next

 284 2 to high noise, very high noise, you

 284 3 would want to have more protection.

 284 4 QUESTIONS BY MR. CARTMELL:

 284 5 Q. Higher number?

 284 6 A. Generally, yes.

Re: [284:1-284:6]

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OVERRULED

284:7 - 285:4 Douglas Moses 12.05.2019 

 284 7 Q. Okay. And that's my point, is

 284 8 that 11 that was in the test that was never

 284 9 provided, as far as we know, to the military

 284 10 or anyone else, would not have -- or would

 284 11 denote that your product, if it was in fact

 284 12 an NRR of 11, was not as, as you look at this

 284 13 word here, effective as one that has a 22

 284 14 rating, correct?

 284 15 MR. MORRISS: Object to the

 284 16 commentary and the introduction and

 284 17 object to the form.

 284 18 THE WITNESS: I don't know what

 284 19 the word "effectiveness" means here

 284 20 and how it is used. I don't know

 284 21 that. But generally --

 284 22 QUESTIONS BY MR. CARTMELL:

 284 23 Q. Well, this is on the label from

 284 24 your company.

 284 25 A. That is, I believe -- from my

 285 1 understanding as I look at this, that is

 285 2 language provided by the EPA. And I just

 285 3 don't understand how the word "effectiveness"

 285 4 is used here.

Re: [284:7-285:4]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602)

SUSTAINED

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Douglas Moses 12.05.2019 63

285:22 - 286:1 Douglas Moses 12.05.2019 

 285 22 Q. Fair enough.

 285 23 22 denotes more or greater

 285 24 effectiveness than one that has 11, fair?

 285 25 A. In the way that it's described

 286 1 here, that's fair.

289:7 - 290:2 Douglas Moses 12.05.2019 

 289 7 And you would not want your

 289 8 lab, for example, to use tricks to get a high

 289 9 noise reduction rating, correct?

 289 10 MR. MORRISS: Object to form.

 289 11 THE WITNESS: I don't know

 289 12 about tricks. I would expect that any

 289 13 output at the end of the day, after

 289 14 whatever internal discussions and

 289 15 analysis they do, would be accurate to

 289 16 the best of their ability.

 289 17 QUESTIONS BY MR. CARTMELL:

 289 18 Q. Well, you say you don't know

 289 19 about tricks, but you wouldn't want them to

 289 20 engage in any trickery, for example, to try

 289 21 to get the highest number they could so that

 289 22 it would help sell the product to the

 289 23 audiologists in the military, for example?

 289 24 MR. MORRISS: Object to form.

 289 25 THE WITNESS: I would want the

 290 1 EPA numbers and output from the lab to

 290 2 be accurate.

Re: [289:7-290:2]

Def Obj Vague (611, 403); Relevance 

(401, 402); 701

SUSTAINED

290:18 - 290:23 Douglas Moses 12.05.2019 

 290 18 Q. It's true, though, sir, for

 290 19 selling in a market earplugs that are

 290 20 supposed to be for constant, high-level

 290 21 noise, higher numbers can be better for sales

 290 22 and profits, correct?

 290 23 A. Sometimes. Sometimes.

Re: [290:18-290:23]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

291:5 - 291:17 Douglas Moses 12.05.2019 

 291 5 Q. And do you know, based on your

 291 6 15 years experience in this industry and with

 291 7 dealing with hearing protection, whether it

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Douglas Moses 12.05.2019 64

 291 8 was appropriate for them to stop the test

 291 9 when the NRR looked like it was going to be

 291 10 11 and restart the test, which ended up in

 291 11 the higher NRR?

 291 12 Do you know one way or another

 291 13 whether that was appropriate or against the

 291 14 policy or regulations?

 291 15 A. I would leave that to the lab

 291 16 to understand. I don't know the

 291 17 circumstances in your hypothetical.

291:24 - 292:8 Douglas Moses 12.05.2019 

 291 24 Q. Okay. And actually you have

 291 25 been involved in a similar situation where

 292 1 your laboratory at the company, at 3M,

 292 2 actually, started testing of a Combat Arms

 292 3 Earplug next gen product and was getting low

 292 4 NRRs, and then retested and got higher NRRs,

 292 5 correct?

 292 6 A. I think there was some -- in

 292 7 the development of the Combat Arms 4.0, I

 292 8 have some recollection about that.

Re: [291:24-292:8]

Def Obj 3M MIL No. 18

OVERRULED

292:9 - 292:25 Douglas Moses 12.05.2019 

 292 9 (Moses Exhibit 22 marked for

 292 10 identification.)

 292 11 QUESTIONS BY MR. CARTMELL:

 292 12 Q. Let me hand you Exhibit 22.

 292 13 Mr. Moses, Exhibit 32 {sic} was

 292 14 produced to us in this litigation from 3M's

 292 15 internal files, and you can see that this is

 292 16 a report. The title is "The Development of

 292 17 the Combat Arms Earplug Versions 1 Through

 292 18 Version 4."

 292 19 Do you see that?

 292 20 A. I do.

 292 21 Q. This is another report that is

 292 22 written by R.W. Kieper and E.H. Berger, who

 292 23 are in the technical side of the company,

 292 24 correct?

 292 25 A. They're at the E-A-RCAL lab.

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Douglas Moses 12.05.2019 65

293:13 - 293:25 Douglas Moses 12.05.2019 

 293 13 Q. Those are the same two authors

 293 14 that actually were the authors of the flange

 293 15 report that we just looked at; is that right?

 293 16 A. I believe so, yes.

 293 17 Q. This is a document dated

 293 18 July 23, 2010, which would be a time period

 293 19 when you were actually serving as the main

 293 20 marketing man at the company responsible for

 293 21 sales of the Combat Arms version 3 or

 293 22 version 4 and version 2 to the military,

 293 23 correct?

 293 24 A. This was in the same time

 293 25 period.

296:2 - 297:2 Douglas Moses 12.05.2019 

 296 2 Q. Okay. Now, I want to turn to

 296 3 page 34, which is actually talking about

 296 4 testing done on version 4 of the Combat Arms.

 296 5 And you can tell that -- if you

 296 6 go to page 33 at the top it states, "Combat

 296 7 Arms Earplug version 4."

 296 8 Do you see that?

 296 9 A. I do.

 296 10 Q. The next page, though, 34,

 296 11 talks about the real-ear tests, which are the

 296 12 NRRs tests that we've talked about, and

 296 13 that's where I want to direct your attention.

 296 14 A. Okay.

 296 15 Q. Now, it states, "The first

 296 16 labeling tests of this Combat Arms Earplug

 296 17 version 4 were completed in February

 296 18 of 2009." And then it talks about the

 296 19 results being shown in the figures. And then

 296 20 it says, "The test result was an NRR of 5."

 296 21 That was on the yellow end --

 296 22 or excuse me. No, that's wrong. The test

 296 23 result was an NRR of 5, and with the cover in

 296 24 the closed position, an NRR of 17.

 296 25 Do you see that?

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Douglas Moses 12.05.2019 66

 297 1 A. Yes, I see it right here. I

 297 2 see the test results, yes.

297:12 - 297:22 Douglas Moses 12.05.2019 

 297 12 Q. Okay. So they did some testing

 297 13 in 2000 -- February of 2009, and your

 297 14 laboratory came up in the closed end, which

 297 15 is like the green end of the version 2, with

 297 16 an NRR of 17, correct?

 297 17 A. It appears so, yes.

 297 18 Q. Okay. And that version 4, if

 297 19 that was the case, that would have been five

 297 20 points lower than the version 2. In other

 297 21 words, 17 is five less than 22, correct?

 297 22 A. It is numerically five less.

Re: [297:12-297:22]

Def Obj Relevance (401, 402); 

Foundation (602); Prejudice (403)

OVERRULED

297:23 - 297:25 Douglas Moses 12.05.2019 

 297 23 Again, I don't understand what that means --

 297 24 Q. Okay.

 297 25 A. -- from an NRR standpoint.

Re: [297:23-297:25]

Pltf Obj beyond the scope of 

clarification, duplicative/cumulative of 

above and nonresponsive to the question

OVERRULED

298:10 - 298:15 Douglas Moses 12.05.2019 

 298 10 Q. Okay. Let me hand you now what

 298 11 has been marked as Exhibit 23, and let me ask

 298 12 you some questions about this e-mail string

 298 13 that came out of your files at the company

 298 14 and was produced in this litigation.

 298 15 A. Okay.

Re: [298:10-298:15]

Def Obj Relevance (401, 402)

OVERRULED

298:24 - 299:13 Douglas Moses 12.05.2019 

 298 24 Q. Now, Mr. Moses, that finding of

 298 25 17 for version 4 for the NRR, that finding

 299 1 that was five lower than the version 2, that

 299 2 upset some people at the company, didn't it?

 299 3 A. I believe there were some

 299 4 discussions about it. I don't know about the

 299 5 word "upset."

 299 6 Q. What about frustrated some

 299 7 people? Do you remember that it frustrated

 299 8 some people?

 299 9 A. Possibly.

 299 10 Q. And I take it you have a

 299 11 recollection of this time period and your

Re: [298:24-299:13]

Def Obj Relevance (401, 402); 

Prejudice (403)

DEFER RULING

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Douglas Moses 12.05.2019 67

 299 12 involvement in this; is that right?

 299 13 A. Some recollection, yes, uh-huh.

299:25 - 300:7 Douglas Moses 12.05.2019 

 299 25 Sir, if you would go to .3,

 300 1 you'll see that -- for some reason this was

 300 2 the way it was produced to us from the

 300 3 company, this e-mail string, but it's hard to

 300 4 read. But you'll see there's a Doug Ohlin

 300 5 e-mail address on May 28, 2009, and then

 300 6 below that it's Doug Moses, and it's to Doug

 300 7 Moses.

300:18 - 301:16 Douglas Moses 12.05.2019 

 300 18 And then it says, "The new NRR

 300 19 for the CAE."

 300 20 Do you see that?

 300 21 A. I do.

 300 22 Q. Okay. And then the next page

 300 23 is the e-mail that Doug Ohlin sent to you,

 300 24 right?

 300 25 A. Yes, this appears to be to me.

 301 1 Q. Now, for the jury's sake, I

 301 2 want to talk about Doug Ohlin for a second.

 301 3 Doug Ohlin, at this time in

 301 4 2009 was actually a consultant that had a

 301 5 contract with 3M to help with sales or

 301 6 marketing of the Combat Arms Earplugs,

 301 7 correct?

 301 8 A. He was a contractor to 3M. He

 301 9 did other things technical as well.

 301 10 Q. Okay. He had been working for

 301 11 the military for a period of time, and you

 301 12 had some contact when he actually worked at

 301 13 the military, I take it?

 301 14 A. Yes. He was a civilian

 301 15 employee for the Army hearing program or

 301 16 whatever the precursor name was for that.

302:16 - 303:6 Douglas Moses 12.05.2019 

 302 16 Q. Okay. And actually, I've seen

 302 17 in the documents that he was actually listed

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Douglas Moses 12.05.2019 68

 302 18 under you on an organizational chart as a

 302 19 consulting employee, correct?

 302 20 A. Yes, because his funding came

 302 21 from my budget.

 302 22 Q. Okay. And you used Mr. Ohlin,

 302 23 I take it, as a good representative for the

 302 24 company to talk to the military about the

 302 25 products and try to help with sales and

 303 1 marketing; is that correct?

 303 2 A. Sometimes he would make contact

 303 3 with some of the military or the civilian

 303 4 personnel. I mean, my -- I learned a lot

 303 5 from him, and that was really why I was -- I

 303 6 enjoyed learning from him.

304:10 - 304:14 Douglas Moses 12.05.2019 

 304 10 Q. And you thought he was honest

 304 11 and trustworthy?

 304 12 A. I thought so.

 304 13 Q. Okay. You could rely on him?

 304 14 A. Yes.

304:15 - 305:1 Douglas Moses 12.05.2019 

 304 15 Q. Okay. This is an e-mail.

 304 16 Let's go to the e-mail from him to you, as we

 304 17 said, in May of 2009.

 304 18 It states, "Doug, I'd like this

 304 19 to be kept between you and me. There is

 304 20 already enough tension between the research

 304 21 and marketing groups in your shop without me

 304 22 adding to it."

 304 23 Now, the research group is what

 304 24 you often call the technical group, correct?

 304 25 A. I think he's referring to the

 305 1 lab personnel, the technical lab personnel.

Re: [304:15-305:1]

Def Obj Relevance (401, 402); 

Prejudice (403); Hearsay (801, 802)

DEFER RULING

305:6 - 306:12 Douglas Moses 12.05.2019 

 305 6 Q. And he's saying that he knows

 305 7 that there's tension between your group,

 305 8 meaning the marketing group, and that

 305 9 technical lab group, correct?

 305 10 A. That's what he says here, yes,

Re: [305:6-306:12]

Def Obj Relevance (401, 402); 

Prejudice (403); Hearsay (801, 802)

DEFER RULING

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Douglas Moses 12.05.2019 69

 305 11 uh-huh.

 305 12 Q. Okay. And then he says, "But I

 305 13 have to vent to you my frustration over that

 305 14 reduced NRR for the new version of the Combat

 305 15 Arms Earplug."

 305 16 Do you see that?

 305 17 A. I see that.

 305 18 Q. And what he's referring to is

 305 19 that 17 when they did the test of the

 305 20 version 4, he was frustrated with that

 305 21 result, correct?

 305 22 A. I want to -- one moment.

 305 23 Q. Sure.

 305 24 A. And so the test was in March

 305 25 of 2009, and this is some two months later?

 306 1 Q. Yes.

 306 2 A. He could be referring to that,

 306 3 but I don't know for sure.

 306 4 Q. Okay. At any rate, he says,

 306 5 "The old guard at Aearo has always believed

 306 6 that the classic foam and the one-size

 306 7 UltraFit were the ultimate in earplug

 306 8 protection. The lab would use every legal

 306 9 trick in the book to get the highest NRRs

 306 10 possible."

 306 11 Do you see that?

 306 12 A. I see those words.

306:13 - 306:24 Douglas Moses 12.05.2019 

 306 13 Q. Now, so as of this time in

 306 14 2009, did you know that? In other words, did

 306 15 you know that Mr. Ohlin, for example,

 306 16 believed that your lab at Aearo had used

 306 17 legal tricks to try to get the highest NRRs?

 306 18 A. As of the time I received this?

 306 19 Q. Yeah.

 306 20 A. I don't recall receiving this,

 306 21 you know, as I sit here, but if he sent it to

 306 22 me at this time and I read this, which it

Re: [306:13-306:24]

Def Obj Relevance (401, 402); 

Prejudice (403)

DEFER RULING

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Douglas Moses 12.05.2019 70

 306 23 appears I have, then I would have known it at

 306 24 that point.

308:22 - 309:2 Douglas Moses 12.05.2019 

 308 22 Q. At any rate, Mr. Ohlin says

 308 23 that "the lab is using legal tricks to get

 308 24 high NRRs, the highest NRRs possible. They

 308 25 had to if they wanted to be competitive."

 309 1 Do you see that?

 309 2 A. I see those words.

Re: [308:22-309:2]

Def Obj Hearsay (801, 802); Relevance 

(401, 402); Prejudice (403)

DEFER RULING

309:23 - 310:8 Douglas Moses 12.05.2019 

 309 23 Q. Okay. What he's saying, would

 309 24 you agree with me, is he's saying they had to

 309 25 pull these tricks to try to get high NRRs in

 310 1 order to be competitive with those other

 310 2 companies who were producing ear protection.

 310 3 That's what he's saying, isn't

 310 4 he?

 310 5 MR. MORRISS: Object to form.

 310 6 THE WITNESS: I think I would

 310 7 have liked to have asked Doug what he

 310 8 meant here.

Re: [309:23-310:8]

Def Obj Argumentative; Vague (611, 

403); Relevance (401, 402); Prejudice 

(403); Foundation (602)

DEFER RULING

310:9 - 310:12 Douglas Moses 12.05.2019 

 310 9 QUESTIONS BY MR. CARTMELL:

 310 10 Q. Did you ask him when he sent

 310 11 this to you?

 310 12 A. I don't recall asking him.

310:13 - 310:19 Douglas Moses 12.05.2019 

 310 13 Q. Okay. It then says, "The sized

 310 14 Combat Arms Earplug comes along" --

 310 15 That's the version 3 and

 310 16 version 4, correct?

 310 17 A. Yes, I think probably in this

 310 18 time frame we're talking about 4, though,

 310 19 specifically.

Re: [310:13-310:19]

Pltf Obj beyond the scope of 

clarification 

DEFER RULING

325:3 - 325:13 Douglas Moses 12.05.2019 

 325 3 Q. Okay. Let me show you then --

 325 4 A. Thank you.

 325 5 (Moses Exhibit 24 marked for

 325 6 identification.)

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 123 of 169
Douglas Moses 12.05.2019 71

 325 7 QUESTIONS BY MR. CARTMELL:

 325 8 Q. -- Exhibit 24.

 325 9 A. Thank you.

 325 10 Q. Sir, this is an e-mail chain

 325 11 that comes from the files at 3M, and it was

 325 12 produced in this litigation, and I want to

 325 13 ask you some more questions about this.

325:21 - 326:1 Douglas Moses 12.05.2019 

 325 21 Sir, at the bottom of the first

 325 22 page there's an e-mail from Elliott Berger to

 325 23 Jeffrey Hamer, Doug Moses, Marc Santoro and

 325 24 Brian Myers, and that is dated June 9, 2009.

 325 25 Do you see that?

 326 1 A. I do.

326:9 - 326:16 Douglas Moses 12.05.2019 

 326 9 Q. Okay. So you've been in a

 326 10 meeting with these guys talking about the

 326 11 version 4 and whether or not there's going to

 326 12 be a retest, and they decide that they're

 326 13 going to do a retest because they didn't like

 326 14 the low number, correct?

 326 15 A. I don't recall that, but I

 326 16 think that was the outcome.

Re: [326:9-326:16]

Def Obj 3M MIL No. 18; Relevance 

(401, 402); Prejudice (403)

OVERRULED

328:1 - 328:5 Douglas Moses 12.05.2019 

 328 1 Q. Okay. And then they were going

 328 2 to retest, and they were going to change the

 328 3 instructions and the way they fit, actually,

 328 4 the product in the subsequent test, correct?

 328 5 A. It appears so, yes.

Re: [328:1-328:5]

Def Obj 3M MIL No. 18

OVERRULED

329:9 - 331:8 Douglas Moses 12.05.2019 

 329 9 Okay. Thank you.

 329 10 Q. So they've decided to change

 329 11 the way they fit the subjects when they're

 329 12 doing the test, the first test that they

 329 13 didn't like the NRR from. They were using

 329 14 the largest size plug for the fitting, and

 329 15 they decided to use the smallest size when

 329 16 they retested, correct?

 329 17 MR. MORRISS: Object to form.

Re: [329:9-331:8]

Pltf Obj beyond the scope of 

clarification and answer is totally 

nonresponsive

OVERRULED

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Douglas Moses 12.05.2019 72

 329 18 THE WITNESS: My comment would

 329 19 be this: I don't know that they

 329 20 didn't like it. It appears to me that

 329 21 they're trying to conform to the Army

 329 22 procedures, using the visual --

 329 23 visually using the smallest size. And

 329 24 so they're proposing using the Army's

 329 25 fitting method in the proposal for

 330 1 retest here.

 330 2 So I'm not sure that it's tied

 330 3 to the not liking it. I can't draw

 330 4 that conclusion sitting here.

 330 5 QUESTIONS BY MR. CARTMELL:

 330 6 Q. I'm not saying they didn't like

 330 7 the fitting test; I'm saying they didn't like

 330 8 the NRR.

 330 9 It was too low, so they decided

 330 10 to retest, correct?

 330 11 MR. MORRISS: Object to form.

 330 12 THE WITNESS: I don't know what

 330 13 the motivation was. In this document

 330 14 it talks about the Army procedures,

 330 15 and it appears that the proposal for

 330 16 retest is trying to mimic what the

 330 17 Army does and how the Army actually

 330 18 fits Combat Arms Earplugs.

 330 19 QUESTIONS BY MR. CARTMELL:

 330 20 Q. Okay. So what they did is just

 330 21 like with the flange report, right? They got

 330 22 an NRR -- or they were thinking they were

 330 23 going to get a low NRR, and they decided that

 330 24 they were going to retest it to get a higher

 330 25 NRR, correct?

 331 1 MR. MORRISS: Object to form.

 331 2 THE WITNESS: Again, I can't

 331 3 draw that conclusion from here because

 331 4 it doesn't talk about what the NRRs

 331 5 are in the previous test. It just

 331 6 talks about conforming to the Army

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 125 of 169
Douglas Moses 12.05.2019 73

 331 7 procedures here.

 331 8 QUESTIONS BY MR. CARTMELL:

334:6 - 335:1 Douglas Moses 12.05.2019 

 334 6 Q. Okay. So there was a retest,

 334 7 and let's go to exhibit -- let's go to

 334 8 Exhibit 24.

 334 9 This is actually -- we were

 334 10 talking about it --

 334 11 A. 24, I think we just did that.

 334 12 Q. No, we're still talking about

 334 13 the e-mail. We looked at the attachment, and

 334 14 I want to refer you to the e-mails.

 334 15 Once Mr. Berger sends the

 334 16 revised protocol for the retest, you actually

 334 17 respond to his e-mail, correct?

 334 18 A. I send it to just Doug. Yes, I

 334 19 send a comment to Doug.

 334 20 Q. Okay. And your comment to just

 334 21 Doug on 6/9/2009, revised fitting protocol

 334 22 for the CAE retest was, "Nice job, keep

 334 23 pushing," correct?

 334 24 A. Yes.

 334 25 Q. What did you mean there?

 335 1 A. I don't recall.

Re: [334:6-335:1]

Def Obj 3M MIL No. 18

OVERRULED

335:11 - 336:9 Douglas Moses 12.05.2019 

 335 11 Q. You say "keep pushing" to

 335 12 Ohlin, and he responds to you, doesn't he?

 335 13 A. He does. He replies, uh-huh.

 335 14 Q. At the top he says, "Doug, this

 335 15 situation reminds me of something that

 335 16 happened at Aearo years ago of which you may

 335 17 or may not be aware. There has always been

 335 18 intense pressure on Elliott" --

 335 19 That's Elliott Berger, right?

 335 20 A. Yes, likely, yes.

 335 21 Q. Elliott Berger who runs the lab

 335 22 at Aearo, correct?

 335 23 A. Yes, the E-A-RCAL lab.

 335 24 Q. He says, "There has always been

Re: [335:11-336:9]

Def Obj Hearsay (801, 802); 3M MIL 

No. 6

DEFER RULING

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Douglas Moses 12.05.2019 74

 335 25 intense pressure on Elliott to match the

 336 1 attenuation values at Penn State Lab" -- or

 336 2 "to match the attenuation values the Penn

 336 3 State lab is able to produce. I'm not sure

 336 4 if that's what instigated this incident or

 336 5 not, but Aearo received a six-figure fine

 336 6 from the EPA over some protocol issue related

 336 7 to an attempt to produce higher NRRs."

 336 8 Do you see that?

 336 9 A. I do.

336:22 - 337:7 Douglas Moses 12.05.2019 

 336 22 Q. So you say "keep pushing," and

 336 23 he responds by telling you, just so you know,

 336 24 this reminds him of an incident years ago

 336 25 where there was pressure on Elliott Berger to

 337 1 match attenuation values of another lab.

 337 2 And he says when that happened

 337 3 in the past, Aearo received a six-figure

 337 4 fine, correct?

 337 5 MR. MORRISS: Object to form.

 337 6 THE WITNESS: Yes, that's what

 337 7 is written here.

Re: [336:22-337:7]

Def Obj 3M MIL No. 6

OVERRULED

337:8 - 337:25 Douglas Moses 12.05.2019 

 337 8 QUESTIONS BY MR. CARTMELL:

 337 9 Q. Did you know about your lab at

 337 10 Aearo being fined in the past for trying to

 337 11 get higher NRRs or match another competitor

 337 12 lab's NRRs?

 337 13 A. Not until I saw this in 2013.

 337 14 Q. He says, "I was appalled not at

 337 15 Aearo but more over the EPA focusing on the

 337 16 most professional of the hearing protection

 337 17 manufacturers while Walmart was selling

 337 18 hearing protectors from China without NRRs."

 337 19 And then he says, "I'm bringing

 337 20 this up because it sounds like history

 337 21 repeating itself."

 337 22 Do you see that?

 337 23 A. I see that.

Re: [337:8-337:25]

Def Obj 3M MIL No. 6

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 127 of 169
Douglas Moses 12.05.2019 75

 337 24 Q. What does that mean to you?

 337 25 A. He has some concern that

338:23 - 339:9 Douglas Moses 12.05.2019 

 338 23 Q. So Ohlin is saying, hey, we

 338 24 need to watch it because this lab -- and

 338 25 Elliott's lab is what he's talking about --

 339 1 in the past has been pressured, has felt like

 339 2 they needed to get higher NRRs. This is

 339 3 history repeating itself, I'm afraid, and

 339 4 we're pressuring him again and we need to be

 339 5 careful or we might get fined again, correct?

 339 6 MR. MORRISS: Object to form.

 339 7 THE WITNESS: He's written --

 339 8 he's written a statement here about

 339 9 the fine.

Re: [338:23-339:9]

Def Obj 3M MIL No. 6; Foundation 

(602)

OVERRULED

340:9 - 340:13 Douglas Moses 12.05.2019 

 340 9 you: How did you interpret what Mr. Ohlin

 340 10 was saying to you here?

 340 11 A. I don't recall receiving this

 340 12 document, so I don't recall interpreting it

 340 13 at the time that I received it.

340:18 - 341:8 Douglas Moses 12.05.2019 

 340 18 Q. I'd like you to interpret it

 340 19 right now, sitting here, knowing you lived

 340 20 this. And now you've had the ability to

 340 21 review the e-mails again, I'd like you to

 340 22 tell the jury what you interpret this to

 340 23 mean.

 340 24 A. It appears that Doug is talking

 340 25 about some prior history with the lab and

 341 1 some possible -- or some pressure that

 341 2 Elliott felt, and he's concerned -- it

 341 3 appears that he's concerned that that might

 341 4 be happening again.

 341 5 Q. And the pressure that he's

 341 6 talking about is the pressure to get higher

 341 7 NRRs from the tests, right?

 341 8 A. Yes. Generally, yes.

Re: [340:18-341:8]

Def Obj 3M MIL No. 6; Foundation 

(602)

DEFER RULING

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Douglas Moses 12.05.2019 76

341:21 - 342:5 Douglas Moses 12.05.2019 

 341 21 (Moses Exhibit 25 marked for

 341 22 identification.)

 341 23 QUESTIONS BY MR. CARTMELL:

 341 24 Q. Hand you Exhibit 25.

 341 25 This is a document that was

 342 1 produced in this litigation from 3M's files.

 342 2 It's a memo, as you can see, to you and Jeff

 342 3 Hamer, Doug Ohlin, Marc Santoro and Brian

 342 4 Myers; is that right?

 342 5 A. Yes.

342:6 - 342:11 Douglas Moses 12.05.2019 

 342 6 Q. It's from Elliott Berger, who

 342 7 is the individual that Mr. Ohlin was

 342 8 concerned was being pressured to get

 342 9 retesting done for higher NRRs, correct?

 342 10 A. This is output from the retest,

 342 11 it appears.

Re: [342:6-342:11]

Def Obj 3M MIL No. 6

OVERRULED

342:12 - 342:21 Douglas Moses 12.05.2019 

 342 12 Q. And this was from Elliott

 342 13 Berger, right?

 342 14 And he is the one who Doug

 342 15 Ohlin had said he was afraid was being

 342 16 pressured to retest and get higher NRRs; is

 342 17 that right?

 342 18 MR. MORRISS: Object to form.

 342 19 THE WITNESS: He mentioned Doug

 342 20 Ohlin in that previous exhibit that we

 342 21 looked at.

Re: [342:12-342:21]

Def Obj Compound (611, 403); 3M 

MIL No. 6

DEFER RULING

342:22 - 342:24 Douglas Moses 12.05.2019 

 342 22 QUESTIONS BY MR. CARTMELL:

 342 23 Q. He mentioned Elliott Berger?

 342 24 A. Elliott, I'm sorry.

342:25 - 343:4 Douglas Moses 12.05.2019 

 342 25 Q. He was worried that Elliott

 343 1 Berger was being pressured, correct?

 343 2 MR. MORRISS: Object to form.

 343 3 THE WITNESS: He expressed a

 343 4 concern in that e-mail.

Re: [342:25-343:4]

Def Obj Hearsay (801, 802); 

Foundation (602); Vague (611, 403)

DEFER RULING

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Douglas Moses 12.05.2019 77

343:5 - 343:18 Douglas Moses 12.05.2019 

 343 5 QUESTIONS BY MR. CARTMELL:

 343 6 Q. Okay. As a result of that

 343 7 e-mail where Mr. Ohlin told you that he had

 343 8 fears that there was pressure being put on

 343 9 Elliott Berger, did you do anything?

 343 10 In other words, did you go to

 343 11 Mr. Berger and say, hey, you know, sorry if

 343 12 we're putting pressure on you to get higher

 343 13 NRRs, or did you call anybody else and have

 343 14 conversations that you needed to back off or

 343 15 anything like that?

 343 16 MR. MORRISS: Object to form.

 343 17 THE WITNESS: I don't recall

 343 18 having a conversation with the lab.

Re: [343:5-343:18]

Def Obj 3M MIL No. 6; 

Argumentative; Compound (611, 403)

DEFER RULING

343:19 - 344:3 Douglas Moses 12.05.2019 

 343 19 QUESTIONS BY MR. CARTMELL:

 343 20 Q. Do you recall having a

 343 21 conversation with anybody after Mr. Ohlin

 343 22 told you that the lab had been fined in the

 343 23 past because they were trying to get higher

 343 24 NRRs?

 343 25 A. I don't recall having a

 344 1 conversation like that.

 344 2 Q. With anybody?

 344 3 A. Not that I recall.

Re: [343:19-344:3]

Def Obj 3M MIL No. 6

DEFER RULING

344:10 - 344:24 Douglas Moses 12.05.2019 

 344 10 Q. If you look at this memo, it

 344 11 states, "In June 19, 2009, test results for

 344 12 CAE version 4 with the new instruction set.

 344 13 "We have completed retesting of

 344 14 CAE version 4. The results are attached.

 344 15 With the new instruction set, we find the NRR

 344 16 open is still 7 dB, but now the NRR closed

 344 17 has increased to 23 dB."

 344 18 Do you see that?

 344 19 A. I do.

 344 20 Q. "This new value is valid as

 344 21 long as we change our instructions

Re: [344:10-344:24]

Def Obj 3M MIL No. 18; Relevance 

(401, 402)

OVERRULED

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Douglas Moses 12.05.2019 78

 344 22 accordingly."

 344 23 Do you see that?

 344 24 A. I do. I see those words.

344:25 - 345:19 Douglas Moses 12.05.2019 

 344 25 Q. So what had happened, if I can

 345 1 summarize, and correct me if I am wrong, is

 345 2 that the Aearo lab had tested version 4, and

 345 3 they had received an NRR of 19 or 17 in the

 345 4 original testing.

 345 5 Thereafter, there was meetings

 345 6 going on involving you and others. You had

 345 7 attended a meeting with members of the actual

 345 8 lab, and you had told them that you wanted to

 345 9 actually be a witness and see the fitting

 345 10 during the retest.

 345 11 They actually did the retest,

 345 12 and they got a much higher NRR.

 345 13 Is that true?

 345 14 MR. MORRISS: Object to form.

 345 15 THE WITNESS: Those are some of

 345 16 the facts. I'm not sure of the

 345 17 timeline of your narration. I don't

 345 18 even know that I actually went over to

 345 19 the lab to see the tests, so...

Re: [344:25-345:19]

Def Obj 3M MIL No. 18; Compound; 

Argumentative; Assumes (611, 403)

OVERRULED

345:20 - 346:3 Douglas Moses 12.05.2019 

 345 20 QUESTIONS BY MR. CARTMELL:

 345 21 Q. Do you know if it was

 345 22 appropriate once again for the lab to

 345 23 actually change the instructions, retest, in

 345 24 order to get a higher NRR?

 345 25 A. I don't know if it's

 346 1 appropriate or inappropriate. This is a new

 346 2 product development project, and I don't know

 346 3 what their processes are over there.

349:15 - 350:7 Douglas Moses 12.05.2019 

 349 15 Q. Okay. So with respect to the

 349 16 testing on the version 4 of the Combat Arms

 349 17 Earplugs, you actually were told by

 349 18 Mr. Ohlin, who you respected --

Re: [349:15-350:7]

Def Obj Relevance (401, 402); Hearsay 

(801, 802); Prejudice (403)

DEFER RULING

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Douglas Moses 12.05.2019 79

 349 19 Correct?

 349 20 MR. MORRISS: Object to form.

 349 21 THE WITNESS: I respected Doug

 349 22 Ohlin, sure.

 349 23 QUESTIONS BY MR. CARTMELL:

 349 24 Q. Okay.

 349 25 -- that the lab at your company

 350 1 and the old guard used legal tricks to try to

 350 2 get the highest NRRs for the products,

 350 3 correct?

 350 4 MR. MORRISS: Object to form.

 350 5 THE WITNESS: I believe we had

 350 6 some language that like in one of the

 350 7 earlier documents.

350:8 - 350:11 Douglas Moses 12.05.2019 

 350 8 QUESTIONS BY MR. CARTMELL:

 350 9 Q. Okay. When he said that to

 350 10 you, did you believe it?

 350 11 A. I don't recall.

350:16 - 351:4 Douglas Moses 12.05.2019 

 350 16 Q. Okay. You told the jury

 350 17 previously that you respected him, you

 350 18 trusted him, you thought he was reliable.

 350 19 Knowing that he told you that

 350 20 your lab at Aearo used legal tricks to try to

 350 21 get the highest NRRs, in reading that today,

 350 22 do you believe him?

 350 23 MR. MORRISS: Object to form.

 350 24 THE WITNESS: I don't know what

 350 25 a "legal trick" is. I don't -- you

 351 1 know, as far as I'm concerned, he

 351 2 wrote something to me. I don't recall

 351 3 getting it, and I don't recall doing

 351 4 anything with that information.

Re: [350:16-351:4]

Pltf Obj beyond the scope of 

clarification counter and answer is 

totally nonresponsive

DEFER RULING

351:13 - 351:24 Douglas Moses 12.05.2019 

 351 13 But today, knowing what you

 351 14 know about him and knowing those e-mail

 351 15 strings where he told you that there were

 351 16 legal tricks and there was pressure on

Re: [351:13-351:24]

Pltf Obj beyond the scope of 

clarification counter and nonresponsive

SUSTAINED

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Douglas Moses 12.05.2019 80

 351 17 Elliott Berger to get higher NRRs in the

 351 18 past, those types of things, do you believe

 351 19 him?

 351 20 MR. MORRISS: Object to form.

 351 21 THE WITNESS: I believe that

 351 22 Doug wrote that with sincerity. I

 351 23 didn't see evidence of pressure or

 351 24 legal tricks or things like that.

352:13 - 353:7 Douglas Moses 12.05.2019 

 352 13 And you have seen today that

 352 14 the lab actually had a flange report that

 352 15 they produced in 2000 that showed for the

 352 16 Combat Arms Earplug they stopped a test

 352 17 because they thought the NRR was low at 11.

 352 18 And they redid that test,

 352 19 changed the instructions and used the 22 NRR,

 352 20 and you didn't know a thing about that, did

 352 21 you?

 352 22 A. I don't recall knowing about

 352 23 that, right.

 352 24 Q. And you also saw that in that

 352 25 study they actually found that there could be

 353 1 imperceptible loosening of the plug, and in

 353 2 certain people it was very difficult to fit

 353 3 with unless the flange was folded back, and

 353 4 they never told you about that, did they?

 353 5 MR. MORRISS: Object to form.

 353 6 THE WITNESS: I don't recall

 353 7 knowing about that.

Re: [352:13-353:7]

Def Obj Cumulative (403); Relevance 

(401, 402); Prejudice (403)

OVERRULED

353:24 - 354:5 Douglas Moses 12.05.2019 

 353 24 Q. Did you do any investigation

 353 25 with others to try to figure out if maybe

 354 1 your lab was actually engaging in something

 354 2 improper in trying to get higher NRRs?

 354 3 MR. MORRISS: Object to form.

 354 4 THE WITNESS: I don't recall

 354 5 making -- or recall asking, no.

Re: [353:24-354:5]

Def Obj Vague (611, 403); Prejudice 

(403)

OVERRULED

370:19 - 371:1 Douglas Moses 12.05.2019 

 370 19 Q. Sir, let's move on and talk

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Douglas Moses 12.05.2019 81

 370 20 about the open end, or the yellow end, of the

 370 21 Combat Arms Earplug.

 370 22 Okay?

 370 23 A. Version 2?

 370 24 Q. Version 2, yes.

 370 25 A. Okay.

 371 1 Q. Your company also engaged in

371:1 - 371:3 Douglas Moses 12.05.2019 

 371 1 Q. Your company also engaged in

 371 2 legal trickery with respect to the NRR rating

 371 3 on that end, didn't it?

Re: [371:1-371:6]

Def Obj Argumentative; Vague (611, 

403); Prejudice (403) 

SUSTAINED

371:5 - 371:6 Douglas Moses 12.05.2019 

 371 5 THE WITNESS: I don't know what

 371 6 legal trickery is.

Re: [371:1-371:6]

Def Obj Argumentative; Vague (611, 

403); Prejudice (403)

SUSTAINED

371:16 - 372:4 Douglas Moses 12.05.2019 

 371 16 Q. I'm going to hand you then

 371 17 what's been marked as Exhibit 26.

 371 18 Sir, this is a document that

 371 19 was produced in this litigation from the

 371 20 internal files of 3M in this litigation, and

 371 21 it is an e-mail to you that includes an

 371 22 attachment to the e-mail.

 371 23 Do you see that?

 371 24 A. I think it's from me, not to

 371 25 me.

 372 1 Q. Oh, I apologize. Yeah, it's

 372 2 from Doug Moses, and you're sending it to

 372 3 Marc Santoro, correct?

 372 4 A. It appears so, yes.

372:23 - 373:11 Douglas Moses 12.05.2019 

 372 23 Q. Okay. Combat Arms -- okay.

 372 24 This is a sell sheet that has on the cover of

 372 25 it what looks like somebody who's in combat

 373 1 gear, and it states, "More than a hearing

 373 2 protector. Combat Arms Earplugs offer more

 373 3 than hearing protection. These

 373 4 standard-issue plugs are designed for combat.

 373 5 The patented Hear-Through� design promotes

 373 6 situational awareness allowing the wearer to

Re: [372:23-373:11]

Def Obj Relevance (401, 402)

OVERRULED

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Douglas Moses 12.05.2019 82

 373 7 hear low-level sounds critical to mission

 373 8 safety - conversation, footsteps, rifle

 373 9 bolts, approaching enemies."

 373 10 Do you see that?

 373 11 A. I do.

373:12 - 373:16 Douglas Moses 12.05.2019 

 373 12 Q. And that's referring to the

 373 13 yellow end of the version 2 Combat Arms

 373 14 Earplug, correct?

 373 15 A. I think this is a Combat Arms

 373 16 version 3 brochure.

Re: [373:12-373:16]

Pltf Obj beyond the scope of 

clarification counter and the answer is 

actually incorrect as far as what is on 

the document

SUSTAINED (nonresponsive)

374:2 - 374:16 Douglas Moses 12.05.2019 

 374 2 And if we're talking about the

 374 3 version 2 of Combat Arms Earplug, that would

 374 4 be referring to benefits or marketing claims

 374 5 related to the yellow end, correct?

 374 6 A. To the open mode, yes.

 374 7 Q. Which is the yellow end; is

 374 8 that right?

 374 9 A. Yes.

 374 10 Q. Okay. And it states -- when it

 374 11 states "this patented Hear-Through� design,"

 374 12 what does that mean?

 374 13 A. I think Hear-Through� was a

 374 14 registered trademark that had been around

 374 15 before I was there. The word "patented," I

 374 16 think, refers to the technology.

Re: [374:2-374:16]

Def Obj Relevance (401, 402)

OVERRULED

376:3 - 376:10 Douglas Moses 12.05.2019 

 376 3 Q. And this may be something we

 376 4 talked about earlier, is that the military

 376 5 wanted an earplug for their soldiers that if

 376 6 they had it in their ears, they could still

 376 7 hear things around them and be situationally

 376 8 aware, like hearing the commands of their

 376 9 officers, for instance, right?

 376 10 A. Yeah, something like that.

377:25 - 378:3 Douglas Moses 12.05.2019 

 377 25 Q. And it states that "high

 378 1 impulse noise will be blocked instantly."

Re: [377:25-378:3]

Def Obj Relevance (401, 402)

OVERRULED

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Douglas Moses 12.05.2019 83

 378 2 Do you see that?

 378 3 A. I do.

378:4 - 378:11 Douglas Moses 12.05.2019 

 378 4 Q. And then below that, again,

 378 5 there is the chart of the NRRs on the green

 378 6 end and the yellow end, and that's a

 378 7 marketing claim that you're making in your

 378 8 brochure as well, correct?

 378 9 MR. MORRISS: Object to form.

 378 10 THE WITNESS: Yes, those are

 378 11 the numbers that are produced.

Re: [378:4-378:11]

Def Obj Relevance (401, 402); Vague 

(611, 403)

OVERRULED

378:12 - 378:16 Douglas Moses 12.05.2019 

 378 12 QUESTIONS BY MR. CARTMELL:

 378 13 Q. Okay. And for the yellow end,

 378 14 it says zero, as we discussed before,

 378 15 correct?

 378 16 A. Yes.

378:19 - 379:2 Douglas Moses 12.05.2019 

 378 19 We talked about that for a

 378 20 product like the yellow end, or an earplug

 378 21 like the military wanted on the yellow end,

 378 22 the lower the NRR, the better, correct?

 378 23 MR. MORRISS: Object to form.

 378 24 THE WITNESS: I don't know

 378 25 exactly what that means, but at the

 379 1 same time I think, yes, lower, lower

 379 2 is a little better.

Re: [378:19-379:2]

Def Obj Vague (611, 403); Foundation 

(602); 701; Prejudice (403)

OVERRULED

380:16 - 381:5 Douglas Moses 12.05.2019 

 380 16 Q. Okay. And if we look at this

 380 17 chart that you put in your marketing

 380 18 brochures, when someone would see that NRR of

 380 19 zero, that would indicate to that individual

 380 20 or the military or the soldiers that that was

 380 21 the lowest attenuation rate you could get for

 380 22 the yellow side, correct?

 380 23 MR. MORRISS: Object to form.

 380 24 QUESTIONS BY MR. CARTMELL:

 380 25 Q. You can't go lower than zero.

 381 1 MR. MORRISS: Object to form.

Re: [380:16-381:5]

Def Obj Relevance (401, 402); 

Compound; Vague (611, 403); 701

OVERRULED

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Douglas Moses 12.05.2019 84

 381 2 THE WITNESS: That sounds

 381 3 reasonable. I actually don't know if

 381 4 you can go below zero. I guess if you

 381 5 had an amplification you could.

381:11 - 381:16 Douglas Moses 12.05.2019 

 381 11 Q. Okay. But the lab at Aearo

 381 12 actually engaged in some tricks with respect

 381 13 to this NRR, too, didn't it?

 381 14 MR. MORRISS: Object to form.

 381 15 THE WITNESS: I don't recall

 381 16 tricks.

Re: [381:11-381:16]

Def Obj Argumentative; Vague (611, 

403)

DEFER RULING

381:17 - 381:18 Douglas Moses 12.05.2019 

 381 17 (Moses Exhibit 27 marked for

 381 18 identification.)

381:22 - 382:5 Douglas Moses 12.05.2019 

 381 22 Mr. Moses, Exhibit 27 is an

 381 23 e-mail from Elliott Berger to Ron Kieper from

 381 24 2009, and I want to ask you questions. This

 381 25 came from the internal files that were

 382 1 produced in this litigation by 3M.

 382 2 You'll see that the date is

 382 3 January 23, 2009.

 382 4 Do you see that?

 382 5 A. I do.

382:15 - 383:4 Douglas Moses 12.05.2019 

 382 15 Q. Now, this involves a discussion

 382 16 that you were involved in, correct?

 382 17 A. It appears so, yes.

 382 18 Q. And this is in 2009. Just to

 382 19 put this in perspective, we know, as we've

 382 20 discussed, the Combat Arms version 2 started

 382 21 being sold to the military, I think you said,

 382 22 in 1999; is that correct?

 382 23 A. I think that's the first date,

 382 24 yes.

 382 25 Q. And this e-mail is ten years

 383 1 after that product had been sold -- first

 383 2 sold to the military and had been continued

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Douglas Moses 12.05.2019 85

 383 3 to be sold to the military, correct?

 383 4 A. Yes.

383:5 - 383:13 Douglas Moses 12.05.2019 

 383 5 Q. Okay. And we saw earlier that

 383 6 this was being sold in large volumes because

 383 7 there was the Iraq war, there was the

 383 8 Afghanistan war, and surges and all those

 383 9 things had been happening. So thousands, or

 383 10 tens of thousands, of soldiers had been

 383 11 receiving these Combat Arms Earplugs,

 383 12 correct?

 383 13 A. Between the various versions.

Re: [383:5-383:13]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

383:14 - 383:19 Douglas Moses 12.05.2019 

 383 14 Q. Right.

 383 15 And tens of thousands had been

 383 16 actually using the Combat Arms version 2,

 383 17 correct?

 383 18 MR. MORRISS: Object to form.

 383 19 THE WITNESS: Likely.

Re: [383:14-383:19]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402); Assumes 

(611, 403)

DEFER RULING

385:8 - 386:4 Douglas Moses 12.05.2019 

 385 8 This states on 1/13/09, "A

 385 9 conversation between Jeff Hamer, Brian Myers,

 385 10 Doug Moses" -- that's you -- "and Elliott

 385 11 Berger transpired over the issue of

 385 12 additional testing on the version 2 Combat

 385 13 Arms Earplug. The issue under review was the

 385 14 NRR of zero, zero, and 5 on three different

 385 15 valid tests and whether zero was a suitable

 385 16 NRR to retain for that version of the

 385 17 product. The decision was made to abide by

 385 18 the first test of zero, as confirmed by the

 385 19 second test four years later."

 385 20 Do you see that?

 385 21 A. I do.

 385 22 Q. So what that is saying -- I

 385 23 think I'm summarizing it correctly -- is that

 385 24 there had been three tests on the yellow end,

 385 25 or the open end, of the Combat Arms

 386 1 version 2, and the NRRs that had been

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Douglas Moses 12.05.2019 86

 386 2 obtained were a zero -- actually it was a

 386 3 negative 2 -- and a zero and then a 5,

 386 4 correct?

386:6 - 387:1 Douglas Moses 12.05.2019 

 386 6 THE WITNESS: I believe that's

 386 7 correct.

 386 8 QUESTIONS BY MR. CARTMELL:

 386 9 Q. Okay. And the question for

 386 10 you-all that was being posed was, now that we

 386 11 have this test showing the NRR as a 5 on that

 386 12 end and we have two tests that show zero,

 386 13 should we change the NRR to 5 or not.

 386 14 I mean, that was part of the

 386 15 discussion, I take it, correct?

 386 16 A. I don't remember the

 386 17 discussion, but that appears to be the

 386 18 reading of it here.

 386 19 Q. Okay. And ultimately your lab,

 386 20 involving Mr. Berger, who we've talked a lot

 386 21 about, and Mr. Kieper, who we've talked a lot

 386 22 about, they decided to keep the zero,

 386 23 correct?

 386 24 A. I don't know who decided. I

 386 25 don't know who -- I don't know who decided

 387 1 that.

387:9 - 387:10 Douglas Moses 12.05.2019 

 387 9 Q. It looks like you were involved

 387 10 in that decision as well?

387:12 - 388:2 Douglas Moses 12.05.2019 

 387 12 THE WITNESS: I don't know if I

 387 13 was involved in the decision. It

 387 14 appears that I was involved in the

 387 15 discussion.

 387 16 QUESTIONS BY MR. CARTMELL:

 387 17 Q. Okay. If you go to the last

 387 18 paragraph, "Of further concern was the

 387 19 question of what to do with the new, fourth

 387 20 test."

 387 21 Do you see that?

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Douglas Moses 12.05.2019 87

 387 22 A. I do.

 387 23 Q. Okay. And in fact, you know, I

 387 24 take it, that there was a fourth test that

 387 25 was performed on the yellow end of the Combat

 388 1 Arms version 2, correct?

 388 2 A. I don't recall that.

388:21 - 388:23 Douglas Moses 12.05.2019 

 388 21 Q. The yellow end is the side

 388 22 where you want the lowest numbers possible.

 388 23 A. I understand.

388:24 - 389:1 Douglas Moses 12.05.2019 

 388 24 Q. A zero is a lot lower than 5,

 388 25 isn't it?

 389 1 A. It's five lower, yes.

Re: [388:24-389:1]

Def Obj 701

OVERRULED

389:2 - 389:13 Douglas Moses 12.05.2019 

 389 2 Q. In fact, if you had a 5 that

 389 3 you changed to this because of your test

 389 4 where you found it was a 5, you wouldn't be

 389 5 able to say in your brochures that it would

 389 6 allow you to hear low-level noises like

 389 7 voices, those sort of things, correct?

 389 8 MR. MORRISS: Object to form.

 389 9 THE WITNESS: That language

 389 10 would have been proposed by the lab

 389 11 and adopted. I don't know what

 389 12 language they would have put in for

 389 13 that.

Re: [389:2-389:13]

Def Obj Argumentative (611, 403); 

Vague (611, 403); Relevance (401, 402)

OVERRULED

390:11 - 390:25 Douglas Moses 12.05.2019 

 390 11 Q. So let's look what your lab did

 390 12 with respect to testing on the yellow end,

 390 13 and I'll refer you back to Exhibit 22.

 390 14 We looked at this chart before

 390 15 on page 40, and you see that we're now

 390 16 talking about the open end, or the yellow

 390 17 end, of the Combat Arms Earplug.

 390 18 And you see the first test that

 390 19 was ten subjects -- let's see, it's

 390 20 highlighted -- was the labeling test. That

 390 21 was the first one, in January of 2000.

Re: [390:11-390:25]

Def Obj Relevance (401, 402)

OVERRULED

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Douglas Moses 12.05.2019 88

 390 22 And the actual result was a

 390 23 negative 2, but they labeled it as zero,

 390 24 correct?

 390 25 A. Yes.

392:1 - 392:8 Douglas Moses 12.05.2019 

 392 1 Q. Did you know, or did anybody at

 392 2 the company tell you when you started as a

 392 3 marketing manager, that actually the test

 392 4 resulted -- the test results with the yellow

 392 5 end of this showed that it was a negative 2

 392 6 and not a zero, but they decided to put it at

 392 7 zero?

 392 8 A. I don't recall that.

392:9 - 392:19 Douglas Moses 12.05.2019 

 392 9 Q. So that was the first test on

 392 10 the open end, and then as we've discussed,

 392 11 there was a second test on the open end in

 392 12 June of 2004, and that one was a negative 1.

 392 13 So it actually also found that

 392 14 this yellow plug was amplifying noise,

 392 15 correct?

 392 16 MR. MORRISS: Object to form.

 392 17 THE WITNESS: Again, I might be

 392 18 speaking out of turn, but I believe

 392 19 that's what amplification is.

Re: [392:9-392:19]

Def Obj 701; Foundation (602)

OVERRULED

392:20 - 393:3 Douglas Moses 12.05.2019 

 392 20 QUESTIONS BY MR. CARTMELL:

 392 21 Q. Okay.

 392 22 A. Okay.

 392 23 Q. No, you've told us that, and I

 392 24 think I agree with you.

 392 25 A. I don't know, but...

 393 1 Q. At any rate, did you know that

 393 2 the second test also found that it was

 393 3 amplifying noise, this yellow end?

393:5 - 393:9 Douglas Moses 12.05.2019 

 393 5 THE WITNESS: That it received

 393 6 a negative 1?

 393 7 QUESTIONS BY MR. CARTMELL:

Case 7:20-cv-00137-MCR-GRJ Document 91-1 Filed 03/18/21 Page 141 of 169
Douglas Moses 12.05.2019 89

 393 8 Q. Yes.

 393 9 A. No, I didn't know.

393:10 - 395:20 Douglas Moses 12.05.2019 

 393 10 Q. Okay. So now there's been two

 393 11 tests.

 393 12 And then there was actually a

 393 13 third test, is that correct, on April 2006?

 393 14 Do you see that?

 393 15 A. I do.

 393 16 Q. Then they tested it, and at

 393 17 that time they found a 5, correct?

 393 18 A. Yes.

 393 19 Q. Now, there were other tests

 393 20 that weren't ten subjects, but there were

 393 21 five subjects. And, for example, they got a

 393 22 4 with five subjects in June of 2005; they

 393 23 got a 6 with five subjects in June of 2005;

 393 24 and they got another 5 with five subjects in

 393 25 September of 2005.

 394 1 Do you see that?

 394 2 A. I do.

 394 3 Q. So of these tests, starting

 394 4 with the labeling test of zero, they had one,

 394 5 two, three, four, five, six tests, and four

 394 6 of the six tests had showed that in fact the

 394 7 attenuation was 4 or greater, not zero,

 394 8 correct?

 394 9 A. That's what appears on here.

 394 10 Q. Okay.

 394 11 A. Again, this is not my document.

 394 12 You would have to have someone explain it to

 394 13 you.

 394 14 Q. Okay. Let me refer you,

 394 15 actually, to page -- I'm going to try to find

 394 16 it here -- page 11.

 394 17 Page 11 of this document put

 394 18 together by Mr. Kieper and Mr. Berger, titled

 394 19 "The development of the Combat Arms Earplug

 394 20 version 1 through version 4," is talking

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 394 21 about the testing that was done on the yellow

 394 22 end of the Combat Arms Earplug version 2,

 394 23 correct?

 394 24 A. It appears so, yes, uh-huh.

 394 25 Q. Okay. And it says, "Figure 15

 395 1 is a graph of both the IL," orange line, "and

 395 2 the REAT," that's NRR testing values, green

 395 3 and blue markings, "from the labeling test

 395 4 016 and a later repeat test of the same

 395 5 plug."

 395 6 And then it says, "Comment: We

 395 7 are unsure of the correct REAT, or NRR, for

 395 8 the open end of the Combat Arms Earplug

 395 9 version 2, and in fact, Figure 15 graph

 395 10 suggests that later REAT tests are the more

 395 11 appropriate -- are more appropriate."

 395 12 Do you see that?

 395 13 A. I see those words, yes.

 395 14 Q. So let me see if I'm correct

 395 15 about this.

 395 16 But in 2000 your company

 395 17 labeled, pursuant to EPA regulations, this

 395 18 Combat Arms yellow end as having an NRR of

 395 19 zero, correct?

 395 20 A. I believe so, yes.

396:6 - 397:1 Douglas Moses 12.05.2019 

 396 6 Q. And then they did four more

 396 7 tests, some with five people, some with ten

 396 8 people, and all of those tests showed that

 396 9 the NRR was 4 or greater, correct?

 396 10 A. On some of the partial panels,

 396 11 yes.

 396 12 Q. Okay. And also on a test of

 396 13 ten, correct?

 396 14 A. That's right.

 396 15 Q. It was a 5, correct?

 396 16 A. Yes.

 396 17 Q. Okay. And here we are in 2010,

 396 18 July of 2010 is when this report is put

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 396 19 together, and the lab members, Kieper and

 396 20 Berger, say, comment, they don't even know.

 396 21 At that point they're unsure of what the NRR

 396 22 is, correct?

 396 23 A. Those are the words here.

 396 24 Again, you would have to talk to those guys

 396 25 about what this means because I am not in my

 397 1 field here, reading this.

397:2 - 397:8 Douglas Moses 12.05.2019 

 397 2 Q. Did anyone tell you that your

 397 3 lab people, the people in the lab, the

 397 4 testers of the product, this Combat Arms

 397 5 yellow end, in 2010 were unsure of what the

 397 6 actual NRR for this product was?

 397 7 A. I don't recall a conversation

 397 8 like that.

397:9 - 397:22 Douglas Moses 12.05.2019 

 397 9 Q. But yet you were approving

 397 10 labeling and marketing pieces and brochures

 397 11 that were going to the military, and you were

 397 12 trying to sell as many of these that were

 397 13 possible to our soldiers. And yet your own

 397 14 lab had no idea or was unsure, according to

 397 15 them, as 2010 what the NRR was, correct?

 397 16 MR. MORRISS: Object to form.

 397 17 THE WITNESS: It appears from

 397 18 this comment that they were unsure of

 397 19 the REAT test --

 397 20 QUESTIONS BY MR. CARTMELL:

 397 21 Q. Okay.

 397 22 A. -- findings.

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 397 23 Q. But yet you were telling the

 397 24 military and soldiers that there was a zero

 397 25 NRR at all times with this product up until

 398 1 2015, weren't you?

 398 2 A. That was what the label was,

 398 3 and that was what was approved by the lab for

 398 4 the literature and other assets.

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398:5 - 399:5 Douglas Moses 12.05.2019 

 398 5 Q. Wouldn't you have wanted to

 398 6 know as a marketing manager that was

 398 7 reviewing these materials and approving these

 398 8 materials, sending marketing claims to

 398 9 soldiers and other customers, saying, look,

 398 10 on the yellow end we don't attenuate noise at

 398 11 all, so you should have situational awareness

 398 12 and you should be able to hear low voices,

 398 13 shouldn't you have known that actually your

 398 14 own lab was getting higher results, and they

 398 15 were saying in 2010 they didn't even know

 398 16 what the NRR should be?

 398 17 MR. MORRISS: Object to form.

 398 18 QUESTIONS BY MR. CARTMELL:

 398 19 Q. Shouldn't you have known about

 398 20 that?

 398 21 A. I don't know. I know that I

 398 22 rely on the lab to provide these numbers to

 398 23 me for literature and other assets.

 398 24 Q. Knowing what you know now,

 398 25 wouldn't you have liked to have known that?

 399 1 MR. MORRISS: Object to form.

 399 2 THE WITNESS: I would have -- I

 399 3 would have liked to have known and had

 399 4 a conversation, at least, to

 399 5 understand it better.

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417:20 - 417:20 Douglas Moses 12.05.2019 

 417 20 Q. I hand you that.

417:21 - 418:15 Douglas Moses 12.05.2019 

 417 21 This is another copy, which I

 417 22 will represent to you from the files -- this

 417 23 is another copy of the insert in May of 2012

 417 24 that was listed as the final version of the

 417 25 instructions for use for the Combat Arms

 418 1 version 2. It's in May of 2012, you'll see.

 418 2 And, again, the instructions

 418 3 for use no longer include any instructions

 418 4 that the users should roll back the rings on

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 418 5 the outward-facing plug when inserting the

 418 6 plug.

 418 7 Do you see that?

 418 8 A. I want to look at it. I don't

 418 9 know where this came from.

 418 10 Is this from an e-mail or is

 418 11 this --

 418 12 Q. This is from the files.

 418 13 A. Okay. All right. Thank you.

 418 14 I'm sorry, can you restate your

 418 15 question, please?

419:5 - 419:11 Douglas Moses 12.05.2019 

 419 5 Q. You see that the instructions

 419 6 for use in May of 2012 no longer, as we said,

 419 7 includes the fitting tip that describes

 419 8 needing to fold back the rings on the

 419 9 outward-facing plug when the plug is being

 419 10 inserted, correct?

 419 11 A. I don't see that language here.

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 421 7 Q. Okay. And the fitting tip that

 421 8 had been in the version of the insert for

 421 9 many, many years is taken out.

 421 10 Why was that?

 421 11 A. I don't know.

 421 12 Q. You have no idea as you sit

 421 13 here today?

 421 14 A. I don't.

 421 15 Q. Nobody ever told you why they

 421 16 were taking out the instructions that had

 421 17 been in for 12 years telling the users, upon

 421 18 insertion, that fitting would be improved if

 421 19 they rolled back the rings of the

 421 20 outward-facing plug?

 421 21 A. I don't recall a conversation

 421 22 like that.

 421 23 Q. No conversations with anybody

 421 24 about that?

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 421 25 A. I'm not saying that I didn't

 422 1 have a conversation. I just don't recall it.

422:2 - 422:15 Douglas Moses 12.05.2019 

 422 2 Q. We've seen that for proper

 422 3 fitting, according to the flange report and

 422 4 testing, that there needed to be flanges

 422 5 rolled back upon insertion.

 422 6 If you had known that about the

 422 7 flange report, would you have allowed that to

 422 8 be taken out?

 422 9 MR. MORRISS: Object to the

 422 10 form.

 422 11 THE WITNESS: I likely would

 422 12 have taken the recommendations of the

 422 13 lab and the technical team,

 422 14 regardless. That's -- I rely on them

 422 15 to provide those type of instructions.

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 422 17 Q. Okay. Well, there's testing at

 422 18 your company that says that if the flanges

 422 19 are not rolled back upon insertion, you can't

 422 20 get a good fit, correct?

 422 21 A. In some situations, yes. In

 422 22 some ears, yes.

 422 23 Q. There's testing in your company

 422 24 files at this time, and had been for

 422 25 12 years, that said if the flanges weren't

 423 1 rolled back, with some people it could become

 423 2 imperceptibly loosened, correct?

 423 3 MR. MORRISS: Object to form.

 423 4 THE WITNESS: Paraphrasing what

 423 5 we've looked at.

 423 6 QUESTIONS BY MR. CARTMELL:

 423 7 Q. Okay. And now you have

 423 8 instructions for use that don't mention

 423 9 anything about that, correct?

 423 10 A. That language was removed, it

 423 11 appears, in the May 2012 insert.

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429:5 - 429:6 Douglas Moses 12.05.2019 

 429 5 MR. CARTMELL: Thank you for

 429 6 your time. I think that's all I have.

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440:3 - 442:10 Douglas Moses 12.06.2019 

 440 3 Q. Mr. Moses, how are you?

 440 4 A. I'm fine. Thank you.

 440 5 Q. Could you tell the jury where

 440 6 you live?

 440 7 A. I live in Indianapolis,

 440 8 Indiana.

 440 9 Q. And how long have you lived

 440 10 there?

 440 11 A. About 25 years.

 440 12 Q. Can you tell the jury a little

 440 13 bit about where you grew up, where you went

 440 14 to high school, to get a little bit of flavor

 440 15 about yourself?

 440 16 A. I grew up in Flora, Illinois,

 440 17 just downstate. I went to Flora High School.

 440 18 Q. Are you married?

 440 19 A. I am married.

 440 20 Q. For how long?

 440 21 A. I've been married for 20 years.

 440 22 Q. Do you have children?

 440 23 A. I do.

 440 24 Q. How many?

 440 25 A. I have three children.

 441 1 Q. And what are their ages?

 441 2 A. 16, 12 and 6.

 441 3 Q. After your graduation from high

 441 4 school, were you able to continue your

 441 5 education?

 441 6 A. I was.

 441 7 Q. And where did you go and what

 441 8 kind of degree did you get?

 441 9 A. I went to Southern Illinois

 441 10 University in Carbondale, and I have a degree

 441 11 in political science.

 441 12 Q. And what year did you graduate

 441 13 from college?

 441 14 A. 1988.

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 441 15 Q. Did you work during the time

 441 16 that you attended college?

 441 17 A. I did.

 441 18 Q. And what did you do?

 441 19 A. I co-owned a landscaping

 441 20 company, and I worked nights and weekends.

 441 21 Q. Did you continue your education

 441 22 after you graduated from college?

 441 23 A. I did.

 441 24 Q. And what did you do?

 441 25 A. I went to Memphis State

 442 1 University Law School.

 442 2 Q. Okay. What sort of led you to

 442 3 law school?

 442 4 A. I have family members that are

 442 5 lawyers.

 442 6 Q. Was your dad a lawyer?

 442 7 A. My dad was a lawyer.

 442 8 Q. Did you complete the law school

 442 9 program?

 442 10 A. I did not.

442:16 - 445:4 Douglas Moses 12.06.2019 

 442 16 Q. Have you had any other formal

 442 17 education since then?

 442 18 A. I have.

 442 19 Q. Okay. Tell me a little bit

 442 20 about that.

 442 21 A. I attended Butler University in

 442 22 Indianapolis, and I have an MBA with a

 442 23 concentration in marketing.

 442 24 Q. And when did you obtain that

 442 25 degree?

 443 1 A. In 2001.

 443 2 Q. Okay. I assume you were

 443 3 working during the time you were in the MBA

 443 4 program?

 443 5 A. I was.

 443 6 Q. Okay. Could you give us just a

 443 7 little bit of a sample of your work history

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 443 8 before you went to work at Aearo?

 443 9 A. Sure.

 443 10 I moved to Indianapolis to take

 443 11 a job with the Indiana Secretary of State.

 443 12 And I worked for the State for about four and

 443 13 a half years. At the Secretary of State's

 443 14 office, I was the chief deputy director in

 443 15 the corporations division.

 443 16 Q. Did you at some point take

 443 17 another position with the State of Indiana?

 443 18 A. I did.

 443 19 Q. And what did you do?

 443 20 A. I worked for the Department of

 443 21 Commerce as a project manager for new and

 443 22 existing businesses.

 443 23 Q. And how long were you an

 443 24 employee of the State of Indiana?

 443 25 A. About four and a half years.

 444 1 Q. And then did you -- can you

 444 2 give us a little bit of a flavor of other

 444 3 places where you worked before going to

 444 4 Aearo?

 444 5 A. I worked at Conseco, an

 444 6 insurance company, for a very short period of

 444 7 time until I went to the -- an airline called

 444 8 American Trans Air. I started working on the

 444 9 year 2000 team in the technology team and

 444 10 then in marketing.

 444 11 Q. And how long were you at

 444 12 AirTran; is that right?

 444 13 A. Yeah, ATA, American Trans Air.

 444 14 About three and a half years, four years.

 444 15 Q. And why did you leave that

 444 16 position?

 444 17 A. It was right after 9/11, and

 444 18 there was immediate downsizing in the airline

 444 19 business.

 444 20 Q. Any other work before joining

 444 21 Aearo?

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Douglas Moses 12.06.2019 5

 444 22 A. Yes, I left -- I started

 444 23 working at Weaver Popcorn after the airline.

 444 24 Q. Okay. And how long were you

 444 25 there?

 445 1 A. About four or five years.

 445 2 Q. Okay. What year did you join

 445 3 Aearo?

 445 4 A. In March of 2005.

446:23 - 450:4 Douglas Moses 12.06.2019 

 446 23 Q. When did you first start to

 446 24 work at Aearo?

 446 25 A. End of March 2005.

 447 1 Q. And can you briefly describe

 447 2 the kinds of positions and job

 447 3 responsibilities you've had at Aearo?

 447 4 A. I started working at Aearo on

 447 5 the head and face, like hard hats and face

 447 6 shields, product lines, and also I had

 447 7 eyewear as well.

 447 8 Q. Okay. And then what other

 447 9 roles and responsibilities have you had?

 447 10 A. In the fall of 2006 I joined a

 447 11 military SBU, and I also had responsibilities

 447 12 for the Combat Arms Earplugs.

 447 13 Q. And did that position or job

 447 14 responsibility change at some point?

 447 15 A. It did.

 447 16 Q. And what did you do?

 447 17 A. In the fall of 2012, I began

 447 18 working on the Peltor Communication Headset

 447 19 line.

 447 20 Q. And is that what you're doing

 447 21 today?

 447 22 A. It is.

 447 23 Q. You were asked questions

 447 24 yesterday about your involvement with the

 447 25 Combat Arms version 2 dual-ended earplug.

 448 1 Do you recall those questions?

 448 2 A. I do.

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 448 3 Q. Did you play any role in the

 448 4 development of the version 2 dual-ended plug?

 448 5 A. No.

 448 6 Q. Did you have any responsibility

 448 7 for sales or marketing of the dual-ended

 448 8 product at the time it was first sold by

 448 9 Aearo?

 448 10 A. No.

 448 11 Q. Were you working for Aearo at

 448 12 the time the product first went on sale?

 448 13 A. No.

 448 14 Q. Had you looked at records that

 448 15 indicate when the product first was sold to

 448 16 the military?

 448 17 A. I have.

 448 18 Q. And approximately when was

 448 19 that?

 448 20 A. The summer of 1999.

 448 21 Q. After you began working at

 448 22 Aearo, when did you first take on any

 448 23 responsibility for the Combat Arms Earplug

 448 24 line?

 448 25 A. In the fall of 2006.

 449 1 Q. And when you started with the

 449 2 Combat Arms line in the fall of 2006, was the

 449 3 version 2 dual-ended plug available for

 449 4 purchase?

 449 5 A. It was.

 449 6 Q. Were there other versions of

 449 7 the plug either available for sale or in

 449 8 development?

 449 9 A. Yes.

 449 10 Q. And which? Was there one

 449 11 available, or was there in development?

 449 12 A. The Combat Arms version 3 was

 449 13 in development.

 449 14 Q. Okay. And can you describe

 449 15 your marketing focus at the time you took

 449 16 responsibility for the Combat Arms Earplug

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 449 17 line?

 449 18 A. My focus shifted to launching

 449 19 the Combat Arms 3 version.

 449 20 Q. And when did the Combat Arms

 449 21 version 3 plug launch or become available for

 449 22 sale?

 449 23 A. I believe it was in 2007.

 449 24 Q. And once the version 3 product

 449 25 was on the market, did that change the

 450 1 marketing focus of the company?

 450 2 A. Yes, it had me focusing on

 450 3 building literature and building the launch

 450 4 packet for Combat Arms version 3.

450:9 - 450:14 Douglas Moses 12.06.2019 

 450 9 Q. Okay. At some point did you

 450 10 lose primary responsibility for the Combat

 450 11 Arms version 2, 3 and 4 plugs?

 450 12 A. Yes.

 450 13 Q. And when was that?

 450 14 A. In the fall of 2012.

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 450 20 Q. Okay. Can you describe for the

 450 21 jury the kind of military people you

 450 22 generally had interaction with?

 450 23 A. Military audiologists or

 450 24 audiologists that were in uniform, and

 450 25 sometimes audiology techs.

 451 1 Q. So did the military have their

 451 2 own dedicated audiologists working with

 451 3 military personnel?

 451 4 A. They did.

 451 5 Q. Okay. Did the various branches

 451 6 of the military have their own dedicated

 451 7 audiologist?

 451 8 A. Yes, three of them did.

 451 9 Q. Okay. When you say "three of

 451 10 them did," explain that to me.

 451 11 A. So the Army had audiologists.

 451 12 I've talked to Air Force audiologists and

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 451 13 Navy audiologists. The Marine Corps, from my

 451 14 understanding, I don't know at the time, was

 451 15 they relied on the Navy personnel to support

 451 16 them as an audiologist.

 451 17 Q. From your interaction with the

 451 18 various military personnel, did you become

 451 19 aware of whether the military had a hearing

 451 20 conservation program?

 451 21 A. Yes.

 451 22 Q. And what was your understanding

 451 23 about the military hearing conservation

 451 24 program?

 451 25 A. They -- audiologists at many of

 452 1 the largest bases, they were assigned to

 452 2 those bases to run an audiology clinic.

 452 3 Q. And what kind of functions were

 452 4 you made aware of that the hearing

 452 5 conservation program and these dedicated

 452 6 audiologists engaged in?

 452 7 A. They could be engaged in

 452 8 hearing tests. Could be annual tests, it

 452 9 could be pre-deployment or post-deployment

 452 10 hearing tests. They were involved in fitting

 452 11 and the hearing protection product selection

 452 12 with the various troops.

 452 13 Q. Now, were you working for Aearo

 452 14 in the 1999, 2000, when the dual-ended Combat

 452 15 Arms Earplug was first placed on the market?

 452 16 A. No.

 452 17 Q. Do you know what information

 452 18 was provided to Doug Ohlin or to other

 452 19 military personnel about the testing of the

 452 20 dual-ended Combat Arms version 2 plug?

 452 21 A. No.

 452 22 Q. Do you know what instructions

 452 23 were given regarding fitting of the plug to

 452 24 Mr. Ohlin or to other military personnel

 452 25 about the Combat Arms version 2 plug in that

 453 1 '99, 2000, early 2000 time frame?

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 453 2 A. I don't.

 453 3 Q. Okay. Do you know what

 453 4 specific instructions or directions Mr. Ohlin

 453 5 or the military were provided by Aearo about

 453 6 the product in the early years?

 453 7 A. I don't.

 453 8 Q. Now, you were asked questions

 453 9 about the process of reviewing literature,

 453 10 labels and instructions.

 453 11 Do you recall that testimony?

 453 12 A. I do.

 453 13 Q. I want to talk a little more

 453 14 about that, if we could.

 453 15 A. Okay.

 453 16 Q. Let's start with Aearo. Can

 453 17 you describe the general process of reviewing

 453 18 written materials like literature, packaging

 453 19 and instructions during the time you were at

 453 20 Aearo?

 453 21 A. Yes. Various stakeholders -- a

 453 22 piece of literature would be routed to

 453 23 various stakeholders. The various

 453 24 stakeholders would review it and sign off on

 453 25 it.

 454 1 Q. And who were the -- give me

 454 2 some examples of the stakeholders that would

 454 3 been involved in that process.

 454 4 A. It could have been marketing,

 454 5 myself or others like me, a packaging

 454 6 engineer, technology or lab or R&D personnel.

 454 7 Legal would have looked at it as well.

 454 8 Q. Okay. Did each of the

 454 9 stakeholders have a particular focus that

 454 10 they were looking at with each of these

 454 11 pieces of written material, whether it was a

 454 12 literature or label or instruction?

454:15 - 457:24 Douglas Moses 12.06.2019 

 454 15 THE WITNESS: Yes.

 454 16 QUESTIONS BY MR. MORRISS:

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 454 17 Q. Okay. For example, as it

 454 18 relates to instructions, who would have had

 454 19 the primary responsibility for reviewing

 454 20 instructions that might ultimately be

 454 21 associated with a product?

 454 22 A. The lab or the technology team.

 454 23 Q. Would marketing have played a

 454 24 primary role with instructions?

 454 25 A. No.

 455 1 Q. When you went to 3M, did the

 455 2 review process change any?

 455 3 A. It did.

 455 4 Q. Okay. And tell the jury how it

 455 5 changed.

 455 6 A. There was an automated system

 455 7 called SS&PS. Documents were routed through

 455 8 that automated system, and an e-mail was

 455 9 generated to each person when it was their

 455 10 turn to approve.

 455 11 Q. Did you continue to have

 455 12 similar stakeholders?

 455 13 A. We did. A few more added as

 455 14 well.

 455 15 Q. Okay. In terms of the

 455 16 technical label and instructions, who would

 455 17 have had responsibility for reviewing the

 455 18 written materials related to that?

 455 19 A. Technical service would have

 455 20 taken the lead and lab would have supported

 455 21 it.

 455 22 Q. Would marketing have played a

 455 23 primary role in review of instructions or the

 455 24 technical aspects of a label?

 455 25 A. No.

 456 1 Q. Now, I want you to take a look,

 456 2 if you would, at an exhibit that was used

 456 3 yesterday. It was Exhibit Number 23.

 456 4 A. Okay.

 456 5 Q. And just tell me when you have

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Douglas Moses 12.06.2019 11

 456 6 that in front of you.

 456 7 A. I do.

 456 8 Q. All right. And do you recall

 456 9 that plaintiff's counsel asked you a series

 456 10 of questions about this document?

 456 11 A. I do.

 456 12 Q. Okay. And on the first page

 456 13 you can see it's an e-mail that has a date of

 456 14 May 28, 2009, correct?

 456 15 A. Yes.

 456 16 Q. All right. Now, if you'll turn

 456 17 over to the e-mail that begins the chain, if

 456 18 you'll go to page 4.

 456 19 A. Okay.

 456 20 Q. Is this the e-mail from Doug

 456 21 Ohlin to you that we talked about yesterday

 456 22 where he described frustration with the

 456 23 reduced NRR for the new version of the CAE?

 456 24 A. Yes.

 456 25 Q. Okay. And if you look at the

 457 1 last sentence on that page 4, does he have a

 457 2 sentence that he puts in bold and underlines?

 457 3 A. Yes.

 457 4 Q. And if you could read the first

 457 5 underlined and bold sentence for me.

 457 6 A. "The sized Combat Arms Earplug

 457 7 comes along, and suddenly there is a concern

 457 8 for comfort."

 457 9 Q. Okay. So in bold and

 457 10 underlined, he is raising a question about

 457 11 consideration of comfort for the plug,

 457 12 correct?

 457 13 MR. CARTMELL: Object to the

 457 14 form.

 457 15 THE WITNESS: Yes.

 457 16 QUESTIONS BY MR. MORRISS:

 457 17 Q. Okay. Is the sentence that you

 457 18 just read in bold?

 457 19 A. Yes.

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 457 20 Q. Is the sentence underlined?

 457 21 A. Yes.

 457 22 Q. Does the sentence indicate a

 457 23 concern regarding comfort?

 457 24 MR. CARTMELL: Object to the

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 458 1 THE WITNESS: Yes.

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 458 7 Q. All right. Now, if you'll next

 458 8 go to Exhibit Number 32.

 458 9 (Moses Exhibit 32 marked for

 458 10 identification.)

 458 11 QUESTIONS BY MR. MORRISS:

 458 12 Q. And if you'll look down at the

 458 13 middle of this page, is this an e-mail from

 458 14 Doug Ohlin to you dated May 29, 2009?

 458 15 A. Yes.

 458 16 Q. And is this one day following

 458 17 the e-mail that we just discussed that

 458 18 Mr. Ohlin had written to you?

 458 19 A. Yes.

 458 20 Q. Okay. And if you look at the

 458 21 subject line, is the subject line "RR for New

 458 22 CAE"?

 458 23 A. Yes.

 458 24 Q. And is that the same subject

 458 25 line of the previous e-mail?

 459 1 A. Similar, yes.

 459 2 Q. Does Mr. Ohlin report whether

 459 3 or not he had had any communications with

 459 4 personnel at the Aearo lab, the technical

 459 5 people?

 459 6 A. He does.

 459 7 Q. And does he indicate in this

 459 8 e-mail who he talked to?

 459 9 A. Elliott and Ron.

 459 10 Q. And who are Elliott and Ron?

 459 11 A. Elliott Berger and Ron Kieper.

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 459 12 Q. And what did Mr. Ohlin report

 459 13 about his conversation with the lab or

 459 14 technical people concerning this NRR for the

 459 15 new CAE?

 459 16 A. It reads, "They assured me that

 459 17 attention" -- excuse me. "They assured me

 459 18 that attenuation was their primary concern in

 459 19 the evaluation, and comfort was only

 459 20 secondary or tertiary."

 459 21 Q. So this concern or question

 459 22 that Mr. Ohlin had raised in the earlier

 459 23 e-mail, he had a conversation about comfort

 459 24 with the lab and technical people?

460:2 - 460:8 Douglas Moses 12.06.2019 

 460 2 THE WITNESS: Yes.

 460 3 QUESTIONS BY MR. MORRISS:

 460 4 Q. Okay. And did Mr. Ohlin

 460 5 indicate that he had been assured by the lab

 460 6 people in his conversation with him?

 460 7 MR. CARTMELL: Object to form.

 460 8 THE WITNESS: Yes.

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 460 22 Q. In the last sentence of Exhibit

 460 23 Number 32, does Mr. Ohlin express any

 460 24 feelings regarding his earlier e-mail

 460 25 exchange with you?

 461 1 A. He does.

 461 2 Q. And what does he say?

 461 3 A. He writes, "I hope I didn't

 461 4 cause any problems for you, but that original

 461 5 explanation for fitting for comfort really

 461 6 threw me."

 461 7 Q. Now, if you will go to an

 461 8 exhibit that was used by plaintiff's counsel

 461 9 yesterday, it's Exhibit Number 24.

 461 10 Do you have that in front of

 461 11 you?

 461 12 A. I do.

 461 13 Q. And this is, again, an exhibit

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 461 14 that was at least used in part with you

 461 15 yesterday?

 461 16 A. Yes.

 461 17 Q. Okay. If you'll look at the --

 461 18 sort of the middle of Exhibit 24, is there an

 461 19 e-mail from Mr. Berger to various people,

 461 20 including you and Doug Ohlin and the lab,

 461 21 where he attaches a document?

 461 22 A. Yes.

 461 23 Q. And if you turn over a couple

 461 24 of pages, is the attachment included with

 461 25 this e-mail?

 462 1 A. Yes.

 462 2 Q. All right. And can you

 462 3 describe who this memorandum or attachment is

 462 4 to and from?

 462 5 A. It is from Elliott Berger to

 462 6 Jeff Hamer, Doug Moses, Doug Ohlin, Marc

 462 7 Santoro and Brian Myers.

 462 8 Q. And the date of this memorandum

 462 9 is what?

 462 10 A. June 9, 2009.

 462 11 Q. And the re: of this, or the

 462 12 subject line, is what?

 462 13 A. "Revised Test Protocol for CAE

 462 14 Version 4" -- or "v4."

 462 15 Q. And this would have been

 462 16 roughly 10 to 12 days after the conversation

 462 17 involving Mr. Ohlin and the lab concerning

 462 18 the comfort issue with the new testing,

 462 19 correct?

 462 20 A. Yes.

 462 21 Q. Okay. Now, in Exhibit 24, does

 462 22 Mr. Berger describe what the E-A-RCAL lab had

 462 23 been doing with regard to the testing

 462 24 protocol?

 462 25 A. Yes.

 463 1 Q. And what does it say that had

 463 2 been done previously?

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 463 3 A. It reads, "Based on visual

 463 4 assessment with the three tip sizes, Ron

 463 5 selected a plug that would fit the ear canal

 463 6 using the largest size that would seal and

 463 7 provide reasonable comfort."

 463 8 Q. All right. Now, does this memo

 463 9 also describe the procedure that the Army had

 463 10 used to fit the plugs in their operations?

 463 11 A. It does.

 463 12 Q. And is that under the section,

 463 13 quote, "Army Procedure," close quote?

 463 14 A. Yes.

 463 15 Q. Does it say who provided that

 463 16 information?

 463 17 A. Ohlin.

 463 18 Q. And what information about the

 463 19 Army procedure is contained in this June 9,

 463 20 2009 memorandum?

 463 21 A. It reads, "Ohlin says that

 463 22 USACHPPM method is to size visually using the

 463 23 smallest size that allows all flanges to fit

 463 24 in the ear canal while providing a seal but

 463 25 optimizing comfort."

 464 1 Q. So the What We Did section,

 464 2 which would be the E-A-RCAL lab, used the

 464 3 largest tip, correct?

 464 4 A. Yes.

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 464 11 Q. Well, let me -- just since

 464 12 there's an objection, just read the entire

 464 13 paragraph under the quote, "Army Procedure,"

 464 14 close quote, that's in this memorandum of

 464 15 June 9, 2009.

 464 16 A. It reads, "Ohlin says that

 464 17 USACHPPM method is to size visually using

 464 18 smallest size that allows all flanges to fit

 464 19 in the ear canal while providing a seal but

 464 20 optimizing comfort. This would not normally

 464 21 be our NRR test method since we are usually

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 464 22 trying to optimize noise reduction rather

 464 23 than comfort. Oddly, in this test, it

 464 24 appears that for at least three of the

 464 25 subjects the comfort-based approach would

 465 1 tend towards obtaining a higher measured

 465 2 NRR."

 465 3 Q. Now, does Mr. Berger in this

 465 4 memo then make a proposal for a retest of the

 465 5 new plug?

 465 6 A. He does.

465:9 - 468:22 Douglas Moses 12.06.2019 

 465 9 Q. And can you tell the jury what

 465 10 proposal he makes from this memorandum?

 465 11 A. It reads, "Based on visual

 465 12 assessment with the three tip sizes, select a

 465 13 tip that fits the ear canal using the

 465 14 smallest size that, one, seals; two, assures

 465 15 at least 50 percent of largest flange is

 465 16 seated in the ear canal; and three, provides

 465 17 reasonable comfort."

 465 18 Q. So does the proposal for the

 465 19 retest include using the smallest tip?

 465 20 A. It does.

 465 21 Q. And does the, quote, "Army

 465 22 Procedure," close quote, include using the

 465 23 smallest tip?

 465 24 A. It does.

 465 25 (Moses Exhibit 33 marked for

 466 1 identification.)

 466 2 QUESTIONS BY MR. MORRISS:

 466 3 Q. If you'll take a look at

 466 4 Exhibit Number 33.

 466 5 A. Okay.

 466 6 Q. You see this is, if you look at

 466 7 the middle, is Exhibit 33, the first e-mail

 466 8 from Elliott Berger to Doug Ohlin?

 466 9 A. Yes.

 466 10 Q. Okay. And is the re:, or the

 466 11 subject, again the "Protocol for Combat Arms

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 466 12 Testing"?

 466 13 A. Yes.

 466 14 Q. And it has an attachment that

 466 15 concerns instructions for the version 4

 466 16 retest?

 466 17 A. Yes.

 466 18 Q. All right. Now, what does

 466 19 Mr. Berger report to Doug Ohlin?

 466 20 A. It reads, "Doug, before I

 466 21 circulate this memo, please review and give

 466 22 me feedback, especially, did I quote you

 466 23 correctly on approved Army procedures?"

 466 24 Q. And we had talked about, quote,

 466 25 "Army Procedures," close quote, from the

 467 1 earlier document, correct?

 467 2 A. Yes.

 467 3 Q. Did Mr. Moses {sic} respond to

 467 4 the question posed by Mr. Berger?

 467 5 A. Mr. Ohlin responds, yes.

 467 6 Q. And what does he say?

 467 7 A. "Elliott, you quoted me

 467 8 correctly."

 467 9 Should I keep reading?

 467 10 Q. Yes, you can read it all.

 467 11 A. "It would also help to explain

 467 12 your results if you mentioned how the

 467 13 spectrum of the fitting noise might have

 467 14 steered your subjects towards the wrong

 467 15 optimal size for them."

 467 16 Q. Does he make any other comments

 467 17 or provide any other feedback in that note?

 467 18 A. No.

 467 19 (Moses Exhibit 34 marked for

 467 20 identification.)

 467 21 QUESTIONS BY MR. MORRISS:

 467 22 Q. Now, if you will turn to

 467 23 Exhibit Number 34.

 467 24 A. I don't have 34.

 467 25 Q. So if you look at Exhibit --

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 468 1 well, let me just make sure.

 468 2 If we go back to the Exhibit 33

 468 3 that we just talked about, I just want to do

 468 4 one other thing there. Apparently I don't

 468 5 think I identified the date of that document.

 468 6 What is the date of Exhibit

 468 7 Number 33 where there's this exchange between

 468 8 Mr. Berger and Mr. Ohlin where he's asked to

 468 9 give feedback and asked whether he

 468 10 correctly -- was correctly quoted?

 468 11 What is the date of that

 468 12 document?

 468 13 A. June 9, 2009.

 468 14 Q. All right. And then if we now

 468 15 turn to Exhibit 34, is this an e-mail

 468 16 concerning the revised fitting protocol for

 468 17 the CAE retest?

 468 18 A. That's on the subject line,

 468 19 yes.

 468 20 Q. Okay. And in the top e-mail,

 468 21 is it from Brian Myers to Elliott Berger?

 468 22 A. Yes.

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 469 5 Q. Does the e-mail from Mr. Myers

 469 6 refer to the revised fitting protocol for the

 469 7 CAE retest?

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 469 11 Q. Under the subject line?

 469 12 A. Yes.

 469 13 Q. And what does Mr. Myers report

 469 14 to Mr. Berger?

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 469 17 THE WITNESS: It reads, "If

 469 18 your proposed protocol is more in line

 469 19 with military" -- excuse me.

 469 20 "If your proposed protocol is

 469 21 more in line with military fitting and

 469 22 you believe it gives better

 469 23 performance, then I would support

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 469 24 proceeding with that protocol.

 469 25 Brian."

 470 1 (Moses Exhibit 35 marked for

 470 2 identification.)

 470 3 QUESTIONS BY MR. MORRISS:

 470 4 Q. And now if you'll turn to

 470 5 Exhibit Number 35.

 470 6 Do you have that in front of

 470 7 you?

 470 8 A. I do.

 470 9 Q. Is Exhibit 35 an e-mail from

 470 10 Jeffrey Hamer to Elliott Berger?

 470 11 A. Yes.

 470 12 Q. And in the subject line is it

 470 13 also talking about the revised fitting

 470 14 protocol for the CAE retest?

 470 15 A. It is.

 470 16 Q. And can you tell the jury what

 470 17 Mr. Hamer reported concerning the retest?

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 470 21 THE WITNESS: It reads, "I am

 470 22 okay with the new protocol as long as

 470 23 it correctly reflects the actual

 470 24 practice in use by the military. We

 470 25 should change our instruction insert

 471 1 to reflect this as well. Everyone

 471 2 needs to remember there is still a

 471 3 risk that changing the protocol and

 471 4 retesting could result in a lower

 471 5 rating than we currently have on

 471 6 record for this product."

 471 7 QUESTIONS BY MR. MORRISS:

 471 8 Q. So Mr. Hamer, who is he?

 471 9 A. He's the lab manager at this

 471 10 point.

 471 11 Q. Okay. And in this e-mail, does

 471 12 he say that he's, quote, "okay," close quote,

 471 13 with the new protocol as long as it correctly

 471 14 reflects the actual practice used in the

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 471 15 military?

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 471 18 THE WITNESS: It does.

 471 19 QUESTIONS BY MR. MORRISS:

 471 20 Q. Okay. And does he indicate

 471 21 whether there would still be a risk that

 471 22 changing the protocol might result in a lower

 471 23 rating?

 471 24 A. He does.

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 472 9 Q. Is this an exhibit that you saw

 472 10 yesterday during your exam?

 472 11 A. Yes.

 472 12 Q. Is this a note from Jeff -- to

 472 13 Jeff Hamer, Doug Moses, Doug Ohlin, Marc

 472 14 Santoro and Brian Myers?

 472 15 A. Yes.

 472 16 Q. Who is it from?

 472 17 A. Elliott Berger.

 472 18 Q. And what is the date?

 472 19 A. June 19th.

 472 20 Q. Of what year?

 472 21 A. Oh, I'm sorry, 2009.

 472 22 Q. And what is the re:, the

 472 23 subject line?

 472 24 A. "Test Results for CAEv4 with

 472 25 New Instruction Set."

 473 1 Q. And does he report in the first

 473 2 couple of lines the results?

 473 3 A. He does.

 473 4 Q. And what does he report?

 473 5 A. It reads, "We have completed

 473 6 retesting the CAEv4. The results are

 473 7 attached. With the new instruction set, we

 473 8 find the NRR open is still 7 dB, but the NRR

 473 9 closed has increased to 23 dB. The new value

 473 10 is valid as long as we change our

 473 11 instructions accordingly."

 473 12 Q. And have you seen other

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 473 13 documents indicating that the instructions

 473 14 were, in fact, modified?

 473 15 A. I have.

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