EXHIBIT 1

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 1 of 128
Hamer 2015-10-07

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 2 of 128
Hamer 2015-10-07 2

Designation Objection Rulings

1:12 - 1:20 Hamer 2015-10-07

 1 12 The videotaped deposition upon oral

 1 13 examination of JEFFREY LEE HAMER, a witness produced

 1 14 and sworn before me, Julie A. Rupprecht, RPR, CRR,

 1 15 Notary Public in and for the County of Hamilton, State

 1 16 of Indiana, taken on behalf of the Plaintiff at the

 1 17 offices of Katz & Korin, The Emelie Building,

 1 18 334 North Senate Avenue, Indianapolis, Indiana, on

 1 19 October 7, 2015, at 9:44 a.m., pursuant to the Federal

 1 20 Rules of Civil Procedure.

Re: [1:12-1:20]

Def Obj Defendants object to the use of 

this deposition transcript as unduly 

prejudicial because it is prior testimony 

from a separate proceeding. Plaintiffs 

deposed Mr. Hamer in this litigation on 

December 18, 2019. At that time, 

Plaintiffs had the opportunity to cross 

examine Mr. Hamer with material from 

his prior testimony. Indeed, plaintiffs 

took that opportunity and used this 

deposition transcript with Mr. Hamer in 

that 2019 deposition on several different 

occasions. Plaintiffs should not now be 

allowed to present prior testimony from 

a separate proceeding when they had 

every opportunity to develop the 

testimony they now designate during

Mr. Hamer's deposition in this case.

DEFER RULING

7:8 - 7:10 Hamer 2015-10-07

 7 8 Q Sir, would you state your name for the record,

 7 9 please?

 7 10 A Jeffrey Lee Hamer.

9:17 - 10:17 Hamer 2015-10-07

 9 17 Q And can you summarize briefly for me your

 9 18 employment history?

 9 19 A Yes. Started at what was EAR division of Cabot

 9 20 Corporation in 1984, hired as applications

 9 21 engineer, worked my way up through that

 9 22 organization in noise control engineering,

 9 23 basically applying noise control to OEM products

 9 24 for manufacturers, worked my way up over the next

 9 25 13 years to the manager of the laboratory there.

 10 1 In 1997, moved to a company in southern

 10 2 Indiana by the name of PRD, Incorporated, as the

 10 3 manager of engineering there. They're an injection

 10 4 molding firm primarily in automotive design and

 10 5 molding components. In 2007, moved back to what

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 3 of 128
Hamer 2015-10-07 3

 10 6 was at the time Aearo Corporation on the safety

 10 7 products side of the business rather than the noise

 10 8 control as the senior technical director and have

 10 9 worked there ever since 3M acquired Aearo in 2008.

 10 10 Q Thank you. So for 13 years while you were at

 10 11 Cabot, you worked your way up to various ranks as

 10 12 an engineer?

 10 13 A As an engineer and a manager and engineering

 10 14 manager.

 10 15 Q And that was in -- and you said that at the end of

 10 16 that period, you had -- you had become the lab

 10 17 manager, too?

10:19 - 10:22 Hamer 2015-10-07

 10 19 Q And by lab, do you mean the E-A-RCAL Lab?

 10 20 A No. I mean the acoustics lab for what was the

 10 21 noise control products division at the time, not

 10 22 safety division.

Re: [10:19-10:22]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64 OBJECTION WITHDRAWN, 

3/11/2021

10:25 - 11:8 Hamer 2015-10-07

 10 25 be asking just for the record. What's the

 11 1 difference between noise control and noise

 11 2 protection or safety?

 11 3 A Noise control is the application of materials and

 11 4 designed to reduce noise in a -- in a device or

 11 5 machine.

 11 6 Q Uh-huh.

 11 7 A Hearing protection is protecting a user from

 11 8 excessive noise.

Re: [10:25-11:8]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OBJECTION WITHDRAWN, 

3/11/2021

17:1 - 17:3 Hamer 2015-10-07

 17 1 Q So what have your responsibilities been at Aearo

 17 2 and 3M since you rejoined the company in 2007?

 17 3 A Manage the development laboratory as a whole with

17:4 - 17:5 Hamer 2015-10-07

 17 4 respect to new product development, new technology

 17 5 initiatives, and personnel associated with that.

Re: [17:4-17:5]

Pltf Obj no objection- clarification OBJECTION WITHDRAWN, 

3/11/2021

17:11 - 17:13 Hamer 2015-10-07

 17 11 And the development lab, that -- is that

 17 12 Mr. Berger's lab or a different lab or some

 17 13 combination?

Re: [17:11-17:13]

Pltf Obj no objection- clarification OBJECTION WITHDRAWN, 

3/11/2021

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 4 of 128
Hamer 2015-10-07 4

17:14 - 17:21 Hamer 2015-10-07

 17 14 A The product development lab is under -- is under my

 17 15 responsibility. Mr. Berger manages the E-A-RCAL

 17 16 testing facility.

 17 17 Q And they're different?

 17 18 A They're within the same building, but they have

 17 19 different functions, yes.

 17 20 Q And -- but he reports to you; correct?

 17 21 A Yes, he does.

41:4 - 41:19 Hamer 2015-10-07

 41 4 And 3M believes that the NRR they put on their

 41 5 hearing protection devices is important; correct?

 41 6 A Yes.

 41 7 Q You try to be as accurate as you can?

 41 8 A Yes.

 41 9 Q You try to communicate information truthfully?

 41 10 A Yes.

 41 11 Q I'm sure you do.

 41 12 A noise reduction rating is the measure of

 41 13 attenu- -- it's a way of representing measurements

 41 14 done on a hearing protection device to see how much

 41 15 it attenuates or reduces the noise that would

 41 16 otherwise reach the wearer or user of the product;

 41 17 correct?

 41 18 A It's a single-number rating meant to indicate

 41 19 potential hearing damage.

41:20 - 42:6 Hamer 2015-10-07

 41 20 Q Okay. And when you say it's a single-number

 41 21 rating, the point is sound is made up of different

 41 22 components with different frequencies and different

 41 23 amplitudes. And you could measure them all

 41 24 separately, but this rating pulls them all together

 41 25 under a certain standard; correct?

 42 1 A Correct.

 42 2 Q And that standard is an ANSI standard, right,

 42 3 A-N-S-I?

 42 4 A Correct.

 42 5 Q And it's often referred to as the 1974 standard?

 42 6 A Correct.

Re: [41:20-42:6]

Pltf Obj no objection- clarification 

OBJECTION WITHDRAWN, 

3/11/2021

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 5 of 128
Hamer 2015-10-07 5

48:14 - 49:17 Hamer 2015-10-07

 48 14 In any event, the way the noise reduction

 48 15 rating is determined based on, I believe, some

 48 16 EPA -- first of all, the EPA passes regulations

 48 17 that control the noise reduction rating protocol,

 48 18 right, or the -- how you state it?

 48 19 A The -- yes. The EPA is the regulatory body for

 48 20 hearing protection.

 48 21 Q And they pass rules about how manufacturers of

 48 22 hearing protection devices should list the NRR for

 48 23 those products; correct?

 48 24 A Yes.

 48 25 Q And they require that all hearing protection

 49 1 devices carry an NRR?

 49 2 A They do.

 49 3 Q They require that it be measured using the ANSI

 49 4 1974 standard, if you would; correct?

 49 5 A Yes.

 49 6 Q And then they determine -- they instruct that

 49 7 the -- after the measurements are done under the

 49 8 ANSI standards, certain adjustments are to be made

 49 9 to arrive at the NRR calculation; correct?

 49 10 A Yes.

 49 11 Q And they do that by, among other things, reducing

 49 12 the mean or the average attenuation that's measured

 49 13 with various people two standard deviations down in

 49 14 order to make sure that 98 percent of the

 49 15 population gets at least that level of protection

 49 16 from the device or more; correct?

 49 17 A That's the intent.

49:18 - 50:2 Hamer 2015-10-07

 49 18 Q What -- why -- you say that's the intent. Is there

 49 19 a qualification, like it doesn't always work, or

 49 20 you're just saying that's the intent?

 49 21 A The -- that -- the NRR is an ideal reduction.

 49 22 Q Okay. I understand. It's not always attained?

 49 23 A Correct.

 49 24 Q And in fact, I think there's a disclaimer on some

 49 25 products that says cut it in half?

Re: [49:18-50:2]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OVERRULED as to 49:18-49:23

SUSTAINED as to 49:24-50:2

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 6 of 128
Hamer 2015-10-07 6

 50 1 A There's some OSHA guidance that deals with derating

 50 2 the NRR to obtain real world attenuation.

87:5 - 87:24 Hamer 2015-10-07

 87 5 Q But don't you also use your own judgment and

 87 6 sometimes decide there's something wrong with the

 87 7 test and we should redo the test?

 87 8 A No.

 87 9 Q You never do that?

 87 10 A Not for a label test.

 87 11 Q Huh. What does that mean? What do you mean? You

 87 12 never stop a label test?

 87 13 A We do not.

 87 14 Q Is it against the policy of 3M to stop a label test

 87 15 because --

 87 16 A Not -- so we have stopped a label test in the

 87 17 past --

 87 18 Q Uh-huh.

 87 19 A -- I think. I believe we have. And then modified

 87 20 the product. We never -- never started a new test

 87 21 on the same product.

 87 22 Q Why is that?

 87 23 A Because we didn't -- we were not meeting our

 87 24 objectives in development.

Re: [87:5-87:24]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

88:6 - 88:22 Hamer 2015-10-07

 88 6 If the experimenters or Mr. Kieper or someone

 88 7 is running a labeling test and they start seeing,

 88 8 say, highly variable results, do they ever stop the

 88 9 test and redo it?

 88 10 A No, they do not -- not redo the same product

 88 11 with -- that -- we would modify the product

 88 12 before --

 88 13 Q So -- I'm sorry. I didn't mean to stop you. You

 88 14 would modify the product -- were you done?

 88 15 A Yes.

 88 16 Q And -- I'm sorry. I didn't mean to cut you off. I

 88 17 apologize.

 88 18 And what I think you're also saying is the

 88 19 only time we would redo a labeling test is if we

 88 20 made a change to a product or some aspect of it; is

Re: [88:6-88:22]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64; 

cumulative 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 7 of 128
Hamer 2015-10-07 7

 88 21 that correct?

 88 22 A Yes.

88:23 - 89:9 Hamer 2015-10-07

 88 23 Q Okay. And is it your practice if you either change

 88 24 a product or change the way it's being, for

 88 25 example, fitted, then you would do a retest?

 89 1 A Fitted?

 89 2 Q Yeah.

 89 3 A Explain fitted to me.

 89 4 Q How -- how the person's being instructed to put it

 89 5 in or --

 89 6 A No.

 89 7 Q No what?

 89 8 A We would not redo a label test due to new fitting

 89 9 instructions.

Re: [88:23-89:9]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

101:10 - 101:17 Hamer 2015-10-07

 101 10 Q So how does the lab know when the test it's doing

 101 11 is a labeling test? Is it instructed in that

 101 12 regard?

 101 13 A Yes.

 101 14 Q By whom?

 101 15 A Myself and/or Elliott.

 101 16 Q Elliott Berger?

 101 17 A Yes.

Re: [101:10-101:17]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

120:10 - 120:14 Hamer 2015-10-07

 120 10 A Yes.

 120 11 Q Okay. Don't you think that it's not fair to

 120 12 soldiers to not tell them that this thing actually

 120 13 has more attenuation in some tests than the zero

 120 14 that you listed on the package?

Re: [120:10-120:14]

Def Obj incomplete designation. 

Answer with no question then question 

with no answer

120:10 DESIGNATION 

WITHDRAWN, 3/11/2021

SUSTAINED as to 120:11-120:14

120:17 - 121:3 Hamer 2015-10-07

 120 17 Q Yeah. Don't you think that it's not fair to

 120 18 soldiers to not tell them that you did later tests

 120 19 on the Combat Arms Version 2 and you got a higher

 120 20 NRR in the open than what you're putting on the

 120 21 package when you know that the lower attenuation is

 120 22 what they're looking for?

 120 23 MS. HUNTER: Same objection.

 120 24 A I don't know how to answer that. I mean, I -- I

Re: [120:17-121:3]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 8 of 128
Hamer 2015-10-07 8

 120 25 don't believe it's unfair, no.

 121 1 Q Why not? Wouldn't you want to give them the

 121 2 information that we did later tests and we got an

 121 3 NRR of five or six or whatever it is?

121:5 - 121:9 Hamer 2015-10-07

 121 5 A I believe, again, that the rating of NRR is a

 121 6 measure of sound protection, how well we're

 121 7 protecting the soldier from incident sound energy.

 121 8 And to tell them we were giving them more

 121 9 protection than we potentially are would be wrong.

Re: [121:5-121:9]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

162:3 - 163:3 Hamer 2015-10-07

 162 3 Q We'll take our time and get there. That's all

 162 4 right. Look at Exhibit 5201, the --

 162 5 A Got it.

 162 6 Q -- development of the Combat Arms earplug document

 162 7 we've been looking at all morning.

 162 8 A Okay, the same table.

 162 9 Q Yeah. And if you'll look, you'll see it lists the

 162 10 labeling test for the closed end of the Combat Arms

 162 11 as test number 213017. Do you see that?

 162 12 A Yes.

 162 13 Q And when we look at Exhibit 5211, we see the -- it

 162 14 discloses that for labeling test 213017, the yellow

 162 15 flange was rolled back before the test was

 162 16 conducted; correct?

 162 17 A That's what the notes say on that test data, yes.

 162 18 Q Well, and also the memorandum that accompanies it

 162 19 that was written by Kieper and Berger says, For

 162 20 test 203017, the yellow flanges, the

 162 21 level-dependent end of the plug, were folded back

 162 22 prior to the green solid plug being inserted in the

 162 23 subject's ears. Do you see that?

 162 24 A Yes.

 162 25 Q And the reason they were doing that was so the

 163 1 yellow end wouldn't cause the plug to come out;

 163 2 right?

 163 3 A So it wouldn't interfere with insertion, yes.

Re: [162:3-163:3]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 9 of 128
Hamer 2015-10-07 9

163:19 - 164:8 Hamer 2015-10-07

 163 19 Q So what was happening is when you put the plug in

 163 20 with one end, the other end's flanges were causing

 163 21 the plug sometimes to come out at least partially;

 163 22 correct?

 163 23 A That's what this document says, yes.

 163 24 Q And so the labeling test that 3M is using for the

 163 25 closed end of the Combat Arms Version 2 actually

 164 1 involves using the plug in a different

 164 2 configuration than is advertised or shown in the

 164 3 plug; right? It involves folding back that flange.

 164 4 A It appears so.

 164 5 Q So really, the labeling test that 3M's using for

 164 6 Combat Arms Version 2 for the green end is not the

 164 7 appropriate test; isn't that true?

 164 8 A It appears so.

Re: [163:19-164:8]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

165:6 - 165:11 Hamer 2015-10-07

 165 6 Q And do you know why 3M redid the test on the closed

 165 7 end to fold back the flange and get a higher NRR,

 165 8 but it did not roll back the flange when it tested

 165 9 the same plug in the open mode?

 165 10 A I do not know that they didn't. And I wasn't there

 165 11 at the time.

Re: [165:6-165:11]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

SUSTAINED

165:20 - 166:1 Hamer 2015-10-07

 165 20 Q Okay. Would it be fair to say that if they did not

 165 21 test the open mode with the flange rolled back, but

 165 22 they did test the closed end with the flange rolled

 165 23 back, that that would be improper because the two

 165 24 tests were using the product in two different ways?

 165 25 A My opinion is that testing the product with the

 166 1 flange rolled back is improper.

Re: [165:20-166:1]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

173:8 - 173:14 Hamer 2015-10-07

 173 8 Q There are only eight subjects in test number 213015

 173 9 because they stopped the test; isn't that true?

 173 10 A Apparently. I wasn't there.

 173 11 Q And isn't it your testimony that you're not

 173 12 supposed to stop a labeling test in the middle just

 173 13 because you're getting low numbers or variability?

 173 14 A Yes.

Re: [173:8-173:14]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 10 of 128
Hamer 2015-10-07 10

173:15 - 173:16 Hamer 2015-10-07

 173 15 Q Was it improper of them to stop the test in your

 173 16 opinion?

Re: [173:15-173:16]

Pltf Obj no objection- clarification 

173:18 - 174:3 Hamer 2015-10-07

 173 18 A I don't know why they did it, so -- there's reasons

 173 19 that they -- it could have been during design and

 173 20 they decided to change something in the product.

 173 21 Q Well, it was during the same day that they were

 173 22 testing the other end of the plug for labeling;

 173 23 right?

 173 24 A Yes.

 173 25 Q Okay.

 174 1 A Doesn't mean that they didn't change the design.

 174 2 Q Are you aware of any change in the design?

 174 3 A I wasn't there.

Re: [173:18-174:3]

Pltf Obj no objection- clarification 

174:7 - 174:13 Hamer 2015-10-07

 174 7 Q Okay. And again, if test number 213015 was a

 174 8 labeling test, then shouldn't they have completed

 174 9 the test and listed the NRR on the packaging?

 174 10 A I do not know.

 174 11 Q Wouldn't it be a big problem for 3M if it had to

 174 12 list the NRR on the closed end of its Combat Arms

 174 13 Version 2 as being 11 rather than 22?

Re: [174:7-174:13]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

175:16 - 175:18 Hamer 2015-10-07

 175 16 Q And don't you think that you should stop selling it

 175 17 until you figure out whether or not this is a

 175 18 problem?

Re: [175:16-175:18]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OVERRULED

175:20 - 175:21 Hamer 2015-10-07

 175 20 A I do not know that this is the design that we have

 175 21 on the market.

Re: [175:20-175:21]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OVERRULED

175:24 - 176:7 Hamer 2015-10-07

 175 24 you think in 2000 when 3M found this problem with

 175 25 this plug pulling out, they should have stopped and

 176 1 figured out what it was and stopped selling it

 176 2 until they solved it?

 176 3 A I don't know that they didn't.

 176 4 Q If they didn't, don't you think that would have

 176 5 been wrong?

Re: [175:24-176:7]

Def Obj Relevance (401, 402); 

Prejudice (403); foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 11 of 128
Hamer 2015-10-07 11

 176 6 MS. HUNTER: Object to form.

 176 7 A If they did not, yes.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 12 of 128
Ronald Kieper 12/19/2019

NOTE: Defendants have objected to affirmative designations included 

in this report as untimely under PTO 66.

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 13 of 128
Ronald Kieper 12/19/2019 2

Designation Objection Rulings

8:21 - 9:11 Ronald Kieper 12/19/2019

 8 21 Q. Good morning, Mr. Kieper. Could you state

 8 22 your full name for the record?

 8 23 A. Ronald William Kieper.

 8 24 Q. Great.

 8 25 My name is Dave Buchanan. I represent

 9 1 certain service members and others who have been

 9 2 injured as a result of their use of the Combat Arms

 9 3 Earplug.

 9 4 Do you have that understanding, sir, that

 9 5 you are here today in a deposition in connection with

 9 6 litigation relating to the Combat Arms Earplug?

 9 7 A. Yes.

 9 8 Q. For a period of time, sir, you were

 9 9 employed by the Aearo Company or an Aearo affiliate,

 9 10 is that fair?

 9 11 A. Yes.

11:5 - 11:25 Ronald Kieper 12/19/2019

 11 5 Q. When did you start with Aearo?

 11 6 A. June of 1981.

 11 7 Q. And you stayed there until the date of

 11 8 your retirement, is that right?

 11 9 A. Yes.

 11 10 Q. Okay. And when did you retire, sir?

 11 11 A. June of 2016.

 11 12 Q. So 35 years?

 11 13 A. Yes.

 11 14 Q. Is that right?

 11 15 A. That's correct.

 11 16 Q. A full career with Aearo?

 11 17 A. Yes.

 11 18 Q. And there -- the company had a series of

 11 19 transactions over the years. It was at one point

 11 20 Cabot, it was at one point Aearo, at a later point it

 11 21 was 3M, but have you always gone to a location with a

 11 22 sign over the door that said Aearo?

 11 23 A. It -- initially it was E-A-R, Division of

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 14 of 128
Ronald Kieper 12/19/2019 3

 11 24 Cabot, and then, as you said, it transitioned through

 11 25 several names, but I was always in the same building.

12:9 - 12:12 Ronald Kieper 12/19/2019

 12 9 Q. During the entire time that you worked for

 12 10 Aearo in the laboratory, was it called the E-A-RCAL

 12 11 Laboratory?

 12 12 A. Yes.

13:10 - 13:15 Ronald Kieper 12/19/2019

 13 10 Q. Okay. And so in 1988 you move over into

 13 11 the E-A-RCAL Lab, is that right?

 13 12 A. Yes.

 13 13 Q. And what was your function when you moved

 13 14 over there, sir?

 13 15 A. My title was Acoustic Technician.

13:20 - 13:24 Ronald Kieper 12/19/2019

 13 20 Q. And please tell us, sir, kind of the

 13 21 training process that you went through before you

 13 22 moved into the lab?

 13 23 A. Before I moved into the lab, I had no

 13 24 training.

Re: [13:20-13:24]

Def Obj Relevance (401, 402)

OVERRULED

14:4 - 14:13 Ronald Kieper 12/19/2019

 14 4 Q. And then it was kind of an on-the-job

 14 5 training where you became familiar with the tests that

 14 6 were done, became, if you will, skilled in how to run

 14 7 those tests?

 14 8 A. Yes.

 14 9 Q. Okay. Certainly throughout your career,

 14 10 sir, you've conducted a series of different I'll call

 14 11 them acoustic or audiologic tests in that lab.

 14 12 Would that be fair?

 14 13 A. Yes.

14:21 - 15:4 Ronald Kieper 12/19/2019

 14 21 Q. Mr. Kieper, I'm passing you Exhibit 1 to

 14 22 your deposition. It's a copy of a PowerPoint from

 14 23 2012, or a portion of a PowerPoint. This being

 14 24 e-mailed from Mr. Berger to a Jeff Hamer, and it says:

 14 25 "Subject: Updated capabilities file.

 15 1 E-A-RCAL overview 2012 PowerPoint."

 15 2 It is internally numbered P 221.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 15 of 128
Ronald Kieper 12/19/2019 4

 15 3 Do you see that first page, sir?

 15 4 A. Yes, I do.

15:19 - 15:21 Ronald Kieper 12/19/2019

 15 19 Q. It says: "Staff, Indianapolis Acoustics."

 15 20 Quickly, sir, and we'll see on the top

 15 21 left, is that an individual who headed the lab?

16:9 - 17:2 Ronald Kieper 12/19/2019

 16 9 Q. Do you see the heading: "Staff,

 16 10 Indianapolis Acoustics"?

 16 11 A. Yes, I do.

 16 12 Q. Okay. And there's pictures of four

 16 13 individuals there?

 16 14 A. Yes.

 16 15 Q. Without the names in this version.

 16 16 Top left, would that be Elliott Berger?

 16 17 A. Yes, that is Elliott.

 16 18 Q. Okay. And he is the person who brought

 16 19 you into the lab in 1988?

 16 20 A. Yes.

 16 21 Q. Okay. And you worked under him for your

 16 22 entire time?

 16 23 A. Yes.

 16 24 Q. You retired before he retired, fair?

 16 25 A. That's correct.

 17 1 Q. Okay. Bottom left, that would be you?

 17 2 A. Yes.

17:7 - 17:12 Ronald Kieper 12/19/2019

 17 7 Q. "Acoustics" -- "Acoustics Technician, B.S.

 17 8 Computer Technology," at that point "24 years in

 17 9 E-A-RCAL," and "responsible for all label/NRR tests,

 17 10 expert in REAT, MIRE, and ATF tests."

 17 11 Did I read that correctly?

 17 12 A. Yes, you did.

17:13 - 17:15 Ronald Kieper 12/19/2019

 17 13 Q. And at what point in time did you complete

 17 14 your B.S. in computer technology?

 17 15 A. It was in the 1990s.

Re: [17:13-17:15]

Pltf Obj Beyond the scope of 

clarification counter. 

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 16 of 128
Ronald Kieper 12/19/2019 5

17:19 - 17:21 Ronald Kieper 12/19/2019

 17 19 Q. And where did you obtain your degree from,

 17 20 sir?

 17 21 A. Purdue University.

17:22 – 18:3 Ronald Kieper 12/19/2019

 17 22 Q. Okay. And did you obtain any certificates

 17 23 or other training, you know, formal training outside

 17 24 of on-the-job training in audiology or acoustics?

 17 25 A. I -- right after I was hired, I took a

 18 1 20-hour course given by Larry and Julie Royster on a

 18 2 hearing conservation program, how to run a hearing

 18 3 conservation program.

18:4 – 18:14 Ronald Kieper 12/19/2019

 18 4 Q. Okay. And what is a hearing conservation

 18 5 program?

 18 6 A. In workplaces where the employees are

 18 7 exposed to hazardous noise levels, the -- my

 18 8 understanding is they -- they maybe legally have to

 18 9 have a hearing conservation program which monitors --

 18 10 well, it -- they give audiograms to the employees,

 18 11 typically annually, they monitor and measure the noise

 18 12 levels that the employees are exposed to, there is

 18 13 education of the employees, and there may be one or

 18 14 two other facets of the hearing conservation program.

Re: [17:19-17:21]

Pltf Obj Beyond the scope of 

clarification counter. 

Re: [17:22-18:3]

Pltf Obj Beyond the scope of 

clarification counter. 

Re: [18:4-18:14]

Pltf Obj Beyond the scope of 

clarification counter. 

23:6 - 23:25 Ronald Kieper 12/19/2019

 23 6 Q. And we saw on the screen a few minutes ago

 23 7 that, you know, you were familiar and had involvement

 23 8 for running all label/NRR tests for the E-A-RCAL Lab,

 23 9 right?

 23 10 A. Yes, for many years I was.

 23 11 Q. Certainly as of the point of time of this

 23 12 PowerPoint, a point in time you were still at the

 23 13 company, or with Aearo, you were responsible for all

 23 14 label/NRR tests, right?

 23 15 A. Yes.

 23 16 Q. Okay. So when we are talking about

 23 17 hearing protection devices and I was talking about a

 23 18 characteristic of them, one of the outputs of the test

 23 19 that you ran while you were at Aearo were tests that

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Ronald Kieper 12/19/2019 6

 23 20 would generate an NRR, correct?

 23 21 A. Yes, an NRR could be calculated.

 23 22 Q. And that's what it says on the screen here

 23 23 in Exhibit 1 that you were responsible for all of the

 23 24 label/NRR tests, right?

 23 25 A. Yes, that's what it says right here.

24:9 - 24:12 Ronald Kieper 12/19/2019

 24 9 Q. Are you familiar, sir, that the EPA

 24 10 specifies a label that is to accompany the sale of

 24 11 hearing protection devices in this country?

 24 12 A. That -- that sounds right, yes.

Re: [24:9-24:12]

Def Obj Relevance (401, 402)

OVERRULED

26:16 - 26:19 Ronald Kieper 12/19/2019

 26 16 Q. Some hearing protection devices provide

 26 17 more attenuation or more protection from sound -- loud

 26 18 noises than others, right?

 26 19 A. I think that's accurate, yes.

26:20 - 27:1 Ronald Kieper 12/19/2019

 26 20 Q. And that's really one of the things that

 26 21 you were measuring when you were doing label and NRR

 26 22 tests is the extent of attenuation or protection that

 26 23 the hearing protection device provided, right?

 26 24 MS. ELIZABETH: Objection; form.

 26 25 BY THE WITNESS:

 27 1 A. Yes.

Re: [26:20-27:1]

Def Obj Vague (611, 403)

OVERRULED

27:19 - 28:3 Ronald Kieper 12/19/2019

 27 19 One of the goals of generating an NRR was

 27 20 to provide a measure that people could use in

 27 21 assessing the protection that your hearing protection

 27 22 devices provided.

 27 23 Would that be fair?

 27 24 MS. ELIZABETH: Objection; form, foundation.

 27 25 BY THE WITNESS:

 28 1 A. Yes, you could use the NRR of a variety of

 28 2 products to assess their comparative protective

 28 3 ability.

Re: [27:19-28:3]

Def Obj Misstates (611, 403); 

foundation (602)

OVERRULED

28:4 - 28:11 Ronald Kieper 12/19/2019

 28 4 BY MR. BUCHANAN:

 28 5 Q. And so just so we understand, if you will,

 28 6 the scheme correctly, higher NRRs convey greater

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Ronald Kieper 12/19/2019 7

 28 7 attenuation or protection, correct?

 28 8 A. Yes.

 28 9 Q. Lower NRRs convey less attenuation or less

 28 10 protection, correct?

 28 11 A. Yes.

46:15 - 47:1 Ronald Kieper 12/19/2019

 46 15 Q. Okay. So in terms of protection afforded

 46 16 by the Combat Arms Version 2, to the extent there was

 46 17 testing done on it by Aearo, your function would have

 46 18 been around real-ear attenuation data, is that fair?

 46 19 A. That's correct.

 46 20 Q. So-called REAT testing?

 46 21 A. Yes.

 46 22 Q. I've seen it written out like that. Is

 46 23 that how you pronounced it in your day-to-day

 46 24 practice?

 46 25 A. The letters stand for real-ear attenuation

 47 1 at threshold.

47:2 - 47:8 Ronald Kieper 12/19/2019

 47 2 Q. Okay. And those are tests that can be

 47 3 done in different ways, but those are tests the output

 47 4 of which can be an NRR, correct?

 47 5 MS. ELIZABETH: Objection; form.

 47 6 BY THE WITNESS:

 47 7 A. Yes, the real-ear test can result in an

 47 8 NRR being computed.

Re: [47:2-47:8]

Def Obj Vague (611, 403); foundation 

(602)

OVERRULED

58:5 - 58:14 Ronald Kieper 12/19/2019

 58 5 Q. Sir, we spent some time talking about the

 58 6 difference between the green end and the yellow end?

 58 7 A. Yes.

 58 8 Q. Just so the record is clear, you did what

 58 9 you called real-ear attenuation at threshold testing

 58 10 or REAT testing on the green end, correct?

 58 11 A. I tested both ends, yes.

 58 12 Q. Okay. You tested both ends for the

 58 13 attenuation using REAT tests, correct?

 58 14 A. Yes, I did.

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58:15 - 58:16 Ronald Kieper 12/19/2019

 58 15 Q. We also talked about impulse noise

 58 16 testing.

Re: [58:15-58:16]

Pltf Obj beyond the scope of 

completeness counter 

SUSTAINED

91:4 - 92:6 Ronald Kieper 12/19/2019

 91 4 Q. Okay. So going back, please, to

 91 5 Exhibit 1, and we went down that, if you will, fork in

 91 6 the road while we were talking about NVLAP

 91 7 accreditation on this -- on this particular slide

 91 8 talking about your E-A-RCAL facility.

 91 9 "Established 1978 and NVLAP accredited in

 91 10 1992."

 91 11 Do you see that?

 91 12 A. Yes.

 91 13 Q. Okay. It says: "Real-ear attenuation at

 91 14 threshold per ANSI S3.19 and S12.6."

 91 15 Do you see that, sir?

 91 16 A. Yes.

 91 17 Q. Okay. What do those ANSI numbers

 91 18 represent?

 91 19 A. Those are test standards.

 91 20 Q. Okay. And the jury may have already heard

 91 21 about these, but maybe you could help us out, sir.

 91 22 ANSI S3.19, what is that?

 91 23 A. It's a document, I believe, that was

 91 24 created in 1974 and it outlines test procedures and a

 91 25 number of other things that are required to do

 92 1 real-ear testing on people. I believe it also talks

 92 2 about insertion loss testing.

 92 3 Q. Okay. And with regard to real attenuation

 92 4 at threshold (REAT) per ANSI S3.19, is that referring

 92 5 to so-called human testing in that standard?

 92 6 A. Yes.

92:7 - 92:13 Ronald Kieper 12/19/2019

 92 7 Q. Okay. And that would be if you are doing

 92 8 label testing on most US products under ANSI S3.19,

 92 9 you'd be using a particular subpart of that standard,

 92 10 right?

 92 11 MS. ELIZABETH: Objection; form.

Re: [92:7-92:13]

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OVERRULED

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Ronald Kieper 12/19/2019 9

 92 12 BY THE WITNESS:

 92 13 A. Yes.

92:14 - 92:18 Ronald Kieper 12/19/2019

 92 14 BY MR. BUCHANAN:

 92 15 Q. You'd be using what's been called

 92 16 Experimenter-Fit as the procedure, is that right?

 92 17 A. Yes, for labeling tests we would use

 92 18 Experimenter-Fit.

92:19 - 93:1 Ronald Kieper 12/19/2019

 92 19 Q. And then am I correct then if you were

 92 20 doing Experimenter-Fit on labeling tests under that

 92 21 particular standard, you would be the experimenter?

 92 22 A. I would be the experimenter.

 92 23 Q. And you would be then the one doing the

 92 24 fit?

 92 25 A. Yes, I would.

 93 1 Q. How many hundreds or thousands of label

93:1 - 93:6 Ronald Kieper 12/19/2019

 93 1 Q. How many hundreds or thousands of label

 93 2 tests, sir, have you done in your career?

 93 3 A. I have no idea.

 93 4 Q. Hundreds?

 93 5 A. I -- possibly, but I don't know. I really

 93 6 don't know.

Re: [93:1-93:6]

Def Obj Relevance (401, 402)

SUSTAINED

93:7 - 93:14 Ronald Kieper 12/19/2019

 93 7 Q. I mean, were you running them most of the

 93 8 weeks you were there in the lab?

 93 9 MS. ELIZABETH: Objection; form.

 93 10 BY THE WITNESS:

 93 11 A. I would say not -- not most of the weeks.

 93 12 You know, it is hard to quantify. I did a lot of

 93 13 label tests, a lot of product development tests, and

 93 14 as it says here, I conducted over 2200 full tests.

Re: [93:7-93:14]

Def Obj Vague; misstates (611, 403); 

relevance (401, 402)

OVERRULED

95:21 - 96:5 Ronald Kieper 12/19/2019

 95 21 Q. Okay. Can we go to .5.

 95 22 I'm wondering, sir, if you can help us

 95 23 understand this REAT test by looking at the pictures.

 95 24 The pictures show a gentleman left sitting

 95 25 in a room. There is a -- obviously a plastic head on

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 96 1 the right, bot -- lower right, and some kind of

 96 2 apparatus at the top right.

 96 3 Which of these three testing scenarios or

 96 4 four testing scenarios concern REAT testing?

 96 5 A. The picture on the left.

97:2 - 98:10 Ronald Kieper 12/19/2019

 97 2 Q. Okay. And so the gentleman that's sitting

 97 3 in the chair, would that be the test subject in that

 97 4 particular example?

 97 5 A. That would -- that's where a test subject

 97 6 would sit, yes.

 97 7 Q. And so how does that work, sir? He is

 97 8 sitting there and how does the test run?

 97 9 A. In the room there are three sets of loud

 97 10 speakers, and for real-ear testing, the person sits

 97 11 there, sits in the chair and responds to the test

 97 12 tones when they are presented in the room.

 97 13 Q. Okay. And he is holding something in his

 97 14 hand. What's that?

 97 15 A. We call that our -- the hand switch.

 97 16 Q. And what's that?

 97 17 A. It has a light that goes -- that a person

 97 18 can place his or her thumb or finger in and that --

 97 19 that allows the person to control the loudness of the

 97 20 test tones.

 97 21 Q. Okay. And how does the person control

 97 22 that?

 97 23 A. When the test is begun, the -- the test

 97 24 tones are generated and they begin below the person's

 97 25 level of hearing sensitivity, and when the person just

 98 1 begins to hear the tone, they -- he or she would put

 98 2 his finger or thumb in the hand switch, and by

 98 3 blocking the light, that would cause the level -- the

 98 4 volume level to decrease. And when they could no --

 98 5 the person could no longer -- when the person could no

 98 6 longer hear the tone, he or she would lift their

 98 7 finger or thumb up and then the -- the sound level

 98 8 would increase until they hear it again and then they

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 98 9 press. So it would be a series of: I hear it, I

 98 10 don't hear it; I hear it, I don't hear it.

98:18 - 99:12 Ronald Kieper 12/19/2019

 98 18 Q. But before they are actually, you know,

 98 19 starting this test, I guess if you are measuring a

 98 20 hearing protection device, and you are running let's

 98 21 call it an Experimenter-Fit, this ANSI S3.12 standard

 98 22 you were talking about before, S3.19 standard, what do

 98 23 you do before you start the test?

 98 24 A. Well, our normal procedure would be to

 98 25 talk to the person outside the room, explain what --

 99 1 what device we are testing, and then we'd go into the

 99 2 room and get the person situated, and we would either

 99 3 begin to test with an open condition of their ears,

 99 4 meaning there is nothing in their ears, or covering

 99 5 their ears, or a protected condition with the hearing

 99 6 protector either inserted if it's a plug or over their

 99 7 ears if it's an earmuff, so.

 99 8 Q. Now, are they actually sitting in that

 99 9 chair that we are looking at on the screen when you as

 99 10 the experimenter fit them with hearing protection to

 99 11 test?

 99 12 A. Yes.

99:13 - 99:16 Ronald Kieper 12/19/2019

 99 13 Q. So if they are in the open position, as I

 99 14 understand it, an open position means they don't have

 99 15 any hearing protection on them, right?

 99 16 A. Yes.

99:17 - 100:12 Ronald Kieper 12/19/2019

 99 17 Q. And so what you are doing when you run

 99 18 these tests is you are measuring the open position,

 99 19 you know, how -- what's the earliest point in time

 99 20 they can hear versus not hear particular tones, right?

 99 21 A. Yes.

 99 22 Q. And then you put the hearing protection on

 99 23 and you see what's the earlier point in time that they

 99 24 can hear or not hear particular tones when they have

 99 25 the hearing protection on, right?

 100 1 A. Yes.

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Ronald Kieper 12/19/2019 12

 100 2 Q. And then what you do is you measure -- you

 100 3 subtract those two sound levels and compute an

 100 4 attenuation at that given tone for that particular

 100 5 test observation?

 100 6 A. That's accurate, yes.

 100 7 Q. And if you were running, as you said, an

 100 8 ANSI '74 test for labeling purposes, you would

 100 9 actually do three tests like that, open and closed,

 100 10 for each test subject, correct?

 100 11 A. Yes, three repetitions of the open and

 100 12 closed testing.

100:13 - 101:3 Ronald Kieper 12/19/2019

 100 13 Q. And so when you go in to fit the hearing

 100 14 protection device to test the closed attenuation value

 100 15 for somebody, describe that process for me?

 100 16 A. I would go into the room and insert the

 100 17 hearing protector in their ears. If it's a foam plug,

 100 18 we'd let it expand until it is fully expanded, then

 100 19 the person can turn on what we call fitting noise.

 100 20 This -- the room itself is soundproof, it is very low

 100 21 level, there is no HVAC noises or other machinery

 100 22 noises. It is very quiet. So we would -- we'd turn

 100 23 on the fitting noise and the person, the test subject

 100 24 has been trained on using the fitting noise to assess

 100 25 the fit of the hearing protector. And they would

 101 1 cover and uncover their ears and do other things to

 101 2 confirm that the hearing protector was donned

 101 3 appropriately, that we were getting a good fit.

101:9 - 101:15 Ronald Kieper 12/19/2019

 101 9 Q. -- the person sitting in the chair, we see

 101 10 the picture on the screen, you would walk in and say,

 101 11 Okay. Now we are going to do the closed end. Here is

 101 12 the hearing protection device I am going to insert.

 101 13 And then you would insert it in the subject's ears for

 101 14 them, is that correct?

 101 15 A. Yes.

101:16 - 101:18 Ronald Kieper 12/19/2019

 101 16 Q. And then you would play what you called

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Ronald Kieper 12/19/2019 13

 101 17 "fitting noise," is that right?

 101 18 A. Yes.

102:1 - 102:7 Ronald Kieper 12/19/2019

 102 1 Q. And so the goal then is you fit them.

 102 2 Do you visually check to make sure they

 102 3 are seated the way they are supposed to be seated from

 102 4 your perspective as an expert fitter?

 102 5 MS. ELIZABETH: Objection; form.

 102 6 BY THE WITNESS:

 102 7 A. I -- I do a visual check, yes.

Re: [102:1-102:7]

Def Obj Vague; misstates (611, 403)

OVERRULED

102:9 - 102:15 Ronald Kieper 12/19/2019

 102 9 Q. And do you use a flashlight, do you just

 102 10 use your eyes, how do you do it, or does it vary?

 102 11 A. Normally I -- there -- as you can see,

 102 12 there are -- there are lights in the room. We turn

 102 13 the lights off when the testing is done, but when I'm

 102 14 in the room fitting the plug, the lights are on so I

 102 15 can see how the plugs are fitting in the ears.

102:16 - 102:20 Ronald Kieper 12/19/2019

 102 16 Q. So step one is you go in, you insert the

 102 17 earplugs, you assure yourself to your satisfaction

 102 18 that you have a good fit from optical inspection, from

 102 19 you looking at the fit in the ear, fair?

 102 20 A. Yes.

102:21 - 102:23 Ronald Kieper 12/19/2019

 102 21 Q. Then either you turn on the fitting noise

 102 22 or the subject turns on the fitting noise and they can

 102 23 check to see whether they are discerning attenuation?

103:1 - 103:3 Ronald Kieper 12/19/2019

 103 1 A. They -- yes, they can assess how well the

 103 2 hearing protector is fitting them by listening to the

 103 3 fitting noise.

103:5 - 103:12 Ronald Kieper 12/19/2019

 103 5 Q. And after you determine that the subject

 103 6 has a good or an adequate fit, then you step out and

 103 7 administer the test?

 103 8 MS. ELIZABETH: Objection; form.

 103 9 BY THE WITNESS:

 103 10 A. If it's the first test, as you were

Re: [103:5-103:12]

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OVERRULED

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Ronald Kieper 12/19/2019 14

 103 11 talking about, we would let them sit in the room for

 103 12 five minutes before the test began.

103:13 - 103:21 Ronald Kieper 12/19/2019

 103 13 BY MR. BUCHANAN:

 103 14 Q. Okay. And you can see them when they are

 103 15 in the room, right?

 103 16 A. Yes. There is a window through which I

 103 17 can see them.

 103 18 Q. And you'd be sitting kind of on the other

 103 19 side of that window administering the test from the

 103 20 other side of the glass, so to speak?

 103 21 A. Yes.

103:25 - 104:3 Ronald Kieper 12/19/2019

 103 25 Q. Are the instructions to the subject to sit

 104 1 still and don't touch the hearing protectors after

 104 2 they've been fit?

 104 3 A. Yes.

104:4 - 104:16 Ronald Kieper 12/19/2019

 104 4 Q. Okay. And so the conducting a test,

 104 5 according to the ANSI '74 standard, you would fit the

 104 6 device, you would check with the subject to make sure

 104 7 the subject discerned an appropriate fit, you would

 104 8 turn on the fitting noise, and then you would leave

 104 9 the room and let the person sit there for a period of

 104 10 time. Five minutes, I think you said?

 104 11 A. Before the first test, five minutes, yes.

 104 12 Q. Okay. And so then you play the tones and

 104 13 you describe the process of the person's thumb going

 104 14 up and down to discern when they heard or didn't hear

 104 15 particular tones, right?

 104 16 A. Yes.

Re: [104:4-104:16]

Pltf Obj beyond the scope of counter 

and actually makes the designation 

cumulative as asked and answered 

previously

OVERRULED

104:17 - 104:22 Ronald Kieper 12/19/2019

 104 17 Q. Then as I understand it, there are -- the

 104 18 subject has as part of an ANSI '74 test, they'll go

 104 19 through these series of tones three times, right, open

 104 20 and closed?

 104 21 A. A total of six times, yes, three open,

 104 22 three closed, correct.

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105:18 - 106:9 Ronald Kieper 12/19/2019

 105 18 Q. You don't run the tests if you don't think

 105 19 they are adequately fit, right?

 105 20 A. I -- I fit them to the -- for best fit and

 105 21 then we run the test.

 105 22 Q. Right.

 105 23 And the way you check and confirm the fit

 105 24 is both visually, right, that's one way?

 105 25 A. That's one way, yes.

 106 1 Q. Through the use of fitting noise is

 106 2 another way, right?

 106 3 A. Yes.

 106 4 Q. And then through confirmation with the

 106 5 subject, right?

 106 6 A. Yes.

 106 7 Q. Each of those three ways each time you run

 106 8 a closed test, right?

 106 9 A. Yes, a combination.

106:15 - 106:22 Ronald Kieper 12/19/2019

 106 15 Q. I'm advised through searching for your

 106 16 initials in that database, sir, we identify almost

 106 17 2,000 tests that you ran over the years, 1924.

 106 18 Does that sound about right to you?

 106 19 MS. ELIZABETH: Objection; form.

 106 20 BY THE WITNESS:

 106 21 A. That's as good an estimate as I could

 106 22 make, yes.

Re: [106:15-106:22]

Def Obj Vague (611, 403); foundation 

(602)

OVERRULED

106:23 - 106:23 Ronald Kieper 12/19/2019

 106 23 BY MR. BUCHANAN:

106:24 - 107:4 Ronald Kieper 12/19/2019

 106 24 Q. It kind of feels like you ran that many

 106 25 tests over the years, hundreds and hundreds or at

 107 1 least thousands of tests?

 107 2 MS. ELIZABETH: Objection; form.

 107 3 BY THE WITNESS:

 107 4 A. I ran a lot of tests, yes.

Re: [106:24-107:4]

Def Obj Vague; argumentative (611, 

403); foundation (602)

OVERRULED

111:25 - 112:10 Ronald Kieper 12/19/2019

 111 25 Q. Okay. And Mr. Berger would come down from

 112 1 time to time and watch the test being conducted?

Re: [111:25-112:10]

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OVERRULED

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Ronald Kieper 12/19/2019 16

 112 2 A. Yes, he could, sure.

 112 3 Q. Come down from time to time and talk to

 112 4 you when you were conducting tests?

 112 5 A. Yes.

 112 6 Q. And he was the lab director?

 112 7 A. That -- yeah, I think that may be what he

 112 8 was called in -- in the NVLAP, but, yes, that's a --

 112 9 he was the -- he oversaw the construction and -- and

 112 10 was, yeah, the lab director.

112:11 - 112:17 Ronald Kieper 12/19/2019

 112 11 Q. And he -- he guided the tests that you

 112 12 conducted, fair?

 112 13 MS. ELIZABETH: Objection; form.

 112 14 BY THE WITNESS:

 112 15 A. No. The -- the tests, if you are talking

 112 16 about a labeling test, a real-ear test, I was guided

 112 17 by the ANSI standard.

Re: [112:11-112:17]

Pltf Obj beyond the scope of a 

clarification counter and answer is non 

responsive beyond the answer "no"

SUSTAINED as to [112:14-112:17]

OVERRULED in all other respects

112:21 - 113:6 Ronald Kieper 12/19/2019

 112 21 In terms of telling you what product you

 112 22 were going to test or what testing was going to be

 112 23 done this week, I mean, he would essentially marshal

 112 24 out the testing for you to do, fair?

 112 25 A. He -- yes, he guided -- he told me what he

 113 1 wanted done, yes.

 113 2 Q. Right.

 113 3 This week we are going to test Combat Arms

 113 4 Version 2, he'd tell you that, and it's a labeling

 113 5 test, and you would go about doing so, fair?

 113 6 A. Sure.

116:3 - 116:17 Ronald Kieper 12/19/2019

 116 3 Q. Okay. When you were doing label testing

 116 4 for the company's products, were you allowed to use

 116 5 company employees in the testing?

 116 6 A. Yes.

 116 7 Q. Your procedures permitted that?

 116 8 A. Yes.

 116 9 Q. Did your policy and procedure manual

 116 10 describe that you would use company employees to test

 116 11 your own products?

Re: [116:3-116:17]

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OVERRULED

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Ronald Kieper 12/19/2019 17

 116 12 MS. ELIZABETH: Objection; form.

 116 13 BY THE WITNESS:

 116 14 A. I don't recall specifically what it says

 116 15 in the -- in the manual regarding that, but some of

 116 16 the test subjects were employees or relatives of

 116 17 employees.

116:9 - 116:17 Ronald Kieper 12/19/2019

 116 9 Q. Did your policy and procedure manual

 116 10 describe that you would use company employees to test

 116 11 your own products?

 116 12 MS. ELIZABETH: Objection; form.

 116 13 BY THE WITNESS:

 116 14 A. I don't recall specifically what it says

 116 15 in the -- in the manual regarding that, but some of

 116 16 the test subjects were employees or relatives of

 116 17 employees.

Re: [116:9-116:17]

Def Obj Foundation (602); relevance 

(401, 402)

OVERRULED

117:13 - 117:17 Ronald Kieper 12/19/2019

 117 13 Q. Who -- who created the policies for the

 117 14 lab?

 117 15 MS. ELIZABETH: Objection; vague as to time.

 117 16 BY THE WITNESS:

 117 17 A. Elliott Berger.

Re: [117:13-117:17]

Def Obj Vague (611, 403)

OVERRULED

117:18 - 117:21 Ronald Kieper 12/19/2019

 117 18 BY MR. BUCHANAN:

 117 19 Q. He created the policies for the lab at all

 117 20 times you were there?

 117 21 A. As far as I remember, yes.

117:22 - 118:1 Ronald Kieper 12/19/2019

 117 22 Q. So when you were running testing in the

 117 23 Aearo lab, it was your understanding there was no

 117 24 prohibition against using company employees to do

 117 25 labeling tests for company products, is that right?

 118 1 A. That's correct.

Re: [117:22-118:1]

Def Obj Relevance (401, 402)

OVERRULED

119:18 - 119:20 Ronald Kieper 12/19/2019

 119 18 Q. Exhibit 10. I'd like to direct your

 119 19 attention to ratings. It is on .19 -- .16. Excuse

 119 20 me.

119:24 - 120:4 Ronald Kieper 12/19/2019

 119 24 Q. "HPD Ratings," .16.

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Ronald Kieper 12/19/2019 18

 119 25 It says: "How are attenuation data used

 120 1 and calculated" -- "to calculate a single numbered

 120 2 rating?"

 120 3 Do you see that?

 120 4 A. Yes.

120:19 - 120:24 Ronald Kieper 12/19/2019

 120 19 Q. It says: "The Goal: The rating is

 120 20 intended to be subtracted from noise exposure

 120 21 information to determine if attenuation is adequate

 120 22 for each worker."

 120 23 Do you see that?

 120 24 A. I see that.

120:25 - 121:4 Ronald Kieper 12/19/2019

 120 25 Q. Do you agree with that?

 121 1 MS. ELIZABETH: Objection; form, foundation.

 121 2 BY THE WITNESS:

 121 3 A. That's -- that's one way to -- to use the

 121 4 NRR.

Re: [120:25-121:4]

Def Obj Foundation (602); 702

OVERRULED

121:7 - 121:14 Ronald Kieper 12/19/2019

 121 7 "Rating should represent most users."

 121 8 Do you see that?

 121 9 A. I see that, yes.

 121 10 Q. Okay. And then on the next page we

 121 11 actually see example of some attenuation data from a

 121 12 test, right?

 121 13 A. Yes.

 121 14 Q. And this is the .17.

121:15 - 121:19 Ronald Kieper 12/19/2019

 121 15 These -- the subject initials are actually

 121 16 folks from your E-A-RCAL Lab, right?

 121 17 MS. ELIZABETH: Objection; foundation.

 121 18 BY THE WITNESS:

 121 19 A. I recognize the initials, yes.

Re: [121:15-121:19]

Def Obj Foundation (602); relevance 

(401, 402)

OVERRULED

121:21 - 122:16 Ronald Kieper 12/19/2019

 121 21 Q. Okay. Any of those folks Aearo employees

 121 22 during your time at Aearo, sir?

 121 23 A. One, two --

 121 24 Q. To your memory?

 121 25 A. -- three. Three were employees that I

Re: [121:21-122:16]

Def Obj Relevance (401, 402)

OVERRULED

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Ronald Kieper 12/19/2019 19

 122 1 recall.

 122 2 Q. Three. Who were they?

 122 3 A. GWG, TLS and BAK.

 122 4 Q. Any of those folks on the list family

 122 5 members of employees?

 122 6 A. Yes.

 122 7 Q. Who?

 122 8 A. I could be wrong, but I believe KJC was

 122 9 married to an employee, whoever she was married to

 122 10 they divorced, but she wasn't married at the time that

 122 11 I worked with her. She was on the test panel before I

 122 12 came. And DVF is the wife of an employee.

 122 13 Q. Who is the employee?

 122 14 A. Robert Falco.

 122 15 CRF is my stepson. CRR is Christopher

 122 16 Rowland of whom we spoke earlier.

122:22 - 122:25 Ronald Kieper 12/19/2019

 122 22 Q. Okay. So from the -- of the ten people on

 122 23 this example attenuation report, there are three

 122 24 employees and four family members of employees?

 122 25 A. Yes.

Re: [122:22-122:25]

Def Obj Relevance (401, 402)

OVERRULED

124:12 - 124:21 Ronald Kieper 12/19/2019

 124 12 Q. So you'd reuse -- excuse the language --

 124 13 but these test subjects could be used over and over

 124 14 and over again to test Aearo products?

 124 15 A. They could test Aearo products and

 124 16 other -- other products also, yes.

 124 17 Q. And did that happen, did any of these

 124 18 people participate in multiple tests, these employees

 124 19 and family members?

 124 20 A. Well, all of the -- all of the test

 124 21 subjects participated in multiple tests, yes.

Re: [124:12-124:21]

Def Obj Relevance (401, 402)

OVERRULED

132:23 - 133:5 Ronald Kieper 12/19/2019

 132 23 Q. Okay. I'm just wondering, sir, in

 132 24 connection with these tests, when you were composing

 132 25 your test panels, did you attempt to get a random

 133 1 sample of the users who would be using the product as

 133 2 your test subjects?

 133 3 MS. ELIZABETH: Objection; form.

Re: [132:23-133:5]

Def Obj Foundation (602); vague (611, 

403); prejudicial (403)

OVERRULED

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Ronald Kieper 12/19/2019 20

 133 4 BY THE WITNESS:

 133 5 A. No.

133:7 - 133:13 Ronald Kieper 12/19/2019

 133 7 Q. What measures did you take, sir, to ensure

 133 8 that the test subjects actually represented a normal

 133 9 distribution of the population that would be exposed

 133 10 to the product?

 133 11 MS. ELIZABETH: Objection; form.

 133 12 BY THE WITNESS:

 133 13 A. I didn't do anything like that.

Re: [133:7-133:13]

Def Obj Vague (611, 403); prejudicial 

(403)

OVERRULED

133:15 - 133:17 Ronald Kieper 12/19/2019

 133 15 Q. Mr. Berger never instructed you to do

 133 16 that?

 133 17 A. I don't recall that, no.

133:18 - 134:1 Ronald Kieper 12/19/2019

 133 18 Q. You understand for this to work, sir, for

 133 19 the NRRs to have real-world implications, the test

 133 20 subjects have -- actually have to be sampled in a

 133 21 manner that represents a normal sample of the

 133 22 population that's going to be exposed to the product.

 133 23 Did you know that?

 133 24 MS. ELIZABETH: Objection; form, foundation.

 133 25 BY THE WITNESS:

 134 1 A. No, I didn't know that.

Re: [133:18-134:1]

Def Obj Foundation (602); 702; 

prejudicial (403); vague; argumentative 

(611, 403)

OVERRULED

134:3 - 134:10 Ronald Kieper 12/19/2019

 134 3 Q. What assurance, sir, do we have then if

 134 4 you didn't do that that the NRRs the company put on

 134 5 its products would indeed provide that minimum level

 134 6 of protection to 98 percent of the people that used

 134 7 it?

 134 8 MS. ELIZABETH: Objection; form, foundation.

 134 9 BY THE WITNESS:

 134 10 A. I don't know.

Re: [134:3-134:10]

Def Obj Foundation (602); 702; vague;

misstates; argumentative (611, 403)

OVERRULED

136:12 - 136:19 Ronald Kieper 12/19/2019

 136 12 Moving beyond some of the preliminary

 136 13 issues, as I understand your testimony to this point,

 136 14 your -- your testing with regard to the Combat Arms

 136 15 involved really three areas: REAT testing, insertion

 136 16 loss testing and I'll call it acoustic resistance

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Ronald Kieper 12/19/2019 21

 136 17 measurement of the Combat Arms.

 136 18 Fair?

 136 19 A. Yes.

136:20 - 136:25 Ronald Kieper 12/19/2019

 136 20 Q. Okay. With regard to human testing or

 136 21 gold standard testing, what type of tests would those

 136 22 be?

 136 23 MS. ELIZABETH: Objection; form.

 136 24 BY THE WITNESS:

 136 25 A. Human testing is real-ear testing.

Re: [136:20-136:25]

Def Obj Vague; misstates (611, 403)

OVERRULED

136:26 - 137:7 Ronald Kieper 12/19/2019

 137 1 BY MR. BUCHANAN:

 137 2 Q. Is what testing, sir? I'm sorry.

 137 3 A. Real-ear.

 137 4 Q. Real-ear testing.

 137 5 We've seen the acronym in documents "REAT"

 137 6 testing?

 137 7 A. Yes.

137:21 - 138:6 Ronald Kieper 12/19/2019

 137 21 Q. Okay. I'll represent to you, sir, that

 137 22 the first sales of the Combat Arms Version 2 occurred

 137 23 in late summer of 1999.

 137 24 Have you seen any testing by you

 137 25 concerning the Combat Arms prior to the first sale?

 138 1 MS. ELIZABETH: Objection to form. You do not

 138 2 have to accept that premise, otherwise you can answer

 138 3 the question.

 138 4 BY THE WITNESS:

 138 5 A. The question was have I -- have I seen the

 138 6 test reports on the Combat Arms earplugs?

Re: [137:21-138:6]

Def Obj Misstates (611, 403); 

foundation (602)

SUSTAINED

138:7 - 138:9 Ronald Kieper 12/19/2019

 138 7 BY MR. BUCHANAN:

 138 8 Q. No, sir.

 138 9 A. Okay.

138:10 - 138:19 Ronald Kieper 12/19/2019

 138 10 Q. I said I'll represent to you that first

 138 11 sales of the Combat Arms as testified to by Mr. Myers

 138 12 last week were in the summer of 1999.

 138 13 Do you have a different understanding?

Re: [138:10-138:19]

Def Obj Misstates (611, 403); 

foundation (602)

OVERRULED

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Ronald Kieper 12/19/2019 22

 138 14 MS. ELIZABETH: Objection.

 138 15 A. I don't know --

 138 16 MS. ELIZABETH: Objection to form, foundation.

 138 17 BY THE WITNESS:

 138 18 A. I don't know when the plugs were first

 138 19 sold.

138:21 - 138:23 Ronald Kieper 12/19/2019

 138 21 Q. Okay. And when did you start -- when did

 138 22 you first start testing Combat Arms?

 138 23 A. I'm not sure. Sometime in 1999, perhaps.

142:6 - 142:10 Ronald Kieper 12/19/2019

 142 6 Q. Okay. In fact, the product went to market

 142 7 with no REAT testing, right?

 142 8 MS. ELIZABETH: Objection; form, foundation.

 142 9 BY THE WITNESS:

 142 10 A. I don't know that.

Re: [142:6-142:10]

Def Obj Foundation (602); vague; 

misstates (611, 403)

OVERRULED

144:15 - 144:19 Ronald Kieper 12/19/2019

 144 15 Q. I'm passing you Exhibit 12, sir.

 144 16 This is an e-mail from Mr. Berger at his,

 144 17 I guess his personal e-mail account to Brian Myers.

 144 18 Do you see that?

 144 19 A. Yes.

145:4 - 145:6 Ronald Kieper 12/19/2019

 145 4 Q. Okay. And you see the heading "Combat

 145 5 Arms plug"?

 145 6 A. Yes, that's under subject, yes.

145:17 - 145:22 Ronald Kieper 12/19/2019

 145 17 Q. And it is an e-mail to a -- addressed in

 145 18 the body to an Armand.

 145 19 Did you ever deal with an Armand Dancer

 145 20 from ISL concerning the Combat Arms plug?

 145 21 A. I may have met Mr. Dancer, but I don't

 145 22 recall.

146:25 - 147:7 Ronald Kieper 12/19/2019

 146 25 Q. Okay. This e-mail drafted to an Armand,

 147 1 it says:

 147 2 "It recently occurred to us that we have

 147 3 no data on the actual version of the nonlinear earplug

 147 4 that we are now selling in the US, namely, the

Re: [146:25-147:7]

Def Obj Foundation (602)

OVERRULED

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Ronald Kieper 12/19/2019 23

 147 5 dual-ended Combat Arms plug."

 147 6 Do you see that, sir?

 147 7 A. I see that.

147:8 - 147:15 Ronald Kieper 12/19/2019

 147 8 Q. Does that help clarify for you, sir, that

 147 9 at least as of this point in time in November 19,

 147 10 1999, the company was already selling the plug?

 147 11 MS. ELIZABETH: Objection; form, foundation,

 147 12 asked and answered.

 147 13 BY THE WITNESS:

 147 14 A. I don't know. That's -- that's what this

 147 15 says.

Re: [147:8-147:15]

Def Obj Foundation (602); asked; 

argumentative (611, 403)

OVERRULED

147:16 - 147:16 Ronald Kieper 12/19/2019

 147 16 BY MR. BUCHANAN:

147:17 - 147:23 Ronald Kieper 12/19/2019

 147 17 Q. Okay. I mean, you worked with Mr. Berger.

 147 18 Do you have a reason to disagree with him on it?

 147 19 MS. ELIZABETH: Objection; form, foundation,

 147 20 asked and answered.

 147 21 BY THE WITNESS:

 147 22 A. I don't have a reason to agree or disagree

 147 23 with him.

Re: [147:17-147:23]

Def Obj Foundation (602); asked; 

argumentative (611, 403)

OVERRULED

148:12 - 148:25 Ronald Kieper 12/19/2019

 148 12 Q. Okay.

 148 13 "It recently occurred to us that we have

 148 14 no data on the actual version of the nonlinear earplug

 148 15 that we are now selling."

 148 16 Are you aware of any data the company had

 148 17 on the Combat Arms Earplug that you were selling

 148 18 November 19, 1999, concerning testing on humans?

 148 19 A. I'm not aware of -- of any.

 148 20 Q. Okay. All right. So that's helpful, sir.

 148 21 So you'd agree with me that you are not

 148 22 aware of any testing that had been conducted, REAT

 148 23 testing concerning the Combat Arms Earplug prior to

 148 24 November 19, 1999, right?

 148 25 A. No, I'm not aware of any.

Re: [148:12-148:25]

Def Obj Relevance (401, 402)

OVERRULED

148:26 - 149:1 Ronald Kieper 12/19/2019

 149 1 Q. Okay. And then it continues:

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Ronald Kieper 12/19/2019 24

149:1 - 149:6 Ronald Kieper 12/19/2019

 149 1 Q. Okay. And then it continues:

 149 2 "Therefore, we will be conducting REAT

 149 3 evaluations in the near future on both ends of the

 149 4 plug."

 149 5 Do you see that?

 149 6 A. I see that, yes.

Re: [149:1-149:6]

Def Obj Relevance (401, 402)

OVERRULED

149:16 - 149:20 Ronald Kieper 12/19/2019

 149 16 "Therefore, we will be conducting REAT

 149 17 evaluations in the near future on both ends of the

 149 18 plug."

 149 19 Do you see that?

 149 20 A. Yes, I see that.

Re: [149:16-149:20]

Def Obj Relevance (401, 402)

SUSTAINED

149:21 - 149:24 Ronald Kieper 12/19/2019

 149 21 Q. And did you, in fact, conduct REAT

 149 22 evaluations in the near future on both ends of the

 149 23 plug, you, sir?

 149 24 A. I did.

150:22 - 151:2 Ronald Kieper 12/19/2019

 150 22 Q. Okay. And you first conducted those tests

 150 23 after this e-mail, November 19, 1999, right?

 150 24 MS. ELIZABETH: Objection; form.

 150 25 BY THE WITNESS:

 151 1 A. I tested the Combat Arms plug in de --

 151 2 starting in December of 1999.

Re: [150:22-151:2]

Def Obj Foundation (602); asked; 

argumentative (611, 403)

OVERRULED

151:4 - 151:9 Ronald Kieper 12/19/2019

 151 4 Q. Okay. So that would obviously be after

 151 5 this and consistent with the fact that there had not

 151 6 been a REAT test done prior to this e-mail, right?

 151 7 MS. ELIZABETH: Objection; form, foundation.

 151 8 BY THE WITNESS:

 151 9 A. That's what this says.

Re: [151:4-151:9]

Def Obj Asked (611, 403); foundation 

(602)

OVERRULED

151:11 - 151:16 Ronald Kieper 12/19/2019

 151 11 Q. Okay. Does that concern you a little bit,

 151 12 sir, that you are selling a hearing protection device

 151 13 without having conducted testing on it before?

 151 14 MS. ELIZABETH: Objection; form, assumes facts,

 151 15 foundation, asked and answered.

 151 16 BY THE WITNESS:

Re: [151:11-151:16]

Def Obj Foundation (602); misstates; 

asked; argumentative (611, 403)

OVERRULED

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Ronald Kieper 12/19/2019 25

151:17 - 151:18 Ronald Kieper 12/19/2019

 151 17 A. No, I have no opinion on that. That's

 151 18 beyond my -- the scope of my job.

Re: [151:17-151:18]

Def Obj Foundation (602); misstates; 

asked; argumentative (611, 403)

OVERRULED

152:16 - 152:22 Ronald Kieper 12/19/2019

 152 16 Q. Okay. And so that had to be a little

 152 17 concerning, right?

 152 18 MS. ELIZABETH: Objection; form, asked and

 152 19 answered.

 152 20 BY THE WITNESS:

 152 21 A. I wasn't aware of it, so I couldn't be

 152 22 concerned.

Re: [152:16-152:22]

Def Obj Foundation (602); asked; 

misstates (611, 403)

SUSTAINED

157:18 - 157:24 Ronald Kieper 12/19/2019

 157 18 Q. And you started that testing, sir, and you

 157 19 started on the open end in December of 1999, right?

 157 20 MS. ELIZABETH: Objection; form.

 157 21 BY THE WITNESS:

 157 22 A. My recollection is that I tested both

 157 23 ends. I may have begun the same day or in

 157 24 approximately the same timeframe, yes.

Re: [157:18-157:24]

Def Obj Vague (611, 403)

OVERRULED

158:1 - 158:8 Ronald Kieper 12/19/2019

 158 1 Q. Okay. You tested both ends. When you say

 158 2 "the ends," there is the open end or the yellow end,

 158 3 the nonlinear end, right?

 158 4 A. Yes.

 158 5 Q. And you tested the closed end or the green

 158 6 end or the continuous noise end in a separate set of

 158 7 tests, right?

 158 8 A. Yes.

159:15 - 159:20 Ronald Kieper 12/19/2019

 159 15 You started running this test in December

 159 16 of 1999, and who killed the study on the closed end?

 159 17 MS. ELIZABETH: Objection; form.

 159 18 BY THE WITNESS:

 159 19 A. Elliott would have told me to stop the

 159 20 test on the closed end.

Re: [159:15-159:20]

Def Obj Misstates; argumentative (611, 

403)

OVERRULED

162:11 - 162:15 Ronald Kieper 12/19/2019

 162 11 Q. You didn't test your products that way,

 162 12 did you?

 162 13 MS. ELIZABETH: Objection; form.

Re: [162:11-162:15]

Def Obj Misstates; vague; 

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

18

OVERRULED

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Ronald Kieper 12/19/2019 26

 162 14 BY THE WITNESS:

 162 15 A. Yes.

162:16 - 162:16 Ronald Kieper 12/19/2019

 162 16 BY MR. BUCHANAN:

162:17 - 163:3 Ronald Kieper 12/19/2019

 162 17 Q. The way you did it, you would test a

 162 18 subject, you would see what the NRR was for that

 162 19 particular subject, you would then test another

 162 20 subject, run your calculation to see what that NRR

 162 21 was, you'd be in real-time communication with

 162 22 Mr. Berger on what direction the test was going in,

 162 23 and then sometimes Mr. Berger would say, Kill the

 162 24 study, right?

 162 25 MS. ELIZABETH: Objection; form.

 163 1 BY THE WITNESS:

 163 2 A. There were times when Elliott would stop a

 163 3 test.

Re: [162:17-163:3]

Def Obj Argumentative; misstates (611, 

403); foundation (602); 3M MIL No. 18

OVERRULED

163:17 - 163:24 Ronald Kieper 12/19/2019

 163 17 Q. You were keeping the lab director updated

 163 18 at his request, at Mr. Berger's request, on the NRRs

 163 19 you were getting as the study was going along, isn't

 163 20 that right?

 163 21 MS. ELIZABETH: Objection; form.

 163 22 BY THE WITNESS:

 163 23 A. My recollection is that I would update him

 163 24 on how many people I had tested.

Re: [163:17-163:24]

Def Obj Misstates; argumentative (611, 

403); 3M MIL No. 18

OVERRULED

164:1 - 164:5 Ronald Kieper 12/19/2019

 164 1 Q. And the NRR you were getting, right?

 164 2 MS. ELIZABETH: Objection; form.

 164 3 BY THE WITNESS:

 164 4 A. I would show him the results that we were

 164 5 getting, yes.

Re: [164:1-164:5]

Def Obj Misstates; argumentative (611, 

403); 3M MIL No. 18

OVERRULED

164:7 - 164:10 Ronald Kieper 12/19/2019

 164 7 Q. And you were computing the NRRs as each

 164 8 subject went through the tests, right?

 164 9 A. That wasn't my normal way to do things,

 164 10 no.

Re: [164:7-164:10]

Pltf Obj beyond the scope of 

clarification counter and the answer is 

non-responsive

OVERRULED

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Ronald Kieper 12/19/2019 27

164:18 - 164:25 Ronald Kieper 12/19/2019

 164 18 Q. And providing him with where you were in

 164 19 the NRRs on the studies that were ongoing and not yet

 164 20 final, correct?

 164 21 MS. ELIZABETH: Objection; form, asked and

 164 22 answered.

 164 23 BY THE WITNESS:

 164 24 A. I would -- yes, I would communicate with

 164 25 him.

Re: [164:18-164:25]

Def Obj Misstates; argumentative; 

asked (611, 403)

OVERRULED

165:2 - 165:7 Ronald Kieper 12/19/2019

 165 2 Q. And Elliott if he didn't like the NRR you

 165 3 were getting would sometimes kill the study, right?

 165 4 MS. ELIZABETH: Objection; form.

 165 5 BY THE WITNESS:

 165 6 A. I don't recall why -- I don't know why he

 165 7 would stop studies. He didn't tell me.

Re: [165:2-165:7]

Def Obj Foundation (602); misstates; 

argumentative; asked (611, 403); 3M 

MIL No. 18

OVERRULED

165:9 - 165:15 Ronald Kieper 12/19/2019

 165 9 Q. Who stopped 213015, the study you started

 165 10 in December of 2000 -- excuse me -- December of 1999?

 165 11 Who gave the order?

 165 12 MS. ELIZABETH: Objection; form.

 165 13 BY THE WITNESS:

 165 14 A. I would assume it was Elliott that told me

 165 15 to stop the test.

Re: [165:9-165:15]

Def Obj Foundation (602); 3M MIL 

No. 18; asked (611, 403)

OVERRULED

165:17 - 165:19 Ronald Kieper 12/19/2019

 165 17 Q. Please tell the jury how many subjects you

 165 18 had already tested in that 10-person study?

 165 19 A. I believe we had tested eight people.

Re: [165:17-165:19]

Def Obj 3M MIL No. 18

OVERRULED

166:10 - 166:16 Ronald Kieper 12/19/2019

 166 10 Please tell the jury the NRR you had

 166 11 computed for the eight people in the study that was

 166 12 killed or terminated by Mr. Berger?

 166 13 MS. ELIZABETH: Objection; form.

 166 14 BY THE WITNESS:

 166 15 A. For the eight subjects we had tested, the

 166 16 NRR would compute to around an 11.

Re: [166:10-166:16]

Def Obj Misstates; argumentative (611, 

403); 3M MIL No. 18

OVERRULED

167:7 - 167:12 Ronald Kieper 12/19/2019

 167 7 At the point in time Mr. Berger killed

 167 8 study 213015, you had already tested eight people,

Re: [167:7-167:12]

Def Obj Misstates; asked (611, 403); 

3M MIL No. 18

OVERRULED

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Ronald Kieper 12/19/2019 28

 167 9 right?

 167 10 MS. ELIZABETH: Objection; form.

 167 11 BY THE WITNESS:

 167 12 A. Yes, we tested eight people.

167:14 - 167:19 Ronald Kieper 12/19/2019

 167 14 Q. There was a need to get data out because

 167 15 the product was already being sold, right?

 167 16 MS. ELIZABETH: Objection; form, foundation,

 167 17 asked and answered.

 167 18 BY THE WITNESS:

 167 19 A. I wasn't aware of it.

Re: [167:14-167:19]

Def Obj Asked; misstates (611, 403); 

foundation (602)

SUSTAINED

167:23 - 167:23 Ronald Kieper 12/19/2019

 167 23 A. I wasn't aware of that.

167:25 - 168:5 Ronald Kieper 12/19/2019

 167 25 Q. You see that certainly in Mr. Berger's

 168 1 correspondence that the product was already being

 168 2 sold, correct?

 168 3 MS. ELIZABETH: Objection; form, foundation.

 168 4 BY THE WITNESS:

 168 5 A. This e-mail says that, yes.

Re: [167:25-168:5]

Def Obj Misstates; asked (611, 403); 

foundation (602)

OVERRULED

168:7 - 168:13 Ronald Kieper 12/19/2019

 168 7 Q. Okay. So rather than get that data in

 168 8 January of 2000 with the NRR of 11, Mr. Berger did

 168 9 what?

 168 10 MS. ELIZABETH: Objection; form.

 168 11 BY THE WITNESS:

 168 12 A. Mr. Berger told me to stop the test after

 168 13 eight subjects.

Re: [168:7-168:13]

Def Obj Misstates; asked; 

argumentative (611, 403); foundation 

(602); 3M MIL No. 18

OVERRULED

168:14 - 168:14 Ronald Kieper 12/19/2019

 168 14 BY MR. BUCHANAN:

168:14 - 168:14 Ronald Kieper 12/19/2019

 168 14 BY MR. BUCHANAN:

168:15 - 168:20 Ronald Kieper 12/19/2019

 168 15 Q. He was happy with the numbers he was

 168 16 getting on the open end?

 168 17 MS. ELIZABETH: Objection; form, foundation.

 168 18 BY THE WITNESS:

 168 19 A. I don't recall him saying anything about

 168 20 it.

Re: [168:15-168:20]

Def Obj Misstates (611, 403); 

foundation (602)

OVERRULED

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Ronald Kieper 12/19/2019 29

168:21 - 168:21 Ronald Kieper 12/19/2019

 168 21 BY MR. BUCHANAN:

168:21 - 168:21 Ronald Kieper 12/19/2019

 168 21 BY MR. BUCHANAN:

168:22 - 168:24 Ronald Kieper 12/19/2019

 168 22 Q. Well, did he -- did he terminate the study

 168 23 on the open end?

 168 24 A. No.

Re: [168:22-168:24]

Def Obj Argumentative (611, 403); 3M 

MIL No. 18

OVERRULED

169:17 - 170:1 Ronald Kieper 12/19/2019

 169 17 Q. Okay. So with your testimony, sir, and in

 169 18 absence of any memory of a difference in the way you

 169 19 were fitting the yellow end from the green end, why

 169 20 did Mr. Berger, to your understanding, allow the

 169 21 yellow end of the study to continue but not the green

 169 22 end?

 169 23 MS. ELIZABETH: Objection; foundation.

 169 24 BY THE WITNESS:

 169 25 A. He just allowed me to finish the test.

 170 1 I -- I don't recall specifically.

Re: [169:17-170:1]

Def Obj Foundation (602); 

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

18

OVERRULED

170:2 - 170:2 Ronald Kieper 12/19/2019

 170 2 BY MR. BUCHANAN:

170:3 - 170:6 Ronald Kieper 12/19/2019

 170 3 Q. Did he like that NRR better?

 170 4 MS. ELIZABETH: Objection; foundation, form.

 170 5 BY THE WITNESS:

 170 6 A. I don't know.

Re: [170:3-170:6]

Def Obj Foundation (602); misstates; 

argumentative; vague (611, 403)

SUSTAINED

171:24 - 172:3 Ronald Kieper 12/19/2019

 171 24 Q. So Mr. Berger in January of 1999 allows

 171 25 you to continue to conclusion the study on the yellow

 172 1 end, right?

 172 2 A. I believe that was completed in January,

 172 3 yes.

Re: [171:24-172:3]

Def Obj 3M MIL No. 18

OVERRULED

172:4 - 172:9 Ronald Kieper 12/19/2019

 172 4 Q. But he killed the one on the closed end,

 172 5 right?

 172 6 MS. ELIZABETH: Objection; form.

 172 7 BY THE WITNESS:

 172 8 A. He stopped -- he told me to stop the test,

 172 9 yes.

Re: [172:4-172:9]

Def Obj Misstates; asked; 

argumentative (611, 403); foundation 

(602); 3M MIL No. 18

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 41 of 128
Ronald Kieper 12/19/2019 30

190:21 - 191:6 Ronald Kieper 12/19/2019

 190 21 Sir, before the break we were talking

 190 22 about this situation in the fall of 1999 where your

 190 23 company was selling the Combat Arms, at least

 190 24 according to Mr. Berger, with no REAT data, testing

 190 25 data on people.

 191 1 Do you recall that discussion?

 191 2 MS. ELIZABETH: Objection; form. There is not a

 191 3 question pending. Oh, I misspoke. Objection; form.

 191 4 BY MR. BUCHANAN:

 191 5 Q. You can answer.

 191 6 A. Yes.

Re: [190:21-191:6]

Def Obj Misstates (611, 403)

SUSTAINED

191:7 - 191:14 Ronald Kieper 12/19/2019

 191 7 Q. Okay. And we were talking about how you

 191 8 got the call sometime November, December 1999, had to

 191 9 get some REAT data on the Combat Arms.

 191 10 Do you remember that?

 191 11 MS. ELIZABETH: Objection; form.

 191 12 BY THE WITNESS:

 191 13 A. I don't remember the conversation, but I

 191 14 remember us talking about it today.

Re: [191:7-191:14]

Def Obj Misstates; vague (611, 403); 

foundation (602)

OVERRULED

191:15 - 192:2 Ronald Kieper 12/19/2019

 191 15 BY MR. BUCHANAN:

 191 16 Q. Okay. And you started two tests. You

 191 17 started a test called 015 that was testing the closed

 191 18 end of the Combat Arms. That was one of those tests,

 191 19 right?

 191 20 A. Yes.

 191 21 Q. I said 015. That's 213015 is the test

 191 22 number of the closed end, first closed end test you

 191 23 ran, right?

 191 24 A. Yes.

 191 25 Q. You were separately running a test 213016

 192 1 on the open end of the plug, correct, sir?

 192 2 A. Yes.

193:2 - 193:11 Ronald Kieper 12/19/2019

 193 2 Q. Okay, sir. Let's just be clear. In

 193 3 December 1999, January 2000, you shared data from your

 193 4 first test on the closed end of the plug with

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 42 of 128
Ronald Kieper 12/19/2019 31

 193 5 Mr. Berger, right?

 193 6 A. That sounds right, yes.

 193 7 Q. He told you to stop the study, right?

 193 8 A. That's my recollection, yes.

 193 9 Q. He allowed the study or allowed you to

 193 10 continue the study with the open end, right?

 193 11 A. Yes, I finished that study.

193:12 - 193:20 Ronald Kieper 12/19/2019

 193 12 Q. Two studies going on at the same time, one

 193 13 on the open end, one on the closed end, and you show

 193 14 the data to Mr. Berger before you've completed either

 193 15 of them, he said, Terminate the study on the closed

 193 16 end, right?

 193 17 MS. ELIZABETH: Objection; form.

 193 18 BY THE WITNESS:

 193 19 A. That's -- I stopped the test at his

 193 20 direction, yes.

Re: [193:12-193:20]

Def Obj Misstates; argumentative (611, 

403)

OVERRULED

193:25 - 194:6 Ronald Kieper 12/19/2019

 193 25 You had observed some problems with the

 194 1 closed end of the plug, right, with your testing of

 194 2 the closed end of the plug, isn't that right, sir?

 194 3 MS. ELIZABETH: Objection; form, asked and

 194 4 answered.

 194 5 BY THE WITNESS:

 194 6 A. I don't recall that.

Re: [193:25-194:6]

Def Obj Vague; asked; misstates (611, 

403)

OVERRULED

194:7 - 194:9 Ronald Kieper 12/19/2019

 194 7 BY MR. BUCHANAN:

 194 8 Q. You had some problems with it. It

 194 9 wouldn't stay sealed, right?

194:12 - 194:15 Ronald Kieper 12/19/2019

 194 12 A. No.

 194 13 BY MR. BUCHANAN:

 194 14 Q. You don't recall that, sir?

 194 15 A. I don't recall this specific test, no.

194:16 - 195:1 Ronald Kieper 12/19/2019

 194 16 Q. In your meetings over five days with

 194 17 lawyers, sir, are you telling us that you didn't have

 194 18 an opportunity to review your report concerning these

 194 19 two tests?

Re: [194:16-195:1]

Def Obj Argumentative; vague (611, 

403)

SUSTAINED as to “In you meetings 

over five days with lawyers”

OVERRULED in all other respects

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 43 of 128
Ronald Kieper 12/19/2019 32

 194 20 MS. ELIZABETH: Objection; form with respect to

 194 21 anything he did with his lawyers, otherwise you can

 194 22 answer.

 194 23 BY MR. BUCHANAN:

 194 24 Q. I'm just asking whether you had a chance

 194 25 to review it, sir?

 195 1 A. I looked at both 015, 016, yes.

195:2 - 195:7 Ronald Kieper 12/19/2019

 195 2 Q. Okay. When you just say you don't recall

 195 3 the studies, sir, you spent five days with lawyers, I

 195 4 think you told us.

 195 5 Do you remember that?

 195 6 MS. ELIZABETH: Objection; form.

 195 7 BY THE WITNESS:

Re: [195:2-195:7]

Def Obj Argumentative (611, 403)

SUSTAINED

195:8 - 195:8 Ronald Kieper 12/19/2019

 195 8 A. Yes.

Re: [195:8-195:8]

Def Obj Argumentative (611, 403)

SUSTAINED

195:10 - 195:16 Ronald Kieper 12/19/2019

 195 10 Q. You could agree, sir, that you looked at

 195 11 your report of these studies before you came in to

 195 12 talk to the jury today, right?

 195 13 A. I didn't look at them today, no.

 195 14 Q. Not today. Before you came in today as

 195 15 part of your preparation?

 195 16 A. Yes.

Re: [195:10-195:16]

Def Obj Relevance (401, 402); 

cumulative (403)

OVERRULED

195:17 - 195:19 Ronald Kieper 12/19/2019

 195 17 Q. You saw the reports of these studies,

 195 18 didn't you, sir?

 195 19 A. Yes.

195:23 - 196:4 Ronald Kieper 12/19/2019

 195 23 (WHEREUPON, a certain document was

 195 24 marked Ron Kieper Deposition Exhibit

 195 25 No. 14, for identification, as of

 196 1 12/19/2019.)

 196 2 BY MR. BUCHANAN:

 196 3 Q. I'm passing you Exhibit 14 to your

 196 4 deposition, sir.

196:12 - 197:16 Ronald Kieper 12/19/2019

 196 12 Q. Sir, before you is Exhibit 14. It is a

 196 13 memo from yourself to Mr. Elliott Berger.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 44 of 128
Ronald Kieper 12/19/2019 33

 196 14 Do you see that?

 196 15 A. Yes, I do.

 196 16 Q. He was your boss at this point in time,

 196 17 right?

 196 18 A. Yes, he was.

 196 19 Q. It says: "Results of short-stemmed

 196 20 UltraFit Plug tests."

 196 21 Do you see that?

 196 22 A. Yes.

 196 23 Q. Okay. It says: "A short-stemmed UltraFit

 196 24 plug evaluated in tests 213015 and 213017 is the

 196 25 opposite end of the Combat Arms plug." It says:

 197 1 "(See attached drawing)." He continues further in the

 197 2 paragraph.

 197 3 Do you see where it talks about the

 197 4 initial test results?

 197 5 A. The initial test 213015.

 197 6 Q. Do you see that?

 197 7 A. I do.

 197 8 Q. Okay. "The initial test 213015 was

 197 9 stopped after eight subjects..."

 197 10 Do you see that?

 197 11 A. Yes.

 197 12 Q. And it says why, right?

 197 13 A. It says -- yes, it says "because."

 197 14 Q. "...because the results were variable and

 197 15 the NRR was" what, sir?

 197 16 A. It says "quite low."

197:21 - 197:25 Ronald Kieper 12/19/2019

 197 21 In your words, sir, an NRR of 11 for a

 197 22 plug like this was quite low, right, sir?

 197 23 MS. ELIZABETH: Objection; form.

 197 24 BY THE WITNESS:

 197 25 A. That's what I wrote in the memo, yes.

Re: [197:21-197:25]

Def Obj Misstates; argumentative (611, 

403)

OVERRULED

197:26 - 198:1 Ronald Kieper 12/19/2019

 198 1 BY MR. BUCHANAN:

198:2 - 198:7 Ronald Kieper 12/19/2019

 198 2 Q. And that test was stopped by Mr. Berger

 198 3 with knowledge of that, right, sir?

Re: [198:2-198:7]

Def Obj Misstates; argumentative (611, 

403); foundation (602); 3M MIL No. 18

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 45 of 128
Ronald Kieper 12/19/2019 34

 198 4 MS. ELIZABETH: Objection; form.

 198 5 BY THE WITNESS:

 198 6 A. I don't know what his knowledge was, but

 198 7 he is the one that stopped the test, yes.

198:8 - 199:1 Ronald Kieper 12/19/2019

 198 8 BY MR. BUCHANAN:

 198 9 Q. Okay. And then you did a retest, right?

 198 10 A. Yes, we tested the plug again.

 198 11 Q. Okay. And you note there at the bottom:

 198 12 "For test 213017," again, you're testing the green end

 198 13 in test 213017, the closed end, right?

 198 14 A. Yes, that's correct.

 198 15 Q. And what you wrote, sir, was for that

 198 16 test: "The yellow flanges of the Combat Arms end of

 198 17 the plug were folded back prior to the plug being

 198 18 fit."

 198 19 Do you see that, sir?

 198 20 A. This is down at the bottom of Paragraph 2,

 198 21 yes.

 198 22 Q. That's correct, right?

 198 23 A. "The folded black" -- "The folded-back

 198 24 flanges provided a longer stem for the experimenter to

 198 25 grasp and allowed for a deeper and more consistent fit

 199 1 of the plugs for test 213017."

199:2 - 199:8 Ronald Kieper 12/19/2019

 199 2 Q. And my question to you, sir, is that is

 199 3 what you did when you fit the plugs for test 213017,

 199 4 correct, sir?

 199 5 MS. ELIZABETH: Objection; form, vague.

 199 6 BY THE WITNESS:

 199 7 A. That's what it says here. I don't recall

 199 8 the specific test.

Re: [199:2-199:8]

Def Obj Vague (611, 403)

OVERRULED

199:9 - 199:9 Ronald Kieper 12/19/2019

 199 9 BY MR. BUCHANAN:

199:10 - 199:14 Ronald Kieper 12/19/2019

 199 10 Q. Well, you're not fussing with what you

 199 11 wrote, right?

 199 12 MS. ELIZABETH: Objection; form.

Re: [199:10-199:14]

Def Obj Argumentative (611, 403); 

cumulative ( 403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 46 of 128
Ronald Kieper 12/19/2019 35

 199 13 BY THE WITNESS:

 199 14 A. I'm saying that that's what I wrote, yes.

199:15 - 199:15 Ronald Kieper 12/19/2019

 199 15 BY MR. BUCHANAN:

199:16 - 199:22 Ronald Kieper 12/19/2019

 199 16 Q. Right.

 199 17 And I take it, sir, sitting here today

 199 18 you'd defer to what you wrote several years ago in a

 199 19 formal memo to your boss about what you did?

 199 20 MS. ELIZABETH: Objection; form.

 199 21 BY THE WITNESS:

 199 22 A. I don't recall.

Re: [199:16-199:22]

Def Obj Argumentative (611, 403)

OVERRULED

199:23 - 200:12 Ronald Kieper 12/19/2019

 199 23 BY MR. BUCHANAN:

 199 24 Q. Sir, what you -- this was a memo to your

 199 25 boss, correct?

 200 1 A. Yes.

 200 2 Q. About what you did, right?

 200 3 A. Yes.

 200 4 Q. In part about study 213017, correct, sir?

 200 5 A. Yes.

 200 6 Q. And what you wrote was for that test, "the

 200 7 yellow flanges of the Combat Arms end of the plug were

 200 8 folded back prior to the plug being fit."

 200 9 Did I read that correctly?

 200 10 A. Yes, you did.

 200 11 Q. Okay. And then you note what the benefits

 200 12 of that were, right?

200:15 - 200:23 Ronald Kieper 12/19/2019

 200 15 A. I wrote -- yeah, I wrote this last

 200 16 sentence.

 200 17 BY MR. BUCHANAN:

 200 18 Q. Right.

 200 19 And the benefits you wrote were that the

 200 20 folded-back flanges provided a longer stem for you to

 200 21 grasp first, right, that's the first point you made,

 200 22 right?

 200 23 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 47 of 128
Ronald Kieper 12/19/2019 36

200:24 - 201:2 Ronald Kieper 12/19/2019

 200 24 Q. And in doing that allowed for a deeper and

 200 25 more consistent fit of the plugs for test 213017,

 201 1 right, sir?

 201 2 A. That's what I wrote, yes.

Re: [200:24-201:2]

Def Obj Cumulative (403)

OVERRULED

201:3 - 201:3 Ronald Kieper 12/19/2019

 201 3 Q. Okay. And that's what you did?

201:6 - 201:7 Ronald Kieper 12/19/2019

 201 6 A. I don't recall, but that's what -- that's

 201 7 what I wrote.

201:6 - 201:7 Ronald Kieper 12/19/2019

 201 6 A. I don't recall, but that's what -- that's

 201 7 what I wrote.

201:18 - 201:19 Ronald Kieper 12/19/2019

 201 18 A. I have no recollection on either side,

 201 19 yes.

Re: [201:18-201:19]

Pltf Obj beyond the scope of 

confirmation counter

SUSTAINED

201:22 - 202:5 Ronald Kieper 12/19/2019

 201 22 Q. All right. And the problem that you had

 201 23 observed when you didn't fold back the flanges is also

 201 24 noted in this memo, right?

 201 25 MS. ELIZABETH: Objection; form.

 202 1 BY THE WITNESS:

 202 2 A. Let me look.

 202 3 Yes, it -- it lists some of the -- it

 202 4 says: "It was difficult to fit the plug deeply in

 202 5 some subjects' ear canals."

Re: [201:22-202:5]

Def Obj Argumentative (611, 403); 

cumulative (403)

OVERRULED

202:6 - 202:12 Ronald Kieper 12/19/2019

 202 6 BY MR. BUCHANAN:

 202 7 Q. Right.

 202 8 And so you had difficulty fitting the plug

 202 9 deeply in some subjects' ear canals, especially

 202 10 subjects with what size ear canals, sir?

 202 11 A. This states: "Especially those subjects

 202 12 with medium and larger ear canals."

202:13 - 202:19 Ronald Kieper 12/19/2019

 202 13 Q. Right.

 202 14 So you had difficulty fitting the plug

 202 15 deeply in subjects who had ear canals that were medium

 202 16 size, right?

Re: [202:13-202:19]

Def Obj Cumulative (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 48 of 128
Ronald Kieper 12/19/2019 37

 202 17 MS. ELIZABETH: Objection; form.

 202 18 BY THE WITNESS:

 202 19 A. It -- yeah, that's what it states here.

202:20 - 202:20 Ronald Kieper 12/19/2019

 202 20 BY MR. BUCHANAN:

202:21 - 202:25 Ronald Kieper 12/19/2019

 202 21 Q. Large size?

 202 22 MS. ELIZABETH: Objection; form.

 202 23 BY THE WITNESS:

 202 24 A. Yes. It says "medium and larger ear

 202 25 canals."

Re: [202:21-202:25]

Def Obj Foundation (602)

OVERRULED

202:26 - 203:1 Ronald Kieper 12/19/2019

 203 1 BY MR. BUCHANAN:

203:2 - 203:7 Ronald Kieper 12/19/2019

 203 2 Q. And that would also include extra large,

 203 3 right?

 203 4 MS. ELIZABETH: Objection; form.

 203 5 BY THE WITNESS:

 203 6 A. Larger would, yes, it would include large

 203 7 and extra large.

Re: [203:2-203:7]

Def Obj Cumulative (403)

OVERRULED

203:8 - 203:8 Ronald Kieper 12/19/2019

 203 8 BY MR. BUCHANAN:

203:9 - 203:15 Ronald Kieper 12/19/2019

 203 9 Q. And, please, sir, I mean, you fit a lot of

 203 10 folks over the years, what is it, about 70, 80 percent

 203 11 of the people have medium, large, extra large ear

 203 12 canals?

 203 13 MS. ELIZABETH: Objection; foundation.

 203 14 BY THE WITNESS:

 203 15 A. I -- I don't know that data.

Re: [203:9-203:15]

Def Obj Foundation (602)

SUSTAINED

203:15 - 203:18 Ronald Kieper 12/19/2019

 203 15 A. I -- I don't know that data.

 203 16 BY MR. BUCHANAN:

 203 17 Q. You don't have those stats, sir?

 203 18 A. No, I don't.

Re: [203:15-203:18]

Def Obj Foundation (602)

SUSTAINED

203:19 - 204:2 Ronald Kieper 12/19/2019

 203 19 Q. You also noted here in your memo, sir --

 203 20 and you wrote this memo, right?

 203 21 A. Yes, I believe I did.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 49 of 128
Ronald Kieper 12/19/2019 38

 203 22 Q. Okay. You also wrote: "Additionally, the

 203 23 geometry of the ear canal opening sometimes inhibited

 203 24 the deep plug insertion required for maximum

 203 25 attenuation values."

 204 1 Did I read that correctly?

 204 2 A. You did.

204:3 - 204:7 Ronald Kieper 12/19/2019

 204 3 Q. And that was true, right?

 204 4 MS. ELIZABETH: Objection; form.

 204 5 BY THE WITNESS:

 204 6 A. That's what I wrote, so I believed that to

 204 7 be true at that time, yes.

Re: [204:3-204:7]

Def Obj Argumentative (611, 403); 

cumulative (403)

OVERRULED

204:8 - 204:8 Ronald Kieper 12/19/2019

 204 8 BY MR. BUCHANAN:

204:9 - 204:14 Ronald Kieper 12/19/2019

 204 9 Q. You wrote it because it happened, right?

 204 10 MS. ELIZABETH: Objection; form.

 204 11 BY THE WITNESS:

 204 12 A. Yes, sometimes the plug -- sometimes the

 204 13 geometry of the ear canal opening would inhibit the

 204 14 deep insertion of the plug.

Re: [204:9-204:14]

Def Obj Asked; misstates; 

argumentative (611, 403); cumulative 

(403)

OVERRULED

204:15 - 204:20 Ronald Kieper 12/19/2019

 204 15 BY MR. BUCHANAN:

 204 16 Q. And you note that: "When this plug was

 204 17 fitted," and when we are talking about this plug, we

 204 18 are talking about the Combat Arms plug, right?

 204 19 A. We are talking about the green end of the

 204 20 Combat Arms plug.

205:2 - 205:7 Ronald Kieper 12/19/2019

 205 2 Q. It speaks to the situation when the third

 205 3 flange isn't folded back, right?

 205 4 A. It says: "The third flange of the Combat

 205 5 Arms plug could press against the subject's ear canal

 205 6 opening and fold up."

 205 7 Q. Right.

205:8 - 205:14 Ronald Kieper 12/19/2019

 205 8 You understand that to be referring to the

 205 9 opposite side of the Combat Arms, in this case the

 205 10 yellow, the third yellow flange when you are inserting

Re: [205:8-205:14]

Def Obj Vague (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 50 of 128
Ronald Kieper 12/19/2019 39

 205 11 the green flanges in?

 205 12 MS. ELIZABETH: Objection; form.

 205 13 BY THE WITNESS:

 205 14 A. Yes, I think that's -- that's true.

205:15 - 205:15 Ronald Kieper 12/19/2019

 205 15 BY MR. BUCHANAN:

205:16 - 205:20 Ronald Kieper 12/19/2019

 205 16 Q. And that was in fact true, right, that's

 205 17 what happened?

 205 18 MS. ELIZABETH: Objection; form.

 205 19 BY THE WITNESS:

 205 20 A. That's what I wrote, yes.

Re: [205:16-205:20]

Def Obj Asked; argumentative (611, 

403); cumulative (403)

SUSTAINED

205:21 - 205:21 Ronald Kieper 12/19/2019

 205 21 BY MR. BUCHANAN:

205:22 - 205:25 Ronald Kieper 12/19/2019

 205 22 Q. And you wrote it because it happened?

 205 23 MS. ELIZABETH: Objection; form.

 205 24 BY THE WITNESS:

 205 25 A. I -- I don't recall, but I probably

Re: [205:22-205:25]

Def Obj Argumentative (611, 403); 

foundation (602)

SUSTAINED through 206:1

205:26 - 206:8 Ronald Kieper 12/19/2019

 206 1 observed that, that's why I would write that, yes.

 206 2 BY MR. BUCHANAN:

 206 3 Q. Okay. And then it continues: "When the

 206 4 inward pressure to the UltraFit Plug was released, the

 206 5 Combat Arms flanges tended to return to their original

 206 6 shape."

 206 7 That was an observation you had when you

 206 8 were working with this product in people, sir?

206:11 - 206:13 Ronald Kieper 12/19/2019

 206 11 A. I probably saw it and that's why I wrote

 206 12 it down. I don't recall specifically.

 206 13 BY MR. BUCHANAN:

206:14 - 206:18 Ronald Kieper 12/19/2019

 206 14 Q. Well, you certainly memorialized that

 206 15 observation in a memo that you sent to your boss,

 206 16 true, sir?

 206 17 A. I wrote down what I observed in this memo

 206 18 and gave it to my boss.

Re: [206:14-206:18]

Def Obj cumulative (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 51 of 128
Ronald Kieper 12/19/2019 40

207:2 - 207:4 Ronald Kieper 12/19/2019

 207 2 Q. You also characterized what could happen

 207 3 as a result of inserting the plug without folding back

 207 4 the flanges on the opposing side, right?

207:7 - 207:8 Ronald Kieper 12/19/2019

 207 7 A. This could happen in some -- in some

 207 8 cases.

207:10 - 207:19 Ronald Kieper 12/19/2019

 207 10 Q. What you said was that this third flan --

 207 11 flange pressing against the user's ear could loosen

 207 12 the plug.

 207 13 Didn't you write that, sir?

 207 14 A. Let's see.

 207 15 "The third flange could press against the

 207 16 subject's ear canal opening and fold up. When inward

 207 17 pressure on the plug was released, the flanges tended

 207 18 to return to their original shape and this could

 207 19 loosen the plugs," yes.

207:20 - 207:23 Ronald Kieper 12/19/2019

 207 20 Q. Okay. And that's not a good thing, right?

 207 21 MS. ELIZABETH: Objection; form.

 207 22 BY THE WITNESS:

 207 23 A. You want the plug to be in securely, yes.

Re: [207:20-207:23]

Def Obj vague; argumentative (611, 

403)

OVERRULED

207:24 - 208:4 Ronald Kieper 12/19/2019

 207 24 BY MR. BUCHANAN:

 207 25 Q. Right, because you want to provide

 208 1 protection with a hearing protection device, right?

 208 2 A. My goal was to obtain a best fit and get

 208 3 the most protection that the person could get with

 208 4 that plug.

208:5 - 208:11 Ronald Kieper 12/19/2019

 208 5 Q. And what you found, sir, is that if you

 208 6 didn't flip back the flanges, the plug or the opposing

 208 7 flanges would press against the ear and loosen the

 208 8 plug, right?

 208 9 MS. ELIZABETH: Objection; form.

 208 10 BY THE WITNESS:

 208 11 A. In some cases that happened.

Re: [208:5-208:11]

Def Obj argumentative; misstates (611, 

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 52 of 128
Ronald Kieper 12/19/2019 41

208:12 - 208:17 Ronald Kieper 12/19/2019

 208 12 BY MR. BUCHANAN:

 208 13 Q. You don't have any recollection of your

 208 14 results apart from your memos, right, sir?

 208 15 A. No, that's correct.

 208 16 Q. And what you wrote is that this could

 208 17 happen imperceptibly to the test subject, right?

208:19 - 208:20 Ronald Kieper 12/19/2019

 208 19 BY THE WITNESS:

 208 20 A. Yes, that's what I wrote.

210:12 - 210:25 Ronald Kieper 12/19/2019

 210 12 Q. Okay. And the observation you noted in

 210 13 your memo at the time, and before, frankly, this

 210 14 became a bit of a situation for the company, is that

 210 15 this issue with the opposing flanges pressing on the

 210 16 ears could cause the plugs to loosen in an

 210 17 imperceptible way to the subjects, right, sir?

 210 18 A. That's what is written, yes.

 210 19 Q. Okay. And you don't disagree with that,

 210 20 do you, sir?

 210 21 MS. ELIZABETH: Objection; form.

 210 22 BY THE WITNESS:

 210 23 A. That it sometimes happened and it was

 210 24 imperceptible to the subjects, no, I don't disagree

 210 25 with that.

Re: [210:12-210:25]

Def Obj asked; argumentative (611, 

403), cumulative (403)

SUSTAINED

210:26 - 211:1 Ronald Kieper 12/19/2019

 211 1 BY MR. BUCHANAN:

211:2 - 211:8 Ronald Kieper 12/19/2019

 211 2 Q. People were unaware that hearing

 211 3 protection that they thought was seated was not

 211 4 seated, correct?

 211 5 MS. ELIZABETH: Objection; form, foundation.

 211 6 BY THE WITNESS:

 211 7 A. They were not aware that the plug had

 211 8 loosened.

Re: [211:2-211:8]

Def Obj foundation (602); vague (611, 

403)

OVERRULED

211:25 - 212:2 Ronald Kieper 12/19/2019

 211 25 Q. And there were two ends to the Combat

 212 1 Arms, right, there was a yellow end and a green end?

 212 2 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 53 of 128
Ronald Kieper 12/19/2019 42

212:3 - 212:9 Ronald Kieper 12/19/2019

 212 3 Q. This situation about the opposing flange

 212 4 pressing against the ear and imperceptibly loosening

 212 5 applies to both ends, right?

 212 6 MS. ELIZABETH: Objection; form, foundation.

 212 7 BY THE WITNESS:

 212 8 A. I don't know. This -- this memo is

 212 9 talking about the testing of the green end.

Re: [212:3-212:9]

Def Obj foundation (602); misstates 

(611, 403)

OVERRULED

212:10 - 212:14 Ronald Kieper 12/19/2019

 212 10 BY MR. BUCHANAN:

 212 11 Q. Oh, I understand that's what it's talking

 212 12 about, but the designs are mirror images of one

 212 13 another, right, in terms of the flanges, correct?

 212 14 A. Yes.

213:7 - 213:15 Ronald Kieper 12/19/2019

 213 7 Q. Can you think of any reason why it

 213 8 wouldn't?

 213 9 MS. ELIZABETH: Objection.

 213 10 BY MR. BUCHANAN:

 213 11 Q. The flanges are the same?

 213 12 MS. ELIZABETH: Objection; form.

 213 13 BY THE WITNESS:

 213 14 A. No, I don't know.

 213 15 BY MR. BUCHANAN:

Re: [213:7-213:15]

Def Obj 701; foundation (602); asked 

(611, 403)

OVERRULED

213:16 - 213:21 Ronald Kieper 12/19/2019

 213 16 Q. You can't think of any reason why the

 213 17 problem wouldn't exist with both ends of the plug,

 213 18 right, sir?

 213 19 MS. ELIZABETH: Objection; form.

 213 20 BY THE WITNESS:

 213 21 A. It could -- it could be a problem, yes.

Re: [213:16-213:21]

Def Obj argumentative, asked (611, 

403); foundation (602)

OVERRULED

214:6 - 214:7 Ronald Kieper 12/19/2019

 214 6 A. I don't recall seeing a problem when I was

 214 7 fitting the yellow end.

Re: [214:6-214:7]

Pltf Obj beyond the scope of 

clarification counter and is non 

responsive to the question

OVERRULED

214:9 - 214:11 Ronald Kieper 12/19/2019

 214 9 Q. Well, I'm wondering, sir, you got a 0 NRR

 214 10 on the yellow end, right?

 214 11 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 54 of 128
Ronald Kieper 12/19/2019 43

214:12 - 214:16 Ronald Kieper 12/19/2019

 214 12 Q. Your boss was happy with that one, wasn't

 214 13 he?

 214 14 MS. ELIZABETH: Objection; foundation, form.

 214 15 BY THE WITNESS:

 214 16 A. I don't know.

Re: [214:12-214:16]

Def Obj foundation (602); 

argumentative (611, 403)

SUSTAINED

219:25 - 220:6 Ronald Kieper 12/19/2019

 219 25 Q. Okay. You know you had a situation, sir,

 220 1 when this memo is put together in May of 2000 talking

 220 2 about imperceptible loosening with your Combat Arms

 220 3 because you had all already been selling it, right?

 220 4 MS. ELIZABETH: Objection; form, foundation.

 220 5 BY THE WITNESS:

 220 6 A. I don't know that it was being sold.

Re: [219:25-220:6]

Def Obj asked; misstates; 

argumentative (611, 403); foundation 

(602)

SUSTAINED

220:7 - 220:12 Ronald Kieper 12/19/2019

 220 7 BY MR. BUCHANAN:

 220 8 Q. Well, didn't you see the e-mail from

 220 9 Mr. Berger your boss? We looked at it this morning.

 220 10 Do you remember that?

 220 11 A. I looked at that -- yes, you showed me

 220 12 that memo this morning.

EXCLUDED because objections to 

[214:12-220:6] were sustained.

220:13 - 220:17 Ronald Kieper 12/19/2019

 220 13 Q. Do you think he was lying about it being

 220 14 sold at that point in time?

 220 15 MS. ELIZABETH: Objection; form.

 220 16 BY THE WITNESS:

 220 17 A. I don't know.

Re: [220:13-220:17]

Def Obj argumentative (611, 403); 

foundation (602)

SUSTAINED

220:18 - 220:18 Ronald Kieper 12/19/2019

 220 18 BY MR. BUCHANAN:

220:18 - 220:18 Ronald Kieper 12/19/2019

 220 18 BY MR. BUCHANAN:

220:19 - 220:25 Ronald Kieper 12/19/2019

 220 19 Q. You didn't have any awareness, sir, that

 220 20 this product was being sold and used with service

 220 21 members at this point in time with no testing having

 220 22 been done?

 220 23 MS. ELIZABETH: Objection; form, foundation.

 220 24 BY THE WITNESS:

 220 25 A. No, I wasn't aware of that.

Re: [220:19-220:25]

Def Obj asked; argumentative (611, 

403); foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 55 of 128
Ronald Kieper 12/19/2019 44

220:26 - 221:5 Ronald Kieper 12/19/2019

 221 1 BY MR. BUCHANAN:

 221 2 Q. Okay. Did your boss express to you that

 221 3 you clearly had a problem with this product?

 221 4 A. I don't recall him -- I don't recall any

 221 5 conversations about this product.

221:6 - 221:11 Ronald Kieper 12/19/2019

 221 6 Q. There was a problem with the product. Did

 221 7 you know it was perceived that way by your boss?

 221 8 MS. ELIZABETH: Objection; form, foundation.

 221 9 BY THE WITNESS:

 221 10 A. No, I didn't know that was what his

 221 11 thinking was.

Re: [221:6-221:11]

Def Obj argumentative; misstates (611, 

403); foundation (602)

SUSTAINED

221:13 - 221:17 Ronald Kieper 12/19/2019

 221 13 (WHEREUPON, a certain document was

 221 14 marked Ron Kieper Deposition Exhibit

 221 15 No. 15, for identification, as of

 221 16 12/19/2019.)

 221 17 BY MR. BUCHANAN:

221:18 - 222:1 Ronald Kieper 12/19/2019

 221 18 Q. I am passing you, sir, Exhibit 15 to your

 221 19 deposition.

 221 20 Exhibit 15, sir, is an e-mail from

 221 21 Mr. Berger. That's your boss at the time, right?

 221 22 A. Yes.

 221 23 Q. To Brian Myers.

 221 24 Who is he, sir?

 221 25 A. Another employee of 3M. He may have been

 222 1 Elliott's boss at that time. I don't recall.

Re: [221:18-222:1]

Def Obj relevance (401, 402); Prejudice 

(403)

OVERRULED

222:2 - 222:8 Ronald Kieper 12/19/2019

 222 2 Q. Okay. And the lab was actually reporting

 222 3 in to Mr. Myers at this point in time, isn't that

 222 4 true?

 222 5 MS. ELIZABETH: Objection; foundation.

 222 6 BY THE WITNESS:

 222 7 A. If he was Elliott's boss, that -- that

 222 8 could be the case, yes.

Re: [222:2-222:8]

Def Obj vague (611, 403); foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 56 of 128
Ronald Kieper 12/19/2019 45

222:10 - 222:14 Ronald Kieper 12/19/2019

 222 10 Q. And he was a business guy, right?

 222 11 MS. ELIZABETH: Objection; foundation.

 222 12 BY THE WITNESS:

 222 13 A. I'm -- I don't know what his background or

 222 14 what his specific job was.

Re: [222:10-222:14]

Def Obj vague (611, 403); foundation 

(602)

OVERRULED

222:15 - 222:15 Ronald Kieper 12/19/2019

 222 15 BY MR. BUCHANAN:

222:16 - 223:1 Ronald Kieper 12/19/2019

 222 16 Q. The memo from -- or the e-mail from

 222 17 Mr. Berger to Mr. Myers dated the day after the memo

 222 18 we just looked at, the one you wrote, do you see that?

 222 19 A. Yes, I see that.

 222 20 Q. Okay. It says: "Here are data on the

 222 21 UltraFit end of the Combat Arms. Note the original

 222 22 study was stopped with eight subjects. The second

 222 23 study was with the folded-back flanges on the end

 222 24 sticking out of the ear."

 222 25 Did I read that correctly?

 223 1 A. Yes, you did.

Re: [222:16-223:1]

Def Obj relevance (401, 402); Prejudice 

(403)

OVERRULED

223:20 - 223:21 Ronald Kieper 12/19/2019

 223 20 Q. You hadn't seen this before today?

 223 21 A. I don't believe so.

223:22 - 224:6 Ronald Kieper 12/19/2019

 223 22 Q. Okay. It says: "The second" -- "The

 223 23 second study was with the folded-back flanges on the

 223 24 end sticking out of the ear."

 223 25 Do you see that?

 224 1 A. Yes.

 224 2 Q. And then there is a question to Mr. Myers

 224 3 from Mr. Berger.

 224 4 "Should I share this with Ohlin?"

 224 5 Do you see that?

 224 6 A. Yes.

224:7 - 224:14 Ronald Kieper 12/19/2019

 224 7 Q. And then it continues.

 224 8 "It looks like the existing product has

 224 9 problems." Let's pause there.

 224 10 Did Mr. Berger ever share with you his

Re: [224:7-224:14]

Def Obj prejudice (403); foundation 

(602); vague; misstates (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 57 of 128
Ronald Kieper 12/19/2019 46

 224 11 view that the existing product had problems?

 224 12 MS. ELIZABETH: Objection; asked and answered.

 224 13 BY THE WITNESS:

 224 14 A. Not that I recall.

224:16 - 224:22 Ronald Kieper 12/19/2019

 224 16 Q. Did he ever share with you at this point

 224 17 in time that you were already selling this version of

 224 18 the product?

 224 19 MS. ELIZABETH: Objection; form, asked and

 224 20 answered.

 224 21 BY THE WITNESS:

 224 22 A. No.

Re: [224:16-224:22]

Def Obj vague; misstates; asked (611, 

403); foundation (602)

OVERRULED

225:4 - 225:10 Ronald Kieper 12/19/2019

 225 4 Q. Did you direct anybody, sir, that the

 225 5 Combat Arms when worn should have the flanges folded

 225 6 back in the same manner that you tested them?

 225 7 MS. ELIZABETH: Objection; form.

 225 8 BY THE WITNESS:

 225 9 A. I didn't have any input on the

 225 10 instructions or...

Re: [225:4-225:10]

Def Obj misstates (611, 403); MIL No. 

18

OVERRULED

226:4 - 226:13 Ronald Kieper 12/19/2019

 226 4 (WHEREUPON, a certain document was

 226 5 marked Ron Kieper Deposition Exhibit

 226 6 No. 16, for identification, as of

 226 7 12/19/2019.)

 226 8 BY MR. BUCHANAN:

 226 9 Q. Before you now, sir, is Exhibit --

 226 10 Exhibit 16 to your examination. It's a technical

 226 11 report. It's got a number in the middle. Do you see

 226 12 that? E-A-R 00-12/HP. Do you see that?

 226 13 A. Yes.

226:19 - 227:12 Ronald Kieper 12/19/2019

 226 19 Q. Okay. And you are the lead author on

 226 20 this?

 226 21 A. Yes.

 226 22 Q. Okay. For the record, Exhibit 16 is a

 226 23 report entitled: "How Folding the Flanges Back

 226 24 Affects REAT Results of the UltraFit Earplug End of

 226 25 the Combat Arms Plug."

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 58 of 128
Ronald Kieper 12/19/2019 47

 227 1 Do you see that, sir?

 227 2 A. Yes.

 227 3 Q. It is dated July 10, 2000?

 227 4 A. Yes.

 227 5 Q. And we are looking at Version 1.2, right?

 227 6 A. That's -- yes, that's what it states.

 227 7 Q. And was that your practice, sir, when you

 227 8 were doing technical report -- reports to start with a

 227 9 Version 1 and then make changes and make a Version 1.1

 227 10 and then you'd make changes and go to a Version 1.2,

 227 11 for example?

 227 12 A. Yes.

227:13 - 227:19 Ronald Kieper 12/19/2019

 227 13 Q. Okay. And so seeing that numbering there,

 227 14 I take it your testimony would be there was a

 227 15 Version 1, right?

 227 16 MS. ELIZABETH: Objection; foundation.

 227 17 BY THE WITNESS:

 227 18 A. There was probably a Version 1.0 and a

 227 19 Version 1.1.

Re: [227:13-227:19]

Def Obj foundation (602)

OVERRULED

227:21 - 227:22 Ronald Kieper 12/19/2019

 227 21 Q. Okay. And where are those?

 227 22 A. I don't know.

228:15 - 228:20 Ronald Kieper 12/19/2019

 228 15 Q. I take it, sir, that before you came in to

 228 16 talk to us today on the record with our jury, you had

 228 17 a chance to review this?

 228 18 A. Yes, I've looked at this.

 228 19 Q. As part of your preparation for today?

 228 20 A. Yes.

228:21 - 229:3 Ronald Kieper 12/19/2019

 228 21 Q. Okay. Let's look at this.

 228 22 And this is kind of a beefed up version of

 228 23 that memo that we looked at from May of 2000 that you

 228 24 wrote yourself to Mr. Berger, is that right?

 228 25 MS. ELIZABETH: Objection; form.

 229 1 BY THE WITNESS:

 229 2 A. There is -- there is more to it than just

 229 3 the memo, yes.

Re: [228:21-229:3]

Def Obj argumentative; vague (611, 

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 59 of 128
Ronald Kieper 12/19/2019 48

229:4 - 229:24 Ronald Kieper 12/19/2019

 229 4 BY MR. BUCHANAN:

 229 5 Q. Okay. And I'd like to -- this -- I'd like

 229 6 to start with the test procedure, okay?

 229 7 A. Okay.

 229 8 Q. Under the heading Test Procedure, you are

 229 9 talking about these two tests 213015 and 213017,

 229 10 correct, sir?

 229 11 A. Yes.

 229 12 Q. Okay. It says: "Both tests followed the

 229 13 S3.19-1974, Experimenter-Fit, protocol."

 229 14 Do you see that?

 229 15 A. Yes.

 229 16 Q. And you described what you did.

 229 17 They were tested three times each on the

 229 18 subjects from your lab test panel, right?

 229 19 A. Yes.

 229 20 Q. Okay. So that means these are those folks

 229 21 that you have already prescreened and qualified, not

 229 22 some sample from the general population, right?

 229 23 A. Yes, these were test subjects on our test

 229 24 panel.

229:25 - 230:4 Ronald Kieper 12/19/2019

 229 25 Q. Okay. Some of whom were employees, right?

 230 1 A. Yes.

 230 2 Q. Some of whom were relatives of employees,

 230 3 right?

 230 4 A. Yes.

Re: [229:25-230:4]

Def Obj relevance (401, 402)

OVERRULED

232:12 - 232:19 Ronald Kieper 12/19/2019

 232 12 Q. "Because the stem of the green, solid end

 232 13 of the plug is so short, it was difficult for the

 232 14 experimenter to insert the plug deeply into some

 232 15 subjects' ear canals, especially those subjects with

 232 16 medium and larger canals," right?

 232 17 A. That's what it says, yes.

 232 18 Q. Okay. And that was true, of course,

 232 19 right?

232:22 - 233:1 Ronald Kieper 12/19/2019

 232 22 A. That's -- that's what I wrote.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 60 of 128
Ronald Kieper 12/19/2019 49

 232 23 BY MR. BUCHANAN:

 232 24 Q. And you wrote it because it was --

 232 25 A. So I -- at that time I believed that, yes.

 233 1 Q. And you still believe it, don't you?

233:4 - 233:6 Ronald Kieper 12/19/2019

 233 4 A. I believe that it -- it was difficult for

 233 5 me to insert the plug deeply into some subjects' ear

 233 6 canals.

233:18 - 234:17 Ronald Kieper 12/19/2019

 233 18 Q. And then it continues.

 233 19 "Additionally, the geometry of the ear

 233 20 canal opening sometimes prevented the deep plug

 233 21 insertion required for maximum attenuation values,"

 233 22 right?

 233 23 A. That's -- that's -- you read that right.

 233 24 Q. And then you continue to describe the

 233 25 observation you had in your memo from a few months

 234 1 earlier. You state:

 234 2 "When the solid plug was fitted during the

 234 3 first test, the basal edge of the third flange of the

 234 4 yellow level-dependent plug sometimes pressed against

 234 5 the subject's ear canal opening and folded up."

 234 6 Did I read that correctly?

 234 7 A. Yes, you did.

 234 8 Q. "When the inward pressure on the plug was

 234 9 released, the yellow plug's flanges tended to return

 234 10 to their original shape and this sometimes loosened

 234 11 the plug."

 234 12 Do you see that?

 234 13 A. I see that.

 234 14 Q. Okay. And this loosening, sir, was often

 234 15 imperceptible to the subject, isn't that true?

 234 16 A. That's what it says here.

 234 17 Q. And that was true?

234:20 - 235:7 Ronald Kieper 12/19/2019

 234 20 A. That's what I believed, yes.

 234 21 BY MR. BUCHANAN:

 234 22 Q. That's what you wrote contemporaneous --

 234 23 A. That's what I wrote.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 61 of 128
Ronald Kieper 12/19/2019 50

 234 24 Q. -- with the study?

 234 25 A. That's correct.

 235 1 Q. When you ran test 213017, as you

 235 2 documented in this report, "the yellow flanges of a

 235 3 level-dependent end of the plug were folded back prior

 235 4 to the green, solid plug being inserted into the

 235 5 subjects' ears."

 235 6 Do you see that, sir?

 235 7 A. Yes.

235:8 - 235:13 Ronald Kieper 12/19/2019

 235 8 Q. And that's how you ran test 213017, right,

 235 9 sir?

 235 10 MS. ELIZABETH: Objection; form.

 235 11 BY THE WITNESS:

 235 12 A. I don't recall. I hold -- I wrote that

 235 13 here, so that's -- that's what I wrote at that time.

Re: [235:8-235:13]

Def Obj foundation (602)

OVERRULED

235:14 - 235:14 Ronald Kieper 12/19/2019

 235 14 BY MR. BUCHANAN:

235:15 - 235:19 Ronald Kieper 12/19/2019

 235 15 Q. You don't doubt that's what you did,

 235 16 right?

 235 17 MS. ELIZABETH: Objection; form.

 235 18 BY THE WITNESS:

 235 19 A. No, I don't doubt that.

Re: [235:15-235:19]

Def Obj argumentative (611, 403); 

cumulative (403)

OVERRULED

235:25 - 236:8 Ronald Kieper 12/19/2019

 235 25 "The folded-back flanges and the hard

 236 1 plastic stem provided a long, stiff quasi-stem for the

 236 2 experimenter to grasp and allowed for a deeper and

 236 3 more consistent fit of the solid plugs for test

 236 4 213017."

 236 5 Do you see that, sir?

 236 6 A. I see that.

 236 7 Q. And that's also a true statement when you

 236 8 wrote it, right, sir?

236:10 - 236:11 Ronald Kieper 12/19/2019

 236 10 BY THE WITNESS:

 236 11 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 62 of 128
Ronald Kieper 12/19/2019 51

236:13 - 236:17 Ronald Kieper 12/19/2019

 236 13 Q. True then, true now, right?

 236 14 MS. ELIZABETH: Objection; form.

 236 15 BY THE WITNESS:

 236 16 A. I don't know. I haven't done any

 236 17 experimenting in the last several years.

Re: [236:13-236:17]

Pltf Obj it is cumulative and therefore 

not clarification counter

SUSTAINED

238:9 - 238:11 Ronald Kieper 12/19/2019

 238 9 Q. Before the break, sir, we were looking at

 238 10 this e-mail which followed the memo you sent to

 238 11 Mr. Berger by a day.

238:12 - 239:22 Ronald Kieper 12/19/2019

 238 12 Do you recall us discussing Exhibit 15?

 238 13 A. Yes.

 238 14 Q. Okay. This is the one talking about the

 238 15 original study being stopped with eight subjects.

 238 16 Remind us, sir, what was the NRR when the

 238 17 subject was stopped -- that was stopped?

 238 18 MS. ELIZABETH: Objection; form.

 238 19 BY THE WITNESS:

 238 20 A. The eight subject NRR was 11.

 238 21 BY MR. BUCHANAN:

 238 22 Q. Okay. And then the second study

 238 23 referenced here was the one with the folded-back

 238 24 flanges on the end sticking out of the ear, that's

 238 25 what's written, right?

 239 1 A. Yes, that's what's written.

 239 2 Q. And from our discussion, sir, you know

 239 3 that to be study 213017, correct?

 239 4 A. Yes.

 239 5 Q. The original study that was stopped with

 239 6 the eight subjects when there was an NRR of 11, that

 239 7 was study 213015, correct?

 239 8 MS. ELIZABETH: Objection; form.

 239 9 BY THE WITNESS:

 239 10 A. Yes.

 239 11 BY MR. BUCHANAN:

 239 12 Q. All right. And then we saw that portion

 239 13 of the e-mail at the bottom that said: "It looks like

 239 14 the existing product has problems."

Re: [238:12-239:22]

Def Obj cumulative (403); asked (611, 

403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 63 of 128
Ronald Kieper 12/19/2019 52

 239 15 Do you see that?

 239 16 A. I see that.

 239 17 Q. But there were, in fact, bigger problems

 239 18 at this point in time with regard to this product and

 239 19 this issue, right, sir?

 239 20 MS. ELIZABETH: Objection; form.

 239 21 BY THE WITNESS:

 239 22 A. I don't know to what you are referring.

238:14 - 238:20 Ronald Kieper 12/19/2019

 238 14 Q. Okay. This is the one talking about the

 238 15 original study being stopped with eight subjects.

 238 16 Remind us, sir, what was the NRR when the

 238 17 subject was stopped -- that was stopped?

 238 18 MS. ELIZABETH: Objection; form.

 238 19 BY THE WITNESS:

 238 20 A. The eight subject NRR was 11.

Re: [238:14-238:20]

Def Obj misstates (611, 403)

SUSTAINED

239:5 - 239:10 Ronald Kieper 12/19/2019

 239 5 Q. The original study that was stopped with

 239 6 the eight subjects when there was an NRR of 11, that

 239 7 was study 213015, correct?

 239 8 MS. ELIZABETH: Objection; form.

 239 9 BY THE WITNESS:

 239 10 A. Yes.

Re: [239:5-239:10]

Def Obj asked; misstates (611, 403)

SUSTAINED

239:17 - 239:22 Ronald Kieper 12/19/2019

 239 17 Q. But there were, in fact, bigger problems

 239 18 at this point in time with regard to this product and

 239 19 this issue, right, sir?

 239 20 MS. ELIZABETH: Objection; form.

 239 21 BY THE WITNESS:

 239 22 A. I don't know to what you are referring.

Re: [239:17-239:22]

Def Obj vague; asked (611, 403); 

foundation (602)

SUSTAINED

240:3 - 240:8 Ronald Kieper 12/19/2019

 240 3 Q. Mr. Myers was the project manager for the

 240 4 Combat Arms, wasn't he, sir?

 240 5 MS. ELIZABETH: Objection; form.

 240 6 BY THE WITNESS:

 240 7 A. I don't -- I don't know that. I don't

 240 8 recall that.

Re: [240:3-240:8]

Def Obj foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 64 of 128
Ronald Kieper 12/19/2019 53

240:21 - 241:13 Ronald Kieper 12/19/2019

 240 21 Q. Do you have Exhibit 17 before you, sir?

 240 22 A. Yes.

 240 23 Q. All right. It is an e-mail from a Delana

 240 24 Kinnaman to a Brian Myers.

 240 25 Do you see that?

 241 1 A. Yes.

 241 2 Q. That's actually dated Friday, November 19,

 241 3 1999, right?

 241 4 A. Yes.

 241 5 Q. Remember that e-mail we were looking at

 241 6 earlier today between Mr. Berger and I think it was

 241 7 internally addressed to Armand? Remember the one from

 241 8 November 1999? Let's pull it up. You can give me the

 241 9 stack.

 241 10 A. Sure.

 241 11 Q. I'll identify it for you to make life

 241 12 easy.

 241 13 A. Okay. Sure.

Re: [240:21-241:13]

Def Obj relevance (401, 402); 

foundation (602)

SUSTAINED

241:22 - 243:19 Ronald Kieper 12/19/2019

 241 22 Q. We've got Exhibit 12 on the left on the

 241 23 screen and we've got Exhibit 17, I think we are

 241 24 putting on the right.

 241 25 They are both dated the same day, right?

 242 1 A. Yes.

 242 2 Q. And so this Exhibit 17 -- or Exhibit 12,

 242 3 excuse me, on the left, that's that e-mail we were

 242 4 talking about, We are already selling the product, we

 242 5 don't have any REAT data on the product, we are going

 242 6 to have to start doing some testing.

 242 7 Do you remember us looking at Exhibit 12,

 242 8 sir?

 242 9 MS. ELIZABETH: Objection; form.

 242 10 BY THE WITNESS:

 242 11 A. I remember us looking at this, yes.

 242 12 BY MR. BUCHANAN:

 242 13 Q. Okay. And so on this same day, Mr. Myers

 242 14 is getting updated project summary sheets and bubble

 242 15 charts and some business stuff.

Re: [241:22-243:19]

Def Obj relevance (401, 402); 

foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 65 of 128
Ronald Kieper 12/19/2019 54

 242 16 I take it you didn't ordinarily get

 242 17 financial planning and sales forecasts, did you?

 242 18 A. I did not.

 242 19 Q. Okay. Let's go to the project summary

 242 20 sheet for the Combat Arms. This should be .12.

 242 21 Do you see the heading Project Summary

 242 22 Sheet?

 242 23 A. Yes.

 242 24 Q. It says: "Project Name: E-A-R UltraFit

 242 25 'Combat Arms' Plug," right?

 243 1 A. Yes.

 243 2 Q. The product description and positioning:

 243 3 "Nonlinear plug to be sold to the military and as a

 243 4 shooter's plug."

 243 5 Do you see that, sir?

 243 6 A. Yes.

 243 7 Q. Okay. It talks about a probability of

 243 8 success of 90 percent.

 243 9 Do you see that?

 243 10 A. Yes.

 243 11 Q. And you see that due date of 7/99, middle,

 243 12 the due date?

 243 13 A. I see that, yes.

 243 14 Q. The product was already being sold in the

 243 15 summer of 1999, isn't that true, sir?

 243 16 MS. ELIZABETH: Objection; foundation, asked and

 243 17 answered.

 243 18 BY THE WITNESS:

 243 19 A. I don't know that.

243:1 - 244:24 Ronald Kieper 12/19/2019

 243 1 A. Yes.

 243 2 Q. The product description and positioning:

 243 3 "Nonlinear plug to be sold to the military and as a

 243 4 shooter's plug."

 243 5 Do you see that, sir?

 243 6 A. Yes.

 243 7 Q. Okay. It talks about a probability of

 243 8 success of 90 percent.

 243 9 Do you see that?

Re: [243:1-244:24]

Def Obj asked (611, 403); foundation 

(602)

SUSTAINED

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Ronald Kieper 12/19/2019 55

 243 10 A. Yes.

 243 11 Q. And you see that due date of 7/99, middle,

 243 12 the due date?

 243 13 A. I see that, yes.

 243 14 Q. The product was already being sold in the

 243 15 summer of 1999, isn't that true, sir?

 243 16 MS. ELIZABETH: Objection; foundation, asked and

 243 17 answered.

 243 18 BY THE WITNESS:

 243 19 A. I don't know that.

 243 20 BY MR. BUCHANAN:

 243 21 Q. Okay. Who is the project manager for the

 243 22 product, sir?

 243 23 A. I don't know. I don't see that it says

 243 24 that on here.

 243 25 Q. I'll direct your attention right to the

 244 1 right of the due date, sir. Do you see project

 244 2 manager?

 244 3 A. Oh, there we are, yes. Brian Myers.

 244 4 Q. Brian Myers was the project manager?

 244 5 MS. ELIZABETH: Objection; form.

 244 6 BY MR. BUCHANAN:

 244 7 Q. According to this, sir?

 244 8 A. Yes, that's -- it says Brian Myers.

 244 9 Q. And we were looking at Exhibit 15 before.

 244 10 Can we get Exhibit 15 now side by side with this.

 244 11 Who is the person, sir, that Elliott

 244 12 Berger is e-mailing on May 12th, 2000, about the

 244 13 problem with the Combat Arms?

 244 14 A. This e-mail was sent to Brian Myers.

 244 15 Q. What we see, sir, on Exhibit 17, this

 244 16 product that has problems, you've already forecasted

 244 17 close to $5 million in profit for, isn't that right?

 244 18 MS. ELIZABETH: Objection; form.

 244 19 BY THE WITNESS:

 244 20 A. No, I didn't -- I didn't do any of this.

 244 21 BY MR. BUCHANAN:

 244 22 Q. You didn't -- you weren't aware of that?

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 67 of 128
Ronald Kieper 12/19/2019 56

 244 23 A. No.

 244 24 MS. ELIZABETH: Objection; form.

243:14 - 243:19 Ronald Kieper 12/19/2019

 243 14 Q. The product was already being sold in the

 243 15 summer of 1999, isn't that true, sir?

 243 16 MS. ELIZABETH: Objection; foundation, asked and

 243 17 answered.

 243 18 BY THE WITNESS:

 243 19 A. I don't know that.

Re: [243:14-243:19]

Def Obj asked; misstates (611, 403); 

foundation (602)

SUSTAINED

244:4 - 244:8 Ronald Kieper 12/19/2019

 244 4 Q. Brian Myers was the project manager?

 244 5 MS. ELIZABETH: Objection; form.

 244 6 BY MR. BUCHANAN:

 244 7 Q. According to this, sir?

 244 8 A. Yes, that's -- it says Brian Myers.

Re: [244:4-244:8]

Def Obj foundation (602)

SUSTAINED

244:15 - 244:20 Ronald Kieper 12/19/2019

 244 15 Q. What we see, sir, on Exhibit 17, this

 244 16 product that has problems, you've already forecasted

 244 17 close to $5 million in profit for, isn't that right?

 244 18 MS. ELIZABETH: Objection; form.

 244 19 BY THE WITNESS:

 244 20 A. No, I didn't -- I didn't do any of this.

Re: [244:15-244:20]

Def Obj foundation (602); 3M MIL No. 

14

SUSTAINED

244:22 - 244:24 Ronald Kieper 12/19/2019

 244 22 Q. You didn't -- you weren't aware of that?

 244 23 A. No.

 244 24 MS. ELIZABETH: Objection; form.

Re: [244:22-244:24]

Def Obj foundation (602)

SUSTAINED

245:1 - 245:9 Ronald Kieper 12/19/2019

 245 1 Q. So when your results came out, sir, and

 245 2 you sent your memo to Mr. Berger in May of 2000, is

 245 3 your testimony nobody came to you and said, Well, this

 245 4 is a bit of a problem. We've got -- we are expecting

 245 5 to sell a lot of these?

 245 6 MS. ELIZABETH: Objection; form.

 245 7 BY MR. BUCHANAN:

 245 8 Q. Did anybody share that with you?

 245 9 A. No.

Re: [245:1-245:9]

Def Obj argumentative; asked; vague 

(611, 403)

OVERRULED

245:22 - 246:2 Ronald Kieper 12/19/2019

 245 22 Q. 4.8 million in profit first three years,

 245 23 that's what was on the board, right?

Re: [245:22-246:2]

Def Obj foundation (602); asked (611, 

403); 3M MIL No. 14

SUSTAINED

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Ronald Kieper 12/19/2019 57

 245 24 MS. ELIZABETH: Objection; form.

 245 25 BY THE WITNESS:

 246 1 A. That's what's in this e-mail or this

 246 2 report.

258:18 - 258:23 Ronald Kieper 12/19/2019

 258 18 Q. Do you know there is no evidence that your

 258 19 research reports concerning folding back the flanges

 258 20 was shared with Dr. Ohlin?

 258 21 MS. ELIZABETH: Objection; form.

 258 22 BY THE WITNESS:

 258 23 A. I'm sorry. With whom?

Re: [258:18-258:23]

Def Obj argumentative; misstates (611, 

403); foundation (602)

SUSTAINED

258:24 - 259:1 Ronald Kieper 12/19/2019

 258 24 BY MR. BUCHANAN:

 258 25 Q. Do you know who Dr. Ohlin is?

 259 1 A. No.

259:2 - 259:9 Ronald Kieper 12/19/2019

 259 2 Q. In that document we looked at, sir, there

 259 3 was a question: "Should we tell owe Ohlin?" between

 259 4 Mr. Berger and Mr. Myers.

 259 5 Did you see that?

 259 6 MS. ELIZABETH: Objection; form.

 259 7 BY THE WITNESS:

 259 8 A. Yes, I remember doctor -- I didn't realize

 259 9 he was a doctor.

Re: [259:2-259:9]

Def Obj foundation (602); relevance 

(401, 402)

OVERRULED

259:10 - 259:12 Ronald Kieper 12/19/2019

 259 10 BY MR. BUCHANAN:

 259 11 Q. Were you ever instructed, sir, to share

 259 12 your report with Dr. Ohlin?

259:15 - 259:15 Ronald Kieper 12/19/2019

 259 15 A. Not that I recall.

271:14 - 271:25 Ronald Kieper 12/19/2019

 271 14 Q. I am passing you, sir, what we are marking

 271 15 as Exhibit 22.

 271 16 The truth is, sir, that 22 that you HAD

 271 17 been putting on the package was a bit of a problem,

 271 18 wasn't it, sir?

 271 19 MS. ELIZABETH: Objection; form, asked and

 271 20 answered.

 271 21 BY MR. BUCHANAN:

Re: [271:14-271:25]

Def Obj asked; misstates; 

argumentative (611, 403); foundation 

(602)

OVERRULED

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Ronald Kieper 12/19/2019 58

 271 22 Q. Did you know that, sir?

 271 23 MS. ELIZABETH: Same objections.

 271 24 BY THE WITNESS:

 271 25 A. No.

274:20 - 275:1 Ronald Kieper 12/19/2019

 274 20 Q. As I remember your testimony, sir, you had

 274 21 an NRR of 11 on study 015 at the point in time

 274 22 Mr. Berger told you to stop testing, right?

 274 23 MS. ELIZABETH: Objection; asked and answered.

 274 24 BY THE WITNESS:

 274 25 A. Yes, he asked me to stop testing after

 275 1 eight subjects.

Re: [274:20-275:1]

Def Obj misstates; asked; 

argumentative (611, 403); cumulative 

(403)

SUSTAINED

275:2 - 275:2 Ronald Kieper 12/19/2019

 275 2 BY MR. BUCHANAN:

275:3 - 275:9 Ronald Kieper 12/19/2019

 275 3 Q. And then you all flipped the flanges back,

 275 4 used that different technique we talked about in your

 275 5 documents from 2000, and when you retested you got a

 275 6 20 -- 22, right?

 275 7 MS. ELIZABETH: Objection; form.

 275 8 BY THE WITNESS:

 275 9 A. Yes, the 017 test result was 22.

Re: [275:3-275:9]

Def Obj asked; misstates (611, 403); 

cumulative (403)

SUSTAINED

275:10 - 275:10 Ronald Kieper 12/19/2019

 275 10 BY MR. BUCHANAN:

275:11 - 275:15 Ronald Kieper 12/19/2019

 275 11 Q. Okay. Twice as high?

 275 12 MS. ELIZABETH: Objection; form.

 275 13 BY MR. BUCHANAN:

 275 14 Q. Right?

 275 15 A. Twice as high as 11.

Re: [275:11-275:15]

Def Obj argumentative; misstates (611, 

403)

SUSTAINED

275:16 - 275:21 Ronald Kieper 12/19/2019

 275 16 Q. Conveying substantially more protection?

 275 17 MS. ELIZABETH: Objection; form.

 275 18 BY MR. BUCHANAN:

 275 19 Q. Right?

 275 20 A. We got higher results on the 17 tests,

 275 21 yes.

Re: [275:16-275:21]

Def Obj vague; asked; misstates (611, 

403)

SUSTAINED

275:24 - 275:24 Ronald Kieper 12/19/2019

 275 24 BY MR. BUCHANAN:

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Ronald Kieper 12/19/2019 59

275:25 - 276:6 Ronald Kieper 12/19/2019

 275 25 Q. You doubled it?

 276 1 A. The NRR --

 276 2 MS. ELIZABETH: Objection; form.

 276 3 BY THE WITNESS:

 276 4 A. The NRR was double for the ten subjects

 276 5 tested as compared to the eight subjects that were

 276 6 tested and got an 11.

Re: [275:25-276:6]

Def Obj asked; argumentative; 

misstates (611, 403)

SUSTAINED

276:8 - 276:12 Ronald Kieper 12/19/2019

 276 8 Q. And in 2015, sir, you all stopped selling

 276 9 it with that 22, right?

 276 10 MS. ELIZABETH: Objection; foundation.

 276 11 BY THE WITNESS:

 276 12 A. I don't know that.

Re: [276:8-276:12]

Def Obj foundation (602); 3M MIL No. 

16

OVERRULED

278:21 - 279:1 Ronald Kieper 12/19/2019

 278 21 Q. I understand you were just doing the tests

 278 22 the way Mr. Berger told you to, right?

 278 23 A. I was following the ANSI Standard and

 278 24 Elliott's directions, yes.

 278 25 Q. Elliott told you to fold the flanges back,

 279 1 right?

279:3 - 279:5 Ronald Kieper 12/19/2019

 279 3 BY THE WITNESS:

 279 4 A. I don't recall him specifically saying

 279 5 that.

279:15 - 279:17 Ronald Kieper 12/19/2019

 279 15 Q. Sir, you were also deposed in that other

 279 16 proceeding, right?

 279 17 A. Yes, 2015.

Re: [279:15-279:17]

Def Obj 3M MIL No. 6; relevance 

(401, 402)

OVERRULED

280:1 - 280:4 Ronald Kieper 12/19/2019

 280 1 Q. Sir, is that you I guess four or five

 280 2 years ago at the time of your deposition in that

 280 3 proceeding?

 280 4 A. Yes.

Re: [280:1-280:4]

Def Obj 3M MIL No. 6; relevance 

(401, 402)

OVERRULED

280:5 - 280:12 Ronald Kieper 12/19/2019

 280 5 Q. I guess four years ago there.

 280 6 Whose -- whose idea was it to roll the

 280 7 flange back and run 017 the way you did, sir? Was it

 280 8 Mr. Berger?

Re: [280:5-280:12]

Def Obj 3M MIL No. 6; asked; 

misstates (611, 403); foundation (602)

OVERRULED

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Ronald Kieper 12/19/2019 60

 280 9 MS. ELIZABETH: Objection; asked and answered.

 280 10 BY THE WITNESS:

 280 11 A. That would be my understanding, yes. I

 280 12 don't recall specifically.

280:11 - 281:6 Ronald Kieper 12/19/2019

 280 11 A. That would be my understanding, yes. I

 280 12 don't recall specifically.

 280 13 BY MR. BUCHANAN:

 280 14 Q. Okay. Let's see what you said then.

 280 15 MR. BUCHANAN: Can you play 50.

 280 16 (Video played, as follows:

 280 17 "Q. Whose idea was it to roll

 280 18 back the flange and do this? Was it

 280 19 Mr. Berger?

 280 20 "A. I don't know, you know --

 280 21 "Q. Who told you to do it?

 280 22 "A. Mr. Berger.

 280 23 "Q. Did you ask why?

 280 24 "A. I don't recall.")

 280 25 BY MR. BUCHANAN:

 281 1 Q. Okay. Sir, you don't take exception to

 281 2 your prior testimony that it was Mr. Berger who told

 281 3 you to do it, do you, sir?

 281 4 MS. ELIZABETH: Objection; form.

 281 5 BY THE WITNESS:

 281 6 A. No.

Re: [280:11-281:6]

Def Obj cumulative (403); asked (611, 

403)

OVERRULED

282:10 - 282:15 Ronald Kieper 12/19/2019

 282 10 Q. Overstating NRRs is a big deal, isn't it,

 282 11 sir?

 282 12 MS. ELIZABETH: Objection; form.

 282 13 BY THE WITNESS:

 282 14 A. Not putting the actual NRR on a package

 282 15 would be, yeah, that would be a problem.

Re: [282:10-282:15]

Def Obj argumentative; vague; 

misstates (611, 403); foundation (602)

OVERRULED

282:17 - 282:22 Ronald Kieper 12/19/2019

 282 17 Q. Yeah, and -- and not putting down an NRR

 282 18 that you can support would be a problem, right?

 282 19 MS. ELIZABETH: Objection; form.

 282 20 BY THE WITNESS:

Re: [282:17-282:22]

Def Obj 701; vague; misstates; 

argumentative (611, 403); foundation 

(602)

OVERRULED

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Ronald Kieper 12/19/2019 61

 282 21 A. I can see how that would be a problem,

 282 22 yes.

283:3 - 283:18 Ronald Kieper 12/19/2019

 283 3 Q. All right. I'm passing you over what we

 283 4 are marking as Exhibit 23 to your deposition, sir.

 283 5 This is a press release --

 283 6 MS. ELIZABETH: One second.

 283 7 Can I have the document, please?

 283 8 MR. BUCHANAN: Sorry about that.

 283 9 BY MR. BUCHANAN:

 283 10 Q. It is a press release, sir, from 1993 from

 283 11 the Department of Justice directed to I guess it was

 283 12 then Cabot Safety Corp.

 283 13 Was that the parent of Aearo many years

 283 14 ago, sir?

 283 15 MS. ELIZABETH: Objection; form.

 283 16 BY THE WITNESS:

 283 17 A. I believe that was just another name of

 283 18 E-A-R, Cabot Safety, Aearo, 3M.

Re: [283:3-283:18]

Def Obj 3M MIL No. 8; foundation 

(602)

SUSTAINED

283:19 - 283:19 Ronald Kieper 12/19/2019

 283 19 BY MR. BUCHANAN:

283:20 - 284:3 Ronald Kieper 12/19/2019

 283 20 Q. Okay. So here we are in 1993, sir, and we

 283 21 see this press release where your company -- under a

 283 22 different name then, but your company is going to pay

 283 23 a $900,000 civil penalty relating to alleged

 283 24 violations of the Noise Control Act.

 283 25 Do you see that, sir?

 284 1 MS. ELIZABETH: Objection; foundation.

 284 2 BY THE WITNESS:

 284 3 A. I see that.

Re: [283:20-284:3]

Def Obj foundation (602); 3M MIL No. 

8

SUSTAINED

284:4 - 284:17 Ronald Kieper 12/19/2019

 284 4 BY MR. BUCHANAN:

 284 5 Q. Okay. At the bottom of the first page,

 284 6 the regulations, the EPA regulations is what they are

 284 7 referring to in the prior sentence, but:

 284 8 "The regulations also require hearing

 284 9 protection device manufacturers to test their products

 284 10 in accordance with EPA testing protocols and to label

Re: [284:4-284:17]

Def Obj 3M MIL No. 8

SUSTAINED

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Ronald Kieper 12/19/2019 62

 284 11 their products" with what, sir?

 284 12 A. "With an accurate rating."

 284 13 Q. Right.

 284 14 And when we go to the second page, we see

 284 15 the comments about that, that you all were quoting an

 284 16 NRR that when the EPA came in and checked it, you

 284 17 couldn't support, right?

284:25 - 285:2 Ronald Kieper 12/19/2019

 284 25 Q. Do you see that, sir?

 285 1 A. Yeah, I see the -- yeah, I'm looking at

 285 2 Page 2.

Re: [284:25-285:2]

Def Obj foundation (602)

SUSTAINED

285:3 - 285:12 Ronald Kieper 12/19/2019

 285 3 Q. Okay. And do you recall, sir, that EPA

 285 4 came in, supervised retesting of your product, these

 285 5 were foamies, not Combat Arms in 1990s, but supervised

 285 6 the retesting of your product, and when they did that

 285 7 your product provided about 50 percent of the noise

 285 8 reduction that was claimed on the label.

 285 9 Do you see that?

 285 10 MS. ELIZABETH: Objection; foundation.

 285 11 BY THE WITNESS:

 285 12 A. Yes, I see that.

Re: [285:3-285:12]

Def Obj foundation (602); 3M MIL No. 

8

SUSTAINED

285:13 - 285:13 Ronald Kieper 12/19/2019

 285 13 BY MR. BUCHANAN:

285:14 - 285:18 Ronald Kieper 12/19/2019

 285 14 Q. That's not a good thing, right?

 285 15 MS. ELIZABETH: Objection; form.

 285 16 BY THE WITNESS:

 285 17 A. I don't know. They were two different --

 285 18 obviously two different tests.

Re: [285:14-285:18]

Def Obj vague; argumentative; (611, 

403); foundation (602); 3M MIL No. 8

SUSTAINED

285:19 - 285:20 Ronald Kieper 12/19/2019

 285 19 BY MR. BUCHANAN:

 285 20 Q. Right, right.

285:21 - 286:3 Ronald Kieper 12/19/2019

 285 21 So there was a test you all were using

 285 22 that provided one measure and there was another test,

 285 23 a retest, that shows about 50 percent of what you were

 285 24 telling people publicly, right?

 285 25 MS. ELIZABETH: Objection; foundation.

Re: [285:21-286:3]

Def Obj foundation (602); 3M MIL No. 

8

OVERRULED

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Ronald Kieper 12/19/2019 63

 286 1 BY MR. BUCHANAN:

 286 2 Q. That's what this says?

 286 3 A. That's what this says.

286:4 - 286:10 Ronald Kieper 12/19/2019

 286 4 Q. Well, you were in the lab when this was

 286 5 all happening, right?

 286 6 A. I was in the lab in 1993, yes.

 286 7 Q. Did you do these tests that came up

 286 8 50 percent under what you were publicly stating?

 286 9 A. I did the labeling, the current labeling

 286 10 tests for the E-A-R foam plug.

Re: [286:4-286:10]

Def Obj 3M MIL No. 8

OVERRULED

286:11 - 286:16 Ronald Kieper 12/19/2019

 286 11 Q. Are you aware you all got a $900,000 fine

 286 12 for putting forward an NRR that was twice as high as

 286 13 the one that could really be supported?

 286 14 MS. ELIZABETH: Objection; form, foundation.

 286 15 BY THE WITNESS:

 286 16 A. No, I wasn't aware of the fine.

Re: [286:11-286:16]

Def Obj 3M MIL No. 8; foundation 

(602)

OVERRULED

286:18 - 286:24 Ronald Kieper 12/19/2019

 286 18 Q. The next paragraph continues:

 286 19 "Acting Assistant Attorney General Myles

 286 20 Flint of the Environment and Natural Resources

 286 21 Division said, 'This is the largest civil penalty

 286 22 under the statute.'"

 286 23 Do you see that?

 286 24 A. Yes.

Re: [286:18-286:24]

Def Obj 3M MIL No. 8; foundation 

(602)

SUSTAINED

286:25 - 287:7 Ronald Kieper 12/19/2019

 286 25 Q. "Correct labeling and adequate testing are

 287 1 absolutely necessary for the safety of the public."

 287 2 Let's pause.

 287 3 Do you agree?

 287 4 MS. ELIZABETH: Objection; form, foundation.

 287 5 BY THE WITNESS:

 287 6 A. That's -- that's his opinion. I don't --

 287 7 I don't have an opinion on it.

Re: [286:25-287:7]

Def Obj 3M MIL No. 8; foundation 

(602); 701

SUSTAINED

288:4 - 288:10 Ronald Kieper 12/19/2019

 288 4 Q. You just shouldn't kill tests because they

 288 5 are 50 percent of the level that you want them to come

 288 6 in at.

Re: [288:4-288:10]

Def Obj 3M MIL No. 18; foundation 

(602); argumentative (611, 403); 3M 

MIL No. 8

OVERRULED

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Ronald Kieper 12/19/2019 64

 288 7 You'd agree with me on that, right, sir?

 288 8 MS. ELIZABETH: Objection; form.

 288 9 BY THE WITNESS:

 288 10 A. I don't have an opinion on that.

288:11 - 288:22 Ronald Kieper 12/19/2019

 288 11 BY MR. BUCHANAN:

 288 12 Q. Do you think that's right?

 288 13 MS. ELIZABETH: Objection; form.

 288 14 BY MR. BUCHANAN:

 288 15 Q. Shutting down tests so you don't get

 288 16 numbers that are a problem for you?

 288 17 MS. ELIZABETH: Objection; form.

 288 18 BY THE WITNESS:

 288 19 A. I didn't shut down the test.

 288 20 BY MR. BUCHANAN:

 288 21 Q. Who did?

 288 22 A. Mr. Berger.

Re: [288:11-288:22]

Def Obj 3M MIL No. 8; foundation 

(602); 3M MIL No. 18; vague; 

argumentative (611, 403)

OVERRULED

298:11 - 298:16 Ronald Kieper 12/19/2019

 298 11 Q. Do you remember killing studies at the

 298 12 eighth or the ninth person because the NRR wasn't high

 298 13 enough?

 298 14 MS. ELIZABETH: Objection; form.

 298 15 BY THE WITNESS:

 298 16 A. I didn't -- I didn't make that decision.

Re: [298:11-298:16]

Def Obj misstates; asked; 

argumentative (611, 403); foundation 

(602); 3M MIL No. 18; cumulative 

(403)

OVERRULED

298:17 - 298:17 Ronald Kieper 12/19/2019

 298 17 BY MR. BUCHANAN:

298:18 - 299:2 Ronald Kieper 12/19/2019

 298 18 Q. I see.

 298 19 Do you remember Elliott Berger killing

 298 20 studies or telling you to stop studies because the NRR

 298 21 wasn't high enough?

 298 22 MS. ELIZABETH: Objection; form, asked and

 298 23 answered.

 298 24 BY THE WITNESS:

 298 25 A. I don't know that he said that. He

 299 1 stopped -- you know, there were -- he stopped, you

 299 2 know, numerous tests over the years.

Re: [298:18-299:2]

Def Obj 3M MIL No. 18; foundation 

(602); asked; argumentative; misstates; 

asked (611, 403); cumulative (403)

OVERRULED

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Ronald Kieper 12/19/2019 65

310:8 - 310:22 Ronald Kieper 12/19/2019

 310 8 (WHEREUPON, a certain document was

 310 9 marked Ron Kieper Deposition Exhibit

 310 10 No. 25, for identification, as of

 310 11 12/19/2019.)

 310 12 BY MR. BUCHANAN:

 310 13 Q. It is Exhibit 25.

 310 14 Sir, Exhibit 25 is another exchange

 310 15 between these two marketing folks, Mr. Moses and

 310 16 Dr. Ohlin, now working for Aearo, 2009. The subject

 310 17 is "Re: The new NRR for the CAE."

 310 18 Do you see that, sir?

 310 19 A. Yes.

 310 20 Q. Okay. I'd like to take you back, if we

 310 21 could, sir, to your earliest in time e-mails. It's

 310 22 a -- I think it is .5.

Re: [310:8-310:22]

Def Obj relevance (401, 402); 

foundation (602)

DEFER RULING

311:6 - 311:9 Ronald Kieper 12/19/2019

 311 6 MR. BUCHANAN: We are on top of -- or at the

 311 7 middle of the page on .5. Can you blow that -- do you

 311 8 have it out?

 311 9 BY MR. BUCHANAN:

Re: [311:6-311:9]

Def Obj relevance (401, 402); 

foundation (602)

DEFER RULING

311:10 - 312:1 Ronald Kieper 12/19/2019

 311 10 Q. It is from Doug Ohlin to Doug Moses. It

 311 11 begins:

 311 12 "I'd like this to be kept between you and

 311 13 me. There is already enough tension between the

 311 14 research and marketing groups and your shop without me

 311 15 adding to it."

 311 16 Do you see that, sir? And then it

 311 17 continues.

 311 18 A. I'm sorry. What was your question?

 311 19 Q. I was just asking whether you saw it?

 311 20 A. Yeah, I read through it.

 311 21 Q. Okay. Thank you.

 311 22 So this Doug Ohlin is working for you all

 311 23 in 2009 together with Doug Moses in the military

 311 24 strategic business unit.

 311 25 Did you know that, sir?

 312 1 A. I may have known that. I don't know that.

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Ronald Kieper 12/19/2019 66

312:8 - 312:14 Ronald Kieper 12/19/2019

 312 8 Q. Were you aware, sir, that -- the

 312 9 observation that there was tension between the

 312 10 research and marketing groups concerning the

 312 11 development of products?

 312 12 MS. ELIZABETH: Objection; foundation.

 312 13 BY THE WITNESS:

 312 14 A. No, I wasn't aware of that.

Re: [312:8-312:14]

Def Obj foundation (602); 

argumentative (611, 403)

DEFER RULING

312:16 - 312:20 Ronald Kieper 12/19/2019

 312 16 Q. In the next paragraph, it notes that:

 312 17 "The lab would use every legal trick in

 312 18 the book to get the highest NRRs possible."

 312 19 Do you see that, sir?

 312 20 A. I see that.

Re: [312:16-312:20]

Def Obj relevance (401, 402); 

foundation (602)

DEFER RULING

312:21 - 312:22 Ronald Kieper 12/19/2019

 312 21 Q. Okay. You are in the lab, right?

 312 22 A. I was in the E-A-RCAL Lab, yes.

312:23 - 313:1 Ronald Kieper 12/19/2019

 312 23 Q. Right. What tricks were you all using?

 312 24 MS. ELIZABETH: Objection; form.

 312 25 BY THE WITNESS:

 313 1 A. I wasn't using any tricks.

Re: [312:23-313:1]

Def Obj misstates; vague;

argumentative (611, 403); foundation 

(602)

DEFER RULING

313:2 - 313:2 Ronald Kieper 12/19/2019

 313 2 BY MR. BUCHANAN:

313:3 - 313:9 Ronald Kieper 12/19/2019

 313 3 Q. You didn't make the lab manual, did you?

 313 4 MS. ELIZABETH: I'm sorry. One second.

 313 5 BY THE WITNESS:

 313 6 A. I'm sorry. The --

 313 7 MS. ELIZABETH: Objection; form.

 313 8 BY THE WITNESS:

 313 9 A. The lab manual?

Re: [313:3-313:9]

Def Obj misstates; vague (611, 403)

DEFER RULING

313:10 - 313:10 Ronald Kieper 12/19/2019

 313 10 BY MR. BUCHANAN:

313:11 - 313:18 Ronald Kieper 12/19/2019

 313 11 Q. Yeah, all of the tricks, the legal tricks

 313 12 you guys would be using to get the highest NRRs

 313 13 possible, what did you all have in your bag of tricks

 313 14 in the lab, sir?

Re: [313:11-313:18]

Def Obj foundation (602); 

argumentative; asked (611, 403)

SUSTAINED

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Ronald Kieper 12/19/2019 67

 313 15 MS. ELIZABETH: Objection; form.

 313 16 BY THE WITNESS:

 313 17 A. I don't know what this man is talking

 313 18 about.

313:19 - 313:19 Ronald Kieper 12/19/2019

 313 19 BY MR. BUCHANAN:

313:20 - 314:10 Ronald Kieper 12/19/2019

 313 20 Q. Well, we have talked about some of them

 313 21 today, right?

 313 22 MS. ELIZABETH: Objection; form.

 313 23 BY MR. BUCHANAN:

 313 24 Q. One way to get high NRRs is to just keep

 313 25 running studies and don't let the ones you don't like

 314 1 finish, right?

 314 2 MS. ELIZABETH: Objection; form.

 314 3 BY MR. BUCHANAN:

 314 4 Q. That's one way to get a high NRR. Would

 314 5 you agree?

 314 6 MS. ELIZABETH: Same objection.

 314 7 BY THE WITNESS:

 314 8 A. One -- no. Each test is individual and

 314 9 the results are individual based on the subjects

 314 10 tested.

Re: [313:20-314:10]

Def Obj foundation (602); 

argumentative; asked (611, 403); 3M 

MIL No. 18

SUSTAINED

313:24 - 314:21 Ronald Kieper 12/19/2019

 313 24 Q. One way to get high NRRs is to just keep

 313 25 running studies and don't let the ones you don't like

 314 1 finish, right?

 314 2 MS. ELIZABETH: Objection; form.

 314 3 BY MR. BUCHANAN:

 314 4 Q. That's one way to get a high NRR. Would

 314 5 you agree?

 314 6 MS. ELIZABETH: Same objection.

 314 7 BY THE WITNESS:

 314 8 A. One -- no. Each test is individual and

 314 9 the results are individual based on the subjects

 314 10 tested.

 314 11 BY MR. BUCHANAN:

 314 12 Q. Okay. Well, let's stay with my question.

 314 13 A. Okay.

Re: [313:24-314:21]

Def Obj 3M MIL No. 18; 

argumentative; misstates (611, 403)

OVERRULED

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Ronald Kieper 12/19/2019 68

 314 14 Q. One way to get a high NRR is just to keep

 314 15 running tests and stopping tests when you don't like

 314 16 those results and letting the tests that you think is

 314 17 going to get a good result go to conclusion.

 314 18 That's a trick, right?

 314 19 MS. ELIZABETH: Objection; form.

 314 20 BY THE WITNESS:

 314 21 A. That would be a trick.

314:14 - 314:21 Ronald Kieper 12/19/2019

 314 14 Q. One way to get a high NRR is just to keep

 314 15 running tests and stopping tests when you don't like

 314 16 those results and letting the tests that you think is

 314 17 going to get a good result go to conclusion.

 314 18 That's a trick, right?

 314 19 MS. ELIZABETH: Objection; form.

 314 20 BY THE WITNESS:

 314 21 A. That would be a trick.

Re: [314:14-314:21]

Def Obj 3M MIL No. 18; 

argumentative; misstates; asked (611, 

403)

SUSTAINED (repeat)

314:24 - 315:4 Ronald Kieper 12/19/2019

 314 24 And so we have some examples of that,

 314 25 right?

 315 1 MS. ELIZABETH: Objection; form, foundation.

 315 2 BY THE WITNESS:

 315 3 A. No, I don't see that we have -- we have an

 315 4 example of that.

Re: [314:24-315:4]

Def Obj 3M MIL No. 18; 

argumentative; misstates; asked; vague 

(611, 403); foundation (602)

SUSTAINED

314:24 - 315:4 Ronald Kieper 12/19/2019

 314 24 And so we have some examples of that,

 314 25 right?

 315 1 MS. ELIZABETH: Objection; form, foundation.

 315 2 BY THE WITNESS:

 315 3 A. No, I don't see that we have -- we have an

 315 4 example of that.

Re: [314:24-315:4]

Def Obj argumentative; vague; 

misstates (611, 403); 3M MIL No. 18

SUSTAINED (repeat)

314:24 - 316:8 Ronald Kieper 12/19/2019

 314 24 And so we have some examples of that,

 314 25 right?

 315 1 MS. ELIZABETH: Objection; form, foundation.

 315 2 BY THE WITNESS:

 315 3 A. No, I don't see that we have -- we have an

 315 4 example of that.

 315 5 BY MR. BUCHANAN:

Re: [314:24-316:8]

Def Obj 3M MIL No. 18

SUSTAINED (repeat)

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Ronald Kieper 12/19/2019 69

 315 6 Q. Okay. And we have one study you ran on

 315 7 the Combat Arms Version 2, you're monitoring the data

 315 8 as it's coming across and you are doing real-time

 315 9 computations of what the NRR looks like, and you are

 315 10 sharing that information with Mr. Berger because he

 315 11 wants you to, right?

 315 12 A. Yes, I communicated with Elliott

 315 13 regularly.

 315 14 Q. And Mr. Berger comes back to you and he

 315 15 terminates the study?

 315 16 MS. ELIZABETH: Objection; form.

 315 17 BY MR. BUCHANAN:

 315 18 Q. Right?

 315 19 A. Yes, he stopped the -- stopped the test.

 315 20 Q. And then you rerun it and you flip the

 315 21 flanges back and you got a 22 rather than the 11 you

 315 22 were going to get, right?

 315 23 MS. ELIZABETH: Objection; form.

 315 24 BY THE WITNESS:

 315 25 A. I don't know what the final NRR would have

 316 1 been.

 316 2 BY MR. BUCHANAN:

 316 3 Q. We know it was a number you didn't want to

 316 4 see -- or at least Mr. Berger didn't want to see,

 316 5 right?

 316 6 MS. ELIZABETH: Objection; form, foundation.

 316 7 BY THE WITNESS:

 316 8 A. I don't know why he stopped the test.

315:6 - 315:13 Ronald Kieper 12/19/2019

 315 6 Q. Okay. And we have one study you ran on

 315 7 the Combat Arms Version 2, you're monitoring the data

 315 8 as it's coming across and you are doing real-time

 315 9 computations of what the NRR looks like, and you are

 315 10 sharing that information with Mr. Berger because he

 315 11 wants you to, right?

 315 12 A. Yes, I communicated with Elliott

 315 13 regularly.

Re: [315:6-315:13]

Def Obj cumulative (403)

OVERRULED

315:14 - 315:19 Ronald Kieper 12/19/2019

 315 14 Q. And Mr. Berger comes back to you and he

Re: [315:14-315:19]

Def Obj foundation (602); asked; 

OVERRULED

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Ronald Kieper 12/19/2019 70

 315 15 terminates the study?

 315 16 MS. ELIZABETH: Objection; form.

 315 17 BY MR. BUCHANAN:

 315 18 Q. Right?

 315 19 A. Yes, he stopped the -- stopped the test.

misstates; argumentative (611, 403); 3M 

MIL No. 18

315:20 - 316:1 Ronald Kieper 12/19/2019

 315 20 Q. And then you rerun it and you flip the

 315 21 flanges back and you got a 22 rather than the 11 you

 315 22 were going to get, right?

 315 23 MS. ELIZABETH: Objection; form.

 315 24 BY THE WITNESS:

 315 25 A. I don't know what the final NRR would have

 316 1 been.

Re: [315:20-316:1]

Def Obj argumentative; asked; 

misstates (611, 403); foundation (602); 

3M MIL No. 18

OVERRULED

316:3 - 316:8 Ronald Kieper 12/19/2019

 316 3 Q. We know it was a number you didn't want to

 316 4 see -- or at least Mr. Berger didn't want to see,

 316 5 right?

 316 6 MS. ELIZABETH: Objection; form, foundation.

 316 7 BY THE WITNESS:

 316 8 A. I don't know why he stopped the test.

Re: [316:3-316:8]

Def Obj argumentative; misstates; 

asked (611, 403); foundation (602)

SUSTAINED

318:24 - 319:6 Ronald Kieper 12/19/2019

 318 24 Q. Okay. We could agree, sir, that based on

 318 25 what you just told us, you flipped back the flanges

 319 1 when you retested the green end, correct?

 319 2 MS. ELIZABETH: Objection; form, foundation.

 319 3 BY MR. BUCHANAN:

 319 4 Q. In study 017 to be specific?

 319 5 A. I believe that's -- those were the

 319 6 instructions that I followed.

Re: [318:24-319:6]

Def Obj asked (611, 403)

OVERRULED

319:7 - 319:11 Ronald Kieper 12/19/2019

 319 7 Q. And you did not retest the yellow end at

 319 8 the same time with the flipped back flanges, right?

 319 9 MS. ELIZABETH: Objection; foundation.

 319 10 BY THE WITNESS:

 319 11 A. That's right.

Re: [319:7-319:11]

Def Obj foundation (602); asked (611, 

403)

OVERRULED

319:12 - 319:12 Ronald Kieper 12/19/2019

 319 12 BY MR. BUCHANAN:

319:13 - 319:21 Ronald Kieper 12/19/2019

 319 13 Q. One fitting technique for one end of the

Re: [319:13-319:21]

Def Obj cumulative (403)

OVERRULED

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Ronald Kieper 12/19/2019 71

 319 14 plug, a different fitting technique for the other end

 319 15 of the plug, that's your testimony, right, sir, that's

 319 16 what you did?

 319 17 A. That's my -- that's what I recall.

 319 18 Q. Mr. Berger never told you to retest the

 319 19 yellow end with the flanges flipped back so you could

 319 20 get that deep insertion?

 319 21 A. Not that I recall, no.

319:22 - 320:3 Ronald Kieper 12/19/2019

 319 22 Q. Okay. So in this bag of tricks you all

 319 23 had in the lab, what are some of the other things you

 319 24 did to ensure you got high NRRs?

 319 25 MS. ELIZABETH: Objection; form.

 320 1 BY THE WITNESS:

 320 2 A. I trained the subjects well and I followed

 320 3 the test standard when I did the tests.

Re: [319:22-320:3]

Def Obj argumentative; asked; vague; 

misstates (611, 403)

SUSTAINED

320:4 - 320:4 Ronald Kieper 12/19/2019

 320 4 BY MR. BUCHANAN:

320:5 - 320:11 Ronald Kieper 12/19/2019

 320 5 Q. How about cherry-picking your test

 320 6 subjects to make sure you got the highest attenuating

 320 7 subjects for each type of product, that would be a

 320 8 trick, right?

 320 9 MS. ELIZABETH: Objection; form.

 320 10 BY THE WITNESS:

 320 11 A. I don't -- I don't recall ever doing that.

Re: [320:5-320:11]

Def Obj argumentative; misstates; 

vague; asked (611, 403); 3M MIL No. 

23

SUSTAINED

320:12 - 320:12 Ronald Kieper 12/19/2019

 320 12 BY MR. BUCHANAN:

320:13 - 320:24 Ronald Kieper 12/19/2019

 320 13 Q. Didn't you all form test panels, sir,

 320 14 where certain people were categorized as plug testers

 320 15 and other people were categorized as earmuff testers

 320 16 and other people were categorized as testers for other

 320 17 devices, didn't you sort your panels into those

 320 18 divisions, sir?

 320 19 MS. ELIZABETH: Objection; form.

 320 20 BY THE WITNESS:

 320 21 A. At a later date than the Combat Arms test

 320 22 that we were talking about, we did form test panels in

Re: [320:13-320:24]

Def Obj asked; misstates; 

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

23; relevance (401, 402)

OVERRULED

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Ronald Kieper 12/19/2019 72

 320 23 the lab and a given subject could be on one or all of

 320 24 the panels.

321:1 - 321:1 Ronald Kieper 12/19/2019

 321 1 Q. Right.

321:2 - 321:9 Ronald Kieper 12/19/2019

 321 2 And what you did was you identified people

 321 3 who were high attenuators, meaning you could get good

 321 4 fits and good protection and good readings, and,

 321 5 therefore, boost NRRs, right?

 321 6 MS. ELIZABETH: Objection; form.

 321 7 BY THE WITNESS:

 321 8 A. The data were more consistent generally,

 321 9 yes.

Re: [321:2-321:9]

Def Obj argumentative; asked; 

misstates (611, 403); 3M MIL No. 23; 

relevance (401, 402)

OVERRULED

321:10 - 321:10 Ronald Kieper 12/19/2019

 321 10 BY MR. BUCHANAN:

321:11 - 321:18 Ronald Kieper 12/19/2019

 321 11 Q. And boost NRRs?

 321 12 MS. ELIZABETH: Were you finished with your

 321 13 answer?

 321 14 BY THE WITNESS:

 321 15 A. I was saying that the -- when we formed

 321 16 the test panels, the test results tended to be less

 321 17 variable and less variability will increase the NRR,

 321 18 yes.

Re: [321:11-321:18]

Def Obj 3M MIL No. 23; 

argumentative (611, 403)

OVERRULED

321:19 - 321:19 Ronald Kieper 12/19/2019

 321 19 BY MR. BUCHANAN:

321:20 - 322:4 Ronald Kieper 12/19/2019

 321 20 Q. There you go. Right.

 321 21 You formed test panels with people who

 321 22 were good test takers to test your products, Aearo

 321 23 products, to raise NRRs.

 321 24 Isn't that what happened?

 321 25 MS. ELIZABETH: Objection; form.

 322 1 BY THE WITNESS:

 322 2 A. My recollection is that we formed the

 322 3 panels so that we would get more consistent results in

 322 4 the testing that we did.

Re: [321:20-322:4]

Def Obj 3M MIL No. 23; misstates; 

argumentative; asked (611, 403); 

foundation (602); relevance (401, 402)

OVERRULED

322:11 - 322:18 Ronald Kieper 12/19/2019

 322 11 Q. Please tell the jury what happens if you

Re: [322:11-322:18]

Def Obj misstates; vague; 

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 84 of 128
Ronald Kieper 12/19/2019 73

 322 12 get more consistent results as it relates to these

 322 13 NRRs that you are getting pressure about, what happens

 322 14 to them?

 322 15 MS. ELIZABETH: Objection; form.

 322 16 BY THE WITNESS:

 322 17 A. In the first place, I didn't feel

 322 18 pressure.

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

23; foundation (602)

322:19 - 322:19 Ronald Kieper 12/19/2019

 322 19 BY MR. BUCHANAN:

322:20 - 322:25 Ronald Kieper 12/19/2019

 322 20 Q. I'm asking you what happens to the NRRs,

 322 21 sir, when you form these test panels and get more

 322 22 consistent results?

 322 23 MS. ELIZABETH: Objection; form.

 322 24 BY THE WITNESS:

 322 25 A. The NRRs were good.

Re: [322:20-322:25]

Def Obj 3M MIL No. 23; misstates; 

vague; asked (611, 403)

SUSTAINED

322:20 - 322:25 Ronald Kieper 12/19/2019

 322 20 Q. I'm asking you what happens to the NRRs,

 322 21 sir, when you form these test panels and get more

 322 22 consistent results?

 322 23 MS. ELIZABETH: Objection; form.

 322 24 BY THE WITNESS:

 322 25 A. The NRRs were good.

Re: [322:20-322:25]

Def Obj relevance (401, 402); vague; 

misstates; argumentative (611, 403)

OVERRULED

322:26 - 323:1 Ronald Kieper 12/19/2019

 323 1 BY MR. BUCHANAN:

323:2 - 323:5 Ronald Kieper 12/19/2019

 323 2 Q. The NRRs go up, right?

 323 3 MS. ELIZABETH: Objection; form.

 323 4 BY THE WITNESS:

 323 5 A. They could go up.

Re: [323:2-323:5]

Def Obj 702; asked; argumentative 

(611, 403); 3M MIL No. 23

OVERRULED

323:6 - 323:7 Ronald Kieper 12/19/2019

 323 6 BY MR. BUCHANAN:

 323 7 Q. Less variability raises NRRs, right, sir?

323:9 - 323:11 Ronald Kieper 12/19/2019

 323 9 BY THE WITNESS:

 323 10 A. Less variable tends to raise the NRRs.

 323 11 BY MR. BUCHANAN:

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 85 of 128
Ronald Kieper 12/19/2019 74

323:12 - 323:15 Ronald Kieper 12/19/2019

 323 12 Q. That's good for marketing, isn't it?

 323 13 MS. ELIZABETH: Objection; form.

 323 14 BY THE WITNESS:

 323 15 A. I'm not in marketing. I don't know.

Re: [323:12-323:15]

Def Obj foundation (602); cumulative 

(403)

SUSTAINED

323:16 - 323:16 Ronald Kieper 12/19/2019

 323 16 BY MR. BUCHANAN:

323:17 - 323:25 Ronald Kieper 12/19/2019

 323 17 Q. Well, you know higher NRRs say more

 323 18 protection, right?

 323 19 MS. ELIZABETH: Objection.

 323 20 BY MR. BUCHANAN:

 323 21 Q. You don't need to be a marketer to know

 323 22 that?

 323 23 MS. ELIZABETH: Objection; form.

 323 24 BY THE WITNESS:

 323 25 A. Higher NRRs imply more protection, yes.

Re: [323:17-323:25]

Def Obj argumentative; asked; 

misstates (611, 403); foundation (602); 

702

OVERRULED

324:3 - 324:16 Ronald Kieper 12/19/2019

 324 3 And so just in terms of consumers, sir,

 324 4 who might be thinking that when you are quoting an NRR

 324 5 in your product that actually represents some sample

 324 6 of the population that could be representative, you

 324 7 all have cherry-picked the population, looked at prior

 324 8 testing results and sifted potential test

 324 9 candidates -- subjects into buckets based on how

 324 10 consistent and how high they attenuate for the

 324 11 products you are testing.

 324 12 Isn't that what happened?

 324 13 MS. ELIZABETH: Objection; form.

 324 14 BY THE WITNESS:

 324 15 A. We put people on the panel that tested

 324 16 well with these four individual types of products.

Re: [324:3-324:16]

Def Obj 3M MIL No. 23; foundation 

(602); argumentative; misstates; vague; 

compound (611, 403); relevance (401, 

402)

SUSTAINED

324:17 - 324:18 Ronald Kieper 12/19/2019

 324 17 BY MR. BUCHANAN:

 324 18 Q. Right.

324:19 - 324:24 Ronald Kieper 12/19/2019

 324 19 So basically, you decide to test people

 324 20 with your products who are the A students, right?

 324 21 MS. ELIZABETH: Objection; form.

Re: [324:19-324:24]

Def Obj argumentative; misstates; 

asked (611, 403); 3M MIL No. 23; 

relevance (401, 402)

OVERRULED

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Ronald Kieper 12/19/2019 75

 324 22 BY THE WITNESS:

 324 23 A. You could characterize it that way if you

 324 24 want to.

324:25 - 325:1 Ronald Kieper 12/19/2019

 324 25 BY MR. BUCHANAN:

 325 1 Q. Right.

325:2 - 325:11 Ronald Kieper 12/19/2019

 325 2 You went through your panels, you

 325 3 identified who is the A student on earplugs, okay.

 325 4 That person goes in that bucket. They go in the

 325 5 earplug bucket. Who is an A students on earmuffs,

 325 6 okay, put people in that bucket.

 325 7 And then when it came time to test your

 325 8 products, you tested them with your A students, right?

 325 9 MS. ELIZABETH: Objection; form.

 325 10 BY THE WITNESS:

 325 11 A. To get the best results we could, yes.

Re: [325:2-325:11]

Def Obj 3M MIL No. 22; foundation 

(602); argumentative; misstates(611, 

403)

OVERRULED

334:23 - 335:3 Ronald Kieper 12/19/2019

 334 23 So your A students when you put them

 334 24 altogether in one room, they all got As. That's not

 334 25 surprising, is it?

 335 1 MS. ELIZABETH: Objection; form.

 335 2 BY THE WITNESS:

 335 3 A. That was why we formed the panels.

Re: [334:23-335:3]

Def Obj 3M MIL No. 23; foundation 

(602); argumentative; misstates; asked 

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

OVERRULED

335:4 - 335:5 Ronald Kieper 12/19/2019

 335 4 BY MR. BUCHANAN:

 335 5 Q. Right.

335:6 - 335:10 Ronald Kieper 12/19/2019

 335 6 To get the higher numbers, right?

 335 7 MS. ELIZABETH: Objection; form.

 335 8 BY THE WITNESS:

 335 9 A. To get more homogeneous values in our

 335 10 testing in the lab, yes.

Re: [335:6-335:10]

Def Obj 3M MIL No. 23; foundation 

(602); argumentative; misstates; asked 

(611, 403)

OVERRULED

335:11 - 335:19 Ronald Kieper 12/19/2019

 335 11 BY MR. BUCHANAN:

 335 12 Q. Higher NRRs, that's what you wanted,

 335 13 that's what you got, right?

 335 14 MS. ELIZABETH: Objection; form, misstates the

 335 15 testimony.

Re: [335:11-335:19]

Def Obj 3M MIL No. 23; foundation 

(602); argumentative; misstates; asked 

(611, 403)

OVERRULED

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Ronald Kieper 12/19/2019 76

 335 16 MR. BUCHANAN: I don't think it does.

 335 17 BY MR. BUCHANAN:

 335 18 Q. You can answer.

 335 19 A. That was the result, yes.

336:7 - 336:11 Ronald Kieper 12/19/2019

 336 7 But we know the population is not made up

 336 8 only of A students, is it?

 336 9 MS. ELIZABETH: Objection; foundation, form.

 336 10 BY THE WITNESS:

 336 11 A. There are, yeah, a wide range of people.

Re: [336:7-336:11]

Def Obj foundation (602); misstates; 

argumentative; vague (611, 403); 3M 

MIL No. 23; relevance (401, 402)

OVERRULED

336:12 - 336:12 Ronald Kieper 12/19/2019

 336 12 BY MR. BUCHANAN:

336:13 - 336:19 Ronald Kieper 12/19/2019

 336 13 Q. Right, right.

 336 14 And when you test A -- A students with B

 336 15 students and C students, would you be surprised that

 336 16 the class average isn't an A?

 336 17 MS. ELIZABETH: Objection; form.

 336 18 BY THE WITNESS:

 336 19 A. No.

Re: [336:13-336:19]

Def Obj 3M MIL No. 23; foundation 

(602); argumentative; misstates; asked; 

vague (611, 403); relevance (401, 402)

OVERRULED

336:20 - 336:20 Ronald Kieper 12/19/2019

 336 20 BY MR. BUCHANAN:

336:21 - 336:25 Ronald Kieper 12/19/2019

 336 21 Q. Yeah, you know, the class average is going

 336 22 to be lower, right?

 336 23 MS. ELIZABETH: Objection; form.

 336 24 BY THE WITNESS:

 336 25 A. Yes.

Re: [336:21-336:25]

Def Obj 3M MIL No. 22; foundation 

(602); argumentative; misstates; asked 

(611, 403)

OVERRULED

337:21 - 337:24 Ronald Kieper 12/19/2019

 337 21 Q. Okay. Where in the communications to

 337 22 anybody outside the company who were purchasing these,

 337 23 buying these, do you convey that you're only testing

 337 24 the A students?

Re: [337:21-337:24]

Pltf Obj it is cumulative and therefore 

not clarification counter

SUSTAINED

338:1 - 338:4 Ronald Kieper 12/19/2019

 338 1 BY THE WITNESS:

 338 2 A. In all of our testing we followed the

 338 3 guidelines in the S3.19 test standard.

 338 4 BY MR. BUCHANAN:

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 88 of 128
Ronald Kieper 12/19/2019 77

338:5 - 338:10 Ronald Kieper 12/19/2019

 338 5 Q. Oh, I'm sorry, sir. Does the S3.19 test

 338 6 standard say only test A students?

 338 7 MS. ELIZABETH: Objection; form.

 338 8 BY THE WITNESS:

 338 9 A. My understanding is it doesn't speak to

 338 10 subject selection.

Re: [338:5-338:10]

Def Obj argumentative; misstates; 

asked (611, 403); 3M MIL No. 23

OVERRULED

340:5 - 340:21 Ronald Kieper 12/19/2019

 340 5 Q. I'm just wondering, did you ever share

 340 6 that outside of your company with the purchasers that

 340 7 these numbers are what they are because -- not just

 340 8 because you are using Experimenter-Fit, you are using

 340 9 Experimenter-Fit on your A students only?

 340 10 MS. ELIZABETH: Objection; form, foundation.

 340 11 BY THE WITNESS:

 340 12 A. I didn't -- was there a question?

 340 13 BY MR. BUCHANAN:

 340 14 Q. There was, sir.

 340 15 Did you ever share that with purchasers,

 340 16 the purchasing community that that's the way you were

 340 17 coming up with those NRRs you were quoting?

 340 18 MS. ELIZABETH: Objection; form.

 340 19 BY THE WITNESS:

 340 20 A. I don't know. I didn't -- I wasn't in

 340 21 marketing.

Re: [340:5-340:21]

Def Obj 3M MIL No. 23; foundation 

(602); argumentative; misstates; asked 

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

OVERRULED

341:7 - 342:3 Ronald Kieper 12/19/2019

 341 7 (WHEREUPON, a certain document was

 341 8 marked Ron Kieper Deposition Exhibit

 341 9 No. 27, for identification, as of

 341 10 12/19/2019.)

 341 11 BY MR. BUCHANAN:

 341 12 Q. Sir, passing you what is Exhibit 27 to

 341 13 your deposition, it's a -- it's a document from

 341 14 November 30th, 2000, an e-mail from Mr. Berger to

 341 15 Brian Myers.

 341 16 Do you see that?

 341 17 A. Yes.

 341 18 Q. Okay. It says: "Performance reviews for

 341 19 Kieper and Kladden."

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 89 of 128
Ronald Kieper 12/19/2019 78

 341 20 Do you see that?

 341 21 A. Yes.

 341 22 Q. And Mr. Berger, I take it, as part of his

 341 23 job and function would be providing performance

 341 24 reviews and assessments of you and other people in the

 341 25 lab, is that right?

 342 1 A. Yes.

 342 2 Q. And you got those from time to time?

 342 3 A. Yes.

342:4 - 342:7 Ronald Kieper 12/19/2019

 342 4 Q. You've seen this document before?

 342 5 A. I haven't seen the one for Cyd Kladden.

 342 6 Q. Okay.

 342 7 A. I would have seen mine.

Re: [342:4-342:7]

Pltf Obj beyond the scope of 

clarification counter

SUSTAINED

342:8 - 342:19 Ronald Kieper 12/19/2019

 342 8 Q. Okay. Well, let's look at yours. If we

 342 9 go to .6, we see "Performance Assessment Addendum for

 342 10 Ron Kieper (11/30/2000)," right?

 342 11 A. Yes.

 342 12 Q. And this would be that year, just to

 342 13 orient our dates, this would be a few months after you

 342 14 had run that 015, 016 and 017 study, right?

 342 15 A. Yes, almost a year after.

 342 16 Q. Well, actually 11/30/2000 -- when did you

 342 17 write the flange report, sir?

 342 18 A. I'd have to look at it, but I -- my

 342 19 recollection is it was in May.

344:5 - 344:19 Ronald Kieper 12/19/2019

 344 5 Q. Okay. Well, let's look at on this page

 344 6 .6. Scroll down. There is a section on "major

 344 7 accomplishments," right?

 344 8 A. Yes.

 344 9 Q. Okay. And then below it, I think it is

 344 10 Section II B, "Tasks where Ron has exceeded, met, or

 344 11 fallen below expectations."

 344 12 Do you see that?

 344 13 A. Yes.

 344 14 Q. It says: "Ron's primary responsibility is

 344 15 REAT testing," right?

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 90 of 128
Ronald Kieper 12/19/2019 79

 344 16 A. Yes.

 344 17 Q. And those tests 015, 016 and 017 we talked

 344 18 about earlier today, those are REAT tests, right?

 344 19 A. Yes.

344:20 - 345:2 Ronald Kieper 12/19/2019

 344 20 Q. Okay. It states here in the middle of the

 344 21 paragraph, it says:

 344 22 "His skills in fitting subjects continue

 344 23 to improve and are undoubtedly in large part

 344 24 responsible for the high NRRs we continue to achieve

 344 25 on many of our earplugs."

 345 1 Right, sir?

 345 2 A. Yes.

Re: [344:20-345:2]

Def Obj relevance (401, 402)

OVERRULED

345:3 - 345:9 Ronald Kieper 12/19/2019

 345 3 Q. Okay. Do you remember being praised by

 345 4 Mr. Berger for your skill in helping the company get

 345 5 high NRRs?

 345 6 MS. ELIZABETH: Objection; form.

 345 7 BY THE WITNESS:

 345 8 A. Well, I see his praise in this document,

 345 9 yes.

Re: [345:3-345:9]

Def Obj relevance (401, 402); 

argumentative (611, 403)

OVERRULED

346:5 - 346:7 Ronald Kieper 12/19/2019

 346 5 Q. Okay. And you had an understanding, sir,

 346 6 that those NRRs were really important to the folks

 346 7 that were sending you products to test, right?

346:13 - 346:13 Ronald Kieper 12/19/2019

 346 13 THE WITNESS: Okay, no.

Re: [346:13-346:13]

Pltf Obj beyond the scope of 

clarification counter

SUSTAINED

346:15 - 346:17 Ronald Kieper 12/19/2019

 346 15 A. It was always my intention to get the best

 346 16 results that I could with a given hearing protector,

 346 17 yes.

350:17 - 350:22 Ronald Kieper 12/19/2019

 350 17 Q. Okay. You understood your marketing

 350 18 colleagues and your other colleagues were looking for

 350 19 high NRRs, didn't you, sir?

 350 20 MS. ELIZABETH: Objection; foundation, form.

 350 21 BY THE WITNESS:

 350 22 A. Yes, they -- they want high NRRs.

Re: [350:17-350:22]

Def Obj foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 91 of 128
Ronald Kieper 12/19/2019 80

350:23 - 350:23 Ronald Kieper 12/19/2019

 350 23 BY MR. BUCHANAN:

350:24 - 351:5 Ronald Kieper 12/19/2019

 350 24 Q. And you were getting praise from your boss

 350 25 for getting high NRRs, right?

 351 1 MS. ELIZABETH: Objection; form.

 351 2 BY THE WITNESS:

 351 3 A. I was getting -- I was getting -- right, I

 351 4 was getting praised for the job that I was doing in

 351 5 testing.

Re: [350:24-351:5]

Def Obj foundation (602); 

argumentative; misstates (611, 403)

OVERRULED

351:9 - 351:19 Ronald Kieper 12/19/2019

 351 9 (WHEREUPON, a certain document was

 351 10 marked Ron Kieper Deposition Exhibit

 351 11 No. 29, for identification, as of

 351 12 12/19/2019.)

 351 13 BY MR. BUCHANAN:

 351 14 Q. I'm passing you, sir, Exhibit 29. And we

 351 15 talked about this situation in 2000 where the study

 351 16 015 was cut short at eight people rather than finish

 351 17 it when you had an NRR of 11.

 351 18 Do you recall our discussion on that, sir?

 351 19 A. I recall the discussion around test 015.

351:20 - 352:6 Ronald Kieper 12/19/2019

 351 20 Q. And that was happening all of the time,

 351 21 wasn't it?

 351 22 MS. ELIZABETH: Objection; form.

 351 23 BY MR. BUCHANAN:

 351 24 Q. Where you'd get interim data and you'd be

 351 25 concerned about it and have to get permission about

 352 1 whether to continue the study, right?

 352 2 MS. ELIZABETH: Objection; form.

 352 3 BY THE WITNESS:

 352 4 A. The lab procedure was for me to check in

 352 5 with Elliott regarding all testing that I was doing,

 352 6 yes.

Re: [351:20-352:6]

Def Obj 3M MIL No. 18; foundation 

(602); misstates (611, 403)

OVERRULED

353:1 - 353:6 Ronald Kieper 12/19/2019

 353 1 Q. Have you ever seen it written down that

 353 2 you are going to stop studies and just keep running

 353 3 them and fishing for the right NRR until you get it?

Re: [353:1-353:6]

Def Obj argumentative; misstates (611, 

403); 3M MIL No. 18

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 92 of 128
Ronald Kieper 12/19/2019 81

 353 4 MS. ELIZABETH: Objection; form.

 353 5 BY THE WITNESS:

 353 6 A. No.

353:21 - 354:1 Ronald Kieper 12/19/2019

 353 21 Q. That would be an off-book procedure you

 353 22 all had, right?

 353 23 MS. ELIZABETH: Objection; form.

 353 24 BY THE WITNESS:

 353 25 A. That was the procedure that I followed

 354 1 with Elliott.

Re: [353:21-354:1]

Def Obj 3M MIL No. 18; 

argumentative; misstates; asked; vague 

(611, 403)

OVERRULED

354:23 - 356:13 Ronald Kieper 12/19/2019

 354 23 Q. It is Exhibit 29. This is Ron Kieper,

 354 24 that's you, sir, on Wednesday, May 16, 2007, to a

 354 25 Mr. Berger, Hamer, Smith and Voix?

 355 1 A. Voix.

 355 2 Q. Voix, okay.

 355 3 You are talking about this custom ear

 355 4 labeling test, right?

 355 5 A. Yes.

 355 6 Q. Do you remember doing the test?

 355 7 A. No, not really.

 355 8 Q. Okay. I guess you ran several thousand

 355 9 over the years, right?

 355 10 MS. ELIZABETH: Objection; form.

 355 11 BY THE WITNESS:

 355 12 A. I ran a number of labeling tests, yes.

 355 13 BY MR. BUCHANAN:

 355 14 Q. Okay. It says: I have tested nine

 355 15 subjects in this test."

 355 16 This is you speaking or writing, right?

 355 17 A. Yes, it is.

 355 18 Q. Okay. It says: "I have tested nine

 355 19 subjects in this test. The NRR is 20. The NRR for

 355 20 the previous version is 21."

 355 21 Do you see that?

 355 22 A. Yes.

 355 23 Q. Then it says: "I assume I should stop

 355 24 this test, yes?"

 355 25 Right?

Re: [354:23-356:13]

Def Obj 3M MIL No. 18; relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 93 of 128
Ronald Kieper 12/19/2019 82

 356 1 A. Yes.

 356 2 Q. So you're reaching out, sir, when your

 356 3 follow-up tests or another test on this product is

 356 4 yielding an NRR that is one number lower than the

 356 5 prior test at nine subjects, right?

 356 6 A. Yes.

 356 7 Q. And you thought that was something you had

 356 8 to reach out for and get permission before continuing

 356 9 this study, right?

 356 10 MS. ELIZABETH: Objection; form.

 356 11 BY THE WITNESS:

 356 12 A. That was the lab procedure for me to check

 356 13 in with Elliott.

357:1 - 357:5 Ronald Kieper 12/19/2019

 357 1 Q. You're -- you're protecting the NRR?

 357 2 MS. ELIZABETH: Objection; form, asked and

 357 3 answered.

 357 4 BY THE WITNESS:

 357 5 A. I don't know that.

Re: [357:1-357:5]

Def Obj misstates; argumentative; 

asked (611, 403); foundation (602); 3M 

MIL No. 18

OVERRULED

357:6 - 357:9 Ronald Kieper 12/19/2019

 357 6 BY MR. BUCHANAN:

 357 7 Q. Well, okay. What we know is that an NRR

 357 8 of 20 is not as high as an NRR of 21, right?

 357 9 A. Correct.

357:10 - 357:16 Ronald Kieper 12/19/2019

 357 10 Q. And you thought you had to reach out and

 357 11 get permission from the lab before you could continue

 357 12 in the face of that information, right?

 357 13 MS. ELIZABETH: Objection; form.

 357 14 BY THE WITNESS:

 357 15 A. I was following the lab procedure to check

 357 16 with Elliott before completing a test, yes.

Re: [357:10-357:16]

Def Obj misstates; asked (611, 403); 

3M MIL No. 18

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 94 of 128
Ohlin 2013-04-24

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 95 of 128
Ohlin 2013-04-24 2

Designation Objection Rulings

6:7 - 6:9 Ohlin 2013-04-24

 6 7 Q. Good morning. Please state your full

 6 8 name and spell it for the record.

 6 9 A. Douglas Warren Ohlin. D-O-U-G-L-A-S,

6:10 - 6:10 Ohlin 2013-04-24

 6 10 W-A-R-R-E-N, O-H-L-I-N.

Re: [6:10-6:10]

Pltf Obj No Objection

12:23 - 13:8 Ohlin 2013-04-24

 12 23 Q. So in 1967, the fall, you said you began

 12 24 at Ohio State?

 12 25 A. Uh-huh.

 13 1 Q. And what program was that?

 13 2 A. Speech and hearing science.

 13 3 Q. Did you -- did you graduate from that

 13 4 program?

 13 5 A. Yeah, I got a master's and I followed up

 13 6 with a Ph.D.

 13 7 Q. When did you receive your master's?

 13 8 A. '69.

13:22 - 14:3 Ohlin 2013-04-24

 13 22 Q. During your time studying for your MA,

 13 23 what courses were you taking?

 13 24 A. I don't recall them all, but there were

 13 25 courses in physics, courses in audiology, courses in

 14 1 speech science, phonetics, experimental method.

 14 2 Q. Anything related to hearing protection?

 14 3 A. No.

14:12 - 14:22 Ohlin 2013-04-24

 14 12 Q. Were any related to audiology topics?

 14 13 A. Oh, yeah.

 14 14 Q. And which were those?

 14 15 A. There were courses in oral rehab, there

 14 16 were courses in diagnostic audiology, practicum in

 14 17 audiology.

 14 18 Q. What did your practicum in audiology

 14 19 entail?

 14 20 A. You went over and you worked side by side

 14 21 with a certified audiologist at the Ohio State

 14 22 hospital there.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 96 of 128
Ohlin 2013-04-24 3

15:14 - 16:1 Ohlin 2013-04-24

 15 14 Q. When you -- when you entered Ohio State,

 15 15 did you intend to get a Ph.D.?

 15 16 A. I think I did, yes.

 15 17 Q. After you received your master's in '69,

 15 18 did you have to write a dissertation --

 15 19 A. Yes.

 15 20 Q. -- to get your Ph.D.?

 15 21 What was your dissertation on?

 15 22 A. I was -- I did a dissertation in the area

 15 23 of short-term memory release of proactive inhibition

 15 24 involving stop consonants.

 15 25 Q. Did that dissertation relate to hearing

 16 1 at all?

16:3 - 16:11 Ohlin 2013-04-24

 16 3 A. Anything to do with speech relates to

 16 4 hearing. You can't -- you can't separate the two

 16 5 really.

 16 6 BY MR. HILL:

 16 7 Q. Well, what aspects of your dissertation

 16 8 related to hearing?

 16 9 A. Well, they had to hear the stop

 16 10 consonants, and they had to be able to distinguish

 16 11 between 'em.

Re: [16:3-16:11]

Pltf Obj No Objection

18:17 - 19:7 Ohlin 2013-04-24

 18 17 Q. So did you attend school after receiving

 18 18 your Ph.D. in 1972?

 18 19 A. What school?

 18 20 Q. Any school.

 18 21 A. I -- as a government employee, I attended

 18 22 a lot of training classes, but -- oh, yeah. When I

 18 23 first -- one of the first things I did when I got

 18 24 hired at the agency, they sent me to a course up in

 18 25 Waterville, Maine, that was put on by some of the

 19 1 leading experts in the field of hearing conservation.

 19 2 Q. Now, you say when you got hired at the

 19 3 agency. What agency are you talking about?

 19 4 A. At that time, it was called the U.S. Army

 19 5 Environmental Hygiene Agency.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 97 of 128
Ohlin 2013-04-24 4

 19 6 Q. When were you hired by the U.S. Army --

 19 7 A. July 3rd, 1972.

22:11 - 22:16 Ohlin 2013-04-24

 22 11 Q. So you -- you said that when you joined

 22 12 you joined as an audiologist.

 22 13 A. Yeah.

 22 14 Q. And then in 1987, you believe you were

 22 15 made a program manager.

 22 16 A. Uh-huh.

23:14 - 23:15 Ohlin 2013-04-24

 23 14 Q. How were you trying to prevent hearing

 23 15 loss at the Army?

23:17 - 23:25 Ohlin 2013-04-24

 23 17 A. We were trying to educate people as to

 23 18 what the hazards were. We were trying to get the

 23 19 right hearing protectors on the -- on the individuals;

 23 20 ensure that they knew how to use them. We were

 23 21 monitoring their hearing. We were encouraging

 23 22 engineering control measures out in the field, trying

 23 23 to identify places where it might be feasible. We

 23 24 were monitoring the posting of hazards. We were

 23 25 developing health education materials.

28:12 - 28:13 Ohlin 2013-04-24

 28 12 Q. Were you more involved with creating

 28 13 specifications for hearing protection products?

28:16 - 28:16 Ohlin 2013-04-24

 28 16 A. -- did not create specifications.

37:4 - 37:7 Ohlin 2013-04-24

 37 4 Q. Did you have any role in -- did you have

 37 5 any role in limiting the number of products that would

 37 6 be evaluated by the military for possibly hearing

 37 7 protection use?

37:10 - 37:19 Ohlin 2013-04-24

 37 10 A. As program manager, to a certain extent,

 37 11 yes.

 37 12 BY MR. HILL:

 37 13 Q. And what was that role?

 37 14 A. I was -- I was a gatekeeper in some sense

 37 15 of the word. I was -- I think I am -- I think I -- I

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 98 of 128
Ohlin 2013-04-24 5

 37 16 got two hearing protectors recommended during my

 37 17 tenure: One was the Elvex Quattro and the other was

 37 18 the Combat Arms Earplug. They offered something that

 37 19 was unique, that wasn't already in the system.

47:2 - 47:4 Ohlin 2013-04-24

 47 2 Q. Did you view your job as limiting the

 47 3 number of hearing protection products that would be

 47 4 usable by armed -- armed services personnel?

47:6 - 47:22 Ohlin 2013-04-24

 47 6 A. We tried to keep the set down a little

 47 7 bit for -- unless it provided something unique that

 47 8 wasn't offered, if it wasn't any better -- if it

 47 9 wasn't better than what was already in the system.

 47 10 And we had our reasons for that. We had to provide

 47 11 educational materials for these hearing protectors.

 47 12 If you got a closed set, it's a lot easier to do that,

 47 13 to keep them updated.

 47 14 We were capturing the type of hearing

 47 15 protection used on the audiogram, trying to correlate

 47 16 hearing loss to the type of hearing protection used,

 47 17 and we wanted a -- well, for logistics purposes,

 47 18 having something on hand. We did require them to have

 47 19 all hearing protection, all approved hearing

 47 20 protection, all of it had to be on hand in all sizes.

 47 21 So if that list got too long, it would be logistic --

 47 22 a logistic headache to try to keep.

75:5 - 75:17 Ohlin 2013-04-24

 75 5 A. I went to -- I had two primary sources

 75 6 for technical information: One was Elliott Berger at

 75 7 Aearo and the other was Dr. Paul Michael at Penn

 75 8 State. Early in my career, I depended on them for a

 75 9 lot of technical input.

 75 10 BY MR. HILL:

 75 11 Q. When you say "technical input," what do

 75 12 you mean?

 75 13 A. Things -- things I didn't know.

 75 14 Q. What sorts of things?

 75 15 A. I don't remember --

 75 16 MR. MYERS: Objection to the form.

Re: [75:5-75:17]

Def Obj Incomplete (611, 403)

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 99 of 128
Ohlin 2013-04-24 6

 75 17 A. -- specifics.

75:18 - 76:4 Ohlin 2013-04-24

 75 18 BY MR. HILL:

 75 19 Q. And when did you first meet Elliott

 75 20 Berger?

 75 21 A. I don't recall.

 75 22 Q. But he was still at -- let -- as a

 75 23 threshold matter, the pronunciation of A-E-A-R-O,

 75 24 that's Aearo; is that right? Or how -- is that Aearo

 75 25 Company?

 76 1 A. That sounds right to me. I don't know.

 76 2 Q. Okay. So I may -- I may say Aearo, just

 76 3 'cause that's how I've always thought of it. I mean,

 76 4 I think what you're talking about is Aearo.

76:5 - 76:9 Ohlin 2013-04-24

 76 5 So you're saying that Elliott Berger was

 76 6 at Aearo when you first met him?

 76 7 MR. MYERS: Objection, misstates his

 76 8 testimony.

 76 9 A. Yes.

Re: [76:5-76:9]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

77:9 - 77:18 Ohlin 2013-04-24

 77 9 Q. Other than Mr. Berger, was there anyone

 77 10 else at Aearo who you would speak to?

 77 11 A. No.

 77 12 Q. What about Doug Moses?

 77 13 A. Oh. Yeah. What time frames are -- are

 77 14 we talking about now?

 77 15 Q. Any -- any time frame during your -- your

 77 16 time working for the military.

 77 17 A. Okay. Yeah, Doug -- Doug Moses, I met

 77 18 him at the -- at conferences.

78:2 - 78:2 Ohlin 2013-04-24

 78 2 Q. Anyone else from Aearo?

78:4 - 78:8 Ohlin 2013-04-24

 78 4 A. Did I meet anyone else from Aearo? I

 78 5 think I met Jeff Hamer once or twice.

 78 6 BY MR. HILL:

 78 7 Q. Who's Jeff Hamer?

 78 8 A. He -- he runs a laboratory.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 100 of 128
Ohlin 2013-04-24 7

78:24 - 79:5 Ohlin 2013-04-24

 78 24 Q. What about for 3M? Did you have any

 78 25 interface with anyone from 3M while you were working

 79 1 at the military?

 79 2 A. I met --

 79 3 MR. MYERS: Objection, vague.

 79 4 A. What the hell's his name? Ted Madison at

 79 5 conferences.

Re: [78:24-79:5]

Def Obj Vague (611, 403)

SUSTAINED (403) as to “What the 

hell’s his name?”

OVERRULED in all other respects

79:6 - 79:12 Ohlin 2013-04-24

 79 6 BY MR. HILL:

 79 7 Q. When did you first meet Mr. Madison?

 79 8 A. Don't know. I -- I don't recall.

 79 9 Q. Do you remember what conference you met

 79 10 him at?

 79 11 A. National Hearing Conservation

 79 12 Association.

80:21 - 80:25 Ohlin 2013-04-24

 80 21 Q. Did you ever speak to Mr. Berger about

 80 22 the Combat Arms Earplug?

 80 23 A. Yes.

 80 24 Q. And what did you talk to him about that

 80 25 product?

81:2 - 81:7 Ohlin 2013-04-24

 81 2 A. I don't remember the specifics of the

 81 3 conversation, but it had to do with the filter that

 81 4 was being developed by Dr. Armand Dancer and his

 81 5 colleagues at the French-German Institute.

 81 6 BY MR. HILL:

 81 7 Q. What about the filter?

81:9 - 81:10 Ohlin 2013-04-24

 81 9 A. That they had come up with a -- a filter

 81 10 that could function as a non-linear hearing protector.

82:14 - 82:23 Ohlin 2013-04-24

 82 14 Q. Who first told you about the Combat Arms

 82 15 Earplug?

 82 16 A. I think our guys up at George Garinther,

 82 17 at the Army research lab, who spoke French, and had a

 82 18 working relationship with Dr. Dancer.

 82 19 Q. Is that the person who first raised the

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 101 of 128
Ohlin 2013-04-24 8

 82 20 subject of Dr. Dancer's non-linear filter?

 82 21 THE COURT REPORTER: Which ear filter?

 82 22 MR. HILL: Non-linear.

 82 23 A. I believe so.

84:12 - 84:19 Ohlin 2013-04-24

 84 12 Q. Did you tell Mr. Berger about the filter

 84 13 from Dr. Dancer?

 84 14 A. Dancer.

 84 15 Q. Dancer.

 84 16 A. I believe I did, yes.

 84 17 Q. And when did you tell him that?

 84 18 A. I don't know. Sometime in the early

 84 19 '90s. I -- I don't...

84:20 - 85:7 Ohlin 2013-04-24

 84 20 Q. Why did you tell him that?

 84 21 A. Why did I tell him?

 84 22 MR. MYERS: Objection, vague.

 84 23 A. They had a -- they had a -- a triple

 84 24 flange earplug that had a hole in it, and I had been

 84 25 reading about non-linearity, and I thought that might

 85 1 be enough for protection, and I sent him out to our

 85 2 research guys, and they got back to me and said, "No,

 85 3 that ain't gonna work."

 85 4 So when I heard about the filter, I put

 85 5 the two and two together, and I sent those plugs to

 85 6 Dr. Dancer, and he inserted the filter in those holes

 85 7 and...

Re: [84:20-85:7]

Def Obj Vague (611, 403)

OVERRULED

85:8 - 85:15 Ohlin 2013-04-24

 85 8 BY MR. HILL:

 85 9 Q. Did Mr. Berger know about the --

 85 10 Dr. Dancer's filter?

 85 11 MR. MYERS: Objection, lack of

 85 12 foundation, calls for the witness --

 85 13 A. I don't know --

 85 14 MR. MYERS: -- to speculate.

 85 15 A. -- what he knew.

Re: [85:8-85:15]

Def Obj Foundation (602)

OVERRULED

87:1 - 87:18 Ohlin 2013-04-24

 87 1 Q. Did you later go to work for Aearo?

 87 2 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 102 of 128
Ohlin 2013-04-24 9

 87 3 Q. And when was that?

 87 4 A. First labor invoice was October of 2007.

 87 5 Q. Had you done work previous to October of

 87 6 2007 for them?

 87 7 A. Did I work for 'em?

 87 8 Q. Yes.

 87 9 A. There was no -- I -- I met with them

 87 10 before that, but to -- to sign a contract and -- and

 87 11 be interviewed, but I don't remember --

 87 12 Q. And what --

 87 13 A. -- specific dates.

 87 14 Q. When did you meet with them?

 87 15 A. They approached me and asked me if I was

 87 16 interested.

 87 17 Q. When did they approach you?

 87 18 A. I don't remember the specific dates.

88:4 - 88:6 Ohlin 2013-04-24

 88 4 Q. And who approached you regarding working

 88 5 for Aearo?

 88 6 A. Doug Moses.

88:7 - 88:8 Ohlin 2013-04-24

 88 7 Q. And when did they -- what did they want

 88 8 you to do for Aearo?

Re: [88:7-88:8]

Def Obj Foundation (602); Vague (611, 

403)

SUSTAINED

93:1 - 93:9 Ohlin 2013-04-24

 93 1 Q. Did you ever have any communications with

 93 2 Mr. Moses prior to that about your working for Aearo?

 93 3 MR. MYERS: Objection, vague, irrelevant.

 93 4 A. I don't recall.

 93 5 BY MR. HILL:

 93 6 Q. Are you saying that you didn't or are you

 93 7 saying --

 93 8 A. I don't -- I'm not -- I -- I don't

 93 9 recall.

Re: [93:1-93:9]

Pltf Obj Atty Colloquy (Objection); 

Foundation; Speculative

SUSTAINED

93:10 - 93:19 Ohlin 2013-04-24

 93 10 Q. How did Doug Moses know when you were

 93 11 leaving the military?

 93 12 MR. MYERS: Objection --

 93 13 BY MR. HILL:

 93 14 Q. Working for the military?

Re: [93:10-93:19]

Def Obj Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 103 of 128
Ohlin 2013-04-24 10

 93 15 MR. MYERS: Objection, lack of

 93 16 foundation, calls for speculation, assumes facts not

 93 17 in evidence.

 93 18 A. Probably the big smile on my face. I --

 93 19 I -- I don't know.

94:1 - 94:17 Ohlin 2013-04-24

 94 1 Q. How long was the gap between when you

 94 2 stopped working for the military and began working for

 94 3 Aearo?

 94 4 A. Retired first week of June 2007; the

 94 5 first labor invoice I submitted was for October of --

 94 6 of that year.

 94 7 Q. When did you -- when did you technically

 94 8 get the -- let me take a step back.

 94 9 Did you say that you had signed a

 94 10 contract prior to October?

 94 11 A. Yes.

 94 12 Q. And when was that?

 94 13 A. I don't recall.

 94 14 Q. But sometime between June and October?

 94 15 MR. MYERS: Objection, assumes facts not

 94 16 in evidence.

 94 17 A. Yes.

96:18 - 96:20 Ohlin 2013-04-24

 96 18 Q. So what was the -- what was the scope of

 96 19 your relationship with Aearo when you were hired on in

 96 20 2007?

96:23 - 96:25 Ohlin 2013-04-24

 96 23 A. I was expected to attend conferences,

 96 24 give papers, write articles, review instructional

 96 25 materials for their hearing protectors.

117:13 - 117:17 Ohlin 2013-04-24

 117 13 Q. Dr. Ohlin, direct -- directing your

 117 14 attention to Document 506 again, do you recall sending

 117 15 this e-mail?

 117 16 A. Yes.

 117 17 Q. And were you asked to send that e-mail?

117:19 - 118:1 Ohlin 2013-04-24

 117 19 A. I was asked not to send this specific

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 104 of 128
Ohlin 2013-04-24 11

 117 20 e-mail, but I was asked if I could find out if there

 117 21 was a stock number on the BattlePlug.

 117 22 BY MR. HILL:

 117 23 Q. And who asked you to do that?

 117 24 A. Probably Doug Moses.

 117 25 Q. And did Mr. Moses tell you why he wanted

 118 1 you to do that?

118:2 - 118:8 Ohlin 2013-04-24

 118 2 A. I think we both shared a concern that the

 118 3 corporate people at 3M had to know the competition out

 118 4 there was real.

 118 5 Q. Which corporate people are you referring

 118 6 to?

 118 7 A. I don't know, but -- I don't know the

 118 8 names of those guys. They're way above me.

118:9 - 118:15 Ohlin 2013-04-24

 118 9 Q. Why were you reaching out to get the

 118 10 stock number information rather than Doug himself?

 118 11 MR. MYERS: Objection, vague.

 118 12 A. I was his -- his gopher for this kind of

 118 13 stuff. I -- I assumed that he had -- he had other

 118 14 things to do. He thought I might be able to get it

 118 15 quicker.

Re: [118:9-118:15]

Def Obj Vague (611, 403)

OVERRULED

119:5 - 119:23 Ohlin 2013-04-24

 119 5 Q. And that first line, when it says, "I'm

 119 6 trying to light some fires under the 3M Aearo folks to

 119 7 make some improvements to the Combat Arms Earplug,"

 119 8 what -- what did you mean by that?

 119 9 A. Well, first of all, this company is

 119 10 committed to always making improvements. This was a

 119 11 timing issue. They had come up with a innovative way

 119 12 to reduce the NRR in the non-linear mode without

 119 13 sacrificing protection, which meant that the plug

 119 14 would be more acoustically transparent in the

 119 15 non-linear mode and improve detection.

 119 16 However, it looked like it would add a

 119 17 few months to the development of the next version, and

 119 18 we thought that some of the decision-makers were more

 119 19 interested in meeting a deadline than anything else,

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 105 of 128
Ohlin 2013-04-24 12

 119 20 and if we didn't get this improvement in there, it

 119 21 would probably be another couple of years --

 119 22 Q. What --

 119 23 A. -- before we got into the next version.

119:24 - 120:1 Ohlin 2013-04-24

 119 24 Q. What was the improvement?

 119 25 A. As I described to you, it was a method to

 120 1 reduce the attenuation in the non-linear mode.

Re: [119:24-120:1]

Pltf Obj Foundation; 403

DEFER RULING

126:23 - 126:24 Ohlin 2013-04-24

 126 23 A. I don't know. I didn't -- I didn't -- I

 126 24 don't control the specifications.

Re: [126:23-126:24]

Def Obj Incomplete (611, 403); 

Relevance (401, 402)

DEFER RULING

126:25 - 127:19 Ohlin 2013-04-24

 126 25 Q. So let's talk more about that

 127 1 specification process. You said that you sometimes

 127 2 acted as a gatekeeper, in terms of what products were

 127 3 going to be approved; is that correct?

 127 4 MR. MYERS: Objection to the form and to

 127 5 the relevance of the entire line of inquiry.

 127 6 A. I act as gatekeeper as to what would be

 127 7 recommended. I didn't make decisions, per se. In my

 127 8 position, you made recommendations.

 127 9 BY MR. HILL:

 127 10 Q. And were those recommendations given to

 127 11 the people who wrote the specifications?

 127 12 MR. MYERS: Object to the form.

 127 13 A. Not directly, no.

 127 14 BY MR. HILL:

 127 15 Q. Who were the recommendations given to?

 127 16 MR. MYERS: Object to the form.

 127 17 A. Recommendations would be passed up the

 127 18 line through my -- through my superiors to medical

 127 19 logistics folks.

Re: [126:25-127:19]

Def Obj Relevance (401, 402)

DEFER RULING

130:6 - 130:23 Ohlin 2013-04-24

 130 6 Q. What input did you have into the Combat

 130 7 Arms Earplug specifications?

 130 8 MR. MYERS: Objection, assumes facts not

 130 9 in evidence.

 130 10 A. I wanted it to be -- I wanted to have a

 130 11 linear and non-linear mode so it could be used for

Re: [130:6-130:23]

Def Obj Vague (611, 403); Assumes 

facts not in evidence (611, 403)

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 106 of 128
Ohlin 2013-04-24 13

 130 12 steady-state noise as well as input noise.

 130 13 BY MR. HILL:

 130 14 Q. Did you write those specs?

 130 15 A. No.

 130 16 Q. Did you recommend that there be specs

 130 17 issued for those products?

 130 18 MR. MYERS: Objection, vague.

 130 19 A. I don't remember.

 130 20 BY MR. HILL:

 130 21 Q. So you don't --

 130 22 A. I don't -- I don't recall a specification

 130 23 for the Combat Arms Earplug.

130:24 - 131:5 Ohlin 2013-04-24

 130 24 Q. Did you recommend that the Combat Arms

 130 25 Earplug be approved for military use?

 131 1 A. Yes.

 131 2 Q. And when was that?

 131 3 A. I don't know the time frame, but as chair

 131 4 of the DOD working group, I put it on the table and

 131 5 the group recommended it.

133:16 - 133:22 Ohlin 2013-04-24

 133 16 Q. And did you say you're not sure if there

 133 17 are specs covering the Combat Arms Earplug? I -- I

 133 18 wasn't quite clear on what you were telling me.

 133 19 A. I don't remember seeing any specs on

 133 20 that, to tell you the truth. There may be a product

 133 21 description out there, something like that, but I

 133 22 don't remember specification.

135:22 - 136:2 Ohlin 2013-04-24

 135 22 Q. What about for non-linear plugs?

 135 23 MR. MYERS: Same objection, also lacks

 135 24 foundation.

 135 25 A. Non-linear plugs, as far as we knew, the

 136 1 Combat Arms Earplug was the best game in town. It was

 136 2 the only one that had data on human subjects.

Re: [135:22-136:2]

Def Obj Foundation (602); Asked (611, 

403)

OVERRULED

136:19 - 137:8 Ohlin 2013-04-24

 136 19 Q. When you say "the overpressure study,"

 136 20 what are you talking about?

 136 21 A. We -- they were getting weapons into the

Re: [136:19-137:8]

Pltf Obj 401; 403 (If played; add 136:4-

136:17)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 107 of 128
Ohlin 2013-04-24 14

 136 22 system that had very high overpressure levels, and

 136 23 they wanted more bang for their buck, but they were

 136 24 getting up to levels where we were concerned about

 136 25 gas-containing organs, like the lungs, and we were

 137 1 getting into gray areas that we really didn't know

 137 2 could we protect people, could we protect people's

 137 3 hearing, could -- could we do damage to these

 137 4 gas-containing organs, and they wanted these weapon

 137 5 systems into the system, and they wanted to determine

 137 6 whether or not it was -- it was feasible. You didn't

 137 7 want -- you want to be hurting the enemy, not your own

 137 8 troops with your weapon systems.

137:9 - 137:14 Ohlin 2013-04-24

 137 9 Q. But this testing stopped at some point?

 137 10 A. Yeah.

 137 11 Q. And what -- when was that?

 137 12 A. Around 1993, time frame.

 137 13 Q. And Combat Arms Earplugs were tested

 137 14 before that?

137:16 - 137:16 Ohlin 2013-04-24

 137 16 A. Yeah, around that time. Yes.

139:20 - 140:20 Ohlin 2013-04-24

 139 20 Q. You say you're not a lab rat. Were there

 139 21 technical people you consulted on these kinds of

 139 22 issues?

 139 23 MR. MYERS: Objection, vague.

 139 24 

 139 25 BY MR. HILL:

 140 1 Q. Let's say with respect to the human

 140 2 testing information.

 140 3 A. Well --

 140 4 MR. MYERS: Object to the form.

 140 5 A. -- I didn't have input into the testing

 140 6 protocol. I only provided the product. It was up to

 140 7 them to develop the protocol and to -- and to

 140 8 implement it.

 140 9 BY MR. HILL:

 140 10 Q. But you had input into approving products

 140 11 based on that protocol; is that correct?

Re: [139:20-140:20]

Def Obj Vague (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 108 of 128
Ohlin 2013-04-24 15

 140 12 MR. MYERS: Objection, vague.

 140 13 A. I approved Combat Arms Earplug back then

 140 14 'cause it was the best game in town. It was really

 140 15 the only game -- well, that's not true, but there was

 140 16 an Ear Defender British plug that had been evaluated

 140 17 by the French that really wasn't that good. But at

 140 18 the time that the Combat Arms Earplug was recommended,

 140 19 it was the best game in town. It might have been the

 140 20 only one, other than that Ear Defender.

140:21 - 140:24 Ohlin 2013-04-24

 140 21 BY MR. HILL:

 140 22 Q. So when was the Combat Arms Earplug

 140 23 recommended?

 140 24 A. Sometime in the '90s.

140:25 - 141:3 Ohlin 2013-04-24

 140 25 Q. Was this after you told Mr. Berger about

 141 1 the French patent related to non-linear filtration of

 141 2 sound?

 141 3 A. Yeah.

141:1 - 141:3 Ohlin 2013-04-24

 141 1 the French patent related to non-linear filtration of

 141 2 sound?

 141 3 A. Yeah.

141:4 - 141:7 Ohlin 2013-04-24

 141 4 Q. And you suggested that he put that filter

 141 5 into the earplug; is that correct?

 141 6 MR. MYERS: Objection, misstates the

 141 7 testimony.

Re: [141:4-141:7]

Def Obj Misstates (611, 403)

OVERRULED

141:8 - 141:9 Ohlin 2013-04-24

 141 8 A. Who we talking about?

 141 9 BY MR. HILL:

141:10 - 142:8 Ohlin 2013-04-24

 141 10 Q. My understanding is that Aearo had some

 141 11 sort of a tip?

 141 12 A. Yes.

 141 13 Q. A tip, and you said something about

 141 14 putting Mr. Dancer -- I'm not a French speaker --

 141 15 A. That's right.

 141 16 Q. -- Mr. Dancer, his filter into that

Re: [141:10-142:8]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 109 of 128
Ohlin 2013-04-24 16

 141 17 earplug; is that --

 141 18 A. Yes.

 141 19 Q. -- correct?

 141 20 A. Yes.

 141 21 Q. And was that done?

 141 22 A. Yes.

 141 23 Q. And did that became the Combat Arms

 141 24 Earplug?

 141 25 A. I think there -- there was a French

 142 1 version of the Combat Arms Earplug under a different

 142 2 manufacturer. Might have been Moldex, I don't know.

 142 3 I don't know if it was Moldex or it was -- what's the

 142 4 other one? Anyway, they had a quality control problem

 142 5 with it. But it was not -- the first Combat Arms

 142 6 Earplug put out there with that filter was not with an

 142 7 Aearo product. The French put it out with some other

 142 8 manufacturer.

145:9 - 145:13 Ohlin 2013-04-24

 145 9 A. The only other plug I ever considered for

 145 10 -- for the Combat Arms Earplug was the Elvex Quattro.

 145 11 I thought it was a -- it was a superior pre-formed

 145 12 earplug for a lot of reasons: comfort, ease, ease of

 145 13 insertion, et cetera, but it didn't have a hole in it.

Re: [145:9-145:13]

Def Obj Incomplete (611, 403)

OVERRULED

145:14 - 145:17 Ohlin 2013-04-24

 145 14 BY MR. HILL:

 145 15 Q. Could they have put a hole in it?

 145 16 MR. MYERS: Objection, lack --

 145 17 A. I don't know --

Re: [145:14-145:17]

Def Obj Foundation (602); Relevance 

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

OVERRULED

146:8 - 146:13 Ohlin 2013-04-24

 146 8 A. I didn't think they would do it. Since

 146 9 Aearo already had this plug with a hole in it, I

 146 10 thought it was easier to deal with someone who already

 146 11 had the -- had the product, and they asked for

 146 12 somebody to modify their product, and it might not

 146 13 work out for 'em.

Re: [146:8-146:13]

Def Obj Foundation (602); Relevance 

(401, 402)

OVERRULED

148:20 - 149:13 Ohlin 2013-04-24

 148 20 Q. And did you take any steps to try to have

 148 21 other vendors create other non-linear plugs?

 148 22 MR. MYERS: Objection, vague, irrelevant.

Re: [148:20-149:13]

Def Obj Foundation (602); Relevance 

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

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 110 of 128
Ohlin 2013-04-24 17

 148 23 A. No.

 148 24 

 148 25 BY MR. HILL:

 149 1 Q. Why not?

 149 2 MR. MYERS: Irrelevant, objection.

 149 3 A. Why not? Again, I didn't want to put a

 149 4 vendor in the position of modifying a product and

 149 5 having it not work out for 'em or...

 149 6 BY MR. HILL:

 149 7 Q. But didn't Aearo modify its product by

 149 8 adding the French filter?

 149 9 MR. MYERS: Objection, calls for

 149 10 speculation, lack of foundation.

 149 11 A. All they had to do was insert the filter.

 149 12 The hole was -- was already there. I was looking for

 149 13 the most painless way to get this done.

151:2 - 151:2 Ohlin 2013-04-24

 151 2 Q. Was Elliott Berger your friend?

151:8 - 151:13 Ohlin 2013-04-24

 151 8 A. I consider him like I do a lot of -- like

 151 9 Meade Killion, like other people like them, colleagues

 151 10 that I highly value.

 151 11 BY MR. HILL:

 151 12 Q. Did you value them more than colleagues

 151 13 at other vendors?

151:16 - 151:21 Ohlin 2013-04-24

 151 16 A. You tend to be drawn to people who are

 151 17 easy to work with and who listen to you. That's the

 151 18 best way I can answer that one.

 151 19 BY MR. HILL:

 151 20 Q. Did you want to help Elliott Berger when

 151 21 you told him about the ISL filter?

151:24 - 152:4 Ohlin 2013-04-24

 151 24 A. I -- I wasn't interested in helping

 151 25 Elliott Berger. I was interested in protecting the

 152 1 troops.

 152 2 BY MR. HILL:

 152 3 Q. But you only reached out to Elliott

 152 4 Berger, is that correct, about this new ISL filter --

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 111 of 128
Ohlin 2013-04-24 18

152:7 - 152:7 Ohlin 2013-04-24

 152 7 Q. -- outside of the military?

152:14 - 152:15 Ohlin 2013-04-24

 152 14 Q. That's true?

 152 15 A. Yeah.

167:12 - 167:22 Ohlin 2013-04-24

 167 12 Q. Has anyone ever said that you came up

 167 13 with the idea for the Combat Arms --

 167 14 A. It wasn't --

 167 15 Q. -- product?

 167 16 A. It wasn't me.

 167 17 THE WITNESS: I'm sorry. Go ahead.

 167 18 MR. MYERS: Objection, lack of

 167 19 foundation.

 167 20 A. That -- that was developed at the

 167 21 French-German Institute by Dr. Dancer and his

 167 22 colleagues, not me.

Re: [167:12-167:22]

Def Obj Foundation (602)

OVERRULED

168:17 - 169:4 Ohlin 2013-04-24

 168 17 Q. Has anyone at 3M or Aearo ever said that

 168 18 your specifications have been responsible for the

 168 19 Combat Arms business?

 168 20 MR. MYERS: Objection, lack of

 168 21 foundation, calls for facts not in evidence.

 168 22 A. I don't know of any specification for the

 168 23 Combat Arms Earplug.

 168 24 

 168 25 BY MR. HILL:

 169 1 Q. Any product descriptions?

 169 2 MR. MYERS: Same objections, calls for

 169 3 speculation.

 169 4 A. I don't recall one.

Re: [168:17-169:4]

Def Obj Foundation (602)

OVERRULED

171:2 - 172:13 Ohlin 2013-04-24

 171 2 Q. Did you have any discussions concerning

 171 3 your time working for the military, while consulting

 171 4 for 3M or Aearo, regarding earplug products?

 171 5 MR. MYERS: Objection, vague and

 171 6 ambiguous.

 171 7 A. That's pretty open-ended. I -- I don't

 171 8 -- I don't know where to begin.

Re: [171:2-172:13]

Def Obj Vague (611, 403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 112 of 128
Ohlin 2013-04-24 19

 171 9 BY MR. HILL:

 171 10 Q. Did you ever -- did you talk about the

 171 11 Combat Ear -- Arms Earplug?

 171 12 MR. MYERS: Objection, vague and

 171 13 ambiguous.

 171 14 A. After I --

 171 15 BY MR. HILL:

 171 16 Q. Yes.

 171 17 A. -- retired? Yes.

 171 18 Q. And what did you talk about with respect

 171 19 to your time in the military about the Combat Arms

 171 20 Earplug?

 171 21 MR. MYERS: Objection, vague and

 171 22 ambiguous, calls for a narrative.

 171 23 A. My focus, what I've been trying to push

 171 24 during my time at Aearo and 3M, is more of a focus on

 171 25 the ergonomic issues of ease of use, comfort,

 172 1 compatibility with other headgear, communication.

 172 2 BY MR. HILL:

 172 3 Q. And how did that relate to your time with

 172 4 the military?

 172 5 A. Well --

 172 6 MR. MYERS: Objection, vague and

 172 7 ambiguous.

 172 8 A. -- feedback you get from the troops.

 172 9 Their concern usually isn't whether this thing is

 172 10 protecting me or not. They want it to be comfortable.

 172 11 They want it to be easy to use. They don't want it to

 172 12 interfere with their situational awareness and their

 172 13 communication ability.

173:22 - 173:24 Ohlin 2013-04-24

 173 22 Q. What does NRR stand for?

 173 23 A. Noise reduction rating.

 173 24 Q. What is a noise reduction rating?

174:1 - 174:7 Ohlin 2013-04-24

 174 1 A. It is a number derived from testing a

 174 2 hearing protector by ANSI standard. That's supposed

 174 3 to be a measure of its acoustic protection.

 174 4 BY MR. HILL:

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 113 of 128
Ohlin 2013-04-24 20

 174 5 Q. Is a higher NRR always better?

 174 6 A. No.

 174 7 Q. When is it not better?

174:9 - 174:15 Ohlin 2013-04-24

 174 9 A. You don't want to overprotect people.

 174 10 You create -- excuse me. You -- you create

 174 11 communication issues.

 174 12 BY MR. HILL:

 174 13 Q. Is a higher NRR sometimes better than a

 174 14 lower NRR?

 174 15 A. Yes.

175:2 - 176:23 Ohlin 2013-04-24

 175 2 Q. Under what circumstances is a higher NRR

 175 3 better?

 175 4 MR. MYERS: Same objection.

 175 5 A. Extreme noise exposures.

 175 6 BY MR. HILL:

 175 7 Q. When you say "extreme noise exposures,"

 175 8 what do you mean?

 175 9 A. Well, that's a relative term. But once

 175 10 you start getting over, say, a hundred dBA, I think

 175 11 you want a higher-performing earplug.

 175 12 Q. And what's a dBA?

 175 13 A. It's a noise level.

 175 14 Q. I mean, what does dBA stand for?

 175 15 A. Decibels under the A-weighted network.

 175 16 Q. Are gunshots an example of extreme noise?

 175 17 A. Yes, but it's an entirely different

 175 18 animal.

 175 19 Q. And when you say "an entirely different

 175 20 animal," what do you mean?

 175 21 A. It's a different mode of damage to the

 175 22 ear. It's more immediate. It's more of a mechanical

 175 23 mode of damage. In some ways, depending on the type

 175 24 of weapons fired, it's easy to protect yourself from

 175 25 it, but it's also very unforgiving. You can get more

 176 1 hearing loss in one afternoon on a firing range than

 176 2 years of listening to some steady-state noise.

 176 3 Q. Do you know if NRRs matter when products

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 114 of 128
Ohlin 2013-04-24 21

 176 4 are sold to the market?

 176 5 MR. MYERS: Objection, vague.

 176 6 A. Unfortunately, I think there's too much

 176 7 of a focus on the NRR. In my view, it's the cover on

 176 8 the book. I would be paying more attention to those

 176 9 ergonomic issues that I mentioned before. Helps you

 176 10 ensure that people wear 'em right.

 176 11 BY MR. HILL:

 176 12 Q. But when you say it's too much focus, is

 176 13 it a lot -- does the industry place a lot of focus on

 176 14 NRR?

 176 15 MR. MYERS: Objection, lack of

 176 16 foundation.

 176 17 A. I think the customer does more than the

 176 18 -- the industry is just responding to the customer.

 176 19 BY MR. HILL:

 176 20 Q. And in what way does a customer place a

 176 21 lot of weight on NRR?

 176 22 A. Well, they think the higher NRR is -- is

 176 23 always better.

180:21 - 181:22 Ohlin 2013-04-24

 180 21 Q. Do all Combat Arms earplugs have the same

 180 22 fit instructions, do you know?

 180 23 A. It depends on the version.

 180 24 Q. Let's start with the first version. Do

 180 25 you know?

 181 1 A. Generally -- can't speak in specifics,

 181 2 but generally, you know you got it in right if you tug

 181 3 on the plug and there's tension and you get a slight

 181 4 occlusion effect. That is, when you talk, your own

 181 5 voice sounds and feels low tone, like you're talking

 181 6 inside of a barrel.

 181 7 Q. Did that instruction involve a large size

 181 8 or small size or anything like that?

 181 9 A. That -- that's not relevant to size, per

 181 10 se.

 181 11 Q. What about the second version? Did --

 181 12 did those plugs all have the same fitting

 181 13 instructions?

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 115 of 128
Ohlin 2013-04-24 22

 181 14 A. No. We had different -- different

 181 15 procedures from -- going from linear to non-linear.

 181 16 The second version a lot of people aren't -- even

 181 17 within the company forget this. The first version was

 181 18 a single-sided, three- -- three-flange plug. The

 181 19 second version was a double-ended plug with -- it was

 181 20 olive drab and yellow, and one plug was for

 181 21 steady-state noise and the other plug was for the

 181 22 non-linear mode for weapons fire.

182:14 - 182:17 Ohlin 2013-04-24

 182 14 Q. Have you ever advised anyone at 3M that

 182 15 you were worried that Elliott Berger was being

 182 16 pressured to increase NRR on a product?

 182 17 A. Yes.

182:22 - 183:11 Ohlin 2013-04-24

 182 22 BY MR. HILL:

 182 23 Q. -- when was that?

 182 24 A. I don't know when it was, but it was when

 182 25 -- when they tested the new size plug and they got the

 183 1 NRR, got such a lower NRR with the same earplug, I

 183 2 heard there was a lot concern about that. What

 183 3 happened?

 183 4 Q. Who did you report your concern to at 3M?

 183 5 A. Doug Moses.

 183 6 Q. Anyone else?

 183 7 A. I don't recall anybody else, no.

 183 8 Q. Did you have any conversations with

 183 9 Mr. Moses about this?

 183 10 A. Probably. I don't recall the, you know,

 183 11 exact conversation.

183:12 - 183:21 Ohlin 2013-04-24

 183 12 Q. Do you know if Mr. Moses took any action

 183 13 as a result of your e-mail?

 183 14 MR. MYERS: Objection, lack of

 183 15 foundation.

 183 16 A. I think they passed on my -- my

 183 17 suggestion to fit smaller.

 183 18 BY MR. HILL:

 183 19 Q. Did they pass on anything regarding your

Re: [183:12-183:21]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 116 of 128
Ohlin 2013-04-24 23

 183 20 concern that Mr. Berger was being pressured to

 183 21 increase NRRs?

185:13 - 185:21 Ohlin 2013-04-24

 185 13 (Ohlin Exhibit 507 was marked for

 185 14 purposes of identification.)

 185 15 BY MR. HILL:

 185 16 Q. Dr. Ohlin, I'm setting in front of you

 185 17 Exhibit No. 507. Please take a moment to look at

 185 18 this.

 185 19 Do you recognize this document?

 185 20 A. Yes.

 185 21 Q. What is it?

185:23 - 185:24 Ohlin 2013-04-24

 185 23 A. It's an e-mail message from me to Doug

 185 24 Moses.

186:1 - 186:3 Ohlin 2013-04-24

 186 1 Q. And why did you send this e-mail?

 186 2 A. Why?

 186 3 Q. Yes.

186:5 - 187:16 Ohlin 2013-04-24

 186 5 A. I didn't know if Doug was privy to this

 186 6 history, and I wanted to make sure that -- since I

 186 7 heard all this concern about the lower NRR, I wanted

 186 8 to make sure that they weren't putting pressure on

 186 9 him.

 186 10 BY MR. HILL:

 186 11 Q. What -- what history are you talking

 186 12 about?

 186 13 A. I didn't know -- as you can see there, I

 186 14 didn't know a lot about it, but I know that the -- for

 186 15 some reason, EPA fined that lab -- fined the E.A.R.

 186 16 lab for some discrepancy over how they changed their

 186 17 NRR or something. I didn't have any details on it.

 186 18 Q. Do you see the second line in the first

 186 19 paragraph where you say, "There has always been

 186 20 intense pressure on Elliott to match the attenuation

 186 21 values the Penn State Lab is able to produce"?

 186 22 A. Yes.

 186 23 Q. And what do you mean by that?

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 117 of 128
Ohlin 2013-04-24 24

 186 24 A. Exactly what I said. If -- if one

 186 25 laboratory is getting higher NSNs (sic) with the same

 187 1 product, higher -- higher NRRs with the same product

 187 2 than you are, then somebody wants -- wants to know

 187 3 why.

 187 4 Q. In the second paragraph, do you see the

 187 5 line that says, "We are putting pressure on Elliott to

 187 6 come up with a higher NRR for this new version of the

 187 7 Combat Arms Earplug"? Then you say, "We could be

 187 8 setting Aearo up for another fine."

 187 9 Do you see those lines?

 187 10 A. Yes.

 187 11 Q. What did you mean by that?

 187 12 A. I didn't -- I didn't want them to put him

 187 13 in a position -- which I don't think he would have

 187 14 done anyway -- in a position to repeat what happened

 187 15 before, whatever that was, and I didn't know what it

 187 16 was.

187:17 - 188:1 Ohlin 2013-04-24

 187 17 Q. Now, you're saying that we are putting

 187 18 pressure on Elliott to come up with a higher NRR.

 187 19 What do you mean by that?

 187 20 MR. MYERS: Objection, asked and -- just

 187 21 answered.

 187 22 A. I think we're looking for explanations.

 187 23 I don't know if "pressure" is the right word there,

 187 24 but what's going on? Why, you know? And my

 187 25 explanation was it's -- they're dealing with a sized

 188 1 earplug, and they're fitting it too large.

Re: [187:17-188:1]

Def Obj Asked (611, 403)

OVERRULED

188:2 - 188:5 Ohlin 2013-04-24

 188 2 BY MR. HILL:

 188 3 Q. But you're not really talking about the

 188 4 fitting of this earplug in this e-mail, are you?

 188 5 A. No.

188:6 - 188:11 Ohlin 2013-04-24

 188 6 Q. What are you talking about in this

 188 7 e-mail?

 188 8 MR. MYERS: Objection, vague, asked and

 188 9 answered.

Re: [188:6-188:11]

Def Obj Asked (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 118 of 128
Ohlin 2013-04-24 25

 188 10 A. What I'm talking about is if anybody is

 188 11 putting pressure on him, for them to back off.

188:12 - 188:18 Ohlin 2013-04-24

 188 12 BY MR. HILL:

 188 13 Q. Now, you say -- you say if we are putting

 188 14 pressure. Do you see in that middle paragraph where

 188 15 it says, "We are putting pressure on Elliott to come

 188 16 up with a higher NRR for this new version of the

 188 17 Combat Arms Earplug"?

 188 18 A. Uh-huh.

188:19 - 188:23 Ohlin 2013-04-24

 188 19 Q. And what did you mean by that line?

 188 20 MR. MYERS: Objection, asked and

 188 21 answered.

 188 22 A. We wanted him to go back and try to

 188 23 figure out why there was a difference.

Re: [188:19-188:23]

Def Obj Asked (611, 403)

OVERRULED

191:18 - 192:2 Ohlin 2013-04-24

 191 18 Q. So when you say that we are putting

 191 19 pressure on Elliott to come up with a higher NRR for

 191 20 this new version of the Combat Arms Earplug, were you

 191 21 referring to the change in fitting protocol?

 191 22 MR. MYERS: Objection to form, asked and

 191 23 answered.

 191 24 A. And I said before, I think we were

 191 25 looking for an explanation of why it was -- why it was

 192 1 lower, and this was the explanation that I provided.

 192 2 I thought they were fitting them too large.

Re: [191:18-192:2]

Def Obj Asked (611, 403)

OVERRULED

192:4 - 192:8 Ohlin 2013-04-24

 192 4 Q. But you were trying to get the NRR

 192 5 increased; is that correct?

 192 6 MR. MYERS: Objection, lack of

 192 7 foundation, misstates his testimony.

 192 8 A. Sure.

Re: [192:4-192:8]

Def Obj Misstates (611, 403)

OVERRULED

192:9 - 192:23 Ohlin 2013-04-24

 192 9 BY MR. HILL:

 192 10 Q. And why is that?

 192 11 MR. MYERS: Objection, vague.

 192 12 A. People would be curious as to why the

 192 13 same -- we're getting a lower NRR with the same

Re: [192:9-192:23]

Def Obj Vague (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 119 of 128
Ohlin 2013-04-24 26

 192 14 earplug, that we had somehow degraded this, you know.

 192 15 It may raise some eyebrows out there among other

 192 16 distributors, end users, that we might have done

 192 17 something wrong here with this earplug.

 192 18 BY MR. HILL:

 192 19 Q. Have you seen other earplugs where the

 192 20 fit protocol was changed after receiving one NRR to

 192 21 get another NRR?

 192 22 MR. MYERS: Objection to the form.

 192 23 A. I don't recall that, no.

196:9 - 196:13 Ohlin 2013-04-24

 196 9 (Ohlin Exhibit 510 was marked for

 196 10 purposes of identification.)

 196 11 BY MR. HILL:

 196 12 Q. Please take a look at this -- this

 196 13 document, which has been marked as Exhibit No. 510.

196:19 - 196:22 Ohlin 2013-04-24

 196 19 Q. Do you -- what is this document?

 196 20 A. It's an e-mail from me to Eric Fallon.

 196 21 Q. And why did you send that e-mail to

 196 22 Mr. Fallon?

196:24 - 197:18 Ohlin 2013-04-24

 196 24 A. Keep him up to date on what was going on,

 196 25 as far as the NRR was concerned.

 197 1 BY MR. HILL:

 197 2 Q. You see that it says, "You may have

 197 3 noticed that the NRR for the closed position is 2 dB

 197 4 less than the previous version."

 197 5 What does that mean?

 197 6 A. It was 2 dB less.

 197 7 Q. For which product?

 197 8 A. When it went from version -- when they

 197 9 went to the single side to the sized plug.

 197 10 Q. Is that Version 3 to 4?

 197 11 A. I think it's going from 2 to 3, I think.

 197 12 Q. But you saying we're going from the

 197 13 two-ended version to the one-ended size plug?

 197 14 A. Correct.

 197 15 Q. And you say, "I'm told it was directly

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 120 of 128
Ohlin 2013-04-24 27

 197 16 related to the protocol that Aearo uses for the sized

 197 17 versions of an earplug."

 197 18 What does that mean?

197:20 - 197:25 Ohlin 2013-04-24

 197 20 A. I think I was trying to provide an

 197 21 explanation of why it was 2 dB less than the previous

 197 22 version.

 197 23 BY MR. HILL:

 197 24 Q. Why did you feel -- why did you provide

 197 25 that explanation?

198:3 - 198:13 Ohlin 2013-04-24

 198 3 A. It looked like it deserved an -- an

 198 4 explanation when the NRR came -- came in less. I was

 198 5 -- frankly, I was expecting the NRR to go up with a

 198 6 sized device, and I was a little bit surprised that it

 198 7 went down.

 198 8 BY MR. HILL:

 198 9 Q. Now, you say, "They let the subject

 198 10 choose the most comfortable size for them." And then

 198 11 colon, "The NRR for the closed version stayed the

 198 12 same."

 198 13 A. Uh-huh.

223:2 - 223:4 Ohlin 2013-04-24

 223 2 Q. We're handing you -- I'm handing you

 223 3 Document No. Exhibit 517. Please take a moment to

 223 4 look at this document.

223:9 - 223:9 Ohlin 2013-04-24

 223 9 Q. And what is this document?

223:12 - 223:13 Ohlin 2013-04-24

 223 12 A. They are a series of e-mails pertaining

 223 13 to the New Dynamics contract protest.

223:22 - 224:4 Ohlin 2013-04-24

 223 22 Q. Now, you were a recipient of this

 223 23 document --

 223 24 A. Yes.

 223 25 Q. -- is that correct?

 224 1 A. Yes.

 224 2 Q. Do you see where it says on page

 224 3 3M00030023 --

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 121 of 128
Ohlin 2013-04-24 28

 224 4 A. Uh-huh.

224:5 - 224:10 Ohlin 2013-04-24

 224 5 Q. -- "Doug, please put a few sentences

 224 6 together at your earliest convenience and send it to

 224 7 me"? And above that, it says, "A statement re human

 224 8 test protocol should be drafted by Doug Ohlin and

 224 9 approved by Elliott Berger."

 224 10 What does that refer to?

224:13 - 225:6 Ohlin 2013-04-24

 224 13 A. I don't know what they were referring to

 224 14 'cause we never did develop any test protocol. I

 224 15 think what they were asking for, and what I later

 224 16 provided, was just what human testing was done with

 224 17 the plug, but we never developed a test protocol.

 224 18 BY MR. HILL:

 224 19 Q. Are you -- does this refer to the human

 224 20 testing that you said was discontinued in 1993?

 224 21 A. Correct.

 224 22 Q. Did you draft such a statement?

 224 23 A. Yes.

 224 24 Q. And what did the statement say?

 224 25 A. The statement went into the testing and

 225 1 results that were done out at White Sands and also

 225 2 referred to the localization testing that the Air

 225 3 Force did with the Combat Arms Earplug.

 225 4 Q. And what was the purpose of your writing

 225 5 that statement?

 225 6 A. They asked me to.

225:7 - 225:16 Ohlin 2013-04-24

 225 7 Q. And what did they do with that statement?

 225 8 A. I think they --

 225 9 MR. MYERS: Objection, vague.

 225 10 A. It was used as part of their protest.

 225 11 BY MR. HILL:

 225 12 Q. And what was the purpose of that protest?

 225 13 MR. MYERS: Objection, lack of

 225 14 foundation.

 225 15 A. I think they were trying to contest the

 225 16 contract that had just been awarded to Moldex.

Re: [225:7-225:16]

Def Obj Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 122 of 128
Ohlin 2013-04-24 29

226:3 - 226:12 Ohlin 2013-04-24

 226 3 (Ohlin Exhibit 518 was marked for

 226 4 purposes of identification.)

 226 5 BY MR. HILL:

 226 6 Q. Dr. Ohlin, in front of you now is

 226 7 Document No. Exhibit 518. Do you recognize this

 226 8 document?

 226 9 A. Yes.

 226 10 Q. What is it?

 226 11 A. It was me giving Doug Moses an update as

 226 12 to the phone call I got from Colonel Grantham.

226:13 - 227:8 Ohlin 2013-04-24

 226 13 Q. And what kinds of -- why were you

 226 14 communicating with Colonel Grantham?

 226 15 A. She had contacted me for a little history

 226 16 that I might be able to help her with.

 226 17 Q. On what history?

 226 18 A. On how the plug got into the system, why

 226 19 it was unique, why the Army limits the list of

 226 20 approved hearing protectors, and some key references

 226 21 to use for the justification for the adoption of the

 226 22 -- adoption of the plug.

 226 23 Q. And which plug are we talking about?

 226 24 A. The Combat Arms Earplug.

 226 25 Q. And it looks like one of the key

 227 1 references to justify its use is Elliott's study on

 227 2 the non-linear devices. You see that in the second

 227 3 paragraph?

 227 4 A. Yeah, he -- there was an article. He --

 227 5 he evaluated six -- five or six non-linear plugs that

 227 6 were out there, and the Combat Arms Earplug

 227 7 demonstrated the best non-linearity of the five or six

 227 8 that he evaluated.

227:16 - 227:18 Ohlin 2013-04-24

 227 16 Q. The Dan Johnson overpressure study, did

 227 17 that refer to that testing that ended in 1993?

 227 18 A. Correct.

228:11 - 228:20 Ohlin 2013-04-24

 228 11 Q. Do you see the next line that's -- this

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Ohlin 2013-04-24 30

 228 12 next paragraph, it says, "The Army's problem is that

 228 13 there is no formal system for evaluating new hearing

 228 14 protectors. For years, I functioned as the gatekeeper

 228 15 to keep the list manageable"?

 228 16 A. Uh-huh.

 228 17 Q. You see that? What did you mean by that?

 228 18 A. So we could keep the records maintained,

 228 19 inventories, be able to know which hearing protectors

 228 20 we had to develop training aids for.

232:7 - 232:18 Ohlin 2013-04-24

 232 7 Q. Now, earlier you -- you said in another

 232 8 context when asking for information that competition

 232 9 is a good thing for hearing protectors?

 232 10 A. Yes.

 232 11 Q. Aren't you undercutting your own

 232 12 rationale when you limit the list of approved

 232 13 protectors?

 232 14 MR. MYERS: Objection, argumentative,

 232 15 vague and ambiguous.

 232 16 A. You may be -- you may be, to a certain

 232 17 extent, sacrificing one thing for another. Quality

 232 18 for -- for price. There's always trade-offs.

Re: [232:7-232:18]

Def Obj Vague; Argumentative (611, 

403)

SUSTAINED

232:19 - 233:5 Ohlin 2013-04-24

 232 19 BY MR. HILL:

 232 20 Q. And who is making those trade-offs?

 232 21 MR. MYERS: Objection, foundation.

 232 22 BY MR. HILL:

 232 23 Q. Was it you as the gatekeeper?

 232 24 MR. MYERS: Objection, foundation, vague

 232 25 and ambiguous.

 233 1 A. Again, I didn't get into price --

 233 2 pricing. Although, we -- we were always trying to be

 233 3 cost effective, but the first things we would always

 233 4 look at was performance, and the bean counters would

 233 5 have to worry about price more than us.

Re: [232:19-233:5]

Def Obj Foundation (602); Vague (611, 

403)

SUSTAINED

233:6 - 233:10 Ohlin 2013-04-24

 233 6 BY MR. HILL:

 233 7 Q. When you were providing recommendations

 233 8 regarding hearing protection products, did you have

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 124 of 128
Ohlin 2013-04-24 31

 233 9 specific products in mind when you created those

 233 10 specifications?

233:13 - 233:16 Ohlin 2013-04-24

 233 13 A. I didn't create specifications.

 233 14 BY MR. HILL:

 233 15 Q. When you were providing input into those

 233 16 specifications.

233:19 - 233:24 Ohlin 2013-04-24

 233 19 A. I was looking for products that were

 233 20 unique, that offered something that was not offered by

 233 21 what was currently in the system. That was my

 233 22 criteria. And, again, I only -- I only remember

 233 23 recommending, really, two earplugs: the Combat Arms

 233 24 Earplug and the Elvex Quattro.

239:15 - 239:22 Ohlin 2013-04-24

 239 15 (Ohlin Exhibit 520 was marked for

 239 16 purposes of identification.)

 239 17 BY MR. HILL:

 239 18 Q. All right. I'm handing to you a document

 239 19 that's been marked as Exhibit No. 520. Do you

 239 20 recognize this document?

 239 21 A. Apparently, I wrote it, but I don't

 239 22 specifically remember. What's -- what's the date on

240:4 - 240:20 Ohlin 2013-04-24

 240 4 Q. What is this document?

 240 5 A. This is a request for a national stock

 240 6 number.

 240 7 Q. And that's for a non-linear earplug

 240 8 configured to the specifications of the enclosed

 240 9 production samples to be adapted -- be adopted for

 240 10 military use. What -- what non-linear earplug samples

 240 11 were those?

 240 12 A. This would be for the double-ended plug.

 240 13 Q. The Combat Arms Earplug?

 240 14 A. Yes.

 240 15 Q. Does this reflect your -- does this

 240 16 refresh your recollection as to whether there was

 240 17 specifications relating to that plug?

 240 18 A. This was a justification. This wasn't

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 125 of 128
Ohlin 2013-04-24 32

 240 19 really specifications, per se. The label here is

 240 20 justification for non-linear earplug.

240:21 - 241:8 Ohlin 2013-04-24

 240 21 Q. When you say -- "...recommended that a

 240 22 non-linear earplug configured to the specifications of

 240 23 the enclosed production."

 240 24 So are you saying there the

 240 25 specifications is -- is being used in a different

 241 1 sense of the specification that we talked about

 241 2 earlier today?

 241 3 MR. MYERS: Object -- objection, vague

 241 4 and ambiguous, assumes facts not in evidence.

 241 5 A. Again, I -- I know of no specification

 241 6 for the Combat Arms Earplug. This was a just- --

 241 7 justification for getting a national stock number for

 241 8 it.

Re: [240:21-241:8]

Def Obj Vague; Misstates (611, 403); 

Assumes facts not in evidence (611, 403)

OVERRULED

242:10 - 242:18 Ohlin 2013-04-24

 242 10 Q. And do you see where the next -- next

 242 11 sentence says, "A small filter is inserted into the

 242 12 center stem of an earplug"?

 242 13 A. Uh-huh.

 242 14 Q. Is that the filter we talked about

 242 15 earlier today as the French filter?

 242 16 A. Yes.

 242 17 Q. And is that the filter that you brought

 242 18 to the attention of Dr. -- or of Mr. Elliott Berger?

242:20 - 243:2 Ohlin 2013-04-24

 242 20 A. Yes.

 242 21 BY MR. HILL:

 242 22 Q. And I see -- turn back to the first page

 242 23 of this document. It says, "If feasible, a bulk

 242 24 purchase through the DLA could minimize cost."

 242 25 A. Uh-huh.

 243 1 Q. Do you usually recommend a bulk purchase

 243 2 when you're recommending a new product?

243:5 - 243:9 Ohlin 2013-04-24

 243 5 A. Again, we're always -- funding is always

 243 6 an issue, and we're always trying to keep down the

 243 7 price, and DLA, at this time -- I know that it's

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 126 of 128
Ohlin 2013-04-24 33

 243 8 changed -- they could bulk purchase things and people

 243 9 could get 'em a lot cheaper.

243:14 - 243:16 Ohlin 2013-04-24

 243 14 Q. Does the Army hearing group still have a

 243 15 gatekeeper?

 243 16 A. No, they --

243:19 - 243:23 Ohlin 2013-04-24

 243 19 A. What they're trying to do is, they're

 243 20 trying to develop a protocol based on objective data,

 243 21 based on attenuation data, communication data, and

 243 22 localization data to make their decisions on the basis

 243 23 of data, per se.

261:21 - 261:22 Ohlin 2013-04-24

 261 21 Q. What is your role for Aearo or 3M

 261 22 regarding the Ability One program?

261:25 - 262:3 Ohlin 2013-04-24

 261 25 A. I don't really have a role other than

 262 1 what we do at the conferences, fitting those earplugs.

 262 2 And I -- when called upon, I will provide them with

 262 3 some technical information if they request it.

262:5 - 262:12 Ohlin 2013-04-24

 262 5 Q. What technical information have you been

 262 6 called upon to provide?

 262 7 A. The one that comes to mind is the

 262 8 justification for the Combat Arms Earplug.

 262 9 Q. And when you say that, what do you mean?

 262 10 A. Why it's unique, why it's a superior

 262 11 product.

 262 12 Q. Anything related to human testing?

262:14 - 262:15 Ohlin 2013-04-24

 262 14 A. Yeah, I did -- I did provide them with a

 262 15 -- a synopsis of that study, yes.

272:10 - 272:13 Ohlin 2013-04-24

 272 10 MR. HILL: Let's mark these two and

 272 11 then...

 272 12 (Ohlin Exhibits 527 & 528 was marked for

 272 13 purposes of identification.)

272:15 - 273:6 Ohlin 2013-04-24

 272 15 Q. Please take a moment to look at these two

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 127 of 128
Ohlin 2013-04-24 34

 272 16 documents, which are labeled as Exhibits 527 and 528.

 272 17 Do you recognize these documents?

 272 18 A. Yeah, this is a wallet card that I think

 272 19 3M came out with.

 272 20 Q. Now -- and are you talking now about

 272 21 Exhibit No. 527?

 272 22 A. I think so. The Army also had a wallet

 272 23 card. I don't remember what the difference between

 272 24 the two were. Just a minute. Okay.

 272 25 Q. Do you see where it says, "Recommend the

 273 1 removal of the NRR information. It means nothing to

 273 2 the individual soldier other than the potential to

 273 3 mislead them on the protective capabilities in the

 273 4 level dependent, open mode"?

 273 5 A. Yeah.

 273 6 Q. What do you mean by that?

273:8 - 273:16 Ohlin 2013-04-24

 273 8 A. The ANSI standard was never meant to

 273 9 evaluate non-linear devices, but by law, they have to

 273 10 do it anyway, and they have to include the NRR in the

 273 11 non-linear mode. And when they see that, they might

 273 12 think that it's not providing adequate protection.

 273 13 They don't understand the principle of

 273 14 acoustic impedance and how that works with impulse

 273 15 noise and so forth. Like I said before, impulse noise

 273 16 is a different animal.

Case 7:20-cv-00137-MCR-GRJ Document 93-1 Filed 03/20/21 Page 128 of 128