EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 1 of 67
Myers, Brian 12-12-2019

[Revised Objection Report]

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 2 of 67
Myers, Brian 12-12-2019 2

Designation Preserved Objections Previous 

Rulings

New Objections Rulings

8:21 - 10:11 Myers, Brian 12-12-2019

 8 21 Q. Good morning, sir. For the jury, could

 8 22 you please state your name?

 8 23 A. My name is Brian Myers.

 8 24 Q. And is it correct, sir, that you are

 8 25 currently an employee of 3M?

 9 1 A. I am.

 9 2 Q. We are here today in a product liability

 9 3 litigation relating to a product that 3M made and sold

 9 4 for about 15 years.

 9 5 You are familiar with that product, the

 9 6 Combat Arms Version 2?

 9 7 A. I am familiar with the Combat Arms

 9 8 Version 2.

 9 9 Q. And if we wanted to talk to the product

 9 10 manager who brought that product to market, we'd be

 9 11 talking to the right person today, right?

 9 12 A. I was a product manager in the early days

 9 13 of development and -- and market introduction.

 9 14 Q. Okay. And staying with my question, so

 9 15 the product manager that brought it to market was 

you,

 9 16 is that right?

 9 17 A. I was -- I was in the role of product

 9 18 manager when it came to market.

 9 19 Q. Okay. And you were the product manager

 9 20 from when it was an idea until the time it was brought

 9 21 to market until what point in time, sir?

 9 22 A. So I was the product manager from the

 9 23 time -- from the inception of it. So I was a product

 9 24 manager in hearing from the -- sometime in the early

 9 25 '90s and this was -- I think the inception of it was

 10 1 '97, '98, that's when there were kind of ideas about

 10 2 it, and then I was the product manager responsible for

 10 3 the hearing protection line until 2011. Sometime in

 10 4 the mid 2000s I -- I got another product manager who

 10 5 had, maybe, more direct responsibility for it, but...

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 3 of 67
Myers, Brian 12-12-2019 3

 10 6 Q. And who is that, Mr. Moses?

 10 7 A. No. Marc Santoro.

 10 8 Q. Uh-huh. And so it sounds like you -- you

 10 9 stopped having day-to-day responsibility or even

 10 10 supervisory responsibility in about 2011.

 10 11 Do I have that right?

10:14 - 10:17 Myers, Brian 12-12-2019

 10 14 A. I would have had maybe day-to-day

 10 15 interactions or -- or those responsibilities. I -- I

 10 16 did -- I -- you know, Marc did work for me, so I was

 10 17 still his supervisor.

11:16 - 12:2 Myers, Brian 12-12-2019

 11 16 Q. Okay. I'd like to, I guess, go through

 11 17 some terms with you and make sure we have some 

common

 11 18 understanding throughout the day.

 11 19 When we talk about the Combat Arms, we're

 11 20 talking about --

 11 21 MR. BUCHANAN: Let's see. Could I have P978a.

 11 22 We'll mark this as Exhibit 1 to your

 11 23 deposition, sir.

 11 24 (WHEREUPON, a certain document was

 11 25 marked Brian Myers Deposition Exhibit

 12 1 No. 1, for identification, as of

 12 2 12/12/2019.)

12:9 - 12:17 Myers, Brian 12-12-2019

 12 9 Q. All right. Sir, are these the Combat Arms

 12 10 Version 2? Excuse me?

 12 11 A. The -- this is the product that I recall

 12 12 as Combat Arms Version 2.

 12 13 Q. This is the product you were product

 12 14 manager for?

 12 15 A. Yes.

 12 16 Q. Brought to market?

 12 17 A. Yes.

16:1 - 16:4 Myers, Brian 12-12-2019

 16 1 (WHEREUPON, a certain document was

 16 2 marked Brian Myers Deposition Exhibit

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 4 of 67
Myers, Brian 12-12-2019 4

 16 3 No. 2, for identification, as of

 16 4 12/12/2019.)

16:7 - 16:8 Myers, Brian 12-12-2019

 16 7 MR. BUCHANAN: It is going to be Exhibit, I

 16 8 think, 2, okay.

16:15 - 18:1 Myers, Brian 12-12-2019

 16 15 Q. I'll represent to you, sir, this is a 3M

 16 16 video, I think it's current video of 3M.

 16 17 Do you still have any responsibility for

 16 18 hearing protection and safety devices at 3M?

 16 19 A. I do have some responsibilities.

 16 20 Q. And what's your title currently there,

 16 21 sir?

 16 22 A. So I am a business director of hearing

 16 23 protection, communications, head protection, eye

 16 24 protection, face protection, some reflective materials

 16 25 and body protection, which is coveralls.

 17 1 Q. Okay. And you all put out kind of

 17 2 informational videos and, you know, sometimes

 17 3 generally about conditions, sometimes about safety

 17 4 risks and sometimes about your products, fair?

 17 5 A. I -- I think we do produce videos from

 17 6 time to time.

 17 7 Q. Okay. But let's just roll it forward from

 17 8 this point.

 17 9 (Video played.)

 17 10 BY MR. BUCHANAN:

 17 11 Q. Let's pause there for a moment.

 17 12 You saw that, the lead-in, "What's your

 17 13 favorite sounds," did you see that?

 17 14 A. The -- yeah, that was the -- the title or

 17 15 the first.

 17 16 Q. There was a young child kind of, I guess,

 17 17 laughing or giggling, somebody listening to music,

 17 18 someone talking to a friend, so the sounds of nature

 17 19 and birds.

 17 20 You agree those are many of life's

 17 21 pleasures, sir?

 17 22 A. Certainly being able to hear is -- is --

Re: [17:12-18:6]

Def Objection - Prejudice (403); 

Foundation (602); MIL 13.

Re: [17:7-17:9]

403

Re: [17:12-18:6]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 5 of 67
Myers, Brian 12-12-2019 5

 17 23 it provides us with -- with some pleasure in life.

 17 24 Q. It wouldn't surprise you, sir, if you

 17 25 didn't have that ability, frankly, your life might be

 18 1 a lot less enjoyable, fair?

18:4 - 18:6 Myers, Brian 12-12-2019

 18 4 A. I -- I can imagine -- you know, if I

 18 5 imagine my life without the ability to hear, it would

 18 6 change it dramatically, I think.

Re: [17:12-18:6]

Def Objection - Prejudice (403); 

Foundation (602); MIL 13.

Re: [17:12-18:6]

Baker MIL 1

OVERRULED

18:15 - 18:21 Myers, Brian 12-12-2019

 18 15 And so in this video that includes

 18 16 discussion of hearing protective devices, and we'll

 18 17 see that as we get on, is it fair to say the company

 18 18 upfront, right upfront at the beginning of it, is

 18 19 really emphasizing how important good hearing, 

having

 18 20 the ability to hear voices, laughter, music,

 18 21 conversation is to quality of life?

Re: [18:15-19:3]

Def Objection - Prejudice (403); 

Foundation (602); Compound 

(611, 403); MIL 13.

Re: [18:15-19:3]

Baker MIL 1

OVERRULED

18:25 - 19:3 Myers, Brian 12-12-2019

 18 25 A. So I'm not sure what the objectives of the

 19 1 video were, and I guess we are going to see the rest

 19 2 of it, but it does seem that what -- what they are

 19 3 trying to say is hearing is important.

Re: [18:15-19:3]

Def Objection - Prejudice (403); 

Foundation (602); Compound 

(611, 403); MIL 13.

Re: [18:15-19:3]

Baker MIL 1

OVERRULED

20:1 - 20:9 Myers, Brian 12-12-2019

 20 1 Q. Okay. And -- and, I mean, you are not

 20 2 just a business person, right, sir?

 20 3 A. No. I am a business person.

 20 4 Q. Well, in fact, didn't you have some fairly

 20 5 senior roles in conservation -- hearing conservation

 20 6 societies?

 20 7 A. I was a, let's see, in the National

 20 8 Hearing Conservation Association, I was the -- I was

 20 9 the treasurer at one point.

Re: [20:1-20:9]

Plt Objection - improper counter

Re: [20:1-20:9]

Plt Objection -

improper 

counter per PTO 

64

SUSTAINED

23:14 - 23:19 Myers, Brian 12-12-2019

 23 14 Q. And the screen says: "Loud noise damages

 23 15 the inner ear."

 23 16 Is that your understanding, sir?

 23 17 A. That's what that says.

 23 18 Q. You agree?

 23 19 A. Yeah, that's my understanding.

Re: [23:14-23:19]

Def Objection - Prejudice (403); 

Foundation (602); MIL 13.

Re: [23:14-23:19]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 6 of 67
Myers, Brian 12-12-2019 6

24:17 - 24:24 Myers, Brian 12-12-2019

 24 17 Q. You saw those kind of hairs just kind of

 24 18 die, did you see that picture?

 24 19 A. I saw that.

 24 20 Q. Okay.

 24 21 A. Yes.

 24 22 Q. Is that your understanding, sir, that loud

 24 23 noise damage those hair cells and that damage is

 24 24 permanent?

Re: [24:17-24:19]

Def Objection - Prejudice (403); 

Foundation (602); MIL 13.

Re: [24:22-24:24]

Def Objection - 403; Foundation 

(602); 702

OVERRULED

25:2 - 25:4 Myers, Brian 12-12-2019

 25 2 A. I -- I mean, I don't know exactly how that

 25 3 all occurs. I just know that there is a linkage

 25 4 between this loud noise and -- and damage.

Re: [25:2-25:4]

Def Objection - Foundation 

(602); 702

OVERRULED

27:1 - 27:4 Myers, Brian 12-12-2019

 27 1 Q. You don't understand, sir, that if you

 27 2 lose hairs, as shown in this picture, on the inner

 27 3 ear, in the cochlea, that people will develop gaps in

 27 4 their ability to hear certain frequencies?

Re: [27:1-27:4]

602, 701, speculation

OVERRULED

27:8 - 27:11 Myers, Brian 12-12-2019

 27 8 A. So I know that -- or my understanding is

 27 9 that when people start to develop hearing loss, it

 27 10 usually show up -- shows up in certain frequencies

 27 11 in -- before it spreads to other frequencies.

Re: [27:8-27:11]

602, 701, speculation

OVERRULED

27:12 - 27:13 Myers, Brian 12-12-2019

 27 12 Q. Okay.

 27 13 A. I don't know if that's your question.

40:20 - 41:22 Myers, Brian 12-12-2019

 40 20 Q. The beginning of that sequence said:

 40 21 "With hearing damage" and then it went through and 

it

 40 22 is going through different conditions associated with

 40 23 hearing damage, fair?

 40 24 A. I -- we haven't -- haven't seen the rest

 40 25 of it, but, yeah, that's probably where we are going

 41 1 here.

 41 2 Q. Oh, okay. Well, you saw the first one.

 41 3 You --

 41 4 A. I did.

 41 5 Q. -- you know that tinnitus is associated

Re: [40:20-41:22]

Def Objection - Prejudice (403); 

Foundation (602); MIL 13

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 7 of 67
Myers, Brian 12-12-2019 7

 41 6 with damage to the ear, fair?

 41 7 A. My understanding is that that can be

 41 8 something that happens with hearing loss.

 41 9 Q. Okay.

 41 10 MR. BUCHANAN: Let's replay that beginning

 41 11 portion again.

 41 12 (Video played.)

 41 13 MR. BUCHANAN: Pause.

 41 14 BY MR. BUCHANAN:

 41 15 Q. It says: "With hearing damage what else

 41 16 could you experience?"

 41 17 Right?

 41 18 A. That's what that says.

 41 19 Q. Okay. And the first answer to that was

 41 20 what, sir?

 41 21 A. They -- there was a clip and then they

 41 22 said: "Tinnitus."

51:22 - 51:24 Myers, Brian 12-12-2019

 51 22 Q. So one of the things you are trying to do

 51 23 with hearing protection devices is make sure we don't

 51 24 find ourselves in that position, right?

52:2 - 52:5 Myers, Brian 12-12-2019

 52 2 A. We are trying to provide the -- the tools

 52 3 and the products to -- or the products to help people

 52 4 not be overexposed to -- to loud noises and -- and

 52 5 prevent maybe some of what we saw there.

52:7 - 52:9 Myers, Brian 12-12-2019

 52 7 Q. Would you agree that if you are going to

 52 8 make hearing protection devices it's very important

 52 9 that they actually protect hearing?

52:12 - 52:25 Myers, Brian 12-12-2019

 52 12 A. I'm -- that's -- we try to design and

 52 13 manufacture and market devices that do protect

 52 14 hearing.

 52 15 BY MR. BUCHANAN:

 52 16 Q. Okay. You agree that one of the ways in

 52 17 which you discern the ability of a hearing protection

 52 18 device to protect hearing is you test it, right?

 52 19 A. Yeah, certainly hearing protection is

Re: [52:21-52:25]

Def Objection - 403; Foundation 

(602)

Re: [52:21-

52:25]

Def Objection -

403; Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 8 of 67
Myers, Brian 12-12-2019 8

 52 20 tested.

 52 21 Q. Okay. And certainly, as a manufacturer of

 52 22 hearing protection devices, if you are going to test

 52 23 those devices, you should test them in a way to assure

 52 24 that people that use them are actually going to get

 52 25 protection, right?

53:3 - 53:5 Myers, Brian 12-12-2019

 53 3 A. So, I mean, in -- in that regard for some

 53 4 tests, some tests are stipulated as, you know, this is

 53 5 the test that you have to run.

Re: [53:2-53:5]

Def Objection - 403; Foundation 

(602)

Re: [53:2-53:5]

Def Objection -

403; Foundation 

(602)

OVERRULED

53:23 - 54:1 Myers, Brian 12-12-2019

 53 23 Q. Okay. And that if tests are required to

 53 24 ensure that it has those characteristics, you should

 53 25 run those tests, right?

 54 1 A. If those tests are required, yes.

54:2 - 54:7 Myers, Brian 12-12-2019

 54 2 Q. Well, to ensure that a product has certain

 54 3 characteristics, you may need to run certain tests,

 54 4 right?

 54 5 A. Sure, that's my understanding.

 54 6 Q. And 3M as a company knows how to run tests

 54 7 to evaluate characteristics if it wants to, right?

Re: [54:6-54:7]

Def Objection - 403; Foundation 

(602)

Re: [54:6-54:7]

Def Objection -

403; Foundation 

(602)

OVERRULED

54:10 - 54:10 Myers, Brian 12-12-2019

 54 10 A. Yeah, certainly we do some testing.

Re: [54:9-54:10]

Def Objection - 403; Foundation 

(602)

Re: [54:9-

54:10]

Def Objection -

403; Foundation 

(602)

OVERRULED

54:24 - 55:1 Myers, Brian 12-12-2019

 54 24 Q. Well, the green --

 54 25 A. The green --

 55 1 Q. -- end was continuous protection?

55:4 - 55:6 Myers, Brian 12-12-2019

 55 4 BY THE WITNESS:

 55 5 A. But -- but the green end certainly was

 55 6 designed to keep noise out.

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 9 of 67
Myers, Brian 12-12-2019 9

55:8 - 55:18 Myers, Brian 12-12-2019

 55 8 Q. It was designed to keep noise out

 55 9 continuously, correct?

 55 10 A. That's my understanding of the -- of

 55 11 the -- when you had that end in, that's -- that's what

 55 12 it was supposed to do.

 55 13 Q. Continuous protection, right?

 55 14 A. Yes, continuous protection.

 55 15 Q. The yellow end was designed to allow

 55 16 people to hear-thru, right?

 55 17 A. That was a term that -- that was used in

 55 18 the marketing.

Re: [55:8-55:18]

701

OVERRULED

57:25 - 58:2 Myers, Brian 12-12-2019

 57 25 So whether it is earmuffs or earplugs, a

 58 1 seal is an important, very important characteristic,

 58 2 right?

Re: [57:25-58:2]

Def Objection - Prejudice (403); 

Foundation (602).

Re: [57:25-

58:2]

Def Objection -

Prejudice (403); 

Foundation 

(602).

OVERRULED

58:5 - 58:6 Myers, Brian 12-12-2019

 58 5 A. My understanding is that a seal is

 58 6 important in -- in these kinds of hearing protectors.

Re: [58:5-58:6]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [58:5-58:6]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

58:25 - 59:10 Myers, Brian 12-12-2019

 58 25 Q. Okay. Is this called a passive hearing

 59 1 protection device?

 59 2 A. We -- we would have considered it a

 59 3 passive hearing protection device because it had no --

 59 4 no power.

 59 5 Q. Okay. So in your field, in the field of

 59 6 hearing protection, there are active hearing

 59 7 protection devices and there are passive hearing

 59 8 protection devices, fair?

 59 9 A. So that's one way to distinguish between

 59 10 two devices.

61:21 - 62:1 Myers, Brian 12-12-2019

 61 21 Q. Okay, sir. Well, let's say, what concern

Re: [61:21-62:14]

602; 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 10 of 67
Myers, Brian 12-12-2019 10

 61 22 would you have, sir, as an overseer of hearing

 61 23 protection devices for many, many years and a 

product

 61 24 manager who brought this product to market, if you

 61 25 learned that a passive hearing protection device like

 62 1 this one didn't seal in the ear?

62:4 - 62:14 Myers, Brian 12-12-2019

 62 4 A. I mean, I -- I think that's something that

 62 5 I would talk to the technical group about.

 62 6 BY MR. BUCHANAN:

 62 7 Q. Didn't you --

 62 8 A. It's a --

 62 9 Q. -- oversee the technical group, sir, when

 62 10 this product was being developed?

 62 11 A. No.

 62 12 Q. Didn't Mr. Berger report to you in the

 62 13 late '90s when this product was being developed?

 62 14 A. He did report to me.

Re: [61:21-62:14]

602; 701

OVERRULED

62:15 - 62:18 Myers, Brian 12-12-2019

 62 15 Q. Okay.

 62 16 A. But the question that you asked was about

 62 17 the technical function and that reported through a guy

 62 18 named Dick Knauer.

63:16 - 63:18 Myers, Brian 12-12-2019

 63 16 Q. Okay. And if the sounds leak around that

 63 17 seal, what does that mean?

 63 18 A. It's a concern.

Re: [63:16-63:19]

602; 701

OVERRULED

63:19 - 63:19 Myers, Brian 12-12-2019

 63 19 Q. Why is it a concern?

Re: [63:16-63:19]

602; 701

OVERRULED

63:22 - 63:22 Myers, Brian 12-12-2019

 63 22 A. Again, because the seal is important.

Re: [63:22-63:22]

602; 701

OVERRULED

64:14 - 64:16 Myers, Brian 12-12-2019

 64 14 Q. Okay. And if you don't have a seal, then

 64 15 the sound can get around, right, that's your

 64 16 understanding?

Re: [64:14-64:16]

602; 701

OVERRULED

64:19 - 64:24 Myers, Brian 12-12-2019

 64 19 A. That's my basic understanding.

 64 20 BY MR. BUCHANAN:

Re: [64:19-64:24]

Hearsay

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 11 of 67
Myers, Brian 12-12-2019 11

 64 21 Q. Okay. And you said that it has been told

 64 22 to you, correct?

 64 23 A. The -- that's -- has -- has been conveyed

 64 24 to me by the technical group.

67:5 - 67:6 Myers, Brian 12-12-2019

 67 5 Q. Right. You certainly don't want them

 67 6 loosening and breaking the seal, right?

Re: [67:5-67:10]

701; 602

OVERRULED

67:9 - 67:10 Myers, Brian 12-12-2019

 67 9 A. I think the -- I think the idea is to

 67 10 maintain a seal.

Re: [67:5-67:10]

701; 602

OVERRULED

67:16 - 67:18 Myers, Brian 12-12-2019

 67 16 Q. And you certainly wouldn't want that to

 67 17 happen in a way that was imperceptible to the wearer,

 67 18 correct?

Re: [67:16-67:18]

701; 602

OVERRULED

67:21 - 67:22 Myers, Brian 12-12-2019

 67 21 A. I think that's not something you would

 67 22 want to happen.

Re: [67:21-67:22]

701; 602

OVERRULED

67:24 - 67:25 Myers, Brian 12-12-2019

 67 24 Q. Because then they wouldn't even know they

 67 25 needed to fix it, right?

Re: [67:24-68:6]

nonresponsive; 602

OVERRULED

68:4 - 68:6 Myers, Brian 12-12-2019

 68 4 A. I -- I think it would depend upon what

 68 5 training or what they had been told in terms of how to

 68 6 wear the product.

Re: [67:24-68:6]

nonresponsive; 602

OVERRULED

68:8 - 68:10 Myers, Brian 12-12-2019

 68 8 Q. And you agree it would be a fair concern

 68 9 that if it loosened or the seal broke, that the users

 68 10 of the device would not be getting protection, right?

Re: [68:8-68:10]

701; 602; 403; asked and 

answered

OVERRULED

68:14 - 68:16 Myers, Brian 12-12-2019

 68 14 A. So I think that's the question you asked

 68 15 me before, and I -- it is a technical question about

 68 16 what protection they would get.

Re: [68:14-68:16]

701; 602; 403; asked and 

answered

OVERRULED

68:25 - 69:4 Myers, Brian 12-12-2019

 68 25 Q. Is that a technical question, sir?

 69 1 A. Yes.

 69 2 Q. I think you told us that a seal is

 69 3 essential for hearing -- passive hearing protection

 69 4 device like this one, right?

Re: [69:2-69:4]

Def Objection - 403; Foundation 

(602)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 12 of 67
Myers, Brian 12-12-2019 12

69:7 - 69:9 Myers, Brian 12-12-2019

 69 7 Q. Didn't you tell us that?

 69 8 A. So -- so what I -- what I believe I said

 69 9 was that getting a -- a seal is important.

Re: [69:7-69:9]

Def Objection - 403; Foundation 

(602)

OVERRULED

69:10 - 69:16 Myers, Brian 12-12-2019

 69 10 Q. And you told us why that was, because the

 69 11 seal keeps the sound out, right?

 69 12 A. Yes, that's correct.

 69 13 Q. And let's follow this through.

 69 14 If you don't have a seal, sound gets in,

 69 15 right?

 69 16 A. Yes.

74:21 - 75:13 Myers, Brian 12-12-2019

 74 21 Q. Okay. And what you list here on your --

 74 22 your CV, your resume here, sir, is Aearo Corporation,

 74 23 formerly Cabot Safety Corporation -- excuse me, sir -

-

 74 24 Vice President Hearing Conservation Products.

 74 25 Did I read that correctly?

 75 1 A. Yes.

 75 2 Q. From 1993 to 2008, right? Isn't that what

 75 3 you wrote?

 75 4 A. Oh, yes, I see that. Yes.

 75 5 Q. Okay. And that was your position and

 75 6 function at Aearo Corporation, formerly Cabot Safety

 75 7 Corporation, for some 15 years, is that right, sir?

 75 8 A. So, I'm not sure that -- in fact, I'm

 75 9 pretty sure that was not my title in January of '93,

 75 10 but at some point, with similar responsibilities at

 75 11 some point, that's what my title was changed to. And

 75 12 I believe that was my title in April of '08 when 3M

 75 13 purchased Aearo.

75:14 - 75:21 Myers, Brian 12-12-2019

 75 14 Q. Oh, so you weren't -- I mean, this says

 75 15 here in your CV, sir, or resume that you were a vice

 75 16 president back in 1993.

 75 17 Is that true?

 75 18 A. I don't believe that's true. I think I

 75 19 meant this to indicate that I had a responsibility,

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 13 of 67
Myers, Brian 12-12-2019 13

 75 20 there was a progression of titles, probably too many

 75 21 to -- to list or that anybody would care to read.

76:1 - 77:8 Myers, Brian 12-12-2019

 76 1 A. And ultimately that was the title that I

 76 2 had in -- in April of 2008 when we were purchased by

 76 3 3M.

 76 4 Q. I mean, you listed some of the other

 76 5 positions you had there at Cabot, right, before 1993?

 76 6 A. I did. I listed those because the

 76 7 responsibilities were quite different.

 76 8 Q. Okay. Production Manager, Cabot Safety

 76 9 Corp., '89 to '92, right?

 76 10 A. Yes. It says that I was a production

 76 11 manager and then ultimately the plant manager.

 76 12 Q. Right. And I see above that, sir,

 76 13 Director of Product -- excuse me -- Director of

 76 14 Product Line AOSafety Respiratory Division from 

June

 76 15 of '92 to January '93, right?

 76 16 A. Yes. I ran the -- I -- I functioned as

 76 17 the marketing person in the respiratory division --

 76 18 Q. Okay.

 76 19 A. -- during that period of time.

 76 20 Q. And then the next position you list there

 76 21 in your Aearo Corporation days is Vice President

 76 22 Hearing Conservation Products, 15 years, right?

 76 23 Is that what you listed?

 76 24 A. That's what the document says.

 76 25 Q. And you are saying that's not true?

 77 1 A. I tried to explain that -- I think I had a

 77 2 progression of titles. That was the last title that I

 77 3 had when I had generally these responsibilities.

 77 4 Q. Okay. It certainly lists that position

 77 5 for 15 years, true?

 77 6 A. That's not my -- that's not my intention

 77 7 behind the -- the document. I had intended to list

 77 8 that that was ultimately the title that I had.

Re: [76:1-77:8]

improper counter; cumulative

OVERRULED

84:1 - 84:21 Myers, Brian 12-12-2019

 84 1 As I understand your testimony, sir, there

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 14 of 67
Myers, Brian 12-12-2019 14

 84 2 was Cabot Corporation in the late '80s, they had Aearo

 84 3 or E-A-R within it, right?

 84 4 A. So my understanding when I joined in '89

 84 5 is that E-A-R was a division of Cabot and then at 

some

 84 6 point Cabot bought another safety products company 

and

 84 7 the entity ultimately was named Cabot Safety, and 

then

 84 8 at some point that entity was ultimately re -- renamed

 84 9 to Aearo Corporation, and that was the corporation

 84 10 that was purchased by 3M.

 84 11 Q. Understood.

 84 12 And after you joined 3M, sir, you

 84 13 maintained responsibility over passive hearing

 84 14 products for a period of time, is that fair?

 84 15 A. I did retain. I think I was called a

 84 16 product manager at that time, but I did retain some

 84 17 responsibilities.

 84 18 Q. I think what you listed here was that you

 84 19 were the Portfolio Manager for Passive Hearing

 84 20 Products, right?

 84 21 A. Yes.

85:3 - 85:12 Myers, Brian 12-12-2019

 85 3 Q. Okay. So as I understand the timing here,

 85 4 in 2007, 3M and Aearo agreed to that transaction and

 85 5 it closes in early 2008, right?

 85 6 A. That's my -- my understanding of the

 85 7 dates. It was announced in 2007 and closed in 2008.

 85 8 Q. And 3M paid $1.2 billion for Aearo

 85 9 Corporation, right?

 85 10 A. I don't recall the numbers specifically.

 85 11 Q. Did it end with a B?

 85 12 A. It -- it was --

Re: [85:3-85:12]

Def Objection - Foundation 

(602); Prejudice (403); MIL 7

Re: [85:3-

85:12]

Def Objection -

Foundation 

(602); Prejudice 

(403); MIL 7

OVERRULED

85:15 - 85:15 Myers, Brian 12-12-2019

 85 15 A. It was in that neighborhood.

Re: [85:15-85:15]

Def Objection - Foundation 

(602); Ambiguous (611, 403); 

MIL 7

Re: [85:14-

85:15]

Def Objection -

Foundation 

(602); 

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 15 of 67
Myers, Brian 12-12-2019 15

Ambiguous 

(611, 403); MIL 

7

OVERRULED

85:17 - 85:19 Myers, Brian 12-12-2019

 85 17 Q. Okay. And you then assumed the

 85 18 responsibility to oversee passive hearing products at

 85 19 3M, right?

85:22 - 85:24 Myers, Brian 12-12-2019

 85 22 A. Yes, I was -- now that I look at the -- at

 85 23 the CV, I was the portfolio manager for the passive

 85 24 hearing group --

86:2 - 86:2 Myers, Brian 12-12-2019

 86 2 A. -- at that time.

86:18 - 86:24 Myers, Brian 12-12-2019

 86 18 Q. And back in the late '90s when this first

 86 19 showed up on your radar, "this" being this 

development

 86 20 project that resulted in the Combat Arms, you were

 86 21 the -- what was that -- project manager for that

 86 22 project, is that right?

 86 23 A. Yes. I think you'll see on new product

 86 24 documents that I was listed as the project manager.

90:1 - 90:14 Myers, Brian 12-12-2019

 90 1 Q. Right, right. And, frankly, in 19 -- when

 90 2 was the Combat Arms launched, sir, Version 2?

 90 3 A. I think we were able to find that our

 90 4 first sales were in the latter part of 1999.

 90 5 Q. Okay. You started selling in '99?

 90 6 A. Yes, that's correct.

 90 7 Q. And -- and really, just in terms of

 90 8 project prioritization within Aearo, I mean, this was

 90 9 as high a probability of success project as you all

 90 10 had, isn't that true?

 90 11 A. On this document it -- it shows a very

 90 12 high probability of success, but I'm thinking that the

 90 13 document was from November of 1999, so we had 

already

 90 14 sold some at that point.

Re: [90:1-90:14]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 16 of 67
Myers, Brian 12-12-2019 16

99:16 - 100:21 Myers, Brian 12-12-2019

 99 16 Q. Okay. And so on this project summary

 99 17 sheet, one of the things you do is provide a product

 99 18 description and positioning, right, second line?

 99 19 A. Yes, product description and positioning

 99 20 is one of the blocks that was completed on the 

summary

 99 21 sheet.

 99 22 Q. Right. And it says: "Nonlinear plug to

 99 23 be sold to the military and as a shooter's plug,"

 99 24 right?

 99 25 A. That's what it says.

 100 1 Q. So at the time of launch or shortly around

 100 2 the time of launch in 1999, you had identified two

 100 3 target segments for this product line, fair?

 100 4 A. This says the military and as shooter's

 100 5 plug. I guess the military used it as a shooter's

 100 6 plug, but, yes, two, there is two distinct areas

 100 7 brought out there.

 100 8 Q. Well, yes. Product description and

 100 9 positioning, okay.

 100 10 Military would be a channel, right? Or a

 100 11 customer source, correct?

 100 12 A. Yeah. I'm thinking it is more of a

 100 13 customer.

 100 14 Q. Okay. And then you also had a market of

 100 15 outdoorsman, hunters, shooters, right?

 100 16 A. And I think that's what was intended by

 100 17 the phrase "shooter's plug."

 100 18 Q. Okay. And if we scroll down here, we see

 100 19 Probability of Success, 90 percent.

 100 20 Do you see that, in the -- yeah --

 100 21 A. Yes.

Re: [100:14-100:21]

403; 401; Baker MIL 1

OVERRULED

104:2 - 104:3 Myers, Brian 12-12-2019

 104 2 Q. You didn't own all of the technology you

 104 3 needed to sell the Combat Arms Version 2, right?

Re: [104:2-104:3]

Def Objection - Foundation 

(602); Prejudice (403); calls for 

a legal conclusion.

Re: [104:2-104:3]

Baker MIL 1

OVERRULED

104:7 - 104:10 Myers, Brian 12-12-2019

 104 7 A. So the royalty agreement involved a -- an

Re: [104:7-104:10]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 17 of 67
Myers, Brian 12-12-2019 17

 104 8 agreement with a company called ISL out of Europe 

who

 104 9 had developed some of the technology that was

 104 10 incorporated into the product.

104:12 - 104:13 Myers, Brian 12-12-2019

 104 12 Q. Okay. And -- and you and ISL developed

 104 13 the product, right?

Re: [104:12-104:20]

Plt Objection - improper counter 

per PTO 64

Re: [104:12-

104:13]

Plt Objection -

improper 

counter per PTO 

64

SUSTAINED

Re: [104:17-

104:20]

Plt Objection -

improper 

counter per PTO 

64

SUSTAINED

Re: [104:12-104:20]

402; 403; misstates evidence

Prior ruling 

stands.

104:17 - 104:20 Myers, Brian 12-12-2019

 104 17 A. I think I'd say that the product was a

 104 18 collaboration between ISL, the US military, and us.

 104 19 Q. You said the US military?

 104 20 A. Yes.

Re: [104:12-104:20]

Plt Objection - improper counter 

per PTO 64

Re: [104:12-

104:13]

Plt Objection -

improper 

counter per PTO 

64

SUSTAINED

Re: [104:17-

104:20]

Plt Objection -

improper 

counter per PTO 

64

SUSTAINED

Re: [104:12-104:20]

402; 403; misstates evidence

Prior ruling 

stands.

105:18 - 105:24 Myers, Brian 12-12-2019

 105 18 (WHEREUPON, a certain document was

 105 19 marked Brian Myers Deposition Exhibit

 105 20 No. 5, for identification, as of

 105 21 12/12/2019.)

 105 22 BY MR. BUCHANAN:

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 18 of 67
Myers, Brian 12-12-2019 18

 105 23 Q. I'm passing you Exhibit 5 to your

 105 24 deposition, sir.

105:25 - 106:23 Myers, Brian 12-12-2019

 105 25 In 2006, sir, you had some interactions

 106 1 with folks from the government concerning an item

 106 2 description for the Combat Arms.

 106 3 Do you recall that?

 106 4 A. Yes, I recall, I recall some of this.

 106 5 Q. And you went back and forth with a Thomas

 106 6 Sidor from the U.S. Government, right?

 106 7 A. Yes.

 106 8 Q. From DLA, right?

 106 9 A. Thomas Sidor, it looks like he was with

 106 10 DSCP, but I don't -- that's probably a part of DLA. I

 106 11 don't know.

 106 12 Q. Okay. And he understood they were getting

 106 13 into a place in 2006 reevaluating their -- their item

 106 14 description for the Combat Arms, or for nonlinear

 106 15 hearing protection devices, right?

 106 16 A. I recall that there was a -- a contract

 106 17 that came out for bid around that time.

 106 18 Q. And so when Mr. Sidor asked you for

 106 19 details about how it came to be, you told him you

 106 20 developed it with ISL, it was developed by ISL and

 106 21 your engineers.

 106 22 That's what you told the Federal

 106 23 Government when they asked, right?

Re: [106:12-106:23]

Def Objection - Foundation 

(602).

OVERRULED

107:6 - 107:13 Myers, Brian 12-12-2019

 107 6 A. So that's what the document says:

 107 7 "It was developed jointly by scientists at

 107 8 ISL (France) and our engineers and it was developed 

to

 107 9 address the problem with conventional hearing

 107 10 protectors used in combat and training by soldiers."

 107 11 Q. And when you said that was the document

 107 12 says, that's what you said?

 107 13 A. That was my reply to Tom.

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 19 of 67
Myers, Brian 12-12-2019 19

109:22 - 109:23 Myers, Brian 12-12-2019

 109 22 Q. You said it's ours, we have the patents on

 109 23 the device, right?

Re: [109:22-109:23]

401; 403; 602; misstates record

OVERRULED

110:2 - 110:4 Myers, Brian 12-12-2019

 110 2 A. I think that there were three patents

 110 3 cited and one or two of them were ISL patents and the

 110 4 other one was an Aearo or Cabot Safety patent.

Re: [110:2-110:4]

401; 403; 602; misstates record

OVERRULED

113:13 - 114:1 Myers, Brian 12-12-2019

 113 13 Q. Okay. And so you don't fuss with that

 113 14 characterization, sir, do you, that you wrote and

 113 15 communicated to the US Defense Logistics Agency 

in

 113 16 2006?

 113 17 A. Well, the only -- the only thing that I

 113 18 would say is that it was a -- a typical practice to

 113 19 talk to customers about their needs and often what 

did

 113 20 they think of products that we were developing, and I

 113 21 know in this case we did have conversations with a

 113 22 person in the -- in the US military and he did provide

 113 23 some clear direction about this product and its

 113 24 design.

 113 25 Q. Who is that individual, sir?

 114 1 A. It was a gentleman named Doug Ohlin.

Re: [113:13-114:1]

Plt Objection - improper counter

Re: [113:13-

114:1]

Plt Objection -

improper 

counter per PTO 

64

SUSTAINED

114:18 - 114:23 Myers, Brian 12-12-2019

 114 18 Q. He was in the military for a period of

 114 19 time when you all were developing the Combat 

Arms, is

 114 20 that fair?

 114 21 A. He -- he was in the military back in the

 114 22 late '90s when -- when we were developing the 

Combat

 114 23 Arms Version 2.

123:5 - 123:11 Myers, Brian 12-12-2019

 123 5 Q. I am passing you Exhibit 7 to your

 123 6 deposition, sir. Exhibit 7 is P1489. It is a January

 123 7 monthly report. It is dated February 3rd, 1997, from

 123 8 an Elliott Berger to yourself.

 123 9 Do you see that, sir?

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 20 of 67
Myers, Brian 12-12-2019 20

 123 10 A. I do see that in the heading on the

 123 11 report.

124:1 - 124:22 Myers, Brian 12-12-2019

 124 1 Under Product Development, the fourth

 124 2 paragraph says: "In response to a request," do you

 124 3 see that paragraph, sir?

 124 4 A. I see the paragraph that begins with that.

 124 5 Q. "In response to a request from Armand

 124 6 Dancer of ISL, arrangements were made to obtain a

 124 7 suitable confidentiality agreement so that two of

 124 8 Armand's representatives can visit E-A-RCAL 

laboratory

 124 9 in March to discuss their development of a

 124 10 level-dependent earplug and how Aearo company 

might

 124 11 work with them."

 124 12 Did I read that correctly?

 124 13 A. Yes, those are the words in this document.

 124 14 Q. Okay. And is that your recollection, sir,

 124 15 that in the early -- in early 1997 or so your -- your

 124 16 lab and folks with ISL were starting to meet about a

 124 17 nonlinear plug, fair?

 124 18 A. So my -- my specific recollection is

 124 19 that -- is that in a meeting that Elliott had arranged

 124 20 that I met at least with one person from ISL and they

 124 21 shared with us some concepts that they were working

 124 22 on.

126:5 - 126:15 Myers, Brian 12-12-2019

 126 5 Q. You and ISL were exploring, if you will,

 126 6 is there some way that we can be mutually beneficial

 126 7 to our mutual success by collaborating together,

 126 8 right?

 126 9 A. It says to discuss their development, so,

 126 10 yeah, that would have been talking with them to

 126 11 discuss developing a product.

 126 12 Q. Right. And -- and we know that actually

 126 13 you ultimately became the project manager for this

 126 14 project, right?

 126 15 A. Yes.

Re: [126:5-126:11]

Def Objection - Hearsay (801, 

802)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 21 of 67
Myers, Brian 12-12-2019 21

128:2 - 128:7 Myers, Brian 12-12-2019

 128 2 We were looking about that paragraph: "In

 128 3 response to a request from Armand Dancer of ISL,

 128 4 arrangements were made to obtain a confidentiality

 128 5 order in anticipation of a meeting."

 128 6 Do you recall that discussion?

 128 7 A. We did talk about that.

Re: [128:2-129:12]

Plt Objection - improper counter

OVERRULED

129:9 - 129:12 Myers, Brian 12-12-2019

 129 9 Q. Thank you.

 129 10 And that meeting did happen, right?

 129 11 A. I have a vague recollection of -- of a

 129 12 meeting, yes.

Re: [128:2-129:12]

Plt Objection - improper counter

OVERRULED

132:6 - 132:18 Myers, Brian 12-12-2019

 132 6 Q. Okay. You were on the business side of

 132 7 things, fair, yourself at that point in time?

 132 8 A. Ah, yes, yes.

 132 9 Q. And Mr. Berger was more on the technical

 132 10 side of things, would that be fair?

 132 11 A. He was certainly as more technical.

 132 12 Q. Okay. Were you guys in the same building

 132 13 at that point in time?

 132 14 A. I don't think we've ever had offices in

 132 15 the same building.

 132 16 Q. Okay. Was your office in the same

 132 17 building as the lab?

 132 18 A. No, it was not.

139:7 - 139:11 Myers, Brian 12-12-2019

 139 7 Now, you are the project manager on this

 139 8 project, sir. Are you getting these updates from

 139 9 Mr. Berger as well? I don't see you cc'd on them.

 139 10 A. So I don't -- I don't recall this. I can

 139 11 read it if you want me to and see if it...

158:4 - 158:10 Myers, Brian 12-12-2019

 158 4 Q. Okay. And so we looked at the discussions

 158 5 around a meeting in sometime in the spring of 1997

 158 6 where the ISL folks come in, there are some

 158 7 discussions back and forth between your technical 

team

 158 8 and Armand Dancer and Mr. Buck about certain

Re: [158:4-158:10]

Plt Objection - improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 22 of 67
Myers, Brian 12-12-2019 22

 158 9 technology pieces, but at some point in time the

 158 10 company decides this is a go, right?

158:14 - 158:19 Myers, Brian 12-12-2019

 158 14 A. So, again, I saw one piece of

 158 15 correspondence from Elliott to Armand. You gave 

me a

 158 16 piece of correspondence that was from Elliott to

 158 17 Elliott, so I'm not sure it ever went anywhere. So I

 158 18 don't want to characterize this as that there was a

 158 19 back and forth. I don't know.

Re: [158:14-158:19]

Plt Objection - improper counter

SUSTAINED

164:10 - 164:12 Myers, Brian 12-12-2019

 164 10 Q. Okay. Would it surprise you, sir, if you

 164 11 licensed their patents and intellectual property for a

 164 12 double-ended hearing protection device?

Re: [164:10-164:12]

Def Objection - 403; Calls For 

Legal Conclusion; Vague; 

ambiguous (611, 403).

Re: [164:10-164:12]

Baker MIL 1

OVERRULED

164:16 - 164:17 Myers, Brian 12-12-2019

 164 16 A. My understanding is that's a part of what

 164 17 was licensed in this agreement.

Re: [164:16-164:17]

Def Objection - 403; Calls For 

Legal Conclusion; Vague; 

ambiguous (611, 403).

Re: [164:16-164:17]

Baker MIL 1

OVERRULED

167:13 - 168:4 Myers, Brian 12-12-2019

 167 13 Q. You would agree, wouldn't you, sir, if you

 167 14 are going to market a product for hearing protection,

 167 15 you would test it to make sure that it protects

 167 16 hearing, right?

 167 17 A. We would do whatever testing technical

 167 18 deemed was appropriate.

 167 19 Q. I mean, you as the project manager here,

 167 20 sir, before you were putting hearing protection

 167 21 devices on the street, wouldn't you agree that you

 167 22 should test them to make sure that they really do

 167 23 protect hearing?

 167 24 A. Well, I would do what the technical group

 167 25 said that I needed to do to represent the product

 168 1 appropriately.

 168 2 Q. Okay. And so then it was the technical

 168 3 group that told you that no testing was required for

 168 4 the Combat Arms?

Re: [167:13-168:4]

403: 602; 701

OVERRULED

168:7 - 168:8 Myers, Brian 12-12-2019

 168 7 A. I'm not sure that no testing was

 168 8 performed. I don't know.

Re: [168:7-168:8]

403: 602; 701

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 23 of 67
Myers, Brian 12-12-2019 23

169:9 - 169:11 Myers, Brian 12-12-2019

 169 9 Is your testimony that it is okay to sell

 169 10 a hearing protection device without testing to see

 169 11 whether it protects hearing?

Re: [169:9-169:11]

602; 701; 403; argumentative; 

vague

OVERRULED

169:15 - 169:16 Myers, Brian 12-12-2019

 169 15 A. I would -- I would rely on technical to

 169 16 tell me what tests needed to be performed.

Re: [169:15-169:16]

602; 701; 403; argumentative; 

vague

OVERRULED

172:2 - 172:5 Myers, Brian 12-12-2019

 172 2 Q. As a consumer, sir, don't you hope that

 172 3 when somebody tells you that something is safe or

 172 4 protective that they've actually tested to make sure

 172 5 that it is safe and protective?

Re: [172:2-172:5]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [171:22-

172:5]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

172:8 - 172:10 Myers, Brian 12-12-2019

 172 8 Q. Don't you expect that as a consumer?

 172 9 A. I would hope that they could stand behind

 172 10 the claims that they made.

Re: [172:8-172:10]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [172:8-

172:13]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

174:8 - 174:13 Myers, Brian 12-12-2019

 174 8 Q. I am passing you, sir, what we are marking

 174 9 as Exhibit 12. Exhibit 12 is an e-mail, sir, and it

 174 10 is P922, using the other numbering system.

 174 11 But it is an e-mail from Mr. Berger to

 174 12 yourself, agreed?

 174 13 A. It is.

175:2 - 175:14 Myers, Brian 12-12-2019

 175 2 Q. Okay. So Mr. Burger sent you an e-mail

 175 3 and said: "combat arms plug."

 175 4 That's the subject line, correct?

 175 5 A. Yes.

 175 6 Q. And it -- it's an e-mail, it looks like,

 175 7 addressed to Armand.

 175 8 Do you see that?

 175 9 A. I do.

 175 10 Q. And what was ma- -- Mr. Dancer's first

 175 11 name?

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 24 of 67
Myers, Brian 12-12-2019 24

 175 12 A. Armand.

 175 13 Q. Okay. So this is a -- some correspondence

 175 14 with Armand Dancer that he is forwarding to you, 

fair?

176:2 - 176:5 Myers, Brian 12-12-2019

 176 2 I want to look at this communication that

 176 3 you got from Mr. Berger, Friday, November 19, 

1999,

 176 4 whether this was sent or whether it wasn't sent, you

 176 5 are not fussing with the fact that you got it, right?

Re: [176:2-176:9]

Def Objection - Foundation 

(602); Prejudice (403)

OVERRULED

176:8 - 177:5 Myers, Brian 12-12-2019

 176 8 A. So I don't recall receiving this.

 176 9 BY MR. BUCHANAN:

 176 10 Q. That is, was there another Brian Myers,

 176 11 sir, at Aearo?

 176 12 A. No. I'm just saying I don't recall

 176 13 receiving this.

 176 14 Q. Okay. Fair enough.

 176 15 I mean, you are not doubting that you did?

 176 16 A. I'm saying that I don't recall receiving

 176 17 this.

 176 18 Q. Okay.

 176 19 It says: "It recently occurred to us that

 176 20 we have no data on the actual version of the 

nonlinear

 176 21 earplug that we are now selling in the US - namely,

 176 22 the dual-ended combat arms plug."

 176 23 Did I read that correctly?

 176 24 A. Yes, those are the words in the document.

 176 25 Q. Okay. Does that help refresh your

 177 1 recollection, sir, that as of the date on the other

 177 2 document we were looking at, which happens to be 

the

 177 3 same date, you all had no data on the actual version

 177 4 of the Combat Arms Earplug that you were then 

selling

 177 5 in the United States?

Re: [176:2-176:9]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [176:10-176:13]

Def Objection - Foundation 

(602); Prejudice (403); 

Argumentative (611).

Re: [176:14-177:5]

602; argumentative; assumes 

facts; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 25 of 67
Myers, Brian 12-12-2019 25

177:9 - 177:11 Myers, Brian 12-12-2019

 177 9 A. I mean, Elliott says what he says. I

 177 10 don't -- I don't know -- I mean, that -- those are the

 177 11 words in the document.

Re: [177:9-177:11]

602; argumentative; assumes 

facts; 403

OVERRULED

177:17 - 177:19 Myers, Brian 12-12-2019

 177 17 Do you recall reviewing and signing off on

 177 18 it, sir?

 177 19 A. No, I don't recall this e-mail.

179:2 - 179:7 Myers, Brian 12-12-2019

 179 2 Q. Okay. And -- and the testing that was on

 179 3 hand at your company at the time when you were the

 179 4 vice president for this group, for the Combat Arms

 179 5 Earplug that was now being sold in the United States,

 179 6 was zero.

 179 7 That's what Mr. Berger said, right?

Re: [179:2-179:16]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [179:2-

179:16]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

179:11 - 179:21 Myers, Brian 12-12-2019

 179 11 A. He says: "It recently occurred to us that

 179 12 we have no data on the actual version of the 

nonlinear

 179 13 earplug that we are now selling in the US" --

 179 14 Q. Okay.

 179 15 A. -- "namely, the dual-ended combat arms

 179 16 plug."

 179 17 Q. Okay. And then he says what he is going

 179 18 to do, right?

 179 19 A. He says: "Therefore, we will be

 179 20 conducting REAT evaluations in the near future on 

both

 179 21 ends of the plug."

Re: [179:2-179:16]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [179:2-

179:16]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

Re: [179:17-179:21]

Foundation (602); Prejudice 

(403)

OVERRULED

181:6 - 181:9 Myers, Brian 12-12-2019

 181 6 Are you saying, sir, that you're

 181 7 comfortable as a manufacturer of hearing protection

 181 8 devices selling the military hearing protection that

 181 9 you've never tested?

Re: [181:6-181:15]

Def Objection - Prejudice (403); 

Foundation (602).

OVERRULED

181:12 - 181:15 Myers, Brian 12-12-2019

 181 12 A. I'm comfortable saying that I would have

 181 13 relied on our technical group to make sure whatever

 181 14 tests needed to be conducted would have been

 181 15 conducted.

Re: [181:6-181:15]

Def Objection - Prejudice (403); 

Foundation (602).

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 26 of 67
Myers, Brian 12-12-2019 26

183:6 - 183:13 Myers, Brian 12-12-2019

 183 6 Q. Okay. I'm just trying to find out as a

 183 7 human being, sir, not as a business manager, taking

 183 8 your business manager cap off, you're vice president

 183 9 trying to grow, what, revenues 25 percent a year,

 183 10 whatever your CV said, as a human being pushing 

out

 183 11 product into the market, you have no concern about

 183 12 selling a product designed to provide safety without

 183 13 confirming that it provides that safety?

Re: [183:6-183:13]

602; 701; 403; argumentative; 

confusing, Baker MIL 1

OVERRULED

183:17 - 183:21 Myers, Brian 12-12-2019

 183 17 A. I would have relied on the technical group

 183 18 to -- to do whatever tests were necessary.

 183 19 BY MR. BUCHANAN:

 183 20 Q. Uh-huh. That's kind of how we find

 183 21 ourselves here today, isn't it?

Re: [183:17-183:18]

602; 701; 403; argumentative; 

confusing, Baker MIL 1

Re: [183:20-183:21]

Confusing; vague; 

argumentative; 403

SUSTAINED as 

to 183:19-24. 

Otherwise 

OVERRULED.

183:24 - 183:24 Myers, Brian 12-12-2019

 183 24 A. I'm not sure I understand.

Re: [183:24-183:24]

Confusing; vague; 

argumentative; 403

SUSTAINED as 

to 183:19-24. 

Otherwise 

OVERRULED.

184:9 - 184:14 Myers, Brian 12-12-2019

 184 9 Q. This is a mess. You sold a product for

 184 10 15 years, you brought it to market, sold it to the

 184 11 public or sold it to purchasers without having testing

 184 12 on the actual product being sold. I'm calling that a

 184 13 mess.

 184 14 Do you agree with me?

Re: [184:9-184:14]

403; argumentative; 

mischaracterize record; Baker 

MIL 1

SUSTAINED as 

to “This is a 

mess.” 

Otherwise 

OVERRULED

184:17 - 184:19 Myers, Brian 12-12-2019

 184 17 A. I'm saying I would have relied on -- on

 184 18 technical to pro -- to -- to do whatever was necessary

 184 19 testing wise.

Re: [184:17-184:19]

403; argumentative; 

mischaracterize record; Baker 

MIL 1

OVERRULED

194:6 - 194:10 Myers, Brian 12-12-2019

 194 6 Q. Right. And -- and you knew not only did

 194 7 the company not have data, and the company was 

then

 194 8 going to start doing some REAT testing at that point

 194 9 in time, but you knew the military didn't have the

 194 10 resources to be doing testing on your plug, right?

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 27 of 67
Myers, Brian 12-12-2019 27

194:13 - 194:14 Myers, Brian 12-12-2019

 194 13 A. I'm not sure what testing the military may

 194 14 or may not have done.

194:17 - 194:20 Myers, Brian 12-12-2019

 194 17 (WHEREUPON, a certain document was

 194 18 marked Brian Myers Deposition Exhibit

 194 19 No. 14, for identification, as of

 194 20 12/12/2019.)

194:25 - 195:17 Myers, Brian 12-12-2019

 194 25 Q. I'll just pass you Exhibit 14, sir.

 195 1 A. Excuse me.

 195 2 Q. This is an e-mail exchange between

 195 3 yourself and a Robert Bosanko, right?

 195 4 Do you see that here at the bottom? If we

 195 5 read the bottom to the top, it is 11/3/99, right?

 195 6 A. I see this Robert Bosanko down here at the

 195 7 bottom, an e-mail.

 195 8 Q. Yeah, Robert reaches out to you and says:

 195 9 "Brian, I need to get all of the specs/data on the

 195 10 combat arms earplug," right?

 195 11 A. "Brian, I need to get all the specs/data

 195 12 on the combat arms earplug," yes, sir.

 195 13 Q. Yeah. "I am going to use them with (sic)

 195 14 one of our artillery units on post to test/use the

 195 15 nonlinear plug and get feedback from them."

 195 16 Is that right?

 195 17 A. That's what that says.

Re: [195:8-195:17]

Def Objection - Hearsay (801, 

802)

OVERRULED

196:17 - 197:25 Myers, Brian 12-12-2019

 196 17 The middle e-mail is: "What follows is

 196 18 correspondence I received from Robert Bosanko. He 

has

 196 19 requested specs/data on the new earplug. Could you

 196 20 possibly send him some of the test results from your

 196 21 studies?"

 196 22 Do you see that?

 196 23 A. I do see those words, yes.

 196 24 Q. Okay. And Doug Ohlin re -- replies to

 196 25 you, doesn't he?

 197 1 I mean, he replies to "Brain" which I --

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 28 of 67
Myers, Brian 12-12-2019 28

 197 2 A. Yeah.

 197 3 Q. -- suppose would be a compliment, but

 197 4 misspelling your name, correct, sir, Brian?

 197 5 A. Yes.

 197 6 Q. Okay. He replies to you on November 8,

 197 7 1999: "I'm at something of a loss to know what

 197 8 studies I have done or am capable of doing in this

 197 9 pay-shuffling operation at CHPPM."

 197 10 Did I read that correctly?

 197 11 A. That's what Doug says.

 197 12 Q. Okay. And then he talks about getting

 197 13 through to Rick McKinley or Rich McKinley on 

samples

 197 14 of the Sound Guard foam plug.

 197 15 Do you see that?

 197 16 A. I do.

 197 17 Q. It talks about what his lab is capable of

 197 18 doing, right?

 197 19 A. It -- the words -- it says: "His Lab

 197 20 appears to be the only one capable in DoD at this

 197 21 time."

 197 22 Q. Right. And then he tells you that: "My

 197 23 colleagues in Army R&D have chosen not to staff 

this

 197 24 capability," right?

 197 25 A. That's the -- those are the words, yes.

203:19 - 203:24 Myers, Brian 12-12-2019

 203 19 Q. Okay. Passing you, sir, what we are

 203 20 marking as Exhibit 15 to your deposition. And

 203 21 Exhibit 15, marked P2017 with an alternate number 

is a

 203 22 chapter from a -- chapter from a textbook written by

 203 23 your colleague in technical, Elliott Berger.

 203 24 Do you have that before you, sir?

204:16 - 204:24 Myers, Brian 12-12-2019

 204 16 This paragraph and the chapter written by

 204 17 Dr. Berger -- or Mr. Berger in the book edited by

 204 18 Mr. Berger describes real-ear attenuation at threshold

 204 19 as follows."

Re: [204:16-206:24]

Def Objection - Foundation 

(602); Prejudice (403); Hearsay 

(801, 802)

Re: [204:13-

206:1]

Def Objection -

Foundation 

(602); Prejudice 

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 29 of 67
Myers, Brian 12-12-2019 29

 204 20 "The most common, and one of the most

 204 21 accurate HPD attenuation tests is the measurement of

 204 22 real-ear attenuation at threshold, abbreviated REAT."

 204 23 Do you see that, sir?

 204 24 A. I do see those words.

(403); Hearsay 

(801, 802)

OVERRULED

Re: [206:11-

206:17]

Def Objection -

Foundation 

(602); Prejudice 

(403) Hearsay 

(801, 802)

OVERRULED

Re: [206:18-

206:19]

Def Objection -

Foundation 

(602); 

Ambiguous 

(611, 403)

OVERRULED

Re: [206:22-

206:24]

Def Objection -

403; Foundation 

(602); 

Ambiguous 

(611, 403)

OVERRULED

206:12 - 206:19 Myers, Brian 12-12-2019

 206 12 It continues: "REAT data are normally

 206 13 viewed as the gold standard to which all other types

 206 14 of measurements of attenuation are compared."

 206 15 Did I read that correctly?

 206 16 A. You did. Those are the words in the

 206 17 document.

 206 18 Q. And you have that understanding, don't

 206 19 you, sir?

Re: [204:16-206:24]

Def Objection - Foundation 

(602); Prejudice (403); Hearsay 

(801, 802)

Re: [206:12-206:19]

Def Objection - Foundation 

(602); Prejudice (403) Hearsay 

(801, 802)

Re: [206:18-206:19]

Def Objection - Foundation 

(602); Ambiguous (611, 403)

Re: [204:13-

206:1]

Def Objection -

Foundation 

(602); Prejudice 

(403); Hearsay 

(801, 802)

OVERRULED

Re: [206:11-

206:17]

Def Objection -

Foundation 

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 30 of 67
Myers, Brian 12-12-2019 30

(602); Prejudice 

(403) Hearsay 

(801, 802)

OVERRULED

Re: [206:18-

206:19]

Def Objection -

Foundation 

(602); 

Ambiguous 

(611, 403)

OVERRULED

Re: [206:22-

206:24]

Def Objection -

403; Foundation 

(602); 

Ambiguous 

(611, 403)

OVERRULED

206:22 - 206:24 Myers, Brian 12-12-2019

 206 22 A. I don't know what he means by gold

 206 23 standard. I would want him to define that, but

 206 24 I'll -- I'll take his words.

Re: [204:16-206:24]

Def Objection - Foundation 

(602); Prejudice (403); Hearsay 

(801, 802)

Re: [206:22-206:24]

Def Objection - 403; Foundation 

(602); Ambiguous (611, 403)

Re: [204:13-

206:1]

Def Objection -

Foundation 

(602); Prejudice 

(403); Hearsay 

(801, 802)

OVERRULED

Re: [206:11-

206:17]

Def Objection -

Foundation 

(602); Prejudice 

(403) Hearsay 

(801, 802)

OVERRULED

Re: [206:18-

206:19]

Def Objection -

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 31 of 67
Myers, Brian 12-12-2019 31

Foundation 

(602); 

Ambiguous 

(611, 403)

OVERRULED

Re: [206:22-

206:24]

Def Objection -

403; Foundation 

(602); 

Ambiguous 

(611, 403)

OVERRULED

207:2 - 207:9 Myers, Brian 12-12-2019

 207 2 "Virtually all available manufacturers'

 207 3 reported data have been derived via this method, and

 207 4 it is this procedure that is required by the EPA to

 207 5 obtain data for compute" -- "computation of the

 207 6 NRR (EPA, 1979)."

 207 7 Do you see that, sir?

 207 8 A. I do see that.

 207 9 Q. And that's your understanding, right?

Re: [207:2-207:9]

Def Objection - Foundation 

(602); Prejudice (403); Hearsay 

(801, 802)

OVERRULED

207:12 - 207:12 Myers, Brian 12-12-2019

 207 12 A. That's what Elliott wrote.

Re: [207:12-207:18]

Def Objection - Foundation 

(602); Prejudice (403); 

Ambiguous (611, 403)

OVERRULED

207:14 - 207:18 Myers, Brian 12-12-2019

 207 14 Q. Okay. And so when we talk about REAT

 207 15 testing, REAT testing is done with a real human 

being?

 207 16 A. That -- the -- so real-ear attenuation at

 207 17 threshold, the real-ear, I think, means a real human

 207 18 being.

Re: [207:12-207:18]

Def Objection - Foundation 

(602); Prejudice (403); 

Ambiguous (611, 403)

OVERRULED

207:19 - 208:7 Myers, Brian 12-12-2019

 207 19 Q. Well, you've seen this testing occur,

 207 20 haven't you?

 207 21 A. Have I seen it occur?

 207 22 Q. Yes.

 207 23 A. Well, I don't think I've ever observed a

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 32 of 67
Myers, Brian 12-12-2019 32

 207 24 REAT test.

 207 25 Q. You've never observed a REAT test in the

 208 1 lab at Aearo over the years during your, what,

 208 2 15 years there in Indianapolis?

 208 3 A. I don't recall ever having observed it.

 208 4 Q. Okay. I take it, then, you never observed

 208 5 any tests that were conducted on the Combat Arms?

 208 6 A. I don't recall observing any Combat Arms

 208 7 tests.

218:24 - 219:3 Myers, Brian 12-12-2019

 218 24 Q. And you know that one of the end outputs

 218 25 of a real-ear attenuation threshold test is an NRR,

 219 1 correct, sir?

 219 2 A. So my understanding is that such a test is

 219 3 required to create an NRR.

220:15 - 220:25 Myers, Brian 12-12-2019

 220 15 Q. Right. And that's -- that's what you do

 220 16 in a REAT test, right, you identify the attenuation

 220 17 that a hearing protection device provides across

 220 18 frequencies and the EPA all -- gives you all a 

formula

 220 19 to synthesize that into a number, right, called the

 220 20 NRR?

 220 21 A. I know that that's the testing that you

 220 22 are supposed to do that gets that NRR number.

 220 23 Q. And -- and NRRs, really, from your

 220 24 perspective on the business side are a big deal,

 220 25 right?

Re: [220:23-220:25]

Def Objection - 403

Re: [220:23-

221:5]

Def Objection -

403

OVERRULED

221:4 - 221:5 Myers, Brian 12-12-2019

 221 4 A. They are often an important characteristic

 221 5 that -- in the selection of the hearing protector.

Re: [221:4-221:5]

Def Objection - 403

Re: [220:23-

221:5]

Def Objection -

403

OVERRULED

221:8 - 221:8 Myers, Brian 12-12-2019

 221 8 A. One of them.

221:10 - 221:11 Myers, Brian 12-12-2019

 221 10 A. They are one of the characteristics that

 221 11 are -- are often considered.

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 33 of 67
Myers, Brian 12-12-2019 33

221:12 - 221:14 Myers, Brian 12-12-2019

 221 12 Q. I mean, you know just from a marketing

 221 13 perspective, sir, people shop on the basis of NRR,

 221 14 right?

Re: [221:12-221:14]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [221:12-

221:14]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

221:17 - 221:19 Myers, Brian 12-12-2019

 221 17 A. I -- I think it's an important

 221 18 characteristic in the marketing of the hearing

 221 19 protector.

Re: [221:17-221:19]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [221:17-

221:19]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

222:15 - 222:17 Myers, Brian 12-12-2019

 222 15 Q. And from your experience, sir, you know

 222 16 that one of the characteristics that purchasers shop

 222 17 on is NRR, right?

Re: [222:15-222:17]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [222:15-

222:17]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

222:20 - 222:21 Myers, Brian 12-12-2019

 222 20 A. So it -- it can be a very important

 222 21 consideration in the purchase.

Re: [222:20-222:21]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [222:20-

222:21]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

224:6 - 224:10 Myers, Brian 12-12-2019

 224 6 Q. And I think you told us it is an important

 224 7 one, right?

 224 8 A. It can be important to some customers.

 224 9 Q. Well, certainly it was No. 1 on your list,

 224 10 right?

224:13 - 224:14 Myers, Brian 12-12-2019

 224 13 Q. Right?

 224 14 A. Not necessarily.

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 34 of 67
Myers, Brian 12-12-2019 34

238:5 - 238:7 Myers, Brian 12-12-2019

 238 5 The number, an NRR, is something that is

 238 6 generated by REAT testing pursuant to EPA 

regulations,

 238 7 fair?

Re: [238:5-238:11]

602; 701

OVERRULED

238:10 - 238:18 Myers, Brian 12-12-2019

 238 10 A. So my understanding is that the NRR is

 238 11 defined by the EPA and calculated from a REAT 

test.

 238 12 BY MR. BUCHANAN:

 238 13 Q. And you understand from your technical

 238 14 lead, Mr. Berger, that it's intended to protect --

 238 15 intended to predict the protection that is achieved by

 238 16 98 percent of wearers, right?

 238 17 That's what he wrote.

 238 18 A. That's what the document says, yes.

Re: [238:5-238:11]

602; 701

Re: [238:13-238:18]

602; 701; hearsay

OVERRULED

239:7 - 239:10 Myers, Brian 12-12-2019

 239 7 Q. Apart from the time they supervised

 239 8 retesting of your ear foamies and fined you all

 239 9 $900,000 for NRR fraud, what other time had the 

EPA

 239 10 tested Aearo's products?

239:14 - 239:16 Myers, Brian 12-12-2019

 239 14 A. I guess I don't know when the EPA tested

 239 15 or if they tested other products. I think that was

 239 16 your question.

240:4 - 240:12 Myers, Brian 12-12-2019

 240 4 Q. You don't remember your company getting

 240 5 the largest fine ever for violation of the Noise

 240 6 Control Act?

 240 7 A. So I recall that there was a EPA complaint

 240 8 and -- and I -- I wasn't really involved with that at

 240 9 the time. I was a production manager, so it didn't

 240 10 have -- it wasn't -- it wasn't anything that I was

 240 11 involved with, so I -- I don't think I knew about

 240 12 whatever you are talking about.

Re: [240:4-240:12]

3M MIL 8; 403; 401; Baker 

MIL 1

OVERRULED

240:24 - 241:23 Myers, Brian 12-12-2019

 240 24 Q. Okay. I'm passing you what's marked

 240 25 Exhibit 20, sir. It is a press release from the

Re: [240:24-241:23]

3M MIL 8; 403; 401; Baker 

MIL 1; hearsay

OVERRULED. 

See ECF 146.

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 35 of 67
Myers, Brian 12-12-2019 35

 241 1 Department of Justice.

 241 2 I guess it is about four months into your

 241 3 tenure as -- well, I guess we doesn't know what your

 241 4 position was at that point in time. Your CV or 

resume

 241 5 says you are the Vice President for Passive Hearing

 241 6 Devices.

 241 7 In April of 1993, sir, were ear foamies a

 241 8 passive hearing protection device?

 241 9 A. In 1993 we sold a plug called the E-A-R

 241 10 foam earplug.

 241 11 Q. And you all got sideways with the EPA on

 241 12 that one, right?

 241 13 A. There was an, I think, an EPA complaint or

 241 14 an EPA action.

 241 15 Q. Okay. And please tell the jury whether or

 241 16 not you got fined?

 241 17 A. So my recollection is that we paid some --

 241 18 the money that I think you just quoted and settled the

 241 19 suit. I -- I don't know that there was a -- that it's

 241 20 fair to say that we were fined. I'd have to read this

 241 21 to see if those words are in here.

 241 22 Q. Okay. We'll say civil penalty.

 241 23 Does that sound like a good thing, sir?

242:2 - 242:12 Myers, Brian 12-12-2019

 242 2 A. It does say, I -- I see in the first

 242 3 paragraph, "will pay a $900,000 civil penalty to

 242 4 settle allegations."

 242 5 BY MR. BUCHANAN:

 242 6 Q. Right.

 242 7 So you all paid a $900,000 fine for having

 242 8 an NRR on this passive hearing protection device in

 242 9 the group that you then oversaw that when the EPA 

went

 242 10 and looked at it and tested it or oversaw the testing

 242 11 of it, the testing didn't support that quoted NRR,

 242 12 right?

Re: [242:2-242:12]

602; 3M MIL 8; 403; 401; Baker 

MIL 1; hearsay

OVERRULED. 

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 36 of 67
Myers, Brian 12-12-2019 36

242:16 - 242:25 Myers, Brian 12-12-2019

 242 16 A. Again, I don't know.

 242 17 BY MR. BUCHANAN:

 242 18 Q. Well, I'm sorry, sir. Did you have

 242 19 responsibility for passive hearing protection products

 242 20 in 1993 at the time when this press release came 

down?

 242 21 A. I believe I started as the -- as a product

 242 22 manager in January of '93, according to my CV.

 242 23 Q. Okay. Product manager in passive hearing

 242 24 protection devices?

 242 25 A. Yes.

Re: [242:16-242:16]

602; 3M MIL 8; 403; 401; Baker 

MIL 1; hearsay

Re: [242:18-242:25]

403; 401; 3M MIL 8; Baker 

MIL 1

OVERRULED

244:6 - 244:7 Myers, Brian 12-12-2019

 244 6 Q. Not a good thing?

 244 7 A. I think a press release.

Re: [244:6-244:7]

Vague; confusing; 3M MIL 8; 

hearsay; 401; 403, Baker MIL 1

OVERRULED

244:11 - 244:17 Myers, Brian 12-12-2019

 244 11 Q. Right?

 244 12 A. I don't think anybody likes to pay a fine.

 244 13 Q. No, I wasn't talking about the fine, sir.

 244 14 I was talking that you are promoting a product with 

an

 244 15 NRR that you can't substantiate when the EPA is

 244 16 actually watching over your shoulder. That's what 

I'm

 244 17 talking about not being a good thing.

Re: [244:11-244:17]

3M MIL 8; Baker MIL 1; 

hearsay, 401; 403

OVERRULED

244:24 - 244:25 Myers, Brian 12-12-2019

 244 24 A. Well, we paid a civil penalty as a -- as a

 244 25 result. I don't know the details.

Re: [244:24-244:25]

106; incomplete; asked and 

answered; 403; Baker MIL 1; 

3M MIL 8

OVERRULED

245:24 - 246:2 Myers, Brian 12-12-2019

 245 24 Q. To be quoting an NRR -- to be quoting an

 245 25 NRR that when someone independent of you is 

actually

 246 1 looking over your shoulder you can't meet, that's not

 246 2 a good thing, right?

Re: [245:24-246:2]

Def Objection - Foundation 

(602); Prejudice (403); (611); 

MIL 8

Re: [245:24-246:2]

Baker MIL 1

OVERRULED

246:6 - 246:12 Myers, Brian 12-12-2019

 246 6 A. I don't know the details of the situation.

 246 7 BY MR. BUCHANAN:

 246 8 Q. Sir, you put NRRs out there so that people

Re: [246:6-246:6]

Def Objection - Foundation 

(602); Prejudice (403); (611); 

MIL 8

Re: [246:8-

246:17]

Def Objection -

MIL 8; 

Re: [246:6-246:12]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 37 of 67
Myers, Brian 12-12-2019 37

 246 9 making purchasing decisions and safety decisions and

 246 10 protection decisions for their workers and for

 246 11 themselves can make proper judgments about 

whether

 246 12 they are going to be protected, right?

Re: [246:8-246:17]

Def Objection - MIL 8; 

Foundation (602); Compound 

(611, 403)

Foundation 

(602); 

Compound (611, 

403)

OVERRULED

246:15 - 246:21 Myers, Brian 12-12-2019

 246 15 A. So we label our products as is

 246 16 appropriate, I believe, based on input from the

 246 17 technical group.

 246 18 BY MR. BUCHANAN:

 246 19 Q. Well, obviously not here, right?

 246 20 A. Again, I -- I don't know the specifics of

 246 21 this situation.

Re: [246:8-246:17]

Def Objection - MIL 8; 

Foundation (602); Compound 

(611, 403)

Re: [246:19-246:22]

Def Objection - Prejudice (403); 

MIL 8; Foundation (602); 

Argumentative (611, 403); (611)

Re: [246:8-

246:17]

Def Objection -

MIL 8; 

Foundation 

(602); 

Compound (611, 

403)

OVERRULED

Re: [246:19-

246:22]

Def Objection -

Prejudice (403); 

MIL 8; 

Foundation 

(602); 

Argumentative 

(611, 403); 

(611)

SUSTAINED

Re: [246:15-246:21]

Baker MIL 1

OVERRULED 

248:1 - 248:3 Myers, Brian 12-12-2019

 248 1 Q. Are you telling this jury, sir, that you

 248 2 are not aware of a concern with the NRR that 

appeared

 248 3 on the Combat Arms?

Re: [248:1-248:9]

Def Objection - Vague; 

Ambiguous (611, 403)

Re: [248:1-

248:9]

Def Objection -

Vague; 

Ambiguous 

(611, 403)

OVERRULED

248:7 - 248:19 Myers, Brian 12-12-2019

 248 7 A. So there -- I recall that there was a

 248 8 technical concern that was raised around the NRR

 248 9 number.

 248 10 BY MR. BUCHANAN:

 248 11 Q. And what's that, sir?

 248 12 A. I'd have to look at the -- the memo to --

Re: [248:1-248:9]

Def Objection - Vague; 

Ambiguous (611, 403)

Re: [248:1-

248:9]

Def Objection -

Vague; 

Ambiguous 

(611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 38 of 67
Myers, Brian 12-12-2019 38

 248 13 to recall, but there was a technical concern that was

 248 14 raised about the NRR.

 248 15 Q. And what was that concern?

 248 16 A. I don't recall the specific -- there was a

 248 17 technical concern that was raised, I recall.

 248 18 Q. Okay. When was it raised?

 248 19 A. I don't recall the timing either.

249:16 - 250:3 Myers, Brian 12-12-2019

 249 16 Q. So let's see if we can get to the bottom

 249 17 of this, sir.

 249 18 November 1999 you reach out to Doug Ohlin

 249 19 and say, Hey, Doug, could you send me some of 

your

 249 20 tests, pass those along.

 249 21 Do you recall that e-mail we looked at

 249 22 earlier today?

 249 23 A. I recall that e-mail.

 249 24 Q. Then we get a draft e-mail from Mr. Berger

 249 25 going to Armand Dancer that Dr. Berger -- Mr. 

Berger

 250 1 has said it was for your review before he sent it. It

 250 2 says, We have no data on the plug we are currently

 250 3 selling.

Re: [249:16-250:3]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [249:16-

250:4]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

250:8 - 250:10 Myers, Brian 12-12-2019

 250 8 A. I remember you sharing with me a -- an

 250 9 e-mail that you represented as a draft that Elliott

 250 10 had created.

Re: [250:8-250:10]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [250:7-

250:10]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

251:3 - 251:6 Myers, Brian 12-12-2019

 251 3 Q. Okay. And so you're selling the product,

 251 4 you don't have test data, Doug Ohlin says he doesn't

 251 5 have resources in his lab. So you are all in a bit of

 251 6 a scramble at this point, right?

Re: [251:3-251:6]

Def Objection - Foundation 

(602); Prejudice (403); 

Argumentative (611).

OVERRULED

251:10 - 251:11 Myers, Brian 12-12-2019

 251 10 A. Well, Elliott said that he would begin

 251 11 some testing, if I recall the memo correctly.

Re: [251:10-251:11]

Def Objection - Foundation 

(602); Prejudice (403); 

Argumentative (611).

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 39 of 67
Myers, Brian 12-12-2019 39

253:14 - 253:17 Myers, Brian 12-12-2019

 253 14 You are aware, sir, that after that point

 253 15 in time, late '99, the technical group to which you

 253 16 have been referring set about to develop some data

 253 17 actually on people, right?

Re: [253:14-253:17]

Def Objection - Prejudice (403); 

Foundation (602); Vague, 

Ambiguous (611, 403); (611)

OVERRULED

253:21 - 253:24 Myers, Brian 12-12-2019

 253 21 Q. With the Combat Arms?

 253 22 A. So in November of '99 Elliott wrote:

 253 23 "Therefore, we will begin conducting REAT 

evaluations

 253 24 in the near future on both ends of the plug."

Re: [253:21-253:24]

Def Objection - Prejudice (403); 

Foundation (602); Vague, 

Ambiguous (611, 403); (611)

OVERRULED

264:12 - 264:14 Myers, Brian 12-12-2019

 264 12 Q. So some studies are done, some tests are

 264 13 done on these devices, and you've got some real

 264 14 problems, right?

Re: [264:12-264:14]

Def Objection - Foundation 

(602); Prejudice (403); (611).

Re: [264:12-

264:14]

Def Objection -

Foundation 

(602); Prejudice 

(403); (611).

OVERRULED

264:21 - 264:21 Myers, Brian 12-12-2019

 264 21 A. There were some technical concerns.

Re: [264:21-264:21]

Def Objection - Foundation 

(602); Prejudice (403); (611).

Re: [264:21-

264:24]

Def Objection -

Foundation 

(602); Prejudice 

(403); (611).

OVERRULED

266:12 - 266:16 Myers, Brian 12-12-2019

 266 12 Q. This is Exhibit 22 to your deposition,

 266 13 sir. And so this is fast forward from that late

 266 14 November timeline where you had no data to the 

period

 266 15 of time six months later that now you do have some

 266 16 data, right?

Re: [266:12-266:21]

Def Objection - Misstates (611, 

403); 602; 403.

Re: [266:12-

266:21]

Def Objection -

Misstates (611, 

403); 602; 403.

OVERRULED

266:21 - 268:1 Myers, Brian 12-12-2019

 266 21 A. This e-mail is dated May of 2000.

 266 22 BY MR. BUCHANAN:

 266 23 Q. Right. And it is an e-mail from Elliott

 266 24 Berger to you, and it says: "REAT on the combat

 266 25 arms," right?

 267 1 A. That's the subject line.

Re: [266:12-266:21]

Def Objection - Misstates (611, 

403); 602; 403.

Re: [267:24-268:1]

Def Objection - Relevance (401, 

402); 403.

Re: [266:12-

266:21]

Def Objection -

Misstates (611, 

403); 602; 403.

OVERRULED

Re: [266:23-267:23]

403

Re: [266:23-267:23]

403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 40 of 67
Myers, Brian 12-12-2019 40

 267 2 Q. "Here are data on the UltraFit end of the

 267 3 combat arms."

 267 4 UltraFit end of the Combat Arms you've

 267 5 also seen referred to, the green end, right?

 267 6 A. I think that's the end he is talking

 267 7 about.

 267 8 Q. Okay. I'd like to focus, please, on

 267 9 the -- the last sentence here.

 267 10 Mr. Berger said: "The existing product

 267 11 has problems."

 267 12 Do you see that?

 267 13 A. I do see that -- those words there.

 267 14 Q. Okay. You've deferred a lot throughout

 267 15 the day to your technical people, right?

 267 16 A. They are responsible for all of the

 267 17 technical aspects.

 267 18 Q. And a technical person reached out to you

 267 19 in May 12 of 2000 and said: "It looks like the

 267 20 existing product has problems," right?

 267 21 A. Elliott says in his memo: "It looks like

 267 22 the existing product has problems unless the user

 267 23 instructions are revised."

 267 24 Q. Right. Right. And he tells you something

 267 25 else. He said this wasn't the first time you tested

 268 1 the product, right?

Re: [267:24-

268:11]

Def Objection -

Relevance (401, 

402); 403.

OVERRULED

268:5 - 268:6 Myers, Brian 12-12-2019

 268 5 Q. It wasn't the first REAT study you had

 268 6 done on the UltraFit end of the Combat Arms, right?

268:10 - 268:11 Myers, Brian 12-12-2019

 268 10 A. So in this e-mail it mentions an original

 268 11 study and a second study.

268:14 - 268:14 Myers, Brian 12-12-2019

 268 14 A. If that's what you mean.

269:12 - 269:13 Myers, Brian 12-12-2019

 269 12 Q. What was the NRR in the first study that

 269 13 they stopped at eight, sir?

269:17 - 269:18 Myers, Brian 12-12-2019

 269 17 A. If I recall the memo, it said, after eight

 269 18 subjects it was an 11.

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 41 of 67
Myers, Brian 12-12-2019 41

270:1 - 270:2 Myers, Brian 12-12-2019

 270 1 A. I -- I think there was more to this

 270 2 document than just this, but...

Re: [270:1-270:2]

improper counter; not 

responsive to any question

SUSTAINED

272:18 - 272:23 Myers, Brian 12-12-2019

 272 18 Q. I'm going to pass you, sir, what we are

 272 19 marking as Exhibit 23 to your deposition.

 272 20 (WHEREUPON, a certain document was

 272 21 marked Brian Myers Deposition Exhibit

 272 22 No. 23, for identification, as of

 272 23 12/12/2019.)

273:19 - 274:13 Myers, Brian 12-12-2019

 273 19 Q. That's a memo from Mr. Kieper to

 273 20 Mr. Berger?

 273 21 A. It is, dated May the 11th, 2000.

 273 22 Q. And is that consistent with your

 273 23 recollection, sir, when you became aware of the 

REAT

 273 24 testing with the Combat Arms?

 273 25 A. I don't have specific recollection of

 274 1 those dates.

 274 2 Q. Okay. "The initial test 213015 was

 274 3 stopped after eight subjects because the results were

 274 4 variable and the NRR was quite low."

 274 5 Did I read that correctly?

 274 6 A. "The initial" -- yes. It says: "The

 274 7 initial test 213015 was stopped after eight subjects

 274 8 because the results were variable and the NRR was

 274 9 quite low (11)."

 274 10 Q. And you would agree, sir, that an NRR of

 274 11 11 is quite low for a product designed to provide

 274 12 continuous hearing protection in the environments 

you

 274 13 were targeting for this use?

Re: [273:19-274:13]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [273:19-

274:13]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

274:17 - 274:23 Myers, Brian 12-12-2019

 274 17 A. So I couldn't speak to what customers

 274 18 needed in terms of that, but clearly he is raising

 274 19 this -- this issue as a technical concern.

 274 20 BY MR. BUCHANAN:

 274 21 Q. Do you have that concern, sir, that an 11

Re: [274:17-274:23]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [274:17-

274:23]

Def Objection -

Foundation 

(602); Prejudice 

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 42 of 67
Myers, Brian 12-12-2019 42

 274 22 would be too low for a product designed to provide

 274 23 continuous protection from noise?

(403)

OVERRULED

275:1 - 275:6 Myers, Brian 12-12-2019

 275 1 A. Yeah, I'm not sure I'd share that concern

 275 2 unless technical called it out as a concern, which

 275 3 they did.

 275 4 BY MR. BUCHANAN:

 275 5 Q. Okay. So you'd agree, sir, that that 11

 275 6 is a problem, right?

Re: [275:1-275:6]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [275:1-

275:6]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

275:10 - 275:11 Myers, Brian 12-12-2019

 275 10 A. Technical raised it as a technical

 275 11 concern.

Re: [275:10-275:11]

Def Objection - Foundation 

(602); Ambiguous (611, 4-03); 

Prejudice (403)

Re: [275:10-

275:11]

Def Objection -

Foundation 

(602); 

Ambiguous 

(611, 4-03); 

Prejudice (403)

OVERRULED

276:17 - 276:22 Myers, Brian 12-12-2019

 276 17 Q. You don't remember technical asking you

 276 18 that question, will this NRR work?

 276 19 A. Are we talking about the Combat Arms

 276 20 Earplug now?

 276 21 Q. No. We are talking about with passive

 276 22 hearing protection, sir.

Re: [276:17-276:22]

403

OVERRULED

277:1 - 277:2 Myers, Brian 12-12-2019

 277 1 A. I don't recall that, any question like

 277 2 that specifically.

Re: [277:1-277:2]

403

OVERRULED

277:9 - 277:23 Myers, Brian 12-12-2019

 277 9 Q. I am passing you, sir, what we are marking

 277 10 as 24 to your deposition. It is P1377, alternately

 277 11 labeled.

 277 12 It is an e-mail from 2007 from Jeff Hamer

 277 13 to Elliott Berger and Ron Kieper.

 277 14 Do you see that?

 277 15 A. I do see that.

 277 16 Q. And there is an exchange going on here.

 277 17 Do you see that, beginning at the bottom

 277 18 between Mr. Kieper and others?

Re: [277:9-277:23]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 43 of 67
Myers, Brian 12-12-2019 43

 277 19 A. I see Ron Kieper wrote something

 277 20 June 21st, 2007, Jeff Hamer June 22nd, it looks like I

 277 21 wrote something -- it is hard to follow -- June 22nd,

 277 22 and then, finally, in the e-mail stream Jeff Hamer

 277 23 wrote something June 22nd.

278:19 - 279:19 Myers, Brian 12-12-2019

 278 19 Q. Okay. We see Jeff Hamer, and what's his

 278 20 role at this point in time, sir?

 278 21 A. I -- I've only ever known Jeff as the

 278 22 technical manager.

 278 23 Q. Okay. Technical manager of the lab?

 278 24 A. Of all technical, including the lab.

 278 25 Q. Okay. Senior to Mr. Berger?

 279 1 A. I think he probably would have been

 279 2 Mr. Berger's supervisor.

 279 3 Q. Okay. Mr. Hamer comments: "Well...NRR is

 279 4 pretty low at 9 dBs...acceptable??" with a question

 279 5 mark.

 279 6 Do you see that?

 279 7 A. I do see that Jeff made that comment.

 279 8 Q. And by 6 --

 279 9 A. Or asked that question.

 279 10 Q. By 6/22/2007 at 8:03 a.m., that's

 279 11 15 minutes later, 16 minutes later, something like

 279 12 that, you've captured this question and you say what,

 279 13 sir?

 279 14 A. I -- I wrote: "Doubt it. Could you have

 279 15 one of your engineers take a look at the attachment

 279 16 mechanism and imagine how we might be able to 

include

 279 17 a small foam grommet or other item to block the

 279 18 opening at the tube attachment point so that we 

might

 279 19 be able to get better attenuation?"

Re: [278:19-279:19]

3M MIL 18; 401; 403

OVERRULED

280:1 - 280:11 Myers, Brian 12-12-2019

 280 1 Q. Mr. Hamer asks you about the NRR, right?

 280 2 A. Again, hard to follow, but I've replied

 280 3 to: "Well...NRR is pretty low at 9 dB...acceptable??"

 280 4 Q. And your first sentence is what, sir?

Re: [280:1-280:10]

3M MIL 18; 401; 403; 602

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 44 of 67
Myers, Brian 12-12-2019 44

 280 5 A. "Doubt it."

 280 6 Q. Okay. And then this looks like it was

 280 7 a -- and then there is a further response from

 280 8 Mr. Hamer saying, hmm: "In hind sight, we probably

 280 9 should have gone 5 subjects and produced an interim

 280 10 report."

 280 11 Right?

280:14 - 280:21 Myers, Brian 12-12-2019

 280 14 A. So I see that on this e-mail chain.

 280 15 BY MR. BUCHANAN:

 280 16 Q. Right.

 280 17 A. I'm not sure I was copied on that. But --

 280 18 Q. So 9 dB --

 280 19 A. -- it's hard to tell.

 280 20 Q. 9 dB, at least in this circumstance, is

 280 21 not acceptable, right?

Re: [280:14-280:14]

3M MIL 18; 401; 403; 602

Re: [280:17-280:21]

3M MIL 18; 401; 403; 602

OVERRULED

280:24 - 280:24 Myers, Brian 12-12-2019

 280 24 A. That was the comment that I made.

Re: [280:24-280:24]

3M MIL 18; 401; 403; 602

OVERRULED

281:25 - 282:9 Myers, Brian 12-12-2019

 281 25 Q. Okay. And I'm asking you, sir, because

 282 1 you were looped in on this, correct?

 282 2 A. I was copied on this, on this memo from

 282 3 Ron to Elliott.

 282 4 Q. Did you have any reason to disagree with

 282 5 them, sir, that an 11 NRR was unacceptable?

 282 6 A. I don't know. It was a technical concern

 282 7 that was raised.

 282 8 Q. And the technical concern was they don't

 282 9 stay in the ears, stay sealed, right?

Re: [281:25-282:9]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [281:25-

282:9]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

282:14 - 282:24 Myers, Brian 12-12-2019

 282 14 A. So what Ron says is he was concerned

 282 15 because the results were variable and the NRR was

 282 16 quite low.

 282 17 BY MR. BUCHANAN:

 282 18 Q. Oh, I'm sorry, sir. Do you see the next

 282 19 paragraph where he now said: "It was difficult to fit

 282 20 the plug deeply into some subjects earcanals

 282 21 especially those subjects with medium and larger

 282 22 earcanals."

Re: [282:14-282:24]

Def Objection - Foundation 

(602); Prejudice (403); (611, 

403)

Re: [282:14-

283:15]

Def Objection -

Foundation 

(602); Prejudice 

(403); (611, 

403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 45 of 67
Myers, Brian 12-12-2019 45

 282 23 Did I read that correctly, sir?

 282 24 A. Yeah, that's what the document says.

283:22 - 284:5 Myers, Brian 12-12-2019

 283 22 Q. And I'm just trying to understand that,

 283 23 sir, because from a marketing perspective, it is not

 283 24 just a technical concern if your product doesn't

 283 25 provide protection, it's a sales concern if your

 284 1 product doesn't provide protection, right? Can we

 284 2 agree on that?

 284 3 A. Well, he has raised it as a technical

 284 4 concern. I saw it as a technical issue that they

 284 5 needed to -- to resolve or take action on.

Re: [283:22-284:5]

Def Objection - Foundation 

(602); ambiguous (611, 403); 

Prejudice (403)

Re: [283:19-

284:11]

Def Objection -

Foundation 

(602); 

ambiguous (611, 

403); Prejudice 

(403)

OVERRULED

284:20 - 284:24 Myers, Brian 12-12-2019

 284 20 Q. Tell us what you did, sir. Tell us what

 284 21 you did when you found out that your technical team

 284 22 was telling you that it appeared your product had

 284 23 problems. I'd like to know what Brian Myers did.

 284 24 A. I don't clearly recall what I did.

Re: [284:20-285:24]

Def Objection - Foundation 

(602); Prejudice (403); Attorney 

Commentary; argumentative; 

misstates evidence (611, 403)

Re: [284:16-

285:3]

Def Objection -

Foundation 

(602); Prejudice 

(403); Attorney 

Commentary; 

argumentative; 

misstates 

evidence (611, 

403)

SUSTAINED 

as to “I’d like 

to know what 

Brian Myers 

did.” Otherwise 

OVERRULED.

Re: [285:8-

285:13]

Def Objection -

407

OVERRULED

287:4 - 287:16 Myers, Brian 12-12-2019

 287 4 Q. Okay. And he had asked you for permission

 287 5 before he shared this information with the 

Department

 287 6 of Defense, right?

Re: [287:4-287:8]

401; 403

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 46 of 67
Myers, Brian 12-12-2019 46

 287 7 A. So that is the question that he asks me in

 287 8 this memo.

 287 9 Q. Right. And you didn't talk to Dr. Ohlin,

 287 10 right?

 287 11 A. I don't recall.

 287 12 Q. You don't recall having any conversation

 287 13 yourself with Dr. Ohlin, do you, sir?

 287 14 A. Not on this matter, no.

 287 15 Q. You don't recall ever transmitting him --

 287 16 to him the flange report, correct?

287:19 - 287:20 Myers, Brian 12-12-2019

 287 19 A. I don't -- I don't recall communicating

 287 20 with Dr. Ohlin on this.

288:23 - 289:11 Myers, Brian 12-12-2019

 288 23 Q. Okay. And we could agree, sir, that you

 288 24 did not tell Dr. Ohlin that these Combat Arms

 288 25 Version 2, you've got to be really careful with them,

 289 1 real careful, because they can loosen, you lose the

 289 2 seal sometimes imperceptibly on subjects.

 289 3 We could agree you never said that to

 289 4 Dr. Ohlin, right?

 289 5 A. I do not recall communicating with

 289 6 Dr. Ohlin about this issue.

 289 7 Q. Okay. And we can agree you have not seen

 289 8 a document from your company where you shared 

with the

 289 9 military that if you used these Combat Arms in this

 289 10 way, that the plugs could loosen, sometimes

 289 11 imperceptibly to the subjects, right, sir?

Re: [288:23-289:11]

Def Objection - Prejudice (403); 

(611); Ambiguous; Misstates, 

cumulative (611, 403)

Re: [288:23-

289:11]

Def Objection -

Prejudice (403); 

(611); 

Ambiguous; 

Misstates, 

cumulative (611, 

403)

OVERRULED

289:15 - 289:16 Myers, Brian 12-12-2019

 289 15 A. I have not seen a document where we

 289 16 communicated with the military on this issue.

Re: [289:15-289:16]

Def Objection - Prejudice (403); 

(611); Ambiguous; Misstates, 

Cumulative (611, 403)

Re: [289:15-

289:16]

Def Objection -

Prejudice (403); 

(611); 

Ambiguous; 

Misstates, 

Cumulative 

(611, 403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 47 of 67
Myers, Brian 12-12-2019 47

289:18 - 289:20 Myers, Brian 12-12-2019

 289 18 Q. And you can agree, sir, that you have not

 289 19 seen a document where you replied to Elliott Berger

 289 20 and said, Sure, share the information with Doug?

289:24 - 290:2 Myers, Brian 12-12-2019

 289 24 A. I -- I have not seen such a document, but

 289 25 consistent with my disposition, I would like to

 290 1 believe that I would have said, Please share the data

 290 2 and try to resolve the -- the technical concern.

290:4 - 290:5 Myers, Brian 12-12-2019

 290 4 Q. And I'm sure you'd like to believe that,

 290 5 sir, because this is quite a problem now, isn't it?

Re: [290:4-290:5]

Def Objection - (611); Prejudice 

(403); Cumulative (403).

OVERRULED

290:9 - 290:19 Myers, Brian 12-12-2019

 290 9 A. So there is clearly a technical concern

 290 10 here.

 290 11 BY MR. BUCHANAN:

 290 12 Q. What your technical people called a

 290 13 problem, right?

 290 14 A. Elliott said: "It looks like the existing

 290 15 product has problems unless the user instructions are

 290 16 revised." That's what his memo says.

 290 17 Q. And he says: "Should I share this with

 290 18 Ohlin," right?

 290 19 A. He does ask that question.

Re: [290:9-290:11]

Def Objection - (611); Prejudice, 

Cumulative (403)

Re: [290:17-290:19]

403; cumulative

OVERRULED

296:2 - 296:3 Myers, Brian 12-12-2019

 296 2 Q. Did anybody share that with the military,

 296 3 sir?

Re: [296:2-296:3]

Def Objection - (611); Prejudice 

(403); Cumulative (403).

Re: [296:2-

296:3]

Def Objection -

(611); Prejudice 

(403); 

Foundation 

(602); 

Cumulative 

(403),

OVERRULED

296:7 - 296:9 Myers, Brian 12-12-2019

 296 7 A. I don't know of any document that

 296 8 communicated this -- this technical concern to -- to

 296 9 the US military.

Re: [296:7-296:9]

Def Objection - (611); Prejudice 

(403); Foundation (602); 

Cumulative (403).

Re: [296:7-

296:9]

Def Objection -

(611); Prejudice

(403); 

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 48 of 67
Myers, Brian 12-12-2019 48

Foundation 

(602); 

Cumulative 

(403).

OVERRULED

298:8 - 298:16 Myers, Brian 12-12-2019

 298 8 Q. Right. And wouldn't you want a product

 298 9 that doesn't imperceptibly loosen, loosen, being used

 298 10 in that environment? You don't want the hearing

 298 11 protection to loosen on its own, right?

 298 12 A. Again, the U.S. military would have

 298 13 selected the product that they were to use, and I

 298 14 have -- have not been able to find any -- I -- I don't

 298 15 know of any communication from us to the U.S. 

military

 298 16 about this technical concern.

300:19 - 300:20 Myers, Brian 12-12-2019

 300 19 Q. Because we know that this report, this

 300 20 information is a pretty big deal, don't we, sir?

Re: [300:19-300:20]

Vague; Ambiguous; 403

OVERRULED

300:23 - 300:25 Myers, Brian 12-12-2019

 300 23 A. Well, Elliott and -- and Ron certainly

 300 24 thought it was enough of a technical concern to bring

 300 25 it forward.

Re: [300:23-300:25]

Vague; Ambiguous; 403

OVERRULED

302:18 - 302:21 Myers, Brian 12-12-2019

 302 18 Q. You have never seen that study or a

 302 19 finding of an NRR of 11, terminated study and the

 302 20 reasons for that outside the walls of Aearo and 3M,

 302 21 right?

Re: [302:18-302:21]

3M MIL 18; 403; 602; 401

OVERRULED

302:24 - 302:24 Myers, Brian 12-12-2019

 302 24 A. I have not seen that.

Re: [302:24-302:24]

3M MIL 18; 403; 602; 401

OVERRULED

303:23 - 304:2 Myers, Brian 12-12-2019

 303 23 Q. And with regard to the yellow end, sir,

 303 24 when the yellow end was tested in the ear to figure

 303 25 out the attenuation on the nonlinear side, were the

 304 1 green flanges folded back or not?

 304 2 A. I do not know.

308:22 - 308:24 Myers, Brian 12-12-2019

 308 22 Q. Okay. And it's your understanding, sir,

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 49 of 67
Myers, Brian 12-12-2019 49

 308 23 that that's how users were guided with regard to the

 308 24 instructions and the insertion of the device, fair?

309:2 - 309:6 Myers, Brian 12-12-2019

 309 2 BY THE WITNESS:

 309 3 A. So I -- again, we provided instructions,

 309 4 but training is -- is also provided and -- and I think

 309 5 pretty critical, so.

 309 6 BY MR. BUCHANAN:

314:24 - 316:9 Myers, Brian 12-12-2019

 314 24 Q. Okay. And what he writes under Test

 314 25 Procedure: "For test 213015 the plugs were fit

 315 1 according to the standard plug's fitting instruction

 315 2 with no modifications. Because the stem of the 

green,

 315 3 solid end of the plug is so short, it was difficult

 315 4 for the experimenter to insert the plug deeply into

 315 5 some subjects' earcanals, especially those subjects

 315 6 with" what?

 315 7 A. Do you want me to read from the document?

 315 8 Q. Yes.

 315 9 A. "With medium and larger earcanals."

 315 10 Q. "Medium and larger earcanals."

 315 11 Do you know what percentage of the

 315 12 population that represents, sir?

 315 13 A. I don't.

 315 14 Q. It is stated: "Additionally, the geometry

 315 15 of the ear canal opening sometimes prevented the 

deep

 315 16 plug insertion required for maximum attenuation

 315 17 values."

 315 18 Did I read that correctly?

 315 19 A. Yes, I see those words in the document.

 315 20 Q. "When the solid plug was fitted during the

 315 21 first test," which it lists as 015, "the basal edge of

 315 22 the third flange of the yellow, level-dependent plug

 315 23 sometimes pressed against the subject's ear canal

 315 24 opening and folded up."

 315 25 Did I read that correctly?

 316 1 A. Yes, those are the words in the document.

Re: [314:24-316:9]

Def Objection - Foundation 

(602); Prejudice (403)

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 50 of 67
Myers, Brian 12-12-2019 50

 316 2 Q. "When the inward pressure on the plug

 316 3 released, the yellow plug's flanges tended to return

 316 4 to their original shape and this sometimes loosened

 316 5 the plug, often imperceptibly to the subject."

 316 6 Did I read that correctly?

 316 7 A. Yes, those words are in this document.

 316 8 Q. We could agree, sir, that imperceptible

 316 9 loosening is not a good thing for an earplug, right?

316:12 - 316:16 Myers, Brian 12-12-2019

 316 12 A. It was clearly a technical concern he

 316 13 brought forward.

 316 14 BY MR. BUCHANAN:

 316 15 Q. Well, certainly he was concerned and

 316 16 terminated the study, right?

Re: [316:12-316:13]

Def Objection - Foundation 

(602); Prejudice (403); Vague; 

Ambiguous (611, 403)

Re: [316:15-316:16]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [316:12-

316:13]

Def Objection -

Foundation 

(602); Prejudice 

(403); Vague; 

Ambiguous 

(611, 403)

OVERRULED

Re: [316:15-

316:16]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

316:20 - 316:25 Myers, Brian 12-12-2019

 316 20 A. Well, I'm just trying to make sense of it

 316 21 between the memo and the -- and the -- and the

 316 22 document. So, yes, 213015 was the -- the initial test

 316 23 that was stopped after eight subjects because the

 316 24 results were variable and the NRR was quite low

 316 25 according to the memo from Ron to Elliott.

Re: [316:20-316:25]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [316:20-

316:25]

Def Objection -

Foundation 

(602); Prejudice 

(403)

OVERRULED

321:7 - 321:9 Myers, Brian 12-12-2019

 321 7 Q. Okay. Fair to say, sir, that you're not

 321 8 disagreeing with his conclusion that an NRR of 11 for

 321 9 this product is quite low?

Re: [321:7-321:9]

Def Objection - Foundation 

(602); Prejudice (403); Asked 

and answered; Vague (611, 

403); Cumulative (403).

Re: [321:7-

321:9]

Def Objection -

Foundation 

(602); Prejudice 

(403); Asked 

and answered; 

Vague (611, 

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 51 of 67
Myers, Brian 12-12-2019 51

403); 

Cumulative 

(403).

OVERRULED

321:12 - 321:14 Myers, Brian 12-12-2019

 321 12 A. I'm not disagreeing with his -- with his

 321 13 conclusion. He also said the results were variable as

 321 14 well.

Re: [321:12-321:14]

Def Objection - Foundation 

(602); Prejudice (403); Asked 

and answered; Vague (611, 

403); Cumulative (403).

Re: [321:12-

321:18]

Def Objection -

Foundation 

(602); Prejudice 

(403); Asked 

and answered; 

Vague (611, 

403); 

Cumulative 

(403).

OVERRULED

322:20 - 322:25 Myers, Brian 12-12-2019

 322 20 Your understanding, sir, when they did

 322 21 test 017, the study ending in 017, which is the

 322 22 retest, what Mr. Kieper did, as described in his

 322 23 report, is they flipped back the flanges on the yellow

 322 24 end when they were testing the amount of attenuation

 322 25 provided by the green end, is that right?

Re: [322:20-322:25]

Def Objection - Foundation 

(602); Prejudice (403); Misstates 

evidence (611, 403)

Re: [322:20-

322:25]

Def Objection -

Foundation 

(602); Prejudice 

(403); Misstates 

evidence (611, 

403)

OVERRULED

323:4 - 323:7 Myers, Brian 12-12-2019

 323 4 A. So -- so in Exhibit 23 he says: "For test

 323 5 213017, the yellow flanges," which I think is the way

 323 6 you have it, "of the Combat Arms end of the plug 

were

 323 7 folded back prior to the plug being fit."

Re: [323:4-323:7]

Def Objection - Foundation 

(602); Prejudice (403); (611, 

403).

Re: [323:4-

323:11]

Def Objection -

Foundation 

(602); Prejudice 

(403); (611, 

403).

OVERRULED

323:9 - 323:11 Myers, Brian 12-12-2019

 323 9 Q. Okay. How was the yellow end tested?

 323 10 A. He -- he doesn't -- he doesn't say here in

 323 11 the memo. I don't know if that's in this report.

Re: [323:9-323:11]

improper counter

SUSTAINED

323:19 - 323:21 Myers, Brian 12-12-2019

 323 19 Q. Did -- did Mr. Kieper fold back the green

Re: [323:19-323:21]

improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 52 of 67
Myers, Brian 12-12-2019 52

 323 20 end when he was testing the yellow end?

 323 21 A. I don't know.

323:22 - 323:24 Myers, Brian 12-12-2019

 323 22 Q. And wouldn't you agree, sir, that if

 323 23 folding back the flanges is the right way to test the

 323 24 product, you should test both ends the same way?

Re: [323:22-323:24]

Def Objection - Foundation 

(602); Prejudice (403); (611, 

403).

Re: [323:19-

323:24]

Def Objection -

Foundation 

(602); Prejudice 

(403); (611, 

403).

OVERRULED

324:3 - 324:3 Myers, Brian 12-12-2019

 324 3 A. That would be up to the technical group.

Re: [324:3-324:3]

Def Objection - Foundation 

(602); Prejudice (403); Misstates 

evidence (611, 403).

Re: [324:3-

324:3]

Def Objection -

Foundation 

(602); Prejudice 

(403); Misstates 

evidence (611, 

403).

OVERRULED

328:9 - 328:10 Myers, Brian 12-12-2019

 328 9 MR. BUCHANAN: I'd like to play, please, the

 328 10 clip, Page 165, Line 20 to Page 166, Line 1.

328:13 - 328:13 Myers, Brian 12-12-2019

 328 13 A. I'm sorry, I can't understand that.

329:1 - 329:2 Myers, Brian 12-12-2019

 329 1 Q. On the screen, sir, is that Mr. Hamer?

 329 2 A. That is Jeff Hamer.

Re: [329:1-329:7]

403; 401; cumulative

OVERRULED

329:3 - 329:7 Myers, Brian 12-12-2019

 329 3 Q. You said he had responsibility for all of

 329 4 the lab?

 329 5 A. He is the technical manager for hearing

 329 6 protection, so I believe the lab falls under his

 329 7 responsibility today.

Re: [329:1-329:7]

403; 401; cumulative

OVERRULED

331:22 - 332:14 Myers, Brian 12-12-2019

 331 22 Q. And we are looking at the bottom. All

 331 23 right. And I'll rep -- I'll now read to you, sir, the

 331 24 sworn testimony of Mr. Hamer from a few years 

back.

Re: [331:22-332:14]

Def Objection - Foundation 

(602); Prejudice (403); Hearsay 

(802).

Re: [331:22-

332:14]

Def Objection -

Foundation 

(602); Prejudice 

Re: [331:22-332:10]

3M MIL 6

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 53 of 67
Myers, Brian 12-12-2019 53

 331 25 "Would it be fair to say that if they did

 332 1 not test the open mode with the flange rolled back,

 332 2 but they did test the closed end with the flange

 332 3 rolled back, that that would be improper because the

 332 4 two tests were using the product in two different

 332 5 ways?"

 332 6 His answer:

 332 7 "My opinion is that testing the product

 332 8 with the flanges rolled back is improper."

 332 9 Did I read that correctly, sir?

 332 10 A. Yes, I think you did.

 332 11 Q. And you've talked about how you deferred

 332 12 to technical folks throughout today, sir. I take it

 332 13 you defer to Mr. Hamer on what the proper way is to

 332 14 test the product that has two ends, right?

(403); Hearsay 

(802).

OVERRULED

332:17 - 332:20 Myers, Brian 12-12-2019

 332 17 A. He is the technical manager, yes.

 332 18 BY MR. BUCHANAN:

 332 19 Q. And you don't dispute his view of what's

 332 20 improper, do you, sir?

Re: [332:17-332:20]

Def Objection - Foundation 

(602); Prejudice (403); Vague; 

Ambiguous (611, 403); Hearsay 

(802).

Re: [332:17-

332:20]

Def Objection -

Foundation 

(602); Prejudice 

(403); Vague; 

Ambiguous 

(611, 403); 

Hearsay (802).

OVERRULED

332:23 - 332:24 Myers, Brian 12-12-2019

 332 23 A. No. It's a -- it's a technical -- it's a

 332 24 technical issue.

Re: [332:23-332:24]

Def Objection - Foundation 

(602); Prejudice (403); Vague; 

Ambiguous (611, 403); Hearsay 

(802).

Re: [332:23-

332:24]

Def Objection -

Foundation 

(602); Prejudice 

(403); Vague; 

Ambiguous 

(611, 403); 

Hearsay (802).

OVERRULED

335:6 - 335:9 Myers, Brian 12-12-2019

 335 6 Q. You'd agree that exposure to this flange

 335 7 report could lead to some pretty significant actions

Re: [335:6-335:9]

Def Objection - Prejudice (403); 

(611); Ambiguous (611, 403)

Re: [335:6-

335:9]

Def Objection -

Prejudice (403); 

Re: [335:6-335:9]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 54 of 67
Myers, Brian 12-12-2019 54

 335 8 when a manufacturer is exposed to it, right?

 335 9 A. I don't know what actions could result.

(611); 

Ambiguous 

(611, 403)

OVERRULED

340:2 - 340:13 Myers, Brian 12-12-2019

 340 2 Q. And ultimately, sir, that flange report

 340 3 was shown to Mr. Hamer in his deposition. You got 

a

 340 4 call not too long after that, didn't you?

 340 5 A. I don't know.

 340 6 Q. Mr. Hamer call you up after his deposition

 340 7 and ask you what the deal was with the flange report?

 340 8 A. I don't recall that.

 340 9 Q. Well, didn't you reach a determination,

 340 10 sir, that you couldn't market this Combat Arms

 340 11 Version 2 with an NRR of 22 after senior folks in 

3M

 340 12 had been exposed to the flange report?

 340 13 A. I -- I don't recall that.

Re: [340:2-340:13]

Hearsay; privilege; calls for 

legal conclusion; 403; 407; 3M 

MIL 16; Baker MIL 1

OVERRULED

344:23 - 345:4 Myers, Brian 12-12-2019

 344 23 Q. And you sold millions of these Combat Arms

 344 24 Version 2 to the US military and you're not aware of

 344 25 anyone ever sharing any concern with them about

 345 1 imperceptible loosening, correct, sir?

 345 2 A. I have not been able to find any written

 345 3 communication from the -- the company to the US

 345 4 military on this issue.

Re: [344:23-345:4]

Def Objection - Foundation 

(602); Prejudice (403); Vague; 

Ambiguous (611, 403); 

Reference to millions of sales 

not relevant to these plaintiffs; 

Cumulative (403).

Re: [344:19-

345:9]

Def Objection -

Foundation 

(602); Prejudice 

(403); Vague; 

Ambiguous 

(611, 403); 

Reference to 

millions of sales 

not relevant to 

these plaintiffs; 

Cumulative 

(403).

OVERRULED

345:10 - 345:24 Myers, Brian 12-12-2019

 345 10 Q. Well, ultimately this got back to you,

 345 11 sir, the day after Mr. Hamer's deposition, didn't it,

 345 12 this whole flange report issue?

 345 13 A. Again, I don't -- I don't recall that.

Re: [345:10-345:24]

407; 403; MIL 16; Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 55 of 67
Myers, Brian 12-12-2019 55

 345 14 Q. Okay. Because the next day, sir, you

 345 15 issued cease shipping orders putting on hold all of

 345 16 the Combat Arms SKUs, didn't you, sir?

 345 17 A. That timing would be about right.

 345 18 Q. You have a memory now of that, sir?

 345 19 A. No. I -- I remember that we ceased

 345 20 shipping at about that time.

 345 21 Q. And that was the day after Mr. Hamer's

 345 22 deposition where he saw for the first time the flange

 345 23 report, right?

 345 24 A. I guess I did not realize that.

348:17 - 350:2 Myers, Brian 12-12-2019

 348 17 Sir, as of October 2015, you had been out

 348 18 of the day-to-day Combat Arms business for some 

time,

 348 19 true?

 348 20 A. So I had other people who reported to me

 348 21 who focused on the hearing protection business.

 348 22 Q. Okay. And you're the one who is issuing

 348 23 the stop ship order, right?

 348 24 A. This e-mail is from me, yes.

 348 25 Q. All right. Sir, we are now later in

 349 1 October of 2015 and some folks are asking you

 349 2 questions about whether they can still sell Combat

 349 3 Arms for some international orders, right?

 349 4 A. So, in Ex -- Exhibit 28, I think that was

 349 5 the -- there was a question about Europe.

 349 6 Q. Okay. And you've got Exhibit 28 before

 349 7 you here, we are late in October of 2015, and there is

 349 8 a question being raised by folks about whether this

 349 9 product can still be shipped.

 349 10 Do you see that?

 349 11 A. I was trying to find the exact question.

 349 12 Is there a -- is there a -- a spot in this

 349 13 exhibit with the exact question?

 349 14 Q. We are just working through our papers

 349 15 here, sir.

 349 16 Let's set that one aside for a moment,

 349 17 sir. You can set that one aside.

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 56 of 67
Myers, Brian 12-12-2019 56

 349 18 A. Okay.

 349 19 Q. I marked the wrong one.

 349 20 A. You are taking a big chance that I'll be

 349 21 able to find it again.

 349 22 Q. While we are on Exhibit 28, sir, do you

 349 23 see at the top there is an exchange between you and

 349 24 European folks who had responsibility for the 

Combat

 349 25 Arms or sold or distributed Combat Arms, correct?

 350 1 A. Di -- Divinder Bains was a product manager

 350 2 in Europe.

350:3 - 350:18 Myers, Brian 12-12-2019

 350 3 Q. Okay. And he reaches out and says, Hey,

 350 4 we've got an order for 500 cases of these things,

 350 5 right?

 350 6 A. I see an e-mail from, was that from him,

 350 7 from Liz Chandler, since this request is for Europe,

 350 8 hang on, I'll go on back, there is a person on here I

 350 9 don't know, a couple of people I don't know.

 350 10 Q. After all of that back and forth, sir --

 350 11 A. Sorry.

 350 12 Q. -- do you see at the top of the first

 350 13 page, you are asked, based on being shown the

 350 14 packaging for the Combat Arms, whether you can 

ship

 350 15 it, right?

 350 16 And you state at the top: "Sorry, but we

 350 17 should not ship this product. I've informed

 350 18 Divinder," correct?

350:19 - 350:20 Myers, Brian 12-12-2019

 350 19 A. I said: "Sorry, but we should not ship

 350 20 this product. I have informed Divinder."

351:3 - 351:5 Myers, Brian 12-12-2019

 351 3 Q. And this is going on with multiple

 351 4 accounts, right, you all are issuing a stop ship on

 351 5 your Combat Arms in October 2015, is that right, sir?

Re: [351:3-351:5]

Def Objection - MIL 16; 407; 

401; 402; 403; 611.

351:10 - 351:16 Myers, Brian 12-12-2019

 351 10 A. In the e-mail I asked that we cease

 351 11 shipping and put on hold indefinitely those SKUs.

Re: [351:10-351:11]

Def Objection - MIL 16; 407; 

401; 402; 403; 611.

Re: [351:13-351:16]

407; 403; MIL 16; Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 57 of 67
Myers, Brian 12-12-2019 57

 351 12 BY MR. BUCHANAN:

 351 13 Q. Right. In fact, what you did, is you

 351 14 started cancelling orders, right?

 351 15 A. I don't know that, but we did cease

 351 16 shipping it.

352:16 - 352:22 Myers, Brian 12-12-2019

 352 16 And you state, carrying over -- and we

 352 17 set -- see this e-mail on October 31, 2015, and you

 352 18 state: "Divinder - either way as I explained to you,

 352 19 we cannot distribute this with the current NRR on the

 352 20 package."

 352 21 Did I read that correctly?

 352 22 A. That's -- those were the words I used.

Re: [352:16-352:22]

Def Objection - MIL 16; 407; 

401; 402; 403.

Re: [352:12-

352:22]

Def Objection -

MIL 16; 407; 

401; 402; 403.

OVERRULED

Re: [352:16-352:22]

Baker MIL 1

OVERRULED

353:21 - 353:24 Myers, Brian 12-12-2019

 353 21 Q. It's in fact true, sir, that you were

 353 22 instructing people not to ship the Combat Arms

 353 23 Version 2 with the current NRR on the label, correct?

 353 24 A. Those were the words in that e-mail.

Re: [353:21-353:24]

Def Objection - MIL 16; 407; 

401; 402; 403.

Re: [353:21-

353:24]

Def Objection -

MIL 16; 407; 

401; 402; 403.

OVERRULED

Re: [353:21-353:24]

Baker MIL 1

OVERRULED

355:12 - 355:13 Myers, Brian 12-12-2019

 355 12 You couldn't ship the product with a 22,

 355 13 correct?

355:16 - 355:21 Myers, Brian 12-12-2019

 355 16 Q. At least as of this point in time in 2015?

 355 17 A. So my recollection is that I used the NRR

 355 18 of 22 as a shorthand for this set of SKUs that I had

 355 19 communicated that we should no longer ship from --

and

 355 20 I'm sorry -- it was Exhibit 27 I pointed to, and those

 355 21 are the SKUs that I asked us to stop shipping.

358:16 - 359:3 Myers, Brian 12-12-2019

 358 16 Q. You told people that they should dispose

 358 17 of them, right?

 358 18 A. I don't recall that.

 358 19 MR. BUCHANAN: Can I have P899A.

 358 20 (WHEREUPON, a certain document was

 358 21 marked Brian Myers Deposition Exhibit

 358 22 No. 30, for identification, as of

 358 23 12/12/2019.)

Re: [358:16-359:3]

Def Objection - MIL 16; FRE 

407; Prejudice (403); Relevance 

(401, 402)

Re: [358:12-

359:3]

Def Objection -

MIL 16; FRE 

407; Prejudice 

(403); 

Relevance (401, 

402)

OVERRULED

Re: [358:16-359:3]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 58 of 67
Myers, Brian 12-12-2019 58

 358 24 BY MR. BUCHANAN:

 358 25 Q. I'm passing you, sir, what's been marked

 359 1 as Exhibit 30 to your deposition. It says that same

 359 2 re line, this is concerning an order for 500 cases.

 359 3 That's a pretty good size order, isn't it?

359:7 - 359:8 Myers, Brian 12-12-2019

 359 7 A. I don't know. I don't know how big that

 359 8 order was. 500 cases, I'm not sure.

Re: [359:6-359:8]

Def Objection - Prejudice (403); 

Relevance (401; 402).

Re: [359:6-

359:8]

Def Objection -

Prejudice (403); 

Relevance (401; 

402).

OVERRULED

Re: [359:6-359:8]

Baker MIL 1

OVERRULED

359:25 - 360:8 Myers, Brian 12-12-2019

 359 25 Q. And there is a question from Divinder

 360 1 Bains: "Luis, Can we do a phaseout," it is the second

 360 2 e-mail from the bottom?

 360 3 A. I see that e-mail from Divinder Bains:

 360 4 "Can we do a "phase out" of (370-1011)...and use 3M

 360 5 Combat Arms 4.1 as new solution. Thank you."

 360 6 Is that what you mean?

 360 7 Q. That's what I mean.

 360 8 A. Okay.

360:9 - 360:25 Myers, Brian 12-12-2019

 360 9 Q. And then it is being put back to Luis, and

 360 10 he is asking the question should the stock that we

 360 11 have here, the 200, I guess pair, should it be

 360 12 disposed of or can it be sold?

 360 13 Do you see that question?

 360 14 A. I see that question in -- in that e-mail

 360 15 from November the 3rd.

 360 16 Q. And your instruction back to Luis was

 360 17 what?

 360 18 A. My e-mail said: "Please dispose of them."

 360 19 Q. Okay. And you understood that to mean

 360 20 destroy them, right?

 360 21 A. To get rid of them, yes.

 360 22 Q. Throw them away?

 360 23 A. Something like that.

Re: [360:16-360:25]

Def Objection - MIL 16; 407; 

403; Relevance (401, 402)

Re: [360:16-

360:25]

Def Objection -

MIL 16; 407; 

403; Relevance 

(401, 402)

OVERRULED

Re: [360:9-361:1]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 59 of 67
Myers, Brian 12-12-2019 59

 360 24 Q. Destroy them?

 360 25 A. Dispose.

361:1 - 361:1 Myers, Brian 12-12-2019

 361 1 Q. Make sure they don't get used, right?

Re: [361:1-361:1]

Def Objection - MIL 16; 407; 

Prejudice (403); (611); 

Cumulative (403)

Re: [361:1-

361:1]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

(611); 

Cumulative 

(403)

OVERRULED

Re: [360:9-361:1]

Baker MIL 1

OVERRULED

361:5 - 361:9 Myers, Brian 12-12-2019

 361 5 A. Yes, dispose of them.

 361 6 BY MR. BUCHANAN:

 361 7 Q. And disposing of them, that would mean

 361 8 make sure they don't get used, right?

 361 9 A. That was my intention.

Re: [361:5-361:9]

Def Objection - MIL 16; 407; 

Prejudice (403); (611); 

Cumulative (403).

Re: [361:5-

361:14]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

(611); 

Cumulative 

(403).

OVERRULED

Re: [361:5-361:9]

Baker MIL 1

OVERRULED

361:23 - 361:25 Myers, Brian 12-12-2019

 361 23 Q. You didn't say, We can solve for this

 361 24 internally and just train people up on it, send them

 361 25 back to me, I'll pass them around the office?

Re: [361:23-361:25]

Def Objection - Prejudice (403); 

(611); Cumulative (403)

Re: [361:17-

361:25]

Def Objection -

Prejudice (403); 

(611); 

Cumulative 

(403)

SUSTAINED 

as to 361:23-25. 

Otherwise 

OVERRULED.

362:4 - 362:10 Myers, Brian 12-12-2019

 362 4 Q. You didn't say that, right?

 362 5 A. It says: "Please dispose of them."

 362 6 Q. Make sure nobody uses them, right?

 362 7 A. "Please dispose of them."

 362 8 Q. And so my question to you, sir, is what

 362 9 you are telling folks within 3M, destroy the stock you

 362 10 have of these things, right?

Re: [362:4-362:7]

Def Objection - Prejudice (403); 

(611); Cumulative (403)

Re: [362:4-

362:7]

Def Objection -

Prejudice (403); 

(611); 

Cumulative 

(403)

SUSTAINED

Re: [362:8-362:10]

MIL 16; 403; vague; ambiguous; 

407; Baker MIL 1

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 60 of 67
Myers, Brian 12-12-2019 60

362:13 - 362:13 Myers, Brian 12-12-2019

 362 13 A. I said: "Please dispose of them."

Re: [362:13-362:13]

MIL 16; 403; vague; ambiguous; 

407; Baker MIL 1

362:25 - 363:3 Myers, Brian 12-12-2019

 362 25 Q. When did you tell the military, sir, that,

 363 1 Hey, you shouldn't use these anymore, the NRR of 22

 363 2 can't be used with this product? When did you tell

 363 3 them that?

Re: [362:25-363:3]

Def Objection - MIL 16; 407; 

Prejudice (403); Vague; 

Ambiguous (611, 403); 

Cumulative (403)

Re: [362:25-

363:3]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

Vague; 

Ambiguous 

(611, 403); 

Cumulative 

(403)

OVERRULED

Re: [363:1-363:3]

Baker MIL 1

OVERRULED

363:7 - 363:16 Myers, Brian 12-12-2019

 363 7 A. Again, I don't know that there was any

 363 8 announcement or communication on that.

 363 9 BY MR. BUCHANAN:

 363 10 Q. When did you tell all of the people -- and

 363 11 this had been sold for 15 years, right?

 363 12 A. At that point in time, it was about

 363 13 15 years.

 363 14 Q. When did you tell the people about the

 363 15 problems with these or that the NRR of 22 should

not

 363 16 be assumed for the product?

Re: [363:7-363:16]

Def Objection - MIL 16; 407; 

Prejudice (403); Vague; 

Ambiguous; Cumulative (611, 

403)

Re: [363:7-

363:16]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

Vague; 

Ambiguous; 

Cumulative 

(611, 403)

OVERRULED

Re: [363:7-363:16]

Baker MIL 1

OVERRULED

363:20 - 363:21 Myers, Brian 12-12-2019

 363 20 A. Again, I don't recall any -- any

 363 21 announcement.

Re: [363:20-363:21]

Def Objection - MIL 16; 407; 

Prejudice (403); Vague; 

Ambiguous; Cumulative (611, 

403).

Re: [363:20-

363:21]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

Vague; 

Ambiguous; 

Cumulative 

(611, 403).

OVERRULED

Re: [363:20-363:21]

Baker MIL 1

OVERRULED

365:18 - 365:20 Myers, Brian 12-12-2019

 365 18 You'd agree, sir, that one way in which a

 365 19 company can communicate product safety concerns 

Re: [365:18-365:20]

Def Objection - MIL 16; 407; 

Prejudice (403); Vague; 

Re: [365:18-

365:20]

Def Objection -

Re: [365:18-365:20]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 61 of 67
Myers, Brian 12-12-2019 61

to its

 365 20 user base is through a recall, right?

Ambiguous; Cumulative (611, 

403)

MIL 16; 407; 

Prejudice (403); 

Vague; 

Ambiguous; 

Cumulative 

(611, 403)

OVERRULED

365:23 - 365:23 Myers, Brian 12-12-2019

 365 23 A. I suppose that's one way.

Re: [365:23-365:23]

Def Objection - MIL 16; 407; 

Prejudice (403); Vague; 

Ambiguous; Cumulative (611, 

403)

Re: [365:23-

365:23]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

Vague; 

Ambiguous; 

Cumulative 

(611, 403)

OVERRULED

Re: [365:23-365:23]

Baker MIL 1

OVERRULED

366:10 - 366:15 Myers, Brian 12-12-2019

 366 10 Q. Okay. And so at what point in time, sir,

 366 11 in 2015 or 2016 or 2017 or 2018 or 2019 did the

 366 12 company communicate to the millions of people or

 366 13 hundreds of thousands of people in possession of 

these

 366 14 that you shouldn't use this with an expectation that

 366 15 it's going to provide you with an NRR of 22?

Re: [366:10-366:15]

Def Objection - Prejudice (403); 

MIL 16; Cumulative; asked and 

answered; compound (611, 403)

Re: [366:10-

366:15]

Def Objection -

Prejudice (403); 

MIL 16; 

Cumulative; 

asked and 

answered; 

compound (611, 

403)

OVERRULED

Re: [366:10-366:15]

Baker MIL 1

OVERRULED

366:19 - 367:4 Myers, Brian 12-12-2019

 366 19 A. I don't know that we did.

 366 20 BY MR. BUCHANAN:

 366 21 Q. In fact, you are pretty sure you didn't,

 366 22 right?

 366 23 A. I don't know that we did.

 366 24 Q. Well, a recall would be something you

 366 25 would be made aware of, right, sir?

 367 1 A. I would think I would be aware of that.

 367 2 Q. I mean, you were a person that was out

Re: [366:19-367:4]

Def Objection - Prejudice (403); 

MIL 16; 407; Cumulative; asked 

and answered; compound (611, 

403)

Re: [366:19-

367:4]

Def Objection -

Prejudice (403);

MIL 16; 407; 

Cumulative; 

asked and 

answered; 

compound (611, 

403)

OVERRULED

Re: [366:29-367:4]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 62 of 67
Myers, Brian 12-12-2019 62

 367 3 telling people to stop shipping these and destroy

 367 4 them, right?

367:7 - 367:7 Myers, Brian 12-12-2019

 367 7 A. The language I used was: "Please dispose

Re: [367:7-367:8]

Def Objection - MIL 16; 407; 

Prejudice (403); Cumulative 

(403).

Re: [367:7-

367:19]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

Cumulative 

(403).

OVERRULED

Re: [367:7-367:8]

Baker MIL 1

OVERRULED

367:11 - 367:18 Myers, Brian 12-12-2019

 367 11 How about communicating that these

 367 12 millions of products that are out there in the

 367 13 marketplace that you are using assuming safety and

 367 14 protection up to 22 NRR, in fact, can imperceptibly

 367 15 loosen.

 367 16 Did you ever make a communication like

 367 17 that at any point in time?

 367 18 A. I don't know.

Re: [367:11-367:18]

Def Objection - MIL 16; 407; 

Prejudice (403); Cumulative 

(403).

Re: [367:7-

367:19]

Def Objection -

MIL 16; 407; 

Prejudice (403); 

Cumulative 

(403).

OVERRULED

Re: [367:11-367:18]

Baker MIL 1

OVERRULED

367:24 - 367:25 Myers, Brian 12-12-2019

 367 24 Q. Are you aware of one, sir?

 367 25 A. No, I'm not aware of one.

Re: [367:24-367:25]

Def Objection - MIL 16; 407; 

Vague; Ambiguous (611, 403); 

Prejudice (403)

Re: [367:22-

367:25]

Def Objection -

MIL 16; 407; 

Vague; 

Ambiguous 

(611, 403); 

Prejudice (403)

OVERRULED

Re: [367:24-367:25]

Baker MIL 1

OVERRULED

371:15 - 371:25 Myers, Brian 12-12-2019

 371 15 Q. Okay. At the point in time when 3M bought

 371 16 Aearo in 2007-8, you had all of those three things,

 371 17 right? You had common stock, preferred stock and

 371 18 options?

 371 19 A. I only remember having something that was

 371 20 called stock or something like that.

 371 21 Q. Uh-huh. And when the company sold to 3M

 371 22 in 2007, 2008, you liquidated your position, right?

 371 23 A. I'm not sure I had a choice. I think

 371 24 that's just what happened when 3M took -- bought 

Re: [371:15-371:25]

Def Objection - MIL 7;

Prejudice (403); Foundation 

(602); 401; 402; 403.

Re: [370:11-

372:6]

Def Objection -

MIL 7; 

Prejudice (403); 

Foundation 

(602); 401; 402; 

403.

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 63 of 67
Myers, Brian 12-12-2019 63

the

 371 25 company.

372:10 - 372:12 Myers, Brian 12-12-2019

 372 10 A. So, having not seen this or -- or being

 372 11 familiar, that's what you've reflected here in this

 372 12 document.

375:19 - 376:5 Myers, Brian 12-12-2019

 375 19 Q. Let me pass you, sir, the press release

 375 20 that was issued by your company Aearo, February 1,

 375 21 2006. It says: "Permira, a leading international

 375 22 private equity firm, today announced a new holding

 375 23 company formed by the funds it advises signed a

 375 24 definitive agreement to acquire Aearo, one of the

 375 25 world's leading designers, manufacturers and 

marketers

 376 1 of a broad range of personal protective products and

 376 2 energy absorbing composites for approximately

 376 3 $765 million."

 376 4 Did I read that correctly?

 376 5 A. Those are the words in this press release.

Re: [375:19-376:5]

Def Objection - MIL 7; 

Prejudice (403); Hearsay (801, 

802); 401; 402; 403.

Re: [375:19-

376:5]

Def Objection -

MIL 7; 

Prejudice (403); 

Hearsay (801, 

802); 401; 402; 

403.

OVERRULED

Re: [375:19-376:5]

Baker MIL 1

OVERRULED

377:8 - 377:10 Myers, Brian 12-12-2019

 377 8 Q. Okay. And you'd agree with me, sir, that,

 377 9 what is that, less than two years later, 3M comes in

 377 10 and 3M buys you all for $1.2 billion, right?

Re: [377:8-377:10]

Def Objection - MIL 7; asked 

and answered (611, 403); 407; 

Foundation (602); 401; 402; 

403.

Re: [377:6-

377:10]

Def Objection -

MIL 7; asked 

and answered 

(611, 403); 407; 

Foundation 

(602); 401; 402; 

403.

OVERRULED

Re: [377:8-377:10]

Baker MIL 1

OVERRULED

377:14 - 377:15 Myers, Brian 12-12-2019

 377 14 A. Yes, I think that was announced in 2007

 377 15 and ultimately they bought us in 2008, so...

Re: [377:14-377:15]

Def Objection - MIL 7; 

Foundation (602); 401; 402; 

403.

Re: [377:14-

377:15]

Def Objection -

MIL 7; 

Foundation 

(602); 401; 402; 

403.

OVERRULED

Re: [377:14-377:15]

Baker MIL 1

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 64 of 67
Myers, Brian 12-12-2019 64

379:20 - 380:3 Myers, Brian 12-12-2019

 379 20 Q. Right.

 379 21 So between 2004 and 2007, 2008, wow, is

 379 22 that three times more valuable, your company?

 379 23 A. In rough math that -- that's what the

 379 24 numbers work out to, it seems like.

 379 25 Q. Right. And you all were pushing during

 380 1 that same period of time a lot of Combat Arms

 380 2 Version 2, right?

 380 3 MR. NOMELLINI: Object to form and foundation.

Re: [379:20-380:2]

Def Objection - MIL 7; Hearsay 

(801, 802); Foundation (602); 

401; 402; 403.

Re: [379:21-380:2]

Baker MIL 1

OVERRULED

380:5 - 380:7 Myers, Brian 12-12-2019

 380 5 A. I think we had, if I recall, good -- good

 380 6 sales of Combat Arms Earplugs in the '04, '05, '06

 380 7 timeframe.

Re: [380:5-380:7]

Def Objection - MIL 7; Hearsay 

(801, 802); Foundation (602); 

Prejudice (403); 401; 402.

Re: [380:5-380:7]

Baker MIL 1

OVERRULED

381:7 - 381:12 Myers, Brian 12-12-2019

 381 7 Q. I'm passing you, sir, Exhibit 35.

 381 8 Exhibit 35, sir, is an e-mail? It is

 381 9 P1234. An e-mail between yourself, a Vince 

Donargo

 381 10 and John Flanagan.

 381 11 Do you see that?

 381 12 A. I do see that.

Re: [381:7-381:12]

Hearsay; 3M MIL 7; Baker MIL 

1; 403; 401

OVERRULED

381:19 - 382:4 Myers, Brian 12-12-2019

 381 19 A. In an e-mail from August, it looks like

 381 20 August the 26th.

 381 21 Q. You said Combat Arms is: "turning into

 381 22 quite a business this year," right?

 381 23 A. That's how I characterized it.

 381 24 Q. This was an important product for Aearo,

 381 25 wasn't it?

 382 1 A. You know, I -- most of the products in my

 382 2 portfolio were important. This was one of them, yes.

 382 3 Q. Well, it was quite a business, right?

 382 4 A. That's how I characterized it.

Re: [381:19-382:4]

Hearsay; 3M MIL 7; Baker MIL 

1; 403; 401

OVERRULED

398:19 - 399:11 Myers, Brian 12-12-2019

 398 19 The AO Indoor/Outdoor Safety Plug, that

 398 20 was a separate product you all marketed and sold,

 398 21 right?

 398 22 A. That was my understanding, but I think

Re: [398:19-399:11]

Plt Objection - improper counter

SUSTAINED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 65 of 67
Myers, Brian 12-12-2019 65

 398 23 that came to be known as the Combat Arms Earplug 

at

 398 24 some point.

 398 25 Q. At early points in time, like 2000, you

 399 1 had a separate consumer SKU, stock keeping unit, for

 399 2 the AO Safety Indoor/Outdoor Safety Plug, right?

 399 3 A. Yes, that was my under -- my -- my

 399 4 recollection.

 399 5 Q. From a feature perspective, it was feature

 399 6 identical with the CAE v2 in terms of its doubleended

 399 7 design, the filter, correct?

 399 8 A. It was packaged in a different manner, but

 399 9 the plug itself was the same as the CAE v2, and -- and

 399 10 at some point it came to be called the Combat Arms

 399 11 Earplug, but I don't recall when that was.

406:5 - 406:11 Myers, Brian 12-12-2019

 406 5 Q. And so Combat Arms is accounting for more

 406 6 than 50 percent of the increase in sales over the

 406 7 prior year, right?

 406 8 A. Yeah, it appears that this is directed

 406 9 only at our consumer business, so, but that -- those

 406 10 are the words that -- that appear there and the math,

 406 11 it seems like it's about right.

Re: [406:5-406:11]

Def Objection - Foundation 

(602); Prejudice (403)

Re: [406:5-406:11]

Baker MIL 1

OVERRULED

407:16 - 407:22 Myers, Brian 12-12-2019

 407 16 Q. And forget about my graph, sir. In your

 407 17 discussion and your review of Combat Arms sales, 

which

 407 18 we looked at a few minutes ago, you had concluded 

by

 407 19 2004 the Combat Arms had turned into a -- quite a 

nice

 407 20 business, right?

 407 21 A. That's how I characterized it in my

 407 22 e-mail.

Re: [407:16-407:22]

Def Objection - MIL 7; 401; 

402; 403.

Re: [407:16-407:22]

Baker MIL 1

OVERRULED

412:15 - 412:18 Myers, Brian 12-12-2019

 412 15 Q. Right. It said that it exploded in 2005,

 412 16 more than quadrupling 2004, right?

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 66 of 67
Myers, Brian 12-12-2019 66

 412 17 A. It says that. Again, I would point out it

 412 18 was a pretty small base.

415:12 - 415:14 Myers, Brian 12-12-2019

 415 12 Q. And so what's happening here, sir, is in

 415 13 2004 and 2005, you realize you've got this amazing

 415 14 opportunity to make money from the US military, 

right?

415:18 - 415:23 Myers, Brian 12-12-2019

 415 18 A. Well, I would also point out that we had

 415 19 had feedback from some soldiers in the military 

about

 415 20 the success of this concept and how it had helped 

them

 415 21 and that's a part of why we were engaged in the

 415 22 business as well, was to try to provide -- try to

 415 23 provide solutions, as we said here.

Re: [415:18-415:23]

Plt Objection - 602, 802

Re: [415:18-

415:23]

Plt Objection -

602; 802

OVERRULED

Re: [415:18-415:23]

nonresponsive

OVERRULED

Case 7:20-cv-00039-MCR-GRJ Document 154-1 Filed 06/06/21 Page 67 of 67