EXHIBIT 1

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 1 of 50
Preserved Objections Previous Rulings New Objections Rulings

735:22 - 736:15 Fallon, Eric (2020-09-04) 1:45

735:22 Q. Mr. Fallon, good afternoon. Re: [736:03 to 736:18] SUSTAINED

735:23 A. Good afternoon. Pltf Obj FRE 403

735:24 Q. And just for the record, Chad

735:25 Morriss from Kirkland & Ellis, representing

736:01 3M and Mr. Fallon, and here to do a short

736:02 direct examination.

736:03 Yesterday we talked a little

736:04 bit about your background, so I'd like to go

736:05 back and fill in some of those gaps if we

736:06 could.

736:07 Would you tell the jury a

736:08 little bit about where you grew up, went to

736:09 high school, that sort of thing, so they can

736:10 get to know you a little bit?

736:11 A. I moved around a good bit while

736:12 I was growing up. My dad was an ironworker,

736:13 so we traveled a good bit. I would consider

736:14 the Mississippi gulf coast to be my hometown.

736:15 It's where most of my family is at.

736:16 - 737:07 Fallon, Eric (2020-09-04) 1:36

736:16 My mother's family was from the Re: [736:03 to 736:18] SUSTAINED

736:17 mountains of North Carolina. That's where Pltf Obj FRE 403

736:18 most of those are still at.

736:19 Q. Where did you graduate from Re: [736:23 to 738:15] SUSTAINED

736:20 high school? Pltf Obj FRE 403, 611

736:21 A. I graduated from George County

736:22 High School in Lucedale, Mississippi.

736:23 Q. Okay. And did you work during

736:24 the time you were in high school before you

736:25 graduated and sort of got out on your own?

737:01 A. I did. I had a variety of

737:02 jobs. My dad was an ironworker, which is

737:03 what most of my family did, so during the

737:04 summertimes, as soon as school was out, I

737:05 would go on the road and do ironworking from

737:06 the time I was probably 14 years old until I

737:07 graduated.

737:08 - 738:03 Fallon, Eric (2020-09-04) 1:58

737:08 And during school I would have Re: [736:23 to 738:15] SUSTAINED

737:09 odd jobs like working at a grocery store, Pltf Obj FRE 403, 611

737:10 anything that I could pick up.

737:11 Q. What did you do after high

737:12 school?

737:13 A. After high school, instead of

737:14 going back out on the road, I decided I

737:15 wanted to stay locally. I recall going down

737:16 to the Mississippi gulf coast and getting a

737:17 job as a shipfitter apprentice at a shipyard.

Designations

Page 1 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 2 of 50
737:18 Q. And how long did you hold that

737:19 job?

737:20 A. Not long. I would say maybe

737:21 six months or so.

737:22 Q. And did you leave that position

737:23 and join the Army?

737:24 A. I did. I decided that there

737:25 had to be something better to life than being

738:01 a shipfitter, so I went by an Army recruiter

738:02 station one day and didn't know anything

738:03 about the Army, and stopped and went in and

738:04 - 739:02 Fallon, Eric (2020-09-04) 1:58

738:04 joined the Army. Re: [736:23 to 738:15] SUSTAINED

738:05 Q. Have any idea of what you Pltf Obj FRE 403, 611

738:06 wanted to do in the Army when you made that

738:07 decision?

738:08 A. I'm ashamed to admit this. I

738:09 was so ignorant that I didn't know that

738:10 people in the Army had jobs, so I just wanted

738:11 to join the Army.

738:12 And I wound up joining -- I was

738:13 probably a recruiter's dream. I wound up

738:14 joining as an artillery cannon crewman as a

738:15 private.

738:16 Q. And so tell me what kind of

738:17 position that is.

738:18 A. So a cannon crewman, I was an

738:19 enlisted private, and I served as a member of

738:20 a howitzer section which fired very large

738:21 projectiles as a form of indirect fire

738:22 support.

738:23 Q. And if somebody could go on

738:24 mute, we're hearing a lot of background on

738:25 this end.

739:01 How long did you serve in that

739:02 position and where did you serve?

739:03 - 740:05 Fallon, Eric (2020-09-04) 1:24

739:03 A. I was an enlisted soldier the Re: [739:14 to 741:04] OVERRULED

739:04 whole time I was in the artillery, from April Pltf Obj FRE 403, 611

739:05 of 1995 [sic] to the summer, I believe, of

739:06 1989. My first assignment was in Fort

739:07 Carson, Colorado. I think I was there for

739:08 about 18 months, and that followed basic

739:09 training which was in Oklahoma.

739:10 And then after approximately

739:11 18 months in Fort Carson, Colorado, I was

739:12 moved to Bonvolder, West Germany, where I

739:13 also served as a cannon crewman.

739:14 Q. Okay. So how did you get from

739:15 a private -- I'm assuming that was your

Page 2 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 3 of 50
739:16 initial --

739:17 A. Yes.

739:18 Q. How did you get from a private

739:19 to -- entering into becoming an officer?

739:20 What transpired that let that occur?

739:21 A. At that time, the Army had a

739:22 program called Green to Gold -- they may

739:23 still have it; I'm not sure -- where they

739:24 would award enlisted personnel a scholarship

739:25 to go to college to get a degree, to go

740:01 through an officer commissioning program and

740:02 then potentially come back onto active duty

740:03 as a commissioned officer.

740:04 Q. And did you ultimately enter

740:05 that Green to Gold program?

740:06 - 740:06 Fallon, Eric (2020-09-04) 0:01

740:06 A. I did, yes. Re: [739:14 to 741:04] OVERRULED

Pltf Obj FRE 403, 611

740:07 - 741:07 Fallon, Eric (2020-09-04) 1:03

740:07 Q. And as a result of entering the Re: [739:14 to 741:04] OVERRULED

740:08 Army's Green to Gold scholarship program, did Pltf Obj FRE 403, 611

740:09 that lead you to leaving the military and

740:10 attending college?

740:11 A. That did. My recollection, the

740:12 summer of 1989, I left the military and went

740:13 to college.

740:14 Q. Where did you go to school, and

740:15 what was your initial course of study?

740:16 A. I left -- I went to a small

740:17 school in the Mississippi delta called Delta

740:18 State University. I initially declared my

740:19 major as criminal justice. To be frank, I

740:20 just wanted to get a college degree in

740:21 something that I thought would be easy, get

740:22 my commission and come back on active duty.

740:23 But after I believe it was my

740:24 first semester at Delta State, I became

740:25 interested in audiology, requested that the

741:01 Army allow me to change my major, and they

741:02 did.

741:03 Q. And did you ultimately get a

741:04 degree from Delta State?

741:05 A. I did. I graduated with a

741:06 bachelor's of science degree from Delta

741:07 State.

741:08 - 742:10 Fallon, Eric (2020-09-04) 1:17

741:08 Q. Okay. And what was that in?

741:09 A. It was in general science.

741:10 General studies, I believe.

Page 3 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 4 of 50
741:11 Q. And then did you ultimately

741:12 further your education and obtain a degree

741:13 related to communications or audiology?

741:14 A. A combination of those, but the

741:15 focus was in audiology. At that time you had

741:16 to have a master's degree to practice

741:17 audiology, so I applied for and received an

741:18 educational delay before coming back on to

741:19 active duty.

741:20 I went to the University of

741:21 Mississippi, where I earned my master's of

741:22 science degree in communication disorders

741:23 with an emphasis in audiology. I believe I

741:24 was awarded that degree in November, December

741:25 of 1994.

742:01 Q. And then after you obtained

742:02 your master's degree, did you return to the

742:03 military, and were you accepted into the

742:04 military as an officer?

742:05 A. I was, yeah. Between Delta

742:06 State and Ole Miss, I received my commission.

742:07 Once I graduated from Ole Miss with my

742:08 master's degree, I was advanced to the rank

742:09 of first lieutenant because I had an advanced

742:10 degree.

742:11 - 743:14 Fallon, Eric (2020-09-04) 1:16

742:11 And my recollection is January Re: [742:11 to 743:14] Re: [742:11 to 743:14] Re: [742:14 to 742:25] OVERRULED

742:12 of 1994, I reported for duty at Fort Sam Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

742:13 Houston, Texas. behalf of Govt;403 behalf of Govt 403

742:14 Q. And what did you have to do in

742:15 order to become either licensed or have the

742:16 ability to practice as a clinical audiologist

742:17 in the military?

742:18 A. The Army's requirement was that

742:19 you obtain what's called a certificate of

742:20 clinical competency from an organization

742:21 called the American Speech, Language and

742:22 Hearing Association. And so the Army

742:23 assigned me to Brooke Army Medical Center at

742:24 Fort Sam Houston, Texas, to complete that

742:25 clinical competency.

743:01 Q. And then once you obtained the

743:02 clinical competency, did you serve in the

743:03 Army as an audiologist?

743:04 A. I did, yes.

743:05 Q. Okay. And so if you would, for

743:06 the first few years while you were an

743:07 audiologist in the military, can you describe

743:08 for the jury the kinds of job

743:09 responsibilities that you had and the places

743:10 that you served.

Page 4 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 5 of 50
743:11 A. My first assignment after

743:12 Brooke Army Medical Center, once I completed

743:13 my clinical competency work, I was assigned

743:14 to Fort Wainwright, Alaska, for four years

743:14 - 744:16 Fallon, Eric (2020-09-04) 1:15

743:14 to Fort Wainwright, Alaska, for four years Re: [742:11 to 743:14] Re: [742:11 to 743:14] Re: [744:16 to 745:09] OVERRULED

743:15 where I served as the US Army Alaska Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj Nonresponsive MIL G5

743:16 hearing -- chief of audiology and hearing behalf of Govt;403 - Speaking on behalf of Govt

743:17 conservation program officer. Re: [744:16 to 745:09] 403

743:18 Once that four-year assignment Re: [744:16 to 745:09] OVERRULED

743:19 was completed, I was rotated to Fort Gordon, Pltf Obj Strike Nonresponsive;

743:20 Georgia, at Eisenhower Army Medical Center MIL G5 - Speaking on behalf of

743:21 where I served as the chief of audiology and Govt; 403

743:22 hearing conservation.

743:23 And after that assignment, I

743:24 went to Fort Bragg, North Carolina, to Womack

743:25 Army Medical Center where I served as chief

744:01 of audiology and hearing conservation before

744:02 I moved out of the medical field, briefly,

744:03 into an operational assignment as an airborne

744:04 unit.

744:05 Q. When you say you moved into an

744:06 operational assignment, what does that mean?

744:07 A. That means I left what you

744:08 would probably refer to as a hospital, a

744:09 garrison type of assignment, into a field

744:10 unit which -- which could deploy and -- best

744:11 way to describe it, it had a wartime mission.

744:12 Q. And what detachment did you

744:13 ultimately get assigned to?

744:14 A. I was -- I was assigned as the

744:15 commander of the 714th medical detachment.

744:16 Q. And what sort of role and

744:16 - 745:09 Fallon, Eric (2020-09-04) 1:53

744:16 Q. And what sort of role and Re: [744:16 to 745:09] Re: [744:16 to 745:09] Re: [744:16 to 745:09] OVERRULED

744:17 responsibilities did you have, and what Pltf Obj Strike Nonresponsive; OVERRULED Pltf Obj Nonresponsive MIL G5

744:18 responsibility did that medical detachment MIL G5 - Speaking on behalf of - Speaking on behalf of Govt

744:19 have? Govt; 403 403

744:20 A. It was a preventive medicine

744:21 detachment, and a preventive medicine

744:22 detachment's responsibility is to provide

744:23 preventive medicine measures -- some people

744:24 may think of that as public health -- to try

744:25 to ward off disease among battle injuries for

745:01 soldiers that are in the field, primarily

745:02 engaged in combat.

745:03 Historically, more soldiers

745:04 have been noncombat ready due to disease of

745:05 non-battle injuries than to battle injuries.

745:06 So the Army has placed a significant amount

Page 5 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 6 of 50
745:07 of effort in trying to make sure that those

745:08 soldiers are healthy when they're in that

745:09 very austere environment.

745:13 - 746:07 Fallon, Eric (2020-09-04) 1:51

745:13 Q. When you led that unit, were

745:14 you deployed?

745:15 A. At some point I was deployed,

745:16 yes, to Iraq during the invasion of Iraq,

745:17 yes.

745:18 Q. And how long were you deployed

745:19 in Iraq as commander of the 714th medical

745:20 detachment?

745:21 A. I don't remember specifically.

745:22 It was somewhere, I think, between six and

745:23 eight months before I was redeployed to

745:24 inactivate that unit.

745:25 Q. And what did you do and what

746:01 did the 714th do during that stint in Iraq?

746:02 A. We provided preventive medicine

746:03 services, just kind of roamed the area

746:04 looking to do what we could do to try to make

746:05 sure that the forces stayed healthy, checking

746:06 water, checking food, performing all kind of

746:07 preventive medicine checks.

746:08 - 747:09 Fallon, Eric (2020-09-04) 1:01

746:08 Q. And as commander of that Re: [746:08 to 747:09] Re: [746:08 to 747:09] Re: [746:08 to 747:11] OVERRULED

746:09 detachment, what was your understanding of Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

746:10 why that was important? behalf of Govt; 403 behalf of Govt 403

746:11 A. It's my understanding of why

746:12 that was important because we wanted to

746:13 ensure that we had healthy -- a healthy

746:14 fighting force and that they weren't

746:15 suffering from either vector-borne disease

746:16 such as malaria or diarrheal disease from

746:17 eating, you know, bad food or drinking poor

746:18 water.

746:19 Q. Were you in or near active

746:20 combat in that role?

746:21 A. I was in or near it. I was

746:22 never directly engaged, yes.

746:23 Q. Did you at some point join the

746:24 Army hearing conservation program office?

746:25 A. Yes. After returning from Iraq

747:01 with the 714th medical detachment and

747:02 deactivating that unit, I was then moved to

747:03 Aberdeen Proving Ground in Maryland where I

747:04 was assigned to the Army hearing conservation

747:05 program office, the office at USACHPPM.

747:06 Q. And is that the organization

747:07 that would have been responsible for

Page 6 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 7 of 50
747:08 developing Army policy for hearing

747:09 conservation?

747:10 - 748:12 Fallon, Eric (2020-09-04) 1:08

747:10 A. That would have been one of its Re: [747:10 to 748:12] Re: [747:10 to 748:12] Re: [746:08 to 747:11] OVERRULED

747:11 responsibilities, yes. Pltf Obj MIL G5 - Speaking on DEFER RULING Pltf Obj MIL G5 - Speaking on

747:12 Q. And you were there from 2003 behalf of Govt; 403 behalf of Govt 403

747:13 until when?

747:14 A. It seemed like it was a long

747:15 assignment because of some other deployments,

747:16 but it was either from 2003 till late in 2009

747:17 or early 2010. I don't remember the exact

747:18 date.

747:19 Q. And when you first joined the

747:20 hearing conservation program office, what was

747:21 your role?

747:22 A. I was a consulting audiologist.

747:23 I don't remember the exact title, but I was

747:24 the military audiologist assigned to a

747:25 primarily civilian office.

748:01 Q. And did you ultimately become

748:02 the program manager for that office?

748:03 A. I did, upon that program

748:04 manager's retirement.

748:05 Q. Yeah.

748:06 Were you also deployed during

748:07 your time at the Army hearing conservation

748:08 program office?

748:09 A. Yes, I was deployed twice, once

748:10 back to Iraq, and then I was also deployed as

748:11 a preventive medicine staff officer for Joint

748:12 Task Force Katrina following that hurricane.

748:13 - 749:13 Fallon, Eric (2020-09-04) 1:02

748:13 Q. So the deployment to Iraq, was Re: [748:13 to 749:13] Re: [748:13 to 749:13] Re: [748:17 to 750:09] OVERRULED

748:14 that in Baghdad? Pltf Obj MIL G5 - Speaking on DEFER RULING Pltf Obj MIL G5 - Speaking on

748:15 A. That was in Baghdad, that's behalf of Govt; 403 behalf of Govt 403

748:16 correct.

748:17 Q. And what sort of role and

748:18 responsibility did you have in that?

748:19 A. My responsibility was to set up

748:20 and test individuals who had -- who were

748:21 complaining of hearing impairment, my

748:22 recollection is primarily to IED attacks.

748:23 Because if we didn't offer hearing testing in

748:24 theater, they had to go all the way back to

748:25 Germany to get a hearing test, and it could

749:01 take quite some time to get those individuals

749:02 back in theater.

749:03 Q. And then when you left the Army

749:04 hearing conservation program office, what was

749:05 your next assignment?

Page 7 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 8 of 50
749:06 A. Once I moved from the Army

749:07 hearing conservation program office, which

749:08 actually had been renamed to the Army hearing

749:09 program office, I went to the Army Research

749:10 Lab.

749:11 Q. And during the time you were at

749:12 the Army Research Lab, what was your general

749:13 job responsibility?

749:14 - 750:12 Fallon, Eric (2020-09-04) 1:08

749:14 A. I was a consulting military Re: [748:17 to 750:09] OVERRULED

749:15 audiologist at the Army Research Lab, which Pltf Obj MIL G5 - Speaking on

749:16 again was primarily composed of civilian behalf of Govt 403

749:17 employees and researchers.

749:18 Q. And were you again deployed Re: [750:10 to 750:15] OVERRULED

749:19 during the time that you were at the ARL? Pltf Obj MIL G5 - Speaking on

749:20 A. I was. I was tasked with going behalf of Govt 403

749:21 to Afghanistan to field a counter-IED device

749:22 to route clearance patrol.

749:23 Q. And you say to clear an IED

749:24 device. Just so that the jury understands,

749:25 what were you doing?

750:01 A. The Army had adopted a

750:02 technology that, for lack of a better word,

750:03 it looked like a mine detector, but it

750:04 looked -- it looked for command wire that

750:05 would have been laid to detonate IEDs. And

750:06 there were route patrols whose primary

750:07 responsibility was to walk along military

750:08 routes every day to see if they could locate

750:09 IEDs.

750:10 Q. And how long were you deployed

750:11 in -- on this occasion, this counter-IED

750:12 deployment that you had?

750:13 - 751:12 Fallon, Eric (2020-09-04) 1:58

750:13 A. I don't recall. Time is a blur Re: [750:13 to 751:12] Re: [750:13 to 751:12] Re: [750:10 to 750:15] SUSTAINED

750:14 when you're deployed. I think it was maybe Pltf Obj MIL G5 - Speaking on SUSTAINED Pltf Obj MIL G5 - Speaking on

750:15 four months, somewhere in that time frame. behalf of Govt; MIL S8 - behalf of Govt 403

750:16 Q. And what was your last job in Bolstering

750:17 the military before you retired? Re: [750:22 to 751:17] SUSTAINED

750:18 A. My last job following the Army Pltf Obj MIL G5 - Speaking on

750:19 Research Lab position was as director of behalf of Govt MIL S8 -

750:20 audiology and speech in research at Walter Bolstering, 403

750:21 Reed.

750:22 Q. And did you retire in good

750:23 standing from that position?

750:24 A. I did, yes.

750:25 Q. And as a result of your work in

751:01 the Army, did you receive awards or

751:02 commendations?

751:03 A. I did, yes.

Page 8 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 9 of 50
751:04 Q. And can you describe briefly

751:05 for the jury at least a sampling of those

751:06 awards or commendations that you were

751:07 acknowledged for?

751:08 A. I received the Bronze Star for

751:09 my first tour in Iraq.

751:10 I received several, I don't

751:11 know how many, meritorious service medals, a

751:12 number of Army commendation medals.

751:13 - 752:13 Fallon, Eric (2020-09-04) 1:07

751:13 I received hearing a Re: [752:13 to 753:13] Re: [752:13 to 753:13] Re: [750:22 to 751:17] OVERRULED

751:14 conservation award from the military Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

751:15 audiology association, the Elizabeth Banks behalf of Govt behalf of Govt MIL S8 -

751:16 [sic] award I think it was, and then various Bolstering, 403

751:17 other small awards.

751:18 Q. And then when you left the Re: [752:11 to 753:13] OVERRULED

751:19 military, did you go to work for 3M? Pltf Obj MIL G5 - Speaking on

751:20 A. I did. When I retired from the behalf of Govt

751:21 Army, I went to work for 3M, yes.

751:22 Q. And what was the title that you

751:23 took when you went to work for 3M?

751:24 A. I was -- I believe it was a

751:25 technical service specialist at 3M,

752:01 supporting the military swarm and global

752:02 military business.

752:03 Q. And have you been in that or a

752:04 similar role since your retirement?

752:05 A. I've been in a similar role

752:06 since my retirement, yes.

752:07 Q. Now, I want to return to the

752:08 Army hearing conservation program office.

752:09 Can you tell the jury under

752:10 what military structure that office exists?

752:11 A. That office existed basically,

752:12 if I remember right, under the Surgeon

752:13 General's office and was a preventive

752:13 - 753:13 Fallon, Eric (2020-09-04) 1:25

752:13 General's office and was a preventive Re: [752:13 to 753:13] Re: [752:13 to 753:13] Re: [752:11 to 753:13] OVERRULED

752:14 medicine unit that helped provide preventive Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

752:15 medicine policy, one of those being hearing behalf of Govt behalf of Govt

752:16 conservation policy, and support to the Army.

752:17 Q. Was it part of what we've heard

752:18 over the last couple of days, USACHPPM?

752:19 A. At that time, that's right, it

752:20 was USACHPPM.

752:21 Q. And what is USACHPPM?

752:22 A. USACHPPM stands for United

752:23 States Army Center for Health Promotion and

752:24 Preventive Medicine.

752:25 Q. And can you describe for the

Page 9 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 10 of 50
753:01 jury what the Army hearing conservation

753:02 program office was tasked with performing

753:03 during the time you were there?

753:04 A. My understanding of our mission

753:05 was to help guide US Army policy as it

753:06 related to a hearing conservation program as

753:07 set forth by the Department of Defense. And

753:08 it really kind of -- anything that fit into

753:09 that, supporting the installation hearing

753:10 conservation program managers. And part of

753:11 that would have been the Surgeon General's

753:12 responsibility of having adequate policy to

753:13 support a hearing conservation program.

753:19 - 754:04 Fallon, Eric (2020-09-04) 1:30

753:19 Q. In your personal observations, Re: [753:19 to 754:04] Re: [753:19 to 754:04] Re: [753:19 to 754:04] OVERRULED

753:20 did the hearing conservation program office Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

753:21 implement the military hearing conservation behalf of Govt; 403; 602 behalf of Govt 403 602

753:22 requirements?

753:23 A. They did with regards to policy

753:24 and supporting installation hearing

753:25 conservation program managers.

754:01 Q. And did that include policy

754:02 related to hearing protection devices?

754:03 A. That would have included that,

754:04 yes.

754:15 - 755:04 Fallon, Eric (2020-09-04) 3:32

754:15 Q. So let me rephrase it. Re: [754:15 to 755:04] Re: [754:15 to 755:04] Re: [754:16 to 756:08] OVERRULED

754:16 What did you understand was Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

754:17 the -- governed the individual branches of behalf of Govt; 403 behalf of Govt 403

754:18 requirements for hearing conservation were?

754:19 A. My understanding was that there

754:20 was a Department of Defense instruction that

754:21 instructed all of the components of the

754:22 Department of Defense, the military branches,

754:23 to establish a hearing conservation program.

754:24 My understanding is it outlined some minimum

754:25 requirements that those components had to

755:01 establish.

755:02 Q. Dave, if you can pull Tab 7?

755:03 If you'll mark this as whatever the next

755:04 exhibit is.

755:13 - 756:08 Fallon, Eric (2020-09-04) 1:44

755:13 Q. Dr. Fallon, do you have in Re: [755:13 to 756:08] Re: [755:13 to 756:08] Re: [754:16 to 756:08] OVERRULED

755:14 front of you what I think has been re-marked Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

755:15 as Exhibit 63? I know there's been some behalf of Govt; 403 behalf of Govt 403

755:16 confusion about that.

755:17 A. I have the Department of

755:18 Defense Instruction Number 6055.12. I think

755:19 it was 64 when I clicked on it, but that's

Page 10 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 11 of 50
755:20 what I have open right now.

755:21 Q. So that's now been marked as

755:22 Exhibit Number 63.

755:23 Can you identify this document

755:24 for the jury, please?

755:25 A. It is the Department of Defense

756:01 Instruction 6055.12, dated April 22, 1996.

756:02 Q. And is this what you described

756:03 as the minimum requirements that the

756:04 Department of Defense provided to the various

756:05 branches for their hearing conservation

756:06 programs?

756:07 A. This is what I was referring

756:08 to, yes.

756:09 - 756:15 Fallon, Eric (2020-09-04) 0:17

756:09 Q. And in fact, we looked at a

756:10 later version of this earlier today that I

756:11 think was dated 2005, correct?

756:12 A. I believe so, yes. It was

756:13 updated later, yeah.

756:14 Q. And if you'll turn over to 6.1,

756:15 which is on page 3 of the document.

756:20 - 757:13 Fallon, Eric (2020-09-04) 1:46

756:20 A. Okay. I see that. Re: [756:20 to 757:13] Re: [756:20 to 757:13] Re: [756:21 to 757:13] OVERRULED

756:21 Q. And is there a requirement Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

756:22 about whether each branch should have a behalf of Govt; 403 behalf of Govt 403

756:23 hearing conservation program in writing?

756:24 A. There is.

756:25 Q. And what is the requirement?

757:01 A. It says, "The DOD components

757:02 shall prepare a written plan for the

757:03 implementation of a comprehensive hearing

757:04 conservation program."

757:05 Q. And if we turn over to

757:06 Section 6.6.2 that is on page 7, and just let

757:07 me know when you get there.

757:08 A. Okay. 6.6.2?

757:09 Q. Right.

757:10 Does the DOD instruction

757:11 address whether or not personal hearing

757:12 protectors should be provided?

757:13 A. They do, yes.

758:03 - 758:03 Fallon, Eric (2020-09-04) 0:02

758:03 A. It was that DOD components Re: [758:03 to 758:03] Re: [758:03 to 758:03] Re: [758:03 to 758:07] OVERRULED

Pltf Obj 602; MIL G5 - OVERRULED Pltf Obj 602 MIL G5 - Speaking

Speaking on behalf of Govt; on behalf of Govt Incomplete

Incomplete Designation Designation 403

758:04 - 758:07 Fallon, Eric (2020-09-04) 0:10

Page 11 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 12 of 50
758:04 shall issue personal hearing protections -- Re: [758:04 to 758:07] Re: [758:04 to 758:07] Re: [758:03 to 758:07] OVERRULED

758:05 protectors free to all personnel who work in Pltf Obj 602; MIL G5 - OVERRULED Pltf Obj 602 MIL G5 - Speaking

758:06 designated hazardous noise areas or operate Speaking on behalf of Govt; on behalf of Govt Incomplete

758:07 noise-hazardous equipment. Incomplete Designation; 403 Designation 403

759:01 - 759:03 Fallon, Eric (2020-09-04) 0:07

759:01 Q. If you'll turn to 6.6.7 on

759:02 page 8, does it provide instructions specific

759:03 to preformed earplugs?

759:08 - 759:24 Fallon, Eric (2020-09-04) 1:36

759:08 THE WITNESS: Yes, that Re: [759:08 to 759:24] Re: [759:08 to 759:24] Re: [759:17 to 760:02] OVERRULED

759:09 paragraph seems to state that, yes. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

759:10 QUESTIONS BY MR. MORRISS: behalf of Govt behalf of Govt

759:11 Q. And can you just read 6.6.7 to

759:12 the jury?

759:13 A. 6.6.7 says, "Preformed earplugs

759:14 shall be fitted and issued only under the

759:15 supervision of personnel who have been

759:16 specifically trained to fit earplugs."

759:17 Q. All right. And what was your

759:18 understanding about a preformed earplug

759:19 during your time with the hearing

759:20 conservation office? What did that mean to

759:21 you?

759:22 A. I would define a preformed

759:23 earplug as one that does not have to be

759:24 hand-formed. That's how I would define it.

759:25 - 760:02 Fallon, Eric (2020-09-04) 0:04

759:25 Q. And would that include the Re: [759:17 to 760:02] OVERRULED

760:01 Combat Arms dual-ended plug that we talked Pltf Obj MIL G5 - Speaking on

760:02 about today? behalf of Govt

760:12 - 760:23 Fallon, Eric (2020-09-04) 1:38

760:12 Q. Is it your understanding that Re: [760:12 to 760:23] Re: [760:12 to 760:23] Re: [760:12 to 761:02] OVERRULED

760:13 the preformed earplugs included the Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

760:14 dual-ended version of the Combat Arms? behalf of Govt behalf of Govt, Foundation

760:15 A. That is my understanding, yes.

760:16 Q. And did the instruction under

760:17 6.6.9 describe what kind of personnel was

760:18 responsible for examining the fit and the

760:19 condition of these preformed plugs?

760:20 A. 6.6.9 states: "Medically

760:21 trained personnel must examine the fit and

760:22 condition of preformed and custom earplugs at

760:23 least annually."

760:24 - 761:02 Fallon, Eric (2020-09-04) 0:10

760:24 Q. And were these requirements Re: [760:12 to 761:02] OVERRULED

760:25 that we've talked about, were they in place Pltf Obj MIL G5 - Speaking on

761:01 during the entire time that you were part of behalf of Govt, Foundation

Page 12 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 13 of 50
761:02 the Army hearing conservation program office?

761:07 - 761:09 Fallon, Eric (2020-09-04) 0:04

761:07 THE WITNESS: It is my belief Re: [761:07 to 761:09] Re: [761:07 to 761:09] Re: [761:07 to 761:15] OVERRULED

761:08 and understanding that they were in Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 403, 602

761:09 effect, yes. That's correct. behalf of Govt

Re: [761:07 to 761:15] OVERRULED

Pltf Obj MIL G5 - Speaking on

behalf of Govt

761:10 - 761:15 Fallon, Eric (2020-09-04) 0:15

761:10 QUESTIONS BY MR. MORRISS: Re: [761:10 to 761:15] Re: [761:10 to 761:15] Re: [761:07 to 761:15] OVERRULED

761:11 Q. And were you made aware of Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 403, 602

761:12 whether or not the Army, in fact, implemented behalf of Govt

761:13 these instructions? Re: [761:07 to 761:15] OVERRULED

761:14 A. Yes, I believe that the Army Pltf Obj MIL G5 - Speaking on

761:15 implemented these instructions. behalf of Govt

761:18 - 761:19 Fallon, Eric (2020-09-04) 0:12

761:18 (Fallon Exhibit 64 marked for Re: [761:18 to 761:19] Re: [761:18 to 761:19]

761:19 identification.) Pltf Obj MIL G5 - Speaking on OVERRULED

behalf of Govt

761:23 - 762:15 Fallon, Eric (2020-09-04) 1:54

761:23 A. So what I see as 64 is DA PAM Re: [761:23 to 762:15] Re: [761:23 to 762:15] Re: [762:01 to 762:15] OVERRULED

761:24 40-501. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

761:25 Q. What is DA PAM 40-501? behalf of Govt behalf of Govt

762:01 A. DA PAM 40-501 is a Department

762:02 of the Army pamphlet titled "Hearing

762:03 Conservation Program."

762:04 And it's my understanding that

762:05 it outlined how the Army was going to meet

762:06 the Department of Defense instruction

762:07 requirements that you mentioned earlier.

762:08 Q. And what is the date of this

762:09 particular pamphlet?

762:10 A. This pamphlet is dated 10

762:11 December 1998.

762:12 Q. And was this in force during

762:13 your time at the Army hearing conservation

762:14 program office?

762:15 A. That is my understanding, yes.

763:17 - 763:19 Fallon, Eric (2020-09-04) 0:05

763:17 So if we turn to page 5,

763:18 Chapter 6, it's entitled "Hearing

763:19 Protectors," correct?

763:20 - 763:20 Fallon, Eric (2020-09-04) 0:01

763:20 A. That is correct, yes.

764:06 - 764:15 Fallon, Eric (2020-09-04) 0:24

764:06 Q. What was your understanding Re: [764:06 to 764:15] Re: [764:06 to 764:15] Re: [764:06 to 764:15] OVERRULED

Page 13 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 14 of 50
764:07 about whether the DOD instruction required Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

764:08 that the military make hearing protection behalf of Govt behalf of Govt

764:09 devices available to military personnel?

764:10 A. My understanding was that the

764:11 services had to make hearing protection

764:12 available free of charge to personnel that

764:13 are exposed to hazardous noise, either by

764:14 area or equipment. I'm sort of summarizing

764:15 that.

764:25 - 765:07 Fallon, Eric (2020-09-04) 0:15

764:25 Q. Well, let me ask you this: You

765:01 were in the hearing conservation program

765:02 office; is that right, Dr. Fallon?

765:03 A. That is correct, yes.

765:04 Q. Like in that office -- and in

765:05 fact, during part of the time there, you were

765:06 the program manager; is that correct?

765:07 A. That is correct, yes.

765:14 - 765:21 Fallon, Eric (2020-09-04) 0:12

765:14 THE WITNESS: That -- that is Re: [765:14 to 765:21] Re: [765:14 to 765:21] Re: [765:14 to 765:25] OVERRULED

765:15 true, yes. That's my understanding. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 403

765:16 QUESTIONS BY MR. MORRISS: behalf of Govt

765:17 Q. Well, let me rephrase it. Re: [765:14 to 765:25] OVERRULED

765:18 Did your job and responsibility Pltf Obj MIL G5 - Speaking on

765:19 require you to make sure that the Army's behalf of Govt

765:20 hearing conservation program was compliant

765:21 with the DOD instruction?

765:24 - 765:25 Fallon, Eric (2020-09-04) 0:01

765:24 THE WITNESS: Yes, I believe Re: [765:24 to 765:25] Re: [765:24 to 765:25] Re: [765:14 to 765:25] OVERRULED

765:25 so, yes. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 403

behalf of Govt

Re: [765:14 to 765:25] OVERRULED

Pltf Obj MIL G5 - Speaking on

behalf of Govt

766:02 - 766:04 Fallon, Eric (2020-09-04) 0:06

766:02 Q. So you have knowledge of these Re: [766:02 to 766:04] Re: [766:02 to 766:04] Re: [766:02 to 766:21] OVERRULED

766:03 requirements based on your personal role in Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

766:04 the military, correct? behalf of Govt; 403 behalf of Govt, 403

766:07 - 766:21 Fallon, Eric (2020-09-04) 1:37

766:07 THE WITNESS: I do, yes. Re: [766:07 to 766:21] Re: [766:07 to 766:21] Re: [766:02 to 766:21] OVERRULED

766:08 QUESTIONS BY MR. MORRISS: Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

766:09 Q. So if we turn now to behalf of Govt; 403 behalf of Govt, 403

766:10 Section 6-3, which is on page 6, does it also

766:11 have a section that deals specifically with

766:12 preformed earplugs?

766:13 A. I'm sorry, I'm getting there.

766:14 6-3?

Page 14 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 15 of 50
766:15 Q. On page 6.

766:16 A. Yes, I do see preformed

766:17 earplugs.

766:18 Q. Okay. And what does the Army

766:19 written policy say about how preformed

766:20 earplugs like the dual-ended Combat Arms

766:21 Earplug should be fit and examined?

766:25 - 767:24 Fallon, Eric (2020-09-04) 1:58

766:25 THE WITNESS: This says, Re: [766:25 to 767:24] Re: [766:25 to 767:24] Re: [766:25 to 769:20] OVERRULED

767:01 "Preformed earplugs are triple or Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

767:02 single-flange earplugs," but I also behalf of Govt; 403 behalf of Govt, 403

767:03 consider the Combat Arms Earplug to be

767:04 preformed.

767:05 And it says, "Medically trained

767:06 personnel must fit and examine these

767:07 earplugs at least annually to ensure

767:08 proper fit and condition."

767:09 QUESTIONS BY MR. MORRISS:

767:10 Q. And was it your understanding

767:11 that under the Army policy -- well, let me

767:12 ask it this way.

767:13 What was your understanding

767:14 about what Army policy would require for any

767:15 soldier that was going to be fit with a

767:16 hearing protection device like the Combat

767:17 Arms dual-ended plug?

767:18 A. My understanding is that that

767:19 must be fit by medically trained personnel,

767:20 if I'm understanding the question right.

767:21 Q. Let me make sure.

767:22 So we're looking at 6-3, and

767:23 this is from the Army pamphlet, correct?

767:24 A. This is part of the DA PAM

767:25 - 768:08 Fallon, Eric (2020-09-04) 0:21

767:25 40-501, yes. Re: [767:25 to 768:08] Re: [767:25 to 768:08] Re: [766:25 to 769:20] OVERRULED

768:01 Q. It has a section on how Pltf Obj MIL G5 - Speaking on DEFER RULING Pltf Obj MIL G5 - Speaking on

768:02 preformed earplugs should be fit and behalf of Govt; 403 behalf of Govt, 403

768:03 examined; is that right?

768:04 A. That is correct, yes.

768:05 Q. And so based on this policy,

768:06 what would be sort of the practical impact of

768:07 how a soldier should be fit with a preformed

768:08 plug like the Combat Arms dual-ended plug?

768:13 - 768:20 Fallon, Eric (2020-09-04) 0:27

768:13 THE WITNESS: That it should be Re: [768:13 to 768:20] Re: [768:13 to 768:20] Re: [766:25 to 769:20] OVERRULED

768:14 fit by medically trained personnel. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

768:15 QUESTIONS BY MR. MORRISS: behalf of Govt; 403 behalf of Govt, 403

768:16 Q. Now, who within the Army had

768:17 the responsibility to actually fit and

Page 15 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 16 of 50
768:18 examine hearing protection devices as we've

768:19 been discussing in these Army policy

768:20 provisions?

768:24 - 769:20 Fallon, Eric (2020-09-04) 1:45

768:24 THE WITNESS: Primarily in my Re: [768:24 to 769:20] Re: [768:24 to 769:20] Re: [766:25 to 769:20] OVERRULED

768:25 experience, it would have been what I Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

769:01 would call a hearing conservation behalf of Govt; 403 behalf of Govt, 403

769:02 technician assigned at an installation

769:03 level.

769:04 It could have been an

769:05 audiologist under certain conditions,

769:06 but it -- there are also instances

769:07 where it could have been an

769:08 occupational health nurse if that

769:09 person or technician, if they had been

769:10 through a hearing conservation

769:11 technician course.

769:12 But by and large, it would have

769:13 been a hearing conservation

769:14 technician, in my experience.

769:15 QUESTIONS BY MR. MORRISS:

769:16 Q. So how were these hearing

769:17 technicians or industrial hygiene nurses, how

769:18 were they trained on the fitting of hearing

769:19 protection devices?

769:20 A. Well, it would have been --

770:02 - 770:16 Fallon, Eric (2020-09-04) 1:39

770:02 QUESTIONS BY MR. MORRISS: Re: [770:02 to 770:16] Re: [770:02 to 770:16] Re: [770:03 to 770:24] OVERRULED

770:03 Q. Well, let me ask you this: Do Pltf Obj 602; MIL G5 - OVERRULED Pltf Obj MIL G5 - Speaking on

770:04 you know personally how the folks that were Speaking on behalf of Govt behalf of Govt, nonresponsive

770:05 fitting these hearing protection devices in

770:06 the Army were trained?

770:07 A. My experience was that they

770:08 were trained, and I did participate in

770:09 training courses; that they would have gone

770:10 through a certification course to become

770:11 hearing conservation technicians. And they

770:12 could have achieved -- they could have been

770:13 trained at either installation-level or maybe

770:14 even at the Army hearing conservation program

770:15 office at USACHPPM.

770:16 Q. So did the Army hearing

770:17 - 770:17 Fallon, Eric (2020-09-04) 0:03

770:17 conservation program office that you were Re: [770:17 to 770:17] Re: [770:17 to 770:17] Re: [770:03 to 770:24] OVERRULED

Pltf Obj 602; MIL G5 - OVERRULED Pltf Obj MIL G5 - Speaking on

Speaking on behalf of Govt behalf of Govt, nonresponsive

Re: [770:17 to 770:20]

770:17 - 770:20 Fallon, Eric (2020-09-04) 0:12 Re: [770:17 to 770:20] OVERRULED

770:17 conservation program office that you were Pltf Obj MIL G5 - Speaking onRe: [770:17 to 770:17] Re: [770:17 to 770:17] Re: [770:03 to 770:24] OVERRULED

Page 16 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 17 of 50
770:18 part of participate in the training of these behalf of GovtPltf Obj 602; MIL G5 - OVERRULED Pltf Obj MIL G5 - Speaking on

770:19 technicians and others that actually had the Speaking on behalf of Govt behalf of Govt, nonresponsive

770:20 responsibility to fit and examine earplugs? Re: [770:17 to 770:20]

Re: [770:17 to 770:20] OVERRULED

770:23 - 770:24 Fallon, Eric (2020-09-04) 0:02 Pltf Obj MIL G5 - Speaking on

770:23 THE WITNESS: We did conduct behalf of Govt Re: [770:03 to 770:24] OVERRULED

770:24 the certification courses, yes. Pltf Obj MIL G5 - Speaking on

behalf of Govt, nonresponsive

771:02 - 771:14 Fallon, Eric (2020-09-04) 1:30

771:02 Q. And did you personally make Re: [771:02 to 771:14] Re: [771:02 to 771:14] Re: [771:02 to 772:08] OVERRULED

771:03 these training presentations to technicians Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

771:04 and others about hearing protection devices behalf of Govt behalf of Govt

771:05 and hearing conservation?

771:06 A. I did personally make these

771:07 presentations, and I witnessed other -- my

771:08 other staff members or co-staff members make

771:09 these presentations as well.

771:10 Q. And what were the tools or

771:11 resources that were used to teach the

771:12 technicians and others on the specifics about

771:13 hearing conservation and hearing protection

771:14 devices?

771:17 - 772:08 Fallon, Eric (2020-09-04) 1:43

771:17 THE WITNESS: We would use Re: [771:17 to 772:08] Re: [771:17 to 772:08] Re: [771:02 to 772:08] OVERRULED

771:18 PowerPoint presentations. We would Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

771:19 have -- we made binders up that the behalf of Govt behalf of Govt

771:20 students could use as reference

771:21 materials. We would have provided

771:22 pertinent military regulations and

771:23 guidance. We would have performed

771:24 hands-on training either with earplug

771:25 fitting exercises or hearing testing

772:01 exercises. So we would have used a

772:02 variety of training materials.

772:03 Specifically to the Combat Arms

772:04 Earplug, we would have handed out

772:05 wallet cards for the Combat Arms

772:06 Earplug.

772:07 So we would have used a variety

772:08 of methods.

772:17 - 772:22 Fallon, Eric (2020-09-04) 0:14

772:17 Q. As it relates to -- generally Re: [772:17 to 772:22] Re: [772:17 to 772:22] Re: [772:17 to 772:22] OVERRULED

772:18 to how to fit a hearing protection device, Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

772:19 give the jury some examples -- not specific behalf of Govt behalf of Govt

772:20 to the Combat Arms, but just generally the

772:21 kinds of things that these technicians would

772:22 be taught in these training classes.

772:25 - 773:21 Fallon, Eric (2020-09-04) 1:49

Page 17 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 18 of 50
772:25 THE WITNESS: They would have Re: [772:25 to 773:21] Re: [772:25 to 773:21] Re: [772:25 to 775:03] OVERRULED

773:01 been taught how to get the ear ready Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

773:02 to receive a hearing protection behalf of Govt; 602 behalf of Govt, 602,

773:03 device. nonresponsive, compound

773:04 Actually, I can even back up

773:05 from that.

773:06 As part of these courses, they

773:07 would have received training on the

773:08 anatomy and physiology of the ear.

773:09 That would have included diseases and

773:10 abnormal pathologies of the ear so

773:11 that they could identify whether or

773:12 not someone's ear canal was healthy

773:13 enough to be fit with a hearing

773:14 protector and that there were no

773:15 medical contraindications.

773:16 They would have been taught how

773:17 to pull outwards and back on the outer

773:18 ear to open up the ear canal for

773:19 fitting, and then based on a variety

773:20 of hearing protectors, how to get that

773:21 earplug ready to be fit.

773:23 - 774:02 Fallon, Eric (2020-09-04) 0:11

773:23 Q. How about how to determine Re: [773:23 to 774:02] Re: [773:23 to 774:02] Re: [772:25 to 775:03] OVERRULED

773:24 whether or not a particular soldier or Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

773:25 personnel actually had a good fit? Were behalf of Govt; 602 behalf of Govt, 602,

774:01 there ways to determine that that these nonresponsive, compound

774:02 technicians were thought?

774:05 - 775:03 Fallon, Eric (2020-09-04) 1:45

774:05 THE WITNESS: We would have Re: [774:05 to 775:03] Re: [774:05 to 775:03] Re: [772:25 to 775:03] OVERRULED

774:06 taught them a number of things: Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

774:07 number one, what we would call a behalf of Govt; 602; Strike behalf of Govt, 602,

774:08 vacuum test. If you have an Nonresponsive nonresponsive, compound

774:09 appropriately fit hearing protector to

774:10 tug on it, you should feel a vacuum on

774:11 the other side of it.

774:12 An obvious one is that the

774:13 sound is reduced. You're listening to

774:14 environmental sounds with an open ear

774:15 canal; you put an earplug in, things

774:16 should sound muffled.

774:17 To say something, and if you

774:18 have a good seal, your voice should

774:19 sound deeper to you, what we call the

774:20 occlusion effect.

774:21 Another technique that I would

774:22 sometime use is if you have an earplug

774:23 that is appropriately fit, you can

774:24 take your hand and cup it over the

774:25 ear, and you really shouldn't hear a

Page 18 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 19 of 50
775:01 further significant reduction.

775:02 Those are the types of things

775:03 that we would have utilized.

775:10 - 775:17 Fallon, Eric (2020-09-04) 0:21

775:10 Q. In addition to these trainings Re: [775:10 to 775:17] Re: [775:10 to 775:17] Re: [775:10 to 775:17] OVERRULED

775:11 that were directed toward the technicians or Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

775:12 the people in the field fitting the plugs, behalf of Govt behalf of Govt

775:13 did the Army hearing conservation program

775:14 office also have training sessions or courses

775:15 that were specific to the audiologists that

775:16 might be working in a particular

775:17 installation?

775:20 - 775:22 Fallon, Eric (2020-09-04) 0:03

775:20 THE WITNESS: There would have Re: [775:20 to 775:22] Re: [775:20 to 775:22] Re: [775:20 to 775:22] OVERRULED

775:21 been ways of training those Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

775:22 audiologists as well. behalf of Govt behalf of Govt

776:16 - 776:21 Fallon, Eric (2020-09-04) 0:15

776:16 Q. So let me ask it again. Re: [776:16 to 776:21] Re: [776:16 to 776:21] Re: [776:16 to 776:21] OVERRULED

776:17 So did the Army hearing Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

776:18 conservation program office also train behalf of Govt behalf of Govt

776:19 audiologists who would have been at different

776:20 installations throughout the United States?

776:21 A. Yes.

776:24 - 777:04 Fallon, Eric (2020-09-04) 0:11

776:24 Q. And can you describe for the Re: [776:24 to 777:04] Re: [776:24 to 777:04] Re: [776:24 to 777:04] OVERRULED

776:25 jury the way these audiologists would have Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

777:01 been trained? behalf of Govt behalf of Govt

777:02 What were the vehicles that

777:03 allowed the hearing conservation program

777:04 office to train audiologists?

777:11 - 780:05 Fallon, Eric (2020-09-04) 3:59

777:11 THE WITNESS: One method would Re: [777:11 to 780:05] Re: [777:11 to 780:05] Re: [777:11 to 780:10] OVERRULED

777:12 be what was referred to at that time Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 602; 701

777:13 as military audiology short courses, behalf of Govt

777:14 where all military audiologists were Re: [777:11 to 780:10] OVERRULED

777:15 brought to a location for training and Pltf Obj MIL G5 - Speaking on

777:16 presentations and meetings. behalf of Govt

777:17 Another form would have been to

777:18 bring new audiologists to the Army

777:19 hearing conservation program office

777:20 for training. The Army hearing

777:21 conservation program office may also

777:22 occasionally host just a hearing

777:23 conservation conference and bring

777:24 officers to that as well.

777:25

778:01 QUESTIONS BY MR. MORRISS:

Page 19 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 20 of 50
778:02 Q. Now, we've talked a good bit

778:03 about the Combat Arms dual-ended plug, and I

778:04 want to follow up on some of that.

778:05 Were you familiar with the

778:06 Combat Arms dual-ended plug during the time

778:07 that you were working at the Army hearing

778:08 conservation program office?

778:09 A. Yes, I was familiar with the

778:10 dual-ended, the Combat Arms Earplug, during

778:11 that time.

778:12 Q. All right. And just so we get

778:13 oriented, can you describe the plug to the

778:14 jury and your understanding of how it worked?

778:15 A. The dual-ended Combat Arms

778:16 Earplug had two capabilities. It served as a

778:17 passive hearing protector, but it also had a

778:18 functional capacity to serve as what we call

778:19 a level-dependent hearing protector.

778:20 So in a nutshell, the passive

778:21 protector just kind of plugged your ear up

778:22 and protected you up to a certain point

778:23 against hazardous noise.

778:24 The level-dependent capability

778:25 was designed to be used in quiet, which

779:01 sounds strange, but in quiet to allow some

779:02 sound to pass through, but if there was a

779:03 certain -- a sudden exposure to impulse

779:04 noise, to offer you protection against

779:05 impulse noise.

779:06 Q. These training courses that you

779:07 led where technicians were the audience, did

779:08 your training sessions have information

779:09 specific to the Combat Arms dual-ended plug?

779:10 A. Yes, those training sessions

779:11 addressed the dual-ended Combat Arms Earplug.

779:12 Q. Do you recall about how often

779:13 these technician courses were taught?

779:14 A. My recollection is they weren't

779:15 on a routine. They were just taught as

779:16 needed.

779:17 And remember, we -- at the Army

779:18 hearing conservation program office, we were

779:19 just -- we were on a -- some of those

779:20 courses. They were also taught at the

779:21 installation level. But my recommendation is

779:22 that we would teach somewhere between six and

779:23 eight of those at the Army hearing

779:24 conservation program office.

779:25 Q. And when you made your

780:01 presentations, did you include specific

780:02 instructions relating to how the Combat Arms

780:03 dual-ended earplug should be fit?

Page 20 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 21 of 50
780:04 A. I did, yes.

780:05 Q. Now, we had a lot of discussion

780:06 - 780:10 Fallon, Eric (2020-09-04) 0:15

780:06 about the third flange. Re: [780:06 to 780:10] Re: [780:06 to 780:10] Re: [777:11 to 780:10] OVERRULED

780:07 Do you recall learning that Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 602; 701

780:08 there was a fitting tip relating to the outer behalf of Govt

780:09 third flange of the dual-ended Combat Arms Re: [777:11 to 780:10] OVERRULED

780:10 Earplug? Pltf Obj MIL G5 - Speaking on

behalf of Govt

780:13 - 781:12 Fallon, Eric (2020-09-04) 1:01

780:13 THE WITNESS: I do, yes. Re: [780:13 to 781:12] Re: [780:13 to 781:12] Re: [780:13 to 781:12] OVERRULED

780:14 QUESTIONS BY MR. MORRISS: Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 403; 802

780:15 Q. Okay. And tell me what you behalf of Govt

780:16 remember learning about that. Re: [780:13 to 781:12] OVERRULED

780:17 A. I don't remember where I Pltf Obj MIL G5 - Speaking on

780:18 learned it, but what I learned was that if behalf of Govt

780:19 you could not achieve a proper fit of the

780:20 Combat Arms Earplug, that an additional

780:21 technique that was available to you would be

780:22 to roll the opposing third flange back and

780:23 then attempt to fit the hearing protector.

780:24 And if you could achieve a good

780:25 fit, then you had a good fit. You should

781:01 instruct the person to roll the third flange

781:02 back.

781:03 If you could not achieve a good

781:04 fit after attempting that, then you would

781:05 have to seek out another hearing protection

781:06 device.

781:07 Q. And did the materials that you

781:08 used, the PowerPoints or the wallet card or

781:09 any of the other materials that you had

781:10 available, did they include information about

781:11 rolling back the third flange and present

781:12 photographs?

781:15 - 781:23 Fallon, Eric (2020-09-04) 0:21

781:15 THE WITNESS: I do recall those Re: [781:15 to 781:23] Re: [781:15 to 781:23] Re: [781:15 to 781:23] OVERRULED

781:16 presentation materials showing photos Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

781:17 of the third flange being rolled back. behalf of Govt behalf of Govt

781:18 I remember them having a

781:19 statement about rolling the -- that

781:20 flange back under certain conditions.

781:21 And it's my recollection that I taught

781:22 them to try that if they could not

781:23 achieve a good fit.

782:02 - 782:04 Fallon, Eric (2020-09-04) 0:06

782:02 And I think a version of this

782:03 has been marked, but I want to go ahead and

Page 21 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 22 of 50
782:04 mark this as the next exhibit.

782:09 - 782:10 Fallon, Eric (2020-09-04) 0:22

782:09 (Fallon Exhibit 65 marked for

782:10 identification.)

782:14 - 782:19 Fallon, Eric (2020-09-04) 0:12

782:14 Q. And this was similar

782:15 presentation you were asked about earlier

782:16 today, correct?

782:17 A. That's correct, yes.

782:18 Q. And can you just tell the jury

782:19 what this is and what it was used for?

783:03 - 783:07 Fallon, Eric (2020-09-04) 0:09

783:03 Q. If you'll take a look,

783:04 Dr. Fallon, at Exhibit 65, is this a document

783:05 that you're familiar with?

783:06 A. This is a document that I am

783:07 familiar with, yes.

783:08 - 783:18 Fallon, Eric (2020-09-04) 1:30

783:08 Q. And in fact, it's a document Re: [783:14 to 784:17] OVERRULED

783:09 that you've produced or your lawyers have Pltf Obj MIL G5 - Speaking on

783:10 produced in this litigation, correct? behalf of Govt 403

783:11 A. That is correct, yes.

783:12 Q. Did you use this slide deck,

783:13 Exhibit 65, in making training presentations?

783:14 A. I used this document when I

783:15 would teach hearing conservation technician

783:16 courses, and my colleagues, to my -- best of

783:17 my recollection, would also use this file.

783:18 Q. All right.

783:19 - 784:12 Fallon, Eric (2020-09-04) 1:51

783:19 A. This document. Re: [783:19 to 784:12] Re: [783:19 to 784:12] Re: [783:14 to 784:17] OVERRULED

783:20 Q. And if you'll turn over to Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

783:21 slide number -- it has the number 40 at the behalf of Govt; 403 behalf of Govt 403

783:22 bottom of it. I think we looked at this

783:23 earlier today.

783:24 A. 40?

783:25 Q. It says "FALLON 40" at the

784:01 bottom.

784:02 A. Okay. I'm there.

784:03 Q. And what is being demonstrated

784:04 with this slide?

784:05 A. What's being demonstrated on

784:06 this slide, to my recollection, is that there

784:07 are a variety of hearing protection devices.

784:08 This is not all-inclusive, but it does show a

784:09 variety of hearing protection devices.

784:10 Q. And which of these are

Page 22 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 23 of 50
784:11 preformed plugs similar to what we've talked

784:12 about earlier today?

784:13 - 784:23 Fallon, Eric (2020-09-04) 0:29

784:13 A. The single-flange earplugs Re: [784:13 to 784:23] Re: [784:13 to 784:23] Re: [783:14 to 784:17] OVERRULED

784:14 would be considered preformed plugs. The Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

784:15 triple-flange, the Combat Arms, the musician behalf of Govt; 403 behalf of Govt 403

784:16 plugs, those are what I would consider

784:17 preformed plugs.

784:18 Q. And then if you turn over to

784:19 slide 43, would you have identified for your

784:20 student technicians in the audience that

784:21 would be going out into the field to fit

784:22 plugs, did you review advantages of preformed

784:23 plugs?

785:01 - 785:03 Fallon, Eric (2020-09-04) 0:03

785:01 THE WITNESS: Yes, this Re: [785:01 to 785:03] Re: [785:01 to 785:03] Re: [785:01 to 786:24] OVERRULED

785:02 title -- this slide is "advantages of Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

785:03 preformed plugs." behalf of Govt; 403 behalf of Govt 403

785:05 - 785:07 Fallon, Eric (2020-09-04) 0:04

785:05 Q. And would you have used this to Re: [785:05 to 785:07] Re: [785:05 to 785:07] Re: [785:01 to 786:24] OVERRULED

785:06 help you in making your presentation about Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

785:07 preformed plugs? behalf of Govt; 403 behalf of Govt 403

785:10 - 785:19 Fallon, Eric (2020-09-04) 0:21

785:10 THE WITNESS: As with all of my Re: [785:10 to 785:19] Re: [785:10 to 785:19] Re: [785:01 to 786:24] OVERRULED

785:11 slides, I would have used these bullet Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

785:12 points as a general guide. I would behalf of Govt; 403 behalf of Govt 403

785:13 have hit these points and maybe some

785:14 other points as well, so, yes.

785:15 QUESTIONS BY MR. MORRISS:

785:16 Q. And in addition to the

785:17 advantages, did you train the technician on

785:18 the -- the technicians in the audience on the

785:19 disadvantages of preformed plugs?

785:22 - 786:24 Fallon, Eric (2020-09-04) 1:07

785:22 THE WITNESS: I believe I did Re: [785:22 to 786:24] Re: [785:22 to 786:24] Re: [785:01 to 786:24] OVERRULED

785:23 on the next slide. And again, it Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

785:24 would have been a general guide that I behalf of Govt behalf of Govt 403

785:25 would have followed along with other

786:01 content.

786:02 QUESTIONS BY MR. MORRISS:

786:03 Q. What is the first bullet point

786:04 listed under the disadvantages of preformed

786:05 plugs slide?

786:06 A. The first bullet states,

786:07 "Initial fit must be made by a medically

786:08 trained person."

786:09 Q. And why did you view that as a

Page 23 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 24 of 50
786:10 potential disadvantage?

786:11 A. I view that as a potential

786:12 disadvantage because it's just more

786:13 resource-intensive. You have to have someone

786:14 who's medically trained in order to fit that

786:15 hearing protector.

786:16 Q. The third bullet point

786:17 indicates -- well, read for the jury what the

786:18 third bullet point indicates in terms of

786:19 disadvantages of the preformed plug.

786:20 A. The third bullet of

786:21 disadvantages is "will work lose with normal

786:22 jaw movements."

786:23 Q. Was that true with all

786:24 preformed plugs?

787:02 - 787:03 Fallon, Eric (2020-09-04) 0:03

787:02 THE WITNESS: I believe that to Re: [787:02 to 787:03] Re: [787:02 to 787:03] Re: [787:02 to 787:07] OVERRULED

787:03 be true of all preformed plugs, yes. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

behalf of Govt behalf of Govt 403

787:05 - 787:07 Fallon, Eric (2020-09-04) 0:07

787:05 Q. Single flange, the triple Re: [787:05 to 787:07] Re: [787:05 to 787:07] Re: [787:02 to 787:07] OVERRULED

787:06 flange, the Combat Arms dual-ended plug, all Pltf Obj Lay Scientific OVERRULED Pltf Obj MIL G5 - Speaking on

787:07 have that potential disadvantage? Opinion; MIL G5 - Speaking on behalf of Govt 403

behalf of Govt

787:10 - 787:11 Fallon, Eric (2020-09-04) 0:01

787:10 THE WITNESS: I would agree Re: [787:10 to 787:11] Re: [787:10 to 787:11] Re: [787:10 to 787:11] OVERRULED

787:11 with that statement, yes. Pltf Obj Lay Scientific OVERRULED Pltf Obj MIL G5 - Speaking on

Opinion; MIL G5 - Speaking on behalf of Govt 403

behalf of Govt

787:13 - 787:15 Fallon, Eric (2020-09-04) 0:09

787:13 Q. Did the DOD instructions

787:14 address this potential disadvantage of

787:15 preformed plugs that you remember?

787:18 - 787:21 Fallon, Eric (2020-09-04) 0:09

787:18 THE WITNESS: To my best of my Re: [787:18 to 787:21] OVERRULED

787:19 memory, there was a section of the Pltf Obj FRE 403, G5

787:20 DODI that addressed this disadvantage,

787:21 yes.

787:23 - 787:24 Fallon, Eric (2020-09-04) 0:19

787:23 Q. So let's turn back to

787:24 Exhibit 63.

788:02 - 788:02 Fallon, Eric (2020-09-04) 0:06

788:02 And if you'll turn to page 25.

788:05 - 788:09 Fallon, Eric (2020-09-04) 0:12

788:05 Q. Okay. So just to set the

788:06 stage, Exhibit 63 is the DOD instruction that

Page 24 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 25 of 50
788:07 we looked at earlier today, correct?

788:08 A. Yes, that's my recollection,

788:09 yes.

788:17 - 788:20 Fallon, Eric (2020-09-04) 0:07

788:17 Q. Your personal understanding was

788:18 that the DOD had instructions that guided

788:19 military branches on their hearing

788:20 conservation program; is that correct?

788:23 - 788:24 Fallon, Eric (2020-09-04) 0:00

788:23 THE WITNESS: That was my

788:24 understanding, yes.

789:02 - 789:18 Fallon, Eric (2020-09-04) 1:50

789:02 Q. And within the DOD Re: [789:02 to 789:18] Re: [789:02 to 789:18] Re: [789:02 to 789:18] OVERRULED

789:03 instructions, is there something styled E6, Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

789:04 enclosure 6? behalf of Govt behalf of Govt

789:05 A. I see that, yes, I do.

789:06 Q. Okay. And is it earplugs:

789:07 general information?

789:08 A. Yes.

789:09 Q. And if you would read for the

789:10 jury Item 3 out of this Department of Defense

789:11 instruction poster.

789:12 A. Item 3 states, "Plugs tend to

789:13 work loose as a result of talking and chewing

789:14 and must be reseated."

789:15 Q. Okay. And was that your

789:16 understanding about all preformed plugs, that

789:17 they could work loose from simply talking and

789:18 chewing?

789:21 - 789:23 Fallon, Eric (2020-09-04) 0:05

789:21 THE WITNESS: That was my Re: [789:21 to 789:23] Re: [789:21 to 789:23] Re: [789:21 to 789:23] OVERRULED

789:22 understanding of -- a disadvantage of Pltf Obj Lay Scientific OVERRULED Pltf Obj MIL G5 - Speaking on

789:23 preformed plugs, yes. Opinion; MIL G5 - Speaking on behalf of Govt, MIL G7 Lay

behalf of Govt scientific opinion on efficacy

of CAE2

789:25 - 790:01 Fallon, Eric (2020-09-04) 0:16

789:25 Q. And if you'll turn now back to Re: [790:01 to 790:13] Re: [790:01 to 790:13] Re: [790:01 to 790:13] OVERRULED

790:01 the teaching slide deck, which is Exhibit 65, Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

behalf of Govt behalf of Govt

790:01 - 790:13 Fallon, Eric (2020-09-04) 1:58

790:01 the teaching slide deck, which is Exhibit 65, Re: [790:01 to 790:13] Re: [790:01 to 790:13] Re: [790:01 to 790:13] OVERRULED

790:02 and just let me know when you get there. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

790:03 A. 65. Okay. I am back there. behalf of Govt behalf of Govt

790:04 Q. And if you'll turn to slide 53.

790:05 A. Slide 53.

790:06 Q. Says "FALLON 53" on the bottom.

Page 25 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 26 of 50
790:07 A. Okay. I'm on slide 53.

790:08 Q. When you were making

790:09 presentations to these technicians using this

790:10 particular deck, would this have been a slide

790:11 that you would have used in teaching the

790:12 technicians how to fit the Combat Arms

790:13 Earplug?

790:16 - 791:04 Fallon, Eric (2020-09-04) 1:37

790:16 THE WITNESS: I recall this Re: [790:16 to 791:04] Re: [790:16 to 791:04] Re: [790:16 to 791:04] OVERRULED

790:17 being a slide that I used to train Pltf Obj Lay Scientific OVERRULED Pltf Obj Lay Scientific

790:18 hearing technicians about the Combat Opinion; MIL G5 - Speaking on Opinion MIL G5 - Speaking on

790:19 Arms Earplug version 2, dual-ended, behalf of Govt behalf of Govt

790:20 version 2, and would have used it as

790:21 talking points about fitting, yes.

790:22 QUESTIONS BY MR. MORRISS:

790:23 Q. And does this slide include

790:24 instruction on which end of the plug to use?

790:25 A. It does. When to use the

791:01 yellow end and when to use the green end.

791:02 Q. Does it also provide specific

791:03 bullets about fit and determining whether you

791:04 have a good fit?

791:07 - 791:15 Fallon, Eric (2020-09-04) 0:19

791:07 THE WITNESS: It does provide Re: [791:07 to 791:15] Re: [791:07 to 791:15] Re: [791:07 to 791:15] OVERRULED

791:08 one bullet on how to check for proper Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

791:09 fit, and my recollection is that I behalf of Govt behalf of Govt

791:10 would have used other fit check

791:11 techniques as well, yes.

791:12 QUESTIONS BY MR. MORRISS:

791:13 Q. So tell the jury how you would

791:14 have described this to the technicians about

791:15 how to check for a proper fit.

791:18 - 792:22 Fallon, Eric (2020-09-04) 1:17

791:18 THE WITNESS: I would have Re: [791:18 to 792:22] Re: [791:18 to 792:22] Re: [791:18 to 792:22] OVERRULED

791:19 instructed technicians of how to, Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

791:20 first of all, as I said earlier, to behalf of Govt behalf of Govt

791:21 inspect the ear canal to make sure

791:22 there was no medical contraindications

791:23 for fitting.

791:24 My personal technique would be

791:25 to insert the green end in one ear.

792:01 If they could not achieve a good fit

792:02 by simply inserting it into the ear

792:03 with the pinna pulled back, as I

792:04 previously said, to roll back that

792:05 third opposing flange.

792:06 And they would have checked the

792:07 fit by the tug test, by a reduction of

792:08 environmental sounds in the classroom,

Page 26 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 27 of 50
792:09 and by talking and -- at least with

792:10 that one ear, did their voice sound a

792:11 lot louder to them and did it sound a

792:12 lot deeper to them.

792:13 My personal technique would

792:14 have been to take the yellow end and

792:15 put it into the other ear canal so

792:16 that they would have a -- kind of a

792:17 mismatched balance.

792:18 QUESTIONS BY MR. MORRISS:

792:19 Q. Did the slide that we're

792:20 looking at now have a specific bullet

792:21 concerning the potential need to roll back

792:22 the third flange?

792:25 - 793:16 Fallon, Eric (2020-09-04) 1:41

792:25 THE WITNESS: This slide has a Re: [792:25 to 793:16] Re: [792:25 to 793:16] Re: [792:25 to 793:16] OVERRULED

793:01 bullet -- this slide has a bullet that Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

793:02 says, "for very large ear canals, pull behalf of Govt behalf of Govt

793:03 opposing plug back."

793:04 QUESTIONS BY MR. MORRISS:

793:05 Q. And is there a photograph of

793:06 the Combat Arms dual-ended plug with the

793:07 third flange rolled back?

793:08 A. There is a photograph of that,

793:09 yes.

793:10 Q. And then if you'll turn over to

793:11 the last slide in the deck, which is

793:12 number 64.

793:13 A. Okay. I'm there.

793:14 Q. And tell the jury what this is

793:15 and how you used this slide as part of your

793:16 training.

793:19 - 794:02 Fallon, Eric (2020-09-04) 0:26

793:19 THE WITNESS: This would have Re: [793:19 to 794:02] Re: [793:19 to 794:02] Re: [793:19 to 794:02] OVERRULED

793:20 been the last slide in that training Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

793:21 deck, and it would have led us into behalf of Govt behalf of Govt

793:22 and begun a fitting exercise. And all

793:23 of the students would have gone

793:24 through a hands-on fitting exercise

793:25 with a partner, utilizing a variety of

794:01 hearing protectors to include the

794:02 dual-ended Combat Arms Earplug.

794:06 - 794:07 Fallon, Eric (2020-09-04) 0:04

794:06 Q. You mentioned earlier a wallet

794:07 card.

794:11 - 794:12 Fallon, Eric (2020-09-04) 0:04

794:11 Q. And is this a two-page or a

794:12 front-and-back document?

Page 27 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 28 of 50
794:13 - 794:15 Fallon, Eric (2020-09-04) 0:08

794:13 A. It is a two-page document, and

794:14 I remember it as being a front and back of

794:15 the wallet card, yes.

794:16 - 794:24 Fallon, Eric (2020-09-04) 1:31

794:16 Q. And if we go to the second --

794:17 or bottom slide of this particular

794:18 Exhibit 66, is this similar to the slide that

794:19 you used as part of your presentation to

794:20 technicians?

794:21 A. Yes. It looks to me almost

794:22 like the exact slide.

794:23 Q. So how was the wallet card used

794:24 differently than the slide presentation?

795:03 - 795:23 Fallon, Eric (2020-09-04) 1:54

795:03 THE WITNESS: So wallet card, Re: [795:03 to 795:23] Re: [795:03 to 795:23] Re: [795:03 to 795:23] OVERRULED as to

795:04 to me, was meant to be a training aid Pltf Obj MIL G5 - Speaking on OVERRULED as to Pltf Obj MIL G5 - Speaking on [795:03-795:07], 

795:05 that a soldier who had been issued the behalf of Govt [795:03-795:07], SUSTAINED as behalf of Govt SUSTAINED

795:06 Combat Arms Earplug could keep with to [795:08-795:23] as to [795:08-795:23]

795:07 them.

795:08 And my understanding of the

795:09 reason the wallet card came about was

795:10 because soldiers could forget from

795:11 their fitting what the yellow end was

795:12 for and what the green end was for.

795:13 The reason -- I think this is

795:14 part of your question -- that I may

795:15 have used this in my training

795:16 presentation because it had, you know,

795:17 diagrams and pictures of the flange

795:18 rolled back. But as a wallet card it

795:19 would have been a training aid,

795:20 whereas my presentation would have

795:21 been used to instruct and train

795:22 personnel of how to fit the hearing

795:23 protector.

796:06 - 796:07 Fallon, Eric (2020-09-04) 0:03

796:06 QUESTIONS BY MR. MORRISS: Re: [796:07 to 797:08] OVERRULED

796:07 Q. Well, let me ask a question. Pltf Obj MIL G5 - Speaking on

behalf of Govt

796:08 - 797:08 Fallon, Eric (2020-09-04) 1:25

796:08 During your time at the Army Re: [796:08 to 797:08] Re: [796:08 to 797:08] Re: [796:07 to 797:08] OVERRULED

796:09 hearing conservation program office, did the Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

796:10 office maintain wallet cards and make them behalf of Govt behalf of Govt

796:11 available to military personnel?

796:12 A. I don't recall if it was the

796:13 Army hearing conservation program office, but

Page 28 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 29 of 50
796:14 I recall that USACHPPM, some form of

796:15 USACHPPM, made training materials available

796:16 to the rest of the Army, and one of those

796:17 training materials would have been the wallet

796:18 card.

796:19 Q. And how was the wallet card

796:20 made available through USACHPPM to military

796:21 personnel? How was it distributed?

796:22 A. My recollection is that

796:23 personnel from across the Army could come to

796:24 USACHPPM web page. They could order training

796:25 documents and guides or support material.

797:01 One of those would have been the Combat Arms

797:02 Earplug. And USACHPPM, some form of

797:03 USACHPPM, would have shipped those in

797:04 whatever quantity was ordered to whoever

797:05 ordered it.

797:06 Q. Okay. And did the wallet card

797:07 contain information about which end of the

797:08 plug to use under what circumstances?

797:11 - 797:19 Fallon, Eric (2020-09-04) 0:21

797:11 THE WITNESS: It -- the wallet Re: [797:11 to 797:13] OVERRULED

797:12 card did, to my understanding, contain Pltf Obj MIL G5 - Speaking on

797:13 that information, yes. behalf of Govt

797:14 QUESTIONS BY MR. MORRISS:

797:15 Q. And we can see here on

797:16 Exhibit 66 that there is an actual

797:17 illustration of the yellow and green end, and

797:18 a brief bullet point on when to use it,

797:19 correct?

797:22 - 798:06 Fallon, Eric (2020-09-04) 0:24

797:22 THE WITNESS: That is correct. Re: [797:22 to 798:06] Re: [797:22 to 798:06] Re: [797:22 to 798:06] OVERRULED

797:23 QUESTIONS BY MR. MORRISS: Pltf Obj Lay Scientific OVERRULED Pltf Obj MIL G5 - Speaking on

797:24 Q. And then does the wallet card Opinion; MIL G5 - Speaking on behalf of Govt

797:25 also give at least reminders about some of behalf of Govt

798:01 the ways to check for a proper fit?

798:02 A. It does. There is a bullet

798:03 point on "check proper fit by gently tugging

798:04 on plugs for tension."

798:05 Q. And does it also reference the

798:06 potential need to roll back the third flange?

798:09 - 798:17 Fallon, Eric (2020-09-04) 0:20

798:09 THE WITNESS: It does. The Re: [798:09 to 798:17] Re: [798:09 to 798:17] Re: [798:09 to 798:17] OVERRULED

798:10 bullet point says, "for very large ear Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

798:11 canals, fold opposing plug back." behalf of Govt; 602 behalf of Govt 602

798:12 QUESTIONS BY MR. MORRISS:

798:13 Q. Did it include a photograph?

798:14 A. There is a photograph of the

798:15 opposing third flange rolled back, yes.

Page 29 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 30 of 50
798:16 Q. And would this have been

798:17 information within the USACHPPM system?

798:23 - 800:05 Fallon, Eric (2020-09-04) 1:24

798:23 THE WITNESS: If I understand Re: [798:23 to 800:05] Re: [798:23 to 800:05] Re: [798:23 to 800:05] SUSTAINED

798:24 you correctly, yes, this wallet card Pltf Obj MIL G5 - Speaking on SUSTAINED Pltf Obj MIL G5 - Speaking on

798:25 would have been produced by USACHPPM, behalf of Govt; 602; Hearsay behalf of Govt 602 Hearsay

799:01 and I believe on one side is the

799:02 USACHPPM logo. That's where I thought

799:03 that it came from.

799:04 QUESTIONS BY MR. MORRISS:

799:05 Q. So let's go to the first page

799:06 of Exhibit 66.

799:07 Is there an emblem on the

799:08 bottom right of this wallet card?

799:09 A. There is an emblem on the

799:10 bottom right of this wallet card, and that is

799:11 what I remember to be the USACHPPM emblem.

799:12 Q. Okay. At the very top is there

799:13 a section that says "From a Soldier in Iraq"?

799:14 A. There is a section titled "From

799:15 a Soldier in Iraq."

799:16 Q. And can you read the quote?

799:17 A. The quote says, "Combat Arms

799:18 Earplug...work great in this environment...

799:19 they probably made the difference between

799:20 eardrum/hearing damage and not. They

799:21 definitely allow you to mentally recover very

799:22 quickly so you are able to deal with your

799:23 situation versus standing around like a

799:24 stunned mullet for a while."

799:25 Q. And then is there a direction

800:01 on how to order the wallet card -- or to

800:02 order the earplug?

800:03 A. I do see an ordering section

800:04 for both the double-ended earplugs and then

800:05 the single-ended plugs.

800:06 - 801:01 Fallon, Eric (2020-09-04) 1:10

800:06 Q. And then it says, "For more

800:07 information," and can you read what USACHPPM

800:08 was distributing about what to do if you

800:09 needed more information?

800:10 A. Under "for more information" it

800:11 says, "See fact sheet 51-004-0204," and then

800:12 it's got a hyperlink for CHPPM. It's got two

800:13 hyperlinks there. Both of them seem to point

800:14 toward a CHPPM web page.

800:15 Q. And a USACHPPM web page would

800:16 be a military web page, correct?

800:17 A. That is my understanding, yes.

800:18 They end in .mil.

Page 30 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 31 of 50
800:19 Q. Now, remember that number,

800:20 51-004-0204. Okay?

800:21 The wallet card says, "For more

800:22 information, see fact sheet 51-004-0204."

800:23 Did I read that correctly?

800:24 A. It does say that, yes.

800:25 Q. Now, I want you to go to what

801:01 we'll mark as Exhibit 67.

801:10 - 801:20 Fallon, Eric (2020-09-04) 1:38

801:10 Q. Okay. So can you tell the

801:11 jury, what is Exhibit 67?

801:12 A. Exhibit 67 is a Just the Facts,

801:13 and next to the USACHPPM logo, I see the same

801:14 number that you just referenced on that

801:15 wallet card.

801:16 Q. So if you look at your computer

801:17 screen, this is what the jury will see. It

801:18 has, "For more information, see fact sheet

801:19 51-004-0204," and that is the same number on

801:20 Exhibit 67, correct?

801:21 - 801:21 Fallon, Eric (2020-09-04) 0:02

801:21 A. That is the same number, yes.

802:10 - 804:07 Fallon, Eric (2020-09-04) 2:20

802:10 Q. So let me ask it again, Re: [802:10 to 804:07] Re: [802:10 to 804:07] Re: [802:10 to 804:07] OVERRULED

802:11 Dr. Fallon. Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

802:12 During your time when you were behalf of Govt behalf of Govt

802:13 at the Army hearing conservation program

802:14 office, did you become familiar with a

802:15 publication put out by USACHPPM called Just

802:16 the Facts?

802:17 A. I have seen this document

802:18 before called Just the Facts, yes.

802:19 Q. And in general, what did you

802:20 understand the Just the Facts publication --

802:21 what did you understand its purpose to be?

802:22 A. My understanding was that Just

802:23 the Facts was a mechanism, if you will, a

802:24 vehicle, that USACHPPM could take a

802:25 particular product that was relevant to

803:01 either preventive medicine or readiness and

803:02 highlight that by sending it out to at least

803:03 the military medical assets. I don't know

803:04 how widely it was distributed, but at least

803:05 to those, on some topics.

803:06 This one, as you see, is titled

803:07 the "Combat Arms Earplug," but it could be

803:08 smoking cessation. It could be just about

803:09 anything that affected the readiness of the

803:10 force.

Page 31 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 32 of 50
803:11 Q. So Exhibit 67 is titled what?

803:12 A. It is titled "The Combat Arms

803:13 Earplug." "Just the Facts, The Combat Arms

803:14 Earplug. "

803:15 Q. And if we flip over to the

803:16 second page of this Exhibit 67, is there an

803:17 identification of user tips?

803:18 A. There is a section titled "User

803:19 Tips," yes.

803:20 Q. And does it provide information

803:21 specifically about the need to have the

803:22 earplug properly inserted?

803:23 A. Yes, it does.

803:24 Q. And can you read that for the

803:25 jury, that first sentence?

804:01 A. That's that bullet that says,

804:02 "Like any earplug, it is essential that the

804:03 Combat Arms Earplug be properly inserted."

804:04 Q. Okay. And is there also a

804:05 listing of how to determine whether the plug

804:06 is properly inserted, similar to what you've

804:07 described earlier today?

804:10 - 804:20 Fallon, Eric (2020-09-04) 0:23

804:10 THE WITNESS: Yes. It goes on

804:11 later to say, "Gently tug on the plug.

804:12 If there is tension, that's a good

804:13 indication of proper insertion. Also,

804:14 the voice of the individual wearing

804:15 the plug will sound more low-toned and

804:16 slightly muffled to the wearer."

804:17 QUESTIONS BY MR. MORRISS:

804:18 Q. And does it also have a user

804:19 tip concerning folding back the opposing plug

804:20 or flange?

804:23 - 805:01 Fallon, Eric (2020-09-04) 0:16

804:23 THE WITNESS: It does. It

804:24 says, "For exceptionally large ear

804:25 canals, fold the opposing plug back to

805:01 enhance proper insertion."

806:12 - 807:23 Fallon, Eric (2020-09-04) 2:53

806:12 Q. Okay. Did you have personal Re: [806:12 to 807:23] Re: [806:12 to 807:23] Re: [806:12 to 807:23] OVERRULED

806:13 experience with audiologists from Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

806:14 installations throughout the United States? behalf of Govt behalf of Govt

806:15 A. I did, yes.

806:16 Q. Okay. And can you describe for

806:17 the jury the interaction that you and the

806:18 folks there at the Army hearing conservation

806:19 program office, what kind of interaction you

806:20 would have with an audiologist that may be

Page 32 of 49

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806:21 working at a particular installation?

806:22 A. We would have e-mail exchanges,

806:23 phone conversations. We would have been

806:24 together generally at what was called

806:25 military audiology short courses. I -- we

807:01 may have seen them at conferences, and at

807:02 times we would host training events at the

807:03 Army hearing program office. And then I

807:04 guess final thing I would say is that we

807:05 would perform site visits to those

807:06 installations to look at their hearing

807:07 conservation program.

807:08 Q. So you talked about a short

807:09 course.

807:10 What is a short course?

807:11 A. What was called a short course,

807:12 the full title would have been a military

807:13 audiology short course. And it was a

807:14 once-a-year meeting where all of the Army

807:15 audiologists would get together at a

807:16 location, and you would have a series of

807:17 meetings over, my recollection was, three to

807:18 four days.

807:19 Q. And was Doug Ohlin, during your

807:20 time at the program office, be someone who

807:21 might present or teach at a short course or a

807:22 training session where other audiologists

807:23 were in attendance?

808:01 - 808:07 Fallon, Eric (2020-09-04) 0:16

808:01 THE WITNESS: It's my Re: [808:01 to 808:07] Re: [808:01 to 808:07] Re: [808:01 to 808:07] OVERRULED

808:02 recollection that Dr. Ohlin would have Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj MIL G5 - Speaking on

808:03 talked at all of those short courses. behalf of Govt; 602 behalf of Govt

808:04 QUESTIONS BY MR. MORRISS:

808:05 Q. Let me let you take a look at a

808:06 clip from a deposition that's been taken in

808:07 this case.

808:10 - 808:14 Fallon, Eric (2020-09-04) 2:41

808:10 (Video played.)

808:11 Q. All right. Do you know

808:12 Lieutenant Merkley?

808:13 A. I do know Lieutenant Merkley,

808:14 yes.

808:16 - 808:23 Fallon, Eric (2020-09-04) 0:17

808:16 A. I'm sorry, Lieutenant Colonel Re: [808:16 to 808:23] Re: [808:16 to 808:23] Re: [808:16 to 808:23] OVERRULED

808:17 Merkley in that photograph -- in that video. Pltf Obj 602; MIL G5 - OVERRULED Pltf Obj 602 MIL G5 - Speaking

808:18 Q. And is his description about Speaking on behalf of Govt on behalf of Govt

808:19 the training provided by Doug Ohlin

808:20 consistent with your recollection of how

808:21 audiologists from different installations

Page 33 of 49

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808:22 were trained at the Army hearing conservation

808:23 program office?

809:01 - 809:15 Fallon, Eric (2020-09-04) 1:39

809:01 THE WITNESS: My recollection Re: [809:01 to 809:15] Re: [809:01 to 809:15] Re: [809:01 to 809:15] OVERRULED

809:02 certainly coincides with Lieutenant Pltf Obj MIL G5 - Speaking on OVERRULED Pltf Obj 602 MIL G5 - Speaking

809:03 Colonel Merkley's, yes. behalf of Govt on behalf of Gov

809:04 QUESTIONS BY MR. MORRISS:

809:05 Q. You were at the USACHPPM

809:06 hearing conservation program office roughly

809:07 from 2003 through 2010 or thereabouts?

809:08 A. That is my recollection, yes,

809:09 except for the deployments I mentioned

809:10 earlier.

809:11 Q. And during that time, is it

809:12 fair to say that you interacted with not only

809:13 technicians but other audiologists from

809:14 various installations, military

809:15 installations?

809:18 - 810:01 Fallon, Eric (2020-09-04) 0:20

809:18 THE WITNESS: I would have Re: [809:18 to 810:01] Re: [809:18 to 810:01] Re: [809:18 to 810:01] SUSTAINED

809:19 interacted with all of those, yes. Pltf Obj MIL G5 - Speaking on SUSTAINED Pltf Obj 602 MIL G5 - Speaking

809:20 QUESTIONS BY MR. MORRISS: behalf of Govt on behalf of Gov

809:21 Q. Based on your personal

809:22 interaction, did the military audiology

809:23 community that you dealt with understand that

809:24 folding back the third flange was one way to

809:25 improve the fit of the dual-ended plug in

810:01 some people?

810:04 - 810:11 Fallon, Eric (2020-09-04) 0:22

810:04 THE WITNESS: I have had no Re: [810:04 to 810:11] Re: [810:04 to 810:11] Re: [810:04 to 810:11] SUSTAINED

810:05 reason to suspect that there were any Pltf Obj MIL G5 - Speaking on SUSTAINED Pltf Obj 602 MIL G5 - Speaking

810:06 military audiologists who did not have behalf of Govt; 602 on behalf of Govt, 602

810:07 that information.

810:08 QUESTIONS BY MR. MORRISS:

810:09 Q. Is it fair to say, though -- is

810:10 the dual-ended plug, in your view, a

810:11 one-size-fits-all plug?

810:14 - 810:24 Fallon, Eric (2020-09-04) 0:24

810:14 THE WITNESS: I did not view Re: [810:14 to 810:24] Re: [810:14 to 810:24] Re: [810:14 to 810:24] OVERRULED as to

810:15 the dual-ended Combat Arms Earplug as Pltf Obj MIL G5 - Speaking on OVERRULED as to Pltf Obj 602 MIL G5 - Speaking [810:14-810:17], SUSTAINED as

810:16 a once-size-fits-all hearing behalf of Govt; 602 [810:14-810:17], SUSTAINED as on behalf of Govt to [810:18-810:24]

810:17 protector, no. to [810:18-810:24]

810:18 QUESTIONS BY MR. MORRISS:

810:19 Q. And based on your personal

810:20 interaction with the audiology community, at

810:21 least the people you interacted with, did

810:22 they understand that the dual-ended Combat

810:23 Arms Earplug was not a one-size-fits-all

Page 34 of 49

Case 7:20-cv-00039-MCR-GRJ Document 176-1 Filed 06/17/21 Page 35 of 50
810:24 plug?

811:03 - 811:14 Fallon, Eric (2020-09-04) 0:20

811:03 THE WITNESS: I had no doubt -- Re: [811:03 to 811:14] Re: [811:03 to 811:14] Re: [811:03 to 811:12] SUSTAINED

811:04 I had no reason to believe that Pltf Obj MIL G5 - Speaking on SUSTAINED Pltf Obj 602 MIL G5 - Speaking

811:05 anybody would see it as anything other behalf of Govt; 602 on behalf of Govt

811:06 than, you know, an earplug that will

811:07 fit a certain segment of the

811:08 population but not the entire

811:09 population.

811:10 And I do remember seeing some

811:11 documentation at times that it was not

811:12 a one size fits all.

811:13 (Fallon Exhibit 68 marked for

811:14 identification.)

811:22 - 812:12 Fallon, Eric (2020-09-04) 1:52

811:22 Q. And what is Exhibit 68?

811:23 A. It is an information paper

811:24 titled -- with a subject "Hearing Becomes a

811:25 Causality of War" media article, and it's

812:01 dated February 24, 2006.

812:02 Q. And if you turn over to page 2

812:03 of this document, does it indicate who the

812:04 author is?

812:05 A. It appears to me the author is

812:06 Lieutenant Colonel Gates, with her phone

812:07 number. And then it says "approved by" who I

812:08 remember to be Colonel Gates' boss, Colonel

812:09 Underwood.

812:10 Q. And did you play a role in

812:11 either preparing or reviewing at some point

812:12 this information paper?

812:13 - 812:18 Fallon, Eric (2020-09-04) 0:15

812:13 A. It's my recollection that I was

812:14 asked to edit or to comment on this paper

812:15 before it was produced, but I didn't author

812:16 it.

812:17 Q. And what did you understand the

812:18 purpose of this paper to be?

812:21 - 813:17 Fallon, Eric (2020-09-04) 1:16

812:21 THE WITNESS: There was a news Re: [812:21 to 813:17] Re: [812:21 to 813:17] Re: [812:21 to 813:17] SUSTAINED

812:22 article in a Dallas newspaper, if I Pltf Obj MIL G5 - Speaking on SUSTAINED Pltf Obj MIL G3, MIL G5 -

812:23 remember right, that was very critical behalf of Govt Speaking on behalf of Govt

812:24 of the -- either the Army or the

812:25 military's -- and that this was

813:01 written as some facts or some talking

813:02 points available to senior military in

813:03 case they were asked about this or if

813:04 they wanted to know what the Army had

Page 35 of 49

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813:05 done with regards to -- to protecting

813:06 hearing. That's my memory.

813:07 QUESTIONS BY MR. MORRISS:

813:08 Q. And is there a listing of facts

813:09 on page -- beginning on page 1 of Exhibit 68?

813:10 A. There is -- Section 2 is titled

813:11 "Facts."

813:12 Q. And if you look at B1, if you

813:13 could read the last sentence of that to the

813:14 jury, please.

813:15 A. B1 states: "The CAE is not a,

813:16 quote, one size fits all -- due to

813:17 exceptionally small or large ear canal size."

814:14 - 814:19 Fallon, Eric (2020-09-04) 0:20

814:14 Dr. Fallon, if you would read

814:15 the last sentence of B1.

814:16 A. B1 states: "The CAE is not a,

814:17 quote, one size fits all, end quote, and

814:18 there are soldiers who cannot use it due to

814:19 exceptionally small or large ear canal size."

814:24 - 815:05 Fallon, Eric (2020-09-04) 0:14

814:24 If you look at section E under

814:25 the Facts section, do you see that section,

815:01 Dr. Fallon?

815:02 A. I do see section E, yes.

815:03 Q. And does it address the

815:04 importance of training as it relates to

815:05 earplugs?

815:08 - 815:18 Fallon, Eric (2020-09-04) 0:26

815:08 THE WITNESS: It does, yes. Re: [815:08 to 815:18] Re: [815:08 to 815:18] Re: [815:08 to 815:18] SUSTAINED

815:09 QUESTIONS BY MR. MORRISS: Pltf Obj MIL G5 - Speaking on SUSTAINED Pltf Obj G5 - Speaking on

815:10 Q. And if you could read to the behalf of Govt behalf of Govt

815:11 jury the first two sentences of section E.

815:12 A. The first two sentences say,

815:13 "It is critical to understand that hearing

815:14 conservation and hearing injury prevention is

815:15 not simply a matter of providing earplugs to

815:16 soldiers. Soldiers have to be trained and

815:17 fitted on the appropriate use and insertion

815:18 of earplugs."

816:24 - 818:10 Fallon, Eric (2020-09-04) 2:43

816:24 Q. Dr. Fallon, I've got a few

816:25 questions for you.

817:01 Yesterday, you and I talked

817:02 about the fact that you had spent about

817:03 50 hours with lawyers getting ready to

817:04 testify.

817:05 Do you remember that?

Page 36 of 49

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817:06 A. I do remember that was about my

817:07 recollection, yes, about that much time, yes.

817:08 Q. And are you keeping track of

817:09 your time that you spend? Are you writing it

817:10 down or anything like that?

817:11 A. I do not, no.

817:12 Q. So this 50 hours is just an

817:13 estimate on your part?

817:14 A. I believe that's what I

817:15 represented it as yesterday. It was an

817:16 estimate, yes.

817:17 Q. Okay. And you had two lawyers

817:18 at this deposition for the past two days,

817:19 right? You had Mr. Morriss and is it

817:20 Mr. Blaiklock?

817:21 A. I had Chad Morriss here in the

817:22 room, and then for some period of time Rich

817:23 Blaiklock was on, yes. That's my

817:24 understanding.

817:25 Q. Okay. And have you ever met

818:01 with Rich Blaiklock?

818:02 A. I have -- I've had phone

818:03 conversations with Mr. Blaiklock, yes.

818:04 Q. Yeah. Well, but have you

818:05 ever -- have you ever sit -- sat in a room

818:06 with him and looked at him in the eyes,

818:07 eyeball to eyeball?

818:08 A. I have never sat in a room with

818:09 Mr. Blaiklock, looking at him eyeball to

818:10 eyeball, no.

823:02 - 823:10 Fallon, Eric (2020-09-04) 1:33

823:02 How many meetings did you have

823:03 with Mr. Morriss and his team?

823:04 A. I believe I met with Chad

823:05 Morriss, to the best of my recollection,

823:06 maybe six days in person, to include building

823:07 up to this over a period of time, and also

823:08 a -- maybe two or three phone or video

823:09 meetings that may have gone a couple of

823:10 hours. That's my recollection.

825:05 - 825:16 Fallon, Eric (2020-09-04) 1:30

825:05 Q. Okay. You have an incentive

825:06 program where the company gives you stock

825:07 options, as we talked about yesterday,

825:08 correct?

825:09 A. I am a participant in the

825:10 variable incentive program, yes.

825:11 Q. And you told me yesterday that

825:12 included stock options?

825:13 A. There is a stock component to

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825:14 either a short-term incentive plan or a

825:15 long-term incentive plan. I don't recall

825:16 which one, but, yes.

826:11 - 828:10 Fallon, Eric (2020-09-04) 2:12

826:11 Q. Okay. Is there any other

826:12 financial incentives that you have with 3M

826:13 that you haven't told us about?

826:14 You have your salary, you have

826:15 the incentive plan, which I understand to

826:16 include stock options.

826:17 Is there anything else we've

826:18 left out?

826:19 A. Well, the incentive plan, to

826:20 clear this up, there -- my understanding is

826:21 it's for every 3M employee. But I know for

826:22 myself, my compensation package involves a

826:23 base salary and then a variable incentive

826:24 pay. And that variable incentive pay is

826:25 based on, again, my understanding, the

827:01 personal safety division's business as a

827:02 whole. So for me, that would include all of

827:03 the safety products - respiratory, vision,

827:04 fall protection.

827:05 And then there's a method of

827:06 whether the business -- all of those

827:07 businesses meet their goal or not. And then

827:08 you get a percentage of your variable

827:09 incentive pay.

827:10 And then in addition to that, I

827:11 believe it was about four years ago, as I

827:12 mentioned, I started receiving either

827:13 short-term incentive pay or long-term

827:14 incentive pay, and that is where the stocks

827:15 came into play.

827:16 Q. So it sounds like there's three

827:17 different buckets here. There's your salary

827:18 you get for working every day, right?

827:19 A. That's correct. It's called

827:20 base pay, yes.

827:21 Q. You get your base pay.

827:22 And then you get some incentive

827:23 pay, depending on how the personal safety

827:24 division does, right?

827:25 A. That's -- that is correct.

828:01 Q. Okay. And you get that money

828:02 now. But in addition to that money you get

828:03 now, based on how the division does, you also

828:04 get these stock options that started three or

828:05 four years ago?

828:06 A. Yes. And the variable

828:07 incentive pay can be less money than what my

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828:08 compensation package is if business is not

828:09 performing well. And the stock options, I

828:10 honestly don't know how those are calculated.

830:14 - 830:18 Fallon, Eric (2020-09-04) 0:14

830:14 Q. You didn't have the flange

830:15 report with you when you were giving these

830:16 training seminars, did you?

830:17 A. The flange report? I'm not

830:18 sure what the flange report is.

831:12 - 831:17 Fallon, Eric (2020-09-04) 0:10

831:12 Q. My question to you is, you did

831:13 not have the information in the flange

831:14 report, sir, did you?

831:15 MR. MORRISS: Object to form.

831:16 THE WITNESS: I had not seen

831:17 the flange report, as you refer to it.

831:21 - 832:04 Fallon, Eric (2020-09-04) 1:39

831:21 Q. Okay. And, Corey, can you pull

831:22 up -- what is it? Corey, it's the last one

831:23 that Lawrence sent you. It's the Army

831:24 earplug reference. There we go.

831:25

832:01 MR. TRACEY: This is Exhibit

832:02 Number 60 something. What is it?

832:03 COREY SMITH: I believe it's

832:04 69.

832:14 - 832:14 Fallon, Eric (2020-09-04) 0:04

832:14 Q. All right. You see up in the

832:14 - 833:04 Fallon, Eric (2020-09-04) 1:37

832:14 Q. All right. You see up in the

832:15 right-hand corner it says "Army earplug

832:16 reference"?

832:17 A. I do see that on this document,

832:18 yes.

832:19 Q. It says, "For more information,

832:20 contact the clinical audiology department or

832:21 the hearing conservation clinic."

832:22 Right?

832:23 A. I do see that listed up there,

832:24 yes.

832:25 Q. And down at the bottom it says,

833:01 "Darnall Army Community Hospital, Fort Hood,

833:02 Texas"?

833:03 A. I do see Darnall Army Community

833:04 Hospital, Fort Hood, Texas, yes.

833:10 - 835:08 Fallon, Eric (2020-09-04) 2:58

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833:10 Q. Okay. On the left-hand side in

833:11 the left-hand column, you'll see the Combat

833:12 Arms Earplugs, double-sided, and then we see

833:13 not one, not two, but three pictures there in

833:14 that column, don't we?

833:15 A. Of the Combat Arms Earplug? I

833:16 do see three photos of the dual-ended Combat

833:17 Arms Earplug, yes.

833:18 Q. And we see in none of those

833:19 pictures are the flanges folded back, right?

833:20 A. In this earplug reference, I do

833:21 not see any photos of the flange rolled back,

833:22 you're correct.

833:23 Q. All right.

833:24 Hey, Corey, that first one of

833:25 the green end sticking out of this guy, can

834:01 you make that big? Big as you can make it so

834:02 we can let the jury see it, and I'm going to

834:03 ask Dr. Fallon some questions.

834:04 Now, Dr. Fallon, you see the

834:05 way that's fitted in this earplug guide?

834:06 A. I do see that photo, yes.

834:07 Q. Is that the right way to fit a

834:08 plug, according to you?

834:09 A. I don't know if that individual

834:10 has achieved a proper fit or not. If they

834:11 did, then I would say yes. If they -- if

834:12 that -- if that is for demonstration or photo

834:13 purposes only, then you could potentially

834:14 roll that flange back.

834:15 I have no way of knowing from

834:16 that photograph whether that individual is

834:17 trying to achieve a proper fit or not. I

834:18 just don't know.

834:19 Q. Well, I have no idea what that

834:20 means.

834:21 What is he trying to do, if

834:22 he's not trying to achieve a proper fit?

834:23 A. It could be -- if you're asking

834:24 my -- it might be a photograph of someone

834:25 with the yellow end inserted into their ear

835:01 canal. I don't know the purpose of it.

835:02 If the photo is just to serve

835:03 as a model of what it looks like in the ear,

835:04 then that may have been what they

835:05 accomplished.

835:06 I don't have any familiarity

835:07 with this product -- or this document, as I

835:08 said.

836:16 - 837:09 Fallon, Eric (2020-09-04) 1:47

836:16 Q. All right. Well, let's see

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836:17 what the guide says so we don't have to guess

836:18 about what they're trying to accomplish with

836:19 this picture.

836:20 It says, "When the yellow tip

836:21 of the earplug is properly inserted in the

836:22 ear canal, it allows sound below 110 dB to

836:23 pass through unimpeded, thus allowing for

836:24 speech communication, detection and

836:25 localization while protecting against impulse

837:01 noise, e.g., weapons fire."

837:02 Did I read that correctly?

837:03 A. I believe you did. The only

837:04 thing I would correct is that you called it a

837:05 guide, and I don't know the difference,

837:06 honestly, between a guide and a reference.

837:07 But it says that it is an earplug reference.

837:08 But you did read that section

837:09 correctly, yes.

837:22 - 839:11 Fallon, Eric (2020-09-04) 2:34

837:22 Dr. Fallon, I'd like you to

837:23 look the jury in the eye, look at the blowup

837:24 of this picture, and I want you to tell us

837:25 whether or not that earplug is properly

838:01 inserted according to you.

838:02 A. What I would say to the jury is

838:03 that I cannot look at that photograph and

838:04 tell whether that earplug is properly

838:05 inserted.

838:06 If I was fitting that

838:07 individual, I would perform things such as

838:08 the tug test, ask them if their voice sounds

838:09 deeper to them. I would have them cup their

838:10 hands over their ears to see if it gets

838:11 softer. Those are the techniques that I

838:12 would use to determine whether there's a good

838:13 fit.

838:14 Q. So that third flange, that

838:15 green flange that's crumpled up against that

838:16 guy's ear, that's okay with you if everything

838:17 else is equal?

838:18 MR. MORRISS: Object to form.

838:19 THE WITNESS: To me it's not a

838:20 question of being okay. It's a

838:21 question of did this person achieve a

838:22 good fit. And if they did, they did.

838:23 If they didn't, then there would be a

838:24 technique of rolling that third flange

838:25 back.

839:01 This is a photograph. From

839:02 that reference, I don't know if they

839:03 achieved a good fit or not. How would

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839:04 I know that.

839:05 QUESTIONS BY MR. TRACEY:

839:06 Q. Well, why have pictures at all?

839:07 A. I guess you'd have to ask

839:08 whoever put this reference guide together. I

839:09 did not put it together. I don't know

839:10 exactly what their reasoning for it was. I

839:11 don't know.

840:04 - 841:02 Fallon, Eric (2020-09-04) 1:06

840:04 Q. Do you know what 3M believed

840:05 about whether or not -- internally what they

840:06 believed about whether or not what we see in

840:07 this picture was a proper or improper way to

840:08 fit the Combat Arms Earplug if you wanted to

840:09 get the protection that they claimed?

840:10 A. I -- all I know is some

840:11 information you showed me yesterday. The

840:12 information I replied -- I relied on, I

840:13 believe, came from the Army Research Lab or

840:14 the Army. So the only thing that I know of

840:15 what 3M knows is what you showed me

840:16 yesterday.

840:17 Q. Okay. And so if you saw a

840:18 soldier fitted exactly like we see on the

840:19 screen, you wouldn't tell them "you need to

840:20 fold the flanges back" without asking more

840:21 questions; is that right?

840:22 A. That is -- I think that's too

840:23 vague of a question.

840:24 If I were fitting that

840:25 individual, I would go through the steps that

841:01 I've already outlined to see if they've

841:02 achieved a good fit.

841:21 - 844:11 Fallon, Eric (2020-09-04) 2:25

841:21 Q. My question is this: If you

841:22 think you got a good fit and the soldier's

841:23 earplug, the Combat Arms, looks exactly like

841:24 we see in this picture, if Eric Fallon's

841:25 doing the fit, he walks out the door, doesn't

842:01 he?

842:02 A. If that soldier is conveying to

842:03 me with the criteria that I indicated

842:04 earlier, that they have achieved a good fit,

842:05 and I feel like they have been trained on

842:06 preformed hearing protectors, then there

842:07 would be no need in my mind to do anything

842:08 different.

842:09 Q. Okay. So I just -- I think

842:10 we're in agreement.

842:11 If you think the soldier in

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842:12 this picture has got a good fit and it's

842:13 crammed up against the ear like that and

842:14 they're traveling the world, he marches out

842:15 the door, he's going to do just fine.

842:16 MR. MORRISS: Object to form.

842:17 THE WITNESS: I don't know if

842:18 there's a question there, but when you

842:19 say the word "think," I think what I

842:20 quantified was if I determined through

842:21 some type of interaction with that

842:22 soldier. So I wouldn't consider that

842:23 just a matter of thinking, but maybe

842:24 that's not what you meant.

842:25

843:01 QUESTIONS BY MR. TRACEY:

843:02 Q. No, it's not, but it's a fair

843:03 point.

843:04 My point is, you're an

843:05 audiologist, right? You testified that you

843:06 trained other people on how to fit these

843:07 plugs, right?

843:08 A. That is correct, yes.

843:09 Q. And what you've told me, what I

843:10 heard you say now a couple times, I think, is

843:11 that the soldier in this picture, if you

843:12 asked him questions and you did the tug test

843:13 and you did the muffle test and you believed,

843:14 based on your training, that he had a good

843:15 fit with the Combat Arms Earplug, he walks

843:16 out the door with it sitting just like it

843:17 does in that picture.

843:18 A. If that person -- it's my

843:19 determination is that they have -- through

843:20 interaction with them they have achieved a

843:21 good fit, and I feel like they are trained on

843:22 preformed hearing protectors, then I would

843:23 say the answer to that is yes.

843:24 Q. Okay. So what exactly -- you

843:25 threw in if they're "trained on preformed

844:01 hearing protectors."

844:02 What kind of training do they

844:03 need when they walk out the door? What are

844:04 you talking about?

844:05 A. Well, I believe, as I attempted

844:06 to say earlier, that one of the disadvantages

844:07 of a preformed hearing protector is that they

844:08 can work loose more easily than a hand-formed

844:09 hearing protector, and that they would need

844:10 to be reseated if they did work themselves

844:11 loose. That's what I am referring to.

847:12 - 847:23 Fallon, Eric (2020-09-04) 1:41

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847:12 Q. Dr. Fallon, this is a brochure,

847:13 or a set of instructions, for the Combat Arms

847:14 Earplug.

847:15 Are you familiar with this

847:16 document?

847:17 A. Is this Document 69 or would

847:18 this be 70? I'd like to download it.

847:19 Q. Yeah, 70.

847:20 A. Okay. If you'll bear with me

847:21 while I refresh and find 70, and as soon as I

847:22 have that document opened up, I will let you

847:23 know immediately.

848:04 - 848:16 Fallon, Eric (2020-09-04) 1:05

848:04 Q. Can you go down to the

848:05 Instructions for Use section, please, Corey?

848:06 We're going to blow that up and show it to

848:07 Dr. Fallon.

848:08 Doctor, do you see anything in

848:09 the Instructions for Use section here about

848:10 folding flanges back?

848:11 A. If you'll give me a second,

848:12 I'll take a look at that section.

848:13 Q. Take your time.

848:14 Do you see anything in those

848:15 instructions about folding back the flanges?

848:16 A. I'm just about finished.

849:18 - 849:23 Fallon, Eric (2020-09-04) 0:12

849:18 There's nothing in this

849:19 instruction guide on the Combat Arms Earplug

849:20 about folding back the flanges, is there?

849:21 A. So far what I've read, I do not

849:22 see anything about folding back a flange, you

849:23 are correct.

849:24 - 850:18 Fallon, Eric (2020-09-04) 1:40

849:24 Q. Do you remember when you were

849:25 talking with Mr. Morriss about going through

850:01 the guides for the military and how we needed

850:02 to be professionally fit, and we got to get

850:03 professionally fit and that's why you went

850:04 and did all of this training so that people

850:05 could be professionally fit, and one of the

850:06 disadvantages of this earplug is that it has

850:07 to be professionally fit?

850:08 Do you remember all that

850:09 testimony?

850:10 MR. MORRISS: Object to form.

850:11 THE WITNESS: I do not. I

850:12 remember using the term "fit by

850:13 medically trained personnel." If

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850:14 that's what you mean, then I do recall

850:15 that, yes.

850:16 QUESTIONS BY MR. TRACEY:

850:17 Q. Okay. I sit corrected. That's

850:18 the testimony I'm talking about.

849:24 - 852:16 Fallon, Eric (2020-09-04) 2:25

849:24 Q. Do you remember when you were

849:25 talking with Mr. Morriss about going through

850:01 the guides for the military and how we needed

850:02 to be professionally fit, and we got to get

850:03 professionally fit and that's why you went

850:04 and did all of this training so that people

850:05 could be professionally fit, and one of the

850:06 disadvantages of this earplug is that it has

850:07 to be professionally fit?

850:08 Do you remember all that

850:09 testimony?

850:10 MR. MORRISS: Object to form.

850:11 THE WITNESS: I do not. I

850:12 remember using the term "fit by

850:13 medically trained personnel." If

850:14 that's what you mean, then I do recall

850:15 that, yes.

850:16 QUESTIONS BY MR. TRACEY:

850:17 Q. Okay. I sit corrected. That's

850:18 the testimony I'm talking about.

850:19 Can you look on this -- pan

850:20 out, Corey. I want him to find for me on

850:21 this set of instructions on the Combat Arms

850:22 where it says you've got to be professionally

850:23 fit.

850:24 Can you find that for me,

850:25 Dr. Fallon, where 3M tells the world that

851:01 this hearing protection device is so

851:02 complicated we need professionals?

851:03 MR. MORRISS: Object to form.

851:04 THE WITNESS: Sir, I think

851:05 there may be some confusion. I'd like

851:06 to ask something before we move

851:07 forward.

851:08 You just referenced what I

851:09 stated about what the military did,

851:10 and then you moved into this.

851:11 It was not my understanding

851:12 that 3M would tell the military how

851:13 they should fit hearing protection.

851:14 The military has its own policy, is my

851:15 understanding, that did not come from

851:16 a manufacturer on how to fit hearing

851:17 protection.

851:18 I can look at this document

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851:19 from a manufacturer and see if they

851:20 have anything about medical fitness.

851:21 That may or may not exist. But that,

851:22 to me, is not related to the testimony

851:23 that you referenced that I gave about

851:24 the military's requirements.

851:25 MR. TRACEY: Objection.

852:01 Nonresponsive.

852:02 QUESTIONS BY MR. TRACEY:

852:03 Q. Dr. Fallon, you'd do better if

852:04 you just answer my questions and not guess

852:05 about what I'm doing or where I'm going.

852:06 Here's my question to you: Can

852:07 you find in here, anywhere in this 3M-created

852:08 document about your company's plug, anywhere

852:09 where they tell anybody this earplug needs to

852:10 be professionally fit?

852:11 MR. MORRISS: Object to form.

852:12 You can answer.

852:13 THE WITNESS: Well, let me read

852:14 the entire document because I have

852:15 not. I've only read what you've

852:16 directed me to.

852:23 - 853:21 Fallon, Eric (2020-09-04) 1:03

852:23 Q. How are we doing?

852:24 A. I'm a slow reader. My

852:25 apologies.

853:01 What -- I do not see anything

853:02 in this document that matches what I

853:03 testified that the military's requirements

853:04 were. I do not see that.

853:05 Q. Do you know, sir, that your

853:06 company sold this product to people other

853:07 than the military?

853:08 A. I believe that I have learned

853:09 that this product was sold to other than the

853:10 military.

853:11 Q. Yeah.

853:12 In fact, yesterday you and I

853:13 went through a Peltor CHIM brochure that was

853:14 directed to -- what was CHIM again?

853:15 A. My understanding is CHIM stands

853:16 for the commercial home improvement market.

853:17 Q. Yeah.

853:18 That's a nonmilitary market,

853:19 isn't it?

853:20 A. That is a market that would

853:21 include other than military markets, yes.

854:17 - 854:22 Fallon, Eric (2020-09-04) 0:14

854:17 Q. So we don't see anywhere in

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854:18 anything where 3M makes a claim that in order

854:19 to fit this right, you need a pro to do it,

854:20 do we?

854:21 A. I do not see anything in here

854:22 that matches the military's policy.

854:23 - 855:01 Fallon, Eric (2020-09-04) 0:09

854:23 Q. What does a very large ear

854:24 canal mean?

854:25 A. I don't really know. You know,

855:01 "large" is a subjective term.

855:19 - 855:19 Fallon, Eric (2020-09-04) 0:02

855:19 Q. My question was very specific,

855:19 - 856:21 Fallon, Eric (2020-09-04) 1:02

855:19 Q. My question was very specific,

855:20 Dr. Fallon. When somebody --

855:21 A. Okay.

855:22 Q. -- asks you, after looking at

855:23 your PowerPoint that has a slide that says,

855:24 "for very large ear canals, you might want to

855:25 fold the flange back," and somebody asked the

856:01 question that I did to you, "What does" --

856:02 "What is a very large ear canal?" what would

856:03 your answer be?

856:04 A. My answer would have likely

856:05 been what I just gave you, which is, that's a

856:06 subjective term, and I would say a larger

856:07 than you're used to -- what you would

856:08 consider to be an average ear canal. That's

856:09 the best answer I would be able to come up

856:10 with.

856:11 Q. Okay. It's really a term

856:12 without any meaning or reference, isn't it?

856:13 MR. MORRISS: Object to form.

856:14 THE WITNESS: I would agree

856:15 it's --

856:16 QUESTIONS BY MR. TRACEY:

856:17 Q. Objective reference?

856:18 A. It's a subjective term, which

856:19 is why I would have taught -- anytime that

856:20 you can't use it. I agree with you, it's a

856:21 subjective term.

869:20 - 870:13 Fallon, Eric (2020-09-04) 1:42

869:20 Q. I just want to make sure

869:21 factually because we have two days of

869:22 testimony. You've looked at a lot of

869:23 documents, both on examination with

869:24 Mr. Morriss and through others.

869:25 We could agree over the course

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870:01 of these two days, sir, you have not been

870:02 shown and you have not seen any picture of

870:03 the Combat Arms in somebody's ear with the

870:04 flanges folded back, correct?

870:05 A. That is correct, I do not

870:06 recall that.

870:07 Q. Okay. You don't recall any

870:08 training presentation that you've ever used,

870:09 sir, with a picture of the Combat Arms in

870:10 somebody's ear with the flanges folded back,

870:11 correct?

870:12 A. I do not recall seeing a photo

870:13 in someone's ear of the flange folded back.

873:03 - 873:08 Fallon, Eric (2020-09-04) 0:15

873:03 Were you a part of the

873:04 evaluation of the Combat Arms before it was

873:05 accepted by USACHPPM?

873:06 A. I was not part of the

873:07 evaluation before that earplug was approved,

873:08 no.

873:18 - 874:03 Fallon, Eric (2020-09-04) 0:22

873:18 Q. Okay. And I'm focused again

873:19 specifically on the Combat Arms version 2,

873:20 and I asked you whether you had

873:21 familiarity -- you had familiarity with the

873:22 information that was provided or not provided

873:23 to the Army in connection with its

873:24 consideration of the product.

873:25 You have no information in that

874:01 regard, correct?

874:02 A. I do not have any information

874:03 in that regard, you are correct.

876:06 - 876:10 Fallon, Eric (2020-09-04) 0:14

876:06 Q. Okay. Are there any other

876:07 preformed plugs that have opposing flanges on

876:08 the other side of the hearing protection

876:09 that's inserted into the ear? Any others?

876:10 A. Not to my knowledge.

879:03 - 879:12 Fallon, Eric (2020-09-04) 0:23

879:03 Q. I'm asking you about if a seal

879:04 could be broken in a manner imperceptibly to

879:05 the user, that would be a concern; we could

879:06 agree, right?

879:07 MR. MORRISS: Object to form.

879:08 THE WITNESS: If that was

879:09 possible and the person could not

879:10 perceive it, then perhaps.

879:11 MR. BUCHANAN: Thank you, sir.

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879:12 No further questions.

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