EXHIBIT 1

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Pltf Objections 3M Objections Rulings

19:21 - 20:01 Gates, Kathy 2020-05-29 0:12

19:21 Q. (BY MR. MORRISS:) Good morning,

19:22 Col. Gates.

19:23 A. Good morning.

19:24 Q. Would you, just for the record,

19:25 identify yourself to the jury, please?

20:01 A. Yes, I am Kathy Gates.

21:13 - 22:06 Gates, Kathy 2020-05-29 1:53

21:13 Q. Could you tell the jury a little bit

21:14 about your formal education, where you went to

21:15 college, postgraduate work?

21:16 A. I -- I did my undergraduate work at

21:17 State University of New York in Plattsburgh in

21:18 speech and hearing science. I went to University

21:19 of Maryland at College Park and obtained my

21:20 master's in audiology. And then I went to A.T.

21:21 Still University through a distance learning

21:22 program and obtained my audiology clinical

21:23 doctorate degree.

21:24 Q. So did the undergraduate and master's

21:25 come consecutively, or did you take a break between

22:01 studying for the two degrees?

22:02 A. No. Consecutive. Consecutively.

22:03 Q. And how about the postdoctoral work,

22:04 was it something that came later in your career or

22:05 immediately after you finished your master's?

22:06 A. Later in the career, in my career.

22:07 - 22:11 Gates, Kathy 2020-05-29 0:09

22:07 Q. Are you currently licensed as an

22:08 audiologist?

22:09 A. Yes.

22:10 Q. And in what state or states?

22:11 A. In New Jersey and New York.

22:15 - 23:13 Gates, Kathy 2020-05-29 1:29

22:15 Q. Let me ask it an easier way.

22:16 Approximately when did you become licensed?

22:17 A. I became licensed in 1988.

22:18 Q. And are you currently a member of any

22:19 professional association or group?

22:20 A. Yes. I am a member of the American

22:21 Speech-Hearing Association, ASHA; and I am a member

22:22 of the National Hearing Conservation Association

22:23 and a member of the American Academy of Audiology.

22:24 Q. Do you play a leadership role in any

22:25 of those professional associations?

23:01 A. I do. I play a leadership role in

23:02 ASHA. I am the coordinator for the special

23:03 interest group Public Health and Audiology, and

23:04 then for the NHCA, the National Hearing

23:05 Conservation Association, I am the marketing and

23:06 communications director.

23:07 Q. Do you know how long you have had

23:08 some role with these three professional

23:09 associations, and just approximate?

23:10 A. ASHA, I have been a member since

23:11 1988; NHCA, I became more active in 2010; and then

23:12 AAA, I have been a member since the beginning of

23:13 the organization, which I think was around 1990.

25:04 - 25:15 Gates, Kathy 2020-05-29 1:43

25:04 Q. And can you just briefly describe as

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 2 of 102
25:05 an audiologist what your roles and responsibilities

25:06 were?

25:07 A. I was the chief of the audiology

25:08 clinic, and my primary roles were to provide

25:09 clinical audiology services to soldiers and their

25:10 family members, also retirees. And then the other

25:11 portion of my responsibility was hearing loss

25:12 prevention or hearing conservation and providing

25:13 health education and earplug fittings to the basic

25:14 training soldiers there at Fort Dix that were

25:15 attending basic training.

25:16 - 27:18 Gates, Kathy 2020-05-29 3:18

25:16 Q. And what year did you retire from

25:17 that?

25:18 A. I retired in 2011.

25:19 Q. So I expect you have had a lot of

25:20 stops along the way. But could you give the jury

25:21 just an overview of your career in the Army and the

25:22 roles you played as an Army doctor?

25:23 A. Well, I first started out, again, at

25:24 Fort Dix, serving as chief of audiology. Then I

25:25 transferred to 98th General Hospital in Nuremberg,

26:01 Germany, and I served as chief of the audiology

26:02 clinic at the hospital. And then I was responsible

26:03 for, I would say, approximately fifteen outlying

26:04 hearing conservation clinics. And then I PCS'd

26:05 from Germany, I went to the advanced course in San

26:06 Antonio at the Army Medical Department Center and

26:07 School. And then upon completion of the advanced

26:08 course, I went to Fort Polk, Louisiana, and I

26:09 served as the chief audiology, a clinic there, and

26:10 was both responsible for the clinical mission as

26:11 well as the hearing conservation mission.

26:12 And then after Fort Polk, I went to

26:13 the Center For Health Promotion and Preventive

26:14 Medicine at Aberdeen and primarily worked in

26:15 hearing conservation. My title was consulting

26:16 audiologist. I went around and did site assessment

26:17 visits to hearing conservation sites and provided

26:18 recommendations for program improvements and also

26:19 was instrumental in the development of the hearing

26:20 conservation software program, the Defense

26:21 Occupational Hearing Readiness-Hearing Conservation

26:22 program.

26:23 And then after that, I went to Walter

26:24 Reed. I served as the deputy director for the Army

26:25 Audiology and Speech Center. And then I went to

27:01 the Office of the Surgeon General and worked there

27:02 as a audiology consultant, and also during that

27:03 time I served as the audiology consultant to the

27:04 Army surgeon general.

27:05 And I worked in the Preventive

27:06 Medicine office, the Proponency Office For

27:07 Preventive Medicine, focusing in more on

27:08 strategic-level projects and -- and working those

27:09 types of activities.

27:10 And then my final position, I served

27:11 as the integrated service chief at the --

27:12 between -- at the Walter Reed National Military

27:13 Medical Center. And I was very heavily involved in

27:14 the integration of the Army Audiology and Speech

27:15 Center and Bethesda audiology and speech clinic, to

27:16 combine those two under the audiology and speech

27:17 center known today at Walter Reed National Military

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 3 of 102
27:18 Medical Center.

28:04 - 28:08 Gates, Kathy 2020-05-29 0:15

28:04 Q. Let me repeat it. So did you have

28:05 some involvement with hearing conservation and

28:06 hearing protection devices at every job while you

28:07 were in the military?

28:08 A. Yes.

30:21 - 34:23 Gates, Kathy 2020-05-29 6:23

30:21 Q. So I asked a poor question. So if I

30:22 went to the centralized database and I wanted to

30:23 find the hearing history or audiogram history of a

30:24 particular individual soldier, would I be able to

30:25 get it from there?

31:01 A. Yes.

31:02 Q. Is there other information contained

31:03 in the DOEHRS database, such as noise exposure by

31:04 installation or hearing loss by installation?

31:05 A. There are various reports that can

31:06 be -- you can run them. The Hearing Conservation

31:07 Program manager has access to the data repository,

31:08 and they can run various reports looking at

31:09 different types of trends.

31:10 Q. And do you recall, just to give me

31:11 some examples, some of the trends that you can

31:12 analyze from the database?

31:13 A. You can look at -- for example, in

31:14 the Army, we have hearing profiles. And there's an

31:15 H-1, H-2, -3, and -4. And you can run a report

31:16 looking at the percents hearing profiles broken out

31:17 by the individual profile data. And you can also

31:18 run a report and look at compliance trends in terms

31:19 of participation in the Hearing Conservation

31:20 Program.

31:21 Q. Would that be by installation?

31:22 A. It is by installation, and it can

31:23 also be rolled up to a -- a service level.

31:24 Q. If I wanted to talk to someone in the

31:25 military to give me the best information about what

32:01 kind of data I could get from this system, who

32:02 would I talk to?

32:03 A. Well, there are functional

32:04 representatives within each service. I don't know

32:05 the functional representatives, but I believe they

32:06 are located -- the functional representative for

32:07 the Army is located at the Public Health Center at

32:08 Aberdeen Proving Ground. For the Navy, I think

32:09 that they are located at the Navy Marine Corps

32:10 Public Health Center. And Air Force, they are

32:11 located at -- at Wright Patterson. I am not sure

32:12 of the name of the location, but that is where they

32:13 are housed.

32:14 Q. During your military career, did you

32:15 have an opportunity to work with the Department of

32:16 Defense working group?

32:17 A. I did. While I was assigned at the

32:18 Center For Health Promotion and Preventive

32:19 Medicine, I was a participant in the DoD Hearing

32:20 Conservation Working Group while I was there. And

32:21 then later on in my career, for a brief time, I

32:22 served as the chair of the Hearing Conservation

32:23 Working Group.

32:24 Q. So in the first instance where you

32:25 were working with the DoD working group, what time

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 4 of 102
33:01 frame would that have covered?

33:02 A. That was, I would say, 1999

33:03 through -- or, I'm sorry, 1996 through 1999.

33:04 Q. And then when you returned as chair,

33:05 approximately when was that?

33:06 A. I believe that was 2010.

33:07 Q. And just so I have the name correct,

33:08 it is the DoD Hearing Conservation Working Group?

33:09 A. Yes, sir, that is correct.

33:10 Q. And in that '96 to '99 time frame,

33:11 what were your roles and responsibilities?

33:12 A. During that time frame, my primary

33:13 roles and responsibilities were development of the

33:14 hearing conservation software, kind of working with

33:15 the programmers in developing the logic for the

33:16 software, and also working with the -- the other

33:17 Navy and Air Force counterparts.

33:18 I also was involved in maintaining

33:19 data for Army hearing conservation compliance data,

33:20 the monitoring audiometry. And I also worked a

33:21 project of creating a separate MEPRS code, a

33:22 workload reporting code, for hearing conservation.

33:23 In the past, hearing conservation has

33:24 always been lumped under occupational health,

33:25 clinical audiology or preventive medicine. And so

34:01 visibility at the installation level, there was no

34:02 visibility until we were able to create this

34:03 Medical Expense Performance Reporting code. So I

34:04 was very much involved in that and worked with the

34:05 individual services on getting the code created and

34:06 approved.

34:07 Q. Who would have been the chairman of

34:08 the DoD Hearing Conservation Work Group?

34:09 A. That was Dr. Doug Ohlin.

34:10 Q. And would that be -- in the time '96

34:11 to '99, when you were involved with the working

34:12 group, was Dr. Doug Ohlin chairman of the group for

34:13 that period?

34:14 A. Yes, sir. Uh-huh.

34:15 Q. Did you have interactions with him

34:16 from '96 to '99?

34:17 A. I did. He was my -- he was my boss,

34:18 my rater at CHPPM.

34:19 Q. Did the DoD working group, was it

34:20 limited to the Army or did it include all branches

34:21 of the military?

34:22 A. It included all branches of the

34:23 military.

34:24 - 35:01 Gates, Kathy 2020-05-29 0:11

34:24 Q. Did the DoD working group play a role

34:25 in evaluating hearing protection devices?

35:01 A. No, not directly, no.

35:02 - 35:11 Gates, Kathy 2020-05-29 1:40

35:02 Q. Do you recall whether Doug Ohlin was Re: [35:02 to 35:11] SUSTAINED

35:03 involved in the evaluation of hearing protection Pltf Obj 602, MIL G3,

35:04 devices in that '96 to '99 time frame? speculation

35:05 A. I believe he was involved with the --

35:06 I guess the creation of the Combat Arms Earplug.

35:07 And so he did have some coordination between the --

35:08 the French that developed the filter and then the

35:09 company that -- the U.S. company that worked on

35:10 incorporating the filter into the device. I think

35:11 that was the era.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 5 of 102
36:11 - 36:18 Gates, Kathy 2020-05-29 0:26

36:11 Q. Since joining the service as an

36:12 audiologist in '87, has it been your experience

36:13 that certain noise exposures in military

36:14 settings -- risk of hearing loss to soldiers and

36:15 other military persons?

36:16 A. The military noise exposures and

36:17 potential of hearing loss, noise-induced hearing

36:18 loss? Yes.

39:09 - 39:16 Gates, Kathy 2020-05-29 0:22

39:09 Q. As a military audiologist advising

39:10 soldiers, are there some noises that have required

39:11 double protection?

39:12 A. Yes. In accordance with the

39:13 regulations, yes.

39:14 Q. What is double protection?

39:15 A. Double protection is when you wear an

39:16 earplug along with a noise muff.

39:17 - 39:23 Gates, Kathy 2020-05-29 0:27

39:17 Q. And do you, as we sit here today, Re: [39:20 to 39:23] SUSTAINED

39:18 recall what noise levels require double protection? Pltf Obj 602, foundation,

39:19 A. I really -- I mean, I -- it has been misstates, 403 (misleading)

39:20 a while, and it is a little foggy. But anything

39:21 beyond a hundred and ten dB for a steady state and

39:22 over a hundred and forty dBP for impulse noise, I

39:23 believe.

39:24 - 40:04 Gates, Kathy 2020-05-29 0:17

39:24 Q. So that would mean if you -- whatever

39:25 the regulations say the noise level is, if a

40:01 soldier or military personnel knows that they will

40:02 be exposed to that, they would have to wear both a

40:03 plug and then earmuffs?

40:04 A. That is correct.

40:05 - 40:12 Gates, Kathy 2020-05-29 0:24

40:05 Q. As a military audiologist, are there

40:06 some noises military personnel are exposed to that

40:07 no hearing protection device can protect them from

40:08 damage?

40:09 A. I am unaware of -- I mean, I am

40:10 unaware of that. I think if someone has the

40:11 hearing protection device in, then it protects

40:12 their hearing.

41:04 - 41:16 Gates, Kathy 2020-05-29 1:36

41:04 Q. (BY MR. MORRISS:) Since you joined

41:05 the military in 1987, have hearing loss and

41:06 tinnitus been common problems that you have seen in

41:07 soldiers?

41:08 A. Yes.

41:09 Q. Was that true in 1987, when you

41:10 started?

41:11 A. Yes, it -- in 1987, yes.

41:12 Q. Was it true throughout your work in

41:13 the military up until your retirement?

41:14 A. Yes.

41:15 Q. And is it true still today?

41:16 A. Yes.

41:17 - 42:07 Gates, Kathy 2020-05-29 1:03

41:17 Q. You mentioned earlier the Hearing

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 6 of 102
41:18 Conservation Program. What is a Hearing

41:19 Conservation Program?

41:20 A. The Hearing Conservation Program is a

41:21 program that-- for DoD, there's a regulation, DoDI

41:22 6055.12, and it specifically provides information

41:23 on the individual elements of a Hearing

41:24 Conservation Program. There are seven elements

41:25 that make up the Hearing Conservation Program, and

42:01 each service, then, from the DoDI, they take

42:02 their -- that information and then develop their

42:03 own service-specific regulation. For the Army that

42:04 is DA PAM 40-501, but the seven elements of the

42:05 program are similar across all services. They can

42:06 make their regulation more stringent, but it cannot

42:07 be less stringent than the DoDI.

43:17 - 44:22 Gates, Kathy 2020-05-29 2:54

43:17 Q. (BY MR. MORRISS:) So, Colonel Gates,

43:18 looking at Exhibit Number 1 [sic], is this the DoD

43:19 requirements that would have been in place for the

43:20 various branches of the military in terms of

43:21 implementing a Hearing Conservation Program?

43:22 A. Yes.

43:23 Q. And if we turn over to the third page

43:24 of the document, Section 6.1, does it require that

43:25 each branch prepare a written plan for the

44:01 implementation of a comprehensive Hearing

44:02 Conservation Program?

44:03 A. Yes. That is correct.

44:04 Q. And did that include addressing

44:05 hearing protection devices?

44:06 A. Yes. That was one of the elements of

44:07 the Hearing Conservation Program.

44:08 Q. And then if you will turn over to

44:09 Page 7, Section 6.6.2. Does the DoD give guidance

44:10 on when hearing protectors were to be available to

44:11 military personnel?

44:12 A. Yes.

44:13 Q. And can you describe that, please?

44:14 A. The individual service members were

44:15 provided hearing protection by -- well, the units

44:16 were responsible for providing them unit -- hearing

44:17 protection. However, at the time of monitoring

44:18 audiometry, usually they are -- they are also

44:19 provided hearing protection and instruction

44:20 regarding proper fitting and wear of the hearing

44:21 protection. And I am speaking normally on behalf

44:22 of the Army because that is my experience.

45:12 - 45:16 Gates, Kathy 2020-05-29 0:16

45:12 Q. (BY MR. MORRISS:) Col. Gates, has

45:13 the DoD requirement that we are looking at, has

45:14 this or one similar to it been in place for many

45:15 years?

45:16 A. Yes.

46:01 - 48:11 Gates, Kathy 2020-05-29 3:15

46:01 Q. (BY MR. MORRISS:) I will ask it

46:02 again, Col. Gates. If we go to 6.6.7, is there a

46:03 section that deals with preformed earplugs?

46:04 A. Yes.

46:05 Q. And what is your understanding as an

46:06 audiologist, what is a preformed earplug?

46:07 A. A preformed earplug is an earplug

46:08 that can be used over and over again. They come in

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 7 of 102
46:09 different sizes, and depending on the ear canal

46:10 size determines the -- the size of the earplug.

46:11 Early on in my career we had

46:12 single-flange earplugs or triple-flange earplugs,

46:13 and those were the earplugs that we would fit our

46:14 soldiers with.

46:15 Q. Would the Combat Arms Version 2

46:16 dual-ended plug that we are here about today, would

46:17 that be a preformed earplug?

46:18 A. Yes.

46:19 Q. All right. And does the DoD set out

46:20 how the preformed earplugs would be fitted and

46:21 issued?

46:22 A. There are hearing conservationists

46:23 that are assigned to units, and they are provided

46:24 training and become hearing conservation

46:25 technicians so that they can assist and educate and

47:01 make sure that soldiers under their command

47:02 understand how to properly use and insert the

47:03 earplug.

47:04 Q. And the -- and the DoD 6.6.7

47:05 specifically requires for a preformed earplug that

47:06 it be fitted and issued only under the supervision

47:07 of personnel who have been specifically trained to

47:08 fit earplugs, correct?

47:09 A. Right.

47:10 Q. And then if we go down to 6.6.9, is

47:11 it fair to say that the DoD required that medically

47:12 trained personnel examine the fit and condition of

47:13 preformed earplugs?

47:14 A. Yes.

47:15 Q. Okay. And that would include the

47:16 Combat Arms Version 2 dual-ended plug, correct?

47:17 A. Yes.

47:18 Q. And then finally 6.6.10 would require

47:19 that the individual personnel receiving the plug

47:20 receive adequate and effective training on proper

47:21 care of the personal hearing protection device,

47:22 correct?

47:23 A. Correct.

47:24 Q. All right. Now, then, the DoD would

47:25 be sort of the guidance that the individual branch

48:01 would use in putting their programs together; is

48:02 that correct?

48:03 A. That's correct.

48:04 Q. And did, in fact, the Army, during

48:05 the time that you were there, have a Hearing

48:06 Conservation Program that was in place?

48:07 A. Yes.

48:08 Q. And did the written program comply

48:09 with the DoD requirements?

48:10 A. Yes.

48:11 Q. All right.

48:22 - 49:08 Gates, Kathy 2020-05-29 1:01

48:22 A. Oh, Tab 39? Okay. Okay. I have it

48:23 opened. It says "DA PAM 40-501," dated December of

48:24 1998.

48:25 Q. And is this the Hearing Conservation

49:01 Program that would have been implemented by the

49:02 Army following the DoD requirements for a Hearing

49:03 Conservation Program?

49:04 A. Yes, sir.

49:05 Q. Do you know how long this particular

49:06 version of the Hearing Conservation Program was in

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 8 of 102
49:07 place until it was amended or changed in some

49:08 substantive way?

49:09 - 50:05 Gates, Kathy 2020-05-29 2:02

49:09 A. It was updated, I think it was 2012,

49:10 the -- the DA PAM 40-501 was revised to reflect the

49:11 Army Hearing Program.

49:12 Q. All right. Let me show you what we

49:13 will mark as Tab 40, and it will be Exhibit 5.

49:14 (Exhibit 5 was marked for

49:15 identification.)

49:16 Q. (BY MR. MORRISS:) And if you can

49:17 identify Exhibit 5 for us, please.

49:18 A. That is the DA PAM 40-501 Army

49:19 Hearing Program, and the date is 2015. So I was a

49:20 little bit early on the date.

49:21 Q. So, now, Exhibits 4 and 5, do they

49:22 sort of represent the Army's Hearing Conservation

49:23 Program requirements from December of -- 10th,

49:24 1998, and at least up through and including January

49:25 the 15th -- January 8, 2015, and beyond?

50:01 A. Yes.

50:02 Q. So if you will turn back to Exhibit

50:03 39, please -- Exhibit 4. Tab 39, Exhibit 4. If

50:04 you will go over to Section 6.1, which is on Page 5

50:05 of the document.

50:06 - 51:17 Gates, Kathy 2020-05-29 2:23

50:06 Did the -- did the Army Hearing

50:07 Conservation Program have a section that dealt with

50:08 hearing protectors?

50:09 A. Yes.

50:10 Q. In compliance with the DoD

50:11 requirements, did it require that all personnel

50:12 working or visiting in potentially hazardous noise

50:13 areas be provided hearing protection?

50:14 A. Yes.

50:15 Q. And then if you look down at 6.2, did

50:16 the Army program give specifications of the kinds

50:17 of plugs that would be required under certain

50:18 particular noise environments?

50:19 A. Yes.

50:20 Q. If you turn to 6.3(a), did the Army's

50:21 Hearing Conservation Program provide information

50:22 specific to preformed earplugs, both triple- or

50:23 single-flange?

50:24 A. Yes.

50:25 Q. And who was responsible for fitting

51:01 and examining these earplugs when they were given

51:02 to soldiers or other military personnel?

51:03 A. The audiology clinic, as part of

51:04 monitoring audiometry, would -- I -- the clinics

51:05 that I managed, we incorporated the hearing

51:06 protection fitting at the time of monitoring

51:07 audiometry. So we would fit their -- recheck their

51:08 hearing testing annually at the time of their

51:09 annual hearing test.

51:10 There are other ways of doing this as

51:11 well. Soldier readiness processing, the -- that is

51:12 an annual requirement. That is another way of

51:13 accomplishing the refitting and the recheck of the

51:14 hearing protection. And then also the individual

51:15 unit hearing conservation NCO is also trained to --

51:16 to fit and evaluate the hearing protection on an

51:17 annual basis.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 9 of 102
51:18 - 52:14 Gates, Kathy 2020-05-29 1:08

51:18 Q. And under any of the three scenarios

51:19 you described for us, as long as it was a medically

51:20 trained person fitting the preformed earplug, it

51:21 would be in compliance with the Hearing

51:22 Conservation Program?

51:23 A. Yes.

51:24 Q. Was there sort of an order or ranking

51:25 of the type plug that would first be tried when

52:01 this medically trained person was fitting the plug

52:02 on a particular soldier or military personnel?

52:03 A. Well, oftentimes if you are doing a

52:04 large group fitting, you go with the -- the medium

52:05 orange triple-flange earplug and -- and just have

52:06 the group, by the numbers, insert the earplug.

52:07 And then I would have them

52:08 single-file up, and we would evaluate their

52:09 earplug. And then if it was too small or too

52:10 large, we would have them either go with the green

52:11 triple-flange or the blue triple-flange and then

52:12 have them go through the line again to make sure

52:13 that they were fitted properly with the hearing

52:14 protection.

52:15 - 52:18 Gates, Kathy 2020-05-29 0:14

52:15 Q. Was there any single plug that fit

52:16 everyone?

52:17 A. Based on -- no. Maybe the yellow

52:18 foam plug --

52:19 - 52:23 Gates, Kathy 2020-05-29 1:37

52:19 Q. Were there any triple-flange or

52:20 single-flange plugs that fit everyone?

52:21 A. These -- these earplugs were sized,

52:22 and they were sized to fit different ear canals.

52:23 So not one size fit all.

52:24 - 53:13 Gates, Kathy 2020-05-29 1:05

52:24 Q. During the -- sort of the late '90s,

52:25 early 2000 time frame, who would have been the

53:01 individuals physically helping fit the earplug,

53:02 checking the fitting, examining the plug -- who

53:03 would have been the pool of people that could do

53:04 that? Not individual names, but like the type of

53:05 people that could do that?

53:06 A. Trained hearing conservationists, the

53:07 ear, nose and throat, ENT, technicians, civilian

53:08 occupational nurse personnel, and then the hearing

53:09 conservationists that were trained under the

53:10 hearing conservation training program would be unit

53:11 medics and other NCOs that had been appointed to

53:12 serve as the hearing conservation officer within

53:13 the unit.

54:05 - 54:14 Gates, Kathy 2020-05-29 0:25

54:05 Q. So did audiologists within the

54:06 military from time to time put on presentations

54:07 about hearing protection devices?

54:08 A. Yes.

54:09 Q. And did those presentations include,

54:10 in some instances, how to fit plugs?

54:11 A. Yes.

54:12 Q. All right. Did it include specifics

54:13 on certain types of plugs?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 10 of 102
54:14 A. Yes.

57:01 - 57:07 Gates, Kathy 2020-05-29 0:28

57:01 Q. Let me ask a better question. Do you

57:02 remember the Combat Arms Version 2 dual-ended plug,

57:03 what it looked like?

57:04 A. I do. From the working group, we did

57:05 have the opportunity to experiment with the

57:06 dual-ended Combat Arms earplug. And so I am

57:07 familiar with that dual-ended-type device.

60:19 - 61:16 Gates, Kathy 2020-05-29 1:14

60:19 Q. And if you will go now to Exhibit Re: [60:19 to 62:03] SUSTAINED

60:20 10 -- or Tab 10. And I am going to give you Pltf Obj 602, foundation, 403

60:21 something that is easier to read here in just a (undue delay, waste of time,

60:22 minute. needless presentation of

60:23 (Exhibit 7 was marked for cumulative evidence) 

60:24 identification.)

60:25 A. Okay. Re: [61:05 to 61:10] SUSTAINED

61:01 Q. (BY MR. MORRISS:) But this was -- Pltf Obj 611, 802

61:02 this is what was attached to the email that we just

61:03 looked at. Does this appear to be a wallet card?

61:04 A. Does it -- yes.

61:05 Q. And on the first page, it has got --

61:06 from a soldier in Iraq, and it has got a quote

61:07 about Combat Arms working "great in this

61:08 environment...they probably made the difference

61:09 between eardrum/hearing damage and not," correct?

61:10 A. That's correct, yes.

61:11 Q. Who would have been responsible

61:12 for -- if you know, for preparing wallet cards like

61:13 this within the military?

61:14 A. I think it was CHPPM, the -- the

61:15 folks that were assigned under Dr. Doug Ohlin

61:16 probably worked on developing the wallet cards.

61:17 - 62:03 Gates, Kathy 2020-05-29 1:48

61:17 Q. And then if you will go over to the Re: [60:19 to 62:03] OVERRULED

61:18 next page of the wallet, does it provide Pltf Obj 602, foundation, 403

61:19 instructions about insertion of the dual-ended (undue delay, waste of time,

61:20 plug? needless presentation of

61:21 A. Yes. cumulative evidence) 

61:22 Q. And is one of those, if you look --

61:23 if you look down, are there bullet points that Re: [61:17 to 62:03] OVERRULED

61:24 relate to both fit and care for the earplugs? Pltf Obj 611

61:25 A. Yes.

62:01 Q. And if you go down to the second

62:02 bullet point, is there also an instruction about

62:03 folding the opposing plug back?

62:06 - 62:06 Gates, Kathy 2020-05-29 0:01

62:06 A. Yes, I see that. Re: [62:06 to 62:16] OVERRULED

Pltf Obj 602, foundation, 403

(undue delay, waste of time,

needless presentation of

cumulative evidence) 

62:07 - 62:16 Gates, Kathy 2020-05-29 1:30

62:07 Q. (BY MR. MORRISS:) Okay. So just for Re: [62:06 to 62:16] OVERRULED

62:08 the record, the wallet card says, "For very large Pltf Obj 602, foundation, 403

62:09 ear canals, fold the opposing plug back," correct? (undue delay, waste of time,

62:10 A. That's correct. needless presentation of

62:11 Q. Okay. And do you know how this cumulative evidence) 

62:12 particular wallet card would have been distributed

62:13 within the military? Re: [62:11 to 62:16] SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 11 of 102
62:14 A. I think that it probably was Pltf Obj 611

62:15 disseminated through the audiology community from

62:16 the CHPPM office.

62:17 - 62:20 Gates, Kathy 2020-05-29 0:11

62:17 Q. Do you know where the fitting

62:18 instruction or tip about folding the opposing plug

62:19 back, where it originated or where it came from?

62:20 A. No, I don't.

63:05 - 63:14 Gates, Kathy 2020-05-29 0:28

63:05 MR. MORRISS: That is fair; let me Re: [63:05 to 63:14] OVERRULED

63:06 ask it this way. Let's go to -- Pltf Obj 602, foundation, 403

63:07 Will, it's Tab 65. It will be (undue delay, waste of time,

63:08 Exhibit 6 [sic], I guess. needless presentation of

63:09 (Exhibit 8 was marked for cumulative evidence) 

63:10 identification.)

63:11 Q. (BY MR. MORRISS:) Just -- you are

63:12 welcome to look at it. It is just a little better

63:13 version of what we looked at earlier.

63:14 A. Sure.

63:18 - 66:07 Gates, Kathy 2020-05-29 3:22

63:18 Q. (BY MR. MORRISS:) There is an Re: [65:03 to 65:09] OVERRULED

63:19 insignia of USACHPPM on the bottom, correct? Pltf Obj 602, 611, foundation,

63:20 A. That's correct, yes. 403 (undue delay, waste of

63:21 Q. And tell me what "USACHPPM" stands time, needless presentation of

63:22 for. cumulative evidence)

63:23 A. That is U.S. Army Center For Health

63:24 Promotion and Preventive Medicine. Re: [65:18 to 66:07] OVERRULED

63:25 Q. And did you work for USACHPPM at some Pltf Obj 602, 611, 802,

64:01 point in time? foundation, 403 (undue delay,

64:02 A. I did. waste of time, needless

64:03 Q. Okay. In what years or time frames presentation of cumulative

64:04 did you work for USACHPPM? evidence)

64:05 A. 1996 through I believe 1999, the end

64:06 of 1999.

64:07 Q. And did you interact with USACHPPM in

64:08 your other roles with the military?

64:09 A. Yes.

64:10 Q. Okay. And what was the sort of

64:11 purpose of USACHPPM both when you worked for them

64:12 and during the time that you interacted with

64:13 USACHPPM?

64:14 A. USACHPPM was kind of the hearing

64:15 conservation consultant branch, and it provided

64:16 audiologists information regarding the Hearing

64:17 Conservation Program. Early on in the -- in the

64:18 days they would conduct data analysis of the HEARS

64:19 data and look at different trends. They would look

64:20 at STS trends, significant threshold shift trends,

64:21 they would look at overall compliance trends. And

64:22 so CHPPM would share that information with the

64:23 individual audiologists who were responsible for

64:24 managing their individual programs.

64:25 Q. And did USACHPPM also provide

65:01 information about hearing protection devices?

65:02 A. Yes.

65:03 Q. All right. And at least on Exhibits

65:04 5 and 6 there is a USACHPPM insignia, correct?

65:05 A. That's correct, yes.

65:06 Q. And it provides information about how

65:07 to fit the Combat Arms Version 2 dual-ended plug,

65:08 correct?

65:09 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 12 of 102
65:10 Q. Have you also seen publications from

65:11 CHPPM or other military sources -- well, first of

65:12 all, CHPPM is a military organization? I want to

65:13 make sure that is clear.

65:14 A. Yes, that is correct.

65:15 Q. It is not a manufacturer of earplugs,

65:16 right?

65:17 A. No. No.

65:18 Q. Did USACHPPM also publish information

65:19 that was distributed under the title of "Just the

65:20 Facts"?

65:21 A. I believe so. There was a document,

65:22 "Just the Facts."

65:23 Q. And do you recall, you know, what the

65:24 purpose of the "Just the Fact" publication was?

65:25 A. I would have to look at it. I -- I

66:01 think that they had various "Just the Facts" types

66:02 of information, just to educate the soldiers and

66:03 civilians routinely exposed to noise on just the

66:04 facts regarding noise exposure and hearing loss

66:05 prevention and the impact noise can have on your

66:06 hearing if it is -- if you are not wearing hearing

66:07 protection.

66:08 - 66:11 Gates, Kathy 2020-05-29 0:15

66:08 Q. Do you recall seeing the "Just the

66:09 Facts" publication during the time you were at the

66:10 working group?

66:11 A. I don't remember.

67:06 - 67:18 Gates, Kathy 2020-05-29 1:33

67:06 Q. (BY MR. MORRISS:) So let me correct Re: [67:06 to 68:24] OVERRULED

67:07 that. So what you have now in front of you, Tab 4, Pltf Obj 602, 611, 802,

67:08 is Exhibit 9. foundation, 403 (undue delay,

67:09 A. Okay. waste of time, needless

67:10 Q. Is this one of the "Just the Facts" presentation of cumulative

67:11 publications that we talked about earlier? evidence)

67:12 A. Yes.

67:13 Q. Is it, again, on a USACHPPM

67:14 letterhead?

67:15 A. Yes, that is correct.

67:16 Q. Okay. And is it styled "Just the

67:17 Facts...The Combat Arms Earplug"?

67:18 A. It is.

67:19 - 68:07 Gates, Kathy 2020-05-29 1:33

67:19 Q. And does this provide information Re: [67:06 to 68:24] OVERRULED

67:20 about the Combat Arms dual-ended plug? Pltf Obj 602, 611, 802,

67:21 A. Yes, it does. foundation, 403 (undue delay,

67:22 Q. And if you will flip over to the waste of time, needless

67:23 second page, does it have a section entitled "User presentation of cumulative

67:24 Tips"? evidence)

67:25 A. Yes, it does.

68:01 Q. And under the first bullet point,

68:02 does it state that the earplug should be properly

68:03 inserted?

68:04 A. The first bullet point?

68:05 Q. If you look at the second bullet

68:06 point, it says --

68:07 A. Oh.

68:08 - 68:15 Gates, Kathy 2020-05-29 0:21

68:08 Q. -- "Like any earplug, it is essential Re: [67:06 to 68:24] OVERRULED

68:09 that the Combat Arms Earplug be properly inserted." Pltf Obj 602, 611, 802,

68:10 A. Yes, that is correct. I see that. foundation, 403 (undue delay,

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 13 of 102
68:11 Q. And then if you go to the next bullet waste of time, needless

68:12 point, which would be the third one in the presentation of cumulative

68:13 document, it says, "For exceptionally large ear evidence)

68:14 canals, fold the opposing plug back to enhance

68:15 proper insertion."

68:16 - 68:19 Gates, Kathy 2020-05-29 0:09

68:16 A. Yes, I see that. Re: [67:06 to 68:24] OVERRULED

68:17 Q. So this is instructions about the Pltf Obj 602, 611, 802,

68:18 Combat Arms Earplug coming from USACHPPM, correct? foundation, 403 (undue delay,

68:19 A. Yes, sir, that is correct. waste of time, needless

presentation of cumulative

evidence)

68:20 - 68:24 Gates, Kathy 2020-05-29 0:14

68:20 Q. And it is your understanding that Re: [67:06 to 68:24]

68:21 these documents would be distributed among the Pltf Obj 602, 611, 802,

68:22 audiology community and among general military foundation, 403 (undue delay,

68:23 personnel, correct? waste of time, needless

68:24 A. Yes. presentation of cumulative

evidence)

68:25 - 69:04 Gates, Kathy 2020-05-29 0:14

68:25 Q. Do you know whether you had any

69:01 involvement in reviewing or preparing that

69:02 particular document?

69:03 A. I am -- I am just familiar with the

69:04 document, but I didn't write it.

69:09 - 69:14 Gates, Kathy 2020-05-29 0:18

69:09 Q. (BY MR. MORRISS:) Well, let me ask Re: [69:09 to 69:14] SUSTAINED

69:10 it again. Do you know where the language about how Pltf Obj 602, 802, foundation,

69:11 to insert the plug, and specifically Bullet Point 403 (undue delay, waste of

69:12 Number 3 about folding the opposing plug back to time, needless presentation of

69:13 enhance proper insertion, do you know where CHPPM cumulative evidence),

69:14 got that information? misstates the document

69:16 - 69:17 Gates, Kathy 2020-05-29 0:06

69:16 A. I think it came from the hearing Re: [69:16 to 69:17] SUSTAINED

69:17 conservation office at CHPPM. Pltf Obj 602, 802, foundation,

403 (undue delay, waste of

time, needless presentation of

cumulative evidence),

misstates the document

69:18 - 69:20 Gates, Kathy 2020-05-29 0:09

69:18 Q. (BY MR. MORRISS:) Do you know where

69:19 they sort of came to the conclusion that folding

69:20 back the flange might aid in proper insertion?

69:22 - 69:22 Gates, Kathy 2020-05-29 0:07

69:22 A. I don't know.

70:17 - 71:03 Gates, Kathy 2020-05-29 1:41

70:17 Q. We talked a little bit about slide Re: [70:17 to 71:03] OVERRULED

70:18 presentations. Do you know Lt. Merkley? Pltf Obj 602, 403 (undue

70:19 A. Yes, I do. delay, waste of time, needless

70:20 Q. In 2002, would you have had any presentation of cumulative

70:21 occasion to work with him? evidence), improper comment on

70:22 A. No. credibility of another witness

70:23 Q. Do you know whether he was a person

70:24 in that early 2000 time frame that would have had

70:25 responsibility for presenting training to

71:01 audiologists and other personnel about how to fit

71:02 earplugs?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 14 of 102
71:03 A. I believe so, he would have.

71:14 - 72:03 Gates, Kathy 2020-05-29 1:46

71:14 Q. All right. Okay. Let me ask it Re: [71:14 to 72:03] SUSTAINED

71:15 again. Would Lt. Merkley in the early 2000s have Pltf Obj 602, 403 (undue

71:16 been in a position where he would have been delay, waste of time, needless

71:17 providing training to audiologists and others about presentation of cumulative

71:18 hearing protection devices? evidence), improper comment on

71:19 A. Yes. credibility of another witness

71:20 Q. Have you since seen his testimony as

71:21 it relates to the training on the proper insertion Re: [71:24 to 72:03] SUSTAINED

71:22 of the Combat Arms earplug? Pltf Obj 611

71:23 A. I looked at it, yes.

71:24 Q. All right. And do you recall that

71:25 his recollection was that he communicated to

72:01 military personnel that one of the fitting tips was

72:02 to roll back the flange to get proper insertion; do

72:03 you recall that?

72:06 - 72:06 Gates, Kathy 2020-05-29 0:00

72:06 A. Yes. Re: [72:06 to 72:06] SUSTAINED

Pltf Obj 602, 611, 403 (undue

delay, waste of time, needless

presentation of cumulative

evidence), improper comment on

credibility of another witness

73:25 - 75:19 Gates, Kathy 2020-05-29 2:41

73:25 (Whereupon, the following video clip Re: [73:25 to 75:19] OVERRULED

74:01 was played from the deposition Pltf Obj 602, 611, 403 (undue

74:02 testimony of Lt. Col. John Merkley, delay, waste of time, needless

74:03 February 26, 2020.) presentation of cumulative

74:04 Q. "(BY MR. WASDIN:) You mentioned that evidence), improper comment on

74:05 in your conversations with Doug Ohlin regarding credibility of another witness

74:06 instructions that you discussed the wallet card

74:07 with him on those occasions, did I remember that? Re: [75:03 to 75:19] OVERRULED

74:08 A. Right. Pltf Obj 802, MIL G5

74:09 Q. Okay.

74:10 A. Now, I -- I want to make it clear,

74:11 this -- these wasn't necessarily one-on-one

74:12 discussions, but discussions at a -- at a meeting

74:13 with a group.

74:14 Q. Okay. Who were the people that were

74:15 in the group?

74:16 A. It would have been military

74:17 audiologists.

74:18 Q. Like yourself that were the head of

74:19 some program --

74:20 A. Um-hum.

74:21 Q. -- at a different installation?

74:22 A. Right.

74:23 Q. Okay. If you look at the wallet

74:24 card, beside the pictures, there is an image on the

74:25 right of the plug with the flange folded back on

75:01 the opposite end?

75:02 A. Correct.

75:03 Q. Did you ever discuss whether or not

75:04 to fold the flanges back on the opposite end of the

75:05 plug with Doug Ohlin?

75:06 A. I remember Doug Ohlin giving us

75:07 instruction on how to fit the earplug.

75:08 Q. What did he say?

75:09 A. And he -- he said if you have --

75:10 well, I don't remember his exact words, but I

75:11 remember, you know, if you needed to, you could

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 15 of 102
75:12 fold back the flange on the earplug to get a good

75:13 fit.

75:14 Q. And so, Doug Ohlin was telling the

75:15 program managers at the various installations in

75:16 the country that if they needed to fold back the

75:17 flanges on one side of the plug, they could do so

75:18 to get a good fit?

75:19 A. Yes."

75:22 - 75:24 Gates, Kathy 2020-05-29 0:10

75:22 Q. (BY MR. MORRISS:) And is this the Re: [75:22 to 75:24] SUSTAINED

75:23 testimony that you had read earlier, Col. Gates? Pltf Obj 602, 611, 403 (undue

75:24 A. Yes. delay, waste of time, needless

presentation of cumulative

evidence), improper comment on

credibility of another

witness, prohibited by Touhy,

calls for speculation

76:23 - 77:05 Gates, Kathy 2020-05-29 0:18

76:23 Q. Would Lt. Merkley have been in the Re: [76:23 to 77:05] SUSTAINED

76:24 early 2000 time frame someone knowledgeable about Pltf Obj 602, 611, 403 (undue

76:25 information concerning hearing protection devices delay, waste of time, needless

77:01 and how to properly insert them? presentation of cumulative

77:02 A. Sure, yes. evidence), improper comment on

77:03 Q. And you have no reason to doubt the credibility of another

77:04 testimony that he has given in this case; is that witness, prohibited by Touhy,

77:05 true? calls for speculation

77:07 - 77:07 Gates, Kathy 2020-05-29 0:00

77:07 A. That's true. Re: [77:07 to 77:07] SUSTAINED

Pltf Obj 602, 611, 403 (undue

delay, waste of time, needless

presentation of cumulative

evidence), improper comment on

credibility of another

witness, prohibited by Touhy,

calls for speculation

77:13 - 78:06 Gates, Kathy 2020-05-29 1:52

77:13 Q. Do you know Eric Fallon? Re: [77:13 to 78:19] OVERRULED

77:14 A. I do. Pltf Obj 402, 602, 403 (undue

77:15 Q. Was Eric Fallon someone who at delay, waste of time, needless

77:16 various points in time would have had presentation of cumulative

77:17 responsibility for providing training about hearing evidence), improper comment on

77:18 protection devices? credibility of another

77:19 A. Yes. witness, calls for speculation

77:20 Q. Do you know what time frame he would

77:21 have been involved in that role, where he would

77:22 have been making presentations on how to fit a

77:23 hearing protection device?

77:24 A. When he was at CHPPM in, I think,

77:25 2004 or '5 time frame.

78:01 Q. And would you defer to him about what

78:02 materials in that time frame would have been used

78:03 to train audiologists and others about how to fit

78:04 the Combat Arms Version 2 plug?

78:05 A. Yes. That was his lane of

78:06 responsibility at CHPPM.

78:07 - 78:19 Gates, Kathy 2020-05-29 1:32

78:07 Q. And he worked for you at some point Re: [77:13 to 78:19] SUSTAINED

78:08 in time; did he not? Pltf Obj 402, 602, 403 (undue

78:09 A. He was kind of a special projects delay, waste of time, needless

78:10 officer and worked with me. But I was never in his presentation of cumulative

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 16 of 102
78:11 rating chain or anything. evidence), improper comment on

78:12 Q. But you had -- credibility of another

78:13 A. Yes. witness, calls for speculation

78:14 Q. You had significant interaction with

78:15 him at various points in time?

78:16 A. Yes.

78:17 Q. Found him to be reliable and

78:18 dependable?

78:19 A. Yes.

79:02 - 79:08 Gates, Kathy 2020-05-29 0:21

79:02 Q. Is it fair to say that earplugs

79:03 loosen during normal activities?

79:04 A. Yes.

79:05 Q. And is it fair to say that

79:06 preformed -- all preformed earplugs can loosen from

79:07 chewing or walking or any sort of activity at all?

79:08 A. Yes, that is correct.

80:16 - 81:09 Gates, Kathy 2020-05-29 1:02

80:16 Q. (BY MR. MORRISS:) So Exhibit 3 is

80:17 the Department of Defense Instruction that would

80:18 guide military branches on their hearing

80:19 conservation programs, correct?

80:20 A. Right. What I -- what I am seeing

80:21 right now is Exhibit 6 [sic]. I am seeing -- I see

80:22 here "Earplugs: General Information."

80:23 MR. MORRISS: So go to the front page

80:24 of this document first, Will.

80:25 Q. (BY MR. MORRISS:) Okay. So this is

81:01 Exhibit Number 3. And it is the Department of

81:02 Defense Instruction, correct?

81:03 A. Yes.

81:04 Q. And this is what we talked about

81:05 earlier, right?

81:06 A. Right.

81:07 Q. If you will turn over in that

81:08 document to Page 25, it has something called "E6.

81:09 Enclosure 6"; is that correct?

81:10 - 82:07 Gates, Kathy 2020-05-29 1:04

81:10 A. I -- I just don't recall seeing that

81:11 in the DoDI, but I --

81:12 Q. And if you actually look at the top

81:13 right-hand corner of that very document, it says,

81:14 "DoDI 6055.2, April 12, '96" [sic]?

81:15 A. Okay.

81:16 Q. Okay. So this is in the -- this is

81:17 in the Department of Defense document, correct?

81:18 A. Yes.

81:19 Q. Okay. And I don't think this is

81:20 controversial. The DoD points out in Item Number 3

81:21 that earplugs tend to work loose as a result of

81:22 talking and even just chewing gum and must be

81:23 reseated, correct?

81:24 A. That's correct, yes.

81:25 Q. That is consistent with the Army

82:01 hearing conservation's own program as it relates to

82:02 all earplugs, including premolded plugs?

82:03 A. Yes.

82:04 Q. And it would be consistent with your

82:05 personal understanding of how hearing protection

82:06 devices work?

82:07 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 17 of 102
82:15 - 83:02 Gates, Kathy 2020-05-29 1:34

82:15 Q. (BY MR. MORRISS:) Well, let me

82:16 rephrase it. Have you instructed soldiers on how

82:17 to tell when a plug is loose and it has got to be

82:18 reseated?

82:19 A. Yes. Yes.

82:20 Q. And this is -- things you would tell

82:21 them is that you can hear more once the seal

82:22 breaks?

82:23 A. Yes.

82:24 Q. And so one of the cues is just the

82:25 noise is either existent or louder than if the seal

83:01 is properly inserted and is working?

83:02 A. That's correct, yes.

83:03 - 84:05 Gates, Kathy 2020-05-29 2:33

83:03 Q. Did you personally use the Combat

83:04 Arms Version 2?

83:05 A. I don't -- I believe I used the first

83:06 version of the dual-ended plug. I don't recall

83:07 using the -- the -- the second version.

83:08 Q. So that -- so let's talk about that a

83:09 little bit. So do you recall there being more than

83:10 one version of the dual-ended plug?

83:11 A. I do.

83:12 Q. Actually -- pardon?

83:13 A. Yes, I do recall there were two

83:14 versions of the dual-ended plug.

83:15 Q. Do you recall the first version,

83:16 whether it was actually distributed to the

83:17 military?

83:18 A. Yes.

83:19 Q. Okay. And what was different between

83:20 the first version and the second version, as you

83:21 recall?

83:22 A. As I recall, based on feedback from

83:23 soldiers using the earplug, they were having a

83:24 difficult time using the earplug with their Kevlar.

83:25 And so I believe the earplug was modified to allow

84:01 them to have more comfort when using the Combat

84:02 Arms earplug when wearing Kevlar.

84:03 Q. And you think you used the version of

84:04 the plug before it was shortened?

84:05 A. Yes.

84:11 - 85:01 Gates, Kathy 2020-05-29 1:12

84:11 Q. (BY MR. MORRISS:) So you just tell

84:12 me sort of what you recall about the Combat Arms

84:13 Version 2 plug -- excuse me. Let me strike that.

84:14 When do you recall the first version

84:15 of the dual-ended plug coming out?

84:16 A. It was -- gosh, it was part of a DoD

84:17 Hearing Conservation Working Group meeting, and the

84:18 plug was introduced to the working group members.

84:19 And we were all given a pair of the Combat Arms

84:20 Earplugs, the dual-ended earplug. And I had an

84:21 opportunity to experiment with that earplug.

84:22 Q. And do you recall how long after that

84:23 that the plug was shortened and the Version 2 came

84:24 out?

84:25 A. I -- I think it was shortly after

85:01 that, based on feedback from the field.

85:07 - 85:11 Gates, Kathy 2020-05-29 0:09

85:07 Q. Do you recall after leaving the

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 18 of 102
85:08 working group that you had an occasion to use the

85:09 Combat Arms Earplug, either first version or second

85:10 version?

85:11 A. No.

85:12 - 86:05 Gates, Kathy 2020-05-29 1:59

85:12 Q. Do you recall any communications with Re: [85:12 to 85:20] SUSTAINED

85:13 Doug Ohlin about whether or not you could wear the Pltf Obj 402, 802, compound,

85:14 plug and whether it worked for you? MIL G3 (argument that gov't

85:15 A. I don't recall any conversations. I had responsibility for

85:16 do recall that -- reading an email in the book that design/label), MIL G7 (lay

85:17 he sent me the newer version of the Combat Arms opinion on the efficacy of

85:18 Earplug because he had me confused with someone CAEv2)

85:19 else. Because I had never had problems with the

85:20 earplug, inserting the earplug, but yes. Re: [85:21 to 86:24] SUSTAINED - 402, 403

85:21 Q. So the version of the plug that you Pltf Obj 402, 403, MIL G7 (lay

85:22 used in whatever time frame, did it work for you? opinion on the efficacy of

85:23 A. It did. CAEv2)

85:24 Q. Did you use both ends of the plug?

85:25 A. Yes. Re: [86:01 to 86:24] SUSTAINED

86:01 Q. Did it fit properly for you? Pltf Obj 702

86:02 A. Yes, it did.

86:03 Q. Did you need to roll back the flange

86:04 in order for the plug to fit for you?

86:05 A. No, I did not.

86:06 - 86:09 Gates, Kathy 2020-05-29 0:14

86:06 Q. Did you use the plug in a noise Re: [85:21 to 86:24] SUSTAINED

86:07 environment so that you could tell whether it was Pltf Obj 402, 403, MIL G7 (lay

86:08 attenuating noise or working? opinion on the efficacy of

86:09 A. Yes, I did it at a weapons range. CAEv2)

Re: [86:01 to 86:24] SUSTAINED

Pltf Obj 702

86:08 - 86:13 Gates, Kathy 2020-05-29 0:20

86:08 attenuating noise or working? Re: [85:21 to 86:24] SUSTAINED

86:09 A. Yes, I did it at a weapons range. Pltf Obj 402, 403, MIL G7 (lay

86:10 Q. And do you recall on how many opinion on the efficacy of

86:11 different occasions you utilized the plug in a CAEv2)

86:12 setting where there was noise?

86:13 A. Maybe a couple times. Re: [86:01 to 86:24] SUSTAINED

Pltf Obj 702

86:14 - 86:24 Gates, Kathy 2020-05-29 1:34

86:14 Q. And at least on each of the occasions Re: [85:21 to 86:24] SUSTAINED

86:15 that you used the plug in a noisy environment, it Pltf Obj 402, 403, MIL G7 (lay

86:16 both fit -- opinion on the efficacy of

86:17 A. I missed the last word you said. CAEv2)

86:18 Q. Sure. On the two occasions that you

86:19 used the plug, on both of those occasions, the Re: [86:01 to 86:24] SUSTAINED

86:20 plug -- you were able to get a good fit? Pltf Obj 702

86:21 A. Yes, I was.

86:22 Q. And the plug worked on both occasion

86:23 at attenuating noise for you?

86:24 A. Yes, it did.

87:13 - 87:17 Gates, Kathy 2020-05-29 0:20

87:13 Q. During your tenure, did you ever Re: [87:13 to 88:02] SUSTAINED

87:14 collect information about whether the Combat Arms Pltf Obj 402, 403 (more

87:15 Earplugs were working in the field? prejudicial than probative),

87:16 A. Yes, I did. 802, lacks foundation

87:17 Q. And tell me about it.

87:18 - 88:02 Gates, Kathy 2020-05-29 1:37

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 19 of 102
87:18 A. I -- it was -- it was around 2005, Re: [87:13 to 88:02] SUSTAINED

87:19 maybe. I was at the Surgeon General's Office and Pltf Obj 402, 403 (more

87:20 was trying to gather feedback from the field about prejudicial than probative),

87:21 success stories regarding the wear of the Combat 802, lacks foundation

87:22 Arms Earplug.

87:23 And I do recall getting information

87:24 from Fort Polk and DePakaris's response and also

87:25 Capt. Jillyen Curry in Fort Stewart. And they had

88:01 positive feedback. They conducted surveys and

88:02 shared that information with me.

88:03 - 88:11 Gates, Kathy 2020-05-29 0:27

88:03 Q. And was the positive feedback

88:04 specific to the Combat earplug Version 2 dual-ended

88:05 plug?

88:06 A. That I do not know. I am not -- I am

88:07 not certain.

88:08 Q. Do you know which plugs the various

88:09 installations were using that were responding to

88:10 your inquiries?

88:11 A. I don't. I'm sorry. I don't recall.

89:17 - 89:23 Gates, Kathy 2020-05-29 1:34

89:17 Q. Can you tell whether that is -- which

89:18 version of the Combat Arms Earplug that pertains

89:19 to?

89:20 A. I can't tell. It is dated 2006, so I

89:21 guess it -- depending on what version was available

89:22 at that time. I don't recall if it were the Combat

89:23 Version 2 or not.

89:24 - 90:04 Gates, Kathy 2020-05-29 0:18

89:24 Q. So the general feedback that you got Re: [89:24 to 91:05] SUSTAINED

89:25 was favorable, but you don't at this point know one Pltf Obj 402, 403 (more

90:01 way or the other whether it was specific to Version prejudicial than probative),

90:02 2 or some of the other versions of the plug? 802, lacks foundation

90:03 A. That is correct. I believe it was

90:04 the dual-ended earplug, though.

90:05 - 91:05 Gates, Kathy 2020-05-29 1:16

90:05 Q. Pardon? Re: [89:24 to 91:05] SUSTAINED

90:06 A. I do believe that it was the Pltf Obj 402, 403 (more

90:07 dual-ended earplug. prejudicial than probative),

90:08 Q. Okay. So let's -- let me back up and 802, lacks foundation

90:09 make sure I understand. So you collected survey

90:10 information from various military sources; is that

90:11 correct?

90:12 A. Yes.

90:13 Q. And the information you received back

90:14 from the field was favorable as it relates to the

90:15 Combat Arms Earplug, true?

90:16 A. That's correct, yes.

90:17 Q. And you believe that the -- this

90:18 information was dated somewhere in the 2006 time

90:19 frame?

90:20 A. Yes, that is correct.

90:21 Q. And you are certain that it was the

90:22 dual-ended plug?

90:23 A. I believe so, yes.

90:24 Q. At least the information that you

90:25 received in 2006 about the military's use of the

91:01 Combat Arms Version 2 dual-ended plug was

91:02 favorable, in that it was -- at least the reports

91:03 were that it was working?

91:04 A. According to the survey information,

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 20 of 102
91:05 yes.

91:22 - 92:18 Gates, Kathy 2020-05-29 2:30

91:22 Q. If you will go to Tab 39, which I

91:23 think is Exhibit 4. And this is the Hearing

91:24 Conservation Program of December 1998, correct?

91:25 A. Yes, that is correct.

92:01 Q. If you will go to the Section 6.2(d).

92:02 And there's a section that says, "Combat scenarios.

92:03 In combat, soldiers." Do you see that?

92:04 A. Yes, I do see that.

92:05 Q. And if you go over to the next

92:06 column, Number 2, it says, "Should not wear hearing

92:07 protectors when they impair necessary hearing, for

92:08 example, with dismounted infantry operations." See

92:09 that?

92:10 A. I see that, yes.

92:11 Q. So the Army's regulation in its

92:12 Hearing Conservation Program in '98 and up through

92:13 2015 said if a soldier believed using a hearing

92:14 protection device would impair their ability to

92:15 hear in combat settings, they were not to wear

92:16 protection, correct?

92:17 A. That is what is in the regulation, in

92:18 the DA PAM.

92:19 - 92:22 Gates, Kathy 2020-05-29 0:12

92:19 Q. And was it your experience that, in

92:20 fact, combat soldiers were reluctant to wear

92:21 hearing protection devices in situations where they

92:22 needed to hear commands in combat settings?

93:02 - 93:04 Gates, Kathy 2020-05-29 0:19

93:02 A. Anecdotal information from the field,

93:03 with the Combat Arms Earplug, soldiers would wear

93:04 the earplug and -- in the operational settings.

93:18 - 94:11 Gates, Kathy 2020-05-29 1:13

93:18 Q. Okay. But my question is a little

93:19 different. For the -- for the general infantryman

93:20 or -woman who was in the field, was there sort of

93:21 an earplug that was commonly distributed that would

93:22 provide protection from impulse noise but allow the

93:23 soldier to hear commands and low-level sounds?

93:24 A. Not that I am aware of.

93:25 Q. So at least in that '96, '97, '98

94:01 time frame, a soldier in combat would have the

94:02 choice of either wearing hearing protection that

94:03 would impair communication and ability to hear

94:04 orders and things of that nature or not have

94:05 protection at all?

94:06 A. Yes.

94:07 Q. Is that one of the reasons that the

94:08 DoD working group began looking at the potential of

94:09 developing what is called a nonlinear plug?

94:10 A. Something, yes, for the dismounted

94:11 operations for soldiers and Marines.

116:12 - 117:13 Gates, Kathy 2020-05-29 1:27

116:12 Q. Do you remember at some point Re: [116:21 to 117:13] SUSTAINED

116:13 receiving production samples, the first production Pltf Obj 602, 611, 802, MIL G3

116:14 samples of the Combat Arms dual-ended plug? (argument that gov't had

116:15 A. I do. I -- I -- I believe they were responsibility for

116:16 handed out during a working group meeting to the design/label), MIL G5

116:17 members. (attributing personal gov't

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 21 of 102
116:18 Q. Is that the first version of the plug agent position to gov't),

116:19 that you would have used? foundation

116:20 A. Yes, that is correct.

116:21 Q. And then, do you recall at some point

116:22 after the samples were handed out, that there was a

116:23 discussion with Ohlin and others about

116:24 modifications that needed to be made to the plug?

116:25 A. I wasn't directly involved with those

117:01 conversations, no.

117:02 Q. I just want to make sure I understand

117:03 the answer. So, whether you were involved, do you

117:04 recall being present when Ohlin or anyone else

117:05 discussed changes that they wanted to see made to

117:06 the plug?

117:07 A. I do recall conversations based on

117:08 feedback from soldiers about the issue regarding

117:09 the insertion of the Combat Arms dual plug while

117:10 wearing the Kevlar. And I do recall discussions

117:11 about trying to shorten it so that it would fit

117:12 better in -- under the Kevlar and in the earplug

117:13 case.

117:20 - 120:01 Gates, Kathy 2020-05-29 4:34

117:20 Q. Let me show you -- let's go to Tab Re: [117:20 to 120:01] SUSTAINED - 802 in part

117:21 44, which I think is Exhibit 13. Pltf Obj 802, 602, 611,

117:22 (Exhibit 13 was marked for foundation, 403, MIL G3

117:23 identification.) (argument that gov't had

117:24 A. Okay. Yes, I see it. responsibility for

117:25 Q. (BY MR. MORRISS:) The second page, design/label), MIL G5

118:01 which is an email from -- (attributing personal gov't

118:02 A. Oh, okay. agent position to gov't)

118:03 Q. -- Doug Ohlin. And do you know Wayne

118:04 Loyborg?

118:05 A. He is an audiologist, yes.

118:06 Q. Is he a military audiologist?

118:07 A. I believe he is civilian. Yes,

118:08 civilian audiologist working over in Europe.

118:09 Q. But for the military?

118:10 A. Can you repeat that?

118:11 Q. Sure. He was a civilian audiologist,

118:12 but was he working for the military?

118:13 A. Yes, that is correct.

118:14 Q. And then how about Lt. David

118:15 Chandler, Lt. Col. David Chandler?

118:16 A. Yes, I know him very well.

118:17 Q. Who is he?

118:18 A. He -- he is a retired Army

118:19 audiologist. And I worked for him when I served as

118:20 the deputy director at Walter Reed. He was my

118:21 boss. He was the director at Walter Reed. And

118:22 prior to taking over the position as audiology

118:23 consultant to the surgeon general, he filled that

118:24 position before me.

118:25 Q. So Ohlin just makes the statement

119:01 that he took the liberty in cutting down the

119:02 samples and sending them under separate cover. Do

119:03 you have a recollection looking at this? Does it

119:04 refresh your recollection that Dr. Ohlin physically

119:05 cut down any of these samples that were received?

119:06 A. Again, I may have overheard something

119:07 to that fact, but I -- based on office

119:08 conversations, maybe. But I wasn't part of that

119:09 effort.

119:10 Q. But you don't remember seeing him

119:11 physically cut the plug down, put it back together?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 22 of 102
119:12 A. No.

119:13 Q. That was just something outside your

119:14 particular area of interest and expertise?

119:15 A. Yes, that is correct.

119:16 Q. After sort of this proclamation by

119:17 Ohlin that the plug was too long, do you recall

119:18 receiving shortly after that samples that had been

119:19 modified by the manufacturer that met Ohlin's

119:20 requirements?

119:21 A. I don't recall receiving them, but I

119:22 do know that they were, you know, re -- reproduced

119:23 or re -- you know, redone to make them a little bit

119:24 shorter so they would fit in the earplug case and

119:25 under the Kevlar. So I probably did receive the

120:01 revised -- the revision of the earplug.

120:05 - 120:19 Gates, Kathy 2020-05-29 1:00

120:05 Q. Okay. Look at the page on Exhibit Re: [120:05 to 120:19] SUSTAINED

120:06 13 -- so the email we were originally looking at Pltf Obj 802, 602, 611,

120:07 was dated April 13th, '99. If you go to the next foundation, 403, MIL G3

120:08 page, there's an email dated May 12th, 1999, so a (argument that gov't had

120:09 couple of months later. Dr. Ohlin reports that responsibility for

120:10 "the manufacturer, Aearo, got back to us with design/label), MIL G5

120:11 acceptable production samples." Does your (attributing personal gov't

120:12 recollection sort of match that, that within a agent position to gov't)

120:13 couple of months of the first samples coming in, or

120:14 at least a couple of months of when Dr. Ohlin

120:15 reported that they were too long, that samples came

120:16 in from the manufacturer that were acceptable to

120:17 him?

120:18 A. I recall that that is possible, yes.

120:19 He was very involved with that project.

121:01 - 121:07 Gates, Kathy 2020-05-29 0:20

121:01 Q. Was Doug Ohlin from the Re: [121:01 to 121:07] OVERRLED

121:02 DoD working group side the person that took, sort Pltf Obj 611, foundation,

121:03 of, the primary interest and focus in the calls for speculation, vague

121:04 non-linear earplug? (as to primary interest and

121:05 A. I would say so, yes. He was the focus)

121:06 chair of the DoD Hearing Conservation Working

121:07 Group, so, yes.

125:19 - 126:03 Gates, Kathy 2020-05-29 1:30

125:19 Q. (BY MR. MORRISS:) So Col. Gates, we Re: [125:19 to 126:03] OVERRULED

125:20 were talking about Exhibit 14. And I'm not quite Pltf Obj 802, 602, foundation,

125:21 sure where we cut off, but I had just asked you, 403, calls for speculation 

125:22 sort of, what role you were playing at this point

125:23 in March of 2005?

125:24 A. Oh, that is right. Yes. I was a

125:25 staff officer at the Proponency Office for

126:01 Preventive Medicine at the Surgeon General's

126:02 Office. And I think that Dr. Ohlin cc'd me just to

126:03 keep me in the loop.

126:14 - 127:11 Gates, Kathy 2020-05-29 1:08

126:14 Q. (BY MR. MORRISS:) So you think this Re: [126:14 to 128:16] SUSTAINED

126:15 was just for informational purposes only in terms Pltf Obj 802, 602, foundation,

126:16 of why you would have been copied on this? 403, calls for speculation 

126:17 A. Oh, yeah. Uh-huh. Because the

126:18 Proponency Office for Preventive Medicine was the

126:19 staff office that CHPPM would share information

126:20 with to get information through the Surgeon

126:21 General's Office and getting staff actions

126:22 developed and created.

126:23 Q. Did you play any substantive role in

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 23 of 102
126:24 the response about whether it would be appropriate

126:25 to make the statement that the Combat Arms Earplug

127:01 was evaluated and specified by the U.S. Armed

127:02 Forces?

127:03 A. No. I -- I didn't. Kind of outside

127:04 my area.

127:05 Q. You did not have a view about that

127:06 and it was outside your area of interest and

127:07 expertise?

127:08 A. Correct.

127:09 Q. It would have been in the area of

127:10 expertise of Doug Ohlin; is that correct?

127:11 A. Yes.

127:12 - 128:12 Gates, Kathy 2020-05-29 1:15

127:12 Q. And Mr. Ohlin responded that, in the Re: [126:14 to 128:16] SUSTAINED - 802

127:13 last sentence of that first paragraph, "Yes, I Pltf Obj 802, 602, foundation,

127:14 think you can say the Combat Arms Earplug has," it 403, calls for speculation 

127:15 says "be," "evaluated and specified by the U.S.

127:16 Armed Forces," correct?

127:17 A. I see that, yes.

127:18 Q. Mr. Ohlin's response to the question?

127:19 A. That is his response, yes.

127:20 Q. If you look at the very first

127:21 sentence in this exhibit, it says that "the Combat

127:22 Arms Earplug has been evaluated during blast

127:23 overpressure studies at White Sands Missile Range

127:24 and at the Army Research Lab at the Aberdeen

127:25 Proving Ground." Do you know what studies Doug

128:01 Ohlin is referring to when he references

128:02 overpressure studies?

128:03 A. No, I don't.

128:04 Q. Do you know whether it is the

128:05 overpressure study that we discussed earlier that

128:06 was performed in 1995 by the military?

128:07 A. That is possible, yes.

128:08 Q. Any research that would have been

128:09 performed at the Army Research Lab at the Aberdeen

128:10 Proving Ground, that would have been a military

128:11 study, correct?

128:12 A. Yes, that is correct.

128:13 - 128:16 Gates, Kathy 2020-05-29 0:12

128:13 Q. Doug Ohlin is saying that whatever Re: [126:14 to 128:16] SUSTAINED

128:14 this study was that was done by the military, it Pltf Obj 802, 602, foundation,

128:15 was an evaluation of the Combat Arms Earplug, 403, calls for speculation 

128:16 correct?

Re: [128:13 to 128:16] SUSTAINED

Pltf Obj 602, 611,

argumentative, calls for

speculation, incomplete

designation

128:18 - 129:24 Gates, Kathy 2020-05-29 2:42

128:18 Q. (BY MR. MORRISS:) Was Doug Ohlin a Re: [129:09 to 129:24] OVERRULED

128:19 decision-maker in the DoD working group arena? Pltf Obj 802, 602, foundation,

128:20 A. Yes. He was the chair of the working 403, calls for speculation 

128:21 group.

128:22 Q. Do you know whether he was involved Re: [129:09 to 129:20] SUSTAINED

128:23 in other hearing protection devices besides the Pltf Obj 402, 602, 611, calls

128:24 Combat Arms Earplug Version 2? for speculation,

128:25 A. The -- the future generations of the argumentative, 403 (more

129:01 Combat Arms Earplugs, yes. prejudicial than probative),

129:02 Q. All right, fair point. Do you know improper comment on witness

129:03 whether he was involved in the evaluation of credibility

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 24 of 102
129:04 earplugs other than the Combat Arms series?

129:05 A. In his role as the CHPPM Hearing

129:06 Conservation Program manager, he did get involved

129:07 in other aspects of hearing protection, not just

129:08 the Combat Arms Earplug.

129:09 Q. In the working group, was there

129:10 anyone more knowledgeable about hearing protection

129:11 devices other than Doug Ohlin?

129:12 A. I -- I don't have the answer to that.

129:13 Q. That same question, outside the

129:14 working group, within the military, were there

129:15 others that had more, sort of, expertise and

129:16 knowledge about hearing protection devices besides

129:17 Doug Ohlin that you know of?

129:18 A. I -- I don't know. I just know that

129:19 Dr. Ohlin was very knowledgeable about hearing

129:20 protection.

129:21 Q. And was hands-on in the working

129:22 group, at least as it related to the Combat Arms

129:23 Earplug?

129:24 A. Yes.

133:06 - 133:10 Gates, Kathy 2020-05-29 0:23

133:06 Q. So, just to confirm, if we go to Re: [133:06 to 133:10] SUSTAINED

133:07 Exhibit 6 -- excuse me, Tab 46, which will be Pltf Obj 802, 602, calls for

133:08 Exhibit 16 -- speculation, calls for expert

133:09 (Exhibit 16 was marked for testimony from a non-expert,

133:10 identification.) foundation

133:15 - 133:18 Gates, Kathy 2020-05-29 0:10

133:15 Q. (BY MR. MORRISS:) Col. Gates, do you Re: [133:15 to 133:18] SUSTAINED

133:16 have in front of you Exhibit 15? Pltf Obj 802, 602, calls for

133:17 A. The only thing I see is, "Document speculation, calls for expert

133:18 was provided in native format upon request." testimony from a non-expert,

foundation

133:24 - 134:04 Gates, Kathy 2020-05-29 0:22

133:24 Q. (BY MR. MORRISS:) Okay. Is this Re: [133:24 to 134:04] SUSTAINED

133:25 anything you have ever seen before? Pltf Obj 802, 602, calls for

134:01 A. I -- I believe that this may have speculation, calls for expert

134:02 been presented during one of our military audiology testimony from a non-expert,

134:03 conferences. I believe this is a -- a dissertation foundation

134:04 study conducted by Lt. Col. Lorraine Babeu.

134:05 - 134:22 Gates, Kathy 2020-05-29 1:03

134:05 Q. And -- and what do you understand the

134:06 reason for this study being performed? If you have

134:07 one.

134:08 A. I -- I really don't have a lot of

134:09 background in this, what -- what she was looking

134:10 at.

134:11 Q. Do you have an understanding of how

134:12 the testing was done or her findings?

134:13 A. I haven't really looked at the --

134:14 reviewed the PowerPoint presentation. So I really

134:15 can't comment on that.

134:16 Q. Well, I guess I am trying to figure

134:17 out if this is something that is within your area

134:18 of knowledge and scope. If you looked at the

134:19 PowerPoint presentation, would you be in a position

134:20 to comment on what she did and her findings?

134:21 A. No. I am not -- no, that is kind of

134:22 outside my area. She is a research audiologist.

135:10 - 136:08 Gates, Kathy 2020-05-29 1:28

EXCLUDED based on 

sustained objections

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 25 of 102
135:10 Q. Do you recall approximately when the Re: [135:10 to 136:22] SUSTAINED 

135:11 study was done? Pltf Obj 802, 602, calls for

135:12 A. I -- no, I don't. speculation, calls for expert

135:13 Q. Go to the first page of the document. testimony from a non-expert,

135:14 Do you know when it was presented? That's -- maybe foundation

135:15 that is an easier way.

135:16 A. Oh, when it was presented? I would

135:17 say, maybe in -- around 2005. But, you know, I'm

135:18 not certain.

135:19 Q. Fair. And the testing, whatever it

135:20 consisted of, would have been -- was it done at the

135:21 United States Army Research Lab?

135:22 A. I believe so, yes.

135:23 Q. And whatever the results were, is it

135:24 fair to say that the Combat Arms Version 2 plug

135:25 remained approved by the military and used by the

136:01 military for a period of time many years after this

136:02 2005 presentation?

136:03 A. I would -- I would say the earplug

136:04 was available in the system. However, there were

136:05 newer versions of the Combat Arms Earplug that

136:06 were -- were available later, and probably more

136:07 preferred, because they were sized Combat Arms

136:08 Earplugs that they provided.

136:09 - 136:21 Gates, Kathy 2020-05-29 1:45

136:09 Q. They made -- they made improvements Re: [135:10 to 136:22] SUSTAINED

136:10 to the first version, and as newer, improved Pltf Obj 802, 602, calls for

136:11 versions were issued, fewer soldiers and military speculation, calls for expert

136:12 personnel were using the dual-ended plug; is that testimony from a non-expert,

136:13 correct? foundation

136:14 A. I would -- I would say that with the

136:15 additional earplugs available in the system, I

136:16 would say that they had opportunities to, you know,

136:17 have other earplugs available to them besides the

136:18 dual-ended Combat Arms Earplug.

136:19 Q. But the dual-ended version was still

136:20 available for those who wanted it?

136:21 A. Yes.

222:15 - 222:19 Gates, Kathy 2020-05-29 0:25

222:15 Q. (BY MR. MORRISS:) So let's just make Re: [222:15 to 223:07] SUSTAINED

222:16 sure. So I'm showing you a document that we looked Pltf Obj 602, 802, 611,

222:17 at earlier. This is Exhibit 9. And so one of the foundation, 403 (undue delay,

222:18 things we know is that USACHPPM issued publications waste of time, needless

222:19 called "Just the Facts," right? presentation of cumulative

evidence)

222:20 - 223:07 Gates, Kathy 2020-05-29 1:43

222:20 A. Yes. Re: [222:15 to 223:07] SUSTAINED

222:21 Q. And we know that one of the "Just the Pltf Obj 602, 802, 611,

222:22 Facts" communications that USACHPPM issued foundation, 403 (undue delay,

222:23 concerned the Combat Arms Earplug, true? waste of time, needless

222:24 A. Yes. presentation of cumulative

222:25 Q. And if we go to Page 2, we know for evidence)

223:01 certain that USACHPPM, the United States military,

223:02 included user tips. It said the earplug must be

223:03 properly inserted, and for exceptionally large ear

223:04 canals, fold the opposing plug back to enhance

223:05 proper insertion. That's something we know,

223:06 correct?

223:07 A. Yes.

224:17 - 224:25 Gates, Kathy 2020-05-29 0:22

224:17 Q. (BY MR. MORRISS:) So, Col. Gates, Re: [224:17 to 224:25] SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 26 of 102
224:18 before our technical glitch, we had been discussing Pltf Obj 602, 611, 802,

224:19 the "Just the Facts" CHPPM publication and it foundation, 403 (undue delay,

224:20 talked about the Combat Arms Earplug, right? waste of time, needless

224:21 A. Yes, that's correct. presentation of cumulative

224:22 Q. And we had established that CHPPM evidence)

224:23 understood that folding back the flange was an

224:24 insertion technique and had published about it,

224:25 correct?

225:02 - 225:03 Gates, Kathy 2020-05-29 0:03

225:02 A. Yes, in the "Just the Facts" Re: [225:02 to 225:03] SUSTAINED

225:03 document, yes. Pltf Obj 602, 802, 611,

foundation, 403 (undue delay,

waste of time, needless

presentation of cumulative

evidence)

225:04 - 225:11 Gates, Kathy 2020-05-29 0:15

225:04 Q. (BY MR. MORRISS:) And then the next Re: [225:04 to 225:11] SUSTAINED

225:05 document I wanted you to look at is Exhibit Number Pltf Obj 602, 611, foundation,

225:06 8. And this is the wallet card that we talked 403 (undue delay, waste of

225:07 about earlier, correct? time, needless presentation of

225:08 A. Yes. Uh-huh. cumulative evidence)

225:09 Q. This is also a USACHPPM-generated

225:10 document, true?

225:11 A. That's correct, yes.

225:13 - 226:08 Gates, Kathy 2020-05-29 1:02

225:13 Q. (BY MR. MORRISS:) It has USACHPPM on Re: [225:13 to 226:14] SUSTAINED

225:14 the right bottom of the front sheet, correct? Pltf Obj 602, 611, foundation,

225:15 A. Yes, correct. 403 (undue delay, waste of

225:16 Q. Has a quote on the top of the front time, needless presentation of

225:17 sheet from a soldier in Iraq about the Combat Arms cumulative evidence)

225:18 Earplug?

225:19 A. That's correct, yes.

225:20 Q. Then if we go to the second page of

225:21 the wallet card, do you see that it has

225:22 instructions and information on how to insert the

225:23 Dual-Ended Combat Arms Earplug; is that correct?

225:24 A. Yes, uh-huh.

225:25 Q. We go down to the second bullet point

226:01 below the ear; it has a bullet point that says "For

226:02 very large ear canals, fold opposing plug back,"

226:03 correct?

226:04 A. Correct, yes.

226:05 Q. And then it actually has a picture on

226:06 the wallet card with the flange folded back,

226:07 correct?

226:08 A. Yes. I see that, yes; uh-huh.

226:09 - 226:22 Gates, Kathy 2020-05-29 1:44

226:09 Q. And the idea behind the wallet card Re: [225:13 to 226:14] SUSTAINED

226:10 is that it would be distributed to audiologists and Pltf Obj 602, 611, foundation,

226:11 military personnel and folks doing the fitting to 403 (undue delay, waste of

226:12 understand how to insert the Combat Arms plug, time, needless presentation of

226:13 correct? cumulative evidence)

226:14 A. Yes.

226:15 Q. Now, we also listened today and saw Re: [226:15 to 226:22] SUSTAINED

226:16 today testimony from Lt. Merkley, correct? Pltf Obj 602, 611, foundation,

226:17 A. Yes. 403 (undue delay, waste of

226:18 Q. And if we believe him, he understood time, needless presentation of

226:19 from Doug Ohlin in the early 2000 time frame that cumulative evidence), improper

226:20 folding back the plug was one of the insertion comment on credibility of

226:21 techniques for the dual-ended plug; is that another witness

226:22 correct?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 27 of 102
226:24 - 226:24 Gates, Kathy 2020-05-29 0:03

226:24 A. That is what Lt. Merkley stated, yes. Re: [226:24 to 226:24] SUSTAINED

Pltf Obj 602, 611, foundation,

403 (undue delay, waste of

time, needless presentation of

cumulative evidence), improper

comment on credibility of

another witness

227:05 - 227:15 Gates, Kathy 2020-05-29 0:29

227:05 Q. (BY MR. MORRISS:) We know from Lt. Re: [227:05 to 227:15] SUSTAINED

227:06 Merkley's testimony that in the early 2000s, he Pltf Obj 602, 611, foundation,

227:07 understood that folding back the flange was one of 403 (undue delay, waste of

227:08 the insertion techniques for the Dual-Ended Combat time, needless presentation of

227:09 Arms Earplug, correct? cumulative evidence), improper

227:10 A. Yes, that's correct. comment on credibility of

227:11 Q. And at least if he is to be believed, another witness

227:12 that information came from Doug Ohlin and was

227:13 presented to a large group of the audiology

227:14 community in the military, correct?

227:15 A. Yes.

228:04 - 228:13 Gates, Kathy 2020-05-29 0:28

228:04 MR. THOMAS: Exhibit Number 26. Re: [228:03 to 228:13] SUSTAINED

228:05 (Exhibit 26 was marked for Pltf Obj 602, foundation, 802

228:06 identification.)

228:07 Q. (BY MR. MORRISS:) So I'll show you

228:08 now, Col. Gates, Exhibit Number 26. And I'll

228:09 represent to you that this is also a slide deck

228:10 from Eric Fallon and one he used to make a

228:11 presentation. This was not shown to you earlier

228:12 today, was it?

228:13 A. No.

230:02 - 230:25 Gates, Kathy 2020-05-29 1:12

230:02 Q. (BY MR. MORRISS:) So if you'll look Re: [230:02 to 230:25] OVERRULED

230:03 at Page 1 of Exhibit 26, you have that in front of Pltf Obj 602, 611, foundation,

230:04 you, Col. Gates? 802

230:05 A. Yes.

230:06 Q. If you look at the right-hand corner,

230:07 is there a name and a number that's stamped on the

230:08 front page of this document?

230:09 A. Yes.

230:10 Q. And is it Fallon 00025?

230:11 A. Yes.

230:12 Q. And if you turn to Slide Number -- it

230:13 will actually be Slide Number 27 but it will have

230:14 Fallon 25 on the bottom. If you'll turn to that

230:15 for me, please. Or you can just look at the

230:16 screen. I'll put it up for you.

230:17 A. Okay.

230:18 Q. It's called "Selected Hearing

230:19 Protection," it has criteria, and it sets out three

230:20 things to be considered; degree of noise

230:21 attenuation required, work environment, and

230:22 advantages and disadvantages. Do you agree that

230:23 that's at least a partial criteria for selecting

230:24 hearing protection devices?

230:25 A. Yes.

231:07 - 231:23 Gates, Kathy 2020-05-29 1:51

231:07 Q. (BY MR. MORRISS:) If you'll turn to Re: [231:07 to 232:10] OVERRULED

231:08 Page Fallon 40, which is the sixteenth slide in the Pltf Obj 602, 611, foundation,

231:09 deck. This has a picture of various plugs and a 802

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 28 of 102
231:10 carrying case, correct?

231:11 A. Correct.

231:12 Q. And then if you go to Page 43, which

231:13 is Slide 19, it gives a listing of the advantages

231:14 of preformed plugs, correct?

231:15 A. Yes, that's correct, yes.

231:16 Q. Less expensive, washable, reusable.

231:17 And the Combat Arms Version 2 would be in the

231:18 preformed plug category, correct?

231:19 A. Yes.

231:20 Q. All right. If you'll go to the next

231:21 page, Page 44, there is a slide on disadvantages of

231:22 preformed plugs, correct?

231:23 A. Yes.

231:24 - 232:10 Gates, Kathy 2020-05-29 1:34

231:24 Q. And one of the disadvantages is that Re: [231:07 to 232:10] OVERRULED

231:25 the initial fit of a preformed plug must be made by Pltf Obj 602, 611, foundation,

232:01 a medically trained person, correct? 802

232:02 A. Correct, yes.

232:03 Q. And that's consistent with both the

232:04 DoD and the Army pamphlet on the Hearing

232:05 Conservation Program, correct?

232:06 A. Correct.

232:07 Q. And then also an acknowledgement that

232:08 just from normal jaw movements, these preformed

232:09 plugs will work loose, correct?

232:10 A. Yes.

232:20 - 233:10 Gates, Kathy 2020-05-29 1:52

232:20 Q. (BY MR. MORRISS:) If you'll go to Re: [232:20 to 233:10] OVERRULED

232:21 Page 53. This presentation contains a slide Pltf Obj 602, 611, foundation,

232:22 similar to the wallet card that we looked at 802

232:23 earlier, correct?

232:24 A. Yes, it does, uh-huh.

232:25 Q. And the bullet point below the year

233:01 also says, "Check proper fit by gently tugging on

233:02 the plugs for tension," correct?

233:03 A. Correct.

233:04 Q. And then the next, the very next

233:05 bullet point says, "For very large ear canals, fold

233:06 opposing plug back," correct?

233:07 A. Yes.

233:08 Q. And then it shows a picture of the

233:09 flange being folded back as an example, correct?

233:10 A. Yes.

234:01 - 234:02 Gates, Kathy 2020-05-29 0:04

234:01 Q. (BY MR. MORRISS:) So I'm now going

234:02 to show you Exhibit Number 25.

234:14 - 234:18 Gates, Kathy 2020-05-29 0:13

234:14 Q. (BY MR. MORRISS:) So Col. Gates, you

234:15 have in front of you this USACHPPM TG41, correct?

234:16 A. Yes, I do.

234:17 Q. Dated March 2006?

234:18 A. Yes, March 2006, yes.

234:19 - 235:02 Gates, Kathy 2020-05-29 0:18

234:19 Q. It would have been USACHPPM, I think

234:20 you testified, that would have put this manual

234:21 together, right?

234:22 A. That's correct.

234:23 Q. USACHPPM would have made the

234:24 decisions about what information should be included

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 29 of 102
234:25 about the various protection -- protective devices

235:01 that are included, correct?

235:02 A. Yes, that's correct.

235:12 - 235:19 Gates, Kathy 2020-05-29 0:14

235:12 Q. (BY MR. MORRISS:) I'll reask it.

235:13 I'll reask it. The "frequently asked questions"

235:14 document we looked at, that's a military document,

235:15 right?

235:16 A. That's correct, yes.

235:17 Q. The wallet card document we looked

235:18 at, that's a military document, right?

235:19 A. Yes.

235:24 - 235:24 Gates, Kathy 2020-05-29 0:00

235:24 A. Yes.

236:04 - 236:15 Gates, Kathy 2020-05-29 0:26

236:04 Q. Lt. Col. Merkley in the early 2000s, Re: [236:11 to 236:15] OVERRULED

236:05 he was a member of the military, correct? Pltf Obj 602, 611, foundation,

236:06 A. Yes, he was. 403 (undue delay, waste of

236:07 Q. He was making presentations, whatever time, needless presentation of

236:08 he said about folding the flange back, he was doing cumulative evidence)

236:09 it as a member of the armed services, correct?

236:10 A. Yes.

236:11 Q. Same for Lt. Fallon, if he was making

236:12 his presentations and showing slides that had the

236:13 flange folded back, he was doing that as a member

236:14 of the military, correct?

236:15 A. Yes.

236:16 - 236:21 Gates, Kathy 2020-05-29 0:19

236:16 Q. And this TG41, do you know why

236:17 whoever put this together did not include the

236:18 folding the flange information in it?

236:19 A. I don't have that information. I

236:20 wasn't part of putting this document exhibit

236:21 together.

236:22 - 236:25 Gates, Kathy 2020-05-29 0:09

236:22 Q. You would not have expected the Re: [236:22 to 236:25] SUSTAINED

236:23 manufacturer of any of the hearing protection Pltf Obj 611, foundation,

236:24 devices to be involved in the preparation of this calls for speculation

236:25 exhibit, would you?

237:03 - 237:20 Gates, Kathy 2020-05-29 1:57

237:03 A. No. Re: [237:03 to 237:03] SUSTAINED

237:04 Q. Now, have you heard Doug Ohlin make Pltf Obj 611, foundation,

237:05 the statement that written instructions alone are calls for speculation

237:06 ineffective?

237:07 A. Yes, I have. Re: [237:04 to 237:12] SUSTAINED

237:08 Q. And, in fact, Doug Ohlin has stated Pltf Obj 611, 802, foundation

237:09 publicly that handing somebody a set of

237:10 instructions and a hearing protection device is

237:11 inadequate, correct?

237:12 A. Yes.

237:13 Q. And is that consistent with your

237:14 view, as an audiologist, that written instructions

237:15 are inadequate and that a soldier or military

237:16 person must be trained on the fitting and use of

237:17 hearing protection devices?

237:18 A. I believe that I prefer to do the

237:19 training and allowing the soldier to experience how

237:20 to properly use hearing protection.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 30 of 102
242:08 - 243:11 Gates, Kathy 2020-05-29 1:22

242:08 Q. So if we will turn back to Exhibit Re: [242:08 to 243:15] SUSTAINED

242:09 27, this is the ArmyTimes article, correct? Pltf Obj 802, 402

242:10 A. That is correct, yes.

242:11 Q. It was an article written or posted Re: [243:04 to 243:06] SUSTAINED

242:12 on September -- Tuesday, September the 8th, 2009, Pltf Obj 611

242:13 correct?

242:14 A. Yes. Re: [243:07 to 243:11] SUSTAINED

242:15 Q. You were quoted in the article by the Pltf Obj 611, 802, foundation

242:16 reporter, correct?

242:17 A. Yes.

242:18 Q. You answered the questions or gave

242:19 the quotes in some respect about some version of

242:20 the Combat Arms earplug, correct?

242:21 A. Right.

242:22 Q. And you would have done that in your

242:23 role as a member of the military, correct?

242:24 A. Yes.

242:25 Q. If we turn over to the second page,

243:01 one of the things that you are quoted as saying is

243:02 that "the key to success is training," true?

243:03 A. That is correct, yes.

243:04 Q. And the key to success is training,

243:05 that is true of all earplugs, correct?

243:06 A. Correct.

243:07 Q. And I am not really sure where we

243:08 talked about this. But Doug Ohlin has said

243:09 publicly that simply handing someone written

243:10 instructions is ineffective, true?

243:11 A. Yeah.

243:12 - 243:15 Gates, Kathy 2020-05-29 0:11

243:12 Q. Okay. And Doug Ohlin believed that Re: [242:08 to 243:15] SUSTAINED

243:13 to be true at a time when he was head of the Pltf Obj 802, 402

243:14 Department of Defense Hearing Conservation Working

243:15 Group, correct? Re: [243:12 to 243:15] SUSTAINED

Pltf Obj 602, 611, foundation,

calls for speculation

243:18 - 243:25 Gates, Kathy 2020-05-29 0:21

243:18 A. I -- I believe that was his belief. Re: [243:18 to 243:19] SUSTAINED

243:19 I mean -- Pltf Obj 602, 611, foundation,

243:20 Q. (BY MR. MORRISS:) You, I believe, speculation

243:21 said that you also believed that it is important to

243:22 sort of put your hands on an individual soldier or Re: [243:20 to 244:03] SUSTAINED

243:23 military personnel to show them how to use the plug Pltf Obj 611, 702

243:24 and to make sure that it fits correctly.

243:25 A. That's correct, yes.

244:01 - 244:03 Gates, Kathy 2020-05-29 0:10

244:01 Q. And that is paramount in making sure Re: [243:20 to 244:03] OVERRULED

244:02 that the plug that is given to the soldier or Pltf Obj 611, 702

244:03 military personnel will work, correct?

244:06 - 244:10 Gates, Kathy 2020-05-29 0:15

244:06 A. I think that the training helps give Re: [244:06 to 244:10] OVERRULED

244:07 them experience in wearing the hearing protection. Pltf Obj 611, 702

244:08 I can't say that giving them a wallet-sized card

244:09 doesn't help them properly insert their earplugs.

244:10 I --

244:18 - 244:20 Gates, Kathy 2020-05-29 0:09

244:18 Q. And that is the very reason that Re: [244:18 to 244:20] SUSTAINED

244:19 USACHPPM developed a wallet card specific to the Pltf Obj 602, 611, foundation,

244:20 Combat Arms Version 2 earplug, right? argumentative, misstates

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 31 of 102
244:23 - 245:20 Gates, Kathy 2020-05-29 1:12

244:23 A. Yeah. And just to make a comment Re: [244:23 to 245:20] SUSTAINED

244:24 here, this article was written in support of the Pltf Obj 602, 611, foundation,

244:25 fourth generation Combat Arms earplug that was argumentative, misstates, 802,

245:01 coming out. The existing earplug that was part of 402

245:02 the rapid fielding issue also was the dial-up -- or

245:03 the pistol-grip version of the Combat Arms earplug

245:04 that had the three sizes. So that was --

245:05 Q. (BY MR. MORRISS:) Right.

245:06 A. -- introducing the next version of

245:07 the Combat Arms earplug.

245:08 Q. The reason that you were giving the

245:09 quote and being interviewed -- in fact, if you look

245:10 at the first sentence of the article on Page 1, is

245:11 it was -- the topic was "next-generation earplug

245:12 designed to make it easier for troops to protect

245:13 their eardrums will hit the war zone." Right?

245:14 A. That's correct yeah.

245:15 Q. But the comments about the key to

245:16 success is training and that soldiers need an

245:17 opportunity to train with earplugs, those

245:18 statements are true no matter what version you are

245:19 talking about, correct?

245:20 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 32 of 102
Pltf Objections 3M Objections Rulings 

8:07 - 8:18 Merkley, John 2020-02-26 1:37

8:07 Q. Good morning, LTC Merkley. My name is

8:08 Nick Wasdin, and I represent 3M Company in this

8:09 case. You serve as the Army Hearing Division chief

8:10 at the Army Public Health Center in Aberdeen,

8:11 Maryland; is that right?

8:12 A. I'm -- I'm the Army Hearing Program

8:13 Manager. There's been a reorganization over the

8:14 last year, so it's not -- it's not a division any

8:15 more. It's a -- it's a program.

8:16 Q. How long have you had the title of chief

8:17 of that program or head of that program?

8:18 A. Since July of 2018.

8:19 - 13:08 Merkley, John 2020-02-26 7:35

8:19 Q. Can you give us an overview of your

8:20 military service leading up to July of 2018?

8:21 A. Sure. I -- I started in the National

9:01 Guard in 19 -- September 1991. I joined the Utah

9:02 National Guard as a linguist. I went to basic

9:03 training in October of '91 to December of '91 at

9:04 Fort Leonard Wood, Missouri.

9:05 I was a -- I went from there to the

9:06 Defense Language Institute to study Russian, and I

9:07 was at the Defense Language Institute for almost

9:08 all of 1992, and then went to Fort Huachuca and was

9:09 trained as an interrogator.

9:10 I went off of active duty in March of '93

9:11 and into the National Guard and stayed in the

9:12 National Guard until June of 1998, when I graduated

9:13 as an audiologist and left the state of Utah.

9:14 I was in inactive -- the inactive ready

9:15 reserve through June of 1999 and then commissioned

9:16 as a First Lieutenant in the Army Reserves as an

9:17 audiologist with the 7231st Mobilization Support

9:18 Unit in Lubbock, Texas.

9:19 I left that unit in March -- or February

9:20 of 2000 and went in -- on active duty as an

9:21 audiologist and then went to basic training as an

10:01 audi- -- officer basic training in 2000, March of

10:02 2000.

10:03 From there, I went to -- to duty stations

10:04 at Fort Drum, New York. I was stationed at Fort

10:05 Drum, New York from June or July, I don't remember

10:06 exactly, of -- of 2000 through July of 2004 and

10:07 then moved to Wurzburg, Germany from 2004 to 2006,

10:08 when I deployed to Iraq.

10:09 I was in Iraq -- well, on a deployment.

10:10 I went with the 28th Combat Support Hospital, so we

10:11 did some train-up. I left in August. We trained

10:12 up, went to Kuwait in September of 2006.

10:13 I went into Iraq in October 2006 and then

10:14 returned from that deployment in November of 2007

10:15 to Fort Bragg. I returned home on the 1st of

10:16 December 2007 and then stayed in Wurzburg for three

10:17 years, and then PCS'd to Landstuhl.

10:18 I'm sorry, I'm not telling you my

10:19 position. So, my position at Fort Drum was the

10:20 chief of audiology and the hearing -- installation

10:21 hearing conservation program manager. In Wurzburg,

11:01 I had the same title. I was the chief of audiology

11:02 and the hearing conservation program manager for

11:03 all of the Bavaria region. So, the Wurzburg

11:04 Hospital and all of the subordinate clinics to

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 33 of 102
11:05 Wurzburg.

11:06 Then as -- with the 28th CSH, I deployed

11:07 as an audiologist, and in Iraq, I also served as

11:08 the theatre consultant for audiology.

11:09 Then PCS'd -- I came back to Germany,

11:10 PCS'd to Landstuhl where I was assigned to the Army

11:11 Public Health -- well, it was -- it was the Center

11:12 for Health Promotion and Preventive Medicine at the

11:13 time.

11:14 Q. CHPPM?

11:15 A. CHPPM. CHPPM Europe. They transitioned

11:16 to the Army Public Health Command Region Europe

11:17 while I was there. That was in 2008. So,

11:18 2008/2009 is when -- when that transitioned.

11:19 I left that position -- oh, while in

11:20 Europe, I also served as the Europe audiology

11:21 consultant, so that -- the European -- European

12:01 Regional Medical Command audiology consultant.

12:02 Then PCS'd from Germany in 200- -- August

12:03 2011 to Fort Carson, where I served as the chief

12:04 of -- well, I'm sorry. I served as the

12:05 installation hearing program manager and was

12:06 assigned to the Department of Preventive Medicine.

12:07 I also served as the western

12:08 region or, I'm sorry, southern region audiology

12:09 consultant until the regions changed and Fort

12:10 Carson fell under the western -- I have to go back.

12:11 Q. That's okay.

12:12 A. But I was the audiology consultant for

12:13 the region, --

12:14 Q. Got it.

12:15 A. -- whichever it was. Because it

12:16 transitioned, and I became the central region

12:17 audiology consultant. And then PCS'd from Fort

12:18 Carson in January 2015 to the Defense Hearing

12:19 Center of Excellence, where I was assigned as the

12:20 Army liaison officer to the DoD Hearing Center of

12:21 Excellence.

13:01 Q. What year was that?

13:02 A. That was in January 2015.

13:03 Q. What did you do between 2015 when you

13:04 took over as the chief of the Army --

13:05 A. So --

13:06 Q. -- hearing division?

13:07 A. So, I left San Antonio in May of 2018 and

13:08 PCS'd to Aberdeen Proving Grounds.

13:16 - 14:01 Merkley, John 2020-02-26 0:18

13:16 So, were you the Army liaison officer at

13:17 the Defense Center for Hearing Excellence up until

13:18 you took over as the chief of the, what is now the

13:19 Army Hearing Program?

13:20 A. Yes.

13:21 Q. And that was in July of 2018?

14:01 A. Correct.

14:02 - 15:07 Merkley, John 2020-02-26 2:07

14:02 Q. What responsibilities does the Army

14:03 Hearing Program have?

14:04 A. Well, the Army Hearing Program has

14:05 responsibility for oversight of the -- of

14:06 the -- the Army Hearing Program across the world.

14:07 We have professionals that monitor the

14:08 database for surveillance audiometry and report on

14:09 the database report statistics from the -- you

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 34 of 102
14:10 know, we -- we can find the number of individuals

14:11 that were -- were required to receive a -- a

14:12 monitoring audiogram, the number of individuals

14:13 that received a monitoring audiogram, injury and

14:14 illness rates, recordable injury and illness rates,

14:15 follow-up compliance and the information like that.

14:16 That's one area of what we do.

14:17 We also have a studies and investigations

14:18 group that was borne out of the Institute of

14:19 Medicine report, and I believe it was the 2009 NDAA

14:20 that looked at what we needed to do to improve

14:21 hearing health across the Department of Defense.

15:01 The Army stood up this studies group to look

15:02 specifically at ways of improving hearing health.

15:03 So, we -- we conduct studies and

15:04 collaborate with other organizations, like the

15:05 Defense Hearing Center of Excellence, to look at,

15:06 you know, best practices and implementing best

15:07 practices in hearing conservation.

15:08 - 16:05 Merkley, John 2020-02-26 1:08

15:08 Q. Does the Army Hearing Program have a role

15:09 in determining what type of hearing protection

15:10 devices would be used by service members in the

15:11 Army?

15:12 A. They have a consultative role in that

15:13 currently. I mean, I don't -- I don't make

15:14 selections or I don't solicit hearing protection

15:15 and make an up or down vote on what hearing

15:16 protectors are used. That falls -- that

15:17 responsibility falls to the Program Executive

15:18 Office for soldiers --

15:19 Q. Who's --

15:20 A. -- I believe.

15:21 Q. Who is in charge of that office today?

16:01 A. I -- I don't know. I know who is in

16:02 charge of -- well, who was in charge of the TCAPS

16:03 Program, but I am -- I don't know who is in charge

16:04 of the selecting and, you know, choosing which

16:05 hearing protectors to use.

18:18 - 18:21 Merkley, John 2020-02-26 0:08

18:18 Q. Where is the Army Hearing Program

18:19 physically located?

18:20 A. Aberdeen Proving Grounds. The Edgewood

18:21 area of Aberdeen Proving Grounds.

22:06 - 22:09 Merkley, John 2020-02-26 0:05

22:06 Q. The Department of Defense requires the

22:07 Army to maintain a Hearing Conservation Program,

22:08 right?

22:09 A. Correct.

22:14 - 24:01 Merkley, John 2020-02-26 2:32

22:14 Q. I'm going to hand you what I have marked

22:15 as Exhibit 1. Take a look at Exhibit 1 and tell me

22:16 if you recognize it.

22:17 A. Yes.

22:18 Q. What is that document?

22:19 A. Well, this is an -- an outdated

22:20 Department of Defense instruction for the Hearing

22:21 Conservation Program.

23:01 Q. You say outdated. This particular

23:02 version is dated April 22, 1996, correct?

23:03 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 35 of 102
23:04 Q. This instruction is updated from time to

23:05 time, right?

23:06 A. Correct.

23:07 Q. Do you know when the next update after

23:08 April of 1996 was?

23:09 A. I -- I believe it was in 2010.

23:10 Q. Okay. So, this was the operative

23:11 instruction during at least 1996 to 2010?

23:12 A. I believe so.

23:13 Q. This instruction contains a number of

23:14 requirements for the Hearing Conservation Program

23:15 at each of the DoD components, right?

23:16 A. Correct.

23:17 Q. Including the Army?

23:18 A. Yes.

23:19 Q. For example, if you turn to page 7 and

23:20 look at section 6.6, there are requirements for

23:21 personal hearing protectors, do you see that?

24:01 A. Yes.

24:04 - 24:20 Merkley, John 2020-02-26 1:55

24:04 Q. And, for example, 6.6.2 requires that DoD

24:05 components issue personal hearing protectors free

24:06 to all personnel who work in noise or

24:07 noise-hazardous areas or with noise-hazardous

24:08 equipment, right?

24:09 A. Right.

24:10 Q. 6.6.5 provides that DoD personnel shall

24:11 be allowed to choose personal hearing protectors

24:12 from among those approved devices available through

24:13 supply channels unless medically contraindicated or

24:14 inappropriate for a particular hazardous-noise

24:15 exposure; is that right?

24:16 A. Correct.

24:17 Q. Are Army service members able to choose

24:18 what hearing protection device they wear while in

24:19 service?

24:20 A. Yes.

24:21 - 26:19 Merkley, John 2020-02-26 2:04

24:21 Q. 6.6.7 says that preformed earplugs shall Re: [24:21 to 26:19] OVERRULED

25:01 be fitted and issued only under the supervision of Pltf Obj 611 [ 25:17-26:4]

25:02 personnel who have been specifically trained to fit

25:03 earplugs, did I read that right?

25:04 A. Correct.

25:05 Q. What are preformed earplugs?

25:06 A. Preformed earplugs are ear -- earplugs

25:07 that are -- you -- you don't form on yourself.

25:08 They're not moldable. They -- they come premolded

25:09 usually containing flanges. They can be single

25:10 flanges up to -- currently there are hearing

25:11 protectors that have four flanges.

25:12 Q. Is -- are you familiar with the Combat

25:13 Arms Version 2 Earplug?

25:14 A. Yes.

25:15 Q. Is that a preformed earplug?

25:16 A. Yes.

25:17 Q. And so, when the Combat Arms Version 2 is

25:18 issued to service members, the DoD instruction

25:19 requires that it would be fitted and issued only

25:20 under the supervision of personnel who have been

25:21 specifically trained to fit earplugs --

26:01 MR. BUCHANAN: Objection to form.

26:02 BY MR. WASDIN:

26:03 Q. -- is that right?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 36 of 102
26:04 A. That's correct.

26:05 Q. 6.6.9, going down, states that medically

26:06 trained personnel must examine the fit and

26:07 condition of preformed and custom earplugs at least

26:08 annually, right?

26:09 A. Yes.

26:10 Q. So, under 6.6.9, anyone who had been

26:11 issued the Combat Arms Version 2 should have been

26:12 examined for fit at least annually?

26:13 A. Correct.

26:14 Q. And then 6.6.8 allows that if basically

26:15 you couldn't be fit by the medically trained

26:16 personnel with the preformed earplug, such as the

26:17 Combat Arms, then they would move to a custom

26:18 device in special circumstances; is that right?

26:19 A. Correct.

26:20 - 27:06 Merkley, John 2020-02-26 0:29

26:20 Q. Flipping back a page or two, excuse me,

26:21 page -- the page at the bottom is 3, there is a

27:01 requirement under the header 6, Procedures, and

27:02 subheader, 6.1, Written Plan, that the DoD

27:03 components shall prepare a written plan for the

27:04 implementation of a comprehensive Hearing

27:05 Conservation Program, right?

27:06 A. Correct.

27:14 - 28:07 Merkley, John 2020-02-26 1:54

27:14 Q. For example, 6.1 states that the plan to

27:15 be implemented by the DoD components shall address

27:16 occupational noise exposure, computation and

27:17 monitoring, noise abatement, hearing protectors,

27:18 methods for exa- -- estimating the adequacy of

27:19 hearing protector attenuation, training,

27:20 audiometric testing requirements, audiometric test

27:21 rooms, audiometric measuring instruments, acoustic

28:01 calibration of audiometers, recordkeeping and

28:02 program evaluation, did I read that right?

28:03 A. Yes.

28:04 Q. And so, in 1996 at least, the requirement

28:05 was for the Army to have a written plan that

28:06 tracked those items?

28:07 A. Correct.

28:18 - 29:20 Merkley, John 2020-02-26 1:52

28:18 Q. LTC Merkley, do you recognize the

28:19 document that I have handed you as Exhibit 2?

28:20 A. Yes.

28:21 Q. What is it?

29:01 A. DA Pamphlet 40-501. It's the Army's

29:02 written program for the Hearing Conservation

29:03 Program.

29:04 Q. This version is dated 10 December 1998,

29:05 right?

29:06 A. Correct.

29:07 Q. And like the DoD instruction, the Army

29:08 would from time to time update the 40-501 Pamphlet,

29:09 right?

29:10 A. Correct.

29:11 Q. Do you know when the next update was

29:12 after 1998?

29:13 A. I don't have a current. I believe it was

29:14 2014.

29:15 Q. Okay. In any event, this was the

29:16 operative document as of December --

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 37 of 102
29:17 A. Yes.

29:18 Q. -- 10th, 1998 through some time around

29:19 2014?

29:20 A. Correct.

30:17 - 31:02 Merkley, John 2020-02-26 1:31

30:17 Q. If you flip to Chapter 6 on page 5, for

30:18 example, section 6.1 titled, Introduction, it

30:19 begins by saying that all personnel working in or

30:20 visiting potentially noise-hazardous areas must

30:21 have hearing protectors with them at all times, do

31:01 you see that?

31:02 A. Yes.

31:03 - 31:19 Merkley, John 2020-02-26 1:53

31:03 Q. Section 6.2, labeled Protector

31:04 Requirements, contains guidelines that were then in

31:05 place for what type of protector to wear in various

31:06 types of steady-state or impulse noises, correct?

31:07 A. Correct.

31:08 Q. And then section 3 or, excuse me, 6.3,

31:09 labeled Characteristics discusses the various types

31:10 of hearing protection devices that were then

31:11 available; is that right?

31:12 A. Yes.

31:13 Q. And like the DoD instruction, it begins

31:14 by saying that preformed ear flange -- excuse me,

31:15 preformed earplugs are triple- or single-flange

31:16 earplugs. Medically trained personnel must fit and

31:17 examine these earplugs at least annually to ensure

31:18 proper fit and condition, right?

31:19 A. Correct.

31:20 - 32:18 Merkley, John 2020-02-26 1:54

31:20 Q. I noticed, if you go back to 6.1c on page

31:21 5, there's a reference that an earplug carrying

32:01 case must also be provided in addition to earplugs?

32:02 A. Um-hum.

32:03 Q. And then it has a single national stock

32:04 number there?

32:05 A. Correct.

32:06 Q. Do you know what carrying case that's

32:07 referring to?

32:08 A. Yes.

32:09 Q. At the time in 1998, was there just one

32:10 carrying case that would be issued regardless of

32:11 what type of preformed earplug you get?

32:12 A. Yes.

32:13 Q. And did the military have -- they had

32:14 that carrying case as of at least December 1998

32:15 already?

32:16 A. Well, I -- they -- they had it in -- yes.

32:17 I was issued one in the National Guard, so -- and

32:18 that was prior to 1998.

33:03 - 33:04 Merkley, John 2020-02-26 0:11

33:03 Q. What year were you issued one?

33:04 A. I was issued one in 1994.

33:05 - 34:04 Merkley, John 2020-02-26 1:17

33:05 Q. Focusing on 6.3a, the requirement that Re: [33:05 to 34:04] OVERRULED

33:06 medically trained personnel must fit and examine Pltf Obj 602, 611

33:07 preformed earplugs at least annually to ensure

33:08 proper fit and condition, can you tell us how, if

33:09 you know at this time, medically trained personnel

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 38 of 102
33:10 would have evaluated the fit of preformed earplugs

33:11 for service members?

33:12 A. For --

33:13 MR. BUCHANAN: Objection to form and

33:14 foundation.

33:15 THE WITNESS: Okay. So, if it was -- if

33:16 it was done correctly -- and I was fitted with

33:17 preformed earplugs at basic training back in

33:18 October of 1991. They were the triple-flanged,

33:19 orange, regular hearing protectors, and the

33:20 medically trained personnel would do a tug test and

33:21 a visual inspection of the ear to see, you know,

34:01 were -- were all of the flanges in the ear and then

34:02 tugged -- well, they actually had us tug to make

34:03 sure that we felt the suction and that the earplug

34:04 didn't just come out of the ear.

34:06 - 34:07 Merkley, John 2020-02-26 0:04

34:06 Q. That happened for you at basic?

34:07 A. That happened to me -- for me at basic

34:09 - 34:12 Merkley, John 2020-02-26 0:11

34:09 Q. Okay. Re: [34:09 to 34:12]

34:10 A. We trained all of our technicians on the Pltf Obj 602

34:11 same fitting technique and how to identify a -- a

34:12 good or a poor fit.

34:13 - 34:16 Merkley, John 2020-02-26 0:07

34:13 Q. Okay. And it sounds like that Re: [34:13 to 34:16]

34:14 technique -- would the technician actually insert Pltf Obj 602

34:15 the earplug into the service member's ear?

34:16 A. Not usually.

34:17 - 35:02 Merkley, John 2020-02-26 0:14

34:17 Q. Okay. Re: [34:17 to 35:02] OVERRULED

34:18 A. The -- the service member would insert Pltf Obj 602, 611

34:19 the earplug, and then the -- the -- the service

34:20 member would walk by the technician, and the

34:21 technician would do a check.

35:01 Q. Visual and tug test?

35:02 A. Visual and tug test.

35:05 - 35:17 Merkley, John 2020-02-26 0:19

35:05 MAJOR EVANS: And, I'm sorry, I'm just

35:06 going to clarify one point. You weren't an

35:07 audiologist in that time frame, sir?

35:08 THE WITNESS: No. No, I was not.

35:09 MAJOR EVANS: So, you're -- you're just

35:10 only talking about what the test would be from

35:11 your -- your education as an audiologist?

35:12 THE WITNESS: No. This is what happened

35:13 to me --

35:14 MAJOR EVANS: Okay.

35:15 THE WITNESS: -- at Fort Leonard Wood.

35:16 MAJOR EVANS: That's just what I wanted

35:17 to be clear about.

36:20 - 37:11 Merkley, John 2020-02-26 1:32

36:20 Q. Is situation awareness important in the Re: [36:20 to 37:11]

36:21 military? Pltf Obj 602, MIL G5 

37:01 A. Yes.

37:02 Q. Why?

37:03 A. Because in a combat zone, a combat

37:04 environment, you need to be aware of what's

37:05 happening around you.

OBJECTION WITHDRAWN, 

3/11/2021

OBJECTION WITHDRAWN, 

3/11/2021

OVERRULED;

602 OBJECTION 

WITHDRAWN, 3/11/2021

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 39 of 102
37:06 Q. Is situation awareness a dueling priority

37:07 with hearing protection?

37:08 A. Absolutely.

37:09 Q. Why?

37:10 A. Because any time you plug the ears, it

37:11 affects your ability to hear and localize sounds.

38:05 - 39:01 Merkley, John 2020-02-26 1:54

38:05 Q. Yeah, sure. If you go in 40-501 and you Re: [38:05 to 39:01] OVERRULED

38:06 flip to section 6.2, you told me earlier that this Pltf Obj 611 [ 38:05-39:01]

38:07 section had requirements for the use of hearing

38:08 protection in various situations in noise I

38:09 believe?

38:10 MR. BUCHANAN: Objection. Form.

38:11 THE WITNESS: I -- I didn't say that this

38:12 section had the requirements. It may.

38:13 BY MR. WASDIN:

38:14 Q. This is section 6 --

38:15 A. It does indicate what hearing protection

38:16 to use when you're exposed to certain levels of

38:17 noise.

38:18 Q. Okay. And if you go on to page 6 and go

38:19 down to the bottom of the left-hand column to

38:20 the -- what is 6. -- or 6-2(d), there's guidance

38:21 for combat scenarios, right?

39:01 A. Right.

40:04 - 40:21 Merkley, John 2020-02-26 1:50

40:04 Q. And that section that starts out, in Re: [40:04 to 40:21] OVERRULED

40:05 combat, soldiers, and then -- Pltf Obj 402; 403; 611 [40:14-21]

40:06 A. Correct.

40:07 Q. -- there's a dash, and it has a

40:08 subsection (1) and (2), and if you -- can you look

40:09 at (2) at the top of the right-hand column and tell

40:10 me what that says?

40:11 A. Should NOT wear hearing protectors when

40:12 they impair necessary hearing. For example, with

40:13 dismounted infantry operations.

40:14 Q. So, as of December 1998, the Army

40:15 requirement was that when in combat, service

40:16 members should not, and not there is all

40:17 capitalized, wear hearing protectors when they

40:18 impair necessary hearing, including with dismounted

40:19 infantry op- -- operations, right?

40:20 MR. BUCHANAN: Objection to form.

40:21 THE WITNESS: That's what it says.

41:18 - 41:21 Merkley, John 2020-02-26 0:16

41:18 Q. LTC Merkley, I have handed you a document

41:19 we have marked as Exhibit 3. This is a test report

41:20 that was produced to us by the military in this

41:21 case. Is this a document you've ever seen before?

42:01 - 42:01 Merkley, John 2020-02-26 0:01

42:01 A. Not that I recall, no.

43:17 - 45:10 Merkley, John 2020-02-26 2:15

43:17 Q. Okay. Going down to the bottom paragraph Re: [43:17 to 45:10] SUSTAINED

43:18 it says, several military laboratories in the

43:19 United States and Europe, working with industry,

43:20 have endeavored to develop tactical headset

43:21 technologies which protect the hearing of mounted

44:01 and dismounted personnel from weapons and blast

44:02 noise while promoting ambient soundscape listening

44:03 and voice communications, did I read that right?

Pltf Obj Vague; 602 [45:02-45:10]; 

611 [44:5-44:10]

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 40 of 102
44:04 A. Yes.

44:05 Q. Do you know which laboratories, which

44:06 military laboratories in the U.S. and Europe worked

44:07 with industry to develop nonlinear hearing devices?

44:08 MR. BUCHANAN: Objection to form. Vague

44:09 as to time.

44:10 THE WITNESS: I -- I know USAARL worked

44:11 on a product meeting this description. ARL did

44:12 work with -- in reports that I have read worked

44:13 with our researchers from the laboratory in -- I

44:14 believe it's in Saint-Louis, France to develop this

44:15 type of hearing pro- -- develop and evaluate this

44:16 type of hearing protector.

44:17 BY MR. WASDIN:

44:18 Q. Are you referring to the Combat Arms

44:19 Earplug?

44:20 MR. BUCHANAN: Objection to the form.

44:21 THE WITNESS: Yes.

45:01 BY MR. WASDIN:

45:02 Q. So, it's your understanding that ARL

45:03 worked with the Institute of Saint-Louis in France

45:04 to develop the Combat Arms Earplug?

45:05 MR. BUCHANAN: Objection to form and

45:06 foundation.

45:07 THE WITNESS: I -- I believe so.

45:08 BY MR. WASDIN:

45:09 Q. Okay. Let's talk about that history a

45:10 little bit.

45:15 - 46:01 Merkley, John 2020-02-26 1:57

45:15 Q. LTC Merkley, I going to hand you a -- a Re: [45:15 to 46:01] OVERRULED

45:16 document we've marked as Exhibit 4. You'll see it Pltf Obj Foundation; 602

45:17 has a prior sticker from a different deposition on

45:18 it, but I'll refer to it as Exhibit 4.

45:19 If you flip that open, tell me if you

45:20 recognize the document as a test report prepared by

45:21 a gentleman named Dan Johnson in the mid 1990s?

46:01 A. That's who signed it, yes.

46:02 - 46:04 Merkley, John 2020-02-26 0:06

46:02 Q. Have you ever seen this test report

46:03 before?

46:04 A. Not to my knowledge, no.

46:08 - 47:08 Merkley, John 2020-02-26 1:12

46:08 This report, just on page 1, is titled Re: [46:08 to 47:08] OVERRULED

46:09 Blast Overpressure Studies with Animals and Man, Pltf Obj Foundation; 602

46:10 right?

46:11 A. Correct.

46:12 Q. And it appears to have been conducted in

46:13 Albuquerque, New Mexico, correct?

46:14 A. Correct.

46:15 Q. If you -- I'm going to use the romanettes

46:16 or I guess they're actually capital Romans at the

46:17 bottom, the page numbers, but if you go to III,

46:18 page 18 with me. Actually, before you turn there,

46:19 can I just go right -- keep your finger there and

46:20 go back to the front page. I should have asked

46:21 you, this report, if you go down the left, was

47:01 prepared for the Commander of the U.S. Army Medical

47:02 Research and Material Command at Fort Detrick in

47:03 Maryland, right?

47:04 A. Correct.

47:05 Q. Okay. And if you go to III, page 18, it

47:06 looks like this section is titled, Results, and

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 41 of 102
47:07 then Nonlinear Earplug Study, right?

47:08 A. Correct.

48:15 - 48:20 Merkley, John 2020-02-26 0:15

48:15 Q. Okay. And beneath that, it talks about Re: [48:15 to 48:20] OVERRULED

48:16 Phase 1 was a nonlinear earplug (Rucker Plug, Pltf Obj Foundation; 602

48:17 designed by the U.S. Army Aeromedical Research

48:18 Laboratory, USAARL, Fort Rucker, Alabama. Did I

48:19 read that right?

48:20 A. Yes.

49:06 - 49:13 Merkley, John 2020-02-26 0:21

49:06 Q. Okay. If you go down, Phase 2 talks Re: [49:06 to 49:13] OVERRULED

49:07 about a nonlinear earplug (French No. 1 Plug, Pltf Obj Foundation; 602

49:08 designed by the French-German Research Institute

49:09 Saint-Louis, ISL France,) did I read that right?

49:10 A. Yes.

49:11 Q. Have you ever heard of the French No. 1

49:12 Plug?

49:13 A. I've heard of it.

50:06 - 50:18 Merkley, John 2020-02-26 1:36

50:06 Q. This -- this says the French No. 1 Plug Re: [50:06 to 50:18] OVERRULED

50:07 is also a modification of the triple-flange EAR Pltf Obj Foundation; 602; 611

50:08 UltraFit with a 2 millimeter diameter hole through

50:09 it's longitudinal access. This modification

50:10 consisted of shortening the stem by 8 millimeters

50:11 and putting the filter designed at ISL Saint-Louis,

50:12 France in the front end of the plug, and then it

50:13 directs us to a -- a figure, do you see that?

50:14 A. Yes.

50:15 Q. Does that refresh you at all that the

50:16 French No. 1 Plug was an UltraFit earplug with a

50:17 version of the ISL filter in it?

50:18 A. Yes.

51:09 - 52:05 Merkley, John 2020-02-26 1:45

51:09 Q. Before I ask you this, you said earlier Re: [51:09 to 52:05] OVERRULED

51:10 that you heard of the Dan Johnson study. Can you Pltf Obj Foundation; 602

51:11 just sort of give us an overview of what you know

51:12 about it?

51:13 A. I've just heard -- this is the

51:14 Albuquerque --

51:15 Q. Yeah.

51:16 A. -- study. I've -- I've just heard -- I

51:17 work with the -- the acoustic engineers that refer

51:18 back to this study based on their work for

51:19 the -- on AHAAH model for determining health hazard

51:20 assessment and risks, and -- and that's really what

51:21 I know about it.

52:01 Q. Okay.

52:02 A. It was a -- it was a blast study on human

52:03 subjects.

52:04 Q. Impulse noise study?

52:05 A. Impulse noise study, yeah.

52:06 - 52:10 Merkley, John 2020-02-26 0:07

52:06 Q. Using nonlinear earplugs?

52:07 MR. BUCHANAN: Objection to form and

52:08 foundation.

52:09 THE WITNESS: Well, I -- I didn't -- I

52:10 don't -- I just knew it was a blast study.

52:12 - 54:07 Merkley, John 2020-02-26 2:09

52:12 Q. On page 4 -- IV, page 5, there's a Figure Re: [52:12 to 54:07] OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 42 of 102
52:13 IV-2 that compares the Rucker Plug to French No. 1 Pltf Obj Foundation; 602

52:14 Plug with respect to percent of unacceptable TTS

52:15 versus peek level, do you see that?

52:16 A. Yes.

52:17 Q. What does TTS mean?

52:18 A. Temporary threshold shift.

52:19 Q. So, that means essentially that someone's

52:20 hearing shifts temporarily and responds to an

52:21 exposure to noise?

53:01 MR. BUCHANAN: Objection to form.

53:02 THE WITNESS: Yes.

53:03 BY MR. WASDIN:

53:04 Q. And then there's data in the -- the chart

53:05 above that plots out how the French No. 1 and the

53:06 Rucker Plug performed as a measure of percent of

53:07 unacceptable TTS?

53:08 A. Yes.

53:09 Q. And it looks like that data tracks their

53:10 performance up through 193 decibels at various

53:11 numbers of shots fired?

53:12 MR. BUCHANAN: Objection to form and

53:13 foundation. Leading.

53:14 THE WITNESS: Yes.

53:15 BY MR. WASDIN:

53:16 Q. And if you track, you can see on the

53:17 right that the French No. 1 Plug, the plug with the

53:18 UltraFit and the ISL filter, is tracked on two

53:19 metrics using the solid line; once at six shots

53:20 fired and then once at 100 shots fired, right?

53:21 A. Correct.

54:01 Q. And at six shots fired at 190 decibels,

54:02 the French No. 1 Plug showed ten percent of

54:03 unacceptable TTS?

54:04 MR. BUCHANAN: Objection to form.

54:05 THE WITNESS: If that is at the ten

54:06 percent mark, and it appears to be close to ten

54:07 percent, then, yes.

56:03 - 56:21 Merkley, John 2020-02-26 1:46

56:03 Q. The section that starts on V-1 is titled Re: [56:03 to 56:21] OVERRULED

56:04 Conclusions, right, at the top? Pltf Obj Foundation; 602

56:05 A. Yes.

56:06 Q. And then there's a section for the

56:07 Nonlinear Earplug Study below that, right?

56:08 A. Correct.

56:09 Q. And I'm going to start with the second

56:10 paragraph for the nonlinear earplug study, and

56:11 you'll have to track me over that page number

56:12 oddity, but it says, like the perforated plug of

56:13 the previous study, the nonlinear plug designed at

56:14 Fort Rucker was inadequate. Perhaps with

56:15 additional subjects, the plug might be safe for

56:16 shots at 175 dB and below; however, like the

56:17 perforated plug, they made it difficult to

56:18 understand speech and windy conditions; thus, there

56:19 is no valid reason to use them, did I read that

56:20 right?

56:21 A. Yes.

57:06 - 57:12 Merkley, John 2020-02-26 0:20

57:06 Q. And then the next paragraph Re: [57:06 to 57:12] OVERRULED

57:07 talks -- says, the nonlinear plug that used a Pltf Obj Foundation; 602

57:08 special filter designed in France performed better

57:09 and may be a satisfactory solution; however, not

57:10 enough subjects were exposed to provide a

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 43 of 102
57:11 definitive answer, did I read that right?

57:12 A. Yes.

58:02 - 58:15 Merkley, John 2020-02-26 1:48

58:02 Q. So, again, just to sort of -- I'm going

58:03 to hand you a document I have marked Exhibit 5, and

58:04 to level set our chronology here, the Johnson blast

58:05 study, the Albuquerque study, that was -- the front

58:06 of that was dated 1996, correct?

58:07 A. Correct. Right.

58:08 Q. And then if you turn -- if you look at

58:09 Exhibit 5, it's titled, Agenda DoD Hearing

58:10 Conservation Working Group Meeting 9 April 1998,

58:11 right?

58:12 A. Correct.

58:13 Q. What is the DoD or what was the DoD

58:14 Hearing Conservation Working Group, if you know, at

58:15 that time period?

58:18 - 59:04 Merkley, John 2020-02-26 0:29

58:18 THE WITNESS: Well, I know what the DoD

58:19 Hearing Conservation Working Group is.

58:20 BY MR. WASDIN:

58:21 Q. Okay. What is it?

59:01 A. It is a -- a working group of hearing

59:02 health professionals across the DoD that respond to

59:03 and address issues related to hearing conservation

59:04 in the Department of Defense.

59:12 - 60:03 Merkley, John 2020-02-26 1:54

59:12 Q. If you turn to it looks like on the first

59:13 page, the agenda for the April 9th, 1998 meeting,

59:14 there's a highlighted piece in the middle, number

59:15 4. It's the Tactical Combat Arms Nonlinear Plug

59:16 (Dr. Doug Ohlin USACHPPM), do you see that?

59:17 A. Yes.

59:18 Q. Who is Doug Ohlin?

59:19 A. Doug Ohlin is -- was a Ph.D. audiologist

59:20 assigned to the Army Center for Health Promotion

59:21 and Preventive Medicine as the Hearing Conservation

60:01 Program manager, and I believe at this time, he was

60:02 also the chair of the DoD Hearing Conservation

60:03 Working Group.

60:04 - 60:09 Merkley, John 2020-02-26 0:18

60:04 Q. Do you know what dates Mr. Ohlin would

60:05 have held that position?

60:06 A. Not exactly. He -- he was in that

60:07 position when I came on active duty as an

60:08 audiologist, and I -- I don't remember when

60:09 he -- he retired.

60:10 - 60:12 Merkley, John 2020-02-26 0:07

60:10 Q. Do you know what Mr. Ohlin's

60:11 responsibilities were in that position in the late

60:12 1990s?

60:15 - 60:20 Merkley, John 2020-02-26 0:11

60:15 THE WITNESS: Not -- not exactly.

60:16 BY MR. WASDIN:

60:17 Q. Do you know whether Mr. Ohlin would have

60:18 had the responsibility to evaluate hearing

60:19 protection devices as a member of the DoD Hearing

60:20 Conservation Working Group?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 44 of 102
61:01 - 61:02 Merkley, John 2020-02-26 0:03

61:01 THE WITNESS: I -- I don't know if that

61:02 was his responsibility.

61:13 - 62:07 Merkley, John 2020-02-26 1:42

61:13 Q. The memorandum is on Department of Army

61:14 letterhead?

61:15 A. Right. It's for the Department of the

61:16 Army Research Laboratory.

61:17 Q. ARL?

61:18 A. Right.

61:19 Q. Yeah. It's dated 19 March 1997, right?

61:20 A. Correct.

61:21 Q. And the Subject is, trip report on Visit

62:01 to the French-German Institute at Saint-Louis (ISL)

62:02 France 5 to 23 December 1996?

62:03 A. Correct.

62:04 Q. And if you just flip a few pages over to

62:05 page 6 of that memo, it's signed by a gentleman

62:06 named Georges Garinther?

62:07 A. Um-hum.

62:08 - 62:15 Merkley, John 2020-02-26 0:25

62:08 Q. Do you know who Georges Garinther was?

62:09 A. I've heard his name associated with other

62:10 studies, but I -- I don't know him exactly, what

62:11 his responsibilities were.

62:12 Q. Was he a member of the U.S. Army?

62:13 A. I -- I don't believe so. I -- I think he

62:14 was a researcher, but I don't think he was on

62:15 active duty, that -- that I recall.

63:02 - 64:12 Merkley, John 2020-02-26 2:46

63:02 Q. Okay. If you go to -- flip back, sir, to Re: [63:02 to 64:12] SUSTAINED

63:03 page 2 of the memo -- by the way, to -- to level

63:04 set again our time period, this is -- he's writing

63:05 about a trip report that was at the end of 1996, so

63:06 after the Johnson blast study we talked about?

63:07 A. Right. Okay.

63:08 Q. And on paragraph 5 he writes, In view of

63:09 the potential positive impact of nonlinear

63:10 earplugs, Mr. Garinther participated in a series of

63:11 experiments conducted by ISL in December 1996 at a

63:12 large French Army training area near the city of

63:13 Nimes, France. This study is preliminary to a more

63:14 complete study being planned for May of 1997 using

63:15 a larger number of subjects and exposing the

63:16 soldiers to large caliber mortars. The experiments

63:17 conducted in December consisted of, and then

63:18 there's a list of them, do you see that?

63:19 A. Um-hum.

63:20 Q. So, it looks like in 1996, Mr. Garinther

63:21 has gone to ISL in France to further test nonlinear

64:01 earplugs with the ISL filter?

64:02 MR. BUCHANAN: Objection to the leading

64:03 and foundation.

64:04 THE WITNESS: Yes.

64:05 BY MR. WASDIN:

64:06 Q. And then if you turn to the next page,

64:07 page 3, paragraph 6 says, preliminary results prior

64:08 to a detailed analysis indicate that the nonlinear

64:09 earplug protected hearing as effectively as the

64:10 Max-Lyte earplug that is normally worn by French

64:11 soldiers, did I read that right?

64:12 A. Yes.

Pltf Obj Foundation; 602 and 611 

[63:20-64:4]

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 45 of 102
65:06 - 65:16 Merkley, John 2020-02-26 1:31

65:06 Q. If you go to page 5, one over, paragraph

65:07 11, Mr. Garinther writes, I have discussed these

65:08 results with Felix Sachs and Doug Ohlin of CHPPM,

65:09 who also believe that nonlinear earplugs should be

65:10 included as a standard or specialized earplug in

65:11 the military, did I read that right?

65:12 A. Yes.

65:13 Q. Who is Felix Sachs?

65:14 A. Felix Sachs was an acoustical or a noise

65:15 control engineer assigned to the Center for Health

65:16 Promotion and Preventive Medicine.

65:17 - 65:18 Merkley, John 2020-02-26 0:03

65:17 Q. A member of the Army?

65:18 A. No. He was a civilian.

66:03 - 69:16 Merkley, John 2020-02-26 4:49

66:03 Q. So, in 1996, this report indicates Re: [66:03 to 69:16] SUSTAINED

66:04 essentially that Mr. Garinther went to France, Pltf Obj Foundation; 602 [ 67:19-68:02]; 611 [66:03-66:08 and 67:19-68:04]

66:05 tested a nonlinear earplug and discussed the

66:06 results of that with Felix Sachs and Doug Ohlin?

66:07 MR. BUCHANAN: Objection to form.

66:08 THE WITNESS: Yes.

66:09 BY MR. WASDIN:

66:10 Q. If you turn the page again, there's a

66:11 second memorandum, and this one is dated 2 March

66:12 1998.

66:13 A. Okay.

66:14 Q. This memorandum is also on Department of

66:15 Army letterhead or --

66:16 A. That's the Research Laboratory

66:17 letterhead.

66:18 Q. Yes.

66:19 A. Correct.

66:20 Q. And it relates to the visit to the

66:21 French-German Institute at Saint-Louis 21 to 29

67:01 November 1997, right?

67:02 A. Correct.

67:03 Q. So, essentially a year later -- and if

67:04 you flip over a page, this one is also signed by

67:05 Mr. Georges Garinther, right?

67:06 A. Yes.

67:07 Q. Going back to page 2. The middle

67:08 paragraph on page 2 says that, during 24 to 28

67:09 November 1997, the undersigned participated in

67:10 testing of this device using French soldiers firing

67:11 mortars at Canjuers, France. During 1996,

67:12 Mr. Garinther also took part in the evaluation of

67:13 this earplug to determine its hearing protective

67:14 qualities when firing the FAMAS, the French

67:15 equivalent to the M16, when detecting and

67:16 localizing various military sounds and when

67:17 listening to speech, did I read that right?

67:18 A. Yes.

67:19 Q. So, this memo is detailing that a year

67:20 after his first trip to France, Mr. Garinther went

67:21 back to ISL for additional testing on the nonlinear

68:01 earplug they were using?

68:02 MR. BUCHANAN: Objection to the leading

68:03 and foundation.

68:04 THE WITNESS: Yes.

68:05 BY MR. WASDIN:

68:06 Q. And if you go to page 4, there's already

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 46 of 102
68:07 some highlighting on the document. I -- I think it

68:08 came this way to us from when was it was produced

68:09 by the government, but the highlighted paragraph

68:10 reads, a preliminary analysis of the data indicates

68:11 that none of the soldiers had a hearing loss

68:12 exceeding the criterion of acceptability after 24

68:13 hours and that none of the soldiers incurred a TTS

68:14 after five minutes that exceeded the CHABA

68:15 criterion. This analysis indicates that nonlinear

68:16 earplugs provide acceptable hearing protection

68:17 especially when one considers that the alternative

68:18 presently being used is to not wear hearing

68:19 protection, did I read that right?

68:20 A. Yes.

68:21 Q. And then he goes on to say, as a result

69:01 of this experiment, the French Army is presently

69:02 issuing a request for proposal for 300,000

69:03 earplugs. It's probable that the earplug would be

69:04 manufactured by the same company that manufactures

69:05 the EAR earplug, do you see that?

69:06 A. Yes.

69:07 Q. Going down in that paragraph,

69:08 Mr. Garinther talks about different alternatives

69:09 for how the nonlinear earplug might end up being

69:10 designed. Do you see the three bullets at the

69:11 bottom?

69:12 A. Yes.

69:13 Q. So, he states, since the nonlinear

69:14 earplug provides essentially no attenuation against

69:15 high level steady-state noise, such as that

69:16 produced by armored vehicles, it would still be

69:17 - 70:14 Merkley, John 2020-02-26 1:39

69:17 necessary to provide the soldiers with normal

69:18 earplugs. The configuration issue centers about

69:19 providing the soldiers with, and then there are

69:20 three options in bullets, right?

69:21 A. Correct.

70:01 Q. The first is a nonlinear earplug, and

70:02 then a separate normal earplug, right? So, that's

70:03 essentially two different plugs?

70:04 A. Correct.

70:05 Q. The second one is a nonlinear earplug in

70:06 which the two tiny holes can be closed or covered,

70:07 right?

70:08 A. (Nodding head yes.)

70:09 Q. Did I read that right?

70:10 A. Yes.

70:11 Q. And then the third one is a reversible

70:12 earplug with a nonlinear earplug at one end and a

70:13 normal earplug at the other, right?

70:14 A. Correct.

71:20 - 72:13 Merkley, John 2020-02-26 1:38

71:20 Q. Okay. And then Mr. Garinther goes on Re: [71:20 to 72:13] OVERRULED

71:21 with his recommendation at the end, and he says, Pltf Obj 611

72:01 this is on page 5, Recommendation: It's the

72:02 recommendation of the undersigned that this

72:03 nonlinear earplug be considered for use by the Army

72:04 since its use by weapon crews will reduce hearing

72:05 loss among soldiers while permitting them to hear

72:06 voice commands and combat-related sounds, did I

72:07 read that right?

72:08 A. Yes.

72:09 Q. So, in 1998 at least, Mr. Garinther is

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 47 of 102
72:10 recommending to the Army that they move forward

72:11 with a nonlinear earplug?

72:12 MR. BUCHANAN: Objection to form.

72:13 THE WITNESS: Yes.

72:15 - 73:03 Merkley, John 2020-02-26 1:35

72:15 Q. Do you -- do you know whether subsequent Re: [72:15 to 73:03] SUSTAINED

72:16 to these trips to ISL France by Mr. Garinther the Pltf Obj Foundation; 602; 611

72:17 military requested that Aearo manufacture a

72:18 nonlinear earplug for use in the military?

72:19 MR. BUCHANAN: Objection to the form and

72:20 foundation.

72:21 THE WITNESS: So, do I know? I've --

73:01 I've have seen documents that indicate that, yes,

73:02 they requested that from Aearo, but I -- other than

73:03 that, I don't know.

73:05 - 74:02 Merkley, John 2020-02-26 1:53

73:05 Q. You didn't participate in those?

73:06 A. I did not participate in those.

73:07 Q. What does your review of documents

73:08 indicate the military requested from Aearo in a

73:09 nonlinear earplug?

73:10 A. I don't -- I don't remember.

73:11 Q. Okay. Have you ever spoken to Doug Ohlin

73:12 about whether he requested a dual-ended, nonlinear

73:13 earplug from Aearo?

73:14 A. No.

73:15 Q. Do you --

73:16 A. Not that I recall.

73:17 Q. Have you ever spoken to anyone in the

73:18 military about whether they requested a dual-ended,

73:19 nonlinear earplug from Aearo?

73:20 A. No. When I came in, the dual-ended

73:21 earplug was -- was already produced, so I -- I

74:01 don't know, you know, all that went on to get that

74:02 dual-ended earplug.

75:13 - 75:21 Merkley, John 2020-02-26 0:27

75:13 Q. LTC Merkley, what we have marked as

75:14 Exhibit 6 is a series of email communications that

75:15 were produced to us by the -- the military in this

75:16 case, and I believe they're sort of out of order

75:17 and just kind of --

75:18 A. Um-hum.

75:19 Q. -- they don't track a -- a single

75:20 conversation over a linear period of time, but I'll

75:21 try to direct you around as best I can.

76:12 - 77:06 Merkley, John 2020-02-26 1:44

76:12 Q. Okay. If you turn to the second page of

76:13 the Exhibit 6 and go to the bottom email, there's

76:14 an email from Doug Ohlin to a few other people

76:15 dated April 13th, 1999, do you see that?

76:16 A. Yes.

76:17 Q. Who is Wayne -- the recipients are Wayne

76:18 Loyborg, David Chandler, and then I'm -- I'm not

76:19 sure, there's just an email address there, but who

76:20 is Wayne Loyborg?

76:21 A. I've -- I've heard his name. I believe

77:01 he's an audiologist.

77:02 Q. Civilian or in the military?

77:03 A. I -- I don't know.

77:04 Q. And who is David Chandler?

77:05 A. David Chandler was an Army active duty

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 48 of 102
77:06 audiologist.

77:07 - 77:09 Merkley, John 2020-02-26 0:08

77:07 Q. And do you recognize that last email

77:08 address?

77:09 A. I -- I don't.

77:10 - 77:12 Merkley, John 2020-02-26 0:04

77:10 Q. And then below that, there's Martin

77:11 Robinette?

77:12 A. Right.

77:13 - 77:14 Merkley, John 2020-02-26 0:06

77:13 Q. Who's Martin Robinette?

77:14 A. He is an active duty Army audiologist.

77:15 - 78:04 Merkley, John 2020-02-26 1:43

77:15 Q. Okay. In April of 1999, Doug Ohlin

77:16 writes to that group and says, the production

77:17 samples Aearo sent me were at least a quarter of an

77:18 inch too long. I took the liberty in cutting down

77:19 the samples I'm sending you under a separate cover.

77:20 The production samples didn't fit in the standard

77:21 earplug hearing case, didn't take advantage of a

78:01 design that could minimize wind noise and, most

78:02 importantly, were hit by the Kelvar helmet chin

78:03 strap when it was fastened, did I read that right?

78:04 A. Yes.

78:05 - 78:09 Merkley, John 2020-02-26 0:19

78:05 Q. If you turn back a page to the front,

78:06 there's an email from Brian Myers at a Compuserve

78:07 email address to Doug Ohlin dated April 8th, 1999,

78:08 do you see that?

78:09 A. Um-hum.

78:10 - 78:11 Merkley, John 2020-02-26 0:04

78:10 Q. Do you know who Brian Myers is?

78:11 A. I don't.

78:12 - 78:21 Merkley, John 2020-02-26 0:27

78:12 Q. Okay. The email says, Doug, and then the

78:13 second paragraph says, I spoke with Dick Knauer who

78:14 believes that we can probably shorten the plug by

78:15 the one-quarter inch required to fit your current

78:16 container. The designer will look at this when he

78:17 gets back from vacation on the 19th. It may help

78:18 to expedite the redesign if we could get a storage

78:19 container from you, and then he gives the contact

78:20 information for Dick Knauer, do you see that?

78:21 A. Um-hum.

79:08 - 79:15 Merkley, John 2020-02-26 0:20

79:08 Q. Okay. Prior to today, did you know that

79:09 the Combat Arms Version 2 was shortened a quarter

79:10 of an inch?

79:11 A. No.

79:12 Q. Okay. You had no personal involvement in

79:13 any discussions regarding whether to shorten the

79:14 Combat Arms Version 2?

79:15 A. No.

79:16 - 80:06 Merkley, John 2020-02-26 1:31

79:16 Q. If you flip to the -- what is the third

79:17 page of Exhibit 6, you'll see another email from

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 49 of 102
79:18 Doug Ohlin, and this one is dated approximately one

79:19 month later in May of 1999, do you see that --

79:20 A. Um-hum.

79:21 Q. -- at the bottom? And it says, Belva,

80:01 the manufacturer, Aearo, got back to us with

80:02 acceptable production samples. Do you require a

80:03 pair? I'm curious as to the status of our request.

80:04 Is there anything you need, Doug? Did I read that

80:05 right?

80:06 A. Yes.

80:07 - 80:09 Merkley, John 2020-02-26 0:02

80:07 Q. Who is -- are you familiar with someone

80:08 named Belva Hoffman?

80:09 A. I am not, no.

80:16 - 81:07 Merkley, John 2020-02-26 1:45

80:16 Q. LTC Merkley, we've given you a document

80:17 that we marked as Exhibit 7, which is titled

80:18 ARL-HRED Hearing Protection Device Assess- --

80:19 Assessments in Reverberating Environments, do you

80:20 see that?

80:21 A. Yes.

81:01 Q. It was prepared by the Army Research

81:02 Laboratory Hearing Research & Engineering

81:03 Directorate; is that right?

81:04 A. Yes.

81:05 Q. What is the ARL-HRED?

81:06 A. It's a -- a division within the Army

81:07 Research Laboratory.

81:08 - 81:11 Merkley, John 2020-02-26 0:13

81:08 Q. And at the very top, it's a little faded,

81:09 but it looks like this was a report that was

81:10 prepared about two months after the Doug Ohlin

81:11 email we just looked at, but on June 30th, 1999?

81:19 - 82:09 Merkley, John 2020-02-26 1:34

81:19 THE WITNESS: Yes.

81:20 BY MR. WASDIN:

81:21 Q. The -- looking at the first page, there's

82:01 a paragraph titled, Overview, do you see that?

82:02 A. Yes.

82:03 Q. And it says, the ARL Human Research &

82:04 Engineering Directorate initiated a quick response

82:05 effort to collect data on several hearing

82:06 protection devices in support of John King, the

82:07 AMC-FAST Science Advisor at SETAF, Vicenza, Italy,

82:08 did I read that right?

82:09 A. Yes.

82:10 - 82:11 Merkley, John 2020-02-26 0:07

82:10 Q. Do you know Mr. King?

82:11 A. I don't.

82:20 - 83:04 Merkley, John 2020-02-26 0:14

82:20 Q. And then the next sentence goes on to

82:21 say, the primary objective of the effort was to

83:01 collect data on the French design Combat Arms

83:02 Earplug being manufactured in the U.S. by the Aearo

83:03 Company, Indianapolis, Indiana, right?

83:04 A. Correct.

83:05 - 83:07 Merkley, John 2020-02-26 0:06

83:05 Q. Okay. So, in June of 1999, at least, ARL Re: [83:05 to 83:07] SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 50 of 102
83:06 is running its own testing on the Combat Arms Pltf Obj 602; 611; Foundation

83:07 Earplug?

83:10 - 83:10 Merkley, John 2020-02-26 0:00

83:10 THE WITNESS: Yes. Re: [83:10 to 83:10] SUSTAINED

Pltf Obj 602; 611; Foundation

83:12 - 84:12 Merkley, John 2020-02-26 1:22

83:12 Q. That's what this document indicates?

83:13 A. That's what it says, yes.

83:14 Q. If you flip over to page 2, there's a

83:15 section titled, Data Analysis and Results -- I'm

83:16 sorry, page 4 is what I was trying to go after.

83:17 Operational Significance is the section. Do you

83:18 see the Operational Significance paragraph?

83:19 A. Yes.

83:20 Q. It states, the results of this

83:21 assessment, as depicted in Table 1, suggest that

84:01 for the protective device of primary interest to

84:02 the AMC-FAST Advisor, the Combat Arms Earplug, when

84:03 properly fitted will provide acceptable protection

84:04 for most situations when firing up to 276 rounds of

84:05 M16 556 ball ammunition in a hallway-scaled MOUT

84:06 environment (the worst case condition ARL tested in

84:07 the Match-type MOUT training facility); is that

84:08 right?

84:09 A. Correct.

84:10 Q. Can you tell from that description what

84:11 type of tests they were running on the Combat Arms

84:12 at that point in time?

84:15 - 84:18 Merkley, John 2020-02-26 0:07

84:15 THE WITNESS: From this description, yes.

84:16 BY MR. WASDIN:

84:17 Q. And what was it?

84:18 A. They were --

84:21 - 85:11 Merkley, John 2020-02-26 1:44

84:21 THE WITNESS: Okay. Conducting Re: [84:21 to 85:11] OVERRULED;

85:01 a -- well, I would say a health-hazard assessment Pltf Obj 602; 611; Foundation 602 & 611 OBJECTIONS 

85:02 of that earplug firing or under worst-case WITHDRAWN, 3/11/2021

85:03 conditions in a closed-room, MOUT-type environment.

85:04 BY MR. WASDIN:

85:05 Q. And can you tell what the results were,

85:06 at least at a high level here?

85:07 A. According to this, it says that they give

85:08 safe -- you know, what -- that the hearing

85:09 protector provides acceptable protection for firing

85:10 up to 276 rounds of ammunition -- of 556

85:11 ammunition.

86:03 - 86:06 Merkley, John 2020-02-26 0:09

86:03 Q. Okay. Well, at least in this case, it

86:04 looks like the military, ARL was conducting testing

86:05 of the Combat Arms Earplug in June of 1999?

86:06 A. Right.

86:08 - 86:08 Merkley, John 2020-02-26 0:00

86:08 THE WITNESS: Correct.

86:10 - 86:11 Merkley, John 2020-02-26 0:03

86:10 Q. And the determination was essentially Re: [86:10 to 86:11] OVERRULED

86:11 that it works in the worst-case scenario? Pltf Obj 602; 611; Foundation

86:13 - 86:17 Merkley, John 2020-02-26 1:36

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 51 of 102
86:13 THE WITNESS: For up to -- up to a

86:14 certain point.

86:15 BY MR. WASDIN:

86:16 Q. Up to 276 rounds of M16 fire?

86:17 A. Correct.

87:02 - 87:18 Merkley, John 2020-02-26 1:55

87:02 Q. LTC Merkley, I've handed you a document

87:03 that we have marked as Exhibit 8, which is titled,

87:04 Memorandum for Staff Director, Joint Readiness

87:05 Clinical Advisory Board at Fort Detrick, do you see

87:06 that?

87:07 A. Yes.

87:08 Q. In the Subject of that document is a

87:09 request for national stock number in bulk purchase

87:10 of the Combat Arms Earplug, right?

87:11 A. Yes.

87:12 Q. Paragraph 2 on the first page states that

87:13 the Department of Defense Hearing Conservation

87:14 Working Group has recommended that a nonlinear

87:15 earplug configured to the specifications of the

87:16 enclosed production samples be adopted for military

87:17 use, did I read that right?

87:18 A. Yes.

87:19 - 88:06 Merkley, John 2020-02-26 0:25

87:19 Q. Have you ever seen a memorandum like this

87:20 one before, a request for a national stock number

87:21 and purchase of hearing protection?

88:01 A. I have not seen that, no.

88:02 Q. Okay. Do you know what evaluation is

88:03 typically done by the DoD Hearing Conservation

88:04 Working Group, or others in the military, prior to

88:05 requesting a national stock number and purchase?

88:06 A. I'm not --

88:10 - 88:11 Merkley, John 2020-02-26 0:02

88:10 Q. You do not?

88:11 A. No, I don't.

88:17 - 88:19 Merkley, John 2020-02-26 0:04

88:17 Q. Sure. Doug Ohlin is -- is the person

88:18 listed in the signature block --

88:19 A. Correct.

89:10 - 89:16 Merkley, John 2020-02-26 0:22

89:10 Q. Okay. Attached to the request for Re: [89:10 to 89:16] OVERRULED

89:11 purchase is a Justification for a Nonlinear Earplug Pltf Obj 611

89:12 (Combat Arms Earplug), right?

89:13 A. Um-hum.

89:14 Q. And you can skim it, but essentially,

89:15 it's just a write-up of the features and potential

89:16 usability of the Combat Arms plug?

89:18 - 89:18 Merkley, John 2020-02-26 0:06

89:18 THE WITNESS: Correct.

89:20 - 90:15 Merkley, John 2020-02-26 1:52

89:20 Q. The final paragraph on the first page of

89:21 the justification discusses the American military's

90:01 contribution in the development effort of the

90:02 Combat Arms Earplug, right?

90:03 A. Yes.

90:04 Q. It discusses -- well, I'll just read it.

90:05 It says, the American military's contribution in

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 52 of 102
90:06 this development effort has been to recommend an

90:07 American-made earplug, the UltraFit to

90:08 hous- -- house the French filter, the color scheme

90:09 and blast overpressure testing. The single-sized

90:10 UltraFit should accommodate most of our Combat Arms

90:11 users. Moreover, thanks to French ergonomic

90:12 designers, a solution has been provided on how to

90:13 eliminate wind noise while adapting the earplug for

90:14 steady-state noise use, did I read that right?

90:15 A. Yes.

93:15 - 95:04 Merkley, John 2020-02-26 2:19

93:15 Q. Okay. We've talked a lot about Doug

93:16 Ohlin. I know you told me what his role was, but

93:17 did you ever have interactions with him?

93:18 A. I did.

93:19 Q. How did you interact with Mr. Ohlin?

93:20 A. Well, I interacted with him. When I

93:21 first came on active duty, I came to the CHPPM to

94:01 teach a couple of hearing conservation technician

94:02 courses. I interacted with him at -- at that time

94:03 just in -- as an instructor for a course that --

94:04 that they were -- they were holding at Aberdeen.

94:05 I met him at conferences and, you know,

94:06 received updates on the Army's Hearing Conservation

94:07 Program from him. That's about it.

94:08 Q. Was -- was Doug Ohlin a presenter at the

94:09 conferences that you went to with him?

94:10 A. Not usually. It was his staff that were

94:11 presenting. I -- I don't recall him ever being

94:12 a presenter in a presentation, other than I -- we

94:13 received instruction from him related to the wallet

94:14 cards and -- and the educational materials that

94:15 were being put out.

94:16 Q. For the Combat Arms plug?

94:17 A. For the Combat Arms Earplug. I -- I

94:18 remember that.

94:19 Q. So, you have had conversations with

94:20 Mr. Ohlin related to the wallet card and

94:21 instructions for use for the Combat Arms Earplug?

95:01 A. Yes.

95:02 Q. When did you talk to him about that?

95:03 A. Oh, I don't remember exactly. Between

95:04 200- -- probably 2001 and 2004 or '5.

95:05 - 95:18 Merkley, John 2020-02-26 1:05

95:05 Q. What were the context for those

95:06 conversations?

95:07 A. Oh, just at -- at the conference about,

95:08 you know, the -- how to get hearing protectors, how

95:09 to -- not -- not so much on how to fit them,

95:10 although I -- well, yeah. You know, we -- we got

95:11 instructions on how to order them, who to -- who to

95:12 order them from in terms of for -- for

95:13 government -- government sales and -- and then

95:14 issues related to -- early in their development

95:15 issues related to insufficient stock of that

95:16 particular hearing protector because of bulk

95:17 purchases from other services and what to do to get

95:18 hearing protectors.

95:19 - 96:01 Merkley, John 2020-02-26 1:36

95:19 Q. What was your role at the time?

95:20 A. I was the chief of the Army Hearing

95:21 Program at or the Army Hearing Conservation Program

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 53 of 102
96:01 and Audiology Clinic at Fort Drum.

96:06 - 98:09 Merkley, John 2020-02-26 2:49

96:06 Q. LTC Merkley, we've handed you a document Re: [96:06 to 98:09] OVERRULED

96:07 marked Exhibit 9, and can you tell me if you Pltf Obj 602; 611 [98:4-9]

96:08 recognize that?

96:09 A. Yes.

96:10 Q. What is that?

96:11 A. It's a wallet -- it's one of the wallet

96:12 cards that was developed.

96:13 Q. You mentioned that in your conversations

96:14 with Doug Ohlin regarding instructions that you

96:15 discussed the wallet card with him on those

96:16 occasions, did I remember that?

96:17 A. Right.

96:18 Q. Okay.

96:19 A. Now, I -- I want to make it clear,

96:20 this -- these weren't necessarily one-on-one

96:21 discussions, but discussions at a -- a meeting with

97:01 a group.

97:02 Q. Okay. Who were the people that were in

97:03 the group?

97:04 A. It would have been military audiologists.

97:05 Q. Like yourself who were the head of some

97:06 program --

97:07 A. Um-hum.

97:08 Q. -- at a different installation?

97:09 A. Right.

97:10 Q. Okay. If you look at the wallet card,

97:11 beside the pictures, there is an image on the right

97:12 of the plug with the flange folded back on the

97:13 opposite end?

97:14 A. Correct.

97:15 Q. Did you ever discuss whether or not to

97:16 fold the flanges back on the opposite end of the

97:17 plug with Doug Ohlin?

97:18 A. I remember Doug Ohlin giving us

97:19 instruction on how to fit the earplug.

97:20 Q. What did he say?

97:21 A. And he -- he said if you have -- well, I

98:01 don't remember his exact words, but I remember, you

98:02 know, if you needed to, you could fold back the

98:03 flange on the earplug to get a good fit.

98:04 Q. And so, Doug Ohlin was telling the

98:05 program managers at the various installations in

98:06 the country that if they needed to fold back the

98:07 flanges on one side of the plug, they could do so

98:08 to get a good fit?

98:09 A. Yes.

98:13 - 99:20 Merkley, John 2020-02-26 1:07

98:13 Q. During his oral discussion of that Re: [98:13 to 99:11] OVERRULED

98:14 fitting procedure, did he limit that technique to Pltf Obj 602; 611

98:15 any particular group of service members, or was it

98:16 agnostic as to who they were and what their ear

98:17 canal size was or anything like that?

98:18 A. I don't --

98:19 MR. BUCHANAN: Objection to form and

98:20 foundation.

98:21 THE WITNESS: Yeah, I don't -- I don't

99:01 remember it being specific to a particular group of

99:02 people.

99:03 BY MR. WASDIN:

99:04 Q. So, as you recall, the instruction you

99:05 got from Doug Ohlin, it was if you need to, you can

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 54 of 102
99:06 fold back the flange to fit the plug, and he didn't

99:07 limit that to one particular size ear canal or

99:08 another?

99:09 A. Correct.

99:10 MR. BUCHANAN: Objection. Form.

99:11 BY MR. WASDIN:

99:12 Q. And those conversations, I think you

99:13 said, were happening in the '01 to '05 time period?

99:14 A. Right.

99:15 Q. And was the point of that conversation in

99:16 the group setting that the program managers at the

99:17 various installations would then take that

99:18 information and go back to their particular

99:19 facility and implement it?

99:20 A. Yes.

100:02 - 101:07 Merkley, John 2020-02-26 1:19

100:02 Q. You gave a lecture at the NHCA conference Re: [100:02 to 101:07] SUSTAINED

100:03 last week, right? Pltf Obj 402; 403; 404;

100:04 A. I did. Bolstering

100:05 Q. What was your topic?

100:06 A. My topic was just in time learning --

100:07 Q. You played --

100:08 A. -- and micro learning, hearing, yeah.

100:09 Q. You played a video of a guy named Elliott

100:10 Berger during your speech --

100:11 A. I did.

100:12 Q. -- am I remembering that right?

100:13 A. Yes.

100:14 Q. Who is Elliott Berger?

100:15 A. Elliott Berger is -- I think he is the

100:16 principal engineer at 3M at their test lab, hearing

100:17 protection testing lab.

100:18 Q. Do you know Elliott?

100:19 A. I do.

100:20 Q. How long have you known Mr. Berger?

100:21 A. I have -- well, I have known him -- I've

101:01 known of him for, I don't know, 20 years or so.

101:02 I've had more personal interactions with him in the

101:03 last eight years just as a member of the -- the

101:04 Council for Accreditation in Occupational Hearing

101:05 Conservation and his work in different chapters and

101:06 regulations that go into the hearing conservation

101:07 manual, his work on the ANSI working group.

102:05 - 102:20 Merkley, John 2020-02-26 1:39

102:05 Q. I'll try -- let me ask the question again Re: [102:05 to 102:20] SUSTAINED

102:06 just so we get a Q and A. But what are some of Pltf Obj 402; 403; 404;

102:07 Mr. Berger's contributions to the national Bolstering

102:08 hearing -- conservation hearing that you're aware

102:09 of?

102:10 MR. BUCHANAN: I have the same objection.

102:11 Form and foundation.

102:12 THE WITNESS: Well, he's a well-known

102:13 figure in hearing conservation. He is the editor

102:14 of the noise manual. He's contributed to multiple

102:15 chapters on hearing conservation in the United

102:16 States and has been recognized at -- at the

102:17 National Hearing Conservation Association as such.

102:18 BY MR. WASDIN:

102:19 Q. Has he won awards for that?

102:20 A. He has.

103:08 - 104:07 Merkley, John 2020-02-26 1:05

103:08 Q. Do you know whether Mr. Berger has ever Re: [103:08 to 104:07] SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 55 of 102
103:09 worked with members of the military to help the Pltf Obj 402; 403; 404;

103:10 military advance its hearing conservation mission? Bolstering

103:11 A. I have seen documents between he and Doug

103:12 Ohlin, but that's the extent of what I've -- what I

103:13 know about with regard to hearing pro- -- his

103:14 involvement in hearing protection in the military.

103:15 Q. Just based on the documents that you've

103:16 seen, was he working with Doug Ohlin on a

103:17 particular project?

103:18 A. I -- yes. I believe he was working

103:19 on -- with Doug Ohlin on this Combat Arms Earplug

103:20 project.

103:21 Q. Okay. Given what you know about

104:01 Mr. Berger and the contributions he's made to

104:02 national hearing conservation, does it surprise you

104:03 that Doug Ohlin would work with him to develop a

104:04 product for the military?

104:05 MR. BUCHANAN: Objection to form and

104:06 foundation.

104:07 THE WITNESS: No.

105:04 - 107:05 Merkley, John 2020-02-26 2:05

105:04 Q. LTC Merkley, I want to go back to the Re: [105:04 to 107:05] OVERRULED

105:05 discussion we were having regarding your Pltf Obj 611 [ 106:12-107:2]

105:06 communications with Doug Ohlin in the '01 to '05

105:07 time period regarding fitting the Combat Arms

105:08 Version 2.

105:09 A. Um-hum.

105:10 Q. I think you said these discussions would

105:11 take place at the National Hearing Conservation

105:12 Association?

105:13 A. No. They would take place usually at the

105:14 military audiology short course, which was a -- a

105:15 conference or a -- well, they -- they called it a

105:16 work -- a course of Army -- Army audiologists

105:17 would -- would come together and get instruction

105:18 from leadership, present presentations on things

105:19 that were happening in -- in the military, and

105:20 usually, we would get an update from the Hearing

105:21 Conservation Program on, you know, what -- how

106:01 things were going and, you know, what was -- what

106:02 was new that we needed to pay attention to.

106:03 Q. And at the time, you were the chief

106:04 audiologist at Fort Carson?

106:05 A. Correct. No, I'm sorry. Fort Drum.

106:06 Q. Fort Drum. Okay. Who else -- would you

106:07 have had peers that were the chief audiologists at

106:08 other installations --

106:09 A. Oh, yeah.

106:10 Q. -- that would also attend those meetings?

106:11 A. Right.

106:12 Q. Can you recall who else that would have

106:13 been your peers at other installations would have

106:14 been at the meetings with Doug Ohlin when he

106:15 discussed the flange fold?

106:16 A. I --

106:17 MR. BUCHANAN: Objection to the form.

106:18 THE WITNESS: Yeah, most of the Army

106:19 audiologists, senior audiologists down to junior

106:20 audiologists. I can't recall exactly who was

106:21 there, but usually the -- most of the military

107:01 audiologists. Not just in the Army, but across the

107:02 Navy and the Air Force as well --

107:03 BY MR. WASDIN:

107:04 Q. Okay.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 56 of 102
107:05 A. -- would attend that meeting.

107:21 - 110:21 Merkley, John 2020-02-26 2:24

107:21 Q. Okay. Once you would have gotten that Re: [107:21 to 110:21] OVERRULED

108:01 guidance at the audiology short course, was the Pltf Obj Foundation [108:7-108:15]; 602; 611 [107:21-108:15]

108:02 expectation that you would then take it back to

108:03 Fort Drum and implement it with the folks who fit

108:04 earplugs there?

108:05 A. Yes.

108:06 MR. BUCHANAN: Objection to form.

108:07 BY MR. WASDIN:

108:08 Q. And was that true for all of the

108:09 installation managers who were there, they were

108:10 going to take that guidance back to whatever

108:11 installation they were responsible for and

108:12 implement it?

108:13 MR. BUCHANAN: Objection. Foundation and

108:14 form.

108:15 THE WITNESS: Yes.

108:16 BY MR. WASDIN:

108:17 Q. Okay. When -- when you got back to Fort

108:18 Drum at some point after that, did you, indeed,

108:19 train the -- who are the folks at Fort Drum or

108:20 elsewhere that would actually be fitting individual

108:21 service members with earplugs?

109:01 A. Well, we would -- we trained all of our

109:02 technicians.

109:03 Q. Technicians, that's what I was looking

109:04 for.

109:05 A. Yeah. So, our hearing technicians, but

109:06 we also trained -- we conducted training for unit

109:07 hearing program -- at -- at the time, they were

109:08 called Hearing Conservation Program officers. I'm

109:09 sure there's a reference to that in the DA-PAM, but

109:10 every company is supposed to have a Hearing

109:11 Conservation Program officer, and a part of that,

109:12 their training would be how to fit hearing

109:13 protection.

109:14 Q. Okay. So, I think I understand. In one

109:15 bucket are the technicians who would fit individual

109:16 service members as they were distributing hearing

109:17 protection?

109:18 A. Correct.

109:19 Q. And then in the other one, bucket, you

109:20 mentioned, it was a unit Hearing Conservation

109:21 Program officer who would be with a -- a group of

110:01 service members going forward and have that

110:02 experience?

110:03 A. Right.

110:04 Q. Okay. You trained both of those groups

110:05 of people?

110:06 A. Yes.

110:07 Q. And when you trained the technicians at

110:08 Fort Drum, did you include the information you

110:09 received from Doug Ohlin regarding folding back the

110:10 flanges as needed to achieve a good fit?

110:11 A. Yes.

110:12 MR. BUCHANAN: Objection to form.

110:13 BY MR. WASDIN:

110:14 Q. Did you limit your instruction to any

110:15 particular size ear canal?

110:16 MR. BUCHANAN: Objection to form.

110:17 THE WITNESS: No. I don't -- I don't

110:18 recall that.

110:19 BY MR. WASDIN:

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 57 of 102
110:20 Q. Okay. Is that also true for the unit

110:21 Hearing Conservation Program officers, you gave

111:01 - 111:09 Merkley, John 2020-02-26 0:23

111:01 them the instruction that they could fold back the

111:02 flanges as needed to achieve a good fit?

111:03 MR. BUCHANAN: Objection to form.

111:04 THE WITNESS: Yes.

111:05 BY MR. WASDIN:

111:06 Q. And did you limit that instruction by

111:07 size of ear canal?

111:08 MR. BUCHANAN: Same objection.

111:09 THE WITNESS: No.

119:19 - 120:07 Merkley, John 2020-02-26 1:37

119:19 Q. Okay. Well, then fast forwarding to the

119:20 time period when you are in charge of audiology at

119:21 Fort Drum. When in a service member's career, I

120:01 guess, would they receive a piece of hearing

120:02 protection and then be fit with it?

120:03 A. We fit at Fort Drum any individuals when

120:04 they were coming to the installation, so

120:05 we -- we provided hearing protection fit or hearing

120:06 health education and hearing protection fitting

120:07 at in-processing to the installation.

120:12 - 121:11 Merkley, John 2020-02-26 1:46

120:12 Q. Okay. And is -- when you say when they

120:13 arrive at the facility, is that sort of like the

120:14 first stop after basic training?

120:15 A. No. It depends. It -- it could be right

120:16 after basic training. It may be that they're

120:17 PCS'ing.

120:18 Q. Okay.

120:19 A. Having -- changing duty stations and

120:20 moving from one installation to Fort Drum. Then

120:21 when they get to that installation, there's an

121:01 in-processing part, and part of that in-processing

121:02 includes a medical in-processing, and they would

121:03 receive a hearing test, get fitted with hearing

121:04 protection and a small class on hearing

121:05 conservation.

121:06 Q. Would the fitting with hearing protection

121:07 as part of the intake process be done by the

121:08 technicians we talked about earlier?

121:09 A. Either the technicians or the audiologist

121:10 on site, yes.

121:11 Q. Okay.

121:18 - 122:11 Merkley, John 2020-02-26 1:41

121:18 Q. Okay. So, some are brand new in the

121:19 military; some may have been there for a

121:20 while --

121:21 A. Right.

122:01 Q. -- but whenever you get a transition of

122:02 your class or duty station -- regardless of how

122:03 long you have been in the Army, when you show up at

122:04 Fort Drum, while you were there, one of the first

122:05 things that happened was the medical exam that

122:06 included fitting hearing protection?

122:07 A. Correct.

122:08 Q. And was that done for all service

122:09 members?

122:10 A. Everybody that came through

122:11 in-processing.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 58 of 102
122:12 - 123:12 Merkley, John 2020-02-26 1:42

122:12 Q. Was there a training component during Re: [122:12 to 123:12] OVERRULED

122:13 that intake on how to fit themselves with earplugs Pltf Obj 611 [122:21-123:12]

122:14 going forward?

122:15 A. Yes.

122:16 Q. And would -- was it your expectation that

122:17 the audiologist or the technicians would have given

122:18 the service members the same fitting tips that you

122:19 had provided them?

122:20 A. Right. Yes.

122:21 Q. And that would include that if they

123:01 needed to, they could fold back the flanges?

123:02 MR. BUCHANAN: Objection to form and

123:03 foundation.

123:04 THE WITNESS: If -- if they were fitted

123:05 with a Combat Arms Earplug. We did not routinely

123:06 fit the Combat Arms Earplug for in-processing.

123:07 BY MR. WASDIN:

123:08 Q. Got it. If their earplug was the Combat

123:09 Arms Version 2, their training would have included

123:10 the option to fold back the flanges as needed to

123:11 get a good fit?

123:12 A. Yes.

123:16 - 123:21 Merkley, John 2020-02-26 0:14

123:16 Q. Looking at the wallet card, which was

123:17 marked as Exhibit 9, the second bullet at the

123:18 bottom mentions the option to fold back the flanges

123:19 on the plug, and then there's an image of it,

123:20 right?

123:21 A. Correct.

124:07 - 124:16 Merkley, John 2020-02-26 1:32

124:07 Q. On the wallet card, there is a reference

124:08 to very large ear canals. So, it says for very

124:09 large ear canals, fold opposing plug back?

124:10 A. Correct.

124:11 Q. Where did the -- that language relating

124:12 to very large ear canals come from?

124:13 A. I don't know.

124:14 Q. And I guess I'm asking because you said

124:15 earlier that the guidance you got was agnostic as

124:16 to ear canal size, right?

124:18 - 124:18 Merkley, John 2020-02-26 0:00

124:18 THE WITNESS: Right.

125:03 - 125:06 Merkley, John 2020-02-26 0:13

125:03 Q. Do you know if the military did its own

125:04 analysis of what size ear canals were likely to

125:05 benefit from a fold of the flange?

125:06 A. I'm not -- not that I recall.

125:07 - 125:09 Merkley, John 2020-02-26 0:02

125:07 Q. The military drafted the wallet card Re: [125:07 to 125:09] SUSTAINED

125:08 though, right? Pltf Obj 611

125:09 A. Yes.

125:14 - 125:18 Merkley, John 2020-02-26 0:06

125:14 MAJOR EVANS: And can we just clarify

125:15 real quick, this is the Army's wallet card,

125:16 correct? Not the --

125:17 THE WITNESS: It is the -- it is the

125:18 Army's wallet card, yeah.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 59 of 102
126:01 - 126:08 Merkley, John 2020-02-26 0:14

126:01 Q. I should do better about that. The Re: [126:01 to 126:08] OVERRULED

126:02 wallet card that we marked as Exhibit -- Pltf Obj 602 [126:07-126:13]; incomplete COMPLETENESS OBJECTION

126:03 A. Nine. WITHDRAWN, 3/11/2021

126:04 Q. -- 9 is -- was created by USACHPPM for

126:05 use in the Army?

126:06 A. Correct.

126:07 Q. Was this wallet card distributed to

126:08 individual service members?

126:11 - 126:13 Merkley, John 2020-02-26 0:07

126:11 THE WITNESS: Individual service members

126:12 that came through the Hearing Conservation Program,

126:13 if -- if the clinic had them available, then yes.

126:15 - 126:18 Merkley, John 2020-02-26 0:10

126:15 Q. Okay. This would be in addition to

126:16 whatever training they received by the technician

126:17 or audiologist when they were being fit?

126:18 A. Right.

126:19 - 126:21 Merkley, John 2020-02-26 0:09

126:19 Q. Other than the wallet card, did the Army

126:20 have other training materials for the Combat Arms

126:21 Version 2 that it would distribute to soldiers?

127:07 - 127:14 Merkley, John 2020-02-26 1:32

127:07 THE WITNESS: You know, I -- I just don't

127:08 recall. I -- I think there was a -- a single sheet

127:09 of paper, but I don't -- you know, like an

127:10 8-and-a-half-by-11 fact sheet, but I don't recall

127:11 using it a lot to just hand out --

127:12 BY MR. WASDIN:

127:13 Q. Okay.

127:14 A. -- to individuals.

127:19 - 129:02 Merkley, John 2020-02-26 1:56

127:19 Q. LTC Merkley, I'll hand you what we just

127:20 marked as Exhibit 11. Is this the single fact

127:21 sheet you were talking about?

128:01 A. I believe so, yes.

128:02 Q. Okay. Other than the wallet card and the

128:03 one-page fact sheet we marked as Exhibit 11, are

128:04 you aware of any other training materials that

128:05 would have been physically distributed to

128:06 individual service members?

128:07 MR. BUCHANAN: Objection to the form of

128:08 the question --

128:09 THE WITNESS: Not -- not that I can

128:10 recall.

128:11 MR. BUCHANAN: -- and foundation.

128:12 BY MR. WASDIN:

128:13 Q. Have you ever seen instructions for the

128:14 Combat Arms Version 2 that were authored by Aearo

128:15 or 3M?

128:16 A. I have not.

128:17 Q. When you were responsible for training

128:18 technicians and hearing conservation officers on

128:19 how to fit the Combat Arms Version 2, you weren't

128:20 relying on any Aearo or 3M instructions; is that

128:21 fair?

129:01 MR. BUCHANAN: Objection to form.

129:02 THE WITNESS: Yes.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 60 of 102
129:04 - 129:10 Merkley, John 2020-02-26 0:13

129:04 Q. Do you know whether the Army ever used

129:05 any instructions or training materials provided by

129:06 Aearo or 3M to train soldiers on how to use the

129:07 Combat Arms Version 2?

129:08 A. I -- I don't know.

129:09 Q. You've never seen it?

129:10 A. I -- I haven't seen it, no.

129:14 - 130:04 Merkley, John 2020-02-26 1:32

129:14 Q. Yes. Let's switch gears a little bit

129:15 here. In addition to the testing that we looked at

129:16 briefly from June of 1999 that was done by Georges

129:17 Garinther, --

129:18 A. Um-hum.

129:19 Q. -- are you aware if the military has done

129:20 other testing on the Combat Arms Version 2 over

129:21 time?

130:01 A. I -- I believe they have. I recall a

130:02 couple of reports --

130:03 Q. Okay.

130:04 A. -- on them, but I --

137:06 - 138:12 Merkley, John 2020-02-26 2:33

137:06 LTC Merkley, Exhibit 13 is a PowerPoint

137:07 presentation that was given by LTC Lorraine Babeu,

137:08 U.S. Army Research Laboratory, Human Research and

137:09 Engineering Directorate at Aberdeen, right?

137:10 A. Um-hum.

137:11 Q. Do you know LTC Babeu?

137:12 A. I -- I do. Not really well, but I -- she

137:13 was an active duty audiologist when -- when I first

137:14 came into the Army.

137:15 Q. What were her principal responsibilities,

137:16 if you know? Did she work at ARL?

137:17 A. I believe she -- well, she was working at

137:18 ARL as -- in a utilization tour following her Ph.D.

137:19 program at -- I believe she went through the

137:20 University of Florida.

137:21 Q. If you look in the bottom left-hand

138:01 corner of the first slide, there's a tiny date on

138:02 it. You probably need a magnifier, but I think it

138:03 says March 18th, 2005?

138:04 A. Correct.

138:05 Q. So, it looks like LTC Babeu is testing

138:06 level-dependent hearing protection devices at

138:07 Aberdeen in -- at least by 2005?

138:08 A. Um-hum.

138:09 Q. And if you flip the page to page 2, the

138:10 bottom slide shows that her testing included

138:11 the -- the Combat Arms Version 2 dual-ended plug?

138:12 A. Correct.

138:13 - 138:15 Merkley, John 2020-02-26 0:03

138:13 Q. Have you ever reviewed testing done by

138:14 LTC Babeu before?

138:15 A. No.

138:21 - 143:04 Merkley, John 2020-02-26 4:49

138:21 Q. And it says, Overview Hearing Protection Re: [138:21 to 143:04] OVERRULED

139:01 Study. Infan- -- infantry soldiers over the course Pltf Obj 702; 602; 611;

139:02 of nine days wore the Combat Arms Earplug, yellow Foundation

139:03 and green side, and the Peltor ComTac earmuff while

139:04 firing the M4 Rifle.

139:05 On each day, soldiers had

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 61 of 102
139:06 pre-and-post-distortion product otoacoustic

139:07 emission (DPOAE) measurements recorded during the

139:08 weapons firing task.

139:09 Soldiers fired 54 each day.

139:10 Noise level at the ear was 155 dBP.

139:11 Did I read that right?

139:12 A. Yes.

139:13 Q. What is, if you know,

139:14 pre-and-post-distortion product otoacoustic

139:15 emission measurements?

139:16 A. Well --

139:17 MR. BUCHANAN: Objection to form and

139:18 foundation.

139:19 THE WITNESS: So, distortion product

139:20 otoacoustic emissions is a type of test of cochlear

139:21 function. A healthy cochlea will produce an

140:01 otoacoustic emission, and so for this, they would

140:02 test otoacoustic emissions prior to shooting, fire

140:03 the weapon, and then test distortion

140:04 product -- distortion product otoacoustic emissions

140:05 following.

140:06 BY MR. WASDIN:

140:07 Q. Wearing the Combat Arms after --

140:08 A. After -- wearing the Combat Arms Earplug

140:09 while firing, yes.

140:10 Q. Does otoacoustic emission testing tell

140:11 you something about whether or not the

140:12 person -- whether or not the noise that they're

140:13 being exposed to is damaging the cochlea?

140:14 MR. BUCHANAN: Objection to form and

140:15 foundation. Overbroad.

140:16 THE WITNESS: It can, yes.

140:17 BY MR. WASDIN:

140:18 Q. At a high level, I think this is kind of

140:19 an oversimplification, but if the otoacoustic

140:20 emissions are the same before and after the noise

140:21 exposure, then there hasn't been damage to the

141:01 cochlea?

141:02 MR. BUCHANAN: Objection to form and

141:03 foundation.

141:04 THE WITNESS: Correct.

141:05 BY MR. WASDIN:

141:06 Q. If you go to page 11, at the bottom,

141:07 there's a slide that says, Results, do you see

141:08 that?

141:09 A. Yes.

141:10 Q. And there's two colors on the graph. One

141:11 says CAE-level-dependent-before, and the next one

141:12 says CAE-level-dependent-after, right?

141:13 A. Correct.

141:14 Q. And then if you flip the page to 12,

141:15 there's a second result slide similar, but it's for

141:16 the non-level dependent. So, it's

141:17 CAE-non-level-dependent-before and then

141:18 CAE-non-level-dependent-after, right?

141:19 A. Correct.

141:20 Q. So, does this look like LTC Babeu tested

141:21 both the green and the yellow end of the Combat

142:01 Arms Earplug?

142:02 MR. BUCHANAN: Objection. Foundation.

142:03 THE WITNESS: Yes.

142:04 BY MR. WASDIN:

142:05 Q. And so, she would measure a service

142:06 member's hearing prior to noise exposure, put the

142:07 earplug in, have them shoot a particular weapon 54

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 62 of 102
142:08 times and then measure the otoacoustic emission

142:09 after that exposure?

142:10 MR. BUCHANAN: Objection. Misstates the

142:11 document.

142:12 THE WITNESS: That's correct. That's

142:13 what it sounds like.

142:14 BY MR. WASDIN:

142:15 Q. So, if you look at -- start on page 12,

142:16 the -- the green end, the non-level-dependent end,

142:17 it looks like, although there's minor variation,

142:18 the DP amplitude is basically the same or a little

142:19 higher after the exposures to noise than before?

142:20 MR. BUCHANAN: I'm sorry, what page are

142:21 you on?

143:01 MR. WASDIN: Twelve.

143:02 BY MR. WASDIN:

143:03 Q. Do you see that?

143:04 A. Yes.

143:11 - 145:02 Merkley, John 2020-02-26 1:24

143:11 Q. I guess let me just ask a different Re: [143:11 to 145:02]

143:12 question then. I just don't understand the Pltf Obj 702; 602; 611;

143:13 testing. Foundation

143:14 What do you want to see on an otoacoustic

143:15 emissions test to determine whether or not there

143:16 was cochlear damage?

143:17 MR. BUCHANAN: Objection. Foundation.

143:18 BY MR. WASDIN:

143:19 Q. You can put that document aside. I just

143:20 want to know, do you want the DP amplitude to be

143:21 higher, or lower, or about the same?

144:01 A. To determine if -- if any damage has been

144:02 done, --

144:03 Q. I guess, yeah.

144:04 A. -- you would want to see the same pre

144:05 versus post.

144:06 Q. Okay. And then looking back at the

144:07 exhibit that I just told you to put aside, I'm

144:08 sorry about that, --

144:09 A. Oh.

144:10 Q. -- but on both the level-dependent end,

144:11 the yellow end, and the green end, the

144:12 non-level-dependent end, does it look like the

144:13 values are about the same before and after?

144:14 MR. BUCHANAN: Objection. Form. Vague,

144:15 about.

144:16 THE WITNESS: Yes, they appear to be the

144:17 same or -- well --

144:18 BY MR. WASDIN:

144:19 Q. Okay.

144:20 A. -- relatively close.

144:21 Q. Okay. So, this is 2005 testing done by

145:01 Lorraine Babeu at Aberdeen Proving Grounds?

145:02 A. Correct.

145:12 - 145:18 Merkley, John 2020-02-26 0:20

145:12 Q. LTC Merkley, I have just given you a

145:13 document marked Exhibit 14, which is a test report

145:14 bearing the insignia of the Army Research

145:15 Laboratory and titled, Modeling of Acoustic

145:16 Pressure Waves in Level-Dependent Earplugs, do you

145:17 see that?

145:18 A. Yes.

145:19 - 146:07 Merkley, John 2020-02-26 0:22

SUSTAINED as to 143:11-17; 

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Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 63 of 102
145:19 Q. The authors are James DeSpirito and Mary

145:20 Binseel, right?

145:21 A. Correct.

146:01 Q. Who is James DeSpirito?

146:02 A. I don't know.

146:03 Q. Who is Mary Binseel?

146:04 A. I don't know.

146:05 Q. Okay. Have you ever seen this report

146:06 before?

146:07 A. I -- no.

146:08 - 146:15 Merkley, John 2020-02-26 0:21

146:08 Q. If you flip to page 1, there's an Re: [146:08 to 146:15]

146:09 Introduction, and it describes that they're going Pltf Obj Foundation

146:10 to perform testing on the dual-ended Combat Arms

146:11 Version 2 essentially, do you see that?

146:12 A. Yes.

146:13 Q. There's a picture of the dual-ended

146:14 Combat Arms Version 2 in the middle of the page?

146:15 A. Right.

148:10 - 149:05 Merkley, John 2020-02-26 1:06

148:10 Q. Yeah, just -- yeah, it's a habit. Re: [148:10 to 149:05]

148:11 Looking at this data, what it tells us is, at least Pltf Obj Foundation

148:12 in the Army's testing in September of 2008, how

148:13 much peak pressure reduction the Combat Arms

148:14 Earplug provides at various levels of impulses

148:15 between 125 and 186.91, do you see that?

148:16 A. Okay. Yes, I see that.

148:17 Q. And just looking at it, does it appear to

148:18 be providing nonlinear protection as the decibel of

148:19 the impulse increases?

148:20 MR. BUCHANAN: Objection to form.

148:21 THE WITNESS: Yes.

149:01 BY MR. WASDIN:

149:02 Q. The higher the impulse level, the higher

149:03 the peak pressure reduction for the Combat Arms

149:04 plug in this testing, right?

149:05 A. Correct.

151:01 - 151:21 Merkley, John 2020-02-26 1:08

151:01 Q. When -- so, look back at the Just the

151:02 Facts doc- -- keep your place there on that

151:03 document for a second, but look back at Just the

151:04 Facts document. Do you know -- this is Exhibit 11.

151:05 Do you know who authored the Just the Facts

151:06 document on the Combat Arms Version 2?

151:07 A. The -- I -- I don't know who the author

151:08 was. It was put out by the Army Public Health

151:09 Center, the Army Hearing Program or the Army

151:10 Hearing Conservation Program, so it was Doug Ohlin

151:11 and his staff.

151:12 Q. If you go down to the column on the left,

151:13 the bottom left of the first page title -- titled,

151:14 Protection Available, --

151:15 A. Um-hum.

151:16 Q. -- about midway through that paragraph it

151:17 says, the nonlinearity begins at about 110 dBP and

151:18 increases with increasing peak pressure level. At

151:19 190 dBP, there's an overall peak reduction of 25

151:20 dB, do you see that?

151:21 A. Yes.

153:03 - 154:15 Merkley, John 2020-02-26 1:04

153:03 Q. In any event, if -- whatever that Re: [153:03 to 154:15] SUSTAINED

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Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 64 of 102
153:04 publication says, if you go back to the Army Pltf Obj 611 [except 154:6-154:1]

153:05 Research Lab testing that we had, that chart

153:06 out --

153:07 A. Um-hum.

153:08 Q. -- it doesn't go up to 190 in this

153:09 particular test, but, indeed, you do see that as

153:10 you approach 190, 186.91, the Combat Arms is

153:11 providing actually a little bit more than

153:12 that --

153:13 A. Correct.

153:14 Q. -- 30.43?

153:15 MR. BUCHANAN: Objection to leading.

153:16 THE WITNESS: Correct. Sorry. I'm

153:17 speaking over you.

153:18 BY MR. WASDIN:

153:19 Q. Yeah. And so, the testing that's being

153:20 done in October of 2008, you know, confirms this

153:21 statement about 190 dB peak in the Just the Facts

154:01 document?

154:02 MR. BUCHANAN: Objection to the leading.

154:03 Foundation.

154:04 THE WITNESS: Yes.

154:05 BY MR. WASDIN:

154:06 Q. And then if you go on, that same sentence

154:07 in the Just the Facts says, testing at a U.S.

154:08 military facility found this nonlinear earplug

154:09 protective up to 190 dB peak, do you see that?

154:10 A. Yes.

154:11 Q. And then if you flip the page, you can

154:12 see that the citation there, the first one is to

154:13 that Dan Johnson study that we looked at a long

154:14 time ago?

154:15 A. Right.

155:03 - 156:03 Merkley, John 2020-02-26 1:51

155:03 Q. What I wanted to ask you about was, this Re: [155:03 to 156:03] SUSTAINED

155:04 statement that testing at a U.S. military facility Pltf Obj 602; 611

155:05 found this nonlinear earplug protective up to 190

155:06 dB peak, that's a statement that's included in the

155:07 Army's Just the Facts document, right?

155:08 MR. BUCHANAN: Objection to form.

155:09 THE WITNESS: Yes.

155:10 BY MR. WASDIN:

155:11 Q. Yeah. And it's -- the source of that

155:12 representation is the Dan Johnson study that he did

155:13 for the Army in 1995?

155:14 MR. BUCHANAN: Objection to the form.

155:15 BY MR. WASDIN:

155:16 Q. Or '96?

155:17 A. It appears to be, yes.

155:18 Q. And so, this is an Army interpretation of

155:19 an Army study that the testing at a U.S. military

155:20 facility found this nonlinear earplug protective up

155:21 to 190 dB peak?

156:01 MR. BUCHANAN: Objection to form.

156:02 Argumentative. Foundation.

156:03 THE WITNESS: Yes.

156:05 - 157:01 Merkley, John 2020-02-26 1:56

156:05 Q. Now, when you go to the 2008 study that Re: [156:05 to 157:01] OVERRULED

156:06 we were just talking about, this is the Exhibit 14, Pltf Obj Foundation

156:07 the Mary Binseel document?

156:08 A. Um-hum.

156:09 Q. If you look -- and we just said this, but

156:10 although it shows that it -- it is providing

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 65 of 102
156:11 protection up at least to 186.91 dB here, right?

156:12 A. Correct.

156:13 Q. But it's providing 30 dBs of reduction,

156:14 and the output of that is that it would reduce 186

156:15 dB peak down to 156.48, right?

156:16 A. Correct.

156:17 MR. BUCHANAN: Objection to form.

156:18 BY MR. WASDIN:

156:19 Q. Okay. 156.48 is still over the 140 dB

156:20 limit that you and I talked about earlier as a sort

156:21 of baseline standard safe impulse limit, right?

157:01 A. Correct.

158:04 - 158:10 Merkley, John 2020-02-26 0:13

158:04 Q. And then when you look at the Just the Re: [158:04 to 158:10] OVERRULED

158:05 Facts document, kind of tying together the -- the Pltf Obj 602

158:06 questions we've been talking about, that reduction

158:07 is actually a little better than what they cite

158:08 there. They're citing only a 25 dB reduction at

158:09 190, right?

158:10 A. Correct.

158:18 - 159:09 Merkley, John 2020-02-26 1:36

158:18 Q. In the Just the Facts document, the Army Re: [158:18 to 159:09] OVERRULED

158:19 is saying that at 190 dB peak, there's an overall Pltf Obj 602; 611; foundation

158:20 peak reduction of only a 25 dB, right?

158:21 A. Correct.

159:01 Q. So, that would take you down to 165?

159:02 A. Correct.

159:03 Q. And they're saying that that's

159:04 demonstrative that the Combat Arms Version 2 is

159:05 protective up to 190 dB, right?

159:06 MR. BUCHANAN: Objection. Form and

159:07 foundation.

159:08 THE WITNESS: That's -- that's what it

159:09 says in the document.

161:08 - 161:12 Merkley, John 2020-02-26 0:12

161:08 Q. So, unless there's some change to fit, Re: [161:08 to 161:12] SUSTAINED

161:09 you'd expect the whatever protection it's providing Pltf Obj 602; 611; 702

161:10 at 190 to be the same on the first exposure and the

161:11 101st exposure?

161:12 A. Correct.

162:01 - 162:04 Merkley, John 2020-02-26 0:09

162:01 Q. So, Exhibit 3 is a testing report done by

162:02 a variety of individuals, one of which Brian Hobbs

162:03 I think you said you knew?

162:04 A. Right.

162:07 - 162:18 Merkley, John 2020-02-26 1:05

162:07 Q. This says, Warfighter Interface Division,

162:08 Battlespace Acoustics Branch. Do you know what

162:09 that is?

162:10 A. I don't. From their -- I believe it's

162:11 the Air Force Research Lab or a branch or a group

162:12 of that laboratory.

162:13 Q. If you open this test report, we talked a

162:14 little bit about the first page of this,

162:15 but -- mine is stapled -- if you'd go to page 5.

162:16 So, on the left, you've got a photo of

162:17 somebody doing a real ear attenuation test, right?

162:18 A. Yes.

163:01 - 164:02 Merkley, John 2020-02-26 1:10

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 66 of 102
163:01 Q. On page 5, there's a table of data that's

163:02 titled Real -- Real Ear Attenuation Test Data (ANSI

163:03 S12.6-1997, Method A) for TH?

163:04 A. Correct.

163:05 Q. And then if you look in the tactical

163:06 headset or TH column on the left, there's a variety

163:07 of different protectors here, but if you go down to

163:08 the Passive subsection, you'll see the CAEP green

163:09 tip and the CAEP yellow tip, do you see those?

163:10 A. Yes.

163:11 Q. This testing that was done in October

163:12 2008 indicates that for the green end of the Combat

163:13 Arms, the NRR mean minus 1 standard deviation is

163:14 21, right?

163:15 A. Correct.

163:16 Q. That's using the Method A --

163:17 A. Um-hum.

163:18 Q. -- ANSI standard, right?

163:19 A. Correct.

163:20 Q. And then for the yellow end, it indicates

163:21 that the NRR mean minus one standard deviation is

164:01 6, right?

164:02 A. Correct.

164:03 - 164:12 Merkley, John 2020-02-26 1:30

164:03 Q. Do you know when a hearing

164:04 protector -- protection device is labeled for

164:05 civilian use, do they use the Method A standard to

164:06 do that?

164:07 A. Well, the -- the noise reduction rating

164:08 label on a hearing protector is not measured to

164:09 S12.6-1997.

164:10 Q. It's measured to the 1974 standard,

164:11 right?

164:12 A. Correct.

166:10 - 167:08 Merkley, John 2020-02-26 1:47

166:10 Q. All right. So, looking at the chart that Re: [166:10 to 167:08] OVERRULED

166:11 is in the October 2008 Air Force testing, when you Pltf Obj 602

166:12 go to two standard deviations, they list the Combat

166:13 Arms Earplug green tip as a 15 NRR, do you see

166:14 that?

166:15 A. Um-hum.

166:16 Q. And then they list the Combat Arms

166:17 Earplug yellow tip as a 3 NRR, do you see that?

166:18 A. Correct.

166:19 Q. So, as of at least October 2008, the

166:20 gov- -- the Air Force, excuse me, has REAT, Real

166:21 Ear Attenuation Test data on both ends of the

167:01 Combat Arms; is that correct?

167:02 MR. BUCHANAN: Objection to form and

167:03 foundation.

167:04 THE WITNESS: Correct.

167:05 BY MR. WASDIN:

167:06 Q. And they have used that data to calculate

167:07 their own NRR for the product?

167:08 A. Correct.

168:02 - 168:11 Merkley, John 2020-02-26 1:34

168:02 Q. Okay. If you flip to page 19, there's a

168:03 section titled 3.3, Discussion, at the top, do you

168:04 see that?

168:05 A. Um-hum.

168:06 Q. And it starts out by saying, the

168:07 continuous noise protection of all devices tested

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 67 of 102
168:08 was reasonable and should provide for a safe

168:09 exposure level for the average user in many noise

168:10 environments up to 105 dB, do you see that?

168:11 A. Yes.

169:04 - 170:01 Merkley, John 2020-02-26 1:59

169:04 Q. Okay. Flipping the page to page Re: [169:04 to 170:01] OVERRULED

169:05 20 -- geez -- it goes on to say, the passive in the Pltf Obj 602

169:06 ear tactical headset, ITE TH work as they should in

169:07 that continuous noise settings provide more

169:08 continuous noise attenuation than the impulse noise

169:09 settings. Table 1 illustrates that the Combat Arms

169:10 Earplug green, intended for continuous noise

169:11 protection, provides very good attenuation and is

169:12 readily distinguished from the Combat Arms P yellow

169:13 intended for impulse noise protection setting, did

169:14 I read that right?

169:15 A. Yes.

169:16 Q. So, as of October of 2008, this list of

169:17 authors doing an Air Force study of the Combat Arms

169:18 determined that it provides very good attenuation

169:19 in continuous noise?

169:20 MR. BUCHANAN: Objection to form and

169:21 foundation.

170:01 THE WITNESS: Yes.

170:03 - 171:13 Merkley, John 2020-02-26 1:18

170:03 Q. If you go to page 21, in addition to

170:04 conducting testing on continuous noise, it looks

170:05 like they also did some air blast overpressure

170:06 measurements for impulse noise, right?

170:07 A. (Nodding head yes.) Yes.

170:08 Q. And if you flip the page to page 22 and

170:09 23, there are images of how they conducted some of

170:10 that testing, do you see those?

170:11 A. Um-hum. Yes.

170:12 Q. Figure 17, in particular, is labeled as

170:13 195 dB blast, do you see that?

170:14 A. Yes.

170:15 Q. And it looks like what they've done is

170:16 put some manequin heads on the ground and exploded

170:17 some sort of explosive within a couple of feet of

170:18 the heads, is that fair?

170:19 A. Yes.

170:20 Q. 195 decibels, are there -- what are these

170:21 weapons, if any, in the military arsenal that would

171:01 create 195 decibel impulse peak?

171:02 MR. BUCHANAN: Objection to the form.

171:03 THE WITNESS: I'm -- I'm not aware of any

171:04 that create 195 decibel peak.

171:05 BY MR. WASDIN:

171:06 Q. It looks like to get that high, you have

171:07 to basically have an explosion happen a few feet

171:08 away from you.

171:09 MR. BUCHANAN: Objection to form.

171:10 THE WITNESS: I --

171:11 BY MR. WASDIN:

171:12 Q. Okay.

171:13 A. I -- I guess, yeah.

171:14 - 172:11 Merkley, John 2020-02-26 1:56

171:14 Q. Okay. Do you know any that Re: [171:14 to 172:11]

171:15 create -- weapons in the military arsenal that Pltf Obj 611

171:16 create 190 dB peak?

171:17 A. That approximate --

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Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 68 of 102
171:18 Q. What are those?

171:19 A. -- 190. Some of the shoulder-fired

171:20 weapon systems.

171:21 Q. Like shoulder fired --

172:01 A. Like the AT4, the 5 -- I'm not sure about

172:02 the law, and then the MAA -- the MAAWS, the

172:03 multipurpose anti-armor, anti-personnel weapon

172:04 system, or the Carl Gustaf if you want to -- it's a

172:05 shoulder-fire recoilless rifle.

172:06 Q. Is that a -- do a lot of people use that

172:07 weapon in the Army?

172:08 A. No. Up until recently, they were only

172:09 fielded in the special operations community, but

172:10 they're currently being fielded now into

172:11 conventional forces.

173:05 - 173:09 Merkley, John 2020-02-26 0:13

173:05 Q. You've examined service members in Iraq? Re: [173:06 to 173:09] OVERRULED

173:06 A. Yes. Pltf Obj 602; 611; foundation

173:07 Q. Do you know how common it would be for

173:08 somebody in a combat setting to come across 190

173:09 decibel impulse peak?

173:15 - 174:02 Merkley, John 2020-02-26 0:21

173:15 A. From my experience. Well, most of the

173:16 IEDs --

173:17 Q. Yeah.

173:18 A. -- would -- would create that level

173:19 of -- of noise. So, when I was in Iraq, it was

173:20 very common, --

173:21 Q. From IED --

174:01 A. -- and I was in Iraq from 2006 through

174:02 200- -- the end of 2006 to 2007.

175:02 - 176:11 Merkley, John 2020-02-26 1:28

175:02 Q. If you flip in this testing report over Re: [175:02 to 176:11] OVERRULED

175:03 to page 26, there's a section for the Results of Pltf Obj 602; 611 [176:4-176:11]; foundation

175:04 the impulse noise testing these authors performed,

175:05 do you see that?

175:06 A. Um-hum.

175:07 Q. It reads, over 100 individual blasts were

175:08 completed on 13 devices over a four-day period.

175:09 Impulse noise attenuation measurements an

175:10 estimated -- as estimated by insertion loss, were

175:11 recorded at two levels of peak pressure, 165 dB and

175:12 195 dB, and then it says it's going to present the

175:13 data in these tables, do you see that?

175:14 A. Um-hum.

175:15 Q. Going over to page 27, there's a table

175:16 that lists the data for the impulse -- the

175:17 insertion loss in response to both 165 dB and 195

175:18 dB explosions, right?

175:19 A. (Nodding head yes.)

175:20 Q. Do you see that?

175:21 A. Correct.

176:01 Q. And it lists it for both the green end

176:02 and the yellow end of the Combat Arms, right?

176:03 A. Yes.

176:04 Q. We don't have to go through them all, but

176:05 in summary, the Air Force had test data on the

176:06 performance of the Combat Arms Earplug, both ends

176:07 of it, at both 165 and 195 dB as of at least

176:08 October 2008?

176:09 MR. BUCHANAN: Objection to form and

176:10 foundation.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 69 of 102
176:11 THE WITNESS: Yes.

176:13 - 176:16 Merkley, John 2020-02-26 0:08

176:13 Q. So, however it performed, whatever Re: [176:13 to 176:16]

176:14 protection it provided at those impulses, that data Pltf Obj 602; 611; foundation

176:15 is in this test report?

176:16 A. Yes.

177:06 - 178:05 Merkley, John 2020-02-26 1:47

177:06 Q. Did you, while in Iraq, observe service Re: [177:06 to 178:05] OVERRULED

177:07 members who had used the Combat Arms Version 2 and Pltf Obj 602; 611; foundation;

177:08 been exposed to noise and then those who had not 702; MIL G7

177:09 worn hearing protection and been exposed to noise?

177:10 A. Yes.

177:11 Q. And did the Combat Arms Version 2 protect

177:12 service members in Iraq?

177:13 MR. BUCHANAN: Objection to form and

177:14 foundation.

177:15 THE WITNESS: I -- I won't be specific on

177:16 the Combat Arms Version 2, but hearing protection

177:17 use did protect the individuals.

177:18 BY MR. WASDIN:

177:19 Q. But you're including the Combat Arms?

177:20 A. Including the Combat Arms Earplug.

177:21 Q. So, what you observed in Iraq was service

178:01 members who did not use hearing protection, had

178:02 greater rates of threshold shifts than those who

178:03 used hearing protection, including the Combat Arms

178:04 Version 2?

178:05 A. Yes.

179:20 - 181:01 Merkley, John 2020-02-26 1:27

179:20 This is an email chain dated October 6,

179:21 2005. Subject RE: Success story regarding the

180:01 Combat Arms Earplug, right?

180:02 A. Correct.

180:03 Q. It was sent from Leanne Cleveland to

180:04 Kathy Gates, Kevin Hannah and a variety of other

180:05 people in the military, including, if you go all of

180:06 the way down to the bottom, you, do you see that?

180:07 A. Yes.

180:08 Q. Who is Leanne Cleveland?

180:09 A. She's an audiologist in the Army; active

180:10 duty.

180:11 Q. Who is Kathy Gates?

180:12 A. Kathy Gates, she -- she is -- was an Army

180:13 audiologist at this time serving in -- at the

180:14 Office of the Surgeon General. I'm not sure she

180:15 was a consultant to Army audiology or to the

180:16 Surgeon General for Army audiology, but I -- I

180:17 don't know if she was a consultant at this time.

180:18 Q. I don't want to ask you about every

180:19 single person here on the cc: line, but are these,

180:20 generally, folks that were involved in military or

180:21 Army hearing conservation?

181:01 A. Yes, all -- all of them.

181:07 - 182:14 Merkley, John 2020-02-26 1:21

181:07 Q. If you just go to this first -- it's a Re: [181:07 to 182:14] SUSTAINED

181:08 very long chain, and I'll tell you that I think it Pltf Obj 403; 602; foundation;

181:09 duplicates itself a few times on the way through, 702; 802 MIL G7

181:10 so I don't want to attempt to track it. But if you

181:11 just go to the first one, it looks like this is an

181:12 email from Leanne Cleveland specifically at least

181:13 to Kathy Gates and Kevin Hannah, copying the rest

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Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 70 of 102
181:14 of the Army audiology community and sharing two

181:15 success stories, right?

181:16 A. Right. Two?

181:17 Q. It says --

181:18 A. Yes. Yes, two. Okay.

181:19 Q. I'm going to read the first one.

181:20 A. Okay.

181:21 Q. Several months ago, I saw an O6 Brigade

182:01 Commander for his post-deployment OIF audiometric

182:02 evaluation. What's -- what's the post-deployment

182:03 OIF audiometric evaluation?

182:04 A. Well, the post-deployment hearing test.

182:05 So, the unit is returning from a deployment, and

182:06 they get a hearing test to determine if -- has

182:07 there been any change in their hearing.

182:08 Q. And what is an O6 Brigade Commander?

182:09 A. An 06 is a Colonel level. A Brigade

182:10 Commander is generally a full-bird Colonel.

182:11 Q. And can we tell anything from the time

182:12 period about where he was likely returning from?

182:13 A. Well, it says he was returning from

182:14 Operation Iraqi Freedom, OIF.

182:19 - 185:11 Merkley, John 2020-02-26 2:24

182:19 Q. Okay. So, this is somebody who had been Re: [182:19 to 185:11] SUSTAINED

182:20 in combat basically -- Pltf Obj 403; 602; foundation;

182:21 A. The -- 702; 802 MIL G7

183:01 Q. -- the O6 Brigade Commander --

183:02 A. Yes.

183:03 Q. -- that was being evaluated? It goes on

183:04 to say, he told me that he hadn't heard of the CAE

183:05 plugs until he was in theatre. He did not know

183:06 what they looked like, but he was determined to get

183:07 them for his entire brigade. He inquired with some

183:08 local Iraqi supply company and ended up purchasing

183:09 what he thought were CAE plugs, but in reality,

183:10 they were only foam plugs.

183:11 Finally, he made some calls back to Fort

183:12 Hood and was able to get his staff to order them

183:13 here and then ship them out to the brigade. They

183:14 were finally received by the soldiers in Iraq

183:15 at -- over four months after they initially

183:16 deployed.

183:17 The COL, the Colonel, told me that he was

183:18 sitting in the back of his HMWVV with his new CAE

183:19 plugs in his ears for the first time when he

183:20 experienced his first IED blast in close range. He

183:21 said that his soldiers in the HMWVV had just been

184:01 grumbling to him about his insistence that they all

184:02 wore their CAE plugs, but that they were all very

184:03 glad that they had their CAEs after the blast, and

184:04 they all wore them every day afterwards. By the

184:05 way, the Colonel had no hearing loss and no

184:06 tinnitus upon redeployment, did I read that right?

184:07 A. Yes.

184:08 Q. Is it -- we talked just a couple of

184:09 minutes ago about a -- basically how loud an IED

184:10 blast would be at close range, so it sounds like

184:11 this is a service member who experienced a

184:12 close-range IED blast while wearing the Combat Arms

184:13 Earplug?

184:14 A. Correct.

184:15 Q. And what Leanne Cleveland is

184:16 determining -- determining is that after that

184:17 event, while wearing those plugs, he had no hearing

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 71 of 102
184:18 loss and no tinnitus?

184:19 A. Correct.

184:20 Q. Is that -- I mean, 190 dB, are there many

184:21 hearing protection devices available to the Army,

185:01 passive earplugs, that would protect against 190 dB

185:02 with no hearing loss and no tinnitus?

185:03 MR. BUCHANAN: Objection. Form, vague.

185:04 At what range?

185:05 BY MR. WASDIN:

185:06 Q. At close range?

185:07 A. Are there a lot of earplugs?

185:08 Q. Right.

185:09 A. I -- I would expect that any of the

185:10 earplugs that were available at this time, if they

185:11 were in use, would have -- have been protective.

185:16 - 185:19 Merkley, John 2020-02-26 0:11

185:16 Q. And this is telling us that the Combat Re: [185:16 to 185:19] SUSTAINED

185:17 Arms Earplug was protective for that exposure? Pltf Obj 403; 602; foundation;

185:18 MR. BUCHANAN: Objection to form. 702; 802 MIL G7

185:19 THE WITNESS: For this, yes.

185:21 - 187:09 Merkley, John 2020-02-26 2:52

185:21 Q. The second success story she shares is, Re: [185:21 to 187:09] SUSTAINED

186:01 at a recent PDHRA Post Deployment Health Pltf Obj 403; 602; foundation;

186:02 Reassessment Survey session -- 702; 802 MIL G7

186:03 A. Where --

186:04 Q. Number 2.

186:05 A. Okay. I'm sorry.

186:06 Q. -- I asked several redeploying 1CAV

186:07 soldiers the following questions re: the CAE plug

186:08 at the request of Aearo. What is a Post Deployment

186:09 Health Reassessment Survey session?

186:10 A. The -- well, every -- every soldier that

186:11 deploys, when they return, that -- they're required

186:12 to complete a health assessment, a post deployment

186:13 health assessment --

186:14 Q. Basically --

186:15 A. -- and -- and now, this was the Post

186:16 Deployment Health Reassessment, so I believe that's

186:17 90 days post deployment. So, they come back. They

186:18 -- they do their Post Deployment Health Assessment,

186:19 and then there's a -- a reassessment.

186:20 Q. What is a 1CAV soldier?

186:21 A. First calvary division, so CAV is a Cav.

187:01 Q. And then later, I'm about to read the

187:02 sentence, but it references an SPC 50 cal gunner.

187:03 What is that?

187:04 A. Where is that?

187:05 Q. The next sentence.

187:06 A. Oh, the S -- like this -- I -- I believe

187:07 what they're referring to is a specialist, the rank

187:08 of specialist who is a 50 -- who was a 50, a gunner

187:09 on a 50-caliber machine gun.

187:15 - 188:07 Merkley, John 2020-02-26 1:43

187:15 Q. Leanne Cleveland in this success story Re: [187:15 to 188:07] SUSTAINED

187:16 goes on to state, I wish all soldiers believed in Pltf Obj 403; 602; foundation;

187:17 the merit of the Combat Arms Earplug like this SPC 702; 802 MIL G7

187:18 50 cal gunner does. (I especially liked his

187:19 comment that he wouldn't change anything about the

187:20 Combat Am -- Combat Arms Earplug -- plug or the

187:21 case, because they "worked for 205 convoys.") Did

188:01 I read that right?

188:02 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 72 of 102
188:03 Q. What is a -- what does it mean to work

188:04 for a 205 convoy?

188:05 A. I -- I read that to mean that it worked

188:06 for 205 convoys. The individual com- -- completed

188:07 205 convoys during their tour.

188:08 - 188:20 Merkley, John 2020-02-26 1:17

188:08 Q. I asked you earlier about, you know, Re: [188:08 to 188:20] SUSTAINED

188:09 performance on shot one versus performance on shot Pltf Obj 403; 602; foundation;

188:10 101, and you said you thought they'd be the same 702; 802 MIL G7

188:11 unless there was an issue with the fit, right?

188:12 MR. BUCHANAN: Objection to the form.

188:13 THE WITNESS: Correct.

188:14 BY MR. WASDIN:

188:15 Q. This is a report from a 50 cal gunner,

188:16 who had been employed into Iraq, that says they

188:17 worked for 205 separate convoys, right?

188:18 MR. BUCHANAN: Objection to form.

188:19 THE WITNESS: That's what it appears to

188:20 say, yes.

191:20 - 192:03 Merkley, John 2020-02-26 0:11

191:20 Q. So, you had personally observed examples

191:21 where service members in Iraq were exposed to large

192:01 impulses that damaged their hearing in one way or

192:02 another?

192:03 A. Yes.

195:06 - 195:19 Merkley, John 2020-02-26 0:23

195:06 Q. Yeah. I think you just said it way Re: [195:06 to 195:19] SUSTAINED

195:07 better than I attempted to, but the essence of it Pltf Obj 403; foundation; MIL

195:08 is when you were in Iraq, most of the cases of G7

195:09 hearing-related injuries you saw stemmed from not

195:10 wearing hearing protection?

195:11 A. Correct.

195:12 MR. BUCHANAN: Objection to form.

195:13 BY MR. WASDIN:

195:14 Q. And that those service members who you

195:15 treated who had worn hearing protection, including

195:16 the Combat Arms Version 2, tended to not have any

195:17 hearing loss?

195:18 MR. BUCHANAN: Objection to form.

195:19 THE WITNESS: Correct.

197:01 - 197:11 Merkley, John 2020-02-26 0:15

197:01 Q. Okay. Have you ever personally used the Re: [197:01 to 197:11] SUSTAINED

197:02 Combat Arms Version 2? Pltf Obj 403; 702; MIL G7

197:03 A. Yes.

197:04 Q. Did it work for you?

197:05 A. Yes.

197:06 Q. Did you need to fold the flanges back to

197:07 get a good fit?

197:08 A. I didn't.

197:09 Q. So, you wore it without the flanges

197:10 folded back, and it worked?

197:11 A. Yes.

197:17 - 198:06 Merkley, John 2020-02-26 1:48

197:17 Q. How often did you wear it in service? Re: [197:17 to 198:06] SUSTAINED

197:18 A. As -- as long as I had it. Pltf Obj 403; 702; MIL G7

197:19 Q. What time period did you have it?

197:20 A. So, I had that earplug -- well, I -- I

197:21 got my first set in -- right around 2000 when they

198:01 were just starting to come out in the military.

198:02 It was at the -- I believe the MASC, the

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 73 of 102
198:03 military audiology short course, so it may have

198:04 been 2001, because I -- I don't remember if I went

198:05 in 2000. In 2001 definitely, and then up until

198:06 the -- the new version came out --

198:13 - 198:17 Merkley, John 2020-02-26 0:12

198:13 Q. So, you wore the Version 2, the Re: [198:13 to 198:17] SUSTAINED

198:14 dual-ended version, during your deployment in Iraq, Pltf Obj 403; 702; MIL G7

198:15 right?

198:16 MR. BUCHANAN: Objection to form.

198:17 THE WITNESS: Yes.

199:09 - 199:10 Merkley, John 2020-02-26 0:09

199:09 Q. You fired weapons with it in? Re: [199:09 to 199:10] SUSTAINED

199:10 A. Yes. Pltf Obj 403; 702; MIL G7

200:07 - 200:10 Merkley, John 2020-02-26 0:05

200:07 Q. There's also a triple-flange earplug

200:08 that's a linear passive earplug that the Army has

200:09 available to it, right?

200:10 A. Right.

204:13 - 204:20 Merkley, John 2020-02-26 0:13

204:13 Q. Okay. You were given, when you first

204:14 joined the National Guard, a triple-flange earplug?

204:15 A. Correct.

204:16 Q. Is that what you refer to when you talk

204:17 about the triple flange in the military?

204:18 A. The triple -- yes.

204:19 Q. Yeah. It's a linear device?

204:20 A. Correct.

205:05 - 207:02 Merkley, John 2020-02-26 2:42

205:05 Q. Do you know what the DD 2216 form is?

205:06 A. Yes.

205:07 Q. What is that?

205:08 A. It's an audiogram.

205:09 Q. Is that --

205:10 A. It's the form that the surveillance or

205:11 monitoring audiogram is documented on.

205:12 Q. Does every -- is this a -- this is the

205:13 surveillance audiogram that's given to service

205:14 members --

205:15 A. Correct.

205:16 Q. -- every year?

205:17 A. Across -- across the DoD.

205:18 Q. And it's -- the output of the

205:19 surveillance audiogram is then memorialized on DD

205:20 form 2216 for that person?

205:21 A. Correct.

206:01 Q. One of the pieces of information that's

206:02 included on a DD 2216 form is the type of personal

206:03 hearing protection used. Are you familiar with

206:04 that?

206:05 A. Yes.

206:06 Q. And then it's a -- a box that lists a

206:07 variety of options?

206:08 A. Correct.

206:09 Q. What --

206:10 (Whereupon, Merkley Deposition Exhibit

206:11 18, DD 2216 Form, marked for identification.)

206:12 BY MR. WASDIN:

206:13 Q. I've redacted out -- I just want to

206:14 basically understand what the box is used for, but

206:15 do you see the box on this particular DD 2216 that

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 74 of 102
206:16 lists the type of hearing protection used?

206:17 A. Yes.

206:18 Q. Let me get to my copy of it. There are a

206:19 variety of options that could be filled in, right?

206:20 A. (Nodding head yes.)

206:21 Q. Who -- who fills in that box?

207:01 A. Generally, it's the technician that

207:02 completes the test.

207:21 - 209:15 Merkley, John 2020-02-26 1:05

207:21 Q. Okay. The box provides seven options, Re: [207:21 to 209:15]

208:01 right? Pltf Obj 602 [208:19-209:2]; 403; foundation

208:02 A. Correct.

208:03 Q. And if you look at the box -- what

208:04 Exhibit Number did I just give you?

208:05 A. Eighteen.

208:06 Q. If you look at Exhibit 18, this box is

208:07 checked as 6 for this person on this date, right?

208:08 A. Correct.

208:09 Q. And 6 corresponds to, Other?

208:10 A. Correct.

208:11 Q. And then if you go over to the left,

208:12 there's a Remarks column, and it notes, Other HPD:

208:13 Combat Arms Earplug, do you see that?

208:14 A. Yes.

208:15 Q. So, if the person is using a Combat Arms

208:16 Earplug, they check, Other, 6, and then reference

208:17 that in the notes?

208:18 A. Correct.

208:19 Q. If the person was using the triple

208:20 flange, the conventional passive product you talked

208:21 about, would they check 2 for triple flange?

209:01 MR. BUCHANAN: Objection.

209:02 THE WITNESS: They would.

209:03 BY MR. WASDIN:

209:04 Q. If they were using single flange, they

209:05 would check 1, right?

209:06 A. Correct.

209:07 Q. For 3, the hand-formed earplug, is that a

209:08 foam-rolled plug?

209:09 A. Yes.

209:10 Q. Four is ear canal caps, right?

209:11 A. Correct.

209:12 Q. Five is noise muffs, right?

209:13 A. Correct.

209:14 Q. And then 7 is none?

209:15 A. Correct.

210:04 - 210:12 Merkley, John 2020-02-26 0:21

210:04 Q. If none is check, what does it mean?

210:05 A. Well, it means -- it means -- it may mean

210:06 that they just weren't fitted on that day, that

210:07 they're not reporting any hearing protection used.

210:08 It doesn't mean that they don't have it.

210:09 Q. It means they're not --

210:10 A. It means --

210:11 Q. -- reporting using it?

210:12 A. -- they're not reporting using it.

211:09 - 212:14 Merkley, John 2020-02-26 1:05

211:09 I -- I also want to clarify one thing.

211:10 When it -- when it reads Combat Arms Earplug --

211:11 Q. Um-hmm.

OVERRULED; 403 

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Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 75 of 102
211:12 A. -- here, this -- there is only one

211:13 choice, and the Combat Arms -- I understand the

211:14 Combat Arms Earplug is a propriety name, but at the

211:15 time the DOEHRS system was developed, Combat Arms

211:16 Earplug referred to a nonlinear-type device.

211:17 Q. Um-hmm.

211:18 A. So, now, if you read Combat Arms Earplug,

211:19 it -- it may be any of the approved nonlinear

211:20 hearing protection devices --

211:21 Q. Understood.

212:01 A. -- that are fielded in the Army or the

212:02 DoD.

212:03 Q. So, the other HBD Combat Arms Earplug

212:04 reference on here is like a drop-down box or

212:05 something for the technician to check?

212:06 A. Yes.

212:07 Q. And they would check that?

212:08 A. They would check that. So yeah, they're

212:09 not typing in Combat Arms Earplug.

212:10 Q. Okay. And it's your understanding they

212:11 would select that drop-down for Combat Arms Earplug

212:12 if the person was wearing any nonlinear hearing

212:13 protection?

212:14 A. Right.

212:17 - 213:02 Merkley, John 2020-02-26 0:16

212:17 Q. For None, for 7 now just to clarify that Re: [212:17 to 213:02] OVERRULED

212:18 one, the reasons why someone's DD Form 2216 might Pltf Obj 602; 403; foundation

212:19 say none include a self-reported they weren't

212:20 wearing hearing protection, right?

212:21 A. Right.

213:01 MR. BUCHANAN: Objection to form.

213:02 THE WITNESS: Right.

213:04 - 213:16 Merkley, John 2020-02-26 1:46

213:04 Q. Or that they weren't fitted with a

213:05 product that day, and the technician put a 7 down?

213:06 A. Correct.

213:07 Q. If they weren't fitted that day for their

213:08 annual audiogram, what are the -- like why wouldn't

213:09 they be fitted at every --

213:10 A. Well, you know, not -- not every clinic

213:11 fits service members when they come in for

213:12 that --

213:13 Q. Got it.

213:14 A. -- appointment. They might fit them at a

213:15 different educational event or at some other

213:16 location.

213:17 - 214:04 Merkley, John 2020-02-26 0:19

213:17 Q. The military -- we talked about this

213:18 earlier, and I was going to come back to it, so now

213:19 I'm going to do it. The military 40-501

213:20 Pamphlet --

213:21 A. Um-hum.

214:01 Q. -- we talked, contains criteria for when

214:02 you should use either single or double protection

214:03 or just avoid a noise entirely?

214:04 A. Correct.

214:16 - 215:14 Merkley, John 2020-02-26 1:45

214:16 Q. Okay. So, the military -- the Army,

214:17 excuse me, has standards on when service members

214:18 should use a single earplug, like the Combat Arms

214:19 Version 2, or where they, instead, should use

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 76 of 102
214:20 double-hearing protection, right?

214:21 A. Yes.

215:01 Q. Double-hearing protection, what does that

215:02 mean?

215:03 A. It means that they're using an -- an

215:04 earplug and another form of hearing protection,

215:05 usually a noise muff.

215:06 Q. So, an earplug in the ear, and then a

215:07 muff on top of that?

215:08 A. Correct.

215:09 Q. If you look at page -- starting on page

215:10 5, section 6.2, Protector Requirements, I believe

215:11 that's the beginning of this section that talks

215:12 about what types of noise merit double-hearing

215:13 protection, am I right about that?

215:14 A. Yes.

216:19 - 217:11 Merkley, John 2020-02-26 1:31

216:19 Q. 6.2 c. in the middle of the page is a

216:20 section titled, Soldiers in Training, Noncombat or

216:21 Nonindustrial Scenarios, right?

217:01 A. Yes.

217:02 Q. And then the first guidance under that

217:03 section is for steady-state noise levels, right?

217:04 A. Correct.

217:05 Q. If you go down to (2), there's a section

217:06 for impulse noise levels there?

217:07 A. Um-hum.

217:08 Q. And impulse noise levels would include

217:09 like weapons fired and things of that nature,

217:10 right?

217:11 A. Right.

218:09 - 219:21 Merkley, John 2020-02-26 1:13

218:09 Q. Okay. And what they say is that for less

218:10 than 140 dB peak, personnel may wear hearing

218:11 protection, if desired?

218:12 A. Correct.

218:13 Q. So, that means up to 139, you don't even

218:14 need hearing protection?

218:15 MR. BUCHANAN: Objection to form.

218:16 BY MR. WASDIN:

218:17 Q. Or it's not required?

218:18 MR. BUCHANAN: Objection.

218:19 THE WITNESS: It's not required.

218:20 BY MR. WASDIN:

218:21 Q. It's not required, so --

219:01 A. Correct. For -- for impulsive noise.

219:02 Q. For impulse noise, yeah. For impulse

219:03 noises 140 to 165 dB peak, the requirement is that

219:04 you have to wear hearing protection, right?

219:05 A. Correct.

219:06 Q. And that would include an earplug, like

219:07 the Combat Arms Version 2?

219:08 A. Yes.

219:09 Q. Or any other earplug in the -- that the

219:10 Army has approved, right?

219:11 A. Correct.

219:12 Q. But for greater than 165 dB, but less

219:13 than or equal to the Z, to the curve Z per mil

219:14 standard 1474 D, personnel must wear earplugs in

219:15 combination with noise muffs or a noise attenuation

219:16 helmet, right?

219:17 A. Correct.

219:18 Q. So, the general rule is if you're going

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 77 of 102
219:19 to be exposed to impulse peaks above 165, you need

219:20 to wear double protection?

219:21 A. Correct.

223:10 - 223:15 Merkley, John 2020-02-26 0:14

223:10 Q. You talked about when you were in Iraq Re: [223:10 to 223:15] SUSTAINED

223:11 that for those folks that you treated that had Pltf Obj 611

223:12 hearing loss, it was typically because of nonuse of

223:13 hearing protection devices?

223:14 MR. BUCHANAN: Objection to form.

223:15 THE WITNESS: Right.

225:21 - 226:20 Merkley, John 2020-02-26 1:40

225:21 Q. LTC Merkley, I just have a few more Re: [225:21 to 226:20] SUSTAINED

226:01 questions before we break for lunch, the first of Pltf Obj 403; 702; MIL G7

226:02 which relates to your own use of the Combat Arms

226:03 Earplug Version 2.

226:04 A. Okay.

226:05 Q. I think you told me that when you used

226:06 the Combat Arms Version 2, you did not need to roll

226:07 back the flanges in order to achieve a proper fit?

226:08 MR. BUCHANAN: Objection to form.

226:09 THE WITNESS: Correct.

226:10 BY MR. WASDIN:

226:11 Q. When you used the Combat Arms Version 2,

226:12 were you able to achieve a good fit?

226:13 MR. BUCHANAN: Objection to form.

226:14 THE WITNESS: Yes.

226:15 BY MR. WASDIN:

226:16 Q. And during the course of whatever time

226:17 you used them, were you able to keep that fit with

226:18 the Combat Arms Version 2?

226:19 MR. BUCHANAN: Objection to form.

226:20 THE WITNESS: Yes.

227:08 - 227:14 Merkley, John 2020-02-26 0:12

227:08 Q. That's -- the idea that a premolded Re: [227:08 to 227:14] SUSTAINED

227:09 earplug, you know, may lose its seal is reported in Pltf Obj 602; 611; 702

227:10 the academic literature in hearing conservation,

227:11 right?

227:12 MR. BUCHANAN: Objection. Foundation and

227:13 form.

227:14 THE WITNESS: Yes.

228:01 - 228:14 Merkley, John 2020-02-26 1:53

228:01 Q. You were aware when you were a military Re: [228:01 to 228:14] SUSTAINED

228:02 audiologist or an Army audiologist that preformed Pltf Obj 403; 602

228:03 earplugs of any variety could loosen in a wearer's

228:04 ear, right?

228:05 MR. BUCHANAN: Objection to the

228:06 leadingness.

228:07 THE WITNESS: Yes.

228:08 BY MR. WASDIN:

228:09 Q. And on occasions when a preformed earplug

228:10 does lose its seal, you found that to be

228:11 perceptible because you could hear ambient noise

228:12 louder than you did when you had a seal, right?

228:13 MR. BUCHANAN: Objection to form.

228:14 THE WITNESS: Yes.

228:16 - 228:20 Merkley, John 2020-02-26 0:12

228:16 Q. Did you have any problem properly Re: [228:16 to 228:20] OVERRULED

228:17 inserting the CAEv2 into your ear when you used it? Pltf Obj 403; 702; MIL G7

228:18 MR. BUCHANAN: Objection to form to the

228:19 personal use.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 78 of 102
228:20 THE WITNESS: No.

229:01 - 230:06 Merkley, John 2020-02-26 1:03

229:01 Q. The last thing I want to ask you about is Re: [229:01 to 230:06] OVERRULED

229:02 we talked a little bit about experimenter fit Pltf Obj 611

229:03 versus user fit in the testing of hearing

229:04 protection devices; do you remember that?

229:05 A. Yes.

229:06 Q. And we said that experimenter fit was

229:07 definitely the standard -- the fitting methodology

229:08 for the 1974 ANSI standard, right?

229:09 A. Correct.

229:10 Q. That's the standard that's used during

229:11 NRR labeling testing?

229:12 A. Yes.

229:13 Q. Are you aware that the results achieved

229:14 when an experimenter fits an earplug are often

229:15 greater than when a user fits the plug themselves?

229:16 MR. BUCHANAN: Objection to form.

229:17 THE WITNESS: Yes.

229:18 BY MR. WASDIN:

229:19 Q. Is that something that is discussed at

229:20 the NHCA conference from time to time?

229:21 A. Yes.

230:01 Q. For that reason, NRR ratings tend to

230:02 overestimate the amount of attenuation any

230:03 particular person would get with a product, right?

230:04 MR. BUCHANAN: Objection. Form and

230:05 foundation.

230:06 THE WITNESS: Yes.

231:13 - 232:14 Merkley, John 2020-02-26 1:38

231:13 Q. Some of the data we looked at on the

231:14 yellow end included real ear attenuation data for

231:15 the yellow end of the product, right?

231:16 A. Um-hum.

231:17 Q. And it shows some levels of attenuation

231:18 at various frequencies even on the yellow end,

231:19 right?

231:20 A. Correct.

231:21 MR. BUCHANAN: Objection to form and

232:01 foundation.

232:02 BY MR. WASDIN:

232:03 Q. Were you generally aware during your time

232:04 as an Army audiologist that the yellow end did

232:05 provide some level of attenuation --

232:06 MR. BUCHANAN: Objection to form.

232:07 THE WITNESS: Yes.

232:08 BY MR. WASDIN:

232:09 Q. -- even for lower-level sounds?

232:10 A. Yes.

232:11 Q. You didn't think that it let one hundred

232:12 percent of all ambient sound come through?

232:13 MR. BUCHANAN: Objection to the leading.

232:14 THE WITNESS: Correct.

233:15 - 234:06 Merkley, John 2020-02-26 1:32

233:15 Is it correct, sir, that you're at the

233:16 Army Hearing Conservation Program office today?

233:17 A. It's the Army Hearing Program Office.

233:18 Q. Okay. And is the Army -- is that also

233:19 called Program 51?

233:20 A. It is, yes.

233:21 Q. Okay. And that's within another group

234:01 called the Occupational and Environmental Medicine

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 79 of 102
234:02 Group?

234:03 A. Not -- not currently. It falls

234:04 under -- the directorate is the clinical public

234:05 health and epidemiology directorate, so the

234:06 directorates have changed.

235:15 - 235:20 Merkley, John 2020-02-26 0:13

235:15 Q. Okay. Am I correct, sir, you -- you

235:16 served as a clinical audiologist for several years

235:17 and in several different settings and then have

235:18 separately held positions where I'll say more

235:19 policy based, is that fair?

235:20 A. Yes.

235:21 - 236:05 Merkley, John 2020-02-26 1:30

235:21 Q. Okay. Could you kind of identify for us

236:01 your windows when you had clinical experience?

236:02 A. Clinical experience initially from 2000

236:03 to -- well, really all of the way through 2015 when

236:04 I moved to the Defense Hearing Center of

236:05 Excellence.

238:02 - 238:12 Merkley, John 2020-02-26 0:22

238:02 Q. Okay. You were telling us about your

238:03 time in Iraq.

238:04 A. Um-hum.

238:05 Q. I believe you spent about a year there?

238:06 A. I spent 13 months in Iraq.

238:07 Q. And those years again?

238:08 A. 2006/'07.

238:09 Q. And were you attached to a particular

238:10 brigade -- brigade there?

238:11 A. I was attached to the 28th Combat Support

238:12 Hospital.

238:13 - 239:08 Merkley, John 2020-02-26 1:09

238:13 Q. And how large a group does the 28th

238:14 Combat Support Hospital support?

238:15 A. Like how large is the organization?

238:16 Q. No. I was asking more in terms of the

238:17 soldiers that you were, you know, assigned to

238:18 supporting, how -- in terms of troop count?

238:19 A. Oh, we -- we conducted split operations

238:20 in Iraq, covered Baghdad and Tallil and Mosul.

238:21 The -- the split operations were in Mosul at first.

239:01 I don't remember, I wasn't -- I think up in Mosul.

239:02 I thought they moved down to Tallil, but I may be

239:03 wrong on that. I spent all of my time in Baghdad,

239:04 and we supported all coalition forces in and

239:05 around -- well, in Iraq.

239:06 Q. And at its peak, or at least when you

239:07 were there, tens of thousands of forces?

239:08 A. Yes.

329:01 - 329:01 Merkley, John 2020-02-26 0:01

329:01 THE WITNESS: Correct. Re: [329:01 to 329:01] DEFER RULING

Def Obj Improper Counter

379:14 - 379:17 Merkley, John 2020-02-26 0:11

379:14 THE WITNESS: I was not. Re: [379:14 to 379:17] DEFER RULING

379:15 BY MR. BUCHANAN: Def Obj Improper Counter

379:16 Q. Are you aware the company discontinued it

379:17 the next week?

434:02 - 434:13 Merkley, John 2020-02-26 0:27

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 80 of 102
434:02 Q. Hearing Center of Excellence. You looked

434:03 at some DoD materials that talk about hearing loss

434:04 being preventable in the military, do you remember

434:05 those?

434:06 A. Yes.

434:07 Q. I think you and I talked earlier about

434:08 ways to prevent, or at least the 40-501

434:09 regulations, on how someone should approach noise

434:10 to give themselves the best chance of preventing

434:11 hearing loss, do you remember those discussions we

434:12 had?

434:13 A. Yes.

435:08 - 435:21 Merkley, John 2020-02-26 0:23

435:08 Q. Some levels of noise you can protect

435:09 yourself against with a single-hearing protection

435:10 device, right?

435:11 A. Yes.

435:12 Q. Some levels of noise are high enough that

435:13 you would need two separate hearing protection

435:14 devices together, right?

435:15 A. Yes.

435:16 Q. In order to prevent hearing loss, right?

435:17 A. Yes.

435:18 Q. And some noises are so high that the only

435:19 way to prevent hearing loss is to either limit your

435:20 time in them or not encounter them at all, right?

435:21 A. Correct.

436:03 - 436:09 Merkley, John 2020-02-26 0:11

436:03 Q. So, when we say hearing loss is Re: [436:03 to 436:09] OVERRULED

436:04 preventable, we mean with one, with multiple Pltf Obj 611; foundation; 702

436:05 hearing protection devices or by just by avoiding

436:06 the noise in the first place, right?

436:07 MR. BUCHANAN: Objection to the form and

436:08 foundation.

436:09 THE WITNESS: Correct.

436:11 - 436:17 Merkley, John 2020-02-26 0:15

436:11 Q. The materials you reviewed with Re: [436:11 to 436:17] SUSTAINED

436:12 Mr. Buchanan did not say that all hearing losses Pltf Obj 611

436:13 are preventable in the military by wearing the

436:14 Combat Arms Version 2 on its own, right?

436:15 MR. BUCHANAN: Objection to form and

436:16 foundation.

436:17 THE WITNESS: Correct.

439:12 - 439:17 Merkley, John 2020-02-26 0:19

439:12 Q. In the Just the Facts document the Army

439:13 says, at 190 dB, there's an overall peak reduction

439:14 of 25 dB. Testing at a U.S. military facility

439:15 found this nonlinear earplug protective up to 190

439:16 dB. Do you remember that?

439:17 A. Yes.

440:06 - 441:01 Merkley, John 2020-02-26 1:35

440:06 Q. Okay. So, when the Army was authoring Re: [440:06 to 441:01] SUSTAINED

440:07 the Just the Facts document, the Army had Pltf Obj 602; 611 [440:6-440:12]

440:08 determined that testing at a U.S. military facility

440:09 found this nonlinear earplug, the Combat Arms

440:10 Earplug, protective up to 190 dB?

440:11 MR. BUCHANAN: Objection to form.

440:12 THE WITNESS: Yes.

440:13 BY MR. WASDIN:

440:14 Q. That's what the document says. And then

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 81 of 102
440:15 ten years later, or nine years later, the exact

440:16 same statement is in a 3M advertisement on the

440:17 product, right?

440:18 A. Yes.

440:19 Q. And, indeed, if you look at the 3M ad,

440:20 there's a citation on the end of that sentence,

440:21 too, and it's to the Dan Johnson blast study?

441:01 A. To the study, yes.

441:02 - 441:08 Merkley, John 2020-02-26 0:21

441:02 Q. So, what 3M is doing in the ad is just Re: [441:02 to 441:08] SUSTAINED

441:03 repeating the Army's own interpretation of the Pltf Obj 602; 611

441:04 Army's study that the Army had made almost a decade

441:05 earlier, right?

441:06 MR. BUCHANAN: Objection to form and

441:07 foundation.

441:08 THE WITNESS: Yes.

443:03 - 444:10 Merkley, John 2020-02-26 1:04

443:03 Q. Mr. Berger testified that Doug Ohlin Re: [443:03 to 444:10] SUSTAINED

443:04 requested from him a dual-ended product that Pltf Obj 602; 611 [except 443:11-443:20]

443:05 included the Ultra Fit tips of a single size and

443:06 the ISL filter. You don't have any reason to

443:07 disagree with that testimony, do you?

443:08 MR. BUCHANAN: Objection to form.

443:09 THE WITNESS: No.

443:10 BY MR. WASDIN:

443:11 Q. Now, you and I looked at some documents

443:12 that included emails from Doug Ohlin in the April

443:13 1999 time period, do you remember those?

443:14 A. Yes.

443:15 Q. And in those emails, Mr. Ohlin had found

443:16 that the original production samples of that plug

443:17 that were sent by Aearo were about a quarter of an

443:18 inch too long and didn't fit into the military

443:19 carrying case, do you remember those emails?

443:20 A. Yes.

443:21 Q. Subsequent to those emails, Aearo reduced

444:01 the size, reduced the length of the Combat Arms

444:02 Version 2 by a quarter of an inch.

444:03 During your investigation of the

444:04 materials in this case, did you find anything that

444:05 contradicts that Aearo shortened the length of the

444:06 Combat Arms Version 2 in response to Doug Ohlin's

444:07 request?

444:08 MR. BUCHANAN: Objection to form.

444:09 Ambiguous.

444:10 THE WITNESS: No.

444:12 - 444:15 Merkley, John 2020-02-26 0:03

444:12 Q. You don't have any reason to disagree

444:13 with that, do you?

444:14 MR. BUCHANAN: Leading.

444:15 THE WITNESS: No.

445:11 - 445:16 Merkley, John 2020-02-26 0:13

445:11 Q. But you don't have any reason to disagree Re: [445:11 to 445:16] SUSTAINED

445:12 with Mr. Berger's testimony that he told Doug Ohlin Pltf Obj 602; 611

445:13 about the company's internal testing while it was

445:14 happening, do you?

445:15 MR. BUCHANAN: Objection to form.

445:16 THE WITNESS: No.

449:01 - 449:06 Merkley, John 2020-02-26 1:50

449:01 Q. And that's interesting, because if you go

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 82 of 102
449:02 to the Hobbs testing, which is the Air Force

449:03 testing we've been talking about all day, he

449:04 actually does -- are you with me on the Air Force

449:05 document?

449:06 A. I am.

449:12 - 450:14 Merkley, John 2020-02-26 1:52

449:12 Q. He actually does real ear attenuation Re: [449:12 to 450:14] OVERRULED

449:13 testing as part of that testing, right? Pltf Obj 403; 702; MIL G7

449:14 MR. BUCHANAN: Objection to form.

449:15 THE WITNESS: Yes.

449:16 BY MR. WASDIN:

449:17 Q. And real ear there means the earplugs

449:18 were inserted into a human ear and tested for

449:19 attenuation, right?

449:20 A. Correct.

449:21 Q. And if you go to page 19, at the top,

450:01 there's a paragraph called, Discussion. He

450:02 determines that the continuous noise protection of

450:03 all devices tested was reasonable and should

450:04 provide for a safe exposure level for the average

450:05 users in many noise environments up to 105 dB,

450:06 right?

450:07 MR. BUCHANAN: Objection to the form.

450:08 THE WITNESS: Yes.

450:09 BY MR. WASDIN:

450:10 Q. So, Mr. Hobbs is testing the earplug in

450:11 human ears without rolling the flanges back, and

450:12 they are working?

450:13 MR. BUCHANAN: Objection to form.

450:14 THE WITNESS: Yes, it appears so.

452:12 - 453:14 Merkley, John 2020-02-26 1:53

452:12 Q. First, we have test data from a variety Re: [452:12 to 453:14] SUSTAINED

452:13 of branches of the military that show that the plug Pltf Obj vague; 602; 702; 402;

452:14 provides reasonable attenuation or good attenuation 802

452:15 under a variety of different circumstances, right?

452:16 MR. BUCHANAN: Objection to form and

452:17 foundation. Vague.

452:18 THE WITNESS: Yes.

452:19 BY MR. WASDIN:

452:20 Q. Second, you have personal experience with

452:21 the plug, and for you, it worked well?

453:01 A. Yes.

453:02 MR. BUCHANAN: Objection to form.

453:03 BY MR. WASDIN:

453:04 Q. Third, we reviewed a number of success

453:05 stories from other members of the military who

453:06 served in Iraq who said that the plug worked for

453:07 them, too, right?

453:08 A. Yes.

453:09 Q. Third, you treated patients in Iraq, and

453:10 your experience was those that didn't use a plug

453:11 had hearing loss, and those that did use a hearing

453:12 protector, like the CAEv2, did not, right?

453:13 MR. BUCHANAN: Objection. Form.

453:14 THE WITNESS: Correct.

455:01 - 455:08 Merkley, John 2020-02-26 0:18

455:01 Q. But your experience was, regardless of Re: [455:01 to 455:08] SUSTAINED

455:02 what a particular document did or did not say, that Pltf Obj 611

455:03 in the 2001 to 2005 time period, Doug Ohlin

455:04 instructed you and other Army audiologists to fold

455:05 back the flanges as needed to get a good fit,

455:06 right?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 83 of 102
455:07 MR. BUCHANAN: Objection to form.

455:08 THE WITNESS: Yes.

456:02 - 457:11 Merkley, John 2020-02-26 1:45

456:02 Q. Now, you told me earlier that all Re: [456:02 to 457:11] SUSTAINED

456:03 preformed earplugs are susceptible to loosening, Pltf Obj foundation; 602; 611;

456:04 right? 702

456:05 A. Yes.

456:06 Q. That's a well-known phenomenon, right?

456:07 A. Yes.

456:08 MR. BUCHANAN: Objection to form.

456:09 BY MR. WASDIN:

456:10 Q. So, users of the Combat Arms Version 2,

456:11 at least the audiology community, would know, like

456:12 other preformed earplugs, it could be susceptible

456:13 to loosening, right?

456:14 MR. BUCHANAN: Objection. Form.

456:15 Foundation. Well beyond the witness.

456:16 THE WITNESS: Yes.

456:17 BY MR. WASDIN:

456:18 Q. Yourself included, right?

456:19 MR. BUCHANAN: Objection to form.

456:20 THE WITNESS: Yes.

456:21 BY MR. WASDIN:

457:01 Q. Now, your experience was with any

457:02 preformed earplug that did loosen, including if it

457:03 happened to you with the Combat Arms Version 2, it

457:04 was perceptible to you, right?

457:05 A. Yes.

457:06 MR. BUCHANAN: Objection.

457:07 BY MR. WASDIN:

457:08 Q. That in the real world, you had an

457:09 auditory clue that you had lost the seal of your

457:10 hearing protector, right?

457:11 A. Yes.

458:02 - 459:01 Merkley, John 2020-02-26 1:44

458:02 Q. I'll represent to you some testimony Re: [458:02 to 459:01] SUSTAINED

458:03 given in this case. Mr. Berger said that the Pltf Obj foundation; 602; 611;

458:04 concept of imperceptible loosening is a phenomenon 702

458:05 that's limited to the REAT chamber because there

458:06 are no auditory clues in a silent room. Do you

458:07 follow that logic?

458:08 MR. BUCHANAN: Objection to form.

458:09 THE WITNESS: Yes.

458:10 BY MR. WASDIN:

458:11 Q. And in a silent room that had no auditory

458:12 external clues, if you lost your seal on a plug,

458:13 you might not notice it, right?

458:14 MR. BUCHANAN: Objection to form and

458:15 foundation.

458:16 THE WITNESS: Correct.

458:17 BY MR. WASDIN:

458:18 Q. But in the real world, particularly in a

458:19 combat setting or in military training, if you lose

458:20 your seal on a plug, you will notice it?

458:21 MR. BUCHANAN: Objection. Foundation.

459:01 THE WITNESS: Generally, yes.

460:07 - 460:12 Merkley, John 2020-02-26 0:16

460:07 Q. Okay. But as of 2001, information that

460:08 for some people they could benefit by folding back

460:09 the flanges on the opposite side of the plug, you

460:10 had that information as of 2001?

460:11 MR. BUCHANAN: Objection to form.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 84 of 102
460:12 THE WITNESS: Yes.

488:21 - 489:07 Merkley, John 2020-02-26 0:18

488:21 Q. Okay. And fair to say, sir, that the

489:01 design of the yellow end was to allow sound to go

489:02 through, right?

489:03 A. Yes.

489:04 Q. That was the goal, to allow as much sound

489:05 to go through unless it was an impulse noise,

489:06 right?

489:07 A. Correct.

489:18 - 490:08 Merkley, John 2020-02-26 1:41

489:18 THE WITNESS: Can I just add? You know, Re: [489:18 to 490:08] SUSTAINED

489:19 because the questioning was related to, you know, Pltf Obj nonresponsive

489:20 would you perceive a -- a break in the seal? And

489:21 when you fit the yellow end of that earplug in, you

490:01 still get an occlusion effect, and when the seal is

490:02 broken, that occlusion effect is what tends to go

490:03 away.

490:04 So, the -- the sound still is different.

490:05 It's different with the earplug seated and when

490:06 it's -- when the seal is broken. They're -- you

490:07 can generally tell when that seal is broken. I

490:08 won't say all the time, but --

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 85 of 102
Pltf Objections Objections RULINGS

8:14 - 8:19 O'Brien, Shane 2020-10-07 0:23

8:14 And before we get started,

8:15 though, if I could have you state your full

8:16 name and spell it for the Record, please.

8:17 A. Shane Christopher O'Brien. It's

8:18 S-H-A-N-E; middle name C-H-R-I-S-T-O-P-H-E-R;

8:19 last name O, apostrophe, B-R-I-E-N.

12:01 - 12:07 O'Brien, Shane 2020-10-07 0:14

12:01 Okay. So I want to start off

12:02 with just getting a little bit of background

12:03 information about you. What's your date of

12:04 birth?

12:05 A. March 29, 1982.

12:06 Q. Where do you live?

12:07 A. Cedar Rapids, Iowa.

13:14 - 13:23 O'Brien, Shane 2020-10-07 1:33

13:14 What do you currently do for

13:15 work?

13:16 A. I work for Collins Aerospace.

13:17 Q. How long have you been in that

13:18 position?

13:19 A. A little over a year.

13:20 Q. What are your job duties?

13:21 A. So I am in the software control

13:22 library, and we rebuild and archive software

13:23 for our customers.

31:23 - 32:05 O'Brien, Shane 2020-10-07 0:24

31:23 Q. I know we did -- We did talk a

31:24 bit about how often you communicate with Mr.

31:25 Keefer. And you said it's about once or twice

32:01 a month; is that right?

32:02 A. Yes. Usually over the phone.

32:03 Q. And is it a phone call or is it

32:04 Skype, FaceTime?

32:05 A. It's a phone call.

32:17 - 33:02 O'Brien, Shane 2020-10-07 1:31

32:17 Q. I know you mentioned that you

32:18 were in the Army from 2007 to 2011. Were you

32:19 at Fort Benning with Mr. Keefer?

32:20 A. I was.

32:21 Q. Did you communicate with him

32:22 while you were there at Fort Benning?

32:23 A. Of course. We were in the same

32:24 unit.

32:25 Q. And how did you communicate? Was

33:01 it by phone, in person?

33:02 A. On phone and by person.

33:09 - 33:12 O'Brien, Shane 2020-10-07 0:16

33:09 Q. Okay. During Mr. Keefer's

33:10 deployment to Iraq around 200- -- July of 2009,

33:11 how often did you communicate with him?

33:12 A. Never.

33:17 - 33:21 O'Brien, Shane 2020-10-07 0:17

33:17 Q. What about when Mr. Keefer

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 86 of 102
33:18 returned from Iraq in 2010, how often did you

33:19 communicate with him then?

33:20 A. Business back to normal. We were

33:21 in a unit together, so quite often.

34:01 - 34:04 O'Brien, Shane 2020-10-07 0:15

34:01 Q. And what about when Mr. Keefer

34:02 was transferred to Hawaii, how often would you

34:03 communicate with him then?

34:04 A. Once or twice a month.

34:09 - 34:09 O'Brien, Shane 2020-10-07 0:01

34:09 Q. And then what about after Mr.

34:10 - 34:13 O'Brien, Shane 2020-10-07 0:17

34:10 Keefer left the military in April of 2015, how

34:11 often would you communicate with him then,

34:12 after he left?

34:13 A. Once or twice a month.

41:09 - 41:11 O'Brien, Shane 2020-10-07 0:19

41:09 Q. Do you recall telling Mr. Keefer

41:10 about the Combat Arms litigation?

41:11 A. No, I did not.

42:08 - 42:19 O'Brien, Shane 2020-10-07 1:49

42:08 Q. Were you aware that Mr. Keefer

42:09 gave a deposition in this case?

42:10 A. Yes, I was.

42:11 Q. How did you know about that?

42:12 A. From when we spoke that I had a

42:13 deposition, and after I got the paperwork.

42:14 Q. What did he tell you about his

42:15 deposition?

42:16 A. Just that he was already deposed,

42:17 and that I -- that he named me as a person that

42:18 may have gotten a subpoena, and that's when he

42:19 said he'd been deposed.

43:07 - 44:02 O'Brien, Shane 2020-10-07 1:08

43:07 So this is just an excerpt of the deposition Re: [43:07 to 44:02] SUSTAINED

43:08 transcript. But I want you to look at page 374 Pltf Obj 602; Cumulative

43:09 and line -- starting with line 19. I'll read

43:10 it aloud for you. Question: How did you first

43:11 learn about this litigation against the Combat

43:12 Arms Earplug? Answer: I received an email. I

43:13 think it was an email or a message from a

43:14 friend of mine.

43:15 Question: Who was the friend?

43:16 Answer: Shane O'Brien.

43:17 Question: And is Shane O'Brien a

43:18 plaintiff? Answer: I don't know, sir.

43:19 Did I read that testimony

43:20 correctly?

43:21 A. Yes. But you spelled my name

43:22 wrong.

43:23 Q. Yes, I do see the spelling is

43:24 wrong in the transcript there.

43:25 Do you have any recollection of

44:01 sending either an email or a message to Mr.

44:02 Keefer about the Combat Arms litigation?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 87 of 102
44:06 - 44:08 O'Brien, Shane 2020-10-07 0:12

44:06 Q. So my question was, do you recall Re: [44:06 to 44:08] OVERRULED

44:07 ever -- ever sending Mr. Keefer an email or a Pltf Obj 602; Cumulative

44:08 message about the Combat Arms litigation?

44:11 - 44:11 O'Brien, Shane 2020-10-07 0:03

44:11 A. I don't recall.

44:12 - 44:15 O'Brien, Shane 2020-10-07 0:16

44:12 Q. So you don't -- Excuse me. So

44:13 you don't recall what Mr. Keefer testified to

44:14 here; is that right?

44:15 A. Correct.

54:17 - 54:19 O'Brien, Shane 2020-10-07 0:15

54:17 Q. Okay. You said that you joined

54:18 the Army in 2007; is that right?

54:19 A. Yes.

54:22 - 54:24 O'Brien, Shane 2020-10-07 0:11

54:22 Q. Understood. Understood. And you

54:23 said you served from 2007 to 2011?

54:24 A. On active duty, yes.

55:12 - 55:17 O'Brien, Shane 2020-10-07 0:18

55:12 Q. Okay. At that point, you decided

55:13 to go into the Army Reserves?

55:14 A. I came home, convinced my now

55:15 wife that I wanted to be in the Reserves, and I

55:16 think it was approximately six months later I

55:17 joined the Reserves.

55:22 - 56:03 O'Brien, Shane 2020-10-07 0:24

55:22 Q. And I apologize if you already --

55:23 you already testified to this. So are you

55:24 still in the -- in the Reserves or have you

55:25 since left?

56:01 A. I have left.

56:02 Q. And what year was that?

56:03 A. 2015, February.

57:18 - 57:24 O'Brien, Shane 2020-10-07 0:22

57:18 Q. Okay. Was Mr. Keefer with you at

57:19 basic training?

57:20 A. No.

57:21 Q. So you weren't present when Mr.

57:22 Keefer was attending his basic training; is

57:23 that right?

57:24 A. That is correct.

73:16 - 74:07 O'Brien, Shane 2020-10-07 1:50

73:16 Q. Now, earlier you said that you

73:17 weren't with Mr. Keefer when he was at basic

73:18 training; is that right?

73:19 A. That would be correct, to my

73:20 knowledge.

73:21 Q. So you weren't present when Mr.

73:22 Keefer was issued a hearing protection device

73:23 at basic training; fair to say?

73:24 A. That's fair to say.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 88 of 102
73:25 Q. You don't know what type of

74:01 hearing protection Mr. Keefer used at basic

74:02 training?

74:03 A. That is correct.

74:04 Q. And you can't say whether Mr.

74:05 Keefer always wore a hearing protection device

74:06 while at basic training?

74:07 A. That would be fair.

79:11 - 79:24 O'Brien, Shane 2020-10-07 1:53

79:11 Q. Do you remember the approximate

79:12 date of when you arrived at Fort Benning?

79:13 A. January '08, maybe.

79:14 Approximately.

79:15 Q. Was it at Fort Benning that you

79:16 met Mr. Keefer?

79:17 A. Yes.

79:18 Q. How did you meet?

79:19 A. Just met him at the unit. I

79:20 don't remember -- I don't recall exactly how I

79:21 met Mr. Keefer.

79:22 Q. You were in the same unit,

79:23 though?

79:24 A. Correct.

83:02 - 83:18 O'Brien, Shane 2020-10-07 1:08

83:02 Q. Okay. So can you give me, I

83:03 guess, some more details about how often you

83:04 were interacting with your unit? Daily

83:05 interaction, monthly, weekly.

83:06 A. So I'll give you a rundown of our

83:07 daily routine. We wake up, we go to PT. PT,

83:08 like I said, it's either 6:30 or seven. You

83:09 get a break to do your duties, personal hygiene

83:10 and stuff, eat, and then you come back to work.

83:11 I can't remember if it was eight or nine

83:12 o'clock in the morning.

83:13 You do trainings, so to keep

83:14 up-to-date on newest trends or technologies.

83:15 Every Thursday was sergeant's time, which is

83:16 just Army-based stuff, being a soldier.

83:17 And then you break for lunch,

83:18 come back, do much of the same, and go home.

84:11 - 84:14 O'Brien, Shane 2020-10-07 0:12

84:11 Q. Okay. And then what about when

84:12 you would -- when you would go to work, so it

84:13 sounds like there was -- you were intertwined

84:14 with your unit at work. Can you describe how

84:14 - 84:16 O'Brien, Shane 2020-10-07 0:10

84:14 with your unit at work. Can you describe how

84:15 often you were seeing your unit while working?

84:16 A. Every day.

86:08 - 86:21 O'Brien, Shane 2020-10-07 1:56

86:08 Q. You mentioned Mr. Keefer. How

86:09 often were you interacting with Mr. Keefer at

86:10 work?

86:11 A. Probably three times a week, at

86:12 least, if not more. Any time we did a field

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 89 of 102
86:13 exercise, I was there; any time he would go to

86:14 the range, I was there; any time he would do

86:15 our C burn training, I was there, which is our

86:16 -- your CS gas, you have to do every -- couple

86:17 of times a year. When we'd do our twelve-mile

86:18 ruck, I was there.

86:19 Q. So specifically at work, do you

86:20 know what his job responsibilities were?

86:21 A. He was a medic.

91:13 - 92:02 O'Brien, Shane 2020-10-07 1:55

91:13 Q. You also mentioned that you did

91:14 trainings with your -- with your unit. How

91:15 often were you going to trainings?

91:16 A. We did -- I mean, we did

91:17 trainings quite a bit. I -- I don't have a

91:18 number for you. Whatever the Army needed, we

91:19 did.

91:20 Q. Was it every month, every week?

91:21 A. I would -- Safe to say, you're

91:22 probably going two to three times a month,

91:23 doing different various -- Excuse me. --

91:24 various activities.

91:25 Q. And that's something you did

92:01 together with your unit?

92:02 A. Yes.

92:03 - 92:12 O'Brien, Shane 2020-10-07 1:30

92:03 Q. You also mentioned that you would

92:04 go to the firing range with your unit; is that

92:05 right?

92:06 A. We went to the shooting range,

92:07 yes.

92:08 Q. Okay. And how often would you go

92:09 to the shooting range?

92:10 A. Two to four times a year. Now,

92:11 granted, there were times when we could go

92:12 more, but two to four times as a unit.

94:10 - 94:12 O'Brien, Shane 2020-10-07 0:07

94:10 Q. So you don't know one way or the Re: [94:10 to 94:12] SUSTAINED

94:11 other if Mr. Keefer ever had to go to the Pltf Obj 611; leading, 602;

94:12 shooting range more often? vague, compound

94:14 - 94:14 O'Brien, Shane 2020-10-07 0:06

94:14 A. I just stated that, yes. Re: [94:14 to 94:14] SUSTAINED

Pltf Obj 611; leading, 602;

vague, compound

95:04 - 95:10 O'Brien, Shane 2020-10-07 0:26

95:04 Q. Okay. So let's talk about 2008,

95:05 then. When you were at Fort Benning. When you

95:06 went to the -- went to the shooting range these

95:07 two to four times a year, was Mr. Keefer with

95:08 you?

95:09 A. I cannot recall that, yes, he

95:10 was, or, no, he wasn't.

95:16 - 95:19 O'Brien, Shane 2020-10-07 0:18

95:16 Q. Would it be fair to say that Re: [95:16 to 95:19] OVERRULED

95:17 you're not sure of what type of hearing Pltf Obj 602, vague

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 90 of 102
95:18 protection he was wearing those two to four

95:19 times at the shooting range in 2008?

95:21 - 95:24 O'Brien, Shane 2020-10-07 0:11

95:21 A. I know what we were issued, Re: [95:21 to 95:24] OVERRULED

95:22 that's as much as I -- as far as I can go about Pltf Obj 602, vague

95:23 saying what he was wearing or what he was not

95:24 wearing.

96:14 - 97:01 O'Brien, Shane 2020-10-07 1:48

96:14 Q. What type of hearing protection

96:15 was issued to your unit at Fort Benning in

96:16 2008?

96:17 A. One of the two that were

96:18 previously spoken about, the ugly bumblebee, or

96:19 as you call it, the 2.0, or the 3.0.

96:20 Q. So in 2008, you saw individuals

96:21 wearing the Combat Arms, the dual-ended Version

96:22 2, and the Combat Arms Version 3.0; is that

96:23 right?

96:24 A. I can't recall exact time frame,

96:25 but I know during my time at the multiple times

97:01 I went to the range, I saw both of those.

99:23 - 100:12 O'Brien, Shane 2020-10-07 1:00

99:23 Q. So thinking of 2008 when you --

99:24 when you were at Fort Benning, did you ever

99:25 have meals with Mr. Keefer?

100:01 A. Yes. Our families were

100:02 intertwined. When I --

100:03 Q. What do you mean by your --

100:04 A. So when I got custody of my son,

100:05 which I believe was actually 2009, I'd have to

100:06 double-check my records, he was a pretty

100:07 influential part of the care that I could

100:08 provide for my child.

100:09 Q. In what way?

100:10 A. Well, his daughter, Trinity, was

100:11 like a sister to my son. And his wife -- One

100:12 moment.

103:07 - 103:09 O'Brien, Shane 2020-10-07 0:13

103:07 Q. So where we left off was, you

103:08 know, I asked you about your relationship with

103:09 Mr. Keefer's family. When did you first meet

103:09 - 103:16 O'Brien, Shane 2020-10-07 1:33

103:09 Mr. Keefer's family. When did you first meet

103:10 Mr. Keefer's family?

103:11 A. It would have been when I was at

103:12 Fort Benning, prior to my child moving in with

103:13 me.

103:14 Q. Okay. Was that around 200- --

103:15 the 2009 time frame?

103:16 A. That seems about right.

104:12 - 104:14 O'Brien, Shane 2020-10-07 0:10

104:12 Q. So in that 2008, 2009 time frame, Re: [104:12 to 104:14] OVERRULED

104:13 how often were you and your wife interacting Pltf Obj vague

104:14 with Mr. Keefer and his family?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 91 of 102
104:16 - 104:19 O'Brien, Shane 2020-10-07 0:21

104:16 A. So my family would be my child

104:17 and me. And I would say, safe assumption would

104:18 be weekly, but probably more than that at

104:19 times.

104:20 - 104:25 O'Brien, Shane 2020-10-07 1:30

104:20 Q. And can you give me an example of

104:21 what sort of things you -- you would do

104:22 together?

104:23 A. Campfires in the backyard, meals

104:24 with Emily, Lewis, and his children, and then

104:25 my child.

106:19 - 106:20 O'Brien, Shane 2020-10-07 0:12

106:19 Q. Did you ever see Mr. Keefer use Re: [106:19 to 106:20] OVERRULED

106:20 lawn equipment, like a lawn mower? Pltf Obj MIL C4 - non-military

noise exposure

106:22 - 106:22 O'Brien, Shane 2020-10-07 0:00

106:22 A. No. Re: [106:22 to 106:22] OVERRULED

Pltf Obj MIL C4 - non-military

noise exposure

107:02 - 107:03 O'Brien, Shane 2020-10-07 0:06

107:02 Q. Did you ever see Mr. Keefer use Re: [107:02 to 107:03] OVERRULED

107:03 power tools at his house? Pltf Obj MIL C4 - non-military

noise exposure

107:05 - 107:08 O'Brien, Shane 2020-10-07 0:10

107:05 A. No. We put together, I believe Re: [107:05 to 107:08] OVERRULED

107:06 it was, like a coffee table or entertainment Pltf Obj MIL C4 - non-military

107:07 center, but it was all just hand tools, like noise exposure

107:08 Allen wrenches.

118:09 - 118:15 O'Brien, Shane 2020-10-07 1:36

118:09 Q. Okay. So let's talk about 2009,

118:10 then. Was Mr. Keefer at Fort Benning in 2009?

118:11 A. So the entire time I was there,

118:12 he was stationed with me, minus the time that

118:13 he deployed. I was sent on rear D, rear

118:14 detachment, because of my family situation and

118:15 other things I had going on.

119:14 - 119:19 O'Brien, Shane 2020-10-07 0:22

119:14 Q. Right. So prior to -- Prior to

119:15 Mr. Keefer's deployment to Iraq, would you

119:16 describe your interactions similarly as it was

119:17 in 2008, as far as frequency?

119:18 A. Yeah. I mean, minus the time he

119:19 was gone, but, yes.

120:13 - 120:23 O'Brien, Shane 2020-10-07 0:29

120:13 Q. But you have no specific Re: [120:13 to 120:23] SUSTAINED

120:14 recollection of a time that you went to the Pltf Obj 611; leading, vague,

120:15 shooting range with Mr. Keefer in 2009; is that 602 

120:16 right?

120:17 A. I can only be accountable for

120:18 myself. I can't place one specific person

120:19 there.

120:20 Q. And so then the same would be

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 92 of 102
120:21 true, then, you're not sure what type of

120:22 hearing protection he was wearing in 2009;

120:23 would that be fair?

120:25 - 121:07 O'Brien, Shane 2020-10-07 0:29

120:25 A. In order to get your ammo, being Re: [120:25 to 121:07] SUSTAINED

121:01 an ammo person, I made sure you had ear pro and Pltf Obj 611; leading, vague,

121:02 eye pro; and we would check plates as we -- you 602

121:03 know, you have to make sure you have a plate on

121:04 in your vest.

121:05 Q. But you can't testify to what

121:06 specific hearing protection Mr. Keefer used in

121:07 2009; correct?

121:09 - 121:12 O'Brien, Shane 2020-10-07 0:12

121:09 A. I cannot recall. Re: [121:09 to 121:12] SUSTAINED

121:10 Q. And sitting here today, you have Pltf Obj leading, vague, 602 ,

121:11 no specific recollection of the type of hearing cumulative

121:12 protection that Mr. Keefer used?

121:14 - 121:14 O'Brien, Shane 2020-10-07 0:17

121:14 A. I cannot recall. Re: [121:14 to 121:14] SUSTAINED

Pltf Obj 611;leading, vague,

602, cumulative

121:15 - 121:20 O'Brien, Shane 2020-10-07 0:19

121:15 Q. In 2009 -- It was around July of

121:16 2009, Mr. Keefer deployed to Iraq. Does that

121:17 time frame sound about right to you?

121:18 A. I can't comment on times.

121:19 Q. Do you remember him being

121:20 deployed in 2009?

121:22 - 121:22 O'Brien, Shane 2020-10-07 0:11

121:22 A. That sounds about right.

121:23 - 122:08 O'Brien, Shane 2020-10-07 1:51

121:23 Q. Okay. When he deployed, do you

121:24 know if he was issued with ear protection?

121:25 A. So when you go on a deployment,

122:01 you have another issuing of gear, and it's not

122:02 CIF, and I can't recall what they call it. But

122:03 they issue you more gear in case, you know, you

122:04 hit any element in the world. And I cannot

122:05 recall if more hearing protection was given or

122:06 not.

122:07 Q. Were you present when Mr. Keefer

122:08 was issued additional gear for his deployment?

122:10 - 122:15 O'Brien, Shane 2020-10-07 0:21

122:10 A. We would have all went through it

122:11 at the same time.

122:12 Q. But you don't have a specific

122:13 recollection of the hearing protection that was

122:14 included in his gear that he deployed with; is

122:15 that fair?

122:17 - 122:22 O'Brien, Shane 2020-10-07 1:34

122:17 A. I cannot recall which ones were

122:18 given to us at that time. But like I said

122:19 earlier in my deposition, it would have been

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 93 of 102
122:20 one of the ugly bumblebee, or you called 2.0,

122:21 or the ones with the strings attached. Those

122:22 are the only two I ever remember.

123:04 - 123:09 O'Brien, Shane 2020-10-07 0:24

123:04 Q. Did he ever tell you what hearing

123:05 protection he was wearing while deployed?

123:06 A. I can't recall.

123:07 Q. Did Mr. Keefer ever tell you that

123:08 one of the vehicles in his convoy was struck

123:09 with an IED?

123:11 - 123:11 O'Brien, Shane 2020-10-07 0:18

123:11 A. Not to my knowledge.

124:13 - 124:14 O'Brien, Shane 2020-10-07 0:07

124:13 Q. Do you know whether Mr. Keefer

124:14 was ever exposed to small arms fire?

124:16 - 124:16 O'Brien, Shane 2020-10-07 0:02

124:16 A. I couldn't tell you.

124:20 - 124:21 O'Brien, Shane 2020-10-07 0:07

124:20 Q. Did he tell you he was ever in a

124:21 helicopter in Iraq?

124:23 - 125:02 O'Brien, Shane 2020-10-07 0:16

124:23 A. We didn't talk about any

124:24 mission-specific stuff on the phone.

124:25 Q. So also fair to say, you don't

125:01 know what hearing production he was wearing

125:02 during those missions either?

125:04 - 125:06 O'Brien, Shane 2020-10-07 0:06

125:04 A. Correct. I would not know what

125:05 hearing protections, if he went on any

125:06 missions.

125:07 - 125:09 O'Brien, Shane 2020-10-07 0:08

125:07 Q. And you also wouldn't know the

125:08 frequency that he was wearing his hearing

125:09 protection; is that right?

125:11 - 125:12 O'Brien, Shane 2020-10-07 0:07

125:11 A. Since I was not there, that would

125:12 be a fair assumption, Mr. Gibney.

125:13 - 126:07 O'Brien, Shane 2020-10-07 1:19

125:13 Q. Okay. Let's move forward and Re: [125:13 to 126:07] OVERRULED

125:14 talk about his -- his departure from Iraq, and Pltf Obj 602

125:15 coming back to Fort Benning. In 2010, you were

125:16 still at Fort Benning; right?

125:17 A. Yes.

125:18 Q. And then do you remember Mr.

125:19 Keefer returning to Fort Benning in 2010 after

125:20 his deployment to Iraq?

125:21 A. Do I remember -- I wasn't there

125:22 for the Freedom Flight, but I remember seeing

125:23 him at the unit, yes.

125:24 Q. Were you -- You were still in the

125:25 same unit in 2010, when he returned?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 94 of 102
126:01 A. Yes.

126:02 Q. And what sort of frequency of

126:03 contact did you have with Mr. Keefer and his

126:04 unit in 2010? Was it similar to 2008 and 2009?

126:05 A. Business as usual.

126:06 Q. In 2010, do you remember what

126:07 hearing protection device he was issued?

126:09 - 126:18 O'Brien, Shane 2020-10-07 1:42

126:09 A. No, I do not recall.

126:10 Q. Did you ever go to the firing

126:11 range with him?

126:12 A. Like I said, we went two to four

126:13 times a year, regardless if our unit was

126:14 deployed or not.

126:15 Q. Any recollection of the hearing

126:16 protection device Mr. Keefer used at the

126:17 shooting range in 2010?

126:18 A. I do not recall.

128:01 - 129:01 O'Brien, Shane 2020-10-07 1:22

128:01 Q. And in the 2010 time frame, you

128:02 were still in the same unit with Mr. Keefer; is

128:03 that right?

128:04 A. We were in the same unit the

128:05 entire time we were on Fort Benning.

128:06 Q. And you testified before about

128:07 your contact or frequency of your contact with

128:08 Mr. Keefer during the 2008, 2009 time frame.

128:09 Is that the same sort of contact that you had

128:10 with him in 2010?

128:11 A. Like I stated before, the only

128:12 time that we really didn't have the personal

128:13 connection was when he was on deployment.

128:14 Q. Okay. And so that would be the

128:15 same as well in 2011?

128:16 A. The entire time I was at Fort

128:17 Benning.

128:18 Q. And I understand that you left

128:19 Benning in 2011. But do you remember the

128:20 approximate month of when you left?

128:21 A. February, maybe the end of

128:22 January.

128:23 Q. Okay. At that time when you left

128:24 Fort Benning, was Mr. Keefer still at Fort

128:25 Benning?

129:01 A. To the best of my knowledge.

129:13 - 129:19 O'Brien, Shane 2020-10-07 0:22

129:13 While at Fort Benning, did Mr. Re: [129:13 to 129:19] OVERRULED

129:14 Keefer ever talk about the Combat Arms Earplug, Pltf Obj vague, 602,

129:15 either the dual-ended pair or the Version 3 611;leading

129:16 that you also saw soldiers using?

129:17 A. Not that I recall.

129:18 Q. So you can't remember any

129:19 complaints that he made about the Combat Arms?

129:21 - 129:23 O'Brien, Shane 2020-10-07 0:10

129:21 A. Not that I can recall, no. Re: [129:21 to 129:23] OVERRULED

129:22 Q. Did you ever complain to him Pltf Obj vague, 602 ,

129:23 about the dual-ended Combat Arms? 611;leading

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 95 of 102
129:25 - 130:03 O'Brien, Shane 2020-10-07 0:10

129:25 A. Not that I am aware.

130:01 Q. You never told him about the

130:02 issues that you were having with it touching

130:03 your ear?

130:05 - 130:10 O'Brien, Shane 2020-10-07 0:18

130:05 A. I cannot remember a conversation

130:06 him and I had about the earplugs being built

130:07 the way they were.

130:08 Q. While at Fort Benning, did Mr.

130:09 Keefer ever tell you he had trouble hearing

130:10 things?

130:12 - 130:12 O'Brien, Shane 2020-10-07 0:02

130:12 A. Not to my knowledge.

130:13 - 130:14 O'Brien, Shane 2020-10-07 0:05

130:13 Q. Did he ever tell you that he had

130:14 ringing in his ears?

130:16 - 130:18 O'Brien, Shane 2020-10-07 0:11

130:16 A. Not to my knowledge.

130:17 Q. Did he ever tell you that he

130:18 thought he had tinnitus while at Fort Benning?

130:20 - 130:20 O'Brien, Shane 2020-10-07 0:05

130:20 A. I cannot recall, no.

130:21 - 130:23 O'Brien, Shane 2020-10-07 0:10

130:21 Q. Did Mr. Keefer ever tell you that Re: [130:21 to 130:23] OVERRULED

130:22 he went to the Army hospital for hearing Pltf Obj vague

130:23 concerns --

130:25 - 130:25 O'Brien, Shane 2020-10-07 0:03

130:25 Q. -- while at Fort Benning?

131:02 - 131:02 O'Brien, Shane 2020-10-07 0:10

131:02 A. Not to my knowledge.

131:03 - 131:16 O'Brien, Shane 2020-10-07 1:02

131:03 Q. Okay. So I want to talk about

131:04 Mr. Keefer's next duty station. And you said

131:05 that you can't remember exactly where that next

131:06 duty station was at; is that right?

131:07 A. I know they were in Hawaii, and

131:08 I'm pretty sure they were in Washington.

131:09 Q. Okay. During this time frame

131:10 that Mr. Keefer was either in Hawaii or

131:11 Washington, were you still keeping in contact

131:12 with him a couple times a month?

131:13 A. We would try. I mean, the time

131:14 difference between here and Hawaii was very

131:15 difficult. But we'd catch up every once in a

131:16 while. The frequency was not as much.

132:08 - 132:14 O'Brien, Shane 2020-10-07 0:19

132:08 Q. Did Mr. Keefer ever mention what

132:09 hearing protection he was using at that next

132:10 duty station in Hawaii?

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 96 of 102
132:11 A. That never came up.

132:12 Q. Did he ever tell you what hearing

132:13 protection device he was using when he was in

132:14 Washington state?

132:16 - 132:16 O'Brien, Shane 2020-10-07 0:10

132:16 A. No. Not that I recall.

133:02 - 133:03 O'Brien, Shane 2020-10-07 0:07

133:02 Q. While he was at -- in Hawaii, did

133:03 he ever complain about his hearing to you?

133:05 - 133:05 O'Brien, Shane 2020-10-07 0:03

133:05 A. Not that I can recall.

133:06 - 133:07 O'Brien, Shane 2020-10-07 0:06

133:06 Q. What about ringing in the ears,

133:07 did he ever mention he had ringing in his ears?

133:09 - 133:15 O'Brien, Shane 2020-10-07 1:38

133:09 A. Not that I can recall.

133:10 Q. Did you ever notice that Mr.

133:11 Keefer had trouble or difficulties hearing when

133:12 you would talk with him?

133:13 A. None that I can really pinpoint,

133:14 no. But, I mean -- No. Not that I can really

133:15 recall at this time.

134:22 - 134:23 O'Brien, Shane 2020-10-07 0:04

134:22 Q. Do you know why Mr. Keefer left Re: [134:22 to 134:23] SUSTAINED

134:23 the military? Pltf Obj 402, 403 Incomplete

designation

134:25 - 134:25 O'Brien, Shane 2020-10-07 0:03

134:25 A. I do not.

135:01 - 135:02 O'Brien, Shane 2020-10-07 0:04

135:01 Q. Were you aware that Mr. Keefer Re: [135:01 to 135:02] SUSTAINED

135:02 received an Article 15? Pltf Obj 402, 403

135:04 - 135:07 O'Brien, Shane 2020-10-07 0:16

135:04 A. I do not. I did not, nor do I Re: [135:04 to 135:07] SUSTAINED

135:05 care to know. Pltf Obj 402, 403 

135:06 Q. Did he ever tell you that he was

135:07 accused of sexual harassment in the Army?

135:09 - 135:10 O'Brien, Shane 2020-10-07 0:06

135:09 A. I did not, and I don't care to Re: [135:09 to 135:10] SUSTAINED

135:10 know specifics. Pltf Obj 402, 403

135:15 - 135:16 O'Brien, Shane 2020-10-07 0:07

135:15 Q. Did Mr. Keefer ever tell you that Re: [135:15 to 135:16] SUSTAINED

135:16 he was accused of lying in the Army? Pltf Obj 402, 403, Misstates,

vague, 602

135:18 - 135:19 O'Brien, Shane 2020-10-07 0:12

135:18 A. Accused or -- No. Re: [135:18 to 135:19] SUSTAINED

135:19 Q. Well, anything related to lying? Pltf Obj 402, 403, vague, 602

135:21 - 135:21 O'Brien, Shane 2020-10-07 0:00

135:21 A. No. Re: [135:21 to 135:21] SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 97 of 102
Pltf Obj 402, 403, vague, 602

136:02 - 136:03 O'Brien, Shane 2020-10-07 0:06

136:02 Q. Did Mr. Keefer ever tell you he Re: [136:02 to 136:03] SUSTAINED

136:03 was demoted a rank while in the Army? Pltf Obj 402, 403

136:05 - 136:06 O'Brien, Shane 2020-10-07 0:17

136:05 A. No, he didn't. I have no Re: [136:05 to 136:06] SUSTAINED

136:06 recollection of that. Pltf Obj 402, 403

136:23 - 137:07 O'Brien, Shane 2020-10-07 1:34

136:23 Q. After Mr. Keefer left the

136:24 military, were you still staying in contact

136:25 with him the same general amount that we've

137:01 discussed today?

137:02 A. Yes. Him and Emily.

137:03 Q. How often have you been in

137:04 contact with Emily Keefer?

137:05 A. Maybe a few times a year. Like

137:06 when Trinity graduated and -- I mean, that was

137:07 probably the last time.

137:24 - 138:01 O'Brien, Shane 2020-10-07 0:10

137:24 Q. Okay. Did Mr. Keefer ever talk Re: [137:24 to 138:01] OVERRULED

137:25 about problems that Emily and he had in their Pltf Obj 402, 403

138:01 marriage?

138:03 - 138:04 O'Brien, Shane 2020-10-07 0:11

138:03 A. I mean, I'm sure we've talked Re: [138:03 to 138:04] OVERRULED

138:04 about their past. Pltf Obj 402, 403

138:15 - 138:16 O'Brien, Shane 2020-10-07 0:07

138:15 Q. Did Mr. Keefer ever tell you why Re: [138:15 to 138:16] SUSTAINED

138:16 they got divorced? Pltf Obj 402, 403

138:18 - 138:18 O'Brien, Shane 2020-10-07 0:00

138:18 A. No. Re: [138:18 to 138:18] SUSTAINED

Pltf Obj 402, 403

139:02 - 139:03 O'Brien, Shane 2020-10-07 0:03

139:02 Q. Were there any allegations of Re: [139:02 to 139:03] SUSTAINED

139:03 infidelity on either side? Pltf Obj 402, 403

139:05 - 139:05 O'Brien, Shane 2020-10-07 0:14

139:05 A. Not that I know of. Re: [139:05 to 139:05] SUSTAINED

Pltf Obj 402, 403

139:06 - 139:07 O'Brien, Shane 2020-10-07 0:10

139:06 Q. Did Mr. Keefer ever claim that Re: [139:06 to 139:07] OVERRULED

139:07 his divorce was caused by his alleged tinnitus? Pltf Obj 402, 403, vague, 602

139:09 - 139:10 O'Brien, Shane 2020-10-07 0:07

139:09 A. Not that I can recall. Re: [139:09 to 139:10] OVERRULED

139:10 Q. Did he ever mention to you that Pltf Obj 402, 403, vague, 602

Re: [139:10 to 139:12] OVERRULED

Pltf Obj 402, 403

139:10 - 139:12 O'Brien, Shane 2020-10-07 0:09

139:10 Q. Did he ever mention to you that Re: [139:09 to 139:10] OVERRULED

139:11 his hearing loss played a role in his divorce Pltf Obj 402, 403, vague, 602

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 98 of 102
139:12 with Emily?

Re: [139:10 to 139:12] OVERRULED

Pltf Obj 402, 403

139:14 - 139:14 O'Brien, Shane 2020-10-07 0:13

139:14 A. Not to my knowledge. Re: [139:14 to 139:14] OVERRULED

Pltf Obj 402, 403

145:21 - 145:24 O'Brien, Shane 2020-10-07 0:15

145:21 Q. Has Mr. Keefer ever told you that

145:22 his alleged hearing loss has affected his

145:23 ability to do his work as a law enforcement

145:24 officer?

146:01 - 146:05 O'Brien, Shane 2020-10-07 0:16

146:01 A. We never spoke to that -- to

146:02 that, no.

146:03 Q. Has he ever mentioned whether his

146:04 alleged tinnitus affects his job as a law

146:05 enforcement officer?

146:07 - 146:15 O'Brien, Shane 2020-10-07 1:35

146:07 A. So as I said before, we don't Re: [146:07 to 146:15] OVERRULED

146:08 talk shop or job, we talk family and how the Pltf Obj compound, 611;

146:09 family is doing and what their next thing they leading; misstates

146:10 may do on their agenda. We don't really get

146:11 into the details of our work.

146:12 Q. So then it sounds like to me the

146:13 answer would be, no, he hasn't spoken about how

146:14 his alleged tinnitus has impacted his job as a

146:15 law enforcement with you; is that correct?

146:17 - 146:20 O'Brien, Shane 2020-10-07 0:15

146:17 A. My answer would be: I don't Re: [146:17 to 146:20] OVERRULED

146:18 recall. Pltf Obj vague

146:19 Q. Has Mr. Keefer ever discussed his

146:20 health with you?

146:22 - 147:06 O'Brien, Shane 2020-10-07 1:36

146:22 A. You know, I have a cold or

146:23 something like that. Other than that, no. You

146:24 know, we may -- We're both big boys; and, you

146:25 know, we both may be like: Hey, I'm losing

147:01 weight, what are you doing? This is what I put

147:02 up for bench. This is what I put up for squat.

147:03 So on and so forth. But in the details of his

147:04 health, no.

147:05 Q. Has he ever spoken to you about

147:06 applying for disability from the VA?

147:08 - 147:10 O'Brien, Shane 2020-10-07 0:23

147:08 A. Not that I can recall.

147:09 Q. Has he ever discussed having

147:10 sleep apnea with you?

147:12 - 147:21 O'Brien, Shane 2020-10-07 0:27

147:12 A. Recently, because I just got on a Re: [147:12 to 147:21] SUSTAINED

147:13 CPAP myself, and there -- the dialogue of that Pltf Obj 611; leading; 

147:14 was: I'm on a CPAP too. You should look into

147:15 that.

147:16 Q. And was that you telling him he

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 99 of 102
147:17 should look into a CPAP or Lewis telling you?

147:18 A. Lewis telling me.

147:19 Q. So Mr. Keefer was telling you,

147:20 you should look into a CPAP machine?

147:21 A. Yes.

148:19 - 148:24 O'Brien, Shane 2020-10-07 0:24

148:19 Q. What about PTSD, has he ever Re: [148:23 to 148:24] SUSTAINED

148:20 discussed whether he experiences symptoms of Pltf Obj For 148:23-24:

148:21 PTSD with you? Incomplete designation, MIL C2

148:22 A. No. I do not recall. - unrelated disability claims

148:23 Q. Did he ever discuss having a knee

148:24 injury with you?

149:01 - 149:02 O'Brien, Shane 2020-10-07 0:11

149:01 A. No. Not that I can recall. A

149:02 shoulder -- I can't -- I can't remember. No.

149:03 - 149:08 O'Brien, Shane 2020-10-07 0:19

149:03 Q. What about a shoulder injury? Re: [149:03 to 149:08] SUSTAINED

149:04 A. Knee -- I was trying to think of Pltf Obj MIL C2 - unrelated

149:05 all the joints. I can't think of any joint disability claims

149:06 issues he had, to the best of my knowledge.

149:07 Q. He never told you about a right

149:08 elbow injury, either?

149:10 - 149:13 O'Brien, Shane 2020-10-07 0:11

149:10 A. Not that I can recall with Re: [149:10 to 149:13] SUSTAINED

149:11 certainty. Pltf Obj MIL C2 - unrelated

149:12 Q. Did he ever tell you about having disability claims

149:13 arthritis in his spine?

149:15 - 149:18 O'Brien, Shane 2020-10-07 0:09

149:15 A. No. Not that I know of. Re: [149:15 to 149:18] SUSTAINED

149:16 Q. What about having migraine Pltf Obj MIL C2 - unrelated

149:17 headaches, is that something he's ever brought disability claims

149:18 up to you?

149:20 - 149:22 O'Brien, Shane 2020-10-07 0:16

149:20 A. Not to my knowledge. Re: [149:20 to 149:22] SUSTAINED

149:21 Q. Has he ever mentioned filing or Pltf Obj MIL C2 - unrelated

149:22 applying for VA disability for aging? disability claims

149:24 - 149:25 O'Brien, Shane 2020-10-07 0:04

149:24 A. For getting older? Re: [149:24 to 149:25] SUSTAINED

149:25 Q. Yeah. For aging. Pltf Obj MIL C2 - unrelated

disability claims

150:02 - 150:03 O'Brien, Shane 2020-10-07 0:06

150:02 A. No. But that's a new one to me. Re: [150:02 to 150:03] SUSTAINED

150:03 I should apply too. Pltf Obj MIL C2 - unrelated

disability claims

150:04 - 150:07 O'Brien, Shane 2020-10-07 0:11

150:04 Q. What about -- What about for

150:05 hearing, has he ever spoken about his

150:06 difficulty hearing or alleged difficulty

150:07 hearing with you?

150:09 - 150:12 O'Brien, Shane 2020-10-07 0:23

150:09 A. Not to my knowledge. Re: [150:09 to 150:12] OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 100 of 102
150:10 Q. After leaving the Army, have you Pltf Obj Vague, 602; 702

150:11 noticed Mr. Keefer having any difficulty

150:12 hearing you in conversation?

150:14 - 150:18 O'Brien, Shane 2020-10-07 0:18

150:14 A. Not -- No. Not necessarily. But Re: [150:14 to 150:18] OVERRULED

150:15 I also talk really loud. Pltf Obj Vague, 602, 

150:16 Q. But he's never complained about

150:17 having difficulty hearing -- hearing you; is

150:18 that right?

150:21 - 150:22 O'Brien, Shane 2020-10-07 0:06

150:21 Q. Since leaving the Army, has he Re: [150:21 to 150:22] OVERRULED

150:22 complained about ringing in his ears? Pltf Obj Vague, 602

150:24 - 151:01 O'Brien, Shane 2020-10-07 0:11

150:24 A. Not to my knowledge. Re: [150:24 to 151:01] OVERRULED

150:25 Q. Has he ever complained about Pltf Obj cumulative, 602,

151:01 tinnitus? vague

151:04 - 151:08 O'Brien, Shane 2020-10-07 0:26

151:04 A. Not to my knowledge. Re: [151:04 to 151:08] OVERRULED

151:05 Q. Have you ever discussed how Pltf Obj vague, compound

151:06 hearing difficulties or tinnitus may be

151:07 affecting his ability to take care of his

151:08 family?

151:10 - 151:17 O'Brien, Shane 2020-10-07 1:33

151:10 A. No. Not to my knowledge. The Re: [151:10 to 151:17] OVERRULED

151:11 only time hearing ever came up was with me, Pltf Obj vague, compound 

151:12 because I have some severe difficulty hearing,

151:13 which is why you're on headset with me right

151:14 now.

151:15 Q. Has that been something that

151:16 you've discussed with him multiple times or a

151:17 one-time instance that you had that discussion?

151:19 - 151:24 O'Brien, Shane 2020-10-07 0:17

151:19 A. I think just the one time, that I Re: [151:19 to 151:24] OVERRULED

151:20 can recall. Pltf Obj 611; leading, vague

151:21 Q. And during that time that you

151:22 brought up your hearing difficulties, Mr.

151:23 Keefer never brought up any difficulties that

151:24 he had; is that right?

152:01 - 152:06 O'Brien, Shane 2020-10-07 0:25

152:01 A. Not to my knowledge. We were

152:02 talking about me, not him, at that time.

152:03 Q. Are you -- I'll reask that.

152:04 Has Mr. Keefer ever told you

152:05 whether hearing difficulties or ringing in the

152:06 ears has impacted his ability to sleep?

152:08 - 152:12 O'Brien, Shane 2020-10-07 0:19

152:08 A. Not to my knowledge.

152:09 Q. Has he ever mentioned whether his

152:10 hearing loss or ringing in his ears has

152:11 impacted his ability to do chores around the

152:12 house?

152:14 - 152:17 O'Brien, Shane 2020-10-07 0:14

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 101 of 102
152:14 A. Not to my knowledge.

152:15 Q. Has he ever told you whether his

152:16 hearing loss or ringing in the ears has

152:17 impacted his ability to get a job?

152:19 - 152:24 O'Brien, Shane 2020-10-07 0:13

152:19 A. Not to my knowledge.

152:20 Q. Has he ever told you whether his

152:21 hearing loss or ringing in the ears has

152:22 impacted his ability to get a promotion at a

152:23 job?

152:24 A. I do --

152:24 - 152:24 O'Brien, Shane 2020-10-07 0:00

152:24 A. I do --

153:01 - 153:01 O'Brien, Shane 2020-10-07 0:13

153:01 A. Not to my knowledge.

Case 7:20-cv-00137-MCR-GRJ Document 116-1 Filed 03/24/21 Page 102 of 102