EXHIBIT 1

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Pltf Objections 3M Objection

11:03 ‐ 11:06 Battler, Leanne 2020‐09‐10

11:03 Q. Good morning. Would you identify

11:04 yourself for the jury, please.

11:05 A. My name is Lieutenant Colonel

11:06 Leanne Marie Battler.

15:13 ‐ 16:06 Battler, Leanne 2020‐09‐10

15:13 Q. Why don't you start with ‐‐ start Re: [15:13 to 16:06]

15:14 with college. You attended Brock University? Pltf Obj Improper bolstering,

15:15 A. Yes, I did. Yes. I graduated in 402/403, improper attempt to

15:16 1989. qualify lay witness as expert

15:17 Q. And after that, you attended SUNY

15:18 Buffalo where you obtained a doctor of

15:19 audiology?15:20 A. Yes, that's correct.

15:21 Q. Any other formal education?

15:22 A. In between there, I went to ‐‐ I

15:23 attended Georgian College in Orillia, Ontario,

15:24 graduated in 1991 as an audiometric technician.

15:25 Q. Okay.16:01 A. And then worked in Toronto for

16:02 several years, and then overseas before I went

16:03 back to get my doctorate.

16:04 Q. Okay. Are you currently licensed

16:05 as an audiologist?

16:06 A. Yes.

16:10 ‐ 16:18 Battler, Leanne 2020‐09‐10

16:10 Q. Approximately when did you become Re: [16:10 to 16:18] 

16:11 licensed? Pltf Obj Improper bolstering,16:12 A. 2004. 402/403, improper attempt to

16:13 Q. Are you a member of any qualify lay witness as expert

16:14 professional associations or groups?

16:15 A. Yes. ASHA, American Speech and

16:16 Hearing Association, and the Military Audiology

16:17 Association, National Hearing Conservation

16:18 Association, and American Academy of Audiology.

16:25 ‐ 20:06 Battler, Leanne 2020‐09‐10

16:25 Q. Could you ‐‐ When did you join Re: [16:25 to 20:06]

17:01 the Army? Pltf Obj Improper bolstering,

17:02 A. 2003. I was commissioned as a 402/403, improper attempt to

17:03 green card holder. qualify lay witness as expert

17:04 Q. Could you give the jury an (702), 611 leading, 701, 802

17:05 overview of your career in the Army and the

17:06 role that you played over the years in the

17:07 Army?17:08 A. In 2003, I was commissioned as a

17:09 fourth‐year intern at the older Walter Reid

17:10 Army Medical Center, so I was commissioned as a

17:11 first lieutenant; and at the conclusion of that

17:12 year, I was moved to Fort Hood, Texas; I was

17:13 there as the Army Hearing Program manager until

17:14 2006, and that's where I also got my ASHA

17:15 certificate of clinical competence and my

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 2 of 305
17:16 license.

17:17 Then from 2006 to 2010, '11, I

17:18 was at Fort Carson in Colorado, I was the Army

17:19 Hearing Program manager. During that time I

17:20 deployed to Iraq for five months, in 2008, it

17:21 was from March to July 2008, as the brigade

17:22 audiologist individual augment team.

17:23 Then in 2011, I moved to Fort

17:24 Richardson, Alaska; en route I stopped at Fort

17:25 Benning and became a paratrooper; after Alaska,

18:01 so 2012 to 2016, then I moved to Germany and

18:02 was the Regional Army Hearing Program

18:03 consultant, until 2018; at which time I came

18:04 back to DC.

18:05 Q. And what are your duties

18:06 currently?18:07 A. I'm a staff audiologist.

18:08 Q. Okay. You indicated that you, in

18:09 2003, if I understood correctly, you were a

18:10 third‐ or fourth‐year intern; is that correct?

18:11 A. Yes.18:12 Q. Okay. And so does that mean that

18:13 your internship had started earlier?

18:14 A. So for the doctor of audiology

18:15 degree the requirement is a four‐year

18:16 postgraduate degree which incorporates two

18:17 thousand clinical hours. So the first thousand

18:18 are acquired during the first three years

18:19 concurrently with academics, and then the

18:20 fourth year is that final one thousand clinical

18:21 hours. So I was commissioned as a first

18:22 lieutenant because I did not have the doctoral

18:23 degree yet.

18:24 Q. Understood. In your

18:25 authorization, there is a mention of a 2001

19:01 internship with the Army Hearing Program. Can

19:02 you describe what that is?

19:03 A. Yes. So I was still a student at

19:04 SUNY Buffalo; and during the summer of 2001 I

19:05 married an American soldier, Richard Cleveland,

19:06 who was stationed at Aberdeen Proving Ground at

19:07 the time. So, yeah, we got married, and we

19:08 were at Aberdeen. And actually, my husband19:09 called the CHPPM and spoke with Dr. Ohlin and

19:10 said: My wife thinks you're a God and would

19:11 love to work with you. And I had an interview,

19:12 and, yeah, I spent the summer working there.

19:13 Q. Okay. Did you hold Dr. Ohlin in

19:14 high regard?

19:15 A. Yes. Very high regard.

19:16 Q. And why did you hold Dr. Ohlin in

19:17 high regard?19:18 A. Probably because ‐‐ Because I

19:19 also ‐‐ One of my instructors at SUNY Buffalo

19:20 was Donald Henderson, who also mentioned a lot

19:21 of the work of Dr. Ohlin during my class as his

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19:22 student.

19:23 Q. And did you regard Dr. Ohlin,

19:24 from your interaction with him, as competent at

19:25 the tasks he performed?

20:01 A. (Witness nods head in the

20:02 affirmative.)20:03 Q. You have to answer audibly yes or20:04 no for the videographer.

20:05 A. Oh, yes. Yes. Very, very

20:06 competent.

20:21 ‐ 24:24 Battler, Leanne 2020‐09‐10

20:21 Q. Why don't you start with your Re: [20:21 to 24:24]

20:22 duties during the internship. Pltf Obj Improper bolstering,

20:23 A. Right. So at Aberdeen, with Dr. 402/403, improper attempt to

20:24 Ohlin? qualify lay witness as expert

20:25 Q. Yes. (702), 611 leading, 701, 80221:01 A. So primarily, it was ‐‐ I worked

21:02 with, at the time, Major Cheryl Cameron, who

21:03 has since retired. We did a lot of CAOC

21:04 courses, so the technician training,

21:05 troubleshooting with the events in CCA, DOEHRS

21:06 audiometers; some work with Leanne Demanico,

21:07 helping her with the DOEHRS system, again.

21:08 I sat in on a health hazard

21:09 assessment team, we did noise measurements out

21:10 in the field, I prepared briefings. I did

21:11 basically anything I was asked to do. But at

21:12 some ‐‐ even some patient care, we did go over

21:13 to the occupational health clinic a few times

21:14 and do some patient testing.21:15 Q. And did you do some work with the

21:16 Combat Arms Version 2 during your internship?

21:17 A. Not work, as much as just I

21:18 learned about them and ‐‐ and I took several

21:19 back to SUNY Buffalo where I did an independent

21:20 study using them.21:21 Q. What did you learn about the

21:22 Combat Arms Version 2 during your 2001

21:23 internship?21:24 A. That they were the first

21:25 nonlinear earplug that I had ever heard of, and

22:01 ‐‐ and pretty ‐‐ pretty cool.

22:02 Q. And why do you describe them as

22:03 pretty cool?

22:04 A. Because they allowed the wearer

22:05 to hear things, I think ‐‐ Well, I know that

22:06 one of the reasons why people reject hearing

22:07 protection is because of the fear of being

22:08 overattenuated and not being able to hear

22:09 things that could cost their own life or limb.

22:10 Q. And why is that a concern in the

22:11 military?22:12 A. Because you need to hear ‐‐ You

22:13 need to hear the bad guys. Hearing is a ‐‐ is

22:14 a three‐hundred‐and‐sixty‐degree,

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22:15 twenty‐four‐hour awareness. So if you can't

22:16 hear what's going on around you, then ‐‐ then

22:17 you're a liability.

22:18 Q. Have you worn the Combat Arms

22:19 Version 2 yourself?

22:20 A. Yes.

22:21 Q. And did you have any trouble

22:22 fitting the Combat Arms Version 2 in your ear?

22:23 A. I fortunately have very average

22:24 size ear canals, so they did fit me well.

22:25 Q. Great. Did you need to roll back

23:01 the flanges to fit the Combat Arms Version 2 in

23:02 your ear?

23:03 A. No.23:04 Q. And when you fit the Combat Arms

23:05 Version 2 in your ear, did they maintain their

23:06 seal?23:07 A. Yes.23:08 Q. When you fit the Combat Arms

23:09 Version 2 in your ear, did they provide you

23:10 with adequate hearing protection?

23:11 A. Yes.

23:12 Q. Would ‐‐ Would you wear the

23:13 Combat Arms Version 2 today based on what you

23:14 know?23:15 A. Yes.23:16 Q. Have you also fit other

23:17 individuals with the Combat Arms Version 2?

23:18 A. Yes.

23:19 Q. And am I correct that, as with

23:20 other preformed earplugs, the regulations

23:21 require a medically trained personnel to

23:22 provide the initial fit?23:23 A. Yes.

23:24 Q. And why is it that the

23:25 regulations require that a preformed earplug be

24:01 trained (sic) by medically trained personnel?

24:02 A. Because they come in different

24:03 sizes, and ears come in different sizes. And

24:04 the fact that it's preformed means it's ‐‐ it's

24:05 not adjustable, like the foam plugs ‐‐ Even the

24:06 foam plugs are not one‐size‐fits‐all. There's

24:07 ‐‐ That was the one thing that Doug said

24:08 constantly is, if you remember one thing,

24:09 remember there's no such thing as one size fits24:10 all.24:11 Q. And were there ‐‐ Were there

24:12 certain service members who the ‐‐ when you

24:13 were doing your work fitting the Combat Arms

24:14 Version 2 did not fit?

24:15 A. Yes.

24:16 Q. And in instances where you were

24:17 fitting a service member for whom the Combat

24:18 Arms Version 2 did not fit, what would you do

24:19 then?24:20 A. Then we would go to the

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24:21 traditional triple‐flange, size small or large,

24:22 you know, whatever was appropriate. And then

24:23 if I had funding, I would take impressions to

24:24 do custom hearing protection at that time.

25:06 ‐ 25:17 Battler, Leanne 2020‐09‐10

25:06 Let's go to page 67, at the bottom. The bottom Re: [25:06 to 25:17]

25:07 right right now, it says 55. And let's mark Pltf Obj 402/403 ‐ 87 page

25:08 this as the next exhibit, which is Exhibit newsletter document contains

25:09 Number 1. various other stories that are

25:10 Do you recognize this document, wholly irrelevant and include

25:11 Lieutenant Colonel Cleveland? hearsay 802‐As to the Fort

25:12 A. Yes. Carson story itself, includes

25:13 Q. Can you tell the jury what it is? speculation and

25:14 A. This is my paper. generalizations about Military

25:15 Q. And what's the title? habit/compliance that should

25:16 A. Fort Carson, An Army Hearing be excluded under 406.

25:17 Program Success Story.

25:21 ‐ 27:22 Battler, Leanne 2020‐09‐10

25:21 Q. Do you recognize the diagram,

25:22 Figure 3, at the top of page 70?

25:23 A. Yes.25:24 Q. And does that ‐‐ Does that help

25:25 to illustrate some of your duties as an

26:01 audiologist?26:02 A. Yes.

26:03 Q. Can you describe, in summary

26:04 form, how?26:05 A. So the Army Hearing Program has26:06 four main components: Hearing readiness,26:07 operational hearing services, clinical hearing

26:08 services, and hearing conservation. So this26:09 diagram was to describe hearing readiness,

26:10 which is designed for soldiers, rather than

26:11 noise‐exposed civilians who would be in a

26:12 traditional OSHA‐type hearing conservation

26:13 program.26:14 So the first thing that we always

26:15 did was the otoscopic examination, which is

26:16 looking in the ear canal to determine after why

26:17 kind of ‐‐ you can tell just by looking at the

26:18 ear canal what size of hearing protection the

26:19 person was going to require.

26:20 We're also looking to see if we

26:21 can visualize the tympanic membrane and make

26:22 sure that there's no active pathology before we

26:23 would fit them with the hearing protector.

26:24 If the ear canals were clear, we

26:25 would continue with the earplug fitting. If we

27:01 could not visualize the tympanic membrane, we

27:02 would send the soldier to have their ears

27:03 cleaned out.27:04 And then after ‐‐ Going back to27:05 the earplug fitting, we would pull them ‐‐ pull

27:06 up their hearing health record in the DOEHRS

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27:07 database and MEDPROS, and we would determine,

27:08 you know, does this person already have a

27:09 hearing loss, do they have normal hearing, so

27:10 we have some idea what to expect; and also

27:11 we'll be able to tell if there's been a

27:12 significant change in the hearing test that

27:13 we're about to do.

27:14 Then we would test the hearing.

27:15 If there was a STS, or significant threshold

27:16 shift, then we would tell them they needed to

27:17 retest no sooner than twenty‐four hours, and no

27:18 later than thirty days; then if there was no

27:19 STS, we would update the records, say you're

27:20 good to go. But the most important part was

27:21 always the earplug fitting and the hearing

27:22 health education.

33:11 ‐ 34:13 Battler, Leanne 2020‐09‐10

33:11 Q. Okay. Could you summarize the Re: [33:11 to 34:13]

33:12 conclusion of your article: Fort Carson, An Pltf Obj 402/403 prejudicial

33:13 Army Hearing Program Success Story for the generalizations about Military

33:14 jury? practices; 404/406 improper

33:15 A. Right. So basically, the habit/character

33:16 regulation had said, for quite some time, that generalizations on Military;

33:17 the military audiologist should spend no more 701 and 602 improper

33:18 than 50 percent of their time involved patient generalizations; 802

33:19 care, and the rest of the time we should be out

33:20 there doing the training and the inspections

33:21 and the evaluations to prevent hearing loss.

33:22 But the problem was, with

33:23 hospital commanders, typically, seeing us as

33:24 REU generating potential, were reluctant to

33:25 release us from our clinical obligation 50

34:01 percent of the time.34:02 And so I started this whole

34:03 project as a quality assurance project. And I

34:04 believe that it showed that by releasing me,

34:05 and the other audiologists, by assigning a

34:06 second military audiologist to Fort Carson, we

34:07 still, between the two of us, seeing patients

34:08 50 percent of the time, were still able to

34:09 maintain the prior 100 percent clinical

34:10 mission, while simultaneously preventing

34:11 hearing loss and drastically reducing the

34:12 amount of hearing loss while we were an Army at

34:13 war.

34:25 ‐ 35:22 Battler, Leanne 2020‐09‐10

34:25 Model, which said you need one audiologist and Re: [34:25 to 35:22]

35:01 2.5 technicians for every 18,000 soldiers, that Pltf Obj 701 and 602; improper

35:02 was in the era of paper medical charts. lay witness opinions;

35:03 MR. MONSOUR: Objection. speculation; 403; 802; cut

35:04 Responsiveness. This calls for an expert includes Nomellini sidebar

35:05 opinion beyond the scope of the Touhy. testimony that he's 'limiting35:06 Q. You can proceed. to her personal capacity'

35:07 MAJ WALD: Ma'am, you're not

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 7 of 305
35:08 allowed to elicit expert testimony. Please

35:09 don't answer the question.

35:10 Q. Can you just answer based on

35:11 your ‐‐ just based on your personal experience?

35:12 MR. MONSOUR: Objection. Still35:13 calls for an expert opinion, regardless of

35:14 whether personal or not.

35:15 MAJ WALD: Ma'am, please don't

35:16 answer the question.35:17 THE WITNESS: Understood.35:18 MR. NOMELLINI: Okay. Major

35:19 Wald, I am limiting it to her personal

35:20 experience. I may ‐‐ We may need to ask the

35:21 Court for assistance regarding this. But for

35:22 now I will go to another part of the document.

37:01 ‐ 38:14 Battler, Leanne 2020‐09‐10

37:01 Could you read the next two Re: [37:01 to 38:14]

37:02 paragraphs on page 70 of your article. I Pltf Obj Speculation; 701 and

37:03 should start with ‐‐ Start with the next 602 improper lay witness

37:04 paragraph, beginning with: The initial group. opinion; improper

37:05 A. The initial group of soldiers who generalizations about Military37:06 were deployed to the first cycle of Operation practices, 403, 406,

37:07 Iraqi Freedom did so without the Combat Arms cumulative/doc speaks for

37:08 earplugs, which are currently a Rapid Fielding itself

37:09 Initiative issue to all deploying soldiers.

37:10 The Combat Arms earplugs allow low‐level

37:11 sounds, such as speech, to pass through

37:12 unimpeded. The nonlinear filter in the Combat

37:13 Arms earplug dampens high‐level impulse noise

37:14 such as weapons fire. As with all earplugs,37:15 proper size and fit are crucial. During the

37:16 initial deployments for the Global War on

37:17 Terror, the Combat Arms earplug, and

37:18 conventional earplugs for soldiers were often

37:19 not available, not wanted, or not fitted

37:20 properly, which resulted in the dramatic STS

37:21 increase in 2003.

37:22 Q. Thank you. So one of the

37:23 sentences that you just read says: As with all

37:24 earplugs, proper size and fit are crucial.

37:25 Based on your ‐‐ Based on your personal

38:01 experience, is that true both for the Combat

38:02 Arms and other earplugs?

38:03 A. Yes.

38:04 Q. And why is that true, that proper

38:05 size and fit are crucial?

38:06 A. Because no two ears are the same.

38:07 Q. What could happen, in your

38:08 personal experience with service members, if

38:09 there is not proper size and fit?

38:10 A. Well, then ‐‐ Then they won't ‐‐

38:11 They won't protect the soldier as optimally as

38:12 they could.38:13 Q. And in your experience, who had

38:14 the responsibility for ensuring proper fit?

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38:24 ‐ 39:07 Battler, Leanne 2020‐09‐10

38:24 A. Well, if I gave you a Kevlar Re: [38:24 to 39:07]

38:25 helmet that was two sizes too big or two sizes Pltf Obj Speculation; 701 and

39:01 too small, it wouldn't protect you. 602 improper lay witness

39:02 Q. Is the same true of earplugs like opinion; improper

39:03 the Combat Arms earplug? generalizations about Military39:04 A. Absolutely. practices, 403, 404/406; 802

39:05 Q. In your view, who had

39:06 responsibility for ensuring that the Combat

39:07 Arms earplugs were fitted proper?

39:17 ‐ 43:05 Battler, Leanne 2020‐09‐10

39:17 A. I mean, ultimately, the final Re: [39:17 to 43:05]

39:18 responsibility comes down to the soldier. Pltf Obj Speculation; 701 and

39:19 Q. And why do you say the final 602 improper lay witness

39:20 responsibility comes down to the soldier? opinion; improper

39:21 A. We fit the earplug, we tell you generalizations about Military39:22 how to wear the earplug, but if the soldier practices, 402/403, 404/406;

39:23 chooses not to use the earplug, then that's 802

39:24 their choice ‐‐ or not to use it in the way

39:25 that we have trained them to.

40:01 Q. Okay. So with respect to your

40:02 personal experience with the Combat Arms

40:03 earplug, how did you train the soldiers to use

40:04 the earplug?

40:05 A. At the SRP site, when they came

40:06 through for their predeployment hearing test,

40:07 after we looked in the ear, we would give

40:08 everyone a set of size medium, regular sheath,

40:09 triple‐flange or quad‐flange earplugs, and then

40:10 we would train them all to use their opposite

40:11 hand, you know, pull the ear up and back, twist

40:12 and push, until the ‐‐ the final flange, the

40:13 third or fourth flange, was flush with the

40:14 opening of the ear canal. Then we would tell

40:15 them to do a tug test to make sure they felt

40:16 some suction or resistance. Then we would do

40:17 an additional tug test to say yes, you have

40:18 adequate suction or resistance, then we would

40:19 make them do the other ear.40:20 And once we determined that they

40:21 were either a size medium or small or large,

40:22 with the cheap earplugs, then we would try the

40:23 Combat Arms earplug, and do the same thing,

40:24 pull ‐‐ reach with your opposite hand, pull the

40:25 ear up and back, twist and push, do the tug

41:01 test, both ears, because often one ear canal is

41:02 bigger than the other. So just because you're

41:03 a size medium in one ear, doesn't mean you're

41:04 going to be a size medium in both ears.

41:05 And right then ‐‐ I mean, it was

41:06 a pretty intense process.

41:07 Q. And in your personal experience

41:08 with these different kinds of earplugs, did you

41:09 give service members the choice among the

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41:10 various earplugs or was it the case that they

41:11 had to use a certain earplug, or did it vary?

41:12 A. So we would actually ‐‐ Because

41:13 we fitted them to determine the initial

41:14 size‐ish, get a good estimate what size Combat

41:15 Arms earplug they would be, and we fitted them

41:16 with the regular, inexpensive triple or

41:17 quad‐flange, then they would have those pair.

41:18 So we give them the ‐‐ so linear hearing

41:19 protection and a case, plus the nonlinear

41:20 hearing protection and a case.

41:21 So I guess they had ‐‐ Initially,

41:22 there was only one Combat Arms earplug, but

41:23 then when the version with the pistol came out,

41:24 then some people preferred that ‐‐ they called

41:25 them the bumblebees, the yellow and olive drab.

42:01 So if I had more than one version, then I would

42:02 let them choose.42:03 Q. Okay. And you were saying, I

42:04 guess, they had a ‐‐ were you going to say that

42:05 you guessed that the service members had a

42:06 choice between the earplugs?

42:07 A. So we would give them ‐‐ We'd

42:08 give them as many as we could.

42:09 Q. Okay. So in other words, you'd

42:10 give the service members more than one of the

42:11 various types of earplugs?

42:12 A. Yes.

42:13 Q. And what types of earplugs did

42:14 you provide, other than the Combat Arms?

42:15 A. So the ‐‐ Well, there's the

42:16 orange triple‐flange; or the blue Elvex

42:17 Quattro; or the size small green triple‐flange;

42:18 or the Howard light mint green, they were also

42:19 size small; or the other Howard light smedium,

42:20 we called them smedium, because they were kind

42:21 of in between a small and a medium; and then

42:22 the large blue triple‐flange, based on what

42:23 they were fitted at.42:24 Q. So among those earplugs, for the

42:25 ones that fit them, they had the choice as to

43:01 which ones to use?43:02 A. (Witness nods head in the

43:03 affirmative.)43:04 Q. Is that correct?43:05 A. Yes. Correct. Uh‐huh.

44:20 ‐ 45:07 Battler, Leanne 2020‐09‐10

44:20 Q. Based on your personal experience Re: [44:20 to 45:07] 

44:21 with the CAEv2, you indicated that the CAE and Pltf Obj 602, 611,

44:22 conventional earplugs for soldiers were often Speculation, leading,

44:23 not available or not wanted. What's your basis 701/702/602, 403, 802;

44:24 for that? conjecture

44:25 A. Right. Okay. The ‐‐ Well,

45:01 during the initial deployment, they weren't

45:02 available. They weren't available. And ‐‐ Or,

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45:03 as I said, the fear of being overattenuated and

45:04 not ‐‐ not able to hear external sounds with

45:05 use of a linear earplug caused a lot of

45:06 soldiers to reject them and not use them at

45:07 all.

45:10 ‐ 46:04 Battler, Leanne 2020‐09‐10

45:10 Q. Thank you, Lieutenant Colonel. Re: [45:10 to 46:04]

45:11 And you also indicated, based on your personal Pltf Obj 611, Leading,

45:12 experience with the usage and application of speculation, compound;

45:13 the CAEv2, that the ‐‐ during the initial 602/701/702; 403; 404/406; 802

45:14 deployments, the CAE was sometimes not fitted

45:15 properly. What's your basis for that?

45:16 A. When I deployed, and the Rapid

45:17 Fielding Initiative truck pulled up, and I went

45:18 there to get my uniforms and my boots and my

45:19 knee pads and my pocket tool, they threw a pair

45:20 of Combat Arms earplugs at me and said: Here

45:21 you go.45:22 Q. Was that concerning to you?

45:23 A. Yes.

45:24 Q. Why was that concerning to you?

45:25 A. Because they're not one size fits

46:01 all and there was no education provided as to

46:02 when to put which end in your ear, how to ‐‐

46:03 how to pull the ear up and back, twist and

46:04 push, do the tug test, none of that.

46:20 ‐ 47:20 Battler, Leanne 2020‐09‐10

46:20 So you were describing as part of Re: [46:20 to 47:20]

46:21 the Rapid Fielding Initiative, when you Pltf Obj 611 leading,

46:22 deployed, the truck pulled up and you were compound, asked/answered;

46:23 handed a pair of Combat Arms earplugs without 402/403; conjecture

46:24 ‐‐ without instructions; correct?

46:25 A. Correct.

47:01 Q. And this was in what year?

47:02 A. 2008.

47:03 Q. Okay. And was there ‐‐ Was there

47:04 anything in writing that accompanied the Combat

47:05 Arms earplugs when you received them in 2008?

47:06 A. No.47:07 Q. And did they ‐‐ did they come in

47:08 a little baggy as part of the Rapid Fielding

47:09 Initiative or some kind of packaging or just

47:10 stand‐alone?47:11 A. Just two earplugs.

47:12 Q. Okay. And were there ‐‐ Were

47:13 there other service members with you at the

47:14 time you were provided your earplugs?

47:15 A. Yes.47:16 Q. Okay. What other service members

47:17 were with you in 2008 when you were provided

47:18 Combat Arms earplugs as part of the Rapid

47:19 Fielding Initiative, approximately how many?

47:20 A. Oh, five.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 11 of 305
48:01 ‐ 48:05 Battler, Leanne 2020‐09‐10

48:01 Q. Okay. And did you have concern Re: [48:01 to 48:05]

48:02 that as part of the Rapid Fielding Initiative, Pltf Obj 611 leading,

48:03 other service members would be getting the compound, speculation,

48:04 earplugs without fitting instructions? asked/answered; 402/403; 406;

48:05 A. Yes. conjecture

48:08 ‐ 49:14 Battler, Leanne 2020‐09‐10

48:08 Q. And based on your personal Re: [48:08 to 49:14]

48:09 experience, why did you have that concern for Pltf Obj 611 leading and calls

48:10 other service members as part of the Rapid for speculation; 402/403; 802;

48:11 Fielding Initiative? 404/406, 701; conjecture

48:12 A. Because ‐‐ Because there's no

48:13 such thing as one size fits all, and because

48:14 there was ‐‐ they had no idea ‐‐ my assumption

48:15 was that they had no idea which end was which.

48:16 Q. And so ‐‐ And so based on your ‐‐

48:17 your personal experience, was it your

48:18 understanding that as part of the Rapid

48:19 Fielding Initiative, service members like

48:20 yourself were receiving the Combat Arms Version

48:21 2 without instruction and fitting?

48:22 A. Yes, that's correct.

48:23 Q. And was the basis of that

48:24 understanding?48:25 A. The basis is that there was no

49:01 instruction given.49:02 Q. And did you have any discussions

49:03 with others in the audiologist community, or

49:04 other service members, about the fact that

49:05 earplugs were being given out as part of the

49:06 Rapid Fielding Initiative without instruction

49:07 and fitting?49:08 A. Yes.

49:09 Q. Tell the jury about the

49:10 discussions you had with other ‐‐ other service

49:11 members regarding the fact that in the Rapid

49:12 Fielding Initiative, Combat Arms earplugs were

49:13 being provided without proper instruction and

49:14 fitting.

49:16 ‐ 49:21 Battler, Leanne 2020‐09‐10

49:16 A. So I tried to coordinate with the Re: [49:16 to 49:21]

49:17 Rapid Fielding Initiative leadership to allow Pltf Obj 402,802, vague

49:18 us to access those ‐‐ those Combat Arms

49:19 earplugs and fit them concurrently with the

49:20 predeployment hearing test. And sometimes I

49:21 was successful, sometimes not. But . . .

50:08 ‐ 50:25 Battler, Leanne 2020‐09‐10

50:08 Q. Yes. So you said sometimes your Re: [50:08 to 50:25]

50:09 efforts were not successful in terms of proper Pltf Obj 402/403, 611 vague,

50:10 fitting and instructions for the Combat Arms as leading, speculation, 802,

50:11 part of the Rapid Fielding Initiative, not your 406, 701, 802

50:12 clinic, the Rapid Fielding Initiative, can you

50:13 describe that?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 12 of 305
50:14 A. Sure. Right. We tried to get

50:15 them to relinquish their supply of Combat Arms

50:16 earplugs to our clinic, and sometimes

50:17 contractors were more than happy to say: Yep,

50:18 here you go, take them all. Others were like:

50:19 No, these are ‐‐ it's not ‐‐ We're not handing

50:20 them over, this is what we do. And . . .

50:21 Q. Okay. So you said contractors

50:22 would tell you they're not handing them over,

50:23 they wanted to provide the Combat Arms directly

50:24 to the troops without instruction or fitting;

50:25 correct?

51:03 ‐ 51:04 Battler, Leanne 2020‐09‐10

51:03 A. That is ‐‐ That was my Re: [51:03 to 51:04]

51:04 experience, yes. Pltf Obj 402/403, conjecture,

vague 611, 802

52:01 ‐ 52:12 Battler, Leanne 2020‐09‐10

52:01 Q. Okay. The contractors you're Re: [52:01 to 52:12]

52:02 referring to, these are supply contractors who Pltf Obj Speculation; 402/403;

52:03 are supplying Combat Arms, these are not the compound question;

52:04 manufacturers of the earplug; correct? asked/answered; 701/602;

52:05 A. Correct. conjecture; 406

52:06 Q. Okay. So the contractors that

52:07 you are referring to, who are supplying the

52:08 Combat Arms earplugs as part of the Rapid

52:09 Fielding Initiative without proper instruction

52:10 and fitting, that is not 3M or Aearo; correct?

52:11 A. Not to my knowledge. They were

52:12 just regular civilian contractors.

52:19 ‐ 52:21 Battler, Leanne 2020‐09‐10

52:19 Q. Okay. But they were people who Re: [52:19 to 52:21]

52:20 would show up in trucks with Combat Arms Pltf Obj Vague, Leading,

52:21 earplugs and other earplugs; correct? 402/403 relevance, conjecture

52:24 ‐ 52:25 Battler, Leanne 2020‐09‐10

52:24 A. They would have earplugs and all Re: [52:24 to 52:25]

52:25 of the other Rapid Fielding Initiative items. Pltf Obj Nonresponsive

answers; conjecture; 402/403;611 compound questions, vague,

leading, asked/answered

53:01 ‐ 54:09 Battler, Leanne 2020‐09‐10

53:01 Q. Okay. So that's a helpful Re: [53:01 to 54:09]

53:02 clarification. So these contractors who would Pltf Obj Nonresponsive

53:03 ‐‐ who would show up and would provide the answers; conjecture; 402/403;

53:04 Combat Arms earplugs without proper instruction 611 compound questions, vague,

53:05 or fitting, they didn't just provide hearing leading, asked/answered; 802;

53:06 protection, they also would come up ‐‐ show up 406; 602/701

53:07 in the truck with other Rapid Fielding

53:08 Initiative equipment; right?53:09 A. Yes, that's correct.

53:10 Q. And could you describe what were

53:11 some of the other types of equipment?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 13 of 305
53:12 A. Oh, we got our uniforms and boots

53:13 and socks and T‐shirts and coats and our

53:14 multitool and knee pads, elbow pads, our body

53:15 armor, all of it.

53:16 Q. Okay. So referring back to

53:17 Exhibit 1, and back to page 70, at the bottom,

53:18 you said: During the initial deployment for53:19 the Global War on Terror, the CAE and

53:20 conventional earplugs for soldiers were often

53:21 not available, not wanted, or not fitted

53:22 properly, which resulted in the dramatic

53:23 increase in STS in 2003. And on that, I want

53:24 to be very careful, and I want to limit you to

53:25 your personal experience and the scope of the

54:01 Touhy authorization.54:02 So with respect to your personal

54:03 experience regarding CAEv2 usage and

54:04 application with the Army, which is what you're

54:05 authorized under the August 13, 2020, letter,

54:06 how did the CAE and conventional earplugs for

54:07 soldiers not being available or wanted or not

54:08 being fitted properly result in the dramatic

54:09 STS increase in 2003?

54:13 ‐ 54:24 Battler, Leanne 2020‐09‐10

54:13 A. So, again, I pulled these numbers Re: [54:13 to 54:24]

54:14 historically from the DOEHRS data repository. Pltf Obj Speculation;

54:15 I was obviously not in the Army in 2002. But Nonresponsive; 402/403; 802;

54:16 if the earplugs were not available and not 602/701

54:17 fitted, and there was a war, and the hearing

54:18 loss increased, and that was not the case when

54:19 those hearing protection devices were fitted,

54:20 then, to me, that's a significant correlation.

54:21 Q. Thank you. Okay. If you look at54:22 the next sentence. Can you read the next

54:23 sentence of your article to the jury, please,

54:24 beginning with: The elimination?

55:05 ‐ 55:21 Battler, Leanne 2020‐09‐10

55:05 A. The elimination of the Army Re: [55:05 to 55:21]

55:06 audiologist's authorization from Fort Carson in Pltf Obj foundation;

55:07 2002 resulted in the abandonment of key speculation; 602/701; 402/403;

55:08 concepts, such as hearing loss prevention 802

55:09 education and the emphasis on hearing

55:10 protection devices and their proper use.

55:11 Q. Okay. And, again, I want to be

55:12 careful to limit this to the scope of your

55:13 authorization. So based on your personal

55:14 knowledge regarding CAEv2 usage and

55:15 application, can you describe how the

55:16 elimination of the Army audiologist's

55:17 authorization from Fort Carson in 2002 resulted

55:18 in the abandonment of key concepts, such as

55:19 hearing loss prevention education and the

55:20 emphasis on hearing protection devices and55:21 their proper use?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 14 of 305
55:25 ‐ 56:05 Battler, Leanne 2020‐09‐10

55:25 A. When I was at Fort Carson, the Re: [55:25 to 56:05]

56:01 civilian audiologist, who was there during Pltf Obj Foundation; 402/403;

56:02 2002, when the authorization was eliminated, he 802; incomplete designation;

56:03 ‐‐ he was a retired Army audiologist, and did 602/701

56:04 his best, but was limited ‐‐ had very little

56:05 time outside of the clinic, because he was a

56:18 ‐ 56:20 Battler, Leanne 2020‐09‐10

56:18 Q. Okay. This will be marked as Re: [56:18 to 56:20]

56:19 Exhibit 3. Can you take a look at this Pltf Obj Foundation; 402/403;

56:20 document and tell us what it is? 802;

57:01 ‐ 57:11 Battler, Leanne 2020‐09‐10

57:01 Q. Do you recognize it as Department

57:02 of Defense Instruction 6055.12 for the DoD

57:03 Hearing Conservation Program?

57:04 A. Yes.

57:05 Q. And the instruction contains a

57:06 number of requirements for the Hearing

57:07 Conservation Program at the DoD components;57:08 right?57:09 A. Yes.

57:10 Q. And if you look at 6.6.5 of this

57:11 instruction.

57:14 ‐ 59:07 Battler, Leanne 2020‐09‐10

57:14 Q. It says: Personnel shall be Re: [57:14 to 59:07]

57:15 allowed to choose personal hearing protection Pltf Obj 402/403; Speculation;

57:16 from among those approved devices, available Conjecture; 602/701; vague;

57:17 through supply channels unless medically document speaks for itself;

57:18 contraindicated or inappropriate for particular

57:19 hazardous noise exposure; correct?

57:20 A. Yes.

57:21 Q. So Army service members were able

57:22 to choose what hearing protection device they

57:23 wear while in service, whether it be the Combat

57:24 Arms or some alternative to the Combat Arms;

57:25 correct?58:01 A. Based on what we had.

58:02 Q. Correct. And sometimes you did58:03 not have the Combat Arms available; correct?

58:04 A. That's correct.

58:05 Q. Sometimes the only hearing

58:06 protection devices that were available were

58:07 hearing protection devices other than the

58:08 Combat Arms; correct?

58:09 A. Yes. That's correct.58:10 Q. If you look at 6.6.7, is it

58:11 correct that the regulations required the

58:12 preformed earplugs such as the Combat Arms

58:13 shall be fitted and issued only under the

58:14 supervision of personnel who have been

58:15 specifically trained to fit earplugs?

58:16 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 15 of 305
58:17 Q. 6.6.9. What does 6.6.9 require?

58:18 A. So the idea is that when each

58:19 troop comes in for their annual hearing tests,

58:20 at that time we will also inspect their

58:21 existing hearing protection and fit them with

58:22 new hearing protection.58:23 Q. Okay. So medically trained58:24 personnel must examine the fit and condition of

58:25 preformed earplugs like the Combat Arms at

59:01 least annually; correct?

59:02 A. Yes.59:03 Q. 6.6.10: Personnel shall require

59:04 ‐‐ receive adequate and effective training in

59:05 the proper care and use of personal hearing

59:06 protectors; correct?59:07 A. Yes.

59:16 ‐ 63:11 Battler, Leanne 2020‐09‐10

59:16 Q. Can you explain what enclosure 6 Re: [59:16 to 63:11] 

59:17 of the DoD Instruction 6055.12 is? Pltf Obj 402/403; 602/701/702;

59:18 A. So these are the instructions how conjecture; 611 vague,

59:19 to properly fit and insert and check for leading, speculation

59:20 adequate seal your hearing protection.

59:21 Q. Okay. And you've seen these

59:22 instructions before?

59:23 A. Yes.59:24 Q. Okay. Could you read instruction

59:25 number 3, in the general information?60:01 A. Number three: Plugs tend to work

60:02 loose as a result of talking and chewing and

60:03 must be reseated.

60:04 Q. Okay. And you understood that to

60:05 be true based on your experience with the

60:06 Combat Arms and other preformed earplugs, that

60:07 plugs tend to work loose as a result of talking

60:08 and chewing and must be reseated?60:09 A. Yes.

60:10 Q. Okay. And based on your

60:11 experience, was that equally true of the

60:12 various preformed earplugs or did that tend to

60:13 happen more with some preformed earplugs than

60:14 others?60:15 A. That was true for all earplugs.

60:16 Q. Okay. So for all earplugs,

60:17 whether it be the CAEv2 or something else,

60:18 plugs tend to work loose as a result of talking

60:19 and chewing; correct?

60:20 A. Yes.60:21 Q. And is that ‐‐ Is that something

60:22 that, based on your personal experience, was

60:23 known within the audiological community?

60:24 A. Yes.

60:25 Q. And when ‐‐ When an earplug works

61:01 itself loose as a result of talking or chewing,

61:02 could ‐‐ is that something that when you were

61:03 wearing earplugs, that you could tell based on

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 16 of 305
61:04 auditory clues from the ambient noise?

61:05 A. Yes.

61:06 Q. So ‐‐ So I used ‐‐ I used words

61:07 like auditory clues and ambient noise, but can

61:08 you describe in simple terms for the jury how

61:09 you could tell, when you were wearing Combat

61:10 Arms and other preformed earplugs, if the

61:11 earplugs had loosened.61:12 A. Basically, with any jaw movement,

61:13 you would hear the ambient ‐‐ you would hear

61:14 the outside cutting in and out as ‐‐ as the

61:15 earplug would shift.

61:16 Q. Okay. And it's important for an

61:17 earplug to maintain its seal; correct?

61:18 A. Yes.

61:19 Q. And why is that important?

61:20 A. Because sound ‐‐ Sound can travel

61:21 through the tiniest little opening, and, in

61:22 fact, the external ear is designed to funnel

61:23 those sounds and direct them into the ear

61:24 canal.61:25 Q. Okay. And then you were

62:01 describing earlier, if an earplug did not

62:02 maintain its seal, that's something that you

62:03 could tell when you were wearing them; correct?

62:04 A. Yes.62:05 Q. And if you were wearing an

62:06 earplug and it did not maintain its seal, and

62:07 you received an auditory clue, what would you

62:08 do then?62:09 A. Same as the direction here,

62:10 opposite hand, pull the ear up and back, twist

62:11 and push, wait ‐‐ feel for that final flange

62:12 flush with the opening in the ear canal, do a

62:13 tug test.

62:14 Q. So an earplug losing its seal, in

62:15 your experience, that's not something that's

62:16 out of the ordinary; correct?

62:17 A. Correct.62:18 Q. Okay. And let me ask you, with

62:19 respect to the Combat Arms Version 2, did you

62:20 ever roll back the flanges for service members

62:21 when you were fitting that earplug?

62:22 A. No.

62:23 Q. Okay. So in those instances, you

62:24 did not need to roll back the flanges to obtain

62:25 an appropriate fit; correct?

63:01 A. If I was not able to attain an

63:02 appropriate fit without ‐‐ Well, I never tried

63:03 rolling back. If I did not obtain an adequate

63:04 fit with the earplug as ‐‐ as it was, then I

63:05 didn't recommend ‐‐ I would recommend an

63:06 alternate hearing protection device.

63:07 Q. Okay. So if you ‐‐ If you were

63:08 unable to fit the soldier, then you would

63:09 recommend to the soldier that a different

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 17 of 305
63:10 hearing device be used; correct?

63:11 A. Correct.

63:12 ‐ 63:25 Battler, Leanne 2020‐09‐10

63:12 Q. In the instances where you

63:13 successfully fit service members

with Combat

63:14 Arms earplugs, did you ever see the

Combat Arms

63:15 earplugs lose their seal in the

soldier's ear

63:16 after you had fit them?

63:17 A. Inside the clinic or downrange?

63:18 Q. Inside the clinic.

63:19 A. No.63:20 Q. In the instances where you fit

63:21 service members with Combat Arms

earplugs, did

63:22 you ever witness those earplugs

losing their

63:23 seal at any time?

63:24 A. I mean, I would only see them for

63:25 a few minutes after we achieved the

seal.

64:09 ‐ 65:08 Battler, Leanne 2020‐09‐10

64:09 Q. Did any service member ever Re: [64:09 to 65:08] 

64:10 complain to you about Combat Arms earplugs? Pltf Obj 802 and HS w/in HS;

64:11 A. I heard things like they were 402/403; vague; 701/702

64:12 kind of ‐‐ the plastic was hard, they would improper opinion testimony;

64:13 have preferred a softer silicone, and that they speculation 602/611

64:14 didn't like how far out they stuck. But those

64:15 were the ‐‐ Those were the two main ‐‐ And when

64:16 they would drop into the dirt, then they

64:17 wouldn't be able to find it.

64:18 Q. Okay. Those things relating to

64:19 the comfort and how far out they stuck and

64:20 dropping into the dirt, based on your

64:21 experience, did they ever impede the

64:22 performance of the Combat Arms earplug in terms

64:23 of keeping out sound?

64:24 A. No.

64:25 Q. Any complaints from ever ‐‐ any

65:01 service member ever about that the Combat Arms

65:02 earplug was not effective in terms of keeping

65:03 out sound?

65:04 A. No.65:05 Q. And approximately how many

65:06 service members did you fit with the Combat

65:07 Arms earplug?

65:08 A. Thousands.

65:12 ‐ 65:22 Battler, Leanne 2020‐09‐10

65:12 Q. Let's mark as the next exhibit Re: [65:12 to 65:22] 

65:13 Tab 22. We'll mark this as Exhibit Number 4. Pltf Obj 402/403;

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 18 of 305
65:14 Can you identify this document,

65:15 Lieutenant Colonel Battler?

65:16 A. Yes. This is the DA PAM 40‐501.

65:17 Q. What is the DA PAM 40‐501?

65:18 A. This was the precursor to the

65:19 Army Hearing Program. The Army Hearing ‐‐ This

65:20 was the old Army Hearing Conservation Program

65:21 based on the OSHA model for noise‐exposed

65:22 civilian personnel.

66:02 ‐ 66:14 Battler, Leanne 2020‐09‐10

66:02 Q. So this document ‐‐ The Re: [66:02 to 66:14]

66:03 regulation we were looking at earlier, Exhibit Pltf Obj Objections are 

66:04 3, pertained to the Armed Forces. And this related to 66:8‐14;

66:05 document, the DA PAM pertains to the Army Foundation; mischaracterizes

66:06 specifically, right, Lieutenant Colonel? evidence; conjecture; 402/403;

66:07 A. Yes. 701/702

66:08 Q. And if you look at section 6.3,

66:09 characteristics, for the Combat Arms and other

66:10 preformed earplugs, medically trained personnel

66:11 were required to fit and examine the earplugs

66:12 at least annually to ensure proper fit and

66:13 condition; correct?66:14 A. Yes.

67:03 ‐ 69:03 Battler, Leanne 2020‐09‐10

67:03 Q. And I would focus you on your use Re: [67:03 to 69:03]

67:04 and your personal experience with respect to Pltf Obj Agree to: 67:24‐68:3;

67:05 Combat Arms earplugs. Those are triple‐flange Disagree as to remainder on

67:06 earplugs; correct? the follwing

67:07 A. So the triple‐flange are what we grounds:Conjecture; 402/403;

67:08 had mostly available, through the NSN 611 leading, asked/answered,

67:09 purchasing. vague; speculation, compound

67:10 Q. When you say the triple‐flange questions; 602/701/702

67:11 are what you had mostly available, you're improper opinion tesitmony;

67:12 referring to something other than the Combat 802;

67:13 Arms; correct?67:14 A. Yes.67:15 Q. Okay. So what you had mostly

67:16 available for service members was a

67:17 triple‐flange earplug other than the Combat

67:18 Arms?67:19 A. Yes.67:20 Q. And that's the first thing that

67:21 you tried to fit the service members with;

67:22 correct?67:23 A. Yes.67:24 Q. And approximately when did the

67:25 Combat Arms first become available in your

68:01 clinic?68:02 A. Probably 2004. Yes, at Fort

68:03 Hood. 2004.

68:04 Q. So you first tried to fit the

68:05 service members with a triple‐flange earplug

68:06 other than the Combat Arms; correct?68:07 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 19 of 305
68:08 Q. And sometimes the Combat Arms

68:09 were available and sometimes they were not;

68:10 correct?68:11 A. Yes.

68:12 Q. And if they were available, you

68:13 would try to fit the service member with the

68:14 Combat Arms; correct?

68:15 A. In addition to the linear

68:16 triple‐flange, yes.

68:17 Q. And sometimes the Combat Arms

68:18 would fit and sometimes the Combat Arms would

68:19 not fit; correct?

68:20 A. Yes.68:21 Q. And the Combat Arms were not a

68:22 one‐size‐fits‐all earplug, they fit some people

68:23 and not others; correct?

68:24 A. Yes.68:25 Q. And it was known in the

69:01 audiological community that Combat Arms did not

69:02 fit some percentage of service members;

69:03 correct?

69:07 ‐ 69:08 Battler, Leanne 2020‐09‐10 

69:07 Q. Based on your personal experience Re: [69:07 to 69:08]

69:08 and communications with them. Pltf Obj 802, speculation,

402/403

69:10 ‐ 69:18 Battler, Leanne 2020‐09‐10

69:10 A. Our ‐‐ Our training ‐‐ Our Re: [69:10 to 69:18] 

69:11 training ‐‐ Part of our training was that Pltf Obj Nonresponsive answer;

69:12 there's no such thing as one size fits all. 402/403; speculation; 611

69:13 Q. With respect to ‐‐ With respect leading, vague questions;

69:14 to preformed earplugs; correct? 701/702

69:15 A. With all earplugs.

69:16 Q. And so that would also be true of

69:17 the Combat Arms; correct?

69:18 A. Yes.

71:10 ‐ 71:21 Battler, Leanne 2020‐09‐10

71:10 Q. Okay. So with respect to the Re: [71:10 to 71:21] 

71:11 Combat Arms Version 2, though, in giving Pltf Obj Agree to

71:12 instruction to service members, you did not 71:10‐16;DISAGREE to 71:17‐21

71:13 provide anything to them in writing; correct? ‐ speculation; conjecture;

71:14 A. Oh. We had to ‐‐ CHPPM made the 701/702; 402/403; 406

71:15 card, the little wallet card, with the

71:16 instruction.71:17 Q. Okay. So what the ‐‐ What the

71:18 service members received in writing regarding

71:19 the Combat Arms earplug was the CHPPM wallet

71:20 card; correct?

71:21 A. When we had them available, yes.

71:24 ‐ 72:06 Battler, Leanne 2020‐09‐10

71:24 And did the service members,

71:25 based on your recollection, receive anything

72:01 other than the wallet card created by CHPPM

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 20 of 305
72:02 when you interacted with them in connection

72:03 with the Combat Arms?

72:04 A. Well, there was our verbal

72:05 instruction, and then when we did the hearing

72:06 health education, we had PowerPoint slides.

72:11 ‐ 72:17 Battler, Leanne 2020‐09‐10

72:11 Q. Okay. So the ‐‐ Based on your Re: [72:11 to 72:17] 

72:12 experience, the written materials that service Pltf Obj Asked and Answered;

72:13 members would have received relating to the Speculation; 611 leading,

72:14 Combat Arms would have been the CHPPM wallet compound, asked and answered;

72:15 card or a PowerPoint that the audiologist would conjecture;

72:16 have created; correct?

72:17 A. Yes.

73:05 ‐ 73:16 Battler, Leanne 2020‐09‐10

73:05 Q. So did you ever ask the ‐‐ any Re: [73:05 to 73:16] 

73:06 representatives of the manufacturer of the Pltf Obj 802; 402/403; 611

73:07 Combat Arms, either Aearo or 3M, to give leading, speculation, 701/702

73:08 presentations to service members relating to

73:09 the Combat Arms?

73:10 A. I ‐‐ I did not, no.

73:11 Q. And based on ‐‐ Based on your

73:12 personal experience, you would not have

73:13 expected the manufacturer of the Combat Arms or

73:14 its representatives to come onto bases to give

73:15 presentations to service members; correct?

73:16 A. No. That's correct.

74:04 ‐ 74:17 Battler, Leanne 2020‐09‐10

74:04 Q. Let me simplify it. In your Re: [74:04 to 74:17] 74:05 personal experience, the people who gave Pltf Obj Agree to 74:4‐12;

74:06 instructions to service members relating to the DISAGREE to 74:13‐17 ‐

74:07 use and fitting of Combat Arms were vague/confusing, speculation,

74:08 audiologists and medically trained personnel; compound, 402/403, 602/701

74:09 correct?74:10 A. Yes.

74:11 Q. At Fort Carson; correct?

74:12 A. Correct.

74:13 Q. Okay. And we already talked

74:14 about as part of the Rapid Fielding Initiative,

74:15 which is separate from Fort Carson and not

74:16 under you, service members did not always

74:17 receive that fitting and instruction; correct?

74:21 ‐ 75:08 Battler, Leanne 2020‐09‐10

74:21 Q. Based on your personal Re: [74:21 to 75:08] 

74:22 experience. Pltf Obj Mischaracterizes

74:23 A. Based on my personal experience, evidence; 611 leading,

74:24 that is correct. compound, asked/answered, 802;

74:25 Q. The regulations that we looked at 402/403

75:01 earlier, they ‐‐ they did not talk about the

75:02 manufacturers' representatives coming on to

75:03 bases to give instruction with respect to the

75:04 use and fitting of Combat Arms; correct?

75:05 A. That's correct.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 21 of 305
75:06 Q. They talk about audiologists and

75:07 medically trained personnel doing this; fair?

75:08 A. Yes.

75:12 ‐ 78:09 Battler, Leanne 2020‐09‐10

75:12 Q. Okay. Let's mark as the next Re: [75:12 to 78:09] 

75:13 exhibit Tab 11. And we'll call this Exhibit 5. Pltf Obj Improper bolstering,

75:14 And I want you to focus on the foundation, 402/403; 802;

75:15 portion of the email that's the July 8, 2004, speculation; leading, vague;

75:16 transmission at 9:26 and below, all the way 602/701

75:17 down to the bottom.75:18 Can you tell the jury what this

75:19 document is?

75:20 A. This is an email that my

75:21 ex‐husband sent to Doug Ohlin. He forwarded ‐‐

75:22 It was forwarded from a friend of my

75:23 ex‐husband, who was a active duty infantry

75:24 officer in Iraq who used the Combat Arms

75:25 earplugs that I fitted him with prior to his

76:01 deployment.76:02 Q. Okay. So let's ‐‐ Let's break

76:03 that down. The report, beginning where it

76:04 starts with: Hey, Diggs, who is that ‐‐ who is

76:05 the individual that is coming from?

76:06 A. It was coming from Ron Millis,

76:07 who is a Lieutenant Colonel at 11th Bravo ‐‐

76:08 11th Alpha infantry officer.

76:09 Q. Okay. And what's your

76:10 understanding of where Ron Millis was at the

76:11 time he sent this email?

76:12 A. Ron was emailing from Iraq, to my

76:13 husband, Richard, who people called Diggs, who

76:14 was in Kuwait at the time. And he just said,

76:15 again, you know, where ‐‐ yeah, had an

76:16 opportunity ‐‐76:17 Q. Let's break it down. So in

76:18 Exhibit Number 5, let's start ‐‐ Can you please

76:19 read to the jury the paragraph beginning with:

76:20 Well, the Millis luck.

76:21 A. Well, the Millis luck seems to be

76:22 holding.76:23 So this is Ron ‐‐ Ron speaking,

76:24 with the 11 Alpha infantry officer ranger: So

76:25 my family luck seems to be holding. I arrived

77:01 here the day before the ‐‐ the storm; and then

77:02 he defines the storm by saying, we've had the

77:03 most killed in action since Vietnam. We are

77:04 especially lucky ‐‐ and he's being sarcastic ‐‐

77:05 especially lucky that here in Camp Taji was the

77:06 Arty rocket mortar training base for Saddam

77:07 Hussein, so all of the out‐of‐work locals are

77:08 pretty good at indirect fire.

77:09 Q. So did you understand that to

77:10 mean that things were pretty intense where he

77:11 was?77:12 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 22 of 305
77:13 Q. Could you now read the next

77:14 paragraph in the email from this service member

77:15 in Iraq?

77:16 A. Right. So then he said: Hey,

77:17 did Leanne, your wife, have anything to do with

77:18 Combat Arms earplugs, the yellow and green

77:19 ones? They work great in this environment. I

77:20 was able to test them out two different times.

77:21 They probably made the difference between

77:22 eardrum/hearing damage and not. They

77:23 definitely allow you to mentally recover very

77:24 quickly so you are able to deal with your

77:25 situation, versus standing around like a

78:01 stunned mullet for a while.

78:02 Q. And what did you take that

78:03 paragraph to mean?78:04 A. I took that to mean that he had

78:05 been hit by at least one blast, and that the

78:06 Combat Arms earplug attenuated enough of the

78:07 percussion wave that it didn't knock the wind

78:08 out of him to the level that he was ‐‐ had

78:09 experienced prior.

79:08 ‐ 80:09 Battler, Leanne 2020‐09‐10

79:08 Q. Okay. So you understood Mr. Re: [79:08 to 80:09] 

79:09 Millis to be indicating that the Combat Arms Pltf Obj Speculation;

79:10 earplugs worked great in combat? nonresponsive answers; 802;

79:11 A. Yes. Dismounted ‐‐ He's an 611 vague, leading; 402/403;

79:12 infantry officer, dismounted operations. 602/701/702

79:13 Q. Okay. And he says that they

79:14 probably made the difference between

79:15 eardrum/hearing damage and not.

79:16 What did you understand that to

79:17 mean?79:18 A. I understood that as him saying

79:19 he was ‐‐ he was in a fire‐fight and exposed to

79:20 at least one blast, close range, and maintained

79:21 his hearing.

79:22 Q. While wearing the Combat Arms?

79:23 A. Yes.

79:24 Q. He also says in the next

79:25 sentence: They definitely allow you to

80:01 mentally recover very quickly so you are able

80:02 to deal with your situation versus standing

80:03 around like a stunned mullet for a while. What

80:04 did you understand that to mean?

80:05 A. My understanding was, again, that

80:06 was ‐‐ when you're hit ‐‐ a percussion wave, a

80:07 significant impulse noise, whether it's weapons

80:08 fire or blast exposure, affects your whole

80:09 body, not just your ears.

80:14 ‐ 80:18 Battler, Leanne 2020‐09‐10

80:14 Q. And reflecting on Mr. Millis' Re: [80:14 to 80:18] 

80:15 email, are you ‐‐ are you proud of your role Pltf Obj 402/403; 602/701/702

80:16 with respect to fitting the Combat Arms, in

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 23 of 305
80:17 terms of it ‐‐ the protection that it provided

80:18 to service members?

80:22 ‐ 81:08 Battler, Leanne 2020‐09‐10

80:22 A. I mean, Ron was at our wedding. Re: [80:22 to 81:08] 

80:23 I might have ‐‐ And that was the summer I was Pltf Obj Nonresponsive answer;

80:24 working at Aberdeen, I ‐‐ I'm pretty sure I 402/403; speculation; 611

80:25 fitted him. I'm very proud of that. leading, vague questions;

81:01 Q. Okay. So you're proud of fitting 701/702; impromper bolstering

81:02 Mr. Millis with the Combat Arms and the

81:03 protection that it provided to him in combat?

81:04 A. Yes.

81:05 Q. And in doing that, you were

81:06 helping the United States Military with respect

81:07 to its mission in Iraq?

81:08 A. Yes. Very proud of that.

81:19 ‐ 82:19 Battler, Leanne 2020‐09‐10

81:19 Q. Yes. Not just with respect to Re: [81:19 to 82:19] 

81:20 Mr. Millis, but with respect to the Combat Arms Pltf Obj 402/403; vague;

81:21 generally, and soldiers generally, are you mischaracterizes evidence;

81:22 proud of the role that you played with respect 602/701/702 improper

81:23 to fitting soldiers with Combat Arms? opinion/expert testimony;

81:24 A. And my response is yes, hundred speculation

81:25 percent.82:01 Q. And you say that, yes, a hundred

82:02 percent. Can you describe for the jury why

82:03 your answer is, yes, you're a hundred percent

82:04 proud of your role with respect to the Combat

82:05 Arms?82:06 A. This was ‐‐ These were the first

82:07 nonlinear earplugs, they were cutting‐edge

82:08 technology; for the first time, soldiers were

82:09 wanting ‐‐ wanting the hearing protection; they

82:10 had great things to say about it; and I was

82:11 part of history.

82:12 Q. And based on your personal

82:13 experience, and your ‐‐ and communications that

82:14 you had with soldiers, is it your ‐‐ as an

82:15 audiologist, is it your understanding that the

82:16 Combat Arms earplugs, which you helped to fit,

82:17 helped the military effort in Iraq and

82:18 Afghanistan?82:19 A. Absolutely.

82:25 ‐ 83:03 Battler, Leanne 2020‐09‐10

82:25 A. I believe that the earplug, the

83:01 Combat Arms earplug, Version 2, helped improve

83:02 situational awareness, survivability, and

83:03 lethality.

83:09 ‐ 83:11 Battler, Leanne 2020‐09‐10

83:09 With respect to your personal Re: [83:09 to 83:11] 

83:10 experience, how did the Combat Arms earplug Pltf Obj Speculation; 402/403;

83:11 help soldiers with situational awareness? 611; 602/701/702 improper

opinion/expert testimony;

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 24 of 305
improper bolstering

83:22 ‐ 84:08 Battler, Leanne 2020‐09‐10

83:22 A. So, yes. Again, a regular Re: [83:22 to 84:08] 

83:23 triple‐flange earplug, or foam earplug, which Pltf Obj Speculation; 802;

83:24 would overattenuate to the point that troops 402/403; 406; 602/701/702

83:25 felt they were not always able to hear sniper

84:01 fire or calls from their buddies. But that

84:02 was ‐‐ The overattenuation effect was

84:03 alleviated by the filter portion of the Combat

84:04 Arms earplug in dismounted operations.

84:05 Q. Based on ‐‐ Based on your84:06 personal experience and your communications

84:07 with service members, how did the Combat Arms

84:08 earplug help with survivability?

84:11 ‐ 86:11 Battler, Leanne 2020‐09‐10

84:11 A. Hearing is twenty‐four hours, Re: [84:11 to 86:11] 

84:12 three‐hundred‐sixty degrees. So if you're Pltf Obj Conjecture;

84:13 asleep, and someone is coming up to get you, speculation; nonresponsive

84:14 you could hear them, even if you had the Combat answers; 402/403; 602/701/702

84:15 Arms earplug in. improper opinion/expert

84:16 Q. And in your view, was that a opinions; 611 leading, vague,

84:17 positive feature of the Combat Arms? compound questions; vast

84:18 A. Hear the enemy, stay alive. generalizations; 802

84:19 Q. Let's talk about the third thing

84:20 that you said that the Combat Arms earplug

84:21 helped with, and that was with respect to

84:22 lethality. Did I get that right?

84:23 A. Yes.

84:24 Q. And based on your personal

84:25 experience and your communication with service

85:01 members, how did the Combat Arms earplug help

85:02 with respect to lethality?

85:03 A. It's really the same as

85:04 survivability.85:05 Q. Okay. How so?

85:06 A. So you can hear ‐‐ you can hear

85:07 the enemy.

85:08 Q. And have you had communications

85:09 with others in the audiological community about

85:10 how the Combat Arms earplugs helped soldiers

85:11 with situational awareness, survivability, and85:12 lethality?85:13 A. Yes.

85:14 Q. Who else in the audiological

85:15 community have you talked to about how the

85:16 Combat Arms Version 2 helped soldiers with

85:17 situational awareness, survivability, and

85:18 lethality?85:19 A. We all talk about it.

85:20 Q. Okay. And based on your

85:21 communications with others in the ‐‐ First of

85:22 all, when you're saying all, are you referring

85:23 to Army audiologists or all Armed Forces?

85:24 A. I've met a lot of ‐‐ I've met a

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 25 of 305
85:25 lot of audiologists in all of the services over

86:01 the last seventeen years. And as I say, I'm

86:02 very proud of the role I played, and I do

86:03 mention anecdotal encounters and reports that

86:04 I've heard from soldiers who I've seen in the

86:05 clinic.86:06 Q. Okay. And there were soldiers

86:07 who you've seen in the clinic who reported a

86:08 positive experience with respect to the Combat

86:09 Arms?86:10 A. Right. And downrange and in the

86:11 hazardous noise environments.

86:21 ‐ 88:01 Battler, Leanne 2020‐09‐10

86:21 Q. You ‐‐ The ‐‐ You said you had Re: [86:21 to 88:01] 

86:22 talked to others within the audiological Pltf Obj 802; 402/403; 404;

86:23 community about how the Combat Arms helped with Speculation; 611; vague;

86:24 situational awareness, survivability, and 602/701/702; leading

86:25 lethality for soldiers. Are there any in the

87:01 audiological community who shared your view

87:02 that the Combat Arms helped with those things,

87:03 based on your conversations?

87:04 A. I presented a lot of data at

87:05 military audiology meetings, and some people

87:06 did ask for copies of my slides at the end,

87:07 yes.87:08 Q. Okay. And did you present data

87:09 showing how the Combat Arms had helped

87:10 soldiers?87:11 A. Yes.87:12 Q. Okay. And could you describe

87:13 that data?

87:14 A. So it was related to my

87:15 deployment, which was in support of fielding a

87:16 different hearing protector. And in my data

87:17 collection, I thought, well, if you're going to

87:18 ask how do you like this new hearing protector,

87:19 then the best way to describe how you like it

87:20 would be comparing it to a series of other

87:21 hearing protectors. So that's how I collected

87:22 data, and I included the Combat Arms earplug as

87:23 one of the alternate types of hearing

87:24 protection, to compare things like situational

87:25 awareness, comfort, radial clarity, that sort

88:01 of thing.

88:05 ‐ 88:09 Battler, Leanne 2020‐09‐10

88:05 Q. So in 2008, you put together a

88:06 slide presentation comparing the Combat Arms

88:07 earplug to other earplugs in a variety of

88:08 respects; correct?88:09 A. Yes.

88:21 ‐ 88:25 Battler, Leanne 2020‐09‐10

88:21 Lieutenant Colonel Battler, can Re: [88:21 to 88:25] 

88:22 you describe how the Combat Arms fared Pltf Obj 611 Vague, Leading,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 26 of 305
88:23 compared to other earplugs in the analysis that 402/403, 701/702;

88:24 you did?88:25 A. Pretty well.

90:02 ‐ 90:12 Battler, Leanne 2020‐09‐10

90:02 Q. Okay. Exhibit 6, is that a Re: [90:02 to 90:12] 

90:03 PowerPoint you prepared? Pltf Obj 802; 402/403

90:04 A. Yes.

90:05 Q. Can you describe the background

90:06 behind this PowerPoint?

90:07 A. Oh. This was a presentation that

90:08 I made at the joint DoD and VA Audiology

90:09 Conference in 2009, basically summarizing the

90:10 results of my deployment to Iraq as an

90:11 individual augmentee with the 3rd Brigade

90:12 Combat Team, 4th Infantry Division.

90:18 ‐ 92:04 Battler, Leanne 2020‐09‐10

90:18 Q. Okay. And did your ‐‐ As part of Re: [90:18 to 92:04] 

90:19 your survey, did you ask for feedback on the Pltf Obj 802; 402/403;

90:20 Combat Arms and other hearing protection? speculation; 602/701/702;

90:21 A. Yes. conjecture; nonresponsive

90:22 Q. How did ‐‐ How did the Combat answers

90:23 Arms fare relatively to other hearing

90:24 protection in your survey?

90:25 A. Right. So as part of my mission,

91:01 so historically, the 4th Infantry Division was

91:02 known as the digital division, so they tested

91:03 and fielded all digital equipment before

91:04 anybody else.

91:05 So they were gifted these nine

91:06 hundred seventy‐five single channel and five

91:07 hundred seventy‐five dual channel, high‐level

91:08 electronic hearing protection systems. They

91:09 didn't receive them until they were actually in91:10 theater.91:11 So my mission was to collect

91:12 quality assurance data to see how they worked,

91:13 how soldiers liked them. So I thought, well, I

91:14 guess the best way to comment on one thing is

91:15 to compare it to another thing. And so I asked

91:16 ‐‐ I fitted all of these combat hearing aids

91:17 and then went back and took survey results, and

91:18 also measured their postdeployment audiogram

91:19 and compared it to their predeployment

91:20 audiogram to see if this group using this

91:21 high‐level electronic TCAPS, tactical

91:22 communication and hearing protection system, if

91:23 they fared better than groups using different

91:24 hearing protectors.91:25 So basically, I asked them how

92:01 they felt they worked in dismounted operations

92:02 versus mounted operations, radio communication,

92:03 situational awareness, comfort, a variety. So

92:04 I can ‐‐ I can review these slides ‐‐

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 27 of 305
92:08 ‐ 92:24 Battler, Leanne 2020‐09‐10

92:08 Q. Well, let's do ‐‐ Let's do a Re: [92:08 to 92:24] 

92:09 summary. First of all, what you're looking at Pltf Obj 402/403; speculation;

92:10 is TCAPS. Can you describe for the jury what 602/701/702

92:11 TCAPS is?

92:12 A. So TCAPS is the generic name to

92:13 encompass all electronic hearing systems, like

92:14 Kleenex is a brand of facial tissue, so, you

92:15 know, the QuietPro is a brand of TCAPS, same as

92:16 the Altor; anything electronic, anything that

92:17 has an active attenuation or amplification or

92:18 active noise reduction, or some combination of

92:19 those, designed to not only protect your

92:20 hearing but actually enhance your hearing

92:21 ability on the battlefield.

92:22 Q. And what is the price range of

92:23 TCAPS, like QuietPro, relative to the price of

92:24 Combat Arms Version 2 in your experience?

93:07 ‐ 93:25 Battler, Leanne 2020‐09‐10

93:07 A. At the time, this particular Re: [93:07 to 93:25]

93:08 system that I was evaluating, they were about a Pltf Obj Agree to 93:16‐19;

93:09 thousand dollars apiece. Disagree to the rest; 402/403;

93:10 Q. Okay. So the QuietPro you were 701/702

93:11 evaluating was about a thousand dollars apiece;

93:12 correct?93:13 A. Yes. The dual channel was

93:14 slightly more expensive than the single‐channel

93:15 units.93:16 Q. Okay. And the approximate price

93:17 of the Combat Arms Version 2?

93:18 A. At the time, I think it was about

93:19 seven dollars.93:20 Q. Okay. And you evaluated the

93:21 QuietPro, which was about a thousand dollars,

93:22 and the Combat Arms Version 2, which was

93:23 approximately seven dollars. And how did the

93:24 Combat Arms Version 2 perform for soldiers,

93:25 relative to the QuietPro?

94:04 ‐ 94:23 Battler, Leanne 2020‐09‐10

94:04 A. So I think right off the bat, one Re: [94:04 to 94:23] 

94:05 of the first questions in the survey was what Pltf Obj 402/403; 802;

94:06 kind of hearing protection did you use before, 602/701/702; speculation;

94:07 so what are you comparing the QuietPro to? And conjecture; 611 leading and

94:08 25 percent of the 79 respondents had used the compound

94:09 ‐‐ compared it to the Combat Arms earplug.

94:10 In terms of dismounted

94:11 operations, 35 percent of that group felt they

94:12 were equal. Mounted operations, speech clarity

94:13 they felt was equal. Fatigue, seventy ‐‐ about

94:14 70 percent felt that they were the same. In94:15 terms of generator ‐‐ around generator noise,

94:16 43 percent felt they were the same.

94:17 Situational awareness, 37 percent felt it was

94:18 the same. And that was ‐‐ so I mean, not bad.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 28 of 305
94:19 Q. So your overall take‐away, is it

94:20 fair to say, that the seven‐dollar Combat Arms,

94:21 based on your personal experience, surveys of

94:22 soldiers, performed approximately the same as

94:23 the one thousand dollar QuietPro?

95:02 ‐ 95:18 Battler, Leanne 2020‐09‐10

95:02 A. For a good portion of them. Not Re: [95:02 to 95:18] 

95:03 a majority, but a good portion, yes. Pltf Obj 402/403; 602/701/702;

95:04 Q. Okay. What was your personal speculation; conjecture; 611

95:05 take‐away from your study on use of the leading and compound

95:06 QuietPro versus use of the Combat Arms?

95:07 A. The QuietPro was kind of like a

95:08 smartphone, you had ‐‐ you had to have a lot of

95:09 practice with it before you could be

95:10 proficient. The Combat Arms earplug was much

95:11 more simple.95:12 Q. And based on ‐‐ Based on your

95:13 experience, would you recommend to soldiers the

95:14 Combat Arms versus the QuietPro?

95:15 A. At the level ‐‐ At the level of

95:16 development that both products were at in 2008,

95:17 yes, I'd recommend the Combat Arms over the

95:18 QuietPro.

96:07 ‐ 96:23 Battler, Leanne 2020‐09‐10

96:07 Q. Okay. You said that at the level Re: [96:07 to 96:23] 

96:08 of deployment that both products were at in Pltf Obj Vague/confusing;

96:09 2008, you'd recommend to soldiers the Combat 402/403; 802; 602/701/702

96:10 Arms Version 2 over the QuietPro. Why is that?

96:11 A. Because it was more portable, it

96:12 was easier to operate, the price point was a

96:13 factor as well. Soldiers were afraid ‐‐ If a96:14 piece of ‐‐ If a high‐value piece of equipment

96:15 is lost, then oftentimes soldiers are

96:16 responsible to replace it. And I know of

96:17 several soldiers who said they would rather

96:18 lose hearing than risk losing a high ‐‐

96:19 high‐value piece of equipment.

96:20 So they'd rather use a

96:21 seven‐dollar piece, that if they have to buy it

96:22 or have it repaired, then seven dollars is more

96:23 affordable.

97:11 ‐ 98:09 Battler, Leanne 2020‐09‐10

97:11 Q. Okay. You fit ‐‐ You fit Re: [97:11 to 98:09]

97:12 thousands of soldiers with Combat Arms; Pltf Obj 802; 404; 403

97:13 correct?97:14 A. Yes.97:15 Q. And did any of them come back to

97:16 you and complain that the Combat Arms did not

97:17 adequately protect their hearing?

97:18 A. Not one.97:19 Q. Did any of them come back to you

97:20 and complain that they experienced tinnitus

97:21 after using the Combat Arms?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 29 of 305
97:22 A. (Witness shakes head.)

97:23 Q. Is that a no?

97:24 A. No. I'm just ‐‐ I'm thinking.

97:25 Some soldiers would exaggerate or

98:01 feign hearing loss or tinnitus or both on their

98:02 postdeployment hearing test. But I don't

98:03 recall anyone saying it was a direct result of

98:04 using X, Y, or Z hearing protection.

98:05 Q. Okay. You said some soldiers

98:06 would exaggerate or feign hearing loss or

98:07 tinnitus on their postdeployment hearing test,

98:08 is that based on your personal experience and

98:09 observation of those soldiers?

98:13 ‐ 98:22 Battler, Leanne 2020‐09‐10

98:13 A. That is ‐‐ That is my experience, Re: [98:13 to 98:22] 

98:14 yes. Pltf Obj 611 leading,

98:15 Q. And how were you able to asked/answered; 402/403;

98:16 determine that? 602/701/702

98:17 A. We have ‐‐ Some of our tests

98:18 require no response from the patient. It's not

98:19 a matter of them pressing the button, their

98:20 brain will tell us how their hearing is.

98:21 Q. Okay. Can we go back to Tab 11,

98:22 which is Exhibit 5?

98:24 ‐ 99:14 Battler, Leanne 2020‐09‐10

98:24 Q. All right. Do you see the note Re: [98:24 to 99:14]

98:25 at the top it says: This note from Doug Ohlin Pltf Obj 802; 701/702;

99:01 re: Combat Arms in Iraq, we are helping. And improper bolstering; 404;

99:02 that's from Elliott Berger. 402/403

99:03 Do you see that?

99:04 A. Yes.

99:05 Q. Have you met Elliott Berger?

99:06 A. Yes.

99:07 Q. And is it ‐‐ Is it your view that

99:08 he is competent in the field of hearing

99:09 protection, based on your interaction with him?

99:10 A. Yes.

99:11 Q. And do you agree that the Combat

99:12 Arms was helping in Iraq, based on your

99:13 personal experience?99:14 A. Yes, I do.

99:18 ‐ 100:01 Battler, Leanne 2020‐09‐10

99:18 Q. Let's go to Tab 6, and mark it as Re: [99:18 to 100:01]

99:19 the next exhibit, which is Exhibit Number 8. Pltf Obj Agree to 99:23‐100:1; 

99:20 This exhibit is an email from Kathy Gates to Disagree to entry of Exhibit 8

99:21 Theresa Schultz and others, dated December 10, ‐ foundation; 802; 602;

99:22 2007. 402/403

99:23 Who is Kathy Gates?

99:24 A. Retired Colonel Dr. Kathy Gates

99:25 was our audiology consultant to the Surgeon

100:01 General.

100:06 ‐ 100:09 Battler, Leanne 2020‐09‐10

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 30 of 305
100:06 Q. Okay. So do you ‐‐ Do you recall

100:07 the date of when you deployed to Iraq for CAE

100:08 fitting?100:09 A. It was in March 2008.

101:06 ‐ 103:02 Battler, Leanne 2020‐09‐10

101:06 Q. So it says: Leanne Cleveland, Re: [101:06 to 103:02] 

101:07 audiologist at Fort Carson, serves as the Pltf Obj AGREE to 102:2‐12;

101:08 hearing expert and will deploy with the DISAGREE with 101:6‐20 and

101:09 division to continue to support this testimony based on Ex. 8 ‐

101:10 initiative. Soldiers were provided 802; 611; foundation; DISAGREE

101:11 predeployment hearing service, parentheses with 102:13 ‐ 701/702;

101:12 DOEHRS, audiogram, CAE fitting, health 402/403; 611 leading;

101:13 education, and QP training/fitting. vague/confusing

101:14 My question is: Does that101:15 refresh your recollection that you were

101:16 deployed in or around December 2007 to provide

101:17 CAE fitting and other predeployment hearing

101:18 services?101:19 A. There were ‐‐ The planned process

101:20 was in motion for me to deploy in March, yeah.

101:21 Q. Okay. Okay. So you deployed

101:22 with the division to support this initiative in

101:23 2008?101:24 A. I deployed after the division had

101:25 already left. I was an individual augmentee,

102:01 added later on.102:02 Q. Okay. And did you provide CAE

102:03 fitting as part of that deployment?

102:04 A. Through the SRP site, yes, with

102:05 their predeployment as discussed ‐‐ As before,

102:06 everybody was fitted with the linear earplugs,

102:07 triple‐flange or quad‐flange, and Combat Arms,

102:08 provided we had them.

102:09 Q. Okay. And SRP stands for?

102:10 A. Soldier Readiness Processing

102:11 Center, also sometimes just called Soldier

102:12 Readiness Center.

102:13 Q. Okay. And you did not have any

102:14 more difficulty fitting the Combat Arms, than

102:15 you did other earplugs; correct?

102:16 A. Difficulty, like?102:17 Q. Well, let me ask you this way:

102:18 Comparing Combat Arms with other earplugs, in

102:19 your personal experience, you did not find that

102:20 the Combat Arms earplugs were more likely to

102:21 lose their seal than other earplugs; correct?

102:22 A. Not including electronic TCAPS,

102:23 correct.102:24 Q. Okay. So I'm correct that Combat

102:25 Arms earplugs were not more likely to lose

103:01 their seal than other earplugs; yes?

103:02 A. In my experience, yes.

103:07 ‐ 103:20 Battler, Leanne 2020‐09‐10

103:07 Tab 3. This is Exhibit Number 9. Re: [103:07 to 103:20] 

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 31 of 305
103:08 Do you recognize this document? Pltf Obj 802; 403; Foundation;

103:09 A. Yes. Speculation 602; conjecture;103:10 Q. And what is it? 701/701

103:11 A. This is a quote from the Ron

103:12 Millis email to my husband, which my husband

103:13 forwarded to Doug Ohlin. And Doug said: Oh,

103:14 this is awesome. Can we use this ‐‐ Do you

103:15 think he'd mind if we use this in the card?

103:16 Q. So the document, Exhibit 9, this

103:17 is the wallet card that was provided to

103:18 soldiers, by the Army, in connection with the

103:19 Combat Arms Version 2?

103:20 A. Yes.

104:04 ‐ 104:21 Battler, Leanne 2020‐09‐10

104:04 Q. Okay. So the person who decided Re: [104:04 to 104:21]

104:05 to use the comment from Ron Millis on the card Pltf Obj 802; 403; 602;

104:06 was Doug Ohlin, who was with the Army; correct? Speculation; conjecture

104:07 A. Yes.

104:08 Q. And the card says at the bottom:

104:09 USACHPPM; right?

104:10 A. Yes.

104:11 Q. And, again, CHPPM is United

104:12 States Army Center for Health Promotion and

104:13 Preventative Medicine. So that's who the

104:14 wallet card came from; correct?

104:15 A. Yes.104:16 Q. And were you ‐‐ When you saw this

104:17 wallet card, were you proud of the wallet card

104:18 and the fact that it contained a quote from Ron

104:19 Millis, who you had fitted with an earplug and

104:20 whose hearing had been protected by the Combat

104:21 Arms?

104:24 ‐ 106:02 Battler, Leanne 2020‐09‐10

104:24 Q. Based on your personal Re: [104:24 to 106:02] 

104:25 experience. Pltf Obj 802; 402/403;

105:01 A. Yes, I was proud. speculation; 602/701/702

105:02 Q. And did ‐‐ When the ear ‐‐ When

105:03 the wallet card came out, do you ‐‐ do you

105:04 recall discussing with anyone: Hey, this is

105:05 based on a quote of somebody who I know?

105:06 A. Yes.

105:07 Q. Can you describe those

105:08 conversations for the jury, to the best of your

105:09 recollection?105:10 A. I ‐‐ I had a ‐‐ Ron sent me a

105:11 photo of him in all his battle rattle in Iraq,

105:12 and I used it in my hearing health briefings.

105:13 I said: Here is Lieutenant Colonel Ron Millis,

105:14 and there's his comment. And all the soldiers

105:15 loved it. Oh, it's so funny. It's Ron Millis.

105:16 They loved it during the briefings.

105:17 Q. Okay. When were these briefings

105:18 given?105:19 A. Usually during a safety

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 32 of 305
105:20 stand‐down day annually. Soldiers talk about,

105:21 you know, alcohol and heat injury, cold injury,

105:22 sexual harassment, it's just a day of just mass

105:23 education. And we tried to get our105:24 thirty‐minute presentation in there about

105:25 hearing protection, and the Army Hearing

106:01 Program, hearing readiness, purpose of

106:02 profiles, all of that.

106:05 ‐ 108:11 Battler, Leanne 2020‐09‐10

106:05 Q. Okay. In the first bullet at the Re: [106:05 to 108:11] 

106:06 bottom it says: Check proper fit by gently Pltf Obj 611 leading, compound

106:07 tugging on plugs for tension. questions; 402/403; 802; 406;

106:08 Do you agree with that and is 602/701/702; nonresponsive

106:09 that the part of the procedure that you used in answers

106:10 the clinic to check the proper fit of the

106:11 Combat Arms earplug?

106:12 A. Yes. That's ‐‐ I would call it

106:13 the tug test.

106:14 Q. Okay. So describe the tug test

106:15 and who did it and how it was done.

106:16 A. So I or my technicians, we would,

106:17 again, give the soldiers the preformed,

106:18 regular, nonlinear ‐‐ excuse me, linear

106:19 triple‐flanged or quad‐flanged earplugs, the

106:20 inexpensive version. Rather than us physically

106:21 putting them in, I said it's important for the

106:22 soldiers to know how to insert the hearing

106:23 protection themselves, because I would say:

106:24 I'm not going to be out there on the

106:25 battlefield next to you to put your earplugs

107:01 in, you need to learn how to do this yourself.

107:02 So we would demonstrate, and then

107:03 make them do it themselves, reaching up and

107:04 over with the opposite hand, pulling the pinna

107:05 up and back to straighten out the ear canal,

107:06 then pushing and twisting and turning until

107:07 that last flange was flush with the opening of

107:08 the ear canal; then letting go of the ear, and

107:09 doing the tug test. And then we would do a tug

107:10 test on top of it to make sure that they had

107:11 that suction or resistance.

107:12 Q. Lieutenant Colonel Battler, you107:13 testified earlier about your concern with the

107:14 Rapid Fielding Initiative and Combat Arms

107:15 earplugs being given out as part of the Rapid

107:16 Fielding Initiative without instruction and

107:17 fitting. Was part of that concern is that they

107:18 were not able to see the clinic demonstration

107:19 that you just described?

107:20 A. Yes. Yes. Definitely.

107:21 Q. And why is that?

107:22 A. Because you don't know what you

107:23 don't know. How could they know?107:24 Q. And when you say how could they

107:25 know, you're talking about soldiers who

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 33 of 305
108:01 received their Combat Arms earplugs as part of

108:02 the Rapid Fielding Initiative?

108:03 A. Right. Just looking at it, they

108:04 just think it's a funny‐looking earplug. They

108:05 ‐‐ You know, when I actually explained that one

108:06 side was linear and the other side was

108:07 nonlinear, and the reason for them being color

108:08 coded the way they were, one is for dismounted

108:09 operations, the other was for mounted, there

108:10 was always a light going on: Oh, why didn't

108:11 anybody ever tell me that?

108:20 ‐ 108:24 Battler, Leanne 2020‐09‐10

108:20 Q. And then there's ‐‐ It actually Re: [108:20 to 108:24] 

108:21 has a picture on the wallet card with the Pltf Obj Foundation;

108:22 flange folded back, do you see that, the lower incomplete designation

108:23 right?108:24 A. Yes, I do see that.

109:09 ‐ 110:15 Battler, Leanne 2020‐09‐10

109:09 Q. All right. Let's mark that fact Re: [109:09 to 110:15] 

109:10 sheet as Exhibit 10. It's Tab 2. Pltf Obj foundation;

109:11 Have you seen this document nonresponsive answers;

109:12 before, Lieutenant Colonel Battler? 701/702; 802; 402/403;

109:13 A. Yes. document speaks for itself

109:14 Q. Can you describe for the jury

109:15 what it is?

109:16 A. So this is ‐‐ explains how much

109:17 attenuation the Combat Arms earplug provides in

109:18 response to a variety of exposures to impulse

109:19 blasts.109:20 Q. Okay. And it's called Just the

109:21 Facts, the Combat Arms Earplug, that's the

109:22 title of the document; correct?

109:23 A. Yes.

109:24 Q. Okay. Could you ‐‐ The paragraph

109:25 that says communication and detection

110:01 capabilities, could you read that paragraph

110:02 beginning with communication, and down to the

110:03 second‐to‐last sentence. You don't need to

110:04 read the last sentence.

110:05 A. Communication and detection

110:06 capabilities. While high‐frequency impulse

110:07 noise is significantly reduced, most speech

110:08 energy is passed. In addition, a detection

110:09 model developed at the Army Research Lab

110:10 predicts a normal‐hearing soldier with an H1

110:11 profile, can detect a truck with a

110:12 low‐frequency noise signature at the same

110:13 distance, 800 meters, with or without the

110:14 nonlinear plug. That detection capability is110:15 cut in half with conventional foam plugs.

112:11 ‐ 113:25 Battler, Leanne 2020‐09‐10

112:11 Q. If you come back from that Re: [112:11 to 113:25] 

112:12 call‐out back to the document, and go to the Pltf Obj Foundation; 701/702;

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 34 of 305
112:13 next page of this, do you see the part that 802; speculation; 402/403;

112:14 says ‐‐ the graphic that says: Detection of 611; conjecture

112:15 sound by?112:16 Can you describe what that

112:17 graphic shows and how it relates to situational

112:18 awareness?112:19 A. Yes. So we use this in a lot of

112:20 our hearing health education briefings. And

112:21 basically it's saying that with an unoccluded

112:22 ear, so nothing in your ear canal at all, if

112:23 you have H1 hearing, then you have the ability

112:24 to hear a rifle bolt closing, so that

112:25 (indicating) sound, at a distance of a thousand

113:01 meters; versus if you are wearing the foam

113:02 earplug, you don't hear that same rifle bolt

113:03 closing until the person making noise is sixty

113:04 meters from your position; in other words,

113:05 you're a dead man.113:06 Along comes the Combat Arms

113:07 earplug, not quite as good as an unoccluded

113:08 ear, but you can hear that rifle bolt closing

113:09 within five hundred meters and would still give

113:10 you some time to react and survive.

113:11 Q. So was that an advantage of the

113:12 Combat Arms earplug based on your personal

113:13 experience and communications with soldiers?

113:14 A. Yes.113:15 Q. Okay. If you go to user tips in

113:16 this document, where it says, in the second

113:17 bullet point: Like any earplug, it is

113:18 essential that the Combat Arms be properly

113:19 inserted.113:20 Do you agree with that?

113:21 A. Yes.113:22 Q. And that's just as true for the

113:23 Combat Arms, as it is for other earplugs;

113:24 right?113:25 A. Yes.

114:04 ‐ 114:10 Battler, Leanne 2020‐09‐10

114:04 Q. Okay. Let's go to Tab 13. And Re: [114:04 to 114:10] 

114:05 let's go to Bates number 051171. Pltf Obj Foundation; 802;

114:06 If you look down at the bottom, 402/403; 602/701/702

114:07 that's an email from Richard Cleveland to you

114:08 and Dr. Ohlin, dated July 8 regarding email

114:09 from Iraq via Diggs; right?

114:10 A. Yes.

116:24 ‐ 117:04 Battler, Leanne 2020‐09‐10 

116:24 Q. Based on ‐‐ Based on your Re: [116:24 to 117:04]

116:25 experience, do you believe that the Pltf Obj 701/702; 403

117:01 overwhelming feedback on the Combat Arms117:02 Version 2 has been positive?

117:03 A. In my experience, yes, very

117:04 positive.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 35 of 305
117:10 ‐ 117:11 Battler, Leanne 2020‐09‐10

117:10 MR. NOMELLINI: We're going back Re: [117:10 to 117:11] 

117:11 to Exhibit 2, which is also Tab 5. Pltf Obj Foundation; 802; 403;

702/701

117:14 ‐ 120:05 Battler, Leanne 2020‐09‐10

117:14 Q. If you could go to the page DoD Re: [117:14 to 120:05]

117:15 164.

Pltf Obj Foundation; 802;

117:16 A. (Witness complies.) 602/701/702; speculation;

117:17 Q. Go to the bottom of that page, 402/403; 404; 611

117:18 there is an email from Kathy Gates to various

117:19 individuals, including the witness, dated

117:20 October 6, 2005. Can you describe what this ‐‐

117:21 what this email is, Lieutenant Colonel Battler?

117:22 A. Colonel Gates ‐‐ I don't remember

117:23 this exact ‐‐ but there were instances where

117:24 she would send a request for information, you

117:25 know, en masse, to several of us, asking for

118:01 assistance.118:02 Q. Okay. So Colonel Gates is asking

118:03 you and others for feedback on the Combat Arms

118:04 Version 2 in 2005; correct?

118:05 A. Yes.

118:06 Q. Okay. Then if you look at the

118:07 prior page, DoD 163, which is part of Exhibit

118:08 2, you provided Colonel Gates with two success

118:09 stories in relation to the Combat Arms; right?

118:10 A. Yes.

118:11 Q. Okay. Looking at Exhibit 2, can

118:12 you describe the first success story with

118:13 respect to the Combat Arms that you shared with

118:14 Colonel Gates?

118:15 A. Yes. You want me to read it?

118:16 Q. Sure. Why don't you ‐‐ Why don't

118:17 you read ‐‐ read the first ‐‐ the first item.

118:18 If you could please read the first success

118:19 story that you shared with Colonel Gates

118:20 regarding the Combat Arms on October 6, 2005.

118:21 A. All right. Ma'am, two success

118:22 stories I'd like to share. First, several

118:23 months ago, I saw an O6, so a full colonel,

118:24 brigade commander, for his postdeployment OIF,

118:25 Operation Iraqi Freedom, audiometric eval; so

119:01 his postdeployment DOEHRS test. He told me

119:02 that he had not heard of the Combat Arms

119:03 earplugs until he was in theater. He did not

119:04 know what they looked like, but was determined

119:05 to get them for his entire brigade.

119:06 He inquired with some local Iraqi

119:07 supply company and ended up purchasing what he

119:08 thought were Combat Arms earplugs, but in

119:09 reality they were only foam plugs. Finally, he

119:10 made some calls back to Fort Hood and was able

119:11 to get his staff to order them here ‐‐ so I was

119:12 at Fort Hood here ‐‐ and then shipped them out

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 36 of 305
119:13 to the brigade. They were finally received by

119:14 the soldiers in Iraq over four months after

119:15 they initially deployed.

119:16 The colonel told me that he was

119:17 sitting in the back of his HMMWV, so

119:18 high‐mobility multi‐ ‐‐ high‐purpose

119:19 multiwheeled vehicle, HMMWV with his new Combat

119:20 Arms earplugs in his ears, for the first time,

119:21 when he experienced his first IED blast, so

119:22 improvised explosive device, at close range.

119:23 He said that his soldiers in the

119:24 HMMWV had just been grumbling to him about his

119:25 insistence that they all wore their Combat Arms

120:01 earplugs, but that they were all very glad they

120:02 had their Combat Arms earplugs after the blast,

120:03 and that they wore them every day afterwards.120:04 By the way, the colonel had no

120:05 hearing loss and no tinnitus upon redeployment.

120:08 ‐ 124:10 Battler, Leanne 2020‐09‐10

120:08 Q. Why was that a success story Re: [120:08 to 124:10] 

120:09 relating to the Combat Arms, in your view? Pltf Obj 701/702; 402/403;

120:10 A. Oh, because he had no hearing 802; conjecture; speculation;

120:11 loss and tinnitus. We had prevented hearing 611 leading, vague; 602; 404

120:12 loss, that's our mission.120:13 Q. When you say it had prevented

120:14 hearing loss, you're referring to the Combat

120:15 Arms earplugs that had prevented hearing loss?

120:16 A. Yes.120:17 Q. And you also had a second success

120:18 story to share with Colonel Gates; correct?

120:19 A. Yes.

120:20 Q. And that related to information

120:21 that you obtained from a postdeployment health

120:22 assessment survey; right?

120:23 A. Yes.

120:24 Q. And you asked several soldiers

120:25 questions regarding the Combat Arms plug at the

121:01 request of Aearo?

121:02 A. Yes.

121:03 Q. Okay. And can you read the last

121:04 ‐‐ the last sentence in paragraph two,

121:05 beginning with: I wish.

121:06 A. I wish all soldiers believed in

121:07 the merit of the Combat Arms earplug like this

121:08 specialist .50 cal gunner does. I especially

121:09 liked his comment that he would not change

121:10 anything about the Combat Arms earplug or the

121:11 case, because they worked for two hundred and

121:12 five convoys.121:13 Q. And why did you like the comment

121:14 that the Combat Arms had worked for two hundred

121:15 and five convoys?121:16 A. Because he felt confident enough

121:17 to wear it. He ‐‐ it ‐‐ His comment indicated

121:18 to me that he knew he needed some protection,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 37 of 305
121:19 and also felt confident that he was not going

121:20 to have overattenuation.

121:21 Q. Okay. And a .50 caliber gunner,

121:22 based on your experience, that's someone who,

121:23 if they do not wear appropriate hearing

121:24 protection, can experience hearing loss;

121:25 correct?122:01 A. Yes.

122:02 Q. And so question number four, you

122:03 asked him when this .50 caliber gunner wore the

122:04 CAE, and what did he tell you?

122:05 A. The right part of that is cut

122:06 off.122:07 There we go. Thank you. He

122:08 said: I wore the yellow side in my ear the

122:09 whole time we were on the convoy until we were

122:10 in the gate. And if there were mortars coming

122:11 down outside, sometimes I would wear the yellow

122:12 end in one ear and the green end in the other

122:13 ear, like when I had the yellow in with

122:14 earpiece and the short wave radio for talking

122:15 from truck to truck and also inside the truck,

122:16 and the green end in the opposite ear.

122:17 Q. Okay. And then in the other

122:18 question, you asked him to describe the

122:19 circumstances when he encountered loud noises

122:20 using the ‐‐ while using the CAEv2, and what

122:21 did he say?

122:22 Item number one. Describe the

122:23 circumstances.122:24 A. Oh, so he said: Mostly in

122:25 convoys. And then in two or three mortars

123:01 going off near the sleeping quarters. So he

123:02 must have been wearing them when he was in his

123:03 quarters.123:04 Q. Question number two, you asked

123:05 the soldier did he believe his hearing had been

123:06 affected by the loud noises that he had heard,

123:07 and what did he say?

123:08 A. He said ‐‐ He said no. He wore

123:09 his earplugs all the time and if he had not

123:10 worn them, he believed that he would have ‐‐ he

123:11 would have incurred hearing loss.

123:12 Q. So did you understand that to

123:13 mean that the Combat Arms Version 2 had

123:14 protected the hearing of this .50 caliber

123:15 gunner?123:16 A. Yes.

123:17 Q. And were you proud of that and is

123:18 that part of the reason why you shared that

123:19 information with your superior?

123:20 A. Yes.123:21 Q. If you look at question number

123:22 nine, you asked a soldier whose hearing was

123:23 protected by the Combat Arms if there's

123:24 anything that he indicated did not work or how

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 38 of 305
123:25 it might be improved, and what was his

124:01 response?124:02 A. He said he would not change

124:03 anything at all.

124:04 Q. And what did that indicate to you

124:05 about the Combat Arms?124:06 A. It indicated to me that ‐‐ that

124:07 they were a great fit and a great product.

124:08 Q. And is it your view today, based

124:09 on your personal experience, that the Combat

124:10 Arms is a great product?

124:13 ‐ 127:08 Battler, Leanne 2020‐09‐10

124:13 Q. Based on your personal experience Re: [124:13 to 127:08]

124:14 and communication with soldiers? Pltf Obj 701/702; 802;

124:15 A. Based on my experience, yes, I 402/403; 404; conjecture;

124:16 think it's a great product. 701/702; 611 leading;

124:17 Q. And why do you think the Combat speculation; 602; improper

124:18 Arms is a great product, based on your bolstering

124:19 experience?124:20 A. I mean, on the firing ranges, for

124:21 sure, but especially downrange. You know, I

124:22 wore them and experienced that I knew I felt

124:23 protected, but not overly protected. I still

124:24 had situational awareness.124:25 Q. And why is it important that with

125:01 the Combat Arms you felt protected but not

125:02 overall protected?125:03 A. So if there was weapons fire or

125:04 blasts, noise ‐‐ hazardous noise exposure, then

125:05 I knew that I would not have permanent hearing

125:06 loss.125:07 Q. And based on your personal

125:08 experience, did the Combat Arms, in fact,

125:09 protect your hearing?

125:10 A. I believe so.

125:11 Q. And you do not have permanent

125:12 hearing loss today; correct?

125:13 A. I have excellent hearing.

125:14 Q. And you do not have tinnitus

125:15 today; correct?

125:16 A. Not today.

125:17 Q. And how many times have you used

125:18 the Combat Arms?

125:19 A. Every year for seventeen years.

125:20 Q. Okay. So you've used the Combat

125:21 Arms from approximately 2003 to the present;125:22 correct?125:23 A. Yes.125:24 Q. And they've protected your

125:25 hearing throughout that time?126:01 A. Yes.

126:02 Q. Let's go to DoD 190, in the same

126:03 document. DoD 190, at the top, is a email from

126:04 Kathy Gates to Leanne Cleveland and others,

126:05 dated March 7, 2006, attaching recent hearing

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 39 of 305
126:06 conservation articles.

126:07 And I want to direct your

126:08 attention to the next page, which is DoD 191,

126:09 which is part of the article that was

126:10 forwarded, and in particular, handing ‐‐ going

126:11 down to halfway down the page where it starts

126:12 with the words: Handing them out with written126:13 instructions.126:14 Okay. So in this article you

126:15 were forwarded it says: Handing them out with

126:16 written instructions isn't effective, said

126:17 Douglas Ohlin, an audiologist who heads the

126:18 Hearing Conservation Program. Most people have

126:19 to be shown who wear earplugs.

126:20 Do you agree that handing out

126:21 earplugs, including the Combat Arms, with only

126:22 written instructions is not effective and that

126:23 people have to be shown how to wear earplugs?

126:24 A. Yes, I agree.

126:25 Q. And why is it important, in your

127:01 view, then, based on your experience, not to

127:02 rely on written instructions in providing

127:03 soldiers with earplugs?

127:04 A. I mean, look at soldiers.

127:05 They're not people who sit behind a desk.

127:06 They're ‐‐ We're all attention deficit

127:07 disorder; we need that hands‐on training.

127:08 We're not book people.

127:19 ‐ 129:01 Battler, Leanne 2020‐09‐10

127:19 Q. Okay. And so you believe that Re: [127:19 to 129:01]

127:20 it's important to sort of work hands‐on with an Pltf Obj Foundation; 802;

127:21 individual soldier, or military personnel, to 402/403; 701/702; speculation;

127:22 show them how to use the plug and to make sure conjecture

127:23 that it fits correctly, as opposed to using a

127:24 written instruction; correct?

127:25 A. Exactly.

128:01 Q. Okay. Let's go to DoD 195 from

128:02 that document. This is an email ‐‐ DoD 195,

128:03 which is part of Exhibit 2, is an email from

128:04 Kathy Gates to Leanne Cleveland and others

128:05 dated June 13, 2006, forwarding data from Fort

128:06 Polk. Do you see that?128:07 A. Yes, sir.

128:08 Q. And if you go below, there is an

128:09 email from Kathy Gates to Christian Reid that

128:10 Kathy Gates is in turn forwarding to you which

128:11 reports data from the Louisiana National Guard

128:12 regarding the Combat Arms earplug.

128:13 Do you see that?

128:14 A. Yes.

128:15 Q. And it's reported that 86 percent

128:16 of soldiers reported that they found the Combat

128:17 Arms earplug beneficial in Combat Arms

128:18 operation. Was that level of satisfaction

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 40 of 305
128:19 consistent with your experience?

128:20 A. Yes.

128:21 Q. And 70 percent of soldiers

128:22 reported they felt the Combat Arms earplugs

128:23 protects their ears as well as improves

128:24 communication ability in noise. Was that

128:25 consistent with your experience?

129:01 A. Yes.

137:17 ‐ 137:24 Battler, Leanne 2020‐09‐10

137:17 Q. And did you receive feedback from Re: [137:17 to 137:24] 

137:18 some soldiers that other earplugs were more Pltf Obj 802; 402/403; 602/611

137:19 comfortable than the CAEv2? calls for speculation

137:20 A. Yes.

137:21 Q. Okay. And that issue with

137:22 respect to comfort, in your experience, that

137:23 did not have anything to do with the CAEv2's

137:24 ability to protect users from noise; correct?

138:03 ‐ 138:07 Battler, Leanne 2020‐09‐10

138:03 Q. Based on your personal experience Re: [138:03 to 138:07] 

138:04 and what they reported to you. Pltf Obj 802; 402/403; 701/702

138:05 A. If it's not comfortable, then

138:06 they're not going to wear it. But that doesn't

138:07 mean it didn't fit.

138:14 ‐ 138:16 Battler, Leanne 2020‐09‐10

138:14 Q. And that's also based on your Re: [138:14 to 138:16] 

138:15 personal experience and your communications Pltf Obj 611 asked/answered;

138:16 with soldiers; correct? 802; 402/403; 701/702

138:19 ‐ 139:03 Battler, Leanne 2020‐09‐10

138:19 A. You know, the Army combat helmet Re: [138:19 to 139:03] 

138:20 was ‐‐ gave me an excruciating headache, but it Pltf Obj 402/403; conjecture;

138:21 protected me. 701/702; 611 leading;

138:22 Q. Okay. And you say the same is speculation

138:23 true with respect to the Combat Arms, it

138:24 protected you; correct?

138:25 A. If it was properly fitted, and if

139:01 it was the right size, in my experience, yes.

139:02 Q. And it has to be properly fitted

139:03 by medically trained personnel; correct?

139:06 ‐ 139:15 Battler, Leanne 2020‐09‐10

139:06 A. It needed to be fitted by the Re: [139:06 to 139:15]

139:07 soldier who was using it, who received adequate Pltf Obj Conjecture; 701/702;

139:08 training from medically trained personnel, yes. 402/403; 611 leading,

139:09 Q. The soldier needs to receive asked/anwered

139:10 adequate training from medically trained

139:11 personnel; correct?139:12 A. Correct.

139:13 Q. It's not sufficient to hand out

139:14 the earplugs without training, like was done in

139:15 the Rapid Fielding Initiative; correct?

139:18 ‐ 139:22 Battler, Leanne 2020‐09‐10

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 41 of 305
139:18 Q. Based on your experience and Re: [139:18 to 139:22]

139:19 interaction with soldiers. Pltf Obj 402/403; incomplete 

139:20 A. When the Army issued me my M9, designation; nonresponsive

139:21 they didn't give me a pamphlet on how to answer; 701/702

139:22 operate it.

140:09 ‐ 141:16 Battler, Leanne 2020‐09‐10

140:09 Q. Okay. Let's go to Tab 15. I'm Re: [140:09 to 141:16] 

140:10 going to mark this as Exhibit 13. You then ‐‐ Pltf Obj 802; 402/403;

140:11 you provided Aearo and Brian Myers with speculation; 602/701/702

140:12 feedback that you obtained from soldiers;

140:13 correct?140:14 A. Yes.140:15 Q. And who asked you to obtain

140:16 feedback from soldiers on the Combat Arms?

140:17 A. This was a while ago. I remember

140:18 the deputy ‐‐ one of the deputy commanders at

140:19 Darnell Hospital said: Hey, we're doing this

140:20 initial postdeployment health reassessment

140:21 survey, we're making history, this is a big

140:22 deal, I want you to participate.

140:23 So I ‐‐ I don't remember if I

140:24 reached out to Doug or someone else or if I

140:25 reached out to Colonel Tuten, reached out to

141:01 Doug. I'm not sure exactly how everything

141:02 transpired, but ‐‐ but I wanted to do a good

141:03 job and get data, and so I ‐‐ Right. There was

141:04 communication where I said help me ask the

141:05 right questions.141:06 Q. Okay. If you look down ‐‐ If you

141:07 look down the chain of Exhibit 13, there is an

141:08 email from Brian Myers, to you, dated August

141:09 17, 2005, where he lays out questions for you

141:10 to ask; right?

141:11 A. Yes.141:12 Q. And from your perspective as an

141:13 audiologist, was that a good thing for an

141:14 earplug manufacturer to do, to solicit feedback141:15 from the soldiers and their personal

141:16 experiences with the earplugs?

141:19 ‐ 143:11 Battler, Leanne 2020‐09‐10

141:19 Q. If you could just limit it to Re: [141:19 to 143:11]

141:20 your personal experience. Pltf Obj 802; conjecture;

141:21 A. Yes. Any ‐‐ Anyone who is asking 701/702; 402/403; 611141:22 for how can they improve a product is ‐‐ Sure. vague/confusing, compound and

141:23 All data is good data. leading questions; 602

141:24 Q. Okay. And one of the speculation

141:25 questions ‐‐ If you look at question number

142:01 one, the soldier is asked to describe the

142:02 circumstances when they encounter loud noises;

142:03 right?142:04 A. Yes.142:05 Q. And then the soldier is asked

142:06 whether their hearing has been affected by the

142:07 loud noises; right?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 42 of 305
142:08 A. Yes.

142:09 Q. And in question number four, the

142:10 soldier is asked about when they wore the CAE;

142:11 right?142:12 A. Yes.

142:13 Q. And those are all good questions

142:14 for getting feedback on the CAE?

142:15 A. I believe so, yes.

142:16 Q. Okay. And you attached, to your

142:17 email back to Aearo, some of the feedback you

142:18 had gotten from soldiers; right?

142:19 A. Yes.

142:20 Q. Did Aearo or 3M restrict you in

142:21 any way, in terms of the questions that you

142:22 could ask to the soldiers? Were you free to

142:23 communicate with them as you wished?

142:24 A. Yes.

142:25 Q. Okay. So you never ‐‐ They never

143:01 instructed you: These types of questions are

143:02 off limits; right?

143:03 A. Oh, no. Never.143:04 Q. And if we scroll down to 3M MDL

143:05 000285548, that's the ‐‐ that's the .50 caliber

143:06 gunner we talked about before; right?

143:07 A. Yes.

143:08 Q. And his hearing was protected by

143:09 the Combat Arms earplug, based on your survey;

143:10 right?143:11 A. I believe so, yes.

143:18 ‐ 144:10 Battler, Leanne 2020‐09‐10

143:18 Q. Question number four that you Re: [143:18 to 144:10] 

143:19 asked, what was your question and what was Pltf Obj 802; conjecture;

143:20 their response? 701/702; 402/403; 611

143:21 A. Okay. So I asked him: When did vague/confusing, compound and

143:22 you wear the Combat Arms earplug? And he said leading questions; 602

143:23 he wore them for approximately one week, but speculation

143:24 they were too irritating, too deep inside the

143:25 ear canal. And he reports that he used the

144:01 orange triple‐flange corded version that his

144:02 father gave to him rather than the Combat Arms

144:03 earplug that was issued to him.

144:04 Q. Okay. And if you look at the

144:05 next page, 285551, in response to question

144:06 number nine, what did the second soldier who

144:07 you surveyed indicate about the effectiveness

144:08 of the Combat Arms Earplug Version 2?

144:09 A. He said that when he wore them,

144:10 they were effective.

145:04 ‐ 146:16 Battler, Leanne 2020‐09‐10

145:04 Q. And has that also been a topic of Re: [145:04 to 146:16] 

145:05 discussion between you and other audiologists, Pltf Obj 802; 402/403; 404;

145:06 that there sometimes can be difficulties in 406; 611; 602/701/702;

145:07 getting soldiers to wear earplugs, particularly conjecture; speculation

145:08 in a combat environment?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 43 of 305
145:09 A. Yes.

145:10 Q. Okay. And what's been the

145:11 substance of those discussions you've had with

145:12 audiologists about the difficulty of getting

145:13 soldiers to wear earplugs in the combat ‐‐ in a

145:14 combat environment?

145:15 A. Probably the two most common

145:16 themes are for people who already have some

145:17 level of hearing loss, even the ‐‐ I mean, the

145:18 Combat Arms earplug ‐‐ well, all earplugs, are

145:19 going to provide some attenuation. So when you

145:20 already have hearing loss, that extra

145:21 attenuation really makes communication

145:22 difficult. So that population is ‐‐ is really

145:23 at a disadvantage, because then they don't wear

145:24 their hearing protection and then they incur

145:25 even more hearing loss.

146:01 And then I think the second one,

146:02 it's less now. But, again, at that time there

146:03 was a school of thought where it was almost

146:04 like hearing loss was your badge of manhood and

146:05 it was ‐‐ it was ‐‐ they were proud of hearing

146:06 loss. Yeah. You know, guns, mortars, I've146:07 been around all this noise, and I've got

146:08 hearing loss; I'm a man. That mindset is a lot

146:09 better now than it used to be. But I've heard

146:10 of senior noncommissioned officers encouraging

146:11 their younger troops to not use hearing

146:12 protection, to toughen their ears and get used

146:13 to the noise.

146:14 And in some cases, even going out

146:15 into a fire fight hoping to get a perforated

146:16 eardrum so that would give you a Purple Heart.

147:06 ‐ 148:01 Battler, Leanne 2020‐09‐10

147:06 Q. Yeah. So the first two ‐‐ The Re: [147:06 to 148:01] 

147:07 first two respondents of the four you talked Pltf Obj 802; 402/403; 404;

147:08 to, indicating that the ‐‐ indicated that the 602/701/702

147:09 Combat Arms were effective in protecting their

147:10 ear; right?147:11 A. The ‐‐ Yes. Correct.147:12 Q. Okay. And then we looked at ‐‐

147:13 Let's look at the next respondent, MDL 285552.

147:14 And that respondent indicated, in response to

147:15 question number five, that the ‐‐ he used ‐‐ he

147:16 or she used the Combat Arms for one week and

147:17 then lost them; correct?

147:18 A. Yes.147:19 Q. And the Combat Arms can't provide

147:20 hearing protection if it's lost; fair to say?

147:21 A. Correct.147:22 Q. And the last soldier you talked

147:23 to, 3M MDL 285554, indicated in response to

147:24 question number four, that he rarely used the

147:25 Combat Arms earplug; right?

148:01 A. Yes. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 44 of 305
148:12 ‐ 150:17 Battler, Leanne 2020‐09‐10

148:12 Q. Okay. But based on ‐‐ Based on Re: [148:12 to 150:17]

148:13 all your ‐‐ all your communications with any Pltf Obj 802; 402/403;

148:14 service member, you've already indicated that conjecture; 701/702;

148:15 no service member indicated to you that the Foundation; speculation

148:16 Combat Arms earplug was ineffective in terms of

148:17 protecting hearing; right?

148:18 A. Correct.148:19 Q. And these are among the service

148:20 members that you talked to; right?

148:21 A. Yes.148:22 Q. Now, they did have other148:23 criticisms of the Combat Arms, like that they

148:24 didn't come in the right size for them; right?

148:25 A. Right.

149:01 Q. And that was addressed in

149:02 subsequent versions of the Combat Arms earplug,

149:03 the version 3 and version 4; correct?

149:04 A. Yes.149:05 Q. And that's partly based on the

149:06 feedback that you received in surveys from

149:07 soldiers; correct?

149:08 A. I like to think that my data was

149:09 contributory, yes.149:10 Q. All right. And if you go to

149:11 question two, do you believe that your hearing

149:12 has been affected by the loud noises you heard?

149:13 Why or why not? The service member responded:

149:14 Yes. I didn't wear the earplugs all the time

149:15 because they were too big and they hurt and

149:16 they didn't work very well.

149:17 Do you see that?149:18 A. Yes.149:19 Q. Okay. So first of all, he's

149:20 indicating that they were not the right ‐‐

149:21 Combat Arms Version 2 was not the right size

149:22 for him; right?

149:23 A. Yes.

149:24 Q. And if the Combat Arms is not the

149:25 right size for somebody, they shouldn't ‐‐ they

150:01 shouldn't even be using that earplug; right?

150:02 A. Correct.

150:03 Q. Okay. And where he says they

150:04 didn't work very well, do you know whether

150:05 that's indicating anything about the ability of

150:06 the earplug to attenuate noise, as opposed to

150:07 the ability to, you know, hear conversation

150:08 with the yellow end? Do you know specifically

150:09 what that's referring to?

150:10 A. Well, they could not work well if

150:11 ‐‐ if they weren't worn and if they were the

150:12 wrong size.

150:13 Q. Okay. And that's true of all

150:14 earplugs, not just the Combat Arms Version 2,

150:15 they could not work well if they weren't worn

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 45 of 305
150:16 and if they were the wrong size; correct?

150:17 A. Yes. That's correct.

151:13 ‐ 152:17 Battler, Leanne 2020‐09‐10

151:13 We talked about the process of Re: [151:13 to 152:17] 

151:14 instruction on the Combat Arms earplug by Pltf Obj 402/403

151:15 medically trained personnel. Do you recall

151:16 that?151:17 A. Yes, sir.

151:18 Q. And am I correct that you did not

151:19 rely on Aearo or 3M to come by the

151:20 installations to provide fitting on the Combat

151:21 Arms Earplug Version 2 to soldiers?

151:22 A. Correct.

151:23 Q. And am I correct that you did not

151:24 invite Aearo or 3M to come by the installations

151:25 to provide fitting of the Combat Arms Version 2

152:01 to soldiers?

152:02 A. Correct.

152:03 Q. Am I also correct that you did

152:04 not rely on Aearo or 3M to provide any oral

152:05 instructions to soldiers relating to the Combat

152:06 Arms version?

152:07 A. Correct.

152:08 Q. And am I also correct that you

152:09 did not rely on Aearo or 3M to provide any

152:10 written instructions to soldiers on the Combat

152:11 Arms version?152:12 A. Correct.

152:13 Q. And, in fact, based on your

152:14 investigation, you never provided any ‐‐

152:15 anything in writing from Aearo or 3M on the

152:16 Combat Arms Version 2 to soldiers; correct?

152:17 A. The Version 2, correct.

153:10 ‐ 153:19 Battler, Leanne 2020‐09‐10

153:10 Q. Okay. And when you say earlier Re: [153:10 to 153:19] 

153:11 in your career there were not enough Pltf Obj 402/403; conjecture;

153:12 audiologists to accomplish the mission 701/702; 611 leading;

153:13 successfully of hearing loss prevention, what vague/confusing; nonresponsive

153:14 years are you referring to?

153:15 A. During GWOT, during Operation

153:16 Iraqi Freedom, Operation Enduring Freedom,

153:17 Afghanistan. It's questionable if ‐‐ We're

153:18 doing better; I'm not sure if we're there yet

153:19 but, yeah.

154:04 ‐ 155:03 Battler, Leanne 2020‐09‐10

154:04 Q. What years are you referring to Re: [154:04 to 155:03] 

154:05 there during GWOT, Operation Iraqi Freedom, and Pltf Obj 402/403; 602/701/702;

154:06 Operation Enduring Freedom, approximately? 611 leading questions, vague,

154:07 A. 2004 to 2011, '12. asked/answered; 802;

154:08 Q. And you testified that during foundation; speculation

154:09 those years, 2004 to 2011 or '12, there were

154:10 not enough audiologists to accomplish the

154:11 mission successfully of hearing loss

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 46 of 305
154:12 prevention. Could you explain that testimony?

154:13 A. I believe there were not enough

154:14 Army uniformed 72 Charlie audiologists aligned

154:15 under preventive medicine, which would allow us

154:16 that 50 percent of our time spent outside of

154:17 the clinic, in the motor pools, on the ranges,

154:18 doing the education and the on‐the‐spot earplug

154:19 fitting and fit checks.

154:20 Q. And you, as an individual,

154:21 Lieutenant Colonel Battler, worked extremely

154:22 hard, but you can only do so much; would you

154:23 agree with that?

154:24 A. Yes.154:25 Q. And how does there not being

155:01 enough Army uniformed 72 Charlie audiologists

155:02 aligned under preventative medicine, how does

155:03 that impede hearing protection for soldiers?

155:06 ‐ 155:10 Battler, Leanne 2020‐09‐10

155:06 A. So, again, being aligned under Re: [155:06 to 155:10] 

155:07 Department of Surgery and with productivity Pltf Obj Conjecture;

155:08 being measured in terms of RVU generation, it's speculation; 601/701/702;

155:09 ‐‐ it's very difficult to get outside of the 402/403

155:10 clinic and do the hands‐on work.

156:06 ‐ 157:12 Battler, Leanne 2020‐09‐10

156:06 Q. Okay. And not having enough Re: [156:06 to 157:12]

156:07 audiologists from 2004 to 2012, how does that Pltf Obj 611 leading, vague,

156:08 impact the hearing protection mission, based on mischaracterizes evidence;

156:09 your personal experience with the CAEv2 and 602/701/702; conjecture;

156:10 other plugs? 404/406; speculation; 402/403156:11 A. Right. So not only were we ‐‐

156:12 does that impede our ability to get out there

156:13 in the noise to do the proper instruction, but

156:14 generally, the Department of Surgery budget

156:15 doesn't include funding for hearing protection.

156:16 That falls under the prevention mission, which

156:17 is sometimes ‐‐ sometimes under preventive

156:18 medicine, sometimes not. But definitely not ‐‐

156:19 Department of Surgery is not concerned with

156:20 providing preformed hearing protection for

156:21 soldiers.156:22 Q. And proper instruction is key for

156:23 preformed hearing protectors like the Combat

156:24 Arms Version 2 to work effectively in your

156:25 experience; correct?157:01 A. In my experience, yes, that's

157:02 correct.157:03 Q. And final question, before we

157:04 take a break, why, based on your experience, is

157:05 that true for preformed hearing protectors like

157:06 the CAEv2?

157:07 A. Because I worked under both

157:08 clinics: I've worked under Department of

157:09 Surgery and I've worked under preventive

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 47 of 305
157:10 medicine clinic. And the prevention mission is

157:11 ‐‐ our productivity is not based on how many

157:12 patients we see.

157:25 ‐ 158:06 Battler, Leanne 2020‐09‐10

157:25 Q. Okay. Lieutenant Colonel Re: [157:25 to 158:06]

158:01 Battler, my name is Doug Monsour,

I'm one of Def Obj 3M MIL No. 10, 

158:02 the members of the plaintiff

steering committee to soldiers that have file

158:03 representing the soldiers that have

filed lawsuits

158:04 lawsuits against 3M.158:05 Do you understand who I am?

158:06 A. Yes.

158:11 ‐ 158:21 Battler, Leanne 2020‐09‐10

158:11 Q. Okay. The ‐‐ Is a ‐‐ The Combat158:12 Arms Version 2 is a triple‐flanged

earplug;

158:13 correct?158:14 A. Yes.158:15 Q. And do you insert it the same

way

158:16 that you insert other triple‐flanged

earplugs,

158:17 you reach over, you pull behind the

ear, and

158:18 you stick it in the ear; is that right?

158:19 A. Yes.158:20 Q. Same way; right?

158:21 A. Yes.

158:22 ‐ 158:24 Battler, Leanne 2020‐09‐10

158:22 Q. And have you ever been assigned

158:23 to any of the basic training bases?158:24 A. No. Negative.

158:25 ‐ 159:03 Battler, Leanne 2020‐09‐10

158:25 Q. Okay. Are you aware that during

159:01 basic training, the soldiers are

taught how to

159:02 insert triple‐flange earplugs?

159:03 A. Yes.

160:09 ‐ 160:12 Battler, Leanne 2020‐09‐10

160:09 Q. Okay. And is it a fair statement Re: [160:09 to 160:18] 

160:10 to say that once you can insert one Def Obj foundation (602

160:11 triple‐flange plug, you can insert any vague (611, 403); 701

160:12 triple‐flange plug?

160:14 ‐ 160:14 Battler, Leanne 2020‐09‐10

160:14 Q. It's the same process, isn't it? Re: [160:09 to 160:18] 

Def Obj foundation (602

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 48 of 305
vague (611, 403); 701

160:17 ‐ 160:18 Battler, Leanne 2020‐09‐10

160:17 A. I think it's the same process, Re: [160:09 to 160:18] 

160:18 yes. Def Obj foundation (602

vague (611, 403); 701

160:19 ‐ 160:22 Battler, Leanne 2020‐09‐10

160:19 Q. Okay. So if somebody has been

160:20 taught how to insert a triple‐flange plug, they

160:21 don't necessarily have to be taught again, do

160:22 they?

161:01 ‐ 161:08 Battler, Leanne 2020‐09‐10

161:01 A. I think a refresher is always ‐‐ Re: [161:01 to 161:04] 

161:02 and that's why the regulation says we're Pltf Obj 01. 402

161:03 supposed to check it every year, at least

161:04 annually, to make sure they know how to do it. Re: [161:05 to 161:18] 

161:05 Q. I understand. But the troops, if Pltf Obj 11. Foundation

161:06 they're going through basic training, and have

161:07 received that type of training, then they will

161:08 know how to insert a plug; true?

161:12 ‐ 161:18 Battler, Leanne 2020‐09‐10

161:12 A. I wouldn't say necessarily. Re: [161:05 to 161:18] 

161:13 Depends who taught them, how they taught them. Pltf Obj 11. Foundation

161:14 I'm ‐‐161:15 Q. Assuming ‐‐

161:16 A. I can speak for my ‐‐ I can speak

161:17 for my clinics and my technicians, I can't

161:18 speak for others.

162:01 ‐ 162:05 Battler, Leanne 2020‐09‐10

162:01 Q. Thousands. One of the things

you

162:02 said earlier is you've never rolled

back the

162:03 opposing flanges to insert a Combat

Arms; is

162:04 that a true statement?162:05 A. Correct.

162:06 ‐ 162:18 Battler, Leanne 2020‐09‐10

162:06 Q. You also said that you have been

162:07 using Combat Arms plugs from 2003 to the

162:08 present, for your own personal use; is that

162:09 correct?162:10 A. Correct. Yes.

162:11 Q. Which versions have you used over

162:12 the years?

162:13 A. All of them.

162:14 Q. Okay. And when did you start

162:15 using the Version 2 and when did you stop using

162:16 the Version 2?

162:17 A. I started using the Version 2

162:18 when I was a student at Aberdeen.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 49 of 305
163:25 ‐ 164:06 Battler, Leanne 2020‐09‐10

163:25 Q. Okay. As far as the number of Re: [163:25 to 164:13] 

164:01 audiologists that the Army has had over the Pltf Obj 17. Objection

164:02 years, wasn't going to a one‐sized Combat Arms Nonresponsive

164:03 plug a way to address the fact that the ‐‐ not

164:04 everybody could be hand‐fitted by an

164:05 audiologist? Wasn't that one of the reasons

164:06 why the Army went to a one‐size plug?

164:11 ‐ 164:13 Battler, Leanne 2020‐09‐10

164:11 A. I never thought it was a one‐size Re: [163:25 to 164:13] 

164:12 plug. I always thought it was a size medium Pltf Obj 17. Objection

164:13 plug. Nonresponsive

164:14 ‐ 164:16 Battler, Leanne 2020‐09‐10

164:14 Q. Okay. Were you aware that the

164:15 Combat Arms earplug was supposed to be a

164:16 one‐size‐fits‐most earplug?

164:19 ‐ 164:21 Battler, Leanne 2020‐09‐10

164:19 Q. One size fits most. I guess

164:20 medium would fit most, yes.

164:21 A. I mean, that's fair.

164:22 ‐ 165:12 Battler, Leanne 2020‐09‐10

164:22 Q. Are you aware that the Combat Re: [164:22 to 165:12] 

164:23 Arms earplug was supposed to be a Def Obj foundation (602

164:24 one‐size‐fits‐most plug?

164:25 A. No.165:01 Q. Okay.165:02 A. I understood it was a size medium

165:03 earplug, and most people are size

medium. So,

165:04 yes, I could infer one from the other,

but it

165:05 was never presented as a one‐size‐

fits‐most.

165:06 Q. Okay. If you can pull up the

165:07 wallet card, whoever has got ‐‐ I

can't

165:08 remember which exhibit it was, the

wallet that

165:09 Mr. Nomellini used earlier.

165:10 MR. MONSOUR: Do you know

which

165:11 one that is, Terry.165:12 Here it is. Thank you, Corey.

165:13 ‐ 166:03 Battler, Leanne 2020‐09‐10

165:13 Q. If you will look under ordering,

165:14 it mentions the double‐ended earplug, which, as

165:15 you know, that has to be the Combat Arms

165:16 Version 2, because that's the only double‐ended

165:17 plug that's ever been around; correct?

165:18 A. Right.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 50 of 305
165:19 Q. Do you notice where it says:

165:20 Which fits most of the adult population. Do

165:21 you see that?165:22 A. Yes.

165:23 Q. Do you know what percentage of

165:24 the adult population it fits?

165:25 A. I would say probably

166:01 seventy‐five ‐‐166:02 Q. Okay.166:03 A. ‐‐ maybe eighty.

166:10 ‐ 167:17 Battler, Leanne 2020‐09‐10

166:10 Q. And let me ask you this, Re: [167:03 to 167:17]

166:11 Lieutenant Colonel: The ‐‐ you

mentioned that Def Obj misleading (611, 

166:12 when you went to ‐‐ I think you said

when you

166:13 got to Iraq, when you arrived, as

part of the

166:14 Rapid Fielding Initiative, somebody

just handed

166:15 you two plugs; is that correct?

166:16 A. That was before I was in Iraq.

166:17 That was at the CRC, at Fort

Benning. The

166:18 predeployment.166:19 Q. What year would that have been?

166:20 A. 2008.166:21 Q. And you saw that ‐‐ those just

166:22 being handed out without any

instructions, that

166:23 was you and did you say there were

five of you

166:24 in total?

166:25 A. Right. So it was like a round

167:01 robin, we all kind of circulated

through the

167:02 different stations in our team.

167:03 Q. Okay. But there were just five

167:04 of you that you saw receive them

this way;

167:05 true?167:06 A. Yes.167:07 Q. Okay. And you already knew how

167:08 to insert them properly; correct?167:09 A. Yes.167:10 Q. And then you then showed the

167:11 other people that were in your

group how to

167:12 insert them properly; correct?

167:13 A. Yes.167:14 Q. Okay. And at that point in time,

167:15 in 2008, the Army had been using

this earplug,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 51 of 305
167:16 is it approximately four years?

167:17 A. Yes.

167:25 ‐ 168:14 Battler, Leanne 2020‐09‐10

167:25 Q. The only time ‐‐ The only time Re: [167:25 to 168:08]

168:01 that you've ever seen them handed

out without Def Obj misstates; vague 

168:02 instruction, as you described, was

the time 403)

168:03 where you were there with that

group of five

168:04 people; correct?

168:05 MR. NOMELLINI: Object to form168:06 and foundation.168:07 A. That's the only time I was

168:08 physically in the RFI site, yes.

168:09 Q. Okay. And during that time, the168:10 plugs had been around for four

years; correct?

168:11 A. They had been ‐‐ Yes.

168:12 Q. And you then instructed your

168:13 group on how to put them in;

correct?

168:14 A. Yes.

168:15 ‐ 168:19 Battler, Leanne 2020‐09‐10

168:15 Q. So you can't tell me of any Re: [168:15 to 168:19]

168:16 situation where you know

somebody has been Def Obj incomplete coun

168:17 given these and not had instructions

at some (106)

168:18 point in time; true?

168:19 A. Negative. Soldiers would tell me

169:08 ‐ 169:16 Battler, Leanne 2020‐09‐10

169:08 Q. Understood. But I'm going ‐‐ But Re: [169:08 to 169:16]

169:09 based upon your personal

knowledge, from what Def Obj vague, leading (6

169:10 you have actually seen, it's only that

little 403)

169:11 group of five, and they quickly

received

169:12 instruction from you; right?

169:13 MR. NOMELLINI: Object to the169:14 form of the question.169:15 Q. Is that correct?

169:16 A. Correct.

171:01 ‐ 171:24 Battler, Leanne 2020‐09‐10

171:01 One of the things that you were

171:02 talking about before is the Fort

Carson study

171:03 that you did. Do you remember

talking about

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 52 of 305
171:04 that, the study that was called Fort

Carson:

171:05 An Army Hearing Program Success

Story.

171:06 Do you remember that?

171:07 A. Yes.171:08 Q. I have a couple of questions

171:09 about that. Was that a ‐‐ Was that

done

171:10 through an IRB?171:11 A. It was not a research study, so

171:12 there was no need for IRB.

171:13 Q. Okay. Was it multicenter or just

171:14 your base ‐‐ or your fort?171:15 A. Just Fort Carson.

171:16 Q. Okay. And it was never peer

171:17 reviewed by any formal journal at

any journal

171:18 review board; correct?171:19 A. It was peer reviewed. The AMED

171:20 Journal is a peer‐reviewed journal.

171:21 Q. It is a peer‐reviewed journal.171:22 Okay. And that article does not

speak for the

171:23 Army, does it?

171:24 A. Correct.

171:25 ‐ 172:17 Battler, Leanne 2020‐09‐10

171:25 Q. A couple of things, do you Re: [171:25 to 172:17]

172:01 understand that the Army

performed a criminal Def Obj foundation (602

172:02 investigation with regard to the

Combat Arms MIL No. 6; 403

172:03 Version 2?172:04 A. No.172:05 Q. Okay. So you're unaware that

172:06 there was a criminal investigation

into the

172:07 Combat Arms Version 2 earplug?

172:08 A. Correct.172:09 Q. And I take it, since you were

172:10 unaware that there was an Army

criminal

172:11 investigation, that you don't know

any of the

172:12 evidence that was included in the

Army's

172:13 criminal investigation of the Combat

Arms

172:14 Version 2 earplug; true?

172:15 A. True.172:16 Q. I cannot hear you.

172:17 A. True.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 53 of 305
172:19 ‐ 172:23 Battler, Leanne 2020‐09‐10

172:19 I take it that you are ‐‐ Are you Re: [172:19 to 172:23]

172:20 aware that the Combat Arms

Version 2 earplug Def Obj 3M MIL No. 16; 

172:21 was discontinued in November of

2015?

172:22 A. I knew it was discontinued. I

172:23 wasn't sure the exact date, but, yes.

173:03 ‐ 173:16 Battler, Leanne 2020‐09‐10

173:03 Q. Okay. With regard to your ‐‐173:04 With regard to your knowledge of

the Combat

173:05 Arms Earplug Version 2, you've

never done any

173:06 REAT testing on the Version 2;

correct?

173:07 A. Correct.173:08 Q. You've never done any Meyer

173:09 testing on the Version 2; correct?173:10 A. Correct.173:11 Q. You've never done any impulse

173:12 testing on the Version 2; correct?173:13 A. Correct.173:14 Q. You've never had any access to

173:15 Aearo's REAT data for the version 2;

correct?

173:16 A. Correct.

173:18 ‐ 173:20 Battler, Leanne 2020‐09‐10

173:18 We talked about the wallet card earlier. Do

173:19 you remember that?

173:20 A. Yes.

173:21 ‐ 174:08 Battler, Leanne 2020‐09‐10

173:21 Q. When did you start using the

173:22 wallet card?173:23 A. I guess when ‐‐ when it was

173:24 available.173:25 Q. And I asked a poor question. Let

174:01 me be more specific. What year was

it

174:02 available?174:03 A. That's a great question. I'm

174:04 trying to think if we had it in Fort

Hood.

174:05 Well, we must have had it in Fort

Hood because

174:06 ‐‐ Yeah. So what year was it on the ‐‐

174:07 Whatever year the ‐‐ I don't know

exactly what

174:08 year it came available.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 54 of 305
174:09 ‐ 175:24 Battler, Leanne 2020‐09‐10

174:09 Q. Okay. And how would you use the

174:10 wallet card? When you fit soldiers, would you

174:11 hand them one?

174:12 A. Not usually. I'd say ‐‐ After we

174:13 did the fitting, then I would say: Here's some

174:14 cards; if anybody wants to keep a card to kind

174:15 of remember if you forget what we talked about,

174:16 you can use this as a refresher.

174:17 Q. Okay. So it was ‐‐ It was

174:18 optional, additional instruction that were

174:19 available to the soldiers?

174:20 A. When we had them available, yes.

174:21 Q. Okay. And did you, like, pass

174:22 them out or did you just kind of have them in a

174:23 bowl on a table somewhere and say: If anybody

174:24 wants one, just pick one up?

174:25 A. Never a bowl. It was always, if

175:01 they were ‐‐ Yeah. If we had them, I'd have

175:02 them in my hand and say, who wants one of

175:03 these? Anybody want one of these?175:04 Q. Okay. You also said you used a

175:05 PowerPoint, I guess, to explain how to use the

175:06 Combat Arms Version 2s?

175:07 A. Yes.175:08 Q. And what did that PowerPoint have

175:09 in it?

175:10 A. So, again, I had like the ‐‐

175:11 Well, kind of ‐‐ the picture of the wallet

175:12 card, and then I had the picture of Ron Millis

175:13 with his quote. Then we would have a short

175:14 video of a blast, and then another video of a

175:15 truck engine in the motor pool to talk about

175:16 the difference between impulse noise and steady

175:17 state noise; and then we'd talk about which end

175:18 to put in in each scenario. And then I would

175:19 do it up there on the stage, I'd say pull up

175:20 and back. And my techs would usually be in the

175:21 audience, you know, running around giving

175:22 everybody size medium, looking in their ears as

175:23 they came in for the briefing. And then we try

175:24 to do an en masse, you know, fitting like that.

175:25 ‐ 176:07 Battler, Leanne 2020‐09‐10

175:25 Q. And when you would be giving

176:01 these PowerPoint presentations to

the men and

176:02 women of the United States Army,

how big of a

176:03 group would you be giving that to?

Would it be

176:04 ten people, a hundred people, more

than that?

176:05 A. One time, there was a large group

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 55 of 305
176:06 of about two hundred. But most of

the time

176:07 they were much smaller.

176:08 ‐ 176:11 Battler, Leanne 2020‐09‐10

176:08 Q. Once a soldier was instructed on

176:09 how to insert the Combat Arms, did

you find

176:10 that they were able to consistently

insert

176:11 them?

176:15 ‐ 176:20 Battler, Leanne 2020‐09‐10

176:15 A. Yeah. Usually. I mean, well,

176:16 that was part of it, is ‐‐ is we would,

you

176:17 know, instruct them how to do it,

and then we

176:18 would do the follow‐on tug test to

make sure

176:19 that they had achieved the proper

seal; and, if

176:20 not, we would reinstruct them.

177:13 ‐ 177:23 Battler, Leanne 2020‐09‐10

177:13 Q. Now, you had mentioned before,

177:14 with regard to the earplugs, when

you wore

177:15 them, you could tell if they had a

good fit or

177:16 seal; correct?

177:17 A. Yes.177:18 Q. And I can't remember the phrase

177:19 that you used, but I guess it involved

just the

177:20 noise that you would be hearing; is

that right?

177:21 A. Right. You'd kind of hear your

177:22 environmental ‐‐ just the air, cutting

in and

177:23 out.

177:24 ‐ 178:15 Battler, Leanne 2020‐09‐10

177:24 Q. Now, is it more difficult to tell Re: [177:24 to 178:15]

177:25 if you've got a good seal with the yellow end, Pltf Obj 11. Foundation

178:01 because that is supposed to allow for a lot of

178:02 those sounds to come through anyway?

178:03 A. No. Because it's different.178:04 Q. Explain the difference.

178:05 A. You hear all of the environment

178:06 coming ‐‐ coming in and out, rather than a

178:07 portion of it.

178:08 Q. So what you're saying is,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 56 of 305
178:09 determining whether or not there is a seal in

178:10 the earplugs is the same for the yellow side as

178:11 the green side?

178:12 A. Yes.

178:13 Q. Even though the yellow side has a

178:14 hole in it?

178:15 A. Yes.

178:16 ‐ 181:14 Battler, Leanne 2020‐09‐10

178:16 Q. Okay. If we could, you did ‐‐

178:17 You talked earlier with 3M's counsel,

Mr.

178:18 Nomellini, about the survey that you

had done

178:19 of some of the soldiers to ask them

about their

178:20 usage of the Combat Arms Version

2, do you

178:21 remember that?178:22 A. In the PDHRA, yes.

178:23 Q. Yes. And I believe ‐‐ I've seen178:24 an email, I can pull it up, you might

remember

178:25 this, you were intending to look at

twenty‐five

179:01 people on a Thursday and then

another

179:02 twenty‐five on a Friday. That was

the

179:03 intention; correct?

179:04 A. I remember ‐‐ I don't recall that

179:05 exactly, but I do remember reading

that that

179:06 was ‐‐ Yes.179:07 Q. Okay. And you were able to get

179:08 four of them done; correct?

179:09 A. Wasn't it ten?

179:10 Q. I found four.

179:11 A. Oh.179:12 Q. And I believe you forwarded four

179:13 to ‐‐ I guess we can pull up ‐‐ Let me

go ahead

179:14 and pull up the email that talks

about that.

179:15 Give me one second.

179:16 Yeah. This is the one that says

179:17 twenty‐five.

179:18 MR. MONSOUR: Okay. If you'll

179:19 pull up LC‐006.

179:20 Q. And if you will look, Lieutenant

179:21 Colonel, you will see that this is an

email

179:22 that you sent to a man by the name

of Brian

179:23 Myers. Do you see that?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 57 of 305
179:24 A. Yes.

179:25 Q. And that took place on August 22,

180:01 2005; correct?180:02 A. Yes.180:03 Q. And it says questions regarding

180:04 Combat Arms earplugs; correct?

180:05 A. Yes.180:06 Q. And Brian Myers works with

Aearo,

180:07 which is now 3M; correct?

180:08 A. I honestly don't remember who

180:09 Brian Myers is.180:10 Q. Look down a little lower on the

180:11 email, you will see Brian Myers'

email address

180:12 down below, and it notes that he

has an Aearo

180:13 email address.180:14 Do you see that?

180:15 A. Yes.180:16 Q. Okay. Does that clear that up?180:17 A. Yes.180:18 Q. Okay. If you'll look at the

180:19 email that you sent to him, you say:

Brian ‐‐

180:20 MR. MONSOUR: Go up a little bit.

180:21 Q. Brian, I am attaching responses

180:22 from four soldiers. I only had the

opportunity

180:23 to interview these four. I thought I

was going

180:24 to see more soldiers, but that's the

way it

180:25 worked out.181:01 Did I read that reasonably

181:02 correctly?181:03 A. Yes.181:04 Q. And then it says: And one of

181:05 them, number 3 I think, had to leave

before we

181:06 finished all the questions. Even with

this

181:07 small number, I think they

generated some

181:08 really good ideas, mainly, that they

seem to

181:09 want the earplugs integrated with

either their

181:10 helmet or sunglasses and also that

they need

181:11 them to be available in a greater

variety of

181:12 sizes. I hope this helps. Captain

Cleveland.

181:13 Did I read that right?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 58 of 305
181:14 A. Yes.

181:15 ‐ 181:22 Battler, Leanne 2020‐09‐10

181:15 Q. I think we've made this clear,

181:16 your name is Leanne Battler, but your name used

181:17 to be Leanne Cleveland; correct?

181:18 A. Yes.181:19 Q. So any time we see anything from

181:20 Leanne Cleveland, regardless of rank, that's

181:21 you?181:22 A. That's me.

182:18 ‐ 182:23 Battler, Leanne 2020‐09‐10

182:18 MR. MONSOUR: Okay. I'll do it.

182:19 Let's pull up Exhibit LC‐008, and let's

mark

182:20 this as Exhibit 14 ‐‐ excuse me, 15.

182:21 (Whereupon, Plaintiff's

182:22 Exhibit 15 was marked for

182:23 identification purposes.)

182:24 ‐ 184:20 Battler, Leanne 2020‐09‐10

182:24 Q. This is one of your surveys, Re: [184:15 to 184:20]

182:25 correct, one of the four? Def Obj foundation (602

183:01 A. Yes. vague, leading (611, 403

183:02 Q. If we look at that, look at

183:03 question number two, it says: Do

you believe

183:04 your hearing has been affected by

the loud

183:05 noises you heard? Why or why not?

He says:

183:06 Yes. I didn't wear the earplugs all

the time

183:07 because they were too big and they

hurt and

183:08 they didn't work very well.

183:09 Do you see that?

183:10 A. Yes.183:11 Q. And then if you look down at

183:12 number four it says: When did you

wear the

183:13 CAE? And he writes ‐‐ he answers: I

rarely

183:14 used them. When we had to use the

headset, I

183:15 could not hear what the driver said

with my

183:16 HPDs in.183:17 Did I read that correct?

183:18 A. Yes.183:19 Q. Then number seven, it says: I

183:20 could not understand conversation

even with the

183:21 yellow end in my ear. They were

too big for my

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 59 of 305
183:22 ear. They need to come in different

sizes.

183:23 Do you see that?

183:24 A. Yes.183:25 Q. And then if we look at number

184:01 nine, he notes: They hurt too much,

so I

184:02 didn't use them enough.

184:03 Do you see that?

184:04 A. Yes.184:05 Q. And then, finally, number eleven

184:06 goes back to that comfort issue that

you and I

184:07 were talking about just a few

minutes ago, it

184:08 says: Anything else that you would

like to say

184:09 about what did or did not work with

the Combat

184:10 Arms earplug or comments on how

it might be

184:11 improved? And the answer was:

They fit too

184:12 big. It makes you not want to wear

them.

184:13 Did I read that correctly?

184:14 A. Yes.184:15 Q. Now, so that's one person of the

184:16 four that did not like the Combat

Arms;

184:17 correct?184:18 MR. NOMELLINI: Object to form184:19 and foundation.184:20 A. Yes.

184:21 ‐ 190:09 Battler, Leanne 2020‐09‐10

184:21 (Whereupon, Plaintiff's Re: [188:06 to 188:11]

184:22 Exhibit 16 was marked for Def Obj vague, leading (6

184:23 identification purposes.) 403); foundation (602)

184:24 Q. Okay. Let's go to Exhibit Number

184:25 16, which is LC‐009. And this person

says, Re: [190:05 to 190:09]

185:01 number four: I used them during

the convoy Def Obj vague, leading (6

185:02 live fire exercise on the road trip

from 403); foundation (602)

185:03 Kuwait, but then I lost them.

185:04 Correct?185:05 A. Yes.

185:06 Q. And then number five says: How185:07 often and how long did you typically

wear it?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 60 of 305
185:08 And the response is: For one week,

then I lost

185:09 them and used the triple‐flange and

the foam

185:10 for the rest of the year.

185:11 Did I read that correctly?

185:12 A. Yes.185:13 Q. And then if you go down to

number

185:14 seven it says: They were difficult to

store.

185:15 They were too big for the case. A lot

of the

185:16 people kept them on their Kevlar,

but they got

185:17 dusty and dirty and didn't want to

wear them

185:18 when they got like that. I lost mine

with my

185:19 brown scarf when we switched over

to another

185:20 vehicle.185:21 Do you see that?

185:22 A. Yes.185:23 Q. He does note that there was a

185:24 complaint that they were too big for

the case.

185:25 Do you see that?

186:01 A. Yeah.186:02 (Whereupon, Plaintiff's

186:03 Exhibit 17 was marked for

186:04 identification purposes.)186:05 Q. Let's go to Exhibit Number 17,186:06 which is LC‐010. This is the third

person.

186:07 And on number two it says: Do you

believe your

186:08 hearing has been affected by the

loud noises

186:09 you heard? Why or why not? And

the answer is:

186:10 Yes. My hearing is worse and the

ringing is

186:11 worse. My tinnitus used to be

intermittent,

186:12 now it's all the time.

186:13 Did I read that correctly?

186:14 A. Yes.186:15 Q. Then if we look at number four,

186:16 it says: When did you wear the

CAE? And the

186:17 person answers: Approximately one

week, but

186:18 they were too irritating. Too deep

inside the

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 61 of 305
186:19 ear canal. And then it's explained

that the

186:20 soldier switched to using an oral

186:21 triple‐flanged earplug; correct?

186:22 A. Yes.186:23 Q. If a plug is too irritating and

186:24 fits too deep inside the ear canal,

that can be

186:25 a problem for that plug's fit;

correct?

187:01 MR. NOMELLINI: Object to the187:02 form.187:03 Q. Is that correct?

187:04 A. So you've got too irritating, too

187:05 deep, does that mean they were too

big or that

187:06 he didn't like the consistency of the

silicone?

187:07 Q. I don't know. I wasn't there to

187:08 ask him the question, but you were.

Do you

187:09 remember?187:10 A. No.187:11 Q. If we look at number seven, it

187:12 says: We are in the process of

redesigning the

187:13 CAE. If length of the actual earplug

was an

187:14 issue, how long can the CAE be and

not

187:15 interfere with other tasks which you

must

187:16 perform, like talking on the radio, et

cetera?

187:17 And it says here: The hand mic used

in radio

187:18 control depresses the CAE further

into the ear

187:19 canal making it way too irritating.

Make the

187:20 length flush with the opening of the

ear canal.

187:21 Did I read that right?

187:22 A. Yes.187:23 Q. And then if we go to eleven, it

187:24 says: Anything else that you would

like to say

187:25 about what did or did not work with

the CAE or

188:01 comments on how it might be

improved? And the

188:02 person responds: Length both too

far in the

188:03 canal and too far out of the canal.

188:04 Did I read that correctly?

188:05 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 62 of 305
188:06 Q. So it looks like this person

188:07 didn't particularly like the plugs

either.

188:08 Fair statement?188:09 MR. NOMELLINI: Object to the188:10 form and foundation.

188:11 A. I agree.

188:12 (Whereupon, Plaintiff's

188:13 Exhibit 18 was marked for

188:14 identification purposes.)188:15 Q. Okay. So that's two out of three

188:16 that didn't like it. And let's go to

Exhibit

188:17 Number 18, and that's LC‐011.

188:18 And this one, I believe, is one

188:19 that Mr. Nomellini went through

you ‐‐ with you

188:20 through. And he explains that he

wore his

188:21 earplugs all the time under number

two. If I

188:22 hadn't worn hearing protective

devices, I would

188:23 have had serious problems or else

have been

188:24 deaf.188:25 Correct?189:01 A. Yes.189:02 Q. Then at the end, number eleven,

189:03 he says: No, I wouldn't change

anything at

189:04 all.189:05 True? Is that right?189:06 A. Yes.189:07 Q. So we've got one person that

189:08 likes them, one person that says

they're too

189:09 irritating, one person that lost them

after a

189:10 week, and another person that

thought they were

189:11 too big; correct?

189:12 A. Say that again. One ‐‐

189:13 Q. Sure. One thought they were too189:14 big and they hurt and that they

didn't work

189:15 well, that's the first person.

Correct?

189:16 A. Okay.189:17 Q. One used them for a week and

then

189:18 lost them. That's the second

person; correct?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 63 of 305
189:19 A. Uh‐huh.

189:20 Q. The third person found that they

189:21 were too irritating and had to switch

to a

189:22 different triple‐flange plug after a

week and

189:23 thought they went too far in the

canal;

189:24 correct?189:25 A. Yes.190:01 Q. And then the fourth person liked

190:02 the plug and said: I wouldn't change

anything

190:03 at all; correct?

190:04 A. Yes.190:05 Q. So out of four people, two of190:06 them didn't like them; fair?

190:07 MR. NOMELLINI: Object to the190:08 form.190:09 A. Fair.

190:10 ‐ 190:20 Battler, Leanne 2020‐09‐10

190:10 (Whereupon, Plaintiff's

190:11 Exhibit 19 was marked for

190:12 identification purposes.)190:13 Q. Now, if we could pull up

190:14 Plaintiff's Exhibit ‐‐ let me see. This

should

190:15 be 19. Let's mark it P 1272.2.

190:16 Have you seen this document

190:17 before?190:18 A. Yes.190:19 Q. Okay. What is it?190:20 A. I made this.

191:13 ‐ 192:23 Battler, Leanne 2020‐09‐10

191:13 Q. Okay. Now, one of the things, if Re: [192:11 to 192:19]

191:14 we look on here, on the right‐hand

side of the Def Obj foundation (602

191:15 document, underneath number

three, in the third vague (611, 403)

191:16 column, it says, and you had talked

about this

191:17 earlier, it says: All earplugs work

loose and

191:18 must be reseated after a period of

time.

191:19 Do you see that?

191:20 A. Yes.191:21 Q. Do you agree with that?

191:22 A. Yes.191:23 Q. How long, typically, does it take

191:24 for an earplug to work loose as is

being

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 64 of 305
191:25 described here?

192:01 A. Well, that depends if they're

192:02 chewing gum or ‐‐ it depends on the

individual.

192:03 Q. Okay. How often ‐‐ You say plugs

192:04 must be reseated. Can there be a

plug that has

192:05 to be reseated ‐‐ that needs to be

reseated so

192:06 often that it's not very helpful, not

very

192:07 useful?192:08 A. I guess if it was fitting barely,

192:09 then, yeah. If it was less than a

perfect fit

192:10 then it would need to be reseated

more often.

192:11 Q. Why would having to reseat a

plug

192:12 more often cause problems for

soldiers?

192:13 MR. NOMELLINI: Object to the192:14 form of the question.192:15 MAJ WALD: I would just remind

192:16 you to answer with your ‐‐ based on

personal

192:17 knowledge.192:18 A. Well, it's hard to fire a weapon

192:19 when you're adjusting your hearing

protection.

192:20 Q. Fair enough. So you want a plug

192:21 that stays in longer, rather than

shorter;

192:22 fair?192:23 A. Correct.

193:07 ‐ 193:19 Battler, Leanne 2020‐09‐10

193:07 Q. And what is that a picture of?

193:08 A. So with the old BDU, the battle

193:09 dress uniform, we used to have a

pocket on the

193:10 right front breast, and the part of

the uniform

193:11 was to wear the earplug carrying

case with your

193:12 unit crest attached to the button on

that

193:13 uniform. So that was the Darnell

Army

193:14 Community Hospital crest, my

earplug case, and

193:15 those earplugs are the Elvex

Quattro, which I

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 65 of 305
193:16 found were softer of silicone than

the orange

193:17 triple‐flanged, and which were ‐‐ 

which

193:18 provided a similar fit to the orange

193:19 triple‐flange.

193:20 ‐ 193:23 Battler, Leanne 2020‐09‐10

193:20 Q. Okay. You insert triple‐flange193:21 plugs basically the same way you do

quad‐flange

193:22 plugs?193:23 A. Yes.

193:24 ‐ 195:13 Battler, Leanne 2020‐09‐10

193:24 Q. Okay. I note there it says: Re: [195:07 to 195:13]

193:25 Every soldier who in‐processes

through Fort Def Obj foundation (602

194:01 Hood Hearing Conservation Clinic is

fitted with vague, leading (611, 403

194:02 a pair of preformed earplugs and

issued a

194:03 carrying case.

194:04 Do you see that?

194:05 A. Yes.194:06 Q. Now, what does in‐process

mean?

194:07 A. So when you ‐‐ When you arrive

at

194:08 your new duty station, when you

PCS, permanent

194:09 change of station. So when you're a

brand‐new

194:10 soldier, you've got your orders that

say you

194:11 will report to Fort Hood, you in‐

process, and

194:12 that's when you go through all of

your medical

194:13 checks, and you are assigned your

new unit and

194:14 leadership, your housing, you get

your kids

194:15 enrolled in school. But the medical

194:16 in‐processing at Fort Hood was done

through the

194:17 Soldier Readiness Center.

194:18 Q. Are a lot of soldiers processed

194:19 through Fort Hood?194:20 A. Yes.194:21 Q. It's a pretty big Army fort,

194:22 isn't it?194:23 A. Huge.194:24 Q. Huge. So every soldier that

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 66 of 305
194:25 shows up at Fort Hood goes through

a fitting

195:01 process with these types of plugs;

correct?

195:02 A. Yes.195:03 Q. And those are put in basically

195:04 the same way as a Combat Arms

Version 2 plug;

195:05 correct?195:06 A. Yes.195:07 Q. So if I can put in one of these,

195:08 I can put in a Version 2; correct?

195:09 MR. NOMELLINI: Object to form195:10 and foundation.195:11 Q. Is that correct?

195:12 A. You should. It's the same

195:13 process, yeah.

195:14 ‐ 195:19 Battler, Leanne 2020‐09‐10

195:14 Q. Right. Okay. So it appears that Re: [195:14 to 196:01]

195:15 the Army, if it's addressed in basic

training, Def Obj foundation (602

195:16 and then it's addressed every time a

soldier vague, leading (611, 403

195:17 moves, it appears that the Army is

constantly

195:18 reinforcing hearing protection fit

and how to

195:19 put them in; is that a fair statement?

195:24 ‐ 196:01 Battler, Leanne 2020‐09‐10

195:24 Q. You can answer the question. Re: [195:14 to 196:01]

195:25 A. Speaking for my ‐‐ my clinics, Def Obj foundation (602

196:01 yes. vague, leading (611, 403

196:02 ‐ 196:19 Battler, Leanne 2020‐09‐10

196:02 (Whereupon, Plaintiff's

196:03 Exhibit 20 was marked for

196:04 identification purposes.)196:05 Q. Okay. Now, if we could,

196:06 Lieutenant Colonel, let's pull up a

document

196:07 LC‐003. And if we will look at the

top of

196:08 LC‐003, and I'll mark that as Exhibit ‐‐

I'm

196:09 sorry, the document that I

previously had up on

196:10 the screen, let's mark that one that

had the

196:11 photos on it as Exhibit Number 19.

And I will

196:12 mark this exhibit, LC‐003, as Exhibit

Number

196:13 20.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 67 of 305
196:14 If we look at this document,

196:15 Lieutenant Colonel, do you see that

it is an

196:16 email that is ‐‐ that the top was sent

from a

196:17 Captain William Porter, to Brian

Myers and you,

196:18 in August of 2005?

196:19 A. Yes.

197:25 ‐ 201:01 Battler, Leanne 2020‐09‐10

197:25 Q. And then it appears that if you Re: [199:10 to 199:17]

198:01 look in the email immediately above

that, they Def Obj foundation (602

198:02 are talking about getting some of

the 403; leading

198:03 audiologists that have talked to

some people to

198:04 get the information. Re: [200:20 to 201:01]

198:05 Do you see that? Def Obj foundation (602

198:06 A. Yes. leading, vague (611, 403198:07 Q. And then if we go up a couple of

198:08 emails before that, there's one from

a

198:09 Lieutenant Colonel Vickie Tuten.

Did I

198:10 pronounce that right?198:11 A. Yes, you did.

198:12 Q. And it is from Lieutenant Colonel

198:13 Tuten to a Roberta Nang and a

William ‐‐

198:14 Captain William Porter, and you are

cc'd on it;

198:15 correct?198:16 A. Yes.198:17 Q. And if we look at the end of the

198:18 first paragraph, Lieutenant Colonel

Tuten

198:19 writes: I know I've personally had

feedback

198:20 about fit/comfort issues.198:21 Do you see that?

198:22 A. Yes.198:23 Q. Now, you also had feedback on

198:24 fit/comfort issues; correct?

198:25 A. Yes.199:01 Q. And then if you look immediately

199:02 above, you see there is an email

from Captain

199:03 William Porter, and he lists three

criticisms

199:04 of the system.199:05 Do you see that?

199:06 A. Yes.199:07 Q. What is the first criticism

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 68 of 305
199:08 Captain Porter notes?

199:09 A. Fit and size.

199:10 Q. And, again, you saw fit and size

199:11 problems, Lieutenant Colonel Tuten

saw fit

199:12 problems, and now Captain Porter

sees the same

199:13 problems; correct?

199:14 MR. NOMELLINI: Object to the199:15 form of the question.

199:16 A. Right. The fit problem was that

199:17 there was only one size.

199:18 Q. Okay. And then it says here, let

199:19 me read you what Captain Porter

says:

199:20 Fit/size. As you are well aware, not

every

199:21 external ear canal is the same size,

and some

199:22 soldiers could not/did not wear the

CAE and

199:23 choose to wear other hearing

protection because

199:24 it was more comfortable.

199:25 Do you see that?

200:01 A. Yes.200:02 Q. Is it a fair statement that if

200:03 you put an earplug in somebody's

ear and it's

200:04 too big, that it hurts?

200:05 A. That's fair.

200:06 Q. And if it hurts, that's a problem

200:07 for the user; true?

200:08 A. True.200:09 Q. If we look down, number three,

200:10 there's an issue with compatibility

that

200:11 Captain Porter notes. He writes:

200:12 Compatibility with the standard

Army earplug

200:13 case, the CAE will fit into the

standard

200:14 plastic earplug case, but not without

some

200:15 struggle. If you develop a new

version of the

200:16 CAE, the case should be integrated

with the

200:17 product.200:18 Did I read that correctly?

200:19 A. Yes.200:20 Q. So it appears from Captain Porter

200:21 the product was too big for the

carrying case;

200:22 fair?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 69 of 305
200:23 MR. NOMELLINI: Object to form

200:24 and foundation.200:25 Q. Is that fair?

201:01 A. It was wrong, yes.

201:02 ‐ 201:19 Battler, Leanne 2020‐09‐10

201:02 Q. And then if we go back to where

201:03 we kind of started, Lieutenant

Colonel, we go

201:04 to the email from Brian Myers on

8/16, to ‐‐

201:05 back to the same William Porter,

Captain

201:06 Porter, and you have been cc'd on it,

and he

201:07 says: First, I want to thank you for

the

201:08 feedback. The first two items are

high on our

201:09 list for improvements, and I believe

you will

201:10 be much happier with the version

currently

201:11 under development.201:12 We have conducted an additional

201:13 testing to determine if we are able

to decrease

201:14 filter and earplug size but retain the

201:15 performance of the product. It

appears that we

201:16 can do this, which will go a long way

toward

201:17 resolving the fit/comfort issue.

201:18 Do you see that?

201:19 A. Yes.

201:20 ‐ 202:05 Battler, Leanne 2020‐09‐10

201:20 Q. Do you agree that there was a Re: [202:03 to 202:10]

201:21 fit/comfort issue with these plugs? Def Obj 702; foundation 

201:22 A. Because they were only one size.

leading, vague (611, 403

201:23 Q. Right. But he also mentions that

201:24 there was an issue with decreasing

the filter

201:25 size.202:01 Do you see that?

202:02 A. I do.

202:03 Q. Do you understand that the filter

202:04 was too big, and that was having an

issue with

202:05 regard to comfort?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 70 of 305
202:08 ‐ 202:10 Battler, Leanne 2020‐09‐10

202:08 A. For people with size small ear Re: [202:03 to 202:10]

202:09 canals, it would have been too ‐‐ the

‐‐ the Def Obj 702; foundation 

202:10 earplug would have been too big. leading, vague (611, 403

202:11 ‐ 202:14 Battler, Leanne 2020‐09‐10

202:11 Q. Well, here's my ‐‐ What

202:12 percentage of the Army's population has ear

202:13 canals that are too small?

202:14 A. Not that many.

202:15 ‐ 203:04 Battler, Leanne 2020‐09‐10

202:15 Q. And, yet, we noted on your

202:16 previous interview of those four

people, two of

202:17 them didn't like the fit; true?

202:18 MR. NOMELLINI: Object to the202:19 form of the question.

202:20 Q. You can answer.202:21 A. Go back again. So the ‐‐ Was it

202:22 that they didn't like the softness of

the ‐‐

202:23 I'm not sure how you're determining

the word

202:24 fit, how you're defining the word fit.

202:25 I'm not sure how you're defining

203:01 the word fit.203:02 Q. Okay. They thought they were

203:03 uncomfortable, true, two of the

four?

203:04 A. Correct.

203:05 ‐ 203:09 Battler, Leanne 2020‐09‐10

203:05 Q. And if you're saying it should

203:06 only be for the smallest ear canals, that's not

203:07 very many people, but we still have a

203:08 significant number that are reporting it's not

203:09 very comfortable.

203:15 ‐ 203:19 Battler, Leanne 2020‐09‐10

203:15 A. Right. I guess you'd ‐‐ you'd

203:16 need to be more precise about what ‐‐ how they

203:17 were defining comfort. Was it because of ‐‐ I

203:18 know that the softness of the silicone was an

203:19 issue.

203:20 ‐ 203:23 Battler, Leanne 2020‐09‐10

203:20 Q. One of them said it was too

203:21 irritating because it went deep

inside the ear

203:22 canal; correct?203:23 A. Uh‐huh.

203:24 ‐ 204:04 Battler, Leanne 2020‐09‐10

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 71 of 305
203:24 Q. And the other one said they hurt

Re: [203:24 to 204:06]

203:25 too much, so I didn't use them

enough. They Def Obj leading, vague (6

204:01 fit too big. It makes you not want to

wear 403); improper counter (

204:02 them. out response at 204:7‐10204:03 Correct?204:04 A. Correct.

204:11 ‐ 204:13 Battler, Leanne 2020‐09‐10

204:11 Q. Okay. But on one of them it does

204:12 appear to be a diameter issue, because it

204:13 hurts; true?

204:16 ‐ 204:17 Battler, Leanne 2020‐09‐10

204:16 A. Not necessarily. To me, it could

204:17 have been the silicone softness.

207:02 ‐ 207:25 Battler, Leanne 2020‐09‐10

207:02 Q. So let's talk about a few of Re: [207:09 to 207:25]

207:03 these things. We had talked about

this before Def Obj leading (611, 40

207:04 but can you again state for us, why

is it

207:05 important to have a plug that you

don't have to

207:06 constantly reinsert?

207:07 A. Because you need two hands to

207:08 operate your radio or fire your

weapon.

207:09 Q. If your earplugs are loosening

207:10 and you have to constantly free one

of your

207:11 hands to stick them back in ‐‐ or

actually use

207:12 both hands, because you've got to

pull the

207:13 pinna back and stick it in, that can

be a

207:14 problem to a soldier who is busy

looking for

207:15 bad guys that are trying to kill him;

true?

207:16 A. True.207:17 Q. And that's one of the things that

207:18 you mentioned earlier, is we want

our soldiers

207:19 to be lethal. As mean as that

sounds, we want

207:20 them lethal; right?

207:21 A. Yes.207:22 Q. And if they're fidgeting with

207:23 their earplugs, they're not very

lethal, are

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 72 of 305
207:24 they?

207:25 A. Correct.

210:05 ‐ 210:14 Battler, Leanne 2020‐09‐10

210:05 Q. And the paragraph that says ‐‐ on

Re: [210:05 to 210:14]

210:06 the left‐hand size that says:

Designed to meet Def Obj relevance (401, 

210:07 the unique demands of the Armed

Forces. On 403

210:08 this one, it says: The level‐

dependent

210:09 technology used in the earplug, and

the earplug

210:10 itself, has been tested on human

subjects and

210:11 found to be protective at 190 dBP

for at least

210:12 one hundred exposures.210:13 Do you see that?

210:14 A. Yes.

211:02 ‐ 211:08 Battler, Leanne 2020‐09‐10

211:02 Q. Okay. But doesn't that imply Re: [211:02 to 211:08]

211:03 some sort of a quality for an

earplug, if it Def Obj 702; foundation 

211:04 can be protective at a hundred

exposures for relevance (401, 402); 40

211:05 190 dBP?211:06 MR. NOMELLINI: Object to form.211:07 A. Yes. That's ‐‐ that's a lot ‐‐211:08 lot of noise.

211:19 ‐ 211:25 Battler, Leanne 2020‐09‐10

211:19 Q. Then if we look down one ‐‐ 

under Re: [211:19 to 211:25]

211:20 the dual‐ended Combat Arms

earplugs, there's Def Obj relevance (401, 

211:21 several bullets there. And it notes:

403; foundation (602)

211:22 Premolded triple‐flange design fits

most ear

211:23 canals.211:24 Do you see that?

211:25 A. Yes.

212:07 ‐ 212:19 Battler, Leanne 2020‐09‐10

212:07 Q. It says: The level‐dependent Re: [212:07 to 212:19]

212:08 technology used in the earplug and

the earplug Def Obj relevance (401, 

212:09 itself has been tested on human

subjects and 403; foundation (602)

212:10 found to be protective at 190 dBP

for at least

212:11 a hundred exposures.212:12 Are you aware that that's a false

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 73 of 305
212:13 statement?

212:14 A. It appears ‐‐ Like I said, that's

212:15 a lot of noise. It's surprising to me.

212:16 If ‐‐ It ‐‐ It sounds ‐‐ It212:17 sounds like it could ‐‐ I don't know

who could

212:18 survive a hundred exposures of 190

decibels of

212:19 peak sound pressure level.

212:20 ‐ 212:20 Battler, Leanne 2020‐09‐10

212:20 Q. Does it concern you that 3M's Re: [212:20 to 212:20]

Def Obj incomplete coun

(106); foundation (602)

213:16 ‐ 213:19 Battler, Leanne 2020‐09‐10

213:16 Q. No. Has ‐‐ Have you ever had a

213:17 situation where a vendor has made false

213:18 statements about the capabilities of their

213:19 earplugs?

213:22 ‐ 214:03 Battler, Leanne 2020‐09‐10

213:22 Q. You can answer. Re: [213:24 to 215:07]

213:23 A. I would say yes. Pltf Obj 01. 402, 15. 403

213:24 Q. You have had situations where (Prejudicial vs Probative),

213:25 they've made false claims? 11. Foundation

214:01 A. Yes.

214:02 Q. And who was that?

214:03 A. That was ‐‐

214:10 ‐ 214:25 Battler, Leanne 2020‐09‐10

214:10 A. Okay. The ‐‐ My personal Re: [213:24 to 215:07]

214:11 experience is that the SureFire EP2 earplug was Pltf Obj 01. 402, 15. 403

214:12 ‐‐ was ‐‐ soldiers believed it was going to (Prejudicial vs Probative),

214:13 offer a similar amount of protection as the 11. Foundation

214:14 Combat Arms ISL filter, and my experience was

214:15 it did not.

214:16 Q. How was that a false claim?214:17 A. So that's why I hesitated with

214:18 answering that, because it's not like they

214:19 wrote in the pamphlet EP2 is equivalent to.

214:20 But somehow soldiers were coming into my clinic

214:21 with these SureFire earplugs that Sonic

214:22 Defender added into their flashlight orders,

214:23 and because they were a much softer silicone,

214:24 the soldiers were under the impression that it

214:25 was a fabulous hearing protection.

224:24 ‐ 226:12 Battler, Leanne 2020‐09‐10

224:24 MR. MONSOUR: If you could, Re: [224:24 to 229:03]

224:25 Corey, if you'll pull up Exhibit Number 19. Pltf Obj 01. 402, 11.

225:01 Q. We went through this before. I Foundation, 04. 702, 15. 403

225:02 want to ask you a question about it, Lieutenant (Prejudicial vs Probative)

225:03 Colonel.225:04 If you look at that second

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 74 of 305
225:05 picture on the left‐hand column, you see

225:06 there's a soldier, and his ear has the green

225:07 end sticking out.

225:08 Do you see it?225:09 A. Yes.

225:10 Q. Now, did you take this picture?

225:11 A. I did. That's my husband's ear

225:12 ‐‐ ex‐husband's ear.

225:13 Q. That's your ex‐husband, okay.

225:14 Okay. So you know this soldier; correct?

225:15 A. Yes.

225:16 Q. And what size ear canal did he

225:17 have?225:18 A. Medium.225:19 Q. Medium, okay.

225:20 And do you see how the plug is

225:21 fit in this situation?

225:22 A. Yes.225:23 Q. Do you see how the opposing green

225:24 flange appears to be kind of pushed up against

225:25 his tragus?

226:01 A. Yes.226:02 Q. Do you believe that this picture

226:03 shows a good fit?

226:04 A. Yes.

226:05 Q. Does it appear to you that the

226:06 outside flange in this picture is butting up

226:07 against ‐‐ is flush against his tragus?

226:08 A. It's flush, yes.

226:09 Q. If that flange had a ‐‐ had

226:10 enough tension on it to where it was pushing

226:11 against the tragus and loosening the plug,

226:12 would that be a problem?

226:15 ‐ 226:22 Battler, Leanne 2020‐09‐10

226:15 A. Say that one more time. Pushing Re: [224:24 to 229:03]

226:16 against the ‐‐ Pltf Obj 01. 402, 11.

226:17 Q. Sure. If that flange ‐‐ As it Foundation, 04. 702, 15. 403

226:18 was inserted, if that flange got tension on it (Prejudicial vs Probative)

226:19 because of the insertion, and as the flange

226:20 kind of reverted to form, it pushed the earplug

226:21 kind of out of the ear canal, would that be a

226:22 problem for this plug?

226:25 ‐ 227:05 Battler, Leanne 2020‐09‐10

226:25 A. No. Because the yellow ‐‐ The Re: [224:24 to 229:03]

227:01 yellow part was seated properly. Pltf Obj 01. 402, 11.

227:02 Q. But what if that green flange was Foundation, 04. 702, 15. 403

227:03 forcing the entire earplug to kind of pull out (Prejudicial vs Probative)

227:04 of the ear, would that be a problem with the

227:05 plug?

227:12 ‐ 227:17 Battler, Leanne 2020‐09‐10

227:12 A. I mean ‐‐ Yeah. Does it ‐‐ I Re: [224:24 to 229:03]

227:13 don't know how it would ‐‐ how it would exert Pltf Obj 01. 402, 11.

227:14 force against the tragus. Foundation, 04. 702, 15. 403

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 75 of 305
227:15 Q. If such force against the tragus (Prejudicial vs Probative)

227:16 existed, though, and the plug did loosen, that

227:17 would be a problem with this plug; true?

227:20 ‐ 228:05 Battler, Leanne 2020‐09‐10

227:20 A. It grew arms and pushed itself Re: [224:24 to 229:03]

227:21 out? Pltf Obj 01. 402, 11.

227:22 If the yellow part is seated Foundation, 04. 702, 15. 403

227:23 correctly, so it ‐‐ it ‐‐ the ‐‐ the ‐‐ I don't (Prejudicial vs Probative)

227:24 see ‐‐ I do not ‐‐ I cannot comprehend how the

227:25 green portion would exert any force on the part

228:01 that was inserted in the canal.

228:02 Q. Okay. But I guess here's my

228:03 question: If a plug ‐‐ If the design of a plug

228:04 caused it to loosen itself, that's a problem

228:05 with the plug; true?

228:08 ‐ 228:14 Battler, Leanne 2020‐09‐10

228:08 A. Right. It's hypothetical. It's Re: [224:24 to 229:03]

228:09 not a realistic question. Pltf Obj 01. 402, 11.

228:10 Q. I'm asking about this plug that Foundation, 04. 702, 15. 403

228:11 you used. I'm not talking about a hypothetical (Prejudicial vs Probative)

228:12 plug, I'm talking about a CAEv2. If the design

228:13 of the plug caused the plug itself to loosen,

228:14 that's a problem with the plug; right?

228:21 ‐ 230:12 Battler, Leanne 2020‐09‐10

228:21 A. Yeah, it's hypothetical. It's Re: [224:24 to 229:03]

228:22 hypothetical. Pltf Obj 01. 402, 11.

228:23 The yellow portion of this Foundation, 04. 702, 15. 403

228:24 earplug was seated perfectly. This was a (Prejudicial vs Probative)

228:25 perfect size medium earplug. The green ‐‐ The

229:01 fact that the third flange is touching his Re: [229:04 to 229:13]

229:02 tragus had no impact on how the yellow part Pltf Obj 01. 402, 17.

229:03 remained seated. Objection Nonresponsive

229:04 Q. When you are taking pictures of

229:05 plugs like this, and examining them, did you Re: [229:14 to 230:03]

229:06 seat the plug and then take the picture and Pltf Obj 01. 402

229:07 then move on and do something else? Or did you

229:08 seat the plug and come back an hour later and

229:09 check it again?

229:10 A. My husband put the earplug in; I

229:11 did the tug test; and then he used it for

229:12 several missions, four deployments, and came

229:13 back with excellent hearing and no tinnitus.

229:14 Q. Okay. Do you know any soldiers

229:15 that have come back from serving our country

229:16 that used the Combat Arms earplug and do have

229:17 either hearing loss or tinnitus?

229:18 A. No.

229:19 Q. You don't know one soldier that

229:20 used these plugs that has either hearing loss

229:21 or tinnitus?

229:22 A. I don't know ‐‐ Of the soldiers

229:23 who came back with hearing loss and/or

229:24 tinnitus, I am not sure how consistently they

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 76 of 305
229:25 used the earplugs. I am ‐‐ I am a hundred

230:01 percent certain that my ex‐husband used them

230:02 with ‐‐ used them all the time.

230:03 Q. Okay. And he put them in

230:04 himself; correct?

230:05 A. Yes.

230:06 Q. Did he put them in as you trained

230:07 him to do?

230:08 A. Yes.

230:09 Q. And he does not have the flanges

230:10 folded back, the opposing flanges folded back;

230:11 true?230:12 A. Correct.

230:13 ‐ 230:16 Battler, Leanne 2020‐09‐10

230:13 Q. Are you familiar with the Re: [230:13 to 230:16]

230:14 Albuquerque studies, also known as

the Blast Def Obj foundation (602

230:15 Overpressure Studies?230:16 A. No.

230:20 ‐ 230:23 Battler, Leanne 2020‐09‐10

230:20 MR. MONSOUR: Okay. If you can

230:21 pull up LC‐026. We'll call this Exhibit 24.

230:22 Are we on Exhibit 24, Madam Court

230:23 Reporter?

231:02 ‐ 231:19 Battler, Leanne 2020‐09‐10

231:02 Q. Okay. Let's pull this up.

231:03 This is from the GAO. Is that 

231:04 the General Accounting Office, or Government

231:05 Accountability Office? Do you see that?

231:06 A. Yes. GAO.231:07 Q. It says: Report to congressional

231:08 committees, hearing loss prevention, from

231:09 January 2011.

231:10 Do you see that?231:11 A. Yes.

231:12 Q. Have you ever seen this before?

231:13 A. Yes.

231:14 Q. In what context did you see it?

231:15 A. The GAO committee came to Fort

231:16 Carson to learn about my program.

231:17 Q. Okay. If you'll ‐‐ If we can go

231:18 to page twenty‐five, and look at the footnote

231:19 at the bottom of the page.

231:22 ‐ 233:24 Battler, Leanne 2020‐09‐10

231:22 Q. Have you ever seen this footnote Re: [233:22 to 234:11] 

231:23 before? Pltf Obj 04. 702, 11.

231:24 A. I saw it two days ago for the Foundation, 12. Hearsay

231:25 first time.232:01 Q. Okay. So it came out in 2011,

232:02 and you just saw it for the first time two days

232:03 ago?232:04 A. I never read the footnote before.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 77 of 305
232:05 Q. Okay. And how did you come to

232:06 see this two days ago?

232:07 A. Major Wald told me to read it.

232:08 Q. Okay. Well, let's go through232:09 what it says.

232:10 A. Uh‐huh.

232:11 Q. Footnote 27, and this is ‐‐ This

232:12 is involving the study that you were talking

232:13 about earlier in your deposition; true?

232:14 A. Yes.

232:15 Q. And Mr. Nomellini asked you about

232:16 it, and then I asked you a few questions about

232:17 it; right?

232:18 A. Yes.

232:19 Q. And it says: Cleveland, Leanne,

232:20 Captain, quote, Fort Carson: An Army Hearing

232:21 Program Success Story. Army Department Medical

232:22 Journal, April‐June 2009.

232:23 This study describes the effect

232:24 of the addition of a second audiologist at the

232:25 Army base in Fort Carson, Colorado. While the

233:01 study proves that the addition of a second

233:02 audiologist would increase the number of

233:03 service members receiving testing and training,

233:04 it does not provide sufficient evidence to

233:05 support that an additional audiologist led to

233:06 reduced hearing loss.

233:07 For example, the study interprets

233:08 shifts in the hearing loss and readiness rates

233:09 as being directly attributable to the

233:10 availability of a second audiologist, but the

233:11 study does not consider other factors that

233:12 could have also have had effects, such as

233:13 overseas deployments, changes in equipment, and

233:14 changes in training.

233:15 Did I read that reasonably

233:16 carefully ‐‐ or accurately?

233:17 A. Yes.

233:18 Q. Do you believe that the points

233:19 that are made in this footnote are valid

233:20 points?233:21 A. No.

233:22 Q. Okay. Do you think that whoever

233:23 ‐‐ Do you think that whoever was critical of

233:24 your study is just plain wrong?

234:03 ‐ 235:23 Battler, Leanne 2020‐09‐10

234:03 A. I mean, there was a definite Re: [233:22 to 234:11]

234:04 correlation. Correlation does not imply Pltf Obj 04. 702, 11.

234:05 causation, but there's no ‐‐ there's no other Foundation, 12. Hearsay

234:06 ‐‐ The comment does not explain how other

234:07 factors, such as overseas deployments, changes Re: [234:12 to 235:23]

234:08 in equipment, and changes in training ‐‐ it Pltf Obj 04. 702, 11.

234:09 doesn't define what those were, and how they Foundation

234:10 could have resulted in the changes that I

234:11 documented.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 78 of 305
234:12 Q. Okay. But in all fairness,

234:13 whoever authored footnote 27 notes that your

234:14 article did not consider factors that could

234:15 have ‐‐ could also have had effects, such as

234:16 overseas deployments. Yours did not consider

234:17 overseas deployments; true?

234:18 A. Of course it considered overseas

234:19 deployments.234:20 Q. Okay. Even though this article

234:21 says you're not considering overseas

234:22 deployments?234:23 A. Who said it didn't consider

234:24 overseas deployments?234:25 The Army Hearing Program Success

235:01 Story was documented during a time of overseas

235:02 deployments.235:03 Q. It says here: But the study does

235:04 not consider other factors that could have also

235:05 had effects, such as overseas deployments,

235:06 changes in equipment, and changes in training.

235:07 Do you see that?235:08 A. Yes, I see that.

235:09 Q. Did your article discuss changes

235:10 in training?235:11 A. Yes.235:12 Q. Did it discuss changes in

235:13 equipment?235:14 A. Yes.235:15 Q. And did it discuss overseas

235:16 deployments?235:17 A. Yes.

235:18 Q. So even though the Army's United

235:19 States Government Accountability Office

235:20 evaluated your article and had those

235:21 criticisms, you believe that your article

235:22 discussed those things accurately and fully?

235:23 A. Yes.

235:24 ‐ 236:01 Battler, Leanne 2020‐09‐10

235:24 Q. Okay. And you didn't see this 

235:25 footnote until two days ago; right?236:01 A. Right.

237:18 ‐ 238:02 Battler, Leanne 2020‐09‐10

237:18 Q. Okay. Did you talk with anyone Re: [237:18 to 237:25]

237:19 about this deposition other than the Major who Pltf Obj 01. 402, 15. 403

237:20 is here with us today? (Prejudicial vs Probative)

237:21 A. I told my ex‐husband: Oh, my

237:22 God, the email about the stun mullet that you Re: [238:01 to 238:02]

237:23 sent to Doug Ohlin was included in the Pltf Obj 01. 402

237:24 paperwork. So I did tell him that.

237:25 Q. Okay.238:01 A. He thought that was pretty

238:02 awesome.

238:13 ‐ 239:12 Battler, Leanne 2020‐09‐10

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 79 of 305
238:13 Real quick. It appears ‐‐ We've

238:14 gone through some emails today where you were

238:15 having a back and forth with Brian Myers, with

238:16 Aearo, we saw his email address, you remember

238:17 that?238:18 A. Uh‐huh.

238:19 Q. Correct?238:20 A. Yes.238:21 Q. And in those back and forths, you

238:22 were talking about some of the pros and cons of

238:23 the CAEv2; true?

238:24 A. Yes.

238:25 Q. And I'm categorizing it as a back

239:01 and forth. Do you think that's a fair239:02 categorization?239:03 A. As a quality assurance?

239:04 Q. Yes.239:05 A. Yes.

239:06 Q. Okay. In those back‐and‐forth

239:07 emails with Brian Myers, or anyone else from

239:08 Aearo, did any of them ever share any problems

239:09 that they might have had with the CAEv2 with

239:10 you?239:11 A. No. It was always what can we do

239:12 to help the soldier.

239:13 ‐ 239:15 Battler, Leanne 2020‐09‐10

239:13 Q. Okay. But they never shared any

Re: [239:13 to 239:19]

239:14 of their internally known problems

with the Def Obj improper counte

239:15 plug with you; true statement? (lines 239:13‐19 and 240

should be read to the jur

together with 239:20‐24 

240:4‐7. However, if 239

and 240:4‐7 are excluded

239:13‐19 and 240:10‐13 

be excluded on the samegrounds).

239:18 ‐ 239:19 Battler, Leanne 2020‐09‐10

239:18 Q. Go ahead. You can answer. Re: [239:13 to 239:19]

239:19 A. That's true. Def Obj improper counte

(lines 239:13‐19 and 240

should be read to the jur

together with 239:20‐24 

240:4‐7. However, if 239

and 240:4‐7 are excluded

239:13‐19 and 240:10‐13 

be excluded on the samegrounds).

239:20 ‐ 239:24 Battler, Leanne 2020‐09‐10

239:20 Q. Okay. If there had been some Re: [239:20 to 240:09]

239:21 problems with the plug that they knew about, Pltf Obj 11. Foundation, 17.

239:22 the back and forth would have been an Objection Nonresponsive, 02.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 80 of 305
239:23 opportunity for them to disclose that 602, 22. MIL G7 lay opinion on

239:24 information to you; true? efficacy of CAEv2

240:05 ‐ 240:07 Battler, Leanne 2020‐09‐10

240:05 A. I think if there was a problem Re: [239:20 to 240:09]

240:06 with the plug, I would have found it on my own, Pltf Obj 11. Foundation, 17.

240:07 regardless of them telling me or not. Objection Nonresponsive, 02.

602, 22. MIL G7 lay opinion onefficacy of CAEv2

240:10 ‐ 240:13 Battler, Leanne 2020‐09‐10

240:10 My question is: They never Re: [240:10 to 240:13]

240:11 shared any of the problems that

they knew about Def Obj improper counte

240:12 the plug with you; true? (lines 239:13‐19 and 240

240:13 A. That is true. should be read to the jur

together with 239:20‐24 

240:4‐7. However, if 239

and 240:4‐7 are excluded

239:13‐19 and 240:10‐13 

be excluded on the samegrounds).

241:15 ‐ 242:08 Battler, Leanne 2020‐09‐10

241:15 Q. Good afternoon, Lieutenant Re: [241:21 to 241:25]

241:16 Colonel Battler. You were shown a GAO study, Pltf Obj 03. 611; Leading, 04.

241:17 Exhibit 24, that included some supposed 702, 11. Foundation

241:18 criticisms of your report on the success story

241:19 article that you wrote; correct? Re: [242:01 to 242:08]

241:20 A. Correct. Pltf Obj 11. Foundation, 03.

241:21 Q. And, in fact, that GAO had 611; Leading

241:22 various criticisms that certain things weren't

241:23 in your report. But, in fact, every one of

241:24 those things was in your report; correct?

241:25 A. Correct.242:01 Q. And you would agree with me that

242:02 even in the case of the government ‐‐ the

242:03 government reports, and the case of this GAO

242:04 report that criticized your report, sometimes

242:05 the government just gets it wrong; right?

242:06 A. Shockingly.242:07 Q. So you would agree with that?

242:08 A. Yes, I agree.

242:15 ‐ 243:05 Battler, Leanne 2020‐09‐10

242:15 Q. You were asked questions by Mr. Re: [242:15 to 242:24]

242:16 Monsour if there was a problem with the Combat Pltf Obj 11. Foundation

242:17 Arms Version 2, would that have been an

242:18 opportunity for Aearo to tell you, he was Re: [242:15 to 242:25]

242:19 referring to the back and forth of the emails. Pltf Obj 04. 702

242:20 And your testimony was: If there was a problem

242:21 with the plug, I would have found it on my own.

242:22 What did you mean by that?

242:23 A. The soldiers ‐‐ The soldiers

242:24 would have told me. They would have told me.

242:25 Q. You were asked some questions

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 81 of 305
243:01 about your ex‐husband and the picture that you

243:02 took of an earplug in his ear contacting his

243:03 tragus.243:04 Do you recall that?

243:05 A. Yes.

243:20 ‐ 244:02 Battler, Leanne 2020‐09‐10

243:20 Q. I'll just limit it to your Re: [243:20 to 244:02]

243:21 experience. In your experience, why does it ‐‐ Pltf Obj 611 leading, 

243:22 with respect to your husband, whose plug vague/confusing and compound

243:23 contacted his tragus; right? questions; speculation;

243:24 A. Uh‐huh. 701/702; 403

243:25 Q. With respect to your ex‐husband,

244:01 why didn't the plug ‐‐ the outer flange of the

244:02 plug contacting his tragus cause a problem?

244:07 ‐ 244:20 Battler, Leanne 2020‐09‐10

244:07 A. Because the ‐‐ The internal Re: [244:07 to 244:20] 

244:08 portion in his ear was ‐‐ was seated. Pltf Obj Speculation; 701/702;

244:09 Q. And your husband used that plug 403; 802

244:10 and did not sustain any hearing loss or

244:11 tinnitus; correct?244:12 A. Correct.244:13 Q. Okay. You were asked some

244:14 questions about the four surveys you did,

244:15 Exhibits 15 and 18, do you recall that?

244:16 A. Yes.

244:17 Q. And Exhibit 15, the first

244:18 individual, said there was nothing that he

244:19 would change about the plug; right?

244:20 A. Yes.

245:08 ‐ 245:25 Battler, Leanne 2020‐09‐10

245:08 Q. So one individual's response was Re: [245:08 to 245:25] 

245:09 that they wouldn't change anything; right? Pltf Obj 802; 402/403;

245:10 A. Right. 701/702; conjecture;

245:11 Q. One individual's response was speculation

245:12 they were effective when they were worn;

245:13 correct?245:14 A. Yes. Is that the one who lost

245:15 them?245:16 Q. And then there were two

245:17 individuals who indicated that they were not

245:18 comfortable; right?245:19 A. Right.245:20 Q. Now, for individuals who

245:21 indicated that they were not comfortable, you

245:22 indicated that that would either be because

245:23 they didn't like the material or because of the

245:24 diameter. It's not clear; right?

245:25 A. Correct.

246:01 ‐ 246:07 Battler, Leanne 2020‐09‐10

246:01 Q. Is that correct? Re: [246:01 to 246:07] 

246:02 A. Yes. Correct. Pltf Obj 802; 402/403;

246:03 Q. And so if the diameter was too 602/701/702; incomplete

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 82 of 305
246:04 big, for those individuals, of the plug, they hypothetical;

246:05 should not have been wearing the plug in the improper/incomplete

246:06 first instance; correct? designation; speculation; 611246:07 A. Correct. leading; conjecture

246:19 ‐ 247:13 Battler, Leanne 2020‐09‐10

246:19 Q. Well, let me ask you this: If Re: [246:19 to 247:13] 

246:20 the plugs were so big that they were Pltf Obj 402/403; 602/701/702;

246:21 uncomfortable, those soldiers should not have improper hypothetical;

246:22 been fitted with those earplugs; correct? speculation; conjecture; 406;

246:23 A. In my experience, if ‐‐ Right.

246:24 If we couldn't get the third flange flush with

246:25 the opening of the ear canal, or if it was too

247:01 uncomfortable to reach that point, then we

247:02 would not fit them with ‐‐ we would recommend

247:03 they not use that size medium Combat Arms

247:04 earplug.247:05 Q. Okay. And if it was because the

247:06 ‐‐ If they were uncomfortable because of the

247:07 material, the individuals had other options to

247:08 choose from, in terms of material; right?

247:09 A. Right.

247:10 Q. And we talked about the SureFire

247:11 plug, it had a more comfortable material, but

247:12 your testimony was it did not provide the same

247:13 protection as the Combat Arms earplug; right?

247:16 ‐ 247:25 Battler, Leanne 2020‐09‐10

247:16 A. The SureFire earplug feels like a Re: [247:16 to 247:25]

247:17 gummy bear in your ear. It's awesome. Pltf Obj Nonresponsive 

247:18 Q. But you testified earlier you answers; 611 leading

247:19 were concerned about statements made about questions; 701/702; 402/403;

247:20 SureFire because, in fact, SureFire did not speculatuion; conjecture

247:21 provide the same protection for hearing as

247:22 Combat Arms; correct?

247:23 A. My experience was that it did not

247:24 ‐‐ that more hearing loss was incurred when

247:25 soldiers wore the SureFire earplug.

248:04 ‐ 248:21 Battler, Leanne 2020‐09‐10

248:04 Q. And that's based on your personal Re: [248:04 to 248:21] 

248:05 experience; correct? Pltf Obj 611 leading, vague,

248:06 A. Yes, sir. asked/answered; 701/702; 802;

248:07 Q. And so looking ‐‐ looking back at 402/403; conjecture; calls for

248:08 Exhibits 15 to 18, when I was asking you speculation

248:09 questions, you called the Combat Arms Version 2

248:10 a great product; correct?

248:11 A. Yes.248:12 Q. And did anything about the survey

248:13 responses you received from the soldiers, those

248:14 four survey responses, did anything in those

248:15 change your view that the Combat Arms Version 2

248:16 was a great product?

248:17 A. It's a great product if it's the

248:18 right size.248:19 Q. Right. And the Army audiologists

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 83 of 305
248:20 knew that it was not the right size for

248:21 everybody; correct?

248:24 ‐ 249:16 Battler, Leanne 2020‐09‐10

248:24 A. My training ‐‐ My training Re: [248:24 to 249:16]

248:25 included that there's no such thing as one size Pltf Obj Nonresponsive 

249:01 fits all. answers; 611 leading

249:02 Q. You did not ‐‐ You did not need questions; 701/702; 402/403;

249:03 Aearo to tell you, Lieutenant Colonel Battler, speculatuion; conjecture; 802

249:04 that the Combat Arms Version 2 did not fit

249:05 everybody; correct?249:06 A. That's correct.

249:07 Q. You knew that based on your own

249:08 experience?249:09 A. Correct.

249:10 Q. Mr. Monsour asked you some

249:11 questions about needing to constantly reassert

249:12 ‐‐ reinsert earplugs. But your experience was

249:13 that you did not need to reinsert the Combat

249:14 Arms Version 2 more than any other earplugs;

249:15 correct?249:16 A. My experience, correct.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 84 of 305
Pltf Objections 3M Objections Rulings

6:19 - 6:23 Burrows, Sarah 2020-09-24

6:19 obvious question. Tell me your full

6:20 name.

6:21 A. Sarah Burrows.

6:22 Q. Okay. Do you have a middle

6:23 name?

7:01 - 7:01 Burrows, Sarah 2020-09-24

7:01 A. Yes. Sarah Elizabeth Burrows.

12:13 - 12:19 Burrows, Sarah 2020-09-24

12:13 Q. Okay. All right. And just sort

12:14 of jumping ahead to an obvious question,

12:15 when Mr. Keefer was deposed in I think

12:16 July, he identified you as his current

12:17 girlfriend. Are you still involved with

12:18 Mr. Keefer romantically?

12:19 A. Yes.

14:13 - 14:18 Burrows, Sarah 2020-09-24

14:13 Q. Okay. Do you know -- were

14:14 you -- and I'll get to more specifics

14:15 later. When did you -- I guess for lack

14:16 of a better word, when would you say you

14:17 first became his girlfriend?

14:18 A. August of 2018.

18:08 - 18:16 Burrows, Sarah 2020-09-24

18:08 Q. Okay. All right. Let me get a

18:09 little bit of background about you so I

18:10 know -- sort of know more of who I'm

18:11 talking to here. What is your date of

18:12 birth?

18:13 A. 11/12/92.

18:14 Q. Okay. And I'm bad at math. So,

18:15 that would make you how old?

18:16 A. Twenty-seven.

18:19 - 18:23 Burrows, Sarah 2020-09-24

18:19 Q. Okay. Where do you work?

18:20 A. I work for SWODA Aging Services.

18:21 Q. Okay. What is that, roughly,

18:22 basically?

18:23 A. I'm an ADvantage case manager.

19:01 - 19:04 Burrows, Sarah 2020-09-24

19:01 The ADvantage program is for elderly

19:02 people or disabled that meet nursing

19:03 facility level of care but have the

19:04 desire and ability to stay home.

21:13 - 21:23 Burrows, Sarah 2020-09-24

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 85 of 305
21:13 Q. Okay. And what's the highest

21:14 level of education you completed?

21:15 A. Bachelor's degree.

21:16 Q. Okay. Where did you attend?

21:17 A. Southwestern Oklahoma State

21:18 University.

21:19 Q. Okay.

21:20 A. And I am currently enrolled in

21:21 a -- in school now.

21:22 Q. Okay. Where are you enrolled

21:23 now?

22:01 - 22:02 Burrows, Sarah 2020-09-24

22:01 A. Northwestern Oklahoma State

22:02 University.

22:22 - 22:23 Burrows, Sarah 2020-09-24

22:22 Q. Okay. All right. Tell me when

22:23 -- you mentioned -- I think you said

23:01 - 23:14 Burrows, Sarah 2020-09-24

23:01 August of 2018 is when you first started

23:02 dating Mr. Keefer? Is that a fair

23:03 statement?

23:04 A. Yeah.

23:05 Q. When -- when did you first come

23:06 to know Mr. Keefer at any point in your

23:07 life, I mean?

23:08 A. It was February of that year.

23:09 Q. Okay. And -- February 2018?

23:10 A. Yes.

23:11 Q. Okay. And how did you meet him?

23:12 A. His son and my son were in the

23:13 same class in kindergarten, and they were

23:14 best friends.

23:15 - 23:18 Burrows, Sarah 2020-09-24

23:15 Q. Wow. Okay. And I guess

23:16 let's -- just to be so we're clear, his

23:17 son is named what?

23:18 A. Ethan Keefer.

24:10 - 24:23 Burrows, Sarah 2020-09-24

24:10 Q. All right. So you met him in Re: [24:10 to 25:20]

24:11 like February 2018 through your son's Pltf Obj compound, vague, 402

24:12 sort of a -- I'd call it a play date, but

24:13 8-year-olds don't call it play dates

24:14 anymore. Is that the idea basically?

24:15 A. Yeah.

24:16 Q. All right. And when did you --

24:17 and how often did you see him between

24:18 February of 2018 and, say, August of 2018

24:19 when you started dating or -- or however

OBJECTION 

WITHDRAWN, 

3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 86 of 305
24:20 you want to describe it?

24:21 A. Really not much. Ethan would

24:22 stay the night with us occasionally. And

24:23 he would -- I would see him when he would

25:01 - 25:20 Burrows, Sarah 2020-09-24

25:01 pick him up or drop him off. And that Re: [24:10 to 25:20]

25:02 was about it. And at school activities. Pltf Obj compound, vague, 402

25:03 Q. Okay. And how did you come to

25:04 start dating him? Was it a mutual setup,

25:05 or did you -- these are awkward

25:06 questions, but, I mean, I gather it

25:07 wasn't like a Match.com because you

25:08 already knew him, so that's what I was

25:09 trying to get to, so.

25:10 A. No. It -- I mean, it started

25:11 with our kids. And I was going through

25:12 things. My ex-husband was abusive in

25:13 many ways. Lewis had gotten a divorce,

25:14 not like -- he was the only person I knew

25:15 that had gotten a divorce with kids. And

25:16 we were friends. Like, we would talk

25:17 when we saw each other. And, like, he

25:18 would occasionally text me about stuff.

25:19 And so, like, I would say we were

25:20 friends.

26:01 - 26:23 Burrows, Sarah 2020-09-24

26:01 Q. How did you start dating? How

26:02 did it go from, you know --

26:03 A. Oh, okay.

26:04 Q. -- like --

26:05 A. So --

26:06 Q. Yeah.

26:07 A. Sorry. I was talking to him

26:08 about, like, how I decided to get

26:09 divorced and was trying to figure out how

26:10 to do it. And it just went from there.

26:11 Q. Okay. All right. Have you ever

26:12 lived with him, like either in his house

26:13 or your house?

26:14 A. No.

26:15 Q. Have you taken vacations

26:16 together?

26:17 A. No.

26:18 Q. I know the word -- "fianci" is a

26:19 weird word in -- at a certain age. But

26:20 do you have plans to marry? Are you

26:21 engaged? Is there any discussion of

26:22 where this is going to go that has been

26:23 agreed upon, at least?

27:01 - 27:07 Burrows, Sarah 2020-09-24

OBJECTION 

WITHDRAWN [25:01-

25:10], 3/12/2021

OBJECTION 

SUSTAINED [25:11-

25:15 (ending at "with 

kids")]

OBJECTION 

WITHDRAWN [25:15 

(beginning at "And")-

25:20

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 87 of 305
27:01 A. I mean, we both agreed like

27:02 we're together. We're not going

27:03 anywhere.

27:04 Q. Okay. But there's not like a

27:05 wedding date planned or anything of that

27:06 nature?

27:07 A. No.

27:08 - 27:23 Burrows, Sarah 2020-09-24

27:08 Q. All right. Okay. I want to ask Re: [27:08 to 28:04]

27:09 some questions about what you sort of Pltf Obj OBJ beginning at 27:8

27:10 know about Mr. Keefer's past and just 402, 403

27:11 sort of find that out, knowing that you

27:12 weren't around for this. But, for

27:13 example, how many times has he been

27:14 married?

27:15 A. Twice.

27:16 Q. Okay. Do you remember -- have

27:17 you -- do you know his wives' names?

27:18 A. Prisha and Emily.

27:19 Q. Have you ever met Prisha?

27:20 A. No.

27:21 Q. Okay. Do you have any

27:22 understanding as to why that marriage

27:23 ended in divorce?

28:01 - 28:04 Burrows, Sarah 2020-09-24

28:01 A. Yes. Re: [27:08 to 28:04]

28:02 Q. Okay. What were you told about Pltf Obj OBJ beginning at 27:8

28:03 that? 402, 403

28:04 A. She cheated on him.

28:11 - 28:23 Burrows, Sarah 2020-09-24

28:11 Q. Okay. When -- have you met Re: [28:11 to 29:08]

28:12 Emily Keefer? Pltf Obj 402, vague

28:13 A. Yes. I actually knew her first.

28:14 Q. Okay. Knew her before you knew

28:15 Lewis Keefer?

28:16 A. Yes.

28:17 Q. Okay. How did you come to know

28:18 Emily Keefer?

28:19 A. Our kids.

28:20 Q. Okay. Okay. So because her son

28:21 was his son and therefore they were best

28:22 friends, I guess. Have you interacted

28:23 with Emily Keefer since you started

29:01 - 29:08 Burrows, Sarah 2020-09-24

29:01 dating Lewis Keefer? Re: [28:11 to 29:08]

29:02 A. Once. Pltf Obj 402, vague

29:03 Q. Okay. Just in what context?

29:04 A. She had brought the kids by the

29:05 house to get a few things, and I didn't

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 88 of 305
29:06 realize she was there. And I was walking

29:07 through the house, and she walked out of

29:08 the bathroom as I was walking by.

29:12 - 29:21 Burrows, Sarah 2020-09-24

29:12 Q. Okay. Do you have any Re: [29:12 to 29:21]

29:13 understanding as to why their marriage Pltf Obj 402, 403, 602,

29:14 ended in divorce? leading

29:15 A. Yes.

29:16 Q. Okay. And what's your

29:17 understanding about that?

29:18 A. She cheated.

29:19 Q. Okay. Is that something that --

29:20 Mr. Keefer told you she cheated?

29:21 A. Yes.

30:03 - 30:23 Burrows, Sarah 2020-09-24

30:03 Q. All right. What -- what do you

30:04 know about -- and this is a very broad

30:05 question -- about Mr. Keefer's military

30:06 service, just in general?

30:07 A. I really don't know much at all.

30:08 Q. Okay.

30:09 A. Like, I know he served. I know

30:10 he was stationed in Hawaii and I believe

30:11 Georgia.

30:12 Q. Okay.

30:13 A. That's about it.

30:14 Q. You know --

30:15 A. He was a medic.

30:16 Q. Okay. That was my next

30:17 question. You know what he did in the

30:18 military?

30:19 A. Yes.

30:20 Q. Medic, you said?

30:21 A. Yes.

30:22 Q. Okay. And do you know if it was

30:23 Army versus Navy versus Air Force? I

31:01 - 31:05 Burrows, Sarah 2020-09-24

31:01 mean --

31:02 A. Army.

31:03 Q. Okay. And do you know if he was

31:04 ever deployed overseas?

31:05 A. Yes.

31:06 - 31:08 Burrows, Sarah 2020-09-24

31:06 Q. Do you know where he was

31:07 deployed?

31:08 A. No.

31:12 - 31:16 Burrows, Sarah 2020-09-24

31:12 Q. All right. Do you know anything

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31:13 about noise exposures that he may have

31:14 encountered while serving in the

31:15 military?

31:16 A. No.

32:06 - 32:09 Burrows, Sarah 2020-09-24

32:06 Q. I'll -- I'll ask the question

32:07 again to make sure we're on the same

32:08 page. Do you know if he was around an

32:09 IED that exploded ever?

32:11 - 32:11 Burrows, Sarah 2020-09-24

32:11 A. No.

32:17 - 32:18 Burrows, Sarah 2020-09-24

32:17 Do you know if he was ever

32:18 around when a mortar exploded?

32:20 - 32:20 Burrows, Sarah 2020-09-24

32:20 A. I don't know.

32:22 - 33:01 Burrows, Sarah 2020-09-24

32:22 Q. It's okay. Do you know if you

32:23 were -- if he was exposed to helicopter

33:01 noise while in the military?

33:03 - 33:03 Burrows, Sarah 2020-09-24

33:03 A. I don't know. Re: [33:03 to 33:05]

Pltf Obj 402, 403, 602

33:04 - 33:05 Burrows, Sarah 2020-09-24

33:04 Q. All right. Do you have any Re: [33:03 to 33:05]

33:05 knowledge of why he left the military? Pltf Obj 402, 403, 602

33:07 - 33:09 Burrows, Sarah 2020-09-24

33:07 A. I do not. Re: [33:07 to 33:09]

33:08 Q. And do you -- did he ever tell Pltf Obj 402, 403, 602

33:09 you anything about why he got out?

33:11 - 33:14 Burrows, Sarah 2020-09-24

33:11 A. No. Re: [33:11 to 33:14]

33:12 Q. All right. Did -- do you know Pltf Obj 402, 403, 602

33:13 whether or not he was ever subject to any

33:14 discipline while he was in the military?

33:16 - 33:19 Burrows, Sarah 2020-09-24

33:16 A. I do not. Re: [33:16 to 33:19]

33:17 Q. Did he ever discuss any -- Pltf Obj 402, 403, 602

33:18 whether he ever lost rank while in the

33:19 military?

33:21 - 33:21 Burrows, Sarah 2020-09-24

33:21 A. No. Re: [33:21 to 33:21]

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Pltf Obj 402, 403, 602

34:05 - 34:14 Burrows, Sarah 2020-09-24

34:05 Q. Okay. Do you have any knowledge Re: [34:05 to 34:14]

34:06 of hearing protection that Mr. Keefer -- Pltf Obj 602, MIL C4 -

34:07 and I'm going to define this in -- in non-military noise exposure

34:08 time periods, so listen to my question

34:09 carefully so we're -- we're clear about

34:10 this.

34:11 Do you have any knowledge of

34:12 whether Mr. Keefer used hearing

34:13 protection before he entered the

34:14 military?

34:16 - 34:20 Burrows, Sarah 2020-09-24

34:16 A. I do not.

34:17 Q. Okay. Do you have any knowledge

34:18 or has he ever discussed with you his use

34:19 of hearing protection while he was in the

34:20 military?

34:22 - 34:22 Burrows, Sarah 2020-09-24

34:22 A. No.

34:23 - 34:23 Burrows, Sarah 2020-09-24

34:23 Q. Okay. Do you know the hearing

35:01 - 35:19 Burrows, Sarah 2020-09-24

35:01 protection device that is the subject of

35:02 this lawsuit? Do you understand what it

35:03 is?

35:04 A. Yes.

35:05 Q. Okay. What is it, to your

35:06 knowledge?

35:07 A. The 3M earplug.

35:08 Q. Okay. Does the name Combat Arms

35:09 mean anything to you?

35:10 A. No.

35:11 Q. Okay. I'll call them the 3M

35:12 earplugs since that's what you called

35:13 them. Did Mr. Keefer ever describe the

35:14 3M hearing -- did he ever describe the 3M

35:15 hearing plugs? I've got to say this

35:16 again.

35:17 Did he ever describe the 3M

35:18 earplugs to you?

35:19 A. No.

35:20 - 35:22 Burrows, Sarah 2020-09-24

35:20 Q. Okay. Do you know if they were

35:21 double-sided, one-sided, yellow, purple,

35:22 pink, anything?

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36:01 - 36:01 Burrows, Sarah 2020-09-24

36:01 A. No.

36:18 - 36:23 Burrows, Sarah 2020-09-24

36:18 Q. All right. Between -- do you Re: [36:18 to 37:03]

36:19 know when Mr. Keefer got out of the Pltf Obj MIL C4 - non-military

36:20 military, like what year? noise exposure

36:21 A. 2015.

36:22 Q. Okay. Between 2015 and the time

36:23 you started dating Mr. Keefer in August

37:01 - 37:03 Burrows, Sarah 2020-09-24

37:01 of 2018, do you know whether he wore any Re: [36:18 to 37:03]

37:02 hearing protection devices, from what he Pltf Obj MIL C4 - non-military

37:03 has told you? noise exposure

37:05 - 37:22 Burrows, Sarah 2020-09-24

37:05 A. No. I don't know.

37:06 Q. All right. Let me ask you about

37:07 his hearing in general. And again, I'm

37:08 going to use time periods in my

37:09 questions. Did Mr. Keefer ever discuss

37:10 for you the condition of his hearing,

37:11 what -- how well he heard prior to

37:12 joining the military?

37:13 A. No.

37:14 Q. Did he ever discuss with you his

37:15 hearing issues, if any, during the time

37:16 he was in the military?

37:17 A. No.

37:18 Q. And between the time that he

37:19 left the military in 2015 and August of

37:20 2018, did he ever discuss with you any

37:21 issues he was having with hearing?

37:22 A. No.

37:23 - 38:09 Burrows, Sarah 2020-09-24

37:23 Q. Are you familiar with tinnitus?

38:01 Or sometimes called "tin-nigh-tus." It

38:02 depends on where you're from and how you

38:03 read it. Do you know what I'm talking

38:04 about?

38:05 A. Do I know what it is? Yes.

38:06 Q. Okay. And how would you

38:07 describe it, just to make sure we're on

38:08 the same page?

38:09 A. A ringing in the ears.

38:10 - 38:17 Burrows, Sarah 2020-09-24

38:10 Q. Okay. Do you know -- did Mr.

38:11 Keefer ever tell you whether he suffered

38:12 from tinnitus before he joined the

38:13 military?

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38:14 A. He did not say anything.

38:15 Q. Did he ever tell you when he --

38:16 whether he suffered from tinnitus during

38:17 the time he was in the military?

38:19 - 38:19 Burrows, Sarah 2020-09-24

38:19 A. He has not told me.

38:21 - 38:23 Burrows, Sarah 2020-09-24

38:21 Q. And between the time he left the Re: [38:21 to 39:03]

38:22 military in 2018 -- '15 and the time you Pltf Obj vague

38:23 started dating in August of 2018, did he

39:01 - 39:03 Burrows, Sarah 2020-09-24

39:01 -- did you ever -- did he ever tell you Re: [38:21 to 39:03]

39:02 about suffering from tinnitus during that Pltf Obj vague

39:03 period of time?

39:05 - 39:05 Burrows, Sarah 2020-09-24

39:05 A. No, he has not.

39:06 - 39:11 Burrows, Sarah 2020-09-24

39:06 Q. All right. Since you've been

39:07 dating Mr. Keefer in August of 2018, has

39:08 he complained about hearing issues to

39:09 you?

39:10 A. He has said that he has

39:11 difficulty hearing.

39:12 - 39:20 Burrows, Sarah 2020-09-24

39:12 Q. Has he -- did he ever tell you

39:13 when he first noticed having difficulty

39:14 hearing in his life?

39:15 A. No.

39:16 Q. Since you've been dating Mr.

39:17 Keefer in August of 2018, has he

39:18 complained about tinnitus or ringing in

39:19 his ears?

39:20 A. No, he hasn't complained.

40:05 - 40:09 Burrows, Sarah 2020-09-24

40:05 Q. With respect to the tinnitus

40:06 issue, ringing of the ears, did he ever

40:07 tell you when he first noticed having

40:08 tinnitus?

40:09 A. No.

40:17 - 40:23 Burrows, Sarah 2020-09-24

40:17 With respect to the hearing

40:18 issues alone, how often has Mr. Keefer

40:19 complained to you about having difficulty

40:20 hearing since you first started dating

40:21 him about two years ago?

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40:22 A. I know it affects him daily. I

40:23 don't know how much he really complains

41:01 - 41:01 Burrows, Sarah 2020-09-24

41:01 about it, but I've noticed it.

41:22 - 41:23 Burrows, Sarah 2020-09-24

41:22 Q. Okay. Did you have enough Re: [41:22 to 43:07]

41:23 interaction with Mr. Keefer between, say, Pltf Obj Object to

(42:10-42:13) 602; 702; 611;

leading;

42:01 - 42:14 Burrows, Sarah 2020-09-24

42:01 February and August of 2018 to understand Re: [41:22 to 43:07]

42:02 whether he had hearing issues during that Pltf Obj Object to

42:03 time? (42:10-42:13) 602; 702; 611;

42:04 A. I would say yes. leading;

42:05 Q. Have you noticed it getting

42:06 worse?

42:07 A. I mean, I'm around him more now

42:08 than I was in February of that year. So

42:09 I notice it more now, but I don't know.

42:10 Q. What about today versus two

42:11 years ago when you first started dating

42:12 him? Have you noticed it getting worse

42:13 in that period of time?

42:14 A. I would say I notice it more.

42:15 - 42:23 Burrows, Sarah 2020-09-24

42:15 Q. Okay. Do you know if he has Re: [41:22 to 43:07]

42:16 received any medical treatment for it, Pltf Obj Object to

42:17 meaning gone to an ENT or an audiologist (42:10-42:13) 602; 702; 611;

42:18 or something, since you've been seeing leading;

42:19 him?

42:20 A. I'm not aware.

42:21 Q. Okay. Does he have a hearing

42:22 aid?

42:23 A. No.

43:01 - 43:07 Burrows, Sarah 2020-09-24

43:01 Q. Have you discussed with him Re: [41:22 to 43:07]

43:02 whether maybe he should go get a hearing Pltf Obj Object to

43:03 aid? (42:10-42:13) 602; 702; 611;

43:04 A. No. leading;

43:05 Q. Okay. Have you ever asked him

43:06 why he hasn't tried to get a hearing aid?

43:07 A. No.

45:01 - 45:13 Burrows, Sarah 2020-09-24

45:01 Q. And I asked you about tinnitus, Re: [45:01 to 45:19]

45:02 and you said you're aware he had it, but Pltf Obj Vague, compound;

45:03 he doesn't complain about it. Is that a 611-leading (45:17-45:18)

45:04 fair statement?

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45:05 A. Yes.

45:06 Q. Okay. How often did he mention

45:07 -- has he mentioned having tinnitus to

45:08 you over the last couple of years?

45:09 A. Not very. He doesn't talk much.

45:10 Q. Okay. Do you know if he has

45:11 ever gone to see a doctor about his

45:12 tinnitus?

45:13 A. I'm not aware.

45:14 - 45:16 Burrows, Sarah 2020-09-24

45:14 Q. And has he mentioned any impact Re: [45:01 to 45:19]

45:15 that tinnitus has had on his life? Pltf Obj Vague, compound;

45:16 A. I don't know. 611-leading (45:17-45:18)

45:17 - 45:19 Burrows, Sarah 2020-09-24

45:17 Q. You can't recall any time he Re: [45:01 to 45:19]

45:18 has? Is that a fair statement? Pltf Obj Vague, compound;

45:19 A. Yeah. I can't recall. 611-leading (45:17-45:18)

51:05 - 51:05 Burrows, Sarah 2020-09-24

51:05 Q. Okay. What about like 

sporting

51:06 - 51:20 Burrows, Sarah 2020-09-24

51:06 events? Have you gone to sporting events Re: [51:06 to 51:20]

51:07 with him? Pltf Obj MIL C4 - non-military

51:08 A. We have gone to like our high noise exposure

51:09 school football games. But when we went

51:10 there, he was working and he was away

51:11 from the crowd.

51:12 Q. Okay. What was his -- how was

51:13 he working?

51:14 A. He was working as EMS and as a

51:15 police officer.

51:16 Q. Okay. And so you didn't see him

51:17 wearing hearing protection at that point

51:18 because he wasn't in the stands? Is that

51:19 what you're saying, basically?

51:20 A. Yes. There was no need.

52:06 - 52:11 Burrows, Sarah 2020-09-24

52:06 Q. What do you and Mr. Keefer do

52:07 for fun? I mean, what -- what --

52:08 what's -- what do y'all like to do

52:09 together?

52:10 A. We fish, watch TV, hang out with

52:11 our kids.

53:03 - 53:10 Burrows, Sarah 2020-09-24

53:03 Q. What sort of -- how often, from

53:04 your observation, does Mr. Keefer have

53:05 his three children at home with him?

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53:06 A. Typically, every other weekend.

53:07 Q. Okay. Have you observed

53:08 interactions between Mr. Keefer and his

53:09 children?

53:10 A. Yes.

53:16 - 53:19 Burrows, Sarah 2020-09-24

53:16 Q. All right. Is he able to engage Re: [53:16 to 53:19]

53:17 in the activities with his children he Pltf Obj Vague

53:18 normally would?

53:19 A. Like what?

53:21 - 53:23 Burrows, Sarah 2020-09-24

53:21 Q. Well, has he ever told you, you Re: [53:21 to 54:09]

53:22 know, "I would like to do this particular Pltf Obj Vague

53:23 thing with my kids, but I can't because I

54:01 - 54:09 Burrows, Sarah 2020-09-24

54:01 can't hear"? Has he ever said that to Re: [53:21 to 54:09]

54:02 you? Pltf Obj Vague

54:03 A. No.

54:04 Q. What sort of things does he do

54:05 with his kids?

54:06 A. They go fishing. They play

54:07 catch. They go hiking.

54:08 Q. Okay.

54:09 A. Pretty much all I can think of.

54:14 - 54:20 Burrows, Sarah 2020-09-24

54:14 Q. Does he -- have you seen him Re: [54:14 to 55:08]

54:15 wear the hearing protection devices Pltf Obj MIL C4 - non-military

54:16 around the children? noise exposure

54:17 A. Only at the monster truck stuff.

54:18 Q. Okay. And how many of those

54:19 have y'all been to?

54:20 A. Two.

54:21 - 54:23 Burrows, Sarah 2020-09-24

54:21 Q. What are -- and I know we Re: [54:14 to 55:08]

54:22 discussed some of these already a little Pltf Obj MIL C4 - non-military

54:23 bit, but what are Mr. Keefer's hobbies noise exposure

54:23 - 54:23 Burrows, Sarah 2020-09-24

54:23 bit, but what are Mr. Keefer's hobbies Re: [54:14 to 55:08]

Pltf Obj MIL C4 - non-military

noise exposure

55:01 - 55:08 Burrows, Sarah 2020-09-24

55:01 that you're aware of? Re: [54:14 to 55:08]

55:02 A. Fishing, golfing. That's about Pltf Obj MIL C4 - non-military

55:03 it. noise exposure

55:04 Q. Okay. You ever golf with him?

55:05 A. Yes.

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55:06 Q. Okay. Did he wear hearing

55:07 protection on the golf course?

55:08 A. No. It was just me and him.

55:16 - 56:04 Burrows, Sarah 2020-09-24

55:16 Q. Do you know if he owns a gun? Re: [55:16 to 56:04]

55:17 A. He does. Pltf Obj MIL C4 - non-military

55:18 Q. Okay. Have you ever -- has he noise exposure

55:19 ever discussed whether he fires the gun

55:20 or has fired the gun?

55:21 A. We have not discussed it.

55:22 Q. Okay. Have you ever seen him

55:23 fire the gun?

56:01 A. No.

56:02 Q. Do you know what type of gun it

56:03 is?

56:04 A. I believe he has a Sig.

56:08 - 56:13 Burrows, Sarah 2020-09-24

56:08 Q. Okay. What is Mr. Keefer's

56:09 current job?

56:10 A. He's a police officer.

56:11 Q. Okay. And is it the City or the

56:12 County he's a police officer for?

56:13 A. City.

56:22 - 57:08 Burrows, Sarah 2020-09-24

56:22 Q. Yes. I -- that's a -- kind of a Re: [56:22 to 57:10]

56:23 broad question. Let me -- police Pltf Obj compound, vague, 602

57:01 officers -- you know, I watch TV, so I

57:02 know what police officers do; right?

57:03 But -- but, you know, some police

57:04 officers are patrol cops. Some are, you

57:05 know, behind the desk. Some are

57:06 detectives. You know what I mean?

57:07 There's different ways you can be a

57:08 police officer. Do you have a general

57:08 - 57:10 Burrows, Sarah 2020-09-24

57:08 police officer. Do you have a general Re: [56:22 to 57:10]

57:09 understanding of what his specific role Pltf Obj compound, vague, 602

57:10 is now?

57:12 - 57:20 Burrows, Sarah 2020-09-24

57:12 A. Where we live, it is very rural,

57:13 and they don't have like detectives and

57:14 all that. He runs traffic. He does

57:15 whatever he needs to do. He is very -- I

57:16 mean, there's nothing specific.

57:17 Q. Do you know what kind of firearm

57:18 he -- firearm or firearms he has with him

57:19 as a police officer?

57:20 A. I'm not aware.

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58:09 - 58:19 Burrows, Sarah 2020-09-24

58:09 Q. How long has he been working as Re: [58:09 to 59:01]

58:10 a police officer in Hobart? Pltf Obj compound

58:11 A. Since July of 2019. August.

58:12 July or August.

58:13 Q. What was he doing for a living

58:14 prior to July or August of 2019, at least

58:15 from the time that you were involved with

58:16 him?

58:17 A. EMS.

58:18 Q. Okay. EMS for --

58:19 A. Fire.

58:20 - 59:01 Burrows, Sarah 2020-09-24

58:20 Q. Okay. And was being a police Re: [58:09 to 59:01]

58:21 officer a goal of his? Has he ever told Pltf Obj compound

58:22 you?

58:23 A. He had talked about it several

59:01 times.

59:08 - 59:11 Burrows, Sarah 2020-09-24

59:08 Q. Okay. Has he ever complained to

59:09 you about the fact that he's not able to

59:10 do any specific tasks as a police officer

59:11 because of his hearing?

59:13 - 59:13 Burrows, Sarah 2020-09-24

59:13 A. Not that I can think of.

59:14 - 59:22 Burrows, Sarah 2020-09-24

59:14 Q. Has he discussed with you

59:15 whether he ever wants to obtain a

59:16 different job than a police officer?

59:17 A. Yes.

59:18 Q. Okay. What has he told you

59:19 about that?

59:20 A. He has talked about being an

59:21 officer somewhere else. He has talked

59:22 about being a wildlife ranger.

60:06 - 60:12 Burrows, Sarah 2020-09-24

60:06 Q. Okay. Has he made any active Re: [60:06 to 60:12]

60:07 efforts, to your knowledge, to look for Pltf Obj Incomplete

60:08 employment elsewhere, either as a police Designation

60:09 officer or as a wildlife officer?

60:10 A. No. It's my understanding that

60:11 he's planning on staying here for at

60:12 least the next ten years.

60:13 - 60:16 Burrows, Sarah 2020-09-24

60:13 Q. Okay. Because he has 

children

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60:14 of a certain age that he wants to 

stay

60:15 around for? Is that --

60:16 A. His and mine.

60:17 - 60:21 Burrows, Sarah 2020-09-24

60:17 Q. Okay. All right. Has he ever

60:18 applied for and been turned down for a

60:19 promotion with the police department,

60:20 that you're aware of?

60:21 A. No.

61:06 - 61:10 Burrows, Sarah 2020-09-24

61:06 Does he -- has he ever told you

61:07 he thinks he would have a difficult time

61:08 obtaining a job as a police officer in

61:09 another jurisdiction because of his

61:10 hearing issues?

61:12 - 61:16 Burrows, Sarah 2020-09-24

61:12 A. We have not discussed it.

61:13 Q. Okay. Has he ever told you that

61:14 he thinks he would have a difficult time

61:15 getting a job as a wildlife officer

61:16 because of his hearing issues?

61:18 - 61:18 Burrows, Sarah 2020-09-24

61:18 A. We have not discussed it.

61:19 - 61:20 Burrows, Sarah 2020-09-24

61:19 Q. Other than jobs in law

61:20 enforcement, either in the wildlife area

61:20 - 62:01 Burrows, Sarah 2020-09-24

61:20 enforcement, either in the wildlife area

61:21 or policing, has he ever discussed any

61:22 other type of career choice that he might

61:23 like to pursue in the future?

62:01 A. Not that I can think of.

62:02 - 62:10 Burrows, Sarah 2020-09-24

62:02 Q. All right. How often are -- are

62:03 you over at Mr. Keefer's house?

62:04 A. Daily.

62:05 Q. Okay. Who does the household

62:06 chores around his house?

62:07 A. Me.

62:08 Q. Okay. And why is that?

62:09 A. Because I have issues. I -- I

62:10 just do it.

62:11 - 62:23 Burrows, Sarah 2020-09-24

62:11 Q. I have to explore that just a

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 99 of 305
62:12 little bit. You have issues. Tell me

62:13 what it is that makes you do the -- the

62:14 household chores around his house.

62:15 A. Well, he's busy. I know he's

62:16 busy. I have more free time than he

62:17 does. So if I do it, he doesn't have to

62:18 worry about it. So I just do it.

62:19 Q. All right. So, let's talk about

62:20 specific chores, and let's look at like

62:21 outside chores first, the yard. Who mows

62:22 his yard?

62:23 A. Oh, he does.

63:01 - 63:05 Burrows, Sarah 2020-09-24

63:01 Q. Okay. Have you ever mowed his

63:02 yard?

63:03 A. No. But his neighbor has.

63:04 Q. Okay. Is he able to mow his

63:05 yard without difficulty?

63:07 - 63:16 Burrows, Sarah 2020-09-24

63:07 A. He mows the yard, but he wears Re: [63:07 to 63:16]

63:08 ear protection. Pltf Obj MIL C4 - non-military

63:09 Q. Okay. Have you seen him use, noise exposure, 

63:10 you know, weedeaters and trimmers?

63:11 A. Weedeaters.

63:12 Q. Okay. Is he able to do that?

63:13 A. With protection.

63:14 Q. Okay. Have you ever done that

63:15 for him?

63:16 A. No.

63:21 - 64:01 Burrows, Sarah 2020-09-24

63:21 Q. Do you know if he has circular Re: [63:21 to 64:01]

63:22 saws, table saws, and the like? Pltf Obj MIL C4 - non-military

63:23 A. He does, but I've never seen him noise exposure

64:01 use it.

64:07 - 64:07 Burrows, Sarah 2020-09-24

64:07 Q. Well, in other words, is he

64:07 - 64:08 Burrows, Sarah 2020-09-24

64:07 Q. Well, in other words, is he

64:08 physically able to care for his yard?

64:10 - 64:21 Burrows, Sarah 2020-09-24

64:10 A. He uses -- yeah. He can take

64:11 care of his yard --

64:12 Q. Has he ever -- I'm sorry.

64:13 Keep -- finish your answer.

64:14 A. I was going to say, he uses the

64:15 ear protection and is able to mow and

64:16 weedeat as needed.

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64:17 Q. Has he ever taken care of your

64:18 yard?

64:19 A. Yes.

64:20 Q. Okay. Mowing and the like?

64:21 A. Mowing.

65:06 - 65:23 Burrows, Sarah 2020-09-24

65:06 Q. Okay. What about inside Re: [65:06 to 66:01]

65:07 housework, things like vacuuming, for Pltf Obj MIL C4 - non-military

65:08 example? Have you seen him vacuum noise exposure, 

65:09 before?

65:10 A. I have not.

65:11 Q. Have you vacuumed his house for

65:12 him?

65:13 A. I have.

65:14 Q. Okay.

65:15 A. He was not home at the time.

65:16 Q. Okay. What about laundry? Who

65:17 does his laundry?

65:18 A. I do.

65:19 Q. Does he ever do his own laundry?

65:20 A. He hasn't in two years.

65:21 Q. Okay. In your observation, is

65:22 he physically capable of doing his own

65:23 laundry?

66:01 - 66:01 Burrows, Sarah 2020-09-24

66:01 A. Yes. Re: [65:06 to 66:01]

Pltf Obj MIL C4 - non-military

noise exposure, 

66:03 - 66:21 Burrows, Sarah 2020-09-24

66:03 Q. All right. What about, like,

66:04 doing the dishes? Who does the dishes?

66:05 A. Usually, I do.

66:06 Q. Is he physically capable of

66:07 doing the dishes if you weren't around?

66:08 A. Yes.

66:09 Q. Does he cook?

66:10 A. He does.

66:11 Q. Okay. Have you ever seen him

66:12 have difficulty cooking because of his

66:13 hearing?

66:14 A. Not that I'm aware of.

66:15 Q. Does he ever hire anybody to do

66:16 any housework for him, like a housekeeper

66:17 or the like?

66:18 A. No.

66:19 Q. Has he ever hired anybody to do

66:20 yard work for him?

66:21 A. No. Not that I'm aware of.

66:22 - 67:03 Burrows, Sarah 2020-09-24

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 101 of 305
66:22 Q. Let me ask about -- setting

66:23 aside hearing and tinnitus, what other --

67:01 and I want to divide this between

67:02 physical and emotional. So, let's start

67:03 with physical. Are you aware of any

66:22 - 67:03 Burrows, Sarah 2020-09-24

66:22 Q. Let me ask about -- setting

66:23 aside hearing and tinnitus, what other --

67:01 and I want to divide this between

67:02 physical and emotional. So, let's start

67:03 with physical. Are you aware of any

67:03 - 67:14 Burrows, Sarah 2020-09-24

67:03 with physical. Are you aware of any

67:04 other physical problems that are

67:05 disabilities or injuries or the like that

67:06 Mr. Keefer exhibits these days?

67:07 A. I know he has problems with his

67:08 back and shoulder and knees. He -- like

67:09 sometimes when he gets up, he moves slow.

67:10 His body hurts a lot.

67:11 Q. Okay. Do you know, from what

67:12 he's told you, whether those are injuries

67:13 or -- or problems that developed because

67:14 of his military service?

67:16 - 67:16 Burrows, Sarah 2020-09-24

67:16 A. I'm unaware of what caused them.

68:15 - 68:20 Burrows, Sarah 2020-09-24

68:15 Q. All right. Besides the muscle

68:16 aches and pains or whatever they are with

68:17 the knee and the -- the back, any other

68:18 physical ailments you've observed that

68:19 Mr. Keefer has now or physical

68:20 limitations?

68:22 - 68:22 Burrows, Sarah 2020-09-24

68:22 A. I can't think of anything.

68:23 - 68:23 Burrows, Sarah 2020-09-24

68:23 Q. Okay. What about emotional or

69:01 - 69:12 Burrows, Sarah 2020-09-24

69:01 psychological issues? Are you aware of

69:02 any of those problems that Mr. Keefer may

69:03 have?

69:04 A. I am.

69:05 Q. Okay. Tell me what you're aware

69:06 of.

69:07 A. I know that he has PTSD. He, I

69:08 believe, has depression. He's stressed

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 102 of 305
69:09 all the time.

69:10 Q. All right. Okay. Let's sort of

69:11 break those down. What has he told you

69:12 about the PTSD as to when it began?

69:14 - 69:15 Burrows, Sarah 2020-09-24

69:14 A. He hasn't. He doesn't talk

69:15 about it.

69:16 - 69:19 Burrows, Sarah 2020-09-24

69:16 Q. Okay. How -- how is it you know

69:17 he has it?

69:18 A. I don't know. I don't know how

69:19 I know.

69:20 - 69:23 Burrows, Sarah 2020-09-24

69:20 Q. Do you know if the PTSD was

69:21 something that stemmed from his -- his

69:22 time in the military?

69:23 A. From my understanding.

70:01 - 70:17 Burrows, Sarah 2020-09-24

70:01 Q. Okay. How -- how have -- if at

70:02 all, have you observed the PTSD in

70:03 Mr. Keefer in his -- in your interactions

70:04 with him?

70:05 A. I know like crowds of people

70:06 makes him like really nervous and

70:07 uncomfortable. And there was -- like

70:08 sometimes when he's sleeping, like he'll

70:09 say things in his sleep, and then he'll

70:10 say that he -- like he doesn't remember

70:11 it, but he thinks that he's having dreams

70:12 about when he was in the military. He

70:13 doesn't ever relax. Like, he doesn't

70:14 sleep well at night at all. And when he

70:15 does, like, he, like, twitches all the

70:16 time and makes -- like it's like he's

70:17 never resting.

70:18 - 70:20 Burrows, Sarah 2020-09-24

70:18 Q. Okay. Do you know what kind of

70:19 treatment, if any, he's received or

70:20 receiving for his PTSD?

70:22 - 71:01 Burrows, Sarah 2020-09-24

70:22 A. I do not.

70:23 Q. Do you know if he's going to see

71:01 a counselor for that?

71:03 - 71:08 Burrows, Sarah 2020-09-24

71:03 A. Not that I'm aware of.

71:04 Q. You mentioned depression. Is

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 103 of 305
71:05 that something that to your understanding

71:06 has been actually diagnosed as

71:07 depression?

71:08 A. I believe so.

71:13 - 71:21 Burrows, Sarah 2020-09-24

71:13 Q. And how have you observed the

71:14 depression affecting him on a daily

71:15 basis?

71:16 A. The fact that, like, he can't

71:17 sleep at night but he sleeps a ton during

71:18 the day. He's kind of withdrawn at

71:19 times. And, like, I can see it. I -- I

71:20 know that's hard to explain, but I can

71:21 see it.

71:22 - 72:01 Burrows, Sarah 2020-09-24

71:22 Q. Do you know if he's receiving

71:23 any treatment for his depression?

72:01 A. I'm not aware.

72:02 - 72:04 Burrows, Sarah 2020-09-24

72:02 Q. Do you know if he's on any sort

72:03 of antidepressant medications?

72:04 A. Not that I'm aware of.

73:13 - 73:15 Burrows, Sarah 2020-09-24

73:13 Q. You mentioned sleep problems. Re: [73:13 to 73:15]

73:14 Do you know whether Mr. Keefer has sleep Pltf Obj 702

73:15 apnea?

73:17 - 73:19 Burrows, Sarah 2020-09-24

73:17 A. I'm not aware.

73:18 Q. Okay. Does he snore?

73:19 A. Yes.

74:02 - 74:03 Burrows, Sarah 2020-09-24

74:02 Q. And does he sleep with a CPAP or

74:03 BiPAP machine or with a mask at night?

74:05 - 74:19 Burrows, Sarah 2020-09-24

74:05 A. He does have a CPAP.

74:06 Q. Does he use it?

74:07 A. I don't know. I haven't seen

74:08 it.

74:09 Q. Okay. You know he has one, but

74:10 you don't know if he's using it. Is that

74:11 correct?

74:12 A. Yes.

74:13 Q. Okay. Do you know how long he's

74:14 had it? Has he ever told you that?

74:15 A. I don't know.

74:16 Q. And have you ever asked him

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74:17 whether he uses the CPAP machine?

74:18 A. No. He has talked about using

74:19 it, but I don't ask.

75:06 - 75:17 Burrows, Sarah 2020-09-24

75:06 Q. Has he ever indicated that his

75:07 sleep issues have any -- anything to do

75:08 with his hearing loss or tinnitus?

75:09 A. I'm not aware.

75:10 Q. Has he ever mentioned to you

75:11 whether his depression is related to his

75:12 hearing loss or tinnitus?

75:13 A. We don't talk about it.

75:14 Q. Okay. Has he ever indicated to

75:15 you whether his PTSD is affected at all

75:16 by his hearing loss or tinnitus?

75:17 A. We don't talk about it.

76:07 - 77:02 Burrows, Sarah 2020-09-24

76:07 Q. Have you -- have you ever Re: [76:07 to 77:02]

76:08 recommended that he go see a doctor for Pltf Obj 402

76:09 any reason?

76:10 A. Yeah.

76:11 Q. Okay. In -- in what context?

76:12 A. Like, he had a cold or

76:13 something, and I thought he should go to

76:14 the doctor.

76:15 Q. Okay. Have you ever suggested

76:16 he go to the doctor for his hearing

76:17 issues or tinnitus?

76:18 A. I have not.

76:19 Q. Have you ever suggested he go to

76:20 the -- to go seek treatment for his PTSD

76:21 or depression or stress?

76:22 A. I have not.

76:23 Q. Have you ever suggested he go

77:01 see a doctor about his sleep issue?

77:02 A. I have not.

78:16 - 78:20 Burrows, Sarah 2020-09-24

78:16 Q. Does he ever just keep in touch,

78:17 to your knowledge, with any former

78:18 friends in the military?

78:19 A. I know he keeps in touch with

78:20 several.

79:15 - 79:23 Burrows, Sarah 2020-09-24

79:15 Q. Who are his friends now?

79:16 A. Now he has a few. I'd say Levi

79:17 Lawson, Brandon Ammerman, Cody Fanning,

79:18 Derek Earls.

79:19 Q. Are they all people who live in

79:20 the Hobart area?

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 105 of 305
79:21 A. Levi does not live here, but he

79:22 lives in a town close by. They used to

79:23 work together.

80:08 - 80:14 Burrows, Sarah 2020-09-24

80:08 Q. Okay. Do you know of any of his

80:09 coworkers at the police department that

80:10 he's close to?

80:11 A. Brandon Ammerman is one.

80:12 Richard Jones. I don't think I mentioned

80:13 him. Cody Fanning. Cody Siesser. I

80:14 think that's all.

84:19 - 84:23 Burrows, Sarah 2020-09-24

84:19 Q. I had asked you some questions

84:20 about his current friends, and you gave

84:21 me a list of a few names. How does he --

84:22 in what ways does he socialize with his

84:23 friends?

85:02 - 85:03 Burrows, Sarah 2020-09-24

85:02 A. Text messages. If he sees them,

85:03 he talks to them.

85:04 - 85:23 Burrows, Sarah 2020-09-24

85:04 Q. Okay. So that was actually one

85:05 of my next questions, is text -- is he --

85:06 I mean, there are people who are texters

85:07 and people who are not texters and there

85:08 are people in the middle; right? So,

85:09 where is he? In your observation of him

85:10 texting, is he a frequent texter?

85:11 A. Yes.

85:12 Q. Okay. Is that his primary

85:13 method of communicating with -- with you,

85:14 for example, when you're not in the same

85:15 location?

85:16 A. Yes.

85:17 Q. Okay. Is that the way he

85:18 interacts with his children when he's not

85:19 with them?

85:20 A. Yes. Or FaceTime.

85:21 Q. Or FaceTime? And with his

85:22 friends, is it the same way? You've

85:23 observed him texting?

86:02 - 86:02 Burrows, Sarah 2020-09-24

86:02 A. Yes.

88:15 - 89:01 Burrows, Sarah 2020-09-24

88:15 Q. You mentioned earlier avoiding

88:16 crowded places or whatever. What

88:17 about -- let's talk about, like,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 106 of 305
88:18 restaurants, for example. Do you all go

88:19 out to dinner at restaurants?

88:20 A. Yes.

88:21 Q. Often -- okay. How often do you

88:22 go out?

88:23 A. I don't know. Couple of times a

89:01 month.

89:02 - 89:16 Burrows, Sarah 2020-09-24

89:02 Q. Okay. Is it usually just the

89:03 two of you, or is it bring the kids, or a

89:04 combination?

89:05 A. It -- I mean, if it's just us,

89:06 then we'll go. But if we have our kids,

89:07 they go, too.

89:08 Q. Are there other couples that

89:09 y'all are friends with?

89:10 A. Yes. But we don't hang out with

89:11 them.

89:12 Q. Okay. You're --

89:13 A. Like, we have mutual friends

89:14 that are couples, but we don't -- we

89:15 don't really hang out with anybody. We

89:16 basically just -- it's us and our kids.

89:17 - 89:21 Burrows, Sarah 2020-09-24

89:17 Q. Okay. Has he ever -- has Mr.

89:18 Keefer ever expressed to you a desire to

89:19 do more hanging out with friends or

89:20 lamenting the fact that you can't hang

89:21 out with your friends more?

89:23 - 89:23 Burrows, Sarah 2020-09-24

89:23 A. No.

90:08 - 90:10 Burrows, Sarah 2020-09-24

90:08 Q. With friends. In other words,

90:09 is he -- does he ever express regret that

90:10 he can't be out socializing more?

90:12 - 90:12 Burrows, Sarah 2020-09-24

90:12 A. We haven't discussed it.

90:13 - 90:23 Burrows, Sarah 2020-09-24

90:13 Q. What restaurants do you like to

90:14 go to?

90:15 A. I don't know. There are

90:16 several.

90:17 Q. Okay. I mean, what do you --

90:18 give me a list of a couple of the

90:19 restaurants you might go to.

90:20 A. Sakura, Plaza, Roma's, Johnny

90:21 Carino's, Home -- Home Town Pizza,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 107 of 305
90:22 Hideaway Pizza.

90:23 Q. And when you go, do you

91:01 - 91:03 Burrows, Sarah 2020-09-24

91:01 typically eat there, or do you bring it

91:02 home?

91:03 A. Both.

91:18 - 91:23 Burrows, Sarah 2020-09-24

91:18 Q. What about sort of adult

91:19 parties? Is that something y'all do, go

91:20 to adult parties together?

91:21 A. Been to like three.

91:22 Q. And I also recognize 2020 is a

91:23 terrible time to talk about going to

92:01 - 92:10 Burrows, Sarah 2020-09-24

92:01 parties. It doesn't happen very often,

92:02 so. Prior to the pandemic, I should say,

92:03 you went to some -- went to parties three

92:04 or four times, you think, maybe two or

92:05 three times?

92:06 A. Yeah. There was less than like

92:07 ten people at all of them.

92:08 Q. Okay. Is he a member of any

92:09 social clubs?

92:10 A. Masonic lodge.

92:11 - 92:12 Burrows, Sarah 2020-09-24

92:11 Q. Okay. What does -- what does he

92:12 do at the Masonic lodge?

92:14 - 92:14 Burrows, Sarah 2020-09-24

92:14 A. Nothing much now.

92:15 - 92:17 Burrows, Sarah 2020-09-24

92:15 Q. Okay. When you say "nothing

92:16 much now," is that pandemic-related?

92:17 A. No.

92:19 - 92:23 Burrows, Sarah 2020-09-24

92:19 A. He hasn't really done much since

92:20 he changed jobs.

92:21 Q. Okay. Is that because of the

92:22 time issue or because there's something

92:23 about his current job that makes --

93:01 - 93:15 Burrows, Sarah 2020-09-24

93:01 A. Time issue.

93:02 Q. Okay. Prior to his current job,

93:03 what was he doing with the Masonic lodge,

93:04 what sort of activities?

93:05 A. No activities. Like, he would

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 108 of 305
93:06 go to the meetings if he could go to the

93:07 meetings, but that was it.

93:08 Q. Okay. How often were those

93:09 meetings held?

93:10 A. I think it's twice a month.

93:11 Q. Okay. Has he ever been an

93:12 officer in the Masonic lodge?

93:13 A. Yes, but I'm not sure what. I

93:14 don't understand the Masonic lodge very

93:15 well.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 109 of 305
Pltf Objections 3M Objections Rulings

11:07 - 11:12 Crossley, Cynthia 2020-09-21

11:07 Can you please state your full

11:08 name for the Record?

11:09 A. Cynthia Melissa Crossley.

11:10 Q. And where do you live, Ms.

11:11 Crossley?

11:12 A. I live in Southside, Alabama.

22:19 - 22:25 Crossley, Cynthia 2020-09-21

22:19 Q. Okay. When did you first become

22:20 aware of the dual-ended versions of the Combat

22:21 Arms Earplugs?

22:22 A. Many years ago.

22:23 Q. Would you say -- Can you ballpark

22:24 when that was? Was it prior to 2005, prior to

22:25 2010?

23:01 - 23:01 Crossley, Cynthia 2020-09-21

23:01 A. It was prior to 2005.

24:17 - 24:22 Crossley, Cynthia 2020-09-21

24:17 Q. Did you ever receive any training

24:18 or instructions on how to use the Combat Arms

24:19 Earplugs?

24:20 A. Yeah. I would think I received

24:21 specific training regarding those just as a

24:22 matter of knowing how they worked.

25:03 - 25:08 Crossley, Cynthia 2020-09-21

25:03 Q. And who would have provided that

25:04 training?

25:05 A. In the general chain of command

25:06 in the military, that would have come down from

25:07 the hearing conservation officer within the --

25:08 at the post I was working at.

25:10 - 25:13 Crossley, Cynthia 2020-09-21

25:10 And would that person have been a

25:11 -- an employee of the Department of Defense?

25:12 A. That person would have been an

25:13 active duty hearing conservation officer.

25:20 - 25:23 Crossley, Cynthia 2020-09-21

25:20 The dual-ended version of the

25:21 Combat Arms Earplug is the only earplug you

25:22 recall having received special instructions for

25:23 how to use?

25:25 - 26:09 Crossley, Cynthia 2020-09-21

25:25 A. I -- I received specific training

26:01 on each type of earplug that we issued. And

26:02 that was -- I was trained -- I was certified

26:03 every five years within the Hearing

26:04 Conservation Program on what the aspects of

26:05 fitting earplugs were, and that included all

26:06 the -- all the OSHA-approved earplugs for the

26:07 military. So about every four or five years,

26:08 and on a daily basis, practically, as far as

26:09 fitting.

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 110 of 305
26:11 - 26:13 Crossley, Cynthia 2020-09-21

26:11 Would you agree that you received Re: [26:11 to 26:13]

26:12 considerable instruction and training on how to Pltf Obj 611; leading

26:13 use hearing protection devices?

26:15 - 26:15 Crossley, Cynthia 2020-09-21

26:15 A. Yes. Re: [26:15 to 26:15]

Pltf Obj 611; leading

26:16 - 26:19 Crossley, Cynthia 2020-09-21

26:16 Q. And you were recertified in the Re: [26:16 to 26:19]

26:17 use of the hearing protection devices every Pltf Obj 611; leading

26:18 five years; is that correct?

26:19 A. Yes. Yes.

27:05 - 27:14 Crossley, Cynthia 2020-09-21

27:05 Q. And during the course of your Re: [27:05 to 27:14]

27:06 medical practice, you don't recall having Pltf Obj 611; leading

27:07 discussed the Combat Arms much with soldiers?

27:08 A. Not much. And I don't recall

27:09 issuing Combat Arms Ear -- because we worked in

27:10 concert with the people who were oversighting

27:11 the Hearing Conservation Program at Fort

27:12 Benning. But we -- you know, we -- We worked

27:13 in concert with them, but we didn't necessarily

27:14 see them every day.

29:08 - 29:10 Crossley, Cynthia 2020-09-21

29:08 Q. And you said you were a board

29:09 certified occupational health nurse --

29:10 A. Yes.

29:18 - 30:02 Crossley, Cynthia 2020-09-21

29:18 Q. Okay. And how long have you been Re: [29:18 to 30:02]

29:19 a certified occupation health nurse? Pltf Obj Incomplete

29:20 A. Oh, goodness. I would have to go designation

29:21 get that certification certificate to tell you

29:22 exactly. But I went to work at -- I graduated

29:23 in '82, I went to work in occupational health

29:24 at Fort Benning in 1991. Probably five years

29:25 later, at the most, I received that

30:01 certification; and, you know, that's

30:02 ballparking it.

34:13 - 34:15 Crossley, Cynthia 2020-09-21

34:13 Q. And approximately what year did

34:14 you start at Fort Benning?

34:15 A. May 13, 1991.

34:24 - 35:03 Crossley, Cynthia 2020-09-21

34:24 Q. How long did you work at Fort

34:25 Benning?

35:01 A. Twenty-eight years.

35:02 Q. Okay. And you recently retired?

35:03 A. Yes.

35:10 - 36:01 Crossley, Cynthia 2020-09-21

35:10 Q. During the course of your

35:11 twenty-eight years at Fort Benning, you served

35:12 as an occupational health nurse during that

35:13 time?

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 111 of 305
35:14 A. Yes.

35:15 Q. During those twenty-eight years,

35:16 did you work within the Hearing Conservation

35:17 Program?

35:18 A. Yes.

35:19 Q. And during those twenty-eight

35:20 years, did you review audiological testing for

35:21 soldiers?

35:22 A. Yes.

35:23 Q. And during those twenty-eight

35:24 years, did you conduct audiological testing on

35:25 soldiers?

36:01 A. Yes.

36:02 - 36:18 Crossley, Cynthia 2020-09-21

36:02 Q. Did your work in occupational

36:03 health change at all in the twenty-eight years

36:04 you were at Fort Benning?

36:05 A. Oh, yes. It got better.

36:06 Q. In what ways?

36:07 A. More rewarding.

36:08 Q. Okay. And why was that?

36:09 A. Because -- Okay. Let me get on

36:10 my little soapbox here.

36:11 I love soldiers. I literally

36:12 loved working for soldiers. But I loved

36:13 working for the civilian employees and the

36:14 volunteers and contractors that, at certain

36:15 times, would come across our path.

36:16 But it was just a very, very

36:17 rewarding experience for me, professionally and

36:18 personally.

36:19 - 37:14 Crossley, Cynthia 2020-09-21

36:19 Q. And as an occupational health

36:20 nurse, what did you view your job or

36:21 responsibility, in terms of the soldiers?

36:22 A. Doing the best I could to make

36:23 them aware of their responsibility for staying

36:24 safe, because it all -- it all comes to bear on

36:25 the person, you know, that you're taking care

37:01 of. You can -- You can lead a horse to water,

37:02 but you can't make them drink. You can teach

37:03 them all day long, but unless they understand

37:04 what you teach them, you're teaching is in

37:05 vain. I loved teaching, and I loved teaching

37:06 my soldiers.

37:07 Q. So one of your job

37:08 responsibilities was educating soldiers about

37:09 the risks associated with their jobs?

37:10 A. Yes.

37:11 Q. And one of your responsibilities

37:12 was educating soldiers about the hearing risks

37:13 involved in their jobs?

37:14 A. Yes.

38:18 - 38:22 Crossley, Cynthia 2020-09-21

38:18 When you were educating soldiers Re: [38:18 to 38:22]

38:19 about the risks of hearing loss and other Pltf Obj 602; foundation;

38:20 audiological injuries, what were the most compound; 403; MIL G5; 

38:21 difficult problems you faced in educating

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38:22 soldiers about those risks?

38:24 - 38:25 Crossley, Cynthia 2020-09-21

38:24 A. Overcoming their resistance to Re: [38:24 to 38:25]

38:25 following the instructions. Pltf Obj 602; foundation; 403;

MIL G5; 

39:01 - 39:03 Crossley, Cynthia 2020-09-21

39:01 Q. And what was your understanding Re: [39:01 to 39:03]

39:02 of the resistance to following the Pltf Obj 602; foundation; 403;

39:03 instructions? MIL G5; 

39:05 - 39:21 Crossley, Cynthia 2020-09-21

39:05 A. Some -- Sometimes, you know, they Re: [39:05 to 39:21]

39:06 would make a little joke. And say: Yeah, I Pltf Obj 602; foundation; 403;

39:07 carry my earplugs with me all the time, you MIL G5; 

39:08 know, and then do this (indicating). They

39:09 would refer to them as manual digital inserts.

39:10 You know, so there was always the back and

39:11 forth and the kidding portion of the

39:12 interaction between me as a provider and them

39:13 as a patient. And I would laugh and cut-up and

39:14 carry on with them, but I didn't always come

39:15 away with the feeling that they truly

39:16 understood the importance of their adherence to

39:17 my instructions. They understood what I was

39:18 saying.

39:19 Q. So in your experience, was a

39:20 failure of soldiers to use hearing protection a

39:21 major problem?

39:23 - 40:25 Crossley, Cynthia 2020-09-21

39:23 A. You know, at times it was. Re: [39:23 to 40:25]

39:24 Because they -- The nature of their job is you Pltf Obj Strike Nonresponsive;

39:25 do it, you do it fast, and you do it as good as 611; leading; vague; 602

40:01 you can, as fast as you can, to say as safe as

40:02 you can. Sometimes you lose your -- You jump

40:03 off a track and lose your earplugs; your safety

40:04 glasses go one way, your earplugs go the other

40:05 way, you know. And so they do the best they

40:06 can with what they have. I never doubted that.

40:07 But I will tell you, sometimes I

40:08 felt like I could have personally felt better

40:09 about their understanding if -- if I could just

40:10 get across to them the importance of wearing

40:11 the earplugs. I had good reports sometimes.

40:12 They'd say: Listen, I am not going to be a

40:13 seventy-year-old grandfather and not be able to

40:14 hear my grandchildren.

40:15 So, yeah, you know, I had some

40:16 concerns that they would adhere to my

40:17 instructions perfectly; sometimes imperfectly.

40:18 But it was -- Whether they understood it or

40:19 not, bottom line, it was their responsibility

40:20 to follow those instructions to get the best

40:21 results from the hearing protection.

40:22 Q. You believe that the education

40:23 you provided to soldiers was important in

40:24 preventing their hearing-related injuries?

40:25 A. Yes.

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43:09 - 43:13 Crossley, Cynthia 2020-09-21

43:09 Q. To provide soldiers education Re: [43:09 to 43:13]

43:10 about their use of hearing protection, was it Pltf Obj Compound; 702; 602;

43:11 important to you that they accurately report to

43:12 you how and when they were using hearing

43:13 protection devices?

43:15 - 43:18 Crossley, Cynthia 2020-09-21

43:15 A. Well, yeah, it -- You know, when

43:16 I -- And many times in my notes I would reflect

43:17 that after being educated, they were able to

43:18 demonstrate what they were taught.

43:21 - 43:25 Crossley, Cynthia 2020-09-21

43:21 For example, while you were

43:22 providing education about the use of hearing

43:23 protection devices, was it important to know

43:24 which hearing protection devices soldiers were

43:25 actually using?

44:02 - 44:06 Crossley, Cynthia 2020-09-21

44:02 A. They always told us which ones Re: [44:02 to 44:06]

44:03 they were using, because that was a portion of Pltf Obj Strike Nonresponsive;

44:04 the audiological testing; they told us what

44:05 they were using and that was added to the

44:06 audiological test.

46:10 - 47:09 Crossley, Cynthia 2020-09-21

46:10 Q. How do you decide what earplugs Re: [46:10 to 47:09]

46:11 to issue to a soldier? Pltf Obj Vague 

46:12 A. You look in their ears, and you

46:13 judge the size, you get the size, you stick

46:14 them in, and if they fit, and they -- we sound

46:15 muffled to their -- to their -- to the soldier

46:16 that was just issued the earplugs, then we --

46:17 we can safely assume that's a good fit.

46:18 Is it the best fit? You know,

46:19 maybe not. If it's not the best fit, then we

46:20 would send them to have earplugs made for them.

46:21 Because for some soldiers whose

46:22 ears were too big for the largest earplugs we

46:23 had, so we'd send them and have them made

46:24 specifically for them.

46:25 Q. And were there -- What were the

47:01 different types of hearing protection devices

47:02 that you issued?

47:03 A. Single-flange, double-flange,

47:04 triple-flange, quad-flange, and that's it.

47:05 That's what we had.

47:06 And at some point, you know, you

47:07 had to have all the different earplugs that are

47:08 available within the system, you have to have

47:09 those present to fit the soldier as well.

47:10 - 48:10 Crossley, Cynthia 2020-09-21

47:10 Q. Did you ever have Combat Arms Re: [47:10 to 48:10]

47:11 Version 2, the dual-ended plugs, available for Pltf Obj vague; Foundation;

47:12 issuing? 702 (48:05-48:07)

47:13 A. You know, I know we did for a

47:14 while, but I don't know how long, and I know we

47:15 didn't have them all the time. That's about

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47:16 the -- That's about the best answer I can give

47:17 you. Yeah, I do remember them being there; no,

47:18 I don't remember how long or why they weren't

47:19 there all the time. I just don't know.

47:20 I -- I was not responsible for

47:21 making the purchasing and -- I was not

47:22 responsible for ordering or purchasing, so I

47:23 honestly don't know. I used what I was given.

47:24 Q. Do you recall ever having issued

47:25 the dual-ended Combat Arms to a soldier?

48:01 A. You know, I don't truly -- I -- I

48:02 really can't answer that with a great deal of

48:03 confidence, because I don't remember

48:04 specifically fitting them.

48:05 Q. And was fitting earplugs

48:06 important?

48:07 A. Yeah, it was.

48:08 Q. And why was it important?

48:09 A. The better the fit, the better

48:10 the hearing protection.

48:11 - 48:13 Crossley, Cynthia 2020-09-21

48:11 Q. And does any one type of earplug Re: [48:11 to 48:13]

48:12 fit every soldier? Pltf Obj 702; 602; Foundation 

48:13 A. No.

48:15 - 48:15 Crossley, Cynthia 2020-09-21

48:15 Q. And why was that? Re: [48:15 to 48:15]

Pltf Obj 702, 602; vague;

Foundation

48:16 - 48:16 Crossley, Cynthia 2020-09-21

48:16 A. Because -- Re: [48:16 to 48:16]

Pltf Obj 702, 602; vague;

Foundation

48:18 - 48:20 Crossley, Cynthia 2020-09-21

48:18 A. -- everybody's ears are Re: [48:18 to 48:20]

48:19 different. Everybody has a different sized Pltf Obj 702, 602; vague;

48:20 ear. Foundation

49:02 - 49:04 Crossley, Cynthia 2020-09-21

49:02 Q. Was it important for earplugs to Re: [49:02 to 49:04]

49:03 be medically fit to ensure that they are Pltf Obj 702; 602; vague;

49:04 adequately protecting the soldier's hearing? foundation

49:06 - 49:07 Crossley, Cynthia 2020-09-21

49:06 A. I don't know what you mean by

49:07 medically fit.

49:08 - 49:16 Crossley, Cynthia 2020-09-21

49:08 Q. So, for example, just giving a Re: [49:08 to 49:16]

49:09 soldier a package of earplugs and saying: Pltf Obj 702; 602; vague;

49:10 Stick these in your ears, would be one way to foundation; compound; 611;

49:11 distribute earplugs. Another way would be for leading'

49:12 them to sit down with someone like you, who is

49:13 trained to select the right earplug for them,

49:14 make sure it's fit in their ear, et cetera.

49:15 Does that make sense?

49:16 A. Yes, it does.

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49:18 - 50:13 Crossley, Cynthia 2020-09-21

49:18 A. Thank you for the clarity. Re: [49:18 to 50:13]

49:19 Yes, that is important. And that Pltf Obj Strike Nonresponsive 

49:20 was part of our job: We looked in their ears,

49:21 we made sure they didn't have a wax build-up

49:22 that would block their -- a good result from

49:23 their hearing test.

49:24 We issued earplugs based on the

49:25 size of their ear canal. And that -- And we --

50:01 We personally inserted them to ensure that they

50:02 did fit, there was a good resistance to trying

50:03 to pull it out of the ear canal, and then we'd

50:04 take them out and have the soldier put them in.

50:05 But I'm going to tell you, when

50:06 you've been in the service fifteen years and

50:07 somebody is trying to teach you to use the same

50:08 earplug you were issued last year, it's not

50:09 always real -- it's not -- you know what I'm --

50:10 I'm not sure you know what I'm saying. But I'm

50:11 -- You know, there's a difference between a

50:12 ranked private and a sergeant major, in the way

50:13 they know how to use earplugs.

50:15 - 50:17 Crossley, Cynthia 2020-09-21

50:15 A. It takes longer to fit a ranked Re: [50:15 to 50:17]

50:16 sergeant than it does a sergeant major, I'll Pltf Obj Strike Nonresponsive

50:17 put it that way.

50:18 - 50:20 Crossley, Cynthia 2020-09-21

50:18 Q. While trying to fit a soldier Re: [50:18 to 50:20]

50:19 with earplugs you had any issues getting an Pltf Obj Vague 

50:20 adequate seal, what would you have done?

50:22 - 51:02 Crossley, Cynthia 2020-09-21

50:22 A. If there was an inadequate seal

50:23 that we could not address, then we would write

50:24 a consult to the audiologist, and they would

50:25 literally make them earplugs that specifically

51:01 fit their ear canals. We did it quite

51:02 frequently.

51:03 - 51:08 Crossley, Cynthia 2020-09-21

51:03 Q. So when you were doing hearing Re: [51:03 to 51:08]

51:04 protection device fitting, you made sure that Pltf Obj 611; Leading; vague;

51:05 the hearing protection device used, the foundation

51:06 earplug, actually fit in the soldier's ears;

51:07 correct?

51:08 A. Correct.

51:10 - 51:15 Crossley, Cynthia 2020-09-21

51:10 Q. And if you had any problems using

51:11 one earplug, for example the quad flange, if

51:12 you had had issues inserting that plug, would

51:13 you have tried other, you know, versions of

51:14 plugs that you had that you could issue?

51:15 A. Yes.

53:24 - 53:25 Crossley, Cynthia 2020-09-21

53:24 Program. Can you please explain to the jury

53:25 what the Army Hearing Program is?

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54:02 - 54:06 Crossley, Cynthia 2020-09-21

54:02 A. The Army Hearing Program is a

54:03 part of the Army's Medical Surveillance

54:04 Program. And the hearing conservation portion

54:05 is that it is a portion of the screening -- the

54:06 annual screening process.

61:03 - 61:06 Crossley, Cynthia 2020-09-21

61:03 Q. Do you recall any training or

61:04 education provided by you specifically related

61:05 to the Combat Arms Earplugs?

61:06 A. I don't.

64:25 - 65:06 Crossley, Cynthia 2020-09-21

64:25 Q. And you mentioned that as part of

65:01 the Hearing Conservation Program, there were

65:02 regular audiological tests conducted; is that

65:03 correct?

65:04 A. Yes.

65:05 Q. And when were the audiological

65:06 tests conducted, how frequently?

65:08 - 65:10 Crossley, Cynthia 2020-09-21

65:08 A. Annually, and more frequently if

65:09 the soldier reported a notable change in their

65:10 hearing.

67:12 - 67:15 Crossley, Cynthia 2020-09-21

67:12 Q. In addition to the regular Re: [67:12 to 67:15]

67:13 audiological testing, was the fitting of Pltf Obj vague; foundation;

67:14 hearing protection devices an important 602; 611; leading

67:15 component of the Hearing Conservation Program?

67:17 - 67:17 Crossley, Cynthia 2020-09-21

67:17 A. Yes. Re: [67:17 to 67:17]

Pltf Obj vague; foundation;

602; 

67:18 - 67:20 Crossley, Cynthia 2020-09-21

67:18 Q. Were there any other aspects or

67:19 components of the Hearing Conservation Program

67:20 that you worked in?

67:22 - 68:05 Crossley, Cynthia 2020-09-21

67:22 A. I wrote consults to the

67:23 audiologist.

67:24 Q. And what is a consult to an

67:25 audiologist?

68:01 A. When a soldiers fails the hearing

68:02 -- the hearing test portion, and -- twice, then

68:03 after that -- After the soldier fails the

68:04 hearing test twice in our office, then we refer

68:05 that soldier to the audiologist.

68:12 - 68:13 Crossley, Cynthia 2020-09-21

68:12 Q. And what does a failure look like

68:13 on one of the -- your audiological tests?

68:15 - 69:02 Crossley, Cynthia 2020-09-21

68:15 A. A failure would be an H2 or an

68:16 H3.

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68:17 Q. Can you explain to the jury what

68:18 an H2 is?

68:19 A. I'm sorry. An H2 -- an H1 --

68:20 It's a way of grading hearing profiles. An H1

68:21 is a normal test; an H2 is mild to moderate

68:22 hearing loss, we'd bring them back for another

68:23 test within fifteen -- within thirty days. If

68:24 that failure was persistent, then we would

68:25 refer them out to the audiologist. Or if they

69:01 went from -- Or if they were a newly diagnosed

69:02 H3, then we would send them to the audiologist.

69:07 - 69:10 Crossley, Cynthia 2020-09-21

69:07 Q. Prior to discussing this

69:08 deposition today, did you have any recollection

69:09 of Lewis Keefer?

69:10 A. I did not.

71:03 - 71:23 Crossley, Cynthia 2020-09-21

71:03 Q. Okay. I'm now going to mark as

71:04 Exhibit 3 a medical record from October 2007.

71:05 Do you recognize this medical record?

71:06 A. I recognize, yes, the form

71:07 itself.

71:08 Q. Is this one of the medical

71:09 records you reviewed prior to the deposition

71:10 today?

71:11 A. Yes.

71:12 Q. And this is an October 10, 2007,

71:13 medical record authored by Cynthia M. Crossley;

71:14 is that correct?

71:15 A. Yes.

71:16 Q. And the clinic here says

71:17 Occupational Health FBGA.

71:18 A. Yes.

71:19 Q. What does the FBGA stand for?

71:20 A. Fort Benning -- Let's see where

71:21 is -- Part of this is blocked. Let me see if I

71:22 can get you-all moved around here. FBGA is

71:23 Fort Benning, Georgia.

71:24 - 72:01 Crossley, Cynthia 2020-09-21

71:24 Q. The reason for appointment here

71:25 is listed as in-processing post. Do you see

72:01 that?

72:02 - 72:12 Crossley, Cynthia 2020-09-21

72:02 A. Yes.

72:03 Q. What does in-processing post

72:04 mean?

72:05 A. When a new soldier comes onboard,

72:06 he would in-process through occupational health

72:07 to be sure that everything was up-to-date.

72:08 Q. And is this a medical record that

72:09 you would have authored?

72:10 A. This is a medical record -- let's

72:11 see -- Let's see if I can get the -- I can't

72:12 get it to go where I can see.

72:15 - 72:20 Crossley, Cynthia 2020-09-21

72:15 A. Okay. There, that's better.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 118 of 305
72:16 Reason for appointment is in-processing post.

72:17 RSIes, I reviewed medications and to determine

72:18 if we was okay on that. SO note, history,

72:19 annual medical surveillance screening. Appears

72:20 healthy.

72:21 - 72:23 Crossley, Cynthia 2020-09-21

72:21 THE WITNESS: Can I see the Re: [72:21 to 72:23]

72:22 bottom, the next page, please? Can you pull Pltf Obj Strike Nonresponsive 

72:23 that one up for me?

72:24 - 72:25 Crossley, Cynthia 2020-09-21

72:24 A. Okay. He was given a hearing Re: [72:24 to 72:25]

72:25 test, a vision test, and ear protector Pltf Obj Strike Nonresponsive

73:01 - 73:04 Crossley, Cynthia 2020-09-21

73:01 measurement. Yes. That's something I -- The Re: [73:01 to 73:04]

73:02 -- The A/P portion, I wrote; the disposition, I Pltf Obj Strike Nonresponsive

73:03 wrote; and the screening, I wrote; and the SO,

73:04 I wrote. So, yes, I recognize this.

73:05 - 73:10 Crossley, Cynthia 2020-09-21

73:05 Q. So on the first page of this

73:06 document, there is the text that says:

73:07 Screening, written by Cynthia Crossley.

73:08 A. Uh-huh.

73:09 Q. Do you see that?

73:10 A. Yes.

73:11 - 73:25 Crossley, Cynthia 2020-09-21

73:11 Q. So you would have written this Re: [73:11 to 73:25]

73:12 text, the visit for: Occupational Pltf Obj Leading

73:13 health/fitness exam?

73:14 A. Yes.

73:15 Q. What is an occupational

73:16 health/fitness exam?

73:17 A. Well, that's kind of a catch-all.

73:18 We used it for a lot of different things, but

73:19 it was just a general term that he was there

73:20 for more than just a -- a hi-and-bye kind of

73:21 in-processing. It was -- We did something --

73:22 We did a medical intervention of some sort.

73:23 Q. And just below that there's text

73:24 that says SO note written by Crossley, Cynthia.

73:25 A. Uh-huh.

74:01 - 74:03 Crossley, Cynthia 2020-09-21

74:01 Q. What is an SO note?

74:02 A. That's subjective/objective.

74:03 Subjective reports and objective findings.

75:03 - 75:18 Crossley, Cynthia 2020-09-21

75:03 Q. Yeah. So where it says tests and

75:04 laboratory studies, what is that section of the

75:05 note describing?

75:06 A. That he was fitted, issued, and

75:07 instructed in the use of blue Quattros hearing

75:08 protection devices, and he demonstrated back

75:09 correct use, and he was instructed to repeat it

75:10 in one year.

75:11 Q. And this was text that you would

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75:12 have written?

75:13 A. Yes.

75:14 Q. And what does audiometry fitted

75:15 mean in this context?

75:16 A. It should, actually, for the sake

75:17 of context, it should be Audiometry: Fitted,

75:18 issued, and instructed.

75:24 - 75:25 Crossley, Cynthia 2020-09-21

75:24 Q. Okay. And so where it says Re: [75:24 to 75:25]

75:25 fitted, issued, and instructed in use of blue Pltf Obj Leading

(75:24-76:02); 

76:01 - 76:07 Crossley, Cynthia 2020-09-21

76:01 Quattros HPD, you authored that note; correct? Re: [76:01 to 76:07]

76:02 A. Yes. Pltf Obj Leading

76:03 Q. And to the best of your (76:03-76:07);

76:04 recollection, this note reflected what occurred

76:05 during your appointment with Mr. Keefer on

76:06 October 10, 2007?

76:07 A. Yes.

76:09 - 76:11 Crossley, Cynthia 2020-09-21

76:09 Q. And why would you have fitted, Re: [76:09 to 76:11]

76:10 issued, and instructed Mr. Keefer in the use of Pltf Obj Foundation

76:11 the blue Quattros on October 10, 2007?

76:13 - 76:17 Crossley, Cynthia 2020-09-21

76:13 A. Well, we always issued earplugs, Re: [76:13 to 76:17]

76:14 and blue Quattros is what we had. Pltf Obj Vague; 702; 

76:15 Q. And so in terms of the fitted

76:16 portion of this note, was fitting an important

76:17 part of issuing hearing protection devices?

76:19 - 76:19 Crossley, Cynthia 2020-09-21

76:19 A. Yeah, it was important. Re: [76:19 to 76:19]

Pltf Obj Vague; 702; 

77:07 - 77:10 Crossley, Cynthia 2020-09-21

77:07 Q. Okay. So if you had not actually Re: [77:07 to 77:10]

77:08 fit the blue Quattros HPD in Mr. Keefer's ears, Pltf Obj Leading 

77:09 the note here wouldn't say fitted; correct?

77:10 A. Correct.

77:11 - 77:13 Crossley, Cynthia 2020-09-21

77:11 Q. And so you would have actually Re: [77:11 to 77:13]

77:12 put the blue Quattros in Mr. Keefer's ears per Pltf Obj Leading

77:13 this note; correct?

77:15 - 77:16 Crossley, Cynthia 2020-09-21

77:15 A. It may not have been me, it may

77:16 have been the technician.

78:03 - 78:08 Crossley, Cynthia 2020-09-21

78:03 Q. So if the technician had fitted Re: [78:03 to 78:08]

78:04 the blue Quattros in Mr. Keefer's ears, would Pltf Obj compound; vague

78:05 you have seen that yourself or would the

78:06 technician have given you a note that that is

78:07 what they had done --

78:08 A. Yes.

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79:08 - 79:13 Crossley, Cynthia 2020-09-21

79:08 Q. But you wouldn't have written Re: [79:08 to 79:13]

79:09 this note: Fitted, issued, and instructed in Pltf Obj Leading

79:10 the use of blue Quattros HPD, unless there had

79:11 been some indication to you somehow that that

79:12 had actually occurred; correct?

79:13 A. Correct.

79:16 - 79:20 Crossley, Cynthia 2020-09-21

79:16 Q. And if somebody had told you that Re: [79:16 to 79:20]

79:17 they fitted, issued, and instructed Mr. Keefer Pltf Obj Leading

79:18 in the use of blue Quattros HPD, you would have

79:19 understood that to mean they had actually put

79:20 the blue Quattros in Mr. Keefer's ears?

80:06 - 80:12 Crossley, Cynthia 2020-09-21

80:06 A. So you're asking me if that -- Re: [80:06 to 80:12]

80:07 what -- What I'm understanding is that you're Pltf Obj Vague that

80:08 asking me if that actually occurred?

80:09 Q. Correct.

80:10 A. I'm telling you that based on

80:11 what I had, the information that I had at the

80:12 time I wrote this, is that it occurred.

80:13 - 80:16 Crossley, Cynthia 2020-09-21

80:13 Q. And when somebody says they Re: [80:13 to 80:16]

80:14 fitted earplugs in a particular soldier, that Pltf Obj Leading; 702

80:15 means they put the earplugs in the soldier's

80:16 ears; correct?

80:20 - 81:07 Crossley, Cynthia 2020-09-21

80:20 Q. Ms. Crossley, just to make sure Re: [80:20 to 81:07]

80:21 we're clear, I'm asking you to interpret for us Pltf Obj Incomplete

80:22 what fitted means in the context of this note designation; foundation; 602;

80:23 that you authored? 702

80:24 A. Fitted would mean that someone

80:25 assessed the ears and gave them a pair of

81:01 earplugs, with instructions on how to use them

81:02 based on what they determined was the correct

81:03 size or whatever.

81:04 Now, blue Quattros is one of

81:05 those earplugs that's a one-size-fits-all.

81:06 Q. So do one-size-fits-all earplugs

81:07 work in every soldier?

81:10 - 81:15 Crossley, Cynthia 2020-09-21

81:10 A. Not every -- Somebody might have Re: [81:10 to 81:15]

81:11 an ear that's too big and might have to go to Pltf Obj 802;805;

81:12 have their earplugs made specifically for them. nonresponsive (81:13-81:15); 

81:13 And they would have told me that they needed

81:14 that, and then I would have written the

81:15 consult.

81:16 - 81:21 Crossley, Cynthia 2020-09-21

81:16 Q. And if the person who had Re: [81:16 to 81:21]

81:17 actually fitted the blue Quattros in Mr. Pltf Obj 602; 611; leading;

81:18 Keefer's ears had had any issues getting an foundation

81:19 adequate fit, you would have expected them to

81:20 obtain that additional consult or attempt

81:21 different earplugs; is that correct?

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81:24 - 82:05 Crossley, Cynthia 2020-09-21

81:24 A. The technician would have told Re: [81:24 to 82:05]

81:25 me: Ms. Crossley, you're going to have to Pltf Obj 602; 611; leading;

82:01 consult this one for earplugs. foundation

82:02 Q. And if there had been a consult

82:03 like that, you would have -- would you have

82:04 included that in your notes?

82:05 A. Yes.

82:07 - 82:08 Crossley, Cynthia 2020-09-21

82:07 Q. And there's no such notes here; Re: [82:07 to 82:08]

82:08 is that right? Pltf Obj 611; leading; vague 

82:10 - 82:15 Crossley, Cynthia 2020-09-21

82:10 A. Right. Re: [82:10 to 82:15]

82:11 Q. And the next portion of this note Pltf Obj 602; 702; 

82:12 here, where it says: Soldier demonstrated back

82:13 correct use, what does that mean?

82:14 A. It means that he demonstrated his

82:15 ability to correctly insert the earplug.

82:16 - 82:18 Crossley, Cynthia 2020-09-21

82:16 Q. And so per this note, Mr. Keefer Re: [82:16 to 82:18]

82:17 would have put the earplugs in his ears showing Pltf Obj 602; 702

82:18 that he understood the instructions?

82:22 - 83:01 Crossley, Cynthia 2020-09-21

82:22 A. That's what it -- That's what the Re: [82:22 to 83:01]

82:23 note says. Pltf Obj 611; leading; 

82:24 Q. And when you were drafting notes

82:25 like this, you tried to make them as accurate

83:01 as possible; correct?

83:03 - 83:03 Crossley, Cynthia 2020-09-21

83:03 A. Yes.

83:11 - 83:17 Crossley, Cynthia 2020-09-21

83:11 Q. Is one reason it's important to Re: [83:11 to 83:17]

83:12 chart as accurately as you can, because if an Pltf Obj 602; 

83:13 issue arises in the future, other audiologists

83:14 or occupational health nurses may look back at

83:15 the records to figure out what hearing

83:16 protection devices may have been used?

83:17 A. Yes.

84:21 - 84:23 Crossley, Cynthia 2020-09-21

84:21 In the rest of this note here,

84:22 what does WNL stand for?

84:23 A. Within normal limits.

85:03 - 85:09 Crossley, Cynthia 2020-09-21

85:03 Q. And what is a threshold Re: [85:03 to 85:09]

85:04 audiogram? Pltf Obj 702

85:05 A. A threshold audiogram is just a

85:06 way of charting what you did in a manner that

85:07 you can get paid for it. It's -- It's a way of

85:08 giving the coders what they need to bill for

85:09 that test.

85:10 - 85:20 Crossley, Cynthia 2020-09-21

85:10 Q. Okay. And what is an ear

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 122 of 305
85:11 protector attenuation measurement?

85:12 A. That is the process of

85:13 determining the size of the earplug.

85:14 Q. And did you --

85:15 A. That's -- That's the fitting

85:16 portion.

85:17 Q. So where it says: Ear protector

85:18 attenuation measurements, that is a reference

85:19 to fitting of the actual plugs?

85:20 A. Yes.

86:24 - 86:25 Crossley, Cynthia 2020-09-21

86:24 Q. Okay. I'm now going to mark Re: [86:24 to 86:25]

86:25 Exhibit 4. Does this medical record look Pltf Obj Object to use of

Exhibit # 4; Foundation;

hearsay; 602

87:01 - 87:05 Crossley, Cynthia 2020-09-21

87:01 familiar to you? Re: [87:01 to 87:05]

87:02 A. The form looks familiar. Whether Pltf Obj 602 (87:19-87:21); 

87:03 or not -- if you're asking me does it look

87:04 familiar because it's Mr. Keefer's? No, it

87:05 doesn't. But the form itself looks familiar.

87:06 - 88:02 Crossley, Cynthia 2020-09-21

87:06 Q. Is -- In the middle of the page, Re: [87:06 to 88:02]

87:07 towards the bottom right, there's a signature Pltf Obj Foundation; hearsay;

87:08 there. Is that your signature? 602

87:09 A. No, it's not. But I can tell you

87:10 whose it is.

87:11 Q. Whose signature is that?

87:12 A. That is Gary Tubbs.

87:13 Q. Who is Mr. Tubbs?

87:14 A. He was one of the technicians I

87:15 worked with.

87:16 Q. Okay. So is your understanding

87:17 of this form that it is a form that Gary Tubbs

87:18 would have completed and signed?

87:19 A. He signed it. And, you know,

87:20 because his signature is there, I would safely

87:21 say that he completed it.

87:22 Q. Go back to the form. There's a

87:23 date in the upper left-hand corner.

87:24 A. Uh-huh.

87:25 Q. Is it fair to say that says

88:01 October 10, 2007?

88:02 A. Yes.

88:03 - 88:08 Crossley, Cynthia 2020-09-21

88:03 Q. And was this a standard form that Re: [88:03 to 88:08]

88:04 technicians filled out as part of the annual Pltf Obj Foundation; hearsay;

88:05 audiological screens? 602

88:06 A. Yes. That was communicate --

88:07 that was one of the ways the technicians

88:08 communicated to the nurses.

88:09 - 88:12 Crossley, Cynthia 2020-09-21

88:09 Q. And so is it fair to say that Mr. Re: [88:09 to 88:12]

88:10 Tubbs would have had provided you with a copy Pltf Obj 602

88:11 of this form --

88:12 A. Yes.

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88:14 - 88:16 Crossley, Cynthia 2020-09-21

88:14 Q. -- prior to during your writing Re: [88:14 to 88:16]

88:15 of the notes we just reviewed? Pltf Obj Misstates

88:16 A. Yes.

88:17 - 88:24 Crossley, Cynthia 2020-09-21

88:17 Q. And if you go towards the middle Re: [88:17 to 88:24]

88:18 of the page, it says: Needs DD2215, yes, no, Pltf Obj Foundation; hearsay;

88:19 N/A. 602

88:20 Can you explain to the jury what

88:21 a DD2215 is?

88:22 A. A DD2215 is a baseline audiogram.

88:23 So he didn't need a baseline, that's why the no

88:24 is circled.

89:03 - 89:25 Crossley, Cynthia 2020-09-21

89:03 Q. And when it says: Needs DD2216, Re: [89:03 to 89:25]

89:04 what is that? Pltf Obj Foundation; hearsay;

89:05 A. That is an annual hearing test. 602

89:06 Q. And so it appears that Mr. Tubbs

89:07 has marked yes on this form?

89:08 A. Yes.

89:09 Q. And then the next line down, you

89:10 probably understand Mr. Tubbs' writing better

89:11 than I, but it appears there are three

89:12 different options here, or I guess how would

89:13 you interpret that next line by P?

89:14 A. He -- That he circled fit and

89:15 issue.

89:16 Q. And so what does that mean in the

89:17 context of this form, what does fit and

89:18 issue --

89:19 A. Excuse me. He also circled

89:20 provide vision screen, he circled fit and

89:21 issue.

89:22 Q. And so fit and issue appropriate

89:23 earplugs, that is what we were just discussing

89:24 on the prior form?

89:25 A. Yes.

90:01 - 90:04 Crossley, Cynthia 2020-09-21

90:01 Q. And that would have involved Re: [90:01 to 90:04]

90:02 selecting earplugs and fitting them into Mr. Pltf Obj Foundation; hearsay;

90:03 Keefer's ears? 602; 611; leading

90:04 A. Yes.

90:08 - 90:10 Crossley, Cynthia 2020-09-21

90:08 Q. Going down to the next line it Re: [90:08 to 90:10]

90:09 says fitted with. And what is selected there? Pltf Obj Foundation; hearsay;

90:10 A. Blue Quattros. 602;

90:11 - 90:15 Crossley, Cynthia 2020-09-21

90:11 Q. And so when you were authoring Re: [90:11 to 90:15]

90:12 the prior note that we reviewed in Exhibit 3, Pltf Obj Foundation; hearsay;

90:13 would you have been looking at this form to 602;

90:14 help you author that note?

90:15 A. Yes.

90:22 - 90:24 Crossley, Cynthia 2020-09-21

90:22 Q. And then for the DD2216? Re: [90:22 to 90:24]

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90:23 A. The DD2216, within normal limits, Pltf Obj Foundation; hearsay;

90:24 yes. 602;

90:25 - 90:25 Crossley, Cynthia 2020-09-21

90:25 Q. And where it says: Soldier Re: [90:25 to 90:25]

Pltf Obj Foundation; hearsay;

602;

91:01 - 91:02 Crossley, Cynthia 2020-09-21

91:01 verbalizes understanding of all points Re: [91:01 to 91:02]

91:02 discussed, what is marked there? Pltf Obj Foundation; hearsay;

602;

91:04 - 91:04 Crossley, Cynthia 2020-09-21

91:04 A. Yes. Re: [91:04 to 91:04]

Pltf Obj Foundation; hearsay;

602;

91:05 - 91:08 Crossley, Cynthia 2020-09-21

91:05 Q. When soldiers came in for their Re: [91:05 to 91:08]

91:06 annual audiograms, would they complete any sort Pltf Obj 602; compound; 611;

91:07 of intake forms or questionnaires as a part of leading; foundation;

91:08 that process? Incomplete disignation

91:10 - 91:11 Crossley, Cynthia 2020-09-21

91:10 A. Yes, they would have. But I -- I Re: [91:10 to 91:11]

91:11 don't recall what type. Pltf Obj 602; compound; 611;

leading; foundation

92:11 - 92:13 Crossley, Cynthia 2020-09-21

92:11 Q. Was there a form of some kind Re: [92:11 to 92:13]

92:12 that soldiers would fill out prior to getting Pltf Obj 602; foundation

92:13 their audiograms?

92:16 - 92:16 Crossley, Cynthia 2020-09-21

92:16 A. It -- All right. Ask me again.

92:17 - 92:25 Crossley, Cynthia 2020-09-21

92:17 Q. Would -- So when Mr. Keefer, you Re: [92:17 to 92:25]

92:18 know, arrived for his annual audiogram at Fort Pltf Obj 602; foundation; 

92:19 Benning --

92:20 A. Oh, yeah. Yeah. He -- They

92:21 would come in and they would fill out a form,

92:22 and the forms were all color coded; if it was

92:23 green, they were active duty, and so forth and

92:24 so on. And they would fill out their name,

92:25 Social Security number, date of birth, whether

93:01 - 93:08 Crossley, Cynthia 2020-09-21

93:01 or not they wore glasses, and leading questions Re: [93:01 to 93:08]

93:02 that would show us where we needed to go next Pltf Obj Foundaton; hearsay;

93:03 when we actually got down to brass tacks and 602

93:04 did the screening portion.

93:05 Q. Would those forms include

93:06 questions like which type of hearing protection

93:07 devices were being used by the soldier?

93:08 A. Yes.

93:20 - 93:23 Crossley, Cynthia 2020-09-21

93:20 Q. Did the form that soldiers would Re: [93:20 to 93:23]

93:21 fill out include any questions regarding Pltf Obj Foundation; 602;

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93:22 whether the soldier was having issues hearing

93:23 or was hearing ringing or buzzing or crickets?

94:01 - 94:08 Crossley, Cynthia 2020-09-21

94:01 A. Not on the initial form. That Re: [94:01 to 94:08]

94:02 would come on the audiological hearing test Pltf Obj 602; foundation; 

94:03 form.

94:04 Q. And so when you say it would come

94:05 on the audiological hearing test form, was that

94:06 a question that the person administering the

94:07 audiogram asked the soldier?

94:08 A. Yes.

94:13 - 94:17 Crossley, Cynthia 2020-09-21

94:13 Q. I'm going to mark as Exhibit 6. Re: [94:13 to 94:17]

94:14 Are you familiar with this form? Pltf Obj Foundation; 602

94:15 A. I am familiar with the form.

94:16 Q. And what is the form called?

94:17 A. That is a DD2216.

94:23 - 95:02 Crossley, Cynthia 2020-09-21

94:23 Q. And can you explain to the jury Re: [94:23 to 95:02]

94:24 again what the DD Form 2216 is? Pltf Obj Foundation; 602

94:25 A. That is an annual medical

95:01 surveillance test -- I mean, that is an annual

95:02 hearing test form.

95:13 - 95:21 Crossley, Cynthia 2020-09-21

95:13 Q. Ms. Crossley, would you have Re: [95:13 to 95:21]

95:14 reviewed Mr. Keefer's audiometry results as the Pltf Obj Foundation; 602

95:15 part of generating the medical record notes

95:16 that we reviewed in Exhibit 3?

95:17 A. Yes.

95:18 Q. And was it part of your practice,

95:19 as an occupational health nurse, to review the

95:20 results of audiometry like this?

95:21 A. Yes.

96:21 - 96:25 Crossley, Cynthia 2020-09-21

96:21 Q. And in terms of your review of Re: [96:21 to 96:25]

96:22 the results of this to determine whether any Pltf Obj Foundation; Compound;

96:23 soldier needs a follow-up audiogram or needs a 611; leading; vague; 

96:24 referral to an audiologist, you would do that

96:25 on a regular basis; correct?

97:01 - 97:01 Crossley, Cynthia 2020-09-21

97:01 A. Yes. Re: [97:01 to 97:01]

Pltf Obj Foundation; Compound;

611; leading; vague; 

97:03 - 97:08 Crossley, Cynthia 2020-09-21

97:03 Q. And when you were drafting the Re: [97:03 to 97:08]

97:04 notes for Mr. Keefer's October 10th medical Pltf Obj 611; leading;

97:05 records, you would have been interpreting these Compound; vague; Foundation

97:06 audiometry test results to determine whether a

97:07 follow-up exam was needed or referral to an

97:08 audiologist was required?

97:10 - 97:22 Crossley, Cynthia 2020-09-21

97:10 A. Yes. Re: [97:10 to 97:22]

97:11 Q. So if we look here where it says Pltf Obj 702; 602; foundation;

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 126 of 305
97:12 current audiogram, date: 10 October 2007. hearsay

97:13 A. Yes.

97:14 Q. That's the same date as the

97:15 medical record note that you authored; correct?

97:16 A. Yes.

97:17 Q. And it's the same date as the

97:18 handwritten form that we reviewed that was

97:19 signed by Mr. Tubbs; is that correct?

97:20 A. Yes.

97:21 Q. Can you explain what the results

97:22 are for the current audiogram listed here?

97:24 - 97:25 Crossley, Cynthia 2020-09-21

97:24 Q. In a general sense, explain to Re: [97:24 to 97:25]

97:25 the jury what these -- these numbers mean? Pltf Obj 702; 602; foundation;

hearsay

98:07 - 98:11 Crossley, Cynthia 2020-09-21

98:07 A. As a nurse, the first thing I Re: [98:07 to 98:11]

98:08 would do is I would look at block D, and it Pltf Obj hearsay; Foundation;

98:09 would tell me if there was a significant 602

98:10 threshold shift. The computer program tells me

98:11 that. I don't make that judgment.

98:16 - 98:25 Crossley, Cynthia 2020-09-21

98:16 A. L -- do you see the little block Re: [98:16 to 98:25]

98:17 within block D? L is the left ear, R is the Pltf Obj 702; hearsay;

98:18 right ear. One means no significant threshold Foundation; 602

98:19 shift. Just to the right of that little block

98:20 it says 1-no, 2-yes. L1 is no significant

98:21 threshold shift. R1, no significant threshold

98:22 shift. So there was no significant threshold

98:23 shift in either ear.

98:24 Line one, where it says -- to the

98:25 right of current audiogram date, 10 October

99:01 - 99:02 Crossley, Cynthia 2020-09-21

99:01 2007, you've got the left ear and the right ear Re: [99:01 to 99:02]

99:02 scores. Pltf Obj 702; hearsay;

Foundation; 602

99:04 - 99:16 Crossley, Cynthia 2020-09-21

99:04 A. If you've got a score of 25 and Re: [99:04 to 99:16]

99:05 less, the test is normal -- the score is Pltf Obj 702; Foundation; 602

99:06 normal. He's got one block at the 3000

99:07 megahertz -- at the 3000 block -- where it says

99:08 3000, and then underneath that is 30. That's 5

99:09 over the high normal of 25. But it's -- two

99:10 blocks down there's a 10. The difference, even

99:11 though the -- this 30, which is 5 points over

99:12 normal, the difference between his baseline

99:13 that was done in March of '07 is only ten

99:14 points. That ten points means that it's not

99:15 significant enough to flag him for another

99:16 test.

101:02 - 101:04 Crossley, Cynthia 2020-09-21

101:02 Q. And for this audiogram for Mr. Re: [101:02 to 101:04]

101:03 Keefer, no significant threshold shifts were Pltf Obj 702; 611; leading;

101:04 identified; is that correct? Foundation; 602

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101:06 - 101:06 Crossley, Cynthia 2020-09-21

101:06 A. That's correct. Re: [101:06 to 101:06]

Pltf Obj 702; 611; leading;

Foundation; 602

101:07 - 101:11 Crossley, Cynthia 2020-09-21

101:07 Q. Okay. And if we go to the box Re: [101:07 to 101:11]

101:08 marked G, type of personal hearing protection Pltf Obj Foundation; 602; 

101:09 used, what does this box reflect and can you

101:10 describe what this -- what this box is used to

101:11 record?

101:16 - 101:25 Crossley, Cynthia 2020-09-21

101:16 Q. Ms. Crossley, do you understand Re: [101:16 to 101:25]

101:17 how technicians and individuals completing the Pltf Obj Foundation; 602; 

101:18 audiogram testing would have filled out this

101:19 question or answered this question on this

101:20 form?

101:21 A. They would have asked the soldier

101:22 what kind of earplug he used. And the earplug

101:23 answer -- the answer to that is six. Well,

101:24 blue Quattros earplugs are not listed here, so

101:25 that would have been listed as an other.

102:01 - 102:09 Crossley, Cynthia 2020-09-21

102:01 Q. Okay. And under the box marked Re: [102:01 to 102:09]

102:02 remarks, it says: Steady noise EXP. Pltf Obj Foundation; 602; 

102:03 Do you know what the EXP stands

102:04 for?

102:05 A. Exposure. Noise -- That would

102:06 stand for steady noise exposure, time-weighted

102:07 average dBA.

102:08 Q. And then what was inputted in

102:09 this form for Mr. Keefer?

102:11 - 102:17 Crossley, Cynthia 2020-09-21

102:11 A. The computer entered that. It Re: [102:11 to 102:17]

102:12 says: Not entered; impulse noise exposure dBP, Pltf Obj Foundation; 602; 

102:13 120 to 140. Other HPD: Quad-flange, health

102:14 education provided, HPD pre- and H1.

102:15 HPD PREV fit, I'm not sure what

102:16 the PREV alludes to. But an H1 follows that,

102:17 and H1 is a normal hearing test.

104:03 - 104:07 Crossley, Cynthia 2020-09-21

104:03 Q. So in terms of the technicians or Re: [104:03 to 104:07]

104:04 individuals conducting the audiometry testing, Pltf Obj 602; 611; leading 

104:05 your testimony is that during the -- that

104:06 process, they would have asked Mr. Keefer what

104:07 type of hearing protection he used; correct?

104:09 - 104:12 Crossley, Cynthia 2020-09-21

104:09 A. At some time. Re: [104:09 to 104:12]

104:10 Q. They would have recorded that Pltf Obj 602; 611; leading

104:11 information as part of the audiometry testing?

104:12 A. Yes.

104:19 - 104:24 Crossley, Cynthia 2020-09-21

104:19 Q. And what was the role of a Re: [104:19 to 104:24]

104:20 technician in the audiometry testing? Pltf Obj 602; foundation; 

104:21 A. Well, she -- She gave the hearing

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104:22 test.

104:23 Q. And what does the hearing test

104:24 consist of?

105:01 - 105:08 Crossley, Cynthia 2020-09-21

105:01 A. The soldier is put in the booth, Re: [105:01 to 105:08]

105:02 he's required to wear earphones that speak to Pltf Obj 602; foundation; 

105:03 him and tell him what to do, and it generates

105:04 the tones that they have to identify.

105:05 Q. And then the data, that gets

105:06 recorded, for example, in the section current

105:07 audiogram --

105:08 A. Yes.

105:23 - 106:02 Crossley, Cynthia 2020-09-21

105:23 Q. And during the course of that Re: [105:23 to 106:02]

105:24 process, you would have used the paperwork Pltf Obj 611; leading; 602;

105:25 generated by each one of those individuals to foundation

106:01 draft the notes that you wrote; correct?

106:02 A. Correct.

107:10 - 107:25 Crossley, Cynthia 2020-09-21

107:10 Q. I'm going to mark as Exhibit 8. Re: [107:10 to 107:25]

107:11 This is a medical record dated October 27, Pltf Obj 602; 611; leading;

107:12 2008. Did you author this medical record? foundation;

107:13 A. Yes.

107:14 Q. And the clinic listed here is

107:15 Occupational Health FBGA?

107:16 A. Yes.

107:17 Q. And the reason provided for this

107:18 visit was occupational health fitness exam?

107:19 A. Yes.

107:20 Q. Do you have any recollection of

107:21 this exam?

107:22 A. No.

107:23 Q. Okay. If we go back to the

107:24 primary document, it says the reason for

107:25 appointment, annual screening. Do you see

108:01 - 108:02 Crossley, Cynthia 2020-09-21

108:01 that? Re: [108:01 to 108:02]

108:02 A. Yes. Pltf Obj 602; 611; leading;

foundation

108:03 - 108:08 Crossley, Cynthia 2020-09-21

108:03 Q. And if we scroll down the page,

108:04 where it says screening, written by, so would

108:05 you have drafted this portion of the medical

108:06 record?

108:07 A. I would -- The one -- That

108:08 portion you highlighted, yes.

109:03 - 109:05 Crossley, Cynthia 2020-09-21

109:03 Q. And can you read what Mr. Tubbs Re: [109:03 to 109:05]

109:04 has noted as the most common health/safety Pltf Obj foundation; 602; 802;

109:05 hazards for Mr. Keefer? 805

109:08 - 109:21 Crossley, Cynthia 2020-09-21

109:08 A. Soldier while working at Fort Re: [109:08 to 109:21]

109:09 Benning, Georgia, include but are not limited Pltf Obj foundation; 602; 802;

109:10 to noise from weaponry, equipment, and tactical 805

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109:11 vehicles; eye hazards due to flying projectiles

109:12 during use of tools, land navigation, wind,

109:13 dust, and sand exposures, weather extremes,

109:14 slip, trip, fall, and foot hazards and heavy

109:15 rolling equipment, petroleum oils, lubricants,

109:16 fuels, respiratory irritants, dust, vehicular

109:17 exhaust, heavy physical stress, infections from

109:18 airborne and bloodborne infections and

109:19 communicable diseases, such as hepatitis, HIV,

109:20 TB, measles, mumps, rubella, chicken pox,

109:21 tetanus, et cetera.

110:06 - 110:08 Crossley, Cynthia 2020-09-21

110:06 Is it common for noise to be Re: [110:06 to 110:08]

110:07 listed as the first common health safety hazard Pltf Obj 602; vague; 611;

110:08 for soldiers? leading; foundation

110:10 - 110:17 Crossley, Cynthia 2020-09-21

110:10 A. It is under MOS. Re: [110:10 to 110:17]

110:11 Q. And can you explain that further? Pltf Obj vague; 

110:12 A. Well, medical personnel, are --

110:13 they are exposed to noise, but they are not --

110:14 if you're a 68 Whiskey, if you're a medic,

110:15 you're not exposed to the noise at the same

110:16 level of noise as often as an 11 Bravo or a

110:17 foot soldier is.

111:12 - 111:22 Crossley, Cynthia 2020-09-21

111:12 Q. Okay. And if we go to the second Re: [111:12 to 111:22]

111:13 page of this record, where it says: A/P, Pltf Obj Foundaton; 602; 

111:14 written by Crossley, Cynthia.

111:15 A. Uh-huh.

111:16 Q. What does A/P stand for?

111:17 A. That stands for assessment and

111:18 plan.

111:19 Q. Okay. And what was the

111:20 assessment and plan written here?

111:21 A. The assessment was the need for

111:22 an audiogram and a screening of vision.

112:02 - 112:12 Crossley, Cynthia 2020-09-21

112:02 Q. And under follow-up, what did you Re: [112:02 to 112:12]

112:03 write? Pltf Obj Foundaton; 602; 

112:04 A. Follow up in twenty-four hours in

112:05 the occupational health at Fort Benning,

112:06 Georgia, clinic or sooner if there are

112:07 problems, comments for repeat hearing test.

112:08 Q. And so what -- What does this

112:09 note mean?

112:10 A. To me, it means we wanted to see

112:11 him again within twenty-four hours for a

112:12 follow-up on his hearing test.

112:13 - 112:14 Crossley, Cynthia 2020-09-21

112:13 Q. And so what would you have

112:14 reviewed to arrive at that disposition?

112:16 - 112:25 Crossley, Cynthia 2020-09-21

112:16 A. The hearing test that was done

112:17 that day.

112:18 Q. So you would have reviewed the

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112:19 audiogram?

112:20 A. Yes.

112:21 Q. And then under discussed, it

112:22 says: Diagnosis: Medication, treatments,

112:23 alternatives, potential side effects with

112:24 patient who indicated understanding.

112:25 A. Yes.

115:08 - 115:13 Crossley, Cynthia 2020-09-21

115:08 In connection with this test, the

115:09 record indicates that a follow-up test was

115:10 requested. Would you, as part of the education

115:11 component of the occupational health screening,

115:12 have discussed any aspect of using hearing

115:13 protection devices?

115:15 - 115:16 Crossley, Cynthia 2020-09-21

115:15 A. Not specifically. Re: [115:15 to 115:16]

115:16 Q. Would you have talked in general? Pltf Obj Vague; 

115:18 - 116:08 Crossley, Cynthia 2020-09-21

115:18 A. Yeah, just in general. I would

115:19 -- I might have mentioned it in general, but I

115:20 wouldn't have been specific at that time,

115:21 because I wouldn't have the complete results.

115:22 I mean, I can't make a specific recommendation

115:23 based on partial results. And all you would

115:24 have at that time would be partial results.

115:25 You wouldn't have the results of the hearing

116:01 test that he would have to come back and do

116:02 again.

116:03 Q. So until you receive the results

116:04 of the follow-up exam, you couldn't reach any

116:05 particular conclusions?

116:06 A. Yeah. I would not be able to --

116:07 provide any specificity as to recommendations

116:08 based on just what you've got here.

116:12 - 116:25 Crossley, Cynthia 2020-09-21

116:12 Q. I'm going to mark as Exhibit 9. Re: [116:12 to 116:25]

116:13 This, again, is a DD Form 2216. Pltf Obj Foundation; 602; 802;

116:14 A. Yes. 805; vague (116:25-117:03) 

116:15 Q. Do you see that, Ms. Crossley?

116:16 A. Yes.

116:17 Q. And under the current audiogram

116:18 section --

116:19 A. Uh-huh.

116:20 Q. -- do you see the date of this

116:21 audiogram?

116:22 A. I do.

116:23 Q. And what do you see as the date?

116:24 A. 27 October 208 (sic).

116:25 Q. Based on the prior record we just

117:01 - 117:03 Crossley, Cynthia 2020-09-21

117:01 reviewed, is it your understanding that this is Re: [117:01 to 117:03]

117:02 the audiogram that would have been referenced Pltf Obj Foundation; 602; 802;

117:03 in the record? 805; vague (116:25-117:03) 

117:07 - 117:13 Crossley, Cynthia 2020-09-21

117:07 Q. In the medical record we were Re: [117:07 to 117:13]

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117:08 just looking at. Pltf Obj Foundation; 602; 802;

117:09 A. Yes. 805

117:10 Q. And on this medical record, if

117:11 you look at the significant threshold shift

117:12 section, section D, here -- right here, there

117:13 is a 2. What does that stand for?

117:15 - 117:20 Crossley, Cynthia 2020-09-21

117:15 A. That means in the left ear, there Re: [117:15 to 117:20]

117:16 was a significant shift in the hearing in the Pltf Obj Foundation; 602; 802;

117:17 left ear. 805

117:18 Q. And looking at this record, can

117:19 you tell where the shift occurred?

117:20 A. Yes. That it occurred --

117:22 - 117:23 Crossley, Cynthia 2020-09-21

117:22 A. -- at 2 and at the -- at the 2 Re: [117:22 to 117:23]

117:23 and the 4 range. Pltf Obj Foundation; 602; 802;

805

118:06 - 118:11 Crossley, Cynthia 2020-09-21

118:06 Q. If I went in for an audiological

118:07 test today and went in for a repeat of that

118:08 test tomorrow, is it possible that my results

118:09 would shift around just by virtue of the

118:10 testing conditions and other aspects of the

118:11 test?

118:13 - 118:24 Crossley, Cynthia 2020-09-21

118:13 A. Yes. That's possible. Re: [118:13 to 118:24]

118:14 Q. And here in section G, where it Pltf Obj Foundation; 602; 802;

118:15 says: Type of personal hearing protection 805; 611; leading

118:16 used.

118:17 A. Uh-huh.

118:18 Q. This is, again, listed as an

118:19 other; correct?

118:20 A. Yes.

118:21 Q. And it is the case that, again,

118:22 as part of the standard annual audiogram,

118:23 individual soldiers were asked what kind of

118:24 hearing protection they used; correct?

119:01 - 119:04 Crossley, Cynthia 2020-09-21

119:01 A. Yes. Re: [119:01 to 119:04]

119:02 Q. And here, the person filling out Pltf Obj Foundation; 602; 802;

119:03 the form noted that Mr. Keefer uses other, six; 805

119:04 correct?

119:06 - 119:06 Crossley, Cynthia 2020-09-21

119:06 A. Yes. Re: [119:06 to 119:06]

Pltf Obj Foundation; 602; 802;

805

119:09 - 119:12 Crossley, Cynthia 2020-09-21

119:09 Q. And in the remarks section of Re: [119:09 to 119:12]

119:10 this form, again, we see it says: Other HPD, Pltf Obj Foundation; 602; 802;

119:11 quad-flange? 805

119:12 A. Uh-huh.

119:13 - 119:17 Crossley, Cynthia 2020-09-21

119:13 Q. Is your understanding that the Re: [119:13 to 119:17]

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119:14 technician would have asked Mr. Keefer what Pltf Obj Foundation; 602; 802;

119:15 kind of hearing protection he used and then 805

119:16 noted it in the form?

119:17 A. Yes.

120:23 - 121:03 Crossley, Cynthia 2020-09-21

120:23 Q. In general, when individuals are Re: [120:23 to 121:03]

120:24 administering the audiograms and they are Pltf Obj 602

120:25 providing health education, is it your

121:01 understanding that they would be providing

121:02 education about the use of hearing protection

121:03 devices?

121:05 - 121:05 Crossley, Cynthia 2020-09-21

121:05 A. Yes. Re: [121:05 to 121:05]

Pltf Obj 602

121:22 - 122:01 Crossley, Cynthia 2020-09-21

121:22 Q. In the medical records, we saw Re: [121:22 to 122:01]

121:23 the referral for a follow-up test. To arrive Pltf Obj 611; Leading; 

121:24 at that conclusion, you would have reviewed

121:25 this data; correct?

122:01 A. Right.

122:11 - 122:13 Crossley, Cynthia 2020-09-21

122:11 Q. And when a soldier returned for a

122:12 follow-up exam, would you review those records?

122:13 A. Yes.

122:18 - 122:25 Crossley, Cynthia 2020-09-21

122:18 Q. I'd like to mark as Exhibit 10. Re: [122:18 to 122:25]

122:19 This is a medical record dated October 28, Pltf Obj Foundation; 602; 802;

122:20 2008. Do you see that? 805; 

122:21 A. Yes.

122:22 Q. And this medical record appears

122:23 to have been authored by a Lois Cain?

122:24 A. Yes.

122:25 Q. Who is Lois Cain?

123:01 - 123:17 Crossley, Cynthia 2020-09-21

123:01 A. She's one of the occupational Re: [123:01 to 123:17]

123:02 health nurses. Pltf Obj Foundation; 602; 802;

123:03 Q. So she was one of your 805; 

123:04 colleagues?

123:05 A. Yes.

123:06 Q. And the reason for the visit here

123:07 is listed as: Ears, hearing exam, following

123:08 ABN normal screening?

123:09 A. Yes.

123:10 Q. What is your understanding for

123:11 the reason of this visit?

123:12 A. It's a follow-up due to the STS

123:13 on the -- his previous hearing test.

123:14 Q. And ABN in this context, does

123:15 that refer to anything specifically?

123:16 A. Abnormal following - Ears/Hearing

123:17 exam following abnormal hearing screening.

123:25 - 123:25 Crossley, Cynthia 2020-09-21

123:25 Q. And under tests, laboratory Re: [123:25 to 123:25]

Pltf Obj Foundation; 602; 802;

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805; 

124:01 - 124:06 Crossley, Cynthia 2020-09-21

124:01 studies here -- Re: [124:01 to 124:06]

124:02 A. Uh-huh. Pltf Obj Foundation; 602; 802;

124:03 Q. -- under audiometry. 805; 

124:04 A. Right.

124:05 Q. So can you read what that says?

124:06 A. Yes.

124:08 - 124:10 Crossley, Cynthia 2020-09-21

124:08 A. Audiometry, DD2216 with H1 on Re: [124:08 to 124:10]

124:09 follow-up number one shows no STS. Counseled Pltf Obj Foundation; 602; 802;

124:10 on findings and to repeat audio in one year. 805; 

124:24 - 125:01 Crossley, Cynthia 2020-09-21

124:24 So this says: Audiometry DD2216, Re: [124:24 to 125:01]

124:25 that's in reference to an annual audiogram; Pltf Obj Foundation; 602; 802;

125:01 correct? 805; 

Re: [125:01 to 125:04]

Pltf Obj Foundation; 602; 802;

805; 

125:01 - 125:04 Crossley, Cynthia 2020-09-21

125:01 correct? Re: [124:24 to 125:01]

125:02 A. Yes. Pltf Obj Foundation; 602; 802;

125:03 Q. And the W/H1, what would that 805; 

125:04 mean?

Re: [125:01 to 125:04]

Pltf Obj Foundation; 602; 802;

805; 

125:06 - 125:24 Crossley, Cynthia 2020-09-21

125:06 A. With H1. H1 being a normal Re: [125:06 to 125:24]

125:07 hearing test. Pltf Obj Foundation; 602; 802;

125:08 Q. On follow-up number one, would 805; vague

125:09 that be in connection with a follow-up

125:10 audiogram?

125:11 A. Yes. The -- As he was instructed

125:12 in the previous note, to return within

125:13 twenty-four hours, that refers to number one to

125:14 that test.

125:15 Q. And the no STS, what does that --

125:16 A. That means there was no

125:17 significant -- no -- there were no significant

125:18 -- There was not a significant threshold shift

125:19 on the follow-up test.

125:20 Q. And how common was it, in your

125:21 experience, for a soldier to have a significant

125:22 threshold shift on one day and then for the

125:23 next day, for there to be no significant

125:24 threshold shift?

126:01 - 126:14 Crossley, Cynthia 2020-09-21

126:01 A. It -- It was fairly common. Re: [126:01 to 126:14]

126:02 Q. And are you familiar with the Pltf Obj Foundation; 602; 802;

126:03 reasons why that could occur? 805; vague

126:04 A. Depending on what they did in the

126:05 previous -- in the twenty-four hours prior to

126:06 their abnormal hearing test, if they'd gone to

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126:07 a rock concert, if they had been to live X at a

126:08 firing range; you know, it runs the gamut.

126:09 But it -- You know, did they have

126:10 the sniffles and -- and had a little stuffiness

126:11 in their ears. It just runs the gamut. All --

126:12 A. lot of different reasons could have caused

126:13 them to have an abnormal test one day and a

126:14 perfectly normal test the next day.

128:25 - 128:25 Crossley, Cynthia 2020-09-21

128:25 Q. Yes. So looking across at -- So

129:01 - 129:13 Crossley, Cynthia 2020-09-21

129:01 can you explain to the jury what the reference Re: [129:01 to 129:13]

129:02 audiogram is? Pltf Obj 611; leading; 702

129:03 A. A reference audiogram is a

129:04 baseline by which we measure any significant

129:05 changes in the future. It's a method to follow

129:06 a person over time. And so --

129:07 Q. Is it --

129:08 A. Go ahead.

129:09 Q. No. You go ahead.

129:10 A. It -- It's just a way to follow

129:11 someone over a period of time.

129:12 Q. Why is it important to establish

129:13 a baseline for an individual's hearing?

129:15 - 129:25 Crossley, Cynthia 2020-09-21

129:15 A. If you do not establish a Re: [129:15 to 129:25]

129:16 baseline, and there is a loss in the future, Pltf Obj 611; leading; 702

129:17 but your baseline wasn't established until five

129:18 years after the person entered the service, you

129:19 don't know how much loss there could have been

129:20 between day one of their service and the five

129:21 years leading up to the time you established a

129:22 reference.

129:23 There's no way to determine the

129:24 amount of loss during the time that wasn't

129:25 monitored.

130:03 - 130:04 Crossley, Cynthia 2020-09-21

130:03 Is it possible that soldiers Re: [130:03 to 130:04]

130:04 enter the military already having hearing loss? Pltf Obj 602

130:06 - 130:06 Crossley, Cynthia 2020-09-21

130:06 A. Yes. Re: [130:06 to 130:06]

Pltf Obj 602

130:07 - 130:08 Crossley, Cynthia 2020-09-21

130:07 Q. And how often do you see soldiers Re: [130:07 to 130:08]

130:08 who enter the military with hearing loss? Pltf Obj 611; leading; 402

130:16 - 130:24 Crossley, Cynthia 2020-09-21

130:16 A. That's done at in-processing. Re: [130:16 to 130:24]

130:17 That's done at almost day one. When they get Pltf Obj Strike Nonresponsive

130:18 off that bus, they are tested so fast for (130:16-130:24)

130:19 hearing loss. And it's not that that would

130:20 necessarily disqualify them from service, but

130:21 you've got to establish what your loss -- what

130:22 your baseline was on the day you entered the

130:23 service, before you ever had any

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130:24 service-related noise exposure.

132:03 - 132:06 Crossley, Cynthia 2020-09-21

132:03 Q. And do you know whether the score Re: [132:03 to 132:06]

132:04 here for 3000, for example, of 20, on March 29, Pltf Obj 702; 602; foundation;

132:05 2007, is a normal score, a high score, or a low vague

132:06 score for a reference audiogram?

132:09 - 132:16 Crossley, Cynthia 2020-09-21

132:09 A. Anything 25 and lower is normal. Re: [132:09 to 132:16]

132:10 The lower the score, the better the hearing. Pltf Obj compound; vague; 

132:11 Q. And at a score of 30, that is

132:12 slightly above the threshold, you said, of 25;

132:13 but in this case, for example, because it's

132:14 only a shift of 10 it wouldn't count; is that

132:15 correct?

132:16 A. That's correct. It has to be --

132:19 - 132:20 Crossley, Cynthia 2020-09-21

132:19 A. It has to be a score of 15 or Re: [132:19 to 132:20]

132:20 more difference. Pltf Obj Vague

132:24 - 133:07 Crossley, Cynthia 2020-09-21

132:24 Q. I'm going to mark as Exhibit 11.

132:25 Ms. Crossley, do you know what this is a photo

133:01 of?

133:02 A. That's the blue quads ear hearing

133:03 protection.

133:04 Q. So in the earlier medical records

133:05 we looked at that reference the blue Quattro or

133:06 the quad-flange earplugs, are these the

133:07 earplugs being referenced?

133:09 - 133:09 Crossley, Cynthia 2020-09-21

133:09 A. Yes.

139:02 - 139:13 Crossley, Cynthia 2020-09-21

139:02 Q. When you issued any other

139:03 earplugs, whether it was the triple-flange or

139:04 single-flange, did you provide any written

139:05 instructions when you issued those other

139:06 earplugs?

139:07 A. No.

139:08 Q. Do you recall whether those

139:09 earplugs had packaging that contained any text

139:10 on them?

139:11 A. The ones that I recalled did not

139:12 have -- they were not packaged, they were just

139:13 individual earplugs.

141:09 - 141:13 Crossley, Cynthia 2020-09-21

141:09 Q. Based on your recollections or Re: [141:09 to 141:13]

141:10 the records we reviewed, do you have any reason Pltf Obj 602; 802; 805;

141:11 to believe that Lewis Keefer wore the mistates

141:12 dual-ended Combat Arms Earplugs in 2007 or

141:13 2008?

141:15 - 141:18 Crossley, Cynthia 2020-09-21

141:15 A. I cannot say from what I saw that Re: [141:15 to 141:18]

141:16 he did. From the information you've given me Pltf Obj 602; 802; 805;

141:17 to review, I cannot say he wore them based on mistates

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141:18 that.

142:07 - 142:10 Crossley, Cynthia 2020-09-21

142:07 Q. Of the records we reviewed, there Re: [142:07 to 142:10]

142:08 was nothing in those records to indicate that Pltf Obj Cumulative; 602; 802;

142:09 Mr. Keefer was using the Combat Arms Earplugs; 805; mistates

142:10 is that correct?

142:12 - 142:13 Crossley, Cynthia 2020-09-21

142:12 A. To the best of my recollection, Re: [142:12 to 142:13]

142:13 no. Pltf Obj Cumulative; 602; 802;

805; mistates

143:17 - 143:25 Crossley, Cynthia 2020-09-21

143:17 Q. And so in the first medical Re: [143:17 to 143:25]

143:18 record, there was a note of a shift, and then Pltf Obj vague; foundation;

143:19 there was a follow-up exam that said his 802; 805; 602

143:20 hearing was within normal limits; is that

143:21 correct?

143:22 A. Yes.

143:23 Q. And if Mr. Keefer had told you

143:24 that subjectively he was having difficulty

143:25 hearing, would that have been noted in the

144:01 - 144:01 Crossley, Cynthia 2020-09-21

144:01 records? Re: [144:01 to 144:01]

Pltf Obj vague; foundation;

802; 805; 602

144:03 - 144:10 Crossley, Cynthia 2020-09-21

144:03 A. Well, it may have been, you know. Re: [144:03 to 144:10]

144:04 I -- I believe it -- you know, that it would -- Pltf Obj vague; foundation;

144:05 would have been. 802; 805; 602

144:06 Q. And if Mr. Keefer had been

144:07 suffering from ringing in the ears at the time

144:08 of those appointments, would there have been a

144:09 note in the medical records of the ringing in

144:10 the ears or tinnitus?

144:12 - 144:17 Crossley, Cynthia 2020-09-21

144:12 A. Oh, yeah, there definitely would Re: [144:12 to 144:17]

144:13 have been on the hearing test. Pltf Obj 602

144:14 Q. Is it a standard part of the

144:15 annual hearing test to ask whether there was

144:16 ringing in the ear?

144:17 A. Yes. That's standard.

144:18 - 144:21 Crossley, Cynthia 2020-09-21

144:18 Q. And if a soldier noted that he Re: [144:18 to 144:21]

144:19 had been suffering from ringing in the ears, it Pltf Obj 611; leading; 602; 

144:20 would have been included in the records;

144:21 correct?

144:23 - 144:24 Crossley, Cynthia 2020-09-21

144:23 A. At some point, yes. In fact, the Re: [144:23 to 144:24]

144:24 hearing test may have been delayed. Pltf Obj 602

144:25 - 145:07 Crossley, Cynthia 2020-09-21

144:25 Q. If there was ringing in the ears? Re: [144:25 to 145:07]

145:01 A. Yeah. It could have been. It Pltf Obj Vague; 602; 

145:02 might not have been. It's all, you know, based

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145:03 on the report from the service member. I mean,

145:04 if he came in and he said, listen, I don't

145:05 believe I can pass this hearing test, the ring

145:06 nothing my ear is so bad today, we would have

145:07 deferred him to come back at a later time.

145:08 - 145:16 Crossley, Cynthia 2020-09-21

145:08 Q. The medical records we reviewed Re: [145:08 to 145:16]

145:09 today, do not contain any notes that Mr. Keefer Pltf Obj 602; 802; 805;

145:10 was suffering from ringing in the ears, do foundation

145:11 they?

145:12 A. Not that I saw.

145:13 Q. And the medical records we

145:14 reviewed today do not contain any notes

145:15 suggesting that Mr. Keefer was using the Combat

145:16 Arms Earplugs, do they?

145:18 - 145:18 Crossley, Cynthia 2020-09-21

145:18 A. Not that I saw. Re: [145:18 to 145:18]

Pltf Obj 602; 802; 805;

foundation

146:07 - 146:11 Crossley, Cynthia 2020-09-21

146:07 Q. And would it be important if you Re: [146:07 to 146:11]

146:08 were showing a soldier how to use the Combat Pltf Obj 611; leading; 602;

146:09 Arms Earplugs to ensure that they, in fact, fit 702

146:10 in that soldier's ears?

146:11 A. Well, yeah.

146:13 - 146:21 Crossley, Cynthia 2020-09-21

146:13 Q. And if you had been fitting a Re: [146:13 to 146:21]

146:14 soldier for the Combat Arms Earplugs, when you Pltf Obj 602; compound

146:15 inserted the earplugs into the soldier's ears,

146:16 you would have ensured that you could get an

146:17 adequate seal?

146:18 A. Yes. And that's based on your

146:19 statement of if, if -- if -- if they had been

146:20 fitted. But I'm not sure that they were fitted

146:21 in my clinic.

147:05 - 147:07 Crossley, Cynthia 2020-09-21

147:05 Q. As far as you're aware, Mr. Re: [147:05 to 147:07]

147:06 Keefer was never fitted with the Combat Arms Pltf Obj 611; leading; 602; 

147:07 Earplugs?

147:09 - 147:10 Crossley, Cynthia 2020-09-21

147:09 A. As far as the information that I Re: [147:09 to 147:10]

147:10 have seen today, no. Pltf Obj 611; leading; 602; 

155:18 - 155:22 Crossley, Cynthia 2020-09-21

155:18 Q. Okay. And you have no reason to

155:19 disagree with Mr. Keefer's testimony that he

155:20 did not use a quad-flange earplug, he only used

155:21 the Combat Arms Earplug and occasionally a

155:22 foamy; correct?

155:24 - 156:02 Crossley, Cynthia 2020-09-21

155:24 A. No. I don't agree with that, Re: [155:24 to 156:02]

155:25 because I know what we issued. If he left them Pltf Obj Strike Nonresponsive

156:01 on the desk, that was his decision. I have no (155:24-156:2)

156:02 control over what he uses, period.

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156:18 - 156:21 Crossley, Cynthia 2020-09-21

156:18 Q. No. What I'm asking is if you

156:19 have any basis to disagree with his testimony,

156:20 that he only used the Combat Arms Earplug and

156:21 occasionally a foamy?

156:23 - 157:01 Crossley, Cynthia 2020-09-21

156:23 A. I'm -- I am -- You're going to Re: [156:23 to 157:01]

156:24 have to rephrase that in a way that I feel I'm Pltf Obj Strike Nonresponsive

156:25 not -- I don't feel like I'm having words put (156:23-157:1)

157:01 in my mouth.

159:09 - 159:11 Crossley, Cynthia 2020-09-21

159:09 Q. So you can't testify under oath

159:10 today that those remarks mean that Mr. Keefer

159:11 said: I'm using the quad-flange plug; right?

159:13 - 159:24 Crossley, Cynthia 2020-09-21

159:13 A. If -- If the technician tested Re: [159:13 to 159:24]

159:14 him as -- They're sitting there as the Pltf Obj Strike Nonresponsive

159:15 technicians are asking those questions, and (159:13-159:24)

159:16 they ask them specifically what kind of

159:17 earplugs they use.

159:18 Now, from what Mr. Keefer said,

159:19 to what the technician put in the computer, I

159:20 don't know. But I can tell you that that's

159:21 what the computer -- that's what -- the

159:22 computer marked it as an other and the

159:23 technician said it was a blue quad. That's

159:24 what I can tell you.

161:03 - 161:06 Crossley, Cynthia 2020-09-21

161:03 So you can't testify under oath

161:04 that because it says quad-flange in the remarks

161:05 that that means that Mr. Keefer was using a

161:06 quad-flange plug in his regular service?

161:08 - 161:09 Crossley, Cynthia 2020-09-21

161:08 A. Only that that's what he told the Re: [161:08 to 161:09]

161:09 technician at the time. And, listen, I've lost Pltf Obj Strike Nonresponsive

(161:8-161-9)

161:21 - 161:25 Crossley, Cynthia 2020-09-21

161:21 Q. Ms. Crossley, it may be easiest

161:22 for us to look at this and try to figure this

161:23 out. If we can pull back up Exhibit Number 9.

161:24 If we could blow up the remarks

161:25 section that's there in the middle of the page.

162:01 - 162:09 Crossley, Cynthia 2020-09-21

162:01 Do you see, it says: Other HPD quad-flange,

162:02 positive STS?

162:03 That's the language we're talking

162:04 about; right?

162:05 A. Yes. Okay.

162:06 Q. The only question I'm really

162:07 asking is, you don't really know what the basis

162:08 for that information is? You weren't present

162:09 for that conversation, were you?

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162:11 - 162:17 Crossley, Cynthia 2020-09-21

162:11 A. I am -- I see the -- I see the Re: [162:11 to 162:17]

162:12 report. I see that it says there's -- that he Pltf Obj Strike Nonresponsive

162:13 uses quad-flange, he has a positive STS. I -- (162:11-162:17)

162:14 I have no reason to -- I'd be second-guessing

162:15 everybody in the Army, you know, if I couldn't

162:16 believe what at least this section of what I'm

162:17 seeing.

162:21 - 162:25 Crossley, Cynthia 2020-09-21

162:21 A. I just don't -- I don't see Re: [162:21 to 162:25]

162:22 anything that throws a red flag here for me as Pltf Obj Strike Nonresponsive

162:23 an occupational health nurse -- (162:21-162:25)

162:24 Q. All right.

162:25 A. -- that would make me think that

163:01 - 163:13 Crossley, Cynthia 2020-09-21

163:01 two people were lying or stretching the fact Re: [163:01 to 163:13]

163:02 about what type of earplugs this person was Pltf Obj Strike Nonresponsive

163:03 wearing -- reported wearing. (163:1-163:3) and (163:7) and

163:04 Q. Okay. So it's your testimony (162:09-163:10) and

163:05 that this information means this is what Mr. (163:12-163:13)

163:06 Keefer reported he was wearing?

163:07 A. Yes.

163:08 Q. Despite his deposition testimony?

163:09 A. At the time this test was

163:10 given --

163:11 Q. Okay.

163:12 A. -- this is what I understand he

163:13 reported wearing.

167:21 - 168:06 Crossley, Cynthia 2020-09-21

167:21 Q. Under Army protocols, you're not

167:22 qualified to conduct this audiogram, are you?

167:23 A. No. I was -- I was trained to

167:24 conduct audiograms.

167:25 Q. So you are a -- Well, maybe this

168:01 is new testimony. You are a certified hearing

168:02 technician?

168:03 A. No. I'm not a certified hearing

168:04 technician. But I went to the same course that

168:05 those hearing technicians went to every five

168:06 years.

208:12 - 208:15 Crossley, Cynthia 2020-09-21

208:12 Q. Ms. Crossley, you're aware that

208:13 there are multiple versions of the Combat Arms

208:14 Earplugs; correct?

208:15 A. Actually, no.

208:22 - 208:25 Crossley, Cynthia 2020-09-21

208:22 Q. Okay. I would like to mark as

208:23 Exhibit 22, so this first photograph here, do

208:24 you know what these are?

208:25 A. Those are the ones I'm used to

209:01 - 209:10 Crossley, Cynthia 2020-09-21

209:01 having seen, the Combat earplugs.

209:02 Q. And we were -- We were referring

209:03 to these as the dual-ended Combat Arms Earplugs

209:04 earlier; correct?

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209:05 A. I believe so.

209:06 Q. If we go to page two of this

209:07 document. Are you familiar with these at all?

209:08 A. I'm not familiar with either the

209:09 black or the yellow, and the red ones look a

209:10 little suspect to me too.

209:11 - 209:18 Crossley, Cynthia 2020-09-21

209:11 Q. Are you familiar with the --

209:12 A. I'll tell you, the red ones used

209:13 to be for people who had really large ear

209:14 canals. The black ones and the yellow ones,

209:15 and the red one here does not -- is not the

209:16 style I'm used to seeing for large ears -- for

209:17 large ear canals. And the other two I'm not

209:18 familiar with at all.

209:19 - 209:25 Crossley, Cynthia 2020-09-21

209:19 Q. And the stem here or the pistol

209:20 grip or the -- the part of the -- the sort of

209:21 beige part of the plugs, do those look familiar

209:22 at all?

209:23 A. I've never seen those, huh-uh.

209:24 Q. So I'll represent to you these

209:25 are another version of the Combat Arms

210:01 - 210:02 Crossley, Cynthia 2020-09-21

210:01 Earplugs.

210:02 A. Okay.

210:05 - 210:11 Crossley, Cynthia 2020-09-21

210:05 Q. Do these look familiar at all?

210:06 A. They do not.

210:07 Q. Again, I'll represent to you that

210:08 these are another version of the Combat Arms

210:09 Earplugs, again, that were not dual-ended. Do

210:10 you see this -- do you see the CAE?

210:11 A. I do. Uh-huh.

210:14 - 210:25 Crossley, Cynthia 2020-09-21

210:14 Q. Again, do these look familiar at

210:15 all?

210:16 A. No. Not familiar with those.

210:17 Q. Again, I'll represent to you

210:18 these are another version of the Combat Arms

210:19 Earplugs.

210:20 MR. GUNDERSON: Can we go back to

210:21 Exhibit 20, please?

210:22 Q. So earlier Mr. Barr was asking

210:23 you about the remark in here that refers to the

210:24 Combat Arms Earplug.

210:25 Do you see that?

211:01 - 211:25 Crossley, Cynthia 2020-09-21

211:01 A. Yes. Re: [211:01 to 211:25]

211:02 Q. This remark -- Or this note here Pltf Obj 611; leading 

211:03 doesn't indicate which version of the Combat

211:04 Arms Earplug was used, does it?

211:05 A. It sure doesn't.

211:06 Q. So from reading this record

211:07 alone, you don't know and can't make any

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211:08 inferences about whether this is referring to

211:09 the Combat Arms Version 2, the dual-ended plug,

211:10 or one of the other versions of the Combat

211:11 Arms, can you?

211:12 A. I cannot.

211:13 MR. GUNDERSON: Will you return

211:14 to Exhibit 21, please?

211:15 Q. A similar question about this

211:16 one. Again, Mr. Barr pointed you to the

211:17 language in here that references the Combat

211:18 Arms Earplug; do you see that?

211:19 A. Yes, sir.

211:20 Q. Again, from this note, you can't

211:21 tell whether this is a reference to the

211:22 dual-ended Combat Arms Earplug or one of the

211:23 other versions of the Combat Arms Earplug that

211:24 we saw the pictures of, can you?

211:25 A. No, sir, I can't.

216:02 - 216:19 Crossley, Cynthia 2020-09-21

216:02 Q. And have you received training on Re: [216:02 to 216:19]

216:03 how to conduct audiograms? Pltf Obj Cumulative; 611;

216:04 A. Oh, yes, sir. leading

216:05 Q. And can you describe that

216:06 training for the jury, please?

216:07 A. It was done in conjunction with

216:08 certification to -- for occupational health --

216:09 for the occupational health program. And it

216:10 really was hearing conservation. And maybe

216:11 they -- they did certify me as a technician.

216:12 I'd have to get -- I'd have to pull that

216:13 paperwork out. But we -- I can tell you this:

216:14 I -- When I went through that training, I went

216:15 through it three times, it was every five

216:16 years, from what I can remember now, but, yeah,

216:17 I was trained to do hearing tests.

216:18 Q. You were trained to conduct the

216:19 actual tests?

216:21 - 216:24 Crossley, Cynthia 2020-09-21

216:21 A. Yes, I was. But I was slow. I

216:22 was not a technician -- Technically, the

216:23 technicians were a lot faster than me and a lot

216:24 better at it.

217:04 - 217:07 Crossley, Cynthia 2020-09-21

217:04 Q. Were you trained in how to record Re: [217:04 to 217:07]

217:05 data into the DD2216s or equivalent forms for Pltf Obj compound

217:06 recording the audiological testing?

217:07 A. Yes.

217:14 - 218:04 Crossley, Cynthia 2020-09-21

217:14 A. Yes. I was familiar with it. I Re: [217:14 to 218:04]

217:15 didn't do it, but I was familiar with it. Pltf Obj 611; leading

217:16 Q. And you worked closely with the (217:16-217:18) and

217:17 technicians who actually filled out those (217:21-217:23) and

217:18 forms; correct? (218:02-218:03)

217:19 A. Yes. And they told me what to

217:20 do.

217:21 Q. You understood the practices of

217:22 your clinic and how the technicians filled out

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217:23 those forms?

217:24 A. I knew -- I know that they did

217:25 it. Did I understand it to the nth degree, no.

218:01 I understood that they did it.

218:02 Q. You understood the information

218:03 that they provided in those forms; correct?

218:04 A. Yes.

218:06 - 218:11 Crossley, Cynthia 2020-09-21

218:06 Q. And it is your testimony that Re: [218:06 to 218:11]

218:07 when completing the DD2216s, it was the Pltf Obj 611; leading

218:08 practice of your clinic to record the hearing (218:06-218:11) compound

218:09 protection device the soldier actually used; is

218:10 that right?

218:11 A. That's my understanding.

218:15 - 218:19 Crossley, Cynthia 2020-09-21

218:15 Do you know who retired Colonel

218:16 Merkley is?

218:17 A. According to that documentation,

218:18 he was head of the Army Hearing Conservation

218:19 Program.

219:02 - 219:04 Crossley, Cynthia 2020-09-21

219:02 Q. Has Lieutenant Colonel Merkley Re: [219:02 to 219:04]

219:03 ever told you how technicians should fill out a Pltf Obj hearsay 

219:04 2216 form?

219:06 - 219:06 Crossley, Cynthia 2020-09-21

219:06 A. No, sir. Re: [219:06 to 219:06]

Pltf Obj hearsay

219:12 - 219:17 Crossley, Cynthia 2020-09-21

219:12 Q. If Lieutenant Colonel Merkley had Re: [219:12 to 219:17]

219:13 suggested the recording of hearing protection Pltf Obj 611; leading;

219:14 device uses may not be reliable, that would not misstates; 

219:15 have been consistent with your clinic's

219:16 practice for recording which hearing protection

219:17 devices soldiers actually used?

219:23 - 219:25 Crossley, Cynthia 2020-09-21

219:23 A. Okay. To my -- To my knowledge, Re: [219:23 to 219:25]

219:24 and -- we recorded what the soldier used, based Pltf Obj 602; 802; 805; Strike

219:25 on what he told us. And that's what went in Nonresponsive (219:23-219-25)

220:01 - 220:07 Crossley, Cynthia 2020-09-21

220:01 the -- that's what I understood went in the Re: [220:01 to 220:07]

220:02 DD2216 data. Pltf Obj Strike Nonresponsive

220:03 Q. And regardless of anything else (220:01-220-02); 611; Leading

220:04 that was being done elsewhere in the Army, that (220:03-220:05)

220:05 was the practice of your clinic; correct?

220:06 A. That was the practice at our

220:07 clinic.

223:21 - 223:24 Crossley, Cynthia 2020-09-21

223:21 Q. And is it your understanding that Re: [223:21 to 223:24]

223:22 your clinic was responsible for conducting Pltf Obj 611; Leading

223:23 these exams annually on the fit and condition (223:21-223:24)

223:24 of preformed and custom earplugs?

224:01 - 224:07 Crossley, Cynthia 2020-09-21

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 143 of 305
224:01 A. Yes.

224:02 Q. And to the best of your

224:03 knowledge, again, during the exams you

224:04 conducted with Mr. Keefer, you did not fit Mr.

224:05 Keefer with any versions of the Combat Arms

224:06 Earplugs; correct?

224:07 A. Correct.

224:15 - 224:22 Crossley, Cynthia 2020-09-21

224:15 Q. Are you familiar with all of the Re: [224:15 to 224:22]

224:16 knowledge that the Army or the military had Pltf Obj 602 (224:19-224:22)

224:17 regarding the Combat Arms Earplugs?

224:18 A. Not all of it.

224:19 Q. Is it possible that other people

224:20 in the military had knowledge of rolling back

224:21 the flanges on the Combat Arms Earplugs, even

224:22 if you did not?

224:24 - 224:24 Crossley, Cynthia 2020-09-21

224:24 A. That would be possible. Re: [224:24 to 224:24]

Pltf Obj 602 (224:19-224:22)

225:06 - 225:09 Crossley, Cynthia 2020-09-21

225:06 Q. Is it possible that other Re: [225:06 to 225:09]

225:07 versions of the instructions for how to use the Pltf Obj 602; misstates

225:08 Combat Arms Earplugs specifically referenced

225:09 folding back the flanges?

225:11 - 225:11 Crossley, Cynthia 2020-09-21

225:11 A. That's possible. Re: [225:11 to 225:11]

Pltf Obj 602; misssates 

225:14 - 225:16 Crossley, Cynthia 2020-09-21

225:14 (Whereupon, Exhibit 23 was Re: [225:14 to 225:16]

225:15 marked for identification Pltf Obj Foundation 

225:16 purposes.)

226:21 - 226:25 Crossley, Cynthia 2020-09-21

226:21 Q. Ms. Crossley, does this look

226:22 familiar at all to you?

226:23 A. No, it does not. And I see -- I

226:24 immediately see that third flange pulled -- No,

226:25 that does not look familiar.

227:01 - 227:25 Crossley, Cynthia 2020-09-21

227:01 Q. If you go to the page just Re: [227:01 to 227:25]

227:02 before, I can see it on my screen, I don't know Pltf Obj 611; leading

227:03 if you can too. (227:24-227:25)

227:04 A. I can now.

227:05 Q. There's that red logo on it

227:06 USACHPPM. Do you know what that refers to?

227:07 A. All right. Let me see if I can

227:08 remember. United States Army Center for Health

227:09 Promotion and Preventive Medicine.

227:10 Q. That sounds good enough to me.

227:11 A. It's something like that.

227:12 Q. Your understanding that the

227:13 USACHPPM is part of the military; correct?

227:14 A. USACHPPM, yes, sir.

227:15 Q. Okay. And if you scroll down to

227:16 the last page, again, you notice that the photo

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 144 of 305
227:17 shows the flanges rolled up; correct?

227:18 A. I sure did. I noticed that

227:19 immediately.

227:20 Q. And the third from the bottom

227:21 bullet point there, can you read that, please?

227:22 A. For very large ear canals, fold

227:23 opposing plug back.

227:24 Q. You don't recall ever seeing

227:25 these particular instructions, do you?

228:01 - 228:05 Crossley, Cynthia 2020-09-21

228:01 A. I certainly don't. Re: [228:01 to 228:05]

228:02 Q. And you don't recall seeing the Pltf Obj 611; leading

228:03 other instructions Mr. Barr showed you, do you? (228:02-228:03)

228:04 A. I did not recall that in what he

228:05 showed me, yeah.

228:06 - 228:08 Crossley, Cynthia 2020-09-21

228:06 Q. And Mr. Keefer never disclosed to Re: [228:06 to 228:08]

228:07 you that he was using the Combat Arms Earplugs, Pltf Obj 611; leading

228:08 did he? (228:06-228:08)

228:10 - 228:12 Crossley, Cynthia 2020-09-21

228:10 A. Not to my -- Not to me Re: [228:10 to 228:12]

228:11 personally. Not to others, as far as I am Pltf Obj 611; leading

228:12 aware.

228:19 - 228:25 Crossley, Cynthia 2020-09-21

228:19 Q. Without knowledge that Mr. Keefer Re: [228:19 to 228:25]

228:20 was using the Combat Arms Version 2 Earplugs Pltf Obj 602; leading

228:21 you wouldn't have provided any instructions to (228:19-228:23); Strike as

228:22 him on how to use the Combat Arms Earplugs, Nonresponsive everything after

228:23 would you? came to us

228:24 A. Not on the visits that he came to

228:25 us, because we did not have those at that time,

229:01 - 229:01 Crossley, Cynthia 2020-09-21

229:01 period. We had the blue quads. Re: [229:01 to 229:01]

Pltf Obj Strike as

Nonresposive 229:01 

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 145 of 305
Pltf Objections O

735:22 ‐ 736:15 Fallon, Eric 2020‐09‐04

735:22 Q. Mr. Fallon, good afternoon.

735:23 A. Good afternoon.735:24 Q. And just for the record, Chad

735:25 Morriss from Kirkland & Ellis, representing

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

736:02 direct examination.736:03 Yesterday we talked a little

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

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

736:06 could.736:07 Would you tell the jury a

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

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

736:10 get to know you a little bit?

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

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

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

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

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

736:16 ‐ 737:07 Fallon, Eric 2020‐09‐04

736:16 My mother's family was from the

736:17 mountains of North Carolina. That's where

736:18 most of those are still at.

736:19 Q. Where did you graduate from

736:20 high school?

736:21 A. I graduated from George County

736:22 High School in Lucedale, Mississippi.

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

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

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

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

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

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

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

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

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

737:07 graduated.

737:08 ‐ 738:03 Fallon, Eric 2020‐09‐04

737:08 And during school I would have

737:09 odd jobs like working at a grocery store,

737:10 anything that I could pick up.

737:11 Q. What did you do after high

737:12 school?737:13 A. After high school, instead of

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

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

737:16 to the Mississippi gulf coast and getting a

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

737:18 Q. And how long did you hold that

737:19 job?737:20 A. Not long. I would say maybe

737:21 six months or so.

737:22 Q. And did you leave that position

737:23 and join the Army?

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

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

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

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 146 of 30
738:02 station one day and didn't know anything

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

738:04 ‐ 739:02 Fallon, Eric 2020‐09‐04

738:04 joined the Army.738:05 Q. Have any idea of what you

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

738:07 decision?738:08 A. I'm ashamed to admit this. I

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

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

738:11 to join the Army.

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

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

738:14 joining as an artillery cannon crewman as a

738:15 private.738:16 Q. And so tell me what kind of

738:17 position that is.738:18 A. So a cannon crewman, I was an

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

738:20 a howitzer section which fired very large

738:21 projectiles as a form of indirect fire

738:22 support.738:23 Q. And if somebody could go on

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

738:25 this end.

739:01 How long did you serve in that

739:02 position and where did you serve?

739:03 ‐ 740:05 Fallon, Eric 2020‐09‐04

739:03 A. I was an enlisted soldier the

739:04 whole time I was in the artillery, from April

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

739:06 1989. My first assignment was in Fort

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

739:08 about 18 months, and that followed basic

739:09 training which was in Oklahoma.

739:10 And then after approximately

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

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

739:13 also served as a cannon crewman.

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

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

739:16 initial ‐‐739:17 A. Yes.

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

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

739:20 What transpired that let that occur?

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

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

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

739:24 would award enlisted personnel a scholarship

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

740:01 through an officer commissioning program and

740:02 then potentially come back onto active duty

740:03 as a commissioned officer.

740:04 Q. And did you ultimately enter

740:05 that Green to Gold program?

740:06 ‐ 740:06 Fallon, Eric 2020‐09‐04

740:06 A. I did, yes.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 147 of 30
740:07 ‐ 741:07 Fallon, Eric 2020‐09‐04

740:07 Q. And as a result of entering the

740:08 Army's Green to Gold scholarship program, did

740:09 that lead you to leaving the military and

740:10 attending college?

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

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

740:13 to college.

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

740:15 what was your initial course of study?

740:16 A. I left ‐‐ I went to a small

740:17 school in the Mississippi delta called Delta

740:18 State University. I initially declared my

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

740:20 just wanted to get a college degree in

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

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

740:23 But after I believe it was my

740:24 first semester at Delta State, I became

740:25 interested in audiology, requested that the

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

741:02 did.741:03 Q. And did you ultimately get a

741:04 degree from Delta State?

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

741:06 bachelor's of science degree from Delta

741:07 State.

741:08 ‐ 742:10 Fallon, Eric 2020‐09‐04

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

741:09 A. It was in general science.

741:10 General studies, I believe.

741:11 Q. And then did you ultimately

741:12 further your education and obtain a degree

741:13 related to communications or audiology?

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

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

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

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

741:18 educational delay before coming back on to

741:19 active duty.741:20 I went to the University of

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

741:22 science degree in communication disorders

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

741:24 was awarded that degree in November, December

741:25 of 1994.

742:01 Q. And then after you obtained

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

742:03 military, and were you accepted into the

742:04 military as an officer?

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

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

742:07 Once I graduated from Ole Miss with my

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

742:09 of first lieutenant because I had an advanced

742:10 degree.

742:11 ‐ 743:14 Fallon, Eric 2020‐09‐04

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

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 148 of 30
742:12 of 1994, I reported for duty at Fort Sam Pltf Obj MIL G5 ‐ Speaking on

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

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

742:15 order to become either licensed or have the

742:16 ability to practice as a clinical audiologist

742:17 in the military?

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

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

742:20 clinical competency from an organization

742:21 called the American Speech, Language and

742:22 Hearing Association. And so the Army

742:23 assigned me to Brooke Army Medical Center at

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

742:25 clinical competency.

743:01 Q. And then once you obtained the

743:02 clinical competency, did you serve in the

743:03 Army as an audiologist?

743:04 A. I did, yes.

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

743:06 the first few years while you were an

743:07 audiologist in the military, can you describe

743:08 for the jury the kinds of job

743:09 responsibilities that you had and the places

743:10 that you served.

743:11 A. My first assignment after

743:12 Brooke Army Medical Center, once I completed

743:13 my clinical competency work, I was assigned

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

743:14 ‐ 744:16 Fallon, Eric 2020‐09‐04

743:14 to Fort Wainwright, Alaska, for four years Re: [742:11 to 743:14]

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

743:16 hearing ‐‐ chief of audiology and hearing behalf of Govt;403

743:17 conservation program officer.

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

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

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

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

743:22 hearing conservation.

743:23 And after that assignment, I

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

743:25 Army Medical Center where I served as chief

744:01 of audiology and hearing conservation before

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

744:03 into an operational assignment as an airborne

744:04 unit.744:05 Q. When you say you moved into an

744:06 operational assignment, what does that mean?

744:07 A. That means I left what you

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

744:09 garrison type of assignment, into a field

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

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

744:12 Q. And what detachment did you

744:13 ultimately get assigned to?

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

744:15 commander of the 714th medical detachment.

744:16 Q. And what sort of role and

744:16 ‐ 745:09 Fallon, Eric 2020‐09‐04

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

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 149 of 30
744:17 responsibilities did you have, and what Pltf Obj Strike Nonresponsive;

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

744:19 have? Govt; 403744:20 A. It was a preventive medicine

744:21 detachment, and a preventive medicine

744:22 detachment's responsibility is to provide

744:23 preventive medicine measures ‐‐ some people

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

744:25 to ward off disease among battle injuries for

745:01 soldiers that are in the field, primarily

745:02 engaged in combat.745:03 Historically, more soldiers

745:04 have been noncombat ready due to disease of

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

745:06 So the Army has placed a significant amount

745:07 of effort in trying to make sure that those

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

745:09 very austere environment.

745:13 ‐ 746:07 Fallon, Eric 2020‐09‐04

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

745:14 you deployed?745:15 A. At some point I was deployed,

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

745:17 yes.745:18 Q. And how long were you deployed

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

745:20 detachment?745:21 A. I don't remember specifically.

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

745:23 eight months before I was redeployed to

745:24 inactivate that unit.745:25 Q. And what did you do and what

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

746:02 A. We provided preventive medicine

746:03 services, just kind of roamed the area

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

746:05 sure that the forces stayed healthy, checking

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

746:07 preventive medicine checks.

746:08 ‐ 747:09 Fallon, Eric 2020‐09‐04

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

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

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

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

746:12 that was important because we wanted to

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

746:14 fighting force and that they weren't

746:15 suffering from either vector‐borne disease

746:16 such as malaria or diarrheal disease from

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

746:18 water.746:19 Q. Were you in or near active

746:20 combat in that role?

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

746:22 never directly engaged, yes.746:23 Q. Did you at some point join the

746:24 Army hearing conservation program office?

746:25 A. Yes. After returning from Iraq

747:01 with the 714th medical detachment and

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 150 of 30
747:02 deactivating that unit, I was then moved to

747:03 Aberdeen Proving Ground in Maryland where I

747:04 was assigned to the Army hearing conservation

747:05 program office, the office at USACHPPM.

747:06 Q. And is that the organization

747:07 that would have been responsible for

747:08 developing Army policy for hearing

747:09 conservation?

747:10 ‐ 748:12 Fallon, Eric 2020‐09‐04

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

747:11 responsibilities, yes. Pltf Obj MIL G5 ‐ Speaking on

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

747:13 until when?

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

747:15 assignment because of some other deployments,

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

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

747:18 date.747:19 Q. And when you first joined the

747:20 hearing conservation program office, what was

747:21 your role?747:22 A. I was a consulting audiologist.

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

747:24 the military audiologist assigned to a

747:25 primarily civilian office.

748:01 Q. And did you ultimately become

748:02 the program manager for that office?

748:03 A. I did, upon that program

748:04 manager's retirement.

748:05 Q. Yeah.

748:06 Were you also deployed during

748:07 your time at the Army hearing conservation

748:08 program office?

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

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

748:11 a preventive medicine staff officer for Joint

748:12 Task Force Katrina following that hurricane.

748:13 ‐ 749:13 Fallon, Eric 2020‐09‐04

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

748:14 that in Baghdad? Pltf Obj MIL G5 ‐ Speaking on

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

748:16 correct.748:17 Q. And what sort of role and

748:18 responsibility did you have in that?

748:19 A. My responsibility was to set up

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

748:21 complaining of hearing impairment, my

748:22 recollection is primarily to IED attacks.

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

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

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

749:01 take quite some time to get those individuals

749:02 back in theater.

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

749:04 hearing conservation program office, what was

749:05 your next assignment?749:06 A. Once I moved from the Army

749:07 hearing conservation program office, which

749:08 actually had been renamed to the Army hearing

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 151 of 30
749:09 program office, I went to the Army Research

749:10 Lab.749:11 Q. And during the time you were at

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

749:13 job responsibility?

749:14 ‐ 750:12 Fallon, Eric 2020‐09‐04

749:14 A. I was a consulting military

749:15 audiologist at the Army Research Lab, which

749:16 again was primarily composed of civilian

749:17 employees and researchers.

749:18 Q. And were you again deployed

749:19 during the time that you were at the ARL?

749:20 A. I was. I was tasked with going

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

749:22 to route clearance patrol.749:23 Q. And you say to clear an IED

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

749:25 what were you doing?

750:01 A. The Army had adopted a

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

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

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

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

750:06 there were route patrols whose primary

750:07 responsibility was to walk along military

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

750:09 IEDs.750:10 Q. And how long were you deployed

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

750:12 deployment that you had?

750:13 ‐ 751:12 Fallon, Eric 2020‐09‐04

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

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

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

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

750:17 the military before you retired?

750:18 A. My last job following the Army

750:19 Research Lab position was as director of

750:20 audiology and speech in research at Walter

750:21 Reed.750:22 Q. And did you retire in good

750:23 standing from that position?

750:24 A. I did, yes.

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

751:01 the Army, did you receive awards or

751:02 commendations?751:03 A. I did, yes.

751:04 Q. And can you describe briefly

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

751:06 awards or commendations that you were

751:07 acknowledged for?751:08 A. I received the Bronze Star for

751:09 my first tour in Iraq.

751:10 I received several, I don't

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

751:12 number of Army commendation medals.

751:13 ‐ 752:13 Fallon, Eric 2020‐09‐04

751:13 I received hearing a Re: [752:13 to 753:13] 

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 152 of 30
751:14 conservation award from the military Pltf Obj MIL G5 ‐ Speaking on

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

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

751:17 other small awards.751:18 Q. And then when you left the

751:19 military, did you go to work for 3M?

751:20 A. I did. When I retired from the

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

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

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

751:24 A. I was ‐‐ I believe it was a

751:25 technical service specialist at 3M,

752:01 supporting the military swarm and global

752:02 military business.

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

752:04 similar role since your retirement?

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

752:06 since my retirement, yes.

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

752:08 Army hearing conservation program office.752:09 Can you tell the jury under

752:10 what military structure that office exists?

752:11 A. That office existed basically,

752:12 if I remember right, under the Surgeon

752:13 General's office and was a preventive

752:13 ‐ 753:13 Fallon, Eric 2020‐09‐04

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

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

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

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

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

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

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

752:20 was USACHPPM.

752:21 Q. And what is USACHPPM?

752:22 A. USACHPPM stands for United

752:23 States Army Center for Health Promotion and

752:24 Preventive Medicine.

752:25 Q. And can you describe for the

753:01 jury what the Army hearing conservation

753:02 program office was tasked with performing

753:03 during the time you were there?

753:04 A. My understanding of our mission

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

753:06 related to a hearing conservation program as

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

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

753:09 that, supporting the installation hearing753:10 conservation program managers. And part of

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

753:12 responsibility of having adequate policy to

753:13 support a hearing conservation program.

753:19 ‐ 754:04 Fallon, Eric 2020‐09‐04

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

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

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

753:22 requirements?753:23 A. They did with regards to policy

753:24 and supporting installation hearing

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 153 of 30
753:25 conservation program managers.

754:01 Q. And did that include policy

754:02 related to hearing protection devices?

754:03 A. That would have included that,

754:04 yes.

754:15 ‐ 755:04 Fallon, Eric 2020‐09‐04

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

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

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

754:18 requirements for hearing conservation were?

754:19 A. My understanding was that there

754:20 was a Department of Defense instruction that

754:21 instructed all of the components of the

754:22 Department of Defense, the military branches,754:23 to establish a hearing conservation program.

754:24 My understanding is it outlined some minimum

754:25 requirements that those components had to

755:01 establish.755:02 Q. Dave, if you can pull Tab 7?

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

755:04 exhibit is.

755:13 ‐ 756:08 Fallon, Eric 2020‐09‐04

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

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

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

755:16 confusion about that.

755:17 A. I have the Department of

755:18 Defense Instruction Number 6055.12. I think

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

755:20 what I have open right now.

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

755:22 Exhibit Number 63.755:23 Can you identify this document

755:24 for the jury, please?

755:25 A. It is the Department of Defense

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

756:02 Q. And is this what you described

756:03 as the minimum requirements that the756:04 Department of Defense provided to the various

756:05 branches for their hearing conservation

756:06 programs?756:07 A. This is what I was referring

756:08 to, yes.

756:09 ‐ 756:15 Fallon, Eric 2020‐09‐04

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

756:10 later version of this earlier today that I

756:11 think was dated 2005, correct?

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

756:13 updated later, yeah.

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

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

756:20 ‐ 757:13 Fallon, Eric 2020‐09‐04

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

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

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

756:23 hearing conservation program in writing?

756:24 A. There is.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 154 of 30
756:25 Q. And what is the requirement?

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

757:02 shall prepare a written plan for the

757:03 implementation of a comprehensive hearing

757:04 conservation program."

757:05 Q. And if we turn over to

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

757:07 me know when you get there.

757:08 A. Okay. 6.6.2?

757:09 Q. Right.

757:10 Does the DOD instruction

757:11 address whether or not personal hearing

757:12 protectors should be provided?

757:13 A. They do, yes.

758:03 ‐ 758:03 Fallon, Eric 2020‐09‐04

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

Pltf Obj 602; MIL G5 ‐Speaking on behalf of Govt;Incomplete Designation

758:04 ‐ 758:07 Fallon, Eric 2020‐09‐04

758:04 shall issue personal hearing protections ‐‐ Re: [758:04 to 758:07]

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

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

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

759:01 ‐ 759:03 Fallon, Eric 2020‐09‐04

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

759:02 page 8, does it provide instructions specific

759:03 to preformed earplugs?

759:08 ‐ 759:24 Fallon, Eric 2020‐09‐04

759:08 THE WITNESS: Yes, that Re: [759:08 to 759:24]

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

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

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

759:12 the jury?

759:13 A. 6.6.7 says, "Preformed earplugs

759:14 shall be fitted and issued only under the

759:15 supervision of personnel who have been

759:16 specifically trained to fit earplugs."

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

759:18 understanding about a preformed earplug

759:19 during your time with the hearing

759:20 conservation office? What did that mean to

759:21 you?759:22 A. I would define a preformed

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

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

759:25 ‐ 760:02 Fallon, Eric 2020‐09‐04

759:25 Q. And would that include the

760:01 Combat Arms dual‐ended plug that we talked

760:02 about today?

760:12 ‐ 760:23 Fallon, Eric 2020‐09‐04

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

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

760:14 dual‐ended version of the Combat Arms? behalf of Govt

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

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 155 of 30
760:16 Q. And did the instruction under

760:17 6.6.9 describe what kind of personnel was

760:18 responsible for examining the fit and the

760:19 condition of these preformed plugs?

760:20 A. 6.6.9 states: "Medically

760:21 trained personnel must examine the fit and

760:22 condition of preformed and custom earplugs at

760:23 least annually."

760:24 ‐ 761:02 Fallon, Eric 2020‐09‐04

760:24 Q. And were these requirements

760:25 that we've talked about, were they in place

761:01 during the entire time that you were part of

761:02 the Army hearing conservation program office?

761:07 ‐ 761:09 Fallon, Eric 2020‐09‐04

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

761:08 and understanding that they were in Pltf Obj MIL G5 ‐ Speaking on

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

761:10 ‐ 761:15 Fallon, Eric 2020‐09‐04

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

761:11 Q. And were you made aware of Pltf Obj MIL G5 ‐ Speaking on

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

761:13 these instructions?761:14 A. Yes, I believe that the Army

761:15 implemented these instructions.

761:18 ‐ 761:19 Fallon, Eric 2020‐09‐04

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

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

behalf of Govt

761:23 ‐ 762:15 Fallon, Eric 2020‐09‐04

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

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

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

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

762:02 of the Army pamphlet titled "Hearing

762:03 Conservation Program."762:04 And it's my understanding that

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

762:06 the Department of Defense instruction762:07 requirements that you mentioned earlier.

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

762:09 particular pamphlet?

762:10 A. This pamphlet is dated 10

762:11 December 1998.762:12 Q. And was this in force during

762:13 your time at the Army hearing conservation

762:14 program office?762:15 A. That is my understanding, yes.

763:17 ‐ 763:19 Fallon, Eric 2020‐09‐04

763:17 So if we turn to page 5,

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

763:19 Protectors," correct?

763:20 ‐ 763:20 Fallon, Eric 2020‐09‐04

763:20 A. That is correct, yes.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 156 of 30
764:06 ‐ 764:15 Fallon, Eric 2020‐09‐04

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

764:07 about whether the DOD instruction required Pltf Obj MIL G5 ‐ Speaking on

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

764:09 devices available to military personnel?764:10 A. My understanding was that the

764:11 services had to make hearing protection

764:12 available free of charge to personnel that

764:13 are exposed to hazardous noise, either by

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

764:15 that.

764:25 ‐ 765:07 Fallon, Eric 2020‐09‐04

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

765:01 were in the hearing conservation program

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

765:03 A. That is correct, yes.

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

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

765:06 the program manager; is that correct?

765:07 A. That is correct, yes.

765:14 ‐ 765:21 Fallon, Eric 2020‐09‐04

765:14 THE WITNESS: That ‐‐ that is Re: [765:14 to 765:21]

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

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

765:17 Q. Well, let me rephrase it.

765:18 Did your job and responsibility

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

765:20 hearing conservation program was compliant

765:21 with the DOD instruction?

765:24 ‐ 765:25 Fallon, Eric 2020‐09‐04

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

765:25 so, yes. Pltf Obj MIL G5 ‐ Speaking on

behalf of Govt

766:02 ‐ 766:04 Fallon, Eric 2020‐09‐04

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

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

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

766:07 ‐ 766:21 Fallon, Eric 2020‐09‐04

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

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

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

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

766:11 have a section that deals specifically with

766:12 preformed earplugs?

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

766:14 6‐3?

766:15 Q. On page 6.

766:16 A. Yes, I do see preformed

766:17 earplugs.766:18 Q. Okay. And what does the Army

766:19 written policy say about how preformed

766:20 earplugs like the dual‐ended Combat Arms

766:21 Earplug should be fit and examined?

766:25 ‐ 767:24 Fallon, Eric 2020‐09‐04

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

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 157 of 30
767:01 "Preformed earplugs are triple or Pltf Obj MIL G5 ‐ Speaking on

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

767:03 consider the Combat Arms Earplug to be

767:04 preformed.767:05 And it says, "Medically trained

767:06 personnel must fit and examine these

767:07 earplugs at least annually to ensure

767:08 proper fit and condition."

767:09 QUESTIONS BY MR. MORRISS:

767:10 Q. And was it your understanding

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

767:12 ask it this way.

767:13 What was your understanding

767:14 about what Army policy would require for any

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

767:16 hearing protection device like the Combat

767:17 Arms dual‐ended plug?

767:18 A. My understanding is that that

767:19 must be fit by medically trained personnel,

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

767:21 Q. Let me make sure.

767:22 So we're looking at 6‐3, and

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

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

767:25 ‐ 768:08 Fallon, Eric 2020‐09‐04

767:25 40‐501, yes. Re: [767:25 to 768:08]

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

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

768:03 examined; is that right?

768:04 A. That is correct, yes.

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

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

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

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

768:13 ‐ 768:20 Fallon, Eric 2020‐09‐04

768:13 THE WITNESS: That it should be Re: [768:13 to 768:20]

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

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

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

768:17 the responsibility to actually fit and

768:18 examine hearing protection devices as we've

768:19 been discussing in these Army policy

768:20 provisions?

768:24 ‐ 769:20 Fallon, Eric 2020‐09‐04

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

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

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

769:02 technician assigned at an installation

769:03 level.769:04 It could have been an

769:05 audiologist under certain conditions,

769:06 but it ‐‐ there are also instances

769:07 where it could have been an

769:08 occupational health nurse if that

769:09 person or technician, if they had been

769:10 through a hearing conservation

769:11 technician course.769:12 But by and large, it would have

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 158 of 30
769:13 been a hearing conservation

769:14 technician, in my experience.

769:15 QUESTIONS BY MR. MORRISS:

769:16 Q. So how were these hearing

769:17 technicians or industrial hygiene nurses, how

769:18 were they trained on the fitting of hearing

769:19 protection devices?769:20 A. Well, it would have been ‐‐

770:02 ‐ 770:16 Fallon, Eric 2020‐09‐04

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

770:03 Q. Well, let me ask you this: Do Pltf Obj 602; MIL G5 ‐

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

770:05 fitting these hearing protection devices in

770:06 the Army were trained?

770:07 A. My experience was that they

770:08 were trained, and I did participate in

770:09 training courses; that they would have gone

770:10 through a certification course to become

770:11 hearing conservation technicians. And they

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

770:13 trained at either installation‐level or maybe

770:14 even at the Army hearing conservation program

770:15 office at USACHPPM.

770:16 Q. So did the Army hearing

770:17 ‐ 770:17 Fallon, Eric 2020‐09‐04

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

Pltf Obj 602; MIL G5 ‐Speaking on behalf of GovtRe: [770:17 to 770:20]Pltf Obj MIL G5 ‐ Speaking onbehalf of Govt

770:17 ‐ 770:20 Fallon, Eric 2020‐09‐04

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

770:18 part of participate in the training of these Pltf Obj 602; MIL G5 ‐

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

770:20 responsibility to fit and examine earplugs?

Re: [770:17 to 770:20]

Pltf Obj MIL G5 ‐ Speaking onbehalf of Govt

770:23 ‐ 770:24 Fallon, Eric 2020‐09‐04

770:23 THE WITNESS: We did conduct770:24 the certification courses, yes.

771:02 ‐ 771:14 Fallon, Eric 2020‐09‐04

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

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

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

771:05 and hearing conservation?

771:06 A. I did personally make these

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

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

771:09 these presentations as well.

771:10 Q. And what were the tools or

771:11 resources that were used to teach the

771:12 technicians and others on the specifics about

771:13 hearing conservation and hearing protection

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 159 of 30
771:14 devices?

771:17 ‐ 772:08 Fallon, Eric 2020‐09‐04

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

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

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

771:20 students could use as reference

771:21 materials. We would have provided

771:22 pertinent military regulations and

771:23 guidance. We would have performed

771:24 hands‐on training either with earplug

771:25 fitting exercises or hearing testing

772:01 exercises. So we would have used a

772:02 variety of training materials.

772:03 Specifically to the Combat Arms772:04 Earplug, we would have handed out

772:05 wallet cards for the Combat Arms

772:06 Earplug.772:07 So we would have used a variety

772:08 of methods.

772:17 ‐ 772:22 Fallon, Eric 2020‐09‐04

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

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

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

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

772:21 kinds of things that these technicians would

772:22 be taught in these training classes.

772:25 ‐ 773:21 Fallon, Eric 2020‐09‐04

772:25 THE WITNESS: They would have Re: [772:25 to 773:21]

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

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

773:03 device.773:04 Actually, I can even back up

773:05 from that.

773:06 As part of these courses, they

773:07 would have received training on the

773:08 anatomy and physiology of the ear.

773:09 That would have included diseases and

773:10 abnormal pathologies of the ear so

773:11 that they could identify whether or

773:12 not someone's ear canal was healthy

773:13 enough to be fit with a hearing

773:14 protector and that there were no

773:15 medical contraindications.

773:16 They would have been taught how

773:17 to pull outwards and back on the outer

773:18 ear to open up the ear canal for

773:19 fitting, and then based on a variety

773:20 of hearing protectors, how to get that

773:21 earplug ready to be fit.

773:23 ‐ 774:02 Fallon, Eric 2020‐09‐04

773:23 Q. How about how to determine Re: [773:23 to 774:02]

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

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

774:01 there ways to determine that that these

774:02 technicians were thought?

774:05 ‐ 775:03 Fallon, Eric 2020‐09‐04

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 160 of 30
774:05 THE WITNESS: We would have Re: [774:05 to 775:03]

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

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

774:08 vacuum test. If you have an Nonresponsive

774:09 appropriately fit hearing protector to

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

774:11 the other side of it.

774:12 An obvious one is that the

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

774:14 environmental sounds with an open ear

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

774:16 should sound muffled.774:17 To say something, and if you

774:18 have a good seal, your voice should

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

774:20 occlusion effect.

774:21 Another technique that I would

774:22 sometime use is if you have an earplug

774:23 that is appropriately fit, you can774:24 take your hand and cup it over the

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

775:01 further significant reduction.

775:02 Those are the types of things

775:03 that we would have utilized.

775:10 ‐ 775:17 Fallon, Eric 2020‐09‐04

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

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

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

775:13 did the Army hearing conservation program

775:14 office also have training sessions or courses

775:15 that were specific to the audiologists that

775:16 might be working in a particular

775:17 installation?

775:20 ‐ 775:22 Fallon, Eric 2020‐09‐04

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

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

775:22 audiologists as well. behalf of Govt

776:16 ‐ 776:21 Fallon, Eric 2020‐09‐04

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

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

776:18 conservation program office also train behalf of Govt

776:19 audiologists who would have been at different

776:20 installations throughout the United States?

776:21 A. Yes.

776:24 ‐ 777:04 Fallon, Eric 2020‐09‐04

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

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

777:01 been trained? behalf of Govt

777:02 What were the vehicles that

777:03 allowed the hearing conservation program

777:04 office to train audiologists?

777:11 ‐ 780:05 Fallon, Eric 2020‐09‐04

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

777:12 be what was referred to at that time Pltf Obj MIL G5 ‐ Speaking on

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

777:14 where all military audiologists were

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 161 of 30
777:15 brought to a location for training and

777:16 presentations and meetings.777:17 Another form would have been to

777:18 bring new audiologists to the Army

777:19 hearing conservation program office777:20 for training. The Army hearing

777:21 conservation program office may also

777:22 occasionally host just a hearing777:23 conservation conference and bring

777:24 officers to that as well.

777:25778:01 QUESTIONS BY MR. MORRISS:

778:02 Q. Now, we've talked a good bit

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

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

778:05 Were you familiar with the

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

778:07 that you were working at the Army hearing

778:08 conservation program office?

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

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

778:11 that time.778:12 Q. All right. And just so we get

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

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

778:15 A. The dual‐ended Combat Arms

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

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

778:18 functional capacity to serve as what we call

778:19 a level‐dependent hearing protector.

778:20 So in a nutshell, the passive

778:21 protector just kind of plugged your ear up

778:22 and protected you up to a certain point

778:23 against hazardous noise.

778:24 The level‐dependent capability

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

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

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

779:03 certain ‐‐ a sudden exposure to impulse

779:04 noise, to offer you protection against

779:05 impulse noise.779:06 Q. These training courses that you

779:07 led where technicians were the audience, did

779:08 your training sessions have information

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

779:10 A. Yes, those training sessions

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

779:12 Q. Do you recall about how often

779:13 these technician courses were taught?

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

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

779:16 needed.779:17 And remember, we ‐‐ at the Army

779:18 hearing conservation program office, we were

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

779:20 courses. They were also taught at the

779:21 installation level. But my recommendation is

779:22 that we would teach somewhere between six and

779:23 eight of those at the Army hearing

779:24 conservation program office.

779:25 Q. And when you made your

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 162 of 30
780:01 presentations, did you include specific

780:02 instructions relating to how the Combat Arms

780:03 dual‐ended earplug should be fit?

780:04 A. I did, yes.

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

780:06 ‐ 780:10 Fallon, Eric 2020‐09‐04

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

780:07 Do you recall learning that Pltf Obj MIL G5 ‐ Speaking on

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

780:09 third flange of the dual‐ended Combat Arms

780:10 Earplug?

780:13 ‐ 781:12 Fallon, Eric 2020‐09‐04

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

780:14 QUESTIONS BY MR. MORRISS: Pltf Obj MIL G5 ‐ Speaking on

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

780:16 remember learning about that.

780:17 A. I don't remember where I

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

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

780:20 Combat Arms Earplug, that an additional

780:21 technique that was available to you would be

780:22 to roll the opposing third flange back and

780:23 then attempt to fit the hearing protector.

780:24 And if you could achieve a good

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

781:01 instruct the person to roll the third flange

781:02 back.781:03 If you could not achieve a good

781:04 fit after attempting that, then you would

781:05 have to seek out another hearing protection

781:06 device.781:07 Q. And did the materials that you

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

781:09 any of the other materials that you had

781:10 available, did they include information about

781:11 rolling back the third flange and present

781:12 photographs?

781:15 ‐ 781:23 Fallon, Eric 2020‐09‐04

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

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

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

781:18 I remember them having a

781:19 statement about rolling the ‐‐ that

781:20 flange back under certain conditions.

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

781:22 them to try that if they could not

781:23 achieve a good fit.

782:02 ‐ 782:04 Fallon, Eric 2020‐09‐04

782:02 And I think a version of this

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

782:04 mark this as the next exhibit.

782:09 ‐ 782:10 Fallon, Eric 2020‐09‐04

782:09 (Fallon Exhibit 65 marked for

782:10 identification.)

782:14 ‐ 782:19 Fallon, Eric 2020‐09‐04

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 163 of 30
782:14 Q. And this was similar

782:15 presentation you were asked about earlier

782:16 today, correct?

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

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

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

783:03 ‐ 783:07 Fallon, Eric 2020‐09‐04

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

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

783:05 that you're familiar with?

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

783:07 familiar with, yes.

783:08 ‐ 783:18 Fallon, Eric 2020‐09‐04

783:08 Q. And in fact, it's a document

783:09 that you've produced or your lawyers have

783:10 produced in this litigation, correct?

783:11 A. That is correct, yes.

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

783:13 Exhibit 65, in making training presentations?

783:14 A. I used this document when I

783:15 would teach hearing conservation technician

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

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

783:18 Q. All right.

783:19 ‐ 784:12 Fallon, Eric 2020‐09‐04

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

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

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

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

783:23 earlier today.783:24 A. 40?

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

784:01 bottom.784:02 A. Okay. I'm there.

784:03 Q. And what is being demonstrated

784:04 with this slide?

784:05 A. What's being demonstrated on

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

784:07 are a variety of hearing protection devices.

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

784:09 variety of hearing protection devices.

784:10 Q. And which of these are

784:11 preformed plugs similar to what we've talked

784:12 about earlier today?

784:13 ‐ 784:23 Fallon, Eric 2020‐09‐04

784:13 A. The single‐flange earplugs Re: [784:13 to 784:23]

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

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

784:16 plugs, those are what I would consider

784:17 preformed plugs.

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

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

784:20 student technicians in the audience that

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

784:22 plugs, did you review advantages of preformed

784:23 plugs?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 164 of 30
785:01 ‐ 785:03 Fallon, Eric 2020‐09‐04

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

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

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

785:05 ‐ 785:07 Fallon, Eric 2020‐09‐04

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

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

785:07 preformed plugs? behalf of Govt; 403

785:10 ‐ 785:19 Fallon, Eric 2020‐09‐04

785:10 THE WITNESS: As with all of my Re: [785:10 to 785:19]

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

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

785:13 have hit these points and maybe some

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

785:15 QUESTIONS BY MR. MORRISS:

785:16 Q. And in addition to the

785:17 advantages, did you train the technician on

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

785:19 disadvantages of preformed plugs?

785:22 ‐ 786:24 Fallon, Eric 2020‐09‐04

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

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

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

785:25 would have followed along with other

786:01 content.786:02 QUESTIONS BY MR. MORRISS:

786:03 Q. What is the first bullet point

786:04 listed under the disadvantages of preformed

786:05 plugs slide?

786:06 A. The first bullet states,

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

786:08 trained person."786:09 Q. And why did you view that as a

786:10 potential disadvantage?786:11 A. I view that as a potential

786:12 disadvantage because it's just more

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

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

786:15 hearing protector.

786:16 Q. The third bullet point

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

786:18 third bullet point indicates in terms of

786:19 disadvantages of the preformed plug.

786:20 A. The third bullet of

786:21 disadvantages is "will work lose with normal

786:22 jaw movements."786:23 Q. Was that true with all

786:24 preformed plugs?

787:02 ‐ 787:03 Fallon, Eric 2020‐09‐04

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

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

behalf of Govt

787:05 ‐ 787:07 Fallon, Eric 2020‐09‐04

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

787:06 flange, the Combat Arms dual‐ended plug, all Pltf Obj Lay Scientific

787:07 have that potential disadvantage? Opinion; MIL G5 ‐ Speaking on

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 165 of 30
behalf of Govt

787:10 ‐ 787:11 Fallon, Eric 2020‐09‐04

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

787:11 with that statement, yes. Pltf Obj Lay Scientific

Opinion; MIL G5 ‐ Speaking on

behalf of Govt

787:13 ‐ 787:15 Fallon, Eric 2020‐09‐04

787:13 Q. Did the DOD instructions

787:14 address this potential disadvantage of

787:15 preformed plugs that you remember?

787:18 ‐ 787:21 Fallon, Eric 2020‐09‐04

787:18 THE WITNESS: To my best of my

787:19 memory, there was a section of the

787:20 DODI that addressed this disadvantage,

787:21 yes.

787:23 ‐ 787:24 Fallon, Eric 2020‐09‐04

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

787:24 Exhibit 63.

788:02 ‐ 788:02 Fallon, Eric 2020‐09‐04

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

788:05 ‐ 788:09 Fallon, Eric 2020‐09‐04

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

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

788:07 we looked at earlier today, correct?

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

788:09 yes.

788:17 ‐ 788:20 Fallon, Eric 2020‐09‐04

788:17 Q. Your personal understanding was

788:18 that the DOD had instructions that guided

788:19 military branches on their hearing

788:20 conservation program; is that correct?

788:23 ‐ 788:24 Fallon, Eric 2020‐09‐04

788:23 THE WITNESS: That was my788:24 understanding, yes.

789:02 ‐ 789:18 Fallon, Eric 2020‐09‐04

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

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

789:04 enclosure 6? behalf of Govt

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

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

789:07 general information?

789:08 A. Yes.

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

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

789:11 instruction poster.

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

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

789:14 and must be reseated."789:15 Q. Okay. And was that your

789:16 understanding about all preformed plugs, that

789:17 they could work loose from simply talking and

789:18 chewing?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 166 of 30
789:21 ‐ 789:23 Fallon, Eric 2020‐09‐04

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

789:22 understanding of ‐‐ a disadvantage of Pltf Obj Lay Scientific

789:23 preformed plugs, yes. Opinion; MIL G5 ‐ Speaking on

behalf of Govt

789:25 ‐ 790:01 Fallon, Eric 2020‐09‐04

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

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

behalf of Govt

790:01 ‐ 790:13 Fallon, Eric 2020‐09‐04

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

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

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

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

790:05 A. Slide 53.

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

790:07 A. Okay. I'm on slide 53.790:08 Q. When you were making

790:09 presentations to these technicians using this

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

790:11 that you would have used in teaching the

790:12 technicians how to fit the Combat Arms

790:13 Earplug?

790:16 ‐ 791:04 Fallon, Eric 2020‐09‐04

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

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

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

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

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

790:21 talking points about fitting, yes.

790:22 QUESTIONS BY MR. MORRISS:

790:23 Q. And does this slide include

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

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

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

791:02 Q. Does it also provide specific

791:03 bullets about fit and determining whether you

791:04 have a good fit?

791:07 ‐ 791:15 Fallon, Eric 2020‐09‐04

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

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

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

791:10 would have used other fit check

791:11 techniques as well, yes.

791:12 QUESTIONS BY MR. MORRISS:

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

791:14 have described this to the technicians about

791:15 how to check for a proper fit.

791:18 ‐ 792:22 Fallon, Eric 2020‐09‐04

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

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

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

791:21 inspect the ear canal to make sure

791:22 there was no medical contraindications

791:23 for fitting.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 167 of 30
791:24 My personal technique would be

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

792:01 If they could not achieve a good fit

792:02 by simply inserting it into the ear

792:03 with the pinna pulled back, as I

792:04 previously said, to roll back that

792:05 third opposing flange.

792:06 And they would have checked the

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

792:08 environmental sounds in the classroom,

792:09 and by talking and ‐‐ at least with

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

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

792:12 lot deeper to them.

792:13 My personal technique would792:14 have been to take the yellow end and

792:15 put it into the other ear canal so

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

792:17 mismatched balance.

792:18 QUESTIONS BY MR. MORRISS:

792:19 Q. Did the slide that we're792:20 looking at now have a specific bullet

792:21 concerning the potential need to roll back

792:22 the third flange?

792:25 ‐ 793:16 Fallon, Eric 2020‐09‐04

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

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

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

793:03 opposing plug back."

793:04 QUESTIONS BY MR. MORRISS:

793:05 Q. And is there a photograph of

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

793:07 third flange rolled back?

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

793:09 yes.793:10 Q. And then if you'll turn over to

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

793:12 number 64.793:13 A. Okay. I'm there.

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

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

793:16 training.

793:19 ‐ 794:02 Fallon, Eric 2020‐09‐04

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

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

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

793:22 and begun a fitting exercise. And all

793:23 of the students would have gone

793:24 through a hands‐on fitting exercise

793:25 with a partner, utilizing a variety of

794:01 hearing protectors to include the

794:02 dual‐ended Combat Arms Earplug.

794:06 ‐ 794:07 Fallon, Eric 2020‐09‐04

794:06 Q. You mentioned earlier a wallet

794:07 card.

794:11 ‐ 794:12 Fallon, Eric 2020‐09‐04

794:11 Q. And is this a two‐page or a

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 168 of 30
794:12 front‐and‐back document?

794:13 ‐ 794:15 Fallon, Eric 2020‐09‐04

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

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

794:15 the wallet card, yes.

794:16 ‐ 794:24 Fallon, Eric 2020‐09‐04

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

794:17 or bottom slide of this particular

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

794:19 you used as part of your presentation to

794:20 technicians?794:21 A. Yes. It looks to me almost

794:22 like the exact slide.

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

794:24 differently than the slide presentation?

795:03 ‐ 795:23 Fallon, Eric 2020‐09‐04

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

795:04 to me, was meant to be a training aid Pltf Obj MIL G5 ‐ Speaking on

795:05 that a soldier who had been issued the behalf of Govt

795:06 Combat Arms Earplug could keep with

795:07 them.795:08 And my understanding of the

795:09 reason the wallet card came about was

795:10 because soldiers could forget from

795:11 their fitting what the yellow end was

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

795:13 The reason ‐‐ I think this is

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

795:15 have used this in my training

795:16 presentation because it had, you know,

795:17 diagrams and pictures of the flange

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

795:19 would have been a training aid,

795:20 whereas my presentation would have

795:21 been used to instruct and train

795:22 personnel of how to fit the hearing

795:23 protector.

796:06 ‐ 796:07 Fallon, Eric 2020‐09‐04

796:06 QUESTIONS BY MR. MORRISS:

796:07 Q. Well, let me ask a question.

796:08 ‐ 797:08 Fallon, Eric 2020‐09‐04

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

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

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

796:11 available to military personnel?

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

796:13 Army hearing conservation program office, but

796:14 I recall that USACHPPM, some form of

796:15 USACHPPM, made training materials available

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

796:17 training materials would have been the wallet

796:18 card.796:19 Q. And how was the wallet card

796:20 made available through USACHPPM to military

796:21 personnel? How was it distributed?

796:22 A. My recollection is that

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 169 of 30
796:23 personnel from across the Army could come to

796:24 USACHPPM web page. They could order training

796:25 documents and guides or support material.

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

797:02 Earplug. And USACHPPM, some form of

797:03 USACHPPM, would have shipped those in

797:04 whatever quantity was ordered to whoever

797:05 ordered it.797:06 Q. Okay. And did the wallet card

797:07 contain information about which end of the

797:08 plug to use under what circumstances?

797:11 ‐ 797:19 Fallon, Eric 2020‐09‐04

797:11 THE WITNESS: It ‐‐ the wallet797:12 card did, to my understanding, contain

797:13 that information, yes.

797:14 QUESTIONS BY MR. MORRISS:

797:15 Q. And we can see here on

797:16 Exhibit 66 that there is an actual

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

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

797:19 correct?

797:22 ‐ 798:06 Fallon, Eric 2020‐09‐04

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

797:23 QUESTIONS BY MR. MORRISS: Pltf Obj Lay Scientific

797:24 Q. And then does the wallet card Opinion; MIL G5 ‐ Speaking on

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

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

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

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

798:04 on plugs for tension."

798:05 Q. And does it also reference the

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

798:09 ‐ 798:17 Fallon, Eric 2020‐09‐04

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

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

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

798:12 QUESTIONS BY MR. MORRISS:

798:13 Q. Did it include a photograph?

798:14 A. There is a photograph of the

798:15 opposing third flange rolled back, yes.

798:16 Q. And would this have been

798:17 information within the USACHPPM system?

798:23 ‐ 800:05 Fallon, Eric 2020‐09‐04

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

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

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

799:01 and I believe on one side is the

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

799:03 that it came from.

799:04 QUESTIONS BY MR. MORRISS:

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

799:06 of Exhibit 66.

799:07 Is there an emblem on the

799:08 bottom right of this wallet card?

799:09 A. There is an emblem on the

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

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

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 170 of 30
799:12 Q. Okay. At the very top is there

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

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

799:15 a Soldier in Iraq."

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

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

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

799:19 they probably made the difference between

799:20 eardrum/hearing damage and not. They

799:21 definitely allow you to mentally recover very

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

799:23 situation versus standing around like a

799:24 stunned mullet for a while."

799:25 Q. And then is there a direction

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

800:02 order the earplug?

800:03 A. I do see an ordering section

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

800:05 the single‐ended plugs.

800:06 ‐ 801:01 Fallon, Eric 2020‐09‐04

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

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

800:08 was distributing about what to do if you

800:09 needed more information?

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

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

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

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

800:14 toward a CHPPM web page.

800:15 Q. And a USACHPPM web page would

800:16 be a military web page, correct?

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

800:18 They end in .mil.800:19 Q. Now, remember that number,

800:20 51‐004‐0204. Okay?

800:21 The wallet card says, "For more

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

800:23 Did I read that correctly?

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

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

801:01 we'll mark as Exhibit 67.

801:10 ‐ 801:20 Fallon, Eric 2020‐09‐04

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

801:11 jury, what is Exhibit 67?

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

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

801:14 number that you just referenced on that

801:15 wallet card.

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

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

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

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

801:20 Exhibit 67, correct?

801:21 ‐ 801:21 Fallon, Eric 2020‐09‐04

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

802:10 ‐ 804:07 Fallon, Eric 2020‐09‐04

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

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 171 of 30
802:11 Dr. Fallon. Pltf Obj MIL G5 ‐ Speaking on

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

802:13 at the Army hearing conservation program

802:14 office, did you become familiar with a

802:15 publication put out by USACHPPM called Just

802:16 the Facts?

802:17 A. I have seen this document

802:18 before called Just the Facts, yes.

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

802:20 understand the Just the Facts publication ‐‐

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

802:22 A. My understanding was that Just

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

802:24 vehicle, that USACHPPM could take a

802:25 particular product that was relevant to

803:01 either preventive medicine or readiness and

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

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

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

803:05 to those, on some topics.803:06 This one, as you see, is titled

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

803:08 smoking cessation. It could be just about

803:09 anything that affected the readiness of the

803:10 force.803:11 Q. So Exhibit 67 is titled what?

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

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

803:14 Earplug. "

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

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

803:17 identification of user tips?

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

803:19 Tips," yes.

803:20 Q. And does it provide information

803:21 specifically about the need to have the

803:22 earplug properly inserted?

803:23 A. Yes, it does.

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

803:25 jury, that first sentence?

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

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

804:03 Combat Arms Earplug be properly inserted."

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

804:05 listing of how to determine whether the plug

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

804:07 described earlier today?

804:10 ‐ 804:20 Fallon, Eric 2020‐09‐04

804:10 THE WITNESS: Yes. It goes on

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

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

804:13 indication of proper insertion. Also,

804:14 the voice of the individual wearing

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

804:16 slightly muffled to the wearer."

804:17 QUESTIONS BY MR. MORRISS:

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

804:19 tip concerning folding back the opposing plug

804:20 or flange?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 172 of 30
804:23 ‐ 805:01 Fallon, Eric 2020‐09‐04

804:23 THE WITNESS: It does. It

804:24 says, "For exceptionally large ear

804:25 canals, fold the opposing plug back to

805:01 enhance proper insertion."

806:12 ‐ 807:23 Fallon, Eric 2020‐09‐04

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

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

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

806:15 A. I did, yes.

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

806:17 the jury the interaction that you and the

806:18 folks there at the Army hearing conservation

806:19 program office, what kind of interaction you

806:20 would have with an audiologist that may be

806:21 working at a particular installation?

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

806:23 phone conversations. We would have been

806:24 together generally at what was called

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

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

807:02 times we would host training events at the

807:03 Army hearing program office. And then I

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

807:05 would perform site visits to those

807:06 installations to look at their hearing

807:07 conservation program.

807:08 Q. So you talked about a short

807:09 course.807:10 What is a short course?807:11 A. What was called a short course,

807:12 the full title would have been a military

807:13 audiology short course. And it was a

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

807:15 audiologists would get together at a

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

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

807:18 four days.

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

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

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

807:22 training session where other audiologists

807:23 were in attendance?

808:01 ‐ 808:07 Fallon, Eric 2020‐09‐04

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

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

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

808:04 QUESTIONS BY MR. MORRISS:

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

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

808:07 this case.

808:10 ‐ 808:14 Fallon, Eric 2020‐09‐04

808:10 (Video played.)

808:11 Q. All right. Do you know

808:12 Lieutenant Merkley?808:13 A. I do know Lieutenant Merkley,

808:14 yes.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 173 of 30
808:16 ‐ 808:23 Fallon, Eric 2020‐09‐04

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

808:17 Merkley in that photograph ‐‐ in that video. Pltf Obj 602; MIL G5 ‐

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

808:19 the training provided by Doug Ohlin

808:20 consistent with your recollection of how

808:21 audiologists from different installations

808:22 were trained at the Army hearing conservation

808:23 program office?

809:01 ‐ 809:15 Fallon, Eric 2020‐09‐04

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

809:02 certainly coincides with Lieutenant Pltf Obj MIL G5 ‐ Speaking on

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

809:04 QUESTIONS BY MR. MORRISS:

809:05 Q. You were at the USACHPPM

809:06 hearing conservation program office roughly

809:07 from 2003 through 2010 or thereabouts?

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

809:09 except for the deployments I mentioned

809:10 earlier.809:11 Q. And during that time, is it

809:12 fair to say that you interacted with not only

809:13 technicians but other audiologists from

809:14 various installations, military

809:15 installations?

809:18 ‐ 810:01 Fallon, Eric 2020‐09‐04

809:18 THE WITNESS: I would have Re: [809:18 to 810:01]

809:19 interacted with all of those, yes. Pltf Obj MIL G5 ‐ Speaking on

809:20 QUESTIONS BY MR. MORRISS: behalf of Govt

809:21 Q. Based on your personal809:22 interaction, did the military audiology

809:23 community that you dealt with understand that

809:24 folding back the third flange was one way to

809:25 improve the fit of the dual‐ended plug in

810:01 some people?

810:04 ‐ 810:11 Fallon, Eric 2020‐09‐04

810:04 THE WITNESS: I have had no Re: [810:04 to 810:11]

810:05 reason to suspect that there were any Pltf Obj MIL G5 ‐ Speaking on

810:06 military audiologists who did not have behalf of Govt; 602

810:07 that information.810:08 QUESTIONS BY MR. MORRISS:

810:09 Q. Is it fair to say, though ‐‐ is

810:10 the dual‐ended plug, in your view, a

810:11 one‐size‐fits‐all plug?

810:14 ‐ 810:24 Fallon, Eric 2020‐09‐04

810:14 THE WITNESS: I did not view Re: [810:14 to 810:24]

810:15 the dual‐ended Combat Arms Earplug as Pltf Obj MIL G5 ‐ Speaking on

810:16 a once‐size‐fits‐all hearing behalf of Govt; 602

810:17 protector, no.

810:18 QUESTIONS BY MR. MORRISS:

810:19 Q. And based on your personal

810:20 interaction with the audiology community, at

810:21 least the people you interacted with, did

810:22 they understand that the dual‐ended Combat

810:23 Arms Earplug was not a one‐size‐fits‐all

810:24 plug?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 174 of 30
811:03 ‐ 811:14 Fallon, Eric 2020‐09‐04

811:03 THE WITNESS: I had no doubt ‐‐ Re: [811:03 to 811:14]

811:04 I had no reason to believe that Pltf Obj MIL G5 ‐ Speaking on

811:05 anybody would see it as anything other behalf of Govt; 602

811:06 than, you know, an earplug that will

811:07 fit a certain segment of the

811:08 population but not the entire811:09 population.811:10 And I do remember seeing some

811:11 documentation at times that it was not

811:12 a one size fits all.

811:13 (Fallon Exhibit 68 marked for

811:14 identification.)

811:22 ‐ 812:12 Fallon, Eric 2020‐09‐04

811:22 Q. And what is Exhibit 68?

811:23 A. It is an information paper

811:24 titled ‐‐ with a subject "Hearing Becomes a

811:25 Causality of War" media article, and it's

812:01 dated February 24, 2006.

812:02 Q. And if you turn over to page 2

812:03 of this document, does it indicate who the

812:04 author is?812:05 A. It appears to me the author is

812:06 Lieutenant Colonel Gates, with her phone

812:07 number. And then it says "approved by" who I

812:08 remember to be Colonel Gates' boss, Colonel

812:09 Underwood.812:10 Q. And did you play a role in

812:11 either preparing or reviewing at some point

812:12 this information paper?

812:13 ‐ 812:18 Fallon, Eric 2020‐09‐04

812:13 A. It's my recollection that I was

812:14 asked to edit or to comment on this paper

812:15 before it was produced, but I didn't author

812:16 it.812:17 Q. And what did you understand the

812:18 purpose of this paper to be?

812:21 ‐ 813:17 Fallon, Eric 2020‐09‐04

812:21 THE WITNESS: There was a news Re: [812:21 to 813:17]

812:22 article in a Dallas newspaper, if I Pltf Obj MIL G5 ‐ Speaking on

812:23 remember right, that was very critical behalf of Govt

812:24 of the ‐‐ either the Army or the

812:25 military's ‐‐ and that this was

813:01 written as some facts or some talking

813:02 points available to senior military in813:03 case they were asked about this or if

813:04 they wanted to know what the Army had

813:05 done with regards to ‐‐ to protecting

813:06 hearing. That's my memory.

813:07 QUESTIONS BY MR. MORRISS:

813:08 Q. And is there a listing of facts

813:09 on page ‐‐ beginning on page 1 of Exhibit 68?

813:10 A. There is ‐‐ Section 2 is titled

813:11 "Facts."813:12 Q. And if you look at B1, if you

813:13 could read the last sentence of that to the

813:14 jury, please.813:15 A. B1 states: "The CAE is not a,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 175 of 30
813:16 quote, one size fits all ‐‐ due to

813:17 exceptionally small or large ear canal size."

814:14 ‐ 814:19 Fallon, Eric 2020‐09‐04

814:14 Dr. Fallon, if you would read

814:15 the last sentence of B1.

814:16 A. B1 states: "The CAE is not a,

814:17 quote, one size fits all, end quote, and

814:18 there are soldiers who cannot use it due to

814:19 exceptionally small or large ear canal size."

814:24 ‐ 815:05 Fallon, Eric 2020‐09‐04

814:24 If you look at section E under

814:25 the Facts section, do you see that section,

815:01 Dr. Fallon?815:02 A. I do see section E, yes.

815:03 Q. And does it address the

815:04 importance of training as it relates to

815:05 earplugs?

815:08 ‐ 815:18 Fallon, Eric 2020‐09‐04

815:08 THE WITNESS: It does, yes. Re: [815:08 to 815:18]

815:09 QUESTIONS BY MR. MORRISS: Pltf Obj MIL G5 ‐ Speaking on

815:10 Q. And if you could read to the behalf of Govt

815:11 jury the first two sentences of section E.

815:12 A. The first two sentences say,

815:13 "It is critical to understand that hearing

815:14 conservation and hearing injury prevention is

815:15 not simply a matter of providing earplugs to

815:16 soldiers. Soldiers have to be trained and

815:17 fitted on the appropriate use and insertion

815:18 of earplugs."

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 176 of 30
Pltf Objections Objections Rulings

12:20 - 15:19 Hobbs, Brian 2020-07-16

12:20 Q. And take us back to the beginning.

12:21 A. Yes, sir. Maybe two and a half years

12:22 starting in 2000 at Lackland Air Force Base in

12:23 San Antonio, from there to University of Cincinnati

12:24 for about three years, and then from there

12:25 Wright-Patterson Air Force Base at the Air Force

13:01 Research Laboratory from maybe 2006 to 2009, and from

13:02 there to Tinker Airforce Base, 2009 to 2011, and from

13:03 there, 2011 to current position, Navy-Marine Corps

13:04 Public Health Center.

13:05 Q. So 2011 to present?

13:06 A. Yes, sir.

13:07 Q. Okay. And when did you shift from military

13:08 service to civilian service to the military?

13:09 A. 2011.

13:10 Q. And that was the point when you shifted

13:11 from Air Force service to the Navy?

13:12 A. Yes, sir.

13:13 Q. Okay. And if we could, sir, I'd just like

13:14 to run through, if you will, your MOS or what your --

13:15 what your functions were with the Air Force during

13:16 your military service, taking us back to 2000.

13:17 A. Okay. So always an audiologist for MOS. I

13:18 believe that's -- actually I pre'd at the MOS, but

13:19 audiology, audiologist, clinical audiologist at

13:20 Lackland, a student at University of Cincinnati,

13:21 audiologist at the Air Force Research Lab, and

13:22 audiologist at Tinker Airforce Base.

13:23 Q. In your capacity with the Navy today what's

13:24 your -- you don't have an MOS, but what is your role

13:25 or function today?

14:01 A. It is a supervisory position, and, let's

14:02 see, the title is supervisory audiologist. You know,

14:03 that covers a lot of things. I oversee a CAL lab, a

14:04 lot of hearing conservation stuff. I sit on just, you

14:05 know, several different aspects of that job, but, for

14:06 the most part, super -- supervision.

14:07 Q. Okay. And in your early years, from 2000,

14:08 before you went to the University of Cincinnati, where

14:09 were you stationed again?

14:10 A. Lackland Air Force Base.

14:11 Q. Okay. And that was -- that was in a

14:12 clinical audiology capacity?

14:13 A. Yes, sir. Yes, sir.

14:14 Q. And what degrees did you hold at that point

14:15 in time?

14:16 A. At that point I had a bachelor's in, I

14:17 believe, science, I guess, in communication disorders

14:18 from Bowling Green State University, and a master's

14:19 degree from -- in audiology, a master's in

14:20 communication disorders from LSU Health Science Center

14:21 in New Orleans.

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14:22 Q. Okay. And then you went to the University

14:23 of Cincinnati for three years, and what degree did you

14:24 pursue there?

14:25 A. That was the doctor -- AuD, doctorate of

15:01 audiology.

15:02 Q. Okay. And is that the highest professional

15:03 level degree you currently hold?

15:04 A. Yes, sir.

15:05 Q. Okay. So from 2002 to 2005 you were in

15:06 school. After that you went to Wright-Patterson Air

15:07 Force Base from 2006 to 2009. I think you told us in

15:08 an audiology capacity, but was that a clinical role or

15:09 was it a research role?

15:10 A. No, that was more of a research role.

15:11 Q. Okay. And then when you went to Tinker

15:12 Airforce Base from 2009 to 2011, what was your role or

15:13 capacity there?

15:14 A. Hearing Conservation Program for Tinker

15:15 Airforce Base.

15:16 Q. And is that the first time you had

15:17 responsibility for the Hearing Conservation Program at

15:18 any base?

15:19 A. Yes.

137:19 - 138:15 Hobbs, Brian 2020-07-16

137:19 Q. Let me -- let me reask it. So as we -- as

137:20 I heard your testimony today, you talked a little bit

137:21 about the Air Force, you talked some about the Navy,

137:22 you talked some about the Marines, and I'm just sort

137:23 of trying to figure out what branch of the military

137:24 you were in when you joined and did that change over

137:25 time.

138:01 A. No. It was Air Force from 2000 to 2011,

138:02 and then I got out of the Air Force to take the

138:03 civilian job with the Navy and Marine Corps.

138:04 Q. So during the period of time from 2000 to

138:05 2011 while you were active duty military, that was all

138:06 Air Force?

138:07 A. Yes, sir.

138:08 Q. And then in 2011 did you retire?

138:09 A. I did not retire. I separated from the Air

138:10 Force to take the civilian job.

138:11 Q. And that civilian job was with the Navy?

138:12 A. Yes, sir.

138:13 Q. And then you've been in that position up

138:14 until today?

138:15 A. Yes, sir.

138:22 - 139:07 Hobbs, Brian 2020-07-16

138:22 Q. During your time either with the Air Force Re: [138:22 to 139:07]

138:23 or in your civilian role with the Navy, did you have Pltf Obj Leading, Colloquy,

138:24 interaction with the other branches as part of your Compound, Argumentative, 403,

138:25 audiology work? Vague

139:01 A. Yes.

139:02 Q. For example, for the Army, I think it would

139:03 be -- they call it USA CHPPM, and they have certain

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139:04 responsibility for hearing and hearing protection.

139:05 Would you have interacted with the USA CHPPM

139:06 organization within the military from time to time?

139:07 A. I would say from time to time.

143:13 - 143:15 Hobbs, Brian 2020-07-16

143:13 Q. Now is it fair to say that at the time you Re: [143:13 to 143:15]

143:14 joined the military both tinnitus and hearing loss Pltf Obj 602, 611, 702, Touhy,

143:15 were common problems for military personnel? MIL G1, MIL G2

143:18 - 143:21 Hobbs, Brian 2020-07-16

143:18 A. Yes. Yes, there were problems. Re: [143:18 to 143:21]

143:19 Q. And did those problems continue through the Pltf Obj 602, 611, 702, Touhy,

143:20 time you were active military while you were in the MIL G1, MIL G2

143:21 Air Force?

143:23 - 144:02 Hobbs, Brian 2020-07-16

143:23 A. Yes. Re: [143:23 to 144:02]

143:24 Q. And then even at the time you left the Pltf Obj 602, 611, 702, Touhy,

143:25 military and in your position today, is it fair to say MIL G1, MIL G2

144:01 that tinnitus and hearing loss continue to be a

144:02 problem suffered by military personnel?

144:04 - 144:04 Hobbs, Brian 2020-07-16

144:04 A. Yes. Re: [144:04 to 144:04]

Pltf Obj 602, 611, 702, Touhy,

MIL G1, MIL G2

145:18 - 147:04 Hobbs, Brian 2020-07-16

145:18 Q. Now if we could, you were shown the DoD, Re: [145:18 to 147:04]

145:19 Department of Defense regulations. Well, let me just Pltf Obj Incomplete

145:20 ask this. Do you recall being shown the Department of Designation, Touhy, Hearsay,

145:21 Defense regulations? 403, MIL G1, MIL G2

145:22 A. Yes.

145:23 Q. I'm going to show you a different set.

145:24 Will, if you would go to tab 2 and mark that as

145:25 an exhibit, please.

146:01 (Exhibit 13 marked for

146:02 identification: DoD Instruction re

146:03 Hearing Conservation Program)

146:04 Q. We had a little conversation about the

146:05 dates of these DoD Instructions. If you'll look in

146:06 the right corner of Exhibit 2, first of all, is there

146:07 a date for this particular instruction?

146:08 A. Yes.

146:09 Q. And what is that date?

146:10 A. April 22nd, 1996.

146:11 Q. I don't know if you recall, but when you

146:12 looked at this version of the DoD instruction that the

146:13 plaintiff showed you, it made reference to the 1996

146:14 date as being the predecessor instruction from the

146:15 DoD, correct?

146:16 A. Yes. Yeah, from what I recall. It was --

146:17 was the version 2004? Canceled the 1996? Is that

146:18 right?

146:19 Q. Right, I think that's correct. We can pull

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146:20 it back up and look at the dates, but my primary

146:21 question is the that predecessor to the one you looked

146:22 at earlier was referenced as being 1996, correct?

146:23 A. Okay. Yes.

146:24 Q. Now, if you would, if you'll turn to

146:25 section 6.1, which is on page 3 of the document -- and

147:01 we'll pull it up on the screen. Anytime you'd like to

147:02 see the full document, feel free to pull it down, or I

147:03 can give you the tab number and we can dig it out.

147:04 You just let me know.

147:11 - 147:19 Hobbs, Brian 2020-07-16

147:11 Q. So I'm showing you what's been marked as Re: [147:11 to 147:19]

147:12 Exhibit 13 -- and, Will, if you'll go back to the Pltf Obj 602, Foundation,

147:13 front page -- is Exhibit 13 the Department of Defense Leading, Touhy, MIL G1, MIL G2

147:14 Instruction dated April 22, 1996?

147:15 A. Yes.

147:16 Q. And are these the instructions that were

147:17 given to the various branches of the military to set

147:18 out what should be part of a Hearing Conservation

147:19 Program with each individual branch?

147:22 - 147:25 Hobbs, Brian 2020-07-16

147:22 A. Yeah, I mean, as far as I know. I mean, Re: [147:22 to 147:25]

147:23 there was a DoD in place when I came in. What, you Pltf Obj 602, Foundation, 403,

147:24 know, what happened before then, you know, I don't Leading, Touhy, MIL G1, MIL G2

147:25 know.

148:15 - 148:19 Hobbs, Brian 2020-07-16

148:15 Q. Well, my question is simply did the Re: [148:15 to 148:19]

148:16 Department of Defense issued instructions relative to Pltf Obj 602, Foundation, 403,

148:17 hearing protection programs that were being utilized Leading, Touhy, MIL G1, MIL G2

148:18 in the military, correct?

148:19 A. Yes.

149:06 - 149:10 Hobbs, Brian 2020-07-16

149:06 Q. If you'll go now to page 3 and look at Re: [149:06 to 149:10]

149:07 section 6.1. Is it fair to say that section 6.1 Pltf Obj Leading, 403, Touhy,

149:08 indicates that a written plan shall be put in place hearsay, MIL G1, MIL G2

149:09 for a Comprehensive Hearing Conservation Program?

149:10 A. Yes, it says that.

149:22 - 149:24 Hobbs, Brian 2020-07-16

149:22 Q. Right. But over the course of your time at Re: [149:22 to 149:24]

149:23 the Air Force, have you learned that the Air Force has Pltf Obj Leading, 402, 403,

149:24 a Comprehensive Hearing Conservation Program? Touhy, MIL G1, MIL G2

150:02 - 150:21 Hobbs, Brian 2020-07-16

150:02 A. Yes. Re: [150:02 to 150:21]

150:03 Q. And now that you're in the civilian Navy Pltf Obj Leading, 402, 403,

150:04 position, have you learned that the Navy has a Touhy, MIL G1, MIL G2

150:05 Comprehensive Hearing Conservation Program?

150:06 A. Yes.

150:07 Q. If you'll turn over to section 6.62, which

150:08 is on page 7 of Exhibit 13, one of the requirements of

150:09 these instructions is that a personal hearing

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150:10 protector be issued to all personnel who work in

150:11 hazardous noise areas, correct?

150:12 A. Yes.

150:13 Q. And then if we flip over to page 8, and we

150:14 look at section 6.6.7, do the instructions require

150:15 that for preformed earplugs that they be fitted and

150:16 issued only under the supervision of personnel who

150:17 have been specifically trained to fit earplugs?

150:18 A. Yes, it does say that.

150:19 Q. And a preformed earplug would include the

150:20 Combat Arms dual-ended plug that we've been talking

150:21 about today, correct?

150:23 - 152:02 Hobbs, Brian 2020-07-16

150:23 A. Yes. Re: [150:23 to 152:02]

150:24 Q. And then if you look at section 6.6.9, not Pltf Obj Leading, 402, 403,

150:25 only must the preformed plugs like the Combat Arms be

602, Touhy, vague, MIL G1, MIL

151:01 fit, medically trained personnel must examine the fit G2

151:02 and condition of preformed and custom earplugs at

151:03 least annually, correct? That's what the instructions

151:04 say.

151:05 A. Yes.

151:06 Q. And then is it then your experience, I'll

151:07 ask you first about just your experience, that if a

151:08 soldier or a military personnel, for whatever reason a

151:09 particular plug did not work for them, did not seal,

151:10 that they had the right to get a different kind of

151:11 plug?

151:12 A. Yes.

151:13 Q. And in fact one of those options included

151:14 custom-made plugs, correct?

151:15 A. At some point it did, yes. I don't know

151:16 that specific -- in this specific instruction, but it

151:17 does, you know, one of the instructions goes on to

151:18 mention custom plugs.

151:19 Q. Right. If you look at 6.6.8, it says that

151:20 personnel may use custom earplugs only if they cannot

151:21 be properly fitted with approved hearing protectors or

151:22 if a custom device is required for special

151:23 circumstances, right?

151:24 A. Yes, it does say that.

151:25 Q. And all of this is consistent with your

152:01 understanding of how the military Hearing Conservation

152:02 Program functioned, correct?

152:05 - 152:15 Hobbs, Brian 2020-07-16

152:05 A. Yes. Re: [152:05 to 152:15]

152:06 Q. Now you were asked some of these questions, Pltf Obj Leading, 402, 403,

152:07 but I just want to follow up a little bit. You had no 602, Touhy, vague, foundation,

152:08 personal involvement in the design and the development

misstates, MIL G3, MIL G1, MIL

152:09 of the Combat Arms earplug, correct? G2

152:10 A. No. I did not work for 3M or whoever

152:11 designed that earplug. I did not have anything to do

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152:12 with the design or development of that.

152:13 Q. Do you know what role the military played

152:14 in the design and the development of the Combat Arms

152:15 dual-ended plug?

152:18 - 152:21 Hobbs, Brian 2020-07-16

152:18 A. No, I did not. Re: [152:18 to 152:21]

152:19 Q. Do you know whether or not the military Pltf Obj Leading, 402, 403,

152:20 participated in testing of various components of the 602, Touhy, vague, foundation,

152:21 plug before this issue to military personnel? misstates, MIL G3

152:23 - 152:25 Hobbs, Brian 2020-07-16

152:23 A. I'm aware that -- I believe that happened, Re: [152:23 to 152:25]

152:24 but to what degree or to what extent, I don't know Pltf Obj Leading, 402, 403,

152:25 that. 602, Touhy, vague, foundation,

misstates, MIL G3

153:11 - 154:04 Hobbs, Brian 2020-07-16

153:11 Q. Right. During the time that you were at Re: [153:11 to 154:04]

153:12 Wright-Patterson, did the -- did you have the Pltf Obj Vague, 403

153:13 capability of testing and evaluating hearing

153:14 protection devices?

153:15 A. Testing, yeah, I mean, if you're talking

153:16 about attenuation, yeah, to some degree, yes. Yeah, I

153:17 mean, sometimes --

153:18 Q. So you had a lab where you could perform

153:19 REAT testing that we talked about earlier, right?

153:20 A. Yeah, that's correct, yes.

153:21 Q. You had the equipment to do the

153:22 localization testing that we talked about earlier,

153:23 right?

153:24 A. Yes.

153:25 Q. The impulse noise testing, you didn't have

154:01 the capability to do it, but you utilized the ISL

154:02 facilities in France, and you personally went there to

154:03 coordinate those activities, correct?

154:04 A. Yes.

154:05 - 154:0Hobbs, Brian 2020-07-16

154:05 Q. Do you know whether other military branches

154:06 or even other facilities within the Air Force had the

154:07 capability of testing and evaluating hearing

154:08 protection devices?

154:09 A. No.

154:24 - 155:0Hobbs, Brian 2020-07-16

154:24 Q. And do you know, other than the WHISPr

154:25 testing that you conducted on the Combat Arms

155:01 dual-ended plug, do you know what other additional

155:02 testing was done on that plug either before or after

155:03 you conducted your work?

155:04 A. Not that I can recall, no.

155:20 - 157:18 Hobbs, Brian 2020-07-16

155:20 The REAT testing is not something that's done Re: [155:20 to 157:18]

155:21 out in the field. It's something that's done in a Pltf Obj 602, 403, 702,

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155:22 quiet room where the test subject is listening to Leading, Touhy

155:23 sounds and indicating when they can and cannot hear a

155:24 particular frequency.

155:25 A. Yes, sir.

156:01 Q. And the Air Force Research Lab had the

156:02 equipment and the setup to conduct that kind of REAT

156:03 testing.

156:04 A. Yes, sir.

156:05 Q. Now is it fair to say that the ANSI

156:06 standards have different kinds of tests that you can

156:07 perform in that setting?

156:08 A. Yes, sir.

156:09 Q. And I know this is not your area of

156:10 expertise, but have you heard the phrase "experimenter

156:11 fit" where an experimenter physically puts the plug

156:12 into the test subject's ear?

156:13 A. Yes, sir.

156:14 Q. Did you know that that is the kind of test

156:15 that the EPA requires for NRR labeling?

156:16 A. I did not know that, but I know there's a

156:17 difference, you know, between -- between -- I know

156:18 there's a couple different ways to fit the plug.

156:19 Q. But experimenter fit when doing REAT

156:20 testing is different than the kind of testing that you

156:21 did in the WHISPr test, correct?

156:22 A. Yes, sir.

156:23 Q. So for the WHISPr test, you would not have

156:24 physically put the plug in the subject's ear or your

156:25 technicians would not have physically put the plug in

157:01 the ear, but they would have trained them on how to

157:02 fit the plug and let them do it themselves, correct?

157:03 A. In this particular study, yes, sir.

157:04 Q. And then there's actually a third way to do

157:05 it, and that's where you don't tell the test subject

157:06 anything; you just hand them the plug, and the

157:07 packaging, and you let them fit the plug on their own.

157:08 A. Okay. Yes, sir.

157:09 Q. And is it fair to say that the test -- all

157:10 else being equal, you, as a research audiologist, you

157:11 would expect to get different results depending on the

157:12 kind of testing that you use, right?

157:13 A. Yes, sir.

157:14 Q. So if you use the experimenter fit, you're

157:15 really getting the very best fit and you would expect

157:16 to get the very best results that the plug could get

157:17 you, right?

157:18 A. Yes, sir.

157:21 - 158:01 Hobbs, Brian 2020-07-16

157:21 Q. And then if you used the method that you Re: [157:21 to 158:01]

157:22 used, okay, the give them the instructions and train Pltf Obj 602, 403, 702,

157:23 them, that would be a little less -- you would expect Leading, Touhy

157:24 less than experimenter fit but better than just

157:25 handing them the plugs and instructions, right?

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158:01 A. Yes, sir.

158:12 - 158:24 Hobbs, Brian 2020-07-16

158:12 So Plaintiff's Exhibit 9, this is the WHISPr Re: [158:12 to 158:24]

158:13 Study that we talked about earlier today, correct? Pltf Obj Hearsay, Leading

158:14 A. Yes, sir.

158:15 Q. And this is a study that was done by the

158:16 Air Force Research Laboratory, 711th Human Performance

158:17 Wing, Warfighter Interface Division, Battlespace

158:18 Acoustics Branch, at Wright-Patterson Air Force Base,

158:19 correct?

158:20 A. Yes, sir.

158:21 Q. Now is it fair to say that a number of

158:22 different kinds of hearing protection devices were

158:23 evaluated?

158:24 A. Yes, sir.

161:02 - 161:19 Hobbs, Brian 2020-07-16

161:02 Q. Right. So the report was generated to Re: [161:02 to 161:19]

161:03 accurately reflect the test results that you had Pltf Obj 602, Foundation,

161:04 achieved, right? Hearsay, MIL G1, MIL G2

161:05 A. Yes.

161:06 Q. It was prepared, you think, on behalf of

161:07 the Marine Corps who had funded the project and the

161:08 report was intended to be delivered to them so that

161:09 they would understand what your evaluations had shown,

161:10 right?

161:11 A. Yes.

161:12 Q. And the report was created in the ordinary

161:13 course of your group's work in military research,

161:14 right?

161:15 A. Yes.

161:16 Q. And this particular copy would have been

161:17 maintained in the ordinary course of military

161:18 business, correct?

161:19 A. Yes, as far as I know.

162:24 - 164:16 Hobbs, Brian 2020-07-16

162:24 Q. So there was an introduction and background Re: [162:24 to 164:16]

162:25 section that was provided and utilized in this report Pltf Obj 402, 403, 602,

163:01 that you generated, correct? misstates, hearsay, MIL G3,

163:02 A. Yes. MIL G4, MIL G5, MIL G6

163:03 Q. And if we look at the very first paragraph,

163:04 your report explains that "military ground operations

163:05 provide an environment with significant challenges,

163:06 necessitating a balance between operational

163:07 effectiveness and personnel safety," right?

163:08 A. Yes.

163:09 Q. Right. So the idea is, you know, our

163:10 soldiers have got to be able to do their job, but at

163:11 the same time we want to try to protect them, right?

163:12 A. That's right.

163:13 Q. And then the next section says, "the goal

163:14 of effectively protecting the hearing of personnel

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163:15 employing small arms in tactical environments has been

163:16 viewed as very difficult," right?

163:17 A. Yes, it does say that.

163:18 Q. And that's the -- under the Background

163:19 section that leads into your testing and your

163:20 reporting, correct?

163:21 A. Yes.

163:22 Q. Now if you go to the second paragraph, it

163:23 says:

163:24 "The legacy solution has been for

163:25 ground operators to sacrifice their

164:01 hearing by not wearing hearing

164:02 protection in an attempt to better

164:03 monitor the soundscape and the

164:04 communication systems. In both

164:05 training and combat environments this

164:06 has had a predictable effect on the

164:07 hearing sensitivity of exposed

164:08 personnel."

164:09 Did I read that correctly?

164:10 A. It does say that, yes.

164:11 Q. Right. And what that's saying is, the

164:12 solution that the soldiers were taking when they had

164:13 to choose between this being able to hear or protect

164:14 their hearing in a combat or training session was to

164:15 not wear the hearing protection device, right?

164:16 A. That's right.

164:21 - 165:11 Hobbs, Brian 2020-07-16

164:21 Q. Now if you go down a little bit more, if Re: [164:21 to 165:11]

164:22 you'll go to the last full paragraph you note that Pltf Obj 402, 403, 602,

164:23 "several military laboratories in the United States misstates, hearsay, MIL G3,

164:24 and Europe, working with industry, have endeavored to

MIL G4, MIL G5, MIL G6

164:25 develop tactical headset technologies which protect

165:01 the hearing of mounted and dismounted personnel from

165:02 weapons and blast noise while promoting ambient

165:03 soundscape listening and voice communications."

165:04 Did I read that correctly?

165:05 A. Yes.

165:06 Q. So you're saying that the U.S. military's

165:07 laboratories working with others have been trying to

165:08 get some kind of technology that lets a soldier hear

165:09 some of the ambient sound but still protects them when

165:10 there's an impulse noise.

165:11 A. Yes.

168:03 - 168:14 Hobbs, Brian 2020-07-16

168:03 Q. And then you note that the first of these Re: [168:03 to 168:14]

168:04 devices were simple passive nonlinear earplugs. And Pltf Obj vague

168:05 that would be a device like the Combat Arms dual-ended

168:06 plug, correct?

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168:07 A. Yes, sir.

168:08 Q. And, in fact, your report notes that some

168:09 of these earplugs were double-ended, correct?

168:10 A. Some of these earplugs were double-ended in

168:11 providing similar ... so it says the Combat Arms

168:12 earplugs provided some attenuation ... they were also

168:13 double ended, providing the nonlinear impulse

168:14 protection ... yeah, it does say that, yes.

170:11 - 170:14 Hobbs, Brian 2020-07-16

170:11 Q. All right. Let's move over to the Testing,

170:12 and if you'll turn over to 3.0, section 3.0.

170:13 Will, it's on page 5. You need to go earlier

170:14 in the document. It's section 3.0 at the very top.

170:18 - 171:16 Hobbs, Brian 2020-07-16

170:18 Q. So we talked about this a little bit

170:19 earlier. Do you recall that, Dr. Hobbs?

170:20 A. Yes.

170:21 Q. And this section of the report deals with

170:22 the REAT passive attenuation, correct?

170:23 A. Yes.

170:24 Q. And just so we're clear, this is where the

170:25 subject puts the earplug in their ear and then testing

171:01 is done to see when they're able to hear noises, at

171:02 what level they're able to hear noises, correct?

171:03 A. Yes.

171:04 Q. And then it's compared to when they're able

171:05 to hear noises with no protection in their ears,

171:06 right?

171:07 A. Yes.

171:08 Q. And then that -- you come up with a number,

171:09 and those are the numbers that represent the amount of

171:10 protection that the plug is providing under the

171:11 particular setting that you're using.

171:12 A. Yes.

171:13 Q. In your case for this particular testing,

171:14 we're talking about this particular method that's not

171:15 experimenter fit, but the method where the subject

171:16 actually puts the earplug in their own ear, right?

171:18 - 173:09 Hobbs, Brian 2020-07-16

171:18 A. Yeah, from what I recall, that's the method Re: [171:18 to 173:09]

171:19 we used. Pltf Obj 602, 402, 403,

171:20 Q. And you were asked some questions about leading, vague, argumentative,

171:21 whether the flange was rolled back, and it's your misstates facts

171:22 recollection, at least as we sit here today, that you

171:23 don't recall giving any instruction nor your

171:24 technicians giving instruction to roll back the flange

171:25 of the dual-ended plug when it was tested, correct?

172:01 A. That's correct. I did not recall that.

172:02 Q. Now if we look over at the next page, you

172:03 have a chart that gives the results, right?

172:04 A. Yes, sir.

172:05 Q. And if we look at the first -- there was a

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172:06 lot of comparison going on about the numbers, but if

172:07 we look at the first in-the-ear devices, there are

172:08 four of those, what kind of devices are those?

172:09 A. Those are, you know, for, I mean, I

172:10 consider them active devices.

172:11 Q. When we say "active," that means it's got

172:12 some kind of electronic and you have to turn it on?

172:13 A. Yes, sir.

172:14 Q. And do you know whether any of those

172:15 devices were around in 2000?

172:16 A. From what I know, if there was any of them,

172:17 they would have been the CEPS, but I don't know that

172:18 that was around at that time.

172:19 Q. This was sort of later developed technology

172:20 when compared to something like the dual-ended Combat

172:21 Arms plug, correct?

172:22 A. Yes, sir.

172:23 Q. And in terms of -- and you may not know

172:24 this -- but in terms of cost, are these electronic

172:25 devices that you turn on and off, are they more

173:01 expensive than these passive devices that were also

173:02 included in the testing?

173:03 A. Yes, sir.

173:04 Q. And is it fair to say that these electronic

173:05 on-and-off devices, you know, they are not the kind of

173:06 thing that are sitting in a bucket at a firing range

173:07 where a soldier comes by and picks them up and there's

173:08 just an unlimited quantity of them to use.

173:09 A. That's correct, sir.

174:01 - 174:12 Hobbs, Brian 2020-07-16

174:01 Q. So the first group is something that goes Re: [174:01 to 174:12]

174:02 in the ear, electronic, turn it on and off. The Pltf Obj 402, 403, foundation,

174:03 second group is electronic, but it goes over the ear vague, Touhy

174:04 like a muff.

174:05 A. Yes, sir.

174:06 Q. And then in the last group is this passive

174:07 group, which includes the Combat Arms earplug,

174:08 correct?

174:09 A. Yes, sir.

174:10 Q. And that obviously is the least expensive

174:11 of the group, true?

174:12 A. Yes, sir.

174:21 - 175:04 Hobbs, Brian 2020-07-16

174:21 Q. You have these separated into different Re: [174:21 to 175:04]

174:22 categories is because they're different kinds of Pltf Obj 402, 403, foundation,

174:23 devices that do different things, right? vague, Touhy, misstates, 702,

174:24 A. Yeah, there's -- yeah, I mean, they do MIL G7

174:25 different things, yes, sir.

175:01 Q. Yeah, like you wouldn't expect a passive,

175:02 inexpensive, nonlinear plug to have the same kind of

175:03 performance as an expensive in-the-ear electronic

175:04 plug.

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175:07 - 175:19 Hobbs, Brian 2020-07-16

175:07 A. Yeah, I agree in general with what you're Re: [175:07 to 175:19]

175:08 saying. I see what you're saying. I agree with that. Pltf Obj 402, 403, foundation,

175:09 I mean, the only thing, as an audiologist, I mean, vague, Touhy, misstates, 702,

175:10 what's right and wrong, you know, better or worse, you MIL G7

175:11 know, can depend on the environment. And, you know,

175:12 we certainly run into situations where you can

175:13 overprotect somebody, you know, and sometimes, you

175:14 know --

175:15 So I guess, you know, performance-wise, you

175:16 know, I guess it kind of just depends on the

175:17 environment, but there's no doubt that the active

175:18 stuff you turn on and off, you know, provides some --

175:19 some different capabilities.

176:17 - 177:16 Hobbs, Brian 2020-07-16

176:17 Q. And, in fact, what you're testing, your Re: [176:17 to 177:16]

176:18 REAT testing indicated, at least as to the Combat Arms Pltf Obj 403, vague, Touhy,

176:19 green end, it in fact did provide attenuation, 21, misstates, 702, MIL G7,

176:20 when you looked at it under one standard deviation, hearsay

176:21 and 15 under a two standard deviation, correct?

176:22 A. Yes, sir, that's -- yes, sir.

176:23 Q. And the yellow end had significantly less

176:24 attenuation than that, right?

176:25 A. Yes, sir.

177:01 Q. And that's what you would expect based on

177:02 what you know about the plug that, if you're trying to

177:03 allow lower-level sounds in and you're protecting only

177:04 against the loud impulse sounds, correct?

177:05 A. Yes, sir. I mean, essentially, yes, that's

177:06 the idea. Again, I mean, again, it would all be

177:07 relative, you know, relative to the noise that you're

177:08 exposed to.

177:09 Q. And then if you'll turn over to the

177:10 Discussion page, which is page 19 of the report,

177:11 section 3.3, in that first sentence, your team reports

177:12 that "continuous noise protection of all devices

177:13 tested was reasonable and should provide a safe

177:14 exposure level for the average user in many noise

177:15 environments up to 105 dBs," correct?

177:16 A. Yes, sir.

178:13 - 178:25 Hobbs, Brian 2020-07-16

178:13 Q. And if we look at paragraph 1, the second Re: [178:13 to 178:25]

178:14 sentence indicates that Table 1 -- and that's the Pltf Obj leading, heasay, MIL

178:15 table that we looked at earlier, right? G7, 403, 602, 702

178:16 A. Yes, sir.

178:17 Q. "Table 1 illustrates that the Combat Arms

178:18 Earplug green (intended for continuous noise

178:19 protection) provides very good attenuation." Did I

178:20 read that first part of the sentence correctly?

178:21 A. Yes, sir.

178:22 Q. And that was a conclusion that was reached

178:23 by you and your other researchers based on the data,

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178:24 correct?

178:25 A. Yes, sir.

179:06 - 179:14 Hobbs, Brian 2020-07-16

179:06 Q. You didn't have a manufacturer of any of Re: [179:06 to 179:14]

179:07 these earplugs telling you what protocols to use, how Pltf Obj Vague, colloquy,

179:08 to conduct the testing, right? compound, 403, MIL G4

179:09 A. No, sir.

179:10 Q. You didn't ask for any internal

179:11 information, any internal documents, any internal

179:12 testing. In fact, you wanted this to be unbiased

179:13 based on your independent testing of the product,

179:14 correct?

179:16 - 179:16 Hobbs, Brian 2020-07-16

179:16 A. Yes, sir. Re: [179:16 to 179:16]

Pltf Obj Vague, colloquy,

compound, 403, MIL G4

179:19 - 181:15 Hobbs, Brian 2020-07-16

179:19 Q. And, in fact, the words that you and your Re: [179:19 to 181:15]

179:20 group chose to use was that the green end provided Pltf Obj 402, 403, leading,

179:21 very good attenuation and is readily distinguished hearsay, compound, vague,

179:22 from the Combat Arms Earplug yellow intended for Touhy, misstates, 702, MIL G1,

179:23 impulse noise, correct? MIL G2, MIL G7

179:24 A. Yes, sir. And I write that there -- and to

179:25 go back, again, you know, very good attenuation --

180:01 good attenuation, as I've come, you know, you know,

180:02 to, you know, kind of expand my thoughts, you know,

180:03 good attenuation is the attenuation that you need.

180:04 And so, you know, the words "very good," you

180:05 know, could be kind of relative, but, I mean, adequate

180:06 attenuation, adequate attenuation for the -- for what

180:07 you would expect from that earplug, you know, I think

180:08 it's maybe a better word, but, you know, again,

180:09 it's -- as I kind of mature through this stuff, very

180:10 good is what you need.

180:11 Q. And then you say -- let me back up again.

180:12 So whether you say that it's very good attenuation and

180:13 whether you say it's adequate, you certainly, you and

180:14 your group, certainly commented that the plug was

180:15 providing attenuation at a level you would expect.

180:16 A. Yes, sir.

180:17 Q. And then you comment on the difference

180:18 between the higher attenuation on the green end and

180:19 the lower attenuation on the yellow end, right?

180:20 A. Yes, sir.

180:21 Q. And what you say is that "this allows for

180:22 the desirable difference in performance

180:23 characteristics provided by this Combat Arms earplug,

180:24 in that the green side provides continuous noise

180:25 protection. While in a tactical situation the user

181:01 inserts the yellow side and is better able to maintain

181:02 situational awareness but still realize protection

181:03 from impulse noise," right?

181:04 A. Yes, sir.

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181:05 Q. So just so I'll understand this, you're

181:06 saying like you had more protection on the green end,

181:07 less protection on the yellow end, and that's sort of

181:08 indicative of how the plug is supposed to work. The

181:09 green end protects you from continuous noise, the

181:10 yellow end lets you hear ambient sounds better, but

181:11 still protects from impulse noises, correct?

181:12 A. Yes, sir.

181:13 Q. And those were the conclusions that you and

181:14 your group reached after performing this independent,

181:15 unbiased testing, correct?

181:17 - 182:16 Hobbs, Brian 2020-07-16

181:17 A. Yes, sir. I'm sorry. Yes, sir. Re: [181:17 to 182:16]

181:18 Q. So now let's go to, if we could the next Pltf Obj 402, 403, leading,

181:19 section, which is the "Airblast Overpressure hearsay, compound, vague,

181:20 Measurements for Attenuation," section 4.0. Touhy, misstates, 702, MIL G1,

181:21 Just so I sort of have an understanding of MIL G2, MIL G7

181:22 this, when we talk about airblast overpressure, we're

181:23 talking about an explosion, correct?

181:24 A. Yes, sir.

181:25 Q. You weren't trying in the testing to create

182:01 like this massive amount of decibel levels to imitate

182:02 what an explosion or an IED or something of that

182:03 nature would cause.

182:04 A. Yes, sir.

182:05 Q. You would have attempted to generate

182:06 something at 165 decibels and something at 195

182:07 decibels, correct?

182:08 A. Yes, sir.

182:09 Q. And then you would have tested on these

182:10 three manikins pressure without a plug and pressure

182:11 with a plug, right?

182:12 A. Yes, sir.

182:13 Q. And the idea was to see what these various

182:14 devices -- what kind of protection they could give in

182:15 that unusual high-decibel situation, right?

182:16 A. Yes, sir.

182:24 - 183:08 Hobbs, Brian 2020-07-16

182:24 So are there situations where the military Re: [182:24 to 183:08]

182:25 requires what's called dual protection? Pltf Obj Incomplete

183:01 A. Yes, sir. Designation

183:02 Q. And what is dual protection?

183:03 A. Usually a earplug and then an earmuff over

183:04 that plug.

183:05 Q. And if you have a 195-decibel explosion,

183:06 would you -- would the military requirements say you

183:07 should have dual protection for that type of noise

183:08 level?

183:23 - 184:05 Hobbs, Brian 2020-07-16

183:23 Q. Right. And that was the point I was trying Re: [183:23 to 184:05]

183:24 to make and not doing a very good job of it, is that Pltf Obj Compound, Colloquy,

183:25 you were just seeing how much attenuation these Vague, Leading

184:01 devices might be able to provide in the unusual

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184:02 setting of 195 decibels. You weren't trying to see if

184:03 these plugs would be appropriate if you knew you were

184:04 going to be exposed to that kind of decibel level

184:05 noise, correct?

184:07 - 184:13 Hobbs, Brian 2020-07-16

184:07 A. Yes. Yes. Yes, sir. Re: [184:07 to 184:13]

184:08 Q. So just -- so we understand what you did, Pltf Obj Compound, Colloquy,

184:09 you had these three manikins -- and, if we turn over Vague, Leading

184:10 to the next page, Will -- we can see the photograph

184:11 that we looked at earlier. These would have been the

184:12 three manikins, correct?

184:13 A. Yes, sir.

184:18 - 186:11 Hobbs, Brian 2020-07-16

184:18 Q. Yeah. So there were some questions earlier Re: [184:18 to 186:11]

184:19 about testing with other devices for both the REAT Pltf Obj 403, 602, 702,

184:20 test and this blast test. When you tested the Combat leading, hearsay, compound,

184:21 Arms plug, it was only the Combat Arms earplug. You MIL G1, MIL G2, MIL G7

184:22 did not have it combined with something else.

184:23 A. Not -- so you're saying was there a headset

184:24 over the top of it?

184:25 Q. Right.

185:01 A. No, not for this particular test. Did we

185:02 run some of that just on the side, or did we -- did we

185:03 try that maybe? I don't recall that. But, you know,

185:04 for the purposes of this report, this stuff was run by

185:05 itself.

185:06 Q. I just mean, when I look at these results,

185:07 that's the attenuation provided by the dual-ended plug

185:08 alone.

185:09 A. The dual-ended plug, yes.

185:10 Q. Okay. And then if we go to the next page,

185:11 Will, this is showing the actual demonstration of the

185:12 blast that's creating the pressure that's being

185:13 tested, correct?

185:14 A. Yes, sir.

185:15 Q. And if we look over at 4.2, the Results

185:16 section, you have 100 blasts with 13 devices

185:17 generating pressures at 165 dB and 195 dB, and then

185:18 you're measuring the protection provided by each

185:19 device, right?

185:20 A. Yes, sir.

185:21 Q. And then on the next page you actually have

185:22 a table that shows the protection that these devices

185:23 are rendering in this overblast test that you

185:24 conducted, correct?

185:25 A. Yes, sir.

186:01 Q. And, again, you have them broken out the

186:02 same way. This in-the-ear, the earmuffs that are both

186:03 electronic, and then you have these passive devices

186:04 that you don't turn off in a different category, but

186:05 all of them are measured and then compared here,

186:06 correct?

186:07 A. Yes, sir.

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186:08 Q. And like if you look, for example, at the

186:09 195 dB for the Combat Arms green end, it attenuates at

186:10 36.3, correct?

186:11 A. Yes, insertion loss, yes.

186:16 - 187:01 Hobbs, Brian 2020-07-16

186:16 Q. So let me ask it again. Starting with, I'm Re: [186:16 to 187:01]

186:17 going to say the earmuffs that go over your ear Pltf Obj 402, 403, 702,

186:18 because that's what I understand. If we look at the leading, hearsay, MIL G7

186:19 earmuffs over-the-ear electronic devices, the green

186:20 end of the Combat Arms plug did better than all of

186:21 those.

186:22 A. Yes, sir.

186:23 Q. Right? And if we look at the in-the-ear

186:24 devices, those scores are, at least as to two of them,

186:25 pretty close, right?

187:01 A. Yes, sir.

187:03 - 187:05 Hobbs, Brian 2020-07-16

187:03 Q. Fair to say that the green end of this plug Re: [187:03 to 187:05]

187:04 in this overblast test compares pretty favorably to Pltf Obj 402, 403, 702,

187:05 even the in-the-ear electronic devices, right? leading, vague, MIL G7

187:08 - 187:14 Hobbs, Brian 2020-07-16

187:08 A. Yeah, I mean, it compares to them, I mean, Re: [187:08 to 187:14]

187:09 if you're just looking at the numbers, I mean, it Pltf Obj 402, 403, 702,

187:10 would, you know, it would be below the in-the-ear, you leading, vague, hearsay, MIL

187:11 know, active headsets. G7

187:12 Q. For example, if we look at the first one,

187:13 it's below by less than 2 decibels, right?

187:14 A. Yes, sir.

187:23 - 188:03 Hobbs, Brian 2020-07-16

187:23 Q. In any event, we have a passive, not a Re: [187:23 to 188:03]

187:24 electronic device, completely performing better than Pltf Obj 402, 403, 702,

187:25 the earmuffs, and at least approaching within some leading, vague, hearsay, MIL

188:01 number of decibels of the in-the-ear electronic G7

188:02 devices, right?

188:03 A. Yes, sir.

190:08 - 191:08 Hobbs, Brian 2020-07-16

190:08 If you're looking at the green end, the green Re: [190:08 to 191:08]

190:09 end of a plug at 195 decibels performed better than Pltf Obj 402, 403, 702,

190:10 all of the earmuff electronic devices that you tested; leading, vague, hearsay, MIL

190:11 is that correct? G7

190:12 A. Yes, sir.

190:13 Q. And the green end of the plug at 195 had an

190:14 attenuation of 36.3; is that correct?

190:15 A. Yes, sir.

190:16 Q. And if we look at, for example, the

190:17 in-the-ear, the first one you tested, it had an

190:18 attenuation of 37.5, correct?

190:19 A. Yes.

190:20 Q. And that, again, is an electronic device

190:21 that you turn on and off, not a passive device like

190:22 the dual-ended one, correct?

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190:23 A. That's right.

190:24 Q. And then if we look at the green end at 165

190:25 decibels, the green end, again, beat all the earmuff

191:01 products that you tested, right?

191:02 A. Yes, sir.

191:03 Q. Even though they were all electronic,

191:04 right?

191:05 A. Yes, sir.

191:06 Q. And actually did better than one of the

191:07 in-the-ear electronic devices that you tested,

191:08 correct?

191:10 - 191:18 Hobbs, Brian 2020-07-16

191:10 A. Yes, sir. Re: [191:10 to 191:18]

191:11 Q. And then the yellow, if we go to the Pltf Obj 402, 403, 702,

191:12 yellow, at 195 it provided protection of 32.4 leading, vague, hearsay, MIL

191:13 decibels, correct? G7

191:14 A. Yes, sir.

191:15 Q. And the yellow end of the dual-ended plug

191:16 did better than all of the earmuff electronic devices

191:17 that you tested, correct?

191:18 A. Yes, sir.

191:21 - 192:05 Hobbs, Brian 2020-07-16

191:21 Q. If we go to the 165 column and look at the Re: [191:21 to 192:05]

191:22 yellow end of the plug, it, again, attenuated at 23.4 Pltf Obj 402, 403, 702,

191:23 decibels, correct? leading, vague, hearsay, MIL

191:24 A. Yes, sir. G7

191:25 Q. And beat some but not all of the earmuffs,

192:01 correct?

192:02 A. Yes, sir.

192:03 Q. And the dual-ended plug had these

192:04 performance characteristics even though it's less

192:05 expensive and not electronic, correct?

192:07 - 192:07 Hobbs, Brian 2020-07-16

192:07 A. Yes, sir. Re: [192:07 to 192:07]

Pltf Obj 402, 403, 702,

leading, vague, hearsay, MIL

G7

193:14 - 193:21 Hobbs, Brian 2020-07-16

193:14 Q. Rephrase it. Is it fair to say that, at Re: [193:14 to 193:21]

193:15 least up to 195 decibels, your testing shows that it Pltf Obj 402, 403, 702,

193:16 is providing insertion loss which would amount to leading, vague, hearsay, MIL

193:17 reducing the pressure in the manikin? G7

193:18 A. Yes, sir.

193:19 Q. So at 195 it is reducing the pressure by

193:20 the numbers that is reflected in this chart.

193:21 A. Yes, sir.

194:03 - 196:19 Hobbs, Brian 2020-07-16

194:03 Q. All right. So if we'll turn now to section Re: [194:03 to 196:19]

194:04 6.0. And I just want to make sure I understand. What Pltf Obj 402, 403, 702, vague,

194:05 did you do in this particular testing methodology? hearsay, MIL G7, Strike

194:06 A. So, as I remember, there's speech and noise Nonresponsive

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194:07 testing that -- that clinicians can use. You know,

194:08 basically, it changes the speech or the

194:09 signal-to-noise ratio over a list of words.

194:10 And so what we're looking at here is the

194:11 first -- the first intelligibility, I believe, in the

194:12 previous section was just the ability to communicate

194:13 over radio, whereas this, this test was, you know, the

194:14 idea was that we would see how well you could

194:15 communicate through the talk-through mics.

194:16 So instead of over a radio, you know, this

194:17 would maybe be somebody standing beside you, you 

know.

194:18 Your ambient noise, you know, for the electronic

194:19 active headsets, you know, were -- would have been on,

194:20 you know, and you can -- you can hear, you know, how

194:21 well can you hear the person talking next to you. So

194:22 that's kind of -- just what we're trying to do.

194:23 And the way that we did that was used this

194:24 speech and noise test, you know, I believe on CD, and

194:25 we can play it through a speaker and in one of those

195:01 controlled environments. I believe we used the Myers

195:02 facility for that. And, you know, the subject would

195:03 sit in front of a loud speaker and, basically, you

195:04 know, accomplish this test.

195:05 And the score, you know, the lower the score on

195:06 the QuickSIN the better, and that's essentially -- the

195:07 idea was to evaluate the talk-through capability of

195:08 that -- of the tactical headset as opposed to the

195:09 radio communication.

195:10 Q. So this was not testing just the dual-ended

195:11 plug. This was the dual-ended plug combined with

195:12 something else and then do the testing.

195:13 A. Yes.

195:14 Q. And it was not a test really designed to

195:15 specifically look at protection or attenuation that

195:16 was being provided by an individual product.

195:17 A. That's correct.

195:18 Q. Now if you'll turn over to page 65, the

195:19 Discussion section under 6.3, the second paragraph

195:20 about halfway down, there's a sentence that begins,

195:21 "When using the CAEP green end it is not a surprise

195:22 that performance is slightly worse and may be a

195:23 positive indication of passive attenuation." Do you

195:24 see that?

195:25 A. I do.

196:01 Q. Can you tell the jury what that means?

196:02 A. So the CAEP -- so, again, this is in

196:03 conjunction with the bone conduction tactical headset.

196:04 And so the ear is open when it's in combination with

196:05 the Sidewinder. And, you know, when you're plugging

196:06 your ear up, when you're putting your ear protector

196:07 in, you know, there's -- there's going to be, you

196:08 know, not only, you know, the noise you're trying to

196:09 avoid is reduced, but the noise to hear speech is also

196:10 reduced. And so that's what that statement means.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 194 of 305
196:11 Basically, you know, we're using, you know, the

196:12 Sidewinder tactical headset, but, you know, it's a

196:13 passive plug in the ear, and, you know, it's basically

196:14 just attenuating the sound. And that's -- that's, you

196:15 know, it's a positive indication of the passive

196:16 attenuation, but, again, the performance, you know, on

196:17 this test, you know, as anticipated probably did worse

196:18 than the other tactical headsets for -- on this

196:19 QuickSIN test.

196:22 - 197:05 Hobbs, Brian 2020-07-16

196:22 Q. And just to sort of follow up on that, so Re: [196:22 to 197:05]

196:23 the idea is that the test is designed to see how well Pltf Obj 403, 702, MIL G7

196:24 you can hear something, and when you combine the green

196:25 end of the dual-ended plug with this other device, it

197:01 did slightly worse, which was an indication to you

197:02 that it was working because it was attenuating sound,

197:03 correct?

197:04 A. Attenuated the speech that you're trying to

197:05 hear.

197:07 - 202:04 Hobbs, Brian 2020-07-16

197:07 Q. And then if you look a little further down, Re: [197:07 to 202:04]

197:08 it says, "the fact that there is some performance Pltf Obj 402, 403, 702, vague,

197:09 differences between the Combat Arms Earplug green and

hearsay, MIL G7

197:10 yellow ends is an indication of the functionality of

197:11 the earplug." Tell me what that means.

197:12 A. Well, again, just that, you know, the green

197:13 is continuous noise -- you know, kind of blocks out

197:14 everything. The yellow ends attenuates and lets the

197:15 ambient noise in, and, you know, reduce the impulse

197:16 noise -- noise exposure.

197:17 And, you know, you know, by the subject, you

197:18 know, the subject is doing better with the yellow end

197:19 inserted versus the green end inserted, you know,

197:20 again, it could be an indication that the yellow is

197:21 letting your ambient environment through and not

197:22 attenuating it as much as the green end or the

197:23 continuous noise.

197:24 Q. Thank you. All right. So now if we move

197:25 to section 7 of the report, Localization Measurements,

198:01 this is something we talked about earlier with

198:02 plaintiff's counsel; is that right?

198:03 A. Yes, sir.

198:04 Q. And just so I understand it --

198:05 Will, if you'll go to page 67 and just show the

198:06 sphere with the person standing in it.

198:07 So if I understand this, the idea is that a

198:08 person is standing in this sphere and sounds are

198:09 coming at them from all directions, right?

198:10 A. Not all at one time.

198:11 Q. Fair point.

198:12 A. Yeah.

198:13 Q. A single sound would come from one

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198:14 direction, and the test subject would then need to

198:15 figure out and identify where that sound came from,

198:16 correct?

198:17 A. Yes, sir.

198:18 Q. I think you said they had a wand in their

198:19 hand and they would literally point in the direction

198:20 they thought the sound came from, right?

198:21 A. Yes, sir.

198:22 Q. And then you would then go to another

198:23 location, sound would come, and the test subject would

198:24 point to where that next sound came from, and you

198:25 would do that over a series of different kinds of

199:01 sounds and from different directions, right?

199:02 A. Yes, sir.

199:03 Q. And then you would measure how many times

199:04 the test subject got it right and how many times the

199:05 test subject got it wrong, right?

199:06 A. It wasn't really right and wrong. It was

199:07 if they were right, it was more the error, the angular

199:08 error. So, I mean, if they got it right, there was

199:09 zero degrees of angular error. If they got it wrong,

199:10 it was to what degree the angular error.

199:11 Q. Gotcha. So it wasn't just the black and

199:12 white, right or wrong. It was how much did you get it

199:13 right, or, if you missed it, how far off were you.

199:14 A. Yes, sir.

199:15 Q. Okay. And then you, as I understand it,

199:16 you would have maintained and kept track of the

199:17 ultimate results of all these devices you were

199:18 testing, right?

199:19 A. Yes, sir.

199:20 Q. And some of these devices, were they

199:21 electronic devices that actually amplified the sound?

199:22 A. They were pretty much at least linear gain,

199:23 you know, like -- so, in other words, you know,

199:24 whatever was going into the mic came out into the ear

199:25 until a certain point when they would compress, and

200:01 then -- but whether or not some of them amplified -- I

200:02 guess it would probably just depend on the setting,

200:03 the volume setting and all that.

200:04 Q. But they had electronic aid for the test

200:05 subject or the listener.

200:06 A. Yes, sir.

200:07 Q. Except for the Combat Arms earplug, which

200:08 was passive and had no electronic enhancement at all,

200:09 correct?

200:10 A. That's correct.

200:11 Q. And then you created various charts that

200:12 showed the performance of these different devices,

200:13 correct?

200:14 A. Yes, sir.

200:15 Q. And so you were shown some of these, but

200:16 I'd like to revisit those, if we could.

200:17 Will, if you'll go to page 68.

200:18 And this chart that we're looking at now is the

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 196 of 305
200:19 overall error, correct?

200:20 A. Yes, sir.

200:21 Q. In other words, you were looking at

200:22 different things left to right, did you miss it front

200:23 to back, what are the angles. This is a combination

200:24 of all that, correct?

200:25 A. I believe so, yes, sir.

201:01 Q. All right. And the first thing you look at

201:02 is the open end or the open ear, and that's just the

201:03 test subject is tested and they don't have anything in

201:04 their ear, right?

201:05 A. Yes, sir.

201:06 Q. And even with nothing in the ear, if you

201:07 got a burst -- and what is a burst sound?

201:08 A. A burst, I think, in the methods section

201:09 was 250 milliseconds.

201:10 Q. Okay. And then the second was continuous,

201:11 and obviously that's a longer version of the sound.

201:12 A. Yeah, it would, I believe, stay on until

201:13 the subject responded -- until the subject actually,

201:14 you know, the subject take their time to find the --

201:15 find the sound.

201:16 Q. And so even in the open ear there was some

201:17 error by the test subject.

201:18 A. Yes, sir.

201:19 Q. And then if we look at the yellow plug, the

201:20 yellow end of the Combat Arms plug, that's the one

201:21 that's got the hole in it, that's got the filter or

201:22 whatever you want to call it that allows some ambient

201:23 sound in, right?

201:24 A. Yes, sir.

201:25 Q. And plaintiff's counsel had you compare it

202:01 to the open ear indicating that it is somewhat worse

202:02 and there's more error if you compare the yellow end

202:03 to just the plain open end, right?

202:04 A. Yes, sir.

202:15 - 203:03 Hobbs, Brian 2020-07-16

202:15 Q. Well, let's do that. So if we compare the Re: [202:15 to 203:03]

202:16 yellow, let's say -- let's start with the CEPS. Pltf Obj 402, 403, 702, vague,

202:17 That's the next one after the open ear. Is it fair to hearsay, MIL G7

202:18 say that in both continuous noise and burst that the

202:19 yellow end of the plug performed better?

202:20 A. Yes, sir.

202:21 Q. To save time, as we walk through the next

202:22 one, the Nacre device, the yellow end of the plug

202:23 performed better?

202:24 A. Yes, sir.

202:25 Q. And for every single device that you tested

203:01 at the Air Force Research Lab, the yellow end of a

203:02 Combat Arms earplug performed better, correct?

203:03 A. Yes, sir.

203:05 - 203:08 Hobbs, Brian 2020-07-16

203:05 Q. Not a single plug that you can turn on and Re: [203:05 to 203:08]

203:06 turn off and is electronic and is more expensive, not Pltf Obj 402, 403, 702, vague,

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203:07 a single one of them did as well as the yellow end of MIL G7

203:08 the plug, right?

203:10 - 203:10 Hobbs, Brian 2020-07-16

203:10 A. Yes, sir. Re: [203:10 to 203:10]

Pltf Obj 402, 403, 702, vague,

MIL G7

203:11 - 203:1Hobbs, Brian 2020-07-16

203:11 Q. And then you were asked some questions

203:12 about the green end of the Combat Arms plug, and

203:13 across the board it did better than some and worse

203:14 than some, right?

203:15 A. Well, with regards to the burst, the Combat

203:16 Arms earplug green did have more angular error than

203:17 the -- than all the others.

203:23 - 204:08 Hobbs, Brian 2020-07-16

203:23 Q. I'll reask it. I'll reask it. The green Re: [203:23 to 204:08]

203:24 end of the plug is a solid plug that is designed for Pltf Obj 402, 403, 602, 702,

203:25 continuous -- vague, MIL G7

204:01 A. Yes, sir.

204:02 Q. The yellow end was the open end that was

204:03 designed for impulse noise, right?

204:04 A. Yes, sir.

204:05 Q. As it relates to continuous noise on this

204:06 chart, the green end did better than some and worse

204:07 than some, correct?

204:08 A. Yes, sir.

204:25 - 205:11 Hobbs, Brian 2020-07-16

204:25 Q. That's okay. We can cover this quickly. Re: [204:25 to 205:11]

205:01 If you go to the next page, Will, page 69, if you look Pltf Obj 402, 403, 702, vague,

205:02 at the top chart, and you look at the yellow end of hearsay, MIL G7

205:03 the Combat Arms plug, in this front-back localization

205:04 test, the yellow plug performs either as well as or

205:05 better than all the other devices? One is close and I

205:06 just can't tell ...

205:07 A. Yes, sir.

205:08 Q. And then if we go to the next chart, which

205:09 is below that, which is the left to right error

205:10 degree, it's clear there that the yellow plug

205:11 outperforms all the other plugs, right?

205:13 - 205:25 Hobbs, Brian 2020-07-16

205:13 A. Well, with the continuous -- it looks like Re: [205:13 to 205:25]

205:14 the burst also. Pltf Obj 402, 403, 702, vague,

205:15 Q. Yeah, with both of them. And with the hearsay, MIL G7

205:16 green plug, in this one it does better than some and

205:17 worse than some, right, on both burst and continuous.

205:18 A. Yes, sir.

205:19 Q. And then if we go to the next page, it has

205:20 the last two charts on page 70. If we look at the

205:21 first one, Fig. 55, again, if we look at the yellow

205:22 end of the Combat Arms plug, it performs better than

205:23 all the other devices, right, on both burst and

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205:24 continuous?

205:25 A. Yes, sir.

206:02 - 206:12 Hobbs, Brian 2020-07-16

206:02 Q. So if you can draw a yellow circle around Re: [206:02 to 206:12]

206:03 that, Will, maybe or highlight that CAEP-Y, those two, Pltf Obj 402, 403, 702, vague,

206:04 that blue and white bar. hearsay, MIL G7

206:05 (Marking)

206:06 Q. So if we look -- that's the yellow and the

206:07 green of the Combat Arms plug, right?

206:08 A. Yes, sir.

206:09 Q. And we can see that the yellow on all

206:10 scores performs better than the other devices you

206:11 looked at, correct?

206:12 A. Yes, sir.

206:14 - 208:16 Hobbs, Brian 2020-07-16

206:14 Q. And then if we look over on the next page, Re: [206:14 to 208:16]

206:15 you actually have a discussion of these tests, Pltf Obj 402, 403, 602, 702,

206:16 correct? vague, argumentative, hearsay,

206:17 A. Yes, sir. MIL G5, MIL G7

206:18 Q. Section 7.3. And if you look under section

206:19 7.3.1.1, do you see that section, sir?

206:20 A. Yes, sir.

206:21 Q. And if you look at the second paragraph, it

206:22 begins "passive plug." Do you see that?

206:23 A. Yes, sir.

206:24 Q. It says:

206:25 "Passive plug performance showed

207:01 considerable differences between the

207:02 impulse and continuous noise options,

207:03 especially in regards to the Combat

207:04 Arms earplug green (continuous noise)

207:05 and the Combat Arms earplug yellow

207:06 (impulse noise). The Sennheiser

207:07 SLC-110 exhibited less

207:08 differentiation between closed and

207:09 open conditions, which may be related

207:10 to the minimal attenuation

207:11 differences noted between the two

207:12 settings. In other words, the Combat

207:13 Arms Earplug seems to work as

207:14 advertised, in that there are

207:15 significant differences between the

207:16 continuous and impulse settings,

207:17 whereas the Sennheiser SLC-110 showed

207:18 minimal differences."

207:19 Did I read that correctly?

207:20 A. Yes, sir.

207:21 Q. And the report and your team state that the

207:22 Combat Arms earplug seems to work as advertised

207:23 because there are significant differences between

207:24 continuous and impulse settings. Tell me what that

207:25 means.

208:01 A. Well, I'm not sure "advertised" is the

208:02 right word there, you know, looking back on it, but,

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208:03 yeah, I mean, essentially Combat Arms earplug, I mean,

208:04 that's what the green is meant for the continuous

208:05 noise, the yellow is meant for the impulse noise, you

208:06 know. It's two -- you're looking for two different,

208:07 you know, uses for that plug, and you're kind of, you

208:08 know, you know, throughout that testing, I mean, you

208:09 know, there were differences between the yellow side

208:10 and the green side.

208:11 Q. And whether it was looking back on it, they

208:12 were the right words to use back when you wrote the

208:13 report before you talked to lawyers and you were

208:14 giving depositions, the words that you used were to

208:15 that effect, right?

208:16 A. That's correct.

208:18 - 208:22 Hobbs, Brian 2020-07-16

208:18 Q. Then the last section I'm going to ask you

208:19 about on this report and then maybe we'll take a short

208:20 break is section 8, and this is the Electroacoustic

208:21 Characterization section.

208:22 A. Correct.

209:06 - 209:09 Hobbs, Brian 2020-07-16

209:06 Q. Let me see if I can help you. So if you'll

209:07 go to page 96 it talks about the Passive TH, 8.3.1.3.

209:08 A. Yeah. It looks like it was just the

209:09 earplug itself.

209:23 - 210:25 Hobbs, Brian 2020-07-16

209:23 Under this section, did you and your team Re: [209:23 to 210:25]

209:24 report that, "As expected, the results of the Pltf Obj 402, 403, 702, vague,

209:25 characterization of passive earplugs were limited in hearsay, leading, MIL G7

210:01 regards to both frequency and intensity. In fact,

210:02 when the CAEP, Combat Arms Earplug-Green end was

210:03 inserted, a response could not be recorded due to the

210:04 limitations of the recording setup."

210:05 Did I read that correctly?

210:06 A. Yes, sir.

210:07 Q. What does that mean?

210:08 A. Well, let's see. So, you know, basically,

210:09 we were playing a different spectrum of sound and then

210:10 recording it through KEMAR, through another manikin

210:11 head, and -- and at whatever levels we were putting

210:12 into there, there just wasn't, you know, the KEMAR has

210:13 that microphone, you know, in the manikin head, and,

210:14 basically, you know, I mean, it's -- as far as I can

210:15 tell, you know, there wasn't a response -- there

210:16 wasn't a response recorded, you know, due to the

210:17 attenuation of the earplug.

210:18 Q. Right. And the next sentence says, "This

210:19 indirectly supports the amount of attenuation provided

210:20 by this earplug," right?

210:21 A. Yes, sir.

210:22 Q. And the idea that this is trying to convey

210:23 is that the attenuation from the green end of the plug

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210:24 was such that your recording equipment couldn't take a

210:25 measurement, right?

211:02 - 211:25 Hobbs, Brian 2020-07-16

211:02 A. Yeah, it -- it could take a measurement, Re: [211:02 to 211:25]

211:03 but the sound wasn't loud enough to -- to get Pltf Obj 402, 403, 602, 702,

211:04 recorded. vague, hearsay, leading, MIL

211:05 Q. And that was a positive indication that the G7

211:06 plug was working, right?

211:07 A. Yes, sir. Yes, sir.

211:08 Q. So just to sort of summarize all this, and

211:09 just so we're clear, this WHISPr Study that we've been

211:10 talking about, you, in fact, did test the Combat Arms

211:11 earplug dual-end, correct?

211:12 A. Yes, sir.

211:13 Q. You recorded your results, correct?

211:14 A. Yes, sir.

211:15 Q. You and your team were truthful in what you

211:16 had to say about the results, correct?

211:17 A. Yes, sir.

211:18 Q. You considered them unbiased findings,

211:19 correct?

211:20 A. Yes, sir.

211:21 Q. You knew that this was being prepared for

211:22 the Marine Corps and expected others to review it,

211:23 right?

211:24 A. At least the Marine Corps. Again, I wasn't

211:25 sure who else would look at it or see it or review it.

212:09 - 212:11 Hobbs, Brian 2020-07-16

212:09 Q. The report was -- your results were put Re: [212:09 to 212:11]

212:10 into a report and became a record of the United States Pltf Obj 403, 602, vague,

212:11 military, correct? leading, MIL G5, MIL G7

212:13 - 212:22 Hobbs, Brian 2020-07-16

212:13 A. I believe that's the right word to use. Re: [212:13 to 212:22]

212:14 Again, I'm not, you know, I wrote it there or, you Pltf Obj 403, 602, 702, vague,

212:15 know, not wrote it, but wrote it in conjunction with leading, MIL G5, MIL G7

212:16 the others, but, you know, whatever the right words

212:17 are for the Air Force to document the report and

212:18 format the report.

212:19 Q. And in your report you and your team

212:20 describe the green end of the plug as providing very

212:21 good attenuation. That's how you worded it back at

212:22 the time you wrote it, right?

212:24 - 213:08 Hobbs, Brian 2020-07-16

212:24 A. Yes, sir. Yes, sir. Re: [212:24 to 213:08]

212:25 Q. And you -- and you described the yellow end Pltf Obj 403, 602, 702, vague,

213:01 of the plug and the plug itself as seeming to work as leading, argumentative, MIL

213:02 advertised, correct? G5, MIL G7

213:03 A. Yes, sir.

213:04 Q. All words that were chosen by you and your

213:05 team before lawyers and others began interviewing you

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213:06 and talking to you and preparing for depositions,

213:07 right?

213:08 A. Yes, sir.

225:17 - 227:06 Hobbs, Brian 2020-07-16

225:17 Q. Okay. Shift gears. We talked a little bit Re: [225:17 to 227:06]

225:18 about slippage and loosening of plugs. Do you recall Pltf Obj 403, 602, 702,

225:19 the questions and answers from plaintiff's counsel on foundation, vague,

225:20 that? argumentative, MIL G5, MIL G7

225:21 A. Yes.

225:22 Q. Okay. Your REAT testing, you actually

225:23 would have had subjects place the dual-ended Combat

225:24 Arms earplug in their ear, correct?

225:25 A. Yes, after -- yes.

226:01 Q. And then there would have been a series of

226:02 tests at different frequencies over time, correct?

226:03 A. Yes.

226:04 Q. And you know that they raised their hand,

226:05 did they push a button, did they speak. What

226:06 activities did they engage in during the REAT testing

226:07 that would have been performed on an individual

226:08 subject?

226:09 A. Pushed a button.

226:10 Q. Okay. And they would have been tested with

226:11 at different frequency levels?

226:12 A. Across different frequencies, yes, at

226:13 different intensity levels.

226:14 Q. And do you know how many tests were done at

226:15 each frequency?

226:16 A. No, but, you know, I would just defer to

226:17 the standard. Whatever the standard called for,

226:18 that's what we tested to.

226:19 Q. Do you know how long an individual test

226:20 took to complete from beginning to end?

226:21 A. For the REAT test? I do not know the exact

226:22 time. I can give you a roundabout number, but I don't

226:23 know the exact time.

226:24 Q. In calculating the NRR number that's

226:25 contained in the WHISPr chart, would you -- would it

227:01 show you variability at the different frequencies?

227:02 A. There's standard deviations at each -- at

227:03 each frequency.

227:04 Q. And if you saw, for example, if you had a

227:05 plug that loosened and lost its seal, would you expect

227:06 to see variability in the test?

227:09 - 227:09 Hobbs, Brian 2020-07-16

227:09 A. I would expect that, yes. Re: [227:09 to 227:09]

Pltf Obj 403, 602, 702,

foundation, vague,

argumentative, MIL G5, MIL G7

227:24 - 228:03 Hobbs, Brian 2020-07-16

227:24 Q. I'll ask it your way. Is it fair to say Re: [227:24 to 228:03]

227:25 that you got consistent fit and consistent results in Pltf Obj 403, 602, 702,

228:01 the test subjects that you conducted REAT tests on as foundation, vague,

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228:02 part of the WHISPr Study? argumentative, MIL G5, MIL G7

228:03 A. Yes, sir.

228:13 - 228:19 Hobbs, Brian 2020-07-16

228:13 Q. Right. And so once the plug was fitted, is Re: [228:13 to 228:19]

228:14 it fair to say that, at least in your report, there's Pltf Obj 403, 602, 702,

228:15 no indication that any particular subject either had foundation, vague,

228:16 difficulty fitting the plug or it came out during the argumentative, MIL G5, MIL G7

228:17 test? There's no indication of that in the report,

228:18 correct?

228:19 A. That's correct.

229:10 - 229:14 Hobbs, Brian 2020-07-16

229:10 Q. Right. Well, in fact, not only have you Re: [229:10 to 229:14]

229:11 heard it said, the United States military has trained Pltf Obj 403, 602, 702, vague,

229:12 the audiology community with earplugs, like these argumentative, MIL G1, MIL G2,

229:13 preformed plugs, that loosening and slippage is a MIL G5, MIL G7

229:14 common occurrence, right?

229:17 - 229:21 Hobbs, Brian 2020-07-16

229:17 A. Yeah, I -- yeah, I would say that. Re: [229:17 to 229:21]

229:18 Q. Yes. Let's go back to Exhibit -- it's tab Pltf Obj 403, 602, 702, vague,

229:19 2. argumentative, MIL G1, MIL G2,

229:20 And, Will, what is the exhibit number? I think MIL G5, MIL G7

229:21 it's 13.

230:01 - 231:24 Hobbs, Brian 2020-07-16

230:01 You'll recall, Dr. Hobbs, that this was the Re: [230:01 to 231:24]

230:02 1996 DoD Instruction that we talked about earlier, Pltf Obj 403, 602, Foundation,

230:03 correct? Leading, Hearsay, Touhy, MIL

230:04 A. Yes. G1, MIL G2, MIL G6

230:05 Q. And it would have been in place until it

230:06 was taken out of service in -- and I don't remember if

230:07 it was 2004 or 2006 -- but the DoD Instruction that

230:08 Mr. Buchanan showed you earlier, correct?

230:09 A. Yes.

230:10 Q. And this would have been the Department of

230:11 Defense of the United States Military giving

230:12 instructions to the military branches, true?

230:13 A. Yes.

230:14 Q. Now if you will turn to page 16, you see

230:15 there is a paragraph 8 that says "Effective Date"? Do

230:16 you see that?

230:17 A. Yes.

230:18 Q. And then these instructions are signed by

230:19 the Undersecretary of Defense for Acquisition and

230:20 Technology, correct?

230:21 A. Yes.

230:22 Q. And then it gives an inclusion of 18

230:23 enclosures that go with these instructions, right?

230:24 A. Yes.

230:25 Q. And if you'll go down to what's enclosure

231:01 6, can you tell the jury what that enclosure

231:02 references?

231:03 A. "Earplugs: General Information Poster."

231:04 Q. Have you seen from time to time in the

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231:05 audiology community military posters used in training?

231:06 A. Yes.

231:07 Q. And if you'll turn over to page 25, is this

231:08 the enclosure that was referenced earlier, E6?

231:09 A. Yes.

231:10 Q. And does it provide general information

231:11 about earplugs?

231:12 A. Yes.

231:13 Q. It's got a list of seven things that are

231:14 common of general information that the DoD is giving

231:15 instruction about; is that true?

231:16 A. Yes.

231:17 Q. And what does the Department of Defense say

231:18 about earplugs under item No. 3?

231:19 A. Item No. 3 says, "Plugs tend to work loose

231:20 as a result of talking and chewing and must be

231:21 reseated."

231:22 Q. And really it was common knowledge that

231:23 earplugs, when in use, tended to work loose over time,

231:24 correct?

232:02 - 232:04 Hobbs, Brian 2020-07-16

232:02 Q. Well, it was your knowledge that earplugs, Re: [232:02 to 232:04]

232:03 as instructed by the DoD, could loosen or slip even Pltf Obj 403, 702, Foundation,

232:04 with things simply as talking and chewing. Leading, Hearsay, Touhy, MIL

G1, MIL G2, MIL G5, MIL G6

232:06 - 232:06 Hobbs, Brian 2020-07-16

232:06 A. Yes, sir, according to the DoD. Re: [232:06 to 232:06]

Pltf Obj 403, Foundation,

Leading, Touhy, MIL G1, MIL G2

232:19 - 232:23 Hobbs, Brian 2020-07-16

232:19 Q. Have you ever trained soldiers or personnel Re: [232:19 to 232:23]

232:20 that are responsible for fitting and examining hearing Pltf Obj 402, 403, Vague,

232:21 protection devices that these plugs loosen pretty Touhy

232:22 easily in general and that you need to reseat them

232:23 from time to time?

233:01 - 233:04 Hobbs, Brian 2020-07-16

233:01 A. Yeah. Yeah, I talk about, you know, just Re: [233:01 to 233:04]

233:02 the importance of the fit just in general, so, yeah, Pltf Obj 402, 403, Vague,

233:03 the importance of the fit, you know, making sure Touhy

233:04 they're seated and -- yeah.

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Pltf Objections Objections Rulings

6:14 - 6:15 Keefer, Emily 2020-09-23

6:14 Q. Could you please state your full

6:15 name for the record?

6:18 - 6:18 Keefer, Emily 2020-09-23

6:18 A. Emily Ila Keefer.

9:01 - 9:06 Keefer, Emily 2020-09-23

9:01 Q. Okay. So, where were you born,

9:02 Ms. Keefer?

9:03 A. In Toledo, Ohio.

9:04 Q. Okay. And what is your date of

9:05 birth?

9:06 A. 2/22 of '82.

10:15 - 11:01 Keefer, Emily 2020-09-23

10:15 Q. Fair enough. So, when did you

10:16 first meet Lewis Keefer?

10:17 A. We actually grew up down the

10:18 road from each other as kids, so

10:19 elementary school. Probably five, six

10:20 years old maybe. Maybe even before that.

10:21 Q. And when did your relationship,

10:22 or romantic relationship with Mr. Keefer

10:23 begin?

11:01 A. Not until 2007. About 2007.

13:01 - 13:09 Keefer, Emily 2020-09-23

13:01 Q. That's fine. So, when did

13:02 you -- was your acquaintance with Mr.

13:03 Keefer continuous from school through

13:04 when you began your romantic

13:05 relationship, or did -- go ahead.

13:06 A. No, sir.

13:07 Q. So you fell out of touch for a

13:08 while?

13:09 A. For quite a while, yes.

14:05 - 14:21 Keefer, Emily 2020-09-23

14:05 Q. Thank you. So Mr. Keefer was --

14:06 you said you -- said that Mr. Keefer was

14:07 living in Georgia when you became

14:08 reacquainted?

14:09 A. Correct.

14:10 Q. And was he in the military at

14:11 that time?

14:12 A. Yes.

14:13 Q. And did you know how long he had

14:14 been in the military?

14:15 A. I couldn't give you an exact

14:16 date when -- maybe six months. But I

14:17 can't -- I can't, you know, give you an

14:18 exact date. I'm not certain.

14:19 Q. It hadn't been long?

14:20 A. No. Not -- not terribly long,

14:21 no.

14:22 - 15:07 Keefer, Emily 2020-09-23

14:22 Q. Okay. And had Mr. Keefer been Re: [14:22 to 15:07]

14:23 married before your relationship began? Pltf Obj 402, 403

15:01 A. He had, yes.

3M Affirmatives Pltf Counters

OBJECTION WITHDRAWN, 

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15:02 Q. Had that marriage ended by the

15:03 time you were in contact?

15:04 A. That, I am not certain.

15:05 Q. Had he separated from his first

15:06 wife?

15:07 A. Oh, yes.

16:12 - 16:17 Keefer, Emily 2020-09-23

16:12 Q. So, how long were you in touch

16:13 with Mr. Keefer before you got married?

16:14 A. Between four and six months. I

16:15 couldn't tell you. It was long distance

16:16 and, like I said, timelines, everything

16:17 runs together.

17:13 - 17:15 Keefer, Emily 2020-09-23

17:13 Q. Okay. Do you remember the date

17:14 of your wedding?

17:15 A. March 1st, 2008.

20:08 - 20:10 Keefer, Emily 2020-09-23

20:08 Q. After your marriage to Mr.

20:09 Keefer, is that when you moved to

20:10 Georgia?

20:16 - 21:16 Keefer, Emily 2020-09-23

20:16 Yes. I -- I moved to Georgia

20:17 after we were married.

20:18 Q. Was that immediate, or was there

20:19 a delay?

20:20 A. There was an approximate lapse

20:21 of time of about a month just to get

20:22 things situated and, you know, taken care

20:23 of. It wasn't a knee-jerk move. It --

21:01 everything was laid out and taken care of

21:02 before I moved.

21:03 Q. And where were you living when

21:04 you moved to -- when you moved in with

21:05 Mr. Keefer in Georgia?

21:06 A. On base. Base housing, Fort

21:07 Benning.

21:08 Q. And was that an apartment?

21:09 A. If you're familiar with base

21:10 housing, it was an older -- okay. Well,

21:11 it was an older section. It was like a

21:12 multifamily kind of -- almost like a

21:13 townhouse. But it was probably six --

21:14 six families in one building, but we all

21:15 had our own space. Does that make sense?

21:16 I don't even know how to describe it.

24:18 - 24:21 Keefer, Emily 2020-09-23

24:18 Q. Okay. When you were living on a

24:19 base -- bases with Mr. Keefer, did he

24:20 ever bring home hearing protection

24:21 devices?

25:02 - 25:03 Keefer, Emily 2020-09-23

25:02 A. As part of his uniform, I -- I

25:03 saw them.

25:04 - 25:06 Keefer, Emily 2020-09-23

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 206 of 305
25:04 Q. Okay. Can you describe the

25:05 devices?

25:06 A. I could not. No.

26:22 - 26:22 Keefer, Emily 2020-09-23

26:22 Q. Do you recognize those earplugs?

27:01 - 27:06 Keefer, Emily 2020-09-23

27:01 A. I do not. I should clarify.

27:02 His ear protection was always in a case

27:03 that was on like a chain that he would

27:04 put on his belt. So I didn't actually

27:05 see the protection, the actual earplug.

27:06 It was a case that he carried.

27:11 - 27:13 Keefer, Emily 2020-09-23

27:11 What was your understanding of

27:12 Mr. Keefer's role in the military when he

27:13 was serving in the United States?

27:15 - 27:17 Keefer, Emily 2020-09-23

27:15 A. He was a medic.

27:16 Q. And what did you understand his

27:17 sort of daily responsibilities to be?

27:19 - 27:19 Keefer, Emily 2020-09-23

27:19 A. I have no idea.

31:17 - 31:19 Keefer, Emily 2020-09-23

31:17 Q. Did he mention wearing any

31:18 particular hearing -- hearing protection

31:19 devices when he served in Iraq?

31:21 - 32:01 Keefer, Emily 2020-09-23

31:21 A. Again, there wasn't very much

31:22 information shared about what he did or

31:23 what his responsibilities were while he

32:01 was there.

33:02 - 33:16 Keefer, Emily 2020-09-23

33:02 When in particular would you

33:03 note -- sort of date this change? When

33:04 did you first notice a decline in Mr.

33:05 Keefer's hearing?

33:06 A. There weren't a lot of -- well,

33:07 I mean, there was training -- it was -- I

33:08 mean, it was gradual. It -- it wasn't

33:09 like a night-and-day difference one day.

33:10 You know, there were a lot of training

33:11 exercises. There was TDYs. So it was

33:12 just -- it -- it was a gradual change. I

33:13 would say -- you know, I couldn't give

33:14 you a specific date or even a specific

33:15 year. I just know that over the years it

33:16 got worse.

33:23 - 34:02 Keefer, Emily 2020-09-23

33:23 Q. Yeah. Do you recall if in 2008

34:01 you noticed any decline in Mr. Keefer's

34:02 hearing?

34:04 - 34:09 Keefer, Emily 2020-09-23

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 207 of 305
34:04 A. In 2008? That -- that was right

34:05 at the beginning. So that would have

34:06 kind of been more of my -- I guess more

34:07 of the better baseline for me because

34:08 that was the beginning for us, the

34:09 beginning of every day for us.

34:18 - 34:22 Keefer, Emily 2020-09-23

34:18 During that first year of living

34:19 together in Georgia, you did not notice

34:20 any change in Mr. Keefer's hearing from

34:21 when you had first gotten back in

34:22 contact. Is that correct?

35:01 - 35:11 Keefer, Emily 2020-09-23

35:01 A. There was a slight difference.

35:02 You know, like I said, it -- it was

35:03 gradual throughout the time. It -- it

35:04 gradually got worse. But yes, there was

35:05 a slight difference. Each year it was --

35:06 it was different. Back in 2007, you

35:07 know, you're using a Razr flip phone, and

35:08 there wasn't options for much else. And

35:09 yes, I noticed a difference. Was it a

35:10 huge difference? Probably not. Was

35:11 there a difference? Yes.

35:12 - 35:22 Keefer, Emily 2020-09-23

35:12 Q. And what was the main -- sort of

35:13 the first thing that tipped you off as to

35:14 a decline in Mr. Keefer's hearing?

35:15 A. When you have to say something

35:16 more than once. I mean, that was pretty

35:17 self-explanatory. I would hope that my

35:18 husband wasn't ignoring me, but you and I

35:19 both know that that happens sometimes.

35:20 Q. Did that ever happen early on in

35:21 your -- when you became reacquainted with

35:22 Mr. Keefer?

36:01 - 36:04 Keefer, Emily 2020-09-23

36:01 A. When I had to repeat myself?

36:02 Q. Yes.

36:03 A. Early on? Not nearly as much as

36:04 later on.

36:12 - 37:01 Keefer, Emily 2020-09-23

36:12 Q. It's fair enough. But you

36:13 noticed -- you first noticed having to

36:14 repeat yourself more often in 2008. Is

36:15 that your testimony?

36:16 A. More often? I -- I wouldn't --

36:17 I'm not going to say that's my testimony.

36:18 I told you that there was gradual -- it

36:19 gradually got worse. It gradually got to

36:20 the point where I was repeating myself

36:21 more often. From day one to day 365,

36:22 yes. I mean, I repeated myself more.

36:23 Was I repeating myself as much as the

37:01 end? No.

37:02 - 37:06 Keefer, Emily 2020-09-23

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 208 of 305
37:02 Q. And you also mentioned that Mr.

37:03 Keefer -- well, did -- did you notice Mr.

37:04 Keefer having trouble understanding

37:05 conversation in groups of people?

37:06 A. Yes.

37:07 - 38:10 Keefer, Emily 2020-09-23

37:07 Q. And when -- when did you first

37:08 notice that?

37:09 A. I --

37:10 Q. Go ahead. Sorry.

37:11 A. Now, I can't speak for him. I

37:12 just noticed the -- his body language,

37:13 his facial expressions. And yes, it was

37:14 a dumbfounded look, like he wasn't sure

37:15 what exactly was going on or what was

37:16 being said.

37:17 Q. And when did you first notice

37:18 that?

37:19 A. Probably -- probably later in

37:20 that year. Early on in the marriage, we

37:21 spent more time with like groups. Once

37:22 we had our family, it wasn't so much

37:23 groups. So younger years, early on in

38:01 our marriage, I noticed that. But it --

38:02 it continued and, you know, even through

38:03 his service, I did notice if we went to

38:04 events or whatnot -- when I say "events,"

38:05 I mean like battalion events or unit

38:06 events where he was with his coworkers --

38:07 it would be the same thing. Standing in

38:08 a group of, you know, four or six people

38:09 even close, you could almost see the

38:10 struggle.

38:18 - 38:21 Keefer, Emily 2020-09-23

38:18 Q. So, before Mr. Keefer deployed Re: [38:18 to 38:21]

38:19 to Iraq, had you already noticed having Pltf Obj Incomplete

38:20 to repeat yourself more often? Designation

38:21 A. In the beginning, yes.

38:22 - 39:02 Keefer, Emily 2020-09-23

38:22 Q. And had you noticed Mr. Keefer

38:23 having trouble interacting in social

39:01 settings?

39:02 A. Some.

39:08 - 39:12 Keefer, Emily 2020-09-23

39:08 Before Mr. Keefer, deployed to

39:09 Iraq in late 2009, had you noticed him

39:10 having more difficulty interacting in

39:11 social settings?

39:12 A. Yes.

39:14 - 39:15 Keefer, Emily 2020-09-23

39:14 A. But it still wasn't as much as

39:15 the end.

44:11 - 44:11 Keefer, Emily 2020-09-23

44:11 Q. Did Mr. Keefer have any ringing

44:12 - 44:22 Keefer, Emily 2020-09-23

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44:12 in the ear, or did he complain of ringing

44:13 in his ears at any point during his

44:14 military service?

44:15 A. Yes, he did.

44:16 Q. And when did that begin?

44:17 A. Noticed more probably right

44:18 after we moved to Hawaii, I want to say.

44:19 Q. Was that the first -- the first

44:20 you heard of ringing in the ears was --

44:21 from Mr. Keefer was after he moved to

44:22 Hawaii?

45:01 - 45:01 Keefer, Emily 2020-09-23

45:01 A. That he was vocal.

45:05 - 45:07 Keefer, Emily 2020-09-23

45:05 Q. So the first time he was vocal Re: [45:05 to 45:07]

45:06 about ringing in the ears was after he Pltf Obj 611; leading, 602

45:07 moved to Hawaii?

45:09 - 45:09 Keefer, Emily 2020-09-23

45:09 Q. Is that correct?

45:11 - 45:16 Keefer, Emily 2020-09-23

45:11 A. That he was vocal with me. Re: [45:11 to 45:16]

45:12 Q. I'm sorry. So there was no Pltf Obj 611; leading;

45:13 complaint of ringing in the ears that you cumulative

45:14 recall from Mr. Keefer before he moved to

45:15 Hawaii?

45:16 A. Not that I recall.

49:22 - 49:23 Keefer, Emily 2020-09-23

49:22 Q. When did you and Mr. Keefer

49:23 leave Hawaii?

50:02 - 51:01 Keefer, Emily 2020-09-23

50:02 A. Two thousand -- I -- I left in

50:03 February of 2015. He left after his ETS

50:04 date, I believe in April of 2015.

50:05 Q. And when you left in February,

50:06 where did you go?

50:07 A. Oklahoma.

50:08 Q. And why did you go to Oklahoma?

50:09 A. Because I got a job with the

50:10 Department of Corrections.

50:11 Q. And where in Oklahoma was that?

50:12 A. Hobart.

50:13 Q. And where is Hobart?

50:14 A. Southwest Oklahoma.

50:15 Q. And Mr. Keefer joined you there

50:16 two months later?

50:17 A. Correct.

50:18 Q. Had Mr. Keefer found a job in

50:19 Oklahoma at that time?

50:20 A. When he got there, I don't

50:21 believe he had a job. It was shortly

50:22 after.

50:23 Q. And why did Mr. Keefer leave the

51:01 military?

51:03 - 51:09 Keefer, Emily 2020-09-23

51:03 A. I couldn't tell you. He -- it's Re: [51:03 to 51:09]

OBJECTION WITHDRAWN, 

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OBJECTION WITHDRAWN 

 

OBJECTION WITHDRAWN, 

3/13/2021

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 210 of 305
51:04 my understanding he decided to ETS. Pltf Obj 402, 403, 602, MIL re

51:05 Q. And what -- what does ETS mean? bad acts

51:06 A. End of time in service.

51:07 Q. Do you understand that Mr.

51:08 Keefer ever had any disciplinary

51:09 proceedings brought against him?

51:11 - 52:09 Keefer, Emily 2020-09-23

51:11 A. Towards the end, he -- he lost Re: [51:11 to 52:09]

51:12 rank at one point. Pltf Obj 402, 403, 602, MIL re

51:13 Q. And do you understand why that bad acts

51:14 occurred?

51:15 A. I don't understand why that

51:16 occurred. I had -- I had an

51:17 understanding that there was discussion

51:18 of paperwork that I needed to bring while

51:19 he was on a training exercise to his

51:20 first sergeant. His first sergeant --

51:21 and this did not come from Lewie. It

51:22 came from his first sergeant. I don't do

51:23 paperwork. I'm not a gopher. I was not

52:01 in the military, so I did not take

52:02 paperwork to the first sergeant that was

52:03 stateside. That -- that was my

52:04 understanding where it stemmed from.

52:05 Beyond that, no idea.

52:06 Q. So your understanding was that

52:07 the -- the demotion stemmed from a

52:08 paperwork problem?

52:09 A. Correct.

52:11 - 52:17 Keefer, Emily 2020-09-23

52:11 A. And probably my response, if you Re: [52:11 to 52:17]

52:12 can tell. Pltf Obj 402, 403, 602, MIL re

52:13 Q. And your -- so -- sorry. I'm bad acts; incomple de

52:14 just -- just to be clear, your

52:15 understanding was that your failure to

52:16 deliver paperwork on behalf of Mr. Keefer

52:17 was related to his demotion?

52:19 - 53:09 Keefer, Emily 2020-09-23

52:19 A. That was my understanding, yes. Re: [52:19 to 53:09]

52:20 Q. And you mentioned a training Pltf Obj 402, 403, 602, MIL re

52:21 exercise in relation to this paperwork. bad acts, cumulative

52:22 What -- what are you referring to?

52:23 A. He was in Thailand. I couldn't

53:01 tell you how long he was there, but they

53:02 went there for a training exercise.

53:03 Q. And do you know -- this

53:04 paperwork, do you know what it was

53:05 supposed to accomplish?

53:06 A. I have no idea.

53:07 Q. But you understood that it was

53:08 something that needed to be delivered for

53:09 Mr. Keefer that the Army required?

53:11 - 54:04 Keefer, Emily 2020-09-23

53:11 A. I don't know that it had Re: [53:11 to 54:04]

53:12 anything to do with him, honestly. I Pltf Obj 402, 403, 602, MIL re

53:13 just knew I didn't know where paperwork bad acts, cumulative

53:14 was, I didn't know what paperwork they

53:15 were talking about, and I wasn't going to

SUSTAINED

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SUSTAINED

SUSTAINED

 

[51:03-51:06], 3/13/2021

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51:09]

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 211 of 305
53:16 deliver something because I wasn't in the

53:17 military. They weren't going to tell me

53:18 what to do.

53:19 Q. So this direction to deliver

53:20 paperwork came from the sergeant?

53:21 A. Correct.

53:22 Q. And your -- sorry. I'm just

53:23 trying to be clear on -- on -- on

54:01 everything. You -- you understood that

54:02 this was something that the military

54:03 needed on Mr. Keefer's behalf in relation

54:04 to this training exercise?

54:06 - 54:11 Keefer, Emily 2020-09-23

54:06 A. I have no idea what it was for. Re: [54:06 to 54:11]

54:07 It was never clarified. Pltf Obj 402, 403, 602, MIL re

54:08 Q. But at the -- at the least, it bad acts, cumulative

54:09 was something that they needed from Mr.

54:10 Keefer, that -- that the Army needed from

54:11 Mr. Keefer?

54:13 - 54:23 Keefer, Emily 2020-09-23

54:13 A. Potentially. Again, I didn't Re: [54:13 to 54:23]

54:14 know a lot about even what the request -- Pltf Obj 402, 403, 602, MIL re

54:15 or why the request was made. bad acts, cumulative, vague

54:16 Q. And I -- you may have -- I think

54:17 you testified to this already. But just

54:18 to be clear on the story, do you

54:19 understand that the -- your -- the fail54:20 -- the Army -- strike that -- that the

54:21 failure to submit this paperwork violated

54:22 some Army rule and led to -- in part at

54:23 least to Mr. Keefer's demotion?

55:02 - 55:14 Keefer, Emily 2020-09-23

55:02 A. That, I couldn't tell you. Re: [55:02 to 55:14]

55:03 Again, I didn't know what the paperwork Pltf Obj 402, 403, 602, MIL re

55:04 was, why it was being requested, or what bad acts, cumulative,

55:05 they needed it for. I -- I wasn't sure misstates

55:06 why he was requested -- or the sergeant,

55:07 rather, requested paperwork while he was

55:08 stateside but Lewie was in Thailand. It

55:09 was pretty apparent that Lewie was not

55:10 going to be able to get the paperwork,

55:11 whatever the paperwork was.

55:12 Q. Right. So, could he -- but you

55:13 believe that this paperwork issue was

55:14 related to the demotion?

55:16 - 56:07 Keefer, Emily 2020-09-23

55:16 A. It wasn't the paperwork issue. Re: [55:16 to 56:07]

55:17 It was my attitude issue. Pltf Obj 402, 403, 602, MIL re

55:18 Q. So your understanding is that bad acts, cumulative,

55:19 your attitude and interactions with the misstates

55:20 sergeant contributed to Mr. Keefer's

55:21 demotion?

55:22 A. That is my understanding.

55:23 Q. And can you describe your

56:01 interactions with the sergeant?

56:02 A. Essentially what I said earlier.

56:03 "I'm not in the Army, and you're not

56:04 going to tell me what to do."

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 212 of 305
56:05 Q. And was this Mr. Keefer's

56:06 understanding of the demotion as well,

56:07 that it was --

56:09 - 56:12 Keefer, Emily 2020-09-23

56:09 A. I have no idea, but that is what Re: [56:09 to 56:12]

56:10 he told me. Pltf Obj 402, 403, MIL re bad

56:11 Q. That his demotion was related to acts, cumulative; 611; leading

56:12 your interactions with the sergeant?

56:14 - 56:14 Keefer, Emily 2020-09-23

56:14 A. Correct. Re: [56:14 to 56:14]

Pltf Obj 402, 403, 602, MIL re

bad acts, cumulative, vague

59:08 - 59:19 Keefer, Emily 2020-09-23

59:08 Q. Did you -- did you speak with

59:09 anyone about the deposition?

59:10 A. Not really.

59:11 Q. Did you speak with anyone at all

59:12 about the deposition?

59:13 A. I was made aware of some

59:14 questions that might be asked or

59:15 direction taken.

59:16 Q. And who did you speak with?

59:17 A. I spoke with Mr. Bouk.

59:18 Q. Is that Mr. Bouk maybe?

59:19 A. Yes. I'm sorry.

60:09 - 60:12 Keefer, Emily 2020-09-23

60:09 Q. And how long did you talk?

60:10 A. Maybe thirty minutes.

60:11 Q. And just a single conversation?

60:12 A. Yes.

64:16 - 65:01 Keefer, Emily 2020-09-23

64:16 Q. So, earlier we talked about Mr. Re: [64:16 to 65:01]

64:17 Keefer's responsibilities in the Pltf Obj 611; leading 

64:18 military. Mr. Keefer didn't tell you

64:19 much about his duties in the military.

64:20 Is that accurate?

64:21 A. Correct.

64:22 Q. So you don't know much -- you

64:23 don't know what noises he was exposed to

65:01 while serving in the United States?

65:03 - 65:03 Keefer, Emily 2020-09-23

65:03 A. Correct.

65:05 - 65:07 Keefer, Emily 2020-09-23

65:05 Q. And you don't know what noises Re: [65:05 to 65:07]

65:06 he -- he was exposed to while serving in Pltf Obj 611; leading

65:07 Iraq?

65:09 - 65:13 Keefer, Emily 2020-09-23

65:09 A. I was not made aware. Re: [65:09 to 65:13]

65:10 Q. And you don't know whether Mr. Pltf Obj 611; leading

65:11 Keefer wore hearing protection in 2008

65:12 when you were living in Georgia. Is that

65:13 correct?

65:15 - 65:20 Keefer, Emily 2020-09-23

SUSTAINED

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OBJECTIONS 

WITHDRAWN, 3/13/2021

OBJECTIONS 

WITHDRAWN, 3/13/2021

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 213 of 305
65:15 A. I don't know. Re: [65:15 to 65:20]

65:16 Q. And you don't know whether he Pltf Obj 611; leading

65:17 wore hearing protection in 2009, whether

65:18 in Georgia or in Iraq; correct?

65:19 A. I have no idea. I'm not a

65:20 babysitter.

65:21 - 66:22 Keefer, Emily 2020-09-23

65:21 Q. And you don't know whether he Re: [65:21 to 66:22]

65:22 wore hearing protection in Iraq or in Pltf Obj 611; leading

65:23 Georgia in 2010?

66:01 A. Again, I -- I'm not a

66:02 babysitter. I have no idea.

66:03 Q. And you don't know whether he

66:04 wore hearing protection in -- in 2011 in

66:05 Georgia or Hawaii?

66:06 A. Do we have to do this for every

66:07 year?

66:08 Q. There's a --

66:09 A. Because I have no idea. I'm not

66:10 a babysitter.

66:11 Q. And you don't know whether he

66:12 wore hearing protection in 2012 in

66:13 Hawaii?

66:14 A. I have no idea.

66:15 Q. And you don't know whether he

66:16 wore hearing protection in 2013 in

66:17 Hawaii?

66:18 A. I have no idea.

66:19 Q. Or in 2014 in Hawaii?

66:20 A. I have no idea.

66:21 Q. Or in 2015 in Hawaii?

66:22 A. No idea.

66:23 - 67:06 Keefer, Emily 2020-09-23

66:23 Q. You mentioned earlier that you

67:01 -- that Mr. Keefer kept his earplugs in a

67:02 case on his uniform.

67:03 A. Correct.

67:04 Q. Can you describe the case?

67:05 A. It was like an olive-green

67:06 plastic maybe oblong case.

68:10 - 68:14 Keefer, Emily 2020-09-23

68:10 Keefer -- oh, sorry, Ms. Keefer, before

68:11 the break we were discussing the case

68:12 that Mr. Keefer kept his earplugs in. Do

68:13 you remember that?

68:14 A. Sure.

68:15 - 69:02 Keefer, Emily 2020-09-23

68:15 Q. I'm going to show you a picture

68:16 now. Do you see that?

68:17 (Exhibit 2 was marked for identification

68:18 and is attached.)

68:19 A. Yes.

68:20 Q. You can ignore those earplugs

68:21 for now. Is this the case that you

68:22 remember seeing?

68:23 A. That is the case.

69:01 Q. That is the case that you

69:02 remember?

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OBJECTIONS 

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Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 214 of 305
69:04 - 69:04 Keefer, Emily 2020-09-23

69:04 A. Yes.

69:05 - 69:06 Keefer, Emily 2020-09-23

69:05 Q. And do you recall these earplugs

69:06 that are depicted next to the case?

69:09 - 69:10 Keefer, Emily 2020-09-23

69:09 A. I never saw what was in the

69:10 case.

70:01 - 70:08 Keefer, Emily 2020-09-23

70:01 Q. Earlier we were talking about a Re: [70:01 to 70:08]

70:02 disciplinary proceeding involving Mr. Pltf Obj 402, 403, 602,

70:03 Keefer. Do you remember that? cumulative, MIL re bad acts

70:04 A. Yes.

70:05 Q. And Mr. Keefer told you that the

70:06 reason for these disciplinary proceedings

70:07 was your attitude and interactions with

70:08 his sergeant. Is that right?

70:11 - 70:22 Keefer, Emily 2020-09-23

70:11 A. Correct. Re: [70:11 to 70:22]

70:12 Q. Was there any other reason that Pltf Obj 402, 403, 602,

70:13 you were aware of for Mr. -- the cumulative, MIL re bad acts

70:14 disciplinary proceedings brought against

70:15 Mr. Keefer?

70:16 A. No. Not that I was aware.

70:17 Q. He never mentioned any

70:18 allegations of misconduct that were

70:19 brought against him?

70:20 A. No.

70:21 Q. And he never mentioned sexual

70:22 harassment?

71:10 - 71:19 Keefer, Emily 2020-09-23

71:10 Q. Were you aware that Mr. Keefer Re: [71:10 to 71:19]

71:11 had been charged with sexual harassment Pltf Obj 402, 403, 602,

71:12 at any point during his military service? cumulative, MIL re bad acts

71:13 A. I was not.

71:14 Q. And did -- after your marriage,

71:15 did Mr. Keefer ever discuss with you

71:16 charges of any misconduct, including

71:17 sexual harassment, that had been brought

71:18 against him during the military, his

71:19 military service?

71:21 - 72:15 Keefer, Emily 2020-09-23

71:21 A. He did not. Re: [71:21 to 72:15]

71:22 Q. So after -- Mr. Keefer left the Pltf Obj 402, 403, 602,

71:23 military, and you relocated to Oklahoma cumulative, 

72:01 in early 2015. Is that correct?

72:02 A. Correct.

72:03 Q. And when did your marriage end?

72:04 A. We were divorced -- it was

72:05 finalized in March of 2017.

72:06 Q. And did you live together from

72:07 Oklahoma -- or your move to Oklahoma

72:08 until you were divorced?

72:09 A. Until October of 2016. I moved

72:10 out of the home for approximately two

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72:11 months, two and a half months, moved back

72:12 in in December. I believe it was the

72:13 following May in 2017 is when he moved

72:14 out of the home. And then the divorce in

72:15 2018.

73:10 - 73:12 Keefer, Emily 2020-09-23

73:10 Q. Did you notice Mr. Keefer having

73:11 more difficulty socializing with others

73:12 after he left the military?

73:14 - 73:16 Keefer, Emily 2020-09-23

73:14 A. I was seeing the same sort of

73:15 characteristics I guess maybe on a

73:16 greater scale.

73:17 - 74:03 Keefer, Emily 2020-09-23

73:17 Q. So, earlier you mentioned that

73:18 there was a steady decline in Mr.

73:19 Keefer's hearing for -- for several

73:20 years. Is that correct?

73:21 A. You said a steady decline for

73:22 several years?

73:23 Q. Yes.

74:01 A. Correct.

74:02 Q. Was there a point at which that

74:03 decline ended and it stabilized?

74:05 - 74:09 Keefer, Emily 2020-09-23

74:05 A. I guess I'm -- I don't recall if

74:06 there was -- if it stabilized or if it

74:07 got worse. After the military, it was

74:08 day to day. I mean, that's just what we

74:09 did.

75:20 - 76:01 Keefer, Emily 2020-09-23

75:20 Q. When you were living with Mr. Re: [75:20 to 76:01]

75:21 Keefer when he was in the military and Pltf Obj 402, vague, compound,

75:22 after his military service, you said you MIL C4 - non-military noise

75:23 had a lawn (inaudible). Is that right? exposure

76:01 A. Uh-huh.

76:11 - 78:02 Keefer, Emily 2020-09-23

76:11 Q. So I'll just restate the Re: [76:11 to 78:02]

76:12 question. I think my last question may Pltf Obj 402, 403, 602, vague,

76:13 have been, did Mr. Keefer mow the lawn at MIL C4 - non-military noise

76:14 those residences? exposure

76:15 A. I did a majority of the lawn

76:16 work.

76:17 Q. So you -- you usually mowed the

76:18 lawn?

76:19 A. Yes, I usually mowed the lawn.

76:20 Q. And that was true in Georgia?

76:21 A. In Georgia, in Hawaii, when we

76:22 moved to Hobart, yes.

76:23 Q. Did Mr. Keefer ever mow the

77:01 lawn?

77:02 A. He did mow the lawn on occasion.

77:03 Q. How often, would you say?

77:04 A. That, I'm not sure of.

77:05 Q. Once a week?

77:06 A. You said once a week? No.

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77:07 Q. Once a month?

77:08 A. That was very -- it was -- it

77:09 was a rare occasion. Like I said, I took

77:10 care of the lawn work.

77:11 Q. And when Mr. Keefer mowed the

77:12 lawn, did he wear hearing protection?

77:13 A. I have no idea.

77:14 Q. Did you ever watch Mr. Keefer --

77:15 see Mr. Keefer while he was mowing the

77:16 lawn?

77:17 A. I don't babysit.

77:18 Q. Did you ever -- when you mowed

77:19 the lawn, did you wear hearing

77:20 protection?

77:21 A. I did not.

77:22 Q. And what kind of mower did you

77:23 have?

78:01 A. I used a push mower. Very small

78:02 lawns at every location.

78:03 - 78:04 Keefer, Emily 2020-09-23

78:03 Q. Did you own any hearing

78:04 protection when you lived together with

78:05 - 78:16 Keefer, Emily 2020-09-23

78:05 Mr. Keefer?

78:06 A. Yes.

78:07 Q. What models of or what types of

78:08 hearing protection did you have?

78:09 A. Like muffs. Well, the muffs

78:10 were more for the kids and I. I don't

78:11 know about -- I know my mom had given

78:12 us -- given me, rather, some Styrofoam

78:13 little pluggers that I never used.

78:14 Q. And you said -- you said the

78:15 muffs were more for the kids and you?

78:16 A. Yes.

79:09 - 79:18 Keefer, Emily 2020-09-23

79:09 Q. Did Mr. Keefer ever wear the ear Re: [79:09 to 79:18]

79:10 muffs? Pltf Obj misstates

79:11 A. I don't recall.

79:12 Q. You don't have any recollection

79:13 of him ever wearing the ear muffs?

79:14 A. I don't recall.

79:15 Q. So no, you have no recollection

79:16 of him ever wearing the ear muffs?

79:17 A. That's what I just said. I

79:18 don't recall.

79:19 - 80:01 Keefer, Emily 2020-09-23

79:19 Q. You also mentioned you had foam Re: [79:19 to 80:01]

79:20 earplugs that you could roll up? Is that Pltf Obj 611; leading

79:21 right?

79:22 A. Correct.

79:23 Q. And you didn't use those very

80:01 often?

80:03 - 80:09 Keefer, Emily 2020-09-23

80:03 A. I didn't use them at all.

80:04 Q. Did the children ever use them?

80:05 A. No.

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80:06 Q. Did Mr. Keefer ever use them, to

80:07 your knowledge?

80:08 A. Not that I'm aware. I have no

80:09 idea whether he did or did not.

80:10 - 80:11 Keefer, Emily 2020-09-23

80:10 Q. Did you and Mr. Keefer ever Re: [80:10 to 80:11]

80:11 attend any loud events together? Pltf Obj Vague; MIL C4 -

non-military noise exposure

80:13 - 80:15 Keefer, Emily 2020-09-23

80:13 A. I wouldn't say anything Re: [80:13 to 80:15]

80:14 particularly loud. Pltf Obj Vague; MIL C4 -

80:15 Q. Did you ever attend concerts? non-military noise exposure

80:17 - 80:18 Keefer, Emily 2020-09-23

80:17 A. We went to one concert. Re: [80:17 to 80:18]

80:18 Q. Did Mr. Keefer wear hearing Pltf Obj 602, MIL C4 -

non-military noise exposure,

OBJ beginning at 80:18

incomplete designation (add:

80:19-81:03)

80:19 - 81:03 Keefer, Emily 2020-09-23

80:19 protection at the concert?

80:20 A. It was a Jack Johnson concert,

80:21 pretty mellow. We did not have the

80:22 greatest seats.

80:23 Q. So he did not wear --

81:01 A. It wasn't a loud concert.

81:02 Q. He did not wear hearing

81:03 protection at the Jack Johnson concert?

80:19 - 81:03 Keefer, Emily 2020-09-23

80:19 protection at the concert?

80:20 A. It was a Jack Johnson concert,

80:21 pretty mellow. We did not have the

80:22 greatest seats.

80:23 Q. So he did not wear --

81:01 A. It wasn't a loud concert.

81:02 Q. He did not wear hearing

81:03 protection at the Jack Johnson concert?

81:05 - 81:06 Keefer, Emily 2020-09-23

81:05 Q. Did Mr. Keefer wear hearing Re: [81:05 to 81:06]

81:06 protection at the concert? Pltf Obj 602, MIL C4 -

non-military noise exposure;

incomplete designation (add:

80:19:81:03)

81:08 - 81:08 Keefer, Emily 2020-09-23

81:08 A. I don't believe he did. Re: [81:08 to 81:08]

Pltf Obj 602, MIL C4 -

non-military noise exposure

81:09 - 81:23 Keefer, Emily 2020-09-23

81:09 Q. Did you ever attend football Re: [81:09 to 81:23]

81:10 games or other sporting events together? Pltf Obj MIL C4 - non-military

81:11 A. High school football games. We noise exposure, OBJ beginning

81:12 lived right next to the stadium. at 81:9, 602

81:13 Q. About how -- how often -- how

81:14 many times did you attend a high school

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81:15 football game?

81:16 A. Actually attending the game? I

81:17 mean, I might recall two or three. Like

81:18 I said, we -- we lived right next-door.

81:19 We could look out the kitchen window and

81:20 watch the game. It wasn't -- we didn't

81:21 need to go sit in the stands.

81:22 Q. When you sat in the stands, did

81:23 Mr. Keefer ever wear hearing protection?

82:02 - 82:02 Keefer, Emily 2020-09-23

82:02 A. I don't recall. Re: [82:02 to 82:02]

Pltf Obj 602, MIL C4 -

non-military noise exposure

82:13 - 82:18 Keefer, Emily 2020-09-23

82:13 Q. Did you ever go fishing with Mr. Re: [82:13 to 82:18]

82:14 Keefer? Pltf Obj 602, MIL C4 -

82:15 A. I don't think so. That, I'm not non-military noise exposure

82:16 sure. If I did, it might have been once.

82:17 Q. Did Mr. Keefer ever go fishing

82:18 without you?

82:20 - 83:06 Keefer, Emily 2020-09-23

82:20 A. Yes. On occasion. Re: [82:20 to 83:06]

82:21 Q. And do you remember the type of Pltf Obj 602, MIL C4 -

82:22 boat he used when he went fishing? non-military noise exposure

82:23 A. I have no idea.

83:01 Q. You never saw the boat?

83:02 A. I never saw a boat.

83:03 Q. And you don't know whether Mr.

83:04 Keefer wore hearing protection when he

83:05 went on a boat?

83:06 A. I have no idea.

85:21 - 86:06 Keefer, Emily 2020-09-23

85:21 Q. Did -- after being in the

85:22 military, did you notice Mr. Keefer

85:23 having trouble hearing people or having

86:01 trouble with ringing in his ears at

86:02 restaurants or other social gatherings?

86:03 A. Trouble hearing people, yes. As

86:04 far as -- he never complained in a social

86:05 setting. I guess possibly after, but not

86:06 during.

86:18 - 86:21 Keefer, Emily 2020-09-23

86:18 Q. Did the -- the ringing in his Re: [86:18 to 86:21]

86:19 ears ever cause him to have to absent Pltf Obj Vague, 602, 

86:20 himself from a conversation or a social

86:21 gathering?

86:23 - 87:05 Keefer, Emily 2020-09-23

86:23 A. He never -- during the Re: [86:23 to 87:05]

87:01 interactions, he never mentioned it. If Pltf Obj vague, 602

87:02 -- if that happened, I wouldn't have

87:03 known because he didn't tell me.

87:04 Q. Do -- when the ringing occurred,

87:05 do you know how long it lasted?

87:07 - 87:09 Keefer, Emily 2020-09-23

87:07 A. I do not know. Re: [87:07 to 87:09] OBJECTIONS 

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87:08 Q. Do you know if it was more than Pltf Obj 602, cumulative,

87:09 a minute? vague

87:11 - 87:12 Keefer, Emily 2020-09-23

87:11 A. I have no idea. He never said

87:12 how long.

87:13 - 87:21 Keefer, Emily 2020-09-23

87:13 Q. So, how often did you go, when Re: [87:13 to 87:21]

87:14 you were married to Mr. Keefer, out to Pltf Obj 602, vague

87:15 restaurants together?

87:16 A. Not very often. Never made a

87:17 lot of money, so we didn't get to enjoy

87:18 those types of things very often.

87:19 Q. Did Mr. Keefer have any

87:20 objection to going to restaurants, or

87:21 it's just a budgeting issue?

87:23 - 88:09 Keefer, Emily 2020-09-23

87:23 A. I wouldn't say that he objected Re: [87:23 to 88:09]

88:01 to going to a restaurant. Again, we Pltf Obj 602, vague

88:02 didn't do it very often, so.

88:03 Q. Did Mr. Keefer try to avoid any

88:04 other social gatherings in the years

88:05 after he left the military?

88:06 A. There was not very many social

88:07 gatherings.

88:08 Q. Did he express any reluctance to

88:09 attend whatever gatherings there were?

88:11 - 88:11 Keefer, Emily 2020-09-23

88:11 A. Never to me. Re: [88:11 to 88:11]

Pltf Obj 602, vague

88:14 - 88:16 Keefer, Emily 2020-09-23

88:14 So, you have children with Mr.

88:15 Keefer. Is that correct?

88:16 A. Correct.

89:02 - 89:21 Keefer, Emily 2020-09-23

89:02 Q. And is -- is Keefer -- does Re: [89:02 to 89:21]

89:03 Keefer still see the children regularly? Pltf Obj 402

89:04 A. Yes.

89:05 Q. How often would you say?

89:06 A. It's every other weekend.

89:07 Working on two and a half years ago, I

89:08 moved to Tulsa, which is three hours and

89:09 twenty minutes from where he's at now.

89:10 Q. And what sort of things do

89:11 Keefer and the children do when they see

89:12 each other?

89:13 A. They go out fishing. Other than

89:14 that, I -- I couldn't tell you. That's

89:15 his time, not mine.

89:16 Q. Do you take them down to Hobart,

89:17 or does he come up to Tulsa?

89:18 A. He has come to Tulsa. And we

89:19 have arrangements to meet in Oklahoma

89:20 City, which is approximately halfway

89:21 between the two of us.

92:05 - 92:15 Keefer, Emily 2020-09-23

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92:05 Q. Does Mr. Keefer talk to the Re: [92:05 to 92:15]

92:06 children on the phone regularly? Pltf Obj 602

92:07 A. Yes. FaceTime.

92:08 Q. FaceTime? And do you ever

92:09 participate in those conversations?

92:10 A. Not really.

92:11 Q. Do you -- are you aware of any

92:12 difficulty communicating in those

92:13 conversations between Mr. Keefer and the

92:14 children?

92:15 A. I'm not aware.

92:16 - 92:18 Keefer, Emily 2020-09-23

92:16 Q. So to your knowledge, there -- Re: [92:16 to 92:18]

92:17 there's no -- he has no problems talking Pltf Obj 602, Cumulative,

92:18 to his children on FaceTime? misstates

92:21 - 92:22 Keefer, Emily 2020-09-23

92:21 A. I'm not aware if there are any Re: [92:21 to 92:22]

92:22 issues. Pltf Obj 602, 

92:23 - 93:17 Keefer, Emily 2020-09-23

92:23 Q. So, you testified that -- I -- I Re: [92:23 to 93:17]

93:01 believe, that your marriage to Mr. Keefer Pltf Obj OBJ beginning at

93:02 ended in 2017? Is that right? 92:23, 402, 403, cumulative

93:03 A. Yes. Then the divorce was

93:04 finalized in 2018.

93:05 Q. In 2018? All right. So, when

93:06 did you -- and there was a separation

93:07 before the divorce?

93:08 A. There were two.

93:09 Q. There were two separations.

93:10 Okay. When was the first separation?

93:11 A. October of 2016 until December

93:12 of 2016.

93:13 Q. All right. And when was the

93:14 second separation?

93:15 A. I believe in May of 2017. And

93:16 then that was all the way through the

93:17 divorce.

93:19 - 93:21 Keefer, Emily 2020-09-23

93:19 Q. And what were the causes of your Re: [93:19 to 93:21]

93:20 separation, your first separation in Pltf Obj 402, 403

93:21 October of 2016?

93:23 - 94:05 Keefer, Emily 2020-09-23

93:23 A. We grew apart, I mean. Sorry. Re: [93:23 to 94:05]

94:01 You may not have picked that up. We grew Pltf Obj 402, 403

94:02 apart. Things just weren't the same.

94:03 Q. What -- like, is there anything

94:04 you can point to that caused you to grow

94:05 apart?

94:08 - 94:09 Keefer, Emily 2020-09-23

94:08 Q. Can you point to anything that Re: [94:08 to 94:09]

94:09 caused you to grow apart? Pltf Obj 402, 403, cumulative

94:11 - 95:13 Keefer, Emily 2020-09-23

94:11 A. It got to a point that I didn't Re: [94:11 to 95:13]

94:12 want a fourth child. Pltf Obj 402, 403, misstates, 

94:13 Q. And did Mr. Keefer want a fourth

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94:14 child?

94:15 A. I'm talking about him.

94:16 Q. So Mr. Keefer --

94:17 A. I don't -- he was just very

94:18 irresponsible. I was not going to take

94:19 care of him along with three other

94:20 children.

94:21 Q. Oh, I understand. Sorry. So,

94:22 in -- in what ways did you have to take

94:23 care of Mr. Keefer?

95:01 A. He -- he was just irresponsible.

95:02 I took care of the house. I took care of

95:03 the kids. I took care of the bills.

95:04 It's great to play daddy when mom's the

95:05 disciplinarian and takes care of

95:06 everything else. And working full-time,

95:07 when you express that some things need to

95:08 change and they don't -- it was kind of a

95:09 repeat cycle, and I was finally done.

95:10 Q. And did that -- did Mr. Keefer

95:11 grow more irresponsible over time, or was

95:12 it a trait of his throughout your

95:13 relationship?

95:15 - 95:18 Keefer, Emily 2020-09-23

95:15 A. That -- I guess there -- there Re: [95:15 to 95:18]

95:16 was just more -- it was more once he got Pltf Obj 402, 403, misstates

95:17 out of the military. It was just -- it

95:18 was different.

95:23 - 97:10 Keefer, Emily 2020-09-23

95:23 Q. Did Mr. Keefer do -- you Re: [95:23 to 97:10]

96:01 mentioned earlier that you took care of Pltf Obj 402, 403, OBJ ending

96:02 the lawn throughout the time you lived at 97:10 MIL C4 - non-military

96:03 together. Did Mr. Keefer do any other noise exposure

96:04 household chores early on in your

96:05 relationship in 2008, say?

96:06 A. What types of household chores?

96:07 If I asked -- if I asked, most of the

96:08 time he would do things, yes.

96:09 Q. But there weren't -- were there

96:10 things that he had responsibility for and

96:11 did without being given a task to be

96:12 completed?

96:13 A. I don't babysit, and I don't

96:14 give chores to a grown man.

96:15 Q. Well, that -- that's sort of my

96:16 question. Were there things that you

96:17 didn't have to babysit him about, that he

96:18 just knew were the things that he had to

96:19 do and he took care of around the house

96:20 without you having to tell him?

96:21 A. As far as initiatives, he -- he

96:22 did do some things. He did. He did some

96:23 things.

97:01 Q. And what are some examples of

97:02 those things?

97:03 A. He was very good with the kids.

97:04 If I needed extra time, he took care of

97:05 the kids. It wasn't walking through the

97:06 door like some working parents do and

97:07 they kind of shun their kids. He

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97:08 definitely was not absent. You know, he

97:09 was good about cleaning up after dinner,

97:10 those types of things.

97:11 - 97:21 Keefer, Emily 2020-09-23

97:11 Q. So he had a good relationship

97:12 with his children while he was in the

97:13 military?

97:14 A. Yeah.

97:15 Q. And does he have a good

97:16 relationship with the children today?

97:17 A. Yes.

97:18 Q. You haven't noticed -- have you

97:19 noticed any worsening in their

97:20 relationship over the years, or has it

97:21 stayed sort of stable and positive?

97:23 - 98:05 Keefer, Emily 2020-09-23

97:23 A. For the most part, it's been

98:01 stable and positive. Obviously, we went

98:02 through some changes with the oldest

98:03 graduating high school and getting a job.

98:04 So there's a little bit less time there,

98:05 but it's no fault of his.

98:06 - 98:23 Keefer, Emily 2020-09-23

98:06 Q. And did the -- did Mr. Keefer's Re: [98:06 to 98:23]

98:07 willingness to do, you know, the dishes Pltf Obj OBJ beginning at 98:6

98:08 and chores like that, did that change 402, 403, vague

98:09 over time, or was he consistent in

98:10 handling a few things like that?

98:11 A. Give me a time period.

98:12 Q. Well, just comparing early on in

98:13 your marriage when you were in the --

98:14 when he was in the military versus the

98:15 years leading up to your divorce in

98:16 Oklahoma.

98:17 A. It -- I would say that there was

98:18 probably less that he did leading to the

98:19 end.

98:20 Q. So he -- he was doing fewer

98:21 chores around the house in the last years

98:22 of your marriage than he had been doing

98:23 in the beginning?

99:02 - 99:02 Keefer, Emily 2020-09-23

99:02 A. As I recall, yes. Re: [99:02 to 99:02]

Pltf Obj 402, 403

99:03 - 100:03 Keefer, Emily 2020-09-23

99:03 Q. Can -- can you think of any Re: [99:03 to 100:03]

99:04 particular things that he stopped doing Pltf Obj 402, 403

99:05 that he had done before?

99:06 A. Any particular? Not

99:07 necessarily. There was no one particular

99:08 thing that he stopped doing.

99:09 Q. He just became less inclined to

99:10 take care of things without you having to

99:11 tell him to do so?

99:12 A. I guess you could say that.

99:13 Q. And so you separated temporarily

99:14 in late 2016 and then again in May 2017.

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SUSTAINED as to [99:13-

100:03]

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 223 of 305
99:15 Were there any other reasons for the

99:16 second separation, or was it kind of the

99:17 same issue?

99:18 A. It was the same. You know, I

99:19 moved back into the home because the

99:20 middle one had a very hard time. She

99:21 missed her dad, and it was very abrupt

99:22 when we left. And I thought I owed it to

99:23 my children to try again. It didn't

100:01 work. So that -- I mean, that -- there

100:02 was no in addition to and then it was

100:03 finally done. It -- it just didn't work.

100:23 - 101:03 Keefer, Emily 2020-09-23

100:23 Q. So, were there -- were there any Re: [100:23 to 101:03]

101:01 other causes of the end of your Pltf Obj 402, 403, misstates

101:02 relationship other than Mr. Keefer's

101:03 irresponsibility?

101:05 - 101:06 Keefer, Emily 2020-09-23

101:05 A. Any other causes? I wouldn't Re: [101:05 to 101:06]

101:06 say there was any other causes. Pltf Obj 402, 403, misstates

101:07 - 101:10 Keefer, Emily 2020-09-23

101:07 Q. So from your perspective, the Re: [101:07 to 101:10]

101:08 sole cause of your growing apart and Pltf Obj 402, 403, misstates

101:09 divorce was Mr. Keefer's

101:10 irresponsibility?

101:12 - 102:08 Keefer, Emily 2020-09-23

101:12 A. We both changed. It wasn't just Re: [101:12 to 102:08]

101:13 -- a divorce happens for more than one Pltf Obj 402, 403, misstates

101:14 reason. It's not one person in

101:15 particular. There's definitely two

101:16 parties when it comes to marriage. And

101:17 it -- it wasn't just because of his

101:18 actions. We were two different people.

101:19 We were two different people than when we

101:20 got married.

101:21 Q. Was there any infidelity in the

101:22 marriage?

101:23 A. Not that I'm aware.

102:01 Q. And who filed for divorce?

102:02 A. I did.

102:03 Q. Did Mr. Keefer agree to the

102:04 divorce?

102:05 A. It took him -- excuse me. Took

102:06 him some time to sign the paperwork.

102:07 There was no -- no dispute to what was

102:08 written up.

103:05 - 103:22 Keefer, Emily 2020-09-23

103:05 Q. (By Mr. Carter) Ms. Keefer, Re: [103:05 to 103:22]

103:06 earlier we were talking about the causes Pltf Obj 402, 403, MIL re

103:07 of your divorce from Mr. Keefer. Do you alleged infidelity

103:08 remember that?

103:09 A. Yes.

103:10 Q. And I asked whether there was

103:11 any infidelity in the marriage. And what

103:12 was your answer?

103:13 A. I said, not that I'm aware.

103:14 Q. All right. So, I'm just going

SUSTAINED

SUSTAINED

SUSTAINED

OVERRULED

OVERRULED as to [101:12-

101:20]

SUSTAINED as to [101:21-

102:08]

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 224 of 305
103:15 to share a document. I'll go to the top

103:16 here. This is from the deposition that

103:17 Lewis Keefer gave in this case. I'll

103:18 scroll down to the bottom here. And it's

103:19 a little small. Can you read this page

103:20 328 here? Can you read that text? You

103:21 don't have to read it out loud. I'm just

103:22 asking if you can see it.

104:07 - 104:13 Keefer, Emily 2020-09-23

104:07 Q. Okay. So this is a transcript Re: [104:07 to 104:13]

104:08 of the deposition that Lewis Keefer gave Pltf Obj 402, 403, MIL re

104:09 a couple of months ago in this case. And alleged infidelity

104:10 as you'll see, at line 7 here, the

104:11 question is, "What is the date you were

104:12 divorced from your second wife?"

104:13 Did I read that correctly?

104:16 - 104:20 Keefer, Emily 2020-09-23

104:16 A. Uh-huh. Yes. Re: [104:16 to 104:20]

104:17 Q. And Mr. Keefer answered, "I Pltf Obj 402, 403, MIL re

104:18 believe it was 2017." alleged infidelity

104:19 So -- and here he's referring to

104:20 his divorce from you. Is that correct?

104:23 - 105:03 Keefer, Emily 2020-09-23

104:23 Q. It appears that in this Re: [104:23 to 105:03]

105:01 testimony, Mr. Keefer is referring to his Pltf Obj 402, 403, MIL re

105:02 divorce from you in 2017. Is that alleged infidelity

105:03 correct?

105:05 - 105:20 Keefer, Emily 2020-09-23

105:05 A. It appears that way. Re: [105:05 to 105:20]

105:06 Q. And the question that starts on Pltf Obj 402, 403, MIL re

105:07 line 12 is, "And is it your position that alleged infidelity

105:08 that divorce resulted exclusively from

105:09 your inability to communicate because of

105:10 hearing loss?"

105:11 And the answer is, "Exclusively,

105:12 no."

105:13 Did I read that correctly?

105:14 A. You did.

105:15 Q. The next question is, "What

105:16 other problems were you having that led

105:17 to the divorce?"

105:18 The answer is, "Towards the end

105:19 she preferred the company of other men."

105:20 Did I read that correctly?

105:22 - 106:05 Keefer, Emily 2020-09-23

105:22 A. You did read it correctly. Re: [105:22 to 106:05]

105:23 Q. Is that an accurate statement by Pltf Obj 402, 403, MIL re

106:01 Mr. Keefer, "Towards the end she alleged infidelity

106:02 preferred the company of other men"?

106:03 A. It is not.

106:04 Q. So this statement by Mr. Keefer

106:05 was false?

106:07 - 106:07 Keefer, Emily 2020-09-23

106:07 A. Correct. Re: [106:07 to 106:07]

Pltf Obj 402, 403, 602, MIL re

bad acts

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 225 of 305
106:08 - 106:15 Keefer, Emily 2020-09-23

106:08 Q. One moment while I bring up Re: [106:08 to 106:15]

106:09 another document. Pltf Obj 402, 403, 602, MIL re

106:10 Can you see this document, Ms. bad acts, foundation, 

106:11 Keefer?

106:12 A. I do.

106:13 Q. As you'll see at the top, it

106:14 reads "NCO Evaluation Report." Do you

106:15 see that?

106:16 - 106:16 Keefer, Emily 2020-09-23

106:16 (Exhibit 4 was marked for identification Re: [106:16 to 106:16]

Pltf Obj 402, 403, 602, MIL re

bad acts, foundation

106:18 - 107:07 Keefer, Emily 2020-09-23

106:18 A. I do. Re: [106:18 to 107:07]

106:19 Q. And do you know what an NCO is? Pltf Obj 402, 403, MIL re bad

106:20 A. Repeat that again, please? acts

106:21 Q. Do you know what an NCO is?

106:22 A. I don't remember what the

106:23 acronym stands for, but I -- yes, I know

107:01 what an NCO is.

107:02 Q. It's a position in the military.

107:03 Is that right?

107:04 A. Correct.

107:05 Q. And you see the name listed here

107:06 is Lewis Keefer?

107:07 A. Correct.

107:10 - 107:20 Keefer, Emily 2020-09-23

107:10 Q. And -- sorry. Just let me -- if Re: [107:10 to 107:20]

107:11 you'll see in this box here in the corner Pltf Obj 402, 403, 602, MIL re

107:12 that I'm (inaudible) rater. You see bad acts, foundation

107:13 that?

107:14 A. I see that.

107:15 Q. And it says on the last line

107:16 here, "Section Sergeant"?

107:17 A. Okay.

107:18 Q. So, here on these fields in Part

107:19 IV, it states, "Army

107:20 values/attributes/skills/actions."

108:19 - 109:02 Keefer, Emily 2020-09-23

108:19 Q. (By Mr. Carter) So you can see Re: [108:19 to 109:02]

108:20 here in Part IV, there are bullet -- Pltf Obj 402, 403, 602, MIL re

108:21 bullet comments. And the first one bad acts, foundation

108:22 reads, "Professional behavior does not

108:23 attribute to general good order and

109:01 discipline."

109:02 Did I read that correctly?

109:04 - 109:08 Keefer, Emily 2020-09-23

109:04 A. You did. Re: [109:04 to 109:08]

109:05 Q. And the second says, "Does not Pltf Obj 402, 403, 602, MIL re

109:06 always present the personal courage to do bad acts, foundation

109:07 or say what is morally right."

109:08 Did I read that correctly?

109:10 - 109:13 Keefer, Emily 2020-09-23

109:10 A. That's what it says. Re: [109:10 to 109:13]

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 226 of 305
109:11 Q. Did Mr. Keefer ever mention to Pltf Obj 402, 403, 602, MIL re

109:12 you that his superiors had made this bad acts, foundation

109:13 evaluation of his performance?

109:15 - 109:15 Keefer, Emily 2020-09-23

109:15 A. No. Re: [109:15 to 109:15]

Pltf Obj 402, 403, 602, MIL re

bad acts, foundation

111:01 - 111:13 Keefer, Emily 2020-09-23

111:01 Q. As you can see here in box (d), Re: [111:01 to 111:13]

111:02 there's another bullet that reads, Pltf Obj 402, 403, 602, MIL re

111:03 "Failed to exhibit behavior that supports bad acts, foundation

111:04 the Army SHARP and EO programs;

111:05 contributed to hostile environment for

111:06 the females within the platoon."

111:07 Did I read that correctly?

111:08 A. That's what the document states.

111:09 Q. Did Mr. Keefer ever mention to

111:10 you that he had been accused of

111:11 contributing to a hostile environment for

111:12 females within the platoon?

111:13 A. Never mentioned it to me.

112:05 - 112:07 Keefer, Emily 2020-09-23

112:05 Do you think it was morally Re: [112:05 to 112:07]

112:06 right of Mr. Keefer to accuse you of Pltf Obj 402, 403, misstates

112:07 infidelity in his deposition?

112:10 - 112:17 Keefer, Emily 2020-09-23

112:10 A. If that was his opinion or his Re: [112:10 to 112:17]

112:11 assumption of the situation, I can't Pltf Obj 402, 403, misstates

112:12 change that. So morally right or wrong,

112:13 I don't know if you can even say that an

112:14 assumption is morally right or wrong.

112:15 Q. You testified that that

112:16 statement was false; correct?

112:17 A. I did.

114:21 - 115:10 Keefer, Emily 2020-09-23

114:21 Q. All right. Were you aware of Re: [114:21 to 115:10]

114:22 any other injuries other than those Pltf Obj 402, 602, 702, MIL C2

114:23 related to hearing -- related to hearing - unrealted disability claims

115:01 and ringing of the ears that Mr. Keefer

115:02 sustained during his military service?

115:03 A. Give me the definition of

115:04 "injuries."

115:05 Q. Any physical conditions, any

115:06 pain, any, you know, discomfort, anything

115:07 that was -- that he developed during his

115:08 military service.

115:09 A. I -- he mentioned back pain,

115:10 shoulder pain.

116:03 - 116:08 Keefer, Emily 2020-09-23

116:03 Q. So shoulder pain, back pain. Re: [116:03 to 116:08]

116:04 A. That was -- that was after his Pltf Obj 402, 602, 702, MIL C2

116:05 military service. That -- that was not - unrealted disability claims

116:06 during his military service. If he

116:07 sustained injuries, it wasn't brought

116:08 forward until after his service.

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

OBJECTIONS 

WITHDRAWN, 3/13/2021

OBJECTIONS 

WITHDRAWN, 3/13/2021

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 227 of 305
121:21 - 122:12 Keefer, Emily 2020-09-23

121:21 Q. Did Mr. Keefer ever experience

121:22 -- after his military service, did Mr.

121:23 Keefer ever experience anxiety?

122:01 A. Yes.

122:02 Q. And how did you observe that

122:03 anxiety?

122:04 A. I mean, he was always on edge,

122:05 just a nervous state most of the time,

122:06 was very cautious about things, just.

122:07 Q. Did that start following his

122:08 deployment to Iraq?

122:09 A. I would say it got worse after

122:10 that, yeah.

122:11 Q. Was it -- was it present before

122:12 the deployment as well?

122:14 - 122:21 Keefer, Emily 2020-09-23

122:14 A. I mean, there were some things,

122:15 not -- not anything that I would pinpoint

122:16 and say, oh, he's, you know -- this is

122:17 anxiety or whatnot. It -- it kind of

122:18 fell in line, you know, once I started

122:19 seeing it more often.

122:20 Q. And did it get worse over time

122:21 after the deployment to Iraq?

122:23 - 123:12 Keefer, Emily 2020-09-23

122:23 A. I mean, after the deployment, it Re: [122:23 to 123:12]

123:01 -- it was there. It -- I don't know that Pltf Obj 602, 702

123:02 I would say that it got worse. There was

123:03 a point that I had to ask, or did ask if

123:04 he had set up an appointment to talk to

123:05 someone to at least address it.

123:06 Q. Do you recall when that was that

123:07 you asked him to seek treatment for

123:08 anxiety?

123:09 A. Probably shortly after he got to

123:10 -- well, it was probably second or third

123:11 year maybe into Hawaii, approximately

123:12 '16, '17.

123:15 - 123:16 Keefer, Emily 2020-09-23

123:15 A. No. I'm sorry. It wasn't '16 Re: [123:15 to 123:16]

123:16 or '17. It would have been '13 or '14. Pltf Obj 702

125:13 - 125:22 Keefer, Emily 2020-09-23

125:13 Q. And this anxiety continued,

125:14 didn't get better, didn't really get

125:15 worse, until -- all through the end of

125:16 your marriage?

125:17 A. Correct.

125:18 Q. And did -- did this contribute

125:19 to the end of your marriage, Mr. Keefer's

125:20 anxiety?

125:21 A. I wouldn't say that his anxiety

125:22 contributed to our divorce, no.

125:23 - 126:11 Keefer, Emily 2020-09-23

125:23 Q. We -- we sort of touched on this Re: [125:23 to 126:11]

126:01 earlier, but not in the context of Pltf Obj 402, 403, 602, 702

126:02 anxiety. Did -- did Mr. Keefer's worry

OBJECTIONS 

WITHDRAWN, 3/13/2021

OBJECTIONS 

WITHDRAWN, 3/13/2021

OBJECTIONS 

WITHDRAWN, 3/13/2021

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 228 of 305
126:03 and anxiety limit his desire to

126:04 socialize?

126:05 A. While we were together, I

126:06 wouldn't say that it did. I mean, he's

126:07 -- he has mentioned that recently it, you

126:08 know, just hasn't felt the greatest. But

126:09 when we were together, I wouldn't say

126:10 that his anxiety limited his, you know,

126:11 want or need to be social.

126:17 - 126:19 Keefer, Emily 2020-09-23

126:17 Q. Yeah. When did he mention to Re: [126:17 to 126:19]

126:18 you that lately he hasn't been feeling Pltf Obj 402

126:19 the greatest?

126:21 - 127:03 Keefer, Emily 2020-09-23

126:21 A. I mean, just a phone Re: [126:21 to 127:03]

126:22 conversation maybe a few weeks ago. A Pltf Obj 402

126:23 timeline, I'm -- I'm not certain how long

127:01 ago it was. I've got so much on my plate

127:02 right now, I couldn't tell you what

127:03 happened yesterday.

128:03 - 128:07 Keefer, Emily 2020-09-23

128:03 Q. So, were you aware that Mr.

128:04 Keefer applied for disability from the

128:05 Veterans Administration after his

128:06 military service?

128:07 A. Yes.

129:13 - 129:16 Keefer, Emily 2020-09-23

129:13 Q. All right. Just one moment. Re: [129:13 to 129:16]

129:14 All right. I'm going to share a Pltf Obj 402, 403, MIL C2 -

129:15 document. Okay. Can you see this unrelated disability claims,

129:16 document, Ms. Keefer? foundation

129:19 - 130:10 Keefer, Emily 2020-09-23

129:19 A. Yes. Re: [129:19 to 130:10]

129:20 Q. And you can see at the top it Pltf Obj 402, 403, MIL C2 -

129:21 says Department of Veteran -- Veterans unrelated disability claims,

129:22 Affairs? foundation

129:23 A. Yes.

130:01 Q. Let me go to the bottom here.

130:02 Sorry. I'll go back to the top. And you

130:03 can read the title here. It says,

130:04 "Notice to Veteran/Service Member of

130:05 Evidence Necessary to Substantiate a

130:06 Claim For Veterans Disability

130:07 Compensation and Related Compensation

130:08 Benefits."

130:09 Do you see that? Or did I read

130:10 that correctly?

130:17 - 131:02 Keefer, Emily 2020-09-23

130:17 Q. Did I read the title of this Re: [130:17 to 131:02]

130:18 document correctly? Pltf Obj 402, 403, 602, MIL C2

130:19 A. Reread it. I'm not certain if - unrelated disability claims,

130:20 you did or you didn't. foundation

130:21 Q. Sure. "Notice to

130:22 Veteran/Service Member of Evidence

130:23 Necessary to Substantiate a Claim For

131:01 Veterans Disability Compensation and

SUSTAINED

SUSTAINED

SUSTAINED

OBJECTIONS 

WITHDRAWN, 3/13/2021

OBJECTIONS 

WITHDRAWN, 3/13/2021

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 229 of 305
131:02 Related Compensation Benefits."

131:04 - 131:20 Keefer, Emily 2020-09-23

131:04 A. That's the title of the Re: [131:04 to 131:20]

131:05 document. Pltf Obj 402, 403, 602, MIL C2

131:06 Q. You see on the last page here - unrelated disability claims,

131:07 the name is Lewis Charles Keefer? foundation

131:08 A. Correct.

131:09 Q. And there's a list entitled "New

131:10 Claimed Disabilities." Do you see that?

131:11 A. I do.

131:12 Q. So, let's go through the list

131:13 here. Were you aware that Mr. Keefer

131:14 claimed to suffer posttraumatic stress

131:15 disorder in relation to his military

131:16 service?

131:17 A. I wasn't aware of what was

131:18 claimed on that. I didn't fill out the

131:19 paperwork. I'm not sure what he did or

131:20 did not claim.

132:06 - 132:08 Keefer, Emily 2020-09-23

132:06 Q. Okay. On the second claim, it Re: [132:06 to 132:08]

132:07 reads, "Knee condition, bilateral." Is Pltf Obj 402, 403, 602, MIL C2

132:08 that right? - unrelated disability claims,

foundation

132:10 - 132:14 Keefer, Emily 2020-09-23

132:10 A. That's what it reads. Re: [132:10 to 132:14]

132:11 Q. Did -- did Mr. Keefer ever Pltf Obj 402, 403, 602, 702,

132:12 complain of a knee condition that foundation, MIL C2 - unrelated

132:13 resulted from his military service to disability claims

132:14 you?

132:16 - 132:20 Keefer, Emily 2020-09-23

132:16 A. I believe earlier you asked if Re: [132:16 to 132:20]

132:17 he complained of knee pain, which he did. Pltf Obj 402, 403, 602, 702,

132:18 I can't determine whether it's from his foundatoin, MIL C2 - unrelated

132:19 military service or not. I'm not -- not disability claims

132:20 a professional.

132:21 - 133:02 Keefer, Emily 2020-09-23

132:21 Q. Did he ever claim or suggest Re: [132:21 to 133:02]

132:22 that his knee condition that he suffered Pltf Obj 402, 403, 702,

132:23 after -- knee pain that he suffered after cumulative, foundation, MIL C2

133:01 his military service was caused by his - unrelated disability claims

133:02 military service?

133:04 - 133:14 Keefer, Emily 2020-09-23

133:04 A. I don't recall. Re: [133:04 to 133:14]

133:05 Q. On number 3, tuberculosis, you Pltf Obj 402, 403, cumulative,

133:06 testified that you weren't aware that he foundation, MIL C2 - unrelated

133:07 was ever diagnosed with tuberculosis in disability claims

133:08 the military. Is that correct?

133:09 A. All I knew was that he ended up

133:10 going and getting an x-ray. I didn't

133:11 know the outcome.

133:12 Q. So you were not aware of any

133:13 diagnosis of tuberculosis during his

133:14 military service?

133:16 - 134:05 Keefer, Emily 2020-09-23

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 230 of 305
133:16 A. I wasn't aware of the outcome. Re: [133:16 to 134:05]

133:17 Q. With respect to number 4, it Pltf Obj 402, 403, cumulative,

133:18 lists sleep disturbances. You noticed foundation, 611; leading; MIL

133:19 that Mr. Keefer had trouble sleeping. Is C2 - unrelated disability

133:20 that right? claims

133:21 A. He had trouble sleeping, yes.

133:22 Q. And did you discuss the reasons

133:23 that he had trouble sleeping with Mr.

134:01 Keefer?

134:02 A. Did not.

134:03 Q. He never claimed to you that it

134:04 was related to anxiety or resulting from

134:05 combat that he had trouble sleeping?

134:07 - 134:07 Keefer, Emily 2020-09-23

134:07 A. No. Re: [134:07 to 134:07]

Pltf Obj 402, 403, cumulative,

foundation, MIL C2 - unrelated

disability claims

134:15 - 134:21 Keefer, Emily 2020-09-23

134:15 Q. Number 6 reads, "Signs or Re: [134:15 to 134:21]

134:16 symptoms involving cardiovascular Pltf Obj 402, 403, 602,

134:17 system." Is that right? cumulative, foundation, MIL C2

134:18 A. It does. - unrelated disability claims

134:19 Q. Were you aware of any

134:20 cardiovascular issues that Mr. Keefer had

134:21 during his military service?

134:23 - 135:02 Keefer, Emily 2020-09-23

134:23 A. I never went to any kind of Re: [134:23 to 135:02]

135:01 medical appointments with him. Pltf Obj 402, 403, 602,

135:02 Q. And he never mentioned having cumulative, foundation, MIL C2

- unrelated disability claims

Re: [135:02 to 135:03]

Pltf Obj 402, 403, 602,

cumulative, foundation, 611;

leading MIL C2 - unrelated

disability claims

135:02 - 135:03 Keefer, Emily 2020-09-23

135:02 Q. And he never mentioned having Re: [134:23 to 135:02]

135:03 any cardiovascular problems? Pltf Obj 402, 403, 602,

cumulative, foundation, MIL C2

- unrelated disability claims

Re: [135:02 to 135:03]

Pltf Obj 402, 403, 602,

cumulative, foundation, 611;

leading MIL C2 - unrelated

disability claims

135:05 - 135:15 Keefer, Emily 2020-09-23

135:05 A. I don't recall him ever Re: [135:05 to 135:15]

135:06 mentioning it. Pltf Obj 402, 403, 602,

135:07 Q. Number 10 reads, "Hand cumulative, foundation, MIL C2

135:08 condition, bilateral." Do you see that? - unrelated disability claims

135:09 A. I can see that.

135:10 Q. Did Mr. Keefer ever complain of

135:11 hand pain after his military service?

135:12 A. I don't recall.

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 231 of 305
135:13 Q. Number 12 reads, "Vision." Did

135:14 Mr. Keefer ever complain of vision

135:15 problems after his military service?

135:17 - 136:02 Keefer, Emily 2020-09-23

135:17 A. After his military service, no. Re: [135:17 to 136:02]

135:18 Q. And you never noticed any vision Pltf Obj 402, 403, 602, 702,

135:19 problems other than that he needed 611; leading, MIL C2 -

135:20 glasses? unrelated disability claims

135:21 A. Not that I recall.

135:22 Q. Number 13 reads, "Chronic

135:23 headache." Were you aware that Mr.

136:01 Keefer suffered from chronic headaches

136:02 after his military service?

136:04 - 136:06 Keefer, Emily 2020-09-23

136:04 A. I was not aware. Re: [136:04 to 136:06]

136:05 Q. Did he ever complain of chronic Pltf Obj 402, 403, 602,

136:06 headaches? foundation, MIL C2 - unrelated

disability claims

136:08 - 136:10 Keefer, Emily 2020-09-23

136:08 A. Not to me. Re: [136:08 to 136:10]

136:09 Q. Did you ever notice him having Pltf Obj 402, 403, 602,

136:10 chronic headaches? foundation, MIL C2 - unrelated

disability claims

136:12 - 137:06 Keefer, Emily 2020-09-23

136:12 Q. Notice anything that he had a Re: [136:12 to 137:06]

136:13 headache? Pltf Obj 402, 403, 602, 702,

136:14 A. Not that I recall. foundation, MIL C2 - unrelated

136:15 Q. Number 14 says, "Ankle disability claims

136:16 condition, bilateral." Do you see that?

136:17 A. I do.

136:18 Q. Did Mr. Keefer ever complain of

136:19 ankle pain after his military service?

136:20 A. Not that I recall.

136:21 Q. Did you ever notice him having

136:22 any difficulty with his ankles?

136:23 A. Not that I can remember.

137:01 Q. Number 16 says, "Nonspecific

137:02 respiratory condition." Do you see that?

137:03 A. I do.

137:04 Q. Do you remember Mr. Keefer

137:05 having any respiratory difficulties after

137:06 his military service?

137:08 - 137:08 Keefer, Emily 2020-09-23

137:08 A. Not that I recall. Re: [137:08 to 137:08]

Pltf Obj 402, 403, 602,

foundation, MIL C2 - unrelated

disability claims

137:09 - 137:11 Keefer, Emily 2020-09-23

137:09 Q. Did he ever complain of any Re: [137:09 to 137:11]

137:10 respiratory difficulties after his Pltf Obj 402, 403, 602,

137:11 military service? foundation, MIL C2 - unrelated

disability claims

137:13 - 137:20 Keefer, Emily 2020-09-23

137:13 A. Not that I recall. Re: [137:13 to 137:20]

137:14 Q. Number 18 says, "Eye condition, Pltf Obj 402, 403, 602, 702,

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 232 of 305
137:15 left." Do you see that? foundation, MIL C2 - unrelated

137:16 A. Uh-huh. Yes. disability claims

137:17 Q. Do you recall Mr. Keefer having

137:18 any problems with his left eye after his

137:19 military service?

137:20 A. Not that I recall.

138:02 - 138:04 Keefer, Emily 2020-09-23

138:02 Q. Sorry. Did he ever complain of Re: [138:02 to 138:04]

138:03 any problems with his left eye after his Pltf Obj 402, 403, 602,

138:04 military service? foundation, MIL C2 - unrelated

disability claims

138:06 - 138:12 Keefer, Emily 2020-09-23

138:06 A. Not to me. Re: [138:06 to 138:12]

138:07 Q. You can see under "Secondary Pltf Obj 402, 403, 602,

138:08 Disabilities" here, number 1 says, "Sleep foundation, MIL C2 - unrelated

138:09 apnea"? disability claims

138:10 A. Yes.

138:11 Q. And it says, "Secondary to sleep

138:12 disturbances." You see that?

138:14 - 138:16 Keefer, Emily 2020-09-23

138:14 A. I do. Re: [138:14 to 138:16]

138:15 Q. Did Mr. Keefer ever complain of Pltf Obj 402, 403, vague,

138:16 sleep apnea? foundation, MIL C2 - unrelated

disability claims

138:18 - 138:19 Keefer, Emily 2020-09-23

138:18 Q. After his military service? Re: [138:18 to 138:19]

138:19 A. No. Pltf Obj 402, 403, vague, MIL

C2 - unrelated disability

claims

138:21 - 138:21 Keefer, Emily 2020-09-23

138:21 A. Not to me. Re: [138:21 to 138:21]

Pltf Obj 402, 403, vague, MIL

C2 - unrelated disability

claims

138:23 - 139:03 Keefer, Emily 2020-09-23

138:23 Regarding the -- Mr. Keefer's Re: [138:23 to 139:03]

139:01 anxiety, did Mr. Keefer ever suffer panic Pltf Obj 402, 403, 702, , MIL

139:02 attacks that you witnessed? C2 - unrelated disability

139:03 A. That I witnessed? No. claims

142:22 - 143:04 Keefer, Emily 2020-09-23

142:22 Q. And he was able to get a job

142:23 after he left the military; correct?

143:01 A. Yes. Yes. He has a job now.

143:02 Q. And he has been continuously

143:03 employed as a police officer since he got

143:04 that job?

143:06 - 143:13 Keefer, Emily 2020-09-23

143:06 A. I am not sure. It was after we

143:07 were divorced. I don't babysit.

143:08 Q. All right. Just one -- just a

143:09 moment here.

143:10 He's been employed continuously

143:11 -- has he been -- has he had a job

143:12 continuously since he first obtained a

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 233 of 305
143:13 job in Oklahoma?

143:15 - 143:19 Keefer, Emily 2020-09-23

143:15 A. He was continuously employed

143:16 while we were married living in Oklahoma.

143:17 After that, again, I -- I don't know.

143:18 He's a grown man. I don't babysit. He

143:19 was my ex-husband after that point.

146:12 - 146:15 Keefer, Emily 2020-09-23

146:12 Q. But just in your -- to your Re: [146:12 to 146:15]

146:13 knowledge, there's no reason that Pltf Obj 402, 403, 602, 702,

146:14 prevents him from working like anyone MIL C2 - unrelated disability

146:15 else? claims

146:17 - 146:19 Keefer, Emily 2020-09-23

146:17 A. Not to my knowledge. Re: [146:17 to 146:19]

146:18 Q. Is there anything that prevents Pltf Obj 402, 403, 602, 702,

146:19 him from mowing the lawn, for example? MIL C2 - unrelated disability

claims

146:21 - 147:01 Keefer, Emily 2020-09-23

146:21 A. Not that I'm aware of. Re: [146:21 to 147:01]

146:22 Q. Anything that prevents him from Pltf Obj 402, 403, 602, 702,

146:23 doing household chores like cleaning the MIL C2 - unrelated disability

147:01 dishes? claims

147:03 - 147:09 Keefer, Emily 2020-09-23

147:03 A. Not that I'm aware of. Re: [147:03 to 147:09]

147:04 Q. Anything that prevents him from Pltf Obj 402, MIL C2 -

147:05 recreational activities, like going unrelated disability claims

147:06 fishing, for example?

147:07 A. Not that I'm aware of.

147:08 Q. Anything that prevents him from

147:09 throwing a baseball with his children?

147:11 - 147:13 Keefer, Emily 2020-09-23

147:11 A. Not that I'm aware of. Re: [147:11 to 147:13]

147:12 Q. Anything that prevents him from Pltf Obj 402, 403, 602, MIL C2

147:13 being an active father in general? - unrelated disability claims

147:15 - 147:15 Keefer, Emily 2020-09-23

147:15 A. Not that I'm aware of. Re: [147:15 to 147:15]

Pltf Obj 402, 403, 602, MIL C2

- unrelated disability claims

147:23 - 148:02 Keefer, Emily 2020-09-23

147:23 Q. Is there anything that prevents Re: [147:23 to 148:02]

148:01 him from being able to read to his Pltf Obj 402, 403, 602, 702,

148:02 children at night, for example? MIL C2 - unrelated disability

claims

148:04 - 148:07 Keefer, Emily 2020-09-23

148:04 A. No idea. Re: [148:04 to 148:07]

148:05 Q. Or anything that prevents him Pltf Obj 402, 403, 602, 702,

148:06 from being able to hug his children or MIL C2 - unrelated disability

148:07 have physical contact with them? claims

148:09 - 148:09 Keefer, Emily 2020-09-23

148:09 A. Not that I'm aware of. Re: [148:09 to 148:09]

Pltf Obj 402, 403, 602, 702,

MIL C2 - unrelated disability

OVERRULED

OVERRULED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

OVERRULED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 234 of 305
claims

162:16 - 162:19 Keefer, Emily 2020-09-23

162:16 So, earlier you testified that Re: [162:16 to 162:19]

162:17 Mr. Keefer was demoted because of your Pltf Obj cumulative, misstates

162:18 attitude and interactions with the

162:19 sergeant; correct?

162:21 - 162:22 Keefer, Emily 2020-09-23

162:21 A. That was my understanding. Re: [162:21 to 162:22]

162:22 Q. And you're not aware of any Pltf Obj 402, 403, 602,

cumulative, MIL re bad acts

162:23 - 163:02 Keefer, Emily 2020-09-23

162:23 other -- you were not aware of any other Re: [162:23 to 163:02]

163:01 causes of his demotion. Is that correct? Pltf Obj 402, 403, 602,

163:02 A. Correct. cumulative, MIL re bad acts

163:04 - 163:10 Keefer, Emily 2020-09-23

163:04 Q. Okay. I just want to show you Re: [163:04 to 163:10]

163:05 Mr. Keefer's testimony on this topic. Pltf Obj 402, 403, 602,

163:06 So, this is similar to what we looked at cumulative, MIL re bad acts,

163:07 earlier. This is the transcript of Mr. foundation, vague

163:08 Keefer's testimony and deposition in this

163:09 case on July 30th, 2020, which was given

163:10 under oath. So I'll just give you a

164:20 - 165:08 Keefer, Emily 2020-09-23

164:20 Q. So, did Mr. Keefer ever tell you Re: [164:20 to 165:08]

164:21 about any of the events that are Pltf Obj 402, 403, 602,

164:22 described in his testimony? cumulative, MIL re bad acts,

164:23 A. No. foundation, vague

165:01 Q. He never told you about the

165:02 sexual harassment charge?

165:03 A. No. He didn't. Obviously, he

165:04 told me about the reduction in rank, and

165:05 I knew that because the pay was changed.

165:06 That -- that's all that I knew. He

165:07 didn't mention anything else that he

165:08 testified on.

165:22 - 166:03 Keefer, Emily 2020-09-23

165:22 Q. Well, Mr. Keefer didn't mention Re: [165:22 to 166:03]

165:23 any of the -- the events that are Pltf Obj 402, 403, 602,

166:01 described here with respect to the sexual cumulative, misstates,

166:02 harassment or anything other than the foundation, MIL re bad acts

166:03 rank reduction; correct?

166:05 - 166:09 Keefer, Emily 2020-09-23

166:05 A. Correct. Re: [166:05 to 166:09]

166:06 Q. So, when he told you that your Pltf Obj 402, 403, 602,

166:07 attitude towards the sergeant had caused cumulative, misstates,

166:08 his demotion, he wasn't giving you the foundation, MIL re bad acts

166:09 full story. Is that right?

166:12 - 166:12 Keefer, Emily 2020-09-23

166:12 A. He -- he just told me one thing. Re: [166:12 to 166:12]

Pltf Obj 402, 403, 602,

cumulative, foundation, MIL re

bad acts

167:02 - 167:03 Keefer, Emily 2020-09-23

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 235 of 305
167:02 Q. Would you have wanted to know if Re: [167:02 to 167:03]

167:03 he was charged with sexual harassment? Pltf Obj 402, 403, 602,

cumulative, misstates,

argumentative, foundation, MIL

re bad acts

167:05 - 167:06 Keefer, Emily 2020-09-23

167:05 A. I think any person would want Re: [167:05 to 167:06]

167:06 to. Pltf Obj 402, 403, 602,

cumulative, misstates,

foundation, argumentative, MIL

re bad acts

168:06 - 168:08 Keefer, Emily 2020-09-23

168:06 Q. Would you have wanted to know, Re: [168:06 to 168:08]

168:07 in particular as Mr. Keefer's wife, if he Pltf Obj 402, 403, 602,

168:08 had been charged with sexual harassment? cumulative, misstates,

foundation, argumentative, MIL

re bad acts

168:11 - 168:11 Keefer, Emily 2020-09-23

168:11 A. If he was charged, yes. Re: [168:11 to 168:11]

Pltf Obj 402, 403, 602,

cumulative, misstates,

foundation, argumentative, MIL

re bad acts

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 236 of 305
Pltf Objections 3M 

751:18 ‐ 752:16 Kieper, Ronald 2019‐12‐20

751:18 Q. Good afternoon:751:19 A. Good afternoon.

751:20 Q. Will you please introduce yourself to the

751:21 jury?751:22 A. Yes. My name is Ronald William Kieper.

751:23 Q. Mr. Kieper, where do you currently reside?

751:24 A. I live in Plainfield, Indiana.

751:25 Q. Where is Plainfield, Indiana?

752:01 A. From Indianapolis, it is about 15 miles to

752:02 the southwest.

752:03 Q. And how long have you lived in Plainfield,

752:04 Indiana?752:05 A. 34 years.

752:06 Q. Mr. Kieper, are you familiar with a

752:07 product by the name of Combat Arms Earplug Version 2?

752:08 A. I am.

752:09 Q. How so?

752:10 A. The Combat Arms Version 2 was manufactured

752:11 and sold by Aearo Company and perhaps other named

752:12 companies, but it was the same ‐‐ the same company.

752:13 And I did the product testing on the device, I did

752:14 real‐ear testing on it, and the results of those tests

752:15 were noise reduction ratings with which the product

752:16 was labeled.

752:22 ‐ 753:20 Kieper, Ronald 2019‐12‐20

752:22 Q. Okay. If you can look at the slide here, Re: [753:13 to 753:20]752:23 I'd just like to quickly tick this off, Mr. Kieper. Pltf Obj 402; 403;

752:24 Can you please start with what you ‐‐ what nonresponsive

752:25 school you went to after you graduated from high

753:01 school?753:02 A. I went to Concordia Lutheran Junior

753:03 College in Ann Arbor ‐‐ Ann Arbor, Michigan. That's

753:04 as it says, it's a two‐year college, and I was

753:05 studying for the Lutheran ministry.

753:06 Q. What did you do after Concordia Junior

753:07 College?753:08 A. I came back to Indianapolis and a friend

753:09 of mine was working at Lutheran Child and Family

753:10 Services. Excuse me. He asked me if I wanted a

753:11 summer job, and I said, yes, and the summer job lasted

753:12 12 years.

753:13 Q. Nice.753:14 A. Working with emotionally disturbed

753:15 children. I was in the dormitory with the teenage

753:16 boys and was a child care worker at that institution

753:17 until I left there to go to the Methodist Children's

753:18 Home in Lebanon, Indiana for a few months. In

753:19 November of 1980 my mother was diagnosed with a brain

753:20 tumor and she subsequently passed away in May of 1981.

753:24 ‐ 756:16 Kieper, Ronald 2019‐12‐20

753:24 Q. I think you said that you went to the

753:25 Methodist Children's Home?

754:01 A. Yes.

754:02 Q. What did you do there?

754:03 A. I was a child care worker as I was at

754:04 Lutheran Child and Family Services.

754:05 Q. What did you do after the Meth ‐‐ after

3M Affirmatives Plft Counters

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 237 of 30
754:06 working at the Methodist Children's Home?

754:07 A. After my mother passed, I was looking for

754:08 a job and a friend of mine was working at E‐A‐R

754:09 Division of Cabot Corporation and told me that they

754:10 were hiring, so I applied for and was hired to work in

754:11 the manufacturing part of that company. I worked

754:12 on ‐‐ initially I work on the casting line where,

754:13 among other things, we made the foam that's used to

754:14 make the yellow foam earplugs, the E‐A‐R plugs.

754:15 Q. When were you first hired by the Cabot

754:16 Safety Corporation?754:17 A. In June of 1981.

754:18 Q. So I thought ‐‐ I think you said you were

754:19 working on the casting line where they were

754:20 manufacturing yellow E‐A‐R foam plugs, is that right?

754:21 A. They ‐‐ we manufactured the foam and then

754:22 we put that into 150‐foot rolls, if I remember

754:23 correctly, and then after the rolls aged they would go

754:24 across the street and be punched into earplugs.

754:25 Q. It says here also that you have ‐‐ you

755:01 went to Purdue University in 1986.

755:02 So were you ‐‐ did you go to Purdue

755:03 University while you were working at the E‐A‐R

755:04 Division at Cabot Corporation?

755:05 A. I did. I was actually ‐‐ I was going to

755:06 Indiana University Purdue University of Indianapolis

755:07 and I was ‐‐ at that time I was studying for a degree

755:08 in social work, which I did not complete. After I was

755:09 hired at E‐A‐R Division, Aearo Company, if you will,

755:10 they had tuition reimbursement program, so I returned

755:11 to school and eventually completed my degree in

755:12 computer technology in the early '90s.

755:13 Q. Did you have any other jobs at the E‐A‐R

755:14 Division for Cabot Safety Corporation other than

755:15 working on the casting line?755:16 A. For two years I worked in the Noise

755:17 Control Products Division, and that was filling orders

755:18 and punching materials into parts for noise damping.

755:19 The materials that we made the foam earplugs from was

755:20 also useful in damping vibration and noise from noisy

755:21 machinery, so. After two years there in that position

755:22 an opening came up in the technical department and I

755:23 applied for that and was hired by Mr. Elliott Berger

755:24 in 1980 ‐‐ September of 1988.

755:25 Q. And what did you do in the technical

756:01 group?756:02 A. I ran the Hearing Conservation Program for

756:03 the company for several years, I was responsible for

756:04 maintaining the electronic equipment that was used in

756:05 the real‐ear testing procedures that we did in the

756:06 E‐A‐RCAL Laboratory. I maintained the calibration

756:07 records for those ‐‐ for that equipment and I did

756:08 research and development testing both on humans and

756:09 with acoustic test fixtures to measure the insertion

756:10 loss of hearing protectors.

756:11 Q. What was your title in the technical

756:12 group?756:13 A. I was an acoustic technician.

756:14 Q. You mentioned that you did R&D testing on

756:15 human subjects for ‐‐ with hearing protection devices.

756:16 Did I get that right?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 238 of 30
756:19 ‐ 756:19 Kieper, Ronald 2019‐12‐20

756:19 A. Yes, that's correct.

756:21 ‐ 757:25 Kieper, Ronald 2019‐12‐20

756:21 Q. Did you also do REAT testing on human

756:22 subjects?756:23 A. Yes. The acronym REAT stands for real‐ear

756:24 attenuation at threshold testing.

756:25 Q. Did you receive any training to learn how

757:01 to conduct REAT testing on human subjects for hearing

757:02 protection devices?757:03 A. The training I got was two weeks with the

757:04 previous technician, Richard Ness, and guidance by

757:05 Mr. Berger, and subsequently to the two‐week training

757:06 period, it was myself and Mr. Berger, and I learned

757:07 from him and I learned how to do the procedures that

757:08 needed to be done on the job.

757:09 Q. Did you receive any other training?

757:10 A. Yes. I took a 20‐hour course to become a

757:11 certified occupational hearing conservationist that I

757:12 was ‐‐ I used that information to continue the Hearing

757:13 Conservation Program at E‐A‐R Aearo.

757:14 Q. It says here that from ‐‐ you were at the

757:15 E‐A‐R Division in the technical group from 1988 to

757:16 2006.757:17 Were you an acoustical technician the

757:18 entire time?

757:19 A. Actually, it was 2016.

757:20 Q. 2016. Apologies.

757:21 A. Yes. And I was ‐‐ my title as I got older

757:22 it changed to senior acoustic technician, but my job

757:23 duties were basically the same.

757:24 Q. And they were the same from Cabot to Aearo

757:25 to 3M, all of those entities?

758:01 ‐ 758:24 Kieper, Ronald 2019‐12‐20

758:01 A. Yes. Re: [758:06 to 758:24]758:02 Q. Did you retire in 2016 from the E‐A‐R Pltf Obj 402; 403; narrative

758:03 Division of 3M? question calling for a

758:04 A. It was simply 3M at the time, but, yes, narrative response

758:05 excuse me, I retired at the end of June in 2016.

758:06 Q. What did you do next?

758:07 A. Well, I purchased a motorcycle and I took

758:08 a riding course because I had never ‐‐ I had ridden a

758:09 motorcycle before, before our ‐‐ my wife and my son

758:10 are ‐‐ or my wife ‐‐ our son was born and I had gotten

758:11 rid of the motorcycle when my wife got pregnant with

758:12 our son, so, but I took this riding course and

758:13 subsequently joined the group ABATE, which is an

758:14 acronym for American Bikers Attuned to Education, and

758:15 I was a member of that group for a few months when one

758:16 of the officers fell ill and resigned his post, so I

758:17 took over those responsibilities as what they call a

758:18 LINC person, L‐I‐N‐C, and I don't remember what that

758:19 means, but basically I reported to the group what the

758:20 national ‐‐ what national organizations, the

758:21 Motorcycle Riders Foundation and the American

758:22 Motorcycle Association, what bills in Congress they

758:23 were supporting and bills that they were not

758:24 supporting.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 239 of 30
759:03 ‐ 759:08 Kieper, Ronald 2019‐12‐20

759:03 Q. Do you currently work for ABATE?

759:04 A. I do motorcycle certification training in

759:05 Indiana. People who ride motorcycles, before they can

759:06 get certified on their driver's license, they have to

759:07 take a test, and so I was trained to give these people

759:08 the motorcycle riding test.

759:09 ‐ 759:14 Kieper, Ronald 2019‐12‐20

759:09 Q. It also says here that you were a Re: [759:09 to 759:10 consultant for 3M company in 2016? Def Obj releva

759:11 A. Yes. 3M requires that retirees are away misleading; 40

759:12 from the company for one month. So in August of 2017

759:13 I was hired as a consultant for 3M and again worked

759:14 under Elliott Berger.

759:15 ‐ 760:25 Kieper, Ronald 2019‐12‐20

759:15 Q. Other than your work with ABATE currently, Re: [759:15 to 760:04]759:16 do you do any other work? Pltf Obj 402; 403;

759:17 A. I volunteer for an organization called ‐‐ nonresponsive

759:18 the acronym is C.A.R.E. It's the Center for At Risk

759:19 Elders. It's an organization in Marion County,

759:20 Indiana of a group of lawyers who have banded together

759:21 to ‐‐ and they get guardianship of people who cannot

759:22 take care of themselves and have no family to support

759:23 them. So I volunteer and I am a ‐‐ I was assigned a

759:24 client, so he is my guardian as a representative of

759:25 C.A.R.E.760:01 Q. He is your guardian?

760:02 A. Well, he is ‐‐ he is C.A.R.E.'s guardian

760:03 and I ‐‐ I look in on him at the group home in which

760:04 he lives.

760:05 Q. Were you involved in the design of hearing

760:06 protection products at any time that you were employed

760:07 by Cabot, Aearo or 3M?

760:08 A. No, I wasn't.

760:09 Q. Were you involved in the marketing of

760:10 hearing protection products at any time that you were

760:11 employed by Cabot, Aearo or 3M?

760:12 A. No, I was not.

760:13 Q. Were you involved in the sale of hearing

760:14 protection products at any time that you were employed

760:15 by Cabot, Aearo or 3M?

760:16 A. I was not.

760:17 Q. Were you involved in the drafting or

760:18 editing of user instructions of hearing protection

760:19 products at any time that you were employed by Cabot,

760:20 Aearo or 3M?

760:21 A. No.

760:22 Q. Was it part of ‐‐ was it a part of your

760:23 job responsibility at any time that you were employed

760:24 by Cabot, Aearo or 3M to do any consumer research on

760:25 the use of hearing protection products?

761:03 ‐ 761:03 Kieper, Ronald 2019‐12‐20

761:03 A. No.

761:05 ‐ 761:08 Kieper, Ronald 2019‐12‐20

761:05 Q. Was it a part of your job responsibility

761:06 at any time that you were employed by Cabot, Aearo or

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 240 of 30
761:07 3M to talk to the military about the company's hearing

761:08 products?

761:11 ‐ 761:11 Kieper, Ronald 2019‐12‐20

761:11 A. No.

761:13 ‐ 761:25 Kieper, Ronald 2019‐12‐20

761:13 Q. You previously testified that there are

761:14 different standards or methods for testing hearing

761:15 protection devices.761:16 Do you remember that testimony?

761:17 A. Yes.

761:18 Q. And specifically you mentioned being

761:19 familiar with two ANSI standards.761:20 Do you remember what those two ANSI

761:21 standards were?

761:22 A. Yes. The first is ANSI S3.19‐1974 and the

761:23 second standard is S ‐‐ ANSI S12.6‐1997.

761:24 Q. When conduct ‐‐ when conducting a REAT

761:25 labeling test, which of those ANSI standards is

762:01 ‐ 762:01 Kieper, Ronald 2019‐12‐20

762:01 applicable?

762:04 ‐ 762:05 Kieper, Ronald 2019‐12‐20

762:04 A. For labeling tests, the ANSI S3.19‐1974

762:05 standard is used.

762:07 ‐ 762:13 Kieper, Ronald 2019‐12‐20

762:07 Q. Can you just remind us what REAT stands

762:08 for?762:09 A. REAT stands for real‐ear attenuation at

762:10 threshold.762:11 Q. Do you have an understanding as to why the

762:12 ANSI S3.19 standard is applicable to REAT labeling

762:13 tests?

762:16 ‐ 762:20 Kieper, Ronald 2019‐12‐20

762:16 A. It is applicable because it describes the

762:17 method by which hearing protectors are tested on

762:18 people to obtain a best fit to ‐‐ to estimate the

762:19 amount of protection that a person who fit the hearing

762:20 protectors well could obtain.

762:23 ‐ 762:24 Kieper, Ronald 2019‐12‐20

762:23 Q. Is it your understanding that ANSI S3.19

762:24 is required under the REAT to do a REAT labeling test?

763:02 ‐ 763:02 Kieper, Ronald 2019‐12‐20

763:02 A. Yes, that's my understanding.

768:19 ‐ 768:21 Kieper, Ronald 2019‐12‐20

768:19 Q. I want to direct your attention to

768:20 Section 3.3.3 of the ANSI S3.19 standard.

768:21 A. Yes.

768:22 ‐ 768:23 Kieper, Ronald 2019‐12‐20

768:22 Q. And that's at Bates MDL 187997 in

768:23 Exhibit 36.

769:08 ‐ 769:21 Kieper, Ronald 2019‐12‐20

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 241 of 30
769:08 What are the two fits that ANSI S3.19

769:09 standard details in Section 3.3.3?

769:10 A. It details first a subject fit and

769:11 secondly an Experimenter‐Fit.

769:12 Q. Can you describe to the jury what subject

769:13 fit is?769:14 A. As described in the standard, the

769:15 experimenter gives the listener or test subject the

769:16 instructions on fitting the hearing protector in

769:17 accordance with the instructions from the manufacturer

769:18 and then the subject or the listener inserts the

769:19 hearing protector on him or herself.

769:20 Q. Is there any guidance from the

769:21 experimenter?

770:01 ‐ 770:01 Kieper, Ronald 2019‐12‐20

770:01 A. No assistance is given.

770:03 ‐ 770:19 Kieper, Ronald 2019‐12‐20

770:03 Q. Can you describe to the jury what

770:04 Experimenter‐Fit is under Section 3.3.3?

770:05 A. Yes.

770:06 Experimenter‐Fit says that the

770:07 experimenter, and in cases that we are talking about I

770:08 was the experimenter, the experimenter shall fit and

770:09 personally check the ‐‐ each hearing protector

770:10 installation on the subject. And the ‐‐ once the

770:11 hearing protector is fit to the ‐‐ fit is assessed by

770:12 turning on a fitting noise for the subject to use to

770:13 assess that they have a good fit of the hearing

770:14 protector. After that is done, the fitting noise is

770:15 turned off, the experimenter leaves the test chamber

770:16 and the test is begun.

770:17 Q. Under Experimenter‐Fit in the ANSI S3.19

770:18 standard, it describes "best fit."

770:19 What does best fit mean to you?

770:22 ‐ 771:03 Kieper, Ronald 2019‐12‐20

770:22 A. To me a best fit is the fitting the

770:23 hearing protector such that the noise ‐‐ the fitting

770:24 noise level is reduced as much as possible in the

770:25 listener's ear, and hence when the attenuation test is

771:01 done, the subject, the test subject, the listener, is

771:02 achieving as much protection as he or she can achieve

771:03 with that particular hearing protector.

771:05 ‐ 771:15 Kieper, Ronald 2019‐12‐20

771:05 Q. And when you say "as much protection,"

771:06 what do you mean?

771:07 A. I mean each person is unique and in the

771:08 fitting and testing of hearing protectors, different

771:09 people can get different results even when the subject

771:10 and the experimenter agree that the hearing protector

771:11 is fit as well as it could be on this person. Some

771:12 people get higher levels of protection than other

771:13 people do.771:14 Q. So what is your goal in getting a best fit

771:15 under Experimenter‐Fit?

771:19 ‐ 771:25 Kieper, Ronald 2019‐12‐20

771:19 A. My goal is to fit the hearing protector

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 242 of 30
771:20 such that the subject gets as high a level of

771:21 protection as ‐‐ as is possible with ‐‐ with that

771:22 hearing protector.

771:23 BY MS. ELIZABETH:

771:24 Q. In your experience, what is the main

771:25 difference or differences between subject fit and

772:01 ‐ 772:01 Kieper, Ronald 2019‐12‐20

772:01 Experimenter‐Fit under the ANSI S3.19 standard?

772:04 ‐ 772:09 Kieper, Ronald 2019‐12‐20

772:04 A. The ‐‐ the main difference is that the ‐‐

772:05 in the subject fit the experimenter does not assist

772:06 the listener or test subject other than giving them

772:07 the fitting instructions that come with the device,

772:08 whereas an Experimenter‐Fit, the experimenter actually

772:09 fits the device on the person.

774:22 ‐ 774:24 Kieper, Ronald 2019‐12‐20

774:22 Q. Okay. What is your understanding as to

774:23 whether ANSI S12.6 is applicable to REAT testing of ‐‐

774:24 to label a hearing protection product with an NRR?

775:02 ‐ 775:22 Kieper, Ronald 2019‐12‐20

775:02 A. My understanding is the EPA designated

775:03 that S3.19 is the standard to be used when doing a

775:04 labeling test of a hearing protector.

775:05 BY MS. ELIZABETH:

775:06 Q. You previously testified that the Aearo

775:07 lab was accredited by an organization called NVLAP in

775:08 approximately 1992.

775:09 Do you remember that testimony?

775:10 A. Yes.

775:11 Q. And can you remind us what NVLAP stands

775:12 for?775:13 A. The acronym stands for National Voluntary

775:14 Laboratory Accreditation Program.775:15 Q. To the best of your knowledge, for what

775:16 time period was the E‐A‐RCAL Lab accredited by NVLAP?

775:17 A. We were first accredited I believe in 1991

775:18 or '92, and as far as I know, they've ‐‐ they've

775:19 maintained that accreditation up to this date.

775:20 Q. In connection with that accreditation, do

775:21 you have an understanding as to whether NVLAP audited

775:22 Aearo's laboratory?

775:25 ‐ 776:18 Kieper, Ronald 2019‐12‐20

775:25 A. Yes. Our lab was audited for the initial

776:01 accreditation and every two years after that we had an

776:02 onsite auditor, a person come in as an auditor onsite

776:03 and perform ‐‐ look at all of our documents, look at

776:04 our calibration records, look at our procedures

776:05 manual, and numerous other documents that we would

776:06 supply them. The auditor would also observe myself

776:07 and later any other acoustic technicians that did

776:08 real‐ear testing, they would observe us do a test.

776:09 BY MS. ELIZABETH:

776:10 Q. So I think what I have here is that after

776:11 the initial audit by NVLAP, NVLAP in its audit every

776:12 two years of the E‐A‐RCAL Lab would look at the

776:13 E‐A‐RCAL Lab's documents, its calibration records, its

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 243 of 30
776:14 Policies and Procedures Manual, and numerous other

776:15 documents that you would supply them, and that the

776:16 auditor would also observe yourself and other acoustic

776:17 technicians conduct real‐ear testing.

776:18 Do I have that right?

776:21 ‐ 777:01 Kieper, Ronald 2019‐12‐20

776:21 A. Yes, you do.

776:22 BY MS. ELIZABETH:

776:23 Q. Okay. During those observations of the

776:24 real‐ear testing, would you have followed your

776:25 standard practices for testing hearing protection

777:01 products?

777:04 ‐ 777:16 Kieper, Ronald 2019‐12‐20

777:04 A. Yes. Re: [777:14 to 777:16]777:05 BY MS. ELIZABETH: Pltf Obj 611; 602; Lack of

777:06 Q. How so? What would you have done? Foundation and calls for

777:07 A. We would have done the same thing we would speculation

777:08 have done without the auditor there. If it was a

777:09 research and development test, we would have conducted

777:10 that. If it was a ‐‐ if we were doing a labeling

777:11 test, then we would have conducted ‐‐ we would have

777:12 tested one person on the hearing protector that we

777:13 were testing for a label value.777:14 Q. Is it your understanding that NVLAP had

777:15 the opportunity to determine whether you were testing

777:16 in compliance with their accreditation standards?

777:19 ‐ 777:25 Kieper, Ronald 2019‐12‐20

777:19 A. Yes, we were certified, we were accredited Re: [777:19 to 777:20]777:20 to test under both S3.19 and S12.6. Pltf Obj 611; 602; Lack of

777:21 BY MS. ELIZABETH: Foundation and calls for

777:22 Q. I want to direct your attention to speculation

777:23 Exhibit 19 that's been previously marked.

777:24 A. Yes, I have that.

777:25 Q. Do you recognize this document?

778:01 ‐ 778:09 Kieper, Ronald 2019‐12‐20

778:01 A. Yes, I do. Re: [778:06 to 778:09]778:02 Q. What is it? Pltf Obj 611; Lack of

778:03 A. It is a copy of the E‐A‐RCAL Lab's Foundation and calls for

778:04 Policies and Procedures Manual, dated February speculation

778:05 of 1999.

778:06 Q. Do you know whether NVLAP would have

778:07 reviewed Aearo Company's Policies and Procedures

778:08 Manual that has been marked as Exhibit 19 as a part of

778:09 their accreditation process?

778:11 ‐ 778:17 Kieper, Ronald 2019‐12‐20

778:11 BY THE WITNESS: Re: [778:12 to 778:12]778:12 A. Yes, they would have. Pltf Obj 611; Lack of

778:13 BY MS. ELIZABETH: Foundation and calls for

778:14 Q. Do you know whether NVLAP would have speculation

778:15 determined that Aearo's policies and procedures as of

778:16 1999 met the requirements for NVLAP's accreditation as Re: [778:14 to 778:17]

778:17 of that time? Pltf Obj Lack of Foundation

778:20 ‐ 778:24 Kieper, Ronald 2019‐12‐20

778:20 A. Yes, they ‐‐ they accredited us, they ‐‐ Re: [778:20 to 778:24]

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 244 of 30
778:21 our accreditation continued, and my understanding was Pltf Obj Lack of Foundation

778:22 that was confirmation that we were following the

778:23 procedures that we ‐‐ were outlined in this manual and

778:24 were following the test standard that we were using.

779:14 ‐ 780:01 Kieper, Ronald 2019‐12‐20

779:14 Q. When did you first begin your REAT

779:15 labeling tests under ANSI S3.19 on the Combat Arms

779:16 Earplug Version 2?

779:17 A. I believe we started the testing in

779:18 December of 1999.779:19 Q. And would the Exhibit 19 Policies and

779:20 Procedures Manual that is dated February 4th, 1999,

779:21 been in effect at that time?

779:22 A. Yes, it would have been.

779:23 Q. Do you know whether the NVLAP auditors

779:24 that accredited the E‐A‐RCAL Lab since 1992, do you

779:25 know whether those auditors were employees or

780:01 otherwise associated with Aearo or 3M?

780:04 ‐ 780:04 Kieper, Ronald 2019‐12‐20

780:04 A. They were not.

792:08 ‐ 792:20 Kieper, Ronald 2019‐12‐20

792:08 BY MS. ELIZABETH:

792:09 Q. Okay. I want to direct your attention

792:10 back to Exhibit 19, the Policies and Procedures Manual

792:11 in effect in 1999?

792:12 A. Yes.

792:13 Q. Okay. Please go to Bates 14581.

792:14 Are you there?

792:15 A. Yes, I am here.

792:16 Q. And there is a section titled

792:17 "Experimental Test Subjects."

792:18 Do you see that?

792:19 A. I see that.

792:20 Q. What generally does this section describe?

793:10 ‐ 793:25 Kieper, Ronald 2019‐12‐20

793:10 A. It describes the test panel that we had of

793:11 listeners in ‐‐ at this ‐‐ in this time period. It

793:12 describes their average age and their approximate

793:13 experience on the test panel, where they come from and

793:14 how they are paid, and it details the qualification of

793:15 a test subject to be on the E‐A‐RCAL Laboratory

793:16 listener panel.793:17 Q. So let's talk a little bit about that

793:18 qualification process. I want to direct your

793:19 attention to the section that says: "Initial793:20 screening."793:21 A. I see that.

793:22 Q. Okay. What is the first step that Aearo

793:23 took during this timeframe to qualify someone to be a

793:24 part of the test subject panel as of 1999?

793:25 A. ANSI S3.19 has hearing level requirements

794:01 ‐ 794:25 Kieper, Ronald 2019‐12‐20

794:01 for a person to be a listener or a test subject. So

794:02 when the person first came to the lab, I would first

794:03 of all do head and ear measurements. I would measure

794:04 their head's width and height and size their ear

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 245 of 30
794:05 canals with a sizing tool that we ‐‐ we had. And

794:06 after this prelim ‐‐ preliminary activities, I would

794:07 give them a pure tone audiogram to measure their

794:08 hearing sensitivity at frequencies from 500 to

794:09 8,000 hertz. And then subsequently if they were going

794:10 to be an S3.19 test subject, I'd measure their hearing

794:11 sensitivity at 125 and 250 hertz.

794:12 Q. Let's unpack that a little bit.

794:13 You mentioned that you would have the

794:14 potential test subjects do a pure tone audiogram.

794:15 Did I get that right?

794:16 A. That's ‐‐ yes, that's correct.

794:17 Q. Can you tell us what a pure tone audiogram

794:18 is?794:19 A. Yes.

794:20 People often call it a hearing test. It

794:21 uses pure tones, which the way I've always described

794:22 them are single‐pitched tones, and it measures the

794:23 person's hearing sensitivity at designated

794:24 frequencies, as I say, from 125 hertz up to

794:25 8,000 hertz.

794:25 ‐ 795:25 Kieper, Ronald 2019‐12‐20

794:25 8,000 hertz.

795:01 Q. To try to help me crystallize what this

795:02 is, can you explain to me and the jury how you would

795:03 conduct a pure tone audiogram on a potential test

795:04 subject?795:05 A. Yes. The subject and I would enter the

795:06 test chamber and they would sit in a chair next to the

795:07 wall where the audiometric head phones are stored.

795:08 Q. And when you say "audiometric head

795:09 phones," what do you mean?

795:10 A. Yes. They are like a pair of head phones

795:11 that one might wear listening to music.

795:12 Q. Okay.

795:13 A. They are ‐‐ they are ‐‐ they aren't those

795:14 kind of head phones. They are specific for presenting

795:15 these pure tones.

795:16 Q. Understood.795:17 A. Okay. I would put the head phones on the

795:18 subject and instruct them how to listen for and

795:19 respond to the test tones that would be presented.

795:20 After that instruction ‐‐ those instructions were

795:21 given, I would exit the chamber and I would begin the

795:22 audiogram.795:23 Then what would happen is in the person's

795:24 left ear the first tone that we would test would

795:25 typically be 1,000 hertz, and when the person could

796:01 ‐ 796:12 Kieper, Ronald 2019‐12‐20

796:01 just begin to hear the tone, they would put their

796:02 thumb or finger into the hand switch, this would cause

796:03 the tone to decrease in volume, and they would hold

796:04 their finger or thumb in the hand switch until they

796:05 could no longer hear the tone. Then they would lift

796:06 their thumb up and the tone's volume would increase.

796:07 So, again, when they heard the tone, they would press

796:08 again. So it would be a series of press, I hear it;

796:09 release, I don't hear it.

796:10 Q. How many times would the subject press and

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 246 of 30
796:11 release the lever for each sound frequency that they

796:12 heard?

796:17 ‐ 796:25 Kieper, Ronald 2019‐12‐20

796:17 A. It would vary, but I believe the

796:18 requirement is that there must be six reversals. So

796:19 what that means is a change of direction by either

796:20 inserting or taking out the thumb or finger that is

796:21 blocking the light in the ‐‐ in the hand switch.

796:22 BY MS. ELIZABETH:

796:23 Q. And when you say "six reversals," what do

796:24 you mean?796:25 A. Yes. So when they initially respond,

797:01 ‐ 797:25 Kieper, Ronald 2019‐12‐20

797:01 there is one. And then they don't hear it, they lift

797:02 up, that's two. When they hear it again, that would

797:03 be the third. When they don't hear it, that would be

797:04 the fourth reversal, and then again the fifth when

797:05 they press and the sixth when they release.

797:06 Q. Is what you are describing this pure tone

797:07 audiogram, is that recorded on an audiogram card?

797:08 A. Yes, it is.

797:09 Q. Would that be the same audiogram card that

797:10 Plaintiffs' counsel went over with you earlier in your

797:11 testimony?797:12 A. Yes, it's one of the two cards that we

797:13 used in the lab at that time.

797:14 Q. In Exhibit 19, why don't you go to Bates

797:15 MDL 14601.797:16 A. Yes, I have that.

797:17 Q. What is depicted on 14601?

797:18 A. 14601 is the card that we would use when

797:19 giving an audiogram. It ‐‐ at the top it shows the

797:20 test subject's name, where the test is done, who

797:21 administered the test, the date, the certification of

797:22 the person administering the test, and the serial

797:23 number and calibration date of the audiometer.

797:24 Below it shows what we call traces which

797:25 are the ‐‐ what the pen in the audiometer records in

798:01 ‐ 798:25 Kieper, Ronald 2019‐12‐20

798:01 response to the subject in the room pressing and

798:02 releasing the hand switch.

798:03 Q. This audiogram card looks a little bit

798:04 different than the ones we previously looked at that

798:05 were associated with the S3.19 REAT tests.

798:06 Can you tell us what the differences are

798:07 between this pure tone audiogram card and the S3.19

798:08 REAT tests audiogram cards?

798:09 A. Yes. This card documents that the tones,

798:10 the audiometric tones, are presented first in the left

798:11 ear at the frequencies listed below and then in the

798:12 right ear, again, from the frequency ‐‐ at the

798:13 frequencies listed below.

798:14 The card that we used for real‐ear testing

798:15 only has the frequencies, the test frequencies that

798:16 are used in the real‐ear test on the bottom, and it's

798:17 just one instance of ‐‐ of the test frequencies. I

798:18 believe an example of that is on Page 14603.

798:19 Q. I see.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 247 of 30
798:20 So what does 14603 depict?

798:21 A. This depicts a test of a hearing

798:22 protector. The device is an E‐A‐R plug. Again, at

798:23 the top of this card it has the test subject 's name.

798:24 Q. Well, before you go forward, what kind of

798:25 audiogram card is depicted in MDL 14603?

799:01 ‐ 799:23 Kieper, Ronald 2019‐12‐20

799:01 A. This is the kind of card we would use for

799:02 a real‐ear test of a hearing protector.

799:03 Q. Okay.

799:04 A. You can see that there are two sets of

799:05 traces on this. The upper trace is the ‐‐ the test

799:06 subject's response to the test tones with nothing in,

799:07 in this case, his ears. The lower traces are the

799:08 responses of the test subject with the hearing

799:09 protector, in this case the E‐A‐R plug in his ears.

799:10 Q. So going back to our discussion about

799:11 qualifying test subjects for the E‐A‐RCAL Lab test

799:12 panel, after a potential test subject takes the pure

799:13 tone audiogram, how do you determine whether a person

799:14 passes that audiogram?

799:15 A. We compare the ‐‐ the results of the pure

799:16 tone audiogram to the requirements of S3.19.

799:17 Q. Are the requirements of S3.19 set forth in

799:18 your Policies and Procedures Manual?

799:19 A. I believe they ‐‐ I'd have to look at

799:20 that.799:21 Q. Okay.

799:22 A. I believe that's the case, but let me

799:23 look.

800:02 ‐ 800:02 Kieper, Ronald 2019‐12‐20

800:02 MS. ELIZABETH: Exhibit 19 still.

800:13 ‐ 800:21 Kieper, Ronald 2019‐12‐20

800:13 A. Thank you. Re: [800:19 to 800:21]800:14 And, yes, on Page 14582 under Section 6 Pltf Obj 611

800:15 above, to be an S3.19 participant, hearing threshold

800:16 levels must be less than 10 decibels at 25 ‐‐ or 250,

800:17 500 and 1,000 hertz and less than 20 decibels at all

800:18 other test frequencies from 125 hertz to 8,000 hertz.

800:19 Q. So this Section 6 in your Policy and

800:20 Procedures Manual and to your ‐‐ to the best of your

800:21 knowledge is required by the ANSI S3.19 standard?

800:24 ‐ 800:24 Kieper, Ronald 2019‐12‐20

800:24 A. Yes, that's correct. Re: [800:24 to 800:24]

Pltf Obj 611

801:01 ‐ 801:07 Kieper, Ronald 2019‐12‐20

801:01 Q. Would the ‐‐ would all of the test

801:02 subjects that Aearo qualified for its test panels as

801:03 of this time for use in tests under the ANSI S3.19

801:04 standard for REAT label testing, would they have

801:05 hearing levels equal to or better than what is

801:06 described in Section 6 of your Policy and Procedures

801:07 Manual?

801:10 ‐ 801:19 Kieper, Ronald 2019‐12‐20

801:10 A. If they were used for an ANSI 3.19 test, Re: [801:15 to 801:19]

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 248 of 30
801:11 they would have hearing levels that are equal to or Pltf Obj 611; Cumulative

801:12 better than what those threshold levels that are

801:13 listed here.801:14 BY MS. ELIZABETH:

801:15 Q. So for all of the test subjects that Aearo

801:16 used for its ANSI S3.19 REAT tests, they would have

801:17 hearing levels that are equal to or better than the

801:18 threshold levels listed in No. 6 on Bates 14582 of

801:19 Exhibit 19, your Policy and Procedures Manual?

801:22 ‐ 801:22 Kieper, Ronald 2019‐12‐20

801:22 A. That's correct. Re: [801:22 to 801:22]

Pltf Obj 611; Cumulative

801:23 ‐ 802:25 Kieper, Ronald 2019‐12‐20

801:23 BY MS. ELIZABETH:

801:24 Q. If a person passes the pure tone

801:25 audiogram, what did Aearo do next in order to

802:01 determine whether the person would become a permanent

802:02 panel test subject in this timeframe in 1999?

802:03 A. On that same page of our procedures manual

802:04 at the bottom, it ‐‐ there is a section labeled

802:05 Training, and it outlines the procedures that we used

802:06 to train people to be test subjects. So as it's on

802:07 the ‐‐ on Page 14583, it lists the ‐‐ what we would do

802:08 next.802:09 Q. Okay. So we have on the screen here too

802:10 some Bates 14583 of your Policy and Procedures Manual

802:11 under the Training section that you identified.

802:12 Can you please briefly tell the jury how

802:13 you would train a potential test subject to become a

802:14 permanent panel test subject at the E‐A‐RCAL Lab?

802:15 A. Yes.

802:16 The person would come back to the lab on a

802:17 different day and we would start with 1A. The person

802:18 would do six open ear, meaning nothing in their ears,

802:19 sound field audiograms. During that visit they would

802:20 do six consecutive sound field audiograms.

802:21 Q. What is the difference between a pure tone

802:22 audiogram and a sound field audiogram?

802:23 A. The sound field audiogram uses what are

802:24 called third octave bands of noise. Those tones are

802:25 comprised of three frequencies centered around an

803:01 ‐ 803:10 Kieper, Ronald 2019‐12‐20

803:01 octave band center frequency. For example, the

803:02 1,000 hertz third octave test tone contains the

803:03 frequencies 800 hertz, 1,000 hertz and 1250 hertz.

803:04 The other frequencies, test frequencies also have

803:05 three frequencies centered around an octave band

803:06 level.803:07 Q. Why would you have the potential test

803:08 subjects listen to third octave bands in the sound

803:09 field audiogram as opposed to the pure tones in the

803:10 pure sound audiogram?

803:13 ‐ 803:18 Kieper, Ronald 2019‐12‐20

803:13 A. The S ‐‐ the ANSI S3.19 standard requires

803:14 third octave bands of noise to be used as the test

803:15 tones.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 249 of 30
803:16 BY MS. ELIZABETH:

803:17 Q. So continue on explaining how you train

803:18 the subjects?

803:22 ‐ 803:24 Kieper, Ronald 2019‐12‐20

803:22 A. The second visit would be a repeat of the

803:23 first with the potential test subject doing six open

803:24 ear sound field audiograms.

804:01 ‐ 804:02 Kieper, Ronald 2019‐12‐20

804:01 Q. What about the next two visits that the

804:02 test subject has?

804:05 ‐ 804:19 Kieper, Ronald 2019‐12‐20

804:05 A. Section 1B lists two visits, so of three

804:06 REAT, R‐E‐A‐T, measurements per visit using the E‐A‐R

804:07 Model 1,000 earmuff. The way that would happen is on

804:08 the potential subject's third visit to the lab, he or

804:09 she would do three tests, each test composed of an

804:10 open, which the person had done previously, an open

804:11 sound field audiogram, followed by a protected sound

804:12 field audiogram with the Model 1,000 earmuff on the

804:13 person's head.

804:14 BY MS. ELIZABETH:

804:15 Q. Okay. So on the first two visits there

804:16 would be an open ear sound field audiogram and on the

804:17 second two visits there would be a REAT measurement

804:18 of ‐‐ with an earmuff.

804:19 Do I have that right?

804:22 ‐ 805:01 Kieper, Ronald 2019‐12‐20

804:22 A. Yes, with an earmuff.

804:23 BY MS. ELIZABETH:

804:24 Q. Were there any other visits as a part of

804:25 your training process for potential test subjects for

805:01 the E‐A‐RCAL Labs test panel?

805:05 ‐ 805:07 Kieper, Ronald 2019‐12‐20

805:05 A. Yes. Visits five and six would be three

805:06 REAT measurements per visit using the E‐A‐R foam

805:07 earplug as the hearing protection device.

805:09 ‐ 805:23 Kieper, Ronald 2019‐12‐20

805:09 Q. So let me just make sure I have this

805:10 right.805:11 There would be two visits of an open ear

805:12 sound field audiogram, two visits with REAT

805:13 measurements on an earmuff, and two visits with REAT

805:14 measurements with an E‐A‐R foam earplug.

805:15 Do I have that right?

805:16 A. Yes, that's correct.

805:17 Q. Would you have trained the potential test

805:18 subjects on a premolded earplug?

805:19 A. Not at this time.

805:20 Q. Is there anything else that you would do

805:21 in order to determine whether a potential test subject

805:22 could be a part of the permanent test panel for the

805:23 E‐A‐RCAL Lab in the 1999 timeframe?

806:01 ‐ 806:12 Kieper, Ronald 2019‐12‐20

806:01 A. Yes. During ‐‐ as it says in the

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 250 of 30
806:02 manual ‐‐ in our procedures manual under Section 2, on

806:03 visit ‐‐ on the second visit of their open ear sound

806:04 field audiograms, the experimenter would look at the

806:05 range of the person's open ear responses and the value

806:06 that they record would need to be within six decibels.

806:07 BY MS. ELIZABETH:

806:08 Q. Why is that?

806:09 A. To ‐‐ to verify that the subject was

806:10 consistent in responding to the test tones.

806:11 Q. Would you do anything else as a part of

806:12 your train ‐‐ training process?

806:15 ‐ 806:20 Kieper, Ronald 2019‐12‐20

806:15 A. The ‐‐ if the person completes all six

806:16 visits and still wants to be a ‐‐ an E‐A‐RCAL

806:17 listener, we would pay to have them go to an

806:18 otolaryngologist and that doctor would do a complete

806:19 audiological workup with the ‐‐ with a potential test

806:20 subject.

806:24 ‐ 807:04 Kieper, Ronald 2019‐12‐20

806:24 Q. Anything else?

806:25 A. No. After successful completion of all of

807:01 these activities, then the subject would be added to

807:02 our listener panel.

807:03 Q. What was the purpose of this training that

807:04 you just described?

807:07 ‐ 807:17 Kieper, Ronald 2019‐12‐20

807:07 A. It would ‐‐ it would be ‐‐ the main reason

807:08 we trained them is so that they would be comfortable

807:09 and able to do a hearing protector test presumably

807:10 with other types of hearing protectors in addition to

807:11 the earmuff and foam earplug that were used in the

807:12 initial training.807:13 BY MS. ELIZABETH:

807:14 Q. In the 1999 to 2000 time ‐‐ timeframe, how

807:15 would you go about selecting a particular subject on

807:16 your test panel to participate in an ANSI S3.19 REAT

807:17 test?

807:20 ‐ 808:01 Kieper, Ronald 2019‐12‐20

807:20 A. I would use ‐‐ I would randomly call

807:21 people who were qualified test subjects and ask them

807:22 if they were available to come in and do a test.

807:23 BY MS. ELIZABETH:

807:24 Q. Would you call certain people on the test

807:25 panel to test certain hearing protection products in

808:01 the 1999 to 2000 timeframe?

808:04 ‐ 808:07 Kieper, Ronald 2019‐12‐20

808:04 A. No. The ‐‐ the ‐‐ the people that I would

808:05 call would be random. I would ‐‐ I would just call

808:06 anyone on the test panel list who had been qualified

808:07 to the S3.19 standard.

816:20 ‐ 816:22 Kieper, Ronald 2019‐12‐20

816:20 Q. Do you know what information regarding the

816:21 Combat Arms Earplug Version 2 was provided to the

816:22 military by Aearo or 3M?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 251 of 30
816:25 ‐ 817:05 Kieper, Ronald 2019‐12‐20

816:25 A. No.

817:01 BY MS. ELIZABETH:

817:02 Q. Do you know what testing the military

817:03 required Aearo to provide with respect to Combat Arms

817:04 Earplug Version 2?

817:05 A. No.

833:10 ‐ 833:14 Kieper, Ronald 2019‐12‐20

833:10 BY MS. ELIZABETH:

833:11 Q. From your perspective, was there anything

833:12 unusual about the decision to stop the 213015 test

833:13 after eight subjects?

833:14 A. No.

833:15 ‐ 833:15 Kieper, Ronald 2019‐12‐20

833:15 Q. Why not?

833:17 ‐ 833:23 Kieper, Ronald 2019‐12‐20

833:17 BY THE WITNESS:

833:18 A. Well, in the first place, it's not my

833:19 decision. It would be Mr. Berger's decision on

833:20 starting or stopping a test, and so I ‐‐ I was out of

833:21 the loop, so to speak. What I did was test the

833:22 hearing protectors and Mr. Berger dictated my

833:23 activities.

834:08 ‐ 834:10 Kieper, Ronald 2019‐12‐20

834:08 BY MS. ELIZABETH: Re: [834:08 to 834:10]834:09 Q. In your view, were you permitted to stop Pltf Obj Lack of Foundation

834:10 labeling tests under the ANSI S3.19 standard?

834:13 ‐ 834:15 Kieper, Ronald 2019‐12‐20

834:13 A. I ‐‐ I don't know why ‐‐ I don't know of Re: [834:13 to 834:15]834:14 any reason dictated in the ANSI standard that would Pltf Obj Lack of Foundation

834:15 prevent someone from stopping a test.

834:24 ‐ 835:01 Kieper, Ronald 2019‐12‐20

834:24 Q. While working for the E‐A‐RCAL Lab, did Re: [834:24 to 835:01]834:25 you ever stop a test for the purpose of "tricking the Pltf Obj Misstates;

835:01 system" as Plaintiffs' counsel suggested? argumentative; lacks

foundation

835:05 ‐ 835:05 Kieper, Ronald 2019‐12‐20

835:05 A. No, I did not. Re: [835:05 to 835:05]

Pltf Obj Misstates;argumentative; lacksfoundation

835:07 ‐ 835:10 Kieper, Ronald 2019‐12‐20

835:07 Q. While working for the E‐A‐RCAL Lab, did Re: [835:07 to 835:10]835:08 you ever try to boost the NRR for the CAE v2 in order Pltf Obj Misstates;

835:09 to help the company sell more plugs? argumentative; lacks

835:10 A. No, I did not. foundation

836:02 ‐ 836:22 Kieper, Ronald 2019‐12‐20

836:02 Q. Would it have been your job responsibility

836:03 to not only do ANSI S3.19 tests, REAT tests, but other

836:04 tests in the E‐A‐RCAL Lab?

836:05 A. Yes.

836:06 Q. What are those?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 252 of 30
836:07 A. Well, I would do research testing of the

836:08 hearing protectors on people, I would also do

836:09 measurements on our ATFs, acoustic test fixtures,

836:10 and ‐‐ let's see. Those are the primary testing

836:11 procedures that I would do.

836:12 Q. Would you ever person ‐‐ purposefully

836:13 conduct research tests with less than ten subjects?

836:14 A. Yes.

836:15 Q. Why?

836:16 A. It would depend on the device and where we

836:17 were in its development. We would ‐‐ when a new

836:18 product was available or when we were developing a new

836:19 product, we would often test three, four, five people

836:20 of various ear canal sizes to ‐‐ so that we could

836:21 estimate how the plug is fitting and working on

836:22 these ‐‐ on these small groups of people.

837:03 ‐ 837:08 Kieper, Ronald 2019‐12‐20

837:03 Q. The Court Reporter has just handed you a

837:04 document that's been marked Exhibit 85.837:05 Do you have that?

837:06 A. Yes, I have that.

837:07 Q. Do you recognize this document?

837:08 A. Yes.

837:09 ‐ 837:14 Kieper, Ronald 2019‐12‐20

837:09 Q. What is it?

837:10 A. It is the labeling test report for the

837:11 yellow end of the Combat Arms Earplug.

837:12 Q. And is that a test that you would have

837:13 conducted?837:14 A. Yes, it is.

838:01 ‐ 838:15 Kieper, Ronald 2019‐12‐20

838:01 Do you see that?

838:02 A. Yes.

838:03 Q. What does that mean?

838:04 A. As I stated earlier, when a person comes

838:05 in to apply to be a test subject, one of the

838:06 measurements that I would make would be to size each

838:07 ear canal, and we would ‐‐ I would do that with a,

838:08 what we call a sizing tool. It's a plastic device

838:09 with five different diameter spheres, and those

838:10 different size spheres would be used to characterize a

838:11 person's ear canal size from extra small to extra

838:12 large.838:13 Q. And I see you have a wide variety of ear

838:14 canal sizes here.

838:15 Was that on purpose?

838:21 ‐ 838:24 Kieper, Ronald 2019‐12‐20

838:21 A. In our procedures manual there is a ‐‐ a

838:22 section of it that says something to the effect of we

838:23 want to have a balance of ear canal sizes in a test as

838:24 much as we can, as much as ‐‐ as much as is possible.

839:01 ‐ 839:02 Kieper, Ronald 2019‐12‐20

839:01 Q. Why would you want to have a balance of

839:02 ear canal sizes?

839:06 ‐ 839:14 Kieper, Ronald 2019‐12‐20

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 253 of 30
839:06 A. ‐‐ that would ‐‐ it would show how the Re: [839:11 to 839:14]

839:07 particular hearing protector how well it would fit or Pltf Obj Lack of Foundation;

839:08 how well it would work, how much protection a person vague

839:09 would get with a variety of ear canals.

839:10 BY MS. ELIZABETH:

839:11 Q. Based on the data set forth in test

839:12 213016, do you have any reason to believe that there

839:13 was an issue with the product or the testing on the

839:14 213016 test?

839:17 ‐ 839:20 Kieper, Ronald 2019‐12‐20

839:17 A. No, I don't. Re: [839:17 to 839:17]839:18 BY MS. ELIZABETH: Pltf Obj Lack of Foundation;

839:19 Q. I want to direct your attention back to vague

839:20 Exhibit 83 in your stack, which is the 213017 test.

839:25 ‐ 840:02 Kieper, Ronald 2019‐12‐20

839:25 Q. Do you have any specific recollection of

840:01 conducting the 213017 test?

840:02 A. No.

840:03 ‐ 840:05 Kieper, Ronald 2019‐12‐20

840:03 Q. But you do understand that you did conduct

840:04 it after ‐‐ I heard that in your testimony today, is

840:05 that right?

840:08 ‐ 840:13 Kieper, Ronald 2019‐12‐20

840:08 A. Yes.

840:09 BY MS. ELIZABETH:

840:10 Q. And what side of the plug were you testing

840:11 in 213017?840:12 A. I tested the green end of the Combat Arms

840:13 Earplug in this test.

841:05 ‐ 841:07 Kieper, Ronald 2019‐12‐20

841:05 Q. What would have been your process in

841:06 getting the test subjects for 213017 ‐‐ for the 213017

841:07 test in the 2000 timeframe?

841:10 ‐ 841:12 Kieper, Ronald 2019‐12‐20

841:10 A. I would randomly call people on our test

841:11 subject panel.841:12 BY MS. ELIZABETH:

843:01 ‐ 843:05 Kieper, Ronald 2019‐12‐20

843:01 BY MS. ELIZABETH:

843:02 Q. I want to direct your attention to the

843:03 same exhibit but Bates MDL 195524 which is the back

843:04 page of Exhibit 83, test 213017.

843:05 A. Yes.

844:01 ‐ 844:10 Kieper, Ronald 2019‐12‐20

844:01 Q. And are these your handwritten notes on

844:02 the back page of test 213017?

844:03 A. That looks like my writing, yes.

844:04 Q. Okay. Looking at your notes, on how many

844:05 subjects did you note that the flanges were folded

844:06 outward to allow deeper insertion?

844:07 A. One subject, Mr. DLP.

844:08 Q. Sitting here today, do you have a

844:09 recollection of folding back the flanges in the 213017

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 254 of 30
844:10 test for more than one subject?

844:13 ‐ 844:20 Kieper, Ronald 2019‐12‐20

844:13 A. I don't have that recollection. Re: [844:15 to 844:20]844:14 BY MS. ELIZABETH: Pltf Obj Lack of Foundation;

844:15 Q. Mr. Kieper, whether you rolled back the 611

844:16 flanges for just DLP or all of the subjects in test

844:17 213017 or just some of the test subjects on test

844:18 213017, do you believe that it is necessary to roll

844:19 back the flanges on the Combat Arms Earplug Version 2

844:20 for the product to work?

844:23 ‐ 845:02 Kieper, Ronald 2019‐12‐20

844:23 A. No, I do not. Re: [844:23 to 844:23]844:24 BY MS. ELIZABETH: Pltf Obj Lack of Foundation;

844:25 Q. Do you believe that it is necessary to 611

845:01 fold back the flanges on the Combat Arms Earplug

845:02 Version 2 to achieve a proper fit? Re: [844:25 to 845:02]

Pltf Obj Lack of Foundation

845:05 ‐ 845:07 Kieper, Ronald 2019‐12‐20

845:05 A. No, not in every case. Re: [845:05 to 845:05]845:06 BY MS. ELIZABETH: Pltf Obj Lack of Foundation

845:07 Q. Why not?

Re: [845:07 to 845:07]

Pltf Obj Lack of Foundation

845:10 ‐ 845:22 Kieper, Ronald 2019‐12‐20

845:10 A. Because each person's ears are unique, Re: [845:10 to 845:22]845:11 individual, and in some cases the ‐‐ the shape and Pltf Obj 611; Cumulative

845:12 size of the ears and ear canals do not inhibit a

845:13 well‐inserted Combat Arms Earplug, and in some people

845:14 the ear formation can interfere with fit, getting a

845:15 best fit of the earplug.

845:16 BY MS. ELIZABETH:

845:17 Q. So let me make sure I understand.

845:18 So is it your testimony that you do not

845:19 believe that it is necessary ‐‐ necessary to fold back

845:20 the flanges on the Combat Arms Earplug Version 2 to

845:21 achieve a proper fit because each person's ears are

845:22 unique?

845:25 ‐ 846:02 Kieper, Ronald 2019‐12‐20

845:25 A. Yes, I think that's a valid statement. Re: [845:25 to 845:25]846:01 BY MS. ELIZABETH: Pltf Obj 611; Cumulative

846:02 Q. Can you explain that?

Re: [846:02 to 846:02]

Pltf Obj Cumulative

846:05 ‐ 846:10 Kieper, Ronald 2019‐12‐20

846:05 A. Because in some people, but not all, the Re: [846:05 to 846:10]846:06 shape of the ear canal either can interfere with ‐‐ Pltf Obj Cumulative

846:07 the plug will bump into the person's ear and that

846:08 would prevent achieving a best fit and in other

846:09 people's ears folding back the flanges is not

846:10 necessary to achieve a best fit.

848:11 ‐ 848:13 Kieper, Ronald 2019‐12‐20

848:11 Q. Mr. Kieper, do you believe that the Combat Re: [848:11 to 848:13]848:12 Arms Earplug Version 2 is too short for proper Pltf Obj 702; Misstates

848:13 insertion?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 255 of 30
848:16 ‐ 849:04 Kieper, Ronald 2019‐12‐20

848:16 A. No, I don't. Re: [848:16 to 848:24]848:17 BY MS. ELIZABETH: Pltf Obj Lack of Foundation;

848:18 Q. Why not? 702

848:19 A. Because it ‐‐ it will fit some people and

848:20 it may not fit other people, just like other hearing

848:21 protectors. The ‐‐ the type of hearing protector and

848:22 the person's experience fitting hearing protectors and

848:23 a number of other factors contribute to how well a

848:24 hearing protector can be fit.848:25 Q. I want you to refer back to Exhibit 16

849:01 which is the flange memo, and I want you to look at

849:02 the section that's entitled "Test Procedure."849:03 Do you see that?

849:04 A. Yes.

849:15 ‐ 849:18 Kieper, Ronald 2019‐12‐20

849:15 Q. Based on your experience in the E‐A‐RCAL Re: [849:15 to 849:18]849:16 Lab and the testing chamber used for REAT testing, do Pltf Obj Lack of Foundation;

849:17 you have an understanding of how an imperceptible 702

849:18 loosening of a plug can occur in a test chamber?

849:22 ‐ 850:09 Kieper, Ronald 2019‐12‐20

849:22 A. Yes, from ‐‐ from my experience in the Re: [849:22 to 849:25]849:23 test chamber the sound levels in that room are well Pltf Obj Lack of Foundation;

849:24 below people's threshold of hearing. It is 702

849:25 characterized as a soundproof room. In outside of the

850:01 test chamber there are noises. For example, in this

850:02 room, we might hear people typing or the HVAC system

850:03 or any number of other noises that would signal to me

850:04 or a person wearing a plug they would have some ‐‐

850:05 some noise to ‐‐ if the plug loosened they would hear

850:06 an increase in the noise level of the noises around

850:07 them, and that cannot occur in the E‐A‐RCAL test

850:08 chamber because the noise levels are so low and below

850:09 the people's threshold of hearing.

850:12 ‐ 850:17 Kieper, Ronald 2019‐12‐20

850:12 Q. You described in your previous testimony

850:13 that before an ANSI S3.19 REAT test can begin, the

850:14 subject has to sit in this test chamber that you've

850:15 described as a soundproof room.

850:16 Do you remember that testimony?

850:17 A. Yes.

850:20 ‐ 851:06 Kieper, Ronald 2019‐12‐20

850:20 You said something about the room being

850:21 dark. Can you explain that?

850:22 A. The ‐‐ the room has night lights just for

850:23 some illumination. During the testing the overhead

850:24 lights are turned off because there is a possibility

850:25 of elect ‐‐ electrical hum noise being created and

851:01 that could interfere with a person's open ear

851:02 measurements. So because not only the lights are

851:03 turned off and there is no noise created by that, but,

851:04 again, the low levels of sound in the test chamber,

851:05 people don't hear things. You know, they have ‐‐ they

851:06 hear nothing. It's very quiet.

851:13 ‐ 851:16 Kieper, Ronald 2019‐12‐20

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 256 of 30
851:13 Do you think it's more likely for someone Re: [851:13 to 851:17]

851:14 in the test chamber to experience an imperceptible Pltf Obj Lack of Foundation;

851:15 loosening of an earplug than for someone who is in the 702; 602

851:16 real world wearing an earplug?

851:19 ‐ 851:22 Kieper, Ronald 2019‐12‐20

851:19 A. Yes, I would ‐‐ I would think that would Re: [851:19 to 851:20]851:20 be the case. Pltf Obj Lack of Foundation;

851:21 BY MS. ELIZABETH: 702; 602

851:22 Q. And why is that?

Re: [851:22 to 851:22]

Pltf Obj Lack of Foundation;

702; 602

851:25 ‐ 852:13 Kieper, Ronald 2019‐12‐20

851:25 A. Again, because in the real world or Re: [851:25 to 852:06]852:01 outside a soundproof test chamber, there is what we Pltf Obj Lack of Foundation;

852:02 call ambient noise or noises that are just inherent in 702; 602

852:03 the environment, and those noises can be a cue to the

852:04 hearing protector wearer if the fit of the hearing

852:05 protection device changes. They would perceive the

852:06 noise levels around them to increase.

852:07 BY MS. ELIZABETH:

852:08 Q. Okay. Let's go ‐‐ one more question,

852:09 Mr. Kieper.

852:10 Is what you described which said the real

852:11 world outside of a soundproof test chamber with

852:12 ambient noises different than what you would expect in

852:13 a test chamber at the E‐A‐RCAL Lab?

852:17 ‐ 852:19 Kieper, Ronald 2019‐12‐20

852:17 A. I would expect the ambient levels outside

852:18 the test chamber to be higher than inside the test

852:19 chamber.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 257 of 30
Pltf Objections 3M Objections Rulings

10:08 - 10:13 Leccese, Melissa 2020-10-06

10:08 Q. My name is Adam Wolfson. I'm from

10:09 a law firm called Quinn Emanuel, and I

10:10 represent the Plaintiffs in this matter. So as

10:11 we start today, can you please state your full

10:12 name for the record?

10:13 A. Sure. Melissa Leccese.

13:17 - 14:06 Leccese, Melissa 2020-10-06

13:17 Q. Okay. Great. Well, let's get

13:18 started. So Dr. Leccese, can you give me a

13:19 brief history of your time in the military?

13:20 A. Well, I started as an audiologist.

13:21 And my first duty station was Fort Polk. I was

13:22 there for four years. And then I went to Korea

13:23 for a year. From -- from Korea I went to

13:24 Fort Wainwright, Alaska. And I was there for

13:25 three and a half years. Then to Fort Campbell,

14:01 and I was there -- as the hearing program

14:02 manager, I was there for four years. And then

14:03 I did long-term health education training for

14:04 two years and I stayed there. But I wasn't

14:05 working as an audiologist at that time. And

14:06 from there I went --

14:08 - 14:24 Leccese, Melissa 2020-10-06

14:08 A. -- to Aberdeen Proving Grounds to

14:09 Public Health Command which turned into

14:10 Public Health Command while I was there. And

14:11 then to Fort Knox as the hearing program

14:12 manager at Fort Knox for my last two years

14:13 before I retired.

14:14 Q. So when did you -- thank you for

14:15 that. So when did you first get stationed at

14:16 Fort Campbell?

14:17 A. Well, I got to Fort Campbell in --

14:18 I was there 2006 to 2010 in the clinic.

14:19 Q. And you said at that time what was

14:20 your official title there?

14:21 A. So audiologists have two titles.

14:22 We are chief of the clinic, chief of the

14:23 audiology clinic, and also the hearing program

14:24 manager for the installation.

15:03 - 15:05 Leccese, Melissa 2020-10-06

15:03 Q. And is it correct that you were

15:04 head of the hearing program at Fort Campbell

15:05 while you were stationed there?

15:08 - 16:12 Leccese, Melissa 2020-10-06

15:08 A. Yes.

15:09 Q. Yes. Okay. And what did that --

15:10 what did that entail, being the head of the

15:11 hearing program at Fort Campbell?

15:12 A. So my main goal was to prevent

15:13 hearing loss. That's our main mission as

15:14 hearing conservation managers, to prevent

15:15 hearing loss in the soldiers. So we do that by

15:16 providing health education. We do that during

15:17 in-processing. And also annually it's a

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 258 of 305
15:18 requirement. Also they get annual health

15:19 education. It was also my job to provide

15:20 annual hearing tests because that is also a

15:21 requirement for every soldier, to get an annual

15:22 hearing screening. So that was my job to

15:23 ensure that that happened.

15:24 And of course hearing protection is part of

15:25 hearing conservation, so my clinic would fit

16:01 hearing protection and train soldiers in the

16:02 units to go into the units and fit hearing

16:03 protection.

16:04 Q. I see. And so you said -- and for

16:05 an audiologist, how did those duties differ

16:06 from your roles with respect to the hearing

16:07 program?

16:08 A. So as the audiologist my job was

16:09 to diagnose any hearing loss that was present.

16:10 And if there was a hearing loss, then I would

16:11 treat the hearing loss, which typically was to

16:12 fit hearing aids.

18:02 - 18:17 Leccese, Melissa 2020-10-06

18:02 Q. Yes. Okay. Thank you, Doctor.

18:03 Now, you said for part of the hearing program,

18:04 education included the in-process. Is that

18:05 right?

18:06 A. So during in-processing every

18:07 soldier would come to our clinic and my

18:08 technician would provide a briefing in hearing

18:09 protection. We would give them hearing

18:10 protection and show them how to -- to put them

18:11 in correctly.

18:12 Q. Okay. So this is when new

18:13 recruits are coming or newly stationed recruits

18:14 are coming to Fort Campbell and they are first

18:15 being in-processed, meaning they're actually

18:16 being brought into the base?

18:17 A. Correct.

19:01 - 20:06 Leccese, Melissa 2020-10-06

19:01 Q. And at these -- at these Re: [19:06 to 20:06]

19:02 in-process presentations, at that point was Pltf Obj 402 and 403

19:03 that when you distributed hearing protection

19:04 devices to -- to soldiers?

19:05 A. Yes.

19:06 Q. Now, were there -- were there any

19:07 particular hearing protection devices that were

19:08 standard -- you know, standard issue when

19:09 soldiers were in-processed at Fort Campbell at

19:10 the time that you were there?

19:11 A. Yes.

19:12 Q. And were -- what were they?

19:13 A. They were pre-fitted -- preformed.

19:14 The -- the triple-flange, I believe at that

19:15 time. Yes, because the quad-flange were not

19:16 being used. So there was a triple-flange. It

19:17 would have had to have been the triple-flanged

19:18 hearing protection preformed earplugs.

19:19 Q. Triple-flanged preformed earplugs.

19:20 Is that what you said?

19:21 A. Yes.

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 259 of 305
19:22 Q. Now, was this a single-end or was

19:23 it a double-end triple-flanged earplug?

19:24 A. It was three. There were three

19:25 flanges to it.

20:01 Q. Okay. And was this the -- like a

20:02 single-end earplug?

20:03 A. It was a single-end earplug, yes.

20:04 Q. Okay. So that -- that was the

20:05 standard issue as soldiers came in?

20:06 A. Correct.

20:20 - 20:23 Leccese, Melissa 2020-10-06

20:20 Q. Now, were -- were the double-ended Re: [20:21 to 21:09]

20:21 earplugs, the Combat Arms earplugs, ever Pltf Obj 402 and 403

20:22 standard issue when soldiers were being

20:23 in-processed at Fort Campbell?

20:25 - 21:05 Leccese, Melissa 2020-10-06

20:25 A. No. Re: [20:21 to 21:09]

21:01 Q. No, they were not? Pltf Obj 402 and 403

21:02 A. No.

21:03 Q. Okay. So are you nevertheless

21:04 familiar with them based on your time at

21:05 Fort Campbell?

21:07 - 22:11 Leccese, Melissa 2020-10-06

21:07 A. Yeah, I'm sure they were out by Re: [20:21 to 21:09]

21:08 then. I'm sure I was familiar with them at Pltf Obj 402 and 403

21:09 that point.

21:10 Q. And had you -- do you recall at

21:11 Fort Campbell ever instructing soldiers in the

21:12 use of the double-ended triple-flanged

21:13 earplugs?

21:14 A. So if we had them, I'm sure that I

21:15 was fitting them. But I was fitting them in my

21:16 clinic specifically for soldiers that probably

21:17 had H3 profiles or that had hearing loss,

21:18 ones -- because they were more expensive. So

21:19 they didn't hand them out to everyone as

21:20 standard issue.

21:21 Q. I see.

21:22 A. At my clinic we didn't.

21:23 Q. But do you -- I'm sorry?

21:24 A. At my clinic we didn't hand them

21:25 out to everybody.

22:01 Q. I see. Do you -- do you recall

22:02 though handing them out to anyone while at

22:03 Fort Campbell?

22:04 A. Not specifically, I don't recall

22:05 anything but --

22:06 Q. But do you recall -- I see. Do

22:07 you -- did you ever provide instructions, to

22:08 the best of your recollection, to anyone at

22:09 Fort Campbell about the use -- about how to

22:10 insert the double-ended triple-flanged

22:11 earplugs?

22:13 - 23:01 Leccese, Melissa 2020-10-06

22:13 A. So with briefings, that was part

22:14 of my briefing to explain how to use the

22:15 Combat Arms earplugs.

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22:16 Q. I see.

22:17 A. I did it in the health education

22:18 briefing for sure. And then if I had someone

22:19 that I fitted individually with it, I would

22:20 have explained it to them.

22:21 Q. I see. I see. And when you -- so

22:22 I know this is going back. But do you recall

22:23 how you instructed -- were there any particular

22:24 instructions that you provided with respect to

22:25 how to insert the Combat Arms double-ended

23:01 earplugs?

23:03 - 24:03 Leccese, Melissa 2020-10-06

23:03 A. Yes. Absolutely.

23:04 Q. Okay. And how do you recall that?

23:05 Or what do you recall about that?

23:06 A. So I would make sure it fit them

23:07 first, that it was the right size, that it was

23:08 a correct fit. And then I would require that

23:09 they fit it on themselves. And I would check

23:10 it to make sure that they put it in correctly

23:11 and that it fit them.

23:12 Q. Uh-huh.

23:13 A. And then I would explain the

23:14 different ends, which way to use it. When you

23:15 use it with the green side out, sticking out,

23:16 then that was your -- your tactical mode where

23:17 you could hear -- you could hear speech and

23:18 conversation and softer sounds. But it damped

23:19 the noise, filtered out the noise. But then if

23:20 you flip it around and you wear it with the

23:21 yellow side sticking out, you're obviously not

23:22 camouflage at that point. So you're not going

23:23 to want to be in any kind of tactical situation

23:24 with that yellow end sticking out. And that

23:25 would be like wearing a traditional earplug

24:01 like you're sitting in a vehicle or you're in a

24:02 plane or something like that. It's for

24:03 steady-state noise.

25:13 - 26:03 Leccese, Melissa 2020-10-06

25:13 Q. All right. So then the next step

25:14 for how you instructed soldiers was to instruct

25:15 them about the differences between the two ends

25:16 of the earplugs. Is that fair?

25:17 A. Correct.

25:18 Q. Okay. And explaining to them that

25:19 the yellow side allowed low -- low noise but

25:20 protected from loud impulse noises whereas the

25:21 green side was more of a standard filtering out

25:22 all noise style of plug. Is that fair?

25:23 A. Well, it depends on what you mean.

25:24 Like the green side inserted into the ear?

25:25 Q. Yes.

26:01 A. So the green side inserted into

26:02 the ear would be like a traditional standard

26:03 earplug.

28:14 - 28:20 Leccese, Melissa 2020-10-06

28:14 Q. All right. Now, Dr. Leccese --

28:15 well, I'm sorry.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 261 of 305
28:16 MR. WOLFSON: For the record what

28:17 has been issued here -- I'm not sure what

28:18 exhibit number this is.

28:19 MS. INT-HOUT: It will be marked

28:20 as Exhibit 1.

29:19 - 30:04 Leccese, Melissa 2020-10-06

29:19 Q. I'm sorry. This is the what?

29:20 A. It's a Fort Campbell regulation.

29:21 Q. Fort Campbell. Okay. So this is

29:22 specific to your time at Fort Campbell.

29:23 Correct?

29:24 A. So the date is 31 January 2008.

29:25 So this would have been the one that I was very

30:01 responsible for putting out there.

30:02 Q. I see. So did you help draft

30:03 these -- this document?

30:04 A. Yes.

31:14 - 32:15 Leccese, Melissa 2020-10-06

31:14 Q. Now, when you say that hearing

31:15 loss degrades combat readiness and

31:16 effectiveness, it's fair to say that ingraining

31:17 a culture of hearing protection was one of the

31:18 goals -- one of your goals, at least as the

31:19 head of the hearing program, at Fort Campbell?

31:20 A. Absolutely.

31:21 Q. And part of that was explaining to

31:22 soldiers whether they were new recruits or had

31:23 been stationed at the base for a while that the

31:24 use of hearing protection devices is not only

31:25 recommended but in many cases mandatory?

32:01 A. Yes. In noise it was always

32:02 mandatory.

32:03 Q. Okay.

32:04 A. In hazardous it was always

32:05 mandatory.

32:06 Q. I see. So steady loud noise. Is

32:07 that what -- is that what you meant?

32:08 A. Well, it depends on the type of

32:09 noise. I mean, if it's steady-state noise,

32:10 there's a standard for the level of noise

32:11 that -- that identifies that as required for

32:12 hearing protection. Then you have a different

32:13 standard for impulse noise and what's required

32:14 to wear hearing protection for a certain level

32:15 if it's an impulse noise.

33:14 - 33:18 Leccese, Melissa 2020-10-06

33:14 When you were the head of the hearing Re: [33:14 to 34:03]

33:15 program at Fort Campbell, was it your Pltf Obj 402 and 403

33:16 experience that the majority of soldiers did,

33:17 in fact, comply with the hearing program's

33:18 requirements?

33:20 - 34:03 Leccese, Melissa 2020-10-06

33:20 A. So I didn't have a good pulse on Re: [33:14 to 34:03]

33:21 that because I was in the clinic most of the Pltf Obj 402 and 403

33:22 time. I was the only audiologist that was

33:23 there. And there are a lot of soldiers there.

33:24 So I didn't have the ability to go out into the

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33:25 units and do any kind of inspections and see if

34:01 things were happening. So I would have very

34:02 little knowledge regarding -- regarding --

34:03 personal knowledge regarding that.

34:04 - 34:09 Leccese, Melissa 2020-10-06

34:04 Q. I see. Was it your experience, Re: [34:04 to 34:17]

34:05 however, that those stationed on base more Def Obj Vague (611, 403);

34:06 often than not complied with the regulations Foundation (602)

34:07 that the base put forward?

34:08 A. Yes. More often than not, they

34:09 complied.

34:12 - 34:15 Leccese, Melissa 2020-10-06

34:12 Q. Okay. Would it -- was your Re: [34:04 to 34:17]

34:13 experience that the vast majority of the time Def Obj Vague (611, 403);

34:14 those on base complied with the regulations Foundation (602)

34:15 that the base required?

34:17 - 34:17 Leccese, Melissa 2020-10-06

34:17 A. Yes. Re: [34:04 to 34:17]

Def Obj Vague (611, 403);

Foundation (602)

35:24 - 36:01 Leccese, Melissa 2020-10-06

35:24 MR. WOLFSON: So let's see. If we

35:25 could go down to Appendix E, that's page 24 of

36:01 the document.

36:02 - 36:04 Leccese, Melissa 2020-10-06

36:02 Q. All right. Now, Dr. Leccese, do

36:03 you -- do you recognize this appendix?

36:04 A. Yes.

36:11 - 36:18 Leccese, Melissa 2020-10-06

36:11 Q. Got it. I see. So in the

36:12 standard items -- well, is it correct that

36:13 Appendix E is -- it's a group of charts of

36:14 potential hearing protection devices that

36:15 soldiers on base could use?

36:16 A. So those -- that is a list of

36:17 items that could be ordered through the Army

36:18 system.

37:11 - 37:25 Leccese, Melissa 2020-10-06

37:11 Q. I see. Okay. But then -- then

37:12 down in the optional section it mentions the --

37:13 the Combat Arms earplugs. Do you see that?

37:14 A. Yes.

37:15 Q. Okay. So for the -- for the

37:16 double-ended, I just wanted to note there, see

37:17 in that second column it says Combat Arms

37:18 earplugs double-ended, 100 each per package, so

37:19 50 pair. And then it says required use of

37:20 instructions sheet. Do you see that?

37:21 A. Uh-huh. Yes.

37:22 Q. Yeah. So anyone ordering the

37:23 Combat Arms earplugs, there was supposed to be

37:24 a user instruction sheet even with the 100

37:25 pack. Correct?

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38:02 - 38:19 Leccese, Melissa 2020-10-06

38:02 A. So I don't recall if the earplugs

38:03 came with the instruction sheet. My

38:04 recollection is I got the instruction sheet

38:05 from Public Health Command, that they sent them

38:06 to us.

38:07 Q. Uh-huh.

38:08 A. And that was where I handed them

38:09 out. I handed -- I gave out the instruction

38:10 sheet. It was a card, like a little card.

38:11 Q. Okay.

38:12 A. I remember the instruction card.

38:13 When I gave out or when I fitted Combat Arms

38:14 earplugs, I would also give the card.

38:15 Q. All right. And it was -- so your

38:16 recollection is you received -- do you recall

38:17 how big the card was?

38:18 A. Like a -- like a business card

38:19 size.

39:03 - 39:11 Leccese, Melissa 2020-10-06

39:03 Q. Right. So -- sorry. Let me

39:04 rephrase. So you would -- you would receive a

39:05 package of Combat Arms double-ended earplugs.

39:06 And when handing out a pair of those or

39:07 multiple pairs of those to a soldier, is it

39:08 correct that you would then also give them that

39:09 business card sized instruction sheet that you

39:10 had received separately?

39:11 A. Yes. That's correct.

39:14 - 39:24 Leccese, Melissa 2020-10-06

39:14 Q. And do you know who developed and,

39:15 you know, drafted the content of that business

39:16 sized card that you gave soldiers?

39:17 A. At the time it was Public Health

39:18 Command, which is currently now Public Health

39:19 Center.

39:20 Q. I see. And so but your -- your

39:21 understanding though, the instructions included

39:22 on those -- those business sized cards were the

39:23 proper way to insert and use the Combat Arms

39:24 earplugs. Is that fair?

40:01 - 40:01 Leccese, Melissa 2020-10-06

40:01 A. Yes. That's correct.

43:25 - 44:03 Leccese, Melissa 2020-10-06

43:25 Q. Okay. So again, here, for

44:01 example, do you recognize this document, the

44:02 one that just came up on screen?

44:03 A. Yes, I do.

44:11 - 44:25 Leccese, Melissa 2020-10-06

44:11 Q. Okay. Fair enough. But this is

44:12 something you used to educate soldiers?

44:13 A. Absolutely.

44:14 Q. Okay. So if we could go to the

44:15 next page. And for the record, this is

44:16 Exhibit 2, Leccese Exhibit 2. So here on the

44:17 second page of this document is a visible

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 264 of 305
44:18 representation of good fit and bad fit for a

44:19 single-ended triple-flanged earplug. Correct?

44:20 A. That's correct.

44:21 Q. Okay. So you were trying to show

44:22 through these pictures when soldiers were, you

44:23 know, being educated by you during these

44:24 presentations how they could tell if an earplug

44:25 had been properly inserted. Right?

45:02 - 45:16 Leccese, Melissa 2020-10-06

45:02 A. That is correct.

45:03 Q. And in picture number one there,

45:04 it says -- it says that's an example of good

45:05 fit. Right?

45:06 A. Yes.

45:07 Q. And it says there that the last

45:08 flange is sealed against the ear canal. Right?

45:09 A. Yes.

45:10 Q. Okay. So is it correct that for

45:11 both the single-ended plugs and the

45:12 double-ended plugs that you instructed soldiers

45:13 how to use, what you tried to get them to do is

45:14 to make sure that that last flange -- the last

45:15 and the third flange was sealed against the ear

45:16 canal. Right?

45:18 - 46:19 Leccese, Melissa 2020-10-06

45:18 A. So the design of the double-ended

45:19 was very different than this one.

45:20 Q. Right.

45:21 A. So in order to help the soldier

45:22 get a good seal with the double-ended, I taught

45:23 them the tug test.

45:24 Q. Okay. And what's the tug test?

45:25 A. The tug test is where you take a

46:01 hold of the end of the earplug and you do a

46:02 little tug to see if it's sealed in the ear.

46:03 If it just pulls out of the ear, it's not in --

46:04 it's not sealed.

46:05 Q. Uh-huh. Okay.

46:06 A. The other thing I taught them was

46:07 the -- I don't know what I called it. But I

46:08 would have them talk, say something out loud,

46:09 and if it sounded like their voice was in a

46:10 barrel, like their voice was inside their head,

46:11 then that is another way to tell that the

46:12 earplug is sealed well. If it just sounds like

46:13 they're talking with nothing in their ear, then

46:14 it's not sealed.

46:15 Q. Understood. So this -- these were

46:16 tests that you taught soldiers to perform on

46:17 themselves at the time that they inserted the

46:18 double-ended plug into their ear. Is that

46:19 fair?

46:23 - 46:23 Leccese, Melissa 2020-10-06

46:23 A. Yes.

46:24 - 47:03 Leccese, Melissa 2020-10-06

46:24 Q. Okay. Now, did you ever receive

46:25 any information, however, about the continuing

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 265 of 305
47:01 seal for the double-ended plugs and whether and

47:02 how often to test for seal as the user

47:03 continued to wear them?

47:05 - 47:05 Leccese, Melissa 2020-10-06

47:05 A. No.

47:06 - 48:12 Leccese, Melissa 2020-10-06

47:06 Q. All right. Now, another question

47:07 is on instructing soldiers how to get a -- how

47:08 to use the earplugs, I believe you said that

47:09 you gave them -- that you educated them when

47:10 they were in-processed at Fort Campbell. Is

47:11 that right?

47:12 A. Correct. But the technician did

47:13 that.

47:14 Q. Okay. Now -- and then I believe

47:15 you also said there was annual education at the

47:16 base as well. Is that right?

47:17 A. Correct. Yes. That was the

47:18 responsibility of the unit to complete.

47:19 Q. Okay. During that annual

47:20 education, was -- were there instructions again

47:21 on how to insert or -- and seal earplugs?

47:22 A. There should have been.

47:23 Q. So that -- the policy that you set

47:24 forth and had in place at Fort Campbell was

47:25 education when a soldier first came to base on

48:01 how to use earplugs and then annual education

48:02 as well just reminding them how to insert and

48:03 get a seal for earplugs?

48:04 A. Correct. And also a refitting of

48:05 earplugs at that time.

48:06 Q. And -- and what do you -- what do

48:07 you mean by that?

48:08 A. That they just need to have their

48:09 earplugs refitted, like make sure they have

48:10 earplugs and make sure they have the right size

48:11 and make sure it's fitted. And again, the unit

48:12 was responsible.

48:17 - 48:20 Leccese, Melissa 2020-10-06

48:17 Q. When a soldier had very large ear

48:18 canals, were there any special procedures that

48:19 Fort Campbell used for that soldier with

48:20 respect to hearing protection devices?

48:22 - 49:08 Leccese, Melissa 2020-10-06

48:22 A. If there was a soldier that could

48:23 not be fitted properly with one of the

48:24 standard -- or with any earplug that I had in

48:25 stock there, then a -- a custom ear mold would

49:01 be taken, and that would be sent away to a

49:02 company that would make a custom-made hearing

49:03 protection device for that individual at no

49:04 charge to them.

49:05 Q. I see.

49:06 A. A soldier was never supposed to

49:07 pay for any -- any hearing protection that they

49:08 were issued by the Army.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 266 of 305
49:09 - 50:01 Leccese, Melissa 2020-10-06

49:09 Q. I see. So if they had very large Re: [49:09 to 49:18]

49:10 ear canals at Fort Campbell, they got custom Def Obj Relevance (401, 402);

49:11 hearing protection devices? 403 

49:12 MR. BHIMANI: Object to the form.

49:13 A. The same -- and that would have

49:14 been the same for a very small ear canal.

49:15 Q. I see. So for the -- so very

49:16 small and very large ear canals, those soldiers

49:17 got custom hearing protection devices?

49:18 A. Correct.

49:19 Q. Okay. And then for the majority

49:20 of folks, they got either the standard issue

49:21 single -- single-end triple-flanged earplugs or

49:22 in special cases the double-ended Combat Arms

49:23 earplugs. Fair?

49:24 MR. BHIMANI: Object to the form.

49:25 A. The triple-flange and probably the

50:01 quad-flange as well.

51:01 - 51:05 Leccese, Melissa 2020-10-06

51:01 Q. Now, Dr. Leccese, do you recognize

51:02 this?

51:03 (Leccese Exhibit Number 3

51:04 is marked for identification.)

51:05 A. Yes.

51:10 - 51:13 Leccese, Melissa 2020-10-06

51:10 Q. So this is an example of a

51:11 PowerPoint or of a presentation that you gave

51:12 soldiers on base at Fort Campbell?

51:13 A. Yes.

52:16 - 53:03 Leccese, Melissa 2020-10-06

52:16 it. Thank you. So slide thirteen on this, I'd

52:17 like to look at that real quick. So here it

52:18 says if noise is steady-state at 85 decibels,

52:19 more than eight hours of exposure may result in

52:20 permanent NIHL. Is it correct that NIHL stands

52:21 for noise-induced hearing loss?

52:22 A. Correct.

52:23 Q. So here what you're saying is if

52:24 you're -- if you're at 85 decibels for eight

52:25 hours, you could actually get hearing damage.

53:01 Is that fair?

53:02 A. Yes. At 85 dBA, which is the

53:03 steady-state noise, then yes.

55:12 - 56:02 Leccese, Melissa 2020-10-06

55:12 Q. So you know, we've been talking Re: [55:12 to 56:02]

55:13 about hearing loss in terms of, you know, the Def Obj 701; 602; 106

55:14 actual ability to hear sounds. But there's

55:15 also -- another form of hearing damage, am I

55:16 right, is tinnitus?

55:17 A. Correct. Well --

55:18 Q. I'm sorry?

55:19 A. So people with normal hearing can

55:20 still have tinnitus.

55:21 Q. Right.

55:22 A. So just because someone has

55:23 tinnitus doesn't mean they have a hearing loss,

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55:24 per se.

55:25 Q. Okay. So it's possible and, in

56:01 fact, does happen that people might not have

56:02 experienced or might not be experiencing actual

56:07 - 56:15 Leccese, Melissa 2020-10-06

56:07 Q. And was it your experience that

56:08 soldiers on base at Fort Campbell, or really

56:09 anywhere else in your career, had that

56:10 combination of no hearing loss or little

56:11 hearing loss but tinnitus that was -- well, let

56:12 me rephrase the question.

56:13 Is it your experience as an audiologist that

56:14 soldiers, in fact, did not have substantial

56:15 hearing loss but nevertheless had tinnitus?

56:17 - 56:24 Leccese, Melissa 2020-10-06

56:17 A. It was fairly rare for someone not

56:18 to have hearing loss with the tinnitus. Most

56:19 of the time it did go together. But it's

56:20 possible for it to happen separately.

56:21 Q. Okay. And for tinnitus, this is

56:22 for folks, you know, who don't know, it's the

56:23 buzzing in the ear or ringing in the ear that

56:24 just won't go away. Is that right?

57:01 - 57:14 Leccese, Melissa 2020-10-06

57:01 A. So tinnitus can be intermittent. Re: [57:10 to 57:24]

57:02 Q. Uh-huh. Pltf Obj 602

57:03 A. It can also be constant.

57:04 Q. So meaning sometimes it will -- it

57:05 can vary between episodes where it's happening

57:06 and goes away, and then there's other types

57:07 where it's just a constant ringing in someone's

57:08 head?

57:09 A. Uh-huh. Correct.

57:10 Q. And was it your experience as an

57:11 audiologist that soldiers would -- with

57:12 tinnitus that was not constant would sometimes

57:13 report it and sometimes not depending on

57:14 whether it was going on?

57:16 - 58:05 Leccese, Melissa 2020-10-06

57:16 A. So one of -- well, I mean, in my Re: [57:10 to 57:24]

57:17 personal experience, I would ask them -- when I Pltf Obj 602

57:18 did a case history, if I saw a patient in the

57:19 clinic, I would ask them about their tinnitus.

57:20 And they would always report that if it was

57:21 there. And they -- you know, I would ask them

57:22 is it there all the time or is it just there

57:23 now and then. And so I would document all of

57:24 that.

57:25 Q. Okay. And if they -- if they

58:01 reported the exact same symptoms, well, you

58:02 know, it's intermittent, you know, it comes and

58:03 goes or it sometimes happens, if you had

58:04 already noted it in their files, would you note

58:05 it again in later visits?

58:09 - 58:09 Leccese, Melissa 2020-10-06

58:09 A. Yes. Of course.

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59:11 - 59:19 Leccese, Melissa 2020-10-06

59:11 Q. This will be Leccese Exhibit 4.

59:12 This is another presentation, Dr. Leccese. Do

59:13 you recognize this?

59:14 (Leccese Exhibit Number 4

59:15 is marked for identification.)

59:16 A. Yes.

59:17 Q. Okay. And what is this?

59:18 A. This is the first slide of another

59:19 health education briefing.

60:10 - 61:03 Leccese, Melissa 2020-10-06

60:10 Q. We're in this deposition in

60:11 connection with a case brought by a former

60:12 soldier who was stationed at Fort Campbell

60:13 named Stephen Hacker. Now, do you recall ever

60:14 meeting or treating Mr. Hacker?

60:15 A. Specifically no, I don't remember

60:16 this particular soldier.

60:17 Q. Yeah. Fair to say that you saw, I

60:18 assume, thousands of soldiers over your time at

60:19 Fort Campbell?

60:20 A. I was there for four years, so

60:21 yes, I saw a lot of soldiers.

60:22 Q. Okay. So is it fair that looking

60:23 at Mr. Hacker's medical records, his records of

60:24 his visits with you is probably the best way to

60:25 either recall or just review what you did with

61:01 him or, you know, with respect as a treating --

61:02 as a treater?

61:03 A. That would be the only way.

61:07 - 61:12 Leccese, Melissa 2020-10-06

61:07 Q. All right. Dr. Leccese, this is a

61:08 medical record. I believe this is Exhibit 5.

61:09 Someone hopefully will correct me if I'm wrong

61:10 on that.

61:11 (Leccese Exhibit Number 5

61:12 is marked for identification.)

62:13 - 62:20 Leccese, Melissa 2020-10-06

62:13 Q. And so to the best of your

62:14 understanding, this is a true and accurate copy

62:15 of a printout of a record that you created

62:16 during a medical visit with -- with Mr. Hacker?

62:17 A. Yes.

62:18 Q. Okay. And there in the date we

62:19 can see that this is from April 3, 2006?

62:20 A. Yes.

63:02 - 63:16 Leccese, Melissa 2020-10-06

63:02 Q. So the reason for the visit given

63:03 is audiological evaluation due to hearing loss

63:04 noted during in-processing hearing screening.

63:05 Patient's original DD2215 in 19 (sic) also

63:06 shows similar hearing loss in the right ear to

63:07 that found on March 9, 2006 screening. Did I

63:08 read that correctly?

63:09 A. Well, I can't see the very end of

63:10 it. So patient's original DD2215 and all I can

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 269 of 305
63:11 see is the one. So whatever year that is.

63:12 Q. In 19 -- oh, I see.

63:13 MR. WOLFSON: Let's move over the

63:14 callout a little bit to the left so Dr. Leccese

63:15 can see.

63:16 A. Okay. I see that now. 1998.

64:15 - 65:05 Leccese, Melissa 2020-10-06

64:15 Q. Okay. So you know, having this

64:16 sort of subjective description given to you, is

64:17 there any way that you are able to -- that you

64:18 are able to test or confirm for the hearing

64:19 loss? For example, would you have conducted a

64:20 hearing test that then resulted in an

64:21 audiogram?

64:22 A. Yes, I would do that.

64:23 Q. Okay. And then how do you assess

64:24 when someone describes ringing or buzzing in

64:25 their ear?

65:01 A. At that time I was not assessing

65:02 for tinnitus.

65:03 Q. Okay. So the purpose of this

65:04 visit was for the hearing loss?

65:05 A. Correct.

65:06 - 65:09 Leccese, Melissa 2020-10-06

65:06 Q. Okay. But at least in this Re: [65:06 to 65:11]

65:07 timeframe, April 2006, Mr. Hacker was clear Def Obj Foundation (602)

65:08 that he was also experiencing intermittent

65:09 ringing in his ears. Fair?

65:11 - 65:11 Leccese, Melissa 2020-10-06

65:11 A. Yes. Re: [65:06 to 65:11]

Def Obj Foundation (602)

76:15 - 77:02 Leccese, Melissa 2020-10-06

76:15 Q. So this is Leccese Exhibit 8.

76:16 Dr. Leccese, do you recognize this exhibit or

76:17 at least the format of it?

76:18 (Leccese Exhibit Number 8

76:19 is marked for identification.)

76:20 A. Yes, I recognize the format.

76:21 Q. Okay. Again, this is a -- this is

76:22 a printout of an AHLTA medical report that you

76:23 created after a visit with Mr. Hacker?

76:24 A. Correct.

76:25 Q. And here we can see that the date

77:01 of this is August 31, 2009?

77:02 A. Yes.

77:19 - 78:18 Leccese, Melissa 2020-10-06

77:19 Q. I see. So he had been overseas

77:20 on -- on deployment, comes home. As part of

77:21 that process, he gets a hearing test?

77:22 A. Correct.

77:23 Q. Okay. Now, it says -- the second

77:24 sentence said the reason for the visit. It

77:25 says there is no STS from the baseline. What's

78:01 that mean?

78:02 A. So STS is significant threshold

78:03 shift. So what it means is that the DOEHRS

OVERRULED

OVERRULED

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78:04 automated system did not calculate any

78:05 change -- any significant change in his hearing

78:06 from whatever baseline the system was using.

78:07 Q. Okay. Now, the -- the significant

78:08 threshold shift is referring only to hearing

78:09 loss. Correct?

78:10 A. No.

78:11 Q. What is that -- what is -- why do

78:12 you say no to that question?

78:13 A. So significant threshold shift is

78:14 just -- it means there's no change in his

78:15 hearing. So if a soldier's hearing was super,

78:16 super, super good and then it changed but it

78:17 was still normal, the system would still say

78:18 there's an STS in this person's hearing.

78:21 - 79:02 Leccese, Melissa 2020-10-06

78:21 clearer. Talking about a threshold shift is Re: [78:21 to 79:02]

78:22 not in any way referring to tinnitus, is it? Def Obj 106

78:23 A. That's correct.

78:24 Q. Okay. It's more about the

78:25 difference in their ability to hear than --

79:01 than anything else. Correct?

79:02 A. Correct.

79:03 - 79:09 Leccese, Melissa 2020-10-06

79:03 Q. So when we look at the reported

79:04 history, it says environmental exposure, high

79:05 level of environmental noise. And he was

79:06 fitted with large quad-flanged hearing

79:07 protection devices today with a carrying case.

79:08 Do you see that?

79:09 A. Yes, I see that.

79:10 - 79:21 Leccese, Melissa 2020-10-06

79:10 Q. So the -- when it says that he was

79:11 fitted with quad-flanged hearing protection

79:12 devices today, that's not indicating prior

79:13 usage; it's saying after this visit we gave him

79:14 quad-flanged hearing protection devices for

79:15 future use. Right?

79:16 A. Yeah. Before or after I fitted

79:17 him.

79:18 Q. Okay. So this is not making any

79:19 observation about the hearing protection

79:20 devices he had been using while on deployment?

79:21 A. No.

79:22 - 80:20 Leccese, Melissa 2020-10-06

79:22 Q. And then the final sentence here

79:23 is -- it says he did demonstrate excellent

79:24 insertion technique today with no instruction.

79:25 Do you see that?

80:01 A. Yes. I love that.

80:02 Q. Was it -- was it common practice

80:03 for you to note the quality of the insertion

80:04 technique for the soldiers that you saw?

80:05 A. Yes.

80:06 Q. So for this one, Mr. Hacker at

80:07 least, he demonstrated to you in a way that you

80:08 noted in his record that he knew how to insert

Plaintiffs will add 78:19-

20 to counter 

designation and 

Defendants withdraw 

objection, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 271 of 305
80:09 the earplugs correctly. Right?

80:10 A. Yes.

80:11 Q. Okay. And in this instance, the

80:12 quad-flange, it was a single-ended quad-flange

80:13 earplugs, and he was able to insert it

80:14 correctly with what you describe as excellent

80:15 insertion technique. Yeah?

80:16 A. Yes.

80:17 Q. Do you -- do you know, you know,

80:18 from these records whether and how often

80:19 Mr. Hacker used the double-ended Combat Arms

80:20 earplugs?

80:22 - 81:03 Leccese, Melissa 2020-10-06

80:22 A. I would have no ability to know

80:23 that at all.

80:24 Q. And am I correct that the only way

80:25 you'd be able to know that with respect to

81:01 Mr. Hacker is by reference to your records, if

81:02 they mention it at all?

81:03 A. That's true.

82:04 - 82:05 Leccese, Melissa 2020-10-06

82:04 Q. Good morning, Dr. Leccese.

82:05 A. Good morning.

82:22 - 83:14 Leccese, Melissa 2020-10-06

82:22 Q. Okay. And I'm going to cover some

82:23 of the same topics that Mr. Wolfson did.

82:24 Before I -- before I do that, I just wanted to

82:25 follow-up on some of the questions that

83:01 Mr. Wolfson asked you. Okay?

83:02 A. Okay.

83:03 Q. One of the things that I think you

83:04 said in response to one of Mr. Wolfson's

83:05 questions was that your clinic would fit

83:06 hearing protection devices for soldiers. Do

83:07 you remember that?

83:08 A. Yes.

83:09 Q. Is it your understanding that the

83:10 Department of Defense and Army regulations

83:11 required that soldiers be fitted by Army

83:12 personnel with hearing protection devices?

83:13 A. They were, yes, required to be

83:14 fitted by Army personnel.

83:20 - 85:11 Leccese, Melissa 2020-10-06

83:20 Q. Okay. So -- so somebody in your Re: [84:20 to 85:15]

83:21 unit that has the qualifications to fit Pltf Obj 402

83:22 soldiers with hearing protection devices, fair

83:23 to say?

83:24 A. Well, they had to have been

83:25 trained to fit. There wasn't a qualification

84:01 to do it. They were just -- if it was a

84:02 soldier within their own unit, their hearing

84:03 conservation representative, they were just

84:04 trained by my clinic to do -- to fit earplugs.

84:05 Q. Okay. So let me ask a better

84:06 question then. So it would be somebody in your

84:07 group that would fit soldiers with earplugs,

84:08 and those folks would be trained to do those

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84:09 fittings. True?

84:10 A. Unless it was one of the soldiers

84:11 that was from their own unit. So the unit

84:12 itself was responsible for providing the annual

84:13 health education and the annual hearing

84:14 protection fitting. Because there were so many

84:15 soldiers, it was difficult for my clinic to do

84:16 all of the fittings for everyone. So we had

84:17 representatives from each unit come to us to

84:18 get training. And then they went back to their

84:19 units and did the requirements, the education.

84:20 Q. I understand. Would it be

84:21 somebody in your clinic -- within your clinic

84:22 itself that would do initial fittings? So

84:23 putting aside the annual fittings that may come

84:24 after, the initial would be somebody in your

84:25 group. Is that true?

85:01 A. Yes. At in-processing.

85:02 Q. Okay. And that would be, again, a

85:03 technician or somebody that you had trained or

85:04 an audiologist within your group that would do

85:05 that fitting. True?

85:06 A. Yes.

85:07 Q. Okay. And again, it was your

85:08 understanding that that in-processing fitting,

85:09 that that would be something that was required

85:10 under the Department of Defense and the Army

85:11 rules and regulations. True?

85:13 - 86:11 Leccese, Melissa 2020-10-06

85:13 A. I don't recall that being an Army, Re: [84:20 to 85:15]

85:14 per se, regulation. But that was the Pltf Obj 402

85:15 Fort Campbell process that was in place.

85:16 Q. Okay. Something else that I think

85:17 you said is that in your experience the

85:18 Combat Arms Earplugs Version II were typically

85:19 fit on soldiers with H3 profiles. Do you

85:20 remember that?

85:21 A. Yes.

85:22 Q. And what is an H3 profile?

85:23 A. An H3 profile in general is a

85:24 soldier who has significant hearing loss in

85:25 both ears.

86:01 Q. And am I correct that an H1

86:02 profile is essentially somebody with normal

86:03 hearing and an H2 is somewhere in between?

86:04 A. That's a very, yes, general,

86:05 broad, correct statement.

86:06 Q. Okay. It's only because I don't

86:07 know how to be more specific than that. So if

86:08 Mr. Hacker did not have an H3 profile, would it

86:09 stand to reason that he would not have been

86:10 issued, at least at Fort Campbell, Combat Arms

86:11 Version II earplugs?

86:13 - 86:20 Leccese, Melissa 2020-10-06

86:13 A. No, I would not have any way of

86:14 knowing if he was issued them because RFI was

86:15 issuing them. So RFI is like -- I think that

86:16 was at Fort Campbell. RFI started issuing

86:17 them. So where they got their other Army gear,

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86:18 that section began issuing the Combat Arms

86:19 earplugs as a standard issue item. That had

86:20 nothing to do with my office.

86:21 - 86:23 Leccese, Melissa 2020-10-06

86:21 Q. Okay. Do you know about when that

86:22 was?

86:23 A. I don't remember, no.

86:24 - 87:14 Leccese, Melissa 2020-10-06

86:24 Q. Okay. All right. And I think one

86:25 of the things that you said you would talk to

87:01 soldiers about during in-processing would be

87:02 how to use whatever hearing protection device

87:03 they were being provided. Is that true?

87:04 A. Yes.

87:05 Q. With respect to the Combat Arms

87:06 Version II, do you recall ever telling soldiers

87:07 to -- to mismatch the earplugs, that is use the

87:08 yellow end in one side and the green end in the

87:09 other side?

87:10 A. No, I never did that.

87:11 Q. Would you have -- would you

87:12 consider that a proper use of the Combat Arms

87:13 Version II earplug if you were instructing the

87:14 soldiers to mismatch the ends during use?

87:17 - 87:19 Leccese, Melissa 2020-10-06

87:17 A. Yeah, I never instructed them to

87:18 do that. I don't know why we would instruct

87:19 someone to do that.

88:10 - 91:25 Leccese, Melissa 2020-10-06

88:10 Q. Okay. And then with respect to

88:11 the Combat Arms Version II earplugs, did you

88:12 receive any training on how to fit that earplug

88:13 yourself? In other words, to show the soldiers

88:14 how to do it, did you have to go through some

88:15 kind of training for that?

88:16 A. As far as fitting it, no. As far

88:17 as how it worked, we were given information

88:18 about like what the two sides were for and

88:19 things like that. But as far as fitting it, it

88:20 was just like fitting any other earplug.

88:21 Q. Okay. So it's not -- it's not

88:22 like there was some training that the military

88:23 provided to you or others in your group on how

88:24 to do a fitting of a Combat Arms Version II

88:25 earplug?

89:01 A. No.

89:02 Q. Okay. Were you provided any

89:03 materials by the military on how to fit

89:04 soldiers with a Combat Arms Version II earplug?

89:05 A. How to fit them? Not really how

89:06 to fit them. Just how they worked.

89:07 Q. Okay. When you say how they

89:08 worked, you're referring to what the yellow end

89:09 does and what the green end does?

89:10 A. Correct.

89:11 Q. Okay. One of the things you

89:12 mentioned with Mr. Wolfson were instruction

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 274 of 305
89:13 sheets that were provided by Public Health

89:14 Command. Do you remember that?

89:15 A. Yes.

89:16 Q. Okay. And I am -- I am correct

89:17 that Public Health Command did provide

89:18 instruction sheets relating to the Combat Arms

89:19 Version II earplugs?

89:20 A. Yes, they did.

89:21 Q. And I think you said it's now

89:22 called the Public Health Center. But is that a

89:23 division of the Army?

89:24 A. Yes, that's part of the Army.

89:25 Q. Okay. And to your knowledge,

90:01 that's not a group or an entity or anything

90:02 that's owned or affiliated with 3M or any Aearo

90:03 entity. True?

90:04 A. That's true. They're not

90:05 affiliated with 3M at all.

90:06 Q. Okay. Do you know how the

90:07 instruction sheets were developed by Public

90:08 Health Command?

90:09 A. No.

90:10 Q. It's not a process that you were

90:11 involved in yourself. True?

90:12 A. No.

90:13 Q. All right. And I'm -- and I'm --

90:14 it's fair to say then that you don't have any

90:15 knowledge as to what information 3M may have

90:16 provided to the military or to Public Health

90:17 Command relating to the Combat Arms earplug

90:18 that went into that instruction. Right?

90:19 A. That is true.

90:20 Q. Okay. The reason I ask,

90:21 Mr. Wolfson talked about, you know, if there

90:22 were studies that showed this thing or the

90:23 other thing. To the extent that any studies or

90:24 information was provided to the military

90:25 relating to the Combat Arms earplug, that's not

91:01 something that -- those aren't, you know,

91:02 meetings or a process that you were involved in

91:03 yourself personally. True?

91:04 A. That is true. I was not involved

91:05 in any of that.

91:06 Q. Okay. Did you ever ask anybody

91:07 within the military or have reason to ask

91:08 anybody within the military what information 3M

91:09 or Aearo had provided to the military relating

91:10 to the Combat Arms Version II earplugs?

91:11 A. No, I didn't that I recall.

91:12 Q. Okay. And same question as it

91:13 relates to the rolling back of flanges on the

91:14 Combat Arms Version II earplugs. You don't

91:15 know one way or the other what information was

91:16 provided by 3M or Aearo to the military

91:17 relating to the flanges or the rolling back of

91:18 flanges on the Combat Arms Version II earplug.

91:19 Fair to say?

91:20 A. Yeah. I have no idea what they

91:21 provided.

91:22 Q. Okay. And again, that's not a

91:23 question that you raised in your career at the

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 275 of 305
91:24 military with anybody in the military. True?

91:25 A. Not that I recall.

92:04 - 92:13 Leccese, Melissa 2020-10-06

92:04 Q. Okay. Do you have any knowledge

92:05 of the in-processing or the fitting procedures

92:06 or regulations that were in place at Fort Bliss

92:07 as they compared to Fort Campbell?

92:08 A. No.

92:09 Q. Okay. So you don't know, again,

92:10 one way or the other whether they -- they did

92:11 fittings the same way as you all did them at

92:12 Fort Campbell or not. True?

92:13 A. That's true. I don't know.

92:19 - 94:07 Leccese, Melissa 2020-10-06

92:19 Q. Can you walk us through the

92:20 education that you received in becoming

92:21 qualified as an audiologist?

92:22 A. Yes. I did an undergraduate four

92:23 years in speech pathology. And audiology

92:24 required a master's degree for entry. At that

92:25 time that was how it was. So I did a two-year

93:01 master's of science in audiology specifically.

93:02 And then I went to my first duty station in

93:03 Fort Polk. And a clinical fellowship year is

93:04 required in order to practice. So you have to

93:05 be supervised. So I had a clinical supervisor

93:06 for that first year, and I completed that

93:07 clinical fellowship year, CFY. And then soon

93:08 after that the profession began to move towards

93:09 a doctorate level entry.

93:10 So at that time I began the process of

93:11 getting my doctorate in audiology, which I

93:12 completed. I think it took two years of

93:13 distance learning with Arizona School of Health

93:14 Sciences. And I have my AUD currently.

93:15 Q. And the AUD is the -- the degree

93:16 that certifies you as an audiologist?

93:17 A. It's the doctor of audiology.

93:18 Q. Okay. And it sounds like --

93:19 correct me if I'm wrong. It sounds like you

93:20 spent your whole career as an audiologist until

93:21 you retired with the Army?

93:22 A. So I did have a

93:23 six-month-or-so-ish period where I worked for

93:24 the general as an academic assistant. But

93:25 otherwise I have been in audiology in the Army

94:01 my whole career.

94:02 Q. Okay. And this may not be a

94:03 question that you can answer. Do you have any

94:04 estimate as to how many soldiers you've seen

94:05 over the course of your career as an

94:06 audiologist in the military?

94:07 A. No clue.

94:08 - 94:14 Leccese, Melissa 2020-10-06

94:08 Q. It would be thousands. Is that

94:09 fair to say?

94:10 A. Well, each appointment was an hour

94:11 long. And I usually just saw somebody once

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 276 of 305
94:12 unless I fitted them with hearing aids. So I

94:13 mean, that's twenty years of -- I don't know.

94:14 I'm not very good at math, so --

94:15 - 94:18 Leccese, Melissa 2020-10-06

94:15 Q. Okay. It was a lot of soldiers.

94:16 Can we say it was a lot of soldiers? Do you

94:17 agree with that?

94:18 A. A lot.

95:13 - 98:21 Leccese, Melissa 2020-10-06

95:13 Q. Okay. And for the record, this

95:14 document has been previously marked as Hacker

95:15 Exhibit 15. Dr. Leccese, please just take a

95:16 minute and review Exhibit 15 here. It's a

95:17 one-page document.

95:18 My first question will be whether this is a

95:19 true and correct copy of a medical record that

95:20 you would have filled out on April 3, 2006?

95:21 A. Yes, it is.

95:22 Q. And you would have filled out this

95:23 form in connection with your treatment of -- of

95:24 Mr. Hacker in the course of your ordinary duty

95:25 as an audiologist with the Army. Right?

96:01 A. Yes.

96:02 Q. And you would have done this at

96:03 the same time that or shortly after meeting

96:04 with Mr. Hacker in connection with this

96:05 appointment. True?

96:06 A. Yeah. At the same time.

96:07 Q. Okay. And the handwriting that's

96:08 on Exhibit 15, is that your handwriting?

96:09 A. Yes.

96:10 Q. All right. And the signature

96:11 under prepared by, that's your signature. Yes?

96:12 A. Yes.

96:13 Q. Okay. And that -- and that

96:14 indicates that you prepared this document and

96:15 filled it out. Right?

96:16 A. Correct.

96:17 Q. Okay. And those may sound like

96:18 tedious questions. It's just kind of a formal

96:19 thing we have to do for the record. So if you

96:20 look, there's a note here under comments that

96:21 says, and I'll read it for the record, no STS

96:22 from original 1998 baseline. Do you see that?

96:23 A. Yes.

96:24 Q. And does that reflect that your

96:25 comment here is that Mr. Hacker had no

97:01 significant threshold shift from his original

97:02 1998 baseline audiogram?

97:03 A. Yes.

97:04 Q. And can you just explain in lay

97:05 terms what that means and indicates?

97:06 A. So that means his hearing is the

97:07 same as it was in 1998 when that hearing test

97:08 was completed -- the 1998 hearing test was

97:09 completed.

97:10 Q. And the second note you have here

97:11 is -- I'll again read it for the record --

97:12 referred to ENT due to conductive hearing loss,

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 277 of 305
97:13 right ear. Do you see that?

97:14 A. Yes.

97:15 Q. And I don't think you discussed

97:16 this with Plaintiff's counsel. But can you

97:17 just describe what a conductive hearing loss

97:18 is?

97:19 A. So a conductive hearing loss is

97:20 hearing loss that is caused from a middle ear

97:21 condition.

97:22 Q. How is it different, if it is

97:23 different, from a sensorineural hearing loss?

97:24 A. So conductive hearing loss can

97:25 potentially be corrected by ENT. So it's often

98:01 called the temporary hearing loss, which is not

98:02 always true if it can't be corrected. But a

98:03 sensorineural hearing loss we would always call

98:04 a permanent type of hearing loss.

98:05 Q. To your knowledge, is there any

98:06 difference between the two in terms of being

98:07 induced by exposure to noise or would that be

98:08 something you would defer to an ENT about?

98:09 A. So that's something as an

98:10 audiologist that I could diagnose myself.

98:11 Q. And what do you mean by that?

98:12 A. So if the hearing loss -- if the

98:13 hearing loss was sensorineural, then it's more

98:14 likely that it's noise induced.

98:15 Q. It's more likely in the case of a

98:16 sensorineural hearing loss than in a conductive

98:17 hearing loss. Is that -- is that what you

98:18 mean?

98:19 A. Yes. That's true.

98:20 Q. And can you just explain why that

98:21 is or how you know that to be true?

98:23 - 98:25 Leccese, Melissa 2020-10-06

98:23 A. So it's anatomy, like the way the

98:24 ear -- the ear functions, because of the way

98:25 the ear works.

100:13 - 101:13 Leccese, Melissa 2020-10-06

100:13 Dr. Leccese, do you -- do you see

100:14 Hacker Exhibit 14 here? Is that in front of

100:15 you?

100:16 A. Yes. I see it.

100:17 Q. Okay. And do you recognize this

100:18 as an electronic medical record that you would

100:19 have created and signed on April 3, 2006?

100:20 A. Yes.

100:21 Q. And you would have created this in

100:22 the course of your duties as an audiologist at

100:23 Fort Campbell treating Mr. Hacker. Right?

100:24 A. Correct.

100:25 Q. And you would have done that --

101:01 you would have created this record and the

101:02 information within it at or near the time of

101:03 meeting with Mr. Hacker on April 3, 2006?

101:04 A. At the same time. I always did my

101:05 notes like almost -- I always did my notes

101:06 right away.

101:07 Q. Okay. And under -- under

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 278 of 305
101:08 objective in the middle of the document,

101:09 there's a sentence that reads, for the record,

101:10 mild conductive hearing loss, right ear.

101:11 Apparently present for many years but not

101:12 identified until now. Do you see that?

101:13 A. Yes.

101:21 - 102:06 Leccese, Melissa 2020-10-06

101:21 Q. Okay. So where it says apparently

101:22 present for many years, that would have been

101:23 based on your review of his 1998 baseline

101:24 audiogram?

101:25 A. Correct.

102:01 Q. Okay. And normal hearing, left

102:02 ear, that just indicates that the hearing in

102:03 his left ear is normal and the -- what you

102:04 called a mild conductive hearing loss was in

102:05 his right ear. Is that a fair summary?

102:06 A. Correct.

103:04 - 104:13 Leccese, Melissa 2020-10-06

103:04 Q. Okay. So that's what I was --

103:05 that's what I was getting at really is that --

103:06 if this says 40 minutes, would that indicate

103:07 that you would have met with him in this

103:08 April 3, 2006 appointment for about 40 minutes?

103:09 A. Yes. That's...

103:10 Q. Okay. And is that a typical

103:11 length of time to meet with a soldier in a

103:12 context like this or is it longer than normal

103:13 or shorter than normal?

103:14 A. That was quick actually. Usually

103:15 it was about 60 minutes-ish.

103:16 Q. Okay. All right. And then under

103:17 A/P, written by, and then your name, do you see

103:18 that section of this record?

103:19 A. Yes.

103:20 Q. First, what does A/P mean?

103:21 A. Assessment and plan.

103:22 Q. Okay. And the second thing there

103:23 is it says tinnitus subjective. Do you see

103:24 that?

103:25 A. Yes.

104:01 Q. And does the designation

104:02 subjective indicate that this was something

104:03 that was reported to you by Mr. Hacker during

104:04 the appointment?

104:05 A. Yes.

104:06 Q. Okay. So it's not -- it hasn't

104:07 been -- it's not something like hearing loss

104:08 where you can test and have an objective

104:09 measure. It's something that he is reporting

104:10 as the patient. Is that fair?

104:11 A. That's correct. It is possible to

104:12 assess tinnitus. But I did not. I did not

104:13 assess it.

105:21 - 106:22 Leccese, Melissa 2020-10-06

105:21 Q. All right. And again, is

105:22 Hacker Exhibit 21 a true and accurate copy of a

105:23 medical record that you would have created in

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 279 of 305
105:24 the course of your duties treating Mr. Hacker?

105:25 A. Yes.

106:01 Q. And you would have created this

106:02 medical record contemporaneously with your

106:03 meeting with Mr. Hacker on July 31, 2007.

106:04 Right?

106:05 A. Yes.

106:06 Q. Okay. And you'll notice under

106:07 reason for visit, there's a sentence here that

106:08 says patient had a diagnostic audiogram

106:09 completed on April 3, 2006 and was referred to

106:10 ENT for conductive hearing loss, right ear. Do

106:11 you see that?

106:12 A. Yes.

106:13 Q. And so does that indicate that

106:14 following your meeting with Mr. Hacker on

106:15 April 3, 2006, you did, in fact, refer him to

106:16 an ENT at that time?

106:17 A. Yes, I did.

106:18 Q. All right. And then there's a

106:19 sentence that says he saw ENT on 10 May 2006.

106:20 And the note indicates that otosclerosis is

106:21 likely. Do you see that?

106:22 A. Yes.

106:23 - 107:07 Leccese, Melissa 2020-10-06

106:23 Q. What does that note indicate to

106:24 you?

106:25 A. So I took that directly off of the

107:01 ENT doctor's note. And I just put it in mine.

107:02 Q. Okay. It's not -- so otosclerosis

107:03 is not a -- is that a diagnosis you would have

107:04 sought to confirm in any way, or would you have

107:05 just relied on the ENT for that information?

107:06 A. No, I relied on the ENT for that

107:07 information.

108:01 - 108:06 Leccese, Melissa 2020-10-06

108:01 Q. Okay. Under objective there's a

108:02 sentence there. It's the fourth sentence or

108:03 so. It says at this time his hearing meets H2

108:04 criteria, and pending medical management, this

108:05 must be issued. Do you see that?

108:06 A. Yes.

108:07 - 108:14 Leccese, Melissa 2020-10-06

108:07 Q. What -- did the issuance of an H2 Re: [108:07 to 108:14]

108:08 profile have any practical consequences for how Def Obj Compound, vague, 403

108:09 Mr. Hacker would be treated as it related to

108:10 his hearing within the military? Did it put

108:11 him into some category where he received some

108:12 sort of additional care or different type of

108:13 hearing protection or anything like that?

108:14 A. No.

108:15 - 109:17 Leccese, Melissa 2020-10-06

108:15 Q. Okay. What was the -- if you

108:16 know, what is the purpose of classifying

108:17 somebody as an -- as an H2? Is there some

108:18 reason that that is done within the military?

108:19 A. Yes. So the purpose is to protect

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108:20 the soldier from further hearing loss. So a

108:21 profile, it's put on a form, a document. And

108:22 it's kept track of. Now it's kept track of

108:23 much better than it was in the past. But it's

108:24 kept track of in the system. And the purpose

108:25 is to say to the commander, it's a

109:01 communication -- it's a medical form that is

109:02 also a way to communicate with the soldier's

109:03 chain of command to say, you know, it would be

109:04 a good idea not to maybe have this person

109:05 operating the radio because they may have

109:06 trouble understanding speech.

109:07 Q. I understand. It's -- it can be

109:08 used as a communication tool with -- with

109:09 people on the ground to let them know that, you

109:10 know, this is somebody who has impaired hearing

109:11 in one ear if they have an H2 profile?

109:12 A. Correct.

109:13 Q. Okay. Is there anything in this

109:14 record that would indicate to you that

109:15 Mr. Hacker had a sensorineural hearing loss as

109:16 opposed to a conductive hearing loss?

109:17 A. No.

112:11 - 113:06 Leccese, Melissa 2020-10-06

112:11 Q. Okay. My first question will be,

112:12 is Hacker Exhibit 25 a true and accurate copy

112:13 of a medical record that you prepared on

112:14 August 31, 2009 in the course of your duties

112:15 treating Mr. Hacker on that date?

112:16 A. Yes.

112:17 Q. You would have done that again at

112:18 the time that you were meeting and treating

112:19 Mr. Hacker on August 31, 2009. Right?

112:20 A. Yes.

112:21 Q. Okay. And again, under reason for

112:22 visit on Hacker Exhibit 25, there's a statement

112:23 that says there is no STS from the baseline.

112:24 Do you see that?

112:25 A. Yes.

113:01 Q. And again, similar to the records

113:02 we saw earlier, would that indicate to you that

113:03 there was no significant threshold shift in

113:04 Mr. Hacker's hearing from his 1998 baseline

113:05 audiogram?

113:06 A. Yes, that's what it means.

114:13 - 114:17 Leccese, Melissa 2020-10-06

114:13 Q. Yes. Would this -- would this

114:14 record and this reference indicate to you that

114:15 at least as of August 31 of 2009, Mr. Hacker

114:16 was issued and was expected to be using a

114:17 quad-flange hearing protection device?

114:19 - 115:06 Leccese, Melissa 2020-10-06

114:19 A. No, I didn't expect him to use it.

114:20 He used whatever he wants to use. But I wanted

114:21 to make sure that he had something I knew that

114:22 fitted him and that he knew how to -- what a

114:23 proper fit of an earplug felt like.

114:24 Q. Okay. And understanding you don't

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 281 of 305
114:25 have any independent memory of Mr. Hacker, just

115:01 based on the records that we've reviewed today

115:02 in the deposition, have you seen any reference

115:03 to Mr. Hacker during his time at Fort Campbell

115:04 using or being fitted with a Combat Arms

115:05 Version II?

115:06 A. I would have no knowledge of that.

116:02 - 116:07 Leccese, Melissa 2020-10-06

116:02 Dr. Leccese, do you recognize Exhibit 44 as

116:03 a Department of Defense instruction number

116:04 6055.12?

116:05 (Hacker Exhibit Number 44

116:06 is marked for identification.)

116:07 A. Yes, that's what it says.

116:13 - 116:16 Leccese, Melissa 2020-10-06

116:13 Q. At some point in time, did you get

116:14 this document and review it as part of your job

116:15 duties?

116:16 A. Yeah, I'm sure I did.

117:05 - 117:13 Leccese, Melissa 2020-10-06

117:05 Q. What -- what is the DoD Hearing

117:06 Conservation Program at a very high level?

117:07 A. So it's for the whole Department

117:08 of Defense so that it includes all of the

117:09 services. And it's just a regulation. So each

117:10 service has the ability to make their own

117:11 tweaks. But this document is like general

117:12 guidelines for things that must be included in

117:13 each of the different services' --

117:15 - 117:15 Leccese, Melissa 2020-10-06

117:15 A. -- regulations.

117:18 - 118:03 Leccese, Melissa 2020-10-06

117:18 A. So it has like -- each different

117:19 service has their own set of regulations and

117:20 standards. And this is just the general -- the

117:21 general one.

117:22 Q. Okay. So this would apply to -- I

117:23 think you said it would apply to the Army. But

117:24 then the Army may have more specific

117:25 regulations and then, you know, even within

118:01 Fort Campbell there may be even more specific

118:02 regulations. Is that a fair summary?

118:03 A. Yeah. That's exactly right.

118:10 - 119:03 Leccese, Melissa 2020-10-06

118:10 Q. Okay. Okay. And I mean, is it

118:11 your understanding that in conjunction with

118:12 whatever regulations the Army and Fort Campbell

118:13 would have adopted, the requirements set forth

118:14 here in this DoD instruction, those would have

118:15 been applicable to the Army and to

118:16 Fort Campbell?

118:17 A. Absolutely.

118:18 Q. Okay. And so if you'll go to the

118:19 second page of this, you'll see there's a

118:20 sentence there that says applies to all DoD

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 282 of 305
118:21 military and civilian appropriated and

118:22 non-appropriated personnel and operations

118:23 worldwide. Do you see that?

118:24 A. Yes.

118:25 Q. And that's -- and that's

119:01 consistent with your understanding also around

119:02 the applicability of this instruction?

119:03 A. Yes.

120:13 - 120:17 Leccese, Melissa 2020-10-06

120:13 Q. Okay. So a soldier on active duty

120:14 as opposed to a civilian employee, for example,

120:15 just by default they would be enrolled in the

120:16 Hearing Conservation Program?

120:17 A. Yes, they would.

120:24 - 122:08 Leccese, Melissa 2020-10-06

120:24 Q. All right. So under 6.6.1 -- and

120:25 I'll read the sentence, use of personal hearing

121:01 protectors to limit noise exposure is

121:02 considered to be an interim protective measure

121:03 while engineering control measures are being

121:04 explored. Do you see that sentence?

121:05 A. Yes.

121:06 Q. And then it says such devices

121:07 shall constitute a permanent measure only if

121:08 engineering controls are not technologically,

121:09 economically, or operationally possible. Do

121:10 you see that?

121:11 A. Yes.

121:12 Q. What is an engineering control

121:13 measure as it relates to noise exposure?

121:14 A. Setting up a barrier around a

121:15 piece of equipment to reduce the noise exposure

121:16 to an employee. That's an example. There's

121:17 more. I -- I'm not industrial hygiene, so I

121:18 can't like off the top of my -- or like

121:19 putting -- putting sound absorbant stuff on the

121:20 walls to absorb the sound so that the noise

121:21 levels are decreased. That's an engineering

121:22 control measure.

121:23 Q. Okay. Fair enough. And so when

121:24 this document says the use of personal hearing

121:25 protectors to limit noise exposure is

122:01 considered to be an interim protective measure,

122:02 is that indicating that, you know, the first

122:03 line of -- for lack of a better way to say it,

122:04 the first line of defense would be an

122:05 engineering control; and then if that's not

122:06 possible for whatever reason, the personal

122:07 hearing protection equipment would be used?

122:08 A. Yes. --

122:11 - 123:06 Leccese, Melissa 2020-10-06

122:11 Q. Okay. Okay. Okay. And then if

122:12 you'll go to page eight, please. The document

122:13 in section 6.6.7 says for the record, preformed

122:14 earplugs shall be fitted and issued only under

122:15 the supervision of personnel who have been

122:16 specifically trained to fit earplugs. Do you

122:17 see that?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 283 of 305
122:18 A. Yes.

122:19 Q. And was that the -- did that

122:20 requirement also apply to Fort Campbell?

122:21 A. Yes.

122:22 Q. And as far as you are aware, was

122:23 that also the requirement at each of the other

122:24 duty stations within the Army?

122:25 A. Yes.

123:01 Q. And is it the same with respect to

123:02 section 6.6.9 -- and just for the record that

123:03 one reads, medically trained personnel must

123:04 examine the fit and condition of preformed and

123:05 custom earplugs at least annually?

123:06 A. Yes. That --

123:09 - 124:03 Leccese, Melissa 2020-10-06

123:09 Q. Is that a requirement that applied

123:10 both at Fort Campbell and at all of the other

123:11 duty stations within the Army?

123:12 A. Yes. Absolutely.

123:13 Q. Okay. And the same is true with

123:14 respect to 6.6.10, which for the record reads

123:15 personnel shall receive adequate and effective

123:16 training in the proper care and use of personal

123:17 hearing protectors. That was a requirement in

123:18 effect at Fort Campbell and all of the other

123:19 duty stations within the Army?

123:20 A. Yes.

123:21 Q. And so there's references here to

123:22 preformed earplugs. Is the Combat Arms

123:23 Version II earplug a preformed earplug?

123:24 A. Yes, it is.

123:25 Q. Okay. So sections 6.6, .7, .9,

124:01 and .10, each of those sections would apply to

124:02 the Combat Arms Version II earplugs. True?

124:03 A. That's true.

124:11 - 125:18 Leccese, Melissa 2020-10-06

124:11 With respect to sections 6.6, .7, .9, and .10, Re: [125:05 to 125:18]

124:12 in addition to being the requirement, these Pltf Obj 602

124:13 were also -- this was also the practice and was

124:14 enforced at Fort Campbell. Right?

124:15 A. And so my staff was limited. And

124:16 I got there in 2006. So it took me a while to

124:17 get things going. So I did have trainings. I

124:18 did a lot of trainings. But like I said, I

124:19 couldn't supervise it. Once I trained them to

124:20 do, this is what you need to go out to your

124:21 unit and do, I don't have any records of

124:22 actually what happened after that.

124:23 Q. Okay. And so if you go down a

124:24 little bit further, in 6.6.12 -- and for the

124:25 record, this one says the DoD component must

125:01 assess the adequacy of hearing protectors when

125:02 used in very high noise environments or for

125:03 extended exposure periods. Do you see that?

125:04 A. Yes.

125:05 Q. Do you know what a DoD component

125:06 is?

125:07 A. Well, I guess I'm thinking like

125:08 industrial hygiene, you know, like a noise

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125:18]

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125:09 engineer responsible for that.

125:10 Q. Well, do you have an understanding

125:11 of what this assessment is referring to or what

125:12 it would entail?

125:13 A. Well, I mean, reading it now

125:14 specifically, I guess it would be research on a

125:15 hearing protector, testing on the hearing

125:16 protectors to ensure that they are adequate and

125:17 at what, like, noise levels they're adequate

125:18 for.

129:01 - 129:22 Leccese, Melissa 2020-10-06

129:01 Q. And this is enclosure six, general

129:02 information poster. Do you see that?

129:03 A. Yes.

129:04 Q. Would this have been -- would this

129:05 poster have been something that was shown to

129:06 soldiers in some form at Fort Campbell while

129:07 you were there?

129:08 A. Not that specific one. But one

129:09 that would have done the same thing probably.

129:10 Q. Okay. And so I want to direct

129:11 your attention to .3 on this poster that says

129:12 plugs tend to work loose as a result of talking

129:13 and chewing and must be reseated. Do you see

129:14 that?

129:15 A. Yes.

129:16 Q. Is that -- as far as you know, is

129:17 that an accurate statement?

129:18 A. Yes, it is.

129:19 Q. Okay. And -- and since this is a

129:20 general poster, is that something that is true

129:21 of earplugs in general -- in-the-ear earplugs

129:22 in general?

130:08 - 130:08 Leccese, Melissa 2020-10-06

130:08 A. My answer is yes.

131:01 - 131:07 Leccese, Melissa 2020-10-06

131:01 Q. So during the course of your Re: [131:01 to 131:15]

131:02 tenure with the Army as somebody involved in Pltf Obj 602, 702

131:03 the Hearing Conservation Program, did you ever

131:04 come across any documents or findings that

131:05 reflected increased rates of significant

131:06 threshold shifts among soldiers using the

131:07 Combat Arms Version II earplug?

131:09 - 131:15 Leccese, Melissa 2020-10-06

131:09 A. That -- that is not something that Re: [131:01 to 131:15]

131:10 I was tracking. Pltf Obj 602, 702

131:11 Q. Okay. So you have not seen

131:12 documents one way or the other on that. Is

131:13 that -- is that fair to say?

131:14 A. I don't recall specific documents

131:15 of that nature.

133:10 - 133:13 Leccese, Melissa 2020-10-06

133:10 Q. Dr. Leccese, do you have

133:11 Hacker Exhibit 45 in front of you? It's the

133:12 DoD instruction, March 5, 2004.

133:13 A. I do.

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133:24 - 134:22 Leccese, Melissa 2020-10-06

133:24 Q. Okay. And so this would have the

133:25 same effectiveness and application that the

134:01 prior instruction would have had. Is that fair

134:02 to say?

134:03 A. Correct.

134:04 Q. Okay. And so again, subject to

134:05 any implementing regulations from -- or in

134:06 addition to any implementing regulations from

134:07 the Army or within Fort Campbell, this would

134:08 have had application to Fort Campbell and the

134:09 personnel there. Right?

134:10 A. Yes.

134:11 Q. Okay. That's all I have on that

134:12 one, so you can put that one aside. And the

134:13 next one is Exhibit 13, please. And we'll mark

134:14 this one as Exhibit 46.

134:15 And Dr. Leccese, I think you mentioned this

134:16 one earlier. But do you recognize Exhibit 46

134:17 to be the Department of the Army pamphlet

134:18 40-501 with Hearing Conservation Program on the

134:19 title?

134:20 (Hacker Exhibit Number 46

134:21 is marked for identification.)

134:22 A. Yes.

135:23 - 136:02 Leccese, Melissa 2020-10-06

135:23 Q. Okay. So in the time that you

135:24 worked at Fort Campbell until 2010 as an

135:25 audiologist, would this pamphlet marked here as

136:01 Exhibit 46 have been the operative pamphlet?

136:02 A. Yes. Yes.

136:07 - 138:21 Leccese, Melissa 2020-10-06

136:07 Q. Okay. So there is a section here,

136:08 section G, which reads for the record, the HCPM

136:09 manages and coordinates all aspects of the HCP

136:10 outlined in this pamphlet per AR 40-5. Do you

136:11 see that?

136:12 A. Yes.

136:13 Q. And is your understanding that

136:14 HCPM refers to the Hearing Conservation Program

136:15 manager?

136:16 A. Yes.

136:17 Q. And HCP refers to the U.S. Army

136:18 Hearing Conservation Program?

136:19 A. Yes.

136:20 Q. And am I correct that for a period

136:21 of time you were the Hearing Conservation

136:22 Program manager at Fort Campbell. Right?

136:23 A. Yes.

136:24 Q. And so in accordance with this

136:25 pamphlet, it's also true that you managed and

137:01 coordinated all aspects of the U.S. Army

137:02 Hearing Conservation Program as it's outlined

137:03 in this Army pamphlet?

137:04 A. I did.

137:05 Q. Okay. And then the -- the

137:06 pamphlet also says in the same section these

137:07 responsibilities include, and then there's a

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 286 of 305
137:08 subsection two, insuring that medically trained

137:09 personnel fit individuals with preformed

137:10 earplugs and then examine individuals at least

137:11 annually to ensure proper earplug condition and

137:12 fit. Do you see that?

137:13 A. Yes.

137:14 Q. And we've discussed this earlier,

137:15 but your responsibilities, in fact, did include

137:16 ensuring that medically trained personnel fit

137:17 individuals with preformed earplugs and also

137:18 examining individuals at least annually to

137:19 ensure proper earplug condition and fit as it's

137:20 described here. Right?

137:21 A. Yes.

137:22 Q. Okay. And then under -- well, let

137:23 me -- let me take a step back. So did this

137:24 responsibility include if there were soldiers

137:25 using the Combat Arms Version II? I think you

138:01 said before you would fit soldiers with that

138:02 earplug also if that was the earplug they were

138:03 using. Right?

138:04 A. Typically I -- I would fit them in

138:05 my clinic if they had an H3 profile.

138:06 Q. Would the requirement be different

138:07 for a soldier who was using the Combat Arms

138:08 Version II who did not have an H3 profile, so

138:09 somebody with an H1 or an H2?

138:10 A. So I typically didn't fit them

138:11 with the Combat Arms.

138:12 Q. Okay. So if somebody with an H1

138:13 or an H2 profile was using the Combat Arms,

138:14 would they have to have a fitting with somebody

138:15 in your group, you know, even if it's not you,

138:16 somebody who you had trained or a technician?

138:17 A. So this goes back to the RFI

138:18 issue. So whatever RFI was doing, I had no

138:19 knowledge of. That procedure was -- was their

138:20 own. But I had no knowledge of them being

138:21 fitted there. They were being distributed.

138:22 - 139:05 Leccese, Melissa 2020-10-06

138:22 Q. Okay. So is it fair to say that

138:23 if there was an -- if there was H1 profile or

138:24 an H2 profile soldier who was using the

138:25 Combat Arms earplug, to the extent they were

139:01 fitted at all, it would have been done out of

139:02 RFI. But it wouldn't have been done as part of

139:03 your group or somebody that you had trained.

139:04 Is that --

139:05 A. Yes.

139:07 - 140:05 Leccese, Melissa 2020-10-06

139:07 Q. And do you have any knowledge Re: [139:07 to 139:24]

139:08 yourself -- and I think you've said this Pltf Obj 402

139:09 already. But do you have any knowledge

139:10 yourself as to whether folks in the RFI group

139:11 were qualified or were conducting fitting by

139:12 medically trained individuals?

139:13 A. I have no knowledge of that.

139:14 Q. Were there audiologists who worked

139:15 in that group, to your knowledge?

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139:16 A. No. I was the only military

139:17 audiologist there. And there was a civilian

139:18 audiologist there as well. But she did not do

139:19 anything at RFI.

139:20 Q. Same question as it relates to

139:21 certified technicians or ENTs, do you know in

139:22 the RFI group had any -- anybody with those

139:23 credentials within the group?

139:24 A. No, I don't believe they had that.

139:25 Q. Okay. Okay. Is there -- is there

140:01 a reason why soldiers with an H1 or H2 profile

140:02 who were using the Combat Arms Version II

140:03 earplug would not have been fitted for that

140:04 earplug within your group whereas soldiers with

140:05 the H3 profile would have been?

140:07 - 141:03 Leccese, Melissa 2020-10-06

140:07 A. So that wasn't a standard issue

140:08 earplug. So that was something that I did at

140:09 an appointment with someone. If I had an H3, I

140:10 may give them a Combat Arms earplug because

140:11 they really needed the extra help.

140:12 Q. Okay. But if it was an optional

140:13 issue for a soldier, so you know, a soldier

140:14 came to you with a Combat Arms Version II

140:15 earplug and said this is the earplug that I'm

140:16 using, would they get a fitting under that

140:17 circumstance?

140:18 A. So I can't imagine that ever

140:19 happening. But absolutely.

140:20 Q. Okay. So in other words, if -- if

140:21 somebody indicated to you that that is the

140:22 earplugs they were using, putting aside whether

140:23 it had been the standard issue and they had

140:24 raised that, somebody on your staff or you

140:25 would have done a fitting with them. Is that

141:01 fair?

141:02 A. Yes. If they came into the clinic

141:03 with them.

141:21 - 142:01 Leccese, Melissa 2020-10-06

141:21 Q. (Mr. Bhimani) Okay. So

141:22 Dr. Leccese, just to follow-up on something you

141:23 said a minute ago, why was it the case that the

141:24 Combat Arms Version II earplugs were reserved

141:25 for soldiers with H3 hearing profiles? Was

142:01 that a cost issue or something else?

142:03 - 143:23 Leccese, Melissa 2020-10-06

142:03 A. It was a cost issue. Re: [142:07 to 143:23]

142:04 Q. Okay. Any other reasons for that Pltf Obj 402

142:05 difference in treatment?

142:06 A. No. It was really a cost issue.

142:07 Q. Okay. And you referred to the

142:08 size of your staff a few minutes ago. Did the

142:09 size of your staff change at all during the

142:10 time that you were within the military over the

142:11 course of your tenure? Did it get bigger or

142:12 did it decrease in size?

142:13 A. So within my tenure at

142:14 Fort Campbell, you mean?

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142:15 Q. Well, I'll ask more generally

142:16 first and then within Fort Campbell.

142:17 A. So well every place was different.

142:18 So sometimes I was at a small installation, and

142:19 then sometimes I was at a large installation.

142:20 So Fort Campbell was probably the largest

142:21 installation that I was ever at.

142:22 Q. Okay. So -- so I'll be more

142:23 specific then. With respect to Fort Campbell,

142:24 did the size of your staff change over time

142:25 during the course of your tenure at that duty

143:01 station?

143:02 A. It did.

143:03 Q. Can you describe that, how it

143:04 changed?

143:05 A. So when I started I had myself and

143:06 a full-time technician and a part-time

143:07 technician. And then when I -- by the time I

143:08 left there, I had myself, and I had three

143:09 full-time technicians, and a front desk person.

143:10 Q. Okay. Do you have a sense of

143:11 when, you know, you added various people or was

143:12 it just kind of a gradual change over time?

143:13 A. Yeah, it takes a long time. So

143:14 yes, it was very gradual.

143:15 Q. Okay. With respect to fittings,

143:16 do you have any estimate as to how many

143:17 fittings you or the folks who worked under you

143:18 conducted in a given week?

143:19 A. I don't remember. There were

143:20 probably 40 people in the in-processing class.

143:21 I don't remember how often we did that. Like I

143:22 don't know if we had that once a week or if we

143:23 did that every day. I don't remember.

143:24 - 144:03 Leccese, Melissa 2020-10-06

143:24 Q. Okay. Well, was it -- you know,

143:25 just to get a sense, was it more frequent to do

144:01 an in-processing group of around 40 people, was

144:02 it less frequent than a week or a weekly thing?

144:03 A. I don't remember.

144:04 - 145:11 Leccese, Melissa 2020-10-06

144:04 Q. Okay. Okay. If you will go to

144:05 page eleven, please. And just if you look at

144:06 8-1 requirements -- and for the record, it just

144:07 reads the HCPM or designee must provide hearing

144:08 conservation health education at least annually

144:09 to all noise-exposed personnel. Do you see

144:10 that?

144:11 A. I see that.

144:12 Q. And as you said before, this is

144:13 something that was done at Fort Campbell as

144:14 well. Right?

144:15 A. Yes.

144:16 Q. And then it says instruction will

144:17 cover, and there's a number of sub-items listed

144:18 there. Do you see those?

144:19 A. Yes.

144:20 Q. And one of the sub-items is the

144:21 purpose, advantages, disadvantages, and

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 289 of 305
144:22 attenuation of various types of hearing

144:23 protectors. Do you see that?

144:24 A. Yes.

144:25 Q. And that was, in fact, covered in

145:01 the annual education that was done at

145:02 Fort Campbell. Fair?

145:03 A. So the way that I handled that

145:04 situation was I trained representatives from

145:05 the unit. And then they were to provide the

145:06 health education and the fitting of the hearing

145:07 protection. So -- and I did not -- I was not

145:08 able to go out and supervise whether that was

145:09 actually happening. I don't have any

145:10 checklists or record of that. So I do not

145:11 actually know if it happened.

145:16 - 147:17 Leccese, Melissa 2020-10-06

145:16 Q. Okay. And these representatives, Re: [146:07 to 146:16]

145:17 were they technicians who worked under you or Pltf Obj Asked/answered

145:18 were they other soldiers or officers in the --

145:19 in the actual groups? I mean, who were the

145:20 people that you would train in this regard?

145:21 A. They were soldiers from the units.

145:22 Q. Okay. Okay. So they were

145:23 soldiers -- they were soldiers from the units.

145:24 At some point they would have gotten training

145:25 with you. And then they would have trained

146:01 their fellow soldiers?

146:02 A. Uh-huh. They would have fitted

146:03 their hearing protection.

146:04 Q. Okay.

146:05 A. And sometimes they did the hearing

146:06 tests too. But they were trained by me.

146:07 Q. Okay. All right. And I think

146:08 you've said all of this. I just want to make

146:09 sure that I have it right for the record. The

146:10 in-processing fittings that were conducted of

146:11 soldiers, that would have been either you or a

146:12 technician in your group. And then the annual

146:13 fittings that were conducted, those would have

146:14 been done by unit soldiers that you had

146:15 trained. Fair?

146:16 A. Correct.

146:17 Q. Okay. And with respect to the

146:18 annual education courses -- and we've seen some

146:19 presentations that you've provided -- would

146:20 that have been you or would that have been unit

146:21 officers or maybe some combination of the two?

146:22 A. Yeah, a combination of the two.

146:23 Q. Okay. And in the -- so not the

146:24 fitting but in the education courses that you

146:25 personally did, would the purpose, advantages,

147:01 disadvantages, and attenuation of various types

147:02 of hearing protectors that's listed here in the

147:03 Army pamphlet have been a topic that you

147:04 covered in those education questions?

147:05 A. Probably.

147:06 Q. Okay. And the same -- is it the

147:07 same answer with respect to the next topic

147:08 that's listed here, the selection, fit, care,

147:09 and use of hearing protectors?

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147:10 A. Now that I would have

147:11 definitely -- at least some of it, like the fit

147:12 and the care, I'm pretty sure I talked about

147:13 that. And -- and use, I talked a lot about

147:14 that, how important it is to use them. Maybe

147:15 not so much the selection because they weren't

147:16 necessarily selecting them themselves. They

147:17 were being issued to them.

148:14 - 149:18 Leccese, Melissa 2020-10-06

148:14 Q. All right. And then on the next

148:15 page of this Exhibit Number 46, under section

148:16 10.2 there's a reference to the USACHPPM. Do

148:17 you see that?

148:18 A. Yes.

148:19 Q. And do you understand that to be a

148:20 reference to the U.S. Army Public Health

148:21 Center?

148:22 A. Yes.

148:23 Q. Do you have an understanding of

148:24 what the U.S. Army Public Health Center does?

148:25 Is that the -- is that the same thing that we

149:01 were -- let me ask a different question. Is

149:02 the U.S. Army Public Health Center the same

149:03 thing as the Public Health Command that we were

149:04 discussing a little bit before?

149:05 A. Yes. It's the same organization.

149:06 It's just the general left. And they didn't

149:07 replace the general. So you can't call it a

149:08 command unless there's a general. So they had

149:09 to change the name to Public Health Center.

149:10 Q. Okay. And as it related to

149:11 information about various hearing protection

149:12 devices that were being offered by the military

149:13 during your time at Fort Campbell, what was the

149:14 role of the U.S. Army Public Health Center in

149:15 providing you information relating to hearing

149:16 protection devices, if anything?

149:17 A. They provided the instruction

149:18 cards.

151:21 - 152:07 Leccese, Melissa 2020-10-06

151:21 Q. Okay. And then -- and with Re: [151:21 to 156:02]

151:22 respect to the instruction cards, is it your Pltf Obj 805

151:23 understanding that the instruction cards were

151:24 something that were drafted by the Public

151:25 Health -- the U.S. Army Public Health Center?

152:01 A. Yes.

152:02 Q. Okay. And I may have asked you

152:03 this earlier already. But neither you or your

152:04 staff had any role in -- in drafting those

152:05 materials? It was something that you would

152:06 receive from the Public Health Center?

152:07 A. That's true.

152:15 - 152:21 Leccese, Melissa 2020-10-06

152:15 Q. And do you recognize Exhibit 47 to Re: [151:21 to 156:02]

152:16 be a publication from the Army ST 4-02.501 Pltf Obj 805

152:17 relating to the Army Hearing Program?

152:18 A. Yes.

152:19 Q. Have you seen this document

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152:20 before?

152:21 A. Yes.

153:18 - 154:16 Leccese, Melissa 2020-10-06

153:18 Q. Okay. And so -- and I'm sorry. Re: [151:21 to 156:02]

153:19 On page 1-3, it's paragraph 1-13. And there's Pltf Obj 805

153:20 a sentence there that says with the influx of

153:21 soldiers experiencing hearing loss in Iraq, Re: [153:18 to 153:25]

153:22 once reluctant soldiers began stating the need Pltf Obj 402, 403

153:23 for hearing protection while dismounted. Do

153:24 you see that?

153:25 A. I see that.

154:01 Q. Do you have an understanding of

154:02 what this is talking about when it refers to

154:03 hearing protection while dismounted?

154:04 A. So while -- dismounted means while

154:05 they're not in a vehicle.

154:06 Q. Okay. And the sentence goes on.

154:07 It describes that the Combat Arms earplug was

154:08 introduced for operational service. And then

154:09 it says this earplug allows for communication

154:10 while protecting from hazardous impulse noises

154:11 such as weapons fire and explosions. Do you

154:12 see that?

154:13 A. Yes.

154:14 Q. And is that consistent with your

154:15 understanding of the features that the

154:16 Combat Arms earplug had?

154:20 - 155:03 Leccese, Melissa 2020-10-06

154:20 A. Yes. Re: [151:21 to 156:02]

154:21 Q. Okay. And on the next page, 1-4, Pltf Obj 805

154:22 in paragraph 1-19 there is a reference to --

154:23 well, I'll just read it. It says for the

154:24 record, United States forces in Iraq and

154:25 Afghanistan experienced a substantial number of

155:01 blast injuries from IEDs, RPGs, and mortar

155:02 rounds. Do you see that?

155:03 A. I see that.

155:21 - 156:02 Leccese, Melissa 2020-10-06

155:21 Q. Okay. In paragraph 4-48, there's Re: [155:21 to 156:02]

155:22 a sentence there that says as reported by Pltf Obj 805

155:23 audiologist who served in Iraq, no soldier seen

155:24 at the CSH that reported wearing the CAE when Re: [155:21 to 156:02]

155:25 exposed to an explosion had ruptured eardrums. Pltf Obj 402 and 805.

156:01 Do you see that?

156:02 A. I see that.

156:03 - 156:04 Leccese, Melissa 2020-10-06

156:03 Q. Is that consistent with your own

156:04 experience at Fort Campbell?

156:06 - 156:06 Leccese, Melissa 2020-10-06

156:06 A. Yeah, I have no idea.

156:15 - 156:21 Leccese, Melissa 2020-10-06

156:15 Q. Okay. There is also a sentence in Re: [156:15 to 156:21]

156:16 4-50 that says this earplug -- and it's Pltf Obj 403, 403, 802 and

156:17 referring to the double-sided CAE -- is the 805. 

156:18 best passive protection for soldiers who need

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156:19 to hear softer level sounds when exposed to

156:20 unexpected weapons noise. Do you see that?

156:21 A. I see that.

157:02 - 157:10 Leccese, Melissa 2020-10-06

157:02 well, I'll -- I'll re-ask the question. The

157:03 statement in paragraph 4-50 that says this

157:04 earplug, referring to the double-sided CAE, is

157:05 the best passive protection for soldiers who

157:06 need to hear softer level sounds when exposed

157:07 to unexpected weapons noise, did you yourself

157:08 have a different view of the Combat Arms

157:09 earplug during the time that you were at

157:10 Fort Campbell?

157:12 - 157:14 Leccese, Melissa 2020-10-06

157:12 A. Well, it was the only earplug that

157:13 we had of that type available to the Army at

157:14 that time.

157:15 - 158:04 Leccese, Melissa 2020-10-06

157:15 Q. Okay. And then the next

157:16 paragraph, this is 4-51, it reads to insert the

157:17 double sided CAE, follow the directions for

157:18 inserting the triple-flanged earplug, however,

157:19 the insertion tool is not used. One size fits

157:20 most. Do you see that?

157:21 A. I see that.

157:22 Q. And is that consistent with the

157:23 practice that was used to fit soldiers with the

157:24 Combat Arms Version II earplug at Fort Campbell

157:25 during the time that you were there?

158:01 A. Yes.

158:02 Q. It says they're one size fits

158:03 most. Do you see that?

158:04 A. Yes.

158:14 - 158:16 Leccese, Melissa 2020-10-06

158:14 Q. Okay. Do you have an

158:15 understanding as to why it says one size fits

158:16 most as opposed to one size fitting all?

158:18 - 158:19 Leccese, Melissa 2020-10-06

158:18 A. Well, there were ears that it

158:19 didn't fit.

158:20 - 158:23 Leccese, Melissa 2020-10-06

158:20 Q. Okay. And do you -- do you have Re: [158:20 to 159:02]

158:21 an understanding as to what types of ears would Def Obj 602

158:22 require -- would be outside of the most that's

158:23 referred to here in one size fits most?

158:25 - 159:02 Leccese, Melissa 2020-10-06

158:25 A. Very small ears and very large Re: [158:20 to 159:02]

159:01 ears, ear canals. Very small ear canals and Def Obj 602

159:02 very large ear canals.

159:03 - 160:12 Leccese, Melissa 2020-10-06

159:03 Q. And in determining whether a

159:04 soldier had an ear canal that was too small or

159:05 too large for the Combat Arms Version II

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159:06 earplug, how would that determination be made?

159:07 Would that be a visual inspection?

159:08 A. It would be fitted. They would be

159:09 fitted with it. Well, unless it was obvious by

159:10 looking in their ear canal that it wouldn't

159:11 fit, then we wouldn't waist the earplug by

159:12 sticking it in their ear. Because once we

159:13 stick it in their ear, we'd have to sanitize it

159:14 or just throw it away.

159:15 Q. Right.

159:16 A. So yeah, we'd fit it on them and

159:17 do the tug test and do the other test. And if

159:18 it didn't seal right, then we did not give it

159:19 to them.

159:20 Q. Okay. Okay. And we can put that

159:21 document aside and open the next one, which is

159:22 Exhibit 15. And for the record, we'll mark

159:23 this one as Hacker Exhibit Number 48. Just let

159:24 me know when you're there.

159:25 (Hacker Exhibit Number 48

160:01 is marked for identification.)

160:02 A. Oh, I'm there.

160:03 Q. Okay. So my first question is, is

160:04 this a document that you've seen before?

160:05 A. This is the instruction card that

160:06 I handed out with earplugs or something similar

160:07 to this.

160:08 Q. Okay. Yeah. So there's a bullet

160:09 point on the first page here that says for very

160:10 large ear canals, fold opposing plug back. Do

160:11 you see that?

160:12 A. I see that.

160:13 - 161:02 Leccese, Melissa 2020-10-06

160:13 Q. Do you recall if the instruction

160:14 cards that you recall using and seeing while

160:15 you were at Fort Campbell had that bullet point

160:16 on there?

160:17 A. I feel like the cards that I had

160:18 did not have that on there because --

160:19 Q. Okay.

160:20 A. -- we did not really recognize

160:21 that.

160:22 Q. Right. So your best memory is

160:23 that the instruction cards that you would have

160:24 received would not have had the bullet point

160:25 that referred to folding the opposing plug back

161:01 for certain types of ear canals?

161:02 A. That's correct.

161:03 - 161:08 Leccese, Melissa 2020-10-06

161:03 Q. Okay. And understanding that's

161:04 your best memory, is it -- can you 100 percent

161:05 rule out the fact that the instruction cards

161:06 you would have had would have included that

161:07 bullet point, it's just that you don't

161:08 remember?

161:10 - 162:02 Leccese, Melissa 2020-10-06

161:10 A. You know, I can't rule it out

161:11 entirely because I could have read it and said

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 294 of 305
161:12 I have no idea what that means because I had no

161:13 idea what that means and just stopped saying

161:14 it. Maybe -- I don't remember. I mean, I

161:15 never had time to ask, like, somebody what is

161:16 this about.

161:17 Q. Okay. So that would be -- that

161:18 was going to be my next question. Do you

161:19 recall ever asking anybody, whether it was in

161:20 Fort Campbell or within the military in

161:21 general, any questions about folding flanges or

161:22 part of the plug back on the Combat Arms

161:23 Version II earplug?

161:24 A. So I don't remember. But if I did

161:25 ask the question, I obviously did not get a

162:01 satisfactory answer because I think I would

162:02 have remembered it at that point.

162:03 - 162:19 Leccese, Melissa 2020-10-06

162:03 Q. Okay. Okay. And so other than

162:04 that bullet point, the rest of the instruction

162:05 card, does this look like something similar to

162:06 what you would have used -- the instruction

162:07 card that you would have had and used while you

162:08 were at Fort Campbell?

162:09 A. Yeah. I don't remember that last

162:10 bullet either. That last bullet looks strange

162:11 to me. I've never seen that either. But

162:12 otherwise, everything looks in line.

162:13 Q. Okay. And that last bullet, the

162:14 one you're referring is although still

162:15 protective, weapons fire is louder with yellow

162:16 plugs in.

162:17 A. Right.

162:18 Q. Is that the one?

162:19 A. Yes.

162:20 - 163:19 Leccese, Melissa 2020-10-06

162:20 Q. Okay. And on that -- on the

162:21 second page of Exhibit 48, in the bottom

162:22 right-hand corner there's a logo. Do you see

162:23 that?

162:24 A. Yes, I see that.

162:25 Q. Is that the logo of what was

163:01 previously known as Public Health Command and

163:02 is now the U.S. Army Public Health Center?

163:03 A. Correct.

163:04 Q. Okay. Would that indicate to you

163:05 that this was a document that was provided by

163:06 and produced by the -- what was previously

163:07 known as Public Health Command and now is the

163:08 U.S. Army Public Health Center?

163:09 A. Yes.

163:10 Q. Okay. And it says for more

163:11 information, see fact sheet 51-004-0204 at, and

163:12 then there's two different addresses -- web

163:13 addresses. And they both -- they both appear

163:14 to be .mil addresses. Do you see that?

163:15 A. Yes.

163:16 Q. And that would indicate to you

163:17 that those two web addresses were websites

163:18 maintained by the military?

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 295 of 305
163:19 A. Yes.

164:06 - 164:15 Leccese, Melissa 2020-10-06

164:06 Q. Okay. And so the instruction

164:07 cards that you utilized, would you get like a

164:08 stack of them and would you hand them out to

164:09 soldiers, or were those for your reference and

164:10 benefit?

164:11 A. No. I would get a stack of them.

164:12 And if I fit a Combat Arms earplug, I would

164:13 provide one of these cards as well. I would

164:14 provide the instruction and fitting and I'd

164:15 also give them the card.

165:05 - 166:14 Leccese, Melissa 2020-10-06

165:05 Q. Okay. So the last thing on this

165:06 document, there's a picture here of a

165:07 Combat Arms earplug with a folded back -- you

165:08 know, part of it's folded back on the right

165:09 side of the document on the bottom. Do you see

165:10 that?

165:11 A. I see that.

165:12 Q. Have you seen a picture of a plug

165:13 with a part of it folded back like that ever

165:14 before?

165:15 A. I do not recall ever seeing that.

165:16 Q. Okay. All right. So the next one

165:17 is tab 16. We will mark this one Hacker

165:18 Exhibit 49. Is this a document -- is

165:19 Hacker Exhibit 49 a document that you've seen

165:20 before?

165:21 (Hacker Exhibit Number 49

165:22 is marked for identification.)

165:23 A. Yes, that looks familiar. But I

165:24 mean, it looks familiar. I've probably seen it

165:25 before.

166:01 Q. Okay. And is it your

166:02 understanding that this is a document that was

166:03 provided and produced by the Public Health

166:04 Command, what is now U.S. Army Public Health

166:05 Center?

166:06 A. Because it says USA CHPPM at the

166:07 top, yes.

166:08 Q. Did you have any understanding as

166:09 to the purpose of this document? Was this to

166:10 provide information to audiologists and folks

166:11 in the Hearing Conservation Program, or was

166:12 something like this provided to soldiers?

166:13 A. I would think it's like a health

166:14 education pamphlet for soldiers.

166:15 - 168:03 Leccese, Melissa 2020-10-06

166:15 Q. Okay. So this would have been

166:16 something that was -- I mean, would this have

166:17 been something that was a handout to soldiers

166:18 or made available to soldiers as -- in your

166:19 office or something else?

166:20 A. I -- I never had -- I never handed

166:21 this out actually. I don't know if I've ever

166:22 seen this before honestly. I mean, the format

166:23 looks familiar to me because this is how the

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 296 of 305
166:24 USA CHPPM published their just the facts health

166:25 education documents. There are multiple

167:01 documents of this nature on different topics.

167:02 But I don't really remember ever seeing this

167:03 one on the Combat Arms earplugs.

167:04 Q. Okay. So let's put aside the

167:05 Combat Arms earplugs nature of this for a

167:06 moment. But other just the facts handouts that

167:07 were produced by Public Health Command, were

167:08 those made available to soldiers as handouts in

167:09 your office?

167:10 A. Yes. I had a tinnitus form that I

167:11 used to give out.

167:12 Q. Okay. Were there other -- were

167:13 there other Public Health Command just the

167:14 facts handouts on other types of hearing

167:15 protection devices that you remember being

167:16 handed out to soldiers?

167:17 A. No.

167:18 Q. Okay. And so fair to say, just to

167:19 confirm, you don't have a recollection of

167:20 seeing this just the facts handout from

167:21 Public Health Command relating to the

167:22 Combat Arms earplug. Right?

167:23 A. I do not recall seeing that

167:24 before.

167:25 Q. Okay. And so you don't remember

168:01 this ever being handed out to soldiers or being

168:02 used by anyone in your office?

168:03 A. No.

168:24 - 169:04 Leccese, Melissa 2020-10-06

168:24 Q. Okay. And then again on the next

168:25 page, under user tips on the third bullet,

169:01 there's a statement that says for exceptionally

169:02 large ear canals, fold the opposing plug back

169:03 to enhance proper insertion. Do you see that?

169:04 A. I see that.

170:11 - 173:07 Leccese, Melissa 2020-10-06

170:11 Q. (Mr. Bhimani) Okay. So Re: [172:20 to 173:02]

170:12 Dr. Leccese, if you could look at tab 25, Pltf Obj 402, 403

170:13 please. And for the record, this was referred

170:14 to earlier as Leccese Exhibit 1. I'm also

170:15 going to designate it as Hacker Exhibit 50.

170:16 Let me know when you have that in front of you.

170:17 (Hacker Exhibit Number 50

170:18 is marked for identification.)

170:19 A. I have it in front of me.

170:20 Q. Okay. And if you'll go past the

170:21 letter portion of this and open to the third

170:22 page, you'll see that this is the Department of

170:23 the Army CAM regulation 40-5.

170:24 A. Okay.

170:25 Q. Okay. And you recall that we were

171:01 looking at this regulation -- you were looking

171:02 at this regulation earlier with Plaintiff's

171:03 counsel?

171:04 A. Correct.

171:05 Q. And this is a regulation that you

171:06 drafted. Is that fair?

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171:07 A. I relied heavily upon another

171:08 document that was of similar nature.

171:09 Q. Okay. And this would be -- this

171:10 would have been the regulation that applied at

171:11 Fort Campbell during your time there?

171:12 A. Yes. This is the document that

171:13 was in place starting in -- well, the date is

171:14 January 2008.

171:15 Q. Okay. Thank you. And if you will

171:16 go, please, to page eight, please.

171:17 A. Okay.

171:18 Q. Just let me know when you're

171:19 there. Under subsection 9d, there is a

171:20 reference there to a provision relating to

171:21 fittings and annual integrity checks. Do you

171:22 see that?

171:23 A. Yes.

171:24 Q. Okay. And there's a -- and the

171:25 sentence reads for the record, organic unit

172:01 assets that are CAOHC certified hearing

172:02 technicians are qualified to complete fittings

172:03 and integrity checks. Units without certified

172:04 technicians may request support from the HCPM

172:05 or the Hearing Conservation Clinic. And

172:06 there's a number listed there. Do you see

172:07 that?

172:08 A. Yes.

172:09 Q. And was that a requirement that

172:10 was in force at Fort Campbell during the time

172:11 that this regulation had been enacted?

172:12 A. It was definitely a standard that

172:13 was in place.

172:14 Q. Okay. And we talked earlier about

172:15 how some of the -- about how the annual

172:16 fittings and education would be done by unit

172:17 officers who are trained by you or by folks in

172:18 your group. Do you remember that?

172:19 A. Yes.

172:20 Q. And was one of the reasons for

172:21 that practice, was that a resource or a cost

172:22 issue with the number of people on your team or

172:23 was there something else that was going on

172:24 there, another reason for that?

172:25 A. So that was a common practice to

173:01 use. And yes, it was because of limited

173:02 resources on my staff.

173:03 Q. Okay. All right. And if you'll

173:04 go next to page 15, and it's appendix C. Can

173:05 you just tell me where the data that's

173:06 reflected in appendix C here comes from? Is

173:07 this official military data?

173:14 - 174:03 Leccese, Melissa 2020-10-06

173:14 A. Yes, I'm sure it does come

173:15 from some regulation. I couldn't tell you

173:16 which one off the top of my head.

173:17 Q. Okay. And putting aside the

173:18 specific regulation, my only question is, that

173:19 would have been -- and in the various

173:20 sub-appendices to appendix C, that would have

173:21 been data drawn from some source within the

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 298 of 305
173:22 military. Is that fair?

173:23 A. Yes.

173:24 Q. Okay. And of course you have no

173:25 reason to think that the data in appendix C was

174:01 inaccurate in any way. Right?

174:02 A. No, I don't have any reason to

174:03 believe that.

174:08 - 174:17 Leccese, Melissa 2020-10-06

174:08 Q. So the same questions with respect

174:09 to appendix D, that is would this have been

174:10 drawn from information that was official

174:11 military information?

174:12 A. The following examples -- well, I

174:13 mean, they're all related to military things.

174:14 All of these are military weaponry. And then

174:15 the number two is all examples -- these are

174:16 examples of being exposed to different types of

174:17 military noise.

175:16 - 176:21 Leccese, Melissa 2020-10-06

175:16 Q. All right. Any reason to think

175:17 that any of the information set forth on

175:18 appendix D of Hacker Exhibit 50 is inaccurate?

175:19 A. No, I have no reason to believe

175:20 that.

175:21 Q. Okay. Okay. Final thing on this

175:22 document, on the following page you looked at

175:23 this page with Plaintiff's counsel earlier. Do

175:24 you remember that?

175:25 A. Yes.

176:01 Q. Okay. There's a chart under

176:02 optional items. And the first row of that

176:03 chart says Combat Arms regular. Do you see

176:04 that?

176:05 A. Yes.

176:06 Q. And under fitting requirements it

176:07 says regular size fits most, approximately 80

176:08 percent. Size fitting and instruction sheet

176:09 required. Do you see that?

176:10 A. Yes.

176:11 Q. That size fitting and instruction

176:12 sheet, is it your understanding that that would

176:13 have been the wallet card or the business card

176:14 sized document that you were referring to

176:15 earlier?

176:16 A. Yes.

176:17 Q. Okay. And you're not aware of any

176:18 size fitting or instruction sheets being

176:19 provided in connection with the Combat Arms

176:20 Version II. Right?

176:21 A. No.

177:02 - 179:19 Leccese, Melissa 2020-10-06

177:02 Dr. Leccese, is Hacker Exhibit 51 a true and

177:03 correct copy of a presentation that you

177:04 prepared relating to hearing protection

177:05 devices?

177:06 (Hacker Exhibit Number 51

177:07 is marked for identification.)

177:08 A. It was one I used.

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 299 of 305
177:09 Q. Okay. And when you say it was one

177:10 you used, this would have been a presentation

177:11 that you would have used during an education

177:12 session relating to hearing protection?

177:13 A. Yes.

177:14 Q. Okay. And you'll see on the first

177:15 page, for example, there's some notes in --

177:16 they're typed, but they appear to be notes to

177:17 the presentation. Are those your notes to

177:18 yourself in -- in the presentation deck as kind

177:19 of speaking notes?

177:20 A. It doesn't sound like what I would

177:21 write. So it probably came from the -- this

177:22 presentation probably came from Public Health

177:23 Command. They would often prepare like

177:24 documents for us that we could just pull down

177:25 and use, so...

178:01 Q. So does that -- does that sound --

178:02 does that appear to you to be a note from

178:03 Public Health Command and not a note that you

178:04 would have made directly yourself?

178:05 A. Yes, it does appear to be from a

178:06 different source than myself. So probably

178:07 Public Health Command.

178:08 Q. Okay. Well, so if you look at the

178:09 second note on page one of Exhibit 51, it

178:10 says -- for the record it says your primary

178:11 hearing protector should not be the disposable

178:12 foam earplugs. Those are not for long-term

178:13 use. All soldiers should be fit with preformed

178:14 hearing protection. Do you see that?

178:15 A. Yes.

178:16 Q. Is that a statement that's -- is

178:17 that a statement you agree with?

178:18 A. I do agree with that, yes.

178:19 Q. And can you just explain why that

178:20 is the case?

178:21 A. So disposable foam earplugs don't

178:22 require a medical fitting. However, they are

178:23 very commonly improperly inserted. And that's

178:24 the reason. Just because we want to make sure

178:25 that the soldier is inserting the earplug

179:01 correctly.

179:02 Q. Okay. And -- and the slide here

179:03 says that preformed earplugs are recommended.

179:04 Do you see that?

179:05 A. Yes.

179:06 Q. One of the reasons is that a

179:07 medical fit is required, and it says under

179:08 advantages most effective and least safety

179:09 risk. Do you see that?

179:10 A. I see that.

179:11 Q. And well, you agree that a medical

179:12 fit was required for preformed earplugs and it

179:13 was not required for foam earplugs?

179:14 A. That is true.

179:15 Q. Okay. And would you agree that

179:16 that is one advantage of a preformed earplug

179:17 over a disposable foam earplug is the fitting

179:18 that is conducted in connection with the use of

179:19 the earplug?

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179:21 - 180:06 Leccese, Melissa 2020-10-06

179:21 A. Well, it depends on how you look

179:22 at it.

179:23 Q. And how so?

179:24 A. If you look at it in terms of

179:25 safety, it's an advantage. If you look at it

180:01 in terms of efficiency, then it would be a

180:02 disadvantage.

180:03 Q. Okay. But in terms of safety, you

180:04 would agree that that is one advantage of a

180:05 preformed earplugs over a foam earplug?

180:06 A. Yes.

180:07 - 180:12 Leccese, Melissa 2020-10-06

180:07 Q. Okay. And so under advantages it

180:08 says most effective and least safety risk.

180:09 Would you agree that a preformed earplug is

180:10 more effective and entails less safety risk

180:11 than a disposable foam earplug when medically

180:12 fit?

180:14 - 180:17 Leccese, Melissa 2020-10-06

180:14 A. Well, if a foam earplug is

180:15 inserted correctly, then it's going to provide

180:16 adequate protection. It's just a matter of if

180:17 it's inserted into the ear properly.

181:18 - 183:13 Leccese, Melissa 2020-10-06

181:18 Q. Okay. All right. And then just Re: [182:19 to 183:01]

181:19 one other slide that I want to ask you about. Pltf Obj 802,702

181:20 It's on page four. And do you see page four is

181:21 a slide that says foam earplugs not recommended

181:22 at the top. Do you see that?

181:23 A. Yes.

181:24 Q. And under disadvantages it says

181:25 results in high incidence of noise injury due

182:01 to poor insertion. Roll down required. Do you

182:02 see that?

182:03 A. I see that.

182:04 Q. And is that a summary of the point

182:05 that you were making just a few minutes ago

182:06 about an incidence of noise injury when a foam

182:07 earplug is not inserted properly?

182:08 A. Yes. Exactly.

182:09 Q. Okay. When it says roll down

182:10 required, do you have an understanding of what

182:11 that means?

182:12 A. Yes.

182:13 Q. And what is that?

182:14 A. So you have to -- the soldier has

182:15 to physically manipulate that earplug in order

182:16 to get it to a size where it will initially go

182:17 into the ear canal. And once it's in there,

182:18 then it expands to its size -- full size.

182:19 Q. Okay. And during your time at

182:20 Fort Campbell, did you personally observe

182:21 incidences of noise injury due to the poor

182:22 insertion of foam earplugs? Is that something

182:23 that you saw?

182:24 A. I had soldiers come into the

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182:25 clinic with hearing loss that reported their

183:01 foam earplug fell out of their ear, yes.

183:02 Q. Okay. All right. If you'll go to

183:03 the next tab, we will mark this one as Hacker

183:04 Exhibit 52. And this was previously referred

183:05 to as Leccese Exhibit 3. And my first question

183:06 will be, Dr. Leccese, whether you recognize

183:07 this document as a true and accurate copy of a

183:08 presentation deck you would have used during an

183:09 education presentation related to the Hearing

183:10 Conservation Program?

183:11 (Hacker Exhibit Number 52

183:12 is marked for identification.)

183:13 A. Yes.

184:09 - 185:23 Leccese, Melissa 2020-10-06

184:09 Q. Yeah. And just so now that you're Re: [184:25 to 185:09]

184:10 in the right document, you would agree that Pltf Obj 402,403

184:11 this is the true and correct copy of a

184:12 presentation deck you would have used during an

184:13 education session as part of the Hearing

184:14 Conservation Program?

184:15 A. Yes.

184:16 Q. Okay. And yes, if you'll go to

184:17 page eight, there's a slide here that says --

184:18 for the record, I'll read it, the four P's of

184:19 NIHL, painless, progressive, permanent,

184:20 preventable. Do you see that?

184:21 A. Yes.

184:22 Q. And NIHL, you said before, that's

184:23 noise-induced hearing loss?

184:24 A. Correct.

184:25 Q. Okay. And it says that -- under

185:01 that it says hearing loss remains the most

185:02 common work-related disability. And VA

185:03 continues to identify hearing loss as the most

185:04 common disability associated with military

185:05 service. Do you see that?

185:06 A. I see that.

185:07 Q. And is that an accurate statement

185:08 to the best of your knowledge?

185:09 A. Yes.

185:10 Q. Okay. We can go ahead to page 17,

185:11 slide 17, please.

185:12 A. Okay.

185:13 Q. Are you there? Okay. And

185:14 actually before we get to 17, if you'll look at

185:15 the prior slide which is 16, it notes that any

185:16 exposure to an intensity of 140 decibels or

185:17 greater may result in permanent NIHL. Do you

185:18 see that?

185:19 A. I see that.

185:20 Q. Okay. And is that an accurate

185:21 statement that an exposure to noise in excess

185:22 of 140 decibels or greater may result in

185:23 permanent noise-induced hearing loss?

185:25 - 186:15 Leccese, Melissa 2020-10-06

185:25 A. So the things that's left out in

186:01 this slide is if you're not wearing hearing

186:02 protection. So if you're wearing hearing

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186:03 protection, you can be exposed to that noise.

186:04 Q. Right. So this is -- this is an

186:05 exposure to noise that is measured without

186:06 hearing protection. So you know, just the

186:07 naked ear essentially. Fair?

186:08 A. I'm sorry. Repeat the question.

186:09 Q. Yeah. So I think what you're

186:10 saying is the -- the slide here on slide 16,

186:11 when it's talking about exposures to noise in

186:12 excess of 140 decibels or greater may result in

186:13 permanent noise-induced hearing loss, that's

186:14 assuming that no hearing protection device is

186:15 being used. Right?

186:17 - 187:15 Leccese, Melissa 2020-10-06

186:17 A. That's correct.

186:18 Q. Okay. And if you'll look -- am I

186:19 correct that there are some -- there is some

186:20 level of noise that cannot be protected against

186:21 with a hearing protection device? Would you

186:22 agree with that?

186:23 A. Yes. There is a level that is

186:24 required on approval by the Surgeon General

186:25 before that exposure is allowed.

187:01 Q. Do you know what that exposure

187:02 level is in decibels?

187:03 A. I don't remember. I used to know.

187:04 I was looking to see if it was in here. I

187:05 can't remember off the top of my head.

187:06 Q. Okay. Well, if you look on -- if

187:07 you just quickly skip to slide 43, do you see

187:08 there's a reference in here that doubling up

187:09 hearing protection for steady-state noises at

187:10 104 decibels or greater?

187:11 A. Yes. For steady-state noise.

187:12 Q. Okay. Is that -- is that decibel

187:13 level the level above which just one hearing

187:14 protection device is not effective or is that

187:15 something different?

187:17 - 188:02 Leccese, Melissa 2020-10-06

187:17 A. So that is the level where it --

187:18 that the Army or wherever this came from had to

187:19 be -- the Army, this regulation -- this is very

187:20 familiar to me. This is a level where the Army

187:21 requires someone to wear double hearing

187:22 protection because single protection is not

187:23 sufficient.

187:24 Q. Okay. And when you say this is a

187:25 level, you're referring to steady-state noises

188:01 at 104 decibels or greater?

188:02 A. Correct.

188:11 - 189:16 Leccese, Melissa 2020-10-06

188:11 Q. Okay. Okay. So just a couple

188:12 more questions, if you'll go back to what we

188:13 were looking at on slide 17. Do you see slide

188:14 17 has some examples of impulse noises and then

188:15 various decibel levels relating thereto?

188:16 A. Correct.

188:17 Q. And again, am I correct that this

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188:18 wouldn't have been data that you independently

188:19 came up with; this would have been drawn from

188:20 other data maintained within the military. Is

188:21 that accurate?

188:22 A. That's accurate. And this is

188:23 impulse noise.

188:24 Q. Right. And you have no reason to

188:25 think any of these numbers or data are

189:01 inaccurate. Fair to say?

189:02 A. No, I don't have any reason to

189:03 think they're inaccurate.

189:04 Q. Okay. And if you'll look at slide

189:05 32, do you see slide 32 has the heading noise

189:06 reduction rating, NRR?

189:07 A. Yes.

189:08 Q. Okay. And then there's the second

189:09 paragraph there that says field testing

189:10 suggests that the true amount of attenuation is

189:11 typically half the listed NRR. Do you see

189:12 that?

189:13 A. Yes.

189:14 Q. As far as you know, is that a true

189:15 statement?

189:16 A. As far as I know, yes.

189:23 - 190:24 Leccese, Melissa 2020-10-06

189:23 Q. Okay. Have you reviewed data,

189:24 military data, or data in scientific literature

189:25 relating to the true amount of attenuation

190:01 being about half of what is listed as the NRR?

190:02 A. Only that. Just that, that it's

190:03 half is about as specific as I have ever delved

190:04 into.

190:05 Q. Okay. All right. So then if

190:06 you'll go back one last time to page 43.

190:07 A. I'm there.

190:08 Q. And so this refers to the use of

190:09 doubled up hearing protection devices when

190:10 steady-state noises is greater than 104

190:11 decibels. Is there a similar level where if a

190:12 soldier anticipates being exposed to impulse

190:13 noise over a certain decibel level, hearing

190:14 protection should also be doubled up in that

190:15 context?

190:16 A. Yes.

190:17 Q. Do you recall what that is?

190:18 A. I don't remember.

190:19 Q. Okay. Would that be published

190:20 somewhere within the -- within the military?

190:21 A. Yeah. It would be in the same

190:22 place as that referenced to the level of noise

190:23 that has to be approved by the Surgeon General

190:24 to be allowed to --

206:02 - 206:16 Leccese, Melissa 2020-10-06

206:02 Q. Okay. Did you report to anybody

206:03 else senior to you any issues relating to

206:04 fitting on the Combat Arms Version II earplug?

206:05 A. No.

206:06 Q. Okay.

206:07 A. If I had -- if I had somebody I

Case 7:20-cv-00137-MCR-GRJ Document 104-1 Filed 03/23/21 Page 304 of 305
206:08 felt really uncomfortable with on them, I

206:09 would -- I would not have given them to them

206:10 myself.

206:11 Q. Okay. You're saying if you

206:12 personally felt uncomfortable with the -- the

206:13 fit that you were able to achieve during the

206:14 fitting, you wouldn't have given them the

206:15 earplug. Is that what you said?

206:16 A. That's what I said, yes.

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