EXHIBIT 1

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 1 of 145
Babeu, Lorraine

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 2 of 145
Babeu, Lorraine 2

Designation Objection Rulings

8:3 - 8:9 Babeu, Lorraine

 8 3 Q. Good morning, ma'am.

 8 4 Could you state your full name

 8 5 for the record, please?

 8 6 A. Lorraine Angela Babeu.

 8 7 Q. And I understand you're a

 8 8 retired lieutenant colonel?

 8 9 A. Yep.

17:15 - 20:21 Babeu, Lorraine

 17 15 Q. Ma'am, if we could, before we

 17 16 got into, you know, if you will, the details

 17 17 of your involvement with the Combat Arms

 17 18 version 2, could you outline for us your

 17 19 service history before your retirement?

 17 20 A. In terms of places that I was

 17 21 assigned?

 17 22 Q. Well, I understand -- maybe it

 17 23 would be simpler if we started with your

 17 24 education.

 17 25 A. Okay.

 18 1 Q. So I understand you got a Ph.D.

 18 2 in 2000 or 2001 from UF?

 18 3 A. 2001, yeah, University of

 18 4 Florida.

 18 5 Q. And how about undergrad, where

 18 6 did you go?

 18 7 A. I started undergrad at Norfolk

 18 8 State University in Virginia.

 18 9 Q. Uh-huh.

 18 10 A. Then I did my master's at

 18 11 Florida State in Tallahassee, Florida, and

 18 12 from there I went on active duty.

 18 13 And some point in active duty I

 18 14 got the -- it's the Army version of a

 18 15 scholarship to go get your Ph.D., and I did

 18 16 that at University of Florida.

 18 17 Q. And when did you go on active

 18 18 duty?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 3 of 145
Babeu, Lorraine 3

 18 19 A. What year? '88.

 18 20 Q. And did you perform functions

 18 21 on bases as an audiologist or an audiology

 18 22 technician?

 18 23 A. As an audiologist.

 18 24 Q. Okay. And what years did you

 18 25 do that, ma'am?

 19 1 A. Pretty much my entire career,

 19 2 from '88 to 2011.

 19 3 Q. Okay.

 19 4 A. Oh, wait. Yeah, my last

 19 5 assignment I wasn't working in audiology, so

 19 6 that would have been 2005 until 2011.

 19 7 Q. Okay. And you were on active

 19 8 duty at the same time when you were going to

 19 9 Florida for your Ph.D.?

 19 10 A. Correct.

 19 11 Q. And when you were going to

 19 12 Florida State for your master's?

 19 13 A. No, I was not active duty. I

 19 14 was in the Reserves, actually.

 19 15 Q. Okay. You got your master's

 19 16 before --

 19 17 A. Right. Yeah.

 19 18 Q. -- you went on active duty?

 19 19 And at what bases were you

 19 20 serving on?

 19 21 A. I started at Fort Devens, then

 19 22 I went to Fort Knox, then I went to Fort Sam,

 19 23 Fort Sam, Houston, for a course.

 19 24 Where did I go after that? No,

 19 25 wait, sorry. It was -- I started at Fort

 20 1 Devens, went to Fort Sam for a course, then

 20 2 went to Fort Knox. And after Fort Knox, I

 20 3 went to Fort Hood in Texas, and then from

 20 4 Fort Hood I went to the University of

 20 5 Florida.

 20 6 From there I went to Aberdeen

 20 7 Proving Ground, and after Aberdeen I went to

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 4 of 145
Babeu, Lorraine 4

 20 8 Northern Virginia Tricare, and I retired from

 20 9 there.

 20 10 Q. Okay. As I understand it,

 20 11 based on your testimony, you retired in about

 20 12 2011?

 20 13 A. Yeah.

 20 14 Q. Okay. And if we could just

 20 15 kind of get a sense of your window of time

 20 16 when you were at Aberdeen Proving Ground.

 20 17 When was that?

 20 18 A. '01 to '05.

 20 19 Q. And what group -- you were in

 20 20 the Army Research Lab there?

 20 21 A. Correct.

25:13 - 25:20 Babeu, Lorraine

 25 13 Q. It looks like you moved into --

 25 14 you returned to a clinical practice at that

 25 15 point?

 25 16 A. Correct.

 25 17 Q. And where do you move to, like,

 25 18 geographically? Where are you located at

 25 19 that point?

 25 20 A. I moved to Tampa.

26:5 - 26:14 Babeu, Lorraine

 26 5 Q. Okay. Have you been an

 26 6 audiologist at the James A. Haley Veterans

 26 7 Hospital since 2012 or so?

 26 8 A. Correct.

 26 9 Q. Okay. And that's a clinical

 26 10 practice where you're caring for vets?

 26 11 A. Correct.

 26 12 Q. That includes conducting

 26 13 audiology exams?

 26 14 A. Correct.

29:13 - 29:22 Babeu, Lorraine

 29 13 Q. The point in time when you're

 29 14 actually doing some research related to

 29 15 hearing protection devices was in this Army

 29 16 Research Lab period of time?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 5 of 145
Babeu, Lorraine 5

 29 17 A. Correct, uh-huh.

 29 18 Q. Okay. When you were on the

 29 19 bases, did you have some role and involvement

 29 20 on the hearing conservation programs on those

 29 21 bases?

 29 22 A. Correct.

48:15 - 49:4 Babeu, Lorraine

 48 15 Passing you, ma'am, P2017, I

 48 16 just want to make sure we have our

 48 17 terminology down.

 48 18 A. Uh-huh.

 48 19 Q. I'd like to direct your

 48 20 attention to .38, and -- oh, I'm sorry, I

 48 21 took you to the wrong page, ma'am. It's .37.

 48 22 I want to make sure we have the terminology

 48 23 down.

 48 24 Real-ear attenuation at

 48 25 threshold testing is testing that's often

 49 1 done on hearing protectors in connection with

 49 2 their testing and approval by manufacturers,

 49 3 fair?

 49 4 A. Yeah.

49:8 - 50:1 Babeu, Lorraine

 49 8 Q. Sitting here today, you don't

 49 9 have a recollection of being involved in any

 49 10 tests, REAT tests, on the Combat Arms

 49 11 version 2?

 49 12 A. No.

 49 13 Q. Okay. And did you have an

 49 14 opportunity before you came in today to look

 49 15 at the tests that you were involved in?

 49 16 A. Yeah.

 49 17 Q. Okay. And --

 49 18 A. Some of it. I didn't go

 49 19 through all that stuff.

 49 20 Q. Okay.

 49 21 A. Okay.

 49 22 Q. So just so I understand your

 49 23 answer, did you have a chance to look, at

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 6 of 145
Babeu, Lorraine 6

 49 24 least on a preliminary basis, at your

 49 25 studies?

 50 1 A. Correct, yeah, I did.

51:5 - 51:9 Babeu, Lorraine

 51 5 So this is a chapter from a

 51 6 textbook on the noise manual. It's called --

 51 7 the chapter is Hearing Protection Devices by

 51 8 a Mr. Elliott Berger.

 51 9 A. Uh-huh.

51:10 - 51:20 Babeu, Lorraine

 51 10 Q. And on .37 it says real --

 51 11 rear -- excuse me. It reads, "Real-ear

 51 12 attenuation at threshold."

 51 13 A. Correct.

 51 14 Q. It says, "The most common and

 51 15 also one of the most accurate HPD attenuation

 51 16 tests is the measurement of real-ear

 51 17 attenuation at threshold, abbreviated REAT."

 51 18 Did I read that correctly,

 51 19 ma'am?

 51 20 A. Correct, yeah.

Re: [51:10-51:20]

Def Obj Hearsay (801, 802)

OVERRULED

52:12 - 52:17 Babeu, Lorraine

 52 12 Q. Okay. Continues, "REAT data

 52 13 are normally viewed as the gold standard to

 52 14 which other types of measurements of

 52 15 attenuation are compared."

 52 16 Did I read that correctly?

 52 17 A. Yes.

Re: [52:12-52:17]

Def Obj Hearsay (801, 802)

OVERRULED

64:4 - 64:7 Babeu, Lorraine

 64 4 Q. Okay. With regard to hearing

 64 5 protection devices, have you ever done REAT

 64 6 testing?

 64 7 A. I don't think so.

66:5 - 67:14 Babeu, Lorraine

 66 5 Passing you, ma'am, P1521, it's

 66 6 a memorandum for, it says, "43EX/4B0X/and

 66 7 civilian personnel from HQ, US Air Force,

 66 8 SG3PB."

 66 9 This is from July 19 of '30

Re: [66:5-67:14]

Def Obj Hearsay (801, 802); Relevance 

(401, 402); Prejudice (403); Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 7 of 145
Babeu, Lorraine 7

 66 10 {sic}, Department of the Air Force

 66 11 headquarters, United States Air Force,

 66 12 Washington, DC.

 66 13 Do you see that, ma'am?

 66 14 A. Uh-huh.

 66 15 Q. Okay. The subject line is

 66 16 "Removal of 3M dual-ended Combat Arms Earplug

 66 17 from inventory," a national identification

 66 18 number, and then it gives a number.

 66 19 And it reads in the first

 66 20 paragraph, "Please verify with all shops on

 66 21 the hearing conservation program and all

 66 22 shops that use hearing protection that any 3M

 66 23 dual-ended earplugs are not being used for

 66 24 hearing protection purposes. These earplugs

 66 25 were found to be defective." And then it

 67 1 continues.

 67 2 Do you see that?

 67 3 A. Yes.

 67 4 Q. It says, "The Air Force stopped

 67 5 purchasing these items from 3M in 2016;

 67 6 however, inventory may remain."

 67 7 Did I read that correctly?

 67 8 A. Yes.

 67 9 Q. Okay. In your capacity at the

 67 10 VA, do you receive notices like this?

 67 11 A. (Witness shakes head.)

 67 12 Q. Okay. Were you aware of this

 67 13 before today?

 67 14 A. No.

69:5 - 69:10 Babeu, Lorraine

 69 5 At any point in time did

 69 6 anybody from Aearo share with you, when you

 69 7 were doing research on this product or even

 69 8 after, that the NRR for this product did not

 69 9 accurately reflect the attenuation that was

 69 10 provided for?

Re: [69:5-69:10]

Def Obj Argumentative, No-Response 

(611, 403); Foundation (602)

OVERRULED

69:12 - 69:22 Babeu, Lorraine

 69 12 THE WITNESS: Say again?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 8 of 145
Babeu, Lorraine 8

 69 13 QUESTIONS BY MR. BUCHANAN:

 69 14 Q. Did anybody from Aearo ever

 69 15 tell you --

 69 16 A. No, huh-uh.

 69 17 Q. -- or advise you --

 69 18 A. No. No.

 69 19 Q. -- of a concern with the NRR

 69 20 that they were stating for their Combat Arms

 69 21 product?

 69 22 A. No, not that I remember, no.

69:23 - 70:3 Babeu, Lorraine

 69 23 Q. Did anyone from Aearo ever tell

 69 24 you that there was a concern with whether

 69 25 their testing had been done properly or in

 70 1 accordance with the standards?

 70 2 A. No, no one ever said that to

 70 3 me.

77:12 - 77:25 Babeu, Lorraine

 77 12 Q. Lieutenant Colonel Babeu, I'd

 77 13 like to now talk to you about your -- the

 77 14 studies that I understand you were involved

 77 15 in.

 77 16 A. Uh-huh.

 77 17 Q. Just to reorient ourselves,

 77 18 we're in that window of time after you got

 77 19 your Ph.D. and then you joined the Army

 77 20 Research Labs.

 77 21 Was that 2002 to 2005? Is that

 77 22 the window of time in your mind?

 77 23 A. No, it was '01 to '05.

 77 24 Q. '01 to '05?

 77 25 A. Uh-huh.

78:2 - 78:23 Babeu, Lorraine

 78 2 Passing you, ma'am, P1553. And

 78 3 P1553 looks like it's two documents that are

 78 4 kind of put together, but it's a sound

 78 5 localization wearing level-dependent HPD,

 78 6 Combat Arms Earplugs, a Lieutenant Colonel

 78 7 Lorraine Babeu --

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 9 of 145
Babeu, Lorraine 9

 78 8 A. Uh-huh.

 78 9 Q. -- Babeu, excuse me --

 78 10 A. Babeu.

 78 11 Q. -- Ph.D. and others.

 78 12 Do you see that?

 78 13 A. Correct.

 78 14 Q. Oh, and there's a -- there's a

 78 15 note at the bottom that says, "NHCA Spectrum,

 78 16 volume 21, supplement 1, 2004," and it looks

 78 17 like it's got a page number.

 78 18 Do you see that?

 78 19 A. Uh-huh.

 78 20 Q. Okay. And would the first page

 78 21 be fairly characterized as an abstract?

 78 22 Study abstract?

 78 23 A. Yes.

79:21 - 79:25 Babeu, Lorraine

 79 21 Q. And did you give a presentation

 79 22 on one of your studies, ma'am --

 79 23 A. Yeah.

 79 24 Q. -- at the NHCA?

 79 25 A. Sure. Sure did.

81:4 - 82:23 Babeu, Lorraine

 81 4 So this -- the period of time

 81 5 when you would have been, you know, doing

 81 6 studies or presenting on them at conferences

 81 7 like that would have been in this time when

 81 8 you were at the Army Research Labs in the

 81 9 early 2000s?

 81 10 A. Uh-huh.

 81 11 Q. Okay. So the abstract here

 81 12 says in the middle, "The US Army recently

 81 13 approved the use of the Combat Arms Earplug,

 81 14 which is an expanded French version of the

 81 15 level-dependent earplug developed at the

 81 16 French-German Institute."

 81 17 Do you see that?

 81 18 A. Correct, uh-huh.

 81 19 Q. And then there's a short

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 10 of 145
Babeu, Lorraine 10

 81 20 summary in the next paragraph.

 81 21 Well, actually, let's just

 81 22 orient ourselves in the study, if you haven't

 81 23 had a chance to refresh on them.

 81 24 It says, "The purpose of this

 81 25 project was to determine the effects of

 82 1 CAE" --

 82 2 Is that Combat Arms Earplug?

 82 3 A. Correct, uh-huh.

 82 4 Q. Okay.

 82 5 -- "on the soldier's ability to

 82 6 localize sound sources in various listening

 82 7 conditions. The participants were seated in

 82 8 the center of an array of 37 loud speakers

 82 9 distributed over three circular rings."

 82 10 A. Right.

 82 11 Q. Okay. You remember that test

 82 12 environment?

 82 13 A. I remember the test

 82 14 environment, okay?

 82 15 Q. I'm sorry, you say you do

 82 16 remember the test environment?

 82 17 A. I remember the test

 82 18 environment, but, again, when I saw this, I

 82 19 was like, oh, I did that. Okay? So I just

 82 20 want you to know.

 82 21 But I remember because of the

 82 22 hostile environment, so-so-so, whatever they

 82 23 called it, yeah.

83:1 - 84:16 Babeu, Lorraine

 83 1 Q. And then there's a short

 83 2 summary on the first page. It says, "Three

 83 3 groups of 12 listeners each were used as

 83 4 participants."

 83 5 It says, "Group 1 used the

 83 6 yellow side of the Combat Arms Earplug,

 83 7 Group 2 used the green side, and Group 3 used

 83 8 the E-A-R foam plug."

 83 9 Do you see that?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 11 of 145
Babeu, Lorraine 11

 83 10 A. Uh-huh.

 83 11 Q. And then it talks about within

 83 12 each group there were four listening

 83 13 conditions and quiet noise and protected and

 83 14 unprotected, right?

 83 15 A. Yeah.

 83 16 Q. Okay. And then is the purpose

 83 17 of this study, if I understand it, I mean,

 83 18 there's a person sitting -- let me just see

 83 19 if I can set it up, and maybe you can

 83 20 elaborate for us.

 83 21 A person is sitting in a

 83 22 chair --

 83 23 A. Uh-huh.

 83 24 Q. -- and there's speakers kind of

 83 25 arranged around them --

 84 1 A. Correct.

 84 2 Q. -- and pointing at them.

 84 3 A. Uh-huh.

 84 4 Q. And sounds are played at that

 84 5 person from different speakers --

 84 6 A. Correct.

 84 7 Q. -- and the person is to

 84 8 identify where they think the sound came

 84 9 from?

 84 10 A. Right.

 84 11 Q. And so what you were doing was

 84 12 you were measuring the success rate of people

 84 13 figuring out where the sound came from with

 84 14 open ears or with closed ears, with different

 84 15 hearing protection devices, fair?

 84 16 A. Right, uh-huh.

84:25 - 85:4 Babeu, Lorraine

 84 25 You see before you now P1510.

 85 1 If you go to .2, there's a cover page that

 85 2 says, "Sound localization with the Combat

 85 3 Arms Earplug."

 85 4 A. Correct.

86:16 - 86:22 Babeu, Lorraine

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 12 of 145
Babeu, Lorraine 12

 86 16 Q. Okay. And so on the next page

 86 17 it says, "The purpose of your research here

 86 18 was to assess the effect of level-dependent

 86 19 hearing protection on the user's ability to

 86 20 localize sounds in quiet noise."

 86 21 Right?

 86 22 A. Right.

88:3 - 88:14 Babeu, Lorraine

 88 3 Q. Okay. If you go to the next

 88 4 page, we see that the Combat Arms was not

 88 5 alone in this study. There was a -- there

 88 6 were so-called foamies or E-A-R foam?

 88 7 A. Right.

 88 8 Q. Okay. Those are the bottom,

 88 9 right?

 88 10 A. Correct.

 88 11 Q. And then there was the

 88 12 single-side French.

 88 13 Do you see that?

 88 14 A. Yes.

91:25 - 92:10 Babeu, Lorraine

 91 25 Q. Okay. If we go to .12, there's

 92 1 a section on earplug fitting.

 92 2 Do you see that?

 92 3 A. Uh-huh.

 92 4 Q. And it says, "Prior to earplug

 92 5 use/treatment, proper earplug insertion was

 92 6 demonstrated." And then, "Unless grossly

 92 7 wrong, the experimenter did not tamper with

 92 8 the fit of the earplug."

 92 9 Right?

 92 10 A. Right.

93:4 - 93:6 Babeu, Lorraine

 93 4 And so were you an experimenter

 93 5 on this study, ma'am?

 93 6 A. Yes.

102:3 - 102:10 Babeu, Lorraine

 102 3 Q. Okay. So the experimenter, I

 102 4 guess in this case you, could pick the sound

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 13 of 145
Babeu, Lorraine 13

 102 5 that you were going to use, and the person

 102 6 was sitting in the chair, whether it was 12

 102 7 or 36, open or closed, and you would evaluate

 102 8 the extent to which they were able to

 102 9 properly localize the sound, right?

 102 10 A. Right. Uh-huh.

102:13 - 103:22 Babeu, Lorraine

 102 13 You graphed out your results

 102 14 and the average errors for each of the angles

 102 15 that people were presented, right?

 102 16 A. Right.

 102 17 Q. Okay. And so across the bottom

 102 18 we have the presentation angles. Going up

 102 19 and down, it's the degrees of error from --

 102 20 versus the presentation angle, right?

 102 21 A. Right.

 102 22 Q. Okay. And it goes from zero to

 102 23 180 going up and zero to 180 across, right?

 102 24 A. Yes.

 102 25 Q. Thank you.

 103 1 And so the legend on the bottom

 103 2 says, "No earplug, single side, CAE Y."

 103 3 Is that the Combat Arms, the

 103 4 yellow end?

 103 5 A. Yes.

 103 6 Q. And CAE G, that would be the

 103 7 green end?

 103 8 A. Correct.

 103 9 Q. And then the E-A-R Classic

 103 10 foam, it looks like, is black. That would be

 103 11 that spongy one that --

 103 12 A. Yes.

 103 13 Q. Okay.

 103 14 -- people sometimes called

 103 15 foamies?

 103 16 A. Yes.

 103 17 Q. Okay.

 103 18 A. Sure do.

 103 19 Q. And you graphed them with

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 14 of 145
Babeu, Lorraine 14

 103 20 colors that actually make us easy to follow

 103 21 this, yellow ends versus green ends, right?

 103 22 A. Right.

106:4 - 106:10 Babeu, Lorraine

 106 4 Q. So you're evaluating it in a

 106 5 quiet environment and then you actually

 106 6 turned up the background noise a little and

 106 7 saw were there changes, right?

 106 8 A. Uh-huh.

 106 9 Q. Is that right?

 106 10 A. Yes.

108:16 - 108:25 Babeu, Lorraine

 108 16 Q. Okay. And then at .19, you

 108 17 summarized and said, "Overall, the

 108 18 level-dependent earplugs performed better

 108 19 than the standard earplug."

 108 20 Right?

 108 21 A. Right.

 108 22 Q. And you said with background

 108 23 noise, overall performance better with all

 108 24 earplugs, right?

 108 25 A. Right.

109:6 - 109:14 Babeu, Lorraine

 109 6 Q. Okay. Let's see, 1560. I'm

 109 7 passing you, ma'am, a copy of P1560.

 109 8 Oh, I should -- you know,

 109 9 before we start talking about a new study,

 109 10 the last study that we looked at, that

 109 11 localization study, apart from the

 109 12 presentation at NHCA, did you publish that in

 109 13 a journal?

 109 14 A. No.

110:17 - 111:7 Babeu, Lorraine

 110 17 Q. Okay. Getting to P1560, ma'am,

 110 18 this is a document that was produced to us by

 110 19 the defendants in this case. Just give it a

 110 20 quick review, ma'am, and satisfy yourself

 110 21 that this is a study that you were actually

 110 22 involved in, if you could.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 15 of 145
Babeu, Lorraine 15

 110 23 A. Yeah.

 110 24 Q. You've read enough to satisfy

 110 25 yourself, ma'am?

 111 1 A. Yeah. Yeah, I remember this

 111 2 one.

 111 3 Q. Okay. And I used a phrase,

 111 4 DPOE.

 111 5 Is that distortion product

 111 6 otoacoustic emissions?

 111 7 A. Correct.

112:15 - 112:20 Babeu, Lorraine

 112 15 Q. And so you conducted a study

 112 16 looking at distortion product otoacoustic

 112 17 emissions following -- or with use of

 112 18 different hearing protection devices before

 112 19 and after being on the range, fair?

 112 20 A. Right.

113:10 - 113:20 Babeu, Lorraine

 113 10 Q. And it says at the bottom here,

 113 11 "Octave band attenuation of the hearing

 113 12 protectors used in the studies -- study

 113 13 values provided by manufacturer, Aearo

 113 14 Company, Inc."

 113 15 Do you see that?

 113 16 A. Yes.

 113 17 Q. Okay. Is that consistent with

 113 18 your memory, ma'am? You reached out to the

 113 19 company for information on attenuation data?

 113 20 A. Right, uh-huh.

115:13 - 116:10 Babeu, Lorraine

 115 13 Q. You had, what was it, about

 115 14 nine subjects, I think, that you tested in

 115 15 this one?

 115 16 A. Yeah, something like that --

 115 17 Q. Okay.

 115 18 A. -- I think it said.

 115 19 Q. And then --

 115 20 A. Yeah, nine.

 115 21 Q. -- you would test -- you would

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 16 of 145
Babeu, Lorraine 16

 115 22 test before firing and then after firing?

 115 23 A. Right.

 115 24 Q. But you tested in consecutive

 115 25 days, right?

 116 1 A. Right.

 116 2 Q. Okay. So a person might be --

 116 3 you might test somebody with the green end

 116 4 day one, two, three, then test the yellow end

 116 5 day four, five, six, then test another

 116 6 headset that's in those graphs. I think the

 116 7 Peltor ComTac was one?

 116 8 A. Yeah. For that, I would really

 116 9 have to dig into exactly how I did it,

 116 10 because that kind of stuff matters.

116:15 - 116:22 Babeu, Lorraine

 116 15 Q. Yeah. As I understand it,

 116 16 ma'am, there were three hearing protectors

 116 17 that were being studied?

 116 18 A. Right.

 116 19 Q. There was an open end, there

 116 20 was a closed end, and then you also studied

 116 21 the ComTac.

 116 22 A. Yeah.

116:23 - 116:24 Babeu, Lorraine

 116 23 Q. Right?

 116 24 A. Peltor, uh-huh.

120:21 - 121:6 Babeu, Lorraine

 120 21 Q. Okay. If we could go to just

 120 22 the discussion, and then maybe we can further

 120 23 elaborate on this.

 120 24 A. Okay.

 120 25 Q. It says on .10 -- I think it's

 121 1 the middle of the first paragraph. It says,

 121 2 "As expected and consistent with the

 121 3 literature, in most instances the DPOE

 121 4 amplitude values were higher before firing

 121 5 and lower after firing."

 121 6 A. Right.

121:9 - 121:11 Babeu, Lorraine

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 17 of 145
Babeu, Lorraine 17

 121 9 Q. And DPOE, that's distortion

 121 10 product otoacoustic emissions, right?

 121 11 A. Right.

121:12 - 121:14 Babeu, Lorraine

 121 12 MR. FIELDS: It's DPOAE.

 121 13 MR. BUCHANAN: Thank you for

 121 14 the clarification.

Re: [121:12-121:14]

Pltf Obj don't need statement of counsel COUNTER WITHDRAWN, 3/11/2021

122:7 - 122:10 Babeu, Lorraine

 122 7 Q. Okay. DPOEs are measuring, you

 122 8 know, hair cell function in the inner ear; is

 122 9 that fair?

 122 10 A. Yeah, okay.

124:8 - 126:6 Babeu, Lorraine

 124 8 Q. "The amplitude values for the

 124 9 level-dependent Combat Arms Earplug and

 124 10 ComTac noise muffs for DPOAE frequencies 500

 124 11 to 2000 hertz were stronger, higher, before

 124 12 weapons fire and lower after weapons fire."

 124 13 Let's pause. Okay?

 124 14 That's an indication to you of

 124 15 what?

 124 16 A. At some point what you would

 124 17 normally -- what would normally be inferred

 124 18 from that is that there was some evidence of

 124 19 decreased ability by the ear.

 124 20 Q. Okay. And then you continue in

 124 21 the sentence. It says, "This could be an

 124 22 indication that although hearing protection

 124 23 was in place, the outer hair cells were

 124 24 affected in some way by the exposure to the

 124 25 impulse noise."

 125 1 Did I read that correctly?

 125 2 A. Right.

 125 3 Q. And then you have a summary at

 125 4 the bottom.

 125 5 Do you see that?

 125 6 Oh, I should read that last

 125 7 sentence. I'm sorry.

 125 8 "At this juncture" -- you

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 18 of 145
Babeu, Lorraine 18

 125 9 continued in the discussion. "At this

 125 10 juncture, this is speculation. It is not

 125 11 clear what the pattern is indicative of, but

 125 12 it is certainly was worth noting."

 125 13 Right?

 125 14 A. Uh-huh.

 125 15 Q. Correct?

 125 16 A. Yes.

 125 17 Q. Okay. And then the summary,

 125 18 you said, "The question of whether frequency

 125 19 response which provides less attenuation in

 125 20 the low frequencies affects the amplitude

 125 21 values of the DPOAE during small arms weapons

 125 22 fire, according to these results, were not

 125 23 statistically significant."

 125 24 Do you see that?

 125 25 A. Yes.

 126 1 Q. "However, there was a trend

 126 2 that appears to indicate that there is an

 126 3 effect of the level-dependent hearing

 126 4 protection on DPOE amplitude. This trend

 126 5 warrants continued study."

 126 6 A. Correct. Uh-huh.

126:7 - 126:12 Babeu, Lorraine

 126 7 Q. Okay. And just to understand,

 126 8 after this point in time of the study you

 126 9 conducted, did you do a further study on

 126 10 DPOAE amplitudes before and after firing?

 126 11 A. No, not before and after

 126 12 firing.

Re: [126:7-126:12]

Pltf Obj beyond the scope of 

clarification counter; also, irrelevant and 

unnecessary

SUSTAINED

126:15 - 126:23 Babeu, Lorraine

 126 15 Q. Okay. Now, this study has a

 126 16 number on the bottom right quarter. It says,

 126 17 "Confidential, subject to protective order."

 126 18 That says 3M_MDL.

 126 19 When those documents are

 126 20 stamped that way, that means they were

 126 21 produced to us by the defendants.

 126 22 Do you see that?

Re: [126:15-126:23]

Def Obj Relevance (402, 402); Prejudice 

(403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 19 of 145
Babeu, Lorraine 19

 126 23 A. Okay. Uh-huh.

126:24 - 127:3 Babeu, Lorraine

 126 24 Q. Do you recall sending your

 126 25 paper with those findings and discussions to

 127 1 Aearo for comment?

 127 2 A. I don't recall, but I'm sure I

 127 3 would have.

Re: [126:24-127:3]

Def Obj Speculation (602)

OVERRULED

132:2 - 132:6 Babeu, Lorraine

 132 2 Q. Okay. Then let's look at the

 132 3 exhibit I just passed you. So P1511, which I

 132 4 have now passed you -- can we have them

 132 5 side by side, please, Mike on the screen?

 132 6 When I say "them," P1560 and P1511.

132:17 - 133:20 Babeu, Lorraine

 132 17 Q. Okay. I think we have a

 132 18 stipulation from counsel that the initials

 132 19 EHB refer to Elliott Berger.

 132 20 Do you know Elliott Berger

 132 21 from -- do you know who Elliott Berger is?

 132 22 A. Yes.

 132 23 Q. Okay. He was with Aearo

 132 24 Corporation?

 132 25 A. Yes.

 133 1 Q. Okay. You interacted with him

 133 2 from time to time?

 133 3 A. Yes, but Elliott was -- for us,

 133 4 he was outside of Aearo, okay, in the sense

 133 5 that he -- in the audiology community, he's

 133 6 written a lot of stuff, and so he would be

 133 7 somebody you would turn to for guidance.

 133 8 Q. I see. Okay.

 133 9 And so there was some outreach

 133 10 to Elliott Berger, and we have his comments

 133 11 throughout this document. We need to scroll

 133 12 through them quickly.

 133 13 If we're looking on the left,

 133 14 1511.3.4 -- just scroll through them quickly,

 133 15 Mike, for the witness. .5 we see comments

 133 16 from them. .6 we see comments. .7 and so on

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 20 of 145
Babeu, Lorraine 20

 133 17 throughout, and then we get to the

 133 18 discussion.

 133 19 Do you see that?

 133 20 A. Uh-huh.

135:4 - 136:6 Babeu, Lorraine

 135 4 MAJOR EVANS: So why did you

 135 5 send this to Elliott Berger?

 135 6 THE WITNESS: Because the -- at

 135 7 the lab, we had a review -- a

 135 8 peer-review process: somebody outside

 135 9 the organization, somebody within the

 135 10 team, within HRED, and then somebody

 135 11 outside of HRED. So within HRED but

 135 12 outside of HRED -- I mean, I'm sorry,

 135 13 outside of the hearing and vision

 135 14 people.

 135 15 So sometimes we'd ask the

 135 16 vision people to read it just for

 135 17 clarity and things of that nature, and

 135 18 then we'd ask somebody else within

 135 19 HRED, and then you had to go outside

 135 20 of the -- of the ARL. You had to go

 135 21 outside of that.

 135 22 And so when -- so Elliott being

 135 23 the person that -- I mean, he's

 135 24 written books on hearing conservation

 135 25 and all this kind of stuff. I still

 136 1 have his manual that we -- you know,

 136 2 if you refer to it.

 136 3 So this was for me just part of

 136 4 the review process, getting his input

 136 5 and just trying to make the document

 136 6 stronger.

141:6 - 141:9 Babeu, Lorraine

 141 6 Q. Okay. And so you had this

 141 7 interaction with Mr. Berger about your paper

 141 8 in January of 2005, correct?

 141 9 A. Correct.

153:12 - 154:20 Babeu, Lorraine

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 21 of 145
Babeu, Lorraine 21

 153 12 Now, I'm going to pass you,

 153 13 ma'am, what we're marking as 1568,

 153 14 Plaintiff's Exhibit 1568.

 153 15 A. Okay.

 153 16 Q. It's a memo from Elliott Berger

 153 17 to a Richard Knauer, some Aearo folks, on

 153 18 March 2, 2005. It's the February monthly

 153 19 report, hearing protection, technical

 153 20 department.

 153 21 Did you know Richard Knauer?

 153 22 A. No.

 153 23 Q. Okay. You've told us about

 153 24 Elliott H. Berger --

 153 25 A. Right.

 154 1 Q. -- and we did see the EHB in

 154 2 the version of the document we're not

 154 3 permitted to examine you about, correct?

 154 4 A. Right.

 154 5 Q. Okay. And then it says -- if

 154 6 we go to .4, there's a heading that says

 154 7 "Reviews."

 154 8 It says, "A paper by Lorraine

 154 9 Babeu on the Combat Arms Earplugs was

 154 10 reviewed and corrected so that it presented

 154 11 the product in a proper light."

 154 12 A. Uh-huh.

 154 13 Q. Do you see that?

 154 14 A. Uh-huh.

 154 15 Q. Did Mr. Berger tell you that's

 154 16 what he was doing?

 154 17 A. No. I wasn't aware of this,

 154 18 no.

 154 19 Q. Okay.

 154 20 A. Huh-uh.

154:21 - 154:23 Babeu, Lorraine

 154 21 Q. Did you know that in the early

 154 22 2000s Mr. Berger reported in to the marketing

 154 23 group at Aearo?

Re: [154:21-154:23]

Def Obj Foundation (602)

OVERRULED

154:25 - 155:1 Babeu, Lorraine Re: [154:25-155:1] OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 22 of 145
Babeu, Lorraine 22

 154 25 THE WITNESS: I just knew

 155 1 Elliott worked at 3M.

Def Obj Foundation (602)

155:2 - 155:3 Babeu, Lorraine

 155 2 QUESTIONS BY MR. BUCHANAN:

 155 3 Q. Fair.

155:4 - 155:6 Babeu, Lorraine

 155 4 He never told you that he was

 155 5 trying to review your paper to present the

 155 6 Combat Arms in a proper light, right?

Re: [155:4-155:6]

Def Obj Argumentative (611, 403); 

Foundation (602)

OVERRULED

155:8 - 155:14 Babeu, Lorraine

 155 8 THE WITNESS: No. They

 155 9 wouldn't have let me use him if we

 155 10 knew anything like that.

 155 11 QUESTIONS BY MR. BUCHANAN:

 155 12 Q. And what do you mean by that?

 155 13 A. Just it would have been a

 155 14 conflict.

Re: [155:8-155:14]

Def Obj Argumentative (611, 403); 

Foundation (602)

OVERRULED

158:24 - 159:1 Babeu, Lorraine

 158 24 Do you recall reaching out and

 158 25 trying to confirm facts and information on

 159 1 the Combat Arms from Mr. Berger?

159:3 - 159:10 Babeu, Lorraine

 159 3 THE WITNESS: Uh-huh. I recall

 159 4 that we did that in the beginning

 159 5 because I think he was the one that

 159 6 kind of had the most information.

 159 7 QUESTIONS BY MR. BUCHANAN:

 159 8 Q. Okay. You viewed him as a

 159 9 resource on the Combat Arms?

 159 10 A. Right. Uh-huh.

161:9 - 161:15 Babeu, Lorraine

 161 9 Q. Okay. And just so we're clear,

 161 10 the localization study and the DPOAE study

 161 11 were not REAT studies, correct?

 161 12 A. No, they were not REAT studies.

 161 13 Q. Different type of study,

 161 14 correct?

 161 15 A. Right, uh-huh.

161:16 - 161:21 Babeu, Lorraine Re: [161:16-161:21] OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 23 of 145
Babeu, Lorraine 23

 161 16 Q. Okay. So in terms of the gold

 161 17 standard studies that Mr. Berger talked about

 161 18 in his textbook, REAT studies under those

 161 19 ANSI standards, you were not involved in any

 161 20 such studies?

 161 21 A. No.

Def Obj Foundation (602)

171:4 - 171:17 Babeu, Lorraine

 171 4 Fair, ma'am, based on your

 171 5 review of at least Mr. Berger's call logs,

 171 6 that you reached out over the years when you

 171 7 had questions about things like NRRs, right?

 171 8 A. Right. Uh-huh.

 171 9 Q. ANSI standards?

 171 10 A. (Witness nods head.)

 171 11 Q. Correct?

 171 12 A. Yeah.

 171 13 Q. Attenuation data on the CAE?

 171 14 A. CAE, yeah.

 171 15 Q. Right?

 171 16 Your research paper?

 171 17 A. Yeah.

171:18 - 171:21 Babeu, Lorraine

 171 18 Q. In all those interactions with

 171 19 Mr. Berger over the years, did he ever tell

 171 20 you that they determined through their REAT

 171 21 testing that the CAEv2 had problems?

Re: [171:18-171:21]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

OVERRULED

171:23 - 171:23 Babeu, Lorraine

 171 23 THE WITNESS: No.

Re: [171:23-171:23]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

OVERRULED

171:24 - 172:2 Babeu, Lorraine

 171 24 QUESTIONS BY MR. BUCHANAN:

 171 25 Q. Did he ever tell you that it

 172 1 only provides a fraction of the NRR they

 172 2 claimed?

Re: [171:24-172:2]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

SUSTAINED

172:4 - 172:8 Babeu, Lorraine

 172 4 THE WITNESS: No.

 172 5 QUESTIONS BY MR. BUCHANAN:

 172 6 Q. Less than 10 percent of the

 172 7 claimed protection, did he ever tell you

Re: [172:4-172:8]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 24 of 145
Babeu, Lorraine 24

 172 8 that?

172:10 - 172:15 Babeu, Lorraine

 172 10 THE WITNESS: No.

 172 11 QUESTIONS BY MR. BUCHANAN:

 172 12 Q. Did he ever tell you that he

 172 13 and his lab manipulated the testing to get

 172 14 the data they sent you?

 172 15 A. No.

Re: [172:10-172:15]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

SUSTAINED

172:24 - 173:1 Babeu, Lorraine

 172 24 Q. Did he ever tell you that the

 172 25 CAEv2 shouldn't have been sold to the

 173 1 military without fixing the problems?

Re: [172:24-173:1]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

OVERRULED

173:3 - 173:3 Babeu, Lorraine

 173 3 THE WITNESS: No. Huh-uh. No.

Re: [173:3-173:3]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

OVERRULED

173:11 - 173:13 Babeu, Lorraine

 173 11 Q. Did he ever tell you that

 173 12 they'd internally determined it wasn't really

 173 13 protective on the range?

Re: [173:11-173:13]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

OVERRULED

173:15 - 173:15 Babeu, Lorraine

 173 15 THE WITNESS: No.

Re: [173:15-173:15]

Def Obj Argumentative, Misstates, 

Vague (403); Foundation (602)

OVERRULED

174:1 - 174:12 Babeu, Lorraine

 174 1 Q. Did he ever tell you that in

 174 2 order to get good results you had to fold

 174 3 back the flanges on everybody who was using

 174 4 it?

 174 5 MR. FIELDS: Objection to form.

 174 6 THE WITNESS: I don't think so.

 174 7 QUESTIONS BY MR. BUCHANAN:

 174 8 Q. And that's not the way you

 174 9 tested it in people, right?

 174 10 A. I inserted it the way we

 174 11 normally insert earplugs. I didn't do any

 174 12 special thing.

174:13 - 174:18 Babeu, Lorraine

 174 13 Q. Right.

 174 14 The way we saw those pictures

 174 15 earlier today --

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 25 of 145
Babeu, Lorraine 25

 174 16 A. Right.

 174 17 Q. -- that's the way you did it?

 174 18 A. Right.

174:19 - 174:22 Babeu, Lorraine

 174 19 Q. You obviously cared a lot about

 174 20 the service members who you oversaw on the

 174 21 bases over the years, right?

 174 22 A. Correct.

Re: [174:19-174:22]

Def Obj Relevance (401, 402) OBJECTION WITHDRAWN, 

3/11/2021

174:23 - 174:25 Babeu, Lorraine

 174 23 Q. Continue to care about the

 174 24 veterans that you see?

 174 25 A. Yes.

Re: [174:23-174:25]

Def Obj Relevance (401, 402), 

Cumulative (403)

OBJECTION WITHDRAWN, 

3/11/2021

174:26 - 175:1 Babeu, Lorraine

 175 1 Q. You wouldn't want to use

175:1 - 175:4 Babeu, Lorraine

 175 1 Q. You wouldn't want to use

 175 2 anything that would have comprised their

 175 3 safety for hearing protection, would you?

 175 4 A. No.

Re: [175:1-175:4]

Def Obj 403 OBJECTION WITHDRAWN, 

3/11/2021

175:5 - 175:8 Babeu, Lorraine

 175 5 Q. So fair to say that Mr. Berger

 175 6 never brought any information raising those

 175 7 safety concerns to your attention?

 175 8 A. No, he didn't.

Re: [175:5-175:8]

Def Obj Argumentative, Vague (403); 

Foundation (602)

OVERRULED

175:11 - 175:12 Babeu, Lorraine

 175 11 Q. Nobody else from Aearo ever did

 175 12 that?

Re: [175:11-175:12]

Def Obj Vague, Argumentative ( 403); 

Foundation (602)

OVERRULED

175:14 - 175:14 Babeu, Lorraine

 175 14 THE WITNESS: No, huh-uh.

Re: [175:14-175:14]

Def Obj Vague, Argumentative ( 403); 

Foundation (602)

OVERRULED

176:3 - 176:6 Babeu, Lorraine

 176 3 Q. I take it you wouldn't have put

 176 4 people on the range firing guns if you were

 176 5 aware of a protection concern?

 176 6 A. You can't do that.

176:24 - 177:2 Babeu, Lorraine

 176 24 Did you know that in order to

 176 25 get the NRRs they claimed, they had to flip

 177 1 back the flanges for everyone they used it

Re: [176:24-177:2]

Def Obj Vague, 

Argumentative,Misstates (403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 26 of 145
Babeu, Lorraine 26

 177 2 in?

177:4 - 177:4 Babeu, Lorraine

 177 4 THE WITNESS: No. No.

Re: [177:4-177:4]

Def Obj Vague, Argumentative, 

Misstates (403); Foundation (602)

OVERRULED

177:13 - 177:19 Babeu, Lorraine

 177 13 Q. Do you remember people being

 177 14 trained that way, that everybody had to fold

 177 15 the flanges back?

 177 16 A. No.

 177 17 Q. And that's not the way you ran

 177 18 your tests, right?

 177 19 A. Right, uh-huh.

179:5 - 179:7 Babeu, Lorraine

 179 5 MR. BUCHANAN: Okay. Thank

 179 6 you. I have no further questions at

 179 7 this time.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 27 of 145
Hacker, E 2020-09-25

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 28 of 145
Hacker, E 2020-09-25 2

Designation Objection Rulings

9:20 - 9:21 Hacker, E 2020-09-25

 9 20 having been first duly sworn, was examined and

 9 21 testified as follows:

Re: [9:20-9:21]

Def Obj Relevance (401, 402) DESIGNATION WITHDRAWN, 

3/12/2021

9:22 - 10:6 Hacker, E 2020-09-25

 9 22 

 9 23 EXAMINATION BY MR. CASTIGLIA:

 9 24 Q. Good morning. My name is Craig

 9 25 Castiglia and I represent the defendants in this

 10 1 case, which are 3M and the various Aearo entities

 10 2 that have been sued by plaintiffs like

 10 3 Stephen Hacker.

 10 4 Would you please state your full name

 10 5 for the record?

 10 6 A. Eileen Rose Hacker.

10:14 - 10:16 Hacker, E 2020-09-25

 10 14 Q. Okay. And have you ever had your

 10 15 deposition taken before?

 10 16 A. No.

Re: [10:14-10:16]

Def Obj Relevance (401, 402) DESIGNATION WITHDRAWN, 

3/12/2021

11:20 - 11:25 Hacker, E 2020-09-25

 11 20 Q. Okay. Ms. Hacker, what is your date

 11 21 of birth?

 11 22 A. 

 11 23 Q. Okay. And help me avoid mental math.

 11 24 That makes you how old?

 11 25 A. Thirty-five.

Birthdate redacted.

15:8 - 15:18 Hacker, E 2020-09-25

 15 8 Q. Okay. Would you describe your level

 15 9 of education for me?

 15 10 A. A bachelor's degree of science in

 15 11 accounting.

 15 12 Q. Where did you get your bachelor's

 15 13 degree?

 15 14 A. Colorado Technical University.

 15 15 Q. And what do you do for a living?

 15 16 A. Right now I am a mother and an

 15 17 accountant, but with schools the way they are, a

 15 18 stay-at-home mom.

Re: [15:8-15:18]

Def Obj Relevance (401, 402), Prejudice 

(403)

OBJECTIONS WITHDRAWN, 

3/12/2021

16:6 - 16:14 Hacker, E 2020-09-25

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 29 of 145
Hacker, E 2020-09-25 3

 16 6 Q. Okay. Are you presently married?

 16 7 A. No.

 16 8 Q. When did you get married to

 16 9 Mr. Hacker?

 16 10 A. In 2007.

 16 11 Q. And what date did you separate or

 16 12 divorce from Mr. Hacker?

 16 13 A. August 11th, 2020, was our official

 16 14 divorce.

16:15 - 16:22 Hacker, E 2020-09-25

 16 15 Q. Have you had any other marriages?

 16 16 A. My first marriage.

 16 17 Q. What was the name of your prior

 16 18 spouse?

 16 19 A. Shaun Shepherd.

 16 20 Q. And what date did you divorce from

 16 21 Mr. Shepherd?

 16 22 A. November 2006.

Re: [16:15-16:22]

Pltf Obj 402; 403

SUSTAINED

16:25 - 17:3 Hacker, E 2020-09-25

 16 25 Q. Would you describe for me your

 17 1 extracurricular activities or your hobbies?

 17 2 A. Photography, reading, hiking,

 17 3 camping.

Re: [16:25-17:3]

Def Obj Relevance (401, 402)

SUSTAINED

19:19 - 21:7 Hacker, E 2020-09-25

 19 19 Q. Are you represented by counsel at

 19 20 this deposition today?

 19 21 A. No.

 19 22 Q. What did you do to prepare for this

 19 23 deposition?

 19 24 A. Made sure I had the contact. I did

 19 25 speak with my ex-husband's lawyers just to make

 20 1 sure that I had all the information.

 20 2 Q. When did you speak with Mr. Hacker's

 20 3 lawyers?

 20 4 A. Yesterday.

 20 5 Q. Did you speak with them before

 20 6 yesterday?

 20 7 A. A couple weeks ago, to try and set up

 20 8 this deposition.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 30 of 145
Hacker, E 2020-09-25 4

 20 9 Q. How often did you -- or how many

 20 10 times total did you meet or speak to Mr. Hacker's

 20 11 lawyers?

 20 12 A. Two, maybe three times.

 20 13 Q. Did you discuss your deposition with

 20 14 them over the phone or by other means of

 20 15 communication?

 20 16 A. Phone.

 20 17 Q. Did you talk with Mr. Hacker's

 20 18 lawyers about his hearing loss?

 20 19 A. They asked me if I was -- had certain

 20 20 remembrance or recollections to make sure that I

 20 21 had everything that I needed.

 20 22 Q. Did you talk with Mr. Hacker's

 20 23 counsel about the Combat Arms Earplug Version 2?

 20 24 A. No.

 20 25 Q. Did Mr. Hacker's counsel ask if you

 21 1 had any opinions about his case?

 21 2 A. Opinions? I don't remember the word

 21 3 "opinion" being used.

 21 4 Q. What did you tell them that you

 21 5 recalled about Mr. Hacker's hearing loss?

 21 6 A. That it is very apparent, it became

 21 7 more apparent over the years.

21:8 - 21:16 Hacker, E 2020-09-25

 21 8 Q. Have Mr. Hacker's counsel asked you

 21 9 to appear at trial for this case?

 21 10 A. No.

 21 11 Q. Have they talked with you about that

 21 12 possibility?

 21 13 A. No.

 21 14 Q. Did they share any documents with you

 21 15 to prepare for this deposition?

 21 16 A. No.

Re: [21:8-21:16]

Pltf Obj 402; 

SUSTAINED

21:17 - 22:2 Hacker, E 2020-09-25

 21 17 Q. Did you discuss your deposition with

 21 18 anyone other than Mr. Hacker's counsel?

 21 19 A. Mr. Hacker.

 21 20 Q. What did you talk about with

Re: [21:17-22:2]

Def Obj Hearsay (801, 802) OBJECTIONS WITHDRAWN, 

3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 31 of 145
Hacker, E 2020-09-25 5

 21 21 Mr. Hacker relating to the deposition?

 21 22 A. Letting him know when it was so

 21 23 that -- and talking with him about scheduling so

 21 24 that I knew that I would be able to do it.

 21 25 Q. Did you discuss the contents of your

 22 1 testimony for the deposition?

 22 2 A. No.

27:7 - 27:7 Hacker, E 2020-09-25

 27 7 Q. I think some of the dates overlapped

27:8 - 27:18 Hacker, E 2020-09-25

 27 8 earlier. So just to be clear, could you walk me

 27 9 through where you lived with Mr. Hacker?

 27 10 A. We lived in Kentucky, Tennessee,

 27 11 Colorado, Virginia, North Carolina and Nevada.

 27 12 Q. Okay. And what years did you live

 27 13 with Mr. Hacker?

 27 14 A. 2007 to 2020.

 27 15 Q. And for roughly each year, how many

 27 16 months per year did you live with Mr. Hacker?

 27 17 A. Unless he was deployed or we had

 27 18 moved before him, every month of the year.

27:24 - 28:12 Hacker, E 2020-09-25

 27 24 Q. (BY MR. CASTIGLIA:) You mentioned

 27 25 that you and Mr. Hacker are divorced or separated.

 28 1 Who -- who initiated the divorce?

 28 2 A. I did.

 28 3 Q. And why did you do that?

 28 4 A. Because it was not working.

 28 5 Q. And what was the cause of the

 28 6 dysfunction of the marriage?

 28 7 A. There are many reasons. I do not see

 28 8 why that is valid to this deposition.

 28 9 Q. Could you walk me through some of the

 28 10 reasons?

 28 11 A. I do not see why that is valid to

 28 12 this deposition.

Re: [27:24-28:12]

Pltf Obj 402; 403

SUSTAINED

28:17 - 29:9 Hacker, E 2020-09-25

 28 17 Q. Did you divorce Mr. Hacker because of

 28 18 his alleged hearing loss?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 32 of 145
Hacker, E 2020-09-25 6

 28 19 A. I would say that the hearing loss

 28 20 definitely contributed to many, many of the fights,

 28 21 but it is not the main reason. But it is not not

 28 22 the reason.

 28 23 Q. Could you explain how it contributed

 28 24 to fights?

 28 25 A. He would not be able to hear me.

 29 1 There were times where he misunderstood what I

 29 2 said.

 29 3 We used to have date night every

 29 4 week. It turned into once a month. It turned into

 29 5 once every few months because he couldn't handle

 29 6 the noise, to the point that we were never going

 29 7 out, we were not spending the time together because

 29 8 of his hearing loss. Many fights were because of

 29 9 it.

29:10 - 29:10 Hacker, E 2020-09-25

 29 10 Q. But it wasn't the sole reason that --

29:11 - 29:15 Hacker, E 2020-09-25

 29 11 excuse me. Let me start over. Mr. Hacker's

 29 12 hearing loss wasn't the only reason that you

 29 13 divorced him?

 29 14 A. It was not the sole reason, but it

 29 15 was not not a reason.

29:16 - 29:18 Hacker, E 2020-09-25

 29 16 Q. Would you have divorced him -- let me

 29 17 retract that. Would you -- would you have divorced

 29 18 him if he did not have hearing loss?

Re: [29:16-29:18]

Pltf Obj 402; 403

OVERRULED

29:23 - 29:23 Hacker, E 2020-09-25

 29 23 A. I can't answer that question.

29:24 - 30:4 Hacker, E 2020-09-25

 29 24 Q. Did you divorce Mr. Hacker because of

 29 25 his alleged tinnitus?

 30 1 A. Like I said, this was not because of

 30 2 or not because of. It was part of the contributing

 30 3 factor, and I am not going to go further into my

 30 4 personal life.

30:5 - 30:17 Hacker, E 2020-09-25

 30 5 Q. Have you or Mr. Hacker ever had an

Re: [30:5-30:17]

Pltf Obj 403; 403

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 33 of 145
Hacker, E 2020-09-25 7

 30 6 extramarital affair?

 30 7 A. No.

 30 8 Q. Did you ever discuss divorcing or

 30 9 separating Mr. Hacker before this year?

 30 10 A. There was one time where we almost

 30 11 did get divorced. We worked it out.

 30 12 Q. And when was that?

 30 13 A. 2010.

 30 14 Q. And why did you almost get divorced

 30 15 in 2010?

 30 16 A. Again, I will not go further into my

 30 17 personal life.

32:12 - 32:23 Hacker, E 2020-09-25

 32 12 Q. Okay. Is there any period of time

 32 13 that you knew Mr. Hacker and he did not have

 32 14 hearing loss?

 32 15 A. He has always had some version of

 32 16 hearing issues. They steadily got worse.

 32 17 Q. Okay. So when you -- when you met

 32 18 Mr. Hacker, what caused you to learn that he had

 32 19 hearing loss?

 32 20 A. That we had discussions as we were

 32 21 getting to know each other, he told me about his

 32 22 deployments, and that there was -- he had tinnitus.

 32 23 It was an obvious issue.

33:16 - 33:21 Hacker, E 2020-09-25

 33 16 Q. And had Mr. Hacker ever complained to

 33 17 you about his hearing loss?

 33 18 A. Yes.

 33 19 Q. How often?

 33 20 A. Whenever his tinnitus acts up and

 33 21 when he can't hear me.

34:13 - 34:25 Hacker, E 2020-09-25

 34 13 Q. (BY MR. CASTIGLIA:) How -- how often

 34 14 did Mr. Hacker experience signs of tinnitus?

 34 15 A. We were married for thirteen years.

 34 16 I don't even know how to estimate, guesstimate how

 34 17 often.

 34 18 Q. Did he complain about his tinnitus

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 34 of 145
Hacker, E 2020-09-25 8

 34 19 more than once a week?

 34 20 A. Again, I don't know how to answer

 34 21 that question. There were some times where it was

 34 22 worse, some times where it was more often.

 34 23 Q. So you don't remember how often per

 34 24 week Mr. Hacker complained about his tinnitus or

 34 25 hearing loss?

35:1 - 35:1 Hacker, E 2020-09-25

 35 1 MR. BLAIR: Object to foundation.

Re: [35:1-35:1]

Def Obj Relevance (401, 402)

DESIGNATION WITHDRAWN, 

3/12/2021

35:2 - 35:3 Hacker, E 2020-09-25

 35 2 A. Over thirteen years, I do not

 35 3 remember how often per week.

35:4 - 35:8 Hacker, E 2020-09-25

 35 4 Q. (BY MR. CASTIGLIA:) Or on average,

 35 5 just to give a --

 35 6 A. Again, we were married for thirteen

 35 7 years. I don't even know how to quantitative --

 35 8 estimate that.

36:13 - 36:18 Hacker, E 2020-09-25

 36 13 Q. (BY MR. CASTIGLIA:) Ms. Hacker, you

 36 14 mentioned that you noticed a change between

 36 15 Mr. Hacker's hearing after his first deployment

 36 16 during your marriage. Would you describe that as a

 36 17 sudden change or a gradual change?

 36 18 A. I don't recall.

36:19 - 36:24 Hacker, E 2020-09-25

 36 19 Q. Did you notice a difference in

 36 20 Mr. Hacker's hearing after he returned home from

 36 21 his second deployment during your marriage?

 36 22 A. It gradually got worse over many

 36 23 deployments. I don't recall when and where I would

 36 24 notice it.

Re: [36:19-36:24]

Def Obj Foundation (602), 701

OVERRULED

38:9 - 38:13 Hacker, E 2020-09-25

 38 9 Q. (BY MR. CASTIGLIA:) Ms. Hacker,

 38 10 would you please describe for me how Mr. Hacker's

 38 11 tinnitus progressed over time?

 38 12 A. It became more apparent and more

 38 13 often.

Re: [38:9-38:13]

Def Obj Foundation (602), 701

OVERRULED

38:14 - 39:18 Hacker, E 2020-09-25

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 35 of 145
Hacker, E 2020-09-25 9

 38 14 Q. Did he have more and more trouble or

 38 15 difficulty hearing you over time?

 38 16 A. I would say that, yes.

 38 17 Q. Do you remember a particular period

 38 18 of time when he started to have more trouble

 38 19 hearing you?

 38 20 A. I can't remember exactly when it was.

 38 21 I know it was after deployment, but I don't know

 38 22 which one.

 38 23 Q. How would you say that Mr. Hacker's

 38 24 hearing loss affects his life?

 38 25 A. He can't always hear everything. He

 39 1 could misconstrue things that he does hear because

 39 2 he only hears it partially. He gets severe

 39 3 headaches because of the tinnitus. It causes pain.

 39 4 It affects his family life. It affects his being

 39 5 able to do things with his children.

 39 6 Q. How did you communicate with

 39 7 Mr. Hacker when you were at home and lived

 39 8 together?

 39 9 A. Talking.

 39 10 Q. Could you talk to him from another

 39 11 room?

 39 12 A. No. If I was on -- if I said

 39 13 something too low, he wouldn't hear me.

 39 14 Q. Have you ever had to resort to other

 39 15 forms of communication because of his hearing loss

 39 16 at home?

 39 17 A. Making sure that he's looking at me

 39 18 when I'm talking to him.

39:4 - 39:5 Hacker, E 2020-09-25

 39 4 It affects his family life. It affects his being

 39 5 able to do things with his children.

Re: [39:4-39:5]

Def Obj 3M MIL No. 17

OVERRULED

39:6 - 39:18 Hacker, E 2020-09-25

 39 6 Q. How did you communicate with

 39 7 Mr. Hacker when you were at home and lived

 39 8 together?

 39 9 A. Talking.

 39 10 Q. Could you talk to him from another

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 36 of 145
Hacker, E 2020-09-25 10

 39 11 room?

 39 12 A. No. If I was on -- if I said

 39 13 something too low, he wouldn't hear me.

 39 14 Q. Have you ever had to resort to other

 39 15 forms of communication because of his hearing loss

 39 16 at home?

 39 17 A. Making sure that he's looking at me

 39 18 when I'm talking to him.

40:5 - 40:13 Hacker, E 2020-09-25

 40 5 Q. Did you ever discuss the possibility

 40 6 of getting a hearing aid for Mr. Hacker?

 40 7 A. I believe that one of the doctors did

 40 8 discuss it, yes.

 40 9 Q. Did Mr. Hacker ever consider actually

 40 10 getting a hearing aid?

 40 11 A. I think it was considered, but after

 40 12 talking to another doctor, I don't remember why,

 40 13 but I think that one doctor said it wouldn't help.

Re: [40:5-40:13]

Def Obj Foundation (602), Multiple 

Hearsay (801, 802)

OVERRULED

40:14 - 41:4 Hacker, E 2020-09-25

 40 14 Q. Okay. Do you remember anything else

 40 15 that the doctor said about the hearing aid?

 40 16 A. I wasn't at those appointments, so,

 40 17 no, I couldn't --

 40 18 Q. Okay.

 40 19 A. -- actually tell you what the doctor

 40 20 said or did not say.

 40 21 Q. Understood. Do you remember what

 40 22 doctor that was?

 40 23 A. I don't know any of the doctors'

 40 24 names.

 40 25 Q. Okay. So you don't have any personal

 41 1 knowledge of a doctor telling Mr. Hacker that he

 41 2 shouldn't get a hearing aid?

 41 3 A. Other than our conversations between

 41 4 ourselves as husband and wife.

Re: [40:14-41:4]

Pltf Obj 602; 802

SUSTAINED

42:9 - 42:18 Hacker, E 2020-09-25

 42 9 Q. Understood. Are there any activities

 42 10 that Mr. Hacker can no longer participate in

 42 11 because of his hearing loss or his tinnitus?

Re: [42:9-42:18]

Def Obj 701

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 37 of 145
Hacker, E 2020-09-25 11

 42 12 A. Being in loud areas, karaoke. Many

 42 13 things, actually. Anything that really causes loud

 42 14 noises.

 42 15 Q. Why would Mr. Hacker not be able to

 42 16 go somewhere with loud noises?

 42 17 A. Because it affected his tinnitus and

 42 18 his tinnitus would get worse.

42:19 - 43:2 Hacker, E 2020-09-25

 42 19 Q. Okay. How many children do you

 42 20 currently have?

 42 21 A. Two living children.

 42 22 Q. And what are their names?

 42 23 A. Aeden and Carol.

 42 24 Q. And are those the children that split

 42 25 time between you and Mr. Hacker that you mentioned

 43 1 earlier?

 43 2 A. Yes.

43:3 - 43:6 Hacker, E 2020-09-25

 43 3 Q. Is Mr. Hacker the father of those

 43 4 children?

 43 5 A. This is a part of the conversation I

 43 6 am taking a break again now. Thank you very much.

Re: [43:3-43:6]

Pltf Obj 402; 403

SUSTAINED

44:25 - 45:19 Hacker, E 2020-09-25

 44 25 Q. (BY MR. CASTIGLIA:) Ms. Hacker, did

 45 1 you ever go to any bars with Mr. Hacker?

 45 2 A. Yes.

 45 3 Q. How often?

 45 4 A. We used to go once a week for

 45 5 karaoke. And then it got much -- it went to once a

 45 6 month, once every couple of months. We haven't

 45 7 been to a bar in years.

 45 8 Q. When is the last time you would say

 45 9 you went to a bar with Mr. Hacker?

 45 10 A. I could not give you an exact date.

 45 11 It was years ago.

 45 12 Q. You mentioned that you went singing

 45 13 with Mr. Hacker at karaoke events. How loud were

 45 14 the karaoke events?

 45 15 A. Karaoke is loud.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 38 of 145
Hacker, E 2020-09-25 12

 45 16 Q. What types of music did you listen to

 45 17 or sing at the karaoke?

 45 18 A. There was a whole wide range of

 45 19 genres. It wasn't just us singing so --

46:7 - 46:9 Hacker, E 2020-09-25

 46 7 Q. Okay. Did you ever go to any

 46 8 restaurants with Mr. Hacker?

 46 9 A. Yes.

46:14 - 46:16 Hacker, E 2020-09-25

 46 14 Q. More than once a month?

 46 15 A. No. I wouldn't say more than once a

 46 16 month.

46:19 - 47:2 Hacker, E 2020-09-25

 46 19 Q. And when's the last time you went to

 46 20 a restaurant with Mr. Hacker?

 46 21 A. I honestly couldn't tell you. I

 46 22 mean, we weren't able to go for quite a while

 46 23 because everything was shut down.

 46 24 Q. Right. Before the shutdown, did you

 46 25 go in the past year?

 47 1 A. I'm sure we did. I don't remember

 47 2 exactly.

47:3 - 47:6 Hacker, E 2020-09-25

 47 3 Q. Did Mr. Hacker have trouble hearing

 47 4 you or others at the restaurant?

 47 5 A. Mr. Hacker has trouble hearing me and

 47 6 others pretty much anytime.

49:13 - 50:5 Hacker, E 2020-09-25

 49 13 Q. Got it. And how often does

 49 14 Mr. Hacker listen to music?

 49 15 A. The same as an average person.

 49 16 Q. Have you ever seen him wearing

 49 17 headphones or earbuds when he listens to music?

 49 18 A. Normally when I see him listening to

 49 19 music, it's in the car.

 49 20 Q. How loud does he listen to music in

 49 21 the car?

 49 22 A. At a reasonable rate so that other

 49 23 people cannot be blown away. We usually have our

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 39 of 145
Hacker, E 2020-09-25 13

 49 24 children -- we usually have our children in the car

 49 25 as well, so --

 50 1 Q. So the music is playing at a level

 50 2 where you can still hold a conversation?

 50 3 A. With a normal person, yes. If I was

 50 4 trying to talk to him, he would have to turn the

 50 5 volume down or turn the music off.

51:22 - 52:2 Hacker, E 2020-09-25

 51 22 Q. How many hours a night would you say

 51 23 that Mr. Hacker sleeps?

 51 24 A. I would say it varies.

 51 25 Q. Based on what?

 52 1 A. Based on what time we'd go to sleep

 52 2 and what time we'd need to get up.

52:3 - 52:16 Hacker, E 2020-09-25

 52 3 Q. Would Mr. Hacker ever sleep more than

 52 4 eight hours a night?

 52 5 A. I honestly don't recall, and I don't

 52 6 know why that is relevant.

 52 7 Q. Do you know how -- how many hours a

 52 8 night Mr. Hacker slept on average?

 52 9 A. I don't recall.

 52 10 Q. What time would you guys usually go

 52 11 to sleep?

 52 12 A. It varied.

 52 13 Q. You can give me a range, if that's

 52 14 easier.

 52 15 A. I would say average between five to

 52 16 eight.

52:19 - 52:25 Hacker, E 2020-09-25

 52 19 A. I apologize. I would say average

 52 20 five to eight. I don't know.

 52 21 Q. (BY MR. CASTIGLIA:) Is that 5:00

 52 22 p.m. to 8:00 p.m.?

 52 23 A. You said average hours.

 52 24 Q. Oh. So Mr. Hacker sleeps about five

 52 25 to eight hours per night?

53:1 - 53:6 Hacker, E 2020-09-25

 53 1 A. If I had to give an estimate.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 40 of 145
Hacker, E 2020-09-25 14

 53 2 Q. Okay. During your marriage with

 53 3 Mr. Hacker, did you sleep in the same room?

 53 4 A. Yes.

 53 5 Q. Did you sleep in the same bed?

 53 6 A. Yes.

53:7 - 53:23 Hacker, E 2020-09-25

 53 7 Q. Do you remember Mr. Hacker ever

 53 8 having trouble sleeping?

 53 9 A. Yes, but I don't see why that is

 53 10 relevant.

 53 11 Q. Why not?

 53 12 A. Because I don't see why our sleeping

 53 13 habits are relevant to his hearing.

 53 14 Q. Mr. Hacker has sleep apnea, right?

 53 15 A. Correct.

 53 16 Q. How would you say that Mr. Hacker's

 53 17 sleep apnea affects his life?

 53 18 A. Again, I don't see why that is

 53 19 relevant to the situation we are discussing.

 53 20 Q. So is it your position that

 53 21 Mr. Hacker's sleep -- that you don't see

 53 22 Mr. Hacker's sleep as related to his hearing

 53 23 issues?

54:1 - 54:5 Hacker, E 2020-09-25

 54 1 A. I don't see why sleep patterns are

 54 2 relevant to hearing loss.

 54 3 Q. (BY MR. CASTIGLIA:) Well, did

 54 4 Mr. Hacker's hearing loss ever interfere with his

 54 5 sleep?

54:8 - 54:10 Hacker, E 2020-09-25

 54 8 A. I would have no way of knowing.

 54 9 Q. (BY MR. CASTIGLIA:) Why not?

 54 10 A. Because I am not his ears. I

54:11 - 54:11 Hacker, E 2020-09-25

 54 11 apologize. That was sarcastic.

Re: [54:11-54:11]

Pltf Obj Move to strike "that was 

sarcastic"; 402; 403; Argumentative

OBJECTIONS TO COUNTERS 

WITHDRAWN, 3/12/2021

54:12 - 54:21 Hacker, E 2020-09-25

 54 12 Q. That's okay. Do you know whether

 54 13 Mr. Hacker's tinnitus ever interfered with his

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 41 of 145
Hacker, E 2020-09-25 15

 54 14 sleep?

 54 15 MR. BLAIR: Same objection.

 54 16 A. Again, I would have no way of

 54 17 knowing.

 54 18 Q. (BY MR. CASTIGLIA:) Does Mr. Hacker

 54 19 snore at night?

 54 20 A. He usually has a CPAP on so I

 54 21 wouldn't be able to tell you.

54:22 - 55:5 Hacker, E 2020-09-25

 54 22 Q. Could you describe the CPAP machine

 54 23 for me?

 54 24 A. It's white.

 54 25 Q. You mentioned that he usually has it

 55 1 on. How often does he use a CPAP machine?

 55 2 A. I honestly -- I don't know. Average,

 55 3 I would say probably most of the nights. But

 55 4 again, I do not understand why this has anything to

 55 5 do with his hearing loss.

55:6 - 55:20 Hacker, E 2020-09-25

 55 6 Q. Have you ever had to wake Mr. Hacker

 55 7 up because he needed to breathe?

 55 8 A. Again, I do not see why this has

 55 9 anything to do with his hearing loss.

 55 10 Q. Do you remember ever waking

 55 11 Mr. Hacker up because he was struggling to breathe?

 55 12 A. I do not understand why this has to

 55 13 do with his hearing loss.

 55 14 Q. Ms. Hacker, are you going to refuse

 55 15 to answer that question?

 55 16 A. Because it is not relevant to this

 55 17 situation. It goes against me being able to not

 55 18 discuss his personal private medical conditions

 55 19 which are not any of my concern. It is a HIPAA

 55 20 violation, honestly.

Re: [55:6-55:20]

Pltf Obj 402; 403; Argumentative

SUSTAINED

58:25 - 59:4 Hacker, E 2020-09-25

 58 25 Q. (BY MR. CASTIGLIA:) Ms. Hacker, have

 59 1 you ever observed Mr. Hacker show signs of anxiety?

 59 2 A. I've seen everybody in my life at

 59 3 some point in time show signs of anxiety, so I'm

Re: [58:25-59:4]

Def Obj 3M MIL No. 1

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 42 of 145
Hacker, E 2020-09-25 16

 59 4 sure I have.

59:5 - 59:7 Hacker, E 2020-09-25

 59 5 Q. Could you describe that for me?

 59 6 A. When our son almost died. Normal

 59 7 life conditions.

Re: [59:5-59:7]

Def Obj 3M MIL No. 1, Prejudice (403) DESIGNATION WITHDRAWN, 

3/12/2021

59:8 - 59:19 Hacker, E 2020-09-25

 59 8 Q. Have you ever seen Mr. Hacker

 59 9 stressed about finances?

 59 10 A. To a normal extent that everybody is

 59 11 stressed about finances.

 59 12 Q. Have you ever seen him stressed about

 59 13 work?

 59 14 A. To the normal extent that everybody

 59 15 stresses about work.

 59 16 Q. Did any of his anxiety stem from his

 59 17 deployments?

 59 18 A. I would have no way of knowing. I am

 59 19 not Mr. Hacker and I am not inside his head.

Re: [59:8-59:19]

Def Obj 3M MIL No. 1

OVERRULED

61:18 - 62:7 Hacker, E 2020-09-25

 61 18 Q. What's your understanding of

 61 19 Mr. Hacker's responsibilities when he was working

 61 20 for the military?

 61 21 A. I was a civilian. I was not

 61 22 privileged or privy to the situations and his

 61 23 responsibilities within the military.

 61 24 Q. So you don't have any understanding

 61 25 of what Mr. Hacker did for the military?

 62 1 A. I know that he was a soldier. I know

 62 2 that he was deployed many times.

 62 3 We did not discuss his deployments.

 62 4 I do not have security clearance.

 62 5 Q. Do you know whether -- do you know

 62 6 what types of noises Mr. Hacker was exposed to

 62 7 during his military experience?

Re: [61:18-62:7]

Def Obj Relevance (401, 402)

DESIGNATION WITHDRAWN, 

3/12/2021

62:10 - 62:10 Hacker, E 2020-09-25

 62 10 A. I wasn't there.

Re: [62:10-62:10]

Def Obj Relevance (401, 402)

DESIGNATION WITHDRAWN, 

3/12/2021

63:15 - 64:8 Hacker, E 2020-09-25

 63 15 Q. (BY MR. CASTIGLIA:) Have you ever

 63 16 seen any hearing protection devices that Mr. Hacker

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 43 of 145
Hacker, E 2020-09-25 17

 63 17 owned?

 63 18 A. Yes.

 63 19 Q. What did they look like?

 63 20 A. There was many different ones. I

 63 21 honestly couldn't tell you exactly what they all

 63 22 looked like. Some of them were little earplugs.

 63 23 Some of them were headphone -- headphone like. I

 63 24 don't know what was what.

 63 25 Q. Okay. Roughly how many do you mean

 64 1 when you say there were many earplugs that

 64 2 Mr. Hacker owned?

 64 3 A. Well, there's the ones that the

 64 4 military gave him, and then there was the ones that

 64 5 we had at home to make sure that everybody at the

 64 6 house was safe. Because he was very paranoid about

 64 7 making sure that if anyone was doing anything with

 64 8 loud noises, that they had ear protection.

65:12 - 65:17 Hacker, E 2020-09-25

 65 12 Q. Since Mr. Hacker retired from the

 65 13 military, have you noticed whether his hearing loss

 65 14 or tinnitus has gotten worse?

 65 15 A. He has tinnitus all the time. I mean

 65 16 I can't say if it is getting worse because he

 65 17 doesn't always tell me when he has it.

Re: [65:12-65:17]

Def Obj Foundation (602)

OVERRULED

65:12 - 65:17 Hacker, E 2020-09-25

 65 12 Q. Since Mr. Hacker retired from the

 65 13 military, have you noticed whether his hearing loss

 65 14 or tinnitus has gotten worse?

 65 15 A. He has tinnitus all the time. I mean

 65 16 I can't say if it is getting worse because he

 65 17 doesn't always tell me when he has it.

65:18 - 65:25 Hacker, E 2020-09-25

 65 18 Q. You mentioned earlier that his

 65 19 hearing loss and his tinnitus was progressing over

 65 20 time. Did you notice that after he retired from

 65 21 the military, though?

 65 22 A. Again, I notice certain things, but I

 65 23 don't know if it was actually me noticing it fully

 65 24 progressing or if it has always been that bad. I

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 44 of 145
Hacker, E 2020-09-25 18

 65 25 am not him. He hides things. He is a man.

68:7 - 69:12 Hacker, E 2020-09-25

 68 7 Q. Did Mr. Hacker ever hunt?

 68 8 A. Possibly once or twice.

 68 9 Q. When you say once or twice, do you

 68 10 mean during the whole course of your marriage?

 68 11 A. I mean that my family owns acreage,

 68 12 and I am sure he went once or twice with my

 68 13 stepfather.

 68 14 Q. What types of weapons did he use to

 68 15 hunt?

 68 16 A. Mostly bow. I think he did use rifle

 68 17 once or twice. I don't -- I don't recall. I

 68 18 wasn't there.

 68 19 Q. Okay. Who did he go with in your

 68 20 family?

 68 21 A. My stepfather.

 68 22 Q. And what type of weapons does your

 68 23 stepfather own?

 68 24 A. Bow and rifle.

 68 25 Q. Do you know what kind of rifle?

 69 1 A. No.

 69 2 Q. Do you know whether Mr. Hacker wore

 69 3 hearing protection when he went hunting with your

 69 4 stepfather?

 69 5 A. Always. It is a family rule.

 69 6 Q. Did you ever see Mr. Hacker hunting?

 69 7 A. No. Hunting is a solitary sport.

 69 8 Q. So you are just assuming that he wore

 69 9 hearing protection?

 69 10 A. I know him, and I know my family's

 69 11 policy. If you don't wear hearing protection, you

 69 12 are not allowed to hunt on the property.

Re: [68:7-69:12]

Def Obj Foundation (602)

OVERRULED

69:13 - 70:8 Hacker, E 2020-09-25

 69 13 Q. Okay. Do you know what type of

 69 14 hearing protection they used when they went

 69 15 hunting?

 69 16 A. No. I wasn't there.

 69 17 Q. Do you know what type of hearing

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 45 of 145
Hacker, E 2020-09-25 19

 69 18 protection your family has that Mr. Hacker could

 69 19 have used?

 69 20 A. I don't know exactly what it is, no.

 69 21 Because I wasn't there.

 69 22 Q. So you have never seen any hearing

 69 23 protection devices at your parents' house?

 69 24 A. I did not say that. I said I don't

 69 25 know what they are.

 70 1 Q. Have you ever seen hearing protection

 70 2 devices at your parents' house?

 70 3 A. Many times over the course of my

 70 4 life.

 70 5 Q. What did they look like?

 70 6 A. Again, they ranged from earbuds to

 70 7 headphone-looking type. But, again, that is over

 70 8 the course of my thirty-five years.

71:18 - 72:24 Hacker, E 2020-09-25

 71 18 Q. How many places have you lived with

 71 19 Mr. Hacker where you had a yard?

 71 20 A. Quite a few.

 71 21 Q. Which ones can you remember?

 71 22 A. Tennessee, Virginia, North Carolina,

 71 23 North Carolina, Colorado, Nevada -- let's say seven

 71 24 or eight.

 71 25 Q. Okay. How big, roughly, were the

 72 1 properties?

 72 2 A. Average size, except for the one that

 72 3 was about two acres.

 72 4 Q. What do you mean by "average"?

 72 5 A. An average yard size. I don't know

 72 6 how big a yard really is.

 72 7 Q. More than an acre?

 72 8 A. I don't think an average yard is an

 72 9 acre or more. I don't know, honestly. I never

 72 10 measured the yards.

 72 11 Q. Did you ever see Mr. Hacker do any

 72 12 yard work at any of those properties?

 72 13 A. Of course.

 72 14 Q. Did any of that yard work involve

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 46 of 145
Hacker, E 2020-09-25 20

 72 15 power tools or tools that emit noise?

 72 16 A. Lawn mowers, yeah.

 72 17 Q. Any other tools?

 72 18 A. I don't know exactly -- I don't

 72 19 remember which tools he used while doing yard work.

 72 20 Q. Ever seen him use a weed whacker?

 72 21 A. I am sure I have, yes.

 72 22 Q. How often did Mr. Hacker mow the

 72 23 lawn?

 72 24 A. When it was needed.

73:12 - 73:22 Hacker, E 2020-09-25

 73 12 Q. (BY MR. CASTIGLIA:) What type of

 73 13 lawn mower did you own?

 73 14 A. A lawn mower.

 73 15 Q. Did you push it or ride on it?

 73 16 A. A push mower.

 73 17 Q. Have you ever seen Mr. Hacker mow the

 73 18 lawn without hearing protection?

 73 19 A. Never.

 73 20 Q. What types of hearing protection did

 73 21 he use when he mowed the lawn?

 73 22 A. It looked like headphone type things.

74:1 - 74:4 Hacker, E 2020-09-25

 74 1 Q. Did you ever see Mr. Hacker do

 74 2 carpentry or woodworking?

 74 3 A. Yeah.

 74 4 Q. When was that?

76:1 - 76:8 Hacker, E 2020-09-25

 76 1 Q. Did Mr. Hacker wear hearing

 76 2 protection when you saw him riding an ATV?

 76 3 A. Always.

 76 4 Q. What type of hearing protection did

 76 5 he wear?

 76 6 A. Well, it was underneath his helmet,

 76 7 so I honestly wouldn't be able to tell you what it

 76 8 looked like.

Re: [76:1-76:8]

Def Obj Foundation (602)

OVERRULED

76:12 - 76:15 Hacker, E 2020-09-25

 76 12 Q. Did you ever attend any concerts with

 76 13 Mr. Hacker?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 47 of 145
Hacker, E 2020-09-25 21

 76 14 A. Once -- twice. Sorry, twice. We had

 76 15 to leave both times because he couldn't handle it.

76:19 - 76:23 Hacker, E 2020-09-25

 76 19 Q. What types of music were they at the

 76 20 concert?

 76 21 A. I honestly don't remember because it

 76 22 wasn't something we personally wanted to go to. It

 76 23 was family functions.

76:25 - 77:15 Hacker, E 2020-09-25

 76 25 A. But we had to leave because it was --

 77 1 Q. Do you remember roughly when that

 77 2 was?

 77 3 A. A couple of years ago.

 77 4 Q. Both of the concerts?

 77 5 A. Uh-huh. And we had to leave.

 77 6 Q. You mentioned that. Could you tell

 77 7 me about that?

 77 8 A. He couldn't handle the noise. We had

 77 9 to leave.

 77 10 Q. What did he say about the noise?

 77 11 A. That it was too much, he couldn't

 77 12 handle it, and we had to leave.

 77 13 Q. Was Mr. Hacker wearing hearing

 77 14 protection at either of the concerts?

 77 15 A. I honestly don't remember.

77:16 - 77:18 Hacker, E 2020-09-25

 77 16 Q. Do you remember where you were

 77 17 sitting?

 77 18 A. No.

77:19 - 78:10 Hacker, E 2020-09-25

 77 19 Q. Have you ever attended any sporting

 77 20 events with Mr. Hacker?

 77 21 A. Yes.

 77 22 Q. Which sporting events?

 77 23 A. We went to one hockey -- two hockey

 77 24 games and one football game.

 77 25 Q. And when did you go to those sporting

 78 1 events?

 78 2 A. Various over the last thirteen years

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 48 of 145
Hacker, E 2020-09-25 22

 78 3 of our marriage. I couldn't give you an exact

 78 4 date. I don't remember the days.

 78 5 Q. But three in total, was that right?

 78 6 A. Yep.

 78 7 Q. Did he wear hearing protection at any

 78 8 of those sporting events?

 78 9 A. Actually, yes, he did. He had

 78 10 earbuds for all of them.

80:11 - 80:15 Hacker, E 2020-09-25

 80 11 Q. Has Mr. Hacker's hearing affected his

 80 12 parenting?

 80 13 A. There are times that he doesn't hear

 80 14 everything properly, so he has to go back and

 80 15 readdress things.

Re: [80:11-80:15]

Def Obj 3M MIL No. 17

OVERRULED

80:16 - 80:19 Hacker, E 2020-09-25

 80 16 Q. So have your children ever expressed

 80 17 difficulty communicating with Mr. Hacker?

 80 18 A. They have expressed frustration when

 80 19 he doesn't hear them properly, yes.

Re: [80:16-80:19]

Def Obj 3M MIL No. 17, Hearsay (801, 

802)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 49 of 145
Madison 2019-12-10

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 50 of 145
Madison 2019-12-10 2

Designation Objection Rulings

8:15 - 8:18 Madison 2019-12-10

 8 15 The Court Reporter is Juliana Zajicek, who

 8 16 will now swear in the witness.

 8 17 (WHEREUPON, the witness was duly

 8 18 sworn.)

8:17 - 9:3 Madison 2019-12-10

 8 17 (WHEREUPON, the witness was duly

 8 18 sworn.)

 8 19 TED MADISON,

 8 20 called as a witness herein, having been first duly

 8 21 sworn, was examined and testified as follows:

 8 22 EXAMINATION

 8 23 BY MR. PIRTLE:

 8 24 Q. Good morning.

 8 25 A. Good morning.

 9 1 Q. Would you please state your name for the

 9 2 record?

 9 3 A. Ted Madison.

9:1 - 9:3 Madison 2019-12-10

 9 1 Q. Would you please state your name for the

 9 2 record?

 9 3 A. Ted Madison.

11:2 - 11:7 Madison 2019-12-10

 11 2 Q. And you are retired?

 11 3 A. I am retired from 3M. I continue to work

 11 4 as an audiologist in St. Paul.

 11 5 Q. Okay. You are retired from 3M, and you

 11 6 had been employed by 3M for how long?

 11 7 A. From 1992 until 2019.

18:19 - 19:5 Madison 2019-12-10

 18 19 Q. All right. When you started at 3M, and

 18 20 I'm going to just jump forward a little bit, can you

 18 21 walk me through your progression?

 18 22 A. Sure. 3M in '92 had a hearing aid

 18 23 business. They were manufacturing hearing aids and I

 18 24 was hired to work in that business as a, I think we

 18 25 called it a professional service representative. So

 19 1 it was not a sales position, but a training, education

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 51 of 145
Madison 2019-12-10 3

 19 2 position.

 19 3 Q. Would you be training the sales force,

 19 4 would you be training doctors, or both?

 19 5 A. Both.

19:16 - 19:25 Madison 2019-12-10

 19 16 Q. What's next?

 19 17 A. Yeah. So from '92 to '96 I was in that

 19 18 role and in 1996 I changed positions and joined what

 19 19 was called then the Occupational Health and

 19 20 Environmental Safety Division, or OHESD, at 3M, yeah.

 19 21 Q. Yeah.

 19 22 A. And that -- that is the business that I

 19 23 was with the remainder of my time at 3M. It became

 19 24 known as the Personal Safety Division. Many years

 19 25 later it was renamed.

20:12 - 21:8 Madison 2019-12-10

 20 12 Q. And what did your role at 3M starting in

 20 13 '96 in the Personal Safety Division, or PSD, involve?

 20 14 A. I was part of the technical service

 20 15 department and we provided technical education and

 20 16 support for a wide range of safety products, personal

 20 17 safety products.

 20 18 Q. I've got a document I'll show you in a

 20 19 minute and we may go over this in a little bit more

 20 20 detail.

 20 21 How long did you -- about how long did you

 20 22 maintain that job or that role?

 20 23 A. Well, essentially that was the role I held

 20 24 my entire time from then forward. There were

 20 25 different titles. So I started out at one level,

 21 1 technical service representative, and then as you get

 21 2 promoted you become a technical service specialist,

 21 3 but it -- the role was essentially doing the same

 21 4 types of tasks with greater responsibility over time.

 21 5 Q. That's what I was just fixing to ask you.

 21 6 Did you -- you gained greater responsibility over

 21 7 time?

 21 8 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 52 of 145
Madison 2019-12-10 4

23:15 - 23:23 Madison 2019-12-10

 23 15 Q. Did your role change any after the

 23 16 acquisition of Aearo in 2008?

 23 17 A. I wouldn't say the job description

 23 18 changed. The -- we went from having a few products

 23 19 that I was responsible for to having many products in

 23 20 this category, so, by acquiring -- so, yeah, it took

 23 21 on more product responsibilities.

 23 22 Q. Okay.

 23 23 A. Similar role, though.

24:4 - 24:13 Madison 2019-12-10

 24 4 Q. And it sound to me like what you are

 24 5 telling me is a lot of the products that were shifted

 24 6 over to your bailiwick, the personal protective --

 24 7 A. Um-hum.

 24 8 Q. -- or professional protective area, came

 24 9 from Aearo?

 24 10 A. Yes. My primary responsibility was

 24 11 hearing protection.

 24 12 Q. All right. Earplugs?

 24 13 A. Yes, and earmuffs.

24:14 - 24:18 Madison 2019-12-10

 24 14 Q. That's what we are here about.

 24 15 A. It is.

 24 16 Q. I assume -- I assume you learned that in

 24 17 preparation?

 24 18 A. Indeed.

Re: [24:14-24:18]

Def Obj Relevance (401, 402)

SUSTAINED

24:19 - 25:4 Madison 2019-12-10

 24 19 Q. And, in fact, I think I've got a set of

 24 20 these things. I'm not going to mark them because they

 24 21 are scarce -- scarce these days, but I'll hand them

 24 22 over to you and ask you to identify them if you don't

 24 23 mind?

 24 24 A. These appear to be the dual-end Combat

 24 25 Arms Earplugs.

 25 1 Q. And those dual-end Combat Earplugs are

 25 2 known as Version 2 that I handed you?

 25 3 A. I think most people would refer to them as

 25 4 Version 2.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 53 of 145
Madison 2019-12-10 5

27:3 - 27:7 Madison 2019-12-10

 27 3 Q. Now, there was a civilian counterpart to

 27 4 that called ARC?

 27 5 A. E -- E-A-R ARC Plug, yes.

 27 6 Q. And I would assume that was under your --

 27 7 A. Yes.

27:8 - 27:8 Madison 2019-12-10

 27 8 Q. -- bailiwick?

31:16 - 31:19 Madison 2019-12-10

 31 16 Q. All right. Certainly the ARC Plug was the

 31 17 same except for the color?

 31 18 A. That was my understanding.

 31 19 Q. Now, in fairness, this Combat Arms plug

31:20 - 31:23 Madison 2019-12-10

 31 20 was already being marketed to the military before you

 31 21 took responsibility for the ARC Blast plugs or the ARC

 31 22 Plugs, correct?

 31 23 A. Yes.

32:10 - 32:23 Madison 2019-12-10

 32 10 Q. So are you familiar with where the filter

 32 11 came from?

 32 12 A. Can you explain?

 32 13 Q. Sure.

 32 14 I -- I've read some promotional material,

 32 15 which we are going to go over in a minute or in an

 32 16 hour or so, and it talks about this is patented

 32 17 technology, this passive filtration system.

 32 18 Are you familiar with where that

 32 19 technology came from?

 32 20 A. I under -- understood it to be developed

 32 21 at Institute Saint-Louis, ISL.

 32 22 Q. And that's an institute in France?

 32 23 A. I believe it is.

38:10 - 38:12 Madison 2019-12-10

 38 10 Q. Let me hand you what I've marked as

 38 11 Exhibit 3 --

 38 12 A. Thank you.

38:23 - 39:4 Madison 2019-12-10

 38 23 Q. What is it?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 54 of 145
Madison 2019-12-10 6

 38 24 A. It's a description of job

 38 25 responsibilities, goals and results for 2015 for my

 39 1 position.

 39 2 Q. Is this something you would have input

 39 3 into?

 39 4 A. I wrote it.

40:6 - 40:17 Madison 2019-12-10

 40 6 Q. So in this particular document, Exhibit 3,

 40 7 you list job responsibilities.

 40 8 Is this a -- a -- a fair and accurate

 40 9 depiction of your job responsibilities at least as of

 40 10 2015?

 40 11 A. Yes, I think so.

 40 12 Q. And how long had these job

 40 13 responsibilities been the same before 2015?

 40 14 A. I couldn't say for sure how long.

 40 15 Q. Give me your best estimate.

 40 16 A. I would -- I would say since 2008, since

 40 17 the Aearo acquisition.

41:5 - 41:16 Madison 2019-12-10

 41 5 Q. "Support growth of 3M global hearing

 41 6 protection business by: Enhancing the technical

 41 7 knowledge and skills of 3M technical, marketing and

 41 8 sales."

 41 9 Did I read that reasonably correct?

 41 10 A. Yes.

 41 11 Q. And what I take from this, and I think

 41 12 we've already talked about it, you trained and helped

 41 13 3M technical people and 3M marketing people and 3M

 41 14 salespeople in the hearing protection business?

 41 15 A. Hearing protection and more broadly

 41 16 hearing conservation.

41:17 - 41:24 Madison 2019-12-10

 41 17 Q. What's the difference?

 41 18 A. Hearing protection is only one part of

 41 19 hearing conservation. Hearing conservation involves

 41 20 assessing the hazard, controlling noise, providing

 41 21 hearing protection, doing -- conducting annual hearing

 41 22 tests, monitoring the health of the worker, training

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 55 of 145
Madison 2019-12-10 7

 41 23 workers. So those are all components of hearing

 41 24 conservation.

42:4 - 43:8 Madison 2019-12-10

 42 4 Q. "Developing tools and technical documents

 42 5 to help 3M customers select, fit, and use hearing

 42 6 protectors more effectively."

 42 7 Did I read that reasonably correct?

 42 8 A. Yes.

 42 9 Q. Is another part of hearing conster --

 42 10 conservation selection, fit and use of the protection?

 42 11 A. Yes.

 42 12 Q. "Contributing customer-focused input and

 42 13 science-based understanding of hearing protection to

 42 14 new product development teams as the technical service

 42 15 representative."

 42 16 Explain that a little bit to me.

 42 17 A. So one of our roles as a technical service

 42 18 specialist or representative is to -- within a product

 42 19 development team, to bring the customer, the end

 42 20 user's perspective to the team. So you would have

 42 21 product developers, marketers, laboratory people, and

 42 22 it was our -- our responsibility to understand, Okay,

 42 23 here is a new product, how would the customer use it,

 42 24 what would be the challenges, what would be their

 42 25 perspective on whether this is an acceptable product.

 43 1 And then we would take those products as they were

 43 2 being developed out to test them with customers, get

 43 3 their feedback.

 43 4 So we were, I would call it, kind of the

 43 5 liaison between the customer and the -- the

 43 6 laboratory, try to take products to the customer,

 43 7 evaluate them, come back to the laboratory, bring the

 43 8 customer's perspective to the developers.

43:9 - 43:19 Madison 2019-12-10

 43 9 Q. So you would have developers within 3M

 43 10 that would be working on a certain new product?

 43 11 A. Yes.

 43 12 Q. All right. And --

 43 13 A. Or modifying an old one, yeah.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 56 of 145
Madison 2019-12-10 8

 43 14 Q. To fit a customer's specific needs?

 43 15 A. Yes.

 43 16 Q. And then you would be involved in the

 43 17 evaluation process of how that actually does or

 43 18 doesn't fit the customer's specific needs?

 43 19 A. Yes.

57:21 - 58:11 Madison 2019-12-10

 57 21 Q. Did you also deal with EPA?

 57 22 A. Do you have -- I'm not sure, when you say

 57 23 "deal with," what do you mean?

 57 24 Q. Well, what I mean is, did you represent 3M

 57 25 in front of EPA or at a -- or at EPA?

 58 1 A. Yes, I participated in a -- in a hearing

 58 2 in Washington at least one. I don't recall if there

 58 3 was a second one. I can't say for sure.

 58 4 Q. And what year was that?

 58 5 A. I may not have it right. I believe it was

 58 6 2004, but I'm not 100 percent certain of that. It was

 58 7 in that timeframe, early 2000s.

 58 8 Q. I'll tell you what, let me mark as

 58 9 Exhibit 4 what I believe is a -- it is a workshop on

 58 10 protective devices, Washington, D.C. March 27, 28th,

 58 11 2003.

Re: [57:21-58:11]

Def Obj Relevance (401, 402); 

Prejudice (403)

SUSTAINED

58:12 - 58:15 Madison 2019-12-10

 58 12 (WHEREUPON, a certain document was

 58 13 marked Ted Madison Deposition Exhibit

 58 14 No. 4, for identification, as of

 58 15 12/10/2019.)

Re: [58:12-58:15]

Def Obj Relevance (401, 402); 

Prejudice (403); hearsay (801, 802)

OVERRULED

58:19 - 58:19 Madison 2019-12-10

 58 19 Q. Looking at Exhibit 4, do you recognize it?

Re: [58:19-58:19]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

59:1 - 59:1 Madison 2019-12-10

 59 1 Yes, I recognize this.

Re: [59:1-59:1]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

59:12 - 59:19 Madison 2019-12-10

 59 12 Q. If -- if you will allow me, this is a

 59 13 document that reflects some testimony that you gave in

 59 14 2003 to the EPA?

 59 15 A. Yes, it does.

Re: [59:12-59:19]

Def Obj Relevance (401, 402); 

Prejudice (403); Hearsay (801, 802)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 57 of 145
Madison 2019-12-10 9

 59 16 Q. And is this an internal 3M document or is

 59 17 it an EPA document or do you know?

 59 18 A. I believe it is on the EPA docket that's

 59 19 publicly available, yeah.

60:3 - 60:24 Madison 2019-12-10

 60 3 Q. Did you stand up and give a presentation?

 60 4 A. That's a good question. I -- I believe I

 60 5 did, but I don't -- I don't have a strong recollection

 60 6 of that.

 60 7 Q. But you remember it was in Washington,

 60 8 D.C.?

 60 9 A. I do.

 60 10 Q. At the EPA offices?

 60 11 A. Yes, sir.

 60 12 Q. And there was more than you there, there

 60 13 was --

 60 14 A. It was a very large group.

 60 15 Q. And what was EPA considering?

 60 16 A. They were considering updating

 60 17 Regulation 40 CFR 211.

 60 18 Q. Okay. And what is Regulation 40 CFR 211?

 60 19 A. That's the hearing protector labeling

 60 20 statute.

 60 21 Q. Does EPA, at least for the products that

 60 22 you dealt with before you retired, regulate labeling?

 60 23 A. Yes, they do, labeling of hearing

 60 24 protectors.

Re: [60:3-60:24]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

61:5 - 61:6 Madison 2019-12-10

 61 5 Q. And were you representing 3M?

 61 6 A. Yes, I was.

Re: [61:5-61:6]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

61:7 - 61:20 Madison 2019-12-10

 61 7 Q. It says:

 61 8 "Today I would like to speak to 3 main

 61 9 points.

 61 10 "1. Based on my observations of and

 61 11 conversations with hearing protection users and

 61 12 hearing conservation program administrators, I am

 61 13 convinced that the packages of hearing protectors need

 61 14 to bear labels that communicate more clearly and

Re: [61:7-61:20]

Def Obj Multiple hearsay (801, 802); 

Relevance (401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 58 of 145
Madison 2019-12-10 10

 61 15 accurately the product performance characteristics and

 61 16 the use conditions that impact the effectiveness of

 61 17 that product in the workplace or in non-occupational

 61 18 settings."

 61 19 Did I read that reasonably correct?

 61 20 A. Yes, sir.

61:21 - 62:12 Madison 2019-12-10

 61 21 Q. It -- now, this is based on your own

 61 22 observations and conversations, is -- is how you

 61 23 started?

 61 24 A. Based on my experience, yes.

 61 25 Q. That's a good way of putting it.

 62 1 A. Yeah.

 62 2 Q. Based on your experience, what you are

 62 3 basically saying is that you believe that the labels

 62 4 should communicate more clearly and accurately the

 62 5 product's performance characteristics and use

 62 6 conditions that impact the effectiveness of the

 62 7 product wherever it's used?

 62 8 A. Yes.

 62 9 Q. And labeling being what?

 62 10 A. Labeling in this context specifically

 62 11 referring to the noise reduction rating label, NRR,

 62 12 and the accompanying supporting information.

Re: [61:21-62:12]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

62:22 - 63:1 Madison 2019-12-10

 62 22 Q. Sure. Well, let me just do it this way:

 62 23 What is NRR?

 62 24 A. The NRR is a numeric indicator of the

 62 25 performance of the hearing protector in the

 63 1 laboratory.

63:2 - 63:5 Madison 2019-12-10

 63 2 Q. Okay. It's what -- it is -- it is how it

 63 3 is -- it -- it is able to perform within a laboratory

 63 4 setting that it would get its NRR?

 63 5 A. Correct.

Re: [63:2-63:5]

Pltf Obj cumulative

SUSTAINED

63:6 - 63:11 Madison 2019-12-10

 63 6 Q. And the rest of the information that comes

 63 7 with the NRR would be indication -- I mean, the

 63 8 indications for use, those type of things?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 59 of 145
Madison 2019-12-10 11

 63 9 A. Yes. The EPA calls it supporting

 63 10 information, so there is a prescribed verbiage that's

 63 11 to be included on all packages sold in the US.

63:12 - 63:17 Madison 2019-12-10

 63 12 Q. And: "Secondly, there is widespread

 63 13 agreement within the hearing conservation

 63 14 professionals that hearing" -- "that the hearing

 63 15 protector labeling currently required by the

 63 16 United States EPA, under federal regulation 40 part

 63 17 211, is inadequate and misleading."

Re: [63:12-63:17]

Def Obj Relevance (401, 402); 

Prejudice (403); multiple hearsay (801, 

802)

OVERRULED

63:18 - 63:19 Madison 2019-12-10

 63 18 Did I read that reasonably correct?

 63 19 A. Sorry. Yes, you did.

63:20 - 64:13 Madison 2019-12-10

 63 20 Q. In what way were you talking about it

 63 21 being inadequate and misleading?

 63 22 A. I believe what I meant when I wrote that

 63 23 was that the existing NRR and supporting information

 63 24 that's part of that, we'll call that the label, all of

 63 25 that information. There are statements within that

 64 1 that an end user or a consumer might find misleading

 64 2 or they might misunderstand.

 64 3 Q. Give me an example.

 64 4 A. A couple of examples, there is a statement

 64 5 on the NRR label, and I don't have it in front of me,

 64 6 but to the effect that the range of NRRs are from 0 to

 64 7 30, or I believe it is something like that. Higher --

 64 8 a higher number indicates greater protection or

 64 9 something like that. I -- I don't know the exact

 64 10 wording. And that -- that is not an accurate

 64 11 statement based on my experience that a higher number

 64 12 is -- is -- is an indicator of more protection. So

 64 13 that's one example.

Re: [63:20-64:13]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

64:14 - 64:16 Madison 2019-12-10

 64 14 Q. Let me see if I understand, and I think I

 64 15 was getting to that when I rephrased the question

 64 16 and -- and said, Well, tell me about NRR.

Re: [64:14-64:16]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

64:17 - 65:5 Madison 2019-12-10

 64 17 NRR is an -- is an estimate within a

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 60 of 145
Madison 2019-12-10 12

 64 18 laboratory of the noise reduction rating of an implant

 64 19 and it might not be indicative of what it -- what is

 64 20 actually going on with -- out in the field with the

 64 21 people, is that fair?

 64 22 A. Yes, I -- I would say that's correct, that

 64 23 it's not necessarily a good predictor of individual

 64 24 attenuation in the workplace.

 64 25 Q. All right. Fair enough.

 65 1 So you might get an earplug that has an

 65 2 NRR of 30 that doesn't do as good a job protecting

 65 3 your hearing, under certain circumstances, as a

 65 4 hearing plug that had an NRR of 26?

 65 5 A. Correct.

65:6 - 65:6 Madison 2019-12-10

 65 6 Q. See, I can learn.

Re: [65:6-65:6]

Def Obj attorney colloquy, relevance 

(401, 402)

SUSTAINED

65:7 - 65:12 Madison 2019-12-10

 65 7 And then third -- "Thirdly, 3M believes

 65 8 that the users of hearing protectors and employers who

 65 9 provide hearing conservation programs for their

 65 10 employees will benefit from improved hearing protector

 65 11 labeling, should the EPA go forward with changes to

 65 12 the rules contained in 40 part 11 (sic)."

Re: [65:7-65:12]

Def Obj Relevance (401, 402); 

Prejudice (403); multiple hearsay (801, 

802)

OVERRULED

65:16 - 66:25 Madison 2019-12-10

 65 16 Q. 211.

 65 17 That's basically a restate of -- or a

 65 18 summation of what you are saying, you want the rules

 65 19 changed?

 65 20 A. Right. I wanted EPA to understand that

 65 21 this would have some benefit to the end user. That's

 65 22 a big issue when you are changing a regulation. Why

 65 23 are we doing this? Because it will benefit people.

 65 24 Q. Turn over to your testimony on Page 158.

 65 25 Let me see if I can read this correctly.

 66 1 This is you to EPA, correct?

 66 2 A. These are my comments to the EPA hearing,

 66 3 yes.

 66 4 Q. "One challenged" -- "One challenge faced

 66 5 currently by HPD manufacturers is the test-retest

Re: [65:16-66:25]

Def Obj Relevance (401, 402); 

Prejudice (403); multiple hearsay (801, 

802)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 61 of 145
Madison 2019-12-10 13

 66 6 variability of real-ear attenuation measurements."

 66 7 Did I read that reasonably correct?

 66 8 A. Yes.

 66 9 Q. Now, HPD standing for hearing protective

 66 10 device manufacturers?

 66 11 A. Yes.

 66 12 Q. And when you say "test-retest variability

 66 13 of real-ear attenuation measurements," what are you

 66 14 talking about?

 66 15 A. The real-ear attenuation test, referred to

 66 16 as REAT, R-E-A-T, is the test that's performed as the

 66 17 basis for determining the NRR, the noise reduction

 66 18 rating. So real-ear attenuation is the laboratory

 66 19 test method for determining the NRR and the

 66 20 attenuation values.

 66 21 Q. And --

 66 22 A. And test-retest variability relates

 66 23 exactly to that, is if I retest a product using a

 66 24 certain procedure how variable are the results, how

 66 25 consistent are they.

67:6 - 67:8 Madison 2019-12-10

 67 6 This variability, there can be variability

 67 7 in determining the tests that are used to determine

 67 8 NRR of a certain product?

67:11 - 67:12 Madison 2019-12-10

 67 11 A. There is variability in the REAT test,

 67 12 yes.

68:13 - 68:17 Madison 2019-12-10

 68 13 If you are selling your product in a

 68 14 blister pack in Cabela's and a fellow is walking

 68 15 around there looking for hearing protection, the only

 68 16 thing they might look at is an NRR and they'll look,

 68 17 say, I know higher is better, and they buy it?

Re: [68:13-68:17]

Def Obj Foundation (602); relevance 

(401, 402)

OVERRULED

68:20 - 68:22 Madison 2019-12-10

 68 20 Q. Is that your experience?

 68 21 A. I don't know what motivates all users, but

 68 22 many users would be motivated by a high NRR, I assume.

Re: [68:20-68:22]

Def Obj Speculation; foundation (602); 

relevance (401, 402)

OVERRULED

69:24 - 71:2 Madison 2019-12-10

 69 24 Q. "In cases where a single product is tested

Re: [69:24-71:2]

Def Obj Relevance (401, 402); 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 62 of 145
Madison 2019-12-10 14

 69 25 more than once, and the test data yield different

 70 1 ratings, the EPA needs to provide clear rules for

 70 2 determining which NRR is to be printed on the label.

 70 3 Given the 'bigger is better,'" in quotation marks,

 70 4 "mentality in the industry, with regard to NRR, it is

 70 5 conceivable that HPD manufacturers have, in the past,

 70 6 or may, in the future, attempt to obtain a desired

 70 7 NRR, not by improving the product in a meaningful way,

 70 8 but by retesting a product repeatedly; rolling the

 70 9 dice, if you will, in hope that the variability of the

 70 10 test data will eventually yield a higher number."

 70 11 Did I read that reasonably correct?

 70 12 A. Yes, you did.

 70 13 Q. So what you -- and -- and this is what I

 70 14 was getting at and I -- the term "bigger is better" in

 70 15 quotation marks, that mentality, that industry

 70 16 mentality, what you are referring to, a bigger number

 70 17 on the NRR is better, that is --

 70 18 A. That's a pervasive I -- idea or mentality

 70 19 that -- that -- employers often see a higher number

 70 20 and they think this is going to protect my workers

 70 21 more, so I'll go for that one.

 70 22 Q. Well, I should have used the employer

 70 23 example, but -- and -- and -- and I -- like I say,

 70 24 and -- and they will buy that product over a product

 70 25 that has a lower NRR on the belief that this will

 71 1 protect my employees better?

 71 2 A. That's been my experience, yes.

Prejudice (403); multiple hearsay (801, 

802)

71:3 - 71:4 Madison 2019-12-10

 71 3 Q. And companies, HPD manufacturers, know of

 71 4 that type of a "bigger is better" mentality, correct?

Re: [71:3-71:4]

Def Obj Speculation; foundation (602); 

compound (611, 403); Relevance (401, 

402); Prejudice (403); multiple hearsay 

(801, 802)

SUSTAINED

71:7 - 71:10 Madison 2019-12-10

 71 7 Q. You certainly did?

 71 8 A. Yes, I -- I would say that HPD

 71 9 manufacturers try to meet the demand for higher NRR

 71 10 products.

Re: [71:7-71:10]

Def Obj Foundation (602); compound 

(611, 403); Relevance (401, 402); 

Prejudice (403); multiple hearsay (801, 

802)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 63 of 145
Madison 2019-12-10 15

71:11 - 71:25 Madison 2019-12-10

 71 11 Q. And you say:

 71 12 "It's conceivable that the..." hearing

 71 13 protective device"...manufacturers have, in the past,

 71 14 or may, in the future, attempt to obtain a desired

 71 15 NRR, not by improving the product in a meaningful way,

 71 16 but by retesting the product repeatedly; rolling the

 71 17 dice, if you will, in hope that the variability of the

 71 18 test data will eventually yield a higher number."

 71 19 And what you are basically saying is, you

 71 20 all need -- EPA needs to pass a rule that clarifies if

 71 21 you test it once, what number -- well, when you test

 71 22 it once, you have a number, if you test it twice, how

 71 23 do you report the two test results versus three or --

 71 24 or the like?

 71 25 A. Exactly, that's what I was driving at.

Re: [71:11-71:25]

Def Obj Relevance (401, 402); 

Prejudice (403); Multiple hearsay (801, 

802)

OVERRULED

72:7 - 72:17 Madison 2019-12-10

 72 7 Q. What you are describing here is a

 72 8 manufacturer that -- that could, conceivably, test a

 72 9 product, get a lower NRR, then test it again and get a

 72 10 higher NRR and then use that NRR, the higher one, on

 72 11 the labeling mandated by EPA?

 72 12 A. Yes, that -- that's the concern.

 72 13 Q. And -- and you are saying, and I think

 72 14 rightfully so, Hey, we need to put some rules around

 72 15 this to figure out what we are going to do with one

 72 16 test, two tests, three tests and the like?

 72 17 A. Right, yes.

Re: [72:7-72:17]

Def Obj Relevance (401, 402); 

Prejudice (403); multiple hearsay (801,

802)

OVERRULED

72:18 - 72:23 Madison 2019-12-10

 72 18 Q. And -- and you don't -- and you are saying

 72 19 if you improve the product in a meaningful way and

 72 20 retest, that's great, but just simply retesting for

 72 21 the sake of retesting, because there is variability, I

 72 22 guess, in the retesting?

 72 23 A. There is.

Re: [72:18-72:23]

Def Obj Relevance (401, 402); 

Prejudice (403); multiple hearsay (801, 

802)

OVERRULED

72:24 - 73:2 Madison 2019-12-10

 72 24 Q. And -- and on a lot of different levels,

 72 25 and we can get to it, but there is variability in

Re: [72:24-73:2]

Def Obj Foundation (602); vague, 

compound (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 64 of 145
Madison 2019-12-10 16

 73 1 retesting, rolling the dice and see what comes up

 73 2 is -- is not the way we need to run this industry?

73:6 - 73:8 Madison 2019-12-10

 73 6 A. That was my point, I wanted to see greater

 73 7 clarity as to how manufacturers could do that

 73 8 consistently.

Re: [73:6-73:8]

Def Obj Foundation (602); vague, 

compound (611, 403)

OVERRULED

73:9 - 74:1 Madison 2019-12-10

 73 9 Q. "EPA should discourage this practice by

 73 10 including in revised labeling rules specific criteria

 73 11 for when and if a manufacturer must modify its

 73 12 published NRR to reflect newly acquired performance

 73 13 data."

 73 14 Did I read that reasonably correct?

 73 15 A. Yes.

 73 16 Q. "By defining these criteria carefully, the

 73 17 EPA can help protect customers (sic) from false claims

 73 18 of improved product performance that are based on

 73 19 statistically insignificant variations in test

 73 20 results."

 73 21 Did I read that correctly?

 73 22 A. Yes.

 73 23 Q. And that's -- that's a practice that you

 73 24 were encouraging in 2003 representing 3M in front of

 73 25 EPA?

 74 1 A. Yes.

Re: [73:9-74:1]

Def Obj Relevance (401, 402); 

Prejudice (403); multiple hearsay (801, 

802)

OVERRULED

74:4 - 74:5 Madison 2019-12-10

 74 4 Q. And you still agree with that today?

 74 5 A. Yes.

Re: [74:4-74:5]

Def Obj Relevance (401, 402); 

Prejudice (403); multiple hearsay (801, 

802)

OVERRULED

74:9 - 74:14 Madison 2019-12-10

 74 9 Q. So it's -- so the hearing protection

 74 10 device industry today, even as you are retired, is

 74 11 still operating under this -- these rules where you

 74 12 can -- you say "roll the dice," I say "pitch until you

 74 13 win," with these NRR numbers?

 74 14 MR. FIELDS: Objection; form.

Re: [74:9-74:14]

Def Obj Foundation (602); assumes 

facts; argumentative (611, 403); 

Relevance (401, 402); Prejudice (403); 

hearsay (801, 802)

OVERRULED

74:16 - 74:18 Madison 2019-12-10

 74 16 A. I wouldn't say that the EPA rules allow

Re: [74:16-74:18]

Def Obj Foundation (602); assumes 

facts; argumentative (611, 403); 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 65 of 145
Madison 2019-12-10 17

 74 17 that. I was asking for tighter rules that would make

 74 18 it more clear that that's not acceptable.

Relevance (401, 402); Prejudice (403); 

hearsay (801, 802)

78:21 - 78:24 Madison 2019-12-10

 78 21 (WHEREUPON, a certain document was

 78 22 marked Ted Madison Deposition Exhibit

 78 23 No. 5, for identification, as of

 78 24 12/10/2019.)

Re: [78:21-78:24]

Def Obj Foundation (602)

OVERRULED

79:7 - 79:8 Madison 2019-12-10

 79 7 Q. I'm going to hand you what I've marked as

 79 8 Exhibit 5 to your deposition and ask you to review it.

Re: [79:7-79:8]

Def Obj Foundation (602)

OVERRULED

79:9 - 79:9 Madison 2019-12-10

 79 9 MR. HUNGER: We have it, Tom. Hang on.

Re: [79:9-79:9]

Def Obj Relevance (401, 402); 

Foundation (602)

SUSTAINED

79:24 - 81:22 Madison 2019-12-10

 79 24 Q. When is the last time you saw this

 79 25 document?

 80 1 A. I don't recall.

 80 2 Q. Do you recall ever seeing it?

 80 3 A. Yes, I believe so.

 80 4 Q. I will tell you that it -- a copy of this

 80 5 was in your custodial file, which was produced to us

 80 6 by 3M. That doesn't tell me when you saw it last.

 80 7 Has it been recently?

 80 8 A. No.

 80 9 Q. This is a report of testing done at

 80 10 E-A-RCAL, correct?

 80 11 A. Yes, it appears to be.

 80 12 Q. And it looks like that the people that

 80 13 performed the testing was Mr. Berger and Mr. Kieper,

 80 14 Kieper?

 80 15 A. Kieper.

 80 16 Q. Kieper?

 80 17 A. Yes.

 80 18 Q. Who you've identified earlier, correct?

 80 19 A. Yes.

 80 20 Q. And it talks about: "How folding back the

 80 21 flanges" -- "How Folding the Flanges Back Affects REAT

 80 22 Results..." for -- for "...the UltraFit Earplug End of

 80 23 the Combat Arms Plug."

Re: [79:24-81:22]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 66 of 145
Madison 2019-12-10 18

 80 24 Did I read that reasonably correct?

 80 25 A. Yes.

 81 1 Q. And when we are talking about the UltraFit

 81 2 end of the Combat Arms earplug, we are talking about

 81 3 the green part, correct?

 81 4 A. Yes, I -- as I read this, that is what

 81 5 they are referring to as the -- the solid end, the

 81 6 green.

 81 7 Q. In this Mr. Berger writes:

 81 8 "Combat Arms earplug was shortened, at the

 81 9 request of Army, so that it would fit in the carrying

 81 10 case. Because of this the plug is shorter than any

 81 11 other UltraFit design. The purpose of this report is

 81 12 to document that the current length of the UltraFit

 81 13 Earplug end of the Combat Arms Plug is too short for

 81 14 proper insertion, and how changing the fitting

 81 15 technique affected the results of the real-ear tests

 81 16 of this plug."

 81 17 Did I read that reasonably correct?

 81 18 A. Yes.

 81 19 Q. So what had went on was, this plug was --

 81 20 Elliot Berger, as the lead investigator, had tested

 81 21 this plug prior to this 2000 test result that we have

 81 22 in our hand, correct?

80:4 - 80:6 Madison 2019-12-10

 80 4 Q. I will tell you that it -- a copy of this

 80 5 was in your custodial file, which was produced to us

 80 6 by 3M. That doesn't tell me when you saw it last.

Re: [80:4-80:6]

Def Obj Relevance (401, 402); attorney 

colloquy (401, 402); Foundation (602)

SUSTAINED

80:7 - 81:18 Madison 2019-12-10

 80 7 Has it been recently?

 80 8 A. No.

 80 9 Q. This is a report of testing done at

 80 10 E-A-RCAL, correct?

 80 11 A. Yes, it appears to be.

 80 12 Q. And it looks like that the people that

 80 13 performed the testing was Mr. Berger and Mr. Kieper,

 80 14 Kieper?

 80 15 A. Kieper.

 80 16 Q. Kieper?

Re: [80:7-81:18]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 67 of 145
Madison 2019-12-10 19

 80 17 A. Yes.

 80 18 Q. Who you've identified earlier, correct?

 80 19 A. Yes.

 80 20 Q. And it talks about: "How folding back the

 80 21 flanges" -- "How Folding the Flanges Back Affects REAT

 80 22 Results..." for -- for "...the UltraFit Earplug End of

 80 23 the Combat Arms Plug."

 80 24 Did I read that reasonably correct?

 80 25 A. Yes.

 81 1 Q. And when we are talking about the UltraFit

 81 2 end of the Combat Arms earplug, we are talking about

 81 3 the green part, correct?

 81 4 A. Yes, I -- as I read this, that is what

 81 5 they are referring to as the -- the solid end, the

 81 6 green.

 81 7 Q. In this Mr. Berger writes:

 81 8 "Combat Arms earplug was shortened, at the

 81 9 request of Army, so that it would fit in the carrying

 81 10 case. Because of this the plug is shorter than any

 81 11 other UltraFit design. The purpose of this report is

 81 12 to document that the current length of the UltraFit

 81 13 Earplug end of the Combat Arms Plug is too short for

 81 14 proper insertion, and how changing the fitting

 81 15 technique affected the results of the real-ear tests

 81 16 of this plug."

 81 17 Did I read that reasonably correct?

 81 18 A. Yes.

81:19 - 81:22 Madison 2019-12-10

 81 19 Q. So what had went on was, this plug was --

 81 20 Elliot Berger, as the lead investigator, had tested

 81 21 this plug prior to this 2000 test result that we have

 81 22 in our hand, correct?

Re: [81:19-81:22]

Def Obj Foundation, speculation (602); 

assumes facts (611, 403)

OVERRULED

81:25 - 81:25 Madison 2019-12-10

 81 25 A. I don't know when it was tested before.

Re: [81:25-81:25]

Def Obj Foundation, speculation (602); 

assumes facts (611, 403)

OVERRULED

82:1 - 82:5 Madison 2019-12-10

 82 1 BY MR. PIRTLE:

 82 2 Q. It was a device tested, but it -- but it

 82 3 appears that the Combat Arms earplug was too short,

Re: [82:1-82:5]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 68 of 145
Madison 2019-12-10 20

 82 4 right, according to Mr. Berger?

 82 5 A. That's what he states, yes.

82:6 - 82:7 Madison 2019-12-10

 82 6 Q. And that was preventing this earplug from

 82 7 going into the ear the correct depth to get a seal?

Re: [82:6-82:7]

Def Obj Foundation, speculation (602); 

assumes facts; vague; compound (611, 

403)

OVERRULED

82:9 - 82:16 Madison 2019-12-10

 82 9 BY MR. PIRTLE:

 82 10 Q. Am I following that right, a seal in the

 82 11 ear canal?

 82 12 A. He -- he said it was too short for proper

 82 13 insertion.

 82 14 Q. Proper insertion --

 82 15 A. But he didn't address the seal. I don't

 82 16 know for sure.

Re: [82:9-82:16]

Def Obj Foundation, speculation (602); 

assumes facts; vague; compound (611, 

403)

OVERRULED

82:17 - 82:19 Madison 2019-12-10

 82 17 Q. Seal in the ear canal, though, is the only

 82 18 thing it could be, isn't it?

 82 19 A. I don't know.

Re: [82:17-82:19]

Def Obj Foundation, speculation (602); 

assumes facts; vague (611, 403)

OVERRULED

82:20 - 83:13 Madison 2019-12-10

 82 20 Q. So you'll see reported down here: "The

 82 21 initial test," and there is a number on it, "213015,"

 82 22 it is under Results.

 82 23 A. Okay.

 82 24 Q. "...was stopped after eight subjects

 82 25 because individual results were variable and the NRR

 83 1 was quite low (11)."

 83 2 Are you with me?

 83 3 A. I see it, yes.

 83 4 Q. All right. So what I'd ask you, if it had

 83 5 been tested before, and the answer is yes, and there

 83 6 is the -- the E-A-RCAL number, correct?

 83 7 A. I don't know that what that test number

 83 8 refers to, if it was an initial test during this test

 83 9 period or some previous time.

 83 10 Q. "The initial test" -- what he says is:

 83 11 "Initial test" and gives a number "was stopped after

 83 12 eight subjects," correct?

 83 13 A. That's what he wrote, yes.

Re: [82:20-83:13]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 69 of 145
Madison 2019-12-10 21

83:14 - 83:16 Madison 2019-12-10

 83 14 Q. "And the NRR," which we've talked about in

 83 15 context with your testimony in front of Environmental

 83 16 Protection Agency, "was quite low (11)."

Re: [83:14-83:16]

Def Obj Foundation (602); Incomplete 

designation (403); misleading (611, 

403)

OVERRULED

84:24 - 84:24 Madison 2019-12-10

 84 24 A. It is used for listening to music.

Re: [84:24-84:24]

Def Obj Incomplete designation, no 

question (403); relevance (401, 402); 

Prejudice (403); Foundation (602)

OVERRULED

84:25 - 85:6 Madison 2019-12-10

 84 25 Q. Not for use in combat situations?

 85 1 A. No, sir.

 85 2 Q. Not for military applications?

 85 3 A. No.

 85 4 Q. Not for people who are going to be

 85 5 explose -- exposed to jet blast or -- or weapons fire?

 85 6 A. It was not marketed that way, no.

Re: [84:25-85:6]

Def Obj Foundation (602); Incomplete 

designation (403); Relevance (401, 

402); Prejudice (403)

DEFER RULING

85:7 - 85:9 Madison 2019-12-10

 85 7 Q. And I'm not saying it was. I'm just

 85 8 saying 11 would be low for that application, we -- so

 85 9 we've got to talk about the application.

Re: [85:7-85:9]

Def Obj Foundation (602); Relevance 

(401, 402)

OVERRULED

85:10 - 86:14 Madison 2019-12-10

 85 10 11 would be low?

 85 11 A. Low for -- for those military

 85 12 applications?

 85 13 Q. Sure.

 85 14 A. So we are talking about the continuous,

 85 15 and, yes, it would be low for that.

 85 16 Q. "Ten subjects were tested in test 213017."

 85 17 "This means from" -- "The means from that test are

 85 18 from .6 to .5 decibels higher."

 85 19 A. 4.5.

 85 20 Q. Oh, "4.5 decibels higher at all test

 85 21 frequencies and the SDs are .6 to .9 decibels lower."

 85 22 MR. FIELDS: 4.9.

 85 23 BY MR. PIRTLE:

 85 24 Q. "4.9 lower than those of test 213015."

 85 25 Did I read that reasonably correct, and I

 86 1 do mean reasonably?

 86 2 A. With corrections, yes.

Re: [85:10-86:14]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 70 of 145
Madison 2019-12-10 22

 86 3 Q. "The NRR obtained from this test was 22

 86 4 decibels."

 86 5 Did I read that correctly?

 86 6 A. Yeah, I believe the symbol there is 2

 86 7 standard deviations, yeah.

 86 8 Q. Yes. Was 22?

 86 9 A. It is hard to tell. Yeah.

 86 10 Q. But Mr. Berger now retested this device

 86 11 and got a standard devi- -- I mean, got an NRR of 22,

 86 12 which is considerably higher than 11. Well, it's

 86 13 double 11?

 86 14 A. Yes, it is. Yes.

86:15 - 86:16 Madison 2019-12-10

 86 15 Q. And is it actually double 11, it is more

 86 16 than double, isn't it?

Re: [86:15-86:16]

Def Obj Foundation (602); Relevance 

(401, 402); misstates compound (611, 

403)

OVERRULED

86:18 - 86:25 Madison 2019-12-10

 86 18 BY MR. PIRTLE:

 86 19 Q. Because you can't hold it on a numeric

 86 20 scale, can you, you can't judge it on a numeric scale?

 86 21 A. No, I wouldn't agree with that. I think

 86 22 you could say that it's -- reduces the noise, yeah.

 86 23 Yeah, I mean, it's twice -- it's -- the NRR is -- is

 86 24 double, but the sound energy is reduced by more than

 86 25 that because of the logarithmic nature of decibels.

Re: [86:18-86:25]

Def Obj Foundation (602); misleading, 

compound (611, 403)

OVERRULED

87:1 - 87:2 Madison 2019-12-10

 87 1 Q. And this was achieved by altering the

 87 2 device?

Re: [87:1-87:2]

Def Obj Foundation, speculation (602)

OVERRULED

87:4 - 87:6 Madison 2019-12-10

 87 4 BY THE WITNESS:

 87 5 A. I wouldn't characterize it that way based

 87 6 on what I read here.

Re: [87:4-87:6]

Def Obj Foundation, speculation (602)

OVERRULED

87:7 - 88:12 Madison 2019-12-10

 87 7 BY MR. PIRTLE:

 87 8 Q. Well, it was achieved by changing the

 87 9 configuration of the device?

 87 10 A. As I read it, it was changing the

 87 11 insertion technique used by the experimenter.

 87 12 Q. Which would mean changing some of the

Re: [87:7-88:12]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 71 of 145
Madison 2019-12-10 23

 87 13 flanges on the opposing part of the earplug, right?

 87 14 A. Holding them in a certain way, yes.

 87 15 Q. Does it say holding or does it say folded?

 87 16 What does it say, or do you know?

 87 17 A. Let me -- I can read it.

 87 18 It describes it as folding back prior --

 87 19 folding back of the yellow flanges while -- while

 87 20 being inserted into the ears.

 87 21 Yes, folding back.

 87 22 Q. Permanently folding it back or folding it

 87 23 back and letting it go back into place, what's it

 87 24 talking about, or do you know?

 87 25 A. I do not know.

 88 1 Q. Can you tell from this report?

 88 2 A. I can assume -- well, I shouldn't. I

 88 3 shouldn't assume anything.

 88 4 Q. So did you have anything to do with this

 88 5 flange report?

 88 6 A. No.

 88 7 Q. The first test, according to this

 88 8 document, yielded an NRR of 11, we can agree on that,

 88 9 that's what it says?

 88 10 A. That's what it says.

 88 11 Q. And Mr. Berger stopped this test?

 88 12 A. Yes, it appears so.

88:13 - 88:15 Madison 2019-12-10

 88 13 Q. And 11 offers, if I can figure out what we

 88 14 said, NRR of 11 offers half the protection at a

 88 15 minimum of a 22, correct?

Re: [88:13-88:15]

Def Obj Foundation (602); misstates 

(611,403)

OVERRULED

88:17 - 88:19 Madison 2019-12-10

 88 17 BY THE WITNESS:

 88 18 A. I -- I wouldn't want to use half. It's

 88 19 significantly less. Without doing the math.

Re: [88:17-88:19]

Def Obj Foundation (602); misstates 

(611,403)

OVERRULED

88:20 - 89:24 Madison 2019-12-10

 88 20 BY MR. PIRTLE:

 88 21 Q. But it could be -- it could even be more

 88 22 because of the logarithmic nature of this particular

 88 23 NRR or how NRRs are configured, correct?

 88 24 A. It -- it's a confusing issue because you

Re: [88:20-89:24]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 72 of 145
Madison 2019-12-10 24

 88 25 can say it's half the noise reduction and that's an

 89 1 accurate statement, but the amount of sound energy

 89 2 is --

 89 3 Q. Right.

 89 4 A. -- variable. It is logarithmic.

 89 5 Q. Do you know if test -- the initial test,

 89 6 213015, was given to the EPA?

 89 7 A. I do not.

 89 8 Q. Do you know if it was given to anybody

 89 9 outside of Aearo -- E-A-RCAL?

 89 10 A. I don't know that.

 89 11 Q. Have you ever seen it?

 89 12 A. It's in this document, isn't it? This is

 89 13 it right here.

 89 14 Q. Oh, pardon me.

 89 15 A. I see it now, yes.

 89 16 Q. Okay. Do you know what NRR rating was

 89 17 placed on Combat Arms Version 2 earplugs?

 89 18 A. You are referring to this product, the

 89 19 dual-ended plug?

 89 20 Q. Yes, sir.

 89 21 A. I don't know at, in 2000, what that value

 89 22 was off the top of my head. I've seen packaging

 89 23 with -- with 0 as the open position NRR and 22 as the

 89 24 close position NRR.

90:1 - 90:3 Madison 2019-12-10

 90 1 You've never seen packaging with 0 being

 90 2 open end and 11 being the close end, have you?

 90 3 A. I have not.

90:4 - 90:8 Madison 2019-12-10

 90 4 Q. Going back to Exhibit 4.

 90 5 A. Okay. The EPA proceedings?

 90 6 Q. I'm just going back to your statement on

 90 7 Page 158.

 90 8 A. Okay.

90:9 - 90:20 Madison 2019-12-10

 90 9 Q. Page 158. In here you -- you previously

 90 10 testified:

 90 11 "Given the 'bigger is better' mentality in

Re: [90:9-90:20]

Def Obj Foundation (602); misstates; 

argumentative (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 73 of 145
Madison 2019-12-10 25

 90 12 the industry, with regard to NRR, it is conceivable

 90 13 that hearing protective defense manufacturers have, in

 90 14 the past, or may, in the future, attempt to obtain a

 90 15 desired NRR, by not (sic) improving the product in a

 90 16 meaningful way..."

 90 17 Let me stop there. This wasn't an

 90 18 improvement of this product in a meaningful way, was

 90 19 it, that's just the truth?

 90 20 A. Can you ask that again, sir?

91:8 - 91:16 Madison 2019-12-10

 91 8 Between the first test and the second

 91 9 test, between the time when the 11 was obtained and

 91 10 the 22 was obtained, there was no meaningful

 91 11 improvement in the Combat Arms Version 2, was there?

 91 12 A. It doesn't appear that that's the case.

 91 13 Q. "But by retesting a product repeatedly,"

 91 14 that did happen, didn't it, at least twice?

 91 15 A. The first test was -- was stopped, so I --

 91 16 I don't know that you'd call that a retest.

Re: [91:8-91:16]

Def Obj Foundation (602)

OVERRULED

91:17 - 91:20 Madison 2019-12-10

 91 17 Q. Well, if it was stopped because the NRR

 91 18 was 11, then that shouldn't have occurred either, and

 91 19 you -- you would say that, and I think you did, by the

 91 20 way?

Re: [91:17-91:20]

Def Obj Foundation (602); 701; 

misstates (611, 403)

OVERRULED

91:23 - 92:1 Madison 2019-12-10

 91 23 A. I wouldn't say that stopping a test is --

 91 24 yeah, I'm not -- I'm not sure how you characterized

 91 25 it, but I wouldn't say that that's necessarily

 92 1 inappropriate.

Re: [91:23-92:1]

Def Obj Foundation (602); 701; 

misstates (611, 403)

OVERRULED

92:2 - 92:2 Madison 2019-12-10

 92 2 BY MR. PIRTLE:

92:3 - 92:3 Madison 2019-12-10

 92 3 Q. How about this, rolling the dice?

Re: [92:3-92:3]

Def Obj Foundation (602); misstates; 

vague; argumentative (611, 403)

OVERRULED

92:6 - 92:6 Madison 2019-12-10

 92 6 A. What about it, sir?

Re: [92:6-92:6]

Def Obj Foundation (602); misstates; 

vague; argumentative (611, 403)

OVERRULED

92:7 - 92:7 Madison 2019-12-10

 92 7 BY MR. PIRTLE:

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 74 of 145
Madison 2019-12-10 26

92:8 - 92:9 Madison 2019-12-10

 92 8 Q. Well, that's what you said back in '03,

 92 9 right?

Re: [92:8-92:9]

Def Obj Misstates; argumentative (611, 

403)

OVERRULED

92:12 - 92:13 Madison 2019-12-10

 92 12 A. I was referring to manufacturers who may

 92 13 retest products often looking for the highest NRR.

Re: [92:12-92:13]

Def Obj Misstates; argumentative (611, 

403)

OVERRULED

92:14 - 92:14 Madison 2019-12-10

 92 14 BY MR. PIRTLE:

92:15 - 92:16 Madison 2019-12-10

 92 15 Q. And the first time -- the first test,

 92 16 which was 213015, came up snake eyes?

Re: [92:15-92:16]

Def Obj Foundation (602); misstates; 

vague; argumentative; compound (611, 

403)

SUSTAINED

92:18 - 92:21 Madison 2019-12-10

 92 18 BY MR. PIRTLE:

 92 19 Q. Double 1?

 92 20 A. It was 11 dB based on the report that,

 92 21 what was it, Exhibit 5.

Re: [92:18-92:21]

Def Obj Foundation (602); misstates; 

vague; argumentative; compound (611, 

403)

SUSTAINED

92:22 - 93:3 Madison 2019-12-10

 92 22 Q. Yeah. That's snake eyes, two 1s, isn't

 92 23 it?

 92 24 A. I don't know, sir.

 92 25 Q. You never rolled any dice?

 93 1 A. I am not a dice player, no.

 93 2 Q. Well, you used it, so I thought you might

 93 3 know something about it.

Re: [92:22-93:3]

Def Obj Foundation (602); misstates; 

vague; argumentative; compound (611, 

403); 93:2-3: Attorney colloquy (401, 

402, 403)

SUSTAINED

93:4 - 93:9 Madison 2019-12-10

 93 4 And the second time it come up 22, right?

 93 5 A. Yes, after they modified the insertion

 93 6 technique, it was 22.

 93 7 Q. And got a higher number that was put on

 93 8 the product, right?

 93 9 A. Yes, it was.

Re: [93:4-93:9]

Def Obj Foundation (602)

OVERRULED

93:18 - 93:23 Madison 2019-12-10

 93 18 Q. The ARC Plug is the same thing?

 93 19 A. Oh, yes, I worked with the ARC Plug, yes.

 93 20 Q. We established that.

 93 21 A. Yes.

 93 22 Q. There is just a difference in the colors?

 93 23 A. Correct.

Re: [93:18-93:23]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 75 of 145
Madison 2019-12-10 27

98:24 - 99:3 Madison 2019-12-10

 98 24 Q. Sure.

 98 25 Did this idea of folding the flanges back,

 99 1 whatever that may mean, come up to you in your

 99 2 involvement with ARC Blast?

 99 3 A. No, it did not.

Re: [98:24-99:3]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

99:4 - 99:15 Madison 2019-12-10

 99 4 Q. And that would be all of the way up to

 99 5 June of 2019 when you retired?

 99 6 A. I became aware of that test that we were

 99 7 just referring to where the flanges were folded back,

 99 8 I became aware of that approximately 2014, somewhere

 99 9 in there.

 99 10 Q. What --

 99 11 A. I don't know for sure.

 99 12 Q. What caused you to be aware -- become

 99 13 aware of that?

 99 14 A. It -- the -- the test report was disclosed

 99 15 to me in litigation.

99:16 - 100:2 Madison 2019-12-10

 99 16 Q. Was that the Moldex litigation?

 99 17 A. No, I don't believe so.

 99 18 Q. What type of litigation was it?

 99 19 A. I believe it was the US litigation

 99 20 regarding Combat Arms earplugs --

 99 21 Q. Oh, it was the government.

 99 22 A. -- was the name of the case.

 99 23 I'm sorry.

 99 24 Q. It was the government suing 3M?

 99 25 A. Yes, I believe so.

 100 1 Q. And --

 100 2 A. Department of Justice.

Re: [99:16-100:2]

Def Obj Relevance (401, 402); 

Prejudice (403); 3M MIL No. 6

SUSTAINED

99:21 - 100:2 Madison 2019-12-10

 99 21 Q. Oh, it was the government.

 99 22 A. -- was the name of the case.

 99 23 I'm sorry.

 99 24 Q. It was the government suing 3M?

 99 25 A. Yes, I believe so.

Re: [99:21-100:2]

Def Obj Relevance (401, 402); 3M MIL 

No. 6

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 76 of 145
Madison 2019-12-10 28

 100 1 Q. And --

 100 2 A. Department of Justice.

105:9 - 106:1 Madison 2019-12-10

 105 9 (WHEREUPON, a certain document was

 105 10 marked Ted Madison Deposition Exhibit

 105 11 No. 7, for identification, as of

 105 12 12/10/2019.)

 105 13 BY MR. PIRTLE:

 105 14 Q. I hand you a group of documents marked --

 105 15 as marked 7.

 105 16 A. Okay.

 105 17 Okay.

 105 18 Q. Are you familiar with these documents?

 105 19 A. Yes.

 105 20 Q. When is the last time you saw them?

 105 21 A. During preparation.

 105 22 Q. Okay. So you've seen these recently?

 105 23 A. Yes.

 105 24 Q. And these documents deal with the version

 105 25 of the plug that you're familiar with, ARC Blast

 106 1 (sic), correct?

Re: [105:9-106:1]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

SUSTAINED

106:8 - 109:1 Madison 2019-12-10

 106 8 Q. ARC Plug.

 106 9 A. Yes, I see that, I see that on the last

 106 10 page.

 106 11 Q. And you are -- you were involved with this

 106 12 chain of e-mails while you were with the company?

 106 13 A. Yes.

 106 14 Q. The first one being a 2014, a 4/26/14

 106 15 e-mail that you were cc'd on, correct?

 106 16 A. Yes.

 106 17 Q. And it says:

 106 18 "The following warning needs to be added

 106 19 to all hearing protector (earplugs, banded, and

 106 20 earmuffs) packaging."

 106 21 A. Yes.

 106 22 Q. And there is a caution down there,

 106 23 correct?

 106 24 A. Yes.

Re: [106:8-109:1]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 77 of 145
Madison 2019-12-10 29

 106 25 Q. And do you know if these -- this warning

 107 1 went out with Combat Arms Version 2?

 107 2 A. Not that I know of.

 107 3 Q. You don't know that it -- that -- yeah.

 107 4 A. Yeah, I don't know that it went out with

 107 5 Version 2 Combat Arms.

 107 6 Q. All right. How about -- turn over to the

 107 7 next page so I can get a better copy of this. You are

 107 8 the -- you send this e-mail, correct, it has got Ted

 107 9 Madison?

 107 10 A. It appears I sent it, yes.

 107 11 Q. And you send it to a group of folks, I

 107 12 would assume who are working on the ARC Plug?

 107 13 A. Working on packaging for the ARC Plug and

 107 14 others, other earplugs.

 107 15 Q. In this particular case it is the ARC

 107 16 Plug, though?

 107 17 A. Well, the -- the message refers to a wide

 107 18 variety of products, including ARC Plug.

 107 19 Q. The date is 5/23/14, correct?

 107 20 A. That's correct.

 107 21 Q. And are these the packaging people that

 107 22 you are referring to?

 107 23 A. Some -- some are.

 107 24 Q. Some are, some of them are not?

 107 25 A. Some are marketing people, some are

 108 1 packaging.

 108 2 Q. Marketing and packaging?

 108 3 A. Yes.

 108 4 Q. And it says -- this particular warning

 108 5 talks about -- well, the -- the warning was mandated

 108 6 by EPA, correct?

 108 7 A. No. The -- the -- the text beginning with

 108 8 the word "laboratory attenuation" --

 108 9 Q. Yes.

 108 10 A. -- down to the word "caution," not

 108 11 including the word "caution," so between "laboratory

 108 12 attenuation" and "such as gunfire," that is all EPA

 108 13 text verbatim from the regulation. The -- the

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 78 of 145
Madison 2019-12-10 30

 108 14 paragraph beginning "Caution" was new.

 108 15 Q. Who wrote that?

 108 16 A. I wrote it in conjunction with Mr. Berger

 108 17 and Mr. Fallon and legal.

 108 18 Q. Turn over to page 495.

 108 19 A. Sorry. What page?

 108 20 Q. 425495.

 108 21 A. Thank you.

 108 22 Okay.

 108 23 Q. Now, this says E-A-R ARC Plug.

 108 24 Is this the plug that you were selling?

 108 25 A. Yes.

 109 1 MR. FIELDS: Objection to form.

109:3 - 109:8 Madison 2019-12-10

 109 3 Q. And the ARC -- is this the plug you were

 109 4 working on?

 109 5 A. Yes, this is the dual-ended ARC Plug.

 109 6 Q. This is the -- the plug that is the

 109 7 civilian model of the Combat Arms Version 2, correct?

 109 8 A. Yes.

Re: [109:3-109:8]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

OVERRULED

109:17 - 114:24 Madison 2019-12-10

 109 17 Q. "Earplugs should be clean before fitting."

 109 18 "Determine proper end for insertion (yellow or red)

 109 19 depending on your application needs."

 109 20 One is the open, one is the closed, right,

 109 21 we already talked about that?

 109 22 A. Yes.

 109 23 Q. Red being the closed?

 109 24 A. Yes, when the red end is inserted, that's

 109 25 for continuous noise.

 110 1 Q. "The YELLOW end should be inserted only

 110 2 when ambient noise levels are not hazardous but arc

 110 3 potential is present."

 110 4 What does that mean?

 110 5 A. That means that when it's worn in that

 110 6 position with the yellow end inserted, it will not

 110 7 protect you against continuous noise, noises lasting

 110 8 longer than one second. That's the definition of

 110 9 continuous noise. And so it's not protective against

Re: [109:17-114:24]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 79 of 145
Madison 2019-12-10 31

 110 10 continuous noise but only against impulse noise, such

 110 11 as an arc potential -- potential arc flash.

 110 12 Q. Which is a -- a quick sound?

 110 13 A. Less than one second, yes.

 110 14 Q. And, in fact, it says:

 110 15 "In this mode, the noise reduction

 110 16 increases with sound level for impulse (sic) noise

 110 17 such as electric ARC Blast above 110 decibels."

 110 18 A. That's what it says.

 110 19 Q. "At lower sound levels, little or no noise

 110 20 reduction is provided."

 110 21 A. Correct.

 110 22 Q. So this open-ended part kicks in at

 110 23 110 decibels?

 110 24 A. Approximately, yeah.

 110 25 Q. "The RED end should be inserted when you

 111 1 are exposed to continuous hazardous noise. In this

 111 2 mode, the noise reduction provided is constant,

 111 3 regardless of the sound level of the noise."

 111 4 Did I read it reasonably correct?

 111 5 A. Yes.

 111 6 Q. So when we are looking at these two, the

 111 7 yellow end you told me before, there's two different

 111 8 NRRs on this plug, it is really two different plugs,

 111 9 the yellow end is NRR 0 on the labeling?

 111 10 A. Yes, yes.

 111 11 Q. And then the red end, in this case which

 111 12 would be the olive drab end of the -- of the Combat

 111 13 Arms Version 2 has an NRR of 22 which we've talked

 111 14 about how that was derived?

 111 15 A. Yes.

 111 16 Q. And am I reading this correct that these

 111 17 fitting instructions were what was in place for the

 111 18 product that you were involved in, it looks like

 111 19 March 22nd of 2016, although there is three dates up

 111 20 at the top?

 111 21 A. Yes, there are.

 111 22 Q. And was this the fitting instructions for

 111 23 the ARC Plug as of March of 2016, to your knowledge?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 80 of 145
Madison 2019-12-10 32

 111 24 A. I'm -- it's not clear to me from this

 111 25 whether this was a draft or whether this was the final

 112 1 text.

 112 2 Q. Turn over to the next -- turn over to the

 112 3 last page.

 112 4 A. Okay.

 112 5 Q. It looks like it's another copy of the

 112 6 E-A-R ARC Plug, talking about the yellow and the red

 112 7 ends, there is a date up at the top that's been

 112 8 crossed out by somebody in 2010.

 112 9 By the way, what were you all doing during

 112 10 this time? Were you all going over labeling?

 112 11 MR. FIELDS: Objection; form.

 112 12 BY THE WITNESS:

 112 13 A. We -- after the acquisition of Aearo, we

 112 14 began a process of trying to harmonize our user

 112 15 instructions across all of our products.

 112 16 BY MR. PIRTLE:

 112 17 Q. And is this part of that continuing

 112 18 process?

 112 19 A. It is.

 112 20 Q. So we are sometime in 2010 where this is,

 112 21 correct, if the date is correct?

 112 22 A. Yes.

 112 23 Q. And it looks like, and I won't read it

 112 24 again, underneath Section 1: "Ear should" -- "plugs

 112 25 should be clean" there is the yellow again and then

 113 1 there is the red, correct?

 113 2 A. Yes.

 113 3 Q. And then on -- clear that.

 113 4 Then on the right-hand side of the

 113 5 page written in pen, there is handwritten

 113 6 "10/7/15-roll back flanges."

 113 7 Did I read that correctly?

 113 8 A. Yes, it appears to be "roll back flanges."

 113 9 Q. All right. You looked at this in

 113 10 preparation for your deposition. Whose handwriting is

 113 11 that?

 113 12 A. I don't know. Not mine.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 81 of 145
Madison 2019-12-10 33

 113 13 Q. It is not yours?

 113 14 A. No.

 113 15 Q. Who else was working on the project?

 113 16 A. The -- I -- I believe at that time Elliot

 113 17 Berger and possibly his assistant Cyd Kladden and then

 113 18 the -- the -- what I'm not sure of is the packaging

 113 19 person at that time. Later the packaging person was

 113 20 Christine Dunn, but at this time I'm not sure who was

 113 21 working on packaging.

 113 22 Q. And did you see this entry on this

 113 23 document at the time you were working on it?

 113 24 A. No.

 113 25 Q. You saw it in preparation for your

 114 1 deposition?

 114 2 A. Yes.

 114 3 Q. But you have no idea whose handwriting

 114 4 that is?

 114 5 A. I do not.

 114 6 Q. Who was your boss?

 114 7 A. In 2015?

 114 8 Q. Yes, sir.

 114 9 A. Let me think.

 114 10 I'm not -- I'm not completely certain. I

 114 11 believe it was Karen Cuta.

 114 12 Q. Do you know if on 10/7/15 or thereabouts

 114 13 "roll back flanges" was entered into the fitting

 114 14 instructions for the ARC Plug?

 114 15 A. Not to my knowledge.

 114 16 Q. Why didn't you or someone, including

 114 17 Mr. Berger, write an instruction to fold back the

 114 18 flanges?

 114 19 A. I can't speculate as to Mr. Berger's

 114 20 motivations.

 114 21 Q. Why didn't you do it? You had it --

 114 22 A. I wasn't aware of that as -- as one of our

 114 23 user instructions.

 114 24 Q. Did -- and it never made it in there --

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 82 of 145
Madison 2019-12-10 34

115:1 - 115:2 Madison 2019-12-10

 115 1 BY MR. PIRTLE:

 115 2 Q. -- into the -- into the instructions?

Re: [115:1-115:2]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

OVERRULED

115:4 - 115:5 Madison 2019-12-10

 115 4 BY THE WITNESS:

 115 5 A. Not to -- not that I'm aware of.

Re: [115:4-115:5]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

OVERRULED

115:6 - 115:6 Madison 2019-12-10

 115 6 BY MR. PIRTLE:

115:7 - 115:10 Madison 2019-12-10

 115 7 Q. Well, the NRR values on the ARC Plug were

 115 8 based on the same testing that was contained within

 115 9 Exhibit 5, the flange report, weren't they?

 115 10 A. I believe so.

Re: [115:7-115:10]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

OVERRULED

115:11 - 115:13 Madison 2019-12-10

 115 11 Q. And clearly in that report the flanges

 115 12 need to be rolled back in order for it to achieve a

 115 13 22, at least according to the second testing, correct?

Re: [115:11-115:13]

Def Obj Foundation (602); relevance 

(401, 402); assumes facts, misstates, 

argumentative (611, 403); Prejudice 

(403)

OVERRULED

115:15 - 115:17 Madison 2019-12-10

 115 15 BY THE WITNESS:

 115 16 A. That's how the second test was performed,

 115 17 with the flanges rolled back.

Re: [115:15-115:17]

Def Obj Foundation (602); assumes 

facts, misstates, argumentative (611, 

403); Prejudice (403)

OVERRULED

115:18 - 115:18 Madison 2019-12-10

 115 18 BY MR. PIRTLE:

115:19 - 115:20 Madison 2019-12-10

 115 19 Q. And that's what had to be done according

 115 20 to the report, right?

Re: [115:19-115:20]

Def Obj Foundation (602); assumes 

facts, misstates, argumentative (611, 

403)

OVERRULED

115:22 - 115:23 Madison 2019-12-10

 115 22 BY THE WITNESS:

 115 23 A. That's what was done to obtain a 22 NRR.

Re: [115:22-115:23]

Def Obj Foundation (602); assumes 

facts, misstates, argumentative (611, 

403)

OVERRULED

116:2 - 116:7 Madison 2019-12-10

 116 2 (WHEREUPON, a certain document was

 116 3 marked Ted Madison Deposition Exhibit

 116 4 No. 8, for identification, as of

 116 5 12/10/2019.)

 116 6 BY MR. PIRTLE:

 116 7 Q. I show you Exhibit 8.

Re: [116:2-116:7]

Def Obj Relevance (401, 402); 

Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 83 of 145
Madison 2019-12-10 35

116:16 - 116:18 Madison 2019-12-10

 116 16 You are involved in this e-mail chain,

 116 17 correct?

 116 18 A. Yes.

Re: [116:16-116:18]

Def Obj Relevance (401, 402); 

Prejudice (403)

SUSTAINED

117:1 - 119:19 Madison 2019-12-10

 117 1 Q. And it looks to me, to shortcut this, that

 117 2 someone, as you've told me before, is requesting

 117 3 information about the ARC Plug, correct?

 117 4 A. Yes.

 117 5 Q. And there is some exchange back and forth

 117 6 and finally it gets passed on to you and you get the

 117 7 customer or the potential customer the Instructions

 117 8 for Use?

 117 9 A. Yes.

 117 10 Q. And you transmit it and then, of course,

 117 11 they are attached to the back, right?

 117 12 A. Yes, this is an instruction sheet.

 117 13 Q. And we are looking at the 3M E-A-R ARC

 117 14 Plug instruction sheet, correct?

 117 15 A. Yes.

 117 16 Q. And now it's blown up, for both of us.

 117 17 A. Thank you.

 117 18 Q. And it says Fitting Instructions. "ARC

 117 19 Plugs are earplugs designed for exposure to potential

 117 20 electrical (sic) arc hazards. For more information on

 117 21 personal protection recommendations for" -- well, I'm

 117 22 sorry. It says: "(See," another statute, "NFPA 70E

 117 23 for more information on personal protection

 117 24 recommendations for arc hazards. Earplugs should be

 117 25 clean before fitting."

 118 1 And then: "Determine a (sic) proper end

 118 2 for insertion (yellow or green) depending on your

 118 3 application needs."

 118 4 And then it goes on and it basically

 118 5 repeats what I've already written -- read to you in

 118 6 the document preceding, correct?

 118 7 A. It appears to be the same as the one we

 118 8 looked at earlier.

 118 9 Q. And then:

Re: [117:1-119:19]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 84 of 145
Madison 2019-12-10 36

 118 10 "2. INSERT the end that you have selected

 118 11 into the earcanal WHILE PULLING the ear outward &

 118 12 upward with the opposite hand. ADJUST until earplug

 118 13 feels securely seated in the earcanal."

 118 14 A. Yes.

 118 15 Q. And: "CHECK FIT after inserting: PULL

 118 16 earplug stem gently. Earplug should not come out of

 118 17 the ear easily. If it does, remove earplug & repeat

 118 18 fitting."

 118 19 A. Yes.

 118 20 Q. And so on and so forth?

 118 21 A. Um-hum, yes.

 118 22 Q. "For great" -- and then "CAUTION: For

 118 23 greater comfort and earcanal safety, remove earplug

 118 24 slowly with a twisting motion to gradually break the

 118 25 seal."

 119 1 Remember, I had asked you earlier about

 119 2 the seal for insertion, that's the seal in the ear

 119 3 canal, correct?

 119 4 A. Correct.

 119 5 Q. And if you pull it out too quick it can

 119 6 potentially damage the ear drum?

 119 7 A. It could potentially or cause pain.

 119 8 Q. Or cause pain.

 119 9 A. Uh-huh.

 119 10 Q. And nowhere in this instruction is there

 119 11 any instruction to fold back flanges, is there?

 119 12 A. I don't see any so far. I haven't read to

 119 13 the bottom.

 119 14 Q. Well, we'll just go all of the way down.

 119 15 I think it is in multiple languages, so we don't have

 119 16 to go far.

 119 17 A. Right.

 119 18 Q. So it's not in there?

 119 19 A. I don't see it.

119:20 - 119:24 Madison 2019-12-10

 119 20 Q. And this was down at the bottom, I'll blow

 119 21 it up for you, very bottom, 5.12, it looks like this

 119 22 was -- this -- this Instructions for Use was put into

Re: [119:20-119:24]

Def Obj Foundation (602); misstates 

(611, 403); relevance (401, 402); 

Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 85 of 145
Madison 2019-12-10 37

 119 23 effect in 2012.

 119 24 Am I reading that correct?

120:4 - 120:5 Madison 2019-12-10

 120 4 BY THE WITNESS:

 120 5 A. I don't know the meaning of that number.

Re: [120:4-120:5]

Def Obj Foundation (602); misstates 

(611, 403); relevance (401, 402); 

Prejudice (403)

SUSTAINED

120:6 - 120:13 Madison 2019-12-10

 120 6 BY MR. PIRTLE:

 120 7 Q. Well, at any rate, as of the date of

 120 8 August 20th of 2015, this is the active Instructions

 120 9 for Use for ARC Plug that you transmitted, correct?

 120 10 A. This is the document that I sent in 2015,

 120 11 yes.

 120 12 Q. The copyright is 3M 2012, correct?

 120 13 A. That's correct.

Re: [120:6-120:13]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

120:14 - 120:16 Madison 2019-12-10

 120 14 Q. So it would appear that the last time this

 120 15 document was changed would have been 2012, from the

 120 16 copyright on it anyhow?

Re: [120:14-120:16]

Def Obj Foundation (602); misstates 

(611, 403); relevance (401, 402); 

Prejudice (403)

OVERRULED

120:18 - 120:21 Madison 2019-12-10

 120 18 BY THE WITNESS:

 120 19 A. I don't know if it had been changed since

 120 20 then. This was the one I had available that I sent to

 120 21 him.

Re: [120:18-120:21]

Def Obj Foundation (602); misstates, 

assumes facts (611, 403); relevance 

(401, 402); Prejudice (403)

OVERRULED

120:22 - 121:10 Madison 2019-12-10

 120 22 BY MR. PIRTLE:

 120 23 Q. And --

 120 24 A. Whether it was current or not, I don't

 120 25 know.

 121 1 Q. And just to make sure we're clear, you've

 121 2 never seen an ARC Plug instruction with the flange

 121 3 being rolled back included?

 121 4 A. I don't recall seeing that, no.

 121 5 Q. And I'm correct in saying that you were

 121 6 providing tech support for this product during this

 121 7 timeframe, correct?

 121 8 A. Yes.

 121 9 Q. That was your job?

 121 10 A. Yes. Part of it.

Re: [120:22-121:10]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 86 of 145
Madison 2019-12-10 38

121:16 - 121:25 Madison 2019-12-10

 121 16 Q. I want to show you a document marked

 121 17 Exhibit No. 9. And you are a recipient.

 121 18 A. Thank you.

 121 19 Q. You wrote some of it, too.

 121 20 A. Okay.

 121 21 Q. Starting at the back page, it says:

 121 22 "Our current tri-flange earplug has a NRR

 121 23 of 26. Yet the Combat Arms shows a 22. They are" --

 121 24 "They basically are the same...can anyone (sic)

 121 25 explain please?"

Re: [121:16-121:25]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

122:3 - 122:8 Madison 2019-12-10

 122 3 Q. "...same thing, can anyone (sic) explain

 122 4 please?"

 122 5 And then it looks like Doug Moses writes

 122 6 something about: "The CAE has a different structure

 122 7 and a hole in the end. Ted is better at examining

 122 8 (sic) this stuff. Ted?"

Re: [122:3-122:8]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

122:11 - 123:18 Madison 2019-12-10

 122 11 Q. Or "explaining this stuff."

 122 12 And then you write back, correct?

 122 13 A. Yes.

 122 14 Q. You say:

 122 15 "Elliot would know more about why the

 122 16 green triple-flange tip of the CAE has a NRR of 22,

 122 17 slightly lower than the other triple-flange devices.

 122 18 It could be the structure of the stem which contains

 122 19 the filter or it could be that the CAE is slightly

 122 20 longer and behaves differently in the earcanal."

 122 21 Did I read that correctly?

 122 22 A. Yes, the word "et cetera" is at the end

 122 23 there.

 122 24 Q. Well, "et cetera."

 122 25 A. Uh-huh, yes.

 123 1 Q. Now, what product are you talking about

 123 2 here?

 123 3 A. I'm talking about the dual end Combat Arms

 123 4 earplug or this version.

 123 5 Q. Having a 22, which has a 26, "our current

Re: [122:11-123:18]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 87 of 145
Madison 2019-12-10 39

 123 6 tri-flange earplugs"?

 123 7 A. Oh, I'm sorry. That -- that product, I

 123 8 assume, is -- he is asking about -- I should look

 123 9 back, see if he mentions the name of it.

 123 10 Yes, it's E-A-R Tri-Flange. It's a -- a

 123 11 single-ended three-flange earplug with an NRR of

 123 12 26 dB.

 123 13 Q. And, now, you are responding and talking

 123 14 to Elliot, and you say:

 123 15 "Elliot would know more than I about why

 123 16 the green tri-tip (sic) on the CAE has an NRR of 22

 123 17 decibels, slightly lower than the other triple" --

 123 18 "triple-flange-tipped devices."

124:5 - 125:7 Madison 2019-12-10

 124 5 Q. You wrote that Elliot would know more,

 124 6 correct?

 124 7 A. Yes.

 124 8 Q. "It could be the structure of the stem

 124 9 which contains the filter or it could be that the CAE

 124 10 is slightly longer and behaves differently in the

 124 11 earcanal, et cetera."

 124 12 Are you with me?

 124 13 A. Yes, I am.

 124 14 Q. "Keep in mind that the test-retest

 124 15 variability of the real-ear attenuation measurements

 124 16 that are used to calculate the NRR is 2 to 3 decibels.

 124 17 So, statistically, there is no difference between

 124 18 devices with an NRR of 22 decibels and those with an

 124 19 NRR of 25 decibels."

 124 20 Did I read that reasonably correct?

 124 21 A. Yes.

 124 22 Q. So you are explaining your theory as to

 124 23 why there is a difference, correct?

 124 24 A. No, I don't believe so. I am explaining

 124 25 that. I -- I said that Elliot would know more than I

 125 1 and I offered some possible reasons, but I -- I'm

 125 2 re- -- I'm comparing the Combat Arms to the

 125 3 Tri-Flange.

 125 4 Q. And one of the -- one of the -- one of the

Re: [124:5-125:7]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 88 of 145
Madison 2019-12-10 40

 125 5 could bes is that the Combat Arms is slightly longer

 125 6 and behaves differently in the ear canal, correct?

 125 7 A. Yes.

126:3 - 126:16 Madison 2019-12-10

 126 3 Q. And you've worked with all of those?

 126 4 A. I have.

 126 5 Q. And it is talking about -- and it is

 126 6 June 9th of 2009, talking about a revised test

 126 7 protocol for CAE Vis- -- Version 4.

 126 8 That's a single-tip selectable attenuation

 126 9 earplug, isn't it?

 126 10 A. It -- it's a single-tip Combat Arms

 126 11 earplug with a switch that allows you to switch

 126 12 between listening modes.

 126 13 Q. So you can -- you can use it as a solid

 126 14 earplug with a switch or then you can switch it so

 126 15 it's got passive attenuation?

 126 16 A. Well, you can --

126:19 - 127:1 Madison 2019-12-10

 126 19 BY THE WITNESS:

 126 20 A. You can position the switch in one of two

 126 21 positions, closed for continuous noise reduction and

 126 22 open for level-dependent attenuation.

 126 23 BY MR. PIRTLE:

 126 24 Q. So it's doing the same job as the CAE

 126 25 Version 2 with just one tip?

 127 1 A. Yes, it has the same intended use.

142:9 - 142:12 Madison 2019-12-10

 142 9 (WHEREUPON, a certain document was

 142 10 marked Ted Madison Deposition Exhibit

 142 11 No. 11, for identification, as of

 142 12 12/10/2019.)

142:17 - 142:22 Madison 2019-12-10

 142 17 Q. Mr. Madison, I want to hand you a document

 142 18 which is Exhibit 11. The front page is meaningless,

 142 19 but the second page, I believe, gets into something we

 142 20 talked about earlier, which is your hearing protection

 142 21 and conservation seminars?

 142 22 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 89 of 145
Madison 2019-12-10 41

143:3 - 143:9 Madison 2019-12-10

 143 3 Q. Did you author this document?

 143 4 A. Yes.

 143 5 Q. And is this a -- it is dated, at least on

 143 6 the PowerPoint I'm looking at, October 11th of 2012.

 143 7 Do you see? We'll blow it up for you.

 143 8 There you go.

 143 9 A. I see, yes, um-hum.

144:4 - 144:8 Madison 2019-12-10

 144 4 Q. But this -- this is your thinking in

 144 5 October of 2012, at least, on the subject of hearing

 144 6 protection and conservation, correct, as reflected in

 144 7 these slides?

 144 8 A. Yes, um-hum.

145:7 - 147:2 Madison 2019-12-10

 145 7 Q. Okay. And I don't want to go through all

 145 8 of them, but I want to go to Page 11.

 145 9 A. What -- you are referring to the number

 145 10 down at the bottom right?

 145 11 Q. Yes, sir. Yes, sir.

 145 12 A. Okay.

 145 13 Q. And where it -- "Health Effects Related to

 145 14 Noise Exposure"?

 145 15 A. Yes.

 145 16 Q. And in here you've got, after that, the

 145 17 auditory system?

 145 18 A. Yes.

 145 19 Q. And the next page continues with talking

 145 20 about the inner ear and then hair cells, I assume you

 145 21 are talking about within the inner ear?

 145 22 A. That's correct.

 145 23 Q. And -- and the idea is if you are exposed

 145 24 to loud noises, the -- some of those hair cells start

 145 25 to die?

 146 1 A. They can die, yes.

 146 2 Q. And then that affects the hearing?

 146 3 A. Yes. They -- they can be damaged in a way

 146 4 that doesn't cause hair cell death which may also

 146 5 affect the hearing.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 90 of 145
Madison 2019-12-10 42

 146 6 Q. And -- and how would it affect the

 146 7 hearing, can you explain that for me?

 146 8 A. Damage to the hair cells?

 146 9 Q. Yes, sir.

 146 10 A. Affects the sensitivity to sound, to sound

 146 11 at different frequencies. So the ability to detect a

 146 12 sound at low levels may start to change after damage

 146 13 to the hair cells.

 146 14 Q. Okay.

 146 15 A. And it can affect perception of sound

 146 16 loudness. So after hair cell damage, a person's

 146 17 sensitivity to loud sound may change.

 146 18 And the third most common symptom from

 146 19 damage to the inner ear is tinnitus or tinnitus as

 146 20 many people say it, which is a ringing, a perception

 146 21 of ringing or buzzing sound in the ears.

 146 22 Q. If you don't mind, I am going to say

 146 23 tinnitus.

 146 24 A. That's fine.

 146 25 Q. That's -- that's the --

 147 1 A. That's the most common way it's

 147 2 pronounced.

147:12 - 148:9 Madison 2019-12-10

 147 12 You describe on the next page, 13, health

 147 13 effects associated with hearing loss. You go and talk

 147 14 about the damage to the hair cells?

 147 15 A. Yes.

 147 16 Q. And then health effects, tinnitus or

 147 17 tinnitus?

 147 18 A. Um-hmm, yes.

 147 19 Q. Annoying ringing or buzzing sound,

 147 20 interferes with concentration and sleeping?

 147 21 A. Yes.

 147 22 Q. That's what happens?

 147 23 A. Those are some of the things, interfering

 147 24 with concentration or sleeping may happen. It

 147 25 doesn't --

 148 1 Q. May or may not?

 148 2 A. May not.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 91 of 145
Madison 2019-12-10 43

 148 3 Q. You've just got to interview the person to

 148 4 figure that out?

 148 5 A. Yes.

 148 6 Q. And hearing loss is permanent, am I

 148 7 correct?

 148 8 A. It can be temporary or permanent.

 148 9 Q. A lot of times it's permanent?

148:11 - 148:19 Madison 2019-12-10

 148 11 BY MR. PIRTLE:

 148 12 Q. Or it can be permanent?

 148 13 A. Permanent threshold shift, or PTS, is --

 148 14 is very common. I don't know if that's what you are

 148 15 asking, but...

 148 16 Q. That's basically what I'm asking.

 148 17 And there is -- it has symptoms and

 148 18 effects on -- on the per -- person?

 148 19 A. Yes.

148:21 - 151:15 Madison 2019-12-10

 148 21 In terms of health effects, you say:

 148 22 Noise-induced hearing loss; difficulty

 148 23 hearing quiet sounds; conversation sounds muffled;

 148 24 certain words are difficult to hear correctly; need to

 148 25 ask other people to repeat; need to turn up volume on

 149 1 TV or radio.

 149 2 These are things that you have noticed

 149 3 both in the literature and as an audiologist?

 149 4 A. Yes, they are.

 149 5 Q. And then it looks like on Page 14 you do a

 149 6 hearing loss simulation and, quite frankly, I don't

 149 7 have the ability to do that so we are not going to do

 149 8 it. Then there is non-auditory effects.

 149 9 What do -- what do you mean by stress

 149 10 reactions?

 149 11 A. So exposure to noise, loud noise,

 149 12 hazardous noise, creates a stress response in the

 149 13 body.

 149 14 So when you work in a noisy area, people's

 149 15 physiological reaction is -- is similar to other kinds

 149 16 of stress, noise is a stressful hazard in the

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 92 of 145
Madison 2019-12-10 44

 149 17 workplace.

 149 18 Q. So noise itself or prolonged exposure to

 149 19 noise --

 149 20 A. I wanted to add to that if I may.

 149 21 Q. Oh, okay, I'm sorry. I'm --

 149 22 A. So I mean -- I meant two things there. I

 149 23 meant that, that working in noise can be stressful and

 149 24 you can have health effects related to that. But

 149 25 also, having hearing loss can be stressful, the person

 150 1 who has the hearing loss, it creates stress as they

 150 2 experience those symptoms.

 150 3 Q. Okay. So the stress -- the noisy

 150 4 environment in and of itself can be stressful, but the

 150 5 effects of hearing loss can also have a -- an effect

 150 6 on the individual too?

 150 7 A. Yes, that's what I was indicating.

 150 8 Q. Okay. Thank you.

 150 9 A. Uh-huh.

 150 10 Q. Irritability, is that part of that chain

 150 11 of things?

 150 12 A. It could be related to stress, yes.

 150 13 Q. Lower morale, reduced productivity,

 150 14 annoyance and disrupted -- disrupted concentration and

 150 15 fatigue.

 150 16 A. Uh-huh.

 150 17 Q. And I'm just going to ask, you believe

 150 18 that hearing loss is -- can be a serious problem?

 150 19 A. Yes, I do.

 150 20 Q. And it can be permanent?

 150 21 A. Yes, it can.

 150 22 Q. And once it occurs and it's permanent,

 150 23 there is no cure for -- for hearing loss?

 150 24 A. Yes, I think broadly that's a true

 150 25 statement, there is no medical treatment that restores

 151 1 hearing.

 151 2 Q. Okay. Well, that's -- and that's what I'm

 151 3 getting at. Now, people can get hearing aids and do

 151 4 and you've placed a lot of people with hearing aids, I

 151 5 imagine?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 93 of 145
Madison 2019-12-10 45

 151 6 A. Yes.

 151 7 Q. And that treats a symptom?

 151 8 A. Yes.

 151 9 Q. But in terms of there is nothing available

 151 10 now medically that can restore hearing loss that is

 151 11 noise induced or otherwise?

 151 12 A. That's -- that's a true statement.

 151 13 Q. The same is true with tinnitus, it can be

 151 14 permanent?

 151 15 A. It can be, yes.

152:6 - 152:13 Madison 2019-12-10

 152 6 Q. And can you have hearing loss -- can you

 152 7 have hearing loss without tinnitus?

 152 8 A. Yes.

 152 9 Q. And can you have tinnitus without hearing

 152 10 loss?

 152 11 A. Yes.

 152 12 Q. And then can you have both?

 152 13 A. Yes.

159:4 - 159:8 Madison 2019-12-10

 159 4 Q. Another part of the integration was prior

 159 5 to 3M's acquisition of Aearo, 3M's policy mandated

 159 6 testing of its products at independent facilities?

 159 7 A. That was the customary practice. I don't

 159 8 know if it was mandated by a policy.

159:13 - 159:16 Madison 2019-12-10

 159 13 The customary practice was -- would be

 159 14 there was some -- an independent facility that would

 159 15 test the, in this case, hearing protection products?

 159 16 A. Yes.

160:16 - 161:3 Madison 2019-12-10

 160 16 Julie Tremblay, you said she was your boss

 160 17 at some point?

 160 18 A. Yes, after the acquisition she came over

 160 19 to 3M in -- within the 3M technical service

 160 20 organization as my manager for the hearing protection

 160 21 business and she may have had other responsibilities

 160 22 as well.

 160 23 Q. And -- and she came over from Aearo?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 94 of 145
Madison 2019-12-10 46

 160 24 A. Yes.

 160 25 Q. And did she move from Indianapolis to

 161 1 St. Paul or Minneapolis?

 161 2 A. She actually moved from South Bridge,

 161 3 Massachusetts to St. Paul.

162:1 - 162:9 Madison 2019-12-10

 162 1 Q. It -- it says here, "3M corporate policy"

 162 2 policy and then the word "appears," "appears to be

 162 3 that Third Party testing & validation (sic) is

 162 4 required on all products."

 162 5 Did I read that correctly?

 162 6 MR. FIELDS: Verification.

 162 7 BY MR. PIRTLE:

 162 8 Q. Verification. I'm sorry.

 162 9 A. Yes, you read it correctly.

162:12 - 162:25 Madison 2019-12-10

 162 12 Q. Well, and what -- and that's what I had

 162 13 asked you about earlier.

 162 14 It looks like that 3M had a policy that

 162 15 third parties did the testing and verification on its

 162 16 products?

 162 17 A. Well, that was Mr. Klun's conclusion.

 162 18 Q. And it says: "DECISION NEEDED: Does this

 162 19 policy apply to Hearing, Head, Eye and Face Protection

 162 20 products?"

 162 21 It sounds like at least somebody within

 162 22 this acquisition group is going to make a decision as

 162 23 to whether or not you all are going to self test or

 162 24 independently test or third-party test or a

 162 25 combination of both, right?

163:4 - 163:22 Madison 2019-12-10

 163 4 A. Yes, we discussed this issue in the -- in

 163 5 the integration team.

 163 6 Q. You did.

 163 7 And -- and did you come to a conclusion

 163 8 that you would self test some products and then send

 163 9 some others out for third-party testing?

 163 10 A. Yes, I believe that's -- that's what that

 163 11 decision was.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 95 of 145
Madison 2019-12-10 47

 163 12 Q. And it says: "IF SO, WE HAVE A BIG

 163 13 PROBLEM!" And there is an exclamation point.

 163 14 "Hearing NRR results may differ from a third party

 163 15 lab: could result in relabeling packaging, literature

 163 16 changes....."

 163 17 Did you all discuss that?

 163 18 A. Yes.

 163 19 Q. And what was that discussion around?

 163 20 A. It was around what effect it might have to

 163 21 do label testing outside of the E-A-RCAL Lab routinely

 163 22 and -- and how that might affect packaging and -- and

163:23 - 163:23 Madison 2019-12-10

 163 23 labeled values and so on.

165:19 - 165:22 Madison 2019-12-10

 165 19 Q. And did you work to try to better

 165 20 understand this issue?

 165 21 A. Yes, I -- we had a discussion about this

 165 22 and they were involved as well.

165:23 - 166:13 Madison 2019-12-10

 165 23 Q. All right. What was your discussion?

 165 24 A. The discussion was whether to continue

 165 25 the -- the Aearo policy of testing at the E-A-RCAL Lab

 166 1 as our primary test lab.

 166 2 Q. And was it decided that the bulk of the

 166 3 testing would be -- continue there?

 166 4 A. Yes.

 166 5 Q. And every test that I've seen, at least on

 166 6 the Combat Arms Version 2, that was done outside of

 166 7 government was done there as best I can remember.

 166 8 Is that your memory?

 166 9 A. I -- I haven't seen all of the different

 166 10 tests that were run. The ones that I have seen were

 166 11 done at E-A-RCAL, yes.

 166 12 Q. And I think done by Elliot Berger?

 166 13 A. Or his team.

191:9 - 191:12 Madison 2019-12-10

 191 9 (WHEREUPON, a certain document was

 191 10 marked Ted Madison Deposition Exhibit

Re: [191:9-191:12]

Def Obj Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 96 of 145
Madison 2019-12-10 48

 191 11 No. 16, for identification, as of

 191 12 12/10/2019.)

191:14 - 192:7 Madison 2019-12-10

 191 14 Q. I'm going to show you what I've marked as

 191 15 Exhibit 16 to your deposition.

 191 16 Looking at 50 -- I'm sorry -- looking at

 191 17 Exhibit 16, is this a brochure for Combat Arms?

 191 18 A. That's what it looks like to me.

 191 19 Q. And does it contain description of several

 191 20 versions of the Combat Arms?

 191 21 A. Yes, it does.

 191 22 Q. There is frequently asked questions on the

 191 23 right-hand side of the page?

 191 24 A. Yes.

 191 25 Q. And if we can blow those up.

 192 1 "FREQUENTLY ASKED QUESTIONS ABOUT THE

 192 2 (single-ended) COMBAT ARMS EARPLUGS."

 192 3 Down -- it says: "How does the CAE

 192 4 protect my hearing from weapons fire or explosions in

 192 5 the Open/Weapons Fire mode."

 192 6 That's the passthrough mode, correct?

 192 7 A. Yes, sometimes it is called that.

Re: [191:14-192:7]

Def Obj Foundation (602)

OVERRULED

193:14 - 193:16 Madison 2019-12-10

 193 14 Now let's look at the next entry.

 193 15 "How Protective is a CLE (sic) in

 193 16 Open/Weapons Fire Mode?"

Re: [193:14-193:16]

Def Obj Foundation (602)

OVERRULED

194:3 - 195:11 Madison 2019-12-10

 194 3 "Level-dependent technology used in the

 194 4 earplug has been tested and found to be protective up

 194 5 to approximately 190 decibels for outdoor exposures

 194 6 (sufficient to cover most weapons in the military

 194 7 inventory, including shoulder-fired rockets)."

 194 8 Did I read that correctly?

 194 9 A. You -- you didn't mention dB peak. DBP

 194 10 refers to dB peak. That's an important distinction

 194 11 here.

 194 12 Q. Oh, okay. "dB peak of 190"?

 194 13 A. Yes.

 194 14 Q. We are -- we are going to talk about 190

Re: [194:3-195:11]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 97 of 145
Madison 2019-12-10 49

 194 15 in a little bit.

 194 16 A. Yeah.

 194 17 Q. But it says: "(Sufficient to cover most

 194 18 weapons in the military inventory, including

 194 19 shoulder-fired rockets)."

 194 20 Correct?

 194 21 A. That's what it says, yes.

 194 22 Q. That's what 3M was saying?

 194 23 A. That's what was written in this document,

 194 24 yes. So I believe, yes.

 194 25 Q. And come on back to -- go out on that

 195 1 page now. I want to go to the bottom of the page.

 195 2 There's a -- there's an asterisk at the end of that

 195 3 statement, down at the bottom.

 195 4 The asterisk goes to "Johnson, D.L. Over

 195 5 Blast Pressure (sic) Studies, U.S. Army Medical

 195 6 Research and Material Command, Albuquerque, New

 195 7 Mexico."

 195 8 A. I see that on the left-hand side of the

 195 9 page now.

 195 10 Q. Are you familiar with that citation?

 195 11 A. I'm familiar with it.

195:12 - 195:20 Madison 2019-12-10

 195 12 Q. Okay. So we'll look at another one. Let

 195 13 me show you 53. And this will be Exhibit 17. And I

 195 14 am going to mark this one.

 195 15 (WHEREUPON, a certain document was

 195 16 marked Ted Madison Deposition Exhibit

 195 17 No. 17, for identification, as of

 195 18 12/10/2019.)

 195 19 BY MR. PIRTLE:

 195 20 Q. Let me show you Exhibit 17.

Re: [195:12-195:20]

Def Obj Foundation (602)

OVERRULED

195:24 - 196:20 Madison 2019-12-10

 195 24 Q. It looks like we are looking at a New

 195 25 Dynamics 3M military and government hearing protection

 196 1 brochure, is that fair?

 196 2 A. That's what it looks like to me.

 196 3 Q. And it says:

 196 4 "Now listed on the Federal Procurement

Re: [195:24-196:20]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 98 of 145
Madison 2019-12-10 50

 196 5 List For Mandatory Purchase: Sound Guard Earplugs,

 196 6 Combat Arms Earplugs and Skull Screws Earplugs.

 196 7 Losing your hearing is not a requirement for serving

 196 8 your country. New Dynamics have partnered" -- "New

 196 9 Dynamics and 3M have partners" -- "partnered to

 196 10 provide you with a section" -- "selection of hearing

 196 11 protection devices that help meet the demanding

 196 12 hearing protection needs of the armed forces."

 196 13 Did I read that reasonably correct?

 196 14 A. Yes.

 196 15 Q. And then, again, we've talked about New

 196 16 Dynamics and the partnership.

 196 17 Do you know what AbilityOne is?

 196 18 A. I believe it relates to that federal

 196 19 program that provides companies that employ disabled

 196 20 people certain purchasing priorities or preferences.

197:7 - 198:9 Madison 2019-12-10

 197 7 BY MR. PIRTLE:

 197 8 Q. All right. Go to the next page.

 197 9 A. Okay.

 197 10 Q. Des -- Designed for Combat. And of course

 197 11 there is a picture of the Combat Arms Version 2 down

 197 12 there, correct?

 197 13 A. Yes.

 197 14 Q. Now, the second paragraph, it says:

 197 15 "The level-dependent technology used in

 197 16 the earplug has been tested and found to be protective

 197 17 up to approximately 190 dBP for outdoor exposures

 197 18 (sufficient to cover most weapons in the military

 197 19 inventory, including shoulder-fired rockets)."

 197 20 And then there is another citation or an

 197 21 asterisk, and it refers down to D.L. Johnson, correct,

 197 22 same study?

 197 23 A. Yes, I believe it is.

 197 24 Q. Do you know what shoulder-fired rockets 3M

 197 25 is referring to here?

 198 1 A. No, I don't.

 198 2 Q. Do you know what was in the US military

 198 3 inventory at this point in time?

Re: [197:7-198:9]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 99 of 145
Madison 2019-12-10 51

 198 4 A. No, I don't.

 198 5 Q. Any familiarity with shoulder-fired

 198 6 rockets at all?

 198 7 A. None whatsoever.

 198 8 Q. Have you ever heard one go off?

 198 9 A. I have not.

199:22 - 200:1 Madison 2019-12-10

 199 22 Q. I mean, these are people out there

 199 23 protecting this country and 3M is saying, Hey, you can

 199 24 fire shoulder-fired rocket with this earplug in

 199 25 clearly.

 200 1 That's what they are saying, isn't it?

Re: [199:22-200:1]

Def Obj Foundation (602); misstates, 

argumentative (611, 403)

SUSTAINED as to “I mean, these are 

people out there protecting this 

country and.”

OVERRULED in all other respects

200:4 - 200:5 Madison 2019-12-10

 200 4 A. What they said was that the -- the -- the

 200 5 earplugs are protective up to 190 dB Peak.

Re: [200:4-200:5]

Def Obj Foundation (602); misstates, 

argumentative (611, 403)

OVERRULED

200:6 - 200:17 Madison 2019-12-10

 200 6 BY MR. PIRTLE:

 200 7 Q. Which covers most weapons in the US

 200 8 inventory, including shoulder-fired rockets?

 200 9 A. I don't have any background in that area

 200 10 to say yes or no.

 200 11 Q. I'm not asking if you have background.

 200 12 That's just what the company you used to work for said

 200 13 in this brochure, isn't it?

 200 14 A. Yes, they -- they listed examples of

 200 15 weapons, yes.

 200 16 Q. That was one of the examples used?

 200 17 A. Uh-huh, yes, it was.

202:14 - 202:24 Madison 2019-12-10

 202 14 Q. They're -- the: "You protect us" is

 202 15 talking to the soldiers, the men and women of the U.S.

 202 16 Army, Marine Corps, Navy, Air Force, right?

 202 17 A. I don't know who the -- the audience is.

 202 18 Q. And it says: "We protect you." You don't

 202 19 know that that's meant to mean the -- the people that

 202 20 are using this plug?

 202 21 A. That seems logical.

 202 22 Q. Well, that's the only reasonable

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 100 of 145
Madison 2019-12-10 52

 202 23 interpretation of it there is, isn't it?

 202 24 A. I don't know.

203:4 - 203:7 Madison 2019-12-10

 203 4 Q. -- but the truth of the matter is, "You

 203 5 protect us," you are talking, you are saying, Thank

 203 6 you, soldiers, for protecting us, we protect you, you

 203 7 are talking about the soldiers' hearing?

Re: [203:4-203:7]

Def Obj Foundation (602); 

argumentative (611, 403)

OVERRULED

203:10 - 203:12 Madison 2019-12-10

 203 10 Q. That's just the truth, isn't it?

 203 11 A. I think that's a reasonable interpretation

 203 12 of that phrase.

Re: [203:10-203:12]

Def Obj Foundation (602); 

argumentative (611, 403)

OVERRULED

204:17 - 204:24 Madison 2019-12-10

 204 17 BY MR. PIRTLE:

 204 18 Q. Let me show you Exhibit 18.

 204 19 This is a PowerPoint presentation out of

 204 20 your files, and I want to know if you wrote it, for

 204 21 one? I think you were the custodian.

 204 22 A. I did not write this.

 204 23 Q. Do you know where it come from?

 204 24 A. I don't recall.

Re: [204:17-204:24]

Def Obj Foundation (602)

OVERRULED

205:18 - 206:20 Madison 2019-12-10

 205 18 Q. All right. Well, I believe it's got a

 205 19 3M -- it is out of the 3M production, but at any rate,

 205 20 let's go through it for a little bit.

 205 21 It says: "The Hearing Destroyer. Impulse

 205 22 noise characteristics of small fire" -- "small arms

 205 23 weapons fire most hazardous to the hearing. High

 205 24 frequency content, short rise time, high intensity

 205 25 level. Potential for multiple exposures. Reflected

 206 1 surfaces (urban combat) increase duration of (sic)

 206 2 hazard of impulse noise."

 206 3 MR. FIELDS: "Duration and hazard."

 206 4 BY MR. PIRTLE:

 206 5 Q. "Duration and hazard of impulse noise.

 206 6 One unprotected firing session can cause permanent

 206 7 damage."

 206 8 You do agree with that statement, don't

 206 9 you?

 206 10 A. The -- are you asking about the last

Re: [205:18-206:20]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 101 of 145
Madison 2019-12-10 53

 206 11 bullet?

 206 12 Q. Sure.

 206 13 A. That "one protected (sic) firing session

 206 14 can cause permanent damage"?

 206 15 Q. Sure. "One unprotected" or "firing

 206 16 session" --

 206 17 A. Yes, I'm sorry if I said it incorrectly.

 206 18 Q. Okay. "One unprotected firing session can

 206 19 cause permanent damage"?

 206 20 A. That's possible.

209:13 - 209:16 Madison 2019-12-10

 209 13 (WHEREUPON, a certain document was

 209 14 marked Ted Madison Deposition Exhibit

 209 15 No. 19, for identification, as of

 209 16 12/10/2019.)

Re: [209:13-209:16]

Def Obj Foundation (602)

OVERRULED

209:17 - 211:8 Madison 2019-12-10

 209 17 BY MR. PIRTLE:

 209 18 Q. I'm going to show you what I marked to

 209 19 your deposition as No. 19. This is a 3M Occupational

 209 20 Health and Environmental Safety Division, what they

 209 21 used to call the division that you worked for?

 209 22 A. That's correct.

 209 23 Q. It is 3M Military Applications.

 209 24 Do you recognize this document?

 209 25 A. I don't have any specific recollection of

 210 1 it. It looks like -- similar to many that I've seen.

 210 2 Q. This seems to be a -- a catalog, it's

 210 3 geared towards the U.S. military, and the reason why I

 210 4 ask you if -- if you recognize it, I see a lot of

 210 5 Peltor products in here as well as Combat Arms?

 210 6 A. Yes, it looks like a product catalog.

 210 7 Q. And it would be a product catalog that

 210 8 would have been produced in the ordinary course of

 210 9 what 3M is doing, selling earplugs to military, and it

 210 10 looks like glasses and everything else?

 210 11 A. Yes, a wide variety of safety products for

 210 12 the military.

 210 13 Q. Go to Page 12, and I think you'll see

 210 14 there that is the Combat Arms Passive Hearing

Re: [209:17-211:8]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 102 of 145
Madison 2019-12-10 54

 210 15 Protector Version 2 ear -- earplug?

 210 16 A. At the top of the page, yes, the

 210 17 dual-ended product.

 210 18 Q. It is like these that I have been showing

 210 19 all day?

 210 20 A. Yes.

 210 21 Q. All right.

 210 22 And then it says: "Specifically (sic)

 210 23 developed for the military. Combat mode: This

 210 24 earplug" -- "earplug's patented design allows wearers

 210 25 to hear low-level sounds critical to mission safety,

 211 1 conversation, footsteps, rifle bolts. When needed,

 211 2 the plug's filter reacts to provide instant protection

 211 3 from high level noises like weapons fire and

 211 4 explosion" -- "explosions. Steady state mode: For

 211 5 protection against constant noise (aircraft, armored

 211 6 vehicles, et cetera) without hear-through."

 211 7 Did I read that reasonably correct?

 211 8 A. Yes.

211:17 - 211:21 Madison 2019-12-10

 211 17 Q. All right. In this -- in this particular

 211 18 representation in this catalog, the filter reacts to

 211 19 promote instant protection from high level noises like

 211 20 weapons fire, which we've already been over, in this

 211 21 case explosives?

Re: [211:17-211:21]

Def Obj Foundation (602)

OVERRULED

211:24 - 212:14 Madison 2019-12-10

 211 24 Q. Did I read that correctly?

 211 25 A. It says "explosions," yes, um-hum.

 212 1 "Weapons fire and explosions," um-hum.

 212 2 Q. Explosions being something blowing up?

 212 3 A. I think that's a basic definition of an

 212 4 explosion, yeah.

 212 5 Q. Improvise -- improvised explosive devices?

 212 6 A. That would be a type of explosion, as I

 212 7 understand it.

 212 8 Q. Okay. And in this particular case, this

 212 9 catalog is stating, Hey, this yellow end will protect

 212 10 against that?

 212 11 A. It provides instant protection from high

Re: [211:24-212:14]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 103 of 145
Madison 2019-12-10 55

 212 12 level noises, that's what it says, yes.

 212 13 Q. Like weapons fire and explosions?

 212 14 A. Um-hum.

212:24 - 213:10 Madison 2019-12-10

 212 24 Q. Yeah.

 212 25 One of the purposes of the -- of the

 213 1 Combat Arms Version 2 was to allow a soldier, you all

 213 2 have the term "situational awareness," in other words,

 213 3 be able to hear at normal levels but yet give a level

 213 4 of protection if there is an impulse noise?

 213 5 A. Yes, I would say that the -- it was

 213 6 designed to help preserve that situational awareness

 213 7 when worn properly.

 213 8 Q. And that's the way it was sold to your

 213 9 knowledge?

 213 10 A. I believe so.

213:11 - 213:25 Madison 2019-12-10

 213 11 Q. I'm going to show you what I'm marking as

 213 12 Exhibit 20 to your deposition.

 213 13 (WHEREUPON, a certain document was

 213 14 marked Ted Madison Deposition Exhibit

 213 15 No. 20, for identification, as of

 213 16 12/10/2019.)

 213 17 BY MR. PIRTLE:

 213 18 Q. Just let me know when you are ready to go.

 213 19 A. Okay.

 213 20 Q. Do you recognize these -- this series of

 213 21 documents?

 213 22 A. Pardon me?

 213 23 Q. Do you recognize this series of e-mails?

 213 24 A. Yes.

 213 25 Q. When is the last time you saw them?

Re: [213:11-213:25]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

215:7 - 219:1 Madison 2019-12-10

 215 7 A. The last time I saw this would be close to

 215 8 the time that it was written in 2014.

 215 9 BY MR. PIRTLE:

 215 10 Q. Okay.

 215 11 A. Or -- or in that time soon after that.

 215 12 Q. Are you familiar with it?

Re: [215:7-219:1]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 104 of 145
Madison 2019-12-10 56

 215 13 A. Yes.

 215 14 Q. If you turn to the next-to-last page,

 215 15 which is 10146.

 215 16 A. Okay.

 215 17 Q. It looks like a Ryan Kamerzell, zellee, or

 215 18 zell?

 215 19 A. Um-mm, yes.

 215 20 Q. CI -- I mean, yeah, CIH, from Lawrence

 215 21 Liver -- Livermore National Laboratory, Worker Safety

 215 22 and Health, is -- is sending an e-mail to various

 215 23 members of 3M, Eric, Bill and Larry.

 215 24 A. Yes, I see that.

 215 25 Q. Are you familiar with Lawrence

 216 1 Livermore --

 216 2 A. Yes.

 216 3 Q. -- National Laboratory?

 216 4 A. Yes.

 216 5 Q. Is it in San Francisco?

 216 6 A. It's in -- outside of Oakland, yeah.

 216 7 Q. University of California-Davis?

 216 8 A. I don't -- I don't know about its

 216 9 university affiliation.

 216 10 Q. They do nuclear research there?

 216 11 A. It's East -- it's East -- East Bay.

 216 12 Q. They do nuclear research there, right?

 216 13 A. I don't know.

 216 14 Q. So: "Thank you for your information. I'm

 216 15 very excited to get my hands on the technical proof

 216 16 that the 3M Combat Arms plugs are effective up to

 216 17 190 dB, even though they only have an NRR of 21."

 216 18 Did I read that reasonably correct?

 216 19 A. I believe so.

 216 20 Q. "We want to issue these to our protective

 216 21 force, but can't at the moment with the low NRR. We

 216 22 have an 8-hour TWA exposures" -- we have 8-hour TWA

 216 23 exposures upwards of 111 dBA. We currently use the

 216 24 foam earplugs and muffs for double" -- "double

 216 25 protection."

 217 1 Did I read that correctly?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 105 of 145
Madison 2019-12-10 57

 217 2 A. Yes, I believe so.

 217 3 Q. What -- what is TWA?

 217 4 A. That's time weighted average.

 217 5 Q. These are saying that they are

 217 6 currently -- they have 8-hour time weighted average of

 217 7 111 average decibels?

 217 8 A. dBA is a -- is a specific decibel scale,

 217 9 the A scale, and so the statement appears to say that

 217 10 they are eight-hour average, time weighted average,

 217 11 for these workers is, I don't know what upwards of,

 217 12 but it is in that range of 111 dBA.

 217 13 Q. Go to Page 144. This is an e-mail from

 217 14 Jason Jones, whom you've identified, correct?

 217 15 A. I don't know that we've mentioned Jason

 217 16 today. He is a marketer, yeah.

 217 17 Q. And it is to Larry Dick?

 217 18 A. Yes.

 217 19 Q. And who is that?

 217 20 A. Larry was a 3M PSD sales specialist,

 217 21 hearing specialist in southern California.

 217 22 Q. It says: "Larry, I can't answer most of

 217 23 the questions below." And "Ted we need you (sic) to

 217 24 weigh in here."

 217 25 That -- you are the Ted, aren't you?

 218 1 A. Yes, "Ted will need to weigh in here,"

 218 2 yes.

 218 3 Q. And it says: "If" -- and I'm going down

 218 4 to the third-to-the-bottom bullet point -- "If you are

 218 5 at the range shooting and the guns are going off a lot

 218 6 (every 30 seconds, et cetera), the open position of

 218 7 the combat arms plug is not going to provide

 218 8 protection. Your ear cannot take a 110 dB," decibel,

 218 9 "blast every 30 seconds."

 218 10 Did I read that correctly?

 218 11 A. Yes, you read it correctly.

 218 12 Q. Do you agree with that statement?

 218 13 A. No, I do not.

 218 14 Q. What part of it do you disagree with?

 218 15 A. Personally, the -- the open position of

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 106 of 145
Madison 2019-12-10 58

 218 16 the Combat Arms is not going to provide protection,

 218 17 that's what Mr. Jones said, and that's not a true

 218 18 statement.

 218 19 And then, secondly, your ear cannot take a

 218 20 110-dB blast every 30 seconds, that's -- that's a

 218 21 gross overstatement I think. I wouldn't agree with

 218 22 that. If you are wearing protection, it may be that

 218 23 that's a safe level to be exposed.

 218 24 Q. Well, let's turn over to Page 143.

 218 25 The -- this is Mr. Berger, correct?

 219 1 A. Bear with me a moment --

219:12 - 220:13 Madison 2019-12-10

 219 12 Q. And he said: "The onset of risk for

 219 13 impulse noise is normally estimated at 135 to 140 dB

 219 14 Peak."

 219 15 Is that what he says?

 219 16 A. That is what he says.

 219 17 Q. Do you agree with that?

 219 18 A. Yes, I do.

 219 19 Q. "Thus, if gunfights" -- "shots can be

 219 20 reduced below that level, they are considered

 219 21 essentially safe. However, when shooting in an indoor

 219 22 reverberant space, the reverberant energy, which is

 219 23 much longer lived than the impulses, even at low (sic)

 219 24 level, can still be hazardous."

 219 25 Did I read that reasonably correct?

 220 1 A. "Even at a lower level can still be

 220 2 hazardous."

 220 3 Q. Do you agree with that?

 220 4 A. Yes, I do agree.

 220 5 Q. "At indoor ranges many weapons firing more

 220 6 protection than can be provided by the" -- "many" --

 220 7 "at indoor ranges with many weapons firing, more

 220 8 protection than can be provided by the Combat Arms

 220 9 earplug is required."

 220 10 Did I read that correctly?

 220 11 A. Yes.

 220 12 Q. Do you agree with that?

 220 13 A. Yes, I do.

Re: [219:12-220:13]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 107 of 145
Madison 2019-12-10 59

220:14 - 220:15 Madison 2019-12-10

 220 14 Q. So these Combat Arms earplugs are not good

 220 15 for indoor in the yellow position in the ear?

Re: [220:14-220:15]

Def Obj Relevance (401, 402); 

Prejudice (403); Misstates (611, 403)

OVERRULED

220:18 - 220:22 Madison 2019-12-10

 220 18 A. The yellow end in the ear, that

 220 19 level-dependent mode, will provide some reduction in

 220 20 the sound, the peak sound level in an indoor range.

 220 21 The phrase -- the statement that he is making here is

 220 22 whether that's sufficient to reduce risk.

Re: [220:18-220:22]

Def Obj Misstates (611, 403); 

Relevance (401, 402); Prejudice (403)

OVERRULED

221:14 - 221:24 Madison 2019-12-10

 221 14 It says: "Even at a lower level can still

 221 15 be hazardous. At indoor ranges with many weapons

 221 16 firing, more protection than can be provided by the

 221 17 CAE is required," "is required."

 221 18 Is that true?

 221 19 A. I believe that in some cases that would be

 221 20 true.

 221 21 Q. All right. Now, these -- these Combat

 221 22 Arms Version 2 earplugs were sold to the US military,

 221 23 right?

 221 24 A. Yes.

Re: [221:14-221:24]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

221:25 - 222:1 Madison 2019-12-10

 221 25 Q. It's wholly foreseeable that folks are

 222 1 going to be shooting weapons indoors, isn't it?

Re: [221:25-222:1]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); Calls 

for legal conclusion (403)

OVERRULED

222:4 - 222:6 Madison 2019-12-10

 222 4 A. I -- I don't know how they are -- how they

 222 5 shoot their weapons or -- or practice shooting. I

 222 6 have not been to a military base.

Re: [222:4-222:6]

Def Obj Foundation (602); Calls for 

legal conclusion (403)

OVERRULED

222:7 - 223:12 Madison 2019-12-10

 222 7 BY MR. PIRTLE:

 222 8 Q. Well, let's just handle it this way. On

 222 9 the gun range situation, you've seen or been to indoor

 222 10 gun ranges, particularly handgun ranges, haven't you?

 222 11 A. Yes, I have.

 222 12 Q. Would it surprise you to find out that the

 222 13 military has indoor handgun ranges for their people to

 222 14 qualify with?

 222 15 A. You are asking me if it would surprise me?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 108 of 145
Madison 2019-12-10 60

 222 16 Q. Surprise you.

 222 17 A. That wouldn't surprise me.

 222 18 Q. And you know -- and you would know as

 222 19 somebody who has watched the television news that --

 222 20 and you would have certainly known by the time that

 222 21 these documents were written in 2014 that, outside of

 222 22 the gun range scenario, that there are soldiers that

 222 23 are going and clearing houses in Iraq, in Afghanistan,

 222 24 discharging weapons indoors on top of each other.

 222 25 You've seen that on the news, hadn't you?

 223 1 A. I've seen video of combat situations,

 223 2 urban combat.

 223 3 Q. You've heard of Fallujah, hadn't you?

 223 4 A. I have.

 223 5 Q. Do you know of any statement by 3M that

 223 6 said, Hey, we are selling these to you, but they won't

 223 7 protect you in Fallujah?

 223 8 A. No, I know of no such statement.

 223 9 Q. Or they won't protect you in an indoor

 223 10 range?

 223 11 A. I haven't seen a statement phrased that

 223 12 way before, no.

225:2 - 225:3 Madison 2019-12-10

 225 2 Now, this is you weighing in, correct?

 225 3 A. Yes, these are my comments.

Re: [225:2-225:3]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

225:17 - 227:4 Madison 2019-12-10

 225 17 BY MR. PIRTLE:

 225 18 Q. "There is more and more evidence that

 225 19 damage to ears can occur even when TTS does not

 225 20 occur."

 225 21 I'm on the last sentence there. I'll read

 225 22 the whole thing.

 225 23 "Also, we need to be very clear that

 225 24 Combat Arms earplugs will not reduce 190 decibel

 225 25 explosions to a safe level of 140 or less. The Army

 226 1 study only looked at whether soldiers experienced

 226 2 temporary threshold shifts (TTSs) after a few blasts.

 226 3 There is more and more evidence that damage to ears

 226 4 can occur even when the TTS does not occur."

Re: [225:17-227:4]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 109 of 145
Madison 2019-12-10 61

 226 5 What does that mean?

 226 6 A. That was a statement that I made based on

 226 7 my understanding at the time that I was referring to

 226 8 research that's being done with laboratory animals

 226 9 looking at the onset of TTS and PTS, permanent

 226 10 threshold shift, and neurological damage to the hair

 226 11 cells and the underlying systems. Some emerging

 226 12 science.

 226 13 Q. And you say: "There is more and more

 226 14 evidence that damage to the ears can occur even when

 226 15 TTS does not..."

 226 16 A. That's what I said at the time. I came to

 226 17 learn later that may not be the case.

 226 18 Q. How much later?

 226 19 A. In this discussion with Mr. Berger.

 226 20 Q. "More broadly, I'm not sure the Combat

 226 21 Arms makes sense in this application. The benefit of

 226 22 Combat Arms is to allow the wearer to hear better

 226 23 between impulses (i.e. situational awareness) which

 226 24 makes sense in a tactical police, hunting, or military

 226 25 combat situation."

 227 1 Is that what you wrote?

 227 2 A. Yes, I wrote that.

 227 3 Q. Do you agree with it?

 227 4 A. Yes.

231:15 - 232:5 Madison 2019-12-10

 231 15 Q. We were going through some statements that

 231 16 you and Elliot -- Elliot Berger had made about the

 231 17 suitability of the Combat Arms earplug Version 2.

 231 18 During part of that discussion I showed

 231 19 you a footnote and it was a footnote to the -- what we

 231 20 call the Johnson Blast study. I think I asked you if

 231 21 you were familiar with it and you said yes?

 231 22 A. Yes, I am familiar.

 231 23 Q. When did you become familiar with it?

 231 24 A. I believe it was at -- at the time of this

 231 25 last conversation with Mr. Berger in 2014 or

 232 1 thereabouts that I became familiar.

 232 2 Q. Was that the first -- first time that you

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 110 of 145
Madison 2019-12-10 62

 232 3 had familiarized yourself with the Johnson Blast

 232 4 study?

 232 5 A. I don't recall seeing it before that time.

233:9 - 233:11 Madison 2019-12-10

 233 9 BY MR. PIRTLE:

 233 10 Q. I want to show you Exhibit 21. I'm going

 233 11 to hand you the Johnson Blast study?

Re: [233:9-233:11]

Def Obj Foundation (602)

OVERRULED

233:15 - 233:17 Madison 2019-12-10

 233 15 Q. So this is cited as the basis for the

 233 16 statement that the earplugs will protect up to

 233 17 190 dBA, correct, or dBP, peak?

Re: [233:15-233:17]

Def Obj Foundation (602)

OVERRULED

233:19 - 234:4 Madison 2019-12-10

 233 19 BY THE WITNESS:

 233 20 A. The claim that you are referring to is

 233 21 that the Combat Arms earplug Version 2 dual-ended

 233 22 earplug is protective up to 190-dB peak?

 233 23 Q. Yes.

 233 24 A. And I believe that this is the study on

 233 25 which that is based. I'd need to verify the dates

 234 1 and...

 234 2 Q. Well, can you do that if you want to.

 234 3 This -- this is the study that's in that footnote.

 234 4 A. Okay.

Re: [233:19-234:4]

Def Obj Foundation (602)

OVERRULED

234:5 - 234:6 Madison 2019-12-10

 234 5 Q. And just so we are clear, impulse noise is

 234 6 measured in dBP or dB Peak, correct?

234:9 - 235:11 Madison 2019-12-10

 234 9 BY THE WITNESS:

 234 10 A. Yes, that's -- that's one way to measure

 234 11 impulse noise.

 234 12 BY MR. PIRTLE:

 234 13 Q. Steady state noise is normally measured in

 234 14 dBA, we went through both of them?

 234 15 A. That's right.

 234 16 Q. All right. First off, being these studies

 234 17 were -- let's just put the first page up.

 234 18 Blast Overpressure Studies With Animals

 234 19 and Man. And then subtitles: Task Order One: Firing

 234 20 From a Bunker Simulator Study; Task Order Four:

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 111 of 145
Madison 2019-12-10 63

 234 21 Nonlinear Plug Study.

 234 22 And that's big enough for me. I'm just

 234 23 going to go down here and read through it, so you can

 234 24 take that blowup out.

 234 25 Principal investigator Daniel Johnson,

 235 1 Ph.D.

 235 2 Do you know Daniel Johnson?

 235 3 A. I knew him.

 235 4 Q. Did you know him during this time period?

 235 5 A. No.

 235 6 Q. September 1996 --

 235 7 A. Let me -- I met him in the late '90s in an

 235 8 ANSI committee. I don't know what year it was.

 235 9 Q. But you were not familiar with this study

 235 10 at the time?

 235 11 A. No, no.

235:12 - 236:15 Madison 2019-12-10

 235 12 Q. Now, obviously, since the date -- the

 235 13 report date is September of 1996, he did not test

 235 14 Combat Arms earplugs, safe to say?

 235 15 A. I don't know.

 235 16 Q. Do you know if he tested in this Johnson

 235 17 Blast study the Combat earplugs filtering mechanism?

 235 18 A. I don't know.

 235 19 Q. Do you know if -- I know it wasn't

 235 20 yourself -- if Elliot Berger or somebody else at Aearo

 235 21 extrapolated results from this study and applied them

 235 22 to the Combat Arms Version 2 and actually subsequent

 235 23 versions of Combat Arms too -- also?

 235 24 A. I don't know if Mr. Berger extrapolated

 235 25 results, as you've described it.

 236 1 Q. Have you been under the impression that

 236 2 the Combat Arms Version 2 was actually tested in the

 236 3 study?

 236 4 A. I don't recall what form it was in,

 236 5 Version 1 or 2 or some other version during the study,

 236 6 no.

 236 7 Q. Okay. Do you recall the results of the

 236 8 study?

Re: [235:12-236:15]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 112 of 145
Madison 2019-12-10 64

 236 9 A. The -- I did not read this study carefully

 236 10 front to back. The discussion that I had with

 236 11 Mr. Berger that we were discussing here a few moments

 236 12 ago was to the conclusion about the 190-dB peak. And

 236 13 when this was provided to me by Mr. Berger, I accepted

 236 14 his assessment of the validity of that claim based on

 236 15 these data.

237:6 - 238:18 Madison 2019-12-10

 237 6 Q. It is P0164B.146.

 237 7 A. Okay. Yes, I have it.

 237 8 Q. Recommendation, Section VI, 1.A and B.

 237 9 A. Yes.

 237 10 Q. "Firing from a bunker simulator." This

 237 11 is: "Because we have no" -- "no data with respect to

 237 12 plugs, we cannot recommend plugs for this type of

 237 13 reverberant exposure."

 237 14 A. Can you -- can you point out where you are

 237 15 reading?

 237 16 Q. Yes. Yes, sir. It is being highlighted

 237 17 as we go.

 237 18 A. Okay.

 237 19 Q. It might not seem like it because there

 237 20 are two of us doing this.

 237 21 A. I understand. Okay.

 237 22 Q. So: "Firing from a bunk" --

 237 23 A. I see.

 237 24 Q. "Firing from a bunker simulator." That is

 237 25 what they are saying under B, "Freefield waveform

 238 1 exposures."

 238 2 A. I see that.

 238 3 Q. I'm going to go to the second paragraph.

 238 4 "Based on this current study, this

 238 5 modification to this recommendation would be to state

 238 6 that the only proven adequate protection is the

 238 7 radical (sic) muff."

 238 8 A. "RACAL."

 238 9 Q. "RACAL muff" --

 238 10 A. Uh-huh.

 238 11 Q. -- "or the E-A-R foam protection. Based

Re: [237:6-238:18]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 113 of 145
Madison 2019-12-10 65

 238 12 on our problems fitting" -- "with fitting the

 238 13 triple-flange plugs, we cannot" --

 238 14 A. "We are not."

 238 15 Q. -- "we are not sure that any plug that

 238 16 cannot obtain a good seal in a very high percentage of

 238 17 the population should be used for this very high level

 238 18 impulse noises."

238:19 - 238:19 Madison 2019-12-10

 238 19 MR. FIELDS: "For the."

Re: [238:19-238:19]

Pltf Obj improper counter

SUSTAINED

238:21 - 239:23 Madison 2019-12-10

 238 21 A. I see that.

 238 22 BY MR. PIRTLE:

 238 23 Q. All right. He is talking about

 238 24 triple-flange plugs, right, or that -- Johnson is in

 238 25 this section?

 239 1 A. That's the -- that's the phrase that he

 239 2 uses "with the problems with fitting triple-flange" --

 239 3 "the triple-flange plugs."

 239 4 Q. And Combat Arms Version 2 is a

 239 5 triple-flange plug?

 239 6 A. It is.

 239 7 Q. So is Version 3, so is Version 4, right?

 239 8 A. Yes.

 239 9 Q. Next paragraph: "We cannot recommend

 239 10 general use of the two nonlinear plugs we tested. It

 239 11 is possible that the French No. 1 Plug, modified to

 239 12 put the filter in the stem instead of the front, might

 239 13 be acceptable for some special situations. More

 239 14 testing, however, is needed to demonstrate this."

 239 15 Did I read that reasonably correct?

 239 16 A. You did.

 239 17 Q. Do you know what plug was a triple-flange

 239 18 plug?

 239 19 A. No, I don't.

 239 20 Q. In this study, would it surprise you if it

 239 21 was the French No. 1?

 239 22 A. As I read it, the author refers to French

 239 23 No. 1 Plug.

Re: [238:21-239:23]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 114 of 145
Madison 2019-12-10 66

239:24 - 240:11 Madison 2019-12-10

 239 24 Q. The French No. 1 Plug was the

 239 25 triple-flange plug in this study. And what the author

 240 1 says is, if you modified it and put this filter that

 240 2 they are using in the stem instead of the front, it

 240 3 might be acceptable for some special situation. More

 240 4 test -- testing, however, is needed to demonstrate

 240 5 this.

 240 6 In other words, we don't have enough data,

 240 7 isn't that what he is saying?

 240 8 A. He is saying more testing is needed.

 240 9 Q. To even demonstrate whether it's -- it's

 240 10 viable in special situations?

 240 11 A. Right. He is hypothesizing, yeah.

Re: [239:24-240:11]

Def Obj Foundation (602); 701; 702

OVERRULED

240:12 - 241:6 Madison 2019-12-10

 240 12 Q. Well, he is sure not -- I don't know what

 240 13 he is hypothesizing. He is saying I don't have enough

 240 14 data to recommend it, basically.

 240 15 A. He says it might be acceptable for some

 240 16 situations, so that sounds like a better answer.

 240 17 Q. Did you have a different impression of

 240 18 what Johnson Blast said?

 240 19 A. Different than what, sir?

 240 20 Q. Than what this conclusion was. I went

 240 21 right to it.

 240 22 A. As I said, I didn't read the whole study,

 240 23 so I don't -- I wanted to understand the basis for the

 240 24 190-dB Peak claim and Mr. Berger provided this to me

 240 25 as the basis for that.

 241 1 Q. Is there any other document, any other

 241 2 study that you have been provided as the basis for the

 241 3 190 peak claim other than the Johnson blast study

 241 4 that's before you?

 241 5 A. I have not been provided with any other

 241 6 studies of that type.

Re: [240:12-241:6]

Def Obj Foundation (602); 701; 702

OVERRULED

241:17 - 242:9 Madison 2019-12-10

 241 17 Q. Do you -- do you know of any other

 241 18 statements within this document or anywhere else that

 241 19 supports that it is -- that -- that a triple-flange

Re: [241:17-242:9]

Def Obj Foundation (602); 701; 702

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 115 of 145
Madison 2019-12-10 67

 241 20 plug, such as this, is protective up to 190 dBP?

 241 21 A. I don't have any other specific parts of

 241 22 the study that I could point to that would say that.

 241 23 Q. Well --

 241 24 A. I deferred to Mr. Berger's expert opinion

 241 25 on that.

 242 1 Q. You -- you deferred to Mr. Berger's expert

 242 2 opinion that this study supported that the plugs were

 242 3 protective to 190 dBP?

 242 4 A. Yes, I did.

 242 5 Q. And absent -- with a -- and that is

 242 6 basically your sole basis, other than knowing about

 242 7 this study and having a copy of it, for the statement

 242 8 it's protective for impulse noises to -- to 190 dBP?

 242 9 A. Yes.

242:23 - 243:22 Madison 2019-12-10

 242 23 Were you under the impression that the

 242 24 Combat Arms dual-ended earplug in some form of

 242 25 configuration was tested in the Johnson Blast study?

 243 1 A. In some form or configuration, yeah, I

 243 2 don't know -- I don't know whether it's considered the

 243 3 same earplug or not. Again, I haven't carefully

 243 4 read --

 243 5 Q. Have you --

 243 6 A. -- the description of the plug that was

 243 7 tested.

 243 8 Q. Have you ever heard of the Combat Arms

 243 9 earplug Version No. 2 being referred to as a French

 243 10 No. 1?

 243 11 A. I have not.

 243 12 Q. Were you under the impression that the

 243 13 filter, which was, as you pointed out, invented in

 243 14 France, was tested in this Johnson Blast study?

 243 15 A. That was my understanding when I discussed

 243 16 this with Mr. Berger.

 243 17 Q. Okay. So, and -- well, even if it was

 243 18 tested in this Johnson Blast study, which it was not,

 243 19 and I'm not representing that it was, still the

 243 20 conclusion is: It might be acceptable in some special

Re: [242:23-243:22]

Def Obj Foundation (602); 701; 702

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 116 of 145
Madison 2019-12-10 68

 243 21 situations, more testing, however, is needed to

 243 22 demonstrate this. More data?

243:17 - 243:22 Madison 2019-12-10

 243 17 Q. Okay. So, and -- well, even if it was

 243 18 tested in this Johnson Blast study, which it was not,

 243 19 and I'm not representing that it was, still the

 243 20 conclusion is: It might be acceptable in some special

 243 21 situations, more testing, however, is needed to

 243 22 demonstrate this. More data?

Re: [243:17-243:22]

Def Obj Improper attorney colloquy 

(401, 402, 403); speculation, foundation 

(602); misstates, assumes facts, 

argumentative, compound with 243:25 

(611, 403)

SUSTAINED as to “which it was not, 

and I’m not representing that it was”

OVERRULED in all other respects

243:25 - 244:2 Madison 2019-12-10

 243 25 Q. Fair?

 244 1 A. That's what it says: "More testing,

 244 2 however, is needed to demonstrate this."

Re: [243:25-244:2]

Def Obj Improper attorney colloquy 

(401, 402, 403); speculation, 

foundation (602); misstates, assumes 

facts, argumentative, compound with 

243:17-22 (611, 403); Foundation 

(602); 701; 702

DEFER RULING

244:3 - 244:11 Madison 2019-12-10

 244 3 Q. And is the Johnson Blast study, to your

 244 4 knowledge, the basis for the statements in the

 244 5 brochures that we've looked through, and I think I can

 244 6 pull out citations if need be, for the statements -- I

 244 7 know in fact I've showed you one -- that the earplug,

 244 8 the Combat Arms Version 2, was protective to 190 dBP

 244 9 as -- as stated in the brochures?

 244 10 A. That was my understanding, that the study

 244 11 was the basis for that claim.

Re: [244:3-244:11]

Def Obj Foundation (602); 701; 702

DEFER RULING

246:12 - 246:14 Madison 2019-12-10

 246 12 Q. I hand you what I've marked as Exhibit 22

 246 13 to your deposition?

 246 14 A. Okay.

Re: [246:12-246:14]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

246:25 - 247:4 Madison 2019-12-10

 246 25 Q. Do you recognize the document?

 247 1 A. Yes.

 247 2 Q. When is the last time you saw this?

 247 3 A. I would -- I recall seeing it at the time

 247 4 and -- and soon afterward.

Re: [246:25-247:4]

Def Obj Hearsay (801, 802); Prejudice 

(403); Relevance (401, 402); 404; 3M 

MIL No. 10

SUSTAINED

247:5 - 247:16 Madison 2019-12-10

 247 5 Q. You had told me earlier -- earlier in this

 247 6 deposition that the complaints that came in for the

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 117 of 145
Madison 2019-12-10 69

 247 7 hearing protection you were involved in handling, is

 247 8 that fair?

 247 9 A. Yes, I was involved in handling complaints

 247 10 on hearing protectors.

 247 11 Q. Were you chief, were you the chief person

 247 12 involved in that, did they all come to you or was

 247 13 there a pool of you?

 247 14 A. I would -- I would say I was the primary.

 247 15 Q. Handler?

 247 16 A. Yeah, person they went to first.

247:17 - 247:21 Madison 2019-12-10

 247 17 Q. It looks to me that this is a -- it is

 247 18 three pages, but it starts on the next-to-last page.

 247 19 A. Um-hum.

 247 20 Q. And it -- it's from an Eric Howard.

 247 21 Did you ever meet Mr. Howard?

Re: [247:17-247:21]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

247:24 - 248:17 Madison 2019-12-10

 247 24 Q. Howald, I'm sorry.

 247 25 A. Howald. I did not meet him. I only

 248 1 exchanged e-mails with him.

 248 2 Q. This is an e-mail sent on December -- it

 248 3 purports to be December the 10th of 2013, correct?

 248 4 A. Yes.

 248 5 Q. The subject is: "Danger of 3M Combat Arms

 248 6 Earplugs."

 248 7 A. That's the subject.

 248 8 Q. You have a message. The message says:

 248 9 "I have been mulling over contacting

 248 10 anyone about this for over a year now, whether 3M or

 248 11 that awful Army bureaucracy - I don't really know

 248 12 where to begin. The U.S. Army is the purchaser of 3M

 248 13 Combat Arms earplugs. Here is an image of one I used.

 248 14 They are distributed to new soldiers who enter Basic

 248 15 Combat Training for use during rifle qualification."

 248 16 That's on a range, correct?

 248 17 A. I don't know.

Re: [247:24-248:17]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

248:18 - 249:1 Madison 2019-12-10

 248 18 Q. You've seen movies where there is cadets

 248 19 qualifying on a range?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 118 of 145
Madison 2019-12-10 70

 248 20 A. Sir, I've never served in the military. I

 248 21 don't know.

 248 22 Q. I understand that, but do you have a

 248 23 general appreciation that they'll have a group of guys

 248 24 and girls out on the range qualifying?

 248 25 A. I don't know that it is done in groups,

 249 1 so, no, I don't know that.

249:2 - 250:6 Madison 2019-12-10

 249 2 Q. Okay. All right.

 249 3 "We were told by the cadre that" -- "that

 249 4 they are designed so that you can hear voices, but it

 249 5 still protects you from the sound. That is

 249 6 unequivocally false - these earplugs do not work.

 249 7 They are incredibly dangerous - and are a quick way to

 249 8 go deaf. I strongly urge 3M to take measures to

 249 9 rescind or improve this product as soon as possible.

 249 10 I only used them the first day of rifle qualification,

 249 11 before switching to foam plugs from then on out. Just

 249 12 from one day of using the Combat Arms earplugs, my

 249 13 good hearing has been destroyed and it has severely

 249 14 affected my quality of life. I've lost my ability to

 249 15 hear higher pitches, and struggle to hear people when

 249 16 there is any background noise of all" -- "at all

 249 17 (which is most of the time in our day-to-day lives)."

 249 18 Have I read that correctly?

 249 19 A. Yes.

 249 20 Q. "I used to hear everything in my immediate

 249 21 environment, and now I struggle to make out any voice

 249 22 at all unless it is someone" -- "unless someone is

 249 23 directly in front of me."

 249 24 Now, we've talked about earlier, and I

 249 25 don't want to repeat myself, one day of exposure of --

 250 1 of gunfire at a range without adequate protection can

 250 2 permanently damage a person's hearing, you'd agree

 250 3 with that?

 250 4 A. It's possible, depending on the weapons

 250 5 and the number of shots fired and the protection

 250 6 provided -- worn.

Re: [249:2-250:6]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 119 of 145
Madison 2019-12-10 71

250:7 - 250:10 Madison 2019-12-10

 250 7 Q. Yeah. I think this fellow shot M -- shot

 250 8 with an M16. That would be pretty standard issue for

 250 9 a foot soldier in the U.S. Army.

 250 10 Are you familiar with that?

Re: [250:7-250:10]

Def Obj Relevance (401, 402); 

Prejudice (403); compound (611, 403); 

3M MIL No. 10; Hearsay (801, 802); 

404; 3M MIL No. 10

SUSTAINED

250:12 - 250:13 Madison 2019-12-10

 250 12 BY MR. PIRTLE:

 250 13 Q. He says it here?

Re: [250:12-250:13]

Def Obj Compound (611, 403); 3M 

MIL No. 10

SUSTAINED

250:14 - 250:15 Madison 2019-12-10

 250 14 A. I've heard of an M16. I'm not familiar.

 250 15 I've never shot one.

250:16 - 250:23 Madison 2019-12-10

 250 16 Q. "I'm absolutely certain that this was

 250 17 caused by the earplugs, because the moment the first

 250 18 shot went off I knew that I had never come close to

 250 19 hearing anything remotely that loud, it was as if your

 250 20 hair was standing up on end and you instantly became

 250 21 drunk, it was the most painful experience."

 250 22 Did I read that reasonably correct?

 250 23 A. Yes.

Re: [250:16-250:23]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

250:24 - 251:4 Madison 2019-12-10

 250 24 Q. You say you've never fired an M16 or

 250 25 AR-15?

 251 1 A. No.

 251 2 Q. So you have not experienced how loud and

 251 3 high the pitch of one of those weapons is?

 251 4 A. Not one of those weapons.

251:9 - 251:15 Madison 2019-12-10

 251 9 Q. "After just a few iterations my hearing

 251 10 disappeared in half and never returned. After that

 251 11 day, I always used foam earplugs and they worked

 251 12 fine."

 251 13 That's a statement that you've made in

 251 14 some of the documents we've reviewed during this

 251 15 deposition, correct?

Re: [251:9-251:15]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

251:18 - 252:14 Madison 2019-12-10

 251 18 A. I've made a statement that foam earplugs

 251 19 are recommended in shooting situations where there are

 251 20 a large number of rounds being -- that are being shot,

Re: [251:18-252:14]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 120 of 145
Madison 2019-12-10 72

 251 21 but that's a recommendation.

 251 22 BY MR. PIRTLE:

 251 23 Q. "Additionally, many, many other soldiers

 251 24 agree with me that they suffered hearing loss from

 251 25 those earplugs, and towards the end of the few weeks

 252 1 of rifle qualification, the majority of the people had

 252 2 switched over to the foam ones."

 252 3 That's the foamies, right?

 252 4 A. Yes, he is -- he is -- I assume he is

 252 5 referring to disposable foam earplugs.

 252 6 Q. "These earplugs might be suitable for

 252 7 harmful background noise of a helicopter, gunshots

 252 8 from comrades 30 feet away, or worn under earmuffs,

 252 9 but they absolutely should not be used how they are

 252 10 currently being used in basic training by the Army.

 252 11 Thank you, Eric."

 252 12 Did I read that reasonably correct?

 252 13 A. Yes. He signed it Eric Howald.

 252 14 Q. Eric Howald.

252:15 - 253:12 Madison 2019-12-10

 252 15 And you replied?

 252 16 A. Yes.

 252 17 Q. This is on December 10th. You write back

 252 18 nine days later on the 19th.

 252 19 And it says: "Thank you for contacting 3M

 252 20 to share your concerns about the hearing protection

 252 21 provided by the Combat Arms earplugs. I commend you

 252 22 for quickly taking action to find other hearing

 252 23 protectors that were more effective for you after you

 252 24 noticed symptoms of hearing loss. As an audiologist,

 252 25 I suggest you contact the appropriate Army audiologist

 253 1 facility, if you haven't already done so, to discuss

 253 2 the need for evaluation to determine your current

 253 3 hearing status."

 253 4 You are writing him back saying you need

 253 5 to go to the Army audiologist, correct?

 253 6 A. I am responding to his complaint.

 253 7 Q. "The hearing protection provided by the

 253 8 Combat Arms is affected by numerous factors, including

Re: [252:15-253:12]

Def Obj 404; Prejudice (403); 

Relevance (401, 402); 3M MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 121 of 145
Madison 2019-12-10 73

 253 9 the condition of the earplugs, the size of the

 253 10 earplugs and the proper fitting of the earplugs in the

 253 11 earcanal. If the earplugs are damaged in some way, or

 253 12 are too small/too large, they are not" --

253:15 - 254:12 Madison 2019-12-10

 253 15 Q. -- "or they are not properly inserted into

 253 16 the earcanals, the protection provided may be

 253 17 diminished. 3M recommends that a qualified person,

 253 18 experienced in fitting hearing protectors, assist each

 253 19 soldier in the selection of the proper size (small,

 253 20 regular, or large) earplugs and provide training on

 253 21 proper fitting and use. This training also should" --

 253 22 "should also include how to store, clean and when to

 253 23 replace the earplugs. If you have any questions,

 253 24 please contact me directly. Best regards, Ted

 253 25 Madison."

 254 1 Did I read that correctly?

 254 2 A. Yes, I believe so.

 254 3 Q. And was that the one e-mail you sent him?

 254 4 A. That was the first one.

 254 5 Q. Did you send others?

 254 6 A. I -- I don't see any others in this

 254 7 document, so I -- I don't know.

 254 8 Q. Okay. Now, did you follow up to actually

 254 9 try to have a personal contact with this young man to

 254 10 investigate this complaint more thoroughly?

 254 11 A. I don't recall whether there were

 254 12 additional conversations between Mr. Howald and I.

Re: [253:15-254:12]

Def Obj 404; Prejudice (403); 

Relevance (401, 402); 3M MIL No. 10

SUSTAINED

254:13 - 254:25 Madison 2019-12-10

 254 13 Q. Well, he wrote you back?

 254 14 A. Yes, I see that on the first page.

 254 15 Q. And it says:

 254 16 "I looked at the spec sheet for these

 254 17 plugs and it said they have an NRR of 7 in the open

 254 18 position and 23 in the closed. And the open mode is

 254 19 the one supposed to be used for gunfire. It even says

 254 20 in the spec sheet that the level-dependent technology

 254 21 used in the earplug (and the earplug itself) has been

 254 22 tested on human subjects and found to be protective at

Re: [254:13-254:25]

Def Obj 404; Prejudice (403); Hearsay 

(801, 802); Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 122 of 145
Madison 2019-12-10 74

 254 23 190 dBP."

 254 24 Did I read that correctly?

 254 25 A. I believe you did.

255:1 - 255:6 Madison 2019-12-10

 255 1 Q. It looks like this young man has looked at

 255 2 at least some of the information that I had shown you

 255 3 earlier and picked up that the level-dependent yellow

 255 4 ends are supposed -- or in this case valve open end is

 255 5 supposed to be used on the range, outdoor, and he

 255 6 quotes to 190 dBP, correct?

Re: [255:1-255:6]

Def Obj Foundation (602); misstates 

(611, 403); Prejudice (403); 3M MIL 

No. 10

SUSTAINED

255:9 - 255:15 Madison 2019-12-10

 255 9 A. It looks to me like he was looking at

 255 10 specifications for Combat Arms Version 3 or later with

 255 11 an NRR of 7 and 23 in the open and closed mode

 255 12 respectively. So I don't know which version of the

 255 13 earplug he was wearing.

 255 14 And can you -- you asked a specific

 255 15 question. Can you repeat that?

Re: [255:9-255:15]

Def Obj Foundation (602); misstates 

(611, 403); Prejudice (403); 3M MIL 

No. 10

SUSTAINED

255:16 - 255:16 Madison 2019-12-10

 255 16 BY MR. PIRTLE:

255:17 - 255:20 Madison 2019-12-10

 255 17 Q. Oh, I was just saying, he got the -- the

 255 18 number 190 dBP from somewhere and it looks like it's

 255 19 the spec sheet from what he says?

 255 20 A. Yes, for Version 3 or 4 possibly.

Re: [255:17-255:20]

Def Obj Relevance (401, 402); 404; 

Prejudice (403); hearsay (801, 802); 

foundation (602); misstates (611, 403); 

3M MIL No. 10

SUSTAINED

255:25 - 256:14 Madison 2019-12-10

 255 25 "This is the loosest use of 'protective' I

 256 1 think I have ever heard in my life. Whenever you have

 256 2 an M16 which is somewhere around 160 to 170 decibels,

 256 3 that's plain bullcrap. I know the technical corporate

 256 4 response is" -- "the typical corporate response is to

 256 5 mention the numerous factors that could go wrong, such

 256 6 as condition, size... To clarify, I was given brand

 256 7 new/undamaged Combat Arms earplugs that I used for the

 256 8 first time, I was fitted by a specialist for the

 256 9 proper size, and I assure you I placed them in

 256 10 properly in the ear canal. To be frank, I doubt

 256 11 you've used these earplugs as the sole protection at a

 256 12 range, and I doubt you ever will after my e-mail."

Re: [255:25-256:14]

Def Obj Relevance (401, 402); hearsay 

(801, 802); Prejudice (403); 404; 3M 

MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 123 of 145
Madison 2019-12-10 75

 256 13 Have you?

 256 14 A. Have I what?

256:15 - 257:2 Madison 2019-12-10

 256 15 Q. Ever used these earplugs?

 256 16 A. Yes.

 256 17 Q. At a range?

 256 18 A. Yes.

 256 19 Q. Open position?

 256 20 A. Yes, uh-huh.

 256 21 Q. And what were you shooting?

 256 22 A. A handgun.

 256 23 Q. Do you remember what caliber?

 256 24 A. I'm afraid I don't. I don't know much

 256 25 about guns. It was a -- it was a demonstration.

 257 1 Q. Was it a big 'un or a little 'un?

 257 2 A. I don't know.

257:3 - 257:16 Madison 2019-12-10

 257 3 Q. "As a user of this product, I can assure

 257 4 you that the factor that affects the hearing

 257 5 protection is primarily that it's a terrible product,

 257 6 either 3M knows how poorly these work and use the

 257 7 principal of hearing protection incredibly loosely, or

 257 8 there is a huge blunder in researching the efficacy of

 257 9 the product" -- "of this product. I invite you to

 257 10 conduct personal interviews of soldiers leave basic

 257 11 training at Fort Jackson and ask them the opinion of

 257 12 your earplugs. I can virtually guarantee the majority

 257 13 of the responses that you would receive, there is no

 257 14 way all of them are affected by the factors you

 257 15 mentioned for reasons they might not work. Obviously,

 257 16 as a corporation, I don't expect 3M to ever admit it."

Re: [257:3-257:16]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

257:19 - 257:19 Madison 2019-12-10

 257 19 Q. "Admit that."

257:24 - 258:13 Madison 2019-12-10

 257 24 Q. "But if 3M cares anything about health and

 257 25 quality of life of people that use its products, they

 258 1 will work behind the scenes to do more research as

 258 2 soon as possible and look at rescinding or improving

 258 3 this item. It's just a recommendation that I hope you

Re: [257:24-258:13]

Def Obj Hearsay (801, 802); Prejudice 

(403); 404; Relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 124 of 145
Madison 2019-12-10 76

 258 4 take seriously. If you can't say that you would

 258 5 honestly use it the product of the company you work

 258 6 for, I think you have a moral obligation to try to do

 258 7 something about it. And if you do use the product

 258 8 with a high powered rifle, I hope you don't because I

 258 9 care, I'm sure you'll agree with me that this product

 258 10 is terrible. I don't require a response for this

 258 11 e-mail. Respectfully, Eric."

 258 12 Did I read that reasonably correct?

 258 13 A. Yes, you did.

258:14 - 258:17 Madison 2019-12-10

 258 14 Q. And you've done a demonstration with some

 258 15 type of handgun, but you've never fired a live M16

 258 16 with this plug?

 258 17 A. No, that's correct.

258:18 - 259:14 Madison 2019-12-10

 258 18 Q. What did you do with the complaint?

 258 19 A. The complaint, because it was an alleged

 258 20 health allegation, we implemented our process for

 258 21 responding and documenting this type of complaint. So

 258 22 we -- we met with our product responsibility liaison,

 258 23 these are the people who are responsible for any

 258 24 alleged health out -- negative health outcomes as well

 258 25 as our business team and our laboratory to assess the

 259 1 proper response.

 259 2 Q. And what was the proper response?

 259 3 A. There were several, several responses.

 259 4 First thing we a -- we all agreed we needed to notify

 259 5 the U.S. Army about the complaint and so we did so.

 259 6 Secondly, we discussed whether additional

 259 7 warnings and cautions and user information should be

 259 8 added to our products, the Combat Arms earplugs, to

 259 9 help people understand the risks of impulse noise and

 259 10 how to select which mode the earplugs should be worn

 259 11 in for the type of exposure, whether the open mode

 259 12 with level dependent attenuation was appropriate or

 259 13 whether the closed mode for continuous noise

 259 14 applications would be more appropriate.

Re: [258:18-259:14]

Def Obj 404; Prejudice (403); 

Relevance (401, 402); 3M MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 125 of 145
Madison 2019-12-10 77

259:22 - 260:13 Madison 2019-12-10

 259 22 Q. You said you notified the Army. Did you

 259 23 come up with a -- did you tell the Army to tell these

 259 24 kids to quit shooting this -- these guns with these

 259 25 earplugs in the open position?

 260 1 A. No, the letter to the Army did not say

 260 2 that.

 260 3 Q. Did anything to the Army tell the Army or

 260 4 any branch of the military to tell their soldiers,

 260 5 their recruits to stop shooting -- or stop using the

 260 6 open position when they are utilizing a gun?

 260 7 A. I don't recall the specific details of the

 260 8 letter to the Army.

 260 9 Q. I hadn't seen it.

 260 10 A. That doesn't sound familiar that -- what

 260 11 you just described.

 260 12 Q. Have you seen that letter?

 260 13 A. No, not since -- since that time.

Re: [259:22-260:13]

Def Obj 404; Prejudice (403); 

Relevance (401, 402); 3M MIL No. 10

SUSTAINED

262:14 - 263:2 Madison 2019-12-10

 262 14 Q. Did 3M do any additional testing -- heck,

 262 15 did it do any additional testing as far as to see if

 262 16 these things work on any of the Combat Arms earplugs,

 262 17 Version 2, 3 or 4, after this letter?

 262 18 MR. FIELDS: Objection; foundation.

 262 19 BY THE WITNESS:

 262 20 A. I don't know the -- what testing was done

 262 21 in 2013 at this time or -- or after this complaint.

 262 22 BY MR. PIRTLE:

 262 23 Q. Well, let me ask --

 262 24 A. I wasn't involved in laboratory testing.

 262 25 Q. Let me ask it this way: Do you know of

 263 1 any testing that was done?

 263 2 A. Nothing that I recall.

263:3 - 263:11 Madison 2019-12-10

 263 3 Q. And do you know of any written warnings

 263 4 that were sent?

 263 5 A. In response to this complaint, our

 263 6 technical team wrote a new caution statement that

 263 7 would be added to our packaging later, as well as to

Re: [263:3-263:11]

Def Obj 404; Prejudice (403); relevance 

(401, 402); 3M MIL No. 10

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 126 of 145
Madison 2019-12-10 78

 263 8 advertisements and brochures explaining in more detail

 263 9 the hazards associated with impulse noise and the

 263 10 decisions that users should make to determine which

 263 11 type of protection is appropriate.

266:14 - 266:19 Madison 2019-12-10

 266 14 Q. That you added the -- you added a warning

 266 15 sometime afterwards?

 266 16 A. This -- this text highlighted on the

 266 17 right-hand side is the impulse noise caution statement

 266 18 that was written, developed after the complaint from

 266 19 Mr. Howald.

Re: [266:14-266:19]

Def Obj 404; Prejudice (403); relevance 

(401, 402); 3M MIL No. 10

SUSTAINED

267:1 - 267:4 Madison 2019-12-10

 267 1 Q. It never made it into the Version 2

 267 2 labeling, did it?

 267 3 A. I don't believe so. I believe that

 267 4 product had been discontinued.

Re: [267:1-267:4]

Def Obj 404; Prejudice (403); relevance 

(401, 402); 3M MIL No. 10; 3M MIL 

No. 16

SUSTAINED

268:25 - 269:4 Madison 2019-12-10

 268 25 Q. I guess I can ask you generally is there

 269 1 anything limiting 3M during the time 3M was

 269 2 manufacturing these products from strengthening its

 269 3 warnings or instructions?

 269 4 A. I am not aware of any limitations.

Re: [268:25-269:4]

Def Obj Foundation (602)

SUSTAINED

269:25 - 270:5 Madison 2019-12-10

 269 25 Q. Well, if it's discontinued in '15, by '16

 270 1 you are pretty well -- oh, I'm sorry -- you would

 270 2 pretty well be able to reason that there is still some

 270 3 inventory with the U.S. Army?

 270 4 A. I don't know what the U.S. Army did with

 270 5 their inventory after this discontinuation.

Re: [269:25-270:5]

Def Obj Foundation (602); 3M MIL 

No. 16

SUSTAINED

270:8 - 270:10 Madison 2019-12-10

 270 8 Q. This is not a recall, you all just stopped

 270 9 making it, right?

 270 10 A. That's correct, it's not a recall.

Re: [270:8-270:10]

Def Obj 3M MIL No. 16

SUSTAINED

273:15 - 274:13 Madison 2019-12-10

 273 15 BY MR. PIRTLE:

 273 16 Q. Let me show you Exhibit 28.

 273 17 Do you recognize Exhibit 28?

 273 18 A. Yes.

 273 19 Q. When is the last time you saw it?

Re: [273:15-274:13]

Def Obj 404; Prejudice (403); Hearsay 

(801, 802); relevance (401, 402); 3M 

MIL No. 10

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 127 of 145
Madison 2019-12-10 79

 273 20 A. At the time it was written, I believe.

 273 21 Q. This is another complaint?

 273 22 A. It is a complaint, yes, and my response to

 273 23 the complaint.

 273 24 Q. This is Howard Elmer. It looks like he is

 273 25 from Marietta, Georgia, writing you.

 274 1 "I inserted the olive end into my ears, as

 274 2 recommended on the back of the package, thought it had

 274 3 seated, entered the shooting range and set up and

 274 4 began firing. "

 274 5 A. "Thought it had seated well, entered the

 274 6 shooting range."

 274 7 Q. Yep.

 274 8 A. "And set up and began firing."

 274 9 Q. "At some point I felt a sharp piercing

 274 10 pain/noise in my left ear. Both ears had some

 274 11 ringing, which subsided, by my left ear feels like

 274 12 there is a buzzing/vibrating feeling when I speak

 274 13 now."

274:14 - 274:19 Madison 2019-12-10

 274 14 You are an audiologist, what type of

 274 15 symptom is that indicative of or what type of an

 274 16 injury is that symptom indicative of?

 274 17 A. A buzzing and vibrating feeling could be a

 274 18 tinnitus, a type of tinnitus. I -- I don't know what

 274 19 he was referring to, but...

274:20 - 274:24 Madison 2019-12-10

 274 20 Q. "It" -- "It has been about two weeks since

 274 21 this occurred with only slight improvement in my left

 274 22 ear. Loud noises are bothersome to my left ear."

 274 23 Did I read that reasonably correct?

 274 24 A. I believe so.

Re: [274:20-274:24]

Def Obj 404; Prejudice (403); Hearsay 

(801, 802); relevance (401, 402); 3M 

MIL No. 10

OVERRULED

274:25 - 275:5 Madison 2019-12-10

 274 25 Q. And you had mentioned loud noises in some

 275 1 cases being bothersome with exposure, when exposed to

 275 2 sound, but I think you said, in fairness, over periods

 275 3 of time.

 275 4 But it can happen in one sitting, can't

 275 5 it?

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 128 of 145
Madison 2019-12-10 80

275:7 - 275:10 Madison 2019-12-10

 275 7 BY THE WITNESS:

 275 8 A. Damage to the ear can happen from one

 275 9 exposure or more.

 275 10 BY MR. PIRTLE:

275:12 - 275:12 Madison 2019-12-10

 275 12 A. Yeah.

289:6 - 289:9 Madison 2019-12-10

 289 6 Q. And Exhibit 32 appears to be an e-mail

 289 7 chain that you are involved with, and go ahead and

 289 8 scan over it.

 289 9 A. Okay.

Re: [289:6-289:9]

Def Obj Relevance (401, 402); no 

testimony designated regarding the 

exhibit (403)

SUSTAINED

303:10 - 303:15 Madison 2019-12-10

 303 10 A. Yes, I will.

 303 11 Q. All right. Before you is Exhibit 22,

 303 12 Mr. Pirtle asked you a few questions about this

 303 13 exhibit.

 303 14 Do you recall that?

 303 15 A. Yes.

Re: [303:10-303:15]

Def Obj 404; Prejudice (403); Hearsay 

(801, 802); relevance (401, 402); 3M 

MIL No. 10

SUSTAINED

304:2 - 304:5 Madison 2019-12-10

 304 2 Q. Okay. And what's the date of this

 304 3 complaint here?

 304 4 A. 12 -- well, the complaint original was

 304 5 December, it appears to be December 10, 2013.

Re: [304:2-304:5]

Def Obj 404; Prejudice (403); Hearsay 

(801, 802); relevance (401, 402); 3M 

MIL No. 10

OVERRULED

307:20 - 308:4 Madison 2019-12-10

 307 20 Q. Correct. All right.

 307 21 Now, let me ask you this: Turn back to

 307 22 Exhibit 21, the Johnson Blast study, if you would.

 307 23 A. Okay.

 307 24 Q. And I think you -- you've already

 307 25 testified that, in fact, this was the basis for the

 308 1 190 dBP statement in the brochure that -- that the

 308 2 young man was -- one of the things he was complaining

 308 3 about in Exhibit 22, correct?

 308 4 A. This was --

Re: [307:20-308:4]

Def Obj Foundation (602)

DEFER RULING

308:6 - 308:7 Madison 2019-12-10

 308 6 BY THE WITNESS:

 308 7 A. This was the basis for that claim.

Re: [308:6-308:7]

Def Obj Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 129 of 145
Madison 2019-12-10 81

308:8 - 308:8 Madison 2019-12-10

 308 8 BY MR. AYLSTOCK:

308:9 - 308:17 Madison 2019-12-10

 308 9 Q. Okay. So, and if we look at the

 308 10 conclusions here, if we go to Page 146, we've already

 308 11 established that -- that the authors of this, in fact,

 308 12 have determined that, one, we cannot recommend plugs

 308 13 of -- for -- of this type -- I'm sorry. Strike that.

 308 14 The authors of this Johnson Blast study

 308 15 state: "Because we have no data with respect to

 308 16 plugs, we cannot recommend plugs for this type of

 308 17 reverberant exposure."

Re: [308:9-308:17]

Def Obj Foundation (602)

OVERRULED

308:25 - 308:25 Madison 2019-12-10

 308 25 A. Yes, that's -- you read it correctly.

Re: [308:25-308:25]

Def Obj Foundation (602)

OVERRULED

309:4 - 309:10 Madison 2019-12-10

 309 4 They also say at the very bottom: "We

 309 5 cannot recommend general use of the two nonlinear

 309 6 plugs we tested. It is possible that the French No. 1

 309 7 Plug," talking about this -- the earlier generation of

 309 8 the Combat Arms, "modified to put the filter in the

 309 9 stem might be acceptable but more testing is needed."

 309 10 That's what they say, right?

Re: [309:4-309:10]

Def Obj Foundation (602)

OVERRULED

309:12 - 309:15 Madison 2019-12-10

 309 12 BY THE WITNESS:

 309 13 A. Yeah, the filter -- the filter in the stem

 309 14 instead of the front.

 309 15 BY MR. AYLSTOCK:

Re: [309:12-309:15]

Def Obj Foundation (602)

OVERRULED

309:16 - 309:20 Madison 2019-12-10

 309 16 Q. In other words, what they are saying is,

 309 17 in -- if you are going to use this up to and under

 309 18 these conditions on the Johnson Blast study, more

 309 19 testing is needed before you make representations

 309 20 about it, correct?

Re: [309:16-309:20]

Def Obj Foundation (602); misstates 

(611, 403)

OVERRULED

309:22 - 309:25 Madison 2019-12-10

 309 22 BY MR. AYLSTOCK:

 309 23 Q. That's fair?

 309 24 A. Yes, they are -- they are recommending

 309 25 more testing.

Re: [309:22-309:25]

Def Obj Foundation (602); misstates 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 130 of 145
Madison 2019-12-10 82

309:26 - 310:1 Madison 2019-12-10

 310 1 Q. And -- and you are unaware of any

310:1 - 310:6 Madison 2019-12-10

 310 1 Q. And -- and you are unaware of any

 310 2 additional testing?

 310 3 A. Yes.

 310 4 Q. And I think we've already -- you've

 310 5 already said that?

 310 6 A. I am unaware of that.

Re: [310:1-310:6]

Def Obj Foundation (602)

OVERRULED

310:23 - 311:13 Madison 2019-12-10

 310 23 We've already established that this

 310 24 Johnson Blast study is the basis for the marketing

 310 25 representations of 190 dBP?

 311 1 A. That's correct.

 311 2 Q. For the Combat Arms Version 2, and 3 and 4

 311 3 for that matter, correct?

 311 4 A. I believe that's what was cited.

 311 5 Q. And you are unaware of any additional

 311 6 testing at these levels to support that

 311 7 recommendation?

 311 8 A. When you say "these levels," do you mean

 311 9 190?

 311 10 Q. Yes.

 311 11 A. Yes.

 311 12 Q. Okay.

 311 13 A. I am not aware of any other testing.

Re: [310:23-311:13]

Def Obj Foundation (602); asked (611, 

403)

OVERRULED

311:14 - 311:19 Madison 2019-12-10

 311 14 Q. So my -- so my point is nothing changed in

 311 15 the scientific literature or your scientific knowledge

 311 16 from the -- this Johnson Blast study all of the way up

 311 17 until the time from Exhibit 25 when you are drafting

 311 18 this additional language, correct?

 311 19 A. Yes, I wasn't aware of any other studies.

Re: [311:14-311:19]

Def Obj Foundation (602)

OVERRULED

311:20 - 311:25 Madison 2019-12-10

 311 20 Q. And so, therefore, it is your testimony,

 311 21 is it not, that based upon those facts it would have

 311 22 been perfectly reasonable for 3M, or Aearo before 3M

 311 23 acquired Aearo, to have included statement -- the

Re: [311:20-311:25]

Def Obj Foundation (602); Misstates; 

vague (611, 403); Calls for legal 

conclusion (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 131 of 145
Madison 2019-12-10 83

 311 24 statement that you ended up adding to the marketing

 311 25 material in 2016, correct?

312:3 - 312:8 Madison 2019-12-10

 312 3 A. Is the question whether it would be

 312 4 reasonable to include such a statement?

 312 5 BY MR. AYLSTOCK:

 312 6 Q. Sure, because nothing changed?

 312 7 A. I believe it is a reasonable thing to

 312 8 include a statement like that.

Re: [312:3-312:8]

Def Obj Foundation (602); Misstates; 

vague (611, 403); calls for legal 

conclusion (403)

OVERRULED

312:9 - 312:14 Madison 2019-12-10

 312 9 Q. And it would have been reasonable all of

 312 10 the way back certainly when 3M acquired Aearo and even

 312 11 before because you've just established nothing

 312 12 changed, correct?

 312 13 A. Again, you are asking about what is

 312 14 reasonable. It seems reasonable to me.

Re: [312:9-312:14]

Def Obj Calls for legal conclusion 

(403); Foundation (602)

OVERRULED

313:1 - 314:8 Madison 2019-12-10

 313 1 (WHEREUPON, a certain document was

 313 2 marked Ted Madison Deposition Exhibit

 313 3 No. 34, for identification, as of

 313 4 12/10/2019.)

 313 5 BY MR. AYLSTOCK:

 313 6 Q. And I think we established from an

 313 7 earlier -- an earlier document in your testimony,

 313 8 you're involved in helping create materials for

 313 9 hearing protection training for 3M personnel, correct?

 313 10 A. I was, yes.

 313 11 Q. Now, do you recognize this document?

 313 12 A. Yes, I do.

 313 13 Q. And if we turn to the -- the very first

 313 14 page, it looks like Elliot Berger was involved in the

 313 15 drafting of this document, it looks like you were also

 313 16 involved in the drafting of this document, fair?

 313 17 A. These comments indicate that Elliot Berger

 313 18 and I commented on the document. I don't know about

 313 19 the drafting. That's not clear from this.

 313 20 Q. Okay. Well, in other words, you were

 313 21 involved in making sure that the -- that the

 313 22 statements in this document were accurate because it's

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 132 of 145
Madison 2019-12-10 84

 313 23 important when you are training people to sell hearing

 313 24 protection that they have accurate information about

 313 25 3M products as well as hearing protection generally,

 314 1 fair?

 314 2 A. Yes, we were asked to review the technical

 314 3 accuracy of this document.

 314 4 Q. Okay. And you did so?

 314 5 A. Yes.

 314 6 Q. And it's important to be accurate, is it

 314 7 not?

 314 8 A. It is.

315:15 - 315:18 Madison 2019-12-10

 315 15 (WHEREUPON, a certain document was

 315 16 marked Ted Madison Deposition Exhibit

 315 17 No. 35, for identification, as of

 315 18 12/10/2019.)

316:2 - 316:8 Madison 2019-12-10

 316 2 Q. -- it was -- it is relatively recent. You

 316 3 recall it as being relatively recently created

 316 4 document?

 316 5 A. Yes.

 316 6 Q. In fact, I think what we have is 2018.

 316 7 Does that sound about right to you?

 316 8 A. That sounds about right.

316:20 - 317:1 Madison 2019-12-10

 316 20 Q. And it's important -- and it is a training

 316 21 document on hearing protection?

 316 22 A. Yes, it is.

 316 23 Q. And it's important for the training to be

 316 24 100 percent accurate, correct?

 316 25 A. As accurate as possible.

 317 1 Q. Because if sales reps, if marketers get

317:1 - 317:4 Madison 2019-12-10

 317 1 Q. Because if sales reps, if marketers get

 317 2 bad information about the product, they are likely to

 317 3 pass it along when they are trying to do their job

 317 4 selling and marketing the product, fair enough?

Re: [317:1-317:4]

Def Obj Foundation (602); Vague (611, 

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 133 of 145
Madison 2019-12-10 85

317:6 - 317:7 Madison 2019-12-10

 317 6 BY THE WITNESS:

 317 7 A. Yes, we take accuracy very seriously.

Re: [317:6-317:7]

Def Obj Foundation (602); Vague (611, 

403)

OVERRULED

317:22 - 318:16 Madison 2019-12-10

 317 22 Q. And I'm going to -- there is a comment in

 317 23 green here. It looks like it says: "Did you know

 317 24 that noise-induced hearing loss is 100 percent

 317 25 preventable?"

 318 1 You see that, right?

 318 2 A. Okay. Yes, I do.

 318 3 Q. And you agree with that, right?

 318 4 A. I think that's an overstatement.

 318 5 Q. Well, did you -- you commented on this,

 318 6 right?

 318 7 A. Yes, I'm not clear which comments are

 318 8 mine, there are some red, some blue, some green.

 318 9 Q. Well, if we go back to the first page, the

 318 10 green are actually approved statements per Elliot

 318 11 Berger, do you see that on Page 1? Green means

 318 12 approved by Elliot Berger?

 318 13 A. Okay. All right.

 318 14 Q. So and this statement I just read is in

 318 15 green, is it not?

 318 16 A. It is.

318:17 - 318:19 Madison 2019-12-10

 318 17 Q. All right. So you disagree with Elliot

 318 18 Berger?

 318 19 A. Yes, I do.

319:11 - 320:18 Madison 2019-12-10

 319 11 Q. Well, let's go onto the -- the next green

 319 12 statement under it. It says: "While it is not always

 319 13 immediate, noise-induced hearing loss can have a very

 319 14 profound impact on someone's life."

 319 15 You -- you see that, right?

 319 16 A. Yes, I see that.

 319 17 Q. And is this something you agree with or

 319 18 another thing that you don't agree with?

 319 19 A. I agree.

 319 20 Q. Okay. You do agree with this?

Re: [319:11-320:18]

Def Obj 701; 702

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 134 of 145
Madison 2019-12-10 86

 319 21 A. I do.

 319 22 Q. All right. And it says: "Including

 319 23 stress, fatigue, tension, irritability, anger,

 319 24 negativity, depression, withdrawal, and even high

 319 25 blood pressure."

 320 1 You agree with all of that too, right?

 320 2 A. Yes, those things are all associated with

 320 3 hearing loss.

 320 4 Q. Yeah. And, in fact, you're -- you're not

 320 5 only an audiologist, you are a practicing audiologist,

 320 6 you are a clinician you testified earlier, right?

 320 7 A. I consider myself a clinician. I don't

 320 8 see patients.

 320 9 Q. Okay. There was a time you saw patients?

 320 10 A. Yes.

 320 11 Q. And from those patients you saw and in

 320 12 your experience, you know what this -- that this is,

 320 13 in fact, true?

 320 14 A. Yes, I do.

 320 15 Q. Noise-induced hearing loss leads to all of

 320 16 those things, right?

 320 17 A. It's a -- it's highly correlated with

 320 18 those things.

323:5 - 323:21 Madison 2019-12-10

 323 5 Q. Well, but you don't dispute that when they

 323 6 do die they are -- they are not going to regenerate,

 323 7 it is not like other parts of the body, if you get a

 323 8 cut on your skin, when these cells die, they are dead?

 323 9 A. When hair cells die, there is no

 323 10 indication that they regrow.

 323 11 Q. And there is no treatment for that?

 323 12 A. None today.

 323 13 Q. All right. Now, down below there is

 323 14 another sentence that says: "Want to make hearing

 323 15 loss more impactful to your customer?"

 323 16 Right?

 323 17 A. I see that.

 323 18 Q. And: "Explain to them that the first

 323 19 person that they will not be able to hear is likely

Re: [323:5-323:21]

Def Obj 701; 702

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 135 of 145
Madison 2019-12-10 87

 323 20 their children or grandchildren."

 323 21 You know that's true, right?

323:24 - 324:3 Madison 2019-12-10

 323 24 Q. I mean, this is one of their approved

 323 25 statements?

 324 1 A. No, I don't -- I don't believe it's true.

 324 2 Q. You don't believe this is true either?

 324 3 A. No.

Re: [323:24-324:3]

Def Obj 701; 702

OVERRULED

324:4 - 324:9 Madison 2019-12-10

 324 4 Q. Okay. And so who -- who do you think

 324 5 these people, these soldiers and servicemen and women

 324 6 who have experienced noise-induced hearing loss, who

 324 7 are they first likely not to hear, maybe not their

 324 8 children or grandchildren because maybe they are

 324 9 not -- they are overseas with their buddies?

Re: [324:4-324:9]

Def Obj Foundation (602); misstates,

argumentative (611, 403); 701; 702; 

Prejudice (403)

SUSTAINED

324:11 - 324:15 Madison 2019-12-10

 324 11 BY THE WITNESS:

 324 12 A. I -- I don't think it would be -- I

 324 13 wouldn't limit it to children and grandchildren.

 324 14 That -- that hearing loss can affect ability to hear

 324 15 all kinds of people of all ages, yeah.

Re: [324:11-324:15]

Def Obj Foundation (602); misstates, 

argumentative (611, 403); 701; 702; 

Prejudice (403)

SUSTAINED

324:16 - 324:16 Madison 2019-12-10

 324 16 BY MR. AYLSTOCK:

324:17 - 325:10 Madison 2019-12-10

 324 17 Q. Okay. All right.

 324 18 And it does say this is because children

 324 19 have higher frequency voices and the hair cells that

 324 20 detect high frequencies are impacted first.

 324 21 Do you agree or disagree with that?

 324 22 A. I agree that -- that hair -- that hair

 324 23 cells that are affected most by noise initially are

 324 24 the high frequency, the hair cells that are --

 324 25 correspond to the high frequencies, and it is true

 325 1 that children have high frequency voices.

 325 2 Q. Okay. Fair enough.

 325 3 You agree that losing the ability to

 325 4 communicate can lead to significant frustration,

 325 5 that's fair, right?

 325 6 A. I agree with that.

Re: [324:17-325:10]

Def Obj 701; 702

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 136 of 145
Madison 2019-12-10 88

 325 7 Q. And then there is a quote in here in

 325 8 green, so this is approved, a Helen Keller quote.

 325 9 Do you see that?

 325 10 A. Yes.

325:13 - 325:20 Madison 2019-12-10

 325 13 Q. Can you read that, Helen Keller's quote

 325 14 for the jury?

 325 15 A. "Helen Keller once said: 'Blindness cuts

 325 16 us off from things, but deafness cuts us off from

 325 17 people.'"

 325 18 Q. That's true, isn't it?

 325 19 A. That's a perception that she had and many

 325 20 people have, yes.

Re: [325:13-325:20]

Def Obj 701; 702; Relevance (401, 

402)

OVERRULED

326:8 - 326:17 Madison 2019-12-10

 326 8 Q. Well, you don't disagree with -- with the

 326 9 statement, do you?

 326 10 A. I believe that's how many people feel.

 326 11 Q. Yeah.

 326 12 A. That it cuts them off from other people.

 326 13 Q. And that's a -- a very serious thing when

 326 14 it comes to noise-induced hearing loss, correct,

 326 15 feelings of kind of being cutoff, in isolation?

 326 16 A. Yes, I believe people with hearing loss

 326 17 find that to be very troubling.

Re: [326:8-326:17]

Def Obj 701; 702; Relevance (401, 

402)

OVERRULED

327:17 - 328:10 Madison 2019-12-10

 327 17 Q. And: "Protect is the use of hearing

 327 18 protection devices to reduce the noise exposure of

 327 19 workers. Hearing protection must be comfortable, fit

 327 20 properly, and provide adequate protection for the

 327 21 environment."

 327 22 Do you see that?

 327 23 A. Yes.

 327 24 Q. And you -- do you agree or disagree with

 327 25 this one?

 328 1 A. I agree.

 328 2 Q. Okay. So you understand the importance of

 328 3 fit when it comes to earplugs?

 328 4 A. I do.

 328 5 Q. And it is important to get the right fit

Re: [327:17-328:10]

Def Obj 701; 702

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 137 of 145
Madison 2019-12-10 89

 328 6 for the earplugs?

 328 7 A. It is important.

 328 8 Q. And it's important as well for the

 328 9 earplugs to adequately protect for the environment,

 328 10 correct?

328:12 - 328:16 Madison 2019-12-10

 328 12 BY THE WITNESS:

 328 13 A. Yes, it is important for them to

 328 14 adequately protect for the noise and the environment

 328 15 and the work that's being done.

 328 16 BY MR. AYLSTOCK:

Re: [328:12-328:16]

Def Obj 701; 702

OVERRULED

328:25 - 329:9 Madison 2019-12-10

 328 25 It's important for a company when it's

 329 1 making representations about the protection of its

 329 2 earplugs to be accurate in telling the men and women

 329 3 who may be using those earplugs, especially those who

 329 4 are in service of this country, what kind of

 329 5 protection it's going to provide and in what

 329 6 circumstances, fair?

 329 7 A. I agree that it's important for the

 329 8 manufacturer to provide accurate information to all

 329 9 users, yes.

Re: [328:25-329:9]

Def Obj 701; 702

SUSTAINED as to “especially those 

who are in service of this country”

OVERRULED in all other respects

329:10 - 329:10 Madison 2019-12-10

 329 10 Q. Especially those men and women in uniform?

Re: [329:10-329:10]

Def Obj Asked (611, 403); 701; 702

SUSTAINED

329:12 - 329:14 Madison 2019-12-10

 329 12 BY THE WITNESS:

 329 13 A. Certainly, certainly men and women in

 329 14 uniform are part of that group. It is very important.

Re: [329:12-329:14]

Def Obj Asked (611, 403); 701; 702

SUSTAINED

329:16 - 330:15 Madison 2019-12-10

 329 16 Q. Well, and let me ask you a little -- let

 329 17 me go to Exhibit 10, if you would. And I really want

 329 18 to talk about this fit properly, but let me go back to

 329 19 Exhibit 10 if you could pull that from your pile.

 329 20 A. Okay. Give me a moment.

 329 21 Okay. I have it.

 329 22 Q. Mr. Pirtle asked you a few questions about

 329 23 this. It is the revised testing protocol from CAE

 329 24 Version 4.

 329 25 Do you remember this?

Re: [329:16-330:15]

Def Obj Foundation (602) relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 138 of 145
Madison 2019-12-10 90

 330 1 A. CAE Version 4, yes, I --

 330 2 Q. And it says Fitting Tip there. You are

 330 3 familiar, are you not, Mr. Madison, with the concept

 330 4 of what a fitting tip is?

 330 5 A. Yes.

 330 6 Q. In fact, I've seen other products that you

 330 7 are involved with that have a fitting tip, fair?

 330 8 A. Yes.

 330 9 Q. And you would agree with me that in -- in

 330 10 various instructions for earplugs there is: Here is

 330 11 what you must do and then here is what you can do to

 330 12 get a better fit, fair?

 330 13 A. Yes.

 330 14 Q. And that's really -- the fitting tip is

 330 15 about comfort, fair enough?

330:17 - 331:11 Madison 2019-12-10

 330 17 BY THE WITNESS:

 330 18 A. I -- I wouldn't limit it to comfort.

 330 19 BY MR. AYLSTOCK:

 330 20 Q. But that's -- it's not a requirement, it's

 330 21 a tip for how to make sure you get the best fit, or it

 330 22 doesn't -- it's not something -- in other words, it's

 330 23 not something that everybody has to do every time, it

 330 24 is just something a tip for them -- for proper -- to

 330 25 get -- to get the best fit, fair?

 331 1 A. I agree that it's not some -- that it is

 331 2 not a representation of something that everyone needs

 331 3 to do every time. It is guidance on how to improve

 331 4 the fit if you are having difficulty getting a good

 331 5 fit.

 331 6 Q. Right. It is guidance if you can't get a

 331 7 good fit --

 331 8 A. Yeah.

 331 9 Q. -- or you don't think you have a good fit,

 331 10 here is something that might help, right?

 331 11 A. Yes, that's correct.

Re: [330:17-331:11]

Def Obj Foundation (602) relevance 

(401, 402); Prejudice (403)

OVERRULED

337:22 - 338:2 Madison 2019-12-10

 337 22 Exhibit 35.

 337 23 A. Okay.

Re: [337:22-338:2]

Def Obj Foundation (602); relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 139 of 145
Madison 2019-12-10 91

 337 24 Q. Now, this is an e-mail from Doug Moses to

 337 25 Erin Tucker, it looks like at U.S. Marine Corps.

 338 1 Do you see that?

 338 2 A. Yes.

343:23 - 343:25 Madison 2019-12-10

 343 23 Q. Okay. And what it says here below that

 343 24 is: "One-Size-Fits-All Approach," right?

 343 25 A. That's what it says.

Re: [343:23-343:25]

Def Obj Foundation (602)

OVERRULED

344:1 - 344:2 Madison 2019-12-10

 344 1 Q. That's not a good approach, is it, we just

 344 2 established that in the prior document?

Re: [344:1-344:2]

Def Obj Foundation 602; misstates 

(611, 403)

OVERRULED

344:4 - 344:7 Madison 2019-12-10

 344 4 BY MR. AYLSTOCK:

 344 5 Q. Didn't we?

 344 6 A. Yes, that's not an approach that I have

 344 7 advocated for in my teaching.

Re: [344:4-344:7]

Def Obj Foundation 602; misstates 

(611, 403)

OVERRULED

344:8 - 344:12 Madison 2019-12-10

 344 8 Q. Did Mr. Moses run this by you before he

 344 9 presented it to the U.S. -- somebody at the

 344 10 U.S. Marine Corps and the U.S. Army to market these

 344 11 Combat Arms earplugs?

 344 12 A. No.

344:13 - 344:14 Madison 2019-12-10

 344 13 Q. Had he, would you have said, Mr. Moses,

 344 14 this is wrong, you need to change this?

Re: [344:13-344:14]

Def Obj Foundation (602); 701

OVERRULED

344:16 - 344:19 Madison 2019-12-10

 344 16 BY THE WITNESS:

 344 17 A. I would have had a conversation with him

 344 18 to understand what he was trying to say and how best

 344 19 to say it.

Re: [344:16-344:19]

Def Obj Foundation (602); 701

OVERRULED

344:20 - 344:25 Madison 2019-12-10

 344 20 BY MR. AYLSTOCK:

 344 21 Q. Well, in that -- at the end of that

 344 22 conversation, then, I take it you would have said,

 344 23 Don't say it this way, fair enough?

 344 24 A. I certainly would have argued for my point

 344 25 of view, yes.

Re: [344:20-344:25]

Def Obj Foundation (602); 701

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 140 of 145
Madison 2019-12-10 92

346:7 - 346:9 Madison 2019-12-10

 346 7 the employer and the manufacturer, yes, but what I'm

 346 8 trying to hone in on is the manufacturer of the

 346 9 earplug, in this case 3M, is the one that's making the

Re: [346:7-346:9]

Def Obj Attorney colloquy (401, 402, 

403)

OVERRULED

346:10 - 347:3 Madison 2019-12-10

 346 10 money on the earplug, fair?

 346 11 A. Yes, I -- yes.

 346 12 Q. They are the one out there making

 346 13 marketing claims to sell the earplug, right?

 346 14 A. The manufacturer makes the marketing

 346 15 claims, yes.

 346 16 Q. The manufacturer in this case tested the

 346 17 earplug and came up with the claims in the -- in the

 346 18 marketing from its testing, right?

 346 19 A. Yes.

 346 20 Q. And what I'm trying to see if you'll agree

 346 21 with me on is that, as such, the manufacturer bears

 346 22 the ultimate responsibility to make sure that whatever

 346 23 it's telling the people that want to buy or use the

 346 24 plug is dead on accurate because what we are talking

 346 25 about here are real consequences if somebody suffers

 347 1 noise-induced hearing loss, correct?

 347 2 A. I agree the manufacturer's information

 347 3 needs to be accurate.

347:20 - 348:4 Madison 2019-12-10

 347 20 Q. What -- what I asked you about was

 347 21 whether, since the manufacturer has the testing backup

 347 22 and data on the plug, and the fact the manufacturer is

 347 23 making claims about the plug and the manufacturer puts

 347 24 the instructions on the plug, doesn't the manufacturer

 347 25 bear the responsibility for those three things, to

 348 1 make sure those three things are accurate when it's

 348 2 selling its product -- product?

 348 3 A. Yes, I agree they have responsibility to

 348 4 make sure those three things are accurate.

Re: [347:20-348:4]

Def Obj Foundation (602)

OVERRULED

350:8 - 351:15 Madison 2019-12-10

 350 8 Q. Now, one of the -- there were a series of

 350 9 questions during the deposition regarding various

 350 10 testing that might have been performed relating to the

Re: [350:8-351:15]

Pltf Obj improper counter per PTO 64

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 141 of 145
Madison 2019-12-10 93

 350 11 Combat Arms earplug Version 2.

 350 12 Do you recall that?

 350 13 A. I recall that.

 350 14 Q. And for purposes of my questions, when I

 350 15 use the term "Combat Arms earplug Version 2," I'm

 350 16 speaking about the dual-ended Combat Arms earplug.

 350 17 Can we agree on that?

 350 18 A. Yes.

 350 19 Q. And one of -- some of the questions

 350 20 concerned certain labeling tests that were performed

 350 21 by Aearo back in the early 2000s for the Combat Arms

 350 22 Version 2.

 350 23 Do you recall that, the questions?

 350 24 A. Yes, I recall that, those questions.

 350 25 Q. At 3M, was it your responsibility to

 351 1 perform labeling tests on the Combat Arms earplug

 351 2 Version 2?

 351 3 A. No, it was not.

 351 4 Q. Was it your responsibility to perform

 351 5 labeling tests on what has been called the ARC

 351 6 earplug?

 351 7 A. No.

 351 8 Q. Was it your responsibility to perform

 351 9 labeling tests on any hearing protection device at 3M?

 351 10 A. It was not my responsibility.

 351 11 Q. Putting aside whether or not it was your

 351 12 responsibility, did you consider one of your

 351 13 specialties when you were at 3M to perform labeling

 351 14 tests for hearing protection devices?

 351 15 A. No.

351:16 - 355:1 Madison 2019-12-10

 351 16 Q. Earlier there was some discussion

 351 17 regarding a specific type of test called the REAT

 351 18 test.

 351 19 Do you recall that?

 351 20 A. Yes.

 351 21 Q. And what does REAT stand for?

 351 22 A. Real-ear attenuation at threshold.

 351 23 Q. And based on your work at 3M, did you

Re: [351:16-355:1]

Pltf Obj improper counter per PTO 64

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 142 of 145
Madison 2019-12-10 94

 351 24 become aware of various REAT tests that were performed

 351 25 on 3M or Aearo hearing protection devices?

 352 1 A. Can you say that again, please.

 352 2 Q. Sure. While we -- while you were at 3M,

 352 3 did you become aware of certain REAT tests that were

 352 4 performed on various hearing protection devices?

 352 5 A. Yes, I was aware of testing being

 352 6 performed on hearing protection devices.

 352 7 Q. While you were at 3M, was one of your

 352 8 specialties or focuses to perform REAT tests on

 352 9 hearing protection devices?

 352 10 A. No.

 352 11 Q. Was one of your specialties or focuses

 352 12 while you were at 3M to perform labeling tests on

 352 13 hearing protection devices?

 352 14 A. No.

 352 15 Q. You indicated earlier that your job title,

 352 16 at least after the acquisition of Aearo by 3M, was a

 352 17 technical services specialist or something similar to

 352 18 that?

 352 19 A. That's right.

 352 20 Q. As a technical service specialist, was one

 352 21 of your responsibility -- in one of your

 352 22 responsibilities to review all of the testing that had

 352 23 been performed relating to the Combat Arms earplug

 352 24 Version 2?

 352 25 A. No.

 353 1 Q. Did you ever attempt to identify all of

 353 2 the testing of the Combat Arms earplug Version 2 that

 353 3 had been performed, first of all, before the

 353 4 acquisition of Aearo in 2008?

 353 5 A. No.

 353 6 Q. Did you ever attempt to identify all of

 353 7 the testing of the Combat Arms earplug Version 2 that

 353 8 was performed at any point in time after the

 353 9 acquisition of Aearo by 3M in 2008?

 353 10 A. No.

 353 11 Q. There was some discussion earlier in the

 353 12 deposition regarding testing concerning the

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 143 of 145
Madison 2019-12-10 95

 353 13 situational awareness that could result if one was

 353 14 wearing a hearing protection device.

 353 15 Do you recall that?

 353 16 A. Yes.

 353 17 Q. Was one of your specialties or -- or

 353 18 focuses as a technical service specialist to evaluate

 353 19 the test data on the intelligibility that would result

 353 20 when users were wearing a hearing protection device

 353 21 such as the Combat Arms earplug Version 2?

 353 22 A. No.

 353 23 Q. Were you ever involved in performing

 353 24 testing to evaluate a soldier's situation awareness

 353 25 when wearing hearing protection devices?

 354 1 A. No.

 354 2 Q. As you sit here today, are you aware of

 354 3 all of the various tests that have been performed over

 354 4 the years relating to the Combat Arms earplug

 354 5 Version 2?

 354 6 A. No.

 354 7 Q. Do you know all of the entities or

 354 8 agencies that have been involved in evaluating or

 354 9 testing the Combat Arms earplug Version 2?

 354 10 A. No.

 354 11 Q. What about with respect to the testing on

 354 12 the Version 3 or Version 4 of the earplug?

 354 13 A. No.

 354 14 Q. There were a series of questions earlier

 354 15 about the Johnson Blast Overpressure study.

 354 16 Do you recall that?

 354 17 A. Yes, I do.

 354 18 Q. Was -- do you consider yourself to have

 354 19 expertise in evaluating blast overpressure studies?

 354 20 A. No, I don't.

 354 21 Q. At any point in time did you attempt to

 354 22 identify whether there were similar studies to the

 354 23 Johnson study that had been published in the

 354 24 peer-reviewed literature or otherwise that were

 354 25 evaluating Combat Arms earplugs?

 355 1 A. No, I didn't.

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 144 of 145
Madison 2019-12-10 96

Case 7:20-cv-00137-MCR-GRJ Document 99-1 Filed 03/22/21 Page 145 of 145