EXHIBIT 1

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 1 of 303
Mike Cimino 2019-12-11

Updated 3/3/2021

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 2 of 303
Revised Cimino 2019-12-11 2

Designation Objection Notes

7:8 - 7:13 Revised Cimino 2019-12-11

 7 8 Q. Would you please state your full name for

 7 9 the record?

 7 10 A. My full name is Mike Cimino.

 7 11 Q. Good morning, Mr. Cimino. My name is Tom

 7 12 Cartmell. It is nice to meet you.

 7 13 A. Nice to meet you.

8:12 - 8:17 Revised Cimino 2019-12-11

 8 12 Q. All right. So, let me ask you where you

 8 13 presently reside?

 8 14 A. I reside in Barrie, Ontario, Canada.

 8 15 Q. And how long have you been a resident of

 8 16 Canada?

 8 17 A. All my life.

8:23 - 9:2 Revised Cimino 2019-12-11

 8 23 Who are you currently employed by, sir?

 8 24 A. 3M.

 8 25 Q. And what is your current position at 3M?

 9 1 A. Currently I'm a -- a business development

 9 2 leader.

9:3 - 9:5 Revised Cimino 2019-12-11

 9 3 Q. Is it true that you've worked for 3M or

 9 4 its predecessor, the Aearo Technology Company for

 9 5 approximately 20 years?

Re: [9:3-9:5]

Def Obj Compound (611, 403)

OVERRULED

9:8 - 9:11 Revised Cimino 2019-12-11

 9 8 A. So I've worked with 3M company since 2008

 9 9 when they purchased Aearo company. With Aearo company

 9 10 I was there starting back in April -- actually, Aearo

 9 11 started back in January '99. Yeah, January '99.

Re: [9:8-9:11]

Def Obj Compound (611, 403)

OVERRULED

9:18 - 9:22 Revised Cimino 2019-12-11

 9 18 Q. Okay. And during that entire 20-year

 9 19 period of time, have you been working in the marketing

 9 20 department or the business side of the companies?

 9 21 A. Yeah, I've been on the customer-facing,

 9 22 either marketing or sales side.

10:15 - 10:24 Revised Cimino 2019-12-11

 10 15 I've marked as Exhibit 1 a copy of your

 10 16 resume. Let me ask you, did you prepare this resume

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 3 of 303
Revised Cimino 2019-12-11 3

 10 17 for this litigation?

 10 18 A. No.

 10 19 Q. This is a resume that you prepared when?

 10 20 A. So this would have been one that I would

 10 21 have picked up -- so this would have been one that I

 10 22 would have picked up as a result of having applied to

 10 23 other jobs within 3M. So it's -- it's a consolidated

 10 24 CV.

11:3 - 12:15 Revised Cimino 2019-12-11

 11 3 Q. So let me ask it, just to summarize for

 11 4 the jury, because I want to give them some idea who

 11 5 you are.

 11 6 But when you started at Aearo

 11 7 Technologies, it looks like you were a marketing

 11 8 director in -- in 1999, correct?

 11 9 A. Correct.

 11 10 Q. And then you received a promotion to

 11 11 business manager in October of 2006, is that correct?

 11 12 A. Correct.

 11 13 Q. Okay. After that, according to your CV,

 11 14 you became a business leader, tactical PPE military

 11 15 markets in April of 2008, right?

 11 16 A. Correct.

 11 17 Q. And PPE stands for personal protection

 11 18 equipment, is that right?

 11 19 A. Correct.

 11 20 Q. Okay. You then became a product marketing

 11 21 manager in January 2012 for active hearing, correct?

 11 22 A. Correct.

 11 23 Q. And we'll go back and talk about some of

 11 24 these, but if you go to the front -- the front page,

 11 25 just real quickly, in 2013 you were a product --

 12 1 product marketing manager, in 2014 you were a national

 12 2 accounts manager, in 2015 you were a regional sales

 12 3 manager, and in 2006 -- excuse me -- '18 you became

 12 4 your current -- or you started working in your current

 12 5 position, business development leader, is that

 12 6 correct?

 12 7 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 4 of 303
Revised Cimino 2019-12-11 4

 12 8 Q. All right. So, we've talked about all of

 12 9 those positions that you've had.

 12 10 Have those been promotions through the

 12 11 company primarily over those 20-some years?

 12 12 A. I would say they've been roles of

 12 13 escalating responsibility and not all promotions.

 12 14 Q. Some of them lateral moves?

 12 15 A. Yes.

14:7 - 14:11 Revised Cimino 2019-12-11

 14 7 Q. And as you marched through the company

 14 8 over the 20-some years, I take it you have benchmarks

 14 9 as far as sales and revenues for the products you are

 14 10 responsible for that are given to you by upper

 14 11 management, is that right?

Re: [14:7-14:11]

Def Obj Compound; Vague (611, 403)

OVERRULED

14:13 - 14:13 Revised Cimino 2019-12-11

 14 13 A. Yeah.

Re: [14:13-14:13]

Def Obj Compound; Vague (611, 403)

OVERRULED

21:11 - 21:15 Revised Cimino 2019-12-11

 21 11 Q. You understand you are a witness in this

 21 12 case because you were in marketing and in management

 21 13 over, for a period of time, a product, an earplug

 21 14 product called the Combat Arms Earplug, is that fair?

 21 15 A. Yeah.

Re: [21:11-21:15]

Def Obj Compound; Vague (611, 403)

OVERRULED

36:2 - 36:13 Revised Cimino 2019-12-11

 36 2 You stated previously that you were first

 36 3 involved with the Combat Arms Earplugs in 2006, right?

 36 4 A. As part of my product portfolio

 36 5 responsibility, correct.

 36 6 Q. And then tell the jury how long it was

 36 7 after that that you were involved from a marketing

 36 8 standpoint with the Combat Arms Version 2 earplug?

 36 9 A. So I don't remember exactly, but it would

 36 10 have been -- it would have been in my product mix

 36 11 through December 2011 as part of my responsibility as

 36 12 the business leader for the military market. So that

 36 13 would have been part of our product mix at the time.

36:20 - 36:23 Revised Cimino 2019-12-11

 36 20 Q. Do you think you had any responsibility

 36 21 related to Version 2, the Combat Arms Earplug, after

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 5 of 303
Revised Cimino 2019-12-11 5

 36 22 2011?

 36 23 A. I did not.

41:4 - 41:18 Revised Cimino 2019-12-11

 41 4 (WHEREUPON, a certain document was

 41 5 marked Mike Cimino Deposition Exhibit

 41 6 No. 4, for identification, as of

 41 7 12/11/2019.)

 41 8 BY MR. CARTMELL:

 41 9 Q. I'm going to hand you what's been marked

 41 10 as Exhibit 4.

 41 11 Mr. Cimino, I've handed you Exhibit 4,

 41 12 which is an e-mail and attachment that came from 3M's

 41 13 files in this case, and I want to ask you a few

 41 14 questions about this.

 41 15 You see from the e-mail that this is an

 41 16 e-mail from Doug Moses to Jason Jones and Eric Fallon.

 41 17 Do you see that?

 41 18 A. I do.

Re: [41:4-41:18]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN [41:4-41:18], 

3/12/2021

42:14 - 43:24 Revised Cimino 2019-12-11

 42 14 Q. Okay. You see that there is a document

 42 15 forwarded by Mr. Moses that talks about military

 42 16 timelines or a military milestones and time -- and a

 42 17 timeline.

 42 18 Do you see that?

 42 19 A. The Historical Timeline chart, yes.

 42 20 Q. Okay. Let's take a look at that. I want

 42 21 to give the jury some perspective as far as what is

 42 22 going on during the periods of time that the Combat

 42 23 Arms Earplugs Version 2 was being sold.

 42 24 And you see that this Historical Timeline

 42 25 has US military activity that is occurring from 1999

 43 1 through 2004, do you see that?

 43 2 A. Um-hum.

 43 3 Q. And, for example, in 2001, that's when the

 43 4 Afghan -- Afghanistan deployments began, right?

 43 5 A. Yes.

 43 6 Q. In 2003 the Iraqi war began. Is that

 43 7 consistent with your recollection?

 43 8 A. Correct.

Re: [42:14-43:24]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 6 of 303
Revised Cimino 2019-12-11 6

 43 9 Q. And thereafter, you'll see in 2004,

 43 10 shortly after the Iraqi war began, the Generation 2

 43 11 Combat Arms Earplug was launched.

 43 12 Is that consistent with your memory?

 43 13 A. I'd have to assume this is correct. I --

 43 14 I wasn't -- I don't remember when Gen 2 was officially

 43 15 launched.

 43 16 Q. I see. You know it was launched and had

 43 17 been on the market for a period of time prior to you

 43 18 taking over responsibility for it?

 43 19 A. Yes.

 43 20 Q. And then you mentioned just a second ago

 43 21 that there was a lot of activity and a lot of money

 43 22 being spent by the military when you took over in

 43 23 2006, correct?

 43 24 A. Correct.

43:25 - 44:4 Revised Cimino 2019-12-11

 43 25 Q. And that was because, as we've -- as this

 44 1 timeline shows, there were two wars that had been

 44 2 started by that time and, I take it, tens of thousands

 44 3 of soldiers had been deployed overseas into combat, is

 44 4 that -- is that correct?

Re: [43:25-44:4]

Def Obj Comopund; Misstates (611, 

403) ; Foundation (602)

OVERRULED

44:7 - 44:8 Revised Cimino 2019-12-11

 44 7 A. So there was certainly surge deployments

 44 8 at that time. I -- I don't recall the exact numbers.

Re: [44:7-44:8]

Def Obj Compound; Misstates (611, 

403); Foundation (602)

OVERRULED

44:9 - 44:24 Revised Cimino 2019-12-11

 44 9 BY MR. CARTMELL:

 44 10 Q. Okay. But as there are more soldiers who

 44 11 are deployed over into combat or overseas into wars,

 44 12 obviously the military is going to have a greater need

 44 13 for personal protection equipment like earplugs or

 44 14 earmuffs, that sort of thing, correct?

 44 15 A. Well, with more people there is more --

 44 16 more consumption.

 44 17 Q. Okay. And -- and you can see from this

 44 18 timeline that in 2006, around the time you were

 44 19 appointed to lead the strategic business unit that

 44 20 included the Combat Arms Earplug, one million pair of

 44 21 Generation 2 Combat Arms Earplugs were purchased by or

Re: [44:9-44:24]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 7 of 303
Revised Cimino 2019-12-11 7

 44 22 ordered by the DLA.

 44 23 Do you see that?

 44 24 A. I do.

85:8 - 85:13 Revised Cimino 2019-12-11

 85 8 Q. So when you became the vice president

 85 9 for -- of the strategic business unit in charge of

 85 10 this product and the sales to the military, did you go

 85 11 back and look to see if it had ever been tested in

 85 12 your laboratory at Aearo Technologies?

 85 13 A. I did not.

85:19 - 85:22 Revised Cimino 2019-12-11

 85 19 Q. You knew prior to taking over this product

 85 20 that before this product could be sold to the

 85 21 military, it needed to have what's called a noise

 85 22 reduction rating?

Re: [85:19-85:22]

Def Obj Misstates (611, 403); 

Foundation (602)

SUSTAINED

85:25 - 86:3 Revised Cimino 2019-12-11

 85 25 A. So, I did not know that going in. I don't

 86 1 know -- I did not know what the specs -- the

 86 2 specifications were around that product going into --

 86 3 into my job.

Re: [85:25-86:3]

Def Obj Misstates (611, 403); 

Foundation (602)

SUSTAINED

90:23 - 90:25 Revised Cimino 2019-12-11

 90 23 Q. Did you know anything about the EPA

 90 24 requiring an NRR rating on your products that you are

 90 25 responsible for?

Re: [90:23-90:25]

Def Obj Foundation (602)

SUSTAINED

91:3 - 91:8 Revised Cimino 2019-12-11

 91 3 A. I don't recall.

 91 4 BY MR. CARTMELL:

 91 5 Q. You don't think you did?

 91 6 A. I say I don't recall.

 91 7 Q. You may have, you just don't know?

 91 8 A. I -- I don't recall.

Re: [91:3-91:8]

Def Obj Foundation (602)

SUSTAINED AS TO [91:3]

FOUNDATION OBJECTION 

WITHDRAWN [91:5-91:8]

93:1 - 93:13 Revised Cimino 2019-12-11

 93 1 Q. Would you have assumed that it would have

 93 2 been tested at Aearo Technology prior to the time that

 93 3 it was first sold to the military?

 93 4 A. I'm not really comfortable answering what

 93 5 I assumed or didn't assume at the time.

 93 6 Q. Well, you would review test results from

 93 7 the Aearo Technology lab from time to time?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 8 of 303
Revised Cimino 2019-12-11 8

 93 8 A. I would not review tests.

 93 9 Q. You would review test results?

 93 10 A. No.

 93 11 Q. And you would have interaction with the

 93 12 laboratory at Aearo Technology from time to time?

 93 13 A. Definitely.

93:14 - 93:16 Revised Cimino 2019-12-11

 93 14 Q. And part of that was so that you could

 93 15 figure out what the noise reduction rating was for the

 93 16 products that you were responsible for, correct?

Re: [93:14-93:16]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

93:20 - 93:21 Revised Cimino 2019-12-11

 93 20 A. So, we would know what the final NRRs

 93 21 would be of products that were tested.

Re: [93:20-93:21]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

93:22 - 93:22 Revised Cimino 2019-12-11

 93 22 BY MR. CARTMELL:

93:23 - 94:13 Revised Cimino 2019-12-11

 93 23 Q. And you understood, as you just said, that

 93 24 an NRR, or a noise reduction rating, would come about

 93 25 as a result of a test, correct?

 94 1 A. Yes.

 94 2 Q. Okay. And you understood from your

 94 3 experience, and we can go through some of these

 94 4 documents, but your experience was in order for the

 94 5 Aearo Technologies products to get an NRR rating, they

 94 6 would be tested in the laboratory?

 94 7 A. There would be a testing process in place,

 94 8 correct.

 94 9 Q. Right. And typically I think individuals

 94 10 who are employed by the company in the laboratory

 94 11 like, for example, Elliott Berger or Ron Kieper would

 94 12 be the ones who would test the product, correct?

 94 13 A. As I recall.

Re: [93:23-94:13]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

95:12 - 95:16 Revised Cimino 2019-12-11

 95 12 (WHEREUPON, a certain document was

 95 13 marked Mike Cimino Deposition Exhibit

 95 14 No. 7, for identification, as of

 95 15 12/11/2019.)

 95 16 BY MR. CARTMELL:

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 9 of 303
Revised Cimino 2019-12-11 9

95:17 - 96:1 Revised Cimino 2019-12-11

 95 17 Q. I'm going to hand you Exhibit 7, sir.

 95 18 Exhibit 7 is an e-mail and attachment that

 95 19 was produced in this litigation from the Defendants,

 95 20 and it -- you'll see it is an e-mail from Kevin Spahn

 95 21 to Doug Moses.

 95 22 Kevin Spahn is who?

 95 23 A. Kevin Spahn was a -- I can't remember his

 95 24 official -- well, there it is. He was a graphics

 95 25 coordinator, so he did all of the graphics and

 96 1 packaging and whatnot.

Re: [95:17-96:1]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

96:10 - 96:17 Revised Cimino 2019-12-11

 96 10 Q. Now, we -- we've talked about an NRR, or

 96 11 noise reduction rating, and on the right side of this

 96 12 exhibit, there is two boxes for the Combat Arms

 96 13 Earplugs that we're talking about in this lawsuit, one

 96 14 that has a noise reduction rating of 22 and the other

 96 15 that has a noise reduction of 0.

 96 16 Do you see that?

 96 17 A. I do.

Re: [96:10-96:17]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

99:13 - 99:18 Revised Cimino 2019-12-11

 99 13 Q. Okay. And the 22, for instance, on the

 99 14 green end, you understand from being in this industry

 99 15 for 20 years and working with hearing protective

 99 16 devices, that the higher numbers denote greater

 99 17 effectiveness of the earplug, correct?

 99 18 A. Yes.

Re: [99:13-99:18]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

100:5 - 100:9 Revised Cimino 2019-12-11

 100 5 Q. So, in other words, if somebody is using

 100 6 an earplug like the green end of the Combat Arms

 100 7 Earplug, the higher number or the higher the number it

 100 8 is, the greater effectiveness that earplug has,

 100 9 correct?

Re: [100:5-100:9]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

100:12 - 100:13 Revised Cimino 2019-12-11

 100 12 A. The higher the number, the higher the

 100 13 noise reduction rating of the earplug, correct.

Re: [100:12-100:13]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

106:15 - 107:13 Revised Cimino 2019-12-11

 106 15 (WHEREUPON, a certain document was

 106 16 marked Mike Cimino Deposition Exhibit

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 10 of 303
Revised Cimino 2019-12-11 10

 106 17 No. 8, for identification, as of

 106 18 12/11/2019.)

 106 19 BY MR. CARTMELL:

 106 20 Q. Mr. Cimino, I'm going to hand you what's

 106 21 been marked as Exhibit 8, which is an e-mail string

 106 22 that was produced to us by 3M in this litigation and

 106 23 ask you a few questions about this.

 106 24 Mr. Cimino, if you go to the bottom of

 106 25 this e-mail string, this is 2004, January 7th.

 107 1 Do you see that?

 107 2 A. I do.

 107 3 Q. This is before you ever took over

 107 4 responsibility for the Combat Arms Earplug Version 2,

 107 5 correct?

 107 6 A. Correct.

 107 7 Q. You're having an e-mail conversation with

 107 8 a man named Elliott Berger, are you not?

 107 9 A. Yep.

 107 10 Q. Elliott Berger was actually the director

 107 11 of the laboratory at Aearo Technologies at this time,

 107 12 correct?

 107 13 A. Correct.

107:23 - 108:3 Revised Cimino 2019-12-11

 107 23 Q. Right. And you had been responsible from

 107 24 products during the early 2000s that were launched by

 107 25 Aearo Technologies onto the marketplace, correct?

 108 1 A. Correct.

 108 2 Q. Hearing protective devices, correct?

 108 3 A. Correct.

108:21 - 108:25 Revised Cimino 2019-12-11

 108 21 answer to my prior question, you understand as of 2004

 108 22 that products would be tested by Elliott Berger and

 108 23 others in the laboratory at Aearo Technologies in

 108 24 order to get a noise reduction rating for the product,

 108 25 correct?

Re: [108:21-108:25]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

109:4 - 109:5 Revised Cimino 2019-12-11

 109 4 A. So I know and knew that the lab in

 109 5 Indianapolis did testing for NRR for our products.

Re: [109:4-109:5]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 11 of 303
Revised Cimino 2019-12-11 11

109:6 - 109:6 Revised Cimino 2019-12-11

 109 6 BY MR. CARTMELL:

109:7 - 109:10 Revised Cimino 2019-12-11

 109 7 Q. And if you were responsible for that

 109 8 product, in other words, if it was a product in your

 109 9 portfolio, you were very interested in that NRR rating

 109 10 from a marketing perspective, correct?

Re: [109:7-109:10]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

109:13 - 109:15 Revised Cimino 2019-12-11

 109 13 A. So within the project scope, there would

 109 14 have been -- yeah, there would have been a -- an NRR

 109 15 target.

Re: [109:13-109:15]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

109:24 - 110:1 Revised Cimino 2019-12-11

 109 24 Q. Well, you had -- you had your desires from

 109 25 a marketing perspective of where you wanted to see the

 110 1 NRR for your products, correct?

Re: [109:24-110:1]

Def Obj Compound; Vague(611, 403); 

Foundation (602)

OVERRULED

110:4 - 110:4 Revised Cimino 2019-12-11

 110 4 A. There would have been a target goal.

Re: [110:4-110:4]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

110:5 - 110:5 Revised Cimino 2019-12-11

 110 5 BY MR. CARTMELL:

110:6 - 110:9 Revised Cimino 2019-12-11

 110 6 Q. Right. And that's because you are going

 110 7 to use that NRR as a marketing person to go market to

 110 8 customers about your product and the noise reduction

 110 9 capabilities of those products, right?

Re: [110:6-110:9]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

110:12 - 110:14 Revised Cimino 2019-12-11

 110 12 A. We would have had a -- we would have had

 110 13 an NRR associated with the product, yes, and a target

 110 14 NRR as part of the project specification.

Re: [110:12-110:14]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

110:15 - 110:18 Revised Cimino 2019-12-11

 110 15 BY MR. CARTMELL:

 110 16 Q. Right. So this e-mail string is talking

 110 17 about a product that is being tested.

 110 18 A. Uh-huh.

110:19 - 110:22 Revised Cimino 2019-12-11

 110 19 Q. You have responsibility as the marketing

 110 20 person for that, you know it's going to be tested by

 110 21 Elliott in the lab and so you reach out to Elliott, do

 110 22 you not?

Re: [110:19-110:22]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 12 of 303
Revised Cimino 2019-12-11 12

110:25 - 111:1 Revised Cimino 2019-12-11

 110 25 A. I've reached out to Elliott in this

 111 1 e-mail.

Re: [110:25-111:1]

Def Obj Compound; Vague (611, 403); 

Foundation (602)

OVERRULED

116:2 - 116:9 Revised Cimino 2019-12-11

 116 2 Q. And if you go up above, Elliott responds

 116 3 to you and says: "The results will be the results."

 116 4 But then he offers to you that while the test is going

 116 5 on, he will let you know in the middle of the test

 116 6 after the 8th or 9th person how it's looking as far as

 116 7 the noise reduction rating and whether or not he is

 116 8 going to be able to achieve your marketing target for

 116 9 the NRR, correct?

Re: [116:2-116:9]

Def Obj Relevance (401, 402); 3M MIL 

No. 18

OVERRULED

116:12 - 116:12 Revised Cimino 2019-12-11

 116 12 A. He says what he says there, yes.

Re: [116:12-116:12]

Def Obj Relevance (401, 402); 3M MIL 

No. 18

OVERRULED

116:13 - 116:23 Revised Cimino 2019-12-11

 116 13 BY MR. CARTMELL:

 116 14 Q. Okay. And then you respond to that by

 116 15 saying:

 116 16 "Understood. Please advise by the 8th or

 116 17 9th person what it looks like it will come up to.

 116 18 Looking for minimum 26 on A, 24 on B, 23 on P3E, that

 116 19 is what the current ones tested out to there. Ideally

 116 20 a little bit higher on the B and P3E would be great.

 116 21 Keep me posted."

 116 22 Do you see that?

 116 23 A. I do.

Re: [116:13-116:23]

Def Obj Relevance (401, 402); 3M MIL 

No. 18

OVERRULED

116:24 - 117:4 Revised Cimino 2019-12-11

 116 24 Q. So you are a member of marketing and you

 116 25 have now reached out to the laboratory that's going to

 117 1 test one of the products you are responsible for and

 117 2 you've told them what your targets would be and what

 117 3 you would like to see or what you would desire to see

 117 4 the NRRs to be for those products, correct?

Re: [116:24-117:4]

Def Obj Relevance (401, 402); 

Compound; Misstates (611, 403); 3M 

MIL No. 18

OVERRULED

117:7 - 117:8 Revised Cimino 2019-12-11

 117 7 A. That would have been part of the project

 117 8 scope, yes.

Re: [117:7-117:8]

Def Obj Relevance (401, 402); 

Compound; Misstates (611, 403); 3M 

MIL No. 18

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 13 of 303
Revised Cimino 2019-12-11 13

117:17 - 117:20 Revised Cimino 2019-12-11

 117 17 Q. You understood that when the NRR rating

 117 18 was being tested or they were testing to try to obtain

 117 19 that for your products that there would be ten

 117 20 subjects who would usually be tested, correct?

Re: [117:17-117:20]

Def Obj Relevance (401, 402); 3M MIL 

No. 18; Foundation (602)

OVERRULED

117:24 - 117:25 Revised Cimino 2019-12-11

 117 24 A. So this I'm responding to Elliott that per

 117 25 his note after the 8th or 9th person to let me know.

Re: [117:24-117:25]

Def Obj Relevance (401, 402); 3M MIL 

No. 18; Foundation (602)

OVERRULED

118:20 - 119:5 Revised Cimino 2019-12-11

 118 20 Q. Mr. Cimino, we are back on the record

 118 21 after a short break. Are you ready to proceed?

 118 22 A. I am.

 118 23 Q. Now, we were talking about NRRs, or noise

 118 24 reduction ratings, and we've established that this is

 118 25 the noise reduction rating that is affixed to the

 119 1 label for the Combat Arms Earplug Version 2.

 119 2 On the left, the 22 is for the green side

 119 3 or the closed end and on the right is the yellow end

 119 4 which is a 0, correct?

 119 5 A. That's what I see, yes.

Re: [118:20-119:5]

Def Obj Foundation (602)

DESIGNATION WITHDRAWN, 

3/12/2021

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

121:7 - 121:11 Revised Cimino 2019-12-11

 121 7 Q. I'm going to hand you Exhibit 9.

 121 8 (WHEREUPON, a certain document was

 121 9 marked Mike Cimino Deposition Exhibit

 121 10 No. 9, for identification, as of

 121 11 12/11/2019.)

121:15 - 122:4 Revised Cimino 2019-12-11

 121 15 Q. Mr. Cimino, this is a report that was

 121 16 provided to us from 3M's files in this litigation, and

 121 17 I want to ask you some questions. It's dated

 121 18 July 10th of 2000.

 121 19 Do you see that?

 121 20 A. I do.

 121 21 Q. It's titled: How Folding the Flanges Back

 121 22 Affects REAT Results of the UltraFit Earplug End of

 121 23 the Combat Arms Plug.

 121 24 Do you see that?

 121 25 A. I see that.

 122 1 Q. Now, the authors of this are R. W. Kieper,

Re: [121:15-122:4]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED AS TO 401, 402, AND 

403 OBJECTIONS

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 14 of 303
Revised Cimino 2019-12-11 14

 122 2 B.S. and E. H. Berger, M.S.

 122 3 Do you see that?

 122 4 A. I do.

122:5 - 122:7 Revised Cimino 2019-12-11

 122 5 Q. We were just talking about, before the

 122 6 break, some e-mails related to NRR testing that you

 122 7 were involved with with Mr. Berger, correct?

Re: [122:5-122:7]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

SUSTAINED

122:10 - 122:11 Revised Cimino 2019-12-11

 122 10 A. We were looking at an e-mail exchange,

 122 11 yes.

Re: [122:10-122:11]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

SUSTAINED

123:13 - 123:15 Revised Cimino 2019-12-11

 123 13 MR. ELLIS: I don't mean to quibble. I don't

 123 14 think he has had a second to look over it.

 123 15 BY THE WITNESS:

Re: [123:13-123:15]

Pltf Obj FRE 401/403; Improper 

statements of Counsel

SUSTAINED

123:22 - 124:4 Revised Cimino 2019-12-11

 123 22 Do you think, though, having looked

 123 23 briefly through this report that somebody has told you

 123 24 about this report before?

 123 25 A. No. I don't -- I don't have any

 124 1 recollection.

 124 2 Q. This report includes testing that was done

 124 3 on the Combat Arms dual-ended earplug back in 2000.

 124 4 Do you see that?

Re: [123:22-124:4]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

124:7 - 124:7 Revised Cimino 2019-12-11

 124 7 A. I see what's on the screen as this, yeah.

Re: [124:7-124:7]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

125:9 - 126:2 Revised Cimino 2019-12-11

 125 9 Q. Okay. This report says that there were

 125 10 two tests done on the green end of the Combat Arms

 125 11 Earplug to try to determine the noise reduction

 125 12 rating, correct?

 125 13 A. I don't know. Where -- where would it say

 125 14 that?

 125 15 Q. Okay. It states, if you go up to Device

 125 16 Tested on the second page, the paragraph beginning

 125 17 Device Tested.

 125 18 A. Uh-huh.

 125 19 Q. And if you go to the last sentence, it

 125 20 states:

Re: [125:9-126:2]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

REMAINING OBJECTIONS 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 15 of 303
Revised Cimino 2019-12-11 15

 125 21 "The solid plug end is green and it was

 125 22 this plug which was evaluated in two separate REAT

 125 23 tests," and then it gives the number of the test,

 125 24 "213015 and 213017. This is" -- "this plug is the

 125 25 linear earplug end of the Combat Arms Plug."

 126 1 Do you see that?

 126 2 A. I see that.

126:19 - 126:24 Revised Cimino 2019-12-11

 126 19 "The initial test 213015 was stopped after

 126 20 eight subjects because the individual results were

 126 21 variable and the NRR was quite low," and then in

 126 22 parentheses it says, "(11)?"

 126 23 Do you see that?

 126 24 A. I see that, yes.

Re: [126:19-126:24]

Def Obj 3M MIL No. 18; Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

REMAINING OBJECTIONS 

OVERRULED

126:25 - 127:6 Revised Cimino 2019-12-11

 126 25 Q. So we -- we just talked about an e-mail he

 127 1 can change that you had with Elliott Berger about one

 127 2 of the products you were responsible for in 2011, and

 127 3 you asked Elliott Berger to stop the testing and tell

 127 4 you, a member of marketing, what the results were

 127 5 after eight or nine people were tested.

 127 6 Do you recall that?

Re: [126:25-127:6]

Def Obj Misstates; Argumentative

(611, 403); 3M MIL No. 18; Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

OVERRULED

127:9 - 127:18 Revised Cimino 2019-12-11

 127 9 A. I asked him to advise. I didn't tell him

 127 10 to stop.

 127 11 BY MR. CARTMELL:

 127 12 Q. Okay. But you -- so you knew as of the

 127 13 time of this report, 2006 at least, that that was

 127 14 something that Elliott Berger might do, in other

 127 15 words, he might do testing and he, at least you knew,

 127 16 might inform marketing what the result -- results were

 127 17 after eight or nine individuals, correct? You had

 127 18 that experience?

Re: [127:9-127:18]

Def Obj Misstates; Argumentative 

(611, 403); 3M MIL No. 18; Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

OVERRULED

127:21 - 127:22 Revised Cimino 2019-12-11

 127 21 A. I can only speak to this one. I don't --

 127 22 I don't have a general experience.

Re: [127:21-127:22]

Def Obj Misstates; Argumentative 

(611, 403); 3M MIL No. 18; Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 16 of 303
Revised Cimino 2019-12-11 16

127:23 - 128:1 Revised Cimino 2019-12-11

 127 23 BY MR. CARTMELL:

 127 24 Q. Now, it states that the NRR was quite low,

 127 25 11, after the eight subjects.

 128 1 Do you see that?

128:4 - 128:4 Revised Cimino 2019-12-11

 128 4 A. Yeah, up on the screen, yeah.

131:4 - 131:11 Revised Cimino 2019-12-11

 131 4 Q. And then if you -- if you go down to the

 131 5 next paragraph, this is the test on the green end of

 131 6 the Combat Arms Earplug.

 131 7 It states: "For test 213015, the plugs

 131 8 were fit according to the standard plug's fitting

 131 9 instructions, with no modifications."

 131 10 Do you see that?

 131 11 A. I do.

Re: [131:4-131:11]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

REMAINING OBJECTIONS 

OVERRULED

131:25 - 132:14 Revised Cimino 2019-12-11

 131 25 Q. And then it states: "Because the stem of

 132 1 the green, solid end of the plug is so short; it was

 132 2 difficult for the experimenter to insert the plug

 132 3 deeply into some subject's ear canals, especially

 132 4 those with medium and larger ear canals."

 132 5 Do you see that?

 132 6 A. I do.

 132 7 Q. "Additionally, the geometry of the ear

 132 8 canal opening sometimes prevented the deep plug

 132 9 insertion required for maximum attenuation values."

 132 10 And so that -- that's just saying that

 132 11 when they did this test in Aearo's laboratory on the

 132 12 green end, in some individuals who had medium and

 132 13 larger ear canals, it was very difficult to insert it

 132 14 and get a good fit, correct?

Re: [131:25-132:14]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION 

WITHDRAWN [131:25-132:6], 

3/12/2021

REMAINING OBJECTIONS 

OVERRULED

132:17 - 133:5 Revised Cimino 2019-12-11

 132 17 A. Again, I can only read what -- what's up

 132 18 there. I wasn't -- I did not witness it, so.

 132 19 BY MR. CARTMELL:

 132 20 Q. And then it states: "When the solid plug

 132 21 was fitted during first test, the basal edge of the

 132 22 third flange of the yellow, level-dependent plug

Re: [132:17-133:5]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION 

WITHDRAWN [132:20-133:5], 

3/12/2021

REMAINING OBJECTIONS 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 17 of 303
Revised Cimino 2019-12-11 17

 132 23 sometimes pressed against the subject's ear canal

 132 24 opening and folded up. When the inward pressure of

 132 25 the plug was released, the yellow plug's flanges

 133 1 tended to return to their original shape and this

 133 2 sometimes loosened the plug, often imperceptibly to

 133 3 the subject."

 133 4 Do you see that?

 133 5 A. I can read that, yes.

136:18 - 136:20 Revised Cimino 2019-12-11

 136 18 Q. Okay. Now, had you ever been told about

 136 19 this report or any of its findings?

 136 20 A. I don't recall this report at all.

Re: [136:18-136:20]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION WITHDRAWN 

[136:18-20]

REMAINING OBJECTIONS OVERRULED

136:21 - 137:2 Revised Cimino 2019-12-11

 136 21 Q. Just to make it clear, you had never been

 136 22 told by anyone at the company, Elliott Berger, Ron

 136 23 Kieper, or anyone else when you took over

 136 24 responsibility for marketing this product, that they

 136 25 did an initial test on the product and they had to

 137 1 stop the test after eight subjects.

 137 2 You were never told that, correct?

Re: [136:21-137:2]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

137:5 - 137:6 Revised Cimino 2019-12-11

 137 5 A. I don't ever recall either this report or

 137 6 being told.

Re: [137:5-137:6]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

138:7 - 138:13 Revised Cimino 2019-12-11

 138 7 Q. Do you agree with me, sir, that this test

 138 8 of the eight subjects, when they found these things in

 138 9 2000 related to Combat Arms Earplugs, you as the

 138 10 marketing director and vice president of the strategic

 138 11 business unit for sales of this product to the

 138 12 military, you should have been told this.

 138 13 Do you agree with me?

Re: [138:7-138:13]

Def Obj Compound; Argumentative 

(611, 403); Foundation (602); 

Relevance (401, 402); Prejudice (403)

OVERRULED

138:16 - 138:17 Revised Cimino 2019-12-11

 138 16 A. I wouldn't say so.

 138 17 BY MR. CARTMELL:

Re: [138:16-138:17]

Def Obj Compound; Argumentative 

(611, 403); Foundation (602); 

Relevance (401, 402); Prejudice (403)

OVERRULED

139:21 - 139:22 Revised Cimino 2019-12-11

 139 21 Q. And you don't think it was important for

 139 22 you to be made aware of?

Re: [139:21-139:22]

Def Obj Vague (611, 403); Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 18 of 303
Revised Cimino 2019-12-11 18

139:25 - 140:1 Revised Cimino 2019-12-11

 139 25 A. Again, I wasn't -- I just wasn't aware of

 140 1 this report.

Re: [139:25-140:1]

Def Obj Vague (611, 403); Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

OVERRULED

140:3 - 140:16 Revised Cimino 2019-12-11

 140 3 Q. Okay. But I'm asking a little different

 140 4 question. I'm not trying to hound you.

 140 5 I want to know -- the jury to know whether

 140 6 you think, as a vice president of the strategic

 140 7 business unit and sales to the military of this

 140 8 product that your own laboratory tested and had to

 140 9 stop the test after eight individuals because they

 140 10 were having difficulty fitting the product in -- in

 140 11 people with medium, large ear canals and in some of

 140 12 the subjects actually the plug would not stay in

 140 13 place, it would loosen imperceptibly without the

 140 14 individual knowing it, what I want the jury to know is

 140 15 do you believe you should have been told that or do

 140 16 you believe you would have wanted to know that?

Re: [140:3-140:16]

Def Obj Vague (611, 403); Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

OVERRULED

140:19 - 140:20 Revised Cimino 2019-12-11

 140 19 A. I -- I would not have got involved in this

 140 20 level of detail.

Re: [140:19-140:20]

Def Obj Vague (611, 403); Foundation 

(602); Relevance (401, 402); Prejudice 

(403)

OVERRULED

140:21 - 140:21 Revised Cimino 2019-12-11

 140 21 BY MR. CARTMELL:

140:22 - 140:25 Revised Cimino 2019-12-11

 140 22 Q. Would you have wanted to know this

 140 23 information?

 140 24 A. Again, I wasn't privy to it and I -- I

 140 25 just did not know about this report.

Re: [140:22-140:25]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

REMAINING OBJECTIONS 

OVERRULED

141:3 - 141:6 Revised Cimino 2019-12-11

 141 3 In retrospect, is it something you think

 141 4 you would have wanted to have known so that you could

 141 5 at least discuss it with individuals to make sure the

 141 6 product was safe?

Re: [141:3-141:6]

Def Obj Vague; Misstates (611, 403); 

Foundation (602); Relevance (401, 

402); Prejudice (403)

OVERRULED

141:10 - 141:11 Revised Cimino 2019-12-11

 141 10 A. At the point I took it over, those

 141 11 discussions would have already been had.

Re: [141:10-141:11]

Def Obj Vague; Misstates (611, 403); 

Foundation (602); Relevance (401, 

402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 19 of 303
Revised Cimino 2019-12-11 19

141:12 - 141:12 Revised Cimino 2019-12-11

 141 12 BY MR. CARTMELL:

141:13 - 141:16 Revised Cimino 2019-12-11

 141 13 Q. Do you know if this report actually was

 141 14 provided to anyone else in the company other than

 141 15 Elliott Berger or Ron Kieper?

 141 16 A. I do not know that.

Re: [141:13-141:16]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

REMAINING OBJECTIONS 

OVERRULED

141:17 - 141:19 Revised Cimino 2019-12-11

 141 17 Q. So you say the discussions would have been

 141 18 had, but if nobody saw the report, how would there

 141 19 have been discussions?

Re: [141:17-141:19]

Def Obj Vague; Compound (611, 403); 

Foundation (602); Relevance (401, 

402); Prejudice (403)

OVERRULED

141:22 - 141:22 Revised Cimino 2019-12-11

 141 22 A. I don't know.

Re: [141:22-141:22]

Def Obj Vague; Compound (611, 403); 

Foundation (602); Relevance (401, 

402); Prejudice (403)

OVERRULED

147:4 - 147:6 Revised Cimino 2019-12-11

 147 4 Q. Let me ask you this: Don't you think that

 147 5 soldiers who are wearing these plugs that were sold by

 147 6 your company would have wanted to know this?

Re: [147:4-147:6]

Def Obj Foundation (602); Relevance 

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

(611. 403)

SUSTAINED

147:9 - 147:11 Revised Cimino 2019-12-11

 147 9 A. I don't have any knowledge of this report

 147 10 or what the details were in order to be able to tell

 147 11 anybody about it.

Re: [147:9-147:11]

Def Obj Foundation (602); Relevance 

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

(611. 403)

SUSTAINED

150:24 - 151:2 Revised Cimino 2019-12-11

 150 24 Q. Did anybody tell you that the 22 NRR that

 150 25 was assigned to the Combat Arms Earplug Version 2

 151 1 actually resulted from testing with the flanges folded

 151 2 back on the outward-facing plug?

Re: [150:24-151:2]

Def Obj Compound; Misstates (611, 

403); Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

151:6 - 151:9 Revised Cimino 2019-12-11

 151 6 A. No, I don't have any recollection of that.

 151 7 BY MR. CARTMELL:

 151 8 Q. You never knew that before this

 151 9 litigation?

Re: [151:6-151:9]

Def Obj Compound; Misstates (611, 

403); Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

151:12 - 151:12 Revised Cimino 2019-12-11

 151 12 A. I did not know that, no.

Re: [151:12-151:12]

Def Obj Compound; Misstates (611, 

403); Foundation (602); Relevance 

(401, 402); Prejudice (403)

OVERRULED

240:13 - 240:18 Revised Cimino 2019-12-11

 240 13 Q. In your experience with working at Aearo

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 20 of 303
Revised Cimino 2019-12-11 20

 240 14 Technologies and then 3M and your experience with the

 240 15 lab in -- in Indiana called E-A-RCAL that Mr. Berger

 240 16 runs, have you experienced that there is tension

 240 17 between the marketing department and the lab?

 240 18 A. No, I can't...

240:19 - 240:21 Revised Cimino 2019-12-11

 240 19 Q. You've -- have you experienced that the

 240 20 lab performs legal tricks to try to get the highest

 240 21 NRRs for its product, for the company's products?

Re: [240:19-240:21]

Def Obj Argumentative; Misstates 

(611, 403); Foundation (602)

SUSTAINED

241:1 - 241:2 Revised Cimino 2019-12-11

 241 1 A. Elliott would have had his processes in

 241 2 place. I'm not familiar.

Re: [241:1-241:2]

Def Obj Argumentative; Misstates 

(611, 403); Foundation (602)

SUSTAINED

241:10 - 241:13 Revised Cimino 2019-12-11

 241 10 Q. Okay. Do you know if he uses legal tricks

 241 11 in order to try to get the highest NRRs?

 241 12 A. I don't know what -- what Elliott's

 241 13 processes are.

Re: [241:10-241:13]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

241:14 - 241:18 Revised Cimino 2019-12-11

 241 14 (WHEREUPON, a certain document was

 241 15 marked Mike Cimino Deposition Exhibit

 241 16 No. 17, for identification, as of

 241 17 12/11/2019.)

 241 18 BY MR. CARTMELL:

241:19 - 242:1 Revised Cimino 2019-12-11

 241 19 Q. I'm going to hand you what's been marked

 241 20 as Exhibit 17. This is an e-mail that was provided to

 241 21 us by 3M in this litigation.

 241 22 I'm going to ask you a question about the

 241 23 last e-mail that's on .5, but if you take a look at,

 241 24 just so you know, if you take a look at earlier pages,

 241 25 it will show that it was an e-mail from Doug Ohlin to

 242 1 Doug Moses in the marketing group on May 28th, 2009.

Re: [241:19-242:1]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

243:11 - 243:16 Revised Cimino 2019-12-11

 243 11 Q. And we've talked about Mr. Ohlin, but

 243 12 Mr. Ohlin was the retiree from the military who was

 243 13 the director of the Hearing Conservation program

 243 14 there, and after he retired your company actually

 243 15 hired him as a consultant, right?

 243 16 A. Correct.

Re: [243:11-243:16]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 21 of 303
Revised Cimino 2019-12-11 21

244:11 - 244:21 Revised Cimino 2019-12-11

 244 11 And it states: "Doug, I'd like to keep

 244 12 this between you and me. There is already enough

 244 13 tension between the research and marketing groups in

 244 14 your shop without me adding to it, but I have to vent

 244 15 to you my frustration over that reduced NRR for the

 244 16 new version of the Combat Arms Earplug."

 244 17 And you -- did you say you reviewed

 244 18 Mr. Moses' testimony or you were told about it,

 244 19 because this is something that Mr. Moses talked about

 244 20 in his deposition?

 244 21 Did you know that?

Re: [244:11-244:21]

Def Obj Compound (611, 403); 

Hearsay (801, 802); Foundation (602)

OVERRULED

245:2 - 245:2 Revised Cimino 2019-12-11

 245 2 A. I did not review Doug's testimony.

Re: [245:2-245:2]

Def Obj Compound (611, 403); 

Hearsay (801, 802); Foundation (602)

OVERRULED

245:3 - 245:19 Revised Cimino 2019-12-11

 245 3 Q. Okay. Anyway, he mentions tension between

 245 4 research, or the lab, and marketing at 3M, and -- and

 245 5 has that been consistent with your finding at the

 245 6 company?

 245 7 A. I don't know what he is referring to here,

 245 8 he being Doug, is this Doug Ohlin?

 245 9 Q. Doug Ohlin, yes.

 245 10 A. Yeah, I don't know what he is referring

 245 11 to.

 245 12 Q. Okay. He -- he goes on to say: "The old

 245 13 guard at Aearo has always believed that the classic

 245 14 foam and the one size UltraFit were the ultimate in

 245 15 earplug protection. The lab would use every legal

 245 16 trick in the book to get the highest NRRs possible.

 245 17 They had to if they wanted to be competitive."

 245 18 Do you see that?

 245 19 A. I do.

Re: [245:3-245:19]

Def Obj Hearsay (801, 802); 

Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

DEFER RULING on remaining 

objection

245:20 - 246:5 Revised Cimino 2019-12-11

 245 20 Q. And we've already talked about with the

 245 21 Combat Arms Version 2 that the lab actually did a test

 245 22 and stopped the test after eight because it was so

 245 23 low, changed the instructions and did a new test to

 245 24 get a higher NRR.

Re: [245:20-246:5]

Def Obj Foundation (602); Relevance 

(401, 402); Prejudice (403)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

DEFER RULING on remaining 

objections

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 22 of 303
Revised Cimino 2019-12-11 22

 245 25 Remember that?

 246 1 A. So I remember reviewing the -- are you

 246 2 talking about the report?

 246 3 Q. Yeah.

 246 4 A. I can just comment what -- what it said --

 246 5 says in the report.

246:6 - 246:13 Revised Cimino 2019-12-11

 246 6 Q. Okay. And then we know that for a

 246 7 different product, also, that you were involved with,

 246 8 that you contacted Mr. Berger or the lab and you told

 246 9 the lab that you were expecting a certain NRR, that it

 246 10 needed to be equivalent or higher than the prior

 246 11 version, and that you wouldn't accept anything less

 246 12 than that.

 246 13 Do you recall that?

Re: [246:6-246:13]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

246:16 - 246:16 Revised Cimino 2019-12-11

 246 16 A. I recall the e-mail.

Re: [246:16-246:16]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

247:4 - 247:6 Revised Cimino 2019-12-11

 247 4 Q. At any rate, let me now direct you to

 247 5 Exhibit 18.

 247 6 BY MR. CARTMELL:

247:7 - 247:11 Revised Cimino 2019-12-11

 247 7 Q. Now, you saw on the prior visit -- or

 247 8 prior exhibit that Mr. Ohlin said he was frustrated

 247 9 with the lower NRR on the new Combat Arms Earplug.

 247 10 Do you remember reading that?

 247 11 A. Yes.

Re: [247:7-247:11]

Def Obj Hearsay (801, 802); 

Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

DEFER RULING on remaining 

objection

248:2 - 248:8 Revised Cimino 2019-12-11

 248 2 Q. Okay. And then this is an e-mail from

 248 3 Doug Ohlin to Doug Moses, 6/10, so about three weeks

 248 4 after that, and the topic or subject here is:

 248 5 "revised fitting" -- "fitting protocol for Combat Arms

 248 6 E" -- or "Combat Arms Earplug retest."

 248 7 Do you see that?

 248 8 A. I see that.

Re: [248:2-248:8]

Def Obj Hearsay (801, 802); 3M MIL 

No. 15; Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

OVERRULED as to 3M MIL No. 15

DEFER RULING on remaining 

objection

248:16 - 249:3 Revised Cimino 2019-12-11

 248 16 Q. Okay. Let's read this e-mail from

 248 17 Mr. Ohlin to Mr. Moses about three weeks later.

Re: [248:16-249:3]

Def Obj Hearsay (801, 802); 3M MIL 

No. 8; Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 23 of 303
Revised Cimino 2019-12-11 23

 248 18 "Doug, This situation reminds me of

 248 19 something that happened at Aearo years ago of which

 248 20 you may or may not be aware. There has always been

 248 21 intense pressure on Elliott to match the attenuation

 248 22 values the Penn State lab is able to produce. I'm not

 248 23 sure if that's what instigated this incident or not,

 248 24 but Aearo received a six figure fine from the EPA over

 248 25 some protocol issue related to an attempt to produce

 249 1 higher NRR's."

 249 2 Do you see that?

 249 3 A. I see that.

OVERRULED as to 3M MIL No. 8

DEFER RULING on remaining 

objection

249:18 - 249:24 Revised Cimino 2019-12-11

 249 18 Q. What about this, were you told by Doug

 249 19 Moses who reported directly to you that Mr. O --

 249 20 Mr. Ohlin told him that the lab that was run by

 249 21 Elliott at your company, Aearo Technologies, had been

 249 22 fined by the EPA for a protocol issue related to an

 249 23 attempt to get a higher NRR?

 249 24 A. This is news to me.

Re: [249:18-249:24]

Def Obj 3M MIL No. 8; Foundation 

(602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

OVERRULED as to 3M MIL No. 8

250:10 - 250:21 Revised Cimino 2019-12-11

 250 10 He then says: "I was appalled, not at

 250 11 Aearo, but more over the EPA focusing on the most

 250 12 professional of the hearing protection manufacturers

 250 13 while Walmart was selling hearing protectors from

 250 14 China without NRR's."

 250 15 It then states: "I'm bringing this up

 250 16 because it sounds like history repeating itself. We

 250 17 are putting pressure on Elliott to come up with a

 250 18 higher NRR for this new version of the Combat Arms

 250 19 Earplug."

 250 20 Do you see that?

 250 21 A. I see what's written there, yeah.

Re: [250:10-250:21]

Def Obj Hearsay (801, 802); 3M MIL 

No. 8; Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

OVERRULED as to 3M MIL No. 8

DEFER RULING on remaining 

objection

250:22 - 251:1 Revised Cimino 2019-12-11

 250 22 Q. Do you recall or did Mr. Moses or

 250 23 Mr. Ohlin talk to you and tell you that he was

 250 24 concerned that pressure was being put on the

 250 25 laboratory, Elliott Berger and the laboratory to come

 251 1 up with a higher NRR for the Combat Arms Earplug?

Re: [250:22-251:1]

Def Obj Compound (611, 403); 

Foundation (602)

DEFER RULING 

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 24 of 303
Revised Cimino 2019-12-11 24

251:3 - 251:3 Revised Cimino 2019-12-11

 251 3 BY THE WITNESS:

251:4 - 251:4 Revised Cimino 2019-12-11

 251 4 A. I don't have any recollection of this.

Re: [251:4-251:4]

Def Obj Compound (611, 403); 

Foundation (602)

DEFER RULING on remaining 

objection

251:17 - 251:21 Revised Cimino 2019-12-11

 251 17 He goes on to say: "We could be setting

 251 18 Aearo up for another fine. If that happens, those who

 251 19 applied the pressure will be no less responsible."

 251 20 Do you see that?

 251 21 A. I do.

Re: [251:17-251:21]

Def Obj Hearsay (801, 802); 3M MIL 

No. 8; Foundation (602)

OVERRULED as to 3M MIL No. 8

DEFER RULING on remaining 

objections

251:22 - 252:2 Revised Cimino 2019-12-11

 251 22 Q. And let me ask you, as somebody who has

 251 23 been involved in this industry for 24 years -- or

 251 24 excuse me -- 20 years.

 251 25 Do you agree that the marketing department

 252 1 should not pressure the laboratory, put pressure on

 252 2 them in -- to get the highest NRRs possible?

Re: [251:22-252:2]

Def Obj Misstates; Vague (611, 403); 

Foundation (602)

SUSTAINED

252:5 - 252:6 Revised Cimino 2019-12-11

 252 5 A. So the laboratory would have their own

 252 6 protocols in place for doing testing.

Re: [252:5-252:6]

Def Obj Misstates; Vague (611, 403); 

Foundation (602)

SUSTAINED

253:10 - 253:11 Revised Cimino 2019-12-11

 253 10 Q. You have beliefs and attitudes and

 253 11 opinions as you sit here today, don't you?

Re: [253:10-253:11]

Def Obj Compound (611, 403); 

Foundation (602)

SUSTAINED

253:14 - 253:14 Revised Cimino 2019-12-11

 253 14 A. As does everybody.

Re: [253:14-253:14]

Def Obj Compound (611, 403); 

Foundation (602)

SUSTAINED

253:16 - 253:19 Revised Cimino 2019-12-11

 253 16 Q. Right. As you walked through that door

 253 17 today and came in here for this deposition, the things

 253 18 that have happened in your life have made you develop

 253 19 beliefs and opinions about certain things, correct?

Re: [253:16-253:19]

Def Obj Compound (611, 403); 

Relevance (401, 402); Foundation (602)

SUSTAINED

253:22 - 254:8 Revised Cimino 2019-12-11

 253 22 A. Again, everybody has opinions.

 253 23 BY MR. CARTMELL:

 253 24 Q. Right. And -- and so what I want to ask

 253 25 you about, not about what protocols your lab had, I

 254 1 want to ask what Mike Cimino's beliefs and opinions

 254 2 are about this question that I'm asking right now, and

Re: [253:22-254:8]

Def Obj Compound (611, 403); 

Relevance (401, 402); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 25 of 303
Revised Cimino 2019-12-11 25

 254 3 I want the jury to hear your response.

 254 4 Do you have a belief or an opinion about

 254 5 whether it is appropriate for the marketing department

 254 6 to put pressure on the laboratory to provide the

 254 7 highest NRR. Do you have a belief and a -- or an

 254 8 opinion about that?

254:11 - 254:11 Revised Cimino 2019-12-11

 254 11 A. I don't.

Re: [254:11-254:11]

Def Obj Compound (611, 403); 

Relevance (401, 402); Foundation (602)

OVERRULED

254:12 - 254:12 Revised Cimino 2019-12-11

 254 12 BY MR. CARTMELL:

254:13 - 254:20 Revised Cimino 2019-12-11

 254 13 Q. He then states: "Bottom line - Make sure

 254 14 we aren't putting Elliott in a position where he is

 254 15 compromising the integrity of his lab. A 2 decibel

 254 16 increase in the NRR would not be worth another fine.

 254 17 You would also have the additional headache of now

 254 18 being answerable to 3M corporate."

 254 19 Do you see that?

 254 20 A. I do.

Re: [254:13-254:20]

Def Obj Hearsay (801, 802); 3M MIL 

No. 8; Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

OVERRULED as to 3M MIL No. 8

DEFER RULING on remaining 

objection

254:21 - 255:2 Revised Cimino 2019-12-11

 254 21 Q. And that's true, that if your marketing

 254 22 department, and this is during a period of time when

 254 23 you were in charge, if your marketing department was

 254 24 putting pressure on the lab to try to get them to get

 254 25 the highest NRRs for the Combat Arms Earplugs, that

 255 1 would -- that would actually compromise the integrity

 255 2 of the lab, would it not?

Re: [254:21-255:2]

Def Obj Vague; Compound (611, 403); 

Foundation (602)

OVERRULED

255:5 - 255:7 Revised Cimino 2019-12-11

 255 5 A. Again, the lab would have their own

 255 6 processes and protocols in place to do their

 255 7 evaluations and tests.

Re: [255:5-255:7]

Def Obj Vague; Compound (611, 403); 

Foundation (602)

OVERRULED

255:13 - 255:16 Revised Cimino 2019-12-11

 255 13 Do you believe that if the marketing

 255 14 department was putting pressure on the lab to get the

 255 15 highest NRRs possible, that that would compromise the

 255 16 integrity of the lab?

Re: [255:13-255:16]

Def Obj Vague (611, 403); Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 26 of 303
Revised Cimino 2019-12-11 26

255:20 - 255:20 Revised Cimino 2019-12-11

 255 20 A. I don't have an opinion on that.

Re: [255:20-255:20]

Def Obj Vague (611, 403); Foundation 

(602)

OVERRULED

256:11 - 256:15 Revised Cimino 2019-12-11

 256 11 (WHEREUPON, a certain document was

 256 12 marked Mike Cimino Deposition Exhibit

 256 13 No. 19, for identification, as of

 256 14 12/11/2019.)

 256 15 BY MR. CARTMELL:

256:16 - 257:4 Revised Cimino 2019-12-11

 256 16 Q. And I say that you were involved, because

 256 17 I want to hand you an exhibit, Exhibit 19, Page 1436.

 256 18 Exhibit 19, sir, is an e-mail string that

 256 19 came from the company files in this litigation, and I

 256 20 want to actually start at the bottom of the page,

 256 21 because that's how e-mails go chronologically.

 256 22 The bottom e-mail is from you on May 29th,

 256 23 2009. And take a look, sir, that date, May 29th,

 256 24 2009. That is, I think, the exact same day, maybe a

 256 25 day or two within the e-mail from Mr. Ohlin to Doug

 257 1 Moses that talked about the legal tricks and talked

 257 2 about Mr. Ohlin's frustration with the low NRR for the

 257 3 Combat Arms Earplug.

 257 4 Isn't that right?

Re: [256:16-257:4]

Def Obj Compound; Misstates (611, 

403); Hearsay (801, 802); Foundation 

(602)

DEFER RULING

257:7 - 257:7 Revised Cimino 2019-12-11

 257 7 A. I see the date stamps, yep.

Re: [257:7-257:7]

Def Obj Compound; Misstates (611, 

403); Hearsay (801, 802); Foundation 

(602)

DEFER RULING

258:10 - 258:16 Revised Cimino 2019-12-11

 258 10 Q. And here is your e-mail, these are your

 258 11 words:

 258 12 "Doug, did you find the spec and advise

 258 13 Jeff we won't be launch" -- "launching with the lower

 258 14 NRR product? MC."

 258 15 Do you see that?

 258 16 A. I do.

Re: [258:10-258:16]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

258:17 - 258:19 Revised Cimino 2019-12-11

 258 17 Q. That's what you told Mr. Moses one day

Re: [258:17-258:19]

Def Obj Misstates; Vague (611, 403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 27 of 303
Revised Cimino 2019-12-11 27

 258 18 after Mr. Ohlin was talking about the low NRR with the

 258 19 Combat Arms, correct?

258:22 - 258:22 Revised Cimino 2019-12-11

 258 22 A. I can only comment on what's on here.

Re: [258:22-258:22]

Def Obj Misstates; Vague (611, 403); 

Foundation (602)

OVERRULED

260:8 - 260:14 Revised Cimino 2019-12-11

 260 8 A. I don't recall what the spec was.

 260 9 Q. And then Doug Moses responds to you and

 260 10 says: "No...conversation evolved. I think we will be

 260 11 retesting with the new fitting criteria. I'll keep

 260 12 you posted."

 260 13 You see that?

 260 14 A. I do.

Re: [260:8-260:14]

Def Obj Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

260:15 - 260:17 Revised Cimino 2019-12-11

 260 15 Q. Okay. So you were asking Doug Moses to

 260 16 put pressure on Jeff Hamer to tell them there would be

 260 17 no launch of that product with a low NRR, correct?

Re: [260:15-260:17]

Def Obj Vague; Misstates (611, 403); 

Foundation (602)

OVERRULED

260:20 - 260:20 Revised Cimino 2019-12-11

 260 20 A. No, I can't say that that's what I say.

Re: [260:20-260:20]

Def Obj Vague; Misstates (611, 403); 

Foundation (602)

OVERRULED

266:22 - 267:4 Revised Cimino 2019-12-11

 266 22 Q. Okay. Let's go back to Exhibit 8.

 266 23 We talked about this earlier, but

 266 24 Mr. Ohlin mentioned that pressure was often put on the

 266 25 lab and that can cause EPA fines and compromise the

 267 1 integrity. This is an e-mail with you that we talked

 267 2 about previously where you told the lab that you would

 267 3 not accept an NRR that wasn't at least an equivalent

 267 4 NRR as the current version of this product, correct?

Re: [266:22-267:4]

Def Obj Compound; Misstates (611, 

403); Hearsay (801, 802); Foundation 

(602)

DEFER RULING

267:8 - 267:10 Revised Cimino 2019-12-11

 267 8 A. So just like my e-mail says on there, my

 267 9 request was that the worst case scenario the new ones

 267 10 you have there come out with an equivalent NRR value.

Re: [267:8-267:10]

Def Obj Compound; Misstates (611, 

403); Hearsay (801, 802); Foundation 

(602)

DEFER RULING

267:17 - 267:19 Revised Cimino 2019-12-11

 267 17 But you're -- you're putting pressure on

 267 18 the lab, aren't you, sir, to get a certain NRR before

 267 19 the test is even done, aren't you?

Re: [267:17-267:19]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 28 of 303
Revised Cimino 2019-12-11 28

267:23 - 267:24 Revised Cimino 2019-12-11

 267 23 A. No. I'm just requesting an equivalent

 267 24 NRR.

Re: [267:23-267:24]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

271:10 - 272:14 Revised Cimino 2019-12-11

 271 10 Q. Okay. And then if you go to Exhibit 20,

 271 11 this is the follow-up e-mail to that.

 271 12 Exhibit 20 is an e-mail dated

 271 13 January 19th, 2004, from Elliott Berger to you. And,

 271 14 in fact, he does call you or contact you by I guess

 271 15 e-mail to inform you that he is in that test and he

 271 16 has completed nine subjects on the product.

 271 17 Do you see that?

 271 18 A. Yep.

 271 19 Q. What is that product that we are talking

 271 20 about, the PowerCom data -- or, excuse me, the

 271 21 PowerCom product?

 271 22 A. That would have been a communication

 271 23 headset product.

 271 24 Q. Okay. A hearing protective device with

 271 25 communication, electronic?

 272 1 A. Correct.

 272 2 Q. Okay. So he calls you during the test and

 272 3 he says: "Right now the NRRs are 25 and 25.2."

 272 4 You had asked for a 26, right?

 272 5 A. Was it 8?

 272 6 Q. Yes, sir.

 272 7 A. My e-mail would say that, yes.

 272 8 Q. Okay. He says: "It is very unlikely that

 272 9 the tenth subject will get the 26 you wanted."

 272 10 And then you respond to him, and you say:

 272 11 "Okay. Keep going if you can get me a 25 NRR. It is

 272 12 the bare minimum I can accept."

 272 13 Do you see that?

 272 14 A. I do.

Re: [271:10-272:14]

Def Obj Relevance (401, 402); 3M MIL 

No. 18; Foundation (602)

FOUNDATION OBJECTION 

WITHDRAWN, 3/12/2021

REMAINING OBJECTIONS 

OVERRULED

272:15 - 272:19 Revised Cimino 2019-12-11

 272 15 Q. So marketing is telling the laboratory,

 272 16 Look, you can keep doing your test, laboratory, for

 272 17 this NRR, but I need a 25, if you can't get me a 25, I

Re: [272:15-272:19]

Def Obj Relevance (401, 402); 3M MIL 

No. 18; Misstates; Compound (611, 

403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 29 of 303
Revised Cimino 2019-12-11 29

 272 18 can't accept it, because the bare minimum is 25.

 272 19 That's what you are saying, right?

272:22 - 273:24 Revised Cimino 2019-12-11

 272 22 A. I'm saying that target -- I'm saying keep

 272 23 going if they could get me a 25 NRR.

 272 24 BY MR. CARTMELL:

 272 25 Q. Aren't you trying to influence the results

 273 1 of the testing on your product?

 273 2 MR. ELLIS: Object to the form of the question;

 273 3 argumentative.

 273 4 BY THE WITNESS:

 273 5 A. No.

 273 6 BY MR. CARTMELL:

 273 7 Q. Then why even contact them, why not let

 273 8 them do their test and give you the results? Why do

 273 9 you have to contact them, sir, and tell them what you

 273 10 need from a marketing perspective or what you desire

 273 11 and that you can't accept anything lower than that?

 273 12 MR. ELLIS: Object to the form of the question.

 273 13 BY THE WITNESS:

 273 14 A. So I don't recall the context of all of

 273 15 the discussions with this, but that was the discussion

 273 16 as -- as laid out here.

 273 17 BY MR. CARTMELL:

 273 18 Q. My point is, why even call the lab and try

 273 19 to influence their results or tell them you can't

 273 20 accept certain NRRs, why not let the lab do the tests

 273 21 on the hearing protective device, give you what they

 273 22 come out with, the unbiased results, and you live with

 273 23 it. Why do you have to contact them and try to

 273 24 pressure them?

274:3 - 274:5 Revised Cimino 2019-12-11

 274 3 A. Again, I don't remember the context of –

 274 4 of this particular discussion, but that is the

 274 5 discussion that was had.

Re: [272:22-273:23]

Def Obj Relevance (401, 402); 3M MIL 

No. 18; Misstates; Compound (611, 

403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 30 of 303
Knauer, Richard

Updated 3/3/2021

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 31 of 303
Knauer, Richard 2

Designation Objection Rulings

8:6 - 8:10 Knauer, Richard

 8 6 BY MR. MONSOUR:

 8 7 Q. Good morning.

 8 8 A. Good morning.

 8 9 Q. What's your name?

 8 10 A. Richard Knauer.

8:18 - 8:24 Knauer, Richard

 8 18 Q. Okay. What do you do for a living?

 8 19 A. I am retired.

 8 20 Q. Okay. How long have you been retired?

 8 21 A. I have been retired since 2006.

 8 22 Q. Okay. And who did you work for when you

 8 23 retired?

 8 24 A. I worked for Aearo.

9:10 - 10:1 Knauer, Richard

 9 10 Q. Okay. Did you ever work for 3M?

 9 11 A. I -- after I retired from Aearo in -- in

 9 12 2006, I went back to work for Aearo at that time as a

 9 13 consultant and continued to work for Aearo for about

 9 14 three, three-and-a-half years, and I believe in that

 9 15 period of time -- definitely in that period of time 3M

 9 16 purchased Aearo, yes.

 9 17 Q. Okay. So you retired from working full

 9 18 time in 2006.

 9 19 Could you tell me exactly when in 2006?

 9 20 A. It was April 30th, 2006.

 9 21 Q. Okay. And then how long did you work as a

 9 22 consultant?

 9 23 A. I worked two different stints as a

 9 24 consultant. The original time I worked from 2006 to,

 9 25 I believe 2009, possibly a little bit in 2010. I

 10 1 don't have all -- I don't remember all of the details.

12:1 - 12:8 Knauer, Richard

 12 1 Q. When you retired, what was your title?

 12 2 A. Technical director.

 12 3 Q. And you have a Bachelor of Science degree,

 12 4 correct?

 12 5 A. I have a Bachelor of Science, a major in

Re: [12:1-12:8]

Pltf Obj Improper Counter Designation 

per PTO 64

SUSTAINED as to [12:3-12:8]

OVERRULED, in all other respects.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 32 of 303
Knauer, Richard 3

 12 6 math, minor in chemistry.

 12 7 Q. Okay. And then you have an MBA, too?

 12 8 A. I have an MBA, yes.

12:19 - 13:3 Knauer, Richard

 12 19 Q. And how did you end up with Aearo?

 12 20 A. I worked after college, I worked for a

 12 21 company called Owens-Illinois in the metal closure

 12 22 division and materials development issues, or

 12 23 materials development. I worked for them in Toledo,

 12 24 Ohio and Glassboro, New Jersey for several years, I

 12 25 think roughly 10 or 11 years. I was looking for a

 13 1 growth opportunity, saw it in Aearo, which at that

 13 2 time was called E-A-R, and joined that company in

 13 3 1979.

Re: [12:19-13:3]

Pltf Obj Improper Counter Designation 

per PTO 64

SUSTAINED

13:4 - 13:8 Knauer, Richard

 13 4 Q. So you worked full time for Aearo or

 13 5 various versions of it from 1979 to 2006?

 13 6 A. That's correct.

 13 7 Q. Did you like the company?

 13 8 A. Yes.

Re: [13:4-13:8]

Pltf Obj Improper Counter Designation 

per PTO 64

SUSTAINED

13:9 - 13:13 Knauer, Richard

 13 9 Q. What was your work relationship, and I'm

 13 10 talking about hierarchy, with Elliott Berger?

 13 11 Were you his supervisor?

 13 12 A. At times -- yes, many times I was his

 13 13 supervisor.

13:18 - 14:1 Knauer, Richard

 13 18 Q. And then there is a man by the name of, I

 13 19 think, Ron Kieper?

 13 20 A. Yes.

 13 21 Q. Were you his supervisor as well?

 13 22 A. Elliott Berger was his supervisor.

 13 23 Q. Okay. So Kieper reported to Berger,

 13 24 Berger reported to you?

 13 25 A. At -- certainly at the end of the -- at --

 14 1 at one point, yes.

14:25 - 15:2 Knauer, Richard

 14 25 Q. Okay. This is Knauer Exhibit 1. Here you

Re: [14:25-15:2]

Pltf Obj Improper Counter Designation 

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 33 of 303
Knauer, Richard 4

 15 1 go, sir.

 15 2 A. Okay.

per PTO 64; D's are designating ex 1-

Knauer's resume 

15:13 - 16:14 Knauer, Richard

 15 13 Q. It says: "Dick is the Senior Technical

 15 14 Director For Passive Hearing Protection for Aearo

 15 15 Company, with the overall responsibility for

 15 16 development of new passive hearing products, has

 15 17 worked for the company for 26 years in a variety of

 15 18 technical areas related to development, evaluation,

 15 19 and testing of hearing protection and noise control

 15 20 products."

 15 21 Did I get that right?

 15 22 A. Yes.

 15 23 Q. "Dick has a BS from the University of

 15 24 Toledo and an MBA from the University of Indiana. He

 15 25 holds several patents, including one for the

 16 1 technology used to manufacture the SuperFit style of

 16 2 multi-layered foam earplug."

 16 3 Did I get that right?

 16 4 A. That is correct.

 16 5 Q. "With the exception of the Classic foam

 16 6 earplug, Dick has worked on and/or overseen

 16 7 development of nearly all passive hearing protection

 16 8 products that are currently sold by Aearo. He is a

 16 9 member of The Society of Plastics Engineers and a

 16 10 former member and officer (vice president) of the

 16 11 Hearing Protection Committee of the International

 16 12 Safety Equipment Association."

 16 13 Did I get that right?

 16 14 A. Yes.

Re: [15:13-16:14]

Pltf Obj Improper Counter Designation 

per PTO 64; D's are designating ex 1-

Knauer's resume 

16:18 - 16:21 Knauer, Richard

 16 18 Q. And this is about a year before you

 16 19 retired, if we look at this front page, it says May

 16 20 of 2005, correct?

 16 21 A. Yes.

Re: [16:18-16:21]

Pltf Obj Improper Counter Designation 

per PTO 64; D's are designating ex 1-

Knauer's resume 

SUSTAINED

18:2 - 18:13 Knauer, Richard

 18 2 Q. What was your role in the development of

 18 3 the Combat Arms Version 2 earplug?

 18 4 A. My role was simply as the manager of -- of

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 34 of 303
Knauer, Richard 5

 18 5 the -- of the direct -- excuse me -- the director of

 18 6 the group to report -- report to management progress

 18 7 of the project and those type of things. Elliott

 18 8 Berger was the project manager. I took an active part

 18 9 in many different projects other than this one, but

 18 10 this particular one Elliott Berger was the project

 18 11 manager and led all of the development efforts. I

 18 12 just reported on it, attended meetings and that type

 18 13 of thing.

18:14 - 18:25 Knauer, Richard

 18 14 Q. What do you think of the Combat Arms

 18 15 Version 2 earplug?

 18 16 A. It is a good product. It -- I -- we heard

 18 17 many, many comments back about how -- lives it saved

 18 18 and that type of thing, as I remember.

 18 19 Q. Did you ever hear any criticisms of the

 18 20 product?

 18 21 A. I don't remember any criticisms. It would

 18 22 not be unusual, any project that's developed, you are

 18 23 going to get an occasional criticism. So it's

 18 24 possible that there were criticisms. I don't remember

 18 25 any, but it's possible there were criticisms.

Re: [18:14-18:25]

Pltf Obj Improper Counter Designation 

per PTO 64; 402

OVERRULED

19:9 - 19:18 Knauer, Richard

 19 9 Q. Do you consider Elliott Berger to be the

 19 10 primary inventor of the Combat Arms Version 2 plug?

 19 11 MR. WASDIN: Objection to form.

 19 12 BY THE WITNESS:

 19 13 A. The product -- the concept was Elliott

 19 14 Berger was the project manager for development of the

 19 15 thing -- of the concept. The product was developed

 19 16 through working with the military and taking feedback

 19 17 back and forth from the military about what they

 19 18 wanted in the product.

Re: [19:9-19:18]

Pltf Obj Improper Counter Designation 

per PTO 64; 402; nonresponsive 

SUSTAINED

25:21 - 26:3 Knauer, Richard

 25 21 Q. Okay. Is Elliott good at his job?

 25 22 A. Yes.

 25 23 Q. Is Elliott a competent, capable person?

 25 24 A. Yes.

 25 25 Q. Is he smart?

Re: [25:21-26:3]

Pltf Obj Improper Counter Designation 

per PTO 64; 402

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 35 of 303
Knauer, Richard 6

 26 1 A. Yes.

 26 2 Q. Does he pay attention to detail?

 26 3 A. Yes, he pays attention to detail.

35:17 - 35:22 Knauer, Richard

 35 17 Let me hand you what I'm going to mark as

 35 18 Exhibit 5.

 35 19 (WHEREUPON, a certain document was

 35 20 marked Dick Knauer Deposition Exhibit

 35 21 No. 5, for identification, as of

 35 22 12/17/2019.)

35:24 - 36:7 Knauer, Richard

 35 24 Q. Exhibit 5, your name is not on Exhibit 5,

 35 25 but I want you to read through it.

 36 1 It is an e-mail from Elliott Berger to Ron

 36 2 Kieper, dated January 23rd of 2009. And if you'll

 36 3 look it over real quick, I'll ask you a few questions

 36 4 on it.

 36 5 A. Okay. Well, I will have to look it over

 36 6 because...

 36 7 Okay. I've read it.

38:11 - 38:14 Knauer, Richard

 38 11 Q. Were you aware on the Combat Arms

 38 12 Version 2 that testing on the yellow end had shown

 38 13 NRRs of 0, 0 and 5?

 38 14 A. Oh, I do not remember that, no, sir.

Re: [38:11-38:14]

Def Obj Foundation (602)

OVERRULED

38:15 - 38:21 Knauer, Richard

 38 15 Q. Okay. Let me ask you this: If a product

 38 16 gets NRRs of 0 and 0 and then 5, what should the NRR

 38 17 rating be for that product?

 38 18 A. Typically our procedure was to always

 38 19 report the lowest NRR obtained.

 38 20 Q. The lowest NRR?

 38 21 A. Yes.

43:17 - 44:1 Knauer, Richard

 43 17 So knowing that and knowing that customers

 43 18 of products, of hearing products, probably aren't as

 43 19 familiar with interpreting testing on hearing

 43 20 protection devices, would it be improper for a product

 43 21 that has a 0 NRR for the manufacturer to imply that

Re: [43:17-44:1]

Def Obj Vague, Argumentative (403), 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 36 of 303
Knauer, Richard 7

 43 22 that 0 NRR means no effect on audibility?

 43 23 Would that be improper?

 43 24 MR. WASDIN: Objection; form, foundation.

 43 25 BY THE WITNESS:

 44 1 A. I don't know what you mean by improper.

44:2 - 44:2 Knauer, Richard

 44 2 BY MR. MONSOUR:

44:3 - 44:20 Knauer, Richard

 44 3 Q. Okay. So -- so what -- what if -- what if

 44 4 the company said that the 0 NRR allowed people to hear

 44 5 without impairment, would that be improper?

 44 6 MR. WASDIN: Objection; form, foundation.

 44 7 BY THE WITNESS:

 44 8 A. I would certainly prefer the -- a

 44 9 statement other than that, but that would be a

 44 10 statement that would be certainly a slight

 44 11 exaggeration, I could call it a slight exaggeration.

 44 12 BY MR. MONSOUR:

 44 13 Q. Right. If somebody had a product that had

 44 14 0 NRR and they said, Ah, you can hear clearly with

 44 15 this, that would also be deceptive, true?

 44 16 MR. WASDIN: Objection; form, foundation.

 44 17 BY THE WITNESS:

 44 18 A. I would not call it deceptive. I would

 44 19 call it maybe exaggeration. I would not write it --

 44 20 as a scientist, I would not write it that way.

Re: [44:3-44:20]

Def Obj Relevance (401, 402); Vague, 

Argumentative (403), Foundation (602)

OVERRULED

47:15 - 47:17 Knauer, Richard

 47 15 The term "no effect on audibility," you

 47 16 would never use that with a 0 NRR, true?

 47 17 A. I'm sorry. Where -- where is the comment?

Re: [47:15-47:17]

Def Obj Relevance (401, 402)

DESIGNATION WITHDRAWN, 

3/13/2021

50:23 - 51:14 Knauer, Richard

 50 23 Q. Is there a way when you are testing people

 50 24 for an NRR that -- are there ways to kind of game the

 50 25 system or manipulate the system to alter what the NRR

 51 1 results are?

 51 2 A. To game the system, I don't understand

 51 3 what you mean.

 51 4 Q. Are there ways that you can -- you can, I

 51 5 guess, massage the data to get a better NRR?

Re: [50:23-51:14]

Def Obj Vague (403), Relevance (401, 

402), Prejudice (403), Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 37 of 303
Knauer, Richard 8

 51 6 A. If there are ways to do it, we would not

 51 7 do that.

 51 8 Q. Are there ways to do it?

 51 9 A. There -- there might -- there might be

 51 10 ways to do it, but we wouldn't do it.

 51 11 Q. What are some of the ways that there might

 51 12 be that you could do it?

 51 13 A. I'm not even sure. I never thought about

 51 14 massaging data, so...

51:15 - 52:2 Knauer, Richard

 51 15 Q. Could -- is one of the ways you could do

 51 16 it, could you hand select certain people to be tested

 51 17 that you know from past experience get certain

 51 18 results?

 51 19 Is that one way?

 51 20 A. Certainly if certain individuals get

 51 21 better results on products, for whatever reason, and

 51 22 showed consistency in results, the ability to hand

 51 23 select subjects could increase your chances of having

 51 24 a higher NRR.

 51 25 Q. So that would be one way that if a company

 52 1 wanted to massage the data, they could, I guess,

 52 2 cherry pick the people they test, true?

Re: [51:15-52:2]

Def Obj 3M MIL No. 23, Relevance 

(401, 402), Prejudice (403)

OVERRULED

52:5 - 52:8 Knauer, Richard

 52 5 A. I -- I -- again, I wouldn't -- I mean,

 52 6 when you say -- when you call it "massage the data,"

 52 7 you -- you could pick subjects that are more -- get

 52 8 more consistent results.

Re: [52:5-52:8]

Def Obj 3M MIL No. 23, Relevance 

(401, 402), Prejudice (403)

OVERRULED

52:24 - 53:4 Knauer, Richard

 52 24 Q. Mr. Knauer, I wanted to ask you, were you

 52 25 ever involved in the testing of earplugs and -- as the

 53 1 tests were going on, the REAT testing?

 53 2 A. When you say "involved," I'm just trying

 53 3 to understand your question.

 53 4 Q. Sure.

Re: [52:24-53:4]

Def Obj Vague (403)

OVERRULED

53:5 - 54:8 Knauer, Richard

 53 5 A lot of times in these REAT test -- REAT,

 53 6 I'll call it REAT?

 53 7 A. Yes.

Re: [53:5-54:8]

Def Obj 3M MIL No. 18, Relevance 

(401, 402), Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 38 of 303
Knauer, Richard 9

 53 8 Q. Tests, they would test, let's say, ten

 53 9 people, correct?

 53 10 A. If -- if you were doing an official REAT

 53 11 test, you test ten people, that's correct.

 53 12 Q. Okay. And would you ever get updates on

 53 13 how the testing was going before they got to ten

 53 14 people?

 53 15 A. Yes, sometimes I got updates, yes.

 53 16 Q. And why would you be given updates prior

 53 17 to the completion of ten people?

 53 18 A. Trying to understand what -- what the data

 53 19 was looking at -- like through X number of subjects,

 53 20 whatever number of subjects it was.

 53 21 Q. Did you all ever stop the testing before

 53 22 you got to ten because you didn't like what the NRR

 53 23 was looking like?

 53 24 A. We did on sometimes stop the testing if

 53 25 there was a -- if the project goal was to hit a

 54 1 certain number and we were not going to be close to it

 54 2 and it was apparent that we were not going to get

 54 3 there with doing ten people, there was lit -- nothing

 54 4 to be gained, nothing to be learned by continuing, so

 54 5 sometimes we did stop, yes.

 54 6 Q. Now, why is ten the magic number? Why --

 54 7 once you got to ten, did it trigger some sort of a --

 54 8 a duty by the company?

54:6 - 54:8 Knauer, Richard

 54 6 Q. Now, why is ten the magic number? Why --

 54 7 once you got to ten, did it trigger some sort of a --

 54 8 a duty by the company?

Re: [54:6-54:8]

Def Obj 3M MIL No. 18, Relevance 

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

(602); Vague (611, 402)

OVERRULED

54:11 - 54:21 Knauer, Richard

 54 11 A. No. Ten -- ten is -- ten is what's called

 54 12 for in the ANSI standard, I believe, or the EPA

 54 13 regulation, one of them, so ten -- ten is the official

 54 14 test, but it just we -- we just took a look at the

 54 15 data and saw what the data was saying.

 54 16 BY MR. MONSOUR:

 54 17 Q. But -- but I guess if you did complete the

 54 18 test and you did ten people and the results were not

Re: [54:11-54:21]

Def Obj 3M MIL No. 18, Relevance 

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

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 39 of 303
Knauer, Richard 10

 54 19 what you had hoped for, is there a duty on the company

 54 20 to still report the testing since ten people were

 54 21 completed?

54:17 - 55:1 Knauer, Richard

 54 17 Q. But -- but I guess if you did complete the

 54 18 test and you did ten people and the results were not

 54 19 what you had hoped for, is there a duty on the company

 54 20 to still report the testing since ten people were

 54 21 completed?

 54 22 MR. WASDIN: Objection to foundation.

 54 23 BY THE WITNESS:

 54 24 A. If the product -- if -- if ten people were

 54 25 tested and you came out with that product, then the

 55 1 duty would be to report that data.

Re: [54:17-55:1]

Def Obj Foundation (602)

OVERRULED

55:3 - 55:4 Knauer, Richard

 55 3 Q. Okay. But if only eight people were

 55 4 tested, there is no duty to report it?

Re: [55:3-55:4]

Pltf Obj Improper Counter Designation 

per PTO 64

OVERRULED

55:7 - 55:20 Knauer, Richard

 55 7 A. When you say "duty to report," if we stop

 55 8 testing for any reason, our process would be to go in

 55 9 and evaluate why -- evaluate, the best we can, why we

 55 10 were not hitting our goal, and that could be any

 55 11 number of reasons. A lot of my experience is in foam,

 55 12 so the foam is too soft, the foam is too hard,

 55 13 whatever, the recovery is too fast, the recovery is

 55 14 too slow. We would go in and evaluate what was the

 55 15 difficulty and identify the difficulty and correct the

 55 16 difficulty if we could, and then create a new --

 55 17 basically start again. It would be a new product. It

 55 18 would be something different because we would go in

 55 19 and make a change to the product or the instructions

 55 20 or whatever.

Re: [55:7-55:20]

Pltf Obj Improper Counter Designation 

per PTO 64; nonresponsive

OVERRULED

55:22 - 56:3 Knauer, Richard

 55 22 Q. Okay. Let me ask you this, sir. Let's

 55 23 say you've got a product and you're doing NRR REAT

 55 24 testing on the product and after eight people it looks

 55 25 like you are not going to get the NRR you want.

 56 1 Is it okay to stop the testing and then

Re: [55:22-56:3]

Def Obj 3M MIL No. 18, Relevance 

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

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 40 of 303
Knauer, Richard 11

 56 2 just bring in a new panel and start the testing again?

 56 3 A. No, we would not do that.

56:4 - 56:25 Knauer, Richard

 56 4 Q. Okay. Why would you not do that?

 56 5 A. Because that's -- that's -- we wouldn't do

 56 6 that. That wasn't our policy, not to do that. Our --

 56 7 our policy is if we stopped after any number of

 56 8 subjects and tried to see would be -- determine why we

 56 9 are not hitting -- going to hit our goal.

 56 10 Q. Okay. Is it true, sir, that to have a new

 56 11 test started, you had to somehow change the product

 56 12 and then you could test it again?

 56 13 A. We would have to change something. In

 56 14 some instances it would be to change the product, or

 56 15 if we found it was an instruction problem, a user

 56 16 instructions, we could change the instructions. It

 56 17 would have to be some significant change, we would --

 56 18 but we would evaluate it.

 56 19 That's, again, the scientific process,

 56 20 going through, seeing -- get -- doing a test, seeing

 56 21 what you see, go back, learn from that, make a change,

 56 22 whatever that change might be. And that's an

 56 23 iterative process, it may be five steps, in some

 56 24 instances it may be one step. It just depended upon

 56 25 the product.

Re: [56:4-56:25]

Pltf Obj 56:4-55:9 is proper 

clarification; 56:10-25 is improper per 

PTO 64

OVERRULED

63:3 - 63:23 Knauer, Richard

 63 3 Let me hand you what has been marked as

 63 4 Exhibit 7.

 63 5 (WHEREUPON, a certain document was

 63 6 marked Dick Knauer Deposition Exhibit

 63 7 No. 7, for identification, as of

 63 8 12/17/2019.)

 63 9 BY MR. MONSOUR:

 63 10 Q. I don't know if you've seen this before.

 63 11 Exhibit 7, do you know who a man by the

 63 12 name of Michael McLain is?

 63 13 A. Michael McLain, yes, I know who Michael

 63 14 McLain is.

 63 15 Q. And who is he?

Re: [63:3-63:23]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 41 of 303
Knauer, Richard 12

 63 16 A. At -- at -- at that time he was president

 63 17 of the company.

 63 18 Q. Okay. If you will look, this is a letter

 63 19 from Michael McLain dated November 27, 2002, and this

 63 20 is a letter that is referencing Aearo's position

 63 21 regarding NRR testing.

 63 22 Do you see that?

 63 23 A. Yes.

64:13 - 64:14 Knauer, Richard

 64 13 Q. Was it important to your company that the

 64 14 advertising not to be misleading in any way?

Re: [64:13-64:14]

Def Obj Vague (403), Relevance (401, 

402), Prejudice (403)

OVERRULED

64:19 - 64:19 Knauer, Richard

 64 19 A. Of course it's important.

Re: [64:19-64:19]

Def Obj Vague (403), Relevance (401, 

402), Prejudice (403)

OVERRULED

64:20 - 64:20 Knauer, Richard

 64 20 BY MR. MONSOUR:

64:21 - 64:25 Knauer, Richard

 64 21 Q. You would never want to say that a product

 64 22 like the yellow end of the Combat Arms Earplug

 64 23 provided protection without impairment, you would

 64 24 never want to say that because that's not true,

 64 25 correct?

Re: [64:21-64:25]

Def Obj Relevance (401, 402), 

Prejudice (403), Foundation (602)

OVERRULED

65:3 - 65:4 Knauer, Richard

 65 3 A. I would -- I would prefer that it -- it

 65 4 say something in a little more general sense.

Re: [65:3-65:4]

Def Obj Vague (403), Relevance (401, 

402), Prejudice (403), Foundation (602)

OVERRULED

66:9 - 66:12 Knauer, Richard

 66 9 Q. Right. But if the company were to say

 66 10 that the yellow end of the plug allowed its users to

 66 11 hear without impairment, that would be misleading,

 66 12 true?

Re: [66:9-66:12]

Def Obj Relevance (401, 402), 

Prejudice (403), Foundation (602)

OVERRULED

66:16 - 66:18 Knauer, Richard

 66 16 A. It -- it is. "Without impairment" is

 66 17 probably not scientifically absolutely correct. There

 66 18 is minor impairment.

Re: [66:16-66:18]

Def Obj Relevance (401, 402), 

Prejudice (403), Foundation (602)

OVERRULED

67:20 - 68:21 Knauer, Richard

 67 20 "Aearo supports that new products rated

 67 21 above the designated ceiling must receive that rating

 67 22 based on testing with an outside testing laboratory."

 67 23 Did I get that right?

Re: [67:20-68:21]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 42 of 303
Knauer, Richard 13

 67 24 A. Yes.

 67 25 Q. Okay.

 68 1 "It goes without saying that Aearo

 68 2 supports that multiple testing attempts with the same

 68 3 product are not allowed because this is prohibited by

 68 4 the EPA."

 68 5 Did I get that right?

 68 6 A. Yes.

 68 7 Q. That's the question that I was asking you

 68 8 earlier. Do you remember that?

 68 9 A. Yes.

 68 10 Q. It goes on: "Further, when multiple tests

 68 11 are conducted, we must all agree and have EPA approval

 68 12 for the proper NRR labeling protocol."

 68 13 Did I get that right?

 68 14 A. Yes.

 68 15 Q. So let's go back and let's look at the

 68 16 second sentence in No. 3.

 68 17 "It goes without saying that Aearo

 68 18 supports that multiple testing attempts with the same

 68 19 product are not allowed because this is prohibited by

 68 20 the EPA."

 68 21 What does that mean?

68:24 - 69:3 Knauer, Richard

 68 24 A. What does that mean, I don't know what

 68 25 that means. I mean it -- I don't know what it means.

 69 1 BY MR. MONSOUR:

 69 2 Q. Does it mean that you can't just keep

 69 3 retesting a product to get the NRR you want?

Re: [68:24-69:3]

Def Obj Foundation (602)

OVERRULED

69:6 - 69:15 Knauer, Richard

 69 6 A. It means that you cannot just keep

 69 7 testing -- without making a change, without doing some

 69 8 modification, be it to the product, the design,

 69 9 formulation, instructions, whatever, something that

 69 10 affects how the plug is fitted into the ear, I -- I

 69 11 say plug, how the plug is fitted into the ear. You

 69 12 cannot just go in and test until you get the NRR that

 69 13 you desire.

Re: [69:6-69:15]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 43 of 303
Knauer, Richard 14

 69 14 BY MR. MONSOUR:

 69 15 Q. Okay. Why is that important?

69:24 - 70:1 Knauer, Richard

 69 24 A. It's -- it's -- it's just a -- it -- you

 69 25 would -- just because it -- you need to -- you need to

 70 1 do a test and get the results that you get.

Re: [69:24-70:1]

Def Obj Foundation (602)

OVERRULED

70:15 - 71:1 Knauer, Richard

 70 15 Q. Okay. Because it's true that if a company

 70 16 wanted to massage the data, if they didn't get the NRR

 70 17 that they liked the first time, they could bring a

 70 18 different group in to test that had certain

 70 19 characteristics and maybe improve the NRRs, true?

 70 20 MR. WASDIN: Objection to form.

 70 21 BY THE WITNESS:

 70 22 A. If -- if you are asking could -- if you

 70 23 did not get the NRR you desired, could you hand pick

 70 24 subjects and then just test those subjects and get a

 70 25 higher NRR, that is -- that is within the range of

 71 1 possibilities, I guess.

Re: [70:15-71:1]

Def Obj Argumentative, Vague (403), 

Prejudice (403), Foundation (602)

OVERRULED

75:2 - 76:1 Knauer, Richard

 75 2 Q. Let me hand you Exhibit No. 9, sir.

 75 3 A. Okay.

 75 4 Q. And what I would like for you to do is

 75 5 look at --

 75 6 MR. WASDIN: Is there a copy for me?

 75 7 MS. KROTTINGER: Yes. Sorry.

 75 8 BY MR. MONSOUR:

 75 9 Q. This is an e-mail dated April 9, 1999, and

 75 10 it is from Doug Ohlin to Doug Ohlin. It says:

 75 11 "Letter for Combat Arms earplug." And immediately

 75 12 below that there is an e-mail from Brian Myers to Doug

 75 13 Ohlin.

 75 14 Do you see that?

 75 15 A. Yes, I see that.

 75 16 Q. And it says, they are talking about --

 75 17 they are talking about the Combat Arms Version 2

 75 18 earplug, correct?

 75 19 A. Yes, it look -- it appears that way, yes,

 75 20 sir.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 44 of 303
Knauer, Richard 15

 75 21 Q. And it says in the second paragraph, it

 75 22 says: "I spoke with Dick Knauer who believes that we

 75 23 can probably shorten the plug by 1/4" required to fit

 75 24 your current container."

 75 25 Did I read that correctly?

 76 1 A. Yes.

76:2 - 76:21 Knauer, Richard

 76 2 Q. Do you remember speaking with Brian Myers

 76 3 about shortening the Combat Arms Earplug Version 2 by

 76 4 a quarter of an inch?

 76 5 A. I have a memory that we did -- that I --

 76 6 that we were asked to shorten the plug, yes.

 76 7 Q. Okay. Good.

 76 8 How did it come up, do you remember?

 76 9 A. It came up, to the best of my memory, that

 76 10 when we provided samples to the military where the

 76 11 plug was longer, provided a -- I don't know how many

 76 12 samples, but we provided samples, and it may have been

 76 13 multiple samples multiple times, they did an

 76 14 evaluation of the product, and may have taken weeks,

 76 15 it may have taken months, I don't remember, but they

 76 16 came back with the evaluation and said, We like things

 76 17 about the product but we would like it a quarter inch

 76 18 shorter.

 76 19 Q. Okay. What went into the decision-making

 76 20 process of whether or not the original length of the

 76 21 plug could be shortened by a quarter of an inch?

76:24 - 77:6 Knauer, Richard

 76 24 A. What -- what went into the decision-making

 76 25 process, I don't understand your question.

 77 1 BY MR. MONSOUR:

 77 2 Q. It probably was an inartful question.

 77 3 What I'm trying to find out is, is what

 77 4 did you have to look at to determine whether or not

 77 5 the plug could be shortened by a quarter of an inch?

 77 6 A. Okay.

77:7 - 77:23 Knauer, Richard

 77 7 Q. I'm -- I'm assuming that you came up or

 77 8 someone came up with the original length for some

Re: [77:7-77:23]

Def Obj Relevance (401, 402); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 45 of 303
Knauer, Richard 16

 77 9 reason, you didn't just pick it out of the air, and

 77 10 then I'm assuming that there was a reason for the

 77 11 original length and then I'm assuming that somebody

 77 12 had to look at something to determine whether or not a

 77 13 quarter inch could have been taken off of it?

 77 14 A. There -- there was a -- to answer your

 77 15 question then, there was a -- because of the

 77 16 manufacturing process of how that plug was

 77 17 manufactured, there was a concern about our ability to

 77 18 make a plug, if -- if you shorten the plug by a

 77 19 quarter of an inch, you basically then have no -- the

 77 20 stem is as -- ends at where the black flange ended as

 77 21 I remember, and trying to do that in -- in

 77 22 manufacturing, there were some manufacturing issues

 77 23 with that.

77:24 - 78:3 Knauer, Richard

 77 24 Q. Okay. So the -- the decision whether or

 77 25 not the plug could be shortened by a quarter of an

 78 1 inch didn't necessarily have to do with the

 78 2 performance of the plug, it had more to do with

 78 3 production of the plug, am I close?

Re: [77:24-78:3]

Def Obj Misstates (403), Prejudice 

(403)

OVERRULED

78:6 - 78:13 Knauer, Richard

 78 6 A. The -- the issue had to be with our

 78 7 capability to -- to manufacture a plug that had a --

 78 8 you know, that quarter inch taken off, yes.

 78 9 BY MR. MONSOUR:

 78 10 Q. Okay. So the thought process in whether

 78 11 or not the plug could be shortened a quarter inch, the

 78 12 thought process wasn't on would the plug perform, it

 78 13 was, can our machines make the plug?

Re: [78:6-78:13]

Def Obj Misstates (403), Prejudice 

(403)

OVERRULED

78:16 - 78:22 Knauer, Richard

 78 16 A. The -- the question at this time was could

 78 17 we do that, and we could basically -- so we had to

 78 18 investigate whether we could do that. So the way we

 78 19 would do that would be to, at minimum, we could cut

 78 20 the end off, make some samples and send them to the

 78 21 Army and let them evaluate it and tell us what -- how

 78 22 the performance was.

Re: [78:16-78:22]

Def Obj Misstates (403), Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 46 of 303
Knauer, Richard 17

78:23 - 79:11 Knauer, Richard

 78 23 BY MR. MONSOUR:

 78 24 Q. Right. But I'm getting at -- it says: "I

 78 25 spoke with Dick Knauer who believes we can probably

 79 1 shorten the plug by the 1/4" required to fit your

 79 2 current container."

 79 3 When you made the decision that -- that

 79 4 the plug could be shortened by a quarter of an inch,

 79 5 were you looking at the capabilities of the plug or

 79 6 were you looking at the manufacturing process

 79 7 necessary to create the plug?

 79 8 A. We were looking at -- I -- I was

 79 9 specifically -- or Bob Falco was specifically looking

 79 10 at the capability of being able to manufacture a

 79 11 shorter plug.

79:12 - 80:16 Knauer, Richard

 79 12 Q. Okay.

 79 13 A. However, we then wanted to provide that

 79 14 plug to the Army and let them evaluate it and tell us

 79 15 whether it works, because we were depending upon their

 79 16 feedback, did this solve your problem, is it working,

 79 17 and that type of thing.

 79 18 Q. Okay. How was the original length of the

 79 19 Combat Arms Version 2 plug arrived at?

 79 20 A. I do not remember how that was arrived at.

 79 21 Q. Was it your decision or would it have been

 79 22 Berger's decision or would it have been Falco's

 79 23 decision or would it have been somebody else?

 79 24 A. I do not remember how that was decided.

 79 25 Q. Okay. Do you consider yourself one of the

 80 1 designers of the Combat Arms Version 2 earplug?

 80 2 A. No.

 80 3 Q. Who do you consider to be the designer of

 80 4 the Combat Arms Version 2 earplug?

 80 5 A. When you -- when you say designed, what do

 80 6 you mean, design?

 80 7 Q. I don't know any other word.

 80 8 A. Certainly we provided samples, we provided

 80 9 a variety of samples to the military. Originally, if

Re: [79:12-80:16]

Pltf Obj Improper Counter Designation 

per PTO 64; nonresponsive

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 47 of 303
Knauer, Richard 18

 80 10 I remember correctly, and this is if I remember

 80 11 correctly, the first product we showed them was a

 80 12 single-ended UltraFit long stem, the normal length of

 80 13 the stem of the UltraFit, with a filter in it, provide

 80 14 the samples, got feedback. So it was an iterative

 80 15 process back and forth, to answer your question the

 80 16 best I can.

80:17 - 80:21 Knauer, Richard

 80 17 Q. Who was the one, though, that came up with

 80 18 the -- the let's take two UltraFits, put them on two

 80 19 ends, we'll put a piece of plastic in the middle and

 80 20 we'll put a filter in there, who is the one that --

 80 21 who is the one that came up with that design?

Re: [80:17-80:21]

Pltf Obj Improper Counter Designation 

per PTO 64

OVERRULED

80:24 - 81:17 Knauer, Richard

 80 24 A. When you asked who came up with the

 80 25 design, the feedback we got from the military after

 81 1 providing them with a single-ended stem, single-ended

 81 2 product, was we liked the concept, we would like

 81 3 something -- Doug Ohlin specifically, but it was the

 81 4 military in general, we -- we like the concept, but we

 81 5 would like it to have a double-ended plug to it.

 81 6 BY MR. MONSOUR:

 81 7 Q. Right. And so if Doug Ohlin says, We

 81 8 would like to have a double-ended to it, that product

 81 9 doesn't just appear, somebody has to literally design

 81 10 the product so you can make it, right?

 81 11 A. Basically, when he asked for that, we then

 81 12 went in and made up samples, however we made them up,

 81 13 and sent them to Doug, and it could have been two or

 81 14 three, I don't remember.

 81 15 Q. Okay.

 81 16 A. We sent samples to him, he said this is --

 81 17 this is good, this is bad, whatever.

Re: [80:24-81:17]

Pltf Obj Improper Counter Designation 

per PTO 64

OVERRULED

81:24 - 82:3 Knauer, Richard

 81 24 Q. Yeah. Yeah. Who -- who came up with the

 81 25 idea of how to put the -- the -- come up with this --

 82 1 if the military said we wanted a two-sided document,

 82 2 who is the one that came up with the design for the

 82 3 two sides?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 48 of 303
Knauer, Richard 19

82:6 - 82:17 Knauer, Richard

 82 6 A. To the best of my memory, what we did was

 82 7 we took the -- because we had the UltraFit tips, we

 82 8 took them and cut them down to certain lengths, put a

 82 9 filter in the adapter and put them together and sent

 82 10 them and said, Doug, is this what you want, is this

 82 11 not what you want, that type of thing.

 82 12 Q. So who did that, was it you?

 82 13 A. No, it was not me.

 82 14 Q. Okay.

 82 15 A. The most likely person that had did -- had

 82 16 made the actual samples was Bob Falco, the design

 82 17 engineer.

83:10 - 83:15 Knauer, Richard

 83 10 Q. Okay. But for the simple premise, you --

 83 11 you understand that -- that triple flange plugs do

 83 12 come in more than one size, right?

 83 13 A. They can come in more than one size, yes.

 83 14 Q. Okay. How did the company arrive at this

 83 15 size for the Version 2 Combat Arms?

83:18 - 84:25 Knauer, Richard

 83 18 A. How did they determine that that size for

 83 19 the Combat Arms?

 83 20 BY MR. MONSOUR:

 83 21 Q. Uh-huh.

 83 22 A. The company basically made the UltraFit

 83 23 earplug and -- and did since I believe the early --

 83 24 excuse me -- mid '80s.

 83 25 Q. Okay.

 84 1 A. They came out -- came out with the

 84 2 UltraFit earplug, and field experience, feedback from

 84 3 end users, indicated that that product, the UltraFit,

 84 4 fit almost everyone, no -- no product fits everybody.

 84 5 There are people that have very small ear canals, very

 84 6 large ear canals. That product fit the vast majority

 84 7 of the population. So the design was a good design to

 84 8 fit a lot of people, the vast majority of the

 84 9 population.

 84 10 Q. Okay. So is this -- the UltraFit was a

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 49 of 303
Knauer, Richard 20

 84 11 one-size product, correct?

 84 12 A. The UltraFit was a one-size product with a

 84 13 longer stem, yes.

 84 14 Q. Okay. Is the Version 2 the exact same

 84 15 size as the UltraFit?

 84 16 A. To the best of my memory, the UltraFit --

 84 17 the -- excuse me. Let me -- let me take a step back.

 84 18 To the best of my memory, the Combat

 84 19 Arms 2 version uses the same size flanges, of course

 84 20 the stem is shorter, but the flanges are the same as

 84 21 they were in the UltraFit, to the best of my memory.

 84 22 Q. Okay. So literally you took the existing

 84 23 UltraFits that you had, you kind of stuck them

 84 24 together with the piece of plastic and that's the

 84 25 Version 2, and you added a filter?

85:3 - 85:5 Knauer, Richard

 85 3 A. We -- we -- we took those -- those items

 85 4 and that eventually became the Combat Arms product,

 85 5 yes.

87:9 - 87:23 Knauer, Richard

 87 9 Q. Okay. Let me hand you what I'll mark as

 87 10 Exhibit 10.

 87 11 (WHEREUPON, a certain document was

 87 12 marked Dick Knauer Deposition Exhibit

 87 13 No. 10, for identification, as of

 87 14 12/17/2019.)

 87 15 BY MR. MONSOUR:

 87 16 Q. This is Exhibit 10. It is entitled How

 87 17 Folding the Flanges Back Affects REAT Results of the

 87 18 UltraFit Earplug End of the Combat Arms Plug.

 87 19 Do you see that?

 87 20 A. Yes, I see that.

 87 21 Q. And it is dated July 10th of 2000.

 87 22 Do you see that?

 87 23 A. Yes, I see that.

Re: [87:9-87:23]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

87:24 - 88:3 Knauer, Richard

 87 24 Q. Have you ever seen this document before

 87 25 today?

 88 1 A. Back to my original comment, I -- when I

Re: [87:24-88:3]

Pltf Obj no objection 

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 50 of 303
Knauer, Richard 21

 88 2 was employed at Aearo and 3M, I do not remember seeing

 88 3 this document.

90:3 - 90:22 Knauer, Richard

 90 3 Q. And the document states under the

 90 4 Introduction, it says: "The Combat Arms Earplug was

 90 5 shortened, at the request of the Army, so that it

 90 6 would fit into a carrying case. Because of this, the

 90 7 plug is shorter than any other UltraFit Plug design.

 90 8 The purpose of this report is to document that the

 90 9 current length of the UltraFit earplug end of the

 90 10 Combat Arms plug is too short for proper insertion and

 90 11 how changing the fitting technique affected the

 90 12 results of real-ear tests of this plug."

 90 13 Did I get that right?

 90 14 A. Yes, you read that correctly.

 90 15 Q. Do you agree with the statement that the

 90 16 current length of the UltraFit earplug end of the

 90 17 Combat Arms plug is too short for proper insertion?

 90 18 Do you agree with that statement?

 90 19 MR. WASDIN: Objection to foundation.

 90 20 BY THE WITNESS:

 90 21 A. I agree with that, without changing the

 90 22 fitting instructions.

Re: [90:3-90:22]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

90:24 - 91:8 Knauer, Richard

 90 24 Q. Okay. So without changing the fitting

 90 25 instructions, the plug is too short for proper

 91 1 insertion, you do agree with that?

 91 2 MR. WASDIN: Objection to foundation.

 91 3 BY THE WITNESS:

 91 4 A. That was the comment that was made in this

 91 5 report.

 91 6 BY MR. MONSOUR:

 91 7 Q. Okay.

 91 8 A. So it was written by someone else.

Re: [90:24-91:8]

Pltf Obj no objection, but for 

completeness should add 91:9-14 

LINES 91:9-14 MUST BE ADDED 

FOR COMPLETENESS

95:6 - 95:13 Knauer, Richard

 95 6 Q. Okay. Would it be concerning if you're

 95 7 testing a Combat Arms Version 2 plug and you've got

 95 8 the UltraFit that you used to make the Version 2 plug,

 95 9 correct?

Re: [95:6-95:13]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 51 of 303
Knauer, Richard 22

 95 10 A. Correct.

 95 11 Q. If you know the UltraFit typically is

 95 12 getting you a 21 NRR, is it concerning when testing of

 95 13 the Version 2 shows a 10.9 NRR?

95:16 - 95:18 Knauer, Richard

 95 16 A. The -- if you saw results like that, you

 95 17 would believe that something -- you needed to go in

 95 18 and try to figure out what's happening.

Re: [95:16-95:18]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

98:7 - 99:1 Knauer, Richard

 98 7 Q. Do you consider imperceptible loosening of

 98 8 a plug to be a problem?

 98 9 MR. WASDIN: Objection to form.

 98 10 BY THE WITNESS:

 98 11 A. I don't know what imperceptible -- I'm

 98 12 sorry -- I don't know what that terminology means.

 98 13 That was Mr. Kieper's or -- and/or Mr. Berger term.

 98 14 I -- I'm not sure what imperceptible means.

 98 15 Q. You -- you do not know what imperceptible

 98 16 means?

 98 17 A. I -- well, I know what imperceptible

 98 18 means. I don't know what they meant by this.

 98 19 Q. Do you know what the term "loosened"

 98 20 means?

 98 21 A. Loosened, yes.

 98 22 Q. Okay. So if a plug is -- if you know what

 98 23 imperceptible means and you know what loosened means

 98 24 and you know what an ear -- you know what an earplug

 98 25 is, correct?

 99 1 A. That is correct.

Re: [98:7-99:1]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

99:2 - 99:8 Knauer, Richard

 99 2 Q. If an earplug imperceptibly loosens, would

 99 3 that be a problem with the plug?

 99 4 MR. WASDIN: Objection to form.

 99 5 BY THE WITNESS:

 99 6 A. If a earplug loosened, there is certainly

 99 7 something that is going on and you need to understand

 99 8 what is going on.

Re: [99:2-99:8]

Def Obj Vague (403, 611); Foundation 

(602), Relevance (401, 402), Prejudice 

(403)

SUSTAINED AS TO 

“imperceptibly.”

OVERRULED in all other respects.

102:22 - 103:14 Knauer, Richard

 102 22 Q. What -- what material are these flanges

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 52 of 303
Knauer, Richard 23

 102 23 made out of?

 102 24 A. It's a thermoplastic elastomer.

 102 25 Q. Do you know why the plastic piece in the

 103 1 middle, and I'm looking at it right here, I'm folding

 103 2 back both flanges, if we could look.

 103 3 Do you know why this -- do you see the

 103 4 piece I'm pointing to?

 103 5 A. Yes, yes.

 103 6 Q. The -- the -- the white piece?

 103 7 A. Um-hum.

 103 8 Q. How did you all determine how hard that --

 103 9 that white piece of plastic should be?

 103 10 A. I have no memory at all what -- how that

 103 11 was decided.

 103 12 Q. Was there any testing that was done to

 103 13 determine how hard that should be?

 103 14 A. I have no memory of that. I'm sorry.

103:15 - 103:24 Knauer, Richard

 103 15 Q. Are there -- are there other options for

 103 16 the -- the white piece in the middle? Could -- could

 103 17 your company have made a -- the plastic piece more

 103 18 pliable?

 103 19 MR. WASDIN: Objection to form and foundation.

 103 20 BY THE WITNESS:

 103 21 A. I -- we -- I have no i- -- I mean, could

 103 22 it have been made more, possibly, by why we made it

 103 23 that, I don't know, we made it that and provided

 103 24 samples and we are happy with it.

Re: [103:15-103:24]

Def Obj Foundation (602)

OVERRULED

105:11 - 105:18 Knauer, Richard

 105 11 Q. If you had been asked whether or not you

 105 12 could share the test data from Test 213015 with the

 105 13 government, would you have said sure, why not?

 105 14 A. Yes, I would have shared it.

 105 15 Q. Can you think of any reason why the test

 105 16 data from 213015 shouldn't have been shared with the

 105 17 government?

 105 18 A. No, I can think of no reason.

Re: [105:11-105:18]

Def Obj Speculation, Foundation (602), 

Relevance (401, 402), Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 53 of 303
Knauer, Richard 24

105:19 - 105:25 Knauer, Richard

 105 19 Q. Again, one of the things that we look from

 105 20 an earlier page is the fact that Mr. Kieper is noting

 105 21 that there is imperceptible loosening, correct?

 105 22 A. Mr. Kieper noted that, yes.

 105 23 Q. The fact that there is imperceptible

 105 24 loosening with the plug, that's important, true?

 105 25 A. Cor- --

Re: [105:19-105:25]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

106:2 - 106:8 Knauer, Richard

 106 2 BY THE WITNESS:

 106 3 A. Certainly he made that observation, so

 106 4 it's important information.

 106 5 BY MR. MONSOUR:

 106 6 Q. Since it's important information that he

 106 7 observed, is that the type of information that should

 106 8 have been shared with the government?

Re: [106:2-106:8]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

106:10 - 106:18 Knauer, Richard

 106 10 BY THE WITNESS:

 106 11 A. I don't know what was shared or could have

 106 12 been shared. I don't know what was done.

 106 13 BY MR. MONSOUR:

 106 14 Q. It -- that's not my question.

 106 15 My question was: Should it have been

 106 16 shared --

 106 17 A. It --

 106 18 Q. -- with the government?

Re: [106:10-106:18]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

106:20 - 107:8 Knauer, Richard

 106 20 BY THE WITNESS:

 106 21 A. It -- it was -- that -- that would be a --

 106 22 a call that an Elliott Berger would make.

 106 23 BY MR. MONSOUR:

 106 24 Q. Okay. If this flange report had been

 106 25 shared with you, would you have shared the fact that

 107 1 there was imperceptible loosening with the government?

 107 2 A. It wasn't shared with me, as -- as I -- as

 107 3 I remembered.

 107 4 Q. But my point is: Had it been shared with

 107 5 you and if you were the government contact or the

 107 6 person that had contact with the government, would you

Re: [106:20-107:8]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 54 of 303
Knauer, Richard 25

 107 7 have shared the imper- -- imperceptible loosening fact

 107 8 with the government?

107:11 - 107:15 Knauer, Richard

 107 11 A. If I'm asked if I would share, I would --

 107 12 I believe in transparency in providing information.

 107 13 BY MR. MONSOUR:

 107 14 Q. Okay. You would never have hidden the

 107 15 fact that there was imperceptible loosening, true?

Re: [107:11-107:15]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

DESIGNATION WITHDRAWN 

[107:14-15], 3/13/2021

SUSTAINED as to [107:11-13]

107:18 - 107:23 Knauer, Richard

 107 18 A. I -- I don't know whether the information

 107 19 was hidden. I would -- I don't hide information.

 107 20 BY MR. MONSOUR:

 107 21 Q. Okay. But listen to my question.

 107 22 You would never have hidden the fact that

 107 23 there was imperceptible loosening, true?

Re: [107:18-107:23]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

DESIGNATION WITHDRAWN, 

3/13/2021

108:1 - 108:9 Knauer, Richard

 108 1 A. I -- you are asking if I -- I'm sorry.

 108 2 Ask the question again.

 108 3 BY MR. MONSOUR:

 108 4 Q. Assuming you were aware of this, assuming

 108 5 you were aware of Exhibit 10, the flange report, had

 108 6 you been made aware of this in July of 2000 and had

 108 7 you been the person that was in contact with the

 108 8 government, you would have shared the fact of

 108 9 imperceptible loosening with the government, true?

Re: [108:1-108:9]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

DESIGNATION WITHDRAWN, 

3/13/2021

108:13 - 108:20 Knauer, Richard

 108 13 A. I would have tried to understand what

 108 14 Mr. Kieper was saying by saying that and then based on

 108 15 that decide -- decide if it's pertinent information to

 108 16 share or not.

 108 17 BY MR. MONSOUR:

 108 18 Q. You and I have already talked and you

 108 19 agreed with me that imperceptible loosening was

 108 20 important, true?

Re: [108:13-108:20]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

DESIGNATION WITHDRAWN, 

3/13/2021

108:23 - 109:18 Knauer, Richard

 108 23 A. We -- we -- we talked and we've talked

 108 24 about imp- -- you know, imp- -- we talked about

 108 25 imperceptibly loosening as being a factor that is

 109 1 important, yes.

Re: [108:23-109:18]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 55 of 303
Knauer, Richard 26

 109 2 Q. Okay. And you know who the end users are

 109 3 of these earplugs, the Combat Arms Earplugs Version 2,

 109 4 correct?

 109 5 A. Yes.

 109 6 Q. They are our soldiers, correct?

 109 7 A. Absolutely, yes.

 109 8 Q. A pretty worthy group of people to have

 109 9 information shared with on their behalf, true?

 109 10 A. Obviously, the soldiers are somebody that

 109 11 deserve all of the benefit, everything that we can

 109 12 tell them, yes.

 109 13 Q. Sure.

 109 14 So knowing that they are a very deserving

 109 15 group and knowing that imperceptible loosening is

 109 16 important, had you been made aware of imperceptible

 109 17 loosening in 2000, you would have shared that with the

 109 18 government, true?

109:14 - 109:25 Knauer, Richard

 109 14 So knowing that they are a very deserving

 109 15 group and knowing that imperceptible loosening is

 109 16 important, had you been made aware of imperceptible

 109 17 loosening in 2000, you would have shared that with the

 109 18 government, true?

 109 19 MR. WASDIN: Objection to form.

 109 20 BY THE WITNESS:

 109 21 A. Again, I would need to understand what

 109 22 the -- what he meant by imperceptibly loosening,

 109 23 depending upon what he meant, then, yes, we'll share

 109 24 it, absolutely if it is something -- if it is a real

 109 25 observation.

Re: [109:14-109:25]

Def Obj Argumentative, Vague (403, 

611); Relevance (401, 402)

SUSTAINED

109:21 - 109:25 Knauer, Richard

 109 21 A. Again, I would need to understand what

 109 22 the -- what he meant by imperceptibly loosening,

 109 23 depending upon what he meant, then, yes, we'll share

 109 24 it, absolutely if it is something -- if it is a real

 109 25 observation.

Re: [109:21-109:25]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

SUSTAINED

110:24 - 111:13 Knauer, Richard

 110 24 Q. Do you know why -- since Kieper reported

 110 25 to Berger and Berger reported to you, why would this

Re: [110:24-111:13]

Pltf Obj Improper Counter Designation 

per PTO 64; 402

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 56 of 303
Knauer, Richard 27

 111 1 have not been shared with you?

 111 2 A. I do not know why this was not shared with

 111 3 me.

 111 4 Q. Does it concern you that it was not shared

 111 5 with you?

 111 6 A. No.

 111 7 Q. Are you disappointed in Elliott Berger

 111 8 that he didn't share this with you?

 111 9 A. No.

 111 10 Q. Why not?

 111 11 A. Because Elliott Berger is a very thorough

 111 12 individual and will look at everything and I trust his

 111 13 judgment.

114:14 - 115:5 Knauer, Richard

 114 14 Q. Let me hand you what I've marked as

 114 15 Exhibit 11. It is a very short e-mail. And it is an

 114 16 e-mail from Elliott Berger to Brian Myers.

 114 17 And it says: "Here are the data on the

 114 18 UltraFit end of the Combat Arms. Note the original

 114 19 study was stopped with eight subjects. The second

 114 20 study was with the folded-back flanges on the end

 114 21 sticking out of the ear. Should I share this with

 114 22 Ohlin? It looks like the existing product has

 114 23 problems unless the user instructions are revised."

 114 24 Do you see that?

 114 25 A. Yes, I see that.

 115 1 Q. Did I read it correctly?

 115 2 A. Yes.

 115 3 Q. Why would Elliott Berger be talking with

 115 4 Brian Myers about whether important data from the

 115 5 Combat Arms earplugs should be shared with Doug Ohlin?

Re: [114:14-115:5]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

115:8 - 115:9 Knauer, Richard

 115 8 A. Again, I don't know. I -- I have no -- I

 115 9 don't know why he sent that e-mail.

Re: [115:8-115:9]

Def Obj Foundation (602), Relevance 

(401, 402), Prejudice (403)

OVERRULED

182:5 - 182:11 Knauer, Richard

 182 5 Q. So -- so one thing we know is that the ARC

 182 6 is a quality control for acoustic resistance.

 182 7 Now, did you have an understanding that,

 182 8 for the Combat Arms plugs that contained the -- the

Re: [182:5-182:11]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 57 of 303
Knauer, Richard 28

 182 9 French filter in the yellow end, right?

 182 10 A. Yes, it contained a filter in the yellow

 182 11 end, yeah.

182:12 - 183:3 Knauer, Richard

 182 12 Q. Okay. So did you have an understanding

 182 13 that the Combat Arms plugs that contained that French

 182 14 filter, that to make sure that you are getting to get

 182 15 the impulse noise reduction from that filter the way

 182 16 it is manufactured and put together, that you need to

 182 17 test -- test the acoustic resistance to make sure it

 182 18 is within certain levels?

 182 19 MR. WASDIN: Objection to form and foundation.

 182 20 BY THE WITNESS:

 182 21 A. My understanding for what that test did is

 182 22 that it measured the acoustic resistance and that

 182 23 Elliott Berger had done some work to -- Elliott Berger

 182 24 and Ron Kieper and poss- -- very possibly others had

 182 25 done some work to determine what that range of

 183 1 acoustic resistance needed to be in order to -- for

 183 2 the filter to be performing in a way it's designed to

 183 3 be -- designed.

Re: [182:12-183:3]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403), Vague 

(403)

OVERRULED

183:4 - 184:5 Knauer, Richard

 183 4 BY MR. OVERHOLTZ:

 183 5 Q. Okay. And it was your understanding

 183 6 that -- that that test -- that -- that work that had

 183 7 been done with acoustic resistance, that it a- -- that

 183 8 it was done to make sure that the filter was going to

 183 9 limit impulse noise?

 183 10 MR. WASDIN: Objection to form; foundation.

 183 11 BY MR. OVERHOLTZ:

 183 12 Q. That's why you do this test?

 183 13 A. The test was to measure the acoustic

 183 14 resistance and based on Elliott Berger's, and possibly

 183 15 other people's testing, a range was identified of

 183 16 acoustic resistance that the filter was performing in

 183 17 the range that it was supposed to be performing.

 183 18 Q. All right. So what -- so based on your

 183 19 testimony, what you are looking for is -- is the

 183 20 acoustic resistance within an acceptable range?

Re: [183:4-184:5]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 58 of 303
Knauer, Richard 29

 183 21 A. It was -- it was within an acceptable

 183 22 range.

 183 23 Q. Okay. And you are trying to make sure

 183 24 that this filter side of the plug is going to work

 183 25 right and stop the impulse noise, right?

 184 1 MR. WASDIN: Object to form.

 184 2 BY THE WITNESS:

 184 3 A. The objective was to demonstrate that the

 184 4 filter was in there and doing what the testing had

 184 5 said it should do.

186:13 - 186:21 Knauer, Richard

 186 13 Q. Okay. So let me ask that again and then I

 186 14 think -- that was because that was going to be my next

 186 15 question. My next one was in my head.

 186 16 Is -- Gary Warren wrote on January 5th and

 186 17 said: "Dick: how do we test the effectiveness of

 186 18 Combat Arms to ensure that it in fact blocks out

 186 19 impact noise levels?"

 186 20 Do you see that?

 186 21 A. Yes, I see that.

Re: [186:13-186:21]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

DESIGNATION WITHDRAWN

[186:13-186:15], 3/13/2021

OVERRULED as to [186:16-21]

187:13 - 188:15 Knauer, Richard

 187 13 So you respond and say: "We have

 187 14 developed a test fixture that measures acoustical

 187 15 impedance," and then you go on.

 187 16 Do you see that?

 187 17 A. Yes.

 187 18 Q. "When the product was developed, the

 187 19 Combat Arms were tested at a firing range: for those

 187 20 that provided acceptable performance for blocking out

 187 21 the appropriate amount of impact noise, it was

 187 22 determined that those plugs had a particular

 187 23 acoustical impedance."

 187 24 Do you see that?

 187 25 A. Yes.

 188 1 Q. Is that the work that Elliott Berger, you

 188 2 were talking about, had done?

 188 3 A. On the test device, yes.

 188 4 Q. Yeah, okay.

 188 5 "A range of acceptable acoustical

Re: [187:13-188:15]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 59 of 303
Knauer, Richard 30

 188 6 impedance was developed thereafter."

 188 7 Do you see that?

 188 8 A. Yes.

 188 9 Q. So that was the range that we were talking

 188 10 about before, right?

 188 11 A. Yes.

 188 12 Q. Okay. "Currently when the product is

 188 13 assembled, the testing is done on 100% of the plugs."

 188 14 Do you see that?

 188 15 A. Yes.

188:16 - 188:17 Knauer, Richard

 188 16 Q. Now, why do you do the testing on

 188 17 100 percent of the plugs?

Re: [188:16-188:17]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

OVERRULED

188:20 - 189:3 Knauer, Richard

 188 20 A. We -- I mean, you asked why we do it on

 188 21 100 percent of the plugs?

 188 22 BY MR. OVERHOLTZ:

 188 23 Q. Yes.

 188 24 A. When we set up this product, had various

 188 25 discussions obviously, I had various discussions, and

 189 1 because of the importance of the test, we made a

 189 2 decision, and I'm not sure who all made it, but we

 189 3 made a decision to test 100 percent of the plugs.

Re: [188:20-189:3]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

OVERRULED

192:9 - 192:12 Knauer, Richard

 192 9 Q. Was the quality control testing done in

 192 10 Mexico as well?

 192 11 A. There was a quality control testing done

 192 12 in Mexico, yes.

Re: [192:9-192:12]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

OVERRULED

193:5 - 195:6 Knauer, Richard

 193 5 Q. 22, which is DK-15, MDL434795.

 193 6 So if you'll take a look at this

 193 7 Exhibit 22, Mr. Knauer, it's another one of the

 193 8 Elliott Berger monthly reports, this one dated

 193 9 February 28th, 2003, February Monthly Report.

 193 10 A. Yeah.

 193 11 Q. Do you see that?

 193 12 A. Yes, I see that.

 193 13 Q. And there's a couple of different

 193 14 sections, Hercules Project and then below that,

Re: [193:5-195:6]

Def Obj 3M MIL No. 26, Relevance 

(401, 402), Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 60 of 303
Knauer, Richard 31

 193 15 Project-Related Research and Development and Support.

 193 16 Do you see that?

 193 17 A. Yes.

 193 18 Q. Okay. It said: "Hosted Mead" -- "Mead

 193 19 Killion."

 193 20 Do you see that?

 193 21 A. Yes.

 193 22 Q. He was one of the head guys over at

 193 23 Etymotic Research, is that right?

 193 24 A. He was the head guy at Etymotic Research,

 193 25 yes.

 194 1 Q. Okay. The next sentence says -- okay, and

 194 2 just to be clear, this monthly report that Berger

 194 3 sent, he sent it to you, right, at the top of the

 194 4 page?

 194 5 A. Yes.

 194 6 Q. Okay. And the next sentence says: "RWK,"

 194 7 that would be referring to Ron Kieper?

 194 8 A. That's correct.

 194 9 Q. Okay. "Ron Kieper assisted Gordon Grogan

 194 10 and spoke with Bob Zielinski about the problems with

 194 11 the Combat Arms Plug in Mexico."

 194 12 Do you see that?

 194 13 A. Yes.

 194 14 Q. "He recommended that one of the ARCs be

 194 15 sent to Indianapolis so the 100 plugs can be measured

 194 16 in the lab, to help determine why Mexico's

 194 17 measurements had an 80% reject rate."

 194 18 Did I read that right?

 194 19 A. Yes.

 194 20 Q. Okay. And the ARCs, again, is talking

 194 21 about the same thing that we were talking about before

 194 22 on the screen, this quality control device, right?

 194 23 A. Yes.

 194 24 Q. Okay. And you told me Zielinski's job was

 194 25 in operations, is that right?

 195 1 A. His job was in operations, yes.

 195 2 Q. Okay. And how about Gordon Grogan?

 195 3 A. He was a quality control guy and...

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 61 of 303
Knauer, Richard 32

 195 4 Q. Okay. And so -- do you remember the

 195 5 80 percent failure they were getting down in Mexico?

 195 6 A. No, I don't remember that.

195:7 - 196:21 Knauer, Richard

 195 7 Q. Okay. Let's -- let's take a look at what

 195 8 we'll mark as Exhibit 23, which is DK-46.

 195 9 (WHEREUPON, a certain document was

 195 10 marked Dick Knauer Deposition Exhibit

 195 11 No. 23, for identification, as of

 195 12 12/17/2019.)

 195 13 BY MR. OVERHOLTZ:

 195 14 Q. So if we can take a look at this document,

 195 15 it's titled "Mexico Visit, Bob Zielinski

 195 16 Responsibilities," right?

 195 17 A. Yes.

 195 18 Q. And the first section is called Issues.

 195 19 And it says: "There have been problems

 195 20 with test equipment procedures not being followed at

 195 21 TJR."

 195 22 Do you see that?

 195 23 A. Yes.

 195 24 Q. TJR, is that the Mexican company?

 195 25 A. Yes.

 196 1 Q. Okay. Do you remember what that stood

 196 2 for?

 196 3 A. No.

 196 4 Q. The machine -- do you know where -- did I

 196 5 ask you this before, do you know where it was in

 196 6 Mexico?

 196 7 A. I -- it was in the middle of nowhere in

 196 8 Mexico from my best understanding.

 196 9 Q. Okay.

 196 10 The next sentence says: "The machines

 196 11 were due for calibration in May of 03 as stipulated in

 196 12 the specified Operating procedure, but even a year

 196 13 later were not calibrated."

 196 14 Do you see that?

 196 15 A. Yes.

 196 16 Q. That was talking about the ARC quality

Re: [195:7-196:21]

Def Obj 3M MIL No. 26, Relevance 

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

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 62 of 303
Knauer, Richard 33

 196 17 control testing equipment in Mexico, right?

 196 18 MR. WASDIN: Objection to foundation.

 196 19 BY THE WITNESS:

 196 20 A. That was talking about the equipment that

 196 21 was used, the -- the ARC equipment.

196:22 - 198:15 Knauer, Richard

 196 22 BY MR. OVERHOLTZ:

 196 23 Q. Because what we looked at before in that

 196 24 monthly report was Ron Kieper was recommending we send

 196 25 another ARC down to Mexico to see what's going on,

 197 1 right?

 197 2 A. I would --

 197 3 MR. WASDIN: Objection to form.

 197 4 BY THE WITNESS:

 197 5 A. I would have to go back and look to see.

 197 6 BY MR. OVERHOLTZ:

 197 7 Q. Sure.

 197 8 Yeah, he said: "RWK assisted Gordon

 197 9 Grogan and spoke with Bob Zielinski about the problems

 197 10 with the plug in Mexico. He recommended that one of

 197 11 the ARCs be sent to Indianapolis so the 100 plugs

 197 12 could be measured in the lab to help determine why

 197 13 Mexico's measurements had a 80% reject rate."

 197 14 Right?

 197 15 A. Yeah, he recommended that the device be

 197 16 sent to Indianapolis --

 197 17 Q. Right.

 197 18 A. -- so we could look at it, yes.

 197 19 Q. So send the ARC from Mexico up to

 197 20 Indianapolis and let's see what's happening?

 197 21 A. That's what it sounds like was he was

 197 22 asking for.

 197 23 Q. Okay.

 197 24 Issue No. 2. "It was requested in May 04

 197 25 to rectify the calibration issue but it has taken

 198 1 approximately six months for TJR to get all of the

 198 2 machines out for calibration. Operating procedures

 198 3 not followed."

 198 4 Do you see that?

Re: [196:22-198:15]

Def Obj 3M MIL No. 26, Relevance 

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

(602)

DESIGNATION WITHDRAWN

[198:11 – 198:15], 3/13/2021

OVERRULED as to [196:22-198:10]

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 63 of 303
Knauer, Richard 34

 198 5 A. Yes.

 198 6 Q. "Because of equipment measurement

 198 7 problems, TJR had to operate with a quality waiver for

 198 8 several months."

 198 9 Do you see that?

 198 10 A. Yes.

 198 11 Q. What's a quality waiver?

 198 12 MR. WASDIN: Objection to foundation.

 198 13 BY THE WITNESS:

 198 14 A. I don't know what that particular quality

 198 15 waiver was.

201:8 - 202:22 Knauer, Richard

 201 8 Q. And then -- and then finally, No. 4: "Bob

 201 9 Z to evaluate and set up a rotational plan to assure

 201 10 equipment is calibrated on a rotating basis to assure

 201 11 at least two of the three current test devices are

 201 12 operational and get the third device recalibrated

 201 13 and/or repaired."

 201 14 Do you see that?

 201 15 A. Yes.

 201 16 Q. Okay. Now it says R&D Position.

 201 17 Do you see that?

 201 18 A. Yes.

 201 19 Q. "It took over six months for TJR to get

 201 20 their quality testing in place for the Combat Arms

 201 21 product."

 201 22 Do you see that?

 201 23 A. Yes.

 201 24 Q. "Now we have more quality testing

 201 25 problems. We need to take this opportunity to fix the

 202 1 equipment, ensure people are properly trained and

 202 2 procedures are being followed."

 202 3 Right?

 202 4 A. Yes.

 202 5 Q. "A joint visit by Bob and Ron to make a

 202 6 big improvement in our quality testing is needed."

 202 7 That's what's written there, right?

 202 8 A. Yes.

 202 9 Q. The next page: "We believe this issue is

Re: [201:8-202:22]

Def Obj 3M MIL No. 26, Relevance 

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

(602)

DESIGNATION WITHDRAWN

[201:8-201:15], 3/13/2021

OVERRULED as to 201:16-202:22

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 64 of 303
Knauer, Richard 35

 202 10 not an acute problem, but rather a chronic that needs

 202 11 to be fixed now."

 202 12 Right?

 202 13 A. Yes.

 202 14 Q. Chronic means a continuing problem, right?

 202 15 MR. WASDIN: Objection to foundation.

 202 16 BY THE WITNESS:

 202 17 A. I don't know what it means. I didn't

 202 18 write this.

 202 19 BY MR. OVERHOLTZ:

 202 20 Q. Like chronic hip pain or chronic knee

 202 21 pain?

 202 22 A. I -- I don't know what it means.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 65 of 303
McNamara

Colors

Plaintiff Affirmative Deposition Testimony

Defense Objection to Plaintiff Affirmative

Defense Counter Deposition Testimony

Plaintiff Objection to Defense Counter

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 66 of 303
McNamara 2

Designation Objection Rulings

8:20 - 8:21 McNamara

 8 20 Q. Can you please state your name, sir?

 8 21 A. Tim McNamara.

8:24 - 9:2 McNamara

 8 24 Q. We met before the deposition. My name is

 9 1 Sean Tracey. Nice to meet you.

 9 2 A. Yes.

9:7 - 9:14 McNamara

 9 7 Q. Okay. Where do you work?

 9 8 A. Where do I work now?

 9 9 Q. Yes.

 9 10 A. I'm retired.

 9 11 Q. When did you retire?

 9 12 A. May -- in May, June timeframe.

 9 13 Q. Of 2019?

 9 14 A. Yes.

12:7 - 12:18 McNamara

 12 7 And -- and you were with Aearo for

 12 8 28 years, is that right?

 12 9 A. Yes.

 12 10 Q. And -- and for all 28 years, were you in

 12 11 sales in some form or fashion?

 12 12 A. Yes.

 12 13 Q. And is it -- is it accurate that you left

 12 14 Aearo around 2008?

 12 15 A. Yes.

 12 16 Q. Now, when you left, had Aearo been

 12 17 purchased by 3M?

 12 18 A. Yes.

20:18 - 20:21 McNamara

 20 18 Q. I -- in looking at the documents, it looks

 20 19 like you formed some relationships over the years with

 20 20 people in the military. Is that a fair assessment?

 20 21 A. That's a fair assessment.

Re: [20:18-20:21]

Def Obj Relevance (401, 402)

SUSTAINED

26:13 - 26:16 McNamara

 26 13 Q. One of the products that you sold when you

 26 14 were with Aearo was the Combat Arms Earplug, wasn't

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 67 of 303
McNamara 3

 26 15 it?

 26 16 A. Yes.

27:2 - 27:12 McNamara

 27 2 Who was your customer?

 27 3 A. The various units on -- on post and the

 27 4 Defense Supply Center.

 27 5 Q. Okay. So in looking at the documents, it

 27 6 looks like you would go from -- are they called bases

 27 7 or posts? What do you call them?

 27 8 A. I call them bases.

 27 9 Q. Okay. So you in -- in your job as a

 27 10 salesperson and a sales manager at one point for Aearo

 27 11 would go from base to base?

 27 12 A. That is correct.

27:16 - 29:10 McNamara

 27 16 Q. And you would contact base commanders or

 27 17 how did that work?

 27 18 A. I -- generally, it would be each, you

 27 19 know, battalions or brigades or, you know, structures

 27 20 like that.

 27 21 Q. Okay. And -- and when you went to -- is

 27 22 it fair to say that you visited -- that you visited in

 27 23 your course of your career most, if not all, of the

 27 24 bases in the US?

 28 1 A. A lot of them, yeah.

 28 2 Q. Okay. How many, just ballpark?

 28 3 A. 20 or 30.

 28 4 Q. Okay. And how often would you do that?

 28 5 A. Generally, every week.

 28 6 Q. Every week you'd be on the road to some

 28 7 base talking to some base commander or somebody else?

 28 8 A. Yes.

 28 9 Q. And did you also talk to the soldiers

 28 10 sometimes at the bases?

 28 11 A. Not really.

 28 12 Q. What does "not really" mean?

 28 13 A. My -- again, my customer was, you know,

 28 14 the various battalions, you know, the sergeant majors.

 28 15 I was with the sergeant majors, the majors, the

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 68 of 303
McNamara 4

 28 16 colonels and -- and so forth, not -- not specifically

 28 17 the soldiers.

 28 18 Q. More of the management?

 28 19 A. Yes.

 28 20 Q. Okay. Would you sometimes make

 28 21 presentations to the management?

 28 22 A. Yes.

 28 23 Q. Would you sometimes have PowerPoint

 28 24 presentations?

 29 1 A. Sometimes, but very rare.

 29 2 Q. Okay. You certainly brought literature

 29 3 with you?

 29 4 A. Oh, yeah.

 29 5 Q. And the sales sheets?

 29 6 A. Yes.

 29 7 Q. Brochures?

 29 8 A. Yes.

 29 9 Q. Things like that?

 29 10 A. Yes.

29:11 - 29:12 McNamara

 29 11 Q. Did you, yourself, ever do any training on

 29 12 the bases?

Re: [29:11-29:12]

Def Obj Vague (611, 403); 3M MIL 

No. 15

OVERRULED

29:15 - 29:15 McNamara

 29 15 A. Sometimes, yes.

Re: [29:15-29:15]

Def Obj Vague (611, 403); 3M MIL 

No. 15

OVERRULED

29:16 - 29:16 McNamara

 29 16 BY MR. TRACEY:

29:17 - 30:17 McNamara

 29 17 Q. Okay. Tell me how that would work. How

 29 18 would you -- would that be scheduled in advance that

 29 19 you were going to do training on the bases?

 29 20 A. No.

 29 21 Q. That would just -- would it just be

 29 22 impromptu or ad hoc, you got there and somebody said,

 29 23 Hey, can you train us on this or that?

 29 24 A. Show the product, yeah.

 30 1 Q. Okay. I see.

 30 2 And -- and was it -- is it true that when

 30 3 you were doing the training it would be to the

Re: [29:17-30:17]

Def Obj 3M MIL No. 15; Relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 69 of 303
McNamara 5

 30 4 management people or would sometimes -- sometimes

 30 5 the -- the soldiers be there?

 30 6 A. The management people, but sometimes the

 30 7 soldiers would be in the room.

 30 8 Q. Okay. And -- and sometimes this training

 30 9 would involve the Combat Arms Version 2, correct?

 30 10 A. Sometimes.

 30 11 Q. Yeah.

 30 12 And this training, in looking at some of

 30 13 the documents, some of your documents both from the

 30 14 file that 3M gave us and the documents we subpoenaed,

 30 15 you -- you -- you did have materials you would use to

 30 16 train people on the bases?

 30 17 A. Correct, yeah.

30:18 - 30:19 McNamara

 30 18 Q. Now, these materials that you got to train

 30 19 people on the bases, where did it come from?

Re: [30:18-30:19]

Def Obj Foundation (602); 3M MIL 

No. 15

OVERRULED

30:22 - 30:22 McNamara

 30 22 A. It would come from the company.

Re: [30:22-30:22]

Def Obj Foundation (602); 3M MIL 

No. 15

OVERRULED

30:23 - 30:23 McNamara

 30 23 BY MR. TRACEY:

30:24 - 31:5 McNamara

 30 24 Q. Okay. Be fair to say that you used what

 31 1 the company gave you and authorized you to use to do

 31 2 this training?

 31 3 A. Yes.

 31 4 Q. Okay. Were you allowed to use things

 31 5 outside of what the company authorized you to use?

Re: [30:24-31:5]

Def Obj 3M MIL No. 15; Foundation 

(602); Prejudice (403); Relevance (401, 

402)

OVERRULED

31:4 - 31:9 McNamara

 31 4 Q. Okay. Were you allowed to use things

 31 5 outside of what the company authorized you to use?

 31 6 MS. ELIZABETH: Objection; form.

 31 7 BY THE WITNESS:

 31 8 A. Yes, but I -- I always used the company's

 31 9 literature.

Re: [31:4-31:9]

Def Obj 3M MIL No. 15; Foundation 

(602); Prejudice (403); Relevance (401, 

402); Vague (611, 403)

OVERRULED

31:10 - 31:10 McNamara

 31 10 BY MR. TRACEY:

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 70 of 303
McNamara 6

31:11 - 31:12 McNamara

 31 11 Q. Okay. Okay. Did your literature come

 31 12 from the company's technical group?

Re: [31:11-31:12]

Def Obj Foundation (602)

OVERRULED

31:14 - 31:14 McNamara

 31 14 BY THE WITNESS:

31:15 - 31:15 McNamara

 31 15 A. Sometimes.

Re: [31:15-31:15]

Def Obj Foundation (602)

OVERRULED

31:16 - 31:16 McNamara

 31 16 BY MR. TRACEY:

31:17 - 31:17 McNamara

 31 17 Q. Okay. Where else would it come from?

Re: [31:17-31:17]

Def Obj Foundation (602)

OVERRULED

31:20 - 31:21 McNamara

 31 20 A. Marketing department or the literature

 31 21 department.

Re: [31:20-31:21]

Def Obj Foundation (602)

OVERRULED

31:23 - 32:3 McNamara

 31 23 Q. Okay. This is probably a good time to --

 31 24 to ask. You -- you -- as I understand it, your job

 32 1 for most of your career at Aearo was -- was that you

 32 2 were the -- you were the sales guy to the -- to the

 32 3 military, is that right?

Re: [31:23-32:3]

Def Obj Compound; Misstates (611, 

403)

OVERRULED

32:5 - 32:5 McNamara

 32 5 BY THE WITNESS:

32:6 - 32:8 McNamara

 32 6 A. Yeah -- not necessarily all of those

 32 7 28 years, but, yeah, the last -- you know, since the

 32 8 last -- you know, 1998 and on, I guess.

Re: [32:6-32:8]

Def Obj Compound; Misstates (611, 

403)

OVERRULED

32:10 - 32:12 McNamara

 32 10 Q. '98 to 2008, that last decade you were

 32 11 there?

 32 12 A. Yeah.

32:13 - 32:17 McNamara

 32 13 Q. Your job duties included, among other

 32 14 things, this isn't exclusive, but certainly included

 32 15 in large part representing your company in their sales

 32 16 interactions with the military?

 32 17 A. Yes.

32:18 - 32:19 McNamara

 32 18 Q. Now, were you the only person during this

 32 19 timeframe that had those job responsibilities?

Re: [32:18-32:19]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 71 of 303
McNamara 7

32:22 - 32:22 McNamara

 32 22 A. The majority of time.

Re: [32:22-32:22]

Def Obj Foundation (602)

OVERRULED

32:23 - 33:10 McNamara

 32 23 BY MR. TRACEY:

 32 24 Q. And when did you become a sales manager?

 33 1 A. It was -- it was primarily sales manager

 33 2 myself. I was the only one in --

 33 3 Q. Okay.

 33 4 A. -- in the military division.

 33 5 Q. So you were managing yourself?

 33 6 A. Pretty much, yes.

 33 7 Q. Yeah. And who did you report to?

 33 8 A. A variety of managers. There is Marty

 33 9 Salon, Mike Cimino, and towards the end there, it was

 33 10 Frank Gavin.

44:6 - 44:8 McNamara

 44 6 Q. I have a copy of -- it looks like a resume

 44 7 that was produced -- your resume that was produced

 44 8 pursuant to a subpoena.

44:10 - 44:18 McNamara

 44 10 THE WITNESS: Thank you.

 44 11 BY MR. TRACEY:

 44 12 Q. And do you see that? This is your resume,

 44 13 right?

 44 14 A. It is.

 44 15 Q. And under Aearo Technologies, it says that

 44 16 from '96 to 2009 you were the senior sales manager,

 44 17 military division?

 44 18 A. Correct.

47:1 - 47:5 McNamara

 47 1 On the second page of your resume, under

 47 2 "Distributor Account Manager, '85 to '95," there is a

 47 3 bullet that says: "Trained the trainer with constant

 47 4 training with not only our distributors, but the end

 47 5 users as well."

48:12 - 48:16 McNamara

 48 12 Q. Okay. How many times in your career do

 48 13 you think you have -- you have trained people on how

 48 14 to use one of your company's products?

Re: [48:12-48:16]

Def Obj 3M MIL No. 15; Compound 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 72 of 303
McNamara 8

 48 15 A. I don't know. Thousands.

 48 16 Q. Thousands.

48:16 - 48:17 McNamara

 48 16 Q. Thousands.

 48 17 Who trained you how to use the products?

Re: [48:16-48:17]

Def Obj 3M MIL No. 15; Compound 

(611, 403)

OVERRULED

48:20 - 48:21 McNamara

 48 20 A. Who trained me would be the product line

 48 21 directors.

Re: [48:20-48:21]

Def Obj 3M MIL No. 15; Compound 

(611, 403)

OVERRULED

48:22 - 49:2 McNamara

 48 22 BY MR. TRACEY:

 48 23 Q. Okay. So, for example, with Combat Arms,

 48 24 who -- Version 2, who is the -- who was the product

 49 1 line director?

 49 2 A. Brian Myers.

49:3 - 49:5 McNamara

 49 3 Q. So Brian Myers would train you, the sales

 49 4 director, so that you in turn could train others?

 49 5 A. Correct.

Re: [49:3-49:5]

Def Obj 3M MIL No. 15; Compound 

(611, 403)

OVERRULED

50:16 - 50:20 McNamara

 50 16 Q. Okay. When you first learned how to

 50 17 properly use the Combat Arms Version 2 earplug, do you

 50 18 remember, was it Brian Myers that trained you?

 50 19 A. I don't remember, but, yeah, I would -- I

 50 20 would think that would be the person.

51:22 - 52:11 McNamara

 51 22 Q. Okay. Now, the Combat Arms dual-ended

 51 23 earplug, I have a -- I have one of them around here

 51 24 somewhere, you certainly are familiar --

 52 1 MR. TRACEY: Can we put the Elmo on.

 52 2 BY MR. TRACEY:

 52 3 Q. You recognize those as being the --

 52 4 A. Yes.

 52 5 Q. -- dual-ended Combat Arms Earplugs?

 52 6 A. Yes.

 52 7 Q. Now, it is a fair -- it is a true

 52 8 statement, is it not, that prior -- that never before

 52 9 or since have you ever been involved with the sale of

 52 10 a dual-ended hearing protection device?

 52 11 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 73 of 303
McNamara 9

52:12 - 52:15 McNamara

 52 12 Q. That is, this was the first and last time

 52 13 in the history of hearing protection devices, at least

 52 14 as far as you know, that any company marketed a

 52 15 dual-ended product?

Re: [52:12-52:15]

Def Obj Foundation (602)

OVERRULED

52:18 - 52:18 McNamara

 52 18 A. I would say so.

Re: [52:18-52:18]

Def Obj Foundation (602)

OVERRULED

53:11 - 53:14 McNamara

 53 11 Q. You yourself before the introduction of

 53 12 the Combat Arms Earplug had never used a dual-ended

 53 13 device, had you?

 53 14 A. I had not.

Re: [53:11-53:14]

Def Obj Relevance (401, 402)

OVERRULED

54:11 - 54:13 McNamara

 54 11 Q. Okay. Do you know what size your ear

 54 12 canals are?

 54 13 A. Medium.

Re: [54:11-54:13]

Def Obj Relevance (401, 402)

OVERRULED

54:14 - 54:15 McNamara

 54 14 Q. Okay. What are most people's sizes, do

 54 15 you know?

Re: [54:14-54:15]

Def Obj Foundation (602)

SUSTAINED

54:18 - 54:18 McNamara

 54 18 A. I have -- I have no idea.

Re: [54:18-54:18]

Def Obj Foundation (602)

SUSTAINED

54:19 - 54:19 McNamara

 54 19 BY MR. TRACEY:

54:20 - 55:2 McNamara

 54 20 Q. When you were selling the Combat Arms

 54 21 Version 2 earplugs, did you have an understanding

 54 22 of -- of, you know, sort of how the general population

 54 23 broke down, small, medium, large, extra large?

 54 24 A. No. It varied.

 55 1 Q. Okay. It varied?

 55 2 A. Yeah, it varied.

Re: [54:20-55:2]

Def Obj Foundation (602)

OVERRULED

55:3 - 55:5 McNamara

 55 3 Q. Okay. And with the Combat Arms Version 2,

 55 4 it didn't matter because it only came in one size,

 55 5 right?

Re: [55:3-55:5]

Def Obj Argumentative; Vague (611, 

403)

OVERRULED

55:8 - 55:8 McNamara

 55 8 A. It came in one size, universal.

Re: [55:8-55:8]

Def Obj Argumentative; Vague (611, 

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 74 of 303
McNamara 10

55:9 - 55:9 McNamara

 55 9 BY MR. TRACEY:

55:10 - 55:10 McNamara

 55 10 Q. Yeah. One size fits all?

Re: [55:10-55:10]

Def Obj Argumentative; Misstates 

(611, 403)

OVERRULED

55:13 - 55:13 McNamara

 55 13 A. Generally, yeah.

Re: [55:13-55:13]

Def Obj Argumentative; Misstates 

(611, 403)

OVERRULED

55:14 - 55:14 McNamara

 55 14 BY MR. TRACEY:

55:15 - 55:16 McNamara

 55 15 Q. Yeah. That's at least the way it was

 55 16 marketed?

Re: [55:15-55:16]

Def Obj Argumentative; Misstates 

(611, 403); Foundation (602)

OVERRULED

55:19 - 55:19 McNamara

 55 19 A. To the best of my knowledge, yes.

Re: [55:19-55:19]

Def Obj Argumentative; Misstates 

(611, 403); Foundation (602)

OVERRULED

55:20 - 55:20 McNamara

 55 20 BY MR. TRACEY:

55:21 - 55:22 McNamara

 55 21 Q. Yeah. That's the way you -- you sold

 55 22 those?

Re: [55:21-55:22]

Def Obj Argumentative; Misstates 

(611, 403)

OVERRULED

56:1 - 56:1 McNamara

 56 1 A. That's the way I understood it, yes.

Re: [56:1-56:1]

Def Obj Argumentative; Misstates 

(611, 403)

OVERRULED

56:2 - 56:2 McNamara

 56 2 BY MR. TRACEY:

56:3 - 56:4 McNamara

 56 3 Q. Yeah. And because you understood it that

 56 4 way, that's the way you -- you sold it?

Re: [56:3-56:4]

Def Obj Argumentative; Misstates 

(611, 403)

OVERRULED

56:7 - 56:8 McNamara

 56 7 A. It's the product that -- that, yeah, I

 56 8 sold.

Re: [56:7-56:8]

Def Obj Argumentative; Misstates 

(611, 403)

OVERRULED

56:9 - 57:4 McNamara

 56 9 MR. TRACEY: Okay. Can I have 1141. We are

 56 10 going to mark this as Exhibit 3.

 56 11 (WHEREUPON, a certain document was

 56 12 marked Timothy McNamara Deposition

 56 13 Exhibit No. 3, for identification, as

 56 14 of 03/11/2020.)

Re: [56:9-57:4]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 75 of 303
McNamara 11

 56 15 BY MR. TRACEY:

 56 16 Q. You can set aside Exhibit 2 for a second,

 56 17 although keep it close, because we are going to come

 56 18 back to it.

 56 19 This is an e-mail -- an e-mail chain, and

 56 20 if you look at down at the bottom, it's -- it's

 56 21 originated by a guy named Robert Bosanko, who looks --

 56 22 appears to be with the -- the Army.

 56 23 Do you remember him?

 56 24 A. I do not.

 57 1 Q. And this is November the 3rd, 1999. The

 57 2 subject, you can see, is the Combat Arms Earplug.

 57 3 Do you see that?

 57 4 A. Yes.

57:5 - 57:7 McNamara

 57 5 Q. And he's asking, you'll see, this is

 57 6 Brian, Brian Myers, who is your direct report at the

 57 7 time, right?

Re: [57:5-57:7]

Def Obj Argumentative; Compound; 

Misstates (611, 403)

OVERRULED

57:10 - 57:10 McNamara

 57 10 A. He was not my direct report.

Re: [57:10-57:10]

Def Obj Argumentative; Compound; 

Misstates (611, 403)

OVERRULED

57:20 - 58:5 McNamara

 57 20 Q. Okay. So how would you interact with

 57 21 Brian Myers, other than the training that you said he

 57 22 would give you?

 57 23 A. I would pass information on to him as I --

 57 24 as I received it so that he had information from the

 58 1 field.

 58 2 Q. Got it. Okay.

 58 3 You certainly knew who Brian Myers was?

 58 4 A. Sure.

 58 5 Q. Yeah.

58:6 - 58:16 McNamara

 58 6 And Mr. Bosanco says: "Brian, I need to

 58 7 get all of the specs and data on the Combat Arms

 58 8 Earplug. I'm going to use one of our artillery units

 58 9 on post to test/use the new earplug and get feedback

 58 10 from them. If you could help me with this I will keep

 58 11 you informed on how it go" -- "how it is going. Can

Re: [58:6-58:16]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 76 of 303
McNamara 12

 58 12 you send us some of the earplugs, the unit will be

 58 13 approximately 100 soldiers." And then he gives his --

 58 14 his contact information.

 58 15 Do you see that?

 58 16 A. I do.

58:17 - 58:21 McNamara

 58 17 Q. And if you -- if you go up, you'll see

 58 18 that Brian has, it looks like, forwarded this or sent

 58 19 it to Doug Ohlin with the -- the Army.

 58 20 You know Doug Ohlin, don't you?

 58 21 A. I do.

Re: [58:17-58:21]

Def Obj Foundation (602); Relevance 

(401, 402)

OVERRULED

58:22 - 59:1 McNamara

 58 22 Q. Did you consider Doug Ohlin a friend?

 58 23 A. No.

 58 24 Q. Okay. Just an acquaintance?

 59 1 A. Correct.

Re: [58:22-59:1]

Def Obj Relevance (401, 402)

OVERRULED

59:15 - 59:23 McNamara

 59 15 Q. Okay. Brian says to Doug Ohlin, this is

 59 16 Thursday, November 4th, the next day: "Doug, what

 59 17 follows is correspondence I received from Robert

 59 18 Bosanko. He has requested specs/data on the new

 59 19 earplug. Could you possibly send him some of the test

 59 20 results from your studies? I know that I have seen

 59 21 some of these, but perhaps not all. Thanks."

 59 22 Do you see that?

 59 23 A. I do.

Re: [59:15-59:23]

Def Obj Foundation (602)

OVERRULED

59:24 - 60:4 McNamara

 59 24 Q. So what we have is -- is the Army asking

 60 1 your company that makes the product for test data and

 60 2 then your company going back to the Army or -- or Doug

 60 3 Ohlin asking for test -- testing, right?

 60 4 A. Yes.

Re: [59:24-60:4]

Def Obj Foundation (602)

OVERRULED

60:5 - 60:11 McNamara

 60 5 Q. And then let's read what Doug Ohlin tells

 60 6 Brian Myers. He says: "Brain," but I'm sure he meant

 60 7 Brian. He says: "I'm at something of a loss to know

 60 8 what studies I have done or am capable of doing in

 60 9 this pay shuffling operation at CHPPM."

Re: [60:5-60:11]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 77 of 303
McNamara 13

 60 10 Do you know what CHPPM is?

 60 11 A. Yes.

60:12 - 60:17 McNamara

 60 12 Q. What is CHPPM?

 60 13 A. It is the Army research center for

 60 14 basically hearing protection.

 60 15 Q. At -- at -- at Aberdeen Proving Ground?

 60 16 A. That's correct.

 60 17 Q. All right.

60:18 - 61:3 McNamara

 60 18 Doug goes on to say: "I'm trying to get

 60 19 through to Rich McKinley to find out if he has done

 60 20 anything with the samples of the Sound Guard foam plug

 60 21 we forwarded to him. His lab appears to be the only

 60 22 one capable in DOD at this time. My colleagues in

 60 23 Army R&D have chosen not to staff this capability, but

 60 24 they don't seem to want to relinquish the

 61 1 responsibility to the Air Force either."

 61 2 Did I read that right?

 61 3 A. Yes.

Re: [60:18-61:3]

Def Obj Foundation (602)

OVERRULED

61:4 - 61:5 McNamara

 61 4 Q. Now, you are copied on this, aren't --

 61 5 aren't you?

Re: [61:4-61:5]

Def Obj Vague; Misstates (611, 403)

OVERRULED

61:9 - 61:9 McNamara

 61 9 A. Yes.

Re: [61:9-61:9]

Def Obj Vague; Misstates (611, 403)

OVERRULED

61:18 - 61:23 McNamara

 61 18 Q. Sorry. You are in the chain. I just -- I

 61 19 just want to clarify that. That's you, right?

 61 20 A. That is.

 61 21 Q. You -- you were -- you were -- you were

 61 22 copied on the e-mail that Brian sent to Doug Ohlin?

 61 23 A. Yes, I was.

61:24 - 62:2 McNamara

 61 24 Q. But it looks like you were not copied on

 62 1 Doug Ohlin's response to Brian Myers, is that fair?

 62 2 A. Yes.

Re: [61:24-62:2]

Def Obj Foundation (602)

OVERRULED

62:3 - 62:6 McNamara

 62 3 Q. Okay. So -- so the Army asked your

 62 4 company for studies on the product that they

Re: [62:3-62:6]

Def Obj Foundation (602); Hearsay 

(801, 802)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 78 of 303
McNamara 14

 62 5 manufacture and are selling, right?

 62 6 A. Yes.

62:7 - 62:9 McNamara

 62 7 Q. And then your company asks Doug Ohlin for

 62 8 studies, and Doug Ohlin says, essentially, What are

 62 9 you talking about, right?

Re: [62:7-62:9]

Def Obj Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

OVERRULED

62:12 - 62:12 McNamara

 62 12 A. That's what it appears.

Re: [62:12-62:12]

Def Obj Misstates (611, 403); Hearsay 

(801, 802); Foundation (602)

OVERRULED

62:13 - 62:14 McNamara

 62 13 BY MR. TRACEY:

 62 14 Q. Yeah.

62:15 - 62:16 McNamara

 62 15 Now, your company had done some studies on

 62 16 the Combat Arms Earplug, had they not?

Re: [62:15-62:16]

Def Obj Vague (611, 403); Foundation 

(602)

OVERRULED

62:19 - 62:19 McNamara

 62 19 A. I'm not aware of that.

Re: [62:19-62:19]

Def Obj Vague (611, 403); Foundation 

(602)

OVERRULED

62:20 - 63:3 McNamara

 62 20 BY MR. TRACEY:

 62 21 Q. Okay.

 62 22 MR. TRACEY: No, no. I know. I'm with you.

 62 23 Can I have 1077, please.

 62 24 (WHEREUPON, a certain document was

 63 1 marked Timothy McNamara Deposition

 63 2 Exhibit No. 4, for identification, as

 63 3 of 03/11/2020.)

63:13 - 63:18 McNamara

 63 13 Q. Exhibit 4. This is -- do you see this is

 63 14 on an Aearo letterhead or an Aearo -- this is an Aearo

 63 15 document?

 63 16 A. Yes.

 63 17 Q. It says: "E-A-R Research & Development,"

 63 18 to Brian Myers from Elliott Berger.

Re: [63:13-63:18]

Def Obj Foundation (602)

OVERRULED

63:19 - 63:23 McNamara

 63 19 Who was -- who was Elliott Berger?

 63 20 A. The scientist.

 63 21 Q. At -- at Aearo?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 79 of 303
McNamara 15

 63 22 A. At E-A-R division, yes.

 63 23 Q. Yeah.

63:24 - 64:2 McNamara

 63 24 And the date of this is February the 1st,

 64 1 2000, a couple months after the e-mail where nobody

 64 2 seems to have any testing on the product, right?

Re: [63:24-64:2]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

SUSTAINED

64:5 - 64:5 McNamara

 64 5 A. I don't know.

Re: [64:5-64:5]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

SUSTAINED

64:6 - 64:6 McNamara

 64 6 BY MR. TRACEY:

64:7 - 65:1 McNamara

 64 7 Q. Well, this is -- this is -- this is three

 64 8 months, two months after the e-mail string we just

 64 9 read, right, November of '99 and now we are in

 64 10 February of 2000, right?

 64 11 A. Yes.

 64 12 Q. And then about -- under the NRR Labeling/

 64 13 EPA-Type Testing down there, almost to the bottom, do

 64 14 you see where it mentions the Combat Arms Plug?

 64 15 A. Yes.

 64 16 Q. Now, have you ever seen this document

 64 17 before that you know of?

 64 18 A. I'm not -- I don't remember this.

 64 19 Q. Okay.

 64 20 A. No.

 64 21 Q. Let's read it together then since you are

 64 22 seeing it for the first time.

 64 23 It says the: "UltraFit end of the Combat

 64 24 Arms Plug [2130155] - Stopped after eight subjects,

 65 1 NRR 11."

Re: [64:7-65:1]

Def Obj Foundation (602)

OVERRULED

65:8 - 65:11 McNamara

 65 8 Did I read that right?

 65 9 A. You did.

 65 10 Q. What is an NRR?

 65 11 A. Noise reduction rating.

Re: [65:8-65:11]

Def Obj Foundation (602)

OVERRULED

65:12 - 65:13 McNamara

 65 12 Q. Now, is a noise reduction rating of 11

 65 13 good or poor?

Re: [65:12-65:13]

Def Obj Foundation (602); Compound 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 80 of 303
McNamara 16

65:16 - 65:16 McNamara

 65 16 A. It's low.

Re: [65:16-65:16]

Def Obj Foundation (602); Compound 

(611, 403)

OVERRULED

69:19 - 69:20 McNamara

 69 19 Q. Would an NRR of 11 on the green end be

 69 20 protective from gunfire?

Re: [69:19-69:20]

Def Obj Foundation (602)

OVERRULED

69:23 - 69:23 McNamara

 69 23 A. No.

Re: [69:23-69:23]

Def Obj Foundation (602)

OVERRULED

69:24 - 70:1 McNamara

 69 24 BY MR. TRACEY:

 70 1 Q. What about helicopter noise?

70:1 - 70:1 McNamara

 70 1 Q. What about helicopter noise?

Re: [70:1-70:1]

Def Obj Foundation (602)

OVERRULED

70:4 - 70:4 McNamara

 70 4 A. Probably not.

Re: [70:4-70:4]

Def Obj Foundation (602)

OVERRULED

70:16 - 70:16 McNamara

 70 16 BY MR. TRACEY:

70:17 - 70:20 McNamara

 70 17 Q. Okay. In any event, when we look at

 70 18 Exhibit No. 4, we see that your company stopped this

 70 19 test, didn't they?

 70 20 A. It appears.

Re: [70:17-70:20]

Def Obj Foundation (602)

OVERRULED

70:21 - 70:23 McNamara

 70 21 Q. Now, are you aware of your company

 70 22 stopping NRR testing due to low results?

 70 23 A. No.

Re: [70:21-70:23]

Def Obj Foundation (602); Misstates 

(611, 403); 3M MIL No. 18

OVERRULED

71:2 - 71:5 McNamara

 71 2 Q. Have you ever been made privy to

 71 3 information on the technical side where your company

 71 4 made a decision to stop NRR testing because the

 71 5 results were too low?

Re: [71:2-71:5]

Def Obj Foundation (602); Misstates 

(611, 403); 3M MIL No. 18

OVERRULED

71:8 - 71:8 McNamara

 71 8 A. I'm not aware.

Re: [71:8-71:8]

Def Obj Foundation (602); Misstates 

(611, 403); 3M MIL No. 18

OVERRULED

71:16 - 71:18 McNamara

 71 16 Q. Okay. So if your company had a corporate

 71 17 policy to stop testing when they had low results, it's

 71 18 just something you didn't know about?

Re: [71:16-71:18]

Def Obj Foundation (602); Misstates 

(611, 403); 3M MIL No. 18

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 81 of 303
McNamara 17

71:21 - 71:21 McNamara

 71 21 A. I was not aware of it.

Re: [71:21-71:21]

Def Obj Foundation (602); Misstates 

(611, 403) ; 3M MIL No. 18

SUSTAINED

72:5 - 72:9 McNamara

 72 5 that. Do you know who Ron Kieper is?

 72 6 A. Yes.

 72 7 Q. Who is Ron Kieper?

 72 8 A. He was an assistant to Elliott Berger in

 72 9 the lab.

72:10 - 72:12 McNamara

 72 10 Q. Do you know if he was the primary

 72 11 experimenter or fitter of earplugs at your company?

 72 12 A. I do not.

Re: [72:10-72:12]

Def Obj Foundation (602)

SUSTAINED

72:13 - 72:16 McNamara

 72 13 Q. Okay. Have you ever met him?

 72 14 A. Yes.

 72 15 Q. On -- on few or many occasions?

 72 16 A. Few.

72:23 - 72:24 McNamara

 72 23 Q. Okay. Do you know of anybody who had more

 72 24 experience fitting earplugs than Ron Kieper?

Re: [72:23-72:24]

Def Obj Foundation (602)

OVERRULED

73:3 - 73:3 McNamara

 73 3 A. Not -- I'm not aware.

Re: [73:3-73:3]

Def Obj Foundation (602)

OVERRULED

76:5 - 76:8 McNamara

 76 5 Q. Okay. Would it be fair to say that

 76 6 Elliott Berger and Ron Kieper would probably be the

 76 7 best people to teach you how to properly fit this

 76 8 unusual earplug?

Re: [76:5-76:8]

Def Obj Foundation (602)

OVERRULED

76:11 - 76:12 McNamara

 76 11 A. They would be -- they would be good

 76 12 people, yes.

Re: [76:11-76:12]

Def Obj Foundation (602)

OVERRULED

76:13 - 76:14 McNamara

 76 13 BY MR. TRACEY:

 76 14 Q. Yeah.

78:21 - 79:4 McNamara

 78 21 Q. Were -- were you ever aware that a NRR

 78 22 test had -- on the Combat Arms Earplug was stopped

 78 23 after eight subjects with an NRR of 11?

 78 24 A. I was not.

Re: [78:21-79:4]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402); 

Argumentative (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 82 of 303
McNamara 18

 79 1 Q. Okay. It is -- is right here and now

 79 2 today during your deposition the first time you're

 79 3 becoming aware of that fact?

 79 4 A. Yes.

79:13 - 79:18 McNamara

 79 13 Q. Okay. All right. Let's set that aside

 79 14 and let's go to the next Exhibit 5, which is an e-mail

 79 15 from Elliott Berger to --

 79 16 MS. ELIZABETH: I don't have it yet.

 79 17 BY MR. TRACEY:

 79 18 Q. -- to Ron Kieper.

Re: [79:13-79:18]

Def Obj Foundation (602)

OVERRULED

80:22 - 81:9 McNamara

 80 22 Q. Okay. So this is -- this is Exhibit 5 to

 80 23 your deposition, and if you flip over to the

 80 24 page where it says: "To Elliott Berger from Ron

 81 1 Kieper," the date of this is May the 11th, 2000, isn't

 81 2 it?

 81 3 A. Yes.

 81 4 Q. And the subject is: "Results of

 81 5 Short-Stemmed UltraFit Plug Test."

 81 6 Do you see that?

 81 7 A. Yes.

 81 8 Q. Now, have you ever seen this memo before?

 81 9 A. I don't remember this one now.

Re: [80:22-81:9]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

83:9 - 83:12 McNamara

 83 9 Q. Okay. Let -- let me ask you this: Do you

 83 10 believe that your customers are entitled to know the

 83 11 truth about the -- the products that you are selling

 83 12 them?

Re: [83:9-83:12]

Def Obj Prejudice (403); Relevance 

(401, 402); Vague; Argumentative (611, 

403)

OVERRULED

83:15 - 83:15 McNamara

 83 15 A. Yes.

Re: [83:15-83:15]

Def Obj Prejudice (403); Relevance 

(401, 402); Vague; Argumentative (611, 

403)

OVERRULED

83:16 - 83:16 McNamara

 83 16 BY MR. TRACEY

83:17 - 83:19 McNamara

 83 17 Q. Do you believe that your role as a

 83 18 salesperson is to tell them the truth about the

 83 19 product, the good, the bad and the ugly?

Re: [83:17-83:19]

Def Obj Vague; Compound; 

Argumentative (611, 403); Prejudice 

(403); Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 83 of 303
McNamara 19

83:22 - 83:22 McNamara

 83 22 A. Yes.

Re: [83:22-83:22]

Def Obj Vague; Compound; 

Argumentative (611, 403); Prejudice 

(403); Relevance (401, 402)

OVERRULED

83:23 - 83:23 McNamara

 83 23 BY MR. TRACEY:

83:24 - 84:2 McNamara

 83 24 Q. Because if you don't deliver the truth

 84 1 to -- to your customers, they can't make fully

 84 2 informed decisions, can they?

Re: [83:24-84:2]

Def Obj Vague; Argumentative (611, 

403); Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

84:5 - 84:5 McNamara

 84 5 A. I would say so.

Re: [84:5-84:5]

Def Obj Vague; Argumentative (611, 

403) Foundation (602); Prejudice (403); 

Relevance (401, 402)

OVERRULED

84:6 - 84:10 McNamara

 84 6 BY MR. TRACEY:

 84 7 Q. Yeah.

 84 8 Really, a good salesperson develops trust

 84 9 with their customers, doesn't he?

 84 10 A. Yes.

84:11 - 84:12 McNamara

 84 11 Q. And it's trust and relationship building

 84 12 that makes you a successful salesperson, isn't it?

Re: [84:11-84:12]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403); Prejudice 

(403); Relevance (401, 402)

OVERRULED

84:15 - 84:15 McNamara

 84 15 A. Yes.

Re: [84:15-84:15]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

OVERRULED

84:16 - 84:16 McNamara

 84 16 BY MR. TRACEY:

84:17 - 85:4 McNamara

 84 17 Q. Yeah. So that when -- when Tim McNamara

 84 18 shows up to talk to a commander on an Army base,

 84 19 hopefully the commander has learned to trust what you

 84 20 tell them, right?

 84 21 A. Yes.

 84 22 Q. Hopefully the commander believes that Tim

 84 23 McNamara is honest, right?

 84 24 A. Absolutely.

 85 1 Q. And that when you say something about a

Re: [84:17-85:4]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 84 of 303
McNamara 20

 85 2 product, what you are telling him is true. That's

 85 3 what you hope for, right?

 85 4 A. Yes.

85:5 - 85:5 McNamara

 85 5 Q. That's what you should do, isn't it?

Re: [85:5-85:5]

Def Obj Vague; Misstates; 

Argumentative (611, 403)

OVERRULED

85:8 - 85:8 McNamara

 85 8 A. That's the goal, yes.

Re: [85:8-85:8]

Def Obj Vague; Misstates; 

Argumentative (611, 403)

OVERRULED

85:9 - 85:9 McNamara

 85 9 BY MR. TRACEY:

85:10 - 85:11 McNamara

 85 10 Q. And your company should do that, shouldn't

 85 11 they?

Re: [85:10-85:11]

Def Obj Vague; Misstates; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

85:14 - 85:14 McNamara

 85 14 A. Yes.

Re: [85:14-85:14]

Def Obj Vague; Misstates; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

85:15 - 85:15 McNamara

 85 15 BY MR. TRACEY:

85:16 - 85:18 McNamara

 85 16 Q. They should furnish the truth about their

 85 17 products to you so that you, in turn, can furnish the

 85 18 truth to the Army?

Re: [85:16-85:18]

Def Obj Vague; Misstates; 

Argumentative; Compound (611, 403); 

Foundation (602)

OVERRULED

85:21 - 85:21 McNamara

 85 21 A. I would say so.

Re: [85:21-85:21]

Def Obj Vague; Misstates; 

Argumentative; Compound (611, 403); 

Foundation (602)

OVERRULED

85:22 - 85:22 McNamara

 85 22 BY MR. TRACEY:

85:23 - 85:24 McNamara

 85 23 Q. It would be wrong to conceal the truth

 85 24 about their products from the Army, wouldn't it?

Re: [85:23-85:24]

Def Obj Vague; Misstates; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

86:3 - 86:3 McNamara

 86 3 A. I would say so, yes.

Re: [86:3-86:3]

Def Obj Vague; Misstates; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 85 of 303
McNamara 21

86:4 - 86:4 McNamara

 86 4 BY MR. TRACEY:

86:5 - 86:6 McNamara

 86 5 Q. Yeah. You wouldn't put your stamp of

 86 6 approval on that type of conduct, would you?

Re: [86:5-86:6]

Def Obj Vague; Misstates; 

Argumentative (611, 403); Foundation 

(602)

SUSTAINED

86:9 - 86:9 McNamara

 86 9 A. I would -- would not.

Re: [86:9-86:9]

Def Obj Vague; Misstates; 

Argumentative (611, 403); Foundation 

(602)

SUSTAINED

86:10 - 86:10 McNamara

 86 10 BY MR. TRACEY:

86:11 - 86:13 McNamara

 86 11 Q. You wouldn't want to do business with a

 86 12 company that concealed the truth about their products

 86 13 from their customer, would you?

Re: [86:11-86:13]

Def Obj Relevance (401, 402); Vague; 

Argumentative (611, 403); Foundation 

(602)

SUSTAINED

86:16 - 86:16 McNamara

 86 16 A. I would -- I would guess not.

Re: [86:16-86:16]

Def Obj Relevance (401, 402); Vague; 

Argumentative (611, 403); Foundation 

(602)

SUSTAINED

86:17 - 86:20 McNamara

 86 17 BY MR. TRACEY:

 86 18 Q. Have you ever knowingly not told the truth

 86 19 about one of your company's products to the military?

 86 20 A. No.

86:21 - 86:23 McNamara

 86 21 Q. What if you found out, Mr. McNamara, that

 86 22 your company didn't tell you the truth about the

 86 23 Combat Arms Earplug, how would that make you feel?

Re: [86:21-86:23]

Def Obj Relevance (401, 402); Vague; 

Compound; Argumentative (611, 403); 

Foundation (602)

SUSTAINED

87:2 - 87:2 McNamara

 87 2 A. I don't know.

Re: [87:2-87:2]

Def Obj Relevance (401, 402); Vague; 

Compound; Argumentative (611, 403); 

Foundation (602)

SUSTAINED

87:3 - 87:5 McNamara

 87 3 BY MR. TRACEY:

 87 4 Q. You don't know?

 87 5 A. That's what I said, yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 86 of 303
McNamara 22

87:6 - 87:17 McNamara

 87 6 Q. Okay. Well, let's look at Exhibit 5. It

 87 7 says:

 87 8 "The short-stemmed UltraFit Plug evaluated

 87 9 in Tests 213015 and 213017 is the opposite end of the

 87 10 Combat Arms Earplug (see attached drawing). The

 87 11 attached graph is a comparison of the means and

 87 12 standard deviations obtained in these two tests. The

 87 13 initial Test 213015 was stopped after eight subjects

 87 14 because the results were variable and the NRR was

 87 15 quite low (11)."

 87 16 Do you see that?

 87 17 A. Yes.

Re: [87:6-87:17]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

87:18 - 87:19 McNamara

 87 18 Q. Do you agree with Ron Kieper that an NRR

 87 19 of 11 is quite low?

Re: [87:18-87:19]

Def Obj Misstates (611, 403); 

Foundation (602)

OVERRULED

87:22 - 87:22 McNamara

 87 22 A. I don't know.

Re: [87:22-87:22]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

87:23 - 87:23 McNamara

 87 23 BY MR. TRACEY:

87:24 - 88:8 McNamara

 87 24 Q. You don't know?

 88 1 A. I don't know.

 88 2 Q. You never marketed this product to the

 88 3 military with an NRR of 11, did you?

 88 4 A. No.

 88 5 Q. You've never seen any sales or marketing

 88 6 materials where your company tells the military that

 88 7 the NRR on the Combat Arms is 11?

 88 8 A. Not that I know.

Re: [87:24-88:8]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403); Relevance 

(401, 402); Prejudice (403)

OVERRULED

88:9 - 88:14 McNamara

 88 9 Q. It says that all -- it goes on to say:

 88 10 "At all tested frequencies, Test 213017's

 88 11 means are higher and the standard deviations are lower

 88 12 than those of Test 213015 and the NRR is 22."

 88 13 Do you see that?

 88 14 A. Yes.

Re: [88:9-88:14]

Def Obj Prejudice (403); Relevance 

(401, 402); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 87 of 303
McNamara 23

88:15 - 88:16 McNamara

 88 15 Q. So -- so Test 017 got exactly double --

 88 16 double the NRR as 015, according to Mr. Kieper, right?

Re: [88:15-88:16]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

88:19 - 88:19 McNamara

 88 19 A. Yes.

Re: [88:19-88:19]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

88:20 - 89:1 McNamara

 88 20 BY MR. TRACEY:

 88 21 Q. And 22 is how you marketed the product to

 88 22 the military for a decade, isn't it?

 88 23 A. In a steady state noise.

 88 24 Q. Yes.

 89 1 Mr. Kieper goes on to say: "Because the

89:1 - 89:7 McNamara

 89 1 Mr. Kieper goes on to say: "Because the

 89 2 UltraFit Plug's stem is so short, it was difficult to

 89 3 fit the plug deeply into some subjects' ear canals,

 89 4 especially those subjects with medium and larger ear

 89 5 canals."

 89 6 Do you see that?

 89 7 A. Yes.

Re: [89:1-89:7]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

89:8 - 89:13 McNamara

 89 8 Q. Do any of your marketing or sales

 89 9 materials disclose that fact when you were selling

 89 10 this to the military?

 89 11 A. I don't remember.

 89 12 Q. You don't remember?

 89 13 A. I don't remember.

Re: [89:8-89:13]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

89:14 - 89:23 McNamara

 89 14 Q. Do you remember ever doing any training

 89 15 where you disclosed to the American military that

 89 16 because the plug stem was so short, it is difficult to

 89 17 plug the -- to fit the plug deeply into those with

 89 18 medium and larger ear canals?

 89 19 A. No.

 89 20 Q. You've never seen that on any materials

 89 21 that your company gave you to sell this product, have

 89 22 you?

 89 23 A. No.

Re: [89:14-89:23]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 88 of 303
McNamara 24

91:7 - 91:13 McNamara

 91 7 The reality is, Mr. McNamara, if you had

 91 8 shown up on an Army base with the sentence that's on

 91 9 that page that says: "Because the UltraFit Plug's

 91 10 stem is so short, it is difficult to fit the plug

 91 11 deeply into some subjects' ear canals, especially

 91 12 those with medium and larger ear canals," you wouldn't

 91 13 have sold one earplug, would you?

Re: [91:7-91:13]

Def Obj Foundation (602); 

Argumentative; Vague (611, 403); 

Prejudice (403); Relevance (401, 402)

OVERRULED

91:16 - 91:17 McNamara

 91 16 A. I would have -- I don't know. I don't

 91 17 know. I mean --

Re: [91:16-91:17]

Def Obj Foundation (602); 

Argumentative; Vague (611, 403)

OVERRULED

91:18 - 91:18 McNamara

 91 18 BY MR. TRACEY:

91:19 - 91:20 McNamara

 91 19 Q. Does that look like a sales -- a sales

 91 20 slogan you can win with right there?

Re: [91:19-91:20]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403); Relevance 

(401, 402)

SUSTAINED

91:23 - 91:23 McNamara

 91 23 A. It's not -- it's not a slogan.

Re: [91:23-91:23]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403); Relevance 

(401, 402)

SUSTAINED

91:24 - 92:1 McNamara

 91 24 BY MR. TRACEY:

 92 1 Q. Well, it's a fact. Is that a sales fact

92:1 - 92:2 McNamara

 92 1 Q. Well, it's a fact. Is that a sales fact

 92 2 that you could use to promote your product?

Re: [92:1-92:2]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

OVERRULED

92:6 - 92:6 McNamara

 92 6 A. I don't -- I don't know. I don't know.

Re: [92:6-92:6]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

OVERRULED

92:7 - 92:7 McNamara

 92 7 BY MR. TRACEY:

92:8 - 93:3 McNamara

 92 8 Q. You never did disseminate that information

 92 9 that we see on the page to the American military, did

 92 10 you?

 92 11 A. No.

 92 12 Q. When --

 92 13 A. Because I don't remember having this.

Re: [92:8-93:3]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 89 of 303
McNamara 25

 92 14 Q. Yes. And that's why you didn't do it in

 92 15 part, I guess, because you can't do it if you don't

 92 16 have it, right?

 92 17 MS. ELIZABETH: Objection; form.

 92 18 BY THE WITNESS:

 92 19 A. I -- yeah.

 92 20 BY MR. TRACEY:

 92 21 Q. Okay. They go on to say -- or Mr. Kieper

 92 22 goes on to tell Mr. Berger:

 92 23 "Additionally, the geometry of the ear

 92 24 canal opening sometimes inhibited the deep plug

 93 1 insertion required for maximum attenuation values."

 93 2 Did you know that?

 93 3 A. Yes.

93:10 - 93:14 McNamara

 93 10 Q. I'm talking about the second sentence,

 93 11 second paragraph, that starts out:

 93 12 Additionally, the geometry of the ear

 93 13 canal opening sometimes inhibited the deep plug

 93 14 insertion required for maximum attenuation values."

Re: [93:10-93:14]

Def Obj Foundation (602)

OVERRULED

93:18 - 93:19 McNamara

 93 18 Q. Did you know that information?

 93 19 A. Not specifically.

Re: [93:18-93:19]

Def Obj Foundation (602)

OVERRULED

93:20 - 93:22 McNamara

 93 20 Q. Okay. Because this is the first earplug

 93 21 of this kind ever in the world that you are aware of,

 93 22 right, this dual-ended plug?

Re: [93:20-93:22]

Def Obj Misstates; Vague; 

Argumentative (611, 403)

OVERRULED

94:1 - 94:1 McNamara

 94 1 A. That I was aware of.

Re: [94:1-94:1]

Def Obj Misstates; Vague; 

Argumentative (611, 403)

OVERRULED

94:2 - 94:2 McNamara

 94 2 BY MR. TRACEY:

94:3 - 94:5 McNamara

 94 3 Q. Yes. So you did not know the information

 94 4 in the second sentence in the second full paragraph,

 94 5 true?

Re: [94:3-94:5]

Def Obj Asked (611, 403); Foundation 

(602)

OVERRULED

94:8 - 94:8 McNamara

 94 8 A. I -- I don't remember it.

Re: [94:8-94:8]

Def Obj Asked (611, 403); Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 90 of 303
McNamara 26

94:13 - 94:13 McNamara

 94 13 Q. He goes on to tell Mr. Berger:

94:14 - 94:19 McNamara

 94 14 "When this plug was fitted, the third

 94 15 flange of the Combat Arms plug could press against the

 94 16 subject's concha" -- or, sorry -- "the subject's ear

 94 17 canal opening and fold up."

 94 18 Did you know that was true with the Combat

 94 19 Arms Earplug?

Re: [94:14-94:19]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

94:22 - 94:22 McNamara

 94 22 A. I was not -- I was not aware of that.

Re: [94:22-94:22]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); Prejudice 

(403); Relevance (401, 402)

OVERRULED

94:23 - 94:23 McNamara

 94 23 BY MR. TRACEY:

94:24 - 95:4 McNamara

 94 24 Q. Is right here right now in your deposition

 95 1 in March of 2020 the first time that you're learning

 95 2 that the Combat Arms Version -- Version 2 when fitted,

 95 3 that the third flange would press against the

 95 4 subject's ear canal opening and fold up?

Re: [94:24-95:4]

Def Obj Misstates; Argumentative 

(611, 403); Relevance (401, 402)

OVERRULED

95:7 - 95:7 McNamara

 95 7 A. I don't remember that.

Re: [95:7-95:7]

Def Obj Misstates; Argumentative 

(611, 403); Relevance (401, 402)

OVERRULED

95:8 - 95:8 McNamara

 95 8 BY MR. TRACEY:

95:9 - 95:22 McNamara

 95 9 Q. You didn't use that sentence when you were

 95 10 selling the product, did you?

 95 11 A. I don't believe so.

 95 12 Q. That wasn't part of your presentations you

 95 13 made when you were training people on how to use the

 95 14 Combat Arms Earplug, was it?

 95 15 A. No.

 95 16 Q. Nobody told you when you were getting

 95 17 trained on how to use the earplug, the fact in that

 95 18 sentence, did they?

 95 19 A. I don't remember that.

 95 20 Q. It's not in any of your sales materials,

Re: [95:9-95:22]

Def Obj Foundation (602); Relevance 

(401, 402); Argumentative (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 91 of 303
McNamara 27

 95 21 is it?

 95 22 A. I don't believe so.

95:23 - 95:23 McNamara

 95 23 Q. Should it be?

Re: [95:23-95:23]

Def Obj Foundation (602); Vague, 

Argumentative (611, 403); Relevance 

(401, 402)

OVERRULED

96:2 - 96:2 McNamara

 96 2 A. I -- I don't know.

Re: [96:2-96:2]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403); Relevance 

(401, 402)

OVERRULED

96:3 - 96:3 McNamara

 96 3 BY MR. TRACEY:

96:4 - 96:6 McNamara

 96 4 Q. Well, if Ron Kieper is telling the truth

 96 5 and the goal is to tell the truth to the end user, the

 96 6 Army, shouldn't we tell them this?

Re: [96:4-96:6]

Def Obj Foundation (602); Vague; 

Argumentative, Misstates (611, 403); 

Relevance (401, 402)

OVERRULED

96:10 - 96:10 McNamara

 96 10 A. I'm not -- I'm not sure.

Re: [96:10-96:10]

Def Obj Foundation (602); Vague; 

Argumentative, Misstates (611, 403); 

Relevance (401, 402)

OVERRULED

96:11 - 96:11 McNamara

 96 11 BY MR. TRACEY:

96:12 - 96:13 McNamara

 96 12 Q. Well, how come? I thought we were

 96 13 supposed to tell them the truth.

Re: [96:12-96:13]

Def Obj Foundation (602); Vague; 

Argumentative; Misstates; Compound; 

Asked (611, 403)

SUSTAINED

96:17 - 96:18 McNamara

 96 17 A. I'm not sure. I'm not sure what -- what

 96 18 the premise was on that. Was it --

Re: [96:17-96:18]

Def Obj Foundation (602); Vague; 

Argumentative; Misstates; Compound; 

Asked (611, 403)

OVERRULED

96:19 - 96:19 McNamara

 96 19 BY MR. TRACEY:

96:20 - 96:22 McNamara

 96 20 Q. What does that mean?

 96 21 A. Was it one subject? Was it -- I don't

 96 22 know.

Re: [96:20-96:22]

Def Obj Foundation (602)

OVERRULED

96:23 - 97:2 McNamara

 96 23 Q. Well, it says it's multiple subjects, if

 96 24 we are just going to use the English language properly

Re: [96:23-97:2]

Def Obj Compound; Argumentative 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 92 of 303
McNamara 28

 97 1 understood, right?

 97 2 A. Yeah.

97:5 - 97:7 McNamara

 97 5 Q. It says "subjects'", "s," that's multiple,

 97 6 right?

 97 7 A. That's what it appears.

Re: [97:5-97:7]

Def Obj Foundation (602)

OVERRULED

97:8 - 97:9 McNamara

 97 8 Q. So -- so should that have been disclosed

 97 9 to the military?

Re: [97:8-97:9]

Def Obj Foundation (602); Vague; 

Argumentative; Misstates (611, 403)

OVERRULED

97:13 - 97:13 McNamara

 97 13 A. I don't know.

Re: [97:13-97:13]

Def Obj Foundation (602); Vague; 

Argumentative; Misstates (611, 403)

OVERRULED

97:14 - 97:14 McNamara

 97 14 BY MR. TRACEY:

97:15 - 97:16 McNamara

 97 15 Q. You still don't know?

 97 16 A. Don't know.

Re: [97:15-97:16]

Def Obj Foundation (602)

SUSTAINED

98:21 - 98:23 McNamara

 98 21 Q. And if people in corporations make

 98 22 decisions to not -- to not disclose the truth about a

 98 23 product, we have problems, don't we?

Re: [98:21-98:23]

Def Obj Vague; Argumentative (611, 

403); Foundation (602)

SUSTAINED

99:2 - 99:2 McNamara

 99 2 A. Not really.

Re: [99:2-99:2]

Def Obj Vague; Argumentative (611, 

403); Foundation (602)

SUSTAINED

99:3 - 99:3 McNamara

 99 3 BY MR. TRACEY:

99:4 - 99:4 McNamara

 99 4 Q. Really? That's fine with you?

Re: [99:4-99:4]

Def Obj Vague; Argumentative; 

Misstates (611, 403); Foundation (602)

SUSTAINED

99:7 - 99:7 McNamara

 99 7 A. That's -- I don't make those decisions.

Re: [99:7-99:7]

Def Obj Vague; Argumentative; 

Misstates (611, 403); Foundation (602)

SUSTAINED

100:14 - 100:24 McNamara

 100 14 Q. Let's read the next sentence and see if

 100 15 the ambi- -- ambiguities continue.

 100 16 The next sentence says: "When the inward

 100 17 pressure on the UltraFit Plug was released, the Combat

 100 18 Arms' flanges tended to return to their original shape

 100 19 and this could loosen the plug, sometimes

Re: [100:14-100:24]

Def Obj Foundation (602); 

Argumentative (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 93 of 303
McNamara 29

 100 20 imperceptibly to the subject."

 100 21 Do you see that?

 100 22 A. I do.

 100 23 Q. Is that the first time you're learning

 100 24 that fact?

101:3 - 101:10 McNamara

 101 3 A. I don't remember.

 101 4 BY MR. TRACEY:

 101 5 Q. Did you -- when you were selling the

 101 6 product to the military for a decade, did you tell

 101 7 them in your training that the flanges would return to

 101 8 their original shape, loosening the plug in a way

 101 9 that's imperceptible to the subject?

 101 10 A. No.

Re: [101:3-101:10]

Def Obj Foundation (602)

OVERRULED

101:11 - 101:11 McNamara

 101 11 Q. Should you have disclosed that to them?

Re: [101:11-101:11]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

OVERRULED

101:14 - 101:14 McNamara

 101 14 A. If -- I'm not sure.

Re: [101:14-101:14]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

OVERRULED

101:15 - 101:15 McNamara

 101 15 BY MR. TRACEY:

101:16 - 101:18 McNamara

 101 16 Q. If you were a soldier, would you want to

 101 17 know that the flanges could imperceptibly loosen the

 101 18 plug?

Re: [101:16-101:18]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

SUSTAINED

101:22 - 101:22 McNamara

 101 22 A. I'm -- I'm not sure.

Re: [101:22-101:22]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

SUSTAINED

101:23 - 101:23 McNamara

 101 23 BY MR. TRACEY:

101:24 - 102:11 McNamara

 101 24 Q. You don't think a soldier who is on the

 102 1 battlefield might want to know that this particular

 102 2 plug, the Combat Arms, would loosen imperceptibly?

 102 3 You know what "imperceptibly" means, right?

 102 4 A. Yes.

 102 5 Q. What does that mean?

 102 6 A. It -- it -- you know, it -- it can come

Re: [101:24-102:11]

Def Obj Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 94 of 303
McNamara 30

 102 7 out.

 102 8 Q. Without him knowing?

 102 9 A. Yes.

 102 10 Q. Or her? Without the user knowing --

 102 11 A. Yes.

102:12 - 102:14 McNamara

 102 12 Q. -- that it's loosening?

 102 13 You don't -- you don't find that fact to

 102 14 be particularly relevant to a soldier?

Re: [102:12-102:14]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

OVERRULED

102:17 - 102:17 McNamara

 102 17 A. If it's fitted properly.

Re: [102:17-102:17]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403)

OVERRULED

102:18 - 102:18 McNamara

 102 18 BY MR. TRACEY:

102:19 - 102:23 McNamara

 102 19 Q. Pardon me?

 102 20 A. If it's fitted properly.

 102 21 Q. What does that mean?

 102 22 A. You ins- -- you insert the plug and -- and

 102 23 make sure that the -- it's fitted correctly.

Re: [102:19-102:23]

Def Obj Foundation (602)

OVERRULED

102:24 - 103:2 McNamara

 102 24 Q. And what does that mean? How do you fit

 103 1 it correctly so that it doesn't -- it doesn't press

 103 2 against the ear and return to its original shape?

Re: [102:24-103:2]

Def Obj Foundation (602); Compound 

(611, 403)

OVERRULED

103:5 - 103:11 McNamara

 103 5 Q. How does that work? Tell me that.

 103 6 A. Well, when you insert the plug, then

 103 7 you -- you check it to make sure that it does not come

 103 8 out during the fitting of the plug.

 103 9 Q. And how -- how do you do that?

 103 10 A. When you put it in, you take it and make

 103 11 sure that it -- it does not come out.

Re: [103:5-103:11]

Def Obj Foundation (602)

OVERRULED

103:12 - 103:13 McNamara

 103 12 Q. How do you know whether the flanges are

 103 13 returning to their original shape?

Re: [103:12-103:13]

Def Obj Foundation (602); Vague (611, 

403)

OVERRULED

103:16 - 103:18 McNamara

 103 16 A. I don't know.

 103 17 BY MR. TRACEY:

 103 18 Q. Do you know who does know?

Re: [103:16-103:18]

Def Obj Foundation (602); Vague (611, 

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 95 of 303
McNamara 31

103:21 - 103:21 McNamara

 103 21 A. I do not know.

Re: [103:21-103:21]

Def Obj Foundation (602); Vague (611, 

403)

OVERRULED

104:15 - 104:18 McNamara

 104 15 Q. Now, you sold this product and represented

 104 16 that the NRR was 22 for over a decade, didn't you, in

 104 17 the steady state position?

 104 18 A. Yes.

Re: [104:15-104:18]

Def Obj Foundation (602)

OVERRULED

104:19 - 104:20 McNamara

 104 19 Q. How did you tell the soldiers in your

 104 20 training materials how to put the plug in their ear?

Re: [104:19-104:20]

Def Obj Vague (611, 403); 3M MIL 

No. 15

OVERRULED

104:23 - 104:24 McNamara

 104 23 A. How did I or how was the literature

 104 24 produced?

Re: [104:23-104:24]

Def Obj Vague (611, 403); 3M MIL 

No. 15

OVERRULED

104:25 - 105:7 McNamara

 105 1 BY MR. TRACEY:

 105 2 Q. Are there -- is it a different answer

 105 3 whether it's you or the literature?

 105 4 A. I mean, I don't know.

 105 5 Q. You don't know whether you -- you gave

 105 6 different instructions than the literature?

 105 7 A. No. I followed the literature.

105:8 - 105:11 McNamara

 105 8 Q. Okay. So you followed the literature.

 105 9 Tell me what you told the end users when you went to

 105 10 the bases and did your training on how to fit the

 105 11 Combat Arms Earplug. What did you tell them?

Re: [105:8-105:11]

Def Obj Misstates (611, 403); 3M MIL 

No. 15

OVERRULED

105:15 - 105:16 McNamara

 105 15 A. The soldiers being the individual

 105 16 soldiers?

Re: [105:15-105:16]

Def Obj Misstates (611, 403); 3M MIL 

No. 15

OVERRULED

105:17 - 105:17 McNamara

 105 17 BY MR. TRACEY:

105:18 - 105:21 McNamara

 105 18 Q. Sorry. Or the management, yeah. I think

 105 19 you told me end users were sometimes in the room,

 105 20 right?

 105 21 A. Yeah, yeah.

Re: [105:18-105:21]

Def Obj 3M MIL No. 15; Misstates 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 96 of 303
McNamara 32

106:14 - 106:15 McNamara

 106 14 Q. So I want you to tell the jury what you

 106 15 told them when you trained them?

Re: [106:14-106:15]

Def Obj 3M MIL No. 15; Misstates 

(611, 403)

OVERRULED

106:18 - 106:22 McNamara

 106 18 A. I would -- I would represent the product

 106 19 and I would show them how to fit them.

 106 20 BY MR. TRACEY:

 106 21 Q. Yeah. And I want to know what you showed

 106 22 them.

Re: [106:18-106:22]

Def Obj 3M MIL No. 15; Misstates 

(611, 403)

OVERRULED

107:1 - 107:2 McNamara

 107 1 THE WITNESS: Okay.

 107 2 BY MR. TRACEY:

107:3 - 107:16 McNamara

 107 3 Q. Did you -- let me -- let me try an easier

 107 4 question.

 107 5 You see those words that are highlighted

 107 6 in yellow on the screen?

 107 7 A. Yes.

 107 8 Q. Did you use those words when you were

 107 9 doing your training?

 107 10 A. I don't remember.

 107 11 Q. Have you ever -- have you ever seen any

 107 12 sales or training material where when you -- when you

 107 13 trained somebody on how to use the Combat Arms plug,

 107 14 those words are on the materials?

 107 15 A. I don't -- I don't remember these words

 107 16 being on the -- the material.

Re: [107:3-107:16]

Def Obj 3M MIL No. 15; Foundation 

(602)

OVERRULED

107:17 - 107:20 McNamara

 107 17 Q. Did you tell, when you were selling the

 107 18 product, that the only way we got an NRR of 22 was by

 107 19 folding back the flanges so that we got a longer stem

 107 20 and got a deeper insertion?

Re: [107:17-107:20]

Def Obj Foundation (602); 

Argumentative; Misstates (611, 403)

OVERRULED

108:1 - 108:1 McNamara

 108 1 A. No.

Re: [108:1-108:1]

Def Obj Foundation (602); 

Argumentative; Misstates (611, 403)

OVERRULED

108:2 - 108:2 McNamara

 108 2 BY MR. TRACEY:

108:11 - 108:14 McNamara

 108 11 Q. Okay. The truth is, if we believe what

Re: [108:11-108:14]

Def Obj Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 97 of 303
McNamara 33

 108 12 Ron Kieper told Elliott Berger, the only way you got

 108 13 an NRR of 22 -- your company, not you, Mr. McNamara --

 108 14 got an NRR of 22 is by folding back the flanges.

108:17 - 108:17 McNamara

 108 17 Q. Right?

Re: [108:17-108:17]

Def Obj Foundation (602)

SUSTAINED

108:20 - 109:1 McNamara

 108 20 A. I was not aware.

 108 21 BY MR. TRACEY:

 108 22 Q. I understand you weren't aware and that

 108 23 you are learning it right now for the very first time,

 108 24 right?

 109 1 A. That I can remember.

Re: [108:20-109:1]

Def Obj Foundation (602)

SUSTAINED

109:2 - 109:6 McNamara

 109 2 Q. Yes.

 109 3 If what's on the page is true, that the

 109 4 way your company got an NRR of 22 is by folding back

 109 5 the flanges, shouldn't the military have been told

 109 6 that fact?

Re: [109:2-109:6]

Def Obj Foundation (602); Misstates; 

Vague; Argumentative (611, 403)

OVERRULED

109:10 - 109:16 McNamara

 109 10 A. It's -- it was not my responsibility to

 109 11 show them the facts, but the Noise Reduction Rating

 109 12 was 22. That's what I did -- I gave them.

 109 13 BY MR. TRACEY:

 109 14 Q. I understand that's what you gave them.

 109 15 Weren't they entitled to know how your company got the

 109 16 22?

Re: [109:10-109:16]

Def Obj Foundation (602); Misstates; 

Vague; Argumentative (611, 403)

OVERRULED

109:19 - 109:19 McNamara

 109 19 A. I don't believe so.

Re: [109:19-109:19]

Def Obj Foundation (602); Misstates; 

Vague; Argumentative (611, 403)

OVERRULED

110:3 - 110:3 McNamara

 110 3 BY MR. TRACEY:

110:4 - 110:9 McNamara

 110 4 Q. Have you ever seen a document in the

 110 5 history of marketing or selling the Combat Arms

 110 6 Earplug where your company told the world or the

 110 7 military that the only way we got an NRR of 22 is by

 110 8 folding back the flanges?

 110 9 A. I don't think so.

Re: [110:4-110:9]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 98 of 303
McNamara 34

110:10 - 110:12 McNamara

 110 10 Q. And you don't think the U.S. Army and the

 110 11 end user, the soldier, the American combat soldier, is

 110 12 entitled to know that information?

Re: [110:10-110:12]

Def Obj Foundation (602); Vague; 

Misstates; Argumentative (611, 403)

SUSTAINED as to “the American 

combat soldier”

OVERRULED in all other respects

110:15 - 110:15 McNamara

 110 15 A. I don't know.

Re: [110:15-110:15]

Def Obj Foundation (602); Vague; 

Misstates; Argumentative (611, 403)

OVERRULED

115:23 - 117:1 McNamara

 115 23 Q. Now, this is a document that we got when

 115 24 we subpoenaed your files, correct?

 116 1 A. Correct.

 116 2 Q. Now, is this -- was this on a laptop?

 116 3 Where was this?

 116 4 A. This was on a laptop.

 116 5 Q. So this was -- you had this

 116 6 electronically?

 116 7 A. Yes.

 116 8 Q. Okay. And what does ADS mean?

 116 9 A. Atlantic Diving Supply.

 116 10 Q. Okay. What is that, Atlantic Diving

 116 11 Supply?

 116 12 A. It's a distributor.

 116 13 Q. Okay. So in August of 2004, you went to a

 116 14 distributor and -- and -- and you made this

 116 15 presentation?

 116 16 A. Correct.

 116 17 Q. And this obviously -- it's your name on

 116 18 it. It says: "Tim McNamara, Manager Military Sales,

 116 19 the Aearo Company," correct?

 116 20 A. Correct.

 116 21 Q. And by this time you had been -- you had

 116 22 been selling the Combat Arms Earplug for five years,

 116 23 correct?

 116 24 A. I don't remember how long, but, yeah,

 117 1 about five -- five years.

117:2 - 117:4 McNamara

 117 2 Q. Okay. I think the record is going to

 117 3 reflect the first sales were in August of 1999?

 117 4 A. Yeah.

Re: [117:2-117:4]

Def Obj Misstates (611, 403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 99 of 303
McNamara 35

117:21 - 118:16 McNamara

 117 21 Q. Okay. If you flip over, you've got a --

 117 22 by the way, is this a PowerPoint? Is this done on a

 117 23 screen or...?

 117 24 A. Yes --

 118 1 Q. Okay.

 118 2 A. -- a screen.

 118 3 Q. And when you would go to these

 118 4 distributors and you would -- you would put it on a

 118 5 screen, did you also make hard copies for everybody to

 118 6 follow along?

 118 7 A. I believe so, yes. I -- I would leave --

 118 8 I would leave the hard copy in the PowerPoint

 118 9 format --

 118 10 Q. Yeah.

 118 11 A. -- document.

 118 12 Q. And -- and so -- so somebody had something

 118 13 with them when you left that they could refer to to

 118 14 remind them about what it was that Tim McNamara told

 118 15 us?

 118 16 A. Yes.

119:1 - 119:10 McNamara

 119 1 Q. Okay. We'll get to that in a minute.

 119 2 All right. In any event, so -- so this

 119 3 is -- this is a hard copy of -- of your information.

 119 4 It says "Aearo Company." You've got E-A-R, AO Safety

 119 5 and Peltor Communications. Those are the different

 119 6 divisions of Aearo?

 119 7 A. Correct.

 119 8 Q. And you -- as you have told us earlier,

 119 9 you are selling safety devices, right?

 119 10 A. Correct.

119:11 - 120:1 McNamara

 119 11 Q. That's your phone number here in

 119 12 Indianapolis?

 119 13 A. Yes.

 119 14 Q. And then a Barrie, Canada number, an 800

 119 15 number for the Canadians, right?

 119 16 A. Yes.

Re: [119:11-120:1]

Def Obj Relevance (401, 402); Privacy

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 100 of 303
McNamara 36

 119 17 Q. But you -- were you in Atlanta when you

 119 18 were doing this, or do you know?

 119 19 A. No. I was in -- I believe I was in

 119 20 Virginia Beach.

 119 21 Q. Okay. You -- you say that you've got

 119 22 customer service, product folders, and price lists and

 119 23 product training, and it's that last one you and I are

 119 24 going to focus on for a second, okay?

 120 1 A. Okay.

120:2 - 121:4 McNamara

 120 2 Q. The next page actually says "product

 120 3 training," and then we have two different products

 120 4 mentioned there. Under the first bullet -- bullet

 120 5 point, Classic earplug and the Combat Arms, correct?

 120 6 A. Correct.

 120 7 Q. Be fair to say that the information in

 120 8 your product training PowerPoint was information that

 120 9 came from your corporate office?

 120 10 A. Correct.

 120 11 Q. All right. Flip over to the page ending

 120 12 in 008 that says "Product Training - EAR," and you'll

 120 13 see the Combat Arms Earplug.

 120 14 Do you see that?

 120 15 A. Yes.

 120 16 Q. Now, you point out to the -- to the

 120 17 audience that this is a double-sided product, which it

 120 18 is, right?

 120 19 A. Yes.

 120 20 Q. You have a picture of it there on the --

 120 21 on the camera or on the screen, right?

 120 22 A. Yes.

 120 23 Q. Flanges are not folded back, are they?

 120 24 A. They are not.

 121 1 Q. If you flip over, you'll see the next

 121 2 page has a picture of the Combat Arms now in the ear,

 121 3 doesn't it?

 121 4 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 101 of 303
McNamara 37

121:5 - 121:8 McNamara

 121 5 Q. And -- and this is a -- an illustration

 121 6 that you used to train people about how to insert the

 121 7 Combat Arms Earplug?

 121 8 A. Correct.

Re: [121:5-121:8]

Def Obj 3M MIL No. 15; Relevance 

(401, 402); Prejudice (403)

OVERRULED

121:9 - 121:11 McNamara

 121 9 Q. And what you've got on this

 121 10 illustration -- this is -- this actually came out of

 121 11 the marketing department of your company, didn't it?

Re: [121:9-121:11]

Def Obj Foundation (602)

OVERRULED

121:13 - 121:13 McNamara

 121 13 BY THE WITNESS:

121:14 - 121:18 McNamara

 121 14 A. This was not. I believe, if I remember,

 121 15 yeah, the -- it was -- I believe it came from CHPPM.

 121 16 There is CHPPM's name on it, but I don't know who --

 121 17 Q. Look at the next page.

 121 18 A. I don't know who produced it.

Re: [121:14-121:18]

Def Obj Foundation (602)

OVERRULED

121:19 - 121:22 McNamara

 121 19 Q. That's all right.

 121 20 Look at two pages later. Do you see where

 121 21 it says "Combat Arms Earplug," "E-A-R" at the top?

 121 22 A. Yes.

121:23 - 122:1 McNamara

 121 23 Q. That's an identical illustration, isn't

 121 24 it?

 122 1 A. Yes.

Re: [121:23-122:1]

Def Obj Misstates (611, 403)

OVERRULED

122:12 - 122:17 McNamara

 122 12 Q. And the words at the top next to the two

 122 13 ears with the "insert yellow" and "insert olive drab,"

 122 14 those words are identical on both slides, aren't they?

 122 15 A. Yes.

 122 16 Q. All right. So let's stay on the one that

 122 17 has CHPPM at the bottom for a second.

122:18 - 122:20 McNamara

 122 18 What you're -- what you're doing when you

 122 19 are training the distributor is the proper way to

 122 20 insert the Combat Arms Earplug, correct?

Re: [122:18-122:20]

Def Obj Misstates (611, 403); 3M MIL 

No. 15

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 102 of 303
McNamara 38

122:21 - 122:22 McNamara

 122 21 MS. ELIZABETH: Objection; form.

 122 22 BY THE WITNESS:

122:23 - 122:23 McNamara

 122 23 A. Yes.

Re: [122:23-122:23]

Def Obj Misstates (611, 403); 3M MIL 

No. 15

OVERRULED

122:24 - 123:1 McNamara

 122 24 BY MR. TRACEY:

 123 1 Q. And what you tell them when you train them

123:1 - 123:16 McNamara

 123 1 Q. And what you tell them when you train them

 123 2 is -- is you use the words on this page: "Insert

 123 3 yellow plugs for weapons fire in dismounted mode,"

 123 4 true?

 123 5 A. Correct.

 123 6 Q. And then you say: "Insert olive drab

 123 7 plugs for steady state noise in and around aircraft

 123 8 and noisy vehicles and watercraft," right?

 123 9 A. Correct.

 123 10 Q. There is not one word on this slide about

 123 11 folding back the flanges to get an NRR of 22, is

 123 12 there?

 123 13 A. No.

 123 14 Q. Not one word about folding back the

 123 15 flanges under any conditions, is there?

 123 16 A. No.

Re: [123:1-123:16]

Def Obj 3M MIL No. 15

OVERRULED

123:17 - 123:23 McNamara

 123 17 Q. Flip over to the -- to the slide with your

 123 18 company logo on it.

 123 19 Is there -- by the way, do you know why

 123 20 you have two -- two illustrations, one with CHPPM at

 123 21 the bottom and one with your company logo at the top

 123 22 that are identical?

 123 23 A. I don't.

123:24 - 124:5 McNamara

 123 24 Q. Okay. There is nothing on this slide

 124 1 about folding back the flanges so that you get the

 124 2 results that we got when we tested the product?

 124 3 MS. ELIZABETH: Objection; form.

Re: [123:24-124:5]

Def Obj Foundation (602); 

Argumentative (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 103 of 303
McNamara 39

 124 4 BY THE WITNESS:

 124 5 A. Correct.

124:6 - 124:6 McNamara

 124 6 BY MR. TRACEY:

124:7 - 124:15 McNamara

 124 7 Q. Now, you do tell them on this packet -- on

 124 8 this presentation, when you are training people about

 124 9 the proper use of the product, that the olive drab end

 124 10 gives an NRR of 22 decibels, don't you?

 124 11 A. Yes.

 124 12 Q. What you don't tell them, what you don't

 124 13 reveal to them, is how your company got that NRR,

 124 14 right?

 124 15 A. Correct.

Re: [124:7-124:15]

Def Obj 3M MIL No. 15; Relevance 

(401, 402); Prejudice (403)

OVERRULED

125:3 - 125:4 McNamara

 125 3 Q. Do you feel like not disclosing how you

 125 4 got the 22 is honest?

Re: [125:3-125:4]

Def Obj Foundation (602); Relevance 

(401, 402); Vague; Argumentative (611, 

403)

OVERRULED

125:7 - 125:10 McNamara

 125 7 A. Yes.

 125 8 BY MR. TRACEY:

 125 9 Q. You do.

 125 10 What is it about it that's honest?

Re: [125:7-125:10]

Def Obj Foundation (602); Relevance 

(401, 402); Vague; Argumentative (611, 

403)

OVERRULED

125:13 - 125:13 McNamara

 125 13 A. It's a published noise reduction rating.

Re: [125:13-125:13]

Def Obj Foundation (602); Relevance 

(401, 402); Vague; Argumentative (611, 

403)

OVERRULED

125:14 - 125:14 McNamara

 125 14 BY MR. TRACEY:

125:15 - 126:3 McNamara

 125 15 Q. Okay. Published where?

 125 16 A. From the -- that meets ANSI standards.

 125 17 Q. Hmm. Did you know, did Elliott Berger

 125 18 submit the testing that was done to peer review?

 125 19 A. I don't know.

 125 20 Q. Have you ever seen the tests published in

 125 21 the peer-reviewed literature?

 125 22 A. I have not.

 125 23 Q. Have you ever seen anywhere in anything in

Re: [125:15-126:3]

Def Obj Foundation (602); Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 104 of 303
McNamara 40

 125 24 the world where Elliott Berger and Ron Kieper revealed

 126 1 that the way they got the 22 was by folding back the

 126 2 flanges?

 126 3 A. No.

126:4 - 126:6 McNamara

 126 4 Q. And so your testimony here in this case

 126 5 when you look the jury in the eye is that concealing

 126 6 how you got the 22 is honest behavior?

Re: [126:4-126:6]

Def Obj Argumentative; Misstates 

(611, 403); Foundation (602)

OVERRULED

126:9 - 126:10 McNamara

 126 9 A. It is the noise reduction rating of 22

 126 10 that I go by.

Re: [126:9-126:10]

Def Obj Argumentative; Misstates 

(611, 403); Foundation (602)

OVERRULED

126:11 - 126:11 McNamara

 126 11 BY MR. TRACEY:

126:12 - 126:13 McNamara

 126 12 Q. No matter how you got it, how you got the

 126 13 22 is not relative to McNamara?

Re: [126:12-126:13]

Def Obj Argumentative; Misstates; 

Compound (611, 403); Foundation 

(602)

OVERRULED

126:16 - 126:16 McNamara

 126 16 A. No.

Re: [126:16-126:16]

Def Obj Argumentative; Misstates; 

Compound (611, 403); Foundation 

(602)

OVERRULED

126:17 - 126:17 McNamara

 126 17 BY MR. TRACEY:

126:18 - 126:19 McNamara

 126 18 Q. Do you think it's relevant to the people

 126 19 using the plug how you got the 22?

Re: [126:18-126:19]

Def Obj Foundation (602); 701

OVERRULED

126:22 - 126:22 McNamara

 126 22 A. No.

Re: [126:22-126:22]

Def Obj Foundation (602); 701

OVERRULED

126:23 - 126:23 McNamara

 126 23 BY MR. TRACEY:

126:24 - 127:3 McNamara

 126 24 Q. No.

 127 1 It could be a 2, it could be a 10, it

 127 2 could be a 50, doesn't make any difference to the end

 127 3 user?

Re: [126:24-127:3]

Def Obj Foundation (602); Vague (611, 

403); 701

OVERRULED

127:6 - 127:6 McNamara

 127 6 A. No.

Re: [127:6-127:6]

Def Obj Foundation (602); Vague (611, 

403); 701

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 105 of 303
McNamara 41

127:7 - 127:7 McNamara

 127 7 BY MR. TRACEY:

127:8 - 127:10 McNamara

 127 8 Q. When you read the -- when you heard about

 127 9 the US Attorney's investigation, did it look like they

 127 10 cared about it?

Re: [127:8-127:10]

Def Obj Foundation (602); 

Argumentative (611, 403)

SUSTAINED

127:13 - 127:16 McNamara

 127 13 A. I don't know.

 127 14 BY MR. TRACEY:

 127 15 Q. Can you understand how my clients might be

 127 16 angered by that kind of response?

Re: [127:13-127:16]

Def Obj Foundation (602); 

Argumentative (611, 403)

SUSTAINED

127:19 - 127:19 McNamara

 127 19 A. No.

Re: [127:19-127:19]

Def Obj Foundation (602); 

Argumentative (611, 403)

SUSTAINED

127:20 - 127:20 McNamara

 127 20 BY MR. TRACEY:

127:21 - 127:22 McNamara

 127 21 Q. You can't, you can't understand why people

 127 22 would be angered by that kind of response?

Re: [127:21-127:22]

Def Obj Foundation (602); 

Argumentative; Asked (611, 403)

SUSTAINED

127:24 - 128:1 McNamara

 127 24 BY THE WITNESS:

 128 1 A. I don't know.

Re: [127:24-128:1]

Def Obj Foundation (602); 

Argumentative; Asked (611, 403)

SUSTAINED

131:18 - 131:19 McNamara

 131 18 Flip over to Page 28 of your presentation

 131 19 or subpoenaed documents.

132:1 - 133:4 McNamara

 132 1 THE WITNESS: Okay. There it goes. I've got

 132 2 it. I've got it. I've got it. Holy smokes.

 132 3 BY MR. TRACEY:

 132 4 Q. What are we looking at?

 132 5 A. A picture of the single -- one pair of the

 132 6 Combat Arms Earplugs in a -- with a case.

 132 7 Q. Okay. That's your company that you work

 132 8 for, that's EAR, right, E-A-R?

 132 9 A. Yes.

 132 10 Q. A division of Aearo?

 132 11 A. It is.

 132 12 Q. Right?

 132 13 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 106 of 303
McNamara 42

 132 14 Q. Okay. That -- that -- this package says:

 132 15 "Green end constant protection against constant noise,

 132 16 NRR of 22," doesn't it?

 132 17 A. Yes.

 132 18 Q. Flip over to the next page. This is a

 132 19 blister pack, right?

 132 20 A. It is.

 132 21 Q. At some point you-all started selling the

 132 22 product in these blister packs, right?

 132 23 A. Yes.

 132 24 Q. And on this document, this says -- it

 133 1 says: "The blister pack includes one pair of

 133 2 dual-ended Combat Arms Earplugs, a carrying case and

 133 3 an instruction guide," right?

 133 4 A. It does.

133:5 - 133:8 McNamara

 133 5 Q. If you flip over to the next page, we see

 133 6 a -- a soldier with a helmet and a -- actually, those

 133 7 are Version 3 earplugs, aren't they?

 133 8 A. Yes.

Re: [133:5-133:8]

Def Obj Relevance (401, 402)

SUSTAINED

133:9 - 133:12 McNamara

 133 9 Q. So let's flip over to the next page ending

 133 10 in 31 because then we are back to the Version 2,

 133 11 aren't we?

 133 12 A. We are.

133:13 - 133:15 McNamara

 133 13 Q. And that soldier has the yellow end, which

 133 14 means he is being protected ostensibly against impulse

 133 15 noise, right?

Re: [133:13-133:15]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

133:18 - 133:18 McNamara

 133 18 A. It appears to be, yes.

Re: [133:18-133:18]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

133:19 - 133:19 McNamara

 133 19 BY MR. TRACEY:

133:20 - 133:21 McNamara

 133 20 Q. Is that soldier properly fitted with the

 133 21 Combat Arms Earplug in that picture?

Re: [133:20-133:21]

Def Obj Foundation (602)

OVERRULED

133:24 - 134:4 McNamara

 133 24 A. I believe so.

Re: [133:24-134:4]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 107 of 303
McNamara 43

 134 1 BY MR. TRACEY:

 134 2 Q. That's the way you would have told a

 134 3 soldier to insert the Combat Arms Earplug?

 134 4 A. Yes.

135:15 - 137:4 McNamara

 135 15 Q. Okay. So -- so how would you know? If

 135 16 you were doing this and you were training and you were

 135 17 teaching, what would you be telling this soldier or

 135 18 his commander about the proper way to fit this plug?

 135 19 A. Well, I mean, you -- you bring the ear --

 135 20 ear up to open the pinna, and then you insert the plug

 135 21 as -- as -- as -- as deep as you can. But you don't

 135 22 want to hurt them.

 135 23 Q. Okay.

 135 24 A. And then check the seal to make sure that

 136 1 it does not come out.

 136 2 Q. Okay.

 136 3 A. Just tug -- you know, tug it just very

 136 4 little, and -- and that should be the -- the -- it

 136 5 should be seated properly.

 136 6 Q. Okay. You didn't mention folding back the

 136 7 flanges, right?

 136 8 A. No.

 136 9 Q. Because that -- you weren't taught to

 136 10 mention that, right?

 136 11 A. No.

 136 12 Q. Okay. And so when you were doing the

 136 13 training, there would be no discussion, as you've told

 136 14 us earlier, about folding back the flanges to get a

 136 15 proper seal, right?

 136 16 A. Correct.

 136 17 Q. Yeah.

 136 18 And so since you weren't told that you --

 136 19 you weren't taught it, you didn't teach it yourself?

 136 20 A. Correct.

 136 21 Q. And so when you were teaching it, you

 136 22 would have told this soldier in this picture to do it

 136 23 exactly the way you just described it?

 136 24 A. Yes.

Re: [135:15-137:4]

Def Obj Foundation (602); Misstates 

(611, 403); Prejudice (403); 701; 3M 

MIL No. 15

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 108 of 303
McNamara 44

 137 1 Q. Yes. And tell me again how we know if

 137 2 it's seated properly?

 137 3 A. You insert it as -- as far as you can

 137 4 until there is discomfort.

137:5 - 137:6 McNamara

 137 5 Q. Okay. And that should work, right, it

 137 6 should protect them?

Re: [137:5-137:6]

Def Obj Vague; Argumentative (611, 

403); Foundation (602); 3M MIL No. 

15

OVERRULED

137:9 - 137:9 McNamara

 137 9 A. Yes.

Re: [137:9-137:9]

Def Obj Vague; Argumentative (611, 

403); Foundation (602); 3M MIL No. 

15

OVERRULED

138:9 - 138:9 McNamara

 138 9 A. I don't remember seeing it.

Re: [138:9-138:9]

Def Obj Foundation (602); 

Argumentative (611, 403); No question

OVERRULED

138:22 - 139:2 McNamara

 138 22 You yourself have never seen a company

 138 23 document or -- or brochure, sales sheet, where they

 138 24 illustrated the Combat Arms Version 2 with the flanges

 139 1 folded back?

 139 2 A. Not that I can remember.

Re: [138:22-139:2]

Def Obj Foundation (602)

OVERRULED

139:3 - 139:4 McNamara

 139 3 Q. No. And that would be consistent with how

 139 4 you were trained, which was not to fold them back?

Re: [139:3-139:4]

Def Obj Misstates (611, 403); 3M MIL 

No. 15

OVERRULED

139:7 - 139:7 McNamara

 139 7 A. I believe so.

Re: [139:7-139:7]

Def Obj Misstates (611, 403); 3M MIL 

No. 15

OVERRULED

139:15 - 139:15 McNamara

 139 15 BY MR. TRACEY:

139:16 - 139:24 McNamara

 139 16 Q. And -- and do you agree with me that when

 139 17 you are doing the teaching, when you are out there and

 139 18 you are teaching these soldiers and these -- and these

 139 19 managers and these base commanders and these

 139 20 distributors that you've told me about, that -- that

 139 21 nothing is better than an illustration, is it?

 139 22 MS. ELIZABETH: Objection; form, foundation.

 139 23 BY THE WITNESS:

 139 24 A. I don't know.

Re: [139:16-139:24]

Def Obj Foundation (602); Misstates 

(611, 403); 3M MIL No. 15

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 109 of 303
McNamara 45

139:25 - 140:8 McNamara

 140 1 BY MR. TRACEY:

 140 2 Q. Well, you used illustrations, didn't you?

 140 3 A. Yes.

 140 4 Q. We've looked at them?

 140 5 A. Yes.

 140 6 Q. Your company used them to sell the

 140 7 product, didn't they?

 140 8 A. It was an aid, yes.

141:11 - 141:19 McNamara

 141 11 Q. Are you trying to help 3M in this case

 141 12 today?

 141 13 MS. ELIZABETH: Objection; form.

 141 14 BY THE WITNESS:

 141 15 A. I have -- I have no -- no.

 141 16 BY MR. TRACEY:

 141 17 Q. It feels like you are trying to help them

 141 18 to me. You're not?

 141 19 A. No.

Re: [141:11-141:19]

Pltf Obj improper counter designation 

per PTO 64

SUSTAINED

144:1 - 144:3 McNamara

 144 1 Q. You don't work for 3M or Aearo and haven't

 144 2 in over a decade, have you?

 144 3 A. I have not.

Re: [144:1-144:3]

Pltf Obj improper counter designation 

per PTO 64

SUSTAINED

144:22 - 145:24 McNamara

 144 22 Q. Okay. Flip over to Page 34, please, sir.

 144 23 What is this document? Is this a sell

 144 24 sheet?

 145 1 A. Yes. It's a piece of literature, yes.

 145 2 Q. So -- but is this -- is there a technical

 145 3 term for this, like a sell sheet?

 145 4 A. I believe so.

 145 5 Q. Yeah, okay.

 145 6 So I've seen this called a sell sheet, so

 145 7 if I use that term, you are familiar with it?

 145 8 A. Yes.

 145 9 Q. And -- and in big bold letters at the top,

 145 10 all boxed, it says: "Reading this could save your

 145 11 life," doesn't it?

 145 12 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 110 of 303
McNamara 46

 145 13 Q. And this was given to the base commanders

 145 14 and end users, wasn't it?

 145 15 A. I don't remember.

 145 16 Q. Well, what did you use sell sheets for?

 145 17 A. To support the product -- the sales

 145 18 process.

 145 19 Q. Okay.

 145 20 A. I don't remember if this was the exact

 145 21 one.

 145 22 Q. Well, it certainly is one of them, isn't

 145 23 it?

 145 24 A. It is.

146:15 - 146:18 McNamara

 146 15 BY MR. TRACEY:

 146 16 Q. And we've got a picture of a soldier up

 146 17 top. It says "Combat Arms Earplugs," right?

 146 18 A. Correct.

146:19 - 146:22 McNamara

 146 19 Q. And what you're explaining is that this is

 146 20 a very serious document that needs -- that could have

 146 21 lifesaving implications, that's what you tell the end

 146 22 user, don't you?

Re: [146:19-146:22]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

147:1 - 147:1 McNamara

 147 1 A. Yes.

Re: [147:1-147:1]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

147:2 - 147:2 McNamara

 147 2 BY MR. TRACEY:

147:3 - 147:4 McNamara

 147 3 Q. And that is designed to get the attention

 147 4 of the combat soldier, isn't it?

Re: [147:3-147:4]

Def Obj Foundation (602)

OVERRULED

147:7 - 147:7 McNamara

 147 7 A. I believe so.

Re: [147:7-147:7]

Def Obj Foundation (602)

OVERRULED

147:8 - 147:8 McNamara

 147 8 BY MR. TRACEY:

147:9 - 148:9 McNamara

 147 9 Q. Yeah.

 147 10 After you tell them, whoever is looking at

 147 11 this, that "Reading this could save your life," there

 147 12 is then a couple of paragraphs, isn't there?

Re: [147:9-148:9]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 111 of 303
McNamara 47

 147 13 A. Yes.

 147 14 Q. You tell them this is: "More than a

 147 15 hearing protector. The Combat Arms Earplugs not only

 147 16 provide hearing protection, they help provide

 147 17 situational awareness by protecting against concussive

 147 18 disorientation effects with impulse noise (weapons

 147 19 fire, improvised explosive devices, et cetera)."

 147 20 Those are the claims that you make after

 147 21 you tell them that reading this could save their life.

 147 22 True?

 147 23 A. Yes.

 147 24 Q. You go on to say that:

 148 1 "The patented Hear-Through design allows

 148 2 wearers to hear low-level sounds critical to mission

 148 3 safety - conversation, footsteps, rifle bolts,

 148 4 approaching enemies. When needed, the plug-in filter

 148 5 reacts to provide instant protection from high-level

 148 6 noises. It's that easy. It's that quick."

 148 7 That's what you tell them after you tell

 148 8 them that reading this could save their lives?

 148 9 A. That's what it says, yes.

148:10 - 148:12 McNamara

 148 10 Q. The implication, Mr. McNamara, is this is

 148 11 a serious device, a serious protective device that

 148 12 could have lifesaving implications?

Re: [148:10-148:12]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

148:15 - 148:16 McNamara

 148 15 Q. Right?

 148 16 A. It is.

Re: [148:15-148:16]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

148:17 - 148:24 McNamara

 148 17 Q. And then -- and then you have another

 148 18 illustration at the bottom, don't you: "Dual-ended

 148 19 design meets critical protection needs." And we have

 148 20 another illustration of the plug in the ear, right?

 148 21 A. Yes.

 148 22 Q. And is this the proper insertion technique

 148 23 for the Combat Arms Earplug or insertion that we see

 148 24 on the screen?

Re: [148:17-148:24]

Def Obj Foundation (602)

OVERRULED

149:3 - 149:6 McNamara

 149 3 A. It appears so.

Re: [149:3-149:6]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 112 of 303
McNamara 48

 149 4 BY MR. TRACEY:

 149 5 Q. Okay. It's got the green end and the

 149 6 yellow end both inserted the exact same way, right?

149:9 - 149:9 McNamara

 149 9 A. Yes.

Re: [149:9-149:9]

Def Obj Foundation (602)

OVERRULED

149:10 - 149:10 McNamara

 149 10 BY MR. TRACEY:

149:11 - 149:14 McNamara

 149 11 Q. That is what you are disclosing to the

 149 12 world, to the combat soldier whose life may depend on

 149 13 this, is the proper way to insert this plug when they

 149 14 are using the yellow or the green end?

Re: [149:11-149:14]

Def Obj Foundation (602); Misstates; 

Compound; Argumentative (611, 403)

OVERRULED

149:17 - 149:17 McNamara

 149 17 A. Yes.

Re: [149:17-149:17]

Def Obj Foundation (602); Misstates; 

Compound; Argumentative (611, 403)

OVERRULED

149:18 - 149:18 McNamara

 149 18 BY MR. TRACEY:

149:19 - 149:22 McNamara

 149 19 Q. There is no disclosure on this document

 149 20 that in truth and in fact your company tested the

 149 21 green end and the yellow end in different ways, is

 149 22 there?

Re: [149:19-149:22]

Def Obj Foundation (602); Misstates; 

Compound; Argumentative (611, 403)

SUSTAINED as to “in truth and in 

fact.”

OVERRULED in all other respects.

150:1 - 150:1 McNamara

 150 1 A. No.

Re: [150:1-150:1]

Def Obj Foundation (602); Misstates; 

Compound; Argumentative (611, 403)

OVERRULED

152:17 - 152:23 McNamara

 152 17 Q. Do you understand how noise reduction

 152 18 ratings work?

 152 19 A. Basically.

 152 20 Q. Do you understand it to be a scientific

 152 21 fact that an NRR of 11 is actually protective -- that

 152 22 has 90 percent less protection than when you have a

 152 23 NRR of 22?

Re: [152:17-152:23]

Def Obj Foundation (602); 

Argumentative (611, 403)

OVERRULED

153:2 - 153:6 McNamara

 153 2 A. Based on 11 and 22, yes.

 153 3 BY MR. TRACEY:

 153 4 Q. Yeah. So if you're claiming that the

 153 5 product has an NRR of 22 and it actually has an NRR of

 153 6 11, that's 10 percent of the actual protection?

Re: [153:2-153:6]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 113 of 303
McNamara 49

153:9 - 153:21 McNamara

 153 9 A. That is in a steady state noise, yes.

 153 10 BY MR. TRACEY:

 153 11 Q. Yes, yes.

 153 12 Impulse noise is a different animal, isn't

 153 13 it?

 153 14 A. Yes, it is.

 153 15 Q. Yeah.

 153 16 So you -- as I understand your testimony

 153 17 today, you don't believe the combat soldier is

 153 18 entitled to know that the way you tested the product

 153 19 is different than the way you are telling -- and got

 153 20 the 22 is different than the way you are telling them

 153 21 to use the product in the field?

Re: [153:9-153:21]

Def Obj Foundation (602); 

Argumentative; Misstates (611, 403)

OVERRULED

153:24 - 154:1 McNamara

 153 24 Q. Right?

 154 1 A. I don't believe so.

Re: [153:24-154:1]

Def Obj Foundation (602)

OVERRULED

154:2 - 154:5 McNamara

 154 2 Q. Okay. So you don't believe the combat

 154 3 soldier is entitled to know that in truth and in fact

 154 4 he is getting 90 percent less protection than you-all

 154 5 got the way you tested it?

Re: [154:2-154:5]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

154:9 - 154:9 McNamara

 154 9 A. In a steady state form?

Re: [154:9-154:9]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

154:10 - 154:10 McNamara

 154 10 BY MR. TRACEY:

154:11 - 154:18 McNamara

 154 11 Q. Yes.

 154 12 A. Yes.

 154 13 Q. Okay. So let me say it again.

 154 14 You don't believe that the combat soldier

 154 15 is entitled to know that in truth and in fact he has

 154 16 90 percent less protection than represented by you

 154 17 because it was -- it was tested differently than you

 154 18 are telling him to use it?

Re: [154:11-154:18]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

SUSTAINED

154:21 - 154:22 McNamara

 154 21 Q. Right?

 154 22 A. In my opinion, yes.

Re: [154:21-154:22]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 114 of 303
McNamara 50

156:17 - 156:22 McNamara

 156 17 Q. Yeah. So my question is this: You have

 156 18 testified over and over and over again today that the

 156 19 combat soldier is not entitled to know that in truth

 156 20 and in fact the way your company got a 22 was by

 156 21 folding the flanges back, right?

 156 22 A. Yes.

Re: [156:17-156:22]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

SUSTAINED as to “over and over 

and over again.”

OVERRULED in all other respects.

157:1 - 157:4 McNamara

 157 1 Q. So my question -- then the sort of logical

 157 2 questions that flowed from that are the difference

 157 3 between the 22 and 11 is a 90 percent reduction,

 157 4 right? We agreed on this, right?

Re: [157:1-157:4]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

157:7 - 157:7 McNamara

 157 7 A. Basically, yes.

Re: [157:7-157:7]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

157:8 - 157:8 McNamara

 157 8 BY MR. TRACEY:

157:9 - 157:13 McNamara

 157 9 Q. Yeah, basically.

 157 10 And you told the jury, you looked the jury

 157 11 in the eye, you are on the camera, you looked the jury

 157 12 in the eye, and you said, Combat soldier is not

 157 13 entitled to know those facts, right?

Re: [157:9-157:13]

Def Obj Foundation (602); Asked; 

Argumentative (611, 403)

SUSTAINED as to “you looked the 

jury in the eye, you are on the 

camera, you looked the jury in the 

eye, and you said”

OVERRULED in all other respects.

157:17 - 157:18 McNamara

 157 17 A. They're -- I mean, they're entitled to

 157 18 know the effectiveness of the product.

Re: [157:17-157:18]

Def Obj Foundation (602); Asked; 

Argumentative (611, 403)

OVERRULED

157:19 - 157:19 McNamara

 157 19 BY MR. TRACEY:

157:20 - 157:20 McNamara

 157 20 Q. Okay. They weren't told that, were they?

Re: [157:20-157:20]

Def Obj Foundation (602); Asked; 

Vague; Argumentative (611, 403)

OVERRULED

157:23 - 157:23 McNamara

 157 23 A. I don't know.

Re: [157:23-157:23]

Def Obj Foundation (602); Asked; 

Vague; Argumentative (611, 403)

OVERRULED

169:11 - 169:13 McNamara

 169 11 Q. Is there anything in your opinion about

 169 12 your product -- anything negative about a product

 169 13 that -- that shouldn't be concealed from the Army?

Re: [169:11-169:13]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 115 of 303
McNamara 51

169:17 - 169:17 McNamara

 169 17 A. I don't know.

Re: [169:17-169:17]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

SUSTAINED

169:18 - 169:18 McNamara

 169 18 BY MR. TRACEY:

169:19 - 169:20 McNamara

 169 19 Q. Pardon me?

 169 20 A. I don't know.

Re: [169:19-169:20]

Def Obj Foundation (602)

SUSTAINED

169:21 - 170:2 McNamara

 169 21 Q. Can you think of anything that just sort

 169 22 of pops into your mind -- as somebody who sold hearing

 169 23 protection products for 38 years, can you think of

 169 24 anything that is a negative on the product that you

 170 1 believe it would be unethical to conceal from the end

 170 2 user?

Re: [169:21-170:2]

Def Obj Foundation (602); Compound; 

Misstates; Argumentative (611, 403)

SUSTAINED

170:5 - 170:5 McNamara

 170 5 A. No.

Re: [170:5-170:5]

Def Obj Foundation (602); Compound: 

Misstates; Argumentative (611, 403)

SUSTAINED

190:24 - 191:3 McNamara

 190 24 (WHEREUPON, a certain document was

 191 1 marked Timothy McNamara Deposition

 191 2 Exhibit No. 6, for identification, as

 191 3 of 03/11/2020.)

191:9 - 191:24 McNamara

 191 9 Q. Mr. McNamara, this is an e-mail from

 191 10 Elliott Berger to Brian Myers, dated May the 12th,

 191 11 2000, and the subject is, "REAT on the Combat Arms."

 191 12 Do you see that?

 191 13 A. Yes.

 191 14 Q. Have you seen this document before today?

 191 15 A. No.

 191 16 Q. It says: "Here are the data on the

 191 17 UltraFit end of the Combat Arms. Note the original

 191 18 study was stopped with eight subjects. The second

 191 19 study was with folded-back flanges on the end sticking

 191 20 out of the ear. Should I share this with Ohlin? It

 191 21 looks like the existing product has problems unless

 191 22 the user instructions are revised."

Re: [191:9-191:24]

Def Obj Foundation (602); Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 116 of 303
McNamara 52

 191 23 Did I read that correctly?

 191 24 A. You did.

191:25 - 192:1 McNamara

 192 1 Q. Do you know, did you share the information

192:1 - 192:2 McNamara

 192 1 Q. Do you know, did you share the information

 192 2 in this e-mail about the REAT testing with Doug Ohlin?

Re: [192:1-192:2]

Def Obj Foundation (602); Compound 

(611, 403); Relevance (401, 402)

OVERRULED

192:5 - 192:5 McNamara

 192 5 A. No.

Re: [192:5-192:5]

Def Obj Foundation (602); Compound 

(611, 403); Relevance (401, 402)

OVERRULED

192:6 - 192:6 McNamara

 192 6 BY MR. TRACEY:

192:7 - 192:9 McNamara

 192 7 Q. Did you know in May of 2000 that Elliott

 192 8 Berger believed that the Combat Arms Earplug had

 192 9 problems unless the user instructions were revised?

Re: [192:7-192:9]

Def Obj Foundation (602); Relevance 

(401, 402)

SUSTAINED

192:11 - 193:1 McNamara

 192 11 BY THE WITNESS:

 192 12 A. No.

 192 13 BY MR. TRACEY:

 192 14 Q. Did anybody ever bring this to your

 192 15 attention in the ten years you were selling this

 192 16 product?

 192 17 A. No.

 192 18 Q. So as we sit here, this is the first time

 192 19 today that you're seeing this document?

 192 20 A. Yes.

 192 21 Q. This is the first time you're seeing

 192 22 Elliott Berger asking the question to Brian Myers

 192 23 about sharing the content of the flange report with

 192 24 Doug Ohlin?

 193 1 A. Yes.

Re: [192:11-193:1]

Def Obj Foundation (602); Relevance 

(401, 402)

OVERRULED

193:2 - 193:4 McNamara

 193 2 Q. And Mr. Ohlin* says: "The existing product

 193 3 has problems," doesn't he?

 193 4 A. It appears so.

Re: [193:2-193:4]

Def Obj Foundation (602); Hearsay 

(801, 802)

OVERRULED

*Should that be “Berger”?

193:5 - 193:6 McNamara

 193 5 Q. Do you know what the existing problems the

 193 6 product had?

Re: [193:5-193:6]

Def Obj Misstates; Vague; 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 117 of 303
McNamara 53

Argumentative (611, 403); Foundation 

(602)

193:9 - 193:9 McNamara

 193 9 A. No, not that I know of.

195:1 - 195:5 McNamara

 195 1 (WHEREUPON, a certain document was

 195 2 marked Timothy McNamara Deposition

 195 3 Exhibit No. 7, for identification, as

 195 4 of 03/11/2020.)

 195 5 BY MR. TRACEY:

195:6 - 195:12 McNamara

 195 6 Q. Mr. McNamara, this next exhibit is

 195 7 something called "Tim's Military Installation

 195 8 Priorities." It's Exhibit No. --

 195 9 MR. OLIVO: Seven?

 195 10 BY MR. TRACEY:

 195 11 Q. -- 7.

 195 12 Are you familiar with this document?

195:15 - 196:10 McNamara

 195 15 A. Yes.

 195 16 BY MR. TRACEY:

 195 17 Q. This, to me, looks like -- well, on the

 195 18 second page of it, at the top, it says, "Tim's

 195 19 Military Installation Priorities."

 195 20 Who created this document?

 195 21 A. I don't know. I would have headed it

 195 22 differently, but it's probably based on my future

 195 23 plans for the next six months or something like that.

 195 24 Q. Okay. And this -- this is -- this is --

 196 1 this was created, I'm told -- is this an October 2008

 196 2 creation date? I've got October 2008 creation date,

 196 3 according to the metadata. It's 3 -- the Bates number

 196 4 which I need to identify is 3M MDL 000553924. If this

 196 5 is from 2008, it looks like the dates begin in

 196 6 July and end in November; is that right?

 196 7 A. Yes.

 196 8 Q. And we say -- on the left we see the

 196 9 installation that you intend to visit?

 196 10 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 118 of 303
McNamara 54

196:20 - 199:16 McNamara

 196 20 Q. And then we see the -- the installations,

 196 21 we see Fort Bragg, Fort Benning, Fort Hood, Fort

 196 22 Stewart, Fort Jackson, Fort Campbell, Fort Riley, Fort

 196 23 Carson, Camp Lejeune, Fort Bragg, Fort Drum, Fort

 196 24 Lewis, Camp Pendleton again, Twentynine Palms,

 197 1 Schofield Barracks, Fort Irwin, Fort Belvoir, Langley

 197 2 Air Force Base, Scott Air Force Base, Fort Leonard

 197 3 Wood, Norfolk naval installations, and Fort Lee.

 197 4 Did I read all of that right?

 197 5 A. Yes, you did.

 197 6 Q. And those are all installations that

 197 7 according to this document you were going to hopefully

 197 8 visit; is that right?

 197 9 A. Correct.

 197 10 Q. And is -- you -- it sounded like you did

 197 11 not yourself create this document?

 197 12 A. I -- I may have to -- and gave it to my

 197 13 boss, but, again, it sounds like my boss created it

 197 14 because it says "Tim's." I would have said --

 197 15 Q. You wouldn't have referred to yourself in

 197 16 the third person?

 197 17 A. No, no.

 197 18 Q. Okay. And in 2008 would your boss have

 197 19 been Marty Salon?

 197 20 A. No.

 197 21 Q. Who would it have been then?

 197 22 A. Frank Gavin.

 197 23 Q. Frank Gavin. Okay.

 197 24 And --

 198 1 A. Excuse me. Mike Cimino.

 198 2 Q. Mike Cimino. Okay.

 198 3 And on the target market -- do you see

 198 4 that column?

 198 5 A. Yes.

 198 6 Q. Tell me what the target market is.

 198 7 A. Those are the divisions, like the 82nd

 198 8 Airborne, you know, 1st Cav. They are the -- they are

 198 9 the installation -- each installation or base has a

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 119 of 303
McNamara 55

 198 10 number of different groups to it.

 198 11 Q. Okay.

 198 12 A. So those were specific in those visits.

 198 13 Q. So, for example, if we take the first

 198 14 entry, you were going to go to Fort Bragg on or around

 198 15 July 8th through the 10th, you were going to -- the

 198 16 target market was the 82nd Airborne, and then what's

 198 17 SOF?

 198 18 A. Special --

 198 19 Q. Special Ops Forces?

 198 20 A. No. I don't know. I don't recall right

 198 21 now.

 198 22 Q. Okay. In any event, your target market

 198 23 when you went to Fort Bragg, would it be the 82nd

 198 24 Airborne and whatever SOF is?

 199 1 A. Yes, sir. Yeah.

 199 2 Q. So those are the -- would those be the

 199 3 management people or the commanders that you would

 199 4 want to see?

 199 5 A. Yes.

 199 6 Q. Okay. And then over to the right, it

 199 7 says, "Actual date," and it says, "Complete," which

 199 8 means I guess that you -- you did do that?

 199 9 A. Yes.

 199 10 Q. Okay. And so do you know -- on the second

 199 11 installation or target market dated 15 to 17 July, it

 199 12 says: "DCD & Building 4."

 199 13 Do you know what that is?

 199 14 A. I don't remember.

 199 15 Q. In any event, that was at Fort Benning.

 199 16 A. Yes.

200:9 - 201:2 McNamara

 200 9 Q. Okay. Okay. Down under July -- and as

 200 10 you said earlier, it looks like you literally are

 200 11 traveling every week of the month, aren't you?

 200 12 A. Yes, I am.

 200 13 Q. And it looks like -- are those Tuesday to

 200 14 Thursdays, Tuesday to Fridays?

 200 15 A. They varied Monday through Thursday. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 120 of 303
McNamara 56

 200 16 Generally, yes.

 200 17 Q. You tried to be home on the weekend?

 200 18 A. Yes.

 200 19 Q. Okay. So every week we see you traveling

 200 20 to different installations. Now, I'm assuming, did

 200 21 you -- did you fly or drive or did it depend?

 200 22 A. Flew.

 200 23 Q. Flew. Okay.

 200 24 You must have had a lot of frequent flier

 201 1 miles?

 201 2 A. I did.

201:3 - 201:4 McNamara

 201 3 Q. And when you -- did you fly to an airport

 201 4 and rent a car?

Re: [201:3-201:4]

Def Obj Compound (611, 403); 

Relevance (401, 402)

OVERRULED

201:7 - 201:7 McNamara

 201 7 A. Yes.

Re: [201:7-201:7]

Def Obj Compound (611, 403); 

Relevance (401, 402)

OVERRULED

201:8 - 201:8 McNamara

 201 8 BY MR. TRACEY:

201:9 - 201:11 McNamara

 201 9 Q. Okay. And then you would drive to the

 201 10 barracks?

 201 11 A. Yes.

Re: [201:9-201:11]

Def Obj Relevance (401, 402)

OVERRULED

201:12 - 202:4 McNamara

 201 12 Q. And did you have, like, a suitcase or a

 201 13 bag full of materials that you would typically carry

 201 14 with you?

 201 15 A. Yes.

 201 16 Q. Tell me what would be in the suitcase or

 201 17 the bag? What do we call what you carried them in?

 201 18 A. Sample bag.

 201 19 Q. A sample bag. And that was provided by

 201 20 Aearo?

 201 21 A. Yes.

 201 22 Q. And what did it look like? Was it a

 201 23 suitcase? Was it a briefcase? What did it look like?

 201 24 A. It was roll -- a rollaway duffel bag.

 202 1 Q. Okay.

 202 2 A. What the military uses.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 121 of 303
McNamara 57

 202 3 Q. Okay. A military bag?

 202 4 A. Yes.

202:9 - 202:20 McNamara

 202 9 Q. Did you bring a laptop with you?

 202 10 A. Yes.

 202 11 Q. And did you bring, like, a screen to do

 202 12 presentations?

 202 13 A. No.

 202 14 Q. Well, how did -- when you did

 202 15 presentations, how did you do them? Did they -- did

 202 16 they have classrooms there you could use?

 202 17 A. No.

 202 18 Q. What did you do?

 202 19 A. They were one-on-one visits with the

 202 20 commanders.

204:14 - 204:17 McNamara

 204 14 Q. Okay. If you flip over to the next page,

 204 15 it's called, "Tim's Weekly Business Development

 204 16 Report."

 204 17 Do you know what that is?

Re: [204:14-204:17]

Def Obj Foundation (602)

OVERRULED

204:20 - 205:1 McNamara

 204 20 A. No, but, I mean, it's -- it's probably a

 204 21 conglomeration of what I discussed and any follow-ups

 204 22 and so forth.

 204 23 BY MR. TRACEY:

 204 24 Q. And are those your notes there on the

 205 1 right-hand side of that, "Follow-up Actions"?

Re: [204:20-205:1]

Def Obj Foundation (602)

OVERRULED

205:3 - 205:4 McNamara

 205 3 BY THE WITNESS:

 205 4 A. They appear to be.

Re: [205:3-205:4]

Def Obj Foundation (602)

OVERRULED

205:23 - 206:6 McNamara

 205 23 Q. So, for example, on the week of July 7th,

 205 24 it looks like you went to Fort Bragg; is that

 206 1 accurate?

 206 2 A. That's accurate.

 206 3 Q. And while you were at Fort Bragg, you

 206 4 talked to the 7th group, two different people at the

 206 5 7th group, right?

 206 6 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 122 of 303
McNamara 58

207:13 - 207:22 McNamara

 207 13 Q. So you met with one, two, three, four,

 207 14 five, six, seven, eight, nine -- about ten different

 207 15 people?

 207 16 A. Yes.

 207 17 Q. And -- and when you had these meetings

 207 18 with these ten different people all at Fort Bragg,

 207 19 would you use your -- your rollaway duffel bag? Is

 207 20 that where you would access the information that you

 207 21 wanted to communicate to them?

 207 22 A. Yes.

208:5 - 208:10 McNamara

 208 5 Q. Okay. And then -- I apologize. These

 208 6 aren't numbered, but I didn't want to add numbers to

 208 7 them. If you flip over to the one, two, third, fourth

 208 8 page unnumbered, you'll see it says "Fort Carson" on

 208 9 it right below "Fort Campbell"?

 208 10 A. Yes.

210:16 - 210:23 McNamara

 210 16 Q. In any event, you see -- well, let's look

 210 17 on the screen so we are all looking at the same thing.

 210 18 A. Okay.

 210 19 Q. So it says: "Fort Carson, Range Control,

 210 20 Dan Benford," and then under the What Was Discussed,

 210 21 it says: "PC plus, ACH, EVP and then CAE," which is

 210 22 Combat Arms Earplug, right?

 210 23 A. Yeah, I believe so.

211:19 - 212:1 McNamara

 211 19 Q. Okay. All right. As we continue to

 211 20 scroll down, still at Fort Carson, you'll see at the

 211 21 bottom you met with Michael Tyler at the audiology

 211 22 clinic. Do you see that? That and the discuss -- you

 211 23 discuss your Combat Arms Earplug?

 211 24 A. Yes. Yes.

 212 1 Q. And over in your notes, it says: "He was

212:1 - 212:7 McNamara

 212 1 Q. And over in your notes, it says: "He was

 212 2 not aware of the new Combat Arms, as they have been

 212 3 issuing the 370-1000 and will be requesting an order

Re: [212:1-212:7]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 123 of 303
McNamara 59

 212 4 from procurement."

 212 5 Do you see that?

 212 6 A. Yes.

 212 7 Q. 370-1000 is Version 2, right?

212:9 - 212:9 McNamara

 212 9 BY THE WITNESS:

212:10 - 212:10 McNamara

 212 10 A. I believe so, yes.

Re: [212:10-212:10]

Def Obj Foundation (602)

OVERRULED

212:11 - 212:17 McNamara

 212 11 BY MR. TRACEY:

 212 12 Q. Okay. All right. And then just as we

 212 13 thumb through this and look through this, we just see

 212 14 all of the various places that you visited, what you

 212 15 discussed and the notes about, you know, your visits,

 212 16 correct?

 212 17 A. Yes.

214:4 - 214:8 McNamara

 214 4 Would you, Mr. McNamara, when you would

 214 5 make your rounds, as you did each and every week, did

 214 6 you sometimes get feedback about the products from the

 214 7 military men and women?

 214 8 A. Yes.

214:9 - 214:10 McNamara

 214 9 Q. About things they liked and didn't like

 214 10 and things like that?

214:17 - 214:17 McNamara

 214 17 A. Generally, yeah.

216:9 - 217:4 McNamara

 216 9 Q. Okay. Were -- did you tell me earlier --

 216 10 I think you did, but I want to make sure I'm

 216 11 remembering this correctly. You were the sole person

 216 12 in sales that was tasked with going out to the various

 216 13 bases?

 216 14 A. Yeah.

 216 15 Q. Did you ever bring along Marty Salon or

 216 16 anybody else?

 216 17 A. They would come with me on occasion, like,

 216 18 not necessarily Marty Salon, but Mike Cimino and --

 216 19 Q. Okay.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 124 of 303
McNamara 60

 216 20 A. -- just to get exposure on the market.

 216 21 Q. Okay. What about Brian Myers? Did he

 216 22 ever go with you?

 216 23 A. Yes.

 216 24 Q. Okay. Anyone else you can think of

 217 1 besides Mike Cimino and Brian Myers who might go with

 217 2 you to the bases?

 217 3 A. I don't know if Frank Gavin -- Frank Gavin

 217 4 did go with me on occasion.

228:16 - 228:23 McNamara

 228 16 (WHEREUPON, a certain document was

 228 17 marked Timothy McNamara Deposition

 228 18 Exhibit No. 10, for identification,

 228 19 as of 03/11/2020.)

 228 20 BY MR. TRACEY:

 228 21 Q. Okay. I'm going to hand you Exhibit

 228 22 No. 9.

 228 23 MR. LAWRENCE TRACEY: 10.

229:5 - 229:16 McNamara

 229 5 Q. Mr. McNamara, this is an e-mail dated

 229 6 October the 27th, 2005 from Marc Santoro.

 229 7 Who is Marc Santoro?

 229 8 A. He was in -- I believe he was in -- in

 229 9 marketing.

 229 10 Q. Okay.

 229 11 A. -- for the E-A-R side.

 229 12 Q. Okay. And -- and this is to a variety of

 229 13 people, Daryl Charton, Mike Cimino, Frank Gavin, Jim

 229 14 Gray, Tim McNamara, Doug Moses, Brian Myers, Marty

 229 15 Salon and Gary Warren, is that right?

 229 16 A. That's correct.

230:2 - 230:14 McNamara

 230 2 Q. Okay. We are going to start on the bottom

 230 3 with this e-mail because that's the way these things

 230 4 print out, they -- chronologically. They go from

 230 5 bottom to top. We see Daryl writing at 9:44 a.m.

 230 6 He says: "I was in the Atlanta airport

 230 7 yesterday with a large number of military personnel.

 230 8 I had a long conversation with Lieutenant Colonel

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 125 of 303
McNamara 61

 230 9 Stephen Tableman from the U.S. Army and two Sergeant

 230 10 Majors."

 230 11 Incidentally, do you know Lieutenant

 230 12 Colonel Steph -- Stephen Tableman?

 230 13 A. I do not.

 230 14 Q. Okay.

230:15 - 231:14 McNamara

 230 15 It says: "We discussed the Combat Arms

 230 16 Earplug. They all wear the plugs but have trouble

 230 17 getting them. They truly believe the Combat Arms are

 230 18 vital for every soldier to be wearing every day on

 230 19 every patrol. They also believe we need to do a

 230 20 better job communicating how to wear them properly via

 230 21 military posters to be put in mess halls, bathrooms,

 230 22 et cetera, places the troops frequent daily. In

 230 23 addition, they gave me an example of a non-competitive

 230 24 company that manufactures gun lubricants. They are

 231 1 doing a great job getting product to the troops with

 231 2 or without the DFAS. Their issue was the same as

 231 3 ours. The product is in absolute demand because of

 231 4 the sand. The troops were having a hard time getting

 231 5 the product because of the supply, so the company set

 231 6 up this website: www.militec.com to solve their

 231 7 issue. In addition, each bottle of lubricant comes

 231 8 with a reorder card with all the military numbers if

 231 9 the supply center is having issues getting the product

 231 10 to the troops. They advertised this website

 231 11 everywhere with the troops. Stars and Stripes was

 231 12 mentioned as essential for all troops. Daryl?"

 231 13 Did I read all of that right?

 231 14 A. Yes.

Re: [230:15-231:14]

Def Obj Foundation (602)

OVERRULED

231:15 - 231:24 McNamara

 231 15 Q. Then Marc respond -- Marc Santoro

 231 16 responds, copies you all, and says: "Daryl, thanks

 231 17 for the info. We recognize that education of the

 231 18 proper use and benefits of the plug is sorely lacking

 231 19 and are formulating a plan to aggressively address

 231 20 this issue."

 231 21 Do you remember -- do you remember

Re: [231:15-231:24]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 126 of 303
McNamara 62

 231 22 receiving this e-mail?

 231 23 A. I don't. It -- it looks somewhat

 231 24 familiar, but I don't -- not specifically.

231:25 - 232:1 McNamara

 232 1 Q. Even -- even though you don't recognize it

232:1 - 232:4 McNamara

 232 1 Q. Even -- even though you don't recognize it

 232 2 specifically, do you remember -- remember the subject

 232 3 of your company educating on the proper use and

 232 4 benefits of the plug was sorely lacking?

Re: [232:1-232:4]

Def Obj Compound; Argumentative 

(611, 403); Foundation (602)

OVERRULED

232:7 - 232:7 McNamara

 232 7 A. I don't remember that.

Re: [232:7-232:7]

Def Obj Compound; Argumentative 

(611, 403); Foundation (602)

OVERRULED

232:24 - 233:12 McNamara

 232 24 Q. He goes on to say: "Unfortunately, the

 233 1 military seems so fragmented that there is no silver

 233 2 bullet in communicating with all of the different

 233 3 branches/bases/troops. We will probably be attacking

 233 4 this from several angles including posters, more ads

 233 5 in soldier publications (i.e., Army magazine),

 233 6 instructions packaged with each pair of product, PR

 233 7 and possibly some online training content. On my trip

 233 8 to Fort Campbell this coming week, I'm going to try

 233 9 and dig deeper into the issue."

 233 10 Let me ask you a few questions about this.

 233 11 Do you remember your company creating websites so

 233 12 soldiers could order the Combat Arms Earplug?

Re: [232:24-233:12]

Def Obj Foundation (602)

OVERRULED

233:14 - 233:16 McNamara

 233 14 BY THE WITNESS:

 233 15 A. I don't -- I don't -- I don't remember

 233 16 that.

Re: [233:14-233:16]

Def Obj Foundation (602)

OVERRULED

239:6 - 239:10 McNamara

 239 6 Q. Did your company ever disclose to you

 239 7 that -- that they felt that their -- their

 239 8 instructions on how to use -- properly use the Combat

 239 9 Arms was sorely lacking?

 239 10 A. No, not --

Re: [239:6-239:10]

Def Obj Misstates (611, 403); 

Foundation (602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 127 of 303
McNamara 63

239:13 - 239:16 McNamara

 239 13 Q. Is it your estimation that in your decade

 239 14 or so of selling the Combat Arms Earplug, that the

 239 15 educational materials that you were using were

 239 16 perfectly fine?

Re: [239:13-239:16]

Def Obj Argumentative (611, 403); 

Foundation (602)

OVERRULED

239:18 - 239:18 McNamara

 239 18 BY THE WITNESS:

239:19 - 239:19 McNamara

 239 19 A. At that time, yes.

Re: [239:19-239:19]

Def Obj Argumentative (611, 403); 

Foundation (602)

OVERRULED

239:20 - 239:20 McNamara

 239 20 BY MR. TRACEY:

239:21 - 240:4 McNamara

 239 21 Q. Yeah, that's what I'm asking, at that

 239 22 time. And let's say from '99 to 2008 when you -- when

 239 23 you -- '8-ish, that entire timeframe when you were

 239 24 going out to -- to -- to bases and talking to base

 240 1 commanders and doing all of the things that you

 240 2 described, using whatever materials that your company

 240 3 furnished, nobody ever brought it to your attention

 240 4 that soldiers were having trouble with fitting?

Re: [239:21-240:4]

Def Obj Misstates; Compound; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

240:6 - 240:6 McNamara

 240 6 BY THE WITNESS:

240:7 - 240:7 McNamara

 240 7 A. Not that I can remember.

Re: [240:7-240:7]

Def Obj Misstates; Compound; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

240:8 - 240:8 McNamara

 240 8 BY MR. TRACEY:

240:9 - 240:12 McNamara

 240 9 Q. Okay. Certainly your company, as we can

 240 10 see here, your company, you would agree with me, is in

 240 11 the best position on how to educate users on the

 240 12 product they designed and created?

Re: [240:9-240:12]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

240:14 - 240:15 McNamara

 240 14 BY THE WITNESS:

 240 15 A. I would think so.

Re: [240:14-240:15]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

240:16 - 240:16 McNamara

 240 16 BY MR. TRACEY:

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 128 of 303
McNamara 64

240:17 - 240:18 McNamara

 240 17 Q. Yeah. I mean, nobody should know your

 240 18 product better than you, right?

Re: [240:17-240:18]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

240:20 - 240:20 McNamara

 240 20 BY THE WITNESS:

240:21 - 240:21 McNamara

 240 21 A. I believe so, yes.

Re: [240:21-240:21]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602)

OVERRULED

241:14 - 241:22 McNamara

 241 14 Q. Okay. Your company tested the product,

 241 15 right?

 241 16 A. I would assume so.

 241 17 Q. Your company marketed the product?

 241 18 A. Yes.

 241 19 Q. Your company sold the product?

 241 20 A. Yes.

 241 21 Q. Your company profited from the product?

 241 22 A. Yes.

Re: [241:14-241:22]

Def Obj Foundation (602)

OVERRULED

241:23 - 242:1 McNamara

 241 23 Q. Your company created sales sheets and

 241 24 brochures to profit -- to sell and profit from the

 242 1 product?

Re: [241:23-242:1]

Def Obj Foundation (602); Compound; 

Misstates (611, 403)

OVERRULED

242:4 - 242:8 McNamara

 242 4 Q. Right?

 242 5 A. Yes.

 242 6 Q. Your company was in the best position to

 242 7 properly educate and train end users on the proper

 242 8 usage of your product, right?

Re: [242:4-242:8]

Def Obj Foundation (602); Asked; 

Argumentative (611, 403)

OVERRULED

242:11 - 242:12 McNamara

 242 11 BY THE WITNESS:

 242 12 A. I believe so, yes.

Re: [242:11-242:12]

Def Obj Foundation (602); Asked; 

Argumentative (611, 403)

OVERRULED

257:8 - 257:24 McNamara

 257 8 Q. Mr. McNamara, this is an e-mail string.

 257 9 You're at the top, as you can see. Tuesday, May 9th.

 257 10 It's to Marc Santoro and Brian Hoffman. Who is Brian

 257 11 Hoffman?

 257 12 A. I don't remember who Brian Hoffman is.

 257 13 Q. Okay. Well, go to the second

 257 14 page because, as I said, we are going to look at this

Re: [257:8-257:24]

Def Obj Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 129 of 303
McNamara 65

 257 15 in chronological order, and it starts, as they all do,

 257 16 front to back.

 257 17 So it says -- do you see at the bottom it

 257 18 says Brian Hoffman is sending an e-mail. It says:

 257 19 "Ma'am, please send me any slides, handouts or videos

 257 20 you have on the proper way to insert the earplugs

 257 21 (Classic and two-sided Combat Arms)."

 257 22 And that is dated May the 4th, 2006, isn't

 257 23 it?

 257 24 A. Yes.

257:17 - 257:21 McNamara

 257 17 So it says -- do you see at the bottom it

 257 18 says Brian Hoffman is sending an e-mail. It says:

 257 19 "Ma'am, please send me any slides, handouts or videos

 257 20 you have on the proper way to insert the earplugs

 257 21 (Classic and two-sided Combat Arms)."

Re: [257:17-257:21]

Def Obj Foundation (602)

OVERRULED

277:18 - 278:3 McNamara

 277 18 Do -- do you -- when -- I want to ask you

 277 19 about a couple of other barracks or forts to see if

 277 20 you -- when you were -- when you were selling the

 277 21 Combat Arms if you went there.

 277 22 A. Okay.

 277 23 Q. You've already identified most of these,

 277 24 but there are a couple, I think, I didn't ask you

 278 1 about.

 278 2 Did you go to the Lewis-McChord Base?

 278 3 A. Yes.

Re: [277:18-278:3]

Def Obj Relevance (401, 402)

OVERRULED

278:20 - 279:6 McNamara

 278 20 What about Schofield Barracks in Hawaii?

 278 21 Did you ever get to make that trip?

 278 22 A. I did.

 278 23 Q. Okay. Fort Drum?

 278 24 A. Yes.

 279 1 Q. Fort Benning I think we talked about.

 279 2 You've been there?

 279 3 A. Yes.

 279 4 Q. Yeah.

 279 5 Fort Hood in Texas?

 279 6 A. Yes.

Re: [278:20-279:6]

Def Obj Cumulative (403); Asked (611, 

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 130 of 303
McNamara 66

279:12 - 279:13 McNamara

 279 12 Q. Okay. Fort Bliss?

 279 13 A. Yes.

Re: [279:12-279:13]

Def Obj Cumulative (403); Asked (611, 

403)

OVERRULED

279:16 - 279:22 McNamara

 279 16 Q. Okay. Fort Jackson in South Carolina?

 279 17 A. Yes.

 279 18 Q. Fort Campbell in Kentucky I think you've

 279 19 talked about.

 279 20 A. Yes.

 279 21 Q. Right?

 279 22 A. Yes.

Re: [279:16-279:22]

Def Obj Cumulative (403); Asked (611, 

403)

OVERRULED

280:20 - 281:3 McNamara

 280 20 Q. Okay. What about Fort Stewart in Georgia?

 280 21 A. Yes.

 280 22 Q. Okay. We talked about Fort Bragg.

 280 23 Fort Richardson?

 280 24 A. Yes.

 281 1 Q. Okay. What about Fort Irwin in

 281 2 California?

 281 3 A. I believe so.

Re: [280:20-281:3]

Def Obj Cumulative (403); Asked (611, 

403)

OVERRULED

283:8 - 283:8 McNamara

 283 8 MR. TRACEY: Okay. Thank you for your time.

283:21 - 284:5 McNamara

 283 21 Q. Good afternoon, Mr. McNamara. My name is

 283 22 Bryan Aylstock. I am lead counsel on behalf of all of

 283 23 the soldiers and Marines that have brought suit

 283 24 against Aearo and 3M.

 284 1 Do you understand that?

 284 2 A. Yes, sir.

 284 3 Q. You understand you are still under oath,

 284 4 yes?

 284 5 A. Yes.

284:6 - 284:10 McNamara

 284 6 Q. I wanted to go back to Exhibit No. 2,

 284 7 your -- and -- and it's -- this is the production that

 284 8 you provided your lawyers, Kirkland, to provide to us

 284 9 from your files; is that right?

 284 10 A. Correct.

Re: [284:6-284:10]

Def Obj Relevance (401, 403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 131 of 303
McNamara 67

289:15 - 289:19 McNamara

 289 15 Q. And we talked a little bit about

 289 16 distributors earlier. But distributors -- you were

 289 17 out there selling to the military day in/day out, but

 289 18 the distributors were also selling these earplugs to

 289 19 the military, correct?

Re: [289:15-289:19]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

289:21 - 289:21 McNamara

 289 21 BY THE WITNESS:

289:22 - 289:22 McNamara

 289 22 A. Correct.

Re: [289:22-289:22]

Def Obj Compound (611, 403); 

Foundation (602)

OVERRULED

289:23 - 289:23 McNamara

 289 23 BY MR. AYLSTOCK:

289:24 - 290:12 McNamara

 289 24 Q. And the distributors, as evidenced by this

 290 1 presentation you gave, received information about the

 290 2 Aearo products from Aearo, right?

 290 3 A. Correct.

 290 4 Q. I mean, Aearo would be in a better

 290 5 position to know about Aearo's products than a

 290 6 distributor that was just a middleman, right?

 290 7 A. Yes.

 290 8 Q. And some of the information that you

 290 9 provided to ADS includes the -- what I'd refer to as a

 290 10 sell sheet, if we look at Page 11, McNamara

 290 11 subpoena 11, with the E-A-R at the top?

 290 12 A. Yes.

Re: [289:24-290:12]

Def Obj Relevance (401, 402)

OVERRULED

290:13 - 290:15 McNamara

 290 13 Q. Is that what you'd consider to be a sell

 290 14 sheet?

 290 15 A. Support piece, yes.

290:16 - 290:20 McNamara

 290 16 Q. Okay. And so what you, on behalf of

 290 17 Aearo, is telling this distributor about the earplugs

 290 18 that the distributor is then going to go sell to the

 290 19 military is contained in this -- in this presentation,

 290 20 correct?

Re: [290:16-290:20]

Def Obj Misstates (611, 403); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 132 of 303
McNamara 68

290:23 - 290:23 McNamara

 290 23 A. I believe so, yes.

Re: [290:23-290:23]

Def Obj Misstates (611, 403); 

Foundation (602)

OVERRULED

292:13 - 292:17 McNamara

 292 13 Q. Okay. Well, in this presentation piece,

 292 14 this sell sheet, what is being communicated to ADS,

 292 15 the distributor, is that the yellow end is perfectly

 292 16 fine for weapons fire in the dismounted mode, correct?

 292 17 A. Correct.

Re: [292:13-292:17]

Def Obj Misstates, Compound (611, 

403); Foundation (602)

OVERRULED

292:19 - 292:19 McNamara

 292 19 BY MR. AYLSTOCK:

292:20 - 292:21 McNamara

 292 20 Q. And it would be perfectly fine for weapons

 292 21 fire at the range, correct?

Re: [292:20-292:21]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

293:1 - 293:4 McNamara

 293 1 A. I believe so.

 293 2 BY MR. AYLSTOCK:

 293 3 Q. And that includes the indoor range,

 293 4 correct?

Re: [293:1-293:4]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

293:7 - 293:8 McNamara

 293 7 BY THE WITNESS:

 293 8 A. It doesn't state that, but yes.

Re: [293:7-293:8]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

293:9 - 293:9 McNamara

 293 9 BY MR. AYLSTOCK:

293:10 - 293:14 McNamara

 293 10 Q. And that's consistent with when you were

 293 11 visiting these bases, that's consistent with what you

 293 12 would communicate to the people you would speak with,

 293 13 the men and women in uniform, about the Combat Arms

 293 14 Earplug, correct?

Re: [293:10-293:14]

Def Obj Vague; Compound: Misstates; 

Argumentative (611, 403); 3M MIL No. 

15

OVERRULED

293:16 - 293:16 McNamara

 293 16 BY THE WITNESS:

293:17 - 293:17 McNamara

 293 17 A. I believe so.

Re: [293:17-293:17]

Def Obj Vague; Compound; 

Argumentative; Misstates (611, 403); 

3M MIL No. 15;

OVERRULED

293:18 - 293:22 McNamara

 293 18 BY MR. AYLSTOCK:

 293 19 Q. Okay. So let me -- well, let me ask you

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 133 of 303
McNamara 69

 293 20 this: You know who Elliott Berger is, right? I think

 293 21 you've answered that earlier.

 293 22 A. Yes.

293:23 - 294:3 McNamara

 293 23 Q. Did you ever hear from Elliott Berger or

 293 24 anybody else at Aearo that the Combat Arms Version 2

 294 1 yellow end is not supposed to be used and did not

 294 2 provide protection in the indoor range? Is this the

 294 3 first time anybody has ever told you that?

Re: [293:23-294:3]

Def Obj Foundation (602); Compound 

(611, 403)

OVERRULED

294:6 - 294:6 McNamara

 294 6 BY THE WITNESS:

294:7 - 294:7 McNamara

 294 7 A. I don't remember.

Re: [294:7-294:7]

Def Obj Foundation (602); Compound 

(611, 403)

OVERRULED

294:8 - 294:8 McNamara

 294 8 BY MR. AYLSTOCK:

294:9 - 294:12 McNamara

 294 9 Q. Well, I -- since you were out there

 294 10 selling this product to use the yellow end for indoor

 294 11 ranges, that would have been something you would have

 294 12 liked to know, I take it?

Re: [294:9-294:12]

Def Obj Foundation (602); Compound; 

Mistates; Argumentative (611, 403)

OVERRULED

294:14 - 294:14 McNamara

 294 14 BY THE WITNESS:

294:15 - 294:15 McNamara

 294 15 A. I believe so.

Re: [294:15-294:15]

Def Obj Foundation (602); Compound; 

Mistates; Argumentative (611, 403)

OVERRULED

294:16 - 294:22 McNamara

 294 16 BY MR. AYLSTOCK:

 294 17 Q. Okay. And Elliott Berger was the head guy

 294 18 at the lab, the Aearo lab, right?

 294 19 A. Yes.

 294 20 Q. And you interacted with Elliott Berger

 294 21 personally from time to time, correct?

 294 22 A. Sometimes, yes.

294:23 - 297:13 McNamara

 294 23 Q. And, in fact, you went to his lab from

 294 24 time to time, did you not, the Aearo lab?

 295 1 A. From time to time, yes.

 295 2 MR. AYLSTOCK: Can we put up a photo of the

Re: [294:23-297:13]

Def Obj Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 134 of 303
McNamara 70

 295 3 Aearo -- just the Aearo building. I think I have a

 295 4 copy of it somewhere.

 295 5 BY MR. AYLSTOCK:

 295 6 Q. Is that -- is that the Aearo building

 295 7 where the lab is that Elliott Berger was at that you

 295 8 would go to from time to time?

 295 9 MR. AYLSTOCK: Zoom out so he can see the

 295 10 whole building and the part on the right that says

 295 11 "Aearo."

 295 12 BY MR. AYLSTOCK:

 295 13 Q. That's here in Indianapolis, right?

 295 14 A. Yes.

 295 15 Q. And that's where you would go when you

 295 16 would interact with Elliott Berger or -- yeah --

 295 17 strike that.

 295 18 Is that -- when you had an office when you

 295 19 weren't out on the road at the military bases, was

 295 20 your office in this building?

 295 21 A. My office was not in that building.

 295 22 Q. Okay. But you knew that this was where

 295 23 the lab was that Elliott Berger worked in, right?

 295 24 A. Yes.

 296 1 Q. And you would go there from time to time,

 296 2 correct?

 296 3 A. Very seldom.

 296 4 Q. Well, in fact, I think we established you

 296 5 might have even been a participant in a -- in a lab

 296 6 test, correct?

 296 7 A. I -- yes.

 296 8 Q. Okay.

 296 9 A. One time.

 296 10 Q. Let me show you these photographs. We'll

 296 11 mark them as Plaintiffs' Exhibit -- demonstrative

 296 12 exhibit -- what exhibit are we up to?

 296 13 MR. BATTLE: 16.

 296 14 MR. AYLSTOCK: 16.

 296 15 (WHEREUPON, a certain document was

 296 16 marked Timothy McNamara Deposition

 296 17 Exhibit No. 16, for identification,

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 135 of 303
McNamara 71

 296 18 as of 03/11/2020.)

 296 19 BY THE WITNESS:

 296 20 A. Thank you.

 296 21 BY MR. AYLSTOCK:

 296 22 Q. These are photographs of the lab and the

 296 23 building that I just showed you. You recognize that

 296 24 as the -- the lab that you would visit from time to

 297 1 time and see Mr. Berger, correct?

 297 2 A. It looks familiar, yes.

 297 3 Q. And if we page --

 297 4 MR. AYLSTOCK: Go back to the second one, Jon,

 297 5 the one with the window. Can you -- yeah.

 297 6 BY MR. AYLSTOCK:

 297 7 Q. Do you recognize that as sort of a view

 297 8 through the window into the -- the acoustical chamber

 297 9 where the test would be done?

 297 10 A. It looks familiar, yes.

 297 11 Q. Okay. And is -- do those pictures

 297 12 approximate how the lab looked when you worked there?

 297 13 A. Yes.

297:19 - 297:23 McNamara

 297 19 Q. Did you ever have any conversation with

 297 20 Mr. Berger that, in fact, the CAE Version 2 yellow end

 297 21 is not to be recommended -- is not to be used or not

 297 22 recommended for indoor range use?

 297 23 A. I don't recall.

297:24 - 298:6 McNamara

 297 24 Q. Let me show you this.

 298 1 (WHEREUPON, a certain document was

 298 2 marked Timothy McNamara Deposition

 298 3 Exhibit No. 17, for identification,

 298 4 as of 03/11/2020.)

 298 5 BY THE WITNESS:

 298 6 A. Thanks.

299:8 - 300:24 McNamara

 299 8 Q. The date of this document is 2/25/14.

 299 9 Do you see that?

 299 10 A. Yes.

 299 11 Q. And this is after you are gone, correct?

Re: [299:8-300:24]

Def Obj Foundation (602); Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 136 of 303
McNamara 72

 299 12 A. Yes.

 299 13 Q. And it is from Elliott Berger, the guy we

 299 14 just talked about who ran the lab that we -- that you

 299 15 were in --

 299 16 A. Yes.

 299 17 Q. -- from time to time, correct?

 299 18 A. Correct.

 299 19 Q. And what Mr. Berger is doing is he is

 299 20 having an e-mail conversation with a Michael Stewart

 299 21 and Doug Moses.

 299 22 You know who Doug Moses is, right?

 299 23 A. I do.

 299 24 Q. You worked with Doug Moses, in fact, when

 300 1 you were at Aearo, correct?

 300 2 A. Yes.

 300 3 Q. And one of the things Mr. Berger says is:

 300 4 "Mike, I too had a discussion after we spoke. As I

 300 5 mentioned, we don't typically like to recommend CAE

 300 6 for indoor ranges because I question its adequacy with

 300 7 high-peak levels and high-reverberant levels too, but

 300 8 I agreed in your case because of the low-level impulse

 300 9 from .22s."

 300 10 Do you see that?

 300 11 A. Yes.

 300 12 Q. That's -- a .22, that's a very small gun?

 300 13 A. Yes.

 300 14 Q. You would agree with that?

 300 15 A. Yes.

 300 16 Q. And you -- since you shoot guns, you know

 300 17 that a .22 has a lot different noise profile than your

 300 18 AK -- or your AR that you shoot, right?

 300 19 A. Correct.

 300 20 Q. So as we sit here today in the year 2020,

 300 21 is this the first time you're hearing any -- that

 300 22 there was any recommendation not to use a CAE yellow

 300 23 end for indoor ranges?

 300 24 A. I don't remember.

301:1 - 301:4 McNamara

 301 1 Q. You have no recollection of ever hearing

Re: [301:1-301:4]

Def Obj Compound; Asked; 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 137 of 303
McNamara 73

 301 2 that because you were telling people out on the bases

 301 3 the opposite, that you could use that for the yellow

 301 4 end, correct?

Argumentative (611, 403); Foundation 

(602)

301:7 - 301:7 McNamara

 301 7 A. Yes, for gunfire.

Re: [301:7-301:7]

Def Obj Compound; Asked; 

Argumentantive (611, 403); Foundation 

(602)

OVERRULED

301:8 - 301:8 McNamara

 301 8 BY MR. AYLSTOCK:

301:9 - 301:12 McNamara

 301 9 Q. Right. And we are talking about an indoor

 301 10 range is a gunfire, that's what you do in an indoor

 301 11 range, right?

 301 12 A. You're right.

Re: [301:9-301:12]

Def Obj Foundation (602); 

Argumentative (611, 403)

OVERRULED

301:13 - 301:17 McNamara

 301 13 (WHEREUPON, a certain document was

 301 14 marked Timothy McNamara Deposition

 301 15 Exhibit No. 18, for identification,

 301 16 as of 03/11/2020.)

 301 17 BY MR. TRACEY:

301:18 - 301:24 McNamara

 301 18 Q. Okay. Let me show you Exhibit 18 now. It

 301 19 is another document that is after your time, so I want

 301 20 to make that clear, it is a 3M document, and you left

 301 21 when 3M purchased Aearo, right?

 301 22 A. Yes.

 301 23 Q. So, again, we are talking about a

 301 24 statement here, if you look in the Comment section --

Re: [301:18-301:24]

Def Obj Foundation (602)

OVERRULED

301:25 - 302:3 McNamara

 302 1 MR. AYLSTOCK: Can you blow up the one that's

 302 2 dated -- or at 9:47 at -- 9:47:44 p.m., the first one

 302 3 there, Jon.

303:1 - 303:10 McNamara

 303 1 Q. Okay. And the jury will have this as an

 303 2 exhibit, but, again, I'm -- this is after your time,

 303 3 but there is a statement here that says: "I would not

 303 4 recommend CAE in open mode" -- that's the yellow end,

 303 5 right?

 303 6 A. Yes.

Re: [303:1-303:10]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 138 of 303
McNamara 74

 303 7 Q. -- "in training if the training is

 303 8 shooting at the gun range."

 303 9 Do you see that?

 303 10 A. Yes.

303:11 - 303:11 McNamara

 303 11 Q. That's news to you, isn't it?

Re: [303:11-303:11]

Def Obj Foundation (602); 

Argumentative; Vague (611, 403)

OVERRULED

303:13 - 303:15 McNamara

 303 13 BY THE WITNESS:

 303 14 A. I don't remember this. I don't remember

 303 15 that information.

Re: [303:13-303:15]

Def Obj Foundation (602); 

Argumentative; Vague (611, 403)

OVERRULED

303:16 - 303:16 McNamara

 303 16 BY MR. AYLSTOCK:

303:17 - 303:19 McNamara

 303 17 Q. Right. Because you were telling folks,

 303 18 the military folks that you met with, the exact

 303 19 opposite, right?

Re: [303:17-303:19]

Def Obj 3M MIL No. 15; Misstates; 

Argumentative (611, 403); Foundation 

(602);

SUSTAINED

303:21 - 303:21 McNamara

 303 21 BY THE WITNESS:

303:22 - 304:3 McNamara

 303 22 A. Would you repeat the question?

 303 23 BY MR. AYLSTOCK:

 303 24 Q. Well, I think we've established that --

 304 1 and we've seen your presentation to the distributor,

 304 2 but you were training folks in the US military that it

 304 3 was fine to use the yellow end at the range, correct?

Re: [303:22-304:3]

Def Obj 3M MIL No. 15; Misstates; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

304:5 - 304:5 McNamara

 304 5 BY THE WITNESS:

304:6 - 304:6 McNamara

 304 6 A. Correct.

Re: [304:6-304:6]

Def Obj 3M MIL No. 15; Misstates; 

Argumentative (611, 403); Foundation 

(602); Relevance (401, 402)

OVERRULED

304:7 - 304:7 McNamara

 304 7 BY MR. AYLSTOCK:

304:8 - 304:13 McNamara

 304 8 Q. And that's the exact opposite of what's

 304 9 being stated here, that is: "I would not recommend

 304 10 the CAE in open mode in training if the training is

 304 11 shooting at the gun range."

Re: [304:8-304:13]

Def Obj Foundation (602); 3M MIL 

No. 15

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 139 of 303
McNamara 75

 304 12 Do you see that?

 304 13 A. Yes.

304:14 - 304:16 McNamara

 304 14 Q. Okay. So you were telling people the

 304 15 exact opposite of what 3M is saying in this document,

 304 16 correct?

Re: [304:14-304:16]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403); 3M MIL No. 

15

OVERRULED

304:19 - 304:19 McNamara

 304 19 BY THE WITNESS:

304:20 - 304:20 McNamara

 304 20 A. I believe so.

Re: [304:20-304:20]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403); 3M MIL No. 

15;

OVERRULED

304:21 - 304:21 McNamara

 304 21 BY MR. AYLSTOCK:

304:22 - 305:14 McNamara

 304 22 Q. In fact, it goes on, "This makes" -- it

 304 23 looks like a typo there, "This makes it sound like the

 304 24 open mode can be used for any gunfire. If the gun

 305 1 fire is frequent, you want closed mode."

 305 2 Do you see that?

 305 3 A. Where is that?

 305 4 Q. Right -- right below in the comment, right

 305 5 after it says: "I would not recommend it in the open

 305 6 mode for training on the gun range."

 305 7 A. Yes.

 305 8 Q. And then the comment says: "This makes it

 305 9 sound," although there is a typo, so I'll just read it

 305 10 the way it is. "This makes si sound like the open

 305 11 mode can be used for any gunfire. If the gunfire is

 305 12 frequent, you want closed mode."

 305 13 Do you see that?

 305 14 A. Yes.

Re: [304:22-305:14]

Def Obj Foundation (602)

OVERRULED

305:15 - 305:17 McNamara

 305 15 Q. And, again, that's the exact opposite of

 305 16 what you were telling people on military bases when

 305 17 you were training them, correct?

Re: [305:15-305:17]

Def Obj Foundation (602); Asked;

Argumentative; Misstates (611, 403); 

3M MIL No. 15

OVERRULED

305:20 - 305:20 McNamara

 305 20 BY THE WITNESS:

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 140 of 303
McNamara 76

305:21 - 305:21 McNamara

 305 21 A. I believe so.

Re: [305:21-305:21]

Def Obj Foundation (602); Asked; 

Argumentative; Misstates (611, 403); 

3M MIL No. 15

OVERRULED

305:22 - 306:23 McNamara

 305 22 BY MR. AYLSTOCK:

 305 23 Q. Okay. So let's go back to the personnel

 305 24 file, if we could, Exhibit 2. I think we've -- so

 306 1 this Page 11 has the E-A-R symbol on it, correct?

 306 2 A. It does.

 306 3 (WHEREUPON, a certain document was

 306 4 marked Timothy McNamara Deposition

 306 5 Exhibit No. 19, for identification,

 306 6 as of 03/11/2020.)

 306 7 BY MR. AYLSTOCK:

 306 8 Q. And I'm going to show you Plaintiffs'

 306 9 Exhibit 17 --

 306 10 MR. BATTLE: 19.

 306 11 BY MR. AYLSTOCK:

 306 12 Q. 19, yes. Thank you.

 306 13 It has your name on it, so this is now

 306 14 back -- back with what you were dealing with in 2003.

 306 15 Do you see at the top it's an e-mail

 306 16 between you and Mr. Myers dated May 7th, 2003,

 306 17 importance high?

 306 18 Do you see that?

 306 19 A. Yes.

 306 20 Q. And if we drop down, there is a guy -- so

 306 21 you're e-mailing this to Brian, correct? "Here is

 306 22 what I have"?

 306 23 A. Yes.

307:19 - 308:6 McNamara

 307 19 Q. Is that fair?

 307 20 And what Brian Myers does is it looks like

 307 21 he flips it over to you because he says -- responds to

 307 22 Mike and says, "Nothing new from me" -- "Sorry,

 307 23 nothing new from me. I thought Tim may have created

 307 24 something. Have you, Tim?"

 308 1 He is talking to you there, right?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 141 of 303
McNamara 77

 308 2 A. Yes.

 308 3 Q. And it looks like you attach the sell

 308 4 sheet that's being requested here, right, on the

 308 5 second page?

 308 6 A. Yes.

308:7 - 308:9 McNamara

 308 7 Q. And if we compare the sell sheet that you

 308 8 send to Brian Myers at his request -- Brian is way up

 308 9 in the company, right?

Re: [308:7-308:9]

Def Obj Compound; Vague (611, 403)

SUSTAINED

308:11 - 308:11 McNamara

 308 11 BY THE WITNESS:

308:12 - 308:12 McNamara

 308 12 A. He was the product line director, yes.

Re: [308:12-308:12]

Def Obj Compound; Vague (611, 403)

SUSTAINED

310:11 - 310:14 McNamara

 310 11 Q. Okay. So let me go on back to Exhibit 2

 310 12 in your custodial file and ask you a couple of

 310 13 questions about that. Again, this -- if we go to

 310 14 McNamara Subpoena No. 28.

310:22 - 310:24 McNamara

 310 22 BY MR. AYLSTOCK:

 310 23 Q. It has got 28 on the very bottom right.

 310 24 There. You are almost there.

311:3 - 311:10 McNamara

 311 3 So this is the blister pack for the Combat

 311 4 Arms Version 2, correct?

 311 5 A. It is.

 311 6 Q. And it says on here: "Yellow end lets

 311 7 wearers hear clearly with instant protection against

 311 8 weapon noise."

 311 9 Do you see that?

 311 10 A. Yes.

311:3 - 311:10 McNamara

 311 3 So this is the blister pack for the Combat

 311 4 Arms Version 2, correct?

 311 5 A. It is.

 311 6 Q. And it says on here: "Yellow end lets

 311 7 wearers hear clearly with instant protection against

 311 8 weapon noise."

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 142 of 303
McNamara 78

 311 9 Do you see that?

 311 10 A. Yes.

311:3 - 311:10 McNamara

 311 3 So this is the blister pack for the Combat

 311 4 Arms Version 2, correct?

 311 5 A. It is.

 311 6 Q. And it says on here: "Yellow end lets

 311 7 wearers hear clearly with instant protection against

 311 8 weapon noise."

 311 9 Do you see that?

 311 10 A. Yes.

311:11 - 311:13 McNamara

 311 11 Q. And according to your knowledge, that

 311 12 would have included firing range, correct, indoor or

 311 13 outdoor?

Re: [311:11-311:13]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

311:16 - 311:16 McNamara

 311 16 A. I believe so.

Re: [311:16-311:16]

Def Obj Foundation (602); Misstates 

(611, 403)

OVERRULED

311:17 - 311:17 McNamara

 311 17 BY MR. AYLSTOCK:

311:18 - 311:21 McNamara

 311 18 Q. And that's how you trained folks, both

 311 19 distributors that you knew were going to communicate

 311 20 between military personnel, but also military

 311 21 personnel that you trained on this, correct?

Re: [311:18-311:21]

Def Obj Foundation (602); Misstates; 

Argumentative; Vague (611, 403); 3M 

MIL No. 15;

OVERRULED

311:24 - 311:24 McNamara

 311 24 A. As I remember, yes.

Re: [311:24-311:24]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403); 3M MIL No. 

15

OVERRULED

311:25 - 312:1 McNamara

 312 1 BY MR. AYLSTOCK:

312:2 - 312:4 McNamara

 312 2 Q. And you made that representation with the

 312 3 intent that they be able to rely on that and actually

 312 4 use it at a firing range, correct?

Re: [312:2-312:4]

Def Obj Misstates; Compound; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

312:7 - 312:7 McNamara

 312 7 A. As information, yes.

Re: [312:7-312:7]

Def Obj Misstates; Compound; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 143 of 303
McNamara 79

312:8 - 312:8 McNamara

 312 8 BY MR. AYLSTOCK:

312:9 - 312:11 McNamara

 312 9 Q. Okay. And you expected that they should

 312 10 be able to rely on what you tell them and what the

 312 11 company tells them in the sell sheets, correct?

Re: [312:9-312:11]

Def Obj Misstates; Compound; 

Argumentative; (611, 403); Foundation 

(602); 3M MIL No. 15

OVERRULED

312:14 - 312:14 McNamara

 312 14 A. I believe so.

Re: [312:14-312:14]

Def Obj Misstates; Compound; 

Argumentative (611, 403); Foundation 

(602); 3M MIL No. 15

OVERRULED

312:15 - 312:15 McNamara

 312 15 BY MR. AYLSTOCK:

312:16 - 313:14 McNamara

 312 16 Q. Okay. Now, go over a few pages to No. 31

 312 17 at the bottom. It is the image of the -- the

 312 18 servicemen in combat, or at least he is firing --

 312 19 preparing to fire his weapon.

 312 20 Do you see that?

 312 21 A. Yes.

 312 22 Q. And what it says here on this piece is

 312 23 that -- if we look at the bottom of that paragraph, it

 312 24 talks about a patented design, lets wearers hear

 313 1 clearly, protects instantly.

 313 2 Do you see that part?

 313 3 A. Yes.

 313 4 Q. And when it comes to the green end, what's

 313 5 being told to anyone reading this is that the plug

 313 6 will provide a constant NRR of 22 dB.

 313 7 Do you see that?

 313 8 A. Yes.

 313 9 Q. It is not saying may provide, is it?

 313 10 A. No.

 313 11 Q. It's saying -- it is making a

 313 12 representation there that this plug will provide a

 313 13 constant NRR of 22 dB in the green end, fair?

 313 14 A. Yes.

Re: [312:16-313:14]

Def Obj Foundation (602)

OVERRULED

313:17 - 314:6 McNamara

 313 17 Is this another sell sheet or is this a --

 313 18 a brochure or a poster you would give out?

Re: [313:17-314:6]

Def Obj 3M MIL No. 15; Misstates; 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 144 of 303
McNamara 80

 313 19 A. It's a support piece.

 313 20 Q. And this is something you could go to that

 313 21 headquarters at Aearo that we looked at and say, I'm

 313 22 going to go out to some military bases, I need some

 313 23 sell pieces, give me some stuff, and this would be one

 313 24 of the things that you could take with you and did

 314 1 take with you when you visited military bases, fair?

 314 2 A. As I remember, yes.

 314 3 Q. Okay. And when you did that and you

 314 4 handed these out, one of the things that you told the

 314 5 men and women in uniform is that the plug will provide

 314 6 a constant NRR of 22 dB, fair?

Compound; Argumentative (611, 403); 

Foundation (602)

314:9 - 314:16 McNamara

 314 9 A. As it says in the literature, yes.

 314 10 BY MR. AYLSTOCK:

 314 11 Q. Well, and by "literature," you're talking

 314 12 about this sell sheet, correct?

 314 13 A. Correct.

 314 14 Q. Okay. And you didn't tell them anything

 314 15 different than that at any time that you sold the

 314 16 Combat Arms Version 2 --

Re: [314:9-314:16]

Def Obj 3M MIL No. 15; Misstates; 

Compound; Argumentative (611, 403); 

Foundation (602)

OVERRULED

314:19 - 314:20 McNamara

 314 19 Q. -- to a -- a distributor or a military

 314 20 serviceman or woman?

Re: [314:19-314:20]

Def Obj 3M MIL No. 15; Misstates; 

Compound; Argumentative (611, 403); 

Foundation (602)

OVERRULED

314:23 - 314:23 McNamara

 314 23 A. No.

Re: [314:23-314:23]

Def Obj 3M MIL No. 15; Misstates; 

Compound; Argumentative (611, 403); 

Foundation (602)

OVERRULED

314:24 - 315:1 McNamara

 314 24 BY MR. AYLSTOCK:

 315 1 Q. Okay. And when you told them that the

315:1 - 315:6 McNamara

 315 1 Q. Okay. And when you told them that the

 315 2 plug will provide this protection, constant -- a

 315 3 constant NRR of 22 dB, you did that with the intent

 315 4 that they could rely on that as gospel because in --

 315 5 it's important to protect our men and women in uniform

 315 6 from noise pollution, correct?

Re: [315:1-315:6]

Def Obj Foundation (602); 

Argumentative; Compound; Misstates 

(611, 403); 3M MIL No. 15

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 145 of 303
McNamara 81

315:9 - 315:12 McNamara

 315 9 A. As a noise reduction rate of 22, yes.

 315 10 BY MR. AYLSTOCK:

 315 11 Q. And you did that with the intent that they

 315 12 be able to rely on it, fair?

Re: [315:9-315:12]

Def Obj Foundation (602); 

Argumentative; Compound; Misstates 

(611, 403); 3M MIL No. 15

OVERRULED

315:15 - 315:15 McNamara

 315 15 A. As I can remember, yes.

Re: [315:15-315:15]

Def Obj Foundation (602); 

Argumentative; Compound; Misstates 

(611, 403); 3M MIL No. 15

OVERRULED

315:16 - 315:21 McNamara

 315 16 BY MR. AYLSTOCK:

 315 17 Q. Okay. Now let's go to McNamara 36, a

 315 18 few -- few more pages. It's another one of our men in

 315 19 uniform with a helmet on wearing -- wearing the Combat

 315 20 Arms Earplug.

 315 21 Do you see that?

316:5 - 316:13 McNamara

 316 5 Q. This is another sell sheet that you would

 316 6 use in your visits to the military bases and

 316 7 installations over the years, fair?

 316 8 A. As I remember, yes.

 316 9 Q. And this is a -- obviously in your -- this

 316 10 is also something you would provide to distributors to

 316 11 provide to -- who might be selling to the military so

 316 12 they could also rely on this information, fair?

 316 13 A. It would be a support piece, yes.

Re: [316:5-316:13]

Def Obj 3M MIL No. 15; Foundation 

(602)

OVERRULED

316:14 - 316:16 McNamara

 316 14 Q. Okay. And, again, this is something --

 316 15 the representations in here are something that you

 316 16 intended the military to be able to rely upon, fair?

Re: [316:14-316:16]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); 3M MIL 

No. 15

OVERRULED

316:19 - 316:19 McNamara

 316 19 A. As part of a support piece.

Re: [316:19-316:19]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); 3M MIL 

No. 15

OVERRULED

316:20 - 316:20 McNamara

 316 20 BY MR. AYLSTOCK:

316:21 - 316:22 McNamara

 316 21 Q. Is that a yes?

 316 22 A. That's a yes.

Re: [316:21-316:22]

Def Obj Misstates; Argumentative 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 146 of 303
McNamara 82

(611, 403); Foundation (602); 3M MIL 

No. 15

316:23 - 317:14 McNamara

 316 23 Q. Okay. Thank you.

 316 24 So if we look at the picture of the man

 317 1 here with his helmet, this has the yellow end

 317 2 completely in his ear, fair?

 317 3 A. Yes.

 317 4 Q. And so this is the open -- what we would

 317 5 call the open end is in, the yellow end is in and the

 317 6 olive end is out, fair?

 317 7 A. Yes.

 317 8 Q. And the olive end is actually the third

 317 9 flange that's actually up against the -- I guess they

 317 10 call that the tragus.

 317 11 Do you know what a tragus is?

 317 12 A. Yes.

 317 13 Q. This is up against his tragus, correct?

 317 14 A. It appears, yes.

Re: [316:23-317:14]

Def Obj Foundation (602); 3M MIL 

No. 15

OVERRULED

317:15 - 317:17 McNamara

 317 15 Q. Okay. And that is a representation of how

 317 16 you trained people to put the plug in when it came to

 317 17 the open end, fair?

Re: [317:15-317:17]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); 3M MIL 

No. 15

OVERRULED

317:20 - 317:20 McNamara

 317 20 A. I don't know.

Re: [317:20-317:20]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); 3M MIL 

No. 15

OVERRULED

317:21 - 317:21 McNamara

 317 21 BY MR. AYLSTOCK:

317:22 - 318:1 McNamara

 317 22 Q. Well, you wouldn't expect the picture of

 317 23 how to -- of this individual wearing it to be

 317 24 different than how you had trained people to put it

 318 1 in, fair?

Re: [317:22-318:1]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); 3M MIL 

No. 15

OVERRULED

318:4 - 318:9 McNamara

 318 4 A. It depends on the individual, but yes.

 318 5 BY MR. AYLSTOCK:

 318 6 Q. Okay. And that would also be the case if

 318 7 the olive end was in and the yellow end was out, it

Re: [318:4-318:9]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); 3M MIL 

No. 15

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 147 of 303
McNamara 83

 318 8 should -- because it's a symmetrical product, it

 318 9 should be the same on both ways, correct?

318:12 - 318:13 McNamara

 318 12 Q. Is that -- is that how you trained people

 318 13 to put it in --

Re: [318:12-318:13]

Def Obj Misstates; Argumentative 

(611, 403); Foundation (602); 3M MIL 

No. 15

OVERRULED

318:16 - 318:23 McNamara

 318 16 Q. -- the same in both way, whether it is a

 318 17 yellow or a green?

 318 18 A. Yes.

 318 19 Q. So if the green end was in, it would

 318 20 also -- you would train people to do it as represented

 318 21 in this photograph, except for the yellow end being

 318 22 out instead of the green end, is that right?

 318 23 A. Yes.

Re: [318:16-318:23]

Def Obj Foundation (602); 3M MIL 

No. 15

OVERRULED

319:5 - 320:10 McNamara

 319 5 So go now to the next page, 37. Is this

 319 6 another sell sheet that you could go to that Aearo

 319 7 corporate headquarters and get when you were visiting

 319 8 military bases and hand out to the people you were

 319 9 training on using the Combat Arms Version 2?

 319 10 A. I believe so, but I don't recall if this

 319 11 was the back page of the other one or not.

 319 12 Q. Oh, okay. Well, in any event, again,

 319 13 these are materials that you intended the men and

 319 14 women in uniform to be able to rely upon in learning

 319 15 about the Combat Arms Version 2, correct?

 319 16 A. Yes.

 319 17 Q. And, again, it talks about this green end

 319 18 of the Combat Arms Earplugs, provides steady

 319 19 protection with an NRR of 22 dB.

 319 20 Do you see that?

 319 21 A. Yes.

 319 22 Q. And this is the ideal wearing position

 319 23 when exposed to constant high-level sound of 85 dB and

 319 24 above.

 320 1 Do you see that? Right below the dB of

 320 2 22. It might be helpful on the screen.

 320 3 A. Okay. There it is.

Re: [319:5-320:10]

Def Obj Foundation (602); 3M MIL 

No. 15

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 148 of 303
McNamara 84

 320 4 Okay. Yes.

 320 5 Q. Okay. And so, again, these -- this is

 320 6 consistent with representations you were making when

 320 7 you were visiting these military installations and

 320 8 educating the military about the Combat Arms Earplug,

 320 9 fair?

 320 10 A. Yes.

320:23 - 321:5 McNamara

 320 23 You know that this Combat Arms Version 2

 320 24 earplug was manufactured by your company that you were

 321 1 working for at the time, Aearo, correct?

 321 2 A. Correct.

 321 3 Q. And it was tested there in Mr. Berger's

 321 4 lab that -- that you're familiar with, correct?

 321 5 A. Correct.

321:6 - 321:8 McNamara

 321 6 Q. And the results of the tests were known to

 321 7 Aearo, fair, and they are the ones --

 321 8 A. Yes.

Re: [321:6-321:8]

Def Obj Foundation (602)

OVERRULED

321:9 - 321:10 McNamara

 321 9 Q. And they are -- they are the company that

 321 10 designed the plug, correct?

Re: [321:9-321:10]

Def Obj Misstates (611, 403); 

Foundation (602)

OVERRULED

321:13 - 321:13 McNamara

 321 13 A. I'm not sure.

Re: [321:13-321:13]

Def Obj Misstates (611, 403); 

Foundation (602)

OVERRULED

321:14 - 321:14 McNamara

 321 14 BY MR. AYLSTOCK:

321:15 - 321:19 McNamara

 321 15 Q. Okay. Well, when it comes to what you

 321 16 were doing when you were out there communicating with

 321 17 the men and women in uniform about these earplugs, it

 321 18 is fair to say your job was to educate them on the

 321 19 characteristics and proper use of this earplug, fair?

Re: [321:15-321:19]

Def Obj Foundation (602); Misstates; 

Compound; Argumentative (611, 403); 

3M MIL No. 15

OVERRULED

321:22 - 321:22 McNamara

 321 22 A. Yes.

Re: [321:22-321:22]

Def Obj Foundation (602); Misstates; 

Compound; Argumentative (611, 403); 

3M MIL No. 15

OVERRULED

321:23 - 321:23 McNamara

 321 23 BY MR. AYLSTOCK:

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 149 of 303
McNamara 85

321:24 - 322:2 McNamara

 321 24 Q. And you did that because you wanted to

 322 1 sell more Combat Arms earplugs, that was your job,

 322 2 right?

Re: [321:24-322:2]

Def Obj Misstates; Compound; 

Argumentative (611, 403); Foundation 

(602); 3M MIL No. 15

OVERRULED

322:5 - 322:5 McNamara

 322 5 A. Yes.

Re: [322:5-322:5]

Def Obj Misstates; Compound; 

Argumentative (611, 403); Foundation 

(602); 3M MIL No. 15

OVERRULED

322:6 - 322:6 McNamara

 322 6 BY MR. AYLSTOCK:

322:7 - 322:13 McNamara

 322 7 Q. And over the years, it's fair to say that

 322 8 you handed out thousands of these type sell sheets

 322 9 across military bases, correct?

 322 10 A. Yes.

 322 11 Q. You wouldn't -- you wouldn't fuss with me

 322 12 about that, would you?

 322 13 A. Yes.

Re: [322:7-322:13]

Def Obj 3M MIL No. 15; Foundation 

(602); Argumentative (611, 403)

OVERRULED

322:15 - 322:24 McNamara

 322 15 where is Operation Cobra? Oh, here we are. Let me

 322 16 ask you about this document.

 322 17 Are you familiar with the Operation Cobra?

 322 18 A. I don't recall.

 322 19 (WHEREUPON, a certain document was

 322 20 marked Timothy McNamara Deposition

 322 21 Exhibit No. 20, for identification,

 322 22 as of 03/11/2020.)

 322 23 BY MR. AYLSTOCK:

 322 24 Q. It is Exhibit 20 in front of you.

323:9 - 323:23 McNamara

 323 9 Q. Mr. Salon was your boss, right?

 323 10 A. At one time.

 323 11 Q. Well, on July 29th of 2005, the date of

 323 12 this document, he was your boss, right?

 323 13 A. I believe so.

 323 14 Q. All right. And I'll -- let's start at

 323 15 the -- at the first page there. He is e-mailing a

 323 16 number of folks, including Mike Cimino, also your

 323 17 boss, right?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 150 of 303
McNamara 86

 323 18 A. Yes.

 323 19 Q. And Doug Moses, we talked about him, you

 323 20 knew him, right?

 323 21 A. Yes.

 323 22 Q. And Santoro, you know him?

 323 23 A. Yes.

324:16 - 324:18 McNamara

 324 16 Does this jog your memory as to Operation

 324 17 Cobra around this timeframe?

 324 18 A. I -- I don't -- I don't recall.

324:19 - 325:4 McNamara

 324 19 Q. Well, one of the things that Operation

 324 20 Cobra did, according to this document, is some direct

 324 21 mail, 7,000 purchasing and procurement people,

 324 22 including -- and then it also says: "We estimate we

 324 23 will have an additional 1,000 mailers/leave-behind

 324 24 tubes for the sales force to distribute."

 325 1 Do you see that?

 325 2 A. Yes.

 325 3 Q. So you're part of the sales force, right?

 325 4 A. Yes.

Re: [324:19-325:4]

Def Obj Foundation (602)

OVERRULED

325:5 - 325:7 McNamara

 325 5 Q. So do you remember that generally speaking

 325 6 you had these tubes of leave-behind materials, big

 325 7 posters and such, right?

Re: [325:5-325:7]

Def Obj Vague; Compound (611, 403)

OVERRULED

325:10 - 325:10 McNamara

 325 10 A. As I remember, yes, yeah.

Re: [325:10-325:10]

Def Obj Vague; Compound (611, 403)

OVERRULED

327:9 - 327:23 McNamara

 327 9 Q. Okay. So, but you do remember, I think

 327 10 you just said that you remember getting these tubes?

 327 11 A. Yes.

 327 12 Q. And what was in the tubes?

 327 13 A. I don't remember. I -- I don't remember

 327 14 specifically.

 327 15 Q. What about generally speaking? They would

 327 16 be these sell sheets, right?

 327 17 A. I believe so.

 327 18 Q. Okay. And these were designed to go to

 327 19 you as part of the sales force to leave behind on the

Re: [327:9-327:23]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 151 of 303
McNamara 87

 327 20 military bases so they could be put up wherever to

 327 21 remind people to use hearing protection and that they

 327 22 should use the Combat Arms Version 2 hearing

 327 23 protection, fair?

328:1 - 328:2 McNamara

 328 1 BY THE WITNESS:

 328 2 A. I -- I believe so.

Re: [328:1-328:2]

Def Obj Foundation (602)

OVERRULED

328:3 - 328:3 McNamara

 328 3 BY MR. AYLSTOCK:

328:4 - 328:8 McNamara

 328 4 Q. Okay. And, in fact, you did that, you

 328 5 left behind these tubes with the various people that

 328 6 you went to so that they would have access to

 328 7 information, these sell sheets, when it came to the

 328 8 Combat Arms, fair?

Re: [328:4-328:8]

Def Obj Foundation (602); Misstates; 

Compound (611, 403)

OVERRULED

328:11 - 328:12 McNamara

 328 11 BY THE WITNESS:

 328 12 A. I -- I don't remember it. I believe that

Re: [328:11-328:12]

Def Obj Foundation (602); Misstates; 

Compound (611, 403)

OVERRULED

328:13 - 328:13 McNamara

 328 13 was -- if that's the -- yeah, the intent, yes.

Re: [328:13-328:13]

Def Obj Foundation (602); Misstates; 

Compound (611, 403)

OVERRULED

328:14 - 328:14 McNamara

 328 14 BY MR. AYLSTOCK:

328:15 - 329:1 McNamara

 328 15 Q. Okay. It also talks about you could

 328 16 contact customer service for additional samples.

 328 17 That's that building in Indianapolis we looked at

 328 18 earlier?

 328 19 A. It was another building, but, yes, in

 328 20 In- -- in Indianapolis.

 328 21 Q. Okay. Fair enough.

 328 22 It also talks about, looks like, some

 328 23 full-page ads to be run in some trade publications.

 328 24 Do you see that?

 329 1 A. Yes.

Re: [328:15-329:1]

Def Obj Foundation (602)

OVERRULED

329:2 - 329:5 McNamara

 329 2 Q. And that would help you as the person on

 329 3 the ground who was out meeting with people actually

Re: [329:2-329:5]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 152 of 303
McNamara 88

 329 4 raise awareness so that you could better sell the

 329 5 Combat Arms, fair?

329:8 - 329:9 McNamara

 329 8 A. It was a -- it would have been a support

 329 9 piece.

Re: [329:8-329:9]

Def Obj Foundation (602)

OVERRULED

329:15 - 329:19 McNamara

 329 15 Q. Okay. And, in fact, we were able to look

 329 16 in some of these magazines. Here is Exhibit 21, for

 329 17 Stars and Stripes.

 329 18 You know what that is, right, sir?

 329 19 A. Yeah, I -- yes.

330:5 - 330:7 McNamara

 330 5 Q. I mean, Stars and Stripes, this is

 330 6 distributed across all military branches to all of our

 330 7 people serving this country in uniform, correct?

Re: [330:5-330:7]

Def Obj Foundation (602)

OVERRULED

330:10 - 330:10 McNamara

 330 10 A. Yes.

Re: [330:10-330:10]

Def Obj Foundation (602)

OVERRULED

330:11 - 330:11 McNamara

 330 11 BY MR. AYLSTOCK:

330:12 - 331:8 McNamara

 330 12 Q. And it looks like right here they did

 330 13 exactly what Operation Cobra said that they were going

 330 14 to do, and they put a copy of this exact sell sheet

 330 15 that we were looking at with the earplug inserted

 330 16 in -- into the soldier's ear.

 330 17 Do you see that?

 330 18 A. I do.

 330 19 Q. That's the same -- the same thing that

 330 20 was -- was in the materials you produced to us, fair?

 330 21 A. Yes.

 330 22 Q. And there is nothing in here about folding

 330 23 the flanges back; certainly not represented in the

 330 24 picture, is it?

 331 1 A. Not in the picture, no.

 331 2 Q. And there is nothing in the words about

 331 3 folding the flanges back, is there?

 331 4 A. Not that I can see. It's small.

 331 5 Q. Well, take your time.

 331 6 A. Yeah.

Re: [330:12-331:8]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 153 of 303
McNamara 89

 331 7 Q. If you need glasses, we could --

 331 8 A. No. That's...

331:9 - 331:12 McNamara

 331 9 Q. All right. And, in fact, this is the

 331 10 picture where the earplug is inserted in, you can't

 331 11 even see the yellow end, and the -- the third flange

 331 12 of the olive end is touching the tragus, right?

Re: [331:9-331:12]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

331:15 - 331:15 McNamara

 331 15 A. I believe so.

Re: [331:15-331:15]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

331:16 - 331:16 McNamara

 331 16 BY MR. AYLSTOCK:

331:17 - 331:18 McNamara

 331 17 Q. Okay. And this is consistent with how you

 331 18 trained people to put it in, correct?

Re: [331:17-331:18]

Def Obj Foundation (602); Misstates; 

Argumentative; Asked (611, 403) 3M 

MIL No. 15

OVERRULED

331:21 - 331:21 McNamara

 331 21 A. I believe so.

Re: [331:21-331:21]

Def Obj Foundation (602); Misstates; 

Argumentative; Asked (611, 403); 3M 

MIL No. 15

OVERRULED

334:10 - 334:22 McNamara

 334 10 Q. All right. Now go down to No. 5 on

 334 11 Operation Cobra, the samples. "Each salesperson will

 334 12 receive one box (50-pair) of dual-ended ear --

 334 13 earplugs."

 334 14 Do you see that?

 334 15 A. I do.

 334 16 Q. So you remember getting samples that you

 334 17 could hand out at military bases, true?

 334 18 A. Yes.

 334 19 Q. And you did that, right?

 334 20 A. Yes.

 334 21 Q. Regularly?

 334 22 A. Yes.

Re: [334:10-334:22]

Def Obj Foundation (602)

OVERRULED

334:23 - 335:2 McNamara

 334 23 Q. Okay. And you did that to help drive

 334 24 sales, that was -- as we saw from your CV, that was

 335 1 what you did at Aearo, is you drove sales of the

 335 2 hearing protection, true?

Re: [334:23-335:2]

Def Obj Misstates; Argumentative; 

Compound (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 154 of 303
McNamara 90

335:5 - 335:5 McNamara

 335 5 A. I -- I placed product, yes.

Re: [335:5-335:5]

Def Obj Misstates; Argumentative; 

Compound (611, 403)

OVERRULED

335:6 - 335:9 McNamara

 335 6 BY MR. AYLSTOCK:

 335 7 Q. Okay. And you placed product and that

 335 8 helps drive sales, fair?

 335 9 A. Yes.

335:10 - 335:11 McNamara

 335 10 Q. Okay. And so when it came to Operation

 335 11 Cobra, you did your job for Aearo, fair?

Re: [335:10-335:11]

Def Obj Argumentative; Vague (611, 

403)

OVERRULED

335:14 - 335:14 McNamara

 335 14 A. I believe so.

Re: [335:14-335:14]

Def Obj Argumentative; Vague (611, 

403)

OVERRULED

335:15 - 335:15 McNamara

 335 15 BY MR. AYLSTOCK:

335:16 - 335:17 McNamara

 335 16 Q. In fact, you did it so well you won an

 335 17 award two years in a row, Top Gun?

Re: [335:16-335:17]

Def Obj Argumentative; Vague (611, 

403)

OVERRULED

335:19 - 335:19 McNamara

 335 19 BY THE WITNESS:

335:20 - 335:20 McNamara

 335 20 A. Yes.

Re: [335:20-335:20]

Def Obj Argumentative; Vague (611, 

403)

OVERRULED

343:6 - 343:8 McNamara

 343 6 Q. O you think that the men and women

 343 7 fighting for this country in combat deserved the best

 343 8 product possible?

Re: [343:6-343:8]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403); Relevance 

(401, 402); Prejudice (403); 701

SUSTAINED

343:11 - 343:12 McNamara

 343 11 BY THE WITNESS:

 343 12 A. Yes.

Re: [343:11-343:12]

Def Obj Foundation (602); Vague; 

Argumentative (611, 403); Relevance 

(401, 402); Prejudice (403); 701

SUSTAINED

343:13 - 343:16 McNamara

 343 13 BY MR. AYLSTOCK:

 343 14 Q. Do you think they deserved to be told the

 343 15 truth about the products they were wearing, the

 343 16 hearing protection they were wearing?

Re: [343:13-343:16]

Def Obj Foundation (602); Vague; 

Argumentative; Asked (611, 403); 

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

701

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 155 of 303
McNamara 91

343:19 - 343:20 McNamara

 343 19 BY THE WITNESS:

 343 20 A. Yes.

Re: [343:19-343:20]

Def Obj Foundation (602); Vague; 

Argumentative; Asked (611, 403); 

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

701

OVERRULED

415:17 - 415:19 McNamara

 415 17 MR. AYLSTOCK: Mr. McNamara, on behalf of the

 415 18 servicemen and women I represent, I thank you for your

 415 19 time. At this point, I have no further questions.

Re: [415:17-415:19]

Def Obj Relevance (401, 402); 

Prejudice (403); 3M MIL No. 10

SUSTAINED

415:20 - 415:20 McNamara

 415 20 THE WITNESS: Okay. Thank you.

415:22 - 416:3 McNamara

 415 22 BY MS. ELIZABETH:

 415 23 Q. Good evening, Mr. McNamara. My name is

 415 24 Sierra Elizabeth and I represent 3M in this action.

 416 1 You understand that you are still under

 416 2 oath?

 416 3 A. I do.

Re: [415:22-416:3]

Pltf Obj improper counter designation 

per PTO 64

OVERRULED

417:1 - 417:14 McNamara

 417 1 Q. Do you have any knowledge about whether

 417 2 Aearo concealed anything from the government about

 417 3 CAE v2?

 417 4 A. No.

 417 5 Q. I want to direct your attention to

 417 6 Exhibit 2 in your stack there.

 417 7 A. Is that my resume?

 417 8 Q. It's a stack including the documents that

 417 9 were produced in response to the subpoena that was

 417 10 issued to you, including your resume, yes. It should

 417 11 be at the beginning of your pile.

 417 12 A. There it is right there.

 417 13 Q. Do you have Exhibit 2 there?

 417 14 A. Yes.

Re: [417:1-417:14]

Pltf Obj improper counter designation 

per PTO 64

OVERRULED

417:21 - 420:9 McNamara

 417 21 Q. I want to direct your attention to Bates

 417 22 stamp McNamara Subpoena 0035.

 417 23 A. Okay.

 417 24 Q. This document was in your files, correct?

 418 1 A. Yes.

Re: [417:21-420:9]

Pltf Obj improper counter designation 

per PTO 64

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 156 of 303
McNamara 92

 418 2 Q. Do you recognize this document?

 418 3 A. Yes.

 418 4 Q. What is it?

 418 5 A. It's a support piece for the Com -- Combat

 418 6 Arms Earplug.

 418 7 Q. And is this a support piece that you had

 418 8 provided to your military contacts when you were

 418 9 selling CAE v2?

 418 10 A. Yes.

 418 11 Q. Do you remember you were asked some

 418 12 questions about gun ranges, indoor and outdoor gun

 418 13 ranges during your deposition today?

 418 14 A. Yes.

 418 15 Q. What do you specifically remember telling

 418 16 anyone from the military about how to use CAE v2 in an

 418 17 indoor gun range?

 418 18 A. I -- I did not. I -- I -- I said it was

 418 19 an impulse noise for gunfire.

 418 20 Q. What info -- information did you share

 418 21 about the yellow end of the CAE v2 to your military

 418 22 contacts that you can specifically recall?

 418 23 A. That it is a impulse -- impulse plug.

 418 24 It's designed to protect you against gunfire.

 419 1 Q. Okay. Do you have any specific

 419 2 recollection of any other statements that you made

 419 3 about the yellow end of the CAE v2?

 419 4 A. No.

 419 5 Q. Throughout your deposition testimony

 419 6 today, you were asked questions about selling to,

 419 7 quote, end users, end quote.

 419 8 Do you remember that, those questions?

 419 9 A. Yes.

 419 10 Q. Who are the end users that you were

 419 11 selling to when you worked for Aearo selling CAE v2?

 419 12 A. The command staff of the various branches.

 419 13 Q. Okay. And who are the command staff?

 419 14 A. That would be the S4s and the S6. One is

 419 15 a forced modern -- modernization. One is the -- the

 419 16 money guy, and the sergeant major, the -- the command

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 157 of 303
McNamara 93

 419 17 sergeant major, the colonel, the lieutenant colonel

 419 18 and so forth, yes.

 419 19 Q. Do you consider command staff to be

 419 20 soldiers?

 419 21 A. No.

 419 22 Q. Did you ever sell any CAE v2 directly to

 419 23 soldiers?

 419 24 A. Yes.

 420 1 Can I qualify that last statement?

 420 2 Q. Sure.

 420 3 A. They are soldiers, but they are not

 420 4 individual soldiers on -- on the firing line. They

 420 5 are the -- the -- the management staff.

 420 6 Q. Okay. Did you ever sell to, quote,

 420 7 soldiers that were individual soldiers on the firing

 420 8 line for -- with respect to CAE v2?

 420 9 A. No.

420:15 - 421:23 McNamara

 420 15 Q. Okay. I want to hand you what has been

 420 16 marked as Exhibit 34 to your deposition. I only have

 420 17 one copy here, and it has my notes on it, but that's

 420 18 okay.

 420 19 Okay. I want to direct your attention to

 420 20 the middle e-mail of Exhibit 34, and that's an e-mail

 420 21 from Brian Myers on April 17th, 2002 to Doug Ohlin and

 420 22 others, including yourself, is that right?

 420 23 A. Yes.

 420 24 Q. Okay. And the first line of that middle

 421 1 part of Exhibit 34 says, quote, thanks for copying me

 421 2 on this memo, end quote.

 421 3 Do you see that?

 421 4 A. Yes.

 421 5 Q. Okay. And if you look at the e-mail that

 421 6 came before the Brian Myers e-mail of April 17th,

 421 7 2002, there is an e-mail of April 16th, 2002.

 421 8 Do you see that?

 421 9 A. Yes.

 421 10 Q. And who was the author of that e-mail?

 421 11 A. That was Doug -- that was Doug Ohlin.

Re: [420:15-421:23]

Pltf Obj improper counter designation 

per PTO 64; Foundation 

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 158 of 303
McNamara 94

 421 12 Q. Okay. And I want to direct your attention

 421 13 to the second paragraph of that e-mail, about four

 421 14 lines down, which says: "The dual-ended plug will fit

 421 15 a majority of the male population. For those with

 421 16 excessively large ear canals, we recommend that the

 421 17 opposing plug be folded back before attempting

 421 18 insertion."

 421 19 Do you see that?

 421 20 A. Yes.

 421 21 Q. What is your -- who, to your -- to the

 421 22 best of your knowledge wrote that language that I just

 421 23 read?

422:2 - 422:9 McNamara

 422 2 A. I do not -- I don't know.

 422 3 BY MS. ELIZABETH:

 422 4 Q. Do you see Doug Ohlin's name there?

 422 5 A. Yes, Doug O --

 422 6 BY MS. ELIZABETH:

 422 7 Q. Do you have any re --

 422 8 BY THE WITNESS:

 422 9 A. Doug -- Doug Ohlin.

Re: [422:2-422:9]

Pltf Obj improper counter designation 

per PTO 64; Foundation 

DEFER RULING

422:12 - 422:18 McNamara

 422 12 Q. Do you have any reason to believe that

 422 13 Doug Ohlin did not send this e-mail?

 422 14 A. No, I do not.

 422 15 Q. Do you have any reason to believe that you

 422 16 did not receive the e-mail above it that's been

 422 17 forwarded to you from Brian Myers on April 17, 2002?

 422 18 A. No.

Re: [422:12-422:18]

Pltf Obj improper counter designation 

per PTO 64; Foundation 

DEFER RULING

422:19 - 424:20 McNamara

 422 19 (WHEREUPON, a certain document was

 422 20 marked Timothy McNamara Deposition

 422 21 Exhibit No. 35, for identification,

 422 22 as of 03/11/2020.)

 422 23 BY MS. ELIZABETH:

 422 24 Q. Okay. I want to direct your attention to

 423 1 Exhibit 35 to your deposition.

 423 2 Exhibit 35 is an e-mail chain from Doug

 423 3 Ohlin to various people, including you, on

Re: [422:19-424:20]

Pltf Obj improper counter designation 

per PTO 64

DEFER RULING

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 159 of 303
McNamara 95

 423 4 October 4th, 2004.

 423 5 Do you see that?

 423 6 A. Yes.

 423 7 Q. Okay. And it reads: "These will be

 423 8 wallet-sized laminated cards to be issued with the

 423 9 earplugs. Any comments other than the need to correct

 423 10 the NSN for the double-ended plug to

 423 11 6515-01-466-2710?"

 423 12 Do you see that?

 423 13 A. I do.

 423 14 Q. Do you have any reason to believe you did

 423 15 not receive this e-mail?

 423 16 A. No.

 423 17 Q. Okay. I want to direct your attention to

 423 18 the attachment of this e-mail, which is on Bates 3M

 423 19 MDL 13299 and 13300, and I'll specifically point you

 423 20 to the Bates stamp Page 13300.

 423 21 Are you there?

 423 22 A. I am.

 423 23 Q. Okay. Do you recognize what's depicted on

 423 24 this page?

 424 1 A. Yes.

 424 2 Q. What is it?

 424 3 A. It is a wallet-size card instruction

 424 4 manual.

 424 5 Q. Okay. Have you seen this before?

 424 6 A. Yes.

 424 7 Q. And there are various pictures on the

 424 8 wallet card, right?

 424 9 A. Yes.

 424 10 Q. Okay. Can you please tell the jury what

 424 11 is depicted on the right-hand side of this wallet

 424 12 card, the right-hand corner of this wallet card?

 424 13 A. It is the Combat Arms Earplug with the

 424 14 impulse noise out and the steady state plug in with

 424 15 the end folded out.

 424 16 Q. And when you say "the end folded out,"

 424 17 what do you mean?

 424 18 A. The flap folded up.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 160 of 303
McNamara 96

 424 19 MS. ELIZABETH: I don't think I have any further

 424 20 questions.

430:16 - 431:2 McNamara

 430 16 Q. Exhibit 34. "The dual end will fit a

 430 17 majority of the adult male population. For those with

 430 18 excessively large ear canals, we recommend the

 430 19 opposing plug be folded back before attempting

 430 20 insertion."

 430 21 And then others at your company were

 430 22 copied for comment on the next e-mail -- the next

 430 23 exhibit you-all looked at, and you looked at the

 430 24 wallet card.

 431 1 Do you remember that?

 431 2 A. Yes.

431:3 - 431:6 McNamara

 431 3 Q. Now, are you aware, Mr. McNamara, that in

 431 4 this very case Elliott Berger has testified under

 431 5 oath?

 431 6 A. I'm not aware specifically.

Re: [431:3-431:6]

Def Obj Foundation (602)

SUSTAINED

431:7 - 431:10 McNamara

 431 7 Q. Okay. Has anybody told you that Elliott

 431 8 Berger testified under oath that what Doug Ohlin put

 431 9 in this e-mail that you-all read into the record was

 431 10 wrong?

Re: [431:7-431:10]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

SUSTAINED

431:14 - 431:14 McNamara

 431 14 A. I'm not aware of that.

Re: [431:14-431:14]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

SUSTAINED

431:15 - 431:15 McNamara

 431 15 BY MR. TRACEY:

431:16 - 431:19 McNamara

 431 16 Q. Okay. Are you aware that Elliott Berger

 431 17 testified that their testing did not disclose that

 431 18 only those with very large ear canals should fold back

 431 19 the flanges?

Re: [431:16-431:19]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

SUSTAINED

431:21 - 432:3 McNamara

 431 21 BY THE WITNESS:

 431 22 A. No.

 431 23 BY MR. TRACEY:

 431 24 Q. Are you aware of whether anybody from your

Re: [431:21-432:3]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 161 of 303
McNamara 97

 432 1 company corrected Doug Ohlin's misinterpretation or

 432 2 misstatement of fact that you read into the record

 432 3 with your lawyer?

432:5 - 432:6 McNamara

 432 5 BY THE WITNESS:

 432 6 A. I'm not aware of.

Re: [432:5-432:6]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

SUSTAINED

434:10 - 434:12 McNamara

 434 10 Q. Have you ever heard until your lawyer read

 434 11 it into the record ten minutes ago anything about

 434 12 folding back the flanges with very large ear canals?

Re: [434:10-434:12]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

434:14 - 434:14 McNamara

 434 14 BY THE WITNESS:

434:15 - 434:15 McNamara

 434 15 A. I don't remember.

Re: [434:15-434:15]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403)

OVERRULED

434:16 - 434:16 McNamara

 434 16 BY MR. TRACEY:

434:17 - 434:23 McNamara

 434 17 Q. Okay. In all of your time going from base

 434 18 to base, to commander to commander with your

 434 19 PowerPoints and going to distributors and doing what

 434 20 you do with your duffel bag full of stuff, had you

 434 21 ever instructed anybody when you were -- when you were

 434 22 doing your training to fold back the flanges in very

 434 23 large ear canals?

Re: [434:17-434:23]

Def Obj Foundation (602); 3M MIL 

No. 15; Argumentative; Compound 

(611, 403)

OVERRULED

435:4 - 435:5 McNamara

 435 4 BY THE WITNESS:

 435 5 A. I -- I don't remember.

Re: [435:4-435:5]

Def Obj Foundation (602); 3M MIL 

No. 15; Argumentative; Compound 

(611, 403)

OVERRULED

435:11 - 435:15 McNamara

 435 11 Q. You never one time can remember

 435 12 instructing people to fold back the flanges when you

 435 13 were doing your training with Combat Arms Version 2?

 435 14 A. Not that I recall.

 435 15 Q. No.

Re: [435:11-435:15]

Def Obj 3M MIL No. 15; Foundation 

(602)

OVERRULED

435:16 - 435:19 McNamara

 435 16 And -- and you certainly have never seen

 435 17 any literature from your company that purports to

Re: [435:16-435:19]

Def Obj Foundation (602); 

Argumentative; Mistates (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 162 of 303
McNamara 98

 435 18 claim that those with the very large ear canals should

 435 19 fold back the flanges, have you?

435:22 - 435:22 McNamara

 435 22 A. Not that I can recall.

Re: [435:22-435:22]

Def Obj Foundation (602); 

Argumentative; Mistates (611, 403)

OVERRULED

435:24 - 436:7 McNamara

 435 24 Q. Okay. Do you -- do you know the genesis

 436 1 of this wallet card, how it came to be?

 436 2 A. I don't know the exact genesis, but we

 436 3 provided it as a support piece.

 436 4 Q. "We" meaning Aearo?

 436 5 A. "We" meaning Aearo, yes.

 436 6 Q. Okay.

 436 7 MR. TRACEY: Thank you, Mr. McNamara.

Re: [435:24-436:7]

Def Obj Foundation (602)

OVERRULED

436:11 - 436:12 McNamara

 436 11 Q. I just have a couple of follow-up

 436 12 questions, Mr. McNamara.

436:15 - 437:3 McNamara

 436 15 Q. Exhibit -- Exhibit 34 that was shown to

 436 16 you by your lawyer, this wallet card developed by

 436 17 Aearo. Read what it says here by my finger, "for very

 436 18 large ear canals."

 436 19 A. Can you expand that?

 436 20 Q. Let me see.

 436 21 A. On -- under --

 436 22 Q. "For very large ear canals"?

 436 23 A. Oh, "for very large ear canals, fold

 436 24 opposing plug back."

 437 1 Q. And it says "very large," right, "very

 437 2 large"?

 437 3 A. Yes.

439:1 - 439:19 McNamara

 439 1 Q. And if we go to Exhibit 30, the flange

 439 2 report --

 439 3 MR. AYLSTOCK: Can you pull up Exhibit 30,

 439 4 please, and let's go off the Elmo.

 439 5 MR. TRACEY: He's got it.

 439 6 BY MR. AYLSTOCK:

 439 7 Q. Oh, here we go, Exhibit 30. If you go to

Re: [439:1-439:19]

Def Obj Foundation (602); Relevance 

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

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 163 of 303
McNamara 99

 439 8 the paragraph that begins: "For Test 213015, the

 439 9 plugs were fit according to the standard plug's

 439 10 fitting instructions with no modifications."

 439 11 Do you see that?

 439 12 A. I do.

 439 13 Q. And it says: "Because the stem of the

 439 14 green, solid end of the plug is so short, it was

 439 15 difficult for the experimenter to insert the plug into

 439 16 some subjects' ear canals, especially those with" --

 439 17 "subjects with medium and larger ear canals."

 439 18 Did I read that reasonably correctly?

 439 19 A. That was exactly what it says.

439:20 - 439:23 McNamara

 439 20 Q. Now, you would agree with me that this

 439 21 says something very different than what Dr. Ohlin is

 439 22 asking for review and comment on with the wallet card

 439 23 where it says "very large ear canals," correct?

Re: [439:20-439:23]

Def Obj Foundation (602); Misstates; 

Argumentative; Asked (611, 403)

OVERRULED

440:2 - 440:5 McNamara

 440 2 BY MR. AYLSTOCK:

 440 3 Q. Well, it says "medium and larger ear

 440 4 canals" here, doesn't it?

 440 5 A. Yes.

440:6 - 440:11 McNamara

 440 6 Q. That's not what Dr. Ohlin said when he

 440 7 asked you and Mr. Berger and Mr. Myers to review the

 440 8 proof of the Aearo wallet card that was going to be

 440 9 sent to men and women in service all across this

 440 10 country and around the world, those words are

 440 11 different, aren't they, sir?

Re: [440:6-440:11]

Def Obj Foundation (602); Misstates; 

Argumentative; Compound (611, 403)

OVERRULED

440:15 - 440:15 McNamara

 440 15 A. Yes.

Re: [440:15-440:15]

Def Obj Foundation (602); Misstates; 

Argumentative; Compound (611, 403)

OVERRULED

440:16 - 440:16 McNamara

 440 16 BY MR. AYLSTOCK:

440:17 - 440:22 McNamara

 440 17 Q. Okay. It stands to reason based upon this

 440 18 that Dr. Ohlin must not have got this document, the

 440 19 flange report, because if he did, he might have put,

 440 20 Don't use it for medium or larger ear canals without

Re: [440:17-440:22]

Def Obj Foundation (602); 

Argumentative (611, 403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 164 of 303
McNamara 100

 440 21 folding the flanges back.

 440 22 Is that a fair assumption, sir?

441:1 - 441:1 McNamara

 441 1 A. I can't speak for Doug Ohlin.

Re: [441:1-441:1]

Def Obj Foundation (602)

SUSTAINED

441:11 - 441:11 McNamara

 441 11 A. I did not reply, I don't believe.

Re: [441:11-441:11]

Def Obj No question

SUSTAINED

441:12 - 441:12 McNamara

 441 12 BY MR. AYLSTOCK:

441:13 - 441:14 McNamara

 441 13 Q. And nor did Mr. Berger or Mr. Myers, did

 441 14 they?

Re: [441:13-441:14]

Def Obj Foundation (602)

SUSTAINED

441:17 - 441:17 McNamara

 441 17 A. I don't know.

Re: [441:17-441:17]

Def Obj Foundation (602)

SUSTAINED

441:18 - 441:18 McNamara

 441 18 BY MR. AYLSTOCK:

441:19 - 441:21 McNamara

 441 19 Q. You have no knowledge that they did, you

 441 20 cannot tell this jury that they ever replied, can you,

 441 21 sir?

Re: [441:19-441:21]

Def Obj Foundation (602)

SUSTAINED

441:24 - 441:24 McNamara

 441 24 A. No, I can't.

Re: [441:24-441:24]

Def Obj Foundation (602)

SUSTAINED

441:25 - 442:1 McNamara

 442 1 BY MR. AYLSTOCK:

442:2 - 442:9 McNamara

 442 2 Q. And knowing that Mr. Berger is the author

 442 3 of this report and an e-mail went to Mr. Myers from

 442 4 Mr. Berger to ask each other, Should we share this

 442 5 with Doug, don't you feel it was incumbent on

 442 6 them to share this with Doug Ohlin and to tell

 442 7 Mr. Ohlin, Dr. Ohlin, that this card that was

 442 8 going to be sent out to the men and women in service

 442 9 is wrong?

Re: [442:2-442:9]

Def Obj Foundation (602)

SUSTAINED

442:12 - 442:13 McNamara

 442 12 Q. Would you agree with me on that, sir?

 442 13 A. I can't.

Re: [442:12-442:13]

Def Obj Foundation (602)

SUSTAINED

442:16 - 442:16 McNamara

 442 16 A. I can't speak for them.

Re: [442:16-442:16]

Def Obj Foundation (602)

SUSTAINED

442:17 - 442:17 McNamara

 442 17 BY MR. AYLSTOCK:

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 165 of 303
McNamara 101

442:18 - 442:21 McNamara

 442 18 Q. You won't agree with me, sir? Even today

 442 19 in 2020, having seen everything that you've seen, you

 442 20 cannot agree with me that this should have been

 442 21 shared?

Re: [442:18-442:21]

Def Obj Foundation (602)

OVERRULED

442:24 - 442:24 McNamara

 442 24 A. I cannot.

Re: [442:24-442:24]

Def Obj Foundation (602)

OVERRULED

443:1 - 443:1 McNamara

 443 1 MR. AYLSTOCK: Thank you. That's all I have.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 166 of 303
Salon 2020-01-29

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 167 of 303
Salon 2020-01-29 2

Designation Objection Rulings

6:21 - 6:24 Salon 2020-01-29

 6 21 Q. Good morning.

 6 22 A. Good morning.

 6 23 Q. What is your name, sir?

 6 24 A. Martin Salon.

8:13 - 8:15 Salon 2020-01-29

 8 13 Q. Okay. Do you work for -- who do you work

 8 14 for now?

 8 15 A. DeltaPlus Corporation.

Re: [8:13-8:15]

Def Obj Relevance (401, 402)

OVERRULED

8:16 - 8:18 Salon 2020-01-29

 8 16 Q. Okay. And when was the last time you

 8 17 worked in the -- for either Aearo or 3M?

 8 18 A. June of 2009.

8:19 - 8:20 Salon 2020-01-29

 8 19 Q. Okay. And why did you leave?

 8 20 A. I was offered a severance package.

Re: [8:19-8:20]

Def Obj Relevance (401, 402)

OVERRULED

8:21 - 9:1 Salon 2020-01-29

 8 21 Q. Okay. Were they downsizing?

 8 22 A. They had a -- just acquired Aearo, so they

 8 23 were downsizing --

 8 24 Q. Okay.

 9 1 A. -- and changing things around.

Re: [8:21-9:1]

Def Obj Relevance (401, 402)

OVERRULED

9:2 - 9:5 Salon 2020-01-29

 9 2 Q. So I guess 3M bought Aearo and -- 3M buys

 9 3 Aearo and they keep some people and other people they

 9 4 say, Hey, we'll give you a severance package?

 9 5 A. Correct.

Re: [9:2-9:5]

Def Obj Relevance (401, 402); 

Foundation (602)

SUSTAINED

9:6 - 9:7 Salon 2020-01-29

 9 6 Q. Okay. I've got a copy of your CV here,

 9 7 and let me give you this.

10:1 - 10:6 Salon 2020-01-29

 10 1 Is this a true and accurate copy of your

 10 2 resume or CV or whatever you want to call it?

 10 3 A. It's the most recent, yes.

 10 4 Q. Okay. All right.

 10 5 And it looks like you are working in

 10 6 Bethel, Connecticut?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 168 of 303
Salon 2020-01-29 3

10:17 - 10:23 Salon 2020-01-29

 10 17 Q. Okay. And what do the folks at DeltaPlus

 10 18 Group do?

 10 19 A. They manufacture PPE products.

 10 20 Q. What's that?

 10 21 A. Personal protective equipment products.

 10 22 Q. Okay. Do they make earplugs?

 10 23 A. We don't make them but we sell them.

Re: [10:17-10:23]

Def Obj Relevance (401, 402)

SUSTAINED

11:22 - 12:1 Salon 2020-01-29

 11 22 Q. It looks like you worked from Aearo

 11 23 Technologies from 1993 to 2009.

 11 24 Is that right?

 12 1 A. That's correct.

12:5 - 12:7 Salon 2020-01-29

 12 5 What years would you have been involved

 12 6 with the Combat Arms Earplug Version 2?

 12 7 A. That would have been 2004 to 2006.

13:8 - 13:15 Salon 2020-01-29

 13 8 Q. Okay. Did you ever work with any of the

 13 9 other Combat Arms Earplugs, Version 3 or 4 or

 13 10 Version 1?

 13 11 A. I'm completely unaware of Version 1.

 13 12 Q. Okay.

 13 13 A. All right. I know that I had samples of,

 13 14 and I don't know if it was 3 or 4, the plug that

 13 15 was -- had a toggle.

14:13 - 14:17 Salon 2020-01-29

 14 13 Q. Okay. With regard to the Combat Arms

 14 14 Earplug Version 2, use your own words and just tell

 14 15 me, what was your role with that product?

 14 16 A. I had a couple of people working for me

 14 17 selling into the military market.

15:16 - 15:18 Salon 2020-01-29

 15 16 Q. Did you negotiate any military contracts

 15 17 for the Combat Arms Earplug Version 2?

 15 18 A. I did not.

Re: [15:16-15:18]

Pltf Obj outside scope of "clarification"

OVERRULED

15:19 - 15:20 Salon 2020-01-29

 15 19 Q. Okay. Who with 3M would have negotiated

 15 20 those?

Re: [15:19-15:20]

Pltf Obj outside scope of "clarification"

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 169 of 303
Salon 2020-01-29 4

15:23 - 15:24 Salon 2020-01-29

 15 23 A. I would have to speculate. I'm not really

 15 24 sure.

Re: [15:23-15:24]

Pltf Obj outside scope of "clarification"

SUSTAINED

17:17 - 18:4 Salon 2020-01-29

 17 17 Q. 2004 to 2006, there is the one from 2004

 17 18 to '5 and then there is the one from 2005 to '6, and

 17 19 if you look there, there is one, two, three, four,

 17 20 five, six, seven bullet points for -- in total.

 17 21 Do you see that?

 17 22 A. Yes, I do.

 17 23 Q. Which of those bullet points had to do

 17 24 with the Combat Arms Version 2?

 18 1 A. The second bullet point under 2005 and

 18 2 2006.

 18 3 Q. Okay. So the one that had to do with the

 18 4 Combat Arms Version 2 is this one right here that

18:5 - 18:9 Salon 2020-01-29

 18 5 says: "Managed team that secured the sale of a new

 18 6 safety product to the Army which is now provided to

 18 7 all deploying soldiers and produced first year revenue

 18 8 in excess of $4 million with margins exceeding

 18 9 75 percent."

Re: [18:5-18:9]

Def Obj 3M MIL No. 7

OVERRULED

18:10 - 18:12 Salon 2020-01-29

 18 10 That's the one that deals with the Combat

 18 11 Arms Version 2, correct?

 18 12 A. That's correct.

18:13 - 18:18 Salon 2020-01-29

 18 13 Q. Okay. Which members of your team secured

 18 14 the sale of that product, the Combat Arms Version 2?

 18 15 A. It would have been one of two people.

 18 16 Q. Okay.

 18 17 A. It would have been Tim McNamara or Frank

 18 18 Gavin.

Re: [18:13-18:18]

Def Obj Foundation (602)

OVERRULED

18:19 - 18:20 Salon 2020-01-29

 18 19 Q. Okay. And you were their supervisor?

 18 20 A. Correct.

18:21 - 19:1 Salon 2020-01-29

 18 21 Q. And would either Tim McNamara or Frank

 18 22 Gavin, would they, I guess, go meet with people in the

Re: [18:21-19:1]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 170 of 303
Salon 2020-01-29 5

 18 23 Army to secure a -- some sort of an agreement to sell

 18 24 the product?

 19 1 A. Yes.

19:10 - 19:13 Salon 2020-01-29

 19 10 Q. Okay. Do you know how many Combat Arms

 19 11 Earplugs Version 2 were sold while you were with the

 19 12 company?

 19 13 A. I do not.

Re: [19:10-19:13]

Pltf Obj outside scope of "clarification"

OVERRULED

21:10 - 21:23 Salon 2020-01-29

 21 10 Q. So if I were to ask you, you'd -- you

 21 11 would say you were in sales, not marketing?

 21 12 A. That's correct.

 21 13 Q. Okay. You were involved in selling these

 21 14 directly to soldiers, correct?

 21 15 A. Not me personally, no.

 21 16 Q. You were, I guess, overseeing that effort,

 21 17 correct?

 21 18 A. Yes, I was.

 21 19 Q. Okay. And who were the people that were

 21 20 working on that for you?

 21 21 A. To sell it?

 21 22 Q. Uh-huh.

 21 23 A. Tim McNamara and Frank Gavin.

22:20 - 23:1 Salon 2020-01-29

 22 20 Q. Okay. Did Mr. McNamara and Mr. Gavin, did

 22 21 they have expense accounts?

 22 22 A. Yes.

 22 23 Q. Were they able to use those expense

 22 24 accounts to, I guess, wine and dine the potential

 23 1 purchasers of these products?

Re: [22:20-23:1]

Def Obj Relevance (401, 402), 

Foundation (602); Cumulative (403); 

Vague (611, 403)

SUSTAINED

23:4 - 23:5 Salon 2020-01-29

 23 4 A. They had expense accounts. They may have

 23 5 taken people out to dinner. I don't recall.

Re: [23:4-23:5]

Def Obj Relevance (401, 402), 

Foundation (602), Vague (611, 403)

OVERRULED

25:18 - 25:21 Salon 2020-01-29

 25 18 Q. One of the things that you came up with to

 25 19 sell this directly or to market this directly to the

 25 20 soldiers was a plan called Operation Cobra, correct?

 25 21 A. I don't recall that.

Re: [25:18-25:21]

Def Obj Foundation (602); NonResponsive (611)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 171 of 303
Salon 2020-01-29 6

25:22 - 26:6 Salon 2020-01-29

 25 22 Q. Okay. Well, I happen to have an e-mail

 25 23 that you sent. Let me mark this as Exhibit 2.

 25 24 (WHEREUPON, a certain document was

 26 1 marked Martin Salon Deposition

 26 2 Exhibit No. 2, for identification,

 26 3 as of 01/29/2020.)

 26 4 BY MR. MONSOUR:

 26 5 Q. Here you go.

 26 6 A. Thank you.

26:7 - 26:17 Salon 2020-01-29

 26 7 Q. This is an e-mail. If you'll look at the

 26 8 front page, it's from you, Marty Salon, and it is to

 26 9 Mike Cimino, Doug Moses, Marc Santoro, cc'ing Jim

 26 10 Greg, Gwen MacDonald, and Brian Myers.

 26 11 Do you see that?

 26 12 A. I do.

 26 13 Q. And the date of it is July 29 of 2005.

 26 14 Do you see that?

 26 15 A. I do.

 26 16 Q. And what is the subject of this e-mail?

 26 17 A. Operation Cobra.

Re: [26:7-26:17]

Def Obj Foundation (602)

OVERRULED

27:11 - 29:14 Salon 2020-01-29

 27 11 Q. Okay. So let's look at Operation Cobra

 27 12 that you were sending around.

 27 13 Do you remember why you were sending

 27 14 around the Operation Cobra plan?

 27 15 A. I don't remember sending this.

 27 16 Q. Okay. Well, let's go through it. Maybe

 27 17 it will kind of clear it up a little bit for you.

 27 18 It looks like one of the things that was

 27 19 being contemplated in Operation Cobra was a direct

 27 20 mail piece.

 27 21 Do you see that --

 27 22 A. I --

 27 23 Q. -- under No. 1?

 27 24 A. I do.

 28 1 Q. And it looks like there is 7,000 --

 28 2 "Direct mail to 7,000 purchasing and procurement

Re: [27:11-29:14]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 172 of 303
Salon 2020-01-29 7

 28 3 people. We estimate we will have an additional 1,000

 28 4 mailers leave behind tubes for the sales force to

 28 5 distribute. Contact customer service for additional

 28 6 samples."

 28 7 Do you see that?

 28 8 A. I do.

 28 9 Q. Now, why was Aearo/3M, why were they doing

 28 10 a direct mail to people with regard to the earplug?

 28 11 A. I don't recall.

 28 12 Q. Okay. Then it looks like there were some

 28 13 trade publications.

 28 14 Do you see that, No. 2?

 28 15 A. I do.

 28 16 Q. And it says: "Trade Publications -

 28 17 National Defense, Armed Forces Journal and ARMY

 28 18 Magazine. Full page ads will run in July, August and

 28 19 September (ad attached)."

 28 20 Do you see that?

 28 21 A. I see that.

 28 22 Q. Okay. Do you remember why you guys were

 28 23 running this -- these advertisements in trade

 28 24 publications?

 29 1 A. I do not.

 29 2 Q. What would generally be the purpose of

 29 3 running an advertisement in a trade publication be?

 29 4 A. To generate leads and interest.

 29 5 Q. Okay. It looks like here there is another

 29 6 section called End User.

 29 7 It says: "We are running (the same ads as

 29 8 trade pubs) each Wednesday and Sunday in Stars and

 29 9 Stripes newspaper (through the end of September).

 29 10 This publication does not run in the US, only

 29 11 overseas, and we have chosen to only run in the Middle

 29 12 East where we believe usage and need is highest."

 29 13 Do you see that?

 29 14 A. Yes, I do.

29:15 - 30:2 Salon 2020-01-29

 29 15 Q. Now, what would be the purpose of running

 29 16 an ad in a newspaper that was regularly reviewed by

Re: [29:15-30:2]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 173 of 303
Salon 2020-01-29 8

 29 17 the soldiers in the Middle East?

 29 18 A. To generate interest in a product.

 29 19 Q. Okay. When you're running an

 29 20 advertisement for a product like the Combat Arms

 29 21 Version 2, what type of information do you want to

 29 22 convey to the end users?

 29 23 A. The features and benefits of the product.

 29 24 Q. Okay. Do you want to include in there

 30 1 instructions on how to use the product?

 30 2 A. Not necessarily.

30:6 - 30:12 Salon 2020-01-29

 30 6 Q. Okay. So you want to do features and

 30 7 benefits of the product.

 30 8 Is it important when you are marketing a

 30 9 product or when you are marketing directly to the end

 30 10 users -- and who were the end users of this product?

 30 11 A. Soldiers.

 30 12 Q. Soldiers, right.

30:13 - 30:14 Salon 2020-01-29

 30 13 Is it important to shoot straight with the

 30 14 soldiers, tell them the truth?

Re: [30:13-30:14]

Def Obj Vague (611, 403); Foundation 

(602)

OVERRULED

30:16 - 30:18 Salon 2020-01-29

 30 16 BY THE WITNESS:

 30 17 A. I think all advertising should shoot

 30 18 straight.

Re: [30:16-30:18]

Def Obj Vague (611, 403); Foundation 

(602)

OVERRULED

30:20 - 31:10 Salon 2020-01-29

 30 20 Q. Okay. If there are positives of a

 30 21 product, should those positives be told to the end

 30 22 users?

 30 23 A. Features, yes.

 30 24 Q. Okay. What if there is some negative

 31 1 aspects of the product, should those negative aspects

 31 2 of the product also be shared with the end users, in

 31 3 this case the soldiers?

 31 4 A. In this situation I would say no.

 31 5 Q. Okay. Why would you not want to share

 31 6 some of the negative aspects?

 31 7 A. Because a negative to you may not be a

 31 8 negative to me, so you create -- creating doubt by

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 174 of 303
Salon 2020-01-29 9

 31 9 throwing negatives in there that -- that may not

 31 10 apply.

31:11 - 31:13 Salon 2020-01-29

 31 11 Q. Well, what if it is a negative that

 31 12 involves the efficacy of the product, should that be

 31 13 shared with the soldiers?

Re: [31:11-31:13]

Def Obj Vague (611, 403)

OVERRULED

31:16 - 31:17 Salon 2020-01-29

 31 16 A. I didn't know there was a problem with the

 31 17 efficacy of the product, so I would have said no.

Re: [31:16-31:17]

Def Obj Vague (611, 403)

OVERRULED

34:10 - 34:11 Salon 2020-01-29

 34 10 Q. Okay. Mr. Salon, I gave you a copy of

 34 11 what we call "the flange report," Exhibit No. 3.

34:12 - 34:14 Salon 2020-01-29

 34 12 Did you have a chance to look at the

 34 13 flange report?

 34 14 A. Yes, I did.

Re: [34:12-34:14]

Def Obj Relevance (401, 402); Vague 

(611, 403); Foundation (602)

OVERRULED

34:15 - 34:17 Salon 2020-01-29

 34 15 Q. Okay. Had you ever seen it before I

 34 16 had --

 34 17 A. I had not.

35:14 - 36:6 Salon 2020-01-29

 35 14 Okay. So, you've never seen the flange

 35 15 report before I showed it to you, true?

 35 16 A. True.

 35 17 Q. Does it concern you that in the

 35 18 introduction to the flange report, it says:

 35 19 "The purpose of this report is to document

 35 20 that the current length of the UltraFit Earplug end of

 35 21 the Combat Arms Plug is too short for proper

 35 22 insertion."

 35 23 Does that concern you?

 35 24 A. No, because I've never heard of it.

 36 1 Q. Okay. If a plug is too short for proper

 36 2 insertion, that can be a problem, true?

 36 3 MS. ESFANDIARIFARD: Object to foundation.

 36 4 BY THE WITNESS:

 36 5 A. I would think not in every case.

 36 6 BY MR. MONSOUR:

Re: [35:14-36:6]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

Vague (611, 403); 701

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 175 of 303
Salon 2020-01-29 10

36:13 - 36:20 Salon 2020-01-29

 36 13 Q. Does it concern you that Mr. Kieper and

 36 14 Mr. Berger were writing memos that mention that the

 36 15 Combat Arms Plug is too short for proper insertion,

 36 16 yet you, as the sales guy, were never let in on this

 36 17 secret?

 36 18 MS. ESFANDIARIFARD: Object to form.

 36 19 BY THE WITNESS:

 36 20 A. No.

Re: [36:13-36:20]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

Vague (611,403); 701

OVERRULED

36:20 - 36:20 Salon 2020-01-29

 36 20 A. No.

Re: [36:20-36:20]

Def Obj Foundation (602)

OVERRULED

37:21 - 37:24 Salon 2020-01-29

 37 21 My question was: If you had been shared

 37 22 this information, would you have told the troops?

 37 23 A. And I didn't deal directly with the

 37 24 troops.

Re: [37:21-37:24]

Pltf Obj 403 (waste of time), nonresponsive, outside scope of 

"clarification"

OVERRULED

38:13 - 38:16 Salon 2020-01-29

 38 13 A. The information I got from E-A-RCAL,

 38 14 Elliott Berger, I had tremendous amount of respect for

 38 15 Elliott, if he felt this was necessary information, I

 38 16 believe he would have shared it with me.

Re: [38:13-38:16]

Pltf Obj incomplete designation 

(question not included), non-responsive 

(answer is not responsive to question 

that was left off counter designations), 

speculation, outside scope of 

"clarification"

SUSTAINED

38:17 - 39:4 Salon 2020-01-29

 38 17 Q. Okay. Do you agree with me that this

 38 18 report, this flange report, is concerning?

 38 19 MS. ESFANDIARIFARD: Object to form.

 38 20 BY THE WITNESS:

 38 21 A. Again, I think if it was concerning

 38 22 enough, Elliott would have passed it along.

 38 23 BY MR. MONSOUR:

 38 24 Q. Okay. Can you think of any reason why

 39 1 Mr. Berger would have not shared this information with

 39 2 you?

 39 3 A. I can't comment on what he was thinking

 39 4 or...

Re: [38:17-39:4]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

Vague (611, 403); 701

OVERRULED

41:1 - 41:16 Salon 2020-01-29

 41 1 Q. If you had known this information, would

 41 2 you have changed up anything you did?

Re: [41:1-41:16]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 176 of 303
Salon 2020-01-29 11

 41 3 MS. ESFANDIARIFARD: Object to form.

 41 4 BY THE WITNESS:

 41 5 A. I would say no.

 41 6 BY MR. MONSOUR:

 41 7 Q. Just -- you'd just keep selling it even

 41 8 though you knew there was an issue with the product?

 41 9 MS. ESFANDIARIFARD: Same objection.

 41 10 BY THE WITNESS:

 41 11 A. Again, some issues come up with a couple

 41 12 of people, there is no earplug that fits everybody, so

 41 13 I didn't have -- I -- literally all of the time I said

 41 14 I had any involvement with the Combat Arms, I never

 41 15 had anyone complain about the product, so I assumed it

 41 16 was a good product.

Vague; Misstates; Argumentative (611, 

403); 701

41:17 - 41:17 Salon 2020-01-29

 41 17 BY MR. MONSOUR:

41:18 - 42:11 Salon 2020-01-29

 41 18 Q. But now --

 41 19 A. I still do.

 41 20 Q. But -- that was your assumption, and I've

 41 21 shown you something that indicates that your

 41 22 assumption might be incorrect, true?

 41 23 MS. ESFANDIARIFARD: Object to form.

 41 24 BY THE WITNESS:

 42 1 A. It might.

 42 2 BY MR. MONSOUR:

 42 3 Q. Okay. So knowing that your assumption

 42 4 might be incorrect and knowing that Mr. Kieper and

 42 5 Mr. Berger signed off on a report that said the Combat

 42 6 Arms Plug is too short for proper insertion, if you

 42 7 had to go back in time, would you change anything you

 42 8 did?

 42 9 MS. ESFANDIARIFARD: Object to form.

 42 10 BY THE WITNESS:

 42 11 A. I don't believe so.

Re: [41:18-42:11]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

Vague; Misstates; Argumentative (611, 

403); 701

OVERRULED

42:13 - 42:19 Salon 2020-01-29

 42 13 Q. Okay. Would you have still implemented

 42 14 Operation Cobra to try and sell this product directly

 42 15 to our brave soldiers?

Re: [42:13-42:19]

Pltf Obj 403 (cumulative of 27:11-15, 

waste of time), non-responsive, outside 

scope of "clarification"

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 177 of 303
Salon 2020-01-29 12

 42 16 A. Again, I don't recall this document.

 42 17 Q. Okay.

 42 18 A. So it's hard for me to comment what I --

 42 19 what I would have or would not have changed.

43:5 - 43:22 Salon 2020-01-29

 43 5 A. No. And I -- I guess I'd like to make a

 43 6 comment.

 43 7 BY MR. MONSOUR:

 43 8 Q. Sure.

 43 9 A. In 2003 I had a cardiac arrest.

 43 10 Q. Okay.

 43 11 A. I was in an induced coma for over a week.

 43 12 Q. Okay.

 43 13 A. They had to defibrillate me.

 43 14 Q. Okay.

 43 15 A. I truly lost some memory from that.

 43 16 Q. Okay.

 43 17 A. So it was about this same time period.

 43 18 My -- my memory is not great from that time period.

 43 19 Q. Okay.

 43 20 A. And I'm -- I'm giving you the best I have

 43 21 that I can remember, and that -- that bothers me that

 43 22 that happened, but it did.

Re: [43:5-43:22]

Pltf Obj 402, 403 (prejudice), 

incomplete designation, outside scope 

of "clarification"

SUSTAINED (no question asked of 

witness)

52:24 - 53:1 Salon 2020-01-29

 52 24 BY MR. MONSOUR:

 53 1 Q. I am -- I am asking you what you think.

53:1 - 53:6 Salon 2020-01-29

 53 1 Q. I am -- I am asking you what you think.

 53 2 A. I think it is the responsibility of

 53 3 military management --

 53 4 Q. Okay.

 53 5 A. -- to make sure all equipment is used

 53 6 correctly.

Re: [53:1-53:6]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

Vague; Misstates; Argumentative (611, 

403); 701

OVERRULED

53:7 - 53:15 Salon 2020-01-29

 53 7 Q. Is it okay for Aearo/3M to conceal this

 53 8 information from the government or to the government?

 53 9 MS. ESFANDIARIFARD: Object to form.

 53 10 BY THE WITNESS:

 53 11 A. I suppose it is, if the product is working

Re: [53:7-53:15]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

Vague; Misstates; Argumentative (611, 

403); 701

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 178 of 303
Salon 2020-01-29 13

 53 12 in -- in most cases.

 53 13 BY MR. MONSOUR:

 53 14 Q. So you --

 53 15 A. Nothing is perfect.

53:16 - 54:10 Salon 2020-01-29

 53 16 Q. So you think it is okay to conceal the

 53 17 information that says the Combat Arms Plug is too

 53 18 short for proper insertion, you think that's okay to

 53 19 conceal that from the government?

 53 20 MS. ESFANDIARIFARD: Object to form.

 53 21 BY THE WITNESS:

 53 22 A. Yes.

 53 23 BY MR. MONSOUR:

 53 24 Q. Okay. You understand that by concealing

 54 1 this information from the government, that has a

 54 2 negative effect on our soldiers, true?

 54 3 MS. ESFANDIARIFARD: Object to foundation.

 54 4 BY THE WITNESS:

 54 5 A. Possibly.

 54 6 BY MR. MONSOUR:

 54 7 Q. Okay. Is that okay, to sell a product and

 54 8 conceal information where it will have a negative

 54 9 effect on our soldiers?

 54 10 A. Yes.

Re: [53:16-54:10]

Def Obj Relevance (401, 402); 

Prejudice (403); Foundation (602); 

Vague; Misstates; Argumentative (611, 

403); 701

OVERRULED

54:11 - 55:4 Salon 2020-01-29

 54 11 Q. Okay. Do you agree with me that our

 54 12 soldiers, they are pretty heroic people, don't you

 54 13 agree with that?

 54 14 A. Absolutely.

 54 15 Q. They have an incredibly dangerous job and

 54 16 I think they would all tell you that they are

 54 17 underpaid.

 54 18 Do you agree with that?

 54 19 A. I'm not sure about the underpaid part, but

 54 20 I believe -- I'm guessing that would be a fair

 54 21 statement.

 54 22 Q. Okay. So for people that are as heroic as

 54 23 our soldiers are and put their lives on the line to

 54 24 benefit the United States, should -- should they be

Re: [54:11-55:4]

Def Obj 3M MIL No. 9; Relevance 

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

(602); Vague; Misstates; Argumentative 

(611, 403); 701

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 179 of 303
Salon 2020-01-29 14

 55 1 given the full truth about the products that they use?

 55 2 MS. ESFANDIARIFARD: Object to form.

 55 3 BY THE WITNESS:

 55 4 A. Not necessarily.

71:17 - 72:2 Salon 2020-01-29

 71 17 Q. Okay. Did you have any role in working

 71 18 with the instructions that should be packaged with

 71 19 each pair of the product?

 71 20 A. I had no role in that.

 71 21 Q. Did you have any role with any PR with

 71 22 regard to this aspect?

 71 23 A. I had no role.

 71 24 Q. Did you have any role with the -- possibly

 72 1 some online training content?

 72 2 A. I had no -- no role in that.

Re: [71:17-72:2]

Pltf Obj 402, 403 (waste of time), 

outside scope of "clarification"

SUSTAINED

75:8 - 76:15 Salon 2020-01-29

 75 8 Q. Could you show me how you put the -- you

 75 9 said that you've used these earplugs?

 75 10 A. Um-hum.

 75 11 Q. If I gave you a pair, could you show me

 75 12 how you put them in?

 75 13 A. I wear hearing aids, so it would be tough

 75 14 to do that.

 75 15 Q. You wear hearing aids?

 75 16 A. Uh-huh. Both sides.

 75 17 Q. Could you just tell me how you would do

 75 18 it?

 75 19 A. How I would do it?

 75 20 MS. ESFANDIARIFARD: Object to form; foundation.

 75 21 BY MR. MONSOUR:

 75 22 Q. Yeah, how would -- how would -- we don't

 75 23 have to -- we don't have to do it. Just tell me how

 75 24 you put them in your ears?

 76 1 A. As I said earlier, I have a big ear canal.

 76 2 I literally can lift my ear and insert the earplug --

 76 3 Q. Okay.

 76 4 A. -- with almost no problem at all.

 76 5 Q. Do you do anything to the plug before you

 76 6 stick it in your ear?

Re: [75:8-76:15]

Def Obj Relevance (401, 402); 

Foundation (602); Prejudice (403); 701

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 180 of 303
Salon 2020-01-29 15

 76 7 MS. ESFANDIARIFARD: Objection; form.

 76 8 BY THE WITNESS:

 76 9 A. I've -- I've tried things like wetting a

 76 10 plug to make it a little easier to slide in.

 76 11 BY MR. MONSOUR:

 76 12 Q. Okay.

 76 13 A. With a disposable plug or are you talking

 76 14 about just this plug? Basically I put -- I put it in,

 76 15 I slide it right in. I wiggle it and insert it.

76:16 - 77:16 Salon 2020-01-29

 76 16 Q. Okay. Do you -- in the flange report that

 76 17 I showed you, it's mentioned that he folded back the

 76 18 flanges and stuck them in.

 76 19 Do you do that when you put yours in?

 76 20 A. I've never heard of that.

 76 21 Q. You've never heard of that, okay.

 76 22 A. I've never heard of that.

 76 23 Q. I want to show you -- let me show you --

 76 24 did you ever include any -- in the marketing pieces

 77 1 that you sent soldiers, did you ever include anything

 77 2 in that talking about rolling back the flanges?

 77 3 MS. ESFANDIARIFARD: Object to foundation.

 77 4 BY THE WITNESS:

 77 5 A. I never did any marketing pieces.

 77 6 BY MR. MONSOUR:

 77 7 Q. Okay. On the sales pieces, did you ever

 77 8 include anything in there about rolling back the

 77 9 flanges?

 77 10 A. Not to my knowledge.

 77 11 Q. If it was important, would you have done

 77 12 that?

 77 13 MS. ESFANDIARIFARD: Object to form.

 77 14 BY THE WITNESS:

 77 15 A. If it was an everyone-should-do-it kind of

 77 16 thing, I would think that would be important.

Re: [76:16-77:16]

Def Obj Foundation (602); Prejudice 

(403); Relevance (401, 402); Vague 

(611, 403)

OVERRULED

77:24 - 78:1 Salon 2020-01-29

 77 24 MR. MONSOUR: Let me hand you what I'll mark as

 78 1 Exhibit 5.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 181 of 303
Salon 2020-01-29 16

78:11 - 79:14 Salon 2020-01-29

 78 11 Q. And this is an e-mail from July of 2005.

 78 12 It's talking about -- if -- if you look at the e-mail,

 78 13 it is basically talking about Operation Cobra, if you

 78 14 look at it.

 78 15 A. Okay.

 78 16 Q. Do you see that?

 78 17 A. I do.

 78 18 Q. It is talking about direct mail, trade

 78 19 publications, all of that kind of stuff?

 78 20 A. Right.

 78 21 Q. And it mentions the trade publications

 78 22 where the ad is going to be, and if you look, if you

 78 23 flip over two pages, it says that the ad is attached,

 78 24 and if you flip over two pages, there is a copy of the

 79 1 ad there.

 79 2 Do you see it?

 79 3 A. Yep.

 79 4 Q. Do you remember that ad?

 79 5 A. I do not.

 79 6 Q. Okay. This is, though, based upon the

 79 7 e-mail, this is the ad that was going to be run in

 79 8 Stars and Stripes and those other trade publications

 79 9 that were aimed at the soldiers, correct?

 79 10 A. Yes, I believe so.

 79 11 Q. Okay. It notes at the top, it says,

 79 12 Combat Arms Earplug and it says, "Hear Clearly,"

 79 13 correct?

 79 14 A. Correct.

Re: [78:11-79:14]

Def Obj Relevance (401, 402); 

Foundation (602)

OVERRULED

80:6 - 80:17 Salon 2020-01-29

 80 6 Q. And there is a picture of a soldier

 80 7 wearing a helmet and he has the earplugs in and the

 80 8 yellow side is in, correct?

 80 9 A. Correct.

 80 10 Q. And -- and when I say the yellow side is

 80 11 in, that means the green side is kind of facing out?

 80 12 A. Okay.

 80 13 Q. Correct?

 80 14 A. Correct.

Re: [80:6-80:17]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 182 of 303
Salon 2020-01-29 17

 80 15 Q. The flanges on the green side are not

 80 16 folded back, correct?

 80 17 A. Correct.

81:12 - 81:16 Salon 2020-01-29

 81 12 Q. Did you have any role in creating the

 81 13 website?

 81 14 A. No, I did not.

 81 15 Q. Okay. Did you ever look at the website?

 81 16 A. Not that I recall.

Re: [81:12-81:16]

Pltf Obj 402, 403 (waste of time), 

outside scope of "clarification"

OVERRULED

94:8 - 94:11 Salon 2020-01-29

 94 8 Q. If -- if you were the decision maker,

 94 9 would you say, Hey, let's -- let's work on this,

 94 10 let's -- let's give better instructions?

 94 11 A. I wasn't the decision maker.

Re: [94:8-94:11]

Pltf Obj 402, 403 (waste of time), nonresponsive, outside scope of 

"clarification"

OVERRULED

120:14 - 120:19 Salon 2020-01-29

 120 14 Q. Salon. Okay. Mr. Salon, my name is Tom

 120 15 Pirtle. I am a lawyer from Houston, Texas and I'm

 120 16 here on be of half MDL plaintiffs to ask you some

 120 17 follow-up questions of what Mr. Monsour was asking.

 120 18 A. Okay.

 120 19 Q. All right?

120:20 - 121:1 Salon 2020-01-29

 120 20 The only thing that I do ask of you is if

 120 21 you don't understand a question -- and that's wholly

 120 22 possible -- ask me to repeat it and I'll repeat it as

 120 23 many as times as necessary until we have a meeting of

 120 24 the minds.

 121 1 A. Okay.

Re: [120:20-121:1]

Def Obj Relevance (401, 402)

SUSTAINED

131:15 - 132:5 Salon 2020-01-29

 131 15 Did you become aware during your time at

 131 16 Aearo that some of the Gulf War veterans or folks that

 131 17 were deployed were -- were coming back with hearing

 131 18 loss?

 131 19 A. I was not aware of that.

 131 20 MS. ESFANDIARIFARD: Objection to form. You've

 131 21 got to give me a second, but...

 131 22 BY MR. PIRTLE:

 131 23 Q. So you were not aware that some of the

 131 24 veterans that were coming back from, say, Iraq or

Re: [131:15-132:5]

Def Obj Foundation (602); 701; 3M 

MIL No. 9; Relevance (401, 402)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 183 of 303
Salon 2020-01-29 18

 132 1 Afghanistan were coming back with what I'm going to

 132 2 call abnormally high rates of hearing loss?

 132 3 MS. ESFANDIARIFARD: Same objection to form.

 132 4 BY THE WITNESS:

 132 5 A. I was not aware of that.

132:5 - 132:10 Salon 2020-01-29

 132 5 A. I was not aware of that.

 132 6 BY MR. PIRTLE:

 132 7 Q. All right. Let me show you something that

 132 8 might refresh your recollection on this subject.

 132 9 MR. PIRTLE: I'm going to mark this as Salon 12.

 132 10 My control number is TP9. You can put it up.

Re: [132:5-132:10]

Def Obj Foundation (602); 701; 3M 

MIL No. 9; Relevance (401, 402)

OVERRULED

133:3 - 133:20 Salon 2020-01-29

 133 3 Q. And just so we can orient ourselves to

 133 4 this document, this is a document that is dated

 133 5 March 6th of 2006, correct?

 133 6 A. Yes.

 133 7 Q. It is a time when you were with the

 133 8 company, correct?

 133 9 A. Correct.

 133 10 Q. And it is from a Brian Myers who you are

 133 11 familiar with?

 133 12 A. Correct.

 133 13 Q. And it is to you as well as a number of

 133 14 other folks, including some people that worked for you

 133 15 at the time, Frank Gavin and Tim -- Timothy McNamara,

 133 16 who we've looked at e-mails from before, correct?

 133 17 A. Correct.

 133 18 Q. Marc Santoro, Gary Warren. Was Gary

 133 19 Warren your boss?

 133 20 A. Yes, he was.

134:9 - 134:18 Salon 2020-01-29

 134 9 Q. And the subject of this is: "Forward:

 134 10 Rates of hearing loss climbing for troops - Rick

 134 11 Whittle," and I hope I pronounced that right, "Dallas

 134 12 Morning News."

 134 13 Did I read that reasonably correct?

 134 14 A. Yes.

 134 15 Q. And is it fair to say that you would have

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 184 of 303
Salon 2020-01-29 19

 134 16 received this memo or this e-mail in the ordinary

 134 17 course of your business at Aearo at the time?

 134 18 A. Yes.

136:1 - 136:1 Salon 2020-01-29

 136 1 halfway down the page.

136:2 - 136:10 Salon 2020-01-29

 136 2 A. Okay.

 136 3 Q. "A review of recent studies and interviews

 136 4 with experts by the Dallas Morning News shows that:

 136 5 Perhaps a fourth, and probably more, of troops who

 136 6 have served in Iraq since March of 2003 have returned

 136 7 with hearing loss from gunfire, bomb blasts and other

 136 8 noise."

 136 9 Did I read that reasonably correct?

 136 10 A. Yes.

Re: [136:2-136:10]

Def Obj Relevance (401, 402); 

Foundation (403); Foundation (602); 

701; 3M Mil No. 9

OVERRULED

137:18 - 138:4 Salon 2020-01-29

 137 18 Q. Now, at this point in time Aearo had

 137 19 hundreds of thousands of Version 2 earplugs in

 137 20 military hands we've seen through the pre -- previous

 137 21 documents.

 137 22 Did you as a member of management, as vice

 137 23 president, take note in 2006 and go, Hey, one-fourth

 137 24 of these people are showing hearing loss, maybe there

 138 1 is something wrong?

 138 2 MS. ESFANDIARIFARD: Objection to form.

 138 3 BY THE WITNESS:

 138 4 A. I don't recall that popping into my head.

Re: [137:18-138:4]

Def Obj Relevance (401, 402); 

Cummulative (403); Misstates (611, 

403); Foundation (602); 701; 3M Mil 

No. 9

OVERRULED

138:5 - 138:5 Salon 2020-01-29

 138 5 BY MR. PIRTLE:

138:6 - 138:10 Salon 2020-01-29

 138 6 Q. It is a reasonable question to ask,

 138 7 though, isn't it?

 138 8 MS. ESFANDIARIFARD: Objection to form.

 138 9 BY THE WITNESS:

 138 10 A. It is a reasonable question.

Re: [138:6-138:10]

Def Obj Vague (611, 403); Foundation 

(602); 3M Mil No. 9; Relevance (401, 

402)

OVERRULED

138:11 - 138:11 Salon 2020-01-29

 138 11 BY MR. PIRTLE:

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 185 of 303
Salon 2020-01-29 20

138:12 - 138:17 Salon 2020-01-29

 138 12 Q. And it is a reasonable question that you

 138 13 don't recall getting -- ever getting an answer to?

 138 14 MS. ESFANDIARIFARD: Same objection.

 138 15 BY THE WITNESS:

 138 16 A. I'm not sure I raised an objection. I

 138 17 don't recall asking -- raising an objection.

Re: [138:12-138:17]

Def Obj Vague (611, 403); Relevance 

(401, 402)

SUSTAINED

138:19 - 139:6 Salon 2020-01-29

 138 19 Q. Do you remember anybody raising an

 138 20 objection, saying, My God, a quarter of these folks

 138 21 are coming home with a hearing loss and we are the

 138 22 guys who are supposed to be protecting their hearing?

 138 23 MS. ESFANDIARIFARD: Objection to form.

 138 24 BY THE WITNESS:

 139 1 A. I don't recall any conversation.

 139 2 BY MR. PIRTLE:

 139 3 Q. Do you remember any reaction or action

 139 4 that was taken as part of this report from the Dallas

 139 5 Morning News as was transcribed by Brian Myers?

 139 6 A. I do not.

Re: [138:19-139:6]

Def Obj Vague (611, 403); Relevance 

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

(602); 3M Mil No. 9

SUSTAINED AS TO THE PHRASE, 

“MY GOD.”

OVERRULED IN ALL OTHER 

RESPECTS.

141:9 - 141:9 Salon 2020-01-29

 141 9 MR. PIRTLE: Pass the witness.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 186 of 303
Zielinski 2020-06-22

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 187 of 303
Zielinski 2020-06-22 2

Designation Objection Rulings

11:23 - 12:5 Zielinski 2020-06-22

 11 23 The court reporter is Carrie

 11 24 Campbell and will now swear in the

 11 25 witness.

 12 1 ROBERT ZIELINSKI,

 12 2 of lawful age, having been first duly sworn

 12 3 to tell the truth, the whole truth and

 12 4 nothing but the truth, deposes and says on

 12 5 behalf of the Plaintiffs, as follows:

12:9 - 12:15 Zielinski 2020-06-22

 12 9 Q. Good morning, Mr. Zielinski.

 12 10 My name is Neil Overholtz, and

 12 11 I represent the plaintiffs in this claim

 12 12 against 3M and Aearo Corporation.

 12 13 Can you state your full name

 12 14 for the record?

 12 15 A. Yes. It's Robert Zielinski.

12:23 - 13:4 Zielinski 2020-06-22

 12 23 Q. And are you currently employed?

 12 24 A. Yes, I am.

 12 25 Q. And who do you work for?

 13 1 A. Aearo Technologies, LLC.

 13 2 Q. Okay. And Aearo is a

 13 3 subsidiary of 3M; is that right?

 13 4 A. Yes, that's correct.

14:20 - 14:23 Zielinski 2020-06-22

 14 20 So how much time did you spend

 14 21 preparing for today's deposition?

 14 22 A. I would estimate about 25 to

 14 23 30 hours total.

Re: [14:20-14:23]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

15:10 - 15:16 Zielinski 2020-06-22

 15 10 Q. Okay. And besides the time

 15 11 that you -- well, let me just ask you this:

 15 12 Those 25 to 30 hours, was some of this time

 15 13 meeting with attorneys, or part of the time

 15 14 was with attorneys and other time was you

 15 15 preparing yourself?

 15 16 A. That time was with attorneys.

Re: [15:10-15:16]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 188 of 303
Zielinski 2020-06-22 3

17:17 - 17:25 Zielinski 2020-06-22

 17 17 Can you tell me what TJR was?

 17 18 A. That was the manufacturing

 17 19 facility in Mexico that produced product for

 17 20 Aearo Technologies.

 17 21 Q. Okay. So eventually that

 17 22 became Aearo Technologies Mexico; is that

 17 23 right?

 17 24 A. Eventually, yes. That is the

 17 25 current title of the operation.

Re: [17:17-17:25]

Def Obj Relevance (401, 402); 

Prejudice (403); 3M MIL 26

OVERRULED

19:24 - 20:1 Zielinski 2020-06-22

 19 24 You've been working for Aearo

 19 25 since the late 1990s; is that right?

 20 1 A. Yes, that's correct.

23:18 - 23:25 Zielinski 2020-06-22

 23 18 Q. Okay. So this is what --

 23 19 document RZ-LI, and we're going to introduce

 23 20 this as the first exhibit, Exhibit 1, to the

 23 21 deposition, Zielinski 1.

 23 22 MR. OVERHOLTZ: So, Corey, if

 23 23 you could make that Exhibit 1.

 23 24 (Zielinski Exhibit 1 marked for

 23 25 identification.)

24:19 - 24:21 Zielinski 2020-06-22

 24 19 Q. Okay. So -- and this is your

 24 20 LinkedIn page, correct?

 24 21 A. Yes, it is.

26:16 - 26:19 Zielinski 2020-06-22

 26 16 Q. Okay. And when did you move

 26 17 into this global outsource manufacturing

 26 18 manager?

 26 19 A. It was approximately in 2001.

28:14 - 28:21 Zielinski 2020-06-22

 28 14 Q. And then the next is NAFTA

 28 15 compliance.

 28 16 Do you see that?

 28 17 A. Yes.

 28 18 Q. All right. NAFTA compliance.

 28 19 NAFTA is the North American Free Trade

Re: [28:14-28:21]

Def Obj Relevance (401, 402); 

Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 189 of 303
Zielinski 2020-06-22 4

 28 20 Agreement; is that right?

 28 21 A. Yes, that's correct.

29:9 - 29:18 Zielinski 2020-06-22

 29 9 One of the facilities that you

 29 10 had responsibility over as far as this

 29 11 outsource manufacturing management was a

 29 12 facility in Mexico, right?

 29 13 A. Yes.

 29 14 Q. And that would have been -- one

 29 15 of those would have been TJR that we talked

 29 16 about before was where at least some of the

 29 17 earplugs were going to be manufactured in

 29 18 Mexico for Aearo; is that right?

29:21 - 29:23 Zielinski 2020-06-22

 29 21 THE WITNESS: Yes, that's

 29 22 correct, that's where they were

 29 23 produced.

29:24 - 30:13 Zielinski 2020-06-22

 29 24 QUESTIONS BY MR. OVERHOLTZ:

 29 25 Q. All right. And so for NAFTA

 30 1 compliance, when you list that as one of your

 30 2 responsibilities, the reason why you had to

 30 3 be compliant with NAFTA, the North American

 30 4 Free Trade Agreement, is because this

 30 5 outsource manufacturing was happening in

 30 6 Mexico; is that right?

 30 7 MS. DE PAULO: Objection.

 30 8 Form.

 30 9 THE WITNESS: There were

 30 10 regulations required as a maquiladora

 30 11 operation that you had to have NAFTA

 30 12 compliance for, so that was the main

 30 13 reason for that.

Re: [29:24-30:13]

Def Obj Relevance (401, 402); Vague 

(611, 403); Prejudice (403)

SUSTAINED

30:14 - 30:19 Zielinski 2020-06-22

 30 14 QUESTIONS BY MR. OVERHOLTZ:

 30 15 Q. Okay. And so your

 30 16 responsibility was to make sure that you

 30 17 complied with those NAFTA-related

Re: [30:14-30:19]

Def Obj Relevance (401, 402)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 190 of 303
Zielinski 2020-06-22 5

 30 18 regulations; is that fair?

 30 19 A. Yes.

31:24 - 33:3 Zielinski 2020-06-22

 31 24 QUESTIONS BY MR. OVERHOLTZ:

 31 25 Q. If we could flip to the next

 32 1 slide, I just want to kind of give us a

 32 2 little bit of a roadmap of where we're going

 32 3 to go, Mr. Zielinski, in this deposition so

 32 4 we have an understanding of some of the

 32 5 topics we're going to talk about today.

 32 6 Okay?

 32 7 So obviously we're going to

 32 8 talk a little bit more about your background

 32 9 job at Aearo and 3M when 3M acquired Aearo.

 32 10 I want to talk to you about

 32 11 your role with the Combat Arms version 2, the

 32 12 dual-ended, and you can see a picture on the

 32 13 screen, right?

 32 14 A. Yes.

 32 15 Q. Okay. And I want to talk to

 32 16 you a little bit about the manufacturing of

 32 17 the component parts of the Combat Arms

 32 18 version 2, okay?

 32 19 A. Okay.

 32 20 Q. And then, of course, as we've

 32 21 just started talking about, I want to talk a

 32 22 little bit about the outsourcing of the

 32 23 assembly of the Combat Arms version 2 plugs.

 32 24 And then finally we want to

 32 25 talk about the quality assurance and testing

 33 1 of the Combat Arms version 2.

 33 2 Okay?

 33 3 A. Okay.

Re: [31:24-33:3]

Def Obj Relevance (401, 402); 

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

3M MIL No. 26

SUSTAINED

35:8 - 36:13 Zielinski 2020-06-22

 35 8 Q. Okay. Was it -- and it's your

 35 9 knowledge and understanding that the role of

 35 10 TJR in Mexico was the assembly of the Combat

 35 11 Arms dual-ended earplug; is that right?

 35 12 A. Yes, their responsibility was

Re: [35:8-36:13]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 191 of 303
Zielinski 2020-06-22 6

 35 13 to assemble those plugs, that's correct.

 35 14 Q. Okay. And they didn't

 35 15 manufacture the component parts; is that a

 35 16 fair statement?

 35 17 A. That's correct, they did not.

 35 18 Q. Okay. And those parts would be

 35 19 shipped directly to TJR where they would be

 35 20 assembled manually; is that right?

 35 21 A. Direct -- can you please

 35 22 clarify direct from where?

 35 23 Q. Yes, I'm going to ask you a

 35 24 little bit about where.

 35 25 The component parts were

 36 1 shipped from whoever made them, manufactured

 36 2 them, to TJR in Mexico for assembly; is that

 36 3 right?

 36 4 A. They were shipped there by --

 36 5 came into Indianapolis first, and were

 36 6 consolidated and shipped down.

 36 7 Q. Okay. So the manufacturer of

 36 8 the component part makes the part, ships them

 36 9 to Indianapolis. In Indianapolis you put

 36 10 them all together and ship them down to

 36 11 Mexico for assembly; is that right?

 36 12 A. Yes, that is what happened at

 36 13 that point in time.

38:12 - 38:17 Zielinski 2020-06-22

 38 12 Q. And when the assembled Combat

 38 13 Arms were shipped out, did the same procedure

 38 14 apply? They would be trucked back to the

 38 15 border and then transferred to a different

 38 16 carrier?

 38 17 A. That is my understanding, yes.

Re: [38:12-38:17]

Def Obj 3M MIL No. 26

OVERRULED

38:21 - 38:24 Zielinski 2020-06-22

 38 21 Q. Okay. All right. And then you

 38 22 were involved with quality assurance and

 38 23 testing of the Combat Arms version 2; is that

 38 24 right?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 192 of 303
Zielinski 2020-06-22 7

38:21 - 38:24 Zielinski 2020-06-22

 38 21 Q. Okay. All right. And then you

 38 22 were involved with quality assurance and

 38 23 testing of the Combat Arms version 2; is that

 38 24 right?

Re: [38:21-38:24]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64; 

de-designated by Plaintiff

SUSTAINED

39:2 - 39:2 Zielinski 2020-06-22

 39 2 THE WITNESS: No, I was not.

39:2 - 39:2 Zielinski 2020-06-22

 39 2 THE WITNESS: No, I was not.

Re: [39:2-39:2]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

SUSTAINED

39:3 - 39:18 Zielinski 2020-06-22

 39 3 QUESTIONS BY MR. OVERHOLTZ:

 39 4 Q. Okay. You didn't have any

 39 5 responsibility related to the quality

 39 6 assurance procedures and testing of the

 39 7 Combat Arms version 2 that were happening or

 39 8 supposed to happen down in Mexico?

 39 9 MS. DE PAULO: Objection.

 39 10 Form.

 39 11 THE WITNESS: No, I was not

 39 12 responsible for quality assurance.

 39 13 QUESTIONS BY MR. OVERHOLTZ:

 39 14 Q. Okay. Who was responsible?

 39 15 A. The quality department within

 39 16 TJR had initial responsibility, and Aearo

 39 17 Technologies' quality department would be

 39 18 responsible for quality overall.

Re: [39:3-39:18]

Def Obj 3M MIL NO. 26

OVERRULED

40:9 - 40:19 Zielinski 2020-06-22

 40 9 Q. Okay. And you told me that

 40 10 initial quality assurance responsibility fell

 40 11 to TJR in Mexico's quality department; is

 40 12 that right?

 40 13 A. Yes, that's correct.

 40 14 Q. But Aearo Technologies' in

 40 15 Indianapolis quality department would oversee

 40 16 that; is that fair?

 40 17 A. The quality assurance

 40 18 department in Indianapolis was ultimately

 40 19 responsible, yes.

Re: [40:9-40:19]

Def Obj 3M MIL NO. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 193 of 303
Zielinski 2020-06-22 8

40:20 - 41:5 Zielinski 2020-06-22

 40 20 Q. All right. And can you tell me

 40 21 when -- and if this changed over time, you

 40 22 can tell me that. But can you tell me who

 40 23 the people were at Aearo in Indianapolis who

 40 24 would have been responsible for quality

 40 25 assurance?

 41 1 MS. DE PAULO: Objection.

 41 2 Form.

 41 3 THE WITNESS: Steve Todor was

 41 4 the quality manager at that point in

 41 5 time.

Re: [40:20-41:5]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

54:21 - 55:4 Zielinski 2020-06-22

 54 21 (Zielinski Exhibit 2 marked for

 54 22 identification.)

 54 23 QUESTIONS BY MR. OVERHOLTZ:

 54 24 Q. Long before that. Okay.

 54 25 All right. Let's talk a little

 55 1 bit now about kind of where you fit within

 55 2 the structure there at Aearo in Indianapolis.

 55 3 If we can mark as the next Exhibit RZ-019,

 55 4 Exhibit 2.

55:19 - 55:24 Zielinski 2020-06-22

 55 19 Mr. Zielinski, this is

 55 20 page 2 -- or page 1 of the actual document,

 55 21 page 2 of the PDF, but -- which is an

 55 22 operations and R&D organizational chart.

 55 23 Do you see that?

 55 24 A. Yes, I do.

57:2 - 57:6 Zielinski 2020-06-22

 57 2 Q. Okay. And what about Robert

 57 3 Klun? I see him listed as vice president of

 57 4 research and development.

 57 5 Do you see that?

 57 6 A. Yes, I do.

57:22 - 58:6 Zielinski 2020-06-22

 57 22 You didn't have direct

 57 23 reporting to Mr. Klun with respect to your

 57 24 role in global outsource manufacturing, but

Re: [57:22-58:6]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 194 of 303
Zielinski 2020-06-22 9

 57 25 you did have interactions with Mr. Klun

 58 1 related to the Combat Arms version 2, right?

 58 2 MS. DE PAULO: Objection.

 58 3 Form.

 58 4 THE WITNESS: I had

 58 5 interactions with Mr. Klun on several

 58 6 areas, yes.

58:8 - 58:10 Zielinski 2020-06-22

 58 8 Q. Okay. And what was the basis

 58 9 of those interactions between his department

 58 10 and the department that you worked under?

Re: [58:8-58:10]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

58:13 - 58:17 Zielinski 2020-06-22

 58 13 THE WITNESS: Mr. Klun was

 58 14 responsible for research and

 58 15 development of the technical group.

 58 16 There was little interaction with

 58 17 those two areas.

Re: [58:13-58:17]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

61:21 - 62:3 Zielinski 2020-06-22

 61 21 Q. Okay. And from a -- and the

 61 22 plugs that were going to be assembled by TJR,

 61 23 you understood that those were going to be

 61 24 sold to the United States military, right?

 61 25 MS. DE PAULO: Objection.

 62 1 Form.

 62 2 THE WITNESS: I was aware that

 62 3 they were for military, yes.

Re: [61:21-62:3]

Def Obj Relevance (401, 402); 

Foundation (602); Prejudice (403)

OVERRULED

62:15 - 62:23 Zielinski 2020-06-22

 62 15 For global outsource

 62 16 manufacturing at Aearo for the Combat Arms

 62 17 version 2, was it important that those

 62 18 earplugs be assembled correctly?

 62 19 MS. DE PAULO: Objection.

 62 20 THE WITNESS: Aearo

 62 21 Technologies was definitely --

 62 22 definitely wanted to be sure that the

 62 23 plugs were correct.

Re: [62:15-62:23]

Def Obj 3M MIL No. 26

OVERRULED

63:4 - 63:7 Zielinski 2020-06-22

 63 4 Q. Okay. And were there

 63 5 operations, procedures, that were put in

Re: [63:4-63:7]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 195 of 303
Zielinski 2020-06-22 10

 63 6 place to make sure that they were assembled

 63 7 correctly by TJR?

63:10 - 63:13 Zielinski 2020-06-22

 63 10 THE WITNESS: Standard

 63 11 operating procedures were provided by

 63 12 the quality department that gave

 63 13 direction to TJR regarding assembly.

Re: [63:10-63:13]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

63:14 - 63:19 Zielinski 2020-06-22

 63 14 QUESTIONS BY MR. OVERHOLTZ:

 63 15 Q. As part of your job as global

 63 16 outsource manufacturing, did you have any

 63 17 responsibilities related to the design of the

 63 18 Combat Arms version 2 earplug?

 63 19 A. No, not at all.

Re: [63:14-63:19]

Pltf Obj outside scope of "clarification"

OVERRULED

64:5 - 64:10 Zielinski 2020-06-22

 64 5 Your job as -- in global

 64 6 outsource manufacturing for the Combat Arms

 64 7 version 2 for TJR Mexico, was your job to

 64 8 make sure that TJR Mexico had the operations

 64 9 in place that could deliver the earplugs that

 64 10 Aearo needed to sell and deliver?

Re: [64:5-64:10]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OVERRULED

64:13 - 64:17 Zielinski 2020-06-22

 64 13 THE WITNESS: My

 64 14 responsibilities were to make sure

 64 15 that TJR was manufacturing the product

 64 16 to meet the quantity and delivery date

 64 17 requirements of our customer.

Re: [64:13-64:17]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OVERRULED

66:15 - 67:8 Zielinski 2020-06-22

 66 15 Did you have an understanding

 66 16 in your role that the quality of the plugs

 66 17 produced at TJR Mexico was important?

 66 18 MS. DE PAULO: Objection.

 66 19 Form.

 66 20 THE WITNESS: The quality of

 66 21 all the product produced in our

 66 22 manufacturing facilities is important.

 66 23 QUESTIONS BY MR. OVERHOLTZ:

 66 24 Q. And in light of the fact that

 66 25 these Combat Arms version 2 earplugs were

Re: [66:15-67:8]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 196 of 303
Zielinski 2020-06-22 11

 67 1 going to be sold to the United States

 67 2 military, would you agree that the quality

 67 3 was paramount to soldier safety?

 67 4 MS. DE PAULO: Objection.

 67 5 Form.

 67 6 THE WITNESS: I don't have

 67 7 information regarding the plugs and

 67 8 soldier safety.

67:17 - 67:24 Zielinski 2020-06-22

 67 17 Q. Okay. You understood the

 67 18 Combat Arms version 2 plugs were a safety

 67 19 product?

 67 20 MS. DE PAULO: Objection.

 67 21 Form.

 67 22 THE WITNESS: I understood that

 67 23 the earplugs were a hearing protection

 67 24 product.

Re: [67:17-67:24]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

68:6 - 68:7 Zielinski 2020-06-22

 68 6 Q. Okay. And so -- and this is

 68 7 one of those plugs there, right?

68:10 - 68:13 Zielinski 2020-06-22

 68 10 QUESTIONS BY MR. OVERHOLTZ:

 68 11 Q. Dual-ended, yellow and green?

 68 12 A. That appears to be the Combat

 68 13 Arms version 2.

68:14 - 69:7 Zielinski 2020-06-22

 68 14 Q. Okay. And when we talk about

 68 15 hearing protection, and you had an

 68 16 understanding that Aearo was selling these

 68 17 plugs to the United States military, this was

 68 18 hearing protection for our soldiers, right?

 68 19 MS. DE PAULO: Objection.

 68 20 Form.

 68 21 THE WITNESS: The product was a

 68 22 hearing protection product used by the

 68 23 military.

 68 24 QUESTIONS BY MR. OVERHOLTZ:

 68 25 Q. Now, because of that, do you

 69 1 agree that if there was a problem with the

Re: [68:14-69:7]

Def Obj 3M MIL No. 26; Prejudice 

(403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 197 of 303
Zielinski 2020-06-22 12

 69 2 assembly of the CAEv2, that Aearo had a duty

 69 3 to tell the US military?

 69 4 MS. DE PAULO: Objection.

 69 5 Form.

 69 6 THE WITNESS: I would have no

 69 7 idea. No, I don't know.

71:19 - 72:24 Zielinski 2020-06-22

 71 19 If there was a problem with the

 71 20 quality of the Combat Arms version 2 earplugs

 71 21 that were being assembled to the US

 71 22 military -- they were being assembled to be

 71 23 sold to the US military that could affect

 71 24 soldier safety and their hearing, would you

 71 25 expect that Aearo or 3M would communicate

 72 1 that to the United States military?

 72 2 MS. DE PAULO: Same objection.

 72 3 THE WITNESS: That was not my

 72 4 area of responsibility, so I relied on

 72 5 the marketing team to determine what

 72 6 communication takes place between them

 72 7 and their customers.

 72 8 QUESTIONS BY MR. OVERHOLTZ:

 72 9 Q. Okay. So marketing at Aearo

 72 10 was responsible for communications with their

 72 11 customers, based on your understanding of

 72 12 your responsibilities at Aearo; is that

 72 13 right?

 72 14 MS. DE PAULO: Objection.

 72 15 Form.

 72 16 THE WITNESS: Sorry, could you

 72 17 repeat that again?

 72 18 QUESTIONS BY MR. OVERHOLTZ:

 72 19 Q. I just was trying to verify.

 72 20 Based on your understanding in

 72 21 your role at Aearo, it was marketing's job to

 72 22 communicate with their customers?

 72 23 A. Yes, marketing did the

 72 24 communication.

Re: [71:19-72:24]

Def Obj 3M MIL No. 26; Prejudice 

(403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 198 of 303
Zielinski 2020-06-22 13

74:18 - 74:22 Zielinski 2020-06-22

 74 18 Q. Okay. You know who Marty Salon

 74 19 is?

 74 20 A. Yes, I do.

 74 21 Q. He was in marketing, right?

 74 22 A. Yes, he was in marketing.

74:23 - 76:3 Zielinski 2020-06-22

 74 23 Q. All right. Let's see what

 74 24 Mr. Salon had to say about letting the

 74 25 military know about problems with the Combat

 75 1 Arms that might affect soldier safety.

 75 2 MR. OVERHOLTZ: Corey, can we

 75 3 play the clip SM1?

 75 4 (Video played.)

 75 5 MR. OVERHOLTZ: Thanks, Corey.

 75 6 QUESTIONS BY MR. OVERHOLTZ:

 75 7 Q. So, Mr. Zielinski, have you

 75 8 ever seen Mr. Salon's testimony in this case

 75 9 before?

 75 10 A. No, I have not.

 75 11 Q. You haven't had a chance to

 75 12 read the transcript of his deposition?

 75 13 A. No, I did not.

 75 14 Q. So if it wasn't your job to

 75 15 reveal information regarding issues with the

 75 16 Combat Arms that may have a negative safety

 75 17 effect on the soldiers, and the guy in

 75 18 marketing didn't think it was his job or

 75 19 didn't have a problem with not telling

 75 20 soldiers, who was going to take

 75 21 responsibility at Aearo and 3M and tell the

 75 22 soldiers and the military about problems with

 75 23 the Combat Arms version 2 earplugs?

 75 24 MS. DE PAULO: Objection.

 75 25 Form.

 76 1 THE WITNESS: I don't know. It

 76 2 was not my responsibility, so I don't

 76 3 know.

Re: [74:23-76:3]

Def Obj Foundation (602); 3M MIL 

No. 26; Compound, Argumentative 

(611, 403); Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 199 of 303
Zielinski 2020-06-22 14

76:23 - 77:1 Zielinski 2020-06-22

 76 23 (Zielinski Exhibit 3 marked for

 76 24 identification.)

 76 25 

 77 1 QUESTIONS BY MR. OVERHOLTZ:

77:1 - 77:12 Zielinski 2020-06-22

 77 1 QUESTIONS BY MR. OVERHOLTZ:

 77 2 Q. Okay. So TJR Mexico, we talked

 77 3 about that before. That was, as described

 77 4 here, an exclusive Aearo contract

 77 5 manufacturing that was responsible for

 77 6 hearing product manual assembly.

 77 7 That was your understanding,

 77 8 correct?

 77 9 MS. DE PAULO: Objection.

 77 10 Form.

 77 11 THE WITNESS: That's what is

 77 12 stated on this document.

Re: [77:1-77:12]

Def Obj Foundation (602); 3M MIL 

No. 26

OVERRULED

77:13 - 78:1 Zielinski 2020-06-22

 77 13 QUESTIONS BY MR. OVERHOLTZ:

 77 14 Q. Okay. Now, if we can go to the

 77 15 next slide, Corey.

 77 16 We pulled some information from

 77 17 the TJR website, TJR-mex.com, from the

 77 18 Wayback Machine.

 77 19 Are you familiar with the

 77 20 Wayback Machine?

 77 21 A. I am not, no.

 77 22 Q. Okay. That's an Internet

 77 23 service that will let you go and pull old web

 77 24 pages up that may not exist anymore.

 77 25 Okay?

 78 1 A. Okay.

78:2 - 79:8 Zielinski 2020-06-22

 78 2 Q. All right. So I just want to

 78 3 ask you a little bit about TJR.

 78 4 It says that "We are an

 78 5 independent company that was founded

 78 6 June 1995 with 60 employees and currently has

Re: [78:2-79:8]

Def Obj Foundation (602); 3M MIL 

No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 200 of 303
Zielinski 2020-06-22 15

 78 7 grown to 290 employees."

 78 8 Do you see that?

 78 9 A. Yes, I do.

 78 10 Q. Okay. When you were working on

 78 11 the Combat Arms version 2, how many employees

 78 12 did TJR have down in Mexico working on the

 78 13 Combat Arms version 2?

 78 14 MS. DE PAULO: Objection. Form

 78 15 and foundation.

 78 16 THE WITNESS: Can you repeat

 78 17 that, please?

 78 18 QUESTIONS BY MR. OVERHOLTZ:

 78 19 Q. Sure.

 78 20 When you had responsibility for

 78 21 the Combat Arms version 2 outsourced

 78 22 manufacturing at TJR, how many employees at

 78 23 TJR were working on the Combat Arms

 78 24 version 2?

 78 25 MS. DE PAULO: Same objection.

 79 1 THE WITNESS: Just for clarity,

 79 2 I was not responsible solely for

 79 3 Combat Arms, but it did fall within

 79 4 the category I was responsible for.

 79 5 And it's -- it's my understanding

 79 6 there were about three or four people

 79 7 that worked in that area when they

 79 8 first began.

79:9 - 80:3 Zielinski 2020-06-22

 79 9 QUESTIONS BY MR. OVERHOLTZ:

 79 10 Q. Okay. And did that increase

 79 11 over time?

 79 12 MS. DE PAULO: Objection.

 79 13 Form.

 79 14 THE WITNESS: Yes, it did.

 79 15 QUESTIONS BY MR. OVERHOLTZ:

 79 16 Q. Okay. Now, how many earplugs

 79 17 was TJR manufacturing or assembling for Aearo

 79 18 of this Combat Arms version 2?

 79 19 MS. DE PAULO: Objection.

Re: [79:9-80:3]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 201 of 303
Zielinski 2020-06-22 16

 79 20 Form.

 79 21 THE WITNESS: I don't recall

 79 22 how many they were manufacturing.

 79 23 QUESTIONS BY MR. OVERHOLTZ:

 79 24 Q. Hundreds of thousands?

 79 25 MS. DE PAULO: Objection.

 80 1 Form.

 80 2 THE WITNESS: I really can't

 80 3 remember. It varied.

80:4 - 81:3 Zielinski 2020-06-22

 80 4 (Zielinski Exhibit 4 marked for

 80 5 identification.)

 80 6 QUESTIONS BY MR. OVERHOLTZ:

 80 7 Q. Okay. Let me -- if we can go

 80 8 to the next slide, this is Kieper 67.

 80 9 So, Corey, if you have Kieper

 80 10 67, we can make this Exhibit Number 4 to the

 80 11 deposition.

 80 12 This is a news article about

 80 13 Angela Merkel, the chancellor of Germany, but

 80 14 it had a section attached to it related to

 80 15 businesses down in Mexico, and that's what I

 80 16 want to focus on.

 80 17 A. Okay. I see that.

 80 18 Q. Okay. So if we can look up at

 80 19 the top, it says, "The San Luis Potos�-based

 80 20 company which sits squarely on the major

 80 21 north-south route known as the, quote, 'NAFTA

 80 22 highway,' quote, has manufactured earplugs as

 80 23 well as safety goggles since 1995 for an

 80 24 American-based safety equipment company.

 80 25 Between 10 and 12 million earplugs move

 81 1 across TJR's floor every month."

 81 2 Do you see that?

 81 3 A. Yes, I do.

Re: [80:4-81:3]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

82:4 - 83:22 Zielinski 2020-06-22

 82 4 Q. Okay. It says, "Though the

 82 5 process is impressive, the plant's 400 floor

 82 6 employees work in modular stations surrounded

Re: [82:4-83:22]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 202 of 303
Zielinski 2020-06-22 17

 82 7 by hundreds of thousands of pairs of earplugs

 82 8 and goggles in varying states of assembly."

 82 9 Was that what you observed when

 82 10 you went down to Mexico to observe what was

 82 11 happening there?

 82 12 MS. DE PAULO: Objection.

 82 13 Form.

 82 14 THE WITNESS: I can't comment

 82 15 on the hundreds of thousands exact

 82 16 quantities, but in general terms it

 82 17 appears to be accurate.

 82 18 QUESTIONS BY MR. OVERHOLTZ:

 82 19 Q. Okay. It says, "Last year,

 82 20 company founder and general manager Javier

 82 21 Rodriguez" -- that's the JR in TJR, right?

 82 22 A. I'm not exactly sure what

 82 23 that -- what TJR stood for.

 82 24 Q. And if we can go to the next

 82 25 page of the PowerPoint, this is continuing in

 83 1 that article.

 83 2 It says, "The earplug business

 83 3 is TJR's meat and potatoes contract,

 83 4 providing the bulk of the company's 6 million

 83 5 in revenues last year alone. The producer

 83 6 sends the raw materials, and it is up to

 83 7 TJR's staff to put everything together,

 83 8 gluing, attaching, packaging and stocking

 83 9 boxes."

 83 10 Do you see that?

 83 11 A. Yes, I do.

 83 12 Q. Okay. "Though the market is

 83 13 dominated by the straightforward earplug

 83 14 available at the pharmacy, TJR also does

 83 15 smaller batch jobs for specialty products,

 83 16 including medical earplugs used by doctors to

 83 17 test hearing capability, and will manufacture

 83 18 to company-specific design, parentheses

 83 19 Budweiser wanted their earplugs to match the

 83 20 color of their beer."

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 203 of 303
Zielinski 2020-06-22 18

 83 21 Do you see that?

 83 22 A. Yes, I do.

84:19 - 84:25 Zielinski 2020-06-22

 84 19 In your time working in the

 84 20 global outsource manufacturing role at Aearo,

 84 21 was TJR the primary assembler of the Combat

 84 22 Arms version 2 earplug for Aearo?

 84 23 MS. DE PAULO: Object to form.

 84 24 THE WITNESS: It is my

 84 25 understanding.

Re: [84:19-84:25]

Def Obj 3M MIL No. 26; Vague (611, 

403)

OVERRULED

86:18 - 86:23 Zielinski 2020-06-22

 86 18 Q. You agree it was -- they were

 86 19 the primary assembler, correct?

 86 20 MS. DE PAULO: Objection.

 86 21 Form.

 86 22 THE WITNESS: I would agree

 86 23 they were the primary assembler.

Re: [86:18-86:23]

Def Obj 3M MIL No. 26; Vague (611, 

403)

OVERRULED

93:8 - 93:18 Zielinski 2020-06-22

 93 8 Q. So at some point you learned

 93 9 that Aearo Technologies in Indianapolis

 93 10 entered a joint venture with TJR in Mexico,

 93 11 and it became a division of Aearo

 93 12 Technologies?

 93 13 MS. DE PAULO: Objection.

 93 14 Form.

 93 15 THE WITNESS: I was aware at

 93 16 some point that the joint venture --

 93 17 we entered a joint venture.

 93 18 (Zielinski Exhibit 7 marked for

Re: [93:8-93:18]

Def Obj 3M MIL No. 26; Vague (611, 

403)

OVERRULED

95:3 - 95:15 Zielinski 2020-06-22

 95 3 Q. Okay. And TJR became to be

 95 4 known to you as Aearo Technologies de Mexico,

 95 5 or ATM; is that right?

 95 6 A. Yes. I think it was described

 95 7 as ATM.

 95 8 Q. All right. And I heard you use

 95 9 the word "maquiladora" earlier.

 95 10 What was maquiladora?

 95 11 MS. DE PAULO: Objection.

Re: [95:3-95:15]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 204 of 303
Zielinski 2020-06-22 19

 95 12 Form.

 95 13 THE WITNESS: Maquiladora is an

 95 14 operation that provides services to

 95 15 other parent companies.

96:3 - 96:18 Zielinski 2020-06-22

 96 3 With respect to the Combat Arms

 96 4 version earplug, TJR, and then as it became

 96 5 known, ATM, were performing those services

 96 6 for the benefit of their parent company,

 96 7 Aearo; is that right?

 96 8 MS. DE PAULO: Objection.

 96 9 Form.

 96 10 THE WITNESS: They acted as a

 96 11 manufacturing services provider for

 96 12 all of the earplugs that they

 96 13 currently were producing there for

 96 14 Aearo Technologies.

 96 15 QUESTIONS BY MR. OVERHOLTZ:

 96 16 Q. Okay. And that would have

 96 17 included the Combat Arms version 2, right?

 96 18 A. It did include Combat Arms.

Re: [96:3-96:18]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

98:2 - 99:12 Zielinski 2020-06-22

 98 2 Q. Okay. Let's look at the next

 98 3 slide, Corey, and we'll mark this as Exhibit

 98 4 Number 10, which is a series of photos,

 98 5 RZ-5006, 5007, 5008, 5009 and 5010. And

 98 6 we'll mark them all together as Exhibit

 98 7 Number 10.

 98 8 Can you see those photos on

 98 9 your screen, Mr. Zielinski?

 98 10 A. Yes, I can.

 98 11 Q. And do these look like pictures

 98 12 of the facility at TJR Mexico whenever you

 98 13 visited there?

 98 14 MS. DE PAULO: Objection.

 98 15 Form.

 98 16 THE WITNESS: They do appear to

 98 17 be from TJR manufacturing.

 98 18 QUESTIONS BY MR. OVERHOLTZ:

Re: [98:2-99:12]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 205 of 303
Zielinski 2020-06-22 20

 98 19 Q. Okay. And these are fair and

 98 20 accurate representation of the scene as you

 98 21 observed it when you made your trips down to

 98 22 TJR in Mexico; is that right?

 98 23 MS. DE PAULO: Objection.

 98 24 Form.

 98 25 THE WITNESS: Well, these are

 99 1 photos of the different assemblies,

 99 2 operations, that they had there at

 99 3 TJR.

 99 4 QUESTIONS BY MR. OVERHOLTZ:

 99 5 Q. Okay. And this is consistent

 99 6 with what you observed when you made your

 99 7 visits; is that right?

 99 8 MS. DE PAULO: Objection.

 99 9 Form.

 99 10 THE WITNESS: This looks

 99 11 similar to what I've seen when I was

 99 12 down there.

111:7 - 111:16 Zielinski 2020-06-22

 111 7 What would you say would have

 111 8 been your primary responsibility related to

 111 9 the Combat Arms version earplug -- version 2

 111 10 with respect to what they were doing down in

 111 11 TJR Mexico?

 111 12 A. As I said earlier, my

 111 13 responsibilities were centered around making

 111 14 sure that they produced products with the

 111 15 right quantity, to meet the customers'

 111 16 delivery due date expectations.

Re: [111:7-111:16]

Pltf Obj 403 (cumulative), outside 

scope of "clarification"

SUSTAINED

113:8 - 114:5 Zielinski 2020-06-22

 113 8 QUESTIONS BY MR. OVERHOLTZ:

 113 9 Q. Okay. All right. Let's -- let

 113 10 me ask you a little bit -- I mean, one of the

 113 11 things that you knew about the Combat Arms

 113 12 version 2 dual-ended plug was this was a very

 113 13 high visibility or high impact product at

 113 14 Aearo and 3M, right?

 113 15 MS. DE PAULO: Objection.

Re: [113:8-114:5]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 206 of 303
Zielinski 2020-06-22 21

 113 16 Form.

 113 17 THE WITNESS: I was not aware

 113 18 of that.

 113 19 QUESTIONS BY MR. OVERHOLTZ:

 113 20 Q. I mean, by the mid-2000s, did

 113 21 you feel like -- that the pressure was on at

 113 22 Aearo to fill the huge orders that were

 113 23 coming in for this Combat Arms version 2

 113 24 dual-ended earplug?

 113 25 MS. DE PAULO: Objection.

 114 1 Form.

 114 2 THE WITNESS: All our customers

 114 3 had high expectations for our product,

 114 4 and the expectation was to deliver the

 114 5 product on time.

115:14 - 116:9 Zielinski 2020-06-22

 115 14 (Zielinski Exhibit 12 marked

 115 15 for identification.)

 115 16 QUESTIONS BY MR. OVERHOLTZ:

 115 17 Q. All right. Let's mark as

 115 18 exhibit number -- are we up to 12? RZ-259.

 115 19 And if we can flip to the next

 115 20 slide after you send that over the transom,

 115 21 Corey.

 115 22 So if we can look down at the

 115 23 bottom of the screen, this is Exhibit 12,

 115 24 RZ-259. There's an e-mail that you sent on

 115 25 February 15th, 2005, at 10:02 a.m.

 116 1 Do you see that e-mail,

 116 2 Mr. Zielinski?

 116 3 A. Yes, I do.

 116 4 Q. All right. And you write to

 116 5 Elliott.

 116 6 Would that have been Elliott

 116 7 Berger?

 116 8 A. Yes, that would have been

 116 9 Elliott Berger.

Re: [115:14-116:9]

Def Obj 3M MIL No. 26

OVERRULED

116:15 - 117:18 Zielinski 2020-06-22

 116 15 Q. Okay. But you send him this

Re: [116:15-117:18]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 207 of 303
Zielinski 2020-06-22 22

 116 16 e-mail on February 15, 2005, Exhibit 12, and

 116 17 say, "Elliott, Can we please get confirmed

 116 18 dates from Etymotic for the testers we

 116 19 ordered? We are getting hit with huge orders

 116 20 for the Combat Arms product, and the pressure

 116 21 is on to get them filled ASAP."

 116 22 Do you see that?

 116 23 A. Yes, I do.

 116 24 Q. You go on and tell Mr. Berger,

 116 25 "This whole project is getting high

 117 1 visibility in the company."

 117 2 Do you see that?

 117 3 A. Yes, I do.

 117 4 Q. Does that refresh your

 117 5 recollection that this was a high visibility

 117 6 product at Aearo, 3M, by the mid-2000s and

 117 7 the pressure was on to fill huge orders?

 117 8 MS. DE PAULO: Objection.

 117 9 Form.

 117 10 THE WITNESS: Apparently at

 117 11 that point in time that was my opinion

 117 12 of the situation.

 117 13 QUESTIONS BY MR. OVERHOLTZ:

 117 14 Q. Yeah. And that's what you told

 117 15 Elliott Berger on February 15th of 2005,

 117 16 right?

 117 17 A. That's what the e-mail states,

 117 18 yes.

118:16 - 118:19 Zielinski 2020-06-22

 118 16 Did you know that Aearo had

 118 17 told the US military that 100 percent of the

 118 18 Combat Arms version 2 would be tested?

 118 19 A. I was not aware of that.

Re: [118:16-118:19]

Def Obj 3M MIL No. 26

OVERRULED

119:5 - 119:12 Zielinski 2020-06-22

 119 5 Did you understand that Aearo

 119 6 had told the US military that this testing of

 119 7 the Combat Arms version 2 when it was being

 119 8 assembled would make sure that the yellow end

 119 9 filter in the plug would protect soldiers'

Re: [119:5-119:12]

Def Obj 3M MIL No. 26; Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 208 of 303
Zielinski 2020-06-22 23

 119 10 hearing?

 119 11 A. I was not aware of

 119 12 communication that took place there, no.

120:1 - 120:5 Zielinski 2020-06-22

 120 1 Did you have an understanding

 120 2 that 100 percent of these Combat Arms

 120 3 version 2 had to be tested to make sure that

 120 4 the filter worked inside the Combat Arms

 120 5 version 2 earplug?

Re: [120:1-120:5]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

120:8 - 120:10 Zielinski 2020-06-22

 120 8 THE WITNESS: I was aware that

 120 9 there was a requirement to test the

 120 10 plugs, 100 percent of the plugs.

Re: [120:8-120:10]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

120:11 - 120:13 Zielinski 2020-06-22

 120 11 QUESTIONS BY MR. OVERHOLTZ:

 120 12 Q. So you knew that 100 percent

 120 13 had to be tested, right?

120:16 - 120:17 Zielinski 2020-06-22

 120 16 THE WITNESS: I was aware, yes.

 120 17 QUESTIONS BY MR. OVERHOLTZ:

120:18 - 121:1 Zielinski 2020-06-22

 120 18 Q. Okay. And did you understand

 120 19 why they had to be tested?

 120 20 A. No, I did not.

 120 21 Q. I mean, does the fact that the

 120 22 testing of the plug would make sure that the

 120 23 yellow end filter would work and protect the

 120 24 soldiers' hearing when there were loud

 120 25 noises, did that make it a good policy to

 121 1 test 100 percent of the plugs?

Re: [120:18-121:1]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

121:4 - 121:7 Zielinski 2020-06-22

 121 4 THE WITNESS: The requirement

 121 5 for testing was determined by our

 121 6 technical department, so I went to

 121 7 them.

Re: [121:4-121:7]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

122:2 - 122:8 Zielinski 2020-06-22

 122 2 Q. And this testing that we're

 122 3 talking about, did you understand that that

 122 4 testing was through the use of an ARC

Re: [122:2-122:8]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 209 of 303
Zielinski 2020-06-22 24

 122 5 machine?

 122 6 A. I am familiar with that

 122 7 terminology, yes, that that -- ARC machine,

 122 8 yes.

124:7 - 124:17 Zielinski 2020-06-22

 124 7 So you're saying that no one

 124 8 from technical, whether it be Bob Klun, Dick

 124 9 Knauer, Elliott Berger, Ron Kieper or anyone

 124 10 else, ever told you that if this testing with

 124 11 the ARC machine wasn't reliable, then Aearo

 124 12 couldn't assure the military that this yellow

 124 13 end filter was going to work to protect

 124 14 soldiers' hearing?

 124 15 MS. DE PAULO: Same objection.

 124 16 THE WITNESS: I don't recall

 124 17 having that conversation with anyone.

Re: [124:7-124:17]

Def Obj 3M MIL No. 26; Assumes, 

Compound, Argumentative (611, 403); 

Prejudice (403)

SUSTAINED

124:18 - 124:22 Zielinski 2020-06-22

 124 18 QUESTIONS BY MR. OVERHOLTZ:

 124 19 Q. You don't recall having that

 124 20 conversation with anyone?

 124 21 A. No. That was never stated to

 124 22 me that I can ever remember.

124:23 - 125:15 Zielinski 2020-06-22

 124 23 Q. All right. Well, let's take a

 124 24 look then at what Aearo did tell the US

 124 25 military about quality testing.

 125 1 Corey, are you able to take

 125 2 back the screen and go back to the

 125 3 PowerPoint. I want to go to slide 28, Corey.

 125 4 All right. So what did Aearo

 125 5 tell the US military about quality testing?

 125 6 If we go to the next slide,

 125 7 let's mark as Exhibit 13 RZ-525.

 125 8 (Zielinski Exhibit 13 marked

 125 9 for identification.)

 125 10 QUESTIONS BY MR. OVERHOLTZ:

 125 11 Q. And I have that e-mail,

 125 12 Exhibit 13, pulled up on the screen,

 125 13 Mr. Zielinski. Let me know if you can see

Re: [124:23-125:15]

Def Obj Relevance (401, 402); 

Prejudice (403); 3M MIL No. 26; 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 210 of 303
Zielinski 2020-06-22 25

 125 14 it.

 125 15 A. I can see that.

125:16 - 126:6 Zielinski 2020-06-22

 125 16 Q. Okay. And you knew who Dick

 125 17 Knauer was?

 125 18 A. Yes, I knew Dick Knauer.

 125 19 Q. Okay. And he was head of the

 125 20 E-A-RCAL laboratory, Elliott Berger's boss;

 125 21 is that right?

 125 22 A. I don't know that to be the

 125 23 case. I'm not sure of the organizational

 125 24 structure there.

 125 25 Q. You knew he was in technical?

 126 1 A. Yes, I knew him to be in

 126 2 technical.

 126 3 Q. And you knew he worked under

 126 4 Bob Klun?

 126 5 A. Yes, I did know he worked under

 126 6 Bob Klun.

126:7 - 126:12 Zielinski 2020-06-22

 126 7 Q. I mean, Mr. Klun was a VP over

 126 8 there, right, a big shot?

 126 9 MS. DE PAULO: Objection.

 126 10 Form.

 126 11 THE WITNESS: His title was

 126 12 vice president.

Re: [126:7-126:12]

Def Obj Relevance (401, 402); 

Argumentative (611, 403); Prejudice 

(403)

SUSTAINED

126:13 - 127:17 Zielinski 2020-06-22

 126 13 QUESTIONS BY MR. OVERHOLTZ:

 126 14 Q. And he writes this e-mail to

 126 15 Brian Myers. He was a marketing guy, right?

 126 16 A. It's my understanding that

 126 17 Brian was in marketing.

 126 18 Q. And Gary Warren, another

 126 19 marketing guy?

 126 20 A. He was in marketing. I'm not

 126 21 sure his exact role.

 126 22 Q. All right. So let's look down

 126 23 at the bottom of the screen there. Gary

 126 24 Warren e-mails on January 5th at 2:34 p.m.

Re: [126:13-127:17]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 211 of 303
Zielinski 2020-06-22 26

 126 25 and says, "Dick, how do we test the

 127 1 effectiveness of Combat Arms to ensure that

 127 2 it in fact blocks out impact noise levels?"

 127 3 Do you see that?

 127 4 A. Yes, I do.

 127 5 Q. Now, effectiveness, you know

 127 6 what that means?

 127 7 A. I understand the word

 127 8 "effective."

 127 9 Q. It means whether the plug works

 127 10 or not, right?

 127 11 A. I'm not exactly sure how it's

 127 12 used in this context.

 127 13 Q. I mean, what Gary Warren asked

 127 14 Dick is, "How do we ensure that it blocks out

 127 15 impact noise levels?"

 127 16 Do you see that?

 127 17 A. I see that, yes.

127:18 - 127:22 Zielinski 2020-06-22

 127 18 Q. And did you know that's what

 127 19 the yellow end was supposed to do, was to

 127 20 block out impact noise levels?

 127 21 A. I was not aware of the

 127 22 function -- the function of that plug, no.

127:23 - 128:8 Zielinski 2020-06-22

 127 23 Q. Okay. So in those 50 trips

 127 24 that you made down to Mexico to check on what

 127 25 was happening there, you didn't know that --

 128 1 what the function of the yellow end of the

 128 2 plug was when it was being used by our

 128 3 soldiers; is that right?

 128 4 MS. DE PAULO: Objection.

 128 5 Form.

 128 6 THE WITNESS: I was not aware

 128 7 of the actual function of the plug,

 128 8 no.

Re: [127:23-128:8]

Def Obj Argumentative (611, 403); 

Relevance (401, 402)

OVERRULED

128:9 - 128:18 Zielinski 2020-06-22

 128 9 QUESTIONS BY MR. OVERHOLTZ:

 128 10 Q. All right. So Dick Knauer

Re: [128:9-128:18]

Def Obj 3M MIL No. 26; Hearsay (801, 

802); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 212 of 303
Zielinski 2020-06-22 27

 128 11 responds to Gary's e-mail at the top and

 128 12 says, "Gary, we've developed a test fixture

 128 13 that measures acoustical impedance."

 128 14 Do you see that?

 128 15 A. Yes, I do.

 128 16 Q. That's talking about the ARC

 128 17 machine, right?

 128 18 A. I don't know.

128:19 - 129:1 Zielinski 2020-06-22

 128 19 Q. I mean, when you went down to

 128 20 Mexico to figure out what was going on with

 128 21 those ARC machines, do you have any idea what

 128 22 they were supposed to be checking?

 128 23 MS. DE PAULO: Objection to

 128 24 form.

 128 25 THE WITNESS: I was not aware

 129 1 of exactly what they were testing, no.

Re: [128:19-129:1]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403)

OVERRULED

129:2 - 129:19 Zielinski 2020-06-22

 129 2 QUESTIONS BY MR. OVERHOLTZ:

 129 3 Q. Well, let's see what Dick says

 129 4 to Gary and see if this helps us understand

 129 5 this now in 2020.

 129 6 "When the product was

 129 7 developed, the Combat Arms were tested at a

 129 8 firing range. For those that provided

 129 9 acceptable performance for blocking out the

 129 10 appropriate amount of impact noise, it was

 129 11 determined that those plugs had a particular

 129 12 acoustical impedance."

 129 13 Do you see that?

 129 14 A. Yes, I do.

 129 15 Q. And it says, "A range of

 129 16 acceptable acoustical impedance was developed

 129 17 thereafter."

 129 18 Right?

 129 19 A. That's what it states, yes.

Re: [129:2-129:19]

Def Obj 3M MIL No. 26; Foundation 

(602); Hearsay (801, 802)

OVERRULED

129:20 - 130:3 Zielinski 2020-06-22

 129 20 Q. Okay. And you know that those

 129 21 ARC machines had a range, right? That they

Re: [129:20-130:3]

Def Obj Compound (611, 403); 3M 

MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 213 of 303
Zielinski 2020-06-22 28

 129 22 even put a sticker on them to show what the

 129 23 range could be when they tested the plugs,

 129 24 right?

 129 25 MS. DE PAULO: Objection.

 130 1 Form.

 130 2 THE WITNESS: I know there was

 130 3 a range provided.

130:4 - 130:9 Zielinski 2020-06-22

 130 4 QUESTIONS BY MR. OVERHOLTZ:

 130 5 Q. He said, "Currently when a

 130 6 product -- when product is assembled, this

 130 7 testing is done on 100 percent of the plugs."

 130 8 Do you see that?

 130 9 A. Yes, I do.

Re: [130:4-130:9]

Def Obj 3M MIL No. 26; Hearsay (801, 

802); Foundation (602)

OVERRULED

130:21 - 131:4 Zielinski 2020-06-22

 130 21 Dick told the marketing folks

 130 22 that they test 100 percent of the plugs

 130 23 because that's how you test the effectiveness

 130 24 of the Combat Arms plug to block out impact

 130 25 noise.

 131 1 MS. DE PAULO: Same objection.

 131 2 THE WITNESS: That's what he --

 131 3 you're stating correctly what the

 131 4 e-mail says here.

Re: [130:21-131:4]

Def Obj 3M MIL No. 26; Hearsay (801, 

802)

OVERRULED

131:5 - 131:20 Zielinski 2020-06-22

 131 5 QUESTIONS BY MR. OVERHOLTZ:

 131 6 Q. And did they tell you that, the

 131 7 guy that's in charge of this outsource

 131 8 manufacturing assembly of this plug, that

 131 9 that's why you test 100 percent of them? Or

 131 10 you just knew --

 131 11 A. No.

 131 12 Q. -- you were supposed to do it?

 131 13 A. No, I was not made aware of the

 131 14 specific requirements or the impact of what

 131 15 that testing had on the plug.

 131 16 Q. Is that something you would

 131 17 have -- sorry. I'm sorry. Go ahead.

 131 18 A. No, I just -- I'm just saying I

Re: [131:5-131:20]

Def Obj 3M MIL No. 26; Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 214 of 303
Zielinski 2020-06-22 29

 131 19 knew that the requirements that they had to

 131 20 be 100 percent tested.

131:21 - 132:4 Zielinski 2020-06-22

 131 21 Q. Okay. Is that something that

 131 22 you would have liked to have known about why

 131 23 you were doing that ARC testing, to make sure

 131 24 the product worked?

 131 25 MS. DE PAULO: Objection.

 132 1 Form.

 132 2 THE WITNESS: It was not

 132 3 important for me to understand the

 132 4 requirements of that.

Re: [131:21-132:4]

Def Obj 3M MIL No. 26; Relevance 

(401, 402)

OVERRULED

132:5 - 132:10 Zielinski 2020-06-22

 132 5 (Zielinski Exhibit 14 marked

 132 6 for identification.)

 132 7 QUESTIONS BY MR. OVERHOLTZ:

 132 8 Q. Okay. Let's look at the next

 132 9 slide, and we'll mark as Exhibit Number 14

 132 10 RZ -- I'm sorry, P1383.

Re: [132:5-132:10]

Def Obj Foundation (602)

OVERRULED

132:11 - 132:14 Zielinski 2020-06-22

 132 11 Are you familiar with something

 132 12 called a Medical Procurement Item Description

 132 13 for the Combat Arms plus, the MPID?

 132 14 A. No, not at all.

133:3 - 133:8 Zielinski 2020-06-22

 133 3 Have you ever seen or been

 133 4 provided a copy of this Medical Procurement

 133 5 Item Description of the Combat Arms Earplug

 133 6 that Aearo provided to the US military?

 133 7 A. I do not recall seeing this

 133 8 document, no.

133:19 - 134:3 Zielinski 2020-06-22

 133 19 Q. Okay. But if we look under

 133 20 item identification, we see we're talking

 133 21 about the Combat Arms double-ended 50-pair,

 133 22 right?

 133 23 A. Yes, I see that.

 133 24 Q. All right. When TJR would

 133 25 assemble the Combat Arms version 2 down in

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 215 of 303
Zielinski 2020-06-22 30

 134 1 Mexico, would they bag them up 50 to a pair

 134 2 to send them back, or did that bagging happen

 134 3 somewhere else?

134:6 - 134:14 Zielinski 2020-06-22

 134 6 THE WITNESS: TJR was required

 134 7 to package the product and ship it

 134 8 back, but...

 134 9 QUESTIONS BY MR. OVERHOLTZ:

 134 10 Q. You don't remember whether they

 134 11 bagged them up 50 to a pair -- I mean

 134 12 50 pairs to a bag?

 134 13 A. No, I don't recall that

 134 14 exactly.

134:15 - 135:9 Zielinski 2020-06-22

 134 15 Q. All right. I want to show you

 134 16 what they said in this item description that

 134 17 they sent to the military on Section 4.3.2,

 134 18 which is on page 3, about halfway down. And

 134 19 I have it up on the screen. It's the section

 134 20 labeled sound attenuation.

 134 21 Do you see that?

 134 22 A. Oh, yes.

 134 23 Q. Okay. And it says, "Sampling

 134 24 for inspection of sound attenuation."

 134 25 Do you know what sound

 135 1 attenuation is?

 135 2 A. In general terms.

 135 3 Q. It means how much the product

 135 4 blocks the sound, right? How much it works,

 135 5 right?

 135 6 MS. DE PAULO: Objection.

 135 7 Form.

 135 8 THE WITNESS: I'm not exactly

 135 9 sure of the definition of that.

Re: [134:15-135:9]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

135:10 - 135:17 Zielinski 2020-06-22

 135 10 QUESTIONS BY MR. OVERHOLTZ:

 135 11 Q. Well, let's see what it says.

 135 12 It says, "Sampling for inspection of sound

 135 13 attenuation of the level-dependent yellow end

Re: [135:10-135:17]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 216 of 303
Zielinski 2020-06-22 31

 135 14 shall be 100 percent and shall be verified

 135 15 using an acoustical impedance test."

 135 16 Do you see that?

 135 17 A. I do see that.

135:18 - 136:2 Zielinski 2020-06-22

 135 18 Q. Okay. And what we talked about

 135 19 before, that Dick Knauer explained to Gary

 135 20 Warren and -- that's what the ARC machine

 135 21 tested, right, acoustical impedance?

 135 22 MS. DE PAULO: Objection.

 135 23 Form.

 135 24 THE WITNESS: I believe -- I'm

 135 25 not exactly sure. I'd have to look at

 136 1 that document to see if it states that

 136 2 exactly.

Re: [135:18-136:2]

Def Obj 3M MIL No. 26; Hearsay (801, 

802); Vague (611, 403)

OVERRULED

136:3 - 136:6 Zielinski 2020-06-22

 136 3 QUESTIONS BY MR. OVERHOLTZ:

 136 4 Q. Sure. If we could go back

 136 5 to -- if we could go back to exhibit -- the

 136 6 slide before that, slide 29, Corey. This was

Re: [136:3-136:6]

Def Obj Relevance (401, 402); 

Prejudice (403); Incomplete (403)

OVERRULED

136:7 - 137:6 Zielinski 2020-06-22

 136 7 the Dick Knauer e-mail.

 136 8 It says, "It was determined

 136 9 that those plugs had a particular acoustical

 136 10 impedance."

 136 11 And he says, "Gary, we have

 136 12 developed a test fixture that measures

 136 13 acoustical impedance."

 136 14 Right?

 136 15 A. Yes, it does. Okay.

 136 16 (Zielinski Exhibit 15 marked

 136 17 for identification.)

 136 18 QUESTIONS BY MR. OVERHOLTZ:

 136 19 Q. All right. So let's go back to

 136 20 slide 30.

 136 21 And let's look at slide 31, if

 136 22 we can, and we'll mark P1364A as Exhibit 15.

 136 23 This was the item description that Aearo gave

 136 24 the military back in April of 2003.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 217 of 303
Zielinski 2020-06-22 32

 136 25 And if you look with me at

 137 1 Section 4.3.2, it says the same thing, right,

 137 2 "that the level-dependent yellow end testing

 137 3 shall be 100 percent and shall be verified

 137 4 using an acoustical impedance test?"

 137 5 Do you see that?

 137 6 A. I do see that, yes.

137:17 - 138:18 Zielinski 2020-06-22

 137 17 (Zielinski Exhibit 16 marked

 137 18 for identification.)

 137 19 QUESTIONS BY MR. OVERHOLTZ:

 137 20 Q. All right. Let's look at the

 137 21 next slide, 32, which is -- and we'll mark as

 137 22 Exhibit Number 16 Plaintiff's 0364.

 137 23 This is a July 2006 e-mail to

 137 24 Thomas Sidor at DSCP from Brian Meyers.

 137 25 Do you see that?

 138 1 A. Yes, I do.

 138 2 Q. And you understood that DSCP

 138 3 was part of the United States government,

 138 4 right?

 138 5 A. At that point I was not sure of

 138 6 that, no.

 138 7 Q. You know that now, though,

 138 8 right?

 138 9 A. Now that you told me, yes.

 138 10 Q. Okay. Thomas Sidor, do you

 138 11 remember him?

 138 12 A. I'm not familiar with Tom. I

 138 13 remember the name, but I don't know who he

 138 14 was or what his responsibilities were.

 138 15 Q. Okay. The subject of this

 138 16 e-mail is "information pertaining to the

 138 17 Combat Arms Earplugs," right?

 138 18 A. Yes.

138:19 - 138:24 Zielinski 2020-06-22

 138 19 Q. And let's look at Item

 138 20 Number 3. It says, "We have developed a

 138 21 special test fixture we use to test every

Re: [138:19-138:24]

Def Obj 3M MIL No. 26; Hearsay (801, 

802)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 218 of 303
Zielinski 2020-06-22 33

 138 22 Combat Arms Earplug which we make."

 138 23 Right?

 138 24 A. That's what it says there, yes.

139:7 - 139:10 Zielinski 2020-06-22

 139 7 Q. Okay. Did you ever hear the

 139 8 ARC machine referred to as the special test

 139 9 fixture?

 139 10 A. No, I didn't.

139:11 - 139:25 Zielinski 2020-06-22

 139 11 Q. Let's go back up to slide 29,

 139 12 if we can, for a second, Corey.

 139 13 This was -- Dick Knauer told

 139 14 Gary Warren, we have developed a test

 139 15 fixture.

 139 16 Right?

 139 17 A. Okay.

 139 18 Q. So let's go down to 32 again,

 139 19 P364, and it says, "This test" -- you follow

 139 20 with me? "This test assures that the filter

 139 21 is properly made and assembled into the

 139 22 earplug so that when a very loud noise

 139 23 occurs, the earplug will function properly."

 139 24 Do you see that?

 139 25 A. Yes, I do.

Re: [139:11-139:25]

Def Obj 3M MIL No. 26; Hearsay (801, 

802)

OVERRULED

140:13 - 141:2 Zielinski 2020-06-22

 140 13 I mean, Brian Myers is telling

 140 14 Tom Sidor at DSCP that they test all the

 140 15 plugs that they make to make sure that that

 140 16 filter was made right and that it was

 140 17 assembled properly in the plug so that when a

 140 18 loud noise occurs, the earplug would function

 140 19 properly. Right?

 140 20 MS. DE PAULO: Same objection.

 140 21 THE WITNESS: What Brian Myers

 140 22 stated is that we have the special

 140 23 test fixture to use to test every

 140 24 Combat Arms plug which we make. This

 140 25 test assures that the filter is

Re: [140:13-141:2]

Def Obj 3M MIL No. 26; Hearsay (801, 

802); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 219 of 303
Zielinski 2020-06-22 34

 141 1 properly made and assembled in the

 141 2 earplug.

141:3 - 141:10 Zielinski 2020-06-22

 141 3 QUESTIONS BY MR. OVERHOLTZ:

 141 4 Q. And this assembly and testing

 141 5 is going to happen down at TJR in Mexico,

 141 6 right?

 141 7 MS. DE PAULO: Objection.

 141 8 Form.

 141 9 THE WITNESS: He did not say

 141 10 that here.

Re: [141:3-141:10]

Def Obj 3M MIL No. 26; Misstates 

(611, 403)

OVERRULED

141:11 - 141:17 Zielinski 2020-06-22

 141 11 QUESTIONS BY MR. OVERHOLTZ:

 141 12 Q. But that's where it was going

 141 13 to happen, right? That's where the plugs

 141 14 were getting assembled?

 141 15 MS. DE PAULO: Objection.

 141 16 Form.

 141 17 THE WITNESS: Correct.

Re: [141:11-141:17]

Def Obj 3M MIL No. 26; Compound 

(611, 403)

OVERRULED

141:18 - 141:24 Zielinski 2020-06-22

 141 18 QUESTIONS BY MR. OVERHOLTZ:

 141 19 Q. That's where they did this

 141 20 testing to make sure that they had been

 141 21 assembled properly and worked right?

 141 22 MS. DE PAULO: Objection.

 141 23 THE WITNESS: The test was

 141 24 performed at TJR manufacturing.

Re: [141:18-141:24]

Def Obj 3M MIL No. 26; Assumes 

(611, 403)

OVERRULED

148:20 - 148:22 Zielinski 2020-06-22

 148 20 I want to talk a little bit

 148 21 about some of the ARC testing that was

 148 22 happening in Mexico back in the early 2000s.

Re: [148:20-148:22]

Def Obj 3M MIL No. 26; Relevance 

(401, 402)

OVERRULED

149:12 - 149:20 Zielinski 2020-06-22

 149 12 Q. Okay. And you can see that

 149 13 Exhibit 19 is a document entitled "The

 149 14 development of the Combat Arms Earplug

 149 15 versions 1 through 4," authored by Ronald

 149 16 Kieper and Elliott Berger.

 149 17 Corey, I think we need to be on

 149 18 slide 38. There we go.

Re: [149:12-149:20]

Def Obj Relevance (401, 402); 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 220 of 303
Zielinski 2020-06-22 35

 149 19 And you can see that it was a

 149 20 document entitled "July 23, 2010."

150:7 - 150:13 Zielinski 2020-06-22

 150 7 Prior to that, whenever this

 150 8 document was being developed in the 2000s,

 150 9 did you ever see this development of the

 150 10 Combat Arms Earplug version 1 through 4

 150 11 document?

 150 12 A. This does not look familiar to

 150 13 me at all.

Re: [150:7-150:13]

Pltf Obj outside scope of "clarification"

OVERRULED

151:11 - 151:14 Zielinski 2020-06-22

 151 11 Q. Do you see that section,

 151 12 Acoustic Resistance Checker?

 151 13 A. Over in the chat session?

 151 14 Yes, I do see that.

Re: [151:11-151:14]

Def Obj 3M MIL No. 26; Relevance 

(401, 402); Prejudice (403)

OVERRULED

151:15 - 152:6 Zielinski 2020-06-22

 151 15 Q. Okay. It says, "Acoustic

 151 16 resistance checker, ARC, another piece of

 151 17 equipment used to evaluate and to perform QA

 151 18 checks on the CAE is the Etymotic Research

 151 19 acoustic resistance checker, ARC, shown in

 151 20 Figure 4."

 151 21 Do you see that?

 151 22 A. Yes, I see that.

 151 23 Q. And QA, that would be quality

 151 24 assurance, right?

 151 25 A. That's my understanding.

 152 1 Q. And it says, "A 100 hertz tone

 152 2 is inserted into the ARC, a calibration pin

 152 3 is positioned on the unit, and the output is

 152 4 measured with a digital multimeter, DMM."

 152 5 Do you see that?

 152 6 A. Yes, I do.

Re: [151:15-152:6]

Def Obj 3M MIL No. 26

OVERRULED

152:7 - 152:15 Zielinski 2020-06-22

 152 7 Q. Okay. And these calibration

 152 8 pins, those were important parts of the ARC

 152 9 machine.

 152 10 Do you recall that?

 152 11 MS. DE PAULO: Objection.

Re: [152:7-152:15]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 221 of 303
Zielinski 2020-06-22 36

 152 12 Form.

 152 13 THE WITNESS: It's my

 152 14 understanding here that it's part of

 152 15 the calibration process.

152:16 - 153:1 Zielinski 2020-06-22

 152 16 QUESTIONS BY MR. OVERHOLTZ:

 152 17 Q. Okay. And these ARC machines

 152 18 had to be calibrated in order for them to be

 152 19 able to function correctly to ensure that the

 152 20 Combat Arms testing -- that the earplugs were

 152 21 within specification, right?

 152 22 MS. DE PAULO: Objection.

 152 23 Form.

 152 24 THE WITNESS: The procedure was

 152 25 stated that they are to calibrate

 153 1 these machines.

Re: [152:16-153:1]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

153:2 - 154:18 Zielinski 2020-06-22

 153 2 QUESTIONS BY MR. OVERHOLTZ:

 153 3 Q. Okay. It says, "After setup, a

 153 4 CAE, a Combat Arms Earplug, can be mounted on

 153 5 the nipple on top of the ARC, and a MV,

 153 6 millivolt, value corresponding to the amount

 153 7 of acoustical" -- sorry -- "resistance the

 153 8 plug gives can be read on the DMM."

 153 9 Right?

 153 10 A. Yes, I see that.

 153 11 Q. All right. So it says that a

 153 12 CAE can be mounted on top of the nipple on

 153 13 top of the ARC. That's what we saw in that

 153 14 picture before, right?

 153 15 A. That's what I understand.

 153 16 Q. Corey, can we show that on

 153 17 slide 36 real quick?

 153 18 That's the yellow end of the

 153 19 plug sitting on the nipple on top of the ARC

 153 20 machine, right?

 153 21 A. That's what it appears to be

 153 22 here, yes.

 153 23 Q. Okay. So we can go back then

Re: [153:2-154:18]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 222 of 303
Zielinski 2020-06-22 37

 153 24 to this section.

 153 25 And then it says, "The

 154 1 acceptance range of the open end, or the open

 154 2 position, for all versions of the CAE

 154 3 measured on the E-A-RCAL ARC is 4.1 to 6.5

 154 4 millivolts."

 154 5 Do you see that?

 154 6 A. Yes, I see that.

 154 7 Q. The open end, do you understand

 154 8 that to also be another way of describing the

 154 9 yellow end or the filter end?

 154 10 A. I am not exactly sure what they

 154 11 mean by "the open end."

 154 12 Q. Okay. You know that it was the

 154 13 yellow end that was being tested on the ARC

 154 14 machines, right?

 154 15 A. Well, I know the yellow end was

 154 16 inserted on the nipple. I'm not exactly sure

 154 17 of the specific functionality of the

 154 18 equipment.

165:10 - 165:16 Zielinski 2020-06-22

 165 10 QUESTIONS BY MR. OVERHOLTZ:

 165 11 Q. Okay. Now, these plugs, they

 165 12 were assembled down at TJR Mexico manually,

 165 13 right?

 165 14 A. Yes, they were.

 165 15 Q. That means by hand, right?

 165 16 A. Yes, it does.

Re: [165:10-165:16]

Def Obj 3M MIL No. 26

OVERRULED

166:1 - 166:8 Zielinski 2020-06-22

 166 1 QUESTIONS BY MR. OVERHOLTZ:

 166 2 Q. Sure.

 166 3 Someone down at TJR Mexico

 166 4 would take the little black filter pieces,

 166 5 put them together and stick it inside this

 166 6 white plastic insert piece, right?

 166 7 A. Yes, that was part of the

 166 8 operation.

Re: [166:1-166:8]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 223 of 303
Zielinski 2020-06-22 38

166:15 - 166:20 Zielinski 2020-06-22

 166 15 Q. I mean, it took manual

 166 16 dexterity to get that done, right?

 166 17 MS. DE PAULO: Objection.

 166 18 Form.

 166 19 THE WITNESS: In your opinion

 166 20 it is.

Re: [166:15-166:20]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

166:21 - 167:3 Zielinski 2020-06-22

 166 21 QUESTIONS BY MR. OVERHOLTZ:

 166 22 Q. All right. And the white --

 166 23 the white plastic piece, that has the little

 166 24 hole in it that you can see that allows sound

 166 25 to go through and pass through the filter so

 167 1 that the yellow end of the plug can work the

 167 2 way it's supposed to work.

 167 3 Did you understand that?

167:6 - 167:8 Zielinski 2020-06-22

 167 6 THE WITNESS: Yeah, I was not

 167 7 familiar with the design of the plug

 167 8 or how it actually functioned.

167:9 - 167:18 Zielinski 2020-06-22

 167 9 QUESTIONS BY MR. OVERHOLTZ:

 167 10 Q. So then did you understand that

 167 11 the people -- after they put this internal

 167 12 assembly together, this white plastic piece

 167 13 with the filter in it, then they would put a

 167 14 yellow end on one end of the plug, and put a

 167 15 green end on the other end of the plug, and

 167 16 that would be a finished plug, right?

 167 17 A. At that point the product would

 167 18 be fully assembled.

Re: [167:9-167:18]

Def Obj 3M MIL No. 26

OVERRULED

167:19 - 168:8 Zielinski 2020-06-22

 167 19 Q. Then once you got the product

 167 20 fully assembled, then you -- once you put it

 167 21 back together, all right, you put the yellow

 167 22 end on and you put the green end on, then you

 167 23 had to go sit it on top of one of those ARC

 167 24 machines, right? On the little nipple that

 167 25 we talked about, right?

Re: [167:19-168:8]

Def Obj 3M MIL No. 26; Compound 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 224 of 303
Zielinski 2020-06-22 39

 168 1 MS. DE PAULO: Objection.

 168 2 Form.

 168 3 THE WITNESS: According to the

 168 4 procedure --

 168 5 MS. DE PAULO: Sorry.

 168 6 THE WITNESS: According to the

 168 7 procedure, that was the next step in

 168 8 the process.

168:9 - 168:9 Zielinski 2020-06-22

 168 9 QUESTIONS BY MR. OVERHOLTZ:

168:10 - 168:18 Zielinski 2020-06-22

 168 10 Q. And the reason why you want to

 168 11 do that is to make sure that the readings

 168 12 were within the, quote, acceptable range,

 168 13 right?

 168 14 MS. DE PAULO: Objection.

 168 15 Form.

 168 16 THE WITNESS: I'm not exactly

 168 17 sure what the requirement was for

 168 18 that.

Re: [168:10-168:18]

Def Obj 3M MIL No. 26

OVERRULED

168:19 - 169:9 Zielinski 2020-06-22

 168 19 QUESTIONS BY MR. OVERHOLTZ:

 168 20 Q. The documents we looked at said

 168 21 that the measurement was made to make sure it

 168 22 was on the acceptable range, right?

 168 23 MS. DE PAULO: Objection.

 168 24 Form.

 168 25 

 169 1 QUESTIONS BY MR. OVERHOLTZ:

 169 2 Q. That's what that document said

 169 3 as to why you did the testing on the yellow

 169 4 end, is to make sure that the NV values

 169 5 were -- came within a, quote, acceptable

 169 6 range, right?

 169 7 A. I would have to go back and

 169 8 reread that document specifically to see if

 169 9 that's what it stated.

Re: [168:19-169:9]

Def Obj 3M MIL No. 26; Foundation 

(602)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 225 of 303
Zielinski 2020-06-22 40

169:10 - 169:24 Zielinski 2020-06-22

 169 10 Q. We'll go take a look at that in

 169 11 just a second, but let me ask you this.

 169 12 A. Okay.

 169 13 Q. When someone is putting this

 169 14 plug together, or trying to put together the

 169 15 yellow end and the green end, I mean, there's

 169 16 nothing that keeps them from putting the

 169 17 yellow end on the part without a filter,

 169 18 right, and putting the green end on the part

 169 19 with a filter? I mean, it goes together that

 169 20 way, too, right?

 169 21 MS. DE PAULO: Objection.

 169 22 Form.

 169 23 THE WITNESS: It appears you

 169 24 were able to do that.

Re: [169:10-169:24]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

169:25 - 170:1 Zielinski 2020-06-22

 169 25 

 170 1 QUESTIONS BY MR. OVERHOLTZ:

170:1 - 170:16 Zielinski 2020-06-22

 170 1 QUESTIONS BY MR. OVERHOLTZ:

 170 2 Q. And you can't tell by looking

 170 3 at it that the filter is in the wrong end,

 170 4 right?

 170 5 A. Visually, you cannot tell that.

 170 6 Q. Right.

 170 7 So then you got to stick it on

 170 8 one of those ARC machines and run a

 170 9 measurement so you can make sure the plug

 170 10 wasn't put together backwards down at TJR

 170 11 Mexico, right?

 170 12 MS. DE PAULO: Objection.

 170 13 Form.

 170 14 THE WITNESS: It was placed on

 170 15 a machine to determine whether it met

 170 16 the internal specifications in this.

Re: [170:1-170:16]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

170:17 - 171:2 Zielinski 2020-06-22

 170 17 QUESTIONS BY MR. OVERHOLTZ:

 170 18 Q. Right.

Re: [170:17-171:2]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 226 of 303
Zielinski 2020-06-22 41

 170 19 And you would expect that test

 170 20 to tell you whether it was put together

 170 21 backwards, right?

 170 22 MS. DE PAULO: Objection.

 170 23 Form.

 170 24 THE WITNESS: I don't know if

 170 25 the equipment would do that or not.

 171 1 The technical group would have to

 171 2 answer that question.

171:15 - 172:9 Zielinski 2020-06-22

 171 15 If it was true that the ARC

 171 16 test would help you make sure the thing

 171 17 wasn't put together backwards down at TJR

 171 18 Mexico, that would make that test a pretty

 171 19 important test, right?

 171 20 MS. DE PAULO: Same objection.

 171 21 THE WITNESS: I don't know that

 171 22 the test was in place to make sure it

 171 23 was not put together backwards.

 171 24 QUESTIONS BY MR. OVERHOLTZ:

 171 25 Q. Right.

 172 1 But if it was, if that was one

 172 2 of the things that test would make sure of,

 172 3 that would make it pretty important, right?

 172 4 MS. DE PAULO: Objection.

 172 5 Form.

 172 6 THE WITNESS: I guess testing

 172 7 in general is just -- it's part of the

 172 8 operation. It's determined by the

 172 9 technical group.

Re: [171:15-172:9]

Def Obj 3M MIL No. 26; Foundation 

(602)

SUSTAINED

172:10 - 173:4 Zielinski 2020-06-22

 172 10 QUESTIONS BY MR. OVERHOLTZ:

 172 11 Q. Well, let me ask you this: So

 172 12 what if the test helped make sure that when

 172 13 they shoved that filter down inside this

 172 14 white plastic piece, the white plastic piece

 172 15 hadn't cracked any?

 172 16 Would that make it an important

 172 17 test?

Re: [172:10-173:4]

Def Obj 3M MIL No. 26; Compound 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 227 of 303
Zielinski 2020-06-22 42

 172 18 MS. DE PAULO: Objection.

 172 19 Form.

 172 20 THE WITNESS: The testing was

 172 21 just designed -- let me restate that.

 172 22 It's my understanding that the

 172 23 plugs had to be tested 100 percent to

 172 24 meet the specifications that were

 172 25 outlined by the technical group.

 173 1 QUESTIONS BY MR. OVERHOLTZ:

 173 2 Q. I mean --

 173 3 A. I can't comment on the

 173 4 importance of the testing.

173:5 - 174:1 Zielinski 2020-06-22

 173 5 Q. Okay. I mean, cracks in the

 173 6 white plastic piece, that was an issue that

 173 7 you were aware of for the assembly down

 173 8 there, right?

 173 9 MS. DE PAULO: Objection.

 173 10 Form.

 173 11 THE WITNESS: I don't recall

 173 12 being -- I don't recall issues with

 173 13 cracking of that part.

 173 14 QUESTIONS BY MR. OVERHOLTZ:

 173 15 Q. I mean, if you're selling this

 173 16 to the US military, you wouldn't want the US

 173 17 military being sold plugs with cracked stems,

 173 18 right?

 173 19 MS. DE PAULO: Objection.

 173 20 Form.

 173 21 QUESTIONS BY MR. OVERHOLTZ:

 173 22 Q. Would that be acceptable?

 173 23 MS. DE PAULO: Same objection.

 173 24 THE WITNESS: I do not have the

 173 25 technical training to be able to

 174 1 answer that question effectively.

Re: [173:5-174:1]

Def Obj 3M MIL No. 26; Assumes 

(611, 403); Prejudice (403)

SUSTAINED

174:2 - 174:18 Zielinski 2020-06-22

 174 2 QUESTIONS BY MR. OVERHOLTZ:

 174 3 Q. Well, you didn't want that,

 174 4 right, as the guy in charge of global

Re: [174:2-174:18]

Def Obj 3M MIL No. 26; 

Argumentative, Assumes (611, 403); 

Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 228 of 303
Zielinski 2020-06-22 43

 174 5 outsource manufacturing?

 174 6 I mean, you didn't want this

 174 7 site that you were responsible for meeting

 174 8 all of these demands of quantity and

 174 9 delivery, you didn't want the -- you didn't

 174 10 want the quantity of delivery to be plugs

 174 11 with cracked stems or put together backwards,

 174 12 right?

 174 13 MS. DE PAULO: Objection.

 174 14 Form.

 174 15 THE WITNESS: Not having the

 174 16 technical knowledge of the impact that

 174 17 would have on the product, I really

 174 18 can't give an opinion on that.

176:3 - 176:21 Zielinski 2020-06-22

 176 3 Q. All right. So is making sure

 176 4 you can deliver the quantity of the plugs to

 176 5 the customer on time ever more important than

 176 6 making sure that the products are quality and

 176 7 are going to work?

 176 8 MS. DE PAULO: Objection.

 176 9 Form.

 176 10 QUESTIONS BY MR. OVERHOLTZ:

 176 11 Q. Is that ever more important?

 176 12 A. Quality is always important.

 176 13 Q. And is quality of the earplugs

 176 14 more important when it comes to military,

 176 15 soldier, safety than just making sure you can

 176 16 deliver the quantity that you need to to

 176 17 satisfy a customer order?

 176 18 MS. DE PAULO: Objection.

 176 19 Form.

 176 20 THE WITNESS: The quality of

 176 21 the product is a top priority.

Re: [176:3-176:21]

Def Obj 3M MIL No. 26; Relevance 

(401, 402); Prejudice (403)

OVERRULED

177:3 - 177:8 Zielinski 2020-06-22

 177 3 Q. Quality of the plugs you're

 177 4 delivering to the US military should be the

 177 5 top priority, right?

 177 6 MS. DE PAULO: Same objection.

Re: [177:3-177:8]

Def Obj 3M MIL No. 26; Relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 229 of 303
Zielinski 2020-06-22 44

 177 7 THE WITNESS: Yes, quality is

 177 8 the top priority.

178:12 - 178:19 Zielinski 2020-06-22

 178 12 When it came to the Combat Arms

 178 13 Earplug, if testing of the ARC machine was

 178 14 made to assure quality of those plugs, then

 178 15 those ARC machines needed to work.

 178 16 MS. DE PAULO: Objection.

 178 17 Form.

 178 18 THE WITNESS: The ARC machines

 178 19 needed to work to perform the tests.

Re: [178:12-178:19]

Def Obj 3M MIL No. 26; Assumes 

(611, 403); Foundation (602)

OVERRULED

179:4 - 179:11 Zielinski 2020-06-22

 179 4 Q. I mean, they needed to be able

 179 5 to work reliably so that you could test

 179 6 100 percent of the plugs, right?

 179 7 MS. DE PAULO: Object to the

 179 8 form.

 179 9 THE WITNESS: Well, they would

 179 10 need to work to be able to test the

 179 11 plugs.

Re: [179:4-179:11]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

179:21 - 179:23 Zielinski 2020-06-22

 179 21 Q. I mean, were the values being

 179 22 spit out by the ARC machine, could they be

 179 23 trusted? That would be important, right?

Re: [179:21-179:23]

Pltf Obj 602, 402, outside scope of 

"clarification"

OVERRULED

179:25 - 180:5 Zielinski 2020-06-22

 179 25 THE WITNESS: Not knowing

 180 1 exactly how the machines functioned

 180 2 and their impact or correlation to the

 180 3 plug, I really can't answer that

 180 4 question. I'm not qualified to answer

 180 5 that question.

Re: [179:25-180:5]

Pltf Obj 602, 402, outside scope of 

"clarification"

OVERRULED

180:18 - 180:22 Zielinski 2020-06-22

 180 18 If the values that the ARC

 180 19 machine was putting out with respect to the

 180 20 Combat Arms plug were not acceptable, not

 180 21 within the range, can you just make some new

 180 22 values or a new range?

Re: [180:18-180:22]

Pltf Obj outside scope of "clarification"

OVERRULED

180:24 - 181:3 Zielinski 2020-06-22

 180 24 THE WITNESS: Our technical

Re: [180:24-181:3]

Pltf Obj outside scope of "clarification"

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 230 of 303
Zielinski 2020-06-22 45

 180 25 group was responsible for determining

 181 1 the ranges and providing that

 181 2 information to TJR. So there was only

 181 3 their area of expertise.

182:12 - 182:20 Zielinski 2020-06-22

 182 12 You understood that these ARC

 182 13 machines that came from Etymotic Research

 182 14 that were used in Mexico had to be calibrated

 182 15 regularly to make sure that they were working

 182 16 reliably, right?

 182 17 MS. DE PAULO: Same objection.

 182 18 THE WITNESS: I recall a

 182 19 document that states that the devices

 182 20 needed to be calibrated.

Re: [182:12-182:20]

Def Obj 3M MIL No. 26; Compound 

(611, 403); Argumentative (611, 403)

OVERRULED

182:21 - 184:15 Zielinski 2020-06-22

 182 21 (Zielinski Exhibit 23 marked

 182 22 for identification.)

 182 23 QUESTIONS BY MR. OVERHOLTZ:

 182 24 Q. All right. Let's look at --

 182 25 Corey, can we go back to the slide set and go

 183 1 to slide 60.

 183 2 And we'll mark RZ-060 as

 183 3 Exhibit 23. This is an August 1, 2001, July

 183 4 monthly report from Elliott Berger to Richard

 183 5 Knauer.

 183 6 And I want to turn your

 183 7 attention to the section related to

 183 8 facilities/equipment/calibration. And you

 183 9 see there's a paragraph about the Etymotic

 183 10 Research parts?

 183 11 Do you see that?

 183 12 A. Yes, I do.

 183 13 Q. And it says, "The one of the

 183 14 two Etymotic Research ARCs used in Mexico was

 183 15 calibrated and returned to Bob Zielinski."

 183 16 Do you see that?

 183 17 A. Yes, I do.

 183 18 Q. Okay. Couple questions about

 183 19 that.

Re: [182:21-184:15]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 231 of 303
Zielinski 2020-06-22 46

 183 20 One is, at this point in time

 183 21 in 2001, there were two ARC machines being

 183 22 used down in Mexico, according to this

 183 23 report, right?

 183 24 A. It would infer that. Says "the

 183 25 one of the two." I'm not exactly sure if

 184 1 it's positive because -- we can infer that

 184 2 from this.

 184 3 Q. Okay. And it says, "The second

 184 4 unit presumably will be sent to us when this

 184 5 unit is returned."

 184 6 Do you see that?

 184 7 A. Yes, I do.

 184 8 Q. So one ARC machine is getting

 184 9 recalibrated, and then you're going to send

 184 10 it back down to Mexico. And when they get

 184 11 that one, they're going to send the other one

 184 12 back to you in Indianapolis for it to be

 184 13 calibrated, right?

 184 14 A. According to this document,

 184 15 presumably that will be returned.

184:16 - 185:14 Zielinski 2020-06-22

 184 16 Q. And so of all those plugs

 184 17 getting put together down in Mexico, you guys

 184 18 are trading off these ARC machines because

 184 19 they have to be calibrated every year, right?

 184 20 MS. DE PAULO: Objection.

 184 21 Form.

 184 22 THE WITNESS: Can you restate

 184 23 that, please? I'm not sure what you

 184 24 mean by "trading off."

 184 25 

 185 1 QUESTIONS BY MR. OVERHOLTZ:

 185 2 Q. All right. So you said, Mexico

 185 3 sends one in to be calibrated, and they're

 185 4 stuck using one machine until they get it

 185 5 back, and then they can send the other

 185 6 machine to be calibrated.

 185 7 So they're down to using one

Re: [184:16-185:14]

Def Obj 3M MIL No. 26; Foundation 

(602); Compound, Assumes (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 232 of 303
Zielinski 2020-06-22 47

 185 8 testing machine while they're making all

 185 9 these earplugs, right?

 185 10 MS. DE PAULO: Objection.

 185 11 Form.

 185 12 THE WITNESS: It would be

 185 13 assuming there are two units there and

 185 14 only two units.

185:15 - 186:9 Zielinski 2020-06-22

 185 15 QUESTIONS BY MR. OVERHOLTZ:

 185 16 Q. Okay. If you can turn to

 185 17 slide -- well, let me ask you this: At some

 185 18 point you became aware that there was a

 185 19 problem with the Combat Arms Earplug in

 185 20 Mexico and the ARC testing being done, right?

 185 21 MS. DE PAULO: Objection.

 185 22 Form.

 185 23 THE WITNESS: I was made aware

 185 24 of a concern that Bob Klun had related

 185 25 to that.

 186 1 QUESTIONS BY MR. OVERHOLTZ:

 186 2 Q. And there was like an

 186 3 80 percent reject rate for the plugs that

 186 4 were getting tested down in Mexico, right?

 186 5 MS. DE PAULO: Objection.

 186 6 Form.

 186 7 THE WITNESS: I'm not sure I

 186 8 see a document to refresh my memory on

 186 9 that.

Re: [185:15-186:9]

Def Obj 3M MIL No. 26; Assumes 

(611, 403); Prejudice (403)

OVERRULED

187:7 - 188:5 Zielinski 2020-06-22

 187 7 (Zielinski Exhibit 24 marked

 187 8 for identification.)

 187 9 QUESTIONS BY MR. OVERHOLTZ:

 187 10 Q. Okay. Let's look at slide 62.

 187 11 And this is P2269 that we'll mark as Exhibit

 187 12 Number 24.

 187 13 And you see that this is a memo

 187 14 from Richard Knauer to Elliott Berger on

 187 15 February 28, 2003, in the E-A-RCAL

 187 16 laboratory.

Re: [187:7-188:5]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 233 of 303
Zielinski 2020-06-22 48

 187 17 Do you see that?

 187 18 A. Yes, I do.

 187 19 Q. And we can see there that

 187 20 Berger is writing to Richard E. Knauer, so

 187 21 Mr. Knauer is the REK, right?

 187 22 A. Correct.

 187 23 Q. And then down at the bottom of

 187 24 this memo under Product-Related Research and

 187 25 Development, it says, "RWK assisted Gordon

 188 1 Grogan and spoke with Bob Zielinski about the

 188 2 problems with the Combat Arms plug in

 188 3 Mexico."

 188 4 Right?

 188 5 A. I see that.

188:6 - 188:9 Zielinski 2020-06-22

 188 6 Q. And that would have been Ronald

 188 7 Kieper, right, the RWK?

 188 8 A. Yes, that's my assumption

 188 9 there, correct.

188:10 - 188:17 Zielinski 2020-06-22

 188 10 Q. So Mr. Kieper talked to you

 188 11 about those problems back in '03 with the ARC

 188 12 machines, right, and the Combat Arms plug?

 188 13 MS. DE PAULO: Objection.

 188 14 Form.

 188 15 THE WITNESS: According to

 188 16 this, he has spoken to me about the

 188 17 Combat Arms plugs in Mexico.

Re: [188:10-188:17]

Def Obj 3M MIL No. 26; Compound 

(611, 403); Prejudice (403)

OVERRULED

188:18 - 188:24 Zielinski 2020-06-22

 188 18 QUESTIONS BY MR. OVERHOLTZ:

 188 19 Q. He recommended that one of the

 188 20 ARCs be sent to Indianapolis so the 100 plugs

 188 21 can be measured in the lab to help determine

 188 22 why Mexico's measurements had an 80 percent

 188 23 reject rate, right?

 188 24 A. I see that.

Re: [188:18-188:24]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (403)

OVERRULED

189:10 - 190:8 Zielinski 2020-06-22

 189 10 There's a problem with the

 189 11 Combat Arms plugs and the measurements being

Re: [189:10-190:8]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 234 of 303
Zielinski 2020-06-22 49

 189 12 made by the ARC machines on those plugs for

 189 13 those plugs being assembled down in Mexico

 189 14 that Aearo is trying to sell, right?

 189 15 MS. DE PAULO: Object to form.

 189 16 THE WITNESS: This does not

 189 17 state there is a problem with the

 189 18 plugs. It states there's an

 189 19 80 percent reject rate in plant.

 189 20 QUESTIONS BY MR. OVERHOLTZ:

 189 21 Q. It says, "RWK spoke with Bob

 189 22 Zielinski about the problems with the Combat

 189 23 Arms plug in Mexico."

 189 24 That's what he said, right?

 189 25 A. That's what he states here,

 190 1 yes.

 190 2 Q. And these ARC machine

 190 3 measurements were resulting in an 80 percent

 190 4 reject rate down in Mexico, right?

 190 5 MS. DE PAULO: Object to form.

 190 6 THE WITNESS: What it states is

 190 7 that 80 percent of the product was

 190 8 being rejected.

190:9 - 190:13 Zielinski 2020-06-22

 190 9 QUESTIONS BY MR. OVERHOLTZ:

 190 10 Q. Based on the measurements on

 190 11 the ARC machine in Mexico, right?

 190 12 A. They were based on the

 190 13 measurements, that's correct.

Re: [190:9-190:13]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

190:14 - 191:17 Zielinski 2020-06-22

 190 14 Q. And that's a major problem when

 190 15 your primary assembler is having an

 190 16 80 percent reject rate. It's going to be

 190 17 hard to deliver the quantity of plugs that

 190 18 you're trying to sell to the US military,

 190 19 right?

 190 20 MS. DE PAULO: Objection.

 190 21 Form.

 190 22 THE WITNESS: As I stated a few

 190 23 minutes ago, it would depend on the

Re: [190:14-191:17]

Def Obj 3M MIL No. 26; 

Argumentative, Assumes (611, 403); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 235 of 303
Zielinski 2020-06-22 50

 190 24 quantity being required at that point

 190 25 in time.

 191 1 QUESTIONS BY MR. OVERHOLTZ:

 191 2 Q. And if testers are being

 191 3 shipped back to Indianapolis, you can't make

 191 4 as many plugs, can you?

 191 5 MS. DE PAULO: Objection.

 191 6 Form.

 191 7 THE WITNESS: They would not be

 191 8 able to produce as many products as

 191 9 they could with two machines.

 191 10 QUESTIONS BY MR. OVERHOLTZ:

 191 11 Q. Right.

 191 12 So you got to solve the

 191 13 problem, right?

 191 14 MS. DE PAULO: Objection.

 191 15 Form.

 191 16 THE WITNESS: The issue needs

 191 17 to be addressed.

191:18 - 192:3 Zielinski 2020-06-22

 191 18 QUESTIONS BY MR. OVERHOLTZ:

 191 19 Q. So you write an e-mail to this

 191 20 Grogan fellow about what to do about this

 191 21 measurement problem on the Mexico Combat

 191 22 Arms, right?

 191 23 MS. DE PAULO: Objection.

 191 24 Form.

 191 25 THE WITNESS: No. As stated

 192 1 here, I spoke to Gordon Grogan. He

 192 2 spoke to me about the alleged problems

 192 3 with the Combat Arms plugs.

Re: [191:18-192:3]

Def Obj 3M MIL No. 26; Prejudice 

(403)

OVERRULED

192:4 - 192:10 Zielinski 2020-06-22

 192 4 QUESTIONS BY MR. OVERHOLTZ:

 192 5 Q. And what was Grogan's job?

 192 6 A. I believe his title was quality

 192 7 technician.

 192 8 Q. Okay. So let's look at this

 192 9 next exhibit, slide 64, and then we'll take a

 192 10 break.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 236 of 303
Zielinski 2020-06-22 51

192:18 - 193:19 Zielinski 2020-06-22

 192 18 (Zielinski Exhibit 25 marked

 192 19 for identification.)

 192 20 QUESTIONS BY MR. OVERHOLTZ:

 192 21 Q. So if we look at slide 64 --

 192 22 we'll mark RZ-175 as Exhibit Number 25, I

 192 23 think.

 192 24 And this is an e-mail that you

 192 25 sent to Grogan on March of 2003, right?

 193 1 A. Yes, that's correct.

 193 2 Q. Okay. And you tell Grogan that

 193 3 "In checking the Combat Arms test equipment,

 193 4 it appears that the Fluke 45 multimeter may

 193 5 have a problem."

 193 6 Do you see that?

 193 7 A. I see that statement.

 193 8 Q. Now you said, maybe that

 193 9 machine needs to be calibrated, right?

 193 10 A. Ron stressed the equipment

 193 11 should be calibrated to make certain.

 193 12 Q. Okay. Then if you go down a

 193 13 little bit further, you say, "I sure hope

 193 14 that solves the problem. We really need to

 193 15 get the tester back to TJR. We have already

 193 16 lost four days, which equals 16,000 pieces,

 193 17 and we're sure to lose at least two more."

 193 18 Right?

 193 19 A. Yes, that's what it says.

Re: [192:18-193:19]

Def Obj 3M MIL No. 26

OVERRULED

194:4 - 194:13 Zielinski 2020-06-22

 194 4 If you can't test the plugs

 194 5 because the tester is getting recalibrated,

 194 6 then you can't spit out the plugs from the

 194 7 assembly line to sell them to the US

 194 8 military.

 194 9 MS. DE PAULO: Objection.

 194 10 Form.

 194 11 THE WITNESS: This doesn't

 194 12 state that they were not able to

 194 13 produce any plugs.

Re: [194:4-194:13]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (602); Assumes (611, 

403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 237 of 303
Zielinski 2020-06-22 52

194:14 - 195:8 Zielinski 2020-06-22

 194 14 QUESTIONS BY MR. OVERHOLTZ:

 194 15 Q. But production was limited,

 194 16 right?

 194 17 A. It was likely -- there were

 194 18 likely to be less that would be produced. I

 194 19 just don't know what the quantity of the

 194 20 vendor was, so I don't know the impact of

 194 21 that.

 194 22 Q. I mean, you say that "once we

 194 23 get it calibrated, we will need to have the

 194 24 plugs tested again immediately to see if the

 194 25 problem was resolved. If so, the equipment

 195 1 needs to be sent back to TJR immediately.

 195 2 There's a truck leaving today at noon, but

 195 3 assuming it won't be ready to ship by then,

 195 4 we can FedEx it to the border to catch up

 195 5 with the truck, and then they will have the

 195 6 tester over the weekend."

 195 7 Right?

 195 8 A. Yes, I see that.

Re: [194:14-195:8]

Def Obj 3M MIL No. 26; Prejudice 

(403)

OVERRULED

195:9 - 195:19 Zielinski 2020-06-22

 195 9 Q. I mean, this is an urgent

 195 10 problem. You can't make these plugs fast

 195 11 enough because the testers are broken, right?

 195 12 MS. DE PAULO: Objection.

 195 13 Form.

 195 14 THE WITNESS: As we discussed,

 195 15 production would have been limited

 195 16 because they were without one tester,

 195 17 and they were not able to produce as

 195 18 many plugs as prior to that. It was

 195 19 important to get it back down there.

Re: [195:9-195:19]

Def Obj 3M MIL No. 26; 

Argumentative, Assumes (611, 403)

OVERRULED

196:4 - 197:11 Zielinski 2020-06-22

 196 4 That's when you say, well, if

 196 5 the calibration doesn't fix the problem, you

 196 6 just run with the wider spec until we can get

 196 7 the 500,000-piece order done.

 196 8 Right?

Re: [196:4-197:11]

Def Obj 3M MIL No. 26; Prejudice 

(403); Argumentative (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 238 of 303
Zielinski 2020-06-22 53

 196 9 MS. DE PAULO: Objection.

 196 10 Form.

 196 11 THE WITNESS: Sorry, I was

 196 12 reading this again. Okay. I see

 196 13 that. I understand.

 196 14 QUESTIONS BY MR. OVERHOLTZ:

 196 15 Q. Okay. So what's actually

 196 16 happening here is while you're getting this

 196 17 testing equipment recalibrated and rechecked,

 196 18 you're running with a wider spec so you can

 196 19 meet a 500,000-piece order, right?

 196 20 MS. DE PAULO: Objection.

 196 21 Form.

 196 22 THE WITNESS: I think the

 196 23 specification would have been provided

 196 24 by the technical group, so they were

 196 25 following the specification provided

 197 1 to them by technical.

 197 2 QUESTIONS BY MR. OVERHOLTZ:

 197 3 Q. Yeah. So technical gave the

 197 4 people down in Mexico a wider spec to use so

 197 5 they could meet a 500,000-piece order, right?

 197 6 MS. DE PAULO: Objection.

 197 7 THE WITNESS: It doesn't

 197 8 state -- sorry. It doesn't state that

 197 9 that specification was provided them

 197 10 specifically to fill the 500,000-piece

 197 11 order.

197:12 - 198:1 Zielinski 2020-06-22

 197 12 QUESTIONS BY MR. OVERHOLTZ:

 197 13 Q. You say, "If we do find that

 197 14 the calibration resolves the problem, we will

 197 15 need to have the others sent back for

 197 16 recalibration, or can we continue to run with

 197 17 the wider spec until we get the 500,000-piece

 197 18 order done?"

 197 19 That's what you said, right?

 197 20 A. That was the question I posed

 197 21 to the technical group.

Re: [197:12-198:1]

Def Obj 3M MIL No. 26; Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 239 of 303
Zielinski 2020-06-22 54

 197 22 Q. "Continue to run with the wider

 197 23 spec until we get the 500,000-piece order

 197 24 done," right?

 197 25 A. That was the question that I

 198 1 asked the group.

198:2 - 198:13 Zielinski 2020-06-22

 198 2 Q. Do you think the US military

 198 3 soldiers deserved earplugs that had better

 198 4 quality assurance than just being run with a

 198 5 wider spec?

 198 6 MS. DE PAULO: Objection.

 198 7 Form.

 198 8 THE WITNESS: The technical

 198 9 group would have been the group

 198 10 responsible for providing the

 198 11 specifications provided to TJR to make

 198 12 sure they were producing the plugs

 198 13 that met their requirements.

Re: [198:2-198:13]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Prejudice 

(403); Relevance (401, 402)

SUSTAINED

199:6 - 199:25 Zielinski 2020-06-22

 199 6 Q. Mr. Zielinski, I wanted to

 199 7 start back, pick up where we left off in

 199 8 March of 2003 when you had e-mailed

 199 9 Mr. Grogan with Exhibit 25 regarding running

 199 10 with a wider spec.

 199 11 So, Corey, if we could pick up

 199 12 there on slide 64, and then I want to move to

 199 13 slide -- so you see there, the wider spec at

 199 14 the bottom of Exhibit 25. If we can go to

 199 15 slide 69, Corey, which is RZ-012, and we'll

 199 16 mark this as Exhibit Number 26.

 199 17 And this is the waiver 351,

 199 18 dated 2/27/2003, so a few days before that

 199 19 e-mail that you sent Mr. Grogan?

 199 20 A. Okay. I see that.

 199 21 Q. And at the top it says,

 199 22 "Request for deviation," and it says, "waiver

 199 23 permission to accept, quote, 'as-is,' quote."

 199 24 That's checked, right?

 199 25 A. Yes, it is.

Re: [199:6-199:25]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 240 of 303
Zielinski 2020-06-22 55

199:26 - 200:1 Zielinski 2020-06-22

 200 1 Q. All right. And that's like

200:1 - 200:11 Zielinski 2020-06-22

 200 1 Q. All right. And that's like

 200 2 when you sell a car and you do a little bill

 200 3 of sales sometime. You say, hey, you're

 200 4 going to take this thing as-is, even if it

 200 5 has problems. Right?

 200 6 MS. DE PAULO: Object to form.

 200 7 QUESTIONS BY MR. OVERHOLTZ:

 200 8 Q. That's what as-is is, right?

 200 9 A. In this context, it's my

 200 10 understanding that the waiver just meant that

 200 11 the product would be accepted as it existed.

Re: [200:1-200:11]

Def Obj 3M MIL No. 26; Prejudice 

(403); Foundation (602)

OVERRULED

200:12 - 200:20 Zielinski 2020-06-22

 200 12 Q. And so this is -- I mean, this

 200 13 is TJR waiver request asking Aearo in

 200 14 Indianapolis for a deviation waiver

 200 15 permission, right?

 200 16 MS. DE PAULO: Objection.

 200 17 Form.

 200 18 THE WITNESS: It's my

 200 19 understanding that this document was

 200 20 generated within Aearo Technologies.

Re: [200:12-200:20]

Def Obj 3M MIL No. 26; Foundation

(602)

OVERRULED

200:21 - 201:16 Zielinski 2020-06-22

 200 21 QUESTIONS BY MR. OVERHOLTZ:

 200 22 Q. Yeah.

 200 23 And this document was never

 200 24 shared with the United States military,

 200 25 right?

 201 1 MS. DE PAULO: Objection.

 201 2 Form.

 201 3 THE WITNESS: I have no idea if

 201 4 it was or was not.

 201 5 QUESTIONS BY MR. OVERHOLTZ:

 201 6 Q. I mean, you weren't asking the

 201 7 military to give you a waiver to make these

 201 8 plugs as-is with their testing. This was

 201 9 just an internal within Aearo and TJR

Re: [200:21-201:16]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Prejudice 

(403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 241 of 303
Zielinski 2020-06-22 56

 201 10 procedure, right?

 201 11 MS. DE PAULO: Objection.

 201 12 Form.

 201 13 THE WITNESS: It was a

 201 14 corporate request that came from our

 201 15 quality department that requested the

 201 16 limits be changed.

203:6 - 203:8 Zielinski 2020-06-22

 203 6 Q. Right. And so then it lists

 203 7 the percent defective as 80 percent, right?

 203 8 A. It does say that, yes.

Re: [203:6-203:8]

Def Obj 3M MIL No. 26

OVERRULED

203:9 - 204:2 Zielinski 2020-06-22

 203 9 Q. Okay. So then underneath that

 203 10 is a discrepancy explanation of need to waive

 203 11 this product, reason for deviating from the

 203 12 process, correct?

 203 13 A. That's what it states, yes.

 203 14 Q. And it says, "Request that the

 203 15 spec range for the Mexico test equipment be

 203 16 increased, both upper and lower limits, by .6

 203 17 millivolts for a temporary time until the

 203 18 test equipment can be tested/calibrated by

 203 19 E-A-R Specialty Composites."

 203 20 Do you see that?

 203 21 A. Yes, I do.

 203 22 Q. Okay. "By increasing range,

 203 23 the test equipment will be comparable to

 203 24 equipment at E-R-A Specialty" -- I think

 203 25 that's supposed to be "E-A-R Specialty

 204 1 Composites," right?

 204 2 A. Yes, that's what it states.

Re: [203:9-204:2]

Pltf Obj outside scope of "clarification"

OVERRULED

204:9 - 206:5 Zielinski 2020-06-22

 204 9 Q. Okay. And this was in February

 204 10 of 2003, right?

 204 11 A. That is the date on the

 204 12 document.

 204 13 (Zielinski Exhibit 27 marked

 204 14 for identification.)

 204 15 QUESTIONS BY MR. OVERHOLTZ:

Re: [204:9-206:5]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 242 of 303
Zielinski 2020-06-22 57

 204 16 Q. Okay. And so then if we can

 204 17 look at the next slide, this is RZ-11, which

 204 18 we'll mark as Exhibit 27.

 204 19 This is an e-mail from Bob Klun

 204 20 to Gordon Grogan, Steve Todor and yourself,

 204 21 as well as Dick Knauer and Bill Bogdan,

 204 22 right?

 204 23 A. Yes, I see that.

 204 24 Q. And this is in May of 2003,

 204 25 right?

 205 1 A. That's what's on the document.

 205 2 Q. All right. And the subject is

 205 3 the "waiver 351 on the Combat Arms filter."

 205 4 That's that waiver request we

 205 5 just looked at, right?

 205 6 MS. DE PAULO: Objection.

 205 7 Form.

 205 8 THE WITNESS: I'm not exactly

 205 9 sure of the number.

 205 10 MR. OVERHOLTZ: Corey, if you

 205 11 could slide back to slide 69.

 205 12 COREY SMITH: Okay.

 205 13 THE WITNESS: I see 351.

 205 14 QUESTIONS BY MR. OVERHOLTZ:

 205 15 Q. Right.

 205 16 So 351, that's the waiver from

 205 17 February of '03 to increase the limits. And

 205 18 then if we go back to slide 70, that's the

 205 19 subject of Bob Klun's e-mail, is this same

 205 20 351 waiver, right?

 205 21 A. It appears to be the case, yes.

 205 22 351 is the one that we just referred to, so

 205 23 that appears to be the case.

 205 24 Q. And Bob Klun, VP, vice

 205 25 president, says, "Gordon, I've talked to Dick

 206 1 Knauer and Steve Todor. Based on their

 206 2 input, I approve this waiver."

 206 3 Right?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 243 of 303
Zielinski 2020-06-22 58

 206 4 A. That is what he states here,

 206 5 yes.

207:13 - 207:18 Zielinski 2020-06-22

 207 13 Q. It's your understanding from

 207 14 this e-mail that you received from Bob Klun

 207 15 that he approved the waiver request 351 from

 207 16 February of 2003, right?

 207 17 A. That is my interpretation of

 207 18 this e-mail.

Re: [207:13-207:18]

Def Obj 3M MIL No. 26

OVERRULED

208:15 - 208:22 Zielinski 2020-06-22

 208 15 Q. Okay. Now, we talked a little

 208 16 bit earlier about the calibration plugs for

 208 17 these devices and the need to have

 208 18 calibration pins installed and the devices be

 208 19 calibrated.

 208 20 If you lose the plugs for

 208 21 calibration, then the testing can't occur; is

 208 22 that right?

Re: [208:15-208:22]

Pltf Obj outside scope of "clarification"

SUSTAINED

208:25 - 209:1 Zielinski 2020-06-22

 208 25 THE WITNESS: I don't believe

 209 1 that to be the case.

Re: [208:25-209:1]

Pltf Obj outside scope of 

"clarification"

SUSTAINED

209:2 - 209:14 Zielinski 2020-06-22

 209 2 (Zielinski Exhibit 28 marked

 209 3 for identification.)

 209 4 QUESTIONS BY MR. OVERHOLTZ:

 209 5 Q. All right. Let's look at

 209 6 slide 66, if we can, Corey.

 209 7 We'll mark this as Exhibit

 209 8 Number 27, I believe -- 28, which is

 209 9 Plaintiff's 2270, P2270.

 209 10 This is a May 4, 2003 e-mail

 209 11 from Ron Kieper to A. Haapapuro at

 209 12 etymotic.com.

 209 13 Do you see that?

 209 14 A. Yes, I do.

Re: [209:2-209:14]

Def Obj 3M MIL No. 26

OVERRULED

210:5 - 211:3 Zielinski 2020-06-22

 210 5 Q. All right. So if we can turn

 210 6 to the second page of this e-mail string, a

 210 7 D. Wilson at Etymotic e-mails Roberto Ramirez

Re: [210:5-211:3]

Pltf Obj 802, outside scope of 

"clarification"

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 244 of 303
Zielinski 2020-06-22 59

 210 8 Blanco at TJR Mexico as well as A. Haapapuro

 210 9 with Etymotic regarding calibration plugs for

 210 10 equipment.

 210 11 Do you see that in the middle

 210 12 of the page?

 210 13 A. Yes, I do.

 210 14 Q. It says, "The box shown in your

 210 15 picture is not a standard product for our

 210 16 company. We occasionally build them for

 210 17 testing purposes. There aren't any standard

 210 18 drawings I can go from to make any more.

 210 19 Judging from the cal numbers on your box, I

 210 20 would assume that the cal plug is nothing

 210 21 more than a solid plug. You could get the

 210 22 same effect from holding your finger over the

 210 23 port. Unfortunately, the person who has made

 210 24 all of these types of boxes in the last ten

 210 25 years is on vacation. I will try to track

 211 1 down more."

 211 2 Do you see that?

 211 3 A. Yes, I do.

211:4 - 212:24 Zielinski 2020-06-22

 211 4 Q. All right. So then if you look

 211 5 at the top of the page, Roberto Ramirez at

 211 6 TJR Mexico sends this e-mail to you and says,

 211 7 "Bob, this is the answer I got from Etymotic.

 211 8 See if you can help me out."

 211 9 Do you see that?

 211 10 A. Yes, I do.

 211 11 Q. Okay. And then if we look back

 211 12 over on the first page at the bottom, on

 211 13 August of 2002 you e-mail Ron Kieper and say,

 211 14 "Ron, can you help us out, please?"

 211 15 Right?

 211 16 A. Yes, I see that.

 211 17 Q. And then if we look up at the

 211 18 top of the page, Ron Kieper responds, and he

 211 19 sends the e-mails directly to A. Haapapuro at

 211 20 Etymotic.

Re: [211:4-212:24]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 245 of 303
Zielinski 2020-06-22 60

 211 21 Do you see that?

 211 22 A. Yes, I do.

 211 23 Q. And he says, "Andy, I assume

 211 24 you returned from your vacation. Welcome

 211 25 back. I've copied all the e-mails I have on

 212 1 this matter so we can be clear what is going

 212 2 on. My understanding. After I calibrated --

 212 3 quote, calibrated, verified that its output

 212 4 was the same as it was two years ago, one of

 212 5 the four acoustic resistance checkers, ARC,

 212 6 that have been made for E-A-R, Aearo, I sent

 212 7 the unit back to Mexico. There are two units

 212 8 in Mexico, one in auditory systems department

 212 9 in Indy, and the original in the E-A-RCAL lab

 212 10 in Indy."

 212 11 Do you see that?

 212 12 A. Yes, I do.

 212 13 Q. "Somehow, the two calibration

 212 14 plugs, blocked tubes, that you made for the

 212 15 two Mexican units were lost. What they want

 212 16 are two plugs that can be used when they set

 212 17 up the two ARCs in Mexico."

 212 18 Do you see that?

 212 19 A. Yes, I do.

 212 20 Q. So the calibration plugs that

 212 21 are needed to calibrate the machines being

 212 22 used in Mexico were lost, right?

 212 23 A. According to this document,

 212 24 those calibration plugs were lost.

212:25 - 213:8 Zielinski 2020-06-22

 212 25 Q. So the ARC machines being used

 213 1 by TJR Mexico weren't even calibrated when

 213 2 you got this waiver to just keep putting out

 213 3 plugs outside of the original required

 213 4 specifications?

 213 5 MS. DE PAULO: Objection.

 213 6 Form.

 213 7 THE WITNESS: I don't believe

 213 8 that to be true. It's not stated.

Re: [212:25-213:8]

Def Obj 3M MIL No. 26; Assumes 

(611, 403); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 246 of 303
Zielinski 2020-06-22 61

214:4 - 216:24 Zielinski 2020-06-22

 214 4 QUESTIONS BY MR. OVERHOLTZ:

 214 5 Q. All right. Let's look back at

 214 6 the original e-mail that set this all off.

 214 7 If we go to the third page on August of 2002.

 214 8 It's an e-mail from Roberto

 214 9 Ramirez at TJR Mex to Don at Etymotic, and he

 214 10 says, "Hi, Don, I'm sending you two photos

 214 11 where you can see the equipment that I'm

 214 12 talking about, and another of an ARC box

 214 13 where we test earplugs and where we put the

 214 14 calibration plug which are lost."

 214 15 Do you see that?

 214 16 A. Yes, I do.

 214 17 Q. That was August of 2002, six

 214 18 months prior to asking for the waiver to make

 214 19 the plugs out of the original specs, right?

 214 20 MS. DE PAULO: Objection.

 214 21 Form.

 214 22 THE WITNESS: I have to go back

 214 23 again to look at the date on that

 214 24 waiver to verify that.

 214 25 

 215 1 QUESTIONS BY MR. OVERHOLTZ:

 215 2 Q. Sure. That's slide 69, Corey.

 215 3 It's 22703.

 215 4 A. Okay. I see that.

 215 5 Q. Okay. So if we go back to this

 215 6 e-mail -- so Roberto Ramirez down at TJR

 215 7 Mexico, in August of '02, is asking, what do

 215 8 they need to do to get new calibration plugs

 215 9 that are lost, and how much it's going to

 215 10 cost, right?

 215 11 MS. DE PAULO: Objection.

 215 12 Form.

 215 13 THE WITNESS: I'm reading here

 215 14 where he would -- he was asking if he

 215 15 can help and -- if you help me, and

 215 16 what would be the procedure as to

Re: [214:4-216:24]

Def Obj 3M MIL No. 26; Prejudice 

(403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 247 of 303
Zielinski 2020-06-22 62

 215 17 follow. He didn't know if he needed

 215 18 information about the equipment and

 215 19 didn't know if he would be able to

 215 20 give him the cost of those plugs.

 215 21 QUESTIONS BY MR. OVERHOLTZ:

 215 22 Q. So this e-mail that then Ron

 215 23 Kieper sends to the -- Haapapuro at Etymotic,

 215 24 letting him know that the plugs had been lost

 215 25 and that he had recalibrated one of the

 216 1 machines that had been made for E-A-R at

 216 2 Aearo and sent it down to Mexico on May 4th

 216 3 of 2003, right?

 216 4 A. That's what this document

 216 5 states.

 216 6 Q. Right.

 216 7 And so then if we go back to

 216 8 slide 70, when Bob Klun approved the waiver,

 216 9 that was three days later, right?

 216 10 MS. DE PAULO: Objection.

 216 11 Form.

 216 12 THE WITNESS: This was approved

 216 13 on May 7th. I agree with that.

 216 14 QUESTIONS BY MR. OVERHOLTZ:

 216 15 Q. That's what the date says on

 216 16 the e-mail, three days after Ron Kieper has

 216 17 figured out that the plugs have been lost and

 216 18 it trying to figure out how to get new ones,

 216 19 right?

 216 20 MS. DE PAULO: Objection.

 216 21 Form.

 216 22 THE WITNESS: If those dates

 216 23 are accurate, that is the case. It

 216 24 would have been three days later.

216:25 - 217:10 Zielinski 2020-06-22

 216 25 (Zielinski Exhibit 29 marked

 217 1 for identification.)

 217 2 QUESTIONS BY MR. OVERHOLTZ:

 217 3 Q. Okay. Let's look at slide 72,

 217 4 if we can, and this is RZ-030. We'll mark

Re: [216:25-217:10]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 248 of 303
Zielinski 2020-06-22 63

 217 5 this as Exhibit Number 29, which is an e-mail

 217 6 from yourself to Brian Myers in response to

 217 7 an e-mail you had received from a Liz Rhodes

 217 8 back in April of '04, beginning of May.

 217 9 Do you see that?

 217 10 A. Yes, I do.

217:17 - 218:5 Zielinski 2020-06-22

 217 17 Q. Okay. If you look with me at

 217 18 the bottom of RZ-30, and I have it clipped up

 217 19 at the top of the left of the screen, Liz

 217 20 Rhodes sent --

 217 21 A. Okay.

 217 22 Q. -- you an e-mail on 4/29/04.

 217 23 "Hi, Bob, Dan Brock phoned

 217 24 requesting a lead time on 50,000 pair of the

 217 25 370-1000."

 218 1 Do you see that?

 218 2 A. Yes, I do.

 218 3 Q. Okay. And the 37-1000 is the

 218 4 Combat Arms plug, right?

 218 5 A. That is my recollection.

Re: [217:17-218:5]

Def Obj 3M MIL No. 26

OVERRULED

218:24 - 219:22 Zielinski 2020-06-22

 218 24 Q. Okay. You respond to this

 218 25 e-mail, copying Brian Myers and Kristen Lane

 219 1 and Liz Rhodes, and you say, "This is what I

 219 2 know so far. That are 15,000 pair in transit

 219 3 to arrive May 6th. They are currently out of

 219 4 adapters, which will arrive to Mexico on 5/8.

 219 5 They will begin production immediately and

 219 6 produce approximately 5,000 pair per day. We

 219 7 should be receiving the product on 5/17 and

 219 8 will receive trucks every two to three days,

 219 9 receiving 10,000 to 15,000 on each truck

 219 10 until all orders are filled."

 219 11 Do you see that?

 219 12 A. Yes, I do.

 219 13 Q. So by May of 2004, there's at

 219 14 least a 50,000 order coming through, and

 219 15 you're having to do everything you can to

Re: [218:24-219:22]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 249 of 303
Zielinski 2020-06-22 64

 219 16 make sure that that production begins and

 219 17 that that order can be fulfilled, right?

 219 18 MS. DE PAULO: Objection.

 219 19 Form.

 219 20 THE WITNESS: As stated in the

 219 21 e-mail, they were requesting lead time

 219 22 on 50,000 pair.

221:2 - 222:18 Zielinski 2020-06-22

 221 2 Q. Okay. So if you can look at

 221 3 slide 76, Corey, which is RZ-33.

 221 4 Ron Kieper sends you an e-mail

 221 5 on July 1st of 2004. And we'll mark this as

 221 6 exhibit -- I think we're at 31 now?

 221 7 And you -- and he says, "Bob, I

 221 8 contacted Andy at Etymotic Research, who made

 221 9 the calibration pins back in '99. He says

 221 10 that getting this request into the queue will

 221 11 take about 30 days."

 221 12 Do you see that?

 221 13 A. Yes, I do.

 221 14 Q. You respond to Ron Kieper on

 221 15 July 1st, and you say -- and the subject is

 221 16 "pin for Combat Arms tester."

 221 17 Do you see that?

 221 18 A. Yes, I do.

 221 19 Q. You say, "Thanks, Ron. 30 days

 221 20 seems like a long time. Hopefully they can

 221 21 come back with something less."

 221 22 Right?

 221 23 A. Yes, that's what I said there.

 221 24 (Zielinski Exhibit 32 marked

 221 25 for identification.)

 222 1 QUESTIONS BY MR. OVERHOLTZ:

 222 2 Q. All right. So then if we can

 222 3 look at the next slide, which is RZ-035,

 222 4 which we'll mark as Exhibit Number 32, you

 222 5 sent an e-mail on July 26, 2004 to Dick

 222 6 Knauer, the subject being "forecast."

 222 7 Do you see that?

Re: [221:2-222:18]

Def Obj 3M MIL No. 26; Relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 250 of 303
Zielinski 2020-06-22 65

 222 8 A. Yes, I do.

 222 9 Q. You say, "Dick, as you can see

 222 10 from the messages, they are continuing to

 222 11 increase the forecast on the Combat Arms

 222 12 plugs."

 222 13 Do you see that?

 222 14 A. Yes, I do.

 222 15 Q. "We have word that we might get

 222 16 an order for over 300,000 pair."

 222 17 Right?

 222 18 A. Yes.

231:4 - 231:22 Zielinski 2020-06-22

 231 4 Q. All right. Let's look at the

 231 5 next slide, slide 81, which is RZ-62.

 231 6 We'll mark this as Exhibit 35.

 231 7 This is an October monthly report dated

 231 8 November 2, 2004, from Elliott Berger to Dick

 231 9 Knauer. And if we look under the

 231 10 Miscellaneous section, there's a paragraph

 231 11 about another ARC number 3.

 231 12 Do you see that?

 231 13 A. Yes, I see the area highlighted

 231 14 there.

 231 15 Q. It says, "Another ARC number 3

 231 16 and its signal generator and digital

 231 17 multimeter came from Mexico to the lab to be

 231 18 calibrated. The generator and DMM were sent

 231 19 to Hayes Instrument Service. The ARC will

 231 20 have to be returned to Etymotic for repairs."

 231 21 Do you see that?

 231 22 A. Yes, I do.

Re: [231:4-231:22]

Def Obj 3M MIL No. 26

OVERRULED

234:25 - 236:19 Zielinski 2020-06-22

 234 25 (Zielinski Exhibit 37 marked

 235 1 for identification.)

 235 2 QUESTIONS BY MR. OVERHOLTZ:

 235 3 Q. If we look at the next slide,

 235 4 83, which is P2271, which we'll mark as

 235 5 Exhibit 37, Ronald Kieper sends an e-mail to

 235 6 several people, including yourself and Dick

Re: [234:25-236:19]

Def Obj 3M MIL No. 26; Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 251 of 303
Zielinski 2020-06-22 66

 235 7 Knauer in Indianapolis and then Rafael

 235 8 Martinez and Selina Ramirez down in Mexico,

 235 9 the subject being "ARC number 3."

 235 10 Do you see that?

 235 11 A. Yes, I do.

 235 12 Q. And Mr. Kieper says,

 235 13 "Greetings. Dick copied me on your recent

 235 14 e-mails."

 235 15 Do you see that?

 235 16 A. Yes, I do.

 235 17 Q. And he says, "Bob Z: They,

 235 18 TJR, cannot get any, quote, 'acceptable,'

 235 19 quote, product from the calibrated tester."

 235 20 Do you remember telling Dick

 235 21 Knauer that TJR cannot get any acceptable

 235 22 product from the calibrated tester back in

 235 23 November of 2004?

 235 24 A. Do I recall that now? Was that

 235 25 your question?

 236 1 Q. Yeah. Yeah.

 236 2 Do you recall letting Dick

 236 3 Knauer know that TJR couldn't get any

 236 4 acceptable product from the calibrated ARC

 236 5 tester?

 236 6 A. Not prior to reading this

 236 7 document, I didn't remember that, no.

 236 8 Q. "They are all too high

 236 9 according to the specs, yet they are good

 236 10 when they test them on the uncalibrated

 236 11 device."

 236 12 Right?

 236 13 A. Yes, that's what it states.

 236 14 Q. "Does this seem possible?

 236 15 Could they have set it up wrong?"

 236 16 That was the question you were

 236 17 asking, right?

 236 18 A. That is what I asked there,

 236 19 yes.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 252 of 303
Zielinski 2020-06-22 67

237:17 - 238:10 Zielinski 2020-06-22

 237 17 Q. So the machine that TJR Mexico

 237 18 is supposed to be using to do quality testing

 237 19 of these plugs to make sure they're effective

 237 20 for protecting soldiers' hearing are having

 237 21 continual problems. All of the measurements

 237 22 are too high, and the results are unreliable

 237 23 by -- and by November of 2004, the problem

 237 24 still isn't fixed. Right?

 237 25 MS. DE PAULO: Objection.

 238 1 Form.

 238 2 THE WITNESS: Depends on how

 238 3 you -- not how I interpret this.

 238 4 QUESTIONS BY MR. OVERHOLTZ:

 238 5 Q. I mean, this isn't good, right?

 238 6 MS. DE PAULO: Objection.

 238 7 Form.

 238 8 THE WITNESS: TJR was raising a

 238 9 concern that they had at that point in

 238 10 time and wanted to get it addressed.

Re: [237:17-238:10]

Def Obj 3M MIL No. 26; 

Argumentative, Compound (611, 403); 

Prejudice (403)

OVERRULED

238:11 - 239:7 Zielinski 2020-06-22

 238 11 QUESTIONS BY MR. OVERHOLTZ:

 238 12 Q. I mean, and it wasn't just TJR.

 238 13 You were raising it, too, right? They can't

 238 14 get any acceptable product.

 238 15 A. But TJR initiated it, and I

 238 16 just passed it on to the technical experts

 238 17 who were subject matter experts in that area.

 238 18 Q. They've asked for at least two

 238 19 different waivers to be able to produce plugs

 238 20 with higher range values than the original

 238 21 desired ranges during this time frame, right?

 238 22 MS. DE PAULO: Objection.

 238 23 Form.

 238 24 THE WITNESS: I can see two

 238 25 other waivers requesting two changes.

 239 1 QUESTIONS BY MR. OVERHOLTZ:

 239 2 Q. I mean, at this point in time,

 239 3 everything is not well down in Mexico, right?

Re: [238:11-239:7]

Def Obj 3M MIL No. 26; Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 253 of 303
Zielinski 2020-06-22 68

 239 4 MS. DE PAULO: Objection.

 239 5 Form.

 239 6 THE WITNESS: I would not agree

 239 7 with that.

239:8 - 240:8 Zielinski 2020-06-22

 239 8 (Zielinski Exhibit 38 marked

 239 9 for identification.)

 239 10 QUESTIONS BY MR. OVERHOLTZ:

 239 11 Q. Well, let's see what happens.

 239 12 Let's go to slide 87, which is

 239 13 P2066 A, November 19, 2004. And this is --

 239 14 we'll mark as Exhibit 38. And this is an

 239 15 e-mail from Bob Klun, the vice president, to

 239 16 Ron Kieper; Dick Knauer, the head of the lab;

 239 17 Larry Power, your boss; Stephen Todor,

 239 18 quality assurance manager; and yourself,

 239 19 right?

 239 20 A. Yes, that's what it states.

 239 21 Q. And the subject is "TJR

 239 22 quality," right?

 239 23 A. That is what it states, yes.

 239 24 Q. It says, "Dear all, please

 239 25 review attached. Plans are for Bob and Ron

 240 1 to travel to TJR next week."

 240 2 Right?

 240 3 A. Yes, that's what it says.

 240 4 Q. Attached you can see the little

 240 5 picture of the Word document there, "Action

 240 6 plan to address quality..."

 240 7 Right?

 240 8 A. Yes, I see that.

Re: [239:8-240:8]

Def Obj 3M MIL No. 26

OVERRULED

240:23 - 240:23 Zielinski 2020-06-22

 240 23 Q. Well, why'd they pick you?

241:1 - 241:14 Zielinski 2020-06-22

 241 1 THE WITNESS: I have no idea.

 241 2 QUESTIONS BY MR. OVERHOLTZ:

 241 3 Q. I mean, you told me you didn't

 241 4 really understand how the plugs worked or why

 241 5 they would be -- why you would do the ARC

Re: [241:1-241:14]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 254 of 303
Zielinski 2020-06-22 69

 241 6 testing to determine whether the plugs worked

 241 7 or not. You said you didn't really know.

 241 8 But they're sending you to

 241 9 Mexico on this subject of TJR quality, right?

 241 10 MS. DE PAULO: Objection.

 241 11 Form.

 241 12 THE WITNESS: They're sending

 241 13 me and Ron Kieper, who was a technical

 241 14 expert.

241:15 - 242:8 Zielinski 2020-06-22

 241 15 (Zielinski Exhibit 39 marked

 241 16 for identification.)

 241 17 QUESTIONS BY MR. OVERHOLTZ:

 241 18 Q. And so let's look at what

 241 19 Mr. Klun attached, which is P2066 B, which is

 241 20 slide 88, which is a November 19, 2004

 241 21 document that was attached to this e-mail.

 241 22 And we see that at the top of

 241 23 the page there is "Quality problems at TJR;

 241 24 action plans to address quality problems."

 241 25 Do you see that?

 242 1 A. I do, but can I request we zoom

 242 2 in slightly on that?

 242 3 Q. Yeah. Let's go to the next

 242 4 slide, which zooms in a little bit, makes it

 242 5 a little easier for us read.

 242 6 See, it says, "Quality problems

 242 7 at TJR" at the top, right?

 242 8 A. Yes, I see that.

Re: [241:15-242:8]

Def Obj 3M MIL No. 26

OVERRULED

242:9 - 242:14 Zielinski 2020-06-22

 242 9 Q. It doesn't say quality is all

 242 10 good at TJR, right?

 242 11 MS. DE PAULO: Objection.

 242 12 Form.

 242 13 THE WITNESS: It does not say

 242 14 that, no.

Re: [242:9-242:14]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403)

OVERRULED

242:15 - 243:8 Zielinski 2020-06-22

 242 15 QUESTIONS BY MR. OVERHOLTZ:

 242 16 Q. Then it says, "Quality issues."

Re: [242:15-243:8]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 255 of 303
Zielinski 2020-06-22 70

 242 17 Right?

 242 18 A. That's what Bob Klun documented

 242 19 here.

 242 20 Q. All right. And it says, "There

 242 21 have been continual problems with test

 242 22 equipment and calibration procedures not

 242 23 being followed at TJR."

 242 24 Did I read that correctly?

 242 25 A. That is what he wrote here,

 243 1 yes.

 243 2 Q. It says, "Test equipment. The

 243 3 machines were due for calibration in May '03

 243 4 as stipulated in the specified operating

 243 5 procedure, but even a year later were not

 243 6 calibrated."

 243 7 Right?

 243 8 A. I do see that.

243:9 - 243:9 Zielinski 2020-06-22

 243 9 Q. I mean, it's hard to calibrate

243:10 - 243:25 Zielinski 2020-06-22

 243 10 something when the plugs are lost, right?

 243 11 MS. DE PAULO: Objection.

 243 12 Form.

 243 13 THE WITNESS: This doesn't

 243 14 state any reason for it not being

 243 15 calibrated.

 243 16 QUESTIONS BY MR. OVERHOLTZ:

 243 17 Q. Yeah, but we saw earlier that

 243 18 they had lost the calibration pins, and the

 243 19 guy at Etymotic was on vacation that they

 243 20 needed him to make some new ones.

 243 21 You recall seeing those

 243 22 documents, right?

 243 23 A. Yes, I do.

 243 24 MS. DE PAULO: Objection.

 243 25 Form.

Re: [243:10-243:25]

Def Obj 3M MIL No. 26; 

Argumentative, Assumes (611, 403); 

Prejudice (403)

OVERRULED

244:1 - 244:10 Zielinski 2020-06-22

 244 1 QUESTIONS BY MR. OVERHOLTZ:

 244 2 Q. It says, "Procedures.

Re: [244:1-244:10]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 256 of 303
Zielinski 2020-06-22 71

 244 3 Calibration procedure not followed."

 244 4 Right?

 244 5 A. That's what it says.

 244 6 Q. Number 2, "We operated under a

 244 7 waiver for over six months because we needed

 244 8 to address backorder issues."

 244 9 Do you see that?

 244 10 A. Yes, I do.

245:9 - 245:10 Zielinski 2020-06-22

 245 9 THE WITNESS: He states in his

 245 10 opinion we had backorder issues.

Re: [245:9-245:10]

Def Obj Relevance (401, 402); 

Incomplete (403)

OVERRULED

245:11 - 245:20 Zielinski 2020-06-22

 245 11 QUESTIONS BY MR. OVERHOLTZ:

 245 12 Q. And the waiver was over six

 245 13 months, right?

 245 14 A. That's what he states here, but

 245 15 I don't know that that's true.

 245 16 Q. Okay. You can't say it's not

 245 17 true, right?

 245 18 A. I can't say either way. I

 245 19 don't have information to substantiate either

 245 20 claim.

Re: [245:11-245:20]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

245:21 - 246:1 Zielinski 2020-06-22

 245 21 Q. And by the way, right now you

 245 22 have no way of saying one way or the other

 245 23 that any of the plugs made during that time

 245 24 period met the acceptable range for testing

 245 25 on the ARC machines that was established,

 246 1 right?

Re: [245:21-246:1]

Pltf Obj non-responsive, speculation, 

outside scope of "clarification"

OVERRULED

246:4 - 246:8 Zielinski 2020-06-22

 246 4 THE WITNESS: I have no reason

 246 5 whatsoever to believe that TJR would

 246 6 produce any product that did not meet

 246 7 the specifications that were provided

 246 8 by the technical group.

Re: [246:4-246:8]

Pltf Obj non-responsive, speculation, 

outside scope of "clarification"

OVERRULED

246:11 - 246:19 Zielinski 2020-06-22

 246 11 QUESTIONS BY MR. OVERHOLTZ:

 246 12 Q. You can't say one way or the

 246 13 other as the outsource manufacturing manager

Re: [246:11-246:19]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Prejudice 

(403); Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 257 of 303
Zielinski 2020-06-22 72

 246 14 that any of the plugs that were put out under

 246 15 this waiver with these uncalibrated machines

 246 16 at TJR met the specifications that were

 246 17 required for the ARC machine testing on the

 246 18 Combat Arms version 2 earplugs that were sold

 246 19 to the United States military, can you?

246:22 - 246:24 Zielinski 2020-06-22

 246 22 THE WITNESS: I have no reason

 246 23 to believe that they would not meet

 246 24 the specifications.

247:7 - 247:15 Zielinski 2020-06-22

 247 7 Q. You were operating under a

 247 8 waiver, the machines weren't calibrated, and

 247 9 they were being shipped out anyway.

 247 10 You can't prove it, right?

 247 11 MS. DE PAULO: Objection.

 247 12 Form.

 247 13 THE WITNESS: At this point, I

 247 14 have no documentation that would

 247 15 support or deny that either way.

Re: [247:7-247:15]

Def Obj 3M MIL No. 26; Prejudice 

(403); Argumentative (611, 403)

OVERRULED

247:16 - 248:12 Zielinski 2020-06-22

 247 16 QUESTIONS BY MR. OVERHOLTZ:

 247 17 Q. Number 3, "Because of equipment

 247 18 measurement problems, TJR continues to

 247 19 operate with a quality waiver."

 247 20 Did I read that right?

 247 21 A. That's what Bob Klun stated

 247 22 there.

 247 23 Q. "With rapidly growing Combat

 247 24 Arms volume, do we have enough equipment

 247 25 available in order to meet testing demands?"

 248 1 That's the question, right?

 248 2 A. Yes, he did ask that question

 248 3 there.

 248 4 Q. And then number 5, "Equipment

 248 5 returned to hearing R&D has shown signs of

 248 6 significant wear and tear. We have to send

 248 7 the equipment out to vendor for repair. Are

 248 8 operators properly trained or and is

Re: [247:16-248:12]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 258 of 303
Zielinski 2020-06-22 73

 248 9 refresher training done?"

 248 10 That's what Bob Klun is asking

 248 11 in this document, right?

 248 12 A. Yes, that was his question.

248:24 - 249:20 Zielinski 2020-06-22

 248 24 Q. Okay. The next section of the

 248 25 memo -- we can go to the next slide,

 249 1 slide 90 -- is the Bob Zielinski role, right?

 249 2 A. Yes, I see that.

 249 3 Q. And it says, "With Ron Kieper,

 249 4 assess whether or not people were properly

 249 5 trained and following the contract ops

 249 6 testing procedures. The best written

 249 7 procedures may still result in

 249 8 misinterpretation of how testing is to be

 249 9 carried out."

 249 10 Do you see that?

 249 11 A. I do see that, yes.

 249 12 Q. And that's what you went down

 249 13 to do, to see if these guys were properly

 249 14 trained down at TJR Mexico and whether they

 249 15 were following the actual written procedures,

 249 16 right?

 249 17 A. My role, as stated there, was

 249 18 to assess whether or not the people were

 249 19 properly trained and following the

 249 20 procedures.

Re: [248:24-249:20]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OVERRULED

252:21 - 253:6 Zielinski 2020-06-22

 252 21 Q. All right. And then if we look

 252 22 at the next part of this memo, there's a

 252 23 section called R&D Quality Position -- on the

 252 24 next slide, Corey -- and it says, "R&D

 252 25 Quality Position: For many reasons, it has

 253 1 taken over six months to address equipment

 253 2 calibration problems for the Combat Arms

 253 3 product. Now we have more quality testing

 253 4 problems and releasing product under waiver."

 253 5 Did I read that right?

 253 6 A. Yes, that's what it states.

Re: [252:21-253:6]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 259 of 303
Zielinski 2020-06-22 74

253:7 - 253:23 Zielinski 2020-06-22

 253 7 Q. I mean, does Aearo or 3M have

 253 8 any documentation that anywhere states that

 253 9 this information regarding the quality

 253 10 position at TJR Mexico was communicated to

 253 11 the United States military at this time in

 253 12 November of 2004?

 253 13 MS. DE PAULO: Objection. Form

 253 14 and foundation.

 253 15 THE WITNESS: I have no idea

 253 16 what communication may have taken

 253 17 place at that point in time.

 253 18 QUESTIONS BY MR. OVERHOLTZ:

 253 19 Q. And you're not aware of any

 253 20 such communication?

 253 21 MS. DE PAULO: Same objection.

 253 22 THE WITNESS: No, I'm not aware

 253 23 of any communication at all, no.

Re: [253:7-253:23]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (403); Relevance (401, 

402)

OVERRULED

253:24 - 254:5 Zielinski 2020-06-22

 253 24 QUESTIONS BY MR. OVERHOLTZ:

 253 25 Q. Okay. It goes on. "We believe

 254 1 this issue is not an acute problem but rather

 254 2 a chronic problem that needs to be fixed

 254 3 now."

 254 4 Right?

 254 5 A. That is what it states, yes.

Re: [253:24-254:5]

Def Obj 3M MIL No. 26

OVERRULED

254:6 - 254:8 Zielinski 2020-06-22

 254 6 Q. I mean, chronic is when

 254 7 something is just persistent. It goes on and

 254 8 on and on, right?

Re: [254:6-254:8]

Pltf Obj 403, non-responsive, outside 

the scope of "clarification"

SUSTAINED

254:11 - 254:13 Zielinski 2020-06-22

 254 11 THE WITNESS: I'm not sure what

 254 12 context he used "chronic" in this

 254 13 document.

Re: [254:11-254:13]

Pltf Obj 403, non-responsive, outside 

the scope of "clarification"

SUSTAINED

254:14 - 254:24 Zielinski 2020-06-22

 254 14 QUESTIONS BY MR. OVERHOLTZ:

 254 15 Q. Okay. "We need team

 254 16 perspective to take a holistic look at the

 254 17 Combat Arms quality program at TJR. We need

Re: [254:14-254:24]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 260 of 303
Zielinski 2020-06-22 75

 254 18 to fix the equipment, ensure people are

 254 19 properly trained and procedures are being

 254 20 followed or modified. A joint visit by Bob

 254 21 and Ron to make a big improvement in our

 254 22 quality program is needed."

 254 23 Right?

 254 24 A. Yeah, I see that.

254:25 - 255:6 Zielinski 2020-06-22

 254 25 Q. So that was the situation as

 255 1 described by Bob Klun in his e-mail on

 255 2 November 2004 and attached document that led

 255 3 to your trip down to Mexico; is that right?

 255 4 A. As stated here, that was the

 255 5 R&D and quality's position or interpretation

 255 6 of the situation.

Re: [254:25-255:6]

Def Obj 3M MIL No. 26; Hearsay (801, 

802); Foundation (602)

SUSTAINED

255:23 - 256:4 Zielinski 2020-06-22

 255 23 Q. All right. So if we can look

 255 24 at slide 98, which is RZ-80, and we'll mark

 255 25 this as Exhibit Number 30 -- 40.

 256 1 This is an e-mail titled TJR

 256 2 Combat Arms visit summary, or memo.

 256 3 Do you see that?

 256 4 A. I see the document, yes.

Re: [255:23-256:4]

Def Obj 3M MIL No. 26

OVERRULED

256:15 - 256:21 Zielinski 2020-06-22

 256 15 If we can look at slide 103,

 256 16 which is the beginning of that document.

 256 17 Kind of blow it up so we can see it.

 256 18 You say, "The visit began on

 256 19 November 22, 2004."

 256 20 Do you see that?

 256 21 A. Yes, I do.

Re: [256:15-256:21]

Def Obj 3M MIL No. 26

OVERRULED

256:22 - 257:24 Zielinski 2020-06-22

 256 22 Q. It says, "The visit began on

 256 23 11/22/04. Ron Kieper set up his equipment

 256 24 and tested plugs that he had previously

 256 25 tested on the same equipment in Indianapolis.

 257 1 When he compared the data obtained from the

 257 2 test at TJR with the results from

 257 3 Indianapolis, the data showed the results at

Re: [256:22-257:24]

Pltf Obj 403, outside scope of 

"clarification"

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 261 of 303
Zielinski 2020-06-22 76

 257 4 TJR to be .5 to 1 millivolts higher there."

 257 5 Do you see that?

 257 6 A. Yes, I do.

 257 7 Q. "Additional tests were

 257 8 performed on individual plugs as well as the

 257 9 equipment to check for variations and output

 257 10 drift."

 257 11 Do you see that?

 257 12 A. Yes, I do.

 257 13 Q. And then under Training you

 257 14 said, "While the tests were being conducted,

 257 15 I looked into the training and quality system

 257 16 supporting this operation. I began by having

 257 17 the two first-shift and two second-shift

 257 18 operators write their names."

 257 19 Why did you do that, have them

 257 20 write their names?

 257 21 A. The purpose of that was to get

 257 22 their names directly from them and then go

 257 23 back and verify the training records were

 257 24 completed.

258:4 - 258:21 Zielinski 2020-06-22

 258 4 Q. Okay. And then if we can go

 258 5 to -- you say at the bottom, "My findings

 258 6 follow." And if we can go to slide 105.

 258 7 You say, "In an attempt to

 258 8 determine the root cause of the shift in

 258 9 results from Indianapolis to TJR in Mexico,

 258 10 we had a brief conference call with Andy

 258 11 Haapapuro from Etymotic."

 258 12 Etymotic's the company that

 258 13 makes the fancy musician earplugs; is that

 258 14 right?

 258 15 MS. DE PAULO: Objection.

 258 16 Form.

 258 17 THE WITNESS: I don't know what

 258 18 other earplugs they manufacture. The

 258 19 purpose of this call with Andy was

Re: [258:4-258:21]

Def Obj 3M MIL No. 26; Relevance 

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

(611, 403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 262 of 303
Zielinski 2020-06-22 77

 258 20 related to the ARC boxes they produced

 258 21 for us.

259:9 - 259:11 Zielinski 2020-06-22

 259 9 Q. And did you ever figure out if

 259 10 it was the weather that was causing these

 259 11 problems down in Mexico?

Re: [259:9-259:11]

Pltf Obj 403, non-responsive, outside 

scope of "clarification"

OVERRULED

259:14 - 259:18 Zielinski 2020-06-22

 259 14 THE WITNESS: It was not my

 259 15 responsibility to figure that out.

 259 16 That information would have been

 259 17 provided to the technical group for

 259 18 their evaluation.

Re: [259:14-259:18]

Pltf Obj 403, non-responsive, outside 

scope of "clarification"

OVERRULED

259:20 - 260:6 Zielinski 2020-06-22

 259 20 Q. Okay. It says, "To be sure the

 259 21 units remain in calibration, TJR agreed to

 259 22 send one up each month for three consecutive

 259 23 months beginning in June of 2005."

 259 24 Do you see that?

 259 25 A. Yes, I do.

 260 1 Q. Now, why were you going to wait

 260 2 until June of 2005 to start doing that

 260 3 instead of getting them calibrated right

 260 4 away?

 260 5 A. I don't remember the reason for

 260 6 the exact date.

Re: [259:20-260:6]

Def Obj 3M MIL No. 26

OVERRULED

260:7 - 260:12 Zielinski 2020-06-22

 260 7 Q. Could it have to do with one of

 260 8 those backorders issues you were trying to

 260 9 fill again?

 260 10 MS. DE PAULO: Objection.

 260 11 Form.

 260 12 THE WITNESS: I don't remember.

Re: [260:7-260:12]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Foundation 

(602)

OVERRULED

263:23 - 264:23 Zielinski 2020-06-22

 263 23 Q. So this is a November 30 of

 263 24 2004 e-mail from Ron Kieper to yourself,

 263 25 Selina Ramirez, Dick Knauer and copying

 264 1 Elliott Berger.

 264 2 Do you see that?

 264 3 A. Yes, I do.

Re: [263:23-264:23]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 263 of 303
Zielinski 2020-06-22 78

 264 4 Q. And Mr. Kieper indicates that

 264 5 he had received 31 Combat Arms plugs and that

 264 6 he -- 11 were measured on number 3 and 20 on

 264 7 number 4 at TJR. And then he measured them

 264 8 on the E-A-RCAL equipment.

 264 9 Do you see that?

 264 10 A. Yes, I do.

 264 11 Q. And he says, "The attached

 264 12 Excel document contains all measurements."

 264 13 Right?

 264 14 A. Yes.

 264 15 Q. And he says, "As you can see

 264 16 from the spreadsheet, one plug from equipment

 264 17 number 3 and five plugs from number 4 which

 264 18 measured out of spec measured in spec on my

 264 19 equipment."

 264 20 Do you see that?

 264 21 A. Yes, I do.

 264 22 (Zielinski Exhibits 41 and 42

 264 23 marked for identification.)

265:4 - 265:23 Zielinski 2020-06-22

 265 4 This RK-408 spreadsheet, you

 265 5 see that there are 1, 2, 3, 4, 5, 6, 7, 8, 9,

 265 6 10, 11 plugs tested on the TJR Box Number 3

 265 7 and then 20 on Box Number 4.

 265 8 Do you see that?

 265 9 A. Yes, I see that in the

 265 10 document. I didn't count every item, but...

 265 11 Q. Right.

 265 12 And so then he shaded the ones

 265 13 that were out of spec.

 265 14 Do you see that?

 265 15 A. I do see that, yes.

 265 16 Q. And so both on the 3 and the 4,

 265 17 there are multiple plugs that tested out of

 265 18 spec both at TJR and at Indianapolis, right?

 265 19 MS. DE PAULO: Objection.

 265 20 Form.

 265 21 THE WITNESS: Well, he has

Re: [265:4-265:23]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 264 of 303
Zielinski 2020-06-22 79

 265 22 several highlighted here that he

 265 23 indicates are out of spec.

266:19 - 267:2 Zielinski 2020-06-22

 266 19 Q. Okay. And of the 11, ten

 266 20 tested out of spec at TJR, right? On the TJR

 266 21 column, right?

 266 22 A. There are ten shaded there,

 266 23 yes.

 266 24 Q. And then nine of those ten were

 266 25 also out of spec in Indianapolis, right?

 267 1 A. According to this document,

 267 2 that's the case.

Re: [266:19-267:2]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

267:3 - 267:23 Zielinski 2020-06-22

 267 3 Q. So even after y'all went down

 267 4 to Mexico and had checked on machines and

 267 5 everything, this wasn't a Mexico testing

 267 6 equipment problem; this was an earplug

 267 7 assembly problem.

 267 8 They're all testing out of

 267 9 spec, in Mexico and in Indianapolis, right?

 267 10 MS. DE PAULO: Objection.

 267 11 Form.

 267 12 THE WITNESS: I don't know that

 267 13 to be the case.

 267 14 QUESTIONS BY MR. OVERHOLTZ:

 267 15 Q. But instead of figuring that

 267 16 out beforehand, you had been shipping out

 267 17 plugs to meet backorders under waivers for at

 267 18 least six months, maybe longer, right?

 267 19 MS. DE PAULO: Objection.

 267 20 Form.

 267 21 THE WITNESS: No, I don't

 267 22 agree. I don't -- you can't draw that

 267 23 conclusion from this.

Re: [267:3-267:23]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (403); Assumes (611, 

403)

OVERRULED

271:24 - 273:7 Zielinski 2020-06-22

 271 24 Instead of figuring out that

 271 25 this wasn't a Mexico testing equipment

 272 1 problem but was in fact an earplug problem,

 272 2 instead, back in '03 and '04, you guys just

Re: [271:24-273:7]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Prejudice 

(403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 265 of 303
Zielinski 2020-06-22 80

 272 3 kept granting waivers to TJR Mexico to

 272 4 distribute the plugs with a higher spec

 272 5 range.

 272 6 MS. DE PAULO: Objection.

 272 7 Form.

 272 8 THE WITNESS: The technical

 272 9 group at Aearo Technologies was

 272 10 responsible for determining what

 272 11 product was -- could be acceptable,

 272 12 what the ranges would be acceptable.

 272 13 I relied on them to determine

 272 14 what those spec should be.

 272 15 QUESTIONS BY MR. OVERHOLTZ:

 272 16 Q. Yeah.

 272 17 And when Bob Klun granted that

 272 18 waiver, he didn't know that most of the plugs

 272 19 that were testing bad in Mexico would also

 272 20 test bad in Indianapolis.

 272 21 MS. DE PAULO: Objection. Form

 272 22 and foundation.

 272 23 THE WITNESS: I don't know what

 272 24 information Mr. Klun had at that point

 272 25 in time to make that decision.

 273 1 QUESTIONS BY MR. OVERHOLTZ:

 273 2 Q. Yeah. Well, one thing we know

 273 3 for sure is the United States military didn't

 273 4 know that was happening, right?

 273 5 MS. DE PAULO: Object to form.

 273 6 THE WITNESS: I don't know that

 273 7 to be the case.

274:2 - 275:11 Zielinski 2020-06-22

 274 2 We can now look and see what

 274 3 happened next. If we can go to slide 109,

 274 4 Corey, which is RZ-016, which we'll mark as

 274 5 Exhibit 43.

 274 6 This is a December 20, 2004

 274 7 e-mail from yourself to Ron Kieper and Dick

 274 8 Knauer, the subject being "the Combat Arms

 274 9 tester."

Re: [274:2-275:11]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 266 of 303
Zielinski 2020-06-22 81

 274 10 Do you see that?

 274 11 A. Yes, I do.

 274 12 Q. And so you say, "Ron, we

 274 13 received a call from the defense department

 274 14 regarding a potential order for 650,000 pair

 274 15 of Combat Arms plugs."

 274 16 Did I get that right?

 274 17 A. Yes, that's correct.

 274 18 Q. "If this happens, we might need

 274 19 to get another test unit up -- test unit set

 274 20 up."

 274 21 Right?

 274 22 A. Yes, correct.

 274 23 Q. "I need to confirm the price

 274 24 and lead time for this."

 274 25 Do you see that?

 275 1 A. Yes, I do.

 275 2 Q. All right. That says, "$2,400

 275 3 sticks in my mind, but I do not know the lead

 275 4 time. Thanks, Bob."

 275 5 Do you see that?

 275 6 A. Yes, I do.

 275 7 Q. Now, that was $2,400 for one of

 275 8 these ARC testing boxes?

 275 9 A. If I recall correctly, that was

 275 10 for the entire setup, which included the ARC

 275 11 box and the meters.

276:7 - 276:21 Zielinski 2020-06-22

 276 7 Q. I mean, we're talking about

 276 8 $2,400 for a machine, a testing machine, to

 276 9 make sure the plugs work right, and you guys

 276 10 had been letting machines just sit there with

 276 11 missing pins for a couple of years at least.

 276 12 MS. DE PAULO: Objection.

 276 13 Form.

 276 14 No question pending.

 276 15 QUESTIONS BY MR. OVERHOLTZ:

 276 16 Q. Do I have those facts right,

 276 17 Mr. Zielinski?

Re: [276:7-276:21]

Def Obj 3M MIL No. 26; Relevance 

(401, 402); Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 267 of 303
Zielinski 2020-06-22 82

 276 18 MS. DE PAULO: Objection.

 276 19 Form.

 276 20 THE WITNESS: Can you repeat

 276 21 that statement now, please?

276:22 - 277:15 Zielinski 2020-06-22

 276 22 QUESTIONS BY MR. OVERHOLTZ:

 276 23 Q. Sure.

 276 24 You guys were worried about

 276 25 whether machines had lost calibration pins.

 277 1 You had to get waivers. Plugs couldn't --

 277 2 machines couldn't be calibrated. You had to

 277 3 ship machines back to Indianapolis or send

 277 4 them to repair. You had to operate under

 277 5 waivers because of these problems, and the

 277 6 whole time you could have just ordered some

 277 7 new machines for $2,400 to make sure the

 277 8 plugs worked effectively for our combat

 277 9 soldiers that were in the field?

 277 10 MS. DE PAULO: Objection.

 277 11 Form.

 277 12 THE WITNESS: Yeah, I don't

 277 13 believe you can draw those conclusions

 277 14 in that statement.

 277 15 QUESTIONS BY MR. OVERHOLTZ:

Re: [276:22-277:15]

Def Obj 3M MIL No. 26; Compound, 

Argumentative, Assumes (611, 403); 

Prejudice (403)

SUSTAINED

279:5 - 279:25 Zielinski 2020-06-22

 279 5 Q. All right. Let's look at the

 279 6 next thing that happened, which is slide 110,

 279 7 which is RZ-411A, which we'll mark as

 279 8 Exhibit 44.

 279 9 This is an e-mail from Larry

 279 10 Power to Liz on December 18th as part of this

 279 11 e-mail chain. And it says, "Liz, please

 279 12 confirm my interpretation of the lead time to

 279 13 fill a 650,000-pair order from the time we

 279 14 receive the order."

 279 15 Do you see that?

 279 16 A. Yes, I do.

 279 17 Q. And under Assembly Production

 279 18 it says, "It is not realistic to get a third

Re: [279:5-279:25]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 268 of 303
Zielinski 2020-06-22 83

 279 19 shift of assembly workers in Mexico. We've

 279 20 tried several times in the past, and it does

 279 21 not work. Infrastructure, transportation

 279 22 issues, et cetera. Therefore, we need to

 279 23 plan for the two shifts with overtime."

 279 24 Do you see that?

 279 25 A. I'll have to read back through

280:1 - 280:3 Zielinski 2020-06-22

 280 1 that. The screen was changing a couple of

 280 2 times there, so can I have a second to read

 280 3 that, please?

280:18 - 281:3 Zielinski 2020-06-22

 280 18 Paragraph number 4 I was

 280 19 directing you to, Assembly Production, about

 280 20 it not being realistic to get a third shift

 280 21 of assembly workers.

 280 22 Do you see that?

 280 23 A. Okay. Yes, I do.

 280 24 Q. It says, "Thus, greater than

 280 25 7,000 pair per day times six equals 42,000

 281 1 pair per week."

 281 2 Right?

 281 3 A. Yes, I see that.

Re: [280:18-281:3]

Def Obj 3M MIL No. 26

OVERRULED

281:4 - 281:19 Zielinski 2020-06-22

 281 4 Q. So, I mean, 42,000 pairs of

 281 5 earplugs per week. I mean, that's making a

 281 6 lot of earplugs, and that's making them fast,

 281 7 right?

 281 8 MS. DE PAULO: Objection.

 281 9 Form.

 281 10 THE WITNESS: That's -- to me,

 281 11 that's an opinion, interpretation,

 281 12 but...

 281 13 QUESTIONS BY MR. OVERHOLTZ:

 281 14 Q. I mean, you guys wanted to make

 281 15 them fast, right, to fill this order?

 281 16 MS. DE PAULO: Objection.

 281 17 Form.

Re: [281:4-281:19]

Def Obj 3M MIL No. 26; Prejudice 

(403); Relevance (401, 402); 

Argumentative, Assumes (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 269 of 303
Zielinski 2020-06-22 84

 281 18 THE WITNESS: We wanted to meet

 281 19 the customer's requirements.

281:20 - 282:20 Zielinski 2020-06-22

 281 20 QUESTIONS BY MR. OVERHOLTZ:

 281 21 Q. Okay. So then it says, "Like

 281 22 we talked about before, 100 percent plug

 281 23 testing after assembly."

 281 24 Right?

 281 25 A. Yes.

 282 1 MS. DE PAULO: Objection.

 282 2 Form.

 282 3 THE WITNESS: Yes.

 282 4 QUESTIONS BY MR. OVERHOLTZ:

 282 5 Q. And then it says, Number 5,

 282 6 "Would have been able to put a few people on

 282 7 third shift at times; therefore, I plan two

 282 8 people to run the testers on third shift to

 282 9 get 9,000 pair per day."

 282 10 Do you see that?

 282 11 A. Yes, I see that.

 282 12 Q. All right. So you're going to

 282 13 stick two people on a third shift running

 282 14 these ARC testers. That's the plan that

 282 15 Larry's laying out here, right?

 282 16 MS. DE PAULO: Objection.

 282 17 Form.

 282 18 THE WITNESS: That's what's

 282 19 stated here in this document from

 282 20 Larry.

Re: [281:20-282:20]

Def Obj 3M MIL No. 26; Relevance 

(401, 402); Foundation (602)

OVERRULED

282:21 - 284:7 Zielinski 2020-06-22

 282 21 QUESTIONS BY MR. OVERHOLTZ:

 282 22 Q. Okay. And then if we look at

 282 23 the next slide, which is RZ-411, it's the

 282 24 continuation of this e-mail.

 282 25 Liz responds on Exhibit 44, and

 283 1 Liz says to you and Larry Power, "Yes,

 283 2 interpretation of lead time is correct."

 283 3 Right?

 283 4 A. Yes, I see that.

Re: [282:21-284:7]

Def Obj 3M MIL No. 26; Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 270 of 303
Zielinski 2020-06-22 85

 283 5 Q. All right. And so by late

 283 6 2004, Aearo is now contemplating what it's

 283 7 going to take to get 650,000 pairs of plugs

 283 8 made within a three, four-month period,

 283 9 making 7 to 9,000 plugs a day, using third

 283 10 shifts to get it done, correct?

 283 11 MS. DE PAULO: Objection.

 283 12 Form.

 283 13 THE WITNESS: I'd have to do

 283 14 all the math related to what you just

 283 15 stated there, so I can't say that for

 283 16 sure without making those

 283 17 calculations.

 283 18 QUESTIONS BY MR. OVERHOLTZ:

 283 19 Q. I mean, that's what it said on

 283 20 that -- back on slide 110, is that between 12

 283 21 and -- whether you make 7,000 a day, which

 283 22 can get you to 15 and a half weeks, or at

 283 23 9,000 a day you can get it done in 12 weeks.

 283 24 That's what the Larry Power calculation of

 283 25 lead time said, right?

 284 1 MS. DE PAULO: Objection.

 284 2 Form.

 284 3 THE WITNESS: I see that there.

 284 4 QUESTIONS BY MR. OVERHOLTZ:

 284 5 Q. That was the math on slide 110,

 284 6 right?

 284 7 A. Yep. Correct. I see that.

284:8 - 286:2 Zielinski 2020-06-22

 284 8 Q. And so when you got these

 284 9 e-mails about trying to make 650,000 pair in

 284 10 the very beginning part of 2005, okay, to

 284 11 fill these orders, did you respond and tell

 284 12 them, hey, Kieper and I just got back from

 284 13 Mexico, and you wouldn't believe the problems

 284 14 we got down there. It's a chronic problem

 284 15 with the testing machines, like Bob Klun

 284 16 wrote about, and Ron has done some testing,

 284 17 and it turns out the plugs, a good percentage

Re: [284:8-286:2]

Def Obj 3M MIL No. 26; 

Argumentative, Compound (611, 403); 

Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 271 of 303
Zielinski 2020-06-22 86

 284 18 of them, are testing bad in Indianapolis as

 284 19 well as Mexico. So I think we need to slow

 284 20 things down and not send all these plugs to

 284 21 the military and try to make them so fast,

 284 22 because we've got to get our quality program

 284 23 under control first?

 284 24 MS. DE PAULO: Objection.

 284 25 Form.

 285 1 THE WITNESS: As stated earlier

 285 2 on in my testimony, I did not have

 285 3 direct communication with the

 285 4 customer, and I do not know what

 285 5 information was provided to them

 285 6 regarding this topic.

 285 7 QUESTIONS BY MR. OVERHOLTZ:

 285 8 Q. Yeah. All you had said, if we

 285 9 look back at slide 109 again on

 285 10 December 20th, is, you told Kieper, hey,

 285 11 maybe we ought to get another test unit set

 285 12 up, right? Spend the $2,400?

 285 13 MS. DE PAULO: Objection.

 285 14 Form.

 285 15 THE WITNESS: I stated that if

 285 16 we get that order, we would -- we

 285 17 might need to set up another test

 285 18 unit.

 285 19 QUESTIONS BY MR. OVERHOLTZ:

 285 20 Q. So what happened next is you

 285 21 guys just kept pushing out the plugs out of

 285 22 TJR Mexico, right?

 285 23 MS. DE PAULO: Objection.

 285 24 Form.

 285 25 THE WITNESS: Can you provide

 286 1 some clarity about what you mean,

 286 2 "pushing out the plugs"?

286:3 - 286:20 Zielinski 2020-06-22

 286 3 (Zielinski Exhibit 45 marked

 286 4 for identification.)

 286 5 QUESTIONS BY MR. OVERHOLTZ:

Re: [286:3-286:20]

Def Obj 3M MIL No. 26; Foundation 

(602); Prejudice (403); Argumentative 

(611, 403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 272 of 303
Zielinski 2020-06-22 87

 286 6 Q. Sure. Let's look at slide

 286 7 number 112, RZ-040, which we'll mark as

 286 8 Exhibit Number 45. This is some pictures

 286 9 that you guys produced to us.

 286 10 This is how -- this is how they

 286 11 came out of TJR Mexico, right?

 286 12 MS. DE PAULO: Objection.

 286 13 Form.

 286 14 QUESTIONS BY MR. OVERHOLTZ:

 286 15 Q. Bag of plugs with a sticker on

 286 16 it that says "assembled in Mexico with US

 286 17 components," put in a box and shipped to

 286 18 Indianapolis, right?

 286 19 A. I am not sure the origin of

 286 20 these pictures.

286:21 - 287:8 Zielinski 2020-06-22

 286 21 Q. Do you remember them having

 286 22 this sticker on them that said, "Assembled in

 286 23 Mexico with US components"?

 286 24 A. I can remember some guidance

 286 25 around that statement, but I don't remember

 287 1 that label specifically.

 287 2 Q. Did you guys make up a sticker

 287 3 that said, "Manufactured under quality

 287 4 labor"?

 287 5 MS. DE PAULO: Objection.

 287 6 Form.

 287 7 THE WITNESS: I don't recall

 287 8 any such label being produced.

Re: [286:21-287:8]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Prejudice 

(403)

SUSTAINED

287:9 - 290:18 Zielinski 2020-06-22

 287 9 QUESTIONS BY MR. OVERHOLTZ:

 287 10 Q. I mean, have you ever shopped

 287 11 at like TJ Maxx and they'll have that sticker

 287 12 on the clothing, or maybe at that Kaufmann's

 287 13 Department Store you used to work for, and it

 287 14 might say, minor defects from manufacturing,

 287 15 and you kind of buy it as-is, those kind of

 287 16 stickers?

 287 17 Did y'all ever put one of those

Re: [287:9-290:18]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Prejudice 

(403); Relevance (401, 402)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 273 of 303
Zielinski 2020-06-22 88

 287 18 kind of stickers on the Combat Arms version 2

 287 19 that got sold to the military?

 287 20 MS. DE PAULO: Objection.

 287 21 Form.

 287 22 THE WITNESS: I don't recall

 287 23 any such label being applied to that

 287 24 product.

 287 25 

 288 1 QUESTIONS BY MR. OVERHOLTZ:

 288 2 Q. I mean, that would have been

 288 3 the right thing to do, right, put a sticker

 288 4 on here that says, distributed under quality

 288 5 labor, quote, as-is, quote, right?

 288 6 MS. DE PAULO: Objection.

 288 7 Form.

 288 8 THE WITNESS: No, I don't agree

 288 9 that was a requirement.

 288 10 QUESTIONS BY MR. OVERHOLTZ:

 288 11 Q. I mean, these problems with the

 288 12 ARC box needing to be recalibrated after this

 288 13 trip to Mexico in late '04, I mean, they just

 288 14 continued for the next couple of years,

 288 15 right?

 288 16 MS. DE PAULO: Objection.

 288 17 Form.

 288 18 THE WITNESS: I don't believe

 288 19 that to be the case.

 288 20 QUESTIONS BY MR. OVERHOLTZ:

 288 21 Q. I mean -- and if you go to the

 288 22 next slide, Corey, 113.

 288 23 From '05 to '07, you

 288 24 continued -- you agree that you continued to

 288 25 manufacture the Combat Arms and distribute

 289 1 them out of TJR Mexico while having to

 289 2 continue to recalibrate these ARC boxes?

 289 3 MS. DE PAULO: Objection.

 289 4 Form.

 289 5 THE WITNESS: Could you repeat

 289 6 that, please?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 274 of 303
Zielinski 2020-06-22 89

 289 7 QUESTIONS BY MR. OVERHOLTZ:

 289 8 Q. Sure.

 289 9 From after -- even after the

 289 10 trip to Mexico in late '04, from 2005

 289 11 forward, do you agree that -- as it says on

 289 12 the screen here that TJR continued to

 289 13 manufacture these Combat Arms version 2 plugs

 289 14 while they still had to keep sending the ARC

 289 15 boxes back to E-A-RCAL for recalibration and

 289 16 maintenance assessment?

 289 17 MS. DE PAULO: Objection.

 289 18 Form.

 289 19 THE WITNESS: No, I'm not aware

 289 20 of that.

 289 21 QUESTIONS BY MR. OVERHOLTZ:

 289 22 Q. I mean, did you hear that when

 289 23 Ron Kieper would do some quality testing of

 289 24 what was coming out of Mexico, that he would

 289 25 get values that were way out of left field on

 290 1 his ARC machines?

 290 2 MS. DE PAULO: Objection.

 290 3 Form.

 290 4 THE WITNESS: No, I did not.

 290 5 I'm not sure what you mean by

 290 6 "way out of left field."

 290 7 QUESTIONS BY MR. OVERHOLTZ:

 290 8 Q. One of the things you and I

 290 9 talked about was the fact that this testing

 290 10 with this ARC machine, it was important to

 290 11 make sure the plugs had been assembled

 290 12 correctly, right?

 290 13 MS. DE PAULO: Objection.

 290 14 Form.

 290 15 THE WITNESS: What we discussed

 290 16 was that the plugs needed to be

 290 17 100 percent tested by that

 290 18 equipment -- using that equipment.

290:19 - 291:7 Zielinski 2020-06-22

 290 19 QUESTIONS BY MR. OVERHOLTZ:

Re: [290:19-291:7]

Def Obj 3M MIL No. 26; 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 275 of 303
Zielinski 2020-06-22 90

 290 20 Q. Right.

 290 21 So if -- let's look at

 290 22 slide 114.

 290 23 If a US soldier were to get a

 290 24 bag of these plugs with them put together and

 290 25 some of them have two yellow ends, some of

 291 1 them only have one end, I mean, that would be

 291 2 in a quality problem in the way they were

 291 3 assembled at TJR, right?

 291 4 MS. DE PAULO: Objection.

 291 5 Form.

 291 6 THE WITNESS: Not necessarily

 291 7 so.

Argumentative (611, 403); Relevance 

(401, 402)

292:9 - 292:14 Zielinski 2020-06-22

 292 9 (Zielinski Exhibit 46 marked

 292 10 for identification.)

 292 11 QUESTIONS BY MR. OVERHOLTZ:

 292 12 Q. All right. So let's go to

 292 13 slide 118 and see what happens, what keeps

 292 14 going on in Mexico in 2005.

Re: [292:9-292:14]

Def Obj 3M MIL No. 26

OVERRULED

292:18 - 293:6 Zielinski 2020-06-22

 292 18 And that is January 3, 2005, and it says,

 292 19 "Upon RWK's return from Mexico."

 292 20 Do you see that?

 292 21 A. Yes, I do.

 292 22 Q. And then the headline there is

 292 23 "Combat Arms production issues."

 292 24 And it says, "Upon RWK's return

 292 25 from Mexico, work continued to resolve

 293 1 testing issues for this product, including a

 293 2 call with Etymotic. And at month's end, we

 293 3 requested to obtain a quote for an additional

 293 4 Z-box."

 293 5 Do you see that?

 293 6 A. Yes, I do.

Re: [292:18-293:6]

Def Obj 3M MIL No. 26

OVERRULED

296:3 - 297:6 Zielinski 2020-06-22

 296 3 Q. Well, let's see what you did

 296 4 next. If we can turn to slide 121, which is

 296 5 RZ-075. And Ron Kieper sends an e-mail to

Re: [296:3-297:6]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 276 of 303
Zielinski 2020-06-22 91

 296 6 Annette Shaver and Steve Todor on

 296 7 February 15, 2005, and we'll mark this as

 296 8 Exhibit Number 47.

 296 9 Do you see that e-mail?

 296 10 A. Yes, I do.

 296 11 Q. And we talked about Steve Todor

 296 12 being in quality.

 296 13 Annette Shaver, was she also in

 296 14 quality?

 296 15 A. Yes, she was.

 296 16 Q. And Kieper said, "Steve and

 296 17 Annette, this e-mail contains an e-mail and

 296 18 Excel file from Mexico. My response to the

 296 19 e-mail, copied to Bob Z and Dick K, and, 3,

 296 20 Bob Z's okay for the change in

 296 21 specification."

 296 22 Do you see that?

 296 23 A. I see that.

 296 24 Q. So do you remember giving an

 296 25 okay to change the specifications again down

 297 1 in Mexico for testing these earplugs?

 297 2 MS. DE PAULO: Objection.

 297 3 Form.

 297 4 THE WITNESS: Oh, I don't

 297 5 recall getting any authorization to

 297 6 make changes to the specification.

297:7 - 297:25 Zielinski 2020-06-22

 297 7 QUESTIONS BY MR. OVERHOLTZ:

 297 8 Q. I mean, if you're -- if

 297 9 you're -- if you're missing the field goals

 297 10 every time, is it okay to just move the

 297 11 goalpost?

 297 12 MS. DE PAULO: Objection.

 297 13 Form.

 297 14 THE WITNESS: I don't

 297 15 understand the relevancy of that to

 297 16 this document.

 297 17 QUESTIONS BY MR. OVERHOLTZ:

 297 18 Q. I mean, when you're playing

Re: [297:7-297:25]

Def Obj 3M MIL No. 26; 

Argumentative (611, 403); Prejudice 

(403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 277 of 303
Zielinski 2020-06-22 92

 297 19 football, they don't just let you move the

 297 20 goalpost because the field goal kicker is

 297 21 shanking a few, right?

 297 22 MS. DE PAULO: Objection.

 297 23 Form.

 297 24 THE WITNESS: Not to my

 297 25 knowledge.

302:19 - 303:8 Zielinski 2020-06-22

 302 19 Q. And then he says, "Does anyone,

 302 20 Dick or Bob, have any objections to changing

 302 21 the acceptance specification? Should anyone

 302 22 else be asked about this matter? Awaiting

 302 23 final approval."

 302 24 Right?

 302 25 A. I see that.

 303 1 Q. And then you respond, right?

 303 2 A. Yes, I do.

 303 3 Q. And you said, "It's okay with

 303 4 me"?

 303 5 A. As long as Dick agrees.

 303 6 Q. "As long as Dick agrees,"

 303 7 right?

 303 8 A. That's what it says, yes.

Re: [302:19-303:8]

Pltf Obj outside scope of "clarification"

SUSTAINED

306:11 - 307:16 Zielinski 2020-06-22

 306 11 This is an e-mail from just one

 306 12 day earlier, from Tim McNamara on

 306 13 February 14, 2005, at 9:22 p.m.

 306 14 Do you see that?

 306 15 A. Yes, I do.

 306 16 Q. And the subject is "The next

 306 17 Combat Arms Earplug order."

 306 18 Do you see it?

 306 19 A. Yes, I do.

 306 20 Q. Okay. And Tim McNamara was

 306 21 someone who worked in the marketing

 306 22 department; is that right?

 306 23 A. I am not sure what Tim's role

 306 24 was.

 306 25 Q. And he sends this e-mail to

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 278 of 303
Zielinski 2020-06-22 93

 307 1 Brian Myers, who was in marketing, along with

 307 2 Gary Warren, right?

 307 3 A. Yes.

 307 4 Q. Larry Power was your boss,

 307 5 right?

 307 6 A. Correct.

 307 7 Q. And then you're listed in the

 307 8 "to" line as well, right?

 307 9 A. Yes, I am.

 307 10 Q. And Marty Salon is listed in

 307 11 the "to" line, right?

 307 12 A. Yes, he is.

 307 13 Q. He's the other marketing guy,

 307 14 right?

 307 15 A. I believe he was in sales and

 307 16 marketing at that time.

308:21 - 309:2 Zielinski 2020-06-22

 308 21 Q. Okay. So we can look at

 308 22 slide 123. And you see the e-mail from Brian

 308 23 Myers down below, and he says, "First, I want

 308 24 to thank all of you for the terrific job you

 308 25 are doing of getting the current Combat Arms

 309 1 order delivered to the US military."

 309 2 Do you see that?

Re: [308:21-309:2]

Def Obj Relevance (401, 402); Hearsay 

(801, 802)

OVERRULED

309:3 - 309:8 Zielinski 2020-06-22

 309 3 A. Yes, I do.

 309 4 Q. "Your efforts are putting us

 309 5 back into good stead with the DSCP."

 309 6 That's that acronym that we

 309 7 talked about earlier, right?

 309 8 A. Yes.

309:9 - 309:17 Zielinski 2020-06-22

 309 9 Q. "And reassuring our contacts

 309 10 that they have indeed done the right thing by

 309 11 sourcing directly from us. Most importantly,

 309 12 though, this product is getting to our troops

 309 13 in Iraq where it is sorely needed by people

 309 14 who are putting enough on the line without

 309 15 having to risk their hearing as well."

Re: [309:9-309:17]

Def Obj Relevance (401, 402); Hearsay 

(801, 802)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 279 of 303
Zielinski 2020-06-22 94

 309 16 Do you see that?

 309 17 A. Yes, I do.

310:3 - 310:11 Zielinski 2020-06-22

 310 3 You agree that those troops in

 310 4 Iraq who are putting enough on the line for

 310 5 us, that they shouldn't have to risk their

 310 6 hearing as well, like Brian Myers stated in

 310 7 this February 14, 2005 e-mail?

 310 8 MS. DE PAULO: Objection.

 310 9 Form.

 310 10 THE WITNESS: Correct. They

 310 11 should not have to risk their hearing.

Re: [310:3-310:11]

Def Obj Relevance (401, 402); 

Argumentative (611, 403); Prejudice 

(403)

OVERRULED

310:12 - 311:9 Zielinski 2020-06-22

 310 12 QUESTIONS BY MR. OVERHOLTZ:

 310 13 Q. I mean, you agree with that?

 310 14 A. I said, correct, I agree they

 310 15 should not have to risk their hearing.

 310 16 Q. Right.

 310 17 So when you got this e-mail

 310 18 thanking you and the whole marketing and

 310 19 quality and contract manufacturing, outsource

 310 20 manufacturing team for meeting these orders,

 310 21 did you respond and say, well, we really

 310 22 can't say whether or not these plugs were

 310 23 effective or not because our testing machines

 310 24 have been broken, the parts have been lost,

 310 25 they haven't been calibrated right, and when

 311 1 we tested the same plugs in Indianapolis,

 311 2 over 25 percent of them tested bad as well on

 311 3 one of our main machines?

 311 4 Did you say anything like that?

 311 5 MS. DE PAULO: Objection.

 311 6 Form.

 311 7 THE WITNESS: I did not make a

 311 8 response like that because I did not

 311 9 believe that to be true.

Re: [310:12-311:9]

Def Obj Relevance (401, 402); 

Prejudice (403); Compound, 

Argumentative (611, 403)

SUSTAINED

311:19 - 312:18 Zielinski 2020-06-22

 311 19 Q. Well, it wasn't good that there

 311 20 were all of these machines, these testing

Re: [311:19-312:18]

Def Obj 3M MIL No. 26; Relevance 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 280 of 303
Zielinski 2020-06-22 95

 311 21 machines, that the pins had been lost, right?

 311 22 That was bad.

 311 23 MS. DE PAULO: Objection.

 311 24 Form.

 311 25 THE WITNESS: That was an

 312 1 opinion by someone. That was

 312 2 addressed.

 312 3 QUESTIONS BY MR. OVERHOLTZ:

 312 4 Q. It wasn't an opinion, right?

 312 5 It was the fact. They had been lost, and you

 312 6 guys were trying to order some more from

 312 7 Etymotic. I mean, let's tell the truth here,

 312 8 right?

 312 9 I mean, you understand that you

 312 10 are under oath, sir, right?

 312 11 A. Yes, I do.

 312 12 Q. And does that -- I just -- I

 312 13 mean, some people that doesn't mean anything

 312 14 to. But does that mean something to you, to

 312 15 be under oath?

 312 16 MS. DE PAULO: Objection.

 312 17 Form.

 312 18 THE WITNESS: Absolutely.

(401, 402); Prejudice (403); 

Argumentative (611, 403)

312:20 - 313:1 Zielinski 2020-06-22

 312 20 Q. Okay. And so when you're

 312 21 answering questions that deal with the safety

 312 22 and health of our United States military

 312 23 soldiers, you don't believe it was an opinion

 312 24 that those calibration pins had been lost.

 312 25 It was a fact that the calibration pins had

 313 1 been lost, right, sir?

Re: [312:20-313:1]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64; 

non-responsive (see objection lines17-

21)

OVERRULED

313:4 - 313:16 Zielinski 2020-06-22

 313 4 THE WITNESS: If I understood

 313 5 your question correctly, you asked

 313 6 several -- you grouped together

 313 7 several different topics in that same

 313 8 question, one of which was a loss of

 313 9 the calibration plugs. There were

 313 10 other statements about equipment not

Re: [313:4-313:16]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64; 

non-responsive (see objection lines17-

21)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 281 of 303
Zielinski 2020-06-22 96

 313 11 working properly, defective plugs and

 313 12 so on, if I remember correctly.

 313 13 The plugs were lost, but I

 313 14 don't agree with everything else that

 313 15 was stated in that -- the statement

 313 16 you made in that at that time.

313:23 - 314:7 Zielinski 2020-06-22

 313 23 Q. You agree that the fact that

 313 24 the testing machines that were being relied

 313 25 upon by the United States military for when

 314 1 they gave these plugs out to soldiers, that

 314 2 the calibration pins had been lost, you agree

 314 3 that was bad?

 314 4 MS. DE PAULO: Objection.

 314 5 Form.

 314 6 THE WITNESS: I agree the

 314 7 calibration plugs were lost.

Re: [313:23-314:7]

Def Obj 3M MIL No. 26; Assumes 

(611, 403); Prejudice (403)

OVERRULED

314:21 - 317:3 Zielinski 2020-06-22

 314 21 Let's see what pressure was on

 314 22 you guys now to ignore all that bad

 314 23 information coming out of Mexico.

 314 24 QUESTIONS BY MR. OVERHOLTZ:

 314 25 Q. All right. You see the

 315 1 paragraph that said, "Having said that"?

 315 2 A. Yes, I do.

 315 3 Q. Second part -- it says, "Having

 315 4 said that, Tim has obtained a bit of advance

 315 5 information on the next DSCP contract which

 315 6 will be out for quote early this week. The

 315 7 contract quantity will be for 10,596 boxes,

 315 8 529,800 pairs, of Combat Arms Earplugs,

 315 9 including the 2 percent overage."

 315 10 So another 500,000-pair order

 315 11 coming through. February of '05, right?

 315 12 A. There's a potential for that

 315 13 order.

 315 14 Q. Okay. And it says it's going

 315 15 to come in this week.

 315 16 He says, "I believe they will

Re: [314:21-317:3]

Def Obj 3M MDL No. 26; Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 282 of 303
Zielinski 2020-06-22 97

 315 17 be looking for delivery to begin on this

 315 18 contract as soon as we have fulfilled the

 315 19 current, which we are current supplying. At

 315 20 our current rate of 400 boxes per week, we

 315 21 are looking at around six months' worth of

 315 22 production, and obviously in this case we

 315 23 will need to continue to supply this product

 315 24 to other distributors as we work to fulfill

 315 25 this upcoming contract. I will get with

 316 1 Marty to determine how much of our capacity

 316 2 we should target to supply the other

 316 3 distributors. I'll review this with Liz and

 316 4 Bob at our meeting tomorrow to plan

 316 5 production accordingly."

 316 6 Do you see that?

 316 7 A. I do see that.

 316 8 Q. And on this e-mail chain, you

 316 9 would have been the Bob, right? Bob

 316 10 Zielinski?

 316 11 A. I would say, yes, I was the

 316 12 Bob.

 316 13 Q. And then he says, "We need to

 316 14 keep the pedal down on production here, and

 316 15 please look for any bottlenecks which are not

 316 16 being addressed and bring these to our

 316 17 attention."

 316 18 Do you see that?

 316 19 A. Yes, I do.

 316 20 Q. Corey, can I get the ELMO for a

 316 21 second?

 316 22 Okay. So we're looking at

 316 23 Brian Myers' e-mail, and he says, "We need to

 316 24 keep the pedal down on production."

 316 25 Do you know what that meant,

 317 1 "keep the pedal down"?

 317 2 A. I can make an interpretation of

 317 3 that, but I'm not exactly sure.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 283 of 303
Zielinski 2020-06-22 98

317:4 - 317:12 Zielinski 2020-06-22

 317 4 Q. I mean, you live in

 317 5 Indianapolis, right? The home of the

 317 6 Indianapolis 500. People in Indianapolis

 317 7 know what it means to keep the pedal down,

 317 8 right? A little Mario Andretti, right?

 317 9 MS. DE PAULO: Objection.

 317 10 Form.

 317 11 THE WITNESS: I understand what

 317 12 it means in terms of racing.

Re: [317:4-317:12]

Def Obj Relevance (401, 402); 

Prejudice (403)

SUSTAINED

317:13 - 318:5 Zielinski 2020-06-22

 317 13 QUESTIONS BY MR. OVERHOLTZ:

 317 14 Q. Sure.

 317 15 And then he says, "Please look

 317 16 out for any bottlenecks which are not being

 317 17 addressed."

 317 18 Right?

 317 19 A. That's what he states there,

 317 20 yes.

 317 21 Q. So bad ARC machines and bad

 317 22 plug measurements, those would be a big

 317 23 bottleneck, right?

 317 24 MS. DE PAULO: Objection.

 317 25 Form.

 318 1 THE WITNESS: Bottlenecks, as I

 318 2 would have interpreted it, would have

 318 3 been constraints in the supply chain

 318 4 that would have reduced the capacity

 318 5 to produce product.

Re: [317:13-318:5]

Def Obj 3M MDL No. 26; Prejudice 

(403); Assumes (611, 403)

OVERRULED

318:18 - 319:2 Zielinski 2020-06-22

 318 18 If the ARC machines aren't

 318 19 working right, and the plugs are coming out

 318 20 with measurements that are outside of spec so

 318 21 they have to be rejected, that could result

 318 22 in a bottleneck, right?

 318 23 MS. DE PAULO: Objection.

 318 24 Form.

 318 25 THE WITNESS: It may or may

Re: [318:18-319:2]

Def Obj 3M MDL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 284 of 303
Zielinski 2020-06-22 99

 319 1 not, depending on the quantity

 319 2 required.

319:20 - 319:23 Zielinski 2020-06-22

 319 20 And you got to keep the pedal

 319 21 down, right?

 319 22 A. That's the terminology that he

 319 23 used there.

Re: [319:20-319:23]

Def Obj 3M MDL No. 26

OVERRULED

319:24 - 320:10 Zielinski 2020-06-22

 319 24 Q. Right.

 319 25 So the very next day,

 320 1 February 15th, Kieper says, "We'll just

 320 2 change the specs on the number 4 to go up to

 320 3 6.4 millivolts."

 320 4 Right?

 320 5 MS. DE PAULO: Objection.

 320 6 Form.

 320 7 THE WITNESS: That e-mail on

 320 8 the 14th states that Ron agreed with

 320 9 acceptable ranges on the ARC plugs --

 320 10 ARC boxes.

Re: [319:24-320:10]

Def Obj 3M MDL No. 26; Misstates 

(611, 403)

OVERRULED

320:11 - 320:17 Zielinski 2020-06-22

 320 11 QUESTIONS BY MR. OVERHOLTZ:

 320 12 Q. Right.

 320 13 And you responded and said,

 320 14 "That's okay by me as long as Dick agrees,"

 320 15 right?

 320 16 A. That is what I said there,

 320 17 correct.

Re: [320:11-320:17]

Def Obj 3M MDL No. 26

OVERRULED

320:18 - 320:23 Zielinski 2020-06-22

 320 18 Q. And so when you change these

 320 19 specs, you get rid of the bottlenecks, right?

 320 20 MS. DE PAULO: Objection.

 320 21 Form.

 320 22 THE WITNESS: That's not how I

 320 23 interpret that, no.

Re: [320:18-320:23]

Def Obj 3M MDL No. 26; Prejudice 

(403); Assumes (611, 403)

OVERRULED

328:13 - 329:12 Zielinski 2020-06-22

 328 13 (Zielinski Exhibit 52 marked

 328 14 for identification.)

 328 15 QUESTIONS BY MR. OVERHOLTZ:

Re: [328:13-329:12]

Def Obj 3M MDL No. 26; Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 285 of 303
Zielinski 2020-06-22 100

 328 16 Q. Okay. Now, if we can look at

 328 17 slide 130, which is RZ-405. This is

 328 18 December 9, 2009, now four years -- over four

 328 19 years after the 2005 big order where you

 328 20 needed to put the pedal down on distribution.

 328 21 This is a Excel spreadsheet

 328 22 regarding an ATM trip accomplishment report

 328 23 that we found in your files.

 328 24 A. Okay.

 328 25 Q. Okay?

 329 1 And if you can see with me,

 329 2 there's a -- there's several topics on this

 329 3 Excel spreadsheet, but if we go about the

 329 4 fifth one down, we come to Combat Arms.

 329 5 Do you see that?

 329 6 A. Yes, I do.

 329 7 Q. It says, "Discuss need to

 329 8 record results of every test. 100 percent

 329 9 testing is required, but recording results in

 329 10 question - A. Shaver to follow up at Indy."

 329 11 Do you see that?

 329 12 A. Yes, I do.

329:13 - 329:18 Zielinski 2020-06-22

 329 13 Q. So after all the issues that

 329 14 we've talked about and the 100 percent

 329 15 testing requirement, by December of 2009 when

 329 16 you take another trip to Mexico, there are

 329 17 still questions about the 100 percent testing

 329 18 going on of the Combat Arms Earplugs?

Re: [329:13-329:18]

Pltf Obj improper clarification 

testimony, outside the scope of PTO 64

OVERRULED

329:21 - 329:24 Zielinski 2020-06-22

 329 21 THE WITNESS: The question is

 329 22 not related to the 100 percent

 329 23 testing. The question is regarding

 329 24 recording the results of the tests.

330:25 - 331:6 Zielinski 2020-06-22

 330 25 I said, as we sit here today,

 331 1 are you aware of any documentation from TJR

 331 2 Mexico, or ATM, as they became known after

 331 3 '06, that will demonstrate that the results

Re: [330:25-331:6]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 286 of 303
Zielinski 2020-06-22 101

 331 4 for this 100 percent testing of the Combat

 331 5 Arms version 2 earplugs was recorded or

 331 6 documented?

331:9 - 331:15 Zielinski 2020-06-22

 331 9 THE WITNESS: I don't

 331 10 personally have any documentation, but

 331 11 I can say that during my visits in --

 331 12 through that trip, in particular, they

 331 13 were definitely recording the results

 331 14 of every plug they tested on a sheet

 331 15 of paper next to the equipment.

Re: [331:9-331:15]

Pltf Obj non-responsive, outside scope 

of "clarification"

OVERRULED

332:23 - 333:7 Zielinski 2020-06-22

 332 23 Q. All right. So if we can look

 332 24 at slide 131, which is RZ-021, and I think

 332 25 this will be Exhibit 52.

 333 1 This shows an org chart for

 333 2 Aearo Technologies Mexico I was able to dig

 333 3 out, with Javier Rodriguez listed as the

 333 4 general manager and then several people

 333 5 listed underneath him?

 333 6 Do you see that?

 333 7 A. Yes, I do.

Re: [332:23-333:7]

Def Obj Relevanc (401, 402); Prejudice 

(403)

OVERRULED

334:18 - 335:1 Zielinski 2020-06-22

 334 18 Q. Okay. And then it has you,

 334 19 Robert Zielinski, manager of contract

 334 20 manufacturing and product supply, reporting

 334 21 directly to Larry Power, correct?

 334 22 A. Yes, it does.

 334 23 Q. And then it shows Javier

 334 24 Rodriguez reporting directly to you as the

 334 25 general manager of ATM; is that right?

 335 1 A. This document does show that.

Re: [334:18-335:1]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

343:7 - 343:18 Zielinski 2020-06-22

 343 7 What if the problem with the

 343 8 plug, with the component part, could affect

 343 9 the way the plugs work and protect hearing?

 343 10 That's something you'd expect to be

 343 11 documented and dealt with down in Mexico?

 343 12 MS. DE PAULO: Same objection.

Re: [343:7-343:18]

Def Obj 3M MDL No. 26; Prejudice 

(403); Compound (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 287 of 303
Zielinski 2020-06-22 102

 343 13 THE WITNESS: I don't believe

 343 14 that the team in Mexico understood

 343 15 exactly how the plugs worked or that

 343 16 any potential problem with the

 343 17 components, what impact it would have

 343 18 on the plug itself, its performance.

343:19 - 344:14 Zielinski 2020-06-22

 343 19 (Zielinski Exhibit 57 marked

 343 20 for identification.)

 343 21 QUESTIONS BY MR. OVERHOLTZ:

 343 22 Q. Okay. Let's look at slide 146

 343 23 for a minute, which is RZ-407B. We'll mark

 343 24 this as Exhibit Number 57.

 343 25 This is a picture of the

 344 1 plastic insert piece, sometimes called the

 344 2 stem or the adapter.

 344 3 Do you see that?

 344 4 A. Yes, I do.

 344 5 Q. Okay. And you see at the top

 344 6 of that plastic insert piece where the filter

 344 7 would go in, there's kind of like a little

 344 8 raised edge over the top?

 344 9 A. I do see something on there.

 344 10 Q. A little flash, sometimes they

 344 11 call it, something like that?

 344 12 A. Yes. I see something on the

 344 13 photograph, but I can't tell for sure what it

 344 14 is.

Re: [343:19-344:14]

Def Obj 3M MDL No. 26

OVERRULED

344:17 - 345:23 Zielinski 2020-06-22

 344 17 (Zielinski Exhibit 58 marked

 344 18 for identification.)

 344 19 QUESTIONS BY MR. OVERHOLTZ:

 344 20 Q. So if you can look with me then

 344 21 at slide 147, which is RZ-023, you see

 344 22 another one of these requests for a deviation

 344 23 from October of 2008.

 344 24 Do you see that?

 344 25 A. I can see it, but it's very

 345 1 small.

Re: [344:17-345:23]

Def Obj 3M MDL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 288 of 303
Zielinski 2020-06-22 103

 345 2 Q. Okay. You see where it says

 345 3 "request for deviation" at the top.

 345 4 "Waiver/permission to accept as-is.

 345 5 Quantity, 100,000 pieces."

 345 6 Right?

 345 7 A. Yes, I can see that.

 345 8 Q. All right. And then under

 345 9 discrepancy it says, "Combat Arms adapter

 345 10 exhibits a small amount of flash on the outer

 345 11 rim of filter insertion opening. The flash

 345 12 does not affect filter insertion or the

 345 13 assembly of the UltraFit plug."

 345 14 Do you see that?

 345 15 A. Yes, I do.

 345 16 Q. "Vendor has 100,000 pieces for

 345 17 labor."

 345 18 Do you see that?

 345 19 A. Yes, I do.

 345 20 Q. Now, the vendor listed here is

 345 21 Reliance Engineering.

 345 22 Do you see that?

 345 23 A. Yes.

345:24 - 346:12 Zielinski 2020-06-22

 345 24 Q. And Reliance Engineering, they

 345 25 were the people that made these plastic

 346 1 insert pieces that we saw on slide 146; is

 346 2 that right?

 346 3 MS. DE PAULO: Objection.

 346 4 Form.

 346 5 THE WITNESS: This document

 346 6 states that Reliance Engineering was

 346 7 the vendor.

 346 8 QUESTIONS BY MR. OVERHOLTZ:

 346 9 Q. Okay. Was there any other

 346 10 vendor for those plastic insert pieces

 346 11 besides Reliance?

 346 12 A. Oh, I can't remember.

Re: [345:24-346:12]

Def Obj 3M MDL No. 26; Foundation 

(602)

OVERRULED

346:13 - 346:21 Zielinski 2020-06-22

 346 13 Q. Okay. As long as they got them

Re: [346:13-346:21]

Def Obj 3M MDL No. 26; 

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 289 of 303
Zielinski 2020-06-22 104

 346 14 down in Mexico and could stick them together

 346 15 and sell them, you were good to go, right?

 346 16 MS. DE PAULO: Objection.

 346 17 Form.

 346 18 THE WITNESS: You asked if I

 346 19 knew any other vendors, and my

 346 20 question {sic} was, I am not aware of

 346 21 any other vendor.

Argumentative (611, 403); Prejudice 

(403)

346:22 - 348:8 Zielinski 2020-06-22

 346 22 QUESTIONS BY MR. OVERHOLTZ:

 346 23 Q. Okay. So let's look at the

 346 24 material review board action section of this

 346 25 waiver, number 672, from October of '08.

 347 1 Under approvals it lists

 347 2 C. King and R. Zielinski, right?

 347 3 A. Yes, it does.

 347 4 Q. And then there's a disapprovals

 347 5 the next day from A. Shaver.

 347 6 That's Annette Shaver, right?

 347 7 A. Right.

 347 8 Q. And Jeffrey Hamer, right?

 347 9 A. Yes.

 347 10 Q. Now, Jeffrey Hamer, he was with

 347 11 3M, right? He had not been with Aearo?

 347 12 MS. DE PAULO: Objection.

 347 13 Form.

 347 14 THE WITNESS: I'm not sure

 347 15 about that. I believe Jeff Hamer was

 347 16 with Aearo.

 347 17 QUESTIONS BY MR. OVERHOLTZ:

 347 18 Q. And was Jeff Hamer -- did he

 347 19 work in Minneapolis?

 347 20 A. No, Jeff Hamer resides in

 347 21 Indianapolis.

 347 22 Q. Okay. And so he and Annette

 347 23 Shaver disapprove of this waiver in 2008.

 347 24 Do you see that?

 347 25 A. Yes, I do.

 348 1 Q. All right. So when it says

Re: [346:22-348:8]

Def Obj 3M MDL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 290 of 303
Zielinski 2020-06-22 105

 348 2 that two people approve it and two people

 348 3 disapprove it, what happened?

 348 4 MS. DE PAULO: Object to form.

 348 5 THE WITNESS: I don't -- I

 348 6 don't know exactly what happened with

 348 7 this waiver at this point. I can't

 348 8 recall.

348:9 - 350:20 Zielinski 2020-06-22

 348 9 (Zielinski Exhibit 59 marked

 348 10 for identification.)

 348 11 QUESTIONS BY MR. OVERHOLTZ:

 348 12 Q. Okay. Well, let's see if we

 348 13 can look at the slide 148, which is RZ-022,

 348 14 and this will be Exhibit Number 58 -- 59.

 348 15 This is an October 23rd e-mail

 348 16 from Annette Shaver to Cathy King and

 348 17 yourself, who had approved the waiver,

 348 18 copying Jeff Hamer and Shane Hildreth.

 348 19 Do you see that?

 348 20 A. I see that. Yes, I do.

 348 21 Q. Okay. "The waiver for the

 348 22 019-1000S Combat Arms adapter has been

 348 23 denied. The flash is too extensive, and

 348 24 there is concern about the flash causing an

 348 25 acoustic leak or affecting attenuation if the

 349 1 flash came off or bent into the hold during

 349 2 assembly."

 349 3 Do you see that?

 349 4 A. Yes, I do.

 349 5 Q. Okay. So I want to go back to

 349 6 slide 144, okay, for a minute.

 349 7 So what Annette was saying in

 349 8 her e-mail is that this -- this discrepancy,

 349 9 this flash on the outside of this component

 349 10 part, that could result in a leak, an

 349 11 acoustic leak, which would affect the way the

 349 12 plugs perform, right?

 349 13 MS. DE PAULO: Objection.

 349 14 Form.

Re: [348:9-350:20]

Def Obj 3M MDL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 291 of 303
Zielinski 2020-06-22 106

 349 15 THE WITNESS: I'd have to go

 349 16 back and read exactly how she stated

 349 17 that.

 349 18 (Zielinski Exhibit 60 marked

 349 19 for identification.)

 349 20 QUESTIONS BY MR. OVERHOLTZ:

 349 21 Q. Okay. So if we look at slide

 349 22 144, which is RZ-403, which we'll mark as

 349 23 Exhibit Number 60, this was a February 27,

 349 24 2007 waiver request, number 584.

 349 25 Do you see that?

 350 1 A. Yes, I do.

 350 2 Q. And again, here was the

 350 3 019-1000S nonlinear UltraFit system, barbed

 350 4 and reversible, just like before, made by

 350 5 Reliance Engineering, this time for

 350 6 170,000 pieces.

 350 7 And it says under Discrepancy,

 350 8 "Combat Arms adapter exhibits a small amount

 350 9 of flash at filter insertion opening.

 350 10 Filters can be installed with no difficulty.

 350 11 Vendor has 170,000 pieces for waiver and has

 350 12 stopped production to have mold repaired to

 350 13 eliminate the flash problem."

 350 14 Do you see that?

 350 15 A. Yes, I do.

 350 16 Q. And this was a waiver at the

 350 17 top there as to -- permission to accept

 350 18 as-is.

 350 19 Do you see that?

 350 20 A. Yes, I do.

350:21 - 351:4 Zielinski 2020-06-22

 350 21 Q. All right. And you were listed

 350 22 as the approving contract party to this

 350 23 waiver a year before the same -- a year and a

 350 24 half before the same waiver was denied by

 350 25 Annette Shaver, right?

 351 1 MS. DE PAULO: Objection.

 351 2 Form.

Re: [350:21-351:4]

Def Obj 3M MDL No. 26; Assumes 

(611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 292 of 303
Zielinski 2020-06-22 107

 351 3 THE WITNESS: I'm not sure

 351 4 where you get that information.

351:5 - 351:14 Zielinski 2020-06-22

 351 5 QUESTIONS BY MR. OVERHOLTZ:

 351 6 Q. Well, this waiver is from

 351 7 2/27/2007, right?

 351 8 A. Yes.

 351 9 Q. And if we look at slide 147,

 351 10 this waiver is in October of 2008, right?

 351 11 A. Yes.

 351 12 Q. Almost a year and eight months

 351 13 later, right?

 351 14 A. That's correct.

Re: [351:5-351:14]

Def Obj 3M MDL No. 26

OVERRULED

351:15 - 352:10 Zielinski 2020-06-22

 351 15 Q. So in February of '07, the

 351 16 little UltraFit plastic insert that holds the

 351 17 filter that had the flash on it, a waiver

 351 18 was -- an as-is waiver was granted for

 351 19 170,000 pieces. But that -- a similar waiver

 351 20 in October of 2008 was denied because it

 351 21 could affect the way the plugs perform,

 351 22 possibly causing an acoustic leak, affecting

 351 23 attenuation.

 351 24 Right?

 351 25 MS. DE PAULO: Objection.

 352 1 Form.

 352 2 THE WITNESS: My understanding

 352 3 is we have two different waivers that

 352 4 are about a year and a half apart, and

 352 5 the second one you're showing was not

 352 6 approved.

 352 7 I don't see the entire review

 352 8 board action on the first -- the other

 352 9 one.

 352 10 QUESTIONS BY MR. OVERHOLTZ:

Re: [351:15-352:10]

Def Obj 3M MDL No. 26; Assumes 

(611, 403); Prejudice (403)

OVERRULED

352:11 - 354:6 Zielinski 2020-06-22

 352 11 Q. So, but the first one was for

 352 12 170,000 pieces, right, from '07?

 352 13 A. Yes, I believe that was the

Re: [352:11-354:6]

Def Obj 3M MDL No. 26; Prejudice 

(403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 293 of 303
Zielinski 2020-06-22 108

 352 14 quantity.

 352 15 Q. And so if this waiver, this

 352 16 as-is waiver, was approved in February of

 352 17 2007, 170,000 earplugs would have been

 352 18 assembled in Mexico with a plastic insert

 352 19 piece -- with a plastic insert piece with

 352 20 that flash on it that could possibly affect

 352 21 attenuation and have acoustical leaks that

 352 22 would affect the performance of the plug.

 352 23 MS. DE PAULO: Objection.

 352 24 Form.

 352 25 THE WITNESS: There's nothing

 353 1 here that states the size of the flash

 353 2 or the specific location of the flash.

 353 3 And the technical group and the

 353 4 quality group would have been the

 353 5 determining parties whether that was

 353 6 approved, ultimately, or not.

 353 7 QUESTIONS BY MR. OVERHOLTZ:

 353 8 Q. So you don't know whether or

 353 9 not those 170,000 pieces with the plastic

 353 10 insert piece with the flash on it made by

 353 11 Reliance Engineering were shipped out under

 353 12 an as-is waiver from TJR Mexico; is that

 353 13 right?

 353 14 MS. DE PAULO: Objection.

 353 15 Form.

 353 16 THE WITNESS: Could you repeat

 353 17 that, please?

 353 18 QUESTIONS BY MR. OVERHOLTZ:

 353 19 Q. Sure.

 353 20 You don't know whether or not

 353 21 those plugs with that plastic insert piece or

 353 22 the flash, 170,000 pieces were shipped out in

 353 23 2007 on an as-is waiver that contained that

 353 24 flash.

 353 25 You don't know one way or the

 354 1 other; is that right?

 354 2 MS. DE PAULO: Objection.

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 294 of 303
Zielinski 2020-06-22 109

 354 3 Form.

 354 4 THE WITNESS: I don't know if

 354 5 that product was ever used in the

 354 6 manufacturing or not.

354:7 - 355:19 Zielinski 2020-06-22

 354 7 MR. OVERHOLTZ: Let's pull up,

 354 8 if we can, Exhibit 60, Corey, the full

 354 9 version on the screen.

 354 10 QUESTIONS BY MR. OVERHOLTZ:

 354 11 Q. You see the 584 waiver from

 354 12 2/27/2007, right?

 354 13 A. Yes, I do.

 354 14 Q. You see the 170,000 pieces,

 354 15 right?

 354 16 A. Yes, I do.

 354 17 Q. And under use as-is, quote,

 354 18 there are four approvals listed, right?

 354 19 A. I can only see two so far.

 354 20 Q. If you could scroll down for

 354 21 me? Yes, right there.

 354 22 There's four --

 354 23 A. Okay.

 354 24 Q. -- approvals, right?

 354 25 A. Yes, there are.

 355 1 Q. All right. So yourself as the

 355 2 contract party on 2/27/07, right?

 355 3 A. Yes.

 355 4 Q. Cathy King from purchasing,

 355 5 right?

 355 6 A. Correct.

 355 7 Q. Dick Knauer from technical,

 355 8 right?

 355 9 A. That's correct.

 355 10 Q. And Steve Todor from quality?

 355 11 A. Correct.

 355 12 Q. So no disapprovals for this

 355 13 waiver of 170,000 Combat Arms adapters that

 355 14 exhibited flash at the filter insertion

 355 15 opening, right?

Re: [354:7-355:19]

Def Obj 3M MDL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 295 of 303
Zielinski 2020-06-22 110

 355 16 MS. DE PAULO: Objection.

 355 17 Form.

 355 18 THE WITNESS: I don't see any

 355 19 disapprovals on this document.

355:20 - 356:13 Zielinski 2020-06-22

 355 20 QUESTIONS BY MR. OVERHOLTZ:

 355 21 Q. Okay. So for a year and a

 355 22 half, Aearo, through TJR Mexico, sent out

 355 23 170,000 earplugs, at least, with defective

 355 24 stems that could potentially cause acoustic

 355 25 leaks and affect performance of the nonlinear

 356 1 end of the Combat Arms version earplug back

 356 2 in 2007, correct?

 356 3 MS. DE PAULO: Objection.

 356 4 Form.

 356 5 THE WITNESS: I don't know that

 356 6 to be the case.

 356 7 QUESTIONS BY MR. OVERHOLTZ:

 356 8 Q. Okay. You certainly don't have

 356 9 any other evidence otherwise, right?

 356 10 MS. DE PAULO: Objection.

 356 11 Form.

 356 12 THE WITNESS: I have no data to

 356 13 support or deny that either way.

Re: [355:20-356:13]

Def Obj 3M MDL No. 26; Assumes 

(611, 403); Prejudice (403)

SUSTAINED

356:24 - 357:7 Zielinski 2020-06-22

 356 24 Q. Did you become aware that Aearo

 356 25 and then 3M wanted to have these Combat Arms

 357 1 plugs assembled by an AbilityOne organization

 357 2 under the government's AbilityOne program?

 357 3 A. I'm not aware of any time there

 357 4 was any consideration to move any of that

 357 5 assembly out of TJR manufacturing, no.

 357 6 (Zielinski Exhibit 61 marked

 357 7 for identification.)

Re: [356:24-357:7]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

360:20 - 360:22 Zielinski 2020-06-22

 360 20 Do you remember a company

 360 21 called New Dynamics?

 360 22 A. Yes.

Re: [360:20-360:22]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 296 of 303
Zielinski 2020-06-22 111

361:1 - 361:21 Zielinski 2020-06-22

 361 1 If you look at number 3, it

 361 2 says, "If you remember" -- well, let's look

 361 3 at number 2.

 361 4 Or number 3.

 361 5 "If you remember this process,

 361 6 we normally assemble the filter with the

 361 7 adapter at the same time. This way is faster

 361 8 than if we try to assemble the filter without

 361 9 the adapter. So I think the best thing is to

 361 10 give you the filter and the adapter already

 361 11 assembled. I do not think blind people would

 361 12 be capable to insert the filter into the

 361 13 adapter. Please confirm me this."

 361 14 Do you see that?

 361 15 A. Yes, I do.

 361 16 Q. And that's the e-mail that

 361 17 you -- that you responded and said, "I'm not

 361 18 sure how the visually impaired people would

 361 19 be able to assemble this correctly."

 361 20 Do you see that?

 361 21 A. Yes.

Re: [361:1-361:21]

Def Obj 3M MDL No. 26

OVERRULED

361:22 - 362:19 Zielinski 2020-06-22

 361 22 Q. Now, was there an advantage

 361 23 that you learned about that Aearo and 3M

 361 24 could get with military sales if they were

 361 25 using one of these companies that uses

 362 1 visually impaired or otherwise disabled

 362 2 people to assemble the products?

 362 3 MS. DE PAULO: Objection.

 362 4 Form.

 362 5 THE WITNESS: What did you mean

 362 6 by "an advantage"?

 362 7 QUESTIONS BY MR. OVERHOLTZ:

 362 8 Q. Yeah. Was there some type of

 362 9 competitive advantage with respect to

 362 10 contracting and exclusive sales if you were

 362 11 selling the product that was assembled

 362 12 through one of these AbilityOne companies

Re: [361:22-362:19]

Def Obj Relevance (401, 402); 

Foundation (602); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 297 of 303
Zielinski 2020-06-22 112

 362 13 that uses disabled or otherwise impaired

 362 14 people for manufacturing the product?

 362 15 Did you hear about that?

 362 16 A. I was not aware of any

 362 17 exclusive contracts. It's my understanding

 362 18 it was just another channel, marketing

 362 19 channel, to sell product.

362:20 - 364:5 Zielinski 2020-06-22

 362 20 Q. Okay. Now, when it comes to

 362 21 putting a together a plug that has a yellow

 362 22 end and a green end, right, like you see on

 362 23 the camera there --

 362 24 A. Yes.

 362 25 Q. -- you kind of got to know

 363 1 which end is which when you're putting them

 363 2 together, right? They don't feel any

 363 3 different.

 363 4 MS. DE PAULO: Objection.

 363 5 Form.

 363 6 THE WITNESS: The assembler

 363 7 should need to be able to

 363 8 differentiate between the two plugs.

 363 9 QUESTIONS BY MR. OVERHOLTZ:

 363 10 Q. All right. So using blind

 363 11 people to put them together, these guys and

 363 12 you were saying, wouldn't be a very good

 363 13 idea, unfortunately, right?

 363 14 MS. DE PAULO: Objection.

 363 15 Form.

 363 16 THE WITNESS: Is that what I

 363 17 stated in the e-mail?

 363 18 QUESTIONS BY MR. OVERHOLTZ:

 363 19 Q. Right. That's what you said.

 363 20 "I don't see how they could," right?

 363 21 So the solution for this Alpha

 363 22 Pointe is, we'll just pull it all together at

 363 23 TJR and then send it to Alpha Pointe to put

 363 24 together at the end, right?

 363 25 MS. DE PAULO: Objection.

Re: [362:20-364:5]

Def Obj 3M MDL No. 26; Relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 298 of 303
Zielinski 2020-06-22 113

 364 1 Form.

 364 2 THE WITNESS: I read in some of

 364 3 the documents here that that was a

 364 4 possibility, but I do not recall that

 364 5 project ever moving forward.

364:6 - 367:21 Zielinski 2020-06-22

 364 6 QUESTIONS BY MR. OVERHOLTZ:

 364 7 Q. Okay. Well, let's go to

 364 8 slide 150, if we can, talk a little bit about

 364 9 New Dynamics.

 364 10 You are familiar with New

 364 11 Dynamics?

 364 12 A. Yes, I am.

 364 13 (Zielinski Exhibit 62 marked

 364 14 for identification.)

 364 15 QUESTIONS BY MR. OVERHOLTZ:

 364 16 Q. Okay. So if we go to the next

 364 17 slide, which is RZ-111, that we'll mark as

 364 18 Exhibit Number 62.

 364 19 3M, by July of 2009, was going

 364 20 to have New Dynamics as the AbilityOne

 364 21 business partner?

 364 22 Did you have that

 364 23 understanding?

 364 24 A. Could you repeat that, please?

 364 25 Q. Sure.

 365 1 3M had decided that they wanted

 365 2 to have New Dynamics as an AbilityOne

 365 3 business partner back in 2009 for selling

 365 4 earplugs.

 365 5 Did you have that

 365 6 understanding?

 365 7 A. At that point in time I didn't

 365 8 know the reasoning for looking at New

 365 9 Dynamics, no.

 365 10 Q. Okay. So if we look here under

 365 11 status update, it says, "Goal is to have New

 365 12 Dynamics as our AbilityOne business partner."

 365 13 And then if we look at Item

Re: [364:6-367:21]

Def Obj Relevance (401, 402); 

Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 299 of 303
Zielinski 2020-06-22 114

 365 14 Number 2, it says, "Protected AbilityOne

 365 15 status gives New Dynamics a competitive

 365 16 advantage to keep others out of this market

 365 17 segment."

 365 18 Do you see that?

 365 19 A. Oh, it's the second one. Let

 365 20 me read that, please.

 365 21 I see that there.

 365 22 Q. It says, "So using New

 365 23 Dynamics, an AbilityOne company, would give a

 365 24 competitive advantage by keeping others out

 365 25 of the market segment."

 366 1 Do you see that?

 366 2 A. It says, "Protected AbilityOne

 366 3 status gives New Dynamics a competitive

 366 4 advantage to keep others out of this market

 366 5 segment."

 366 6 Q. Okay. And if we look at the

 366 7 third bullet point it says, "Protected

 366 8 AbilityOne status allows New Dynamics to sell

 366 9 and distribute product through AbilityOne

 366 10 military base stores, GSA, DLA, and other

 366 11 agencies while shutting out competitors."

 366 12 Do you see that?

 366 13 A. I do see that statement.

 366 14 Q. Now, did you become familiar

 366 15 with what these AbilityOne companies like New

 366 16 Dynamics were?

 366 17 MS. DE PAULO: Objection.

 366 18 Form.

 366 19 THE WITNESS: Can you repeat

 366 20 that?

 366 21 QUESTIONS BY MR. OVERHOLTZ:

 366 22 Q. Did you become familiar with

 366 23 these AbilityOne companies like New Dynamics,

 366 24 now that you were going to be using New

 366 25 Dynamics for final assembly of the Combat

 367 1 Arms Earplugs as part of the outsource

 367 2 contracting?

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 300 of 303
Zielinski 2020-06-22 115

 367 3 MS. DE PAULO: Same objection.

 367 4 THE WITNESS: Can you further

 367 5 clarify what you mean by "become

 367 6 familiar with"?

 367 7 QUESTIONS BY MR. OVERHOLTZ:

 367 8 Q. Yeah.

 367 9 Did you understand what these

 367 10 companies did, what their -- what their role

 367 11 in the process would be and what advantages

 367 12 that would provide to 3M, Aearo, for selling

 367 13 these earplugs as part of the outsource

 367 14 manufacturing that you were managing?

 367 15 MS. DE PAULO: Objection.

 367 16 Form.

 367 17 THE WITNESS: As I stated, I

 367 18 knew that -- I understood it to be

 367 19 another channel for distribution to

 367 20 sell product. That's all I knew about

 367 21 them.

367:22 - 370:10 Zielinski 2020-06-22

 367 22 (Zielinski Exhibit 63 marked

 367 23 for identification.)

 367 24 QUESTIONS BY MR. OVERHOLTZ:

 367 25 Q. Okay. We can look at

 368 1 slide 157, which is RZ-1006. It's from

 368 2 October 2, 2008. We'll mark this as Exhibit

 368 3 Number 63.

 368 4 This PowerPoint on page 6 says

 368 5 that "3M will sell components of the Combat

 368 6 Arms Earplugs and yellow Screws to New

 368 7 Dynamics. ND will source packaging material

 368 8 and carrying case and assemble into retail

 368 9 pack. Product will be cobranded under

 368 10 AbilityOne program."

 368 11 Do you see that?

 368 12 A. Yes, I do.

 368 13 Q. Now, when it came to assembling

 368 14 these Combat Arms by New Dynamics, was it

 368 15 your understanding that TJR would put the

Re: [367:22-370:10]

Def Obj 3M MDL No. 26; Relevance 

(401, 402); Prejudice (403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 301 of 303
Zielinski 2020-06-22 116

 368 16 plugs together almost completely, or

 368 17 completely, and then ship them to New

 368 18 Dynamics for packaging?

 368 19 MS. DE PAULO: Objection.

 368 20 Form.

 368 21 THE WITNESS: My understanding

 368 22 was that TJR would assemble and test

 368 23 the product as they normally would and

 368 24 ship that product in bulk to New

 368 25 Dynamics, who would then package the

 369 1 product for -- in the retail packs.

 369 2 QUESTIONS BY MR. OVERHOLTZ:

 369 3 Q. So New Dynamics was in no way

 369 4 responsible for the testing of these plugs on

 369 5 the ARC machines like we talked about before,

 369 6 right?

 369 7 A. That is correct, they were not.

 369 8 Q. And all of that fell to the

 369 9 assembly processing done at TJR and then

 369 10 Aearo Mexico; is that right?

 369 11 MS. DE PAULO: Objection.

 369 12 Form.

 369 13 THE WITNESS: TJR assembled and

 369 14 tested the products and shipped them

 369 15 to New Dynamics for packaging.

 369 16 QUESTIONS BY MR. OVERHOLTZ:

 369 17 Q. Did you have any interactions

 369 18 with the people over at New Dynamics to

 369 19 making sure that -- that whenever they got

 369 20 these products from TJR that they had the

 369 21 products they needed to package them for

 369 22 Aearo's and 3M's sales?

 369 23 A. I had interactions with the

 369 24 team at New Dynamics.

 369 25 Q. Did you talk to Mr. Pawlowski?

 370 1 A. Yes, that name sounds familiar.

 370 2 Q. Okay. So if Mr. Pawlowski

 370 3 testified that New Dynamics would assemble

 370 4 these earplugs, that wouldn't have been true,

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 302 of 303
Zielinski 2020-06-22 117

 370 5 right?

 370 6 MS. DE PAULO: Objection.

 370 7 Form.

 370 8 THE WITNESS: If they ever

 370 9 assembled those plugs, I was not aware

 370 10 of that.

370:11 - 371:7 Zielinski 2020-06-22

 370 11 QUESTIONS BY MR. OVERHOLTZ:

 370 12 Q. If we can go to slide 163, this

 370 13 is RZ-1040, which is a May 24, 2011 e-mail

 370 14 chain between yourself and Sheila Goodson.

 370 15 Did you know Sheila Goodson?

 370 16 A. Yes, I did.

 370 17 Q. Okay. And what was her

 370 18 responsibility?

 370 19 A. She was a director of quality.

 370 20 Q. Okay.

 370 21 A. In that role.

 370 22 Q. All right. So if we look at

 370 23 this e-mail, she says, "Hi, Bob, I hope your

 370 24 week's going well. My understanding is that

 370 25 all assembly for the blister pack earplugs

 371 1 will continue to be done in Mexico, and all

 371 2 New Dynamics will be doing is packaging."

 371 3 Do you see that?

 371 4 A. Yes, I do.

 371 5 Q. And that was your understanding

 371 6 as well, correct?

 371 7 A. Yes, that's my understanding.

Re: [370:11-371:7]

Def Obj 3M MDL No. 26; Relevance 

(401, 402); Prejudice (403)

OVERRULED

371:8 - 371:11 Zielinski 2020-06-22

 371 8 Q. Okay. So all of that testing

 371 9 that would need to be done with an ARC

 371 10 machine to ensure that the plugs were within

 371 11 spec of the ranges to provide hearing

Re: [371:8-371:11]

Def Obj Relevance (401, 402); 

Prejudice (403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 89-1 Filed 03/18/21 Page 303 of 303