EXHIBIT 1

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 1 of 345
PLAINTIFFS’ AFFIRMATIVE 

DESIGNATIONS

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 2 of 345
Crossley, Cynthia

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 3 of 345
Crossley, Cynthia 2

Designation Objection Rulings

11:7 - 11:9 Crossley, Cynthia

 11 7 Can you please state your full

 11 8 name for the Record?

 11 9 A. Cynthia Melissa Crossley.

11:10 - 11:12 Crossley, Cynthia

 11 10 Q. And where do you live, Ms.

 11 11 Crossley?

 11 12 A. I live in Southside, Alabama.

Re: [11:10-11:12]

Pltf Obj No objection

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

22:16 - 22:18 Crossley, Cynthia

 22 16 Q. Are you familiar with the

 22 17 dual-ended version of the Combat Arms Earplugs?

 22 18 A. Yes.

22:19 - 23:1 Crossley, Cynthia

 22 19 Q. Okay. When did you first become

 22 20 aware of the dual-ended versions of the Combat

 22 21 Arms Earplugs?

 22 22 A. Many years ago.

 22 23 Q. Would you say -- Can you ballpark

 22 24 when that was? Was it prior to 2005, prior to

 22 25 2010?

 23 1 A. It was prior to 2005.

Re: [22:19-23:1]

Pltf Obj No objection

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

24:17 - 24:22 Crossley, Cynthia

 24 17 Q. Did you ever receive any training

 24 18 or instructions on how to use the Combat Arms

 24 19 Earplugs?

 24 20 A. Yeah. I would think I received

 24 21 specific training regarding those just as a

 24 22 matter of knowing how they worked.

25:3 - 25:8 Crossley, Cynthia

 25 3 Q. And who would have provided that

 25 4 training?

 25 5 A. In the general chain of command

 25 6 in the military, that would have come down from

 25 7 the hearing conservation officer within the --

 25 8 at the post I was working at.

Re: [25:3-25:8]

Pltf Obj Improper Clarification Direct 

â Violates PTO # 64; 602

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

25:10 - 25:13 Crossley, Cynthia

 25 10 And would that person have been a

 25 11 -- an employee of the Department of Defense?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 4 of 345
Crossley, Cynthia 3

 25 12 A. That person would have been an

 25 13 active duty hearing conservation officer.

25:20 - 25:23 Crossley, Cynthia

 25 20 The dual-ended version of the

 25 21 Combat Arms Earplug is the only earplug you

 25 22 recall having received special instructions for

 25 23 how to use?

25:25 - 26:9 Crossley, Cynthia

 25 25 A. I -- I received specific training

 26 1 on each type of earplug that we issued. And

 26 2 that was -- I was trained -- I was certified

 26 3 every five years within the Hearing

 26 4 Conservation Program on what the aspects of

 26 5 fitting earplugs were, and that included all

 26 6 the -- all the OSHA-approved earplugs for the

 26 7 military. So about every four or five years,

 26 8 and on a daily basis, practically, as far as

 26 9 fitting.

26:11 - 26:13 Crossley, Cynthia

 26 11 Would you agree that you received

 26 12 considerable instruction and training on how to

 26 13 use hearing protection devices?

Re: [26:11-26:13]

Pltf Obj Plaintiffsâ propose 

withdrawing 26:2-26:9; if Defendants 

withdraw counter.

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

26:15 - 26:19 Crossley, Cynthia

 26 15 A. Yes.

 26 16 Q. And you were recertified in the

 26 17 use of the hearing protection devices every

 26 18 five years; is that correct?

 26 19 A. Yes. Yes.

Re: [26:15-26:19]

Pltf Obj Improper Clarification Direct 

â Violates PTO # 64; 602; Â 611; 

leading; vague; 402; misstates 

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

27:5 - 27:14 Crossley, Cynthia

 27 5 Q. And during the course of your

 27 6 medical practice, you don't recall having

 27 7 discussed the Combat Arms much with soldiers?

 27 8 A. Not much. And I don't recall

 27 9 issuing Combat Arms Ear -- because we worked in

 27 10 concert with the people who were oversighting

 27 11 the Hearing Conservation Program at Fort

 27 12 Benning. But we -- you know, we -- We worked

 27 13 in concert with them, but we didn't necessarily

 27 14 see them every day.

Re: [27:5-27:14]

Pltf Obj Improper Clarification Direct 

â Violates PTO # 64; 602; Â 611; 

leading "..you don't recall having 

discussed the Combat Arms much with 

soldiers?", Strike Nonresponsive - after 

"Not much."

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 5 of 345
Crossley, Cynthia 4

27:15 - 27:18 Crossley, Cynthia

 27 15 Q. Are you familiar with the other

 27 16 versions of the Combat Arms Earplugs, the other

 27 17 versions that aren't the dual-ended?

 27 18 A. No.

34:13 - 34:15 Crossley, Cynthia

 34 13 Q. And approximately what year did

 34 14 you start at Fort Benning?

 34 15 A. May 13, 1991.

34:24 - 35:1 Crossley, Cynthia

 34 24 Q. How long did you work at Fort

 34 25 Benning?

 35 1 A. Twenty-eight years.

35:2 - 35:4 Crossley, Cynthia

 35 2 Q. Okay. And you recently retired?

 35 3 A. Yes.

 35 4 Q. And what year did you retire?

Re: [35:2-35:4]

Pltf Obj No objection

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

35:10 - 36:1 Crossley, Cynthia

 35 10 Q. During the course of your

 35 11 twenty-eight years at Fort Benning, you served

 35 12 as an occupational health nurse during that

 35 13 time?

 35 14 A. Yes.

 35 15 Q. During those twenty-eight years,

 35 16 did you work within the Hearing Conservation

 35 17 Program?

 35 18 A. Yes.

 35 19 Q. And during those twenty-eight

 35 20 years, did you review audiological testing for

 35 21 soldiers?

 35 22 A. Yes.

 35 23 Q. And during those twenty-eight

 35 24 years, did you conduct audiological testing on

 35 25 soldiers?

 36 1 A. Yes.

107:7 - 107:13 Crossley, Cynthia

 107 7 (Whereupon, Exhibit 8 was

 107 8 marked for identification

 107 9 purposes.)

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 6 of 345
Crossley, Cynthia 5

 107 10 Q. I'm going to mark as Exhibit 8.

 107 11 This is a medical record dated October 27,

 107 12 2008. Did you author this medical record?

 107 13 A. Yes.

112:13 - 112:14 Crossley, Cynthia

 112 13 Q. And so what would you have

 112 14 reviewed to arrive at that disposition?

112:16 - 113:5 Crossley, Cynthia

 112 16 A. The hearing test that was done

 112 17 that day.

 112 18 Q. So you would have reviewed the

 112 19 audiogram?

 112 20 A. Yes.

 112 21 Q. And then under discussed, it

 112 22 says: Diagnosis: Medication, treatments,

 112 23 alternatives, potential side effects with

 112 24 patient who indicated understanding.

 112 25 A. Yes.

 113 1 Q. Was this stock language that you

 113 2 used or is this something you sort of had to

 113 3 select based on your actual conversation with

 113 4 Mr. Keefer?

 113 5 A. That's -- I think that's stock.

113:9 - 113:22 Crossley, Cynthia

 113 9 Q. And would that be fifteen minutes

 113 10 you spent with Mr. Keefer?

 113 11 A. Fifteen minutes total between all

 113 12 the providers, face-to-face time.

 113 13 Q. And in a situation like this

 113 14 where Mr. Tubbs was involved, would you have

 113 15 seen Mr. Keefer at all, or is it possible that

 113 16 you never would have talked to Mr. Keefer at

 113 17 all during this visit?

 113 18 A. It's possible I might not have

 113 19 seen him at all; just note that, you know, I

 113 20 would have to look -- I would have to look at

 113 21 everything that concerned that. But it's

 113 22 possible that I would not have seen him.

147:18 - 147:22 Crossley, Cynthia Re: [147:18-147:22]

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 7 of 345
Crossley, Cynthia 6

 147 18 Q. Good afternoon, Ms. Crossley. My

 147 19 name is Brian Barr, I'm the attorney

 147 20 representing Mr. Keefer in this matter.

 147 21 How are you this afternoon?

 147 22 A. I'm well, and I hope you are.

Def Obj Relevance (401, 402); 

Foundation (602)

OVERRULED

151:5 - 151:21 Crossley, Cynthia

 151 5 Q. Now, there's also been

 151 6 significant testimony about in these audiology

 151 7 tests where it indicated that there was, you

 151 8 know, use of a blue Quattros flange. Do you

 151 9 recall all that?

 151 10 A. Yes, sir.

 151 11 Q. You would agree with me that you

 151 12 don't personally have any knowledge of the

 151 13 earplug that Mr. Keefer used while on duty?

 151 14 A. No.

 151 15 Q. You don't know what earplug he

 151 16 was wearing at the firing range, do you?

 151 17 A. No.

 151 18 Q. You don't know what earplug he

 151 19 was wearing when he was deployed in Iraq, do

 151 20 you?

 151 21 A. No.

151:22 - 152:1 Crossley, Cynthia

 151 22 Q. You wouldn't have any basis to

 151 23 disagree with Mr. Keefer's testimony that he

 151 24 wore the Combat Arms Version 2 Earplug, would

 151 25 you?

 152 1 A. No.

Re: [151:22-152:1]

Def Obj Foundation (602)

OVERRULED

163:14 - 163:16 Crossley, Cynthia

 163 14 Q. Okay. Let me show you -- I'm

 163 15 going to show you the deposition testimony of

 163 16 Lieutenant Commander John Merkley.

Re: [163:14-163:16]

Def Obj Relevance (401, 402); 403; 

Foundation (602) OVERRULED

163:20 - 163:22 Crossley, Cynthia

 163 20 (Whereupon, Exhibit 14 was

 163 21 marked for identification

 163 22 purposes.)

Re: [163:20-163:22]

Def Obj Relevance (401, 402); 403; 

Foundation (602) OVERRULED

164:4 - 164:18 Crossley, Cynthia

 164 4 Q. You see I'm looking at page

Re: [164:4-164:18]

Def Obj Relevance (401, 402); 403; 

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 8 of 345
Crossley, Cynthia 7

 164 5 eight, line 7. Okay? Are you with me?

 164 6 A. Where he says: Good morning,

 164 7 Lieutenant Colonel Merkley?

 164 8 Q. Yes, ma'am.

 164 9 A. I'm there.

 164 10 Q. Good morning, Lieutenant Colonel

 164 11 Merkley. My name is Nick Wasden, and I

 164 12 represent the 3M Company in this case. You

 164 13 serve as the Army Hearing Division chief at the

 164 14 Army Public Health Center in Aberdeen,

 164 15 Maryland; is that right? Answer: I'm the Army

 164 16 Hearing Program manager.

 164 17 Did I read that right?

 164 18 A. Yes.

Foundation (602)

OVERRULED

164:19 - 164:23 Crossley, Cynthia

 164 19 Q. And you accept that that is

 164 20 Lieutenant Colonel Merkley's deposition;

 164 21 correct?

 164 22 MR. GUNDERSON: Objection.

 164 23 A. According to this.

Re: [164:19-164:23]

Def Obj Relevance (401, 402); 403; 

Foundation (602) OVERRULED

164:23 - 165:8 Crossley, Cynthia

 164 23 A. According to this.

 164 24 MR. BARR: Let's go to page 206.

 164 25 Okay. 206. That's 7.

 165 1 Q. Okay. Do you see the little --

 165 2 It starts, whereupon Merkley Deposition Exhibit

 165 3 18, DD2216. Do you see that?

 165 4 A. Yes.

 165 5 Q. The DD2216 form is the same form

 165 6 we've been talking about -- we've looked at

 165 7 several of those for Mr. Keefer today; right?

 165 8 A. Yes.

Re: [164:23-165:8]

Def Obj Relevance (401, 402); 403; 

Foundation (602)

OVERRULED

165:9 - 165:21 Crossley, Cynthia

 165 9 Q. And it says: I just want to

 165 10 basically understand what the box is used for.

 165 11 But do you see the box on this particular

 165 12 DD2216 that lists the type of hearing

 165 13 protection used? Answer: Yes.

 165 14 There are a variety of options

Re: [165:9-165:21]

Def Obj Relevance (401, 402); 403; 

Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 9 of 345
Crossley, Cynthia 8

 165 15 that could be filled in; right? And he nods

 165 16 his head yes.

 165 17 Who fills in that box? Continue.

 165 18 Generally, it's the technician that completes

 165 19 the test.

 165 20 You agree with that; correct?

 165 21 A. Yes.

165:22 - 166:13 Crossley, Cynthia

 165 22 Q. Where do they get the information

 165 23 on the type of hearing protector that was used?

 165 24 Well, there's an intake form. If -- Depending

 165 25 on the clinic, the clinics have their own

 166 1 versions of an intake form, and the soldier,

 166 2 whoever is coming in for the hearing test, fill

 166 3 out all the demographic information. And so

 166 4 they'll -- and answer questions about the

 166 5 hearing protection. Now, they may fill it out

 166 6 based on what type of hearing protector they

 166 7 fitted that day if the individual was fitted

 166 8 with a hearing protector on the date of the

 166 9 exam -- okay. -- then that may be what's

 166 10 reflected in that box.

 166 11 Did I read that right?

 166 12 MR. GUNDERSON: Objection.

 166 13 A. Yes

Re: [165:22-166:13]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; Argumentative; 

Leading (611, 403)

OVERRULED

166:14 - 166:19 Crossley, Cynthia

 166 14 Q. So according to Lieutenant

 166 15 Colonel Merkley, it could be -- what's in that

 166 16 box is what -- the hearing protector that was

 166 17 fitted at the clinic that day; right?

 166 18 MR. GUNDERSON: Objection.

 166 19 A. Yes.

Re: [166:14-166:19]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; Argumentative; 

Leading; Vague (611, 403) OVERRULED

166:20 - 166:25 Crossley, Cynthia

 166 20 Q. And that would be consistent with

 166 21 Mr. Keefer's testimony that he was actually

 166 22 provided a blue Quattro flange plug at the

 166 23 clinic; right?

 166 24 MR. GUNDERSON: Objection.

 166 25 A. Yes.

Re: [166:20-166:25]

Def Obj Relevance (401, 402); 403; 

Foundation (602); Argumentative; 

Leading (611, 403) OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 10 of 345
Crossley, Cynthia 9

193:3 - 193:4 Crossley, Cynthia

 193 3 Q. Okay. Let me show you what I'm

 193 4 going to mark as Exhibit 18.

Re: [193:3-193:4]

Def Obj Relevance (401, 402); 403; 

Foundation (602)

OVERRULED

193:10 - 194:8 Crossley, Cynthia

 193 10 Q. I will represent to you that this

 193 11 is an internal report at Aearo, who ultimately

 193 12 became 3M. Okay?

 193 13 A. Okay.

 193 14 Q. And you see that this is dated

 193 15 July 10, 2000; correct?

 193 16 A. Show me the date. I can't see it

 193 17 from here, I'm not finding it.

 193 18 Q. Do you see that, highlighted on

 193 19 the screen?

 193 20 A. Yeah. I see it, yeah. I had to

 193 21 move you around, but I found it.

 193 22 Q. Okay. And so that July 10, 2000,

 193 23 this is roughly seven years before your first

 193 24 visit with Mr. Keefer; correct?

 193 25 A. Yes.

 194 1 Q. Okay. And it says -- The title

 194 2 of this is: How folding the flanges back

 194 3 affects REAT results of the Ultrafit Earplug

 194 4 end of the Combat Arms Plug.

 194 5 Did I read that correctly?

 194 6 A. Yes.

 194 7 Q. Let's go to the next page of

 194 8 this.

Re: [193:10-194:8]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701

OVERRULED

194:9 - 194:22 Crossley, Cynthia

 194 9 I want to look at the

 194 10 introduction. The Combat Arms Earplug was

 194 11 shortened, at the request of the Army, so that

 194 12 it would fit into a carrying case. Because of

 194 13 this, the plug is shorter than any other

 194 14 Ultrafit plug design. The purpose of this

 194 15 report is to document that the current length

 194 16 of the Ultrafit earplug and the Combat Arms

 194 17 plug is too short for proper insertion, and how

 194 18 changing the fitting technique affected the

Re: [194:9-194:22]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; Argumentative; 

Leading (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 11 of 345
Crossley, Cynthia 10

 194 19 result of real-ear tests of this plug.

 194 20 Did I read that correctly?

 194 21 MR. GUNDERSON: Objection.

 194 22 A. Yes.

194:23 - 195:3 Crossley, Cynthia

 194 23 Q. Prior to seeing this document

 194 24 today, have you ever heard that the Combat Arms

 194 25 Earplug was too short for proper insertion into

 195 1 the ear?

 195 2 MR. GUNDERSON: Objection.

 195 3 A. No.

Re: [194:23-195:3]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; Argumentative; 

Misstates; Leading (611, 403) OVERRULED

195:4 - 196:2 Crossley, Cynthia

 195 4 Q. That's something that as a person

 195 5 that trains soldiers on how to use an earplug

 195 6 would be important to you, wouldn't it?

 195 7 A. Yes.

 195 8 Q. You'd want to know if a plug

 195 9 you're training people how to use is actually

 195 10 too short for proper insertion, wouldn't you?

 195 11 MR. GUNDERSON: Objection.

 195 12 A. Yes.

 195 13 Q. You'd want to know if some

 195 14 special technique needed to be changed for the

 195 15 plug to be properly fitted; correct?

 195 16 MR. GUNDERSON: Objection.

 195 17 A. Yes.

 195 18 Q. In your years of being around the

 195 19 Combat Arms plug, were you ever aware that

 195 20 there was some special fitting technique that

 195 21 needed to be used for the plug to be fitted

 195 22 correctly?

 195 23 MR. GUNDERSON: Objection.

 195 24 A. You have to understand, I was not

 195 25 around the Combat Arms Earplugs that much.

 196 1 But, yes, that's something I would want to

 196 2 know.

Re: [195:4-196:2]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; Argumentative; 

Misstates; Leading (611, 403)

OVERRULED

196:3 - 197:3 Crossley, Cynthia

 196 3 Q. And you did not know that, did

 196 4 you?

Re: [196:3-197:3]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; Argumentative; 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 12 of 345
Crossley, Cynthia 11

 196 5 A. I did not.

 196 6 Q. Okay. So you weren't aware that

 196 7 the only way that the plug passed the tests

 196 8 that were done on it was to roll back the

 196 9 flanges of the third flange, that's not

 196 10 something you were aware?

 196 11 MR. GUNDERSON: Objection.

 196 12 A. No.

 196 13 Q. You were never instructed to tell

 196 14 soldiers that to properly insert the plug, they

 196 15 needed to roll back the flanges to be able to

 196 16 insert the plug into their ear, did they?

 196 17 MR. GUNDERSON: Objection.

 196 18 A. No.

 196 19 Q. These -- This instruction to roll

 196 20 back the flange, that was never in any of the

 196 21 instructions provided to you by 3M or the Army,

 196 22 was it?

 196 23 MR. GUNDERSON: Objection.

 196 24 A. No.

 196 25 Q. And that's the type of thing you

 197 1 would want to know, wouldn't you?

 197 2 MR. GUNDERSON: Objection.

 197 3 A. Yes.

Misstates; Leading (611, 403)

197:4 - 197:17 Crossley, Cynthia

 197 4 Q. Now, are you aware that the only

 197 5 reason this flange report came to light was

 197 6 because the Department of Justice conducted a

 197 7 civil investigation into 3M because of

 197 8 allegations of false statements made to the

 197 9 Army?

 197 10 A. No.

 197 11 Q. You're not aware that this

 197 12 document, when it was written in July of 2000,

 197 13 was not produced to the Army or to the United

 197 14 States government?

 197 15 A. I'm not aware --

 197 16 MR. GUNDERSON: Objection.

 197 17 A. -- of any of that.

Re: [197:4-197:17]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; 3M MIL 6

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 13 of 345
Crossley, Cynthia 12

197:18 - 197:23 Crossley, Cynthia

 197 18 Q. Would it surprise you to find out

 197 19 that this document was only produced in 2015,

 197 20 and the plug was immediately withdrawn once

 197 21 that document became publicly available?

 197 22 MR. GUNDERSON: Objection.

 197 23 A. Ask me that again.

Re: [197:18-197:23]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; 3M MIL 6; 3M 

MIL 16; Argumentative; Misstates; 

Leading (611, 403)

SUSTAINED

197:24 - 198:7 Crossley, Cynthia

 197 24 Q. Would it surprise you to find out

 197 25 that this document sat in a file cabinet at 3M

 198 1 for fifteen years before the Army became aware

 198 2 of it?

 198 3 MR. GUNDERSON: Objection.

 198 4 A. I would be surprised, yeah.

 198 5 Q. It's -- That would be very

 198 6 disappointing, wouldn't it?

 198 7 A. It would.

Re: [197:24-198:7]

Def Obj Relevance (401, 402); 403; 

Foundation (602); 701; Argumentative; 

Leading; Misstates (611, 403)

SUSTAINED

217:9 - 217:12 Crossley, Cynthia

 217 9 Q. And given your practice as an

 217 10 occupational health nurse, were you familiar

 217 11 with how your clinic recorded information in

 217 12 those forms?

Re: [217:9-217:12]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64 OVERRULED

218:15 - 218:19 Crossley, Cynthia

 218 15 Do you know who retired Colonel

 218 16 Merkley is?

 218 17 A. According to that documentation,

 218 18 he was head of the Army Hearing Conservation

 218 19 Program.

Re: [218:15-218:19]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

219:2 - 219:4 Crossley, Cynthia

 219 2 Q. Has Lieutenant Colonel Merkley

 219 3 ever told you how technicians should fill out a

 219 4 2216 form?

Re: [219:2-219:4]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

219:6 - 219:6 Crossley, Cynthia

 219 6 A. No, sir.

Re: [219:6-219:6]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

219:12 - 219:17 Crossley, Cynthia

 219 12 Q. If Lieutenant Colonel Merkley had

 219 13 suggested the recording of hearing protection

 219 14 device uses may not be reliable, that would not

Re: [219:12-219:17]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 14 of 345
Crossley, Cynthia 13

 219 15 have been consistent with your clinic's

 219 16 practice for recording which hearing protection

 219 17 devices soldiers actually used?

219:23 - 220:7 Crossley, Cynthia

 219 23 A. Okay. To my -- To my knowledge,

 219 24 and -- we recorded what the soldier used, based

 219 25 on what he told us. And that's what went in

 220 1 the -- that's what I understood went in the

 220 2 DD2216 data.

 220 3 Q. And regardless of anything else

 220 4 that was being done elsewhere in the Army, that

 220 5 was the practice of your clinic; correct?

 220 6 A. That was the practice at our

 220 7 clinic.

Re: [219:23-220:7]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64

COUNTER DESIGNATIONS 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 15 of 345
Keefer, Emily

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 16 of 345
Keefer, Emily 2

Designation Objection Notes

6:10 - 6:10 Keefer, Emily

 6 10 Q. Good morning, Ms. Keefer.

6:14 - 6:15 Keefer, Emily

 6 14 Q. Could you please state your full

 6 15 name for the record?

6:18 - 7:3 Keefer, Emily

 6 18 A. Emily Ila Keefer.

 6 19 Q. And have you ever gone by any

 6 20 other names?

 6 21 A. Maiden name, Emily Ila

 6 22 Karnowski. I was married before Lewis.

 6 23 Emily Ila Yeager.

 7 1 Q. Okay. And is that Yeager,

 7 2 Y-E-A-G-E-R?

 7 3 A. Correct.

9:1 - 9:3 Keefer, Emily

 9 1 Q. Okay. So, where were you born,

 9 2 Ms. Keefer?

 9 3 A. In Toledo, Ohio.

9:4 - 9:6 Keefer, Emily

 9 4 Q. Okay. And what is your date of

 9 5 birth?

 9 6 A. 2/22 of '82.

Re: [9:4-9:6]

Pltf Obj Improper Clarification Direct 

â Violates PTO # 64; 402

COUNTER DESIGNATION & 

OBJECTIONS WITHDRAWN

9:7 - 9:23 Keefer, Emily

 9 7 Q. Okay. And were you raised in

 9 8 Toledo?

 9 9 A. I was raised in Swanton, Ohio,

 9 10 about twenty miles west of Toledo.

 9 11 Q. And that's -- that's where you

 9 12 attended elementary school, middle

 9 13 school, high school?

 9 14 A. Correct.

 9 15 Q. And how long did you live in

 9 16 Swanton?

 9 17 A. Oh, until I was twenty -- well,

 9 18 I'm sorry. Moved to Illinois when I was

 9 19 nineteen, eighteen, right after high

 9 20 school. I was there for a very short

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 17 of 345
Keefer, Emily 3

 9 21 time, came back to Swanton, and then

 9 22 moved out of state to Georgia when I was

 9 23 26-ish, 26.

10:15 - 11:1 Keefer, Emily

 10 15 Q. Fair enough. So, when did you

 10 16 first meet Lewis Keefer?

 10 17 A. We actually grew up down the

 10 18 road from each other as kids, so

 10 19 elementary school. Probably five, six

 10 20 years old maybe. Maybe even before that.

 10 21 Q. And when did your relationship,

 10 22 or romantic relationship with Mr. Keefer

 10 23 begin?

 11 1 A. Not until 2007. About 2007.

11:6 - 11:13 Keefer, Emily

 11 6 Q. Were you and Mr. Keefer -- did

 11 7 you spend a lot of time together as

 11 8 children growing up?

 11 9 A. Not a ton, no.

 11 10 Q. So you wouldn't say you were

 11 11 close friends at any point before -- you

 11 12 know, while you were in school together?

 11 13 A. No.

13:1 - 13:6 Keefer, Emily

 13 1 Q. That's fine. So, when did

 13 2 you -- was your acquaintance with Mr.

 13 3 Keefer continuous from school through

 13 4 when you began your romantic

 13 5 relationship, or did -- go ahead.

 13 6 A. No, sir.

13:7 - 13:9 Keefer, Emily

 13 7 Q. So you fell out of touch for a

 13 8 while?

 13 9 A. For quite a while, yes.

Re: [13:7-13:9]

Pltf Obj No objection

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

13:10 - 13:12 Keefer, Emily

 13 10 Q. And how did you get back in

 13 11 touch?

 13 12 A. A mutual friend.

14:5 - 14:21 Keefer, Emily

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 18 of 345
Keefer, Emily 4

 14 5 Q. Thank you. So Mr. Keefer was --

 14 6 you said you -- said that Mr. Keefer was

 14 7 living in Georgia when you became

 14 8 reacquainted?

 14 9 A. Correct.

 14 10 Q. And was he in the military at

 14 11 that time?

 14 12 A. Yes.

 14 13 Q. And did you know how long he had

 14 14 been in the military?

 14 15 A. I couldn't give you an exact

 14 16 date when -- maybe six months. But I

 14 17 can't -- I can't, you know, give you an

 14 18 exact date. I'm not certain.

 14 19 Q. It hadn't been long?

 14 20 A. No. Not -- not terribly long,

 14 21 no.

14:22 - 15:7 Keefer, Emily

 14 22 Q. Okay. And had Mr. Keefer been

 14 23 married before your relationship began?

 15 1 A. He had, yes.

 15 2 Q. Had that marriage ended by the

 15 3 time you were in contact?

 15 4 A. That, I am not certain.

 15 5 Q. Had he separated from his first

 15 6 wife?

 15 7 A. Oh, yes.

Re: [14:22-15:7]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64; Also FRE's 402, 403, 

602

COUNTER DESIGNATION & 

OBJECTIONS WITHDRAWN

16:12 - 17:8 Keefer, Emily

 16 12 Q. So, how long were you in touch

 16 13 with Mr. Keefer before you got married?

 16 14 A. Between four and six months. I

 16 15 couldn't tell you. It was long distance

 16 16 and, like I said, timelines, everything

 16 17 runs together.

 16 18 Q. Did you visit him in Georgia?

 16 19 A. I did.

 16 20 Q. How many times did you do that?

 16 21 A. Once.

 16 22 Q. And how long were you there?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 19 of 345
Keefer, Emily 5

 16 23 A. Approximately a week.

 17 1 Approximately a week. Again, I'm not

 17 2 certain on the exact dates or how many

 17 3 days.

 17 4 Q. Understood. Did he ever come

 17 5 back to Ohio?

 17 6 A. He did.

 17 7 Q. How many times did he do that?

 17 8 A. I want to say twice.

17:13 - 17:15 Keefer, Emily

 17 13 Q. Okay. Do you remember the date

 17 14 of your wedding?

 17 15 A. March 1st, 2008.

20:8 - 20:10 Keefer, Emily

 20 8 Q. After your marriage to Mr.

 20 9 Keefer, is that when you moved to

 20 10 Georgia?

20:16 - 21:7 Keefer, Emily

 20 16 Yes. I -- I moved to Georgia

 20 17 after we were married.

 20 18 Q. Was that immediate, or was there

 20 19 a delay?

 20 20 A. There was an approximate lapse

 20 21 of time of about a month just to get

 20 22 things situated and, you know, taken care

 20 23 of. It wasn't a knee-jerk move. It --

 21 1 everything was laid out and taken care of

 21 2 before I moved.

 21 3 Q. And where were you living when

 21 4 you moved to -- when you moved in with

 21 5 Mr. Keefer in Georgia?

 21 6 A. On base. Base housing, Fort

 21 7 Benning.

21:8 - 21:16 Keefer, Emily

 21 8 Q. And was that an apartment?

 21 9 A. If you're familiar with base

 21 10 housing, it was an older -- okay. Well,

 21 11 it was an older section. It was like a

 21 12 multifamily kind of -- almost like a

Re: [21:8-21:16]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64; FRE's 402, 403

COUNTER DESIGNATION & 

OBJECTIONS WITHDRAWN

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 20 of 345
Keefer, Emily 6

 21 13 townhouse. But it was probably six --

 21 14 six families in one building, but we all

 21 15 had our own space. Does that make sense?

 21 16 I don't even know how to describe it.

22:3 - 23:10 Keefer, Emily

 22 3 Q. Okay. Did you stay -- at some

 22 4 point Mr. Keefer was deployed to Iraq.

 22 5 Is that correct?

 22 6 A. Correct.

 22 7 Q. And you stayed in Georgia while

 22 8 he was in Iraq?

 22 9 A. I did not.

 22 10 Q. Where did you go during that

 22 11 time?

 22 12 A. I go -- I went back to my mom

 22 13 and dad's house in Ohio.

 22 14 Q. Okay. Do you remember the

 22 15 approximate dates that you returned to --

 22 16 that you were back in Ohio?

 22 17 A. That I went back to Ohio after

 22 18 he deployed?

 22 19 Q. That's right.

 22 20 A. That's five -- it was

 22 21 probably -- it was probably October. I

 22 22 came back in early May. So October of --

 22 23 bear with me because, again, dates, there

 23 1 are so many. So probably October 2009,

 23 2 and I came back in May, I believe May of

 23 3 2010. So I moved back to Georgia in May

 23 4 of 2010 before he returned from

 23 5 deployment to set up housing.

 23 6 Q. And how much longer were you in

 23 7 Georgia after you returned in May of

 23 8 2010?

 23 9 A. We moved to Hawaii in 2011, so

 23 10 approximately eighteen months.

27:11 - 27:13 Keefer, Emily

 27 11 What was your understanding of

 27 12 Mr. Keefer's role in the military when he

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 21 of 345
Keefer, Emily 7

 27 13 was serving in the United States?

27:15 - 27:15 Keefer, Emily

 27 15 A. He was a medic.

27:16 - 27:17 Keefer, Emily

 27 16 Q. And what did you understand his

 27 17 sort of daily responsibilities to be?

Re: [27:16-27:17]

Pltf Obj No objection

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

27:19 - 27:19 Keefer, Emily

 27 19 A. I have no idea.

Re: [27:19-27:19]

Pltf Obj No objection

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

31:17 - 31:19 Keefer, Emily

 31 17 Q. Did he mention wearing any

 31 18 particular hearing -- hearing protection

 31 19 devices when he served in Iraq?

Re: [31:17-31:19]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64;

COUNTER DESIGNATION & 

OBJECTIONS WITHDRAWN

31:21 - 32:1 Keefer, Emily

 31 21 A. Again, there wasn't very much

 31 22 information shared about what he did or

 31 23 what his responsibilities were while he

 32 1 was there.

Re: [31:21-32:1]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64;

32:2 - 32:18 Keefer, Emily

 32 2 Q. Did you notice any change in Mr.

 32 3 Keefer's hearing during the course of his

 32 4 military service?

 32 5 A. I did. You know, eventually, it

 32 6 got to the point where I couldn't -- if

 32 7 we didn't have sight on each other, he

 32 8 wouldn't see me and he wouldn't see me

 32 9 say something, so he didn't hear, or if

 32 10 he did hear, I couldn't tell you what he

 32 11 did hear. Response wasn't -- or response

 32 12 time, rather, was not quick. He could

 32 13 sit -- he could sit with people, a group

 32 14 of people, and he would just kind of sit

 32 15 with a dumb stare. I don't think that he

 32 16 really knew what was going on. Or maybe

 32 17 he didn't hear what was going on. But

 32 18 yes, there was definitely a change.

33:2 - 33:16 Keefer, Emily

 33 2 When in particular would you

 33 3 note -- sort of date this change? When

 33 4 did you first notice a decline in Mr.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 22 of 345
Keefer, Emily 8

 33 5 Keefer's hearing?

 33 6 A. There weren't a lot of -- well,

 33 7 I mean, there was training -- it was -- I

 33 8 mean, it was gradual. It -- it wasn't

 33 9 like a night-and-day difference one day.

 33 10 You know, there were a lot of training

 33 11 exercises. There was TDYs. So it was

 33 12 just -- it -- it was a gradual change. I

 33 13 would say -- you know, I couldn't give

 33 14 you a specific date or even a specific

 33 15 year. I just know that over the years it

 33 16 got worse.

33:23 - 34:2 Keefer, Emily

 33 23 Q. Yeah. Do you recall if in 2008

 34 1 you noticed any decline in Mr. Keefer's

 34 2 hearing?

34:4 - 34:9 Keefer, Emily

 34 4 A. In 2008? That -- that was right

 34 5 at the beginning. So that would have

 34 6 kind of been more of my -- I guess more

 34 7 of the better baseline for me because

 34 8 that was the beginning for us, the

 34 9 beginning of every day for us.

34:18 - 34:22 Keefer, Emily

 34 18 During that first year of living

 34 19 together in Georgia, you did not notice

 34 20 any change in Mr. Keefer's hearing from

 34 21 when you had first gotten back in

 34 22 contact. Is that correct?

35:1 - 35:22 Keefer, Emily

 35 1 A. There was a slight difference.

 35 2 You know, like I said, it -- it was

 35 3 gradual throughout the time. It -- it

 35 4 gradually got worse. But yes, there was

 35 5 a slight difference. Each year it was --

 35 6 it was different. Back in 2007, you

 35 7 know, you're using a Razr flip phone, and

 35 8 there wasn't options for much else. And

 35 9 yes, I noticed a difference. Was it a

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 23 of 345
Keefer, Emily 9

 35 10 huge difference? Probably not. Was

 35 11 there a difference? Yes.

 35 12 Q. And what was the main -- sort of

 35 13 the first thing that tipped you off as to

 35 14 a decline in Mr. Keefer's hearing?

 35 15 A. When you have to say something

 35 16 more than once. I mean, that was pretty

 35 17 self-explanatory. I would hope that my

 35 18 husband wasn't ignoring me, but you and I

 35 19 both know that that happens sometimes.

 35 20 Q. Did that ever happen early on in

 35 21 your -- when you became reacquainted with

 35 22 Mr. Keefer?

36:1 - 36:4 Keefer, Emily

 36 1 A. When I had to repeat myself?

 36 2 Q. Yes.

 36 3 A. Early on? Not nearly as much as

 36 4 later on.

36:12 - 37:8 Keefer, Emily

 36 12 Q. It's fair enough. But you

 36 13 noticed -- you first noticed having to

 36 14 repeat yourself more often in 2008. Is

 36 15 that your testimony?

 36 16 A. More often? I -- I wouldn't --

 36 17 I'm not going to say that's my testimony.

 36 18 I told you that there was gradual -- it

 36 19 gradually got worse. It gradually got to

 36 20 the point where I was repeating myself

 36 21 more often. From day one to day 365,

 36 22 yes. I mean, I repeated myself more.

 36 23 Was I repeating myself as much as the

 37 1 end? No.

 37 2 Q. And you also mentioned that Mr.

 37 3 Keefer -- well, did -- did you notice Mr.

 37 4 Keefer having trouble understanding

 37 5 conversation in groups of people?

 37 6 A. Yes.

 37 7 Q. And when -- when did you first

 37 8 notice that?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 24 of 345
Keefer, Emily 10

37:11 - 38:10 Keefer, Emily

 37 11 A. Now, I can't speak for him. I

 37 12 just noticed the -- his body language,

 37 13 his facial expressions. And yes, it was

 37 14 a dumbfounded look, like he wasn't sure

 37 15 what exactly was going on or what was

 37 16 being said.

 37 17 Q. And when did you first notice

 37 18 that?

 37 19 A. Probably -- probably later in

 37 20 that year. Early on in the marriage, we

 37 21 spent more time with like groups. Once

 37 22 we had our family, it wasn't so much

 37 23 groups. So younger years, early on in

 38 1 our marriage, I noticed that. But it --

 38 2 it continued and, you know, even through

 38 3 his service, I did notice if we went to

 38 4 events or whatnot -- when I say "events,"

 38 5 I mean like battalion events or unit

 38 6 events where he was with his coworkers --

 38 7 it would be the same thing. Standing in

 38 8 a group of, you know, four or six people

 38 9 even close, you could almost see the

 38 10 struggle.

38:18 - 39:2 Keefer, Emily

 38 18 Q. So, before Mr. Keefer deployed

 38 19 to Iraq, had you already noticed having

 38 20 to repeat yourself more often?

 38 21 A. In the beginning, yes.

 38 22 Q. And had you noticed Mr. Keefer

 38 23 having trouble interacting in social

 39 1 settings?

 39 2 A. Some.

39:8 - 39:12 Keefer, Emily

 39 8 Before Mr. Keefer, deployed to

 39 9 Iraq in late 2009, had you noticed him

 39 10 having more difficulty interacting in

 39 11 social settings?

 39 12 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 25 of 345
Keefer, Emily 11

39:14 - 39:15 Keefer, Emily

 39 14 A. But it still wasn't as much as

 39 15 the end.

Re: [39:14-39:15]

Pltf Obj No objection

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 26 of 345
Klun

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 87-1 Filed 03/16/21 Page 27 of 345
Klun 2

Designation Objection Notes

1:9 - 1:15 Klun

 1 9 CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER

 1 10 � � �

 1 11 Remote videotaped deposition of

 1 12 Robert Klun held at the location of the

 1 13 witness commencing at 9:01 a.m. Central, on

 1 14 the above date, before Carrie A. Campbell,

 1 15 Registered Diplomate Reporter, Certified

11:9 - 11:15 Klun

 11 9 Q. Good morning, Mr. Klun.

 11 10 A. Good morning.

 11 11 Q. How's the sound quality?

 11 12 A. I think it's pretty good.

 11 13 Q. All right. Would you please

 11 14 state your name for the record?

 11 15 A. Robert Klun.

11:16 - 11:25 Klun

 11 16 Q. Mr. Klun, my name is Tom

 11 17 Pirtle. I'm a lawyer. I'm actually from

 11 18 Houston, Texas. I've been charged with

 11 19 representing about 160,000 US servicemen and

 11 20 women in this deposition who are suing your

 11 21 former employer, 3M, over the 3M Combat Arms

 11 22 version 2 earplugs.

 11 23 You understand I'm on the

 11 24 opposite of the lawsuit from 3M?

 11 25 A. Yes.

Re: [11:16-11:25]

Def Obj Prejudice (403); Relevance 

(401, 402)

SUSTAINED

17:1 - 17:8 Klun

 17 1 When you retired from 3M at the

 17 2 end of 2015, what was your title?

 17 3 A. At that point in time with 3M,

 17 4 it would have been quality manager.

 17 5 Q. What does a quality manager do?

 17 6 A. In my role, I worked on quality

 17 7 systems and any other special issues that may

 17 8 have arisen or may arise.

17:9 - 17:10 Klun

 17 9 Q. Well, I might explore that a

Re: [17:9-17:10]

Def Obj Relevance (401, 402)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 28 of 345
Klun 3

 17 10 little bit further because I don't speak 3M.

17:11 - 17:16 Klun

 17 11 What is quality systems?

 17 12 A. It would be the processes that

 17 13 we used. If there's -- if there's a process

 17 14 for filing or addressing customer complaints

 17 15 or if there's any -- any type of work

 17 16 process.

17:17 - 17:20 Klun

 17 17 Q. So this is work processes

 17 18 regarding multiple products in multiple areas

 17 19 that you're working on?

 17 20 A. Yes.

21:3 - 21:10 Klun

 21 3 Q. All right. I want to go

 21 4 through a little bit of this work history.

 21 5 When did you start with Aearo?

 21 6 A. In November 1998.

 21 7 Q. And then you were continuously

 21 8 employed between November of 1998 and

 21 9 December of 2015 by either Aearo or 3M, fair?

 21 10 A. Yes.

21:11 - 21:17 Klun

 21 11 Q. Now, prior to your work with

 21 12 3M, and I'll go back to it in a second, it

 21 13 looks like you worked for Dow Chemical?

 21 14 A. Yes.

 21 15 Q. And where did you work for Dow

 21 16 Chemical?

 21 17 A. In Midland, Michigan.

23:24 - 24:2 Klun

 23 24 When you were hired on at

 23 25 Aearo, what were you tasked with doing?

 24 1 A. I hired on as a quality

 24 2 manager.

25:18 - 26:24 Klun

 25 18 Q. All right. What I have on the

 25 19 screen is page 8 of this document, and I have

 25 20 your name highlighted down at the bottom.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 29 of 345
Klun 4

 25 21 A. Uh-huh.

 25 22 Q. Do you see it?

 25 23 A. Yes.

 25 24 Q. It's called Aearo Technologies,

 25 25 LLC, operating board.

 26 1 What was that?

 26 2 A. That was the leadership at

 26 3 Aearo.

 26 4 Q. And were you a member --

 26 5 A. After the 3M acquisition of

 26 6 Aearo Technologies.

 26 7 Q. Okay. So this would have been

 26 8 post-2008?

 26 9 A. Yes.

 26 10 Q. All right. And you're listed,

 26 11 Bob Klun --

 26 12 A. Uh-huh.

 26 13 Q. -- at R&D. Research and

 26 14 development?

 26 15 A. Yes.

 26 16 Q. What did you do in that -- in

 26 17 that regard?

 26 18 A. I headed up research and

 26 19 development for the Aearo Technologies, LLC.

 26 20 Q. What would that entail, sir?

 26 21 A. It would entail the various

 26 22 product lines that were handled by Aearo,

 26 23 which included hearing, eyewear, prescription

 26 24 eyewear, respiratory, those kind of things.

26:25 - 27:2 Klun

 26 25 Q. Okay.

 27 1 A. Various -- the various product

 27 2 lines.

Re: [26:25-27:2]

Pltf Obj cumulative

OVERRULED

28:9 - 29:2 Klun

 28 9 Q. Okay. So were you the manager

 28 10 of the Aearo laboratories lab -- for what

 28 11 years?

 28 12 A. They reorganized a couple

 28 13 times, but I would say at this point in time

Re: [28:9-29:2]

Pltf Obj cumulative; improper counter 

per PTO 64

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 30 of 345
Klun 5

 28 14 it would have been 2000 -- around 2012 to --

 28 15 or '10, 2010, to somewhere 2012, 2013.

 28 16 Q. Is that the only time you were

 28 17 the manager of the Aearo laboratories, or

 28 18 were you manager before the acquisition by

 28 19 3M?

 28 20 A. As the R&D manager for Aearo, I

 28 21 was -- managed R&D before the acquisition.

 28 22 Q. And how long did that -- how

 28 23 far back did that go? To November of '98 or

 28 24 was it later?

 28 25 A. It was later. It would have

 29 1 been in the range of late 2002, 2001,

 29 2 somewhere in that time frame.

29:3 - 29:8 Klun

 29 3 Q. So from 2001, 2002, through,

 29 4 say 2012, you were the manager of the Aearo

 29 5 laboratories?

 29 6 MR. FIELDS: Objection to form.

 29 7 THE WITNESS: Yeah, that's

 29 8 correct.

Re: [29:3-29:8]

Def Obj Misstates; Vague (611, 403)

OVERRULED

29:9 - 30:15 Klun

 29 9 QUESTIONS BY MR. PIRTLE:

 29 10 Q. And the people underneath your

 29 11 name, did they report to you?

 29 12 A. Yes.

 29 13 Q. So this J. Hamer was Jeffrey

 29 14 Hamer?

 29 15 A. Yes.

 29 16 Q. He was a direct report to you?

 29 17 A. Yes.

 29 18 Q. I see an E. Berger, Elliott

 29 19 Berger; he reported to you?

 29 20 A. He reported to Jeff Hamer.

 29 21 Q. Okay. And Mr. Hamer reported

 29 22 to you?

 29 23 A. Yes.

 29 24 Q. All right. And you reported to

 29 25 a Robert Anderson at this point in time?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 31 of 345
Klun 6

 30 1 A. Yes.

 30 2 Q. Was this your whole job during

 30 3 this entire time period or did you have other

 30 4 titles or other roles? Because I see your

 30 5 name a couple different places.

 30 6 A. At this point in time with this

 30 7 organizational chart, those were my

 30 8 responsibilities at 3M.

 30 9 Q. And you were over the

 30 10 laboratory that did, for example, the NRR

 30 11 testing on earplugs?

 30 12 A. That was under my

 30 13 responsibility through -- reporting

 30 14 through Jeff -- you know, Jeff Hamer

 30 15 reporting through me -- to me.

31:8 - 31:18 Klun

 31 8 Q. All right. How did you become

 31 9 familiar with the Combat Arms Earplug

 31 10 version 2?

 31 11 A. As I recall, very peripherally

 31 12 from the standpoint of -- that we sold the

 31 13 product at Aearo and also at 3M.

 31 14 Q. Well, the laboratory also

 31 15 tested the product, didn't it?

 31 16 A. I would say -- I can't recall

 31 17 who tested the product, but I would say -- I

 31 18 would say, yes, they probably tested it.

Re: [31:8-31:18]

Pltf Obj improper counter per PTO 64

OVERRULED

31:19 - 32:5 Klun

 31 19 Q. All right. One more of these

 31 20 on -- go to page 20. Aearo Technologies,

 31 21 LLC, research and development organization.

 31 22 Now, it's got you listed as the

 31 23 manager of R&D.

 31 24 Was that -- it was a

 31 25 simultaneous role with being the manager of

 32 1 the Aearo laboratories?

 32 2 A. No, the 3M organization -- 3M

 32 3 reorganized the -- Aearo many times as they

 32 4 tried to integrate Aearo into the 3M

Re: [31:19-32:5]

Pltf Obj improper counter per PTO 64

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 32 of 345
Klun 7

 32 5 structure.

32:6 - 32:16 Klun

 32 6 Q. Okay. So this is a

 32 7 reorganization. You're still -- it looks

 32 8 like you're still over the laboratory. It

 32 9 just looks like it's split between hearing

 32 10 and E-A-RCAL laboratory. On the far left

 32 11 side under Jeff Hamer.

 32 12 A. Under Jeff would be the passive

 32 13 hearing or earplug business in general.

 32 14 Under Sigge Nilsson would be

 32 15 the Peltor products, which would be earmuffs

 32 16 and communication headsets.

Re: [32:6-32:16]

Pltf Obj improper counter per PTO 64

OVERRULED

32:17 - 32:20 Klun

 32 17 Q. Go ahead.

 32 18 A. Indianapolis headed up -- was

 32 19 the center for earplug research. Peltor was

 32 20 for earmuffs.

Re: [32:17-32:20]

Pltf Obj improper counter per PTO 64

OVERRULED

33:22 - 33:24 Klun

 33 22 Q. Okay. Underneath Hearing, I

 33 23 see there's a list of names, right?

 33 24 A. Yes.

34:4 - 34:17 Klun

 34 4 Did you know Marc Doty?

 34 5 A. Yes, as a -- I knew who he was

 34 6 when I saw him, yes.

 34 7 Q. Well, it doesn't sound like you

 34 8 knew him too well.

 34 9 A. That's correct.

 34 10 Q. What is your understanding of

 34 11 what he did in your organization?

 34 12 A. As I recall, he would be a

 34 13 product -- in product design.

 34 14 Q. What aspect of product design?

 34 15 A. As I recall, would have been as

 34 16 a mechanical -- or engineer, mechanical

 34 17 engineer.

34:18 - 34:19 Klun

 34 18 Q. I see a lot of drawings with

Re: [34:18-34:19]

Def Obj Relevance (401, 402); Prejudice 

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 33 of 345
Klun 8

 34 19 his name on it. (403)

34:20 - 34:21 Klun

 34 20 Did he draw various products?

 34 21 A. That's my understanding, yes.

34:25 - 35:4 Klun

 34 25 Q. Drafting of blueprints or

 35 1 whatever you want, technical specifications

 35 2 for products?

 35 3 A. As I recall it, it would be

 35 4 yes.

35:5 - 35:10 Klun

 35 5 Q. All right. I see an R. Falco.

 35 6 Is that Bob Falco?

 35 7 A. Yes.

 35 8 Q. What'd he do?

 35 9 A. He also designed and developed

 35 10 hearing protection products.

47:1 - 47:6 Klun

 47 1 Q. Did you have a T number?

 47 2 A. No. He is on the technical

 47 3 ladder. I was a manager, so had a -- and I

 47 4 can't recall my -- what the terminology was

 47 5 within 3M on the managerial ladder. T is for

 47 6 technical.

Re: [47:1-47:6]

Pltf Obj 403; improper counter per PTO 

64

OVERRULED

47:7 - 47:22 Klun

 47 7 Q. Okay. Let's turn on the next

 47 8 page, and it looks like you're -- either you

 47 9 or Elliott Berger is going in to some of his

 47 10 contributions for this consideration of T6

 47 11 division staff scientist; am I correct?

 47 12 A. Summary of contributions.

 47 13 That's what the document says, yes.

 47 14 Q. Financial impact, products

 47 15 currently or formerly marketed, the first

 47 16 one's Combat -- the product name was Combat

 47 17 Arms?

 47 18 A. Yes, that's what the document

 47 19 says.

 47 20 Q. And then on the right-hand

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 34 of 345
Klun 9

 47 21 side, contributing role, it's got PI.

 47 22 What does that stand for?

47:25 - 47:25 Klun

 47 25 A. PI. I don't recall the term.

48:3 - 48:6 Klun

 48 3 Q. It's highlighted at the bottom

 48 4 of the page, Mr. Klun.

 48 5 A. Okay. There you go. That's

 48 6 what the document says, "primary inventor."

48:15 - 48:18 Klun

 48 15 Q. Is this a document you would

 48 16 have filled out or filled out with Mr. Berger

 48 17 for this T6 promotion?

 48 18 A. Yes, or with others.

50:9 - 50:25 Klun

 50 9 Q. If you look down to one, two,

 50 10 three, fourth paragraph, about in the middle

 50 11 it starts, "He also is the inventor of the

 50 12 Combat Arms Earplug."

 50 13 I've highlighted it. Did I

 50 14 read it correctly?

 50 15 A. Uh-huh.

 50 16 Q. I'm sorry, is that a yes?

 50 17 A. Yes, that's what the document

 50 18 says.

 50 19 Q. Turn over to page 17 of this

 50 20 document. This is to whom it may concern for

 50 21 Richard E. Knauer.

 50 22 Who is that?

 50 23 A. Dick Knauer was the -- would

 50 24 have been Elliott's supervisor prior to Jeff

 50 25 Hamer.

51:1 - 51:3 Klun

 51 1 Q. Okay. So it went Richard, or

 51 2 Dick, Knauer to Jeff Hamer?

 51 3 A. Yes.

51:18 - 52:3 Klun

 51 18 Q. Skipping on down, it says, "A

 51 19 prime example is the Combat Arms platform.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 35 of 345
Klun 10

 51 20 Elliott was responsible for leading the

 51 21 development of these products, which has

 51 22 brought significant revenue with an extremely

 51 23 high margin to Aearo over the last several

 51 24 years."

 51 25 Did I read that reasonably

 52 1 correct?

 52 2 A. Yes, that's what the document

 52 3 says.

52:16 - 53:3 Klun

 52 16 Q. And what I'm saying is, you

 52 17 don't take issue with that. You believe that

 52 18 to be true and accurate.

 52 19 Fair?

 52 20 A. I believe that to be true now,

 52 21 yeah. I believe it is.

 52 22 Q. "The basic initial concept of

 52 23 which was brought to Aearo by an individual

 52 24 from German -- from a German/French

 52 25 laboratory."

 53 1 Did I read that in parentheses

 53 2 correctly?

 53 3 A. Yes. Yep, that's correct.

53:17 - 53:24 Klun

 53 17 Q. And does it go by the acronym

 53 18 ISL?

 53 19 A. As I recall, that would have

 53 20 been the laboratory, yes.

 53 21 Q. And it's a German/French

 53 22 laboratory?

 53 23 A. Yeah, that's what the document

 53 24 says.

53:25 - 54:2 Klun

 53 25 Q. Is that what you remember?

 54 1 A. I don't really recall, but

 54 2 that's what the document says, sure.

54:3 - 54:5 Klun

 54 3 Q. Okay. Do you remember a

 54 4 scientist there named Pascal?

Re: [54:3-54:5]

Pltf Obj improper counter per PTO 64

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 36 of 345
Klun 11

 54 5 A. I don't recall.

54:19 - 54:22 Klun

 54 19 Q. Now, you were involved with the

 54 20 Combat Arms version 2 fairly early in your

 54 21 career at Aearo?

 54 22 A. No, I don't agree with that.

Re: [54:19-54:22]

Pltf Obj improper counter per PTO 64

OVERRULED

65:22 - 66:1 Klun

 65 22 Q. Do you remember -- do you

 65 23 remember how NRRs are related to the EPA and

 65 24 their regulations?

 65 25 A. I do not recall.

 66 1 Q. All products that were sold had

66:1 - 66:9 Klun

 66 1 Q. All products that were sold had

 66 2 to have an NRR affixed to them?

 66 3 MR. FIELDS: Objection. Form.

 66 4 QUESTIONS BY MR. PIRTLE:

 66 5 Q. I'm talking about hearing

 66 6 protection now.

 66 7 MR. FIELDS: Same objection.

 66 8 THE WITNESS: That is my

 66 9 understanding.

Re: [66:1-66:9]

Def Obj Vague (611, 403); Foundation 

602

OVERRULED

66:10 - 66:11 Klun

 66 10 QUESTIONS BY MR. PIRTLE:

 66 11 Q. Fair enough.

66:12 - 66:16 Klun

 66 12 So all hearing protection

 66 13 products that were sold had an NRR affixed to

 66 14 them.

 66 15 Fair enough?

 66 16 A. Fair enough.

Re: [66:12-66:16]

Def Obj Foundation (602)

OVERRULED

66:17 - 66:25 Klun

 66 17 Q. And is it fair to say that an

 66 18 NRR could affect whether or not a certain

 66 19 customer would buy a certain type of implant

 66 20 for an application?

 66 21 MR. FIELDS: Objection. Form.

 66 22 MR. PIRTLE: You can answer.

 66 23 THE WITNESS: NRR would not be

Re: [66:17-66:25]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 37 of 345
Klun 12

 66 24 the only factor, but NRR would be a

 66 25 factor.

67:6 - 67:12 Klun

 67 6 Q. And generally the higher the

 67 7 number, the better attenuation the plug in

 67 8 REAT testing has, if I understand correctly?

 67 9 MR. FIELDS: Objection. Form.

 67 10 THE WITNESS: My understanding

 67 11 is the higher the NRR number, the more

 67 12 noise reduction.

Re: [67:6-67:12]

Def Obj Foundation (602)

OVERRULED

67:17 - 67:20 Klun

 67 17 What was your involvement with

 67 18 the NRR testing while you were at 3M, Aearo?

 67 19 A. As I recall, I was not involved

 67 20 in any testing.

67:21 - 68:8 Klun

 67 21 (Klun Exhibit 6 marked for

 67 22 identification.)

 67 23 QUESTIONS BY MR. PIRTLE:

 67 24 Q. Let me show you what I'm going

 67 25 to mark as Exhibit 6 to your deposition.

 68 1 This is control number 56. I'll let you look

 68 2 at the first page.

 68 3 And the first page is important

 68 4 because it's from Jeffrey Hamer to you, dated

 68 5 2014, and it's -- I'm sorry, 2012, and it

 68 6 says, "FYI, Jeff Hamer."

 68 7 You with me?

 68 8 A. Yeah, I can see that part. I'm

69:12 - 69:22 Klun

 69 12 Q. Okay. Well, this looks to be

 69 13 something that -- a document or a group of

 69 14 documents that was sent to you for your

 69 15 information by your employee -- or your

 69 16 report, Jeff Hamer. Fair?

 69 17 A. Based on the document, but I do

 69 18 not recall.

 69 19 Q. You don't remember seeing this

 69 20 document?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 38 of 345
Klun 13

 69 21 A. I do not recall. I do not

 69 22 recall the document.

69:23 - 70:11 Klun

 69 23 Q. Let's turn over to the second

 69 24 page of the document, see if reading this

 69 25 will not -- might help refresh your

 70 1 recollection.

 70 2 Down at the bottom below the

 70 3 line -- and I'll bring it up -- it says,

 70 4 "While this is somewhat vague, it is clear

 70 5 that if we make any modifications to a

 70 6 product which we suspect might impact, in

 70 7 parentheses, decrease, attenuation, we are

 70 8 obligated to retest according to the current

 70 9 EPA labeling requirements."

 70 10 Did I read that reasonably

 70 11 correct?

71:1 - 71:4 Klun

 71 1 MR. FIELDS: Okay. Do you see

 71 2 it highlighted?

 71 3 THE WITNESS: Yes, I see

 71 4 highlighted now, yes.

71:8 - 71:11 Klun

 71 8 QUESTIONS BY MR. PIRTLE:

 71 9 Q. Are you following with me,

 71 10 Mr. Klun?

 71 11 A. Yes.

71:12 - 73:19 Klun

 71 12 Q. "The requirements for retest in

 71 13 other countries are even more stringent. For

 71 14 CE, any product change must be reported to

 71 15 the notified body."

 71 16 Did I read that correctly?

 71 17 A. Yes, that's what the document

 71 18 says.

 71 19 Q. It says, "As a result, back in

 71 20 2003, Dick Knauer and Bob Klun created the

 71 21 attached document which stipulates what we

 71 22 consider a significant change."

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 39 of 345
Klun 14

 71 23 Did I read that correctly?

 71 24 A. Yes, you read what the document

 71 25 says.

 72 1 Q. It says, "For molded products,

 72 2 this document clearly indicates a dimensional

 72 3 change greater than approximately 5 percent

 72 4 is unacceptable. We also document the actual

 72 5 dimensions of the product produced and used

 72 6 for our label test evaluations so that we

 72 7 have a reference to go back to in the event

 72 8 we want to alter a tool or process."

 72 9 You with me?

 72 10 A. I'm with you.

 72 11 Q. All right. Said, "If we decide

 72 12 to make a, quote/unquote, change to a

 72 13 product, we must then retest per the EPA

 72 14 regulations using the subjective rear" -- I

 72 15 mean "real-ear attenuation at threshold,

 72 16 REAT, methodology stipulated by EPA and

 72 17 considered the gold standard for hearing

 72 18 protector attenuation measurement."

 72 19 Is that reasonably correct?

 72 20 A. Yes, that's what the document

 72 21 says.

 72 22 Q. It goes on to say, "As a

 72 23 result, we try very hard to not make any

 72 24 changes to any" -- oh, "to existing products

 72 25 that would result in a retest."

 73 1 Did you follow me there?

 73 2 A. I follow you there. That's

 73 3 what the document says.

 73 4 Q. I skipped a sentence.

 73 5 "As this is a subject test

 73 6 using 10 to 20 human subjects, depending on

 73 7 the situation, there is considerable

 73 8 variability in results. Easy plus or minus

 73 9 3 dB NRR without any change to the product,

 73 10 and changes up to 5 dB have been documented."

 73 11 Does that fill it in?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 40 of 345
Klun 15

 73 12 A. That's what the document says.

 73 13 Q. It says, "If we are forced to

 73 14 retest, it could easily result in a rating

 73 15 number change which could directly impact

 73 16 sales of the product and cause considerable

 73 17 money to change all of our literature and

 73 18 packaging to reflect the new test result.

 73 19 Sincerely, Hamer."

74:4 - 75:11 Klun

 74 4 Q. All right. Now, if I get the

 74 5 gist of this, Mr. Hamer is informing you that

 74 6 he is -- well, he's actually supplying you

 74 7 with a standard or a procedure that you and

 74 8 Mr. Dick Knauer wrote in '03 which addresses

 74 9 whether or not an NRR test has to be

 74 10 reperformed.

 74 11 Are you with me?

 74 12 A. I'm with you, but what did

 74 13 you -- can you say what you said again, just

 74 14 so I'm clear?

 74 15 Q. Sure.

 74 16 It looks like he is

 74 17 transmitting, along with this FYI, a test

 74 18 protocol that you and Mr. Knauer put together

 74 19 in August of 2003 which defines what a

 74 20 substantial change in a product would be

 74 21 which would require retesting under the REAT

 74 22 protocol.

 74 23 Is that fair?

 74 24 A. Yeah, that's what the document

 74 25 says, yes.

 75 1 Q. All right. And did you in

 75 2 fact, together with Mr. Knauer, put together

 75 3 a document in August of 2003, or in 2003,

 75 4 which describes what a substantial change in

 75 5 a document -- in a product would be?

 75 6 A. Yes, I recall that Dick and I

 75 7 pulled together a document.

 75 8 Q. And what was the purpose behind

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 41 of 345
Klun 16

 75 9 you and Dick pulling together that document?

 75 10 A. Basically to document what we

 75 11 had been doing to comply.

75:12 - 75:18 Klun

 75 12 Q. It looks like from reading the

 75 13 e-mail that there is variability in NRR

 75 14 testing.

 75 15 Am I right in picking that up?

 75 16 MR. FIELDS: Objection. Form.

 75 17 THE WITNESS: That's what the

 75 18 document says.

Re: [75:12-75:18]

Def Obj (Relevance; 401, 402); 

Foundation (602)

OVERRULED

84:2 - 84:4 Klun

 84 2 (Klun Exhibit 7 marked for

 84 3 identification.)

 84 4 QUESTIONS BY MR. PIRTLE:

84:6 - 84:21 Klun

 84 6 I want to show you another

 84 7 document that I'm going to mark as Exhibit 7

 84 8 to your deposition, document control number

 84 9 is P0389.1.

 84 10 Can you see the document which

 84 11 is Exhibit 7, Mr. Klun?

 84 12 A. What's the document say?

 84 13 Q. "How folding the flanges back

 84 14 affects REAT results of the UltraFit earplug

 84 15 end of the Combat Arms plug."

 84 16 A. I see it now on the screen,

 84 17 yes.

 84 18 Q. Sir, do you recognize this

 84 19 document?

 84 20 A. I don't recall ever seeing this

 84 21 document.

85:4 - 85:8 Klun

 85 4 Q. While you were at 3M, Aearo, do

 85 5 you ever have memory of this document being

 85 6 supplied to you or there being conversations

 85 7 about it?

 85 8 A. I do not recall.

86:12 - 86:14 Klun Re: [86:12-86:14] OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 42 of 345
Klun 17

 86 12 I was showing you the front

 86 13 page of Exhibit 7 by Kieper and Berger,

 86 14 July 10, 2000.

Def Obj Cumulative (403)

86:19 - 86:22 Klun

 86 19 And it's my understanding that

 86 20 you have testified that you've not seen this

 86 21 document to your memory before?

 86 22 A. That's correct.

Re: [86:19-86:22]

Def Obj Cumulative (403)

OVERRULED

92:5 - 92:16 Klun

 92 5 Here is what I'm interested in.

 92 6 "The initial test, 213015, was

 92 7 stopped after eight subjects because the

 92 8 individual results were variable and the NRR

 92 9 was quite low, 11."

 92 10 Did I read that reasonably

 92 11 correct?

 92 12 A. That's what the document says.

 92 13 Q. The document characterized

 92 14 as -- an NRR of 11 as being quite low.

 92 15 Is that true to your knowledge?

 92 16 A. To my knowledge, yes.

Re: [92:5-92:16]

Def Obj Foundation (602)

OVERRULED

93:4 - 93:6 Klun

 93 4 Q. An NRR of 22 is much better

 93 5 than an NRR of 11; can we agree on that?

 93 6 A. Yes, I agree.

121:25 - 122:16 Klun

 121 25 Q. My question is, stopping it at

 122 1 nine makes the test results not reportable as

 122 2 the NRR under the EPA regs that you wrote

 122 3 about earlier, correct? 10 or 20?

 122 4 A. Whatever the regs say.

 122 5 Q. Couldn't hear you.

 122 6 A. Whatever the regs say for an

 122 7 official test.

 122 8 Q. Well, the regulations say that

 122 9 the test is either a 20-person test or a

 122 10 10-person test to be a complete REAT test.

 122 11 If it's stopped after nine

 122 12 subjects, it's not a complete REAT test.

Re: [121:25-122:16]

Def Obj 3M MIL No. 18; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 43 of 345
Klun 18

 122 13 Do we agree on that under those

 122 14 definitions?

 122 15 A. Yes.

 122 16 MR. FIELDS: Objection. Form.

122:8 - 122:16 Klun

 122 8 Q. Well, the regulations say that

 122 9 the test is either a 20-person test or a

 122 10 10-person test to be a complete REAT test.

 122 11 If it's stopped after nine

 122 12 subjects, it's not a complete REAT test.

 122 13 Do we agree on that under those

 122 14 definitions?

 122 15 A. Yes.

 122 16 MR. FIELDS: Objection. Form.

Re: [122:8-122:16]

Def Obj Vague (611, 403); Foundation 

(602); 701

OVERRULED

122:21 - 122:24 Klun

 122 21 Q. And my question to you is: It

 122 22 was common at Aearo, 3M, to stop REAT testing

 122 23 when bad results were coming in short of the

 122 24 10 or 20 subject threshold, correct?

123:1 - 123:2 Klun

 123 1 THE WITNESS: I don't agree

 123 2 with that.

146:13 - 146:17 Klun

 146 13 Q. Do you know what type of

 146 14 support 3M gave the Armed Forces in trying to

 146 15 inform the Armed Forces as to how to fit the

 146 16 Combat Arms version 2?

 146 17 A. I do not know.

Re: [146:13-146:17]

Pltf Obj improper counter per PTO 64

SUSTAINED

146:22 - 147:4 Klun

 146 22 Q. In 2004, what was your job?

 146 23 A. In 2004, if I recall correctly,

 146 24 it would have been R&D.

 146 25 Q. And what all did that entail?

 147 1 A. It would have been R&D for the

 147 2 products that Aearo offered, including

 147 3 eyewear, respiratory, all protection, the

 147 4 entire portfolio.

Re: [146:22-147:4]

Pltf Obj improper counter per PTO 64

OVERRULED

147:5 - 147:14 Klun

 147 5 Q. What was TJR?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 44 of 345
Klun 19

 147 6 A. A contract manufacturer used by

 147 7 Aearo.

 147 8 Q. What did TJR stand for?

 147 9 A. That, I do not recall.

 147 10 Q. Where was TJR?

 147 11 A. If I remember correctly, it

 147 12 would have been Tijuana.

 147 13 Q. Tijuana, Mexico?

 147 14 A. I can't recall.

147:19 - 147:20 Klun

 147 19 And what did TJR do for Aearo

 147 20 in terms of contract manufacturing products?

147:22 - 147:25 Klun

 147 22 THE WITNESS: All they did, I

 147 23 cannot recall. I don't know what

 147 24 products were made -- all the products

 147 25 made at TJR.

148:2 - 148:8 Klun

 148 2 Q. Well, they had some involvement

 148 3 with the Combat Arms, didn't they?

 148 4 A. Yes, that I can remember.

 148 5 Q. Okay. What did they do for the

 148 6 Combat Arms Earplugs?

 148 7 A. If I recall correctly,

 148 8 assembly.

150:13 - 150:24 Klun

 150 13 Q. Was there a place where Aearo

 150 14 manufactured the UltraFit tips, is what I'm

 150 15 getting at.

 150 16 A. At Aearo?

 150 17 Q. At Aearo.

 150 18 A. I would recall manufacturing

 150 19 the tips at Southbridge.

 150 20 Q. At where?

 150 21 A. Southbridge.

 150 22 Q. And what is that?

 150 23 A. It would have been an Aearo

 150 24 plant in Southbridge, Massachusetts.

150:25 - 151:2 Klun

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 45 of 345
Klun 20

 150 25 Q. And where did the stems and

 151 1 filter come from?

 151 2 A. That, I do not recall.

151:3 - 151:5 Klun

 151 3 Q. And what was the -- to the best

 151 4 of your recollection, what was TJR's job?

 151 5 A. To assemble product.

151:6 - 151:10 Klun

 151 6 Q. How would they go about

 151 7 assembling it, putting tips on and putting

 151 8 the filters in the stem or in the straw?

 151 9 A. That was not my responsibility,

 151 10 so I don't know what TJR did.

151:14 - 159:25 Klun

 151 14 Q. Let me show you what I've

 151 15 marked as Exhibit 16 to your depo, which is

 151 16 control number P2066A. It's got an agenda on

 151 17 it, but this is the first page of it.

 151 18 Let me know when you've

 151 19 reviewed it. We'll blow it up large for you

 151 20 to look at.

 151 21 A. Okay. I've seen it.

 151 22 Q. Okay. This is an e-mail from

 151 23 you, correct?

 151 24 A. That's what the document says.

 151 25 Q. And it's dated November

 152 1 the 19th of 2004, correct?

 152 2 A. Correct.

 152 3 Q. Do you remember reviewing this

 152 4 document?

 152 5 A. I do not recall this document.

 152 6 Q. All right. It looks like you

 152 7 cc'd yourself, right?

 152 8 A. That's what the document says.

 152 9 Q. It says, "TJR quality, please

 152 10 review attached. Plans are for Bob and Ron

 152 11 to travel to TJR next week."

 152 12 Did you go down to Tijuana to

 152 13 TJR?

Re: [151:14-159:25]

Def Obj 3M MIL No. 26; Relevance 

(401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 46 of 345
Klun 21

 152 14 A. I never went to TJR.

 152 15 Q. Did Ron go to TJR?

 152 16 A. I don't recall, but I assume

 152 17 so.

 152 18 Q. Was Ron working for you at the

 152 19 time? Sorry?

 152 20 A. Worked for Elliott, who worked

 152 21 for Dick.

 152 22 Q. All right.

 152 23 A. Elliott Berger --

 152 24 Q. Sure.

 152 25 A. -- and Dick Knauer.

 153 1 Q. And then you?

 153 2 A. Correct.

 153 3 Q. We'll turn over to the third

 153 4 page of the document. It looks like this is

 153 5 the outline. It says, "Quality problems at

 153 6 TJR; action plans to address quality

 153 7 problems."

 153 8 Did I read that reasonably

 153 9 correct?

 153 10 A. Yeah, that's what the document

 153 11 says.

 153 12 Q. Did you write this document?

 153 13 A. I do not recall, but I had it

 153 14 in an e-mail. That's what that e-mail says.

 153 15 Q. Sir --

 153 16 A. Attached.

 153 17 Q. Sir, you transmitted it as an

 153 18 attachment to the e-mail. It says number 1,

 153 19 "There have been continual problems with test

 153 20 equipment and calibration procedures not

 153 21 being followed at TJR."

 153 22 Did I read that correctly?

 153 23 A. Yes.

 153 24 Q. And the word that is used by

 153 25 the author of this is "continual" problems,

 154 1 correct?

 154 2 A. That's what the document says.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 47 of 345
Klun 22

 154 3 Q. "Test equipment. The machines

 154 4 were due for calibration in May '03 as

 154 5 stipulated in the specified operating

 154 6 procedure, but even a year later were not

 154 7 calibrated."

 154 8 Did I read that correctly?

 154 9 A. Yes. That's what the document

 154 10 says.

 154 11 Q. Test equipment. Equipment used

 154 12 to test the earplugs?

 154 13 A. Based on the document.

 154 14 Q. Do you remember that the

 154 15 machines were out of calibration for a number

 154 16 of years?

 154 17 MR. FIELDS: Objection. Form.

 154 18 THE WITNESS: No, I do not

 154 19 recall.

 154 20 QUESTIONS BY MR. PIRTLE:

 154 21 Q. "Procedures. Calibration

 154 22 procedure not followed."

 154 23 That's what it says here?

 154 24 A. That's what the document says.

 154 25 Q. And it says, "We operated under

 155 1 a waiver for over six months because we

 155 2 needed to address the back -- to address

 155 3 backorder issues."

 155 4 What is a waiver?

 155 5 A. It's a release of product, is a

 155 6 waiver.

 155 7 Q. It's a release of product?

 155 8 A. No, not -- it could -- it

 155 9 depends on what the waiver is. You'd have to

 155 10 look at the waiver.

 155 11 Q. Okay. Well, I'm reading this,

 155 12 and you can correct me if I'm wrong, but the

 155 13 waiver is a waiver of the fact that the

 155 14 product wasn't tested because the testing

 155 15 machines are not calibrated.

 155 16 You got another read of this?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 48 of 345
Klun 23

 155 17 MR. FIELDS: Objection. Form.

 155 18 THE WITNESS: I don't recall.

 155 19 QUESTIONS BY MR. PIRTLE:

 155 20 Q. Now, do you recall finding out

 155 21 as a result it took approximately six months

 155 22 for TJR to get all the machines calibrated?

 155 23 A. Please repeat the question.

 155 24 Q. Yes.

 155 25 Do you recall that as a result,

 156 1 it took approximately six months for TJR to

 156 2 get all the machines calibrated?

 156 3 A. No, I do not recall.

 156 4 Q. It says, "We need to put a test

 156 5 equipment maintenance program in place to

 156 6 avoid this situation."

 156 7 Do you know if that was ever

 156 8 done?

 156 9 A. I do not recall.

 156 10 Q. Let me ask you the affirmative.

 156 11 Do you affirmatively remember

 156 12 that being done, putting a maintenance --

 156 13 putting a test equipment maintenance program

 156 14 in place at TJR?

 156 15 A. I do not recall.

 156 16 Q. You were a manager at Aearo,

 156 17 weren't you?

 156 18 A. Yes.

 156 19 Q. You can agree with me that

 156 20 having testing equipment calibrated is

 156 21 important, isn't it?

 156 22 A. I would agree that having test

 156 23 equipment is important.

 156 24 Q. Having test equipment that

 156 25 works properly is important, too, correct?

 157 1 A. Correct.

 157 2 Q. It says, "Because of equipment

 157 3 measurement problems, TJR continues to

 157 4 operate with a quality waiver."

 157 5 What's a quality waiver?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 49 of 345
Klun 24

 157 6 A. It means if something is not

 157 7 measured -- there's a problem with the

 157 8 measurements but the product is okay, you can

 157 9 release on waiver.

 157 10 Q. Well, give me an example of a

 157 11 problem with a measurement.

 157 12 A. Give you an example of what?

 157 13 Say it again, sir?

 157 14 Q. Give me an example of a problem

 157 15 with a measurement. Measurement.

 157 16 A. Can you rephrase the question?

 157 17 Q. Sure.

 157 18 All I'm trying to get from you

 157 19 is an example of a problem with the

 157 20 measurement of a product that might be

 157 21 released on waiver because of that.

 157 22 A. Maybe a product has to weigh

 157 23 something so you -- somebody's balance or

 157 24 scales aren't working correctly.

 157 25 Q. Could it mean that the product

 158 1 is out of spec?

 158 2 A. It could or it couldn't.

 158 3 Q. Maybe? Maybe not?

 158 4 A. Correct.

 158 5 Q. All right. "With rapidly

 158 6 growing Combat Arms volume, do we have enough

 158 7 equipment available in order to meet the

 158 8 testing demands?"

 158 9 And that's a question, correct?

 158 10 A. That's a question.

 158 11 Q. Do you remember ever finding

 158 12 out the answer to the question?

 158 13 A. I do not recall.

 158 14 Q. "Equipment returned to hearing

 158 15 R&D has shown signs of significant wear and

 158 16 tear. We have sent the equipment out to the

 158 17 vendor for repair. Are operators properly

 158 18 trained and/or is refresher training done?"

 158 19 That's another question, right?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 50 of 345
Klun 25

 158 20 A. That's the question. That's

 158 21 what the document says.

 158 22 Q. Now, if I'm understanding what

 158 23 it's saying here, the equipment is talking

 158 24 about -- or is either like testing or

 158 25 measurement equipment that is used to -- in

 159 1 the assembly of these Combat Arms Earplugs.

 159 2 Am I right?

 159 3 MR. FIELDS: Objection. Form.

 159 4 THE WITNESS: That's what the

 159 5 document says.

 159 6 QUESTIONS BY MR. PIRTLE:

 159 7 Q. All right. Do you know what

 159 8 the signs of significant wear and tear were?

 159 9 A. I do not know.

 159 10 Q. As far as corrective actions in

 159 11 response to this e-mail, did you find out

 159 12 whether operators were properly trained?

 159 13 A. I do not recall.

 159 14 Q. Do you recall whether or not

 159 15 you found out whether refresher training was

 159 16 done?

 159 17 A. I do not recall.

 159 18 Q. You can agree with me as a

 159 19 manager at 3M it is important to have

 159 20 operators properly trained on equipment,

 159 21 correct?

 159 22 A. Agreed.

 159 23 Q. Who is Bob Zielinski?

 159 24 A. He is a contract manufacturing

 159 25 manager.

154:14 - 154:19 Klun

 154 14 Q. Do you remember that the

 154 15 machines were out of calibration for a number

 154 16 of years?

 154 17 MR. FIELDS: Objection. Form.

 154 18 THE WITNESS: No, I do not

 154 19 recall.

Re: [154:14-154:19]

Def Obj Foundation (602)

SUSTAINED

155:11 - 155:18 Klun Re: [155:11-155:18] SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 51 of 345
Klun 26

 155 11 Q. Okay. Well, I'm reading this,

 155 12 and you can correct me if I'm wrong, but the

 155 13 waiver is a waiver of the fact that the

 155 14 product wasn't tested because the testing

 155 15 machines are not calibrated.

 155 16 You got another read of this?

 155 17 MR. FIELDS: Objection. Form.

 155 18 THE WITNESS: I don't recall.

Def Obj Vague (611, 403); Foundation 

(602)

158:22 - 159:5 Klun

 158 22 Q. Now, if I'm understanding what

 158 23 it's saying here, the equipment is talking

 158 24 about -- or is either like testing or

 158 25 measurement equipment that is used to -- in

 159 1 the assembly of these Combat Arms Earplugs.

 159 2 Am I right?

 159 3 MR. FIELDS: Objection. Form.

 159 4 THE WITNESS: That's what the

 159 5 document says.

Re: [158:22-159:5]

Def Obj Vague (611, 403); Foundation 

(602)

SUSTAINED

160:13 - 160:14 Klun

 160 13 Q. Did he work for you?

 160 14 A. No.

161:1 - 161:7 Klun

 161 1 By the way, you have a Ph.D.,

 161 2 don't you?

 161 3 A. That's correct.

 161 4 Q. In what?

 161 5 A. Chemistry.

 161 6 Q. What kind of chemistry?

 161 7 A. Organic chemistry.

162:9 - 162:21 Klun

 162 9 Q. Now, Ron Kieper worked for you,

 162 10 didn't he?

 162 11 A. Ron Kieper worked for Elliott

 162 12 Berger.

 162 13 Q. Who worked for Mr. Hamer, who

 162 14 worked for you?

 162 15 A. Or at this time, Dick Knauer.

 162 16 Q. Oh, I'm sorry, who worked for

 162 17 Dick Knauer, who worked for you, right?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 52 of 345
Klun 27

 162 18 A. Right.

 162 19 Q. You were above Mr. Kieper?

 162 20 A. In the organizational chart,

 162 21 yes.

162:22 - 164:3 Klun

 162 22 Q. "Bob Z to evaluate each

 162 23 operator to assure the operator knows and is

 162 24 following the procedure and use equipment

 162 25 properly."

 163 1 It says, "Bob Z to evaluate

 163 2 testing load on existing equipment and

 163 3 whether or not more equipment is needed."

 163 4 And "Bob Z to evaluate and set

 163 5 up a rotational plan to assure equipment is

 163 6 calibrated on a rotating basis to assure at

 163 7 least one -- to assure at least two of the

 163 8 three current test devices are operational

 163 9 and get the third device recalibrated and/or

 163 10 repaired, quotation marks, testing equipment

 163 11 maintenance program."

 163 12 Did I read that reasonably

 163 13 correct?

 163 14 A. Yes, that's what the document

 163 15 says.

 163 16 Q. Do you know if any of that was

 163 17 ever done?

 163 18 A. I do not recall.

 163 19 Q. It says, "R&D/quality position.

 163 20 For many reasons, it has taken over six

 163 21 months to address equipment calibration

 163 22 problems for the Combat Arms product."

 163 23 Now, we're talking about Combat

 163 24 Arms version 2, aren't we?

 163 25 A. The document doesn't state it.

 164 1 Q. But the fact --

 164 2 A. It says "for the Combat Arms

 164 3 product."

Re: [162:22-164:3]

Def Obj 3M MIL No. 26

OVERRULED

164:4 - 164:8 Klun

 164 4 Q. Looking at the date of your

Re: [164:4-164:8]

Pltf Obj improper counter per PTO 64

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 53 of 345
Klun 28

 164 5 e-mail, November the 19th of 2004, the only

 164 6 Combat Arms product that was being made was

 164 7 version 2, wasn't it?

 164 8 A. That, I can't recall.

164:13 - 164:13 Klun

 164 13 QUESTIONS BY MR. PIRTLE:

164:14 - 166:14 Klun

 164 14 Q. What it says here is

 164 15 "calibration problems for the Combat Arms

 164 16 product," right?

 164 17 A. That's what the document says,

 164 18 yes.

 164 19 Q. "Now we have more quality

 164 20 testing problems and releasing product under

 164 21 waiver. We believe this is not an acute

 164 22 problem but rather a chronic problem that

 164 23 needs to be fixed now."

 164 24 Did I read that reasonably

 164 25 correct?

 165 1 A. You read that -- you read

 165 2 correctly what the document says.

 165 3 Q. All right. Whoever wrote this

 165 4 document underlined the word "acute" and the

 165 5 word "chronic," correct?

 165 6 A. That's what the document says.

 165 7 Q. And of course, your reading of

 165 8 the document comports with mine that acute

 165 9 would mean a single or a limited instrument,

 165 10 and chronic meaning a long-term problem,

 165 11 correct?

 165 12 MR. FIELDS: Objection. Form.

 165 13 THE WITNESS: I'd agree with

 165 14 chronic versus acute.

 165 15 QUESTIONS BY MR. PIRTLE:

 165 16 Q. "We need team perspective to

 165 17 take a holistic look at the Combat Arms

 165 18 quality program at TJR."

 165 19 That means the whole team needs

 165 20 to look at it?

Re: [164:14-166:14]

Def Obj 3M MIL No. 26

SUSTAINED

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Klun 29

 165 21 A. That's what the document says.

 165 22 Q. "We need to fix the equipment,

 165 23 ensure people are properly trained and

 165 24 procedures are being followed and/or

 165 25 modified. A joint visit by Bob and Ron to

 166 1 make a big improvement in our quality program

 166 2 is needed."

 166 3 Did I read that reasonably

 166 4 correct?

 166 5 A. Yes, you read that correctly.

 166 6 It's what the document says.

 166 7 Q. Do you know when or if the

 166 8 problems were ever fixed?

 166 9 A. I do not recall.

 166 10 Q. Do you know how long the

 166 11 problems persisted at TJR?

 166 12 MR. FIELDS: Objection. Form.

 166 13 Sorry, objection. Form.

 166 14 THE WITNESS: I do not recall.

165:7 - 165:14 Klun

 165 7 Q. And of course, your reading of

 165 8 the document comports with mine that acute

 165 9 would mean a single or a limited instrument,

 165 10 and chronic meaning a long-term problem,

 165 11 correct?

 165 12 MR. FIELDS: Objection. Form.

 165 13 THE WITNESS: I'd agree with

 165 14 chronic versus acute.

Re: [165:7-165:14]

Def Obj Misstates; Argumentative (611, 

403); Foundation (602)

SUSTAINED

166:10 - 166:14 Klun

 166 10 Q. Do you know how long the

 166 11 problems persisted at TJR?

 166 12 MR. FIELDS: Objection. Form.

 166 13 Sorry, objection. Form.

 166 14 THE WITNESS: I do not recall.

Re: [166:10-166:14]

Def Obj Vague (611, 403); Foundation 

(602)

SUSTAINED

186:19 - 186:23 Klun

 186 19 Q. Now, this is pretty late in

 186 20 your career. You don't remember dealing with

 186 21 something that the company called -- 3M at

 186 22 the time -- called Cash for Ears?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 55 of 345
Klun 30

 186 23 A. Do not recall.

186:24 - 186:25 Klun

 186 24 (Klun Exhibit 19 marked for

 186 25 identification.)

187:11 - 187:14 Klun

 187 11 This is the first page of it.

 187 12 Take a look at that and see if it helps your

 187 13 recollection.

 187 14 A. I don't recall it.

187:17 - 187:23 Klun

 187 17 This looks to be an e-mail that

 187 18 you're the author of, correct? Robert T.

 187 19 Klun?

 187 20 A. Yes, that's what the document

 187 21 says.

 187 22 Q. Looks like it was sent out 7/12

 187 23 of 2013?

188:3 - 188:8 Klun

 188 3 Q. The subject is "E-A-RCAL Cash

 188 4 for Ears, IRB, Bob's office."

 188 5 Did I read that reasonably

 188 6 correct?

 188 7 A. Yes, that's what the document

 188 8 says.

188:9 - 188:10 Klun

 188 9 Q. What does IRB stand for?

 188 10 A. That, I don't recall.

Re: [188:9-188:10]

Pltf Obj improper counter per PTO 64

SUSTAINED

189:1 - 189:8 Klun

 189 1 3, Klun, check with Ron Reed on

 189 2 how we buy/pay for merchandise for 3M

 189 3 employees.

 189 4 Who is Ron Reed?

 189 5 A. You're reading what the

 189 6 document says.

 189 7 Q. I said, "Who is Ron Reed?"

 189 8 A. He was in finance.

190:11 - 190:18 Klun

 190 11 Q. And were y'all in the -- when

 190 12 you were doing these -- this REAT testing in

Re: [190:11-190:18]

Def Obj 3M MIL No. 23

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 56 of 345
Klun 31

 190 13 the E-A-RCAL lab, did you use employees and

 190 14 relations of employees as panel members to

 190 15 test hearing protective devices?

 190 16 A. As I recall, the panel members

 190 17 could come from anywhere.

 190 18 Q. I understand that.

190:19 - 190:23 Klun

 190 19 You take them from anywhere,

 190 20 but there was a lot of employees and

 190 21 relatives of employees used, too, weren't

 190 22 there?

 190 23 A. I don't recall.

190:24 - 191:5 Klun

 190 24 Q. Well, do you remember that

 190 25 having looked at this document you were

 191 1 trying to come up with a recruitment

 191 2 mechanism whereby you could get 3M employees

 191 3 to agree to be test panel members?

 191 4 A. I'm trying to remember what the

 191 5 program was, but I'm not recalling it.

191:10 - 192:12 Klun

 191 10 This is on E-A-RCAL laboratory

 191 11 letterhead and it says, to 3M and Aearo

 191 12 Technologies employees; from Elliott Berger,

 191 13 Ron Kieper and Bob Klun. Date's July 13.

 191 14 Search -- or subject, a search for a few good

 191 15 ears. Cash for Ears, subject referral

 191 16 policy.

 191 17 Did I read that correctly?

 191 18 A. Yes, that's what the document

 191 19 says.

 191 20 Q. "As you know, the E-A-RCAL

 191 21 laboratory is responsible for product

 191 22 development of 3M's E-A-R and Peltor brand

 191 23 hearing protection products and NRR labeling

 191 24 for all hearing protection products sold in

 191 25 North America."

 192 1 Did I read that correctly?

 192 2 A. Yes, it's what the document

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 57 of 345
Klun 32

 192 3 says.

 192 4 Q. Do you agree with it?

 192 5 A. That's what the document says,

 192 6 yes.

 192 7 Q. So the E-A-RCAL laboratory that

 192 8 Mr. Berger worked at and Mr. Kieper worked at

 192 9 was responsible for product development as

 192 10 well as NRR labeling for all hearing

 192 11 protection sold in North America, true?

 192 12 A. That's what the document says.

192:13 - 192:18 Klun

 192 13 Q. Well, you wrote -- or were an

 192 14 author listed on the document.

 192 15 You don't have any memory of

 192 16 that?

 192 17 A. I don't recall writing the

 192 18 document myself.

192:19 - 193:6 Klun

 192 19 Q. "So our panel members consist

 192 20 of First Call employees and/or full-time 3M,

 192 21 Aearo Technologies employees in the

 192 22 Indianapolis area who test either during work

 192 23 or after hours. New panel members often may

 192 24 be friends or relative of current test

 192 25 subjects. We also recruit through

 193 1 independent advertising."

 193 2 That's what we talked about

 193 3 earlier, right?

 193 4 MR. FIELDS: Objection. Form.

 193 5 THE WITNESS: That's what --

 193 6 this is what the document says.

Re: [192:19-193:6]

Def Obj Foundation (602)

OVERRULED

193:17 - 195:7 Klun

 193 17 Q. You go on to explain, "All 3M,

 193 18 Aearo Technologies employees are invited to

 193 19 seek out and refer internal candidates for

 193 20 our test panels. You may nominate yourself.

 193 21 The candidates are paid for the first visit

 193 22 and training visits."

 193 23 I'm sorry, I skipped one.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 58 of 345
Klun 33

 193 24 "Potential candidates must

 193 25 undergo an initial audiometric evaluation,

 194 1 which, if passed, will then allow them to

 194 2 enter a training program consisting of 13

 194 3 additional visits."

 194 4 Did I read that correctly?

 194 5 A. Yes, that's what the document

 194 6 says.

 194 7 Q. What in the world was done in

 194 8 13 additional visits?

 194 9 A. I don't know.

 194 10 Q. "The candidate are paid for the

 194 11 first visit and the training visits. At the

 194 12 end of the training process, candidates are

 194 13 evaluated for participation in one or more

 194 14 panels. Every candidate you refer who

 194 15 possesses the initial audiometric

 194 16 evaluation -- who passes the initial

 194 17 audiometric evaluation, completes the

 194 18 training and becomes a panel member, you will

 194 19 receive a $40 award of 3M merchandise. You

 194 20 have the potential to get an award of $40 of

 194 21 3M merchandise for every 3M/Aearo

 194 22 Technologies employee that you refer who

 194 23 successfully completes the training program

 194 24 and joins the panel."

 194 25 Did I read that correctly?

 195 1 A. Yes, that's what the document

 195 2 says.

 195 3 Q. All right. So Cash for Ears, a

 195 4 few good ears, is referring to at this time

 195 5 3M paying employees to be on test panels,

 195 6 right?

 195 7 A. Whatever the document says.

195:8 - 195:9 Klun

 195 8 Q. How was the response?

 195 9 A. I do not recall.

Re: [195:8-195:9]

Pltf Obj improper counter per PTO 64

OVERRULED

196:24 - 197:4 Klun

 196 24 Q. All right. I'm just wondering,

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 59 of 345
Klun 34

 196 25 going back to the subjectivity of the test,

 197 1 did it ever occur to you that some of these

 197 2 3M employees might actually be working on

 197 3 products that they're testing?

 197 4 A. I do not recall. Do not know.

197:5 - 197:19 Klun

 197 5 Q. Do you know if people who were

 197 6 actually working on the earplugs that they're

 197 7 testing were excluded from the panel?

 197 8 A. I do not know nor recall.

 197 9 Q. Do you know if the family of

 197 10 employees who worked on earplugs were

 197 11 excluded from the panel for those earplugs?

 197 12 A. Do not recall.

 197 13 Q. Can you see how there might be

 197 14 some biased injected into the study?

 197 15 MR. FIELDS: Objection. Form.

 197 16 QUESTIONS BY MR. PIRTLE:

 197 17 Q. You can answer.

 197 18 A. It's not my area, so I have no

 197 19 comment.

Re: [197:5-197:19]

Def Obj 3M MIL No. 23

OVERRULED

197:13 - 197:19 Klun

 197 13 Q. Can you see how there might be

 197 14 some biased injected into the study?

 197 15 MR. FIELDS: Objection. Form.

 197 16 QUESTIONS BY MR. PIRTLE:

 197 17 Q. You can answer.

 197 18 A. It's not my area, so I have no

 197 19 comment.

Re: [197:13-197:19]

Def Obj Foundation (602); 

Argumentative; Vague (611, 403)

SUSTAINED

198:14 - 198:23 Klun

 198 14 Q. Mr. Klun, my name is Neil

 198 15 Overholtz, and like Mr. Pirtle told you at

 198 16 the beginning of this deposition, I also

 198 17 represent the men and women who serve in the

 198 18 United States military that have brought

 198 19 claim against 3M and Aearo, your former

 198 20 employers, regarding the Combat Arms

 198 21 version 2.

 198 22 Do you understand that?

Re: [198:14-198:23]

Def Obj Relevance (401, 402); Prejudice 

(403); 3M MIL No. 30

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 60 of 345
Klun 35

 198 23 A. Yes.

200:8 - 200:11 Klun

 200 8 You recall being involved early

 200 9 on in design meetings related to the Combat

 200 10 Arms version 2, right?

 200 11 A. I do not recall.

Re: [200:8-200:11]

Pltf Obj improper counter per PTO 64

SUSTAINED

200:12 - 200:16 Klun

 200 12 Q. Okay. Well, you've worked on

 200 13 design and development plans throughout your

 200 14 career at Aearo and 3M; is that right?

 200 15 A. I wouldn't say I did design and

 200 16 development plans.

Re: [200:12-200:16]

Pltf Obj improper counter per PTO 64

SUSTAINED

201:4 - 201:8 Klun

 201 4 Q. This is a slide that I made,

 201 5 and I'm asking you: Do you agree that part

 201 6 of developing a product includes developing a

 201 7 quality plan?

 201 8 A. Yes.

201:9 - 201:16 Klun

 201 9 Q. Is it important that the

 201 10 products that Aearo and 3M are going to sell,

 201 11 especially to our fine men and women that

 201 12 serve in the United States military, that

 201 13 those products are of good quality?

 201 14 MR. FIELDS: Objection. Form.

 201 15 THE WITNESS: I have no

 201 16 comment.

Re: [201:9-201:16]

Def Obj Vague; Compound (611, 403); 

Foundation (602)

SUSTAINED

201:20 - 202:2 Klun

 201 20 Was it important at Aearo and

 201 21 3M that the products that you were developing

 201 22 and selling to the United States military to

 201 23 be used by the service people defending our

 201 24 country, that those products be of good

 201 25 quality?

 202 1 MR. FIELDS: Same objection.

 202 2 THE WITNESS: Yes.

Re: [201:20-202:2]

Def Obj Vague (611, 403); Foundation 

(602)

OVERRULED

202:3 - 202:8 Klun

 202 3 QUESTIONS BY MR. OVERHOLTZ:

 202 4 Q. Okay. And then part of the

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 61 of 345
Klun 36

 202 5 program, when you design a product and you

 202 6 get it developed, is you want to sell the

 202 7 plugs, right?

 202 8 A. Yes.

202:9 - 202:14 Klun

 202 9 Q. Okay. Now, as part of

 202 10 designing a product like a Combat Arms

 202 11 Earplug and selling those earplugs, is it

 202 12 important that you have quality assurance

 202 13 testing of the product?

 202 14 A. Quality control testing.

Re: [202:9-202:14]

Def Obj 3M MIL No. 26

OVERRULED

202:19 - 202:22 Klun

 202 19 Q. And you want to make sure the

 202 20 product's assembled right, manufactured right

 202 21 and that it works; is that fair?

 202 22 A. That would be fair.

Re: [202:19-202:22]

Def Obj 3M MIL No. 26

OVERRULED

204:6 - 204:12 Klun

 204 6 Q. Okay. So Kaizen was a quality

 204 7 improvement tool so that the products that

 204 8 you were selling could be assured to be of

 204 9 good quality; is that right?

 204 10 A. I don't agree completely. It's

 204 11 more than just the product. It could be your

 204 12 work process, simple things like materials.

Re: [204:6-204:12]

Pltf Obj improper counter per PTO 64

SUSTAINED

206:10 - 206:21 Klun

 206 10 So when the Combat Arms was

 206 11 being developed in 1999 when you had begun

 206 12 working at Aearo in the laboratory

 206 13 department, was one of the goals for the

 206 14 Combat Arms version 2 to avoid any --

 206 15 A. In the -- I would -- I wasn't

 206 16 involved in the lab until 2000, 2001,

 206 17 somewhere in that time frame.

 206 18 Q. Okay. You were involved with

 206 19 the Combat Arms, though, back as early as

 206 20 1999, right?

 206 21 A. I disagree.

206:22 - 207:9 Klun

 206 22 Q. Okay. Well, let me ask you

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 62 of 345
Klun 37

 206 23 this: Do you remember that one of the goals

 206 24 of the development plan for the Combat Arms

 206 25 version 2 in 1999 was to avoid any incorrect

 207 1 assembly and to have zero defects?

 207 2 A. I do not recall that.

 207 3 Q. All right. You think that

 207 4 would be a good goal to have for an earplug

 207 5 that's going to be used by servicemen and

 207 6 women in the field?

 207 7 A. Yes.

 207 8 (Klun Exhibit 20 marked for

 207 9 identification.)

207:15 - 207:18 Klun

 207 15 this is a May 20, 1999 meeting memorandum

 207 16 that lists yourself from an A. Shaver, and

 207 17 the subject being the Combat Arms project.

 207 18 Do you see that?

207:25 - 208:1 Klun

 207 25 THE WITNESS: Yes, I see the

 208 1 document.

208:3 - 208:20 Klun

 208 3 Q. Okay. And A. Shaver, was that

 208 4 Annette Shaver?

 208 5 A. Yes.

 208 6 Q. And she worked in quality over

 208 7 at Aearo?

 208 8 A. Yes.

 208 9 Q. And you were sent this memo,

 208 10 B. Klun, right?

 208 11 A. That's what the document says.

 208 12 Q. And we talked about B. Myers.

 208 13 That would be Brian Myers from marketing,

 208 14 right?

 208 15 A. Yes.

 208 16 Q. How about S. Todor? Is that

 208 17 Steve Todor?

 208 18 A. Yes.

 208 19 Q. What was his role?

 208 20 A. Quality.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 63 of 345
Klun 38

209:22 - 210:19 Klun

 209 22 Q. All right. And you'd expect

 209 23 these memorandum from 1999 that were written

 209 24 by people like Annette Shaver to you to

 209 25 accurately reflect what was going on at the

 210 1 time, right?

 210 2 A. I go with what the document

 210 3 says.

 210 4 Q. I mean, you didn't have any

 210 5 reason to believe that Annette Shaver would

 210 6 have misrepresented what was happening at the

 210 7 time, right?

 210 8 A. No, I agree with what the

 210 9 document says.

 210 10 Q. Okay. And so seeing this memo,

 210 11 you can see that you were involved in early

 210 12 meetings in May of 1999 regarding assembly

 210 13 and avoiding any defects with the Combat Arms

 210 14 assembly, right?

 210 15 A. It doesn't say anything about

 210 16 meetings. The document says, "technical and

 210 17 manufacturing will address assembly to avoid

 210 18 incorrect assembly, with the goal being zero

 210 19 defects."

211:19 - 211:25 Klun

 211 19 Q. You recall -- you recall

 211 20 learning that Aearo was going to get the

 211 21 filters from the ISL in France?

 211 22 A. I do not recall that.

 211 23 Q. Did you learn that at some

 211 24 point in time?

 211 25 A. No, I -- I don't recall that.

Re: [211:19-211:25]

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SUSTAINED

212:10 - 214:24 Klun

 212 10 MR. OVERHOLTZ: It's a

 212 11 different document. I'm going to mark

 212 12 BK-151 as Exhibit 21.

 212 13 (Klun Exhibit 21 marked for

 212 14 identification.)

 212 15 QUESTIONS BY MR. OVERHOLTZ:

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 64 of 345
Klun 39

 212 16 Q. And this is another meeting

 212 17 memorandum from Annette Shaver from July 21,

 212 18 1999.

 212 19 Do you see that, Mr. Klun?

 212 20 A. Yes, I see that's what the

 212 21 document says.

 212 22 Q. Right. And it says that a

 212 23 meeting was held on July 14th of 1999, right?

 212 24 A. That's what the document says.

 212 25 Q. And the attending were

 213 1 K. Teeters, S. Todor, A. Shaver and yourself,

 213 2 right?

 213 3 A. Yes.

 213 4 Q. Along with an --

 213 5 A. Plus a few others.

 213 6 Q. Right. Along with a few

 213 7 others, including Brian Myers from marketing,

 213 8 right?

 213 9 A. Correct.

 213 10 Q. Okay. And if you can look with

 213 11 me at the -- further down in this document on

 213 12 the next slide, there's a section called

 213 13 Product Design, Preliminary.

 213 14 And it says, "The diameter of

 213 15 the filter versus the diameter of the stem

 213 16 was discussed. According to currently

 213 17 available drawings, some filter could be too

 213 18 large for the stem if the maximum tolerance

 213 19 is allowed."

 213 20 Do you see that?

 213 21 A. Yeah, I see what the document

 213 22 says.

 213 23 Q. And so at this meeting that you

 213 24 were at back in July of 1999, it was

 213 25 discussed that the filter being too large for

 214 1 the stem could mean the inability to assembly

 214 2 {sic} or cracking the stem, right?

 214 3 A. That's what the document says,

 214 4 "could mean," "could mean."

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 65 of 345
Klun 40

 214 5 Q. Do you know if the drawings

 214 6 were ever changed or these tolerances were

 214 7 ever changed to make sure that this didn't

 214 8 happen?

 214 9 A. I do not know nor recall.

 214 10 Q. I mean, who would have been in

 214 11 charge of these drawings back in 1999?

 214 12 A. The R&D department.

 214 13 Q. Would that have been Bob Falco

 214 14 and Doty?

 214 15 A. Whoever was in Dick Knauer's

 214 16 shop --

 214 17 Q. Okay.

 214 18 A. -- working on it.

 214 19 Q. And do you believe that Bob

 214 20 Falco or Doty ever changed any of these

 214 21 drawings that changed the tolerances for

 214 22 these filters and these plastic stems so that

 214 23 this stem cracking wouldn't be a problem?

 214 24 A. I do not know nor recall.

214:25 - 215:8 Klun

 214 25 Q. Okay. Now, if we can go

 215 1 forward in time -- this is still summer

 215 2 of 1999. By this point in time, by summer

 215 3 of 1999, the Combat Arms project had become

 215 4 very important for you; is that right?

 215 5 A. I have no -- I don't recall how

 215 6 important or not important it was.

 215 7 Q. Well, let's look and see what

 215 8 you wrote.

215:14 - 215:19 Klun

 215 14 Q. We'll mark as Exhibit Number 23

 215 15 {sic}, and this is BK-152. This is an e-mail

 215 16 from July 23, 1999.

 215 17 Do you see that?

 215 18 A. Yes, I see the e-mail on the

 215 19 screen.

216:14 - 217:10 Klun

 216 14 Q. So two days after receiving

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 66 of 345
Klun 41

 216 15 those meeting minutes, you write an e-mail to

 216 16 Brian Myers over in marketing regarding the

 216 17 Combat Arms review meeting, right?

 216 18 A. That's what this document says.

 216 19 Q. And you say, "Attached is an

 216 20 agenda for our Combat Arms meeting on

 216 21 July 30. Please work hard to complete the

 216 22 action items from our last meeting. We need

 216 23 to make progress toward project

 216 24 implementation."

 216 25 Right?

 217 1 A. That's what the document says.

 217 2 Q. And that's because you had

 217 3 learned that this project, through these

 217 4 design meeting minutes, was going to be

 217 5 extremely profitable for Aearo, right?

 217 6 A. I don't agree with that.

 217 7 Q. And sales orders were already

 217 8 coming in, right?

 217 9 A. I have no recall or knowledge

 217 10 of that.

217:11 - 217:15 Klun

 217 11 (Klun Exhibit 23 marked for

 217 12 identification.)

 217 13 QUESTIONS BY MR. OVERHOLTZ:

 217 14 Q. All right. Well, let's see

 217 15 what we can find out about that.

Re: [217:11-217:15]

Def Obj Relevance (401, 402); 

Argumentative (611, 403)

SUSTAINED

218:5 - 218:10 Klun

 218 5 Q. If we go to page 6, you see

 218 6 that there is a list of who the project

 218 7 manager is, and that's Brian Myers from

 218 8 marketing, right?

 218 9 A. Yes, that's what the document

 218 10 says. He's the project manager.

219:2 - 219:17 Klun

 219 2 Q. Bob Klun, right?

 219 3 A. In quality.

 219 4 Q. So you were in quality then,

 219 5 right?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 67 of 345
Klun 42

 219 6 A. Correct.

 219 7 Q. Okay. So just so -- we can go

 219 8 up -- go back up to page -- the top of the

 219 9 page there, the slide before.

 219 10 The project we're talking about

 219 11 here is the Combat Arms plug, right?

 219 12 A. That's what the document says.

 219 13 Q. And under Description and

 219 14 Positioning, it said this was going to be a

 219 15 nonlinear plug sold to the military and as a

 219 16 shooter's plug, right?

 219 17 A. That's what the document says.

219:18 - 219:25 Klun

 219 18 Q. And so you guys knew back in

 219 19 July of '99 that you were going to sell this

 219 20 both to the military and on the commercial

 219 21 shelves for people that could use on shooting

 219 22 ranges, right?

 219 23 MR. FIELDS: Objection to form.

 219 24 THE WITNESS: I personally

 219 25 don't recall.

Re: [219:18-219:25]

Def Obj Misstates; Vague (611, 403); 

Foundation (602); Prejudice (403); 

Relevance (401, 402)

OVERRULED

220:2 - 220:3 Klun

 220 2 Q. You don't remember that?

 220 3 A. No.

Re: [220:2-220:3]

Pltf Obj cumulative

OVERRULED

220:4 - 220:7 Klun

 220 4 Q. But you'd expect the documents

 220 5 to be accurate that were being circulated

 220 6 among your team back in '99, right?

 220 7 A. That's what the document says.

221:15 - 221:22 Klun

 221 15 Q. You were a VP at 3M and Aearo

 221 16 selling hearing protection, right?

 221 17 A. That's correct. Not in 1999,

 221 18 that's all. I thought I was answering that

 221 19 question.

 221 20 Q. Okay. But later on you were,

 221 21 right?

 221 22 A. That's correct.

222:3 - 222:15 Klun Re: [222:3-222:15] OVERRULED

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Klun 43

 222 3 Q. And forecast, that's what

 222 4 you're predicting of how much money you're

 222 5 going to make, right?

 222 6 A. That's what the document says.

 222 7 Q. So in year one, it looks like

 222 8 you were hoping to sell 300 -- is that

 222 9 million or thousand units? 300,000 units?

 222 10 A. I'm just reading what the

 222 11 document said.

 222 12 Q. We can do the math, because if

 222 13 you're selling 300,000 at $5 a piece, that'd

 222 14 be 1.5 million, right?

 222 15 A. Yeah, that math adds up.

Def Obj 3M MIL No. 7

222:16 - 222:23 Klun

 222 16 Q. Okay. So you were going to

 222 17 sell these things for $5 apiece, and then it

 222 18 lists how much it actually cost you to make

 222 19 them.

 222 20 Do you see that?

 222 21 MR. FIELDS: Objection. Form.

 222 22 THE WITNESS: That's what the

 222 23 document says.

Re: [222:16-222:23]

Def Obj Foundation (602)

OVERRULED

222:24 - 222:24 Klun

 222 24 QUESTIONS BY MR. OVERHOLTZ:

222:25 - 223:2 Klun

 222 25 Q. And for average cost, it says

 223 1 1.10, right?

 223 2 A. That's what the document says.

Re: [222:25-223:2]

Def Obj 3M MIL No. 7

OVERRULED

223:3 - 223:6 Klun

 223 3 Q. That's $3.90 profit on every

 223 4 plug, right?

 223 5 MR. FIELDS: Objection. Form.

 223 6 THE WITNESS: I don't know.

Re: [223:3-223:6]

Def Obj Foundation (602)

SUSTAINED

223:8 - 223:13 Klun

 223 8 Q. You were forecasting in July

 223 9 of '99 when you were having these design and

 223 10 development meetings and you told Brian

 223 11 Myers, hey, we need to get this project

 223 12 going, that you were going to make $3.90

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 69 of 345
Klun 44

 223 13 profit per pair of plugs, right?

223:15 - 223:18 Klun

 223 15 THE WITNESS: Right. I don't

 223 16 agree with what you said that I told

 223 17 Brian Myers. The words you're using,

 223 18 I don't agree with that.

223:20 - 224:6 Klun

 223 20 Q. Yeah, let's just look -- just

 223 21 go back, just refresh ourselves what you

 223 22 said.

 223 23 You told Brian on slide 21

 223 24 that, "Please" -- one more slide up, Zach.

 223 25 "Please work hard to complete

 224 1 the action items from our last meeting. We

 224 2 need to make progress toward project

 224 3 implementation."

 224 4 That's what you told Brian,

 224 5 right?

 224 6 A. Right.

224:23 - 225:7 Klun

 224 23 Q. And here this shows that the

 224 24 percent margin that you were forecasting for

 224 25 these Combat Arms Earplugs was 78 percent,

 225 1 right?

 225 2 A. That's what the document says.

 225 3 Q. And so in year one, you're

 225 4 forecasting 1.2 million in profits; year two,

 225 5 1.6 million in profits; and year three, 2

 225 6 million in profits, right?

 225 7 A. That's what the document says.

Re: [224:23-225:7]

Def Obj 3M MIL No. 7

OVERRULED

227:2 - 227:5 Klun

 227 2 Q. But you told me earlier that

 227 3 part of the process is you got to do quality

 227 4 checks on these devices, right, before you

 227 5 sell them?

Re: [227:2-227:5]

Pltf Obj improper counter per PTO 64

SUSTAINED

227:7 - 227:9 Klun

 227 7 THE WITNESS: I'm focusing on

 227 8 specifying purchase tools. That's not

 227 9 a quality function, purchasing tools.

Re: [227:7-227:9]

Pltf Obj improper counter per PTO 64

SUSTAINED

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Klun 45

227:24 - 228:2 Klun

 227 24 And if you can look with me,

 227 25 this is Friday, July 30, 1999 meeting agenda.

 228 1 Do you see that?

 228 2 A. Yes.

228:8 - 228:18 Klun

 228 8 Q. All right. And Topic Number 1,

 228 9 you were the facilitator of that topic,

 228 10 right?

 228 11 A. Review agenda? That's what

 228 12 the -- that's what -- review progress -- I

 228 13 reviewed the agenda.

 228 14 Q. Yeah.

 228 15 And it says, "Review agenda,

 228 16 purpose/process/payoff."

 228 17 Right?

 228 18 A. Right.

230:3 - 230:8 Klun

 230 3 (Klun Exhibit 24 marked for

 230 4 identification.)

 230 5 QUESTIONS BY MR. OVERHOLTZ:

 230 6 Q. So we'll mark exhibit BK-153 as

 230 7 Exhibit 24. It's an August 3, 1999

 230 8 memorandum to several people.

230:12 - 231:9 Klun

 230 12 Q. Okay. So at the top, you see

 230 13 that Annette Shaver in quality e-mails -- or

 230 14 sends this memo to yourself as well as

 230 15 several other people, including Brian Myers

 230 16 and Steve Todor and Dick Knauer, and the

 230 17 subject is the Combat Arms plugs.

 230 18 Do you see that?

 230 19 A. Yes.

 230 20 Q. And it says, "A design review

 230 21 meeting was held on July 30, 1999, to discuss

 230 22 the progress towards the manufacture and

 230 23 delivery of Combat Arms Earplugs," right?

 230 24 A. Yes.

 230 25 Q. And July 30th of '99, is the

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 71 of 345
Klun 46

 231 1 date of the agenda that you had sent Brian

 231 2 Myers that we looked at at the last exhibit,

 231 3 right?

 231 4 A. Yes.

 231 5 Q. Okay. So I want to turn over

 231 6 to the second page, if we can, and there's a

 231 7 section called Design Acceptance Criteria.

 231 8 Do you see that?

 231 9 A. Yes.

231:10 - 234:14 Klun

 231 10 Q. Okay. And it says, "The test

 231 11 to be utilized has been identified as an

 231 12 acoustic resistance test."

 231 13 Do you see that?

 231 14 A. Yes.

 231 15 Q. Acoustic resistance test.

 231 16 That's talking about those ARC machines that

 231 17 Mr. Pirtle showed you that memo that you sent

 231 18 about Ron Kieper and Rob Zielinski going down

 231 19 to Mexico to check on them.

 231 20 Do you recall that?

 231 21 A. Yes.

 231 22 Q. Okay. So the acoustic

 231 23 resistance test was also known as the ARC

 231 24 machine, right?

 231 25 A. Yes.

 232 1 Q. It says, "The equipment is

 232 2 currently in the lab at E-A-R. This

 232 3 equipment will be used for the first order."

 232 4 Right?

 232 5 A. Yes.

 232 6 Q. "New test equipment will cost

 232 7 approximately $700."

 232 8 Right?

 232 9 A. Yeah, that's what it says.

 232 10 Q. That's not very expensive for a

 232 11 quality control test device, right?

 232 12 MR. FIELDS: Objection to form.

 232 13 THE WITNESS: I have no idea.

Re: [231:10-234:14]

Def Obj 3M MIL No. 26

OVERRULED

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Klun 47

 232 14 QUESTIONS BY MR. OVERHOLTZ:

 232 15 Q. I mean, you feel like Aearo

 232 16 could afford that back then in '99 since we

 232 17 saw you-all were projecting you guys were

 232 18 going to make about $5 million in three years

 232 19 in profits on the Combat Arms?

 232 20 MR. FIELDS: Objection to form.

 232 21 THE WITNESS: It says, the

 232 22 "test equipment will cost $700."

 232 23 QUESTIONS BY MR. OVERHOLTZ:

 232 24 Q. Right.

 232 25 So back in '99 when you were in

 233 1 quality, you think Aearo would have had no

 233 2 problem affording however many new machines

 233 3 they might need to make sure these earplugs

 233 4 were assembled and manufactured to good

 233 5 quality standards?

 233 6 A. Can you repeat -- rephrase the

 233 7 question?

 233 8 Q. Sure.

 233 9 You worked at Aearo back in

 233 10 1999, right, and you're running this meeting,

 233 11 right?

 233 12 A. Am I running it, or is Annette

 233 13 running it?

 233 14 Q. Well, Annette sends the memo,

 233 15 but you sent the agenda, and it said you were

 233 16 going to facilitate going through the agenda.

 233 17 Remember?

 233 18 A. All right. Okay. Yes.

 233 19 Q. Okay. And so back then when

 233 20 you were doing this and having these meetings

 233 21 about the Combat Arms plugs, you think that

 233 22 Aearo could have afforded $700 per test

 233 23 equipment to buy however many new machines

 233 24 they needed to make sure that these Combat

 233 25 Arms plugs for the soldiers would be

 234 1 manufactured and assembled to good quality

 234 2 standards?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 73 of 345
Klun 48

 234 3 MR. FIELDS: Objection. Form.

 234 4 THE WITNESS: $700 for the

 234 5 equipment.

 234 6 QUESTIONS BY MR. OVERHOLTZ:

 234 7 Q. So that's a yes?

 234 8 A. I would assume, yes.

 234 9 Q. Okay. Action items.

 234 10 "R. Knauer," Dick Knauer, "will get

 234 11 information about where to obtain the test

 234 12 equipment to J. Jurney by this afternoon."

 234 13 Do you see that?

 234 14 A. Yes.

232:10 - 232:13 Klun

 232 10 Q. That's not very expensive for a

 232 11 quality control test device, right?

 232 12 MR. FIELDS: Objection to form.

 232 13 THE WITNESS: I have no idea.

Re: [232:10-232:13]

Def Obj Foundation (602); Vague (611, 

403)

SUSTAINED

232:13 - 232:22 Klun

 232 13 THE WITNESS: I have no idea.

 232 14 QUESTIONS BY MR. OVERHOLTZ:

 232 15 Q. I mean, you feel like Aearo

 232 16 could afford that back then in '99 since we

 232 17 saw you-all were projecting you guys were

 232 18 going to make about $5 million in three years

 232 19 in profits on the Combat Arms?

 232 20 MR. FIELDS: Objection to form.

 232 21 THE WITNESS: It says, the

 232 22 "test equipment will cost $700."

Re: [232:13-232:22]

Def Obj Vague (611, 403); Foundation 

(602)

SUSTAINED

232:15 - 232:22 Klun

 232 15 Q. I mean, you feel like Aearo

 232 16 could afford that back then in '99 since we

 232 17 saw you-all were projecting you guys were

 232 18 going to make about $5 million in three years

 232 19 in profits on the Combat Arms?

 232 20 MR. FIELDS: Objection to form.

 232 21 THE WITNESS: It says, the

 232 22 "test equipment will cost $700."

Re: [232:15-232:22]

Def Obj 3M MIL No. 7; 3M MIL No. 26

SUSTAINED

233:19 - 234:5 Klun

 233 19 Q. Okay. And so back then when

Re: [233:19-234:5]

Def Obj Vague; Compound (611, 403)

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 74 of 345
Klun 49

 233 20 you were doing this and having these meetings

 233 21 about the Combat Arms plugs, you think that

 233 22 Aearo could have afforded $700 per test

 233 23 equipment to buy however many new machines

 233 24 they needed to make sure that these Combat

 233 25 Arms plugs for the soldiers would be

 234 1 manufactured and assembled to good quality

 234 2 standards?

 234 3 MR. FIELDS: Objection. Form.

 234 4 THE WITNESS: $700 for the

 234 5 equipment.

235:1 - 236:14 Klun

 235 1 QUESTIONS BY MR. OVERHOLTZ:

 235 2 Q. All right. And these quality

 235 3 assurance test machines, they were important,

 235 4 right?

 235 5 A. It was part of the test

 235 6 equipment.

 235 7 Q. These ARC boxes, they were

 235 8 important test equipment for the company that

 235 9 was going to assemble and make these plugs,

 235 10 right?

 235 11 A. Test equipment is important.

 235 12 Q. Okay. And because one of the

 235 13 things -- Zach, if we can bring up slide 28.

 235 14 And again, Mr. Klun, this is a

 235 15 slide that I made. Okay? It's going to be

 235 16 up on your screen.

 235 17 One of the things that you knew

 235 18 is that without proper calibration and

 235 19 working ARC boxes, Aearo cannot confirm that

 235 20 the Combat Arms version 2 meets quality

 235 21 standards, right?

 235 22 A. This is a slide you created?

 235 23 Q. It is. And I'm asking: Is

 235 24 that something you knew?

 235 25 A. I would say that's more

 236 1 specific.

 236 2 Q. Okay. But do you agree that if

Re: [235:1-236:14]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 75 of 345
Klun 50

 236 3 these ARC boxes weren't working or weren't

 236 4 calibrated, then Aearo can't confirm that the

 236 5 Combat Arms version 2s met quality standards?

 236 6 Right?

 236 7 MR. FIELDS: Object to form.

 236 8 THE WITNESS: I'll agree.

 236 9 QUESTIONS BY MR. OVERHOLTZ:

 236 10 Q. Okay. And that's why -- and

 236 11 Mr. Pirtle showed you this. I think it was

 236 12 exhibit -- was it Exhibit 17, your e-mail

 236 13 from November 19th of 2004, to Ron Kieper

 236 14 regarding Bob and Ron traveling down to TJR?

236:2 - 236:8 Klun

 236 2 Q. Okay. But do you agree that if

 236 3 these ARC boxes weren't working or weren't

 236 4 calibrated, then Aearo can't confirm that the

 236 5 Combat Arms version 2s met quality standards?

 236 6 Right?

 236 7 MR. FIELDS: Object to form.

 236 8 THE WITNESS: I'll agree.

Re: [236:2-236:8]

Def Obj Vague (611, 403); Foundation 

(602); 702

OVERRULED

236:18 - 240:9 Klun

 236 18 QUESTIONS BY MR. OVERHOLTZ:

 236 19 Q. You send that memo, along with

 236 20 the plans for Bob and Ron to go down to TJR

 236 21 in Mexico to check on these ARC machines in

 236 22 2004, right?

 236 23 A. Yes.

 236 24 Q. And because -- if we go to

 236 25 slide 31, Zach.

 237 1 You, in that memo that you

 237 2 sent, the quality problems that TJR said

 237 3 that -- that under the test equipment, the

 237 4 machines were due for calibration in May

 237 5 of '03, as stipulated in the specified

 237 6 operating procedure, but even a year later

 237 7 were not calibrated.

 237 8 That's a problem, right?

 237 9 A. At TJR, not calibrated.

 237 10 Q. Right.

Re: [236:18-240:9]

Def Obj 3M MIL No. 26

OVERRULED

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Klun 51

 237 11 They weren't calibrated at TJR,

 237 12 and that was a quality problem, right?

 237 13 A. So equipment -- test equipment

 237 14 and calibration issue.

 237 15 Q. Okay. And Mr. Pirtle asked you

 237 16 about the waiver that had been operated under

 237 17 for six months to address backorder issues

 237 18 under number 2.

 237 19 Do you recall those questions?

 237 20 A. Yes.

 237 21 Q. And number 3, because of the

 237 22 equipment measurement problems with those ARC

 237 23 machines, TJR continues to operate with a

 237 24 quality waiver.

 237 25 Do you remember Mr. Pirtle

 238 1 asking you about that?

 238 2 A. Yes.

 238 3 Q. Those waivers, you approved

 238 4 those waivers, right?

 238 5 MR. FIELDS: Objection to form.

 238 6 THE WITNESS: A team approves a

 238 7 waiver of various functions.

 238 8 QUESTIONS BY MR. OVERHOLTZ:

 238 9 Q. Okay. And those waivers would

 238 10 have been approved under your direction,

 238 11 right?

 238 12 MR. FIELDS: Objection to form.

 238 13 THE WITNESS: I approve for

 238 14 quality.

 238 15 QUESTIONS BY MR. OVERHOLTZ:

 238 16 Q. Okay. So if we can go now to

 238 17 slide 35, I want to see what was happening

 238 18 regarding these ARC machines back in the

 238 19 summer of '99, five years before you sent

 238 20 that memo about the problems down in Mexico.

 238 21 Okay?

 238 22 MR. FIELDS: Objection to form.

 238 23 (Klun Exhibit 25 marked for

 238 24 identification.)

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 77 of 345
Klun 52

 238 25 

 239 1 QUESTIONS BY MR. OVERHOLTZ:

 239 2 Q. So I'm going to mark as

 239 3 Exhibit 25, P6023. This is a memo from Ron

 239 4 Kieper to Dick Knauer from June 1st of 1999.

 239 5 And let me know when you can

 239 6 see that, Mr. Klun.

 239 7 A. Yes, I see.

 239 8 Q. Okay. And so in June 1st of

 239 9 '99, Ron Kieper tells Dick Knauer regarding

 239 10 acoustics measures on the Combat Arms plugs

 239 11 that "20 Combat Arms plugs were given to me

 239 12 so their acoustic resistance could be

 239 13 checked."

 239 14 Do you see that?

 239 15 A. Yes.

 239 16 Q. And he goes on, "After setting

 239 17 up the Etymotic Research acoustic resistance

 239 18 measuring module, ARMM, per its instructions,

 239 19 each of the 20 plugs were measured," and he

 239 20 gives the measurement values.

 239 21 Do you see that?

 239 22 A. Yes.

 239 23 (Klun Exhibit 26 marked for

 239 24 identification.)

 239 25 

 240 1 QUESTIONS BY MR. OVERHOLTZ:

 240 2 Q. And then if we can go to the

 240 3 next exhibit, the next slide, Zach, this is

 240 4 Exhibit Number 26. This is P1138.

 240 5 This is a monthly report from

 240 6 Elliott Berger to Brian Myers on July 1st of

 240 7 1999.

 240 8 Do you see that?

 240 9 A. Yes.

237:15 - 238:2 Klun

 237 15 Q. Okay. And Mr. Pirtle asked you

 237 16 about the waiver that had been operated under

 237 17 for six months to address backorder issues

Re: [237:15-238:2]

Def Obj Cumulative (403)

OVERRULED

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Klun 53

 237 18 under number 2.

 237 19 Do you recall those questions?

 237 20 A. Yes.

 237 21 Q. And number 3, because of the

 237 22 equipment measurement problems with those ARC

 237 23 machines, TJR continues to operate with a

 237 24 quality waiver.

 237 25 Do you remember Mr. Pirtle

 238 1 asking you about that?

 238 2 A. Yes.

238:3 - 238:7 Klun

 238 3 Q. Those waivers, you approved

 238 4 those waivers, right?

 238 5 MR. FIELDS: Objection to form.

 238 6 THE WITNESS: A team approves a

 238 7 waiver of various functions.

Re: [238:3-238:7]

Def Obj Vague; Misstates (611, 403)

OVERRULED

238:9 - 238:14 Klun

 238 9 Q. Okay. And those waivers would

 238 10 have been approved under your direction,

 238 11 right?

 238 12 MR. FIELDS: Objection to form.

 238 13 THE WITNESS: I approve for

 238 14 quality.

Re: [238:9-238:14]

Def Obj Vague; Misstates (611, 403)

OVERRULED

238:16 - 238:24 Klun

 238 16 Q. Okay. So if we can go now to

 238 17 slide 35, I want to see what was happening

 238 18 regarding these ARC machines back in the

 238 19 summer of '99, five years before you sent

 238 20 that memo about the problems down in Mexico.

 238 21 Okay?

 238 22 MR. FIELDS: Objection to form.

 238 23 (Klun Exhibit 25 marked for

 238 24 identification.)

Re: [238:16-238:24]

Def Obj Relevance (401, 402)

OVERRULED

240:10 - 240:18 Klun

 240 10 MR. FIELDS: This is a slide

 240 11 that contains a representation of the

 240 12 document, right?

 240 13 MR. OVERHOLTZ: We've blown up

 240 14 part of the document, part of Exhibit

Re: [240:10-240:18]

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SUSTAINED

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Klun 54

 240 15 Number 26.

 240 16 MR. FIELDS: Right. But that

 240 17 heading is not from the document, so

 240 18 I'm just being clear.

240:19 - 240:24 Klun

 240 19 MR. OVERHOLTZ: That heading

 240 20 there, July 1, '99, Berger reports to

 240 21 marketing about ARC testing --

 240 22 MR. FIELDS: Yeah.

 240 23 MR. OVERHOLTZ: -- that's my

 240 24 heading.

Re: [240:19-240:24]

Pltf Obj attorney colloquy; 403

SUSTAINED

241:2 - 241:2 Klun

 241 2 QUESTIONS BY MR. OVERHOLTZ:

241:3 - 241:13 Klun

 241 3 Q. But there's a section on the

 241 4 bottom of the document called Product

 241 5 Development, and there's a sentence that

 241 6 begins, "Per REK's request."

 241 7 Do you see that?

 241 8 A. Yes.

 241 9 Q. And it says, "Per REK's

 241 10 request" --

 241 11 REK, did you know that to be

 241 12 Dick Knauer?

 241 13 A. Yes.

Re: [241:3-241:13]

Def Obj 3M MIL No. 26

OVERRULED

241:14 - 241:22 Klun

 241 14 Q. -- "a memo was written to

 241 15 document the acoustic resistance measurements

 241 16 made on 20 Combat Arms plugs in April 1999.

 241 17 Five production plugs were measured this

 241 18 month. The acceptable" -- "the, quote,

 241 19 'acceptable' range of values was set from the

 241 20 results of the measurements."

 241 21 Do you see that?

 241 22 A. Yes.

Re: [241:14-241:22]

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241:23 - 242:4 Klun

 241 23 Q. And those -- having an

 241 24 acceptable range of values was important to

 241 25 make sure those plugs fell within those

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 242 1 acceptable ranges, correct?

 242 2 MR. FIELDS: Object to form.

 242 3 THE WITNESS: That's what Ron

 242 4 Kieper wrote.

242:5 - 242:11 Klun

 242 5 QUESTIONS BY MR. OVERHOLTZ:

 242 6 Q. That was Kieper's role, to

 242 7 figure out those acceptable values to make

 242 8 sure the plugs that were being manufactured

 242 9 and assembly {sic} would fall within the

 242 10 acceptable range, right?

 242 11 A. Yes.

243:11 - 244:10 Klun

 243 11 (Klun Exhibit 27 marked for

 243 12 identification.)

 243 13 QUESTIONS BY MR. OVERHOLTZ:

 243 14 Q. Okay. And so if we can go to

 243 15 the next slide, we'll mark this as Exhibit

 243 16 Number 27 then, which is RZ-5050A. This is

 243 17 just a picture of an ARC box.

 243 18 Have you ever seen one of these

 243 19 before?

 243 20 A. No.

 243 21 Q. So you had never seen one of

 243 22 these ARC boxes whenever you sent Ron Kieper

 243 23 and Rob Zielinski down to Mexico to see what

 243 24 was going on, right?

 243 25 A. That's correct.

 244 1 Q. Okay. And you see that little

 244 2 plug sitting on top of the ARC machine there?

 244 3 Is that a Combat Arms version 2 dual-ended

 244 4 plug?

 244 5 A. It appears to be.

 244 6 Q. And you see on the top of that

 244 7 machine it says "ARC number 4," and then

 244 8 there's an upper and lower limit.

 244 9 Do you see that?

 244 10 A. Yes.

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 245 13 Q. And it was your understanding,

 245 14 Mr. Klun, that when you checked the plug, you

 245 15 checked it by sticking the Combat Arms on top

 245 16 of the ARC machine like that, and it was

 245 17 supposed to fall within the range, right?

 245 18 MR. FIELDS: Objection to form.

 245 19 THE WITNESS: I don't recall.

 245 20 I never saw or did -- saw an ARC

 245 21 machine, nor did a test.

Def Obj Foundation (602); 702; 

Compound (611, 403)

245:13 - 249:3 Klun

 245 13 Q. And it was your understanding,

 245 14 Mr. Klun, that when you checked the plug, you

 245 15 checked it by sticking the Combat Arms on top

 245 16 of the ARC machine like that, and it was

 245 17 supposed to fall within the range, right?

 245 18 MR. FIELDS: Objection to form.

 245 19 THE WITNESS: I don't recall.

 245 20 I never saw or did -- saw an ARC

 245 21 machine, nor did a test.

 245 22 QUESTIONS BY MR. OVERHOLTZ:

 245 23 Q. Okay. So if we can look -- if

 245 24 we can move forward to slide 42, Zach.

 245 25 What we now know is that by the

 246 1 summer of 1999, Aearo had decided that the

 246 2 quality assurance testing that would be done

 246 3 on the Combat Arms version 2 plug would be

 246 4 this acoustic resistance checker, right?

 246 5 A. So can you rephrase or repeat?

 246 6 Q. Sure.

 246 7 A. Is this a question?

 246 8 Q. Yeah.

 246 9 By the summer of '99 -- you can

 246 10 see I added under Quality Assurance Testing,

 246 11 "acoustic resistance checker" there in

 246 12 yellow. And I'm just asking you: By summer

 246 13 of '99, you guys had decided that these

 246 14 acoustic resistance checkers, that was going

 246 15 to be how you tested quality control, quality

 246 16 assurance testing, right?

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 246 17 A. I don't recall the entire test

 246 18 program.

 246 19 Q. That was certainly what we read

 246 20 in those memos from the summer of '99, right?

 246 21 A. I'd have to see the memo again.

 246 22 This is your slide. It says --

 246 23 Q. It is.

 246 24 A. And what I thought I heard you

 246 25 say is that this is -- is this the only test?

 247 1 Is that what you said?

 247 2 Q. The acoustic resistance checker

 247 3 was a quality control test that was being

 247 4 done on the Combat Arms Earplug.

 247 5 A. I agree. I agree.

 247 6 (Klun Exhibit 28 marked for

 247 7 identification.)

 247 8 QUESTIONS BY MR. OVERHOLTZ:

 247 9 Q. Okay. I may have asked the

 247 10 question bad. I'm sorry.

 247 11 So we're looking at an

 247 12 August 3rd memo. If we can go to slide 48.

 247 13 This would be Exhibit Number 28. It's

 247 14 BK-154.

 247 15 This is an August 16, 1999

 247 16 Combat Arms plug memorandum from Annette

 247 17 Shaver.

 247 18 Do you see that?

 247 19 A. Yes.

 247 20 Q. And so by August of '99, this

 247 21 says that "a design review meeting was held

 247 22 on August 9, '99, to discuss progress toward

 247 23 the manufacture and the delivery of the

 247 24 Combat Arms Earplugs. Attending were Bob

 247 25 Klun, Dick Knauer, A. Aufmann, R. Bomke and

 248 1 J. Jurney."

 248 2 Right?

 248 3 A. Yes.

 248 4 Q. And there was no changes to the

 248 5 design at this time, right?

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 248 6 A. That's what -- what the

 248 7 document says.

 248 8 Q. Now, do you remember by this

 248 9 time you guys had already started having a

 248 10 problem with those ARC quality control

 248 11 machines?

 248 12 MR. FIELDS: Objection. Form.

 248 13 THE WITNESS: I do not recall.

 248 14 QUESTIONS BY MR. OVERHOLTZ:

 248 15 Q. Let's turn over to page 3 of

 248 16 this exhibit, which is on the next slide, the

 248 17 section under Design Acceptance Criteria.

 248 18 Do you see that?

 248 19 A. Yes.

 248 20 Q. It says, "Apparently one test

 248 21 unit is in need of repair by the supplier."

 248 22 Do you see that?

 248 23 A. Yes.

 248 24 Q. Okay. So you don't remember

 248 25 there being just one problem or another with

 249 1 these ARC machines back in the early design

 249 2 phase of these earplugs and development?

 249 3 A. I don't recall.

248:8 - 248:13 Klun

 248 8 Q. Now, do you remember by this

 248 9 time you guys had already started having a

 248 10 problem with those ARC quality control

 248 11 machines?

 248 12 MR. FIELDS: Objection. Form.

 248 13 THE WITNESS: I do not recall.

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248:24 - 249:5 Klun

 248 24 Q. Okay. So you don't remember

 248 25 there being just one problem or another with

 249 1 these ARC machines back in the early design

 249 2 phase of these earplugs and development?

 249 3 A. I don't recall.

 249 4 MR. FIELDS: Sorry. Objection.

 249 5 Form.

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 249 7 Q. All right. Now, you recall you

 249 8 and I talked about those Kaizen circles.

 249 9 Do you remember that? Plan,

 249 10 do, check and act?

 249 11 A. Yes.

249:12 - 250:16 Klun

 249 12 Q. I mean, when you have a problem

 249 13 and you're operating under those plan, do,

 249 14 check and act, when you figure out the

 249 15 problem, is one of the things you're supposed

 249 16 to do is write a secret report and stick it

 249 17 in your files and keep it there so nobody

 249 18 knows about it?

 249 19 MR. FIELDS: Objection to form.

 249 20 Argumentative.

 249 21 THE WITNESS: Can you rephrase

 249 22 that question?

 249 23 QUESTIONS BY MR. OVERHOLTZ:

 249 24 Q. Sure.

 249 25 I mean, part of the plan, do,

 250 1 check and act management strategy that you

 250 2 guys applied to quality wouldn't include

 250 3 writing secret reports and keeping them in

 250 4 your files, not sharing them with anyone

 250 5 about the problems you had found with the

 250 6 products, right?

 250 7 MR. FIELDS: Objection to form.

 250 8 THE WITNESS: I'm having a

 250 9 hard -- did you say would or would

 250 10 not?

 250 11 QUESTIONS BY MR. OVERHOLTZ:

 250 12 Q. That's something you would not

 250 13 do, right?

 250 14 MR. FIELDS: Same objection.

 250 15 THE WITNESS: That's correct.

 250 16 We wouldn't do that.

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250:17 - 250:23 Klun

 250 17 QUESTIONS BY MR. OVERHOLTZ:

 250 18 Q. That's not part of those Kaizen

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Klun 60

 250 19 principles to help improve the process of

 250 20 quality control for your products, right?

 250 21 A. Kaizen is more than that. It's

 250 22 a process. Kaizen was bigger than what

 250 23 you're talking about.

250:24 - 251:2 Klun

 250 24 Q. Well, it didn't include writing

 250 25 secret reports, did it?

 251 1 MR. FIELDS: Objection to form.

 251 2 THE WITNESS: No, it did not.

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251:3 - 251:12 Klun

 251 3 QUESTIONS BY MR. OVERHOLTZ:

 251 4 Q. Like that flange report that

 251 5 Mr. Pirtle showed you?

 251 6 MR. FIELDS: Objection. Form.

 251 7 QUESTIONS BY MR. OVERHOLTZ:

 251 8 Q. That's not what you'd expect,

 251 9 right?

 251 10 MR. FIELDS: Object to form.

 251 11 THE WITNESS: We would not do

 251 12 anything like that.

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SUSTAINED

251:13 - 254:20 Klun

 251 13 (Klun Exhibit 29 marked for

 251 14 identification.)

 251 15 QUESTIONS BY MR. OVERHOLTZ:

 251 16 Q. All right. Let's look at, if

 251 17 we can -- if we can pull up as exhibit -- is

 251 18 it 29 now? 29, RZ-014, Zach.

 251 19 You see this report at the

 251 20 front page, it says in the top, it says,

 251 21 "Development of a procedure to set up and

 251 22 utilize the Etymotic Research acoustic

 251 23 resistance checker, ER-ARC, and determining

 251 24 the QC acceptance range for the Combat Arms

 251 25 plug."

 252 1 Do you see that?

 252 2 A. Yes.

 252 3 Q. And the authors listed there

 252 4 are Ron Kieper and Elliott Berger, right?

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 252 5 A. Yes.

 252 6 Q. Okay. And the report's got a

 252 7 date of February of 2000.

 252 8 Do you see that?

 252 9 A. Yes.

 252 10 Q. Do you remember ever seeing

 252 11 this report?

 252 12 A. No, I do not recall.

 252 13 Q. Okay. So if you can look with

 252 14 me on page 4, there's a section called

 252 15 "Determining the Combat Arms Plugs Acceptance

 252 16 Range."

 252 17 Do you see that?

 252 18 A. Yes.

 252 19 Q. And this describes the filter

 252 20 that was used in the plug, and then there's a

 252 21 chart of measurements made on either the

 252 22 European nonlinear plug or the Combat Arms

 252 23 plug and the range that was found in the

 252 24 measurements.

 252 25 Do you see that chart?

 253 1 A. Yes, I see the chart in the

 253 2 document.

 253 3 Q. All right. And it says at the

 253 4 bottom of that paragraph, "Based on these

 253 5 measurements, the acceptable range for the

 253 6 Combat Arms plug was 4.5 to 6.5 millivolts

 253 7 measured on ARC number 1."

 253 8 Do you see that?

 253 9 A. That's what the document says.

 253 10 I'm not a subject matter expert. That's what

 253 11 the document says.

 253 12 Q. Okay. You would have relied in

 253 13 your role in quality on Mr. Kieper's

 253 14 expertise on this, right?

 253 15 A. Correct.

 253 16 Q. But you don't know whether he

 253 17 ever showed you that memo, right?

 253 18 A. I don't recall.

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 253 19 Q. So if we can look over -- I

 253 20 want to go back to page 2. You see that it

 253 21 says -- there's a second paragraph, and it

 253 22 says, "The initial attempt by the first

 253 23 author," that was Mr. Kieper, "to devise a

 253 24 setup procedure which would yield similar

 253 25 measured values from all four units failed."

 254 1 Do you see that?

 254 2 A. Yes.

 254 3 Q. He goes on a little bit further

 254 4 down, "Both setup procedures produced

 254 5 disparate values from the four ARCs."

 254 6 Do you see that?

 254 7 A. Yes.

 254 8 Q. And then if we look at the next

 254 9 paragraph it says, "The data obtained on the

 254 10 four ARCs, three reference plugs and units

 254 11 number 1 and 2, were sent to Andy Haapapuro

 254 12 of Etymotic Research, the technician who

 254 13 built units number 2 and number 3."

 254 14 Do you see that?

 254 15 A. Yes.

 254 16 Q. Etymotic, is that the company

 254 17 you bought the ARC machines from to test

 254 18 these earplugs?

 254 19 MR. FIELDS: Objection.

 254 20 THE WITNESS: I don't recall.

254:3 - 254:20 Klun

 254 3 Q. He goes on a little bit further

 254 4 down, "Both setup procedures produced

 254 5 disparate values from the four ARCs."

 254 6 Do you see that?

 254 7 A. Yes.

 254 8 Q. And then if we look at the next

 254 9 paragraph it says, "The data obtained on the

 254 10 four ARCs, three reference plugs and units

 254 11 number 1 and 2, were sent to Andy Haapapuro

 254 12 of Etymotic Research, the technician who

 254 13 built units number 2 and number 3."

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 254 14 Do you see that?

 254 15 A. Yes.

 254 16 Q. Etymotic, is that the company

 254 17 you bought the ARC machines from to test

 254 18 these earplugs?

 254 19 MR. FIELDS: Objection.

 254 20 THE WITNESS: I don't recall.

255:17 - 255:17 Klun

 255 17 QUESTIONS BY MR. OVERHOLTZ:

255:18 - 256:20 Klun

 255 18 Q. Okay. So this is a technical

 255 19 report, and it says, "Comparison of ER,"

 255 20 which is Etymotic Research, "and E-A-R,

 255 21 Aearo, Z boxes, November 15, '99."

 255 22 Do you see that?

 255 23 A. Yes.

 255 24 Q. And this was from Andrew

 255 25 Haapapuro, right?

 256 1 A. That's what it says.

 256 2 Q. And it said, "Based on test

 256 3 results that I have collected on the two

 256 4 Aearo Z boxes and one of ER's boxes, I have

 256 5 concluded the large difference between boxes

 256 6 at Aearo is that they have no means to

 256 7 properly calibrate the boxes."

 256 8 Do you see that?

 256 9 A. Yes.

 256 10 Q. "Particularly, sharing cal

 256 11 cavity information between different boxes

 256 12 invites large errors and is likely to be the

 256 13 source of the problem."

 256 14 Do you see that?

 256 15 A. Yes.

 256 16 Q. "I've demonstrated that the

 256 17 three boxes properly calibrated will

 256 18 correlate quite nicely."

 256 19 Right?

 256 20 A. That's what the document says.

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 255 18 Q. Okay. So this is a technical

 255 19 report, and it says, "Comparison of ER,"

 255 20 which is Etymotic Research, "and E-A-R,

 255 21 Aearo, Z boxes, November 15, '99."

 255 22 Do you see that?

 255 23 A. Yes.

 255 24 Q. And this was from Andrew

 255 25 Haapapuro, right?

 256 1 A. That's what it says.

 256 2 Q. And it said, "Based on test

 256 3 results that I have collected on the two

 256 4 Aearo Z boxes and one of ER's boxes, I have

 256 5 concluded the large difference between boxes

 256 6 at Aearo is that they have no means to

 256 7 properly calibrate the boxes."

 256 8 Do you see that?

 256 9 A. Yes.

 256 10 Q. "Particularly, sharing cal

 256 11 cavity information between different boxes

 256 12 invites large errors and is likely to be the

 256 13 source of the problem."

 256 14 Do you see that?

 256 15 A. Yes.

 256 16 Q. "I've demonstrated that the

 256 17 three boxes properly calibrated will

 256 18 correlate quite nicely."

 256 19 Right?

 256 20 A. That's what the document says.

 256 21 Q. Right. That's what your guys's

 256 22 internal memo said about the information they

 256 23 got from Etymotic, the people that made these

 256 24 ARC machines, in November of 1999, right?

 256 25 MR. FIELDS: Objection to form.

 257 1 THE WITNESS: I don't recall.

 257 2 QUESTIONS BY MR. OVERHOLTZ:

 257 3 Q. Did you know that by this time

 257 4 you guys at Aearo were already selling and

 257 5 delivering Combat Arms Earplugs to the United

 257 6 States military?

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 257 7 A. I do not recall.

 257 8 Q. Without any way of calibrating

 257 9 the machines; you don't recall that?

 257 10 MR. FIELDS: Objection to form.

 257 11 THE WITNESS: I do not recall.

 257 12 QUESTIONS BY MR. OVERHOLTZ:

 257 13 Q. But based on what Mr. Haapapuro

 257 14 said, I mean, it's pretty clear that without

 257 15 proper calibration, Aearo can't be sure that

 257 16 these earplugs are going to meet quality

 257 17 standards, right?

 257 18 MR. FIELDS: Objection to form.

 257 19 THE WITNESS: I am not a

 257 20 subject matter expert, so I

 257 21 cannot comment. I do not recall this.

 257 22 Never seen it.

 257 23 QUESTIONS BY MR. OVERHOLTZ:

 257 24 Q. Mr. Haapapuro has told you that

 257 25 the reason why you're getting different

 258 1 results on different boxes is because you had

 258 2 no way of calibrating them, right?

 258 3 MR. FIELDS: Objection to form.

 258 4 That's a misstatement. It doesn't say

 258 5 that he told Dr. Klun that.

 258 6 THE WITNESS: I agree. Nobody

 258 7 told me. I don't recall.

 258 8 QUESTIONS BY MR. OVERHOLTZ:

 258 9 Q. This memo that Mr. Haapapuro

 258 10 wrote to Elliott Berger, who ran the lab, and

 258 11 Ron Kieper, who did all the testing, told

 258 12 them, and they put in this technical report

 258 13 that the reason why there were differences

 258 14 between the ARC boxes at Aearo is there were

 258 15 no means to properly calibrate them, right?

 258 16 A. Well, by what the document

 258 17 says.

256:21 - 257:1 Klun

 256 21 Q. Right. That's what your guys's

 256 22 internal memo said about the information they

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 256 23 got from Etymotic, the people that made these

 256 24 ARC machines, in November of 1999, right?

 256 25 MR. FIELDS: Objection to form.

 257 1 THE WITNESS: I don't recall.

257:2 - 257:7 Klun

 257 2 QUESTIONS BY MR. OVERHOLTZ:

 257 3 Q. Did you know that by this time

 257 4 you guys at Aearo were already selling and

 257 5 delivering Combat Arms Earplugs to the United

 257 6 States military?

 257 7 A. I do not recall.

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257:8 - 257:11 Klun

 257 8 Q. Without any way of calibrating

 257 9 the machines; you don't recall that?

 257 10 MR. FIELDS: Objection to form.

 257 11 THE WITNESS: I do not recall.

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257:12 - 257:12 Klun

 257 12 QUESTIONS BY MR. OVERHOLTZ:

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257:13 - 257:22 Klun

 257 13 Q. But based on what Mr. Haapapuro

 257 14 said, I mean, it's pretty clear that without

 257 15 proper calibration, Aearo can't be sure that

 257 16 these earplugs are going to meet quality

 257 17 standards, right?

 257 18 MR. FIELDS: Objection to form.

 257 19 THE WITNESS: I am not a

 257 20 subject matter expert, so I

 257 21 cannot comment. I do not recall this.

 257 22 Never seen it.

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257:23 - 257:23 Klun

 257 23 QUESTIONS BY MR. OVERHOLTZ:

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Def Obj 3M MIL No. 26

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257:24 - 258:7 Klun

 257 24 Q. Mr. Haapapuro has told you that

 257 25 the reason why you're getting different

 258 1 results on different boxes is because you had

 258 2 no way of calibrating them, right?

 258 3 MR. FIELDS: Objection to form.

 258 4 That's a misstatement. It doesn't say

 258 5 that he told Dr. Klun that.

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 258 6 THE WITNESS: I agree. Nobody

 258 7 told me. I don't recall.

258:8 - 258:17 Klun

 258 8 QUESTIONS BY MR. OVERHOLTZ:

 258 9 Q. This memo that Mr. Haapapuro

 258 10 wrote to Elliott Berger, who ran the lab, and

 258 11 Ron Kieper, who did all the testing, told

 258 12 them, and they put in this technical report

 258 13 that the reason why there were differences

 258 14 between the ARC boxes at Aearo is there were

 258 15 no means to properly calibrate them, right?

 258 16 A. Well, by what the document

 258 17 says.

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258:18 - 259:12 Klun

 258 18 (Klun Exhibit 30 marked for

 258 19 identification.)

 258 20 QUESTIONS BY MR. OVERHOLTZ:

 258 21 Q. Well, let's look and see what

 258 22 happened about four days after that. If we

 258 23 can pull up slide 55, Zach, and I'll

 258 24 introduce as Exhibit Number 30 plaintiff 9 --

 258 25 P0922.

 259 1 And again, I've got a

 259 2 picture -- a blowup from the e-mail there.

 259 3 And the writing at the top with the date is,

 259 4 "Berger says there is no test data for the

 259 5 CAEv2 even though Aearo was selling the

 259 6 plugs."

 259 7 Can you see the e-mail there on

 259 8 the screen, Mr. Klun?

 259 9 A. I'm seeing part of it.

 259 10 Q. All right. And Elliott Berger

 259 11 e-mails on November 19th of '99, right?

 259 12 A. Uh-huh.

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259:20 - 262:17 Klun

 259 20 QUESTIONS BY MR. OVERHOLTZ:

 259 21 Q. You see the subject is "Combat

 259 22 Arms plug," Mr. Klun?

 259 23 A. Yes.

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 259 24 Q. And Mr. Berger writes, "It

 259 25 recently occurred to us that we have no data

 260 1 on the actual version of the nonlinear

 260 2 earplug that we are now selling in the US,

 260 3 namely, the dual-ended Combat Arms plug."

 260 4 Do you see that?

 260 5 A. Yes.

 260 6 Q. So four days after the people

 260 7 at Etymotic told Mr. Berger and Mr. Kieper

 260 8 that there was no way for them to test the

 260 9 plugs with the ARC machines and get

 260 10 consistent results because they had no way of

 260 11 calibrating them, Berger e-mails that they

 260 12 have no data on the plug that they are now

 260 13 selling, right?

 260 14 MR. FIELDS: Objection to form.

 260 15 THE WITNESS: I don't recall

 260 16 ever seeing this document.

 260 17 QUESTIONS BY MR. OVERHOLTZ:

 260 18 Q. I mean, if you would have -- if

 260 19 you would have known that you were selling

 260 20 plugs that you didn't have data on regarding

 260 21 their nonlinear function and that the quality

 260 22 control machines that you use couldn't be

 260 23 calibrated, would the right thing to have

 260 24 done is, hey, we've got to quit selling these

 260 25 until we get this problem fixed?

 261 1 MR. FIELDS: Objection. Form.

 261 2 THE WITNESS: I don't recall

 261 3 this.

 261 4 QUESTIONS BY MR. OVERHOLTZ:

 261 5 Q. So you don't recall this, so

 261 6 you didn't have the chance to stand up and

 261 7 say, hey, we need to stop; is that what

 261 8 you're saying?

 261 9 MR. FIELDS: Objection to form.

 261 10 Mischaracterization.

 261 11 THE WITNESS: I'm saying I have

 261 12 no recall or did not see the document.

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 261 13 QUESTIONS BY MR. OVERHOLTZ:

 261 14 Q. I mean, if you had heard that

 261 15 your quality control machines couldn't be

 261 16 calibrated and that you didn't have nonlinear

 261 17 data on the earplugs that you were selling to

 261 18 the US military, would you have taken some

 261 19 action?

 261 20 MR. FIELDS: Objection. Form.

 261 21 THE WITNESS: As I say, I'm not

 261 22 aware of it. I'm not aware of this

 261 23 document nor recall it.

 261 24 QUESTIONS BY MR. OVERHOLTZ:

 261 25 Q. Would you have expected that

 262 1 someone that did know this fact to take some

 262 2 action over at Aearo and say, hold up, we've

 262 3 got to get these ARC machines fixed. We've

 262 4 got to get some real data before we keep

 262 5 selling these plugs to the US military?

 262 6 MR. FIELDS: Objection to form.

 262 7 THE WITNESS: Again, I have no

 262 8 recall of this.

 262 9 QUESTIONS BY MR. OVERHOLTZ:

 262 10 Q. So at this point in time in

 262 11 late '99, you're still in quality, right?

 262 12 A. Correct.

 262 13 Q. Along with Annette Shaver and

 262 14 Steve Todor, right?

 262 15 A. Yes.

 262 16 (Klun Exhibit 31 marked for

 262 17 identification.)

260:6 - 260:16 Klun

 260 6 Q. So four days after the people

 260 7 at Etymotic told Mr. Berger and Mr. Kieper

 260 8 that there was no way for them to test the

 260 9 plugs with the ARC machines and get

 260 10 consistent results because they had no way of

 260 11 calibrating them, Berger e-mails that they

 260 12 have no data on the plug that they are now

 260 13 selling, right?

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(602); 702; Compound; Vague (611, 

403)

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 260 14 MR. FIELDS: Objection to form.

 260 15 THE WITNESS: I don't recall

 260 16 ever seeing this document.

260:18 - 261:3 Klun

 260 18 Q. I mean, if you would have -- if

 260 19 you would have known that you were selling

 260 20 plugs that you didn't have data on regarding

 260 21 their nonlinear function and that the quality

 260 22 control machines that you use couldn't be

 260 23 calibrated, would the right thing to have

 260 24 done is, hey, we've got to quit selling these

 260 25 until we get this problem fixed?

 261 1 MR. FIELDS: Objection. Form.

 261 2 THE WITNESS: I don't recall

 261 3 this.

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Vague; Argumentative (611, 403)

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261:5 - 261:12 Klun

 261 5 Q. So you don't recall this, so

 261 6 you didn't have the chance to stand up and

 261 7 say, hey, we need to stop; is that what

 261 8 you're saying?

 261 9 MR. FIELDS: Objection to form.

 261 10 Mischaracterization.

 261 11 THE WITNESS: I'm saying I have

 261 12 no recall or did not see the document.

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Argumentative; Vague; Misstates (611, 

403)

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261:14 - 261:23 Klun

 261 14 Q. I mean, if you had heard that

 261 15 your quality control machines couldn't be

 261 16 calibrated and that you didn't have nonlinear

 261 17 data on the earplugs that you were selling to

 261 18 the US military, would you have taken some

 261 19 action?

 261 20 MR. FIELDS: Objection. Form.

 261 21 THE WITNESS: As I say, I'm not

 261 22 aware of it. I'm not aware of this

 261 23 document nor recall it.

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Argumentative; Vague (611, 403)

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261:25 - 262:8 Klun

 261 25 Q. Would you have expected that

 262 1 someone that did know this fact to take some

 262 2 action over at Aearo and say, hold up, we've

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 262 3 got to get these ARC machines fixed. We've

 262 4 got to get some real data before we keep

 262 5 selling these plugs to the US military?

 262 6 MR. FIELDS: Objection to form.

 262 7 THE WITNESS: Again, I have no

 262 8 recall of this.

263:5 - 264:5 Klun

 263 5 Q. And if we can look at the

 263 6 e-mail, Dick Knauer writes to Steve and says,

 263 7 "Steve, I've reviewed the progress for the

 263 8 Combat Arms test fixture with Berger and

 263 9 Kieper."

 263 10 Do you see that?

 263 11 A. Yes.

 263 12 Q. I mean, Berger and Kieper are

 263 13 the ones who got the memo from the guys at

 263 14 Etymotic that said they couldn't calibrate

 263 15 the plugs, right?

 263 16 MR. FIELDS: Objection to form.

 263 17 THE WITNESS: Like I say, I

 263 18 don't recall.

 263 19 QUESTIONS BY MR. OVERHOLTZ:

 263 20 Q. Okay. Well, that's what the

 263 21 Haapapuro memo said, right?

 263 22 A. If that's what the document

 263 23 says.

 263 24 Q. And he goes on and says, "I

 263 25 would like to provide a brief update. The

 264 1 specification that is important for the

 264 2 product is the acoustic resistance of the

 264 3 finished plug which is determined in ohms."

 264 4 Do you see that?

 264 5 A. Yes.

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Def Obj 3M MIL No. 26; Foundation 

(602)

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266:14 - 266:24 Klun

 266 14 Q. Okay. So what Dick Knauer

 266 15 e-mails on December 10th of '99, he tells

 266 16 Steve Todor and Annette Shaver in quality

 266 17 that --

 266 18 A. Yes.

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(602)

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 266 19 Q. -- with respect to the Combat

 266 20 Arms test picture, the ARC machine, after

 266 21 talking to Berger and Kieper, that the

 266 22 important specification is the acoustic

 266 23 resistance of the finished plug, right?

 266 24 A. Yes.

273:13 - 273:16 Klun

 273 13 Q. Now, do you know how those

 273 14 plugs got back from San Luis Potos�, Mexico,

 273 15 to Indianapolis to be sold?

 273 16 A. I do not know.

Re: [273:13-273:16]

Pltf Obj improper counter per PTO 64; 

402

OVERRULED

273:17 - 273:23 Klun

 273 17 (Klun Exhibit 33 marked for

 273 18 identification.)

 273 19 QUESTIONS BY MR. OVERHOLTZ:

 273 20 Q. Okay. All right. So if we can

 273 21 look at the next exhibit, we'll mark this as

 273 22 Exhibit 33, which is BK-164. This is a

 273 23 quotation document from August 5th of 2000.

274:7 - 274:16 Klun

 274 7 Q. Okay. So this shows -- this

 274 8 is -- this indicated -- this document we

 274 9 found in Aearo's files says that this is a

 274 10 labor quotation type.

 274 11 Do you see that?

 274 12 A. Yes.

 274 13 Q. And it models the Combat Arms

 274 14 part number 370-1000.

 274 15 Do you see that?

 274 16 A. Yes.

274:21 - 275:1 Klun

 274 21 Q. And it looks like -- that TJR

 274 22 was saying that they could put these earplugs

 274 23 together for 30 and a half cents each, right?

 274 24 MR. FIELDS: Objection to form.

 274 25 THE WITNESS: That's what the

 275 1 document says.

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(401, 402); Prejudice (403); 3M MIL 

No. 7

OVERRULED

275:22 - 276:1 Klun

 275 22 Q. All right. You know -- did you

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 275 23 become aware at some point that TJR merged

 275 24 into Aearo, became Aearo Technologies de

 275 25 Mexico, or ATM?

 276 1 A. Do not recall that.

402

277:1 - 277:1 Klun

 277 1 QUESTIONS BY MR. OVERHOLTZ:

277:2 - 281:20 Klun

 277 2 Q. All right. Let's look at

 277 3 slide 78, if we can. And we'll mark this as

 277 4 Exhibit 34, which is P1364A.

 277 5 And this is -- we're going to

 277 6 look at page 3, which is an April 9, 2003

 277 7 Medical Procurement Item Description.

 277 8 Can you see that, Mr. Klun?

 277 9 A. Yes.

 277 10 Q. And so for this Medical

 277 11 Procurement Item Description dated April 9,

 277 12 2003, there's a section under 4.3.2 called

 277 13 Sound Attenuation.

 277 14 Do you see that?

 277 15 A. Yes.

 277 16 Q. And it says, "Sampling for

 277 17 inspection of sound attenuation."

 277 18 You know what sound attenuation

 277 19 is, right, since you were working on hearing

 277 20 protection?

 277 21 A. Yeah. Yes, I do.

 277 22 Q. That's the protective effect of

 277 23 the earplug, right?

 277 24 A. Yes.

 277 25 Q. It says, "Sampling for

 278 1 inspection of sound attenuation of the

 278 2 level-dependent yellow end shall be

 278 3 100 percent and shall be verified using an

 278 4 acoustical impedance test."

 278 5 Do you see that?

 278 6 A. Yes.

 278 7 Q. So for this Medical Procurement

 278 8 Item Description, for the military to be able

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 278 9 to order these plugs, Aearo told the military

 278 10 they were going to test 100 percent of them

 278 11 and verify with an ARC machine, right?

 278 12 MR. FIELDS: Objection. Form.

 278 13 THE WITNESS: That's what this

 278 14 document says.

 278 15 QUESTIONS BY MR. OVERHOLTZ:

 278 16 Q. It doesn't say anywhere on here

 278 17 in April of 2003 that sometimes our machines

 278 18 may not be calibrated and may not work right,

 278 19 does it?

 278 20 MR. FIELDS: Objection to form.

 278 21 Argumentative.

 278 22 QUESTIONS BY MR. OVERHOLTZ:

 278 23 Q. It doesn't say that, right,

 278 24 Mr. Klun?

 278 25 MR. FIELDS: Same objection.

 279 1 THE WITNESS: Say it again?

 279 2 QUESTIONS BY MR. OVERHOLTZ:

 279 3 Q. It doesn't say anywhere on here

 279 4 that if the ARC machines aren't calibrated,

 279 5 they may not work right, and we can't verify

 279 6 that the plugs are going to work for the

 279 7 soldiers, does it?

 279 8 A. I go by what the document says.

 279 9 Q. Do you know if anyone at Aearo

 279 10 ever told the United States military that if

 279 11 those ARC machines weren't calibrated, that

 279 12 they'd have no way of verifying that the

 279 13 plugs would attenuate sound for the yellow

 279 14 end for the soldiers wearing them?

 279 15 MR. FIELDS: Objection. Form.

 279 16 THE WITNESS: I do not know nor

 279 17 recall.

 279 18 QUESTIONS BY MR. OVERHOLTZ:

 279 19 Q. And do you know if anyone at

 279 20 Aearo ever told the United States military

 279 21 that they were having problems with the

 279 22 plug -- with the ARC machines being

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 100 of 345
Klun 75

 279 23 calibrated right?

 279 24 A. Do not know nor recall.

 279 25 Q. Do you think the US military

 280 1 and the soldiers that were going to wear

 280 2 these plugs deserved to know about that

 280 3 issue?

 280 4 MR. FIELDS: Objection to form.

 280 5 THE WITNESS: I do not know nor

 280 6 recall.

 280 7 QUESTIONS BY MR. OVERHOLTZ:

 280 8 Q. So do you believe that the

 280 9 United States military should have been told

 280 10 if there was a problem with the calibration

 280 11 of the ARC machines and that Aearo couldn't

 280 12 verify that the yellow end of the earplug was

 280 13 going to attenuate sound and protect the

 280 14 soldiers?

 280 15 MR. FIELDS: Objection. Form.

 280 16 THE WITNESS: Can you --

 280 17 QUESTIONS BY MR. OVERHOLTZ:

 280 18 Q. Sure.

 280 19 A. Can you repeat?

 280 20 Q. Do you believe the United

 280 21 States military should have been told that if

 280 22 there was a problem with the calibration of

 280 23 the ARC machines and that Aearo couldn't

 280 24 verify that the yellow end of the earplug was

 280 25 going to attenuate sound and protect the

 281 1 soldiers?

 281 2 MR. FIELDS: Same objection.

 281 3 THE WITNESS: Do not know nor

 281 4 recall.

 281 5 QUESTIONS BY MR. OVERHOLTZ:

 281 6 Q. If you would have known, would

 281 7 you have told them?

 281 8 MR. FIELDS: Object to form.

 281 9 THE WITNESS: I do not know nor

 281 10 recall.

 281 11 QUESTIONS BY MR. OVERHOLTZ:

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Klun 76

 281 12 Q. So when you sent Kieper and

 281 13 Zielinski down to Mexico in November 2004 and

 281 14 you found -- and you wrote out that memo

 281 15 about all the problems, did you pick up the

 281 16 phone and call anyone over at the Army and

 281 17 say, hey, we've got a problems, fellows?

 281 18 MR. FIELDS: Objection. Form.

 281 19 THE WITNESS: Do not know nor

 281 20 recall.

278:7 - 278:14 Klun

 278 7 Q. So for this Medical Procurement

 278 8 Item Description, for the military to be able

 278 9 to order these plugs, Aearo told the military

 278 10 they were going to test 100 percent of them

 278 11 and verify with an ARC machine, right?

 278 12 MR. FIELDS: Objection. Form.

 278 13 THE WITNESS: That's what this

 278 14 document says.

Re: [278:7-278:14]

Def Obj Hearsay (801, 802); Foundation 

(602); Vague (611, 403)

OVERRULED

278:15 - 278:19 Klun

 278 15 QUESTIONS BY MR. OVERHOLTZ:

 278 16 Q. It doesn't say anywhere on here

 278 17 in April of 2003 that sometimes our machines

 278 18 may not be calibrated and may not work right,

 278 19 does it?

Re: [278:15-278:19]

Def Obj Argumentative (611, 403); 3M 

MIL No. 26

OVERRULED

279:1 - 279:8 Klun

 279 1 THE WITNESS: Say it again?

 279 2 QUESTIONS BY MR. OVERHOLTZ:

 279 3 Q. It doesn't say anywhere on here

 279 4 that if the ARC machines aren't calibrated,

 279 5 they may not work right, and we can't verify

 279 6 that the plugs are going to work for the

 279 7 soldiers, does it?

 279 8 A. I go by what the document says.

Re: [279:1-279:8]

Def Obj 3M MIL No. 26

OVERRULED

279:9 - 281:20 Klun

 279 9 Q. Do you know if anyone at Aearo

 279 10 ever told the United States military that if

 279 11 those ARC machines weren't calibrated, that

 279 12 they'd have no way of verifying that the

 279 13 plugs would attenuate sound for the yellow

Re: [279:9-281:20]

Def Obj 3M MIL No. 26

OVERRULED

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 279 14 end for the soldiers wearing them?

 279 15 MR. FIELDS: Objection. Form.

 279 16 THE WITNESS: I do not know nor

 279 17 recall.

 279 18 QUESTIONS BY MR. OVERHOLTZ:

 279 19 Q. And do you know if anyone at

 279 20 Aearo ever told the United States military

 279 21 that they were having problems with the

 279 22 plug -- with the ARC machines being

 279 23 calibrated right?

 279 24 A. Do not know nor recall.

 279 25 Q. Do you think the US military

 280 1 and the soldiers that were going to wear

 280 2 these plugs deserved to know about that

 280 3 issue?

 280 4 MR. FIELDS: Objection to form.

 280 5 THE WITNESS: I do not know nor

 280 6 recall.

 280 7 QUESTIONS BY MR. OVERHOLTZ:

 280 8 Q. So do you believe that the

 280 9 United States military should have been told

 280 10 if there was a problem with the calibration

 280 11 of the ARC machines and that Aearo couldn't

 280 12 verify that the yellow end of the earplug was

 280 13 going to attenuate sound and protect the

 280 14 soldiers?

 280 15 MR. FIELDS: Objection. Form.

 280 16 THE WITNESS: Can you --

 280 17 QUESTIONS BY MR. OVERHOLTZ:

 280 18 Q. Sure.

 280 19 A. Can you repeat?

 280 20 Q. Do you believe the United

 280 21 States military should have been told that if

 280 22 there was a problem with the calibration of

 280 23 the ARC machines and that Aearo couldn't

 280 24 verify that the yellow end of the earplug was

 280 25 going to attenuate sound and protect the

 281 1 soldiers?

 281 2 MR. FIELDS: Same objection.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 103 of 345
Klun 78

 281 3 THE WITNESS: Do not know nor

 281 4 recall.

 281 5 QUESTIONS BY MR. OVERHOLTZ:

 281 6 Q. If you would have known, would

 281 7 you have told them?

 281 8 MR. FIELDS: Object to form.

 281 9 THE WITNESS: I do not know nor

 281 10 recall.

 281 11 QUESTIONS BY MR. OVERHOLTZ:

 281 12 Q. So when you sent Kieper and

 281 13 Zielinski down to Mexico in November 2004 and

 281 14 you found -- and you wrote out that memo

 281 15 about all the problems, did you pick up the

 281 16 phone and call anyone over at the Army and

 281 17 say, hey, we've got a problems, fellows?

 281 18 MR. FIELDS: Objection. Form.

 281 19 THE WITNESS: Do not know nor

 281 20 recall.

279:25 - 280:6 Klun

 279 25 Q. Do you think the US military

 280 1 and the soldiers that were going to wear

 280 2 these plugs deserved to know about that

 280 3 issue?

 280 4 MR. FIELDS: Objection to form.

 280 5 THE WITNESS: I do not know nor

 280 6 recall.

Re: [279:25-280:6]

Def Obj 701; Foundation (602); 

Argumentative (611, 403)

SUSTAINED

280:20 - 281:4 Klun

 280 20 Q. Do you believe the United

 280 21 States military should have been told that if

 280 22 there was a problem with the calibration of

 280 23 the ARC machines and that Aearo couldn't

 280 24 verify that the yellow end of the earplug was

 280 25 going to attenuate sound and protect the

 281 1 soldiers?

 281 2 MR. FIELDS: Same objection.

 281 3 THE WITNESS: Do not know nor

 281 4 recall.

Re: [280:20-281:4]

Def Obj 701; Argumentative (611, 403)

OVERRULED

281:6 - 281:10 Klun

 281 6 Q. If you would have known, would

Re: [281:6-281:10]

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 281 7 you have told them?

 281 8 MR. FIELDS: Object to form.

 281 9 THE WITNESS: I do not know nor

 281 10 recall.

281:12 - 281:20 Klun

 281 12 Q. So when you sent Kieper and

 281 13 Zielinski down to Mexico in November 2004 and

 281 14 you found -- and you wrote out that memo

 281 15 about all the problems, did you pick up the

 281 16 phone and call anyone over at the Army and

 281 17 say, hey, we've got a problems, fellows?

 281 18 MR. FIELDS: Objection. Form.

 281 19 THE WITNESS: Do not know nor

 281 20 recall.

Re: [281:12-281:20]

Def Obj Argumentative; Vague (611, 

403)

OVERRULED

282:11 - 283:6 Klun

 282 11 Q. Okay. Let's ask you a question

 282 12 here, Mr. Klun.

 282 13 You told Mr. Pirtle that when

 282 14 it comes to testing, quality testing,

 282 15 machines, that it's important that they're

 282 16 calibrated right.

 282 17 Do you recall that?

 282 18 A. Yes.

 282 19 Q. And is it -- would you agree

 282 20 that if you lose the calibration plugs or

 282 21 pins for the machine, it's going to be hard

 282 22 to make sure they're calibrated correctly?

 282 23 MR. FIELDS: Object to form.

 282 24 THE WITNESS: I'm not a subject

 282 25 matter expert. Don't know or recall.

 283 1 QUESTIONS BY MR. OVERHOLTZ:

 283 2 Q. But if you don't have the tools

 283 3 you need to calibrate the machine, you can't

 283 4 make sure it's calibrated the right way; is

 283 5 that fair?

 283 6 A. That's fair.

Re: [282:11-283:6]

Def Obj 3M MIL No. 26

OVERRULED

282:19 - 282:25 Klun

 282 19 Q. And is it -- would you agree

 282 20 that if you lose the calibration plugs or

Re: [282:19-282:25]

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Vague (611, 403)

SUSTAINED

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Klun 80

 282 21 pins for the machine, it's going to be hard

 282 22 to make sure they're calibrated correctly?

 282 23 MR. FIELDS: Object to form.

 282 24 THE WITNESS: I'm not a subject

 282 25 matter expert. Don't know or recall.

283:7 - 283:12 Klun

 283 7 (Klun Exhibit 35 marked for

 283 8 identification.)

 283 9 QUESTIONS BY MR. OVERHOLTZ:

 283 10 Q. Okay. Let me show you what

 283 11 we'll mark as Exhibit Number 35, which is

 283 12 P2270. And I want to start with --

Re: [283:7-283:12]

Def Obj Foundation (602)

OVERRULED

283:24 - 285:14 Klun

 283 24 Q. So if we can go to the last

 283 25 page, Mr. Klun, and I'll have it blown up for

 284 1 you, there's an e-mail from -- there's an

 284 2 e-mail from a Roberto Ramirez Blanco down at

 284 3 the bottom. And you see the signature line

 284 4 is RobertoRamirez@TJR-mex.com.

 284 5 Do you see that?

 284 6 A. Yes.

 284 7 Q. Okay. And this e-mail is from

 284 8 August 1st of 2002. Okay?

 284 9 It says, "Hi, Don, I'm sending

 284 10 you two photos where you can see the

 284 11 equipment I am talking about, and another of

 284 12 an ARC box where we test earplugs and where

 284 13 we put the calibration plug, which are lost."

 284 14 Do you see that?

 284 15 A. Yes.

 284 16 Q. Okay. So in August of 2002,

 284 17 the guys down at TJR Mexico are saying that

 284 18 they've lost the calibration plugs, right?

 284 19 MR. FIELDS: Objection. Form.

 284 20 THE WITNESS: All I can see is

 284 21 what the document is saying. The

 284 22 calibration -- what the individual

 284 23 said, "the calibration plug, which are

 284 24 lost."

Re: [283:24-285:14]

Def Obj 3M MIL No. 26; Foundation 

(602)

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Klun 81

 284 25 

 285 1 QUESTIONS BY MR. OVERHOLTZ:

 285 2 Q. Okay. And that's not a good

 285 3 thing, right?

 285 4 MR. FIELDS: Objection. Form.

 285 5 THE WITNESS: Was there a

 285 6 question?

 285 7 QUESTIONS BY MR. OVERHOLTZ:

 285 8 Q. Sure.

 285 9 It's not a good thing to have

 285 10 lost the calibration plugs for your quality

 285 11 control machines down in Mexico where you're

 285 12 assembling and testing the plugs, right?

 285 13 A. I would say it's not a good

 285 14 thing.

284:16 - 284:24 Klun

 284 16 Q. Okay. So in August of 2002,

 284 17 the guys down at TJR Mexico are saying that

 284 18 they've lost the calibration plugs, right?

 284 19 MR. FIELDS: Objection. Form.

 284 20 THE WITNESS: All I can see is

 284 21 what the document is saying. The

 284 22 calibration -- what the individual

 284 23 said, "the calibration plug, which are

 284 24 lost."

Re: [284:16-284:24]

Def Obj Hearsay (801, 802); Foundation 

(602)

OVERRULED

289:7 - 289:14 Klun

 289 7 In your role at quality at

 289 8 Aearo, do you believe it would be good

 289 9 quality control procedure for the calibration

 289 10 plugs for the quality control machine for the

 289 11 yellow end of the Combat Arms Earplug to be

 289 12 lost for months and months when you're

 289 13 selling those plugs to the United States

 289 14 military?

Re: [289:7-289:14]

Def Obj Argumentative (611, 403); 

Foundation (602); 702; 3M MIL No. 26

OVERRULED

289:16 - 289:20 Klun

 289 16 THE WITNESS: I don't know

 289 17 whether nor recall whether these plugs

 289 18 were really lost. I don't know any of

 289 19 this.

Re: [289:16-289:20]

Def Obj 3M MIL No. 26

OVERRULED

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Klun 82

 289 20 QUESTIONS BY MR. OVERHOLTZ:

289:21 - 289:23 Klun

 289 21 Q. I mean, you don't think Ron

 289 22 Kieper was lying about them being lost,

 289 23 right?

Re: [289:21-289:23]

Def Obj Argumentative (611, 403); 

Foundation (602)

SUSTAINED

289:25 - 290:1 Klun

 289 25 THE WITNESS: Go by what the

 290 1 document says, what Ron said.

Re: [289:25-290:1]

Def Obj Argumentative (611, 403); 

Foundation (602)

SUSTAINED

290:2 - 290:2 Klun

 290 2 QUESTIONS BY MR. OVERHOLTZ:

Re: [290:2-290:2]

Def Obj 3M MIL No. 26

290:3 - 290:6 Klun

 290 3 Q. Did you have any reason to

 290 4 believe Mr. Ramirez from TJR Mexico was lying

 290 5 when he said, hey, we've lost the plugs and

 290 6 we need some more?

Re: [290:3-290:6]

Def Obj Foundation (602)

SUSTAINED

290:8 - 290:9 Klun

 290 8 THE WITNESS: I don't know

 290 9 Mr. Ramirez.

Re: [290:8-290:9]

Def Obj Foundation (602)

SUSTAINED

290:21 - 290:21 Klun

 290 21 QUESTIONS BY MR. OVERHOLTZ:

290:22 - 291:3 Klun

 290 22 Q. You didn't know him, but you

 290 23 guys were relying on the people at TJR Mexico

 290 24 to put these Combat Arms Earplugs together

 290 25 and test them to make sure that that filter

 291 1 in that yellow end of the plug would work

 291 2 when a soldier needed it when they were

 291 3 defending our country, right?

Re: [290:22-291:3]

Def Obj 3M MIL No. 26

SUSTAINED

291:5 - 291:7 Klun

 291 5 THE WITNESS: Can you state a

 291 6 question that I can understand?

 291 7 QUESTIONS BY MR. OVERHOLTZ:

291:8 - 291:18 Klun

 291 8 Q. Isn't it true that you guys at

 291 9 Aearo were relying on the folks at TJR Mexico

 291 10 to put these Combat Arms Earplugs together

 291 11 and test them with those ARC machines that

 291 12 were properly calibrated to make sure that

 291 13 that yellow end of that earplug would work

Re: [291:8-291:18]

Def Obj Argumentative; Vague (611, 

403); Foundation (602)

OVERRULED; however, the 

following portion must be removed: 

“and protect a soldier’s hearing when 

they were out defending our country”

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 108 of 345
Klun 83

 291 14 and protect a soldier's hearing when they

 291 15 were out defending our country?

 291 16 MR. FIELDS: Same objection.

 291 17 THE WITNESS: I don't know or

 291 18 recall the situation.

291:8 - 291:18 Klun

 291 8 Q. Isn't it true that you guys at

 291 9 Aearo were relying on the folks at TJR Mexico

 291 10 to put these Combat Arms Earplugs together

 291 11 and test them with those ARC machines that

 291 12 were properly calibrated to make sure that

 291 13 that yellow end of that earplug would work

 291 14 and protect a soldier's hearing when they

 291 15 were out defending our country?

 291 16 MR. FIELDS: Same objection.

 291 17 THE WITNESS: I don't know or

 291 18 recall the situation.

Re: [291:8-291:18]

Def Obj 3M MIL No. 26

SUSTAINED (asked and answered)

292:1 - 292:1 Klun

 292 1 QUESTIONS BY MR. OVERHOLTZ:

292:2 - 292:10 Klun

 292 2 Q. But you guys at Aearo couldn't

 292 3 do anything to rectify the problem with these

 292 4 ARC machines that weren't calibrated right

 292 5 down in Mexico, that only cost $700, for

 292 6 months and months between 2002 and 2003 to

 292 7 make sure those plugs could be tested

 292 8 appropriately; isn't that true?

 292 9 MR. FIELDS: Objection. Form.

 292 10 THE WITNESS: I don't know.

Re: [292:2-292:10]

Def Obj Argumentative; Vague (611, 

403); Foundation (602); 702; 3M MIL 

No. 26

SUSTAINED

293:2 - 293:16 Klun

 293 2 So for the Combat Arms

 293 3 version 2 dual-ended plug, okay, that's the

 293 4 plug we've been talking about, right?

 293 5 A. Yes.

 293 6 Q. And that's this plug right

 293 7 there, right?

 293 8 A. Yes.

 293 9 Q. Okay. So what we know, what we

 293 10 learned through these documents, is that

Re: [293:2-293:16]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 109 of 345
Klun 84

 293 11 there was a QC machine, and that machine is

 293 12 called the ARC, right?

 293 13 A. Yes.

 293 14 Q. The acoustic resistance

 293 15 checker, correct?

 293 16 A. Yes.

293:23 - 294:1 Klun

 293 23 Q. Okay. And the other thing we

 293 24 learned about them is that they need to be

 293 25 calibrated, right?

 294 1 A. Yes.

294:2 - 294:4 Klun

 294 2 Q. Okay. And the ARC machines,

 294 3 they test the yellow end of the plug, right?

 294 4 A. Yes.

Re: [294:2-294:4]

Def Obj 3M MIL No. 26

OVERRULED

294:5 - 294:11 Klun

 294 5 Q. And the yellow end, that's the

 294 6 end with the filter in it that protects you

 294 7 from loud noise, like an impulse noise; is

 294 8 that right?

 294 9 MR. FIELDS: Objection to form.

 294 10 THE WITNESS: I assume that to

 294 11 be true.

Re: [294:5-294:11]

Def Obj Foundation (602)

OVERRULED

298:5 - 298:16 Klun

 298 5 Q. Okay. So, Mr. Klun, you see

 298 6 this is an e-mail from Brian Myers on May 7,

 298 7 2003, to John Komada at DSCP.

 298 8 Do you see that?

 298 9 A. Yes.

 298 10 Q. Okay. And Brian is writing --

 298 11 do you know who Mr. Komada is?

 298 12 A. No, I do not know.

 298 13 Q. You know who the Defense

 298 14 Logistics Agency is that handles purchasing

 298 15 for the US military, right?

 298 16 A. No. I don't know nor recall.

Re: [298:5-298:16]

Def Obj Foundation (602)

OVERRULED

298:17 - 301:20 Klun

 298 17 Q. Let's see what Mr. Myers, who

 298 18 you worked with, told Mr. Komada back in

Re: [298:17-301:20]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 110 of 345
Klun 85

 298 19 2003.

 298 20 He says, "John, I had to

 298 21 consult with a few other folks, but these

 298 22 changes are warranted. Two notes for you:

 298 23 Number 1, we consider the acoustical

 298 24 impedance test under sampling for inspection

 298 25 paragraph to be proprietary."

 299 1 Do you see that?

 299 2 A. Yes.

 299 3 Q. Did you remember that the ARC

 299 4 testing that Aearo put into this -- this

 299 5 medical procurement description document,

 299 6 that Aearo considered that to be a

 299 7 proprietary test?

 299 8 A. Do not know nor recall.

 299 9 Q. And the acoustical impedance

 299 10 test that Aearo was putting into that medical

 299 11 procurement item description document, that

 299 12 was the ARC testing, right? That's what ARC

 299 13 tested?

 299 14 MR. FIELDS: Sorry. Objection.

 299 15 Form.

 299 16 THE WITNESS: That's what the

 299 17 documents say, yes.

 299 18 QUESTIONS BY MR. OVERHOLTZ:

 299 19 Q. Because if we look back at

 299 20 slide 78, which is already an exhibit, under

 299 21 Sound Attenuation, this Medical Procurement

 299 22 Item Description said, "Sampling for

 299 23 inspection of sound attenuation of the

 299 24 level-dependent yellow end shall be

 299 25 100 percent."

 300 1 Right?

 300 2 A. Yes.

 300 3 Q. "And shall be verified using an

 300 4 acoustical impedance test."

 300 5 Right?

 300 6 A. Yes, I see that now.

 300 7 Q. Okay. So, Zach, if you can let

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 111 of 345
Klun 86

 300 8 me have back the ELMO real quick.

 300 9 So from what we saw from Brian

 300 10 Myers' e-mail to John Komada is that Aearo

 300 11 said that the ARC test was a proprietary

 300 12 test, and under that sampling paragraph, they

 300 13 were going to test 100 percent of the plugs

 300 14 for sound attenuation of the yellow end using

 300 15 that acoustical resistance test, right?

 300 16 MR. FIELDS: Object to form.

 300 17 THE WITNESS: That's what the

 300 18 document says.

 300 19 QUESTIONS BY MR. OVERHOLTZ:

 300 20 Q. And then the other thing we

 300 21 learned was that at least by August of '02

 300 22 through May of '03, when Brian Myers sent

 300 23 that e-mail, that TJR Mexico had lost the

 300 24 calibration plugs, right?

 300 25 MR. FIELDS: Objection. Form.

 301 1 THE WITNESS: I personally

 301 2 don't know and don't recall.

 301 3 QUESTIONS BY MR. OVERHOLTZ:

 301 4 Q. That's what those documents

 301 5 said, right, between Kieper --

 301 6 A. That's what the document says.

 301 7 Q. Okay. And the other thing that

 301 8 we know is that Aearo had TJR Mexico assemble

 301 9 and QC test the plugs, right?

 301 10 A. Yes.

 301 11 Q. All right. So, now -- so in

 301 12 2003 then -- this is about a year before you

 301 13 sent Kieper and Zielinski down to San Luis

 301 14 Potos� to check on the situation -- things

 301 15 had gotten a lot worse with respect to the

 301 16 assembly and testing of the plugs at TJR.

 301 17 Do you remember that?

 301 18 MR. FIELDS: Objection.

 301 19 THE WITNESS: I do not know nor

 301 20 recall.

299:9 - 299:17 Klun Re: [299:9-299:17] OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 112 of 345
Klun 87

 299 9 Q. And the acoustical impedance

 299 10 test that Aearo was putting into that medical

 299 11 procurement item description document, that

 299 12 was the ARC testing, right? That's what ARC

 299 13 tested?

 299 14 MR. FIELDS: Sorry. Objection.

 299 15 Form.

 299 16 THE WITNESS: That's what the

 299 17 documents say, yes.

Def Obj Foundation (602); 702

300:7 - 300:18 Klun

 300 7 Q. Okay. So, Zach, if you can let

 300 8 me have back the ELMO real quick.

 300 9 So from what we saw from Brian

 300 10 Myers' e-mail to John Komada is that Aearo

 300 11 said that the ARC test was a proprietary

 300 12 test, and under that sampling paragraph, they

 300 13 were going to test 100 percent of the plugs

 300 14 for sound attenuation of the yellow end using

 300 15 that acoustical resistance test, right?

 300 16 MR. FIELDS: Object to form.

 300 17 THE WITNESS: That's what the

 300 18 document says.

Re: [300:7-300:18]

Def Obj Hearsay (801, 802); Foundation 

(602); Compound (611, 403)

OVERRULED

301:11 - 301:20 Klun

 301 11 Q. All right. So, now -- so in

 301 12 2003 then -- this is about a year before you

 301 13 sent Kieper and Zielinski down to San Luis

 301 14 Potos� to check on the situation -- things

 301 15 had gotten a lot worse with respect to the

 301 16 assembly and testing of the plugs at TJR.

 301 17 Do you remember that?

 301 18 MR. FIELDS: Objection.

 301 19 THE WITNESS: I do not know nor

 301 20 recall.

Re: [301:11-301:20]

Def Obj Foundation (602)

SUSTAINED

301:21 - 302:1 Klun

 301 21 (Klun Exhibit 37 marked for

 301 22 identification.)

 301 23 QUESTIONS BY MR. OVERHOLTZ:

 301 24 Q. All right. Let's look at -- if

 301 25 we could go to slide 83, Zach, and we'll mark

Re: [301:21-302:1]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 113 of 345
Klun 88

 302 1 as Exhibit Number 37 P2269.

302:8 - 302:8 Klun

 302 8 QUESTIONS BY MR. OVERHOLTZ:

302:9 - 303:23 Klun

 302 9 Q. So this is Exhibit 37, which is

 302 10 P2269. This is a February 28, 2003 monthly

 302 11 report from Elliott Berger to Dick Knauer.

 302 12 Do you see that, Mr. Klun?

 302 13 A. Yes. Yes.

 302 14 Q. On February 28th, Elliott

 302 15 Berger, who ran the lab, writes to Dick

 302 16 Knauer, his boss, and if you can look with me

 302 17 at the bottom, says, "RWK" -- that would be

 302 18 Ron Kieper, right?

 302 19 A. Yes.

 302 20 Q. "RWK assisted Gordon Grogan and

 302 21 spoke with Bob Zielinski about the problems

 302 22 with the Combat Arms plugs in Mexico. He

 302 23 recommended that one of the ARCs be sent to

 302 24 Indianapolis so the plugs could be measured

 302 25 in the lab to help determine why Mexico's

 303 1 measurements had an 80 percent reject rate."

 303 2 Do you see that?

 303 3 A. Yes, I see that.

 303 4 Q. And that was on February 28th

 303 5 of 2003 that Mr. Berger put that in his

 303 6 monthly report.

 303 7 Do you see that?

 303 8 A. Yes.

 303 9 Q. And that had caused a big

 303 10 problem, because the plugs down in Mexico

 303 11 were coming in out of spec, right?

 303 12 MR. FIELDS: Objection to form.

 303 13 THE WITNESS: That, I do not

 303 14 know or recall.

 303 15 QUESTIONS BY MR. OVERHOLTZ:

 303 16 Q. Okay. Because just a day

 303 17 earlier, you had approved a waiver to sell

 303 18 the plugs as-is out of spec, right?

Re: [302:9-303:23]

Def Obj 3M MIL No. 26; Foundation 

(602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 114 of 345
Klun 89

 303 19 MR. FIELDS: Objection to form.

 303 20 THE WITNESS: I approved a

 303 21 quality waiver.

 303 22 (Klun Exhibit 38 marked for

 303 23 identification.)

303:9 - 303:14 Klun

 303 9 Q. And that had caused a big

 303 10 problem, because the plugs down in Mexico

 303 11 were coming in out of spec, right?

 303 12 MR. FIELDS: Objection to form.

 303 13 THE WITNESS: That, I do not

 303 14 know or recall.

Re: [303:9-303:14]

Def Obj Foundation (602); Vague (611, 

403); 702

OVERRULED

303:16 - 303:21 Klun

 303 16 Q. Okay. Because just a day

 303 17 earlier, you had approved a waiver to sell

 303 18 the plugs as-is out of spec, right?

 303 19 MR. FIELDS: Objection to form.

 303 20 THE WITNESS: I approved a

 303 21 quality waiver.

Re: [303:16-303:21]

Def Obj Misstates; Argumentative (611, 

403)

OVERRULED

304:21 - 307:16 Klun

 304 21 Q. So if we can look up at the top

 304 22 there, you see that there is a type of

 304 23 request, and the number is 351.

 304 24 Do you see that?

 304 25 A. Yes.

 305 1 Q. And it says, "Waiver,

 305 2 permission to accept as-is."

 305 3 Do you see that?

 305 4 A. Yes.

 305 5 Q. And as-is means you're just

 305 6 going to sell it with whatever defects it

 305 7 has. As-is, right?

 305 8 MR. FIELDS: Objection to form.

 305 9 THE WITNESS: I don't agree.

 305 10 QUESTIONS BY MR. OVERHOLTZ:

 305 11 Q. I mean, as --

 305 12 A. Waiver is -- a waiver doesn't

 305 13 mean it's out of spec.

 305 14 Q. The waiver says, "permission to

Re: [304:21-307:16]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 115 of 345
Klun 90

 305 15 accept, quote, 'as-is.'"

 305 16 That's what it says on the

 305 17 document, right?

 305 18 A. That's what it says, "as-is."

 305 19 Q. Right.

 305 20 And so if we can look down --

 305 21 and we just saw where Ron Kieper -- if we

 305 22 could just --

 305 23 Yeah, just blow up that test

 305 24 number/process paragraph and through

 305 25 discrepancy, Zach.

 306 1 We saw where Mr. Kieper had

 306 2 reported that there was an 80 percent failure

 306 3 rate of the plugs being out of spec.

 306 4 MR. FIELDS: Objection to form.

 306 5 QUESTIONS BY MR. OVERHOLTZ:

 306 6 Q. Right?

 306 7 A. That's what the document says.

 306 8 Q. Right.

 306 9 And so if we see here it says,

 306 10 "test number/process," and then it has a

 306 11 section called Percent Defective.

 306 12 Do you see that?

 306 13 A. Yes.

 306 14 Q. And the number is 80 percent,

 306 15 isn't it?

 306 16 A. That's what the document says.

 306 17 Q. Just like Mr. Berger wrote in

 306 18 his monthly report, right?

 306 19 A. I'd have to see the report of

 306 20 what he wrote to me in the report.

 306 21 Q. I mean, it's the one we just

 306 22 looked at.

 306 23 Do you see the paragraph that

 306 24 says, "discrepancy, explanation of need to

 306 25 waive this product"?

 307 1 A. Yes.

 307 2 Q. Reason for deviating from the

 307 3 process?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 116 of 345
Klun 91

 307 4 A. Uh-huh.

 307 5 Q. It says, "Request that the spec

 307 6 range for the Mexico test equipment be

 307 7 increased, both upper and lower limits, by

 307 8 .6 MVs for a temporary time until the test

 307 9 equipment can be tested/calibrated by E-A-R

 307 10 Specialty Composites."

 307 11 Do you see that?

 307 12 A. Yes.

 307 13 And then it says, "By

 307 14 increasing the range, the test equipment will

 307 15 be comparable to equipment at ER -- ERA

 307 16 Specialty Composites."

305:5 - 305:9 Klun

 305 5 Q. And as-is means you're just

 305 6 going to sell it with whatever defects it

 305 7 has. As-is, right?

 305 8 MR. FIELDS: Objection to form.

 305 9 THE WITNESS: I don't agree.

Re: [305:5-305:9]

Def Obj Argumentative; Misstates (611, 

403)

OVERRULED

306:1 - 306:7 Klun

 306 1 We saw where Mr. Kieper had

 306 2 reported that there was an 80 percent failure

 306 3 rate of the plugs being out of spec.

 306 4 MR. FIELDS: Objection to form.

 306 5 QUESTIONS BY MR. OVERHOLTZ:

 306 6 Q. Right?

 306 7 A. That's what the document says.

Re: [306:1-306:7]

Def Obj Foundation (602); 702

OVERRULED

308:2 - 308:6 Klun

 308 2 (Klun Exhibit 39 marked for

 308 3 identification.)

 308 4 QUESTIONS BY MR. OVERHOLTZ:

 308 5 Q. So if we then look at what

 308 6 happened next -- if we can bring up slide 87,

308:9 - 311:12 Klun

 308 9 You see this is an e-mail at

 308 10 the top of the page from you on May 7, 2003,

 308 11 with the subject line being "the waiver 351

 308 12 on the Combat Arms filter."

 308 13 Do you see that?

Re: [308:9-311:12]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 117 of 345
Klun 92

 308 14 A. Uh-huh. Yes.

 308 15 Q. Okay. So on May 7, 2003, you

 308 16 wrote to Greg Grogan, Steve Todor, Bob

 308 17 Zielinski, Dick Knauer, Bill Bogdan and said,

 308 18 "Gordon, I have talked to Dick Knauer and

 308 19 Steve Todor. Based on their input, I approve

 308 20 this waiver."

 308 21 Right?

 308 22 A. I approved my section of the

 308 23 waiver --

 308 24 Q. From the quality department you

 308 25 approved the waiver; is that right?

 309 1 A. No, I don't agree. Quality

 309 2 would have been Steve Todor.

 309 3 Q. Okay. What would have been --

 309 4 by 2003 then, you would have been a technical

 309 5 approval, right?

 309 6 A. Correct, along with Dick

 309 7 Knauer.

 309 8 Q. Yeah. Dick Knauer was Elliott

 309 9 Berger's boss and Kieper's boss, and he

 309 10 reported up the chain to you in technical,

 309 11 right?

 309 12 A. Dick's -- Dick's the subject

 309 13 matter expert.

 309 14 Q. Yeah.

 309 15 And so you talked to him, and

 309 16 you approved this waiver to sell those

 309 17 earplugs and accept the ones, the 80 percent,

 309 18 that were out of spec, right?

 309 19 MR. FIELDS: Objection to form.

 309 20 THE WITNESS: As a technical --

 309 21 as a technical representative, I

 309 22 approved my portion of the label.

 309 23 QUESTIONS BY MR. OVERHOLTZ:

 309 24 Q. And that meant that those

 309 25 80 percent plugs that were out of spec

 310 1 originally could now be accepted as-is by

 310 2 increasing the spec range, right?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 118 of 345
Klun 93

 310 3 MR. FIELDS: Objection to form.

 310 4 THE WITNESS: I'm not a subject

 310 5 matter expert.

 310 6 QUESTIONS BY MR. OVERHOLTZ:

 310 7 Q. But we know --

 310 8 A. I --

 310 9 Q. Go ahead.

 310 10 A. Go ahead. Go ahead.

 310 11 Q. When you approved this waiver

 310 12 in May of '03, Mr. Kieper knew that the

 310 13 people down in Mexico had lost the

 310 14 calibration plugs. The machines weren't even

 310 15 calibrated.

 310 16 MR. FIELDS: Objection to form.

 310 17 THE WITNESS: I did not know.

 310 18 QUESTIONS BY MR. OVERHOLTZ:

 310 19 Q. So the specs that you were --

 310 20 A. Nor -- that situation.

 310 21 Q. I mean, the spec range that

 310 22 gets increased on this waiver, it's going to

 310 23 be applied by machines where the calibration

 310 24 plugs have been lost.

 310 25 That was the situation, right?

 311 1 MR. FIELDS: Objection to form.

 311 2 THE WITNESS: I don't know nor

 311 3 recall.

 311 4 QUESTIONS BY MR. OVERHOLTZ:

 311 5 Q. I mean, and this testing

 311 6 problem was causing problems for 3M to meet

 311 7 orders, right, and that's why you had to

 311 8 grant the waivers?

 311 9 A. That, I can't recall.

 311 10 (Klun Exhibits 40 and 41 marked

 311 11 for identification.)

 311 12 QUESTIONS BY MR. OVERHOLTZ:

309:15 - 309:22 Klun

 309 15 And so you talked to him, and

 309 16 you approved this waiver to sell those

 309 17 earplugs and accept the ones, the 80 percent,

Re: [309:15-309:22]

Def Obj Hearsay (801, 802); 

Argumentative; Misstates (611, 403)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 119 of 345
Klun 94

 309 18 that were out of spec, right?

 309 19 MR. FIELDS: Objection to form.

 309 20 THE WITNESS: As a technical --

 309 21 as a technical representative, I

 309 22 approved my portion of the label.

309:24 - 310:5 Klun

 309 24 Q. And that meant that those

 309 25 80 percent plugs that were out of spec

 310 1 originally could now be accepted as-is by

 310 2 increasing the spec range, right?

 310 3 MR. FIELDS: Objection to form.

 310 4 THE WITNESS: I'm not a subject

 310 5 matter expert.

Re: [309:24-310:5]

Def Obj Foundation (602); 702

OVERRULED

310:11 - 310:17 Klun

 310 11 Q. When you approved this waiver

 310 12 in May of '03, Mr. Kieper knew that the

 310 13 people down in Mexico had lost the

 310 14 calibration plugs. The machines weren't even

 310 15 calibrated.

 310 16 MR. FIELDS: Objection to form.

 310 17 THE WITNESS: I did not know.

Re: [310:11-310:17]

Def Obj Argumentative; Misstates (611, 

403); Foundation (602)

SUSTAINED

310:21 - 311:3 Klun

 310 21 Q. I mean, the spec range that

 310 22 gets increased on this waiver, it's going to

 310 23 be applied by machines where the calibration

 310 24 plugs have been lost.

 310 25 That was the situation, right?

 311 1 MR. FIELDS: Objection to form.

 311 2 THE WITNESS: I don't know nor

 311 3 recall.

Re: [310:21-311:3]

Def Obj Foundation (602); 702

OVERRULED

311:16 - 311:20 Klun

 311 16 And if you can see, there's an

 311 17 e-mail from Bob Zielinski to Dick Knauer at

 311 18 the bottom of the screen there.

 311 19 Can you see that, Mr. Klun?

 311 20 A. Yes.

312:1 - 312:1 Klun

 312 1 QUESTIONS BY MR. OVERHOLTZ:

312:2 - 313:24 Klun Re: [312:2-313:24] OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 120 of 345
Klun 95

 312 2 Q. It says, "Dick, as you can see

 312 3 from these messages, they are continuing to

 312 4 increase the forecast on the Combat Arms

 312 5 plugs. We have word that we might get an

 312 6 order for over 300,000 pair. If we do, we

 312 7 will not be able to fill that order

 312 8 completely until sometime in September

 312 9 because of constraint at the tester."

 312 10 Do you see that?

 312 11 A. Yes.

 312 12 Q. And so Dick Knauer, who

 312 13 reported to you, e-mails Elliott Berger and

 312 14 says, "Berger, please see attached," on July

 312 15 26, 2004.

 312 16 Do you see that?

 312 17 A. Not yet, I don't see this.

 312 18 Q. It's up at the top of the

 312 19 screen there. That's the response e-mail.

 312 20 A. Okay. All right.

 312 21 MR. FIELDS: I'm sorry,

 312 22 Mr. Overholtz --

 312 23 MR. OVERHOLTZ: This will be

 312 24 Exhibit 41.

 312 25 

 313 1 QUESTIONS BY MR. OVERHOLTZ:

 313 2 Q. So if we look at Exhibit 41,

 313 3 and I've got it blown up there on the left

 313 4 there of the screen, your report, Dick

 313 5 Knauer, e-mails Elliott Berger and says,

 313 6 "Berger, based on this request, please check

 313 7 on the timing and cost of both one new and

 313 8 two new test units."

 313 9 Do you see that?

 313 10 A. Yes, I see it.

 313 11 Q. Did Mr. Knauer tell you, hey,

 313 12 hey, Mr. Klun, they're having problems and

 313 13 constraints at the tester. We need to try to

 313 14 get some new test units?

 313 15 A. No, I do not know nor recall.

Def Obj Foundation (602)

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 121 of 345
Klun 96

 313 16 Q. I mean, you're having problems,

 313 17 you're selling as-is plugs under waiver, and

 313 18 you're talking about buying one, maybe two,

 313 19 $700 machines to test the plugs?

 313 20 MR. FIELDS: Objection.

 313 21 Argumentative.

 313 22 THE WITNESS: That's what I

 313 23 said. I don't know nor recall this

 313 24 document.

312:2 - 319:8 Klun

 312 2 Q. It says, "Dick, as you can see

 312 3 from these messages, they are continuing to

 312 4 increase the forecast on the Combat Arms

 312 5 plugs. We have word that we might get an

 312 6 order for over 300,000 pair. If we do, we

 312 7 will not be able to fill that order

 312 8 completely until sometime in September

 312 9 because of constraint at the tester."

 312 10 Do you see that?

 312 11 A. Yes.

 312 12 Q. And so Dick Knauer, who

 312 13 reported to you, e-mails Elliott Berger and

 312 14 says, "Berger, please see attached," on July

 312 15 26, 2004.

 312 16 Do you see that?

 312 17 A. Not yet, I don't see this.

 312 18 Q. It's up at the top of the

 312 19 screen there. That's the response e-mail.

 312 20 A. Okay. All right.

 312 21 MR. FIELDS: I'm sorry,

 312 22 Mr. Overholtz --

 312 23 MR. OVERHOLTZ: This will be

 312 24 Exhibit 41.

 312 25 

 313 1 QUESTIONS BY MR. OVERHOLTZ:

 313 2 Q. So if we look at Exhibit 41,

 313 3 and I've got it blown up there on the left

 313 4 there of the screen, your report, Dick

 313 5 Knauer, e-mails Elliott Berger and says,

Re: [312:2-319:8]

Def Obj 3M MIL No. 26

NEEDS TO BE REMOVED—

DUPLICATIVE 

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 122 of 345
Klun 97

 313 6 "Berger, based on this request, please check

 313 7 on the timing and cost of both one new and

 313 8 two new test units."

 313 9 Do you see that?

 313 10 A. Yes, I see it.

 313 11 Q. Did Mr. Knauer tell you, hey,

 313 12 hey, Mr. Klun, they're having problems and

 313 13 constraints at the tester. We need to try to

 313 14 get some new test units?

 313 15 A. No, I do not know nor recall.

 313 16 Q. I mean, you're having problems,

 313 17 you're selling as-is plugs under waiver, and

 313 18 you're talking about buying one, maybe two,

 313 19 $700 machines to test the plugs?

 313 20 MR. FIELDS: Objection.

 313 21 Argumentative.

 313 22 THE WITNESS: That's what I

 313 23 said. I don't know nor recall this

 313 24 document.

 313 25 

 314 1 QUESTIONS BY MR. OVERHOLTZ:

 314 2 Q. Okay. So in light of this,

 314 3 instead of -- instead of getting the machines

 314 4 fixed, you guys just grant another quality

 314 5 waiver down in Mexico, right?

 314 6 A. I don't know nor recall.

 314 7 (Klun Exhibit 42 marked for

 314 8 identification.)

 314 9 QUESTIONS BY MR. OVERHOLTZ:

 314 10 Q. All right. Let's look at

 314 11 slide 92, if we can, Zach, and we'll mark

 314 12 this as Exhibit 42, which is BK-408.

 314 13 And I've written on the right

 314 14 there that October 11th, Aearo issues a

 314 15 second quality waiver for the ARC testing in

 314 16 Mexico.

 314 17 Do you remember the second

 314 18 waiver that got approved?

 314 19 A. No, I do not recall.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 123 of 345
Klun 98

 314 20 Q. And if we look at this waiver,

 314 21 it's number 416, dated October 11, 2004,

 314 22 there on the top right.

 314 23 Do you see that?

 314 24 A. Yes.

 314 25 Q. And then it says -- this time

 315 1 it's marked "deviation, permission in advance

 315 2 of manufacture," right?

 315 3 A. Yes.

 315 4 Q. Okay. And so the -- and the

 315 5 finished product is the Combat Arms, right?

 315 6 A. Yes.

 315 7 Q. Okay. And it has a

 315 8 specification value of the original result,

 315 9 and then it has an actual value.

 315 10 Do you see that?

 315 11 A. Yes.

 315 12 Q. It says "Discrepancy" in the

 315 13 next paragraph.

 315 14 Can you read that?

 315 15 A. There we go.

 315 16 Q. It says, "Discrepancy: Request

 315 17 that the test range for the Mexico test

 315 18 equipment be increased, raising the upper

 315 19 limit to 6.1. This will be in effect for

 315 20 35 days. At that time, TJR agrees to send

 315 21 their test unit to Indianapolis to have it

 315 22 calibrated -- recalibrated by E-A-RCAL."

 315 23 Do you see that?

 315 24 A. Yes.

 315 25 Q. So for 35 days they're going to

 316 1 keep putting Combat Arms plugs together and

 316 2 testing them on the machines that haven't

 316 3 been calibrated, to sell to the US military,

 316 4 right?

 316 5 MR. FIELDS: Objection to form.

 316 6 THE WITNESS: Go with what the

 316 7 document says.

 316 8 QUESTIONS BY MR. OVERHOLTZ:

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 124 of 345
Klun 99

 316 9 Q. All right. And then under

 316 10 Material Disposition below it says, "Use,

 316 11 quote, 'as-is.'"

 316 12 Right?

 316 13 And it's approved by quality,

 316 14 technical and contract manufacturing.

 316 15 Do you see that?

 316 16 A. Yes.

 316 17 Is my name on there?

 316 18 Q. No, I didn't see your name. I

 316 19 saw Dick Knauer, who reported to you, on

 316 20 there.

 316 21 A. Okay.

 316 22 Q. He was technical, right?

 316 23 A. Correct. So then I'll just say

 316 24 I don't know nor recall this document.

 316 25 Q. Well, let me ask you this:

 317 1 When these plugs that were assembled and

 317 2 tested and accepted as-is that were made

 317 3 under waiver, did you guys send a copy of

 317 4 this waiver information to the military with

 317 5 the boxes of plugs so they'd know about it?

 317 6 MR. FIELDS: Objection to form.

 317 7 THE WITNESS: I do not know nor

 317 8 recall.

 317 9 QUESTIONS BY MR. OVERHOLTZ:

 317 10 Q. Do you think they deserved to

 317 11 know that the plugs they were buying, that

 317 12 Aearo was letting the people in Mexico sell

 317 13 plugs that were out of spec, on uncalibrated

 317 14 machines?

 317 15 MR. FIELDS: Objection. Form.

 317 16 THE WITNESS: Again, I don't

 317 17 know nor recall this.

 317 18 QUESTIONS BY MR. OVERHOLTZ:

 317 19 Q. Yeah, but what do you think is

 317 20 right or wrong? Do you have an idea as to

 317 21 whether or not it's wrong to sell plugs that

 317 22 are out of spec, on uncalibrated machines, to

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 125 of 345
Klun 100

 317 23 the United States military for the soldiers

 317 24 to rely on when they were being deployed over

 317 25 to Afghanistan and Iraq in 2004?

 318 1 MR. FIELDS: Objection. Form.

 318 2 THE WITNESS: This is a waiver

 318 3 of the test equipment, not the

 318 4 product.

 318 5 QUESTIONS BY MR. OVERHOLTZ:

 318 6 Q. Yeah, they -- and without

 318 7 calibration and without proper testing, you

 318 8 can't verify the quality of the product,

 318 9 right?

 318 10 MR. FIELDS: Objection. Form.

 318 11 THE WITNESS: Not being a

 318 12 subject matter expert, I don't know

 318 13 nor can I recall this.

 318 14 QUESTIONS BY MR. OVERHOLTZ:

 318 15 Q. So in November of 2004, as we

 318 16 saw previously in Exhibit 16, you sent Ron

 318 17 and Bob down to Mexico to check on the

 318 18 situation, right?

 318 19 A. The company sent Ron and Bob

 318 20 down, yes.

 318 21 Q. All right. And if we can look

 318 22 at slide 100 again, Zach.

 318 23 You sent this e-mail -- or this

 318 24 is fine. You sent this e-mail on

 318 25 November 19, '04, to Kieper and Knauer, Todor

 319 1 and Power and Zielinski regarding TJR

 319 2 quality, and you attach an action plan --

 319 3 A. Yes, that's what the document

 319 4 says.

 319 5 Q. Right.

 319 6 And then it said the plans are

 319 7 for Bob and Ron to travel to Mexico, right?

 319 8 A. Yes.

313:16 - 313:24 Klun

 313 16 Q. I mean, you're having problems,

 313 17 you're selling as-is plugs under waiver, and

Re: [313:16-313:24]

Def Obj Hearsay (801, 802); 

Argumentative (611, 403); Foundation 

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 126 of 345
Klun 101

 313 18 you're talking about buying one, maybe two,

 313 19 $700 machines to test the plugs?

 313 20 MR. FIELDS: Objection.

 313 21 Argumentative.

 313 22 THE WITNESS: That's what I

 313 23 said. I don't know nor recall this

 313 24 document.

(602); 702

314:2 - 319:8 Klun

 314 2 Q. Okay. So in light of this,

 314 3 instead of -- instead of getting the machines

 314 4 fixed, you guys just grant another quality

 314 5 waiver down in Mexico, right?

 314 6 A. I don't know nor recall.

 314 7 (Klun Exhibit 42 marked for

 314 8 identification.)

 314 9 QUESTIONS BY MR. OVERHOLTZ:

 314 10 Q. All right. Let's look at

 314 11 slide 92, if we can, Zach, and we'll mark

 314 12 this as Exhibit 42, which is BK-408.

 314 13 And I've written on the right

 314 14 there that October 11th, Aearo issues a

 314 15 second quality waiver for the ARC testing in

 314 16 Mexico.

 314 17 Do you remember the second

 314 18 waiver that got approved?

 314 19 A. No, I do not recall.

 314 20 Q. And if we look at this waiver,

 314 21 it's number 416, dated October 11, 2004,

 314 22 there on the top right.

 314 23 Do you see that?

 314 24 A. Yes.

 314 25 Q. And then it says -- this time

 315 1 it's marked "deviation, permission in advance

 315 2 of manufacture," right?

 315 3 A. Yes.

 315 4 Q. Okay. And so the -- and the

 315 5 finished product is the Combat Arms, right?

 315 6 A. Yes.

 315 7 Q. Okay. And it has a

Re: [314:2-319:8]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 127 of 345
Klun 102

 315 8 specification value of the original result,

 315 9 and then it has an actual value.

 315 10 Do you see that?

 315 11 A. Yes.

 315 12 Q. It says "Discrepancy" in the

 315 13 next paragraph.

 315 14 Can you read that?

 315 15 A. There we go.

 315 16 Q. It says, "Discrepancy: Request

 315 17 that the test range for the Mexico test

 315 18 equipment be increased, raising the upper

 315 19 limit to 6.1. This will be in effect for

 315 20 35 days. At that time, TJR agrees to send

 315 21 their test unit to Indianapolis to have it

 315 22 calibrated -- recalibrated by E-A-RCAL."

 315 23 Do you see that?

 315 24 A. Yes.

 315 25 Q. So for 35 days they're going to

 316 1 keep putting Combat Arms plugs together and

 316 2 testing them on the machines that haven't

 316 3 been calibrated, to sell to the US military,

 316 4 right?

 316 5 MR. FIELDS: Objection to form.

 316 6 THE WITNESS: Go with what the

 316 7 document says.

 316 8 QUESTIONS BY MR. OVERHOLTZ:

 316 9 Q. All right. And then under

 316 10 Material Disposition below it says, "Use,

 316 11 quote, 'as-is.'"

 316 12 Right?

 316 13 And it's approved by quality,

 316 14 technical and contract manufacturing.

 316 15 Do you see that?

 316 16 A. Yes.

 316 17 Is my name on there?

 316 18 Q. No, I didn't see your name. I

 316 19 saw Dick Knauer, who reported to you, on

 316 20 there.

 316 21 A. Okay.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 128 of 345
Klun 103

 316 22 Q. He was technical, right?

 316 23 A. Correct. So then I'll just say

 316 24 I don't know nor recall this document.

 316 25 Q. Well, let me ask you this:

 317 1 When these plugs that were assembled and

 317 2 tested and accepted as-is that were made

 317 3 under waiver, did you guys send a copy of

 317 4 this waiver information to the military with

 317 5 the boxes of plugs so they'd know about it?

 317 6 MR. FIELDS: Objection to form.

 317 7 THE WITNESS: I do not know nor

 317 8 recall.

 317 9 QUESTIONS BY MR. OVERHOLTZ:

 317 10 Q. Do you think they deserved to

 317 11 know that the plugs they were buying, that

 317 12 Aearo was letting the people in Mexico sell

 317 13 plugs that were out of spec, on uncalibrated

 317 14 machines?

 317 15 MR. FIELDS: Objection. Form.

 317 16 THE WITNESS: Again, I don't

 317 17 know nor recall this.

 317 18 QUESTIONS BY MR. OVERHOLTZ:

 317 19 Q. Yeah, but what do you think is

 317 20 right or wrong? Do you have an idea as to

 317 21 whether or not it's wrong to sell plugs that

 317 22 are out of spec, on uncalibrated machines, to

 317 23 the United States military for the soldiers

 317 24 to rely on when they were being deployed over

 317 25 to Afghanistan and Iraq in 2004?

 318 1 MR. FIELDS: Objection. Form.

 318 2 THE WITNESS: This is a waiver

 318 3 of the test equipment, not the

 318 4 product.

 318 5 QUESTIONS BY MR. OVERHOLTZ:

 318 6 Q. Yeah, they -- and without

 318 7 calibration and without proper testing, you

 318 8 can't verify the quality of the product,

 318 9 right?

 318 10 MR. FIELDS: Objection. Form.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 129 of 345
Klun 104

 318 11 THE WITNESS: Not being a

 318 12 subject matter expert, I don't know

 318 13 nor can I recall this.

 318 14 QUESTIONS BY MR. OVERHOLTZ:

 318 15 Q. So in November of 2004, as we

 318 16 saw previously in Exhibit 16, you sent Ron

 318 17 and Bob down to Mexico to check on the

 318 18 situation, right?

 318 19 A. The company sent Ron and Bob

 318 20 down, yes.

 318 21 Q. All right. And if we can look

 318 22 at slide 100 again, Zach.

 318 23 You sent this e-mail -- or this

 318 24 is fine. You sent this e-mail on

 318 25 November 19, '04, to Kieper and Knauer, Todor

 319 1 and Power and Zielinski regarding TJR

 319 2 quality, and you attach an action plan --

 319 3 A. Yes, that's what the document

 319 4 says.

 319 5 Q. Right.

 319 6 And then it said the plans are

 319 7 for Bob and Ron to travel to Mexico, right?

 319 8 A. Yes.

314:10 - 316:24 Klun

 314 10 Q. All right. Let's look at

 314 11 slide 92, if we can, Zach, and we'll mark

 314 12 this as Exhibit 42, which is BK-408.

 314 13 And I've written on the right

 314 14 there that October 11th, Aearo issues a

 314 15 second quality waiver for the ARC testing in

 314 16 Mexico.

 314 17 Do you remember the second

 314 18 waiver that got approved?

 314 19 A. No, I do not recall.

 314 20 Q. And if we look at this waiver,

 314 21 it's number 416, dated October 11, 2004,

 314 22 there on the top right.

 314 23 Do you see that?

 314 24 A. Yes.

Re: [314:10-316:24]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 130 of 345
Klun 105

 314 25 Q. And then it says -- this time

 315 1 it's marked "deviation, permission in advance

 315 2 of manufacture," right?

 315 3 A. Yes.

 315 4 Q. Okay. And so the -- and the

 315 5 finished product is the Combat Arms, right?

 315 6 A. Yes.

 315 7 Q. Okay. And it has a

 315 8 specification value of the original result,

 315 9 and then it has an actual value.

 315 10 Do you see that?

 315 11 A. Yes.

 315 12 Q. It says "Discrepancy" in the

 315 13 next paragraph.

 315 14 Can you read that?

 315 15 A. There we go.

 315 16 Q. It says, "Discrepancy: Request

 315 17 that the test range for the Mexico test

 315 18 equipment be increased, raising the upper

 315 19 limit to 6.1. This will be in effect for

 315 20 35 days. At that time, TJR agrees to send

 315 21 their test unit to Indianapolis to have it

 315 22 calibrated -- recalibrated by E-A-RCAL."

 315 23 Do you see that?

 315 24 A. Yes.

 315 25 Q. So for 35 days they're going to

 316 1 keep putting Combat Arms plugs together and

 316 2 testing them on the machines that haven't

 316 3 been calibrated, to sell to the US military,

 316 4 right?

 316 5 MR. FIELDS: Objection to form.

 316 6 THE WITNESS: Go with what the

 316 7 document says.

 316 8 QUESTIONS BY MR. OVERHOLTZ:

 316 9 Q. All right. And then under

 316 10 Material Disposition below it says, "Use,

 316 11 quote, 'as-is.'"

 316 12 Right?

 316 13 And it's approved by quality,

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 131 of 345
Klun 106

 316 14 technical and contract manufacturing.

 316 15 Do you see that?

 316 16 A. Yes.

 316 17 Is my name on there?

 316 18 Q. No, I didn't see your name. I

 316 19 saw Dick Knauer, who reported to you, on

 316 20 there.

 316 21 A. Okay.

 316 22 Q. He was technical, right?

 316 23 A. Correct. So then I'll just say

 316 24 I don't know nor recall this document.

315:25 - 316:7 Klun

 315 25 Q. So for 35 days they're going to

 316 1 keep putting Combat Arms plugs together and

 316 2 testing them on the machines that haven't

 316 3 been calibrated, to sell to the US military,

 316 4 right?

 316 5 MR. FIELDS: Objection to form.

 316 6 THE WITNESS: Go with what the

 316 7 document says.

Re: [315:25-316:7]

Def Obj Foundation (602); 

Argumentative; Misstates (611, 403); 

Hearsay (801, 802)

OVERRULED

316:25 - 317:8 Klun

 316 25 Q. Well, let me ask you this:

 317 1 When these plugs that were assembled and

 317 2 tested and accepted as-is that were made

 317 3 under waiver, did you guys send a copy of

 317 4 this waiver information to the military with

 317 5 the boxes of plugs so they'd know about it?

 317 6 MR. FIELDS: Objection to form.

 317 7 THE WITNESS: I do not know nor

 317 8 recall.

Re: [316:25-317:8]

Def Obj Foundation (602); Compound 

(611, 403)

OVERRULED

317:10 - 317:17 Klun

 317 10 Q. Do you think they deserved to

 317 11 know that the plugs they were buying, that

 317 12 Aearo was letting the people in Mexico sell

 317 13 plugs that were out of spec, on uncalibrated

 317 14 machines?

 317 15 MR. FIELDS: Objection. Form.

 317 16 THE WITNESS: Again, I don't

 317 17 know nor recall this.

Re: [317:10-317:17]

Def Obj Foundation (602); Misstates; 

Argumentative (611, 403); 701

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 132 of 345
Klun 107

317:19 - 318:4 Klun

 317 19 Q. Yeah, but what do you think is

 317 20 right or wrong? Do you have an idea as to

 317 21 whether or not it's wrong to sell plugs that

 317 22 are out of spec, on uncalibrated machines, to

 317 23 the United States military for the soldiers

 317 24 to rely on when they were being deployed over

 317 25 to Afghanistan and Iraq in 2004?

 318 1 MR. FIELDS: Objection. Form.

 318 2 THE WITNESS: This is a waiver

 318 3 of the test equipment, not the

 318 4 product.

Re: [317:19-318:4]

Def Obj 701; Foundation (602); 

Misstates; Argumentative (611, 403)

OVERRULED; however, the 

following lines must be deleted: “for 

the soldiers to rely on when they were 

being deployed over to Afghanistan 

and Iraq in 2004”

318:6 - 318:13 Klun

 318 6 Q. Yeah, they -- and without

 318 7 calibration and without proper testing, you

 318 8 can't verify the quality of the product,

 318 9 right?

 318 10 MR. FIELDS: Objection. Form.

 318 11 THE WITNESS: Not being a

 318 12 subject matter expert, I don't know

 318 13 nor can I recall this.

Re: [318:6-318:13]

Def Obj Foundation (602); 702

OVERRULED

319:23 - 320:2 Klun

 319 23 Q. That's the one on number 3 that

 319 24 said, "because of equipment measurement

 319 25 problems, TJR continues to operate with a

 320 1 quality waiver," right?

 320 2 A. Yes.

Re: [319:23-320:2]

Def Obj 3M MIL No. 26

OVERRULED

320:11 - 323:2 Klun

 320 11 Q. I mean, this action plan on the

 320 12 slide 104, the third page, it said, "R&D

 320 13 quality problem for many reasons has taken

 320 14 over six months to address equipment

 320 15 calibration problems for the Combat Arms

 320 16 product."

 320 17 Do you see that?

 320 18 A. It says, "R&D quality

 320 19 position," not problem.

 320 20 Q. Oh. Let's do it again.

 320 21 "R&D quality position," right?

Re: [320:11-323:2]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 133 of 345
Klun 108

 320 22 A. Right.

 320 23 Q. "For many reasons has taken

 320 24 over six months to address equipment

 320 25 calibration problems for the Combat Arms

 321 1 product," right?

 321 2 A. That's what the document says.

 321 3 Q. But we know from the documents

 321 4 that the plugs had been lost since at least

 321 5 August of '02, right?

 321 6 MR. FIELDS: Objection. Form.

 321 7 THE WITNESS: That, I do not

 321 8 know.

 321 9 QUESTIONS BY MR. OVERHOLTZ:

 321 10 Q. I mean, this is two years

 321 11 later --

 321 12 A. Nor recall.

 321 13 Q. This is two years later from

 321 14 Mr. Ramirez e-mailing "we've lost the

 321 15 calibration plugs," right?

 321 16 MR. FIELDS: Objection. Form.

 321 17 THE WITNESS: I do not know nor

 321 18 recall that e-mail.

 321 19 QUESTIONS BY MR. OVERHOLTZ:

 321 20 Q. Yeah, but that's what the

 321 21 e-mail said, right?

 321 22 A. That's what the documents say.

 321 23 Q. So you didn't -- you don't

 321 24 remember getting a call from Bob or Ron while

 321 25 they were down in Mexico, right?

 322 1 A. Correct. I do not recall.

 322 2 (Klun Exhibit 43 marked for

 322 3 identification.)

 322 4 QUESTIONS BY MR. OVERHOLTZ:

 322 5 Q. Let's see what Mr. Kieper said

 322 6 while he was down in Mexico. Can we pull up

 322 7 what we'll mark as Exhibit 43, which is

 322 8 BK-460.

 322 9 Okay. So if you see -- if we

 322 10 can pull up that e-mail from Andy Haapapuro

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 134 of 345
Klun 109

 322 11 at Etymotic, he was the guy at Etymotic that

 322 12 had written that technical report about the

 322 13 calibration being necessary.

 322 14 You see Ron Kieper, on

 322 15 November 19, 2004, receives an e-mail from

 322 16 Mr. Haapapuro. It says, "Greetings."

 322 17 Do you see that?

 322 18 A. Yes.

 322 19 Q. And then he says, "Ron," and he

 322 20 tells him he hopes he has safe travels.

 322 21 Do you see that?

 322 22 A. Yes.

 322 23 Q. Okay. So then if we can look,

 322 24 Ron -- he's responding to an e-mail from

 322 25 Kieper, who's sending an e-mail on

 323 1 November 19th, and he starts on the next

 323 2 page.

321:3 - 321:8 Klun

 321 3 Q. But we know from the documents

 321 4 that the plugs had been lost since at least

 321 5 August of '02, right?

 321 6 MR. FIELDS: Objection. Form.

 321 7 THE WITNESS: That, I do not

 321 8 know.

Re: [321:3-321:8]

Def Obj Foundation (602)

OVERRULED

321:13 - 321:18 Klun

 321 13 Q. This is two years later from

 321 14 Mr. Ramirez e-mailing "we've lost the

 321 15 calibration plugs," right?

 321 16 MR. FIELDS: Objection. Form.

 321 17 THE WITNESS: I do not know nor

 321 18 recall that e-mail.

Re: [321:13-321:18]

Def Obj Foundation (602)

OVERRULED

322:2 - 323:2 Klun

 322 2 (Klun Exhibit 43 marked for

 322 3 identification.)

 322 4 QUESTIONS BY MR. OVERHOLTZ:

 322 5 Q. Let's see what Mr. Kieper said

 322 6 while he was down in Mexico. Can we pull up

 322 7 what we'll mark as Exhibit 43, which is

 322 8 BK-460.

Re: [322:2-323:2]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 135 of 345
Klun 110

 322 9 Okay. So if you see -- if we

 322 10 can pull up that e-mail from Andy Haapapuro

 322 11 at Etymotic, he was the guy at Etymotic that

 322 12 had written that technical report about the

 322 13 calibration being necessary.

 322 14 You see Ron Kieper, on

 322 15 November 19, 2004, receives an e-mail from

 322 16 Mr. Haapapuro. It says, "Greetings."

 322 17 Do you see that?

 322 18 A. Yes.

 322 19 Q. And then he says, "Ron," and he

 322 20 tells him he hopes he has safe travels.

 322 21 Do you see that?

 322 22 A. Yes.

 322 23 Q. Okay. So then if we can look,

 322 24 Ron -- he's responding to an e-mail from

 322 25 Kieper, who's sending an e-mail on

 323 1 November 19th, and he starts on the next

 323 2 page.

323:9 - 328:3 Klun

 323 9 So you see where it says

 323 10 "Andy"?

 323 11 A. Yes.

 323 12 Q. And Mr. Kieper says, "Due to

 323 13 problems in San Luis, Mexico, I'm flying down

 323 14 there on Monday a.m. and returning Tuesday

 323 15 p.m."

 323 16 Do you see that?

 323 17 A. Yes.

 323 18 Q. So that's less than a two-day

 323 19 trip to figure out all those problems down

 323 20 there, right?

 323 21 MR. FIELDS: Objection. Form.

 323 22 THE WITNESS: That's what the

 323 23 document says.

 323 24 QUESTIONS BY MR. OVERHOLTZ:

 323 25 Q. And he says, "I will verify

 324 1 they are setting measurements up correctly

 324 2 and try to determine why their recent

Re: [323:9-328:3]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 136 of 345
Klun 111

 324 3 measurements have been .1 to .5 higher than

 324 4 the upper end of the spec for the Combat Arms

 324 5 plugs. Reject rates this week have been from

 324 6 70 to 90 percent, depending on the unit."

 324 7 Did I read that right?

 324 8 A. That's what the document says.

 324 9 Q. So you're operating under

 324 10 waivers by making the spec -- moving the

 324 11 goalpost for these plugs, and 90 percent are

 324 12 testing out of the original spec.

 324 13 MR. FIELDS: Objection to form.

 324 14 QUESTIONS BY MR. OVERHOLTZ:

 324 15 Q. Right?

 324 16 A. I don't know nor recall this

 324 17 document.

 324 18 Q. Okay. He says, "The most

 324 19 baffling problem they have described, one

 324 20 which I am really worried about, is that the

 324 21 output of the Z boxes tends to drift upward

 324 22 over a fairly short time period."

 324 23 Right?

 324 24 A. That's what the document says.

 324 25 Q. He says, "So anyway, that's my

 325 1 situation," in the next paragraph.

 325 2 He says, "When I return, if you

 325 3 reply positively, I will send Z Box Number 2

 325 4 to you for repair."

 325 5 Right?

 325 6 A. Yes.

 325 7 Q. He says, "Whatever happens,

 325 8 I'll probably have some interesting stories

 325 9 to tell you on my return."

 325 10 A. Yes.

 325 11 Q. Okay. So let's find out what

 325 12 happened when Kieper and Zielinski got back

 325 13 from Mexico.

 325 14 We can go to slide 115, Zach.

 325 15 The map slide.

 325 16 All right. So if you can look

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 137 of 345
Klun 112

 325 17 with me here, we see San Luis Potos�, Mexico,

 325 18 down at the bottom left of the screen, right?

 325 19 A. Yes.

 325 20 Q. And then Mr. Kieper flew all

 325 21 the way back to Indianapolis, right?

 325 22 MR. FIELDS: Objection. Form.

 325 23 THE WITNESS: According to the

 325 24 document, that's what it says he did.

 325 25 

 326 1 QUESTIONS BY MR. OVERHOLTZ:

 326 2 Q. All right. And even though he

 326 3 went down there believing that maybe they

 326 4 just had a problem in Mexico with their test

 326 5 machines, he made an interesting finding.

 326 6 Do you remember that?

 326 7 MR. FIELDS: Objection to form.

 326 8 THE WITNESS: I do not know nor

 326 9 recall.

 326 10 QUESTIONS BY MR. OVERHOLTZ:

 326 11 Q. You don't remember him telling

 326 12 either you or Berger or Dick Knauer that

 326 13 almost half of the plugs that he tested

 326 14 failed the testing in Mexico and also failed

 326 15 the testing in Indianapolis?

 326 16 MR. FIELDS: Objection. Form.

 326 17 THE WITNESS: I do not know nor

 326 18 recall.

 326 19 QUESTIONS BY MR. OVERHOLTZ:

 326 20 Q. I mean, if half the plugs are

 326 21 failing in the machines in Mexico and

 326 22 Indianapolis, that doesn't sound like a

 326 23 Mexican testing problem; that sounds like an

 326 24 earplug problem, doesn't it?

 326 25 MR. FIELDS: Objection to form.

 327 1 THE WITNESS: Again, I do not

 327 2 know nor recall this.

 327 3 QUESTIONS BY MR. OVERHOLTZ:

 327 4 Q. Being Dick Knauer and Kieper's

 327 5 boss, you didn't find out about any of this?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 138 of 345
Klun 113

 327 6 A. I don't recall.

 327 7 Q. You're the one -- you're the

 327 8 one that e-mailed around the plan to get

 327 9 things fixed, right?

 327 10 A. I didn't e-mail the plan. I

 327 11 called a meeting.

 327 12 Q. And you attached -- you --

 327 13 A. What we wanted to have occur.

 327 14 You saw -- you have the document.

 327 15 (Klun Exhibit 44 marked for

 327 16 identification.)

 327 17 QUESTIONS BY MR. OVERHOLTZ:

 327 18 Q. Right.

 327 19 So let's see what Mr. Kieper

 327 20 wrote when he got back.

 327 21 And we'll mark -- this is the

 327 22 slide next slide, Zach, and it's RK-407, and

 327 23 this will be Exhibit 44.

 327 24 A. Am I copied on that?

 327 25 Q. Well, I'm about to tell you.

 328 1 A. Okay.

 328 2 Q. All right. So if we look at

 328 3 this e-mail --

323:9 - 330:7 Klun

 323 9 So you see where it says

 323 10 "Andy"?

 323 11 A. Yes.

 323 12 Q. And Mr. Kieper says, "Due to

 323 13 problems in San Luis, Mexico, I'm flying down

 323 14 there on Monday a.m. and returning Tuesday

 323 15 p.m."

 323 16 Do you see that?

 323 17 A. Yes.

 323 18 Q. So that's less than a two-day

 323 19 trip to figure out all those problems down

 323 20 there, right?

 323 21 MR. FIELDS: Objection. Form.

 323 22 THE WITNESS: That's what the

 323 23 document says.

Re: [323:9-330:7]

Def Obj Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 139 of 345
Klun 114

 323 24 QUESTIONS BY MR. OVERHOLTZ:

 323 25 Q. And he says, "I will verify

 324 1 they are setting measurements up correctly

 324 2 and try to determine why their recent

 324 3 measurements have been .1 to .5 higher than

 324 4 the upper end of the spec for the Combat Arms

 324 5 plugs. Reject rates this week have been from

 324 6 70 to 90 percent, depending on the unit."

 324 7 Did I read that right?

 324 8 A. That's what the document says.

 324 9 Q. So you're operating under

 324 10 waivers by making the spec -- moving the

 324 11 goalpost for these plugs, and 90 percent are

 324 12 testing out of the original spec.

 324 13 MR. FIELDS: Objection to form.

 324 14 QUESTIONS BY MR. OVERHOLTZ:

 324 15 Q. Right?

 324 16 A. I don't know nor recall this

 324 17 document.

 324 18 Q. Okay. He says, "The most

 324 19 baffling problem they have described, one

 324 20 which I am really worried about, is that the

 324 21 output of the Z boxes tends to drift upward

 324 22 over a fairly short time period."

 324 23 Right?

 324 24 A. That's what the document says.

 324 25 Q. He says, "So anyway, that's my

 325 1 situation," in the next paragraph.

 325 2 He says, "When I return, if you

 325 3 reply positively, I will send Z Box Number 2

 325 4 to you for repair."

 325 5 Right?

 325 6 A. Yes.

 325 7 Q. He says, "Whatever happens,

 325 8 I'll probably have some interesting stories

 325 9 to tell you on my return."

 325 10 A. Yes.

 325 11 Q. Okay. So let's find out what

 325 12 happened when Kieper and Zielinski got back

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 140 of 345
Klun 115

 325 13 from Mexico.

 325 14 We can go to slide 115, Zach.

 325 15 The map slide.

 325 16 All right. So if you can look

 325 17 with me here, we see San Luis Potos�, Mexico,

 325 18 down at the bottom left of the screen, right?

 325 19 A. Yes.

 325 20 Q. And then Mr. Kieper flew all

 325 21 the way back to Indianapolis, right?

 325 22 MR. FIELDS: Objection. Form.

 325 23 THE WITNESS: According to the

 325 24 document, that's what it says he did.

 325 25 

 326 1 QUESTIONS BY MR. OVERHOLTZ:

 326 2 Q. All right. And even though he

 326 3 went down there believing that maybe they

 326 4 just had a problem in Mexico with their test

 326 5 machines, he made an interesting finding.

 326 6 Do you remember that?

 326 7 MR. FIELDS: Objection to form.

 326 8 THE WITNESS: I do not know nor

 326 9 recall.

 326 10 QUESTIONS BY MR. OVERHOLTZ:

 326 11 Q. You don't remember him telling

 326 12 either you or Berger or Dick Knauer that

 326 13 almost half of the plugs that he tested

 326 14 failed the testing in Mexico and also failed

 326 15 the testing in Indianapolis?

 326 16 MR. FIELDS: Objection. Form.

 326 17 THE WITNESS: I do not know nor

 326 18 recall.

 326 19 QUESTIONS BY MR. OVERHOLTZ:

 326 20 Q. I mean, if half the plugs are

 326 21 failing in the machines in Mexico and

 326 22 Indianapolis, that doesn't sound like a

 326 23 Mexican testing problem; that sounds like an

 326 24 earplug problem, doesn't it?

 326 25 MR. FIELDS: Objection to form.

 327 1 THE WITNESS: Again, I do not

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 141 of 345
Klun 116

 327 2 know nor recall this.

 327 3 QUESTIONS BY MR. OVERHOLTZ:

 327 4 Q. Being Dick Knauer and Kieper's

 327 5 boss, you didn't find out about any of this?

 327 6 A. I don't recall.

 327 7 Q. You're the one -- you're the

 327 8 one that e-mailed around the plan to get

 327 9 things fixed, right?

 327 10 A. I didn't e-mail the plan. I

 327 11 called a meeting.

 327 12 Q. And you attached -- you --

 327 13 A. What we wanted to have occur.

 327 14 You saw -- you have the document.

 327 15 (Klun Exhibit 44 marked for

 327 16 identification.)

 327 17 QUESTIONS BY MR. OVERHOLTZ:

 327 18 Q. Right.

 327 19 So let's see what Mr. Kieper

 327 20 wrote when he got back.

 327 21 And we'll mark -- this is the

 327 22 slide next slide, Zach, and it's RK-407, and

 327 23 this will be Exhibit 44.

 327 24 A. Am I copied on that?

 327 25 Q. Well, I'm about to tell you.

 328 1 A. Okay.

 328 2 Q. All right. So if we look at

 328 3 this e-mail --

 328 4 MR. FIELDS: Hang on one second

 328 5 here. It's downloading.

 328 6 MR. OVERHOLTZ: Sure.

 328 7 MR. FIELDS: Okay.

 328 8 QUESTIONS BY MR. OVERHOLTZ:

 328 9 Q. So you see Mr. Kieper e-mails

 328 10 on November 30 of 2004, and he copies Dick

 328 11 Knauer in your department, copies Bob

 328 12 Zielinski, copies Elliott Berger and a Selina

 328 13 Ramirez regarding the Combat Arms comparative

 328 14 measures.

 328 15 Do you see that?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 142 of 345
Klun 117

 328 16 A. Yes.

 328 17 Q. Did you know who Selina Ramirez

 328 18 was?

 328 19 A. No.

 328 20 Q. Okay. Okay. Mr. Zielinski

 328 21 said she was one of the quality people down

 328 22 at TJR in Mexico.

 328 23 So he says, "Greetings. I

 328 24 received 31 Combat Arms plugs today. 11 were

 328 25 measured on equipment number 3 and 20 on

 329 1 equipment number 4 at TJR."

 329 2 Do you see that?

 329 3 A. Yes.

 329 4 Q. So 20 plugs on number 4 and 11

 329 5 on number 3 in Mexico, right?

 329 6 A. Yes.

 329 7 Q. That's where they thought they

 329 8 were having the problems with the calibration

 329 9 of the machines, right?

 329 10 MR. FIELDS: Objection to form.

 329 11 THE WITNESS: That's where I go

 329 12 back to the document. That's why Ron

 329 13 went to Mexico.

 329 14 QUESTIONS BY MR. OVERHOLTZ:

 329 15 Q. Okay. He says, "I measured

 329 16 them on the E-A-RCAL equipment. The attached

 329 17 Excel document contains all measurements."

 329 18 Do you see?

 329 19 A. Yes.

 329 20 Q. It says, "As you can see from

 329 21 the spreadsheet, one plug from equipment

 329 22 number 3 and five plugs from equipment

 329 23 number 4 which measured out of spec, measured

 329 24 in spec on my equipment."

 329 25 Do you see that?

 330 1 A. Yes.

 330 2 Q. So that doesn't tell the whole

 330 3 story, right, about how many measured out of

 330 4 spec in Mexico and Indianapolis, right?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 143 of 345
Klun 118

 330 5 MR. FIELDS: Objection. Form.

 330 6 THE WITNESS: That, I don't

 330 7 know nor recall.

323:18 - 323:23 Klun

 323 18 Q. So that's less than a two-day

 323 19 trip to figure out all those problems down

 323 20 there, right?

 323 21 MR. FIELDS: Objection. Form.

 323 22 THE WITNESS: That's what the

 323 23 document says.

Re: [323:18-323:23]

Def Obj Argumentative; Vague (611, 

403); Foundation (602)

SUSTAINED

324:9 - 324:17 Klun

 324 9 Q. So you're operating under

 324 10 waivers by making the spec -- moving the

 324 11 goalpost for these plugs, and 90 percent are

 324 12 testing out of the original spec.

 324 13 MR. FIELDS: Objection to form.

 324 14 QUESTIONS BY MR. OVERHOLTZ:

 324 15 Q. Right?

 324 16 A. I don't know nor recall this

 324 17 document.

Re: [324:9-324:17]

Def Obj Foundation (602); 

Argumentative; Misstates (611, 403)

SUSTAINED

325:20 - 325:24 Klun

 325 20 Q. And then Mr. Kieper flew all

 325 21 the way back to Indianapolis, right?

 325 22 MR. FIELDS: Objection. Form.

 325 23 THE WITNESS: According to the

 325 24 document, that's what it says he did.

Re: [325:20-325:24]

Def Obj Foundation (602)

SUSTAINED

326:2 - 326:9 Klun

 326 2 Q. All right. And even though he

 326 3 went down there believing that maybe they

 326 4 just had a problem in Mexico with their test

 326 5 machines, he made an interesting finding.

 326 6 Do you remember that?

 326 7 MR. FIELDS: Objection to form.

 326 8 THE WITNESS: I do not know nor

 326 9 recall.

Re: [326:2-326:9]

Def Obj Vague (611, 403); Foundation 

(602)

SUSTAINED

326:11 - 326:18 Klun

 326 11 Q. You don't remember him telling

 326 12 either you or Berger or Dick Knauer that

 326 13 almost half of the plugs that he tested

Re: [326:11-326:18]

Def Obj Hearsay (801, 802); Vague 

(611, 403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 144 of 345
Klun 119

 326 14 failed the testing in Mexico and also failed

 326 15 the testing in Indianapolis?

 326 16 MR. FIELDS: Objection. Form.

 326 17 THE WITNESS: I do not know nor

 326 18 recall.

326:20 - 327:2 Klun

 326 20 Q. I mean, if half the plugs are

 326 21 failing in the machines in Mexico and

 326 22 Indianapolis, that doesn't sound like a

 326 23 Mexican testing problem; that sounds like an

 326 24 earplug problem, doesn't it?

 326 25 MR. FIELDS: Objection to form.

 327 1 THE WITNESS: Again, I do not

 327 2 know nor recall this.

Re: [326:20-327:2]

Def Obj Argumentative; Vague (611, 

403) Foundation (602); 702

OVERRULED

327:3 - 336:22 Klun

 327 3 QUESTIONS BY MR. OVERHOLTZ:

 327 4 Q. Being Dick Knauer and Kieper's

 327 5 boss, you didn't find out about any of this?

 327 6 A. I don't recall.

 327 7 Q. You're the one -- you're the

 327 8 one that e-mailed around the plan to get

 327 9 things fixed, right?

 327 10 A. I didn't e-mail the plan. I

 327 11 called a meeting.

 327 12 Q. And you attached -- you --

 327 13 A. What we wanted to have occur.

 327 14 You saw -- you have the document.

 327 15 (Klun Exhibit 44 marked for

 327 16 identification.)

 327 17 QUESTIONS BY MR. OVERHOLTZ:

 327 18 Q. Right.

 327 19 So let's see what Mr. Kieper

 327 20 wrote when he got back.

 327 21 And we'll mark -- this is the

 327 22 slide next slide, Zach, and it's RK-407, and

 327 23 this will be Exhibit 44.

 327 24 A. Am I copied on that?

 327 25 Q. Well, I'm about to tell you.

 328 1 A. Okay.

Re: [327:3-336:22]

Def Obj 3M MIL No. 26

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 145 of 345
Klun 120

 328 2 Q. All right. So if we look at

 328 3 this e-mail --

 328 4 MR. FIELDS: Hang on one second

 328 5 here. It's downloading.

 328 6 MR. OVERHOLTZ: Sure.

 328 7 MR. FIELDS: Okay.

 328 8 QUESTIONS BY MR. OVERHOLTZ:

 328 9 Q. So you see Mr. Kieper e-mails

 328 10 on November 30 of 2004, and he copies Dick

 328 11 Knauer in your department, copies Bob

 328 12 Zielinski, copies Elliott Berger and a Selina

 328 13 Ramirez regarding the Combat Arms comparative

 328 14 measures.

 328 15 Do you see that?

 328 16 A. Yes.

 328 17 Q. Did you know who Selina Ramirez

 328 18 was?

 328 19 A. No.

 328 20 Q. Okay. Okay. Mr. Zielinski

 328 21 said she was one of the quality people down

 328 22 at TJR in Mexico.

 328 23 So he says, "Greetings. I

 328 24 received 31 Combat Arms plugs today. 11 were

 328 25 measured on equipment number 3 and 20 on

 329 1 equipment number 4 at TJR."

 329 2 Do you see that?

 329 3 A. Yes.

 329 4 Q. So 20 plugs on number 4 and 11

 329 5 on number 3 in Mexico, right?

 329 6 A. Yes.

 329 7 Q. That's where they thought they

 329 8 were having the problems with the calibration

 329 9 of the machines, right?

 329 10 MR. FIELDS: Objection to form.

 329 11 THE WITNESS: That's where I go

 329 12 back to the document. That's why Ron

 329 13 went to Mexico.

 329 14 QUESTIONS BY MR. OVERHOLTZ:

 329 15 Q. Okay. He says, "I measured

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 146 of 345
Klun 121

 329 16 them on the E-A-RCAL equipment. The attached

 329 17 Excel document contains all measurements."

 329 18 Do you see?

 329 19 A. Yes.

 329 20 Q. It says, "As you can see from

 329 21 the spreadsheet, one plug from equipment

 329 22 number 3 and five plugs from equipment

 329 23 number 4 which measured out of spec, measured

 329 24 in spec on my equipment."

 329 25 Do you see that?

 330 1 A. Yes.

 330 2 Q. So that doesn't tell the whole

 330 3 story, right, about how many measured out of

 330 4 spec in Mexico and Indianapolis, right?

 330 5 MR. FIELDS: Objection. Form.

 330 6 THE WITNESS: That, I don't

 330 7 know nor recall.

 330 8 (Klun Exhibit 45 marked for

 330 9 identification.)

 330 10 QUESTIONS BY MR. OVERHOLTZ:

 330 11 Q. All right. Well, let's look at

 330 12 the attached spreadsheet, which we'll mark as

 330 13 Exhibit 45.

 330 14 It's the next slide, Zach, 117.

 330 15 This is RK-408, which is the

 330 16 spreadsheet that Mr. Kieper sent.

 330 17 Let me know when you have it on

 330 18 the screen.

 330 19 A. I see it.

 330 20 Q. Okay. And this says at the

 330 21 top, "TJR measurements made 16 to 21

 330 22 November '04, and E-A-RCAL measurements made

 330 23 30 November '04."

 330 24 Right?

 330 25 A. Yes, I see that.

 331 1 Q. And on the left it gives a good

 331 2 range, right?

 331 3 A. Yes.

 331 4 Q. Okay. And then it lists the

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 147 of 345
Klun 122

 331 5 equipment number for TJR, 3 and 4, right?

 331 6 There's 11 number 3s and 20 number 4s. I

 331 7 counted them. You can trust me.

 331 8 A. Yes.

 331 9 Q. Okay. And then if you look, he

 331 10 then provides two columns, which is the value

 331 11 at TJR and the value at E-A-RCAL in

 331 12 Indianapolis, right?

 331 13 A. Yeah, that's what the document

 331 14 shows.

 331 15 Q. And then he wrote, and this is

 331 16 his highlighting, "shaded equals out of

 331 17 spec."

 331 18 Do you see that?

 331 19 A. Yes.

 331 20 Q. So I've done the counting for

 331 21 us, and if we can go to the next slide, Zach,

 331 22 I've put it out to the right so we can follow

 331 23 along with each other.

 331 24 Do you see that?

 331 25 A. Yeah, I see what you have on

 332 1 your slide.

 332 2 Q. Okay. So for the ARC Box

 332 3 Number 3, 10 out of 11 were out of spec in

 332 4 Mexico, right?

 332 5 A. Yes.

 332 6 Q. And 9 out of 11 were out of

 332 7 spec in Indianapolis.

 332 8 MR. FIELDS: Objection to form.

 332 9 QUESTIONS BY MR. OVERHOLTZ:

 332 10 Q. That's what the -- if you count

 332 11 them, that's what it says for the number 3,

 332 12 right?

 332 13 A. That's what the document says.

 332 14 Q. And you agree that I counted

 332 15 them right, right? 9 out of 11 were out of

 332 16 spec in Indianapolis?

 332 17 A. I'll assume you counted them

 332 18 right.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 148 of 345
Klun 123

 332 19 Q. Okay. And then if we look down

 332 20 at the results for Box Number 4 at TJR, 11

 332 21 out of the 20 were out of spec in Mexico.

 332 22 Do you see that?

 332 23 A. Yeah. Yes.

 332 24 Q. And then 6 out of 20 were out

 332 25 of spec in Indianapolis, right?

 333 1 A. Yes.

 333 2 Q. So if we total those up, 21 of

 333 3 31 plugs that Kieper tested when he got back

 333 4 that had been out of spec in Mexico were

 333 5 reported in his spreadsheet, right?

 333 6 MR. FIELDS: Objection to form.

 333 7 THE WITNESS: This was what --

 333 8 this was what the document shows.

 333 9 QUESTIONS BY MR. OVERHOLTZ:

 333 10 Q. Right.

 333 11 Mr. Kieper reported in this

 333 12 spreadsheet that 21 out of 31 plugs had been

 333 13 out of spec in Mexico that were tested on the

 333 14 number 3 and number 4 machines, correct?

 333 15 A. Which is your doc -- is this

 333 16 all his document or your -- you put some

 333 17 document --

 333 18 Q. His spreadsheet is on the left,

 333 19 and my counting is on the right where it says

 333 20 "total results."

 333 21 A. Total results. The three on

 333 22 the right of the screen are your comments?

 333 23 Q. They are.

 333 24 And I'm asking you: Did I

 333 25 count it right, 21 out of 31 were out of spec

 334 1 in Mexico?

 334 2 A. I'll assume you've counted

 334 3 right.

 334 4 Q. Okay.

 334 5 A. This is not Kieper's document.

 334 6 That's your -- Kieper's document's to the

 334 7 left and you're to the right, correct?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 149 of 345
Klun 124

 334 8 Q. That's correct.

 334 9 A. Okay.

 334 10 Q. And I'm just trying to count

 334 11 how many were out of spec when Kieper did his

 334 12 analysis.

 334 13 Okay? You follow me?

 334 14 A. I follow you.

 334 15 Q. Okay. So then if we count them

 334 16 up on that column for the ones tested in

 334 17 Indianapolis, 15 out of 31 plugs that Kieper

 334 18 tested when he got back from Mexico were also

 334 19 out of spec at Indianapolis, right?

 334 20 MR. FIELDS: Objection to form.

 334 21 THE WITNESS: By what Kieper's

 334 22 document says.

 334 23 QUESTIONS BY MR. OVERHOLTZ:

 334 24 Q. Kieper's reporting in this

 334 25 spreadsheet, if you count the ones that are

 335 1 shaded, that 15 out of 31, 48 percent, are

 335 2 out of spec in Indianapolis.

 335 3 A. I assume you counted right

 335 4 then.

 335 5 Q. I mean, does that sound like

 335 6 that this was a testing problem with the

 335 7 machines in Mexico and those plugs you were

 335 8 selling by waiver were okay, or does this

 335 9 sound like that there was an earplug problem?

 335 10 MR. FIELDS: Objection to form.

 335 11 THE WITNESS: I'm not a subject

 335 12 matter expert, so I would not know or

 335 13 recall -- nor do I recall this

 335 14 document.

 335 15 QUESTIONS BY MR. OVERHOLTZ:

 335 16 Q. It doesn't take a rocket

 335 17 scientist to know that when half your plugs

 335 18 are failing all of the quality testing, that

 335 19 that's not a good thing, right?

 335 20 MR. FIELDS: Objection.

 335 21 Argumentative.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 150 of 345
Klun 125

 335 22 THE WITNESS: All the quality

 335 23 testing?

 335 24 QUESTIONS BY MR. OVERHOLTZ:

 335 25 Q. Well, this is the quality --

 336 1 this is the only quality testing they were

 336 2 doing down in Mexico, right?

 336 3 A. That, I do not know nor recall.

 336 4 Q. So when they tested these --

 336 5 when half -- almost half the plugs, when they

 336 6 test the yellow end on the ARC machine, are

 336 7 out of spec, whether you test them in Mexico

 336 8 or Indianapolis, that's not a good thing if

 336 9 you're selling them to the United States

 336 10 military, right?

 336 11 MR. FIELDS: Objection. Form.

 336 12 THE WITNESS: I do not know nor

 336 13 recall the document. Not being a

 336 14 subject matter expert --

 336 15 QUESTIONS BY MR. OVERHOLTZ:

 336 16 Q. All right. I've got one more

 336 17 document --

 336 18 A. -- to interpret the data, not

 336 19 being a subject matter expert to interpret

 336 20 the data, I don't know.

 336 21 (Klun Exhibit 46 marked for

 336 22 identification.)

329:7 - 329:13 Klun

 329 7 Q. That's where they thought they

 329 8 were having the problems with the calibration

 329 9 of the machines, right?

 329 10 MR. FIELDS: Objection to form.

 329 11 THE WITNESS: That's where I go

 329 12 back to the document. That's why Ron

 329 13 went to Mexico.

Re: [329:7-329:13]

Def Obj Hearsay (801, 802); Foundation 

(602); Vague (611, 403)

OVERRULED

330:2 - 330:7 Klun

 330 2 Q. So that doesn't tell the whole

 330 3 story, right, about how many measured out of

 330 4 spec in Mexico and Indianapolis, right?

 330 5 MR. FIELDS: Objection. Form.

Re: [330:2-330:7]

Def Obj Argumentative; Vague (611, 

403); Foundation (602)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 151 of 345
Klun 126

 330 6 THE WITNESS: That, I don't

 330 7 know nor recall.

330:11 - 336:20 Klun

 330 11 Q. All right. Well, let's look at

 330 12 the attached spreadsheet, which we'll mark as

 330 13 Exhibit 45.

 330 14 It's the next slide, Zach, 117.

 330 15 This is RK-408, which is the

 330 16 spreadsheet that Mr. Kieper sent.

 330 17 Let me know when you have it on

 330 18 the screen.

 330 19 A. I see it.

 330 20 Q. Okay. And this says at the

 330 21 top, "TJR measurements made 16 to 21

 330 22 November '04, and E-A-RCAL measurements made

 330 23 30 November '04."

 330 24 Right?

 330 25 A. Yes, I see that.

 331 1 Q. And on the left it gives a good

 331 2 range, right?

 331 3 A. Yes.

 331 4 Q. Okay. And then it lists the

 331 5 equipment number for TJR, 3 and 4, right?

 331 6 There's 11 number 3s and 20 number 4s. I

 331 7 counted them. You can trust me.

 331 8 A. Yes.

 331 9 Q. Okay. And then if you look, he

 331 10 then provides two columns, which is the value

 331 11 at TJR and the value at E-A-RCAL in

 331 12 Indianapolis, right?

 331 13 A. Yeah, that's what the document

 331 14 shows.

 331 15 Q. And then he wrote, and this is

 331 16 his highlighting, "shaded equals out of

 331 17 spec."

 331 18 Do you see that?

 331 19 A. Yes.

 331 20 Q. So I've done the counting for

 331 21 us, and if we can go to the next slide, Zach,

Re: [330:11-336:20]

Def Obj Foundation (602)

OVERRULED

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Klun 127

 331 22 I've put it out to the right so we can follow

 331 23 along with each other.

 331 24 Do you see that?

 331 25 A. Yeah, I see what you have on

 332 1 your slide.

 332 2 Q. Okay. So for the ARC Box

 332 3 Number 3, 10 out of 11 were out of spec in

 332 4 Mexico, right?

 332 5 A. Yes.

 332 6 Q. And 9 out of 11 were out of

 332 7 spec in Indianapolis.

 332 8 MR. FIELDS: Objection to form.

 332 9 QUESTIONS BY MR. OVERHOLTZ:

 332 10 Q. That's what the -- if you count

 332 11 them, that's what it says for the number 3,

 332 12 right?

 332 13 A. That's what the document says.

 332 14 Q. And you agree that I counted

 332 15 them right, right? 9 out of 11 were out of

 332 16 spec in Indianapolis?

 332 17 A. I'll assume you counted them

 332 18 right.

 332 19 Q. Okay. And then if we look down

 332 20 at the results for Box Number 4 at TJR, 11

 332 21 out of the 20 were out of spec in Mexico.

 332 22 Do you see that?

 332 23 A. Yeah. Yes.

 332 24 Q. And then 6 out of 20 were out

 332 25 of spec in Indianapolis, right?

 333 1 A. Yes.

 333 2 Q. So if we total those up, 21 of

 333 3 31 plugs that Kieper tested when he got back

 333 4 that had been out of spec in Mexico were

 333 5 reported in his spreadsheet, right?

 333 6 MR. FIELDS: Objection to form.

 333 7 THE WITNESS: This was what --

 333 8 this was what the document shows.

 333 9 QUESTIONS BY MR. OVERHOLTZ:

 333 10 Q. Right.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 153 of 345
Klun 128

 333 11 Mr. Kieper reported in this

 333 12 spreadsheet that 21 out of 31 plugs had been

 333 13 out of spec in Mexico that were tested on the

 333 14 number 3 and number 4 machines, correct?

 333 15 A. Which is your doc -- is this

 333 16 all his document or your -- you put some

 333 17 document --

 333 18 Q. His spreadsheet is on the left,

 333 19 and my counting is on the right where it says

 333 20 "total results."

 333 21 A. Total results. The three on

 333 22 the right of the screen are your comments?

 333 23 Q. They are.

 333 24 And I'm asking you: Did I

 333 25 count it right, 21 out of 31 were out of spec

 334 1 in Mexico?

 334 2 A. I'll assume you've counted

 334 3 right.

 334 4 Q. Okay.

 334 5 A. This is not Kieper's document.

 334 6 That's your -- Kieper's document's to the

 334 7 left and you're to the right, correct?

 334 8 Q. That's correct.

 334 9 A. Okay.

 334 10 Q. And I'm just trying to count

 334 11 how many were out of spec when Kieper did his

 334 12 analysis.

 334 13 Okay? You follow me?

 334 14 A. I follow you.

 334 15 Q. Okay. So then if we count them

 334 16 up on that column for the ones tested in

 334 17 Indianapolis, 15 out of 31 plugs that Kieper

 334 18 tested when he got back from Mexico were also

 334 19 out of spec at Indianapolis, right?

 334 20 MR. FIELDS: Objection to form.

 334 21 THE WITNESS: By what Kieper's

 334 22 document says.

 334 23 QUESTIONS BY MR. OVERHOLTZ:

 334 24 Q. Kieper's reporting in this

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 334 25 spreadsheet, if you count the ones that are

 335 1 shaded, that 15 out of 31, 48 percent, are

 335 2 out of spec in Indianapolis.

 335 3 A. I assume you counted right

 335 4 then.

 335 5 Q. I mean, does that sound like

 335 6 that this was a testing problem with the

 335 7 machines in Mexico and those plugs you were

 335 8 selling by waiver were okay, or does this

 335 9 sound like that there was an earplug problem?

 335 10 MR. FIELDS: Objection to form.

 335 11 THE WITNESS: I'm not a subject

 335 12 matter expert, so I would not know or

 335 13 recall -- nor do I recall this

 335 14 document.

 335 15 QUESTIONS BY MR. OVERHOLTZ:

 335 16 Q. It doesn't take a rocket

 335 17 scientist to know that when half your plugs

 335 18 are failing all of the quality testing, that

 335 19 that's not a good thing, right?

 335 20 MR. FIELDS: Objection.

 335 21 Argumentative.

 335 22 THE WITNESS: All the quality

 335 23 testing?

 335 24 QUESTIONS BY MR. OVERHOLTZ:

 335 25 Q. Well, this is the quality --

 336 1 this is the only quality testing they were

 336 2 doing down in Mexico, right?

 336 3 A. That, I do not know nor recall.

 336 4 Q. So when they tested these --

 336 5 when half -- almost half the plugs, when they

 336 6 test the yellow end on the ARC machine, are

 336 7 out of spec, whether you test them in Mexico

 336 8 or Indianapolis, that's not a good thing if

 336 9 you're selling them to the United States

 336 10 military, right?

 336 11 MR. FIELDS: Objection. Form.

 336 12 THE WITNESS: I do not know nor

 336 13 recall the document. Not being a

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 336 14 subject matter expert --

 336 15 QUESTIONS BY MR. OVERHOLTZ:

 336 16 Q. All right. I've got one more

 336 17 document --

 336 18 A. -- to interpret the data, not

 336 19 being a subject matter expert to interpret

 336 20 the data, I don't know.

333:2 - 333:8 Klun

 333 2 Q. So if we total those up, 21 of

 333 3 31 plugs that Kieper tested when he got back

 333 4 that had been out of spec in Mexico were

 333 5 reported in his spreadsheet, right?

 333 6 MR. FIELDS: Objection to form.

 333 7 THE WITNESS: This was what --

 333 8 this was what the document shows.

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334:15 - 334:22 Klun

 334 15 Q. Okay. So then if we count them

 334 16 up on that column for the ones tested in

 334 17 Indianapolis, 15 out of 31 plugs that Kieper

 334 18 tested when he got back from Mexico were also

 334 19 out of spec at Indianapolis, right?

 334 20 MR. FIELDS: Objection to form.

 334 21 THE WITNESS: By what Kieper's

 334 22 document says.

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335:5 - 335:14 Klun

 335 5 Q. I mean, does that sound like

 335 6 that this was a testing problem with the

 335 7 machines in Mexico and those plugs you were

 335 8 selling by waiver were okay, or does this

 335 9 sound like that there was an earplug problem?

 335 10 MR. FIELDS: Objection to form.

 335 11 THE WITNESS: I'm not a subject

 335 12 matter expert, so I would not know or

 335 13 recall -- nor do I recall this

 335 14 document.

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335:16 - 335:23 Klun

 335 16 Q. It doesn't take a rocket

 335 17 scientist to know that when half your plugs

 335 18 are failing all of the quality testing, that

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 335 19 that's not a good thing, right?

 335 20 MR. FIELDS: Objection.

 335 21 Argumentative.

 335 22 THE WITNESS: All the quality

 335 23 testing?

336:4 - 336:14 Klun

 336 4 Q. So when they tested these --

 336 5 when half -- almost half the plugs, when they

 336 6 test the yellow end on the ARC machine, are

 336 7 out of spec, whether you test them in Mexico

 336 8 or Indianapolis, that's not a good thing if

 336 9 you're selling them to the United States

 336 10 military, right?

 336 11 MR. FIELDS: Objection. Form.

 336 12 THE WITNESS: I do not know nor

 336 13 recall the document. Not being a

 336 14 subject matter expert --

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337:2 - 337:5 Klun

 337 2 Do you know if you ever got

 337 3 this problem fixed?

 337 4 MR. FIELDS: Objection to form.

 337 5 THE WITNESS: I do not recall.

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337:2 - 337:5 Klun

 337 2 Do you know if you ever got

 337 3 this problem fixed?

 337 4 MR. FIELDS: Objection to form.

 337 5 THE WITNESS: I do not recall.

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337:6 - 337:9 Klun

 337 6 QUESTIONS BY MR. OVERHOLTZ:

 337 7 Q. All right. Let's look at

 337 8 slide 138, Zach. This is -- we'll mark this

 337 9 as Exhibit 46, which is RZ-5051.

337:14 - 337:18 Klun

 337 14 QUESTIONS BY MR. OVERHOLTZ:

 337 15 Q. And I want to direct your

 337 16 attention to the e-mail that's about

 337 17 three-quarters down the page of the e-mail

 337 18 string. It's --

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 340 7 QUESTIONS BY MR. OVERHOLTZ:

 340 8 Q. Do you think the sergeants that

 340 9 were training soldiers and giving them these

 340 10 earplugs to use on the firing range would

 340 11 have liked to have known that the plugs that

 340 12 the military had been buying from Aearo for

 340 13 years and years, that Aearo had no way of

 340 14 confirming the quality control testing on

 340 15 those earplugs?

 340 16 MR. FIELDS: Objection to form.

 340 17 THE WITNESS: I don't know nor

 340 18 recall. Not the subject matter expert

 340 19 on these plugs.

 340 20 QUESTIONS BY MR. OVERHOLTZ:

 340 21 Q. You think maybe someone in

 340 22 marketing over at Aearo or 3M would have been

 340 23 the one to make that call whether the

 340 24 military deserved to know?

 340 25 MR. FIELDS: Objection. Form.

 341 1 THE WITNESS: You're asking my

 341 2 opinion?

 341 3 QUESTIONS BY MR. OVERHOLTZ:

 341 4 Q. Sure.

 341 5 A. I do not have an opinion on

 341 6 this issue without knowing or recalling the

 341 7 information.

 341 8 Q. You think anyone at Aearo or 3M

 341 9 would have an opinion on whether or not the

 341 10 military deserves to know if the quality

 341 11 control testing that's supposed to be done on

 341 12 the yellow end of the plug to prove that the

 341 13 filter would work and protect a soldier, that

 341 14 the quality machines were never calibrated

 341 15 right and always broken?

 341 16 MR. FIELDS: Objection to form.

 341 17 THE WITNESS: I don't know nor

 341 18 recall anything that resembled your

 341 19 statement.

 341 20 QUESTIONS BY MR. OVERHOLTZ:

Def Obj 3M MIL No. 26

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 341 21 Q. If there was a problem with the

 341 22 ability to verify the quality of the assembly

 341 23 of those plugs that would affect whether or

 341 24 not that filter would provide sound

 341 25 attenuation for soldiers, do you believe that

 342 1 your company, Aearo or 3M, had a duty to tell

 342 2 the United States military, we can't verify

 342 3 the quality of those filters in those plugs?

 342 4 A. Not being a subject matter

 342 5 expert nor knowing the significance of the

 342 6 data, I can't answer that question.

 342 7 Q. So instead, you just sell them

 342 8 as-is, right?

 342 9 MR. FIELDS: Objection to form.

 342 10 THE WITNESS: Subject matter

 342 11 experts will know whether or not we've

 342 12 got a good product.

 342 13 QUESTIONS BY MR. OVERHOLTZ:

 342 14 Q. And if they knew it wasn't able

 342 15 to be confirmed because the calibration of

 342 16 the machines couldn't be verified, would you

 342 17 have expected them to raise their hand and

 342 18 say, "We have a problem"?

 342 19 MR. FIELDS: Objection. Form.

 342 20 THE WITNESS: I don't recall.

 342 21 If there was a problem, they would

 342 22 have contacted me.

 342 23 QUESTIONS BY MR. OVERHOLTZ:

 342 24 Q. That's what they're supposed to

 342 25 do, right?

 343 1 A. If there was a problem.

 343 2 Q. That memo that you sent

 343 3 regarding the TJR quality issues before

 343 4 Zielinski and Kieper went down to Mexico,

 343 5 that memo, did you circulate that outside of

 343 6 Aearo to the US military so they would know

 343 7 what was going on?

 343 8 A. I don't know or recall.

 343 9 Q. So it's kind of just like the

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 343 10 flange report, right? You have no way --

 343 11 A. What -- what flange? Excuse

 343 12 me, I missed your -- what did you say? What

 343 13 kind of report?

 343 14 Q. I said it's just like the

 343 15 flange report, the one that Kieper wrote

 343 16 about having to stop the 015 test after eight

 343 17 subjects because the plug was pulling out of

 343 18 people's ears.

 343 19 MR. FIELDS: Objection. Form.

 343 20 THE WITNESS: I'm not a subject

 343 21 matter expert nor recall the

 343 22 documents.

 343 23 QUESTIONS BY MR. OVERHOLTZ:

 343 24 Q. And so just like Aearo can't

 343 25 show that they ever shared that information

 344 1 from the flange report to the US military,

 344 2 you, as you sit here today, can't tell me or

 344 3 show me in any way that you ever shared the

 344 4 information in that TJR quality memo with

 344 5 anyone in the United States military; is that

 344 6 right?

 344 7 MR. FIELDS: Objection to form.

 344 8 THE WITNESS: I don't know or

 344 9 recall.

 344 10 QUESTIONS BY MR. OVERHOLTZ:

 344 11 Q. And so you have no way of

 344 12 showing me any documentary evidence or any

 344 13 evidence that the information regarding the

 344 14 TJR quality issues with the ARC calibration

 344 15 machines was ever shared with the US

 344 16 military, right?

 344 17 A. I don't know or recall.

340:8 - 340:19 Klun

 340 8 Q. Do you think the sergeants that

 340 9 were training soldiers and giving them these

 340 10 earplugs to use on the firing range would

 340 11 have liked to have known that the plugs that

 340 12 the military had been buying from Aearo for

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 340 13 years and years, that Aearo had no way of

 340 14 confirming the quality control testing on

 340 15 those earplugs?

 340 16 MR. FIELDS: Objection to form.

 340 17 THE WITNESS: I don't know nor

 340 18 recall. Not the subject matter expert

 340 19 on these plugs.

340:21 - 341:2 Klun

 340 21 Q. You think maybe someone in

 340 22 marketing over at Aearo or 3M would have been

 340 23 the one to make that call whether the

 340 24 military deserved to know?

 340 25 MR. FIELDS: Objection. Form.

 341 1 THE WITNESS: You're asking my

 341 2 opinion?

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SUSTAINED

341:8 - 341:19 Klun

 341 8 Q. You think anyone at Aearo or 3M

 341 9 would have an opinion on whether or not the

 341 10 military deserves to know if the quality

 341 11 control testing that's supposed to be done on

 341 12 the yellow end of the plug to prove that the

 341 13 filter would work and protect a soldier, that

 341 14 the quality machines were never calibrated

 341 15 right and always broken?

 341 16 MR. FIELDS: Objection to form.

 341 17 THE WITNESS: I don't know nor

 341 18 recall anything that resembled your

 341 19 statement.

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342:7 - 342:12 Klun

 342 7 Q. So instead, you just sell them

 342 8 as-is, right?

 342 9 MR. FIELDS: Objection to form.

 342 10 THE WITNESS: Subject matter

 342 11 experts will know whether or not we've

 342 12 got a good product.

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342:14 - 342:22 Klun

 342 14 Q. And if they knew it wasn't able

 342 15 to be confirmed because the calibration of

 342 16 the machines couldn't be verified, would you

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 342 17 have expected them to raise their hand and

 342 18 say, "We have a problem"?

 342 19 MR. FIELDS: Objection. Form.

 342 20 THE WITNESS: I don't recall.

 342 21 If there was a problem, they would

 342 22 have contacted me.

343:14 - 343:22 Klun

 343 14 Q. I said it's just like the

 343 15 flange report, the one that Kieper wrote

 343 16 about having to stop the 015 test after eight

 343 17 subjects because the plug was pulling out of

 343 18 people's ears.

 343 19 MR. FIELDS: Objection. Form.

 343 20 THE WITNESS: I'm not a subject

 343 21 matter expert nor recall the

 343 22 documents.

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343:24 - 344:9 Klun

 343 24 Q. And so just like Aearo can't

 343 25 show that they ever shared that information

 344 1 from the flange report to the US military,

 344 2 you, as you sit here today, can't tell me or

 344 3 show me in any way that you ever shared the

 344 4 information in that TJR quality memo with

 344 5 anyone in the United States military; is that

 344 6 right?

 344 7 MR. FIELDS: Objection to form.

 344 8 THE WITNESS: I don't know or

 344 9 recall.

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Mosby, Taurin

Colors

Plaintiff Affirmatives

Defense Objections

Defense Counters

Plaintiff Objections

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Mosby, Taurin 2

Designation Objection Notes

12:20 - 12:22 Mosby, Taurin

 12 20 Q. Good morning, sir. Can you tell

 12 21 me your name?

 12 22 A. Taurin Mosby.

22:19 - 22:23 Mosby, Taurin

 22 19 Q. Okay. And have you -- have you

 22 20 made a claim yourself related to the earplugs?

 22 21 A. No, sir.

 22 22 Q. Do you have any plans to do so?

 22 23 A. No, sir.

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OVERRULED

23:9 - 23:20 Mosby, Taurin

 23 9 Q. Okay. And we'll get into a

 23 10 little bit of this in a second, but do you --

 23 11 you have some medical training, I understand;

 23 12 is that correct?

 23 13 A. Yes, sir.

 23 14 Q. Okay. Does your medical training

 23 15 include reading and understanding audiograms?

 23 16 A. To an extent, yes, it does, sir.

 23 17 I've -- I've had these in -- I've conducted

 23 18 these in the past. It was a long time ago. I

 23 19 am not an expert, but I can understand what I'm

 23 20 looking at.

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Def Obj Relevance (401, 402)

SUSTAINED

31:9 - 31:20 Mosby, Taurin

 31 9 Q. All right. And what branch were

 31 10 you in?

 31 11 A. Army.

 31 12 Q. Always Army?

 31 13 A. Always Army.

 31 14 Q. And were you continuously in the

 31 15 Army from 1993 until you retired?

 31 16 A. Yes. Twenty-five years.

 31 17 Q. Congratulations. And what was

 31 18 your retirement date, or at least year and

 31 19 month, maybe?

 31 20 A. August of 2018.

33:14 - 33:20 Mosby, Taurin

 33 14 Q. I did. What was your rank when

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Mosby, Taurin 3

 33 15 you entered the military?

 33 16 A. When I entered the military? I

 33 17 was E-1; Private, E-I.

 33 18 Q. What was your rank when you

 33 19 retired?

 33 20 A. Sergeant First Class, E-7.

33:21 - 33:22 Mosby, Taurin

 33 21 Q. What was your job in the

 33 22 military?

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33:23 - 34:24 Mosby, Taurin

 33 23 I'm sure they may have changed

 33 24 over time, but generally speaking, what was

 33 25 your job or jobs in the military?

 34 1 A. I had one job. I was a combat

 34 2 medic the entire time. 68 Whiskey, combat

 34 3 medical specialist.

 34 4 Q. What does a combat medical

 34 5 specialist do?

 34 6 A. Prehospital care, trauma,

 34 7 clinical work, just about anything to do with

 34 8 the medical field.

 34 9 Q. Okay. And what sort of training

 34 10 do you have to undertake to become a combat

 34 11 medical specialist?

 34 12 A. One, you have to be a licensed

 34 13 EMT, emergency medical technician; you have to

 34 14 graduate your AIT, your individual training

 34 15 once you come in the military; and as you

 34 16 progress along the course of your rank-wise and

 34 17 career, you take more courses, as far as like,

 34 18 noncommissioned officer courses, like the

 34 19 Primary Leadership Development Course, the --

 34 20 they call it something different now, the

 34 21 Advanced Leaders Course. They've changed over

 34 22 the years, but you have to take a couple of

 34 23 leadership courses over the time you're in the

 34 24 military, to sustain your skills.

42:13 - 42:15 Mosby, Taurin

 42 13 Q. Were you ever -- Well, did you

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Mosby, Taurin 4

 42 14 wear hearing protection when you were deployed?

 42 15 A. Yes.

42:16 - 42:22 Mosby, Taurin

 42 16 Q. Do you recall what type or types

 42 17 of hearing protection you wore?

 42 18 A. It was various types. We had

 42 19 over-the-ear hearing protection, we had -- It

 42 20 was -- It was a lot of types of hearing. I

 42 21 can't really state exactly which brands or

 42 22 models anywhere. We wore a lot of stuff.

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42:23 - 43:1 Mosby, Taurin

 42 23 Q. Do you know, off the top of your

 42 24 head, if you ever wore the Combat Arms Earplug

 42 25 that we're talking about today with the 3M --

 43 1 A. I did.

43:3 - 43:17 Mosby, Taurin

 43 3 And do you recall what sort of

 43 4 training you had about how to wear that

 43 5 earplug?

 43 6 A. Actually, no. I will say that --

 43 7 that we -- It was just one of those things,

 43 8 like you go to the -- When you get your

 43 9 audiology exam done, you have a bunch of

 43 10 hearing aids -- not hearing aids, sorry --

 43 11 hearing earplugs there, and they hand them out.

 43 12 At some point saying -- At some points in my

 43 13 military career, it was usual for us to wear

 43 14 our little hearing plug attachments on our

 43 15 uniform, and they have various hearing plugs in

 43 16 there. So it was really, they just gave them

 43 17 out to us, and we just used them.

43:18 - 44:1 Mosby, Taurin

 43 18 Q. Okay. And as far as when you

 43 19 wore the Combat Arms Earplug, do you know when

 43 20 that was, compared to when you wore other

 43 21 hearing protection?

 43 22 A. No, sir. It was sporadic. Me,

 43 23 personally, I preferred the over-the-ear

 43 24 hearing protection, because I didn't like stuff

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 43 25 in my ears, so I usually -- I wore a lot of

 44 1 over-the-ear hearing protection.

44:2 - 44:12 Mosby, Taurin

 44 2 Q. All right. As part of your

 44 3 medical training, were you ever trained how to

 44 4 fit an earplug into a soldier's ear?

 44 5 A. Yes. Briefly. But that would be

 44 6 more reserved for like the audiology techs,

 44 7 which I am not. But I was given brief

 44 8 instructions, yes, on how to fit earplugs.

 44 9 Q. And were you specifically given

 44 10 any training on how to fit the Combat Arms

 44 11 Earplugs into anyone's ear?

 44 12 A. No, sir.

50:23 - 50:25 Mosby, Taurin

 50 23 Q. I'd asked you a second ago about

 50 24 the Combat Arms Earplugs. Can you, off the top

 50 25 of your head, describe what those look like?

50:23 - 51:14 Mosby, Taurin

 50 23 Q. I'd asked you a second ago about

 50 24 the Combat Arms Earplugs. Can you, off the top

 50 25 of your head, describe what those look like?

 51 1 A. Yes, they are -- Combat Arms

 51 2 Earplugs, they're the ones with the yellow end

 51 3 and the green end; and the yellow end has a

 51 4 little hole in it.

 51 5 Q. And do you understand that the

 51 6 purpose between -- the difference between the

 51 7 yellow end and the green end, what it was

 51 8 assigned for?

 51 9 A. The yellow end is for -- I would

 51 10 ascertain with my training, because it has a

 51 11 little hole in it, so it will cut off certain

 51 12 ranges of the noise; but if you had the green

 51 13 end out, that was for combat and it cut off a

 51 14 lot more of the noise.

51:15 - 52:3 Mosby, Taurin

 51 15 Does that make sense?

 51 16 Q. Yes.

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 51 17 A. All right.

 51 18 Q. Where did you obtain that

 51 19 understanding as to the difference between the

 51 20 yellow and the green end?

 51 21 A. I would just -- General -- Just

 51 22 general knowledge in the military.

 51 23 Q. All right.

 51 24 A. Well, I -- I can't -- I don't

 51 25 want to say that. It's general -- It's

 52 1 knowledge that most NCOs would be familiar

 52 2 with. I'm not going to say that everybody in

 52 3 the military would automatically know that.

55:16 - 56:6 Mosby, Taurin

 55 16 Q. Okay. We talked about the Combat

 55 17 Arms Earplugs Version 2 before the break. Is

 55 18 this the Version 2 you remember that we

 55 19 discussed earlier?

 55 20 A. Yes.

 55 21 Q. With the different ends meaning

 55 22 different things as you put them into your ear?

 55 23 A. Yes, sir. Yes.

 55 24 Q. Okay. And were those used, by

 55 25 some soldiers at least, on -- at Schofield

 56 1 Barracks while you were there between 2013 and

 56 2 2017?

 56 3 A. Yes.

 56 4 Q. Okay. And did you use those

 56 5 yourself during that time period?

 56 6 A. Yes, I'm sure I did.

56:7 - 56:10 Mosby, Taurin

 56 7 Q. Do you have an estimate as to the

 56 8 percentage of time you would have used those,

 56 9 versus other hearing protection devices while

 56 10 you were on Schofield Barracks?

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56:12 - 56:12 Mosby, Taurin

 56 12 A. No.

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57:22 - 57:24 Mosby, Taurin

 57 22 Q. All right. Got it. So what I

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Mosby, Taurin 7

 57 23 want to do, I'm going to have you scroll down

 57 24 to the second page of Exhibit Number 2.

58:1 - 58:13 Mosby, Taurin

 58 1 Q. And that's another series of

 58 2 hearing protection devices. Do you recognize

 58 3 those hearing protection devices?

 58 4 A. Actually, no, I do not.

 58 5 Q. Okay. And let me go to the third

 58 6 page. Do you -- Have you ever seen that

 58 7 before?

 58 8 A. I have seen these, yes.

 58 9 Q. Okay. Do you know what this is?

 58 10 A. No, I don't know what it is by

 58 11 name. No, I don't, sir. But I have --

 58 12 Actually, I might have -- I don't know if I've

 58 13 used them or not, but I have seen them before.

58:14 - 58:15 Mosby, Taurin

 58 14 I don't know what they're called

 58 15 specifically, though.

58:16 - 59:2 Mosby, Taurin

 58 16 Q. And do you know if any soldiers

 58 17 under your supervision at Schofield Barracks

 58 18 would have worn this particular type of hearing

 58 19 protection?

 58 20 A. No. Not under my -- Not -- No.

 58 21 No. Not while I was there, no.

 58 22 Q. All right. Then if you go to the

 58 23 final page of Exhibit Number 2, do you

 58 24 recognize that?

 58 25 A. No, I do not. Those look like

 59 1 some I've never worn. I've never seen those

 59 2 before.

59:11 - 59:14 Mosby, Taurin

 59 11 Q. What I want to do is mark as

 59 12 Exhibit Number 3 another document. This is

 59 13 going to be called triple flange in your email,

 59 14 I think.

59:25 - 60:16 Mosby, Taurin

 59 25 Q. Okay. Do you recognize any of

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 169 of 345
Mosby, Taurin 8

 60 1 those three hearing protection devices?

 60 2 A. Yes. These would be the ones

 60 3 that were most common during my time at -- when

 60 4 I was stationed at Schofield Barracks. These

 60 5 are the most common ones, when you got your

 60 6 audiogram done -- I think -- I'm not going to

 60 7 think. I know that once you get an audiogram

 60 8 done, they usually, if they have them, they'll

 60 9 issue you some type of earplugs. It was

 60 10 usually these ones.

 60 11 Q. Okay. And that's the one that

 60 12 you have a blue and a green and a red on the

 60 13 screen, do you know if there's any difference

 60 14 between that other than color?

 60 15 A. Yes. It's a small, medium,

 60 16 large.

62:2 - 62:5 Mosby, Taurin

 62 2 Q. Okay. But somebody at the health

 62 3 clinic would be the one to hand out these

 62 4 earplugs?

 62 5 A. Yes.

63:3 - 63:9 Mosby, Taurin

 63 3 Q. I'm going to now try to

 63 4 introduce. This will be Exhibit Number 4. And

 63 5 it's going to be called quad flange in the

 63 6 name. Do you see that?

 63 7 A. Give me one second.

 63 8 Q. It's a blue -- Two-page document?

 63 9 A. I see it.

63:15 - 64:1 Mosby, Taurin

 63 15 Q. Mr. Mosby, do you recognize the

 63 16 device that's been marked as Exhibit Number 4,

 63 17 or the photograph Number 4?

 63 18 A. No. I was never really familiar

 63 19 with the quad flange, no.

 63 20 Q. All right. Then if you go to the

 63 21 second page of Exhibit Number 4, it's another

 63 22 picture of a quad flange, different color. Do

 63 23 you recognize the second page of Exhibit Number

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 170 of 345
Mosby, Taurin 9

 63 24 4?

 63 25 A. No. I have not seen it before.

 64 1 Q. And do you know whether the quad

64:1 - 64:3 Mosby, Taurin

 64 1 Q. And do you know whether the quad

 64 2 flange was ever used by soldiers at Schofield

 64 3 Barracks while you were there?

Re: [64:1-64:3]

Def Obj Foundation (602); Vague; 

Leading (611, 403)

SUSTAINED

64:7 - 64:7 Mosby, Taurin

 64 7 A. Answer? Oh, no, I don't know.

Re: [64:7-64:7]

Def Obj Foundation (602)

SUSTAINED

65:1 - 65:9 Mosby, Taurin

 65 1 Q. All right. Let's basically turn

 65 2 to Mr. Keefer. I asked earlier if you know who

 65 3 Lewis Keefer is. How do you know Lewis Keefer?

 65 4 A. Okay. I know him, he was in my

 65 5 platoon. As I arrived at that platoon, he was

 65 6 -- How can I say this? He was in the platoon.

 65 7 I did not see him that much, but he was there,

 65 8 if that makes any sense to you guys. He was in

 65 9 the platoon, and I did not see him much.

66:13 - 66:16 Mosby, Taurin

 66 13 Q. And how long were you the platoon

 66 14 sergeant of the 1/21 Infantry Battalion?

 66 15 A. I was there from 2014 for --

 66 16 About three years, 2014 to 2017.

67:1 - 67:4 Mosby, Taurin

 67 1 Let me put it this way: Did you and Mr. Keefer

 67 2 arrive at the same time at that platoon or he

 67 3 was there first?

 67 4 A. He was there first.

67:15 - 67:20 Mosby, Taurin

 67 15 Q. And how long after you arrived at

 67 16 the platoon did Mr. Keefer leave that 1/21

 67 17 Infantry Battalion?

 67 18 A. I would say less than -- max two

 67 19 months. Max of two months. After I got there,

 67 20 two months later he was gone.

67:21 - 68:5 Mosby, Taurin

 67 21 And, really, as far as my memory

 67 22 -- as far as I recollect, he was not a integral

Re: [67:21-68:5]

Pltf Obj Improper Clarification Direct 

â Violates PTO # 64, 402, 403, 

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 171 of 345
Mosby, Taurin 10

 67 23 part of the platoon at all. I really didn't

 67 24 have a lot of interaction with him. So that

 67 25 timeline could be off a little bit, but that's

 68 1 as far as I can remember, yes.

 68 2 Q. Okay. And when he left the

 68 3 platoon, do you know where he went?

 68 4 A. As far as I was understood, he

 68 5 transitioned out of the military.

Strike as nonresponsive, MIL Article 

15, 

68:6 - 68:11 Mosby, Taurin

 68 6 Q. Okay. Do you think you would

 68 7 have been his final sergeant? In other words,

 68 8 were you basically in charge of him maybe the

 68 9 last two months he was in the military, to your

 68 10 recollection at least?

 68 11 A. To my recollection, yes.

87:11 - 88:23 Mosby, Taurin

 87 11 Q. How often would soldiers in your

 87 12 platoon go through weapons training during the

 87 13 -- this period of time you were Mr. Keefer's

 87 14 supervisor?

 87 15 A. All right. So a general soldier

 87 16 in the military goes to the range to qualify on

 87 17 his individual weapon at least twice a year.

 87 18 But medics in our platoon, we had to provide

 87 19 coverage at the ranges, medical coverage, so we

 87 20 would send medics out to machine gun ranges,

 87 21 whatever range they have in our battalion,

 87 22 because the medic has to -- they have to have a

 87 23 medic in case somebody got hurt, of course. So

 87 24 the medics will be at various ranges a lot,

 87 25 actually.

 88 1 Q. Okay. Is this something that

 88 2 would occur on a weekly basis?

 88 3 A. Yeah. Somebody is always at the

 88 4 range. I wouldn't say weekly, but it was -- it

 88 5 was a lot. Somebody is usually covering a

 88 6 range somewhere.

 88 7 Q. And if you're covering the range,

 88 8 are you there for the entire day, or do you go

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 172 of 345
Mosby, Taurin 11

 88 9 out for an hour and somebody else relieves you?

 88 10 How does that work from a time standpoint?

 88 11 A. From a time standpoint, if --

 88 12 Yes, sometimes you could be there the entire

 88 13 time. Sometimes if we could -- If we could

 88 14 allocate another individual to -- so we could

 88 15 break up the time, of course we would; we don't

 88 16 want to keep anybody out there all day if we

 88 17 don't have to. On average, yes, if you were

 88 18 covering the range, you were there the whole

 88 19 time.

 88 20 Q. And -- All right. What about

 88 21 hearing protection, would that be required when

 88 22 you were at the range?

 88 23 A. Yes. Yes.

88:25 - 89:12 Mosby, Taurin

 88 25 was used -- I'm sorry. What type of hearing

 89 1 protection was used on the range?

 89 2 A. It would be -- From my

 89 3 experience, I saw a lot of the triple-flanged

 89 4 ones a lot. The combat hearing protection, I

 89 5 didn't really see those a lot. Those were --

 89 6 You saw those a lot in combat, in Iraq, they

 89 7 were pretty much everywhere.

 89 8 But as far as at training, when I

 89 9 was there, we just had the triple-flanged ones.

 89 10 Q. And that was the triple flange --

 89 11 the green, the blue, and the red that were

 89 12 Exhibit 3?

Re: [88:25-89:12]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

89:14 - 89:14 Mosby, Taurin

 89 14 A. Yes, sir.

Re: [89:14-89:14]

Pltf Obj Improper Clarification Direct -

Violates PTO # 64

SUSTAINED

89:15 - 90:7 Mosby, Taurin

 89 15 Q. When you were at Schofield

 89 16 Barracks, again, during the same 2014 time

 89 17 frame we're talking about, were there -- was

 89 18 there significant exposure to helicopters?

 89 19 A. Yes.

 89 20 Q. Was that a constant or daily

Re: [89:15-90:7]

Def Obj Relevance (401, 402)

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 173 of 345
Mosby, Taurin 12

 89 21 occurrence?

 89 22 A. Not daily. But most training

 89 23 that we dealt with, there was a helicopter

 89 24 somewhere.

 89 25 Q. All right. Did you have to ride

 90 1 in helicopters in your position?

 90 2 A. Yes. Of course.

 90 3 Q. Okay. When you were around

 90 4 helicopters -- When your soldiers were around

 90 5 helicopters, were they required to wear hearing

 90 6 protection devices?

 90 7 A. Yes.

90:8 - 90:10 Mosby, Taurin

 90 8 Q. Okay. And was there a specific

 90 9 type they were required to wear?

 90 10 A. No. Not specific type.

Re: [90:8-90:10]

Pltf Obj No objection

90:11 - 90:16 Mosby, Taurin

 90 11 Q. All right. I've asked about sort

 90 12 of your vehicles, your Stryker, your Humvees,

 90 13 your cargo; I've asked about helicopters; and

 90 14 we talked a little bit about being at the

 90 15 range, either to qualify yourself or as the

 90 16 medic to sort of be on duty there.

Re: [90:11-90:16]

Def Obj Relevance (401, 402); 

Foundation (602)

OVERRULED

90:17 - 91:2 Mosby, Taurin

 90 17 What other types of noise

 90 18 exposures would Mr. Keefer have encountered at

 90 19 Schofield Barracks during the time that you

 90 20 were a supervisor?

 90 21 A. That's about -- Well, the

 90 22 instances you've already outlined, those are

 90 23 about the gist of it. I mean, of course it's

 90 24 the military, it could be anything. But from

 90 25 what I understand, ranges, vehicles,

 91 1 helicopters, aircraft, that type of stuff, is

 91 2 the type of noise exposures you would have.

92:22 - 92:24 Mosby, Taurin

 92 22 Q. Was it up to the individual

 92 23 soldier to determine which type of hearing

 92 24 device, hearing protection device to use?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 174 of 345
Mosby, Taurin 13

93:1 - 93:11 Mosby, Taurin

 93 1 A. Yes. There wasn't a -- To my

 93 2 knowledge, there was not no -- there weren't

 93 3 any, this is the one, the set earplug that

 93 4 you're going to use. Like I indicated before,

 93 5 at the audiology clinic, when you got your

 93 6 hearing test done, they usually issued you one

 93 7 of those triple-flanged ones, and those are the

 93 8 ones you had. Sometimes you went to the

 93 9 audiology clinic, and they would have other

 93 10 brands, but usually it was the triple-flanged

 93 11 ones. But it wasn't a set one.

93:12 - 94:4 Mosby, Taurin

 93 12 Q. All right. Are you familiar with

 93 13 the concept of double hearing protection --

 93 14 A. Yes.

 93 15 Q. -- like using more than one?

 93 16 A. Yes.

 93 17 Q. Did you ever see soldiers using

 93 18 double hearing protection at Schofield

 93 19 Barracks?

 93 20 A. Did I see them? That would be

 93 21 the -- Kind of an oxymoron, because if you

 93 22 can't see it if you have headphones over your

 93 23 hearing protection. No, I didn't see it. I

 93 24 personally did sometimes. So I would wear

 93 25 over-the-ear hearing protection and the

 94 1 earplugs -- and some form of earplug.

 94 2 Q. And do you know how common that

 94 3 was with the soldiers under your supervision,

 94 4 to do that?

Re: [93:12-94:4]

Pltf Obj Clarification Direct â

Violates PTO # 64, 602, 402, Vague, 

Improper 

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

94:6 - 94:13 Mosby, Taurin

 94 6 A. I don't think -- I don't think it

 94 7 was very common. To my knowledge, I was the

 94 8 only one that was doing it. Because, of

 94 9 course, I had -- I was in the Army -- I was in

 94 10 the military for over twenty years, and I do

 94 11 have hearing loss and -- But at latter --

Re: [94:6-94:13]

Pltf Obj Clarification Direct â

Violates PTO # 64, 602, 402, Vague, 

Improper 

COUNTER DESIGNATION 

WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 175 of 345
Mosby, Taurin 14

 94 12 latter points in my career, I started to try to

 94 13 defend against hearing loss.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 176 of 345
Revised 3/3/2021 

Toyoma 2020-11-24

NOTE: Defendants have objected to affirmative designations included 

in this report as untimely under PTO 66.

Colors

Plaintiff Affirmatives

Defense Objections 

Defense Counters

Plaintiff Objections 

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 177 of 345
Revised Toyoma 2020-11-24 2

Designation Objection Notes

13:7 - 13:10 Revised Toyoma 2020-11-24

 13 7 Q. Will you please state your name 

 13 8 and address for the Record. 

 13 9 A. Andy Toyama, 1392 Kaweloka 

 13 10 Street, Pearl City, Hawaii 96782.

27:19 - 28:10 Revised Toyoma 2020-11-24

 27 19 Q. Do you work in the Hearing 

 27 20 Conservation Clinic at Schofield Barracks? 

 27 21 A. I do not. 

 27 22 Q. Okay. Where do you work now? 

 27 23 A. I work at Navy Health Clinic 

 27 24 Hawaii, audiology department. 

 27 25 Q. And how long did you work at the 

 28 1 Schofield Barracks Hearing Conservation Clinic? 

 28 2 A. I would say for about, roughly, 

 28 3 two -- two years and seven months. 

 28 4 Q. Okay. So did you work at the 

 28 5 Schofield Barracks Hearing Conservation Clinic 

 28 6 in 2012, '13, and 2014? 

 28 7 A. Yes. 

 28 8 Q. Okay. And during that time, did 

 28 9 you work with hearing protection devices? 

 28 10 A. Yes.

 

107:23 - 108:1 Revised Toyoma 2020-11-24

 107 23 Q. I have marked as Exhibit 12 a 

 107 24 medical record from Mr. Keefer, dated October 

 107 25 21, 2013. Do you see that, Mr. Toyama? 

 108 1 A. Yes.

116:23 - 117:7 Revised Toyoma 2020-11-24

 116 23 Q. And at the end of this remarks 

 116 24 section, it says: HPD, PREV fit. Do you know 

 116 25 what that notation is in reference to? 

 117 1 A. That he was previously fit with 

 117 2 hearing protection devices. 

 117 3 Q. And based on how this remarks 

 117 4 section is -- sort of the totality of this 

 117 5 remarks section, would that suggest to you that

 

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 178 of 345
Revised Toyoma 2020-11-24 3

 117 6 he had been previously fit with the quad-flange 

 117 7 earplugs?

117:9 - 117:24 Revised Toyoma 2020-11-24

 117 9 A. No. It just states that he was 

 117 10 previously fit with earplugs in general. 

 117 11 Q. Would he have been fitted with 

 117 12 earplugs again during this October 2013 visit? 

 117 13 A. If he didn't have his earplugs 

 117 14 with him. 

 117 15 Q. And if he had brought his 

 117 16 earplugs with him, would it have noted HPD 

 117 17 previously fit? 

 117 18 A. Like I mentioned earlier, the HPD 

 117 19 previously fit meant that he previously got 

 117 20 hearing protection devices fitted. 

 117 21 Q. But it doesn't necessarily say 

 117 22 anything about whether he was fit with hearing 

 117 23 protection devices during this visit? 

 117 24 A. It does not.

131:5 - 131:13 Revised Toyoma 2020-11-24

 131 5 Now, you understand, don't you, 

 131 6 that soldiers have a choice of hearing 

 131 7 protection; right? 

 131 8 A. Oh. I did not know they had a 

 131 9 choice, as to which hearing protection devices 

 131 10 they use. Because they're issued them, so I 

 131 11 don't know if they have a choice. Because if 

 131 12 they're issued by the Army, then they should be 

 131 13 using what is issued, to my knowledge.

 

131:14 - 131:17 Revised Toyoma 2020-11-24

 131 14 Q. Well, let me show you a few 

 131 15 things on this issue. Maybe we can reflect 

 131 16 your memory or help with your understanding. 

 131 17 Let's start with this one.

Re: [131:14-131:17] 

Def Obj Relevance (401, 402); 

Foundation (602) OVERRULED

132:11 - 134:5 Revised Toyoma 2020-11-24

 132 11 (Whereupon, Exhibit 14 was 

 132 12 marked for identification 

 132 13 purposes.) 

 132 14 Q. I've marked it 13 but we'll mark

Re: [132:11-134:5] 

Def Obj Relevance (401, 402); 

Foundation (602); 701 OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 179 of 345
Revised Toyoma 2020-11-24 4

 132 15 it 14 and correct that label Department of 

 132 16 Defense, Number 6055.12. This one is dated 

 132 17 March 5, 2004. 

 132 18 Have you seen that before, Mr. 

 132 19 Toyama? 

 132 20 A. It does not look familiar. 

 132 21 Q. Are you aware that the Department 

 132 22 of Defense would issue instructions pertaining 

 132 23 to the Hearing Conservation Program? 

 132 24 A. Yeah. Yes. 

 132 25 Q. So you were aware that 

 133 1 instructions like this existed that would 

 133 2 provide the guidance for persons like yourself 

 133 3 that operated within the Hearing Conservation 

 133 4 Program; correct? 

 133 5 A. Yes. 

 133 6 Q. Okay. So what I want to do is, I 

 133 7 want to look at Section 6.6.5 of this document. 

 133 8 Do you see Section 6.6.5 there, 

 133 9 sir? 

 133 10 A. Yes, I do. 

 133 11 Q. And it says: Personnel shall be 

 133 12 allowed to choose personal hearing protectors 

 133 13 among those approved devices available through 

 133 14 supply channels unless medically 

 133 15 contraindicated or inappropriate for a 

 133 16 particular hazardous noise exposure. Did I 

 133 17 read that correctly? 

 133 18 A. Yes. 

 133 19 Q. Okay. So this Department of 

 133 20 Defense Instruction would indicate that 

 133 21 military personnel have a choice in their 

 133 22 hearing protection; correct? 

 133 23 A. Yes. 

 133 24 Q. They aren't required to use the 

 133 25 earplugs that you may have issued; correct? 

 134 1 A. Doesn't look like it. 

 134 2 Q. As long as the device is on the 

 134 3 approved list, it can be used by the soldiers;

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 180 of 345
Revised Toyoma 2020-11-24 5

 134 4 correct? 

 134 5 A. Based off of this section, yes.

134:6 - 134:9 Revised Toyoma 2020-11-24

 134 6 Q. Okay. And are you aware that the 

 134 7 Combat Arms Version 2 was an approved device 

 134 8 between 2012 and 2014? 

 134 9 A. I was not aware.

134:10 - 134:15 Revised Toyoma 2020-11-24

 134 10 Q. If it was an approved device, 

 134 11 there would be nothing inappropriate about Mr. 

 134 12 Keefer choosing to use that hearing protection, 

 134 13 would there? 

 134 15 A. Correct.

Re: [134:10-134:15] 

Def Obj Foundation (602); 701; Vague; 

Compound; Misstates (611, 403) OVERRULED

134:16 - 134:20 Revised Toyoma 2020-11-24

 134 16 Q. Since this is 2004, let me show 

 134 17 you one -- Now, this one, I will represent to 

 134 18 you, postdates your time in the military, but 

 134 19 I'm showing it to you so you can see that this 

 134 20 requirement continued, this choice. Hold on.

Re: [134:16-134:20] 

Def Obj Relevance (401, 402); 

Foundation (602); 701 OVERRULED

134:24 - 136:17 Revised Toyoma 2020-11-24

 134 24 All right. You can see that this 

 134 25 is a -- it's a pamphlet from Department of Army 

 135 1 -- Department of the Army. Do you see that? 

 135 2 A. Uh-huh. 

 135 3 (Whereupon, Exhibit 15 was 

 135 4 marked for identification 

 135 5 purposes.) 

 135 6 Q. And Exhibit 15 is labeled as the 

 135 7 Army Hearing Program, are you familiar with 

 135 8 this? 

 135 9 A. Yes. 

 135 10 Q. As part of your work in the Army, 

 135 11 working in Schofield Barracks, were you 

 135 12 familiar with a pamphlet like this? 

 135 13 I understand this one post-dated 

 135 14 your time, but were you aware of pamphlets like 

 135 15 this that provided guidance to you in how you 

 135 16 conducted your practices? 

 135 17 A. I'm not too sure if it provided

Re: [134:24-136:17] 

Def Obj Relevance (401, 402); 

Foundation (602); 701

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 181 of 345
Revised Toyoma 2020-11-24 6

 135 18 guidance on my guidance and practice. But I do 

 135 19 know that we referenced this DA Pamp 40-501 

 135 20 several times. 

 135 21 Q. Okay. So you're familiar with 

 135 22 this document; true? 

 135 23 A. Yes. 

 135 25 Q. I want to go in here and I want 

 136 1 to show you in section 7-14. There we are. 

 136 2 Do you see the section labeled 

 136 3 hearing protection? 

 136 4 A. Yes. 

 136 5 Q. And then on 7-14, sub E, it says: 

 136 6 Personnel may select a hearing protector from 

 136 7 an approved list unless contraindicated for 

 136 8 medical and/or environmental reasons. Did I 

 136 9 read that correctly? 

 136 10 A. Yes. 

 136 11 Q. So based upon the 2004 document I 

 136 12 showed you, and this 2015 document, you would 

 136 13 agree with me that throughout your time at 

 136 14 Schofield Barracks, soldiers had a choice in 

 136 15 their hearing protection? 

 136 17 A. Yes.

136:18 - 137:7 Revised Toyoma 2020-11-24

 136 18 Q. Okay. Now, we talked about that 

 136 19 you don't remember Lewis Keefer; correct? 

 136 20 A. Correct. 

 136 21 Q. You don't remember treating him, 

 136 22 you don't remember interacting with him. If he 

 136 23 walked into that room right there, you wouldn't 

 136 24 know who he was; right? 

 136 25 A. Correct. 

 137 1 Q. Okay. So you can't testify under 

 137 2 oath that you know what type of hearing 

 137 3 protection he used, can you? 

 137 4 A. I cannot. 

 137 5 Q. The most you can do is testify as 

 137 6 to hearing protection you may have issued him; 

 137 7 correct?

Re: [136:18-137:7] 

Def Obj Untimely per PTO 66

SUSTAINED 

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 182 of 345
Revised Toyoma 2020-11-24 7

137:9 - 137:12 Revised Toyoma 2020-11-24

 137 9 A. Correct. 

 137 10 Q. You don't know what hearing 

 137 11 protection he wore on the firing ranges, do 

 137 12 you?

Re: [137:9-137:12] 

Def Obj Untimely per PTO 66

SUSTAINED

137:14 - 137:17 Revised Toyoma 2020-11-24

 137 14 A. I do not. 

 137 15 Q. You don't know what hearing 

 137 16 protection he wore when he was deployed, do 

 137 17 you?

Re: [137:14-137:17] 

Def Obj Untimely per PTO 66

SUSTAINED

137:19 - 138:2 Revised Toyoma 2020-11-24

 137 19 A. I do not. 

 137 20 Q. You don't know what hearing 

 137 21 protection he was issued at basic training, do 

 137 22 you? 

 137 23 A. I do not. 

 137 24 Q. And if Mr. Keefer testified that 

 137 25 he was issued the Combat Arms Version 2 at 

 138 1 basic, you have no basis to disagree with that, 

 138 2 do you?

Re: [137:19-138:2] 

Def Obj Untimely per PTO 66

SUSTAINED

138:4 - 138:8 Revised Toyoma 2020-11-24

 138 4 A. I do not. 

 138 5 Q. If he testified that he was 

 138 6 fitted with the Combat Arms Version 2 at basic 

 138 7 training, you have no basis to dispute that, do 

 138 8 you?

Re: [138:4-138:8] 

Def Obj Untimely per PTO 66

SUSTAINED

138:10 - 138:14 Revised Toyoma 2020-11-24

 138 10 A. I do not. 

 138 11 Q. If he testified that it was his 

 138 12 choice to use the Combat Arms Version 2 

 138 13 throughout his military career, you've got no 

 138 14 reason to disagree with that, do you?

Re: [138:10-138:14] 

Def Obj Untimely per PTO 66

SUSTAINED

138:16 - 139:6 Revised Toyoma 2020-11-24

 138 16 A. I do not. 

 138 17 Q. If he testified that he received 

 138 18 Combat Arms Version 2 Earplugs while in Hawaii, 

 138 19 at Schofield Barracks, you can't disagree with 

 138 20 that, can you? 

 138 21 A. I can't say because I don't know

Re: [138:16-139:6] 

Def Obj Untimely per PTO 66

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 183 of 345
Revised Toyoma 2020-11-24 8

 138 22 how -- when he got to Hawaii, and also when he 

 138 23 left Hawaii. 

 138 24 Q. Yeah. But the only thing you 

 138 25 could say about Hawaii is in the 2012 to 2014 

 139 1 time frame, the Combat Arms Version 2 was not 

 139 2 available at the clinic; right? 

 139 3 A. Yes. 

 139 4 Q. You don't know if it was 

 139 5 available in other places, do you? 

 139 6 A. I do not.

143:6 - 145:11 Revised Toyoma 2020-11-24

 143 6 Q. The next document I want to show 

 143 7 you, let me stop this. One second to find it. 

 143 8 It's just loading. It takes a minute. 

 143 9 Okay. I'm showing you what I've 

 143 10 marked as Exhibit 17. And this is a different 

 143 11 Army Hearing Program pamphlet labeled 

 143 12 ST 4-02.501 from February 1, 2008. Do you see 

 143 13 that? 

 143 14 A. Yes. 

 143 15 Q. Okay. Are you familiar with this 

 143 16 document? 

 143 17 A. No. 

 143 18 Q. Are you familiar with this 

 143 19 designation ST 4-02.501? 

 143 20 A. No. 

 143 21 Q. Okay. Okay. I'm going to take 

 143 22 you into this document, to Section IV -- 

 143 23 Section VI of the document that has a reference 

 143 24 point of earplugs. All right? Do you see 

 143 25 that? 

 144 1 A. Yes. 

 144 2 Q. Okay. And what this says, it 

 144 3 says: Preformed earplugs; correct? 

 144 4 A. Yes. 

 144 5 Q. And a plug like the triple flange 

 144 6 we looked at earlier and the blue Quattro, 

 144 7 those are preformed earplugs; correct? 

 144 8 A. Yes.

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 144 9 Q. It says, under 4-42, it says: 

 144 10 These earplugs requiring an initial annual 

 144 11 fitting by medically trained personnel. Did I 

 144 12 read that correctly? 

 144 13 A. Yes. 

 144 14 Q. And it says: Both ears need to 

 144 15 be fitted individually since some users may 

 144 16 have different sized ear canals and ear canals 

 144 17 change as one ages. Did I read that correctly? 

 144 18 A. Yes. 

 144 19 Q. And was that your general 

 144 20 understanding of preformed earplugs, that they 

 144 21 required an initial and annual fitting? 

 144 22 A. Yes. 

 144 23 Q. And I want to go in one page on 

 144 24 this, and do you see that there's a section on 

 144 25 the Combat Arms Earplug? Do you see that? 

 145 1 A. Yes. 

 145 2 Q. Okay. And it says -- If you go 

 145 3 down -- I don't know if you can see my mouse, 

 145 4 but you see it says: The CAE began to be 

 145 5 issued to all deploying soldiers in 2004. Did 

 145 6 I read that correctly? 

 145 7 A. Yes. 

 145 8 Q. Okay. And so according to this 

 145 9 Army document, as of 2004, any soldier deployed 

 145 10 was issued the CAE, the Combat Arms Earplug; 

 145 11 correct?

145:14 - 147:7 Revised Toyoma 2020-11-24

 145 14 A. Based off of this, yes. 

 145 15 Q. Okay. And were you aware that 

 145 16 Mr. Keefer was deployed to Iraq? 

 145 17 A. I was not. 

 145 18 Q. According to this document, Mr. 

 145 19 Keefer would have been issued the Combat Arms 

 145 20 Earplug; correct? 

 145 22 A. If he was deployed in 2004, yes. 

 145 23 Q. Okay. And it says, if you look 

 145 24 at 4-50: With the double-sided CAE, that's the

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 145 25 old Combat Arms Earplug, correct, the double 

 146 1 sided? 

 146 2 A. Yes. 

 146 3 Q. It says: The green side of the 

 146 4 earplug serves the same purpose as the 

 146 5 triple-flange earplug because it protects 

 146 6 against a variety of noise hazards. The yellow 

 146 7 side minimally softens speech, but will protect 

 146 8 against impulse noise hazards, such as weapon 

 146 9 fire and blasts. The yellow side will not 

 146 10 provide protection against steady-state noise 

 146 11 such as generator, vehicle, and aircraft noise. 

 146 12 This earplug is the best passive protection for 

 146 13 soldiers who need to hear softer level sounds 

 146 14 when exposed to unexpected weapons noise. Did 

 146 15 I read that correctly? 

 146 16 A. Yes. 

 146 17 Q. And then it says: To insert the 

 146 18 double-sided CAE, follow the directions for 

 146 19 inserting the triple-flange earplug. However, 

 146 20 the insertion tool is not used. One size fits 

 146 21 most. Did I read that correctly? 

 146 22 A. Yes. 

 146 23 Q. Does either section, 4-50 or 

 146 24 4-51, say that the double-sided CAE needs to be 

 146 25 medically fitted? 

 147 1 A. It does not. 

 147 2 Q. It says, actually, one size fits 

 147 3 most, doesn't it? 

 147 4 A. Yes. 

 147 5 Q. And that's the purpose of the 

 147 6 fitting, is to figure out the correct sizing; 

 147 7 right?

147:9 - 148:3 Revised Toyoma 2020-11-24

 147 9 A. Yes. 

 147 10 Q. Okay. And if you go to 4-52, it 

 147 11 says: The dual mode single-sided CAE offers 

 147 12 all of the protection of the double-sided CAE 

 147 13 in a single-sided device, with the added

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 147 14 benefit of multiple sizes. Did I read that 

 147 15 correctly? 

 147 16 A. Yes. 

 147 17 Q. That's the Combat Arms version 

 147 18 that you're familiar with; correct? 

 147 19 A. Yes. 

 147 20 Q. Okay. It says: This earplug 

 147 21 requires fitting by medically trained personnel 

 147 22 with training in fitting hearing protection. 

 147 23 Did I read that correctly? 

 147 24 A. Yes. 

 147 25 Q. So at least according to this 

 148 1 document, there's a difference in the newer CAE 

 148 2 and the older CAE in that the older CAE does 

 148 3 not require medical fitting; correct?

148:5 - 149:4 Revised Toyoma 2020-11-24

 148 5 A. Well, it's confusing. To me it 

 148 6 looks contradicting to what it's saying in 

 148 7 this. 

 148 8 Q. Please explain. 

 148 9 A. 4-51, bullet two, one size fits 

 148 10 most. 

 148 11 Q. Uh-huh. 

 148 12 A. It's referring to the 

 148 13 double-sided Combat Arms Earplugs. 

 148 14 Q. That's correct. 

 148 15 A. But in section 4-52, they're 

 148 16 talking about the -- 

 148 17 Q. The dual-ended single-sided? 

 148 18 A. Dual mode single-sided of the 

 148 19 double-sided CAE required -- 

 148 20 Q. Now the -- 

 148 21 A. -- requires fitting by medical -- 

 148 22 Q. If you don't mind, it's comparing 

 148 23 the protection offered by the dual mode 

 148 24 single-sided to the protection offered by the 

 148 25 double-sided CAE. Do you see that? 

 149 1 A. Okay. Yes, I see that. 

 149 2 Q. And then it gives -- And then it

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 149 3 says: And it gives this added benefit of 

 149 4 multiple sizes; correct?

149:6 - 149:7 Revised Toyoma 2020-11-24

 149 6 A. Yes. For the single-sided 

 149 7 device.

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149:16 - 149:19 Revised Toyoma 2020-11-24

 149 16 Q. Yes, sir. The single-sided CAE, 

 149 17 according to this document, requires fitting by 

 149 18 medically trained personnel; and the dual-sided 

 149 19 does not; correct?

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149:21 - 150:3 Revised Toyoma 2020-11-24

 149 21 A. Yes. It states that the -- to my 

 149 22 understanding, that the dual mode single-sided 

 149 23 requires fitting by medically trained 

 149 24 personnel. 

 149 25 Q. So if Mr. Keefer were wearing the 

 150 1 Combat Arms Version 2, the dual-sided, that 

 150 2 does not require medical fitting by trained 

 150 3 personnel; correct?

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150:5 - 150:25 Revised Toyoma 2020-11-24

 150 5 A. Not that I see that it's stated. 

 150 6 (Whereupon, Exhibit 18 was 

 150 7 marked for identification 

 150 8 purposes.) 

 150 9 Q. Okay. The next document I want 

 150 10 to show you is a Department of Defense 

 150 11 Instruction from 2010. 

 150 12 All right. Can you see that, Mr. 

 150 13 Toyama? 

 150 14 A. Yes. 

 150 15 Q. Okay. You see that this is a 

 150 16 Department of Defense Instruction, Number 

 150 17 6055.12. This one is dated December 3, 2010; 

 150 18 correct? 

 150 19 A. Yes. 

 150 20 Q. Okay. I may have pulled up the 

 150 21 wrong one. Okay. There we are. 

 150 22 So this would be an update to one 

 150 23 of the ones we showed you earlier. Remember

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 150 24 that one was from 2004? 

 150 25 A. Yes.

151:2 - 151:18 Revised Toyoma 2020-11-24

 151 2 Q. Okay. So let's go to page 12 of 

 151 3 this document. And you see, again, this is 

 151 4 Section 7, Personnel Hearing Protectors. Do 

 151 5 you see that? 

 151 6 A. Yes. 

 151 7 Q. Okay. I want to go down to 7-g, 

 151 8 do you see that, down at the bottom of the 

 151 9 page? 

 151 10 A. Yes. 

 151 11 Q. And it says: Preformed sized 

 151 12 earplugs shall be fitted and issued only under 

 151 13 the supervision of personnel specifically 

 151 14 trained to fit earplugs. Did I read that 

 151 15 correctly? 

 151 16 A. Yes. 

 151 17 Q. The Combat Arms Version 2 was not 

 151 18 a sized earplug, was it?

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151:20 - 151:23 Revised Toyoma 2020-11-24

 151 20 A. It's -- It was -- I guess, based 

 151 21 on the document, it was a one-size-fits-most. 

 151 22 Q. Right. That's not a sized -- It 

 151 23 didn't come in multiple sizes; right?

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151:25 - 152:14 Revised Toyoma 2020-11-24

 151 25 A. Not that I was aware. 

 152 1 Q. Okay. This goes on to say: For 

 152 2 recruits likely to be assigned to occupational 

 152 3 noise hazardous duties, the ideal time to 

 152 4 initially fit appropriate hearing protection 

 152 5 and provide education on the prevention of 

 152 6 hearing loss is during basic training and prior 

 152 7 to any exposures to hazardous noise. Did I 

 152 8 read that correctly? 

 152 9 A. Yes. 

 152 10 Q. If Mr. Keefer testified that he 

 152 11 was taught how to use the Combat Arms Version 2 

 152 12 at basic training, his use of the Combat Arms

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 152 13 Version 2 would be in compliance with this 

 152 14 Department of Defense Instruction; correct?

152:16 - 152:18 Revised Toyoma 2020-11-24

 152 16 A. Based off of this instruction, 

 152 17 yes. For prior to exposure to noise, it could 

 152 18 have been after basic training.

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168:25 - 169:7 Revised Toyoma 2020-11-24

 168 25 Q. Now, the other thing we talked a 

 169 1 bit about with you this morning was this -- 

 169 2 this box that's marked other, and then it goes 

 169 3 on; and in Mr. Keefer's case it described 

 169 4 either -- like one described Combat Arms 

 169 5 Earplug and another described quad flange; 

 169 6 correct? 

 169 7 A. Yes.

 

169:8 - 169:11 Revised Toyoma 2020-11-24

 169 8 Q. And you were starting to say, I 

 169 9 thought, that it could be that the plug 

 169 10 referenced in this remarks box is the plug that 

 169 11 was fitted that day; correct?

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(611, 403)

OVERRULED 

169:13 - 169:15 Revised Toyoma 2020-11-24

 169 13 A. It could have been either the 

 169 14 earplugs that were fitted that day or the 

 169 15 earplugs that were used.

Re: [169:13-169:15] 

Def Obj Misstates; Leading; Vague 

(611, 403)

OVERRULED 

169:16 - 170:3 Revised Toyoma 2020-11-24

 169 16 Q. Okay. So it's not -- It's not 

 169 17 just 100 percent fact, that if you wrote 

 169 18 quad-flange plug in that remark, that that 

 169 19 means Mr. Keefer told you: I was using a 

 169 20 quad-flange plug; correct? 

 169 21 A. Correct. 

 169 22 Q. Just as well could have been that 

 169 23 that's what you fitted him for that day; 

 169 24 correct? 

 169 25 A. Yes. 

 170 1 Q. And you didn't have a Combat Arms 

 170 2 Version 2 to fit him with; right? 

 170 3 A. Correct.

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Revised Toyoma 2020-11-24 15

170:4 - 170:6 Revised Toyoma 2020-11-24

 170 4 Q. And if he testified that he used 

 170 5 the Combat Arms Version 2, again, you've got no 

 170 6 reason to disagree with that; right?

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Argumentative; Leading; Misstates; 

Vague (611, 403)

OVERRULED

170:8 - 170:8 Revised Toyoma 2020-11-24

 170 8 A. Correct.

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Argumentative; Leading; Misstates; 

Vague (611, 403)

OVERRULED

170:9 - 170:12 Revised Toyoma 2020-11-24

 170 9 Q. If he testified that he never 

 170 10 actually wore the blue Quattro because he 

 170 11 viewed it as cheap, you've got no reason to 

 170 12 disagree with that, do you?

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Argumentative; Leading; Misstates; 

Vague (611, 403)

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170:14 - 170:19 Revised Toyoma 2020-11-24

 170 14 A. Well, we did issue out those blue 

 170 15 quad flanges; and, you know, the Combat Arms, 

 170 16 both versions, were only triple flange. And 

 170 17 because this blue quad flange had an additional 

 170 18 flange, despite the material, it still would 

 170 19 have provided more protection because of the --

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Leading; Misstates; Vague; 

Argumentative (611, 403) OVERRULED

170:20 - 170:25 Revised Toyoma 2020-11-24

 170 20 Q. It's your testimony -- It's your 

 170 21 testimony that the quad-flange plug would 

 170 22 provide more protection than the Combat Arms 

 170 23 Version 2? 

 170 24 A. In my opinion, based off the 

 170 25 number of flanges, yes.

Re: [170:20-170:25] 

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OVERRULED 

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DEFENDANTS’ AFFIRMATIVE 

DESIGNATIONS

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Pltf Objections 3M Objections Ruling

8:03 - 8:09 Babeu, Lorraine 2020-03-10 0:08

8:03 Q. Good morning, ma'am.

8:04 Could you state your full name

8:05 for the record, please?

8:06 A. Lorraine Angela Babeu.

8:07 Q. And I understand you're a

8:08 retired lieutenant colonel?

8:09 A. Yep.

18:01 - 19:06 Babeu, Lorraine 2020-03-10 1:21

18:01 Q. So I understand you got a Ph.D.

18:02 in 2000 or 2001 from UF?

18:03 A. 2001, yeah, University of

18:04 Florida.

18:05 Q. And how about undergrad, where

18:06 did you go?

18:07 A. I started undergrad at Norfolk

18:08 State University in Virginia.

18:09 Q. Uh-huh.

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

18:11 Florida State in Tallahassee, Florida, and

18:12 from there I went on active duty.

18:13 And some point in active duty I

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

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

18:16 that at University of Florida.

18:17 Q. And when did you go on active

18:18 duty?

18:19 A. What year? '88.

18:20 Q. And did you perform functions

18:21 on bases as an audiologist or an audiology

18:22 technician?

18:23 A. As an audiologist.

18:24 Q. Okay. And what years did you

18:25 do that, ma'am?

19:01 A. Pretty much my entire career,

19:02 from '88 to 2011.

19:03 Q. Okay.

19:04 A. Oh, wait. Yeah, my last

19:05 assignment I wasn't working in audiology, so

19:06 that would have been 2005 until 2011.

19:19 - 20:09 Babeu, Lorraine 2020-03-10 1:52

19:19 And at what bases were you

19:20 serving on?

19:21 A. I started at Fort Devens, then

3M Affirmatives Pltf Counters

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

19:23 Fort Sam, Houston, for a course.

19:24 Where did I go after that? No,

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

20:01 Devens, went to Fort Sam for a course, then

20:02 went to Fort Knox. And after Fort Knox, I

20:03 went to Fort Hood in Texas, and then from

20:04 Fort Hood I went to the University of

20:05 Florida.

20:06 From there I went to Aberdeen

20:07 Proving Ground, and after Aberdeen I went to

20:08 Northern Virginia Tricare, and I retired from

20:09 there.

20:14 - 20:21 Babeu, Lorraine 2020-03-10 0:18

20:14 Q. Okay. And if we could just

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

20:16 when you were at Aberdeen Proving Ground.

20:17 When was that?

20:18 A. '01 to '05.

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

20:20 the Army Research Lab there?

20:21 A. Correct.

35:09 - 35:14 Babeu, Lorraine 2020-03-10 0:10

35:09 Q. Do you recall that the

35:10 double-ended Combat Arms, which -- what I've

35:11 called the version 2, had an end that was for

35:12 steady-state noise and another end that was

35:13 for impulse noise?

35:14 A. Yep. Yes.

35:15 - 35:18 Babeu, Lorraine 2020-03-10 0:07

35:15 Q. Okay. And for the benefit of

35:16 the jury, steady-state noise might be noise

35:17 from a generator or a truck or a plane, fair?

35:18 A. Correct, uh-huh.

35:19 - 36:02 Babeu, Lorraine 2020-03-10 0:16

35:19 Q. Okay. Impulse noise could

35:20 be -- I guess it could be something dropping

35:21 that's real loud, just instantaneously, or a

35:22 gun?

35:23 A. A gun.

35:24 Q. That's -- in your field,

35:25 impulse noise was basically gun noise?

36:01 A. Right. Impact is dropping

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 194 of 345
36:02 something.

48:15 - 48:15 Babeu, Lorraine 2020-03-10 0:01

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

54:21 - 56:09 Babeu, Lorraine 2020-03-10 1:22

54:21 Q. I think you told us based on

54:22 how things were structured within the Army,

54:23 Dr. Ohlin would have been under the medical

54:24 command --

54:25 A. Correct.

55:01 Q. -- and you would have been

55:02 under the research and engineering command?

55:03 A. Correct.

55:04 Q. Okay. But you had some

55:05 occasion to deal with one another as it

55:06 related to hearing protection devices, fair?

55:07 A. Okay. So Doug was in charge of

55:08 hearing conservation for the Army. So when

55:09 we did our work, he was our counsel, you

55:10 know. He would be the guy if we had a

55:11 question, there was something, he would help

55:12 make that decision and then tell us, this is

55:13 what you're going to do.

55:14 So...

55:15 Q. And now just so I have the time

55:16 frame right, would that -- when you said he

55:17 would tell you what you were going to do,

55:18 that would have been when you were at Army

55:19 Research Lab? Is that the window of time

55:20 you're referring to?

55:21 A. Well, no.

55:22 Q. In earlier times.

55:23 A. Yeah. It's just -- but he and

55:24 I also communicated about the Combat Arms

55:25 Earplug.

56:01 Q. Uh-huh.

56:02 A. He was the one that -- when I

56:03 arrived at the lab, he said, hey, we don't

56:04 know a lot about this plug. Maybe you want

56:05 to consider doing some research on it.

56:06 Q. Okay. And this is when you

56:07 were at Army Research Lab in Aberdeen; is

56:08 that right?

56:09 A. Correct.

57:03 - 57:06 Babeu, Lorraine 2020-03-10 0:05

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 195 of 345
57:03 Q. Okay. So you said Dr. Ohlin

57:04 was involved with the Combat Arms version 2

57:05 at the time when you got there?

57:06 A. Yes.

78:14 - 79:12 Babeu, Lorraine 2020-03-10 1:02

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

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

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

78:17 like it's got a page number.

78:18 Do you see that?

78:19 A. Uh-huh.

78:20 Q. Okay. And would the first page

78:21 be fairly characterized as an abstract?

78:22 Study abstract?

78:23 A. Yes.

78:24 Q. Okay. And the NHCA stands for

78:25 what, ma'am?

79:01 A. NHCA. Where is that?

79:02 Oh, I have no idea. Oh, it may

79:03 have been the National Hearing Conservation

79:04 Association. May have been their brochure

79:05 because I did a presentation there.

79:06 Q. Okay.

79:07 A. But NHCA, that's -- if you ask

79:08 an audiologist what's NHCA, that's what we're

79:09 going to say.

79:10 Q. National Hearing Conservation

79:11 Association?

79:12 A. Conservation association.

79:21 - 79:25 Babeu, Lorraine 2020-03-10 0:05

79:21 Q. And did you give a presentation

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

79:23 A. Yeah.

79:24 Q. -- at the NHCA?

79:25 A. Sure. Sure did.

81:11 - 81:18 Babeu, Lorraine 2020-03-10 0:17

81:11 Q. Okay. So the abstract here

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

81:13 approved the use of the Combat Arms Earplug,

81:14 which is an expanded French version of the

81:15 level-dependent earplug developed at the

81:16 French-German Institute."

81:17 Do you see that?

81:18 A. Correct, uh-huh.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 196 of 345
81:24 - 82:01 Babeu, Lorraine 2020-03-10 0:03

81:24 It says, "The purpose of this

81:25 project was to determine the effects of

82:01 CAE" --

82:02 - 82:03 Babeu, Lorraine 2020-03-10 0:02

82:02 Is that Combat Arms Earplug?

82:03 A. Correct, uh-huh.

82:04 - 82:04 Babeu, Lorraine 2020-03-10 0:00

82:04 Q. Okay.

82:05 - 82:10 Babeu, Lorraine 2020-03-10 0:11

82:05 -- "on the soldier's ability to

82:06 localize sound sources in various listening

82:07 conditions. The participants were seated in

82:08 the center of an array of 37 loud speakers

82:09 distributed over three circular rings."

82:10 A. Right.

82:11 - 82:14 Babeu, Lorraine 2020-03-10 0:05

82:11 Q. Okay. You remember that test

82:12 environment?

82:13 A. I remember the test

82:14 environment, okay?

82:15 - 82:23 Babeu, Lorraine 2020-03-10 0:18

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

82:16 remember the test environment?

82:17 A. I remember the test

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

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

82:20 want you to know.

82:21 But I remember because of the

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

82:23 called it, yeah.

83:01 - 84:06 Babeu, Lorraine 2020-03-10 1:49

83:01 Q. And then there's a short

83:02 summary on the first page. It says, "Three

83:03 groups of 12 listeners each were used as

83:04 participants."

83:05 It says, "Group 1 used the

83:06 yellow side of the Combat Arms Earplug,

83:07 Group 2 used the green side, and Group 3 used

83:08 the E-A-R foam plug."

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 197 of 345
83:09 Do you see that?

83:10 A. Uh-huh.

83:11 Q. And then it talks about within

83:12 each group there were four listening

83:13 conditions and quiet noise and protected and

83:14 unprotected, right?

83:15 A. Yeah.

83:16 Q. Okay. And then is the purpose

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

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

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

83:20 elaborate for us.

83:21 A. person is sitting in a

83:22 chair --

83:23 A. Uh-huh.

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

83:25 arranged around them --

84:01 A. Correct.

84:02 Q. -- and pointing at them.

84:03 A. Uh-huh.

84:04 Q. And sounds are played at that

84:05 person from different speakers --

84:06 A. Correct.

84:07 - 84:20 Babeu, Lorraine 2020-03-10 1:41

84:07 Q. -- and the person is to

84:08 identify where they think the sound came

84:09 from?

84:10 A. Right.

84:11 Q. And so what you were doing was

84:12 you were measuring the success rate of people

84:13 figuring out where the sound came from with

84:14 open ears or with closed ears, with different

84:15 hearing protection devices, fair?

84:16 A. Right, uh-huh.

84:17 Q. Okay. You know, we have a, I

84:18 think, a color version of your presentation

84:19 that might be easier to work with than that

84:20 one. It's P1510.

84:25 - 85:07 Babeu, Lorraine 2020-03-10 0:10

84:25 You see before you now P1510.

85:01 If you go to .2, there's a cover page that

85:02 says, "Sound localization with the Combat

85:03 Arms Earplug."

85:04 A. Correct.

85:05 Q. Does that look familiar to you

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 198 of 345
85:06 now?

85:07 A. Uh-huh.

85:15 - 86:09 Babeu, Lorraine 2020-03-10 0:27

85:15 .5 is showing that double-ended

85:16 design, right?

85:17 A. Correct.

85:18 Q. And we didn't really talk about

85:19 it before, but on the left it looks like the

85:20 yellow -- the yellow tips has been pulled off

85:21 so you can see the stem, right?

85:22 A. Right, uh-huh.

85:23 Q. And there's a little hole in

85:24 that stem --

85:25 A. Right.

86:01 Q. -- where sound would go

86:02 through?

86:03 A. Right, uh-huh.

86:04 Q. And it would go up the stem to

86:05 come out a hole on the tip of the yellow end,

86:06 right?

86:07 A. Correct.

86:08 Q. Okay. And that's the so-called

86:09 level-dependent end?

86:10 - 86:22 Babeu, Lorraine 2020-03-10 0:24

86:10 A. Yeah.

86:11 Q. Okay. Meaning you get

86:12 attenuation when there's an impulse noise,

86:13 but you shouldn't have much when there's not

86:14 an impulse noise, fair?

86:15 A. Right, uh-huh.

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

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

86:18 was to assess the effect of level-dependent

86:19 hearing protection on the user's ability to

86:20 localize sounds in quiet noise."

86:21 Right?

86:22 A. Right.

87:10 - 88:10 Babeu, Lorraine 2020-03-10 1:43

87:10 Q. It looks like for this

87:11 particular test, though, if you go to .8,

87:12 this was a test using the female voice saying

87:13 "Joe."

87:14 A. Correct.

87:15 Q. And I won't do a very good

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 199 of 345
87:16 female voice, but if I'm understanding this,

87:17 you know, on cue or by a program, it's saying

87:18 "Joe," "Joe," "Joe," and it's coming out of

87:19 different speakers --

87:20 A. Right.

87:21 Q. -- and the listener is to do

87:22 their best to estimate where --

87:23 A. Right.

87:24 Q. -- the sound was coming from?

87:25 A. Uh-huh.

88:01 Q. Is that fair?

88:02 A. Uh-huh.

88:03 Q. Okay. If you go to the next

88:04 page, we see that the Combat Arms was not

88:05 alone in this study. There was a -- there

88:06 were so-called foamies or E-A-R foam?

88:07 A. Right.

88:08 Q. Okay. Those are the bottom,

88:09 right?

88:10 A. Correct.

88:11 - 88:14 Babeu, Lorraine 2020-03-10 0:04

88:11 Q. And then there was the

88:12 single-side French.

88:13 Do you see that?

88:14 A. Yes.

93:04 - 93:06 Babeu, Lorraine 2020-03-10 0:04

93:04 And so were you an experimenter

93:05 on this study, ma'am?

93:06 A. Yes.

93:10 - 93:17 Babeu, Lorraine 2020-03-10 0:16

93:10 It says, "Method: Earplug

93:11 fitting, treatment order randomized; prior to

93:12 an earplug-use treatment, proper earplug

93:13 insertion demonstrated; unless grossly wrong,

93:14 experimenter did not tamper with the fit of

93:15 the earplug."

93:16 Do you see that?

93:17 A. Uh-huh.

93:18 - 93:22 Babeu, Lorraine 2020-03-10 0:24

93:18 Q. Okay. Could I have P1166A?

93:19 We'll come back to this

93:20 document in a moment.

93:21 And, Zach, could you pull up on

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 200 of 345
93:22 the screen P1166A?

93:23 - 93:23 Babeu, Lorraine 2020-03-10 0:01

93:23 P1166A. And I'm just going to

93:24 - 93:25 Babeu, Lorraine 2020-03-10 0:02

93:24 pause before we get into a more detailed

93:25 description of it --

94:08 - 95:01 Babeu, Lorraine 2020-03-10 1:34

94:08 Q. It says USACHPPM, TG 41, March

94:09 2006.

94:10 TG is your technical guys?

94:11 A. Yeah.

94:12 Q. Okay. Can we scroll down?

94:13 It says, "Personal hearing

94:14 protection devices, their fitting, care and

94:15 use."

94:16 Do you see that?

94:17 A. (Witness nods head.)

94:18 Q. And this one's dated March

94:19 of 2006, which I guess would have been a

94:20 point in time after you'd gone to Tricare.

94:21 But it says, "Supercedes" -- bottom left,

94:22 Mike.

94:23 "Supersedes USAEHA TG 41,

94:24 October 1975."

94:25 Do you see that?

95:01 A. Yeah.

95:19 - 96:14 Babeu, Lorraine 2020-03-10 1:50

95:19 And then when we go to .36, we

95:20 see Combat Arms Earplugs. And these are the

95:21 double-ended Combat Arms Earplug insertion

95:22 technique in the technical guide of the

95:23 USACHPPM, right?

95:24 A. Yes.

95:25 Q. Okay. And so in this technical

96:01 guide for the Combat Arms Earplugs, under

96:02 double-ended Combat Arms Earplug insertion

96:03 technique, it says, "The double-ended Combat

96:04 Arms Earplug is properly fitted and provides

96:05 the best attenuation when all three flanges,

96:06 olive drab or yellow, snugly contact all

96:07 sides of the ear canal. Insert this item by

96:08 positioning one arm behind the head and

96:09 pulling the ear gently up and away from the

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 201 of 345
96:10 head, using the free hand to fit the

96:11 earplug." And then it shows the two

96:12 pictures.

96:13 Do you see that?

96:14 A. Right.

96:15 - 96:22 Babeu, Lorraine 2020-03-10 0:22

96:15 Q. Okay. And those are the

96:16 techniques that are described for fitting

96:17 within the technical guide of CHPPM, correct?

96:18 A. Correct.

96:19 Q. Okay. And then on the next

96:20 page it shows proper and improper fit of the

96:21 double-ended Combat Arms Earplug.

96:22 Do you see that, 53 and 54?

96:23 - 97:04 Babeu, Lorraine 2020-03-10 0:05

96:23 A. (Witness nods head.)

96:24 Q. Do you see that, ma'am?

96:25 A. Uh-huh.

97:01 Q. Okay.

97:02 A. Oh, sorry, yes.

97:03 Q. Yeah, that's fine. You're

97:04 probably looking at the pictures.

97:05 - 97:13 Babeu, Lorraine 2020-03-10 0:15

97:05 And so when you were running

97:06 studies and you were fitting people or

97:07 evaluating fit, you would have done it

97:08 consistent with the CHPPM guides?

97:09 A. Right.

97:10 Q. Okay. And you would have

97:11 followed these insertion techniques and

97:12 evaluations for proper and improper fit?

97:13 A. Correct.

97:14 - 98:24 Babeu, Lorraine 2020-03-10 1:22

97:14 Q. Okay. And if we go to .85,

97:15 there's a -- yeah, that's great, Mike, thank

97:16 you, so we can see the DA poster.

97:17 It says, "DA poster 40-501 O,

97:18 March 2006."

97:19 Do you see that?

97:20 A. Yes.

97:21 Q. Okay. DA, is that Department

97:22 of Army?

97:23 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 202 of 345
97:24 Q. Okay. And they provide posters

97:25 for audiologists on bases to have available

98:01 to them in their use?

98:02 A. Yeah. It's not just for us.

98:03 It's -- we disseminate it to the units.

98:04 Q. Oh, okay. Okay.

98:05 So these are materials that are

98:06 generally available, and I guess they have a

98:07 number in the bottom so if you want more, you

98:08 can order them?

98:09 A. Correct.

98:10 Q. Okay. And it talks about "For

98:11 maximum protection and comfort, insert the

98:12 Combat Arms Earplug, double-ended, as

98:13 follows."

98:14 And these would be for -- made

98:15 available in a prominent place so service

98:16 members could see them as well?

98:17 A. Right. Like in the motor pool

98:18 or anyplace that they would be -- and they

98:19 have a wall to put it up on, yeah.

98:20 Q. Okay. Okay. And from your

98:21 experience being on bases, you would see

98:22 things like this in an area where it was

98:23 prominent?

98:24 A. Correct.

98:25 - 100:02 Babeu, Lorraine 2020-03-10 1:47

98:25 Q. Okay. Again, "For maximum

99:01 protection and comfort, insert the Combat

99:02 Arms Earplug, double-ended, as follows. A

99:03 one-size-only earplug with a double-tree

99:04 design: When the olive -- when the solid,

99:05 olive-colored tip of the plug is properly

99:06 inserted in the ear canal, it protects

99:07 against steady-state noise, e.g., helicopters

99:08 or armored personnel carriers."

99:09 Did I read that correctly?

99:10 A. Yes.

99:11 Q. That's consistent with that --

99:12 that kind of sell sheet we were looking at

99:13 from Aearo earlier.

99:14 Remember that?

99:15 A. Right. Uh-huh.

99:16 Q. Okay. On 3 it says, "When the

99:17 open, yellow-colored tip of the plug is

99:18 properly inserted into the ear canal, it

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 203 of 345
99:19 protects against impulse noise, e.g., weapons

99:20 fire."

99:21 Right?

99:22 A. Yes.

99:23 Q. Okay. "In this latter

99:24 configuration, the hearing protector allows

99:25 speech communication and detection, as well

100:01 as localization of acoustic sources."

100:02 A. Correct.

100:03 - 100:04 Babeu, Lorraine 2020-03-10 0:02

100:03 Q. Did I read that correct?

100:04 A. Correct.

100:22 - 101:01 Babeu, Lorraine 2020-03-10 0:09

100:22 Q. Okay. In that PowerPoint.

100:23 And so when you were fitting --

100:24 training people how to fit, you would have

100:25 trained them consistent with that TG 41 we

101:01 just looked at?

101:03 - 101:03 Babeu, Lorraine 2020-03-10 0:00

101:03 THE WITNESS: Yes.

101:05 - 101:07 Babeu, Lorraine 2020-03-10 0:04

101:05 Q. And when you were evaluating

101:06 proper or improper fit, you would have used

101:07 the same guide?

101:09 - 101:12 Babeu, Lorraine 2020-03-10 1:35

101:09 THE WITNESS: Correct.

101:10 QUESTIONS BY MR. BUCHANAN:

101:11 Q. Okay. Now -- okay. So let me

101:12 go forward here -- actually, it's kind of

101:13 - 102:02 Babeu, Lorraine 2020-03-10 0:26

101:13 interesting to look at. If you go to .13,

101:14 there's this kind of program where you -- I

101:15 guess that the user sitting in the chair --

101:16 A. Right.

101:17 Q. -- would try and identify where

101:18 the sound was coming and the elevation it was

101:19 coming from, fair?

101:20 A. Yes.

101:21 Q. Okay. And it looks like there

101:22 was an option to use different sounds --

101:23 A. Right. Right.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 204 of 345
101:24 Q. -- at the bottom.

101:25 On the bottom left, we see "F

102:01 Joe." Is that female voice Joe?

102:02 A. Yes.

102:03 - 102:12 Babeu, Lorraine 2020-03-10 0:28

102:03 Q. Okay. So the experimenter, I

102:04 guess in this case you, could pick the sound

102:05 that you were going to use, and the person

102:06 was sitting in the chair, whether it was 12

102:07 or 36, open or closed, and you would evaluate

102:08 the extent to which they were able to

102:09 properly localize the sound, right?

102:10 A. Right. Uh-huh.

102:11 Q. Okay. Let's go to -- if we go

102:12 to .15.

102:13 - 102:16 Babeu, Lorraine 2020-03-10 0:12

102:13 You graphed out your results

102:14 and the average errors for each of the angles

102:15 that people were presented, right?

102:16 A. Right.

102:17 - 103:18 Babeu, Lorraine 2020-03-10 1:44

102:17 Q. Okay. And so across the bottom

102:18 we have the presentation angles. Going up

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

102:20 versus the presentation angle, right?

102:21 A. Right.

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

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

102:24 A. Yes.

102:25 Q. Thank you.

103:01 And so the legend on the bottom

103:02 says, "No earplug, single side, CAE Y."

103:03 Is that the Combat Arms, the

103:04 yellow end?

103:05 A. Yes.

103:06 Q. And CAE G, that would be the

103:07 green end?

103:08 A. Correct.

103:09 Q. And then the E-A-R Classic

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

103:11 that spongy one that --

103:12 A. Yes.

103:13 Q. Okay.

103:14 -- people sometimes called

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 205 of 345
103:15 foamies?

103:16 A. Yes.

103:17 Q. Okay.

103:18 A. Sure do.

103:19 - 103:21 Babeu, Lorraine 2020-03-10 0:05

103:19 Q. And you graphed them with

103:20 colors that actually make us easy to follow

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

103:22 - 104:03 Babeu, Lorraine 2020-03-10 0:23

103:22 A. Right.

103:23 Q. Okay. And we can see that the

103:24 results for the errors for F Joe -- we see,

103:25 for example, at zero degrees, looks like the

104:01 green end has more error than the yellow end,

104:02 right? Zero degree presentation angle?

104:03 A. Right.

104:04 - 104:05 Babeu, Lorraine 2020-03-10 0:04

104:04 Q. We see more error with the Re: [104:04 to 104:05]

104:05 yellow end than the green end, right? Def Obj Argumentative (611,

403)

104:07 - 104:15 Babeu, Lorraine 2020-03-10 0:15

104:07 THE WITNESS: More error? No. Re: [104:07 to 104:09]

104:08 Are you talking about -- zero, Def Obj Argumentative (611,

104:09 zero, correct? 403)

104:10 QUESTIONS BY MR. BUCHANAN:

104:11 Q. I'm at zero, zero, yes, and on

104:12 the left side it says "average error"?

104:13 A. Right. And so the -- which one

104:14 did you say -- so now repeat your question,

104:15 please.

104:16 - 104:22 Babeu, Lorraine 2020-03-10 0:07

104:16 Q. Yes. At zero --

104:17 A. Uh-huh.

104:18 Q. -- for a presentation angle of

104:19 zero --

104:20 A. Right.

104:21 Q. -- there was more error with

104:22 the green end than the yellow end?

104:24 - 104:24 Babeu, Lorraine 2020-03-10 0:00

104:24 THE WITNESS: Yes.

OBJECTION WITHDRAWN, 

3/11/2021

OBJECTION WITHDRAWN, 

3/11/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 206 of 345
105:02 - 106:03 Babeu, Lorraine 2020-03-10 1:51

105:02 Q. Okay. When you go to

105:03 30 degrees as the presentation angle, you see

105:04 more error with the yellow end than the green

105:05 end, right?

105:06 A. Yes.

105:07 Q. You go to 60 degrees with the

105:08 presentation angle, you see more error with

105:09 the yellow end than the green ends, right?

105:10 A. Correct.

105:11 Q. 90 degrees, more error with the

105:12 yellow than green, right?

105:13 A. Right.

105:14 Q. We'll call it close to even or

105:15 maybe a little more error with the green on

105:16 120, right?

105:17 A. Right.

105:18 Q. More error, the yellow end at

105:19 150, right?

105:20 A. Right.

105:21 Q. And then more error with the

105:22 yellow -- the green end at 180, right?

105:23 A. Green end at 180, yeah, uh-huh.

105:24 Q. Okay. And then you did the

105:25 same type of presentation for the -- did the

106:01 same type of presentation for the female

106:02 voice Joe with a noisier environment, right?

106:03 A. Right.

106:04 - 107:15 Babeu, Lorraine 2020-03-10 1:01

106:04 Q. So you're evaluating it in a

106:05 quiet environment and then you actually

106:06 turned up the background noise a little and

106:07 saw were there changes, right?

106:08 A. Uh-huh.

106:09 Q. Is that right?

106:10 A. Yes.

106:11 Q. Okay. And then for female Joe

106:12 voice, in a noise environment -- this would

106:13 be .17, Mike -- and if we go through this

106:14 again, we see more error at zero degrees

106:15 presentation angle in the yellow end versus

106:16 the green end, right?

106:17 A. Yes.

106:18 Q. Okay. You go to 30 degrees,

106:19 you have more with the yellow end versus the

106:20 green end?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 207 of 345
106:21 A. Yes.

106:22 MR. FIELDS: Objection. Form.

106:23 QUESTIONS BY MR. BUCHANAN:

106:24 Q. You go to 60 degrees

106:25 presentation angle, and what has more error,

107:01 the green or the yellow?

107:02 A. The green.

107:03 Q. Okay. You go to 90 degrees,

107:04 the yellow end's got more error, right?

107:05 A. Right.

107:06 Q. You go to 120 degrees, I think

107:07 it's close, but I think green's got more

107:08 error, right?

107:09 A. Right.

107:10 Q. Okay. You get 150 degrees, the

107:11 yellow end's got more error?

107:12 A. Right.

107:13 Q. And you get to 180 degrees, it

107:14 looks like the green end's got more error,

107:15 correct?

107:16 - 107:19 Babeu, Lorraine 2020-03-10 0:10

107:16 A. Right, uh-huh.

107:17 Q. Okay. So, really, depending

107:18 on, you know, which presentation angle, what

107:19 was winning out, green versus yellow, fair?

107:22 - 108:06 Babeu, Lorraine 2020-03-10 0:24

107:22 Q. Is that fair?

107:23 A. Uh-huh.

107:24 Q. And I guess you tabulated these

107:25 results on .18 and said -- I'm sorry, yeah.

108:01 Results, noise, the listening condition, no

108:02 earplug versus single-sided versus CAE-yellow

108:03 versus CAE-green versus E-A-R Classic foam,

108:04 and then you have the average errors off to

108:05 the right, right?

108:06 A. Right.

108:07 - 108:10 Babeu, Lorraine 2020-03-10 0:20

108:07 Q. Okay. And so we see the yellow

108:08 end's got about 27 as its average error, and

108:09 the green end's got about 25; is that right?

108:10 A. Correct, uh-huh.

108:11 - 108:15 Babeu, Lorraine 2020-03-10 0:07

108:11 Q. Okay. And those are -- if you

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 208 of 345
108:12 will, those were the observations from your

108:13 study, like the -- these are the calculations

108:14 and the data that you put forward, right?

108:15 A. Uh-huh, right.

108:16 - 108:25 Babeu, Lorraine 2020-03-10 1:31

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

108:17 summarized and said, "Overall, the

108:18 level-dependent earplugs performed better

108:19 than the standard earplug."

108:20 Right?

108:21 A. Right.

108:22 Q. And you said with background

108:23 noise, overall performance better with all

108:24 earplugs, right?

108:25 A. Right.

109:02 - 109:06 Babeu, Lorraine 2020-03-10 1:30

109:02 You did another study that I

109:03 believe you presented also at the NHCA on

109:04 DPOEs; is that right?

109:05 A. Yeah, uh-huh.

109:06 Q. Okay. Let's see, 1560. I'm

109:07 - 109:09 Babeu, Lorraine 2020-03-10 0:11

109:07 passing you, ma'am, a copy of P1560.

109:08 Oh, I should -- you know,

109:09 before we start talking about a new study,

109:10 - 109:14 Babeu, Lorraine 2020-03-10 0:10

109:10 the last study that we looked at, that

109:11 localization study, apart from the

109:12 presentation at NHCA, did you publish that in

109:13 a journal?

109:14 A. No.

109:25 - 110:03 Babeu, Lorraine 2020-03-10 0:08

109:25 Q. Okay. And to your knowledge,

110:01 did any of the other authors of that study

110:02 with you ever publish it?

110:03 A. No, not that I'm aware.

110:04 - 110:13 Babeu, Lorraine 2020-03-10 0:11

110:04 Q. Right.

110:05 A. No.

110:06 Q. Before coming in today, did you

110:07 just do like a Google Scholar search to see

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 209 of 345
110:08 whether it had been published or --

110:09 A. No, I didn't know you could do

110:10 that.

110:11 Q. We gave it a look. We didn't

110:12 see it.

110:13 A. Okay. All right.

110:14 - 110:16 Babeu, Lorraine 2020-03-10 0:04

110:14 Q. Yeah. But you're not aware of

110:15 it having been published in peer review?

110:16 A. No, right.

110:17 - 111:07 Babeu, Lorraine 2020-03-10 1:19

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

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

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

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

110:21 that this is a study that you were actually

110:22 involved in, if you could.

110:23 A. Yeah.

110:24 Q. You've read enough to satisfy

110:25 yourself, ma'am?

111:01 A. Yeah. Yeah, I remember this

111:02 one.

111:03 Q. Okay. And I used a phrase,

111:04 DPOE.

111:05 Is that distortion product

111:06 otoacoustic emissions?

111:07 A. Correct.

111:08 - 111:15 Babeu, Lorraine 2020-03-10 0:22

111:08 Q. Something you had actually done

111:09 some research with in connection with your

111:10 Ph.D.?

111:11 A. I think so. I don't remember

111:12 my dissertation. Oh, my God, I can't believe

111:13 that. Okay. I'm -- I'm not -- I don't

111:14 remember. Jesus. Oh, God.

111:15 Q. That's okay, ma'am. It's --

111:16 - 111:19 Babeu, Lorraine 2020-03-10 0:05

111:16 A. My memory's shot.

111:17 Q. We're coming to you many years

111:18 after the fact.

111:19 A. Yeah. A lot of years.

112:03 - 112:07 Babeu, Lorraine 2020-03-10 0:14

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 210 of 345
112:03 Q. Distortion product otoacoustic

112:04 emissions is a tool commonly used in newborns

112:05 to measure whether they have hearing, because

112:06 they can't do threshold testing, right?

112:07 A. Right. On newborns, correct.

112:08 - 112:12 Babeu, Lorraine 2020-03-10 0:05

112:08 Q. And then it's been explored, I

112:09 guess, in other research avenues --

112:10 A. Right.

112:11 Q. -- since then, fair?

112:12 A. Right, uh-huh.

112:15 - 112:20 Babeu, Lorraine 2020-03-10 0:18

112:15 Q. And so you conducted a study

112:16 looking at distortion product otoacoustic

112:17 emissions following -- or with use of

112:18 different hearing protection devices before

112:19 and after being on the range, fair?

112:20 A. Right.

112:21 - 112:21 Babeu, Lorraine 2020-03-10 0:02

112:21 Q. Okay. And if we could, let's

112:22 - 113:20 Babeu, Lorraine 2020-03-10 1:42

112:22 just turn a few pages. Actually, stop at .5

112:23 if we could.

112:24 There's a chart in the middle

112:25 here. It says "octave band attenuation."

113:01 Do you see that?

113:02 A. Right. Right.

113:03 Q. We see "octave band

113:04 attenuation." We looked at a chart earlier

113:05 from that sell sheet --

113:06 A. Right.

113:07 Q. -- on the Combat Arms. You

113:08 remember that?

113:09 A. Correct, uh-huh.

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

113:11 "Octave band attenuation of the hearing

113:12 protectors used in the studies -- study

113:13 values provided by manufacturer, Aearo

113:14 Company, Inc."

113:15 Do you see that?

113:16 A. Yes.

113:17 Q. Okay. Is that consistent with

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

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 211 of 345
113:19 company for information on attenuation data?

113:20 A. Right, uh-huh.

114:03 - 115:07 Babeu, Lorraine 2020-03-10 1:10

114:03 Q. Okay. Just some general

114:04 questions on DPOEs.

114:05 How did you account for

114:06 background noise when you did the study; do

114:07 you remember?

114:08 A. What do you mean, "how did you

114:09 account for" it?

114:10 Q. How did you, you know,

114:11 calibrate the machine you were using to

114:12 measure DPOEs to adjust for background noise?

114:13 A. Still not tracking.

114:14 Q. Okay. To your understanding,

114:15 ma'am, are DPOE measurements sensitive to

114:16 background noise?

114:17 A. Okay. So once you insert the

114:18 probe in the ear canal, it's measuring what's

114:19 in the ear canal. So unless there is

114:20 extensive, like -- the most I would have done

114:21 would have done it in the booth. Okay? And

114:22 we had a booth out -- for this particular

114:23 test, we had a booth on site.

114:24 Q. When you say "on site," like

114:25 what does that mean? Is that like -- you

115:01 were -- it was -- there was a range?

115:02 A. We were at a range, right.

115:03 Q. And you had a booth off to the

115:04 side?

115:05 A. Yeah, there was a building

115:06 there, and we had a booth moved to that

115:07 building.

115:13 - 115:16 Babeu, Lorraine 2020-03-10 0:04

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

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

115:15 this one?

115:16 A. Yeah, something like that --

115:17 - 115:20 Babeu, Lorraine 2020-03-10 0:03

115:17 Q. Okay.

115:18 A. -- I think it said.

115:19 Q. And then --

115:20 A. Yeah, nine.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 212 of 345
115:21 - 116:01 Babeu, Lorraine 2020-03-10 0:09

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

115:22 test before firing and then after firing?

115:23 A. Right.

115:24 Q. But you tested in consecutive

115:25 days, right?

116:01 A. Right.

116:02 - 116:10 Babeu, Lorraine 2020-03-10 0:24

116:02 Q. Okay. So a person might be --

116:03 you might test somebody with the green end

116:04 day one, two, three, then test the yellow end

116:05 day four, five, six, then test another

116:06 headset that's in those graphs. I think the

116:07 Peltor ComTac was one?

116:08 A. Yeah. For that, I would really

116:09 have to dig into exactly how I did it,

116:10 because that kind of stuff matters.

116:15 - 116:24 Babeu, Lorraine 2020-03-10 0:15

116:15 Q. Yeah. As I understand it,

116:16 ma'am, there were three hearing protectors

116:17 that were being studied?

116:18 A. Right.

116:19 Q. There was an open end, there

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

116:21 the ComTac.

116:22 A. Yeah.

116:23 Q. Right?

116:24 A. Peltor, uh-huh.

120:21 - 120:24 Babeu, Lorraine 2020-03-10 0:10

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

120:22 the discussion, and then maybe we can further

120:23 elaborate on this.

120:24 A. Okay.

121:22 - 122:10 Babeu, Lorraine 2020-03-10 0:25

121:22 It says, "As expected and

121:23 consistent with the literature, in most

121:24 instances the DPOAE amplitude values were

121:25 higher before firing and lower after firing."

122:01 Did I read that correctly?

122:02 A. Right. Uh-huh.

122:03 Q. And that means there was a

122:04 decline as measured by these DPOEs after

122:05 firing?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 213 of 345
122:06 A. Correct.

122:07 Q. Okay. DPOEs are measuring, you

122:08 know, hair cell function in the inner ear; is

122:09 that fair?

122:10 A. Yeah, okay.

122:17 - 123:08 Babeu, Lorraine 2020-03-10 0:29

122:17 says, "However, it's important to note there

122:18 appeared to be a trend between DPOE amplitude

122:19 for level-dependent and non-level-dependent

122:20 hearing protection."

122:21 Did I read that correctly?

122:22 A. Yes.

122:23 Q. And then you note, I guess --

122:24 it's the bottom third of the paragraph. It

122:25 says, "There was initial concern that these

123:01 findings were a reflection of the averaging

123:02 of results."

123:03 Do you see that?

123:04 A. Yeah.

123:05 Q. Because what you did, I guess,

123:06 was you averaged before and after across your

123:07 full subject population --

123:08 A. Right.

123:09 - 123:10 Babeu, Lorraine 2020-03-10 0:00

123:09 Q. -- right?

123:10 A. Uh-huh.

123:11 - 123:14 Babeu, Lorraine 2020-03-10 0:05

123:11 Q. But then you said when you

123:12 looked at the individual results, you saw the

123:13 same pattern.

123:14 A. Right.

124:08 - 125:17 Babeu, Lorraine 2020-03-10 1:12

124:08 Q. "The amplitude values for the

124:09 level-dependent Combat Arms Earplug and

124:10 ComTac noise muffs for DPOAE frequencies 500

124:11 to 2000 hertz were stronger, higher, before

124:12 weapons fire and lower after weapons fire."

124:13 Let's pause. Okay?

124:14 That's an indication to you of

124:15 what?

124:16 A. At some point what you would

124:17 normally -- what would normally be inferred

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 214 of 345
124:18 from that is that there was some evidence of

124:19 decreased ability by the ear.

124:20 Q. Okay. And then you continue in

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

124:22 indication that although hearing protection

124:23 was in place, the outer hair cells were

124:24 affected in some way by the exposure to the

124:25 impulse noise."

125:01 Did I read that correctly?

125:02 A. Right.

125:03 Q. And then you have a summary at

125:04 the bottom.

125:05 Do you see that?

125:06 Oh, I should read that last

125:07 sentence. I'm sorry.

125:08 "At this juncture" -- you

125:09 continued in the discussion. "At this

125:10 juncture, this is speculation. It is not

125:11 clear what the pattern is indicative of, but

125:12 it is certainly was worth noting."

125:13 Right?

125:14 A. Uh-huh.

125:15 Q. Correct?

125:16 A. Yes.

125:17 Q. Okay. And then the summary,

125:18 - 125:23 Babeu, Lorraine 2020-03-10 0:13

125:18 you said, "The question of whether frequency

125:19 response which provides less attenuation in

125:20 the low frequencies affects the amplitude

125:21 values of the DPOAE during small arms weapons

125:22 fire, according to these results, were not

125:23 statistically significant."

125:24 - 125:25 Babeu, Lorraine 2020-03-10 0:01

125:24 Do you see that?

125:25 A. Yes.

126:01 - 126:06 Babeu, Lorraine 2020-03-10 0:11

126:01 Q. "However, there was a trend

126:02 that appears to indicate that there is an

126:03 effect of the level-dependent hearing

126:04 protection on DPOE amplitude. This trend

126:05 warrants continued study."

126:06 A. Correct. Uh-huh.

141:13 - 141:23 Babeu, Lorraine 2020-03-10 0:28

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 215 of 345
141:13 Passing you, ma'am, P1557.

141:14 A. Okay.

141:15 Q. So this is about a month later.

141:16 "Decibels in the desert." Clever name.

141:17 DoubleTree Hotel in Tucson, Arizona.

141:18 Do you remember going out to a

141:19 conference in Tucson, the 30th Annual NHCA

141:20 Hearing Conservation Conference?

141:21 A. Right, uh-huh.

141:22 Q. Do you remember going to that?

141:23 A. Yeah, uh-huh.

141:25 - 142:05 Babeu, Lorraine 2020-03-10 0:26

141:25 And if we go to .21, we see

142:01 there's a heading, "Observation of the DPOAE

142:02 after exposure to small arms fire."

142:03 Do you see that?

142:04 A. Yeah. Okay.

142:05 Q. And that's your name?

142:06 - 142:06 Babeu, Lorraine 2020-03-10 0:00

142:06 A. Yeah.

142:12 - 143:07 Babeu, Lorraine 2020-03-10 1:56

142:12 Q. Okay. And then it talks about Re: [142:12 to 143:07] OVERRULED

142:13 a description of your study. And as you get Pltf Obj Incomplete

142:14 to the end, you see discussion and designation, 403 prejudicial

142:15 conclusions from your study? and misleading and prohibited

142:16 A. Uh-huh. by Touhy (see page 136-137)

142:17 Q. Do you see that?

142:18 A. Uh-huh, yes.

142:19 Q. Okay. And it says, "There were

142:20 no significant main effects for the type of

142:21 hearing protection and before and after

142:22 firing of DPOAE amplitude."

142:23 Do you see that?

142:24 A. Okay.

142:25 Q. Do you recall when we were

143:01 looking at your paper before Mr. Berger's

143:02 comments, your findings about the declines in

143:03 DPOAE amplitude?

143:04 A. Right, uh-huh.

143:05 Q. Do you recall Mr. Berger

143:06 counseling you to take out those conclusions?

143:07 A. I don't recall that. You know,

143:08 - 144:11 Babeu, Lorraine 2020-03-10 1:11

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 216 of 345
143:08 that -- you'd have to show me where he said Re: [143:10 to 143:16] OVERRULED

143:09 that. Def Obj Relevance (401, 402);

143:10 Q. Yeah, I don't think I can do Prejudice (403)

143:11 that, unfortunately.

143:12 A. Okay.

143:13 Q. Okay. By --

143:14 A. Uh-huh.

143:15 Q. By the guidance of counsel.

143:16 A. Right.

143:17 Q. Fair to say, though, you don't

143:18 see that characterized in your discussion

143:19 here?

143:20 A. Right, uh-huh.

143:21 Q. That there was a decline in

143:22 DPOAE amplitude from the before and after

143:23 firing with the Combat Arms Earplugs?

143:24 A. Right.

143:25 Q. You don't see that in the

144:01 presentation abstract, fair?

144:02 A. Right.

144:03 Do you have the presentation?

144:04 Q. We do. We have the PowerPoint

144:05 as well.

144:06 A. Uh-huh.

144:07 Q. With regard to the abstract

144:08 that we're looking at right now, we'd agree

144:09 that we don't see the discussion about the

144:10 decline --

144:11 A. Right. Right.

144:16 - 144:16 Babeu, Lorraine 2020-03-10 0:19

144:16 Q. Okay. Passing you P124.

145:02 - 145:12 Babeu, Lorraine 2020-03-10 0:14

145:02 Q. "Field study. Study of the

145:03 effects of encapsulation on the performance

145:04 of soldiers during various tasks."

145:05 Were there broader studies

145:06 going on at this time?

145:07 A. Right. Uh-huh.

145:08 Q. Was this part of that future

145:09 force --

145:10 A. Right.

145:11 Q. -- warrior study?

145:12 A. Right. Uh-huh.

146:03 - 146:09 Babeu, Lorraine 2020-03-10 0:07

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 217 of 345
146:03 Q. And again, it's been a long

146:04 time, ma'am. I don't want you to infer what

146:05 must have been done versus what you recall

146:06 happening.

146:07 A. Okay.

146:08 Q. Okay?

146:09 A. Uh-huh.

146:10 - 147:14 Babeu, Lorraine 2020-03-10 1:55

146:10 Q. But then there's a description

146:11 specifically about your DPOE study on the .9.

146:12 It says "method."

146:13 Do you see those?

146:14 A. Yes.

146:15 Q. "Infantry soldiers over the

146:16 course of nine days wore the Combat Arms

146:17 yellow and green side and the Peltor ComTac

146:18 earmuff while firing the M4 rifle."

146:19 Right?

146:20 A. Uh-huh.

146:21 Q. "Each day they had pre and

146:22 post-distortion product otoacoustic

146:23 emissions, DPOAE, measurements recorded

146:24 during the weapons firing task."

146:25 Do you see that?

147:01 A. Right.

147:02 Q. And it says, "Soldiers fired 54

147:03 each day. Noise level at the ear was as

147:04 quoted."

147:05 A. Uh-huh.

147:06 Q. And then you talk about the

147:07 folks who were involved in this.

147:08 14 infantry soldiers from

147:09 Fort Wainwright, right?

147:10 A. Right.

147:11 Q. Started with 14. Three didn't

147:12 meet the hearing sensitivity criteria for

147:13 inclusion.

147:14 A. Right.

147:15 - 147:15 Babeu, Lorraine 2020-03-10 0:00

147:15 Q. Right?

147:16 - 148:01 Babeu, Lorraine 2020-03-10 0:18

147:16 What were the hearing

147:17 sensitivity inclusion criteria?

147:18 A. I'd have to go back and look,

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 218 of 345
147:19 but, you know, most likely would have -- most

147:20 likely it would have been they had to have

147:21 normal hearing.

147:22 Q. Okay.

147:23 A. From 250 to 8K.

147:24 Q. It says, "Two were injured

147:25 during the course of the study."

148:01 A. Right.

148:02 - 148:19 Babeu, Lorraine 2020-03-10 1:03

148:02 Q. And do you know whether any of

148:03 that was noise-related, not noise-related?

148:04 A. One was. We had a soldier who

148:05 had sudden hearing loss or -- we don't know

148:06 what to attribute it to. Okay? Because when

148:07 I ran an after study on him, he had

148:08 significant hearing loss.

148:09 I sent him down to Walter Reed

148:10 to get reevaluated because we were doing --

148:11 we were in the field, so I wanted to make

148:12 sure that these thresholds that I was getting

148:13 in the field were actually what was going on.

148:14 So I sent him to Walter Reed.

148:15 Walter Reed did the test, and

148:16 they confirmed that, yes, the hearing loss is

148:17 there. So he could not participate in the

148:18 hearing part of the study anymore because I

148:19 didn't know what was going on.

150:23 - 151:11 Babeu, Lorraine 2020-03-10 1:30

150:23 Q. And you didn't see when you

150:24 reviewed this, ma'am, obviously, that you

150:25 observed what would be expected, a decline in

151:01 DPOAEs from before and after firing, fair?

151:02 MR. FIELDS: Objection. Form.

151:03 THE WITNESS: Okay. So when we

151:04 talk about significant, statistical

151:05 significance. So in the research,

151:06 when you were using that word, that's

151:07 what that meant.

151:08 It doesn't mean that there

151:09 wasn't a change. It just means the

151:10 change didn't meet statistical

151:11 significance.

151:12 - 151:25 Babeu, Lorraine 2020-03-10 0:20

151:12 QUESTIONS BY MR. BUCHANAN:

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 219 of 345
151:13 Q. I understand.

151:14 Researchers, obviously they do

151:15 statistical calculations to try and satisfy

151:16 themselves to a certain level of confidence

151:17 in the connection between things.

151:18 In your paper, you identify the

151:19 trend --

151:20 A. Right.

151:21 Q. -- and you also talked about

151:22 a -- the decline in DPOE amplitudes --

151:23 A. Right.

151:24 Q. -- from before and after.

151:25 A. Right.

171:04 - 171:08 Babeu, Lorraine 2020-03-10 0:12

171:04 Fair, ma'am, based on your

171:05 review of at least Mr. Berger's call logs,

171:06 that you reached out over the years when you

171:07 had questions about things like NRRs, right?

171:08 A. Right. Uh-huh.

174:01 - 174:18 Babeu, Lorraine 2020-03-10 0:28

174:01 Q. Did he ever tell you that in

174:02 order to get good results you had to fold

174:03 back the flanges on everybody who was using

174:04 it?

174:05 MR. FIELDS: Objection to form.

174:06 THE WITNESS: I don't think so.

174:07 QUESTIONS BY MR. BUCHANAN:

174:08 Q. And that's not the way you

174:09 tested it in people, right?

174:10 A. I inserted it the way we

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

174:12 special thing.

174:13 Q. Right.

174:14 The way we saw those pictures

174:15 earlier today --

174:16 A. Right.

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

174:18 A. Right.

179:22 - 181:17 Babeu, Lorraine 2020-03-10 2:43

179:22 You indicated that you have a

179:23 Ph.D. from the University of Florida?

179:24 A. Correct.

179:25 Q. And you received that Ph.D. in

180:01 2001?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 220 of 345
180:02 A. Correct.

180:03 Q. What was your topic or the

180:04 subject matter in which you received your

180:05 Ph.D.?

180:06 A. Audiology.

180:07 Q. You also have a bachelor's

180:08 degree from Norfolk State University?

180:09 A. Correct.

180:10 Q. When did you receive your

180:11 bachelor's degree from Norfolk State?

180:12 A. '81. Let's go there. Let's

180:13 bring it all out.

180:14 Q. All right. And when you

180:15 received your bachelor's degree from Norfolk

180:16 State in 1981, what was your major?

180:17 A. It was speech pathology,

180:18 audiology.

180:19 Q. You also have a master's degree

180:20 from Florida State University?

180:21 A. Yep.

180:22 Q. When did you receive your

180:23 master's degree from Florida State

180:24 University?

180:25 A. '88.

181:01 Q. And when you received your

181:02 master's degree from Florida State University

181:03 in 1988, what was your major or specialty?

181:04 A. Audiology.

181:05 Q. I seem to recall in some of the

181:06 materials there are some initials behind your

181:07 name besides Ph.D., and that is CCC-A?

181:08 A. Okay.

181:09 Q. And that is a certificate in

181:10 clinical competency for audiology?

181:11 A. Correct.

181:12 Q. And when did you receive your

181:13 CCC-A?

181:14 A. In '89.

181:15 Q. You indicated that you retired

181:16 from active duty in 2011?

181:17 A. Correct.

182:04 - 182:08 Babeu, Lorraine 2020-03-10 0:11

182:04 Q. You testified earlier that the

182:05 only time period in which you would have

182:06 performed research on the Combat Arms Earplug

182:07 version 2 was in the 2001-2005 time period?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 221 of 345
182:08 A. Correct.

189:11 - 189:25 Babeu, Lorraine 2020-03-10 1:32

189:11 Q. Do you recall when you first

189:12 became aware of the Combat Arms Earplug

189:13 version 2?

189:14 A. When I first became aware of

189:15 the -- when I got to the lab.

189:16 Q. Okay. And you got to the lab

189:17 in 2001?

189:18 A. Correct.

189:19 Q. And do you recall how you

189:20 became aware of the Combat Arms Earplug

189:21 version 2 when you first got to the lab in

189:22 2001?

189:23 A. The other investigators there

189:24 were talking about it. Doug was talking

189:25 about it. We talked about it.

194:07 - 195:04 Babeu, Lorraine 2020-03-10 1:10

194:07 Q. As part of your work at the Re: [194:07 to 195:04] OVERRULED

194:08 Army Research Laboratory or in the US Pltf Obj 402; 403

194:09 military in general, have you ever worn the

194:10 Combat Arms Earplug version 2?

194:11 A. Have I worn them? Yep. Yes.

194:12 Q. Have you ever worn them in any

194:13 type of combat training?

194:14 A. No.

194:15 Q. What were the facts and

194:16 circumstances in which you were wearing the

194:17 Combat Arms Earplug version 2?

194:18 A. Just personally trying them on,

194:19 seeing how they worked, you know. I'm not a

194:20 shooter, so I wasn't really using the yellow

194:21 side. I'd try on the yellow side just to see

194:22 how it feels, but I would use the green side

194:23 if I were going to a concert or something

194:24 like that.

194:25 Q. So with respect to the Combat

195:01 Arms Earplug, the green end, did you wear

195:02 that earplug in instances that involved

195:03 something other than the military?

195:04 A. Yeah. Going to a concert.

195:09 - 195:15 Babeu, Lorraine 2020-03-10 0:24

195:09 Q. Do you know roughly in what Re: [195:09 to 195:15] OVERRULED

195:10 time period you were using the Combat Arms Pltf Obj 402; 403

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 222 of 345
195:11 Earplug version 2 for your own use?

195:12 A. It would have been the

195:13 2001-2005. I mean, the thing is is that it

195:14 was just accessible. So once I left, it

195:15 wasn't that accessible.

195:23 - 196:19 Babeu, Lorraine 2020-03-10 1:20

195:23 Q. You indicated earlier that Re: [196:11 to 196:19] OVERRULED

195:24 you're not a shooter. Were there any Def Obj Relevance (401, 402)

195:25 circumstances where you wore the yellow end

196:01 of the Combat Arms Earplug on the firing

196:02 range?

196:03 A. No, huh-uh.

196:04 Q. Do you know on how many

196:05 occasions approximately you've worn the green

196:06 end of the Combat Arms Earplug?

196:07 A. Outside of -- outside of work?

196:08 Q. Outside of work.

196:09 A. Probably at the best, one or

196:10 two, you know. Just --

196:11 Q. Do you recall how many times

196:12 you've worn the Combat Arms Earplug version 2

196:13 as part of work when it's a noisy

196:14 environment?

196:15 A. I don't. I mean, I don't

196:16 recall because, again, if I were using it and

196:17 I'm in the research, I'm not necessarily

196:18 downrange where the noise is. So I don't

196:19 think I can answer that question really well.

197:21 - 197:24 Babeu, Lorraine 2020-03-10 0:08

197:21 Q. When you wore the green end of Re: [197:21 to 197:24] OVERRULED

197:22 the Combat Arms Earplug to concerts, did it Pltf Obj 402; 403; Expert

197:23 provide the level of sound attenuation you opinion from non-expert

197:24 were expecting? witness; Beyond the scope of

Touhy Designation

198:02 - 198:07 Babeu, Lorraine 2020-03-10 0:14

198:02 THE WITNESS: Okay. Yes, in Re: [198:02 to 198:07] OVERRULED

198:03 the sense that when I left the Pltf Obj 402; 403; Expert

198:04 concert, my ears weren't ringing and opinion from non-expert

198:05 they didn't feel full. So for me, as witness; Beyond the scope of

198:06 an audiologist, that tells you, okay, Touhy Designation

198:07 the earplugs were working.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 223 of 345
198:21 - 198:25 Babeu, Lorraine 2020-03-10 0:15

198:21 Q. Okay. And when you were Re: [198:21 to 198:25] OVERRULED

198:22 wearing the Combat Arms Earplug version 2, Pltf Obj 402; 403; Expert

198:23 did you have to roll back the flanges in opinion from non-expert

198:24 order to obtain an acceptable fit? witness; Beyond the scope of

198:25 A. No, huh-uh. Touhy Designation

199:04 - 199:09 Babeu, Lorraine 2020-03-10 1:50

199:04 Q. Were there any instances where Re: [199:04 to 199:09] OVERRULED

199:05 you were wearing the Combat Arms Earplug, Pltf Obj 402; 403; Expert

199:06 either in your work at the laboratory or opinion from non-expert

199:07 outside of work, where you were not able to witness; Beyond the scope of

199:08 obtain an acceptable fit? Touhy Designation

199:09 A. No.

204:01 - 204:05 Babeu, Lorraine 2020-03-10 0:09

204:01 Q. Okay. So let's take a look at Re: [204:01 to 204:05]

204:02 the document that's been marked as Exhibit Pltf Obj 602; 802; Lack of

204:03 Number 1 to your deposition. foundation; 805; Expert

204:04 Do you see that? Opinion without foundation or

204:05 A. Uh-huh. expert sponsor of the

document; 403

204:21 - 205:16 Babeu, Lorraine 2020-03-10 1:49

204:21 Q. The first sentence talks about Re: [204:21 to 205:16]

204:22 the small -- it says, "The Small Arms Weapons Pltf Obj 602; 802; Lack of

204:23 Branch of the Ordnance Center and School was foundation; 805; Expert

204:24 experiencing problems using the Combat Arms Opinion without foundation or

204:25 Earplug." expert sponsor of the

205:01 Do you see that? document; 403

205:02 A. Yes.

205:03 Q. Are you familiar with the Small

205:04 Arms Weapons Branch of the Ordnance Center

205:05 and School?

205:06 A. I believe I am.

205:07 Q. Okay. Do you know where that

205:08 particular branch or school is located?

205:09 A. At Aberdeen.

205:10 Q. Okay. It says, "When they used

205:11 the earplug in the small arms weapon -- small

205:12 arms weapons firing room, the users felt the

205:13 earplug was not providing adequate

205:14 protection."

205:15 Do you see that?

205:16 A. Yeah.

206:22 - 208:09 Babeu, Lorraine 2020-03-10 1:24

SUSTAINED - 701 (Improper expert 

testimony from lay witness); 602; 

802

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 224 of 345
206:22 Q. It goes on to say, "If the Re: [206:22 to 208:09]

206:23 individual is exposed to impulse noise such Pltf Obj 602; 802; Lack of

206:24 as that of weapons fire, the yellow side of foundation; 805; Expert

206:25 the earplug provides protection during the Opinion without foundation or

207:01 firing, but when noise levels are low, there expert sponsor of the

207:02 is limited attenuation, which allows for document; 403

207:03 voice communication."

207:04 Did I read that correctly?

207:05 A. Yes.

207:06 Q. And is that consistent with

207:07 your understanding on the operation of the

207:08 yellow end of the Combat Arms Earplug?

207:09 A. Yes.

207:10 Q. "The green side of the earplug

207:11 is similar to standard earplugs and is

207:12 designed to protect soldiers from

207:13 continuous-type noise exposures -- noise

207:14 exposure such as that of an engine running in

207:15 the motor pool."

207:16 Did I read that correctly?

207:17 A. Correct, uh-huh.

207:18 Q. And was that also consistent

207:19 with your understanding of how the green side

207:20 performed?

207:21 A. Correct.

207:22 Q. It says, "The auditory research

207:23 team, Dr. Letowski, Lieutenant Colonel Babeu,

207:24 Mary Binseel, and Francis Breitenbach from

207:25 HRED evaluated the problem, conducted noise

208:01 measurements."

208:02 Do you see that?

208:03 A. Uh-huh.

208:04 Q. You do?

208:05 A. Yes.

208:06 Q. Okay. Do you recall being

208:07 brought in by someone to evaluate this

208:08 problem at the small arms weapons branch?

208:09 A. Yes.

208:13 - 210:15 Babeu, Lorraine 2020-03-10 2:18

208:13 Q. And just for some acronyms Re: [208:13 to 210:15]

208:14 here, we have the HRED. Pltf Obj 602; 802; Lack of

208:15 A. Right. foundation; 805; Expert

208:16 Q. That stands for Human Research Opinion without foundation or

208:17 and Engineering Directorate? expert sponsor of the

208:18 A. Correct, uh-huh. document; 403

208:19 Q. What was the role of the

SUSTAINED - 701 (Improper expert 

testimony from lay witness); 602; 

803. If Babeu performed a study, 

she may talk about that study from 

personal knowledge, as a lay 

witness (i.e., describe the study 

and the conclusions). However, 

she may not apply the conclusions 

of the study to the facts of this 

case.

SUSTAINED - 701 (Improper expert 

testimony from lay witness); 602; 

803. If Babeu performed a study, 

she may talk about that study from 

personal knowledge, as a lay 

witness (i.e., describe the study 

and the conclusions). However, 

she may not apply the conclusions 

of the study to the facts of this 

case.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 225 of 345
208:20 auditory research team from HRED at this

208:21 time?

208:22 A. For this?

208:23 Q. Yes.

208:24 A. Okay. So based on this,

208:25 it's -- they've got a complaint about using

209:01 the Combat Arms Earplug. And then we went in

209:02 and we looked, we did some noise

209:03 measurements, and we found that -- well, the

209:04 noise measurements didn't tell us that, but

209:05 it was that the room -- you can't use the

209:06 yellow side of the Combat Arms Earplug in

209:07 indoors. It has to be an outdoor use.

209:08 Q. And do you recall being brought

209:09 in to assist the small arms weapon branch in

209:10 the problems that they were experiencing in

209:11 the small arms weapons firing room?

209:12 A. I remember Tom and I went over,

209:13 and we were talking to the guys -- this is

209:14 what I remember. I went -- we were talking

209:15 to the guys that were doing testing on small

209:16 arms, and it's -- it's a -- like a padded

209:17 room, but they're inside the padded room.

209:18 They're not outside of it. They're inside

209:19 the padded room. And then they're testing

209:20 different properties of the weapon.

209:21 So they're firing in there, and

209:22 when they're firing, the whole room goes

209:23 reverberant.

209:24 Q. It says in this document,

209:25 continuing, "It was recommended that due to

210:01 the highly reverberant firing environment,

210:02 that soldiers should use the green end of the

210:03 earplug rather than the yellow side."

210:04 Do you see that?

210:05 A. Yep.

210:06 Q. And this document uses a term

210:07 that you also just used, which is

210:08 "reverberant."

210:09 A. Uh-huh.

210:10 Q. What does it mean to say that

210:11 the environment is reverberant?

210:12 A. The sound is bouncing off the

210:13 walls, and it kind of defeats the mechanism

210:14 for the yellow side of the Combat Arms

210:15 Earplug.

SUSTAINED - 701 (Improper expert 

testimony from lay witness); 602; 

803. If Babeu performed a study, 

she may talk about that study from 

personal knowledge, as a lay 

witness (i.e., describe the study 

and the conclusions). However, 

she may not apply the conclusions 

of the study to the facts of this 

case.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 226 of 345
210:19 - 210:24 Babeu, Lorraine 2020-03-10 0:11

210:19 Q. And so how does the firing Re: [210:19 to 210:24]

210:20 environment affect the conclusion regarding Pltf Obj 602; 802; Lack of

210:21 which end should be inserted during training? foundation; 805; Expert

210:22 A. How does -- Opinion without foundation or

210:23 Q. The firing environment, inside expert sponsor of the

210:24 versus outside? document; 403

211:03 - 211:22 Babeu, Lorraine 2020-03-10 1:01

211:03 THE WITNESS: If you -- what Re: [211:03 to 211:22]

211:04 happened if they used the yellow side Pltf Obj 602; 802; Lack of

211:05 inside? That's what happens. The foundation; 805; Expert

211:06 yellow -- the mechanism that makes the Opinion without foundation or

211:07 yellow side of the Combat Arms expert sponsor of the document

211:08 Earplug, the physics, just doesn't

211:09 work anymore. Okay?

211:10 And so you have to use it only

211:11 outside where it's not subject to --

211:12 like you couldn't use that earplug in

211:13 a room like this and fire a weapon.

211:14 QUESTIONS BY MR. FIELDS:

211:15 Q. Now, it uses the term "small

211:16 arms."

211:17 For someone who is not in the

211:18 military, what's small arms?

211:19 A. Pistol, M16 rifle, M14 rifle.

211:20 There's debate about the machine gun, but --

211:21 Q. So it's not just handguns?

211:22 A. Right, uh-huh.

213:06 - 213:10 Babeu, Lorraine 2020-03-10 0:14

213:06 Q. Why did your team decide that Re: [213:06 to 213:10]

213:07 for indoor gun range such as the one at the Pltf Obj 602; 802; Lack of

213:08 small weapons -- small arms weapons branch foundation; 805; Expert

213:09 that the soldiers should use the green end Opinion without foundation or

213:10 instead of the yellow end? expert sponsor of the document

213:13 - 214:01 Babeu, Lorraine 2020-03-10 0:26

213:13 THE WITNESS: Because of the Re: [213:13 to 214:01]

213:14 reverberant room. Pltf Obj 602; 802; Lack of

213:15 QUESTIONS BY MR. FIELDS: foundation; 805; Expert

213:16 Q. And would that be true for any Opinion without foundation or

213:17 indoor firing range -- expert sponsor of the document

213:18 A. Yeah.

213:19 Q. -- or would you have to

213:20 evaluate it on a case-by-case basis?

213:21 A. No, huh-uh, no. That's -- just

SUSTAINED - 701 (Improper expert 

testimony from lay witness); 602; 

803. If Babeu performed a study, 

she may talk about that study from 

personal knowledge, as a lay 

witness (i.e., describe the study 

and the conclusions). However, 

she may not apply the conclusions 

of the study to the facts of this 

case.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 227 of 345
213:22 as an audiologist, knowing what I know about

213:23 the Combat Arms Earplug and what it's

213:24 supposed to do and the mechanisms of how it's

213:25 supposed to work, no, you do not fire using

214:01 the yellow side in, in indoors.

214:08 - 214:21 Babeu, Lorraine 2020-03-10 1:30

214:08 Q. The next line says, "The Re: [214:08 to 214:15]

214:09 soldiers were instructed on how to insert the Pltf Obj 602; 802; Lack of

214:10 earplug. The earplug requires a deep fit, foundation; 805; Expert

214:11 which is not something that would necessarily Opinion without foundation or

214:12 be intuitive for soldiers accustomed to using expert sponsor of the

214:13 other types of earplugs." document; 403

214:14 Do you see that?

214:15 A. Uh-huh.

214:16 Q. Was it your view that the

214:17 Combat Arms Earplug version 2 required a deep

214:18 fit, and that was different than other types

214:19 of earplugs that had been used by the

214:20 military?

214:21 A. Yes.

214:25 - 216:15 Babeu, Lorraine 2020-03-10 2:40

214:25 Q. And as part of your work on the Re: [216:03 to 216:15]

215:01 auditory research team, did you provide Pltf Obj 602; 802; Lack of

215:02 instructions to the soldiers at the small foundation; 805; Expert

215:03 arms weapons branch about how to properly Opinion without foundation or

215:04 insert the Combat Arms Earplug version 2 into expert sponsor of the

215:05 their ears? document; 403

215:06 A. For what?

215:07 Q. Yeah. Let me ask the question

215:08 again, which is, as part of your work back in

215:09 the early 2000s, did you provide the soldiers

215:10 at the small arms weapons branch with

215:11 instructions on how to properly insert the

215:12 Combat Arms Earplug version 2?

215:13 A. Okay. Yeah. This -- yeah.

215:14 Yeah.

215:15 Q. Okay. And with respect to the

215:16 instructions that you provided to the

215:17 soldiers, did you advise the soldiers that

215:18 they would need to roll back the flanges in

215:19 any way?

215:20 A. No, huh-uh.

215:21 Q. With respect to the

215:22 instructions that you gave to the soldiers at

215:23 the small arms weapons branch, was that

SUSTAINED - 701 (Improper expert 

testimony from lay witness); 602; 

803. If Babeu performed a study, 

she may talk about that study from 

personal knowledge, as a lay 

witness (i.e., describe the study 

and the conclusions). However, 

she may not apply the conclusions 

of the study to the facts of this 

case.

SUSTAINED - 701 (Improper expert 

testimony from lay witness); 602; 

803. If Babeu performed a study, 

she may talk about that study from 

personal knowledge, as a lay 

witness (i.e., describe the study 

and the conclusions). However, 

she may not apply the conclusions 

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 228 of 345
215:24 instruction based on information that had

215:25 been provided to you by Aearo?

216:01 A. On how to insert the earplug,

216:02 yeah.

216:03 Q. Okay. Now, it says, "With the

216:04 guidance of the research team, the soldiers

216:05 were able to use the earplug and obtain the

216:06 results that satisfied them."

216:07 Do you see that?

216:08 A. Yes.

216:09 Q. At any point in time, did you

216:10 receive any follow-up feedback from the

216:11 soldiers at the small arms weapons branch in

216:12 which they expressed dissatisfaction with the

216:13 performance of the Combat Arms Earplug

216:14 version 2?

216:15 A. No.

219:13 - 219:17 Babeu, Lorraine 2020-03-10 0:09

219:13 Q. Do you recall reaching the Re: [219:13 to 219:17] SUSTAINED - 611

219:14 conclusion in the early 2000s that soldiers, Pltf Obj 611; expert opinion

219:15 when firing small arms in indoor gun ranges, from non-expert; 403

219:16 should use the green end of the Combat Arms

219:17 Earplug version 2?

219:20 - 220:10 Babeu, Lorraine 2020-03-10 1:48

219:20 THE WITNESS: Okay. So Re: [219:20 to 219:24] SUSTAINED

219:21 reaching that conclusion, yeah, but it Pltf Obj Strike as

219:22 was well-known that you should use the noonresponsive, lack of

219:23 green side in indoors, that the yellow foundation for answer; 403 

219:24 side was only for outdoors.

219:25 Re: [220:02 to 220:04] SUSTAINED - 701; 802

220:01 QUESTIONS BY MR. FIELDS: Pltf Obj 802: lack of

220:02 Q. And when you say it was foundation; expert opinion

220:03 well-known, how did you become aware it was from non expert; 403 

220:04 well-known?

220:05 A. It's in the literature. The Re: [220:05 to 220:10] SUSTAINED - 602; 802

220:06 French folks put it out. I think Aearo did Pltf Obj 802; lack of

220:07 as well, or 3M did as well. foundation; expert testimony

220:08 And just in discussions with from non expert; 403

220:09 the -- our research team, you know, it was

220:10 always the yellow side outdoors.

220:22 - 221:02 Babeu, Lorraine 2020-03-10 0:15

220:22 Q. And did you ever change your

220:23 view that the green end should be used when

220:24 firing small arms, indoor gun ranges?

she may not apply the conclusions 

of the study to the facts of this 

case.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 229 of 345
220:25 A. Did I change my view on that,

221:01 that you should use the green?

221:02 Q. Yeah.

221:05 - 221:12 Babeu, Lorraine 2020-03-10 0:22

221:05 THE WITNESS: When you fire the

221:06 weapon indoors, you should use the

221:07 green side.

221:08 QUESTIONS BY MR. FIELDS:

221:09 Q. And that was your view in 2002,

221:10 and that is your view today?

221:11 A. Oh, well, yeah. I mean, I have

221:12 no reason to change it.

221:16 - 221:20 Babeu, Lorraine 2020-03-10 0:17

221:16 Q. I'm going to hand you what Re: [221:16 to 221:20]

221:17 we're going to mark as Exhibit 2 to your Pltf Obj 802; lack of

221:18 deposition, which is a February -- a foundation; 602

221:19 February 2003 publication entitled "Fast

221:20 Tracks."

221:23 - 222:01 Babeu, Lorraine 2020-03-10 0:08

221:23 Q. And our internal document Re: [221:23 to 222:01]

221:24 reference number is DOD00011494. Pltf Obj 802; lack of

221:25 Do you see that? foundation; 602

222:01 A. Uh-huh.

222:18 - 222:24 Babeu, Lorraine 2020-03-10 0:21

222:18 Q. Oh, that reminds me. When we

222:19 were talking about Exhibit 1 and I asked you

222:20 about the location of the Small Arms Weapons

222:21 Branch of the Ordnance Center and School, and

222:22 you said it was in Aberdeen, was that

222:23 Aberdeen Proving Grounds?

222:24 A. Correct.

222:25 - 223:06 Babeu, Lorraine 2020-03-10 0:14

222:25 Q. And I'd like to focus your Re: [222:25 to 223:06]

223:01 attention, first of all, in the article that Pltf Obj 802; lack of

223:02 says, "Former science advisor needs device foundation; 602

223:03 which he introduced into the Army, Combat

223:04 Arms Earplugs."

223:05 Do you see that?

223:06 A. Yes.

224:01 - 224:07 Babeu, Lorraine 2020-03-10 0:16

224:01 Q. It says, "Mr. Mike Golden, who Re: [224:01 to 224:07]

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 230 of 345
224:02 followed John as our SETAF science advisors, Pltf Obj 802; lack of

224:03 obtained 150 pairs of the earplugs for foundation; 602

224:04 evaluation by SETAF soldiers during static

224:05 target shooting."

224:06 Do you see that?

224:07 A. Yes.

225:04 - 225:18 Babeu, Lorraine 2020-03-10 1:45

225:04 Q. If you turn to page 2 of the Re: [225:04 to 225:18]

225:05 document, first column, it says, "Currently, Pltf Obj 802; lack of

225:06 Lieutenant Colonel Lorraine A. Babeu, Ph.D., foundation; 602

225:07 a military audiologist at the US Army

225:08 Research Laboratory, human research and

225:09 engineering director, its visual and auditory

225:10 processes branch, is working on a project to

225:11 determine the impact the Combat Arms Earplug

225:12 has on performance."

225:13 Do you see that?

225:14 A. Yes.

225:15 Q. And with respect to what is

225:16 being referenced here, at this time were you

225:17 actually performing the localization study?

225:18 A. Yes.

226:12 - 227:06 Babeu, Lorraine 2020-03-10 1:36

226:12 Q. It continues on. It says, Re: [226:12 to 227:06]

226:13 "AMC-FAST then contacted Bruce Amrein" -- Pltf Obj 802; lack of

226:14 A. Amrein, uh-huh. foundation; 602

226:15 Q. -- "our quick reaction

226:16 coordinator at the US Army Research

226:17 Laboratory, Human Research and Engineering

226:18 Directorate, where Bruce is also the chief,

226:19 visual and auditory processes branch."

226:20 Do you see that?

226:21 A. Yep.

226:22 Q. So was Bruce Amrein your

226:23 supervisor?

226:24 A. Yes.

226:25 Q. It says, "Working with

227:01 Lieutenant Colonel Lorraine A. Babeu, Ph.D.,

227:02 who was assigned to Bruce's branch, they

227:03 obtained 50 pair and made arrangements for

227:04 their shipment on 6 February."

227:05 Do you see that?

227:06 A. Yes.

227:11 - 227:15 Babeu, Lorraine 2020-03-10 0:07

602 OBJECTIONS WITHDRAWN, 

3/11/2021

REMAINING OBJECTIONS 

SUSTAINED - 701; 802

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 231 of 345
227:11 Q. The next sentence says, "The Re: [227:11 to 227:15]

227:12 reaction to using the earplugs was that they Pltf Obj 802; lack of

227:13 were worth their weight in gold." foundation; 602

227:14 Do you see that?

227:15 A. Yes.

228:23 - 229:02 Babeu, Lorraine 2020-03-10 0:13

228:23 Q. While you were at the Army

228:24 Research Laboratory, do you recall receiving

228:25 feedback from any soldiers suggesting that

229:01 the Combat Arms Earplug version 2 were not

229:02 reducing sound as intended?

229:05 - 229:15 Babeu, Lorraine 2020-03-10 0:23

229:05 THE WITNESS: While at the lab?

229:06 QUESTIONS BY MR. FIELDS:

229:07 Q. Yes.

229:08 A. Okay. I don't recall that.

229:09 Q. Okay. As an audiologist

229:10 working at the Army Research Laboratory,

229:11 would you have been interested in

229:12 understanding whether or not a particular

229:13 hearing protection device was performing as

229:14 expected?

229:15 A. Yes.

230:19 - 231:06 Babeu, Lorraine 2020-03-10 1:32

230:19 When you were at the Army

230:20 Research Laboratory --

230:21 A. Right.

230:22 Q. -- would it be of interest to

230:23 you to learn if there was a hearing

230:24 protection device being used by soldiers that

230:25 did not adequately attenuate sound?

231:01 A. Correct. Yes.

231:02 Q. While you were at the Army

231:03 Research Laboratory, did you learn of any

231:04 hearing protection device being used by

231:05 soldiers that did not adequately protect the

231:06 soldiers' hearing?

231:09 - 231:09 Babeu, Lorraine 2020-03-10 0:00

231:09 THE WITNESS: No, huh-uh.

231:14 - 232:19 Babeu, Lorraine 2020-03-10 1:12

231:14 Q. Here you are on page 3 --

231:15 A. I know. I should know better,

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 232 of 345
231:16 right?

231:17 Q. -- of the document.

231:18 It is entitled "The Combat Arms

231:19 Nonlinear Earplug."

231:20 Do you see that?

231:21 A. Yes.

231:22 Q. And as a matter of fact, if you

231:23 go to the prior page, there's a reference

231:24 that says, "As a follow-up to this action,

231:25 Lieutenant Colonel Babeu prepared a fact

232:01 paper which provides the background and

232:02 description of the Combat earplugs as well as

232:03 the role played by the US Army Center for

232:04 Health Promotion and Preventive Medicine,

232:05 CHPPM. Her paper is provided on page 3."

232:06 Do you see that?

232:07 A. Uh-huh.

232:08 Q. I read that correctly?

232:09 A. Yes.

232:10 Q. And on page 3, this is the fact

232:11 paper that you prepared and that was

232:12 published in the Fast Tracks digest?

232:13 A. Right.

232:14 Q. Do you recall preparing this

232:15 fact paper relating to the Combat Arms

232:16 Earplug?

232:17 A. I don't recall this one, but --

232:18 I don't recall this one, but it would not

232:19 have been uncommon for me to do it.

232:24 - 233:20 Babeu, Lorraine 2020-03-10 1:58

232:24 Q. So what was your purpose of

232:25 preparing fact papers like this regarding a

233:01 hearing protection device?

233:02 A. It would be just to describe

233:03 the product and how it's supposed to be used

233:04 and what it's supposed to do, and maybe

233:05 somewhere in here, how it stacks up against

233:06 what's currently in there.

233:07 Q. Okay.

233:08 A. Currently in our inventory.

233:09 Q. The first paragraph of this

233:10 fact paper says, "For the dismounted soldier

233:11 or Marine, conventional hearing protection

233:12 can interfere with the communication

233:13 requirements of a mission when hearing

233:14 protection is needed the most, i.e., firing

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 233 of 345
233:15 weapons from dismounted positions."

233:16 Do you see that?

233:17 A. Yes.

233:18 Q. First of all, what is a

233:19 dismounted position?

233:20 A. They're out of their vehicles.

234:09 - 234:25 Babeu, Lorraine 2020-03-10 0:28

234:09 In the second paragraph, last

234:10 sentence --

234:11 A. Okay.

234:12 Q. -- you say, "In relative quiet,

234:13 however" --

234:14 A. Okay. Yes.

234:15 Q. -- "conventional linear hearing

234:16 protectors interfere with both speech

234:17 communication and the detection of

234:18 environmental combat sounds."

234:19 Do you see that?

234:20 A. Uh-huh.

234:21 Q. What was your basis for making

234:22 that statement?

234:23 A. It's looking at the attenuation

234:24 characteristics of earplugs in quiet. Okay?

234:25 I mean, it is what it is.

235:01 - 235:12 Babeu, Lorraine 2020-03-10 1:36

235:01 In a quiet environment -- the

235:02 complaint from the field was always: When I

235:03 put the earplugs in, I can't hear anything.

235:04 And the -- in the quiet

235:05 environment, that's correct, because it's

235:06 just the nature -- it's a quiet environment,

235:07 and then you're bringing the person's hearing

235:08 thresholds down more. Okay? So they can't

235:09 hear.

235:10 But in a noisy environment, you

235:11 want it because you want to reduce that

235:12 stimulation.

235:13 - 236:05 Babeu, Lorraine 2020-03-10 1:43

235:13 Q. In the next sentence you say,

235:14 "The solution for the dismounted soldier or

235:15 Marine is a nonlinear hearing protector that

235:16 mitigates the hazard from weapons fire over a

235:17 desired range but marginally interferes with

235:18 required communications and detection of

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 234 of 345
235:19 combat sounds such as vehicle noise, steps in

235:20 leaves, closing of a rifle bolt, et cetera."

235:21 Do you see that?

235:22 A. Yes.

235:23 Q. Did I read that correctly?

235:24 A. Yes.

235:25 Q. And how did you come to learn

236:01 that a nonlinear hearing protector might

236:02 mitigate the hazards from weapons fire over a

236:03 desired range but marginally interfere with

236:04 required communications and detection of

236:05 combat sounds?

236:08 - 236:16 Babeu, Lorraine 2020-03-10 0:21

236:08 THE WITNESS: It would have

236:09 been the information that we got from

236:10 3M.

236:11 QUESTIONS BY MR. FIELDS:

236:12 Q. Prior to you joining the Army

236:13 Research Lab in approximately 2001, were you

236:14 familiar with the concept of a nonlinear

236:15 hearing protector?

236:16 A. No.

236:17 - 236:20 Babeu, Lorraine 2020-03-10 0:12

236:17 Q. Was the first nonlinear hearing

236:18 protector that you became aware of the Combat

236:19 Arms version 2?

236:20 A. Was what?

236:21 - 238:08 Babeu, Lorraine 2020-03-10 2:35

236:21 Q. Was the first nonlinear hearing

236:22 protector that you became aware of the Combat

236:23 Arms version 2?

236:24 A. Yes. Yes. Yes.

236:25 Q. If you skip down to the fifth

237:01 paragraph, you write, "The US Army Center for

237:02 Health Promotion and Preventive Medicine,

237:03 C-H-P-P-M, CHPPM, contributed to this

237:04 development effort by recommending an

237:05 American-made earplug, the UltraFit, to house

237:06 the French filter, creating the color-coded

237:07 scheme, and by performing blast

237:08 overpressure -- overpressure testing."

237:09 Do you see that?

237:10 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 235 of 345
237:11 Q. Now, the US Army Center for

237:12 Health Promotion and Preventive Medicine,

237:13 CHPPM, that's where Doug Ohlin was?

237:14 A. Yes.

237:15 Q. With respect to this sentence

237:16 about CHPPM's contribution, what was the

237:17 source of this information?

237:18 A. It would have been from Doug,

237:19 CHPPM.

237:20 Q. It says the -- continuing on,

237:21 "The single-size UltraFit should accommodate

237:22 most of our Combat Arms users."

237:23 Do you see that?

237:24 A. Yes.

237:25 Q. And why did you reach the

238:01 conclusion that the single-size UltraFit

238:02 should accommodate most of our Combat Arms

238:03 users?

238:04 A. That would have been just what

238:05 they told us.

238:06 Q. And when you say "they," who

238:07 are you referring to?

238:08 A. Either 3M or Doug.

241:03 - 241:04 Babeu, Lorraine 2020-03-10 0:02

241:03 Q. Yeah. So when you were writing

241:04 this fact paper --

241:06 - 241:11 Babeu, Lorraine 2020-03-10 0:12

241:06 Q. -- had you reached a conclusion

241:07 that you thought it was better for users to

241:08 be able to carry one earplug that provided

241:09 impulse and steady-state noise protection as

241:10 opposed to having two separate earplugs?

241:11 A. Yes.

241:15 - 241:25 Babeu, Lorraine 2020-03-10 0:27

241:15 Q. And why did you reach that

241:16 conclusion?

241:17 A. It was just -- that was the

241:18 whole thing about the Combat Arms Earplug.

241:19 You're going to get the single-sided, the

241:20 impulse noise protection, and you get the

241:21 steady state, and you get it all one -- you

241:22 know, one bang for your buck.

241:23 Q. Okay. And why was that more

241:24 beneficial in your view versus having to

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 236 of 345
241:25 carry two earplugs?

242:03 - 242:10 Babeu, Lorraine 2020-03-10 0:18

242:03 THE WITNESS: Reduction of

242:04 loss.

242:05 QUESTIONS BY MR. FIELDS:

242:06 Q. What's reduction of loss?

242:07 A. You're out in the woods.

242:08 You're out in the woods, and, you know,

242:09 things get lost. So maybe it's just less --

242:10 less cumbersome for the soldier. That's all.

246:14 - 247:05 Babeu, Lorraine 2020-03-10 1:33

246:14 Q. In the last sentence, you -- of

246:15 the document, you say, "In the Combat Arms

246:16 Earplug, we finally have a hearing protector

246:17 that protects without impairing military

246:18 effectiveness."

246:19 Do you see that?

246:20 A. Uh-huh.

246:21 Q. You do see that?

246:22 A. Yeah.

246:23 Q. Okay. At the time that you

246:24 wrote that, did you believe that to be a true

246:25 statement?

247:01 A. Yes.

247:02 Q. And during the entire time that

247:03 you were at the Army Research Laboratory, did

247:04 you believe that to be a true statement?

247:05 A. Yeah.

247:06 - 247:07 Babeu, Lorraine 2020-03-10 0:01

247:06 Q. Do you still believe that is a Re: [247:06 to 247:07]

247:07 true statement? Def Obj Hearsay (801, 802);

Relevance (401, 402)Prejudice

(403)

247:10 - 247:23 Babeu, Lorraine 2020-03-10 0:17

247:10 THE WITNESS: I don't know. I Re: [247:10 to 247:13]

247:11 mean, you got everybody saying that Def Obj Hearsay (801,802);

247:12 it's defective, so it wouldn't be Relevance (401, 402);

247:13 true. Prejudice (403)

247:14 QUESTIONS BY MR. FIELDS:

247:15 Q. Do you know one way or the

247:16 other whether it's true now?

247:17 A. Well, you've got these people

247:18 that say it's not true, so...

OVERRULED - Defendants opened 

the door; Not hearsay because not 

offered for truth

OVERRULED - Defendants opened 

the door

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 237 of 345
247:19 I haven't done any research

247:20 with it, but --

247:21 Q. So you don't know one way or

247:22 another?

247:23 A. Right.

248:15 - 249:03 Babeu, Lorraine 2020-03-10 1:07

248:15 While you were at the research

248:16 laboratory --

248:17 A. Right.

248:18 Q. -- did you see or hear any data

248:19 that caused you to question whether the

248:20 statements you wrote --

248:21 A. No, huh-uh.

248:22 Q. -- on page 3 --

248:23 A. Right.

248:24 Q. -- which is, "In the Combat

248:25 Arms Earplug, we finally have a hearing

249:01 protector that protects without impairing

249:02 military effectiveness"?

249:03 A. Right.

249:06 - 249:06 Babeu, Lorraine 2020-03-10 0:00

249:06 THE WITNESS: No.

256:06 - 257:05 Babeu, Lorraine 2020-03-10 2:35

256:06 Q. Dr. Babeu, I'm handing you what

256:07 has been marked as Exhibit 4, which is a

256:08 document that bears 3M's internal control

256:09 number DOD1314. It starts with -004 and ends

256:10 with DOD00001314-19.

256:11 Do you see that?

256:12 A. Yes.

256:13 Q. Okay. Now, we talked a little

256:14 bit earlier in this deposition about some

256:15 research that you were performing at the Army

256:16 Research Laboratory regarding sound

256:17 localization.

256:18 A. Uh-huh, yes.

256:19 Q. Now, can you tell us what this

256:20 document, which says its protocol

256:21 ARL 20098-02005 -- it says, "Project title,

256:22 detection, recognition and sound localization

256:23 abilities of human listener wearing various

256:24 headgear and earplugs."

256:25 Do you see that?

257:01 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 238 of 345
257:02 Q. And was that the research

257:03 project that you were performing in early

257:04 2000s at the Army Research Laboratory?

257:05 A. Correct, uh-huh.

257:15 - 258:10 Babeu, Lorraine 2020-03-10 1:59

257:15 Q. As part of your research for

257:16 the Army Research Laboratory, did you

257:17 typically have to submit a written protocol?

257:18 A. Yes.

257:19 Q. Okay. What was the purpose of

257:20 submitting a written protocol prior to

257:21 performing the research?

257:22 A. Well, you have to go through

257:23 the human use committee to make sure that

257:24 whatever you were going to do was in

257:25 compliance with human protection rules and

258:01 regulations.

258:02 You get approval from, like,

258:03 your lead. Like that would be Tom, okay, Tom

258:04 Letowski. We get approval from him. And --

258:05 because everybody wants it to make sense,

258:06 what you're doing, and that your hypothesis

258:07 makes sense and all of that stuff.

258:08 So that would be the purpose of

258:09 writing everything out, is to get the

258:10 appropriate approvals.

259:12 - 260:08 Babeu, Lorraine 2020-03-10 1:54

259:12 guess the question is: At some point in

259:13 time, was there a final written protocol that

259:14 was approved for your project?

259:15 A. Yes, and this is it.

259:16 Q. Okay. You actually have on

259:17 this document you as the principal

259:18 investigator?

259:19 A. Yes.

259:20 Q. What was -- what is -- and

259:21 there's also a listing of associate

259:22 investigator.

259:23 Do you see that?

259:24 A. Yes.

259:25 Q. And the associate

260:01 investigators, there are two listed:

260:02 Dr. Letowski --

260:03 A. Uh-huh.

260:04 Q. -- and Timothy Mermagen?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 239 of 345
260:05 A. Mermagen, uh-huh.

260:06 Q. So what's the difference

260:07 between the principal investigator and the

260:08 associate investigator on this project?

260:09 - 260:25 Babeu, Lorraine 2020-03-10 1:47

260:09 A. I developed the idea. I wrote

260:10 the protocol for it. Tom would -- okay. So

260:11 as the principal investigator, you're the

260:12 person that came up with the idea, wrote the

260:13 protocol for the idea, and you'll be in

260:14 charge of the study itself as it goes

260:15 through. And then you're responsible for

260:16 writing up the results and eventually getting

260:17 it published.

260:18 Q. And so you came up with the

260:19 idea to perform this project, which was

260:20 "Detection, recognition and sound

260:21 localization abilities of human listener

260:22 wearing various headgear and earplugs"?

260:23 A. Right.

260:24 Q. And why was this -- why was

260:25 this a topic you were interested in?

261:01 - 261:16 Babeu, Lorraine 2020-03-10 1:55

261:01 A. Well, it was a localization

261:02 lab, okay, so your study was going to deal

261:03 with that. And this -- the Combat Arms

261:04 Earplug was very different than what was

261:05 already in the system, and so we wanted to

261:06 make sure -- because at that time, the

261:07 developers were coming up with new helmets,

261:08 new gear for the soldiers, so we just wanted

261:09 to make sure that if we used this Combat Arms

261:10 Earplug, how does it work when you have it --

261:11 having to function in real life. In real

261:12 life it's -- you got the helmet on, you've

261:13 got gear on and things of that nature.

261:14 Q. And when you're talking about

261:15 the developers, you're talking about

261:16 developers at the US Army?

261:19 - 261:25 Babeu, Lorraine 2020-03-10 0:19

261:19 THE WITNESS: Yeah. I mean,

261:20 developers for the lab. You know,

261:21 because you've got ARL, Army Research

261:22 Lab, and they're developers who are

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 240 of 345
261:23 developing products, all types, okay?

261:24 And HRED was just a directorate within

261:25 the Army Research Lab.

263:09 - 264:09 Babeu, Lorraine 2020-03-10 1:03

263:09 So it says, "Since the Combat

263:10 Arms Earplug is new to the Army's inventory

263:11 of personal protective equipment, there has

263:12 been little research done by the US Army to

263:13 determine the effect of the plug on human

263:14 performance."

263:15 Do you see that?

263:16 A. Yes.

263:17 Q. What did you mean by "effect on

263:18 human performance"?

263:19 A. Well, what I said earlier,

263:20 okay? So a good example is Mr. Hickey's

263:21 letter, okay?

263:22 If you've got the earplug in

263:23 and you're working and head movements, it

263:24 gets caught up on clothing and things of that

263:25 nature, that's an effect on human

264:01 performance. Because you don't want to have

264:02 to stop and keep putting the earplug in, and

264:03 you don't want to go without the earplug.

264:04 Okay?

264:05 So for us at the lab at that

264:06 time, that would have been our focus. It's

264:07 like, great, we've got this new earplug, but

264:08 how does it work when you put it with

264:09 everything else that the soldiers use.

264:18 - 265:13 Babeu, Lorraine 2020-03-10 1:56

264:18 paragraph under there. It says, "The project

264:19 consists of two listening tasks. The first

264:20 task involves sound source detection,

264:21 recognition and localization."

264:22 Do you see that?

264:23 A. Yes.

264:24 Q. "The second task is a speech

264:25 recognition task using two types of stimuli."

265:01 Do you see that?

265:02 A. Yes.

265:03 Q. Now, first of all, let's focus

265:04 on the first task that you have listed here,

265:05 which is the sound source detection,

265:06 recognition and localization.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 241 of 345
265:07 Okay?

265:08 A. Right.

265:09 Q. At this point in time in the

265:10 early 2000s, did your lab have the expertise

265:11 to perform tests to evaluate products -- the

265:12 Combat Arms Earplugs' effect on sound source

265:13 detection, recognition and localization?

265:16 - 265:23 Babeu, Lorraine 2020-03-10 0:13

265:16 THE WITNESS: Yeah.

265:17 QUESTIONS BY MR. FIELDS:

265:18 Q. Did the lab have the equipment

265:19 that you needed in order to evaluate the

265:20 Combat Arms Earplug version 2's effect on

265:21 sound source detection, recognition and

265:22 localization?

265:23 A. Yes.

266:02 - 266:18 Babeu, Lorraine 2020-03-10 1:43

266:02 Q. Do you know whether or not the

266:03 lab had performed similar type testing in the

266:04 past, before this project?

266:05 A. Similar type testing of other

266:06 things. But the localization, that's the

266:07 whole -- that's what localization is all

266:08 about. That's what they do.

266:09 Q. Now, the second task that is

266:10 listed here is a speech recognition task

266:11 using two types of stimuli.

266:12 Do you see that?

266:13 A. Yeah.

266:14 Q. At the time that you submitted

266:15 this protocol, did your lab have the

266:16 expertise to perform tests on -- to evaluate

266:17 the Combat Arms Earplug version 2's effect on

266:18 speech recognition?

266:21 - 267:08 Babeu, Lorraine 2020-03-10 1:44

266:21 THE WITNESS: Yes.

266:22 QUESTIONS BY MR. FIELDS:

266:23 Q. Did it have the equipment to

266:24 perform tests to evaluate the Combat Arms

266:25 Earplug's effect on speech recognition?

267:01 A. Yes.

267:02 Q. We talked a little bit earlier

267:03 about some of the results of the localization

267:04 research.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 242 of 345
267:05 Do you recall completing the

267:06 research involving speech recognition?

267:07 A. Do I recall completing this

267:08 project? Yeah.

269:09 - 269:16 Babeu, Lorraine 2020-03-10 0:15

269:09 Q. And it says that this project

269:10 will include three different experiments.

269:11 Do you see that?

269:12 A. Yes.

269:13 Q. And this is for the -- this is

269:14 actually for the sound source detection and

269:15 recognition localization study?

269:16 A. Yes.

270:03 - 270:09 Babeu, Lorraine 2020-03-10 0:15

270:03 Q. And it lists various conditions

270:04 for each of the experiments?

270:05 A. Uh-huh.

270:06 Q. Now, do you recall as you sit

270:07 here today actually performing the experiment

270:08 using all of these different conditions?

270:09 A. Yes.

270:10 - 270:25 Babeu, Lorraine 2020-03-10 1:46

270:10 Q. Okay. And do you recall

270:11 writing up a report that provided the results

270:12 and conclusions of your research using these

270:13 various project conditions?

270:14 A. I don't recall this one. I

270:15 mean, if you have it...

270:16 Q. We don't, yeah.

270:17 A. Because if you have it, then

270:18 you know I did.

270:19 Q. Okay.

270:20 Do you recall what conclusions,

270:21 if any, you reached regarding the Combat Arms

270:22 Earplug's version 2's effect on speech

270:23 recognition?

270:24 A. For this study, I don't recall.

270:25 I don't recall the results of this at all.

271:05 - 271:22 Babeu, Lorraine 2020-03-10 1:42

271:05 Q. So if we go to page 6 of the

271:06 document, and I want to look at -- under the

271:07 speech recognition task.

271:08 Do you see that?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 243 of 345
271:09 A. Uh-huh.

271:10 Q. And it talks about "In the

271:11 speech recognition task, a target word,

271:12 Modified Rhyme Test, and phrase, Callsign

271:13 Acquisition Test, will be presented through a

271:14 loud speaker, and the soldier's task will be

271:15 to identify the word or a phrase from a list

271:16 of possibilities presented on the computer

271:17 screen and provide a response using a numeric

271:18 keypad."

271:19 Do you see that?

271:20 A. Uh-huh.

271:21 Q. Yes or no?

271:22 A. Yes, uh-huh.

272:11 - 272:15 Babeu, Lorraine 2020-03-10 0:12

272:11 Q. And do you recall performing

272:12 this speech recognition task with the Combat

272:13 Arms Earplug where you used the Modified

272:14 Rhyme Test and the Callsign Acquisition Test?

272:15 A. Yes.

273:24 - 274:03 Babeu, Lorraine 2020-03-10 1:45

273:24 Q. All right. Just for the sake

273:25 of convenience, I'm going to refer back to a

274:01 document that you were examined on earlier --

274:02 A. Uh-huh.

274:03 Q. -- which is P1553.

274:15 - 275:03 Babeu, Lorraine 2020-03-10 1:54

274:15 First of all, with respect to

274:16 page number 1 of P1553.1, this is an abstract

274:17 entitled "Sound localization wearing

274:18 level-dependent HPD, Combat Arms Earplug."

274:19 A. Correct.

274:20 Q. Now, at the bottom of this, it

274:21 indicates -- it has a reference to NHCA

274:22 Spectrum, volume 21, supplement 1, 2004.

274:23 Do you see that?

274:24 A. Uh-huh, yes.

274:25 Q. It also indicates that the

275:01 authors are you, Ms. Binseel, Dr. Letowski.

275:02 Those are the three authors?

275:03 A. Correct.

275:15 - 275:23 Babeu, Lorraine 2020-03-10 0:28

275:15 Q. Okay. Do you recall submitting

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 244 of 345
275:16 an abstract to the NHCA Spectrum regarding

275:17 the research you had performed on sound

275:18 localization?

275:19 A. Yes.

275:20 Q. And what was the purpose of

275:21 providing the abstract to the NHCA Spectrum?

275:22 A. I wanted to be able to present

275:23 at the conference.

276:10 - 276:22 Babeu, Lorraine 2020-03-10 1:31

276:10 Q. With respect to the

276:11 conference -- and we'll talk a little bit

276:12 about the conference later.

276:13 But was this a conference that

276:14 was attended by other personnel from the US

276:15 military?

276:16 A. Yes.

276:17 Q. So was one of your purposes to

276:18 make sure that the fellow members of the US

276:19 military received information on the testing

276:20 that you were doing as far as sound

276:21 localization testing on the earplug?

276:22 A. Yes.

277:07 - 277:19 Babeu, Lorraine 2020-03-10 0:26

277:07 Q. Okay. In the -- near the end

277:08 of the first paragraph, it says, "The purpose

277:09 of this project was to determine the effects

277:10 of the CAE on the soldier's ability to

277:11 localize sound sources in various listening

277:12 conditions."

277:13 Do you see that?

277:14 A. Yes.

277:15 Q. Why did you deem it important

277:16 to understand or determine the effects of the

277:17 CAE on the soldier's ability to localize

277:18 sound sources in various listening

277:19 conditions?

277:22 - 278:06 Babeu, Lorraine 2020-03-10 0:20

277:22 THE WITNESS: Well, that was

277:23 the claim to fame of the

277:24 single-sided -- you know, the yellow

277:25 side of the Combat Arms Earplug. The

278:01 claim to fame was, hey, you wear this,

278:02 and you'll be able to hear like

278:03 normal.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 245 of 345
278:04 Well, "like normal" involves

278:05 localization. So that's why we would

278:06 do it, do the research.

278:08 - 279:08 Babeu, Lorraine 2020-03-10 1:00

278:08 Q. And it outlines in general

278:09 terms that you had the -- the abstract says

278:10 you had three groups of 12 listeners, each

278:11 were used as participants. Group 1 used the

278:12 yellow side of the Combat Arms Earplug,

278:13 Group 2 used the green side of the earplug,

278:14 and Group 3 used the E-A-R foam plug.

278:15 Do you see that?

278:16 A. Yes.

278:17 Q. And is that consistent with the

278:18 design of the experiment?

278:19 A. Yes.

278:20 Q. It continues on. "Within each

278:21 group, there were four listening conditions:

278:22 open ears in quiet and noise, and protected

278:23 ears in quiet and noise."

278:24 Do you see that?

278:25 A. Yes.

279:01 Q. What does it mean when you say

279:02 "open ears in quiet and noise"?

279:03 A. No earplug.

279:04 Q. So open ears in quiet and noise

279:05 means that the listeners would not be wearing

279:06 earplugs in a quiet environment and then also

279:07 in a noisy environment?

279:08 A. Correct.

279:09 - 280:01 Babeu, Lorraine 2020-03-10 1:44

279:09 Q. You also say there's going to

279:10 be a setup with protected ears in quiet and

279:11 noise.

279:12 Do you see that? Same

279:13 sentence?

279:14 A. Yes, uh-huh.

279:15 Q. And the protected ears were

279:16 when the individuals were wearing some type

279:17 of hearing protection device?

279:18 A. Right, yes.

279:19 Q. And then you go on to say that

279:20 "participants were asked to localize various

279:21 speech and environmental stimuli."

279:22 Do you see that?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 246 of 345
279:23 A. Yes.

279:24 Q. In your view, was it important

279:25 that soldiers be able to localize various

280:01 speech and environmental stimuli?

280:04 - 280:19 Babeu, Lorraine 2020-03-10 0:29

280:04 THE WITNESS: For the earplug

280:05 to -- when I was doing this research,

280:06 that was important.

280:07 QUESTIONS BY MR. FIELDS:

280:08 Q. Okay. It says, "Data

280:09 comparisons for all three earplugs has not

280:10 revealed any significant differences in

280:11 soldier performance, although the yellow,

280:12 level-dependent earplug resulted in slightly

280:13 better performance than two others."

280:14 Do you see that?

280:15 A. Yes.

280:16 Q. And why did you reach that

280:17 conclusion?

280:18 A. Why? I mean, the statistics

280:19 probably said that.

280:23 - 281:06 Babeu, Lorraine 2020-03-10 0:26

280:23 Q. Now, if we'll continue on, I'm

280:24 just going to use the black and white

280:25 versions that are a part of this

281:01 Exhibit P1553.

281:02 A. Okay.

281:03 Q. And that's continuing on on

281:04 pages 2 through 5.

281:05 Do you see that?

281:06 A. Yes.

281:07 - 281:13 Babeu, Lorraine 2020-03-10 0:23

281:07 Q. Okay. And these were the

281:08 slides that you presented at the 2004 NHCA

281:09 annual meeting?

281:10 A. Correct.

281:11 Q. With respect to your

281:12 presentation, were there members of the US

281:13 military that attended?

281:16 - 281:18 Babeu, Lorraine 2020-03-10 0:03

281:16 THE WITNESS: This is a

281:17 conference that military people

281:18 attend.

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281:22 - 281:25 Babeu, Lorraine 2020-03-10 0:09

281:22 Q. Do you know whether anyone from

281:23 the US military attended your presentation?

281:24 A. I would -- I don't know, but I

281:25 would highly suspect that they did.

282:04 - 282:14 Babeu, Lorraine 2020-03-10 0:29

282:04 Q. If you look on page 2, the

282:05 third slide says "Level-Dependent HPD" on it?

282:06 A. Yes.

282:07 Q. And it says, "Little

282:08 attenuation at low noise levels."

282:09 Do you see that?

282:10 A. Yes.

282:11 Q. And did you come to learn that

282:12 the Combat Arms Earplug version 2 had some

282:13 amount of attenuation even at low noise

282:14 levels?

282:17 - 283:02 Babeu, Lorraine 2020-03-10 0:22

282:17 THE WITNESS: That would have

282:18 been information that would have come

282:19 from the REAT.

282:20 QUESTIONS BY MR. FIELDS:

282:21 Q. Okay. And you reviewed that

282:22 information?

282:23 A. Yep.

282:24 Q. And based on reviewing that

282:25 information, you reached the conclusion that

283:01 the Combat Arms Earplug had little

283:02 attenuation at low noise levels?

283:05 - 283:05 Babeu, Lorraine 2020-03-10 0:00

283:05 THE WITNESS: Right.

283:18 - 284:07 Babeu, Lorraine 2020-03-10 1:50

283:18 Q. If you go to the next page, so

283:19 page 3, and there's a slide that says

283:20 "Experimental Factors."

283:21 Do you see that?

283:22 A. Yes.

283:23 Q. And the slide that has

283:24 experimental factors lists whether -- the

283:25 types of earplugs or no earplug that was used

284:01 in your experiment?

284:02 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 248 of 345
284:03 Q. And so in this experiment you

284:04 compared the four different earplugs, and

284:05 also no earplug, and the effect on the

284:06 subject's localization of sound?

284:07 A. Correct.

284:08 - 284:14 Babeu, Lorraine 2020-03-10 0:22

284:08 Q. If you move over to the next

284:09 page, Mr. Buchanan asked you some questions

284:10 about this, but I want to ask you about this

284:11 slide. There's a slide that says, "Method

284:12 Earplug Fitting."

284:13 Do you see that?

284:14 A. Oh, okay. Yeah.

284:22 - 285:17 Babeu, Lorraine 2020-03-10 1:43

284:22 Q. And there's a slide that says,

284:23 "Earplug Fitting."

284:24 A. Uh-huh.

284:25 Q. And it says, "Prior to an

285:01 earplug use treatment, proper earplug

285:02 insertion demonstrated."

285:03 Do you see that?

285:04 A. Yes.

285:05 Q. Who provided the demonstration

285:06 to the subjects?

285:07 A. It would have been me.

285:08 Q. And then it says -- the next

285:09 dash says, "Unless grossly wrong,

285:10 experimenter did not tamper with fit of

285:11 earplug."

285:12 Do you see that?

285:13 A. Yes.

285:14 Q. Do you recall any instances

285:15 where any of the experimenters had to tamper

285:16 with the fit of the earplugs?

285:17 A. I don't recall, huh-uh.

285:18 - 286:13 Babeu, Lorraine 2020-03-10 1:18

285:18 Q. And I think you indicated

285:19 earlier that the experimenters did not

285:20 instruct the subjects to fold over the

285:21 opposite flange of the earplugs before -- the

285:22 Combat Arms Earplugs before inserting them?

285:23 A. Okay. So let's clarify.

285:24 Q. Okay.

285:25 A. What do you mean by "fold

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 249 of 345
286:01 over"?

286:02 Q. Okay. I don't have a set of

286:03 the earplugs, but if you look at the

286:04 picture...

286:05 So if you look at P0715.2.

286:06 When -- I think -- and

286:07 Mr. Buchanan can correct me if I'm wrong, but

286:08 when either of us are talking about folding

286:09 over the opposite end, it means that if you

286:10 were going to insert the yellow end into your

286:11 ear, you would fold over the flange backwards

286:12 of the --

286:13 A. Oh, no, huh-uh.

286:14 - 286:18 Babeu, Lorraine 2020-03-10 0:10

286:14 Q. Okay. Are you aware of any of

286:15 the subjects folding over the opposite flange

286:16 when inserting the Combat Arms Earplug

286:17 version 2?

286:18 A. No.

287:21 - 288:23 Babeu, Lorraine 2020-03-10 1:21

287:21 And specifically I want to look

287:22 at the slide on P1553.5 that has the heading,

287:23 "Results, No Noise."

287:24 Do you see that?

287:25 A. Correct, uh-huh.

288:01 Q. And that's the -- your

288:02 experimental results when there was quiet?

288:03 A. Correct.

288:04 Q. And one of the things that you

288:05 did in this slide is you have a column that

288:06 has your listening condition, and then you

288:07 have a column that says your average error.

288:08 Do you see that?

288:09 A. Yes.

288:10 Q. And what do you mean by the

288:11 average error column? What's in the average

288:12 error column?

288:13 A. The number of errors. The

288:14 average of the number of errors.

288:15 Q. Okay. And with respect to this

288:16 slide, which is on P1553.5, when there was no

288:17 noise, the subjects with no earplug had the

288:18 best ability to localize?

288:19 A. Right.

288:20 Q. And then the users that were

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 250 of 345
288:21 wearing the Combat Arms Earplug yellow end

288:22 had the next best ability to localize sound?

288:23 A. Correct.

289:08 - 290:12 Babeu, Lorraine 2020-03-10 2:40

289:08 Q. Now, if we go over to page

289:09 P11 -- 1553.6, there is a slide that says,

289:10 "Results, Noise."

289:11 Do you see that?

289:12 A. Yes.

289:13 Q. And that is the results of your

289:14 experiments when the users were subjected to

289:15 some level of noise?

289:16 A. Correct.

289:17 Q. And in the experimental setup

289:18 with noise, the subjects that were not

289:19 wearing an earplug were better able to

289:20 localize the sound?

289:21 A. Yes.

289:22 Q. And then the users wearing the

289:23 Combat Arms Earplug green had the next lowest

289:24 level at 25?

289:25 A. Yes.

290:01 Q. And then the single-ended --

290:02 those were in the single-ended --

290:03 single-sided earplug and the Combat Arms

290:04 yellow were tied for the next lowest?

290:05 A. Correct.

290:06 Q. And the single-sided is what is

290:07 commonly called the French plug?

290:08 A. Right.

290:09 Q. And the earplug -- the subjects

290:10 who were wearing the Classic foam earplug had

290:11 the lowest ability to localize sounds?

290:12 A. Correct.

290:13 - 291:11 Babeu, Lorraine 2020-03-10 1:01

290:13 Q. And the last slide that is on

290:14 page P1553.6 is the summary slide.

290:15 Do you see that?

290:16 A. Right, uh-huh.

290:17 Q. And it says, "With background

290:18 noise, overall performance better with all

290:19 earplugs."

290:20 Do you see that?

290:21 A. Correct, uh-huh.

290:22 Q. And what did you mean by that?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 251 of 345
290:23 A. If you compared the noise

290:24 versus no noise, or no noise versus noise, it

290:25 turns out there were less errors in the noise

291:01 condition than in quiet.

291:02 Q. And then you say, "Overall, the

291:03 level-dependent earplugs performed better

291:04 than the standard earplug."

291:05 Do you see that?

291:06 A. Yes.

291:07 Q. And what was the standard

291:08 earplug? What's that reference to?

291:09 A. The E-A-R.

291:10 Q. The E-A-R Classic foam?

291:11 A. Correct.

291:12 - 291:16 Babeu, Lorraine 2020-03-10 0:13

291:12 Q. And the level-dependent

291:13 earplugs would be the single-sided French

291:14 plug and the yellow end of the Combat Arms

291:15 Earplug?

291:16 A. Yes.

293:02 - 293:06 Babeu, Lorraine 2020-03-10 0:17

293:02 Q. Okay. So based on your

293:03 research, are you able to determine whether

293:04 or not users of Combat Arm version 2 earplugs

293:05 would be able to adequately localize sounds

293:06 in either a quiet or noisy environment?

293:09 - 293:15 Babeu, Lorraine 2020-03-10 0:13

293:09 THE WITNESS: On this?

293:10 QUESTIONS BY MR. FIELDS:

293:11 Q. Yeah.

293:12 A. Okay. They had less errors in

293:13 noise.

293:14 Q. As compared to --

293:15 A. To in quiet.

293:16 - 293:21 Babeu, Lorraine 2020-03-10 0:11

293:16 Q. Okay. So was one of the things

293:17 you were trying to do was to figure out

293:18 whether or not users of the Combat Arms

293:19 Earplug version 2 could adequately localize

293:20 sounds in the field?

293:21 A. Yes.

293:25 - 294:05 Babeu, Lorraine 2020-03-10 0:16

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 252 of 345
293:25 Q. And did this research allow you

294:01 to research a conclusion on that particular

294:02 issue?

294:03 A. Not for the fields, because it

294:04 wasn't a field study. It was a controlled

294:05 environment like this.

294:06 - 294:10 Babeu, Lorraine 2020-03-10 0:15

294:06 Q. Okay. Were you able to reach

294:07 any conclusions based on the laboratory

294:08 research regarding the ability of the Combat

294:09 Arms Earplug version 2 to permit users to

294:10 localize sounds?

294:13 - 294:25 Babeu, Lorraine 2020-03-10 0:29

294:13 THE WITNESS: They had less

294:14 errors.

294:15 QUESTIONS BY MR. FIELDS:

294:16 Q. And what does it mean, "they

294:17 had less errors"?

294:18 A. Okay. So less errors in a

294:19 quiet environment.

294:20 To -- just coming from an

294:21 audiology standpoint, to say that this would

294:22 allow you to localize better, I just -- we

294:23 didn't get there from this. It just kind of

294:24 helped us -- you'd need more research to

294:25 actually come up and make that claim.

295:17 - 295:21 Babeu, Lorraine 2020-03-10 0:28

295:17 Q. Okay. Dr. Babeu, we're going

295:18 to hand you what we have marked as Exhibit

295:19 Number 5. And Exhibit Number 5 is a -- is

295:20 entitled "Sail the Sound, 29th Annual NHCA

295:21 Hearing Conservation Conference."

296:14 - 296:19 Babeu, Lorraine 2020-03-10 0:17

296:14 Q. And the abstract that is on

296:15 page 24 is a conference abstract that you

296:16 provided to the NHCA in the hopes that they

296:17 would accept the abstract and allow you to

296:18 present your results at the conference?

296:19 A. Correct.

296:23 - 297:02 Babeu, Lorraine 2020-03-10 0:09

296:23 Q. And eventually the NHCA did

296:24 accept your abstract --

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 253 of 345
296:25 A. Yes.

297:01 Q. -- and permit you to give a

297:02 presentation at the annual conference?

297:05 - 297:22 Babeu, Lorraine 2020-03-10 1:48

297:05 THE WITNESS: Yes.

297:06 QUESTIONS BY MR. FIELDS:

297:07 Q. And if you turn to page 18 of

297:08 the document, you'll see sort of an agenda or

297:09 timetable.

297:10 Do you see that?

297:11 A. Yes.

297:12 Q. And you see that on Saturday,

297:13 February 21st, from 11:50 to 12:10 p.m., you

297:14 were scheduled to give the talk "Sound

297:15 Localization Wearing Level-Dependent HPD

297:16 Combat Arms Earplugs."

297:17 Do you see that?

297:18 A. Yes.

297:19 Q. And do you recall giving the

297:20 presentation that is outlined in the abstract

297:21 that is included in Exhibit 5?

297:22 A. Yes.

297:23 - 298:03 Babeu, Lorraine 2020-03-10 0:14

297:23 Q. One of the things in the sound

297:24 localization study, one of the types of

297:25 earplugs that you used was the foam earplug,

298:01 the E-A-R Classic foam earplug.

298:02 Do you recall that?

298:03 A. Yes.

298:18 - 299:05 Babeu, Lorraine 2020-03-10 1:47

298:18 Q. Was the E-A-R foam plug a plug

298:19 that was made available to members of the US

298:20 military at the time?

298:21 A. Yes.

298:22 Q. And when you were at the Army

298:23 Research Laboratory in the 2001 to 2005 time

298:24 period, did you have experience wearing the

298:25 E-A-R Classic foam plug?

299:01 A. Yes.

299:02 Q. Okay. And were you aware of

299:03 other members of the US military using the

299:04 E-A-R Classic foam plug?

299:05 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 254 of 345
307:02 - 307:13 Babeu, Lorraine 2020-03-10 1:39

307:02 Q. I want to talk with you now

307:03 about your research on the -- involving

307:04 DPOAE.

307:05 Okay?

307:06 A. Okeydoke.

307:07 Q. And we talked about that a

307:08 little earlier --

307:09 A. Okay.

307:10 Q. -- and that was -- was that a

307:11 separate research project versus the sound

307:12 localization project?

307:13 A. Yes.

308:18 - 310:07 Babeu, Lorraine 2020-03-10 2:28

308:18 Now, with respect to the DPOAE

308:19 project, who came up with the idea?

308:20 A. Of using DPOAEs?

308:21 Q. Uh-huh.

308:22 A. I probably did.

308:23 Q. Okay. And why did you want to

308:24 evaluate DPOAE after small arms fire when

308:25 using level-dependent hearing protection?

309:01 A. The whole thing about DPOAEs,

309:02 or otoacoustic measures, is that they're a

309:03 little bit more sensitive than the

309:04 traditional pure tone audiogram.

309:05 Q. And what do you mean, they're

309:06 more sensitive than the pure tone audiogram?

309:07 A. You would just start to see

309:08 changes in hearing that the -- the

309:09 sensitivity of the typical audiogram is not

309:10 going to pick up.

309:11 Q. If you go to .2 -- first of

309:12 all, again, these were slides that you

309:13 presented at a meeting of the National

309:14 Hearing Conservation Association?

309:15 A. Yes.

309:16 Q. I wanted to look at some of

309:17 the slides that you used.

309:18 I mean, one, I wanted to focus

309:19 on the background slide, which is on .2.

309:20 A. Oh, background. Okay. Yes.

309:21 Q. And what it says is, "The ideal

309:22 HPD would be adaptive to different

309:23 environments."

309:24 Do you see that?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 255 of 345
309:25 A. Yes.

310:01 Q. And what did you mean by that

310:02 statement?

310:03 A. The big environment for the

310:04 Army was going from relative quiet to a fire

310:05 fight, and so you would want an earplug that

310:06 could function under both listening

310:07 conditions.

311:24 - 312:01 Babeu, Lorraine 2020-03-10 0:12

311:24 Q. And as an audiologist, were you

311:25 familiar with the importance of otoacoustic

312:01 emissions?

312:02 - 312:02 Babeu, Lorraine 2020-03-10 0:00

312:02 A. Yes.

312:08 - 312:19 Babeu, Lorraine 2020-03-10 0:24

312:08 Q. I'm sorry, let's go back to the

312:09 exhibit, which is P --

312:10 A. 0124.

312:11 Q. -- 124.

312:12 A. Okeydoke.

312:13 Q. .1.

312:14 You're getting good.

312:15 There are some -- there's a

312:16 slide on here that has peak pressure and

312:17 insertion loss.

312:18 Do you see that?

312:19 A. Oh, yes, uh-huh.

313:08 - 313:20 Babeu, Lorraine 2020-03-10 0:27

313:08 Q. As you sit here today, do you

313:09 know where the peak pressure measurements

313:10 came from?

313:11 A. No, huh-uh.

313:12 Q. And you say you would have

313:13 determined the insertion loss?

313:14 A. Right.

313:15 Q. And did you have the equipment

313:16 at the Army Research Laboratory at Aberdeen

313:17 Proving Ground to determine insertion loss

313:18 from earplugs?

313:19 A. Yes.

313:20 It's a hearing test.

316:14 - 317:11 Babeu, Lorraine 2020-03-10 1:55

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 256 of 345
316:14 Q. Eight subjects had normal

316:15 hearing sensitivity in both ears?

316:16 A. Right.

316:17 Q. One subject had moderate to

316:18 moderately severe high frequency loss at 6 to

316:19 8 kilohertz in the left ear.

316:20 Do you see that?

316:21 A. Yes.

316:22 Q. And with respect to this

316:23 individual that had moderate to moderately

316:24 severe high frequency loss at 6 to

316:25 8 kilohertz in the left ear, he was -- he or

317:01 she was included in the study?

317:02 A. Yes.

317:03 Q. And why did you include that

317:04 individual in the study, even if the

317:05 individual had moderate to moderately severe

317:06 high frequency loss in one ear?

317:07 A. Because the noise, if it's

317:08 going to affect a person's hearing, it's

317:09 usually at 3 to 4 K. So if I had normal

317:10 hearing up to that point, I felt confident

317:11 that I could keep the person in the study.

317:14 - 318:19 Babeu, Lorraine 2020-03-10 1:19

317:14 Q. There is a slide that says

317:15 "Results."

317:16 Do you see that?

317:17 A. Yes.

317:18 Q. And it says, "Test of within

317:19 subjects' effects measure."

317:20 A. Uh-huh.

317:21 Q. And the first setting says, "No

317:22 significant main effects or interaction for

317:23 the following factors, DPOAE measurement

317:24 hearing protection."

317:25 A. Correct.

318:01 Q. What does that mean?

318:02 A. So when I'm looking at the main

318:03 effects of hearing protection and distortion

318:04 products, when you run the statistical

318:05 analysis -- and it's been a long time, but

318:06 when you run it, you're looking to see, when

318:07 you made this change, did this happen or did

318:08 something happen. You did this; did

318:09 something else happen. So when you run your

318:10 statistics, you're looking for your main

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 257 of 345
318:11 effects.

318:12 So that's what I was

318:13 indicating, that there were no main effects

318:14 on DPOAE measurement and hearing protection.

318:15 Q. So does that mean that it did

318:16 not appear from a statistical standpoint that

318:17 hearing protection -- that the type of

318:18 hearing protection had a statistically

318:19 significant effect on DPOAE measurements?

318:22 - 319:03 Babeu, Lorraine 2020-03-10 0:19

318:22 THE WITNESS: Okay. So it's no

318:23 significant effect on frequency. So

318:24 we measured along different

318:25 frequencies. And no interaction

319:01 between three factors: hearing

319:02 protection, distortion product or

319:03 frequency.

319:24 - 320:02 Babeu, Lorraine 2020-03-10 0:15

319:24 Q. As part of your research on

319:25 DPOAEs, in the study you also were running

320:01 pure tone audiogram on the subjects?

320:02 A. Yes.

320:15 - 321:10 Babeu, Lorraine 2020-03-10 1:34

320:15 So when they came and they were

320:16 getting ready to participate in the

320:17 experiment --

320:18 A. Right.

320:19 Q. -- before they would fire the

320:20 gun --

320:21 A. Right.

320:22 Q. -- you would -- you or your

320:23 team would perform DPOAE measurements?

320:24 A. Correct.

320:25 Q. And then after the individuals

321:01 had fired the weapons --

321:02 A. Correct.

321:03 Q. -- you would perform another

321:04 DPOAE measurement?

321:05 A. Correct.

321:06 Q. And you indicated earlier that

321:07 you were performing the DPOAE measurements in

321:08 a sound booth in a building located next to

321:09 the firing range?

321:10 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 258 of 345
321:11 - 322:04 Babeu, Lorraine 2020-03-10 1:58

321:11 Q. And what was your purpose of

321:12 performing DPOAE measurements before the

321:13 firing and then after the firing?

321:14 A. The whole point of the DPOAE is

321:15 to look at the amplitude. So you look at the

321:16 amplitude before they fire and then the

321:17 amplitude of the DPOAE after they fire.

321:18 And what I'm looking for, is

321:19 there a statistically significant change

321:20 before and after firing, in the DPOAE.

321:21 Q. And does that -- when you say

321:22 whether there's a statistically different --

321:23 statistically significant difference --

321:24 A. Uh-huh.

321:25 Q. -- was your hypothesis that

322:01 gunfire could cause a decrease in the

322:02 amplitude of the DPOAE?

322:03 A. Right. I mean, that's the

322:04 whole thing.

322:17 - 323:23 Babeu, Lorraine 2020-03-10 2:38

322:17 Q. And so, for example, on 124.12,

322:18 on the bottom slide, you have a comparison of

322:19 DPOE amplitudes for wearers of Combat Arms

322:20 Earplug, level-dependent side, before and

322:21 after small arms fire?

322:22 A. Correct.

322:23 Q. And the level-dependent end of

322:24 the Combat Arms Earplug would be the yellow

322:25 end?

323:01 A. Yes.

323:02 Q. Okay. With respect to -- and

323:03 you have -- for each of the frequencies, you

323:04 have measurements of DPOAE amplitudes?

323:05 A. Yes.

323:06 Q. With respect to the data that

323:07 is presented here, is this a combination or

323:08 the average amplitudes of the subjects?

323:09 A. Yes.

323:10 Q. Okay. So if you look, for

323:11 example, at 500, the amplitude of the DPOAE

323:12 emissions is higher than after firing.

323:13 Do you see that?

323:14 A. Yes, uh-huh.

323:15 Q. And that's true for several

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 259 of 345
323:16 other frequencies as well.

323:17 Do you see that?

323:18 A. Yes.

323:19 Q. And then when you get up to

323:20 around 2000 and higher, the DPOAE amplitudes

323:21 are higher after firing than before firing.

323:22 Do you see that?

323:23 A. Yes.

323:24 - 324:19 Babeu, Lorraine 2020-03-10 2:33

323:24 Q. And did you reach a hypothesis

323:25 as to why -- or develop a hypothesis as to

324:01 why, at frequencies at 2000 or above, the

324:02 DPOAE amplitudes are higher after firing than

324:03 before firing for the Combat Arms yellow end?

324:04 A. No.

324:05 Q. If you look at the slide on

324:06 P124.13, the top slide, this is a slide that

324:07 actually compares the DPO -- the average

324:08 DPOAE amplitudes of the subjects wearing the

324:09 green end of the Combat Arms Earplug before

324:10 and after small arms fire?

324:11 A. Right.

324:12 Q. And with respect to the

324:13 amplitudes for the subjects, for example, at

324:14 500 hertz, the average amplitude was lower

324:15 before firing than after firing?

324:16 A. Right.

324:17 Q. Okay. And that was true for

324:18 several frequencies. That was true,

324:19 actually, on all the frequencies, wasn't it?

324:22 - 325:09 Babeu, Lorraine 2020-03-10 1:58

324:22 THE WITNESS: Yeah.

324:23 QUESTIONS BY MR. FIELDS:

324:24 Q. And did you reach a conclusion

324:25 why the DPOAE amplitudes of the subjects

325:01 wearing the green end of the Combat Arm

325:02 Earplugs had higher DPOAE amplitudes after

325:03 firing than before firing?

325:04 A. No, huh-uh.

325:05 Q. And in the slide on the bottom

325:06 of P0124.1 -- .13 is a comparison of DPOAE

325:07 amplitudes of users wearing the ComTac

325:08 earmuff before and after small arms fire?

325:09 A. Yes.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 260 of 345
325:10 - 325:17 Babeu, Lorraine 2020-03-10 0:25

325:10 Q. If you turn to 0124.14, in the

325:11 summary slide you say, "Type of hearing

325:12 protection did not have significant impact on

325:13 DPOAE."

325:14 Do you see that?

325:15 A. Yes.

325:16 Q. And what did you mean by that?

325:17 A. Statistically significant.

325:22 - 325:25 Babeu, Lorraine 2020-03-10 0:09

325:22 As a researcher, were you

325:23 trying to determine whether the type of

325:24 hearing protection had a statistically

325:25 significant impact on DPOAE measurements --

326:04 - 326:25 Babeu, Lorraine 2020-03-10 2:54

326:04 Q. -- or amplitudes?

326:05 A. Yes, that was the whole point

326:06 of the study.

326:07 Q. If you would find

326:08 Exhibit P1560. It's the article. Yeah,

326:09 without comments.

326:10 Now, I know you mentioned

326:11 earlier that you had some communications with

326:12 Mr. Berger about your DPOAE experiment?

326:13 A. Yes.

326:14 Q. Did Mr. Berger or Aearo play

326:15 any role in the design of your DPOAE

326:16 experiment?

326:17 A. No, huh-uh.

326:18 Q. Did either Mr. Berger or anyone

326:19 at Aearo participate in the process of

326:20 collecting the data for the experiment?

326:21 A. No.

326:22 Q. Based on your dissertation, you

326:23 had previous experience performing

326:24 experiments using DPOAE measurements?

326:25 A. Yes.

328:22 - 329:23 Babeu, Lorraine 2020-03-10 2:34

328:22 Q. Now, at the time that you sent

328:23 a -- and I'm not going to get into the

328:24 substance of the draft.

328:25 But at the time you sent the

329:01 document, a draft of the DPOAE article to

329:02 Mr. Berger --

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 261 of 345
329:03 A. Uh-huh.

329:04 Q. -- you were aware that

329:05 Mr. Berger worked for Aearo?

329:06 A. Yeah.

329:07 Q. And you were aware that Aearo

329:08 was the company that marketed and sold the

329:09 Combat Arms Earplug?

329:10 A. Correct.

329:11 Q. Okay. And even though Aearo

329:12 was the company that sold the Combat Arms

329:13 Earplug and Mr. Berger worked for the

329:14 company, why did you feel comfortable seeking

329:15 his comments?

329:16 A. Because in the audiology field,

329:17 especially noise field, he is one of our

329:18 leading experts. So, you know, if he were

329:19 somebody that we shouldn't use in terms of

329:20 him not being -- not having the expertise,

329:21 Tom wouldn't have let me send it to him.

329:22 It's like, oh, wow, yeah, Elliott, ask him,

329:23 yeah.

335:07 - 336:01 Babeu, Lorraine 2020-03-10 1:57

335:07 Q. If you go to page 3 of the

335:08 document --

335:09 A. Of this?

335:10 MAJOR EVANS: Yes.

335:11 QUESTIONS BY MR. FIELDS:

335:12 Q. Yes, of the article, or of the

335:13 report.

335:14 I'm sorry. If you go back to

335:15 page 2, the second full paragraph, first

335:16 sentence, you say, "Studies have demonstrated

335:17 that the otoacoustic emission provides a

335:18 vehicle for observing the effects of noise on

335:19 the cochlear."

335:20 Do you see that?

335:21 A. Yes.

335:22 Q. And why was it important to

335:23 you, if it was, that there were studies

335:24 showing that otoacoustic emissions could

335:25 provide a vehicle for observing the effects

336:01 of noise on the cochlear?

336:19 - 337:04 Babeu, Lorraine 2020-03-10 1:50

336:19 If you go to page 7 of the

336:20 document under Results.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 262 of 345
336:21 Under Results, you're outlining

336:22 the results of your research, correct?

336:23 A. Right.

336:24 Q. And one of the things that you

336:25 say in the second paragraph is, "There were

337:01 no significant, P less than .05, main effects

337:02 for the type of hearing protection in before

337:03 and after firing DPOAE amplitudes."

337:04 Correct?

337:11 - 339:12 Babeu, Lorraine 2020-03-10 2:14

337:11 There's a sentence here that

337:12 says, "There was no interaction between the

337:13 type of hearing protection, frequency of the

337:14 DPOAE amplitudes, or the before or after

337:15 weapons fire DPOAE measurement."

337:16 Correct?

337:17 A. Correct.

337:18 Q. And finally it says, "The daily

337:19 post-weapons fire hearing test results were

337:20 negative for significant increase in hearing

337:21 threshold for frequencies 500 to

337:22 800 hertz" --

337:23 A. 8000.

337:24 Q. Oh, "8000 hertz" -- let me read

337:25 that over.

338:01 "The daily post-weapons fire

338:02 hearing test results were negative for

338:03 significant decrease in hearing threshold for

338:04 frequencies 500 to 8000 hertz, 10 decibel

338:05 shift or greater."

338:06 Do you see that?

338:07 A. Uh-huh.

338:08 Q. Yes, you do?

338:09 A. Yes, I do. I'm sorry. I'm

338:10 sorry.

338:11 Q. You're familiar with the term

338:12 "temporary threshold shift"?

338:13 A. Correct.

338:14 Q. And what is a temporary

338:15 threshold shift?

338:16 A. It's a change in hearing that

338:17 after noise exposure, let's say, you will

338:18 have a temporary decrease in your hearing

338:19 thresholds. So your hearing will get a

338:20 little worse.

338:21 And then over time, it

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 263 of 345
338:22 recovers. So because it recovers, we call it

338:23 a temporary threshold shift.

338:24 Q. And then what is a permanent

338:25 threshold shift?

339:01 A. The threshold change does not

339:02 go back to baseline. It doesn't go back. It

339:03 just stays. You now have a decrease at that

339:04 frequency.

339:05 Q. And can you use audiograms to

339:06 determine whether or not an individual has

339:07 sustained a temporary threshold shift?

339:08 A. Yeah, uh-huh.

339:09 Q. And can you also use audiograms

339:10 to determine whether an individual has

339:11 sustained a permanent threshold shift?

339:12 A. Yes.

339:16 - 339:24 Babeu, Lorraine 2020-03-10 0:27

339:16 Q. In this particular experiment,

339:17 one of the things that you were doing is

339:18 after -- each day after weapons fire, you

339:19 were running a pure tone audiogram on the

339:20 subjects?

339:21 A. Yes.

339:22 Q. Okay. Based on your research,

339:23 did any of the subjects in the experiment

339:24 sustain a temporary threshold shift?

340:02 - 340:02 Babeu, Lorraine 2020-03-10 0:02

340:02 THE WITNESS: Yeah. No.

340:04 - 340:06 Babeu, Lorraine 2020-03-10 0:06

340:04 Q. Okay. Did any of the

340:05 individuals in the experiment sustain a

340:06 permanent threshold shift?

340:08 - 340:10 Babeu, Lorraine 2020-03-10 0:05

340:08 THE WITNESS: No. Well, there

340:09 was the one guy that had the injury,

340:10 but it wasn't permanent. It resolved.

340:12 - 340:19 Babeu, Lorraine 2020-03-10 0:11

340:12 Q. So other than the one

340:13 individual that was -- eventually was removed

340:14 from the study --

340:15 A. Right.

340:16 Q. -- did anyone -- well, you said

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 264 of 345
340:17 that wasn't permanent. So let me ask about

340:18 permanent again.

340:19 A. Uh-huh.

340:20 - 340:23 Babeu, Lorraine 2020-03-10 0:12

340:20 Q. So during your study, did any

340:21 of the subjects sustain a permanent threshold

340:22 shift?

340:23 A. No. Not based on this.

340:24 - 341:04 Babeu, Lorraine 2020-03-10 0:09

340:24 Q. And with respect to the one

340:25 individual you indicated earlier where you

341:01 removed him from the study --

341:02 A. Right.

341:03 Q. -- that individual, you don't

341:04 know the cause of the threshold shift?

341:07 - 341:07 Babeu, Lorraine 2020-03-10 0:02

341:07 THE WITNESS: Right.

341:09 - 341:25 Babeu, Lorraine 2020-03-10 1:53

341:09 Q. And if you go to page 4, under

341:10 Methodology, Subjects, you say at the very

341:11 end of that paragraph, "Post-firing

341:12 audiograms were recorded after each firing

341:13 event to ensure that no significant decrease

341:14 in hearing sensitivity had occurred during

341:15 the firing event."

341:16 A. Correct.

341:17 Q. So for each of these subjects,

341:18 were you actually performing multiple

341:19 audiograms --

341:20 A. Yes.

341:21 Q. -- during the course of the

341:22 study?

341:23 A. Uh-huh.

341:24 Q. Yes?

341:25 A. Yes.

342:21 - 343:15 Babeu, Lorraine 2020-03-10 1:12

342:21 Q. On page 4 of this article, you

342:22 write, "In order to make the desired

342:23 observation, the DPOAE is the ideal vehicle

342:24 because it provides the DPOE is more

342:25 sensitive to outer hair cell disturbance than

343:01 traditional audiograms."

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 265 of 345
343:02 Do you see that?

343:03 A. Correct. Yes.

343:04 Q. And what did you mean by that?

343:05 A. Well, that was the whole --

343:06 that's the whole point of otoacoustic

343:07 emissions, is that it's a way for us to get a

343:08 measurement that there's possibly some change

343:09 in the cochlea that would not show up on an

343:10 audiogram.

343:11 Q. And as a result of your study,

343:12 did you see a statistically significant

343:13 effect on the cochlear as a result of being

343:14 exposed to gunfire with hearing protection

343:15 devices used in the study?

343:18 - 345:18 Babeu, Lorraine 2020-03-10 2:23

343:18 THE WITNESS: Yeah, there was

343:19 no significant effect.

343:20 QUESTIONS BY MR. FIELDS:

343:21 Q. Okay. And we talked earlier

343:22 about the fitting instructions for the

343:23 localization study. I wanted to briefly

343:24 touch on the fitting instructions that were

343:25 given as part of this study, if they were.

344:01 A. Okay.

344:02 Q. First of all, let me ask you:

344:03 Did you provide the subjects with

344:04 instructions on how to fit the device?

344:05 A. Yes.

344:06 Q. Okay. And if you -- as a

344:07 matter of fact, if you go to the bottom of

344:08 page 4, under Hearing Protectors it says,

344:09 "The hearing protectors used in the study

344:10 were the following: Combat Arms Earplug,

344:11 level-dependent, yellow; Combat Arms Earplug,

344:12 non-level-dependent, olive drab; and the

344:13 Peltor ComTac noise muff."

344:14 Do you see that?

344:15 A. Yes, uh-huh.

344:16 Q. And then you say, "The subject

344:17 received instruction on how to insert the

344:18 earplugs."

344:19 Do you see that?

344:20 A. Yes.

344:21 Q. And then you say, "The actual

344:22 insertion or placement of the hearing

344:23 protection was conducted by the experimenter

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 266 of 345
344:24 team."

344:25 Do you see that?

345:01 A. Correct. Yes.

345:02 Q. With respect to the

345:03 instructions on how to insert the earplugs,

345:04 did you and the experimenter team tell any of

345:05 the subjects to fold over the flanges of the

345:06 earplug before inserting it in his or her

345:07 ear?

345:08 A. From what I remember, no,

345:09 because this fold-over stuff is new.

345:10 Q. As you sit here today, do you

345:11 recall any of the subjects who participated

345:12 in the study rolling over the flanges of the

345:13 earplug prior to inserting it in his or her

345:14 ears?

345:15 A. When you say "rolling over,"

345:16 are you talking about that pull back --

345:17 Q. The flanges over, yeah.

345:18 A. Right. No.

345:19 - 345:22 Babeu, Lorraine 2020-03-10 0:18

345:19 Q. Based on the experiment that

345:20 you performed that's outlined in P1560, were

345:21 any of the subjects who participated, did any

345:22 of them sustain any type of hearing loss?

345:25 - 346:01 Babeu, Lorraine 2020-03-10 0:01

345:25 THE WITNESS: The only person

346:01 was that one person.

346:07 - 346:11 Babeu, Lorraine 2020-03-10 0:17

346:07 Q. Other than the one person who

346:08 did not participate in the study, did any of

346:09 the other subjects who participated in the

346:10 study, did they sustain any hearing loss

346:11 based on the data that you collected?

346:14 - 346:14 Babeu, Lorraine 2020-03-10 0:00

346:14 THE WITNESS: No.

348:21 - 348:25 Babeu, Lorraine 2020-03-10 0:24

348:21 Q. If you would go to P1560.3, and

348:22 I want to look at the last paragraph on that

348:23 page.

348:24 And the first sentence of that

348:25 says, "The use of DPOAE as an early detector

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 267 of 345
348:24 - 349:24 Babeu, Lorraine 2020-03-10 2:32

348:24 And the first sentence of that

348:25 says, "The use of DPOAE as an early detector

349:01 of cochlear damage was borne out by Shi and

349:02 Martin 1997 who compared the effectiveness of

349:03 the click auditory brainstem response, ABR,

349:04 and DPOAE in detecting cochlear damage caused

349:05 by gentamycin treatment in the guinea pig."

349:06 Do you see that?

349:07 A. Uh-huh, yes.

349:08 Q. And then you go down a little

349:09 bit further, about three sentences further

349:10 down, you write, "DPOAEs have also been used

349:11 to determine the effects of noise on cochlea

349:12 response."

349:13 Do you see that?

349:14 A. Correct.

349:15 Q. At the time that you wrote this

349:16 document, did you believe that DPOAE testing

349:17 could serve as an early detector of damage to

349:18 the cochlea caused by noise?

349:19 A. Caused by noise, yes.

349:20 Q. Okay. And if you go back to

349:21 page 5 of the article, there's a section that

349:22 talks about the small arms weapons.

349:23 Do you see that?

349:24 A. Yes.

349:25 - 351:05 Babeu, Lorraine 2020-03-10 2:36

349:25 Q. And the small arm weapons that

350:01 were used by the test subjects in your study

350:02 were either an M16 rifle or an M4 carbine

350:03 rifle?

350:04 A. Correct.

350:05 Q. And as part of your study, the

350:06 subjects fired 54 rounds each time that --

350:07 each day. The total rounds fired over the

350:08 nine-day period was 486.

350:09 Do you see that?

350:10 A. Correct.

350:11 Q. So if I'm interpreting that

350:12 correctly, that means each of the subjects

350:13 would have fired 486 rounds as part of your

350:14 study?

350:15 A. Correct.

350:16 Q. And are you saying that the

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 268 of 345
350:17 subjects would have fired 54 rounds each day?

350:18 A. Yes.

350:19 Q. And what you would do is you

350:20 would perform a DPOAE measurement of the

350:21 subjects before they fired any rounds on a

350:22 given day?

350:23 A. Right.

350:24 Q. Then they would fire the 54

350:25 rounds, and then you would perform another

351:01 DPOAE measurement?

351:02 A. Correct.

351:03 Q. And then also that same day,

351:04 you would perform an audiogram?

351:05 A. Yes.

351:06 - 352:01 Babeu, Lorraine 2020-03-10 1:21

351:06 Q. And if you go back to page 7,

351:07 under Results it says, "By the end of the

351:08 study, each subject had worn each type of

351:09 hearing protection three times during the

351:10 course of the study."

351:11 Is that correct?

351:12 A. Yes.

351:13 Q. And the three hearing

351:14 protection devices were the Combat Arms

351:15 yellow end, the Combat Arms green end, and

351:16 the Peltor ComTac earmuff?

351:17 A. (Witness nods head.)

351:18 Q. So as a result of the study,

351:19 each subject would have -- during the study

351:20 would have worn the Combat Arms Earplug three

351:21 times, the Combat Arms green three times, and

351:22 the Peltor ComTac earmuff three times?

351:23 A. Yes.

351:24 Q. And would they -- for example,

351:25 on a given day, would they only wear one type

352:01 of hearing protection device?

352:05 - 353:01 Babeu, Lorraine 2020-03-10 1:53

352:05 Q. During your study?

352:06 A. Yes, because they only fired

352:07 once. Live fire is what we're talking about.

352:08 Q. Okay. So just so that I

352:09 understand, for one of the subjects -- let's

352:10 do one subject.

352:11 A. Uh-huh.

352:12 Q. Would it be -- the setup be for

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 269 of 345
352:13 one hypothetical subject that you would have

352:14 that -- you would bring the subject in, you

352:15 would measure the DPOAE amplitudes, the

352:16 subject would put on a Combat Arms yellow

352:17 earplug, they would fire 54 rounds, then you

352:18 would perform a DPOAE amplitude measurement

352:19 after that?

352:20 A. Correct.

352:21 Q. And so for each day, they were

352:22 firing 56 rounds with a given hearing

352:23 protector?

352:24 A. Yeah, 56 or 54. I'm not sure

352:25 which.

353:01 Q. 54.

353:02 - 353:04 Babeu, Lorraine 2020-03-10 0:13

353:02 A. Okay.

353:03 Q. On page 5.

353:04 A. Okay.

353:08 - 353:08 Babeu, Lorraine 2020-03-10 0:17

353:08 Q. I'm going to hand you what has

353:08 - 353:11 Babeu, Lorraine 2020-03-10 1:34

353:08 Q. I'm going to hand you what has

353:09 been marked as Exhibit Number 9 to your

353:10 deposition, which is an e-mail exchange back

353:11 in 2004 plus an attachment.

353:11 - 353:13 Babeu, Lorraine 2020-03-10 0:23

353:11 in 2004 plus an attachment.

353:12 It bears Bate Stamp

353:13 Number 3M_MDL13301 through 13305.

355:24 - 356:09 Babeu, Lorraine 2020-03-10 0:28

355:24 Q. So my question is: Do you

355:25 recall in 2004 receiving feedback from

356:01 soldiers stating or suggesting that they

356:02 needed better instructions for using the

356:03 Combat Arms Earplug version 2?

356:04 A. I don't recall.

356:05 Q. Okay. Do you remember at any

356:06 time receiving any feedback from soldiers

356:07 that there needed to be better instructions

356:08 for inserting or using the Combat Arms

356:09 Earplug version 2?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 270 of 345
356:12 - 356:13 Babeu, Lorraine 2020-03-10 0:08

356:12 THE WITNESS: No, I don't

356:13 recall.

357:06 - 357:06 Babeu, Lorraine 2020-03-10 0:06

357:06 Do you see that? So page 5.

358:06 - 358:09 Babeu, Lorraine 2020-03-10 0:16

358:06 Q. Okay. While you were at the

358:07 Army Research Laboratory, did you ever advise

358:08 any of your superiors that you believe the

358:09 Combat Arms Earplug version 2 was defective?

358:12 - 359:01 Babeu, Lorraine 2020-03-10 1:38

358:12 THE WITNESS: I don't think so.

358:13 QUESTIONS BY MR. FIELDS:

358:14 Q. Okay. Did you ever tell any of

358:15 your superiors at the Army Research

358:16 Laboratory that you believed that the Combat

358:17 Arms Earplug version 2 did not perform

358:18 satisfactorily?

358:19 A. No, I don't think so.

358:20 Q. While you were with the Army

358:21 Research Laboratory, did you ever tell anyone

358:22 in the US government or the US military that

358:23 you believed the Combat Arms Earplug

358:24 version 2 did not satisfactorily attenuate

358:25 sound for soldiers?

359:01 A. No.

394:09 - 395:12 Babeu, Lorraine 2020-03-10 1:04

394:09 Q. One of the statements that you

394:10 were asked about is at the bottom of the

394:11 discussion section. It says, "This could be

394:12 an indication that although hearing

394:13 protection was in place, the outer hair cells

394:14 were affected in some way by the exposure to

394:15 impulse noise."

394:16 A. Correct.

394:17 Q. "At this juncture, this is

394:18 speculation, and it is not clear what the

394:19 pattern is indicative of, but it is certainly

394:20 worth noting."

394:21 Do you see that?

394:22 A. Yes.

394:23 Q. At any point in time did you

394:24 perform any additional research to determine

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 271 of 345
394:25 whether or not the conclusions that I just

395:01 read were anything more than speculation?

395:02 A. No.

395:03 Q. In the summary section on the

395:04 bottom of -- near the middle of page 10, last

395:05 sentence, it says, "However, there was a

395:06 trend that appears to indicate there is an

395:07 effect of the level-dependent hearing

395:08 protection on the DPOAE amplitude. This

395:09 trend warrants continued study."

395:10 Do you see that?

395:11 A. Yes.

395:12 Q. After this study, did you

395:13 - 395:16 Babeu, Lorraine 2020-03-10 0:10

395:13 continue studying DPOAE amplitudes to

395:14 determine whether or not this was a real

395:15 trend?

395:16 A. No.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 272 of 345
Pltf Objections 3M Objections Rulings

8:03 - 9:01 Hamer, Jeffrey 2019-12-18 1:42

8:03 Q. Mr. Hamer, could you please

8:04 state your name for the record?

8:05 A. Jeffrey Lee Hamer.

8:06 Q. And where do you work?

8:07 A. 3M.

8:08 Q. What do you do for 3M?

8:09 A. I'm the laboratory manager for

8:10 hearing protection.

8:11 Q. Is that your title?

8:12 A. Global laboratory manager.

8:13 Q. You're the global laboratory

8:14 manager?

8:15 A. That's correct.

8:16 Q. Does that mean that you manage

8:17 all of the laboratories at 3M as worldwide?

8:18 A. For hearing solutions.

8:19 Q. For hearing solutions.

8:20 How many labs do you have?

8:21 A. Two labs; one in Vdrnamo,

8:22 Sweden, one in Indianapolis.

8:23 Q. One in where?

8:24 A. Indianapolis.

8:25 Q. And Sweden?

9:01 A. And Sweden, correct.

10:05 - 10:09 Hamer, Jeffrey 2019-12-18 0:15

10:05 Q. Okay. So as far as you know,

10:06 all of the testing that's been done of all of

10:07 the versions of the Combat Arms has been done

10:08 in Indianapolis?

10:09 A. 3M testing, yes.

10:10 - 10:11 Hamer, Jeffrey 2019-12-18 0:02

10:10 Q. 3M testing. 3M or Aearo?

10:11 A. Right.

10:17 - 11:08 Hamer, Jeffrey 2019-12-18 1:34

10:17 Q. Now, there has been outside

10:18 testing of the Combat Arms done?

10:19 A. Correct.

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 273 of 345
10:20 Q. And who has done the outside

10:21 testing of the Combat Arms?

10:22 A. I have seen testing both from

10:23 an independent lab called Michaels &

10:24 Associates as well as from the Army Research

10:25 Lab and the Army in general. I'm not sure

11:01 specifically which labs, but they've tested

11:02 the product.

11:03 Q. Okay. Tell me how many labs

11:04 did NRR testing.

11:05 A. NRR testing, complete label

11:06 testing, I believe that Indianapolis and I

11:07 believe Michaels & Associates did a complete

11:08 test on it.

11:12 - 11:19 Hamer, Jeffrey 2019-12-18 0:10

11:12 Q. Now, speaking of litigation,

11:13 this is not your first deposition, is it?

11:14 A. It is not.

11:15 Q. You were deposed at least one

11:16 other time that I know of in the Moldex

11:17 litigation.

11:18 Do you recall that?

11:19 A. I do.

14:11 - 15:05 Hamer, Jeffrey 2019-12-18 1:50

14:11 Q. And you didn't make any

14:12 corrections to that deposition, did you?

14:13 A. I disagree.

14:14 Q. Oh, you did?

14:15 What did you correct?

14:16 A. I made a statement, I believe.

14:17 When I reread the transcript, I found some

14:18 typographical errors in it as well as tried

14:19 to clarify a statement I made about stopping

14:20 the test.

14:21 Q. Okay. Tell me what you

14:22 clarified when you did the read-and-sign

14:23 process on stopping the test.

14:24 A. So when you're performing a

14:25 label test, you have subjects that are

15:01 undergoing that test. And I believe at the

15:02 time I was interpreting the question as, do

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 274 of 345
15:03 you stop a test during a subject's particular

15:04 test, and my answer was no. And so that's

15:05 what I was trying to clarify.

16:01 - 16:15 Hamer, Jeffrey 2019-12-18 0:27

16:01 Q. And how did you -- did you

16:02 recast the context in some way?

16:03 A. I tried to, yes.

16:04 Q. And how did you do that? Like

16:05 you made one statement in the deposition; you

16:06 corrected it.

16:07 Tell me -- explain to me what

16:08 you corrected.

16:09 A. I was trying to correct my

16:10 statement, as I did in further testimony

16:11 during that same deposition, to try to

16:12 correct the interpretation that I had about

16:13 whether it was a subject -- stopping a

16:14 particular subject or stopping the test in

16:15 general.

21:10 - 21:20 Hamer, Jeffrey 2019-12-18 0:11

21:10 You went to Monroe Catholic

21:11 High School?

21:12 A. Monroe Catholic Central, that's

21:13 correct.

21:14 Q. Monroe Catholic Central.

21:15 Are you from Monroe?

21:16 A. That's where I would say I grew

21:17 up.

21:18 Q. Okay.

21:19 A. Oh, from the time I was about

21:20 12 years old.

22:04 - 22:11 Hamer, Jeffrey 2019-12-18 0:07

22:04 Q. And then you went to Michigan

22:05 Tech?

22:06 A. I did.

22:07 Q. And you got a degree in

22:08 engineering?

22:09 A. I did.

22:10 Q. Mechanical engineering?

22:11 A. Correct.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 275 of 345
45:24 - 46:01 Hamer, Jeffrey 2019-12-18 0:04

45:24 Have you ever worked for a Re: [45:24 to 46:01]

45:25 company that sold a product it had never Pltf Obj 802, lack of

46:01 tested? foundation, 403

46:03 - 46:06 Hamer, Jeffrey 2019-12-18 0:06

46:03 THE WITNESS: I believe that we Re: [46:03 to 46:06]

46:04 sold this product in here with the Pltf Obj 802, lack of

46:05 military, so we were selling it to the foundation, 403

46:06 military, who tested the product.

62:05 - 63:23 Hamer, Jeffrey 2019-12-18 2:52

62:05 Q. And Exhibit 7 is the one where

62:06 they're folding back the flanges to get -- to

62:07 allow a deeper insertion of the green end of

62:08 the plug, right?

62:09 A. Correct.

62:10 Q. And so three days later,

62:11 Elliott Berger sends to Brian Myers the

62:12 following e-mail, and it says, "Here are the

62:13 data on the UltraFit end of the Combat Arms.

62:14 Note the original study was stopped with

62:15 eight subjects. The second study was with

62:16 folded-back flanges on the end sticking out

62:17 of the ear." He asked the question, "Should

62:18 I share this with Ohlin? It looks like the

62:19 existing product has problems unless the user

62:20 instructions are revised."

62:21 Did I read that right?

62:22 A. You did.

62:23 Q. Okay. You know Doug Ohlin to

62:24 be at the time one of the company contacts

62:25 with CHPPM, the hearing protection outfit for

63:01 the department of the Army, right?

63:02 A. I believe that's correct.

63:03 Q. Doug Ohlin actually ended his

63:04 career with 3M, didn't he?

63:05 A. He was a consultant.

63:06 Q. Yeah.

63:07 Did you work with Doug Ohlin

63:08 when he worked with 3M?

63:09 A. Yes, he was there when I joined

FOUNDATION OBJECTION 

WITHDRAWN, 3/11/2021;

REMAINING OBJECTIONS 

SUSTAINED

FOUNDATION OBJECTION 

WITHDRAWN, 3/11/2021;

REMAINING OBJECTIONS 

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 276 of 345
63:10 the company for a short period of time.

63:11 Q. What Elliott is pointing out

63:12 three days after 017 is completed is that the

63:13 existing product, the Combat Arms version 2,

63:14 has problems, right?

63:15 A. He's pointing out that the test

63:16 method that was used differed in two

63:17 different tests.

63:18 Q. Where is he doing that?

63:19 A. He said, "Here are the data.

63:20 Note the original study was stopped with

63:21 eight subjects. Second study was with

63:22 folded-back flanges," implying the first

63:23 study was not with folded-back flanges.

64:12 - 66:02 Hamer, Jeffrey 2019-12-18 1:29

64:12 Q. Okay. And so you're pointing Re: [65:05 to 66:02]

64:13 out that Elliott is informing Brian in Pltf Obj unresponsive, lacks

64:14 marketing, among other things, that the foundation, 702 expert opinion

64:15 product was tested two different ways? from a non expert; 403

64:16 A. I believe so.

64:17 Q. All right. And after he says,

64:18 "Should I share this with Ohlin," this is the

64:19 part I was focusing on, it says, "The

64:20 existing product has problems."

64:21 Right?

64:22 A. Depending on what instructions

64:23 he used.

64:24 Q. Yes. No, I wasn't -- I was

64:25 going finish that, but then I look at the

65:01 sort of two clauses. It says, "It looks like

65:02 the existing product has problems," and then

65:03 there's an "unless," right?

65:04 A. That's correct.

65:05 Q. So as existed, as it exists

65:06 without changing the instructions, the

65:07 product has a problem, right?

65:08 A. The instructions have a problem

65:09 in the use of the product, that's correct.

65:10 Q. What's that?

65:11 A. I don't believe the product has

65:12 a problem. I think the instructions for use

65:13 had a problem.

SUSTAINED - Lack of personal 

knowledge/foundation

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 277 of 345
65:14 Q. You mean the existing

65:15 instructions for use?

65:16 A. The instructions that were used

65:17 in the first test.

65:18 Q. Okay. So then he says, "We

65:19 have to" -- "unless the user instructions are

65:20 revised," right?

65:21 A. Correct.

65:22 Q. So he seems to imply that we

65:23 can cure the problem with the product by

65:24 revising instructions?

65:25 A. We can -- we can optimize the

66:01 performance of the product by changing the

66:02 instructions.

77:01 - 77:08 Hamer, Jeffrey 2019-12-18 0:19

77:01 Q. Do you know whether there's any

77:02 version of your instructions for use that

77:03 tell the user that the plug is too short for

77:04 proper insertion if you don't roll back the

77:05 flanges?

77:06 A. Not to my knowledge.

77:07 Q. That's exactly what they should

77:08 have been told, isn't it?

77:10 - 77:10 Hamer, Jeffrey 2019-12-18 0:01

77:10 THE WITNESS: I don't agree.

77:12 - 77:18 Hamer, Jeffrey 2019-12-18 0:14

77:12 Q. Well, how come? How come

77:13 they're not entitled to know that?

77:14 A. Well, I believe that they were

77:15 entitled to know that if they couldn't get

77:16 the proper fit of the earplug, that they

77:17 could roll back a flange to get --

77:18 potentially get better insertion.

83:02 - 83:05 Hamer, Jeffrey 2019-12-18 0:10

83:02 Does anywhere in your Re: [83:02 to 83:05]

83:03 instructions do you -- do you tell the user Pltf Obj nonresponsive answer

83:04 that the only way we got an NRR of 22 is by

83:05 folding back the flanges?

OBJECTION WITHDRAWN, 

3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 278 of 345
83:07 - 83:10 Hamer, Jeffrey 2019-12-18 0:06

83:07 THE WITNESS: I believe the Re: [83:07 to 83:10]

83:08 instructions tell the user to get -- Pltf Obj nonresponsive

83:09 potentially to get a better fit, they

83:10 could fold back the flanges.

83:17 - 84:13 Hamer, Jeffrey 2019-12-18 1:43

83:17 Anywhere in your instructions Re: [83:17 to 84:13]

83:18 do you tell the user, "The only way that we Pltf Obj nonresponsive,

83:19 obtained an NRR of 22 is by folding back the foundation

83:20 flanges"?

83:21 A. I don't agree that that's the

83:22 only way.

83:23 Q. In this test?

83:24 A. Yeah. I don't know that they

83:25 folded back the flanges on every subject.

84:01 Q. How many did they fold them

84:02 back on?

84:03 A. I don't know the answer.

84:04 Q. What do they say?

84:05 A. They said they folded back the

84:06 flanges.

84:07 Q. On the subjects, right?

84:08 Subjects plural?

84:09 A. Right.

84:10 When I look at the test data

84:11 that I've seen before this, the notes of that

84:12 suggest that every subject's -- every subject

84:13 was not necessarily folded back.

100:09 - 100:13 Hamer, Jeffrey 2019-12-18 0:15

100:09 Q. Okay. Now, just as a threshold Re: [100:09 to 100:13]

100:10 matter, is that a proper way to do an NRR Pltf Obj 701, foundation,

100:11 test, that is, to watch the variability as it

100:12 comes across in realtime and then fold

100:13 flanges back if it happens?

100:15 - 100:18 Hamer, Jeffrey 2019-12-18 0:09

100:15 THE WITNESS: If the Re: [100:15 to 100:18]

100:16 instructions indicate a tip that could Pltf Obj 701, foundation,

100:17 get better seal, that would be speculation, 403

100:18 appropriate.

OBJECTION WITHDRAWN, 

3/12/2021

SUSTAINED

SUSTAINED - Improper lay 

opinion testimony

SUSTAINED - Improper lay 

opinion testimony

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 279 of 345
106:13 - 106:20Hamer, Jeffrey 2019-12-18 0:10

106:13 Q. Yeah.

106:14 On a break we pulled your

106:15 errata sheet.

106:16 A. Okay.

106:17 Q. Do you have the errata sheet in

106:18 front of you that you reviewed in 

preparation

106:19 for your deposition?

106:20 A. I do not.

106:23 - 106:24 Hamer, Jeffrey 2019-12-18 0:00

106:23 (Hamer Exhibit 11 marked for

106:24 identification.)

107:02 - 107:15 Hamer, Jeffrey 2019-12-18 1:38

107:02 Q. Is this Exhibit 11?

107:03 Exhibit 11 is the errata sheet

107:04 from your deposition. The first page is your

107:05 signature page where you say, "I, Jeffrey Lee

107:06 Hamer, state that I have read the foregoing

107:07 transcript of the testimony given by me at my

107:08 videotaped deposition on October 7, 2015, and

107:09 that said transcript constitutes a true and

107:10 correct record of the testimony given by me

107:11 at said videotaped deposition except as I

107:12 have so indicated on the errata sheets

107:13 provided herein," and then you sign Jeffrey

107:14 Lee Hamer, don't you?

107:15 A. Correct.

107:16 - 108:07Hamer, Jeffrey 2019-12-18 1:42

107:16 Q. And then if you flip over,

107:17 we'll see the things that you changed. And

107:18 as you described to me in your testimony, it

107:19 was mostly typos, but there's a couple of

107:20 things I want to bring to your attention.

107:21 The first one is 13.

107:22 A. Okay.

107:23 Q. Do you see your 13th errata

107:24 sheet change?

107:25 A. I do.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 280 of 345
108:01 Q. Maybe the best way to do this

108:02 is to look at the original page.

108:03 Can we queue that up? Do we

108:04 have a videotape of that clip? Let's queue

108:05 that up.

108:06 And for the record, it's

108:07 page 89 of your deposition.

109:14 - 109:18Hamer, Jeffrey 2019-12-18 0:18

109:14 So page 89, lines 8 and 9.

109:15 Just put the whole page up. Actually,

109:16 the top of page 88 and 89 is what we

109:17 need to put up there. There we go.

109:18 Much easier.

109:20 - 110:16 Hamer, Jeffrey 2019-12-18 1:46

109:20 Q. So at the bottom of page 88 the

109:21 question starts, Mr. Hamer. It says: "Okay.

109:22 And is it your practice, if you either change

109:23 a product or change the way it's being, for

109:24 example, fitted, then you would do a retest?"

109:25 And you asked the question:

110:01 "Fitted?"

110:02 Question: "Yeah.

110:03 "Explain 'fitted' to me."

110:04 He says: "Well, how the

110:05 person's being instructed to put it in."

110:06 You answer: "No."

110:07 He says: "No, what?

110:08 "We would not redo a label test

110:09 due to a new fitting instruction."

110:10 Is that statement true?

110:11 A. I believe I corrected that in

110:12 my errata.

110:13 Q. Okay.

110:14 A. That I didn't recollect an

110:15 instance where we had done that, but indeed

110:16 we have.

110:17 - 111:25Hamer, Jeffrey 2019-12-18 2:35

110:17 Q. Okay. And let's see what your

110:18 errata sheet actually said. And can we go to

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 281 of 345
110:19 the ELMO? Because I've got it here.

110:20 Here under 13 it says, "I

110:21 didn't" -- your correction was, 88, 8 and 9:

110:22 "I did not recollect an instance where we 

had

110:23 changed fitting instructions resulting in a

110:24 retest, as this was a historical event from

110:25 my perspective."

111:01 Right?

111:02 A. That's what I wrote, yes.

111:03 Q. So how does that change your

111:04 answer?

111:05 A. It doesn't change my answer. I

111:06 mean, it does -- I'm sorry, it does change my

111:07 answer in that I, at the time, did not

111:08 recollect an instance that we did that, so my

111:09 answer was incorrect.

111:10 Q. Okay. But you said this was

111:11 a -- retest was a historical event.

111:12 What does that mean?

111:13 A. That I was thinking about this

111:14 particular test, not future -- not current or

111:15 future tests that I was aware of.

111:16 Q. I'm not following you. It may

111:17 be me.

111:18 A. I mean, when I said "a

111:19 historical event," it was a event that was

111:20 history to me, not realtime, so that I wasn't

111:21 there when it happened.

111:22 Q. Okay. But I don't understand

111:23 the question to be asking what you're

111:24 answering, but I want to make sure I'm

111:25 understanding you.

112:01 - 112:12 Hamer, Jeffrey 2019-12-18 0:28

112:01 You say, "We would not redo a

112:02 label test due to new fitting instructions,"

112:03 right? That's your testimony?

112:04 A. That's how I answered that

112:05 question, yes.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 282 of 345
112:06 Q. Yes.

112:07 And is that not true?

112:08 A. I was incorrect.

112:09 Q. Okay. So your company will

112:10 redo label tests due to new fitting

112:11 instructions?

112:12 A. Yes, we will.

112:13 - 112:19Hamer, Jeffrey 2019-12-18 0:12

112:13 Q. Okay. Where is that in your

112:14 policy and procedure manual?

112:15 A. I'd have to go through it. I

112:16 don't know if it's there or not, to be sure.

112:17 Q. You know actually it's not

112:18 there, don't you?

112:19 A. I do not.

112:23 - 113:06Hamer, Jeffrey 2019-12-18 1:48

112:23 Q. Okay. Well, let's do just

112:24 that. I'm going to mark this as the next

112:25 exhibit. This is your company policy and

113:01 procedure manual. This was attached to

113:02 Elliott Berger's deposition as Exhibit 5206.

113:03 It'll be Exhibit 12 -- 13, 13 to this

113:04 deposition.

113:05 (Hamer Exhibit 13 marked for

113:06 identification.)

114:24 - 115:05Hamer, Jeffrey 2019-12-18 0:15

114:24 Q. That all may be true. My

114:25 question is related to your policy and

115:01 procedure manual and why it's not in there,

115:02 why the last part about doing a retest due to

115:03 changing fitting instructions is not in your

115:04 manual.

115:05 A. I do not know the answer.

118:02 - 118:04 Hamer, Jeffrey 2019-12-18 0:03

118:02 Q. Is that the industry standard Re: [118:02 to 118:04]

118:03 with hearing protection devices; do you know Pltf Obj unresponsive,

118:04 that? foundation, speculation

OVERRULED

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118:06 - 118:10 Hamer, Jeffrey 2019-12-18 0:23

118:06 THE WITNESS: I don't believe Re: [118:06 to 118:10]

118:07 there is a standard on that. I don't Pltf Obj unresponsive,

118:08 believe any of the guidance documents foundation, speculation

118:09 from EPA or ANSI indicate reasons for

118:10 retest.

122:10 - 123:01 Hamer, Jeffrey 2019-12-18 1:33

122:10 It is true that you are not

122:11 supposed to stop a labeling test in the

122:12 middle just because you're getting low

122:13 numbers or variability?

122:14 A. I would say that's not true.

122:15 Q. Okay. Do you remember being

122:16 asked that question in your previous

122:17 deposition?

122:18 A. I do.

122:19 Q. Do you remember what your

122:20 answer was?

122:21 A. I believe I answered in an

122:22 opposite way because I believe that I was --

122:23 my recollection of my understanding of the

122:24 question at that time was that it was

122:25 associated with stopping a particular

123:01 subject's test in the middle of it.

123:02 - 123:13Hamer, Jeffrey 2019-12-18 0:24

123:02 Q. And when did you come to that

123:03 understanding that you just gave us?

123:04 A. When I did the errata sheet.

123:05 Q. Where on the errata sheet do

123:06 you change that testimony from what it was,

123:07 yes, to no?

123:08 A. Where was that in my deposition

123:09 in terms of the --

123:10 Q. Yeah, let me set the table for

123:11 you.

123:12 Can we have the -- the ELMO,

123:13 please?

123:14 - 124:09 Hamer, Jeffrey 2019-12-18 1:39

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 284 of 345
123:14 This is page 173 of your Re: [123:14 to 124:01]

123:15 deposition. It says: "And isn't it your Pltf Obj non responsive

123:16 testimony that you're not supposed to stop a

123:17 labeling test in the middle just because

123:18 you're getting low numbers or variability?"

123:19 And you answered "yes," didn't

123:20 you?

123:21 A. Right.

123:22 And "labeling test" in the

123:23 middle, in my interpretation when I made that

123:24 statement, was during the middle of a

123:25 subject's test. That was my interpretation.

124:01 That's what I answered yes to.

124:02 Q. Oh, okay.

124:03 So, but I'm -- before we get to

124:04 that, I heard you say that you changed it on

124:05 the errata sheet.

124:06 Now, I have the errata sheet --

124:07 A. I didn't, because I didn't

124:08 believe it was wrong. I was wrong -- I was

124:09 incorrect.

124:10 - 125:06Hamer, Jeffrey 2019-12-18 1:55

124:10 Q. Okay. So at the time, and even

124:11 after you read your deposition and you 

signed

124:12 it as being true and correct, you believed

124:13 your answer there was true, that it would

124:14 have been -- that you're not supposed to 

stop

124:15 a labeling test in the middle just because

124:16 you're getting low numbers or variability?

124:17 A. That it was true. And my

124:18 context of that was during a subject test.

124:19 That was the context I answered the 

question

124:20 under.

124:21 Q. Well, I want to make sure I

124:22 understand this.

124:23 The question is, you're not

124:24 supposed to stop a labeling test in the

124:25 middle just because you're getting low

125:01 numbers or variability?

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 285 of 345
125:02 A. A labeling test is -- a subject

125:03 is undergoing a test, okay? And so that

125:04 subject is responding, taking a test, and

125:05 you're not supposed to stop that in the

125:06 middle of it.

124:23 - 125:12 Hamer, Jeffrey 2019-12-18 1:30

124:23 The question is, you're not

124:24 supposed to stop a labeling test in the

124:25 middle just because you're getting low

125:01 numbers or variability?

125:02 A. A labeling test is -- a subject

125:03 is undergoing a test, okay? And so that

125:04 subject is responding, taking a test, and

125:05 you're not supposed to stop that in the

125:06 middle of it.

125:07 Q. When are you allowed to stop

125:08 it?

125:09 A. At any point in time.

125:10 Q. Why not that time?

125:11 A. Because it's during the middle

125:12 of a subject evaluation.

125:13 - 126:13Hamer, Jeffrey 2019-12-18 1:45

125:13 Q. Why does that make any

125:14 difference?

125:15 A. It's just our policy, is not to

125:16 stop at that point.

125:17 Q. What point is your policy you

125:18 can stop?

125:19 A. At any point in time when --

125:20 after -- after subjects are completely

125:21 tested.

125:22 Q. What does "completely tested"

125:23 mean?

125:24 A. They've gone through the whole

125:25 test sequence for that subject for that

126:01 product.

126:02 Q. Okay. I'm having trouble

126:03 understanding you.

126:04 A. There's ten subjects.

126:05 Q. Yes.

126:06 A. Each subject has multiple fits

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 286 of 345
126:07 and tests.

126:08 Q. Three.

126:09 A. And you're not -- my -- the

126:10 policy, as I understood it, was that while a

126:11 subject is under test, you should not stop

126:12 the test at that point during that testing

126:13 sequence.

126:14 - 126:19 Hamer, Jeffrey 2019-12-18 0:10

126:14 Q. Okay. This question doesn't

126:15 say anything about subjects, though, right?

126:16 A. It says "during the test." My

126:17 interpretation was while the test was

126:18 occurring, while a particular data was being

126:19 collected.

127:19 - 127:21 Hamer, Jeffrey 2019-12-18 0:06

127:19 Q. When did you come to the Re: [127:19 to 127:21]

127:20 realization that the answer you gave here Pltf Obj Vague, incomplete

127:21 needed clarification? designation, 402/403,

127:23 - 128:08 Hamer, Jeffrey 2019-12-18 0:29

127:23 THE WITNESS: Upon -- upon -- I

127:24 mean, I think there's other places in

127:25 this -- in this -- in this deposition

128:01 where this line of questioning came

128:02 up, and I think even -- even further

128:03 into this document, this question

128:04 comes up again. And I tried to

128:05 correct it by saying we could -- we

128:06 could change the fitting instructions

128:07 to do a retest. Or to start a new

128:08 test.

128:10 - 129:02 Hamer, Jeffrey 2019-12-18 1:46

128:10 Q. Okay. Fitting instructions

128:11 issue is different than this to me.

128:12 Is it different to you?

128:13 A. To me this is, when can you

128:14 stop a label test, and the answer is, you can

128:15 stop a label test at any point in time that

128:16 you wish to. You don't have to complete any

128:17 test, but -- any complete labeling test, but

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 287 of 345
128:18 that you shouldn't stop during the testing of

128:19 an individual subject.

128:20 Q. Okay. Okay. Why not? If you

128:21 can stop a test at any time, at any time, why

128:22 does it matter whether you stop it in the

128:23 middle of one?

128:24 A. Okay. So you might pick this

128:25 test back up after you stop it, and if you do

129:01 that, you need to have completed every

129:02 subject or you can't start it over.

129:03 - 130:03Hamer, Jeffrey 2019-12-18 1:21

129:03 Q. So let me understand this.

129:04 Are you saying that you need to

129:05 have completed all three tests for that

129:06 subject? Re: [129:08 to 129:16]

129:07 A. Yes. Def Obj Foundation (602); 701

129:08 Q. Okay. So if I'm subject

129:09 number 1, right, I'm the first person tested, Re: [129:24 to 130:03]

129:10 you're saying that I cannot stop a labeling Def Obj Foundation (602);

129:11 test until I have had all three tests done on vague, misstates (611, 403)

129:12 a label test?

129:13 MR. MORRISS: Object to form.

129:14 THE WITNESS: Our policy was

129:15 not to stop a test in the middle for a

129:16 given subject.

129:17 QUESTIONS BY MR. TRACEY:

129:18 Q. Okay. Does that mean you can't

129:19 stop a test, change the instructions and

129:20 start again?

129:21 A. You can't stop the test, change

129:22 the instructions and not redo this -- the

129:23 test from the beginning.

129:24 Q. Okay. Is it fair to say that

129:25 everybody who is undergoing a label test

130:01 ought to use the same instructions?

130:02 MR. MORRISS: Object to form.

130:03 THE WITNESS: Yes.

130:15 - 130:17 Hamer, Jeffrey 2019-12-18 0:05

130:15 Okay. Mr. Hamer, it's your

130:16 opinion that testing this product with the

130:17 flanges folded back is improper, isn't it?

OVERRULED

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 288 of 345
130:19 - 130:19 Hamer, Jeffrey 2019-12-18 0:02

130:19 THE WITNESS: It is not.

130:21 - 130:25 Hamer, Jeffrey 2019-12-18 0:06

130:21 Q. It is not improper?

130:22 A. That's correct.

130:23 Q. Do you remember making a

130:24 statement to the contrary in your previous

130:25 deposition?

131:02 - 131:05 Hamer, Jeffrey 2019-12-18 0:07

131:02 THE WITNESS: I remember a line

131:03 of questioning that was revolving

131:04 around the instruction set that was

131:05 handed to me at that time.

131:06 - 131:09Hamer, Jeffrey 2019-12-18 0:06

131:06 QUESTIONS BY MR. TRACEY:

131:07 Q. Okay. And let me just -- let

131:08 me put this on the ELMO so we can make 

sure

131:09 we're clear.

132:11 - 133:10 Hamer, Jeffrey 2019-12-18 1:28

132:11 Q. Okay. Go ahead. Play it.

132:12 (Video played.)

132:13 Q. Is that statement true?

132:14 A. Based on the instruction set

132:15 that I was looking at at the time of the

132:16 product they provided, it did not indicate a

132:17 tip or an instruction to roll back the

132:18 flange.

132:19 Q. I don't see a question about

132:20 instructions in this question. This question

132:21 appears to be --

132:22 A. There was an exhibit that was

132:23 handed to me prior to this --

132:24 Q. I see.

132:25 A. -- that had instructions and

133:01 NRR label on the back of the panel, and an

133:02 insert for it that had the user instructions

133:03 for the product that did not include rolling

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 289 of 345
133:04 back the flanges.

133:05 Q. And tell me the importance of

133:06 that.

133:07 A. That if you want to apply the

133:08 NRR label test that was being used, that that

133:09 tip or that instruction should have been

133:10 included.

140:15 - 140:19 Hamer, Jeffrey 2019-12-18 0:21

140:15 Q. Okay. Do you believe that when

140:16 Aearo found out in 2000 that this plug was

140:17 pulling out, they should have stopped selling

140:18 the product until they figured out the

140:19 problem?

140:21 - 140:22 Hamer, Jeffrey 2019-12-18 0:02

140:21 THE WITNESS: No, not

140:22 necessarily.

140:24 - 141:01Hamer, Jeffrey 2019-12-18 0:05

140:24 Q. Do you remember making a Re: [140:24 to 141:05]

140:25 statement to the contrary in your deposition

Def Obj vague, misstates,

141:01 in 2015? argumentative (611, 403); 403

141:03 - 141:05Hamer, Jeffrey 2019-12-18 0:04

141:03 THE WITNESS: I do not, but

141:04 I'm -- we'd have to go through it and

141:05 look at it.

141:07 - 141:12 Hamer, Jeffrey 2019-12-18 1:39

141:07 Q. Let's do just that. This is Re: [141:07 to 141:12]

141:08 page 175. Pltf Obj Foundation,

141:09 We have the cut. Okay. Let me arguementative, misstates, 802

141:10 give him -- 175, starting where, Kenny.

141:11 Line 22, Mr. Hamer.

141:12 Let's play that.

141:13 - 141:13Hamer, Jeffrey 2019-12-18 0:00

141:13 (Video played.) Re: [141:13 to 141:13]

Def Obj vague, misstates,

OVERRULED

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 290 of 345
argumentative (611, 403);

foundation (602); 403

141:17 - 142:07Hamer, Jeffrey 2019-12-18 1:30

141:17 QUESTIONS BY MR. TRACEY: Re: [141:17 to 142:05]

141:18 Q. Is that statement true? Def Obj vague, misstates,

141:19 A. Yes, I agree. argumentative (611, 403);

141:20 Q. That they should have stopped foundation (602); 403

141:21 selling the plug?

141:22 A. Oh, no, I'm sorry. I'm Re: [142:06 to 142:07]

141:23 responding to the wrong lawyer. Def Obj Relevance (401, 402)

141:24 I said: "I don't know that

141:25 they didn't."

142:01 And then: "If they didn't,

142:02 don't you think that would have been 

wrong?"

142:03 And I said: "If they didn't,

142:04 if they did not, yes, it would have been

142:05 wrong."

142:06 Q. Let's go to the ELMO so we can

142:07 see where he's reading along -- with him.

142:08 - 143:04 Hamer, Jeffrey 2019-12-18 1:54

142:08 So starting at the bottom here: Re: [142:24 to 143:04]

142:09 "Don't you think in 2000 when 3M found this Pltf Obj nonresponsive

142:10 problem with this plug pulling out, they

142:11 should have stopped" -- and then at the top

142:12 of page 176 -- "figured out what it was and

142:13 stopped selling it until they solved it?"

142:14 Your answer was: "I don't know

142:15 that they didn't."

142:16 And then the question is:

142:17 "Even if they didn't, don't you think that

142:18 would have been wrong?"

142:19 And you said: "If they did

142:20 not, yes."

142:21 That's what you testified to in

142:22 your previous deposition.

142:23 A. That's correct.

142:24 Q. Is that statement still true?

142:25 A. I'm just trying to understand

143:01 the context of this questioning, because I

OVERRULED

SUSTAINED - Nonresponsive

OVERRULED

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 291 of 345
143:02 believe we did stop the test, and we learned

143:03 how to fit the product better and provided

143:04 that information to the military.

196:19 - 197:05 Hamer, Jeffrey 2019-12-18 0:28

196:19 Q. How long have you been with the

196:20 company?

196:21 A. Since I rejoined the company in

196:22 2008 in this position.

196:23 Q. Were you with them before?

196:24 A. I was with what -- at the --

196:25 what at the time was E-A-R division of Cabot

197:01 Corporation, which became Aearo, which 3M

197:02 bought, from 1984 to 1997.

197:03 Q. '97 to 2007 you were gone?

197:04 A. In a different company,

197:05 correct.

278:07 - 278:18 Hamer, Jeffrey 2019-12-18 0:28

278:07 Q. And is it your belief that the Re: [278:07 to 278:18]

278:08 regulatory authorities know that you guys do Pltf Obj 602, speculation, 701

278:09 this and there's no problem with it? , 403, nonresponsive

278:10 A. I don't -- I don't understand

278:11 why that would matter to them, because we

278:12 would not market a product that we stopped

278:13 and didn't change something on.

278:14 Q. Either the instructions or the

278:15 product?

278:16 A. Or the design or the

278:17 manufacturing. It's not the same at that

278:18 point.

328:10 - 328:22 Hamer, Jeffrey 2019-12-18 1:33

328:10 Q. And as we sit here today, Re: [328:10 to 328:22]

328:11 20 years later, you have seen not one shred Pltf Obj non responsive,

328:12 of evidence in the form of anybody from your foundation, speculation, 802

328:13 company communicating the results of the hearsay, 403

328:14 flange report to the American military, have

328:15 you?

328:16 A. I believe that our fitting

328:17 instructions indicate a way to get better

328:18 seal on the product, and I believe that Doug

SUSTAINED - 402; 701

SUSTAINED 

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 292 of 345
328:19 Ohlin was involved in the development of this

328:20 product and the training of the soldiers that

328:21 were using this product and that he was --

328:22 that he had knowledge of that.

335:01 - 335:11Hamer, Jeffrey 2019-12-18 0:17

335:01 Q. Your company is in the best Re: [335:01 to 335:11]

335:02 position to train people how to use their Def Obj foundation (602); 701;

335:03 product, aren't they? vague (611, 403)

335:04 MR. MORRISS: Object to form.

335:05 THE WITNESS: I believe we have

335:06 a good position.

335:07 QUESTIONS BY MR. TRACEY:

335:08 Q. Well, you're the only -- you're

335:09 the only people that have access to the data

335:10 found in the flange report, right?

335:11 A. Yes.

335:12 - 335:15 Hamer, Jeffrey 2019-12-18 0:06

335:12 Q. And if we were going to train Re: [335:12 to 335:15]

335:13 soldiers on how to properly use your product, Pltf Obj nonresponsive,

335:14 we would want to use the data in the flange foundation, speculation, 802

335:15 report, wouldn't we? hearsay, 403

335:17 - 335:19 Hamer, Jeffrey 2019-12-18 0:04

335:17 THE WITNESS: Yeah, I believe Re: [335:17 to 335:19]

335:18 that Doug Ohlin and the military was Pltf Obj nonresponsive,

335:19 aware of that situation. foundation, speculation, 802

hearsay, 404

MOOT

SUSTAINED - Irrelevant; 

Speculative; Nonresponsive

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 293 of 345
Pltf Objections 3M Objections Rulings

5:23 - 6:05 Medina, Jesus 2020-10-09 0:14

5:23 Q. Good morning, Mr. Medina. My name is

5:24 Craig Castiglia, and I represent the defendants in

5:25 this case, which are 3M and some of the various

6:01 Aearo entities that were sued by people like

6:02 Mr. Hacker.

6:03 Would you please state your name for the

6:04 record.

6:05 A. Jesus Medina.

6:08 - 6:10 Medina, Jesus 2020-10-09 0:09

6:08 Q. Where are you currently employed?

6:09 A. For Boyd Gaming, and I'm at the location

6:10 of Suncoast Hotel and Casino right now.

7:24 - 8:05 Medina, Jesus 2020-10-09 0:12

7:24 Q. All right. And do you understand that we

7:25 are here today because of a lawsuit that Mr. Hacker

8:01 filed against 3M?

8:02 A. Yes.

8:03 Q. Have you ever communicated with

8:04 Mr. Hacker before?

8:05 A. No, I have not.

9:04 - 9:07 Medina, Jesus 2020-10-09 0:08

9:04 Q. And you understand that your testimony

9:05 today is on behalf of Boyd Gaming as if Boyd Gaming

9:06 was testifying today?

9:07 A. Yes.

12:03 - 12:06 Medina, Jesus 2020-10-09 0:10

12:03 Q. Okay. You said you're employed by the

12:04 Boyd Gaming Corporation. How long have you 

worked

12:05 there?

12:06 A. I worked with Boyd Gaming for 21 years.

12:12 - 15:03 Medina, Jesus 2020-10-09 4:44

12:12 Q. What positions have you held at the Boyd

12:13 Gaming Corporation and what position do you hold

12:14 today?

12:15 A. I've held kitchen helper, food runner,

12:16 line cook, banquet porter, human resources

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 294 of 345
12:17 representative, human resources coordinator, human

12:18 resources team member relations manager, human

12:19 resources HR manager, and my current position of

12:20 human resources director.

12:21 Q. And what are your responsibilities in

12:22 your current position as human resources director?

12:23 A. To oversee the daily operations of the HR

12:24 department, to make sure that departments are

12:25 following established policies and procedures,

13:01 guidelines, things of that nature.

13:02 Q. And what is the relationship between the

13:03 Boyd Gaming Corporation and the Suncoast Hotel and

13:04 Casino?

13:05 A. Suncoast is a property of Boyd Gaming

13:06 Corporation.

13:07 Q. Okay. And you're aware that the

13:08 plaintiff in this case, Stephen Hacker, worked for

13:09 Boyd Gaming at the Suncoast Hotel and Casino;

13:10 right?

13:11 A. Yes.

13:12 Q. Do you know when Mr. Hacker worked at the

13:13 casino?

13:14 A. I believe he was hired last year in 2019.

13:15 Q. And does he still work at the casino?

13:16 A. No, he does not.

13:17 Q. When did he stop working at the casino?

13:18 A. So the closure's due to the pandemic, the

13:19 property closed on March 17th and no employee was

13:20 working on property since then. Mr. Hacker's date

13:21 of separation was on July 14 of 2020.

13:22 Q. And where -- you already told me where

13:23 the Suncoast Hotel and Casino is.

13:24 How big is the casino?

13:25 A. What do you mean by "how big"?

14:01 Q. Well, size. You don't have to give me

14:02 the square footage, but what -- what services are

14:03 offered at the Suncoast Hotel and Casino?

14:04 A. There is 400-room hotel room. There is

14:05 close to 1800 slot machines, seven restaurants, you

14:06 know, the -- the pit area. What we call is the

14:07 table games area. There is close to 29 live games

14:08 on the pit floor so, I mean, it's pretty large, I

14:09 would say.

14:10 Q. Okay. And how many patrons can the

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 295 of 345
14:11 casino hold at one time?

14:12 A. That I would not be able to answer.

14:13 Q. Based on your experience working there,

14:14 could you give a rough estimate?

14:15 A. I mean, a full casino with full -- with

14:16 the hotel full. We also have a showroom, if the

14:17 showroom is full, all the restaurants full. I

14:18 mean, you are talking about thousands of people.

14:19 Q. Okay. I think you mentioned dining at

14:20 the casino. Are there bars in the casino?

14:21 A. Yes, there are three bars.

14:22 Q. And they serve alcohol in the casino?

14:23 A. Yes.

14:24 Q. Is there dining in the casino; is that

14:25 right?

15:01 A. Yes, there is dining in the casino.

15:02 Q. How many restaurants are in the casino?

15:03 A. Seven.

15:04 - 15:13 Medina, Jesus 2020-10-09 1:34

15:04 Q. Could you describe the layout of the

15:05 casino where the restaurants are in relation to the

15:06 gaming tables?

15:07 A. The restaurants are mostly located

15:08 towards the north end of the property. The table

15:09 games area is in the middle of the casino. So they

15:10 are not relatively close, I would say. There is --

15:11 you know, there is slot machines, there is a bar in

15:12 between -- in between the restaurants and the table

15:13 games area, I would say.

15:24 - 15:24 Medina, Jesus 2020-10-09 0:02

15:24 Q. Okay. How loud is the casino?

16:01 - 16:06 Medina, Jesus 2020-10-09 0:14

16:01 THE WITNESS: It would depend on what day

16:02 of the week, time, how many people are in the

16:03 casino and it varies.

16:04 BY MR. CASTIGLIA:

16:05 Q. At the peak hours of the casino, how loud

16:06 can it be?

16:08 - 16:17 Medina, Jesus 2020-10-09 0:25

16:08 THE WITNESS: I would say it gets pretty

16:09 loud. I mean, you are talking about a full casino.

16:10 The patrons can get pretty loud, I would say.

16:11 BY MR. CASTIGLIA:

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 296 of 345
16:12 Q. Does it get louder than your average

16:13 restaurant?

16:14 A. If the casino is full, is that what you

16:15 are asking?

16:16 Q. Yes.

16:17 A. Yes.

16:18 - 17:12 Medina, Jesus 2020-10-09 1:18

16:18 Q. And you mentioned that one of the largest

16:19 bars is near the table games, but I think you said

16:20 it was near the dice games. Is the largest bar

16:21 also near the blackjack table?

16:22 A. No.

16:23 Q. Are there any bars near the blackjack

16:24 table?

16:25 A. No.

17:01 Q. Where are the blackjack tables located in

17:02 relation to the slot machines and the bar?

17:03 A. So the blackjack tables are located on

17:04 the north -- northwest. No, they're west --

17:05 southwest part of the pit so they are -- there is

17:06 no bar near it, so the blackjack tables have -- to

17:07 the left of them, will have slot machines. To the

17:08 right of them, there is a walkway. And then on the

17:09 other side of that walkway is our Pai Gow tables,

17:10 which are sitdown table games and then the -- yeah,

17:11 the bar is not close by. You would have to still

17:12 get across the dice table games to get to the bar.

17:13 - 18:05 Medina, Jesus 2020-10-09 1:50

17:13 Q. Does the casino play any music?

17:14 A. Yes.

17:15 Q. What type of music?

17:16 A. It depends on the time of day. It can go

17:17 anywhere from, you know, 60s -- 50s and 60s music

17:18 to, you know, early morning and then late at night,

17:19 it can go into more pop modern music.

17:20 Q. Do they play music through speakers?

17:21 A. Yes, there is overhead speakers.

17:22 Q. Where are the speakers located?

17:23 A. On the ceiling of the casino.

17:24 Q. Are the speakers -- are there multiple

17:25 speakers throughout the casino floor?

18:01 A. Yes.

18:02 Q. Are there speakers near the blackjack

18:03 tables?

18:04 A. I mean, they are overhead in the ceiling,

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 297 of 345
18:05 yes.

19:22 - 21:02 Medina, Jesus 2020-10-09 2:38

19:22 Q. Do the slot machines that are near the

19:23 blackjack tables makes any noises?

19:24 A. Yes.

19:25 Q. What types of noises do they make?

20:01 A. Depending on which type of slot machine

20:02 is located, it could be an ongoing noise. If there

20:03 are guests playing the slot machines, you know,

20:04 noises will vary depending on the type of slot

20:05 machine and if someone is playing it or not.

20:06 Q. Do they make sounds like a bell or an

20:07 alarm?

20:08 A. Yes.

20:09 Q. And can you hear them when you are by the

20:10 table games?

20:11 A. If there is -- it all depends on who is

20:12 on the table game. You know, sometimes you have

20:13 table games that have several guests on them and

20:14 they can get the conversation -- their conversation

20:15 you -- you would block out or drown out any slot

20:16 noise. If it is an empty table game, I would say,

20:17 yes, you would be able to hear the slot noise.

20:18 Q. And why would conversation block or drown

20:19 out the slot machine noise?

20:20 A. Some table game players get very -- are

20:21 very loud; some are very quiet. So it just

20:22 depends.

20:23 Q. So is it fair to say that some people

20:24 raise their voices at the casino?

20:25 A. Yes.

21:01 Q. Are people ever yelling?

21:02 A. Yes.

23:07 - 23:08 Medina, Jesus 2020-10-09 0:08

23:07 Q. Could we take a look at Tab 3 which we'll

23:08 mark as Exhibit 54.

23:09 - 26:01 Medina, Jesus 2020-10-09 3:16

23:09 (Exhibit 54 was marked for

23:10 identification.)

23:11 BY MR. CASTIGLIA:

23:12 Q. Mr. Medina, do you recognize this

23:13 document?

23:14 A. Yes.

23:15 Q. And what is this document?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 298 of 345
23:16 A. It is the job description for a 21

23:17 dealer.

23:18 Q. And let's take a quick look at the second

23:19 page, it is Boyd_Gaming_00003. Do you recognize

23:20 this document?

23:21 A. Yes.

23:22 Q. And what is this document?

23:23 A. These are the physical requirements

23:24 assessment for the position.

23:25 Q. And is it Boyd Gaming's regular practice

24:01 to make documents such as this outlining job

24:02 description and physical assessments?

24:03 A. Yes.

24:04 Q. And do you keep these type of records in

24:05 the ordinary course of your business?

24:06 A. Yes.

24:07 Q. And would Boyd Gaming make this record at

24:08 or near the time that they may have offered this

24:09 job position?

24:10 A. There is one made. They are revised and

24:11 audited periodically. For me to tell you that they

24:12 are done at the time of offer of employment, I

24:13 mean, we are constantly hiring and offering

24:14 employment for these type of positions. So it is

24:15 not -- it is not one that's reviewed every time

24:16 there is a job offer made.

24:17 Q. Okay. But so it's fair to say that you

24:18 periodically update this. This is the latest 21

24:19 dealer job description and physical requirement

24:20 form?

24:21 A. Correct.

24:22 Q. And is this the form that applied when

24:23 Mr. Hacker worked at the casino?

24:24 A. Yes.

24:25 Q. Okay. Let's look at the second page,

25:01 which we are on. It's Boyd_Gaming_00002. Do you

25:02 see the section where it says "communications"?

25:03 A. Yes.

25:04 Q. And do you see the section where it says

25:05 "verbal communications" under the subsection of

25:06 communication?

25:07 A. Yes.

25:08 Q. What is the number next to the verbal

25:09 communications?

25:10 A. So that's the number of what they would

25:11 call a -- what the rating scale is. So a Number 1

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 299 of 345
25:12 is normal conditions.

25:13 Q. And for verbal communications, there's a Re: [25:13 to 25:17]

25:14 Number 1 next to that physical requirement. So is Pltf Obj 611, misstates

25:15 it fair to say that a 21 dealer needs a normal

25:16 level of verbal communication abilities?

25:17 A. Yes.

25:18 Q. And do you see the section for sensory

25:19 abilities?

25:20 A. Yes.

25:21 Q. What are the requirements for a 21 dealer

25:22 relating to the ability to hear?

25:23 A. It's normal, normal conditions.

25:24 Q. So fair to say that a 21 dealer needs a Re: [25:24 to 26:01]

25:25 normal level of hearing? Pltf Obj 611, misstates

26:01 A. Yes.

26:12 - 26:24 Medina, Jesus 2020-10-09 1:39

26:12 Q. If a dealer can't hear ordinary

26:13 conversation, would that affect their ability to

26:14 perform their job responsibilities?

26:15 A. Yes.

26:16 Q. Why is that?

26:17 A. Because there is some form of

26:18 communication involved with our guest and the game

26:19 if there needs to be payouts, what type of bets

26:20 they are taking in on the game.

26:21 Q. Okay. And if an employee like a dealer

26:22 at a 21 table had a hearing impairment, they

26:23 struggle to hear patrons, would the casino offer

26:24 any types of accommodations to the employee?

27:03 - 27:03 Medina, Jesus 2020-10-09 0:02

27:03 THE WITNESS: Yes.

27:05 - 27:06 Medina, Jesus 2020-10-09 0:08

27:05 Q. What type of accommodations would a

27:06 dealer be able to obtain at the casino?

27:15 - 28:01 Medina, Jesus 2020-10-09 1:35

27:15 THE WITNESS: So if a team member makes

27:16 us aware that they require an accommodation, HR

27:17 would reach out to the team member, get more

27:18 information from them as to what the condition is

27:19 or what is going on, and then we would refer them

27:20 to our team member services department to apply for

OBJECTION WITHDRAWN, 3/12/2021

OBJECTION WITHDRAWN, 3/12/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 300 of 345
27:21 an accommodation.

27:22 BY MR. CASTIGLIA:

27:23 Q. Do you know whether Mr. Hacker ever

27:24 applied for an accommodation relating to hearing

27:25 loss?

28:01 A. He did not.

28:03 - 28:12 Medina, Jesus 2020-10-09 1:45

28:03 As a table games dealer, could you just

28:04 describe a little more for me what Mr. Hacker's job

28:05 responsibilities included?

28:06 A. So he would -- depending on the type of

28:07 game, 21 game that he is on, he would deal that

28:08 game according to the standards set. He would

28:09 deal -- shuffle cards, deal them to the guests,

28:10 interact with the guests, payout any bets, pick up

28:11 any bets, make change. Those are the type of

28:12 things that he would do as a 21 dealer.

28:13 - 28:16 Medina, Jesus 2020-10-09 0:20

28:13 Q. I am going to ask that we bring up Tab 3

28:14 again, but this time let's look at the first page

28:15 of Boyd_Gaming_00001 and we've marked that as

28:16 Exhibit 54.

28:17 - 29:20 Medina, Jesus 2020-10-09 1:25

28:17 There is a row that's titled work Re: [29:18 to 29:20]

28:18 environment. Do you see that? Pltf Obj 611, misstates

28:19 A. Yes.

28:20 Q. And what does it say under job related

28:21 environmental factors for Boyd Gaming 21 dealer?

28:22 A. Excessive noise second hand spoke job is

28:23 performed outside, possible weather extremes

28:24 et cetera.

28:25 Q. Is the description of exposure to noise

29:01 an accurate description of job-related

29:02 environmental factors for a Boyd Gaming 21 dealer?

29:03 A. It says casino environment which may

29:04 include exposure to noise and secondhand smoke.

29:05 Q. Is that an accurate description of a 21

29:06 dealer's workplace environment?

29:07 A. Yes.

29:08 Q. Let's look at the second page again which

29:09 ends in 002. Under the first section of the

29:10 physical requirements assessment, do you see the

29:11 section titled, Work Environment?

OBJECTION WITHDRAWN, 3/16/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 301 of 345
29:12 A. Yes.

29:13 Q. And do you see the subsection titled,

29:14 Exposure to Loud Noises?

29:15 A. Yes.

29:16 Q. It has a rating scale of one?

29:17 A. Yes.

29:18 Q. And does that mean a 21 dealer would

29:19 experience loud noises as much as a normal person

29:20 would?

29:22 - 29:22 Medina, Jesus 2020-10-09 0:00

29:22 THE WITNESS: Yes. Re: [29:22 to 29:22]

Pltf Obj 611, misstates

30:22 - 32:17 Medina, Jesus 2020-10-09 2:50

30:22 Q. Mr. Medina, do you recognize this

30:23 document?

30:24 A. Yes.

30:25 Q. And what is this document?

31:01 A. It is service standards forms tables

31:02 games dealers.

31:03 Q. And is it the casino's regular practice

31:04 to make documents such as this establishing service

31:05 standards for employees?

31:06 A. Yes.

31:07 Q. And is it fair to say that this is the

31:08 type of document that the casino keeps in its

31:09 regular and ordinary course of business?

31:10 A. Yes.

31:11 Q. And would the casino make this document

31:12 at or near the time that they established these

31:13 standards?

31:14 A. Yes.

31:15 Q. Would you describe Number 2 on the

31:16 service standards for guest interactions?

31:17 A. Demonstrate the 10-5 rule. So when a

31:18 guest is within 10 feet of a team member the team

31:19 member should make eye contact and acknowledge

31:20 oncoming guests. At 5 feet, the team member should

31:21 greet the guest with a warm hello.

31:22 Q. So is it fair to say that conversations

31:23 between employees and patrons might start at five

31:24 to 10 feet away from each other?

31:25 A. Yes.

32:01 Q. And would you describe Number 5 on the

32:02 service standard for guest's interactions?

OBJECTION WITHDRAWN, 3/16/2021

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 302 of 345
32:03 A. Engage guest in conversation.

32:04 Q. Why is it important that employees at the

32:05 casino engage guests in conversations?

32:06 A. To make them feel welcome, acknowledging

32:07 them.

32:08 Q. And would you describe Number 12 on the

32:09 service standards for the guest interactions for

32:10 me?

32:11 A. Give guests and fellow team members your

32:12 full attention while using active listening.

32:13 Q. And why is it important that the casino

32:14 employees actively listen to their guests and

32:15 fellow team members?

32:16 A. So they don't provide poor customer

32:17 service.

33:25 - 34:03 Medina, Jesus 2020-10-09 0:12

33:25 Q. Let's talk about Mr. Hacker's job

34:01 performance specifically. Based on your review of

34:02 the records and experience as the director of HR,

34:03 how would you describe Mr. Hacker as an employee?

34:06 - 35:16 Medina, Jesus 2020-10-09 2:12

34:06 THE WITNESS: Based on his record, good.

34:07 BY MR. CASTIGLIA:

34:08 Q. Let's look at Tab 2 again, which we

34:09 marked as Exhibit 55, and this time let's look at

34:10 the Bates number ending in 008. I wish you had

34:11 this document in person so that you didn't have to

34:12 look at it sideways, but what is this document?

34:13 A. This is our IView certificate form, so it

34:14 is a certificate acknowledging our team members for

34:15 good customer service. All of our leaders issue

34:16 these to team members whenever they observe a 

team

34:17 member providing good customer service.

34:18 Q. And is it fair to say that it is Boyd

34:19 Gaming's regular practice to make documents such as

34:20 this award for Mr. Hacker?

34:21 A. Yes.

34:22 Q. And is it fair to say that this is a

34:23 document kept by Boyd Gaming in the regular course

34:24 of its business?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 303 of 345
34:25 A. Yes.

35:01 Q. And would that award be made at or near

35:02 the time that Mr. Hacker created a positive

35:03 customer experience?

35:04 A. Yes.

35:05 Q. There are two boxes checked on

35:06 Mr. Hacker's award. What are these boxes?

35:07 A. Those are the company's core values;

35:08 relationships, integrity, exceed expectations and

35:09 work smart, so the reason why those two are checked

35:10 off is because the leader, which is Lucy Thoma saw

35:11 that Mr. Hacker exceeded expectations and worked

35:12 smart.

35:13 Q. Okay. So it's fair to say that

35:14 Mr. Hacker was not only performing his job duties

35:15 but actually exceeding expectations?

35:16 A. Correct.

35:17 - 35:23 Medina, Jesus 2020-10-09 0:12

35:17 Q. And based on your review of the records,

35:18 have you ever received complaints about Mr. Hacker

35:19 from patrons?

35:20 A. No, I have not.

35:21 Q. No complaints that he was

35:22 misunderstanding patrons?

35:23 A. I have not.

36:03 - 36:07 Medina, Jesus 2020-10-09 0:09

36:03 Q. Mr. Medina, if you received a complaint

36:04 about Mr. Hacker's job performance for any

36:05 hearing-related issues, is that something that

36:06 would be related in his job file?

36:07 A. Yes.

36:17 - 36:19 Medina, Jesus 2020-10-09 0:11

36:17 Q. Have patrons ever complained about Mr. Re: [36:17 to 36:19]

36:18 Hacker having trouble communicating with them? Pltf Obj cumulative (asked &

36:19 A. No. answered)

36:22 - 36:23 Medina, Jesus 2020-10-09 0:04

36:22 Q. Have patrons ever complained about Re: [36:22 to 36:23]

36:23 Mr. Hacker having trouble hearing them? Pltf Obj cumulative (asked &

answered)

37:02 - 37:24 Medina, Jesus 2020-10-09 1:57

OBJECTION WITHDRAWN, 3/12/2021

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 304 of 345
37:02 Q. Was the answer no? Re: [37:02 to 37:08]

37:03 A. No. Pltf Obj cumulative (asked &

37:04 Q. Does Boyd Gaming have a single record answered)

37:05 that indicates that a single customer ever

37:06 complained about Mr. Hacker not being able to hear

37:07 something?

37:08 A. Not that I'm aware of, we don't.

37:09 Q. And you mentioned that Mr. Hacker no

37:10 longer works at the Suncoast Hotel and Casino;

37:11 right?

37:12 A. Correct.

37:13 Q. And you mentioned that his termination

37:14 was related to the Covid 19 pandemic?

37:15 A. Correct.

37:16 Q. Was his termination related in any way to

37:17 issues with his hearing capabilities?

37:18 A. No.

37:19 Q. Was his termination in any way related to

37:20 his tinnitus?

37:21 A. I'm sorry. What was this?

37:22 Q. Was his termination in any way related to

37:23 an ear condition called tinnitus?

37:24 A. No.

40:02 - 40:05 Medina, Jesus 2020-10-09 0:15

40:02 Q. I want to talk to you a little bit about Re: [40:02 to 40:07]

40:03 how the game of 21 or blackjack is played. Isn't Def Obj Foundation (602)

40:04 it true that primarily hand signals are used in

40:05 order to play the game?

40:07 - 40:07 Medina, Jesus 2020-10-09 0:00

40:07 THE WITNESS: I could not answer that. Re: [40:02 to 40:07]

Def Obj Foundation (602)

40:09 - 40:17 Medina, Jesus 2020-10-09 0:20

40:09 Q. Well, I guess, are you a blackjack player Re: [40:14 to 40:19]

40:10 yourself? Def Obj Foundation (602)

40:11 A. No, I am not.

40:12 Q. Have you ever played blackjack?

40:13 A. No, I have not.

40:14 Q. Okay. Are you familiar with the use

40:15 of -- well, whenever you are making a bet, for

40:16 instance, you simply put the chips that you want to

40:17 bet on the table; correct?

40:19 - 40:19 Medina, Jesus 2020-10-09 0:00

SUSTAINED

OVERRULED

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 305 of 345
40:19 THE WITNESS: Correct. Re: [40:14 to 40:19]

Def Obj Foundation (602)

40:24 - 41:01 Medina, Jesus 2020-10-09 0:08

40:24 Q. You just put them on the table and there Re: [40:24 to 41:23]

40:25 is a spot where you put them in order to pony up Def Obj Foundation (602)

41:01 your bet; is that fair?

41:03 - 41:03 Medina, Jesus 2020-10-09 0:00

41:03 THE WITNESS: Yes. Re: [40:24 to 41:23]

Def Obj Foundation (602)

41:05 - 41:08 Medina, Jesus 2020-10-09 0:09

41:05 Q. And whenever you are asking me for Re: [40:24 to 41:23]

41:06 another card, you actually take the two cards and Def Obj Foundation (602)

41:07 brush them towards you or you knock on the table

41:08 asking for another card; is that fair?

41:10 - 41:10 Medina, Jesus 2020-10-09 0:00

41:10 THE WITNESS: Yes. Re: [40:24 to 41:23]

Def Obj Foundation (602)

41:12 - 41:16 Medina, Jesus 2020-10-09 0:14

41:12 Q. And if you don't want another card, you Re: [40:24 to 41:23]

41:13 slide your two cards under the, or however many Def Obj Foundation (602)

41:14 cards you have, under the actual bet that you have

41:15 made, put the corners under it to signal you don't

41:16 want another hit; is that true?

41:18 - 41:23 Medina, Jesus 2020-10-09 0:08

41:18 THE WITNESS: Yes. Re: [40:24 to 41:23]

41:19 BY MR. BLAIR: Def Obj Foundation (602)

41:20 Q. And, for instance, if you are going to

41:21 double down, you simply put double your bet next to

41:22 your original bet; is that correct?

41:23 A. Yes.

42:02 - 42:06 Medina, Jesus 2020-10-09 0:17

42:02 Q. And if you are wanting to split cards, Re: [42:02 to 42:08]

42:03 you do another hand signal where you're actually Def Obj Foundation (602)

42:04 splitting two fingers so the dealer knows that you

42:05 want to split those two cards or those two cards

42:06 for additional cards; right?

42:08 - 42:17 Medina, Jesus 2020-10-09 0:19

42:08 THE WITNESS: I am not aware of that. Re: [42:02 to 42:08]

42:09 BY MR. BLAIR: Def Obj Foundation (602) OVERRULED

OVERRULED

OVERRULED

OVERRULED

OVERRULED

OVERRULED

OVERRULED

OVERRULED

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 306 of 345
42:10 Q. But you were generally aware of the

42:11 signals that I talked about?

42:12 A. Yes.

42:13 Q. And you don't have to be a blackjack

42:14 player yourself to know that's how it is done? You

42:15 have had a lot of experience being around

42:16 blackjack; correct?

42:17 A. Correct.

44:13 - 44:25 Medina, Jesus 2020-10-09 1:44

44:13 Q. And we talked earlier today about what's

44:14 been Bates numbered Boyd_Gaming_0002 where

44:15 Mr. Hacker's working conditions as far as exposure

44:16 to noises was normal based upon the Number 1

44:17 designation; is that true?

44:18 A. Yes.

44:19 Q. So he was working within a normal noise

44:20 level in his everyday job?

44:21 A. Yes.

44:22 Q. And you mentioned that there is music

44:23 that's piped in over the speakers. I presume

44:24 that's not blaring music, is it?

44:25 A. No, it is not.

45:03 - 45:07 Medina, Jesus 2020-10-09 0:14

45:03 Q. And the -- you mentioned that

45:04 occasionally you will have bands in, but those

45:05 bands are far across the casino from where

45:06 Mr. Hacker would have been working at the blackjack

45:07 tables; is that true?

45:09 - 45:09 Medina, Jesus 2020-10-09 0:00

45:09 THE WITNESS: Correct.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 307 of 345
Pltf Objections 3M Objections Rulings

7:18 - 9:23 Murphy, William 2021-01-15 3:50

7:18 Q. Good afternoon, Dr. Murphy. My

7:19 name is Nick Wasdin, and I represent 3M in this

7:20 litigation. Can you start by introducing

7:21 yourself, tell us who you are and where you

7:22 work?

7:23 A. My name is William Murphy, and I

8:01 work for the National Institute for

8:02 Occupational Safety and Health. I'm in the

8:03 division of field studies and engineering. And

8:04 I'm in the engineering physical hazards branch

8:05 and in the noise and bioacoustics team. I've

8:06 been working at NIOSH since December of 1992.

8:07 And my current position is as the coordinator

8:08 for the hearing loss prevention research

8:09 program within the National Institute for

8:10 Occupational Safety and Health. And I've been

8:11 doing that job for the last five years.

8:12 Q. Can you give us an overview of

8:13 your education prior to joining NIOSH?

8:14 A. Sure. I completed a bachelor's

8:15 degree in 1982 in physics at Iowa State

8:16 University. I continued at Iowa State and

8:17 completed a master's degree in physics -- in

8:18 solid state physics at Iowa State University in

8:19 1984. I then applied for and went to

8:20 Purdue University to study for my doctorate in

8:21 physics. That was completed in 1992.

8:22 The emphasis area in my research was --

8:23 well, specialized in hearing science, cochlear

9:01 modeling, and measurement of otoacoustic

9:02 emissions, which are sounds produced by the

9:03 inner ear and measured in the ear canal. And

9:04 then I was hired by National Institute for

9:05 Occupational Safety and Health in -- June 26 of

9:06 1992 is when I was offered my job. And then I

9:07 was told I needed to show up there by

9:08 December 14 of 1992. So December 14 is when I

9:09 started with NIOSH after I had finished and

9:10 defended my dissertation work at Purdue. And I

9:11 have been with NIOSH ever since.

9:12 Q. Okay.

9:13 A. I've -- in 2012 -- well, starting

3M Affirmatives Pltf Counters

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 308 of 345
9:14 in 2000 and finishing in 2012, I completed a

9:15 master's degree -- master's of engineering

9:16 degree in acoustics at Penn State University in

9:17 the graduate program for acoustics.

9:18 Q. Has your work as NIOSH included

9:19 researching and testing hearing protection

9:20 devices?

9:21 A. Yes.

9:22 Q. What type of testing have you done

9:23 on hearing protection devices?

10:08 - 11:10 Murphy, William 2021-01-15 2:53

10:08 A. The work that we've done has been

10:09 both physical acoustics measurements and with

10:10 human subject measurements. And -- I'm sorry.

10:11 I'm trying to finish one thing that somebody is

10:12 asking me about and I need to get back to her.

10:13 It should be -- all right. So there is -- at

10:14 NIOSH we have a testing laboratory for human

10:15 subjects to conduct what's called real ear

10:16 attenuation and threshold measurements, which

10:17 are the standard type measurements that are --

10:18 that are done for determining the noise

10:19 reduction rating for hearing protection

10:20 devices.

10:21 We also have the facilities to do physical

10:22 acoustic measurements of attenuation of hearing

10:23 protection devices, both with continuous noise

11:01 sounds and with impulsive noise sounds. And

11:02 that -- I think that answers your question.

11:03 Q. When did you first become aware of

11:04 the Combat Arms Earplug?

11:05 A. Let me think. I -- I think when I

11:06 first became aware of it was around 2001. We

11:07 purchased an acoustic test fixture in 2000, I

11:08 think. And it was delivered in September of

11:09 2001. And we did our first tests with that

11:10 fixture with earplugs in 2001.

12:15 - 13:09 Murphy, William 2021-01-15 1:57

12:15 Q. (Mr. Wasdin) Dr. Murphy, I heard

12:16 your last answer cut out on me. But I asked

12:17 when you first became aware of the Combat Arms,

12:18 and I think you were describing your purchase

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 309 of 345
12:19 of an acoustical test fixture.

12:20 A. Yes. The reason I -- I can't peg

12:21 or pin down exactly when I became aware of the

12:22 Combat Arms Earplug was that the company or the

12:23 organization that we purchased the acoustical

13:01 test fixture from was the French German

13:02 Research Institute of Saint Louis. And they

13:03 are also the ones who invented the filter that

13:04 is used in the Combat Arms Earplug. So we

13:05 became aware of that. The first time that I

13:06 ever did any measurements with the Combat Arms

13:07 Earplug with that filter was in 2001.

13:08 Q. Okay. And what type of acoustical

13:09 test fixture did NIOSH have at that time?

13:11 - 13:15 Murphy, William 2021-01-15 0:12

13:11 A. It's the one that we purchased --

13:12 we purchased it from the French German Research

13:13 Institute of Saint Louis.

13:14 Q. Is it a mannequin of some sort?

13:15 A. Yes.

14:08 - 14:16 Murphy, William 2021-01-15 0:22

14:08 Q. All right. Dr. Murphy, this, I

14:09 believe, will take the number Exhibit 1 to your

14:10 deposition. And it is an e-mail from you to

14:11 some other folks dated 10/23/2001 with the

14:12 subject line of impulse peak levels. Do you

14:13 see that?

14:14 (Defendant's Exhibit Number 1

14:15 is marked for identification.)

14:16 A. Yes.

14:17 - 15:22 Murphy, William 2021-01-15 2:39

14:17 Q. What is the -- what does this

14:18 e-mail contain within itself?

14:19 A. It contains -- well, the data

14:20 columns that are there are describing the

14:21 firearm that was used, whether it was a nine

14:22 millimeter pistol. I'd have to go back and

14:23 look to see exactly what pistol it was. But I

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 310 of 345
15:01 want to say it was a Sig Sauer pistol and a

15:02 Colt AR-15 which is a surrogate for the M-16

15:03 rifle.

15:04 And it describes in the second column of the

15:05 dataset there the different types of hearing

15:06 protection devices that were tested. There are

15:07 a variety of earplugs. There are a variety of

15:08 electronic hearing protectors. It describes

15:09 whether the hearing protector was electronic or

15:10 whether it was just turned off. It describes

15:11 whether the protector was nonlinear. And then

15:12 it tells us the peak level, the sound pressure

15:13 level of the impulse that was measured close to

15:14 the mannequin, about four inches from the right

15:15 ear of the mannequin, which was about six feet

15:16 of the left of the person who was doing the

15:17 shooting. It describes the peak level inside

15:18 of the mannequin's ear canal, so measured

15:19 approximately at the location of the tympanic

15:20 membrane. And it describes the difference, the

15:21 attenuation, between the outside and inside

15:22 measurement.

16:13 - 17:20 Murphy, William 2021-01-15 2:55

16:13 Q. One of the earplugs or hearing

16:14 protection devices that was tested included the

16:15 Combat Arms Version II. Is that right?

16:16 A. Yes. Yes. There are eight lines

16:17 in this that have CAELin, CAELin2, CAENLin and

16:18 CAENLin2. There are four lines for the nine

16:19 millimeter, and there are four lines for the

16:20 M-16.

16:21 Q. What was the purpose of this

16:22 testing? Why was it done?

16:23 A. Well, the question that was of

17:01 interest to me as a researcher in hearing, in

17:02 hearing science, is whether or not the impulse

17:03 would be attenuated sufficiently fast to, you

17:04 know, not prevent or not present a damage risk

17:05 to the persons who were wearing these hearing

17:06 protection devices.

17:07 In particular I was concerned about the

17:08 electronic devices, whether or not they would

17:09 be cutting out sound quickly enough and -- and

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 311 of 345
17:10 just trying to understand what it is that we

17:11 can know about the hearing protection devices.

17:12 The Combat Arms Earplugs -- and then there's

17:13 another one that's listed in there called

17:14 ISLNLin and ISLNLin2. Those are using the same

17:15 filter that's in the Combat Arms Earplug. And

17:16 the way that those filters operate is based on

17:17 physical acoustic principles where the acoustic

17:18 resistance of -- the pressure -- the resistance

17:19 to sound going through that small orifice acts

17:20 almost immediately.

18:03 - 19:04 Murphy, William 2021-01-15 1:27

18:03 Q. Okay. Was this testing performed

18:04 on the ISL mannequin that you described

18:05 earlier?

18:06 A. It was performed on an ISL

18:07 mannequin that was built in the year 2000.

18:08 Q. Can you describe for us what the

18:09 ear and ear canal anatomy is on that mannequin?

18:10 A. The ear canal on this particular

18:11 mannequin, I want to say it was about eight

18:12 millimeters or -- I'd have to go back and look

18:13 at my records. But I think it was around eight

18:14 to nine millimeters in length. It was a rubber

18:15 ear canal insert that attaches to the lateral

18:16 end of the middle ear simulator. In this case

18:17 it was one that was built by Bruel and Kjaer

18:18 Corporation.

18:19 And that ear canal simulator is mounted

18:20 inside of a solid acrylic head. And it is

18:21 isolated in two different ways. There's a

18:22 casing inside of this acrylic head in which the

18:23 preamplifier and the ear simulator are mounted.

19:01 And those provide shock isolation for the

19:02 purpose of being able to use these with very

19:03 high level impulses such as blast noise from

19:04 explosions and the like.

19:05 - 24:17 Murphy, William 2021-01-15 7:59

19:05 Q. How was the Combat Arms Version II Re: [19:05 to 24:17]

19:06 plug that you tested inserted into the ear Pltf Obj 402, 403, cumulative 

19:07 canal on the mannequin?

19:08 A. Well, the ear canal is a straight

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 312 of 345
19:09 cylinder. So as you insert the earplug,

19:10 because this ear canal had only about eight or

19:11 nine millimeters, if I recall correctly, of

19:12 length, you could only be assured that you were

19:13 getting full contact of the first flange and

19:14 the second flange of the Combat Arms Earplug

19:15 with the walls of the ear canal. The third

19:16 flange of the earplug makes contact with the

19:17 lateralmost edge of the ear canal. But it

19:18 isn't inserted fully like you would have on

19:19 a -- if you were to insert it in a -- in a real

19:20 human ear or in -- there's another ear canal

19:21 that we -- or another acoustic test fixture

19:22 that we did.

19:23 And I guess we'll get to it in the other --

20:01 other documents that were submitted. But it's

20:02 a longer ear canal. And it's more conformal to

20:03 the shape of a -- a regular human ear canal.

20:04 Q. What steps were you able to take

20:05 on this first mannequin in 2001 to ensure that

20:06 you were getting a good fit or seal with the

20:07 earplug?

20:08 A. In the case of the Combat Arms

20:09 Earplug as well as in the other earplug that

20:10 is -- well, the other earplugs that are in

20:11 these measurements, we inserted them to the

20:12 full depth of the mannequin's ear canal. The

20:13 ear simulator -- the middle ear simulator has a

20:14 grid that is about four millimeters in front of

20:15 the diaphragm of the microphone that's doing

20:16 the sensing of the sound. And so you can push

20:17 the ear canal -- you can push the earplug all

20:18 the way into the ear canal and not worry about

20:19 contacting the diaphragm of the microphone and

20:20 destroying the microphone.

20:21 Q. Did you need to fold back the

20:22 flanges --

20:23 A. No.

21:01 Q. -- on the opposite end of the plug

21:02 to get a good fit?

21:03 A. No.

21:04 Q. So all of this testing, at least

21:05 in 2001, was done without folding the flanges

21:06 back?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 313 of 345
21:07 A. Correct.

21:08 Q. Can you tell looking at Exhibit 1

21:09 here what type of attenuation -- let's start

21:10 with the green end of the Combat Arms, was

21:11 providing?

21:12 A. Sure. The green end of the Combat

21:13 Arms is the CAELin and the CAELin2. And as we

21:14 look at this, it is lines three and four of the

21:15 data. And the last number in those lines is

21:16 28.78 and 28.83. And if you go down a little

21:17 further to where the M16 has the same CAELin

21:18 and CAELin2, we find that the values there are

21:19 28.28 and 28.86.

21:20 So it's -- it's providing -- and there needs

21:21 to be perhaps a distinction between what I'm

21:22 calling attenuation, at least in this e-mail at

21:23 that time, and making a comparison to something

22:01 like noise reduction rating. Noise reduction

22:02 rating is measured with the subject's ear.

22:03 You're making a measurement of -- of detecting

22:04 sound with the ear open and then with the ear

22:05 occluded with an earplug. And in this case

22:06 we're making a measurement between the

22:07 microphone that is outside of the ear and the

22:08 microphone that is at the location of the --

22:09 the tympanic membrane or nominally surrogate

22:10 for the tympanic membrane. And the difference

22:11 between the outside microphone and the inside

22:12 microphone is going to be slightly different

22:13 and slightly affected due to resonance effects

22:14 of the outer and middle ear that a human would

22:15 experience.

22:16 Q. So I think to sort of try to

22:17 summarize this as best I understand it, for

22:18 both the nine millimeter handgun that was fired

22:19 as well as the M16 surrogate rifle, the green

22:20 end of the Combat Arms was providing

22:21 approximately 28 dB of attenuation from the --

22:22 A. Correct.

22:23 Q. -- outside inside of the earplug?

23:01 A. Correct.

23:02 Q. Okay. And then what about the

23:03 yellow end, how did that side perform?

23:04 A. The yellow end are the next two

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 314 of 345
23:05 lines, so lines 5 and 6. And we see there

23:06 28.18 and 26.68 for the nine millimeter rounds.

23:07 And for the M16 we're seeing 25.07 and 25.73

23:08 for the -- I'm going to call this the impulse

23:09 noise reduction or the peak noise reduction

23:10 that we're seeing. In the e-mail I called it

23:11 attenuation. But I think the correct term to

23:12 use is noise reduction.

23:13 Q. Okay. You mentioned earlier that

23:14 one of these other hearing protection devices

23:15 that are listed in this -- these rows of data

23:16 also used the same ISL nonlinear filter. Is

23:17 that right?

23:18 A. Yes.

23:19 Q. Which -- sorry, sir.

23:20 A. There's -- well, there's the

23:21 ISLNLin and the ISLNLin2.

23:22 Q. What plug was that?

23:23 A. It is -- so when -- I'm trying to

24:01 remember who it is. I think it was Aearo at

24:02 the time, that they made a -- they licensed the

24:03 product, this filter from the French German

24:04 Research Institute de Saint Louis. But the

24:05 French Army was using -- and you'll see it up

24:06 here in the -- in the body of the e-mail. It

24:07 describes here ISLNLin and NLin2 are the Bilsom

24:08 656/ISL nonlinear plug. And the French Army

24:09 had access to this filter. And they use it in

24:10 the French Army. I don't know if Bilsom still

24:11 makes this product. I don't think that they

24:12 do. Well, Bilsom is no longer -- they're now a

24:13 part of Honeywell.

24:14 Q. Is Bilsom, or at least were they

24:15 at the time, a different manufacturer of

24:16 hearing protection?

24:17 A. Yes.

29:14 - 29:20 Murphy, William 2021-01-15 0:24

29:14 Q. Okay. Going back to Exhibit 1, Re: [29:14 to 29:20]

29:15 the October 2001 testing that we were just Pltf Obj cumulative

29:16 talking about, I was asking you how did the

29:17 results that you achieved with the Combat Arms

29:18 Version II Earplug compare to the results that

29:19 you achieved with the Bilsom earplug that had

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 315 of 345
29:20 the ISL filter in it?

30:05 - 30:18 Murphy, William 2021-01-15 1:53

30:05 A. I'm hearing nothing from the Re: [30:05 to 30:18]

30:06 attorney. As you look at this measurement of Pltf Obj cumulative, G7

30:07 attenuation, what you'll note is for the

30:08 ISLNLin and NLin2, the attenuation was

30:09 approximately 16.41 and 17.34. And for the M16

30:10 rifle, it was 15.9 and 17.81. So approximately

30:11 ten decibels less.

30:12 Now, the reason, I think, is that the flange

30:13 structure of the ISL or what is the Bilsom 656

30:14 earplug, the third flange does not make contact

30:15 at all with the ear canal. So when you insert

30:16 it, you only have contact with the first two

30:17 flanges of that earplug and not the third

30:18 flange.

31:01 - 33:09 Murphy, William 2021-01-15 3:48

31:01 Q. Dr. Murphy, turning your attention

31:02 from the results of your testing to the

31:03 distribution on the e-mail, can you tell me who

31:04 it was by looking at the to and CC lines that

31:05 you were sharing this data with?

31:06 A. What do you mean who? Do you want

31:07 me to tell you who all the persons are?

31:08 Q. Yes, sir.

31:09 A. Okay. Elliott Berger at that time

31:10 was worker for Aearo EAR. Vern Larson was an

31:11 employee of Bacou-Dalloz. At that particular

31:12 time, Bacou-Dalloz had purchased Bilsom

31:13 Corporation. They were still selling product

31:14 as Bilsom. Per -- Vern Larson worked in

31:15 San Diego at what is now the Honeywell

31:16 headquarters -- well, their hearing protection

31:17 labs in the U.S. Per Hiselius was working in

31:18 Billesholm, Sweden, and he was an employee of

31:19 Dalloz Safety.

31:20 Armand Dancer is a research physiologist and

31:21 medical physician with the French German

31:22 Research Institute de Saint Louis. Dr. Douglas

31:23 Ohlin was at that time part of the Centers for

32:01 Health Promotion and Preventive Medicine at

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 316 of 345
32:02 Aberdeen Proving Grounds Edgewood Campus. 

And

32:03 Dr. John Franks is -- at that time he was my

32:04 supervisor. And Mark Little -- Major Mark

32:05 Little was a -- what would you call it? I

32:06 guess it was an intern or he was assigned to

32:07 work at NIOSH for a year. And he was, I think,

32:08 towards the beginning of his tenure with us at

32:09 NIOSH.

32:10 Q. Do you recall why you were sending

32:11 this test data to that particular group of

32:12 people?

32:13 A. Because all of the products that

32:14 are listed there are manufactured by persons

32:15 from those companies with the exception of one

32:16 of the products that's there.

32:17 Q. And what about Mr. Doug Ohlin?

32:18 A. Doug Ohlin was in the Army's role

32:19 at the Center for -- CHPPM, Center for Health

32:20 Promotion and Preventive Medicine. And Mark

32:21 Little had been working with Dr. Ohlin. And

32:22 that's as much as I know. So I figured that

32:23 Doug would be interested. Armand Dancer is a

33:01 researcher at ISL. And since they invented the

33:02 earplug filter, I thought it was interesting to

33:03 share these data with him.

33:04 Q. Okay. After the 2001 testing

33:05 that's described in this e-mail, do you recall

33:06 when the next time was that you had an occasion

33:07 to test the Combat Arms Version II?

33:08 MS. SASLAW: And I'm --

33:09 A. May of 2002.

33:11 - 33:12 Murphy, William 2021-01-15 0:04

33:11 A. It's part of a health hazard

33:12 evaluation that NIOSH did.

33:20 - 35:14 Murphy, William 2021-01-15 2:11

33:20 Q. Okay. Dr. Murphy, can you tell us

33:21 if you recognize Exhibit 2, and if so, what it

33:22 is?

33:23 A. Let's see here. Yes. I recognize

34:01 it. It is a presentation that I wrote in

34:02 collaboration with my colleague, Chucri Kardous

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 317 of 345
34:03 at NIOSH. And it -- as the title says, it

34:04 describes measurements of attenuation of

34:05 nonlinear and linear hearing protection devices

34:06 and impulse noise.

34:07 Q. Is this the testing that you just

34:08 described would have been done in 2002?

34:09 A. Yes.

34:10 Q. Okay. If we turn to the -- well,

34:11 let me ask you before I turn into it, what was

34:12 the occasion for this testing? Why did you do

34:13 it?

34:14 A. The Fort Collins Police Services

34:15 Department contacted NIOSH to request their

34:16 assistance with the evaluation of impulse noise

34:17 and hearing sensitivity, hearing loss --

34:18 actually hyperacusis is the term that -- that

34:19 should be used, for their special weapons and

34:20 assault team, I guess is the proper expanded

34:21 abbreviation for SWAT. They had issued an

34:22 electronic earplug to their officers on the

34:23 SWAT team. And they were concerned that

35:01 several of their officers had developed

35:02 sensitivity to impulse noise and to using that

35:03 particular product. And they asked NIOSH to

35:04 come out and do an evaluation of the noise

35:05 levels and to evaluate that particular earplug

35:06 that they were using. And at the time that we

35:07 did this, I wanted to take and get as many of

35:08 our products that -- many of which you saw in

35:09 the -- in the previous Exhibit 1 or tab one, I

35:10 guess you called it. We wanted to evaluate as

35:11 many of those products as we could in

35:12 collaboration with going out and doing these

35:13 measurements at an indoor as well as an outdoor

35:14 firing range.

35:17 - 39:03 Murphy, William 2021-01-15 4:07

35:17 Q. And Dr. Murphy, I would ask you

35:18 whether you can tell us what products were

35:19 tested during this 2002 NIOSH testing?

35:20 A. Okay. So there are -- in this

35:21 case the -- there are linear products that are

35:22 described here. And there are nonlinear

35:23 products that are described here. The

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 318 of 345
36:01 Bilsom 555 is a solid core linear earplug. The

36:02 Bilsom 655 NST -- stands for natural sound

36:03 technology -- is akin to a flat attenuation

36:04 earplug designed for musicians of sorts. The

36:05 EAR Combat Arms Earplug is the CAE Version II.

36:06 The linear side of that is the green side.

36:07 The next two EAR products are the same

36:08 product. One of them is called HiFi. The

36:09 other is called Ultratech. And they are built

36:10 with a Knowles -- I believe it's a Knowles

36:11 acoustic filter. And they're meant to provide

36:12 a flat attenuation, a uniform attenuation

36:13 across the frequency spectra. The EAR classic

36:14 earplug is a polyvinyl foam earplug, and it is

36:15 formable. You can roll it down and make it

36:16 insert into a fixture and whatnot.

36:17 The nonlinear earplugs that were looked at

36:18 were the Bilsom 655 using the ISL cartridge.

36:19 So it's essentially the -- it's the same

36:20 flanges as the 655 NST earplug. But instead of

36:21 having the NST filter, it uses the ISL

36:22 cartridge. The EAR Combat Arms Version II with

36:23 the ISL cartridge, we all know what that is.

37:01 And then there's another product here, the

37:02 North Sonic ear valve, which is -- essentially

37:03 it's a flap inside of a metal cylinder with

37:04 openings on either end. And the assumption is

37:05 that the sound pressure level will cause that

37:06 flap to close and increase the attenuation.

37:07 And then the last product that's on that is an

37:08 earmuff called the EAR Ultra 9000. I don't

37:09 know if that's sold anymore. I don't believe

37:10 that it is. And it is also based on a

37:11 nonlinear acoustic process like the ISL

37:12 cartridge except instead of a cylinder with two

37:13 holes on either end, you know, inserted into an

37:14 ear canal cartridge, it's a larger slit orifice

37:15 that relies on the same principles that as the

37:16 sound pressure differential across the orifice

37:17 is increasing, the acoustic resistance

37:18 increases and provides more attenuation as the

37:19 sound pressure level outside goes up.

37:20 Q. Okay. Was this testing also done

37:21 on a mannequin?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 319 of 345
37:22 A. Yes. It was done on the ISL

37:23 mannequin that was done on the previous

38:01 discussion --

38:02 Q. And --

38:03 A. -- so circa 2000.

38:04 Q. -- would the Combat Arms

38:05 Version II have been fitted into that mannequin

38:06 in the manner that you described earlier?

38:07 A. Yes.

38:08 Q. Did you need to fold back the

38:09 flanges on the --

38:10 A. No.

38:11 Q. -- opposite on this test?

38:12 A. No.

38:13 Q. You were able to get a good fit

38:14 with the Combat Arms Version II without folding

38:15 the flanges back?

38:16 A. Correct.

38:17 Q. Did you have any problems during

38:18 this testing achieving or maintaining a good

38:19 fit with the Combat Arms Version II?

38:20 A. No. You know, it's -- it's the

38:21 same earplug. It's the same ear canal. And

38:22 it's the same issues that I mentioned earlier,

38:23 which is the first two flanges would have solid

39:01 contact with the ear canal wall. And the third

39:02 flange was in contact with the outer edge of

39:03 the ear canal wall.

39:06 - 41:01 Murphy, William 2021-01-15 3:31

39:06 Q. And Dr. Murphy, could you tell us

39:07 what you did during this 2002 testing?

39:08 A. So this is describing the

39:09 measurements at the indoor firing range. There

39:10 are ten weapons that are indicated here, five

39:11 different calibers, and the weapons had

39:12 different length barrels. So there are four

39:13 pistols. The 357 Smith and Wesson 586 and 686.

39:14 I don't remember which one is the longer one.

39:15 Same thing for the Para-Ordnance and the

39:16 Colt 991, 45 caliber, the Glock 22 and 27, and

39:17 the pocket nine and Sig Sauer nine millimeter

39:18 pistols.

39:19 The Remington 870 and 1187 also had slightly

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 320 of 345
39:20 different lengths in the shotgun barrel. We

39:21 set the mannequin up so that it was six feet to

39:22 the left of the shooter. The shooter had a

39:23 tripod in which they were to rest their hand

40:01 and basically provide a gun rest so that we

40:02 maintained a consistent positioning of the

40:03 weapon and not having issues of the weapon

40:04 barrel being, you know -- moving around

40:05 significantly.

40:06 For each hearing protector condition,

40:07 whether that was the device with the nonlinear

40:08 insertion or the linear insertion, every one of

40:09 them we -- we measured five shots for each of

40:10 these ten weapons at the indoor range. And if

40:11 I remember the -- the study was something like

40:12 there were 33 different conditions. And we had

40:13 ten weapons. And so that resulted in a couple

40:14 thousand shots that we had in this study.

40:15 At the outdoor range -- which is not

40:16 described here. At the outdoor range we

40:17 selected five of these weapons and two other

40:18 weapons that we couldn't use at the indoor

40:19 range, the Colt AR-15 and a Heckler and Koch.

40:20 I want to say it was a 36 rifle. And those

40:21 fire a .223 ammunition round or a .556

40:22 ammunition round. And they don't fire those at

40:23 the indoor range because their bullet traps are

41:01 not designed to accept that much energy.

41:05 - 44:01 Murphy, William 2021-01-15 4:32

41:05 Q. Dr. Murphy, take a look at this.

41:06 And can you tell us at least at a high level

41:07 what the results were for the green end, the

41:08 linear end of the Combat Arms Version II?

41:09 A. Yeah. As you look at that, it's

41:10 the greenish squares that are indicated in

41:11 this. And you can see that the -- these are

41:12 third octave band estimates of the noise

41:13 reduction. So this is the measurement between

41:14 the external microphone. So if we're putting a

41:15 microphone about four inches or so from the

41:16 right ear of the mannequin, then the mannequin

41:17 is -- has either a hearing protector or no

41:18 hearing -- actually it always had a hearing

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 321 of 345
41:19 protector on. And the reason it had a hearing

41:20 protector on is that initial purchase of the

41:21 mannequin had a half-inch microphone. So we

41:22 couldn't do an unoccluded measurement, a

41:23 measurement without a hearing protector on it,

42:01 without fear of overloading the microphone. So

42:02 that's why all of our measurements were done

42:03 with the earplugs in place.

42:04 So we're taking a measurement between the

42:05 external microphone and the internal microphone

42:06 and calculating the third octave band noise

42:07 reduction values.

42:08 Q. I know this is in graphical form,

42:09 so it may be a little bit difficult to do just

42:10 visually. But can you tell us sort of the

42:11 range or typical attenuation provided by the

42:12 CAEv2 green end during the testing?

42:13 A. Yeah. As we look at this, it --

42:14 it changes from starting at the left of the

42:15 graph at 25 hertz. Although knowing what I

42:16 know now in the publications that we did on

42:17 these kinds of products or these kinds of

42:18 measurements from this study, I would start at

42:19 around 100 hertz because we don't have a long

42:20 enough time sample to really get a good solid

42:21 measurement for the very low frequency that is

42:22 between 25 and 100 hertz.

42:23 But starting at a hundred hertz, we're

43:01 around 32 decibels. And as you go up around it

43:02 looks like about 400 hertz, it's decreased a

43:03 little bit to 28 or 23 -- 26 decibels. And

43:04 then it increases up to around 30-something

43:05 decibels, almost 40 decibels at 8,000 -- or 800

43:06 hertz.

43:07 And it reduces a little bit again. And by

43:08 the time we get out to 5,000 hertz and above,

43:09 it is more than 50 decibels. And there's a

43:10 dark -- well, not dark. A teal colored line in

43:11 this bold line. And that indicates the bone

43:12 conduction limit for the attenuation

43:13 measurement.

43:14 In other words, at some point the amount of

43:15 energy that would potentially be transmitted to

43:16 a person wearing the earplug to their --

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 322 of 345
43:17 through their skull -- not through the ear, but

43:18 through their skull, through the brain tissue

43:19 and potentially to the cochlea, it's what we

43:20 call the bone conduction limit. And so when

43:21 those two green values are below in this graph,

43:22 that line, we would want to limit what we say

43:23 about the amount of attenuation that it might

44:01 provide.

44:23 - 46:07 Murphy, William 2021-01-15 2:45

44:23 Q. Dr. Murphy, can you tell us how

45:01 the Bilsom product performed that had the ISL

45:02 filter in it?

45:03 A. In this case again, again, we

45:04 started around 100 hertz. The -- these are the

45:05 linear earplug filters. These are not the

45:06 nonlinear earplug filters. So it's not a

45:07 comparison -- well, wait. Wait. Wait. Wait.

45:08 I'm sorry. We are talking about the

45:09 Combat Arms linear earplug.

45:10 Okay. So the one that is to be compared

45:11 with the Combat Arms Version II would be the

45:12 blue symbols that are in this, the blue circles

45:13 and symbols. And we see attenuation ranging

45:14 from about 28 at 100 hertz. It decreases to

45:15 about 15 or so at 400 hertz and then increases

45:16 upwards of almost 40 decibels and such as you

45:17 move out into higher frequencies.

45:18 Q. Okay. So I'm sorry, Dr. Murphy.

45:19 Did I interrupt you?

45:20 A. The one thing I was going to point

45:21 out is that, you know, relative to the noises

45:22 that we're -- we're looking at, these are going

45:23 to be gunshots. And they're going to have peak

46:01 levels or a spectral peak around a thousand

46:02 hertz -- five hundred to a thousand hertz. So

46:03 the portion that matters in terms of the

46:04 attenuation that we're dealing with is going to

46:05 be affected perhaps more strongly by the

46:06 decrease in attenuation you see at 400, 500

46:07 hertz.

46:10 - 47:15 Murphy, William 2021-01-15 2:45

46:10 Q. Dr. Murphy, I believe this -- this

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 323 of 345
46:11 slide contains the yellow end.

46:12 A. Yes.

46:13 Q. The nonlinear end of the

46:14 Combat Arms and the other products. Can you

46:15 tell us what attenuation or noise reduction was

46:16 achieved with the yellow end of the Combat Arms

46:17 Version II on your testing?

46:18 A. Yeah. I'm just trying to think

46:19 about what's here. I'm -- I'm going to confess

46:20 that there may be an error in the legend. I'm

46:21 not positive about that. I'd have to go back

46:22 and check my -- my data. But if I believe the

46:23 legend as it is, the black symbols -- and well,

47:01 let me describe what I think the error is. The

47:02 EAR Combat Arms nonlinear earplug is yellow.

47:03 The EAR Ultra 9000 earmuff is black. And I

47:04 thought that these would be -- the yellow would

47:05 be the Combat Arms and the black would be the

47:06 Ultra 9000. That said, if we look at these, we

47:07 see a change in attenuation from almost no

47:08 attenuation at low levels or low frequencies.

47:09 And it increases as one goes up in frequency to

47:10 about 20 dB. This is -- I'm following the

47:11 black squares that are in this graph, to about

47:12 20 dB. Starting around a hundred hertz there's

47:13 a slight dip. It looks to be about 100 hertz.

47:14 And then it tends to increase from there on

47:15 out.

48:05 - 51:07 Murphy, William 2021-01-15 4:57

48:05 MR. WASDIN: If we go to slide 20,

48:06 Simon, there is a -- a chart that's called

48:07 summary of attenuation growth.

48:08 Q. Dr. Murphy, do you see that?

48:09 A. Yes, I do.

48:10 Q. What is this depicting?

48:11 A. Well, I think you need to go back

48:12 two -- one side. Let's go back one slide,

48:13 please, and I can describe what -- what we're

48:14 talking about here. Because the different

48:15 weapons that we used, this is data from the

48:16 indoor firing range because there are ten

48:17 symbols in blue, ten symbols in black, and ten

48:18 symbols in yellow. The different weapons have

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 324 of 345
48:19 different peak levels. And the performance of

48:20 a nonlinear earplug changes as a function of

48:21 the external and internal pressure difference.

48:22 So what I was trying to look at is what is the

48:23 growth or what is the change, what's the

49:01 variability in the nonlinear, you know, peak

49:02 reduction that we're seeing. Not the nonlinear

49:03 peak reduction. What is the change in the peak

49:04 reduction and what's the uncertainty in the

49:05 peak reduction as a function of the various

49:06 weapons that were used.

49:07 And what we see here are three different

49:08 hearing protection devices, the EAR nonlinear

49:09 earplug. That's in yellow. And the Ultra 9000

49:10 in black and the Bilsom ISL earplug in blue.

49:11 And what I did was take the average of all of

49:12 these quantities, so roughly the averages kind

49:13 of in the middle of each of those lines. Let's

49:14 just say right around 162.

49:15 So if we look at the Bilsom, we're seeing

49:16 around 17. If we look at the Ultra 9000, we're

49:17 seeing about 21 or 22. And if we're looking at

49:18 the EAR Combat Arms Earplug, we're looking at

49:19 about 23 in terms of the average of all of

49:20 those symbols. Then the other quantity that I

49:21 was trying to capture was the slope of those

49:22 lines.

49:23 And when you take a look at the slopes of

50:01 those lines, it's listed there 0.88 -- I'm

50:02 sorry, 0.088 decibels per decibel for the blue

50:03 line. 0.13 decibels per decibel for the yellow

50:04 line. And 0.53 decibels per decibel for the

50:05 black line.

50:06 Now, the earmuff is the Ultra 9000. And

50:07 earmuffs tend to change more. At least in my

50:08 experience with this, they change more as a

50:09 function of the peak level. And it has to do

50:10 just with the fact that you've got this large

50:11 volume that is being affected differently as

50:12 the -- as the impulse levels increase.

50:13 Now if we go to the next slide, what I've

50:14 done is try to summarize all of the products

50:15 that were tested and plotted them by their

50:16 average level and plotting them with the slope,

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 325 of 345
50:17 the attenuation of those lines. And so if we

50:18 look at the EAR Combat Arms, it's a 23 with a

50:19 slope of about .13 or .15. I forget what the

50:20 number was. Yes, that's the right symbol.

50:21 The Bilsom ISL is the dark blue symbol, and

50:22 it's around 17. And the slope is in the other

50:23 graph. It's at 0.088. And the EAR Ultra 9000

51:01 is up there at the top of the page. And it has

51:02 an attenuation of about 21 or 22 dB and a large

51:03 slope on this.

51:04 Q. So is the way this chart works is

51:05 that the further to the right you are, the

51:06 higher the noise reduction was?

51:07 A. The higher peak reduction, yes.

51:22 - 54:13 Murphy, William 2021-01-15 3:56

51:22 Q. And Dr. Murphy, this is the, I

51:23 believe --

52:01 A. The poster.

52:02 Q. The poster, yeah.

52:03 A. Yeah.

52:04 Q. Okay. Can you -- after the 2002

52:05 testing that we just described, when was the

52:06 next time you tested the Combat Arms

52:07 Version II?

52:08 A. This was conducted in 2015.

52:09 Q. Okay. And what was this testing?

52:10 A. In the left photograph in the

52:11 poster, you see a very large horn. And in

52:12 front of the horn are two of the GRAS Sound and

52:13 Vibration 45 CB acoustic test fixtures. One of

52:14 those fixtures was owned by NIOSH. The other

52:15 of those fixtures was owned by Western Michigan

52:16 University. And in between those two fixtures

52:17 is a pencil or a cylinder that you see there

52:18 with kind of a pointy end. And that is the

52:19 GRAS Sound and Vibration 67 SB probe

52:20 microphone.

52:21 Q. And these -- these heads, these

52:22 mannequin heads that we can see in the photo,

52:23 is that a sort of new test fixture that was

53:01 used --

53:02 A. Correct.

53:03 Q. -- for this testing?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 326 of 345
53:04 A. Correct. In 2010, you see it

53:05 listed right there at the top there, the ANSI

53:06 12.42-2010 standard was issued. And one of the

53:07 things we identified was a need to have longer

53:08 ear canals. These fixtures were manufactured

53:09 with approximately an 18 millimeter ear canal,

53:10 which would allow one to fit a typical foam

53:11 earplug or other earplug fully into the ear

53:12 canal and not bottom out at the -- at the grid

53:13 of the microphone in the middle ear simulator.

53:14 Q. It also looks from the photo like

53:15 these mannequins have a -- a pinna, like a --

53:16 A. Yes. They have a pinna that's

53:17 based on a human shaped pinna. You see the

53:18 flesh-shaped color ring around that. That's so

53:19 that when you put an earmuff or something on

53:20 it, you're making contact with something that

53:21 has the -- the typical Shore resistance as what

53:22 you might see with skin. Inside of the ear

53:23 canal of those mannequins, it's a steel tube.

54:01 Lining this steel tube is the same kind of

54:02 material that you see on the outside there, the

54:03 -- the flesh colored silicone material.

54:04 Q. How -- how were the Combat Arms

54:05 plugs, the Version II plugs, fit on this

54:06 mannequin during this testing?

54:07 A. They were fitted so that you could

54:08 get the entire earplug in -- well, the entire

54:09 three flanges inserted into the mannequin's

54:10 ear. And the flanges were not folded back.

54:11 Q. When you say the flanges were not

54:12 folded back, you mean on the opposite end?

54:13 A. Correct.

54:14 - 54:19 Murphy, William 2021-01-15 0:11

54:14 Q. Did you have any problems

54:15 achieving or maintaining a good fit with the

54:16 Combat Arms Version II during this testing?

54:17 A. No. The mannequins didn't move.

54:18 Q. Okay. And can you --

54:19 A. They didn't complain.

54:20 - 56:18 Murphy, William 2021-01-15 3:35

54:20 Q. I think I'm probably running

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 327 of 345
54:21 pretty short on time. But can you give us a

54:22 sort of a high level overview of the results

54:23 of --

55:01 A. Right. So there are -- if you can

55:02 slide over a little bit. Yeah. Blow up the

55:03 panel on your -- the panel in the middle there,

55:04 blow it up a little bit more. There is a CAEv4

55:05 and a CAEv2. And the CAEv2, there are two sets

55:06 of three bars. And I would have to look

55:07 closely at it to remember which ones are the

55:08 Western Michigan -- oh, it says it right there.

55:09 Western Michigan are the three bars to the

55:10 right. And the NIOSH fixture are the three

55:11 bars to the left. If you can zoom it in a

55:12 little bit more, please, that would be helpful.

55:13 There we go.

55:14 So we're looking at the Combat Arms

55:15 Version II. You'll see that there are a

55:16 blue -- a dark blue, a light -- a lighter blue,

55:17 and sort of a teal colored, and then a green,

55:18 orange, and yellow colored bar. These

55:19 represent three different peak levels that were

55:20 generated by the acoustic shock tube at 132,

55:21 150, and 168 decibel peak sound pressure level.

55:22 And we have different amounts of attenuation

55:23 that are observed on these devices. And this

56:01 is the impulse peak insertion loss.

56:02 And what it is, is we use calculation to

56:03 compensate for the fact that the person or that

56:04 the fixture is occluded versus unoccluded. And

56:05 we impute what the -- estimate what the peak

56:06 level would have been for a shot based on the

56:07 acoustic transfer function between that

56:08 pressure probe that you saw in the middle of

56:09 the two mannequins and the ear canal of the

56:10 unoccluded fixture.

56:11 And so we're seeing levels of attenuation at

56:12 132 of about ten decibels. At 150 dB we're

56:13 seeing attenuation levels of around 17 or 18

56:14 decibels. And at 168 dB we're seeing

56:15 attenuation levels of 32 to 35 decibels. The

56:16 little blips that you see on the tops of those

56:17 bars are the standard deviation -- one standard

56:18 deviation.

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61:13 - 62:09 Murphy, William 2021-01-15 1:58

61:13 Q. (Mr. Monsour) You were talking

61:14 with regard -- you mentioned before how

61:15 mannequins don't move. Correct, Dr. Murphy?

61:16 A. They usually don't.

61:17 Q. Right. They -- I agree. They

61:18 usually don't. And one of the points that you

61:19 made with regard to fit was that the mannequins

61:20 don't move. Correct?

61:21 A. Correct.

61:22 Q. And why is it important to

61:23 calculate that or factor that in, in a study

62:01 that is going to be potentially used to

62:02 attribute study response from a mannequin into

62:03 its application for humans?

62:04 A. The reason we use a mannequin for

62:05 the testing is because it would be unethical to

62:06 expose a human to these noise levels.

62:07 Q. Do you --

62:08 A. We could produce hearing loss in

62:09 our human subjects.

62:10 - 63:12 Murphy, William 2021-01-15 2:37

62:10 Q. Okay. Do you -- do you

62:11 necessarily assume that because testing on a

62:12 mannequin that doesn't move reaches a certain

62:13 level of protection that an actual human user

62:14 that does move will get the same protection?

62:15 A. Just one moment. I'm making sure

62:16 that there's nobody knocking on the door. I

62:17 heard something. Do we assume that the person

62:18 who's using the earplug has the same protection

62:19 as what we measure? That, of course, is an

62:20 assumption in any hearing protector

62:21 measurement. If you look at the regulation

62:22 that governs the creation of the noise

62:23 reduction rating for a hearing protection

63:01 device, it is designed to provide one with an

63:02 indication of the potential for the noise

63:03 reduction capabilities of that hearing

63:04 protection device. And so there's no

63:05 regulation in the United States for describing

63:06 the performance of these protection devices in

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 329 of 345
63:07 regards to impulse noise. There is a

63:08 regulation that governs -- and it's 40 CFR 211

63:09 subpart B that describes and regulates how a

63:10 manufacturer is required to measure and report

63:11 the attenuation of a hearing protection device

63:12 for sale in the United States.

63:23 - 65:04 Murphy, William 2021-01-15 2:38

63:23 Q. The first two exhibits that you Re: [63:23 to 65:04]

64:01 looked at, Dr. Murphy, detailed some early Pltf Obj cumulative

64:02 testing that you had done on the product in

64:03 2001 and 2002. Is that correct?

64:04 A. Yes.

64:05 Q. And in both of those studies or

64:06 both of those tests that you performed, you

64:07 mentioned that the third flange of the inserted

64:08 portion of the Combat Arms Version II Earplug

64:09 was just barely touching the outside of the

64:10 artificial canal. Is that correct?

64:11 A. Correct.

64:12 Q. Is it a fair statement to say,

64:13 sir, that because the part that was being

64:14 inserted was barely touching the outside of the

64:15 canal, that the opposing outer flange was not

64:16 pressing upon the artificial ear canal?

64:17 A. It wouldn't have been pressing on

64:18 the ear canal. It may have been in contact

64:19 with the concha, which is the -- if you look at

64:20 your ear, this portion where I'm sticking my

64:21 finger is the concha. It could have been

64:22 contacting the -- the anterior portion of the

64:23 concha. Whether that would provide a force --

65:01 an outward force, you know, a lateral force,

65:02 that would not be the case because if it's just

65:03 a side friction force, it's not going to do

65:04 anything.

69:02 - 69:14 Murphy, William 2021-01-15 1:49

69:02 Q. Right. Re: [69:02 to 69:14]

69:03 A. If you have -- if you have not Pltf Obj incomplete,

69:04 fitted the earplug properly in your ear, you nonresponsive 

69:05 can have very poor attenuation. If you have an

69:06 earmuff that gets moved in the course of firing

69:07 a weapon or something like that, you can end up

SUSTAINED-Nonresponsive

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 330 of 345
69:08 with a threshold shift as a result of that.

69:09 The -- the reason that we did this research is

69:10 because when you fire a weapon that's 150, 160,

69:11 170 decibels at the ear canal -- and I'm only

69:12 talking about small arms fire -- those levels

69:13 are enough to cause immediate threshold shifts.

69:14 And they can be permanent threshold shifts.

70:20 - 72:05 Murphy, William 2021-01-15 2:34

70:20 Q. (Ms. Monsour) Isn't it a fair Re: [70:20 to 72:05]

70:21 statement, sir, that when you're performing Pltf Obj nonresponsive 

70:22 acoustic tests on an acoustic test fixture,

70:23 that because it is not a real ear, the data

71:01 from it is not necessarily representative of

71:02 what will happen in a real ear? Is that a

71:03 fair --

71:04 MS. SASLAW: And again, I'm going

71:05 to -- sorry to cut you off. I'm going to

71:06 object on the basis that it's outside the scope

71:07 of the authorization.

71:08 MR. MONSOUR: Jesus.

71:09 THE WITNESS: Well, I'm -- I'm

71:10 going to answer this question against your --

71:11 over your objection.

71:12 A. And that is that this presentation

71:13 was done in 2002. And we had not conducted any

71:14 analysis of the attenuation as a function of

71:15 frequency and done comparisons with real ear

71:16 attenuation and threshold testing, which really

71:17 is at the heart of this whole -- some of this

71:18 lawsuit that we're dealing with here. And in

71:19 the testing that we did, we were able to

71:20 demonstrate that the attenuations that we were

71:21 seeing for the products was representative of

71:22 real ears in terms of what we were seeing.

71:23 We had measurements of the acoustic test

72:01 fixture in continuous noise. We had

72:02 measurements of the acoustic test fixture in

72:03 impulse noise. And we had real ear attenuation

72:04 and threshold testing with human subjects. And

72:05 the results agree.

SUSTAINED-Nonresponsive

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 331 of 345
Pltf Objections 3M Objections Rulings

6:16 - 6:18 Whiteman, Benjamin 2020-10-23 0:07

6:16 Q. I'm doing well. Could you please

6:17 state your name for the record?

6:18 A. Benjamin Whiteman.

11:18 - 11:23 Whiteman, Benjamin 2020-10-23 0:10

11:18 Q. Okay. Do you know Mr. Luke Estes?

11:19 A. Yes.

11:20 Q. Okay. How do you -- how do you

11:21 know him?

11:22 A. We served together. I was his

11:23 gunner on a tank.

12:01 - 12:12 Whiteman, Benjamin 2020-10-23 1:37

12:01 Q. Okay. And what does it mean to be

12:02 his gunner on a tank?

12:03 A. So he was an officer. He's the

12:04 tank commander, which means that he makes the

12:05 decisions on the tank and maneuvers the tank.

12:06 And I scan for targets and pull triggers.

12:07 Q. Okay. How familiar would you say

12:08 you are with Mr. Luke Estes?

12:09 A. I mean, personally?

12:10 Q. Yeah. Personally.

12:11 A. We never really had a personal. I

12:12 mean, it was all just work-related.

12:17 - 13:04 Whiteman, Benjamin 2020-10-23 1:31

12:17 A. Work-wise I know him pretty well. Re: [12:17 to 13:04]

12:18 But outside of work, we didn't have a Pltf Obj Vague

12:19 relationship.

12:20 Q. Okay. When you say work-wise you

12:21 knew him pretty well, what do you mean there?

12:22 A. Like I knew what he expected day

12:23 to day and everything. I just knew what he

13:01 looked for to be done as a platoon leader, what

13:02 he expected out of his crew and his platoon.

13:03 Q. Okay. And in the work context,

13:04 how often did you interact with Mr. Estes?

13:06 - 13:06 Whiteman, Benjamin 2020-10-23 0:00

13:06 A. Every day. Re: [13:06 to 13:06]

Pltf Obj Vague

13:18 - 13:20 Whiteman, Benjamin 2020-10-23 0:10

13:18 In your working relationship with Mr. Estes,

13:19 how often did you interact with him?

13:20 A. Every day.

3M Affirmatives Plft Counters

OVERRULED

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 332 of 345
14:13 - 14:16 Whiteman, Benjamin 2020-10-23 0:11

14:13 Q. And just so -- there are no

14:14 lawyers representing you who you also

14:15 understand to be representing 3M. Right?

14:16 A. No.

15:22 - 16:02 Whiteman, Benjamin 2020-10-23 0:07

15:22 Q. Okay. Have you ever met with any

15:23 lawyers that you understand to be representing

16:01 3M?

16:02 A. No.

16:16 - 17:07 Whiteman, Benjamin 2020-10-23 1:35

16:16 Q. Other than a lawyer sending you a

16:17 copy of the subpoena, have you ever had any

16:18 e-mail communications with any lawyers

16:19 representing 3M?

16:20 A. No.

16:21 Q. Okay. Have any lawyers from 3M

16:22 ever given you any advice on how to answer

16:23 questions during your deposition today?

17:01 A. No.

17:02 Q. Are you being paid by any lawyers

17:03 representing 3M for your testimony here today?

17:04 A. No.

17:05 Q. And are you being paid by anyone

17:06 for your testimony here today?

17:07 A. No.

25:16 - 25:20 Whiteman, Benjamin 2020-10-23 0:17

25:16 Q. Okay. So when did you join the

25:17 military?

25:18 A. In 2010. I signed my enlistment

25:19 in July and left for basic in November.

25:20 November the 9th if you want to know.

28:07 - 28:14 Whiteman, Benjamin 2020-10-23 0:27

28:07 Q. Okay. And what branch did you

28:08 serve in?

28:09 A. Army.

28:10 Q. Okay. And where did you serve?

28:11 A. I went to basic training at

28:12 Fort Knox, Kentucky. And then my first duty

28:13 station was Fort Benning, Georgia. And my

28:14 second duty station was Fort Hood, Texas.

28:22 - 29:02 Whiteman, Benjamin 2020-10-23 0:15

28:22 Q. Okay. When were you at

28:23 Fort Benning?

29:01 A. I was at Benning from April of

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 333 of 345
29:02 2011 until September of 2014.

29:07 - 29:12 Whiteman, Benjamin 2020-10-23 0:22

29:07 Q. Okay. And did you leave the

29:08 military in 2016?

29:09 A. I left active duty in 2016.

29:10 Q. Okay. Are you still in the

29:11 military today?

29:12 A. I'm in the PA National Guard.

31:22 - 32:19 Whiteman, Benjamin 2020-10-23 1:24

31:22 Q. Let's talk about your time at

31:23 Benning.

32:01 A. Well, the first year I was there,

32:02 I was actually in a mortar platoon, not on

32:03 tanks. And then after my year in the mortar

32:04 platoon, I went to a tank company. And then I

32:05 mean, our day-to-day tasks were maintaining the

32:06 tank, training for gunnery, training just for

32:07 force-on-force in general. And then gear shift

32:08 it and we started doing like riot control

32:09 training.

32:10 Q. Okay. You talked about being in a

32:11 tank company. Can you tell me what it means to

32:12 be in a tank company?

32:13 A. So a tank company is a company of

32:14 tanks. There are -- there's fourteen tanks in

32:15 a tank company. A company is usually made up

32:16 on four platoons. You've got two -- three line

32:17 platoons and a headquarters platoon. Four

32:18 tanks in each platoon. So yeah, that's a tank

32:19 company.

32:20 - 35:20 Whiteman, Benjamin 2020-10-23 4:45

32:20 Q. Okay. And in 2012 was Luke Estes

32:21 a member of your platoon?

32:22 A. Yes. In late 2012, I believe.

32:23 Q. Okay. And how long were you

33:01 all -- were you and Mr. Estes in a platoon

33:02 together?

33:03 A. For just over a year.

33:04 Q. Okay. And within the platoon, are

33:05 people put in the same tank or, you know,

33:06 assigned to a tank and that's the tank you're

33:07 in while you're in that platoon?

33:08 A. Yes.

33:09 Q. Okay. And was Mr. -- were you and

33:10 Mr. Estes in the same tank while you were in

33:11 the same platoon?

33:12 A. Yes. I was his gunner.

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 334 of 345
33:13 Q. Okay. And I think you told me a

33:14 little bit about being a gunner earlier. Can

33:15 you tell me again what that means to be a

33:16 gunner in a tank?

33:17 A. I mean, you're scanning, target

33:18 identification, helping train your crew as in

33:19 your loader and your driver, soldier

33:20 development for the lower enlisted. I mean,

33:21 there's -- there's a lot that goes into it.

33:22 Q. Okay. And are you -- are you the

33:23 one who's pulling the trigger as well?

34:01 A. Yes.

34:02 Q. Okay. And can you tell me about

34:03 like noise inside a tank? Was it -- how loud

34:04 is it inside the tank?

34:05 A. I mean, it's not as loud as you

34:06 would think. It's much louder on the outside

34:07 than it is the inside.

34:08 Q. Okay. Is it different -- is it

34:09 louder for certain people in parts of the tank

34:10 than it would be for other people in parts of

34:11 the tank?

34:12 A. Yeah. Like the driver down in the

34:13 driver's hole, he's pretty much muffled off

34:14 from a majority of the sound because he's kind

34:15 of tucked away. And then everybody in the

34:16 turret more or less is exposed to the -- the

34:17 same amount. I mean, inside of the tank you

34:18 have a steady constant just whining sound like

34:19 it -- everybody hears it. But then as far as

34:20 armament going, the main gun is right -- it's

34:21 to the left of the gunner and the TC. And it's

34:22 directly in front of the loader.

34:23 So the gunner is literally like three to

35:01 four inches away from the main gun breach to

35:02 his left side and then the TC is sitting pretty

35:03 much knees in the back of the gunner in his

35:04 commander's station. And then the loader is on

35:05 the other side of the turret on the other side

35:06 of the breach.

35:07 Q. Okay. And TC, I'm not sure, does

35:08 that stand for tank commander?

35:09 A. Yes.

35:10 Q. Okay. And so who was the driver

35:11 in your platoon while you were in the same

35:12 platoon as Mr. Estes?

35:13 A. Well, the driver for our tank was

35:14 Drew Shupla.

35:15 Q. Okay. And was Mr. Estes the --

35:16 the tank commander for your tank?

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 335 of 345
35:17 A. Yes.

35:18 Q. And was he the platoon leader for

35:19 your platoon?

35:20 A. Yes.

36:06 - 36:18 Whiteman, Benjamin 2020-10-23 1:41

36:06 A. Yeah. Pretty much what did he do Re: [36:06 to 36:18]

36:07 while at Fort Benning, I believe? Pltf Obj 602 - Speculation

36:08 Q. Essentially, yes.

36:09 A. Okay. He -- he -- he was an

36:10 officer. So I mean, what officers do, he took

36:11 care of paperwork, took care of arranging

36:12 training areas for us to train. And then when

36:13 training was happening, he would be down with

36:14 us. He would pop in the motor pool from time

36:15 to time when he wasn't busy in the office.

36:16 Q. So are officers spending most of

36:17 their time in the office or is it -- is it

36:18 something different?

36:21 - 37:05 Whiteman, Benjamin 2020-10-23 0:25

36:21 A. I would -- I would say they spend Re: [36:21 to 37:05]

36:22 more time in the office than they do out on the Pltf Obj 602 - Speculation

36:23 actual tank line.

37:01 Q. Okay. And how often would you and

37:02 Mr. Estes and the other members of your platoon

37:03 and the people in your tank, how often would

37:04 you guys be in tanks while you were at

37:05 Fort Benning?

37:07 - 37:20 Whiteman, Benjamin 2020-10-23 1:40

37:07 A. Like actually in them?

37:08 Q. Yes. Exactly. Actually in them

37:09 together.

37:10 A. I mean, not too often because it

37:11 costs a lot of money to operate the tanks, I

37:12 mean, just in fuel alone. And then we just had

37:13 other things to do. So I mean, I'd say once a

37:14 month to once every two months we would have

37:15 some sort of training exercise that involved

37:16 the tanks.

37:17 Q. Okay. And were you always

37:18 shooting the tanks during these training

37:19 exercises?

37:20 A. No.

37:21 - 38:01 Whiteman, Benjamin 2020-10-23 0:11

37:21 Q. Okay. How often would you be

37:22 shooting a tank while you and Mr. Estes were in

37:23 the same tank and in the same platoon?

SUSTAINED [36:21-36:23] 

(402, speculative)

OVERRULED [37:01-37:05]

OVERRULED [36:06-36:15]

SUSTAINED [36:16-36:18] 

(402, speculative)

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 336 of 345
38:01 A. Annually.

38:02 - 38:04 Whiteman, Benjamin 2020-10-23 0:06

38:02 Q. Okay. So is that once -- like

38:03 once a year?

38:04 A. Yes.

38:05 - 39:09 Whiteman, Benjamin 2020-10-23 2:44

38:05 Q. And were you firing the tanks, you

38:06 know, more than once in that one occasion a

38:07 year or was it just, you know, we're letting

38:08 off one -- one time a year?

38:09 A. Like yeah, I mean, when we went to

38:10 gunnery, it's -- you're firing repeatedly for a

38:11 couple of days on end.

38:12 Q. Okay. So when you said once a

38:13 year, that's -- that's a couple of days

38:14 together?

38:15 A. It's -- it's a week-long gunnery.

38:16 Q. Okay. And can you explain to the

38:17 jury what a gunnery is?

38:18 A. A gunnery is measuring through

38:19 proficiency and precision when it comes to the

38:20 tank to make sure -- I mean, they're checking

38:21 fire commands. They're checking accuracy.

38:22 They're checking, I mean, just to make sure

38:23 that you're a competent crew and you know what

39:01 you're doing.

39:02 Q. Okay. And do you know while you

39:03 were in the tank, did Mr. Estes ever have --

39:04 was he ever the one firing the tank?

39:05 A. Yes. Every gunnery there's a TC

39:06 engagement where the TC shoots. He can

39:07 manipulate the turret and pull triggers from

39:08 his station just as well as I can with my

39:09 gunner controls.

40:07 - 40:09 Whiteman, Benjamin 2020-10-23 0:09

40:07 Q. Okay. Does it surprise you at all

40:08 that Mr. Estes is claiming hearing loss and

40:09 tinnitus via noise exposure from the military?

40:11 - 40:19 Whiteman, Benjamin 2020-10-23 1:34

40:11 A. I mean, a little bit.

40:12 Q. Okay. Well, why do you say a

40:13 little bit?

40:14 A. I mean, granted I was only with

40:15 him for a year -- a little over a year, so I

40:16 don't -- I don't know his full exposure. But I

40:17 mean, within the time that we were together, it

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 337 of 345
40:18 just -- I don't know. I didn't -- I didn't

40:19 expect it.

41:23 - 42:01 Whiteman, Benjamin 2020-10-23 0:03

41:23 How long were you and Mr. Estes in the same

42:01 platoon?

42:04 - 42:05 Whiteman, Benjamin 2020-10-23 0:08

42:04 A. A little over a year. Yeah, a

42:05 little over a year.

42:06 - 42:13 Whiteman, Benjamin 2020-10-23 0:24

42:06 Q. Okay. And you mentioned these

42:07 periods where it was maybe a week together at a

42:08 time at the gunnery. Were there -- were there

42:09 other extended periods of time you would spend

42:10 with Mr. Estes while you two were serving in

42:11 the same platoon?

42:12 A. Yes. During like company and

42:13 battalion exercises.

43:09 - 43:13 Whiteman, Benjamin 2020-10-23 0:17

43:09 Q. And how often would you guys do

43:10 that?

43:11 A. Again, I mean, that was a one- to

43:12 two-times-a-year thing depending on the

43:13 training.

43:14 - 43:18 Whiteman, Benjamin 2020-10-23 0:19

43:14 Q. Okay. While you were at

43:15 Fort Benning and serving with Mr. Estes, did

43:16 you ever see him wearing the Combat Arms

43:17 Earplug Version II?

43:18 A. I don't recall.

44:03 - 44:19 Whiteman, Benjamin 2020-10-23 1:43

44:03 Q. Do you ever recall Mr. Estes Re: [44:03 to 44:19]

44:04 complaining about the Combat Arms Earplugs Pltf Obj Hearsay, 403, 602 -

44:05 Version II? every question in this section

44:06 A. I do not recall.

44:07 Q. Do you ever recall him complaining

44:08 that a Combat Arms Earplug Version II loosened

44:09 in his ear?

44:10 A. I do not.

44:11 Q. Did you ever hear Mr. Estes

44:12 complaining about a Combat Arms Earplug

44:13 Version II falling out of his ear?

44:14 A. I do not.

44:15 Q. Did you ever hear Mr. Estes

44:16 complaining about Combat Arms Earplugs

SUSTAINED (602, 403)

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 338 of 345
44:17 loosening or falling out of his ear and that as

44:18 a result of that, he was exposed to a loud

44:19 noise?

44:21 - 44:23 Whiteman, Benjamin 2020-10-23 0:09

44:21 A. I do not. Re: [44:21 to 44:23]

44:22 Q. Okay. Did he ever tell you any of Pltf Obj Hearsay, 403, 602,

44:23 those things? vague 

45:02 - 45:05 Whiteman, Benjamin 2020-10-23 0:09

45:02 A. No, not that I recall. Re: [45:02 to 45:05]

45:03 Q. Did you ever see a Combat Arms Pltf Obj 602, 403

45:04 Earplug Version II loosening out of Mr. Estes's

45:05 ear?

45:10 - 45:13 Whiteman, Benjamin 2020-10-23 0:11

45:10 A. No. No, I didn't. Re: [45:10 to 45:13]

45:11 Q. Okay. Did you ever observe a Pltf Obj 602, 403

45:12 Combat Arms Earplug Version II falling out of

45:13 Mr. Estes's ear?

45:15 - 45:21 Whiteman, Benjamin 2020-10-23 0:13

45:15 A. No. Re: [45:15 to 45:15]

45:16 Q. During the time you served with Pltf Obj 602, 403

45:17 Mr. Estes, did he ever complain about hearing

45:18 loss to you? Re: [45:16 to 45:19]

45:19 A. No, not that I recall. Pltf Obj Hearsay

45:20 Q. Did you ever have a sense that

45:21 Mr. Estes had hearing loss? Re: [45:20 to 45:21]

Pltf Obj 701, 403, Vague, 401

45:23 - 46:07 Whiteman, Benjamin 2020-10-23 0:26

45:23 A. Not that I recall. Re: [45:23 to 46:07]

46:01 Q. And did you serve with Mr. Estes Pltf Obj 701, 403, Vague, 401

46:02 until 2014? Is that right?

46:03 A. Yes.

46:04 Q. Okay. From 2014 -- or from 2012

46:05 to 2014 while you were serving with Mr. Estes

46:06 at Fort Benning, did you ever notice that you

46:07 he might have hearing loss?

46:11 - 46:18 Whiteman, Benjamin 2020-10-23 0:16

46:11 A. No, I do not recall. Re: [46:11 to 46:18]

46:12 Q. Okay. Was it -- was it ever Pltf Obj 701, 403, Vague, 401

46:13 difficult for you to communicate with

46:14 Mr. Estes?

46:15 A. No, I don't recall.

46:16 Q. Did you ever get the sense that he

46:17 couldn't hear you when you were speaking to

46:18 him?

SUSTAINED (602, 403)

SUSTAINED (602, 403)

SUSTAINED (602, 403)

SUSTAINED [45:15-45:15] 

(602, 403)

OVERRULED [45:16-45:19]

SUSTAINED [45:20-45:21]

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 339 of 345
46:20 - 46:22 Whiteman, Benjamin 2020-10-23 0:06

46:20 A. No, I do not recall.

46:21 Q. Did you ever get the sense that he

46:22 couldn't understand you?

47:01 - 47:05 Whiteman, Benjamin 2020-10-23 0:18

47:01 A. No, I do not recall. Re: [47:01 to 47:05]

47:02 Q. Did it ever appear to you that Pltf Obj 701, 403, Vague, 401

47:03 Mr. Estes couldn't understand others speaking

47:04 to him?

47:05 A. No, I do not recall.

47:07 - 47:09 Whiteman, Benjamin 2020-10-23 0:06

47:07 Q. Did it ever appear to you that Re: [47:07 to 47:09]

47:08 Mr. Estes could not hear sounds around him that Pltf Obj 701, 403, Vague, 401

47:09 you could hear?

47:11 - 47:11 Whiteman, Benjamin 2020-10-23 0:05

47:11 A. No, I do not recall. Re: [47:11 to 47:11]

Pltf Obj 701, 403, Vague, 401

48:02 - 48:14 Whiteman, Benjamin 2020-10-23 1:35

48:02 Q. Okay. Did you ever hear Mr. Estes Re: [48:02 to 48:14]

48:03 complain about tinnitus? Pltf Obj Hearsay, 403 -

48:04 A. No, not that I recall. objecting to every question in

48:05 Q. Did you ever hear him complain this bunch 

48:06 about a ringing in his ears?

48:07 A. Not that I recall.

48:08 Q. Did you ever hear him complain

48:09 about what I think you called a periodic

48:10 muffled or periodically being muffed?

48:11 A. Not that I recall.

48:12 Q. Okay. Did you ever hear Mr. Estes

48:13 complain about any ear discomfort whatsoever?

48:14 A. Not that I recall.

48:18 - 49:05 Whiteman, Benjamin 2020-10-23 0:29

48:18 Q. Okay. Have you and Mr. Estes ever

48:19 been to a shooting range together?

48:20 A. Outside of the military

48:21 qualification range, no.

48:22 Q. Okay. How about the military

48:23 qualification range?

49:01 A. Yes.

49:02 Q. Okay. When did you go to a

49:03 military qualification range with Mr. Estes?

49:04 A. I don't know a specific date. I

49:05 mean, it's -- that's -- yeah, I don't know.

SUSTAINED

SUSTAINED

SUSTAINED

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 340 of 345
49:08 - 49:11 Whiteman, Benjamin 2020-10-23 0:05

49:08 Q. But it would have been in that Re: [49:08 to 49:11]

49:09 timeframe of 2012 to 2014 while you guys were Pltf Obj 403

49:10 at Fort Benning. Is that right?

49:11 A. Yes. Yes.

49:20 - 50:06 Whiteman, Benjamin 2020-10-23 1:31

49:20 Q. And at the military qualification

49:21 range, what -- what did you shoot?

49:22 A. It would have been an M9 range.

49:23 Q. Okay. And so would you both have

50:01 been shooting an M9 at that time?

50:02 A. Yes.

50:03 Q. How many rounds would -- did you

50:04 shoot with the M9?

50:05 A. You're given 40 rounds for

50:06 qualification. 30 targets pop up.

52:09 - 52:11 Whiteman, Benjamin 2020-10-23 0:12

52:09 Q. Okay. So you were at Fort Benning

52:10 from 2011 until September of 2014?

52:11 A. Yes.

52:12 - 52:19 Whiteman, Benjamin 2020-10-23 1:39

52:12 Q. Okay. And while you were at

52:13 Fort Benning, what -- how -- when were you

52:14 serving alongside Mr. Luke Estes?

52:15 A. From 2012 to '14 roughly.

52:16 Q. When in -- when in 2014?

52:17 A. It would have been the earlier

52:18 part of the year. Around -- I went to gunnery

52:19 in May. So probably I'd say in May.

53:06 - 53:11 Whiteman, Benjamin 2020-10-23 0:18

53:06 Q. Have you ever seen Mr. Estes wear

53:07 a CVC helmet?

53:08 A. Yes.

53:09 Q. When have you seen Mr. Estes where

53:10 a CVC helmet?

53:11 A. Any time we were in the tank.

54:12 - 54:15 Whiteman, Benjamin 2020-10-23 0:19

54:12 Q. During the one and a half years Re: [54:12 to 54:15]

54:13 that you served with Mr. Estes, do you have a Pltf Obj Asked and answered,

54:14 memory of ever seeing him wear a Combat Arms 403

54:15 Earplug Version II?

54:18 - 54:18 Whiteman, Benjamin 2020-10-23 0:04

54:18 A. Not that I recall.

OVERRULED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 341 of 345
54:19 - 54:03 Whiteman, Benjamin 2020-10-23 0:25

54:19 Q. Is that because you just don't -- Re: [54:19 to 54:03]

Def Obj Incorrect Counter

55:05 - 55:14 Whiteman, Benjamin 2020-10-23 1:46

55:05 Okay. When -- when in 2012 did you start Re: [55:05 to 55:14]

55:06 serving with Mr. Estes? Pltf Obj Hearsay, 403

55:07 A. I -- I don't recall the specific

55:08 time. It would have been later in 2012.

55:09 Q. About that second half of the

55:10 year?

55:11 A. Yeah.

55:12 Q. All right. So during the one and

55:13 a half years that you served with Mr. Estes,

55:14 did he ever complain to you about hearing loss?

55:16 - 55:16 Whiteman, Benjamin 2020-10-23 0:05

55:16 A. Not that I recall. Re: [55:16 to 55:16]

Pltf Obj Hearsay, 403

55:20 - 55:22 Whiteman, Benjamin 2020-10-23 0:08

55:20 Q. And during the one and a half Re: [55:20 to 55:22]

55:21 years that you served with Mr. Estes, did you Pltf Obj 701, 403, Vague, 401

55:22 ever get the sense that he had hearing loss?

56:01 - 56:01 Whiteman, Benjamin 2020-10-23 0:24

56:01 A. No, not that I recall. Re: [56:01 to 56:01]

Pltf Obj 701, 403, Vague, 401

56:04 - 56:07 Whiteman, Benjamin 2020-10-23 0:20

56:04 From 2012 when you began serving with Re: [56:04 to 56:07]

56:05 Mr. Estes through September of 2014, did Pltf Obj Hearsay, 403, Vague,

56:06 Mr. Estes ever tell you that a Combat Arms 602

56:07 Earplug Version II loosened in his ear?

56:10 - 56:14 Whiteman, Benjamin 2020-10-23 0:17

56:10 A. Not that I recall. Re: [56:10 to 56:14]

56:11 Q. From 2012 through September of Pltf Obj Hearsay, 403, Vague,

56:12 2014, did Mr. Estes ever tell you that a 602

56:13 Combat Arms Earplug Version II fell out of his

56:14 ear?

56:17 - 56:17 Whiteman, Benjamin 2020-10-23 0:26

56:17 A. Not that I recall.

SUSTAINED

SUSTAINED

SUSTAINED

SUSTAINED (403)

SUSTAINED (403)

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 342 of 345
57:13 - 58:01 Whiteman, Benjamin 2020-10-23 1:43

57:13 Q. And we talked earlier a little bit

57:14 about going to the military gun range. Was

57:15 that near Kelly Hill?

57:16 A. Small arms.

57:17 Q. And what -- what are small arms?

57:18 A. Just your personal weapon. So

57:19 nine mil, the M4, those are considered small

57:20 arms.

57:21 Q. Okay. And you went there with

57:22 Mr. Estes?

57:23 A. Yes.

58:01 Q. And when would that have been?

58:04 - 58:04 Whiteman, Benjamin 2020-10-23 0:04

58:04 A. Sometime from 2012 to 2014.

58:05 - 58:08 Whiteman, Benjamin 2020-10-23 0:10

58:05 Q. Through September of 2014 or up to

58:06 2014?

58:07 A. It would have been up until he

58:08 left in 2014. I mean...

58:05 - 58:12 Whiteman, Benjamin 2020-10-23 0:27

58:05 Q. Through September of 2014 or up to

58:06 2014?

58:07 A. It would have been up until he

58:08 left in 2014. I mean...

58:09 Q. Okay. So May or June of 2014?

58:10 A. Yeah.

58:11 Q. And I'm sorry. Remind me again.

58:12 What small arms you would have been shooting at

58:09 - 58:16 Whiteman, Benjamin 2020-10-23 0:26

58:09 Q. Okay. So May or June of 2014?

58:10 A. Yeah.

58:11 Q. And I'm sorry. Remind me again.

58:12 What small arms you would have been shooting at

58:13 the military gun range during that time?

58:14 A. Well, the only one that he would

58:15 have been shooting while I was present would

58:16 have been the nine mil.

60:17 - 60:19 Whiteman, Benjamin 2020-10-23 0:13

60:17 Kelly Hill. How -- how many times a year would

60:18 that have occurred, you going to the small arms

60:19 range with Mr. Estes?

60:22 - 60:23 Whiteman, Benjamin 2020-10-23 0:08

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 343 of 345
60:22 A. One to two times a year. I mean,

60:23 it's an annual qualification.

61:05 - 61:07 Whiteman, Benjamin 2020-10-23 0:12

61:05 Q. Okay. And do you ever recall

61:06 wearing the Combat Arms Earplug Version II

61:07 while you were wearing a CVC or ACH helmet?

61:10 - 61:18 Whiteman, Benjamin 2020-10-23 0:25

61:10 A. I don't recall.

61:11 Q. Would that have been something

61:12 that you would have done or others would have

61:13 done?

61:14 A. Under the CVC, no, because your

61:15 CVC is means of communication throughout your

61:16 crew and radio comms between other vehicles.

61:17 So if you have earplugs, it would be a little

61:18 redundant. ACH, yes.

61:19 - 62:04 Whiteman, Benjamin 2020-10-23 1:37

61:19 Q. And why is that with the ACH? Re: [61:19 to 61:22]

61:20 A. Because the ACH doesn't have Def Obj Relevance (401, 402)

61:21 any -- the CVC muffs out sound. The ACH

61:22 doesn't. It's just open. Re: [61:23 to 62:04]

61:23 Q. So while wearing a CVC helmet, you Def Obj Cumulative (403)

62:01 wouldn't wear a Combat Arms Earplug Version II

62:02 under that. But while wearing an ACH helmet,

62:03 you might wear an earplug under that helmet?

62:04 A. Yes.

62:05 - 62:07 Whiteman, Benjamin 2020-10-23 0:06

62:05 Q. How often would you be wearing a

62:06 CVC helmet while in the tank?

62:07 A. Every time. If the tank is

62:08 - 62:15 Whiteman, Benjamin 2020-10-23 0:28

62:08 moving, again, that's your communication inside

62:09 the tank. It's -- so you have internal comms

62:10 and then you have radio comms. And it all goes

62:11 through the head phones of your CVC. And you

62:12 have a mic on the CVC. I don't know if it's --

62:13 I have a CVC I can show you and an ACH. That

62:14 way, I mean, you can see the difference between

62:15 the two.

63:14 - 63:22 Whiteman, Benjamin 2020-10-23 1:31

63:14 Q. Earlier today I think you told me Re: [63:14 to 63:22]

63:15 that you didn't expect it when I asked about Pltf Obj 611, 402, 402, Vague,

63:16 whether you were surprised that Mr. Estes was cumulative, assumesfacts not

63:17 bringing a hearing loss claim. Do you remember in evidence, 602

SUSTAINED (402)

OVERRULED

OVERRULED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 344 of 345
63:18 that?

63:19 A. Yep.

63:20 Q. Can you tell me why you didn't

63:21 expect that Mr. Estes would bring a hearing

63:22 loss claim?

64:02 - 64:15 Whiteman, Benjamin 2020-10-23 1:38

64:02 A. Well, I mean, I was only with Luke Re: [64:02 to 64:15]

64:03 Estes for a fraction of his military career. Pltf Obj 611, 402, 402, Vague,

64:04 And within the little bit of time that I was cumulative, assumesfacts not

64:05 with him, like, noise exposure wasn't that in evidence, 602

64:06 often.

64:07 Q. And you were with Mr. Estes, I

64:08 think, from -- for about a year and a half. Is

64:09 that right?

64:10 A. Correct.

64:11 Q. And so during that year and a

64:12 half, do I have it right that, you know, in

64:13 your estimation, noise exposure wasn't often

64:14 for you and Mr. Estes while you were serving

64:15 together?

64:17 - 64:17 Whiteman, Benjamin 2020-10-23 0:02

64:17 A. Correct.

66:07 - 66:07 Whiteman, Benjamin 2020-10-23 0:02

66:07 A. I was that guy. Re: [66:07 to 66:07]

Def Obj Relevance (401, 402);

Improper Counter

68:11 - 68:17 Whiteman, Benjamin 2020-10-23 0:14

68:11 Q. All right. You being in the Re: [68:11 to 68:17]

68:12 Army -- well, in the Reserves now, but being in Def Obj Vague; Compound;

68:13 the Army, is it fair that you would defer to Leading (611, 403); Relevance

68:14 what the DoD says and their testing as to (401, 402); Prejudice (403);

68:15 whether or not Mr. Estes has hearing loss Improper Counter

68:16 associated with the full time that he was with

68:17 the -- in the Army?

SUSTAINED (402)

SUSTAINED [64:02-64:10] 

(611)

OVERRULED [64:11-64:15]

SUSTAINED

SUSTAINED

Case 7:20-cv-00137-MCR-GRJ Document 87-1 Filed 03/16/21 Page 345 of 345