Document 8Q9BLo5jrdrz2XXbbgBx86Om

1 1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA 2 PENNSYLVANIA DEPARTMENT OF GENERAL: NO. 284 SERVICES, PENNSYLVANIA : M.D. 1990 3 DEPARTMENT OF TRANSPORTATION, : PENNSYLVANIA PUBLIC UTILITY : 4 COMMISSION, PENNSYLVANIA EMERGENCY: MANAGEMENT AGENCY, and : 5 PENNSYLVANIA DEPARTMENT OF STATE : Plaintiffs : 6 Vs. : UNITED STATES MINERAL PRODUCTS : 7 COMPANY, CERTAINTEED CORPORATION, : COURTAULDS AEROSPACE, INC., : 8 CHEMREX, INC., PHILIPS ELECTRONICS: NORTH AMERICA CORPORATION, : 9 ADVANCE TRANSFORMER COMPANY and : MONSANTOCOMPANY : 10 Defendants : 11 BEFORE THE HONORABLE CHARLES P. MIRARCHI, JR. 12 February 1, 2000 13 Trial testimony in the above-captioned 14 matter, held at the Commonwealth Court of 15 Pennsylvania, City Hall, Courtroom 453, 16 Philadelphia, Pennsylvania, on Tuesday, 17 February 1, 1999, at 9:55 a.m., before 18 John W. Begley, a Registered 19 Professional Reporter - Notary Public there 20 being present. 21 ESQUIRE DEPOSITION SERVICES 22 1880 JFK BOULEVARD - 15TH FLOOR 23 PHILADELPHIA, PENNSYLVANIA 24 215 - 988-9191 ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O619 1 APPEARANCES: 2 2 HUMPHREY, FARRINGTON & MC CLAIN, P.C. 3 BY: KENNETHB.MCCLAIN,ESQUIRE 4 JAMES ZIEGLER, ESQUIRE 5 221 West Lexington - Suite 400 6 Independence, Missouri 64051 7 Phone: 816 - 836-5050 8 Representing the Plaintiffs 9 10 LAW OFFICES OF THOMAS W. HENDERSON 11 BY: THOMAS W. HENDERSON, ESQUIRE 12 One Oxford Center 13 Pittsburgh, PA 15219 14 Phone: 412 - 394-1298 15 Representing the Plaintiffs 16 17 MONTGOMERY, MC CRACKEN, 18 WALKER & RHOADS, LLP 19 BY: JOYCES.MEYERS,ESQUIRE 20 123 South Broad Street 21 Philadelphia, PA 19109 22 Phone: 215 - 772-7452 23 Representing the Defendant Courtaulds 24 Aerospace, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4 HOYLE, MORRIS & KERR BY: SUSAN K. HERSCHEL, ESQUIRE One liberty Place - Suite 4900 1650 Market Street Philadelphia, PA 19103-7397 Phone: 215-981-5770 Representing the Defendant CertainTeed 1 WHITE & WILLIAMS 3 1 --- 5 2 BY: THOMAS M. GOUTMAN, ESQUIRE 2 INDEX 3 KATHY A. O'NEILL, ESQUIRE 3 --- 4 WILLIAM SCHMIDT, ESQUIRE 4 Testimony of: John P. Woodward PAGE 5 WILLIAM YOUNGBLOOD, ESQUIRE 5 By Mr. Goutman 6 6 One Liberty Place - 18th Floor 6 7 1650 Market Street 7 8 Philadelphia, PA 19102 8 9 Phone: 215 - 864-7000 9 10 Representing the Defendant Monsanto 10 11 Corporation 11 12 12 13 DANAHER, TEDFORD, LAGNESE & NEAL, PC 13 14 BY: KENNETH R. NEAL, ESQUIRE 14 15 Capitol Place 15 16 21 Oak Street 16 17 Hartford, Connecticut 06106 17 18 Phone: 860-247-3666 18 19 Representing the Defendant U.S. 19 20 Mineral Company 20 21 21 22 22 23 23 24 24 P f P 1 ESQUIRE DEPOSITION SERVICES P TOWOLDMON0060620 e8 1 MR. EDGE: In the name of the 1 Q. And you have done this all over 2 Commonwealth of Pennsylvania, this 2 the world? 3 Commonwealth Court is now declared open. 3 A. Yes, sir. 4 the honorable Charles P. Mirarchi, Jr., 4 Q. Do you know of anyone who has 5 presiding. Please be seated. 5 done more PCB cleanup work than you? 6 Good morning. 6 A. No, I don't. 7 THE COURT: Good morning. 7 MR.MCCLAIN: Objection,Your 8 I would like to congratulate 8 Honor. This is self-serving testimony. 9 each of the jurors on their ability to 9 How would he know whether anyone has done 10 overcome difficulties and be present and 10 more PCB cleanup work? It is, essentially 11 on time. 11 it is a self-serving question, Your Honor. 12 Mr. Goutman. 12 MR. GOUTMAN: It is 13 MR. GOUTMAN: John Woodward. 13 credentials. 14 MR. EDGE: Just state your 14 THE COURT: Overruled. 15 name for the record, please. 15 BY MR. GOUTMAN: I 16 THE WITNESS: John Woodward. 16 Q. I don't know if the jury heard 17 MR. EDGE: I would remind you 17 the answer. Do you know of anyone who has 18 that you are still under oath. 18 done more PCB cleanup work than you, 19 -- 19 Mr. Woodward? 20 JOHN P. WOODYARD, recalled to 20 A. No, I don't. 21 testify. 21 Q. Are there any standard 22 -- 22 procedures that PCB specialists such as you 23 BY MR. GOUTMAN: 23 follow in cleaning up buildings that have 24 Q. Good morning. 24 PCBs in them? 79 1 (Jurors respond good morning) 1 A. Yes, there are. There's a 2 Good morning, Mr. Woodward. 2 standard series of steps that we typically 3 A. Good morning. 3 follow, those of us who have been doing this 4 Q. Mr. Woodward, I think we ended 4 for a long time, and these have been 5 up with your discussing your conclusions as 5 developed over many, many years. 6 to where the PCBs came from. After the fire 6 Q. Did you help us prepare an 7 were PCBs found in the T&S Building? 7 exhibit that shows these standard steps? 8 A. Yes, they were. 8 A. Yes, I did. 9 Q. To your knowledge, were there 9 MR. GOUTMAN: Your Honor, we 10 any wipe or air samples taken before the fire 10 are going to show the jury Exhibit 3154. 11 that showed PCBs in the building? 11 Can everyone see that? 12 A. No, there were not. 12 (The jury responds yes) 13 Q. Now, do you know how to clean up 13 BY MR. GOUTMAN: 14 PCBs from a building? 14 Q. Can you see it? 15 A. Yes, I do. 15 A. Yes, I can. 16 Q. What kinds of buildings have you 16 Q. Would it be easier if you came 17 cleaned up PCBs from? 17 down to discuss it? 18 A. Again, from last week, the list 18 A. Let's give it a try. 19 is long. It includes apartments, office 19 Q. You are going to have to keep 20 buildings, a number of different multi-story 20 your voice up, Mr. Woodward. 21 buildings, hospital facilities, nursing 21 A. This graphic is entitled. 22 homes, as one example, as well as 22 "Standard PCB Cleanup Procedure". I 23 manufacturing plants, power plants, gas 23 Q. Can everyone hear the witness? I 24 plants, water treatment plants. 24 (The jury responds yes) ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60621 10 1 BY MR. GOUTMAN: 2 Q. Mr. Woodyard. 3 A. This, as I said, this is pretty 4 much a basic step wise procedure that has 5 been developed by those of us who do this 6 over many, many years. 7 Just to, perhaps, illustrate how 8 simple this is, you do this sort of thing 9 probably without even realizing that you are 10 doing it in your daily life. Not necessarily 11 related to PCBs, of course, but day-to-day 12 activities around the house, at work, or what 13 have you. Probably the best illustration of 14 how this procedure goes is through a home 15 illustration of mine. I have a six year old 16 little girl and - 17 Q. The Indian princess? 18 A. Indeed. 19 MR. MC CLAIN: Your Honor, I'm 20 sympathetic to children and all and homey 21 stories, but it's not in the report. 22 MR. GOUTMAN: It is an 23 illustration. 24 THE COURT: The Court 12 1 see what is there. Looking at it and 2 saying, in this case it is very easy to 3 say it is Kool Aid. It's not Pepsi, it is 4 not something else, so you immediately 5 know it is Kool Aid. If it is grape Kool 6 Aid you start to panic because you are 7 worrying about staining the carpet, so you 8 characterize it right away. 9 Risk assessment is involved in 10 the same way. What damage might have been 11 done here by this Kool-Aid? Did it land 12 on the carpet? Did it land on a formica 13 counter top? You do that very quickly and 14 say it is not a problem. I can probably 15 mop this up. 16 The cleanup steps that we go 17 through, obviously there's different 18 things you might do, but you can pretty 19 much group it into two categories. 20 The first one is what we call 21 a gross cleanup, and this is usually what 22 you do is visibly trace, in the case of 23 the Kool-Aid, you are immediately going to 24 grab paper towels or something like that ii 1 recognizes what Mr. McClain has said. It 2 is correct, we are all sympathetic with 3 children. 4 THE WITNESS: Just to help 5 illustrate how this process works, to try 6 to relate it to something you could 7 probably relate to, my little girl, on a 8 fairly regular basis unfortunately, spills 9 Kool Aid and stuff like that. Knocks over 10 glasses of liquid at the dinner table, for 11 example. Using these steps, let's assume 12 we are sitting at the dinner table and she 13 does knock over a cup full of Kool Aid. 14 You go through the same steps. You would 15 go through the same steps very quickly in 16 your mind. 17 The first thing you do is 18 right the glass. Immediately throw down a 19 napkin, paper towel, anything you could 20 find to stop that liquid from moving 21 around or dripping off the table or 22 whatever the situation might be. That's 23 what we are calling containment. 24 Characterization is testing to 13 1 to soak up all the Kool-Aid that you can 2 see. That's this Phase 1. 3 When you are done with Phase 4 1, very quickly, hopefully, you have no 5 visible remains of this Kool-Aid, but what 6 you do have, if you put your hand on it, 7 on that formica counter top, is a sticky, 8 syrupy kind of residue, and you may not be 9 able to see that, but you still need to 10 clean it up. So cleanup Phase 2 is more 11 like a situation you have with your car, 12 where you actually take some Formula 409 13 or detergent out of the cupboard and spray 14 it straight on it again and again to get 15 rid of that stickiness material, feeling. 16 That's that step. 17 The next step is your 18 confirmation, and in the case of this 19 Kool-Aid, the confirmation is, again, that 20 stickiness test. Since you can't see it 21 after you have done this cleaning you 22 might touch it and see if there's any 23 stickiness feeling to it. If there is you 24 clean it again and if there's not you are 9 J v5 f \ ESQUIRE DEPOSITION SERVICE TOWOLDMONOQ60622 14 16 1 satisfied. 1 that is not obvious. You are dealing with 2 And final report is, in that 2 contamination that might be invisible because 3 case I'm done. I need to go tell my wife 3 it so low and that's why we do some of these 4 everything is okay or I need to tell my 4 air and wipe tests, just to make sure that we 5 girl not to do that again, for what that's 5 fully characterize where the PCBs are and, 6 worth, but that final report process is 6 more importantly sometimes, where they are 7 basically the closure documentation. It 7 not, so you make sure you separate those 8 is when you are all done, you take some 8 areas and you don't cross contaminate areas. 9 act to satisfy everybody that you are 9 Q. Why do you do the 10 done, and then you go on. 10 characterization before the cleanup? 11 BY MR. GOUTMAN: 11 A. You always want to know what you 12 Q. Are you saying that Kool-Aid is 12 are cleaning up before you get started. You 13 the same as PCBs? 13 dont want to start mopping or cleaning in an i 14 A. No, of course not, but I think 14 area that is dirty and then moving that 15 the point is that clear that there's a 15 somehow, even though you may not see it, to \ 16 process that you go through and a lot of it 16 the areas that are clean. 17 involves basic common sense. Some of the 17 The third step in this is a risk 18 details in here, risk assessment, types of 18 assessment, and that, we have talked about 1 19 cleanup techniques, of course, are going to 19 that a lot, I think. That's the process you 20 vary for PCBs, but the basic principals of 20 go through, when scientists look at the type 21 process, the process that you go through, is 21 of facility where the PCBs may have been 22 the same. 22 released. Look at the work habits. Look at 23 Q. Could you take us through the 23 the other things that factor into to 24- process with respect to PCBs? 24 determining the safe level, and they do the 15 17 1 A. In the case of a PCB release, 1 calculations to develop what that safe level 2 the first thing you do is, again, it is 2 is. 3 containment. It is identifying where the 3 And the risk assessment is specific 4 release occurred and making sure you separate 4 to the particular building that we are 5 that area from areas that are clean. 5 talking about. It's not a general national 6 Q. Why do you want to do that? 6 number; it is something that would be very 7 A. To avoid cross contamination, to 7 specific, say, to the Transportation & Safety I 8 avoid having people track through it. Like 8 Building or this courtroom or what have you. 9 the Kool-Aid, if it hits the floor you dont 9 It factors in all of the work habits and 10 want people walking through it around the 10 occupancy of the building. 11 house. The same thing is true in a release 11 Cleanup Phase 1 and Phase 2 are very 12 like this. You dont want people tracking 12 much like what I was describing before. 13 it, you dont want dust or other debris to be 13 Maybe somewhat more sophisticated, maybe 14 carried back and forth in a room that has got 14 bigger, of course, in the case of a PCB 15 the PCBs and one that does not, so you are 15 release, but your Phase 1 is to remove 16 trying to limit the extent of the cleanup at 16 debris, remove liquid that may have been '1 I 17 that point. 17 spilled on the floor, if it is a transformer 18 Characterization, the second step, 18 leak, but whatever, what you want to do 19 is testing to see what is there. We have -- 19 immediately is get anything that you know 20 a lot of people have talked about this in 20 contains a lot of PCBs from that release and 21 this trial. It is the process of collecting 21 get it out of there because all it is going 22 samples to determine where the PCBs might be 22 to do is raise the possibility of this cross 23 and at what levels they might be there, and a 23 contamination, have people tracking it 24 lot of times you are dealing with something 24 around, moving it around, so the first thing I ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60623 18 1 you do is remove those kinds of visible 2 traces. In the T&S Building it might be 3 soot. It certainly is burned up bags of fire 4 debris and things of that nature. 5 The second phase of cleanup is the 6 fine tuning. After you have removed all of 7 the PCBs or what you suspect that are PCBs 8 that you can see, you start to sample because 9 there are going to be levels there that you 10 may be able to see and you want to make sure 11 they are below that safe level, so you go 12 through and make a more meticulous job of 13 cleaning with special solvents, but you use 14 certain wiping procedures. Instead of just 15 wiping around like you do on your kitchen 16 counter, you actually don't move the 17 contamination. You wipe it and fold the wipe 18 on the clean side. A lot of meticulous work 19 goes on during this phase when you get into 20 it, but it is much like I was describing with 21 that Kool-Aid spill. 22 Confirmation sampling is the testing 23 that you do when you think you are done, to 24 prove that you are done, so if you have done 20 1 much the standard used on any type of 2 release, big or small. 3 Q. Over what period of time has 4 this standard PCB cleanup procedure 5 developed? 6 A. 15 or 20 years. 7 Q. 15 or 20 years? 8 A. Yes. At least. 9 Q. Now, based upon your review of 10 the test data, how much of the T&S Building 11 would have required cleanup using the 19.8 12 risk assessment value? 13 A. Virtually none. It was -- all 14 the levels on the floors were below. 15 Q. Using the test data that you 16 have analyzed, the thousands and thousands 17 and thousands of tests, how much of the T&S 18 Building after the fire required cleanup to 19 meet the EPA safe level? 20 A. The statistics showed about five 21 percent that would have still required 22 cleaning. 23 Q. Only five percent - 24 A. Correct. 19 1 this Phase 1, Phase 2 cleaning in one of the 2 rooms, you go in and you take samples and you 3 determine, based on those sampling results, 4 whether you are, in fact, clean. If you are, 5 block it off and make sure nobody tracks 6 anything back in there, but you use this 7 confirmation sampling as final proof, 8 basically, that you are clean. 9 And then final report, what we in 10 the business often call closure 11 documentation, meaning you document all of 12 these things. You say what you have cleaned. 13 You include a risk assessment, 14 characterization data, but most importantly 15 this confirmation sampling data, all of the 16 information that occupants and building 17 owners would need to feel that you have met 18 that safe standard, whatever it is, whether 19 it is EPA or whatever the risk assessment is 20 based upon. 21 Q. How many times have you, over 22 the years, followed this standard PCB cleanup 23 procedure? 24 A. Dozens of times. It is pretty 21 1 Q. -- needed cleanup? 2 A. Correct. 3 Q. Now, have you prepared an 4 exhibit, a diagram, applicable to the T&S 5 Building showing how the T&S Building could 6 have been cleaned after following these 7 standard procedures? 8 A. Yes, I did. 9 MR. GOUTMAN: Your Honor, we 10 are showing the jury Exhibit 3155. 11 MR. MC CLAIN: This is the 12 same one that is in the report? 13 MR. GOUTMAN: Yes. 14 This one is pretty big. 15 Can the members of the jury 16 see that? (Indicating) 17 (Jury responds yes). 18 BY MR.GOUTMAN: 19 Q. Now, this is titled, "Schedule 20 of Fire Cleanup"; is that correct? 21 A. Yes, sir. 22 Q. And what does this represent? 23 A. This represents the schedule and 24 steps that I would go through to clean up the 1 ] ESQUIRE DEPOSITION SERVICES 4 TOWOLDMONOQ60624 l 22 24 1 T&S Building under what I'm calling the worst 1 through that process and find, as I have in 5 I 2 case situation, meaning that there are levels 2 some cases, that there are no PCBs or the 3 throughout the building above this EPA safe 3 levels are well below a safe standard, you 4 standard which, as the data shows, that's not 4 don't go any further. You opt out of this 5 the case at all, but please assume the worst 5 whole schedule, but let's assume for this 6 case. These are the steps that you would 6 worst case scenario we found that the levels 7 have to go through and how long it would 7 are above ten. 8 take. (Indicating). 8 The next week you are spending 9 Q. And just so we can orient 9 communicating with EPA, reviewing the 10 ourselves, how many weeks from soup to nuts 10 sampling results, preparing a more detailed 11 does this take? 11 sampling plan based on what you found the 12 A. 12. 12 first time. You are starting to get into } 13 Q. 12 weeks? 11 14 A. Yes. 13 more detail on where the PCBs would be. 14 In the third week you begin 15 0. Now, can you take The Court and 15 actually doing a broader test. You might 16 the jury through this schedule of fire 16 actually bring lab equipment on to the site 17 cleanup? This worst case scenario as you 17 if you are going to be taking a lot of 18 have called it. 18 samples and running the samples right there. 19 A. Just to get you oriented because 19 A lot of this equipment is not bigger than a 20 this is a pretty busy picture, this is a 20 big microwave, so it's not that hard to move 21 diagram, schedule, chart, that we would use 21 it around and set up next door and start 22 on a lot of projects. What this shows down 22 running tests all the time, so you are 23 the left side is a series of steps that are 23 reviewing the test results as you get them 24 pretty much an extension of the seven steps 24 back and deciding from that what floors need 23 1 that I showed you before, but including more 1 what type of cleaning, what levels are 25 2 detail. Across the top is the schedule and 2 present. Pretty basic. You see it follows 3 these blue lines across here represent what 3 that same seven step process that I was 4 we call duration. It is how long it would 4 talking about before. At some point you are 5 take from start to finish. Roughly when that 5 going to start looking at cleanup standards, 6 activity would start, how long would it take 6 you are going to, in a PCB release, look at 7 and roughly when it would finish, so you can 7 the safe standard, depending on the scenario 8 see there's kind of a sequence that goes on 8 that you are involved in or the type of 9 dining the course of the project. Once you 9 building that you are likely to do a risk 10 get that it is pretty easy to follow. 10 assessment to set a clean level specific to 11 (Indicating) 11 that location and see how that matches up 12 these activities over here, as I 12 with EPA's safe standard, and then at that 13 said, are additional detail on top of the 13 point you have pretty much decided how much 14 seven that I already provided. (Indicating) 14. cleaning needs to be done, and from that 15 in this case I'm arriving at the 15 point on you are identifying where the waste 16 site immediately after the fire. Assessing 16 is going to go, selecting a contractor to J 17 the condition. Doing initial sampling. 18 That first week is taken up with 17 come in and do the work, developing the scope 18 for the project and so forth, and you get 19 getting familiar with the situation, 19 down into this area, this last line, building 20 collecting some samples, looking for PCBs, 20 clearance. Remember I talked about 21 getting a sense for where they may be, where 21 confirmation sampling before? That's all 22 they may not be, and beginning to start 22 this is. If you got a multi-story building 23 planning more in depth work, depending on how 23 you are probably going to be finishing up 24 those results go. Now, of course, if you go 24 different floors at different times. You are ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60625 26 1 working on all of them at the same time, but 2 as you get done within a given area you take 3 samples, satisfy yourself you are done, you 4 block it, document it, block it up and move 5 on and this process, as we said before, would 6 take about 12 weeks for the T&S Building 7 based on what we know. 8 Q. If, in fact, the levels are as 9 you say they were, the tests results safe 10 they were, on average less than ten 11 micrograms, would all of this be necessary? 12 A. No, you would be focusing 13 specifically on the areas where you found the 14 elevated levels and cleaning those, so the 15 amount of time it would take to get the work 16 done, the amount of sampling that you need to 17 get done would be much shorter. It might 18 take as little as three or four weeks to do 19 that. 20 Q. So this schedule of fire cleanup 21 means what in terms of PCB levels? 22 A. It assumes that the levels on 23 all of the floors are above the EPA's safe 24 standard, so there's a cleaning required 28 1 The Court: We will have it at 2 side bar. 3 (Side bar discussion). 4 MR. MC CLAIN: As The Court 5 will recall, we didn't claim Cocciardi's 6 sampling as damages in the case, and now 7 the comparison is being made to what he 8 says our damages are and what we paid 9 Cocciardi. That would be misleading to 10 the jury as if to say they are seeking to 11 have us pay for this cost of Cocciardi's 12 sampling versus what they now want us to 13 pay in cleanup. That would be false, and 14 so if The Court is going to allow him to 15 ask this, The Court has to clarify that we 16 are not seeking Cocciardi's sampling costs 17 as part of our damages. That would be 18 unfair. 19 MR. GOUTMAN: Your Honor, this 20 Court made a ruling that the jury was 21 entitled to hear about Cocciardi's 22 sampling costs because it was relevant to 23 our failure to mitigate damages claim. 24 The evidence is, and it is in his report, \ .i 27 1 everywhere and you need to go through this 2 more deliberate process to get to clean up. 3 Q. And were they, in fact, above 4 the EPA level? 5 A. No. 6 Q. Now, sir, taking this as you 7 said, worst case scenario post fire cleanup, 8 can you tell the jury how much it would have 9 cost, assuming again the levels were much 10 higher than they actually were in the T&S 11 Building? 12 A. I estimated that the cost of the 13 worst case cleanup would have been $4 14 million. 15 Q. How much did the government 16 spend on all of the environmental contractors 17 they hired? 18 MR. MCCLAIN: Your Honor, I 19 object. He is comparing apples to oranges 20 and we need a side bar on this. 21 MR. GOUTMAN: That's a 22 speaking objection, Your Honor. I object 23 to that. 24 MR. MCCLAIN: I object. 29 1 by the way, that they spent $15 million on 2 an assortment of unqualified environmental 3 contractors who did over 20,000 tests and 4 they never did any cleanup. Mr. Woodward, 5 according to Mr. Woodward, the worst case 6 scenario is they could have cleaned up the 7 whole building for $4 million. That's 8 highly relevant to our defense, Your 9 Honor, and it is comparing apples to 10 apples. It is money spent on 11 environmental contractors, in one case $15 12 million and they were getting nothing for 13 it; in our case they could have spent $4 14 million and gotten a clean building. 15 MR. MCCLAIN: Your Honor, the 16 issue is the jury will be led to believe 17 that we are seeking these as damages from 18 Mr. Goutman, which we are not, so they at 19 least ought to be instructed that this vis 20 is not part of Plaintiffs'claim. The 21 amounts that were discussed that were 22 spent on contractors are not being sought 23 as damages against Mr. Goutman. The 24 suggestion to the witness now will make it ESQUIRE DEPOSITION SERVICES ! } TOWOLDMONOQ60626 30 32 1 appear to the jury that, in fact, it is 1 not going to make that suggestion to the 2 part of it. Now, the witness wont know 2 jury. That would not be a fair 3 that unless Mr. Goutman has told him about 3 characterization of those numbers. 4 what we are seeking in damages, but The 4 MR. GOUTMAN: Frankly, we are 5 Court knows it and we are not seeking 5 once again at a point where Mr. McClain is 6 these numbers as damages in the case, and 6 discussing avenues of Cross examination 7 so it would be inappropriate to allow this 7 and not admissibility. He discusses in 8 question to go on because there's no way 8 this report the $15 million as contrasted fl 9 to cross examine it, so without some 9 with the $4 million. He should be able to 10 clarification from The Court as to what 10 say that to the jury. If Mr. McClain 11 purpose this is being allowed for and some 11 wants to make a point on Cross 12 clarification for the jury that the 12 examination, let him, but this is my case. 13 Plaintiff isn't seeking the environmental 13 MR. MC CLAIN: If what you are 14 contractor damages in this case, this is 14 saying is that it is a permissible 15 only for purposes of illustration of this 15 question to say and you are aware, are you 16 witness's testimony or some other 16 not, Mr. Woodward, that the Plaintiff is 17 appropriate instruction that The Court 17 not seeking those as damages in this case, 18 would deem proper, then it will be 18 then you are right. I can correct that on \ 19 misleading and there's no way to correct 19 Cross examination, but he has objected in 20 it. 20 the past and The Court sustained that 21 MR. GOUTMAN: Your Honor, this 21 objection because how would the witness 22 is all argument on Plaintiffs' counsel's 22 know what I'm seeking as damages. The 23 part. In fact, they are claiming 23 problem is that the way this is proceeding 24 environmental contractor costs: Gannett 24 is that Mr. Goutman gets away, maybe 31 33 1 Fleming, Pennoni, CRSS, those are 1 inadvertently, with creating a 2 environmental contractors' costs that went 2 misimpression in the jury's mind that I'm 3 in as part of their case. It is true, 3 seeking these damages from him, and I'm 4 they are not claiming some of them and 4 not, so it would not be appropriate to 5 they announced that in the middle of the 5 allow this and then not allow the Cross 6 trial, in the middle of my Cross 6 examination at least so I'm trying to -- 7 examination, Your Honor, but that was the 7 THE COURT: But these were 8 first time we were told that. 8 sums expended and to that extent it is not 9 MR. MC CLAIN: Why is it 9 a misstatement that these were sums 10 included in this number? It is not in 10 expended, and the fact that you are not 11 this report, how he gets to this number. 11 seeking the damages is something that you 12 He says it is all of this testing that 12 could bring out if that be the case. 13 didn't go into cleanup. PennDOT, Gannett 13 MR. MCCLAIN: Fine. I 14 Fleming, all of those were clean up 14 THE COURT: Ms. Herschel, you 15 numbers, so if you are representing to the 15 were -- m 16 jury that these numbers didn't go towards 16 MS. HERSCHEL: I was just 17 the cleanup, that would be false, so I 17 going to say, Your Honor, it sounds like 18 thought you were talking about Cocciardi's 18 you have ruled, so you don't need to hear 19 numbers and that's that $15 million number 19 from me. I always shut up when the ruling 20 that you have, for Cocciardi; not with 20 is finished. 21 Gannett Fleming, Pennoni, and the others. 21 MR. GOUTMAN: May I proceed, 22 Those people were employed to help 22 Your Honor? 23 decontaminate the building before the 23 THE COURT: Yes. 24 building was demolished, so I hope you are 24 BY MR. GOUTMAN: ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60627 34 1 Q. I think my question was, sir, 2 how much did the government spend on an 3 assortment of governmental contractors? 4 A. They spent about $15 million. 5 Q. And can you tell the members of 6 the jury how much cleanup they got for that 7 $15 million? 8 A. None. Virtually none. 9 Q. What did they get for that $15 10 million, sir? 11 A. 20,000 or more samples, a 12 specification to begin abating before 13 demolishing the building. Not much more. 14 Q. Sir, was this standard PCB 15 cleanup procedure followed by the government 16 in this case? 17 A. No, certainly not in the first 18 two-and-a-half years. 19 THE COURT: Could we get 20 Mr. Woodward to stand closer to the 21 microphone? 22 MR. GOUTMAN: I think you are 23 dropping your voice. 24 THE WITNESS: Sorry, Your Honor. ' 36 1 A Yes, I have. 2 Q. And, bottom line, what did the 3 government do? 4 A The government made a series of 5 major mistakes that ultimately resulted in no 6 cleanup for most of the two-and-a-half years 7 we are talking about. 8 MR. GOUTMAN: Your Honor, can 9 I now turn this over? (Indicating). 10 THE COURT: Yes. And that is 11 exhibit number -- 12 MR. GOUTMAN: I'm sorry. Your 13 Honor. It is Exhibit Number 3120 A, as in 14 Andrew. 15 BY MR. GOUTMAN: 16 Q. Now, this exhibit is entitled 17 what, sir? 18 A. It is entitled, "The 19 Government's Mistakes". 20 Q. Can the members of the jury see 21 this? 22 (The jury responds yes) 23 Could you start with number one. 24 That's a good number to start with. 35 1 I'm trying really hard not to use that other 2 microphone because of the feedback. 3 MR. GOUTMAN: Did The Court 4 hear the last answer? 5 THE COURT: No. 6 Please read back the last 7 question and answer. 8 (The last question and answer 9 were read back by the Court Reporter) 10 BY MR. GOUTMAN: 11 Q. This standard cleanup procedure 12 has been around for how long? 13 A. 15 or 20 years in some form. 14 Q. What did the government do if 15 they did not do the standard PCB cleanup 16 procedure? 17 A. The government did a textbook 18 job basically of doing all -- everything 19 wrong. There was no relationship between 20 what they did and what was done or what I'm 21 proposing should have been done here. 22 Q. Have you prepared an exhibit 23 that outlines your views on what the 24 government did? 1A. A. The first item I have listed 37 2 here is ignored established procedures. We 3 spent a lot of time a little while ago 4 talking about how to go about cleaning up PCB 5 spills. I think you probably understand that 6 by now. That set of established procedures 7 was never followed during the course of this 8 project. 9 Second item, hired inexperienced 10 contractors. The state began this process 11 with Mr. Cocciardi back when the fire 12 occurred. He remained on the project for 13 several years. He had no experience doing 14 work of this nature. 15 Q. Now, DGS hired Cocciardi. 16 A. Correct. 17 Q. Who did PennDOT hire? 18 A I don't recall. 19 Q. Was it Kimball and Associates? 20 MR. MC CLAIN: Your Honor, it is 21 leading. 22 MR. GOUTMAN: There's no 23 dispute as to who this contractor was. 24 MR. MCCLAIN: It is still \I 1 | i i ESQUIRE DEPOSITION SERVICES t TOWOLDMONOQ60628 t 4 38 40 \ 1 leading. If the witness doesn't remember 1 The objective on releases like this is always 2 who our contractor was that's significant. 2 quick, safe reoccupancy. Get back in as fast 3 THE COURT: Sustained. 3 as you can. Make sure you don't compromise 4 BY MR. GOUTMAN: 4 the safety of the employees and do a good 5 Q. DGS hired Cocdardi. Now, did 5 job. This project had no such objective, it 6 Mr. Cocdardi have any prior experience in 6 is obvious from the evidence. 7 any projects of this type and scope? 7 Number four, this -- 8 A. No. 8 Q. Why don't we step back a second 9 Q. How about PennDOT's contractor? 9 and you tell us what was the sequence of 10 MR. MC CLAIN: He doesn't 10 events after the fire, sir? 11 remember who it was. 11 A. The state used their emergency 12 MR. GOUTMAN: Whether he 12 response contractor.? 13 remembers the name, how about PennDOT's 13 Q. Yes. j 14 contractor? Did it have any prior 14 A. They used their emergency 15 experience in projects of this type and 15 response contractor to get somebody on board 16 nature? 16 to handle asbestos related issues and contain 17 MR. MC CLAIN: Your Honor, 17 the fire floors, four through seven, as you 18 when he was asked a direct question he 18 have probably heard before. At some point 19 said I don't remember. 19 shortly thereafter, maybe a couple weeks 20 MR. GOUTMAN: The name, Your 20 later, they found out that the PCBs were 21 Honor. 21 present in the building because of some 22 THE COURT: As The Court 22 materials that they had seen burned. During 23 understood it, it was that Mr. Woodward 23 that two week period or three week period 24- didn't remember the name. 24 they had already hired contractors to come in 39 41 1 MR. GOUTMAN: That's correct. 1 and clean up soot and deodorize the building 2 THE COURT: You may determine 2 and prepare it for reoccupancy, independent 3 whether or not he had any recollection as 3 of the PCB issue. 4 to that contractor and if did he what it 4 Q. Number four says what? 5 was. 5 A. Number four refers, it says 6 BY MR. GOUTMAN: 6 ordered a superficial cleanup and what we are 7 Q. Do you have any recollection as 7 talking about here is a -- is basically the 8 to that contractor about that contractor's 8 mopping and cleaning and wiping and 9 background in PCBs and performing the work 9 deodorizing that they hired the contractor to 10 that it was hired to perform by PennDOT? 10 do within the first week or two after the 11 A. Yes, they had no experience 11 fire. It doesn't refer to a PCB cleanup, it 12 doing work of this nature. 12 doesn't use the same procedures I was talking 13 Q. What, if any, significance is 13 about before to make sure that you are 14 there to hiring inexperienced contractors on 14 cleaning it up and not spreading it around. 15 a PCB project? 15 All of the bases that go into this 16 A Well, if you hire a contractor 16 established procedure really weren't followed 17 that has not done this kind of work before 17 here because their goal wasn't to clean up 18 they are not going to know anything about 18 PCBs. 19 established procedures, understanding the 19 Q. When they were doing the 20 government's regulations, and how to use them 20 superficial cleanup had PCBs been identified 21 and interpret then. You are just setting 21 in the areas that they were cleaning up? 22 yourself up for failure. 22 A. Yes, they had or at least the I 23 Q. Number three. 23 possibility that they had been released had 24 A. Number three, had no objective. 24 been identified. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60629 42 1 Q. On the occupied floors had PCBs 2 been identified at the time they were doing 3 the superficial cleanup? 4 A, No, they had not been measured. 5 Q. By the way, should you do a 6 cleanup when you don't know what you are 7 cleaning up? 8 A. No, you would always want to 9 figure out what it is you are cleaning 10 because it makes a difference in how you 11 clean, what detergents you use. Things like 12 that basically. 13 Q. And did the state do that? 14 A. No. 15 Q. How much did this superficial 16 cleanup cost? 17 A. About $1.2 million. 18 Q. Number five. 19 A. Number five, never performed a 20 risk assessment. As we outlined before, it 21 is always good in a situation like this to do 22 some type of cleanup standard setting using 23 information specific to the building. There 24 was never a risk assessment performed as part 44 1 would be that was appropriate to it, they 2 sent people back into the building to go to 3 work again after they had finished that soot 4 cleaning and deodorizing that we walked 5 about. 6 Q. And how many years did the 7 people remain in the building without having 8 a risk assessment being done? 9 A. About two-and-a-half years. 10 Q. Is that standard procedure? 11 A. No, in a situation like this you 12 would never reoccupy until you had better 13 information and had some reasonable assurance 14 that the people would be safe, the levels 15 were below the safe standard. 16 Q. By the way, what were the levels 17 in this building? 18 A. The levels after that initial 19 janitorial cleaning was less than ten 20 micrograms on average on just about every 21 floor. 22 Q. Number seven. 23 A. Number seven, ordered perpetual 24 containment and monitoring without clean up \ 43 1 of this project to set standards or decide 2 what the targets were going to be before they 3 started cleaning. 4 Q. How much would it have cost the 5 state to do a risk assessment? 6 A. For this kind of project maybe 7 ten or $20,000. 8 Q. Did they ever do one? 9 A. No. 10 Q. What is the standard procedure 11 regarding risk assessment? Are risk 12 assessments done on projects like this? 13 A. All the time.All the time. 14 Q. Number six. 15 A. Number six,the state ordered 16 reoccupancy before the characterization and 17 risk assessment. 18 Q. Now, you just have to take us 19 through that. They ordered reoccupancy 20 before characterization and risk assessment. 21 What do you mean by that? 22 A. Before they had determined what 23 the levels of PCB were in the building and 24 before they determined what the safe level 45 1 of fire floors. 2 Q. Now, what do you mean by that, 3 perpetual containment and monitoring? 4 A. When I'm talking about perpetual 5 containment, what I'm referring to is the 6 fact that floors four through seven, which is 7 where visible traces of fire damage had been 8 or at least a buffer around that, were closed 9 off. They were vacated. There was 10 ventilation installed to exhaust those floors 11 so that any PCBs from those floors couldn't 12 get around the rest of the building. That 13 portion of the building was closed off for 14 two-and-a-half years until the building was 15 ready to be abated and demolished. 16 Q. Was that containment done before 17 or after PCBs were found in those floors? 18 A. It was done originally before 19 because of the asbestos hazard. 20 Q. And you have, you say, perpetual 21 containment and monitoring. What do you mean 22 by that? 23 A. Once those floors were closed 24 off, there were still debris bags and other J :j ESQUIRE DEPOSITION SERVICES TOWOLDMON0060630 46 . 48 i 1 things on the floors. The state, through 1 What do you mean by that? | 2 their contract with Cocciardi, continued to 2 A. Again, that goes back to this 3 order sampling, air sampling, some wipe 3 extended monitoring program that was going 4 sampling, as well as a lot of other types of 4 on. Not only lab tests and air samples and 5 monitoring, fire watches and so forth on 5 wipe samples that were being done over 6 those floors, for the whole time. 6 two-and-a-half years, that could have been 7 Q. How much did all of this 7 avoided if the cleanup had just been done 8 containment and monitoring cost the state for 8 right away, but also these fire watches and 9 two-and-a-half years? 9 monometer readings and other activities they 10 A. Cocciardi's contract, if that's 10 did on these isolated floors that they could 11 what we are talking about, was on the order 11 have stopped within a matter of a weeks if 12 of $9 million or more. 12 they had just cleaned it up. 13 Q. Is there any reason, based upon 13 Q. I think you indicated that they 14 your experience as a PCB specialist, that 14 had done over 20,000 tests. m 15 those fire floors couldn't have been cleaned 15 A. Yes. 16 up in the first 12 weeks as shown on your 16 Q. Had they simply cleaned up the 17 schedule? 17 building in 12 or fewer weeks, would those 18 A. They certainly could have been 18 20,000 tests have been necessary? 19 cleaned up right away. In fact, having those 19 A. No, most of them would have been 20 cleaned floors would have given the state 20 totally unnecessary. 21 some flexibility or I guess what they call 21 Q. Permitted excessive 22 swing space to allow them to move people to 22 environmental contractor costs, what do you 23 those floors while they took care of others, 23 mean by that? 24 while there was additional work to do. 24 A. Well, we already talked about 47 49 1 Q. I think you mentioned earlier 1 how they spent $15 million before they ever 2 about the Phase 1 cleanup, cleaning up the 2 started doing any serious cleaning in the 3 worst first? 3 building after that two-and-a-half years. 4 A. Yes. 4 They also, because of the procurement 5 Q. Is that consistent with what the 5 process, the way they hired contractors 6 state did? 6 through the state, managed to keep 7 A. No, there was debris, there was 7 Mr. Cocciardi on board to keep his monitoring 8 dust, there was other material on those 8 program going instead of hiring people that 9 floors that was an accident waiting to 9 knew how to do cleanups, and there were 10 happen. It was just contamination from PCBs 10 several. They advertised, they received 11 that were just waiting to move around the 11 proposals. There were several companies that 12 building through tracking or ventilation or 12 responded that were qualified to do this kind 13 other means. 13 of work right away, but the state instead 14 Q. I think there was testimony that 14 hired Mr. Cocciardi again, even though he was 1 15 Mr. Cocciardi did tens of thousands of first 15 the most expensive, so that's what I'm 16 aid kit inspections, monometer readings, so 16 referring to when I'm talking about excessive 17 forth and so on. Would any of that activity 17 environmental contractor costs. They are not 18 be necessary had they simply cleaned up the 18 only wasting time, but spending more money. 19 fire floors? 19 Q. No systematic oversight. What 20 A. Hardly any of it because they 20 do you mean by that? 21 would have only had to do that work for a 21 A. Well, it was kind of like the 22 period of a few weeks while they were doing 22 blind leading the blind. Aside from the 23 the cleanup. 23 contractors not having any experience doing 24 Q. Eight, ordered wasteful testing. 24 this kind of work, the people managing them ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60631 50 1 at the state had no experience doing this 2 kind of work either, so they couldn't even 3 watch and manage or control the work that was 4 being done. 5 Q. So you have inexperienced 6 contractors -- 7 A Inexperienced contractors. 8 Q. And who is supervising them? 9 A. Inexperienced state employees. 10 The 11th, last one, no 11 systematic cleanup. It is amazing to me that 12 no work was done on these floors in this 13 building for two-and-a-half years, that 14 cleanup plan wasn't developed, the protocol 15 that we talked about here just wasn't 16 followed. It was a tremendous waste of time 17 and a tremendous waste of money. 18 Q. Now, sir, there has been talk, 19 you have been talking about cleaning up to 20 the EPA level or to the risk assessment 21 level, either ten or 19.8. Is there any 22 reason why they couldn't have cleaned up to 23 the NIOSH level if that was their preference? 24 A. No, not at all. They could have 52 1 Q. And what conclusions did you 2 draw from that data? 3 A. The contents strategy was 4 unnecessary. The surface contamination 5 levels were well below the EPA safe standard. 6 Reminding you, again, the samples that were 7 being taken by Cocciardi and others in the 8 building were sampling the same office 9 equipment, so there were no surprises. When 10 they finally did take hard surface samples, 11 if you will, and they also sampled what I 12 will call soft surface items, foam chairs and 13 other materials that you couldn't wipe, they 14 are made of cloth and so forth. They found 15 an average in those pieces of office 16 furniture two parts per million in all of the 17 samples that they collected. The Food and 18 Drug Administration has standards for food -- 19 MR. MCCLAIN: Your Honor, I 20 object. It's not in his report. 21 MR. GOUTMAN: Contents 22 strategy is discussed. Your Honor, at 23 pages two and 26. 24 MR. MC CLAIN: The Food and 51 1 cleaned up to that lower level if it was 2 their preference. 3 Q. Now, sir, are you familiar with 4 the contents strategy? 5 A. Yes, I am. 6 Q. And could you remind the jury 7 what the contents strategy was? 8 A. The state elected to deal with 9 the furniture and other building contents 10 that were being relocated under a separate, 11 what I will call, an environmental contract 12 where they had somebody testing or developing 13 a testing program, doing testing on furniture 14 and determining if there was any, at least in 15 their view, any additional cleaning that was 16 needed before that furniture could be used 17 again. 18 Q. Was it just furniture? 19 A. No, all building contents. It 20 was office equipment, partitions, things like 21 that. 22 Q. Did you review the test data 23 generated during this contents strategy? 24 A. Yes, I did. 53 1 Drug Administration is not mentioned. 2 MR. GOUTMAN: It is just 3 background, Your Honor. 4 MR. MCCLAIN: It's not 5 background; it is an opinion. 6 THE COURT: What page, Mr. 7 Goutman? 8 MR. MC CLAIN: It is on page 9 26, Your Honor. 10 MR. GOUTMAN: As well as page 11 two, Your Honor. 12 MR. GOUTMAN: Can we see The 13 Court at side bar? 14 THE COURT: One minute. 15 Now we can go to side bar. 16 (Side bar discussion). 17 MR. GOUTMAN: Your Honor, he 18 was just going to mention another PCB 19 regulation in the area that he's already 20 been qualified as an expert in. The Food 21 and Drug Administration, food tolerances 22 for PCBs, and he will explain that the 23 furniture in this building was so clean 24 that you could eat off of it under the FDA 9 i / ESQUIRE DEPOSITION SERVICES f TOWOLDMONOQ60632 . 54 . 56 ! 1 food tolerance levels for PCBs. 1 have been disclosed within the report that 1 2 MR. MCCLAIN: It is not in 2 he was going to opine about them. 3 the report. 3 MR. GOUTMAN: Your Honor, they * 4 MR. GOUIMAN: Your Honor - 4 have heard about them because it has been I 5 MR. MCCLAIN: It's not in the 5 in our briefs that we filed with this 6 fair scope of the report. There's no 6 Court. It is not - he does not have to 7 discussion about food tolerances or he is 7 site every single statute or regulation. l. 8 going to offer opinions about food 8 There's no question about that. 9 tolerances or the FDA regulations. This 9 THE COURT: If there is an FDA 10 is the first time that we have heard about 10 regulation which was met, then that was 11 them in the case, it is surprise, and I 11 available to everybody. 12 object to it. 12 MR. GOUTMAN: The FDA 13 MR. GOUTMAN: WeU, it is not 13 regulation is a matter of record. 14 the first time; it has been mentioned in 14 MR. MC CLAIN: It is a matter 15 our briefs frequently, but it is another 15 of disclosure. 16 PCB regulation. He doesn't have to cite 16 THE COURT: Now, the next i 17 chapter and verse all of the PCB 17 question is what did we have in the record 18 regulations in his report. He doesn't 18 that would warrant bringing in the FDA? I 19 cite, for example, the code reference for 19 recognize that the FDA regulations are 20 either the Mega rule or the spill policy 20 open for everybody, but how would it have, 21 and so forth, but this is how this witness 21 how would a person have been aware that he 22 would identify a safe level as saying they 22 was going to testify to the FDA 23 have sampled this furniture and the levels 23 regulations? 24 were compliant even with food tolerances 24 MR. GOUTMAN: Well, he's 55 57 1 and that's how he would come to the 1 saying that -- I think, frankly, 2 determination, reviewing the PCB 2 Plaintiffs were on notice that this 3 regulations, that it was, as he said, 3 witness would talk about PCB regulations. 4 absolutely unnecessary to throw out this 4 The FDA is one of the government entities 5 furniture. They didn't even have to clean 5 that regulate PCBs, but he says very 6 it, let alone throw it out. 6 clearly that choosing to dispose of any 7 MR. MC CLAIN: Your Honor, 7 large group of items was not supported by 8 that opinion is in his report and I'm 8 the data. They threw them out, all of the 9 prepared for it, but he can't make 9 soft surface items. They threw out 10 reference to the FDA without some advance 10 millions and millions of dollars worth of 11 notice, and there is no notice, there is 11 chairs and partitions, and after only 12 notice about the spill policy, there is 12 testing about 30 of them, and the levels 13 notice about NIOSH and there's notice 13 were met or were less than what the FDA 14 about the Mega rule. I'm prepared to talk 14 allows in food. * 15 about those things. 15 MR. MCCLAIN: But the 16 THE COURT: Now, if the levels 16 standard we are applying was the NIOSH 17 that he's going to address are the NIOSH 17 standard and they talked about the EPA 18 levels then that is not a surprise. 18 standard. We are aware of those because 19 MR. MCCLAIN: No, I'm not 19 it is in the report, but no one ever 20 saying it is; it is the FDA, the Food and 20 suggested that we ought to have sampled 21 Drag Administration, that he is going to 21 the furniture to see what was safe in 22 talk about and there's no reference in the 22 food. It is a leap of -- and there's no 23 report to the FDA regulations, nor have we 23 disclosure here. We were sampling, we 24 ever heard about them, and they should 24 have had testimony that the standard we ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60633 58 1 were applying was NIOSH. He says it 2 should have been EPA I'm ready for that 3 but this FDA standard, no one suggested 4 that we should have used a standard for 5 food to test furniture. 6 MR. GOUTMAN: First of all, 7 NIOSH has no standard or guideline, 8 whatever term you want to use, for bulk 9 samples. There's no standard for that. 10 And no one has testified about that. What 11 this witness is saying is looking at what 12 the state did, as he says in his report. 13 they are throwing out millions and 14 millions of dollars of furniture that was 15 so clean that you could even sell it as 16 food in a supermarket. 17 THE COURT: I think that 18 introducing the FDA food samples is beyond 19 the scope of the report and the objection 20 is sustained. 21 MR. GOUTMAN: May I proceed. 22 Your Honor? 23 THE COURT: Yes. 24 BY MR. GOUTMAN: 60 1 people continue to use that furniture? 2 A. About two-and-a-half. 3 Q. What conclusions, then, did you 4 reach concerning the millions of dollars 5 spent by the state on their so called 6 contents strategy? 7 A. My opinion is that it was a 8 waste of money. 9 Q. By the way, PennDOT's contractor 10 who came up with this strategy, did the 11 contractor have any experience in this field? 12 MR. MC CLAIN: Objection, Your 13 Honor. I don't think the witness has 14 identified any knowledge about PennDOT's 15 contractor. 16 MR. GOUTMAN: This foundation 17 has been laid. Your Honor. The Plaintiff 18 made the same objection and it was 19 overruled. 20 MR. MC CLAIN: No, Your Honor, 21 it was not. I think The Court asked 22 counsel to lay a foundation about his 23 knowledge about the subject. 24 THE COURT: May I have f 59 1 Q. Mr. Woodyard, you mentioned that 2 the average levels of PCBs found in the soft 3 surface items was about two parts per 4 million. 5 A. That's correct. 6 Q. Are you aware of any federal law 7 or regulation that says two parts per million 8 PCBs is unsafe? 9 A. No. 10 Q. What did the state do with this 11 furniture? 12 A. They threw it away. They 13 replaced it. 14 Q. By the way, how many pieces of 15 furniture did they actually test before they 16 threw them all away? 17 A. Small number. Like 30. On that 18 order. 19 Q. Do you have any opinions or 20 conclusions concerning that conduct, sir? 21 A. There was no basis for throwing 22 that furniture away based on 30 samples that 23 averaged such a low PCB concentration. 24 Q. For how many years did the 61 1 question read back. 2 (The last question was read 3 back by the Court Reporter). 4 THE COURT: Sustained. 5 BY MR. GOUTMAN: 6 Q. Sir, the contractor whose name 7 apparently escapes you now, did you review 8 any of that contractor's documents? 9 A Yes, I did. 10 Q. Did you review his deposition? 11 A Well, Mr. D'Andrea is the 12 person. I couldn't remember the name of his 13 employer. I reviewed his deposition and he 14 admitted that he had no experience doing any 15 work of this nature. 16 Q. Did you review his trial 17 testimony? 18 A Yes, I did. 19 Q. The person who wrote this 20 multi-million dollar contents strategy had 21 how much experience in that field, sir? 22 A None. 23 MR. GOUTMAN: This might be a 24 good time for our morning break, Your J ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60634 62 , 64 1 Honor. 1 Q. Is there any reason why, if they 2 THE COURT: All right. We 2 wanted to, the government could not have 3 will take a brief recess. 3 cleaned up the T&S Building? n 4 MR. EDGE: The Court will take 4 A. No reason at all. 5 a brief recess until the call of the 5 Q. Did, in fact, they eventually 6 crier. Please, everyone remain seated 6 clean up the building? 7 until the jurors leave the room. 7 A. Yes, they did, just prior to 8 (Court recessed) 8 demolition. 9 MR. EDGE: You may be seated. 9 Q. Did you reach any conclusions 10 This Court is in session. 10 regarding the abatement specifications 11 MR. GOUTMAN: May I proceed, 11 written by the state's environmental 12 Your Honor? 12 contractors? 13 THE COURT: Yes. 13 A, I concluded that they were in 14 BY MR. GOUTMAN: 14 general put together by people with little or 15 Q. Mr. Woodward, let me just go 15 no PCB experience. 16 back to one subject briefly. 16 Q. Why don't we go through that. 17 You were talking about the soft 17 For the abatement, who did the 18 surface items, furniture and so forth, and 18 state hire to do the abatement 19 the sampling indicating an average of two 19 specifications? 20 parts per million bulk sample. Does NIOSH 20 A. They hired Gannett Fleming. 21 have any guideline with regard to bulk 21 Q. And did Gannett Fleming have any 22 sampling? 22 experience designing PCB abatement 23 A. No. 23 specifications? 24' Q. The one microgram per 100 24 A. No, they did not. 63 65 1 centimeters squared that the jury has heard 1 Q. So who did Gannett Fleming hire 2 about, does that have anything to do with 2 to assist them? 3 bulk sampling? 3 A. They hired an outfit called 4 A. No, it is hard surfaces, non 4 Pennoni as consultants to help with the 5 porous surfaces. 5 specification. 6 Q. Now, are you familiar, sir, with 6 Q. Did Pennoni have any experience 7 the abatement and demolition specifications 7 in designing abatement specifications for 8 for this building? 8 PCBs? 9 A. Yes, I am. 9 A. No, they did not. 10 Q. And could you just tell the jury 10 Q. So what did they do? 11 what abatement and demolition specifications 11 A. They hired individual 12 are? 12 consultants to help them out with the 13 A. It is, in general, it is the 13 specification. 14 specification that an engineer would put 14 Q. What was the consultant's name? 15 together to explain to a contractor what they 15 A. The one that comes to mind is 16 are supposed to do, or in the case of a bid 16 Mr. Shortsleve. 17 process, what they are supposed to bid on, 17 Q. Mr. Shortsleve. 18 and in this case it specifically was the 18 Had Mr. Shortsleve ever designed 19 removal of asbestos and PCBs in the building 19 an abatement specification for an office 20 before demolition. 20 building? 21 Q. Is there any reason related to 21 A. No, not to my knowledge. 22 PCBs that necessitated the demolition of the 22 Q. Was there any other contractor ) 23 T&S Building? 23 on site during this time frame involved with 24 A. No, sir. 24 the abatement specifications? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60635 66 1 A. I don't know if it was with the 2 abatement specifications, but CRSS was 3 managing the overall demolition project, so 4 they were involved as well. 5 Q. Did CRSS have any such 6 experience? 7 A. No, they did not. 8 Q. Now, who at the state was 9 overseeing or supervising all of these 10 inexperienced contractors? 11 A. Mr. Rados. 12 Q. Did Mr. Rados have any 13 background in environmental matters? 14 A. No, he did not; he's an 15 electrical engineer. 16 Q. Mr. Rados was an electrical 17 engineer? 18 A. By training that's my 19 understanding, yes. 20 Q. So you had Mr. Rados supervising 21 Gannett Fleming, which had no experience; 22 Pennoni, which had no experience -- 23 MR. MC CLAIN: Your Honor, this 24 is just a -- I object. Your Honor. This 68 1 refer me to a page? I'm not remembering 2 this. 3 MR. GOUTMAN: Page 28. 4 MR. MCCLAIN: I'm not seeing 5 it. 6 MR. GOUTMAN: 29,24. 23,24. 7 MR. MCCLAIN: Okay. 8 MR. GOUTMAN: Can you read 9 back the last question. 10 (The last question was read 11 back by the Court Reporter) 12 BY MR. GOUTMAN: 13 Q. With respect to those abatement 14 specifications that were written by these 15 individuals, did you reach any conclusions as 16 to whether there were any aspects or which 17 aspects of those specifications resulted in 18 the waste of time and money? 19 A. Well, in general, there are two 20 big cost aspects in a specification like 21 that. One is demolition preparation and one 22 is disposing of the waste material. In both 23 areas they showed their lack of experience in 24 developing the specification. For disposal, 1 is just a leading question and an 67 2 argument. 3 MR. GOUTMAN: I'm just 4 summarizing where we were before we go on 5 to something else. 6 MR. MC CLAIN: By the nature 7 of summary it is an argument. 8 THE COURT: Sustained. 9 BY MR. GOUTMAN: 10 Q. Did anyone involved in this 11 multi-million dollar abatement project have 12 experience abating PCBs from office 13 buildings? 14 A. No. 15 Q. What happened as a result of 16 that? 17 A Again, a tremendous waste of 18 time and money. 19 Q. Specifically, sir, with respect 20 to the abatement specifications, did you 21 reach any conclusions as to what, if any, 22 aspects of those specifications wasted time 23 and money? 24 MR. MC CLAIN: Can you just 69 1 for example, I think I mentioned this last 2 week, based on the sampling data showing only 3 one sample in Mr. Kominsky's database at 4 least above 50 parts per million, they 5 decided to remove all of the fireproofing and 6 treat it as a TSCA waste instead of just 7 removing that one little area and taking the 8 rest of it off to an asbestos landfill. 9 Q. What is the significance of 10 that? 11 A. The cost difference is 12 tremendous. The cost of going to an asbestos 13 landfill is relatively inexpensive and cheap 14 and the cost of going to a TSCA landfill, 15 which is heavily regulated and is very 16 expensive. 17 Q. Was it necessary for them to 18 take all of that asbestos and put it in a 19 TSCA landfill? 20 A. No, sir. 21 Q. And, again, why not, sir? 22 A. Because essentially it is 23 unregulated by EPA or it doesn't require that 24 it go to one of these TSCA or expensive ESQUIRE DEPOSITION SERVICES * TOWOLDMONOQ60636 70 72 1 landfills for disposal. 1 of chiseling caulk from the exterior of the 2 Q. And why is that? 2 building cost the state? 3 A. Because it was almost all below 3 A. Almost a million dollars. 4 this 50 part per million level that I have 4 Q. And was that necessary? 5 talked about before. 5 A No. 6 Q. Any other aspects that involved 6 Q. Why not? 7 a waste of time and money? 7 A. Again, because EPA had made it 8 A. Again, going back to disposal, 8 clear that they thought demolishing buildings 9 materials like ductwork, caulk that was 9 with materials like this with caulk in it was 10 removed from the building contained PCBs, but 10 perfectly okay and that the demolition debris 11 EPA would have allowed those materials to go 11 from that building could be taken to a 12 to a non TSCA landfill, which is, as I said, 12 regular demolition landfill, rather than one 13 is a significant savings of money. 13 of these TSCA really expensive TSCA ) 14 Q. Let me start one at a time. 14 landfills. 15 First with the ductboard, 15 Q. And did they take the caulk to a I 16 ductwork, had the state taken out the 16 TSCA landfill? j 17 asbestos and put in the sprinklers, would the 17 A Yes, they did. 18 ductboard be removed as part of that project? 18 Q. And along with all of the 19 A. Yds, it would. 19 concrete that they chiseled out? 20 Q. And why is that? 20 A Yes. 21 A. Because it is common to remove 21 Q. And what is your opinion 22 duct before you do abatement because it is in 22 concerning doing that? 23 the way and it may have fireproofing over 23 A Well, it was unnecessary. It 24 spray on it. There could be a number of 24 was a waste of money. A lot of money. 71 1 reasons. 2 Q. So if you are taking out the 3 asbestos, for whatever the reason, what 4 happens to the ductboard? Is that going to 5 remain in place? 6 A. No, it is going to be removed 7 and thrown away. 8 Q. Now, sir, where did they take 9 the ductwork when they threw it away? 10 A. To a TSCA landfill. 11 Q. And did they have to do that? 12 A. No. 13 Q. Why not? 14 A. Because EPA was already on 15 record as permitting that type of waste 16 disposal in non TSCA landfills, the less 17 expensive option. 18 Q. How about, you mentioned the 19 caulk. What did they end up doing with the 20 caulk? 21 A. They ended up chiseling the 22 caulk off the exterior of the building and 23 throwing it away in a TSCA landfill. 24 Q. And how much did this exercise 73 1 Q. Now, sir, we have heard, the 2 jury has heard, the phrase or the word Mega 3 rule before. Could you tell the jury what 4 the Mega rule is? 5 A Well, the PCB regulations have 6 been in place for, I guess, 22 years now. It 7 has been a long time. And during that time 8 EPA has evaluated those rules, evaluated 9 their policies and procedures about PCB 10 disposal and about cleanup, and in 1991 they 11 proposed some pretty significant changes to 12 those rules. 13 Q. Who proposed these changes? 14 A. EPA 15 Q. The EPA itself. 16 A Yes. 17 Q. Okay.And what happened between 18 1991 and the time it was formally adopted? 19 By the way, when was it formally 20 adopted? 21 A. It was formally adopted in June 22 of 1998. 23 Q. And between 1991 and June of 24 1998 what was the EPA's policy concerning the ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60637 74 1 Mega rule? 2 A. The EPA was willing to consider 3 the provisions that they were proposing in 4 these rules for specific projects? 5 Q. And during that time did you 6 have any actual experience dealing with the 7 EPA and the Mega rule? 8 A. Yes, I did. 9 Q. And based upon that experience 10 what did you conclude? 11 A. Relative to this project, that 12 the state should have gone to EPA and 13 proposed to use the provisions of those new 14 rules as part of this project. 15 Q. Had they done that what would 16 have resulted? 17 MR. MCCLAIN: Objection, Your 18 Honor. Calls for speculation. 19 MR. GOUTMAN: It is an opinion 20 of an expert. 21 MR. MC CLAIN: Your Honor, 22 opinion is fine, but clairvoyance is not. 23 MR. GOUTMAN: Your Honor24 THE COURT: Overruled. 76 1 argument with good technical information. 2 Q. Did the inexperienced 3 contractors and the inexperienced supervisor 4 at the state do that? 5 A No, they did not. 6 Q. And what was the result? 7 A The result was that they 8 proposed to do exactly what was in the 9 regulations without proposing any 10 alternatives to that to save money to do 11 things that were not significant risks to 12 human health or the environment. They pretty 13 much ended up doing exactly what was in the 14 rules. Actually, to some extent they went 15 beyond the regulations. 16 Q. And what was the result of that? 17 A Again, in my opinion, a 18 tremendous waste of money doing things that 19 weren't really necessary. 20 Q. Sir, did you review the 21 abatement contract and the costs of the 22 abatement? 23 A. Yes, I did. 24 Q. Did you analyze that for actual ? i )( \ i i 1 BY MR. GOUTMAN: 75 2 Q. Had a proposal been made -- by 3 the way, do you just -- how is this done? Do 4 you just walk up and say, Hey, EPA. I want 5 to follow that Mega rule? Is that how it is 6 done? 7 A No, of course not. 8 Q. How is it done? 9 A The rules, since they were put 10 into force 22 years ago, have always had 11 provisions allowing for you to make an 12 argument, if you will, on the basis of risk. 13 We have heard a lot about that in this case. 14 Put together some data from the lab, put 15 together other scientific backup, and then 16 provide it to EPA and ask for permission to 17 do something that is different than what is 18 in the regulations. It is common to do this. 19 There's been dozens and dozens of people 20 receiving permits for different types of uses 21 and disposal options. It is a scientific 22 process. It is more than simply going in 23 with your hat in your hand and saying please 24 give me permission. You need to support that 77 1 pre demolition costs incurred by the state? 2 A. Yes, sir. 3 Q. Who did the abatement? What 4 company? 5 A. An outfit called PDG. 6 Q. And what was PDG paid to abate 7 the entire building? 8 A. About $12 million. 9 Q. And what is it that they abated 10 the building of? 11 A. Primarily asbestos and some PCB. 12 Q. Of that $12 million actually 13 spent by the state to clean up the building 14 before they blew it up, how much is actually 15 related to PCBs? 16 A. Probably about two million of 17 their expenses. 18 Q. Let's break that down. How 19 about the caulk? What did PDG do with the 20 caulk pursuant to the state's specifications? 21 A. They chiseled it out of the 22 outside of the building and disposed of it. 23 Q. And was that necessary? 24 A. No. ,i I f } ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60638 n 78 , 80 j 1 Q. How much did that end up costing 2 the state? 1 allowed the downgrade. 2 BY MR. GOUTMAN: 3 A Almost a million dollars. 3 Q. Now, this deals with 4 Q. How about for PCB 4 pre-demolition costs. Based upon your 5 decontamination costs? 5 background, sir, were you able to determine 6 A I reviewed the payment schedule 6 how much it would have cost to take out the 7 for the contractor, how they broke out their 7 asbestos had they decided to not blow up the 8 cost estimate so that they could get paid if 8 building, but rather take out the asbestos, 9 the project proceeded, and the PCB 9 put in sprinklers, and reoccupy the building? 10 decontamination portion of that was about 10 A. Yes, I estimated that asbestos i 11 $868,000. 11 abatement cost to be about, I believe, 13.3 12 Q. And how much was related to the 12 million. 13 asbestos? 13 Q. And what does that include and , ) 14 A. The balance. 14 not include? 15 Q. About what? 15 A. It includes abatement or removal 16 A As I said, about $10 million. 16 of fireproofing, pipe insulation, tile. It 17 There were some additional costs that aren't 17 is a straight forward asbestos abatement 18 listed there related to changes in work 18 project. 19 protection that were different. In fact, the 19 Q. Does it include replacement of 20 level of protection that had been used for 21 the two-and-a-half years was downgraded. 22 That's the term we use. Instead of having 23 air lines feeding the respirators for 24 breathing air, it was determined that they 20 those items? 21 A. No, not in this case. 22 Q. Now, you mentioned tile. What 23 are you talking about? 24 A. Vinyl asbestos tile that was in 79 81 1 didn't really need those to do this work, so 1 portions of the building was also removed 2 they would put on regular respirators like we 2 before demolition. 3 normally use for doing this type of work, so 3 Q. It was floor tile? 4 that cost another $100,000, so in round 4 A Yes. 5 numbers the asbestos portion was about $10 5 Q. Now, based upon there being 6 million of the 12. 6 levels of PCBs in the asbestos, according to 7 Q. Do I call the PCB PPE -- what do 7 Mr. Kominsky, an average of about 17 parts 8 you call that? 8 per million, what additional cost would there 9 A. Personal Protective Equipment. 9 have been to the state to take out the 10 Q. And that was about 100,000? 10 asbestos because of the PCBs in the asbestos? 11 A. Approximately, yes. 11 A Perhaps $100,000,1 believe I 12 Q. And was that necessary, in your 12 estimated for slight changes in the way they 13 opinion? 13 protect the workers, but there would have 14 A. No. No, it wasn't. 14 been no effect, no significant effect i 15 Q. Did the state, itself, make any 15 certainly, on the way that the waste was 16 determination as to whether that was 16 disposed of when it was ultimately taken to a r ^ 17 necessary? 17 landfill, as we discussed before. ( j 18 MR. MC CLAIN: Objection, Your 18 MR. GOUTMAN: This is Exhibit 19 Honor. It is leading. 19 3120 A Your Honor. 20 MR. GOUTMAN: I'm asking 20 THE COURT: Could I see that? 21 whether the state made a determination. 21 Thank you. 22 THE COURT: Overruled. 22 BY MR. GOUTMAN: 23 THE WITNESS: No, they 23 Q. Sir, you have testified in some 24 determined that it was unnecessary and 24 detail about the government's mistakes. What ESQUIRE DE POSITION SERVICES TOWOLDMONOQ60639 82 1 resulted from these mistakes? 2 A. Doing all of the things that 3 they did ended up resulting in millions 4 wasted on contractors, millions wasted on 5 sampling, monitoring, millions wasted upon 6 this contents strategy. We talked about 7 office equipment being thrown away for no 8 reason, the building being, building 9 occupants being relocated, the building being 10 blown up. These were all unnecessary. They 11 are all unnecessary. 12 Q. Sir, the contents strategy, 13 going back to that for one second, what, if 14 any, aspect of your post fire schedule would 15 have involved the contents strategy? 16 A. There would have been no 17 contents strategy. I have never heard of a 18 contents strategy as it relates to cleanups 19 like this. 20 Q. Sir, you have expressed a number 21 of conclusions in this case. Have you 22 reached those to a reasonable degree of 23 engineering certainty? 24 A. Yes, I have. 84 1 then Mr. Neal and then, if there were any 2 additional questions, Ms. Meyers or 3 Ms. Herschel. 4 Now, Mr. McClain, are you 5 suggesting that you defer your Cross 6 examination at this point? 7 MR.MCCLAIN: Oh,no,Your 8 Honor. I had remembered it differently. 9 I remembered that Mr. Neal followed Mr. 10 Goutman and that's the way we did it with 11 Mr. DeChiara and we did it with all of the 12 experts that he has called thus far, so I 13 thought we would follow that same order. 14 If The Court prefers it to be another way, 15 then I'm happy to do it that way, but I 16 had remembered that that's the way we had 17 been doing it. We can check that if you 18 want to. 19 THE COURT: I can appreciate 20 that. As far as The Court is concerned, 21 it's not absolutely certain and I would 22 have to go back into the record. 23 MR. MC CLAIN: If you want me 24 to go we need to take a break to get 83 1 MR. GOUTMAN: May I confer 2 with counsel for a second? 3 THE COURT: Yes. 4 MR. GOUTMAN: No further 5 questions, Your Honor. 6 MR. MCCLAIN: It is to 7 Mr. Neal. 8 MR. NEAL: I don't believe so, 9 Your Honor. I think it is Mr. McClain 10 that is next. 11 THE COURT: I think we have 12 had Mr. McClain -- 13 MR. MCCLAIN: Mr. Neal has 14 always followed -- 15 THE COURT: Ms. Meyers? 16 MS. MEYERS: Your Honor, I 17 have a few questions for Mr. Woodward. 18 Ill go in whatever order The Court 19 prefers. I just wanted to let The Court 20 know that I have some questions. 21 MR. MC CLAIN: On what basis 22 is that? 23 THE COURT: What we have done 24 in the past, Mr. McClain had followed and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 85 organized here. I have get some charts, et cetera. THE COURT: Do you want to take the lunch break now? MR. MCCLAIN: Yes, we can do that and come back. THE COURT: All right. MR. EDGE: This Court will take a lunch recess until 1:30 p.m. Everyone remain seated until the jury leaves the room. Okay, lurors. (Court recessed for lunch.) MR. EDGE: This Commonwealth Court is now reconvened. Good afternoon, Your Honor. THE COURT: Good afternoon. I understand there are some exhibits in question and we are to review them now before we bring in the jury. Is that correct? MR. GOUTMAN: Yes, Your Honor. J ESQUIRE DEPOSITION SERVICES TOWOLDMON0060640 86 , 88 1 MR. MCCLAIN: I have shown 1 where we've had trouble seeing 2 Mr. Goutman some of the blow-ups I 2 them in the past. 3 intend to use which are in the 3 So that's the nature of the 4 nature of the same type of things 4 exhibits. I don't know what 5 I've used on other witnesses. I 5 specific ones they have objections 6 asked Mr. Woodyard to leave 6 to, but we can take them up. 7 earlier, but he's still here. I 7 MR. GOUTMAN: I think the 8 would like Mr. Woodyard to absent 8 first overall subject relates to, 9 himself while we make the 9 and you don't have these, Mr. 10 argument. 10 McClain doesn't have small copies, 11 MR. GOUTMAN: In fairness to 11 but they are for the record 4007 12 Mr. Woodyard, I don't think Mr. 12 B, C, D and E. 13 Woodyard should be taking orders 13 THE COURT: They're the 14 from Mr. McClain. If he wanted 14 numbers and we don't have copies 15 him to leave, he should have asked 15 of them. 16 me. In any event, it's 16 MR. GOUTMAN: Right. The 17 appropriate for him now to leave 17 only ones that I'm aware of are 18 the courtroom. 18 the blow-ups, Your Honor. But 19 MR. MCCLAIN: I did ask your 19 they relate to this issue that the 20 partner, Ms. O'Neill, and she said 20 court visited late last week 21 she would not. I did speak to 21 concerning the sending by Mr. 22 her. 22 Ziegler of pre-fire samples to me 23 MS. O'NEILL: I said Mr. 23 and then my sending them to a 24 Woodyard will leave the courtroom 24 laboratory for analysis, Mr. 87 89 1 when the judge is sitting on the 1 Woodyard's laboratory for 2 bench and he's now doing so. 2 analysis. 3 MR. MCCLAIN: I thought it 3 Apparently with these 4 was inappropriate for him to be in 4 exhibits Mr. McClain intends to 5 the courtroom while we looked at 5 examine this witness as to whether 6 the exhibits, but be that as it 6 in fact the asbestos samples that 7 may -- 7 were analyzed were in fact 8 THE COURT: I believe as we 8 pre-fire. I most strenuously 9 talk, Mr. Woodyard has left the 9 object to that line of 10 courtroom. Is that correct? 10 questioning. I believe he is J 11 MR. GOUTMAN: Yes, sir. 11 estopped, because his office had 12 MR. MCCLAIN: Most of the 12 represented to me that those 13 blow-ups, Your Honor, are quotes 13 samples were pre-fire, from now 14 from articles or books that the 14 pursuing that at this time and I 15 witness has written on PCBs. He 15 would respectfully move for a 16 was qualified by counsel as a PCB 16 mistrial if counsel does get into 17 cleanup expert and most of these 17 that. 18 relate to that subject matter 18 I have represented to the 19 which he has testified to 19 court that I took whatever was 20 extensively. So I've taken the 20 sent to me by Mr. Ziegler, and the 21 specific quotes from his articles 21 court will remember the cover 22 or books and put them on black 22 letter identifying those pre-fire 23 cards so they would be easier to 23 samples, and sent them to a 24 read as opposed to the TV screen 24 laboratory. To get involved with ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60641 90 92 1 this witness on that subject most 1 on them. They have no 2 respectfully I think would be 2 identification. We dont know 3 completely wrong. 3 where they came from. Did they 4 At this point, what am I 4 all come from one spot or did they 5 supposed to do, go on the witness 5 all come from different areas? No 6 stand and testify? I believe it 6 one knows. And yet this witness 7 would be highly prejudicial. 7 is opining about them being 8 Plaintiffs represented to me they 8 samples widespread through the 9 were pre-fire samples. They 9 building. No one represented that 10 cannot now say or question this 10 to him. He said it. He made it 11 witness or imply to the jury that 11 up. The laboratory didn't tell 12 in fact they were not. 12 him that. Likewise, are these 13 MR. MCCLAIN: Your Honor, we 13 labels, I know it's difficult to 14 went over all of this before. Mr. 14 see with your prescription -- 15 Woodyard sat on the witness stand, 15 THE COURT: It would be 16 we objected to him testifying 16 difficult to see even -- 17 about them at all because there 17 MR. MCCLAIN: But you have 18 was no foundation for them. The 18 this exhibit on the bench. Ido 19 court said, and Mr. Goutman 19 have smaller copies of the actual 20 agreed, these were matters that 20 exhibit that 111 hand to the 21 could be handled on 21 court. It's the chain of custody 22 cross-examination, Your Honor. 22 that Mr. Goutman gave us. He gave 23 Mr. Mr. Woodyard could be asked 23 it to me in court and said this is 24 about them. He readily admitted 24 the basis upon which you could 91 93 1 that his narrative in regard to 1 admit these samples and these 2 the fact that Mr. Ewing took 2 results into evidence. I have a 3 samples both before and after the 3 right to cross-examine this 4 fire were in error. All of those 4 witness about the basis and what 5 facts need to be brought out. 5 the laboratory told him in this 6 This document I never had before. 6 chain of custody for him to make 7 This one is the blown up document 7 these broad sweeping conclusions 8 of the chain of custody that Mr. 8 that he's made. That the purpose 9 Goutman presented to us in court 9 of them. I'm using the document 10 that morning that has the notes of 10 that Mr. Goutman gave me and the 11 the laboratory that says labels 11 information contained on the 12 001 through 014. Date added of 12 document to demonstrate that what 13 6-6-92. No date given on labels. 13 is found in his report is not 14 That's what the laboratory noted. 14 accurate by the very document that 15 So the date that is recorded 15 they presented us. So that's 16 there, the date in Mr. Woodyard's 16 point number one. 17 report, the laboratory said they 17 MR. GOUTMAN: Your Honor, I 18 made up because there was no date 18 would just like to correct the 19 on the package they received. 19 record. At no time did I 20 That's relevant to the jury to 20 represent to the court, and 21 understand. It's also relevant 21 counsel has the transcript and 22 for the jury to understand to see 22 will correct me if I'm wrong, at 23 the labels that they're talking 23 no time did I represent to the 24 about. These labels have no dates 24 court that this was something that ESQUIRE DEPOSITION SERVICES f i ? 1 .1 TOWOLDMONOQ60642 94 , 96 1 should be bandied about in front 1 We're going over exactly the same 2 of the jury. I represented to the 2 ground we went over last week. * 3 court during argument that I 4 believe any reference to this in 3 MR. MCCLAIN: Your Honor, 4 that statement is just untrue. I 5 front of the jury would be a basis 5 want to read to you the statement 6 for a mistrial. Just to correct 6 that Mr. Goutman made to you about 7 the record. And the reason for 7 whether I could cross-examine this 8 that, Your Honor, is that I was 8 witness on it if you would permit 9 sent certain asbestos samples by 9 him to testify. Page 58,59 and 10 plaintiffs almost a year ago, and 10 60. That's the first reference. 11 Mr. Ziegler of his office in his 11 MR. GOUTMAN: Excuse me, 12 cover letter said these are 12 page 58,59,60 of what date? 13 pre-fire samples. Now, almost a 13 MR. MCCLAIN: January 27. 14 year later -- and my expert wrote 14 Thursday. First of all, Your 15 a report on reliance upon that 15 Honor, we never conceded that 16 representation. Almost a year 16 these are the samples that we 17 later, that expert is going to be 17 sent. We sent the Gannett Fleming 18 cross-examined to the effect that 18 samples. That's what the cover 19 that representation made by 19 letter said. 20 plaintiffs' counsel is in error 20 THE COURT: Excuse me. 21 and that in fact half of the 21 What the court is concerned about 22 samples were not pre-fire. 22 is the letter of January 18,1999 23 Plaintiffs are estopped from doing 23 from Humphrey, Farrington & 24 that now. If plaintiffs get 24 McClain signed by James M. Ziegler 95 97 1 involved in that, what are we 1 dated January 18,1999 to Thomas 2 going to do, put Mr. Ziegler on 2 M. Goutman, Esquire, White and 3 the witness stand? Put myself on 3 Williams, re this case. Dear Tom, 4 the witness stand? Recuse his 4 I enclose the asbestos samples we 5 firm, recuse my firm since I 5 discussed earlier. They have been 6 wouldn't be able to testify and 6 split from samples taken by 7 represent a client at the same 7 Gannett Fleming from the T&S 8 time? This, I think, is a very 8 Building before the fire occurring 9 serious matter, Your Honor. We 9 in June 1994. 10 have defended this case based upon 10 Is the plaintiff repudiating ] 11 representations by the plaintiffs 11 this letter? 12 that what we got were pre-fire 12 MR. MCCLAIN: WeVe made an 13 samples and to allow plaintiff now 13 extensive record on it. Not at J 14 to get up and suggest to this jury 15 that they were not pre-fire 14 all. We sent the Gannett Fleming 15 samples to them. The Gannett 16 samples is -- there's a colloquial 16 Fleming samples are identified. 17 term for it and it's called 17 They're in the chain of custody. 18 sandbagging. A more precise legal 18 They are those numbered samples 19 term for it is highly prejudicial. 19 that are in the second part of Mr. 20 Highly prejudicial and completely 20 Woodyard's table. Those first 21 inappropriate. 21 samples I have no idea about nor 22 MS. HERSCHEL: Your Honor 22 does anyone else, and the 23 has clearly ruled on this and 23 laboratory doesn't. Yet Mr. 24 ruled this is not permissible. 24 Woodyard has gotten on the stand ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60643 98 100 1 and represented them to be 1 sainpling. 2 something they are not No one 2 MR. MCCLAIN: Your Honor, to 3 knows what they are. They are not 3 answer your question, the letter I 4 from all over the building. No 4 believe is accurate, but what it 5 one knows where they were taken 5 does not say is that we're sending 6 from or when they were taken. A 6 these unlabeled samples to you. 7 date was placed on them by the 7 Mr. Goutman. That's the question 8 laboratory, not by plaintiffs' 8 that I have. And we don't know 9 counsel. 9 the answer to that, where those 10 So the Gannett Fleming 10 samples came from. Mr. Ziegler's 11 samples that we represented we 11 letter refers to the Gannett 12 sent to them are contained in 12 Fleming samples. Those are an 13 this, in the chain of custody, 13 identifiable group of samples. 14 Your Honor. 14 They are numbered correctly in Mr. 15 MR. GOUTMAN: Your Honor. 15 Woodyard's report and in the 16 THE COURT: Wait a minute, 16 analysis. 17 please. 17 So we know what the Gannett 18 MR. GOUTMAN: I'm sorry, 18 Fleming samples are and that they 19 Your Honor. 19 are numbered properly and they are 20 MR. MCCLAIN: Could I bring 20 identifiable. These are, I 21 this to you? 21 believe, what Mr. Ziegler sent to 22 THE COURT: Yes. 22 Mr. Goutman. What these other 23 MR. MCCLAIN: Those are the 23 samples are, I don't know. Let's 24 Gannett Fleming samples. 24 assume. Judge, for a minute that 1 99 101 1 THE COURT: All of this may 1 Mr. Ziegler sent those. The 2 be true. I am merely directing 2 questions are still relevant for 3 the court's attention to the two 3 this reason. 4 line paragraph -- one paragraph 4 THE COURT: Mr. McClain. 5 letter of Mr. Ziegler that says 5 MR. MCCLAIN: Yes, Your 6 that these were before the fire 6 Honor. 7 occurring June 1994. 7 THE COURT: You say they 8 Now, the first thing we have 8 would be relevant, but the letter 'I 9 to decide, if we're going to move 9 doesn't address any other samples 10 off of this point, is whether 10 except pre-fire samples. That's 11 you're repudiating this letter or 11 why the court may be hung up on 12 agreeing with the letter. If you 12 that issue. 13 agree with the letter, then they 13 MR. MCCLAIN: I understand 14 were pre-fire samples which is 14 your question. Here's the issue. 15 what I believe may be the evidence 15 Let's assume that that is true, I 16 or the thrust of the defendant's 16 don't believe that it is, Your 17 position in this matter. 17 Honor, but I can't prove it one u i -} 18 If they're not pre-fire 19 samples, then this letter is in 18 way or the other. 19 THE COURT: Then you don't d 20 peril. And the other question 20 know if your office is accurate. 21 would be, was there a second 21 MR. MCCLAIN: I believe that 22 delivery of samples from your 22 my office only sent these. That's 23 office to Goutman which could take 23 what I believe. I can prove to 24 in the question of post-fire 24 you by the letters, I believe that ESQUIRE DEPOSITION SERVICES t TOWOLDMONOQ60644 I 102 104 1 if I put this before the jury, 1 on various occasions. We went 2 they would find in favor of me as 2 over Mr. Ewing's testimony that he 3 a statement of fact. Can I 3 produced all 14 of his samples. 4 demonstrate exactly what samples 4 Where are they? Where is the 5 were sent? The letter doesn't 5 analysis? I don't know, are those 6 list for Mr. Goutman what samples 6 confused? Did Mr. Goutman forward 7 were sent, but it does identify 7 those? Were they sent directly by 8 them as an the Gannett Fleming 8 the laboratories between them? # 9 samples, which are an identifiable 9 Were those obtained from Mr. Roux 10 group, and they are not these 10 as part of the exchange of 11 samples that are listed 1 through 11 information between Mr. Roux and 12 14. Those are not Gannett Fleming 12 Mr. Goutman? I have no idea about 13 samples as far as I know. There 13 these issues. All I'm trying to 14 is nothing to identify them as 14 show is that as to these 14 15 such. I don't know what they are. 15 samples, they are a mystery. No 16 Where he got them, how they got 16 one knows where they were taken 17 there, what they represent, I'm 17 even if you assume they were taken 18 not sure. But even assuming that 18 before the fire. Do you 19 Mr. Goutman is being accurate and 19 understand my meaning. Judge? 20 he believes they are pre-fire 20 THE COURT: I'm bound by 21 samples, if that is true, then 21 your letter. 22 where were they taken? No one 22 MR. MCCLAIN: Judge, even 23 represented anything about that. 23 assuming that that letter 24 And Mr. Woodyard would not know 24 referring to those samples -- 103 105 1 that. The laboratory doesn't know 1 THE COURT: If they don't, 2 that because they have labels that 2 then I would want testimony as to 3 say nothing except numbers, Your 3 what Mr. Ziegler and Mr. Goutman 4 Honor. Were they all taken from 4 talked about. 5 one location? These are questions 5 MR. MCCLAIN: I'd be happy 6 I would like to ask Mr. Woodyard, 6 to put Mr. Ziegler on the stand to 7 you see. Were they all taken from 7 talk about that. He believes that 8 one location? Let's assume they 8 what he sent him were these 9 were pre-fire, Mr. Woodyard. 9 Gannett Fleming samples. That is 10 THE COURT: Again, somewhere 10 what he told me was his belief 11 I may be missing something. If 11 about what was sent. 12 these are the samples that are 12 Now, but Your Honor, if you 13 sent by Mr. Ziegler to a third 13 could just look at the document in 14 party, in this case Mr. Goutman, 14 question, the one that we're going 15 either the samples themselves 15 to cross-examine the witness about 16 would be identifiable or Mr. 16 hopefully, from the laboratory, 17 Ziegler would know what samples he 17 they don't identify what the ,j 18 sent which could be identified. 18 location was. Nor does the letter 19 and he did identify them as all 19 say anything about location of 20 pre-the fire samples. Now, unless 20 these samples. It doesn't say on 21 Goutman got two sets of samples. 21 what date they were taken and yet 22 MR. MCCLAIN: And Your 22 they were all dated 6-6 of 1992. ] 23 Honor, we had a number of samples 23 The laboratory put that date on 24 we introduced in this litigation 24 there. The plaintiffs didn't. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60645 ) 106 108 1 And so there is a great 1 sample are. Your Honor. Then he 2 uncertainty about these samples. 2 goes on again and says later in 3 Then if you looked at the 3 die discussion that this is 4 numbers and you raised the 4 fertile subject of 5 question could these just be 5 cross-examination. 6 splits of the previous samples? 6 And that's where we left it 7 Maybe. I don't know. Does the 7 when we allowed Mr. Woodyard, who 8 witness know? Well ask him if 8 didn't know where the samples had 9 that was his assumption because 9 come from and couldn't testify 10 they bear the same last three 10 about any of these matters, 11 digits. But if you look at the 11 testify and reach these broad 12 results of those, the samples 12 conclusions without an outside, 13 diverge wildly in terms of the 13 scientific basis for the most of 14 results. It's only because he 14 what he said. But this is the 15 lumps them all together and 15 subject of cross-examination. I 16 averages them that he reaches 16 will bring that out on 17 these conclusions that the 17 cross-examination. Do you know 18 pre-fire and post-fire sampling 18 where the samples came from? No. 19 demonstrate that there was no 19 Do you know how many of them came 20 pre-fire contamination. All I'm 20 from the sixth floor? No. I 21 trying to show is the great 21 think he will agree with all those 22 uncertainty in the date that he's 22 matters. 23 relied upon. Even if you assume 23 So I have a right, Your 24 those are pre-fire samples. 24 Honor, I believe, based upon the 107 109 1 Assuming that they are, which is 1 very documents they gave to show 2 all the letter at its broadest can 2 the great uncertainty about the 3 represent. There is still great 3 information there and it's not the 4 uncertainty about what location 4 basis - and it's not really the 5 they came from and what they 5 issue as to whether or not all of 6 represent. What dates they were 6 these were sent by Mr. Ziegler. 7 taken on. No one seems to know 7 I'm sidestepping that issue 8 nor did he care when he wrote his 8 completely. It's the issue that 9 report. In fact, what he did was 9 he doesn't know where they were 10 represented they were Mr. Ewing's 10 taken. 11 samples. Remember what Mr. 11 THE COURT: I don't know how 12 Goutman said about that, at page 12 we could sidestep the question of 13 58,59 and 60 of the report he 13 Mr. Ziegler because that 14 said, "We got these samples from 14 inteijects another problem. 15 plaintiffs' counsel." At the 15 Because for Mr. Ziegler to send 16 bottom of 59, "And all Ewing's 16 them to Mr. Goutman, Mr. Ziegler 17 reference is, is my mistake in 17 would have had to have those 18 believing that Mr. Ewing, who was 18 samples in Mr. Ziegler's 19 working at the time in tandem with 19 possession. For Mr. Ziegler to 20 Law Environmental, was in fact an 20 send them to Mr. Goutman, the 21 employee of Law Environmental." 21 chain of custody for one-half, 22 But this is a subject of 22 because these were allegedly split 23 cross-examination, he told the 23 samples, half would have remained 24 court. We all know what the 24 with Mr. Ziegler of the splits and j f ) i] t % d ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60646 i 110 , H2 1 half would have been sent to Mr. 1 to? 2 Goutman. 2 MR. GOUTMAN: Because the 3 Now, if there is no 3 documents that were produced show 4 identification of those samples or 4 that within one week of my 5 where they came from except the 5 receiving asbestos samples from 6 letter that these are the samples 6 Mr. Ziegler represented to be 7 about which we spoke, and they are 7 pre-fire, those samples arrived at 8 pre-fire samples, how can we get 8 the laboratory and were logged in 9 other testimony to contradict this 9 as such. That letter is dated the 10 and how can we then ensure that 10 19th of January. They were logged 11 the chain of custody to Ziegler 11 in the 26th, I believe. 12 was not broken? 12 I also want to correct the I 13 MR. MCCLAIN: They're 13 record, Your Honor, and I think ) 14 relying on the chain of custody. 14 counsel does owe this court an 15 You saw the chain of custody, of 15 obligation for candor, that I 16 which way it went. And Mr. 16 never said to this court that this 17 Goutman raised the issue and it 17 is something that should be left 18 may be in fact the case that those 18 for cross-examination. Asa 19 are split samples because they 19 matter of fact, I said at page 86, 20 bear the same numbers. 20 "Your Honor," starting at 85, "but 21 THE COURT: And I would have 21 to take that position now, Your 22 to take it that Mr. Ziegler's 22 Honor, in front of the jury, let 23 letter is an assignment and 23 alone this court, that they are 24 admission of his chain of custody 24 not pre-fire samples when I in 1 of those samples which were 1 2 pre-fire samples. 2 3 MR. MCCLAIN: But Your 3 4 Honor, where is Mr. Goutman's 4 5 chain of custody to the 5 6 laboratory? We haven't seen the 6 7 transmittal letter. We don't know 7 8 what he sent. We have no idea 8 9 about these things. You were 9 10 given this chain of custody that 10 11 Mr. Goutman had from Severn Labs, 11 12 this thing here, and said this is 12 13 what the laboratories has. But he 13 14 claims not to have one. He claims 14 15 not to have a chain of custody 15 16 from his possession to the 16 17 laboratory, yet you allowed 17 18 testimony on it. 18 19 THE COURT: Mr. Goutman, how 19 20 do we establish chain of custody 20 21 once we get the chain of custody 21 22 of these samples to Mr. Goutman, 22 23 how do we get the chain of custody 23 24 to the laboratory they were sent 24 113 received them from plaintiffs' counsel back a year ago and they were at that time represented as pre-fire samples, plaintiffs are estopped from making that. If in fact they pursue that on cross-examination, I believe a mistrial is appropriate. So, Your Honor, just in the interest of completeness, that was what I represented to this court last Thursday. But in terms of chain of custody, we have a note that I received it and we have a note that within one week it was received by the laboratory. I would also like to correct the record, plaintiffs' counsel asserts to this court that plaintiffs' counsel gave us other asbestos samples. Plaintiffs counsel never gave us any other asbestos samples. We never received any other T&S Building ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60647 114 116 1 samples from Mr. Roux, and Mr. 1 in court that day and said it was 2 Roux's partner could probably 2 a document from the laboratory and 3 verify that. We never received 3 I have no reason to doubt that he 4 any asbestos samples from Mr. 4 is being truthful about that. 5 Ewing or any other entity. 5 Howeverj I would tell the 6 MR. MCCLAIN: Your Honor, 6 court and remind the court that 7 could I confer with Mr. Henderson 7 Mr. Goutman's name does not appear 8 just for a moment? 8 anywhere on this document. And 9 THE COURT: Yes. 9 the client is RFW-Certainteed as 10 - - - 10 we see on the top of the document, 11 (Whereupon, a discussion was 11 and on the back of the document it 12 held off the record.) 12 says that the client contact/phone 13 - - - 13 is John Woodyard. So it could 14 MR. MCCLAIN: Your Honor, on 14 well be that Mr. Goutman sent 15 this point that Mr. Goutman made 15 these. I'd like to see a letter 16 just a moment ago, I would like to 16 saying that. As the court has 17 hand the court the full chain of 17 reminded us time and time again, 18 custody from the laboratory that 18 the palest ink is better than the 19 we blew those pages up if I could. 19 clearest recollection. 20 MR. EDGE: You may. 20 THE COURT: The strongest 21 THE COURT: Do you have them 21 memory, to be accurate. 22 marked for identification? 22 MR. MCCLAIN: I was trying 23 MR. MCCLAIN: I have not 23 to remember that last night how 24 marked them, but we can. Well 24 that went. But the point is still ff 115 117 1 get an exhibit number for the 1 made. We demonstrated with a 2 court. 2 written chain of custody where 3 These are the documents that 3 these samples went, and then we 4 previously were handed to the 4 have a letter to Mr. Goutman which 5 court at the hearing that we 5 gets the samples to Mr. Goutman. 6 identified in the transcript on 6 Where is the correspondence that 7 Thursday, January 27. These, Mr. 7 gets the samples from Mr. Goutman 8 Goutman represented to be 8 to the laboratory? The court 9 documents from the laboratory, 9 allowed that testimony without 10 Severn Trent Laboratories in 11 Chicago. And he says, "This 12 document establishes the chain of 10 that chain of custody, but we have 11 never seen it and apparently Mr. 12 Goutman says it does not exist. t1 i 13 custody of these samples." 13 So where are we then? Well, I 14 MR. EDGE: We don't know 15 what number it is yet. 14 would think we don't have any 15 chain of custody for these samples .J 16 MR. MCCLAIN: 4,007, Your 16 or the analysis that Mr. Woodyard 17 Honor. 17 has provided. Without a chain of 18 THE COURT: Do you have it 18 custody, we can't be certain that 19 marked as PEN or DGS? 19 these are the samples that Mr. 20 MR. MCCLAIN: PEN 4007. 20 Goutman was sent by Mr. Ziegler. 21 This is the document that Mr. 21 And that's the fundamental break 22 Goutman gave us in court that day. 22 in the chain of evidence that we 23 The documents establish a chain of 23 have. 24 custody that Mr. Goutman gave us 24 It was only because the ESQUIRE DEPOSITION SERVICES f TOWOLDMONOQ60648 118 120 1 court allowed this testimony 1 question Mr. Goutman's honesty. I 2 without a chain of custody to come 2 received a letter, and the court 3 in that I brought this to the 4 attention that the laboratory 3 will recall, I sent a request for 4 production I believe it was in 5 doesn't even represent where these 5 August of the preceding year for. 6 samples came from. You cant make 6 among other things, pre-fire 7 the assumption they were taken 7 samples. That was followed up by 8 from different floors even and 8 correspondence I believe in 9 that they supplied the date that 9 October and November or November 10 is found in the report because 10 and December. That was followed 11 there was no labels on the 11 up by conversations that I had 12 samples. That's what they said 12 with Mr. Ziegler and perhaps 13 about them. Those are the points 13 others of his office. When am I 14 that I want to bring out with Mr. 14 going to get the pre-fire samples? 15 Woodyard. But if it's the court's 15 And lo and behold I got the 16 preference to strike this 16 pre-fire samples sometime shortly 17 testimony because there is no 17 after January 19,1999. 18 chain of custody, I will withdraw 18 I took the samples, gave 19 these questions because I do 19 them to my secretary and said, 20 believe that they would be proper 20 send those to Mr. Woodyard's 21 if the court is going to allow 21 laboratory. And she did. 22 this testimony. I think the court 22 Now, there is no cover 23 has gone a long way by allowing 23 letter. We did not generate a 24 Mr. Goutman great leeway in 24 cover letter. It was simply sent. 119 121 1 getting in samples without an 1 They noted receiving it 2 adequate chain of custody, and I 2 coincidentally within a week of my 3 should at least be able to point 3 receiving it. 4 out from his own documents the 4 We have defended this case 5 problems inherent in the witness' 5 Your Honor for over a year now or 6 report and the conclusions that he 6 almost a year now based on the 7 draws without adequate 7 assumption that what was in that 8 information. That's the essence 8 box from Mr. Ziegler were pre-fire 9 of what I wanted to ask him about. 9 samples and it was a reliance upon 10 MR. GOUTMAN: Your Honor, 10 that that we generated an expert 11 there would be an inadequate chain 11 report and we proceeded to trial. 12 of custody if I weren't here. If 12 The question now is whether this 13 I didn't last week and this week 13 court will permit plaintiffs to 14 represent to this court as an 14 say, uh-uh, we don't have any 15 officer of the court exactly what 15 evidence in fact that all 28 16 happened. Now, certainly the 16 samples were not sent to you by 17 court can decide that I am not 17 Mr. Ziegler, Mr. Ziegler obviously 18 telling the truth. The court can 18 will not come in here and so 19 make whatever finding it wants, 19 testify, but we want to create the 20 but I will tell the court again 20 impression to this jury that 21 and 111 tell counsel again, who 21 something underhanded is going on, 22 continues to say I'm not 22 that these in fact are not all 23 questioning Mr. Goutman's honesty, 23 pre-fire samples. And in order to 24 but by the way, here is why I 24 litigate that factual issue, Your ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60649 122 124 1 Honor, in front of the jury, we 2 would have to have Mr. Ziegler 1 the samples. Before that time we 2 had no explanation for them and in 1 | 3 testify, we would have to have 4 myself testify, and that is a 5 serious tangent and it has 6 profound ethical considerations 3 fact called Mr. Ewing to the stand 4 to explain that yes, indeed, he 5 had sent samples to the PCB 6 defendants. That was never 5 f 7 concerning whether I could even 7 challenged by the defendant when 8 continue to represent Monsanto ten 8 Mr. Ewing was here. I have 9 months into this trial and whether 10 Mr. McClain can continue to 11 represent the plaintiffs. 9 subsequently confirmed with Mr. 10 Ewing that he in fact did send 11 fireproofing samples to the rii jj 12 Now, Your Honor, I believe 12 defendants. 13 that plaintiffs are estopped at 13 So we have these samples 14 this point from claiming that 15 anything, anything they sent me 16 was anything other that a pre-fire 17 sample. That's what they 14 that are an anomaly at best. The 15 real question is a technical legal 16 one and it doesn't involve anyone 17 testifying. It involves whether Awji 18 represented to me, that's what I 18 we have a chain of custody that is 19 represented to Mr. Woodyard, and 19 established. Mr. Goutman says he 20 that's what is in his report and 20 gave them to his secretary. I 21 that was what was in his 21 don't know how they do things at 1j 22 testimony. And most respectfully, 22 White and Williams, but for the j 23 Your Honor, I believe that should 23 life of me, how would the 24 the court allow plaintiffs now to 24 secretary know where to send them? 123 1 essentially say, well, maybe we 1 2 were wrong, we can't say we were 2 3 wrong for sure, but maybe we were 3 4 wrong. Maybe we sent you some 4 5 non-pre-fire samples, or post-fire 5 6 samples. Maybe we sent you some 6 7 post-fire samples, and we're going 7 8 to cross-examine this witness on 8 9 that possibility, would do a grave 9 10 injustice to the defendants, be 10 11 severely prejudicial and in my 11 12 opinion, Your Honor, most 12 13 respectfully warrant a mistrial. 13 14 That's why we raise this 14 15 objection. 15 16 MR. MCCLAIN: Your Honor, 16 17 the issue is in the report of 17 18 Woodyard, he says that 14 of these 18 19 samples came from Ewing. He says 19 20 that there were 14 samples from 20 21 Ewing. That's the information we 21 22 had before we came to court until 22 23 last week when Mr. Goutman came 23 24 forward with this explanation for 24 125 Without a cover letter, what would the laboratory know what to do with them? Do they just get this stuff in the mail with no kind of identification and the laboratory instinctively knows what to do with them and to assign them to Mr. Woodyard's account? And to Certainteed? How do they know that? How do they know to do that? These samples according to Mr. Goutman arrive at week later, unidentified from Philadelphia and the laboratory knows actually where they're coming from, who sent them and what purpose they're going to be analyzed for. I don't believe Mr. Goutman's memory is accurate on this. I do not doubt that he believes everything that he is telling the court, but there is something that doesn't add up here. Why is there no transmittal letter? Why does Ewing testify A i .j i "i .j 9]i ESQUIRE DEPOSITION SERVICES TOWOLDMON0060650 126 . 128 1 that he had 14 samples, the 14 1 fairness giving great liberality 2 samples that are reflected here 2 to Mr. Goutman to these samples 3 perhaps. And that he turned those 3 into evidence without the general 4 over to the defendants. But Mr. 4 pre-requisites the court normally 5 Goutman says he doesn't know 5 requires with regard to chain of 6 anything about them. There are 6 custody that I at least be able to 7 certain matters here that just 7 explore the lack of information 8 don't add up. Judge. And the 8 that we have for these samples. 9 reality is we've let these samples 9 That's what we ask the court to n 10 in without a chain of custody. So 10 consider in regard to making this. 11 we've got somewhat of a problem 11 Judge, I hesitate to say 12 here. The way that I intended to 12 this because I've not said it 13 handle it was -- 13 before in the case, but we feel 14 THE COURT: Before we take 14 strongly enough about these 15 issue about not having a chain of 15 samples that if we are foreclosed 16 custody, we may not all agree on 16 from asking questions about them, 17 the chain of custody, but the 17 that we will have no choice but to 18 court remembers correctly the last 18 join in Mr. Goutman's motion for a 19 person to sign off on the chain of 19 mistrial. This is fundamental to 20 custody was Mr. Ziegler. 20 our defense on these samples. And 21 MR. MCCLAIN: And it goes to 21 the fact that the witness was able 22 Mr. Goutman and the issue is - 22 to draw such conclusions from them 23 THE COURT: It goes to Mr. 23 on the basis of misinformation 24 Goutman in the form of the letter 24 that has already been identified, 127 129 1 we referred to earlier. 1 that is being Mr. Ewing took them 2 MR. MCCLAIN: Yes, and 2 and he had them before the fire. 3 that's the only chain of custody 3 is a matter that the jury should 4 we have. Under Pennsylvania law, 4 consider. 5 we have to have a chain of custody 5 MR. GOUTMAN: Your Honor, I 6 from Mr. Goutman to the laboratory 6 don't like to belabor these 7 and we do not have one. We do not 7 issues, but Mr. McClain has 8 have one. And no one disputes 8 continued to question my honesty 9 that we have one. 9 and I want to respond to this 10 So the issue is, the witness 10 court. First of all, again, he 11 not knowing where the samples came 11 says there is no question that we 12 from, representing in the report 12 don't have a chain of custody. We 13 that they came from Ewing, should 13 do have a chain of custody. I 14 we now be foreclosed from 14 have stated as an officer of the t 15 demonstrating that from the 15 court what that chain of custody 16 laboratory itself, that Mr. 16 is and what happened to those 'i 17 Goutman represents analyzed these 17 samples. j 18 samples, there is a lack of 18 Number two, this business 19 identification of where these 19 about Ewing and his testimony, 20 samples came from or the dates 20 last week we heard that Ewing i 21 upon which they were taken. I 21 testified there were really six 22 don't know on what principle we 22 pre-fire samples. Mr. Ewing says 23 can foreclose me from doing that. 23 he sent them to "the defendants." 24 It seems a matter of fundamental 24 I told the court I never received ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60651 130 132 1 anything from Mr. Ewing. And this 1 laboratory in reliance upon an 2 court you may recall said it would 2 assertion that they were pre-fire 3 be unusual for Mr. Ewing to send 3 samples. I never received any 4 samples directly to counsel and 4 other asbestos samples from Mr. 5 not through ~ directly to defense 5 Ziegler or anyone else in the 6 counsel and not through 6 claims office. Within a week 7 plaintiffs'counsel. Then Mr. 7 there is written receipt of those 8 McClain said last week, well, Mr. 8 samples from the laboratory. 9 Ewing sent them directly to the 9 That's the record before this 10 laboratory. The court may recall 10 court. 11 that. Mr. McClain said that to 11 MS. HERSCHEL: Your Honor, I 12 this court and I pointed out that 12 don't want to oversimplify this, 13 Mr. McClain didn't know until last 13 but it really isn't complicated as 14 week what laboratory it was. 14 Mr. Goutman just said. We asked 15 Now, the fact of the matter 15 for, Monsanto asked for 16 is that I got a box of samples 16 technically, pre-fire samples. As 17 from Mr. Ziegler and he told me 17 often happens in discovery, it 18 they were pre-fire and I sent them 18 took a little while, it took a 19 to the laboratory. And that's 19 formal request, it took a couple 20 what happened. Mr. McClain has 20 of letters, it took some telephone 21 nibbled at the edges to try to 21 calls, but finally plaintiffs' 22 cast some doubt on the veracity of 22 produced pre-fire samples and as 23 this. He says, for example, how 23 you're honor has focused again and 24 is it that the lab would know what 24 again, there is a letter from Mr. P i! 131 133 1 to do with these without thinking 1 Ziegler, it has one critical key 2 about -- I have trouble listening 2 piece of information in it. It 3 and speaking at the same time -- 3 says, here are the pre-fire 4 without considering, for example, 4 samples. He didn't give us dates 5 that in addition to the U.S. Mail 5 when they were taken. He didn't 6 connecting Chicago with 6 give us places where they were 7 Philadelphia, there are 7 taken. What information our 8 telephones. And that Mr. Woodyard 8 laboratory got they took off the 9 was an expert of ours, a 9 documentation that was with the 10 consultant of ours and that I was 10 samples. But he gave us one piece 11 in contact with him and that I was 11 of information on which we relied 12 sending them to Mr. Woodyard's 12 and on which Mr. Woodyard relied 13 laboratory. Again, Mr. McClain 13 and that was these are the 14 again pointing out the client is 14 pre-fire samples. And Mr. Goutman 15 identified as Mr. Woodyard. Yes. 15 has told you those pre-fire 16 It's his laboratory, he's our 16 samples from Mr. Ziegler stopped 17 expert. The client is also 17 shortly in Philadelphia and went 18 identified as Certainteed. Asl 18 right on to our laboratory. They 19 advised the court last week, both 19 were analyzed. Mr. Woodyard 20 Certainteed and Monsanto retained 20 relied on them, turned over a 21 Mr. Woodyard. So, again, a lot of 21 report relying on them to 22 nibbling around the edges. 22 plaintiffs last February, and it 23 The point is that I received 23 is as simple as that. 24 28 samples and I sent them to a 24 MR. HENDERSON: If the court f 1 ESQUIRE DEPOSITION SERVICES 1 f TOWOLDMONOQ60652 134 136 j 1 please, may I ask Ms. Herschel a 1 THE COURT: And ultimately i 2 question on the record? Do you 2 the laboratory has sent back 3 know who RFW Certainteed would be? 3 reports of those samples. Until 4 MS. HERSCHEL: I think it's 4 this point in the trial, not just 5 Roy Weston, but you could ask Mr. 5 today, but the day last week when 6 Goutman if you would like to put 6 it was first surfaced, to the 7 him on the witness stand. 7 court's understanding there has 8 MR. HENDERSON: Could you 8 been no question of Mr. Woodyard's 0 9 tell me -- 9 report or that there was 10 MS. HERSCHEL: Your Honor, 10 incorporated in that report 11 am I to be questioned here? I 11 matters which were incorrect. If 12 will be glad to answer any 12 the court is in error, we would be 13 questions the court has, but I 13 glad to hear it. In other words, 14 guess I'm getting a little annoyed 14 I don't know that there was a 15 at Mr. Henderson's approach to the 15 pre-trial challenge to this 16 matter. 16 report. 17 MR. HENDERSON: I would be 17 MR. MCCLAIN: When Mr. Ewing 18 interested to know who Richard 18 was here, he testified under oath 19 Wright is. 19 that although Mr. Woodyard's 20 MS. HERSCHEL: It's Roy 20 report said there were 14 samples 21 Weston, Tom. It's Mr. Woodyard's 21 that he took pre-fire, he did not. 22 company. 22 He only took six samples pre-fire 23 MR. MCCLAIN: Richard Wright 23 and Mr. Roux established that in 24 is on the document. 24 his examination of Mr. Ewing. Do 0 135 137 1 THE COURT: Was there an 1 you want to see that again, the 2 answer to that? 2 transcript? I've got those pages 3 MS. HERSCHEL: Roy Weston, 3 again. I showed you before. 4 Your Honor. Mr. Woodyard's 4 THE COURT: Yes. 5 company. 5 MR. GOUTMAN: Your Honor, to 6 MR. MCCLAIN: Richard Wright 6 correct the record, nowhere in Mr. 7 is written on the document. 7 Woodyard's report did he say that 8 MR. GOUTMAN: Richard Wright 8 he received 14 samples or that 9 is somebody in the laboratory, 9 Ewing took 14 samples. And I just 10 Your Honor. 10 remind the court that that was 11 THE COURT: We're at a point 11 based upon my misunderstanding 12 where that which was asked for was 12 that Ewing I thought worked for 13 sent from Mr. Ziegler to Mr. 13 Law. Apparently he doesn't. 14 Goutman. No quantities were 14 There's no doubt that Law 15 listed, no locations were listed 15 Associates pulled the samples 16 in Mr. Ziegler's letter. And they 16 pre-fire. il 17 were certified to be pre-fire. 17 In any event, that hardly 18 And we have Mr. Goutman who states 18 alerts us to a position now taken 19 that he sent those samples in the 19 by the plaintiffs that, oh, by the 20 manner in which he received them 20 way, those samples that Mr. 21 to the laboratory. DidI 21 Ziegler sent were not all 22 correctly state that? 22 pre-fire. There's nothing before ) 23 MR. GOUTMAN: That's 23 Thursday that would have alerted 24 correct, Your Honor. 24 us - last Thursday, that would ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60653 138 140 1 have alerted us that plaintiffs 1 samples did you take in May of 2 are taking that position. 2 1994 of fireproofing?" This is 3 MR. MCCLAIN: Your Honor, 3 page 354, Your Honor. It says, 4 page 31 of Mr. Woodyard's report, 4 "Actually I took samples of 5 this statement is contained. 5 fireproofing debris, chunks of 6 "Finally samples of asbestos 6 fireproofing and I took six of 7 debris were collected before the 8 fire by Ewing and analyzed 7 those samples." 8 Question: "You didn't take 9 recently for this report. These 9 seven. Right." 10 samples presumably represent outer 10 "No, I took exactly six." 11 fireproofing that fell on the top 11 "You didn't take 12 or 14. 12 of the ceiling tiles over a period 12 Right?" 13 of years. The results of the 13 Answer: "No." 14 analysis presented in Table 5 show 14 "All right." 15 that the pre-fire PCB 15 Then we go over to the 16 contamination consisted entirely 16 answer, 357 where Mr. Goutman 17 of Aroclor 1262 at an average 17 says - 18 pre-fire concentration of 3 ppm, 18 MR. GOUTMAN: I was not 19 well below the average 19 asking questions. 20 concentration determined by 20 MR. MCCLAIN: Mr. Goutman 21 Kominsky after the fire." 21 said he was not on notice, he said 22 Turn over to 25, "There are 22 that here two minutes ago. At 23 two groups of samples listed." 23 357, this is still Mr. Roux asking 24 Now, in looking at those samples, 24 the questions of Mr. Ewing, "Fine. 139 141 1 we could identify the Gannett 1 So if Monsanto Company's experts 2 Fleming numbers. 2 say you sent them 14 before the 3 THE COURT: You're reading 3 fire, that would be wrong. Is 4 from where? 4 that true?" I never took 14 5 MR. MCCLAIN: I'm reading 5 before the fire is what Mr. Ewing 6 from page 31. 6 responded. And so what we have is 7 THE COURT: Of Woodyard's 7 a representation in this chart 8 report? 8 there are 28 samples that Mr. 9 MR. MCCLAIN: Of Woodyard's 9 Ewing allegedly took, but Your 10 report. 10 Honor, we can kind of figure out 11 THE COURT: But you had left 11 what happened here on these lower 12 a sentence out. 12 samples because we can track back 13 MR. MCCLAIN: Your Honor, 13 those numbers to the Gannett 14 then we have Mr. Ewing's testimony 14 Fleming samples. So we always 15 that I've excerpted for the court. 15 believed there was great confusion 16 I would like to hand that up. It 16 on Mr. Woodyard's charts. And Mr. 17 was because Mr. Woodyard's report 17 Ewing, the only witness that could 18 represented that these samples in 18 testify about what was represented 19 this table came from Mr. Ewing and 19 to be the truth in Mr. Woodyard's 20 that they represented samples that 20 report, was here and testified to 21 were taken before the fire, that 21 the court on May 20 of this year 22 we asked -- that Mr. Roux asked 22 that in fact he did not take 14 23 these questions from pages 354, 23 samples, that he had only taken 24 355, 356 and 357. "How many 24 six. So if you want to change the f J ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60654 * 142 . 144 1 question did you take 28 samples, 1 dispute that that which I received 2 the answer is still the same. I 2 from Mr. Ziegler were not pre-fire 3 took six before the fire. And so 3 samples. And he didn't give you 4 we took testimony on this issue 4 an answer. What he said was that 5 many, many months ago. And Mr. 5 it was pointed out that whatever 6 Goutman was ready with an 6 we got were not from Ewing. We 1% 7 explanation when he stood up, he 7 realized that in May. They came 8 knew what the issue was and he 8 from Law Associates, not from 9 9 says now he gave this information 9 Ewing. But at no time before 1 10 to Mr. Woodyard. That's the 10 Thursday did we have any inkling 11 source of the mistake. Okay. 11 that they would say they're not 12 Maybe. I have to accept his word 12 pre-fire samples at all or at 13 on that, but I don't have to force 13 least half of them are not 14 all my cross-examination of the 14 pre-fire samples. Regardless of 15 witness about it. And everything 15 where they're from. They're not 16 that that suggests, that an expert 16 pre-fire samples. 17 witness blindly accepts the word 17 So Your Honor, the direct 18 of counsel on such a crucial 18 answer to your question is, as of 19 matter particularly in light of 19 May 1999, we were on notice that 20 the fact that all the samples have 20 Mr. Ewing took only six pre-fire 21 so many questions on their very 21 samples according to Mr. Ewing. 22 labels, I think is indicitive of 22 But we were never on notice that 23 perhaps a lack of rigor on the 23 that which I received from Mr. 24 part of this witness in reaching 24 Ziegler that was represented as 143 145 1 his conclusions. 1 pre-fire samples, were anything 2 MR. MCCLAIN: So the whole 2 but that. Were anything but that. 3 situation of Mr. Woodyard's report 3 The first time we heard that was 4 is in some question. How he 4 last Thursday when I believe this 5 received the conclusion about 5 court, in permitting us to pursue 6 Ewing, he will have to testify 6 the testing data generated from 7 about. Whether or not he reviewed 7 those samples, ruled that in fact 8 Ewing's testimony, he said he 8 we had relied detrimentally on 9 reviewed quite a bit of the 9 plaintiffs' assertions that they 10 testimony and I think he was here 10 were pre-fire samples. But all 11 for Ewing's testimony, what effort 11 this stands for is that the 12 did you make to try to correct 12 pre-fire samples didn't come from 13 this report following your 13 Ewing. They came from somebody 14 discovery that Mr. Ewing only took 14 else. It doesn't stand for the m 15 six samples before the fire, Mr. 15 proposition that they aren't 16 Woodyard? All those things are 16 pre-fire samples. ,n 17 certainly traditional issues for 17 MR. MCCLAIN: Your Honor, 18 cross-examination. I would ask 18 talk about unfair surprise, I had 19 the court not to inhibit my right 19 no idea about these other group of 20 to cross-examine this witness. 20 samples until Mr. Goutman stood up 21 MR. GOUTMAN: Your Honor, I 21 and gave me the analysis last 22 think ask counsel a specific 22 week. Last week, Judge. I got 23 question, which is, when we were 23 the analysis for this testimony 5 24 on notice that plaintiffs would 24 last week. Not May of last year. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60655 146 148 1 Not any time that I could prepare 1 witness on the stand. 2 anything. It was last week I got 2 MR. GOUTMAN: Your Honor, 3 this stuff. He says where was Mr. 3 finally, counsel said he didn't 4 McClain to tell us we had messed 4 know these test results until last 5 up these entire samples? I had no 5 week. On page 32, Your Honor, of 6 idea about the nature of this 6 Mr. Woodyard's report, all the 7 analysis. Mr. Goutman didn't 7 test results are there and there's 8 provide me with the analysis. All 8 no allegation that he's 9 he provided me was Mr. Woodyard's 9 misrepresented what Trent Severn 10 conclusions. I didn't know about 10 said these test results were. 11 the Severn Trent Laboratory. I 11 Plaintiffs' counsel has had these 12 didn't know about this story about 12 test results since February, March 13 his secretary shipping Mr. 13 1999. 14 Ziegler's samples. All of those 14 Secondly, those documents 15 explanations came last week when 15 were not produced to plaintiffs' 16 we pointed out the problems in Mr. 16 counsel because it wasn't until 17 Woodyard's report. That was the 17 Thursday that plaintiffs' counsel 18 first time those explanations were 18 raised any question, any question 19 provided to us. We had no idea 19 at all as to whether or not we 20 about these matters. All we had 20 received pre-fire samples. And 21 was his explanation that we were 21 Your Honor, the time to have 22 given in the report and we knew 22 raised this was pre-trial. That 23 that was wrong. We knew that the 23 was the time. The time when this 24 story they were telling in the 24 court gave all counsel an 147 14 9 1 report was wrong. We have no idea 1 opportunity to file motions, 2 what the true story is and I still 2 motions in limine, concerning this 3 don't know. I want to ask the 3 issue. But to now ten months on 4 witness questions about these 4 in the trial say, by the way, what 5 samples. He ought to know them. 5 you got from us wasn't all 6 He is the expert. He's is the one 6 pre-fire, we don't know where it 7 that is drawing scientific 7 came from, but it's not pre-fire, 8 conclusion on them. Is this what 8 is, we believe, unfair. Thank 9 a scientist does, simply to accept 9 you, Your Honor. 10 samples blindly without an 10 THE COURT: I think we're 11 identification of where they were 11 going to take a recess at this 12 taken. What if they were all 12 point. I know we're going to take 13 taken from the same spot and split 13 a recess at this point. We will 14 14 times? Doesn't that impact on 14 not have this resolved before 15 his conclusion about the levels of 15 closing time and I'm going to 16 contamination of the building? Of 16 dismiss the jury until tomorrow 17 course it would. Yet we don't see 17 morning. Well wait a few more 18 any analysis of that like a 18 minutes, but I want to go back and 19 careful scientist would engage in. 19 analyze this. But I don't know 20 Instead what we have are positions 20 that we're going to be able to 21 advanced without very much support 21 save the day for the jury at this 22 even from the documents produced 22 point? 23 to us last week and we have a 23 MR. GOUTMAN: We certainly 24 right to explore those with this 24 have no objection to the court 1 | f 1 A J j > S Aw , j \ Aw i i ] i j m wa l ESQUIRE DEPOSITION SERVICES # TOWOLDMONOQ60656 * > 150 - 152 1 taking whatever time it needs. 1 results of the samples they 2 THE COURT OFFICER: This 2 received which, according to them, 3 court will take a short recess. 3 were 14 in number. 4 Call of the Crier. 4 MR. GOUTMAN: Excuse me, 5 --- 5 Your Honor, there are 28 in 6 (A recess was taken.) 6 number. 7 --- 7 THE COURT: I saw two on 8 THE COURT CLERK: All rise. 8 there. Some had three digit 9 MR. HENDERSON: Was the jury 9 identification numbers, 14 of them 10 dismissed? 10 had three digit identification 11 THE COURT: No, not yet. 11 numbers and 14 had five digit 12 I'm thinking about it, but I want 12 identification numbers. And the 13 to make a statement first. 13 question in the mind of the court, 14 We have a very unusual issue 14 whether they were the same samples 15 in this respect. The question is, 15 split or 14 separate samples, but 16 in some way the number of samples 16 they were in the report of Mr. 17 analyzed by Mr. Woodyard's 17 Woodyard, the results of those 18 laboratory. To make that 18 samples, which was in the area of 19 decision, we have to look at the 19 page 34 of his report as I 20 genesis of the chain of evidence. 20 remember. 32, Table 5. 21 The chain of evidence starts with 21 Mr. McClain counters that 22 the transmission of certain 23 samples from plaintiffs' law firm 24 to the defendant's firm responding 22 Ewing's testimony is to the effect 23 that there were only six samples 24 that Mr. Ewing had taken prior to 151 153 1 to the request for samples for 1 the fire, and that he had taken an 2 testing. And in that, Mr. Ziegler 2 additional number of samples 3 of the McClain firm forwarded to 3 subsequent to the fire. The 4 Mr. Goutman, representing 4 report of Mr. Woodyard appears to 5 defendant Monsanto, samples to be 5 be, if we read the bottom line of 6 tested known as split samples 6 the report, of each page of the 7 since they were taken from the 7 report, to be dated February 26, 8 original samples. 8 '99, does that appear to be 9 The letter from Mr. Ziegler 9 correct? In fact it appears to be 10 to Mr. Goutman does not identify 10 dated 26-2-99. 11 the quantity of samples nor the 11 MR. GOUTMAN: I think that's 12 location from whence the samples 12 a good assumption, Your Honor. It 13 were taken, but the admission that 13 certainly was February of '99. 14 these samples were pre-fire which 14 THE COURT: The court 15 was in accordance with the request 15 assumes that within the time 16 for pre-fire samples. Mr. 16 period prescribed by this court 17 Goutman, who dispatched those 17 for the transmission and the 18 samples to the laboratory engaged 18 exchange of expert reports, that 19 by the defendant did not check the 19 in due course that was forwarded 20 number of samples received, but if 20 to the plaintiff so that the 21 the court remembers accurately, 21 plaintiff had it within the 22 sent them intact to the laboratory 22 prescribed period of time. 23 for analysis. The laboratory in 23 Now, this court is asked to 24 turn sent back a report on the 24 reform the letter that Mr. Ziegler ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60657 ) 154 156 1 sent to Mr. Goutman by introducing 1 THE COURT: On May 20,1999, 2 evidence, parole evidence, that 2 Mr. Ewing testified that he took 3 the letter doesn't quite stand for 3 six samples. 4 what it may appear to say. From 4 MR. MCCLAIN: And we called 5 the time that die plaintiffs 5 that to everyone's attention. 6 received the report of Mr. 6 THE COURT: Yes, and on the 7 Woodyard, no objections or 7 report received by the plaintiffs 8 exceptions were filed to that 8 in February or early March that 9 finding of the chart on page 32 of 9 there were 14 results or 28 10 the report dealing with the 10 results. Now, the court is not 11 results of these tests. 11 challenging as to why they did or 12 MR. HENDERSON: Excuse me, 12 didn't do something. The court is 13 Your Honor, I don't think there's 13 merely pointing out the evidence 14 any requirement that we file any 14 from which it can rule and the 15 objections to something that we 15 evidence is the letter is most 16 didn't understand any better than 16 straightforward. 17 anybody else might have because 17 MR. MCCLAIN: I don't mean 18 what we were proceeding under were 18 to interrupt the court again 19 the samples were taken by Ewing 19 except to say until last week we 20 and that's what Mr. Woodyard 20 had nothing on the record or even 21 reported. 21 to identify for us the source of 22 THE COURT: What we're 22 those samples other than Mr. 23 proceeding on is the letter of 23 Goutman standing up saying I have 24 transmittal from Mr. Ziegler to 24 this letter. But that was not the P 155 1 Mr. Goutman. 1 2 MR. MCCLAIN: With all due 2 3 respect, Your Honor, how would we 3 4 have known that when in the report 4 5 he represented he got the samples 5 6 from Ewing? We had no idea about 6 7 these things until Mr. Goutman 7 8 stood up last week and gave us 8 9 this long explanation about the 9 10 source of the samples. How in the 10 11 world could we before last week 11 12 have tried to correct the 12 13 situation when we weren't provided 13 14 any explanation about this other 14 15 than that Ewing took the samples? 15 16 MR. HENDERSON: That's page 16 17 31 of the report, Your Honor. 17 18 MR. MCCLAIN: That's what 18 19 the report says. And to fault us 19 20 for not calling it to anyone's 20 21 attention, that in fact the 21 22 reality is that we did not have 22 23 any explanation for what had 23 24 happened. 24 157 source as we understood it. He didn't tell us what he did with those samples until last week. And now we find that that is the explanation given for the report. But that was not in the report. And so before last week, we had no identification of it. THE COURT: I think that in the report on page 32, the table refers to pre-fire asbestos samples and there's 28 of them. Ewing's testimony back in May said that he only took six. At some point in time, these are all bits of information that are within the plaintiffs' realm as well as the letter that they authored. MR. HENDERSON: I would submit. Your Honor, excellent fire for cross-examination of Mr. Woodyard. THE COURT: If the question goes as to the number of samples i tj ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60658 <1 158 - 160 1 the Commonwealth sent to the 1 be waving a red flag. In fact, it } 2 defendant, an objection to the 2 would be -- 3 question of how Mr. Woodyard would 3 MR. HENDERSON: I'm sorry, 4 know of his own knowledge would 4 Your Honor, because the next 5 certainly be relevant and an 5 question would be, if he said all 6 objection to that question would 6 14 were from Mr. Ewing, then the 7 be sustained. I don't see how it 7 next question would be from whom 8 could not be. 8 did you get that information? H 9 MR. MCCLAIN: Your Honor, I 10 didn't follow. 11 THE COURT: You wanted to 9 THE COURT: You want to ask 10 him where he got the samples. He 11 didn't get the samples from Mr. 12 ask Mr. Woodyard how many samples 12 Ewing. But if you want to ask him 13 were sent, and I don't see how Mr. 13 from where he got the samples, you 14 Woodyard under any stretch of the 14 may. That's in the report that he 15 imagination would be privy to that 15 got the samples. I'm not telling 16 except from hearsay, if he even 16 you that you can't question him 17 knew the hearsay. 17 here. It's a question of that 18 MR. MCCLAIN: He's an expert 18 which is an admission that the 19 and can rely upon hearsay. That's 19 samples requested were sent cannot 20 the rule upon what an expert could 20 be challenged. 21 do. 21 MR. MCCLAIN: Your Honor, is 22 THE COURT: This isn't a 22 it permissible to point out that 23 question of relying upon 23 there was nothing on the labels 24 something. This is a question if 24 set in terms of the dates and 159 161 1 he's given something as a fact. 1 that's established on the record? 2 MR. HENDERSON: He says, 2 I'm not questioning pre-fire or 3 Your Honor, and Mr. McClain 3 post-fire, there's no date and the 4 referred to it earlier, at page 31 4 laboratory put the date on them. 5 in the second full paragraph, 5 So the laboratory - sorry, Judge. 6 where it begins, "Finally," it 6 THE COURT: I'm not 7 says, "Finally, samples of 7 questioning whether you're sitting 8 asbestos debris were collected 8 or standing. I understand that 9 before the fire by Ewing and 9 and the court is not taking an 10 analyzed recently for this 10 affront. 11 report." That's the only thing he 11 MR. MCCLAIN: I apologize. 12 could be talking about. That's 12 The information contained 13 what we want to question him 13 here in no way can be put on the 14 about. 14 plaintiffs' shoulders when it says 15 THE COURT: If the question, 15 the labels zero through one used 16 and this is not the question I 16 added date of 6-6-92, no date 17 heard you wanted to ask, if the 17 given on label. So there's 18 question you want to ask is how 18 nowhere to say that we put this 19 many samples did Mr. Ewing take 19 date on there. We never supplied 20 and if he knows, he may answer 20 a date in Mr. Ziegler's letter. 21 that. But to cross-examine him on 21 The laboratory did. Likewise, no 22 the number of samples that Mr. 22 location is given. We didn't 23 Ewing took when he would not be 23 represent that they were from 24 privy to that information, would 24 different floors. To the extent ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60659 162 164 1 that that is an impression created 1 don't know what the relevance of 2 because there's 14 samples, we 2 it is other than to create an 3 have the right to demonstrate from 3 impression that there was 4 their own documents there is no 4 something other than pre-fire. 5 identification given to where 5 That's the problem I have with 6 those samples are taken from. And 6 that question. 7 Mr. Woodyard needs to answer the 7 MR. MCCLAIN: The date is 8 question could they have all been 8 supplied in this document. 9 from one floor or could it have 9 THE COURT: What is the date 10 been a split of 14 -- that's all 10 on there? 11 that's is possible. Does that 11 MR. MCCLAIN: 6-6-92. 12 impact upon your opinion, sir? 12 MR. GOUTMAN: And the point 13 Those are legitimate questions. 13 he wants to make to the jury is 14 Judge. Even if you assume that 14 the laboratory supplied that date. 15 all the samples are pre-fire. 15 What is the relevance of that 16 MR. GOUTMAN: What we object 16 other than to create a suggestion 17 to. Your Honor, is any suggestion 17 that the samples were other than 18 that the samples are anything but 18 pre-fire? What is the relevance? 19 pre-fire. 19 MR. MCCLAIN: The issue is 20 THE COURT: That is what the 20 in his report they're identified 21 court is referring to. 21 as 6-6-92. And you've shown the 22 MR. GOUTMAN: We understand 22 jury this chart. 23 the court's ruling in that regard, 23 MS. HERSCHEL: Your Honor, 24 that they are bound by that 24 the only place that Mr. Woodyard's 163 165 1 letter. 1 lab got information about these 2 THE COURT: But as far as 2 samples was in the package that 3 asking the questions you have now 3 Mr. Ziegler sent to Mr. Goutman 4 espoused, the court doesn't have 4 and Mr. Goutman sent on to the 5 an objection. These are not the 5 laboratory. They got some chain 6 questions I understood were going 6 of custody information and they 7 to be the subject matter. 7 transferred it. But to suggest 8 MR. MCCLAIN: That's what I 8 that because half of them had 9 intended. That's why I blew up 9 dates on them and half of them 10 these charts, that's what I 10 didn't to suggest that they might 11 intended. 11 have been post-fire is what we are 12 THE COURT: If you want to 12 trying to avoid here because I 13 ask those questions, 111 rule at 13 think it would be counter to Your 14 the time they're offered because 14 Honor's ruling. 15 I've learned that questions 15 MR. MCCLAIN: I'm not 16 sometimes change over the course 16 suggesting anything other than on 17 of the night or whatever. But 17 463,462,461 and 460 no date is 18 basically those two questions that 18 given and the laboratory says they 19 you just espoused are not 19 put the date of 6-6-92 because 20 questions which the court would 20 that was the oldest date. That's 21 take issue with. 21 what they said. They put the date 22 MR. GOUTMAN: I would add 22 on these samples. True? Yes. 23 one caveat. The fact that the 23 THE COURT: They were the 24 labels do not have a date on it, I 24 oldest date of Kominsky's samples? fI ] i t I i l I i -j ! ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O66O 4 166 - 168 1 MR. MCCLAIN: The Gannett 1 plaintiffs are in possession in 2 Fleming samples. 2 essence of this and to suggest to 3 MR. GOUTMAN: But Your 3 the jury -- we're not suggesting 4 Honor, I ask plaintiffs' counsel, 4 post-fire, but we're suggesting it 5 what is the relevance other than 5 might have been taken from '85, 6 to suggest to the jury that the 6 '86, '87, where is that coming 7 samples might not be pre-fire and 7 from? 8 I didn't get an answer. 8 MR. MCCLAIN: I'm not 9 MR. MCCLAIN: What is the 9 suggesting any date. I have no 10 definition of pre-fire? When were 10 idea what the date is. There's no 11 they taken, Mr. Goutman? Were 11 date provided. That's the whole 12 they taken in 1985, '86, '87? Who 12 point. Neither does he, neither T - tt1I 13 knows? The issue is nor does the 13 do you. And to get the jury up 14 witness. Were they taken from 14 here to suggest it was immediately 15 different floors? 15 before the fire, no one knows that 16 THE COURT: There is a 16 and we didn't represent that in 17 marking zone and if we're to have 17 our letter. 18 a hearing in camera on that as to 18 THE COURT: There was a 19 the meaning of the letter, the 19 request for discovery. And if 20 request of the pre-fire samples 20 there is any misunderstanding, 21 requested. Now, it's not any 21 it's based upon the fact that the 22 magic date. It's referring to 22 letter is not specific. 23 specific samples that the two 23 MR. MCCLAIN: Judge, I'm 24 parties are referring to and they 24 sorry that that is your view. I 167 169 1 understand what samples that 1 think that's an unfair view in 2 they're talking about and if you 2 light of the fact that we sent 3 want to talk to both of them and 3 samples and if there's no 4 find out what the date is, fine. 4 identification on the labels, 5 MR. MCCLAIN: Pre-fire is 5 there's no identification on the 6 the issue according to Mr. 6 labels. We didn't represent them 7 Goutman. I don't know what other 7 to be anything other than 8 identification is provided. 8 pre-fire. That's all that was 9 Nothing is provided on the labels. 9 asked for. No dates were given to 10 Nothing is provided in the letter. 10 say between those dates. It was 11 THE COURT: The letter 11 any samples taken pre-fire. These 12 refers to conferences between the 12 samples, if in fact the court is 13 parties referring to the specifics 13 correct - 14 of this request. 14 THE COURT: Are you 15 MR. MCCLAIN: The request is 15 suggesting that these aren't the 16 any samples pre-fire, Your Honor. 16 Ewing or the Gannett Fleming 17 MR. GOUTMAN: The problem 17 samples? 18 with that, Your Honor, is Mr. 18 MR. MCCLAIN: I don't know. 19 McClain represents the owner of 19 THE COURT: You sent them. 20 that building. He can't in good 20 MR. MCCLAIN: Judge, the 4 21 faith represent to the court that 21 court has concluded that without a 22 there were, or can he, that there 22 chain of custody. 23 were samples taken in '85, '86 and 23 THE COURT: I haven't 24 '87 and held and so forth. So the 24 concluded. I'm only reading your ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O66I 170 172 1 letter. You can't get away from 1 representation about what they are 2 the fact that your letter says 2 than is entitled to be made either 3 these are the pre-fire samples. 3 from this letter or these labels 4 MR. MCCLAIN: Judge, be 4 is not correct. So it would be an 5 accurate in regard to what we 5 appropriate question in my view, 6 said. The Gannett Fleming 6 and the court will rule, of 7 pre-fire samples. And every one 7 course, to say to them what date 8 of those labeled samples is a 8 were they taken on and have him 9 Gannett Fleming pre-fire sample. 9 say I have no idea. They were 10 The labeled samples. Not the 10 pre-fire at some point. That's 11 unlabeled ones. Those all relate 11 the only question I intended to 12 to the Gannett Fleming report. It 12 ask. What date were they taken 13 all ties together for me. And I 13 on? I have no idea. And that's 14 have no idea how the laboratory 14 what he'll have to say. The 15 got them and I have no chain of 15 laboratory dated ~ 16 custody from Mr. Goutman about 16 THE COURT: Realistically he 17 what he sent. I do not have it. 17 can't even say that they're 18 THE COURT: Gannett Fleming, 18 pre-fire because he wouldn't have 19 were they in the picture in '85? 19 any knowledge of whether they were 20 MR. MCCLAIN: I don't know. 20 pre- or post- except what was told 21 But if you're suggesting that 21 to him and what has been certified 22 these samples here were Gannett 22 on the record that they are 23 Fleming samples, I don't know 23 pre-fire. That's all. 24 that. 463,462,461,460. If 24 MR. MCCLAIN: That's right, 171 173 1 you're suggesting that that is the 1 I'm not even contesting that point 2 import of the letter, I understand 2 at this point. I'm simply saying 3 the court's ruling and 111 live 3 that even the laboratory isn't 4 with it. But to suggest that we 4 saying that they're anything other 5 told them the dates of these 5 be pre-fire. They're not saying 6 things is false. We didn't. We 6 they're from different floors. 7 never represented it. The labels 7 They're not saying that they were 8 don't represent it. The 8 evenly spread through the 9 laboratory recognized we hadn't 9 building. They're not saying 10 represent any dates. These other 10 anything about them except that 11 ones, we did put dates on because 11 here are some samples of 12 they're Gannett Fleming samples. 12 fireproofing pre-fire, 14 of them. 13 The dated samples tie back to the 13 Where they came from, no one can 14 Gannett Fleming report and every 14 tell you. And we didn't make that 15 one of the descriptions matches up 15 representation to them that they 16 with the Gannett Fleming report 16 came from any particular floor, 17 and you can trace it back. But as 17 any location or were evenly 18 to these, they're absolutely 18 distributed, none of that. 19 without any identification. And 19 I want to demonstrate that 20 I'm not saying anything at this 20 for a particular reason, Judge, 21 point understanding the court's 21 and you'll have to listen to my 22 ruling on pre-fire. I'm saying to 22 questions about it, but there's a 23 have this witness get up there and 23 particular reason in terms of 24 make more in terms of a factual 24 scientific validity of this J j ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60662 4 174 . 176 1 analysis. Not whether they're 1 when these were taken. They 2 pre-fire or post-fire. That's 2 already represented to us that 3 secondary to my line of questions. 3 they were taken implicitly in 4 THE COURT: IH listen to 4 1992. 5 the line of questions. 5 MR. MCCLAIN: If you're 6 MR. GOUTMAN: I just want to 6 saying that is your understanding, 7 add one point and that is, I know 7 Mr. Goutman, then they must be 8 it's 4:00, that in feet a 8 those 14 samples contained on the 9 representation was made about the 9 Gannett Fleming chain of custody. 10 date when these samples were 10 That's the only record of how many 11 taken. Everyone knows where the 11 samples Gannett Fleming took. 14, 12 Gannett Fleming samples came from. 12 not 28. So if there are 28 > 13 They were taken by Law Associates 13 samples, these must be splits of > 14 in 1992. Everyone knows that. 14 those same samples. If we can 15 And it's not disputed. So they're 15 identify where they came from, 16 saying that there's no basis for 16 that might be helpful in terms of 17 saying that those samples, 463, 17 an examination. If Mr. Goutman 18 462,461 and 460, there's no 18 and I are in agreement that these 19 representation as to date is just 19 are the Gannett Fleming samples 20 not true. 20 and that they must be because 21 MR. MCCLAIN: Maybe we're on 21 there haven't been any other 22 to something here. If you're 22 identified, those are all 23 saying that those are the same 23 contained on that chart and these 24 samples reflected in that chart, 24 are all Gannett Fleming and we 175 177 1 IH have to think about it 1 have this chain of custody from 2 overnight, but I might be willing 2 Gannett Fleming that identifies 3 to say maybe you're right. Maybe 3 the sources, then maybe we're 4 we can date them. Maybe they're 4 beyond this as being an argument. 5 exactly the same. Are you willing 5 Is that what you're willing to 6 to say that? Those are the same 6 stipulate to, Mr. Goutman? 7 samples that are dated. In other 7 MR. GOUTMAN: I'm not 8 words, are you willing to say 463 8 willing to stipulate to anything, 9 matches up with the 63463 number? 9 Your Honor. I don't know why you 10 MR. GOUTMAN: I didn't say 10 think I would be. What I'm 11 that before and I'm not saying it 11 representing to the court is that 12 now. What I'm saying is that 12 plaintiffs' counsel got up here 13 counsel is incorrect when he says 13 and said there's been no i 14 there has been no representation 14 representation as to when these 15 by plaintiff about the date this 15 samples were taken and in fact 16 stuff was taken. They represented 16 there was a representation in his 17 in Mr. Ziegler's letter to me they 17 cover letter. 18 are the Gannett Fleming samples 18 MR. MCCLAIN: If you're 19 taken pre-fire. Everyone knows 19 saying you're willing to accept 20 when the Gannett Fleming samples 20 that representation that these are 21 were taken. They were taken by 21 all Gannett Fleming samples, 22 Law Associates in 1992. That's 22 that's okay, too. If that's your 23 why I have some problems with 23 representation. But if you're 24 plaintiffs questioning him about 24 saying I don't know where the ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60663 178 180 1 samples came from and neither does 1 CERTIFICATE 2 plaintiffs' counsel, then I want 2 I hereby certify that the 3 to establish that with the 3 proceedings and evidence noted are 4 witness. One way or the other. 4 contained fully and accurately in the 5 Either these are all Gannett 5 notes taken by me on the deposition of 6 Fleming samples in your report or 6 the above matter, and that this is a 7 not. 7 correct transcript of the same. 8 MR. GOUTMAN: Your Honor, 8 9 there are other exhibits we have 9 10 objection to. I don't know when 10 11 the court wants to take them up, 11 12 tomorrow morning, now, whatever. 12 Linda Rossi Rios 13 It might take some time. I don't 13 Dated: February 1,2000 14 know. The plaintiffs'counsel has 14 15 shown them to me, I'm going to go 15 16 back to the original sources and I 16 (The foregoing certification 17 think that might inform some of my 17 of this transcript does not apply to any 18 objections and I might withdraw 18 reproduction of the same by any means, 19 some of my objections. I think an 19 unless under the direct control and/or 20 overnight might make things run 20 supervision of the certifying reporter.) 21 more quickly. 21 22 THE COURT: Instead of 22 23 having the jury come in at 9:30 23 24 tomorrow morning, and they were 24 179 1 here today, possibly it might be a 1 LAWYER'S NOTES 2 good idea to give us an extra hour 2 PAGE LINE 3 to review the other objections and 3 4 give you a chance to review what 4 5 Mr. McClain has said. 5 6 MR. GOUTMAN: I think that 6 7 would be smart, Your Honor. I 7 8 would be in favor of that. 8 9 THE COURT: We're going to 9 10 adjourn till 9:30 tomorrow 10 11 morning. We'll be here at 9:30. 11 12 The jury can come in at 10:30. 12 13 I think we can dismiss them 13 14 from out there if that's all right 14 15 with you. 15 16 MR. GOUTMAN: Absolutely. 16 17 MR. MCCLAIN: Yes. 17 18 THE COURT: With that, we 18 19 can stand in adjournment until 19 20 9:30 tomorrow morning. 20 21 21 22 22 23 23 24 24 181 j ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60664 182 i i j i j ______ A______ abate 77:6 abated 45:15 77:9 abatement 63:7 63:11 64:10 64:17,18,22 65:7,19,24 66:267:11,20 68:13 70:22 76:21,2277:3 80:11,15,17 abating 34:12 67:12 ability 6:9 able 13:918:10 32:9 80:5 95:6 119:3 128:6 128:21149:20 about 12:7 15:20 16:18 17:5 20:20 25:4,20 26:6 28:21 30:3 31:18 34:4 36:7 37:4,4 38:9,13 39:8 39:18 41:7,13 42:17 44:5,9 44:20 45:4 46:11 47:2 48:24 49:16 50:15,19 54:7 54:8,10 55:12 55:13,14,15 55:22,24 56:2 56:4,857:3,12 57:17 58:10 59:3 60:2,14 60:22,23 62:17 63:2 70:5 71:18 73:9,10 75:13 77:8,16,19 78:4,10,15,16 79:5,10 80:11 80:23 81:7,24 82:6 90:17,24 91:24 92:7 93:4 94:1 96:6 96:21 97:21 102:23 104:12 105:4,7,11,15 105:19 106:2 107:4,12 108:10 109:2 110:7 111:9 116:4 118:13 119:9 126:6 126:15 128:14 128:16 129:19 131:2 141:18 142:15 143:5 143:7 145:18 145:19 146:6 146:10,12,12 146:20 147:4 147:15 150:12 155:6,9,14 32:7 159:12,14 admission 165:1167:2 110:24151:13 170:16 172:1 160:18 173:10,22 admit 93:1 174:9 175:1 admitted 61:14 175:15,24 90:24 above 22:3 24:7 adopted 73:18 26:23 27:3 73:20,21 69:4 180:6 advance 1:9 above-captioned 55:10 1:13 advanced absent 86:8 147:21 absolutely 55:4 advertised 84:21171:18 49:10 179:16 advised 131:19 accept 142:12 aerospace 1:7 147:9 177:19 2:24 accepts 142:17 affront 161:10 accident 47:9 after 7:6 13:21 accordance 18:6 20:18 151:15 21:6 23:16 according 29:5 40:10 41:10 81:6 125:11 44:3,18 45:17 144:21152:2 49:3 57:11 167:6 91:3 120:17 account 125:8 138:21 accurate 93:14 afternoon 100:4 101:20 85:17,18 102:19 116:21 again 7:18 125:19 170:5 13:14,14,19 accurately 13:24 14:5 151:21180:4 15:2 27:9 32:5 across 23:2,3 44:3 48:2 act 14:9 49:14 51:17 activities 10:12 52:6 67:17 23:12 48:9 69:21 70:8 activity 23:6 72:7 76:17 47:17 103:10 108:2 actual 74:6 116:17 119:20 76:24 92:19 119:21129:10 actually 13:12 131:13,14,21 18:16 24:15 132:23,24 24:16 27:10 137:1,3 59:15 76:14 156:18 77:12,14 against 29:23 125:14 140:4 AGENCY 1:4 add 125:22 ago 37:3 75:10 126:8 163:22 94:10 113:2 174:7 114:16 140:22 added 91:12 142:5 161:16 agree 99:13 addition 131:5 108:21126:16 additional agreed 90:20 23:13 46:24 agreeing 99:12 51:15 78:17 agreement 81:8 84:2 176:18 153:2 aid 11:9,13 address 55:17 12:3,5,6 47:16 101:9 air 7:10 16:4 adequate 119:2 46:3 48:4 119:7 78:23,24 adjourn 179:10 alerted 137:23 adjournment 138:1 179:19 alerts 137:18 Administration allegation 52:18 53:1,21 148:8 55:21 allegedly admissibility 109:22 141:9 allow 28:14 30:733:5,5 46:2295:13 118:21122:24 allowed 30:11 70:1180:1 108:7 111:17 117:9118:1 allowing 75:11 118:23 allows 57:14 almost 70:3 72:3 78:3 94:10,13,16 121:6 alone 55:6 112:23 along 72:18 already 23:14 40:24 48:24 53:19 71:14 128:24 176:2 alternatives 76:10 although 136:19 always 16:11 33:19 40:1 42:8,21 75:10 83:14 141:14 amazing 50:11 AMERICA 1:8 among 120:6 amount 26:15 26:16 amounts 29:21 analysis 88:24 89:2 100:16 104:5 117:16 138:14 145:21 145:23 146:7 146:8 147:18 151:23 174:1 analyze 76:24 149:19 analyzed 20:16 89:7 125:17 127:17 133:19 138:8 150:17 159:10 Andrew 36:14 and/or 180:19 announced 31:5 annoyed 134:14 anomaly 124:14 another 53:18 54:15 79:4 84:14 109:14 answer 8:17 35:4,7,8 100:3 100:9 134:12 135:2 140:13 140:16 142:2 144:4,18 159:20 162:7 166:8 anybody 18:15 24:21 154:17 35:12 41:14 anyone 8:4,9,17 45:8,12 47:11 67:10 97:22 131:22 124:16 132:5 arrive 125:12 anyone's arrived 112:7 155:20 arriving 23:15 anything 11:19 articles 87:14 17:1919:6 87:21 39:18 63:2 asbestos 40:16 102:23 105:19 45:19 63:19 122:15,15,16 69:8,12,18 126:6 130:1 70:17 71:3 145:1,2 146:2 77:11 78:13 162:18 165:16 79:5 80:7,8,10 169:7 171:20 80:17,24 81:6 173:4,10 81:10,10 89:6 177:8 94:9 97:4 anywhere 112:5 113:21 116:8 113:23 114:4 apartments 132:4 138:6 7:19 157:11159:8 apologize Aside 49:22 161:11 asked 38:18 apparently 60:21 86:6,15 61:7 89:3 90:23 132:14 117:11137:13 132:15 135:12 appear 30:1 139:22,22 116:7 153:8 153:23 169:9 154:4 asking 79:20 APPEARANC... 128:16 140:19 2:1 140:23 163:3 appears 153:4 aspect 82:14 153:9 aspects 67:22 apples 27:19 68:16,17,20 29:9,10 70:6 applicable 21:4 assertion 132:2 apply 180:17 assertions applying 57:16 145:9 58:1 asserts 113:19 appreciate Assessing 23:16 84:19 assessment approach 12:9 14:18 134:15 16:18 17:3 appropriate 19:13,19 30:17 33:4 20:12 25:10 44:1 86:17 42:20,24 43:5 113:8 172:5 43:11,17,20 Approximately 44:8 50:20 79:11 assessments area 15:5 16:14 43:12 25:19 26:2 assjgn 125:7 53:19 69:7 assignment 152:18 110:23 areas 15:5 16:8 assist 65:2 16:8,16 26:13 Associates 41:21 68:23 37:19 137:15 92:5 144:8 174:13 aren't 78:17 175:22 145:15 169:15 assortment argument 29:2 34:3 30:22 67:2,7 assume 11:11 75:12 76:1 22:5 24:5 86:10 94:3 100:24 101:15 177:4 103:8 104:17 Aroclor 138:17 106:23 162:14 around 10:12 assumes 26:22 11:2115:10 153:15 17:24,24 assuming 27:9 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60665 183 102:18 104:23 107:1 assumption 106:9 118:7 121:7 153:12 assurance 44:13 attention 99:3 118:4155:21 156:5 August 120:5 authored 157:18 available 56:11 avenues 32:6 average 26:10 44:20 52:15 59:2 62:19 81:7 138:17 138:19 averaged 59:23 averages 106:16 avoid 15:7,8 165:12 avoided 48:7 aware 32:15 56:21 57:18 59:6 88:17 away 12:8 32:24 46:19 48:8 49:13 59:12,16,22 71:7,9,23 82:7 170:1 a.m 1:17 B B 2:3 88:12 back 15:14 19:6 24:24 35:6,9 37:11 40:2,8 44:2 48:2 61:1 61:3 62:16 68:9,11 70:8 82:13 84:22 85:6 113:2 116:11136:2 141:12 149:18 151:24 157:13 171:13,17 178:16 background 39:9 53:3,5 66:13 80:5 backup 75:15 bags 18:3 45:24 balance 78:14 bandied 94:1 bar 27:20 28:2 28:3 53:13,15 53:16 based 19:3,20 20:9 24:11 26:7 46:13 59:22 69:2 74:9 80:4 81:5 95:10 108:24 121:6 137:11 168:21 bases 41:15 basic 10:4 14:17,20 25:2 basically 14:7 19:8 35:18 41:7 42:12 163:18 basis 11:8 59:21 75:12 83:21 92:24 93:494:5 108:13 109:4 128:23 174:16 bear 106:10 110:20 before 1:11,17 7:10 16:10,12 17:12 23:1 25:4,21 26:5 31:23 34:12 39:17 40:18 41:13 42:20 43:2,16,20,22 43:24 45:16 45:18 49:1 51:16 59:15 63:20 67:4 70:5,22 73:3 77:14 81:2,17 85:21 90:14 91:3,6 97:8 99:6 102:1 104:18 123:22 124:1126:14 128:13 129:2 132:9 137:3 137:22 138:7 139:21141:2 141:5 142:3 143:15 144:9 149:14 155:11 157:7 159:9 168:15 175:11 began 37:10 begin 24:14 34:12 beginning 23:22 begins 159:6 Begley 1:18 behold 120:15 being 1:20 28:7 29:22 30:11 44:8 48:5 50:4 51:10 52:7 81:5 82:7,8,9 82:9 92:7 102:19 116:4 129:1 177:4 belabor 129:6 belief 105:10 believe 29:16 80:11 81:11 83:8 87:8 89:10 90:6 94:4 99:15 100:4,21 101:16,21,23 101:24108:24 112:11113:7 118:20 120:4 120:8 122:12 122:23 125:18 145:4 149:8 believed 141:15 believes 102:20 105:7 125:20 believing 107:18 below 18:11 20:1424:3 44:15 52:5 70:3 138:19 bench 87:2 92:18 best 10:13 124:14 better 44:12 116:18 154:16 between 35:19 73:17,23 104:8,11 167:12 169:10 beyond 58:18 76:15 177:4 bid 63:16,17 big 20:221:14 24:20 68:20 bigger 17:14 24:19 bit 143:9 bits 157:15 black 87:22 blew 77:14 114:19 163:9 blind 49:22,22 blindly 142:17 147:10 block 19:5 26:4 26:4 blow 80:7 blown 82:10 91:7 blow-ups 86:2 87:13 88:18 blue 23:3 board 40:15 49:7 books 87:14,22 both 68:22 91:3 131:19 167:3 bottom 36:2 107:16 153:5 BOULEVARD 1:22 bound 104:20 162:24 box 121:8 130:16 break 61:24 77:18 84:24 85:4 117:21 breathing 78:24 brief 62:3,5 briefly 62:16 briefs 54:15 56:5 bring 24:16 33:1285:21 98:20 108:16 118:14 bringing 56:18 broad 2:20 93:7 108:11 broader 24:15 broadest 107:2 broke 78:7 broken 110:12 brought 91:5 118:3 buffer 45:8 building 7:7,11 7:14 17:4,8,10 18:2 19:16 20:10,18 21:5 21:5 22:1,3 25:9,19,22 26:6 27:11 29:7,14 31:23 31:24 34:13 40:21 41:1 42:23 43:23 44:2,7,17 45:12,13,14 47:1248:17 49:3 50:13 51:9,19 52:8 53:23 63:8,19 63:23 64:3,6 65:20 70:10 71:22 72:2,11 77:7,10,13,22 80:8,9 81:1 82:8,8,9 92:9 97:8 98:4 113:24 147:16 167:20 173:9 buildings 7:16 7:20,21 8:23 67:13 72:8 bulk 58:8 62:20 62:21 63:3 burned 18:3 40:22 business 19:10 129:18 busy 22:20 C C 88:12 180:1,1 calculations 17:1 call 12:20 19:10 23:4 46:21 51:11 52:12 62:5 79:7,8 150:4 called 22:18 60:5 65:3 77:5 84:12 95:17 124:3 156:4 calling 11:23 22:1155:20 calls 74:18 132:21 came 7:6 9:16 60:10 92:3 100:10 107:5 108:18,19 110:5 118:6 123:19,22,23 127:11,13,20 139:19 144:7 145:13 146:15 149:7 173:13 173:16 174:12 176:15 178:1 camera 166:18 candor 112:15 Capitol 3:15 car 13:11 cards 87:23 care 46:23 107:8 careful 147:19 carpet 12:7,12 carried 15:14 case 12:2,22 13:18 14:3 15:117:14 22:2,5,6,17 23:15 24:6 27:7,13 28:6 29:5,11,13 30:6,14 31:3 32:12,17 33:12 34:16 54:11 63:16 63:18 75:13 80:21 82:21 95:10 97:3 103:14 110:18 121:4 128:13 cases 24:2 cast 130:22 categories 12:19 caulk 70:9 71:19,20,22 72:1,9,15 77:19,20 caveat 163:23 ceiling 138:12 Center 2:12 centimeters 63:1 certain 18:14 84:21 94:9 117:18 126:7 150:22 certainly 18:3 34:17 46:18 81:15 119:16 143:17 149:23 153:13 158:5 certainteed 1:7 4:7 125:9 131:18,20 134:3 certainty 82:23 certification 180:16 certified 135:17 172:21 certify 180:2 certifying 180:20 cetera 85:2 chain 91:8 92:21 93:6 97:17 98:13 109:21110:11 110:14,15,24 111:5,10,15 111:20,21,23 113:13 114:17 115:12,23 117:2,10,15 117:17,22 118:2,18 119:2,11 124:18 126:10 126:15,17,19 127:3,5 128:5 129:12,13,15 150:20,21 165:5 169:22 170:15 176:9 177:1 chairs 52:12 57:11 challenge 136:15 challenged 124:7 160:20 challenging 156:11 chance 179:4 change 141:24 163:16 changes 73:11 73:13 78:18 81:12 chapter 54:17 characterization 11:24 15:18 16:10 19:14 32:3 43:16,20 characterize 12:8 16:5 Charles 1:11 6:4 chart 22:21 141:7 154:9 164:22 174:24 176:23 charts 85:2 141:16 163:10 cheap 69:13 check 84:17 151:19 CHEMREX 1:8 Chicago 115:11 131:6 children 10:20 11:3 chiseled 72:19 77:21 chiseling 71:21 72:1 choice 128:17 * f a ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O666 184 choosing 57:6 26:20 27:7,13 Company's considering contradict court 1:1,14 6:3 { chunks 140:5 28:13 29:4 141:1 131:4 110:9 6:7 8:14 10:24 cite 54:16,19 31:13,17 34:6 comparing consisted contrasted 32:8 10:24 22:15 City 1:15 34:15 35:11 27:19 29:9 138:16 control 50:3 28:1,4,14,15 claim 28:5,23 35:15 36:6 comparison consistent 47:5 180:19 28:20 30:5,10 29:20 41:6,11,20 28:7 consultant conversations 30:17 32:20 claiming 30:23 42:3,6,16,22 completely 131:10 120:11 33:7,14,23 31:4 122:14 47:2,23 48:7 90:3 95:20 consultants copies 88:10,14 34:19 35:3,5,9 claims 111:14 50:11,14 109:8 65:4,12 92:19 36:1038:3,22 111:14 132:6 73:10 87:17 completeness consultant's corporation 1:7 38:2239:2 CLAIN 2:2,3 cleanups 49:9 113:10 65:14 1:8 3:11 53:6,13,14 8:7 10:19 82:18 compliant contact 131:11 correct 11:2 55:16 56:6,9 21:11 27:18 clear 14:15 54:24 contact/phone 20:24 21:2,20 56:16 58:17 27:24 28:4 72:8 complicated 116:12 30:19 32:18 58:23 60:21 29:15 31:9 clearance 25:20 132:13 contain 40:16 37:16 39:1 60:24 61:3,4 32:13 33:13 clearest 116:19 compromise contained 59:5 85:22 62:2,4,8,10,13 37:20,24 clearly 57:6 40:3 70:10 93:11 87:10 93:18 67:8 68:11 ) 38:10,17 95:23 conceded 96:15 98:12 138:5 93:22 94:6 74:2479:22 52:19,24 53:4 CLERK 150:8 concentration 161:12 176:8 112:12113:17 81:20 83:3,11 53:8 54:2,5 client 95:7 59:23 138:18 176:23 180:4 135:24 137:6 83:15,18,19 55:7,19 56:14 116:9,12 138:20 containment 143:12 153:9 83:23 84:14 57:15 60:12 131:14,17 concerned 11:23 15:3 155:12 169:13 84:19,2085:3 60:20 66:23 closed 45:8,13 84:20 96:21 44:2445:3,5 172:4 180:7 85:7,8,14,16 67:6,24 68:4,7 45:23 concerning 45:16,21 46:8 correctly 85:18 87:8 74:17,21 closer 34:20 59:20 60:4 contains 17:20 100:14 126:18 88:13,20 79:18 83:6,13 closing 149:15 72:2273:24 contaminate 135:22 89:19,21 83:21 84:7,23 closure 14:7 88:21122:7 16:8 correspondence 90:19 91:9 clairvoyance 19:10 149:2 contamination 117:6 120:8 92:15,21,23 74:22 cloth 52:14 conclude 74:10 15:7 16:2 cost 27:9,12 93:20,24 94:3 clarification Cocciardi 28:9 concluded 17:23 18:17 28:1142:16 96:20,21 30:10,12 31:20 37:11 64:13 169:21 47:10 52:4 43:4 46:8 98:16,22 99:1 clarify 28:15 37:15 38:5,6 169:24 106:20 138:16 68:20 69:11 101:4,7,11,19 clean 7:13 46:247:15 conclusion 147:16 69:12,14 72:2 103:10 104:20 13:10,24 15:5 49:7,14 52:7 143:5 147:8 contents 51:4,7 78:8 79:4 80:6 105:1107:24 16:16 18:18 Cocciardi's 147:15 51:9,19,23 80:11 81:8 109:11110:21 19:4,8 21:24 28:5,11,16,21 conclusions 7:5 52:3,21 60:6 costing 78:1 111:19 112:14 25:10 27:2 31:18 46:10 52:1 59:20 61:20 82:6,12 costs 28:16,22 112:16,23 29:14 31:14 code 54:19 60:3 64:9 82:15,17,18 30:24 31:2 113:11,19 41:1,1742:11 coincidentally 67:21 68:15 contesting 48:22 49:17 114:9,17,21 44:24 53:23 121:2 82:21 93:7 173:1 76:21 77:1 115:2,5,18,22 55:5 58:15 collected 52:17 106:17 108:12 continue 60:1 78:5,17 80:4 116:1,6,6,16 64:6 77:13 138:7 159:8 119:6 128:22 122:8,10 counsel 60:22 116:20 117:8 cleaned 7:17 collecting 15:21 143:1146:10 continued 46:2 83:2 87:16 118:1,21,22 19:12 21:6 23:20 concrete 72:19 129:8 89:16 93:21 119:14,15,17 29:6 46:15,19 colloquial condition 23:17 continues 94:20 98:9 119:18,20 46:2047:18 95:16 conduct 59:20 119:22 107:15 112:14 120:2 121:13 48:12,16 come 25:17 confer 83:1 contract 46:2 113:2,18,20 122:24 123:22 50:22 51:1 40:24 55:1 114:7 46:10 51:11 113:22 119:21 125:21126:14 64:3 85:6 92:4,5 conferences 76:21 130:4,6,7 126:18,23 cleaning 8:23 108:9 118:2 167:12 contractor 142:18 143:22 128:4,9 13:2116:12 121:18 145:12 confirmation 25:16 30:14 148:3,11,16 129:10,15,24 16:13 18:13 178:23 179:12 13:18,19 30:24 37:23 148:17,24 130:2,10,12 19:1 20:22 comes 65:15 18:22 19:7,15 38:2,9,14 39:4 166:4 175:13 131:19 132:10 25:1,14 26:14 coming 125:15 25:21 39:8,16 40:12 177:12 178:2 133:24 134:13 26:2437:4 168:6 confirmed 40:15 41:9 178:14 135:1,11 41:8,14,21 COMMISSION 124:9 48:22 49:17 counsel's 30:22 136:1,12 42:7,9 43:3 1:4 confused 104:6 60:9,11,15 counter 12:13 137:4,10 44:4,19 47:2 common 14:17 confusion 61:6 63:15 13:7 18:16 139:3,7,11,15 49:2 50:19 70:21 75:18 141:15 65:22 78:7 165:13 141:21143:19 51:15 commonwealth congratulate contractors counters 145:5 148:24 cleanup 8:5,10 1:1,14 6:2,3 6:8 27:16 29:3,11 152:21 149:10,24 8:18 9:22 85:15 158:1 Connecticut 29:22 31:2 couple 40:19 150:2,3,8,11 12:16,21 communicating 3:17 34:3 37:10 132:19 151:21152:7 13:10 14:19 24:9 connecting 39:14 40:24 course 10:11 152:13 153:14 15:16 16:10 companies 131:6 49:5,23 50:6,7 14:14,19 153:14,16,23 17:1118:5 49:11 consider 74:2 64:12 66:10 17:14 23:9,24 154:22 156:1 19:22 20:4,11 company 1:7,9 128:10 129:4 76:3 82:4 37:7 75:7 156:6,10,12 20:18 21:1,20 1:9 3:20 77:4 considerations contractor's 147:17 153:19 156:18 157:9 22:17 25:5 134:22 135:5 122:6 39:8 61:8 163:16 172:7 157:23 158:11 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60667 185 158:22 159:15 117:2,10,15 160:9 161:6,9 117:18 118:2 162:20,21 118:18 119:2 163:2,4,12,20 119:12 124:18 164:9 165:23 126:10,16,17 166:16 167:11 126:20 127:3 167:21168:18 127:5 128:6 169:12,14,19 129:12,13,15 169:21,23 165:6 169:22 170:18 172:6 170:16 176:9 172:16 174:4 177:1 177:11178:11 178:22 179:9 D 179:18 D 5:2 88:12 courtaulds 1:7 daily 10:10 2:23 damage 12:10 courtroom 1:15 45:7 17:8 86:18,24 damages 28:6,8 87:5,10 28:17,23 court's 99:3 29:17,23 30:4 118:15 136:7 30:6,1432:17 162:23 171:3 32:22 33:3,11 171:21 DANAHER cover 89:21 94:12 96:18 3:13 data 19:14,15 120:22,24 20:10,15 22:4 125:1177:17 51:22 52:2 CRACKEN 57:8 69:2 2:17 75:14 145:6 create 121:19 database 69:3 164:2,16 date 91:12,13 created 162:1 91:15,16,18 creating 33:1 96:12 98:7 credentials 105:21,23 8:13 crier 62:6 150:4 critical 133:1 106:22 118:9 161:3,4,16,16 161:19,20 cross 15:7 16:8 163:24 164:7 17:22 30:9 164:9,14 31:6 32:6,11 165:17,19,20 32:19 33:5 165:21,24 84:5 cross-examinat... 90:22 107:23 166:22 167:4 168:9,10,11 172:7,12 108:5,15,17 174:10,19 112:18 113:7 175:4,15 142:14 143:18 dated 97:1 157:21 cross-examine 93:3 96:7 105:15 123:8 143:20 159:21 cross-examined 105:22 112:9 153:7,10 171:13 172:15 175:7 180:13 dates 91:24 107:6 127:20 94:18 133:4 160:24 CRSS 31:1 66:2 66:5 crucial 142:18 165:9 169:9 169:10 171:5 171:10,11 cup 11:13 day 115:22 cupboard 13:13 custody 91:8 92:21 93:6 97:17 98:13 116:1136:5 149:21 day-to-day 10:11 deal 51:8 109:21110:11 110:14,15,24 111:5,10,15 111:20,21,23 113:13 114:18 115:13,24 dealing 15:24 16:1 74:6 154:10 deals 80:3 Dear 97:3 debris 15:13 depth 23:23 discussed 29:21 17:16 18:4 describing 52:22 81:17 45:24 47:7 17:1218:20 97:5 72:10 138:7 descriptions discusses 32:7 140:5 159:8 171:15 discussing 7:5 December designed 65:18 32:6 120:10 designing 64:22 discussion 28:3 DeChiara 65:7 53:16 54:7 84:11 detail 23:2,13 108:3 114:11 decide 43:1 24:13 81:24 dismiss 149:16 99:9 119:17 detailed 24:10 179:13 decided 25:13 details 14:18 dismissed 69:5 80:7 detergent 13:13 150:10 deciding 24:24 detergents dispatched decision 150:19 42:11 151:17 declared 6:3 determination disposal 68:24 decontaminate 55:2 79:16,21 70:1,8 71:16 31:23 determine 73:10 75:21 decontamination 15:2219:3 dispose 57:6 78:5,10 39:2 80:5 disposed 77:22 deem 30:18 determined 81:16 defendant 2:23 43:22,24 disposing 68:22 3:10,19 4:7 78:24 79:24 dispute 37:23 124:7 151:5 138:20 144:1 151:19 158:2 determining disputed defendants 16:24 51:14 174:15 1:10 123:10 detrimentally disputes 127:8 124:6,12 145:8 distributed 126:4 129:23 develop 17:1 173:18 defendant's developed 9:5 diverge 106:13 99:16 150:24 10:5 20:5 document defended 95:10 50:14 19:11 26:4 121:4 developing 91:6,7 93:9,12 defense 29:8 25:17 51:12 93:14 105:13 128:20 130:5 68:24 115:12,21 defer 84:5 DGS 37:15 38:5 116:2,8,10,11 definition 115:19 134:24 135:7 166:10 diagram 21:4 164:8 degree 82:22 22:21 documentation deliberate 27:2 difference 14:7 19:11 delivery 99:22 42:10 69:11 133:9 demolished different 7:20 documents 61:8 31:24 45:15 12:17 25:24 109:1112:3 demolishing 25:24 75:17 115:3,9,23 34:13 72:8 75:20 78:19 119:4 147:22 demolition 63:7 92:5 118:8 148:14 162:4 63:11,20,22 161:24 166:15 doing 9:3 10:10 64:8 66:3 173:6 23:17 24:15 68:21 72:10 differently 84:8 35:18 37:13 72:12 77:1 difficult 92:13 39:12 41:19 81:2 92:16 42:2 47:22 demonstrate difficulties 6:10 49:2,23 50:1 93:12 102:4 digit 152:8,10 51:13 61:14 106:19 162:3 152:11 71:19 72:22 173:19 digits 106:11 76:13,18 79:3 demonstrated dinner 11:10,12 82:2 84:17 117:1 direct 38:18 87:2 94:23 demonstrating 144:17 180:19 127:23 127:15 directing 99:2 dollar 61:20 deodorize 41:1 directly 104:7 67:11 deodorizing 130:4,5,9 dollars 57:10 41:9 44:4 dirty 16:14 58:14 60:4 DEPARTMENT disclosed 56:1 72:3 78:3 1:2,3,5 disclosure done 8:1,5,9,18 depending 56:15 57:23 12:1113:3,21 23:23 25:7 discovery 14:3,8,10 deposition 1:21 132:17 143:14 18:23,24,24 61:10,13 168:19 25:14 26:2,3 180:5 discuss 9:17 26:16,17 35:20,21 39:17 43:12 44:8 45:16,18 48:5,7,14 50:4 50:12 74:15 75:3,6,8 83:23 door 24:21 doubt 116:3 125:19 130:22 137:14 down 9:17 11:18 22:22 25:19 77:18 downgrade 80:1 downgraded 78:21 dozens 19:24 75:19,19 draw 52:2 128:22 drawing 147:7 draws 119:7 dripping 11:21 dropping 34:23 Drug 52:18 53:1,21 55:21 duct 70:22 duetboard 70:15,18 71:4 ductwork 70:9 70:16 71:9 due 153:19 155:2 duration 23:4 during 18:19 23:9 37:7 40:22 51:23 65:23 73:7 74:5 94:3 dust 15:13 47:8 D'Andrea 61:11 E E 5:2 88:12 180:1,1 each 6:9 153:6 earlier 47:1 86:7 97:5 127:1159:4 early 156:8 easier 9:16 87:23 easy 12:2 23:10 eat 53:24 EDGE 6:1,14 6:17 62:4,9 85:8,15 114:20 115:14 edges 130:21 131:22 effect 81:14,14 94:18 152:22 effort 143:11 Eight 47:24 either 50:2,21 54:20 103:15 i i ? ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O668 4 186 172:2178:5 4:297:2 107:18114:5 33:10 153:9 155:21 74:22 140:24 elected 51:8 essence 119:8 123:19,21 expenses 77:17 159:1160:1 167:4 electrical 66:15 168:2 124:3,8,10 expensive 163:23 168:21 finish 23:5,7 66:16 essentially 8:10 ELECTRONICS 69:22 123:1 125:24127:13 129:1,19,20 49:15 69:16 69:2471:17 169:2,12 170:2174:8 finished 33:20 44:3 1:8 establish 129:22130:1 72:13 177:15 finishing 25:23 elevated 26:14 111:20 115:23 130:3,9 experience factor 16:23 fire 7:6,1018:3 emergency 1:4 178:3 136:17,24 37:13 38:6,15 factors 17:9 20:18 21:20 \ 40:11,14 established 137:9,12 39:1146:14 facts 91:5 22:16 23:16 employed 37:2,6 39:19 138:8 139:19 49:23 50:1 fectual 121:24 26:20 27:7 31:22 41:16 124:19 140:24 141:5 60:1161:14 171:24 37:1140:10 employee 136:23 161:1 141:9,17 61:2164:15 failure 28:23 40:17 41:11 107:21 establishes employees 40:4 115:12 143:6,14 144:6,9,20,21 64:2265:6 66:6,21,22 39:22 foir 32:2 54:6 45:1,7 46:5,15 47:19 48:8 50:9 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102:8,12 24:16,19 everywhere exhaust 45:10 78:19 89:6,7 final 14:2,6 105:9 139:2 51:2052:9 27:1 exhibit 9:7,10 90:12 91:2 19:7,9 141:14 166:2 79:9 82:7 evidence 28:24 21:4,10 35:22 94:21102:3 finally 52:10 169:16 170:6 error 91:4 40:6 93:2 36:11,13,16 107:9,20 132:21138:6 170:9,12,18 94:20 136:12 99:15 117:22 81:18 92:18 110:18 112:19 148:3 159:6,7 170:23 171:12 escapes 61:7 121:15 128:3 92:20 115:1 113:6 121:15 find 11:20 24:1 171:14,16 espoused 163:4 150:20,21 exhibits 85:20 121:22 124:3 102:2 157:4 174:12 175:18 163:19 154:2,2 87:6 88:4 89:4 124:10 128:21 167:4 175:20 176:9 esquire 1:21 156:13,15 178:9 130:15 141:22 finding 119:19 176:11,19,24 2:3,4,11,19 180:3 exist 117:12 142:20 145:7 154:9 177:2,21 3:2,3,4,5,14 Ewing 91:2 expended 33:8 fine 18:6 33:13 178:6 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60669 187 flexibility 46:21 floor 1:22 3:6 15:9 17:17 44:21 81:3 108:20 162:9 173:16 floors 20:14 24:24 25:24 26:23 40:17 42:145:1,6,10 45:11,17,23 46:1,6,15,20 46:23 47:9,19 48:10 50:12 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39:17 43:6 hiring 39:14 hospital 7:21 inadvertently instinctively JOYCE 2:19 49:12,21,24 49:8 hour 179:2 33:1 125:6 jr 1:11 6:4 50:2 125:4 hits 15:9 house 10:12 inappropriate instructed judge 87:1 141:10 home 10:14 15:11 30:7 87:4 29:19 100:24 104:19 kinds 7:16 18:1 homes 7:22 HOYLE 4:1 95:21 instruction 104:22 126:8 kit 47:16 homey 10:20 human 76:12 inc 1:7,8 2:24 30:17 128:11145:22 kitchen 18:15 honesty 119:23 humphrey 2:2 insulation ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60671 189 1 knew 49:9 142:8 146:22 146:23 158:17 knock 11:13 Knocks 11:9 know 7:13 8:4 8:9,16,17 12:5 16:1117:19 26:7 30:2 32:22 39:18 42:6 66:1 83:20 88:4 92:2,13 100:8 100:17,23 101:20 102:13 102:15,24 103:1,17 104:5 106:7,8 107:7,24 108:8,17,19 109:9,11 111:7 115:14 124:21,24 125:2,9,10 126:5 127:22 130:13,24 134:3,18 136:14 146:10 146:12 147:3 147:5 148:4 149:6,12,19 158:4 164:1 167:7 169:18 170:20,23 174:7 177:9 177:24 178:10 178:14 knowing 127:11 knowledge 7:9 60:14,23 65:21158:4 172:19 known 151:6 155:4 knows 30:5 92:6 98:3,5 104:16 125:6 125:14 159:20 166:13 168:15 174:11,14 175:19 Kominsky 81:7 138:21 Kominsky's 69:3 165:24 Kool 11:9,13 12:3,5,5 Kool-Aid 12:11 12:23 13:1,5 13:19 14:12 15:9 18:21 L lab 24:16 48:4 75:14 130:24 165:1 label 161:17 labeled 170:8 170:10 labels 91:11,13 91:23,24 92:13 103:2 118:11142:22 160:23 161:15 163:24 167:9 169:4,6 171:7 172:3 laboratories 104:8111:13 115:10 laboratory 88:24 89:1,24 91:11,14,17 92:11 93:5 97:23 98:8 103:1105:16 105:23 111:6 111:17,24 112:8 113:16 114:18 115:9 116:2 117:8 118:4 120:21 125:2,5,14 127:6,16 130:10,14,19 131:13,16 132:1,8 133:8 133:18 135:9 135:21136:2 146:11150:18 151:18,22,23 161:4,5,21 164:14 165:5 165:18 170:14 171:9 172:15 173:3 Labs 111:11 lack 68:23 127:18 128:7 142:23 LAGNESE 3-13 laid 60:17 land 12:11,12 landfill 69:8,13 69:14,19 70:12 71:10 71:23 72:12 72:16 81:17 landfills 70:1 71:16 72:14 large 57:7 last 7:18 25:19 35:4,6,8 50:10 61:2 68:9,10 69:1 88:20 96:2 106:10 113:12 116:23 119:13 123:23 126:18 129:20 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130:15 134:16 142:19 163:7 180:6 matters 66:13 90:20 108:10 108:22 126:7 136:11146:20 may 13:8 16:15 16:2117:16 18:10 23:21 23:22 33:21 39:2 58:21 60:24 62:9,11 70:23 83:1 87:7 99:1,15 101:11103:11 110:18 114:20 126:16 130:2 130:10 134:1 140:1141:21 144:7,19 145:24 154:4 156:1 157:13 159:20 160:14 maybe 17:13,13 i 1 9 J ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60672 190 ! 32:24 40:19 meaning 19:11 minute 53:14 179:20 need 13:914:3 39:23,24 40:7 43:6 106:7 22:2104:19 98:16100:24 MORRIS 4:1 14:419:17 41:4,5 42:18 123:1,3,4,6 166:19 minutes 140:22 most 19:14 36:6 24:24 26:16 42:19 43:14 142:12 174:21 means 26:21 149:18 48:19 49:15 27:1,20 33:18 43:15 44:22 175:3,3,4 47:13 180:18 mirarchi 1:11 87:12,1789:8 75:24 79:1 44:23 59:17 177:3 measured 42:4 6:4 90:1108:13 84:24 91:5 70:24 82:20 MC 2:2,3,17 meet 20:19 misimpression 122:22123:12 needed 21:1 93:16 103:23 8:7 10:19 Mega 54:20 33:2 156:15 51:16 115:1,15 21:1127:18 55:1473:2,4 misinformation motion 128:18 needs 25:14 129:18 150:16 27:24 28:4 74:1,7 75:5 128:23 motions 149:1 150:1162:7 151:20 152:3 u 29:15 31:9 members 21:15 misleading 28:9 149:2 neither 168:12 152:6 153:2 32:13 33:13 34:5 36:20 30:19 move 18:16 168:12178:1 157:24159:22 37:20,24 memory 116:21 misrepresented 24:20 26:4 never 29:4 37:7 175:9 38:10,17 125:18 148:9 46:2247:11 42:19,24 numbered 52:19,24 53:4 mention 53:18 missing 103:11 89:15 99:9 44:12 82:17 97:18100:14 53:8 54:2,5 mentioned 47:1 Missouri 2:6 moving 11:20 91:6 96:15 100:19 55:7,19 56:14 53:1 54:14 misstatement 16:14 17:24 112:16 113:22 numbers 30:6 57:15 60:12 59:1 69:1 33:9 much 10:4 113:23 114:3 31:15,16,19 60:20 66:23 71:18 80:22 mistake 107:17 12:1917:12 117:11124:6 32:3 79:5 67:6,24 68:4,7 merely 99:2 142:11 18:2020:1,10 129:24 132:3 88:14103:3 74:17,21 156:13 mistakes 36:5 20:17 22:24 141:4 144:22 106:4 110:20 79:18 83:6,13 messed 146:4 36:19 81:24 25:13,13 161:19 171:7 139:2 141:13 83:21 84:7,23 met 19:17 82:1 26:17 27:8,9 new 74:13 152:9,11,12 mcclain 11:1 56:10 57:13 mistrial 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115:16,20 12:10,18 44:24 45:3,21 mystery 104:15 34:8 61:22 58:19 60:12 116:22 122:10 13:22 15:22 46:5,8 48:3 M.D 1:2 173:18 60:18 74:17 123:16 126:21 15:23 16:2 49:7 82:5 non-pre-fire 79:18 123:15 127:2 129:7 18:2 24:15 monometer N 123:5 149:24 158:2 130:8,11,13 26:17 61:23 47:16 48:9 N 5:2 normally 79:3 158:6 163:5 130:20 131:13 154:17 165:10 monsanto 1:9 name 6:1,15 128:4 178:10 134:23 135:6 166:7 168:5 3:10 122:8 38:13,20,24 NORTH 1:8 objections 88:5 136:17 138:3 175:2 176:16 131:20 132:15 61:6,12 65:14 Notary 1:19 154:7,15 139:5,9,13 178:13,17,18 141:1151:5 116:7 note 113:13,15 178:18,19 140:20 143:2 178:20 179:1 MONTGOME... napkin 11:19 noted 91:14 179:3 145:17 146:4 million 27:14 2:17 narrative 91:1 121:1180:3 objective 39:24 151:3 152:21 29:1,7,12,14 months 122:9 national 17:5 notes 91:10 40:1,5 155:2,18 31:19 32:8,9 142:5 149:3 nature 18:4 180:5 181:1 obligation 156:4,17 34:4,7,10 mop 12:15 37:14 38:16 nothing 29:12 112:15 158:9,18 42:17 46:12 mopping 16:13 39:1261:15 102:14 103:3 obtained 104:9 159:3 160:21 49:1 52:16 41:8 67:6 86:4 88:3 137:22 156:20 obvious 16:1 161:11163:8 59:4,7 62:20 more 8:5,10,18 146:6 160:23 167:9 40:6 164:7,11,19 69:4 70:4 72:3 13:10 16:6 neal 3:13,14 167:10 obviously 12:17 165:15 166:1 77:8,12,16 17:13 18:12 83:7,8,13 84:1 notice 55:11,11 121:17 166:9 167:5 78:3,16 79:6 23:1,23 24:10 84:9 55:12,13,13 occasions 104:1 167:15,19 80:12 81:8 24:13 27:2 necessarily 57:2 140:21 occupancy 168:8,23 millions 57:10 34:11,13 10:10 143:24 144:19 17:10 169:18,20 57:10 58:13 46:12 49:18 necessary 144:22 occupants 170:4,20 58:14 60:4 75:22 95:18 26:1147:18 November 19:16 82:9 172:24 174:21 82:3,4,5 149:17 171:24 48:18 69:17 120:9,9 occupied 42:1 176:5 177:18 mind 11:16 178:21 72:4 76:19 nowhere 137:6 occurred 15:4 179:5,17 33:2 65:15 morning 6:6,7 77:23 79:12 161:18 37:12 mean 43:21 152:13 6:24 7:1,2,3 79:17 number 7:20 occurring 97:8 45:2,21 48:1 mine 10:15 61:24 91:10 necessitated 17:6 31:10,11 99:7 48:23 49:20 mineral 1:6 149:17 178:12 63:22 31:19 36:11 October 120:9 156:17 3:20 178:24 179:11 36:13,23,24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60673 191 off 11:2119:5 45:9,13,24 53:24 69:8 71:2299:10 114:12126:19 133:8 offer 54:8 offered 163:14 office 7:19 51:20 52:8,15 65:19 67:12 82:7 89:11 94:11 99:23 101:20,22 120:13 132:6 officer 119:15 129:14 150:2 OFFICES 2:10 often 19:10 132:17 oh 84:7 137:19 okay 14:4 68:7 72:10 73:17 85:13 142:11 177:22 old 10:15 oldest 165:20 165:24 once 23:9 32:5 45:23 111:21 one 2:12 3:6 4:3 7:22 12:20 15:15 19:1 21:12,14 29:11 36:23 43:8 50:10 53:14 57:4,19 58:3,10 62:16 62:24 65:15 68:21,21 69:3 69:7,24 70:14 72:12 82:13 91:7 92:4,6,9 93:16 98:2,5 99:4 101:17 102:22 103:5 103:8 104:16 105:14 107:7 111:14 112:4 113:15 124:16 127:7,8,8,9 133:1,10 147:6 161:15 162:9 163:23 168:15 170:7 171:15 173:13 174:7 178:4 ones 88:5,17 170:11171:11 one-half 109:21 only 20:23 30:15 47:21 48:4 49:18 57:11 69:2 88:17 101:22 106:14 117:24 127:3 136:22 141:17,23 143:14 144:20 152:23 157:14 159:11164:24 169:24 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