Document NNBvYn15M5YR4DG52vOjnOnVE

1 The Honorable Sharon Armstrong Hearing Date: Friday, February 17, 2006 2 Time: 3:30 p.m. With Oral Argument 3 4 5 6 7 8 9 10 11 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON 12 IN AND FOR THE COUNTY OF KING 13 14 RANA FRENCH, as Personal Representative of 15 the Estate of RALPH DALE, 16 Plaintiff, 17 v. 18 SAGERHAGEN HOLDINGS, INC., et al. 19 Defendants. Case No. 05-2-09268-8SEA SUPPLEMENTAL DECLARATION OF J. MICHAEL MATTINGLY IN SUPPORT OF WARREN PUMPS, LLC'S MOTION FOR SUMMARY JUDGMENT 20 I, J. Michael Mattingly declare and state as follows: 21 1. Iam one of the attorneys representing Warren Pumps, Inc. in this matter. 22 23 2. Attached hereto as "Exhibit H" is a true and accurate copy of selected portions of 24 the perpetuation deposition transcript of Ralph Dale, taken on April 21, 2005. 25 3. Attached hereto as "Exhibit I" is a true and accurate copy of selected portions of 26 the deposition transcript of Ralph Dale, taken on April 29, 2005. PAGE 1 - SUPPLEMENTAL DECLARATION OF J. MICHAEL MATTINGLY IN SUPPORT OF WARREN PUMPS, LLC'S MOTION FOR SUMMARY JUDGMENT Steven V. Rjzzo, P.C. Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 TELEPHONE: (503)229-1819 1 4. Attached hereto as "Exhibit J" is a true and accurate copy of the Court's Order 2 Granting Defendant General Electric Company's and Swenson Technology, Inc.'s Motions to 3 Suppress Perpetuation and Discovery Depositions, entered by this Court in this matter on 4 January 20, 2006. 5 I declare under penalty of perjury under the law of the State of Washington that the 6 7 foregoing is true and correct to the best of my knowledge. 8 Dated: February 16, 2006 at Portland, Oregon. 9 10 STEVEN V. RIZZO, P.C. 11 /i 12 13 J. Michael Mattingly,jWSBA# 33452 Attorney for Warren Bumps, Inc. 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 2 - SUPPLEMENTAL DECLARATION OF J. MICHAEL MATTINGLY IN SUPPORT OF WARREN PUMPS, LLC'S MOTION FOR SUMMARY JUDGMENT Steven V, Rizzo, P.C. Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 telephone: (503)229-1819 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY RALPH DALE, Plaintiff, vs. ) ) ) SABERHAGEN HOLDINGS,INC; et al) ) Defendants. ) Case No. 05-2-09268-8 SEA VIDEOTAPED DEPOSITION ON ORAL EXAMINATION FOR PERPETUATION PURPOSES OF RALPH DALE 10:30 a.m. April 21, 2005 815 Jackson Street Ketchikan Alaska 99901 Page 1 UEXHIBIT. PARE / QF lr__ SEAK Professional Services, LLC 70c7bab7-7729-4b0a-ba8c-03bf6f04c7db 1Q Page 113 Thank you, Mr. Dale, I appreciate your testimony today. f 2 Godspeed. Pass the witness. Doyouwant to take a 1 3 break? | 1 4 A Yes. | 5 THE REPORTER: Off record. 6 2:10 \ j 7 Defense Counsel reserved the right to crossexamination f , 8 pending the completion of the Examination for Discovery, j 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBIT. 25 PAGE,,iLof_2 SEAK Professional Services, LLC 70c7bab7-7729-4b0a-ba8c-03bf6f04c7db IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY RALPH DALE, vs. Plaintiff, SABERHAGEN HOLDINGS,INC; et ) ) ) ) ) al) ) Defendants. ) ___________________) Case No. 05-2-09268-8 SEA DEPOSITION ON ORAL EXAMINATION FOR DISCOVERY PURPOSES CONTINUED OF RALPH DALE 10:03 a.m. April 29, 2005 815 Jackson Street Ketchikan, Alaska 99901 Page 1 EXH!BIT_*&_ OF 7 SEAK Professional Services, LLC 0b9731 b5-241 b-47c0-8a14-9c076c086180 Page 5 1 REPORTER'S TRANSCRIPT OF PROCEEDINGS 2 BE IT REMEMBERED that, pursuant to Notice of Taking 3 Deposition upon oral examination for Discovery Purposes of 4 Ralph Dale on Friday, the 29th day of April 2005, at the hour 5 of 10:33 a.m. thereof, at the 815 Jackson Street, Ketchikan, 6 Alaska 99901, before Judy A. Zenge appearing, a Notary Public 7 in and for the State of Alaska, duly commissioned and 8 qualified, personally appeared, Ralph Dale called as a witness 9 by the defendants, who was thereupon examined and interrogated 10 as hereinafter set forth: 11 THE REPORTER: On record. 12 MS. McDONALD: The record should reflect that Mr. Dale 13 instructed me this morning to instruct Mr. Mesher that he is 14 no longer welcome to come on the property. (Indiscernible - 15 oxygen machine noise). He has been sanctioned for this kind 16 of behavior in the past. We'll be moving for a protective 17 order. All objections to Mr. Mesher firm on behalf his 18 clients (indiscernible - oxygen machine noise) for the 19 duration of this deposition. 20 And I've repeatedly asked you guys, to come up with a 21 (indiscernible - oxygen machine noise) to get through this. 22 And Mr. Dale's blood pressure yesterday was so high. I'm not 23 blaming you, I think the rest of you have been very 24 professional, including Brian. But what I'm going to do is 25 I'm going to start with Jim, and go around the room give SEAK Professional Services, LLC PAGE. Z OF / 0b9731 b5-241 b-47c0-8a14-9c076c086180 Page 6 1 everybody 30 minutes, I'm going to rotate around the room. 2 Obviously, I'm upset too, but the way I think to proceed 3 today, (indiscernible - oxygen machine noise). 4 MR. 2ERINGER: This is Brian Zeringer, and just, with 5 respect to the comments by Ms. McDonald, I want the record to 6 reflect that I am with the same law firm as Barry Mesher. I 7 have not come here today representing either of the clients 8 that Mr. Mesher has been here representing. I am not prepared 9 to ask questions on behalf of the clients that Mr. Mesher has 10 been representing, and so it's a -- it is a tremendous 11 disadvantage and I consider it prejudicial to those clients 12 that he has been representing. As to Mr. Mesher's conduct, 13 for the record, I can't agree with the representations that 14 have been made regarding him, nor can I agree that Mr. Mesher 15 has been sanctioned in the past for anything like what was 16 going on yesterday. That's all I have to say and we'll 17 proceed as best we can under the circumstances. 18 MS. MCDONALD: Okay. And after 30 minutes, I'll stop 19 each person and we'll go and the next, and we'll keep going 20 around the room until we're done. You can go ahead, Mr. 21 Horne. 22 THE REPORTER: Mr. Dale, I'll just remind you that you 23 remain under oath. 24 MR. DALE: Still under oath. Yes. 25 RALPH DALE __ XHIBIL_-L DAGE... 3 OF.. 7 SEAK Professional Services, LLC 0b9731 b5-241b-47c0-8a14-9c076c086180 1A 2 What pieces. Here again, my main job was Page 49 u construction, jf $ 3 new construction. That was my main work at the plant. 3 Q Correct. 4A And then I went -- moved into those other areas, if I had 5 knowledge of those areas............ 6 Q Right. I 7A ............and usually, we'd -- to have our people become more 8 knowledgeable about all the phases of the plant. We 9 would -- on these pump lists, we might exchange. Instead 10 of going to the acid plant every time, we might go to the 11 pulp preparation building or the wood room or some other 12 area. 13 Q To change out a particularpump? 14 A Switch apump or whatever it might be. It didn't have to 15 be a pump, another piece of equipment. 16 MS. McDONALD: Steve, we have to move it around, so 17 finish your questions. 18 MR. RIZZO: Yeah. Okay. Let me just take -- just to try I 19 to close it down. 1 20 Q Is it a fair statement to say that during the shutdowns, 21 while you were doing your walk throughs, you were not I 22 primarily focused on pumps? 23 A Well, we focused on anything that needed to be looked 24 into. 25 Q Right. And just to -- and this will only take a minute. SEAK Professional Services, LLC 0b9731 b5-241 b-47c0-8a14-9c076c086180 Page 185 1 court know for later, that I'm here ready, and willing to 2 complete my cross examination of you during this deposition. 3 MS. BOLLERO: And I would also like to add for the record 4 and should have done so before I ceased questioning, that I 5 have merely scratched the surface and I don't know that I 6 would have given up questioning had I thought that four or 7 five other people were going to come onboard afterwards. I 8 thought we were very close to being done. 9 MS. MCDONALD: We're done now. You're done Ralph, you can 10 relax. 11 MS. DINSDALE: Just for,the record, I think all 12 defendants agree that we attempted to take advantage of the 13 opportunity to ask limited questions today. But I don't know 14 that any of us would -- including myself, are finished our 15 examination. We've limited questions today. 16 MR. ODOM: And I'll say that subject to objection, 17 recognizing, that we wanted to give a thorough cross 18 examination for each of our clients. 19 MS. DINSDALE: Exactly. You didn't even get a chance to 20 start on one your clients. But those of us who did ask some 21 questions for our clients, we attempted to start, but we 22 didn't have enough time. 23 MR. RYAN: I also join that view. 24 MR. LINTZ: Absolutely.' 25 MR. ZERINGER: If I can, this is Brian Zeringer, I am -- I SEAK Professional Services, LLC pAGE,,^--OF--/_ 0b9731 b5-241 b-47c0-8a14-9c076c086180 p Page 186 l x have asked questions on behalf of my client Chicago Bridge 2 Iron as well as Crown Cork and Seal Company Inc. Another 3 member of my firm Barry Mesher was here on behalf of Crane | $ I 4 Co., and Sterling Fluids and Mr. Mesher at Mr. Dale's request 5 has absenced himself from the proceedings here, on this fourth 6 day of the deposition. I have stepped in for purposes of 7 monitoring the deposition, and being prepared to ask questions 8 on behalf of my client -- of our firms clients, Crane Co. and 9 Sterling Fluids. I have prepared during the course of the day 10 to ask questions on behalf of Crane Co. And am prepared to do I 11 so presently, as well as stay the night and be here tomorrow I 12 morning for purposes of asking those questions. Also the 13 record should reflect that Crane Co., is interested in cross 14 examining Mr. Dale in the perpetuation deposition, assuming 15 the parties here do reconvene at a later time. 16 Finally I would like the record -- I would like to have 17 marked as exhibits, to this deposition. The four exhibits 18 that I conferred with Mr. Dale about, specifically, whatever 19 the next numbers are, I would like to have marked the same 20 picture that was plaintiff's exhibit number 6, plaintiff's 21 exhibit number 12, and plaintiff's exhibit number 14, and 22 plaintiff's exhibit number 15, and have those marked in the $ 23 next in number sequence to this deposition. 24 MR. RIZZO: This is Steve Rizzo, just to go on the record, i ! 25 what I would like to do is point out that I don't believe the SEAK Professional Services, LLC .....ILc:__U r......---- l'" 0b9731 b5-241 b-47c0-8a14-9c076c086180 Page 187 I 1 perpetuation deposition is currently able to be used as | evidence in light of the fact that there's been no cross. And | I think that that's at least in part caused by the fact that 1 the discovery deposition, was extenuated for health reasons, | and based on the number of defense counsel. And so even that 1 I would say is subject to our reservation to object to that in f the even that the Plaintiff will attempt to use that, if we're :i not capable of finishing one or both of the (indiscernible). 9 MR. LINT2: Randy Lintz, I join on behalf of my client. 10 MS. MARTIN: I would like it to reflect that we all join 11 unless we specifically did not so instruct. 12 THE REPORTER: 4:02 13 (Off record) 14 4 : 02 15 | : 16 17 18 19 20 21 22 23 24 EXHIBIT- ^.. -- 25 "f -*--7 ?AGF_... /. SEAK Professional Services, LLC 0b9731 b5-241 b-47c0-8a14-9c076c086180 11:23 FAS 1 &.LU vQ 1 Copy Received 2 JAN 2 0 2006 3 WILLIAMS, KASTNER & GIBBS 4 TIME RECEIVED: &/<> THE HONORABLE SHARON ARMSTRONG 5 6 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 7 RANA FRENCH, as Personal Representative of the Estate of RALPH DALE, 8 Plaintiffs, 9 v, 10 SABERHAGEN HOLDINGS, INC.; et al,, 11 Defendant. 12 No. 05-2-09268-8 SEA ORDER BENYB4G DEFENDANT GENERAL ELECTRIC COMPANY'S AND SWENSON TECHNOLOGY, INC.'S MOTIONS TO SUPPRESS PERPETUATION AND DISCOVERY DEPOSITIONS 13 THIS MATTER having come on regularly before this court for hearing upon Defendant 14 General Electric Company's and Swenson Technology, Inc.'s Motions to Suppress Perpetuation 15 and Discovery Depositions, and the Court having heard the argument of counsel, reviewed the 16 motions and the records and files herein, including: 17 1. Defendant General Electric Company's and Swenson Technology, Inc.'s Motions 18 to Suppress Perpetuation and Discovery Depositions; 19 2. The Declaration of Jeffery M. Odom in Support of General Electric Company's Motions to Suppress Perpetuation and Discovery Depositions, and the exhibits attached thereto ORIGINAL ORDEREKYB*S=DEFNDANT general electric COMPANY'S AND SWENSON TECHNOLOGY, INC.'S MOTIONS TO SUPPRESS PERPETUATION AND DISCOVERY DXCEUPaiOAaSWIlTInIDOANl4S * 1 - Mellonle SnpffBimaponKOrteulK: EXHIBIT- 1DAGE.. Bergman & Frockt 703 Second avenue, Sum loi Seattle, wa 9SUM Telephone: 206.937,9il 0 Facsimile: 206.957.B5d 11:23 FAX 14) 004/005 1 3. The Declaration of Barbara L. Bollero in Support of Swenson Technology, Inc.'s, 2 Joinder in General Electric's Motion to Suppress Perpetuation and Discovery 3 Depositions and the exhibits attached thereto; 4 4. Plaintiffs' Response to General Electric Company's and Swenson Technology, 5 Inc.'s Motions to Suppress Perpetuation and Discovery Depositions; 6 5. The Declaration of Michelle B. Norton in Support of Plaintiffs' Response General 7 Electric Company's and Swenson Technology, Inc.'s Motions to Supress 8 Perpetuation and Discovery Depositions; 9 6. 10 7. ________________________________________ ; 11 8. 12 9. boA (ktp*JL P^il^b/hnr z^- 13 to* 14 tufyctfi. Tfetfoi), 15 IT IS ORDERED, ADJUDGED AND DECREED that General Electric Company's and 16 Swenson Technology, Inc.'s Motions to Suppress Perpetuation and Discovery Depositions is 17 lis'fd^D,---PT---------'mn' 18 DONE IN OPEN COURT this Day ofJanuary 2006. 19 iKJJM4a4' (bAMA^htA/^~ 20 ON. SHARON ARMSTRONG A 21 HtlkcL 22 $ JUwtviuyy tuA (hffyvfttn tAAMu'kjLjhvy jJ, I. A*A ft^ 23 kc-b Ar - 1M, . ORDER DENYING DEFENDANT GENERAL ELECTRIC COMPANY'S AND SWENSON TECHNOLOGY, INC.'S MOTIONS TO SUPPRESS PERPETUATION AND DISCOVERY DEPOSITIONS-2&\CllMU.VCUnii_p'lM. RUphMbtsRJ* MwWmm Suppra MBPMue_Dnlcr.dK Bergman & Frockt 7g? second avenue, suite lfioi SEATTLE, WA 98104 TELEPHONE: 206.937.9510 facsimile: 206.957.9J49 EXHIB T_ Z. 11:23 FAX WATERS;KRAUS 143577252; Q1/11/08 13:17; tetfax #143: 1 2 3 Presented by: 4 BERGMAN &FROCKT 5 6 Matthew P. Bergman, WSBA #20894 7 David S. Frockt, WSBA #28568 An Y. Brown, WSBA #29570 8 Counsel lor Plaintiffs 9 10 'Michelle B. Norton, Texas Bar # 24032914 n Attorney for Plaintiff Admitted Pro Hac Vice 12 Counsel for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 ojuiBRoernTNa dbfenoakt geneiiae electric COMPANY'S AND SWENSON TECHNOLOGY, INC.'S MOTIONS TO SUPPRESS PERPETUATION AND DISCOVERY DEPOSITIONS-3- . SSIEXHIBIT -7 PAGE Bergman &. Frockt 70] Sbcwo avmuo, Sum )6Qi WA 981M TBLKPKDWt 2C4.W7.9jIQ Facsimile; 204.557.95*9 1 2 3 4 5 6 7 8 SUPERIOR COURT FOR THE STATE OF WASHINGTON 9 FOR THE COUNTY OF KING 10 RANA FRENCH, as Personal Representative of 11 the Estate of RALPH DALE, Case No. 05-2-09268-8SEA 12 Plaintiff, 13 v. DECLARATION OF AND/OR MAILING DELIVERY 14 SABERHAGEN HOLDINGS, INC., et al., 15 Defendants. 16 I am employed by the law firm of Steven V. Rizzo, P.C. in Portland, Oregon. I am over 17 the age of eighteen years and not a party to the subject cause. My business address is Lincoln Place, Suite 350, 1620 SW Taylor Street, Portland, OR 97205. 18 On the date below, I caused to be served Supplemental Declaration of J. Michael 19 Mattingly in Support of Warren Pumps, LLC's Motion for Summary Judgment on all parties in this action by transmitting a true copy thereof in the following manner unless otherwise 20 indicated. 21 I. Via US Mail 22 23 Matthew Bergman Bergman & Frockt 24 The Hoge Building, Suite 1601 705 Second Avenue 25 Seattle, WA 98104 Counsel for Plaintiff 26 Michelle B. Norton Waters & Kraus, LLP 3219 McKinney Avenue Suite 3000 Dallas, TX 75204 Council for Plaintiff PAGE 1 - DECLARATION OF DELIVERY AND/OR MAILING Steven V. Rizzo, P.C, Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503) 229-1819 1 J. Conard Metcalf 2 Trine & Metcalf, PC 1435 Arapahoe Avenue 3 Boulder, CO 80302 Counsel for Plaintiff Timothy K, Thorson Carney, Badley, Smith & Spellman 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Counsel for Saberhagen Holdings, Inc. 4 5 II. Via E-mail 6 Barry Mesher Lane Powell Spears Lubersky James E. Home Kingman, Peabody, Pierson & Fitzharris, P.S. 7 1420 Fifth Avenue, Suite 4100 Seattle, WA 98101-2338 505 Madison Street, Suite 300 Seattle, WA 98104 8 Counsel for Chicago Bridge Company & Iron Counsel for IMO Industries 9 Kenneth Petty Williams, Kastner & Gibbs 10 Two Union Square, Suite 4100 601 Union Street 11 Seattle, WA 98101 12 Counsel for General Electric 13 I declare under penalty of perjury and under the laws of the State of Washington (RCW 9A.72.085) that the foregoing is true and correct. 14 15 Executed at Portland, Oregon, this & day of February, 2006. 16 I "......."J /"/ 17 \ C ; ^--4,, Rosanna Satitos \ 18 Litigation Assistant 19 20 21 22 23 24 25 26 PAGE 2 - DECLARATION OF DELIVERY AND/OR MAILING Steven V. Rizzo, P.C. Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819