Asbestos Defense Expert William McCaffrey Excluded
By: Chris Placitella @ Jul 31, 2012
The defedants in asbestos cases will go to great lengths to defeat claims brought by deserving plaintiffs. One of the tactics commonly used is to attempt to blame other exposures with little basis in fact. Below is a transcript from a recent argument where a judge excluded the defense expert. the transcript speaks for itself.
IN THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF ALAMEDA
RENE C. DAVIDSON ALAMEDA COUNTY COURTHOUSE
ADMINISTRATION BUILDING
1221 OAK STREET, OAKLAND, CALIFORNIA
DEPARTMENT NUMBER 24
BEFORE THE HONORABLE FRANK ROESCH, JUDGE
—o0o—
BONNIE EVANS, Individually and as
Successor-in-Interest to Decedent,
DONALD EVANS; BILL EVANS, SANDY BISHOP,
SHIRLEY URIE,
Plaintiffs,
vs.
Case No. RG10-538490
ASBESTOS CORPORATION, LTD., et al.,
Defendants.
____________________________________/
REPORTER’S TRANSCRIPT OF PROCEEDINGS
MONDAY, JULY 23, 2012
TAKEN BEFORE: PEGGY TSUJIMOTO, CSR NO. 5229
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PEGGY TSUJIMOTO, CSR #5229
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A P P E A R A N C E S
FOR THE PLAINTIFFS:
CLAPPER, PATTI, SCHWEIZER & MASON
BY: STEVEN PATTI, Attorney at Law
DEBORAH F. SCHWEIZER, Attorney at Law
2330 Marinship Way, Suite 140
Sausalito, California 94965
415-332-4262
NEMEROFF LAW FIRM
BY: RICK NEMEROFF, Attorney at Law
2626 Cole Avenue, Suite 450
Dallas, Texas 75204
281-378-5970
NEMEROFF LAW FIRM
BY: BARRETT NAMAN, Attorney at Law
CHRIS NORRIS, Attorney at Law
55 Waugh Drive, Suite 850
Houston, Texas 77077
214-774-2258
FOR THE DEEFENDANT CROWN, CORK & SEAL COMPANY:
ARMSTRONG & ASSOCIATES
BY: WILLIAM H. ARMSTRONG, Attorney at Law
AMBER R. CRAIG, Attorney at Law
One Kaiser Plaza, Suite 625
Oakland, California 94612
510-433-1830
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PEGGY TSUJIMOTO, CSR #5229
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FOR THE DEFENDANT CRANE CO.:
KIRKPATRICK & LOCKHART, PRESTON, GATES, ELLIS, LLP
BY: CLIFTON T. HUTCHINSON, Attorney at Law
1717 Main Street, Suite 2800
Dallas, Texas 75201-7342
214-939-5444
KIRKPATRICK & LOCKHART, PRESTON, GATES, ELLIS, LLP
BY: MICHELE BARNES, Attorney at Law
DANIEL FOX, Attorney At Law
4 Embarcadero Center, Suite 1200
San Francisco, California 94111
415-882-8200
—o0o—
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PEGGY TSUJIMOTO, CSR #5229
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about whether the law applies right now. And if I determine
that the law doesn’t apply, then the motion will be granted
because it makes the evidence — the proposed evidence
irrelevant. I can see no good reason to apply the Pennsylvania
law. 13 will be granted then.
Number 14.
MR. NEMEROFF: Our motion to strike and exclude a
Thomas — if I may, Your Honor, this is an interesting motion
and it’s interesting because there are two different defendants
who have listed the same witness. Crown, Cork has taken this
witness to extreme position as an expert where there is no
expertise to be had. There is no foundation to it. This isn’t
a wait until we get to cross and we could figure it out.
That’s Crown, Cork.
Crane Company, by contrast, has been very honest and
very forthright in identifying the limitations of this witness.
I know that because I have the designations that Crane Company
filed for this witness, Thomas McCaffery, and I have the
witness disclosure from Crown, Cork.
Crane Company admits this witness is simply qualified
to locate archives and records. That’s what Crane Company
says. He can research personnel records. He can get the
records from a location. It would be like Mr. Norris, who
spent a lot of time researching law, is qualified in finding
cases and locating things. That’s the limit of this witness’s
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PEGGY TSUJIMOTO, CSR #5229
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qualifications and expertise, as Crane Company rightly
identifies him.
Crown, Cork, however, does something completely
different with that information that this witness locates.
What Crown, Cork has this witness do, with no expertise
whatsoever, with no qualifications whatsoever, Crown, Cork has
this witness interpret documents, tell us what they mean, tell
us what Mundet was thinking, tell us what the navy intended,
tell us what the navy wanted to do. This is what this witness
does. Instead of saying I’ve found these documents and I
authenticate them, which Crane Company would have this witness
do and we have no quarrel with that.
He found them in the archives and wherever he found
them. Crown, Cork wants this witness to then take these
documents that he simply found and tell a story about them. He
wants to impute that because I found a record, I can tell you
that Mundet did not sell their products to the U.S. navy. How
do you know that? Well, I know that if they had to do X, Y,
and Z, they didn’t really care to sell it because they’re not
on the list and they didn’t go to this meeting and they didn’t
bother to show up.
It boggles the mind how he takes information which is
factual in nature, interprets it with no background whatsoever.
So who is this Thomas McCaffery? He went to the Merchant
Maritime Academy. He spent maybe a couple of months on board a
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PEGGY TSUJIMOTO, CSR #5229
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ship. He is not in the navy. He is not a navy seaman as a
machinist the way Mr. Evans was. He doesn’t have an
engineering background to talk about the machinery equipment
used on board vessels. He is a researcher. He is an
archivist.
THE COURT: Don’t you graduate from the Maritime
Academy with an engineering degree?
MR. NEMEROFF: No, Your Honor. In fact, there are two
ways you can go. His was not in engineering. He winds up
going the track that is MBA bound, not engineering bound. He
admits that. This isn’t a question of whether he is or he
isn’t. What he has done is he has become a jack-of-all-trades
witness.
So I asked him in his deposition, for example, “What is
the source of your opinion for Mundet not sending their
products across country to the navy? My years of experience in
research. Well, tell me what documents. My years of
experience in research. Well, point me to a document. My
years of experience in research.”
It’s like this circular logic. I would, quite frankly,
encourage the Court to read the deposition of Mr. McCaffery
because it’s a 45-minute exercise in total futility and
frustration to get an answer with any substantive response.
It’s continually back to my years of experience in research are
the basis for every answer, but when probed, what specific
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PEGGY TSUJIMOTO, CSR #5229
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documents do you rely upon and he refers back to his years of
experience in research.
So my request, Your Honor, is quite simple. We don’t
necessarily have to exclude him for Crane Company because Crane
Company, quite frankly, did nothing wrong with respect to this
witness. They’ve listed him as essentially a person who will
authenticate some documents.
THE COURT: So you’re reducing the import of your
motion to be one where he can be called but only to identify
documents that he can authenticate?
MR. NEMEROFF: Which we will probably stipulate to that
authenticity of them and there will be no need for this witness
at all.
THE COURT: How is his testimony authenticating
documents different from your employees’ testimony
authenticating ads in magazines?
MR. NEMEROFF: Not much, Your Honor. That’s exactly my
point. If I find something — if an employee finds something
and says I found it where I expected to find it; it’s an
authenticate document, unless there is a challenge to the
authenticity of something, a witness is not necessarily
necessary.
I don’t think I have a problem with the authentication
of the documents that we say this witness found. I’m sure they
were found in the naval archives where he found them. I tend,
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as a lawyer, not to really fuss about authentication unless
there is a good reason to do so. Where I fuss is where
McCaffery takes a step outside of researcher and archivist and
becomes a storyteller and an interpreter and a diviner of
meaning and intention.
At that point, Your Honor, this witness with no
training or background — it’s not as if he ever published in
this area. It’s not as if he has ever done work in this area
that we can test. And I’ll go a step even further. What I’ve
come to learn is that this witness is now — for companies that
he never worked for, he gets designated as a corporate
representative where they basically feed him documents to
become a storyteller for other companies. That’s what he is.
You give him a bunch of documents and then he’ll tell a
story for you. Whether he’s qualified about the underlying
facts or not are completely secondary. Crown, Cork has done
that in this case. They have created a storyteller with no
foundation; whereas, Crane Company appears to only want to use
him to authenticate documents, which I truly believe is the
limit and extent of this witness’s expertise, to the extent
it’s an expert witness.
So, Your Honor, if we’re going to go beyond Crane
Company’s designation and allow him to, and I quote from Crown,
Cork, “He is going to” — first of all, he can’t testify about
state of the art and knowledge of the U.S. navy because that’s
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PEGGY TSUJIMOTO, CSR #5229
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out.
MS. BARNES: It’s not out. It’s still relevant to
government contract.
MR. NEMEROFF: Well, not for your witness, for
McCaffery. That’s Crown, Cork saying. He has never shown any
expert to be able to interpret documents or interpret articles
and what the navy knows. There is another problem we have, and
that is, there are federal regulations which actually apply to
a witness testifying as to the customs and practices of the
U.S. Navy and you need to get permission from the government to
do so. There has been no such permission granted to this
witness.
THE COURT: There are no state secrets here, are there?
MR. NEMEROFF: It has nothing to do with state secrets.
After you’ve left the navy, if you are going to testify —
THE COURT: He never worked for the navy.
MR. NEMEROFF: He was in the navy for a little bit,
like six months as part of his training, but if he is going to
testify about what the navy did and why they did it and start
testifying about navy procedures, there is actually government
regulations that require you to get permission from the
government.
And here’s what is interesting. While this witness —
and I asked him, “Have you gotten this permission from the
government?” His response was, “I don’t need it,” and I said,
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PEGGY TSUJIMOTO, CSR #5229
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“Why not?”
Well, as you know, somebody else in my company got a
letter from the judge advocate general saying he could testify
to it. What’s interesting about that statement is a
recognition that a letter from the JAG is necessary but not for
him. He doesn’t have that letter. So we have this entire
mishigas — I’ll try to spell that for you at some point — of
stuff that this witness is going to pretend to be an expert in,
none of which has any basis, and now he’s going to tell a story
about what the navy knew, when his experience was sometime in
the 1970s, some 20-plus years after Mr. Evans left or was off
the ship.
Your Honor, this witness is way beyond his scope of
expertise and his ability to testify. I would simply ask that
he be limited to exactly what Crane Company says he should be
able to testify to, nothing more or less. Crown, Cork has gone
way too far with this witness.
THE COURT: Let’s start on what might be the easier
side.
Ms. Barnes, do you have a position on this motion? Are
you intending to use this witness for more than authentication
of documents?
MS. BARNES: Yes, Your Honor, we do. I have the
designation here. The reason that the designation of
Mr. McCaffery is more limited in Crane Co.’s designation is
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PEGGY TSUJIMOTO, CSR #5229
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because Crane Co. has other experts who will address issues
such as the navy knowledge, the navy procurement process. The
purpose for Mr. McCaffery’s testimony is that he is an
archivist. He reviewed all of the archive records related to
the products that were aboard navy ships. And in his review,
he has looked at the qualified products list that
Mr. Hutchinson referenced earlier, and that’s the list of
products which are approved by the navy for use on navy
vessels.
So what he did is — those change over time. So he
went through the historical records to see what gasket
materials were approved by the navy to be used on navy ships.
And in his research, he determined that cranite was not on the
QPL. So the purpose for his testimony is to talk about this
research that he has done, what he has done as an archivist and
give his ultimate opinion that because of the research that he
has done, because of the qualified products list that he has
reviewed that cranite was not on the qualified product list for
use as a gasket material in the navy. That is the scope of his
testimony as to Crane Co.
THE COURT: He could probably truthfully testify that,
just as an example, cranite was not on the lists that he looked
at, but, my goodness, there must be zillions of lists. Is he
going to testify that he looked at every single purchase order
for the navy during the Korean War?
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PEGGY TSUJIMOTO, CSR #5229
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MS. BARNES: No.
THE COURT: Then how can he make that conclusion?
MS. BARNES: A purchase order is different than a
qualified products list. So what happened is the navy goes
through and they identify specific products. They test those
products. They determine whether those products — and so
there is a QPL enacted 1942 and it lists all of the
manufacturers whose gaskets are approved for use on navy ships.
That might be updated in 1942 and might be updated in 1953.
And what happens, it says QPL number, whatever the number is,
and then there is version A, B, C, D. So he can track when the
changes occurred to those and all of the QPLs that relate to
specific types of products.
It doesn’t have to do with purchase orders. It has to
do with what the navy had as a list of what could be purchased.
MR. HUTCHINSON: You have to be approved, Your Honor,
before. When the supply officer goes and says I need some
gaskets for this aircraft carrier, he has to go to the QPL and
say here are ten companies that I can buy from, period. And
the point is Crane Co. wasn’t on that list. They weren’t an
approved supplier.
THE COURT: Then he can identify the document and you
can point that out. Why do you need a witness to tell you that
that’s a conclusion?
MS. BARNES: He’s not limited to his testimony of
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PEGGY TSUJIMOTO, CSR #5229
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authenticating the documents, though. He needs to be able to
describe what the process is of reviewing the QPLs and the
history of the QPL and how it came about and why he was looking
for what he was looking for. It all goes to why the documents
are relevant. And his ultimate conclusion is I’ve looked and
this is everything I’ve found and based upon what I would have
expected to have found, that cranite is not on the QPL and
therefore would not have been approved for sale to the United
States Navy.
MR. NEMEROFF: Your Honor, I’m looking at this
designation from Crane Company and there are two things that
strike me right off the bat. First, the word cranite never
appears in his designation and, more importantly, the words QPL
or qualified products list never appear in the Crane Company
designations.
What they conclude for Crane Company is, “Mr. McCaffery
will conduct naval research in this case regarding the various
ships aboard which plaintiff served and will authenticate
documents pertaining to such research.”
I agree. That is what he does.
MS. BARNES: If you look at the sentence before that,
you’re right —
MR. NEMEROFF: Counsel, I’m not done.
THE COURT: Can I find that document in this?
MR. NEMEROFF: We did not attach it, Your Honor. If I
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PEGGY TSUJIMOTO, CSR #5229
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may approach.
THE COURT: Would you do me the favor of showing
Ms. Barnes first.
MS. BARNES: That is not the document. Oh, yes, it is.
MR. NEMEROFF: If I may approach, Your Honor.
THE COURT: Sure.
MS. BARNES: Your Honor, I would direct your attention
to line 17 which references the qualified products list.
THE COURT: With all due respect, Ms. Barnes, this
doesn’t say he is qualified to interpret those documents. It
just says he has the expertise to research U.S. Navy personnel
records, navy military specifications, qualified products list,
and related records. So he can research those.
MS. BARNES: Relevant to this —
THE COURT: Does that mean he can tell us what they
mean within a broader framework?
MS. BARNES: His expertise to research them necessarily
entails what his knowledge is with respect to what they mean.
I mean, if he’s not qualified to research it, then — it all
goes to his background.
THE COURT: Mr. Armstrong.
MR. ARMSTRONG: Yes, Your Honor. I’m not sure if you
would have received the opposition we submitted on Friday to
this late motion, but we did address —
THE COURT: I have not seen it. I saw Crane’s
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PEGGY TSUJIMOTO, CSR #5229
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opposition. I do not have it on my desk here.
MR. ARMSTRONG: Let me summarize then the first
question that was raised in the motion.
THE COURT: Hold on a second. I take that back. It is
here. It was hiding.
MR. ARMSTRONG: All right.
THE COURT: That means I’ve looked at it.
MR. ARMSTRONG: Okay. I don’t think there is any real
quarrel that Mr. McCaffery is an expert. There may be some
dispute about the extent of his expertise, but he did graduate
from the Maritime Academy. And although he did go through the
deck department rather than the engineering department, even
deck officers have to have some engineering know-how.
He did serve for a brief period on active duty in the
navy. He has been a reserve naval officer for, I think,
20 years or so. In his — he also served in the merchant
marine and has a civilian career in marine logistics and
transportation.
The archival aspects of his work have come up later in
his career, and I think the point of expertise in that area
that is key here was suggested by your question a moment ago.
There must be lots of these QPLs. There are —
THE COURT: I said purchase orders. If you’re going to
demonstrate that we never bought any of these, you have to look
at every purchase order.
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PEGGY TSUJIMOTO, CSR #5229
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MR. ARMSTRONG: Correct, if that’s the route you want
to go, but as was said a moment ago, one of the things that
Mr. McCaffery can talk to within his area of expertise is the
process by which — and this is all set forth in navy
regulations and so on. So it’s clearly an area that most
jurors would be unfamiliar with and the expert would be of aid
to the jury to say the way the navy does this is they set up a
scheme by which if you want to sell your gaskets or thermal
insulation or whatever it is to the navy, you have to submit
your products to the navy testing operation and have them do
some testing to satisfy themselves that your product is
satisfactory.
Then you can get on the qualified product list. That
means you’re allowed to bid. It doesn’t mean you’re
necessarily going to sell anything. You have to go through a
bidding process and the navy has to select you for any
particular purchase that they happen to be making.
Mr. McCaffery has been through these qualified products
lists so that he feels he can say, “I’ve looked at them all” —
from the standpoint of the Mundet products, he will say the
first time that any Mundet thermal insulation product is on any
of the qualified product lists is in, I believe it was, late
1951.
And the other area of his expertise in document
interpretation is the navy categorized different types of
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PEGGY TSUJIMOTO, CSR #5229
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insulation depending on the temperature requirements and so on.
So they assigned a category. At one point, it was an
alphabetical A, B, C, and another time it was 1, 2, 3. What
Mr. McCaffery can do and show you on the documents is, okay,
Mundet was approved for — I can’t remember the category
numbers now, but let’s just say it was category 1.
And then he can take that and look at the documentation
for the two overhauls that were conducted on the ship in
question here and look at the documentation. What was the navy
going to do on these overhauls? And those documents, he can
show you, describe what jobs required what kind of insulation.
And he can go through and say, “All right, this job they needed
category 3 insulation,” but Mundet was only approved for
category 1. So that job would not have involved any use of the
Mundet product because they weren’t on the list.
Here is the job that called for the category for which
Mundet was on the list. And so he can walk anyone through
these categories. It’s not a storytelling exercise. If you
will, it’s — it’s not really inscription, but he knows these
categories and he can say this is category 1 and they were
looking for category 3 and that’s not a match, if you will.
THE COURT: How long is the document? How many pages?
MR. ARMSTRONG: QPLs?
THE COURT: That describes what sort of work needed to
be done when the ship came in.
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PEGGY TSUJIMOTO, CSR #5229
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MR. ARMSTRONG: On the overhauls?
THE COURT: Yes.
MR. ARMSTRONG: I would be speculating, Your Honor. I
haven’t seen the whole thing, but it’s a little booklet of
information that one has to go through. But again —
THE COURT: Ship is an awfully big item.
MR. ARMSTRONG: It really depends on how much —
THE COURT: 5,000 pages, I would think.
MR. ARMSTRONG: It depends on how much they were doing,
but again, the focus obviously — we’re not interested in
everything they were doing. The focus is on items that might
have required thermal insulation products. So that’s the
nature of his interpretive material.
Mr. Nemeroff is worried about some extraneous things
that I agree. Mr. McCaffery read some other documents and made
his interpretation of them. I’m not planning to use him for
that purpose. The other item for which I think Mr. Nemeroff
touched upon was Mr. McCaffery’s view that because the overhaul
occurred in mid 1952 out here and Mundet’s plant was in New
Jersey, given the normal time lag between when somebody would
be able to bid on a project and get through the process, the
sort of a red tape factor, he opined that it was unlikely that
a company that just went on the qualified product list in late
1951 would have had an opportunity to get on the track, if you
will, and get a successful bid and get their product on this
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PEGGY TSUJIMOTO, CSR #5229
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particular overhaul seven or eight months later, whatever it
was.
Now, the other factor that he can testify to from his
expertise, if not common sense, is there would have been a
shipping cost associated with sending a product from New Jersey
to California. And in order to be a successful bidder, the New
Jersey based company would have somehow had to figure out how
to underbid the various companies that were out here. I mean,
the manufacturing plants were in California and they were on
the qualified products list and would have been competitors for
this particular project. So that’s basically his — the
purposes for which we would ask him to testify.
And I guess the final point, this reference to this
regulation, in our papers we cited the actual regulation and —
THE COURT: You gave an example.
MR. ARMSTRONG: Gave an example.
THE COURT: Copy of a letter.
MR. ARMSTRONG: Also pointed out that to the extent
this regulation had the effect that Mr. Nemeroff so
passionately advocates, it would also seem to apply to the
decedent’s testimony about his work in the navy, but the real
bottom line of all of this is there’s a case that basically
says private — this regulation was for the benefit of the
Department of Navy, not for private litigants, and there’s no
private right of action or anything to exclude testimony, and
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the JAG letter to which Mr. Nemeroff refers is a letter
actually to Mr. McCaffery’s wife who works with him, and the
JAG letter says not you are permitted, but rather you do not
need permission; this regulation is not intended to cover the
kind of thing you’re doing.
That’s the nub and substance of it. As I said, there
is a case that specifically makes clear this regulatory scheme
is not something that private litigants can take advantage of
to try and keep testimony out. So I’ll just kind of leave it
at that.
THE COURT: What is the underpinning of McCaffery’s
knowledge on what kind of repair might be necessary in what
room of whatever boiler room of the ship?
MR. ARMSTRONG: You mean with regard to this particular
overhaul?
THE COURT: How does he know what kind of insulation
goes into boiler room number 1?
MR. ARMSTRONG: Because that’s what the overhaul
documentation specifies.
THE COURT: So you don’t know —
MR. ARMSTRONG: He has got the document. The only
thing he —
THE COURT: So you don’t need him to say that overhaul
of boiler room number 1 calls for number 3 insulation because
the document itself says so.
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MR. ARMSTRONG: That is the underpinning, but I do
think if you just have the document, then you’re either going
to have to have the lawyers tell the jury what it all means or
throw the documents at the jury and hope they can figure it
out.
I think this witness, as someone who is an expert in
the naval nomenclature and the documentation, can say, “Okay,
you see here it says Category 3. What that category is has
these characteristics, temperature requirements or whatever,
and the qualified product list that Mundet was on was category
1.”
THE COURT: How does he know what the temperature
requirements are?
MR. ARMSTRONG: Because the categories are specified.
The military says, okay, category 1 is good up to, I think it
is, 500 degrees. And then category 2 is what you need if
you’re going between 500 and a thousand and so on.
THE COURT: What I’m concerned about is that you have
— I think from the face of it, I’m not very sure what
McCaffery’s basis for knowledge is. Merely being researcher
and looking at documents doesn’t give you a perspective on how
to evaluate those documents.
I’m not sure I’ve heard that there is a base of
knowledge for Mr. McCaffery that can support the kinds of
evaluations of documents that you would like to put on him.
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MR. ARMSTRONG: I’m not sure that he is doing —
evaluation may be too broad a term. I would rather say that he
is able to interpret things like navy nomenclature which has —
there’s documentation that explains what that is, but I think
to have an expert witness say, “I have reviewed the
documentation. Category 3” — I’m not sure about these numbers
myself, but let’s just use that.
THE COURT: We’re speaking in the abstract.
MR. ARMSTRONG: Right. He can say, “I have researched
this. I know category 3 is such and such. Here is the
document that tells you that.” He can help you put the pieces
of the puzzle together. And then the other part of it, of
course, is to say, “And Mundet was only on the list for
category 1, so that’s the one we would be looking for and here
is where I have found it,” and they have the — he has produced
the entire documentation. So if the plaintiff wants to go
through or have somebody on their behalf go through and say he
missed this one or he got this wrong, it’s there, but to give
the jury just — as I say, I don’t know how long it is, but
it’s a pretty big piece of document.
THE COURT: I can’t imagine that it would be short.
MR. ARMSTRONG: No. The idea is that he’s going to be
able to take that overhaul specification with the indication
that he’s not making this up. He can take us through and say
here’s where the items are that call for insulation and here’s
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PEGGY TSUJIMOTO, CSR #5229
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the item that fits the QPL for Mundet and here’s what that
involved, and he can basically walk us through those documents,
more importantly, walk the jury through the documents and show
them the highlights that are important to the case without
getting lost in all of the details about whatever else they
might have been doing on that overhaul which, of course, would
have been extensive but have nothing to do with what we’re here
to discuss.
So I think — as far as his expertise, again I come
back to the fact that he has years in the merchant marine,
years at the maritime academy and some active duty navy
service, along with 20 years or more of reserve duty. He is
certainly qualified to talk about navy process here. “Here’s
what category 3 means. I’ve been there. I know where the
regulations are and I can show them to you and here it is.”
THE COURT: When you say he has been there, you mean he
has been at the archive?
MR. ARMSTRONG: He has been on the ship — he has been
in the navy and on the ships and in the archives. Mostly this
is a documentary issue. And the only interpretive matter is
when you look at the document and it says, “We’re going to do
such and such a job in boiler room number 1 or whatever it
might be and we’re going to use such and such an amount of
thermal insulation category 3.”
He can explain what category 3 is and whether or not
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that relates to the product that has been approved on a
qualified product list for Mundet. Obviously, somebody is on a
qualified product list for that product.
THE COURT: All right. Final words, Mr. Nemeroff.
MR. NEMEROFF: Yes, Your Honor. I will go to my brief
that we filed in opposition to strike this witness. I can’t
call him an expert in anything other than perhaps going to the
library. At page 5 of our motion to exclude, we cite some
testimony from Mr. McCaffery that speaks directly to his
qualifications that the Court, I think, hit upon.
It’s not just a matter of reading some books. What are
the foundations of his experience? He was asked in a prior
deposition that was taken — Exhibit E to our papers. “And you
are not purporting to be an expert on United States navy ship
and submarine maintenance, are you?” This was taken in another
case where ship and submarine maintenance was the question.
His answer is very telling. “Well, I have been involved in the
maintenance of navy ships, but the point here is that I’m an
expert on the research of those records.”
His total time — I think counsel perhaps misspoke,
either that or overembellished Mr. McCaffery’s experience on
board ships. It was a couple of months that he was on board
any naval vessel, just a couple of months. It was in the
1970s, I believe it was, post OSHA when things were done very
differently.
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Mr. McCaffery is going to testify about the
qualified —
THE COURT: Post OSHA?
MR. NEMEROFF: Yes, that’s when he was on board ships.
THE COURT: After OSHA?
MR. NEMEROFF: Yes.
THE COURT: And this was pre OSHA.
MR. NEMEROFF: This case is pre OSHA. Mr. McCaffery’s
only experience on board a naval vessel, for the very brief
period of time that it was, was after things had changed
dramatically.
THE COURT: All right.
MR. NEMEROFF: That opinion I asked Mr. McCaffery in
his deposition. The qualified product lists require no
expertise. You put the list in front of them. The jury either
sees the name or not. He is not qualified to tell the jury how
long it takes to get from one part of the country to the other
with pipe covering. I asked him what basis do you have. He
says, well, it’s just common sense. Well, if it’s just common
sense, we don’t need an expert to tell the jury about that.
He says he’s an expert in navy contracting. Can’t give
me any support for that. I asked him about his — what
particular products had to be used on board the vessels during
the overhauls. He can’t give me any qualifications for that,
other than to refer back to a 1943 schematic of the original
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PEGGY TSUJIMOTO, CSR #5229
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construction of the ship and says, well, that must be
applicable to what happened at the overhaul in 1951 and 1952.
He has no idea other than whatever document he found.
He continues to make these things up as he goes through
them. I asked him about his opinion on approvals, and he goes
so far as to say, “Well, Mundet could not have been there
because the packaging of the Mundet product didn’t meet naval
approval.” So I asked him pointblank, “Sir, have you ever seen
the Mundet packaging? Well, no, but I know it could not” —
it’s like every answer to every question, when I asked what’s
your support, it’s either I haven’t seen documents or it’s
based upon my years of research. It’s never based upon his
personal experience.
So when the Court asks, what experience does he have in
an engine room, on an overhaul, on this nomenclature, there is
no foundation. Everything this witness learned he learned from
reading documents in the last couple of years. There is no
expertise. If that were the expertise required, with all due
respect, I could pick any one in this courtroom, send them to
the naval archives and then qualify them as an expert in all
the things that Crown, Cork wants this guy to be an expert in.
It requires no background. It requires no experience. It
simply requires a library card and the ability to write what
you want and read what they send you. That’s the extent of his
expertise, Your Honor. Everything else he makes up.
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Our papers demonstrate unequivocally that is what this
witness is. He is created for the purpose of telling the story
that has absolutely no basis in fact. It’s pure fiction. That
is what he does. He takes documents and says what he believes
them to mean. The best evidence rule does not allow that, Your
Honor.
MR. ARMSTRONG: Mr. Nemeroff keeps saying he makes it
up. He makes it up.
MR. NEMEROFF: He does.
MR. ARMSTRONG: That is an absolute boldface lie.
Mr. McCaffery says here is a piece of paper that is a
specification. It says thermal insulation category 3.
Mr. Nemeroff would love it if we just said, well, we’ve got to
show that to the jury, and then he would say, well, Crown
didn’t explain what category 3 was and nobody knows.
That’s why you have an expert. And you don’t have to
sail on a navy ship for 20 years to learn what a category 3 is.
The way you learn about what the navy means by category 3 is
you go to some manual or some document and you look it up.
Could anybody do it? I guess. Could anybody go to the
maritime academy? Probably if they get the grades and all of
that. But once you go to the maritime academy, the idea is
that you know something you didn’t know before you went. Could
anybody join the navy? No, not anybody but a lot of people do.
And once they have served, they know something they didn’t know
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PEGGY TSUJIMOTO, CSR #5229
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before they did.
Mr. McCaffery brings to the table an expertise in the
navy contracting procedures. It’s limited but important. He
can explain how the navy uses the qualified products list and
what that process involves and the fact that the navy can’t buy
products that aren’t on the qualified products list. He can
describe what the qualified products lists say; that is, whose
products are on the list for what type of materials that are
germane to this case. And he can look at the overhaul records
for this particular ship for the two overhauls that were in
question here from a time frame perspective, and again pointing
to the document. He is not the guy you’re going — he doesn’t
pretend to be the guy that is going to actually supervise a
repair.
He can read the documents about the repair and explain,
okay, they called for this type of thermal insulation, and one
thing he knows as a former active duty navy officer and a
reserve officer is the practice was, if they built the ship to
have high temperature insulation on this line, then when they
do maintenance on that line, they’re going to probably — they
are going to replace that with comparable high temperature
insulation and so on.
This is not the subject of lay opinion. This is
something that you have to know something about in order to
interpret. On the other hand, it’s not manufactured testimony.
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When you have somebody who can say, “I have looked at the
document. Here’s what it says. It’s in black and white, and
here’s what it means, by the way, for the parts that are
categories and codes,” that the average person would not
understand.
So I think his ability to come and explain to the jury
“Here’s what it means” is really the classic use of an expert
witness. And if, by chance, there is some area that we get
into that goes too far afield, I’m sure we’ll hear an objection
and Your Honor can rule on that. And if Mr. Nemeroff finds an
area where Mr. McCaffery has no support for his view, I guess
that does go to the credibility, but I think the general — in
general, Mr. McCaffery’s utility in terms of helping the jury
is walking them through this documentation of one other aspect.
Mr. Nemeroff touched on the identification of the
packaging on the dock. Mr. McCaffery — among other
regulations that he’s familiar with are the regulations the
navy has about what you can put on the packaging of materials
that you sell to the navy. And one of the things that is
restricted by those regulations is what kind of logos and
advertising-type material you can put on those government
packages.
I think — I’m not sure exactly what Mr. Nemeroff was
referring to, but I believe he was referring to Mr. McCaffery’s
view that the navy would not typically allow any manufacturer
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to use some large logo as, in this instance, a big M on a
package that was going to the military. They have their
requirements. But the point is that he has developed this
expertise in navy regulations that is key to the contracting
aspects of the case.
THE COURT: All right. It would appear to me that the
plaintiff stipulates that McCaffery can testify about the
authenticity of documents that he has researched from the naval
archives, wherever they might be.
The remainder of the motion I will take under
submission and I’ll let you know. I am going to — I didn’t
read his deposition and I will read that before I make a
determination.
MR. NEMEROFF: Thank you.
THE COURT: Moving on to number 15, exclude the
testimony of Captain Charles Wasson.
MR. NEMEROFF: Yes, Your Honor.
THE COURT: Was there any opposition filed to this
motion?
MR. NEMEROFF: The only opposition I saw was Crane
Company’s.
MR. ARMSTRONG: Your Honor, we did not have an
opportunity to prepare a written opposition, but we do oppose
it.
THE COURT: Go ahead, Mr. Nemeroff, make your argument.
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MR. ARMSTRONG: Your Honor, may I suggest this motion
might be deferred, given the rulings this morning on number 16.
I frankly am not sure if Captain Wasson’s testimony would be
permitted under the new theory and if I can just defer until I
have —
MR. NEMEROFF: Fine.
MR. ARMSTRONG: If I am going to bring him, I will give
everybody plenty of advance warning. We can resuscitate this
motion, if necessary.
THE COURT: All right. So that —
MR. NEMEROFF: I don’t have a problem with that, Your
Honor, because I think it dovetails actually after
Mr. McCaffery.
THE COURT: We are going to reserve this motion.
With that, we have concluded the plaintiffs’ motions in
limine. Are there any others that have come to mind,
Mr. Nemeroff?
MR. NEMEROFF: Nothing, Your Honor, that — no.
THE COURT: All right. We will take a break.
(Recess taken from 2:23 to 2:40)
MR. HUTCHINSON: May I ask something of Your Honor.
You were talking about —
THE COURT: Let’s first do the obligatory. If the
Court would please come to order. Everybody that was here
before the break is still here.
