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Asbestos Defense Expert William McCaffrey Excluded

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

deborah@clapperlaw.com

Steve@clapperlaw.com

NEMEROFF LAW FIRM

BY: RICK NEMEROFF, Attorney at Law

2626 Cole Avenue, Suite 450

Dallas, Texas 75204

281-378-5970

Ricknemeroff@nemerofflaw.com

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

barrettnaman@nemerofflaw.com

chrisnorris@nemerofflaw.com

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

Billarmstrong@armstrongetal.com

amber.craig@armstrongetal.com

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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

cliff.hutchinson@klgates.com

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

michele.barnes@klgates.com

daniel.fox@klgates.com

—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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PEGGY TSUJIMOTO, CSR #5229

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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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PEGGY TSUJIMOTO, CSR #5229

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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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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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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.

Cohen, Placitella, Roth

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