1 1 STATES DISTRICT COURT 2 NORTHERN DISTRICT OF GEORGIA 3 CASE NO. 4:11-CV-50-TWT 4 FIELDTURF V. TENCATE 5 TUESDAY, APRIL 23, 2014 6 ________________________________________________________ 7 8 D I S C L A I M E R 9 10 THIS REALTIME TEXT IS UNEDITED/UNCERTIFIED AND WILL 11 CONTAIN UNTRANSLATED STENOGRAPHIC SYMBOLS, OCCASIONAL REPORTER 12 NOTES, MISSPELLED PROPER NAMES, AND/OR NONSENSICAL WORD 13 COMBINATIONS. ALL SUCH ENTRIES WILL BE CORRECTED ON THE 14 OFFICIAL CERTIFIED TRANSCRIPT. 15 16 THIS REALTIME TEXT IS FOR THE PURPOSE OF AUGMENTING 17 COUNSEL'S NOTES AND SHALL NOT BE RECOGNIZED AS AN OFFICIAL 18 TRANSCRIPT, NOR SHALL IT BE CITED OR USED IN ANY WAY OR AT ANY 19 TIME TO REBUT OR CONTRADICT THE OFFICIAL CERTIFIED TRANSCRIPT 20 OF THE PROCEEDINGS, PURSUANT TO APPLICABLE COURT RULES. 21 22 23 24 25 2 1 THE COURT: GOOD MORNING, COUNSEL. 2 MR. KAPLAN: MORNING, YOUR HONOR. 3 MR. CREMER: MORNING, YOUR HONOR. 4 THE COURT: WE HAD A JUROR HAD A TREE FALL ON HER 5 HOUSE LAST NIGHT, AND SHE STAYED HOME TO ATTEND TO THAT, AND I 6 HAVE EXCUSED HER. ANYBODY HAVE A PROBLEM WITH THAT? 7 MR. CREMER: NO, YOUR HONOR. 8 MR. KAPLAN: NO, YOUR HONOR. 9 THE COURT: IT'S JUROR CHEVER, NUMBER 10 ON YOUR 10 LIST. 11 READY, MR. CREMER? 12 MR. CREMER: YES, YOUR HONOR. 13 THE COURT: WE'RE READY FOR THE JURY. 14 (JURY ENTERED THE COURTROOM.) 15 THE COURT: GOOD MORNING, LADIES AND GENTLEMEN. 16 THANK YOU FOR ALL BEING HERE ON TIME THIS MORNING. 17 ALL RIGHT, MR. CREMER. 18 MR. CREMER: THANK YOU, YOUR HONOR. 19 - - - 20 CROSS-EXAMINATION (CONTINUED) 21 BY MR. CREMER: 22 Q. MORNING, MR. DALIERE. 23 A. MORNING, MR. CREMER. 24 Q. WE ARE GOING TO GO BACK TO THE EXHIBIT THAT WE WERE 25 DISCUSSING YESTERDAY. THAT'S DEFENDANT'S 725. DO YOU HAVE 3 1 THAT IN FRONT OF YOU SIR? 2 A. YES, I DO. 3 Q. NOW, 725 IS A DOCUMENT IF YOU GO TO THE FIRST FULL PAGE OF 4 IT WHICH IS DISCUSSION OF WARRANTY CLAIMS, REPAIR COSTS. IT'S 5 DATED AUGUST 10, 2009? 6 A. YES. 7 Q. THIS HAS BEEN ADMITTED IN EVIDENCE, I BELIEVE -- NO. 8 YOUR HONOR, THIS EXHIBIT HAS BEEN OFFERED WITH NO 9 OBJECTION. WE OFFER IT INTO EVIDENCE. 10 THE COURT: ADMITTED WITHOUT OBJECTION. 11 BY MR. CREMER: 12 Q. IF WE COULD HAVE THE FIRST FULL PAGE. I WANT TO SHOW THE 13 COVER PAGE OF THE DOCUMENT. I'M SORRY. THAT WOULD BE PAGE 2. 14 SO HERE WE HAVE THE CAPTION OF THIS REPORT DISCUSSION OF 15 WARRANTY CLAIMS AND THERE'S THE DATE. SEE THAT, SIR? 16 A. YES, I DO. 17 Q. IS THIS THE REPORT YOU ARE REFERRING TO IN YOUR DIRECT 18 EXAMINATION THAT YOU HAD COMMISSIONED WHILE YOU WERE A 19 CONSULTANT FOR THE COMPANY? 20 A. THAT I WAS COMMISSIONED TO DO AS A CONSULTANT. BUT YES. 21 Q. SO YOU PUT TOGETHER THIS REPORT? 22 A. YES, I DID. 23 Q. AND I'D LIKE TO DISCUSS SEVERAL PORTIONS OF THE REPORT AND 24 I SEE THAT THE REPORT HAS PAGE NUMBERS AND I'LL REFER TO THOSE 25 TO HELP DIRECT YOU TO THE PORTIONS I WANT TO GO TO? 4 1 A. OKAY. 2 Q. ALL RIGHT. LET'S START WITH PAGE 6. 3 A. JUST FOR CLARITY, MR. CREMER, WHEN WE TALK TO THE PAGE 4 NUMBER ARE WE TALKING TO THE PAGE NUMBERS OF THE PRESENTATION 5 OR THE PAGE NUMBERS AT THE BOTTOM OF THE EXHIBIT? 6 Q. IF IT'S ALL RIGHT WITH YOU, PAGE NUMBERS OF THE 7 PRESENTATION. 8 A. OKAY. GREAT. THANKS. 9 Q. IF WE GO TO PAGE 6 OF THE PRESENTATION. NOW, THIS HAS A 10 TABLE THAT SHOWS WARRANTY ISSUES BY YEAR OF INSTALLATION AND IT 11 BEGINS IN 2001 AND IT GOES THROUGH 2009. IS THAT CORRECT? 12 A. YES. 13 Q. NOW, YOU KNOW THAT FIELDTURF WAS NOT INSTALLING EVOLUTION 14 FIELDS PRIOR TO THE END OF 2005. YOU KNOW THAT, SIR, DON'T 15 YOU? 16 A. YES. 17 Q. OKAY. SO PREDOMINANTLY WHERE WERE LOOKING AT WARRANTY 18 CLAIMS FROM 2001 THROUGH 2005. THOSE REFLECT WARRANTY CLAIMS 19 AT FIELDTURF FOR ITS PRODUCTS OTHER THAN EVOLUTION FIELDS, 20 TRUE? 21 A. CORRECT. 22 Q. AND YOU SEE THE PERCENTAGES UP THERE AND IN FACT SOME OF 23 THEM ARE EVEN HIGHER. 2001 WAS 27 PERCENT -- THAN THE WARRANTY 24 CLAIMS IN YEARS SUBSEQUENT TO 2005 WHEN FIELDTURF WAS USING 25 EVOLUTION FIBER IN ITS TURF SYSTEMS, CORRECT? 5 1 A. YES. 2 Q. IF YOU GO TO PAGE 7, THIS CHART IS CAPTIONED BASIS FOR 3 WARRANTY CLAIMS. AND DO YOU SEE YOU HAVE A WHOLE BUNCH OF 4 DIFFERENT CATEGORIES ON THE LEFT-HAND SIDE, INCLUDING A 5 CATEGORY FOR NON-GREEN? YOU SEE THAT, SIR, DOWN ABOUT THE 6 MIDDLE OF THAT? 7 A. YES. 8 Q. NON-GREEN, THAT'S WHAT WE WERE DISCUSSING A LITTLE BIT 9 YESTERDAY. THAT WOULD BE THE OTHER COLORS OUTSIDE OF GREEN 10 LIKE WHITE? 11 A. YES. 12 Q. OKAY. YELLOW? 13 A. YES. 14 Q. AND YOU ARE TRACKING WARRANTY CLAIMS FOR THROWS COLORS 15 BECAUSE YOU SAID YESTERDAY THAT NON-GREEN COLORS PERFORM 16 DIFFERENTLY THAN GREEN. THAT WAS YOUR TESTIMONY YESTERDAY, 17 ISN'T THAT CORRECT? 18 A. YES. 19 Q. AND IF YOU LOOK AT THAT YOU SEE IN THE YEARS OF EVOLUTION 20 WHEN IT WAS STARTING IN 5, 6, 7, 8 AND 8 AND 9 THERE'S ZERO 21 PERCENT OF WARRANTY CLAIMS RELATED TO NON-GREEN FIBERS. THAT'S 22 WHAT'S LISTED ON THIS CHART, ISN'T IT? 23 A. YES. 24 Q. OKAY. WHEREAS IN PRIOR YEARS THERE WERE ACTUAL CLAIMS 25 INVOLVING NON-GREENS ACCORDING TO THIS STUDY? 6 1 A. IT TAKES A TIME FOR THE DEGRADATION OF THE FIBER TO OCCUR. 2 Q. I UNDERSTAND. 3 BUT THIS IS A PROBLEM THAT WAS BEING REPORTED IN THE YEARS 4 BEFORE YOU WERE EVEN USING MY CLIENT'S FIBER IN YOUR PRODUCTS, 5 TRUE? 6 A. YES. 7 Q. AND THEN IF YOU LOOK AT THE BOTTOM THERE'S SOME BIG 8 BULLETPOINTS AND THE THIRD ONE SAYS SIGNIFICANT SPIKES IN LOOSE 9 TURF, LAYOVER AND INFILL. YOU SEE THAT? 10 A. YES. 11 Q. LOOSE TURF IS A MANUFACTURING ISSUE, NOT A FIBER ISSUE, 12 CORRECT? 13 A. NOT EXACTLY. 14 Q. LAYOVER IS AN ISSUE WHERE THE FIBER WILL NOT MAINTAIN ITS 15 RESILIENCE AND STAND UP STRAIGHT? 16 A. THAT'S RIGHT. 17 Q. NOW YOU KNOW THAT RESILIENCE IS NOT AN ITEM THAT WE GIVE 18 WARRANTY FOR, DON'T YOU? 19 A. YES. AND IT'S NOT A CLAIM IN THIS CASE. 20 Q. NOW, INFILL, TO THE EXTENT THAT THAT IS A SIGNIFICANT 21 SPIKE, THAT'S AN ISSUE THAT REALLY IS A FIELDTURF ISSUE, ISN'T 22 IT, SIR? 23 A. YES. 24 Q. AND THEN I'D LIKE TO GO TO PAGE 9. AND THERE'S SOME 25 POINTS HERE, SEVEN KEY WARRANTY RISKS AND I'D LIKE TO FOCUS ON 7 1 ITEM 4 TO START WITH BECAUSE IT'S DEALING WITH THIS DEGRADATION 2 OF THE NON-GREEN YARNS, THE WHITES. AND IT SAYS RISK OF HIGHER 3 WEAR RELATED CLAIMS DUE TO ACCELERATED DEGRADATION OF NON-GREEN 4 YARNS. 5 NOW, THAT'S NOT SPECIFIC TO ANY ONE PARTICULAR FIBER, IS 6 IT? 7 A. NO. 8 Q. AND THEN LAYOVER IF YOU GO TO THE NEXT ONE IT SAYS RISK OF 9 HIGHER WARRANTY CLAIMS DUE TO DECLINE IN AESTHETICS, 10 PERFORMANCE AND DURABILITY, QUESTION MARK, OF MONOFILAMENT 11 PRODUCTS BY STRANDS LAYING HORIZONTAL. 12 WAS THERE SOME RELATIONSHIP BETWEEN ONCE FIBERS LAYOVER 13 THEY WOULD BE SUBJECT TO DECREASED DURABILITY? 14 A. SO I PREPARED THIS WHEN I WASN'T PART OF THE COMPANY AND I 15 PREPARED IT AS I MENTIONED IN MY DIRECT THAT I DID IT OVER A 16 SHORT PERIOD OF TIME. AND IT WAS A -- AND YOU WILL A HE SEE IN 17 THE DATA THAT IT WAS LARGELY A FINANCIAL AND ANALYTICAL ANSWER. 18 SO AS YOU -- THERE WAS A QUESTION WITHIN THE ORGANIZATION AS TO 19 WHETHER LAYOVER HAD AN IMPACT ON PERFORMANCE AND DURABILITY. 20 IT OBVIOUSLY WAS NOT WHAT THE CUSTOMER EXPECTED EARLY ON WITH 21 MONOFILAMENT, BUT THERE WAS NOT A CLEAR RELATIONSHIP AND I 22 THINK IT'S BEEN PROVEN THAT THE PERFORMANCE AND DURABILITY IS 23 NOT AN ISSUE WHEN IT COMES TO LAYOVER. 24 Q. FOR THE LITIGATION, THE EXPERTS THAT YOU HAVE RETAINED 25 HAVE COME TO DIFFERENT CONCLUSIONS, BUT CERTAINLY THE COMPANY 8 1 WAS LOOKING AT THE ISSUE THAT LAYOVER MIGHT HAVE AN IMPACT OF 2 DURABILITY WHEN YOU DID THIS STUDY, ISN'T THAT RIGHT? 3 A. WELL, I THINK AGAIN AS I DESCRIBED YESTERDAY THERE WERE A 4 LOT OF DIFFERENT THEORIES ABOUT WHAT WAS GOING ON. AND THE 5 PATTERN WAS JUST EMERGING. AND SO PEOPLE WERE LOOKING FOR 6 EXPLANATIONS AS TO WHAT WAS GOING ON. AND ONE OF THE POTENTIAL 7 THEORY WHICH LATER GOT RULED OUT WAS LAYOVER AND INFILL. 8 Q. BY THE EXPERTS YOU RETAINED FOR THIS LAWSUIT, CORRECT? 9 A. THE EXPERTS AND ALSO THE OBSERVATIONAL DATA THAT WE TALKED 10 TO YESTERDAY JUST IN TERMS OF THE WAY THE PATTERN OF THE FIELDS 11 FAILED. 12 Q. BY THE EXPERTS RETAINED FOR THIS LAWSUIT; IS THAT CORRECT, 13 SIR? 14 A. AS I -- I THINK I ANSWERED THE QUESTION. 15 Q. IS THAT YES OR NO, SIR THAT REALLY IS AN EASY ONE? 16 A. NO. 17 Q. IT WASN'T? 18 A. NO IT'S A COMBINATION OF THE DATA THAT WE CAME UP THAT I 19 SHARED YESTERDAY AND THE EXPERTS THAT HAVE BEEN RETAINED AS 20 PART OF THIS LITIGATION. 21 Q. AND THE NEXT PAGE, 10, IT HAS CURRENT ESTIMATED ANNUAL 22 LIABILITY. AND THIS IS ESTIMATING BETWEEN 2010 AND 2013. AND 23 THIS LIABILITY FOR THE NON-GREEN, THE WHITE FIBERS NOT WEARING 24 AS WELL, THE ESTIMATE WAS AN ANNUAL LIABILITY OF 525 THOUSAND, 25 CORRECT? 9 1 A. THAT'S CORRECT. 2 Q. AND A LOT OF THE CLAIMS IN THIS LITIGATION FOR FIELDS THAT 3 WERE INSTALLED IN THOSE YEARS SUBSTANTIALLY ABOVE 525 THOUSAND 4 A YEAR, ISN'T IT? 5 A. YES. 6 Q. BUT THE OTHER ISSUES PERTAINING TO LAYOVER WHICH IS YOU 7 ADMIT A NON-CLAIM IN THIS CASE AND LOOSE TUFT WHICH YOU AGREE 8 IS A MANUFACTURING ISSUE, THOSE ESTIMATED ANNUAL LIABILITIES 9 ARE SIGNIFICANTLY HIGHER THAN THE NON-GREEN DEGRADATIONS? 10 A. YES AND MANY OF THE LAYOVER ISSUES AND THE LOOSE TUFT 11 ISSUES ARE NOT RELATED. IT WAS INCLUDED IN THIS ANALYSIS 12 AREN'T RELATED TO THE DURASPINE PRODUCT AT ALL. AND AGAIN, I 13 WOULD SAY THAT I PREPARED THIS IN A SHORT AMOUNT OF TIME AROUND 14 HONESTLY I GOT IT WRONG BECAUSE WE HAVE NOT PAID OUT THOSE 15 LIABILITIES RELATED TO LAYOVER WE HAVEN'T REPLACED ONE FIELD 16 RELATED TO LAY EVERY AND ON THE LOOSE TUFT AS I MENTIONED 17 YESTERDAY WITH REGARD TO FIELDS BEING REPLACED FOR LOOSE TUFT 18 NO DURASPINE FIELDS HAVE BEEN REPLACED FOR LOOSE TUFT. THE 19 ONLY TWO FIELDS THAT WE REPLACED FOR LOOSE TUFT IN THE TIME 20 THAT I HAVE BEEN THE CEO HAVE BEEN RELATED TO THE HARD SOFT 21 PRODUCT. 22 MR. CREMER: YOUR HONOR, I MOVE TO STRIKE THAT'S 23 TOTALLY NONRESPONSIVE TO MY QUESTION. 24 THE COURT: OVERRULED. 25 BY MR. CREMER: 10 1 Q. ALL RIGHT. WOULD YOU GO TO PAGE 12, PLEASE. 2 A. UH-HUH. 3 Q. SO PART OF THIS STUDY THAT YOU DID WAS NOT ONLY TO TRACK 4 WHAT ARE THE SOURCE OF THE WARRANTY CLAIMS BUT WHAT CAN WE DO 5 TO PROTECT OURSELVES, THAT WAS PART OF WHAT YOU DID IN THIS 6 STUDY, CORRECT? 7 A. I CONSIDERED IT AS AN OUTSIDER. 8 Q. AND ONE OF THE THINGS THAT YOU WERE DOING AS PART OF YOUR 9 CONSULTING IS MAKING SOME RECOMMENDATIONS HOW FIELDTURF COULD 10 BETTER PROTECT ITSELF IN THE TERMS AND CONDITIONS LIKE A 11 LIMITED WARRANTY THAT IT ISSUED TO ITS CUSTOMERS, TRUE? 12 A. YES. 13 Q. WHOSE WARRANTY WERE YOU LOOKING AT AND WERE YOU QUOTING 14 FROM WHEN YOU WERE MAKING RECOMMENDATIONS TO FIELDTURF THAT 15 THEY SHOULD BETTER MIMIC? 16 A. TENCATE'S. 17 Q. MY CLIENT'S? 18 A. YES. 19 Q. AND THE SUGGESTION HERE IS IT SAYS AT THE TOP BASED ON A 20 REVIEW OF TENCATE AND KEY COMPETITORS' WARRANTIES SEVERAL 21 CHANGES TO FIELDTURF'S WARRANTY SHOULD BE CONSIDERED. FIRST 22 THING YOU SAY, MAKE THE TERMS MORE SPECIFIC AND QUANTIFIED, 23 (NUMERICAL STANDARDS). THAT WOULD BE LIKE MAKE SURE THAT YOU 24 HAVE A SPECIFIC USAGE PERIOD THAT THE FIELD IS ALLOWED TO BE 25 PLAYED UPON OR THE WARRANTY WILL BE VOIDABLE? THAT WOULD BE AN 11 1 EXAMPLE OF A SPECIFIC OR QUANTIFIED NUMERICAL STANDARD, 2 CORRECT? 3 A. I THINK THE ONES I WAS REFERRING TO IN THIS ONE IS 4 ACTUALLY THE COMPETITORS' WARRANTIES THAT MADE REFERENCE TO 5 FADING OF COLORS RELATED TO COLORFASTNESS AS WELL AS TUFT BIND 6 AND OTHER MATTERS. I DON'T RECALL THAT THIS WAS SPECIFIC TO 7 HOURS OF USE I THINK IT WAS RELATED TO WHAT WAS IN THE 8 COMPETITORS' WARRANTIES. 9 Q. WELL, ARE YOU TELLING THE JURY THAT HOURS OF USAGE ISN'T 10 THE TYPE OF NUMERICAL STANDARD THAT YOU TYPICALLY HAVE IN A 11 LIMITED WARRANTY? 12 A. I'M TELLING YOU WHAT I THINK THAT BULLET POINT REFERS TO 13 IN THE SUBSEQUENT PAGES. 14 Q. IT ALSO SAYS IN THE NEXT POINT MORE CLOSELY MATCHED TERMS 15 AND LEVEL OF DETAIL IN THE TENCATE WARRANTY. YOU RECOMMENDED 16 THAT? 17 A. YES. 18 Q. BECAUSE YOU WERE THINKING IF WE GIVE A GREATER WARRANTY TO 19 OUR CUSTOMERS THAN TENCATE GIVES TO US YOU KNEW FROM THE TERMS 20 OF OUR AGREEMENT THAT WE WOULDN'T BE RESPONSIBLE FOR THE MORE 21 THAT YOU GAVE YOUR CUSTOMERS? YOU UNDERSTOOD THAT, CORRECT? 22 A. YES. 23 Q. SO YOU WANTED TO HAVE WHATEVER THEY GAVE US WE BETTER GIVE 24 TO OUR CUSTOMERS OR MAYBE WE HAVE TO BUY IT. YOU ARE WORRIED 25 ABOUT THAT? 12 1 A. WELL, I SAID THAT IT SHOULD BE CONSIDERED. 2 Q. AND ALSO YOU WANTED THE WARRANTY OR THE TERMS AND 3 CONDITIONS -- AND AGAIN, THIS IS PERTAINING TO PRIMARILY WHAT 4 YOUR CUSTOMER'S OBLIGATIONS ARE VIS-A-VIS FIELDTURF'S 5 OBLIGATIONS, CORRECT? 6 A. I'M SORRY. COULD YOU REPEAT THE QUESTION? 7 Q. WHEN YOU ARE TALKING ABOUT THESE TERMS AND CONDITIONS THIS 8 SETS FORTH THE RIGHTS AND THE RESPONSIBILITIES BETWEEN YOU AND 9 YOUR CUSTOMER? 10 A. YES. 11 Q. AND THEY WOULD DEAL WITH THINGS LIKE AS MENTIONED IN POINT 12 3, SPECIFICALLY TIGHTEN UP LANGUAGE ON MAINTENANCE 13 REQUIREMENTS, NORMAL USAGE LEVELS AND FOOT WEAR. 14 A. YES AND AGAIN IT'S WORTH MENTION THAT GO I WAS AN OUTSIDER 15 AT THIS POINT WITHOUT REALLY UNDERSTANDING, YOU KNOW THE 16 RELATIONSHIP BETWEEN US AND OUR CUSTOMERS AND OUR KNOWLEDGE OF 17 HOW OUR CUSTOMERS ARE USING THE FIELDS. 18 Q. SO YOU WANTED THEM -- YOU WERE RECOMMENDING AS A 19 CONSULTANT -- WHAT WAS YOUR HOURLY RATE TO DO THAT WORK? 20 A. I DON'T RECALL. 21 MR. KAPLAN: OBJECTION. RELEVANCE. 22 THE COURT: OVERRULED. 23 BY MR. CREMER: 24 Q. IT WAS AN EXPENSIVE STUDY, WASN'T IT? 25 A. THIS PIECE WASN'T -- I HONESTLY, BILL, DON'T REMEMBER WHAT 13 1 I WOULD BILL THEM. THIS WAS A COMPANY THAT I HAD DONE OTHER 2 WORK FOR. I MIGHT HAVE ACTUALLY DONE THIS WORK AT NO COST TO 3 THE COMPANY. 4 Q. WHEN YOU SAID THAT TO TIGHTEN UP THE LANGUAGE ON NORMAL 5 USAGE LEVELS, WERE YOU SUGGESTING THAT YOU MADE SURE, A, YOU 6 HAVE A SPECIFIC USAGE LEVEL AND, B, THAT IT AT LEAST MIRROR 7 WHAT OUR VENDOR WHO IS SUPPLYING THE YARN WAS GIVING TO US? 8 THAT WOULD BE A GOOD RECOMMENDATION FROM AN OUTSIDE CONSULTANT, 9 WOULDN'T IT? 10 A. I'M NOT SURE. IS YOUR QUESTION WHAT WOULD BE THE 11 RECOMMENDATION FROM A CONSULTANT OR WHAT WAS I RECOMMEND BEING 12 HERE? 13 Q. WHEN YOU WERE TALKING ABOUT TIGHTENING UP, LIMITING MORE 14 NORMAL USAGE LEVELS ISN'T THAT WHAT YOU ARE TALKING ABOUT? 15 A. I THINK I WAS SUGGESTING THAT WE CLARIFY AND ADD SOME MORE 16 SPECIFIC LANGUAGE AROUND HOW TO MAINTAIN OUR FIELDS IN OUR 17 WARRANTY, WHAT IS NORMAL USAGE AND WHAT WE WOULD MEAN BY FOOT 18 WEAR. 19 Q. WELL, YOU CAN DEFINE NORMAL USAGE BY A NUMBER, CAN'T YOU? 20 A. I BELIEVE WE -- IN OUR WARRANTY WE DO HAVE -- IN MOST OF 21 OUR WARRANTIES WE DO HAVE USAGE LEVEL IN THERE. 22 Q. UNLESS THE CUSTOMER TELLS YOU THEY NEED MORE THEN YOU GIVE 23 IT TO THEM? 24 A. THE VAST MAJORITY OF THEM HAVE USAGE LIMITATION TODAY. 25 Q. AND YOU ENFORCE THAT, DON'T YOU? 14 1 A. IT'S PART OF THE STANDARD WARRANTY. 2 Q. AND THERE'S NOTHING WRONG WITH YOU ENFORCING ONE OF YOUR 3 WARRANTY TERMS IF YOU LIMIT IT TO 3,000 HOURS THERE'S NO 4 PROBLEM WITH YOU THEN SAYING TO A CUSTOMER THAT EXCEEDS THAT 5 I'M SORRY WE CAN'T WARRANT THIS FIELD? THERE'S NOTHING WRONG 6 WITH THAT, IS IT? 7 A. I THINK THE PROBLEM WITH THAT APPROACH IS IF YOU KNOW THAT 8 THE FAILURE OF THE FIELD IS UNRELATED TO THE WAY THAT THE 9 CUSTOMER IS USING THE FIELD IT'S BAD BUSINESS PRACTICE AND 10 FAIRLY UNFAIR. 11 Q. YOU HAVE ENFORCED THE USAGE LIMITATION WARRANTY AGAINST 12 CUSTOMERS, HAVEN'T YOU? 13 A. I THINK ON INSTANCES OF INDOOR FIELDS WHERE THEY'RE -- AND 14 WHERE THE FAILURE PATTERN IS CLEARLY A FUNCTION OF USAGE, YES. 15 Q. ARE YOU SAYING YOU KNOW OF NO INSTANCE -- AND YOU ARE ON 16 THE WARRANTY COMMITTEE -- WHERE FIELDTURF HAS UTILIZED ITS 17 WARRANTY PROVISION ON THE MAXIMUM NUMBER OF YEARS AND ENFORCED 18 THAT AGAINST A CUSTOMER WHERE THEY VIOLATED IT? 19 A. ARE YOU SAYING HAVE WE -- CAN YOU ASK THE QUESTION AGAIN? 20 I'M SORRY. 21 Q. HAVE YOU EVER -- FIELDTURF NOW -- HAS FIELDTURF EVER USED 22 ITS ANNUAL USAGE PERIOD OF PLAY AND ENFORCED THAT AGAINST A 23 CUSTOMER OUTSIDE OF INDOOR FIELDS? 24 A. YES, IN INDOOR FIELDS. IN OUTDOOR FIELDS, NOT TO MY 25 KNOWLEDGE. 15 1 Q. WELL, IF YOU DID DO IT, WOULD YOU HAVE A PROBLEM WITH IT? 2 IF YOUR WARRANTY COMMITTEE DID DO IT WOULD YOU OBJECT TO THAT 3 IF THEY ENFORCED ONE OF THE RULES OR THE LIMITATIONS CONTAINED 4 IN THE WARRANTY? 5 A. IF THE REASON FOR THE FAILURE OF THE FIELD WAS A FUNCTION 6 OF USAGE I WOULD HAVE NO PROBLEM WITH IT. IF THE REASON FOR 7 THE FAILURE OF THE FIELD WAS CAUSED BY SOMETHING ELSE, I WOULD 8 -- I WOULD HAVE A PROBLEM WITH IT. 9 Q. GO TO THE NEXT PARAGRAPH. OBJECTIVE SHOULD BE TO MIRROR 10 TENCATE'S APPROACH. AND THEN IT HAS THE NEXT LINE, TERMS AND 11 CONDITIONS LARGELY ELIMINATE ACTUAL LEGALLY, ENFORCEABLE 12 LIABILITY. 13 YOU WERE RECOMMENDING TO FIELDTURF THAT THEY FOLLOW OUR 14 WARRANTY -- OUR WARRANTY APPROACH SO THAT YOU COULD LARGELY 15 ELIMINATE ENFORCEABLE LIABILITY THAT YOUR CUSTOMERS MAY HAVE 16 AGAINST YOU? THAT'S WHAT YOU WERE TELLING FIELDTURF TO DO? 17 A. I WAS -- FIRST OF ALL, I WAS SUGGESTING THAT THAT WAS WHAT 18 TENCATE WAS DOING AND/OR ATTEMPTING TO DO. AND AGAIN, I WAS 19 OVERSTEPPING MY BOUND AS FROM A CONSULTANT TO A LAWYER HERE IN 20 TERMS OF INTERPRETING THE TERMS AND CONDITIONS OF THE TENCATE 21 WARRANTY. 22 BUT AS AN OUTSIDER, I WAS RECOMMENDING THAT WE CONSIDER 23 DOING WHAT TENCATE HAS DONE WHICH IS WALK AWAY FROM LIABILITY. 24 AND IT WAS THE WRONG BUSINESS PRACTICE AND WHEN I BECAME CEO I 25 BECAME VERY AWARE OF THAT THAT THAT WASN'T THE RIGHT THING TO 16 1 DO. 2 Q. SO YOU WERE RECOMMENDING WHAT YOU CONSIDERED TO BE AN 3 UNETHICAL BUSINESS PRACTICE? 4 A. NOT UNETHICAL. BUT NOT SMART BUSINESS PRACTICE. AND I 5 WAS MAKING A JUDGMENT, A WRONG JUDGMENT FROM A LEGAL POINT OF 6 VIEW BECAUSE I'M NOT A LAWYER ABOUT THE ENFORCEABILITY OF 7 TENCATE'S WARRANTY. 8 Q. SO NOW THAT YOU HAVE TO DEFEND IT YOU WANT TO DISAVOW ANY 9 RESPONSIBILITY FOR IT? 10 A. DISAVOW WHAT? 11 Q. RESPONSIBILITY FOR WRITE IT GO AND WRITING IT AS A 12 RECOMMENDATION AS A CONSULTANT TO THE COMPANY TO TAKE STEPS TO 13 LIMIT THEIR LEGAL LIABILITY TO YOUR CUSTOMERS? 14 A. WELL, NOW AS THE CEO I HAVE A DIFFERENT PERSPECTIVE I'M 15 NOT DISAVOWING ANYTHING I'M JUST TELLING YOU IF WE FOLLOW MY 16 RECOMMENDATION HERE IT WOULD HAVE BEEN THE WRONG THING TO DO. 17 Q. LET'S LOOK AT THE NEXT PAGE, TENCATE WARRANTY, PAGE 13. 18 SO HERE NOW YOU ARE ACTUALLY SHOWING THE SPECIFICS OF THE 19 TENCATE WARRANTY, AND THIS IS THE ONE YOU ARE SAYING THAT 20 FIELDTURF SHOULD MIRROR. AND IT SAYS OUR WARRANTY ONLY 21 WARRANTS THAT FIBERS WILL RETAIN 50 PERCENT OF THEIR TENSILE 22 STRENGTH OVER THE WARRANTY PERIOD, THAT THE WARRANTY PERIOD 23 DETERMINED BY FIBER TYPE AND LATITUDE OF INSTALLATION -- THIS 24 IS THIS CHART THAT SHOWS THE UV AROUND VARIOUS PARTS OF THE OF 25 THE WORLD -- LIABILITY IS PRORATED BASED ON REMAINING MONTHS OF 17 1 THE WARRANTY PERIOD. AND HERE IS AN IMPORTANT ONE, EXPLICITLY 2 STATES NORMAL WE ARE AND TEAR IS NOT A MANUFACTURING DEFECT AND 3 IS NOT COVERED BY THE WARRANTY. 4 DOES FIELDTURF'S WARRANTY TO ITS CUSTOMERS HAVE SUCH A 5 PROVISION? 6 A. I BELIEVE THE WAY OUR WARRANTY DEALS WITH THIS IS WHAT I 7 MENTIONED YESTERDAY WHICH IS IF THERE'S A REPETITIVE USE IN A 8 PARTICULAR AREA THEN THAT IS AN EXCLUSION IN OUR WARRANTY. 9 Q. SO END ZONES, FOR EXAMPLE, YOU DON'T GIVE A WARRANTY FOR 10 THE END ZONES, DO YOU? 11 A. YES. WE GIVE A WARRANTY FOR THE WHOLE FIELD. 12 Q. WHAT ARE THE AREAS, THE HIGH USE AREAS THAT YOU EXCLUDE 13 FROM WARRANTY OF A FIELD? 14 A. I BELIEVE WHAT'S MENTIONED IN THE WARRANTY ITSELF AND IT 15 WOULD BE HELPFUL IF I HAD A COPY IN FRONT OF ME -- BUT IT WOULD 16 BE AREAS LIKE THE DOT ON THE PENALTY KICK. SO WHERE -- OR THE 17 CORNER KICK AREA WHERE THERE'S -- AND WE'RE NOT EXCLUDING THE 18 WARRANTY THERE. BUT IF THERE'S A FAILURE IN THE TURF OR THE 19 CARPET AT THAT PARTICULAR POINT THERE'S CLEARLY A FUNCTION OF 20 OVER USE THEN THE REPAIR WHICH WE DO WILL COME AT A CHARGE TO 21 THE CUSTOMER. 22 Q. BUT GENERALLY NORMAL WEAR AND TEAR OF THE FIELD IN ITS 23 ENTIRETY IS THAT SOMETHING YOU COVER? 24 A. COVER -- I'M SORRY CAN YOU -- 25 Q. YOUR WARRANTY THAT YOU GIVE WHY TO YOUR CUSTOMERS WHO BUY 18 1 YOUR FIELDS DO YOU GIVE THEM A WARRANTY FOR ORDINARY WEAR AND 2 TEAR? 3 A. WE -- IF THE FIELD IS WEARING NORMALLY WE DON'T -- THERE'S 4 NOT A WARRANTY -- THERE'S NO WARRANTY ISSUE. 5 Q. SO YOU DON'T GIVE A WARRANTY IS THE ANSWER TO MY QUESTION 6 FOR NORMAL WEAR AND TEAR, DO YOU? 7 A. NO. 8 Q. BUT WE DO, CORRECT? 9 A. I DON'T UNDERSTAND YOUR QUESTION. 10 Q. YOU POINT OUT HERE BECAUSE YOU LOOKED AT OUR WARRANTY AND 11 YOU WANTED TO MIRROR IT THAT WE DO NOT GIVE A WARRANTY FOR 12 NORMAL WEAR AND TEAR WHEREAS FIELDTURF DOES. THAT WAS YOUR 13 POINT HERE, WASN'T IT, SIR? 14 A. NO, I THINK AS YOU MENTIONED AT THE BEGINNING THIS WAS 15 JUST A SUMMARY OF SOME KEY TERMS IN THE TENCATE WARRANTY. I 16 DON'T KNOW THAT THIS IS A COMPARE AND CONTRAST. 17 Q. THIS IS ONE OF THOSE POINTS YOU WANTED TO MIRROR, WASN'T 18 IT? 19 A. LIKE I SAID I THINK THIS IS A SUMMARY OF WHICH I GOT WRONG 20 OF THE SOME OF THE KEY POINTS OF THE TENCATE WARRANTY. 21 Q. WELL, LET'S LOOK AT SOME OF THE OTHER KEY POINTS TOO. 22 A. OKAY. 23 Q. YOU ALSO POINTED OUT THAT OUR WARRANTY PLACES SIGNIFICANT 24 LIMITATION ON COVERAGES, INCLUDING IMPROPER PROCESSING, 25 INSTALLATION AND REPAIRS, FAILURE TO PROPERLY MAINTAIN, PROTECT 19 1 AND REPAIR THE TURF, IMPROPER DESIGN AND FAILURE OF SUB BASE, 2 FAILURE TO MAINTAIN INFILL AT CORRECT LEVEL, USE OF 3 INAPPROPRIATE FOOT WEAR OR SPORTS EQUIPMENT. 4 ALL OF THESE THINGS WERE POINTED OUT TO BE IMPORTANT 5 THINGS THAT SHOULD BE CONSIDERED BY TENCATE TO MIRROR IN ITS 6 WARRANTY TO ITS CUSTOMER. AT LEAST THOSE ARE THINGS YOU WERE 7 DISCUSS ANYTHING THIS REPORT, TRUE, SIR? 8 A. THERE WAS AN IMPORTANT POINT THAT I MISSED HERE IN THE 9 SUMMARY OF THE WARRANTY IS THAT THE LIMITATIONS ARE ONLY IN THE 10 TENCATE WARRANTY ARE ONLY -- THEY ARE ONLY LIMITATIONS IF THEY 11 ARE THE CAUSE OF THE FIBER FAILURE. 12 Q. ALL RIGHT. LET'S GO TO THE NEXT SECTION I WANT TO TALK 13 ABOUT, PAGE 37. NOW WE ARE TALKING ABOUT THIS NON-GREEN ISSUE, 14 THE WHITES, THE WHITE FIBER. AND I JUST WANT TO GO TO 15 BULLETPOINT 3 WHERE YOU SAY HERE THERE IS NO CLEAR RELATIONSHIP 16 BETWEEN FIBER TYPE AND NON-GREEN CLAIMS. THAT'S WHAT YOU 17 REPORT HERE, TRUE? 18 A. YES. BUT THERE'S ANOTHER STATEMENT LATER IN THE DOCUMENT 19 -- 20 Q. WELL, THEN I'M JUST ASKING YOU ABOUT WHAT THIS SAYS HERE 21 AT THIS POINT? 22 A. YEAH, BUT IT'S NOT A COMPLETE CHARACTERIZATION OF WHAT I 23 SAY IN THE DOCUMENT. 24 MR. CREMER: YOUR HONOR, I'D ASK FOR SOME ASSISTANCE 25 WITH THIS WITNESS. I'M ASKING ABOUT THIS POINT. 20 1 THE COURT: ANSWER THE QUESTION, MR. DALIERE. 2 THE WITNESS: YES, IN THIS BULLETPOINT THAT IS WHAT 3 I'M SAYING. 4 BY MR. CREMER: 5 Q. AND IF YOU GO TO PAGE 39 AT THE VERY BOTTOM IN THE BOX YOU 6 SAY IT'S DIFFICULT TO ESTABLISH A RELATIONSHIP BETWEEN FIBER 7 TYPE AND NON-GREEN WARRANTY CLAIMS. THAT'S WHAT YOU SAID IN 8 YOUR STUDY, SIR; ISN'T THAT RIGHT? 9 A. YES, AT THIS POINT IN TIME. 10 Q. JUST LIKE YOU SAID IN THAT LETTER YESTERDAY, THEIRS AS 11 WELL AS OURS NON-GREEN WEARS DIFFERENTLY THAN GREEN, RIGHT? 12 A. YES. 13 Q. IF YOU GO TO PAGE 42, PLEASE. AND THIS IS NOW SOME 14 PROPOSED POLICY CHANGES FOR SOME OF THE TERMS AND CONDITIONS 15 THAT APPLY TO THE SALE OF THOSE PRODUCTS TO YOUR CUSTOMERS. 16 AND OVER ON THE RIGHT THE SECOND BULLET POINT I WANT TO TALK 17 ABOUT THAT. 18 YOU SAY CREATE A DIFFERENT WARRANTY TERMS FOR STANDARD AND 19 CUSTOM COLORS. VALIDATE STABILITY ON 15 STANDARD NON-GREEN 20 COLORS, REVIEW OF SUPPLIERS IN PROCESS TESTS, CONDUCT OWN 21 IN-HOUSE TESTS, EXCLUDE CUSTOM COLORS FROM WARRANTY. 22 DID YOU EVER IMPLEMENT EXCLUDING CUSTOM COLORS FROM YOUR 23 WARRANTY TO YOUR CUSTOMERS AT FIELDTURF? 24 A. YES, WE DO NOW. 25 Q. AND WOULD YOU ALSO EXPECT MY CLIENT TO WARRANT CUSTOM 21 1 COLORS TO YOU? 2 A. UNLESS THEY GAVE ME AN EXCLUSION TO THAT CUSTOM COLOR, 3 YES. 4 Q. AND YOU RECOGNIZE THAT IT'S FROM YOUR PERSPECTIVE, 5 FIELDTURF, THAT IT'S DIFFICULT TO WARRANT CUSTOM COLORS BECAUSE 6 THERE'S NO TIME. IF YOU HAVE A CUSTOMER THAT SAYS I WANT, YOU 7 KNOW, NOTRE DAME GREEN AND IT'S A SPECIFIC SHADE OF GREEN THAT 8 THEY TELL YOU TO MATCH, FOR YOU TO DO THAT AND COMPLY WITH THAT 9 REQUEST YOU DON'T HAVE TIME TO TEST IT, CORRECT? 10 A. THE ANSWER IS IS YOU CAN TELL DEPENDING ON WHAT PIGMENTS 11 ARE USED WHETHER IT'S GOING TO BE LIKELY TO BE STABLE OR NOT 12 STABLE BASED ON THE ORGANIC OR INORGANIC. BUT YOU WILL NOT 13 HAVE TIME TO TEST. 14 Q. THAT'S WHY YOU EXCLUDE IT, DON'T YOU? 15 A. BUT WE LET OUR CUSTOMERS KNOW THAT. 16 Q. I UNDERSTAND THAT. 17 BUT YOU EXCLUDE IT BECAUSE YOU DON'T HAVE TIME TO VERIFY 18 THAT IT'LL BE STABLE OVER ANY SET DURATION, CORRECT? 19 A. IF WE HAVE CONCERNS WE LET THE CUSTOMER KNOW IF WE BELIEVE 20 IT'S STABLE, WE'LL WARRANT IT. 21 Q. I WANT TO GO TO PAGE 44 AND BULLETPOINT 4 IS AN 22 INTERESTING POINT TO TALK ABOUT. THIS IS ABOUT OBSERVATIONS OF 23 LAYOVER RELATED TO WARRANTY CLAIMS. AND IT TALKS ABOUT 24 DECLINES IN LAYOVER CLAIMS APPEAR TO BE DRIVEN BY THE EVOLUTION 25 OF THE DURASPINE PRODUCT. THAT'S OUR CLIENT'S PRODUCT, RIGHT? 22 1 A. YES. 2 Q. AND THE RETURN TO HIGHER INFILL LEVELS. 3 SEE THAT, SIR? 4 A. YES. 5 Q. SO IN THIS STUDY YOU FOUND WHEN YOU MAINTAINED HIGH OR 6 PROPER LEVELS OF INFILL YOU HAVE A DECREASE IN LAYOVER CLAIMS, 7 TRUE? 8 A. THERE WASN'T -- THIS WAS THE CHARACTERIZATION OF TALKING 9 TO THE PEOPLE IN THE BUSINESS AND THAT WAS THEIR OPINION AT THE 10 TIME. 11 Q. I THINK I HAVE ONE MORE THING TO DISCUSS MAYBE. 51, 12 PLEASE. 13 THIS IS ABOUT LOOSE TUFT WARRANTY CLAIMS. AND, AGAIN, 14 JUST TO WE'RE ON THE SAME WAVELENGTH WE ARE TALKING ABOUT TUFT 15 LOCK ISSUES WHERE IT PULLS OUT BECAUSE YOU DON'T HAVE ADEQUATE 16 ADHESIVE AND IT SAYS AT THE FIRST BULLETPOINT LOOSE TUFT 17 WARRANTY ISSUES SPIKED IN 2006 WITH THE INTRODUCTION OF THE 18 MONOFILAMENT PRODUCT, IN PARTICULAR THE FTHS. FTHS IS YOUR 19 CODE FOR EVOLUTION? 20 A. NO IT'S ACTUALLY HARD SOFT. IT'S A DIFFERENT PRODUCT. 21 Q. BUT IT HAS EVOLUTION FIBER IN IT, DOESN'T IT? 22 A. IT HAS THAT AND ANOTHER PRODUCT. BUT IT WAS ACTUALLY 23 PROVIDED TO US. WE HAVE TWO VERSIONS OF HARD SOFT. VERSION 24 ONE WAS PROVIDED BY BONAR. THE SECOND VERSION WAS PROVIDED BY 25 TENCATE. SO A LARGE PERCENTAGE OF THE HARD SOFT HAD NO 23 1 EVOLUTION IN IT AT ALL. 2 Q. BUT IT'S TALKING ABOUT THE PROBLEM RELATED TO TUFT BIND IN 3 MONOFILAMENT PRODUCT, PARTICULARLY THAT HARD SOFT; BUT IT 4 DOESN'T SAY EXCLUSIVELY HARD SOFT, DID IT? 5 A. NO, IT DID NOT SAY EXCLUSIVELY HARD SOFT. 6 Q. AND THIS GETS BACK TO SOME OF THE TESTIMONY WE HAVE HAD IN 7 THIS CASE WHEN YOU HAVE THAT BALL A BUNDLE OF EVOLUTION FIBER 8 MONOFILAMENTS THAT ARE WRAPPED AND WHEN THAT'S TUFTED THROUGH 9 MAKING SURE THAT THAT POLYURETHANE GLUE GETS UP AND SECURES ALL 10 OF THAT BALL INTO THE MATTING, TRUE? 11 A. YES. 12 Q. AND IT SAYS AT POINT 4 BASED ON THE LOOSE TUFT INCIDENCE 13 IN MORE RECENT YEARS IT APPEARS THAT CORRECTIVE ACTIONS, NAMELY 14 HIGHER COATING THICKNESS AND INCREASED INFILL WEIGHT, HAVE 15 REDUCED CLAIMS. 16 WAS THAT A TRUE STATEMENT WHEN YOU WROTE THAT? 17 A. IT WAS THE OPINION OF THE PERSON THAT I WAS WORKING WITH 18 ON THIS STUDY WHO WAS THE CUSTOMER SERVICE PERSON WHO IS NOT A 19 TECHNICAL PERSON. SO IT WAS THE VIEW OF -- IT WAS HER VIEW AT 20 THAT TIME. 21 Q. BUT YOU'RE NOT A TECHNICAL PERSON EITHER, ARE YOU, SIR? 22 A. NO, I WOULD SAY THAT I HAVE A DIFFERENT VIEW OF IT NOW 23 THAN -- AND NOW THAT I HAVE BEEN IN THE BUSINESS FOR A WHILE TO 24 FORM MY OWN OPINION ON IT. 25 Q. I DON'T KNOW IF YOU HAVE THE OTHER EXHIBITS THAT WE TALKED 24 1 ABOUT YESTERDAY UP THERE OR NOT? 2 A. I HAVE SOME HERE. I DON'T KNOW IF THEY ARE ALL OF THEM OR 3 NOT. 4 Q. ALL RIGHT. WOULD YOU HAPPEN TO HAVE 935 UP THERE WITH 5 YOU, A 2005 SUPPLY CONTRACT? 6 A. I DO. 7 Q. ALL RIGHT. IF YOU WOULD GO TO APPENDIX 2 WHICH I THINK IS 8 ON PAGE 2. A COUPLE MORE PAGES, I THINK. ONE MORE. THANK 9 YOU. 10 ALL RIGHT. APPENDIX TWO TO THIS CONTRACT TALKS ABOUT RAW 11 MATERIALS, AND YOU SEE IT DESCRIBES THE RAW MATERIAL AS P E AND 12 ADDITIVES, CORRECT? 13 A. YES. 14 Q. SO WHEN MY CLIENT WAS TELLING YOU WHAT KIND OF FIBER YOU 15 WERE RECEIVING IN TERMS OF ITS RAW MATERIALS THEY WERE 16 REPRESENTING THAT IT WAS POLYETHYLENE, CORRECT? 17 A. YES. 18 Q. AND IT DOESN'T SAY POLYETHYLENE GRADE 8, DOES IT? 19 A. NO. 20 Q. OR GRADE 6? 21 A. NO. 22 Q. OR GRADE 4? 23 A. NO. 24 Q. BY THE WAY, DO YOU TELL YOUR COMMITTEES MEMBERS WHETHER 25 YOUR REVOLUTION PRODUCT IS A RESIN THAT IS A POLYETHYLENE C6? 25 1 A. YES. 2 Q. WHEN YOU LOOK AT EXHIBIT 976 -- SORRY. EXHIBIT 911, DO 3 YOU STILL HAVE THAT, MR. DALIERE? 4 A. WHAT IS IT? YES, I DO. 5 Q. IT'S THE 2008 SUPPLY CONTRACT. 6 A. YES, I HAVE IT. 7 Q. COULD YOU LOOK AT PAGE 15. I'M SORRY. I AM GIVING YOU 8 THE WRONG PAGE NUMBER. IT'S 15 OF THE DOCUMENT, 16 PROBABLY IN 9 OURS. IT'S THE SPECIFICATION SHEET. 10 DO YOU HAVE THE SPEC SHEET? 11 THERE WE GO. I KNOW I'M DOING IT ALL WRONG. I'M SORRY, 12 ANTONIO. 13 IF YOU BLOW UP THE SECTION ON BASIC POLYMER. FIRST OF 14 ALL, LET'S IDENTIFY FOR THE JURY THIS IS A SPECIFICATION SHEET 15 THAT MY CLIENT GIVES TO FIELDTURF THAT TALKS ABOUT THE 16 CHARACTERISTICS, CHEMICAL CHARACTERISTICS AND HAS OTHER 17 SPECIFICATIONS OF OUR FIBER, TRUE? 18 A. YES. 19 Q. AND YOU SEE WHEN IT TALKS ABOUT WHAT WE ARE REPRESENTING 20 THE POLYMER TO BE WE TELL YOU IT'S A POLYETHYLENE? 21 A. YES. 22 Q. AND THAT WAS TRUTHFUL, WASN'T IT? 23 A. YES. 24 Q. AND THERE WAS NO REFERENCE THERE TO C6 OR C7 OR C8? 25 A. NO. 26 1 Q. DO YOU KNOW IF ANYBODY EVER ASKED? 2 A. I'M NOT AWARE. 3 Q. YOU WERE TALKING ABOUT IN YOUR DIRECT EXAMINATION I THINK 4 ONE OF THE FIRST QUESTIONS MR. KAPLAN ASKED YOU IS SOMETHING I 5 SAID IN MY OPENING STATEMENTS WHICH IS ABOUT YOU'RE STILL 6 INSTALLING EVOLUTION FIELDS, AND HE CERTAINLY IMPLIED WHAT I 7 SAID WAS NOT CORRECT. YOU GAVE YOUR DEPOSITION ON AUGUST 2ND, 8 2012? 9 A. THAT'S CORRECT. 10 Q. AND WHEN I ASKED YOU AT THAT TIME YOU SAID YOU CONTINUED 11 TO SUPPLY EVOLUTION TO CLIENTS AT THAT TIME? 12 A. I THINK WHAT I TOLD YOU AT THAT TIME WAS THAT FOR 13 REPLACEMENT FIELDS WHICH WE FELT WOULD MAKE -- IN REPLACEMENTS 14 FIELDS WE WOULD INSTALL EVOLUTION WITH EITHER DURASPINE PRO 15 COLORS OR REVOLUTION COLORS. 16 Q. SO YOU CONTINUED TO SUPPLY A PRODUCT THAT YOU BELIEVE IS 17 DEFECTIVE TO YOUR CUSTOMERS? 18 A. FOR CLARIFICATION, AND THIS IS WHAT I SAID TO YOU IN THE 19 DEPOSITION IS THAT I'VE NEVER BEEN CONCERNED ABOUT THE SAFETY 20 ISSUE. THE ISSUE WITH THE FIBER IS SIMPLY A QUESTION OF 21 LONGEVITY AND THE INSTALLATION OF A NEW FIELD AT NO COST WE 22 FELT THAT WE WOULD BE ABLE TO SATISFY THE WARRANTY PERIOD OF 23 EIGHT YEARS WITH EVOLUTION GREEN WITH DURASPINE PRO OR 24 REVOLUTION COLORS AND THEREFORE WE WOULD BE HONORING OUR 25 WARRANTY WITH INCLUDING THE EVOLUTION GREEN. 27 1 Q. I JUST WANT TO UNDERSTAND, THOUGH BUT IN AUGUST OF 2012 2 DID YOU CONSIDER THE FIBER TO BE DEFECTIVE? 3 A. I CONSIDERED THAT IT WOULDN'T BE DEFECTIVE IN THE SENSE 4 THAT IT WOULD NOT LAST THE EIGHT YEARS THAT WE WERE OFFERING 5 OUR CUSTOMERS FROM A WARRANTY POINT OF VIEW. IT WOULD LAST THE 6 PERIOD THAT WOULD BE REQUIRED ON A REPLACEMENT BASIS TO GET 7 FROM THE TIME OF THE INSTALLATION OF THE REPLACEMENT FIELD TO 8 THE END OF THE WARRANTY PERIOD. 9 Q. DID YOU TELL YOUR CUSTOMERS WHEN YOU WERE GOING TO REPLACE 10 A FIELD THAT YOU FILED A LAWSUIT AND THAT YOU WERE CLAIMING 11 THIS FIBER WAS DEFECTIVE? DID YOU INFORM THEM OF THAT? 12 A. MOST CUSTOMERS WERE AWARE OF THE FACT THAT WE FILED THE 13 LAWSUIT AGAINST TENCATE RELATED TO THE EVOLUTION FIBER. 14 Q. ARE YOU SAYING THE SCHOOL DISTRICTS AND THE PARK DISTRICTS 15 ALL KNEW ABOUT THIS LAWSUIT? 16 A. MOST OF OUR COMPETITORS HAVE MADE A BIG ISSUE OUT OF THIS 17 LAWSUIT SO MY BELIEF IS THAT MOST CUSTOMERS ARE AWARE OF THE 18 LAWSUIT. 19 Q. BUT I ASKED DID YOU TELL HIM? DID YOU SIR, YOUR PEOPLE, 20 YOUR SALESPEOPLE WHEN YOU WERE MAKING THE INSTALLATION, DID YOU 21 SAY, LOOK, I'M GOING TO GIVE YOU FIBER BUT LOOK IT'S DEFECTIVE 22 BECAUSE WE ARE SUING OVER THIS FIBER, DID YOU TELL THEM THAT? 23 A. WE TOLD THEM THEY WERE GETTING THE SAME FIBER THAT HAD NOT 24 MET THE INITIAL WARRANTY PERIOD. 25 Q. DID YOU TELL THEM THE FIBER WAS DEFECTIVE? 28 1 A. NOT IN THOSE WORDS. 2 Q. WHEN DID YOU FILE THIS LAWSUIT? DO YOU REMEMBER THE DATE? 3 I IF I SAID MARCH 1ST, 2011, WOULD THAT BE CORRECT? 4 A. I ACTUALLY DON'T RECALL THE EXACT DATE. 5 Q. WELL, IF YOU WERE TO ASSUME THAT IT WAS MARCH 1 -- FIRST 6 WEEK OF MARCH 2011, WOULD IT SURPRISE YOU THAT AT THE TIME YOU 7 FILED THIS LAWSUIT CLAIMING THAT EVOLUTION WAS DEFECTIVE THAT 8 YOUR PEOPLE WERE STILL INSTALLING AS MANY AS 41 FIELDS? 9 A. NO. 10 Q. THAT WOULDN'T SURPRISE YOU? 11 A. NO. 12 Q. SO THE TRUTH IS YOU WEREN'T ONLY REPLACING FIELDS, YOU 13 CONTINUED TO INSTALL NEW FIELDS EVEN THOUGH YOU BELIEVED 14 SUPPOSEDLY THAT OUR FIBER WAS DEFECTIVE; IS THAT RIGHT? 15 A. WE IN THE PUBLIC BID PROCESS YOU HAVE A VERY -- A DETAILED 16 SPECIFICATION RELATED TO -- AND IT WOULD INCLUDE THE EVOLUTION 17 FIBER. SO OUR CHALLENGE WAS IS TO NOT COMPLY WITH THE 18 SPECIFICATION AND CREATE A PROBLEM FOR THE SCHOOL BY THROWING 19 THE BID PROCESS UP. OUR INTENTION AND WE WERE AWARE OF IT WHEN 20 WE INSTALLED THOSE FIELDS THAT IF WE NEEDED TO HONOR THE 21 WARRANTY BECAUSE OF UV DEGRADATION WE STOOD READY TO DO THAT. 22 Q. YOU TOOK MONEY AND YOU PUT IT IN YOUR POCKET, DIDN'T YOU? 23 YOU PUT IT IN FIELDTURF'S POCKET AND CONTINUED TO INSTALL THESE 24 FIELDS AND MAKE A PROFIT? YOU MADE PROFITS FROM THOSE FIELDS, 25 DIDN'T YOU, SIR? 29 1 A. YES. 2 Q. EVEN THOUGH THE COMPANY BELIEVED THEY WERE INSTALLING 3 DEFECTIVE PRODUCTS, TRUE? 4 A. WE KNEW WE STOOD READY TO STAND BY OUR WARRANTY AND WE 5 HAVE. 6 Q. MR. KAPLAN WAS TALKING ABOUT ALL THE STEPS YOU TOOK TO 7 FIND A REASONABLE LAW FIRM SO YOU COULD MITIGATE THE LEGAL 8 EXPENSE. REMEMBER THOSE QUESTIONS? 9 A. YES. 10 Q. AND THAT THEY TOOK A 10 PERCENT DISCOUNT AND KEPT THEIR 11 RATES LOCKED. REMEMBER THAT? 12 A. YES. 13 Q. DO YOU KNOW HOW -- WHAT MR. KAPLAN'S HOURLY RATE IS? 14 A. I DO. 15 Q. TELL THE JURY WHAT HIS RATE IS? 16 A. IT'S 850, 10 PERCENT LESS THAN 850 SO SLIGHTLY UNDER $800. 17 Q. WELL, I GOT HIS BILLS. HE CHARGES $895 PER HOUR. ARE YOU 18 TELLING THIS JURY YOU CONSIDER THAT TO BE A MITIGATING LOW 19 HOURLY RATE? 20 A. FOR THE TYPE OF REPRESENTATION WE NEED IN THIS TYPE OF 21 COMPLEX CIVIL LITIGATION IN ORDER TO GIVE OURSELVES THE BEST 22 CHANCE OF RECOVERY ON THESE SIGNIFICANT DAMAGES, I THINK IT'S 23 THE MARKET RATE. 24 Q. WELL, I TELL YOU I FEEL VERY INADEQUATE. 25 THE COURT: NO COMMENTS, MR. CREMER. 30 1 MR. CREMER: SORRY, JUDGE. 2 BY MR. CREMER: 3 Q. YOU TALKED ABOUT YESTERDAY YOU SAID YOU KNOW WE ARE A 4 SMALL COMPANY. YOU SAID THAT YESTERDAY. YOU VOLUNTEERED THAT 5 EVIDENCE? 6 A. I DID. 7 Q. WELL, YOU CERTAINLY ARE PART OF A HUGE COMPANY, AREN'T 8 YOU? 9 A. YEAH, WE ARE PART OF THE TARKETT GROUP, YES. 10 Q. AND HOW MUCH OF THE TWO BILLION DOLLARS IN TURN OVER OF 11 THE TARKETT GROUP WAS YOUR COMPANY RESPONSIBLE FOR? 12 A. FIELDTURF ITSELF? 13 Q. YES. 14 A. ABOUT 200 MILLION. 15 Q. THAT'S YOUR DEFINITION OF A SMALL COMPANY? 16 A. WITH A 50 MILLION DOLLARS LAWSUIT, YES. 17 Q. AND WHERE EXACTLY -- HOW MANY PEOPLE DO YOU EMPLOY ALL 18 OVER THE WORLD? 19 A. NOW, CLOSE TO A THOUSAND. 20 Q. THAT'S A SMALL COMPANY, ISN'T IT? 21 A. WITH A LAWSUIT OF THIS SIZE, I DEEMED IT AS A RELATIVELY 22 SMALL. 23 MR. CREMER: I HAVE NO FURTHER QUESTIONS. 24 THE COURT: REDIRECT, MR. KAPLAN? 25 MR. KAPLAN: YES, YOUR HONOR. 31 1 REDIRECT EXAMINATION 2 BY MR. KAPLAN: 3 Q. MR. DALIERE, YESTERDAY IN THE CROSS-EXAMINATION MR. CREMER 4 ASKED YOU A NUMBER OF QUESTIONS ABOUT THE NUMBER OF HOURS 5 FIELDTURF'S CUSTOMERS USED THEIR FIELDS AND I'D LIKE FOCUS A 6 FEW QUESTIONS ON THAT, SIR. ARE YOU FAMILIAR WITH STADIUM 7 FIELDS? 8 A. I AM. 9 Q. WHAT ARE STADIUM FIELDS? 10 A. SO STADIUM FIELDS WOULD BE ANYTHING FROM, YOU KNOW THE 11 STADIUM IN AT OHIO STATE TO THE STADIUM AT UNIVERSITY OF TEXAS 12 AS WELL AS SOME OF THE PICTURES WE SAW YESTERDAY ALDINE 13 INTEGRATED SCHOOL DISTRICT THAT WAS A STADIUM FIELD WE WERE 14 LOOKING AT THERE. 15 Q. WELL AS A TYPICALLY MATTER, GENERAL MATTER DO STADIUM 16 FIELDS GET A LOT OF USE? 17 A. TYPICALLY NO. 18 Q. COUNSELED ELABORATE ON THAT JUST A BIT? 19 A. THEY DON'T TYPICALLY PRACTICE ON THEIR STADIUM FIELDS THEY 20 USE PRACTICE FIELDS FOR THOSE AND AS A RESULT THEY -- YOU KNOW, 21 THEY CAN BE USED MAYBE JUST MUCH LESS OVER THE COURSE OF A WEEK 22 OR OVER THE COURSE OF A YEAR. 23 Q. ARE ANY OF THE FIELDS AT ISSUE IN THIS CASE STADIUM 24 FIELDS? 25 A. YES. 32 1 Q. AND WERE ANY OF THE FIELDS FROM WHICH THE PHOTOGRAPHS THAT 2 WE HAVE SHOWN YESTERDAY WERE TAKEN WERE STADIUM FIELDS? 3 A. YES, I BELIEVE THERE WERE TWO. I BELIEVE THE ALDINE 4 INTEGRATED SCHOOL DISTRICT WAS AND I BELIEVE ONE OTHER WAS 5 MAYBE THE LEGACY CHRISTIAN ACADEMY. 6 Q. AND WHAT ABOUT DAYTON ISD? 7 A. AND DAYTON ISD WAS ONE AS WELL. 8 Q. NOW YOU MENTIONED YESTERDAY, SIR, THAT YOU HAVE VISITED 9 FAILING EVOLUTION FIELDS. NOW, ON WHAT PARTS OF THE FIELDS 10 THAT YOU'VE INSPECTED AND VISITED HAVE YOU FOUND DEGRADED 11 FIBERS? 12 MR. CREMER: OBJECTION. FOUNDATION. 13 THE COURT: OVERRULED. 14 THE WITNESS: SO AS APPEARED IN THE PICTURE I THINK 15 THE PICTURES TELL THE STORIES F YOU LOOKED AT THE CORNER OF THE 16 LEGACY CHRISTIAN ACADEMY FIELD WHERE YOU HAD THE GREEN THE 17 YELLOW AND THE WHITE IT'S THE CORNER OF THE END ZONE. THOSE 18 ARE TYPICALLY I MEAN UNLESS YOUR TEAM IS REALLY GOOD SCORING A 19 LOT OF TOUCHDOWNS THOSE AREN'T AREAS WHERE YOU ARE GOING TO 20 HAVE A LOT OF USE SO THE FIBER FAILURE BASED ON THE UV YOU KNOW 21 WAS HAPPENING ALL OVER THE FIELD IN HIGH USE AREAS AND LOW USE 22 AREAS AND WHEN YOU LOOK AT AN ACTUAL GRASS FIELDS YOU ARE GOING 23 TO HAVE WHAT WE CALL THE BAR BELL EFFECT WHICH IS YOU ARE GOING 24 TO IS WEAR DOWN THE MIDDLE YOU ARE GOING TO HAVE WEAR IN HIGH 25 USE AREAS THAT'S NOT THE PATTERN OF FAILURE THAT WE ARE SEEING 33 1 WITH THE EVOLUTION FIBER. 2 BY MR. KAPLAN: 3 Q. AND SO JUST TO BE VERY SPECIFIC ABOUT IT ARE END ZONES OF 4 AMERICAN FOOTBALL FIELDS TYPICALLY HIGH USE AREAS? 5 A. ONLY FOR VERY GOOD TEAMS. 6 Q. AND JUST TO FINISH THIS POINT, HAS FIELDTURF INSTALLED 7 INDOOR FIELDS USING EVOLUTION FIBER? 8 A. WE HAVE. 9 Q. AND YOU MENTIONED A NUMBER? 10 A. YEAH, 55. 11 Q. AND WHAT DEGREE OF USE DO THE INDOOR FIELDS TYPICALLY GET 12 COMPARED WITH OUT DOOR FIELDS? 13 A. TYPICALLY HIGH USE BECAUSE AGAIN YOU ARE PROTECTED FROM 14 THE WEATHERS. YOU CAN PRACTICE IN ALL SEASONS AND IN ALL 15 CLIMATES, AND THEY ARE LIGHTED SO YOU CAN PRACTICE IN THE 16 EVENINGS AS WELL. 17 Q. NOW, FORGIVE ME IF THIS IS AN OBVIOUS POINT, BUT ARE 18 INDOOR FIELDS EXPOSED TO UV RADIATION? 19 A. NO. 20 Q. ARE ANY OF THE EVOLUTION FIELDS AT ISSUE IN THIS CASE 21 INDOOR FIELDS? 22 A. NO. 23 Q. IF THE FIELD DISINTEGRATION RELATED TO AN AMOUNT OF USE, 24 WOULD YOU EXPECT THE STADIUM FIELDS ENDS ZONES OR INDOOR FIELDS 25 TO SHOW THE SAME PATTERN OF DISINTEGRATION OF THE FIBER AS 34 1 OTHER FIELDS? 2 MR. CREMER: OBJECTION. CALLS FOR EXPERT TESTIMONY. 3 THE COURT: OVERRULED. I'LL LET MR. DALIERE TESTIFY 4 AS A LAYPERSON BASED UPON HIS OWN PERSONAL OBSERVATIONS AND 5 EXPERIENCE, NOT AS AN EXPERT. 6 THE WITNESS: CAN YOU ASK THE QUESTION AGAIN, BRUCE? 7 BY MR. KAPLAN: 8 Q. IF THE FIELD DISINTEGRATION HAS BEEN OBSERVED IN THIS CASE 9 OF THE EVOLUTION FIBER RELATED TO THE AMOUNT OF USE, WOULD YOU 10 EXPECT THE STADIUM FIELDS' END ZONES IN INDOOR FIELDS TO SHOW 11 THE SAME PATTERN OF WEAR AS OTHER FIELDS? 12 A. NO. 13 Q. AND IN FACT, THEY DO NOT SHOW THE SAME PATTERN? 14 A. NO. WE DON'T HAVE THE DISINTEGRATION OF THE FIBER IN 15 INDOOR FIELDS. WEAR, IT DOES SHOW WEAR. THEY LAYOVER JUST 16 LIKE THE OUTDOOR FIELDS AND YOU DO GET SOME FIBRILLATION OF THE 17 FIBER JUST AS WE DID WITH THE SLIT -- WITH THE SLIT FILM. BUT 18 WHAT WE DON'T SEE IS THE BREAKING OFF AND THE CRACKING AND THE 19 DISINTEGRATION DOWN TO THE INFILL LEVEL. 20 Q. YOU TESTIFIED YESTERDAY, MR. DALIERE, THAT REVOLUTION, 21 YOUR PRODUCT, HAS A HIGHER FACE WEIGHT THAN EVOLUTION. WHY 22 DOES FIELDTURF MANUFACTURE REVOLUTION USING A SLIGHTLY HIGHER 23 FACE WEIGHT? 24 A. SO THERE'S TWO REASONS. THE FIRST REASON IS THE BRILLIANT 25 AESTHETIC. IT WAS A DESIRE TO MAKE AGAIN OUR FIELDS LOOK A 35 1 LITTLE BIT FULLER AND MORE GREEN AND SHOW A LITTLE BIT LESS OF 2 THE INFILL. AND THE SECOND IS IS THAT TENCATE FROM A 3 COMPETITIVE MATTER HAS BEEN PUSHING INCREASED FACE WEIGHT IN 4 THE MARKETPLACE AS A FIBER SUPPLIER. NOW, AS A FIBER SUPPLIER 5 OURSELVES, WE'RE HAPPY FOR -- TO SELL MORE FIBER. BUT WE THINK 6 THE RIGHT ANSWER FOR THE CUSTOMER IS A HEAVY INFILL SYSTEM 7 WHERE THE ATHLETE AGAIN GETS IN AND OUT. SO OUR INCREASE WAS 8 REALLY JUST ABOUT AESTHETICS. 9 Q. HOW DOES THE FACE WEIGHT OF FIELDTURF'S SLIT FILM FIELDS 10 COMPARE TO THE FACE WEIGHT OF ITS EVOLUTION FIELDS? 11 A. SO THE TWO-AND-A-HALF-INCH SLIT FILM IS A 33-OUNCE 12 PRODUCT, AND THAT'S AGAIN PER SQUARE YARD SO FOR A 13 THREE-FOOT-BY-THREE-FOOT AREA. OUR EVOLUTION PRODUCT WAS 36 14 OUNCES SO 10 PERCENT MORE. BUT AGAIN AS I MENTIONED YESTERDAY 15 FOR THE AMOUNT THAT IS EXPOSED ABOVE THE INFILL ON A 16 SQUARE-YARD BASIS THAT'S REALLY JUST, YOU KNOW, ABOUT AN OUNCE 17 PER SQUARE YARD. AND THEN OUR REVOLUTION PRODUCT AS I 18 DESCRIBED FOR AESTHETIC REASONS WE HAVE INCREASED TO 40 OUNCES. 19 Q. JUST TO BE CLEAR, THOUGH, SIR, THE FACE WEIGHT OF YOUR 20 SLIT FILM FIELDS IS IT HIGHER OR LOWER THAN THE FACE WEIGHT OF 21 -- 22 A. IT'S 10 PERCENT LOWER. 23 Q. AND YOU TESTIFIED YESTERDAY THAT FIELDTURF HAS A SMALL 24 NUMBER OF WARRANTY CLAIMS RELATING TO SLIT FILM FIELDS. WERE 25 ANY OF THOSE CLAIMS RELATED TO FIBER DEGRADATION? 36 1 A. WELL, MR. CREMER SHOWED THE CLAIM HISTORY GOING BACK 2 BEFORE 2005. AND THE REALITY IS IS WHILE THE CLAIM INCIDENCE 3 WAS QUITE HIGH THE TYPE OF CLAIMS THAT WE WERE GETTING WAS -- 4 THEY WERE MINOR CLAIMS RELATED TO INN LACE WHICH ARE ALWAYS 5 COMPLICATE TODAY KEEP IN PLACE SO YOU HAVE TO GO BACK AND GLUE 6 THEM DOWN AND MAKE SURE THEY ARE WELL CARED FOR OR THERE WERE 7 SIMPLE MAINTENANCE ISSUES. SO WE HAVE HAD A HIGH INCIDENCE OF 8 CLAIMS, BUT THE NATURE OF THE CLAIMS HAVE CHANGED DRAMATICALLY. 9 SO YES, WE DID HAVE SLIT FILM AND YES, WE DID HAVE A FEW 10 INCIDENTS OF NON-GREEN DEGRADATION RELATED TO THE SLIT FILM, 11 BUT THE CHARACTERIZATION THAT THE PATTERN HAS REMAINED THE SAME 12 IS NOT RIGHT AT ALL. THE PICTURE HAS CHANGED DRAMATICALLY AND 13 YOU KNOW, I WOULD CITE AGAIN IS THAT WE HAVE 125 FIELDS IN 14 SOUTHERN CALIFORNIA MADE WITH SLIT FILM. THAT ARE OVER EIGHT 15 YEARS OLD, SOME I SAW LAST YEAR WHERE CARSON PALMER PLAYED AT 16 MAITRE'D IT'S 12 YEARS OLD AND IT LOOKS GREAT. 17 Q. I'D LIKE TO RETURN FOR A MINUTE TO AN EXHIBIT THAT YOU 18 WERE SHOWN YESTERDAY, PLAINTIFF'S EXHIBIT 1487 FOR 19 IDENTIFICATION ON WHICH THE COURT RESERVED DECISION WHETHER TO 20 ADMIT IT. AND LET ME IF YOU CAN GET THAT IN FRONT OF YOU? 21 THE CLERK: IT'S RIGHT HERE. 22 THE WITNESS: I DON'T HAVE IT HERE. THESE ARE THE 23 DEFENDANT'S EXHIBITS. 24 BY MR. KAPLAN: 25 Q. THIS IS IT HERE. 37 1 FIRST LET ME ASK YOU DO YOU HAVE DIRECT KNOWLEDGE AS CEO 2 OF FIELDTURF AS TO HOW MUCH MONEY FIELDTURF HAS ALREADY SPENT 3 MEANING PAID NOT INCLUDING WHATEVER THE FEES OF THIS TRIAL 4 MIGHT BE ON THE INVESTIGATION AND LITIGATION OF THIS CLAIM 5 AGAINST TENCATE SINCE IN THE FOUR-YEAR PERIOD THAT IT SPANS? 6 A. YES. I MEAN IT'S BEEN A SIGNIFICANT COST ITEM FOR THE 7 BUSINESS OVER THE LAST FOUR YEARS. 8 Q. HOW MUCH HAS FIELDTURF ACTUALLY PAID IN THIS FOUR-YEAR 9 PERIOD TO INVESTIGATE AND PURSUE ITS CLAIMS IN THIS CASE? 10 A. 7.9 MILLION DOLLARS. 11 Q. AND HOW MUCH OF THAT HAS BEEN PAID TO FRIEDMAN KAPLAN? 12 A. 6.3. 13 Q. OVER THE FOUR YEARS? 14 A. THAT'S CORRECT. 15 Q. NOW, THIS EXHIBIT, HAS THAT -- WAS THAT PREPARED -- UNDER 16 WHOSE DIRECTION WAS IT PREPARED? 17 A. PREPARED UNDER MY DIRECTION. I ASKED THE LEGAL TEAM 18 WITHIN FIELDTURF AND I ASKED THE FINANCE TEAM TO WORK TOGETHER 19 TO ASSEMBLE AND AGGREGATE THE EXPENSES OVER THE FOUR-YEAR 20 PERIOD. 21 Q. WHAT DID YOU DO AFTER THEY -- YOUR INTERNAL PERSONNEL HAD 22 COME UP WITH THIS INFORMATION THAT'S ON THE CHART? 23 A. REVIEWED IT. 24 Q. DO YOU RE SUE IT IN ISOLATION OR DID YOU REVIEW IT WITH 25 OTHERS? 38 1 A. I REVIEWED IT WITH THE PEOPLE THAT HAD PULLED IT TOGETHER. 2 Q. CAN YOU ATTEST THAT IT'S AN ACCURATE STATEMENT OF THE 3 CHARGES AND EXPENSES OF THE VARIOUS LEGAL EXPENSES, EXPERT FEES 4 AND OTHER EXPENSES RELATED TO YOUR PURSUING FIELDTURF'S CLAIMS 5 AGAINST TENCATE? 6 A. YES. 7 Q. DOES THE CHART ACCURATELY REFLECT HOW MUCH MONEY FIELDTURF 8 HAS SPENT PURSUING ITS CLAIMS AGAINST TENCATE? 9 A. YES. 10 Q. I MOVE IT INTO EVIDENCE, YOUR HONOR? 11 THE COURT: I WILL RESERVE RULING AGAIN. 12 MR. CREMER: I OBJECT THERE ARE SPECIFIC REQUIREMENTS 13 UNDER THE STATUTE FOR PROOF OF REASONABLE EXPENSE. 14 MR. KAPLAN: YOUR HONOR, JUST TORE CLEAR, THERE WILL 15 BE A WITNESS. MY PARTNER KATHERINE PRINGLE -- 16 THE COURT: MR. KAPLAN, I HAVE RULED. 17 MR. KAPLAN: YES, YOUR HONOR. 18 THE COURT: OR I HAVE REFUSED TO RULE I SHOULD SAY. 19 MR. KAPLAN: I GET IT, YOUR HONOR. 20 BY MR. KAPLAN: 21 Q. JUST A COUPLE MORE QUESTIONS BASED ON WHAT SOME 22 EXAMINATION WAS TODAY. THERE WAS REFERENCE TO NORMAL WEAR AND 23 TEAR. BASED -- AND WHETHER THAT'S COVERED BY THIS WARRANTY OR 24 THAT WARRANTY. BASED ON YOUR INSPECTION AND OBSERVATION OF 25 FAILED FIELDS AND FAILING EVOLUTION FIBER, DID YOU CONCLUDE 39 1 PERSONALLY THAT THE FAILURE AND DETERIORATION YOU OBSERVED WAS 2 A MATTER OF NORMAL WEAR AND TEAR? 3 A. NO. 4 MR. CREMER: OBJECTION. CALLS FOR LEGAL OPINION. 5 THE COURT: OVERRULED. I WILL PERMIT MR. DALIERE TO 6 TESTIFY AS LAYPERSON BASED ON HIS OWN PERSONAL OBSERVATIONS AND 7 EXPERIENCE, NOT AS AN EXPERT. 8 BY MR. KAPLAN: 9 Q. AND AS HIS HONOR HAS LIMITED IT, WHAT WAS BASED ON YOUR 10 PERSONAL OBSERVATIONS AND INSPECTIONS YOUR CONCLUSION AS TO 11 THAT MATTER? 12 A. THAT IT WASN'T RELATED TO NORMAL WEAR AND TEAR AS I 13 DESCRIBED YESTERDAY THE PATTERN OF DEGRADATION AND THE FACT 14 THAT OUR SLIT FILM WHICH -- AND OUR INDOOR MONOFILAMENT FIELDS 15 WEREN'T FAILING THAT WAY IS THAT IT DIDN'T HAVE ANYTHING TO DO 16 WITH USAGE OR NORMAL WEAR AND TEAR. IT HAD EVERYTHING TO DO 17 WITH THE LACK OF -- THE LACK OF UV STABILIZATION. 18 Q. TO A DIFFERENT MATTER, TO YOUR KNOWLEDGE, DO ANY OF 19 FIELDTURF'S AGREEMENTS WITH TENCATE OR MATTEX BEFORE IT EXCLUDE 20 WARRANTY FOR THINGS CALLED CUSTOM COLORS? 21 A. NOT THAT -- NO. 22 Q. AND WHAT AN IS A CUSTOM COLOR? 23 A. SO WE HAVE OUR GREEN COLOR AND THEN WE HAVE 15 WHAT WE 24 REFER TO AS STANDARD COLORS. SO REDS, BLUES, GOLD'S, THE 25 TEAM'S COLORS TYPICALLY. AND THEY'RE -- AND THEN ON OCCASION 40 1 -- AND IT'S QUITE RARE -- THAT A CUSTOMER WILL COME TO US AND 2 SAY I NEED LET'S SAY THE UNIVERSITY OF WASHINGTON PURPLE OR I 3 NEED THE RED THAT IS JUST THE UNIVERSITY OF WISCONSIN RED AND 4 THEREFORE THEY WANT US TO MATCH THAT EXACT COLOR ON THEIR 5 UNIFORM AND THEN WE GO THROUGH AN EXERCISE OF MATCHING THAT 6 CUSTOM COLOR BUT THAT IS EXTREMELY RARE. 7 Q. IS WHITE A CUSTOM COLOR? 8 A. NO. 9 Q. IS YELLOW A CUSTOM COLOR? 10 A. NO. 11 Q. NOW THE FINAL COUPLE QUESTIONS. DID THERE COME A POINT 12 WHEN AFTER YOU WERE CEO YOU NOTICED A SPIKE IN NON-GREEN CLAIMS 13 RELATED TO A PARTICULAR TYPE OF FIBER? 14 A. YES. AND I MENTIONED THAT IN THE WARRANTY REVIEW DOCUMENT 15 THAT IT APPEARED THAT THERE WAS AN INCREASE IN NON-GREEN CLAIMS 16 ASSOCIATED WITH THE EVOLUTION FIBER. BUT AS I BECAME CEO AS I 17 MENTIONED YESTERDAY, THAT DYNAMIC, SO THE AMOUNT OF NON-GREEN 18 CLAIMS REALLY EXPLODED AND FORCED THE INVESTIGATION THAT'S, YOU 19 KNOW, LED TO THIS TRIAL. 20 MR. KAPLAN: NO FURTHER QUESTIONS, YOUR HONOR. 21 THE COURT: RECROSS STRICTLY LIMITED TO THE SCOPE OF 22 THE REDIRECT? 23 MR. CREMER: NO THANK YOU, YOUR HONOR. 24 THE COURT: ALL RIGHT. MR. KAPLAN, CALL YOUR NEXT 25 WITNESS. 41 1 MR. KAPLAN: FIELDTURF CALLS CHARLES DANIELS. 2 THE CLERK: SIR IF YOU'LL RAISE YOUR RIGHT HAND, 3 PLEASE. 4 (WITNESS PLACED UNDER OATH BY THE CLERK.) 5 THE CLERK: PLEASE HAVE A SEAT, STATE YOUR NAME FOR 6 THE RECORD. 7 THE WITNESS: CHARLES A DANIELS. 8 DIRECT EXAMINATION 9 10 BY MR. KAPLAN: 11 Q. MORNING, DR. DANIELS. 12 A. MORNING. 13 Q. WHAT IS YOUR CURRENT OCCUPATION, SIR? 14 A. I CURRENTLY TEACH AT TWO UNIVERSITIES IN OHIO. I ALSO DO 15 SOME CONSULTING WORK. 16 THE COURT: MR. DANIELS IT'S VERY HARD TO HEAR IN 17 THIS COURTROOM YOU ARE GOING TO HAVE TO TALK RIGHT INTO THAT 18 MICROPHONE. 19 THE WITNESS: THANK YOU, SIR. 20 THE COURT: FOR EVERYBODY TO HEAR YOU. 21 THE WITNESS: I WILL REPEAT THE ANSWER. I TEACH AT 22 TWO UNIVERSITIES IN OHIO, LORAIN COUNTY COMMUNITY COLLEGE AND 23 THE UNIVERSITY OF AKRON. AND I ALSO DO SOME CONSULTING WORK. 24 BY MR. KAPLAN: 25 Q. WHAT DO YOU TEACH, SIR? 42 1 A. I TEACH CHEMISTRY AT THE COMMUNITY COLLEGE, TWO CLASSES, 2 TWO DIFFERENT CLASSES. AND AT THE UNIVERSITY OF AKRON I TEACH 3 SOME CUSTOM CLASSES IN RUBBER CHEMISTRY AND PROPERTIES OF 4 PLASTICS AND RUBBER. 5 Q. WHERE DID YOU GO TO SCHOOL, DR. DANIELS? 6 A. I RECEIVED MY BACHELOR'S DEGREE FROM UTICA COLLEGE OF 7 SYRACUSE UNIVERSITY AND LATER ON WENT TO GRADUATE SCHOOL 8 RECEIVING A MASTER'S AND PH.D. FROM CASE WESTERN RESERVE 9 UNIVERSITY. THOSE DEGREES WERE IN CHEMISTRY AND POLYMER 10 SCIENCE. 11 Q. AND POLYMER SCIENCE, JUST I THINK WE ARE GETTING TO KNOW 12 WHAT IT IS, BUT WHAT IS POLYMER SCIENCE, SIR? 13 A. POLYMER SCIENCE IS THE STUDY OF HOW PLASTICS ARE MADE, HOW 14 THEY BEHAVE, THEIR STRUCTURE, THEIR PROPERTIES. 15 Q. AND POLYMER SCIENCE IS? 16 A. THE STUDY OF POLYMERS. 17 Q. HAVE YOU PUBLISHED ANY WRITTEN WORK? 18 A. YES, I HAVE. I HAVE PUBLISHED 25 ARTICLES THAT HAVE BEEN 19 PEER REVIEWED, SEVERAL CHAPTERS IN TEXTBOOKS. I'M THE 20 CO-AUTHOR OF ANOTHER TEXTBOOK. 21 Q. AND YOU SAY PEAR REVIEWED. COULD YOU EXPLAIN TO THE COURT 22 AND THE JURY WHAT IT MEANS FOR AN ARTICLE OR A CHAPTER TO BE 23 PEER REVIEWED. 24 A. YES. IN THE PUBLICATION PROCESS IN THE SCIENTIFIC 25 LITERATURE WHEN YOU WRITE AN ARTICLE THAT ARTICLE HAS TO BE 43 1 SUBMITTED TO OTHER EXPERTS IN THE FIELD. AND THEY HAVE AN 2 OPPORTUNITY TO COMMENT AND ISSUE CORRECTIONS THAT THEY FEEL 3 THAT ARE PRESENT. AND ONLY UPON AGREEMENT BETWEEN THE 4 REVIEWING GROUP AND THE EDITOR OF THE JOURNAL IN WHICH IT'S 5 GOING TO BE PUBLISHED DOES THAT ARTICLE EVER GET PUBLISHED. 6 Q. HAVE ALL OF YOUR PUBLISHED ARTICLES BEEN PEER REVIEWED? 7 A. YES, THEY HAVE. 8 Q. NOW, DR. DANIELS, HAVE YOU IN THE COURSE OF YOUR CAREER 9 BEEN GRANTED ANY PATENTS BY THE UNITED STATES GOVERNMENT? 10 A. YES. I HAVE BEEN GRANTED FOUR PATENTS. 11 Q. AND TO WHAT -- IN WHAT FIELD OR AREA DO THEY RELATE? 12 A. THEY RELATE TO THE MANUFACTURE, MANUFACTURING PROCESSES OF 13 PLASTICS AND SOME MATERIALS THAT WE DEVELOPED TO BE 14 COMMERCIALIZED IN THE PLASTICS INDUSTRY. 15 Q. NOW, SINCE YOUR ACHIEVEMENT OF YOUR PH.D. DEGREE, WHERE 16 HAVE YOU WORKED, SIR? 17 A. WELL, MOST OF MY CAREER I HAVE BEEN WITH THE B F GOODRICH 18 COMPANY WHICH YOU MAY REMEMBER USED TO BE IN TIRES AND MANY 19 OTHER THINGS. IT'S SUBSEQUENTLY CHANGED A AND I WORKED UNDER 20 THE BANNER OF THE B F GOODRICH COMPANY FROM 1969 UNTIL 1993. 21 IN 93 THE DIVISION OF THE B F GOODRICH COMPANY, THE GEE ON 22 COMPANY WAS STARTED AS A SEPARATE COMPANY, A SPIN-OFF IS THE 23 TERM COMMONLY USED. AND FROM 93 UNTIL 97 I WAS IN VARIOUS 24 TECHNICAL POSITIONS WITH THAT COMPANY. AND IN 1997 WE FORMED A 25 WHOLLY OWNED SUBSIDIARY KNOWN AS POLYMER DIAGNOSTICS 44 1 INCORPORATED. THAT'S A LABORATORY THAT DOES TESTING. IT DOES 2 ANALYSES. IT DOES FAILURE ANALYSES. AND FROM 1997 UNTIL 2003 3 I REMAINED WITH POLYMER DIAGNOSTICS EVEN THOUGH THE OWNERSHIP 4 OF THAT COMPANY LATER CHANGED INTO A MERGER. SORRY THE FOR THE 5 COMPLICATIONS, CALLED THE POLY ONE CORPORATION WHICH IS THE 6 WORLD'S LARGEST COMPOUND DER OF PLASTICS MATERIALS. 7 Q. JUST BRIEFLY AS TO YOUR WORK AT B F GOODRICH, WHAT AREAS 8 DID YOU WORK IN? 9 A. I WORKED IN A NUMBER OF AREAS, MANY OF THE PLASTICS AND 10 RUBBER MATERIALS THAT B F GOODRICH MADE, WORKED IN THE RUBBER 11 INDUSTRY AND WE SOLD MATERIALS TO THE TIRE INDUSTRY. THEY WERE 12 IN A NUMBER OF DIFFERENT POLYMER PRODUCTS. 13 Q. TO WHAT POSITION DID YOU ATTAIN WITHIN B F GOODRICH? 14 A. I BECAME IN B F GOODRICH A RESEARCH AND DEVELOPMENT 15 DIRECTOR. 16 Q. AT GEE ON COMPANY WHAT IN GENERAL WAS YOUR AREA OF WORK? 17 A. WELL, THE SAME THING. I WAS THE DIRECTOR OF TECHNOLOGY 18 FOR THE G N COMPANY WHICH AT THE TIME WAS THE WORLD'S LARGEST 19 PRODUCER OF PVC PRODUCTS AND I ALSO HAD A CLOSE INTERACTION 20 WITH THE LATER TO BE FORMED POLYMER DIAGNOSTICS ORGANIZATION 21 WHICH I LATER RAN AS THEIR PRESIDENT. 22 Q. AND IN TERMS OF YOUR CONSULTING SINCE I THINK YOU SAID THE 23 YEAR WAS 2003 -- 24 A. YES. 25 Q. -- IN WHAT AREAS HAVE YOU CONSULTED? 45 1 A. PLASTICS AND PREDOMINANTLY IN THE AREA OF FAILURE 2 ANALYSIS, PERFORMANCE OF MATERIALS IN THE PLASTICS REALM. 3 Q. AND YOU MENTIONED YOUR TEACHING AT TWO UNIVERSITIES, 4 UNIVERSITY AND A COLLEGE IN OHIO. WHEN DID THAT TEACHING 5 BEGIN? 6 A. WELL, FULL TIME IT STARTED ABOUT -- I'M IN MY 11TH YEAR 7 DOING THAT. I DID SOME PART TIME BEFORE THEN BUT ONCE I HAD 8 MORE TIME TO PURSUE THAT IT'S BEEN -- WELL, AS I SAY I'M IN MY 9 11TH YEAR NOW. 10 Q. SO GIVE US YOUR -- IN INJURE ARITHMETIC FOR HOW MANY YEARS 11 HAVE YOU WORKED AND CONSULTED IN THE AREA OF POLYMERS AND 12 PLASTICS? 13 A. I THINK IT'S 45 YEARS. 14 Q. IN CONNECTION, DR. DANIELS, WITH YOUR VARIOUS POSITIONS, 15 HAVE YOU BEEN INVOLVED IN THE TESTING OF PLASTICS? 16 A. YES, I HAVE. 17 Q. AND HAVE YOU -- COULD YOU BRIEFLY DESCRIBE THAT 18 INVOLVEMENT. 19 A. WELL, I STARTED MY CAREER DOING TESTING IN THE LABORATORY. 20 I LATER SUPERVISED FOLKS WHO DID TESTING. AS I SAID, FROM 1997 21 UNTIL 2003 I WAS A PRESIDENT OF A COMPANY THAT DID ITS PRIMARY 22 ROLE IN TESTING OF PLASTICS. SO I'M VERY FAMILIAR WITH THE 23 TESTING OF PLASTICS, HAVING HANDS-ON EXPERIENCE AS WELL AS 24 SUPERVISORY EXPERIENCE IN THAT AREA. 25 Q. HAVE YOU EVER CONDUCTED WHAT'S CALLED TENSILE TESTING? 46 1 A. YES, I HAVE. 2 Q. AND FOR THE COURT AND JURY, WHAT IS TENSILE TESTING? 3 A. WELL, THE TENSILE TEST IS BASICALLY THE DETERMINATION OF 4 HOW MUCH FORCE IT TAKES TO STRETCH AND THEN SOMETIMES BREAK A 5 PIECE OF PLASTIC. 6 Q. AND ARE YOU FAMILIAR WITH THE PHENOMENON OF ULTRAVIOLET 7 RADIATION, SOMETIMES CALLED UV RADIATION? 8 A. YES. 9 Q. AND WHAT IS THAT? 10 A. WELL, THE ULTRAVIOLET RADIATION IS ONE OF THE HIGH ENERGY 11 PARTS OF NATURAL SUPPLEMENT. AND IT IS HIGH ENOUGH IN ENERGY I 12 THINK MOST OF US REALIZE TO CAUSE US TO PROTECT OURSELVES FROM 13 IT. IT'S THE PART OF THE SUNLIGHT SPECTRUM THAT CAN CAUSE SKIN 14 CANCER IF WE'RE NOT CAREFUL TO APPLY SCREEN ERRS TO OUR BODIES 15 ON A REGULAR BASIS IN SUNNY CLIMATES. 16 Q. WHAT -- SPEAKING ABOUT UV RADIATION, WHAT EFFECT CAN OR 17 DOES IT HAVE ON CHEMICAL BONDS? 18 A. IT IS SUFFICIENT IN ENERGY TO BREAK CHEMICAL BONDS, AND 19 THAT'S ONE OF THE REASONS WHY IT CAUSES A HEALTH EFFECTS AND 20 IT'S ONE OF THE REASONS WHY IT'S A NATURAL ENEMY OF PLASTICS. 21 Q. JUST BRIEFLY, EXPLAIN WHY IT IS THE NATURAL ENEMY OF 22 PLASTICS. 23 A. WELL, IN YOUR QUESTION YOU ASKED ME WHAT THE UV RADIATION 24 IS AND WHAT IT DOES. IT CAUSES MOLECULES TO VIBRATE AT A VERY 25 RAPID RATE. AND THAT VIBRATION CAN BE SUFFICIENT ENOUGH TO 47 1 ACTUALLY BREAK THE BONDS DOWN AND THAT CHANGES THE NATURE OF 2 THE CHEMICAL. IT CHANGES THE NATURE OF US IF WE ARE EXPOSED TO 3 TOO MUCH UV RADIATION. 4 Q. IS PART OF THE WORK OR BUSINESS OF POLYMER DIAGNOSTICS 5 INVOLVED IN WEATHERING TECHNOLOGY OR TESTING? 6 A. YES, WEATHERING TECHNOLOGY IS A GENERAL TERM THAT COVERS 7 THE EXPOSURE OF MATERIALS TO THESE RADIATION SPECTRUM AND PART 8 OF THAT WEATHERING TESTING IS UV PART OF IT IS NATURAL SUNLIGHT 9 IN AN ACCELERATED MANNER, YES. 10 Q. DR. DANIELS, ARE YOU FAMILIAR WITH THE TERM FAILURE 11 ANALYSIS? 12 A. I AM. 13 Q. AND WHAT IS FAILURE ANALYSIS? 14 A. A FAILURE ANALYSIS IS AN ATTEMPT TO DETERMINE THE ROOT 15 CAUSE OF WHY SOMETHING FAILS. AND THE SOMETHING IN QUESTION 16 I'VE BEEN INVOLVED WITH OVER THOSE YEARS HAS BEEN PLASTICS AND 17 RUBBER MATERIALS. 18 Q. HAVE YOU EVER CONDUCTED A FAILURE ANALYSIS? 19 A. YES, I HAVE, SEVERAL TIMES. 20 Q. AND HAS THAT ALSO BEEN PART OF YOUR WORK AS A CONSULTANT? 21 A. IT HAS. 22 Q. AND ON WHAT TYPES OF PRODUCTS HAVE YOU DONE FAILURE 23 ANALYSIS? 24 A. ON PLASTICS, SUCH AS POLYETHYLENES AND NYLONS AND PVC, 25 RUBBER MATERIALS, A NUMBER OF WHAT I'M GOING TO CALL POLYMER 48 1 SUBSTANCES, BIG MOLECULES. 2 Q. IN SOME INSTANCES HAVE YOU WORKED IN CONNECTION WITH 3 LITIGATION AS AN EXPERT WITNESS? 4 A. YES, I HAVE. 5 Q. IS IT A MAJOR PART OF YOUR CONSULTING PRACTICE? 6 A. NO. NO, IT'S NOT. I HAVE BEEN AN EXPERT WITNESS IN ABOUT 7 10 OR 15 CASES OVER THE PAST 10, 15 YEARS. 8 Q. AND HAVE YOU EVER BEEN CALLED TO TESTIFY? 9 A. I HAVE, TWICE. 10 Q. AND ON WHAT TOPICS HAVE YOU SERVED AS AN EXPERT WITNESS? 11 A. BASICALLY, THE FAILURE ANALYSIS OF PLASTICS. I THINK 12 THERE WAS ANOTHER CASE THAT INVOLVED SOME INTELLECTUAL PROPERTY 13 SITUATIONS, PATENT VIOLATIONS POTENTIALLY. 14 Q. HAS THE COURT EVER FOUND THAT YOU WERE NOT QUALIFIED TO BE 15 AN EXPERT WITNESS IN YOUR AREA OF SPECIALTY? 16 A. NO. 17 Q. HAVE YOU EVER BEEN QUALIFIED BY A COURT AT TRIAL AS AN 18 EXPERT WITNESS? 19 A. YES, IN THOSE TWO CASES. 20 Q. YOUR HONOR, I TENDER DR. DANIELS AS AN EXPERT ON THE 21 CHEMISTRY, TESTING AND FAILURE OF PLASTICS? 22 MR. PENDER: SUBJECT TO OUR PRIOR DAUBERT MOTION 23 THAT'S OUR ONLY OBJECTION. 24 THE COURT: ALL RIGHT. 25 MR. KAPLAN: MAY I PROCEED? 49 1 THE COURT: YES, SIR. 2 BY MR. KAPLAN: 3 Q. DR. DANIELS, DID THERE COME A TIME WHEN YOU WERE ASKED TO 4 UNDERTAKE AN ASSIGNMENT IN CONNECTION WITH THIS MATTER, THIS 5 CASE? 6 A. YES. I BELIEVE IT WAS IN THE SPRING OF 2011. 7 Q. AND WHAT WERE YOU ASKED TO DO OR CONSIDER? 8 A. WELL, I WAS ASKED TO DETERMINE WHETHER THERE WAS A ROOT 9 CAUSE OF THE PREMATURE FAILURE OF THE EVOLUTION FIBERS IN 10 QUESTION. AND WE STARTED WITH A CLEAN SLATE, AND THAT'S WHAT I 11 DID. 12 Q. AND OF COURSE, YOU WERE AND ARE BEING PAID FOR THIS WORK? 13 A. YES. 14 Q. AND NOT DEPENDENT ON THE OUTCOME OF THE WORK? 15 A. NO, SIR. 16 Q. AND WHAT IS THE HOURLY RATE? 17 A. IT'S $250 AN HOUR. 18 Q. NOW, GENERALLY, DR. DANIELS, WHAT DID YOU DO TO ANALYZE 19 THE ISSUE PRESENTED TO YOU? 20 A. WELL, FIRST THING I DID WAS SOME BACKGROUND WORK. AND 21 THAT BACKGROUND WORK INCLUDED REVIEW OF DEPOSITIONS FROM FOLKS 22 AT TENCATE AND FROM FIELDTURF. I PERSONALLY VISITED SOME 23 FIELDS. I REVIEWED A NUMBER OF FIELD REPORTS. I BELIEVE THERE 24 WERE SOME 450 FIELD REPORTS THAT I REVIEWED. 25 Q. YOU REVIEWED THEM ALL? 50 1 A. EVERY LAST ONE, YES, SIR. 2 Q. YOU MAY CONTINUE. 3 A. WELL, AND I AM ON THE BASIS OF THOSE REVIEWS OF 4 DEPOSITIONS AND SOME LITERATURE WORK ON THE BEHAVIOR OF 5 POLYETHYLENE MATERIALS IN NATURAL SUNLIGHT I WAS ABLE TO PUT 6 FORTH A WORK PLAN AND EXECUTED IT. 7 Q. NOW, IN CONNECTION WITH YOUR WORK IN THIS MATTER, DID 8 FIELDTURF MAKE ANY INFORMATION AVAILABLE TO YOU? 9 A. WELL, THEY MADE SAMPLES AVAILABLE TO ME FOR SURE. THESE 10 WERE SAMPLES OF DETERIORATED FIELDS AND SOME THAT WE'RE GOING 11 TO CALL -- I CALLED RETAINS. THESE WERE THE EXACT SAME PIECES 12 OF THE CARPET BUT THEY HAD NEVER BEEN INSTALLED. IT'S KIND OF 13 LIKE THE PIECE OF CARPET THAT THE CARPET INSTALLER GIVES YOU 14 WHEN YOU HAVE CARPETING DONE TO YOUR HOME. YOU MAY KEEP A 15 PIECE FOR REPAIR. AND SO WE HAD THESE MATCHES OF FIELDS THAT 16 HAD UNDERGONE THIS PREMATURE DEGRADATION AND THOSE THAT HAVE 17 NEVER SEEN THE SUNLIGHT IN THAT PARTICULAR INSTALLATION. 18 Q. SO JUST TO BE CLEAR, I TAKE IT FROM YOUR ANSWER THAT 19 YOU'RE SAYING THAT RETAINED FIBERS ARE ONES THAT HAVE NOT BEEN 20 SUBJECTED TO OUTDOOR CONDITIONS? 21 A. RIGHT. THEY'RE STORED AND HAVE NEVER BEEN INSTALLED. 22 Q. WERE THERE ANY RESTRICTIONS PLACED UPON YOU BY FIELDTURF 23 AS TO WHAT YOU COULD EVALUATE OR HOW YOU COULD RECEIVE? 24 A. NO. 25 Q. WAS ANY INFORMATION YOU REQUESTED DENIED TO YOU? 51 1 A. NO, SIR. 2 Q. ANY TESTS THAT YOU RECOMMENDED DOING REFUSED? 3 A. NONE AT ALL. 4 Q. SO YOU DIDN'T HAVE A SITUATION WHERE YOU SAID I WOULD LIKE 5 TO DO THIS TEST AND I OR FIELDTURF OR SOMEBODY ON OUR SIDE OF 6 THE AISLE SAID DON'T DO IT? 7 A. NO. 8 Q. WERE THERE ANY LIMITS PLACED UPON THE AMOUNT OF MATERIALS 9 YOU COULD TEST OR THE FIELDS YOU COULD VISIT? 10 A. NONE. 11 Q. WHAT GUIDED YOUR DECISION IN THOSE MATTERS? 12 A. WELL, I FELT THAT THE SAMPLES THAT WE HAD REPRESENTED A 13 SIGNIFICANT NUMBER OF THESE FAILS, FAILED FIELDS, ESPECIALLY 14 BASED ON THE CONTINUING PATTERN THAT WAS SIMILAR OVER AND OVER 15 AGAIN THAT WHAT I WAS GUIDED BY WAS HAVING SUFFICIENT NUMBERS 16 OF DIFFERENT COLORS OF DIFFERENT LOCATIONS AND TESTED THEM 17 ACCORDINGLY. 18 Q. AND DID YOU FEEL IN TERMS OF WHAT YOU TESTED AND WHAT YOU 19 SAMPLED YOU HAD ENOUGH INFORMATION TO EXTRAPOLATE -- 20 A. YES, I DO. 21 Q. IN YOUR PROFESSIONAL OPINION, DR. DANIELS, CAN A SCIENTIST 22 CONDUCT A VALID FAILURE ANALYSIS OF A FAILED PRODUCT WITHOUT 23 TESTING THE FAILED PRODUCT WHEN THAT PRODUCT IS AVAILABLE FOR 24 TESTING? 25 A. NO, I DON'T BELIEVE THAT'S AT ALL POSSIBLE. 52 1 Q. NOW, AS A RESULT OF YOUR -- ALL OF THE WORK THAT YOU'VE 2 DONE -- AND WE'LL GO INTO SOME MORE DETAIL -- DID YOU REACH ANY 3 CONCLUSIONS OR OPINIONS THAT YOU CAN STATE TO THIS COURT AND 4 JURY TO A REASONABLE DEGREE OF PROFESSIONAL CERTAINTY? 5 A. YES. IT'S MY OPINION THAT THE EVOLUTION FIBERS IN 6 QUESTION DID NOT HAVE SUFFICIENT STABILITY AGAINST EXPOSURE TO 7 THE ULTRAVIOLET LIGHT AND AS A RESULT OF THAT UNDERWENT 8 CHEMICAL AND PHYSICAL CHANGES WHICH RESULTED IN THEIR PREMATURE 9 FAILURE. 10 Q. DID YOU REACH AN OPINION, DR. DANIELS, AS TO WHETHER FIELD 11 FAILURES OF EVOLUTION FIELD FIBER WILL CONTINUE TO OCCUR? 12 A. I BELIEVE IT WILL. 13 Q. AND WHAT'S THE BASIS FOR THAT, DR. DANIELS? 14 A. WELL, BECAUSE OF THAT SAME REPEATING PATTERN THAT THE 15 FIBERS ALL LOOK THE SAME, THE SAME AS WE HEARD EARLIER THIS 16 MORNING NON-GREEN FIBER FAILURE EARLY ON, THE SAME PHYSICAL 17 FORMS OF THE FAILURE SHOW UP I BELIEVE IT'S GOING TO CONTINUE. 18 AND I MIGHT WANT TO ADD THAT ONCE THIS FAILURE BEGINS IT'S 19 IRREVERSIBLE. THERE'S NOTHING YOU CAN DO TO STOP IT. 20 Q. AND IS THIS CONFIRMED BY YOUR REVIEW OF SCIENTIFIC 21 LITERATURE? 22 A. ABSOLUTELY. 23 Q. AND JUST TO BE SORT OF EVEN MORE PRECISE, ALTHOUGH I THINK 24 YOU WERE RIGHT ON POINT, YOU USED THE TERM FAILURE. WHAT DO 25 YOU MEAN BY THAT TERM IN THE CONTEXT OF YOUR OPINION? 53 1 A. WELL, WHAT WE OBSERVED IN THE FAILURE HERE WAS THE LOSS OF 2 PROPERTIES MANIFESTED THEMSELVES, SHOWED UP AS LOSS OF TENSILE 3 STRENGTH AS A RESULT OF SOME VERY SIGNIFICANT CHEMICAL CHANGES 4 THAT FALL QUITE NICELY IN LINE WITH WHAT YOU WOULD EXPECT IF 5 THIS MATERIAL DID NOT HAVE SUFFICIENT ULTRAVIOLET PROTECTION. 6 Q. AND DID YOU DETECT IN YOUR WORK EMBRITTLEMENT OF THE 7 FIBER? 8 A. ABSOLUTELY. ABSOLUTELY. 9 Q. AND CAN YOU EXPLAIN TO THE COURT AND JURY WHAT YOU MEAN BY 10 YOUR OBSERVATION OF EMBRITTLEMENT. 11 A. IF I MAY CHOOSE AN ANALOGY HERE, IF YOU HAVE A GREEN TWIG, 12 MOST OF YOU HAVE SEEN THOSE. YOU CAN TAKE THEM AND KIND OF 13 BEND THEM AND THEY ARE PRETTY STRONG. AND YOU CAN ALMOST TIE 14 THEM INTO A KNOT, AND THEY DON'T BREAK. IF YOU CUT THAT TWIG 15 OFF AND YOU LET IT DRY OUT AFTER A REASONABLE PERIOD OF TIME 16 YOU CAN TAKE THE TWIG AND SNAP IT. IT'S BECOME BRITTLE. 17 Q. AND IS THAT EMBRITTLEMENT THE TERM USED IN CONNECTION WITH 18 THE DEGRADATION OF PLASTIC? 19 A. OH, YES. 20 Q. COULD YOU EXPLAIN THAT, SIR? 21 A. WELL, EMBRITTLEMENT MEANS THAT SOME CHEMICAL CHANGE HAS 22 TAKEN PLACE, SOME STRUCTURAL CHANGE AT THE MOLECULAR CHANGE HAS 23 TAKEN PLACE. AND IT SHOWS UP PHYSICALLY IN THE LOST STRENGTH. 24 IT DOESN'T HAVE THE RESILIENCY IN THE STRENGTH THAT IT ONCE 25 HAD. 54 1 Q. THERE'S BEEN SOME DISCUSSION IN THIS CASE ABOUT SOMETHING 2 WHICH WE CALL THE EARLY SAMPLE? 3 A. YES. 4 Q. DID FIELDTURF ASK YOU TO ANSWER A QUESTION ABOUT THE EARLY 5 SAMPLE? 6 A. THEY DID. 7 Q. AND FIRST WHAT WERE YOU TOLD ABOUT THE EARLY SAMPLE? 8 A. WELL, I WAS TOLD THAT IT WAS A SAMPLE SUPPLIED IN 2004 BY 9 MATTEX AND IT WAS MANUFACTURED TO SHOW THE FOLKS AT FIELDTURF 10 WHAT EVOLUTION WOULD LOOK LIKE AND WOULD BEHAVE LIKE. AND THAT 11 WAS THE SAMPLE THAT WE TESTED. 12 Q. AND WHAT WAS THE -- WHAT WAS THE QUESTION YOU WERE ASKED 13 TO DETERMINE? 14 A. WELL, WE WERE -- I WAS ASKED TO DETERMINE -- BY THE WAY, 15 THIS SAMPLE HAD A LABEL ON IT THAT SAID 150,000 CYCLES WHICH 16 WAS THE TESTING WEAR CYCLES THAT HAD BEEN SUBJECTED TO PRETTY 17 AGGRESSIVE TESTING. I WAS ASKED TO EXAMINE THE EARLY SAMPLE TO 18 DETERMINE WHETHER OR NOT IT WAS THE SAME OR DIFFERENT AS THE 19 EVOLUTION FIBER IN TERMS OF ITS CHEMISTRY. 20 Q. AND DID YOU REACH AN OPINION THAT YOU CAN EXPRESS TO THIS 21 COURT AND JURY WITH A REASONABLE DEGREE OF PROFESSIONAL 22 CERTAINTY AS TO YOUR ANSWER TO THAT QUESTION? 23 A. YES. THE TEST DATA THAT WE OBTAINED WHICH I WILL EXPLAIN 24 I THINK IN A LITTLE BIT HERE IN TERMS OF DETAIL INDICATED THAT 25 IT WAS NOT THE SAME CHEMICALLY, WAS NOT THE SAME POLYMER. AND 55 1 IT HAD A SUBSTANTIALLY LARGER AMOUNT OF THE UV PROTECTANT, THE 2 HINDERED AMINE LIGHT STABILIZER, HALS AS WE WILL CALL IT, THAN 3 WE WERE COMMONLY FINDING IN THE EVOLUTION FIBERS. 4 Q. NOW, WHAT DO YOU MEAN BY THE TERM POLYMER? 5 A. WELL, POLYMER IS A LONG CHAIN MOLECULE. A GOOD EXAMPLE OF 6 A LONG CHAIN MOLECULE THAT WE DEAL WITH EVERY DAY IS THE DNA ON 7 OUR BODIES, BIG, BIG LONG MOLECULE. THAT'S A POLYMER. 8 Q. AND DO POLYMERS HAVE DIFFERENT DESIGNATIONS AS IN TERMS OF 9 GRADES? 10 A. YES, THEY CAN, ABSOLUTELY. 11 Q. AND THE EXPRESSION HAS BEEN USED HERE A C4, C6, C8. COULD 12 YOU EXPLAIN TO THE COURT AND JURY WHAT THOSE THINGS SIGNIFY. 13 A. WELL, THEY ARE A GROUP OF POLYMERS OF THE POLYETHYLENE 14 FAMILY. THEY'RE MADE WITH DIFFERENT AMOUNTS OF INGREDIENTS TO 15 PRODUCE THE POLYMER AND AS A RESULT YOU END UP WITH DIFFERENT 16 GRADES AND YOU DO IN FACT END UP WITH DIFFERENT PERFORMANCES IN 17 THOSE DIFFERENT GRADES. 18 Q. WELL, DO THESE THREE GRADES OF POLYMER HAVE DIFFERENT 19 PHYSICAL PROPERTIES? 20 A. WELL, YES. THE C8 POLYMER, THE MORE EXPENSIVE POLYMER IS 21 A MORE DURABLE POLYMER. THE C4 IS THE LEAST OF THOSE. AND SO 22 THERE ARE DISTINCT DIFFERENCES THAT YOU CAN MEASURE AMONG THOSE 23 MEMBERS OF THE FAMILY. 24 Q. DO THROWS DIFFERENT GRADES OF POLYMERS HAVE DIFFERENT 25 CHARACTERISTICS IN TERMS OF DURABILITY? 56 1 A. YES, THEY DO. 2 Q. CAN YOU EXPLAIN THAT, SIR? 3 A. WELL, YES. THE C4 POLYMER HAS A HIRE NUMBER OF WHAT I'M 4 GOING TO CALL BRANCH POINTS. AND IF YOU WANT TO USE AN ANALOGY 5 HERE, THOSE WOULD BE WEAKER POINTS IN THE POLYMER THAN THE C8. 6 C8 HAS FEWER. IT DOESN'T REQUIRE AS MANY OF THESE BRANCH 7 POINTS TO ACHIEVE THE SAME SET OF PROPERTIES AND AS A RESULT IS 8 STRONGER, MORE DURABLE. 9 Q. WHY IS THE HAVING MORE BRANCHES MAKES THE C4 LESS DURABLE? 10 A. WELL, IT'S JUST MORE PLACES WHERE CHEMICAL ATTACK CAN TAKE 11 PLACE. 12 Q. AND DOES THAT AFFECT THEIR UTILITY IN TERMS OF RESISTING 13 ATTACK BY UV RADIATION? 14 A. YES, IT DOES. 15 Q. IN WHAT WAY? 16 A. WELL, C4 IS WEAKER IN ITS RESISTANCE ABILITY THAN THE C8. 17 Q. SO HOW DID THE EARLY SAMPLE AFTER YOUR TESTING OF IT 18 COMPARE TO THE EVOLUTION FIBER AS SOLD BY TENCATE TO FIELDTURF 19 AS YOU WERE PROVIDED SAMPLES? 20 A. WELL, THERE ARE TWO FEATURES. ONE WAS THE POLYMER ITSELF 21 WHICH ANALYSIS SHOWED THAT WAS A MIXTURE OF THE C4 AND THE C8 22 AND THE EVOLUTION FIBER IS SOLELY C4. SO THAT WAS ONE DISTINCT 23 DIFFERENCE. THE OTHER DISTINCT DIFFERENCE WAS THERE WAS A MUCH 24 LARGER AMOUNT OF THE HINDERED AMINE LIGHT STABILIZER, THE UV 25 PROTECTANT IN THE COMPOUND. AND AS A RESULT I WOULD EXPECT IT 57 1 TO PERFORM SIGNIFICANTLY BETTER. 2 Q. AND, DR. DANIELS, CAN YOU EXPLAIN YOU USED THE TERM HALS, 3 H-A-L-S. BUT WHAT DO YOU MEAN BY UV STABILIZERS? 4 A. WELL, IT'S THE SAME THING. IT IS A CHEMICAL ADDED TO THE 5 CHEMICAL -- TO THE POLYMER COMPOUND TO PROTECT AGAINST ATTACK. 6 AND IT DOES SO IN A UNIQUE RATHER UNIQUE MANNER. WHAT IT DOES 7 IS ITSELF SACRIFICES. IT GETS IN THE WAY OF THE ATTACK ON THE 8 FIBER MOLECULE ITSELF AND SO ITS JOB IS TO RUN INTERFERENCE 9 AGAINST THE UV UNTIL OR UNLESS IT'S TOTALLY CONSUMED. 10 Q. IN LAYMAN'S TERMS, HOW DO UV STABILIZERS WORK? 11 A. WELL, THEY ARE SUBJECT TO REACTIONS WHICH ARE CAUSED BY 12 THE ULTRAVIOLET RADIATION AND OXYGEN IN THE AREA AND IN THE 13 SAMPLE. THEY ARE MORE REACTIVE THAN THE POLYMER ITSELF. SO 14 THEY ARE DELIBERATELY ADDED TO CIRCUMVENT ANY ATTACK, PREVENT 15 ANY ATTACK, RUN INTERFERENCE AGAINST ANY ATTACK BY THE 16 SUNLIGHT, THE UV COMPONENT. 17 Q. ARE THEY SACRIFICIAL? 18 A. THEY ARE ABSOLUTELY, SIR. 19 Q. COULD YOU EXPAND ON THAT TOO? 20 A. WELL, OVER TIME THE MOLECULES HAVE TO DO THEIR JOB AND 21 THAT'S WHAT WE PAY THEM FOR. THAT'S -- THEY'RE EXPENSIVE 22 MATERIALS AND THEY ARE PUT IN A COMPOUND TO INTERFERE WITH THIS 23 REACTION BY REACTING FASTER. AND ONCE THAT REACTION HAS TAKEN 24 PLACE THEY ARE ESSENTIALLY NOT GOING TO BE ABLE TO DO THAT 25 AGAIN. 58 1 Q. AND WITHOUT ENOUGH STABILIZER IN THE FIBER, WHAT WILL 2 HAPPEN AND IN WHAT TIME SPAN WILL HAPPEN TO THE FIBER THAT IS 3 LEFT OUTDOORS EXPOSED TO SUNLIGHT? 4 A. WELL, IF IT'S INSUFFICIENT UV PROTECTED POLYETHYLENE IS A 5 VERY, VERY SUSCEPTIBLE MATERIAL TO ULTRAVIOLET RADIATION ATTACK 6 AND IT HAPPENS ALMOST IMMEDIATELY. 7 Q. BASED UPON YOUR CHEMICAL ANALYSIS OF THE EARLY SAMPLE, HOW 8 WOULD YOU EXPECT IT WOULD PERFORM RELATIVE TO EVOLUTION FIBER 9 IN UV TESTING? 10 A. BASED ON THE ANALYSES THAT I MADE I WOULD EXPECT IT TO 11 PERFORM SIGNIFICANTLY BETTER. 12 THE COURT: EXCUSE ME, MR. KAPLAN I THINK WE WILL GO 13 AHEAD AND TAKE OUR MORNING BREAK AT THIS TIME. LADIES AND 14 GENTLEMEN, DURING THE BREAK, REMEMBER MY INSTRUCTIONS TO YOU 15 NOT TO DISCUSS THE CASE WITH ANYONE, NOT TO ALLOW ANYONE TO 16 DISCUSS THE CASE IN YOUR PRESENCE. DON'T EVEN BEGIN DISCUSSING 17 THE CASE AMONG YOURSELVES YET. AND YOU ARE EXCUSED UNTIL 18 11:15, AND WE WILL RESUME THE TRIAL AT THAT TIME. 19 COURT'S IN RECESS UNTIL 11:15. 20 (A SHORT RECESS WAS TAKEN.) 21 THE COURT: MR. KAPLAN, I GUESS I SHOULD SAY IN 22 RESPONSE TO YOUR TENDER OF DR. DANIELS AS AN EXPERT THAT I 23 CONSISTENT WITH MY PREVIOUS RULINGS I ACCEPT HIM AS AN EXPERT 24 WHO CAN RENDER OPINION TESTIMONY UNDER RULE 702 IN THE AREAS 25 THAT YOU MENTIONED. 59 1 MR. KAPLAN: THANK YOU, YOUR HONOR. 2 THE COURT: WE'RE READY FOR THE JURY. 3 (JURY ENTERED THE COURTROOM.) 4 THE COURT: ALL RIGHT, MR. KAPLAN. 5 BY MR. KAPLAN: 6 Q. DR. DANIELS, DID YOU CREATE ANY REPORTS RELATING TO YOUR 7 EXPERT OPINIONS? 8 A. YES. THERE WERE FIVE REPORTS CREATED ABOUT FOUR HUNDRED 9 PAGES LONG OR 200 PAGES LONG I THINK IT WAS. 200 PAGES LONG, 10 YEAH. 11 Q. MY COUNT WAS 200? 12 A. 200. 13 Q. NOW, DID YOU ALSO SUPERVISE THE CREATION OF A PRESENTATION 14 TO EXPLAIN YOUR CONCLUSIONS TO THE COURT AND JURY? 15 A. YES, I DID. 16 Q. AND WITH YOUR HONOR'S PERMISSION, WE'LL SHOW MR. FERRAR 17 WILL SHOW THE PRESENTATION AND DR. DANIELS WILL DESCRIBE IT. 18 THE COURT: ALL RIGHT, MR. KAPLAN. 19 BY MR. KAPLAN: 20 Q. NOW, IS THIS -- THE PRESENTATION THAT'S NOW DISPLAYED IS 21 SOMETHING THAT YOU CREATED? 22 A. YES, IT IS. 23 Q. NOW, COULD YOU DESCRIBE WHAT IS DISPLAYED ON THE FIRST 24 STEP OF THE FIRST PAGE OF THIS DOCUMENT. 25 A. WELL, IT BASICALLY LAYS OUT THE STEPS THAT WERE UNDERTAKEN 60 1 TO DEVELOP A HYPOTHESIS AND TO TEST THE HYPOTHESIS FOR THE ROOT 2 CAUSE OF THE FAILURES THAT WERE OBSERVED IN THE EVOLUTION 3 FIBER. 4 Q. JUST TO BE CLEAR, WHAT DO YOU MEAN BY WHEN YOU SAY A 5 HYPOTHESIS? 6 A. A HYPOTHESIS IS A THEORY. IT'S A THEORY THAT NEEDS 7 VERIFICATION. IT'S A THEORY THAT REQUIRES THAT YOU TEST IT. 8 AND FIND OUT WHETHER YOU ARE CORRECT OR NOT. 9 Q. AND DID YOU DEVELOP A HYPOTHESIS IN THIS CASE? 10 A. I DID. 11 Q. COULD YOU STATE TO THE COURT AND JURY WHAT THAT HYPOTHESIS 12 WAS THAT YOU WERE THEN GOING TO EXAMINE AND TEST. 13 A. WELL, BASED ON BACKGROUND MATERIAL AND REPORTS THAT I 14 CITED EARLIER, INCLUDING SOME 30 PEER REVIEWED PUBLICATIONS IN 15 THE LITERATURE, IT WAS MY FEELING THAT INSUFFICIENT ULTRAVIOLET 16 PROTECTION IN THE EVOLUTION FIBERS WAS AT THE ROOT CAUSE OF THE 17 PREMATURE FAILURES. 18 Q. AND WHAT'S THE RELATIONSHIP BETWEEN THE STEPS LISTED ON 19 THIS PAGE THAT'S DISPLAYED AND THE DEVELOPMENT OF YOUR 20 HYPOTHESIS? 21 A. WELL, THOSE WERE THE CRITICAL STEPS TO DEVELOP THAT 22 HYPOTHESIS. YOU HAVE TO DO SOME BACKGROUND WORK. YOU HAD TO 23 MAKE SOME REAL-LIFE OBSERVATIONS WHICH WE DID. YOU'D HAVE TO 24 REVIEW DOCUMENTS, IMPORTANT DOCUMENTS AND DEPOSITION TESTIMONY. 25 AND THEN YOU GOT TO START TO ROLL UP YOUR SLEEVES AND DO SOME 61 1 WORK. AND THE ANALYSIS THAT WE PERFORMED WAS BASED ON THOSE 2 PRELIMINARY STEPS WHICH LED ME TO PROPOSE THAT THE ISSUE OF UV 3 STABILIZATION CAUSED EMBRITTLEMENT OF THE POLYMER WHICH CAUSED 4 PREMATURE FAILURE. 5 Q. AND IN TERMS OF, FIRST, THE REVIEW OF SCIENTIFIC 6 LITERATURE, I ASSUME THAT'S GIVEN IN GREATER DETAIL IN YOUR 7 REPORTS? 8 A. IT IS. 9 Q. BUT JUST BRIEFLY FOR THE COURT AND JURY WHAT WAS THAT 10 REVIEW? 11 A. WELL, THERE ARE A NUMBER OF PUBLICATIONS ON PLASTICS 12 FAILURES. THERE'S A NUMBER OF PUBLICATIONS SPECIFICALLY 13 DEDICATED TO THE POLYETHYLENE IN QUESTION. AND I THINK I CITED 14 SOME 30 OF THOSE IN MY REPORT THAT WERE PERTINENT AND SUPPORTED 15 MY BELIEF THAT WAS -- BASICALLY THAT THE UV STABILIZATION ISSUE 16 WAS AN UNDERLYING CAUSE HERE. 17 Q. AND DID THAT REVIEW OF THE SCIENTIFIC LITERATURE GIVE ANY 18 INSIGHT TO YOU ON THE SUBJECT OF THE PLASTICS MANUFACTURED WITH 19 A C4 POLYMER? 20 A. IT DID. IN FACT, THERE WERE SOME DOCUMENTS DATING BACK TO 21 SOME FOLKS THAT USED THE ORIGINAL SABIC MATERIAL THAT THERE WAS 22 SOME CONCERN ABOUT WHETHER OR NOT THE RESIN ITSELF PLAYED A 23 ROLE AND IT ALSO SUBSTANTIATED THE FACT THAT THE C4 WAS NOT AS 24 DURABLE A POLYMER AS THE C8. SO ALL OF THAT SORT OF FIT A 25 PATTERN THAT WE WERE SEEING IN THE PREMATURE DEGRADATION OF 62 1 THESE FIELDS. 2 Q. HOW MANY EVOLUTION FIELDS DID YOU PERSONALLY INSPECT? 3 A. I PERSONALLY INSPECTED EIGHT IN SOUTHERN CALIFORNIA AND 4 SOUTHERN FLORIDA. I OVERSAW THE INSPECTION BY ONE OF MY 5 COLLEAGUES OF FOUR ADDITIONAL FIELDS, ONE IN ARIZONA AND THREE 6 IN EUROPE. 7 Q. AND WHO IS THE COLLEAGUE? 8 A. JAMES EISNER. 9 Q. AND IS HE SOMEONE YOU WORK CLOSELY WITH? 10 A. I HAVE FOR A NUMBER OF YEARS. 11 Q. AND HE REPORTED TO YOU ON HIS OBSERVATIONS? 12 A. HE DID. 13 Q. NOW, WHAT DID YOU OBSERVE ON THE FIELDS THAT YOU VISITED? 14 A. WELL, AGAIN, THE PATTERN WAS CONSISTENT. WE SAW -- I SAW 15 FAILURES OF THE NON-GREENS, PARTICULARLY THE WHITES EARLY ON, 16 THE YELLOWS. THERE WAS SOME BEGINNINGS OF FAILURE OF SOME OF 17 THE GREEN FIBERS AS WELL. IT WAS MOST EVIDENT IN THOSE COLORED 18 SEGMENTS OF THE FIELD. THEY WERE PRETTY BADLY DEGRADED. 19 Q. AND DID YOU SEE ANYTHING -- YOU USE THE TERM EMBRITTLEMENT 20 BEFORE. DID YOU SEE ANY RESULTS IN YOUR EYEBALLING OF THESE 21 FIELDS THAT REFLECTED EMBRITTLEMENT? 22 A. YES. WHAT I SAW WAS FIBERS THAT HAD LITERALLY COME APART, 23 WINGS HAD FALLEN OFF, IN SOME CASES ONLY THE SPINE REMAINED. 24 IN OTHER CASES WHERE IT WAS REALLY FAR ON IN THE DEGRADATION 25 THE ENTIRE FIBER WAS BROKEN OFF AT GROUND LEVEL. NOTHING THAT 63 1 YOU WOULD EXPECT FROM A FLEXIBLE POLYMER AT ALL. 2 Q. DO YOU HAVE AN OPINION BASED ON YOUR WORK WHETHER ATHLETES 3 PLAYING ON THOSE FIELDS COULD HAVE CAUSED THE CHANGES TO THE 4 FIBERS THAT YOU OBSERVED? 5 A. DO I HAVE AN OPINION, AND I DON'T BELIEVE THAT'S WHAT'S 6 GOING ON AT ALL. 7 Q. WHAT'S THE BASIS FOR THAT? 8 A. WELL, FIRST OF ALL, THERE'S NO SCIENTIFIC BASIS FOR THE 9 CREATION OF THEM BRITTLE. BY MECHANICAL WEAR. I HAVE 10 RESEARCHED IT. THERE'S ONLY ONE REFERENCE THAT WAS CITED IN 11 THIS ENTIRE CASE BUT NOT FOR ME IT DOESN'T APPLY TO THESE 12 POLYMERS AT ALL. SO THERE'S NO MECHANISM THAT RESIDES IN MY 13 REVIEW OF THE SCIENTIFIC LITERATURE THAT WOULD SUGGEST IT. 14 AND IN ADDITION TO THAT, WE DID SOME WEAR TESTING. WE DID 15 SOME ACCELERATED WEAR TESTING AND THE PREMATURE FAILURE DID NOT 16 OCCUR. 17 Q. WE WILL GET TO THAT LATER, DR. DANIELS. BUT THE POINT IS 18 YOU DIDN'T -- YOU COULD DO A TEST TO CHECK FOR WHETHER 19 MECHANICAL WEAR CAUSED THIS PREMATURE EMBRITTLEMENT? 20 A. WE CERTAINLY COULD. 21 Q. YOU COULD AND YOU DID? 22 A. DID. 23 Q. AND YOU GOT RESULTS FROM IT? 24 A. DID. 25 Q. AND WE'LL COME TO THAT. 64 1 AS A RESULT OF YOUR REVIEW OF THE SCIENCE AND INSPECTION 2 AND TESTING, DID YOU COME TO A CONCLUSION AS TO HOW MANY CAUSES 3 COULD HAVE CAUSED THE FAILURE, THE EMBRITTLEMENT AND FAILURE OF 4 THE EVOLUTION FIBER, HOW MANY CAUSES? 5 A. ONE. 6 Q. AND WHAT IS THAT ONE? 7 A. THAT ONE IS THE INADEQUACY OF THE UV PROTECTION. THOSE 8 FIBERS ARE SUSCEPTIBLE TO UV ATTACK. THEY UNDERGO 9 EMBRITTLEMENT AND THEY PREMATURELY FAIL. 10 Q. NOW, YOU MENTIONED YOU DID TESTING TO RULE OUT OR RULE IN 11 WHAT MECHANICAL WEAR IS THE CAUSE, ROOT CAUSE OF THE FAILURES 12 OBSERVED. COULD YOU TELL THE COURT AND JURY HOW YOU DID THAT 13 TESTING TO RULE OUT MECHANICAL WEAR AS A POTENTIAL CAUSE. 14 A. YES. WE SUBJECTED OR HAD SUBJECTED BY FIELDTURF FOLKS 15 FOUR SAMPLES OF RETAINED FIELDS, TWO SUBSTANTIAL WEAR, 5,000 16 CYCLES IN A FLAT SOLAS SPORT TESTER WHICH IS PRETTY AGGRESSIVE. 17 WE MEASURED THE LEVEL OF THE HINDERED AMINE LIGHT STABILIZER 18 BEFORE AND AFTER, AND WITHIN EXPERIMENTAL ERROR THERE WAS 19 VIRTUALLY NO CHANGE. SO THAT IN MY MIND COMPLETELY RULES OUT 20 THE IDEA THAT MECHANICAL WEAR IS AT THE ROOT CAUSE OF THIS 21 ISSUE. 22 Q. DID YOU TEST THE CONCENTRATION OF UV STABILIZER IN THE 23 FIBERS? 24 A. YES. 25 Q. AND HOW DID YOU DO THAT TESTING? 65 1 A. WELL, IT'S A TECHNIQUE CALLED LIQUID CHROME TOCK AT THAT 2 DEGREE WHICH IS STANDARDS IN THE INDUSTRY. 3 Q. SAY IT SLOWLY, PLEASE. 4 A. LIQUID CHROMATOGRAPHY. THIS IS A STANDARD METHOD FOR 5 MEASURING THESE TYPES OF ADDITIVES IN THE PLASTICS INDUSTRY. 6 Q. AND WHAT DID YOU FIND, SIR? 7 A. ON WHICH FIBERS NOW ARE WE TALKING ABOUT, MR. KAPLAN? 8 Q. WELL, AFTER THE -- I THINK WITH A WE ARE SPEAKING OF IS 9 THE FIBERS AFTER THE WEAR TESTING YOU JUST DESCRIBED. 10 A. OH, OKAY. I THINK I SAID -- I'LL REPEAT AGAIN -- WE 11 TESTED THOSE FIBERS BEFORE THEY WERE WORN IN THIS ACCELERATED 12 TEST AND WE TESTED THE CONCENTRATION OF THE UV PROTECTANT AFTER 13 BY THE SAME TEST, SAME INSTRUMENT, SAME SCIENTIST DID IT. AND 14 AS I SAID WITHIN EXPERIMENTAL ERROR THERE WAS NO CHANGE. 15 Q. AND WHAT CONCLUSIONS DID YOU DRAW FROM THAT? 16 A. WELL, THE CONCLUSIONS I DRAW WERE THESE. IT'S BEEN 17 ALLEGED THAT MECHANICAL WEAR CAN CAUSE DEGENERATION OF THINGS 18 THAT REDUCE THE CONCENTRATION OF THE HINDERED AMINE LIGHT 19 STABILIZER, THE UV PROTECTANT. AND AS A RESULT OF THAT, THAT'S 20 WHY THE FIBER IS SO NON-RESISTANT. 21 SO THE FIRST THING YOU DO IS YOU TEST THE HYPOTHESIS, TAKE 22 SOME MATERIAL BEFORE AND TAKE SOME MATERIAL AFTER AND IN 23 BETWEEN SUBJECT IT TO SOME SUBSTANTIAL WEAR, MUCH MORE WEAR 24 THAN I'VE SEEN IN A FIELD WHEN THESE SAMPLES CAME BACK. AND, 25 LIKE I SAID, WITHIN EXPERIMENTAL ERROR THERE'S NO CHANGE. IT'S 66 1 STILL THERE. 2 Q. YOU MEAN THE UV PROTECTIVE STABILIZERS? 3 A. THE UV PROTECTANT IS THERE. 4 Q. TURNING BACK TO YOUR FIELD VISITS, DR. DANIELS, ARE YOU 5 AWARE THAT SOME PARTS OF ATHLETIC FIELDS RECEIVE LESS PLAY THAN 6 OTHER PARTS? 7 A. PAINFULLY SO, YES. I'M FROM CLEVELAND, AND WE DON'T USE 8 ANYBODY'S END ZONE VERY MUCH AT ALL I'M AFRAID FOR A NUMBER OF 9 YEARS. 10 Q. SO -- 11 A. SO END ZONES DON'T SEE AS MUCH USE. AND DEPENDING UPON 12 YOUR PARTICULAR PRO TEAM, MORE SO IN SOME CASES AND LESS SO IN 13 OTHERS. 14 Q. AND ON THE FIELDS THAT YOU PERSONALLY INSPECTED, 15 DR. DANIELS, HOW DID THE HIGH TRAFFIC AREAS OF THE FIELDS 16 COMPARE TO THE LOW TRAFFIC AREAS OF THE FIELD? 17 A. THE PATTERN OF WEAR HAD NO IMPACT ON WHAT WE SAW. THERE 18 WAS DEGRADATION IN AREAS WHERE THERE WAS LESS TRAFFIC AND THERE 19 WAS DEGRADATION IN AREAS WHERE YOU WOULD EXPECT MORE. 20 Q. NOW, DID YOU ALSO OBSERVE DIFFERENT COLORS OF FIBER ON 21 THESE FIELDS THAT YOU VISITED? 22 A. MANY DIFFERENT COLORS, YES. 23 Q. AND HOW DID THEY COMPARE? 24 A. WELL, THE MOST STRIKING FEATURE IS THE WHITE AND THE 25 YELLOW. THEY LOOKED AMONG IF NOT THE WORST WHICH IS A CLUE 67 1 THAT THERE'S SOMETHING GOING ON THERE THAT PERHAPS ISN'T GOING 2 ON IN THE GREEN OR AT LEAST CLAY FAST. 3 Q. SO WHAT CONCLUSIONS IF ANY DID YOU DRAW FROM THE FACT THAT 4 THE NON-GREEN FIBERS WERE DEGRADING MORE QUICKLY? 5 A. THERE WAS A CHEMISTRY GOING ON IN THOSE NON-GREEN FIBERS 6 THAT WAS ACCELERATING THE LOSS OF PROPERTIES, THE EMBRITTLEMENT 7 OF THE POLYMER AND THE PREMATURE FAILURE. 8 Q. AND WHAT DID YOU LEARN -- YOU SAY YOU READ SOME DEPOSITION 9 TESTIMONY. WHAT DID YOU LEARN FROM DEPOSITION TESTIMONY? 10 A. WELL, THE VERY SAME THING. I MEAN, I THINK THE 11 DEPOSITIONS OF THE FOLKS AT TENCATE ALSO SHOW THAT THEY WERE 12 CONCERNED ABOUT THE PERFORMANCE OF COLORS. THE 450 FIELD 13 REPORTS THAT I REVIEWED SHOW THE SAME PATTERN. MANY, MANY, 14 MANY REPORTS OF FAILURES OF WHITES AND YELLOWS THROUGHOUT AND 15 PRETTY MUCH WITHOUT EXCEPTION. 16 Q. YOU ALSO SAID, DR. DANIELS, THAT YOU EXAMINED THE 17 STRUCTURE OF EVOLUTION FIBER; IS THAT CORRECT? 18 A. YES. 19 Q. WHAT DID YOU LEARN FROM THAT EXAMINATION OF STRUCTURE? 20 A. WELL, IF WE GO TO THE FIRST SLIDE IF YOU'LL ALLOW I'M 21 GOING TO SHOW -- DO I JUST POINT IT THIS DIRECTION, SHOULD IT 22 WORK? 23 Q. IF YOU CLICK. 24 A. THERE YOU G WHAT YOU SEE IN FRONT OF YOU IS A 25 CROSS-SECTION OF A FIBER THE NORMALLY WE ARE USED TO LOOKING AT 68 1 FIBERS THAT ARE SORT OF STANDING UP LIKE THIS AND WHAT I WOULD 2 LIKE YOU TO THINK ABOUT IS SORT OF TIPPING THAT FIBER SO THAT 3 YOU ARE LOOKING AT THE END OF IT. OKAY? DOWN ON THE TOP. AND 4 THIS IS WHAT WE CALL THE CROSS SECTION. IT'S THE PROFILE OF AN 5 UNUSED GREEN FIBER. AND WHAT IT SHOWS IS THE SHAPE AND SOME 6 IMPORTANT DIMENSIONS OF THE FIBER ITSELF. IF I CAN POINT OUT 7 THE IMPORTANT FEET FURS IN THOSE DIMENSIONS. 8 Q. YES, PLEASE. PLEASE DO? 9 A. THE WINGS, THE PARTS THAT ARE TO YOUR IMMEDIATE EXTREME 10 LEFT AND RIGHTS ARE VERY THIN. JUST TO GIVE YOU A POINT OF 11 REFERENCE THAT DIMENSION IS ABOUT 75 PERCENT OF THE DIMENSION 12 THAT REPRESENTS THE THICKNESS OF A HUMAN HAIR SO IT'S QUITE 13 THIN. THE CENTER PORTION -- 14 Q. FOR SOME PEOPLE MORE THAN OTHERS? 15 A. IN SOME IT'S A DIMINISHING EXPERIENCE. 16 THE CENTER IS THE SPINE. IT'S THE THICKER AND THE 17 IMPORTANCE OF THAT IS AS FOLLOWS. THE THINNER STRUCTURES ARE 18 MORE EASILY PENETRATED BY THE UV LIGHT. THE THINNESS OF OUR 19 SKIN, FOR EXAMPLE, MUCH MORE EASILY PENETRATED BY UV LIGHT. SO 20 ONE OF THE FEATURES IN THIS DIMENSION PERSPECTIVE IS THAT THE 21 WINGS CAN GET PENETRATED BY THIS HIGH ENERGY RADIATION QUITE 22 QUICKLY WHEREAS THE SPINE'S GOING TO BE A LITTLE BIT MORE 23 RESISTANT BECAUSE IT'S TWO TO THREE TIMES THICKER. 24 ANOTHER INTERESTING FEATURE ABOUT IT IS IF YOU WILL LOOK 25 RIGHT WHERE THE SPINE IN THE LEFT-HAND SIDE MEETS THE WING 69 1 THERE'S KIND OF A SHARP ANGLE. AND WHEN A POLYMER BECOMES 2 EMBRITTLED THAT'S A PLACE WHERE WE WOULD EXPECT FAILURE TO BE 3 MOST NORMALLY SEEN. THAT'S JUST TYPICAL OF THE WAY PLASTICS 4 BEHAVE. AND LATER ON WHEN THAT FIBER DOES BECOME BRITTLE, IT, 5 IN FACT, DOES BEGIN TO SPLIT IN THAT GENERAL AREA. 6 Q. SO FOCUSING ON THIS STRUCTURE, DO YOU HAVE AN OPINION 7 WHETHER EVEN IF THE FIBER HAD BEEN GIVEN ENOUGH HALS TO START 8 WITH IT COULD STILL FAIL BY UV ATTACK? 9 A. YEAH. I THINK THE THICKNESS OF THE FIBER OR IF I CAN TURN 10 THAT AROUND THE THINNESS OF THE FIBER REALLY IS WORKING AGAINST 11 YOU IN TERMS OF PROTECTION. 12 Q. AFTER YOU CAME UP WITH YOUR HYPOTHESIS, DR. DANIELS, THAT 13 EVOLUTION FIBERS HAVE INSUFFICIENT UV STABILITY, WHAT DID YOU 14 DO NEXT? 15 A. WELL, IF I MOVE TO THE NEXT SLIDE, AS I SAID, WE DEVELOPED 16 THIS OR I DEVELOPED THIS HYPOTHESIS THAT THE LACK OF UV 17 PROTECTION WAS AT THE ROOT CAUSE OF THESE PREMATURE FAILURES. 18 AND SO NOW IT BECAME MY TASK TO TEST THAT HYPOTHESIS WITH 19 EXPERIMENTAL EVIDENCE TO SEE WHETHER OR NOT THAT MECHANISM WAS 20 OPERATIVE AND THAT'S WHAT I DID. 21 Q. CAN YOU EXPLAIN, SIR, HOW THAT TESTING WAS DONE. 22 A. YES. IF WE MOVE TO THE NEXT SLIDE, THERE'S A LIST OF 23 TERMS HERE THAT I'LL TRY TO EXPLAIN THAT LED ME TO FURTHER 24 VERIFY MY HYPOTHESIS ABOUT THE UV PROTECTION. THE FIRST ONE 25 I'M GOING TO TALK ABOUT SOMETHING CALLED OPTICAL AND PHOTO 70 1 GRAPHIC MICROSCOPY. NOW BASICALLY WHAT THAT IS IS JUST HIGH 2 POWERED MICROSCOPIC PHOTOGRAPHS OF THE DEGRADED FIELDS AS 3 AGAINST THOSE THAT WERE NOT. AND WE SAW PATTERN FAILURE THAT 4 WAS REPEATED OVER AND OVER AGAIN. 5 Q. TO WHAT SAMPLES OR SPECIMENS OF TURF OR FIBER DID YOU 6 PERFORM -- ON WHAT SPECIMENS DID YOU PERFORM THAT ANALYSIS? 7 A. WELL, AS I SAID EARLIER, I HAD NINE PAIRS OF FIELDS, NINE 8 PAIRS OF SAMPLES WHERE I HAD DEGRADED FIELDS AND THEIR RETAINED 9 COUNTERPARTS AND THEN THERE WERE 14 OTHER DEGRADED FIELDS WHICH 10 WE ALSO SUBJECTED TO THIS ANALYSIS. 11 Q. AND SO FOR THE NINE FIELDS THAT YOU HAVE JUST MENTIONED 12 YOU TESTED FIBERS THAT HAD BEEN LEFT OUTDOORS? 13 A. YES. 14 Q. AND ALSO ONES THAT HAD NOT? 15 A. YES. 16 Q. WERE THESE FIELDS SIMILAR TO THE HUNDREDS OF OTHERS 17 EVOLUTION FIELDS WITH FIBER POLYMERS? 18 A. YES, THEY WERE. 19 Q. HOW DO YOU KNOW THAT, SIR? 20 A. WELL, AGAIN, WE HAD THE OPPORTUNITY TO LOOK AT ALL THOSE 21 FIELD REPORTS AND READ THE ANALYSES OF THE PEOPLE WHO WERE 22 ACTUALLY ON THE FIELDS AND HAD CONSTRUCTED THESE REPORTS AND 23 TOOK PHOTOGRAPHS; AND THE PATTERN WAS REPEATED OVER AND OVER 24 AGAIN. THEY ALL LOOKED THE SAME. I MEAN, EVEN -- EVEN 25 TENCATE'S EXPERT SAID THE FIBERS ALL LOOKED THE SAME. 71 1 Q. DID YOU DO ANY TESTING TO VERIFY THAT THE FIBERS FROM 2 THOSE NINE FIELDS ARE SIMILAR TO THE OTHER EVOLUTION FIELDS? 3 A. YES. 4 Q. AND WHAT WAS THAT, SIR? 5 A. WELL, WE SUBJECTED IT TO A NUMBER OF DIFFERENT STUDIES. 6 THE CLASSIC STUDY THAT YOU DO TO DETERMINE THE IDENTITY OF A 7 POLYMER IS TO RUN AN INFRARED SPECTRUM WHICH WE DID, AND WE 8 VERIFIED THAT WE WERE TALKING ABOUT LINEAR LOW-DENSITY 9 POLYETHYLENE. AND -- 10 Q. WELL, LET ME SLOW YOU DOWN. YOU UNDERSTAND THIS BETTER 11 THAN WE DO. 12 A. OKAY. 13 Q. SO PERHAPS ONE AT A TIME ON YOUR LIST HERE. YOU TALKED 14 ABOUT OPTICAL AND PHOTOGRAPHIC MICROSCOPY? 15 A. YES. 16 Q. DESCRIBE FOR THE COURT AND JURY ONE AT A TIME WHAT THE 17 OTHER TESTS WERE THAT YOU DID. 18 A. OKAY. IF I CAN GO THROUGH THESE IN ORDER, THE OPTICAL AND 19 PHOTO MICROSCOPY AGAIN TAKING SOME HIGH-POWERED PICTURES OF THE 20 DEGRADED FIELDS I'M GOING TO SHOW YOU A LITTLE BIT OF AN 21 ANIMATION HERE IN TERMS OF WHAT WE SAW AND WHAT WE PROPOSED AND 22 WHAT WE VERIFIED. 23 SO THIS FIRST REPRESENTATION IS OF A FIELD THAT'S BEEN 24 INSTALLED. ALL THE FIBERS ARE STANDING UP STRAIGHT LOOKING 25 JUST PERFECT AND THEY ARE BEING IMPINGED BY OR STRUCK BY 72 1 ULTRAVIOLET RAYS FROM THE SUN THEY ARE IN THE SUN. THEY HAVE 2 BEEN INSTALLED YOU SEE THE INFILL YOU SEE THE BACKING YOU SEE 3 THE FIBERS. 4 OKAY? 5 NOW IF I CAN DRAW YOUR ATTENTION THEN TO A SMALL SECTION 6 OF THAT FIELD AND JUST LOOK AT AN INDIVIDUAL FIBER AND SORT 7 PULL IT OUT SO WE CAN LOOK AT ITS DIMENSIONS AND THEN IF HE 8 CUSS ON THE TOP THREE QUARTERS OF AN INCH THAT'S EXPOSED TO THE 9 SUN WE SEE THAT FIBER NOW LOOKING AT IT STRAIGHT ON NOT ON END 10 BUT STRAIGHT ON. 11 Q. THAT'S THE IMAGE ON THE RIGHT? 12 A. THAT'S THE IMAGE ON THE EXTREME RIGHT. OKAY? SO THAT'S 13 ABOVE THE INFILL, AND IT'S SEEING SUNLIGHT. NOW IF WE TAKE A 14 LOOK AT THIS INDIVIDUAL FIBER IN TERMS OF HOW IT'S GOING TO 15 BEHAVE LIKE I SAID IF YOU LOOKED AT IT ON END THAT 16 CROSS-SECTION IS WHAT YOU WOULD SEE AND I'LL MAKE REFERENCE TO 17 THINGS CALLED SPINES AND WINGS HERE AS WE GO ON. BUT JUST SO 18 WE UNDERSTAND THE WINGS ARE ON THE OUTSIDE THE SPINE IS THAT 19 THICKER CENTER PORTION. OKAY? 20 IF I GO TO THE NEXT SLIDE, WHEN THAT FIELD IS INSTALLED 21 AND THAT FIBER IS BRAND NEW, THERE ARE NO DEFECTS IN IT. THERE 22 ARE NO CRACKS. THERE ARE NO SIGNS THAT IT'S BEING DEGRADED AT 23 ALL. IT'S BRAND NEW. IT LOOKS PERFECT. IT DOESN'T STAY THAT 24 WAY. IF WE CONTINUE TO FOCUS ON THAT AREA -- BY THE WAY, THESE 25 PICTURES THAT I'M SHOWING YOU WERE ACTUAL -- THEY ARE BASED ON 73 1 ACTUAL PHOTO MICROGRAPHS THAT WE TOOK SO IT LOOKS LIKE 2 ANIMATION THERE'S ACTUAL PHYSICAL EVIDENCE OF THESE PARTICULAR 3 FIBERS AND THESE PARTICULAR PHOTOS. 4 THE FIRST THING YOU SEE IN THE INITIAL STAGES OF 5 DEGRADATION ARE THE FORMATION OF THESE CRACKS AND THE CRACKS 6 START TO BEGIN IN THE WINGS. THEY ARE IN THE THINNER 7 STRUCTURES AND THEY ARE MORE SUSCEPTIBLE TO THIS PARTICULAR 8 RADIATION. THIS PATTERN CONTINUES. AS THE DEGRADATION GOES 9 ON, THE CRACKS GET BIGGER. YOU BEGIN TO SEE THE FORMATION OF 10 SOMETHING IS ELSE TOO. IF YOU LOOK CAREFULLY AT THE WINGS, THE 11 OUTSIDE STRUCTURES YOU ARE NOW STARTING TO SEE THE FORMATION OF 12 THESE LITTLE WHITE LINES THAT SEEM TO GO ACROSS THE WINGS AS 13 OPPOSED TO UP AND DOWN. WELL, WE SEE THIS GET WORSE AS TIME 14 GOES ON. IT'S EVIDENCE OF CROSS-LINKING. IT'S EVIDENCE OF 15 EMBRITTLEMENT. IT'S EVIDENCE THAT THESE THINGS ARE VERY 16 FRAGILE AND WILL EVENTUALLY BREAK. 17 Q. EXCUSE ME. LET ME STOP YOU, DR. DANIELS. 18 YOU SAID THE TERM CROSS LINKING? 19 A. YES. 20 Q. COULD YOU HELP US BY EXPLAINING WHAT THAT MEANS? 21 A. I'D BE HAPPY TO. 22 IN AN INDIVIDUAL FIBER SAMPLE WHEN IT'S MADE FRESH ALL THE 23 MOLECULES BEHAVE INDEPENDENTLY IT'S LIKE LOOKING LIKE A BOWL OF 24 SPAGHETTI ALL THE STRANDS OF SPAGHETTI DON'T CONNECT TO ONE 25 ANOTHER. AS A POLYMER MOLECULE GETS CROSS-LINKED DURING 74 1 DEGRADATION WHAT HAPPENS IS SMALL PIECES, REACTIVE PIECES BREAK 2 OFF WHICH CHANGES THE LENGTH OF THE MOLECULE BUT ALSO DOES 3 SOMETHING MORE IMPORTANT. THEY ATTACK THEIR BRETHREN. THEY 4 ATTACK OTHER MOLECULES IN THE SYSTEM. AND SO WHEN A SYSTEM 5 BECOMES CROSS-LINKED IT'S LIKE CHANGING FROM THAT BOWL OF 6 SPAGHETTI TO WHAT YOU WOULD SEE IN A CHAIN-LINK FENCE WHERE ALL 7 THE SEGMENTS ARE NOW IN SOME WAY CONNECTED TO ONE ANOTHER. 8 THAT'S A MUCH MORE BRITTLE STRUCTURE AND MUCH MORE EASY TO 9 BREAK IN THE POLYMER WORLD THAN IS SOMETHING THAT'S FLEXIBLE 10 AND PLIABLE. 11 Q. PLEASE CONTINUE. 12 A. OKAY. WELL, AS WE SEE THE PROGRESSION AGAIN BASED ON 13 ACTUAL PHOTO MICROGRAPHS WE BEGIN TO SEE THE FORMATION OF 14 ADDITIONAL CRACKS, BIGGER AREAS OF SPLITTING DOWN ALONG THOSE 15 SPINE INTERFACES WITH THE WINGS. AND THIS PATTERN OF THE WHITE 16 LOOKING -- I WILL USE THE TERM HERE CRAZING WHICH GOES IN THIS 17 DIRECTION, NOT THIS DIRECTION BEGINNING TO FORM. THOSE ARE 18 GOING TO BE AREAS THAT ARE GOING TO BECOME VERY SUSCEPTIBLE TO 19 EASY BREAKAGE AS TIME GOES ON. 20 Q. YOU USED THE TERM ANOTHER TERM CRAZING? 21 A. YES. 22 Q. COULD YOU JUST EXPLAIN THAT, SIR. 23 A. YEAH. CRAZING IS A CLASSIC SYMPTOM OF THIS CROSS LINKING 24 IT'S A CLASSIC SYMPTOM OF THE EMBRITTLEMENT OF THE POLYMER. 25 IT'S -- I HATE TO SAY THIS BUT AS WE ALL GET OLDER OUR SKIN 75 1 TENDS TO LOOK THAT WAY BECAUSE OUR SKIN IS ACTUALLY GETTING 2 CROSS-LINK SO IT'S THAT SAME TYPE OF STRUCTURE THAT'S TAKING 3 PLACE IT'S LESS PLIABLE AND MUCH MORE FRAGILE. 4 Q. PLEASE CONTINUE, SIR. 5 A. SURE. 6 WELL, THINGS START TO BREAK OFF AND THE FIRST THING THAT 7 WE OBSERVED IN THE FIELD FAILURES IS THE BREAKAGE OF THESE 8 WINGS AND WE ALSO SEE -- BEGIN TO SEE A CHANGE IN THE COLOR T'S 9 STARTING TO LOOK LESS GREEN AND THAT'S BECAUSE IT'S GOT ALL 10 THIS WHITE AIR CONTAINING CRAZES THAT ARE STARTING TO FORM 11 ACROSS THE FIBER. IT'S BECOME VERY EMBRITTLED AT THIS POINT 12 IT'S VERY FRAGILE AT THIS POINT THE WINGS ARE GONE IN THIS 13 PARTICULAR SLIDE AND AS TIME GOES ON EVENTUALLY THAT SPINE IS 14 GOING TO BREAK OFF. AND SO NOW YOU'VE GOT TO THE POINT WHERE 15 YOUR MATERIAL THAT HAS BROKEN OFF -- BY THE WAY WE DID LOOK AT 16 SOME OF THE BROKEN SPINES THEY ARE BADLY DEGRADED. I HAVE 17 PHOTOGRAPHS OF HE IS THOSE IN MY EXPERT REPORT. 18 AND LASTLY, THEY BREAK OFF RIGHT AT GROUNDS LEVEL AND THIS 19 IS TYPICALLY WHAT YOU SEE WHEN YOU LOOK DOWN ONE OF THE WHITE 20 STRIPES ON A FIELD IT'S PRETTY BADLY BROKEN AT GROUND LEVEL. 21 Q. SO IT WOULD LOOK DARK IN COLOR AS THE COLOR OF THE INFILL 22 IS EXPOSED? 23 A. STARTS IT LOOK THE SAME COLOR REALLY AS THE INFILL. IT'S 24 THE BLACK. 25 Q. AND WHAT IS THE -- WHAT IS BEING DEPICTED ON THE RIGHT 76 1 SIDE OF THE SCREEN? 2 A. WELL, THE RIDE SIDE IS FROM TOP TO BOTTOM AFTER AND 3 BEFORE. WHAT YOU STARTED WITH IS AT THE BOTTOM IT'S NICE IT'S 4 FLEXIBLE IT'S NICE AND GREEN, BEHAVES QUITE NORMALLY. ABOVE IT 5 IT'S BADLY DEGRADED AND IT'S BROKEN. 6 Q. THANK YOU. 7 A. YOU'RE WELCOME. 8 OKAY. THERE WAS SOME ADDITIONAL TESTING. ONE OF THE 9 IMPORTANT ONES WAS THIS ISSUE OF THE UV PROTECTANT SO WE TOOK A 10 NUMBER OF SAMPLES AS I DESCRIBED AND WE MEASURED THE AMOUNTS OF 11 THE UV PROTECTANT MUCH AND IN THE DEGRADED FIBERS IT WAS GONE. 12 NOT SURPRISING BEGIN THE DEGREE TO WHICH THEY HAD BECOME 13 EMBRITTLED AND BROKEN. 14 Q. SO YOU COULD TEST THE DEGRADED FIBERS TO SEEK TO DETERMINE 15 WHETHER ANY OF THE UV STABILIZER THAT PRESUMABLY WAS THERE AT 16 THE BEGINNING REMAINED? 17 A. RIGHT. 18 Q. AND YOU FOUND? 19 A. NONE IN EVERY CASE. WHEN WE LOOKED AT THE RETAIN SAMPLES 20 -- THIS IS WHERE WE STARTED; I MEAN, THIS IS THE BRAND NEW 21 FIBER -- WE FOUND DIFFERENT AMOUNTS OF THE HINDERED AMINE LIGHT 22 STABILIZER WHICH TO ME INDICATED THERE MUST HAVE BEEN SOME KIND 23 OF MANUFACTURING INCONSISTENCY GOING ON FROM FIELD TO FIELD. 24 THAT'S A SUBSTANTIAL DIFFERENCE. THAT'S ALMOST A FACTOR OF 25 THREE IN THAT UV PROTECTANT LAYER. 77 1 Q. BUT IN DIFFERENT AMOUNTS THE RETAINED UNUSED SAMPLES THAT 2 HAD NOT BEEN SUBJECTED TO SUNLIGHT HAD UV STABILIZER? 3 A. AS THEY SHOULD HAVE. AS THEY SHOULD HAVE. 4 Q. PLEASE CONTINUE. 5 A. WELL, WE DID SOMETHING ELSE. I SAID TO YOU THAT DURING 6 THIS BREAK DOWN OF THE POLYMER WE CREATED CHANGES IN THE 7 POLYMER AT THE MOLECULAR LEVEL AND ONE EASY WAY TO MEASURE THAT 8 OR ONE DIRECT WAY OF MEASURING THAT IS TO LOOK WHAT HAPPENS TO 9 THE LENGTH OF THE MOLECULES BEFORE AND AFTER. AND WE LOOKED AT 10 THIS FIBER SYSTEM IN A WAY THAT ALLOWED US TO LOOK AT THE AREA 11 THAT WAS SUBJECTED TO THE SUNLIGHT ABOVE AND TO NO SUNLIGHT 12 BELOW, THE INFILL LEVEL. ABOVE THE INFILL, A CONSISTENT 13 PATTERN OF LOSS OF MOLECULAR WEIGHT, LOSS OF PROPERTIES, 14 CREATION OF THIS CROSS-LINK STRUCTURE, BELOW THE INFILL NO 15 SUBSTANTIAL LOSS OF MOLECULAR WEIGHT THAT WOULD HAVE AFFECTED 16 THE PHYSICAL PROPERTIES AT ALL. 17 Q. JUST GOING BACK, DO YOU HAVE AN OPINION THAT YOU COULD 18 EXPRESS TO THE COURT AND JURY WITH A REASONABLE DEGREE OF 19 PROFESSIONAL CERTAINTY AS TO WHY THE DEGRADED FIBERS HAD NO UV 20 STABILIZER? 21 A. IT'S BEEN CONSUMED. IT'S BEEN CONSUMED. ABOVE THE INFILL 22 IT'S BEEN CONSUMED. 23 Q. PLEASE CONTINUE. 24 A. FURTHER EVIDENCE. NOW THIS MAY BE A LITTLE BIT OF A 25 COMPLICATED SLIDE BUT I WANT TO SHOW YOU SOME OTHER SYMPTOMS OF 78 1 THIS FORMATION OF CROSS LINKING AND NEW KINDS OF ARRANGEMENTS 2 OF THE MOLECULE. TO YOUR IMMEDIATE LEFT -- 3 Q. WELL, LET ME JUST ASK YOU, YOU USE THE WORD RHEOLOGY. 4 WHAT IS RHEOLOGY? 5 A. RHEOLOGY IS THE STUDY OF THE FLOW OF POLYMERS. AND IT'S 6 VERY, VERY MUCH RELATED TO THE MOLECULAR LENGTH WE HAVE TALKING 7 ABOUT. 8 Q. SO PLEASE EXPLAIN TO THE COURT AND JURY WHAT THEY ARE 9 SEEING IN THESE IMAGES ON THE SLIDE. 10 A. OKAY. ON THE FAR LEFT IS A LOWER MAGNIFICATION OF A 11 SOLUTION THAT WAS MADE TO RUN A LIQUID CHROMATOGRAPHY 12 EXPERIMENT. THIS REFLECTS THE MOLECULAR WEIGHT ISSUE QUITE 13 NICELY IN WHICH THE SAMPLE IS HEATED UP AND THEN IT'S ALLOWED 14 TO COOL DOWN EVERYTHING IS VERY HOMOGENEOUS. IN FACT, IF YOU 15 LOOK TO THE SECOND FROM THE LEFT THE SOLUTION DOESN'T HAVE ANY 16 LUMPS OR CHUNKS IN IT OR ANYTHING LIKE THAT. THE SOLUTION 17 BEHAVES IDEALLY AS ONE WOULD EXPECT IF ANYTHING WERE GOING TO 18 DISSOLVE AND MOLECULES WERE INDEPENDENT OF ONE ANOTHER. 19 Q. WHAT DOES BISHOP REFER TO? 20 A. THAT'S ONE OF THE FIELDS. 21 Q. BISHOP VEROT HIGH SCHOOL? 22 A. BISHOP VEROT HIGH SCHOOL. 23 SO WE HAD ON ONE SIDE THE RETAIN SAMPLE AND THEN THE OTHER 24 SIDE SAMPLES FROM THE DEGRADED FIBERS. 25 Q. THE SMALLER JARS ARE WHAT? 79 1 A. SMALLER JARS NUMBERS 1 AND 3 FROM THE LEFT ARE LOW 2 MAGNIFICATION PICTURES, NUMBER ONE IS A PICTURE OF THE SOLUTION 3 MADE FROM THE RETAINED FIBERS AND NUMBER THREE FROM THE 4 DEGRADED FIBERS. SO I WANT TO CALL YOUR ATTENTION TO THE SYRIA 5 THAT'S CIRCLED ON THE PHOTOGRAPHS ON THE RIGHT. THOSE CHUNKS 6 THAT ARE CIRCLED THERE ARE POLYMER MOLECULES THAT ARE SO 7 CROSS-LINKED THAT THEY CAN'T DISSOLVE THAT WE CAN'T GET THEM TO 8 DISSOLVE. AND THAT IS A CLASSIC SOLUTION REPRESENTATION OF A 9 MATERIAL THAT'S UNDERGONE A CHEMICAL CHANGE TO THE POINT WHERE 10 THE POLYMER MOLECULES ARE NO LONGER ACTING INDEPENDENTLY, HAVE 11 UNDERGONE SUBSTANTIAL CHEMICAL REARRANGEMENT AND IT SHOWED UP 12 IN THESE AND THE PHOTOGRAPHS ARE MADE TO DEMONSTRATE THAT. 13 Q. ARE YOU MEASURING BY THIS TEST MOLECULAR WEIGHT? 14 A. NO. THIS WAS ACTUALLY PART OF A TEST TO DO THE LIQUID 15 CHROMATOGRAPHY, BUT IT BECAME VERY APPARENT THAT THE MOLECULAR 16 WEIGHT ISSUE WAS REFLECTING ITSELF IN OUR PREPARATION OF 17 SAMPLES, SO WE WANTED TO MAKE SURE WE DOCUMENTED THAT. 18 Q. SO WHEN WE SEE THESE DARK SPOTS THAT ARE IN THE CIRCLES -- 19 A. ON THE RIGHT-HAND SIDE. 20 Q. -- ON THE RIGHT-HAND SIDE, WHAT ARE WE SEEING AND WHAT 21 DOES IT INDICATES? 22 A. WHAT YOU'RE SEEING ARE PIECES OF THE FIBER WHICH WE CAN'T 23 GET TO ACT AS INDEPENDENT MOLECULES ANY LONGER. THEY ARE TIED 24 TOGETHER. THEY ARE CROSS-LINKED. THEY ARE PART OF THAT 25 EMBRITTLED STRUCTURE AND SO THEY ACT DIFFERENTLY WHEN YOU PUT 80 1 THEM IN A SOLUTION TO TRY TO MAKE SOME MEASUREMENTS ON THEM. 2 Q. I THINK YOU USED THE TERM MOLECULAR WEIGHT. WHAT IS THAT? 3 A. WELL, MOLECULAR WEIGHT IS A MEASURE OF THE LENGTH OF THE 4 CHAIN IT'S BEGIN IN SIMPLE TERMS WHETHER YOU HAVE A LONG PIECE 5 OF SPAGHETTI TORE A SHORTER PIECE OF SPAGHETTI AND LONGER 6 HIGHER THE MOLECULAR WEIGHT. 7 Q. AND WHAT HAPPENS IN YOUR UNDERSTANDING WHEN A FIBER LOSES 8 MOLECULAR WEIGHT? 9 A. ITS PROPERTIES GO DOWN. ITS PROPERTIES DIMINISH RAPIDLY. 10 Q. PROPERTIES IN TERMS OF? 11 A. PHYSICAL PROPERTIES. ITS RE SILL YEN SEE, ITS ABILITY TO 12 BE ELONGATED OR STRETCHED BECOME MUCH, MUCH LESS WHEN THE 13 MOLECULES ARE SMALLER. 14 Q. AND WHAT DID YOUR TESTING SHOW IN TERMS OF FIBER THAT WAS 15 OPPOSED TO -- EXPOSED TO THE SUN IN TERMS OF MOLECULAR WEIGHT? 16 A. MOLECULAR WEIGHTS WENT IN -- ACTUALLY TWO DIRECTIONS. WE 17 SAW THE FORMATION OF VERY, VERY SMALL PIECES AND PART OF THE 18 ISSUE WITH THIS PARTICULAR POLYMER IS THAT SOME OF THOSE SMALL 19 PIECES ARE HIGHLY REACTIVE AND THEY GO ABOUT THEIR BUSINESS 20 ATTACKING OTHER LARGER MOLECULES AND SO YOU SEE THE FORMATION 21 OF BIGGER BRANCHED CROSS-LINK MOLECULES AND THAT WHOLE 22 STRUCTURE IS TOTALLY, TOTALLY DIFFERENT FROM WHERE YOU STARTED. 23 Q. NOW, COULD FIELDTURF OR ITS CUSTOMERS HAVE CAUSED THE 24 EVOLUTION FIBERS TO LOSE MOLECULAR WEIGHT? 25 A. NO, NO. 81 1 Q. IS IT EVEN POSSIBLE SCIENTIFICALLY? 2 A. NO IT'S NOT POSSIBLE. 3 Q. COULD THEY HAVE CAUSED CROSS LINKING? 4 A. NO. 5 Q. WHAT IS THE CAUSE OF CROSS LINKING OF THESE FIBERS? 6 A. WELL, THE MECHANISM OF UV ATTACK BECAUSE THEY ARE 7 INSUFFICIENTLY STABILIZED AGAINST IT WILL CAUSE THESE MOLECULES 8 TO BE ATTACKED BY THE UV, CREATE REACTIVE STRUCTURES, UNDERGO 9 THIS CHAIN BREAKAGE AND CHAIN REFORMATION WHICH ENDS UP IN THIS 10 CROSS-LINK STRUCTURE THAT THESE SOLUTIONS AND OTHER 11 MEASUREMENTS HAVE REFLECTED. 12 Q. WHAT WAS THE NEXT TEST YOU RAN, DR. DANIELS? 13 A. WELL, THE NEXT TEST WAS SO WE SAW IN THE RHEOLOGY AS I 14 SUMMARIZED HERE ABOVE THE INFILL WE SAW SUBSTANTIAL 15 CROSS-LINKING. SO LET ME MOVE ON TO THE INFRARED SPECTROSCOPY. 16 THIS IS A MOUTHFUL. THIS IS A MOLECULE WHICH IS LOOKING FOR 17 WHETHER OR NOT THERE HAVE BEEN ANY CHEMICAL CHANGES IN THE 18 POLYMER AND SO WHAT WE DID WAS WE LOOKED AT TWO SAMPLES. AND 19 IF I COULD DRAW YOUR ATTENTION TO THE RED IF THAT'S VISIBLE, 20 THE LOWER CURVE, THAT'S A TYPICAL INFRARED SPECTRUM OF 21 POLYETHYLENE, NOTHING STRANGE THERE, NOTHING FOREIGN THERE AT 22 ALL. THIS IS A SAMPLE TAKEN FROM THE AREA BELOW THE INFILL, 23 THE SAME FIBER. NOW I WANT TO CALL YOUR ATTENTION TO THE BLACK 24 CAN YOU EVER AND IN PARTICULAR FOCUS IN ON THAT PEAK THAT'S 25 LABELED CALLED THE CORE BOW NIL PEAK. 82 1 Q. SORT OF IN THE CENTER IN THE CENTER? 2 A. YEAH IT'S ALTHOUGH YOU CAN'T SEE THE SCALE IT'S AT ABOUT 3 17 HUNDRED WAVE NUMBERS IF YOU CAN READ THE UNITS ON THE BOTTOM 4 BUT IT'S THAT BUMP THERE THAT OCCURS THAT DOESN'T OCCUR IN THE 5 RED ONE BELOW IT AND THAT IS A SIGNATURE PEAK. IT IS A UNIQUE 6 PEAK, AND IT IS FORMED WHEN THE POLYMER BEGINS TO UNDERGO 7 SUBSTANTIAL DEGRADATION. NOW I WILL POINT OUT THAT THIS TEST 8 IS NOT VERY SENSITIVE TO THE LOCATION -- THE INTENSITY OF THAT 9 PEAK AND WHAT I MEAN BY THAT IS WE HAVE TO HAVE A LOT OF 10 DEGRADATION TO BE ABLE TO SEE THAT PEAK AND THERE'S A LOT OF 11 DEGRADATION AT THE TOP COMPARED TO THE BOTTOM. THAT'S WHY IT'S 12 THERE. 13 Q. COULD FIELDTURF OR ITS CUSTOMERS HAVE CAUSED THOSE PEAKS? 14 A. NO. 15 Q. IS IT SCIENTIFICALLY POSSIBLE FOR THEM TO HAVE DONE SO? 16 A. NO, IT'S NOT. 17 Q. HOW MANY CAUSES COULD HAVE CAUSED THIS TEST RESULT? 18 A. IT'S THE RESULT OF THIS UV ATTACK CAUSES SOMETHING CALLED 19 PHOTO OXIDATION AND THAT'S ONE OF THE CHEMICAL CHANGES THAT 20 TAKES PLACE AND THAT'S THE SIGNATURE PEAK THAT CORRESPONDS TO 21 THAT PEAK. 22 Q. DID YOU DO ANY OTHER TESTING DR. DANIELS OF THE RETAIN 23 FIBERS HAD A HAD NOT BEEN EXPOSED TO SUNLIGHT? 24 A. WELL, THE INFRARED SPECTRUM AS I SHOWED YOU SHOWED THIS 25 CHEMICAL DEGRADATION ABOVE THE INFILL AND NONE BELOW SO WE 83 1 MOVED ON TO SOMETHING WHICH WAS LOOKING FOR METALS AND IT'S A 2 TECHNIQUE THAT IS SENSITIVE TO THE PRESENCE OF MATERIALS THAT 3 ARE USED TO ACTUALLY PRODUCE THE RESIDUE THIS THE FIRST PLACE. 4 THESE REACTIVE METALS ARE USED AS THINGS CALLED CATALYSTS AS 5 THINGS THAT HELP FORM THE POLYMER IN THE INITIAL STAGES PRIOR 6 TO ITS BEING USED IN ANY APPLICATION. 7 AND WHAT WE FOUND WHICH SUBSTANTIATES SOME OF THE CONCERNS 8 THAT PEOPLE HAD EARLY ON WITH THE SABIC CREATED POLYETHYLENE 9 THAT THERE WAS A LARGE AMOUNT OF THESE REACTIVE METALS LEFT 10 OVER AND IF YOU COMPARE THAT LEVEL TO TODAY'S C4 POLYMER, TO 11 TODAY'S HIGH QUALITY C4 POLYMER THE LEVELS OF THOSE REACTIVE 12 METALS WERE ABOUT A LEVEL OF ABOUT A HUNDRED TIMES WHAT YOU 13 WOULD NORMALLY EXPECT TO FIND TODAY. 14 AND SO -- 15 Q. WHAT IS RESIDUAL CATALYST? 16 A. WELL, THOSE ARE METALS ARE PART OF THE ORIGINAL 17 MANUFACTURING PROCESS. YOUR PROCESS SHOULD REMOVE THOSE 18 BECAUSE THEY ARE BAD ACTORS. THEY WILL PROMOTE DEGRADATION. 19 Q. IN WHAT WAY, SIR WILL THEY -- 20 A. WELL, THEY ARE INTERACT WITH THE POLYMER AND ANY OF THE 21 PROTECTIVE PACKAGE THAT IS YOU PUT IN THERE IN A WAY THAT MAKES 22 THEM -- THE PROTECTANT PACKAGES GET USED UP QUICKER AND 23 PROMOTES DEGRADATION. YOU WANT THOSE METAL LEVELS TO BE AS LOW 24 AS POSSIBLE. 25 Q. NOW, WHY DID YOU TEST FOR THE EXISTENCE OF RESIDUAL 84 1 CATALYSTS IN THIS MATTER? 2 A. I HAD READ REPORTS THAT THERE WERE SOME CONCERN ABOUT THE 3 PERFORMANCE OF THIS PARTICULAR C4 POLYMER EVEN BY THE FOLKS WHO 4 HAD USED IT INITIALLY, AND SO IT BECAME ONE OF THOSE ROOT CAUSE 5 CONNECTIONS, IF YOU WILL TO THE DEGRADATION. AND I BELIEVED 6 THEY WERE CORRECT. I BELIEVE THIS POLYMER WAS MUCH LESS CLEAN 7 AND AS A RESULT MUCH LESS DURABLE. 8 Q. AND MAYBE YOU'VE SAID THIS IN ESSENCE ALREADY, BUT WHAT 9 DID YOUR TESTING SHOW? 10 A. WELL, AS I SAY, IT SHOWED LEVELS OF THESE REACTIVE METALS 11 THAT WERE WELL IN EXCESS OF WHAT THEY SHOULD HAVE BEEN. 12 Q. SORRY. WHAT WERE EXAMPLES OF THE REACTIVE METALS? 13 A. OH, THEY WERE TITANIUM, MAGNESIUM, ALUMINUM. THESE ARE 14 COMMON CATALYSTS THAT ARE USED IN THE PRODUCTION OF 15 POLYETHYLENES. 16 Q. AND WHY IS THAT SIGNIFICANT ONCE AGAIN? 17 A. WELL, BECAUSE THOSE REACTIVE METALS IF THEY ARE NOT 18 REMOVED OR OTHERWISE MADE UNREACTIVE IN THE NORMAL WAYS TO JUST 19 GET THEM OUT OF THERE THEY WILL COME BACK TO HAUNT YOU IN TERMS 20 OF THE STABILITY AND THE DURABILITY OF THE RESIN. 21 Q. NOW, DID YOU CONDUCT, DR. DANIELS -- DOES THIS CONCLUDE 22 THE -- 23 A. NO MUCH THERE'S ONE MORE AND THAT'S TENSILE TESTING. 24 Q. AWE. DID YOU CONDUCT TENSILE TESTING? 25 A. WE DID. WE DID. 85 1 Q. AND WHAT DOES THAT TEST MEASURE? 2 A. WELL, IT'S A MEASURE OF HOW MUCH FORCE IT TAKES TO BREAK A 3 FIBER. 4 Q. NOW, COULD YOU EXPLAIN TO THE COURT AND JURY HOW YOU WENT 5 ABOUT DOING THAT. 6 A. SURE. THIS IS A PHOTOGRAPH OF THE DEVICE THAT WAS USED. 7 AND I WANT TO FOCUS YOUR ATTENTION RIGHT IN THE DEAD CENTER OF 8 THE PHOTOGRAPH. THERE'S A GREEN FIBER THAT'S BEING CLAMPED ON 9 EACH END. AND WHAT HAPPENS IS THAT THE TOP PART OF THE SAMPLE 10 IS SUBJECTED TO A PULLING FORCE AT A CONSTANT RATE, AND YOU 11 MEASURE HOW MUCH FORCE IT TAKES TO ELONGATE AND ACTUALLY BREAK 12 THAT PARTICULAR POLYMER. AND THAT'S WHAT THE TENSILE TESTING 13 ON THESE FIBERS WAS ALL ABOUT. 14 Q. AND ON FIBERS FROM HOW MANY FIELDS DID YOU CONDUCT THIS 15 TENSILE TESTING? 16 A. WELL, WE COULD ONLY DO IT ON FIVE BECAUSE THE OTHER FIELDS 17 THAT WE LOOKED AT WERE SO BADLY DEGRADED WE DIDN'T HAVE 18 COMPLETE FIBERS TO TEST AND IT'S JUST UNFAIR AND JUST NOT RIGHT 19 TO TEST SOMETHING THAT DOESN'T HAVE ITS COMPLETE STRUCTURE 20 THERE. 21 Q. WELL, THE SHARDS OF BROKEN FIBERS ON THE FIELDS, WHAT IS 22 THEIR TENSILE STRENGTH? 23 A. IT'S ZERO IT DOESN'T HAVE ANY SENT SILL STRENGTH. THEY 24 ARE BROKEN. THEY ARE GONE. 25 Q. BUT GOING BACK TO WHAT YOU DID TEST? 86 1 A. YES. 2 Q. COULD YOU EXPLAIN THE RESULTS THAT YOU GOT. 3 A. YES. AND I THINK I SAID THERE WERE FIVE FIELDS THAT WERE 4 TESTED IN THIS MANNER. FOUR OF THEM HAD LOST 50 PERCENT OF 5 THEIR TENSILE STRENGTH. REMEMBER WHAT WE DID WAS WE ALSO 6 LOOKED AT THE RETAIN SAMPLES AND THE USED SAMPLES AS A 7 SIDE-BY-SIDE COMPARISON SO WE KNEW WHERE WE STARTED AND WHERE 8 WE WERE IN THE DEGRADATION. FOUR OF THE FIVE HAD LOST OVER 50 9 PERCENT OF THEIR TENSILE STRENGTH, AND THE FIFTH ONE WAS WELL 10 ON ITS WAY IT WAS APPROACHING 50 PERCENT BUT STILL SLIGHTLY 11 ABOVE IT. 12 Q. AND DID YOU HAVE A CONCLUSION THAT YOU COULD EXPRESS WITH 13 A REASONABLE DEGREE OF PROFESSIONAL CERTAINTY AS TO WHETHER 14 THAT FIFTH ONE WOULD HAVE MADE IT TO AN EIGHT YEAR MARK? 15 A. WELL, I BELIEVE THAT I SAID EARLIER THAT THIS DAMAGE IS 16 IRREVERSIBLE AND YOU CAN'T STOP IT. SO MY FEELING IS THAT THAT 17 FIELD WILL EVENTUALLY FAIL AND IT'S WELL ON ITS WAY. 18 Q. DO YOU KNOW THAT -- WITHDRAWN. 19 NOW, YOU SAID THAT BECAUSE THE CHEMICAL PROCESS IS 20 IRREVERSIBLE ONCE IT STARTS IT'S INEVITABLE THAT IT WILL 21 CONTINUE? 22 A. I DID. 23 Q. AND IN THE -- I THINK YOU ALSO SAID THAT YOU TESTED THE 24 BEST FIBERS THAT WERE AVAILABLE FROM THE FIVE FIELDS? 25 A. IF YOU NOTICED WE ARE TESTING GREEN HERE AND THE GREEN IS 87 1 ONE OF THE BETTER PERFORMERS. UNFORTUNATELY WE COULDN'T FIND 2 ANY WHITES TO TEST. THEY WERE TOO BADLY BROKEN ALREADY, WOULD 3 HAVE EASILY FAILED THE TEST. THERE WEREN'T ANY REAL 4 SIGNIFICANT NUMBERS OF THOSE TO BEGIN TO TEST SO THESE ARE 5 ACTUALLY THE BETTER ONES. THE WORST ONES HAD ALREADY UNDERGONE 6 BREAKAGE. 7 Q. AND AS A SCIENTIST DO YOU FROM TIME TO TIME IN YOUR WORK 8 EXTRAPOLATE FROM A LIMITED SAMPLE TO A LARGER SAMPLE? 9 A. YES. AS LONG AS THERE'S A COMMON FACTOR, IT'S A SAFE 10 EXTRAPOLATION. AND I DID SO IN THIS AS WELL. 11 Q. AND I USED THE WORD EXTRAPOLATE, BUT WHAT DOES IT MEAN IN 12 TERMS OF SCIENCE AND YOUR WORK? 13 A. WELL, WHAT IT MEANS IS THAT YOU LOOK AT A SERIES OF 14 PROPERTIES OR A SERIES OF BEHAVIORS A SERIES OF CAUSES AND A 15 SERIES OF EFFECTS AND IF YOU FIND A COMMON THREAD -- AND I 16 BELIEVE THERE IS A COMMON THREAD -- THERE'S REALLY NO REASON TO 17 CONTINUE TESTING MORE AND MORE AND MORE AND MORE. YOU ARE NOT 18 GOING TO SEE ANYTHING THAT'S ANY DIFFERENT IT'S THE SAME 19 OPERATIVE MECHANISM. 20 Q. NOW, DR. DANIELS, WE HAVE DISCUSSED IN SOME DETAIL THANKS 21 TO YOU THE SCIENTIFIC TESTING YOU DID. WHAT CONCLUSIONS DID 22 YOU REACH BASED ON THAT TESTING THAT YOU COULD EXPRESS TO THE 23 COURT AND JURY TO A REASONABLE DEGREE OF PROFESSIONAL 24 CERTAINTY? 25 A. WELL, BASED ON THIS SUMMARY OF TESTING INFORMATION AND THE 88 1 BACKGROUND WORK THAT I DISCUSSED EARLIER IN FORMING MY 2 HYPOTHESIS IT'S MY BELIEF THAT THESE FIBERS ARE INSUFFICIENTLY 3 PROTECTED AGAINST ULTRAVIOLET RADIATION AND THEY ARE GOING OH 4 PREMATURELY FAIL. 5 Q. AND DOES THAT -- WAS THAT COMMENTED UPON OR INFORMED AT 6 ALL BY YOUR REVIEW OF THE 450 FIELD INSPECTION REPORTS? 7 A. YEAH. IF YOU LOOK AT THE 450 FIELD REPORTS AS I SAID YOU 8 SEE THE SAME COMMON BEHAVIOR, THE SAME COLORS FAILING 9 PREMATURELY, THE SAME PHOTOGRAPHS OF THE FIBERS IN THEIR FAILED 10 FORM VERSUS HOW THEY SHOULD HAVE LOOKED AND DID LOOK WHEN THEY 11 WERE INSTALLED. 12 Q. SO DO YOU HAVE AN OPINION THAT YOU CAN EXPRESS TO THE 13 COURT AND JURY WITH A REASONABLE DEGREE OF PROFESSIONAL 14 CERTAINTY AS TO WHETHER YOUR TESTING SAMPLE AND ALL YOUR OTHER 15 WORK WAS ADEQUATE TO SUPPORT YOUR CONCLUSIONS? 16 A. I DO. I BELIEVE IT WAS. I BELIEVE IT FOUND A COMMON 17 CAUSE. I FOUND NO EXCEPTIONS TO THAT CAUSE. 18 Q. I THINK WE DISCUSSED EARLIER YOU RECEIVED WHAT WE HAVE 19 CALLED THE EARLY SAMPLE THAT THERE'S BEEN TESTIMONY AT THAT IT 20 PERFORMED VERY WELL IN EARLY WEAR TESTING. FIRST OF ALL, HOW 21 DID IT LOOK? 22 A. WELL, THE SAMPLE HAD BEEN SUBJECTED TO LIKE I SAID 150 23 CYCLES OF THIS AGGRESSIVE TESTING AND IT WAS PRETTY BADLY BEAT 24 UP. 25 Q. AND DID YOU TEST THE EARLY SAMPLE? 89 1 A. WELL, WE TESTED THE EARLY SAMPLE FOR ITS CHEMISTRY. WE 2 TESTED THE EARLY SAMPLE FOR ITS POLYMER MAKEUP AND ITS HINDERED 3 AMINE LIGHT STABILIZER LEVEL. AND, AS I SAID EARLIER, THE 4 RESULTS OF THAT SHOWED ME THAT THE BASIS, THE POLYMER BASIS OF 5 THIS EARLY SAMPLE WAS DIFFERENT FROM THE EVOLUTION FIBER. IT 6 CONTAINED MORE -- WELL, IT CONTAINED A C8 POLYMER AS WELL AS 7 WAS COMPRISED OF A C4. AND IT CONTAINED MORE OF THIS UV 8 PROTECTANT, MUCH MORE THAN WE HAD SEEN IN ANY OF THE OTHER 9 EVOLUTION FIBERS. 10 Q. HOW MANY PARTS PER MILLION OF THE UV STABILIZER DID YOU 11 FIND AS A RESULT OF TESTING THE EARLY SAMPLE? 12 A. WELL, THERE WAS SO MUCH THERE THAT IT WAS IN EXCESS OF OUR 13 CALIBRATION SO IT WAS APPROXIMATELY AT ABOUT 50,000 PARTS PER 14 MILLION. 15 Q. DO YOU KNOW IN TERMS OF EVOLUTION FIBER THE AMOUNT OF PPMS 16 A STABILIZER IS SUPPOSED TO HAVE? 17 A. YES. AS I REPORTED IN OUR -- THERE'S NOTHING THAT SPEAKS 18 MORE THAN DATA SO WE SAW RANGES THAT RAN FROM JUST UNDER 5,000 19 TO JUST A LITTLE OVER 14,000 PARTS PER MILLION. SO -- 20 Q. WHEN YOU SAY NOTHING DATA THAT WAS THE RESULT OF TESTING? 21 A. THAT WAS THE RESULT OF TESTING, YEAH. 22 Q. SO IN YOUR OPINION IF YOU HAVE ONE TO A REASONABLE DEGREE 23 OF PROFESSIONAL CERTAINTY, WHAT EFFECT, IF ANY, WOULD THAT 24 ADDITIONAL UV STABILIZER HAVE HAD WHEN THE EARLY SAMPLE WAS 25 SUBJECTED TO UV TESTING? 90 1 A. WELL, IT SHOULD BEHAVE IN A SUPERIOR MANNER. 2 Q. JUST A FEW -- WELL, I DON'T WANT TO SAY THAT -- A FEW MORE 3 QUESTIONS IF THERE ARE PORE THAN A FEW. 4 DID YOU DO ANY OTHER TESTING OF THE EARLY SAMPLE? 5 A. YES. AS I SAID, WE TESTED THE CHEMISTRY AND WE TESTED THE 6 HINDERED AMINE LIGHT STABILIZER LEVEL. AND THAT WAS BASICALLY 7 THE SUM AND SUBSTANCE OF IT ALL. 8 Q. WHAT DID YOU FIND AS A RESULT OF THAT TESTING? 9 A. I THINK I ANSWERED THAT QUESTION. BUT I'LL SAY IT AGAIN. 10 I BELIEVE THAT THAT SAMPLE WAS NOT BASED ON THE SAME POLYMER 11 BASIS AS THE EVOLUTION FIBER AND THE EXCESSIVE AMOUNT OR LET'S 12 JUST SAY MUCH LARGER AMOUNT OF HINDERED AMINE LIGHT STABILIZER 13 IN THERE WOULD HAVE GIVEN IT SUPERIOR PROTECTION. 14 Q. IN YOUR OPINION, WHAT EFFECT, IF ANY, WOULD THAT MIX OF 15 POLYMERS HAVE HAD IN UV TESTING OF THE EARLY SAMPLE? 16 A. IT SHOULD HAVE MADE IT MORE DURABLE. IT SHOULD HAVE MADE 17 IT LAST LONGER. 18 Q. NOW, THERE'S BEEN REFERENCE IN THIS CASE TO SOME TESTING 19 BY A GERMAN CHEMICAL COMPANY CALLED BASF IS THE INITIALS? 20 A. YES. 21 Q. YOU KNOW THE COMPANY? 22 A. YES. 23 Q. NOW, ARE YOU FAMILIAR WITH THE UV TESTING CONDUCTED BY 24 BASF IN 2004 OR FIVE ON FIBERS PROVIDED TO IT BY MR. VAN BALEN 25 OF MATTEX? 91 1 A. YES. IN THAT TESTING, THOSE TESTING RESULTS WERE RATHER 2 UNUSUAL. THEY TESTED SOME GREENS AND A WHITE, AND IT WAS VERY 3 SURPRISING TO FIND THAT THE WHITE OUT PERFORMED THE GREEN. 4 Q. WHY SURPRISING? 5 A. WELL, THAT'S NOT WHAT YOU SEE IN EVOLUTION FIBERS. IT'S 6 THE OTHER WAY AROUND. THE WHITES ARE MORE SUSCEPTIBLE TO 7 BREAKAGE AND ATTACK THAN THE GREEN ONES. THIS WAS JUST EXACTLY 8 THE OPPOSITE. 9 Q. AND IN YOUR VIEW OF -- YOUR REVIEW OF THE FIELD INSPECTION 10 REPORTS HOW DOES WHITE EVOLUTION FIBER PERFORM RELATIVE TO THE 11 FIELD GREEN? 12 A. IT'S MUCH WORSE. 13 Q. SO YOU HAVE A SCIENTIFIC EXPLANATION FOR WHAT YOU OBSERVED 14 IN THE BASF REPORTS? 15 A. WELL, THE ONLY CONCLUSION I CAN REACH IS THAT WHAT WAS 16 TESTED EARLY ON IN 2004 WAS NOT REPRESENTATIVE OF WHAT 17 EVOLUTION FIBERS WERE WHEN THEY WERE MANUFACTURED AND INSTALLED 18 BY FIELDTURF. 19 Q. AND HOW DID THE OLIVE FIBER IF YOU REMEMBER PERFORM IN 20 BASF 2004 TESTING? 21 A. WELL IT DID QUITE WELL. IT SUSTAINED ITSELF UNDER SOME -- 22 MANY NUMBERS OF CYCLES OF WEAR AND THAT RETAINED QUITE A HUGE 23 PERCENTAGE OF ITS TENSILE STRENGTH. 24 Q. ARE YOU FAMILIAR WITH WORK THAT BASF DID YEARS LATER IN 25 2008 REGARDING TESTING OF EVOLUTION FIBER? 92 1 A. YES. THEY TESTED A SERIES OF COLORS, MOSTLY GREENS. AND 2 THE REMARKABLE OUTCOME THERE WAS THAT THE OLIVE GREEN IN THAT 3 PARTICULAR CASE DIDN'T PERFORM NEARLY AS WELL AS THE OLIVE 4 GREEN IN THE 2004 TESTING. 5 Q. WHAT IF ANY CONCLUSIONS DID YOU DRAW FROM THAT DIFFERENCE 6 IN RESULTS? 7 A. WELL, THE ONLY CONCLUSION I CAN DRAW IS THAT WE WEREN'T 8 SEEING TESTS MADE ON THE SAME MATERIAL. THEY WERE DIFFERENT. 9 Q. NOW JUST FINALLY, ABOUT TWO MORE MINUTES, YOUR HONOR, OR 10 LESS -- HAVE YOU READ THE EXPERT REPORTS OF TENCATE'S CHEMISTRY 11 EXPERT DR. FRED WILLARD? 12 A. YES, I HAVE. 13 Q. DID YOU COMPARE HIS TEST RESULTS AGAINST YOUR TEST 14 RESULTS? 15 A. I WOULD HAVE LOVED TO HAVE EXAMINE HE WANT THAT DR. 16 WILLARD DIDN'T DO ANY TESTING ON THE DEGRADED FIBERS SO THERE 17 WAS NOTHING WE COULD COMPARE. 18 Q. IN YOUR OPINION, DR. DANIELS, IS IT POSSIBLE TO PROPERLY 19 CONDUCT A FAILURE ANALYSIS WITHOUT TESTING THE FAILED PRODUCT 20 WHEN THAT PRODUCT IS AVAILABLE? 21 A. NO. 22 Q. 23 MR. KAPLAN: I HAVE NO FURTHER QUESTIONS, YOUR HONOR. 24 THE COURT: MR. PENDER, BREAK FOR LUNCH? 25 MR. PENDER: YES. 93 1 THE COURT: LADIES AND GENTLEMEN, WE ARE GOING TO 2 TAKE OUR LUNCH BREAK AT THIS TIME. DURING THE LUNCH BREAK, 3 REMEMBER MY INSTRUCTIONS TO YOU NOT TO DISCUSS THE CASE WITH 4 ANYONE, NOT TO ALLOW ANYONE TO DISCUSS THE CASE IN YOUR 5 PRESENCE. DON'T EVEN BEGIN DISCUSSING THE CASE AMONG 6 YOURSELVES YET AND YOU ARE EXCUSED UNTIL 1:30 AND WE WILL 7 RESUME THE TRIAL AT THAT TIME. 8 COURT'S IN RECESS FOR LUNCH UNTIL 1:30. 9 (A LUNCH RECESS WAS TAKEN.) 10 THE COURT: READY, MR. PENDER? 11 MR. PENDER: YES, SIR. 12 THE COURT: WE'RE READY FOR THE JURY. 13 (JURY ENTERED THE COURTROOM.) 14 THE COURT: CROSS-EXAMINATION, MR. PENDER? 15 MR. PENDER: YES, YOUR HONOR. THANK YOU. 16 - - - 17 CROSS-EXAMINATION 18 BY MR. PENDER: 19 Q. GOOD AFTERNOON, DR. DANIELS. NICE TO SEE YOU AGAIN. 20 A. NICE TO SEE YOU. 21 Q. MY NAME IS TOM PENDER. WE MET AT YOUR DEPOSITION. DO YOU 22 REMEMBER THAT? 23 A. I DO. 24 Q. AT MR. KAPLAN'S OFFICE IN TIMES SQUARE? 25 A. I DO. 94 1 Q. DOCTOR I THINK YOU MENTIONED THIS BUT I WANT TO BRING THIS 2 OUT TO THE JURY YOU HAVE CONSULTED AS AN EXPERT WITNESS FOR A 3 TOTAL OF ABOUT 12 CASES BEFORE FIELDTURF HIRED YOU IN THIS 4 CASE? 5 A. WELL, I THINK THE NUMBER IS A LITTLE CLOSER TO TEN, BUT 6 THAT'S FINE. 7 Q. AND YOU HAD TESTIFIED AS YOU WERE DOING TODAY AS AN EXPERT 8 IN A COURT OF LAW ONLY TWICE BEFORE? 9 A. YES. 10 Q. YOU CONSIDER YOURSELF A PART-TIME CONSULTANT, DON'T YOU, 11 SIR? 12 A. A PART-TIME, YES. 13 Q. YOU HAVE NEVER BEFORE IN YOUR YEARS TESTIFIED IN A CASE AS 14 AN EXPERT INVOLVING ALLEGATIONS OF ARTIFICIAL TURF FAILURE, 15 HAVE YOU? 16 A. NO. 17 Q. AND YOU HAVE NEVER IN YOUR YEARS PARTICIPATED IN DRAFTING 18 INDUSTRY STANDARDS RELATED TO ARTIFICIAL TURF FIBERS, HAVE YOU? 19 A. NO, I HAVEN'T. 20 Q. YOU HAVE NEVER WORKED FOR A COMPANY THAT MANUFACTURES 21 ARTIFICIAL TURF FIBERS, HAVE YOU? 22 A. NO. 23 Q. YOU'VE NEVER WORKED FOR A COMPANY THAT MANUFACTURES 24 ARTIFICIAL TURF EITHER, HAVE YOU? 25 A. NO. 95 1 Q. YOU'VE NEVER DEVELOPED OR DESIGNED AN ARTIFICIAL TURF 2 SYSTEM OR AN ARTIFICIAL TURF FIBER, HAVE YOU? 3 A. NO. 4 Q. AND YOU'VE NEVER PARTICIPATED IN THE DEVELOPMENT OR DESIGN 5 OF ARTIFICIAL TURF FIBER, HAVE YOU? 6 A. NO. 7 Q. IN FACT, BEFORE YOU WERE HIRED IN THIS CASE, YOU HAD NEVER 8 HAD OCCASION TO CONSIDER THE DESIGNS OR CHEMICAL COMPONENTS 9 THAT MIGHT BE APPROPRIATE FOR ARTIFICIAL TURF FIBER, HAD YOU? 10 A. NOT ARTIFICIAL TURF FIBER. I HAVE CERTAINLY WORKED WITH 11 THE POLYMERS IN QUESTION. 12 Q. THERE ARE PEOPLE OUT IN THE WORLD, THOUGH, SIR, THE WORLDS 13 OF ARTIFICIAL TURF FIBER MANUFACTURING WHO DO KNOW WHAT DESIGNS 14 AND CHEMICAL COMPONENTS ARE APPROPRIATE FOR AN ARTIFICIAL TURF 15 SYSTEM, AREN'T THERE? 16 A. I WOULD ASSUME SO. 17 Q. AND YOU'RE JUST NOT ONE OF THOSE PEOPLE, ARE YOU? 18 A. WELL, AGO AS YOU STATED I HAVE NOT WORKED FOR ONE OF THOSE 19 FIRMS. 20 Q. AND YOU DIDN'T TALK TO ANY OF THOSE PEOPLE BEFORE OFFERING 21 YOUR EXPERT OPINIONS, DID YOU? 22 A. NO. 23 Q. YOU ARE NOT AN EXPERT IN FIBER MANUFACTURING, ARE YOU, 24 SIR? 25 A. PLASTIC FIBERS? 96 1 Q. CORRECT. 2 A. NO. 3 Q. YOU'RE NOT AN EXPERT ON THE INDUSTRY STANDARDS AND 4 GUIDELINES THAT APPLY TO A FIBER MANUFACTURER, ARE YOU? 5 A. NO. 6 Q. AND WHEN YOU ISSUED YOUR OPINIONS AND REPORTS IN THIS 7 CASE, YOU DIDN'T EVEN KNOW IF THERE WERE STANDARDS OR 8 GUIDELINES THAT GOVERNED MY CLIENT'S CONDUCT IN THIS CASE, DID 9 YOU? 10 A. I'M NOT SURE I UNDERSTAND YOUR QUESTION STANDARDS THAT 11 GOVERN YOUR CLIENT'S CONDUCT. WOULD YOU EXPLAIN THAT, PLEASE. 12 Q. WHEN YOU ISSUED YOUR OPINIONS IN THIS CASE, YOU DID NOT 13 KNOW IF THERE WERE ANY STANDARDS OR INDUSTRY GUIDELINES FOR 14 TURF FIBER MANUFACTURERS, DID YOU? 15 A. OKAY. I UNDERSTAND YOUR QUESTION. NO. 16 Q. YOU ARE NOT AN EXPERT IN ARTIFICIAL TURF DESIGN, 17 DEVELOPMENT OR MANUFACTURE, ARE YOU? 18 A. NO. 19 Q. YOU TALKED ABOUT YOUR TEACHING POSITION AT THE COMMUNITY 20 COLLEGE AND AT AKRON UNIVERSITY. YOU DO NOT TEACH ON THE 21 SUBJECT MATTER OF ARTIFICIAL TURF DESIGN, DEVELOPMENT OR 22 MANUFACTURE, DO YOU? 23 A. NO. 24 Q. AND IN YOUR EXTENSIVE EDUCATION, YOU NEVER TOOK A COURSE 25 IN ARTIFICIAL TURF DESIGN, DEVELOPMENT OR MANUFACTURE, DID YOU? 97 1 A. WELL, THERE WERE NONE SO NO, I DIDN'T. 2 Q. YOU TALKED TO US ABOUT THE 25 PUBLICATIONS, TEXTBOOKS AND 3 THINGS THAT YOU HAVE WRITTEN. THOSE PUBLICATIONS NONE OF THEM 4 RELATE TO THE DESIGN, DEVELOPMENT OR MANUFACTURE OF ARTIFICIAL 5 TURF FIBER, DO THEY? 6 A. NO. 7 Q. YOU'VE NEVER EVEN GIVEN A PROFESSIONAL LECTURE OR A 8 PROFESSIONAL PRESENTATION ON THE DESIGN, DEVELOPMENT OR 9 MANUFACTURE OF ARTIFICIAL TURF FIBERS, HAVE YOU? 10 A. NO. 11 Q. AND WHEN YOU ISSUED YOUR REPORTS IN THIS CASE, YOU HAD 12 NEVER READ ANY STUDIES OR PUBLISHED LITERATURE RELATING TO THE 13 DESIGN, DEVELOPMENT OR MANUFACTURE OF ARTIFICIAL TURF FIBER, 14 HAD YOU? 15 A. WELL, I HAVE SEEN SOME OF THE VIDEO PRESENTATIONS ON 16 MANUFACTURING. I'M FAMILIAR WITH EXTRUSION. BUT SPECIFICALLY 17 FOR ARTIFICIAL TURF, NO. 18 Q. IN YOUR PROFESSIONAL CONSULTING CAREER AND YOUR WORK 19 HISTORY, YOU'VE NEVER BEEN BEFORE ASKED TO PERFORM A ROOT CAUSE 20 ANALYSIS OF AN ARTIFICIAL TURF SYSTEM FAILURE, HAVE YOU? 21 A. NO. BUT I HAVE CONDUCTED A ROOT CAUSE ANALYSES OF THESE 22 PARTICULAR TYPES OF POLYMERS IN THE PAST AND I BELIEVE THE SAME 23 SCIENCE APPLIES. 24 Q. IN YOUR PROFESSIONAL CONSULTING CAREER YOU HAVE NEVER 25 BEFORE BEEN ASKED TO PERFORM A ROOT CAUSE ANALYSIS OF THE 98 1 FAILURE OF AN ARTIFICIAL TURF FIBER, HAD YOU? 2 A. NO. 3 Q. NOW, WE HEARD IN THIS COURTROOM THAT FIELDTURF DID SOME 4 DETECTIVE WORK. I THINK IN OPENING STATEMENTS COUNSEL REFERRED 5 TO IT AS EXHAUSTIVE SCIENTIFIC ANALYSIS. BUT AT THE TIME THAT 6 YOU RENDERED YOUR REPORTS AND FINAL OPINIONS IN THIS CASE 7 EVERYTHING THAT YOU REVIEWED AND ANALYZED WAS GIVEN TO YOU BY 8 FIELDTURF AND THEIR LAWYERS, RIGHT? 9 A. I'M NOT SURE WHAT I MEAN BY EVERYTHING MUCH THE DATA THAT 10 I DETERMINED WAS NOT GIVEN TO ME BY COUNSEL. 11 Q. CERTAINLY THE DEPOSITIONS WERE GIVEN TO YOU BY COUNSEL? 12 A. YOU MEAN BACKGROUND MATERIAL AND DEPOSITIONS? 13 Q. YES. 14 A. YES. 15 Q. THE PLEADINGS WERE GIVEN TO YOU BY COUNSEL? 16 A. YES. 17 Q. THE AGREEMENTS, ONE AGREEMENT WAS GIVEN TO YOU BY COUNSEL? 18 A. IT WAS. 19 Q. FIBER SAMPLES TO TEST WERE GIVEN TO YOU BY COUNSEL OR 20 FIELDTURF? 21 A. YES. 22 Q. SO YOU KNEW THERE WERE DEPOSITIONS THAT WERE TAKEN IN THIS 23 CASE, CORRECT? 24 A. YES. 25 Q. CERTAINLY A GOOD DETECTIVE WANTS TO GET A STATEMENT FROM 99 1 ALL OF THE WITNESSES, RIGHT? 2 A. ALL OF THE WITNESSES? 3 Q. RIGHT. 4 A. MY ROLE WAS TO DETERMINE THE ROOT CAUSE OF THE PREMATURE 5 FAILURES. I'M NOT SURE THE RELEVANCE OF GETTING STATEMENTS 6 FROM ALL OF THE WITNESSES, HOW THAT APPLIES TO THE SCIENCE 7 HERE. 8 Q. OKAY. WELL, WE WERE TOLD IT WAS A DETECTIVE, A DETECTIVE 9 JOB. BUT I WILL MOVE ON, SIR. 10 WERE YOU AWARE THAT THERE WERE 20 DEPOSITIONS OF FACT 11 WITNESSES TAKEN IN THIS CASE? 12 A. I'M NOT AWARE OF THE TOTAL NUMBER, NO. 13 Q. SO THE NUMBER THAT YOU WERE ACTUALLY PROVIDED WITH AND RE 14 SUED BEFORE YOU OFFERED YOUR OPINIONS YOU REVIEWED FIVE 15 DEPOSITIONS, CORRECT? 16 A. YES. 17 Q. AND YOU DON'T KNOW WHY FIELDTURF'S COUNSEL SELECTED THOSE 18 FIVE FOR YOU TO REVIEW, DO YOU? 19 A. I BELIEVE THAT THEY WERE RELEVANT TO THE TECHNICAL 20 PORTIONS OF THE BACKGROUND MATERIAL. 21 Q. YOU DON'T KNOW WHY THEY DIDN'T SEND YOU ANY OF THE OTHER 22 15 DEPOSITIONS THAT WERE TAKEN IN THIS CASE, DO YOU? 23 A. I DON'T. 24 Q. AND YOU DON'T KNOW WHETHER OR NOT THOSE WERE OF ANY 25 FIELDTURF EMPLOYEES WHO MIGHT HAVE TECHNICAL INFORMATION, DO 100 1 YOU? 2 A. I DIDN'T SEE THEM. 3 Q. DID YOU KNOW THAT THERE WERE ACTUALLY THREE CONTRACTS WITH 4 WARRANTIES IN THIS CASE, ONE FROM 2005, ONE FROM 2006 AND ONE 5 FROM 2008? 6 A. NO. I HAVE ONLY SEEN ONE. 7 Q. THE ONLY ONE YOU WERE GIVEN WAS THE 2008 CONTRACT AND 8 SPECIFICATION, CORRECT? 9 A. THAT'S RIGHT. THAT CAME UP DURING MY DEPOSITION AND I 10 ASKED LATER ABOUT THAT AND I ASKED COUNSEL IF THEY HAD EVER 11 SEEN IT AND THEY SAID THEY HADN'T SO I DIDN'T SEE IT. 12 Q. OKAY. THEY DIDN'T GIVE YOU THE 2005 SPECIFICATIONS, SHE 13 DIDN'T GIVE YOU THE 2006 SPECIFICATIONS, DID THEY? 14 A. NO. 15 Q. AND SINCE YOU HAD NOT REVIEWED MY CLIENT'S SPECIFICATIONS, 16 THEIR TENSILE STRENGTH SPECIFICATIONS FOR THEIR PRODUCTS UNDER 17 THE 2005 OR 2006 AGREEMENTS AT THE TIME YOU ISSUED YOUR 18 OPINIONS YOU HAD NO WAY OF KNOWING WHETHER OR NOT THE FIBER YOU 19 ANALYZED COMPLIED WITH THOSE SPECIFICATIONS, DID YOU? 20 A. I DIDN'T SEE THE 2005 NOR THE 2006 SPECIFICATION. I SAW 21 THE LATER ONE. 22 Q. SO YOU DON'T KNOW WHETHER OR NOT -- AT THE TIME YOU 23 OFFERED YOUR OPINIONS AND REPORTS IN THIS CASE YOU DIDN'T KNOW 24 WHETHER OR NOT MY CLIENT'S PRODUCT COMPLIED WITH ITS 2005 OR 25 2006 SPECIFICATIONS, CORRECT? 101 1 A. AS I SAID, I'M NOT FAMILIAR WITH THE TWO SPECIFICATIONS 2 YOU HAVE JUST CITED. 3 Q. BECAUSE YOU'RE NOT FAMILIAR WITH THEM IF ANY OF THE FIBERS 4 THAT YOU HAVE ANALYZED IN THIS CASE ARE FROM THAT 2005 OR 2006 5 TIME PERIOD YOU HAVE NO OPINIONS AS TO WHETHER OR NOT THEY MEET 6 A WARRANTY, CORRECT? 7 MR. KAPLAN: OBJECTION, YOUR HONOR. LACKS 8 FOUNDATION. COUNSEL SEEMS TO BE SUGGESTING THAT THERE ARE 9 SPECS FOR THE 2005, 2006 CONTRACTS AND IT'S ASSUMED IN HIS 10 QUESTIONS. THAT'S IMPROPER. 11 THE COURT: HE IS ON CROSS-EXAMINATION, MR. KAPLAN. 12 OVERRULED. 13 BY MR. PENDER: 14 Q. COULD I GET AN ANSWER TO THAT QUESTION? 15 A. I'M SORRY COULD YOU REPEAT THE QUESTION, MR. PENDER? 16 SORRY. 17 Q. YOU DIDN'T HAVE THE 2005, YOU DIDN'T HAVE THE 2006 PRODUCT 18 SPECIFICATIONS SO AT THE TIME THAT YOU ISSUED YOUR OPINIONS IN 19 THIS CASE YOU WEREN'T ABLE TO OFFER ANY AS TO WHETHER THE 20 FIBERS YOU EXAMINED COMPLIED WITH THROWS STANDARDS OR NOT? YOU 21 DIDN'T HAVE THE STANDARDS, RIGHT? 22 A. I DID NOT HAVE THE STANDARDS. 23 Q. IN ADDITION TO DECIDING WHAT DOCUMENTS THAT THEY WOULD 24 HAVE YOU LOOK AT, FIELDTURF'S COUNSEL ALSO ASKED YOU TO LOOK AT 25 THE FIBER, RIGHT? 102 1 A. YES. 2 Q. FIELDTURF'S COUNSEL DEFINED FOR YOU WHAT QUESTION ONE WAS, 3 QUESTION ONE THEY WANTED YOU TO ANSWER WAS LOOK AT THE FIBER, 4 RIGHT? 5 A. NO. QUESTION ONE WAS THIS. WHAT'S THE ROOT CAUSE OF THE 6 FAILURE. AND SINCE YOU HAVE DEGRADED FIELDS AND CONTROLLED 7 SAMPLES CAN YOU TELL THE DIFFERENCE AND CAN YOU TELL WHAT'S 8 GOING ON. AND THAT WAS THE SCOPE OF WHAT I DID. 9 Q. BUT RECALL GIVING A DEPOSITION IN THIS CASE, SIR? 10 A. I DO. 11 Q. OCTOBER 12TH OF 2012? 12 A. YES, SIR. 13 Q. MR. AVANT COULD YOU PULL UP THE VIDEO FROM PAGE 110 LINES 14 8 THROUGH 19. 15 (VIDEOTAPE PLAYED AS FOLLOWS.) 16 Q. FIELDTURF DID NOT ASK YOU TO MAKE A TECHNICAL I OR 17 CRITICAL ANALYSIS OF THEIR TURF SYSTEM IN TERMS OF CHEMICAL OR 18 POLYMER SCIENCE ISSUES, DID THEY? 19 A. I THINK I STATED THE ANSWER TO THAT QUESTION THE ANALYSES 20 YOU SEE IN THIS -- IN THESE REPORTS ARE DOMINATED BY ANALYSES 21 OF THE FIBERS THEMSELVES. 22 Q. FIELDTURF ASKED YOU TO ANALYZE THE FIBER? 23 A. WELL, THEY ASKED ABOUT THE FIBER FAILURE, AND THAT'S WHAT 24 WE ANALYZED FOR. 25 (VIDEOTAPE CONCLUDED.) 103 1 A. SO MAY I ASK WHAT YOUR QUESTION WAS? 2 BY MR. PENDER: 3 Q. NO. WE WILL MOVE ON. 4 YOU DETERMINED THAT MY CLIENT'S FIBER WAS THE PROBLEM WITH 5 THESE FIELDS AND THEN YOU DESIGNED A PROTOCOL TO ANALYZE WHAT 6 YOU SAW, RIGHT? 7 A. NO, YOU HAVE IT BACKWARDS. I ANALYZED THE FIBER AND I 8 DETERMINED WHAT THE MECHANISM WAS. 9 Q. MR. AVANT WOULD YOU PULL UP PAGES 111, LINES 22 THROUGH 10 PAGE 112, LINE 10. 11 (VIDEOTAPED DEPOSITION PLAYED AS FOLLOWS.) 12 Q. SO YOU SAID THEY TOLD YOU THE FIBER WAS THE PROBLEM SO YOU 13 DECIDE TODAY LOOK AT THE FIBER AND THEN YOU CAME ONE THE FOUR 14 DISCRETE QUESTIONS, ALL OF WHICH CENTERED ON MY CLIENTS' FIBER 15 AS A CAUSAL -- AS A CAUSE AND EFFECT OF THE FAILURE, RIGHT? 16 A. WELL, I WASN'T TOLD THAT THE FIBER WAS THE PROBLEM. WE 17 DETERMINED THE PROBLEM WAS THE FIBER AND DESIGNED A PROTOCOL TO 18 ANALYZE WHAT WE SAW. 19 (VIDEOTAPE CONCLUDED.) 20 BY MR. PENDER: 21 Q. DO YOU RECALL BEING ASKED THAT QUESTION AND GIVING THAT 22 ANSWER? 23 A. YES. 24 Q. YOUR ONLY ANALYSIS WAS OF MY CLIENT'S FIBER BECAUSE YOU 25 FELT THAT THERE WAS NO REASON TO EXPECT ANY OTHER CAUSATIVE 104 1 FACTOR, CORRECT? 2 A. NO. THAT'S NOT CORRECT. I DISAGREE. 3 Q. MR. AVANT, WOULD YOU PULL UP PAGE 113 OF DR. DANIELS' 4 DEPOSITION, LINES 9 THROUGH 17. 5 (DEPOSITION PLAYED AS FOLLOWS.) 6 Q. DID COUNSEL FOR FIELDTURF DIRECT YOU TO ANSWER ONLY THE 7 QUESTIONS RELATED TO FIBER DESIGN AND CHEMISTRY AND NOT TO LOOK 8 AT OTHER POTENTIAL CAUSES FOR THE FAILURE? 9 A. I THINK I ANSWERED THAT. MY ANALYSES WERE DONE ON THE 10 FIBERS. THERE WAS NO REASON TO EXPECT THAT THERE WERE OTHER 11 CAUSATIVE FACTORS, AND THE RESULTS VERIFIED THAT. 12 (VIDEOTAPE CONCLUDED.) 13 BY MR. PENDER: 14 Q. YOU RECALL BEING ASKED THAT QUESTION AND GIVING THAT 15 ANSWER? 16 A. YES. AND AS I CORRECTED IN MY DEPOSITION UPON 17 RECOLLECTION, WHEN YOU USE THE TERM SYSTEM IT WASN'T CLEAR TO 18 ME THE QUESTION THAT YOU WERE TALKING ABOUT THE EFFECT OF 19 INFILL THE EFFECT OF WEAR FOR EXAMPLE. WHEN I THOUGHT ABOUT 20 WHAT YOU HAD ASKED AND THE TERM SYSTEM WAS BROAD ENOUGH TO 21 INCLUDE THESE OTHER FACTORS I MADE THAT CORRECTION UPON 22 RECOLLECTION OF WHAT WAS ASKED AND WHAT I HAD ACTUALLY DONE. 23 Q. YOU NARROWED YOUR FOCUS TO THE CHEMICAL DESIGN ISSUES 24 RELATED TO THE FIBER ITSELF, DIDN'T YOU? 25 A. UPON RULING OUT OTHER THINGS WHICH WE TESTED FOR AND AS I 105 1 EXPLAINED THIS MORNING, THE CAUSATIVE EFFECT WAS VERY CLEAR. 2 WE TESTED SOME OF THE OTHER HYPOTHESES, THE EFFECT OF INFILL WE 3 SAW NO CHANGE, THE EFFECT OF MECHANICAL FAILURE WE SAW NO 4 CHANGE. THE REFUTABLE FACTOR IS THAT THE FIBER IS NOT 5 PROTECTED AS I SAID THIS MORNING AND ALL OF THE EVIDENCE POINTS 6 TO THAT. 7 THE COURT: EXCUSE ME MR. PENDER. EXCUSE ME. 8 MR. KAPLAN, WOULD YOU AND MR. CREMER AS SOON AS 9 POSSIBLE ARRANGE FOR ONE OF YOUR ASSOCIATES TO E-MAIL MY 10 SECRETARY YOUR REQUESTS TO CHARGE. SHE CAN'T COPY THEM OFF 11 WHAT'S FILED ON CM/ECF AND THAT. 12 MR. KAPLAN: YES, YOUR HONOR, WE WILL DO IT AS SOON 13 AS POSSIBLE. 14 THE COURT: IT WOULD BE EXTREMELY HELPFUL TO US. 15 GO AHEAD, MR. PENDER. SORRY FOR THE INTERRUPTION. 16 MR. PENDER: THANK YOU. 17 BY MR. PENDER: 18 Q. ALL RIGHT. YOU SAID YOU RULED OUT OTHER FACTORS. LET'S 19 TALK ABOUT SOME OTHER FACTORS THAT YOU DIDN'T RULE OUT. YOU 20 DIDN'T CONSIDER THE DENIER OR THE FACE WEIGHT OF FIELDTURF'S 21 PRODUCTS WHEN YOU ANALYZED THESE FIBERS, DID YOU? 22 A. OH, THE FIBERS WERE WHAT THE FIBERS WERE AND THAT'S WHAT 23 WE ANALYZED. 24 Q. AND YOU DID NOT CONSIDER OR ANALYZE THE GAUGE OR THE WIDTH 25 OF THE TUFTED ROWS OF FIBER IN THIS FIELDTURF SYSTEM, DID YOU? 106 1 A. NO. 2 Q. YOU DID NOT CONSIDER COATING OTHER THAN THAT YOU NOTICED 3 THAT SOME SAMPLES WERE FINGER COATED AND OTHERS WERE SOLID 4 COATED, RIGHT? 5 A. I DID NOTICE THAT, YES. 6 Q. AND IN YOUR INITIAL WORK THE LEVEL OF INFILL WAS NOT 7 SOMETHING THAT YOU STUDIED, WAS IT? 8 A. NO. THE LEVEL OF INFILL WAS NOT SOMETHING THAT I STUDIED. 9 BUT I THINK I MENTIONED TO YOU THAT THE LEVEL OF INFILL IN MY 10 OPINION DIDN'T AN ISSUE HERE: BUT -- NO, I DIDN'T STUDY IT. 11 THAT'S CORRECT. 12 Q. YOU DIDN'T EVEN KNOW WHAT FIELDTURF'S STANDARD LEVEL OF 13 INFILL REQUIRED, DID YOU? 14 A. I DIDN'T PRECISELY KNOW AT THE TIME OF THE DEPOSITION, NO. 15 Q. AND YOU DID NOT KNOW HOW MANY FIELD REPORTS HAD FINDINGS 16 OF LOW INFILL IN THEM, DID YOU? 17 A. WELL, I DID READ THE 450 AND THERE AS I SAID WAS THE 18 OCCASIONAL MENTION OF THAT. BUT IT THERE WASN'T AN 19 OVERWHELMING NUMBER. 20 Q. YOU HAD NOT REVIEWED THE TESTIMONY OF ANY FIELDTURF 21 EMPLOYEES TO DETERMINE IF THERE WERE ANY CURRENT OR FORMER 22 EMPLOYEES WHO HAVE GIVEN EVIDENCE ABOUT LOW INFILL BEING A 23 CAUSE OF FIELD FAILURES AT THIS COMPANY, HAVE YOU? 24 A. THE ONLY FIELDTURF DEPOSITION THAT I RECALL WAS OF THAT OF 25 MR. ROGERS. 107 1 Q. AND YOU WEREN'T PROVIDED WITH FIELDTURF'S QUALITY REVIEW 2 BOARD BEFORE YOU GAVE YOUR OPINIONS IN THIS CASE, WERE YOU? 3 A. WELL, I ACTUALLY DID SEE SOMETHING LIKE THAT IN MY REVIEW 4 AND I DID READ SOME OF THE FINDINGS. BUT -- 5 Q. ONE OF THE PRIMARY PROBLEMS, QUOTE-UNQUOTE PRIMARY 6 PROBLEMS THAT THE QUALITY REVIEW BOARD OF FIELDTURF FOUND WAS 7 LOW INFILL, RIGHT? 8 A. I DID SEE IT MENTIONED A FEW TIMES, YES. 9 Q. THIS ROOT CAUSE EXHAUSTIVE SCIENTIFIC ANALYSIS YOU DID IN 10 THIS CASE DID NOT INCLUDE ANY ANALYSIS OF THE CONDUCT OF NTH OR 11 ANYONE ELSE OTHER THAN MY CLIENTS, RIGHT? 12 A. COULD YOU EXPLAIN WHAT YOU MEAN BY CONDUCT, SIR. 13 Q. THEIR INVOLVEMENT IN EITHER THE MANUFACTURING, DEVELOPMENT 14 OR DESIGN OF SOME ISSUE THAT MAY BE CAUSALLY RELATED TO THESE 15 FAILURES. DID YOU NOT ANALYZE THEIR CONDUCT IN THAT SENSE, DID 16 YOU? 17 A. YOU ARE TALKING ABOUT FIELDTURF NOW OR -- 18 Q. CORRECT. 19 A. NO, I DIDN'T ANALYZE IN YOUR DEFINITION FIELDTURF'S 20 CONDUCT IN THAT DEFINITION. 21 Q. YOU DON'T KNOW OF ANY EVIDENCE THAT THIS FIBER AND ITS 22 GEOMETRY WHEN IT WAS DELIVERED TO FIELDTURF WAS IN ANY WAY 23 DIFFERENT THAN WHAT HAD BEEN SHOWN TO FIELDTURF BEFORE 24 DELIVERY? 25 A. COULD YOU REPEAT THAT? SIR? 108 1 Q. YOU DON'T KNOW OF ANY EVIDENCE THAT THIS FIBER AND ITS 2 GEOMETRY WHEN IT WAS DELIVERED TO FIELDTURF WAS IN ANY WAY 3 DIFFERENT THAN WHAT HAD BEEN SHOWN TO FIELDTURF BEFORE 4 DELIVERY, DO YOU? 5 A. WELL, I THINK I SAID THIS MORNING THAT THE EARLY SAMPLE 6 WAS DIFFERENT AND THAT'S NOT A GEOMETRY THING THAT'S A 7 CHEMISTRY THING. 8 Q. I ASKED ABOUT THE FIBER OR THE GEOMETRY. 9 A. I'M SORRY. DIDN'T I ANSWER THAT? THE FIBER WAS DIFFERENT 10 CHEMICALLY. 11 Q. OKAY. MR. AVANT WOULD YOU PLAY PAGE 201 OF DR. DANIELS' 12 DEPOSITION, LINES 11 THROUGH 16. 13 (VIDEOTAPE PLAYED AS FOLLOWS.) 14 Q. IS THERE ANY EVIDENCE THAT YOU SAW THAT THIS FIBER AND ITS 15 GEOMETRY WHEN IT WAS DELIVERED TO FIELDTURF WAS IN ANY WAY 16 DIFFERENT THAN WHAT HAD BEEN SHOWN TO FIELDTURF BEFORE 17 DELIVERY? 18 A. NO, I DON'T KNOW THAT. 19 (VIDEOTAPE CONCLUDED.) 20 BY MR. PENDER: 21 Q. THERE'S WHAT YOU SAID IN YOUR DEPOSITION, I DON'T KNOW 22 THAT IT'S ANY DIFFERENT? 23 A. WELL, I DIDN'T KNOW THAT YOUR POINT OF REFERENCE WAS THE 24 EARLY SAMPLE IN YOUR QUESTION. 25 Q. OH, OKAY. YOU DIDN'T KNOW IF ANY OF THE FIELDS HAD BEEN 109 1 SUBJECTED TO PROPER MAINTENANCE, MAINTENANCE WAS NOT SOMETHING 2 YOU ANALYZED? 3 A. DID NOT ANALYZE MAINTENANCE. 4 Q. YOU DIDN'T MAKE ANY EXHAUSTIVE INVESTIGATION, TAKE ANY 5 INTERVIEWS, READ ANY STATEMENTS ABOUT HOW THESE FIELDS WERE 6 MAINTAINED, DID YOU? 7 A. NO. OTHER THAN WHAT WAS IN THE FIELD REPORTS. 8 Q. YOU NEVER ANALYZED OR DID ANY TESTING ON THE ADEQUACY OF 9 FIELDTURF'S TUFT BIND, DID YOU? 10 A. NO, I DID NOT DO TUFT BIND TESTING. 11 Q. YOU DIDN'T DO ANY INVESTIGATION TO FIND OUT THE AMOUNT OF 12 USAGE OF ANY OF THE CLAIMED FIELDS IN THIS CASE, DID YOU? 13 A. NO. 14 Q. SO THE PHOTOGRAPHS THAT YOU HAVE SHOWN IN THIS CASE, THE 15 FIBERS, THE FIELDS THEY CAME FROM, YOU DON'T KNOW IF THEY WERE 16 STADIUM FIELDS OR WHETHER OR NOT THEY WERE JUST HIGH SCHOOL 17 FIELDS THAT MIGHT BE USED FOR FOOTBALL, MEN'S AND WOMEN'S 18 LACROSSE, MEN'S AND WOMEN'S SOCCER, P E CLASS, GRADUATION 19 CEREMONIES, MARCHING BAND EXERCISES, YOU DIDN'T ANALYZE ANY OF 20 THAT, DID YOU? 21 A. NO. BECAUSE THAT PRESUMES AGAIN A MECHANISM THAT HAS 22 SOMETHING TO DO WITH WEAR. AND AS I SAID, WE DID TEST FOR WEAR 23 AND I DON'T BELIEVE IT'S A FACTOR. 24 Q. WE WILL GET TO THAT IN A BIT, SIR. 25 FOUR HUNDRED FIFTY FIELDS OR FIELD REPORTS YOU TALKED 110 1 ABOUT. YOU DID COMPARISON TESTING BETWEEN A RETAIN OR SORT OF 2 AN UNUSED VIRGIN TYPE FIBER AND A BEAT UP USED FIBER FROM A 3 FIELD, YOU DID THAT FOR FOUR FIELDS IN THIS CASE, RIGHT? 4 A. NO. I DID IT FOR NINE FIELDS. 5 Q. AT THE TIME YOU GAVE YOUR OPINIONS AND REPORTS IN THIS 6 CASE ISSUED THE TABLE THAT IS ARE ATTACHED THERE TO AND GAVE 7 YOUR DEPOSITION IN THIS CASE YOU HAD ONLY ANALYZED FOUR, 8 CORRECT? 9 A. WELL, THERE WERE NINE FIELDS AND 14 OTHERS WHICH WE TOOK 10 PHOTOGRAPHS. 11 Q. YOU DON'T KNOW THE AREAS OF THE FIELDS WHERE THE FIBER 12 SAMPLES YOU TESTED WERE REMOVED FROM, DO YOU? 13 A. NO, I DIDN'T. 14 Q. YOU DON'T KNOW FROM IF THEY WERE FROM THE PENALTY KICK 15 SPOT, THE CORNER KICK SPOT OR OFF TO THE SIDE LINE, DO YOU? 16 A. I DON'T. 17 Q. AND YOU DON'T EVEN ACTUALLY KNOW WHO SELECTED THE FIELDS 18 OR WHO WENT AND OBTAINED THOSE FIBERS FROM THOSE FIELDS, DO 19 YOU? 20 A. THEY DIDN'T SEND FIBERS. THEY SENT CARPET SAMPLES, NOT 21 FIBERS REMOVED FROM THE FIELDS. 22 Q. YOU DON'T KNOW WHO GOT THOSE SAMPLES, DO YOU? 23 A. I DON'T. 24 Q. AND YOU DON'T KNOW WHAT AREA OF THE FIELD THAT THEY GOT 25 THOSE SAMPLES FROM, DO YOU? 111 1 A. NO. 2 Q. YOU DON'T KNOW IF THEY WERE PULLED FROM HIGH TRAFFIC 3 AREAS, HIGH USE AREAS UNDER MECHANICAL STRESS, DO YOU? 4 A. NO, I DON'T KNOW. AS I SAID, I DON'T KNOW WHAT AREAS THEY 5 WERE REMOVED FROM. 6 Q. CERTAINLY THE WORN FIBERS THAT YOU TESTED THEY HAD BEEN 7 OUT IN SOME HIGH SCHOOL FIELD FOR A NUMBER OF YEARS, RIGHT? 8 A. A NUMBER OF YEARS. I DON'T KNOW HOW MANY YEARS. 9 Q. AND THAT'S ANOTHER IMPORTANT POINT. YOU DON'T KNOW HOW 10 MANY YEARS ALONG IN THE WARRANTY PERIOD ANY OF THOSE FOUR OR 11 FIVE FIELDS WERE THAT YOU DID THE COMPARISON TESTING FOR, 12 RIGHT? 13 A. NO. BUT THE FIELD SAMPLES ARE IDENTIFIED AND I'M SURE THE 14 DATES OF INSTALLATION ARE KNOWN. 15 Q. YOU DON'T KNOW, THOUGH? 16 A. I DIDN'T NEED TO KNOW. 17 Q. OKAY. DID YOU KNOW HOW LONG A WARRANTY PERIOD WAS FOR ANY 18 OF THOSE FIELDS? 19 A. NOT SPECIFICALLY. 20 Q. SO FOR INSTANCE BISHOP VEROT, HIGH UV ZONE DOWN IN 21 FLORIDA, THEY COULD HAVE HAD A SIX YEAR WARRANTY FOR ALL YOU 22 KNOW? 23 A. I DON'T KNOW. 24 Q. AND THEY MIGHT HAVE PULLED THOSE FIBERS OUT OF THE FIELD 25 AT YEAR FIVE, RIGHT? 112 1 A. AS I SAID, I DON'T KNOW. 2 Q. YOU TALKED ABOUT A LOT OF TESTING AND A LOT OF IT HAD 3 FANCY NAMES WELL BEYOND MY PAY GRADE, SIR. I DID NOT DO TOO 4 WELL IN EYE SCHOOL CHEMISTRY I CAN ASSURE YOU. BUT YOU DIDN'T 5 PERFORM, PERSONALLY PERFORM ANY OF THE TESTING IN THIS CASE, 6 DID YOU? 7 A. NO, THEY WERE PERFORMED BY A LABORATORY WITH WHOM I HAD 8 WORKED FOR A NUMBER OF YEARS, PEOPLE I HAVE A HIGH LEVEL OF 9 CONFIDENCE IN IN AN ACCREDITED LABORATORY SO THEY WERE WELL 10 DONE. 11 Q. YOU DID NOT PERFORM A SINGLE TENSILE PROPERTY TEST 12 YOURSELF IF THIS CASE, DID YOU? 13 A. NO. I DIDN'T HAVE TO IT WAS IN THE HANDS OF EXPERTS WHO 14 KNOW HOW TO DO IT. 15 Q. AND THOSE FOLKS ARE NOT GOING TO BE IN THIS COURTROOM, ARE 16 THEY? 17 A. NOT THAT I KNOW OF. 18 Q. YOU DIDN'T PERFORM A SINGLE FORCE STRAND ANALYSIS TEST 19 YOURSELF, DID YOU? 20 A. I WAS THERE WHEN THEY WERE DONE. 21 Q. YOU DIDN'T PERFORM TESTS THOUGH DID YOU SIR? 22 A. I WATCHED IT SITTING RIGHT NEXT TO IT WHEN IT WAS BEING 23 DONE. 24 Q. DID YOU PERFORM THE TEST? 25 A. NO. 113 1 Q. DID YOU PERFORM ANY HALS OR ANTIOXIDANT CONTENT TEST IN 2 THIS CASE YOURSELF? 3 A. I DID NOT PERSONALLY DO IT. 4 Q. DID YOU PERFORM ANY COMPLEX VISCOSITY TEST OF FIBER IN 5 THIS CASE YOURSELF? 6 A. DID NOT DO IT MYSELF. 7 Q. LIQUID CHROMATOGRAPH TESTING, DID YOU DO ANY OF THAT 8 YOURSELF? 9 A. NO. 10 Q. MOLECULAR WEIGHT TESTING, DID YOU DO ANY OF THAT? 11 A. NO. IT WAS DONE UNDER MY SUPERVISION. I DIDN'T DO IT 12 PERSONALLY. 13 Q. NOW, IN YOUR DIRECT -- OR EXCUSE ME -- AS I MENTIONED, WE 14 HAVE HEARD IN THIS COURTROOM MAYBE BEFORE YOU GOT HERE THAT 15 THERE WAS AN EXHAUSTIVE SCIENTIFIC ANALYSIS DONE IN THIS CASE. 16 BUT YOUR WORK IN THIS CASE WHICH INCLUDED DOING YOUR 17 INVESTIGATION, ISSUING YOUR REPORTS AND GIVING YOUR OPINIONS IN 18 DEPOSITION YOU GOT THAT ALL DONE IN ABOUT 25 TO 30 HOURS, 19 DIDN'T YOU? 20 A. NO. IT WAS LONGER THAN THAT. THESE SAMPLES TAKE A WHILE 21 TO TEST. IT MAY HAVE BEEN 25 HOURS OF LABORATORY WORK. BUT 22 THERE WAS ADDITIONAL HOURS OF MY ANALYSIS. 23 Q. WELL, DO YOU REMEMBER DURING YOUR DEPOSITION ME ASKING YOU 24 THIS QUESTION AND YOU UNDER OATH GIVING THIS ANSWER? QUESTION: 25 OTHER THAN THE APPROXIMATELY EIGHT HOURS THAT YOU SPENT 114 1 PREPARING FOR THIS DEPOSITION, CAN YOU GIVE ME YOUR BEST 2 ESTIMATE AS TO HOW MANY HOURS YOU SPENT WORKING ON THIS FILE? 3 YOUR ANSWER WAS. . I CAN ESTIMATE. I THINK IT'S IN THE 4 NEIGHBORHOOD OF 25, 30 HOURS. I'D HAVE TO CHECK THE RECORDS 5 FOR ACCURACY. 6 DO YOU REMEMBER ME ASKING YOU THAT QUESTION? 7 A. YES. AND I DID CHECK THE RECORD FOR ACCURACY AND IT'S 8 CONSIDERABLY MORE THAN THAT. MY RECOLLECTION AT THAT TIME IN A 9 SEVEN-HOUR DEPOSITION OF FOUR HUNDRED PAGES WAS A LITTLE FOGGY 10 FOR WHICH I APOLOGIZE. BUT IT'S MORE THAN THAT. 11 Q. WELL, THAT WAS AT PAGE 33 OF YOUR DEPOSITION, SIR WE WERE 12 JUST GETTING STARTED AT THAT POINT, WEREN'T WE? 13 A. I'M SURE WE WERE. 14 Q. AND YOU PERSONALLY AS OF THE TIME OF ISSUING YOUR OPINIONS 15 IN THIS CASE ABOUT HUNDREDS OF FIELDS FAILING AT THAT TIME YOU 16 HAD ONLY VISITED FOUR FIELDS, HADN'T YOU? 17 A. I HAD VISITED FOUR FIELDS IN ONE STATE AND I HAD VISITED 18 SOME OTHERS LATER ON, YES. 19 Q. AT THE TIME YOU GAVE YOUR -- 20 A. YES. 21 Q. -- ISSUED YOUR REPORT AND GAVE YOUR OPINIONS AS AN EXPERT 22 IN A FEDERAL COURT CASE YOU LOOKED AT FOUR FIELDS, RIGHT? 23 A. CORRECT. 24 Q. I WAS WITH YOU, REMEMBER? 25 A. REMEMBER IT WELL. I DO. 115 1 Q. WE LOOKED AT MIRA MESA HIGH SCHOOL, LAGUNA HILLS HIGH 2 SCHOOL, THE EL SEGUNDO SOCCER COMPLEX AND EDISON ELEMENTARY 3 SCHOOL IN CALIFORNIA TOGETHER, CORRECT? 4 A. YES. 5 Q. FOUR FIELDS THAT WERE GIVEN AS EXAMPLES OF THE FAILURES IN 6 THIS CASE. AND YET ONE OF THEM WAS NOT THE FAILURE MODE THAT 7 YOU HAVE TESTIFIED TO HERE ABOUT. ONE OF THEM WAS A TUFT BIND 8 PROBLEM, WASN'T IT? 9 A. WELL, IT WAS A TUFT BIND FAILURE AND THERE WAS EVIDENCE OF 10 THE OTHER KIND OF FAILURE AS WELL. AT EDISON. 11 Q. EDISON ELEMENT STORY SCHOOL? 12 A. YES. 13 Q. HAD A TUFT BIND PROBLEM, DIDN'T IT? 14 A. WELL IT DID HAVE A TUFT BIND PROBLEM. 15 Q. ONE OF THE FOUR FIELDS THAT WE WERE GIVEN AS EXAMPLES HAD 16 A TUFT BIND PROBLEM, RIGHT? 17 A. EDISON DID HAVE A TUFT BIND PROBLEM, YES. 18 Q. NOW THE WARRANTY THAT MY CLIENT ISSUED WAS -- AND I THINK 19 YOU UNDERSTAND THIS -- THAT IT WOULD MAINTAIN 50 PERCENT OF ITS 20 TENSILE STRENGTH, RIGHT? 21 A. YES. 22 Q. AND SO YOU HAVE TOLD US IN YOUR DIRECT THAT YOU TESTED 23 FIELDS. YOU TOOK FOUR FIELDS WHERE YOU COULD GET THE VIRGIN 24 FIBER, FOUR FIELDS WHERE YOU COULD GET THE BEAT-UP FIBER AND 25 YOU SAW IF IT WENT DOWN BY 50 PERCENT OR MORE, RIGHT? 116 1 A. CORRECT. 2 Q. YOU WANT TO SEE WHETHER OR NOT THERE'S A 50 PERCENT DROP 3 OFF IN TENSILE STRENGTH? 4 A. THAT WAS THE OBJECTIVE TO SEE WHAT THE TENSILE STRENGTHS 5 WERE BEFORE AND AFTER. 6 Q. NOW, BEFORE WE TALK ABOUT THOSE TENSILE STRENGTH TESTS 7 DR. DANIELS CAN YOU TELL THE JURY WHAT THE AMERICAN SOCIETY OF 8 TESTING MATERIALS IS? 9 A. YES. IT'S A STANDARDIZED TESTING ORGANIZATION FOR VARIOUS 10 TYPES OF TESTS THAT APPLIES TO A WHOLE SERIES OF MATERIALS 11 INCLUDING FIBERS AND MANY OTHER PLASTICS, RUBBER, STEEL AND THE 12 LIKE. 13 Q. WOULD YOU AGREE WITH ME THAT THE ASTM IS A GLOBALLY 14 RECOGNIZED LEADER IN THE DEVELOPMENT AND DELIVERY OF 15 INTERNATIONAL CONSENSUS STANDARDS USED AROUND THE WORLDS? 16 A. I DO AGREE. 17 Q. AND ONE OF THE GLOBALLY RECOGNIZED STANDARD THAT ASTM 18 PUBLISHES IS THEIR TEST FOR THE TENSILE STRENGTH -- IS THEIR 19 STANDARD FOR TENSILE STRENGTH TESTING OF PLASTIC, CORRECT? 20 A. TENSILE STRENGTH TESTS OF PLASTICS, YES. 21 Q. THERE IS AN ASTM STANDARD NUMBER 638, RIGHT? 22 A. YES. 23 Q. NOW, HAVE YOU EVER GIVEN AN OPINION IN LITIGATION IN A 24 LAWSUIT WHERE YOU TESTIFIED AS AN EXPERT THAT LACKING 25 DEFINITIVE TESTS OR CONTROLLED STUDIES IN THE PUBLISHED 117 1 LITERATURE IT IS IMPORTANT THAT CAREFULLY PLANNED AND WELL 2 EXECUTED TESTS USING PROPER PEER REVIEWED METHODOLOGIES BE RUN. 3 HAVE YOU SO TESTIFIED? 4 A. I CERTAINLY HAVE. 5 Q. AND THE TENSILE STRENGTH TESTING THAT YOU PERFORMED IN 6 THIS CASE IT WAS NOT IN FULL COMPLIANCE WITH ASTM D638, WAS IT? 7 A. NO. IT WAS RUN ACCORDING TO ASTM D 1822 AS A MATTER OF 8 FACT WHICH APPLIES TO FIBERS. 9 Q. YOU DID AN ADAPTATION OF THE D638 METHOD IN THIS CASE? 10 A. THE ADAPTATION OF A D638 TO A FIBER RESULTS IN THE NEW 11 STANDARDS THAT I TALKED ABOUT D 1822 WHICH I BELIEVE IS THE 12 NUMBER THAT APPLIES TO FIBERS. 13 Q. THE ADAPTATION HAS NEVER BEEN PEER REVIEWED, HAS IT? 14 A. 1822 HASN'T BEEN PEER REVIEWED; IS THAT THE QUESTION YOU 15 ARE ASKING. 16 Q. THE ADAPTATION TO D638 HAS NEVER BEEN PEER REVIEWED THE 17 ONE YOU USED HAS IT? 18 A. OH, SORRY. YOU ARE MISCHARACTERIZING WHAT I SAID. I SAID 19 THAT OUR TESTING MET THE REQUIREMENTS OF D 1822. 20 Q. DO YOU REMEMBER GIVING -- TALKING ABOUT THIS IN YOUR 21 DEPOSITION, SIR? 22 A. DO I. 23 Q. DO YOU REMEMBER ME ASKING YOU THIS QUESTION AT PAGE 82, 24 LINE 2. 25 QUESTION: SO YOU WERE UNABLE TO USE THE ASTM D638 AND YOU 118 1 WERE UNABLE TO MODIFY THE SPECIMENS OR PHYSICALLY AUTHOR THEM 2 TO PIGEON HOLE THEM INTO D638, RIGHT? 3 ANSWER: IT WON'T -- IT WOULDN'T HAVE BEEN A GOOD 4 IDEA IT WOULD HAVE PRODUCED OTHER CHANGES WHICH WOULD HAVE 5 AFFECTED THE OUTCOME SO THAT'S JUST NOT SOMETHING YOU WANT TO 6 DO. 7 QUESTION: THAT'S AN ANSWER -- THAT'S AN INSTANCE 8 WHERE YOU WERE UNABLE TO COMPLY WITH THE ENTIRETY OF AN ASTM 9 STANDARD AND YOU HAD TO MAKE SOME CHANGES OR ADAPTATIONS. 10 YOUR ANSWER: CORRECT. 11 DO YOU RECALL GIVING THAT ANSWER? 12 A. YES. ASTM D 638 REALLY CAN'T BE APPLIED TO THIS TYPE OF 13 SPECIMEN AND SO ASTM D638 DOESN'T APPLY AS IT'S PRESCRIBED IN 14 THE ASTM MANUAL. 15 Q. MR. AVANT COULD YOU PULL UP DR. DANIELS' REPORT, FIELDTURF 16 EXHIBIT 1039 WHICH THEY HAVE LISTED AS A TRIAL EXHIBIT AND WE 17 HAVE NOT OBJECTED TO AT TABLE 3 WHICH IS AT PAGE 76. 18 DO YOU RECALL THAT FROM YOUR REPORT, DOCTOR? 19 A. YES. 20 Q. THAT'S A TABLE WHERE YOU DID THAT TESTING WE HAVE BEEN 21 TALKING ABOUT. IT'S THE TENSILE STRENGTH TESTING WHICH IS THE 22 CORE WARRANTY ISSUE IN THIS CASE, RIGHT? 23 A. YES. YES, IT IS. 24 Q. AND THERE'S A BIG CHART WE WILL GO THROUGH BUT THAT'S THE 25 FOUR HIGH SCHOOL FIELDS WHERE YOU HAD VIRGIN FIBER, WORN FIBER 119 1 AND YOU TESTED FOR THAT DECLINE IN TENSILE STRENGTH, RIGHT? 2 A. I DID. 3 Q. BECAUSE THAT'S THE WARRANTY ISSUE IN THIS CASE, RIGHT? 4 A. THAT'S THE SPECIFICATION A FIBER IS SUPPOSED TO MEET. 5 Q. SO MR. AVANT, IF YOU WOULD -- WELL, ACTUALLY LET'S IF YOU 6 WOULD DO THE TYPE LINE FOR BISHOP VEROT USED AND BISHOP VEROT 7 RETAINED THERE. 8 NOW -- YES, EXACTLY. AND LET'S START ON THE RIGHT BECAUSE 9 THAT'S THE RETAIN. LET'S START WITH THE HIGHER NUMBER AND SEE 10 HOW THE WORN OUT ONE DID. 11 SO FOR BISHOP VEROT YOU HAD A RETAIN FIBER ALL THE WAY TO 12 THE FAR RIGHT THAT WAS 12.8 NEWTONS OF TENSILE STRENGTH, RIGHT? 13 A. UH-HUH. 14 Q. IS THAT A YES, SIR? 15 A. YES. I'M SORRY. YES. 16 Q. NOW THE BISHOP VEROT USED FIBER THAT YOU TESTED THERE IT 17 ACTUALLY HAD MORE TENSILE STRENGTH. IT WAS 13.9, WASN'T IT 18 SIR? 19 A. AND THAT'S THE REASON WHY YOU TEST THE NUMBER OF FIBERS 20 AND TAKE THE AVERAGE THE ASTM STANDARD IS TO ALLEVIATE ANY 21 DEVIATIONS THAT YOU MAY SEE IN SAMPLING OH SO EACH INDIVIDUAL 22 MEASUREMENT IS JUST A POINT IN TIME. YOU HAVE TO TAKE THE 23 AVERAGE OF FIVE AND AVERAGE THOSE OUT TO SEE WHETHER OR NOT 24 THERE'S ANY DIFFERENCE. 25 Q. BECAUSE THAT'S NOT A SCIENTIFICALLY VALID FINDING IS IT, 120 1 SIR? 2 A. WITH WELL IT'S A ONE POINT MEASUREMENT AND SO THAT'S WHY 3 YOU DENT USE IT. 4 Q. THE TENSILE STRENGTH ON THAT OLD BEAT UP FIBER COULD NOT 5 HAVE BEEN BETTER THAN THE TENSILE STRENGTH ON THAT VIRGIN 6 FIBER, COULD IT? 7 A. THESE SAMPLES ARE TAKEN AT RANDOM, AND AS I SAID TO YOU OR 8 PERHAPS I DIDN'T SAY, HAVE A CHANCE TO SAY THIS MORNING, WE 9 WELL KNOW THAT THERE'S SOME VARIATION IN THE QUALITY OF THE 10 MANUFACTURING OF THESE SAMPLES AND I WOULD EXPECT THERE TO BE 11 SOME VARIATION IN THE DATA. THAT'S THE REASON WHY YOU'RE 12 COMPELLED TO TAKE A NUMBER OF SAMPLES, FIVE AT A MINIMUM AND 13 AVERAGE THEM. 14 Q. RIGHT. IF YOU EXPANDS IT DOWN A BIT FURTHER, MR. AVANT. 15 KEEP GOING. KEEP GOING PLEASE DOWN TO THE LAKELAND. 16 OKAY. NOW WE AGREE THAT FOR PURPOSES OF THIS TENSILE 17 STRENGTH ANYTHING ABOVE A 7.9 MAINTAINED HALF OF ITS TENSILE 18 STRENGTH, RIGHT, SIR? 19 A. FOR WHICH SAMPLES? 20 Q. JUST IN GENERAL. 7.9 WAS THE MARKER FOR MEETING 50 21 PERCENT, RIGHT? 22 A. WELL YOU HAVE TO LOOK AT THE ORIGINAL. 23 Q. TO THE SPECIFICATION. 24 A. BUT THERE'S NO -- THERE'S NO EVIDENCE THAT THE ORIGINAL 25 MET THE SPECIFICATION SO YOU HAVE TO COMPARE AGAINST THE 121 1 ORIGINAL. 2 Q. OKAY. WHAT WAS THE SPECIFICATION? 3 A. I BELIEVE THE SPECIFICATION WAS IN THE NUMBER RANGE THAT 4 YOU MENTIONED ABOUT 14.9 OR SO, YES. 5 Q. AND HALF OF THAT WAS 7.9 WE TALKED ABOUT IT AT YOUR 6 DEPOSITION, RIGHT? 7 A. YES, YES. 8 Q. ANY FIBER THAT WAS 7.9 NEWTONS, N'S, TENSILE STRENGTH OR 9 ABOVE MET THE SPECIFICATION IN THE CONTRACT, RIGHT? 10 A. BUT IT MAY WELL HAVE LOST 50 PERCENT OF ITS TENSILE 11 STRENGTH. I THINK YOU'RE CONFUSING A SPECIFICATION AND AN 12 ACTUAL VALUE. 13 Q. I'M ASKING ABOUT -- I'M NOT CONDITION FUSE IT GO, I'M 14 ASKING ABOUT THE SPECIFICATION? 15 A. OKAY. AGAINST THE SPECIFICATION? 16 Q. YES. 17 A. FINE. 18 Q. 7.9 MEETS IT, RIGHT? 19 A. FINE. 20 Q. SO AT LAKELAND HIGH SCHOOL, DO YOU KNOW WHERE LAKELAND 21 HIGH SCHOOL IS? 22 A. NOT EXACTLY I DON'T. 23 Q. HIGH UV, LOW UV, CANADA, FLORIDA, IOWA? 24 A. I DON'T KNOW THE EXACT LOCATION. DON'T RECALL. 25 Q. OKAY. 122 1 A. SORRY. 2 Q. SO IF WE GO TO THAT SECOND COLUMN THERE FOR THE USED 3 FIBERS LET'S SEE IF ANY OF THEM MEET THE 7.9 AND THERE IS AN 4 8.11. DO YOU SEE THAT, SIR? 5 A. I DO. I SEE FOUR OTHERS THAT DON'T AS WELL. 6 Q. BUT THERE'S A FIBER THAT MET THE 7.9 SPECIFICATION, RIGHT? 7 A. ONE. 8 Q. OKAY. LET'S GO DOWN TO THE NEXT ONE, BISHOP VEROT HIGH 9 SCHOOL. IF YOU COULD EYE ISOLATE, MR. AVANT. AND WE HAD THE 10 ONE THAT WENT UP. WE ALSO HAD ANOTHER ONE THERE THAT'S 10.71. 11 DO YOU SEE THAT? 12 A. I DO. 13 Q. HIGHER THAN 7.9, ISN'T IT? 14 A. IT IS. 15 Q. AND THAT FIBER MET MY CLIENT'S SPECIFICATION IN THAT 16 FIELD, DIDN'T IT? 17 A. WELL UNFORTUNATELY THE OTHERS DIDN'T. 18 Q. THAT FIBER MET MY CLIENT'S SPECIFICATIONS WAS MY QUESTION, 19 SIR, DIDN'T IT? 20 A. THAT FIBER. 21 Q. LET'S GO DOWN TO HUMBLE HIGH SCHOOL. AND AGAIN, THIS IS 22 THE FOURTH OF THE FOUR FIELDS THAT YOU TESTED FOR THIS KEY 23 WARRANTY TEST, RIGHT? 24 A. IT IS. 25 Q. AND THE FIBERS THAT YOU TESTED FROM HUMBLE FIELD NOT ONLY 123 1 IT DID THREE OF THEM, THREE OF THEM ARE MORE THAN 7.9, YOU GOT 2 A 9.62 YOU GOT AN 8.44 AND AN 8.99. THREE OF THEM MET THE 3 SPECIFICATION, RIGHT? 4 A. IF YOUR SPECIFICATION IS 7.9 IT'S GREATER THAN 7.9. 5 Q. AND THAT FIELD PASSED THE TENSILE STRENGTH TEST, CORRECT? 6 A. YES. THAT WAS THE ONE THAT HAD NOT LOST 50 PERCENT I 7 TESTIFIED TO THAT THIS MORNING. 8 Q. AND THERE'S A FIELD THAT'S BEING CLAIMED IN THIS CASE. 9 DID YOU KNOW THAT? 10 A. YES. THAT'S THE REASON WHY WE TEST IT HAD. 11 Q. SO OF THE TESTING YOU DID, 25 PERCENT OF THEM PASSED? 12 A. 25 PERCENT? 13 Q. ONE FIELD OUT OF FOUR PASSED THE TENSILE STRENGTH TEST 14 WHICH IS THE WARRANTY TEST. ONE OUT OF FOUR IS 25 PERCENT, 15 RIGHT? 16 A. OF THE ONES I TESTED. 17 Q. RIGHT. YOU DIDN'T TEST ANY OTHERS IN COMPARISON TESTING? 18 A. I AGREE. I DIDN'T. 19 Q. ALL RIGHT, SIR. YOU TALKED ABOUT SOMETHING CALLED THE 20 EARLY SAMPLE, ANOTHER IMPORTANT POINT IN THIS CASE. YOU 21 UNDERSTAND THAT THIS IS A CASE WHERE IT'S BEING ALLEGED THAT MY 22 CLIENT COMMITTED A FRAUD. YOU UNDERSTAND THAT, SIR? 23 A. I WASN'T ASKED ABOUT WHETHER OR NOT FRAUD WAS COMMITTED. 24 I WAS JUST SIMPLY ASKED TO ANALYZE A SAMPLE CHEMICALLY AND 25 PHYSICALLY. 124 1 Q. WELL, IT'S BEEN STATED IN THIS COURTROOM THAT THERE WAS A 2 SWITCH RADIO, THAT THE EARLY SAMPLE WAS FOR CERTAIN MADE WITH 3 100 PERCENT C8 RESIN AND THEN LATER ON SOMEBODY STARTED 4 SHIPPING C4 REST SING PRODUCT. DO YOU UNDERSTAND THAT? 5 A. WELL, I DON'T KNOW WHAT RELEVANCE THAT HAS TO WHAT I 6 TESTED BUT I MEAN -- 7 Q. WERE YOU HERE YESTERDAY WHEN THE VIDEOTAPE WAS PLAYED OF A 8 GERMAN GENTLEMAN, HAD A TAN SUIT ON AND IN GERMAN THROUGH 9 TRANSLATION HE SAID HE WAS 100 PERCENT CERTAIN BECAUSE HE MADE 10 THE EARLY SAMPLE THAT IT WAS C8 AND C8 ONLY. WERE YOU HERE FOR 11 THAT? 12 A. NO, I WASN'T. 13 Q. BUT YOU ROLLED UP YOUR SLEEVES AND YOU DID THE SCIENTIFIC 14 ANALYSIS ON THAT SAMPLE TO FIND OUT WHAT IT WAS MADE OF, DIDN'T 15 YOU? 16 A. I DID. 17 Q. YOU ACTUALLY YOU USED A COMPANY OR A GROUP AT VIRGINIA 18 TECH CALLED POLYMER SOLUTIONS, CORRECT? 19 A. THAT'S CORRECT. 20 Q. THEY RAN THE TEST FOR YOU, CORRECT? 21 A. THEY DID. 22 Q. AND THEY PROVIDED YOU WITH THEIR FINDINGS, DIDN'T THEY? 23 A. THEY DID. 24 Q. THEY ARE A COMPETENT GROUP? 25 A. THEY ARE. 125 1 Q. SCIENTISTS THAT YOU TRUST? 2 A. YES. 3 Q. IF WE WOULD LOOK AT FIELDTURF TRIAL EXHIBIT 1039 WHICH IS 4 YOUR SUPPLEMENTAL REPORT TABLE 4 ON PAGES 93 THROUGH 95, 5 MR. AVANT. IN YOU WOULD PUT UP 93 FIRST SO WE CAN GET OUR 6 BEARING, SUPPLEMENTAL REPORT PAGE 93, PAGE BEFORE. THAT IS THE 7 POLYMER SOLUTIONS IS AT THE TOP THAT'S THE PEOPLE, THE FOLKS AT 8 VIRGINIA TECH, RIGHT? 9 A. THAT IS CORRECT. 10 Q. IT WAS PREPARED FOR YOU AND IT WAS PREPARED IN JUNE OF 11 2012? 12 A. IT WAS. 13 Q. AND THAT IS IN -- I WON'T EVEN READ THE FANCY NUMBERS WE 14 ARE GOING TO TALK ABOUT WHAT IT WAS BUT THAT'S THE TEST, RIGHT? 15 A. YES, IT IS. 16 Q. OKAY. LET'S GO TO PAGE 2. 17 AND THAT IS THE DATA THEY GAVE YOU, RIGHT? 18 A. YES, IT IS. 19 Q. AND THEIR RECORDED FINDINGS, RIGHT? 20 A. IT IS. 21 Q. AND MY ABILITY TO PARSE THROUGH THIS IS VERY LIMITED SIR 22 BUT IF WE GO TO BOTTOM OF THAT WHERE IT SAYS THE SIGNALS AT 23 39.8 AND YOU START THERE IF MR. AVANT COULD HIGHLIGHT THAT TO 24 THE END OF THAT PARAGRAPH AND IF YOU COULD ENLARGE THAT A BIT, 25 MR. AVANT, I DON'T KNOW IF THAT'S POSSIBLE. 126 1 OKAY. THANK YOU. 2 SO I GUESS WE NEED TO DO A LITTLE BACKGROUND WORK HERE TO 3 MAKE THIS UNDERSTANDABLE TO ME. NUMBER ONE, WE HAVE BEEN 4 TALKING ABOUT C8 AND C4 FAIRLY EASY FOR ME TO FIGURE OUT THOSE 5 MUCH THE SCIENTISTS, YOU GUYS, DON'T ALWAYS CALL IT C8 AND C4, 6 DO YOU? 7 A. NO. NO. 8 Q. C4 YOU SOMETIMES REFER TO AS HAVING A BUTENE COMONOMER, 9 CORRECT? 10 A. CORRECT. 11 Q. AND C8 YOU SOMETIMES REFER TO AS HAVING AN OCTENE 12 COMONOMER, CORRECT? 13 A. CORRECT. 14 Q. SO WHAT THEY SAID HERE FROM VIRGINIA TECH WAS THE SIGNALS 15 AT THESE POINTS REPRESENT CARBONS AND A C 2 BRANCH AND THE 16 ADJACENT BACKBONE CARBON AND INDICATE -- AGAIN, THIS IS THE 17 EARLY SAMPLE, RIGHT, SIR? 18 A. IT IS. 19 Q. IT INDICATES THAT THE MATERIAL IS LLDPE MADE WITH 1-BUTENE 20 COMONOMER? 21 A. THAT'S WHAT IT SAYS. 22 Q. FOLKS AT VIRGINIA TECH THAT YOU TRUST SAID THIS WAS A 23 RESIN MADE WITH C4, RIGHT? 24 A. WELL, THAT'S NOT ALL THEY SAID. 25 Q. LET'S START WITH WHAT THEY SAID IN THAT SENTENCE? 127 1 A. THEY DID SAY THAT IN THAT SENTENCE. 2 Q. OKAY. THANK YOU. 3 THEN THERE'S A SECOND SENTENCE. VERY LOW SIGNALS AT SOME 4 OTHER POINTS SUGGEST THAT THERE MAY -- THESE ARE THEIR WORDS -- 5 SUGGEST THAT THEY MAY ALSO BE A SMALL AMOUNT OF LONGER BRANCHES 6 PRESENT, LIKELY FROM 1-OCTENE COMONOMER, CORRECT? 7 A. THAT'S WHAT IT SAYS. 8 Q. AND THAT'S A C8, RIGHT? 9 A. THAT IS. 10 Q. SO THE TESTING FROM VIRGINIA TECH THAT YOU HAVE RELIED ON 11 IN THIS CASE SHOWS DEFINITIVELY THAT THERE WAS C4 IN THAT EARLY 12 SAMPLE AND THERE MAY BE -- MAY BE A SUGGESTION OF A SMALL 13 AMOUNT OF C8, AGREED? 14 A. THAT'S WHAT THEY SAID. NOW I TOOK THAT INFORMATION AND 15 WENT BACK AND COMPARED THOSE LOW SIGNALS AT THOSE THREE 16 PARTICULAR -- FOUR PARTICULAR PEAKS THAT THEY SHOWED INDICATIVE 17 OF THE OCTENE MATERIAL. I LOOKED AT THE SPECTRUM OF AN OCTENE 18 MATERIAL ALL BY ITSELF AND IT'S AN EXACT MATCH. 19 SECOND THING YOU NEED TO UNDERSTAND ABOUT THERE METHOD IT 20 IS NOT QUANTITATIVE. CARBON 13 N M R SPECTROSCOPY CANNOT TELL 21 YOU HOW MUCH OF ONE VERSUS THE OTHER. IT IS NOT A QUANTITATIVE 22 TECHNIQUE. THEY INDICATED THAT THEY SAW IT. I TOOK THE DATA, 23 WENT BACK AND CHECK IT HAD. MY CONCLUSION WAS IT WAS PRESENT. 24 I NEVER SAID I KNEW HOW MUCH WAS IN THERE. THEY NEVER SAID 25 THEY KNEW HOW MUCH WAS IN THERE. THEY JUST SAID IT WAS 128 1 PRESENT. 2 Q. ACTUALLY THEY DID. THEY SAID THERE WAS A SUGGESTION OF A 3 SMALL AMOUNT OF C8 IN THERE DIDN'T THEY? 4 A. WELL -- 5 Q. THAT'S WHAT THEY SAID? 6 A. THAT'S WHAT THEY SAID. 7 Q. IT WAS DEFINITELY C4. THEY THOUGHT THERE WAS A SUGGESTION 8 OF A SMALL AMOUNT OF C8. 98 PERCENT C4, ONE PERCENT C8, 97 9 PERCENT C4, 3 PERCENT C8, THAT YOU DON'T KNOW -- 10 THE COURT: ALL RIGHT. MR. PENDER, YOU KNOW THE 11 RULE. IF YOU ARE GOING TO RAISE YOUR VOICE, YOU HAVE TO STAND 12 BACK BEHIND THE PODIUM. 13 MR. PENDER: YES, SIR. I FORGOT. 14 BY MR. PENDER: 15 Q. THERE WAS A SUGGESTION OF C8 BUT THERE WAS DEFINITELY C4, 16 RIGHT? 17 A. THEIR CONCLUSION AS YOU'VE QUOTED THEY KNEW IT WAS A C4. 18 IT WAS DEFINITIVE IT WAS C4. THEY BELIEVED THEY SAW C8. THEY 19 COULDN'T TELL HOW MUCH WAS THERE. I AM CONVINCED THEY COULDN'T 20 TELL HOW MUCH WAS THERE. I COULDN'T TELL HOW MUCH WAS THERE 21 BECAUSE IT'S NOT A METHOD THAT TELLS YOU HOW MUCH IS THERE. 22 Q. THERE WAS C4 THERE, THOUGH, WASN'T THERE? 23 A. ABSOLUTELY, THERE WAS C4 THERE. 24 Q. ANY WITNESS THAT WAS BROUGHT INTO THIS COURTROOM IN A 25 VIDEOTAPE, ANY WITNESS WHO SAID THAT THAT EARLY SAMPLE WAS FOR 129 1 SURE, HE WAS CERTAIN 100 PERCENT C8 THAT WITNESS WAS WRONG 2 BASED ON THIS TESTING, RIGHT? 3 A. THIS PARTICULAR EARLY SAMPLE THE ONE THAT WAS TESTED 4 CONTAINED C4, A SUGGESTION A STRONG SUGGESTION OF VERY LIKELY 5 PROBABILITY OF C8. THAT'S ALL I KNOW. THAT'S WHAT I TESTIFIED 6 TO. 7 Q. AND ANY WITNESS WHO CAME INTO THIS COURTROOM IN A 8 VIDEOTAPE AND SAID IT WAS 100 PERCENT C8 WAS WRONG BASED ON THE 9 RESULTS OF YOUR TESTING, RIGHT? 10 A. IF HE WAS TALKING ABOUT THERE PARTICULAR SAMPLE? 11 Q. YES. 12 A. WELL, IT DOESN'T SUGGEST THAT IT WAS 100 PERCENT C8. 13 Q. ONE OF YOUR OPINIONS IN THIS CASE IS THAT MECHANICAL WEAR 14 IS NOT A SIGNIFICANT CONTRIBUTING FACTOR TO THE FIBER BREAK 15 DOWN, CORRECT? 16 A. YES. AS A MATTER OF FACT, I DON'T BELIEVE IT CONTRIBUTES 17 AT ALL. BUT I'LL ACCEPT THE SIGNIFICANT. 18 Q. WELL, I'LL TAKE YOUR VERSION AS WELL. MECHANICAL -- LET'S 19 START WITH THIS. MECHANICAL STRESS IS THE FOLKS, THE KIDS 20 RUNNING ON THE FIELD, KICKING THE BALL, TWISTING AND TURNING, 21 TACKLING ON THE FIELD, ALL OF THOSE THINGS, THE MARCHING BAND 22 ON THE FIELD, THE GRADUATION CHAIRS ON THE FIELD? THAT'S ALL 23 MECHANICAL STRESS, RIGHT? 24 A. AS YOU DEFINED IT, YES. YES. 25 Q. AND IT'S YOUR OPINION THAT THAT MECHANICAL STRESS HAS NO 130 1 IMPACT ON FIBER BREAK DOWN? 2 A. AND WE TESTED FOR THAT, AND I DO MAINTAIN THE OPINION THAT 3 IT DOES NOT CAUSE THE FAILURE. 4 Q. ONE OF THE SAMPLES YOU TESTED AGAIN WAS THAT EARLY SAMPLE, 5 RIGHT? 6 A. YES. 7 Q. MR. AVANT, IF YOU WOULD BRING UP EXHIBIT 1039, A 8 SUPPLEMENTAL -- I'M IN THE SURE THAT IF THAT'S THE SUPPLEMENTAL 9 OR THE ORIGINAL, 1039 AT PAGE 76. IT'S THE ORIGINAL REPORT. 10 AND IF YOU COULD FOCUS IN ON THE EARLY SAMPLE WEAR TESTING 11 PARAGRAPH, PLEASE. AND IF YOU COULD HIGHLIGHT TWO FIGURES, THE 12 12.41 IN THE BOTTOM RIGHT AND GOING LEFT THE 8.82. 13 THANK YOU, MR. AVANT. 14 THIS IS THE TEST RESULT OF YOUR EARLY SAMPLE WEAR TESTING 15 OR YOUR WEAR TESTING RESULTS ON THE EARLY SAMPLE, CORRECT? 16 A. IT'S THE TENSILE TESTING ON THE SAMPLES THAT YOU ARE 17 DISCUSSING. 18 Q. THE TENSILE TESTING? 19 A. YES. 20 Q. YOU TOOK -- WERE YOU ABLE TO FIND EITHER SOME SORT OF 21 VIRGIN RETAIN PART OF THE EARLY SAMPLE WHERE THE FIBERS WERE 22 GOOD OR DID YOU ACTUALLY GET SOME RETAIN FIBERS? 23 A. NO, THEY WERE AT THE EXTREMES ON THE OUTSIDE. THERE WERE 24 A FEW AREAS THAT APPEARED NOT TO HAVE BEEN SUBJECTED TO THE 25 WEAR. 131 1 Q. SO THAT WAS SORT OF YOUR GOOD? 2 A. THAT WAS SORT OF MY GOOD. 3 Q. AND THEN THE PART THAT THEY HAD ROLLED THAT OVER 150,000 4 TIMES YOU GOT A BEAT UP ONE OF THOSE, RIGHT OR SEVERAL OF THEM? 5 A. VERY BEAT UP. 6 Q. AND IT'S YOUR TESTIMONY IN THIS CASE UNDER OATH THAT 7 MECHANICAL WEAR HAS NO DEGRADING IMPACT ON TENSILE STRENGTH, 8 RIGHT? 9 A. WELL, YOU'VE GOT TO DO AN APPLES TO APPLES COMPARISON 10 HERE. NOW, THE SAMPLE THAT HAD THE 12.41 NEWTONS BREAKING 11 FORCE HAD NOT BEEN SUBJECTED TO THE INCREDIBLE AMOUNT OF WEAR, 12 COMPRESSION, FLATTENING, CHIPPING THAT THOSE SAMPLES THAT HAD 13 THE 8.82 TENSILE. THOSE SAMPLES WERE WORN TO A DEGREE WELL 14 BEYOND WHAT I HAD EVER SEEN IN A REAL FIELD. 15 SECONDLY, REMEMBER THAT DOESN'T TAKE INTO ACCOUNT THE FACT 16 THAT THAT WORN SAMPLE IS NOW THINNER AND IT WOULD BE AN UNFAIR 17 COMPARISON FOR EXAMPLE TO LOOK AT THE BREAKING FORCE OF A THICK 18 PIECE OF ALUMINUM VERSUS THE BREAKING FORCE OF A PIECE OF 19 ALUMINUM FOIL BUT THAT'S ESSENTIALLY WHAT YOU ARE DOING HERE. 20 YOU HAVE A PRODUCT ON THE RIGHT SIDE WHICH HAS ITS ORIGINAL 21 DIMENSIONS AND A PRODUCT THAT WAS WORN, BADLY WORN, 150 CYCLES 22 WORTH OF WORN THAT NOW WAS ABOUT 8.829. 23 Q. THERE WAS A 30 PERCENT DROP OFF IN TENSILE STRENGTH 24 BETWEEN GOOD PART OF THAT AND THE BAD PART A 30 PERCENT DROP 25 OFF, 12.41 DOWN TO 8.82, RIGHT? 132 1 A. YES BUT IT'S NOT BRITTLE. 2 Q. AND THAT'S A CHART YOU PUT IN YOUR EXPERT REPORT IN THIS 3 CASE? 4 A. THAT'S CORRECT. 5 Q. THOSE ARE FINDINGS YOU AS AN EXPERT MADE IN THIS CASE, 6 RIGHT? 7 A. THEY ARE FINDINGS THAT I MADE IN THIS CASE. 8 Q. AND AWE RECORDED IT AND SHOWED US THAT ON MECHANICAL WEAR 9 TENSILE STRENGTH WENT DOWN BY 30 PERCENT? 10 A. AS I SAID -- WELL, SEE, YOU ARE USING THE -- YOU ARE USING 11 THE TERM TENSILE STRENGTH. THIS IS BREAKING FORCE. TENSILE 12 STRENGTH IS AS A MEASUREMENT HAS TO BE CORRECTED FOR CHANGES IN 13 THICKNESS. THESE NUMBERS HAVE NEVER BEEN CHANGED, CORRECTED 14 FOR CHANGED IN THICKNESS. THIS IS BREAKS FORCE. 15 Q. LET'S READ THE TOP TITLE OF THAT, SIR. TABLE 3, WHAT DOES 16 THAT SAY. VALUES OF TENSILE PROPERTIES, CORRECT? 17 A. RIGHT. AND IF YOU WOULD JUST DROP DOWN JUST A HAIR THERE 18 TO THE TITLE WHERE IT SAYS FORCE, THE HEADINGS OF THE COLUMNS. 19 IT SAYS FORCE IT DOESN'T SAY TENSILE STRENGTH. IT SAYS FORCE. 20 Q. THERE WAS A 30 PERCENT DROP IN TENSILE STRENGTH IN THE 21 FIBER THAT HAD GONE THROUGH THE 150,000 CYCLES OF STRESS 22 TESTING ACCORDING TO THESE RESULTS, WASN'T THERE? 23 A. THERE WAS A 30 PERCENT DROP IN FORCE NECESSARY TO BREAK 24 IT, NOT TENSILE STRENGTH. THIS IS DEFINED IN THE LITERATURE. 25 Q. MR. AVANT WOULD YOU PULL UP DR. DANIELS' DEPOSITION AT 133 1 PAGE 273, LINES 12 THROUGH PAGE 274, LINE 3. 2 (VIDEOTAPE PLAYED AS FOLLOWS.) 3 Q. ALL RIGHT. SO GOING BACK TO TABLE 3 WHICH INCLUDES YOUR 4 RESULTS OF TENSILE PROPERTY TESTING OF THE EARLY SAMPLE -- 5 A. UH-HUH. 6 Q. -- THE EARLY SAMPLE RETAINED FIBERS HAD AN AVERAGE TENSILE 7 BREAKING STRENGTH OF 12.41 NEWTONS, CORRECT? 8 A. CORRECT. 9 Q. AND THE EARLY SAMPLE WEAR TESTED FIBERS HAD A BREAKING 10 FORCE OF 8.82, CORRECT -- ON AVERAGE, CORRECT? 11 A. CORRECT. 12 (VIDEOTAPE CONCLUDED.) 13 MR. PENDER: KEEP GOING TO LINE 3 ON THE NEXT PAGE. 14 DON'T HAVE THAT ONE? 15 BY MR. PENDER: 16 Q. AND THEN WE CONTINUE THE NEXT QUESTION I ASKED YOU: YOU 17 WOULD AGREE THAT THAT WAS ALMOST A 30 PERCENT REDUCTION IN THE 18 BREAKING FORCE AND YOUR ANSWER WAS IT IS? 19 A. WHICH IS EXACTLY WHAT I JUST SAID. IT IS. 20 Q. THANK YOU. 21 YOU DID A SECOND TEST ON THE IMPACT OF MECHANICAL WEAR, 22 AND THIS ONE WAS TO FIND OUT WHETHER OR NOT THE HALS CONTENTS 23 OR THE SUNSCREEN WHAT WE HAVE BEEN CALLING IT IF THAT DEGRADED 24 AT ALL, RIGHT? 25 A. YES. 134 1 Q. AND YOU HAVE TALKED ABOUT SOME TESTING THAT YOU WERE ASKED 2 ON THAT AND THESE WERE THE SAMPLES WHERE YOU HAD TURF THAT YOU 3 TOOK A HALS CONTENT OR A SUNSCREEN CONTENT SAMPLE OF AND YOU 4 RAN IT THROUGH 5,000 CYCLES OF WEAR AND THEN YOU TESTED IT FOR 5 THE HALS AGAIN, CORRECT? 6 A. CORRECT. 7 Q. AND THIS IS IN TABLE 2 OF YOUR SUPPLEMENTAL REPORT WHICH 8 WAS SUBMITTED BY FIELDTURF AS EXHIBIT 1048 AT PAGE 14. IF YOU 9 COULD BRING THAT UP, MR. AVANT. 10 TABLE 2 IS UVINUL 5050 H LEVELS MEASURED IN FIBERS AFTER 11 ACCELERATED LISPORT WEAR TESTING COMPARED TO LEVELS MEASURED IN 12 UNWORN FIBERS? SO UVINUL 5050 IS THE SUNSCREEN? 13 A. IT IS. 14 Q. AND YOU HAD LISPORT TESTING. THAT'S A SPECIFIC TYPE OF 15 TESTING, RIGHT? 16 A. IT IS. 17 Q. SCIENTIFICALLY VALID TYPE OF WEAR TESTING? 18 A. IT IS, UH-HUH. 19 Q. SO YOU HAD THE CONTROL GROUP, SORT OF THE CLEAN VERSION 20 FIBERS AND THEN YOU HAD THE WORN FIBERS, RIGHT? 21 A. I DID. 22 Q. AND IT'S YOUR TESTIMONY TO THIS JURY THAT WHEN A SAMPLE -- 23 WHEN A FIELD GETS WORN BY MECHANICAL WEAR IT'S NOT GOING TO 24 BREAK DOWN THAT HALS, THAT SUNSCREEN AT ALL, RIGHT? 25 A. YES. AND I BELIEVE THIS DATA SHOWS THAT. THIS IS -- 135 1 Q. LET ME ASK YOU ABOUT THAT. 2 A. OKAY. FINE. 3 MR. KAPLAN: YOUR HONOR, MAY HE BE ALLOWED TO FINISH 4 HIS ANSWER? 5 THE COURT: I THINK IT'S A DIFFERENT QUESTION, 6 MR. KAPLAN. 7 GO AHEAD, MR. PENDER. 8 MR. PENDER: THANK YOU, YOUR HONOR. 9 BY MR. PENDER: 10 Q. SO AT HUMBLE HIGH SCHOOL THAT'S ONE OF THE FOUR FIELDS YOU 11 TESTED? 12 A. YES. 13 Q. IF WE HIGHLIGHT THAT RIGHT HANDS COLUMN PERCENTAGE CHANGE 14 ALL THE WAY FROM THE TOP TO THE BOTTOM, MR. AVANT THE SUNSCREEN 15 AT HUMBLE HIGH SCHOOL YOU HAD A CONTROL SAMPLE THAT'S THE CLEAN 16 ONE. YOU HAD THE BEAT UP SAMPLE, RIGHT? 17 A. THAT'S RIGHT. 18 Q. AND WHAT WAS RECORDED IN YOUR EXPERT REPORT HERE WAS THAT 19 THE SUNSCREEN WENT DOWN IT DIDN'T STAY THE SAME, IT WENT DOWN 20 BY 12 PERCENT AT HUMBLE HIGH SCHOOL, THAT'S WHAT YOU RECORDED 21 IN THIS CHART, ISN'T IT, SIR? 22 A. AND AS I TOLD YOU AN EXPLANATION OF THOSE NUMBERS THAT IS 23 WITHIN THE REPRODUCIBILITY AND THE ERROR OF THE MEASUREMENT. 24 WE ARE LOOKING AT A MATERIAL THAT'S CONTAINED IN THESE FIBERS 25 THAT IS LESS THAN ONE PERCENT OF THE ENTIRE SAMPLE. 136 1 Q. SIR, MY QUESTION WAS DID YOU RECORD A DECREASE OF 12 2 PERCENT? 3 A. I RECORDED THAT NUMBER BECAUSE THAT'S WHAT THOSE NUMBERS 4 SHOWED. 5 Q. THANK YOU? 6 A. BUT AS I SAID TO YOU EARLIER -- IF I MAY FINISH THE 7 ANSWER, UPON LOOKING AT THE REPRODUCIBILITY OF THE ANALYSES 8 THESE NUMBERS ARE WITHIN EXPERIMENTAL ERROR. IT'S A DIFFICULT 9 AND DELICATE MEASUREMENT TO MAKE. 10 Q. ARE YOU SAYING YOU COMMITTED AN ERROR IN YOUR REPORT? 11 A. NO, SIR. 12 Q. OKAY. LET'S GO TO THE NEXT ONE IF THAT'S NOT AN ERROR. 13 BISHOP VEROT HIGH SCHOOL THE SUN KOREAN IN THAT UPON MECHANICAL 14 WEAR IT DIDN'T STAY THE SAME YOU RECORDED THAT IT WENT DOWN BY 15 17 PERCENT, RIGHT? 16 A. THAT'S WHAT THE NUMBER SAYS. 17 Q. AND AT GILMER HIGH SCHOOL THE SUNSCREEN ON THE WORN SAMPLE 18 WENT DOWN BY 16 PERCENT. THAT'S WHAT YOU RECORDED IN THIS 19 CHART, RIGHT? 20 A. THAT'S WHAT'S ON THE CHART. 21 AND THE OTHER ONE WENT UP BY 9 PERCENT IN CASE YOU DON'T 22 WANT TO POINT THAT ONE OUT AS WELL BECAUSE THAT'S PART OF THE 23 EXPERIMENTAL ERROR. 24 Q. AND IT'S IMPOSSIBLE FOR IT TO GO UP, RIGHT? 25 A. NO. THAT'S WHY IT'S WITHIN THE EX PERSONAL TAL ERROR. 137 1 THAT'S WHAT I WAS TRYING TO EXPLAIN, SIR. 2 Q. THE SUNSCREEN CAN'T INCREASE AS THE FIBER GETS WORN, CAN 3 IT? 4 A. IT SHOULDN'T, NO. THERE'S NO WAY. 5 Q. YOU ALSO TESTED FOR THE HALS SUNSCREEN CONTENT OF A SORT 6 OF A NUMBER OF DIFFERENT FIBERS THAT I WANT TO TALK TO YOU 7 ABOUT, AND I BELIEVE THIS IS IN TABLE 5 ON PAGE 78 OF YOUR 8 TRIAL EXHIBIT -- OF TRIAL EXHIBIT 1039. CAN WE PULL THAT UP, 9 MR. AVANT. PAGE 78, PLEASE. 10 THANK YOU. 11 ALL RIGHT. SO YOU ALSO TOOK SOME SUNSCREEN CONTENT 12 READINGS FROM A VARIETY OF FIBERS, CORRECT? 13 A. YES, I DID. 14 Q. AND THIS CHART SHOWS THAT, RIGHT? 15 A. IT DOES. 16 Q. AND YOU'RE AWARE THAT THE SUNSCREEN WHEN IT WAS INTRODUCED 17 TO MY CLIENT'S PRODUCT IT CAME IN THROUGH WHAT'S CALLED A 18 MASTERBATCH, RIGHT? 19 A. THAT'S WHAT I WAS TOLD, YES. 20 Q. AND THE MASTERBATCH IN THIS CASE MADE BY BASF. DID YOU 21 KNOW THAT? 22 A. YES. 23 Q. AND IT WAS DOSED INTO MY CLIENT'S PRODUCT AT SOMEWHERE 24 AROUND 8,000 TO 10,000 PARTS PER MILLION. YOU SEE THAT? 25 A. THAT'S WHAT I HAVE BEEN TOLD. 138 1 Q. THAT IS THE PROPER LEVEL OF SUNSCREEN SHOULD BE 8,000 TO 2 10,000 PARTS PER MILLION, RIGHT? 3 A. THAT'S WHAT I'VE BEEN TOLD, YES. 4 Q. OKAY. AND IF WE COULD HIGHLIGHT ONE OF THE ONES IN THE 5 MIDDLE THERE, SAM'S STADIUM. YOU GOT A FIBER FROM A PLACE 6 CALLED SAM'S STADIUM, RIGHT, SIR? 7 A. WE DID. 8 Q. AND IT WAS A RETAIN FIBER, RIGHT? 9 A. YES. 10 Q. AND SO IT'S ACTUALLY THE THIRD COLUMN BUT IT'S THE ONE 11 WITH THE HEADING UVINUL 5050 H. THAT'S THE SUNSCREEN CONTENT 12 RESULT, RIGHT? 13 A. IT IS. 14 Q. AND SAT SAM'S STADIUM SUPPOSED TO BE BETWEEN 8 AND 10,000 15 PARTS PER MILLION IT'S ACTUALLY 14,425 PARTS PER MILLION, 16 RIGHT? 17 A. THAT'S WHAT THE NUMBERS SAY. 18 Q. SO FOR WHATEVER REASON SAM'S STADIUM FIBER THAT WAS WELL 19 -- HAD A VERY GOOD CONTENT OF SUNSCREEN, RIGHT? 20 A. WELL, AT LEAST IN THAT ONE PARTICULAR SAMPLE. IT WAS A 21 SMALL SAMPLE. 22 Q. THAT WAS ONE OF THE HIGH VALUES THAT STUCK OUT FOR YOU, 23 RIGHT? 24 A. IT DID. 25 Q. SO WE TALK ABOUT THE FACT THAT MY CLIENT BUYS THIS 139 1 MASTERBATCH FROM BASF THAT'S PRE DOSED WITH THIS SUNSCREEN. 2 DID YOU KNOW THAT MY CLIENT IN DUBAI THEY DON'T DETERMINE WHAT 3 THE CONCENTRATION OF THE SUNSCREEN IS, IT'S ALREADY IN THE 4 MASTERBATCH? DID YOU UNDERSTAND THAT? 5 A. I UNDERSTAND THAT THEY WERE SUPPLIED THE MASTERBATCH, YES. 6 Q. NOW, WE HAVE HEARD IN THIS COURTROOM THAT NOT ALL OF THE 7 FIELDS HAVE DURASPINE FIELDS HAVE FAILED IN THIS CASE. ARE YOU 8 AWARE OF THAT? 9 A. YES. 10 Q. ABOUT 90 PERCENT OF THEM HAD NOT FAILED. DID YOU KNOW 11 THAT? 12 A. I KNOW SOME HAVEN'T FAILED. I DON'T KNOW WHAT THE EXACT 13 PERCENTAGE IS. 14 Q. IF 90 PERCENT OF THE INSTALLED FIELDS HAVE NOT FAILED AND 15 THEY ARE OUT IN THE SUNSHINE ALL OVER THE PLACE, THAT DOESN'T 16 REALLY MATCH UP WITH UV DEGRADATION, DOES IT? 17 A. WELL, THAT MAKES THE ASSUMPTION THAT ALL THOSE FIBERS WERE 18 MADE IN THE SAME WAY, WITH THE SAME MATERIAL, WITH THE SAME 19 GRADE OF RESIN, IN THE SAME MANUFACTURING CONTROL. THAT 20 VARIATION CAN CERTAINLY EXIST AND CERTAINLY CAN CREATE AS WE 21 SHOWED HERE FIBERS CONTAINING DIFFERENT AMOUNTS OF THE 22 SUNSCREEN AS YOU DESCRIBED IT. SO SOME FIELDS MAY PERFORM 23 BETTER THAN OTHERS. 24 Q. AND IN THIS CASE, ABOUT 90 PERCENT OF THEM APPEARED TO 25 HAVE? 140 1 A. I DON'T KNOW WHAT THE EXACT NUMBER IS. BUT SOME WILL 2 PERFORM BETTER THAN OTHERS. 3 Q. YOU TALKED ABOUT A BASF STUDY THAT YOU REVIEWED. DO YOU 4 REMEMBER THAT? 5 A. I DO. 6 Q. AND YOU SAID THAT THE WHITES WERE ACTUALLY PERFORMING 7 BETTER THAN THE GREEN. YOU FOUND THAT SORT OF TO BE AN 8 ANOMALOUS RESULT, RIGHT? 9 A. YES. 10 Q. BUT ONCE THOSE FIBER SAMPLES IN THAT TEST WERE SUBJECTED 11 AND SOAKED IN -- AND SUBJECTED TO SBR RUBBERS THOSE RESULTS 12 FROM THE WHITES WENT DOWN, DIDN'T THEY? 13 A. I'M NOT AWARE OF THE SOAKING IN SBR RUBBER EXPERIMENT. 14 Q. YOU DIDN'T SEE ANYWHERE RUBBER WHERE THE FIBERS WERE 15 EXPOSED TO RUBBER TO SORT OF REPLICATE WHAT IT WOULD BE LIKE IN 16 THE INFILL? YOU DIDN'T SEE THAT? 17 A. I DIDN'T SEE IT WITH SPECIFIC REFERENCE TO THE FIBERS YOU 18 ARE TALKING ABOUT. 19 Q. OKAY. DID YOU KNOW THAT THERE ARE FIELDS THAT ARE BEING 20 CLAIMED IN THIS CASE -- STRIKE THAT. WITHDRAW THAT QUESTION, 21 YOUR HONOR. IF I CAN START AGAIN ON THIS POINT. 22 THE CLAIM IS BEING MADE THAT THE C4 RESIN USED BY MY 23 CLIENT AND THE AMOUNT OF SUNSCREEN THEY PUT IN WAS DEFICIENT 24 AND LED TO THIS DEGRADATION, RIGHT? 25 A. YES. 141 1 Q. BECAUSE THE C4 WASN'T AS GOODS AS C8, RIGHT? 2 A. WELL, AGAIN, I DON'T KNOW WHAT YOUR BASIS OF COMPARISON TO 3 THE C8 WAS. I JUST KNOW THAT THE AMOUNT OF UV STABILIZER IN 4 THE RESIN WE JUST DISCUSSED IN THE C4 WAS INSUFFICIENT. 5 Q. DID YOU KNOW THAT FOR IS A CERTAIN PERIOD OF TIME MY 6 CLIENT THEY HAVE A LOCATION IN DAYTON, TEN CONTINUE THEY ALSO 7 MADE THIS PRODUCT, WERE YOU AWARE OF THAT? 8 A. I WAS AWARE OF THAT. 9 Q. AND IN DAYTON, TENSE TENNESSEE MY CLIENT MADE THE 10 EVOLUTION PRODUCT WITH THE C8 FIBER IS THAT CORRECT? 11 A. THAT'S MY UNDERSTANDING. 12 Q. DID YOU KNOW THAT ABOUT 30 OF THE FIELDS THAT ARE BEING 13 CLAIMED AS FAILING IN THIS LAWSUIT WERE MADE IN DAYTON, 14 TENNESSEE WITH C8 FIBER? 15 A. I DON'T KNOW WHICH FIBERS WERE MADE IN WHAT LOCATION SO I 16 CAN'T ANSWER YOUR QUESTION, SIR. 17 Q. DR. DANIELS, ONE LAST THING. YOU TOLD US THAT YOU WERE 18 BEING PAID $250 AN HOUR. TODAY YOU ARE ACTUALLY BEING PAID 19 $350 AN HOUR, RIGHT? 20 A. YES MY CONSULTING FEE IS 250 AND MY TRIAL TESTIMONY FEE IS 21 350. YES. 22 Q. AND FIELDTURF HAS PAID YOU JUST ABOUT A HUNDRED THOUSAND 23 DOLLARS FOR YOUR WORK IN THIS CASE, HAVEN'T THEY? 24 A. I THINK THE -- YOU WILL HAVE TO DO THE MATH. I THINK I 25 ADDED UP AT THE BEGINNING OF THE MONTH I SPENT ABOUT $250, 142 1 WHATEVER THAT TURNS OUT TO BE I'M NOT SURE. 2 Q. WELL, AN EXHIBIT WAS INTRODUCED HASN'T BEEN ADMITTED YET 3 BUT LITIGATION EXPENSES IT SAYS CHARLES DANIELS IT'S ABOUT 98 4 THOUSAND DOLLARS. DOES THAT SOUND ABOUT RIGHT? 5 A. WELL, I'M SURE THAT INCLUDES TRAVEL AND OTHER THINGS AS 6 WELL. 7 Q. THANK YOU, MR. DANIELS? 8 A. THANK YOU. 9 THE COURT: REDIRECT, MR. KAPLAN? 10 MR. KAPLAN: YES, JUST A COUPLE OF QUESTIONS, YOUR 11 HONOR. 12 REDIRECT EXAMINATION 13 BY MR. KAPLAN: 14 Q. YOU WERE ASKED QUESTIONS AND YOU GAVE CERTAIN TESTIMONY 15 ABOUT EXPERIMENTAL ERROR. COULD YOU EXPLAIN WHAT THAT MEANS TO 16 THE COURT AND JURY? 17 A. SURE. ANY MEASUREMENT HAS A CERTAIN DEGREE OF 18 REPRODUCIBILITY WHETHER IT'S A SCIENTIFIC TEST LIKE THE ONE WE 19 TALKED ABOUT OR A MEDICAL TEST THAT YOU HAVE DONE YOU WOULD I 20 THINK BE SURPRISED TO KNOW THAT THE REPRODUCIBILITY OF MANY OF 21 OUR MEDICAL TESTS IS WELL ABOVE THE DEVIATION WE SAW IN YOUR 22 MEASURING LEVELS OF THINGS IN OUR BLOOD. THERE'S A CERTAIN 23 DEVIATION THAT'S A CERTAIN WHAT WE CALL ERROR MEASUREMENT THAT 24 EXISTS IN EVERY MEASURE. 25 Q. AND WHAT BUT AN ERROR MEASUREMENT COULD CREATE THE 9 143 1 PERCENT INCREASE IN THAT DOCUMENT THAT YOU WERE SHOWN, THE 2 CHART? 3 A. NOTHING OTHER THAN THE REPRODUCIBILITY OF THE ERROR 4 MEASUREMENT. 5 Q. AND IS THE CONCEPT OF EXPERIMENTAL ERROR A RECOGNIZED 6 SCIENTIFIC CONCEPT? 7 A. SURE F YOU REMEMBER SOME OF THE CHARTS THAT WERE SHOWN 8 HERE IN THE EXHIBIT WE LISTED SOMETHING CALLED STANDARD 9 DEVIATION THAT WAS AN ATTEMPT TO DETERMINE THAT VARIED 10 REPRODUCIBILITY AND SOMETIMES IT'S SMALL SOMETIMES IT'S LARGE 11 IT JUST DEPENDS ON THE SAMPLE AND THE NUMBER OF TESTS YOU RUN. 12 Q. AND SO YOU HAVE DONE IT BEFORE BUT IN LIGHT OF THE 13 CROSS-EXAMINATION COULD YOU EXPLAIN AGAIN THE RESULTS OF YOUR 14 MECHANICAL WEAR TESTING. 15 A. WELL, AGAIN, IN MY OPINION, THE DATA USED THERE DON'T 16 SUGGEST THAT THERE WAS A DECLINE AT ALL. I THINK IT WAS WELL 17 WITHIN REASONABLE SCIENTIFIC ERROR IN THESE TYPES OF 18 MEASUREMENTS. I HAVE TALKED TO THE PEOPLE WHO MAKE 19 MEASUREMENTS OF THAT TYPE WHO MADE THESE VERY MEASUREMENT AND 20 THEY SAY THAT'S ABOUT AS REPRODUCIBLE AS IT GETS. 21 Q. SO WHEN YOU SAY THERE WASN'T A DECLINE AT ALL THE BEATING 22 UP THE SAMPLES OR SAMPLES THAT YOU TESTED FOR MECHANICAL WEAR 23 DID NOT REDUCE THE AMOUNT OF UV PROTECTION MATERIAL IN THE 24 SAMPLE OUTSIDE OF AN EXPERIMENTAL ERROR? 25 A. IN MY OPINION, NO, IT DID NOT. 144 1 Q. THANK YOU VERY MUCH? 2 A. YES. 3 Q. CROSS MR. PENDER STRICTLY RELATED TO THE SCOPE OF THE 4 REDIRECT. 5 BY MR. PENDER: 6 Q. THIS ISSUE OF ERROR IF YOU COULD TURN TO TABLE 2, PAGE 14 7 OF THE SUPPLEMENTAL REPORT. IT'S ON PAGE 14. RIGHT THERE. IF 8 YOU COULD HIGHLIGHT CALABASAS HIGH SCHOOL ALL THE WAY ACROSS 9 THE LINE, MR. AVANT. YOU ARE SAYING THAT'S ONE OF THOSE ERROR 10 FINDINGS, RIGHT, SIR? 11 A. IT HAS TO BE. THERE'S NO OTHER WAY WE CAN CREATE THE 12 SUNSCREEN IN THAT FIBER. 13 Q. ONE OF THE PROBLEMS MIGHT BE THAT SOMEBODY TRANSPOSED THE 14 NUMBERS, RIGHT? THE CONTROL MIGHT HAVE BEEN 9164 AND THE WORN 15 8379, RIGHT? 16 A. THOSE NUMBERS WERE NOT TRANSPOSED, NO. 17 Q. THEY WERE TRANSPOSED THAT WOULD SHOW THAT THAT ONE WENT 18 DOWN TOO, DIDN'T IT? 19 A. BUT THEY WERE NOT TRANSPOSED. 20 Q. OKAY. THANK YOU. NO FURTHER QUESTIONS. 21 THE COURT: ALL RIGHT. DR. DANIELS, YOU ARE EXCUSED. 22 CALL YOUR NEXT WITNESS. 23 MR. KAPLAN: YOUR HONOR, PLAINTIFF CALLS DR. CHRIS 24 RAUWENDAAL AND WITH THE COURT'S PERMISSION MY COLLEAGUE REED 25 SKIBELL WILL CONDUCT THE EXAMINATION. 145 1 THE CLERK: IF YOU'LL RAISE YOUR RIGHT HAND, PLEASE. 2 (WITNESS PLACED UNDER OATH BY THE CLERK. ) 3 THE CLERK: PLEASE HAVE A SEAT, THEN STATE YOUR NAME 4 FOR THE RECORD. 5 THE WITNESS: MY NAME IS CHRIS RAUWENDAAL. 6 BY MR. SKIBELL: 7 Q. GOOD AFTERNOON, DR. RAUWENDAAL. 8 A. GOOD AFTERNOON. 9 Q. COULD YOU PLEASE TELL THE JURY WHY YOU ARE TESTIFYING HERE 10 TODAY. 11 A. I'M TESTIFYING ON THE EXTRUSION PROCESS, THE EXTRUSION 12 CONDITIONS THAT WERE USED TO MAKE THE EVOLUTION FIBER. 13 Q. AND ARE YOU TESTIFYING ABOUT THE EXTRUSION CONDITIONS IN 14 ANY PARTICULAR FACILITY? 15 A. YES, THE DUBAI MANUFACTURING FACILITY. 16 Q. AND THAT WAS THE MANUFACTURING FACILITY USED BY BOTH 17 MATTEX AND TENCATE TO PRODUCE EVOLUTION FIBER? 18 A. THAT IS CORRECT. 19 Q. NOW, IN LAYMAN'S TERMS, DR. RAUWENDAAL, CAN YOU EXPLAIN 20 WHAT EXTRUSION IS. 21 A. YES. 22 Q. COULD YOU ELABORATE, PLEASE. 23 A. EXTRUSION IS A VERY COMMON PROCESS TO MAKE PLASTIC 24 PRODUCTS BUT ALSO FOOD MATERIALS CAN BE EXTRUDED, METALS CAN BE 25 EXTRUDED. PLASTIC EXTRUSION IS ESSENTIALLY A LARGE MACHINE 146 1 LIKE A MEAT GRINDER. IT HAS A LONG SCREW IN IT THAT ROTATES. 2 ON THE FEEDINGS YOU FEED PLASTIC PELLETS, SOLID PELLETS. THESE 3 PELLETS THEY MOVE FORWARD BY THE ROTATION OF THE SCREW AND AS A 4 RESULT OF THAT HEATING OCCURS. THEN ALONG THE LENGTH OF THE 5 MACHINE THE PLASTIC MELTS SO AT THE END OF THE MACHINE IT IS 6 COMPLETELY MELTED AND AT PRESSURE AND THEN THE PRESSURE THEN 7 FORCE THE MATERIAL TO GO THROUGH A FORMING DIE AND SO YOU CAN 8 MAKE A CONTINUOUS PLASTIC PRODUCT THAT WAY WHICH CAN BE TUBING, 9 CAN BE SHEET, CAN BE FILM, CAN BE FIBER, SO MANY DIFFERENT 10 SHAPES CAN BE EXTRUDED. 11 Q. WOULD IT BE A LITTLE BIT LIKE MAKING SPAGHETTI IF YOU HAVE 12 EVER MADE SPAGHETTI? IS THAT A RIGHT WAY TO LOOK AT IT? 13 A. SPAGHETTI IS EXTRUDED AS WELL. 14 Q. AND YOU MENTIONED A FORMING DIE. CAN YOU EXPLAIN WHAT 15 THAT IS? 16 A. YEAH, THE FORMING DIE IS ESSENTIALLY A STEEL PART AT THE 17 END OF THE MACHINE AND IT HAS SOME CHANNELS MACHINED INTO IT 18 AND AS THE MATERIAL FLOWS THROUGH THESE CHANNELS IT ADOPTS THE 19 SHAPE OF THESE CHANNELS. SO IF YOU HAVE A CIRCULAR OPENING, 20 THEN YOU'LL EXTRUDE A CIRCULAR PRODUCT LIKE A FILAMENT. IF YOU 21 HAVE AN ANNULAR EXIT THEN YOU EXTRUDE A TUBING OR PIPE. IF YOU 22 HAVE A RECTANGULAR PRODUCT, THEN YOU EXTRUDE A RECTANGULAR 23 MATERIAL. 24 Q. SO WAS EVOLUTION FIBER MADE THROUGH EXTRUSION, 25 DR. RAUWENDAAL? 147 1 A. YES, IT WAS. 2 Q. NOW, BEFORE WE DISCUSS YOUR OPINIONS IN DETAIL ABOUT 3 EXTRUSION I'D LIKE YOU TO ASK A FEW BACKGROUND QUESTIONS. 4 A. OKAY. 5 Q. WHERE DID YOU GO TO SCHOOL, DR. RAUWENDAAL? 6 A. I WENT TO SCHOOL AFTER HIGH SCHOOL I WENT TO DELVES 7 UNIVERSITY. DELVES UNIVERSITY IS IN THE NETHERLANDS. AND I 8 RECEIVED A MASTER'S DEGREE IN MECHANICAL ENGINEERING. AND 9 LATER ON I WENT TO SCHOOL AT TWENTE UNIVERSITY. THIS IS IN 10 ENSCHEDE ALSO IN THE NETHERLANDS. AND I RECEIVED A PH.D. OR 11 DOCTORATE IN POLYMER PROCESSING. 12 Q. WHAT EXACTLY IS POLYMER PROCESSING? 13 A. POLYMER PROCESSING ESSENTIALLY IS THE SCIENCE AND 14 TECHNOLOGY OF CONVERTING PLASTIC RAW MATERIAL INTO A PRODUCT. 15 SO IT IS MOSTLY BY EXTRUSION OR BY MOLDING. 16 Q. NOW, HAVE YOU WRITTEN ANY ARTICLES ON POLYMER EXTRUSION, 17 DR. RAUWENDAAL? 18 A. YES, I HAVE WRITTEN APPROXIMATELY 140 ARTICLES AND PAPERS 19 RELATED TO EXTRUSION. 20 Q. HAVE YOU ALSO WRITTEN BOOKS ON POLYMER EXTRUSION? 21 A. I HAVE WRITTEN SIX BOOKS ON EXTRUSION AND I HAVE TWO MORE 22 THAT ARE IN PREPARATION. 23 Q. NOW, HAVE YOU BEEN GRANTED ANY PATENTS RELATED TO 24 EXTRUSION? 25 A. YES. I HAVE SIX -- NO, NINE U.S. PATENTS AND MANY MORE 148 1 INTERNATIONAL PATENTS. 2 Q. NOW, HAVE YOU EVER LECTURED ON POLYMER EXTRUSION? 3 A. I'VE BEEN LECTURING ON EXTRUSION FOR ABOUT THE PAST 30 4 YEARS IN CONFERENCES I TEACH SHORT COURSES. I HAVE DONE GUEST 5 LECTURES AT UNIVERSITIES. AND SO OVER THE COURSE OF THESE 30 6 YEARS THIS IS PROBABLY HUNDREDS OF PRESENTATIONS AND LECTURES. 7 Q. WHERE HAVE YOU DONE THESE LECTURES OR SPEAKING ENGAGEMENTS 8 ON EXTRUSION? 9 A. THEY HAVE BEEN ALL OVER THE WORLD, MOST OF THEM IN THE 10 UNITED STATES BUT I'VE PRESENTED PAPERS IN HOLLAND AND MANY 11 COUNTRIES IN EUROPE AND SOUTH AMERICA AND ASIA, IN AFRICA. SO 12 IT'S BEEN WORLDWIDE. 13 Q. NOW, ARE YOU A MEMBER OF ANY PROFESSIONAL ORGANIZATIONS? 14 A. I'M A MEMBER OF THE POLYMER PROCESSING SOCIETY. I'M ALSO 15 A MEMBER OF THE SOCIETY OF PLASTICS ENGINEERS. 16 Q. NOW, TURNING TO YOUR WORK EXPERIENCE, DR. RAUWENDAAL, CAN 17 YOU BRIEFLY DESCRIBE YOUR WORK IN POLYMER EXTRUSION. 18 A. YES, I CAN. I STARTED WORKING IN 1973, AND I WORKED FOUR 19 YEARS FOR A COMPANY CALLED AMERICAN ANCHOR. AND THIS WAS A 20 COMPANY PRODUCING FIBERS, MANMADE FIBERS. AND I WORKED THERE 21 FOR FOUR YEARS IN THE AREA OF EXTRUSION OF FIBERS. THEN 1977 I 22 WENT TO WORK FOR RAYCHEM CORPORATION. I WORKED THERE FOR ABOUT 23 13 YEARS, WORKED FIRST AS A PROCESS ENGINEER AND THEN MANAGER 24 OF PROCESS ENGINEERING AND LEFT THERE IN 1990. AND AT THAT 25 POINT I STARTED MY OWN ENGINEERING COMPANY. AND THIS IS WHAT 149 1 I'VE BEEN DOING FOR THE LAST 24 YEARS. AND THE WORK THAT I DO 2 IS MACHINE DESIGN, CONSULTING, TRAINING, LECTURING AND A SMALL 3 AMOUNT OF EXPERT WITNESS WORK. 4 Q. SO CAN YOU DO THE MATH FOR MR. DR. RAUWENDAAL ABOUT HOW 5 MANY YEARS APPROXIMATELY HAVE YOU BEEN WORKING IN POLYMER 6 EXTRUSION? 7 A. I THINK I CAN DO THE MATH. 8 Q. OKAY. 9 A. THIS IS ALMOST 41 YEARS. 10 Q. AND NOW, TURN TO GO YOUR OWN BUSINESS, IS PART OF THAT 11 WORK CONSULTING WORK? 12 A. PART OF IT IS CONSULTING WORK, YES. 13 Q. AND ON WHAT TYPES OF MATTERS DO YOU TYPICALLY CONSULT, 14 DR. RAUWENDAAL? 15 A. IT'S QUITE A RANGE. I WOULD SAY QUITE A BIT OF THE WORK 16 HAS TO DO WITH TROUBLESHOOTING AND ALSO QUITE A BIT DEALS WITH 17 PRODUCT PROBLEMS. AND SO A LOT OF IT -- MOST OF IT IS ACTUALLY 18 TROUBLESHOOTING, HELPING COMPANIES SOLVE PROBLEMS THAT THEY ARE 19 NOT ABLE TO SOLVE BY THEMSELVES. 20 Q. IN CONNECTION WITH THIS CONSULTING WORK, APPROXIMATELY HOW 21 MANY DIFFERENT COMPANIES HAVE YOU WORKED FOR? 22 A. THIS IS PROBABLY IN THE RANGE OF 200, MAYBE FOUR HUNDRED. 23 SO IT'S QUITE A LARGE NUMBER. 24 Q. CAN YOU EXPLAIN WHAT TYPES OF CLIENTS YOU HAVE IN THIS 25 CONSULTING PRACTICE? 150 1 A. QUITE A RANGE. SOME COMPANIES ARE RELATIVELY SMALL. THEN 2 I HAVE WORKED FOR VERY LARGE COMPANIES, MULTI BILLION DOLLARS 3 COMPANIES. AND I HAVE ALSO ON OCCASION WORKED FOR RESIN 4 PRODUCERS BUT MOST OF MY WORK IS WITH PROCESSORS. 5 Q. WHEN YOU SAY RESIN PRODUCERS ARE THOSE THE PEOPLE AT THAT 6 MAKE THE PLASTIC PELLETS THAT ARE USED IN EXTRUSION? 7 A. THAT IS CORRECT. 8 Q. NOW IN TERMS OF THE PROCESSORS ARE THOSE THE PEOPLE THAT 9 DO EXTRUSION WHEN YOU REFER TO PROCESSORS ARE THOSE THE -- 10 A. YEAH, WHEN I TALK ABOUT PROCESSORS I TALK ABOUT COMPANIES 11 THAT THEY BUY RESIN FROM RESIN SUPPLIERS AND CONVERT THAT INTO 12 AN EXTRUDED PRODUCT. SO THAT'S -- PROCESS CERTIFICATE IS A 13 FAIRLY COMMON TERM FOR THAT, YES. 14 Q. AND WHAT TYPES OF PRODUCTS ARE THEY MAKING? 15 A. HUGE RANGE. IT CAN BE FILM. IT CAN BE TUBING. IT CAN BE 16 FOAM MATERIALS. THERE'S AN ENORMOUS RANGE OF PRODUCTS THAT IS 17 EXTRUDED LIKE CATHETERS FOR MEDICAL APPLICATIONS. SO THERE'S 18 ENORMOUS RANGE OF PRODUCTS. 19 Q. AND ALL THESE COMPANIES HAVE ASKED FOR YOUR PROFESSIONAL 20 ADVICE IN EXTRUSION? 21 A. YES. 22 Q. HAVE YOU ALSO WORKED AS AN EXPERT WITNESS ON EXTRUSION 23 ISSUES? 24 A. I HAVE ON A FEW OCCASIONS, YES. 25 Q. CAN YOU TELL ME APPROXIMATELY HOW MANY CASES YOU HAVE 151 1 WORKED AS AN EXPERT WITNESS. 2 A. IT IS IN THE RANGE OF I WOULD SAY 20, 30 CASES I HAVE 3 WORKED ON. 4 Q. AND ON WHAT TYPES OF MATTERS HAVE YOU SERVED AS AN EXPERT 5 WITNESS? 6 A. A NUMBER OF DIFFERENT ONES. I WOULD SAY THE MOST COMMON 7 ISSUES I DEAL WITH IS PAT BE TENT INFRINGEMENT, AND THE OTHER 8 ONE IS PRODUCT FAILURE. 9 Q. HAVE YOU EVER BEEN QUALIFIED BY A COURT AS AN EXPERT? 10 A. YES, I HAVE BEEN. 11 Q. HOW MANY TIMES, DR. RAUWENDAAL? 12 A. THREE TIMES. 13 Q. YOUR HONOR, I TENDER DR. RAUWENDAAL AS AN EXPERT ON THE 14 EXTRUSION OF PLASTICS. 15 MR. CREMER: WE STAND ON THE PRETRIAL OBJECTION TO 16 THIS WITNESS. 17 THE COURT: ALL RIGHT. CONSISTENT WITH MY PREVIOUS 18 RULINGS I WILL ACCEPT THE TENDER OF MR. -- OF DR. RAUWENDAAL AS 19 AN EXPERT IN THE EXTRUSION OF PLASTICS. 20 BY MR. SKIBELL: 21 Q. NOW, DR. RAUWENDAAL, WHEN WERE YOU RETAINED IN THIS 22 MATTER? 23 A. I BELIEVE IT STARTED EARLY 2012. 24 Q. AND WHAT EXACTLY WERE YOU ASKED TO DO IN CONNECTION WITH 25 THAT RETENTION? 152 1 A. I WAS ASKED TO EXAMINE THE EXTRUSION PROCESS THAT WAS USED 2 BY THE PLANT IN DUBAI. 3 Q. NOW, DID YOU REACH ANY EXPERT OPINIONS IN THIS CASE? 4 A. YES, I DID. 5 Q. AND WHAT ARE THOSE EXPERT OPINIONS? 6 A. IN MY OPINION, THE CONDITIONS THAT WERE USED IN THE 7 EXTRUSION PROCESS WERE INAPPROPRIATE FOR THE MATERIAL. THE 8 MATERIAL WAS EXTRUDED AT EXCESS CIVIL HIGH TEMPERATURES AND IN 9 MY OPINION THERE IS A VERY SUBSTANTIAL LIKELIHOOD THAT THESE 10 VERY HIGH TEMPERATURES CREATED DEGRADATION IN THE POLYMER. 11 Q. CAN YOU EXPLAIN WHAT A POLYMER DEGRADATION IS, WHAT THAT 12 MEANS IN THE CONTEXT OF EXTRUDING A PLASTIC FIBER LIKE 13 EVOLUTION? 14 A. WELL, SOME OF THAT WAS DISCUSSED ALREADY BY DR. DANIELS. 15 DEGRADATION IS WHERE THE POLYMER IS EXPOSED TO CONDITIONS SUCH 16 AS TEMPERATURE OR STRESS OR CHEMICALS WHERE THERE IS A 17 SIGNIFICANT DECLINE IN THE PROPERTIES OF THE MATERIAL. 18 Q. AND THAT CAN HAPPEN DURING THE EXTRUSION PROCESS, DURING 19 THE MAKING OF A FIBER? 20 A. ABSOLUTELY, YES. 21 Q. NOW, WHEN THERE'S POLYMER DEGRADATION DURING THE EXTRUSION 22 PROCESS, CAN THAT IMPACT THE UV STABILITY OF THE END PRODUCT, 23 THE FIBER? 24 A. ABSOLUTELY IT CAN. 25 Q. NOW, WHEN YOU HAVE -- 153 1 THE COURT: EXCUSE ME, MR. SKIBELL. I THINK WE WILL 2 TAKE OUR AFTERNOON BREAK AT THIS TIME. LADIES AND GENTLEMEN, 3 DURING THE BREAK REMEMBER MY INSTRUCTIONS TO YOU NOT TO DISCUSS 4 THE CASE WITH ANYONE. DON'T ALLOW ANYONE TO DISCUSS THE CASE 5 IN YOUR PRESENCE. DON'T EVEN BEGIN DISCUSSING THE CASE AMONG 6 YOURSELVES YET AND YOU ARE EXCUSED UNTIL 3:15 AND WE WILL 7 RESUME THE TRIAL AT THAT TIME. COURT'S IN RECESS UNTIL 3:15. 8 (A SHORT RECESS WAS TAKEN.) 9 THE COURT: WE'RE READY FOR THE JURY. 10 (JURY ENTERED THE COURTROOM.) 11 THE COURT: ALL RIGHT, MR. SKIBELL. 12 BY MR. SKIBELL: 13 Q. DR. RAUWENDAAL, WHEN WE TOOK A BREAK WE WERE TALKING ABOUT 14 POLYMER DEGRADATIONS. TO BACKTRACK JUST FOR ONE MINUTE, COULD 15 POLYMER DEGRADATION IMPACT THE UV STABILITY OF THE FIBER AFTER 16 IT'S PRODUCED? 17 A. ABSOLUTELY, YES. 18 Q. NOW, WILL POLYMER DEGRADATION SHOW UP IN A VISUAL 19 INSPECTION OF THE FIBER AFTER THE EXTRUSION PROCESS IS OVER? 20 A. IN SOME CASES, THERE IS A VISUAL DEFECT IN THE MATERIAL 21 THAT'S EXTRUDED. IN MANY CASES, THOUGH, THERE IS NO VISUAL 22 SIGN OF DEGRADATION. 23 Q. SO YOU MAY NOT IMMEDIATELY REALIZE THAT YOU HAVE A POLYMER 24 DEGRADATION PROBLEM AFTER EXTRUSION? 25 A. THIS IS VERY COMMON, YES. 154 1 Q. NOW, WHAT MATERIALS DID YOU REVIEW IN REACHING YOUR EXPERT 2 OPINIONS IN THIS CASE? 3 A. I REVIEWED FOUR DIFFERENT DEPOSITIONS, ONE OF 4 MR. VERLEYAN, ONE OF MR. MUEHLE, GROTENHUIS AND REEFMAN. AND, 5 IN ADDITION, I LOOKED AT MANY PRODUCTION REPORTS, QUALITY 6 ASSURANCE REPORT REPORTS AND I ALSO LOOKED AT AN AUDIT THAT WAS 7 PERFORMED AT THE DUBAI FACILITY IN 2006. 8 Q. NOW YOU SAID YOU REVIEWED MANY PRODUCTION REPORTS. 9 APPROXIMATELY HOW MANY PRODUCTION REPORTS DID YOU REVIEW? 10 A. I LOOKED AT AROUND 1400 REPORTS. 11 Q. AND HOW DID YOU CHOOSE WHICH REPORTS TO REVIEW? 12 A. I TOOK WHAT I CONSIDERED REPRESENTATIVE SAMPLES OVER THE 13 ENTIRE TIME PERIOD THAT IS IN QUESTION. 14 Q. WHAT INFORMATION ARE IN THOSE INTERNAL PRODUCTION REPORTS 15 FROM MATTEX AND TENCATE? 16 A. THE PRODUCTION REPORTS THEY SHOW THE PROCESS CONDITIONS 17 THAT WE USED IN THE EXTRUSION PROCESS AND ALSO DOWNSTREAM, AND 18 THEY ALSO SHOWED TESTING OF PHYSICAL PROPERTIES OF THESE -- OF 19 THE FIBER THAT WAS PRODUCED. 20 Q. COULD YOU TELL THE VARIOUS MACHINE SETTINGS ON THOSE 21 EXTRUDERS LIKE TEMPERATURE OR SPEED? 22 A. THE CONDITIONS THAT WERE LISTED WERE MACHINE TEMPERATURES 23 AND OTHER THINGS LIKE ROTATIONAL SPEED OF THE SCREW, LINE 24 SPEED, THE PRESSURES THAT WERE DEVELOPED IN THE MACHINE. SO 25 THOSE WERE SOME OF THE DATA THAT WAS LISTED IN THE REPORTS. 155 1 Q. NOW, YOU TESTIFIED BRIEFLY EARLIER ABOUT TEMPERATURE. IS 2 IT IMPORTANT TO MONITOR THE TEMPERATURE OF THE MOLTEN PLASTIC 3 DURING THE EXTRUSION PROCESS? 4 A. THIS IS VERY CRITICAL. IN ANY EXTRUSION PROCESS WHERE YOU 5 ARE MAKING FIBER OR YOU ARE MAKING FILM OR ANY OTHER PRODUCT IT 6 IS ESSENTIAL THAT YOU MEASURE AND MONITOR THE TEMPERATURE OF 7 THE MOLTEN PLASTIC. 8 Q. AND WHY IS THAT, DR. RAUWENDAAL? 9 A. BECAUSE THIS IS CALLED THE MELT TEMPERATURE. IT 10 DETERMINES TO WHAT EXTENT DEGRADATION MAY BE AN ISSUE IN THE 11 EXTRUSION PROCESS. SO IF YOU DO NOT MONITOR THIS YOU REALLY DO 12 NOT KNOW IF YOU ARE GOING TO BE DEGRADING THE MATERIAL AS YOU 13 ARE EXTRUDE IT GO. 14 Q. NOW, DOES THE SPEED OF THE EXTRUDER ALSO IMPACT THE 15 QUALITY OF THE POLYMER YOU EXTRUDE? 16 A. IT DOES. IN A NUMBER OF DIFFERENT WAYS. ONE ISSUE THAT 17 OCCURS WHEN YOU INCREASE THE SPEED OF THE MACHINE, INCREASE THE 18 SCREW SPEED THERE WILL BE MORE HEAT BEING GENERATED IN THE 19 MACHINE SO IT MEANS THAT THE TEMPERATURE OF THE MOLTEN PLASTIC 20 WILL INCREASE SO YOU WILL GET A GREATER CHANCE OF DEGRADATION. 21 ANOTHER ASPECT IS THAT AS YOU INCREASE THE THROUGH-PUT RATE 22 THAT THE RESIDENCE TIMES IN THE MACHINE WILL REDUCE. THIS 23 MEANS THERE IS LESS TIME AVAILABLE FOR MIXING SO THAT THE 24 HOMOGENEITY OF THE PRODUCT WILL TEND TO REDUCE AS YOU SPEED UP 25 THE PROCESS. 156 1 Q. SO BY THROUGH-PUT RATE YOU MEAN THE SPEED AT WHICH THE 2 FIBER GOES THROUGH THE MACHINE? 3 A. IT WOULD BE WE COULD MEASURE THAT IN LINE SPEED. 4 TYPICALLY IT'S MEASURED IN POUNDS PER HOUR IN THE UNITED 5 STATES. AND IN EVERY OTHER COUNTRY IN THE WORLD IT WOULD BE 6 MEASURED IN KILOGRAMS PER HOUR. 7 Q. AND YOU SAID IT CAN AFFECT THE HOMOGENEITY OF THE PRODUCT. 8 CAN YOU EXPLAIN WHAT YOU MEAN BY THAT? 9 A. WELL, ONE OF THE TASKS IN THE EXTRUSION PROCESS IS TO MIX 10 THE MATERIAL, THE DIFFERENT INGREDIENTS THAT ARE ADDED TO THE 11 MACHINE. AND IT'S ALSO VERY IMPORTANT THAT YOU OBTAIN A 12 THERMALLY HOMOGENEOUS MATERIAL. SO IF YOU ADD A MASTERBATCH TO 13 THE EXTRUSION MATERIAL, THEN IT'S VERY IMPORTANT THAT THERE'S 14 GOOD MIXING TAKING PLACE. AND AS YOU RUN FASTER, THEN THE 15 MIXING TENDS TO REDUCE. SO THE HOMOGENEITY OF THE MATERIAL 16 TENDS TO REDUCE AS WELL BUT INCREASING OUTPUT. 17 Q. NOW, CAN YOU EXPLAIN GENERALLY HOW A HIGH QUALITY 18 MANUFACTURER OF PLASTICS MONITORS TEMPERATURE DURING THE 19 EXTRUSION PROCESS? 20 A. YES. THE HIGH QUALITY MANUFACTURERS WILL AT THE VERY 21 MINIMUM MONITOR THE MELT TEMPERATURE, THE MELT PRESSURE AND THE 22 MOTOR LOAD IN ADDITION TO OTHER VARIABLES AND THEY WILL MONITOR 23 THAT OVER THE ENTIRE LENGTH OF THE RUN SO THEY WON'T DO JUST 24 ONE MEASUREMENT BUT THEY WILL MONITOR THOSE VARIABLES OVER THE 25 ENTIRE LENGTH OF THE RUN TO KNOW THAT THE PROCESS IS BEHAVING 157 1 AS IT SHOULD. 2 Q. AND DO THEY USE A PARTICULAR INSTRUMENT TO MONITOR THIS 3 TEMPERATURE DURING THE EXTRUSION PROCESS? 4 A. YEAH. THE TYPICAL METHOD OF MEASURING THE TEMPERATURE OF 5 THE MOLTEN PLASTIC IS BY USING WHAT IS CALLED AN IMMERSION 6 PROBE, SO THAT IS A PROBE THAT IS ACTUALLY PROTRUDING INTO THE 7 MELT STREAM SO IT'S COMPLETELY SURROUNDED BY THE MELT. AND 8 USUALLY A THERMOCOUPLE IS USED IN THAT PROBE TO MEASURE -- TO 9 DETERMINE THE TEMPERATURE OF THE MOLTEN PLASTIC. AND THIS IS 10 ONE OF THE MOST ESSENTIAL MEASUREMENTS IN THE EXTRUSION 11 PROCESS. 12 Q. SO YOU DIP THE PROBE INTO THE MOLTEN PLASTIC; IS THAT HOW 13 IT WORKS? 14 A. THAT IS CORRECT, YES. 15 Q. AND WERE YOU ABLE TO TELL HOW MATTEX AND TENCATE WERE 16 MONITORING TEMPERATURE AT THEIR DUBAI FACILITY? 17 A. OF ALL THE DOCUMENTS THAT I HAVE REVIEWED, I HAVE SEEN NO 18 INDICATION THAT THERE WAS A MEASUREMENT OF THE MELT TEMPERATURE 19 WHERE THERE WAS A PROBE ACTUALLY INSIDE THE MOLTEN PLASTIC. 20 THE MELT TEMPERATURE THAT WAS LISTED I BELIEVE WAS THE 21 TEMPERATURE OF THE MACHINE, THE METAL SURROUNDING THE PLASTIC 22 BUT NOT THE PLASTIC ITSELF. 23 Q. IS THERE TYPICALLY A DIFFERENCE BETWEEN THE TEMPERATURE 24 READING YOU GET FROM MEASURING IT OFF OF THE MACHINE VERSUS 25 DIPPING A PROBE INTO THE MOLTEN PLASTIC? 158 1 A. THERE IS USUALLY A LARGE DIFFERENCE WHERE THE MELT 2 TEMPERATURE GENERALLY TENDS TO BE HIGHER THAN THE TEMPERATURE 3 OF THE MACHINE. 4 Q. SO WHEN YOU GET THE PROBE YOU GET USUALLY THE TEMPERATURE 5 READING IS HIGHER? 6 A. THAT'S CORRECT. 7 Q. NOW, OH HOW OFTEN WERE MATTEX AND TENCATE MONITORING 8 TEMPERATURE DURING THE EXTRUSION PROCESS? 9 A. THE DATA THAT I HAVE SEEN SHOWS THAT THERE'S ONLY ONE 10 MEASUREMENT OF THE LENGTH OF THE RUN AND IN MY VIEW THAT IS 11 GROSSLY INSUFFICIENT. 12 Q. AND WHY DO YOU BELIEVE IT'S GROSSLY INSUFFICIENT, 13 DR. RAUWENDAAL? 14 A. BECAUSE THE EXTRUSION PROCESS IS SUSCEPTIBLE TO VARIATION 15 SO IF YOU DO ONE MEASUREMENT 6 TEMPERATURE AND PRESSURE THAT 16 DOESN'T ALWAYS STAY CONSTANT OVER THE LENGTH OF THE RUN. AND 17 SO IF YOU WANT TO CONTROL THE PROCESS YOU WILL NEED TO MONITOR 18 THE PROCESS OVER THE ENTIRE LENGTH OF THE RUN. 19 Q. NOW, THEY ARE MONITORING ONLY ONE STREAM DURING THE 20 EXTRUSION PROCESS COULD THAT HAVE HAD AN IMPACT ON THE FIBER 21 THEY EXTRUDED AND THEN SOLD TO FIELDTURF? 22 A. WELL, IF ONLY MEASURE ONCE THAT MEANS THAT YOU REALLY HAVE 23 NO IDEA WHAT THE TEMPERATURE WAS AT ALL TIMES. SO IT GIVES YOU 24 ONLY A SNAPSHOT INSTEAD OF KNOWING EXACTLY WHAT HAPPENED OVER 25 THE LENGTH OF THE RUN. 159 1 Q. NOW, TURNING TO ONE OF YOUR OTHER OPINIONS, DID YOU REACH 2 A CONCLUSION AS TO WHAT TEMPERATURE MATTEX AND TENCATE SHOULD 3 HAVE BEEN USING TO PRODUCE EVOLUTION FIBER IN DUBAI? 4 A. YES. ONE OF THE PIECES OF INFORMATION THAT YOU WOULD LOOK 5 FOR -- 6 THE COURT: SOMEBODY'S ABOUT TO GET A CELL PHONE 7 CONFISCATED. 8 COURT SECURITY OFFICER: MAKE SURE IT'S ON SILENCE OR 9 OFF. 10 BY MR. SKIBELL: 11 Q. I'M SORRY FOR THAT, DR. RAUWENDAAL. 12 A. YEAH. SO ONE OF THE PIECES OF INFORMATION YOU WOULD LOOK 13 AT WOULD BE THE RECOMMENDED TEMPERATURES BY THE RESIN PRODUCER. 14 AND IN THIS PARTICULAR CASE, SABIC WAS THE PRODUCER OF THE 15 RESIN AND THEIR RECOMMENDED TEMPERATURES RANGE FROM 185 TO 205. 16 THIS IS IN THE DEGREES CENTIGRADE. 17 Q. AND WHAT IS THAT ROUGHLY IN FAHRENHEIT? 18 A. THIS WOULD BE AROUND FOUR HUNDRED DEGREES FAHRENHEIT. 19 Q. AND SO THIS IS THE RECOMMENDATION OF THE SUPPLIER TO 20 MATTEX AND TENCATE WHAT THEY SUGGEST TO USE IN MANUFACTURING 21 EVOLUTION? 22 A. THERE IS WHAT THE RESIN PRODUCER RECOMMENDED AND THEIR 23 RECOMMENDATIONS ARE BASED ON WHAT THEIR POLYMER CAN HANDLE IN 24 TERMS OF TEMPERATURE. SO THEY MAKE RECOMMENDATIONS THAT WILL 25 VERY LIKELY RESULT IN A GOOD PRODUCT. 160 1 Q. NOW, BASED ON YOUR OWN EXPERIENCE, DO YOU HAVE A GENERAL 2 IDEA OF WHAT TEMPERATURE IS NORMALLY USED TO PRE DOES A FIBER 3 LIKE EVOLUTION FIBER? 4 A. I THINK THE TEMPERATURE RANGE THAT RESIN PRODUCER HAS 5 RECOMMENDED IS REASONABLE. TYPICALLY, THIS IS LINEAR LOW 6 DENSITY POLYETHYLENE TYPICALLY EXTRUDED AT TEMPERATURES AROUND 7 200 DEGREES CENTIGRADE, AROUND 400 DEGREES FAHRENHEIT. 8 Q. NOW, IS IT -- IN YOUR OPINION, TO MAKE A HIGH QUALITY 9 PLASTIC, SHOULD ONE FOLLOW THE TEMPERATURE RECOMMENDATION OF 10 THE RESIN SUPPLIER? 11 A. I THINK IT WOULD BE VERY PRUDENT TO DO SO. 12 Q. IN YOUR EXPERIENCE, DO MOST HIGH QUALITY MANUFACTURERS 13 FOLLOW THE TEMPERATURE RECOMMENDATION OF THE RESIN SUPPLIER? 14 A. I WOULD SAY PRETTY MUCH WITHOUT EXCEPTION UNLESS THEY DID 15 SOMETHING REALLY UNUSUAL IN THE EXTRUSION PROCESS. 16 Q. NOW I WANT TO HAND AWE DOCUMENT THAT'S BEEN PRE-MARKED AS 17 PLAINTIFF'S EXHIBIT 1056, DR. RAUWENDAAL. CAN YOU EXPLAIN WHAT 18 THIS DOCUMENT IS? 19 A. YEAH. THIS IS A SHEET, DATA SHEET FROM SABIC AND SABIC IS 20 THE PRODUCER OF THIS PARTICULAR PLASTIC. AND IT SHOWS ON THE 21 TOP IT'S A DATA SHEET FOR THE 218 SERIES OF LINEAR LOW DENSITY 22 POLYETHYLENE. 23 Q. ARE YOU FAMILIAR WITH THESE TYPES OF DATA SHEETS? 24 A. YES, I AM. 25 Q. NOW, DID YOU DO ANYTHING TO CONFIRM THAT THIS DATA SHEET 161 1 IS THE MOST RECENT SABIC DATA SHEET FOR THE 218 W? 2 A. YEAH. I'VE GONE ON THIS SABIC WEBSITE AND VERIFIED THAT 3 IS INDEED THE INFORMATION FROM SABIC. 4 Q. YOUR HONOR, I'M GOING TO MOVE THIS EXHIBIT INTO EVIDENCE. 5 MR. CREMER: NO OBJECTION. 6 THE COURT: ADMITTED WITHOUT OBJECTION. 7 BY MR. SKIBELL: 8 Q. NOW I WANT TO LOOK AT THE TOP OF THIS PARTICULAR DOCUMENT. 9 NOW IT SAYS LINEAR LOW DENSITY POLYETHYLENE CAN YOU EXPLAIN HAD 10 A THAT IS, DR. RAUWENDAAL. 11 A. YES, I CAN. IT IS A TYPE OF POLYETHYLENE. THERE IS A FEW 12 MAIN TYPES. YOU HAVE LOW DENSITY POLYETHYLENE. YOU HAVE 13 LINEAR LOW DENSITY POLYETHYLENE AND YOU HAVE HIGH DENSITY 14 POLYETHYLENE. SO THESE ARE THE THREE MAIN TYPES OF 15 POLYETHYLENE. 16 Q. AND JUST TO GO TO LAYMAN'S TERMS, IS POLYETHYLENE ANOTHER 17 WORD FOR SORT OF PLASTIC? 18 A. POLYETHYLENE BASICALLY DESCRIBES THE CHEMICAL MAKEUP OF 19 THE PRODUCT. IT'S BASICALLY A COMBINATION OF CARBON AND 20 HYDROGEN ATOMS. 21 Q. AND IT SAYS FOR BLOWN FILM. CAN YOU EXPLAIN WHAT BLOWN 22 FILM IS THERE? 23 A. BLOWN FILM IS A SPECIAL TYPE OF EXTRUSION THAT IS USED TO 24 MAKE FILM. AND ESSENTIALLY WHAT THIS IS IS AN EXTRUSION OF A 25 TUBE, PLASTIC TUBE THAT IS INFLATED. SO, ACTUALLY, YOU BLOW A 162 1 BUBBLE IN THE PROCESS; AND THE BUBBLE DIAMETER IS SUBSTANTIALLY 2 LARGER THAN THE DIAMETER OF THE DIE THAT PRODUCES THAT PRODUCT. 3 Q. SO BLOWN FILM IS A TYPE OF EXTRUSION? 4 A. IT IS ONE OF MANY TYPES OF EXTRUSION, YES. 5 Q. NOW, IS THIS DATA SHEET FOR THE SABIC 218 RESIN, IS THIS 6 ONLY FOR BLOWN FILM EXTRUSION? 7 A. NO. IT CAN BE USED FOR MANY DIFFERENT TYPES OF EXTRUSIONS 8 OR YOU CAN USE THIS PRODUCT TO MAKE FIBER. YOU CAN MAKE THIS 9 PRODUCT TO MAKE TUBING. YOU CAN MAKE THIS PRODUCT TO MAKE 10 SHEET. SO IT CERTAINLY DOESN'T LIMIT THIS MATERIAL TO ONE 11 PARTICULAR TYPE OF PRODUCT. 12 Q. SO NOW I'M GOING TO DIRECT YOUR ATTENTION TO THE BOTTOM OF 13 THIS DOCUMENT WHERE IT TALKS ABOUT PROCESSING CONDITIONS. IT 14 SAYS TYPICAL PROCESSING CONDITIONS FOR 218 W ARE MELT 15 TEMPERATURE 185 TO 205 CELSIUS. CAN YOU EXPLAIN WHAT THAT 16 RECOMMENDATION THERE MEANS, DR. RAUWENDAAL? 17 A. WELL, THE RECOMMENDATION IS THAT WHEN YOU EXTRUDE THIS 18 MATERIAL THAT THE PREFERRED RANGE OF TEMPERATURES WOULD BE 19 WITHIN THESE TWO LIMITS. SO BETWEEN 185 AND 205 DEGREES SENT 20 GRADE. 21 Q. YOU REFERRED EARLIER IN YOUR TESTIMONY TO THE RECOMMENDED 22 TEMPERATURE TO EXTRUDE THE 218 W. IS THIS WHAT YOU WERE 23 REFERRING TO? 24 A. THIS IS EXACTLY WHAT I WAS REFERRING TO. 25 Q. AND SO BELOW THAT IT SAYS BLOW UP RATIO. CAN YOU EXPLAIN 163 1 WHAT A BLOWUP RATIO IS, DR. RAUWENDAAL. 2 A. YEAH, BLOW UP RATIO IS SPECIFIC TO BLOWN FILM EXTRUSION. 3 AND IT'S SIMPLY THE RATIO OF THE DIAMETER OF THE BUBBLE TO THE 4 DIAMETER OF THE DIE. 5 Q. SO IS THE TEMPERATURE RECOMMENDATION THERE WHERE IT SAYS 6 MELT TEMPERATURE IS THAT HAVE A RELATIONSHIP WITH BLOW UP 7 RATIO? 8 A. NO. THAT'S ENTIRELY UNRELATED. 9 Q. NOW, IF MATTEX AND TENCATE WANTED TO BYE A RESIN OR 10 PLASTIC PELLET WITH A HIGHER RECOMMENDED TEMPERATURE, ONE THAT 11 WAS ABOVE 205 CELSIUS, COULD THEY HAVE DONE THAT? 12 A. ABSOLUTELY, YES. 13 Q. NOW, IN YOUR EXPERIENCE, WOULD THAT HAVE AFFECTED THE 14 PRICE AT WHICH THEY WERE BUYING THE RESIN IF THEY WANTED A 15 HIGHER TEMPERATURE RESIN? 16 A. IF YOU WANTED TO RUN AT HIGHER TEMPERATURES, YOU COULD BUY 17 A MATERIAL THAT WAS SPECIFICALLY MADE TO HANDLE HIGH 18 TEMPERATURES. AND THE WAY THE RESIN PRODUCER WILL DO THAT THEY 19 WILL ADD MORE STABILIZER TO THE MATERIAL SO THAT IT CAN HANDLE 20 HIGHER TEMPERATURES. OF COURSE, AT THE SAME TIME IT WILL 21 BECOME MORE EXPENSIVE. 22 Q. SO NOW, DID YOU IN YOUR REVIEW OF ALL THESE INTERNAL 23 PRODUCTION REPORTS, THESE 1,000 FOUR HUNDRED REPORTS, DID YOU 24 OBSERVE WHAT TEMPERATURES MATTEX AND TENCATE WERE USING TO 25 EXTRUDE THE FIBER THEY ACTUALLY SOLD TO FIELDTURF? 164 1 A. THEY WERE GENERALLY OPERATING AT TEMPERATURES 2 SUBSTANTIALLY ABOVE THESE RECOMMENDED TEMPERATURES. IN MANY 3 INSTANCES, THEY WERE OPERATING THEIR MACHINE AT TEMPERATURES UP 4 TO 245 DEGREES CENTIGRADE AND EVEN IN SOME INSTANCES AT 265 5 DEGREES CENTIGRADE. 6 Q. SO DR. RAUWENDAAL, I'M GOING TO RELY ON YOUR MATH SKILLS 7 ONE MORE TIME HERE SO CAN YOU TELL ME APPROXIMATELY HOW MUCH 8 HIGHER IN TEMPERATURE THEY WERE EXTRUDING ABOVE WHAT SABIC 9 RECOMMENDED THEY SHOULD ACTUALLY BE EXTRUDING AT. 10 A. WELL, THIS IS A SIGNIFICANT CHALLENGE. YEAH, 245 WOULD BE 11 A MINIMUM OF 40 DEGREES CENTIGRADE ABOVE THE RECOMMENDED 12 TEMPERATURES. AND 265 WOULD BE 60 DEGREES CENTIGRADE ABOVE THE 13 RECOMMENDED TEMPERATURES, AND THAT IS AN ENORMOUS AMOUNT. 14 Q. SO LET ME MAKE SURE I UNDERSTAND THIS. IN THE WORLD OF 15 EXTRUSION THE DIFFERENCE BETWEEN WHAT THEY WERE ACTUALLY 16 EXTRUDING AT AND WHAT THEY SHOULD HAVE BEEN EXTRUDING AT IS 17 LARGE? 18 A. IT IS VERY, VERY LARGE. AND THE OTHER ISSUE THAT'S EVEN 19 MORE IMPORTANT IS THAT THERE'S A GOOD PROBABILITY THAT THE 20 ACTUAL TEMPERATURE OF THE MELT WAS SUBSTANTIALLY HIGHER THAN 21 WHAT THEY WERE MEASURING ON THE MACHINE. 22 Q. AND THAT'S BECAUSE THEY WEREN'T USING A MELT IMMERSION 23 PROBE? 24 A. THAT IS MY UNDERSTANDING. 25 Q. IS THERE ANY REASON BASED ON YOUR LONG EXPERIENCE IN THE 165 1 WORLD OF EXTRUSION WHY A FIBER MANUFACTURER LIKE MATTEX OR 2 TENCATE WOULD WANT TO USE THESE ELEVATED TEMPERATURES? 3 A. WELL, THERE IS A VERY COMMON REASON FOR THAT AND THAT IS 4 TO RUN THE MACHINE AT FASTER RATE TO ACHIEVE HIGHER OUTPUT. 5 Q. AND IN YOUR EXPERIENCE, DID THAT HIGHER OUTPUT WITH THAT 6 HAVE AN AFFECT ON THE BOTTOM WINE OF THE AMOUNT OF MONEY THAT 7 THEY WOULD MAKE IN EXTRUDING OR SELLING A FIBER? 8 A. YES. IT HAS A DIRECT AFFECT ON THE MANUFACTURING COST. 9 SO IT CERTAINLY HAS A DIRECT EFFECT ON THE PROFITABILITY OF THE 10 PLANT, YES. 11 Q. NOW, IN YOUR EXPERT OPINION, WHAT I AM ENACT, IF ANY, DID 12 THESE ELEVATED TEMPERATURES HAVE ON THE QUALITY OF THE FIBER 13 THAT MATTEX AND TENCATE WERE SELLING TO FIELDTURF? 14 A. WELL, ANYTIME THAT YOU RUN AT HIGHER TEMPERATURES YOU HAVE 15 AN INCREASING RISK OF DEGRADATION OR BASICALLY YOU WILL GET 16 MORE SEVERE DEGRADATION IN THE PRODUCT. 17 Q. AND I BELIEVE YOU SAID EARLIER THAT THAT TYPE OF 18 DEGRADATION, THAT CAN IMPACT THE UV STABILITY OF THE PRODUCT? 19 A. YES, IT CAN. 20 Q. NOW, TURNING TO MATTEX AND TENCATE'S QUALITY CONTROL 21 TESTING, DID YOU OBSERVE INFORMATION ON THAT IN THE PRODUCTION 22 REPORTS YOU REVIEWED? 23 A. I NOTICED THAT IN NUMEROUS INSTANCES THAT THE VALUE FOR 24 SHRINKAGE THAT WAS MEASURED WAS HIGHER THAN THE INTERNAL 25 SPECIFICATION. 166 1 Q. AND BASED ON THE DATA YOU REVIEWED, CAN YOU TELL -- CAN 2 YOU TELL US, YOU KNOW WHAT TYPES OF QUALITY CONTROL TESTING 3 THEY WERE DOING? 4 A. THE MEASUREMENTS THAT WERE LISTED, DATA THAT WAS LISTED 5 WAS TENACITY, ELONGATION AND SHRINKAGE. 6 Q. AND WHAT IS THE PURPOSE OF THIS TYPE OF QUALITY CONTROL 7 TESTING? 8 A. THE PURPOSE IS TO MAKE SURE THAT YOUR PRODUCT MEETS THE 9 SPECIFICATIONS. 10 Q. NOW WHAT DID YOU YOUR REVIEW OF THESE QUALITY CONTROL 11 REPORTS SHOW? 12 A. THAT IN THE CASE OF SHRINKAGE THAT MANY OF THE 13 MEASUREMENTS ARE ACTUALLY OUTSIDE THE SPECIFICATIONS. 14 Q. DOES THAT MEAN THAT THEY FAILED THEIR OWN QUALITY CONTROL 15 TESTING? 16 A. THAT'S EXACTLY WHAT THAT MEANS. 17 Q. AND YOU ALSO SAID THAT YOU REVIEWED AN AUDIT THAT MATTEX 18 DID; IS THAT RIGHT? 19 A. THAT IS CORRECT. 20 Q. AND COULD YOU TELL US WHAT THAT AUDIT SHOWED. 21 A. THE AUDIT SHOWED THAT IN MANY INSTANCES THAT NONCONFORMING 22 PRODUCT WAS PRODUCED AND THAT THERE HAD BEEN RECENTLY A 23 SIGNIFICANT SPIKE IN THESE INCIDENTS OF NONCONFORMING PRODUCT, 24 NONCONFORMING MEANING NOT MEETING SPECIFICATIONS. 25 Q. AND DID THIS AUDIT SHOW WHAT MATTEX DID WITH THE FIBER 167 1 THAT DID NOT MEET ITS OWN INTERNAL QUALITY CONTROL TESTING? 2 A. WHAT THE REPORTS SHOWED WAS THAT THE NONCONFORMING PRODUCT 3 WAS COMBINED WITH CONFORMING PRODUCT AND SOLD AS REGULAR 4 PRODUCT. 5 Q. SO MATTEX TOOK THE NONCONFORMING FIBER, THE ONES THAT 6 FAILED THEIR OWN QUALITY CONTROL TESTING AND MIXED IT WITH GOOD 7 FIBER AND THEN SOLD IT? 8 A. THIS IS WHAT THE REPORT SAYS. SO I'M SURE THIS IS EXACTLY 9 WHAT HAPPENED, YES. 10 Q. NOW, CAN YOU TELL US BASED ON YOUR LONG EXPERIENCE IN 11 EXTRUSION IS THAT SOMETHING THAT'S TYPICALLY DONE BY PLASTICS 12 MANUFACTURERS? 13 A. NO. THIS IS -- IN MY VIEW IS HIGHLY INAPPROPRIATE. OF 14 COURSE, IT HAPPENS THAT THE COMPANY MAY MAKE A PRODUCT THAT 15 DOESN'T MEET SPECIFICATIONS. AND THEN IF THEY SELL IT THEN 16 THEY WILL TELL THE CUSTOMER THIS IS A BELOW SPEC PRODUCT, OUT 17 OF SPEC PRODUCT; AND THEY WILL SELL IT AT THE LOWER PRICE. BUT 18 IF THEY TRY TO SELL IT AS A GOOD PRODUCT, IN MY VIEW THAT IS 19 NOT AT ALL APPROPRIATE. 20 Q. NOW, BASED ON YOUR REVIEW OF THIS QUALITY CONTROL TESTING 21 THIS AUDIT DID YOU REACH ANY EXPERT OPINIONS ABOUT THE LEVEL OF 22 QUALITY CONTROL AT MATTEX AND TENCATE? 23 A. WELL, THE INFORMATION I HAVE SEEN CERTAINLY INDICATES THAT 24 THEY DID NOT TAKE QUALITY CONTROL VERY SERIOUS THAT THEY WERE 25 NOT VERY CONCERNED ABOUT HAVING MEASUREMENTS THAT WERE OUT OF 168 1 SPECIFICATIONS. 2 Q. NOW, BASED ON THE MATERIAL YOU REVIEWED, COULD YOU TELL 3 WHO WAS IN CHARGE OF THE PLANT IN DUBAI THAT WAS MAKING THIS 4 FIBER THAT WAS SOLD TO FIELDTURF? 5 A. WELL, THE PERSON THAT WAS IN CHARGE OF EXTRUSION IS A 6 GENTLEMAN CALLED MARIO MUEHLE. 7 Q. NOW, BASED ON YOUR EXPERIENCE AND KNOWLEDGE IN THE WORLD 8 OF EXTRUSION, DID YOU REACH ANY OPINIONS AS TO HIS LEVEL OF 9 TECHNICAL EXPERTISE? 10 A. WELL, FROM THE DATA THAT I HAVE SEEN, I WOULD HAVE TO FORM 11 AN OPINION THAT MR. MUEHLE IS QUITE INCOMPETENT IN EXTRUSION 12 AND ALSO IRRESPONSIBLE IN HOW THE EXTRUSION WAS PERFORMED. 13 Q. AND WHY DOES THAT ABOUT HIM? 14 A. BECAUSE BASICALLY WHAT WAS DONE IN DUBAI DURING THE 15 EXTRUSION PROCESS GOES AGAINST THE BASIC PRINCIPLES OF 16 EXTRUSION 101. AND SO IN MY VIEW THERE IS NO EXECUTION FOR ANY 17 PERSON WITH REASONABLE KNOWLEDGE OF EXTRUSION TO RUN AN 18 OPERATION LIKE WAS DONE AT DUBAI. 19 Q. NOW, ARE YOU FAMILIAR WITH A UV TESTING, DR. RAUWENDAAL? 20 A. YES, I AM. 21 Q. NOW, DID YOU REVIEW THE UV TESTING THAT MATTEX ASKED A 22 COMPANY CALLED BASF TO DO IN 2004 AND 2005? 23 A. YES, I REVIEWED THIS INFORMATION. 24 Q. AND DOES THAT SHOW IN YOUR OPINION THAT EVOLUTION FIBER 25 HAS ADEQUATE OR GOOD UV STABILITY? 169 1 A. WHAT THE REPORT SHOWED IS THAT THE SAMPLES THAT WERE 2 TESTED HAD REASONABLE UV STABILITY. 3 Q. DID THE REPORT SHOW HOW THE SAMPLES WERE MADE OR WHAT 4 SAMPLES WERE ACTUALLY TESTED? 5 A. I DON'T HAVE ANY INFORMATION ON THE DETAILS ON EXACTLY HOW 6 THE SAMPLES WERE PREPARED OR PRODUCED. 7 Q. NOW, DID YOU REVIEW ANY INFORMATION WHICH SUGGESTS TO YOU 8 THAT MATTEX MADE CHANGES TO ITS EXTRUSION PROCESS AFTER THE 9 TESTING BY BASF WAS STARTED IN 2004? 10 A. YES. THEY AT SOME POINT MADE A SIGNIFICANT INCREASE IN 11 THE OUTPUT OF THE EXTRUSION LINES. 12 Q. NOW, AS A GENERAL MATTER, DO HIGH QUALITY MANUFACTURERS OF 13 PLASTICS DO ADDITIONAL TESTING WHEN THEY MAKE A CHANGE LIKE 14 THAT? 15 A. IF YOU MAKE A SIGNIFICANT CHANGE, YOU WOULD WANT TO TEST 16 THE PRODUCT AGAIN TO MAKE SURE THAT YOU ARE STILL MAKING A GOOD 17 PRODUCT BECAUSE IF YOU DO SIGNIFICANT INCREASE IN LINE SPEED OR 18 SCREW SPEED YOU WILL CHANGE THE PRODUCT. AND SO YOU WANT TO 19 MAKE SURE THAT THE PRODUCT YOU PRODUCE ON THE HIGHER OUTPUT 20 CONDITIONS IS STILL A GOOD PRODUCT AND STILL MEETS 21 SPECIFICATIONS. 22 Q. DO YOU BELIEVE THAT MATTEX AND TENCATE SHOULD HAVE DONE 23 ADDITIONAL UV TESTING AFTER THE BASF REPORT WAS DONE? 24 A. I HAVE NO EVIDENCE ON THAT. 25 Q. DO YOU BELIEVE THEY SHOULD HAVE? 170 1 A. I THINK THEY SHOULD HAVE DONE IT, BUT I HAVE SEEN NO 2 INDICATION THAT THEY DID THAT ADDITIONAL TESTING. 3 Q. NOW, ARE YOU FAMILIAR WITH A UV STABILIZER, WHAT 4 MR. PENDER REFERRED TO EARLIER AS A SUNSCREEN? ARE YOU 5 FAMILIAR WITH ONE CALLED UVINUL 5050 H? 6 A. YES, I'M FAMILIAR WITH THAT MATERIAL. THAT WAS THE 7 STABILIZER THAT WAS USED IN THE DUBAI FACILITY. 8 Q. CAN YOU TELL THE JURY WHAT FORMS UVINUL 5050 H COMES IN? 9 A. YOU CAN BUY IT IN PELLET FORM BASICALLY AS A CONCENTRATE 10 AND THEN YOU CAN ADD IT TO THE MAINSTREAM OF POLYMER GOING INTO 11 THE EXTRUDER. SO YOU CAN -- IF YOU WANT TO, YOU CAN ADD THE 12 LEVEL OF STABILIZER IN THE EXTRUDED PRODUCT. 13 Q. SO BASF SELLS THAT UV STABILIZER SEPARATE AS THEIR OWN 14 PRODUCT? 15 MR. CREMER: OBJECTION, YOUR HONOR. THIS IS BEYOND 16 THE SCOPE OF HIS EXPERT REPORT. 17 THE COURT: OVERRULED FOR NOW. 18 THE WITNESS: YES, YOU CAN BUY THAT. 19 BY MR. SKIBELL: 20 Q. NOW, YOU WERE HERE AND HEARD DR. DANIELS' TESTIMONY IN 21 THIS CASE, DIDN'T YOU, DR. RAUWENDAAL? 22 A. I WAS HERE, YES. 23 Q. DID YOU HEAR THE TESTIMONY ABOUT THE 50,000 PPMS OF HALS 24 THAT WAS IN THIS ONE PARTICULAR SAMPLE? 25 A. I HEARD THAT, YES. 171 1 Q. NOW, BASED ON YOUR REVIEW OF THE EXTRUSION CONDITIONS USED 2 BY MATTEX AND YOUR KNOWLEDGE OF EXTRUSION, WOULD IT HAVE BEEN 3 POSSIBLE TO PRODUCE A SAMPLE WITH 50,000 PPMS OF UV STABILIZER? 4 MR. CREMER: OBJECTION. CALLS FOR SPECULATION. 5 THE COURT: OVERRULED. 6 MR. SKIBELL: HE IS THE WORLD'S FOREMOST EXPERT IN 7 EXTRUSION -- 8 THE COURT: ALL RIGHT. ADDRESS YOUR COMMENTS TO ME, 9 NOT TO EACH OTHER. OVERRULED. 10 THE WITNESS: YES, IT WOULD BE QUITE EASY. AT THE 11 DUBAI FACILITY, THE EXTRUSION PROCESS IS SET UP SO THAT SEVERAL 12 STREAMS CAN BE ADDED TO THE EXTRUDER. SO IT WOULD BE VERY, 13 VERY EASY TO ADD A CONCENTRATE OF THE STABILIZER AND INCREASE 14 THE LEVEL OF STABILIZER IN THE PRODUCT. 15 MR. CREMER: OBJECT AND MOVE TO STRIKE. BEYOND THE 16 SCOPE OF HIS EXPERT REPORT. 17 THE COURT: WHAT DO YOU SAY, MR. SKIBELL? 18 MR. SKIBELL: THIS IS DIRECTLY RELEVANT TO HIS EXPERT 19 REPORT. IT'S ALL ABOUT EXTRUSION. AND HE SPECIFICALLY 20 TESTIFIED ABOUT THE BASF REPORT. THIS GOES DIRECTLY TO THAT. 21 THE COURT: OVERRULED FOR NOW. 22 BY MR. SKIBELL: 23 Q. DR. RAUWENDAAL, YOU CAN ANSWER THE QUESTION. 24 A. CAN YOU ASK THE QUESTION, PLEASE? 25 Q. SO AS A TECHNICAL MATTER, WOULD IT HAVE BEEN POSSIBLE FOR 172 1 MATTEX TO PRODUCE A FIBER WITH 50,000 PARTS PER MILLION OF UV 2 STABILIZER? 3 A. IT WOULD HAVE BEEN VERY EASY TO DO THAT, YES. 4 Q. NOW, IN YOUR OPINION, IF THEY HAD DONE THAT, HOW WOULD 5 THAT SAMPLE HAVE PERFORMED IN UV TESTING? 6 A. IT WOULD HAVE PERFORMED SUBSTANTIALLY BETTER THAN IN UV 7 TESTING. 8 MR. CREMER: OBJECT TO THIS LINE OF QUESTIONING, YOUR 9 HONOR. 10 THE COURT: OVERRULED. 11 BY MR. SKIBELL: 12 Q. I'M NOT SURE THE JURY COULD HEAR SINCE MR. CREMER WAS 13 OBJECTING? 14 A. IF YOU HAD A GREATER AMOUNT OF STABILIZER, UV STABILIZER 15 TO THE PRODUCT THEN CLEARLY IT'S GOING TO BEHAVE BETTER IN UV 16 TESTING, YES. 17 Q. NOW HAVE YOU PERSONALLY INSPECTED ANY EVOLUTION FIELDS, 18 DR. RAUWENDAAL? 19 A. NO, I HAVE NOT. 20 Q. DO YOU HAVE A GENERAL UNDERSTANDING OF WHAT'S OCCURRING ON 21 EVOLUTION FIELDS? 22 A. AFTER SEEING MANY PICTURES OF THE FIELDS, I HAVE A 23 REASONABLE IDEA OF WHAT'S HAPPENED, YES. 24 Q. AND DO YOU HAVE AN OPINION IN THIS CASE AS TO WHAT IS 25 CAUSING EVOLUTION FIELDS TO FAIL? 173 1 MR. CREMER: OBJECTION, YOUR HONOR. BEYOND THE SCOPE 2 OF HIS REPORT. HE DIDN'T REVIEW ANY PHOTOGRAPHS. 3 THE COURT: LET ME SEE THE REPORT, MR. SKIBELL. 4 MR. SKIBELL: I DON'T HAVE THE REPORT HERE BUT -- 5 MR. CREMER: I HAVE IT, YOUR HONOR. 6 MR. SKIBELL: BUT HE WAS SITTING IN -- 7 THE COURT: STOP TALKING, MR. SKIBELL. 8 MR. SKIBELL: SORRY. 9 THE COURT: LET ME SEE IT, MR. CREMER. 10 MR. SKIBELL: YOUR HONOR, IF IT WOULD BE HELPFUL, I 11 CAN POINT TO THE PART OF THE REPORT THAT WOULD BE RELEVANT TO 12 DR. RAUWENDAAL'S TESTIMONY. 13 THE COURT: THAT WOULD BE HELPFUL, MR. SKIBELL. 14 MR. SKIBELL: OKAY. IN THE CONCLUSION SECTION OF 15 BOTH REPORTS HE REACHES A CONCLUSION AS TO WHAT IS CAUSING 16 EVOLUTION FIELDS TO FAIL. HIS REPORT IS VERY SHORT, SO IT'S AT 17 THE BEGINNING OF THAT DOCUMENT. IT'S CALLED CONCLUSIONS. 18 (THE COURT REVIEWED THE DOCUMENT.) 19 THE COURT: ALL RIGHT. YOUR OBJECTION IS OVERRULED, 20 MR. CREMER. 21 GO AHEAD, MR. SKIBELL. 22 BY MR. SKIBELL: 23 Q. SO, DR. RAUWENDAAL, DO YOU HAVE AN OPINION IN THIS CASE AS 24 TO WHY EVOLUTION FIELDS ARE FAILING? 25 A. WELL, MY OPINION IS THAT THE EXTRUSION PROCESS WAS 174 1 CONDUCTED IN A WAY THAT VERY LIKELY SIGNIFICANT DEGRADATION 2 OCCURRED IN THE PRODUCT AND AS WE SAW IT WOULD REDUCE THE UV 3 STABILITY OF THE PRODUCT AND IT WOULD CAUSE IT TO FAIL AT AN 4 EARLIER TIME. 5 Q. HOW CONFIDENT ARE YOU IN THAT OPINION, DR. RAUWENDAAL? 6 A. I'M VERY CONFIDENT IN THAT OPINION. 7 MR. SKIBELL: I HAVE NO FURTHER QUESTIONS, YOUR 8 HONOR. 9 THE COURT: CROSS-EXAMINATION, MR. CREMER. 10 MR. CREMER: THANK YOU, JUDGE. 11 - - - 12 CROSS-EXAMINATION 13 BY MR. CREMER: 14 Q. MR. RAUWENDAAL, I'VE GOT YOUR REPORTS IN FRONT OF ME THAT 15 YOU PREPARED. AND I LOOKED THROUGH THE ITEMS THAT YOU HAVE 16 LISTED THAT YOU REVIEWED WHEN YOU PREPARED THESE REPORTS AND I 17 DIDN'T SEE A SINGLE REFERENCE TO A PHOTOGRAPH. WHEN YOU 18 PREPARED YOUR REPORTS YOU NEVER SAW A SINGLE PHOTOGRAPH OF THE 19 FIELD, DID YOU, SIR? 20 A. NO, I DID NOT. 21 Q. AND YOU NEVER EXAMINED A SINGLE PIECE OF PHYSICAL EVIDENCE 22 IN THIS CASE WHEN YOU PREPARED THE REPORTS, DID YOU, SIR? 23 A. I DIDN'T HAVE TO. 24 Q. DID YOU -- PLEASE TELL THE JURY IF YOU ACTUALLY EXAMINED A 25 SINGLE PIECE OF EVIDENCE? 175 1 A. I WAS ASKED TO EXAMINE THE EXTRUSION PROCESS. 2 Q. I UNDERSTAND. 3 A. AND THIS IS WHAT I DID. 4 Q. I UNDERSTAND. 5 A. OKAY. 6 Q. AND IN DOING THAT, YOU NEVER LOOKED AT A SINGLE PIECE OF 7 PHYSICAL EVIDENCE LIKE A PIECE OF FIBER, DID YOU? 8 A. NO, I DID NOT EXAMINE ANY FIBER. 9 Q. AND YOU KNOW THAT FIELDTURF KEEPS RETAIN SAMPLES THAT WERE 10 PRODUCED BY MY CLIENT? YOU KNOW THAT, DON'T YOU, SIR? 11 A. NO, I DON'T. 12 Q. OH YOU DIDN'T KNOW THAT? 13 A. THIS IS NOT SOMETHING I LOOKED INTO. I LOOKED AT THE 14 EXTRUSION CONDITIONS AND SO MY SCOPE WAS RELATIVELY NARROW AND 15 THIS IS EXACTLY WHAT I DID. 16 Q. SO YOU DIDN'T KNOW THAT YOU COULD HAVE ACTUALLY GOTTEN 17 PHYSICAL SAMPLES OF THE FIBERS YOU ARE CLAIMING WERE NOT 18 PROPERLY EXTRUDED AND TESTED THEM AND RATHER THAN TALK ABOUT IT 19 ACADEMICALLY HERE YOU COULD HAVE PROVEN YOUR POINT, COULDN'T 20 YOU? 21 A. I COULD HAVE DONE ANOTHER 50,000 THINGS. BUT I DID WHAT I 22 WAS ASKED TO DO AND I THINK I DID IT WELL. 23 Q. SO THEY ASKED TO YOU LOOK AT IT FROM AN ACADEMIC 24 PERSPECTIVE AND DON'T DO ANY TESTING? YOU WERE DIRECT TODAY DO 25 THAT? 176 1 A. I WAS NOT ASKED TO LOOK AT FROM AN ACADEMIC PERSPECTIVE 2 BECAUSE I AM NOT AN ACADEMIC I AM A PERSON WHO HAS WORKED IN 3 THE INDUSTRY FOR 41 YEARS. I SOLVE REAL EXTRUSION PROBLEMS 4 THAT IS MY JOB. 5 Q. WERE YOU DIRECTED BY COUNSEL FOR FIELDTURF NOT TO TEST 6 RETAIN FIBERS TO SEE IF ANY OF THE OPINIONS YOU HAVE ARE 7 PROVABLE? 8 A. THIS WAS OUTSIDE THE SCOPE OF MY TASK. 9 Q. NOW, YOU DON'T HAVE ANY EXPERIENCE IN THE EXTRUSION OF 10 POLYETHYLENE FIBER FOR THE USE AT ATHLETE PARTICULAR FIELDS 11 THAT'S A TRUE STATEMENT, ISN'T IT? 12 A. I HAVE SIGNIFICANT EXPERIENCE IN THE EXTRUSION OF FIBERS, 13 POLYETHYLENE FIBERS, POLYPROPYLENE FIBERS, NYLON FIBERS, 14 POLYESTER FIBERS. THE ONE THING I DO NOT HAVE EXPERIENCE IN IS 15 FIBERS THAT ARE USED IN A PRODUCTION OF ARTIFICIAL GRASS. BUT 16 YOU HAVE TO REALIZE THIS IS A VERY, VERY TINY PORTION OF THE 17 PLASTIC EXTRUSION INDUSTRY. IT'S ACTUALLY VERY, VERY SMALL 18 COMPARED TO MANY OTHER SIZE PARTS OF THE INDUSTRY. 19 Q. I ASKED A VERY SIMPLE QUESTION AND I'D LIKE A DIRECT 20 ANSWER TO MY SIMPLE QUESTION. YOU SIR, HAVE NO EXPERIENCE IN 21 THE EXTRUSION OF POLYETHYLENE FIBER FOR THE USE IN ATHLETIC 22 FIELDS, CORRECT? 23 A. THAT IS CORRECT. 24 Q. THANK YOU. 25 A. YOU'RE WELCOME. 177 1 Q. AND YOU ARE NOT AN EXPERT IN THE MANUFACTURE OR OF 2 ARTIFICIAL TURF FIBER, ARE YOU? 3 A. I'M AN EXTRUSION EXPERT. I KNOW HOW EXTRUSION IS DONE. I 4 KNOW HOW FILAMENTS ARE EXTRUDED. WHAT HAPPENS AFTER THE FILL. 5 IS MADE BY EXTRUSION THAT IS OUTSIDE OF MY AREA OF EXPERTISE. 6 Q. SO ARE YOU HOLDING YOURSELF OUT HERE TODAY AS AN EXPERT IN 7 ARTIFICIAL TURF FIBER? 8 A. NO, I'M NOT AN EXPERT IN ARTIFICIAL TURF FIBER. 9 Q. THANK YOU, SIR? 10 A. I'M AN EXPERT IN HOW FIBERS ARE EXTRUDED. 11 Q. AND YOU HAVE ZERO PROFESSIONAL EXPERIENCE IN THE DESIGN OF 12 ARTIFICIAL TURF FIELDS, DO YOU? 13 A. I DO NOT DESIGN ARTIFICIAL TURF FIELDS, NO. 14 Q. AND YOU HAVE NEVER BEEN INVOLVED IN DRAFTING OR DEVELOPING 15 OF ANY INDUSTRY STANDARDS THAT PERTAIN TO THE DESIGN, 16 DEVELOPMENT OR MANUFACTURE OF ARTIFICIAL TURF FIBERS, ISN'T 17 THAT CORRECT? 18 A. NO. I HAVE NOT BEEN INVOLVED IN THAT. 19 Q. AND WHEN YOU GAVE YOUR OPINIONS YOU DIDN'T TEST A SINGLE 20 FIELD INVOLVED IN THIS LITIGATION, DID YOU, SIR? 21 A. NO, I DID NOT. 22 Q. YOU DIDN'T LOOK BEFORE GIVING THESE OPINIONS BEFORE YOU 23 WALKED INTO THIS COURTROOM WHEN YOU GAVE YOUR DEPOSITION AND 24 ENTERED YOUR REPORTS YOU DIDN'T LOOK AT A SINGLE PHOTOGRAPH OF 25 A FAILED FIELD, DID YOU, SIR? 178 1 A. NO. THAT THAT WASN'T NECESSARY. 2 Q. YOU DIDN'T INSPECT THE EXTRUSION EQUIPMENT THAT YOU'RE 3 CRITICAL OF HERE TODAY AT MY CLIENT'S FACILITY IN DUBAI, DID 4 YOU? 5 A. I WOULD HAVE LOVED TO HAD A CHANCE TO DO THAT. 6 Q. DID YOU ASK TO DO THAT? 7 A. YES, I ASKED TO DO THAT AND -- 8 Q. AND WHAT DID INJURE CLIENT -- WHAT DID FIELDTURF TELL YOU, 9 NO? 10 A. THAT'S EXACTLY WHAT HAPPENED. THERE'S A LOT OF 11 INFORMATION THAT I WOULD HAVE LOVED TO HAVE HAD TO -- YOU KNOW, 12 TO HAVE EVEN FIRMER OPINION. 13 Q. SO YOU WERE PREVENTED FROM DOING WORK YOU THOUGHT WAS 14 IMPORTANT TO FORMULATE YOUR OPINION BY GOING AND INSPECTING THE 15 EQUIPMENT THAT YOU WERE GOING TO GIVE OPINIONS ON, TRUE? 16 A. I'M IN THE SURE I WAS PREVENTED BUT I WOULD HAVE VERY MUCH 17 BEEN VERY INTERESTED IN SEEING THE ACTUAL MANUFACTURING 18 FACILITY AND KNOW EXACTLY WHAT WAS GOING ON AND HOW THINGS WERE 19 DONE, YES. 20 Q. AND YOU ASKED TO DO THAT, AND YOU WERE TOLD BY FIELDTURF 21 NO, YOU'RE NOT GOING TO DO, THAT CORRECT? 22 MR. SKIBELL: OBJECTION, LACKS FOUNDATION THERE WAS 23 NO OPPORTUNITY TO DO THAT. 24 THE COURT: OVERRULED. 25 BY MR. CREMER: 179 1 Q. YOU HAVE NO INFORMATION OR -- STRIKE THAT. YOU DIDN'T 2 REVIEW ANY MANUALS RELATING TO THE MACHINERY MY CLIENT WAS 3 OPERATING TO EXTRUDES FIBER, DID YOU? 4 A. THE QUESTION IS DID I REVIEW ANY MANUALS? 5 Q. YES. 6 A. ON THE MACHINERY? 7 Q. YES. 8 A. REIMOTEC MACHINERY? 9 Q. YES. 10 A. I MAY HAVE LOOKED AT SOME OF THAT. I HAVE LOOKED AT 11 HUNDREDS AND HUNDREDS OF DOCUMENTS. SO I CANNOT BE ABSOLUTELY 12 SURE THAT I LOOKED AT THAT OR DID NOT LOOK AT THAT. IT'S 13 CERTAINLY POSSIBLE I DID. 14 Q. WELL, LET'S SEE WHAT YOU SAID IN YOUR DEPOSITION. 15 WELL, LET ME JUST DO THIS BECAUSE I DON'T WANT TO WASTE 16 TIME LOOKING FOR IT. LET ME GIVE YOU YOUR REPORT. 17 A. OKAY. 18 Q. AIM' SORRY I DON'T HAVE ANOTHER COPY BUT I WILL REFER TO 19 YOUR REPORT WHICH WE HAVE MARKED AS DEFENDANTS'S EXHIBIT -- 20 EXCUSE ME IT'S PLAINTIFF'S TRIAL EXHIBIT 10041 AND ON THE FACE 21 PAGE OF THAT REPORT YOU LIST -- OH, THANK YOU -- YOU LIST ALL 22 OF THE DOCUMENTS THAT YOU REVIEWED IN PREPARATION FOR YOUR 23 OPINION, DIDN'T YOU? 24 A. YEAH. BUT YOU ARE ASKING ME THE QUESTION TODAY AND TODAY 25 IS ABOUT TWO YEARS AFTER WE DID THE DEPOSITION. 180 1 Q. ALL RIGHT. I DON'T WANT TO KNOW ANYTHING YOU DID BEFORE 2 YOU FORMED YOUR OPINIONS. WHAT YOU DID SINCE THEN IS NOT 3 RELEVANT FOR ME SO PLEASE TELL ME WHEN YOU ISSUED YOUR INITIAL 4 OPINIONS IN THIS CASE ABOUT ISSUES RELATING TO THE EXTRUSION 5 DEFECTS BY MY CLIENT DID YOU HAVE AVAILABLE TO YOU AND REVIEW 6 THE MANUALS PERTAINING TO THAT MACHINERY? 7 A. AT THAT TIME IT'S NOT LISTED AS THE DOCUMENTS I REVIEWED. 8 SO AT THAT TIME I HAD NOT LOOKED AT THAT. 9 Q. AND I WOULD ASSUME, SIR, AS AN EXPERT AND A CONSULTANT WHO 10 HAS BEEN INVOLVED IN OTHER LITIGATED MATTERS IF YOU FELT 11 SOMETHING WAS IMPORTANT OR CRITICAL FOR YOU TO REVIEW IN ORDER 12 TO FORMULATE YOUR OPINIONS YOU WOULD HAVE GOTTEN THAT 13 INFORMATION IF IT WAS ALL POSSIBLE, WOULDN'T YOU? 14 A. I'M QUITE FAMILIAR WITH THE EQUIPMENT THAT REIMOTEC 15 PRODUCES. 16 Q. I ASKED A TOTALLY DIFFERENT QUESTION. I ASKED IF YOU FELT 17 IT WAS IMPORTANT TO GET CERTAIN DOCUMENTS OR INFORMATION IN 18 ORDER TO FORMULATE OPINIONS YOU WOULD HAVE ASKED FOR THAT OR 19 GOTTEN THAT, THOSE DOCUMENTS, TRUE? 20 A. I KNOW ENOUGH ABOUT EXTRUSION TO KNOW WHAT INFORMATION IS 21 RELEVANT AND WHAT IS NOT, AND I KNOW I HAVE WORKED WITH MANY, 22 MANY EXTRUDER MANUFACTURERS. I HAVE A PRETTY GOOD 23 UNDERSTANDING OF WHAT DIFFERENT EXTRUDER MANUFACTURERS WHAT 24 THEY PRODUCE AND HOW THE MACHINES BEHAVE. 25 Q. WELL, LET'S SEE HOW MUCH YOU KNOW ABOUT MY CLIENT'S 181 1 EQUIPMENT. 2 AT THE TIME OF YOUR DEPOSITION DID YOU HAVE ANY 3 INFORMATION ON THE SPECIFICATIONS OF THAT MACHINERY SUCH AS THE 4 LENGTH OF THE POLYMER MELT PAD? 5 A. THE LIFE OF THE POLYMER MELT PAD. 6 Q. THE LENGTH. THE LENGTH OF THE POLYMER MELT PAD. 7 A. I HAVE NO INFORMATION ON THAT READILY AVAILABLE, NO. 8 Q. DID YOU HAVE ANY INFORMATION AS TO THE DWELL TIME FOR MY 9 CLIENT'S EXTRUSION MACHINERY IN DUBAI AT THE TIME OF YOUR 10 DEPOSITION? 11 A. I DID NOT MAKE SPECIFIC MEASUREMENTS, BUT I CAN GIVE YOU 12 SOME PRETTY REASONABLE ESTIMATIONS OF THE DWELL TIMES IN THE 13 MACHINE. 14 Q. NO, SIR. I WANT -- I DON'T WANT ESTIMATION. I WANT TO 15 KNOW IF YOU KNOW WHAT IT IS. 16 A. THERE IS NOT ONE SINGLE DWELL TIME. THERE IS A RANGE OF 17 RESIDENCE TIMES, AND THIS CAN BE MEASURED. IT'S NOT EASY, BUT 18 IT CAN BE MEASURED. I HAVE NOT HAD THE OPPORTUNITY TO DO SO. 19 Q. WHEN YOU GAVE YOUR DEPOSITION AND AFTER YOU HAD FORMULATED 20 YOUR INITIAL OPINIONS, DID YOU KNOW THE PRODUCTION CAPACITY OF 21 THE EQUIPMENT OF MY CLIENT THAT WAS LOCATED IN DUBAI? 22 A. YEAH, I HAVE SEEN DATA ON THE PRODUCTION CAPACITY. 23 Q. I CAN'T FIND THE REFERENCE IN THE DEPOSITION. I'LL JUST 24 MOVE ON. 25 NOW, ARE YOU AWARE THAT IN THIS LITIGATION THAT THERE ARE 182 1 A NUMBER OF FIELDS THAT ARE BEING CLAIMED TO BE DEFECTIVE THAT 2 WERE PRODUCED BY OUR U.S. COMPANY IN DALTON, GEORGIA? 3 A. I HAVE NO INFORMATION ON WHERE THE FIBER WAS PRODUCED THAT 4 WENT TO THE DIFFERENT FIELDS. I HAVE NO INFORMATION ON THAT. 5 Q. WELL BUT YOU WERE ONLY LOOKING AT THE ISSUE OF EXTRUSION 6 IN DUBAI, TRUE? 7 A. I HAVE ONLY RECEIVED INFORMATION ON THE EXTRUSION PROCESS 8 IN DUBAI. 9 Q. SO AS YOU SIT HERE, SIR, YOU HAVE NO CRITICISM WHATSOEVER 10 OF ANY OF THE FIBER AS IT MAY HAVE BEEN PRODUCED AT MY CLIENT'S 11 PLANT IN THE UNITED STATES, DO YOU, SIR? 12 A. I HAVE NO INFORMATION ON HOW THE PROCESS WAS CONDUCTED IN 13 THE OTHER FACILITIES. SO I CANNOT REALLY COMMENT ON IT. IT 14 WOULD BE IRRESPONSIBLE TO DO SO. 15 Q. AND BY THE WAY, WHEN YOU MADE -- GAVE AN OPINION THAT 16 MARIO MUEHLE WAS INCOMPETENT, SHOW ME WHERE THAT IS IN YOUR 17 REPORT WHERE YOU GAVE THAT OPINION WHEN YOU REACHED YOUR 18 OPINIONS IN THIS CASE THAT MY CLIENT WAS INCOMPETENT TO OPERATE 19 THE PLANT. 20 A. I DIDN'T SAY HE WAS INCOMPETENT TO OPERATE. I SAID HE WAS 21 INCOMPETENT IN TERMS OF HIS EXTRUSION KNOW HOW. 22 Q. SHOW ME EXACTLY IN YOUR REPORT WHAT OPINION AND WHAT PAGE 23 NUMBER I CAN FIND THAT OPINION. PLEASE. 24 A. I DON'T REMEMBER EXACTLY WHAT -- THIS IS QUITE A LONG 25 DEPOSITION IT WAS MANY PAGES SO -- 183 1 Q. NO, I AM ASKING YOU TO PICK UP YOUR REPORT AND YOU SHOW ME 2 BY PAGE WHERE YOU SAY THAT BEFORE. 3 A. I'M IN THE SURE THAT WOULD BE A USEFUL EXERCISE. 4 Q. YOUR HONOR COULD I HAVE SOME ASSISTANCE, PLEASE? 5 THE COURT: DR. RAUWENDAAL, DID YOU PUT IN YOUR 6 REPORT AN OPINION THAT MR. MUEHLE WAS INCOMPETENT, YES OR NO? 7 THE WITNESS: I BELIEVE THAT THE QUESTION WAS ASKED 8 AND I BELIEVE -- 9 THE COURT: IN YOUR REPORT. 10 THE WITNESS: IN MY REPORT, I BELIEVE THE STATEMENT 11 THAT I MADE IS THAT I QUESTIONED HIS TECHNICAL LEVEL OF 12 COMPETENCE. 13 THE COURT: ALL RIGHT. WELL, TELL MR. CREMER WHICH 14 PAGE OF YOUR REPORT THAT STATEMENT IS CONTAINED IN. 15 THE WITNESS: I CAN LOOK IT UP. 16 AND WHAT I'M REFERRING TO ACTUALLY IS OUR DEPOSITION. 17 THE COURT: NO. HE IS ASKING YOU ABOUT YOUR REPORT. 18 THE WITNESS: I DON'T THINK THAT PARTICULAR ISSUE WAS 19 LISTED IN THE REPORT. 20 BY MR. CREMER: 21 Q. THANK YOU. YOU BROUGHT THAT UP FOR THE FIRST TIME TODAY 22 IN COURT, DIDN'T YOU, SIR? 23 A. NO. NO. THAT DISCUSSION WAS -- CAME UP ALMOST TWO YEARS 24 DURING THE DEPOSITION. 25 Q. IT MOST CERTAINLY DID NOT. 184 1 THE COURT: NO COMMENTS, MR. CREMER. 2 MR. CREMER: I APOLOGIZE, JUDGE. 3 BY MR. CREMER: 4 Q. NOW, WHAT YOU DID REVIEW IS PRETTY MUCH LISTED IN THE 5 FIRST PAGE OF YOUR REPORT WHICH IS PLAINTIFF'S EXHIBIT 1041; IS 6 THAT CORRECT? 7 A. THAT IS A COMPREHENSIVE LISTING, YES. 8 Q. OKAY. AND AS FAR AS THE DEPOSITIONS ARE LISTED THERE, 9 THERE ARE FOUR OF THEM. THOSE DEPOSITIONS THAT YOU REVIEWED 10 THOSE INDIVIDUALS WERE DECIDED BY FIELDTURF. THEY TOLD YOU WHO 11 YOU SHOULD LOOK AT? 12 A. I ASSUMED THAT THE LAWYERS REPRESENTING NTH KNEW WHAT 13 INFORMATION WAS RELEVANT TO THE CASE FOR ME -- 14 THE COURT: RAUWENDAAL THIS IS NOT A DEBATE BETWEEN 15 YOU AND THE LAWYER JUST LISTEN TO THE LAWYER'S QUESTION AND TRY 16 TO ANSWER IT CORRECTLY, PLEASE, SIR. 17 THE WITNESS: THE ANSWER IS YES, THE DEPOSITIONS THAT 18 I REVIEWED WERE RECOMMENDED, GIVEN TO ME BY THE LAWYERS 19 REPRESENTING FIELDTURF. 20 BY MR. CREMER: 21 Q. AND YOU NEVER REVIEWED ANY OF THE SUPPLY CONTRACTS BETWEEN 22 MY CLIENT AND FIELDTURF OR TARKETT, DID YOU? 23 A. NO. THIS WAS NOT IN THE SCOPE OF MY WORK. I'M NOT A 24 LAWYER. I'M A PROCESS ENGINEER. 25 Q. SO YOU DIDN'T REVIEW ANY OF THE WARRANTIES THAT WERE 185 1 CONTAINED IN THAT SUPPLY CONTRACT, CORRECT? 2 A. I HAVE NOT REVIEWED THE WARRANTIES, NO. 3 Q. SO YOU WOULD HAVE NO IDEA WHAT CONSTITUTES A FAILURE UNDER 4 THE TERMS OF THOSE WARRANTIES THAT ARE ISSUED IN THIS CASE, 5 CORRECT? 6 A. I'M NOT FAMILIAR WITH THE DETAILS OF THE WARRANTY. 7 Q. NOW, YOU UNDERSTAND THAT POLYETHYLENE, SPLITTING OF 8 POLYETHYLENE IS A COMMON OCCURRENCE, TRUE? 9 A. CAN YOU REPEAT THE QUESTION? 10 Q. YOU WOULD AGREE WITH ME THAT SPLITTING OF A POLYETHYLENE 11 PRODUCT IS A COMMON OCCURRENCE? 12 A. LINEAR POLYETHYLENE IS A COMMON OCCURRENCE? 13 Q. SPLITTING, WHERE IT CRACKS, SPLITS. 14 A. WELL, AS A GENERAL STATEMENT, I WOULD NOT NECESSARILY 15 AGREE WITH THAT. IN CERTAIN PRODUCTS THERE IS A CHANCE THAT 16 SPLITTING CAN HAPPEN, YES. 17 THE COURT: HOW MUCH LONGER YOU THINK YOU ARE GOING 18 TO BE ON THIS WITNESS, MR. CREMER? 19 MR. CREMER: 15, 20. 20 THE COURT: LADIES AND GENTLEMEN, LET'S TAKE A QUICK 21 TEN-MINUTE BREAK. DURING THE BREAK, REMEMBER MY INSTRUCTIONS 22 TO YOU NOT TO DISCUSS THE CASE WITH ANYONE, NOT TO ALLOW ANYONE 23 TO DISCUSS THE CASE IN YOUR PRESENCE. 24 COURT'S IN RECESS FOR TEN MINUTES. 25 (A SHORT RECESS WAS TAKEN.) 186 1 THE COURT: WE'RE READY FOR THE JURY. 2 (JURY ENTERED THE COURTROOM.) 3 THE COURT: ALL RIGHT, MR. CREMER. 4 MR. CREMER: THANK YOU, JUDGE. 5 BY MR. CREMER: 6 Q. MR. RAUWENDAAL, I THINK I WAS ASKING YOU A QUESTION 7 WHETHER OR NOT SPLITTING OF POLYETHYLENE FIBERS IS ACTUALLY -- 8 EXCUSE ME. ISN'T IT A FACT THAT SPLITTING POLYETHYLENE FIBER 9 IN ARTIFICIAL TURF APPLICATION SINCERELY IS ACTUALLY IS A 10 COMMON OCCURRENCE? 11 A. I DON'T KNOW HOW COMMON IT IS. BUT I KNOW IT DOES OCCUR. 12 Q. WHEN YOU WERE ASKED THIS QUESTION IN YOUR DEPOSITION, DID 13 YOU GIVE THIS ANSWER, PAGE 71, COUNSEL, LINES 13 THROUGH -- 14 THROUGH 18: ISN'T IT A FACT THAT SPLITTING OF PE FIBER IN 15 ARTIFICIAL TURF APPLICATIONS IS ACTUALLY A COMMON OCCURRENCE? 16 ANSWER: I UNDERSTAND IT IS A COMMON PROBLEM. 17 DID YOU GIVE THAT ANSWER UNDER OATH TO THAT QUESTION? 18 A. I SURE DID, YES. 19 Q. NOW, THE EXTRUSION, HIGH EXTRUSION TEMPERATURES ISN'T THE 20 ONLY WAY YOU CAN DEGRADE A FIBER, CORRECT? 21 A. THERE ARE NUMEROUS WAYS THAT YOU CAN DEGRADE A POLYMER, 22 YES. 23 Q. AND YOU WOULD AGREE THAT MECHANICAL STRESS OR WEAR CAN 24 DEGRADE A FIBER, WOULDN'T YOU? 25 A. IT IS ONE OF THE POSSIBLE MECHANISMS OF DEGRADATION. THAT 187 1 IS TRUE. 2 Q. AND YOU WOULD AGREE THAT EXCESSIVE USE CAN DEGRADE A 3 POLYMER, TRUE? 4 A. CAN YOU REPEAT THE QUESTION? 5 Q. YOU WOULD AGREE WITH ME, SIR, THAT EXCESSIVE USE OF A 6 POLYMER FIBER -- YOU WOULD AGREE WITH ME THAT EXCESSIVE USE CAN 7 DEGRADE A POLYMER FIBER? 8 A. THERE IS A POSSIBILITY THAT A SEVERE MECHANICAL ABUSE CAN 9 CAUSE SOME LEVEL OF DEGRADATION, YES. 10 Q. ALL RIGHT. DO YOU REMEMBER THIS QUESTION BEING ASKED IN 11 YOUR DEPOSITION AND GIVING THIS ANSWER BEING GIVEN UNDER OATH? 12 QUESTION, PAGE 100, COUNSEL, LINES 11 THROUGH 13: 13 HOW ABOUT EXCESSIVE USE, WILL THAT DEGRADE THE MATERIAL? 14 ANSWER: IT COULD. 15 DO YOU REMEMBER GIVING THAT ANSWER TO THAT QUESTION? 16 A. YES. AND I STAND BY THAT ANSWER. THE ISSUE HERE IS 17 REALLY THE LEVEL OF STRESSORS THAT ARE APPLIED TO THE PRODUCT. 18 Q. YOU DID NOT DO A FORENSIC EXAMINATION OF ANY, LET ALONE, 19 ALL OF THE 152 FIELDS THAT ARE BEING CLAIMED IN THIS MATTER TO 20 DETERMINE THE SPECIFIC CAUSE OF I ANY ALLEGED FIBER DEGRADATION 21 PRESENT ON ANY FIELD, SIR, DID YOU? 22 A. NO. AS I SAID BEFORE, MY TASK WAS TO LOOK AT THE 23 EXTRUSION PROCESS. 24 Q. SO THE CAUSE OF AN INDIVIDUAL FIELD THAT'S AT ISSUE IN 25 THIS LITIGATION YOU DON'T KNOW, DO YOU? 188 1 A. I CAN TELL YOU THAT THERE'S A GREAT DEGREE OF CERTAINTY 2 THAT THE WAY THE EXTRUSION PROCESS WAS PERFORMED THAT THERE WAS 3 SIGNIFICANT DEGRADATION OCCURRING IN THE EXTRUSION PROCESS THAT 4 CERTAINLY WOULD CONTRIBUTE TO THE EARLY FAILURE THAT WAS 5 OBSERVED. 6 Q. PAGE 99, COUNSEL, LINES 11 THROUGH 16. 7 QUESTION: HAVE YOU DONE A FORENSIC EXAMINATION OF EACH OF 8 THESE HUNDRED OR SO FIELDS TO DETERMINE AS TO THAT FIELD WHAT 9 WAS THE SPECIFIC CAUSE OF THE DEGRADATION PRESENT? 10 ANSWER: I HAVE NOT DONE THAT. 11 DO YOU REMEMBER THAT QUESTION BEING ANSWERED UNDER OATH? 12 A. I REMEMBER THAT AND I THINK IT WAS A GOOD ANSWER. 13 Q. NOW, YOU WERE TALKING ABOUT MY CLIENT'S OBLIGATION TO TEST 14 RAW MATERIALS IN YOUR REPORT. DO YOU RECALL THAT? 15 A. I RECALL THAT. 16 Q. AND YOU SAID WE SHOULD BE DOING A CERTAIN TEST -- WHAT DID 17 YOU SAY WE SHOULD DO? WE SHOULD HAVE MEASURED THE INDUCTION 18 TIME OF THE RESIN THAT WE RECEIVED FROM SABIC? 19 A. YES, THAT'S VERY GOOD PRACTICE TO DO SOME QUALITY CONTROL 20 ON THE INCOMING RAW MATERIAL TO MAKE SURE IT MEETS 21 SPECIFICATIONS. 22 Q. COULD YOU POINT US TO ANY INDUSTRY CUSTOM OR PRACTICE -- 23 STRIKE THAT. 24 CAN YOU POINT US TO ANY CODIFIED INDUSTRY REGULATION OR 25 STANDARD THAT REQUIRES MY CLIENT TO MEASURE INDUCTION TIME OF 189 1 INCOMING RAW MATERIALS? 2 A. I'M NOT SURE IT WAS ANY KIND OF DOCUMENT THAT WOULD 3 REQUIRE TENCATE TO DO THIS. BUT I CAN TELL YOU FROM MY 4 EXPERIENCE AND FROM THE LITERATURE THAT IT IS WELL-KNOWN THAT 5 IT'S A VERY GOOD PRACTICE TO HAVE Q C, QUALITY CONTROL ON YOUR 6 INCOMING RAW MATERIAL AND WORLD CLASS MANUFACTURERS DO EXACTLY 7 THAT. 8 Q. SO IN ANSWER TO MY QUESTION, YOU KNOW OF NO INDUSTRY 9 STANDARD THAT'S BEEN CODIFIED THAT REQUIRES SUCH A PRACTICE, 10 TRUE? 11 A. I DON'T BELIEVE THERE IS A STANDARD THAT REQUIRES 12 COMPANIES TO DO THIS. 13 Q. AND YOU HAVE NOT CONDUCTED AN INDUSTRY SURVEY TO SEE WHAT 14 OTHER SIMILARLY SITUATED MANUFACTURERS DO WITH RESPECT TO 15 MEASURING INDUCTION TIME, HAVE YOU, SIR, FOR THIS CASE? 16 A. WELL, I CAN TELL YOU I HAVE WORK WITH HUNDREDS OF 17 COMPANIES AND I CAN TELL YOU THAT A VERY LARGE PERCENT OF THOSE 18 COMPANIES PERFORM VERY GOOD INCOMING Q C, Q C ON INCOMING RAW 19 MATERIAL. 20 Q. I'M ASKING A VERY SPECIFIC QUESTION. DID YOU DO A SURVEY 21 THAT YOU HAVE DATA TO PRESENT TO THIS JURY ABOUT WHAT THE 22 INDUSTRY CUSS TOP AND PRACTICE IS? DO YOU HAVE THE DATA HERE, 23 SIR? 24 A. WELL, IF I TELL YOU THAT SAY I HAVE WORKED FOR 300 25 COMPANIES AND THAT MORE THAN 95 PERCENT OF THESE COMPANIES DO 190 1 THIS KIND OF TESTING I THINK YOU CAN CONSIDER THAT A SURVEY. 2 Q. PAGE 81, LINE 21 THROUGH 25 CONTINUING TO 82 LINES 1 AND 3 2. QUESTION: AND HAVE YOU DONE A SURVEY TO DETERMINE AN 4 INDUSTRY OF FIBER MANUFACTURERS THAT PRODUCE FIBER FOR THE 5 ARTIFICIAL TURF INDUSTRY WHETHER AT ANY TIME MEASURING 6 INDUCTION OF RAW MATERIALS WAS EVER DONE? ANSWER: I DON'T 7 TAKE SURVEYS. 8 WAS THAT THE ANSWER THAT YOU GAVE UNDER OATH, SIR? 9 A. THAT IS -- I STAND BY THAT ANSWER COMPLETELY. 10 Q. NOW, YOU'RE TALKING ABOUT IMMERSION MELT TEMPERATURES 11 PROBES. ARE YOU SUGGESTING THAT MY CLIENT DOESN'T HAVE SUCH 12 PROBES AT ITS EXTRUSION EQUIPMENT? 13 A. NO. I'M TELLING YOU THAT I HAVE NOT SEEN ANY DATA THAT 14 INDICATES THAT THEY ARE DOING THIS. 15 Q. WELL, YOU HAVEN'T SEEN THE EQUIPMENT EITHER, HAVE YOU? 16 A. I HAVE NOT, NO. 17 Q. MAYBE IF YOU WENT AND SAW THE EQUIPMENT WOULD YOU SEE THE 18 IMMERSION TEMPERATURE PROBES THAT EXIST ON THAT MACHINE. THAT 19 WOULD BE ONE POSSIBILITY, WOULDN'T IT, SIR? 20 A. AS I HAVE MENTIONED TO YOU BEFORE I WOULD LOVE TO SEE THE 21 EQUIPMENT. 22 Q. SO YOU ARE CRITICAL WITHOUT HAVING A FOUNDATION TO BE 23 CRITICAL 'CAUSE YOU DON'T KNOW THAT IN FACT MY CLIENTS HAVE 24 IMMERSION MELT TEMPERATURE PROBES ISN'T THAT RIGHT? 25 A. THEY MAY HAVE MELT PROBES MAY NOT. I SIMPLY DO NOT HAVE 191 1 THE INFORMATION TO KNOW FOR SURE. 2 Q. BUT YOU'RE HERE ON THE STAND IN A COURTROOM CRITICIZING MY 3 CLIENT FOR SOMETHING YOU DON'T KNOW; ISN'T THAT CORRECT? 4 A. NO. WHAT I'M CRITICIZING IS THAT I HAVE NOT SEEN DATA ON 5 MELT TEMPERATURE MEASUREMENT AND WE HAVE SPECIFICALLY ASKED FOR 6 THIS INFORMATION, HAVE NOT RECEIVED IT. 7 Q. I'LL BE BRIEF, YOUR HONOR. I'M SORRY. LET ME GO BACK TO 8 THIS EXHIBIT THAT YOU WERE SHOWN BY COUNSEL FOR FIELDTURF THAT 9 EXHIBIT 1056. IT'S THE ONE THAT DEALS WITH THE SABIC SPEC 10 SHEET? 11 A. THIS ONE? 12 Q. YEAH. 13 A. YES. 14 Q. CAN WE PUT THAT UP, PLEASE. IT'S PLAINTIFF'S 1056. 15 NOW, FIRST OF ALL, I'M GOING TO UNDERSTAND WHAT BLOWN FILM 16 IS. BLOWN FILM IS USED -- LET'S SAY YOU WANT TO MAKE A GARBAGE 17 BAG AND YOU ARE EXTRUDING PLASTIC TO MAKE A GARBAGE BAG AND YOU 18 NEED A CERTAIN VISCOSITY SO THAT THE BAG CAN BLOW UP, RIGHT? 19 A. THAT IS A VERY SIMPLISTIC WAY OF PUTTING IT. 20 Q. THAT IS MY NATURE. 21 A. YOU NEED TO HAVE A CERTAIN MOLECULAR ARCHITECTURE TO BE 22 ABLE TO DO A PROPER BLOWN FILM EXTRUSION PROCESS. SO IT'S NOT 23 REALLY AS SIMPLE AS JUST THE VISCOSITY. IT GOES WAY BEYOND 24 THAT. 25 Q. I KNOW IT DOES. I DIDN'T MEAN -- I AM JUST TRYING TO 192 1 FIGURE OUT WHEN THEY TALK ABOUT PROCESSING CONDITIONS I'M 2 ASSUMING YOU NEED A CERTAIN TEMPERATURE TO GET THIS MOLTEN 3 PLASTIC IN THE RIGHT TYPE OF VISCOSITY SO THAT IT WILL BLOW UP 4 AS OPPOSED TO SEPARATE OR DO OTHER THINGS? IS THAT WRONG? 5 A. WELL, THE TEMPERATURE RANGE THAT IS RECOMMENDED BASICALLY 6 ON THE LOWER END YOU DON'T WANT TO GO MUCH LOWER BECAUSE YOU 7 WILL NOT NECESSARILY COMPLETELY MELT THE MATERIAL. SO THAT 8 COULD BE THE BOTTOM LIMIT. THE UPPER LIMIT IS WHERE YOU START 9 GETTING INCREASING CHANCE OF DEGRADATION. 10 Q. IF YOU LOOK AT TYPICAL APPLICATION SECTION A LITTLE LOWER 11 ANTONIO RIGHT UP ABOVE THAT, PARAGRAPH ABOVE? 12 A. YES, I SEE IT. 13 Q. YES, THERE YOU GO. THANK YOU. 14 SO HERE WE ARE TALKING ABOUT WHAT THIS SPECIFICATION 15 APPLIES TO. AND IT TALKS ABOUT EXAMPLES LAMINATION FILM, THIN 16 LINERS, SHOPPING BAGS, CARRIER BAGS, GARBAGE BAGS, CO-EXTRUDED 17 FILMS, CONSUMER PACKAGING. 18 DO YOU SEE ANYTHING IN THERE ABOUT THIS APPLYING TO 19 ARTIFICIAL TURF FIBER? IS IT THERE, SIR? 20 A. IT'S NOT ON THE LIST BUT IT CERTAINLY SAYS ET CETERA. SO 21 IT CERTAINLY INDICATES IT'S NOT A COMPLETE LIST. 22 Q. I GOT YOU. 23 NOW, WERE YOU READING PROCESSING CONDITIONS AT THE VERY 24 BOTTOM DOES IT SAY IF YOU PROCESS ABOVE THESE TEMPERATURES THAT 25 THE FIBER OR THE MATERIAL IS GOING TO DEGRADE? DOES IT SAY 193 1 THAT ANYWHERE THERE? 2 A. IT DOESN'T STATE THAT. BUT IF YOU KNOW ANYTHING ABOUT 3 POLYMER EXTRUSION YOU WOULD KNOW THAT. 4 Q. BUT YOU'RE SUGGESTING THAT THIS IS A DIRECTION THAT TELLS 5 THE USER THAT IF YOU PROCESS ABOVE THESE TEMPERATURES THE 6 PRODUCT WILL DEGRADE. THAT'S WHAT YOU'RE SUGGESTING TO THIS 7 JURY UNDER OATH? 8 A. THERE IS -- IF YOU PROCESS AT TEMPERATURES ABOVE THESE 9 RECOMMENDATIONS YOU WILL HAVE AN INCREASING CHANCE OF 10 DEGRADATION AND THE HIGHER THE TEMPERATURE THE GREATER THE 11 CHANCE OF DEGRADATION. 12 Q. THAT'S A PROCESSING CONDITION, THAT ISN'T A WARNING. YOU 13 AGREE WITH ME, DON'T YOU? 14 A. I NEVER SAID IT WAS A WARNING. I JUST SAID THESE ARE 15 RECOMMENDED TEMPERATURES. 16 Q. AND SIR, IF YOU WANTED TO PROVE YOUR POINT, IF YOU WANTED 17 TO PROVE THAT MY CLIENT WAS INCOMPETENT AND IRRESPONSIBLE IN 18 THE WAY THIS THEY CONDUCTED THEIR EXTRUSION PRACTICE YOU COULD 19 HAVE GOTTEN THOSE SAMPLES AND YOU COULD HAVE COME IN HERE AND 20 YOU COULD HAVE CONDUCT TESTS AND YOU COULD HAVE PROVED IT AS 21 OPPOSED TO SPECULATE LIKE YOU'VE DONE, ISN'T THAT RIGHT? 22 A. I THINK THE FACTS ARE QUITE CLEAR. 23 Q. SO DO I. THANK YOU. NO FURTHER QUESTIONS. 24 THE COURT: REDIRECT, MR. SKIBELL? 25 MR. SKIBELL: JUST A FEW QUESTIONS, YOUR HONOR. 194 1 THE COURT: STRICTLY LIMITED TO THE SCOPE OF THE 2 CROSS. 3 MR. SKIBELL: YES. 4 BY MR. SKIBELL: 5 Q. NOW, DR. RAUWENDAAL, HOW MANY MATTEX AND TENCATE 6 PRODUCTION REPORTS DID YOU REVIEW IN FORMING YOUR OPINIONS IN 7 THIS CASE? 8 A. I REVIEWED ABOUT 1,400. 9 Q. AND DID THOSE REPORTS SHOW THE LINE SPEED THAT MATTEX USED 10 FOR EXAMPLE IN THE YEARS 2004, 2005, 2006? 11 A. THOSE REPORTS INDICATED THE LINE SPEEDS, YES. 12 Q. SO IF YOU WENT TO TENCATE'S DUBAI FACILITY IN 2012, WOULD 13 YOU HAVE BEEN ABLE TO DETERMINE ANYTHING ABOUT THE LINE SPEED 14 USED IN 2004, 2005? 15 A. THAT WOULD BE VERY HELPFUL FOR THAT PARTICULAR PURPOSE. 16 Q. BUT WOULD YOU HAVE BEEN ABLE TO KNOW WHAT THEY WERE DOING 17 BACK IN 2004 OR 2005 IF YOU SAW THE FACILITY IN 2012? 18 A. THE ONLY WAY I COULD VERIFY THAT IS BY THE DATA THAT WAS 19 PRODUCED. 20 Q. AND DID THE DATA YOU REVIEWED DID IT SHOW THE TEMPERATURES 21 THAT WERE USED BACK IN THE 2004, 2005, 2006 PERIOD? 22 A. YES, ALL THOSE REPORTS SHOWED THE EXTRUSION TEMPERATURES, 23 YES. 24 Q. SO IF YOU REVIEWED -- IF YOU WENT TO THE FACILITY IN 2012, 25 COULD YOU HAVE SEEN THE TEMPERATURES OR GOTTEN DATA ABOUT THE 195 1 TEMPERATURES BACK IN THE EARLIER PERIODS OF TIME? 2 A. NO. THE ONLY THING I WOULD BE ABLE TO OBSERVE IS THE 3 CURRENT CONDITIONS. 4 Q. NOW, DO YOU KNOW IF TENCATE WAS OPENING ITS DOORS TO YOU 5 TO GO AND VISIT THEIR DUBAI MANUFACTURING FACILITY? 6 A. SAY THAT AGAIN. 7 Q. DO YOU KNOW IF TENCATE WAS OPENING ITS DOORS OR ASKING YOU 8 TO GO REVIEW ITS? 9 MR. CREMER: YOUR HONOR, I WOULD OBJECT TO THE 10 SUGGESTION THAT WE PREVENTED HIM FROM ATTENDING. THERE WAS NO 11 SUCH REQUEST. 12 THE COURT: OVERRULED. GO AHEAD, MR. SKY BELL. 13 THE WITNESS: MY UNDERSTANDING WAS THAT THERE WAS NO 14 CHANCE OF ME GOING INTO THAT FACILITY. 15 MR. SKIBELL: I HAVE NO FURTHER QUESTIONS, 16 DR. RAUWENDAAL. 17 THE COURT: RECROSS, MR. CREMER? 18 MR. CREMER: NO, YOUR HONOR. THANK YOU. 19 THE COURT: ALL RIGHT. DR. RAUWENDAAL, YOU ARE 20 EXCUSED. 21 CALL YOUR NEXT WITNESS. 22 MR. KAPLAN: PLAINTIFFS CALL MARCO REEFMAN, PLANT 23 MANAGER IN DUBAI FIRST FOR MATTEX THEN FOR TENCATE BY VIDEO. 24 (VIDEOTAPED DEPOSITION PLAYED AS FOLLOWS.) 25 MR. SKIBELL: BEFORE WE START WE WOULD LIKE TO 196 1 STIPULATE ON THE RECORD THAT THE COURT REPORTER HAS THE POWER 2 TO SWEAR IN THE WITNESS. 3 MR. CREMER: SO STIPULATED. 4 (WITNESS PLACED UNDER OATH.) 5 Q. AND WHAT WAS YOUR FIRST POSITION THEN AT MATTEX? 6 A. WE WERE THREE PERSONS THERE TO START WITH, THAT IS MARIO 7 MUEHLE, JEROEN VAN BALEN AND MYSELF. MARIO WAS FOR R AND D 8 TECHNICAL ISSUES. JEROEN FOCUSED ON THE COMMERCIAL ISSUES, AND 9 TOGETHER WITH MARIO ON THE PRODUCT DEVELOPMENT FOR THE REST, 10 EVERYTHING THAT WAS LEFT WAS PICKED UP BY ME. SO I DID 11 EVERYTHING ANYTHING FROM BEING JEROEN'S SECRETARY TO SALES, 12 SMALLER CUSTOMERS, PURCHASING, PRODUCTION, LAB, FOLLOWING UP ON 13 THEIR CUSTOMER SERVICE. BASICALLY, I DID EVERYTHING ELSE. 14 Q. SO MR. REEFMAN, YOU HAVE BEEN HANDED ANOTHER DOCUMENT. 15 THIS IS REEFMAN -- THIS IS DOCUMENT 126. AND IT BEARS THE 16 BATES STAMP TENCATE 007015 YOU WILL SEE, MR. REEFMAN, THIS IS 17 YET ANOTHER DOCUMENT ABOUT INCREASING THE LINE SPEED FOR THE 18 REIMOTEC EXTRUDERS? 19 A. YES. 20 Q. DO YOU SEE THAT? 21 A. YES. 22 Q. AND YOU SEE THIS IS AN E-MAIL CORRESPONDENCE BETWEEN YOU 23 AND MR. VAN BALEN ABOUT THIS ISSUE? 24 A. YES. 25 Q. WELL, IF YOU SEE, MR. REEFMAN, IF YOU LOOK AT THE BOUGHT 197 1 E-MAIL YOU WRITE: DEAR INJURY RENT AS INN DISCUSSED ALREADY 2 INCREASING THE LINE SPEED FOR BAR MAG AND REIMOTEC (BAR MAG 15 3 PERCENT) REIMOTEC 30 PERCENT REQUIRES BOTH R AND D EFFORT AND 4 PRODUCTION EXPERIENCE AND THERE'S NO GUARANTEE THAT THE 5 BUDGETED PRODUCTION TARGET CAN BE REALIZED: 6 AT THIS TIME WAS MATTEX CONSIDERING INCREASING THE LINE 7 SPEED ON ITS EXTRUDERS BY 30 PERCENT. 8 A. OBVIOUSLY, YES, OTHERWISE I WOULDN'T HAVE WRITTEN IT HERE. 9 Q. WELL, WHAT DO YOU RECALL ABOUT THAT, SIR? 10 A. SORRY. 11 Q. WHAT DO YOU RECALL ABOUT WANTING TO INCREASE THE LINE 12 SPEED BY 30 PERCENT, WHY WAS THAT? 13 A. IT WILL INCREASE YOUR OUT PUT. 14 Q. AND WHY DO YOU WANT TO INCREASE THE OUTPUT? 15 A. TO USE YOUR CAPACITY BETTER. 16 Q. AND BY USE THE CAPACITY BETTER YOU MEAN MAKE THE FIBER 17 CHEAP FOR MATTEX TO PRODUCE? 18 A. NO, YOU DON'T MAKE YOUR -- YOU DO NOT -- IT'S ABOUT MAKING 19 YOUR FIBER CHEAPER TO PRODUCE BASICALLY BECAUSE WHAT YOU DO IS 20 YOU CREATE MORE OUTPUT SO YOU HAVE MORE YARN TO SELL. IT 21 DOESN'T NECESSARILY MAKE IT CHEAPER, BUT YOU LOPEZ IF YOU CAN 22 GET YOUR PRODUCTION UNDER CONTROL THAT YOU INSTEAD OF, SAY, A 23 HUNDRED KILO PER HOUR WE CAN MAKE 150 KILO PER HOUR, FOR 24 EXAMPLE. 25 Q. AND IF THAT IF THAT OCCURS THEN MATTEX'S PROFITS GO UP, 198 1 CORRECT? 2 A. THAT IS CORRECT. 3 Q. DO YOU RECALL REQUESTS BY MR. VAN BALEN FOR MATTEX TO 4 INCREASE ITS LINE SPEEDS? 5 A. THERE HAVE BEEN -- THERE HAS BEEN DISCUSSED, YES. 6 Q. AND WHEN DID THOSE DISCUSSIONS BEGIN? 7 A. I REMEMBER DISCUSSIONS ABOUT LINE SPEED FROM THE VERY 8 FIRST DAY THAT I ARRIVED IN JEDDAH OR FROM THE VERY FIRST DAY 9 AT THAT WE WERE RUNNING THE EXTRUSION BECAUSE YOU HAVE CERTAIN 10 EXPECTATION WHEN YOU BUY YOUR EQUIPMENT AND THEN YOU HAVE TO 11 MAKE SURE THAT YOU ARE GOING TO TRY TO MAKE IT AS GOOD AS 12 POSSIBLE AND LINE SPEED IS ONE OF THE PARAMETERS. 13 Q. IS IT YOUR RECOLLECTION THAT MR. VAN BALEN WAS FROM THE 14 VERY MOMENT YOU STARTED INTERESTED IN INCREASING THE LINE SPEED 15 ON THE REIMOTEC EXTRUDERS? 16 A. I CANNOT REMEMBER. I WOULD ASSUME SO BECAUSE YOU ALWAYS 17 TRY BETTER, BUT I CANNOT REMEMBER. 18 Q. BUT DO RECALL SPECIFIC DISCUSSIONS WHERE HE PUSHED HIS 19 TEAM AS YOU SUGGESTED TO INCREASE THE LINE SPEED ON THE 20 REIMOTEC EXTRUDERS? 21 A. YES, YES. 22 Q. DID HE STATE WHY HE WANTED TO INCREASE THE SPEED ON THE 23 REIMOTEC EXTRUDERS? 24 A. TO INCREASE OUTPUT. 25 Q. DID HE SAY WHY HE WANTED TO INCREASE OUTPUT? 199 1 A. TO INCREASE PERFORMANCE. 2 Q. BY PERFORMANCE DO YOU MEAN MATTEX'S FINANCIAL PERFORMANCE? 3 A. YES. 4 Q. ALL RIGHT. I'M GOING TO DIRECT YOU BACK TO THIS DOCUMENT. 5 AND IF YOU LOOK AT NUMBER 2 HERE, YOU WROTE TO REIMOTEC: 6 BUDGET INCREASE FROM 27 TO 35 TONS NET PER WEEK (35 PERCENT) 7 THEN EVOLUTION WATER CARRY OVER IS THE FIRST MAIN PROBLEM. 8 HANDLING BY PRODUCTION SECOND MAJOR ISSUE. EXPECT HIGH 9 INCREASE OF WRAPS AND YARN BREAKAGES. 10 SO WERE YOU SUGGESTING HERE THAT INCREASING THE LINE SPEED 11 MIGHT CAUSE A NUMBER OF ISSUES IN THE PRODUCTION OF EVOLUTION? 12 A. YES. 13 Q. AND THEN YOU WROTE: WE HAVE NO IDEA IF WE CAN KEEP THE 14 PHYSICAL PROPERTIES UNDER CONTROL. EXPECTED INCREASE IN 15 SHRINKAGE WILL BE ONE PERCENT TO 1.5 PERCENT AT A SPEED 16 INCREASE OF ABOUT 5 TO 10 PERCENT. FOR TARGET INCREASE OF 35 17 PERCENT THROUGH PUT IT NEEDS TO BE PROVEN TO KEEP THE 18 PROPERTIES UNDER CONTROL AND IN RANGE? 19 SO AT THIS POINT, MR. REEFMAN, WERE YOU CONCERNED THAT 20 MATTEX WOULD BE UNABLE TO MAINTAIN THE PHYSICAL PROPERTIES OF 21 EVOLUTION IF THEY INCREASED THE LINE SPEED. 22 A. NOT NECESSARILY CONCERNED. BUT, AS I SAY, IT NEEDS TO BE 23 PROVEN. SO IT MEANS THAT YOU HAVE TO TRY AND SEE HOW FAR YOU 24 CAN GET WITH IT WITHOUT AFFECTING THE PROPERTIES OF THE FINAL 25 PRODUCT. 200 1 Q. WHAT DID YOU MEAN WHEN YOU WROTE: WE HAVE NO IDEA IF WE 2 CAN KEEP THE PHYSICAL PROPERTIES UNDER CONTROL? 3 A. WELL, AT THAT TIME WE DIDN'T KNOW IF YOU ARE GOING TO 4 INCREASE TO 30 PERCENT IF YOU CAN DO THAT WITH KEEPING THE 5 PHYSICAL PROPERTIES IN CONTROL, YEAH. SO INCREASING TO 30 6 PERCENT MIGHT BE POSSIBLE, BUT YOU MIGHT HAVE A DIFFERENT YARN. 7 Q. BY DIFFERENT YARN, YOU MEAN ONE THAT HAD VERY DIFFERENT 8 PHYSICAL PROPERTIES? 9 A. YES. 10 Q. SO INCREASING THE LINE SPEED MIGHT HAVE CHANGED OR ALTERED 11 THE PERFORMANCE OF THE YARN? 12 A. THAT IS WHAT WE THOUGHT BEFORE IT, NOT -- IT MIGHT BE AT 13 SOME STAGE, AT SOME SPEED IT WILL DEFINITELY HAVE AN IMPACT. 14 AT THAT TIME WE WERE NOT SURE WHERE THE BOUNDARY WOULD BE, AT 15 WHAT LEVEL OF INCREASE WE WOULD SAY STOP, YOU CAN'T DO IT 16 ANYMORE WITHOUT CHANGING PROPERTIES OF THE YARN. SO MY E-MAIL 17 TO JEROEN IS OKAY, JEROEN WE ARE GOING TO TRY, YEAH, BUT WE 18 CANNOT TELL YOU NOW WHERE WE ARE GOING TO END. 19 Q. I SEE. 20 SO MATTEX AT THIS POINT WAS INTERESTED IN INCREASING THE 21 LINE SPEEDS UP TO THE POINT AT THE MAXIMUM THAT THEY THOUGHT IT 22 COULD DO? 23 A. YES. 24 (END OF VIDEOTAPED DEPOSITION.) 25 THE COURT: ALL RIGHT. CALL YOUR NEXT WITNESS. 201 1 MR. SKIBELL: YOUR HONOR, WE WANTED TO READ A 2 DOCUMENT INTO EVIDENCE. THIS IS A -- WE WILL OFFER IT INTO 3 EVIDENCE. THIS IS A DOCUMENT THAT WAS PRODUCED BY TENCATE IN 4 THIS CASE. 5 MR. CREMER: WE OBJECT TO THIS, LACK OF FOUNDATION 6 AND HEARSAY. 7 MR. SKIBELL: SIR, WE BELIEVE IT WAS PRODUCED BY 8 TENCATE AND HAS ADDITIONAL INDICIA OF RELIABILITY AND IT SHOULD 9 BE ENTERED INTO EVIDENCE. 10 THE COURT: LADIES AND GENTLEMEN, I'M GOING TO EXCUSE 11 YOU FOR THE DAY. DURING THE EVENING RECESS, REMEMBER MY 12 INSTRUCTIONS TO YOU NOT TO DISCUSS THE CASE WITH ANYONE, NOT TO 13 ALLOW ANYONE TO DISCUSS THE CASE IN YOUR PRESENCE. DON'T EVEN 14 BEGIN DISCUSSING THE CASE AMONG YOURSELVES YET. AND YOU ARE 15 EXCUSED UNTIL 9:30 TOMORROW MORNING. WE WILL RESUME THE TRIAL 16 AT THAT TIME. 17 (JURY EXITED THE COURTROOM.) 18 THE COURT: MR. SKIBELL, WE HAVE BEEN DEALING WITH 19 DOZENS, IF NOT HUNDREDS OF DOCUMENTS, AND THEY HAVE JUST BEEN 20 INTRODUCED. IF THEY ARE ADMISSIBLE, WHY ARE YOU WANTING TO 21 READ THIS SPECIFIC DOCUMENT AT THIS TIME? 22 MR. SKIBELL: WE BELIEVE THIS DOCUMENT IS ADMISSIBLE 23 INTO EVIDENCE. TENCATE HAS RAISED AN AUTHENTICITY OBJECTION. 24 WE DON'T BELIEVE THAT AUTHENTICITY OBJECTION IS WELL FOUNDED 25 BECAUSE IT WAS PRODUCED BY THEM. IT'S THE BOARD MINUTES -- 202 1 IT'S THE MINUTES OF A MEETING HELD BY MATTEX. AND, THUS, WE 2 THINK IT'S CLEARLY AN AUTHENTIC DOCUMENT HELD BY TENCATE. 3 THE COURT: WHAT'S THE EXHIBIT NUMBER? 4 MR. SKIBELL: IT'S 1171, YOUR HONOR. 5 THE COURT: LET ME SEE IT. 6 MR. CREMER: YOUR HONOR, THEY HAD AN OPPORTUNITY TO 7 ASK WITNESSES ABOUT THESE DOCUMENTS, LAY A FOUNDATION -- 8 THE COURT: BE QUIET, MR. CREMER. 9 MR. CREMER: DIDN'T YOU ASK ME? 10 MR. SKIBELL: I HAVE A HIGHLIGHTED VERSION, YOUR 11 HONOR. BUT I WILL ALSO GIVE YOU AN UNHIGHLIGHTED VERSION. 12 (THE COURT REVIEWED THE DOCUMENT.) 13 THE COURT: WHAT'S YOUR OBJECTION, MR. CREMER? 14 MR. CREMER: YOUR HONOR, THESE DOCUMENTS WERE NEVER 15 COVERED WITH ANY WITNESS TO LAY AUTHENTICITY OR FOUNDATION FOR 16 THEIR ADMISSIBILITY AND IT'S INAPPROPRIATE TO TAKE DOCUMENTS 17 WITHOUT FOUNDATION AND JUST READ THEM TO A JURY. 18 THE COURT: WELL, IT HAS THE NOTATION DOWN AT THE 19 BOTTOM HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY TENCATE 2318 20 THROUGH 2321. IF YOU PRODUCED THEM, THAT WOULD CONSTITUTE AN 21 ADMISSION, MR. CREMER. 22 MR. CREMER: I'M SORRY. I DON'T EXACTLY UNDERSTAND 23 YOUR POSITION, JUDGE, THAT IT'S AN ADMISSION. 24 THE COURT: PARDON ME? 25 MR. CREMER: I DON'T UNDERSTAND YOUR POINT THAT I 203 1 PRODUCED THEM AS AN ADMISSION. 2 THE COURT: IF YOU ARE ASKED TO PRODUCE CERTAIN 3 DOCUMENTS AND YOU PRODUCED THESE AS THE DOCUMENTS THAT YOU ARE 4 BEING ASKED TO PRODUCE, YOU ARE SAYING THESE ARE THE DOCUMENTS. 5 MR. CREMER: I PRODUCED DOCUMENTS RESPONSIVE TO 6 DISCOVERY REQUESTS. I'M NOT SAYING THAT THEY HAVE THE 7 ADMISSIBILITY INTO EVIDENCE IN A TRIAL. THAT'S NOT WHAT I HAVE 8 SAID. 9 THE COURT: WELL, I DISAGREE AND I'M THE ONE THAT 10 GETS TO MAKE THE DECISION. 11 MR. CREMER: I UNDERSTAND. 12 THE COURT: I'LL ADMIT PLAINTIFF'S EXHIBIT 1171 OVER 13 OBJECTION. 14 MR. CREMER: I WOULD ALSO POINT OUT -- AND I KNOW YOU 15 HAVE RULED, AND I KNOW YOU ARE GOING TO YELL AT ME FOR THIS -- 16 BUT THIS IS A MATTEX DOCUMENT. MATTEX IS NOT A PARTY TO THE 17 CASE, SO I WANTED TO POINT THAT OUT THAT I WAS REMINDED OF IN 18 MY EAR. I APOLOGIZE. 19 THE COURT: I'M NOT GOING TO YELL AT YOU. I'D LIKE 20 TO YELL AT YOU, BUT I'M GOING TO TRY TO STAY CALM. 21 MR. CREMER: I APPRECIATE THAT, JUDGE. 22 THE COURT: WHAT DO YOU SAY TO IT'S NOT AN ADMISSION 23 BY TENCATE, MR. SKIBELL? 24 MR. SKIBELL: AS YOU HAVE ALREADY FOUND IN THIS CASE, 25 YOUR HONOR, TENCATE ACQUIRED THE ASSETS AND LIABILITIES OF 204 1 MATTEX. AND SO WE THINK IT'S CLEARLY ADMISSION. AND WE ALSO 2 THINK YOUR HONOR HAS -- LIKE I HAD NOTED EARLIER HAS ADDITIONAL 3 INDICIA OF RELIABILITY. WE THINK IT'S AUTHENTIC. 4 THE COURT: ALL RIGHT. I WILL ADMIT IT OVER 5 OBJECTION. 6 MR. CREMER: THANK YOU, YOUR HONOR. 7 MR. SKIBELL: THANK YOU. 8 THE COURT: ALL RIGHT. THE PLAINTIFF HAS AVAILABLE 9 12 HOURS AND 42 MINUTES OF YOUR TIME. THE DEFENDANT HAS 10 AVAILABLE 15 HOURS AND 41 MINUTES OF YOUR TIME. 11 WE WILL BE IN RECESS UNTIL 9:30 TOMORROW MORNING. 12 13 14 15 16 17 18 19 20 21 22 23 24 25