Deposition 2 - deposition of expert in products liability case

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IT IS STIPULATED AND AGREED by and between counsel for Plaintiff and counsel for Defendant that the deposition of H. BOULTER KELSEY, JR., may be taken for discovery purposes, pursuant to and in accordance with the provisions of the Illinois Civil Practice Act and Supreme Court Rules pertaining to such depositions, by and on behalf of the Defendants, on May 27, 2003, at Greensfelder, Hemker & Gale, P.C., 10 South Broadway, City of St. Louis, State of Missouri, before Sally A. Rudolf, Certified Shorthand Reporter, #084-003467; that the issuance of notice is waived and that this deposition may be taken with the same force and effect as if all statutory requirements had been complied with.

IT IS FURTHER STIPULATED AND AGREED that any and all objections to all or any part of this deposition are hereby reserved and may be raised on the trial of this cause, and that the signature of the deponent is waived.

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?? opinions contained in exhibit 3, correct?

A: That's correct.

MR. HENDERSON : Just for the record, as I was looking through exhibit 3 over the weekend, the copy that was made an exhibit to Tom Londrigan's deposition may not have had page 2 in it. I think it was a copying error at my office, but I have a corrected copy which I'm going to ask the court reporter to mark exhibit 3A and attach to this deposition.

(Deposition Exhibit 3A marked for identification)

Q: Mr. Kelsey, I'm going to go through exhibit 3A with you sort of sentence by sentence so that we understand -- so that 1 understand --

A: Um-hum.

Q: -- all of your opinions. But just a few general questions at first if I may.

A: Certainly.

Q: Have you been able to formulate an opinion with a reasonable degree of engineering certainty that there was an unreasonably dangerous condition in the 1997 Dodge pickup truck at the time of the accident?

A: Yes, sir.

Q: And what is that opinion?

A: That there was.

Q: And will you tell me what that opinion -- what the unreasonably dangerous condition is?

A: We can't be specific relative to what the specific components of involvement are with that defective condition. What we know from the accident scenario, the witness statement following the vehicle, the condition of the situation there at the rode, what was involved, that the vehicle for unknown reasons turned left. The physical evidence that would allow us to determine why the vehicle suddenly turned left has been spoliated. It doesn't exist. However, given what we know about motor vehicles, we know that a defect would be present that led to a failure of a component in the suspension system of the vehicle, the steering system of the vehicle or the rear suspension of the vehicle, the front suspension, rear suspension or steering. Those are the areas of the components where the defective condition would have been specifically located.

Q: Okay. Have you been able to formulate an opinion with a reasonable degree of engineering certainty whether that unreasonably dangerous condition that you've described --

A: Um-hum.

Q: -- existed at the time it left the control of DaimlerChrysler?

A: Yes, sir. I believe that it did in that the vehicle was relatively new, hadn't seen hundreds and hundreds of thousands of miles of use. It's a relatively heavy duty vehicle, four-wheel drive, the components of which are built to take rugged use. This vehicle, my understanding, was something less than a year old from the date of manufacture. The owner had had it six or seven months prior to the accident occurrence, and the kind of thing that must have failed would have contained the defect that led to the failure at the time of manufacturing. It would not be something that would be a design problem that would have been recognized through multiple accidents as a result of that design problem. And this is a singularity, shall we say, that had to be in the vehicle at the time that it was manufactured.

Q: And do I understand correctly then that it's your opinion that there could not have been anything that occurred to the vehicle between the time it was sold and the time of the accident that could have caused the suspension, front or rear defect or the steering defect?

A: That's correct.

Q: Do sus -- front and rear suspensions and steering components fail in the absence of defects from time to time in your experience?

A: Extremely seldom, particularly in vehicles that are relatively new. The design process utilized by the automotive industry across the board is such that that sort of thing is minimized, if not entirely eliminated. The only thing that leads to that kind of a failure is some sort of flaw in the system. And you cannot put flaws in the system through normal or even abnormal usage.

Q: So just so that 1 understand, it's your opinion that there was a manufacturing defect in the front or rear suspension or the steering existing when it left the control of the manufacturer that caused the vehicle to veer left into the wall.

A: That's correct.

Q: And it's further your testimony that failures of front or rear suspensions and steering components?? don't occur in vehicles that are a year old or less in the absence of manufacturing defects.

A: Essentially correct, yes.

Q: Okay.

A: I'm not saying it's impossible, but the ??

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?? conclude that prior to that time it's questionable whether an analysis could have been made to determine the nature of the vehicle defect. But certainly after that point in time it would be impossible.

Q: Okay. From reviewing the photographs are you able to tell whether it was the front or rear portion of the frame that was sold on November 18th, 1999?

A: Well, at the time that we looked at it and in November of '02, it's -- considerably more has been removed, but it would certainly appear that the front frame horn had been removed at that point in time. We also had some other cutting work that's been done on the frame subsequently which we can't identify at the time.

Q: Maybe for expediency we can refer to what I'm going to ask the court reporter to mark as exhibit 10, and I think it includes all the photographs that you have. They're not nearly as good, but they will help me when I take a look at the transcript to understand exactly what we were talking about.

A: All right

(Deposition Exhibit 10 marked for identification)

Q: The court reporter has marked exhibit -- as exhibit 10 a series of photographs, some of which were taken before the vehicle -- well --

A: Those are Shafer's I believe.

Q: Shafer's I think, yes. But they are marked from -- I put, for instance, on the first page is A and B?

A: Um-hum.

Q: And they go all the way to triple R.

A: Yes, sir.

Q: So if we can identify from those photographs, if you can refer to those in your testimony, that would be helpful.

A: All right. We -- the photographs that we see here of January 17th of '98, which would be A, B, C, D, E, F, G, H, I, J, those are all showing the vehicle in the post accident condition before any particular salvage effort had been made.

MR. HABECKER : What was the date of those? A through J are dated when?

A: Those were taken by Mr. Shafer January 17th of 1998 according to the date that's on the film.


A: All right. Then I don't know who took these photographs. They might be copies of ours. I believe they are. And they show a lot of removal. The front axle is no longer here. The front suspension has been cut up. The frame horn's been removed on both -- looks like both sides at this stage.

Q: Which one are you referring to?

A: I'm referring to K, L, M, N, O, P shows where the front cross member has been cut and the engine had been removed. R shows the front axle and engine had been removed. S shows a portion of what appears to be the drag link of the vehicle, part of the steering, but it's cut and it's separate from the vehicle itself.

Q: Okay.

A: Those are the things that are apparent in those views.

Q: Okay. Well, we're going to go through those photographs. At any rate, we were talking on page 30 of exhibit 9 that November 18th, 1999, seems to be the sort of drop dead date in terms of when the vehicle -- the very latest that the vehicle could have been inspected in a meaningful manner from your perspective; is that correct?

A: Essentially correct. That is -- this record says that on that date they got rid of the axle. Now, in getting the axle out of this vehicle, it was removed, not with wrenches but with a cutting torch. And in the process of removal, the pertinent evidence was destroyed. Now, it could well have been that the pertinent evidence was destroyed well prior to that time. But there's no way to know.

Q: Okay. I understand. Let's go back to your report, the first supplemental opinion witness disclosure, 3A. You also -- well, on the very last partial sentence beginning right at the bottom, you also had available depositions of the defendants, deposition of the plaintiffs?

A: Um-hum.

Q: Statement of the police officer, and a copy of the statement of Mr. Shafer as well as information that Mrs. Miller has pertaining to statements by the police officer, correct?

A: Correct.

Q: Okay. Let's talk about those -- I noticed your file contained an abstract or a summary of the depositions of all of these people that -- who were deposed, correct?

A: Yes, sir.

Q: Including the police officer?

A: Yes.

Q: Now, Mr. Shafer's statement is also in your file, correct?

Note: Pages 37-44 missing in original document

Note: Pages 45-48 illegible in original document

Note: Pages 49-56 missing in original document

A: Another attorney over in Illinois somewhere as I recall.

Q: Okay. Do you know what city?

A: Edwardsville, Belleville, one or the other, I think.

Q: Do you recall what Mr. Carter told you on that occasion?

A: Basically what I've got right here. He told me that he had a case involving a Dodge pickup truck that crashed into a wall. It was a single vehicle accident and that there was a crash worthiness issue that the accident happened December 30th of '97, and he said the pickup was not preserved at the time, and I told him point blank, there's no case unless we have a truck in the post crash condition for analysis. To determine crashworthiness, you got to have the vehicle. For that matter, accident reconstruction in general, if you're looking for a vehicle problem, you've got to have a vehicle.

Q: Do you recall the next event that occurred in the case then?

A: Well, nothing happened for a while. And then he got back to me about January 25th of '01, and there's an undated page of notes. It's right in front of the contract of January 25, '01, where we talked, and he explained that plaintiff had been driving a new '97 Dodge Ram on a street in Peoria, speed limit about 35. He drove into a building, had a bad leg injury, the vehicle had been towed to a pool and stayed there 60 days and was sold to, and I didn't put down who, but was parted out on 3/26/98 and went to Quincy, a lawyer contracted with the plaintiff, Mr. Miller, on March 20th of '98 and that based on our previous conversation that you couldn't go forward with the products liability case on the vehicle unless we had the vehicle, and he was filing a legal malpractice case.

Q: I think that's page 42.

A: Okay. Yeah. Okay.

Q: And that note would have been made around the time that the contract was made with Mr. Carter and yourself?

A: Yes, sir. January 25th of 01. Either that day or the day before.

Q: And there's a fee schedule, page 45?

A: Yes, sir.

Q: And your hourly rate is $185 per hour?

A: It was then.

Q: What is it now?

A: 225 an hour.

Q: ?? this deposition what is your rate?

A: 275 an hour. Deposition and trial time is billed at 275. Discovery, research, testing is 225.

Q: Okay. What -- do you recall then what would be the next step that you would have taken?

A: Well, the next step was to get the contract back.

Q: Um-hum.

A: And then Mr. Miller -- or Mr. Carter sent me -- there actually was a letter that predated that which was December 27th of 2000.

Q: It's page 41.

A: Yes. Mr. Carter and I talked. This was confirming our conversation. What was that? 41 you say?

Q: Yes.

A: Okay. But we really didn't do anything until he had -- he did contact me in the near future, which was when we set up the file, January 25th of '01, and then he sent me the materials that we've been talking about.

Q: Okay. That's page 39, a January 30th, 2001, letter, 39 and 40.

A: Now, that's where I got my file out of order, but I will take your word for it, yes.

Q: Okay. And then what's the next -- the next step in your --

A: Well, basically --

Q: -- review of the case?

A: For a while nothing happened, and then we started chasing down the vehicle. We had had that conversation, as I said previously, about the vehicle being crushed, at least that was our information at the time. And the discovery process went forward, and we reviewed the depositions as they became available. We looked at the photographs and all that.

Q: When was the first point where you began to question the steering or the suspension or some inability to control the vehicle having had a part in this accident?

A: Very near on in the beginning of this I was suspicious of that. The circumstances of the accident as we have discussed it were not particularly conducive to other causations. There's no other vehicle involved. He's driving down a relatively straight road. He's in a town. He's not, you know, subjected to the boredom of interstate highway transport. The circumstances of the vehicle crashing were just telling me that, hey, something probably went wrong with the steering here as being the more probable cause of the accident. I had concluded that when we first discussed it. And I said, you need to have the vehicle in the post crash condition to determine what's involved. Then everything I've read -- reviewed subsequent to that confirmed what my original suspicions were.

Q: Page 36 of exhibit 9 is a 11/11/02 memo --

A: Right.

Q: -- about Mr. Shafer's discussion with the driver, tow truck.

A: Right. That's right.

Q: Is there anything in your file before that that indicates that you're questioning the steering or the suspension or the inability to control the vehicle as a cause for the crash?

A: Let me look. I don't have a document specific to that. What was the date again?

Q: The date of that is 11 --

A: 11/11/02.

Q: Right.

A: Okay. Yes, I do have it. It's a cryptic note from 8/30/01, PC Jim Carter, defined parts. What I'm saying there is my note to myself that I told Jim at that point what portions of the vehicle would have been involved in a control loss.

Q: Okay. That's par -- page 38 by the way.

A: 38.

Q: Anything else before that November 11 date in your file that indicates that's what you're looking for?

A: I don't think I have any other record in the file relative to that other than what Mr. Carter had put back to me based on our conversations.

Q: The last paragraph on page 2 of exhibit 3A, it is anticipated you will also opine that the incident in question, the totality of the damages to the vehicle and the method by which the incident occurred are inconsistent with the plaintiff having fallen asleep and are most consistent with left suspension failure including steering and/or wheel locating devices as described.

A: Correct.

Q: Now, when we first started you said this was inconsistent with the plaintiff falling asleep because generally they just sort of drift off the road at a very shallow angle to the original vector of travel, correct?

A: That's correct.

Q: And here you feel that the angle was sharper.

Q: ?? might be better --

A: To get up the curb. If you -- the -- having done it, fallen asleep, the -- and though this is sort of the medical side of it, was my experience in accident analysis and reconstruction over the years that people when they fall asleep just sort of go limp. They don't put forces in. So what causes the vehicle to drift off is the lack of force input. Motor vehicles, including pickup trucks, are designed to go straight. Have to put a force in to take them off the straight-ahead. So if you just go to sleep, the vehicle will continue straight ahead unless it's acted on some exterior force. Well, typically, if you're on a road surface that has a crown, which means it's high in the middle, low on each side so that the water runs off the side, the vehicle will drift down the crown. So what you normally have happen if you're driving down a road that's crowned and you let go of the steering wheel, the vehicle will slowly drift off to the right, not to the left. If you fall asleep, that's what sort of -- that's what you can expect to have happen, and the vehicle will -- the steer angle, which is very shallow and will not make a sharp turn, which requires force input. Now, what happened here is the vehicle turns left. It climbs a curb, admittedly not a huge curb, but it climbs the curb and it strikes the building. Generally speaking, if you're asleep, and let's just suppose for some reason or another you do drift left instead of right, when you hit the curb, you'll wake up because you have a sound input. You have a jerk. Generally the hands are still on the steering wheel, limp as they may be, but it jerks you around and you wake up and react to it.

Q: Try to steer away from whatever.

A: Exactly.

Q: Or put your foot on the brake, right?

A: Well, depending on what you do. Sometimes -- people -- it's interesting how people react to this kind of a situation. Under a surprise circumstance, people often -- more often than not steer rather than brake. Their hands are already on the steering wheel. The foot for the brake is probably still on the gas, if they fall asleep. And you don't react consistently to hit the brakes the minute something untoward goes haywire. Steer, yes. Because we're there doing that. Braking, no. Braking is a secondary reaction. If the steering doesn't work, ??

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A: Correct.

Q: No recalls as well with respect to suspension or steering; is that correct?

A: That's correct.

Q: The last paragraph on page 4, have we fully discussed the first two sentences? I think it has to do with your opinion that a manufacturing defect in fact existed; but you can't tell exactly what kind because you don't have the evidence to review; is that correct?

A: Correct.

Q: Then follows your opinions with respect to the distance traveled and the rate of speed of the vehicle?

A: Yes, sir.

Q: And --

A: Of primarily the speed that we're talking about there.

Q: Right. And the lack of reaction time; is that -- what are you trying to get -- with respect to the sentence that says, Mr. Kelsey will opine that at 35 miles an hour the vehicle would have been moving 5l-1/2 feet, etc., what is your opinion on that?

A: Well, basically what we're talking about, setting the stage here relative to the fact that if you have a steering failure, for whatever one of these reasons we've talked about, let's just assume. that a failure occurs such that the vehicle is now suddenly steered to the left independent of any input of the driver, it is moving at 51-1/3 feet per second down to maybe 44 feet per second going 30 miles an hour, which is covering ground at a good clip when you think about what the driver has to deal with. First off, he perceives that somebody's turning left and he has to interpret that and react to it. The first initial reaction, as I previously mentioned, would be to put steer input in. But by this time the vehicle has already gone across one, two, three lanes for all we know, we don't know exactly, we don't know exactly what his reaction time would be to this sudden change, but you then have to realize that the steering input isn't doing any good. And then go to the next step which would generally be to get on the brakes. The problem with all that is is that in the time span that we're probably looking at here, 1, 2, 3, 4 seconds, in that range, he never got to the point of putting on the brakes before he hit the wall; If the building hadn't been there and he had been able to go out in the boondocks, probably would have had time to get on the brakes. But when he hit the wall, it was all over.

Q: Are you able, again, looking at this photograph I, the photograph of the building?

A: Right.

Q: We don't see -- I don't know how many feet we see to the left of the damage to the wall, but in your opinion would he have been already over the curb at the point where this photograph begins to the left? Do you know what I'm asking?

A: I understand what you're asking, and I can't answer it.

Q: Okay.

A: Because we don't know that the -- the only angle that we can even estimate is the angle of impact, but what the angle was when it crossed the curb is completely unknown.

Q: So you wouldn't be able to give an opinion as to how -- there's always a controversy about what direction this street runs. I think Mr. Miller said it runs east, so let's use -- I think it runs northeast or north, but at any rate, assuming that it runs east and that this building, the front wall was essentially an east/west wall --

A: All right.

Q: -- would you have any opinion about how many feet to the west of the comer of this wall where the damage is shown it would have been when the vehicle hit the curb?

A: No.

Q: Or how many feet to the west of the corner when the vehicle first left its lane of travel?

A: NO.

Q: Okay.

A: Don't have any information that would allow me to give you an estimate even.

Q: Do you have an opinion that there are any manufacturing defects in the vehicle outside the front or rear suspension and steering components of this that had anything to do with the accident or the injuries?

A: There's nothing else that we can identify. that involved -- that would have been involved causally. That's not to say there isn't some other defect.

Q: I understand.

A: But in terms of what's causally involved, we've covered them.

Q: Okay. Have we discussed fully now your opinion in the first full paragraph on page 4 of exhibit 3A?

Note: Pages 81-88 missing in original document

Q: What is this work order, page 35?

A: That's a good question. I don't know where that came from. Look at truck. I don't know what that is from.

Q: Would this be for your technician?

A: No. No. It is not.

Q: Is this the right file number?

A: No.

Q: Oh,

A: Not our file number.

Q: Okay. I think we've talked about most of the rest of this.

A: Um-hum.

Q: Ultimately was there a contract signed?

A: Yes, sir.

Q: Have you sent any bills yet?

A: I assume so.

Q: You don't have those with you?

A: Oh, no. They're kept by my business manager. I'm not allowed to know about that sort of thing.

Q: For just this reason.

A: Not really.

Q: Okay.

A: I have got too many other things on my mind to worry about that.

Q: Okay. I'd like to go through the photographs and just the ones that are marked and contained in exhibit 10.

A: Um-hum.

Q: And just ask you, I know there are lots of. things that show the same things, but if you could point out to me the photographs that you feel are the most significant to you and the opinions that you formulated. We've already talked about the first --

A: Shafer's.

Q: Yeah, Shafer's photographs and the pictures of the wall and so forth.

A: Correct. I guess the best way to put this would be photographs K, L, and M show the front frame where the end of the frame horn has been torched off, shows the shock tower, fact that the shock absorber has been torched, the locating link, leading link is torched in half. Those are the things that we see there. It shows that even significant removal of the front suspension components.

Q: On exhibit X, is that the left frame rail? I'm sorry, exhibit K?

A: No. That's the right.

Q: Does there appear to be any damage to that from the photograph?

A: Other than the torch work?

Q: Yeah. Other than that.

A: No.

Q: Okay.

A: I don't see any -- now, there's possibly some bending present, but we can't really identify from these views what that might be, although if you look at photograph K, the frame rail is visible. If you look up this seam, you see that there's a bend in it. That may or may not be production.

Q: You don't know whether that's a design in bend or --

A: Correct.

Q: All right.

A: We can't tell from this photograph. Or if it's bent more than design.

Q: Okay.

A: Photograph N is more of the same showing the torched off sway bar and the end of the frame.

Q: Does there appear to be any deformation in any of those objects or are you able to tell?

A: Can't tell from the photograph.

Q: All right.

A: Figure O shows some -- a bent bracket, which appears to be part of the sway bar mount. That certainly could have been and probably was produced in the impact with the building. Photograph P shows frame rail. There's some buckling present, it appears, in that photograph.

Q: Of the rail?

A: Of the rail, yes, sir.

Q: Whereabouts?

A: Well, we see this cross member sticking off of it.

Q: Right.

A: Just after that towards the body, this area in here appears to be buckling and might be some bending back in here, too. It's hard to tell from the photograph.

Q: When you say after, you're talking toward the top of the picture as it's situated in the exhibit.

A: Correct.

Q: Okay.

A: If we took that direction right up here, it appears there's some bending in the frame around.

Q: Is that the left frame rail or are you able to tell?

A: Yes, sir. Then we've got Q, which shows the crunched fender. Nothing remarkable there. It's just obvious crash damage. R is more of the same. Again, we've got the torched off shock absorber and that sort of thing. All kinds of parts have been cut to remove the front suspension and axle assembly. S is a portion of a tie rod. One end has obviously been disconnected from the steering arm because the tie rod in itself is present with the capsulated nut.

Q: So somebody has taken that off.

A: Somebody took it apart, pulled it off and then put the nut back on the end of the tie rod.

Q: Can you tell which tie rod that is?

A: I certainly can.

Q: All right. Can you tell anything about the other end?

A: Not from this view. I just can't see it well enough.

Q: Anything that isn't valuable to your opinions, just tell me about it.

A: Okay. T has no value.

Q: All right.

A: That's the brake master cylinder. Doesn't appear to have any problems with it. S doesn't really tell us anything. It's a buckle control arm. L doesn't tell us anything. M --

Q: I'm sorry. I think S is U -- I've got it situated vertical -- and L is V?

A: U is the -- is a buckle control arm. That doesn't tell us much of anything.

Q: And V?

A: V doesn't tell us anything. W doesn't either. It's a view underneath the vehicle. X also. Y also. Z doesn't tell us anything other than the vehicle is sitting on the ground. There's no axles holding it up. AA shows the muffler. BB, nothing. CC gives the date that it was built, at least the month and year. 1/97 is when it was manufactured. ?? DD -- CC and DD are the same thing, just DD is a ?? focus. EE doesn't tell us anything. FF ??. GG does not other than it shows one of the ?? spring hangers. HH is a body mount. Doesn't ?? us anything, II shows broken windshield, the ?? the hood's been removed. JJ shows again the ?? off control arms.

Q: Is that the left or the right?

A: I can't tell you from that view.

Q: Okay. All right.

A: KK shows the interference of the door on the right side which shows some damage consistent with the right front fender being pushed over.

Q: From the left to the right?

A: Yes.

Q: Would you agree that there's minimal damage to the right side of the truck by comparison?

A: By comparison definitely.

MR. CARTER : Object to the form.

Q: All right.

A: Yes. Minimal, relatively speaking, although LL and MM show some of the damages that were sustained by the left front fender in the course of the impact. NN has no particular merit. OO shows the -- where the engine compartment -- where the engine would have been point mounted, course the engine and transmission have been removed. PP shows the view from the left front looking back, shows the left front frame rail, the -- what's called the radiator satellite goes out and supports the radiator and supports the left front fender. It's obviously seen crash damage. QQ is more crash damage in the left front. RR, some of the various miscellaneous items were found lying around, air cleaner hoses and air cleaner body and front suspension springs, that sort of thing. SS again shows that torched off portion of the right front frame, the suspension towers. TT shows the back of the left front door where it was forced rearward and blew the latch. UU is just a view of the VIN number. W is copy of our file number. WW is a overall view of the vehicle looking at the left front corner. XX from the left rear side, pickup bed has been removed. YY, overall view of the left front comer. ZZ showing the rear of the frame and the fact that the rear axle had been removed, the bed had been removed. And triple A is showing just a fuel tank and lines in the condition they were found in. Triple B shows a bracket that was found to one side that had been removed or cut from the vehicle. CC (sic) shows the gas line for the filler had been mounted in the fender which had been removed with the bed. Triple D shows rear spring hanger on the left side at the rear. Triple E shows what appears to be the air-conditioning, heating fan assembly. FF (sic) shows the front end of the right -- or left side -- or rear spring.

Q: Triple F.

A: Triple F shows the -- do that again. It shows the leading end and bracket mounting the front left rear spring, front of. Then triple G shows wheel and tire with a broken rim.

Q: Any idea how that occurred, broken rim?

A: Impact.

Q: To the brick wall?

A: Very likely.

Q: Okay.

A: Triple H shows a frame cross member. Triple I shows two wheels and tires. Triple J, more frame brackets that supported the bed. Triple K, again more frame, the rear, and triple L shows front suspension springs that were found lying the side of the vehicle -- inside of the vehicle cab. MM (sic) shows the vehicle dashboard area. NNN, triple N, shows the dash from a back further view. Triple O shows some of the various components that were found lying inside the truck. Triple P, just an overall view of the right front corner. Triple Q, more components found inside the vehicle. Triple R, again, the torched off control arms. That's it.

Q: From your review of all these photos, including the ones by Mr. Shafer, does it show any impact damage from the wall, not incidental damage, but an actual impact damage from the brick wall to any portion of the truck to the right of center as the driver's sitting in the --

A: No.

Q: How many files do you currently have open in which you're assisting attorneys either for the plaintiff or for the defendant in lawsuits?

A: Oh, about, again, moving target, I'd say about 200 at this point in time. Some of them are active and some are very inactive.

Q: And some of them you don't know I take it.

A: Some may have settled and gone away for all I know. They never tell me.

Q: And it's bur best estimate as you sit here now, another moving target, but 70 percent plaintiff, 30 percent defendant?

A: Of those things that are involved in litigation, yes, where we know it. Sometimes 1 get involved in investigations where there is neither yet. It's just contemplated as a possibility. And some of the cases -- some of the files I have are design work.

Q: Have you defended -- have you testified for an automobile manufacturer before?

A: Not for a manufacturer, no. I've testified for dealers many times on issues of negligence relative to maintenance or repair, something like that. But it's been my experience that the automotive industry generally uses in-house experts, generally speaking.

Q: Have you been disqualified as an expert witness in the past in any case?

A: Sure.

Q: In the last year?

A: No. Last time it came close, the trial judge was overruled by the court of appeals.

Q: Do you remember the name of that case or the product?

A: Yeah. Lauzon, L-a-u-z-o-n, versus Senco. It was pending in Minnesota in federal court. I don't recall the judge's name, but the trial judge held a hearing without witnesses present relative to a Daubert motion to disqualify my testimony, and he did so. And it was taken up on appeal and reversed on every single one of the 12 issues he disqualified me on. And luckily we settled it and I didn't have to go testify in front of the same guy.

Q: And there have been some cases in which you've been disqualified that have not been overturned on appeal?

A: Oh, yeah. In the beginnings of Daubert, I think everybody -- no one really understood exactly what it was all about. And since the disqualification is up to the discretion of the trial court, it happened. Usually it happened when the case had been prepared in light of state law and then removed to federal court. In fact, in all of the cases where I've been disqualified, that was the circumstance except one, and that one was because the lawyer didn't understand the new disclosure rules and wrote a horribly bad disclosure after which the judge would barely let me testify to my own name.

Q: Have you ever been disqualified under a Fry challenge?

A: Never.

MR. CARTER : Object to the form.

Q: You understand what I mean, don't you?

A: I do.

Q: Has your --

MR. CARTER : I don't think there is such a thing.

Q: -- involvement in this case, have you performed any kind of testing?

A: No, sir. There's nothing to test.

Q: Okay. Have you inspected an exemplar vehicle?

A: No. I don't see any reason to do that.

Q: And that's because your opinion is that there's a manufacturing defect in this case that wouldn't show up on an exemplar; is that correct?

A: That's correct. A design defect would be something that would have been replicated, and given the age of the vehicle and here we are in 2003 ??

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