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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR WALTON COUNTY, FLORIDA CIVIL DIVISION

JOHN P. CARROLL,

Plaintiff,

vs.

WATERSOUND BEACH COMMUNITY ASSOCIATION, INC., Florida Corporation, WATERCOLOR COMMUNITY ASSOCIATION, INC., Florida Corporation, DAVID LILIENTHAL, individually and as Director, MARY JOULE, SANDRA MATTESON, RONALD VOELKER, JOHN DOE, JANE DOE, and OTHER UNKNOWN CONSPIRATORS,

CASE NO. 09CA002021

Defendants.

/

DEPOSITION OF:

DREW ROBERTSON

TAKEN AT THE INSTANCE OF:

The Plaintiff

DATE:

June 21, 2011

TIME:

Commenced at 3:05 p.m. Concluded at 4:05 p.m.

LOCATION:

Dunlap & Shipman 2065 Thomasville Road Suite 102 Tallahassee, Florida

REPORTED BY:

JO LANGSTON Registered Professional Reporter

ACCURATE STENOTYPE REPORTERS, INC. 2894 REMINGTON GREEN LANE TALLAHASSEE, FLORIDA 32308

(850)878-2221

2

APPEARANCES:

REPRESENTING THE PLAINTIFF:

(Appearing pro se)

JOHN CARROLL Box 613524 WaterSound, Florida 32461

REPRESENTING THE DEFENDANT WATERSOUND, LILIENTHAL, JOULE, MATTESON:

(Appearing via telephone)

CHRISTOPHER GEORGE, ESQUIRE Scott, Sullivan, Streetman & Fox, P.C. 56 St. Joseph Street Regions Bank Building, 10th Floor Mobile, Alabama 36602

REPRESENTING THE DEFENDANT WATERCOLOR:

REBEKAH SMITH, ESQUIRE Dunlap & Shipman 2065 Thomasville Road, Suite 102

Tallahassee, Florida 32308

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1

INDEX

2

WITNESS

 

PAGE

3

DREW ROBERTSON

 

4

Direct Examination by Mr. Carroll

4

5

Cross-Examination by Mr. George

33

6

Redirect Examination by Mr. Carroll

38

7

8

9

10

INDEX OF EXHIBITS

11

NO.

DESCRIPTION

PAGE

12

1

Soil boring report

7

13

2

Photographs

9

14

3

E-mail dated 2/2/2010

12

15

4

Three photographs

21

16

6

Material Safety Data Sheet

28

17

18

19

20

21

22

23

CERTIFICATE OF OATH CERTIFICATE OF REPORTER

 

41

42

24

ERRATA SHEET

 

43

25

ACCURATE STENOTYPE REPORTERS, INC.

4

1

P R O C

E

E

D I

N G S

2

The following deposition of DREW ROBERTSON was

3

taken on oral examination, pursuant to notice, for purposes

4

of discovery, for use as evidence, and for such other uses

5

and purposes as may be permitted by the applicable and

6

governing rules. Reading and signing of the deposition

7

8

transcript by the witness is not waived. *

*

*

9

THE COURT REPORTER: Would you raise your right

10

hand, please.

11

Do you swear or affirm that the testimony that

12

you are about to give will be the truth, the whole

13

truth, and nothing but the truth?

 

14

THE WITNESS: Yes.

 

15

WHEREUPON,

16

 

DREW ROBERTSON

 

17

the witness herein, having been first duly sworn, was

18

examined and testified as follows:

 

19

MR. GEORGE: I just wanted to object on the

20

record, John, to any of his file that he brought

21

with him, I'm going to object to introducing any of

22

that into evidence, except for the parts that you've

23

identified on the exhibit list you've already given

24

us.

25

There are some parts of what should be in his

ACCURATE STENOTYPE REPORTERS, INC.

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1

file

that you've identified as an exhibit. The rest

2

of what's in his file we object to on the grounds it

3

hasn't been identified as an exhibit in a timely

4

manner.

5

 

MR. CARROLL: Okay.

6

THE WITNESS: Can I ask, who is on the phone?

7

MR. GEORGE: I'm sorry. This is Chris George.

8

We represent WaterSound, David Lilienthal, Sandra

9

Matteson and Mary Joule. THE WITNESS: Thank you. MR. GEORGE: Yes, sir. DIRECT EXAMINATION

10

11

12

13

BY MR. CARROLL:

14

Q

Could you state your name for the record,

15

please.

16

A

Drew Robertson.

17

Q

And are you a professional geologist?

18

A

I am.

19

Q

And what's the name of the firm that you work

20

for?

21

A

Soils, Sediment & Subsurface.

22

Q

In order to be a geologist, do you have to be

23

licensed in Florida?

24

A

Yes.

25

Q

Are you a licensed geologist?

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1

 

A

Yes.

2

Q

And if you would, could you tell me

3

approximately when you obtained your license?

4

 

A

I think I got my Florida license in probably

5

2002, 2003, somewhere in there.

6

 

Q

Did you have to have special training to get

7

your license?

8

 

A

Yes.

9

Q

And what was that training like?

10

A

You had to have a four-year degree from an

11

accredited, board-accredited university. And then I had

12

a master's degree on top of that, so it took down some of

13

my professional time, and you have to have five years

14

professional time, certified by either a professional

15

engineer or a professional geologist.

16

 

Q

And that was all before you obtained your

17

license in 2002?

18

 

A

Yes.

19

Q

Do you think you could quantify how much

20

experience you have then?

21

 

A

I've been doing either consulting work or work

22

with DEP, with the State, or in the private sector since

23

1999.

24

 

Q

Okay. The soil study or the -- would you call

25

that a soil study, or what did you do out there at

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1

WaterSound Beach?

2

A

I was pretty much contacted just to pretty much

3

just identify the underlying soil types or what was

4

present at the test locations.

5

Q

Is that kind of a test or analysis something

6

that's typical of a geologist?

7

A

Yes.

8

(Plaintiff's Exhibit No. 1 was marked.)

9

MR. CARROLL: I'll go ahead and mark this first

10

one as Exhibit 1. I'm just going to call this P-1.

11

That

will be Plaintiff's 1. And, Chris, so that you

12

know

what I'm showing him, I'm actually showing him

13

the soil boring report. And it's on our exhibit

14

list. And I'll just ask you --

15

 

MR. GEORGE: You're talking about your

16

Exhibit 331, John?

17

 

MR. CARROLL: I don't know the number off the

18

top of my head, Chris.

19

 

MR. GEORGE: But it's the soil boring report,

20

it has six different borings, and it's dated

21

February 2, 2010?

22

 

MR. CARROLL: Let me see what that date was on

23

there. I think that's right.

24

 

THE WITNESS: Yes.

25

MR. GEORGE: Okay.

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1

 

MR. CARROLL: I think I'm going to ask Drew to

2

take

a couple of minutes and just familiarize

3

himself so he can identify this report here.

4

 

THE WITNESS: (Views document.)

5

BY MR. CARROLL:

6

Q

Does that look to be the report that you

7

prepared that day?

8

A

Yes.

9

Q

And if I could, who hired you to perform that

10

report?

11

A

My client was Bernadette Halloran, with -- I

12

forget the -- WaterSound Community or Property,

13

Properties, whatever it was.

14

Q How did Bernadette come to find you?

15

A I did work for -- I'm a partner in another firm

16

called Black Hawk Engineering, and we are the engineers

17

of record, I guess you'd say, for the St. George Island

18

Plantation. So when she was employed there, I worked

19

with her quite a bit on roadways, and we redid the

20

airport and some other stuff.

21

Q

Was Bernadette the property manager there at

22

St. George Plantation?

23

A

Yes.

24

Q

Did you know her for quite a while? Had you

25

done a lot of work for her?

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1

 

A

I knew her, let's see, since around probably

2

2007, somewhere like that, but I just knew her

3

professionally. She was our client. She was our kind of

4

liaison to the multiple boards at the St. George Island

5

Plantation, so we would deal with her kind of and feed

6

through to the boards. She was kind of our point of

7

contact down there.

8

 

Q

Do you remember much about the conditions that

9

day?

10

 

A

At WaterSound?

11

Q

Yes, at WaterSound.

12

A

I do. When I look back over the report, I

13

mean, I don't just -- you know, I've done a lot of work

14

since then. This was in February of 2010. But I do

15

remember drilling around the electrical transformer and

16

on the -- I guess that would be the west side of your

17

home, I think along the main roadway that goes over to

18

that pond, I think.

19

 

(Plaintiff's Exhibit No. 2 was marked.)

20

MR. CARROLL: Chris, I'm going to show Drew a

21

 

couple of pictures that were exhibits from the

22

Rosenheim deposition, and I'm going to call these

23

Plaintiff's 2. I'm just going to ask Drew, if he

24

could, does this look like the home that was at the

25

location?

ACCURATE STENOTYPE REPORTERS, INC.

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1

 

MR. GEORGE: John, are those photographs on

2

your

list of trial exhibits?

3

MR. CARROLL: Yes. The Rosenheim deposition

4

and all the exhibits to it are on my list of trial

5

exhibits.

6

 

MR. GEORGE: Okay.

7

THE WITNESS: Yes. I remember this feature

8

quite a bit. We were working right over in here.

9

 

MR. CARROLL: That's what I was going to do.

10

Chris, you don't have the benefit of being here, but

11

I'm going to try and ask Drew to look at his soil

12

boring report. And then, if he could, I'll give him

13

a magic marker and ask him to just highlight the

14

areas on these photos of Lot 24 where he thinks we

15

may have conducted the study. If you'd take this

16

magic marker.

17

 

MR. GEORGE: Is there a boring location figure

18

attached to his soil borings report?

19

 

MR. CARROLL: Yeah. I think the problem is the

20

sole

boring report is out of scale. And it might be

21

better for everybody in the long run to have him

22

authenticate a little bit on these actual photos.

23

BY MR. CARROLL:

24

Q If you could, try and --

25

A It's too bad it's not an aerial looking down.

ACCURATE STENOTYPE REPORTERS, INC.

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1

It was over in here, was the primary area. And then we

2

drilled somewhere, just at one boring back here as well.

3

Q

We were talking about a transformer, I think,

4

and I wonder if that transformer can be seen near this

5

stop sign or not in this photo.

6

A

That's hard to tell. It's generally right

7

in -- somewhere in this area.

8

Q

You can go ahead and just put a circle on there

9

where you think it was, best that you can.

10

A

It's down here somewhere.

11

Q

And I'll just have you just put a number one by

12

the first circle you made and a number two by the second.

13

On your soil boring report, there was one location that

14

had five borings done and another one that had just one.

15

Which one of those circles had the five borings done by

16

it?

17

A

Number one.

18

Q

And number two, how many borings did you do

19

there?

20

A

Just one.

21

Q

Now, what I'm going to ask you is, if you

22

could, right after you left that day -- well, let me just

23

ask you, if there's a way for you to know, do you know

24

what day you actually conducted that study?

25

A

I could look on my phone and probably find out.

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1

Q

Okay.

2

A

You're talking about the actual like weekday?

3

Q

I'm sorry. The date, that's all I mean.

4

A

February 2nd.

5

Q

Okay. There's an e-mail that was sent out in

6

the case.

7

 

MR. CARROLL: And, Chris, I don't have the

8

exhibit number, but it was part of David Lilienthal,

9

Mary

Rosenheim, and I believe Jack Luchese's

10

depositions, which were all exhibits to the case.

11

BY MR. CARROLL:

12

Q

I wrote an e-mail or I purport that I wrote an

13

e-mail on February 2nd, but I didn't write it until

14

3:30 in the afternoon. Do you know if you were at this

15

site before 3:30 or after 3:30 in the afternoon?

16

A

I was there before.

17

Q

If you could, just glance over this e-mail.

18

We'll just call it Plaintiff's 3. I wanted to see if

19

that's an accurate representation of what happened out

20

there that day.

21

 

(Plaintiff's Exhibit No. 3 was marked.)

22

MR. GEORGE: John, can you tell me the date and

23

the time it was sent and who it was from and who

24

it's

to?

25

MR. CARROLL: Sure. It was on February 2nd,

ACCURATE STENOTYPE REPORTERS, INC.

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1

2010, at 3:30 in the afternoon, and it was to you.

2

It was to Jack Luchese and to Gary at Dunlap,

3

Shipman.

4

 

THE WITNESS: (Views document.)

5

BY MR. CARROLL:

6

Q

That e-mail that you just read, do you know if

7

that's a fairly accurate assessment of what you found out

8

there that day?

9

A

Well, I mean, some of the terms I'm not real

10

sure, you know, these binders that you're talking about,

11

"lead me to believe that cured emulsion or binder." It

12

seems logical. And I'm not sure, with pressure-treated

13

wood and other materials, a wash-out or lay-down zone,

14

you know, I'm not exactly sure what you meant there. I

15

can say, on the stuff I encountered, you know, six inches

16

of asphalt, in some spots three inches, areas with

17

limestone gravel, buried roots and limbs one inch in

18

diameter, that stuff is clearly a fill material of some

19

sort. Whether it was smoothed out or just dumped, I

20

don't know.

21

Q

That's a good question to talk about now. That

22

material that you found in your soil borings, is it

23

naturally occurring in that area?

24

A

No.

25

Q

Is it naturally occurring anywhere, to find

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1

that kind of stuff under --

2

A

No. Normally, you -- organic material like

3

this, what I was calling peat-type material, that is very

4

common in coastal areas where either the area at one time

5

was filled and that's the old organic mat or a marsh type

6

sediment or where sea level through time has

7

transgressed, as we call it, and the beach kind of

8

horizon overlays the old peat horizon. That's what we

9

call transgression sequence.

10

 

But the limestone gravel, you don't get

11

limestone gravel lenses in that coastal environment.

12

What we call the classic wedge there at the coast, which

13

is an unconsolidated sediment, it doesn't lend itself to

14

have limestone there. And asphalt, definitely not.

15

That's a man-made product.

16

Q

While we're talking about the limestone on

17

there, where is that classically found; do you know?

18

A

Limestone in that area should be mined --

19

probably the closest mine I can think of off the top of

20

my head would be somewhere up in the uplands, Marianna,

21

I-10 corridor, or probably somewhere from Carrabelle.

22

Q

That's a pretty good ways from WaterSound. Do

23

you know about how far that it from WaterSound?

24

A

As a crow flies, Carrabelle to WaterSound is a

25

hundred miles probably. I'm not real familiar with the

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1

limestone pits north of the Destin area. There's

2

definitely limestone at depth up there. Marianna Caverns

3

is limestone.

4

Q

We were talking about just a second ago about

5

the word "pits" or "mines." Does that classically occur

6

within the first three feet of the surface, or is it at a

7

deeper depth?

8

A

Well, a mine, typically your limestone mines

9

are not -- typically you don't get limestone crushed up

10

in gravel like this. This is what street guys call --

11

this would be lime rock. This is crushed up aggregate.

12

Limestone comes out of the ground, either you blast it or

13

you pound it, and you get big boulders. And then you

14

mechanically break the boulders down to the size that you

15

need. So you really don't get -- limestone doesn't

16

weather like granitic rock or anything, where you get

17

little pea gravel or anything. If it was rolling around

18

in a stream, it would just degrade into nothing.

19

Q

Okay. What about the asphalt that you

20

mentioned in the report, do you remember picking any of

21

it up and breaking it that day?

22

A

I don't recall.

23

Q

What I'm wondering specifically is do you

24

remember the presence or lack of presence of aggregate in

25

that asphalt material?

ACCURATE STENOTYPE REPORTERS, INC.

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1

A

I do, but I've just read your e-mail that

2

stated that, and I think I recall you and I talking about

3

that, that it looked more like it was the slag or kind of

4

like cold patch, but I don't truly remember that off the

5

top of my head. I don't know if it's just been refreshed

6

from this or not.

7

Q

That's fair. If it had aggregate in it, could

8

you break it with your hands; do you know?

9

A

Asphalt should not be -- you should not be able

10

to break the aggregate in asphalt with your hand. It

11

should be a granitic rock, probably out of southern

12

Alabama, somewhere like that.

13

Q

Do you know what the ingredients are that make

14

asphalt or any of the ingredients from asphalt?

15

A

Yes. You have an aggregate. You have some

16

sand. You have the emulsifiers and the kind of glue, if

17

you want to say, which is the tar and petroleum

18

constituents. And it kind of binds that in so it's what

19

we call a flexible pavement. But it's kind of a mixture

20

of sands and kind of a coarse fraction of sediment, and

21

then the clean sand is aggregate, and then your asphalt,

22

your bituminous materials.

23

Q

We were just talking about the glue, I guess

24

you said. And I'm just wondering, do geologists know

25

about that kind of stuff in their business? Is that

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1

something that you need to understand or be able to

2

identify?

3

A

We're not, per se, in school trained. Roadway

4

construction and the products to make roadways are not in

5

my formal education. I've been doing geotech work for

6

most of my time, so just from working with road engineers

7

and being affiliated with a structural and civil company

8

that designs roads, I know what I need to.

9

Q

That's a great time to bring it up. What does

10

a geologist like yourself normally do? What's your

11

function as your job?

12

A

Most times it's to conduct testing. Either we

13

call it materials testing on roads, asphalt, concrete,

14

sieve samples, run plasticity limits on samples to tell

15

kind of what state the soils are in, and really anything

16

that's dealing with subsurface. And you can cross over.

17

There's groundwater, and there's all kinds of things,

18

environmental contaminant plumes.

19

Q

Do geologists interpret or order for any reason

20

compaction tests on soil?

21

A

Yes.

22

Q

And what's a classic, I guess you'd say --

23

we're talking about in residential construction anyway.

24

Why would somebody normally order a compaction test on

25

soil in residential construction?

ACCURATE STENOTYPE REPORTERS, INC.

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1

A

Well, normally, any time that you have -- I

2

just know it by code. And within the Florida building

3

code it states, anywhere that there has been known fill

4

or fill over 18 inches, you're required to get compaction

5

tests, or anything where the building inspector deems

6

that they know that you need compaction tests.

7

 

And all of our structural drawings -- and we do

8

compaction tests -- Leon County requires them for every

9

slab, every pad, under every structure that's got fill.

10

Q

What's the concern if somebody builds a home on

11

uncompacted soil?

12

A

The home will differentially settle. The soils

13

will compact with time. And since you now have a house

14

sitting on that soil, it will subside as the soils

15

subside.

16

Q

I understand. As a geologist, have you ever

17

heard the term "polycyclic aromatic hydrocarbons"?

18

A

Yes.

19

Q

Commonly I guess they're known as PAHs?

20

A

Uh-huh (indicating affirmatively).

21

Q

Can you describe what a PAH is?

22

A

PAH is -- I used to do a lot of environmental

23

work. And PAHs are the heavy constituents when you run a

24

mass spectrometer on petroleum constituents, and they're

25

the constituents that -- on a mass spectrometer, they're

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1

on the heavy side of the curve. They're a product of

2

diesel fuels, heavy oil fuels. At least in the

3

environmental world, that's the way I know them. I'm

4

sure there are other chemicals that they are derived

5

from.

6

 

They're a particular, not element, but the

7

carbon chain that makes them, they're like a species.

8

They're their own piece, but they can be mixed in with a

9

whole bunch of other stuff to form fuel.

10

 

Q

Do you know if PAHs are considered a

11

carcinogen?

12

 

A

PAHs, there's many -- there's a couple

13

different elements, or not elements, there's a couple

14

different chemicals that are within the PAH

15

classification. I do think they are. I'm not sure.

16

 

Q

I'm going to slightly change my line of

17

questioning. I just wondered, are PAHs a byproduct or

18

are they evident in the binders or emulsions that we

19

talked about to form asphalt? And when I say the

20

emulsions, I'm talking about just the petroleum-based

21

ones.

22

 

A

I'm not sure.

23

Q

Do you know anything about the effects of PAHs

24

reaching the groundwater? Is there any concern about

25

that amongst geologists, or is it something that's

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1

usually studied?

2

A

Uh-huh (indicating affirmatively).

3

Q

It is?

4

A

Uh-huh (indicating affirmatively).

5

Q

What's the concern? Why would somebody look

6

into that type of thing?

7

A

Well, most times your PAHs are within the --

8

DEP has a certain -- in Florida at least, DEP has a

9

certain criteria. When you expect a site to have

10

contamination, you usually fall back on the DEP

11

guidelines that you test for VOCs, PAHs, some other --

12

they've got stuff called the FL-PRO, the Florida

13

Petroleum Range Organics. And PAHs are part of that.

14

 

So I don't know that table out of the Florida

15

Statutes off the top of my head, but there's a reason

16

we're looking for PAHs. And that would have to mean

17

there's a threshold either established by EPA or by DEP

18

that they don't want you to exceed. That's my thought,

19

what I would think is the reason we look for it.

20

Q

That's very fair.

21

MR. CARROLL: Chris, I'm going to show Drew

22

Exhibit L to the second amended complaint, and that

23

is somewhere around P-36, Plaintiff's 36,

24

Plaintiff's 236 rather. I'm going to call it for

25

purposes of this deposition Plaintiff's 4.

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21

1

 

(Plaintiff's Exhibit No. 4 was marked.)

2

BY MR. CARROLL:

3

Q

And I just wanted to let you take a second and

4

familiarize yourself with those photos. I think there's

5

three of them there.

6

A

Okay. (Views document.)

7

Q

I'm going to actually letter them. I'll go

8

with A, B and C, just to make the record clear. I don't

9

know if I'm writing upside down or not. In photo C,

10

which I think is page three of that exhibit, I allege

11

that that's a photo of the footing line at Lot 24. And

12

I'm just wondering if you notice anything peculiar about

13

the soil in that photo, in your opinion, as a geologist.

14

 

MR. GEORGE: Object to form.

15

THE WITNESS: What was that?

16

BY MR. CARROLL:

17

Q He just objected to form. You can answer.

18

A It looks like to me there's -- if that's a

19

normal footer, I'm expecting it to be 16 inches deep

20

maybe. Maybe that's a little deeper, 24 inches. And

21

there's three different very distinct soil layers, which

22

I wouldn't expect.

23

Q

When you say that you wouldn't expect, is that

24

a natural occurrence near the coastline, to see something

25

like that in a footing path?

ACCURATE STENOTYPE REPORTERS, INC.

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1

A

I would not expect it.

2

Q

And I guess, just for record purposes, can you

3

tell me why you wouldn't expect to see that?

4

A

Well, when you get -- these are what we call

5

unconformities here and here. These differences between

6

the sediment packages indicate some sort of big

7

environmental change. If they were deposited naturally,

8

there would be something shifted and changed

9

significantly to get this white band, and then something

10

changed again significantly to get this reddish brown

11

band above it.

12

 

Typically, you don't get that. You know, maybe

13

at the end of a barrier island or, you know, where the

14

island is moving around a bit, but that's -- just working

15

at the coast, I wouldn't expect to see that.

16

Q

For Chris' purposes anyway and for the record,

17

what we're talking about are these more or less three

18

distinct stripes of soil that you see in that photo. Is

19

that correct?

20

A

Yes.

21

Q

I think I heard you say you expect to see that

22

from some significant -- what was the word you said?

23

A

You'd expect an environmental change, some sort

24

of depositional environment change to get -- if that was

25

truly deposited sediment, you would have to have either

ACCURATE STENOTYPE REPORTERS, INC.

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1

some sort of catastrophic landslide or something to get a

2

transition that sharp, or say like a huge hurricane that

3

blasted over the coast and we got a new bit of sediment

4

down and then the coast came back to its old spot and we

5

got new deposition on top of that, something pretty

6

significant.

7

Q

Let me go ahead and ask you then, do you know

8

of any satellite imagery programs where somebody might go

9

to refer and look at lots like this one to see if there

10

were any major events over time?

11

A

It's been a while. I did my master's work on

12

coastal geology at the tip of Cumberland Island. And I

13

used stuff from -- because I was mapping out storms and

14

sediment packages like this on a tip of an island. And

15

I'm pretty sure DEP has historical hurricane paths to

16

like the 1800s. And then satellite imagery, DOT has a

17

whole swath of aerial coverage back to the fifties. And

18

I'd have to look. I can't recall where else I pulled

19

data from.

20

Q

What are some of the other ways that one would

21

explain how soil could come to look like that? Are there

22

any other ways?

23

A

Well, without seeing the soil and being able to

24

see the textures or anything in it, because to me, this

25

looks like -- you know, it's hard to tell in these

ACCURATE STENOTYPE REPORTERS, INC.

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1

photos -- but fill, fill material.

2

Q

When we talk about fill, is it common in new

3

developments, for the horizontal development of the

4

neighborhood, for them to actually change the grade for

5

certain reasons?

6

A

Yes.

7

Q

And they'll do that by bringing in fill?

8

A

Either fill or it can be off-site fill, it can

9

be on-site fill. You know, value-engineering-wise you

10

try to what we call balance a site, where you just shift.

11

If you're cutting over here, you're filling over here, so

12

that you're not hauling off material or anything.

13

Q

I understand. That makes good sense. In the

14

first two photographs, they're called A and B -- let me

15

see if I can help in any way. There are some things that

16

I allege that I found in that same footing path, and I

17

just wondered, do you know if that's a natural

18

occurrence, or could that be man-made?

19

A

Well, to me, from the photographs, especially

20

in A, it looks like there's a two-by-four facing me. So

21

that's -- at least that two-by-four and it looks like

22

these concrete blocks would be man-made material.

23

Q

Let me ask this question. There's a program

24

that's called Google Earth. Have you ever explored that

25

at all?

ACCURATE STENOTYPE REPORTERS, INC.

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1

A

Yes.

2

Q

Do you know if it has satellite imagery on it?

3

A

Yes.

4

Q

Do you know if you can slide a slide on there

5

to see different dates, satellite imagery from different

6

points in time?

7

A

I'm fairly sure Google Earth lets you rotate

8

into older imagery. I'm fairly sure. I know DOT you

9

can.

10

Q

Why does DOT save satellite imagery? What's it

11

used for?

12

A

Well, most of their stuff isn't satellite.

13

It's aerial photography taken from just a camera hanging

14

out of the airplane, to simplify it. They use it a lot

15

for road alignments, looking at best areas to put roads,

16

because even if you have a surveyor on the ground,

17

sometimes you can look at the imagery and see a wetland

18

pocket that you would have to go around, because any

19

crossing like that is extra cost, retaining walls,

20

bridges, remediation, et cetera. So they do it for

21

alignments, for historical data, looking at floods. We

22

use them for flood stuff a lot.

23

Q

Is there any way for somebody to know about

24

some of the topography just by looking at those photos?

25

A

Yes, you can. It's called a -- if you have two

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1

of the same photos side by side, there's a thing called a

2

stereoscope, where you put these glasses on over a fixed

3

kind of plane table, and you can look at them, and it

4

gives you some sort of topographic relief out of those.

5

Google Earth you can.

6

Q

Pretty neat. I've never heard of that one.

7

What about something a little more simple? Are there

8

usual assumptions that can be made when you see actual

9

wetlands in something, that helps you determine the

10

topography there --

11

A

Yes.

12

Q

-- in relation to the surroundings?

13

A

Uh-huh (indicating affirmatively).

14

Q

Are wetlands normally higher ground or lower

15

ground?

16

A

Lower ground.

17

MR. CARROLL: Chris, I'm going to show Drew a

18

couple of things that are in the photo. And they

19

were

exhibits to Mary Rosenheim's and Bridget

20

Precise's.

21

BY MR. CARROLL:

22

Q

We have an exhibit here that's called

23

Plaintiff's Exhibit 5, and I just wondered if that's

24

something that's naturally occurring along the beach

25

underground.

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1

A

No, I would not expect that.

2

Q

This rod here, is that something that's

3

naturally occurring along the coast underground?

4

A

No. It looks like a number six or seven bar,

5

rebar.

6

Q

Does rebar deteriorate when it's underground?

7

A

Yes.

8

Q

Does it oxidize or anything?

9

A

Yes.

10

Q

What about this one? It's called Plaintiff's

11

Exhibit 4, and I think I'm seeing it in photograph B, but

12

I just wondered if you could identify what you think that

13

is.

14

A

It looks like some sort of rivet system, where

15

these star screws come out maybe and the rivet pops off

16

and you use it for --

17

Q

Have you ever come in contact with a device

18

that's called a powder actuated fastener?

19

A

Yes.

20

Q

Do you know what a power actuated fastener is?

21

A

Yeah. It's like for attaching your bottom wall

22

plate to a floor, something like that, to a slab.

23

Q

Why would somebody use a powder actuated

24

fastener to fasten something to a sill, I think you said?

25

A

Well, most times it's so you don't have to

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1

pilot drill a hole and put, you know, a big screw or

2

something down through a plate. You can just shoot it

3

in. These are like little .22 cartridges.

4

Q

Well, that's what I was going to ask you is,

5

when they say powder actuated, what is the powder?

6

A

If I recall, I think it's gun powder. I think

7

it's just -- it's got a primer and there's powder. Once

8

you detonate the primer, the powder explodes. And since

9

it's contained in a casing, it pushes the nail head out.

10

Q

This document here is going to be the next

11

exhibit. Unfortunately, I don't remember what number

12

we're on. I think we were on 4.

13

A

I think 4.

14

(Plaintiff's Exhibit No. 6 was marked.)

15

Q

I'm going to call this Plaintiff's 6, just so

16

we don't accidentally duplicate. You described what a

17

powder actuated fastener was without looking at anything.

18

Is that the safety data sheet for a powder actuated

19

fastener?

20

A

Yes.

21

Q

What is a safety data sheet or a material safe

22

handling sheet?

23

A

It's a standardized MSD sheet. It's a

24

standardized sheet that tells anybody who looks at it,

25

employees, employers, anybody, the chemical makeup of the

ACCURATE STENOTYPE REPORTERS, INC.

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1

constituent, any kind of health safety issues, what you

2

have to do if you get it on you, just kind of a general

3

sheet over any kind of applicable item that may go on

4

with the material.

 

5

Q

Let me just ask you about that.

I guess in the

6

very beginning it says ingredients. And I just wondered,

7

the ingredients that are listed there, do you recognize

8

any of those terms from geology?

 

9

A

I mean, through chemistry classes, I've seen

10

them. I couldn't tell you their elements or anything.

11

Nitroglycerin, it's pretty obvious what it is.

12

Q

I'm going to skip down to this and just see,

13

there's probably a hundred ways to dispose of things like

14

this. And I just wondered if there are any listed on

15

here. Let's see. Here it is, waste disposal. Under the

16

waste disposal section there, I want you to just

17

familiarize yourself with that.

 

18

A

Okay. (Views document.)

19

Q

Is it okay to bury these to dispose of them?

20

A

I would not think so, if these are still live

21

rounds, because it says misfires, and misfire would be a

22

round that did not ignite. No. They're supposed to --

23

I'm just reading this. Disposal method is in a burner

24

specifically designed to destroy ammunition.

25

Q

Well, in your experience anyway, how many cases

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1

of these is it okay to bury before you need to do some

2

kind of remediation?

3

 

MR. GEORGE: Object to form.

4

BY MR. CARROLL:

5

Q You can answer, if you want to, or if you --

6

A I don't really -- I don't know the life cycle

7

of those, how they leak. I don't know enough about them

8

to answer that logically.

9

Q

Would you need to have information contained on

10

one of these material data safety sheets in order to make

11

that determination?

12

A

If I knew the -- the only way I know right now

13

to quantify how many you would need to leak to cause an

14

issue, I'd need to see how many parts per million or

15

parts per billion of the nitroglycerin, say, is in them,

16

and then see how much is allowed as target thresholds in

17

the Florida Statutes. And once you added up enough of

18

them to exceed that, I could tell you the number.

19

Q

That makes good sense. Go back to the

20

beginning here. I think you said that Bernadette

21

Halloran was the one who hired you. Did you talk to

22

anybody else before you came to the site? Or I should

23

say anyone associated with WaterSound anyway.

24

A

No, not that I recall.

25

Q

Did Bernadette tell you specifically to look

ACCURATE STENOTYPE REPORTERS, INC.

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1

for things like powder actuated fasteners?

2

A

No.

3

Q

There is something I had a question on on your

4

report. I want to make sure I'm understanding this.

5

There's something on here that I'm seeing. I guess it

6

says, on page one of your report, let's see. I see this

7

word "roadway base material." Is that what we were

8

talking about before, the limestone and things like that?

9

A

Yes.

10

Q

And then there's something that says "small

11

pockets of dark brown organic rich material." Do you

12

know what those were made up of?

13

A

No, because I didn't -- wasn't requested to

14

actually break those down. But more than likely it was

15

leaf litter, root balls. I mean, most times when we hit

16

an organic pocket or zone, it's usually sticks, twigs,

17

leaves, grass.

18

Q

The day that we went there, do you remember

19

about how many people were there that day?

20

A

I recall I got to the site, I got to the

21

entrance, met Bernadette, came down, met you. And I

22

think Bernadette, you and I pretty much were there

23

drilling, and then some other gentleman showed up towards

24

the end.

25

Q

When we talk about this other gentleman, do you

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1

remember a man coming that had silver or gray-colored

2

hair, towards the end?

3

A

I think so. I think he drove a big black

4

Suburban or big --

5

Q

That was going to be my next question, but you

6

answered it for me. Do you remember if that gentleman

7

took any photos when he was there?

8

A

Yes.

9

Q

Did he take photos?

10

A

Yes.

11

Q

I've got to ask. Was there anything that you

12

pulled out of the ground in your soil samples that was

13

not naturally occurring there?

14

A

Was there anything I pulled out of the ground

15

in my soil samples that was not naturally occurring?

16

Q

Yes.

17

A

Yes.

18

Q

Okay. Did you take more than sand and rocks

19

out of the ground that day when you did your soil

20

borings?

21

A

Yes.

22

MR. CARROLL: Well, that's all I have. Thanks

23

a lot.

24

 

CROSS-EXAMINATION

25

BY MR. GEORGE:

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1

 

Q

I have a few. Can you hear me okay?

2

A

I'm sorry. Can you repeat that?

3

Q

I said I have a few questions. Can you hear me

4

okay?

5

 

A

Yes, sir.

6

Q

Let me ask you, on this boring location figure

7

that's part of your borings report --

8

 

A

Yes, sir.

9

Q

-- can you tell me if those boring locations

10

were on the lot on which Mr. Carroll was building a house

11

or on the common area immediately adjacent to the lot on

12

which he was building a house?

13

 

A

I don't know if there were lot survey flags

14

when I was there, and I don't recall being more than a

15

few feet away from the electrical transformer, but I

16

don't know, to tell you the truth. I don't recall seeing

17

survey flags.

 

18

 

Q

I'm looking at the letter dated February 9,

19

2010, from you to Bernadette Halloran.

20

 

A

Yes.

21

 

MR. GEORGE: John, it's marked page 862 in your

22

 

production.

23

 

MR. CARROLL: Okay.

24

BY MR. GEORGE:

25

 

Q

And the last sentence in the second paragraph

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1

says that when you arrived, the owner, John Carroll, was

2

present to determine the boring locations. Did John

3

Carroll, in fact, pick the locations on which you took

4

your bore samples?

5

A

I think that Mr. Carroll pointed out areas, and

6

then I just drilled holes in multiple areas.

7

Q But in the areas that he pointed out?

8

A I assume so, if I put that in the report. I

9

don't recall. Bernadette was there with me, and I don't

10

really recall.

11

Q

But you wouldn't have put that in your report

12

if it wasn't true, would you?

13

A

No, sir.

14

Q

At any time while you were out there that day

15

did Mr. Carroll mentioned to you any concerns he had

16

about the possibility of there being powder actuated

17

fasteners in the subsurface soil at that lot?

18

A

No, sir, not that I recall.

19

Q

While you were out there, did Mr. Carroll

20

mention having any concerns about there being PAHs or any

21

kind of cancer-causing material in the subsurface soil on