UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSI 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

570811 

COMPLAINT COUNSEL'S MOTION TO COMPEL DISCOVERY WRONGLY 

WITHHELD BY DR. DAVID STEWART 

Pursuant to Rule 3.38(a), Complaint Counsel respectfully requests that the Court order 

Respondent ECM Biofilms, Inc. ("ECM") to supplement, inunediately, its incomplete responses 

to document requests issued in November regarding ECM's sophisticated customer defense. 

Specifically, ECM engaged Dr. David Stewart to opine regarding how ECM's allegedly 

sophisticated customers understand biodegradation. Because Dr. Stewart wrongly withheld 

information highly probative (indeed, potentially dispositive) of ECM's sophisticated customer 

defense, we ask the Court to order ECM to provide all information within its control that 

responds to outstanding document requests regarding this defense. 

BACKGROUND 

A. David Stewart's Manufacturer's Pilot Study 

Last week, Dr. Stewart testified that be conducted a "manufacturers' pilot study" for 

ECM. 1 To facilitate this "study," ECM (likely CEO Robert Sinclair) apparently selected a subset 

of its customers whom interviewers working for Dr. Stewart would contact (as well as the 

particular employees at those businesses interviewers would contact).2 Dr. Stewart's 

interviewers then asked ECM's hand-picked customers, among other things: "How would you 

1 CXA: 1 at 186:20-22. 

2 /d. at 201 :3-6 ("Q: .... ECM not only provided the [] companies your researchers 

would speak with but the specific people, correct? A: That's correct."); id. at 188:24-189: 1 

(testifying that "it's my understanding that Mr. Sinclair or something in his organization" 

developed the list). 
PUBLIC DOCUMENT 

define biodegradability?"

3 Notably, Dr. Stewart further testified that-despite receiving specific 

individuals' information-he apparently was able to reach only ten ECM customers out of list 

containing approximately 150 ECM customers.

4 

Most important, four of the ten cherry-picked customers gave answers inconsistent with 

ECM' s position that, notwithstanding its marketing claims, its customers understand that ECM 

Plastic will take much longer than advertised to biodegrade. In particular, one hand-picked 

customer defined "biodegradability" with reference to "[t]he ability to make materials dissolve 

within a year."5 Two other responses referenced ASTM tests D5511 and D6400, both of which 

are short-term tests that run for less than a year

6 (and Dr. Stewart agreed that, given the 

timeframes of these tests, these ECM customers "understand[) biodegradation is something 

that happens in less than a year.").

7 A fourth respondent defined "biodegradation as 

something that occurs "within 1 to 3 years. "

8 Suffice it to say, ECM did not instruct Dr. Stewart 

to convert the pilot study into full-scale research9 (Dr. Stewart attributed this largely to allegedly 

insufficient time).

10 

Significantly, notwithstanding the fact that ECM hand-picked the survey respondents, 

ECM, its counsel, and Dr. Stewart failed to produce the list of their names to us: 

QUESTION: Have you ever seen a copy of the list? 

3 CXA:2 at Q6. 

4 CXA:l at 209:21-25. 

5 CXA:3 at 3 (emphasis added). 

6 !d. 

7 CXA:1 at 213:1-215:3 (emphasis added). 

8 CXA:3 at 3. 

9 CXA:1 at 217:4-6. 

10 See id. at 219:14-220:1. Dr. Stewart testified that he only needed to interview 

approximately 40 more ECM customers to complete a full-scale study, see id. at 220:2-8 

(testifying that he needed 50 overall), and it is unclear why he could not have done so in a few 

days. See CXA:4 (excerpted and redacted to preserve confidentiality). In fairness, Dr. Stewart 

also denied knowing "all of the reasons" that may have led to ECM's decision not to run the pilot 

study as a full study. See CXA:1 at 219:14-17 ("Q: Why was the pilot study not rerun as a full 

scale study? A: I don't know all of the reasons that may have gone into it."). 

2 
STEWART: 

QUESTION: 

STEWART: 

QUESTION: 

STEWART: 

QUESTION: 

STEWART: 

QUESTION: 

STEWART: 

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I was provided the list, yes. 

Why was a copy of that list not produced to Complaint 

Counsel? 

Because it's confidential. 

Was there any other reason? 

I [have] an ethical responsibility to protect the identity of 

survey respondents and so if defense counsel wants to 

provide it since they provided it to me they're welcome to 

do that[.] 

ECM has a copy of the list, correct? 

That's actually where I obtained it. 

Just so the record is clear, you obtained it from Emord & 

Associates and you infer that Emord & Associates obtained 

it from ECM? 

That's fair, yes.

11 

Although ECM produced the list to Complaint Counsel yesterday evening, 

12 it remains 

impossible to determine which companies (or persons) on the list were interviewed, or who gave 

which answers. This is because the survey results identify respondents by number, and 

Complaint Counsel has no way to correlate the numbers on the results with Mr. Sinclair's list of 

potential respondents. Indeed, Dr. Stewart testified: 

QUESTION: So Complaint Counsel based on information that has been 

produced to us to date cannot identify the manufacturers or the 

persons that participated in the manufacturer's [study], correct? 

11 CXA:l at 187:3-188:13. 

12 See CXA:4 (excerpted and redacted to preserve confidentiality). ECM implied that it 

produced this document to Complaint Counsel as part ofECM's initial disclosures. This is false, as the document ECM produced last night is dated "Sunday, May 4, 2014." See id. 

Additionally, several large current customers are missing from the May 4 list ECM provided to 

Dr. Stewart, and the May 4 list contains at least one company that is not a current ECM 

customer. Thus: (1) on or about May 4, Dr. Stewart received a partial list ofECM customers he 

should interview (the list appears both over and under-inclusive); (2) before his deposition, Dr. 

Stewart produced a report of"pilot study" results that identified survey respondents only by 

number; and (3) after his deposition, Dr. Stewart produced the May 4 list, which identifies 

potential survey respondents only by name. 

3 
PUBLIC DOCUMENT 

STEWART: That is correct. 13 

Producing the list with names but no numerical identifiers did not solve the problem because the 

survey data contains only numerical identifiers, not names. 14 

B. Complaint Counsel's Document Requests 

Seven months ago, Complaint Counsel issued two document requests covering the 

information at issue: 

Request No. 11 

Provide all documents, whether prepared by or for ECM or any other entity, 

including any advertising agency, regarding consumer perception, 

comprehension, or recall (including, but not limited to, copy tests, marketing or 

consumer surveys and reports, penetration tests, recall tests, audience reaction 

tests, and communication tests) of ... biodegradability in general. 

Request No. 12 

Provide all documents that support or call into question your contention that 

your customers or distributors are sophisticated purchasers. 15 

ECM has a duty to supplement its responses "in a timely manner." See Rule 3.3l(e)(2). 

LEGAL STANDARD 

Rule 3.31(c)(l) provides that "[p]arties may obtain discovery to the extent that it may be 

reasonably expected to yield information relevant to the allegations of the complaint, to the 

proposed relief, or to the defenses of any respondent." Although Rule 3.31 ( c )(2) limits 

discovery in certain respects, there is no statutory, constitutional, or common law "survey 

research" privilege. 

ARGUMENT 

ECM apparently makes two arguments against disclosure, both of which fail. First, ECM 

contends, or at least implies, that it cannot obtain the names of the ECM customers who 

13 CXA:1 at 261:21-25. 

14 As the Court undoubtedly will recall, this is reminiscent ofECM's tactic with respect 

to its initial disclosures. See Order (Feb. 4, 2014) at 2 ("The Revenues List, however, does not 

identify revenue by customer name, and the Customer List does not contain customer numbers. 

Thus, there is no way to tie the revenues figures disclosed to particular identified customers."). 

15 CCA:5 at 6-7. 

4 
PUBLIC DOCUMENT 

answered Dr. Stewart's telephone calls. However, even if one assumes that ECM anclfor its 

counsel do not have the information, requests under Rule 3.37(a) apply to all materials in ECM's 

"possession, custody, or control."16 As ECM itself explained, experts are agents of the party 

hiring them. 17 lfthe Court so orders, ECM can request the responsive information from Dr. 

Stewart. To the extent that the responsive information is physically within the custody of the 

research firm (California Survey Research Services ("CSRS")) that Dr. Stewart engaged to call 

the manufacturers ECM chose, 18 CSRS is Dr. Stewart's agent, ECM's agent, or both, and ECM 

thus retains control over the responsive information. 19 The Court should not permit ECM's shell 

game with this critical data to defeat reasonable, necessary, and probative discovery. 

Second, ECM implies that the names of interviewees are somehow protected. However, 

the telephone calls Dr. Stewart supervised were never a genuine survey. Rather, as discussed 

above, Dr. Stewart called specific ECM customers (that Mr. Sinclair apparently selected) and 

specific people at those companies (that ECM also selected). Assuming this is methodologically 

defensible from a survey research perspective (and it is not), the answers these ECM customers 

gave bear upon ECM's sophisticated customer defense just as much as answers ECM customers 

gave in depositions Complaint Counsel took-except that, obviously, ECM knows the names of 

those deponents and both parties have the opportunity to place responses to questions in 

16 (Emphasis added). 

17 ECM Mtn. to Serve Subpoenas (June 4, 2014) at 2 ("Here, the party receiving the 

subpoena [an expert for Complaint Counsel] is, in fact, an agent of the Federal Trade 

Commission[.]") (Emphasis added). 

18 ECM offered not to oppose a subpoena to CSRS, knowing that CSRS will almost 

certainly move to quash. CSRS likely would lose, but this approach would consume 

considerable time, and trial is less than a month away. 

19 Dr. Stewart was evasive regarding who physically possesses the information at issue, 

although it seems likely that at least CSRS does. See CXA: 1 at 260:14-17 ("[W]hat I'm telling 

you is that the identities of [the] individuals who participated in the pilot [study] are simply not 

going to be available to you."); id. at 260:18-22 ("Q: And to whom are they available? To you? 

A: I don't even know. Q: They're available to someone under your control? A: Potentially, 

yes.") (emphasis added). 

5 
PUBLIC DOCUMENT 

context.20 The Court cannot permit ECM to conduct de facto telephonic depositions of its 

customers without our participation or even disclosing whom its agent, Dr. Stewart, questioned? 1 

Finally, even if one considered the "manufacturer's pilot study" to be legitimate survey 

research rather than telephonic interviews with certain apparently cherry-picked ECM customers, 

there is no privilege protecting the names of such survey respondents from disclosure. The 

Commission's rules only protect information privileged "by the Constitution, any applicable act 

of Congress, or the principles of common law," Rule 3.31(c)(4), and no survey respondent 

privilege emanates from any of these sources. 

22 

CONCLUSION 

For these reasons, we respectfully ask the Court to grant Complaint Counsel's motion to 

compel ECM to produce information sufficient to establish which ECM customers provided 

which interview responses to Dr. Stewart's researchers. 

Dated: July 8, 2014 Respectfully submitted, 

ri ohnson (kjohnson3@ftc.gov) 

J an Cohen Ucohen2@ftc.gov) 

Arturo Decastro (adecastro@ftc.gov 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551; -2747; -3001 

Fax: 202-326-2551 

20 To the extent ECM offers not to rely on Dr. Stewart's interviews with its customers, 

this resolution unfairly penalizes Complaint Counsel. As discussed, the pilot study- which 

ECM and/or Dr. Stewart abruptly terminated- produced data that strongly favors our position, 

and we are entitled to rely on it. 

21 Indeed, Complaint Counsel has no way to know whether some of the companies Dr. 

Stewart called were companies that Complaint Counsel also deposed. 

22 Even if the law should be expanded to create a privilege protecting the names of 

individual consumers responding to surveys, Dr. Stewart supervised telephone interviews with 

businesses (ECM customers) ECM selected. At very most, ECM could request that the names of 

these customer/interview participants be treated as nonpublic information. 

6 
PUBLIC DOCUMENT 

STATEMENT CONCERNING MEET AND CONFER 

The undersigned counsel certifies that Complaint Counsel conferred telephonically with 

Respondent's counsel on July 3 regarding the issue raised herein. Respondent's counsel stated 

yesterday evening that Complaint Counsel should seek to subpoena CSRS rather than obtain the 

information at issue from ECM. 

Dated: July 8, 2014 

7 

Respectfully submitted, 

.£91-myn e Johnson (kjohnson3@ftc.gov) 

Jonathan Cohen Gcohen2@ftc.gov) 

Arturo Decastro (adecastro@ftc.gov 

Elisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551 ; -2747; -3001 

Fax: 202-326-2551 
PUBLIC DOCUMENT 

CERTIFICATE OF SERVICE 

I hereby certify that on July 8, 2014, I caused a true and correct copy ofthe foregoing to 

be served as follows: 

One electronic copy to the Office of the Secretary, and one copy through the FTC's e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-159 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic copy and one hard copy to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord 

Emord & Associates, P.C. 

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Eric Awerbuch 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: EAwerbuch@emord.com 

Date: July 8, 2014 

8 

Peter Arhangelsky 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Johnson (kjohnson3@ftc.gov) 

'- -J an Cohen (jcohen2@ftc.gov) 

Eisa Jillson (ejillson@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. M-8102B 

Washington, DC 20580 

Phone: 202-326-2185; -2551 ; -3001 

Fax: 202-326-2551 
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

)

In the Matter of )

)

ECM BioFilms, Inc., ) Docket No. 9358

a corporation, also d/b/a )

Enviroplastics International ) PUBLIC DOCUMENT

)

EXHIBITS IN SUPPORT OF COMPLAINT COUNSEL’S

MOTION TO COMPEL DISCOVERY WRONGLY

WITHHELD BY DR. DAVID STEWART
Complaint Counsel

Exhibit A

CX-A
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International 

) 

) 

) 

) 

) 

) 

Docket No. 9358 

PUBLIC DOCUMENT 

DECLARATION OF JONATHAN COHEN IN SUPPORT COMPLAINT COUNSEL'S 

MOTION TO COMPEL DISCOVERY 

DR. DAVID STEW ART WRONGFULLY WITHHELD 

In accordance with 28 U.S.C. § 1746, I declare under penalty ofpeijury that the 

following is true and correct: 

1. I am over 18 years of age, and I am a citizen of the United States. I am employed 

by the Federal Trade Commission ("FTC") as an attorney in the Division of Enforcement in the 

Bureau of Consumer Protection. I am an attorney of record in the above-captioned matter, and I 

have personal knowledge of the facts set forth herein. 

2. Attachment 1 hereto is a true and correct copy of a rough transcript of the 

deposition ofDr. David Stewart, taken on July 1, 2014. 

3. Attachment 2 hereto is a true and correct copy of interview questions interviewers 

working for Dr. David Stewart apparently used when interviewing ECM customers. 

4. Attachment 3 hereto is a true and correct copy of responses to interview questions 

ECM customers provided, as produced by ECM to Complaint Counsel. 

5. Attachment 4 hereto is a true and correct copy of a redacted excerpt of ECM 

customer contact information that was apparently provided to Dr. Stewart in May, 2014. 

6. Attachment 5 hereto is a true and correct copy of Complaint Counsel's First Set of 

Requests for Production of Documents, dated November 27, 2013. 

Executed this 8th day of July, 2014 in Washington, D.C. 
Complaint Counsel

Exhibit A

Attachment 1

CX-A:1
In the Matter of: 

ECM BioFilms, Inc., et al. 

July 1, 2014 

David Stewart, Ph.D. 

Condensed Transcript with Word Index 

For The Record, Inc. 

PUBLIC DOCUMENT 

(301) 870-8025 - www.ftrinc.net - (800) 921-5555 

CX-A:1 
1 (Pages 1 to 4)

Draft Copy

1

1 UNITED STATES DISTRICT COURT

2 BEFORE THE FEDERAL TRADE COMMISSION

3

4 In the Matter of )

 )

5 )

ECM BioFilms, Inc., )

6 a corporation, also d/b/a )

Enviroplastics International )

7 )

8

9

10

11

12 Tuesday, July 1, 2014

13

14 10877 Wilshire Boulevard

 Suite 700

15 Los Angeles, California

16

17

18

 The above-entitled came on for

19

investigational hearing, pursuant to Notice,

20

at 8:54 a.m.

21

22

23

24

25

2

1 UNITED STATES DISTRICT COURT

2 BEFORE THE FEDERAL TRADE COMMISSION

3

4 In the Matter of )

 )

5 )

ECM BioFilms, Inc., )

6 a corporation, also d/b/a )

Enviroplastics International )

7 )

8

9

10

11

12

13 DEPOSITION OF DAVID STEWART, Ph.D., taken on behalf

14 of the Plaintiff, at 10877 Wilshire Boulevard,

15 Suite 700, Los Angeles, California, commencing at

16 8:54 a.m., and concluding at 5:26 p.m., on Tuesday,

17 July 1, 2014, pursuant to Notice, before

18 CHRISTINA KIM-CAMPOS, CSR No. 12598, a Certified

19 Shorthand Reporter, in and for the State of

20 California.

21 ***

22

23

24

25

3

1 A P P E A R A N C E S

2

3 For the Federal Trade JONATHAN COHEN, ESQ.

Commission: 600 Pennsylvania Avenue, NW

4 Washington, D.C. 20580

 (202) 326-2551

5 jcohen2@ftc.gov

6

 BARBARA Y.K. CHUN, ESQ.

7 10877 Wilshire Boulevard

 Suite 700

8 Los Angeles, CA 90024

 (310) 824-4343

9

10 For the Respondent: ERIC AWERBUCH, ESQ.

 EMORD & ASSOCIATES, P.C.

11 3210 South Gilbert Road

 Suite 4

12 Chandler, Arizona 85286

 (602) 388-8899

13 parhangelsky@emord.com

14

Also Present: Shane Frederick

15

16

17

18

19

20

21

22

23

24

25

4

1 I N D E X

2 WITNESS EXAMINATION PAGE

3 David Stewart, Ph.D. By Mr. Cohen

4 Afternoon Session

5

6 DEPOSITION EXHIBITS INITIAL REFERENCE

7 Stewart Deposition Exhibit No. 1

Stewart Deposition Exhibit No. 2

8 Stewart Deposition Exhibit No. 3

Stewart Deposition Exhibit No. 4

9 Stewart Deposition Exhibit No. 5

Stewart Deposition Exhibit No. 6

10 Stewart Deposition Exhibit No. 7

Stewart Deposition Exhibit No. 8

11 Stewart Deposition Exhibit No. 9

Stewart Deposition Exhibit No. 10

12 Stewart Deposition Exhibit No. 11

Stewart Deposition Exhibit No. 12

13 Stewart Deposition Exhibit No. 13

14

15 QUESTIONS INSTRUCTED NOT TO ANSWER

16 None.

17

18

19 INFORMATION REQUESTED

20 None.

21

22

23

24

25

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CX-A:1
2 (Pages 5 to 8)

Draft Copy

5

1 LOS ANGELES, CALIFORNIA; TUESDAY, JULY 1, 2014

2 8:54 A.M.

3

4 DAVID STEWART, Ph.D.,

5 called as a witness by and on behalf of

6 the Plaintiff, being first duly sworn,

7 was examined and testified as follows:

8

9 EXAMINATION

10 BY MR. COHEN:

11 Q. Good morning, Dr. Stewart.

12 A. Good morning.

13 Q. My name is Jonathan Cohen. I'm here on

14 behalf complaint counsel at the Federal Trade

15 Commission. I understand that you've been deposed

16 any a number of times before I won't go over all the

17 rules. I know you know them, but if for any reason

18 you do have any questions or you need a break please

19 let me know.

20 A. I will do that. Thank you.

21 Q. Did you personally write every word of your

22 expert report in this case?

23 A. I believe so yes.

24 Q. Let's mark as Exhibit 1 your expert report

25 in this case. Mark Exhibit 1.

6

1 Q. And Professor Stewart it is the fact it is

2 the case that what's been marked as Exhibit 1 is

3 your expert report in this case. You can go ahead

4 and take a look. On?

5 A. Well there's some coloring that I don't

6 believe was in your original report.

7 Q. What coloring don't you believe was in the

8 original report?

9 A. Well, there's some there's some text that's

10 in some of it is in red. You know I I don't believe

11 that that was in the original report so I'm not sure

12 where where that.

13 Q. Can you?

14 A. May have come from and it looks like it's

15 rather random.

16 Q. It's possible there's just some eccentricity

17 with your copy can you point me to a specific page

18 that has some red on it?

19 A. Oh, sure. Well, if you look at page 5 under

20 scope of assignment there just a number of places

21 where there's sort of random red, doesn't look like

22 you've got red so.

23 Q. Let me just. That may be a feature of the

24 printer that was used but I'll represent to you?

25 A. Okay.

7

1 Q. That this was a copy of the report that was

2 produced to us?

3 A. Okay.

4 Q. And it was printed out. And I'll note as

5 well it may be the case there are blue lines on

6 certain foot notes that are links and I'm not sure

7 they were actually blue in the actual report but it

8 looks like that's how the printer printed them?

9 A. With that caveat well it looks as though it

10 is the report that I wrote minus the minus the

11 appendises although the append ceases are identified

12 at the back.

13 Q. I direct you to page 9 and specifically the

14 7th sentence which is in the middle of the first

15 paragraph begins with the word similarly. Similarly

16 there have been periods where large when large

17 numbers of a population have believed in the

18 superiority or inferiority of particular races

19 actions based on such shared beliefs had not had

20 happy outcomes shared beliefs among customers

21 especially when those shared beliefs have little

22 basis in fact or personal expertise are a poor way

23 to inform policy did I read that correctly?

24 A. You did.

25 Q. Is policy based on shared beliefs among

8

1 consumers analogous to policies base on the Supreme

2 Court or inferiority of particular races?

3 MR. AWERBUCH: Objection.

4 THE WITNESS: It's analogous in the sense

5 that it represents beliefs. Whether it's beliefs

6 about races or beliefs about particular events or

7 beliefs about the state of the world others we're

8 really talking about beliefs.

9 BY MR. COHEN:

10 Q. Is there anything the FTC does that you

11 would analogize to policies based on the superiority

12 or inferiority of particular races?

13 A. Well it appears to me in this action that's

14 what's occurring is that there is an effort to make

15 policy based only what people believe as opposed to

16 any underlying science.

17 Q. Why are shared beliefs among consumers a

18 poor way to inform policy?

19 A. Because consumers believe many things that

20 are not true. And to the degree that there is an

21 underlying science or an underlying criterion you'd

22 really like to call upon that in establishing

23 standards not a set of arbitrary on beliefs that are

24 shared by a group of people that may have no basis

25 in fact and may may in fact be wrong.

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CX-A:1
3 (Pages 9 to 12)

Draft Copy

9

1 Q. Are you familiar with the FTCs Q ray

2 litigation?

3 A. I don't think I am.

4 Q. Then I'll ask you to assume that many

5 consumers believe that magnets have medicinal

6 benefits do you understand the assumption I'm asking

7 you to make?

8 A. I do.

9 Q. And I'll further ask you to assume that tens

10 of thousands of consumers purchase magnets from a

11 company that marketed them as medicinally beneficial

12 do you understand that assumption as well?

13 A. I do.

14 Q. When the FTC initiated litigation on behalf

15 of those consumers was that poor policy in your

16 view?

17 MR. AWERBUCH: Objection.

18 THE WITNESS: I can't really answer that

19 without additional information. The question would

20 become one of what was the source of those beliefs,

21 what did the company do, without more information I

22 really can't give you an answer.

23 BY MR. COHEN:

24 Q. And what additional information would you

25 need to be able to answer that?

10

1 A. Well as indicated I -- I need to know what

2 the company do, I'd need to know something about the

3 underlying science, I would need to know something

4 about what the what the beliefs were what the basis

5 for those beliefs were.

6 Q. Let's assume that consumers had pre-existing

7 beliefs that magnets had medicinal benefits and the

8 companies marketing capitalized on those are

9 pre-existing beliefs, again given those assumptions

10 when the FTC initiated litigation on behalf of those

11 consumers was that poor policy?

12 A. Again I would need to know a lot more of the

13 facts in that particular case. How many consumers

14 shared that belief? What was the source of those

15 beliefs, how did the company capitalize on those

16 beliefs.

17 Q. So it may be poor policy or it May not be

18 poor policy depending on the specific factors I

19 haven't give you sufficient information to make that

20 judgment?

21 A. That's that's correct. I mean it would need

22 to be more than just the fact that there were shared

23 beliefs.

24 Q. So shared beliefs alone is not sufficient?

25 A. I don't believe so.

11

1 Q. Are shared beliefs or strike that. Why are

2 shared beliefs among consumers a poor way to inform

3 policy when the shared beliefs have little basis in

4 personal expertise?

5 A. Because you're essentially asking

6 individuals to offer an opinion offer a statement to

7 inform some action some policy that may have little

8 or no basis in fact in.

9 Q. You're aware are you not that the FTC often

10 brings cases against marketers making un

11 substantiated medical claims?

12 A. I am aware that have.

13 Q. You would agree would you not that most

14 consumers do not have personal experience or

15 expertise in medicine correct?

16 MR. AWERBUCH: Objection. Objection.

17 THE WITNESS: I would agree with that too.

18 BY MR. COHEN:

19 Q. There's no requirement that consumers have

20 personal expertise for an un substantiated medical

21 claim to violate the FTC act is there?

22 A. No there's not.

23 Q. And in fact people without the personal

24 experience necessary to evaluate claims like those

25 are precisely people whom the FTC act protects isn't

12

1 it?

2 A. It's part of what the FTC act is intended to

3 protect that's correct that's people who not have

4 have the expertise to evaluate a specific claim that

5 was in fact factually incorrect.

6 Q. Is it your role as an expert in this case to

7 opine regarding what policies the commission should

8 or should not adopt?

9 MR. AWERBUCH: Objection.

10 THE WITNESS: I believe that part of my role

11 here is is to opine on that largely because my

12 understanding was case is quite an unusual case in

13 the sense that there is a policy making component of

14 this case as well as an issue of whether something

15 is deceptively miss leading in terms of a

16 communication so, but the policy aspect is really

17 tide up very much with the communication aspect in

18 this particular case.

19 BY MR. COHEN:

20 Q. Is the case unusual to you in any other

21 respects?

22 A. Well it is somewhat unusual in the sense

23 that at the heart of the case is the definition of a

24 term and the definition of that term is really quite

25 ambiguous and I think absent a clear standard on

PUBLIC DOCUMENT

CX-A:1
4 (Pages 13 to 16)

Draft Copy

13

1 what that definition is, you know it's it's

2 difficult to conclude people are being misled or

3 that they're getting correct factual information.

4 Q. Do I understand your position correctly that

5 it is difficult to conclude that anyone has been

6 misled if there is no clear standard as to what a

7 term means?

8 MR. AWERBUCH: Objection.

9 THE WITNESS: Well I wouldn't go that far

10 but I do think that you you cannot simultaneously

11 establish a standard and then apply that standard to

12 particularly a standard that's based on what people

13 already believe and then apply that standard as the

14 basis for bringing an action for deception. I mean

15 if people already believe something it's not because

16 it was communicated by by a marketer.

17 BY MR. COHEN:

18 Q. Do you consider yourself an expert in policy

19 making?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: Actually I do. I edit a

22 journal in public policy in marketing.

23 BY MR. COHEN:

24 Q. Let's mark as Exhibit 2 obviously professor

25 please maintain Exhibit 1 we'll refer back to that

14

1 let's mark as Exhibit 2 a set of screen shots. I'll

2 provide copies to everyone and further more let's

3 mark as Exhibit 3 you can set this to the side you

4 can take a quick look at it but a compilation of the

5 data that we understand is data in response to the

6 survey that you under took. Those screen shots in

7 exhibit two take a look at this I want to make sure

8 that those are in fact the screen shots that contain

9 the questions that were asked of the consumer survey

10 respondents?

11 A. I believe they are yes.

12 Q. I certainly don't expect you to review four

13 hundred entries there professor Stewart but please

14 glance through and see whether you have any reason

15 to disagree with my representation that that's a

16 collection of the data?

17 A. I have no reason to disagree.

18 Q. Survey question four reads if something is

19 bio degradable how long do you think it would take

20 for it to decompose or decay correct?

21 A. That's correct.

22 Q. I'm going to mark as Stewart three Aan

23 excerpt of three a little easier on so you don't

24 have to flip through the document containing four

25 hundred pages four hundred entries. I direct you to

15

1 case I.D. one zero zero seven six one, it will be

2 easier for you to find on Exhibit 3 A. And

3 specifically the response to question four. In the

4 it's the second row in response to question four

5 reads weeks or months, did I read that correctly?

6 A. I'm not finding where you are.

7 Q. Take a look on the far left column you'll

8 see a survey number one zero zero 7 six one?

9 A. I found that.

10 Q. And then if you go over to the response to

11 four B, excuse me response to survey question four

12 it's in the middle toward the right and you'll see

13 weeks or months do you see that there.

14 A. I do now see that yes thank you.

15 Q. Would you characterize this consumers

16 response as ludicrous?

17 A. No I would not.

18 Q. Would you characterize this consumers

19 response as absurd?

20 A. I would not.

21 Q. And you coded this response correct?

22 A. I did.

23 Q. And you didn't disqualify it from your

24 survey?

25 A. I did not.

16

1 Q. And why didn't you disqualify it from your

2 survey?

3 A. Because weeks or months is a potentially

4 appropriate answer here. It's unspecified in terms

5 much how many weeks or how many months, but it it's

6 an it's a reasonable response to to the question.

7 Q. I direct you to case I.D. one zero zero six

8 nine seven also the response to question four which

9 should be on the next page if I've done this

10 correctly. I may have misspoken one zero zero six

11 nine seven. That response says within weeks two

12 months, did I read that correctly?

13 A. You certainly did.

14 Q. Would you characterize this consumers

15 response as ludicrous?

16 A. No I would not.

17 Q. Would you are characterize this consumers

18 response as absurd?

19 A. No I would not.

20 Q. You coded this response correct?

21 A. I did indeed.

22 Q. You didn't disqualify it from your survey?

23 A. No, I did not.

24 Q. Why not?

25 A. Because it's a perfectly reasonable

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17

1 response. The individual doesn't specify a

2 particular interval they simply indicate weeks to

3 months in both cases plural, both could be could be

4 perfectly reasonable beliefs from the part of an

5 individual. It's nonspecific. But represents what

6 the individual believes.

7 Q. Is it your contention this consumer may have

8 meant more than a dozen months?

9 A. That could be the interpretation, I'm I'm

10 not here to tell you what was in the minds of these

11 consumers when they gave these responses. This is

12 the response that they gave I think it's a

13 reasonable response. But you know what they had in

14 mind I don't know. They they clearly didn't put a

15 number around weeks tore months. It could have been

16 a few. It could have been many.

17 Q. So in your interpretation it's it could have

18 been a hundred and four weeks?

19 A. Well anything is possible. I -- I suppose.

20 Again you're asking me to go beyond the data here.

21 I don't know what this person had in mind when they

22 gave this response.

23 Q. You would agree with me that weeks or months

24 probably doesn't mean two years?

25 MR. AWERBUCH: Objection.

18

1 A. I would agree that in most cases that's

2 probably correct bull gean we're going beyond the

3 data here.

4 Q. The data does say weeks or months correct?

5 A. That's exactly what it says.

6 Q. And the most plausible interpretation of

7 weeks or months would be some period of time less

8 than a year correct?

9 MR. AWERBUCH: Objection.

10 THE WITNESS: That is a plausible

11 interpretation but it is an interpretation.

12 BY MR. COHEN:

13 Q. You didn't strike that you coded their

14 response correct?

15 A. I certainly did.

16 Q. And you coded it as being less than a year?

17 A. I don't recall exactly how I would have

18 coded this it probably would have initially been

19 coded as weeks to months. I did not make an effort

20 to convert the responses into specific numeric

21 values unless a numeric value was provided.

22 Q. You didn't disqualify from your survey did

23 you?

24 A. I did not.

25 Q. I direct you to one zero zero nine five six

19

1 on the next page the response to question four. A

2 couple of weeks parentheses P, then the number one

3 then no, did I read that correctly?

4 A. Again I'm not finding.

5 Q. It's in the last row. Roughly speaking the

6 fifth column from the right so sir if you look at

7 the lower left-hand corner you'll see one zero zero

8 nine five six?

9 A. I do I've now found it I'm sorry. The type

10 is rather small but.

11 Q. I apologize?

12 A. Yes, I do see the person says a couple of

13 weeks one month.

14 Q. Before I forget to ask what does that

15 parentheses P, mean?

16 A. That would have been what the individual

17 probably the interviewer put a plural on it. You

18 know I don't know whether the respondent said a

19 couple week or the interviewer said a couple of

20 weeks but that's that's as I sit here I can't tell

21 you specifically.

22 Q. Sticking with the P for a moment if you go

23 over on row left maybe three large subsidiaritive

24 entries there's one that says so that we can leave a

25 cleaner earth for our children. I don't use plastic

20

1 bags I use paper and I recycle. P, no do you see

2 that?

3 A. Yes.

4 Q. That does don't indicate plural there could

5 it?

6 A. Oh no actually actually you ask me now now I

7 now I know what this is. That's not a that's not an

8 S on the that the earlier thing you asked me about.

9 That's a P, and the and that stands for probe. And

10 the same is true in the P for the one you just asked

11 me about. That would be a probe, anything else.

12 Q. And what do you mean by probe?

13 A. It would have been a question much as I just

14 used, anything else.

15 Q. So returning to one zero zero nine five six,

16 which states a couple of weeks before the probe,

17 would you characterize that consumers response as

18 ludicrous?

19 A. No I would not.

20 Q. Would you characterize that consumers

21 response as absurd?

22 A. I would not.

23 Q. And you coded this response correct?

24 A. I certainly did.

25 Q. And you didn't disqualify from the survey?

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21

1 A. I did not.

2 Q. Let's go to case number one zero zero nine

3 three seven response to question four which is in

4 the second row the fifth column from the right. A

5 couple of weeks did I will read that correctly?

6 A. Yes.

7 Q. Would you characterize this consumers

8 response as ludicrous?

9 A. No I would not.

10 Q. Would you characterize this consumers

11 response as absurd?

12 A. I would not.

13 Q. You coded this response correct?

14 A. I did.

15 Q. You didn't disqualify from your survey?

16 A. I did not.

17 Q. Let's go to one zero zero five one seven the

18 response to question to question 4 which is in the

19 third row fifth column from the right.

20 Probably two weeks did I read that

21 correctly?

22 A. Again you'll have to tell me where you are.

23 Q. The third row I believe and the so that

24 would be the bottom row in this instance. One zero

25 zero actually let me, did I call out five one seven,

22

1 you may need to skip ahead an additional page to get

2 to five one seven?

3 A. I do see five one seven.

4 Q. I apologize I miss directed you so if you go

5 to third row again and response to question four

6 which is about one two three four five or so from

7 the right you see probably two weeks.

8 A. I do see that yes.

9 Q. Would you characterize this consumers

10 response as ludicrous?

11 A. I would not.

12 Q. Would you characterize this consumers

13 response as absurd?

14 A. I would not.

15 Q. You coded this response correct?

16 A. I did.

17 Q. You didn't disqualify it from your survey

18 did you?

19 A. I did not.

20 Q. Let's go to case I.D. number one zero zero

21 eight four nine which may require a little more

22 flipping it's toward the end.

23 Q. On the correct page it should be the last

24 row. Again the fifth column from the right.

25 A. Uh-huh.

23

1 Q. This consumer responded within a couple of

2 days did I read that correctly?

3 A. Yes, you did.

4 Q. Would you K characterize this consumers

5 response as ludicrous?

6 A. No I would not.

7 Q. Would you characterize this consumers

8 response as absurd?

9 A. I would not.

10 Q. You coded this response correct?

11 A. I sure did.

12 Q. You didn't disqualify from your survey?

13 A. I did not.

14 Q. Let me direct you to your report on page 12

15 I believe it's Exhibit 1 and I'm correct am I not

16 that you characterized responses that were described

17 in terms of seconds minutes hours days or weeks as

18 ludicrous and then I believe as well the term absurd

19 is used twice on the same page as well also to

20 characterize such responses. Have I understood that

21 correctly.

22 A. That's correct.

23 Q. Why is it that the responses that are in

24 Professor Frederick's survey that are in days or

25 weeks are ludicrous and absurd whereas the responses

24

1 that are in your survey that are lewd, that are days

2 or weeks are not ludicrous and absurd?

3 A. Well because what I report is actually what

4 the respondent said. What Dr. Frederick reports is

5 a recoding of these, he converts two minutes, two

6 weeks, ten days, all into half a year. That's

7 that's not meaningful, that's ludicrous, that's

8 absurd, I think it's certainly the case that weeks

9 or months in some fashion is a reasonable response

10 from the part of a consumer. It's not necessarily a

11 statement of fact. It's a statement of belief and I

12 believe Professor Frederick actually uses his data

13 as though it's a statement of fact, not simply an

14 uninformed opinion. And in fact many of these

15 responses are ludicrous and absurd. Nanosecond, one

16 second, ten minutes, I mean a thoughtful consume

17 arer doesn't give these kinds of responses.

18 Q. You said a fuse things there first of all if

19 I understood you correctly days and weeks are not

20 ludicrous or absurd responses in your view correct?

21 MR. AWERBUCH: Objection.

22 THE WITNESS: Well it depends on what is

23 says said. I think I think days is unless they say

24 a hundred 80 days, is probably not a very well

25 informed response. Weeks again, weeks could be a

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25

1 perfectly appropriate response if if if there's a

2 number on the front of it and it makes sense then it

3 could be a reasonable response. It is not a

4 reasonable substitute for half a year however.

5 Neither neither is it a statement of of a fact.

6 It's a statement of a belief.

7 BY MR. COHEN:

8 Q. So I understand, if I understand you

9 correctly and correct me if I'm wrong, you're saying

10 that it's not the weeks or days that's ludicrous and

11 absurd but the fact that Professor Frederick coded

12 weeks or days as half a year that's what you're

13 contending it absurd?

14 MR. AWERBUCH: Objection.

15 THE WITNESS: Well no I'm also contending

16 that some using some of these responses in and of

17 themselves is is also ludicrous I mean one second

18 one nano second I mean these are just absurd

19 ludicrous responses but they become even more

20 ludicrous when they're put in the context of being

21 coded as half a year.

22 Q. Let's stick for a moment for weeks.

23 Specifically with respect to weeks was it ludicrous

24 for Professor Frederick to code a response of weeks

25 as half a year.

26

1 THE WITNESS: Yes.

2 BY MR. COHEN:

3 Q. And why do you say that?

4 A. Because two weeks is not half a year. It's

5 factually incorrect.

6 Q. Two weeks is a shorter period of time than

7 half a year isn't it?

8 A. Much shorter.

9 Q. So to the extent that Professor Frederick

10 coded two weeks as half a year that's a result of

11 favor see as isn't it?

12 MR. AWERBUCH: Objection.

13 THE WITNESS: No I don't think it favors at

14 all. It's it is simply a failure to code what the

15 individual actually said. In contrast to what I

16 did, which was to actually code what people actually

17 had to say, this is a distortion of the data.

18 BY MR. COHEN:

19 Q. Let's look at the first sentence in the

20 first full paragraph. This erroneous coding of

21 absurd responses is not the only reason Professor

22 Frederick fails to report his results accurately

23 diread that correctly?

24 A. You did.

25 Q. It doesn't say anything about professor fred

27

1 restriction coding decision being absurd it says

2 that the responses are absurd correct?

3 A. It talks about the erroneous coding of

4 absurd responses. That is correct.

5 Q. So it's the responses that are being

6 characterized as absurd?

7 MR. AWERBUCH: Objection.

8 THE WITNESS: The responses and the way

9 they're being coded yes.

10 BY MR. COHEN:

11 Q. If you go up about three lines there's a

12 sentence that begins by counting such ludicrous

13 responses and then the sentence goes on. That's a

14 reference to the responses being ludicrous correct?

15 A. That's correct.

16 Q. If you go to the fourth line from the bottom

17 of the middle paragraph on the page the combination

18 of coding absurd responses and then it goes on.

19 That's a reference to the responses being absurd

20 correct?

21 A. That's correct.

22 Q. You understand this report will be publicly

23 filed in this case correct?

24 A. I assume it will be correct.

25 Q. None of the respondents in your survey were

28

1 informed prior to agreeing to participate that their

2 responses would be made public were they?

3 MR. AWERBUCH: Objection.

4 THE WITNESS: They were not informed that

5 their responses would be made public they were

6 informed that their responses would be would not be

7 individually identifiable.

8 BY MR. COHEN:

9 Q. None of the respondents in your survey were

10 informed prior to agreeing to participate that their

11 responses would be made public and potentially

12 characterized as absurd or ludicrous were they?

13 A. No and I wouldn't have been able to do that

14 because I, I meant first of all as I've indicated in

15 my own survey I haven't characterized as offering

16 ludicrous or absurd responses. And I would have not

17 have been able to do so in advance because I didn't

18 know what they were going to say.

19 Q. You certainly could have characterized them

20 one way or the other after you knew what they'd

21 said.

22 A. Well I coded them. I didn't characterize

23 them, I coded them as what what they said. It's

24 very typical way of handling verbatim responses to

25 open ended questions.

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29

1 Q. And for instance, several days is in

2 Professor Frederick's data set is characterized in

3 your report as ludicrous but you would not

4 characterize it in your report as ludicrous?

5 MR. AWERBUCH: Objection.

6 THE WITNESS: No because I'm using the terms

7 in very different ways. What I'm reporting is what

8 people believe. I'm not trying to use their

9 responses to generate a factual statement about

10 biodegrade bilt. I'm not trying to convert it into

11 some sort of numeric code that is beyond what the

12 individual offered.

13 BY MR. COHEN:

14 Q. That's what's referenced to professor fred

15 restriction decision to code such responses as half

16 a year. The question I'm asking has to do with

17 whether someone who responded to your survey with a

18 two week response was giving a ludicrous response

19 regardless of how it was coded?

20 A. No there's a difference in the way the data

21 are being used. I'm simply reporting what people

22 said they believe. I'm not making any value

23 judgment about whether it has in fact. Professor

24 Frederick is apparently using these responses in

25 what I would call a ludicrous fashion and that is as

30

1 a representation of fact. And then converts it into

2 an even more ludicrous code that corresponds in some

3 cases but not all, to to to a fraction of a year.

4 Q. With respect to the two references to the

5 word phrases absurd responses and one to ludicrous

6 responses, do any of those refer to the manner in

7 which Professor Frederick lect would to code his

8 responses?

9 A. Absolutely.

10 Q. Explain what you mean?

11 A. It goes to how he's using this data. He is

12 not merely reporting this is what people said. He's

13 he is he is basically using it as a statement of

14 fact that he's then transforming into another

15 statement of fact. You know. If all he had done

16 was to simply report the responses and not attempt

17 to transform them into something that they're not

18 then I would have taken them at face value. Some I

19 still would think are ludicrous and absurd.

20 Q. And which ones do you think are ludicrous

21 and absurd?

22 A. I wasn't finished.

23 MR. AWERBUCH: Please let him answer the

24 question.

25 THE WITNESS: What I was going to say was

31

1 irrespective of whether they were coded

2 inappropriately or not, I would still think that one

3 second or one nanosecond is pretty ludicrous. I

4 don't have a problem with it being reported because

5 that's what the person said. What I do have a

6 problem with is the way that it is treated as though

7 it is a factual statement. It is not and it's a

8 fairly for some of these it's fairly bizarre

9 statements of fact.

10 BY MR. COHEN:

11 Q. You would agree that the portrayal of a

12 survey respondents response as ludicrous or absurd

13 is a portrayal of that survey respondents response

14 in a negative light correct?

15 MR. AWERBUCH: Objection. On.

16 THE WITNESS: It certainly is a

17 characterization of the response as being

18 potentially care less flip, uninvolved, and all

19 those things I suppose could be characterized as

20 negative.

21 BY MR. COHEN:

22 Q. You're on the loyal mayor mount faculty

23 ticurrently?

24 A. I am.

25 Q. Did the loyal mayor institutional review

32

1 board approve the study that we're discussing?

2 A. No, they did not.

3 Q. How many expert reports have you written?

4 A. Over 25 years probably, well let me let me

5 ask for clarification. Do you mean in the context

6 of litigation or do you mean all all expert reports.

7 Q. That's a fair question. Any expert report

8 that was in any way connected to litigation?

9 A. Probably close to a hundred.

10 Q. Prior to this case have you ever prepared an

11 expert report in which you characterized a response

12 of a consumer you studied as absurd?

13 A. Yes.

14 Q. How often have you done that?

15 A. Not not very often most of the work that I

16 see is actually pretty good work but I -- I have

17 seen surveys that I thought were poorly organized

18 poorly implemented poorly designed and where some of

19 the responses I would have characterized as absurd.

20 Q. Prior to this case you've already prepared

21 expert reports in which you characterize responses

22 of consumers you've studies as ludicrous?

23 MR. AWERBUCH: Objection.

24 THE WITNESS: Quite possibly I don't have a

25 particular recollection.

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33

1 BY MR. COHEN:

2 Q. In which cases did you characterize

3 consumers survey respondents responses as absurd?

4 A. I don't really have a recollection as I sit

5 here today of what specific word I may have used in

6 connection with a particular case.

7 Q. Let's go to what I believe has been marked

8 as Exhibit 3, not three A, which is the larger data

9 set. And I direct you to the very first entry which

10 is case I.D. zero zero zero zero zero three and

11 specifically the third text entry over on that row

12 that consumer made the following remark regarding

13 buy oh degradation, I think it's what I told you.

14 It dissolves like those package 53 nuts are made of

15 rice or rice products or corn state your full name I

16 know it's a product that will dissolve and doesn't

17 have to end up in our land fills did I read that

18 correctly?

19 A. You did.

20 Q. The consumers understanding of

21 biodegradation appears to be dissolution here

22 correct?

23 A. That's what they said here.

24 Q. Consumer gives the example of corn starch

25 packing 53 nuts correct?

34

1 A. Correct.

2 Q. Corn starch packing peanuts dissolve in a

3 second or two in water correct?

4 MR. AWERBUCH: Objection.

5 THE WITNESS: I think they can yes.

6 BY MR. COHEN:

7 Q. If a consumer terms biodegradation to mean

8 dissolution why is a second or two an absurd

9 response?

10 MR. AWERBUCH: Objection.

11 THE WITNESS: Because it is simply even too

12 short for the dissolution process to occur and

13 there's no context around it.

14 BY MR. COHEN:

15 Q. Do you know how long the dissolution process

16 takes to occur?

17 A. I do not.

18 Q. How do you know that it's too short for the

19 dissolution solution process to occur then?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: Because I have seen no

22 evidence that would suggest that one second is

23 sufficient time for that cycle of dissolution to

24 take place.

25 BY MR. COHEN:

35

1 Q. If you saw such evidence would you change

2 your view as to whether or not that response was

3 absurd?

4 A. I might. I might not.

5 Q. And how would you decide whether you would

6 or would not change your view?

7 MR. AWERBUCH: Objection.

8 THE WITNESS: Well I actually think that we

9 need to have a better understanding of what this

10 respondent was talking about in addition to whatever

11 other facts you wish to present.

12 BY MR. COHEN:

13 Q. Assume this respondent was talking about

14 starch peanuts where yous toed them in the water?

15 MR. AWERBUCH: Objection.

16 THE WITNESS: How were theys toed into the

17 water. I mean we don't have a complete

18 understanding of what what this individual is

19 talking about. This is what the person said. It's

20 a perfectly reasonable response to give, is it

21 possible that under some some circumstances that

22 individual meant that it would dissolve in a second?

23 Maybe so. Is it possible that under some

24 circumstances it could dissolve in one second maybe

25 so. We don't know that from what the individual has

36

1 said here. In fact when the individual was asked

2 about time quite specifically they said I have no

3 idea I can't even guess.

4 MR. AWERBUCH: Can we go off the record for

5 a second. I'd like to take a five-minute break if

6 that's okay.

7 MR. COHEN: We've only been going for half

8 an hour do you need to use the restroom or.

9 MR. AWERBUCH: Yeah.

10 MR. COHEN: We can go off the record.

11 (Recess)

12 (A discussion was held off the record.)

13 BY MR. COHEN:

14 Q. Let's go back on the record. Dr. Stewart,

15 did you speak with your counsel during the break?

16 A. No.

17 Q. Did you communicate with anyone representing

18 ECM ECM during the break?

19 A. No, I did not.

20 Q. Let's return to where we left off. We were

21 talking about a consumer that might believe that

22 dissolution of a starch based packing peanuts was

23 what was meant by biodegradation. Is that your

24 recollection as well?

25 A. That's correct.

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37

1 Q. And if I understand you correctly I mean

2 again I want you to clarify this if I've got this

3 incorrect. It could be absurd but it might not be

4 absurd depending on various other considerations?

5 A. I mean anything is possible.

6 Q. I understand that philosophically anything

7 is possible but if we assume that this consumer

8 understood biodegradation to mean the dissolution of

9 starch packing peanuts that wouldn't be an absurd

10 response would it?

11 MR. AWERBUCH: Objection.

12 THE WITNESS: It would not be a absurd

13 response it's what they believe yes it's what they

14 said.

15 BY MR. COHEN:

16 Q.

17 Q. Assume that a consumer is asked the question

18 if a package is labeled buy degradable how long will

19 it take to decompose and the consumer interprets

20 biodegradation to mean the beginning of the

21 biodegradation process not the completion of the

22 process do you understand that assumption?

23 A. I do.

24 Q. Is it possible such a consumer could believe

25 that certain materials begin buy degrading

38

1 immediately?

2 A. That's certainly possible.

3 Q. Do you know whether certain materials begin

4 buy oh degrading immediately?

5 MR. AWERBUCH: Objection.

6 THE WITNESS: It's my understanding that

7 some may under some circumstances.

8 BY MR. COHEN:

9 Q. Given the assumption that a consumer

10 interprets biodegradation to mean the beginning of

11 the biodegradation process, not the completion of

12 the process, is a second or two an absurd response

13 in that circumstance?

14 A. No. Now it's an absurd question.

15 Q. And request is it an absurd question?

16 A. Well because now what you've done is is R

17 you said if we ask the person something different

18 they will give they might give a response that is

19 sense cal, but now now we're asking now we're

20 reinterpreting biodegradability to mean the

21 beginning as opposed to the end I suppose you could

22 even say in the middle I mean if that's what you

23 want to ask ask that question but don't attempt to

24 take a statement out of context and put it into the

25 context of another question that was not asked. And

39

1 ask what is it what does it mean now, well I don't

2 know. Because the person wasn't wasn't actually

3 asked the question.

4 Q. Do you know whether anyone was asked the

5 question if a package is labeled buy oh degradable

6 how long will it take to decompose?

7 A. I believe they were.

8 Q. So someone was in fact asked that question?

9 A. They they were asked that question. They

10 were not asked the question of to begin to

11 decompose. To completely decompose. I mean those

12 are different questions.

13 Q. Do you understand that my question is if

14 someone was asked the question that we agree was

15 asked, and they had interpreted biodegradation in

16 the context of that particular question that was

17 actually asked to mean the commencement of

18 biodegradation rather than the completion, would a

19 second or two be an absurd response in that

20 circumstance?

21 MR. AWERBUCH: Objection.

22 THE WITNESS: I believe that it would

23 generally be an absurd response because I don't

24 think that's what people typically think about when

25 they think about biodegradation. They don't think

40

1 about the start process and if you want to know

2 about how quickly will it start ask that question.

3 Then it's perfectly appropriate. But it's it's a

4 complete distortion of any data to to begin to

5 speculate about what an individual might have meant,

6 by a response based on an interpretation that was

7 not explicit in the question.

8 BY MR. COHEN:

9 Q. You didn't recall calculate any of Dr. Fred

10 restriction survey is to see how the results would

11 have changed if the responses deemed absurd were

12 excluded did you?

13 A. I didn't do that specific computation. I

14 did do some computations and actually I did

15 eliminate a lot of the absurd responses. Yes, I did

16 do some yes, I did do that.

17 Q. And what were the results of those

18 computations?

19 A. Off the top of my head my recollection is

20 that first of all I included all the responses

21 including those he did not code. The don't knows

22 the depends write which I think are perfectly

23 reasonable responses and should be included in any

24 computation percentages and and my recollection is

25 that almost 40 percent of the responses in his

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1 various surveys were not coded. We really we really

2 need to include them. My recollection is that those

3 that were I think less than I think less than a day

4 a day or less were about 3 percent of the responses.

5 I think those were less than a month were about 13

6 percent of the responses. I do know that of the

7 total responses, about little over 18 percent were

8 responses between 30 days, more than 30 days and a

9 year, which was about the same percentage as the

10 responses of five years or or more. Now, that's

11 based on my computation based on his data and I

12 readily admit I don't fully understand all of the of

13 the data, but that's my rough computation.

14 Q. What don't you understand about the data?

15 A. Well it's it's pretty messy data and I have

16 not gone through and tried to make a complete

17 determination of how the how the data was

18 constructed I've tried as best I can but I mean I

19 got the CONCATTENATED data late on Friday so I

20 haven't had a lot to do a lot with it.

21 Q. You've discussed some consumers under some

22 circumstances their responses might be characterized

23 as absurd but with respect to those specific

24 responses how do you ascertain whether a consumers

25 response is absurd enough to be disregarded?

42

1 MR. AWERBUCH: Objection.

2 THE WITNESS: Well there are two ways to do

3 it. I mean one is you actually don't have to

4 disregard it. You could you could September it and

5 code it as for what it is. But you wouldn't use it

6 necessarily in a computation. In the other case you

7 could simply make a judgment as a well trained

8 professional coder would often do that a particular

9 response really didn't make any sense in the context

10 of the question, was flip was nonresponsive and and

11 and choose to eliminate it. That would be made by

12 that would be a decision made by a professional

13 coder whose job it is to do editing of data sets and

14 I would expect that that individual would be blind

15 the purpose of the study so that the purpose of the

16 study had no impact on the decision on whether to

17 use a particular data point or not.

18 BY MR. COHEN:

19 Q. What qualifies you or any of the researchers

20 that worked for you to make judgments as to whether

21 a consumers response to a biodegradation time

22 question is too absurd to be coded?

23 A. I have spent 30 almost 40 years now engaged

24 in doing consumer research. I think I have an

25 understanding of responses that are meaningful

43

1 responsive, and and appropriate in the context.

2 Consumer surveys, I believe my expertise qualifies

3 me to to make those judgments and as I said they can

4 accept the response for what it is. You have to be

5 very careful about imbuing it with any meaning

6 beyond what's actually there.

7 Q. There's the line between a reasonable but

8 factually erroneous response and a factually

9 erroneous response that's too unreasonable or too

10 absurd to be coded?

11 A. I wouldn't draw a bright line.

12 MR. AWERBUCH: Objection.

13 THE WITNESS: What I would be inclined to do

14 and what I did in my own survey is I would code

15 everything as it was stated. I would not go beyond

16 the data and start making assumptions about things

17 people meant that are that are simply not in the

18 data and in some cases are completely in consistent

19 with the data.

20 BY MR. COHEN:

21 Q. Why wouldn't you draw a line between

22 reasonable and factually erroneous and too

23 unreasonable?

24 A. Because I think it would be difficult to

25 establish a hard and fast criteria. I think you

44

1 could come up with some rules but there would still

2 be a certain amount of subjectivity that would be

3 involved.

4 Q. Adopting a rule in which you code every

5 response avoids having to draw that type of

6 subjective line correct?

7 A. Well maybe and maybe not. It depends on how

8 it's coded. I mean if you're actually coding the

9 response as opposed to transforming it to give it

10 different meaning then I think that's okay. The

11 problem becomes one of transforming the actual

12 response into something that may not be.

13 Q. You criticized Dr. Frederick for coding

14 extremely low numbers correct?

15 A. I'm not sure what you mean.

16 MR. AWERBUCH: Objection.

17 THE WITNESS: By low numbers.

18 BY MR. COHEN:

19 Q. Seconds.

20 A. I do.

21 Q. Do you have any understanding one way or the

22 other as to whether Dr. Frederick also coded

23 extremely high numbers?

24 A. I believe he did.

25 Q. Is one trillion years an absurd response to

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1 a question regarding biodegradation response?

2 A. I think it's an unusual I would put it in

3 the category of absurd yes. I would note however

4 that part of his coding rule also included coding

5 things like eternity and giving that a number. I

6 suppose a trillion years is roughly equivalent to

7 eternity, so that might be completely consistent

8 with his coding scheme.

9 Q. Did you evaluate the effect that coding

10 extremely high numbers have on Dr. Frederick's data?

11 A. Not explicitly. It I mean it certainly

12 would increase any mean that you might compute. But

13 I haven't done that analysis explicitly.

14 Q. It wouldn't be an appropriate coding rule

15 would it to code extreme highs but not extreme lows

16 would it?

17 MR. AWERBUCH: Objection.

18 THE WITNESS: There may be circumstances

19 where you would do this, I think you could I mean

20 there's a very common approach to analysis of data

21 called trimming where you would eliminate the very

22 high and the very low and that would be perfectly

23 appropriate.

24 BY MR. COHEN:

25 Q. That's not what I asked respectfully. It

46

1 might be appropriate to follow what you just said to

2 trim the very high and the very low correct?

3 A. Correct.

4 Q. But it wouldn't be appropriate to code the

5 very high but not the very low would it?

6 MR. AWERBUCH: Objection.

7 THE WITNESS: Well, you're going to have to

8 give me some context. I mean there certainly could

9 be circumstances where that that might make sense.

10 BY MR. COHEN:

11 Q. Where might that make sense?

12 A. Well if if somebody were to say for example,

13 a million years, a material years, you could code

14 that for what it is, million a trillion. Whether

15 you would transform it is a whole other question I

16 mean they could say eternity they could say never.

17 I mean all of those are codeable responses whether

18 you would want to transform them into some numeric

19 value or use the numeric value as stated is a

20 different question. And again I think the

21 appropriate approach here would have been what I

22 suggested would have been to trimmed if you wanted

23 to create any any erythematic arithmetic exercise.

24 Q. In your survey you didn't disallow any

25 responses because they were either too short or too

47

1 long did you?

2 A. No, I did not.

3 Q. Let's back up for a moment to the person who

4 gave the packing peanuts response that suggested an

5 understanding of biodegradation that is something

6 that might also be considered dissolution do recall

7 that?

8 A. I do.

9 Q. Let me direct to you what I believe is

10 Exhibit 2 and I apologize if I got this wrong but

11 Exhibit 2 should be some screen shots?

12 A. And I direct you can specifically to Ssix.

13 That's a screening question that asks potential

14 respondents do you have a general understanding of

15 what the term buy degradable means did I read that

16 correctly.

17 A. Yes you did.

18 Q. By virtue of the fact that the packing

19 peanuts response appears in the data set we know

20 don't we that the consumer who gave that response

21 answered affirmatively when asked do you have a

22 general understanding of was the term biodegradable

23 means correct?

24 A. That's correct.

25 Q. So every consumer you counted in your survey

48

1 who gave a response that's arguably with any

2 scientific definition of biodegradation was a

3 consumer who had told your researchers that he or

4 she had a general understanding of what the term

5 biodegradation means correct?

6 A. Yes.

7 MR. AWERBUCH: Objection.

8 THE WITNESS: That is correct.

9 BY MR. COHEN:

10 Q. Do you know how many consumers that was?

11 A. I don't no. I've not done a count.

12 Q. It's necessary to have some basic

13 understanding of the product at issue to study

14 consumer perception of the marketing of that product

15 correct?

16 MR. AWERBUCH: Objection.

17 THE WITNESS: Well, if the focus is on a

18 product, yes it would be.

19 BY MR. COHEN:

20 Q. Let's take a look back at your report which

21 is I think marked as Exhibit 1. If you go to I'll

22 direct you to page 4, the first sentence under

23 background, ECM plastics offers a product biofilm

24 which is spelled capital bio capital film that may

25 be applied to plastic products during the

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1 manufacturing process. Did I read that correctly?

2 A. Yes you did.

3 Q. And as you mentioned earlier you wrote that

4 sentence yourself?

5 A. I did.

6 Q. The product you understood yourself to be

7 studying is called buy oh film?

8 A. That's what it's been referred to as yes.

9 Q. From the standpoint of mike biology and I

10 understand if this is outside your expertise, do you

11 know what a buy oh film is?

12 MR. AWERBUCH: Objection.

13 THE WITNESS: I don't know I don't know

14 specifically in a generic sense what a buy oh film

15 is it's been represented to me that this product is

16 an additive that is used in the manufacture of

17 plastic I believe coats the exterior which is which

18 I think it's called a film, that facilitates the

19 break down of the of the plastic.

20 BY MR. COHEN:

21 Q. Are you familiar with a product ECM sells

22 called master batch pellets capital M, capital B in

23 the batch and Capital P for pellets, and then it's

24 trade marked?

25 A. I'm not familiar with that.

50

1 Q. Let me mark as Exhibit 5 excuse me I think

2 we're on four I apologize a flyer that Dr. Stewart

3 you produced to us. Have you seen this before?

4 A. I have.

5 Q. It's entitled mechanism for biodegradation

6 of products manufactured with ECM master batch

7 pellets and then there's a trade mark up there

8 correct?

9 A. That's correct.

10 Q. Did you consider this document strike that

11 did you rely upon this document in the preparation

12 of your report?

13 A. I don't believe that I did. It was part of

14 a number of documents around the product and company

15 that I was provided but I didn't make any use of it.

16 Q. Did you review the document prior to

17 drafting your report?

18 A. I probably did review it. I don't, I don't

19 have a strong recollection of it.

20 Q. Let's mark as Stewart five a document that's

21 entitled sample claims by ECM buy oh films have you

22 seen this document before Dr. Stewart?

23 A. I have.

24 Q. Who prepared this document?

25 A. I believe the attorneys in this particular

51

1 case.

2 Q. Which attorney?

3 MR. AWERBUCH: Objection.

4 THE WITNESS: Well it came to me from Leo

5 Caputo I don't know who may have prepared it.

6 BY MR. COHEN:

7 Q. Why was it prepared?

8 MR. AWERBUCH: Objection.

9 THE WITNESS: Because we we talked a bit

10 about what claims might be at issue in in the case

11 and I asked him for a sample of the claims that were

12 at issue.

13 BY MR. COHEN:

14 Q. Let me direct you to the second bullet on

15 the first page that begins master batch pellets TM,

16 is a revolution air additive and goes on to make

17 various claims. Have I read that correctly?

18 A. You have.

19 Q. Did you review and rely upon these sample

20 claims in the preparation of your report?

21 A. I did review them and I -- I selected

22 several that with some modification. I then use

23 indeed my survey.

24 Q. What was the basis for the selections that

25 you made?

52

1 A. I was simply looking for for various types

2 of claims that that were made that seemed to be

3 different in terms of specificity, detail, language.

4 Q. Were you told to use any particular claims?

5 MR. AWERBUCH: Objection.

6 THE WITNESS: I was not.

7 BY MR. COHEN:

8 Q. Where is it your understanding that ECM

9 sells a product called buy oh film come from?

10 A. I believe I have seen this in some

11 documents. I think it's been a part of

12 conversations with with the attorneys and and with

13 employees of the company.

14 Q. Which employees of the company?

15 A. The president is one I think that was his

16 title. I've had a couple of conversations with him.

17 He's the only one that I've had substantive

18 conversations with.

19 Q. And which attorneys did you speak with who

20 told you that ECM sells a product called bio film?

21 A. I think Lou Caputo.

22 Q. Any others?

23 A. I think that's he think that's the only one.

24 Q. And I under you may not remember his name

25 but the president would that have been Robert

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1 Sinclaire?

2 A. Yes I believe that's correct.

3 Q. And he would have told you will that ECM

4 sells a product called bio film?

5 MR. AWERBUCH: Objection.

6 THE WITNESS: Well that's my recollection

7 it's been a while since I talked to him but I

8 certainly had a conversation with him about the

9 product.

10 BY MR. COHEN:

11 Q. Let's assume just for the purpose of this

12 next series of questions that ECM does not sell a

13 product called biofilm. That wouldn't change your

14 opinions would it?

15 A. Not at all.

16 Q. You would just substitute the references in

17 the report to the alleged biofilm product to master

18 batch pellets?

19 A. I might. The study that I did was really

20 focused on any specific product, in fact I was I was

21 quite clear in designing the survey that I didn't

22 want to mention any specific product name. I simply

23 wanted to evaluate claims absent reference to a

24 particular vendor. So we could have you know we

25 could have substituted most anything. It wouldn't

54

1 change the report.

2 Q. Well regardless of what you told survey

3 respondents I understand there may be a reason why

4 you wouldn't want to tell survey respondents the

5 exact name of the product would there be a reason

6 that you would use a different name for the product

7 in the report?

8 MR. AWERBUCH: Objection.

9 THE WITNESS: That's the that's the name

10 that stuck with me, that's what I used.

11 BY MR. COHEN:

12 Q. Is it your view that a reasonable consumer

13 must correctly understand a claim to be deceived by

14 it?

15 MR. AWERBUCH: Objection.

16 THE WITNESS: I believe they have to develop

17 an understanding. It pay be an erroneous

18 understanding.

19 BY MR. COHEN:

20 Q. So a consumer with an erroneous

21 understanding of a claim can be deceived by it?

22 MR. AWERBUCH: Objection.

23 THE WITNESS: That's certainly possible yes.

24 Just because there is an erroneous belief doesn't

25 mean they have been deceived by a communication but

55

1 it is certainly possible that people taking an

2 erroneous belief away from a specific communication

3 could be misled and deceived.

4 BY MR. COHEN:

5 Q. Let me give you a hypothetical. A juice is

6 marketed as having more energy than a competitors

7 products. Or competitor products. The only

8 difference between the marketers product and the

9 competitors product is that the marketers product

10 contains more calories. Solely due to the poor

11 nutritional education in the United States a

12 substantial minority of reasonable consumers

13 interpret the marketing reference to more energy to

14 mean more vitamins and they buy the product in part

15 based on the more energy claim. Have those

16 consumers been deceived?

17 MR. AWERBUCH: Objection.

18 THE WITNESS: If there's evidence that they

19 take away a claim about vitamins, and that they take

20 away that claim based on the communication, and they

21 make a decision based on that that erroneous belief,

22 then yes I think they have been deceived.

23 BY MR. COHEN:

24 Q. I asked you to assume that the sole basis

25 for their belief that more energy meant more

56

1 vitamins was the poor state of nutritional education

2 in the United States. Again given that assumption

3 have those consumers been deceived?

4 MR. AWERBUCH: Objection.

5 THE WITNESS: If, there, there has to have

6 been some marketing communication as well as the

7 poor state of their knowledge.

8 BY MR. COHEN:

9 Q. The marketing communication in this example

10 is the product is being marketed as having more

11 energy.

12 A. Okay.

13 Q. Is that a sufficient marketing communication

14 in your view such that the consumers who purchase

15 the product based on that marketing communication

16 have been deceived?

17 MR. AWERBUCH: Objection.

18 THE WITNESS: I would need to know whether

19 there was evidence that in fact they took a vitamin

20 claim away from communication and that that, that

21 that, that the number of people who took away that

22 claim about vitamins was substantially greater than

23 people take being, would take away from exposure to

24 any fruit juice.

25 BY MR. COHEN:

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1 Q. Okay let's break that down. You said a

2 couple of interesting things there. You would need

3 to know that people took away the vitamin claim from

4 the reference to energy. Did I understand that was

5 one of the two points that you just made?

6 A. That's correct.

7 Q. So if the, if there were evidence that the

8 energy claim contained an implied claim of vitamins,

9 would that satisfy your concern now?

10 A. Well whether it's explicit or implied is not

11 the issue because that's a characteristic of the

12 claim what's important is what do people carry away

13 in terms of a message and you know if they if they

14 infer something that is implied then they could

15 conceivably been misled in that case.

16 Q. And I believe and I apologize you made a

17 second point as well can you refresh my

18 recollection?

19 A. Yeah.

20 Q. As to what that second point was?

21 A. Well the point was there needed to be a

22 demonstration that it was the marketing

23 communication that actually created the problem or

24 the deception if you will so what you want to do is

25 control for those pre-existing beliefs so for

58

1 example, if you simply provided a fruit juice absent

2 the particular claim about energy, how many people

3 make an inference about vitamins in that case, and

4 is it substantially smaller number than is the case

5 where people may have been exposed to the claim at

6 issue.

7 Q. So if I understand your contention correctly

8 and I'm sure you'll correct me if I don't. If the

9 belief in this example energy means vitamins, does

10 not come from the marketing communication itself

11 there can't be deception?

12 MR. AWERBUCH: Objection.

13 THE WITNESS: Well it the person may be

14 deceived for other reasons but they're not being

15 deceived by virtue of the claim at issue.

16 BY MR. COHEN:

17 Q. What about a situation where a marketer

18 takes advantage of a preexisting erroneous belief

19 amongst the population? Is that marketer deceiving

20 consumers?

21 MR. AWERBUCH: Objection.

22 THE WITNESS: You'd have to give me more, I

23 mean you'd have to give me more fact does I mean

24 I -- I mean the answer is possibly but possibly not

25 I mean you have framed the question as though the

59

1 marketer intends to deceive. I suppose that could

2 be done.

3 BY MR. COHEN:

4 Q. So if the marketer intends to deceive in the

5 sense that the marketer is capitalizing on a

6 pre-existing erroneous belief. The marketer would

7 be violating the FTC act in that situation correct?

8 MR. AWERBUCH: Objection objection.

9 THE WITNESS: Well now you're asking me for

10 a legal opinion and I and I can't give you a legal

11 opinion. I do think that in that situation if if if

12 those are the only facts on the table there may be

13 key word is maybe, a basis to believe the individual

14 has been deceived.

15 BY MR. COHEN:

16 Q. And just for the record, so the record is

17 clear I understand that you're not a lawyer correct?

18 A. That's correct.

19 Q. You do, you are an expert in what I would

20 call general sort of law and marketing would that be

21 a fair sort of rough characterization?

22 A. That's fair.

23 Q. And so you wouldn't give me a different

24 answer to the last question if I couched it in terms

25 of based on your expertise as an academic who

60

1 studies law and marketing would you?

2 A. I wouldn't change my answer no.

3 Q. Let's try one or two more. Let's say that a

4 dietary supplement is marketed to consumers as

5 boosting immunity. The claim is true in the sense

6 that the supplement increases the presence of

7 certain blood components associated with the body's

8 immune system but it's not true in that it reduces

9 the risk of cold and flu however again solely due to

10 the poor state of science education in the United

11 States a substantial minority of reasonable

12 consumers believe that boosting immunity means

13 reducing the risk of cold and flu. That substantial

14 minority buys the product based in part on the

15 boosting immunity claim have those consumers been

16 deceived?

17 MR. AWERBUCH: Objection.

18 THE WITNESS: It's possible but again I

19 would need more facts. I would need to know the

20 extent to which that generalized belief influenced

21 the purchase of any product. If it's a belief that

22 people are carrying around with them and was not

23 created by marketing communication, and people are

24 using it to make make decisions about all manner of

25 products then I'm not sure they are deceived. They

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1 may have an erroneous belief but I'm not sure we can

2 hold a motherer responsible for that.

3 BY MR. COHEN:

4 Q. Could you hold the marketer responsible if

5 the marketer is capitalizing on a known erroneous

6 belief?

7 MR. AWERBUCH: Objection.

8 THE WITNESS: Now you'll need to define

9 capitalize.

10 BY MR. COHEN:

11 Q. The marketer is aware of the erroneous

12 belief and never the less markets the product

13 without any qualification?

14 MR. AWERBUCH: Objection.

15 THE WITNESS: Again I would think you have

16 to give me more information in that specific case.

17 BY MR. COHEN:

18 Q. What I'm sorry go ahead?

19 A. Well, if people marketers are not

20 responsible for the general beliefs that people

21 carry around that have not been created by by the

22 marketing stimulus or the marketers actions. You

23 know if there is a specific claim that is misleading

24 than and people rely on it, then there may be

25 deception involved but you know I don't think we can

62

1 hold marketers responsible for all the erroneous

2 beliefs people carry around in the marketplace.

3 Q. And you would maintain that position even if

4 the marketer is knowingly capitalizing on those

5 erroneous beliefs?

6 MR. AWERBUCH: Objection.

7 THE WITNESS: Again I I don't know I don't

8 know what you mean by capitalizing. I mean that's

9 that's my difficulty with your, you'd have to tell

10 me what the marketer is doing specifically before I

11 can answer that question.

12 BY MR. COHEN:

13 Q. Well let's stick with the hypothetical for a

14 moment and let's assume that the marketer

15 understands that a significant mine north of

16 consumers understand that boosting immunity will be

17 interpreted -- withdrawn.

18 The marketer understands that a significant

19 minority of consumers who see the phrase boosting

20 immunity will interpret that to mean reduces cold

21 and flu. The marketer knows that. In that

22 situation has there been deception?

23 MR. AWERBUCH: Objection.

24 THE WITNESS: Not necessarily. It depends

25 on the nature of the claim, the characteristics of

63

1 the marketplace. Again you can't hold a marketer

2 responsible for beliefs that have been developed by

3 virtue of things that are not within the control of

4 the marketer.

5 BY MR. COHEN:

6 Q. So if I understand you correctly the

7 marketer has no responsibility for pre-existing

8 erroneous beliefs among of the the population with

9 respect to whether or not it's claim is evaluated as

10 deceptive?

11 MR. AWERBUCH: Objection.

12 THE WITNESS: No, I didn't say that. I

13 think marketers do have some responsibility but it

14 is also the case that marketers don't have control

15 over many of the things that create erroneous

16 beliefs among consumers and you can't hold marketers

17 responsible for those erroneous beliefs.

18 BY MR. COHEN:

19 Q. Ma'am could you read back the answer read

20 read?

21 Q. Thank you. When you said some

22 responsibility in your answer, what is that

23 responsibility that you referenced?

24 A. Well I think marketers have a responsibility

25 to be generally aware of of who their consumers are,

64

1 what they believe, what they buy and to assure that

2 the information that they present to their consumers

3 is, is, is factually accurate.

4 Q. So again, if it's factually accurate but

5 likely to be misunderstood based on pre-existing

6 beliefs there's no deception there?

7 MR. AWERBUCH: Objection.

8 THE WITNESS: No that's not what I said

9 there could be but there also may not be and we

10 would have to identify specific cases I believe, to

11 determine whether or not there was there was

12 deception present. I mean again there has to be

13 something that the marketer has done or not done

14 that they can be held responsible to and it has to

15 be you know, a belief that people are acting on.

16 BY MR. COHEN:

17 Q. Are there any other I guess cry tear I don't

18 know you just gave me two that will help me

19 determine the circumstances in the situation where

20 the marketer would be responsible and the marketer

21 would not be responsible?

22 A. Well I mean there could be any, in specific

23 situations there could be I suppose any number of

24 other things, but in general there needs to be some

25 evidence first of all that there's even an erroneous

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1 belief. Secondly that some how that erroneous

2 belief is there by some action or inaction by the

3 marketer, and thirdly that you know people are you

4 know are behaving differently shop I differently

5 making different purchase decisions by virtue of

6 that erroneous belief created by the marketer.

7 Q. You took a telephone survey in this case

8 correct?

9 A. I did.

10 Q. How is it possible to survey consumers

11 impressions of the ECM logo over the phone?

12 MR. AWERBUCH: Objection.

13 THE WITNESS: It's not that wasn't the

14 purpose of the survey.

15 BY MR. COHEN:

16 Q. In your survey of consumers why didn't you

17 ask them how much time it would take for plastic

18 labeled buy degradable to biodegrade?

19 A. Because I wasn't interested in that specific

20 topic. I was interested in peoples general

21 understanding of biodegradability.

22 Q. And why were you not interested in that

23 specific topic?

24 A. Because I thought it would emerge as a part

25 of the more general discussion of biodegradability

66

1 and in fact it did.

2 Q. Why not ask both the more general questions

3 that were in your survey and also, specifically how

4 much time will it take for a plastic labeled

5 biodegradable to biodegrade?

6 A. Because that wasn't the purpose of the

7 survey. I could have designed a different survey

8 but that was not the purpose of the say.

9 Q. You're not offering an opinion about

10 consumers views regarding how much time it would

11 take for a plastic product labeled biodegradable to

12 biodegrade are you?

13 MR. AWERBUCH: Objection.

14 THE WITNESS: To the extent that I have data

15 that speaks to that issue I am.

16 BY MR. COHEN:

17 Q. And what is that opinion?

18 A. Well that by and large there's a great deal

19 of skepticism ignorance, and just general lack of

20 understanding about that topic.

21 Q. Other than the fact that in your opinion

22 with respect to consumers assessments of

23 biodegradation times there is a lot of skepticism

24 ignorance and lack of understanding. You're not

25 offering any other opinions about consumers views

67

1 regarding how much time it would take for a plastic

2 product labeled biodegradable to biodegrade are you?

3 MR. AWERBUCH: Objection.

4 THE WITNESS: I'm only offering opinions

5 that are grounded in the survey work that I did. I

6 think I've given you those opinions. There may be

7 others but those are the ones that I -- I can

8 identify as we speak.

9 BY MR. COHEN:

10 Q. And so the answer to my question is no?

11 MR. AWERBUCH: Objection.

12 THE WITNESS: Well no the answer is there

13 may be other opinions that the data inform, I may

14 not have fully framed them. They're likely

15 subopinions of what we've talked about, but I'm not

16 going to say that there wouldn't be any opinions

17 that might emerge.

18 BY MR. COHEN:

19 Q. What other opinions do you anticipate might,

20 emerge?

21 MR. AWERBUCH: Objection.

22 THE WITNESS: I don't know. I was given

23 Dr. Fredericks survey and asked to opine on that. I

24 don't know what else I might be given and might be

25 asked to opine upon. It may also be the question

68

1 arises that the day an I've collected could inform

2 and then I'll use that data to inform that, you know

3 that opinion.

4 BY MR. COHEN:

5 Q. These opinions that may develop in the

6 future, you would agree by definition they're not in

7 the report that was provided to complaint counsel

8 correct?

9 A. I would grow with that yes.

10 Q. Let's take a look back at Exhibit 2. Which

11 I believe is the screen shots but I apologize if I'm

12 incorrect I think it is the screen shots?

13 A. Mm-hmm.

14 Q. I direct you will to questions four A, and

15 four B. Why were these questions asked at all?

16 A. Because I was trying to develop more

17 complete understanding of whether, what people

18 understood the term biodegrade to mean and I I had

19 seen other studies read other materials, that

20 clearly indicated that that the types of products

21 type of material has an influence on the rapidit of

22 biodegradability and so I wanted to understand what

23 consumers understood about that. I also understood

24 from various sources that there are there are

25 differences in the time it takes for various

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69

1 materials to biodegrade so I wanted to understand

2 something about consumers understanding of that.

3 Q. Were there any other reasons?

4 A. I don't believe so. The purpose of the

5 survey was to gain an insight into what people

6 understood about biodegradability.

7 Q. It would have been possible wouldn't it to

8 ascertain consumers understanding of ECMs marketing

9 without asking questions four A, through four B;

10 correct?

11 A. I suppose so, that's a different question.

12 Q. Why were these questions four A. Through

13 four B, asked before the question series that

14 purportly replicates ECMs marketing which would be

15 the question five series?

16 MR. AWERBUCH: Objection.

17 THE WITNESS: Because I did not want

18 specific claims to contaminate the answers to the

19 earlier questions. I didn't want to give people a

20 statement that referenced a specific timeframe and

21 then ask them about time. It's generally

22 appropriate in surveys to ask more general questions

23 followed by more specific questions. And that's the

24 approach I followed here.

25 BY MR. COHEN:

70

1 Q. Take a look back at question four A, please.

2 Do you think there are differences in the amount of

3 time it takes for different types of products to

4 biodegrade decompose or decay, that's a leading

5 question isn't it?

6 MR. AWERBUCH: Objection.

7 THE WITNESS: Well it's leading to the

8 extent that it asks people "yes" or "no."

9 BY MR. COHEN:

10 Q. A leading question is a question that

11 suggests the answer correct?

12 MR. AWERBUCH: Objection.

13 THE WITNESS: That's correct.

14 BY MR. COHEN:

15 Q. This question suggests that there are

16 differences in the amount of time it takes for

17 different types of products to biodegrade decompose

18 or decay correct?

19 A. No it doesn't.

20 Q. And why don't you think this is a leading

21 question in that regard?

22 A. It doesn't suggest a yes or a no answer.

23 Q. You don't believe that this question put in

24 the mind of survey respondents the fact that there

25 are differences in the amount of time it takes for

71

1 different types of products to biodegrade decompose

2 or decay?

3 A. Well I hope we did put that in their minds

4 because we're asking them whether or not they think

5 there are those differences "yes" or "no", people

6 could say no and some people did.

7 Q. Most people didn't?

8 A. Most people did not correct.

9 Q. Can you think of an alternative question or

10 question series that would enable to learn whether

11 consumers estimate different biodegradation times

12 for different productions. I could have asked a

13 whole series of questions product by product

14 material by material that would have lengthened the

15 questionnaire and I don't think would have begin us

16 any greater insight?

17 Q. How about a design where you ask one group

18 how long plastic takes to biodegrade and another

19 group how long wood takes to biodegrade and compare

20 the answers?

21 A. That that certainly could have been a

22 design. It would have required using two different

23 groups but it certainly something that would have

24 been possible.

25 Q. Information conveyed to respondents earlier

72

1 in a survey can affect their answers to later

2 questions correct?

3 A. It certainly can.

4 Q. What's more important to determining whether

5 ECMs claims are deceptive, whether consumers

6 estimate different biodegradation times for

7 different products or how consumers understand ECM;s

8 marketing?

9 MR. AWERBUCH: Objection.

10 THE WITNESS: I actually you need to read

11 the question back I'm sorry read read.

12 THE WITNESS: I don't think you can say one

13 is more important than the other in this context.

14 In so far as people are carrying around beliefs that

15 may be highly varied in some cases perhaps erroneous

16 those things may be elicited those beliefs may be

17 elicited in response to any marketing

18 communications. So you really have to have some

19 understanding of sort of the baseline much as I've

20 done here, to gain insight into what the claims may

21 have communicated.

22 BY MR. COHEN:

23 Q. Questions five A through five C ostensibly

24 simulate ECM's marketing correct?

25 MR. AWERBUCH: Objection.

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1 THE WITNESS: No I wouldn't say they

2 simulate their marketing. What they are are an

3 effort to take three of the claims that were

4 identified for me and put them into ail non

5 manufacturer specific form and as we did not

6 identify the manufacturer, and ask people what these

7 claims would would mean to them.

8 BY MR. COHEN:

9 Q. Let me ask you to assume the questions four

10 A, questions four and four A, are leading and let me

11 further more ask you?

12 A. I won't take that assumption. They're not

13 leading. Un ambiguously and so I won't accept that

14 assumption.

15 Q. You understand that as an expert in a

16 deposition you don't have to agree with the

17 assumption but you have to accept it if you

18 understand it?

19 A. Well but you're asking me to assume

20 something that's false.

21 Q. So you will not answer any questions in

22 which you're asked to assume that questions four and

23 four A are leading?

24 A. They are patently not leading and and

25 therefore, any any answer based on the assumption is

74

1 not going to be a useful answer.

2 Q. Shouldn't that be for the court to decide?

3 A. Well the, no. It's for me to decide whether

4 I can give you a meaningful answer to your question

5 and you've asked me to assume something that is

6 patently false.

7 Q. Let's mark Exhibit 6 mark mark Exhibit 6.

8 Let me give this to Dr. Stewart.

9 Q. Dr. Stewart was is this document?

10 A. This is a copy of I believe the final

11 progress report on the interviewing that was done

12 for my survey, survey of consumers and it reflects

13 the disposition of the sample.

14 Q. And I apologize I think you just said this

15 so again I apologize for repeating but this is the

16 final report isn't it?

17 A. I believe it is the final report yes I was

18 given these on a routine basis not daily but

19 regularly to give me an update on where we stood

20 with respect to collecting data.

21 Q. And you can tell this is the final report

22 because it reports data for four hundred respondents

23 and you had four hundred respondents in your survey?

24 A. That's correct.

25 Q. Based on the information provided here the

75

1 average call length across the four hundred

2 respondents was 12 minutes?

3 A. That's correct.

4 Q. Do you know what the range was?

5 A. As I sit here I don't know exactly what the

6 range was.

7 Q. Could that information be ascertained?

8 A. I believe it probably could be yes.

9 Q. And how would that information be

10 ascertained?

11 A. The survey research company would would very

12 likely have records. It it would probably have to

13 be computed but I -- I believe that they would have

14 a record of how long each call lasted.

15 Q. Based on your professional expertise do you

16 have an approximate range that you can provide us?

17 MR. AWERBUCH: Objection.

18 THE WITNESS: I would say between five

19 minutes and 20 minutes.

20 BY MR. COHEN:

21 Q. It would be fair to estimate and I

22 understand this is only an estimate, that by the

23 time respondents were asked question five A, they

24 had already been on the telephone talking about

25 biodegradation for anywhere from seven to ten

76

1 minutes is that fair?

2 A. That's fair. That's quite possible yes.

3 Q. The fact that respondents were involved in a

4 seven to ten minute conversation about

5 biodegradation before being asked questions five Ato

6 five C could have affected their answers to those

7 questions couldn't it?

8 MR. AWERBUCH: Objection,.

9 A. Certainly it could would have made them more

10 attentive to the questions.

11 BY MR. COHEN:

12 Q. Could it have affected their answers in any

13 other ways?

14 A. I don't believe so.

15 Q. Most consumers don't engage in seven to ten

16 minute conversations about biodegradation when they

17 walk into a store and decide to buy a product do

18 they?

19 A. Not as a general rule.

20 Q. So in this respect your survey doesn't

21 simulate the actual consumer experience does it?

22 MR. AWERBUCH: Objection.

23 THE WITNESS: It does not and that was not

24 it's attempt.

25 BY MR. COHEN:

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1 Q. The net impression that a consumer takes

2 away from a biodegradeable claim is different when

3 the consumer confronts it on a store shelf rather

4 than after a seven to ten minute conversation about

5 biodegradation correct?

6 A. I -- I would agree that that is the case.

7 We didn't show people a logo here. That was not the

8 purpose of the of the of the research. So there

9 would be some difference yes.

10 Q. In professor fred restriction study

11 consumers were shown productions with ECM

12 biodegradeable logos but without a seven to ten

13 minute conversations regard biodegrade ability

14 beforehand?

15 A.

16 MR. AWERBUCH: Objection.

17 THE WITNESS: It's my understanding some of

18 his surveys did that yes.

19 BY MR. COHEN:

20 Q. Just so the record is clear and I believe it

21 is clear, you are not going to respond to any

22 questions that ask you to assume that four and four

23 A are leading?

24 MR. AWERBUCH: Objection asked and answered.

25 THE WITNESS: I I'm not going to make a

78

1 false assumption and then give you an answer based

2 on a false assumption.

3 BY MR. COHEN:

4 Q. With respect to this telephone survey, only

5 land lines were dialed correct?

6 A. That is correct.

7 Q. Where did the sample of land lines come

8 from?

9 A. It came from two sources. One was from

10 scientific sampling that scientific sampling

11 generated a random digit dial sample and we

12 supplemented that with a listed sample that we

13 obtained from survey sampling. And and the final

14 sampling frame was a combination of the two.

15 Q. Was one of those sets of samples something

16 that is known as age enhanced?

17 A. Well you could you could call it age

18 enhanced. It was the the the survey sampling survey

19 recollect the listed sample was obtained in order to

20 represent more younger consumers, yes.

21 Q. Why was it necessary to modify the sample to

22 obtain more younger consumers?

23 MR. AWERBUCH: Objection.

24 THE WITNESS: Because experience generally

25 demonstrates that a pure random digit survey

79

1 particularly one that's done over a relatively short

2 period of time even a month tends to produce larger

3 numbers of older less mobile consumers in order to

4 pick up more younger consumers it's necessary to use

5 a listed sample ask.

6 BY MR. COHEN:

7 Q. How long over what period of time was this

8 survey conducted?

9 A. It was about a month.

10 Q. Are you sure about that?

11 A. Well it would be it would be in my report.

12 Well could take a look at that because it is stated

13 in my report. Yeah I was right it's about a month

14 the study began March 262014 and it was completed on

15 May 1st 2014. That was the primary study. We had

16 done a pilot earlier, but you know a little longer

17 than a month.

18 Q. What percentage of Americans still has a

19 land line?

20 A. About 75 percent.

21 Q. What percentage of Americans uses the

22 Internet?

23 A. Again about 75 to 80 percent and I'm

24 assuming by that you mean in the home.

25 Q. Uses the Internet in the home?

80

1 A. Yes.

2 Q. What percentage of Americans uses the

3 Americans at all?

4 A. Probably close to 90 percent have some use

5 of the Internet in some way or fashion. You'd have

6 to include you'd actually have to include mobile

7 devices in that. You'd have to include people who

8 access Internet in limited fashion on the job, who

9 access kiosks but it would be a very sizeable

10 percentage of the population.

11 Q. Do you know whether the percentages of

12 Americans that still have a land line is greater or

13 lesser than number of Americans that use the

14 Internet anywhere may have just begin me that

15 answer?

16 A. I think I just gave you that answer. You

17 know I would -- I haven't seen specific numbers but

18 I think I would be on solid ground to say that more

19 people have access to the Internet in some form than

20 have a land line.

21 Q. It's the case isn't it that Americans that

22 still have a land line are demographically different

23 than Americans who do not correct?

24 MR. AWERBUCH: Objection.

25 THE WITNESS: Well if, if by that you mean

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81

1 that the demographic characteristics are not the

2 same, then the answer is yes.

3 BY MR. COHEN:

4 Q. One of the demographic characteristics on

5 which what I'll call the land line group and the non

6 land line group differ is their income is that

7 correct?

8 A. That that would be generally correct yes.

9 Q. And another is their age?

10 A. That would be correct.

11 Q. And another is their education?

12 A. Probably. Yes.

13 Q. Are there others that I've neglected?

14 A. Have well, the length of time they have been

15 in their residence for example. That's the only

16 other one I could think of.

17 Q. Assume that a survey of American consumers

18 is conducted and further assume that that survey is

19 demographically un representative of American

20 consumers in a substantial way. Can you conclude

21 without additional information whether or not the

22 surveys results are valid?

23 MR. AWERBUCH: Objection.

24 THE WITNESS: In some cases you may be able

25 to in some cases no.

82

1 BY MR. COHEN:

2 Q. In the cases where you cannot reach that

3 conclusion, what additional information would you

4 need?

5 A. Well it depends on what what the question

6 is. Some questions require a representative sample,

7 some questions do not. Some questions can be

8 addressed just by knowing what people in a sample

9 that is generally representative but not completely,

10 have to say whereas in other cases you you need a

11 more representative sample. So it really depends on

12 the question at hand.

13 Q. Are the questions in your consumer survey

14 questions such that a representative sample is

15 necessary?

16 A. I think it's necessary to have a generally

17 representative sample but I don't think it has to be

18 a perfect replica of the population characteristics.

19 Q. Would you say the same thing, that with

20 respect to Professor Fredericks survey it has to be

21 generally representative but not a perfect

22 replication of the population?

23 A. Well if we actually knew what his population

24 was I would say yes but we have no clue who was in

25 his population.

83

1 Q. If we assume that we know who his population

2 was would you then give the same answer?

3 A. Again you're asking me to assume something

4 that's false. You know if he had a representative

5 sample which he does not, then I would say great

6 it's representative?

7 Q. Let's take a look back at Exhibit 6, do I

8 understand correctly that your researchers made 70

9 thousand two hundred 79 phone calls to obtain a

10 final sample of four hundred people?

11 A. That's correct.

12 Q. Four thousand 20 people answered the phone

13 but refused to participate correct?

14 A. That's correct mm-hmm.

15 Q. The line below refuse to participate reads

16 RF underscore S1 dash not willing to participate and

17 then gives the number 291 do you see that?

18 A. I do.

19 Q. What does that line mean?

20 A. Well, these were people that answered the

21 first question which is would you be willing to

22 answer a few questions, they declined.

23 Q. What's the difference between people who

24 refused to participate and people who refused to

25 answer or declined to answer a few questions?

84

1 A. Well the people who refused to participate

2 just very early in the telephone call said I'm not

3 interested and didn't even get to the first

4 question. The 291 people who were asked the first

5 question and declined.

6 Q. So it would be accurate to say that the

7 number of people who refused to participate after

8 the first question is 4,020 plus two hundred nine

9 one?

10 A. That's correct.

11 Q. What, if anything, do you know about the

12 demographic characteristics about the people who

13 refused to participate after the first question?

14 A. I know little about the demographic

15 characteristics other than they were a random sample

16 of the sampling frame.

17 Q. What does not qualify interviews what does

18 the not qualified interviews category mean?

19 A. Well this is actually broken out above in

20 the total not qualified interviews there in the

21 middle of the page and so people could have been

22 disqualified for participation for a number of

23 reasons, so for example, there were two individuals

24 where the call was answered by someone under 18 and

25 there was no one in the household who was 18 or

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85

1 older. We disqualified people who were employed by

2 either a plastic product manufacturer or a waste

3 disposal association largely because we thought they

4 would have unusual knowledge there were 11 of those

5 people so we disqualified them we had a few people

6 who had not purchased a plastic container. We had

7 some people that did not have a general

8 understanding of biodegradeable and then we

9 established some general quotas based on age and

10 gender and in some cases we were over quota when we

11 reached an individual so that individual was

12 disqualified so it was basically disqualification

13 based on questions in the screener questionnaire.

14 Q. Why did you exclude people who reported not

15 personally purchasing if I plastic product or any

16 anyone that came in a plastic container or made of

17 plastic in the past month I think email paraphrasing

18 there queening question five?

19 A. Because I thought those individuals would be

20 un representative of the population as a whole.

21 Most people purchase something made of plastic,

22 packaging products what have you and to the people

23 had not had a recent experience of purchasing

24 something made of plastic I thought they would be un

25 represent tiand we excluded them.

86

1 Q. Was it possible some people had purchased

2 something made of plastic in the past month but

3 didn't remember?

4 A. That's possible.

5 Q. Is it possible they weren't telling the

6 truth because they had changed their minds about

7 whether they wanted to participate in the telephone

8 survey?

9 MR. AWERBUCH: Objection.

10 THE WITNESS: Anything is possible. I think

11 it unlikely.

12

13 Q. Why do you think it's unlikely?

14 A. I don't know why -- there's no good reason

15 for that to have occurred. First of all they don't

16 know they're going to be disqualified if they give a

17 particular answer to that question. There's no way

18 that the respondent in advance of giving an answer

19 to any of one of these questions knows whether a

20 particular answer will take them further into the

21 questionnaire or will result in the questionnaire or

22 interview being terminated.

23 BY MR. COHEN:

24 Q. You don't believe that some questions might

25 make it at least plausible to a respondent that by

87

1 giving a particular answer they're more likely to be

2 disqualified?

3 MR. AWERBUCH: Objection.

4 THE WITNESS: Again anything is possible but

5 there's no reason why an individual should think

6 these questions should should lead them to believe

7 that they will be disqualified.

8 BY MR. COHEN:

9 Q. What, if anything, do you foe about the

10 demographic characteristics of the people who you

11 deem not qualified for the reason that they

12 allegedly had not purchased a plastic product or

13 plastic container within the past month?

14 A. I don't know anything about the demographic

15 characteristics than they were part of the larger

16 sampling frame.

17 Q. Your researchers spoke with 39 respondents

18 who stated that they did not have a general

19 understanding of the term biodegradeable correct?

20 A. That's correct.

21 Q. It's possible that those 39 people changed

22 their minds about whether they want today

23 participate in the survey?

24 MR. AWERBUCH: Objection.

25 THE WITNESS: Again anything is possible but

88

1 there was no way for them to know what what outcome

2 would be associated with any answer to this

3 question. This could have been a question that was

4 asked without an instruction to terminate. It could

5 have simply been we like to know for everybody

6 whether they havave general understanding or not but

7 we're going to ask everybody. There was no way for

8 a respondent to know whether that was going to

9 happen or that we might terminate them. In fact

10 there was no way for a respondent to nope whether

11 any of these questions would result in termination.

12 BY MR. COHEN:

13 Q. It's possible isn't it that these 39

14 consumers or some of them had a general

15 understanding of what the term biodegradable meant

16 but weren't confident enough in that understanding

17 to participate once they had an understanding what

18 that survey was about?

19 MR. AWERBUCH: Objection.

20 THE WITNESS: Well they don't at that point

21 know what the survey is about, so I don't I don't

22 know how they could, how they could arrive at that

23 logic. I mean they they may decide that they don't

24 want to participate conceivably but i don't see the

25 i don't see any logic that would lead them to

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1 believe one way or another what what the survey is

2 ultimately going to be about.

3 BY MR. COHEN:

4 Q. The question they were asked was do you have

5 a general understand being of what the term

6 biodegradeable means that's Exhibit 2 question

7 section six, it's possible that consumers who

8 answered no to this question did have an

9 understanding but weren't confident enough to

10 express that to the researcher correct?

11 MR. AWERBUCH: Objection.

12 THE WITNESS: Anything is possible.

13 Certainly in answering this type of question the

14 degree of certainty, the level of knowledge, plays a

15 role in determining how an individual may respond.

16 BY MR. COHEN:

17 Q. And in your professional experience and I'm

18 not talking about this specific question, but in

19 your professional experience generally, it's

20 sometimes the case that people hold views but if

21 they aren't sufficiently confident in those views

22 they may be reluctant to express them correct?

23 A. That can on occasion happen, yes.

24 Q. Why did you exclude people who were under

25 18?

90

1 A. Because we were interested in individualed

2 who had achieved majority status, it's very common

3 in doing surveys of consumers to collect data only

4 on individuals who are 18 of age and older.

5 Q. Why were you interested in only in

6 individuals who had achieved majority status?

7 A. Because I thought they were the ones most

8 likely to be relevant. I think if we were looking

9 at people who were under 18 we would we would open

10 up a whole variety of other things that we would

11 have to ask, so for example, were they still living

12 at home, did they make purchases as contrasted to

13 their parents making purchases for them. So I think

14 there are a whole set of questions that begin to

15 arise for people who are under 18 that we would have

16 had to have asked to further qualify them that we

17 didn't have to ask for people who are 18 and older.

18 Q. Limiting the survey to people that are 18 or

19 older then makes the survey easier to conduct?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: Well I think it makes it

22 easier to conduct and it also I believe results in a

23 somewhat more homogeneous group since there are

24 many, many differences that begin to arise when you

25 dealing with people whore under 18 years of age.

91

1 Q. Assume there's a convenience store that

2 sells bottled water in plastic bottles. Someone

3 who's 17 might walk into the convenience store and

4 purchase a bottle of water on his or her own.

5 That's possible isn't it.

6 A. Oh sure sure certainly.

7 Q. And that purchasing decision could be

8 influenced by the word biodegradable on some of the

9 bottles but not others correct?

10 A. It's conceivable yes.

11 Q. And that could be true for someone who is 16

12 as well right?

13 A. Certainly could.

14 Q. Maybe even someone in junior high school?

15 A. That certainly could be.

16 Q. I mean there's probably there's a bottom to

17 this right? You you know can't be five or six.

18 What percentage of consumers of American consumers

19 are above the age where they have the ability to

20 make these purchases and potentially be influenced

21 by a biodegradeable claim but below the age of

22 majority?

23 A. I I don't know.

24 Q. You don't have any information at all

25 regarding the income ranges of your respondents do

92

1 you?

2 A. I do not.

3 Q. Have you conducted any sort of analysis

4 regarding whether persons with different income

5 levels understand the term biodegradeable

6 differently?

7 A. I have not done that analysis.

8 Q. You're not offering any opinion on that

9 subject are you?

10 A. I'm not planning to offer an opinion at this

11 point.

12 Q. You don't have any information at all

13 regarding where your respondents reside do you?

14 A. I don't have specific information, some of

15 that would be retrievable. We would have area

16 codes.

17 Q. You're not presently in possession of that

18 information?

19 A. No I'm not.

20 Q. And it didn't influence your analysis one

21 way or another?

22 A. It did not.

23 Q. You did not rely on that information?

24 A. I did not.

25 Q. The survey research firm might have that

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1 information correct?

2 A. That's correct.

3 Q. Did you have any understanding as to whether

4 or not the survey research firm was making an effort

5 to geographically balance the respondents in your

6 survey?

7 A. Well that would have happened by by random

8 selection. The computer assisted telephone

9 interviewing system that is used by the firm employs

10 a random selection from the sampling frame and and

11 the sampling frame itself was constructed to be

12 representative of United States. So by random

13 selection it should have been representative

14 geographically.

15 Q. How do you know that that the survey

16 research firm did the random selection process

17 properly?

18 A. I've worked with this firm for more than two

19 decades I have visited with them I have seen their

20 system. I've watched them collect data. I have

21 every confidence that they used it appropriately and

22 as I note in my report it is standard practice for

23 interviews to be monitored by by research

24 supervisors in real time. So I I have every

25 confidence that they followed the protocol.

94

1 Q. Sticking specifically with random geographic

2 selection biassed on different telephone numbers

3 from different regions, however well founded the

4 assumption you're making is, it would be fair to say

5 it's an assumption; you did not personally

6 investigate those?

7 A. I did not personally investigate that;

8 that's correct. I relied upon the laws of

9 probability.

10 Q. Is that another way of saying you relied

11 upon assumptions that you believed to be well

12 founded?

13 MR. AWERBUCH: Objection.

14 THE WITNESS: Well it's not an assumption.

15 I mean laws of probability are the laws of

16 probability. I relies on their their operating as

17 we would expect them to operate.

18 BY MR. COHEN:

19 Q. Reliance on the belief that at a survey

20 research firm is operating as you would expect them

21 to operate with respect to the gathering of data is

22 typical in survey research?

23 A. Can you read that back read read.

24 A. Yes it is quite typical as I indicated there

25 may be ways that you can monitor their procedures

95

1 and I've done that in this particular case.

2 However, you would also not want to be physically

3 present when the interviewing is taking place for

4 fear of compromising the double blind character of

5 the of the survey so yes you'd have to you have to

6 at some level make an assumption.

7 Q. Have you conducted any sort of analysis

8 regarding whether persons living in different

9 regions understand the term biodegradeable

10 differently?

11 A. I have not.

12 Q. You are not offering any opinion on that

13 subject are you?

14 A. I am not.

15 Q. In your survey respondents gender was

16 recorded by your researchers by observation?

17 A. That's correct.

18 Q. That means that someone listens to that

19 persons voice and makes an estimation regarding that

20 persons gender?

21 A. In general that is true although if it's

22 unclear the strucks are to ask some of the time I

23 don't want to characterize it as let me withdraw it.

24 A significant portion of the time it's done by

25 estimation correct.

96

1 MR. AWERBUCH: Objection.

2 THE WITNESS: No it's not done by

3 estimation. It's done by observation.

4 BY MR. COHEN:

5 Q. That's a fair point. A significant portion

6 of the time it's done by observation?

7 A. Yes.

8 Q. What's the error rate when survey

9 researchers make that observation?

10 MR. AWERBUCH: Objection.

11 THE WITNESS: Well it depends on what the

12 instructions arement if they're instructs to ask

13 when they're uncertain the error rate is very small.

14 If if people are not asking that question, then you

15 could find maybe 5 percent of the cases where the

16 gender may be miss identified in a telephone call.

17 BY MR. COHEN:

18 Q. In the situation where individuals are

19 instructed researchers are instructed to ask if they

20 are uncertain, what's the basis for your assertion

21 that the error rate in that situation is very small?

22 A. I I've done survey research using telephone

23 interviewing for more than 30 years and have seen

24 studies that have looked at just that issue and the

25 error rates tend to be very small.

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97

1 Q. Can you identify some of those studies for

2 me now?

3 A. Not off the top of my head. Some of them go

4 back to my days in advertising. They would not have

5 been published studies but they would have been

6 research that we did in the context of the

7 advertising research I was engaged in.

8 Q. Were the survey researchers in your survey

9 instructed to inquire if based on observation they

10 were uncertain?

11 A. They were. It's a part of their general

12 training, that if they can't determine, then they

13 should ask the question.

14 Q. How would you establish that that is a part

15 of their general training?

16 A. Well we'd have to look at the nature of the

17 training they receive.

18 Q. Is that something that was produced to the

19 Federal Trade Commission?

20 A. No it was not.

21 Q. Is that something you possess?

22 A. I don't believe I possess a copy.

23 Q. Let me direct you to Exhibit 2 which I

24 believe is again the screen shots of the survey

25 questions and specifically Stwo, it states record

98

1 gender from observation correct?

2 A. That's correct.

3 Q. It doesn't say inquire if you're uncertain

4 does it?

5 A. No it does not.

6 Q. Is there are other survey questions in

7 Exhibit 2 and I'll give you an example but let's go

8 to question one for instance. You would agree with

9 me would you not in question one there's a specific

10 instruction that is given to the researcher about

11 how to act depending on what answer they receive

12 correct?

13 A. Well there's an instruction about probing

14 and they were given the specific probe to use. And

15 they were given instructions about how to record the

16 response yes.

17 Q. And there's no instruction about probing if

18 the researcher is uncertain about the respondents

19 gender is there?

20 A. No there's not.

21 Q. Have you conducted any analysis of any sort

22 regarding whether persons of different genders

23 understand the term biodegradable differently?

24 A. I have not.

25 Q. You're not offering any opinion on that

99

1 subject are you?

2 A. If I'm asked to render an opinion I may. I

3 have data that would speak to that question.

4 Q. What data do you have that would speak to

5 that question?

6 A. Well we did capture gender in my survey and

7 and so we could do an analysis of people's responses

8 by gender. I have not done that.

9 Q. That you haven't done that withdrawn. It's

10 not in your report at moment correct?

11 A. It is not.

12 Q. And you haven't yet been asked to do that

13 correct?

14 A. I have not.

15 Q. It's is the case isn't it that

16 African-Americans represent approximately 12 point

17 6 percent of the population?

18 A. Approximately. I don't know the decimal

19 point but that's a reasonable range.

20 Q. Do they make up approximately 12 percent of

21 the population of persons 66 or older?

22 A. I -- I haven't looked at that recently I

23 don't know.

24 Q. More broadly, is the ethenografic make up of

25 the population consistent across age groups 18

100

1 through 34, 35 through 49, 50 through 65 and 66 and

2 older?

3 A. You're going to have to read that bck

4 A. Do you mean in my survey read read.

5 Q. No I mean across the population?

6 A. Then I'm lost because I don't know what

7 you're asking.

8 Q. Let's approach it this way and for the next

9 series of question we're talking about the

10 population we can put your survey to the side for

11 the moment. You would agree with me that there are

12 many ethnographic groups in the United States;

13 correct?

14 A. Certainly.

15 Q. And we discussed earlier that 12 percent of

16 the population overall is African-American correct?

17 A. That's correct.

18 Q. And you testified that you weren't sure one

19 way or the other whether they afternoon Americans

20 also make up 12 percent of the population of 65 and

21 solder. I don't know as I sit here today?

22 Q. So you don't know to phrase it differently

23 whether with respect to African-Americans, the

24 ethgraphic make up of the population six or older is

25 the same as it is with respect to the population at

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101

1 large?

2 A. I if I understand the question I think the

3 answer is no.

4 Q. So putting aside African-Americans as one

5 particular ethno graphic group is the ethnographic

6 make up of the population consistent across age

7 groups 18 to 34, 35 to 49, 50 to 65, and 66 and

8 older?

9 MR. AWERBUCH: Objection.

10 THE WITNESS: If what you're asking is are

11 there different percentages of various ethnic groups

12 within different age categories the answer is yes.

13 BY MR. COHEN:

14 Q. You actually -- your articulation is much

15 better than mine.

16 The ethnographic makeup of the population of

17 persons 56 or older is disproportionately white

18 isn't it?

19 A. I believe that's correct.

20 Q. A survey that over includes people that

21 includes people 66 and older would under include

22 minorities correct?

23 A. It may yes.

24 Q. The ethnographic makeup of the population of

25 persons 50 to 55 is disproportionately white isn't

102

1 it?

2 A. Yes again if you're defining if you're

3 defining white as to exclude Hispanics for example,

4 yes.

5 Q. A survey that over includes persons 50 to 65

6 would under include minorities including Hispanics

7 correct?

8 A. That would be correct.

9 Q. Have you conducted any analysis of any sort

10 regarding whether minorities understand the term

11 biodegradeable differently?

12 A. I have not.

13 Q. You're not offering any opinion on that

14 subject are you?

15 A. I am not.

16 Q. You set quotas for how many people 66 and

17 older could participate in your survey correct?

18 A. I did.

19 Q. And what were those quota, was that quota

20 based?

21 A. Well the quota was based on a desire to

22 assure some minimum representation of various age

23 groups and was and they were not hard quotas, they

24 were a range, and I as I sit here today I don't

25 recall the specific range but the idea and purpose

103

1 behind doing so was to simply assure a reasonable

2 disPersian across the age categories.

3 Q. You mentioned that part of the goal was to

4 assure minimum representation. Why wouldn't the

5 goal be to assure as close to optimal representation

6 as possible?

7 A. Because I didn't think that that was

8 necessary given the topic.

9 Q. And why didn't you think it was necessary

10 given the topic?

11 A. Because I wasn't interested in specific age

12 differences. I was interested in peoples general

13 understanding of the term biodegradeable,

14 biodegradeable, and I simply wanted a reasonable

15 representative and diverse set of age rainings I

16 wasn't trying to match the population of the United

17 States.

18 Q. The quota for people 66 and over was a

19 hundred 15 out of four hundred correct?

20 A. I think that's correct yes.

21 Q. A hundred four people were excluded because

22 you'd exceeded the quota for people 66 and older

23 correct?

24 A. That's correct.

25 Q. The quota for people 50 to 65 was a hundred

104

1 15 out of four hundred correct?

2 A. I'm sorry.

3 Q. I apologize I'll just repeat the question

4 withdraw the question he'll repeat it?

5 A. Yeah.

6 Q. The quota for people 50 to 65 was a hundred

7 15 out of four hundred correct?

8 A. That's correct.

9 Q. 41 people were excluded for exceeding that

10 quota correct?

11 A. That's correct.

12 Q. The percentage of respondents in your survey

13 that were 66 and over is 29 percent correct?

14 A. I believe that's correct.

15 Q. What percentage of the population of

16 consumers aged 15 and older do people 66 and older

17 represent?

18 A. I'm sorry. I you're going to have to repeat

19 the question or read it back.

20 MR. COHEN: Ma'am would you read it back

21 read read.

22 THE WITNESS: As you sit here today I really

23 can't tell.

24 BY MR. COHEN:

25 Q. You that's not something you consider when

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105

1 preparing your report?

2 A. It was not. I -- I didn't even look at

3 consumers under 18.

4 Q. Let me rephrase the question to make sure

5 that, and I don't mean to be excessively anytime

6 picky here but what population of the consumers aged

7 18 and over to people 66 and over represent?

8 A. As I sit here today I don't recall that

9 either.

10 Q. And that's not something you considered when

11 preparing your report?

12 A. I didn't give it a great deal of thought no.

13 Q. You didn't give it any thought or not a

14 great deal of thought?

15 Q. What thought did you give it?

16 A. Well I did give it some thought at the time

17 I established quotas but I was more concerned with

18 establishing you know representation, adequate

19 representation in the various age categories and not

20 with mapping the exact demographics of my sample

21 into the population.

22 Q. If I told you will that the percentage of

23 consumers aged 15 and older represents around 18

24 percent of the population of American consumers

25 would you have any reason to disagree with me.

106

1 A. Let me be sure I understood the question,

2 that consumers 15 years and older represent.

3 Q. No I misspoke you're absolutely right. If I

4 told you that the percentage of consumers who are 66

5 and older represents around 18 percent of the

6 population of American consumers who are 15 and

7 older, would you have any reason to disagree with

8 me?

9 A. That sounds about right.

10 Q. The percentage of respondents in your survey

11 that was 50 to 65 or that were 50 to 65 years of age

12 was also 29 percent correct?

13 A. I believe that's correct.

14 Q. What percentage of the population of

15 consumers aged 15 and older do people 50 to 65

16 represent?

17 A. Again as I sit here today I I don't know the

18 answer to that and and I certainly don't know for 15

19 or 18.

20 Q. That's not something you considered when

21 preparing your report correct?

22 A. No only in the most general sense of

23 thinking about establishing quotas.

24 Q. If I told you will that the population of

25 American consumers between 50 to 65 represent around

107

1 24 percent of the population of American consumers

2 aged 15 and older would you have any reason to

3 disagree with me.

4 A. Again that sounds about right I haven't

5 looked recently at population demographics.

6 Q. And just so that the record is clear and I

7 apologize for asking you a question where I think I

8 already know the answer, what percentage of the

9 population of consumers aged 18 and older do people

10 50 to 65 represent?

11 A. Again as I sit here today, I I can't tell

12 you.

13 Q. That's not something you considered when

14 preparing your report?

15 A. I didn't consider that specific fact. I

16 mean as I said I did consider it in the sense of

17 trying to establish reasonable quotas for the

18 sample.

19 Q. Have you conducted any analysis of any sort

20 whether persons of different ages understand the

21 term biodegradeable differently?

22 A. I have not.

23 Q. You're not offering any opinion on that

24 subject are you?

25 A. I have not been asked to offer an opinion.

108

1 Again it's something for which we have survey data

2 that could be used to inform the quell but I have

3 not been asked to address it.

4 Q. Photocopy you were provided with information

5 suggesting that older Americans aged 50 and above

6 have a different understanding of the terms

7 biodegradable than younger Americans would that

8 affect your opinions in this case?

9 A. No.

10 Q. Why not?

11 A. I've collected data on both groups. I have

12 I have data. They're both represented here and to

13 the extent that they are different then it would be

14 reflected in the data.

15 Q. Would it affect the conclusions that you

16 believe could be drawn from the data?

17 A. I don't believe so.

18 Q. So even if we assume that older Americans

19 have different views with respect to what the term

20 biodegradeable means and over -- we further assume

21 that older Americans are over represented in your

22 survey. That would not affect your conclusions?

23 A. No it would not

24 Q. And why not?

25 A. Because we have data on various age groups

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109

1 we could look at the degree to which there may be

2 age differences. I frankly don't think there are

3 any based on my reading of the responses but as I

4 said earlier I haven't done a specific analysis by

5 age.

6 Q. What if that analysis were done and

7 demonstrated that Americans below the age of 50 had

8 different views with respect to what biodegradeable

9 meant?

10 A. And what?

11 Q. Would that affect your conclusions?

12 A. Well it would depend on what the differences

13 were. It may or may not. They could be uncertain

14 in different ways but still be uncertain. They

15 could be skeptical in different ways but still be

16 skeptical, it would really depend on what the nature

17 of the differences were.

18 Q. What would be some examples of differences

19 where it would affect your overall conclusions?

20 A. Well if one group categorcally greed on a

21 particular definition of biodegradeable and another

22 group did not, then I think that's a that's an

23 interesting piece of information and and might be

24 worth pointing out.

25 Q. Is that the only circumstance you can think

110

1 of where differences between the age groups might

2 affect your conclusions?

3 A. Well, I yes I think so.

4 Q. You'd agree that measured against the actual

5 population of American consumers, ageded 15 and

6 older the population in your survey is un

7 representative at least because Americans 50 and

8 older are over represented.

9 MR. AWERBUCH: Objection.

10 THE WITNESS: Well we keep using 15. I've

11 been very clear that there was no one in the sample

12 under 18. And so so they're not even in the sample

13 so the fact that they're not in the sample clearly

14 means that they are they're not over weighted.

15 They're I mean they're not there. Many.

16 MR. COHEN: Ma'am can you read back my

17 question. Read read. Are.

18 THE WITNESS: You asked me if Americans 15

19 and older are over represented they're not in my

20 sample. They can't be overrepresented.

21 BY MR. COHEN:

22 Q. That's not what I asked?

23 A. Okay.

24 Q. I'll ask it again. You'd agree that

25 measured against the actual population of American

111

1 consumers aged 15 and older so not just those

2 between 15 and 18, but 15 basically to the end of

3 you are an American consumer the population in your

4 survey is un representative at least because

5 Americans 15 and older are over represented?

6 MR. AWERBUCH: Objection.

7 THE WITNESS: Are you saying 50 or 15?

8 MR. COHEN: Ma'am can you read back the

9 question please read read.

10 MR. COHEN: I misspoke.

11 THE WITNESS: Okay.

12 BY MR. COHEN:

13 Q. You're absolutely right. So the end of the

14 question I'll try ask see if I can ask the whole

15 question again. You'd agree that measured against

16 the actual population of American consumers aged 15

17 and older the population in your survey is un

18 representative at least because Americans 50 and

19 over are over represented?

20 A. Okay. I would agree that is not

21 representative of the actual age distribution of the

22 American population. Aged 15 and older yes.

23 Q. Notwithstanding the fact that it is not

24 representative of the actual age distribution of the

25 American population of consumers it remains

112

1 sufficiently valid for the court to rely upon?

2 MR. AWERBUCH: Objection.

3 THE WITNESS: Absolutely. Yes.

4 BY MR. COHEN:

5 Q. So let me take a step back. I'm just going

6 to re-ask the question that we had I had some

7 difficulty articulating earlier but I want to make

8 sure that I don't get a different answer if I use

9 the word 18 instead of 15. You'd agree that

10 measured against the actual population of American

11 consumers age 18 and older the population in your

12 survey is un representative at minimum because

13 Americans 50 and older are over represented?

14 MR. AWERBUCH: Objection.

15 THE WITNESS: It is certainly the case that

16 is un representative with respect to the actual

17 population demographics related to age.

18 BY MR. COHEN:

19 Q. And not with stand being that feature they

20 remain sufficiently valid for the court to rely

21 upon?

22 MR. AWERBUCH: Objection.

23 THE WITNESS: Yes it does.

24 BY MR. COHEN:

25 Q. Have we marked Exhibit 7? Let's take a look

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113

1 at Exhibit 7 Dr. Horizontal a copy four?

2 A. Thank you.

3 Q. And let me provide copies inform your

4 counsel do you recognize this document?

5 A. I do, it's printed in a different fashion

6 than I believe it was produced but it I do recognize

7 it.

8 Q. And what is this document?

9 A. These are summary tabulations of the results

10 of the survey.

11 Q. I direct you to the results for question S4.

12 Which is do you or anyone in your household work for

13 any of the following is that correct?

14 A. That's correct.

15 Q. 44 percent of the respondents in your survey

16 was were coded as being quote retired slash

17 unemployed slash disabled correct?

18 A. That's correct.

19 Q. What percentage of American consumers aged

20 15 and older are retired?

21 A. As I sit here today I don't know.

22 Q. That's not something you considered when you

23 prepared this report?

24 A. I really didn't.

25 Q. Have you conducted any analysis of any sort

114

1 regarding whether retired persons understand the

2 term biodegradeable differently?

3 A. I have not.

4 Q. You're not offering any opinion on that

5 subject are you?

6 A. I have not, I have not been asked to offer

7 such an opinion. The data would lend themselves to

8 doing an analysis of that but I have not done that

9 analysis.

10 Q. What percentage of Americans consumers

11 agented 15 and older are disabled?

12 A. I as I sit here today I don't know.

13 Q. That's not something you considered when you

14 prepared your report?

15 A. I really didn't.

16 Q. Have you considered any strike that. Have

17 you conducted any analysis of any sort regarding

18 whether disabled persons understand the term

19 biodegradeable differently?

20 A. I have not.

21 Q. And you're not offering any opinion on that

22 subject are you?

23 A. I'm not.

24 Q. What percentage of American consumers aged

25 15 and older are unemployed?

115

1 A. Off the top of my head, I I can't tell you.

2 And it would vary depending on how you defined

3 unemployed. People have left the labor force and

4 are unemployed but the unemployed statistics don't

5 reflect that. But it's generally thought the real

6 unemployment rate is somewhere in the vicinity of 12

7 to 14 percent.

8 Q. The percentage of American consumers age 15

9 and and older who are unemployed is not something

10 you considered when you prepared this report is it?

11 A. It's not.

12 Q. Have you conducted any analysis of any sort

13 regarding whether unemployed persons understand the

14 term biodegradeable differently?

15 A. I have not.

16 Q. You're not offering any opinion on that

17 subject are you?

18 A. I'm not.

19 Q. Does disabled as it's used here in table S

20 four, include only people who are too disabled to

21 work or does it include people with disabilities but

22 who are employed?

23 A. It could include people who are disabled and

24 employed depending on how people interpreted the

25 term.

116

1 Q. It would depend on how survey respondents

2 interpreted the term?

3 A. Yes generally I think they would interpret

4 it in the sense of are you employed or not and

5 disabled would be unemployed but I suppose someone

6 could interpret it differently.

7 Q. You're not sure one way or the other

8 definitively?

9 A. No I'm not.

10 Q. Can you tell me how many of the 44 percent

11 are disabled, how many are unemployed, and how many

12 are retired?

13 A. I cannot.

14 Q. Does that data exist?

15 A. I don't believe that's the way the question

16 was asked. But I will tell you momentarily. No

17 there was simply one category retired unemployed

18 disabled that people could select from the list of

19 organizations that people might work for or not work

20 for.

21 Q. Put differently it's not possible to tell

22 how many are disabled how many are unemployed or how

23 many are retired based one the way the question was

24 asked?

25 A. That's correct.

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117

1 Q. Is it possible to determine based on the

2 data produced to the FTC and also publicly available

3 census data or other publicly available data that

4 you're aware of, whether your survey overrepresents

5 people in the category defined as retired slash

6 unemployed slash disabled relative to the percentage

7 of American consumers falling within that category.

8 A. It would probably be possible to find some

9 census data that could be brought to bear for

10 purposes of comparison.

11 Q. How would we be able to do that if we're not

12 able to tell how many persons are retired versus how

13 many persons in your survey were unemployed versus

14 how many persons in your survey were disabled?

15 A. Well we would need to find data that either

16 asks the question in the same way and this is a very

17 common way to ask this question or we would need to

18 try to aggregate across multiple categories.

19 Q. Can you aggregate across multiple categories

20 if a person is both unemployed and disabled?

21 A. You could get a rough estimate but you run

22 risk of doing some double counting. We would only

23 count them once in response to this question but if

24 you had data that broke things out retired

25 unemployed disabled a person might conceivably

118

1 appear in more than one category.

2 Q. Is there some piece of survey publicly

3 available survey data that you can point me to where

4 we could get an estimate of the percentage of the

5 population of American consumers that fall within

6 this category retired slash unemployed slash

7 disabled?

8 A. Not as I sit here today. As I said there

9 are this is a very common way to ask about this

10 particular category of unemployment or employment.

11 But I can't point you to a specific source today.

12 Q. Assume we can't tell one way or the other

13 whether those individuals are over represented or

14 under represented or represented in exactly the

15 optimal proportion, your survey would still remain

16 sufficiently valid for the court to rely upon it?

17 A. Yes I believe so.

18 Q. And why is that?

19 A. We have, we have data across a range of

20 types of individuals, employed not employed, you

21 know we can look at their responses broken out by

22 whatever category we choose to put them in and

23 determine whether or not there are differences so if

24 there's reason, you know if there's reason to do

25 that analysis if somebody would like to determine

119

1 whether or not the results are different for retired

2 unemployed disabled and the rest of the sample the

3 data are available we could certainly do that

4 analysis. I don't have any reason to believe that

5 we will get a difference.

6 Q. You didn't ask consumers how much time it

7 would take for plastic labels biodegradeable to

8 biodegrade did you?

9 A. I did not.

10 Q. That's probative of the consumer per session

11 question at issue in this case isn't it?

12 MR. AWERBUCH: Objection.

13 THE WITNESS: It certainly is.

14 BY MR. COHEN:

15 Q. Why didn't you ask consumers how much time

16 it would take for plastic labeled biodegradeable to

17 biodegrade?

18 A. Because I was more interested in

19 understanding what peoples general understanding of

20 biodegradability was near obtaining responses in the

21 respondents own words that provided any caveats

22 qualifications contin general sees and we did get

23 people talked about plastic specifically. We had

24 people who talked about other materials and I

25 thought this was a much more useful way of asking

120

1 questions about the understanding of

2 biodegradability in general which was the purpose of

3 the survey rather than the biodegradability of a

4 very specific substance.

5 Q. Are there any other reasons?

6 A. That's the primary reason. I don't I don't

7 think of any other reasons.

8 Q. You indicated that you were more interested

9 in and I'm paraphrasing but correct me if it's not

10 fair pair phrase. You're more interested in

11 consumers views of biodegradability generally. Why

12 were you more interested in that?

13 A. Because I think that's the more relevant

14 question here. To the degree that there are, that

15 people perceive there to be differences in the

16 biodegradability of materials, I think it's

17 important to understand that. If you ask people

18 only about one material focus people on only one

19 material you really don't get an understanding of

20 the rich necessary that's associated with the

21 understanding of biodegradability and that's what I

22 was really interested in. We pick up differences

23 associated with materials in context in the

24 responses of the survey, to the survey, but we we

25 get a much richer understanding of biodegradability

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121

1 by asking the more general open ended questions.

2 Q. You weren't told by anyone that you should

3 focus on that topic were you?

4 MR. AWERBUCH: Objection.

5 THE WITNESS: I wasn't, no I was not told

6 that I should focus on that topic. I was given two

7 other surveys, one by the American plastics counsel

8 and one by SYNOVATE and asked to evaluate those and

9 asked you know how I would do those differently

10 check check so they they guided my thinking and both

11 of those dealt with the more general question of

12 biodegradability and that's why I took the approach

13 that I did.

14 BY MR. COHEN:

15 Q. Certain of the questions in APCO and sin

16 survey specifically asked consumers for estimates of

17 biodegradation times correct?

18 A. They do check check.

19 Q. You didn't ask consumers how much time it

20 would take for plastic labeled easier to conduct

21 biodegradeable to biodegrade did you?

22 A. I did not.

23 Q. That's the primary consumer perception

24 question at issue in this case isn't it?

25 MR. AWERBUCH: Objection.

122

1 THE WITNESS: It's I think it's a subclass

2 of the question that's that's at issue in this case.

3 I think that there is a broader issue and that is

4 what do people understand about biodegradability

5 generally.

6 BY MR. COHEN:

7 Q. When you say it's a subclass of that issue,

8 what do you mean by that?

9 A. Well what I mean by that is if we're not

10 applying a term that demonstrably has many different

11 meanings to consumers in a specific context and I

12 don't think that you can interpret results obtained

13 for plastics or any other specific material alone

14 without having a more general understanding of what

15 people understand the term biodegradability to mean.

16 Q. Is there any other reason why you didn't ask

17 consumers how much time it would take for a plastic

18 labeled easier to conduct biodegradeable to

19 biodegrade?

20 A. I was interested as I've said before I was

21 interested in peoples general perceptions of

22 biodegradability without putting in their heads any

23 information about context or material and you know

24 that that's the way the questions were framed and to

25 the extent that we got results that speak to context

123

1 or speak to plastic or other materials I think

2 that's relevant and important but again it's the

3 more general understanding of biodegradability that

4 I think is really important here.

5 Q. Why not ask two sets of questions one

6 directed to understanding consumers general

7 understanding of biodegradability and another asking

8 easier to conduct specific questions such as how

9 much time it would take for plastic labeled easier

10 to conduct biodegradeable to biodegrade?

11 A. Because that wasn't really within the scope

12 of my assignment. I was really asked to evaluate

13 the concept of biodegradability recollect to design

14 a survey that would correct the flaws that are

15 present in the Synovate survey and the APCO survey,

16 and that's what I did.

17 Q. And the scope of your assignment was defined

18 by counsel?

19 A. My clients generally do define the scope of

20 my assignment yes. Even if they're attorneys.

21 Q. And in this case specifically the scope of

22 your assignment was defined by counsel correct?

23 A. That's correct.

24 Q. You would agree with me wouldn't you, that

25 well let me just ask one further question. There

124

1 isn't any reason why putting aside what the scope of

2 your assignment is and putting aside the fact that

3 you have an obligation to comply with the scope of

4 your assignment, there isn't any reason from the

5 standpoint of consumer perception research why one

6 could not ask both questions related to the general

7 understanding of biodegradability and then also ask

8 questions specific to how much time it would take a

9 plastic labeled easier to conduct biodegradeable to

10 biodegrade correct?

11 MR. AWERBUCH: Objection.

12 THE WITNESS: You could you certainly could

13 design a different survey that asks different

14 questions.

15 BY MR. COHEN:

16 Q. You would agree with me wouldn't you, I

17 think you've mentioned this I think already that

18 consumers understanding of what the word

19 biodegradeable means is central to this case?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: It's my understanding that it

22 is yes.

23 BY MR. COHEN:

24 Q. Consumers understanding of what a word means

25 is always based at least to a degree on their prior

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1 belief about what the word means isn't it?

2 A. If they have a prior belief yes.

3 Q. If an advertiser doesn't do anything one way

4 or another to influence how consumers withdrawn.

5 It's the case that you had a screening question to

6 ask consumers in your survey whether or not they had

7 a general understanding of what the phrase term

8 biodegradeable means correct?

9 A. That's correct.

10 Q. So at least with respect to the respondents

11 in your survey we're were not dealing with

12 individuals who had no prior belief as to what the

13 term biodegradeable means?

14 A. That's correct.

15 Q. So if an advertiser doesn't do anything one

16 way or another to influence how consumers understand

17 a word, then those consumers understanding of that

18 word will come exclusivelily from their prior belief

19 correct?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: Well or the media or it could

22 be any number of other sources that may may come

23 into place, it's certainly prior beliefs are one of

24 those.

25 BY MR. COHEN:

126

1 Q. Well prior beliefs are an amalgam of media

2 things the consumer has seen on television, things

3 someone told the consumer recollect the consumers

4 education and so forth you'd agree with that right?

5 A. All of those things can influence prior

6 beliefs yes.

7 Q. So if the advertiser doesn't do anything one

8 way or another to influence how consumers understand

9 a word, then their understanding of what that word

10 means will come exclusively from their prior beliefs

11 however those prior beliefs were otherwise created?

12 MR. AWERBUCH: Objection.

13 THE WITNESS: No. Consumers very frequently

14 when confronted with something they don't understand

15 pull out a smart phone go to the Internet and gather

16 information. And that that wasn't a prior belief.

17 It's it's an immediate communication that will

18 influence their their perceptions. But it's not

19 it's not a prior belief. It's another piece of

20 information.

21 BY MR. COHEN:

22 Q. Do you have any evidence that suggests that

23 any consumer confronted with the claim easier to

24 conduct biodegradeable went online and googled or

25 researched what the word biodegradeable might have

127

1 meant?

2 A. Yes.

3 Q. And what is that?

4 A. Well I actually Googled the question how

5 long does it take material to biodegrade and there

6 is an enormous amount of material on the Internet

7 that's present. People have contributed to it.

8 Some of this are blogs, some of it are these formal

9 websites. Some of it is is trade organizations.

10 There's just an enormous amount of activity around

11 the definition of this term so clearly clearly

12 consumers are engaged in a conversation about about

13 this topic employ which suggests that people are

14 going on line and sharing information obtaining

15 information.

16 Q. Do you know one way or another whether those

17 consumers are doing that after being exposed to

18 marketing materials regard ECM plastic?

19 A. Do you know whether those consumers that

20 you're reference other represent any material

21 portion of the population of American consumers.

22 MR. AWERBUCH: Objection.

23 THE WITNESS: I don't know what portion they

24 may represent no.

25 BY MR. COHEN:

128

1 Q. Assume that an advertiser doesn't define the

2 word free in it's ads. This is probably a problem

3 you've confronted before. Consumers would

4 understand free based solely on their prior beliefs

5 regarding that term correct?

6 MR. AWERBUCH: Objection.

7 A. Unless there's other information available

8 yes.

9 BY MR. COHEN:

10 Q. Do you think it's likely the consumers would

11 Google was the word free means?

12 A. Some consumers might very well it's not at

13 all difficult to find consumers sharing information

14 with one another. You know what does this mean and

15 obtain information from others. I don't know how

16 many people would do that but it's certain lip

17 happens.

18 Q. Let's assume that no material number of

19 consumers when confronted with an advertisement that

20 says the word free Google what the word free means.

21 And let's assume that the advertiser understands

22 free to mean that a promotional item is free but the

23 consumer will still pay shipping and handling.

24 Consumers understand the term free to mean no cost

25 of any kind. So do you understand that the

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1 framework that I'm asking to you assume?

2 A. I do.

3 Q. In this case, if an advertiser and consumers

4 have a different understanding of what the word free

5 means, the advertiser has a burden or the burden to

6 clarify what it means correct?

7 MR. AWERBUCH: Objection.

8 THE WITNESS: I think that's the case where

9 if people didn't have an understanding and I believe

10 they do, that free often excludes shipping and

11 handling. That at some point in the purchase

12 process it would be appropriate for the advertiser

13 to indicate shipping and handling not included.

14 BY MR. COHEN:

15 Q. So if a material portion of consumers did

16 not understand that free included shipping and

17 handling then if I understood you correctly the

18 advertiser would have a burden at some point in the

19 purchase process to clarify that?

20 A. I -- I think that is correct yes.

21 Q. Let's take a look all the way back to

22 Exhibit 1, your report in this case. Let me actual

23 landfill just ask one follow-up question about the

24 hypothetical we were discussing. In the situation

25 where the advertiser would have an obligation to

130

1 clarify at some point in the purchase process that

2 shipping and handling is going to be assessed so

3 it's not prix as some portion of consumers might

4 understand that term if the advertiser fails to do

5 that you would agree with me would you not that

6 deception has occurred?

7 MR. AWERBUCH: Objection.

8 THE WITNESS: Well I have to put this in the

9 context of your hypothetical which is consumers

10 don't have an understanding that shipping and

11 handling is not included in the term free.

12 BY MR. COHEN:

13 Q. That was my hypothetical?

14 A. If that is the case then I would agree with

15 you.

16 Q. Let's take a look at Exhibit 1 I believe

17 page 27?

18 A. By the way when you get to a stopping point

19 it would be nice to take a break.

20 Q. Do you need to -- do you want to take a

21 lunch break. I mean this is a logical point.

22 A. At least a break.

23 MR. COHEN: We'll go off the record.

24 (A discussion was held off the record.)

25

131

1 (Whereupon, at the hour of

2 11:50 a.m., a luncheon recess was

3 taken, the deposition to be resumed

4 at 12:50 p.m.)

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132

1 LOS ANGELES, CALIFORNIA; TUESDAY, JULY 1, 2014

2 12:50 P.M.

3

4 DAVID STEWART, Ph.D.,

5 having been previously duly sworn,

6 was examined and testified as follows:

7

8 EXAMINATION

9 BY MR. COHEN:

10 Q. Welcome back Mr. Stewart I hope you had a

11 nice lunch. Did you speak with anyone during the

12 lunch break regarding this deposition or this matter

13 in any way?

14 A. No.

15 Q. Just to back up something that I believe we

16 discussed earlier and again I don't want to

17 mischaracterize prior testimony. If I understood

18 you correctly, one potential problem with adding

19 additional questions to a telephone survey is that

20 it makes the telephone survey longer. Did I

21 understand that correctly?

22 MR. AWERBUCH: Objection.

23 THE WITNESS: Yes that's an issue. The

24 length of a survey particularly on the telephone is

25 a cause of concern so the more questions you add the

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1 longer it can get.

2 BY MR. COHEN:

3 Q. And that is something that is of concern?

4 A. Well we either have to keep things short or

5 we have to make some sort of effort to insent people

6 to stay on the phone for a longer period of time.

7 Q. What do you mean insent people to stay on

8 the phone or a longer period of time?

9 A. Well if we know it's going to be a half hour

10 hour interview then it mates be necessary to

11 preschedule that so we identify a time where we call

12 people back. We might need to compensate people

13 some sort of monetary incentive or some other

14 incentive value that might get people to cooperate.

15 Q. Were any of your calls in your survey

16 prescheduled calls?

17 A. No they were not.

18 Q. Were any of the respondents compensated in

19 any way?

20 A. No they were not.

21 Q. Let's go to Exhibit 1 which is your report

22 page 27 the last sentence in the first paragraph

23 thus my survey makes clear that two of the three

24 criteria for finding a deception one a false belief

25 attributable to the action of the marketer two

134

1 material to consumers is not present did I read that

2 correctly?

3 A. Yes you did.

4 Q. You refer in a footnote to Jeff Richards

5 1990 deceptive advertising behavioral study of a

6 legal concept is that correct?

7 A. I do.

8 Q. And the footnote says that that source will

9 provide a discussion of the legal definition of

10 deception and it's behavioral science foundations.

11 Is that correct?

12 A. That's correct.

13 Q. Is it your contention that the Jeff Richards

14 book states that deception cannot be found without a

15 false belief attributable to the market?

16 A. He discusses three criteria for the

17 establishment of deception in those that that's

18 included in the in the list yes.

19 Q. What is the first criteria?

20 A. Well there's three criteria. The first is

21 that there is a false belief the second is that

22 false belief has been created by an action or

23 inaction by the marketer. And the third is that it

24 is material to the consumer that it has some effect

25 on consumer behavior.

135

1 Q. Are you relying on any source other than the

2 jest Richards book for the contention that deception

3 under the FTC act requires a false belief an

4 attributable to the action of the marketer?

5 A. Yes.

6 Q. And what are those other sources?

7 A. It's the FTC standard.

8 Q. And can you be more specific please?

9 A. I -- I can't point you to a specific

10 document. It it's available on the website. But it

11 it's a well known well established FTC standard.

12 Q. You mean available on the FTCs website?

13 A. Yes.

14 Q. Is there a particular case you can direct me

15 to?

16 A. Not as I sit here today I mean there there

17 is a document on the FTC standards for deception and

18 I -- I just can't point you to the particular source

19 at the moment.

20 Q. And your contention is that that document

21 that is the FTC standards on deception includes the

22 requirement that the false belief be attributable to

23 the action of the marketer?

24 A. That's the standard yes.

25 Q. Other than what you've characterized. The

136

1 Jeff Richards source and what you've characterized

2 in a general way as FTC deception standards is there

3 negligent else that you're relying upon for that

4 proposition?

5 A. Well there's a very substantial literature

6 in the market in the advertising area that deals

7 with deception. I'm not pointing to any one of

8 those documents or published papers but certainly

9 knowledge of that literature informs my opinion.

10 Q. A control group isn't always necessary in

11 consumer survey research is it?

12 A. No there's certain types of consumer survey

13 research that does not require control.

14 Q. And you can talk to consumer survey research

15 without using a control correct?

16 A. I have.

17 Q. Can you identify well in how many instances

18 have you conducted consumer survey research without

19 using a control?

20 A. I -- I I can't give you an estimate many

21 vase are not intended to establish cause at there's

22 no need for control in those cases. I've done a lot

23 of descriptive surveys for my academic research

24 consulting and in litigation where there was no need

25 for control but we were trying to establish

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1 causation.

2 Q. Were you trying to establish causation of

3 any sort in the survey that you conducted for ECM

4 bio films?

5 A. No.

6 Q. Do you understand Professor Frederick to be

7 attempting to establish causation in the survey that

8 he conducted for complaint counsel?

9 A. That's my understanding yes.

10 Q. That he was attempting to establish

11 causation?

12 A. A relationship between peoples response to

13 the the ECM biofilms logo and certain beliefs yes.

14 Q. So are you contending and I'm not sure if

15 you are, are you contending that Professor Frederick

16 should have used a control?

17 A. Well if he's going to assess causation he

18 should have used a control yes.

19 Q. What would you suggest that that control

20 might have been?

21 A. I haven't given that a great deal of

22 thought. I mean one approach could have been to

23 simply not use the ECM logo and simply put the term

24 biodegradeable and determine whether the action of

25 the marketer in this case the ECM, produced a

138

1 different kind of response than a response to the

2 word alone.

3 Q. Are you aware whether Professor Frederick

4 showed certain consumers plastic products that deny

5 contain the ECM logo?

6 A. It was my understanding that he did yes.

7 Q. And that he showed other sets of consumers

8 about plastic products that did contain the ECM logo

9 correct?

10 A. That's my understanding yes.

11 Q. And why does that not constitute a control?

12 A. Well it could be a control. I'm not I I

13 don't think I'm following your question. The issue

14 is you know what are you controlling for? It's my

15 understanding that that and I'd have to go back and

16 look at his mini surveys but that some of the

17 surveys were such that they used the buy oh film

18 logo and some did not but I don't remember all the

19 specifics of what was done.

20 Q. Professor Frederick asked consumers in

21 substance how much time would it take for plastic

22 label BCM Biodegrade to -- strike that.

23 In substance Professor Frederick asked

24 consumers how much time it would take for plastic

25 label ECM Biodegradable to biodegrade. Do you

139

1 recall that generally?

2 A. I do.

3 Q. Is it your contention that there was no

4 adequate control for that question?

5 A. I don't believe there was an adequate

6 control. I think an adequate control would have to

7 include something that examined what people

8 interpret the term biodegrade to mean.

9 Q. What would be question be that would

10 correspond to the question I just asked that would

11 constitute an adequate control?

12 A. Well again I -- I I have not been asked to

13 design such ape survey and I haven't thought a great

14 deal about it but I would think that there would be

15 a need to use the term biodegrade as a part of the

16 control in order to correct for pre-existing beliefs

17 about the definition of the term.

18 Q. Can you give me an example of what that

19 question would sound like?

20 A. It would sound very similar to the question

21 you just read me what would differ would be what

22 people are shown.

23 Q. The question that I just read you was not a

24 question that was accompanied by any visual image?

25 A. Okay.

140

1 Q. So if it's just a written question what

2 would an adequate control be?

3 A. Well I don't know because if it's just a

4 written question, I'm not sure what the basis of

5 that information of an answer would be based on.

6 Q. It wouldn't be based on a consumers

7 perception or understanding of how much time it

8 would take for plastic labeled ECM biodegradeable to

9 biodegrade?

10 A. Well it it would be based on what they

11 believe biodegrade means I don't know what the ECM

12 buy oh film component ads. If people are not aware

13 of that they have no basis for answering that

14 question.

15 Q. One circumstance when a control would not be

16 used is when it's unclear when strike that. One

17 circumstance when a control would not be used is

18 when it's unclear what would constitute an adequate

19 control correct?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: Well, certainly if you can't

22 think of what a control would be, you can't very

23 well design one in but the fact that you don't have

24 a control puts you in a position where the inference

25 of causality is is really problematic so it's

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1 certainly the cause that you may have situations

2 where you don't know what the control might be and

3 obviously you can't just show people a blank piece

4 of paper but the that makes it very difficult to

5 make any inferences about causality.

6 BY MR. COHEN:

7 Q. What is the inference that you understand

8 Professor Frederick to be making with respect to

9 cause at when he collected data regarding how much

10 time consumers believed it would take for plastic

11 products labeled ECM biodegradeable to biodegrade?

12 A. Well I think what he is attempting to do is

13 to draw inferences about what the ECM buy oh film

14 product, it's label, it's logo, information about

15 it, implies to consumers.

16 Q. If I understand you correctly and I think

17 maybe I don't, but if I understand you correctly you

18 seem to be testifying that Professor Frederick's

19 question which I've just paraphrased was assessing

20 how consumers understood the language that was

21 presented to them?

22 A. I think in some cases, the difficulty I'm

23 having is that Professor Frederick asked a lot of

24 different questions and I don't know specifically

25 which one you're referring to and so if we really

142

1 want to get into the specifics you know we're going

2 to have to actually look at what was done, what was

3 shown the respondent and what question was asked.

4 It you know there's just too much data there for me

5 to do justice to an answer from memory without

6 having the.

7 Q. Let's assume that Professor Frederick did in

8 fact ask how much time would it take for plastic

9 label ECM Biodegradable to biodegrade?

10 A. Without showing people anything.

11 Q. Without showing people anything.

12 A. Okay.

13 Q. What's the causal inference that you

14 understand Professor Frederick to be attempting to

15 draw from the results to that survey?

16 A. That that statement causes consumers to

17 infer something about the length of time that the

18 product will take to biodegrade.

19 Q. And what would be the control necessary in

20 your mind to give that question sufficient validity?

21 A. I would probably remove the reference to the

22 specific product and simply ask as I did in my

23 survey how long do you think it would take for

24 something to degrade. I might even go so far as to

25 ask how long would it take for plastic to degrade.

143

1 I think those provide a baseline that of responding

2 that is independent of any reference to the

3 Econsiders M bio film product.

4 Q. So if Professor Frederick had in fact asked

5 the questions that you just described then there

6 would be adequate control?

7 A. Perhaps. Again I would need to see the full

8 design, what people were asked, and and how the

9 analysis was done but certainly that would get

10 closer to a control.

11 Q. You did review Professor Frederick study in

12 preparation for this deposition?

13 A. Yes, I did.

14 Q. You didn't use a control in any of the work

15 you performed for ECM correct?

16 A. I did not I was not trying to make any

17 inferences about causality.

18 Q. Do you contend that Professor Shane

19 Frederick is biassed?

20 A. I.

21 MR. AWERBUCH: Objection.

22 THE WITNESS: I think that the approach he

23 took to the analysis demonstrates a lack of

24 objectivity so to that degree yes I think there's

25 bias.

144

1 BY MR. COHEN:

2 Q. Have you contending that Professor

3 Frederick's approach lacks objectivity or that

4 Professor Frederick lacks objectivity?

5 A. Well I can't speak to his personality

6 characteristics. I think his approach the way he's

7 gone about his analysis lacks objectivit.

8 Q. Would another way to say this be that

9 Professor Frederick lacks objectivity because his

10 methodology is improper?

11 A. I'm not sure that's the way I would say it I

12 certainly think his methodology lacks objectivity.

13 Q. I'm not sure that I understand the

14 difference. You've testified that Professor

15 Frederick's methodology lacks objectivity. Correct?

16 A. That's correct.

17 Q. And what is the basis for your belief that

18 his methodology lacks objectivity?

19 A. Well there's several. I mean first of all,

20 the work that he did was not double blind. Both he

21 and his coders were very much involved in the in the

22 coding and both were very much aware of what they

23 were what they were hoping to find. It's also very

24 clear that he has failed to code items responses

25 that people gave that are clearly relevant such as I

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1 don't know, it depends, and has coded some other

2 responses that are you know at best sillily, he's

3 adopted a coding system that I think serves to in

4 analytic system serves to inflate his findings with

5 respect to how long it takes for something

6 particularly plastic to biodegrade.

7 Q. Methodology aside do you have any other

8 basis for your contention that Professor Frederick

9 lacks objectivity?

10 A. No. I what I what I'm addressing and what I

11 addressed in my report really went to the question

12 of the objectivity of the approach and the

13 methodology to the research that's reported. It's

14 not a statement about a personality characteristic.

15 Q. If it were established that your methodology

16 was improper, would that mean that you lack

17 objectivity?

18 MR. AWERBUCH: Objection.

19 THE WITNESS: No not at all. It I mean

20 things can be improper and to be quite objective I

21 mean things can be improper for many reasons, a lack

22 of objectivity might be one of them but there are

23 many reasons why a piece of research may not be

24 valid that have little to do with whether the

25 researcher is objective or not.

146

1 BY MR. COHEN:

2 Q. Can an expert lack objectivity yet conduct a

3 methodologically sound survey?

4 A. Yes I think so.

5 Q. Can an expert conduct a methodology I can

6 flawed survey yet be objective?

7 A. Yes I think so.

8 Q. You testified that if it were to be

9 established that your methodology was improper that

10 would not necessarily mean that you lack objectivity

11 correct?

12 A. That's correct.

13 Q. What is it about your critiques about

14 professor Frederick's methodology are that suggests

15 to you that he lacks objectivity?

16 A. I think I've answered this question. As

17 I've indicated I think the failure to code what are

18 clearly relevant answers serves to bias the results

19 in a particular direction. I think the way he has

20 coded some of the responses serves to bias the

21 results in a particular direction. Those are those

22 are the bases for my opinion.

23 Q. Let me direct you to paragraph excuse me

24 page 30 of your report. I apologize page 11 of your

25 report. I need to make it clear for the record that

147

1 I'm going to read what it says. I'm obviously doing

2 that because that's what it says. I'm in no respect

3 endorsing this. On the second full sentence on the

4 page it is quite possible for our respondent for a

5 Google survey to be an eight year old or a male

6 pretending to be a woman did I read that correctly?

7 A. Yes you did.

8 Q. What's wrong with including in a survey of

9 American consumers men pretending to be women?

10 A. Because they are not who they are and by

11 definition they are there to perpetuate a ruse and

12 so I would be we very reluctant to accept a response

13 by someone pretending to someone they are not. I

14 think it would call into question the validity of

15 that that information that they supply.

16 Q. How do you know that none of the respondents

17 to your consumer survey were men pretending to be

18 women?

19 A. Because we actually had a live interviewer

20 who was in contact in talking with the respondents

21 so it's highly improbable. Is it possible? I

22 suppose but highly improbable.

23 Q. Why do you believe it's more improbable over

24 the phone than over the Internet?

25 A. Well because on the Internet we know that

148

1 many people develop different person as at nettites

2 there's a pseudonym for emails there's a whole

3 industry that sells people privacy protection and

4 and temporary email addresses all for the purpose of

5 people one being able to protect their privacy and

6 two being able to pretend to be someone that they're

7 not. Well documented phenomena.

8 Q. There could though be men pretending women

9 who answer phone calls that?

10 A. Could happen but it's less likely because we

11 have real interaction between two human beings.

12 Q. And how would that real interaction be able

13 to guard against again I don't like the language but

14 men pretending to be women?

15 A. The voice should help identify who the

16 person is that the interviewer is talking to. We

17 don't have that cue available on the Internet. We

18 also don't have a lot of data that suggests that

19 when people are called on phone surveys that they

20 assume alternative identities. We do have pretty

21 good evidence that happens frequently on the

22 Internet.

23 Q. Has there been research done as to whether

24 people participating in phone surveys sometimes give

25 inaccurate demographic information?

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1 A. Yes there is.

2 Q. Has there been research regarding whether

3 respondents on telephone surveys sometimes give an

4 accurate information regarding their gender?

5 A. They can do that yes.

6 Q. With when your report states that it's quite

7 possible for a respondent to be a man pretending to

8 a woman, what does quite possible mean?

9 A. What I really mean there is that there's no

10 control at all there's no ability to determine who

11 the individual is at the other end of the survey.

12 Unlike well constructed well maintained Internet

13 consumer panels where there is an effort made to

14 verify the identity of individuals who participate

15 in surveys, in Google survey there's no ability to

16 identify who is the respondent that is completing

17 the survey.

18 Q. When you say no ability, you mean absolutely

19 no ability or no ability that's sufficiently

20 reliable in your mind?

21 A. In my view at this stage in the development

22 of Google consumer survey, I don't think there is

23 sufficient ability for any given survey to identify

24 with sufficient certainty who the respondent is to

25 allow a conclusion that the survey is in any way

150

1 valid.

2 Q. Please quantify the probability that any

3 given respondent was a man pretending to be's woman?

4 A. I can't qualify you. I'm for you. I'm

5 simply giving you I gave you two examples of how

6 somebody could pretend to be who they are not.

7 There are many other ways people could pretend to be

8 who they are not. The problem is there's simply no

9 way with Google consumer survey at least as it is

10 used today to verify the identity of the respondent

11 in contrast to well designed surveys using well

12 constructed and well maintained Internet consumer

13 panels.

14 Q. When the report states that it's quite

15 possible for a respondent to be an eight year old

16 what does quite possible mean in that context?

17 A. That it's possible that there could be an

18 eight year old among the respondents.

19 Q. Can you quantify the possibility?

20 A. I didn't attempt to quantify the

21 possibility. It simply making the point that there

22 is no way that you could control for that given the

23 way that Google consumer survey operates.

24 Q. Are you familiar with the content provider

25 Google survey uses?

151

1 A. I'm generally familiar with them I don't

2 think they provide a comprehensive list of the

3 content providers I think they provide general

4 categories.

5 Q. Do you know whether they provide any

6 specific examples at all?

7 A. I'm not aware of any and it has been

8 changing over time in the two years that it's been

9 in existence.

10 Q. You don't know one way or the other whether

11 Google consumer surveys uses content providers that

12 are likely to appeal to small children do you?

13 MR. AWERBUCH: Objection.

14 THE WITNESS: I don't have specific

15 information but they do use sites that they

16 categorize as entertainment. They do have sites

17 that they categorize as sports. Those would be

18 appealing to younger children.

19 BY MR. COHEN:

20 Q. Out of more that 28 thousand respondents in

21 Professor Frederick surveys how many would have to

22 be small children before the results are no longer

23 probative of questions before the court?

24 MR. AWERBUCH: Objection.

25 THE WITNESS: The mere possibility that that

152

1 could half invalidates the entire survey.

2 BY MR. COHEN:

3 Q. So if it were established let's assume that

4 some how we had the ability to know this beyond any

5 doubt, that there was one eight year old who had

6 responded to one of Professor Frederick's questions

7 and no one else below the age of 15 had responded.

8 That would invalidate the entire survey?

9 A. Well no because you've no provided more

10 information because now you've actually suggested

11 there's an eight year old and that everybody else is

12 not an eight year old. Now we can now we can parse

13 the data, we can say awe somebody slipped in, we now

14 have data on that. The problem with the Google

15 consumer survey is we don't know that. We don't

16 know if there was none one a thousand, we just have

17 no way of we have no way of knowing that.

18 Q. So we if I understand your testimony

19 correctly we have no way of knowing whether one out

20 of every 28 was an eight year old?

21 MR. AWERBUCH: Objection.

22 THE WITNESS: We have no way to verify that

23 characteristic. That is correct.

24 BY MR. COHEN:

25 Q. Even assuming it would be possible to make

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1 reasonable assumptions about that information, the

2 inability to know for certain invalidates the entire

3 survey?

4 A. Well I don't know what assumptions you would

5 make you can certainly make assumptions as you did

6 that there's only only identifiable eight year old

7 and if you if you know that then I think you change

8 the character of the data but as long as there is no

9 way to identify that individual or the number of

10 individuals who meet that characteristic, then it's

11 an invalid survey.

12 Q. So you need to know precisely the number of

13 individuals who meet that characteristic in order

14 for the survey to be valid correct?

15 MR. AWERBUCH: Objection.

16 THE WITNESS: I think you need to know with

17 a high degree of certainty that the respondents are

18 who you think they are yes.

19 BY MR. COHEN:

20 Q. Do I understand your testimony correctly

21 that you need to know with a high degree of

22 certainty that the respondents do not include a

23 material number of individuals below say the age of

24 15?

25 MR. AWERBUCH: Objection.

154

1 THE WITNESS: I don't know what you mean by

2 material but you would want to know you would need

3 to know how many of those individuals this were.

4 Ideally you would have a way of screening those

5 individuals out so they were never in the survey to

6 start with.

7 BY MR. COHEN:

8 Q. So if you don't know an exact number of the

9 individuals who shouldn't be in the survey

10 population, the survey is invalid and I'll add to

11 that let me withdraw the question because you you've

12 put an important qualifier in here that I think is

13 important to be fair. So if you don't know with a

14 high degree of certainty, not perfect certainty but

15 if you don't know with I a high degree of certainty

16 whether how many individuals are in the pool of

17 survey respondents who shouldn't be, the survey is

18 invalid?

19 A. I would say that the survey is invalid. I

20 certainly wouldn't make important decisions based on

21 such a survey.

22 Q. Have you ever communicated with anyone

23 associated with Google consumer survey?

24 A. Not with Google consume are surveys per se I

25 regularly communicate with people at Google but not

155

1 related to the surveys.

2 Q. Who do you communicate with at Google?

3 A. We have a couple people who sit on our board

4 of visors for something we call the M school. It's

5 an interactive digital branding program that we have

6 on campus and we have representatives at the local

7 office who are part of the advisory group.

8 Q. What does that advisory group do?

9 A. It gives us advice on our curriculum. They

10 do some team teaching with our faculty. They raise

11 interesting research questions with us.

12 Q. Have you ever conducted a survey on Google

13 consumer surveys?

14 A. I've not I've not I don't. I don't believe

15 it currently is sufficiently reliable that I would

16 ever do a survey on it.

17 Q. How many surveys have you conducted in your

18 career?

19 A. Thousands.

20 Q. Tens of thousands?

21 A. Well I don't know if it's tens of thousands

22 but certainly thousands.

23 Q. Out of the thousands of surveys you've

24 conducted in your career how many were conducted on

25 line?

156

1 A. Well early in my career there wouldn't have

2 been very upon many because you couldn't do it on

3 line but I would say in recent years probably

4 50 percent of the surveys I've done are done on the

5 Internet.

6 Q. Over the entire course of your career what's

7 the percentage that have been done on line?

8 A. Maybe I don't know maybe 10 percent. It's

9 been the ability to do valid vase on line is really

10 only about oh depends on who you talk to but five to

11 ten years old at most.

12 Q. And so that's the period during which you

13 indicated that you had done 50 percent of your

14 research survey research on line?

15 A. I believe that's correct.

16 Q. Do you consider yourself an expert who

17 specializes in Internet research?

18 MR. AWERBUCH: Objection.

19 A. Well I don't know what you mean by Internet

20 research. I mean I used Internet survey

21 methodology. Use Internet consumer panels regularly

22 and feel like I have a great deal of expertise in

23 that area. I have also studied the Internet as a

24 communication tool but there are certainly vast

25 areas of Internet in which I don't have have

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1 expertise.

2 BY MR. COHEN:

3 Q. Have you ever published a paper regarding

4 Internet research?

5 A. I have.

6 Q. And what paper or papers would those be?

7 A. Well there have been several of the there

8 was a paper I published in the journal much public

9 policy in marketing back around 2000 that dealt with

10 business models in the Internet space. I've done

11 several papers and book chapters around the Internet

12 and more broadly interactive media, papers that have

13 been published in the journal of the market much

14 academy science that's what comes to mind at the

15 moment.

16 Q. Have you ever spoken on a conference

17 regarding Internet research?

18 A. I have.

19 Q. Can you give me what examples you can

20 recall?

21 A. I've spoken at the academy of marketing

22 science at the American marketing association, at

23 the association, the American academy of advertising

24 those are the ones that come to mind.

25 Q. Can you give me dates or other information

158

1 you mentioned four there that are sufficient for us

2 to locate those presentations?

3 A. Well, if, if it was only a presentation they

4 may not have ever existed in hard copy form. I

5 certainly could identify dates. In fact my CV would

6 include my whole list of publications as well as a

7 lot of the presentations I've made so that would

8 give you an indication.

9 Q. But I don't mean to be difficult here I mean

10 there's more than one. I there's more than one

11 instance where you've presented at various different

12 professional organizations so is there any

13 additional information let me ask it this way I'll

14 withdraw the question. Do you have copies of any of

15 the presentations that you've mentioned?

16 A. It's possible I don't know.

17 Q. Are you willing to look and produce them to

18 complaint counsel?

19 A. Sure. I'm happy to do that.

20 Q. And?

21 A. As I said they're all listed or at least of

22 them would be listed on my curriculum vitae and the

23 title would probably make it very clear whether they

24 were about the Internet or not.

25 Q. And the same are true about the articles

159

1 that you mentioned are you willing to look and I'm

2 assuming you have copies of those articles produce

3 them to counsel?

4 A. I'm certainly willing to do that.

5 Q. What's the basis for the opinions included

6 in your report, regarding Google consumer surveys?

7 MR.: Objection.

8 THE WITNESS: I have investigated Google

9 consumer surveys and one reason that I've done so is

10 because the question comes up regularly in my role

11 as editor of a journal as to whether or not we would

12 accept for publication a paper based on Google

13 consumer surveys so I've done some investigation to

14 educate myself so that I can give a meaningful

15 relevant answer to that question. Most of what has

16 been written about Google consumer surveys to date

17 has appeared on in the trade press in online trade

18 blogs done by the market research community. There

19 are a number of things that have appeared on what's

20 called the green book online, the green book is

21 actually a publication that deals with market

22 research providers. I've also seen a study by the

23 pew foundation that's looked at the accuracy of

24 Google consumer surveys so I think I have I've

25 informed myself pretty well about what the general

160

1 thinking is about Google surveys and about what it

2 is. It is however as I indicated still evolving,

3 what it was two years ago when it was introduced is

4 quite different from what it is today. So it's not

5 it's not something that you could evaluate one time

6 and develop a definitive opinion. You kind of

7 really have to figure out where it is at this point

8 in time.

9 Q. You mentioned a journal. What journal?

10 A. I'm sorry.

11 Q. You mentioned a journal in which your role

12 with respect to that journal caused you to need to

13 become familiar with the consumer surveys?

14 A. I'm editor, currently the editor of the

15 journal of public policy and marketing it's a

16 publication of the American marketing association.

17 Q. Have you ever accepted for publication any

18 submission in which the author related in whole or

19 in part on google consumer surveys?

20 A. I can say with absolute certainty I have not

21 and I can say that for two reasons first of all

22 Google consumer surveys have not been along for very

23 long so there would have been very little

24 opportunity for people to have crafted papers using

25 that methodology but I at this point where I'd

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1 received such say paper I'm certain that I would

2 reject it.

3 Q. In how many instances that you're aware of

4 has Google consumer surveys been far off the mark?

5 MR. AWERBUCH: Objection.

6 THE WITNESS: I haven't done first of all I

7 haven't done a systematic analysis to see if I can

8 make that determination. Secondly that data are

9 really still quite sparse, the pew foundation

10 project found it was in some cases close in other

11 cases pretty far off. But there just aren't that

12 many instances. Again we've only had two years of

13 history. It is safe to say that one could not with

14 certainty even even with some modest uncertainty,

15 say you could rely on the results obtained from

16 Google surveys for anything more than maybe some

17 directional information maybe a quick snapshot where

18 you weren't really interested in something that was

19 very accurate. And I think that's the general

20 assessment of the research community today as well.

21 BY MR. COHEN:

22 Q. Is there someone in the research

23 communicator publication or references other than

24 those contained within your report that you could

25 direct me toward that would support the opinion that

162

1 you just provided?

2 A. Well I did cite some in the report itself.

3 I would refer you to those. Some of the citations

4 are to the green book which I mentioned earlier and

5 is available on line. There there in addition to to

6 those I've sighted there are other papers or blogs

7 by research professionals that have dealt with

8 Google consumer surveys, that's a very useful

9 source. And I would also I think the pew foundation

10 paper is is's very useful source as well there are

11 other sources I just can't identify them at the

12 moment.

13 Q. And you mentioned blogs other than the ones

14 that are in your report can you identify anything in

15 particular anything that would enable complaint

16 counsel to locate that information?

17 A. Well again I would send you to the green

18 book which is basically an on going on line trade

19 publication that is used widely by market research

20 professionals as a place to find probably the most

21 current discussion of Google consumer survey outside

22 of Google.

23 Q. As you sit here today how many instances can

24 you name where Google consumer surveys was far off

25 the mark?

163

1 A. I can't give you a specific count there was

2 one one report that I recall that was early in it's

3 history that was very far off the mark and I can't

4 even recall what was, what it was measuring. I

5 think it was measuring something about media usage

6 but I don't I don't have a specific recollection. I

7 know that in the pew foundation work it was close on

8 some many items but also pretty far off on some

9 other items but I don't remember how many things I

10 looked at.

11 Q. When you say media use was that a reference

12 to wickipedia?

13 A. I don't as I sit here today I don't recall.

14 Q. Let me direct you to your report at page 14

15 note 11. It's a reference to Jeffrey Henning 2012.

16 A. Mm-hmm.

17 Q. Have you read the material referenced?

18 A. I have.

19 Q. What sort of material is it?

20 A. It's on line columns it's blogs, it's it's

21 the sharing of practitioners with other

22 practitioners which is about the only thing you're

23 going to find that's currently available with

24 respect to Google consumer surveys.

25 Q. It's actually a tweet from Jeffrey Henning

164

1 isn't it?

2 A. Well it's a long tweet but yeah that's fair,

3 I -- I would characterize that in a way.

4 Q. Let's mark the blog with the tweet as

5 Stewart eight this is the long tweet that you were

6 referring to?

7 A. That's correct.

8 Q. DeR did you locate this blog post containing

9 the tweet yourself?

10 A. I did.

11 Q. And it provides one example where Google

12 consumer surveys produced an allegedly inaccurate

13 result doesn't it?

14 A. It does.

15 Q. It doesn't provide more than one such

16 instance does it?

17 A. I do not believe so know.

18 Q. Who's the author of the blog post?

19 A. I believe it's Jeffrey Henning.

20 Q. And what's the basis for that belief?

21 A. Because that's who's listed at the top as

22 the as the author.

23 Q. I want to make sure that my question is

24 clear. I am in agreement with you that Jeffrey

25 Henning is the author of the tweet. Who is the

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1 author of the blog post? Do you understand the

2 difference in the question?

3 A. I'm not sure that I'm understanding the

4 question.

5 Q. I will represent to you that my

6 understanding is that Jeffrey Henning is the author

7 of this tweet.

8 A. Okay.

9 Q. The tweet is excerpted from a larger blog

10 post. Which is a different piece of material. It

11 contains the tweet correct?

12 A. That's correct.

13 Q. Who's the author of the blog post?

14 A. It appears on what on what I believe is

15 brand savant. I don't know who the specific author

16 is in that case.

17 Q. So the author is not sighted in your report?

18 A. No.

19 Q. Is it relevant who the author is?

20 A. Not for my purposes.

21 Q. Is it relevant where the author works?

22 A. It may be but again not for my purposes.

23 Q. And why is it not relevant for your

24 purposes?

25 A. I'm simply presenting information that's

166

1 available in the in the market research community

2 raising concerns about Google consumer surveys.

3 It's what's available. If there were if there were

4 referee publications I would have sighted those but

5 Google scholar I'm sorry Google survey is so new

6 that there's very little available other than among

7 people who are kind of practicing professionals and

8 so I went looking for things that relevant of what

9 practicing professionals think of the product.

10 Q. Let's back up to page 11 foot note seven.

11 Did you locate the katrina lerman reference

12 yourself?

13 A. I did.

14 Q. What sort of reference is this?

15 A. Well this appears in the green book

16 something I've referred to earlier. It basically I

17 would characterize it as a blog. This is the green

18 book blog that it appears on. It's essentially an

19 on line publication in which marketing research

20 professionals share information about about best

21 practices.

22 Q. Is it relevant who katrina letter man is?

23 A. I not for my purposes.

24 Q. And why is that?

25 A. Again I'm simply reflecting the literature

167

1 that I have found assessing the quality of Google

2 survey. It's what the literature states.

3 Q. Is it relevant where she works?

4 A. I don't again not for my purposes.

5 Q. And for the same reason?

6 A. For the same reason.

7 Q. Let's go to page 14, footnote nine. Kevin

8 ought walled is the reference there. Did you locate

9 that reference to kevin Oswald yourself?

10 A. Yes, I did.

11 Q. What sort of content is referenced?

12 A. Well I believe it's content that exists on

13 the website of a research firm and I believe it's

14 discovery research group. And it's an it's an again

15 it's a discussion of his experience with Google

16 consumer surveys.

17 Q. Kevinos walled is employed by discovery

18 research group correct?

19 A. I think that is correct. I would have to

20 confirm that.

21 Q. Discovery research group is a competitor of

22 grog will consumer surveys is it not?

23 MR. AWERBUCH: Objection.

24 THE WITNESS: I actually I wouldn't

25 characterize it as that at all. I mean they are

168

1 involved in market research but Google consumer

2 surveys is not. So I don't consider them

3 competitors.

4 BY MR. COHEN:

5 Q. You don't consider Google consumer surveys

6 to be involved in market research?

7 A. What they do is not market research. It's a

8 way to monetize publications. It's not market

9 research by any definition. That anybody who's a

10 serious scholar would agree with.

11 Q. As a serious scholar what is your definition

12 of market research?

13 A. Well market research is the collection of of

14 information about consumers and about the

15 marketplace that carries a degree of certainty

16 sufficient to make decisions. Those decisions may

17 vary in terms of what they are and so that the

18 research may vary. But the market research

19 community does not consider Google scholar Google

20 surveys to be a serious competitor at this point.

21 Q. How do you know whether discvoery research

22 group considers google consumer surveys to be a

23 competitor or not?

24 A. I wouldn't consider them a competitor.

25 Q. How do you know -- please answer my

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1 question.

2 How do you know whether discovery research

3 group considers them to be a competitor?

4 MR. AWERBUCH: Objection.

5 THE WITNESS: My understanding of how Google

6 surveys is viewed in the market research community

7 would would suggest to me that serious market

8 research firms would not really consider it a

9 competitor.

10 BY MR. COHEN:

11 Q. Have you interacted with anyone at Discovery

12 research group?

13 A. I have not.

14 Q. Do you know whether they are a serious

15 marketing firm?

16 A. I believe they are.

17 Q. Then what is that belief based?

18 A. I'm aware of some of the work they have done

19 but I I don't have any further basis of that.

20 Q. You don't actually have any personal

21 knowledge as to whether or not they view Google

22 consumer surveys as a competitor?

23 A. I don't have I have not spoken to anyone

24 there I have no personal knowledge that is correct.

25 Q. Let's say on page 14 the sentence beginning

170

1 after footnote nine, it's about six or seven lines

2 from the bottom, another review noted the annoyance

3 factor, the tendency for respondents to give bog us

4 answers and concluded that Google surveys is just

5 terrible. It annoys your most important asset, your

6 reader. It misleads your partners, the brands, and

7 it forces you as a publisher to focus on volume over

8 quality, which reduces the overall value and lower

9 how much people trust your content did I read that

10 correctly?

11 A. Yes you did.

12 Q. Whose words are those?

13 A. Those are I -- I you've sighted I've given

14 you the sight there.

15 Q. Is this a paraphrase of the citation or are

16 those your words? I guess only let me withdraw the

17 question. Paraphrasing your words would be really

18 the same thing. Is it a paraphrase or are you

19 actually quoting from the citation there?

20 A. I think that that that where I'm quoting I

21 would probably have put it in quotes so I would say

22 it's probably a pair phrase.

23 Q. What source of content is footnote ten

24 referencing?

25 A. Again it's referring to a website that is

171

1 used by publishers to share information with one

2 another.

3 Q. Do you know whether withdrawn. The website

4 is, the specific content reference is a blog post

5 isn't it?

6 A. It is.

7 Q. And to whom is the blog post directed?

8 A. Yes I believe the post is directed at people

9 who are in the largely in the media and publications

10 industry.

11 Q. Did Thomas Beck tall do any research in

12 support of his conclusions?

13 MR. AWERBUCH: Objection.

14 MR. COHEN: What's the basis for your

15 objection.

16 MR. AWERBUCH: You're asking him something

17 that he can't really have personal knowledge of.

18 THE WITNESS: Yeah I'm as I have I've said

19 before I'm offering you what the what the opinion of

20 Google surveys is in the professional community.

21 What they're based on varies, there is some research

22 that I have pointed to, there are blogs there are

23 opinions, I don't necessarily know what all of the

24 opinions are based on but this is what's out there

25 about Google surveys.

172

1 BY MR. COHEN:

2 Q. I move to strike that as nonresponsive ma'am

3 can you please read back my question read read ?

4 A. I can't answer that I don't know I don't

5 know the basis of his opinion as I did say in my

6 responsive an answer.

7 Q. Does it matter who he is?

8 A. It may. For my purposes it doesn't really

9 matter.

10 Q. And why doesn't it matter for your purposes?

11 A. Because what I'm trying to reflect in my

12 report is what the general opinion published opinion

13 admittedly on the website on websites is of Google

14 consumer surveys at this point in time. Some of it

15 I'm certain is purely opinion some of it may be

16 based on research I pointed to some research but

17 there's a the some of all of these suggest an

18 enormous amount of skepticism of Google surveys at

19 least as it's currently constructed.

20 Q. The sum of all of these what is the all of

21 these that you're referring to?

22 A. I've given you a number of different sites

23 quotations that in summary, lead to a conclusion

24 that you need to be very careful about drawing any

25 inferences from Google surveys.

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1 Q. And it's so the all of these is the

2 references in your report?

3 A. That's correct.

4 Q. Anything else?

5 A. Well this is, this is a selection of things

6 that I have found over time. Many of these I was

7 aware of before before I even began working on this

8 project as you needed information in order to be

9 responsive to questions I was receiving from

10 authors. There are other things that I've seen.

11 This is this is simply representative.

12 Q. Can you identify some of the other things

13 that you've seen?

14 A. Not as I sit here today.

15 Q. Is it relevant where Thomas Beck tall works?

16 A. Not for my purposes.

17 Q. And for the same reasons you've already

18 explained?

19 A. Yes.

20 Q. You testified and I don't mean to

21 mischaracterize I'm sure you'll correct me if I'm

22 getting this wrong that Google has made refinements

23 in it's methodologies since it's inception is that

24 correct?

25 A. That's correct.

174

1 Q. Do you know what those refinements are Lynn?

2 A. I know some of them I know they have

3 expanded a number of questions that you can ask.

4 It's my understanding that when they initially

5 launched you were restricted to two questions and I

6 think that has been relaxed. I know they have

7 expanded a number of websites where Google surveys

8 now collects data. Those are the two things I'm

9 most aware of.

10 Q. Are there others?

11 A. I -- I don't know of others. Those are the

12 ones I'm aware of.

13 Q. How much does it cost to run a google

14 consumer survey?

15 A. It's my understanding it varies and I don't

16 I don't remember the price structure. It's based in

17 part on the number of questions that you're going to

18 ask. But I I don't remember the pricing structure.

19 Q. And when you say just so that the record is

20 clear when you say you don't remember the pricing

21 structure, do you remember anything about the

22 pricing structure?

23 A. Well only that it seems to take into account

24 the number of questions that you're going to, you're

25 going to ask. And I believe the sample sizes, but

175

1 other than that I'm not aware of what the specific

2 structure is.

3 Q. So you don't know how much it would cost for

4 instance to ask a hundred respondents one question

5 on Google consumer surveys?

6 A. Not as I sit here this afternoon no.

7 Q. How would you physically describe the user

8 experience when a potential respondent is presented

9 with a Google consumer survey?

10 A. I think it varies by by respondent. I do

11 think that one of the quotes I have here or one the

12 paraphrases I have here is is is accurate. I think

13 many respondents will be annoyed. They are they are

14 they did not come to the sight for the purpose of

15 participating in research un like a well constructed

16 Internet consumer panel. You know they came because

17 they wanted to access content and this now become

18 says a price a door if you will to get to the

19 content. And for some people I think that's going

20 to create annoyance, for some peoplit going to be a

21 matter of trying to get rid of it as quickly as

22 possible. Some people may in fact find of

23 interesting to give their response.

24 Q. It's your understand being if I understood

25 you correctly that google consumer surveys is

176

1 preventing an Internet user from accessing content

2 that he or she would otherwise be able to access?

3 Q. Well there may be other ways that people

4 could access the content. They might pay for the

5 content they may perform some other task to get to

6 the content but it is one of the things that would

7 be necessary in order to access the content. They

8 may have a choice of several things they can do to

9 do it?

10 Q. What would those several things be one would

11 be to answer the survey right and what would another

12 be?

13 A. Well the other would be to pay for the sight

14 to pay for the content. I you know, I don't know

15 what the others might be. I would envision

16 responding to a promotion. I think there are a lot

17 of things could be done. I don't know specifically

18 what what else they might do.

19 Q. Do you know one way or the other whether

20 potential participates in Google consumer surveys

21 are given the option of responding to a promotion to

22 access the content?

23 A. I don't know that with certainty no I have

24 seen some discussion but that may may be an I

25 direction in which they're going to go but I don't

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1 know if they have implemented that or not.

2 Q. Let's assume that a potential survey

3 respondent is given the option of responding to a

4 survey let's assume for further more it's one

5 question. Or paying to get money, excuse me paying

6 to get behind a pay wall and access otherwise

7 accessible content. Do you understood those

8 assumptions?

9 A. I do.

10 Q. Why is it your contention that someone

11 confronted with that decision would be annoyed or

12 disturbed by this?

13 A. Because people don't like barriers between

14 what they're interested in accessing and themselves

15 themselves whether that be to pay for content

16 publishers have had enormous difficulty getting

17 people to pay for content that is on line. Having a

18 survey pop up as a barrier is again an interference

19 with the goal of the respondent so some respondents

20 are going to be frustrated and annoyed by that think

21 wanted content and couldn't get it.

22 Q. Are respondents more likely to be frustrated

23 by having to pay to get behind the pay wall or

24 having to answer the survey question to get behind

25 the pay wall. I think they may be annoyed in either

178

1 ways case?

2 Q. And you have no view as to which the

3 respondent is likely to prefer?

4 A. I think you already asked most respond he

5 wants would say I just want access to the content.

6 Q. Have you considered whether some respondents

7 might be happy to answer a question that takes 15 to

8 25 seconds in exchange for being able to access

9 content behind a pay wall for free?

10 A. I don't have any document that there may be

11 some consumers who would be very happy to give a

12 response whether it be a nonsense cal sponsor a

13 meaningful response in order to get some content

14 that was of interest to them.

15 Q. What's the average response time across

16 Google consumer surveys?

17 A. I don't know. I -- I think it would

18 probably depend on the nature of the question and

19 and the number of questions.

20 Q. What's the average response time across

21 Google consumer surveys for single questions?

22 A. I off the top of my head I don't know that

23 as I sit here today.

24 Q. Is that relevant to you at all?

25 A. No it's not relevant.

179

1 Q. What was the average response time across

2 Professor Frederick's studies?

3 A. I have a recollection somewhere in the

4 neighborhood of maybe 20 seconds, but that's only a

5 but that's only a best estimate based on a fault I

6 will recall.

7 Q. Is that relevant to you at all?

8 A. No, sir.

9 Q. Why is that not relevant to you?

10 A. Because I think the data is so fundamentally

11 flawed whether they spent 20 seconds or 20 minutes

12 doesn't it doesn't rehabilitate the data.

13 Q. Is it relevant to you with respect to the

14 specific question of whether respondents are likely

15 giving serious consideration to to the question

16 before responding putting aside the overall validity

17 of the survey?

18 A. No.

19 Q. Why not?

20 A. Because I don't, I don't really think it's a

21 particularly meaningful piece of information. You

22 know it if it's ten seconds or 20, second really

23 doesn't matter. You can put a meaningful answer in

24 for a short question, something where one merely had

25 to check a box in in five seconds, one could sit and

180

1 stair at a screen while you're watching the world

2 cup ask you might be on the screen or you know a

3 minute before you respond and then you give a really

4 sillily response so I don't think that tells us

5 anything one way or another about the validity of

6 the responding.

7 Q. You've studied Professor Frederick data to

8 an agree at least haven't you?

9 A. To a degree yes.

10 Q. You would agree would you not that

11 substantial majority of respondents give to

12 biodegradation time questions give reasonably

13 plausible answers correct?

14 MR. AWERBUCH: Objection.

15 THE WITNESS: I wouldn't say an is

16 substantial majority. Recognize he doesn't even

17 code almost 40 percent of the responses. So so we

18 have to take those 40 percent and set those aside.

19 You know of the of the remaining roughly 60 percent,

20 yes I think the majority give what I would consider

21 to be plausible responses, not all but most.

22 BY MR. COHEN:

23 Q. You, there's obviously disagreement about

24 the parties about this but you believe I don't know

25 is a plausible response?

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1 A. Oh absolutely.

2 Q. And you believe that it depends is a

3 plausible response?

4 A. Not only do I believe it's a plausible

5 response it's my understanding from the reading I've

6 done about biodegradability that it's probability

7 the most correct response.

8 Q. So if you add together the respondents who

9 give was I'll call plausible numeric responses to

10 biodegradation time questions and the respondents

11 who give I don't know type responses and the

12 respondents who give it depends type responses,

13 roughly speaking what percentage of of Professor

14 Frederick's data did those three categories

15 represent?

16 A. I can only give you a ballpark figure.

17 Q. That's fine?

18 A. But I would say about 75 percent.

19 Q. Whether or not that, let's assume that

20 that's 75 percent figure is correct. Why does that

21 not indicate to you that 75 percent of the survey

22 respondents are taking the question seriously?

23 A. Because there's no evidence that they're

24 take being it seriously. They did not come to the

25 survey for the purpose of completing a survey, they

182

1 came to the task for a completely different reason

2 and were interrupted. And just because the

3 responses are plausible in that case one can give at

4 a plausible response that is that is not a real

5 response. It would be very easy for somebody to

6 simply type in one year and they don't believe that

7 it simply a way to make the screen go away and we

8 have no way people weren't screened in in way way

9 they weren't present to to any research you know the

10 entire incentive is to get that screen out of the

11 way and many people are will give a plausible

12 response just to get rid of it. Whether that's what

13 they really think or not, who knows.

14 Q. Why would someone give a plausible response

15 that isn't what they really think?

16 A. To get rid of the screen.

17 Q. So on they have one view but they give a

18 different plausible view to get rid of the screen is

19 that what I understand you to be testifying?

20 A. No I I'm not sure that they necessarily even

21 have a have a view. But they need to put something

22 in the box to make it go away so you know I've never

23 thought about that question before but one year

24 sounds about right. Let me type that in this thing

25 will go away and I can get on with my business. Now

183

1 it's perfectly plausible and in fact the logic there

2 is perfectly plausible but they didn't necessarily

3 have that belief prior to actually confronting this

4 task that has been set for them that stands as a

5 barrier to get to what they really want.

6 Q. What's a pilot study?

7 A. A pilot study is generally a study done on a

8 small scale for purposes of refining a larger study

9 for purposes of estimating sample size for purposes

10 of making modifications that may be necessary given

11 you know un wanted things that may happen during the

12 survey.

13 Q. Using that definition until I tell you

14 otherwise I'm only going to be asking about pilot

15 studies related in some way to litigation or

16 potential litigation do you understand that

17 assumption?

18 A. I do.

19 Q. Have you ever been involved with a pilot

20 study that was terminated prior to completion?

21 A. I'm sure I must have been. I don't have a

22 specific recollection.

23 Q. Can you estimate how many?

24 A. No. I'm surely that I'm sure that there

25 have been several. I've done a lot of pilot work

184

1 and often been the case that you know you get

2 results that suggest you don't want to go forward or

3 the client simply decides that they don't really

4 want to do the survey after all. But I don't I

5 don't have an estimate of the number of times.

6 Q. Can you think of any pilot studies in

7 particular that were terminated prior to completion?

8 A. I can't think of any as I sit here today.

9 Q. Have you ever been involved with a pilot

10 study that was terminated prior to completion

11 because of concerns with that the results would be

12 adverse to the party ultimately funding the study?

13 A. No I don't believe so.

14 Q. Let's look back at your report page five.

15 The section involve many scope of the assignment.

16 Please read the scope of the cement section and just

17 look up at me when you're finished.

18 A. Okay.

19 Q. The scope of assignment section doesn't

20 mention the manufacturers pilot study does it?

21 A. No it does not.

22 Q. Why not?

23 A. Because that study was done we're talk

24 become that study from the very beginning, but that

25 study was done very late in in my assignment and it

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1 I simply didn't get it into the scope of assignment

2 here. I would, I would encompass it within the the

3 the larger survey of consumer perceptions these were

4 consumers they just happen to be business people.

5 Q. Who's the we in that sentence?

6 A. Where? We?

7 Q. Ma'am could you read back professor

8 stewart's response?

9 Read read

10 A. I didn't hear a we in here.

11 Q. Ma'am maybe I misheard it. I thought I did

12 hear it. If you wouldn't mind just reading it. I

13 think it's towards the beginning.

14 Read read.

15 A. I and the attorneys in discussing what I

16 would do we we went back and forth about what my

17 assignment would be and it changed a bit over time.

18 Q. In what respects did it change over time?

19 A. Well early early on I had no notion that

20 that was going to be an expert to whom I was going

21 to be asked to respond early on I was merely asked

22 to comment on evaluate the saneovay and the an co

23 surveys subsequently I was asked to describe's

24 survey in the context of that discussion we talked

25 bye-bye whether it should be of end user customers

186

1 or whether it should be of manufacturers and in in

2 collaboration with the attorneys we agreed that

3 consistent with the approach that was used in

4 Synovate and APCO we would focus on end user

5 customers but that we would also do an manufacturers

6 survey at some point and ultimately we decided to do

7 a pilot on the manufacturers.

8 Q. You mentioned attorneys plural which

9 attorneys were you discussing it with?

10 A. Well it was largely with Lou Caputo I know

11 there were other attorneys who were in the

12 background but most of my conversation until very

13 recently was with Mr. Caputo.

14 Q. And who were the other attorneys in the

15 background that you know were in the background?

16 A. First name is Peter, and I don't recall his

17 last name. Eric has only recently become involved.

18 I don't think he was involved in the earlier

19 conversations so that would have been the group.

20 Q. You did in fact design a manufacturers pilot

21 study for ECM, correct?

22 A. I did.

23 Q. Let's go to page 27 of your report the

24 fourth line down beginning in the middle a pilot

25 study was conducted using a list of ECM customers as

187

1 a sampling frame did I read that correctly?

2 A. You did.

3 Q. Have you ever seen a copy of the list?

4 A. I was provided the list yes.

5 Q. Why was a copy of that list not produced to

6 complaint counsel?

7 A. Because it's confidential.

8 Q. Was there any other reason?

9 A. I haven't have an ethical responsibility to

10 protect theite of survey respondents and so if

11 defense counsel wants to provide it since they

12 provided it to me they're welcome to do that but I

13 will not provide the identity of my respondents.

14 Q. We won't do this on the record Mr. Our balk

15 but we're going to have to talk about this because

16 let me ask a couple follow-up questions?

17 MR. AWERBUCH: Are we on the record now.

18 MR. COHEN: No we're on the record the tire

19 entire time.

20 BY MR. COHEN:

21 Q. You possess a copy but it wasn't produced to

22 complaint counsel because what you understand to be

23 your confidentiality obligations to your survey

24 respondents correct?

25 A. That is correct.

188

1 Q. And what is your understanding if any as to

2 the relationship between whatever obligation that

3 there may be in that regard and the obligations that

4 ECM has under the part three administrative rules?

5 A. I don't have an understanding. As I said if

6 ECM elects to provide that information that's fine I

7 have an obligation to protect the confidentiality of

8 my research respondents.

9 Q. ECM has a copy of the list correct.

10 A. That's actually where I obtained it.

11 Q. Just so the record is clear, you obtained it

12 from Emord and associates and you infer that Emord

13 and associates obtained it from ECM?

14 A. That's fair yes.

15 Q. Did Mr. Sin clar, in particular provide the

16 information to Emord and associates that was then

17 provided to you?

18 A. It's I was given an initial list which

19 included multiple individuals in each of about two

20 hundred or so companies and I asked through the

21 attorneys that we identify one or two of the most

22 knowledgeable people in each organization rather

23 than having six or eight people that would then

24 become the focus of our work and it's my

25 understanding that Mr. Sinclare or someone in his

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189

1 organization did go through and identify those

2 victims and then through the attorneys I was

3 provided that.

4 Q. I won't keep repeating this question so the

5 record is clear, any place type of question that I

6 ask you in today's deposition that requires you to

7 disclose the names of the specific customers, you

8 are not going to respond correct?

9 A. That is correct.

10 Q. Okay. So we'll save me from having to ask a

11 series of questions related to that issue. Can you

12 tell me whether the list was in electronic format?

13 A. Well it was an it was transmitted to me as a

14 PD F.

15 Q. And transmited to you presumely as a PDF

16 means transmitted to you by email?

17 A. That is correct.

18 Q. So both you and Emord and associates have a

19 PD Fif an email?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: Well I may still have it's

22 possible.

23 BY MR. COHEN:

24 Q. And at least one point in time Emord and

25 associates had a copy of a sent email that contained

190

1 a PD F?

2 MR. AWERBUCH: Objection.

3 THE WITNESS: That's correct.

4 BY MR. COHEN:

5 Q. Were any of the companies on the list

6 company that's complaint counsel depose indeed this

7 matter?

8 MR. AWERBUCH: Objection.

9 THE WITNESS: Not to my knowledge I don't

10 know who complaint counsel has deposed.

11 BY MR. COHEN:

12 Q. So you don't know the answer to that one way

13 or the other?

14 A. I don't.

15 Q. When was the list provided to you?

16 A. Well the initial list which we which I refer

17 was probably provided quite early in my assignment.

18 Probably probably in the fall or winter of last

19 year. The smaller list the list of most

20 knowledgeable individuals was probably provided more

21 recently, maybe in April.

22 Q. So there was a list in fall or winter of

23 last year that contained around two hundred

24 companies and then there was a subsequent list in

25 April that contained in one or two individuals at a

191

1 subset of those two hundred companies when were most

2 knowledgeable. Did I say that correctly?

3 A. No.

4 MR. AWERBUCH: Objection.

5 BY MR. COHEN:

6 Q. That's why I'm asking?

7 A. No.

8 Q. Correct me?

9 A. No. As I indicated for each, I shouldn't

10 say for each but for many of the companies there

11 were six seven eight different individuals that were

12 listed. And with titles and it was clear to me just

13 in looking at the list that some were likely to be

14 more knowledgeable than others. And it also made

15 little sense to have more than a couple of

16 representatives of each company on the list for

17 purposes of trying to contact the company. I don't

18 want to bombard a company with lots of with lots of

19 calls. So what I asked for was a for each company,

20 a subset of one or two individuals names that would

21 be most likely to be most knowledgeable who could

22 then serve as the sampling frame for the survey

23 research.

24 Q. So I'll try it a second time and I'm going

25 to break it down in pieces and I want you to usually

192

1 we try not to interrupt you each. This time

2 interrupt me when I've got something wrong okay?

3 A. Okay uh-huh.

4 Q. In fall or winter you received a list of

5 approximately 200 companies from Emord and

6 associates?

7 A. That's correct.

8 Q. That list contained approximately six to

9 eight names per company?

10 A. Well as many as six to eight. In some

11 companies it was only a couple but in quite a number

12 of cases it could have been six to eight.

13 Q. So that list contained as many as eight

14 names per company for the two companies?

15 A. That's my recollection yes.

16 Q. You made a judgment that you didn't want to

17 bombard 200 different companies with as many as

18 eight phone calls and in April you were provided a

19 new list of two hundred companies but with a more

20 targetted group of one two two employees per

21 company?

22 A. That's correct.

23 MR. AWERBUCH: Is it a good time for a break

24 now. We've been going about an hour and a half, use

25 the restroom.

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1 MR. COHEN: Sure we'll go off the record.

2 MR. AWERBUCH: Thanks. Recess.

3 MR. AWERBUCH: Regarding any lists supplied

4 ECM or their counsel to Dr. Stewart to the best of

5 our knowledge we provided it to you in our 331A

6 production, to the extent that any list was not

7 production we're more than happy to oblige at this

8 point. Please feel freely to send an email or on

9 our on volition.

10 MR. COHEN: Okay.

11 BY MR. COHEN:

12 Q. A couple more questions. Dr. Stewart did

13 you speak to anyone during the break related to this

14 deposition or about this case?

15 A. No, sir I have not.

16 Q. This list that we've been discussing was it

17 amended at any time, was the list of two hundred

18 companies that were on the original list the same as

19 the one that was on the one that you received in

20 April?

21 A. Yes I believe so. And just to be clear it's

22 about recollect it's about two hundred companies

23 it's probably a little bit more than that. I just

24 don't remember the specific number.

25 Q. We won't hold you to the specific number.

194

1 About two hundred. And again I apologize if you

2 just answer my question but was there any, were

3 there any changes in the list between the ones that

4 were there in either the fall or winter of last

5 contrary and the ones that were there in April?

6 A. I do not believe so.

7 Q. And just withdrawn. Do you recall when you

8 received the list, the second list in April? Was it

9 early April late April, the middle of the month?

10 A. I don't have a specific recollection.

11 Probably just given the timing of the events it

12 probably would have been early April but I could be

13 wrong.

14 Q. When were you engaged in this matter?

15 A. Well I was contacted and actually did some

16 work beginning in September, maybe eastbound late

17 August of last year. I -- I did not get a formal

18 and I signed a confidentiality agreement in

19 September much I did not get a formal engagement

20 letter until I think December.

21 Q. Can you just give me a little more detail

22 about what you received in September? You mentioned

23 that there was I guess a confidentiality agreement?

24 A. Yes.

25 Q. And were there other documents that you

195

1 received in September?

2 A. The only other thing I recall having

3 received in September was the Synovate survey.

4 Q. And your communications in September were

5 with Mr. Caputo?

6 A. Yes.

7 Q. Any others?

8 A. No.

9 Q. It's been a while but if we go back to page

10 between onto the next sentence which is the last

11 full sentence on that page, ECM personnel were asked

12 to identify by name a representative, a customer

13 organizations who was involved in the purchase of

14 materials for the manufacturer of plastic and likely

15 to be most knowledgeable about the manufacturing

16 process much did I read that correctly?

17 A. Pretty much yes.

18 Q. Did I read it material others I may have

19 misspoken materially incorrectly in any way?

20 A. No it's just you inserted about rather than

21 of but no problem.

22 Q. My apologies, who were the ECM personnel you

23 referred to?

24 A. I believe Mr. Sin can.

25 Q. Anyone else?

196

1 A. It was my understanding that either he did

2 it himself or someone in his organization did it but

3 I wouldn't know who those other people were.

4 Q. And are there any communications with

5 Mr. Sin clear that you're aware of related to the

6 identification of customer organizations other than

7 the two communications we've been discussing? One

8 toward the end of last year and one in April of this

9 year?

10 A. Well I did have a conversation with Mr. Sin

11 clear in which the topic of survey of manufacturers

12 came up and it was at that point that I mentioned to

13 him what I'd already talked to the attorneys about

14 and that was it would be helpful to have a more tar

15 getted list of names and could he help me with that

16 and he said yeah if we go down that road that is to

17 do a manufacturer survey, he could he could have

18 that done.

19 Q. And when was that conversation?

20 A. January maybe.

21 Q. Okay.

22 A. I can't recall.

23 Q. Were there any other communications with

24 Mr. Sin clear?

25 A. I think I had two telephone conversations

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1 with Mr. Sin clear.

2 Q. Two in addition to to the one you just

3 mentioned or two including the one?

4 A. Two including the one I just mentioned.

5 Q. What was the other one regarding?

6 A. I -- I said to the attorneys it would be

7 really helpful to me to have a somewhat better

8 understanding of the product and the business and so

9 could somebody do a tutorial for me and arranged a

10 call about a 20 minute call with Mr. Sin clear and

11 he gave me a quick lesson on biodegradability.

12 Q. And why did you think that would be helpful

13 to you?

14 A. Well I -- I often find it useful to have

15 some understanding of the background in business of

16 the clients with whom I work: I just thought it

17 would be of assistance to me in thinking about the

18 issues in the case.

19 Q. To simplify things putting together all of

20 your communications were Mr. Mr. Sin clear were any

21 attorneys present on any of those telephone calls?

22 A. Actually I don't believe there were.

23 Q. Again putting together all of your telephone

24 calls with Mr. Sin clear were there any subjects

25 discussed other than the identification of customer

198

1 organizations and background regarding the business?

2 A. No that as best as I recall that was the

3 substance of the conversations.

4 Q. Have you ever met Mr. Sin clear in person?

5 A. I have not.

6 Q. Regarding who would participate in the

7 manufacturers pilot study, why weren't selections

8 made randomly from ECMs customer list?

9 A. I'm sorry they were. Maybe I'm

10 misunderstanding your question.

11 Q. Well let me take a step back I may be

12 misunderstanding what you're sex plaining to me do

13 you have an idea how many customers ECM has

14 currently?

15 A. I don't. I assume that the list that I got

16 was a reasonably complete list. Certainly of the of

17 their larger customers. But I don't have any any

18 other understanding.

19 Q. Why would smaller customers have been

20 excluded?

21 A. It's not uncommon for's for a firm to

22 maintain a list of major customers significant

23 customers and not necessarily include the one off

24 customer.

25 Q. The exclusion of smaller customers from the

199

1 manufacturers pilot study would have the potential

2 to introduce bias into that study wouldn't it?

3 A. I don't know even know that there was more

4 customers beyond what was on the list. It is very

5 common in designing survey research particularly in

6 the business to business context to bias sample

7 selection on the volume of of business that one does

8 and if you do that then really small customers would

9 be a very small fraction of the of the total volume

10 of the customers. But as I said I don't even know

11 that the list that I had was in in way in complete.

12 Q. Do you know how many customers have

13 purchased product from ECM over the last five years?

14 A. I do not.

15 Q. And you would give me the same answer if I

16 asked you for ten years?

17 A. That's correct.

18 Q. So you don't know with one way or the other

19 whether the two hundred you were provided is the

20 entire list or just a fraction of the list?

21 A. I -- I it was represented to me as the

22 customer list I don't know any more about it than

23 that.

24 Q. If it were not a complete customer list in

25 some regard, that would have the potential to

200

1 introduce bias would it not?

2 A. It, certainly it has the potential, but

3 again, as I said, to the extent that most of the

4 sales volume would be represented on the list that I

5 was given the bias would not be great if if existed

6 at all.

7 Q. Why do you believe if you do that large

8 customers with substantial sales volume would have

9 the same interpretations of ECMs marketing claims as

10 a small customers with lower sales volume?

11 A. No that's not what I says I believe I simply

12 said that in the context of business to business

13 survey research it is customary to go give greater

14 rate to respondents based on their sales volume very

15 common you got a customer who does 50 percent of

16 their business you definitely want to include that

17 customer in your sample because they represent

18 50 percent of your business. You have another

19 customer who has done one purchase in ten years, you

20 know that customer is a trivial portion of the whole

21 business. It's less important that they get

22 represented because they don't represent much sales

23 volume and typically in business to business

24 research we wait the responses of individuals based

25 on the sales volume their organizations represent.

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201

1 Q. ECM not only provided the companies your

2 researchers would speak with or a subset, withdrawn

3 ECM not only provided the much companies your

4 researchers would speak with but the specific people

5 correct?

6 A. That's correct.

7 Q. That has the potential to introduce bias

8 doesn't it?

9 A. It it certainly could what I asked for were

10 the people who would be most knowledgeable about the

11 manufacturering and production process and the

12 purchasing that was related to to that. I would I

13 would hope that that's what I got because I think

14 they are the people who are most relevant to the

15 topic that we were interested in.

16 Q. ECM could have spoken those persons before

17 they were surveyed correct?

18 A. I -- I because they're customers I have to

19 believe at some point there had been some discussion

20 with somebody: I don't know what transpired with

21 those customers. You know after I got the list and

22 before we conduct would the survey.

23 Q. There was nothing in the pilot study

24 designed that would have prevented that was there?

25 A. No.

202

1 Q. You don't know do you that the persons

2 surveyed were actually the persons at the companies

3 involved in the purchase of the materials for the

4 manufacturer of plastic and likely to be most

5 knowledgeable about the manufacturing process do

6 you?

7 A. No I accepted the representation about who

8 they were.

9 Q. Do you consider this pilot study to have

10 been double blind?

11 A. I do.

12 Q. And why is that?

13 A. The interviewers were not aware of who the

14 sponsors were and the calls were all made to the

15 customers by a representative an interviewer from

16 California survey research. There was no

17 identification of ECM as the sponsor.

18 Q. For purposes of this pilot study the persons

19 involved with the purchasing of materials for the

20 manufacturing of plastic is more important isn't it

21 than whether or not he or she is the person most

22 knowledgeable about the manufacturing process

23 correct?

24 A. Well I think you may be parsing too finely

25 because my understanding is manufacturing is very

203

1 much involved in the purchase decision. And in fact

2 in many cases the actual person involved in

3 purchasing say a purchasing agent knows eventuallily

4 nothing about what's being purchased employ their

5 job is to execute the paperwork to maybe it

6 happenment what you really want is the individual

7 that's the technical specifier and that's really

8 what I was interested in and what I talked to

9 Mr. Sin clarabout.

10 Q. Someone might be involved with the

11 purchasing decisions but not be the decision maker

12 right?

13 A. That's very common in business to business

14 marketing yes.

15 Q. Let look at what may be exhibit nine in fact

16 it is Exhibit 9 which is the manufacturers pilot

17 study screen shots. The question one asked survey

18 respondents are you involved in the decisions of

19 your organization regarding the materials used in

20 the manufacturing and I think there's a typo there

21 products or product packaging. Have I read that

22 correctly?

23 A. I didn't uh-huh.

24 Q. If the person answered affirmatively they

25 were then asked question two, are any of those terms

204

1 plastic or components used for manufacturing plastic

2 correct?

3 A. That's correct.

4 Q. And then if the person answered

5 affirmatively again a subset of questions began

6 correct?

7 A. That's correct.

8 Q. None of the screening questions ask whether

9 the person being surveyed is involved with the

10 purchase of materials for the manufacture of plastic

11 correct

12 A. I don't use the term purchase, and I don't

13 know how you're using the term purchase here. But

14 we do ask if they're involved in the decisions of

15 the association regarding materials used in

16 manufacturing products or product packaging. I

17 think purchase would be subsumed within decisions.

18 Q. Why didn't you use the word purchase.

19 A. Because I thought activities subsumed within

20 term decisions.

21 Q. You could have added the word purchase

22 correct?

23 A. Yeah I could have added a lot of words but

24 it didn't seem to be necessary.

25 Q. Your view is that this question is just as

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1 et cetera I have with or without the word purchase?

2 A. In my view it was and in part because I had

3 asked that names be prescreened by people in the ECM

4 organization to identify people who would be

5 knowledgeable.

6 Q. Thus the reason that it's just as effective

7 with and within out word purchase is because the

8 persons being surveyed were prescreened by Mr. Sin

9 clear correct?

10 MR. AWERBUCH: Objection.

11 THE WITNESS: Well I don't know that he's

12 the one who prescreened them. I got a list of

13 people who were represented to me as like lick to be

14 the most knowledgeable about the manufacturing

15 processes and that the materials that we go into it.

16 BY MR. COHEN:

17 Q. Take mr. Sinclaire out of there. Let's

18 Q. The reasons whyment questions are just as

19 effective with and without the word purchase in

20 there is because ECM provided you with the

21 information regarding with whom you should speak, no

22 and I've said this before purchase is subsumed

23 within decisions. The way businesses make decisions

24 there isn't a purchaser in most cases. There's

25 multiple people involved in purchase. There's often

206

1 a technical specifier, there's often a financial

2 decision maker. There may be users. There may be

3 a whole host of individuals who are involved in the

4 decisions, the and to say purchase, actually

5 connotes that the individual might actually be the

6 one who writes the order form and sends the check.

7 They may know nothing about what they're buying.

8 They all be done by somebody who understands the

9 technical needs, the financial needs of the

10 organization. So it's important to talk about this

11 in terms of the decisions whether or not they were

12 the implementer of the purchase or not. I think

13 decision size a much more appropriate term for what

14 we were looking for here than purchase, which has a

15 very specific connotation in a business.

16 Q. Let's talk about the word decision. Why

17 didn't you ask to speak with the person made the

18 decision to purchase the ECM additive?

19 A. Because if I had asked for the person who

20 purchased the ECM additive, I would have conducted

21 that that's for whom the survey was being conducted.

22 Q. And you believe the individuals who were

23 surveyed her didn't know for whom this was being

24 conducted?

25 A. I don't know whether they knew or not. We

207

1 tried very hard to ask questions in a very neutral

2 fashion that did not suggest you know which

3 particular firm we were doing research for.

4 Q. Why didn't you ask to speak to the person at

5 the organization who made the decision to purchase

6 biodegradeable additives?

7 A. That seemed that would have seemed to me to

8 be to be very specific. And again could have

9 suggested I suppose, that it was being done by a

10 particular company or small subset of companies. It

11 seemed to me that this was a much more neutral way

12 of asking the question.

13 Q. Was the manufacturers pilot study study

14 conducted by California research services or CSRS?

15 A. Yes, it was.

16 Q. Was CSRS paid to conduct the pilot study?

17 A. They were.

18 Q. Why is that not disclosed in your report?

19 A. I don't know. I -- I I have that

20 information. It was done it was done fairly quickly

21 and it was just something that I added quite late in

22 the in the crafting of of this report.

23 Q. To clarify the record, the report was done

24 fairly quickly or the pilot study was done fairly

25 quicly?

208

1 A. Well the pilot study was done fairly quickly

2 and much of the report was done before the pilot

3 study was completed, so I had relatively little time

4 to add the results in to the final draft.

5 Q. How much was CSRS paid?

6 A. My recollection is about 2000 dollars the

7 pilot really was construct the in such a way that we

8 agreed they would do 20 hours worth of calling.

9 That would be what constituted the pilot. So as

10 many as interviews as they could conduct in 20 hours

11 was was the scope of their assignment.

12 Q. Let me show you what's been marked as

13 Stewart ten and I'll provide a copy to counsel. The

14 formatting may be slightly different but this is a

15 set of data collected from the pilot study correct?

16 A. That's correct.

17 Q. The file was produced to complaint counsel

18 and labeled I'm going to read this slowly ma'am.

19 Capital P partial, manufacturers capital M, under

20 score data, under score five dash two zero space two

21 XLS. Who gave it that label?

22 A. That was probably the label given by begin

23 to it by California survey research.

24 Q. Was there a file number one?

25 A. There could have been an an incomplete

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1 version of this file. I asked for reports of the

2 results and so I think I may have gotten one that

3 may have had maybe the first four or five responses

4 and they just tacked on the others as we completed

5 interviews.

6 Q. Do you have a copy of the earlier file?

7 A. I may. I don't I don't recall.

8 Q. If that was not produced to us I assume

9 you'll be willing to produce that to us?

10 A. I don't have any problem with that.

11 Q. If we look at your report, page between, the

12 sentence beginning with the very last two words on

13 the page?

14 A. Mm-hmm.

15 Q. Really on page 28 but we'll start on page

16 27. Ten customer representatives participated in a

17 telephone interview carried out by interviewers

18 employed by California research services have I read

19 that correctly?

20 A. You have.

21 Q. Why does what's been marked as Stewart ten

22 contain data for only eight companies?

23 A. I don't know they she carry, there should be

24 ten. Perhaps you got the wrong file but there were

25 ten companies.

210

1 Q. If you have access to those two additional

2 companies I assume you'll provide that to us?

3 A. Be happy to do that.

4 Q. Is there anything else that complaint

5 counsel could do to get that information?

6 A. I I'm certain that I can I can find the

7 other two responses it just looks like an incomplete

8 version of the data file so I'm certain there is a

9 version of this that has the ten customers in it.

10 Q. Am I correct that looking at this data, one

11 where it's you know take a look at the first page,

12 one means that the respondent answered yes and two

13 means that the respondent answered no.

14 A. Thatwould be correct.

15 Q. And if you look back at the screen shots to

16 take a look at the questions, question five asks is

17 biodegradability an important consideration in your

18 selection of the plastic materials and supplies used

19 in production and packaging in your organization.

20 Have I read that correctly?

21 A. You have.

22 Q. The data in Exhibit 10 ask includes only one

23 response to that question correct?

24 A. What we have here includes only one response

25 to that question. Again it looks to me like this is

211

1 simply an incomplete file.

2 Q. And you believe there's a more complete file

3 out there somewhere?

4 A. I do.

5 Q. And it would be possible to obtain that if

6 it hasn't been produced to complaint counsel?

7 A. I'm certain of that.

8 Q. You understand these eight survey

9 respondents to be ECM customers that purchased the

10 ECM additive correct?

11 A. That's correct. Or representatives of the

12 organizations purchased.

13 Q. Let me just back up to something that's

14 probably self evident but with respect to question

15 five A where there's only one response in the event

16 because maybe I've missed it or because you haven't

17 produced it to us yet you would agree with us that

18 neither the court nor complaint counsel can make

19 reasonable assessment of the results of question

20 five A correct?

21 A. I absolutely agree.

22 Q. Again, I think you just answered but I'll

23 ask again. You understand that these eight survey

24 respondents in the manufacturers pilot study that

25 we're aware of are customers who purchased the ECM

212

1 additive correct?

2 A. They are representatives of customer

3 organizations yes.

4 Q. Why would a plastic productions manufacturer

5 purchase the ECM additive if that manufacturer was

6 not interested in making their products

7 biodegradeable?

8 A. I don't know.

9 Q. And you're not offering well let's actually

10 go to question eight. Question eight is does the

11 term biodegrade suggest or imply to you any amount

12 of time by which decomposition will occur did I read

13 that correctly?

14 A. Did you.

15 Q. Now if you'll return before we go further

16 are you offering any opinions regarding the

17 responses you received to question eight?

18 A. Only in the most general form. And that is

19 that even among customer organizations, there is

20 variability in what the responses are, not

21 inconsistent with the variability we saw among the

22 end user customers.

23 Q. Let's look at question six. That question

24 asks how would you define biodegradability correct?

25 A. That's correct.

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1 Q. Let's take a look at the first answer.

2 Using ASTM 6400 and then there's a P, either that or

3 ASTM D5511 P that's all. Did I read that correctly?

4 A. You did.

5 Q. Do you have an understanding as to what ASTM

6 6400 refers to?

7 A. Not in detail. It's apparently a standard

8 but I don't I'm not familiar with the standard.

9 Q. And I understand it isn't your area of

10 expertise --

11 A. Yeah.

12 Q. But I'm going to ask you to assume that it

13 refers to ASTM P6400 which is a test that's

14 sometimes used to assess biodegradability. And I'm

15 going to further ask you to assume that it's a task

16 that's run for less that a year do you understand

17 those assumptions?

18 A. I do.

19 Q. What does ASTM D55 11 refer to?

20 A. Again it's a standard but again I it's

21 beyond my expertise.

22 Q. Again, I'll ask you to assume that ASTM D

23 5511 is a test that is sometimes used to assess

24 biodegradability and further assume that it's a test

25 that's run for considerably less than a year. Do

214

1 you understand those assumptions?

2 A. I do.

3 Q. Given those assumptions it would be fair

4 wouldn't it to consider this persons response to be

5 one that understands biodegradation is something

6 that happens in less than a year?

7 A. If the standards are what you represent yes

8 I would agree.

9 Q. Let's look at the second response the

10 ability to make materials dissolve within a year.

11 Is it fair to consider this person's response to be

12 one that understands biodegradation is something

13 that happens in less than a year?

14 A. I would agree with that.

15 Q. Let's look at the next to last response on

16 the page. Something that would break down according

17 to ASTM 6400 standards. Did I read that correctly?

18 A. You did.

19 Q. I'll again ask you to assume that ASTM D 64

20 hundred is a test that is sometimes use today assess

21 biodegradability and further ask you to assume that

22 it's a test that's run for less than a year. Given

23 those assumptions it would be fair wouldn't it to

24 consider this persons response to be one that

25 understands biodegradation is something that happens

215

1 in less than a year?

2 A. Again if the standards as you represented it

3 I think that's a reasonable interpretation.

4 Q. There's another person who responded I think

5 it's toward the middle, fourth from the bottom, that

6 the product will be completely decomposed within one

7 to three years, have I read that correctly?

8 A. You have.

9 Q. So out of the eight, three could be

10 characterized based on assumptions that I've given

11 you as giving time frames of a year or less and the

12 fourth gave one to three years correct?

13 A. That's fair yes.

14 Q. Why didn't you ask ECMs customers how they

15 understood ECMs claim that it's additive renders

16 plastic 100 percent biodegradeable?

17 A. Because I wasn't attempting to test ECMs

18 claims. I was again as in the consumer survey

19 attempting to test what the understanding of these

20 respondents was of what biodegradability means.

21 Q. You may have just told me this but you are

22 not offering any opinion then regarding how ECMs

23 customers understood ECMs claim that it renders it's

24 claim that it, lame 100 percent piedable?

25 A. That was not the purpose of the survey.

216

1 Q. Why didn't you ask ECMs customers how they

2 understood ECMs claim that it's additive renders

3 plastic biodegradeable within nine months to five

4 years in most land fills?

5 A. Because again I wasn't interesting in

6 testing claims in this survey I was interested in

7 understanding gaining insight into their general

8 understanding of biodegradability as it might relate

9 to plastics.

10 Q. You're not offering any opinion regarding

11 how ECM's customers understood ECM's claim that its

12 additive renders plastics biodegradeable in nine

13 months to five years in most landfills?

14 A. I am not.

15 Q. Why didn't you ask ECM's customers how they

16 understood ECM's claim that its additive renders

17 plastic biodegradeable in some period greater than a

18 year?

19 A. Again this was not intended to test specific

20 claims of ECM. It was intended to gain insight into

21 general understanding of biodegradability

22 specifically within the content of plastic and

23 plastic products.

24 Q. You're not offering any opinion regarding

25 how ECMs customers understood ECM's claim that its

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1 additive renders plastics biodegradeable in some

2 period of time greater than a year are you?

3 A. I am not.

4 Q. The pilot study was never rerun as a full

5 scale study was it?

6 A. It was not.

7 Q. You were aware of what the pilot study

8 responses were before it was decided that the pilot

9 study would not be rerun as a full scale study

10 correct?

11 A. I was.

12 Q. Emord and associates was aware of what the

13 pilot study survey responses were before it was

14 decided that the pilot study would not be rerun as a

15 full scale study; correct?

16 A. Actually I don't believe they were aware of

17 the specific results I had given them a brief

18 description but I don't I don't think I had shared

19 the spreadsheet or the results with them prior to

20 our making a decision to not to run a full survey.

21 Q. You would given them aim description of the

22 results?

23 A. Yes.

24 Q. ECMwas aware of what the pilot Saturday

25 responses were before it was decided that the pilot

218

1 study would not be rerun as a full scale study

2 correct?

3 A. I don't believe that's correct either. I

4 don't believe I shared any of the specific results

5 other than a verbal description which was largely

6 that there's considerable degree of variability much

7 as we found in the consumer survey, and it and

8 that's I believe all that was communicated prior to

9 the decision not to run a larger survey.

10 Q. Was that the same verbal description that

11 you proud to Emord and associations?

12 MR. AWERBUCH: Objection that's

13 attorney-client privilege.

14 THE WITNESS: Well I mean first of all I

15 don't think I would have provided it to ECM

16 directly. It would have all been through Emord.

17

18 Q. But Emord and associates was provided with

19 general description of the survey results just not

20 the specific survey results correct?

21 THE WITNESS: Well.

22 MR. AWERBUCH: Objection.

23 THE WITNESS: They were provided with my

24 verbal description of what I thought the results

25 were revealing which was that there was a lot of

219

1 diversity in the responses and whether they

2 communicated that to ECM, I don't know I just know

3 that there was a decision made not not to proceed

4 with the larger survey and part of that will

5 decision was simply we had run out of time.

6 BY MR. COHEN:

7 Q. You don't remember the entire, the details

8 in full of that communication though do you?

9 MR. AWERBUCH: Objection you don't have to

10 answer that communication to us.

11 THE WITNESS: I can't and I don't remember

12 the details of the communication.

13 BY MR. COHEN:

14 Q. Why was the pilot study not rerun as a full

15 scale study?

16 A. I don't know all of the reasons that may

17 have gone into it. I do know that we were we were

18 getting very close to the deadline for when the

19 report was due and I and I indicated that I did not

20 think we could get a full blown survey done in time

21 to meet the deadline as I understood it. And and

22 that was part of my communication to to the

23 attorneys, that begin what we had learned about the

24 amount of time it took to reach these respondents, I

25 estimated that it would we were going to run out of

220

1 time before we could complete a full blown survey.

2 Q. Well how many respondents would you need to

3 contact before you could complete a full blown

4 survey?

5 A. Well I indicated that I would like to would

6 like to have contacted as many as 25 percent of the

7 people on the list. That would have been about 50

8 plus people.

9 Q. And you'll have to remind me when the dates,

10 when was the pilot study concluded?

11 A. Late May, maybe even early June. I believe.

12 Q. Does the absence of a shared understanding

13 among consumers about a particular fact mean that

14 deception cannot occur?

15 A. I'm sorry.

16 Q. Ever ma'am if you can just read that back

17 please read read?

18 A. Well if deception can occur in individual

19 cases so the question of whether deception can occur

20 is is yes at least in the individual case. I'm

21 struggling a little bit with your question because

22 it has basically a double negative employ the

23 absence of a shared fact and I'm I don't know how to

24 respond to that.

25 Q. It's only necessary that a legally relevant

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1 minority of consumers share an understanding

2 correct?

3 MR. AWERBUCH: Objection.

4 THE WITNESS: That's my understanding yes.

5 BY MR. COHEN:

6 Q. So let's assume there are two hundred 50

7 million American consumers and if you have a better

8 ballpark I'd be happy to adopt your assumption. Is

9 that my assumption all right?

10 A. Sure.

11 Q. Assume that each of those consumers hold a

12 different understanding for a product to biodegrade

13 so there are two hundred 50 million different

14 understandings. Do you understand that assumption?

15 A. I do understand that.

16 Q. Further assume that 20 percent or 50 million

17 of those consumers understand that the time it takes

18 for a product to biodegrade is some quantum of time

19 one year or less. Do you understand that

20 assumption?

21 A. I understand.

22 Q. Can those consumers in that 20 percent be

23 deceived?

24 A. Well it can be but that fact alone doesn't

25 mean they have been deceived.

222

1 Q. What additional fact does are necessary to

2 dish that they have been deceived?

3 A. That the belief was created by actions or

4 Nactions of the manufacturer or the marketer and

5 that the belief was material to some behavior for

6 purchase decision.

7 Q. Imagine that there's stick with the same

8 hypothetical imagine that there's a hundred

9 marketers and they are all in some minor way

10 contributing to the false belief that's at issue

11 here. Is that sufficient for liability of any one

12 of those marketers?

13 A. I would I would need to know's great deal

14 more that be you've indicated I'd need to know what

15 those marketers were doing what they're doing is if

16 what they're doing is actually having an impact on

17 consumers, what other sources of information may be

18 available, you know a major source of information

19 about biodegradability is actually the government,

20 so I'd like to have some understanding of the degree

21 of which their actions may be dominated by

22 government communications or the or the or the media

23 generally, so I you know I I can't answer that

24 question in the abstract.

25 Q. Let's go back to something we discussed

223

1 earlier in the day. Let's assume that one of the

2 marketers is capitalizing on consumers false beliefs

3 with respect to biodegradation times and further

4 more assume that that particular marketer is doing

5 so intentionally. Would that be sufficient for a

6 finding of liability under the FTC act?

7 A. I you'll have to and we discussed this

8 earlier today. You'll have to explain to me what

9 you mean by capitalize.

10 Q. Imagine that the marketer is aware that

11 consumers misunderstand what the word biodegradeable

12 means and the marketer knowingly under takes a

13 campaign that they understand will miss lead

14 consumers. Is that sufficient for FTC act

15 liability?

16 A. Again it could be but it depends on depends

17 on a lot of other, a lot of other facts.

18 Q. So it might not be the case?

19 A. It might not be the case.

20 Q. Does the fact that some proportion of

21 consumers are skeptical of a claim mean that

22 deception can customer?

23 A. Deception could occur, not everybody may be

24 skeptical, but to the extent that people discount

25 ape claim and don't use it for decision making for

224

1 those individuals it would not be material so

2 deception would not occur but it certainly could be

3 the case that there certainly are consumers who are

4 not skeptical.

5 Q. It's the case isn't it that sometimes when

6 consumers are surveyed, consumers who answer I don't

7 know to a question might have a view but just not

8 one that the survey respondent feels sufficiently

9 certain to share?

10 A. I guess. I think we discussed that this

11 morning, that is certainly the case.

12 Q. Researchers might be able to learn that

13 respondent's view by probing or encouraging a

14 respondent to share his or her view correct?

15 A. That's precisely why we used a personal

16 interview on the telephone was that we could

17 encourage those respondents to offer their opinions.

18 Q. And there actually could be a lot of reasons

19 why a consumer doesn't feel sufficiently certain to

20 share his or her view on the first inquiry correct?

21 A. That's correct.

22 Q. We don't need to go through them all but one

23 might be the prospect much embarrassment if they got

24 it wrong?

25 A. That's a possibility.

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1 Q. All right just quickly 'cause you're an

2 expert in this area are there other possibilities

3 that come up frequently?

4 A. Maybe embarrassment. May just be you know

5 an individual has a certain tolerance or lack of

6 tolerance or certainty or uncertainty they just want

7 to be sure before they offer an opinion. There

8 could be there could be some social buttons, desire

9 bilt component that you know they don't want to

10 answer a question because they think it reflects

11 negatively on them or positively on them so there's

12 a number of reasons.

13 Q. One struck me as particularly interesting is

14 that different people have different understanding

15 or beliefs as to how certain they need to be before

16 they feel comfortable answering a question.

17 A. Yes that's correct and I'm going to stop you

18 because I need to take a break.

19 Q. That's okay. Recess.

20 MR. COHEN:

21 BY MR. COHEN:

22 Q. We were discussing the potential prospects

23 for embarrassment in the context of survey research.

24 A. Or reasons why people may be reluctant to

25 give responses and say I don't know.

226

1 Q. Very fair. Is the prospect, but the

2 prospect for embarrassment would be one such reason?

3 A. In in some cases yes that's true.

4 Q. Is the prospect for embarrassment greater

5 than in an in person interview a mall enter

6 September interview or in a telephone interview with

7 a live interviewer?

8 A. It would probably be greater with a live

9 interviewer in a mall.

10 Q. Is the prospect greater for embarrassment in

11 a telephone interview with a live interviewer or in

12 an on line survey?

13 A. In most cases it would be greater but not

14 large in the case of a telephone say.

15 Q. If a number of people have fuse as to the

16 correct answer to a question but not complete

17 confidence one would expect them to be more likely

18 to answer I don't know in a telephone survey in with

19 a live interviewer than an on line survey correct?

20 A. I need you to read that back read read.

21 A. No I wouldn't agree with that.

22 Q. Why not?

23 A. Just as embarrassment could work in the

24 direction of people not wanting to respond because

25 they may be wrong it could also work in the

227

1 direction of people being embarrassed because they

2 can't give an answer. And you know the fact that

3 there is a live person there is actually a motivator

4 for people to respond. So I -- I wouldn't say that

5 they're greater, that one is greater than the other

6 in in that particular context.

7 Q. Assume that some portion of people who

8 answer I don't know when asked about a

9 biodegradation time regardless of the motive method

10 of survey, actually have a view as to the correct

11 answer, do you understand that assumption?

12 A. I think. I mean there's an an assumption

13 here that there is a correct answer.

14 Q. No I'll withdraw the question and I'll

15 repeat it because I don't 19suggest that there is a

16 correct answer. I'm merely meaning to suggest that

17 the person may think there's a correct answer?

18 A. Fair enough.

19 Q. So assume that some portion of people who

20 answer I don't know when asked about biodegradation

21 time actually have a view as to the correct answer,

22 do you understand that assumption?

23 A. I do.

24 Q. Given that assumption do you have any reason

25 to believe that those people as a group are

228

1 demographically different from people who gave

2 responses other than I don't know?

3 A. It is it is conceivable that they may be

4 different in terms of their perceived self efficacy,

5 that is their sense of personal control and personal

6 knowledge of the world and generally we find that

7 people who are stronger in self efficacy tend to be

8 people with more resources, more highly educated,

9 higher incomes. So that in that way there may be a

10 link between demographics and the tendency to say I

11 don't know.

12 Q. I don't may be to be flip but how confident

13 are you in that response?

14 A. I think I'm pretty confident in that

15 response.

16 Q. Given the assumption that I asked you to

17 make, do you have any reason to believe that people

18 who answer I don't know as a group would have a

19 different distribution of views than people who

20 express their views immediately?

21 A. No there's literature on the I don't know

22 response and that literature generally finds that

23 you don't really change the distribution of

24 responses substantially based on kind of forcing

25 people not to have, not to use I don't know. So

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1 we'd have fewer people who make the response.

2 Q. Assume that some portion of people who

3 answer equivocally when asked about biodegradation

4 time actually have a view as to the correct answer.

5 Do you understand that assumption?

6 A. Again they have a view that they know the

7 correct answer.

8 Q. That's correct?

9 A. Okay. Yes.

10 Q. I'm not saying there is a correct answer?

11 A. Okay.

12 Q. I'm saying that they're answering

13 equivocally. They're saying it depends. I'm not

14 entirely sure. Something along those lines. An

15 equivocal answer. Assume that some portion of

16 people who answer equivocally when asked about

17 biodegradation time actually have a view as to the

18 correct answer. Do you understand that assumption?

19 A. When you say answer equivocally what do you

20 mean?

21 Q. Let me withdraw the question. And say let

22 me I'll withdraw the question because I think you're

23 raising a fair objection. Let me ask you something

24 else. What's a protest response?

25 A. A protest response can take one of two

230

1 forms. One is a protest to being involved in a

2 survey, that is so you know I don't like being

3 interrupted in trying to get my contact, my content

4 on Google survey so I respond by saying get out of

5 here. That's a protest. Another protest response

6 would be one that is offered as more as a

7 substantive opinion, you know I you know I want to

8 protest my view that all products should be

9 biodegradeable or you know no products are

10 biodegradeable where people actually have a point of

11 view that they're trying to express.

12 Q. In fairness the first example you will gave

13 was an example involving the Internet and I don't

14 think that's an unfair example but isn't it also a

15 protest response if someone gets a call from a

16 telephone researcher and hangs up the phone?

17 A. Sure I would agree that they don't like

18 being interrupted.

19 Q. Assume that some portion of people who give

20 a protest response when asked about biodegradation

21 time actually have a view as to a correct answer.

22 They just don't want to give it because they don't

23 like being interrupted do you understand that

24 assumption?

25 A. I do.

231

1 Q. Given that assumption do you have any reason

2 to believe that these people as a group are

3 demographically different from people who gave

4 responses?

5 A. They may be different demographically I

6 think it would depend on what the nature of the

7 survey was. Some people are particularly more

8 educated people more high people with higher incomes

9 are less likely to want to respond to surveys

10 because they consider it an imposition on their time

11 but by the same token we find that the other end of

12 the income distribution there's also a reluctant of

13 people to participate so in some ways the the

14 demographics kind of wash out. Center.

15 Q. So the answer to my question is no?

16 A. Well it's a more subtle answer than that

17 there are demographic factors at work but because

18 there are multiple factors at work there's a

19 canceling effect that tends to occur in the

20 aggregate.

21 Q. Understood so I think I understand there may

22 be some demographic differences but there's enough

23 it demographic diss and such demographic differences

24 that they're off setting so there's no net effect?

25 A. That's correct.

232

1 Q. Given the assumption that I've asked you to

2 make do you have any reason to believe that such

3 people providing protest responses as a group would

4 have a different distribution of views than people

5 who express their views immediately?

6 A. I I don't know one way or the other. Again

7 I think it would depend on the issue.

8 Q. And you're not giving an issue about that in

9 this matter are you?

10 A. I'm not.

11 Q. In what respect if any is the population in

12 Professor Frederick survey not properly chosen and

13 defined?

14 A. First of all we don't nope what the

15 population is so without a definition of the

16 population it's very difficult to know whether it

17 has been chosen properly.

18 Q. Is it not properly chosen and defined for

19 any other reasons?

20 A. Well it's just not defined. It's not clear

21 who is in the population so we start with an ill

22 defined population and then we can move to the

23 sampling frame and it's not clear the sampling frame

24 is representative of that undefined population. So

25 it's a you know it's just a problem that builds on

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1 itself I mean if you can't define the population you

2 can't know whether the sample represents that

3 population. If you don't know what the sampling

4 frame is you can't determine whether the sample is

5 representative of the population and you sure can't

6 tell anything if the sampling, if the unknown

7 sampling frame reflects an ill defined population.

8 Q. Assume that Professor Frederick's chosen

9 defined population is American consumers. Was if

10 anything would be problematic with that definition?

11 A. Well, there's nothing wrong with that

12 definition. Of the population. Now the problem

13 becomes one of the sampling frame.

14 Q. Okay we'll move to the sampling frame in a

15 moment. We'll move to the salveling frame now. In

16 what respect if any is the sample chosen in

17 Professor Frederick study not representative of the

18 population of American consumers?

19 A. It is it is selected based on peoples

20 presence at a particular web, at a small number of

21 specific websites that that are not representative

22 of even people who traffic the Internet. That's the

23 primary reason.

24 Q. Are there other reasons?

25 A. They they are not representative because

234

1 they have been enter Septembered. Largely against

2 their will. Which is a typical of of the typical

3 survey research situation. It is they are not

4 representative in the sense that they are they may

5 not be, as I indicated in my report they may not be

6 who they represent themselves to be. We have no way

7 of knowing who these people are. That's what makes

8 them non representative.

9 Q. Are there any other objections related to

10 the representative necessary of Professor Frederick

11 sample or to Google consumer surveys that you have

12 not mentioned in your report?

13 A. I don't believe so.

14 Q. You did mention that one issue with the

15 representative necessary of the Google consumer

16 surveys sample is that people are being in effect

17 surveyed against their role did I under that

18 correctly?

19 A. That's correct.

20 Q. How is that different from someone who gets

21 a telephone call that maybe they don't want to

22 receive?

23 A. It's it's different in the sense that in

24 order for an individual to access content that

25 they're interested in, they have to perform some

235

1 action. So this interferes with a motivated

2 behavior in which they're engaged. The telephone

3 call they may not want to participate they may just

4 want to hang up but it doesn't interrupt their their

5 their goal driven behavior. They're not trying to

6 accomplish something else. Yeah it's interruption

7 but sorry I don't have time you hang up. It doesn't

8 interfere with a more goal driven behavior which is

9 what happens with Google survey.

10 Q. Is there any literature that you're aware of

11 that indicates that the interference with the sort

12 of goal driven behavior that Google consumer surveys

13 capitalizes on result in biased result?

14 A. As I think I indicated earlier Google says

15 has been around for a very short period of time so

16 there's very little literature that speaks to the

17 validity or the biases that may be present beyond

18 what we've talked about earlier.

19 Q. My question was specific to not Google

20 consumer says is an example but is there literature

21 more generally it could be from 50 years ago that

22 talks about the fact that the nature of a survey is

23 such that interferes with some form of minor goal

24 driven behavior means that the results that that say

25 produces are likely to be skewed or inaccurate in

236

1 some way?

2 A. I'm sure there is. I can't identify it as I

3 sit here this afternoon.

4 Q. An assume that the sample Professor

5 Frederick chose is I am perfectly representative but

6 still more representative than the sample you chose

7 in your consumer study. Given that assumption would

8 you contend that Professor Frederick had failed to

9 choose a sample will adequately representative of

10 the population?

11 A. Well first of all I just reject the premise.

12 It is not a sample that is more representative than

13 the one I chose. So I mean you're basically asking

14 me to assume something that's factually incorrect.

15 But if I make the assumption, then then clearly the

16 answer has to be yes. I mean you're asking me you

17 know is black black. Well of course black is black.

18 You know but if I'm looking at a white piece of

19 paper and you say that's black assume that that's

20 black is it black, you know, under that assumption I

21 have to say yes but it's you know it it it's not an

22 accurate representation of the facts.

23 Q. In what respect if any was the data gathered

24 in Professor Frederick studies not accurately

25 reported?

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1 A. He doesn't code, again we've been through

2 this, he doesn't code almost 40 percent of the

3 responses. Including responses that are clearly

4 plausible responses he transforms data in ways that

5 makes it very represent testify very un

6 representative of what the individual actually said.

7 Q. You're not contending that Professor

8 Frederick false identified data are you. No I'm

9 saying he I'm not saying he invented the data made

10 up the data I'm simply saying the way he treated the

11 data was highly unusual highly selective and does

12 not adequately represent what the data actually

13 show?

14 Q. You're not contending that the data received

15 from Google consumer says shows one thing but

16 Professor Frederick reported it as something else

17 are you?

18 A. Yes actually I am.

19 Q. In what respect are you making that

20 contention?

21 A. Well when he when he reports percentages and

22 he doesn't include in denominator responses that he

23 did not code and those responses are 40 percent of

24 the sample, he's basically inflating percentages.

25 And that's that's an inaccurate presentation of the

238

1 data.

2 Q. That strikes me as a dispute with his

3 statistical methodology not an issue of accurate

4 reporting of the data?

5 A. No that's a problem with accurate reporting

6 of the data. Statistics are summary of the data and

7 to the extent he misreports misuses statistics he is

8 not being accurate.

9 Q. What's the basis for your belief if you have

10 one that Google consumer surveys does not accurately

11 report the data it collects?

12 A. I didn't say it does not accurately report

13 the data it collects. What I said is he did not

14 accurately report the data because of the way he

15 treats it.

16 Q. You don't contend then that Google consumer

17 surveys does not accurately report the data it

18 collects?

19 A. I have no way of knowing one way or the

20 other and that that was not my opinion my opinion

21 was the data are not accurately reported by Dr. Fred

22 and I've given you the reason for that. He ignores

23 a very substantial amount of data that includes

24 highly plausible responses. He transforms the data

25 in ways that are inappropriate.

239

1 Q. In what respect other than what you've

2 already told me did Professor Frederick not analyze

3 the data you collected in accordance with accepted

4 statistical principals?

5 A. I've given you the precise.

6 Q. What statistical principle or principles did

7 Professor Frederick violate?

8 A. One he does not base his statistic on all of

9 the available data. Almost 40 percent of the

10 responses are ignored in the computations that he's

11 made. He's also transformed data in ways that are

12 non representative of what the data actually

13 indicate and if you look at what he has done in

14 terms of coding he doesn't even follow his own rules

15 consistently in many cases.

16 Q. Can you quantify in many cases?

17 A. I have not attempted to do a specific count.

18 We have, I have only had the data in an in a

19 reasonably manageable analyzable form since late on

20 Friday I believe so I haven't been able to quantify

21 it.

22 Q. You would agree though that there is some

23 number where in consistent analysis of the data

24 between let's say coders is too insubstantial given

25 the volume to affect the results?

240

1 MR. AWERBUCH: Objection.

2 THE WITNESS: I don't know what results

3 we're talking about. I mean I the data are so

4 poorly organized and so poorly that I I don't know

5 how talk about an insubstantial problem it's like

6 it's like saying I've got a barrel of rotten apples

7 might there be one that's not rotten somewhere in

8 the barrel. Possibly but there's so much that's

9 rotten that you would have difficulty finding it and

10 so they're -- you know there's this little trivial

11 problem that's unsubstantial but all the rest are

12 okay. That's not the case with this data. It's

13 fundamentally flawed data and you can't pick one

14 little problem and say well it didn't happen very

15 much because it's not one little problem. It's

16 multiple problems that make this data completely use

17 less.

18 BY MR. COHEN:

19 Q. Let's mark let me just be clear. You've

20 identified, I believe three statistical principals

21 that Professor Frederick did not follow. Are there

22 others?

23 A. That's those are the ones that occur to me

24 this afternoon. Let's mark Professor Frederick

25 report as Stewart 11 until I lost track.

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1 Q. Which questions if any do you contend are

2 unclear enough to render them invalid and you'll

3 note that in appendix A there's a list of all of the

4 questions?

5 A. Well I'm not sure that I follow your

6 questioning here in the context of was we were just

7 talking about so you need to help me. Are we

8 talking about analysis or are we talking about the

9 questions.

10 Q. I won't help you. We're talking about the

11 questions. The reason that I'm asking is that your

12 report says Professor Frederick questions are

13 unclear. But it doesn't identify any specific

14 questions. So now I would like you to identify the

15 specific questions that are unclear?

16 A. Okay. All the questions are unclear to the

17 extent that they are interpreted as he does to be

18 evidence of fact. These to ask people in contrast

19 to what I did where I was asking people for opinions

20 and and not a statement of fact, what he is doing is

21 asking questions that he is then transcribing into a

22 statement of fact. And I -- I genuinely believe

23 that if people had been asked question one A, if a

24 package is labeled biodegradeable, okay, how long

25 will it take to decompose, and were then given a

242

1 whole variety of qualifiers or caveats you would get

2 very different responses. So for example if you

3 were to say if a package or let's let's be more

4 specific. If a piece of paper or the package of a

5 ream of paper is labeled biodegradeable how long

6 will it take to decompose. If a bicycle is labeled

7 biodegradeable how long will it take to decompose.

8 If a package is labeled biodegradeable and it were

9 put in your backyard how long would it talk to

10 decompose. If it were biodegradeable and it were

11 put into a landfill, how long would it take to

12 decompose? The results of my survey show that quite

13 a number of respondents have a clear understanding

14 that there is no definitive answer to these types of

15 questions absent a variety of qualifiers. And so to

16 the extent that these things are asked without

17 qualification, they're really they're really

18 unclear.

19 Q. If I understand you correctly all of

20 Professor Frederick questions are unclear for the

21 reason you just articulated. Are there any, are

22 they hall unclear or are any specific questions

23 unclear for any other reasons?

24 A. Well again I think when you have a question

25 like federal regulators should not permit a product

243

1 to be labeled biodegradable unless it biodegrades

2 within this time period and then people were asked

3 for a time period you know without without

4 qualifiers I don't know how people can give you a

5 reasonable response to that.

6 Q. And what was the sort, what would be the

7 sort of qualifier that you're looking for there?

8 A. The qualifiers might include the type of

9 material the context in which it biodegrades, very

10 similar to the other questions and when there's

11 simply no context put around this coupled with the

12 fact that federal regulators should not permit I

13 mean what does that what does that mean, which

14 federal regulators, what does it mean should not

15 permit? You know does it mean that if something is

16 actually superior in terms of it's biodegradability

17 that a marketer should be forbidden from from

18 communicating that point of superiority? I mean

19 there's there's there's no effort here to capture

20 competitive advantage or differences among products.

21 It's asked all not guilty abstract as though

22 something is biodegradeable or it's not, when we

23 know that there are degrees of biodegradability,

24 that that are not reflected in the survey.

25 Q. So if I understand you correctly there are

244

1 the problems you just articulated was with two Aand

2 then there's the problem with all of the questions

3 regarding the lack of qualifiers are there any

4 questions that are unclear for various reasons?

5 A. Well again I think you're asking people for

6 very specific information factual information, that

7 that most people are just unlikely to know. So you

8 show people a label and you say if you saw this on a

9 water bottle how long would it take to decompose.

10 Q. Is that a reason for the question being

11 unclear or just a different type of problem with the

12 question?

13 A. Well it's it's unclear again it doesn't

14 include appropriate caveats qualifiers, and couples

15 with that there's no reason to believe that whatever

16 the response that the respondent gives, it has any

17 basis in fact or in information. So as I did in my

18 survey you can ask their opinion but it really is

19 not a statement of of fact.

20 Q. Are there other reasons or specific

21 questions why you, are there other specific

22 questions that you believe are unclear or other

23 reasons why you believe that all of the questions

24 are unclear?

25 A. Most of my my problems are related to what

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1 what I've already articulated and that's simply that

2 there's there's simply inadequate information to

3 provide a basis for an answer in most of these cases

4 even if the individual had an answer that was based

5 on fact and being as the results of my survey

6 clearly indicate many people are aware that there

7 are qualifiers there are caveats if they're provided

8 you know influence their response.

9 Q. Which if any of Professor Frederick

10 questions do you contend are leading?

11 A. I may not have a complete catalog. But I

12 believe two Atwo Btwo C, two D two E, the answer is

13 to the question is really kind of embedded in the in

14 the question. There's an assumption here that you

15 know, people should not be allowed to or marketers

16 should not be allowed to to miss lead. So there's a

17 there's a premise here you know that sets sets these

18 things up as is it misleading, well might not be

19 misleading but you've got a question that sort of

20 starts with you know I consider it misleading if it

21 failed to fully degrade within this amount of time.

22 You know that that is suggesting wrong doing, it's

23 implanting an idea in peoples heads that I think is

24 simply inappropriate.

25 Q. Are there others?

246

1 A. I believe that 15 A, 15 B, are certainly

2 leading. 'Cause of what they suggest to the

3 respondent is they ought to simply do some multiply

4 indication to arrive at an answer. And are there

5 others I see you're at the end.

6 A. I am at the end.

7 Q. So there are no others?

8 A. Not that I can identify.

9 Q. Did the respondents in Professor Frederick

10 strike that in what respect if any was Professor

11 Frederick side not conducted by qualified persons

12 following proper interview procedures?

13 A. It was not double blind. He was using

14 apparently was using students to to do coding. You

15 know these are not trained professional market

16 researchers. And and very clearly as we've

17 discussed, there were problems with with sampling, I

18 mean there there were problems with way that data

19 were coded. I mean these were all at variance with

20 accepted research methods.

21 Q. Qualified persons following proper interview

22 procedures isn't really a metric that applies to

23 Internet surveys is it?

24 A. But it is. I mean you still have you have

25 an automated interview, but to the extent that

247

1 you're using Google survey and it's not really a

2 survey, it's a pay wall, that's not accepted

3 procedures and as I've indicated earlier, Google

4 survey in my view, is not a market professional

5 market research firm so they, you know they're not

6 qualified by any stretch of the imagination. Maybe

7 they will be in ten years but they're not qualified

8 in any stretch of the imagination to be engaged in

9 survey research. And in fact that's not actually

10 their purpose in setting up Google survey any way

11 it's simply an a way to monitor content on the web.

12 Q. Did the respondents in Professor Frederick

13 survey no who response order his survey?

14 A. Not to my knowledge.

15 Q. Did Google consumer surveys no who response

16 order Professor Frederick's surveys?

17 A. Not to my knowledge.

18 Q. Then the surveys double blind that regard

19 isn't it?

20 A. No it's it's not double blind because you

21 had people who were engaged in the coding which is

22 part of the analysis and part of making ready the

23 data who were very much aware of the purpose and

24 sponsor of the research.

25 Q. But the respondents and the data collector

248

1 were not aware of the purpose of the research were

2 they?

3 A. Well I would submit that the person doing

4 the coding is actually a part of the data collector.

5 There's a term that we use called making data and

6 when you're coding is what you're really doing is

7 making data and so that's a part of the of the

8 that's a part of the data collection process and to

9 the extent that your coders are not blind to the

10 sponsor and the purpose of the research, you know it

11 it's not it's not double blind.

12 Q. What evidence did you have do you have if

13 any, that the coders who worked for Professor

14 Frederick made errors?

15 A. I did spot some cases where rules did not

16 appear to be followed appropriately. And and it

17 also appears to me that decisions about how certain

18 things were to coded are not coded were really

19 problematic, as we talked about before when you're

20 not coding almost 40 percent of all the responses,

21 that's that's a problem and a trained coder would

22 have identified that as a problem. And at minimum

23 those data would have been coded but they were not.

24 Q. At the first part of the your answer you

25 said you'd spotted errors, can you identify any in

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1 particular?

2 A. I'm upon going to be able to find them out

3 of 29,000 records. As I sit here this afternoon.

4 But there were cases where non numeric data was in

5 fact given a numeric code, there were cases where

6 numeric data was coded in consistently, and so there

7 there there are there are some errors in the data.

8 Q. Are you offering any opinions in this case

9 regarding the data coded in Professor Frederick's

10 studies relative to the data that was not coded

11 other than the opinions your report contains?

12 A. I think my opinions in my report are are

13 pretty consistent that the I would simply elaborate

14 that any statistics that are computed based on the

15 data that ignores the un coded responses is a

16 misrepresentation of the data. I think I say that

17 in my report I just want to be sure that I'm not

18 record as making that clear.

19 Q. You understand in his initial report

20 Professor Frederick did not code data in which the

21 survey respondent provided a numeric response but

22 not a unit of time correct?

23 A. That's what I understand although I think

24 there are some examples where that was done.

25 Q. You understand that that's the rule that at

250

1 least he was attempting to implement?

2 A. I do understand that yes.

3 Q. What understanding do you have if any,

4 regarding the number of responses that Professor

5 Frederick did not code because the survey responded

6 provided a numeric response but not a unit of time?

7 A. As I sit here today, I don't know a number.

8 Q. You're not offering an opinion are you,

9 regarding whether as groups people who respond to

10 questions asking for estimated biodegradation times

11 and respond with only a number hold different views

12 regarding biodegradation times than those who

13 respond with a number plus a unit of time correct?

14 A. I hadn't thought about it. It would a

15 number alone without a unit of time would be

16 difficult to interpret.

17 Q. So the answer to my question as to whether

18 you're offering an opinion is yes or no?

19 A. Well I think it's a part of the larger

20 opinion related to the problems with the coding of

21 the data.

22 Q. Prior to my question you hadn't considered

23 it?

24 A. I hadn't considered that that specific

25 problem. I mean I certainly identified cases of

251

1 that but I you know the coding is such a mess and so

2 poorly done, I had not tried to identify every

3 possible way it might, it might be wrong.

4 Q. And the specific question that I asked is

5 not something you addressed in your report is it?

6 A. I think that's correct yes.

7 Q. Let's focus on two categories of survey

8 response data that Professor Frederick collected in

9 response to questions asking for biodegrade time.

10 The first category is numbers plus a unit of time

11 like one year where one is the is the number and

12 year is the unit or 30 days, do you follow me so

13 far?

14 A. I do.

15 Q. The second category is only numbers like

16 one, nothing else, or 30, and nothing else do you

17 follow me?

18 A. I do.

19 Q. Assume that the numbers in the first

20 category have approximately the same distribution as

21 the numbers in the second category. Given that

22 assumption, is it reasonable to assume that as a

23 group survey respondents in the first category have

24 similar views regarding biodegradation time as

25 survey respondents in the second category?

252

1 A. No.

2 Q. Why not?

3 A. Because we don't know what unit they're

4 referring to. Somebody says one without any time it

5 could be and we see this in the data, it could be

6 one second, one minute, one day, one week one year,

7 just the number one alone without a unit doesn't

8 doesn't give us any information. And absent that

9 information there's inform way you can draw any

10 conclusions about the you know the comp bilt of the

11 distributions of those responses with a unit of time

12 versus those without a unit of time.

13 Q. Assume hypothetically that in response to a

14 particular question regarding biodegradation time,

15 the number of one year responses and I'm this is an

16 assumption is 10 percent. Further assume that the

17 number of responses that is just one is also

18 10 percent. Is it your contention that no

19 inferences can be drawn from that data?

20 A. No because the one, the one could refer to

21 any unit of time and in fact it may refer to for

22 different respondents it may refer to different

23 units of time. So there's there's nothing you can

24 really do with that data.

25 Q. You're aware that ECM is asserting a

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1 sophisticated customer defense are you not?

2 A. I I don't know what they're asserting but I

3 certainly had that conversation with them about

4 sophisticated customers yes.

5 Q. Do you understand that ECM to be arguing in

6 this case that it could not have deceived it's

7 customers in part because they are sophisticated?

8 A. Again I have not been privy to all of the

9 pleadings and legal arguments in the case but it's

10 my understanding that that is a part of their

11 contention yes.

12 Q. Do you also understand ECM to be arguing in

13 this case that it could not have deceived and used

14 consumers because they're unsophisticated?

15 A. I'm I'm less aware of that that particular

16 argument. I don't know what the I don't know what

17 the nature of that argument would be other than if

18 people are completely unaware of the meaning of

19 something they can't use it. But I -- I don't have

20 any real information to address that.

21 Q. Well let's assume that is in fact the

22 argument. That because people are unsophisticated

23 they're not aware of what biodegradation means and

24 therefore they can't be deceived do you understand

25 that ECM is asserting that position?

254

1 A. I I've certainly had that conversation with

2 them again I don't know exactly what they're

3 asserting, I mean as I said I'm not privy to all of

4 the legal arguments in the case. I mean I I'm aware

5 that there there is that point of view.

6 Q. So there is the point of view that ECM could

7 not have deceived and used customers because they

8 are unsophisticated?

9 A. Yes I don't know what the legal argument is

10 but I do understand the consumer behavior argument

11 yes.

12 Q. Let's back up for a moment. We were talking

13 before about the circumstance where people gave

14 units without a measure of time versus units and a

15 measure of time. Do you recall that conversation

16 just a few minutes ago?

17 A. I do.

18 Q. And you indicated that there was nothing

19 useful that could be accomplished or inferred from

20 the data where people gave only units?

21 A. That's correct well only numbers not units.

22 Q. Only numbers, that's what I mean. Let's say

23 I want you to assume that people 10 percent of

24 people gave as a response 30 days, so it's an it's a

25 number and a measure of time. And approximately

255

1 10 percent of people just said 30. Is it a

2 reasonable inference that the people who just said

3 30 meant 30 days?

4 A. No it's not a reasonable inference. 30

5 could refer to 30 years. You know so there's you

6 know possibly some meant that but some didn't and

7 you don't know so you really can't use the data.

8 Q. If it were the case and we've pointed I've

9 pointed to one and 30 but there's obviously a number

10 of different numbers and combinations that I could

11 point to that the overall distribution of numbers

12 and units provided is similar to the overall

13 distribution of numbers provided. Is it at that

14 point a reasonable inference that the views with

15 respect top biodegradation time are same in both

16 categories?

17 A. No.

18 Q. Why not?

19 A. Because you're mixing apples and oranges.

20 So what that the distributions are the same or

21 similar? That tells you nothing about the what the

22 responses really mean. The distributions could be

23 very similar. But it could be because whatever the

24 number is is a mixture of of you know 30 days, 30

25 weeks, 30 years, and it comes out you know the same

256

1 as people who said who said 30 years let's say. You

2 know the distributions are constructed from

3 completely different responses of the again there's

4 nothing that you can do with data that lacks a unit

5 identifier.

6 Q. Let assume that you're absolutely correct

7 that for one particular number you can't draw any

8 inferences. I'm unclear as to why if the overall

9 distribution of all numbers in both categories is

10 approximately the same you can't draw an inference

11 from that?

12 A. Well now you've lost me. I don't I don't I

13 don't even know now what distribution we're talking

14 about. I don't know what you mean by all numbers.

15 Q. Well there are a number of number that's are

16 given that are associated with units, units of time

17 correct?

18 A. That's correct.

19 Q. I'm making this up it to make it easier one

20 two three four five six seven.

21 A. Mm-hmm.

22 Q. And then there are a number of numbers that

23 are begin without numbers of time one two three four

24 five six seven, in the second category. Okay. Even

25 if it's the case that you can't draw an inference

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1 because the ones in the first category happen to be

2 roughly the same percentage as the number of ones in

3 the second category, why does that mean that you

4 cannot draw an inference from the fact that the

5 overall distribution of all of the numbers is

6 approximately the same?

7 A. Because you don't have, you don't have

8 adequate information to to determine what that

9 actually means. I can do two random draws from a

10 distribution that will very closely match one

11 another just just based on chance alone. That

12 doesn't mean I mean that doesn't mean anything other

13 than you know there's some laws of probability at

14 work. You have, you have no basis for placing any

15 interpretation on those units, on those numbers that

16 are not identified by units.

17 Q. If I understand you correctly and I'm sure

18 you'll correct me if I've got this wrong, is that

19 one possibility, you seem to be excluding the

20 possibility that that the views with respect to

21 biodegradation time in both categories are are the

22 same. Are you excluding that possibility? It is

23 possible isn't it?

24 A. Well negligent is possible. I'm not

25 excluding that.

258

1 Q. You're saying it's not proven?

2 A. It's not proven.

3 Q. And the reason that it's not proven if I

4 understood you correctly, is that it could occur by

5 chance?

6 A. It it certainly could occur by chance yes.

7 Q. And is there another reason other than it

8 occurs by chance, it occurs because the fact the

9 views are the same. Is there a third thing out

10 there a third consideration?

11 A. No. I mean the most, the most logical

12 explanation would be that it's a chance occurrence

13 and you know you really can't draw any inferences

14 from it.

15 Q. Were there any emails writings or other

16 written communications of any sort between you and

17 the survey research firm CSRS, that conducted your

18 studies?

19 A. Not very many. If if there were, there

20 probably was one with some some cost estimates for

21 the the pilots and the surveys, and I -- I would

22 have communicated to them a draft of the

23 questionnaire and in the case of the manufacturers

24 pilot I would have sent him a copy of the customer

25 list and then of course you have reports that I

259

1 have, copies of the reports that I got on the

2 progress of the survey.

3 Q. Before I continue and I apologize, Mr. Hour

4 balk, you had mentioned that you were going to

5 produce the copy of the customer list that was

6 provided to Dr. Stewart correct?

7 MR. AWERBUCH: Actually I'm glad you brought

8 it up counsel. We confirmed that we did provide all

9 lists that we provided to Dr. Stewart in our three

10 three one production.

11 MR. COHEN: Okay I'm not sure that that's

12 the case.

13 MR. AWERBUCH: To the best of our knowledge

14 of course but we did confirm, as Dr. Stewart

15 testified there were two ways, and we have

16 identified both lists that were sent to you. The

17 original and the condensed one.

18 Q. And it's possible from the information you

19 provided to determine which manufacturers were

20 spoken to?

21 MR. AWERBUCH: I don't know that that's

22 possible or not.

23 MR. COHEN: So if additional information is

24 necessary you'll provide that to us.

25 MR. AWERBUCH: We can discuss that.

260

1 THE WITNESS: Well I can tell you that they

2 don't know. I don't know. And that's because I

3 have an obligation to maintain the confidentiality

4 of the respondents and so there's simply no way that

5 I can share information on who was spoken to

6 specifically .

7 BY MR. COHEN:

8 Q. So if I understand correctly Emord and

9 associates may have produced to us a less of

10 companies identified by number but we complaint

11 counsel have no ability to match those up with any

12 names of any companies that's your understanding

13 Dr. Stewart?

14 A. Well, no. I what I'm telling you is that

15 the identities of the are individuals who

16 participated in the pilot are simply not going to be

17 available to you.

18 Q. And to whom are these available? To you?

19 A. I don't even know.

20 Q. They're available to someone under your

21 control?

22 A. Potentially yes.

23 Q. Are they available to Emord and associate

24 does no?

25 Q. So Emord and associates would not have

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1 produced them to us?

2 A. No they would have produced the list what

3 I'm telling you is the identity of the specific

4 respondents in a manufacturers pilot they would not

5 know. I don't know actually.

6 Q. You do understand that giving us a number

7 like a code case I.D. zero zero zero zero one

8 doesn't actually enable us to learn anything about

9 that survey respondent correct. You know exactly

10 what the survey respondent said?

11 Q. But it doesn't enable us to tell who the

12 survey respondent was?

13 A. That's exactly right.

14 Q. So to the extent this is what he board and

15 sorts produce to us we don't know who the survey

16 respondents are correct?

17 A. No and let's be clear what they puced to us

18 are the lists that represented the sampling frame

19 for the manufacturers pilot. I was very careful to

20 assure that no individual was identified by name.

21 Q. So complaint counsel based on information

22 that has been produced to us to date cannot identify

23 the manufacturers or the persons that participated

24 in the manufacturers say correct?

25 A. That is correct.

262

1 Q. Who directly paid California survey research

2 services or CSRV, to conduct the field work

3 associated with the surveys?

4 A. I I don't know whether it was the client or

5 the attorney. I believe the the invoice, my

6 instructions were to send the instruction to e board

7 but I don't know who cut the check.

8 Q. For who are is the contract with the work

9 with CSarrive Swith one party who is the counter

10 party?

11 A. Women the billing would have been sent to he

12 board.

13 Q. The billing was sent to he board but who was

14 the counter party to the contract?

15 A. Well there was no written contract with the

16 survey research company.

17 Q. Is it typical for there not to be a written

18 contract with the survey research common?

19 A. It's very common particularly when I'm

20 working with attorneys.

21 Q. And why when you're working with attorneys

22 is it very common for there not to be a written

23 contract?

24 A. Because attorneys manage their time so

25 poorly that there's not time to get contracts done.

263

1 I -- I often have to do surveys on very very short

2 notice. There's simply not time to go through the

3 nice tis of developing a contract. So there's a

4 great deal that gets done basically on the

5 telephonic handshake.

6 Q. What's your understanding as to why CSRS is

7 willing to undertake a then thousand dollar un

8 taking without a written contract?

9 A. Because I have a relationship with them.

10 Q. If we assume that ECM biofilms paid CSRS,

11 then CSRS knew for whom it was conducting the

12 surveys correct?

13 A. Well the president or the accounting people

14 would ultimately have known. That's true. The

15 people who performed the work would not have known.

16 Q. And you would have given me the same answer

17 if Emord and associates paid CSRS. The president

18 and accounting people might know for whom the work

19 was being done but not the the researchers and

20 supervisors correct?

21 A. That's correct.

22 Q. What if a researcher or supervisor simply

23 typed in the marketing claim from question five B in

24 Exhibit 2 into a search engine he?

25 A. I don't know what would transpire.

264

1 Q. If ECM biofilms would have popped up that

2 would have given the survey researcher an indication

3 as to who was sponsoring the survey correct?

4 A. Sure and if they had run into somebody in

5 an airport and overheard a conversation that might

6 have happened too. It's unlikely but anything is

7 possible.

8 Q. Has CSRS always been known by that name?

9 A. At one time they were simple landfill

10 California survey research ink and I think they have

11 changed their name, I don't know exactly when but to

12 California survey research services Inc.

13 Q. Does CSRS have any corporate affiliates?

14 A. Not to my knowledge.

15 Q. What is the total number of surveys you've

16 conducted through CSRS and any predecessors to SCRS?

17 A. I don't know over 20 years several dozen.

18 Q. What's the total amount paid to CSRS and any

19 predecessors for those surveys?

20 A. I haven't got a clue.

21 Q. Is it more than five hundred thousand

22 dollars?

23 A. Probably is.

24 Q. Is it more than a million?

25 A. I -- I really don't know.

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1 Q. Is that in the range?

2 A. I doubt that it's quite that high, but it it

3 could be over a half a million yes. And I'm going

4 to need to take another break.

5 MR. COHEN: That's fine and I'm sympathetic

6 to that we'll go off the record.

7 (Recess)

8 MR. COHEN: Let's go back on the record.

9 BY MR. COHEN:

10 Q. Do you have any surveys under way with CSRS

11 now?

12 A. I have nothing nothing that's active at the

13 moment. I have some discussions of potential

14 surveys but no, no active projects.

15 Q. Is there any survey research withdrawn is

16 there any research including survey research that

17 you conducted for ECM or in any way related to this

18 litigation that has not been disclosed to the FTC?

19 A. No.

20 Q. You're being paid $750 an hour for your work

21 in this case correct?

22 A. I am.

23 Q. What's the total amount that you've received

24 so far?

25 A. I've received one payment of about 64

266

1 hundred dollars so far.

2 Q. Is there a contract between I'm sorry from

3 whom did you receive that payment?

4 A. I believe from ECM.

5 Q. Is there a contract between you and Emord

6 and associates regarding this case?

7 A. I have a letter of the engagement from he

8 board.

9 Q. And did ECM also sign that letter of the

10 engagement?

11 A. I don't believe so.

12 Q. Have you received any payment for your work

13 in this case from any source other than ECM?

14 A. No, I have not.

15 Q. Other than your travel to and physical

16 presence at today's deposition, have you completed

17 any work in on this matter for which you have not

18 yet been paid?

19 A. Oh, yes.

20 Q. And what is the total amount owed?

21 A. Not counting today?

22 Q. Not counting today.

23 A. Not counting today probably going to be on

24 the order of 30 thousand dollars or so.

25 Q. And it's going to be if we assume ten hours

267

1 or so for today is that a reasonable ballpark

2 estimate?

3 A. Close enough. Yeah.

4 Q. Yeah. So then that would add another 7500?

5 A. Yeah. Mm-hmm.

6 Q. So the outstanding balance as we sit here

7 today again this I understand is an approximation is

8 about $37,500?

9 A. That's probably close yeah.

10 Q. What did you do to prepare for today's

11 deposition?

12 A. I reread my report, I spent some time with

13 Dr. Fredericks report, I had a brief conversation on

14 Friday with counsel. And that's pretty much it.

15 Q. Without explaining the substance of the

16 conversation, who was on the call?

17 A. Eric was on the call and another attorney

18 who was was it John -- I can't I can't remeber.

19 Q. Could it have been Jonathan Emord?

20 A. Could be yeah.

21 Q. How many times have you testified as an

22 expert at trial?

23 A. I haven't made a specific count recently but

24 over 25 years probably two dozen times or so.

25 Q. How many times have you testified as an

268

1 expert in a deposition?

2 A. That's probably probably 70 or 80 times.

3 Q. In how many different cases have you

4 testified as an expert so in I'm looking for total

5 number of cases even if there were multiple

6 depositions and trial testimony.

7 A. I don't know. Probably probably less than a

8 hundred but more than 90. I don't I don't I haven't

9 done a recent count.

10 Q. Between 90 and a hundred is a fair

11 statement?

12 A. Over the last 25 years probably yes.

13 Q. If you go back even further would the number

14 increase?

15 A. No my first first work I did for as an

16 expert witness was actually for the FTC in 1988.

17 Q. I'm familiar with the craft litigation. How

18 many expert reports have you prepared?

19 A. For litigation or or.

20 Q. For litigation in any way connected to

21 litigation?

22 A. I don't know, it would probably be close to

23 the same number of times I've testified. Because

24 I've prepared report where I didn't testify and I

25 have testified where I didn't actually do a form at

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1 report but probably 90 to a hundred.

2 Q. What's the total amount approximately that

3 you've been paid as an expert over the course of

4 your life?

5 A. I wouldn't even know where to begin and I

6 assume you're using expert there to refer to.

7 Q. Litigation expert?

8 A. Litigation expert. I -- I would not, I

9 wouldn't even know.

10 Q. Would it be more than a million dollars?

11 A. It could be.

12 Q. What's the total amount approximately that

13 you've been paid as an expert over the past ten

14 years?

15 A. Again I I have not computation of that.

16 It's probably several hundred thousand dollars.

17 Q. What about over the past five years?

18 A. Again probably probably be it would be

19 probably several hundred thousand dollars.

20 Q. So over the past five years is several

21 hundred thousand dollars and over the past ten years

22 it would necessarily be a greater number?

23 A. It would be a greater number although I did

24 less expert witness work for a while and I now

25 started doing more so there wouldn't be that much in

270

1 the five to ten year period.

2 Q. So going back ten years would four to five

3 hundred thousand dollars be a reasonable

4 approximation?

5 A. Probably a reasonable approximation.

6 Q. Over the past five years what percentage of

7 your professional time has been spent on litigation

8 related activities?

9 A. Probably 20, maybe 20 percent.

10 Q. Over the past five years what percentage of

11 your income has come from litigation related

12 activities?

13 A. Again probably be in the vicinity of 25

14 percent.

15 Q. Let's mark an article called limits of

16 attraction as Stewart 12. Provide a copy to

17 everyone. Fish out my own copy.

18 Dr. Stewart have you seen this article

19 before?

20 A. I have.

21 Q. Have you reviewed this article?

22 A. I did read it briefly yes.

23 Q. Did you read it briefly as part of your

24 activity related to this case or did you read it

25 briefly as part of your academic activities?

271

1 A. I believe I read it as a part of this case.

2 Q. And why was it significant to you?

3 A. It was sent to me by counsel apparently it

4 was produced by Dr. Shane -- Dr. Frederick, and

5 beyond that I'm not I'm not otherwise sure why it

6 was shared with me.

7 Q. Let me direct to you what I believe is

8 page 5 and in the left column very far down last

9 sentence, in middle it states we were curious

10 whether the marginally significant repulsion affect

11 we obtained would replicate so we reran the study

12 using Google surveys which enable us to obtain very

13 large samples quickly did I read that correctly?

14 A. You did.

15 Q. And then if you flip to the next page under

16 three B on the column on the left side I guess it's

17 the second paragraph under the three B results and

18 discussion, it states the adjusted data replicate

19 one aspect of the prior study. We found significant

20 attraction effects when quality was represented

21 numerically -- and then there's some numbers but no

22 effect when the quality was represented visually.

23 We did not find further evidence of a repulsion

24 effect. Did I read that correctly?

25 A. Yes you did.

272

1 Q. Do you understand the authors of this study

2 to be saying that a portion of their prior work not

3 done on Google surveys was replicated on Google

4 surveys?

5 A. I do understand that.

6 Q. Do you have any other opinions about this

7 article?

8 A. I think they had the good judgment to sight

9 my prior work in it.

10 Q. Other than that?

11 A. No that's all.

12 Q. Let's go to and I may have lost track here

13 so I apologize. But was I believe if you call back

14 Exhibit 2 which should be the data excuse me the

15 screen shots from your original survey. And then

16 Exhibit 7 I think which is summary of our responses

17 so I've got exhibit 7. Let me see if I can find

18 those screen shots and let me know when you've

19 caught up. I apologize for all the shoveling of the

20 paper?

21 A. I think I have them both here yes.

22 Q. Okay. Let's I direct you to question five A

23 in Exhibit 2 and I'm not going to read the whole

24 thing but one of the claims that's in the that's

25 articulated or the claim the primary claim that's

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1 articulated to survey respondents is it's in bold I

2 won't scream it but transform any plastic into

3 biodegradeable plastic exclamation point dot dot dot

4 the revolutionary added technology when combined as

5 a one percent load to the most widely used plastic

6 resins renders the finished products, plastic

7 products biodegradeable while maintaining their

8 other desired characteristics. The potential uses

9 of this technology are only limited by the

10 imagination. Did you read that correctly?

11 A. You did.

12 Q. And did you draft that paraphrase of ECMs

13 claims?

14 A. Yes, I did.

15 Q. What's one percent load rate mean?

16 A. I don't really know it's simply a claim that

17 I took from claims that it has been represented to

18 me that ECM has used.

19 Q. How did you expect consumers to understand

20 what one percent load meant?

21 A. I didn't actually. I was interested in how

22 consumers would respond to what is clearly very

23 technical information.

24 Q. The same could be said about widely used

25 plastic resins do you understand consumers have

274

1 general understanding as to what plastic res ins

2 are?

3 A. Yes again I selected three statements and I

4 did so because I thought they represented quite

5 different types of claims. This one was selected

6 because it's a very in my view a very technical

7 claim the others are not so technical, they are

8 fairly straight forward, one one offers a number of

9 different benefits but I selected them principal

10 apply because I thought they were they were quite,

11 quite different of but also represent, quite

12 different but also representative claims that ECM

13 hazardous waste used or at least it's been

14 represented to me that they used.

15 Q. Do you know one way or the other whether any

16 end use consumer has ever seen marketing material on

17 ECM plastic that referred to a one percent load?

18 A. I have no idea one way or the other.

19 Q. Let's assume that the answer is no and there

20 are no such consumers, what would be the purpose of

21 asking question five A?

22 A. Because I wanted to understand the effect

23 that this particular claim would have on the end end

24 user customers. In my conversations with the

25 attorneys that there was discussion that some of

275

1 these claims may have been picked up and transmitted

2 to end user customers and if that were the case I

3 wanted to see how end user customers would respond.

4 Q. If I understood you correct. So attorneys

5 told you that end use customers might have seen

6 claims involving one percent loads?

7 A. Well they didn't tell me that specifically,

8 they simply indicated that some of the claims may

9 have been picked up and passed on through some of

10 their customers to end user customers. So what I

11 was trying to do was to simply pick some some

12 different but representative claims to see how end

13 user customers would respond if in fact they were

14 exposed to these claims.

15 Q. You would agree with me would you not, that

16 it's -- the results of question five A are not

17 particularly illuminating if in fact no end use

18 consumers saw any claim like this?

19 A. It would not be illuminating if no end use

20 consumers saw a claim like this and would not see a

21 claim like this in the future.

22 Q. Let's take a look at question five C.

23 Plastic products made with ECM additives. And then

24 it goes on.

25 A. Mm-hmm.

276

1 Q. Why did you choose this one to -- as one of

2 the three that you presented to the survey

3 respondents in your survey?

4 A. Because I felt like it was making multiple

5 promises to the recipient and the original claim

6 actually had these bulleted and I wanted to I wanted

7 one that was kind of representative of multiple

8 promise points to see how people would respond.

9 Q. Is it your opinion that consumers generally

10 understand what the word aerobically means?

11 A. Actually we we had some respondents who did

12 know what the word meant. Do all consumers? No not

13 at all.

14 Q. Could you characterize the percentage of

15 respondents who knew what the word aerobically

16 meant?

17 A. I haven't attempted to do a count of people

18 who gave a response that suggested that they know

19 the meaning of this. I just recall that there were

20 such responses.

21 Q. Aerobic is a technical term strength it?

22 A. Yes it is.

23 Q. Would it be fair to characterize the number

24 of respondents who appear to upside the word

25 aerobically as relatively small out of the overall

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1 population of four hundred?

2 A. I think that's a fair characterization.

3 Q. Would you say the same thing with respect to

4 the word anaerobically?

5 A. I would I would agree with that as well.

6 Q. Help me understand what the purpose of

7 asking end use consumers who are unlikely to know

8 what the words anaerobeicly or aerobically mean why

9 is that helpful,?

10 A. Becausewhat we wanted to understand what I

11 wanted to understand was you know what people do

12 when they see this claim. They may not know what

13 these things mean people do all sorts of things with

14 terms they don't understand and I wanted to have an

15 understanding if people were exposed to these claims

16 what would they do with them, would it have any

17 material effect on on their understanding on their

18 their degree of skepticism, on their sense of

19 understanding.

20 Q. Would you agree that if no significant

21 number of end use consumers ever saw a claim that

22 used the words anaerobically aerobically that the

23 results with respect to question five C, would not

24 be particularly illuminating?

25 A. No I would not agree with that. I mean

278

1 quite illuminating in terms of what people might

2 interpret this this message to mean. You know they

3 may not understand these specific words but there's

4 still a claim here that is multi-dimensional and it

5 would make sense to to test this. I mean people

6 might very well for example, focus in on nine months

7 to five years when they don't understand the

8 anaerobic or aerobic terms. They might focus in on

9 landfills. So I think it's a perfectly reasonable

10 approach to trying to understand how end user

11 consumers who if exposed to this claim might give it

12 meaning.

13 Q. Why not exchange the phrase anaerobe he

14 cannily or aerobically in landfills to simply say in

15 most landfills?

16 A. I could have done that but that was not the

17 language that I saw in the claims.

18 Q. Do you know whether the language that I'm

19 suggesting is much closer to what end use consumers

20 actually see?

21 A. No, I don't. I don't know.

22 Q. Assuming that it is much closer to the

23 language that end use consumers actually see, there

24 would be a benefit to asking the question that way

25 wouldn't there?

279

1 A. Well depends on what you want to know. If

2 we, if we wanted to know consumers response to a

3 claim that's worded in that way obviously if we had

4 interested if how people respond to this claim which

5 is what I was interested in then we need to use this

6 language.

7 Q. And explain again why were you interested if

8 why consumers how consumers understood either

9 anaerobically or aerobically in land fills?

10 A. Well we we actually had some consumers as

11 I've mentioned who seem to understand what these

12 terms were. So to the extent that there are some

13 consumers, may not be many, at least who had an

14 understanding, that's helpful in understanding the

15 totality of the meaning that these terms provide in

16 the end user population.

17 Q. The first phrase fully biodegradeed nine

18 months to five years that's an express claim

19 correct?

20 MR. AWERBUCH: Objection.

21 THE WITNESS: Yes it is.

22 BY MR. COHEN:

23 Q. Let's take a look at 5 B, plastic products

24 manufactured with our additives will biodegrade in

25 any biologically active environment including most

280

1 landfills in some period greater than a year. And

2 then I direct you to five B in the data set

3 obviously toward the back. I do understand

4 correctly that when presented with five B24 percent

5 of the respondents gave answers that were coded as

6 quote gone slash decomposed slash biodegrade in one

7 year?

8 A. That's correct.

9 Q. Is there any repair the court can rely on

10 that result?

11 A. I think it's a very reliable result based on

12 the well constructed survey.

13 Q. The gone slash decomposed slash biodegrade

14 in one year category is the first one listed on the

15 page that's not a trick question I just want to make

16 sure the next couple questions are clear. That's

17 the first one on the page?

18 A. Yes it is.

19 Q. Okay. Well there's a total sample at the

20 top?

21 Q. Yeah not counting the total sample it's the

22 first subcategory underneath total sample. Physical

23 a respondent answered question five B by stating

24 that the product would biodegrade in six months,

25 that response would have been coded in the first

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1 subcategory here correct?

2 A. No I don't believe so.

3 Q. Why not?

4 A. You know, because I think what we have here

5 are people who said it would biodegrade in one year.

6 Q. In what category would someone who answered

7 five B by stating that the product would biodegrade

8 in six months have been classified?

9 A. I'm not sure that we had such a response.

10 It's hobble that if we had such a response it could

11 be in the other category, the other comments that

12 are on the next page.

13 Q. So if I understand then gone slash decompose

14 slash biodegrade in one year is one year exactly?

15 A. Well they would have said something that

16 mentioned a yearment it could have been a response

17 like gone decomposed in almost one year or little

18 over a year but generally the code would have

19 reflects some comment about one year. In contrast

20 to Dr. Frederick I did not attempt to do an

21 arithmetic transformation what I'm trying to report

22 here are categories of verbal responses that people

23 made.

24 Q. So withdrawn. One year exactly almost a

25 year, a little more than a year would fall within

282

1 the 24 percent there?

2 A. I I believe that's correct employ based on

3 my recollection of the code.

4 Q. If a respondent answered five B, by stating

5 that the product would biodegrade in ten years, that

6 response would have been coded in the second

7 subcategory which reads some products will take

8 longer slash longer to biodegrade slash longer than

9 a year correct?

10 A. No. What this would suggest to me is that

11 no one gave that that response that what people gave

12 are responses that are summarized here, some

13 productions will take longer longer to buy, longer

14 than a year, again I did not do transformations of

15 data like Dr. Frederick did and what these represent

16 are classifications that summarize the verbal

17 responses that individuals had made. If somebody

18 had said ten years, we well a number of people had

19 said ten years it would probably have been a

20 category if and of itself. If only one person says

21 that it probably would have ended up in the other

22 comments.

23 Q. Where I'm having a little bit of difficulty

24 you mentioned and I have no reason to disagree with

25 you if someone said almost a year a year a little

283

1 more than a year they would fall within that first

2 24 percent. How much further way from a year did

3 they need to be to fall into the second subcategory

4 which includes a longer than a year?

5 A. No you're misunderstanding the nature of

6 this coding process. The coding process used the

7 verbal responses that people gave us. In stark

8 contrast to what Dr. Frederick did, we did not

9 attempt to interpret and transform responses into

10 into numeric values that the individual did not give

11 so if somebody said some products will take longer

12 they would fall in the category we're talking about.

13 If they said longer than a year, they would fall

14 into that category. You know I don't have a

15 recollection of what all 55 of the responses were

16 but I -- I doubt that there are very many very

17 specific numeric responses that are in here. Could

18 be wrong.

19 Q. I'm not suggesting that you're wrong. The

20 so longer than a year means in effect people who

21 stated longer than a year without providing further

22 detail?

23 A. That's correct.

24 Q. So if the coders felt comfortable that the

25 respondent was close enough to a year so they said's

284

1 little more than a year, that would be someone who

2 would fall within the 24 percent whereas if they

3 simply stated longer than a year they would fall

4 within the 14 percent?

5 A. Yes I believe that is correct.

6 Q. Let's go back to your report. Page 9 the

7 first paragraph next to the last sentence. Denial

8 of factual information to consumers that is contrary

9 toer ownius briefs does not serve consumer welfare.

10 Did I read that correctly?

11 A. Yes you did.

12 Q. In what respect if any would adoption of

13 complaint counsel's position in this case mean

14 denying factual information to consumers that is

15 contrary to erroneous beliefs?

16 MR. AWERBUCH: Objection.

17 THE WITNESS: To the extent that there is a

18 benefit to a consumer associated with a product that

19 differentiates that product from others in the

20 marketplace that product will only exist in the

21 marketplace if the marketer or manufacturer can in

22 fact communicate to consumers about that product.

23 You if people, if companies cannot communicate

24 advantage says or benefits of a product to the

25 marketplace, they have no incentive to innovate, no

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1 incentive to develop new and innovative products

2 that could genuinely offer real benefits to

3 consumers. There's very nice piece that was

4 published if the paper that was published if the

5 journal of public policy and marketing that looked

6 at this issue in the context of nutritional

7 information. If I add one of the authors is a staff

8 economist at the FTC but it important that companies

9 have able to community advantages that they have

10 relate to. Other companies in the marketplace it

11 we're going to allow invasion to occur if we're

12 going to encourage invasion and you know that

13 invasion in turn can contribute to consumer welfare.

14 BY MR. COHEN:

15 Q. What is the factual information that you

16 believe the FTC is proposing to deny to consumers?

17 A. Well if in fact there is a real benefit

18 associated with biofilm and I'm not I'm not ape

19 scientist so I can't evaluate that benefit but if

20 there really is a benefit that causes plastic to to

21 biodegrade to break down faster relative to other

22 alternatives, that's a real benefit. And that's

23 something consumers I think would like to know. And

24 I -- I and to the extent that the firm that offers

25 that product is unable to communicate that, it has

286

1 no incentive to bring that beneficial product to the

2 marketplace.

3 Q. I understand you're not an expert, you're

4 not a polymer scientist you're not a microbiologist

5 you're not a chemist and you have made -- you've

6 been candid in not attempting to you know put forth

7 those opinions. You would agree though if it's the

8 case or I'll say assume it's the case that ECM

9 additive does nothing at all. You're understanding

10 that's the FTCs position. It may not be right

11 automatic saying but that's the FTCs position. In

12 that case would denial of information regarding the

13 ECM additives alleged efficacy serve consumer

14 welfare?

15 A. If in fact the claim of the benefit is not

16 is not factual, and really does do nothing, then

17 clearly there's no service of consumer welfare

18 associated with communicated that information to

19 consumers.

20 Q. So put differently, the policy prescription

21 is that if the product is efficacious, then consumer

22 welfare is served by allowing consumer to learn

23 about the product; however if the product the

24 products the claims made regarding the product are

25 false then consumer welfare is not served?

287

1 MR. AWERBUCH: Objection.

2 THE WITNESS: I would I would generally

3 agree with that with that statement yes if something

4 is false consumer welfare is not served by by

5 communicating that false information to the

6 consumer. It's only in in the case where there is

7 an identifiable benefit an identifiable point of

8 sport that can be communicated that consumer welfare

9 would be served.

10 BY MR. COHEN:

11 Q. So a tremendous amount much your views with

12 respect to what is and is not good policy depends on

13 the court and the commission and ultimately other

14 reviewing authorities views as to whether or not the

15 products claims are are substantiated correct?

16 A. Well I would hope that they would not be

17 based on the courts and the commissions views. I

18 would hope that they would be based on good science.

19 Which would be endorsed by the courts and the

20 commission.

21 Q. That's a fair way to put it?

22 A. Yeah.

23 Q. So your view with respect to policy really

24 turns on the science?

25 A. Yes.

288

1 Q. Do you plan to do any additional work on

2 this case before you testify it willy I withdraw do

3 you intend to testify in this case?

4 A. I do intend to testify on that case and and

5 I -- I know of no additional work that I -- I will

6 do between now and the time I testify.

7 Q. Do you intend to testify about anything

8 other than what your report contains?

9 A. As I sit here now no, I do not.

10 Q. Do you intend to offer any opinions other

11 than those your report contains?

12 A. There certainly will be no new opinions

13 there may be elaboration on some of the opinions

14 based on things that I've learned for example

15 reading Dr. Fredericks deposition testimony but I

16 think I've largely captured my general opinions

17 about that in the report on so to the extent that

18 there are some degree of new opinions that are

19 offered they would be based on Dr. Fredericks

20 deposition testimony.

21 A. Well that would, that and I mean I don't

22 know what else I may be I may be asked to testify

23 about I mean to the extent that you know there there

24 is additional information from Dr. Fredericks for

25 example, I might need to address that.

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1 Q. Are your opinions in your report based on

2 anything other than your professional expertise and

3 the materials produced to complaint counsel?

4 A. No. I believe that they're largely based on

5 my professional expertise and the imper cal survey

6 research that I've done.

7 Q. Are there any fact says not disclosed to

8 complaint counsel at this time that are necessary to

9 understand the opinions that your report contains?

10 A. I don't believe so.

11 Q. Let's go off the record. It's five 13.

12 (Recess)

13 MR. COHEN: Let's go back on the record and

14 I think we're on 13. I'm going to mark this will

15 document as Stewart 13 and provide copies to

16 everyone.

17 Just briefly Dr. Stewart what is this

18 document.

19 A. This would be a report on the progress of

20 the of manufacturers pilot that we did.

21 BY MR. COHEN:

22 Q. And this report is dated May 20th correct?

23 A. That's correct.

24 Q. And that's a month before your expert report

25 is due in this case?

290

1 A. That's correct.

2 Q. And what are the terms on the left side

3 resolved sample and available salve mean?

4 A. We resolved sample simply means that the

5 sample, that portion of the sample has been used

6 either either an interview has been completed the

7 individual was for some reason not qualified, the

8 individual refused to participate but that would be

9 that would be no further call made to individuals in

10 resolved sample employ. Available sample would be

11 the numbers of people who were still available and

12 kind of active for calling purposes.

13 Q. Why is the number two hundred or

14 approximately two hundred not anywhere on here?

15 A. Two hundred was my my recollection of the

16 number of companies. I -- I can't tell you I mean

17 this is this is the number of companies that

18 apparently were on the list.

19 Q. The number of companies apparently on the

20 list according to this appears to be 85?

21 A. No no no it would have been the combination

22 of the 73 which is resolved.

23 Q. I understand so it would be a hundred 58?

24 A. That's correct.

25 Q. Okay. And so not counting whatever small

291

1 number had been already contacted there would be in

2 the ballpark of a hundred 50 left to go?

3 A. Something like that yes.

4 Q. And explain again why it was not possible to

5 complete a survey of a hundred 50 companies begin

6 the 30 days remaining before your expert report was

7 due?

8 A. Because as I considered the difficulty of

9 getting these people on the telephone, it it just

10 became clear to me that collecting a larger sample

11 in the time available was I mean we could have

12 certainly completed more interviews but we could not

13 have completed the full set of interviews that I

14 would like in the in the time that was available.

15 Q. Why was it necessary to get all the way to a

16 hundred 58 if order to have completed the

17 manufacturers pilot study?

18 A. Well I'm sorry. I mean this was the pilot

19 study. The the full study as I indicated earlier, I

20 would have preferred having at least a 25 percent

21 response rate. It didn't have to be everybody. But

22 I -- I wanted a larger portion of the available

23 sample in the main survey and these are people who

24 don't make a living sitting in their offices so

25 they're very difficult to track down. You know all

292

1 of the we spent 20 hours resolving the 73 here. And

2 I just made the the judgment that you know I didn't

3 think we were going to be able to complete

4 sufficient numbers in the time available. He

5 communicated that to the attorneys and we just

6 concluded that we wouldn't do any further research.

7 Q. What is the sufficient number?

8 A. Well I would like to have had about 25

9 percent but maybe 50.

10 Q. 25 percent of the two hundred?

11 A. Yes.

12 Q. In order for it to be a successful pilot.

13 No not a pilot. In order for it to have been a

14 successful main survey. The?

15 Q. Awe. The pilot was a small?

16 Q. I withdraw the question I understand. 25

17 percent of the two hundred would be what was

18 necessary for you to complete basically transform

19 the pilot into a full scale survey?

20 A. That was my my sense yes.

21 Q. And you did not believe that it would have

22 been possible to obtain 50 response does in the

23 remaining 30 days?

24 A. I based on what we learned in the pilot I

25 did not think it was going to be possible to

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1 complete that complete the analysis, and and

2 incorporate the full results into my report. That's

3 correct.

4 Q. How long was the pilot study going on? When

5 did the pilot study commence?

6 A. I don't have a recollection of exactly when

7 we started. I think it was in late April early may.

8 Q. So at this point it had been going on

9 somewhere between three weeks to maybe longer than

10 that?

11 A. That's my recollection.

12 Q. And did you evaluate what options might be

13 available to accelerate the response rate?

14 A. Well, I did, I had a conversation with folks

15 at California survey research about what we might do

16 to accelerate but again one reason you do pilots is

17 you learn something about the people that you're

18 trying to survey, and these just turned out to be

19 people who were who are difficult to catch in the

20 office.

21 Q. You never talked with Mr. Sin clear about

22 how you might be a better able to catch those people

23 in the office did you?

24 A. I did not.

25 MR. COHEN: I pass the witness.

294

1 MR. AWERBUCH: Yeah we have no further

2 questions just like to invoke Dr. Stewart's right to

3 read and sign.

4 MR. COHEN: We'll go off the record.

5 (The deposition was concluded at 5:26 p.m.)

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295

1 --o0o--

2 Please be advised I have read the foregoing

3 deposition, and I state there are:

4 (Check one)

5 NO CORRECTIONS

6 CORRECTIONS ATTACHED

7

8

9 DAVID STEWART, Ph.D.

10

11 Date Signed

12

13

14 --o0o--

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296

1

2

3 STATE OF CALIFORNIA )

 ) ss.

4 COUNTY OF LOS ANGELES )

5

6 I, DAVID STEWART, Ph.D., having appeared for

7 my deposition on July 1, 2014, do this date declare

8 under penalty of perjury that I have read the

9 foregoing deposition, I have made any corrections,

10 additions or deletions that I was desirous of making

11 in order to render the within transcript true and

12 correct.

13 IN WITNESS WHEREOF, I have hereunto

14 subscribed my name this day of ,

15 2014.

16

17

18

19

20

21 W I T N E S S

22

23

24

25

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1 REPORTER'S CERTIFICATE

2

3 I, the undersigned, a Certified Shorthand

4 Reporter of the State of California, do hereby

5 certify;

6 That the foregoing proceedings were taken

7 before me at the time and place herein set forth;

8 that any witnesses in the foregoing proceedings,

9 prior to testifying, were placed under oath; that a

10 verbatim record of the proceedings was made by me

11 using machine shorthand, which was thereafter

12 transcribed under my direction; further, that the

13 foregoing is an accurate transcription thereof.

14 I further certify that I am neither

15 financially interested in the action, nor a relative

16 or employee of any attorney of any of the parties.

17 IN WITNESS WHEREOF, I have this date

18 subscribed my name.

19

20 Dated:

21

22

23

24 CHRISTINA KIM-CAMPOS

25 CERTIFICATE NO. 12598

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[298]

A

Aan 14:22

Aand 244:1

ability 77:13 91:19

149:10,15,18,19

149:19,23 152:4

156:9 214:10

260:11

able 9:25 28:13,17

81:24 117:11,12

148:5,6,12 176:2

178:8 224:12

239:20 249:2

285:9 292:3

293:22

above-entitled 1:18

absence 220:12,23

absent 12:25 53:23

58:1 242:15 252:8

absolute 160:20

absolutely 30:9

106:3 111:13

112:3 149:18

181:1 211:21

256:6

abstract 222:24

243:21

absurd 15:19 16:18

20:21 21:11 22:13

23:8,18,25 24:2,8

24:15,20 25:11,13

25:18 26:21 27:1,2

27:4,6,18,19 28:12

28:16 30:5,19,21

31:12 32:12,19

33:3 34:8 35:3

37:3,4,9,12 38:12

38:14,15 39:19,23

40:11,15 41:23,25

42:22 43:10 44:25

45:3

academic 59:25

136:23 270:25

academy 157:14,21

157:23

accelerate 293:13

293:16

accept 43:4 73:13,17

147:12 159:12

accepted 160:17

202:7 239:3

246:20 247:2

access 80:8,9,19

175:17 176:2,4,7

176:22 177:6

178:5,8 210:1

234:24

accessible 177:7

accessing 176:1

177:14

accompanied

139:24

accomplish 235:6

accomplished

254:19

account 174:23

accounting 263:13

263:18

accuracy 159:23

accurate 64:3,4 84:6

149:4 161:19

175:12 236:22

238:3,5,8 297:13

accurately 26:22

236:24 238:10,12

238:14,17,21

achieved 90:2,6

act 11:21,25 12:2

59:7 98:11 135:3

223:6,14

acting 64:15

action 8:13 11:7

13:14 65:2 133:25

134:22 135:4,23

137:24 235:1

297:15

actions 7:19 61:22

222:3,21

active 265:12,14

279:25 290:12

activities 204:19

270:8,12,25

activity 127:10

270:24

actual 7:7 44:11

76:21 110:4,25

111:16,21,24

112:10,16 129:22

203:2

add 132:25 154:10

181:8 208:4 267:4

285:7

added 204:21,23

207:21 273:4

adding 132:18

addition 35:10

162:5 197:2

additional 9:19,24

22:1 81:21 82:3

132:19 158:13

210:1 222:1

259:23 288:1,5,24

additions 296:10

additive 49:16 51:16

206:18,20 211:10

212:1,5 215:15

216:2,12,16 217:1

286:9

additives 207:6

275:23 279:24

286:13

address 108:3

253:20 288:25

addressed 82:8

145:11 251:5

addresses 148:4

addressing 145:10

adequate 105:18

139:4,5,6,11 140:2

140:18 143:6

257:8

adequately 236:9

237:12

adjusted 271:18

administrative

188:4

admit 41:12

admittedly 172:13

adopt 12:8 221:8

adopted 145:3

Adopting 44:4

adoption 284:12

ads 128:2 140:12

advance 28:17

86:18

advantage 58:18

243:20 284:24

advantages 285:9

adverse 184:12

advertisement

128:19

advertiser 125:3,15

126:7 128:1,21

129:3,5,12,18,25

130:4

advertising 97:4,7

134:5 136:6

157:23

advice 155:9

advised 295:2

advisory 155:7,8

aerobic 276:21

278:8

aerobically 276:10

276:15,25 277:8

277:22 278:14

279:9

affect 72:1 108:8,15

108:22 109:11,19

110:2 239:25

271:10

affiliates 264:13

affirmatively 47:21

203:24 204:5

African-American

100:16

African-Americans

99:16 100:23

101:4

afternoon 4:4

100:19 175:6

236:3 240:24

249:3

age 78:16,17 81:9

85:9 90:4,25 91:19

91:21 99:25 101:6

101:12 102:22

103:2,11,15

105:19 106:11

108:25 109:2,5,7

110:1 111:21,24

112:11,17 115:8

152:7 153:23

aged 104:16 105:6

105:23 106:15

107:2,9 108:5

111:1,16,22

113:19 114:24

ageded 110:5

agent 203:3

agented 114:11

ages 107:20

aggregate 117:18,19

231:20

ago 160:3 235:21

254:16

agree 11:13,17

17:23 18:1 31:11

39:14 68:6 73:16

77:6 98:8 100:11

110:4,24 111:15

111:20 112:9

123:24 124:16

126:4 130:5,14

168:10 180:8,10

211:17,21 214:8

214:14 226:21

230:17 239:22

275:15 277:5,20

277:25 286:7

287:3

agreed 186:2 208:8

agreeing 28:1,10

agreement 164:24

194:18,23

ahead 6:3 22:1

61:18

ail 73:4

aim 217:21

air 51:16

airport 264:5

alleged 53:17

286:13

allegedly 87:12

164:12

PUBLIC DOCUMENT

CX-A:1
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ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[299]

allow 149:25 285:11

allowed 245:15,16

allowing 286:22

alternative 71:9

148:20

alternatives 285:22

amalgam 126:1

ambiguous 12:25

ambiguously 73:13

amended 193:17

American 81:17,19

91:18 105:24

106:6,25 107:1

110:5,25 111:3,16

111:22,25 112:10

113:19 114:24

115:8 117:7 118:5

121:7 127:21

147:9 157:22,23

160:16 221:7

233:9,18

Americans 79:18,21

80:2,3,12,13,21,23

100:19 108:5,7,18

108:21 109:7

110:7,18 111:5,18

112:13 114:10

amount 44:2 70:2

70:16,25 127:6,10

172:18 212:11

219:24 238:23

245:21 264:18

265:23 266:20

269:2,12 287:11

anaerobe 278:13

anaerobeicly 277:8

anaerobic 278:8

anaerobically 277:4

277:22 279:9

analogize 8:11

analogous 8:1,4

analysis 45:13,20

92:3,7,20 95:7

98:21 99:7 102:9

107:19 109:4,6

113:25 114:8,9,17

115:12 118:25

119:4 143:9,23

144:7 161:7

239:23 241:8

247:22 293:1

analytic 145:4

analyzable 239:19

analyze 239:2

Angeles 1:15 2:15

3:8 5:1 132:1

296:4

annoyance 170:2

175:20

annoyed 175:13

177:11,20,25

annoys 170:5

answer 4:15 9:18,22

9:25 16:4 30:23

58:24 59:24 60:2

62:11 63:19,22

67:10,12 70:11,22

73:21,25 74:1,4

78:1 80:15,16 81:2

83:2,22,25,25

86:17,18,20 87:1

88:2 98:11 101:3

101:12 106:18

107:8 112:8 140:5

142:5 148:9

159:15 168:25

172:4,6 176:11

177:24 178:7

179:23 190:12

194:2 199:15

213:1 219:10

222:23 224:6

225:10 226:16,18

227:2,8,11,13,16

227:17,20,21

228:18 229:3,4,7

229:10,15,16,18

229:19 230:21

231:15,16 236:16

242:14 245:3,4,12

246:4 248:24

250:17 263:16

274:19

answered 47:21

77:24 83:12,20

84:24 89:8 146:16

203:24 204:4

210:12,13 211:22

280:23 281:6

282:4

answering 89:13

140:13 225:16

229:12

answers 69:18 71:20

72:1 76:6,12

146:18 170:4

180:13 280:5

anticipate 67:19

anybody 168:9

anytime 105:5

APCO 121:15

123:15 186:4

ape 139:13 223:25

285:18

apologies 195:22

apologize 19:11

22:4 47:10 50:2

57:16 68:11 74:14

74:15 104:3 107:7

146:24 194:1

259:3 272:13,19

apparently 29:24

213:7 246:14

271:3 290:18,19

appeal 151:12

appealing 151:18

appear 118:1

248:16 276:24

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296:6

appears 8:13 33:21

47:19 165:14

166:15,18 248:17

290:20

append 7:11

appendises 7:11

appendix 241:3

apples 240:6 255:19

applied 48:25

applies 246:22

apply 13:11,13

274:10

applying 122:10

approach 45:20

46:21 69:24 100:8

121:12 137:22

143:22 144:3,6

145:12 186:3

278:10

appropriate 16:4

25:1 40:3 43:1

45:14,23 46:1,4,21

69:22 129:12

206:13 244:14

appropriately 93:21

248:16

approve 32:1

approximate 75:16

approximately

99:16,18,20 192:5

192:8 251:20

254:25 256:10

257:6 269:2,12

290:14

approximation

267:7 270:4,5

April 190:21,25

192:18 193:20

194:5,8,9,9,12

196:8 293:7

arbitrary 8:23

area 92:15 136:6

156:23 213:9

225:2

areas 156:25

arement 96:12

arer 24:17

arguably 48:1

arguing 253:5,12

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253:22 254:9,10

arguments 253:9

254:4

arises 68:1

arithmetic 46:23

281:21

Arizona 3:12

arranged 197:9

arrive 88:22 246:4

article 270:15,18,21

272:7

articles 158:25

159:2

articulated 242:21

244:1 245:1

272:25 273:1

articulating 112:7

articulation 101:14

ascertain 41:24 69:8

ascertained 75:7,10

aside 101:4 124:1,2

145:7 179:16

180:18

asked 14:9 20:8,10

36:1 37:17 38:25

39:3,4,8,9,10,14

39:15,17 45:25

47:21 51:11 55:24

67:23,25 68:15

69:13 71:12 73:22

74:5 75:23 76:5

77:24 84:4 88:4

89:4 90:16 99:2,12

107:25 108:3

110:18,22 114:6

116:16,24 121:8,9

121:16 123:12

138:20,23 139:10

139:12 141:23

142:3 143:4,8

178:4 185:21,21

185:23 188:20

191:19 195:11

199:16 201:9

203:17,25 205:3

206:19 209:1

227:8,20 228:16

229:3,16 230:20

232:1 241:23

242:16 243:2,21

251:4 288:22

asking 9:6 11:5

17:20 29:16 38:19

59:9 69:9 71:4

73:19 83:3 96:14

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[300]

100:7 101:10

107:7 119:25

121:1 123:7 129:1

171:16 183:14

191:6 207:12

236:13,16 241:11

241:19,21 244:5

250:10 251:9

274:21 277:7

278:24

asks 47:13 70:8

117:16 124:13

210:16 212:24

aspect 12:16,17

271:19

asserting 252:25

253:2,25 254:3

assertion 96:20

assess 137:17

213:14,23 214:20

assessed 130:2

assessing 141:19

167:1

assessment 161:20

211:19

assessments 66:22

asset 170:5

assignment 6:20

123:12,17,20,22

124:2,4 184:15,19

184:25 185:1,17

190:17 208:11

assistance 197:17

assisted 93:8

associate 260:23

associated 60:7 88:2

120:20,23 154:23

256:16 262:3

284:18 285:18

286:18

associates 3:10

188:12,13,16

189:18,25 192:6

217:12 218:18

260:9,25 263:17

266:6

association 85:3

157:22,23 160:16

204:15

associations 218:11

assume 9:4,9 10:6

27:24 35:13 37:7

37:17 53:11 55:24

62:14 73:9,19,22

74:5 77:22 81:17

81:18 83:1,3 91:1

108:18,20 118:12

128:1,18,21 129:1

142:7 148:20

152:3 177:2,4

181:19 198:15

209:8 210:2

213:12,15,22,24

214:19,21 221:6

221:11,16 223:1,4

227:7,19 229:2,15

230:19 233:8

236:4,14,19

251:19,22 252:13

252:16 253:21

254:23 256:6

263:10 266:25

269:6 274:19

286:8

assuming 79:24

152:25 159:2

278:22

assumption 9:6,12

37:22 38:9 56:2

73:12,14,17,25

78:1,2 94:4,5,14

95:6 183:17 221:8

221:9,14,20

227:11,12,22,24

228:16 229:5,18

230:24 231:1

232:1 236:7,15,20

245:14 251:22

252:16

assumptions 10:9

43:16 94:11 153:1

153:4,5 177:8

213:17 214:1,3,23

215:10

assure 64:1 102:22

103:1,4,5 261:20

ASTM 213:2,3,5,13

213:19,22 214:17

214:19

Ato 76:5

ATTACHED 295:6

attempt 30:16 38:23

76:24 150:20

281:20 283:9

attempted 239:17

276:17

attempting 137:7,10

141:12 142:14

215:17,19 250:1

286:6

attentive 76:10

attorney 51:2 262:5

267:17 297:16

attorneys 50:25

52:12,19 123:20

185:15 186:2,8,9

186:11,14 188:21

189:2 196:13

197:6,21 219:23

262:20,21,24

274:25 275:4

292:5

attorney-client

218:13

attraction 270:16

271:20

attributable 133:25

134:15 135:4,22

Atwo 245:12

August 194:17

author 160:18

164:18,22,25

165:1,6,13,15,17

165:19,21

authorities 287:14

authors 173:10

272:1 285:7

automated 246:25

automatic 286:11

available 117:2,3

118:3 119:3 128:7

135:10,12 148:17

162:5 163:23

166:1,3,6 222:18

239:9 260:17,18

260:20,23 290:3

290:10,11 291:11

291:14,22 292:4

293:13

Avenue 3:3

average 75:1 178:15

178:20 179:1

avoids 44:5

aware 11:9,12 61:11

63:25 117:4 138:3

140:12 144:22

151:7 161:3

169:18 173:7

174:9,12 175:1

196:5 202:13

211:25 217:7,12

217:16,24 223:10

235:10 245:6

247:23 248:1

252:25 253:15,23

254:4

awe 152:13 292:15

AWERBUCH 3:10

8:3 9:17 11:16

12:9 13:8,20 17:25

18:9 24:21 25:14

26:12 27:7 28:3

29:5 30:23 31:15

32:23 34:4,10,20

35:7,15 36:4,9

37:11 38:5 39:21

42:1 43:12 44:16

45:17 46:6 48:7,16

49:12 51:3,8 52:5

53:5 54:8,15,22

55:17 56:4,17

58:12,21 59:8

60:17 61:7,14 62:6

62:23 63:11 64:7

65:12 66:13 67:3

67:11,21 69:16

70:6,12 72:9,25

75:17 76:8,22

77:16,24 78:23

80:24 81:23 86:9

87:3,24 88:19

89:11 90:20 94:13

96:1,10 101:9

110:9 111:6 112:2

112:14,22 119:12

121:4,25 124:11

124:20 125:20

126:12 127:22

128:6 129:7 130:7

132:22 140:20

143:21 145:18

151:13,24 152:21

153:15,25 156:18

161:5 167:23

169:4 171:13,16

180:14 187:17

189:20 190:2,8

191:4 192:23

193:2,3 205:10

218:12,22 219:9

221:3 240:1 259:7

259:13,21,25

279:20 284:16

287:1 294:1

a.m 1:20 2:16 5:2

131:2

B

B 15:11 49:22 68:15

69:9,13 246:1

263:23 271:16,17

279:23 280:2,23

281:7 282:4

back 7:12 13:25

36:14 47:3 48:20

63:19 68:10 70:1

72:11 83:7 94:23

97:4 104:19,20

110:16 111:8

112:5 129:21

132:10,15 133:12

138:15 157:9

166:10 172:3

184:14 185:7,16

195:9 198:11

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[301]

210:15 211:13

220:16 222:25

226:20 254:12

265:8 268:13

270:2 272:13

280:3 284:6

289:13

background 48:23

186:12,15,15

197:15 198:1

backyard 242:9

bags 20:1

balance 93:5 267:6

balk 187:14 259:4

ballpark 181:16

221:8 267:1 291:2

BARBARA 3:6

barrel 240:6,8

barrier 177:18

183:5

barriers 177:13

base 8:1 239:8

based 7:19,25 8:11

8:15 13:12 36:22

40:6 41:11,11

55:15,20,21 56:15

59:25 60:14 64:5

73:25 74:25 75:15

78:1 85:9,13 97:9

102:20,21 109:3

116:23 117:1

124:25 128:4

140:5,6,10 154:20

159:12 169:17

171:21,24 172:16

174:16 179:5

200:14,24 215:10

228:24 233:19

245:4 249:14

257:11 261:21

280:11 282:2

287:17,18 288:14

288:19 289:1,4

292:24

baseline 72:19 143:1

bases 146:22

basic 48:12

basically 30:13

85:12 111:2

162:18 166:16

220:22 236:13

237:24 263:4

292:18

basis 7:22 8:24 10:4

11:3,8 13:14 51:24

55:24 59:13 74:18

96:20 140:4,13

144:17 145:8

159:5 164:20

169:19 171:14

172:5 238:9

244:17 245:3

257:14

batch 49:22,23 50:6

51:15 53:18

bck 100:3

BCM 138:22

bear 117:9

Becausewhat

277:10

Beck 171:11 173:15

began 79:14 173:7

204:5

beginning 37:20

38:10,21 169:25

184:24 185:13

186:24 194:16

209:12

begins 7:15 27:12

51:15

behalf 2:13 5:5,14

9:14 10:10

behaving 65:4

behavior 134:25

222:5 235:2,5,8,12

235:24 254:10

behavioral 134:5,10

beings 148:11

belief 10:14 24:11

25:6 54:24 55:2,21

55:25 58:9,18 59:6

60:20,21 61:1,6,12

64:15 65:1,2,6

94:19 125:1,2,12

125:18 126:16,19

133:24 134:15,21

134:22 135:3,22

144:17 164:20

169:17 183:3

222:3,5,10 238:9

beliefs 7:19,20,21,25

8:5,5,6,7,8,17,23

9:20 10:4,5,7,9,15

10:16,23,24 11:1,2

11:3 17:4 57:25

61:20 62:2,5 63:2

63:8,16,17 64:6

72:14,16 125:23

126:1,6,10,11

128:4 137:13

139:16 223:2

225:15 284:15

believe 5:23 6:6,7,10

8:15,19 9:5 10:25

12:10 13:13,15

14:11 21:23 23:15

23:18 24:12 29:8

29:22 33:7 36:21

37:13,24 39:7,22

43:2 44:24 47:9

49:17 50:13,25

52:10 53:2 54:16

57:16 59:13 60:12

64:1,10 68:11 69:4

70:23 74:10,17

75:8,13 76:14

77:20 86:24 87:6

89:1 90:22 97:22

97:24 101:19

104:14 106:13

108:16,17 113:6

116:15 118:17

119:4 129:9

130:16 132:15

139:5 140:11

147:23 155:14

156:15 164:17,19

165:14 167:12,13

169:16 171:8

174:25 180:24

181:2,4 182:6

184:13 193:21

194:6 195:24

197:22 200:7,11

201:19 206:22

211:2 217:16

218:3,4,8 220:11

227:25 228:17

231:2 232:2

234:13 239:20

240:20 241:22

244:15,22,23

245:12 246:1

262:5 266:4,11

271:1,7 272:13

281:2 282:2 284:5

285:16 289:4,10

292:21

believed 7:17 94:11

141:10

believes 17:6

beneficial 9:11

286:1

benefit 278:24

284:18 285:17,19

285:20,22 286:15

287:7

benefits 9:6 10:7

274:9 284:24

285:2

best 41:18 145:2

166:20 179:5

193:4 198:2

259:13

better 35:9 101:15

197:7 221:7

293:22

beyond 17:20 18:2

29:11 43:6,15

152:4 199:4

213:21 235:17

271:5

be's 150:3

bias 143:25 146:18

146:20 199:2,6

200:1,5 201:7

biased 235:13

biases 235:17

biassed 94:2 143:19

bicycle 242:6

billing 262:11,13

bilt 29:10 225:9

252:10

bio 14:19 48:24

52:20 53:4 137:4

143:3

biodegradability

38:20 65:21,25

68:22 69:6 119:20

120:2,3,11,16,21

120:25 121:12

122:4,15,22 123:3

123:7,13 124:7

181:6 197:11

210:17 212:24

213:14,24 214:21

215:20 216:8,21

222:19 243:16,23

biodegradable

47:22 66:5,11 67:2

88:15 91:8 98:23

108:7 138:25

142:9 243:1

biodegradation

33:21 34:7 36:23

37:8,20,21 38:10

38:11 39:15,18,25

42:21 45:1 47:5

48:2,5 50:5 66:23

71:11 72:6 75:25

76:5,16 77:5

121:17 180:12

181:10 214:5,12

214:25 223:3

227:9,20 229:3,17

230:20 250:10,12

251:24 252:14

253:23 255:15

257:21

biodegrade 29:10

65:18 66:5,12 67:2

68:18 69:1 70:4,17

71:1,18,19 77:13

119:8,17 121:21

122:19 123:10

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[302]

124:10 127:5

138:22,25 139:8

139:15 140:9,11

141:11 142:9,18

145:6 212:11

221:12,18 251:9

279:24 280:6,13

280:24 281:5,7,14

282:5,8 285:21

biodegradeable

77:2,12 85:8 87:19

89:6 91:21 92:5

95:9 102:11

103:13,14 107:21

108:20 109:8,21

114:2,19 115:14

119:7,16 121:21

122:18 123:10

124:9,19 125:8,13

126:24,25 137:24

140:8 141:11

207:6 212:7

215:16 216:3,12

216:17 217:1

223:11 230:9,10

241:24 242:5,7,8

242:10 243:22

273:3,7

biodegradeed

279:17

biodegrades 243:1,9

biofilm 48:23 53:13

53:17 285:18

biofilms 1:5 2:5

137:13 263:10

264:1

biologically 279:25

biology 49:9

bit 51:9 185:17

193:23 220:21

282:23

bizarre 31:8

black 236:17,17,17

236:17,19,20,20

blank 141:3

blind 42:14 95:4

144:20 202:10

246:13 247:18,20

248:9,11

blog 164:4,8,18

165:1,9,13 166:17

166:18 171:4,7

blogs 127:8 159:18

162:6,13 163:20

171:22

blood 60:7

blown 219:20 220:1

220:3

blue 7:5,7

board 32:1 155:3

261:14 262:6,12

262:13 266:8

body's 60:7

bog 170:3

bold 273:1

bombard 191:18

192:17

book 134:14 135:2

157:11 159:20,20

162:4,18 166:15

166:18

boosting 60:5,12,15

62:16,19

bottle 91:4 244:9

bottled 91:2

bottles 91:2,9

bottom 21:24 27:16

91:16 170:2 215:5

Boulevard 1:14 2:14

3:7

box 179:25 182:22

brand 165:15

branding 155:5

brands 170:6

break 5:18 36:5,15

36:18 49:19 57:1

130:19,21,22

132:12 191:25

192:23 193:13

214:16 225:18

265:4 285:21

brief 217:17 267:13

briefly 270:22,23,25

289:17

briefs 284:9

bright 43:11

bring 286:1

bringing 13:14

brings 11:10

broader 122:3

broadly 99:24

157:12

broke 117:24

broken 84:19

118:21

brought 117:9 259:7

Btwo 245:12

builds 232:25

bull 18:2

bullet 51:14

bulleted 276:6

burden 129:5,5,18

business 157:10

182:25 185:4

197:8,15 198:1

199:6,6,7 200:12

200:12,16,18,21

200:23,23 203:13

203:13 206:15

businesses 205:23

buttons 225:8

buy 33:13 37:18,25

38:4 39:5 47:15

49:7,11,14 50:21

52:9 55:14 64:1

65:18 76:17

138:17 140:12

141:13 282:13

buying 206:7

buys 60:14

bye-bye 185:25

B24 280:4

C

C 3:1 72:23 76:6

245:12 275:22

277:23

CA 3:8

cal 38:19 178:12

289:5

calculate 40:9

California 1:15 2:15

2:20 5:1 132:1

202:16 207:14

208:23 209:18

262:1 264:10,12

293:15 296:3

297:4

call 8:22 21:25

29:25 59:20 75:1

75:14 78:17 81:5

84:2,24 96:16

133:11 147:14

155:4 181:9

197:10,10 230:15

234:21 235:3

267:16,17 272:13

290:9

called 5:5 45:21

49:7,18,22 52:9,20

53:4,13 148:19

159:20 248:5

270:15

calling 208:8 290:12

calls 83:9 133:15,16

148:9 191:19

192:18 197:21,24

202:14

calories 55:10

campaign 223:13

campus 155:6

canceling 231:19

candid 286:6

cannily 278:14

capital 48:24,24

49:22,22,23

208:19,19

capitalize 10:15

61:9 223:9

capitalized 10:8

capitalizes 235:13

capitalizing 59:5

61:5 62:4,8 223:2

capture 99:6 243:19

captured 288:16

Caputo 51:5 52:21

186:10,13 195:5

care 31:18

career 155:18,24

156:1,6

careful 43:5 172:24

261:19

carried 209:17

carries 168:15

carry 57:12 61:21

62:2 209:23

carrying 60:22

72:14

case 5:22,25 6:2,3

7:5 10:13 12:6,12

12:12,14,18,20,23

15:1 16:7 21:2

22:20 24:8 27:23

32:10,20 33:6,10

42:6 51:1,10 57:15

58:3,4 61:16 63:14

65:7 77:6 80:21

89:20 95:1 99:15

108:8 112:15

119:11 121:24

122:2 123:21

124:19 125:5

129:3,8,22 130:14

135:14 137:25

165:16 178:1

182:3 184:1

193:14 197:18

220:20 223:18,19

224:3,5,11 226:14

240:12 249:8

253:6,9,13 254:4

255:8 256:25

258:23 259:12

261:7 265:21

266:6,13 270:24

271:1 275:2

284:13 286:8,8,12

287:6 288:2,3,4

289:25

cases 11:10 17:3

18:1 30:3 33:2

43:18 64:10 72:15

81:24,25 82:2,10

85:10 96:15

136:22 141:22

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[303]

161:10,11 192:12

203:2 205:24

220:19 226:3,13

239:15,16 245:3

248:15 249:4,5

250:25 268:3,5

catalog 245:11

catch 293:19,22

categorcally 109:20

categories 101:12

103:2 105:19

117:18,19 151:4

181:14 251:7

255:16 256:9

257:21 281:22

categorize 151:16

151:17

category 45:3 84:18

116:17 117:5,7

118:1,6,10,22

251:10,15,20,21

251:23,25 256:24

257:1,3 280:14

281:6,11 282:20

283:12,14

caught 272:19

causal 142:13

causality 140:25

141:5 143:17

causation 137:1,2,7

137:11,17

cause 132:25 136:21

141:1,9 225:1

246:2

caused 160:12

causes 142:16

285:20

caveat 7:9

caveats 119:21

242:1 244:14

245:7

ceases 7:11

cement 184:16

census 117:3,9

Center 231:14

central 124:19

certain 7:6 37:25

38:3 44:2 60:7

121:15 128:16

136:12 137:13

138:4 153:2 161:1

172:15 210:6,8

211:7 224:9,19

225:5,15 248:17

certainly 14:12

16:13 18:15 20:24

24:8 28:19 31:16

38:2 45:11 46:8

53:8 54:23 55:1

71:21,23 72:3 76:9

89:13 91:6,13,15

100:14 106:18

112:15 119:3,13

124:12 125:23

136:8 140:21

141:1 143:9

144:12 153:5

154:20 155:22

156:24 158:5

159:4 198:16

200:2 201:9 224:2

224:3,11 246:1

250:25 253:3

254:1 258:6

288:12 291:12

certainty 89:14

149:24 153:17,22

154:14,14,15

160:20 161:14

168:15 176:23

225:6

CERTIFICATE

297:1,25

Certified 2:18 297:3

certify 297:5,14

cetera 205:1

chance 257:11 258:5

258:6,8,12

Chandler 3:12

change 35:1,6 53:13

54:1 60:2 153:7

185:18 228:23

changed 40:11 86:6

87:21 185:17

264:11

changes 194:3

changing 151:8

chapters 157:11

character 95:4

153:8

characteristic 57:11

145:14 152:23

153:10,13

characteristics

62:25 81:1,4 82:18

84:12,15 87:10,15

144:6 273:8

characterization

31:17 59:21 277:2

characterize 15:15

15:18 16:14,17

20:17,20 21:7,10

22:9,12 23:4,7,20

28:22 29:4 32:21

33:2 95:23 164:3

166:17 167:25

276:14,23

characterized 23:16

27:6 28:12,15,19

29:2 31:19 32:11

32:19 41:22

135:25 136:1

215:10

check 121:10,10,18

121:18 179:25

206:6 262:7 295:4

chemist 286:5

children 19:25

151:12,18,22

choice 176:8

choose 42:11 118:22

236:9 276:1

chose 236:5,6,13

chosen 232:12,17,18

233:8,16

CHRISTINA 2:18

297:24

CHUN 3:6

circumstance 38:13

39:20 109:25

140:15,17 254:13

circumstances

35:21,24 38:7

41:22 45:18 46:9

64:19

citation 170:15,19

citations 162:3

cite 162:2

claim 11:21 12:4

54:13,21 55:15,19

55:20 56:20,22

57:3,8,8,12 58:2,5

58:15 60:5,15

61:23 62:25 63:9

77:2 91:21 126:23

215:15,23,24

216:2,11,16,25

223:21,25 263:23

272:25,25 273:16

274:7,23 275:18

275:20,21 276:5

277:12,21 278:4

278:11 279:3,4,18

286:15

claims 11:11,24

50:21 51:10,11,17

51:20 52:2,4 53:23

69:18 72:5,20 73:3

73:7 200:9 215:18

216:6,20 272:24

273:13,17 274:5

274:12 275:1,6,8

275:12,14 277:15

278:17 286:24

287:15

clar 188:15

clarabout 203:9

clarification 32:5

clarify 37:2 129:6

129:19 130:1

207:23

classifications

282:16

classified 281:8

cleaner 19:25

clear 12:25 13:6

53:21 59:17 77:20

77:21 107:6

110:11 133:23

144:24 146:25

158:23 164:24

174:20 188:11

189:5 191:12

193:21 196:5,11

196:24 197:1,10

197:20,24 198:4

205:9 232:20,23

240:19 242:13

249:18 261:17

280:16 291:10

293:21

clearly 17:14 68:20

110:13 127:11,11

144:25 146:18

236:15 237:3

245:6 246:16

273:22 286:17

client 184:3 262:4

clients 123:19

197:16

close 32:9 80:4

103:5 161:10

163:7 219:18

267:3,9 268:22

283:25

closely 257:10

closer 143:10

278:19,22

clue 82:24 264:20

coats 49:17

code 25:24 26:14,16

29:11,15 30:2,7

40:21 42:5 43:14

44:4 45:15 46:4,13

144:24 146:17

180:17 237:1,2,23

249:5,20 250:5

261:7 281:18

282:3

codeable 46:17

coded 15:21 16:20

18:13,16,18,19

20:23 21:13 22:15

23:10 25:11,21

26:10 27:9 28:22

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[304]

28:23 29:19 31:1

41:1 42:22 43:10

44:8,22 113:16

145:1 146:20

246:19 248:18,18

248:23 249:6,9,10

249:15 280:5,25

282:6

coder 42:8,13

248:21

coders 144:21

239:24 248:9,13

283:24

codes 92:16

coding 26:20 27:1,3

27:18 44:8,13 45:4

45:4,8,9,14 144:22

145:3 239:14

246:14 247:21

248:4,6,20 250:20

251:1 283:6,6

Cohen 3:3 4:3 5:10

5:13 8:9 9:23

11:18 12:19 13:17

13:23 18:12 25:7

26:2,18 27:10 28:8

29:13 31:10,21

33:1 34:6,14,25

35:12 36:7,10,13

37:15 38:8 40:8

42:18 43:20 44:18

45:24 46:10 48:9

48:19 49:20 51:6

51:13 52:7 53:10

54:11,19 55:4,23

56:8,25 58:16 59:3

59:15 61:3,10,17

62:12 63:5,18

64:16 65:15 66:16

67:9,18 68:4 69:25

70:9,14 72:22 73:8

75:20 76:11,25

77:19 78:3 79:6

81:3 82:1 86:23

87:8 88:12 89:3,16

94:18 96:4,17

101:13 104:20,24

110:16,21 111:8

111:10,12 112:4

112:18,24 119:14

121:14 122:6

124:15,23 125:25

126:21 127:25

128:9 129:14

130:12,23 132:9

133:2 141:6 144:1

146:1 151:19

152:2,24 153:19

154:7 157:2

161:21 168:4

169:10 171:14

172:1 180:22

187:18,20 189:23

190:4,11 191:5

193:1,10,11

205:16 219:6,13

221:5 225:20,21

240:18 259:11,23

260:7 265:5,8,9

279:22 285:14

287:10 289:13,21

293:25 294:4

cold 60:9,13 62:20

collaboration 186:2

collect 90:3 93:20

collected 68:1

108:11 141:9

208:15 239:3

251:8

collecting 74:20

291:10

collection 14:16

168:13 248:8

collector 247:25

248:4

collects 174:8

238:11,13,18

coloring 6:5,7

column 15:7 19:6

21:4,19 22:24

271:8,16

columns 163:20

combination 27:17

78:14 290:21

combinations

255:10

combined 273:4

come 6:14 44:1 52:9

58:10 78:7 125:18

125:22 126:10

157:24 175:14

181:24 225:3

270:11

comes 157:14

159:10 255:25

comfortable 225:16

283:24

commence 293:5

commencement

39:17

commencing 2:15

comment 185:22

281:19

comments 281:11

282:22

commission 1:2 2:2

3:3 5:15 12:7

97:19 287:13,20

commissions 287:17

common 45:20 90:2

117:17 118:9

199:5 200:15

203:13 262:18,19

262:22

communicate 36:17

154:25 155:2

284:22,23 285:25

communicated

13:16 72:21

154:22 218:8

219:2 258:22

286:18 287:8

292:5

communicating

243:18 287:5

communication

12:16,17 54:25

55:2,20 56:6,9,13

56:15,20 57:23

58:10 60:23

126:17 156:24

219:8,10,12,22

communications

72:18 195:4 196:4

196:7,23 197:20

222:22 258:16

communicator

161:23

community 159:18

161:20 166:1

168:19 169:6

171:20 285:9

comp 252:10

companies 10:8

188:20 190:5,24

191:1,10 192:5,11

192:14,17,19

193:18,22 201:1,3

202:2 207:10

209:22,25 210:2

260:10,12 284:23

285:8,10 290:16

290:17,19 291:5

company 9:11,21

10:2,15 50:14

52:13,14 75:11

190:6 191:16,17

191:18,19 192:9

192:14,21 207:10

262:16

compare 71:19

comparison 117:10

compensate 133:12

compensated

133:18

competitive 243:20

competitor 55:7

167:21 168:20,23

168:24 169:3,9,22

competitors 55:6,9

168:3

compilation 14:4

complaint 5:14 68:7

137:8 158:18

162:15 187:6,22

190:6,10 208:17

210:4 211:6,18

260:10 261:21

284:13 289:3,8

complete 35:17 40:4

41:16 68:17

198:16 199:11,24

211:2 220:1,3

226:16 245:11

291:5 292:3,18

293:1,1

completed 79:14

208:3 209:4

266:16 290:6

291:12,13,16

completely 39:11

43:18 45:7 82:9

182:1 215:6

240:16 253:18

256:3

completing 149:16

181:25

completion 37:21

38:11 39:18

183:20 184:7,10

comply 124:3

component 12:13

140:12 225:9

components 60:7

204:1

comprehensive

151:2

compromising 95:4

computation 40:13

40:24 41:11,13

42:6 269:15

computations 40:14

40:18 239:10

compute 45:12

computed 75:13

249:14

computer 93:8

CONCATTENA...

41:19

conceivable 91:10

228:3

conceivably 57:15

88:24 117:25

concept 123:13

134:6

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[305]

concern 57:9 132:25

133:3

concerned 105:17

concerns 166:2

184:11

conclude 13:2,5

81:20

concluded 170:4

220:10 292:6

294:5

concluding 2:16

conclusion 82:3

149:25 172:23

conclusions 108:15

108:22 109:11,19

110:2 171:12

252:10

condensed 259:17

conduct 90:19,22

121:20 122:18

123:8,10 124:9

126:24 146:2,5

201:22 207:16

208:10 262:2

conducted 79:8

81:18 92:3 95:7

98:21 102:9

107:19 113:25

114:17 115:12

136:18 137:3,8

155:12,17,24,24

186:25 206:20,21

206:24 207:14

246:11 258:17

264:16 265:17

conducting 263:11

conference 157:16

confidence 93:21,25

226:17

confident 88:16

89:9,21 228:12,14

confidential 187:7

confidentiality

187:23 188:7

194:18,23 260:3

confirm 167:20

259:14

confirmed 259:8

confronted 126:14

126:23 128:3,19

177:11

confronting 183:3

confronts 77:3

connected 32:8

268:20

connection 33:6

connotation 206:15

connotes 206:5

consider 13:18

50:10 104:25

107:15,16 156:16

168:2,5,19,24

169:8 180:20

202:9 214:4,11,24

231:10 245:20

considerable 218:6

considerably 213:25

consideration

179:15 210:17

258:10

considerations 37:4

considered 47:6

105:10 106:20

107:13 113:22

114:13,16 115:10

178:6 250:22,24

291:8

considers 168:22

169:3

consistent 43:18

45:7 99:25 101:6

186:3 239:23

249:13

consistently 239:15

249:6

constitute 138:11

139:11 140:18

constituted 208:9

construct 208:7

constructed 41:18

93:11 149:12

150:12 172:19

175:15 256:2

280:12

consulting 136:24

consume 24:16

154:24

consumer 14:9 17:7

23:1 24:10 32:12

33:12,24 34:7

36:21 37:7,17,19

37:24 38:9 42:24

43:2 47:20,25 48:3

48:14 54:12,20

76:21 77:1,3 82:13

111:3 119:10

121:23 124:5

126:2,3,23 128:23

134:24,25 136:11

136:12,14,18

147:17 149:13,22

150:9,12,23

151:11 152:15

154:23 155:13

156:21 159:6,9,13

159:16,24 160:13

160:19,22 161:4

162:8,21,24

163:24 164:12

166:2 167:16,22

168:1,5,22 169:22

172:14 174:14

175:5,9,16,25

176:20 178:16,21

185:3 215:18

218:7 224:19

234:11,15 235:12

235:20 236:7

237:15 238:10,16

247:15 254:10

274:16 284:9,18

285:13 286:13,17

286:21,22,25

287:4,6,8

consumers 8:1,17

8:19 9:5,10,15

10:6,11,13 11:2,14

11:19 15:15,18

16:14,17 17:11

20:17,20 21:7,10

22:9,12 23:4,7

32:22 33:3,20

41:21,24 42:21

48:10 55:12,16

56:3,14 58:20 60:4

60:12,15 62:16,19

63:16,25 64:2

65:10,16 66:10,22

66:25 68:23 69:2,8

71:11 72:5,7 74:12

76:15 77:11 78:20

78:22 79:3,4 81:17

81:20 88:14 89:7

90:3 91:18,18

104:16 105:3,6,23

105:24 106:2,4,6

106:15,25 107:1,9

110:5 111:1,16,25

112:11 113:19

114:10,24 115:8

117:7 118:5 119:6

119:15 120:11

121:16,19 122:11

122:17 123:6

124:18,24 125:4,6

125:16,17 126:3,8

126:13 127:12,17

127:19,21 128:3

128:10,12,13,19

128:24 129:3,15

130:3,9 134:1

138:4,7,20,24

140:6 141:10,15

141:20 142:16

147:9 168:14

178:11 185:4

220:13 221:1,7,11

221:17,22 222:17

223:2,11,14,21

224:3,6,6 233:9,18

253:14 273:19,22

273:25 274:20

275:18,20 276:9

276:12 277:7,21

278:11,19,23

279:2,8,8,10,13

284:8,14,22 285:3

285:16,23 286:19

contact 147:20

191:17 220:3

230:3

contacted 194:15

220:6 291:1

contain 14:8 138:5,8

209:22

contained 57:8

161:24 189:25

190:23,25 192:8

192:13

container 85:6,16

87:13

containing 14:24

164:8

contains 55:10

165:11 249:11

288:8,11 289:9

contaminate 69:18

contend 143:18

236:8 238:16

241:1 245:10

contending 25:13,15

137:14,15 144:2

237:7,14

content 150:24

151:3,11 167:11

167:12 170:9,23

171:4 175:17,19

176:1,4,5,6,7,14

176:22 177:7,15

177:17,21 178:5,9

178:13 216:22

230:3 234:24

247:11

contention 17:7

58:7 134:13 135:2

135:20 139:3

145:8 177:10

237:20 252:18

253:11

context 25:20 32:5

34:13 38:24,25

39:16 42:9 43:1

46:8 72:13 97:6

120:23 122:11,23

122:25 130:9

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[306]

150:16 185:24

199:6 200:12

225:23 227:6

241:6 243:9,11

285:6

contin 119:22

continue 259:3

contract 262:8,14

262:15,18,23

263:3,8 266:2,5

contracts 262:25

contrary 194:5

284:8,15

contrast 26:15

150:11 241:18

281:19 283:8

contrasted 90:12

contribute 285:13

contributed 127:7

contributing 222:10

control 57:25 63:3

63:14 136:10,13

136:15,19,22,25

137:16,18,19

138:11,12 139:4,6

139:6,11,16 140:2

140:15,17,19,22

140:24 141:2

142:19 143:6,10

143:14 149:10

150:22 228:5

260:21

controlling 138:14

convenience 91:1,3

conversation 53:8

76:4 77:4 127:12

186:12 196:10,19

253:3 254:1,15

264:5 267:13,16

293:14

conversations 52:12

52:16,18 76:16

77:13 186:19

196:25 198:3

274:24

convert 18:20 29:10

converts 24:5 30:1

conveyed 71:25

cooperate 133:14

copies 14:2 113:3

158:14 159:2

259:1 289:15

copy 6:17 7:1 74:10

97:22 113:1 158:4

187:3,5,21 188:9

189:25 208:13

209:6 258:24

259:5 270:16,17

corn 33:15,24 34:2

corner 19:7

corporate 264:13

corporation 1:6 2:6

correct 10:21 11:15

12:3 13:3 14:20,21

15:21 16:20 18:2,4

18:8,14 20:23

21:13 22:15,23

23:10,15,22 24:20

25:9 27:2,4,14,15

27:20,21,23,24

31:14 33:22,25

34:1,3 36:25 44:6

44:14 46:2,3 47:23

47:24 48:5,8,15

50:8,9 53:2 57:6

58:8 59:7,17,18

65:8 68:8 69:10

70:11,13,18 71:8

72:2,24 74:24 75:3

77:5 78:5,6 80:23

81:7,8,10 83:11,13

83:14 84:10 87:19

87:20 89:10,22

91:9 93:1,2 94:8

95:17,25 98:1,2,12

99:10,13 100:13

100:16,17 101:19

101:22 102:7,8,17

103:19,20,23,24

104:1,7,8,10,11,13

104:14 106:12,13

106:21 113:13,14

113:17,18 116:25

120:9 121:17

123:14,22,23

124:10 125:8,9,14

125:19 128:5

129:6,20 134:6,11

134:12 136:15

138:9 139:16

140:19 143:15

144:15,16 146:11

146:12 152:23

153:14 156:15

164:7 165:11,12

167:18,19 169:24

173:3,21,24,25

180:13 181:7,20

186:21 187:24,25

188:9 189:8,9,17

190:3 191:8 192:7

192:22 199:17

201:5,6,17 202:23

204:2,3,6,7,11,22

205:9 208:15,16

210:10,14,23

211:10,11,20

212:1,24,25

215:12 217:10,15

218:2,3,20 221:2

224:14,20,21

225:17 226:16,19

227:10,13,16,17

227:21 229:4,7,8

229:10,18 230:21

231:25 234:19

249:22 250:13

251:6 254:21

256:6,17,18

257:18 259:6

261:9,16,24,25

263:12,20,21

264:3 265:21

275:4 279:19

280:8 281:1 282:2

282:9 283:23

284:5 287:15

289:22,23 290:1

290:24 293:3

296:12

corrections 295:5,6

296:9

correctly 7:23 13:4

15:5 16:10,12 19:3

21:5,21 23:2,21

24:19 25:9 26:23

33:18 37:1 47:16

49:1 51:17 54:13

58:7 63:6 83:8

129:17 132:18,21

134:2 141:16,17

147:6 152:19

153:20 170:10

175:25 187:1

191:2 195:16

203:22 209:19

210:20 212:13

213:3 214:17

215:7 234:18

242:19 243:25

257:17 258:4

260:8 271:13,24

273:10 280:4

284:10

correspond 139:10

corresponds 30:2

cost 128:24 174:13

175:3 258:20

couched 59:24

counsel 5:14 36:15

68:7 113:4 121:7

123:18,22 137:8

158:18 159:3

162:16 187:6,11

187:22 190:6,10

193:4 208:13,17

210:5 211:6,18

259:8 260:11

261:21 267:14

271:3 289:3,8

counsel's 284:13

count 48:11 117:23

163:1 239:17

267:23 268:9

276:17

counted 47:25

counter 262:9,14

counting 27:12

117:22 266:21,22

266:23 280:21

290:25

COUNTY 296:4

couple 19:2,12,19

19:19 20:16 21:5

23:1 52:16 57:2

155:3 187:16

191:15 192:11

193:12 280:16

coupled 243:11

couples 244:14

course 156:6 236:17

258:25 259:14

269:3

court 1:1 2:1 8:2

74:2 112:1,20

118:16 151:23

211:18 280:9

287:13

courts 287:17,19

craft 268:17

crafted 160:24

crafting 207:22

create 46:23 63:15

175:20

created 57:23 60:23

61:21 65:6 126:11

134:22 222:3

criteria 43:25

133:24 134:16,19

134:20

criterion 8:21

criticized 44:13

critiques 146:13

cry 64:17

CSarrive 262:9

CSR 2:18

CSRS 207:14,16

208:5 258:17

263:6,10,11,17

264:8,13,16,18

265:10

CSRV 262:2

cue 148:17

cup 180:2

curious 271:9

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[307]

current 162:21

currently 155:15

160:14 163:23

172:19 198:14

curriculum 155:9

158:22

customary 200:13

customer 195:12

196:6 197:25

198:8,24 199:22

199:24 200:15,17

200:19,20 209:16

212:2,19 223:22

253:1 258:24

259:5

customers 7:20

185:25 186:5,25

189:7 198:13,17

198:19,22,23,25

199:4,8,10,12

200:8,10 201:18

201:21 202:15

210:9 211:9,25

212:22 215:14,23

216:1,11,15,25

253:4,7 254:7

274:24 275:2,3,5

275:10,10,13

cut 262:7

CV 158:5

cycle 34:23

D

D 4:1 213:22 214:19

245:12

daily 74:18

dash 83:16 208:20

data 14:5,5,16 17:20

18:3,4 24:12 26:17

29:2,20 30:11 33:8

40:4 41:11,13,14

41:15,17,19 42:13

42:17 43:16,18,19

45:10,20 47:19

66:14 67:13 68:2

74:20,22 90:3

93:20 94:21 99:3,4

108:1,11,12,14,16

108:25 114:7

116:14 117:2,3,3,9

117:15,24 118:3

118:19 119:3

141:9 142:4

148:18 152:13,14

153:8 161:8 174:8

179:10,12 180:7

181:14 208:15,20

209:22 210:8,10

210:22 236:23

237:4,8,9,10,11,12

237:14 238:1,4,6,6

238:11,13,14,17

238:21,23,24

239:3,9,11,12,18

239:23 240:3,12

240:13,16 246:18

247:23,25 248:4,5

248:7,8,23 249:4,6

249:7,9,10,15,16

249:20 250:21

251:8 252:5,19,24

254:20 255:7

256:4 271:18

272:14 280:2

282:15

date 159:16 261:22

295:11 296:7

297:17

dated 289:22 297:20

dates 157:25 158:5

220:9

David 2:13 4:3 5:4

132:4 295:9 296:6

day 41:3,4 68:1

223:1 252:6

296:14

days 23:2,17,24 24:1

24:6,19,23,24

25:10,12 29:1 41:8

41:8 97:4 251:12

254:24 255:3,24

291:6 292:23

deadline 219:18,21

deal 66:18 105:12

105:14 137:21

139:14 156:22

222:13 263:4

dealing 90:25

125:11

deals 136:6 159:21

dealt 121:11 157:9

162:7

decades 93:19

decay 14:20 70:4,18

71:2

deceive 59:1,4

deceived 54:13,21

54:25 55:3,16,22

56:3,16 58:14,15

59:14 60:16,25

221:23,25 222:2

253:6,13,24 254:7

deceiving 58:19

December 194:20

deception 13:14

57:24 58:11 61:25

62:22 64:6,12

130:6 133:24

134:10,14,17

135:2,17,21 136:2

136:7 220:14,18

220:19 223:22,23

224:2

deceptive 63:10

72:5 134:5

deceptively 12:15

decide 35:5 74:2,3

76:17 88:23

decided 186:6 217:8

217:14,25

decides 184:3

decimal 99:18

decision 27:1 29:15

42:12,16 55:21

91:7 177:11 203:1

203:11 206:2,13

206:16,18 207:5

217:20 218:9

219:3,5 222:6

223:25

decisions 60:24 65:5

154:20 168:16,16

203:11,18 204:14

204:17,20 205:23

205:23 206:4,11

248:17

declare 296:7

declined 83:22,25

84:5

decompose 14:20

37:19 39:6,11,11

70:4,17 71:1

241:25 242:6,7,10

242:12 244:9

281:13

decomposed 215:6

280:6,13 281:17

decomposition

212:12

deem 87:11

deemed 40:11

defense 187:11

253:1

define 61:8 123:19

128:1 212:24

233:1

defined 115:2 117:5

123:17,22 232:13

232:18,20,22

233:7,9

defining 102:2,3

definitely 200:16

definition 12:23,24

13:1 48:2 68:6

109:21 127:11

134:9 139:17

147:11 168:9,11

183:13 232:15

233:10,12

definitive 160:6

242:14

definitively 116:8

degradable 14:19

37:18 39:5 47:15

65:18

degradation 33:13

degrade 142:24,25

245:21

degrading 37:25

38:4

degree 8:20 89:14

109:1 120:14

124:25 143:24

153:17,21 154:14

154:15 168:15

180:9 218:6

222:20 277:18

288:18

degrees 243:23

deletions 296:10

demographic 81:1,4

84:12,14 87:10,14

148:25 231:17,22

231:23,23

demographically

80:22 81:19 228:1

231:3,5

demographics

105:20 107:5

112:17 228:10

231:14

demonstrably

122:10

demonstrated 109:7

demonstrates 78:25

143:23

demonstration

57:22

denial 284:7 286:12

denominator 237:22

deny 138:4 285:16

denying 284:14

depend 109:12,16

116:1 178:18

231:6 232:7

depending 10:18

37:4 98:11 115:2

115:24

depends 24:22

40:22 44:7 62:24

82:5,11 96:11

145:1 156:10

181:2,12 223:16

223:16 229:13

279:1 287:12

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[308]

depose 190:6

deposed 5:15 190:10

deposition 2:13 4:6

4:7,7,8,8,9,9,10,10

4:11,11,12,12,13

73:16 131:3

132:12 143:12

189:6 193:14

266:16 267:11

268:1 288:15,20

294:5 295:3 296:7

296:9

depositions 268:6

DeR 164:8

describe 175:7

described 23:16

143:5

describe's 185:23

description 217:18

217:21 218:5,10

218:19,24

descriptive 136:23

design 71:17,22

123:13 124:13

139:13 140:23

143:8 186:20

designed 32:18 66:7

150:11 201:24

designing 53:21

199:5

desire 102:21 225:8

desired 273:8

desirous 296:10

detail 52:3 194:21

213:7 283:22

details 219:7,12

determination

41:17 161:8

determine 64:11,19

97:12 117:1

118:23,25 137:24

149:10 233:4

257:8 259:19

determining 72:4

89:15

develop 54:16 68:5

68:16 148:1 160:6

285:1

developed 63:2

developing 263:3

development 149:21

devices 80:7

dial 78:11

dialed 78:5

dietary 60:4

differ 81:6 139:21

difference 29:20

55:8 77:9 83:23

119:5 144:14

165:2

differences 68:25

70:2,16,25 71:5

90:24 103:12

109:2,12,17,18

110:1 118:23

120:15,22 231:22

231:23 243:20

different 29:7 38:17

39:12 44:10 46:20

52:3 54:6 59:23

65:5 66:7 69:11

70:3,17 71:1,11,12

71:22 72:6,7 77:2

80:22 92:4 94:2,3

95:8 98:22 101:11

101:12 107:20

108:6,13,19 109:8

109:14,15 112:8

113:5 119:1

122:10 124:13,13

129:4 138:1

141:24 148:1

158:11 160:4

165:10 172:22

182:1,18 191:11

192:17 208:14

221:12,13 225:14

225:14 228:1,4,19

231:3,5 232:4

234:20,23 242:2

244:11 250:11

252:22,22 255:10

256:3 268:3 274:5

274:9,11,12

275:12

differentiates

284:19

differently 65:4,4

92:6 95:10 98:23

100:22 102:11

107:21 114:2,19

115:14 116:6,21

121:9 286:20

difficult 13:2,5

43:24 128:13

141:4 158:9

232:16 250:16

291:25 293:19

difficulty 62:9 112:7

141:22 177:16

240:9 282:23

291:8

digit 78:11,25

digital 155:5

diread 26:23

direct 7:13 14:25

16:7 18:25 23:14

33:9 47:9,12 48:22

51:14 68:14 97:23

113:11 135:14

146:23 161:25

163:14 271:7

272:22 280:2

directed 22:4 123:6

171:7,8

direction 146:19,21

176:25 226:24

227:1 297:12

directional 161:17

directly 218:16

262:1

disabilities 115:21

disabled 113:17

114:11,18 115:19

115:20,23 116:5

116:11,18,22

117:6,14,20,25

118:7 119:2

disagree 14:15,17

105:25 106:7

107:3 282:24

disagreement

180:23

disallow 46:24

disclose 189:7

disclosed 207:18

265:18 289:7

discount 223:24

discovery 167:14,17

167:21 169:2,11

discuss 259:25

discussed 41:21

100:15 132:16

197:25 222:25

223:7 224:10

246:17

discusses 134:16

discussing 32:1

129:24 185:15

186:9 193:16

196:7 225:22

discussion 36:12

65:25 130:24

134:9 162:21

167:15 176:24

185:24 201:19

271:18 274:25

discussions 265:13

discvoery 168:21

dish 222:2

disPersian 103:2

disposal 85:3

disposition 74:13

disproportionately

101:17,25

dispute 238:2

disqualification

85:12

disqualified 84:22

85:1,5,12 86:16

87:2,7

disqualify 15:23

16:1,22 18:22

20:25 21:15 22:17

23:12

disregard 42:4

disregarded 41:25

diss 231:23

dissolution 33:21

34:8,12,15,19,23

36:22 37:8 47:6

dissolve 33:16 34:2

35:22,24 214:10

dissolves 33:14

distortion 26:17

40:4

distribution 111:21

111:24 228:19,23

231:12 232:4

251:20 255:11,13

256:9,13 257:5,10

distributions 252:11

255:20,22 256:2

DISTRICT 1:1 2:1

disturbed 177:12

diverse 103:15

diversity 219:1

document 14:24

50:10,11,16,20,22

50:24 74:9 113:4,8

135:10,17,20

178:10 289:15,18

documented 148:7

documents 50:14

52:11 136:8

194:25

doing 42:24 62:10

90:3 103:1 114:8

117:22 127:17

147:1 207:3

222:15,15,16

223:4 241:20

245:22 248:3,6

269:25

dollar 263:7

dollars 208:6 264:22

266:1,24 269:10

269:16,19,21

270:3

dominated 222:21

door 175:18

dot 273:3,3,3

double 95:4 117:22

144:20 202:10

220:22 246:13

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[309]

247:18,20 248:11

doubt 152:5 265:2

283:16

dozen 17:8 264:17

267:24

Dr 5:11 24:4 36:14

40:9 44:13,22

45:10 50:2,22

67:23 74:8,9 113:1

193:4,12 238:21

259:6,9,14 260:13

267:13 270:18

271:4,4 281:20

282:15 283:8

288:15,19,24

289:17 294:2

draft 208:4 258:22

273:12

drafting 50:17

draw 43:11,21 44:5

141:13 142:15

252:9 256:7,10,25

257:4 258:13

drawing 172:24

drawn 108:16

252:19

draws 257:9

driven 235:5,8,12

235:24

due 55:10 60:9

219:19 289:25

291:7

duly 5:6 132:5

D.C 3:4

d/b/a 1:6 2:6

D55 213:19

D5511 213:3

E

e 3:1,1 4:1 245:12

262:6 296:21

earlier 20:8 49:3

69:19 71:25 79:16

100:15 109:4

112:7 132:16

162:4 166:16

186:18 209:6

223:1,8 235:14,18

247:3 291:19

early 84:2 156:1

163:2 185:19,19

185:21 190:17

194:9,12 220:11

293:7

earth 19:25

easier 14:23 15:2

90:19,22 121:20

122:18 123:8,9

124:9 126:23

256:19

eastbound 194:16

easy 182:5

eccentricity 6:16

ECM 1:5 2:5 36:18

36:18 48:23 49:21

50:6,21 52:8,20

53:3,12 65:11

77:11 127:18

137:3,13,23,25

138:5,8,25 140:8

140:11 141:11,13

142:9 143:15

186:21,25 188:4,6

188:9,13 193:4

195:11,22 198:13

199:13 201:1,3,16

202:17 205:3,20

206:18,20 211:9

211:10,25 212:5

216:20 218:15

219:2 252:25

253:5,12,25 254:6

263:10 264:1

265:17 266:4,9,13

273:18 274:12,17

275:23 286:8,13

ECMs 69:8,14 72:5

198:8 200:9

215:14,15,17,22

215:23 216:1,2,25

273:12

ECMwas 217:24

ECM's 72:24

216:11,11,15,16

216:25

ECM;s 72:7

economist 285:8

Econsiders 143:3

edit 13:21

editing 42:13

editor 159:11

160:14,14

educate 159:14

educated 228:8

231:8

education 55:11

56:1 60:10 81:11

126:4

effect 45:9 134:24

231:19,24 234:16

271:22,24 274:22

277:17 283:20

effective 205:6,19

effects 271:20

efficacious 286:21

efficacy 228:4,7

286:13

effort 8:14 18:19

73:3 93:4 133:5

149:13 243:19

eight 22:21 147:5

150:15,18 152:5

152:11,12,20

153:6 164:5

188:23 191:11

192:9,10,12,13,18

209:22 211:8,23

212:10,10,17

215:9

either 46:25 85:2

105:9 117:15

133:4 177:25

194:4 196:1 213:2

218:3 279:8 290:6

290:6

elaborate 249:13

elaboration 288:13

electronic 189:12

elects 188:6

elicited 72:16,17

eliminate 40:15

42:11 45:21

email 85:17 148:4

189:16,19,25

193:8

emails 148:2 258:15

embarrassed 227:1

embarrassment

224:23 225:4,23

226:2,4,10,23

embedded 245:13

emerge 65:24 67:17

67:20

Emord 3:10 188:12

188:12,16 189:18

189:24 192:5

217:12 218:11,16

218:18 260:8,23

260:25 263:17

266:5 267:19

employ 127:13

203:4 220:22

282:2 290:10

employed 85:1

115:22,24 116:4

118:20,20 167:17

209:18

employee 297:16

employees 52:13,14

192:20

employment 118:10

employs 93:9

enable 71:10 162:15

261:8,11 271:12

encompass 185:2

encourage 224:17

285:12

encouraging 224:13

ended 28:25 121:1

282:21

endorsed 287:19

endorsing 147:3

energy 55:6,13,15

55:25 56:11 57:4,8

58:2,9

engage 76:15

engaged 42:23 97:7

127:12 194:14

235:2 247:8,21

engagement 194:19

266:7,10

engine 263:24

enhanced 78:16,18

enormous 127:6,10

172:18 177:16

enter 226:5 234:1

entertainment

151:16

entire 152:1,8 153:2

156:6 182:10

187:19 199:20

219:7

entirely 229:14

entitled 50:5,21

entries 14:13,25

19:24

entry 33:9,11

environment 279:25

Enviroplastics 1:6

2:6

envision 176:15

equivalent 45:6

equivocal 229:15

equivocally 229:3

229:13,16,19

Eric 3:10 186:17

267:17

erroneous 26:20

27:3 43:8,9,22

54:17,20,24 55:2

55:21 58:18 59:6

61:1,5,11 62:1,5

63:8,15,17 64:25

65:1,6 72:15

284:15

error 96:8,13,21,25

errors 248:14,25

249:7

erythematic 46:23

especially 7:21

ESQ 3:3,6,10

essentially 11:5

166:18

establish 13:11

43:25 97:14

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[310]

107:17 136:21,25

137:2,7,10

established 85:9

105:17 135:11

145:15 146:9

152:3

establishing 8:22

105:18 106:23

establishment

134:17

estimate 71:11 72:6

75:21,22 117:21

118:4 136:20

179:5 183:23

184:5 267:2

estimated 219:25

250:10

estimates 121:16

258:20

estimating 183:9

estimation 95:19,25

96:3

et 205:1

eternity 45:5,7

46:16

ethenografic 99:24

ethgraphic 100:24

ethical 187:9

ethnic 101:11

ethno 101:5

ethnographic

100:12 101:5,16

101:24

evaluate 11:24 12:4

45:9 53:23 121:8

123:12 160:5

185:22 285:19

293:12

evaluated 63:9

event 211:15

events 8:6 194:11

eventuallily 203:3

everybody 88:5,7

152:11 223:23

291:21

evidence 34:22 35:1

55:18 56:19 57:7

64:25 126:22

148:21 181:23

241:18 248:12

271:23

evident 211:14

evolving 160:2

exact 54:5 105:20

154:8

exactly 18:5,17 75:5

118:14 254:2

261:9,13 264:11

281:14,24 293:6

EXAMINATION

4:2 5:9 132:8

examined 5:7 132:6

139:7

example 33:24

46:12 56:9 58:1,9

81:15 84:23 90:11

98:7 102:3 139:18

164:11 230:12,13

230:14 235:20

242:2 278:6

288:14,25

examples 109:18

150:5 151:6

157:19 249:24

exceeded 103:22

exceeding 104:9

excerpt 14:23

excerpted 165:9

excessively 105:5

exchange 178:8

278:13

exclamation 273:3

exclude 85:14 89:24

102:3

excluded 40:12

85:25 103:21

104:9 198:20

excludes 129:10

excluding 257:19,22

257:25

exclusion 198:25

exclusivelily 125:18

exclusively 126:10

excuse 15:11 50:1

146:23 177:5

272:14

execute 203:5

exercise 46:23

exhibit 4:7,7,8,8,9,9

4:10,10,11,11,12

4:12,13 5:24,25

6:2 13:24,25 14:1

14:3,7 15:2 23:15

33:8 47:10,11

48:21 50:1 68:10

74:7,7 83:7 89:6

97:23 98:7 112:25

113:1 129:22

130:16 133:21

203:15,16 210:22

263:24 272:14,16

272:17,23

EXHIBITS 4:6

exist 116:14 284:20

existed 158:4 200:5

existence 151:9

exists 167:12

expanded 174:3,7

expect 14:12 42:14

94:17,20 226:17

273:19

experience 11:14,24

76:21 78:24 85:23

89:17,19 167:15

175:8

expert 5:22,24 6:3

12:6 13:18 32:3,6

32:7,11,21 59:19

73:15 146:2,5

156:16 185:20

225:2 267:22

268:1,4,16,18

269:3,6,7,8,13,24

286:3 289:24

291:6

expertise 7:22 11:4

11:15,20 12:4 43:2

49:10 59:25 75:15

156:22 157:1

213:10,21 289:2,5

explain 30:10 223:8

279:7 291:4

explained 173:18

explaining 267:15

explanation 258:12

explicit 40:7 57:10

explicitly 45:11,13

exposed 58:5 127:17

275:14 277:15

278:11

exposure 56:23

express 89:10,22

228:20 230:11

232:5 279:18

extent 26:9 60:20

66:14 70:8 108:13

122:25 193:6

200:3 223:24

238:7 241:17

242:16 246:25

248:9 261:14

279:12 284:17

285:24 288:17,23

exterior 49:17

extreme 45:15,15

extremely 44:14,23

45:10

F

F 189:14 190:1

face 30:18

facilitates 49:18

fact 6:1 7:22 8:25,25

10:22 11:8,23 12:5

14:8 24:11,13,14

25:5,11 29:23 30:1

30:14,15 31:9 36:1

39:8 47:18 53:20

56:19 58:23 66:1

66:21 70:24 76:3

88:9 107:15

110:13 111:23

124:2 140:23

142:8 143:4 158:5

175:22 183:1

186:20 203:1,15

220:13,23 221:24

222:1 223:20

227:2 235:22

241:18,20,22

243:12 244:17,19

245:5 247:9 249:5

252:21 253:21

257:4 258:8

275:13,17 284:22

285:17 286:15

289:7

factor 170:3

factors 10:18 231:17

231:18

facts 10:13 35:11

59:12 60:19

223:17 236:22

factual 13:3 29:9

31:7 244:6 284:8

284:14 285:15

286:16

factually 12:5 26:5

43:8,8,22 64:3,4

236:14

faculty 31:22 155:10

failed 144:24 236:8

245:21

fails 26:22 130:4

failure 26:14 146:17

fair 32:7 59:21,22

75:21 76:1,2 94:4

96:5 120:10

154:13 164:2

188:14 214:3,11

214:23 215:13

226:1 227:18

229:23 268:10

276:23 277:2

287:21

fairly 31:8,8 207:20

207:24,24 208:1

274:8

fairness 230:12

fall 118:5 190:18,22

192:4 194:4

281:25 283:1,3,12

283:13 284:2,3

falling 117:7

false 73:20 74:6 78:1

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[311]

78:2 83:4 133:24

134:15,21,22

135:3,22 222:10

223:2 237:8

286:25 287:4,5

familiar 9:1 49:21

49:25 150:24

151:1 160:13

213:8 268:17

far 13:9 15:7 72:14

142:24 161:4,11

162:24 163:3,8

251:13 265:24

266:1 271:8

fashion 24:9 29:25

80:5,8 113:5 207:2

fast 43:25

faster 285:21

fault 179:5

favor 26:11

favors 26:13

fear 95:4

feature 6:23 112:19

federal 1:2 2:2 3:3

5:14 97:19 242:25

243:12,14

feel 156:22 193:8

224:19 225:16

feels 224:8

felt 276:4 283:24

fewer 229:1

field 262:2

Fif 189:19

fifth 19:6 21:4,19

22:24

figure 160:7 181:16

181:20

file 208:17,24 209:1

209:6,24 210:8

211:1,2

filed 27:23

fills 33:17 216:4

279:9

film 48:24 49:7,11

49:14,18 52:9,20

53:4 138:17

140:12 141:13

143:3

films 50:21 137:4

final 74:10,16,17,21

78:13 83:10 208:4

financial 206:1,9

financially 297:15

find 15:2 96:15

117:8,15 128:13

144:23 162:20

163:23 175:22

197:14 210:6

228:6 231:11

249:2 271:23

272:17

finding 15:6 19:4

133:24 223:6

240:9

findings 145:4

finds 228:22

fine 181:17 188:6

265:5

finely 202:24

finished 30:22

184:17 273:6

firm 92:25 93:4,9,16

93:18 94:20

167:13 169:15

198:21 207:3

247:5 258:17

285:24

firms 169:8

first 5:6 7:14 24:18

26:19,20 28:14

33:9 40:20 48:22

51:15 64:25 83:21

84:3,4,8,13 86:15

133:22 134:19,20

144:19 160:21

161:6 186:16

209:3 210:11

213:1 218:14

224:20 230:12

232:14 236:11

248:24 251:10,19

251:23 257:1

268:15,15 279:17

280:14,17,22,25

283:1 284:7

Fish 270:17

five 18:25 19:8

20:15 21:17,25

22:2,3,6 41:10

50:20 69:15 72:23

72:23 75:18,23

76:5,6 85:18 91:17

156:10 179:25

184:14 199:13

208:20 209:3

210:16 211:15,20

216:3,13 256:20

256:24 263:23

264:21 269:17,20

270:1,2,6,10

272:22 274:21

275:16,22 277:23

278:7 279:18

280:2,4,23 281:7

282:4 289:11

five-minute 36:5

flawed 146:6 179:11

240:13

flaws 123:14

flip 14:24 31:18

42:10 228:12

271:15

flipping 22:22

flu 60:9,13 62:21

flyer 50:2

focus 48:17 120:18

121:3,6 170:7

186:4 188:24

251:7 278:6,8

focused 53:20

foe 87:9

folks 293:14

follow 46:1 239:14

240:21 241:5

251:12,17

followed 69:23,24

93:25 248:16

following 33:12

113:13 138:13

246:12,21

follows 5:7 132:6

follow-up 129:23

187:16

foot 7:6 166:10

footnote 134:4,8

167:7 170:1,23

forbidden 243:17

force 115:3

forces 170:7

forcing 228:24

foregoing 295:2

296:9 297:6,8,13

forget 19:14

form 73:5 80:19

158:4 206:6

212:18 235:23

239:19 268:25

formal 127:8 194:17

194:19

format 189:12

formatting 208:14

forms 230:1

forth 126:4 185:16

286:6 297:7

forward 184:2

274:8

for's 198:21

found 15:9 19:9

134:14 161:10

167:1 173:6 218:7

271:19

foundation 159:23

161:9 162:9 163:7

foundations 134:10

founded 94:3,12

four 14:12,18,24,25

15:3,4,11,11 16:8

17:18 19:1 21:3

22:5,6,21 50:2

68:14,15 69:9,9,12

69:13 70:1 73:9,10

73:10,22,23 74:22

74:23 75:1 77:22

77:22 83:10,12

103:19,21 104:1,7

113:1 115:20

158:1 209:3

256:20,23 270:2

277:1

fourth 27:16 186:24

215:5,12

fraction 30:3 199:9

199:20

frame 78:14 84:16

87:16 93:10,11

187:1 191:22

232:23,23 233:4,7

233:13,14,15

261:18

framed 58:25 67:14

122:24

frames 215:11

framework 129:1

frankly 109:2

fred 26:25 29:14

40:9 77:10 238:21

Frederick 3:14 24:4

24:12 25:11,24

26:9,22 29:24 30:7

44:13,22 137:6,15

138:3,20,23 141:8

141:23 142:7,14

143:4,11,19 144:4

144:9 145:8

151:21 180:7

232:12 233:17

234:10 236:5,8,24

237:8,16 239:2,7

240:21,24 241:12

242:20 245:9

246:9,11 247:12

248:14 249:20

250:5 251:8 271:4

281:20 282:15

283:8

Fredericks 67:23

82:20 267:13

288:15,19,24

Frederick's 23:24

29:2 45:10 141:18

144:3,15 146:14

152:6 179:2

181:14 233:8

247:16 249:9

free 128:2,4,11,20

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[312]

128:20,22,22,24

129:4,10,16

130:11 178:9

freely 193:8

frequently 126:13

148:21 225:3

Friday 41:19 239:20

267:14

front 25:2

fruit 56:24 58:1

frustrated 177:20

177:22

FTC 8:10 9:14

10:10 11:9,21,25

12:2 59:7 117:2

135:3,7,11,17,21

136:2 223:6,14

265:18 268:16

285:8,16

FTCs 9:1 135:12

286:10,11

full 26:20 33:15

143:7 147:3

195:11 217:4,9,15

217:20 218:1

219:8,14,20 220:1

220:3 291:13,19

292:19 293:2

fully 41:12 67:14

245:21 279:17

fundamentally

179:10 240:13

funding 184:12

further 9:9 14:2

73:11 81:18 86:20

90:16 108:20

123:25 169:19

177:4 212:15

213:15,24 214:21

221:16 223:3

252:16 268:13

271:23 283:2,21

290:9 292:6 294:1

297:12,14

fuse 24:18 226:15

future 68:6 275:21

G

gain 69:5 72:20

216:20

gaining 216:7

gather 126:15

gathered 236:23

gathering 94:21

gean 18:2

gender 85:10 95:15

95:20 96:16 98:1

98:19 99:6,8 149:4

genders 98:22

general 47:14,22

48:4 59:20 61:20

64:24 65:20,25

66:2,19 69:22

76:19 85:7,9 87:18

88:6,14 89:5 95:21

97:11,15 103:12

106:22 119:19,22

120:2 121:1,11

122:14,21 123:3,6

124:6 125:7 136:2

151:3 159:25

161:19 172:12

212:18 216:7,21

218:19 274:1

288:16

generalized 60:20

generally 39:23

63:25 69:21 78:24

81:8 82:9,16,21

89:19 115:5 116:3

120:11 122:5

123:19 139:1

151:1 183:7

222:23 228:6,22

235:21 276:9

281:18 287:2

generate 29:9

generated 78:11

generic 49:14

genuinely 241:22

285:2

geographic 94:1

geographically 93:5

93:14

getted 196:15

getting 13:3 173:22

177:16 219:18

291:9

Gilbert 3:11

give 9:22 10:19

24:17 35:20 38:18

38:18 44:9 46:8

55:5 58:22,23

59:10,23 61:16

69:19 74:4,8,19

78:1 83:2 86:16

98:7 105:12,13,15

105:16 136:20

139:18 142:20

148:24 149:3

157:19,25 158:8

159:14 163:1

170:3 175:23

178:11 180:3,11

180:12,20 181:9

181:11,12,16

182:3,11,14,17

194:21 199:15

200:13 225:25

227:2 230:19,22

243:4 252:8

278:11 283:10

given 10:9 38:9 56:2

67:6,22,24 74:18

98:10,14,15 103:8

103:10 121:6

137:21 149:23

150:3,22 170:13

172:22 176:21

177:3 183:10

188:18 194:11

200:5 208:22

214:3,22 215:10

217:17,21 227:24

228:16 231:1

232:1 236:7

238:22 239:5,24

241:25 249:5

251:21 256:16

263:16 264:2

gives 33:24 83:17

155:9 244:16

giving 29:18 45:5

86:18 87:1 150:5

179:15 215:11

232:8 261:6

glad 259:7

glance 14:14

go 5:16 6:3 13:9

15:10 17:20 19:22

21:2,17 22:4,20

27:11,16 33:7 36:4

36:10,14 43:15

48:21 61:18 97:3

98:7 126:15

130:23 133:21

138:15 142:24

167:7 176:25

182:7,22,25 184:2

186:23 189:1

193:1 195:9

196:16 200:13

205:15 212:10,15

222:25 224:22

263:2 265:6,8

268:13 272:12

284:6 289:11,13

291:2 294:4

goal 103:3,5 177:19

235:5,8,12,23

goes 27:13,18 30:11

51:16 275:24

going 14:22 18:2

28:18 30:25 36:7

46:7 67:16 74:1

77:21,25 86:16

88:7,8 89:2 100:3

104:18 112:5

127:14 130:2

133:9 137:17

142:1 147:1

162:18 163:23

174:17,24,25

175:19,20 176:25

177:20 183:14

185:20,20 187:15

189:8 191:24

192:24 208:18

213:12,15 219:25

225:17 249:2

259:4 260:16

265:3 266:23,25

270:2 272:23

285:11,12 289:14

292:3,25 293:4,8

good 5:11,12 32:16

86:14 148:21

192:23 272:8

287:12,18

google 128:11,20

147:5 149:15,22

150:9,23,25

151:11 152:14

154:23,24,25

155:2,12 159:6,8

159:12,16,24

160:1,19,22 161:4

161:16 162:8,21

162:22,24 163:24

164:11 166:2,5,5

167:1,15 168:1,5

168:19,19,22

169:5,21 170:4

171:20,25 172:13

172:18,25 173:22

174:7,13 175:5,9

175:25 176:20

178:16,21 230:4

234:11,15 235:9

235:12,14,19

237:15 238:10,16

247:1,3,10,15

271:12 272:3,3

googled 126:24

127:4

gotten 209:2

government 222:19

222:22

graphic 101:5

great 66:18 83:5

105:12,14 137:21

139:13 156:22

200:5 222:13

263:4

greater 56:22 71:16

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[313]

80:12 200:13

216:17 217:2

226:4,8,10,13

227:5,5 269:22,23

280:1

greed 109:20

green 159:20,20

162:4,17 166:15

166:17

grog 167:22

ground 80:18

grounded 67:5

group 8:24 71:17,19

81:5,6 90:23 101:5

109:20,22 136:10

155:7,8 167:14,18

167:21 168:22

169:3,12 186:19

192:20 227:25

228:18 231:2

232:3 251:23

groups 71:23 99:25

100:12 101:7,11

102:23 108:11,25

110:1 250:9

grow 68:9

guard 148:13

guess 36:3 64:17

170:16 194:23

224:10 271:16

guided 121:10

guilty 243:21

H

half 24:6 25:4,12,21

25:25 26:4,7,10

29:15 36:7 133:9

152:1 192:24

265:3

hall 242:22

hand 82:12

handling 28:24

128:23 129:11,13

129:17 130:2,11

handshake 263:5

hang 235:4,7

hangs 230:16

happen 88:9 89:23

148:10 183:11

185:4 240:14

257:1

happened 93:7

264:6

happenment 203:6

happens 128:17

148:21 214:6,13

214:25 235:9

happy 7:20 158:19

178:7,11 193:7

210:3 221:8

hard 43:25 102:23

158:4 207:1

havave 88:6

hazardous 274:13

head 40:19 97:3

115:1 178:22

heads 122:22 245:23

hear 185:10,12

hearing 1:19

heart 12:23

held 36:12 64:14

130:24

help 64:18 148:15

196:15 241:7,10

277:6

helpful 196:14

197:7,12 277:9

279:14

Henning 163:15,25

164:19,25 165:6

hereunto 296:13

he'll 104:4

high 44:23 45:10,22

46:2,5 91:14

153:17,21 154:14

154:15 231:8

265:2

higher 228:9 231:8

highly 72:15 147:21

147:22 228:8

237:11,11 238:24

highs 45:15

Hispanics 102:3,6

history 161:13

163:3

hobble 281:10

hold 61:2,4 62:1

63:1,16 89:20

193:25 221:11

250:11

home 79:24,25

90:12

homogeneous 90:23

hope 71:3 132:10

201:13 287:16,18

hoping 144:23

Horizontal 113:1

host 206:3

hour 36:8 131:1

133:9,10 192:24

259:3 265:20

hours 23:17 208:8

208:10 266:25

292:1

household 84:25

113:12

human 148:11

hundred 14:13,25

14:25 17:18 24:24

32:9 74:22,23 75:1

83:9,10 84:8

103:19,19,21,25

104:1,6,7 175:4

188:20 190:23

191:1 192:19

193:17,22 194:1

199:19 214:20

221:6,13 222:8

264:21 266:1

268:8,10 269:1,16

269:19,21 270:3

277:1 290:13,14

290:15,23 291:2,5

291:16 292:10,17

hypothetical 55:5

62:13 129:24

130:9,13 222:8

hypothetically

252:13

I

idea 36:3 102:25

198:13 245:23

274:18

Ideally 154:4

identifiable 28:7

153:6 287:7,7

identification 196:6

197:25 202:17

identified 7:11 73:4

96:16 237:8

240:20 248:22

250:25 257:16

259:16 260:10

261:20

identifier 256:5

identify 64:10 67:8

73:6 97:1 133:11

136:17 148:15

149:16,23 153:9

158:5 162:11,14

173:12 188:21

189:1 195:12

205:4 236:2

241:13,14 246:8

248:25 251:2

261:22

identities 148:20

260:15

identity 149:14

150:10 187:13

261:3

ignorance 66:19,24

ignored 239:10

ignores 238:22

249:15

ill 232:21 233:7

illuminating 275:17

275:19 277:24

278:1

image 139:24

imagination 247:6,8

273:10

imagine 222:7,8

223:10

imbuing 43:5

immediate 126:17

immediately 38:1,4

228:20 232:5

immune 60:8

immunity 60:5,12

60:15 62:16,20

impact 42:16 222:16

imper 289:5

implanting 245:23

implement 250:1

implemented 32:18

177:1

implementer 206:12

implied 57:8,10,14

implies 141:15

imply 212:11

important 57:12

72:4,13 120:17

123:2,4 154:12,13

154:20 170:5

200:21 202:20

206:10 210:17

285:8

imposition 231:10

impression 77:1

impressions 65:11

improbable 147:21

147:22,23

improper 144:10

145:16,20,21

146:9

inability 153:2

inaccurate 148:25

164:12 235:25

237:25

inaction 65:2 134:23

inadequate 245:2

inappropriate

238:25 245:24

inappropriately

31:2

incentive 133:13,14

182:10 284:25

285:1 286:1

inception 173:23

inclined 43:13

include 41:2 80:6,6

80:7 101:21 102:6

115:20,21,23

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[314]

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158:6 198:23

200:16 237:22

243:8 244:14

included 40:20,23

45:4 129:13,16

130:11 134:18

159:5 188:19

includes 101:20,21

102:5 135:21

210:22,24 238:23

283:4

including 40:21

102:6 147:8 197:3

197:4 237:3

265:16 279:25

income 81:6 91:25

92:4 231:12

270:11

incomes 228:9 231:8

incomplete 208:25

210:7 211:1

inconsistent 212:21

incorporate 293:2

incorrect 12:5 26:5

37:3 68:12 236:14

incorrectly 195:19

increase 45:12

268:14

increases 60:6

independent 143:2

indicate 17:2 20:4

129:13 181:21

239:13 245:6

indicated 10:1 28:14

68:20 94:24 120:8

146:17 156:13

160:2 191:9

219:19 220:5

222:14 234:5

235:14 247:3

254:18 275:8

291:19

indicates 235:11

indication 158:8

246:4 264:2

individual 17:1,5,6

19:16 26:15 29:12

35:18,22,25 36:1

40:5 42:14 59:13

85:11,11 87:5

89:15 149:11

153:9 203:6 206:5

220:18,20 225:5

234:24 237:6

245:4 261:20

283:10 290:7,8

individualed 90:1

individually 28:7

individuals 11:6

84:23 85:19 90:4,6

96:18 118:13,20

125:12 149:14

153:10,13,23

154:3,5,9,16

188:19 190:20,25

191:11,20 200:24

206:3,22 224:1

260:15 282:17

290:9

industry 148:3

171:10

infer 57:14 142:17

188:12

inference 58:3

140:24 141:7

142:13 255:2,4,14

256:10,25 257:4

inferences 141:5,13

143:17 172:25

252:19 256:8

258:13

inferiority 7:18 8:2

8:12

inferred 254:19

inflate 145:4

inflating 237:24

influence 68:21

92:20 125:4,16

126:5,8,18 245:8

influenced 60:20

91:8,20

inform 7:23 8:18

11:2,7 67:13 68:1

68:2 108:2 113:3

252:9

information 4:19

9:19,21,24 10:19

13:3 61:16 64:2

71:25 74:25 75:7,9

81:21 82:3 91:24

92:12,14,18,23

93:1 108:4 109:23

122:23 126:16,20

127:14,15 128:7

128:13,15 140:5

141:14 147:15

148:25 149:4

151:15 152:10

153:1 157:25

158:13 161:17

162:16 165:25

166:20 168:14

171:1 173:8

179:21 188:6,16

205:21 207:20

210:5 222:17,18

244:6,6,17 245:2

252:8,9 253:20

257:8 259:18,23

260:5 261:21

273:23 284:8,14

285:7,15 286:12

286:18 287:5

288:24

informed 24:25 28:1

28:4,6,10 159:25

informs 136:9

initial 4:6 188:18

190:16 249:19

initially 18:18 174:4

initiated 9:14 10:10

ink 264:10

innovate 284:25

innovative 285:1

inquire 97:9 98:3

inquiry 224:20

ins 274:1

insent 133:5,7

inserted 195:20

insight 69:5 71:16

72:20 216:7,20

instance 21:24 29:1

98:8 158:11

164:16 175:4

instances 136:17

161:3,12 162:23

institutional 31:25

instructed 4:15

96:19,19 97:9

instruction 88:4

98:10,13,17 262:6

instructions 96:12

98:15 262:6

instructs 96:12

insubstantial 239:24

240:5

intend 288:3,4,7,10

intended 12:2

136:21 216:19,20

intends 59:1,4

intentionally 223:5

interacted 169:11

interaction 148:11

148:12

interactive 155:5

157:12

interest 178:14

interested 65:19,20

65:22 84:3 90:1,5

103:11,12 119:18

120:8,10,12,22

122:20,21 161:18

177:14 201:15

203:8 212:6 216:6

234:25 273:21

279:4,5,7 297:15

interesting 57:2

109:23 155:11

175:23 216:5

225:13

interfere 235:8

interference 177:18

235:11

interferes 235:1,23

International 1:6

2:6

Internet 79:22,25

80:5,8,14,19

126:15 127:6

147:24,25 148:17

148:22 149:12

150:12 156:5,17

156:19,20,21,23

156:25 157:4,10

157:11,17 158:24

175:16 176:1

230:13 233:22

246:23

interpret 55:13

62:20 116:3,6

122:12 139:8

250:16 278:2

283:9

interpretation 17:9

17:17 18:6,11,11

40:6 215:3 257:15

interpretations

200:9

interpreted 39:15

62:17 115:24

116:2 241:17

interprets 37:19

38:10

interrupt 192:1,2

235:4

interrupted 182:2

230:3,18,23

interruption 235:6

interval 17:2

interview 86:22

133:10 209:17

224:16 226:5,6,6

226:11 246:12,21

246:25 290:6

interviewer 19:17

19:19 147:19

148:16 202:15

226:7,9,11,19

interviewers 202:13

209:17

interviewing 74:11

93:9 95:3 96:23

interviews 84:17,18

84:20 93:23

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[315]

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291:12,13

introduce 199:2

200:1 201:7

introduced 160:3

invalid 153:11

154:10,18,19

241:2

invalidate 152:8

invalidates 152:1

153:2

invasion 285:11,12

285:13

invented 237:9

investigate 94:6,7

investigated 159:8

investigation 159:13

investigational 1:19

invoice 262:5

invoke 294:2

involve 184:15

involved 44:3 61:25

76:3 144:21 168:1

168:6 183:19

184:9 186:17,18

195:13 202:3,19

203:1,2,10,18

204:9,14 205:25

206:3 230:1

involving 230:13

275:6

irrespective 31:1

issue 12:14 48:13

51:10,12 57:11

58:6,15 66:15

96:24 119:11

121:24 122:2,3,7

132:23 138:13

189:11 222:10

232:7,8 234:14

238:3 285:6

issues 197:18

is's 162:10

item 128:22

items 144:24 163:8

163:9

I.D 15:1 16:7 22:20

33:10 261:7

J

January 196:20

jcohen2@ftc.gov

3:5

Jeff 134:4,13 136:1

Jeffrey 163:15,25

164:19,24 165:6

jest 135:2

job 42:13 80:8 203:5

John 267:18

Jonathan 3:3 5:13

267:19

journal 13:22 157:8

157:13 159:11

160:9,9,11,12,15

285:5

judgment 10:20

29:23 42:7 192:16

272:8 292:2

judgments 42:20

43:3

juice 55:5 56:24

58:1

July 1:12 2:17 5:1

132:1 296:7

June 220:11

junior 91:14

justice 142:5

K

K 23:4

katrina 166:11,22

keep 110:10 133:4

189:4

kevin 167:7,9

Kevinos 167:17

key 59:13

KIM-CAMPOS

2:18 297:24

kind 128:25 138:1

160:6 166:7

228:24 231:14

245:13 276:7

290:12

kinds 24:17

kiosks 80:9

knew 28:20 82:23

206:25 263:11

276:15

know 5:17,17,19

6:10 10:1,2,3,12

13:1 17:13,14,21

19:18,18 20:7

28:18 30:15 33:16

34:15,18 35:25

38:3 39:2,4 40:1

41:6 47:19 48:10

49:11,13,13 51:5

53:24 56:18 57:3

57:13 60:19 61:23

61:25 62:7,8 64:15

64:18 65:3,4 67:22

67:24 68:2 75:4,5

79:16 80:11,17

83:1,4 84:11,14

86:14,16 87:14

88:1,5,8,21,22

91:17,23 93:15

99:18,23 100:6,21

100:22 105:18

106:17,18 107:8

113:21 114:12

118:21,24 121:9

122:23 127:16,19

127:23 128:14,15

133:9 138:14

140:3,11 141:2,24

142:1,4 145:1,2

147:16,25 151:5

151:10 152:4,15

152:16 153:2,4,7

153:12,16,21

154:1,2,3,8,13,15

155:21 156:8,19

158:16 163:7

164:17 165:15

168:21,25 169:2

169:14 171:3,23

172:4,5 174:1,2,2

174:6,11 175:3,16

176:14,14,17,19

176:23 177:1

178:17,22 179:22

180:2,19,24

181:11 182:9,22

183:11 184:1

186:10,15 190:10

190:12 196:3

199:3,3,10,12,18

199:22 200:20

201:20,21 202:1

204:13 205:11

206:7,23,25 207:2

207:19 209:23

210:11 212:8

219:2,2,16,17

220:23 222:14,18

222:23 224:7

225:4,9,25 226:18

227:2,8,20 228:2

228:11,18,21,25

229:6 230:2,7,7,9

232:6,16,25 233:2

233:3 236:17,18

236:20,21 240:2,4

240:10 243:3,4,15

243:23 244:7

245:8,15,17,20,22

246:15 247:5

248:10 250:7

251:1 252:3,10

253:2,16,16 254:2

254:9 255:5,6,7,24

255:25 256:2,13

256:14 257:13

258:13 259:21

260:2,2,19 261:5,5

261:9,15 262:4,7

263:18,25 264:11

264:17,25 268:7

268:22 269:5,9

272:18 273:16

274:15 276:12,18

277:7,11,12 278:2

278:18,21 279:1,2

281:4 283:14

285:12,23 286:6

288:5,22,23

291:25 292:2

knowing 82:8

152:17,19 234:7

238:19

knowingly 62:4

223:12

knowledge 56:7

85:4 89:14 136:9

169:21,24 171:17

190:9 193:5 228:6

247:14,17 259:13

264:14

knowledgeable

188:22 190:20

191:2,14,21

195:15 201:10

202:5,22 205:5,14

known 61:5 78:16

135:11 263:14,15

264:8

knows 40:21 62:21

86:19 182:13

203:3

know's 222:13

L

label 138:22,25

141:14 142:9

208:21,22 244:8

labeled 37:18 39:5

65:18 66:4,11 67:2

119:16 121:20

122:18 123:9

124:9 140:8

141:11 208:18

241:24 242:5,6,8

243:1

labels 119:7

labor 115:3

lack 66:19,24

143:23 145:16,21

146:2,10 225:5

244:3

lacks 144:3,4,7,9,12

144:15,18 145:9

146:15 256:4

lame 215:24

land 33:17 78:5,7

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[316]

79:19 80:12,20,22

81:5,6 216:4 279:9

landfill 129:23

242:11 264:9

landfills 216:13

278:9,14,15 280:1

language 52:3

141:20 148:13

278:17,18,23

279:6

large 7:16,16 19:23

66:18 101:1 200:7

226:14 271:13

largely 12:11 85:3

171:9 186:10

218:5 234:1

288:16 289:4

larger 33:8 79:2

87:15 165:9 183:8

185:3 198:17

218:9 219:4

250:19 291:10,22

lasted 75:14

late 41:19 184:25

194:9,16 207:21

220:11 239:19

293:7

launched 174:5

law 59:20 60:1

laws 94:8,15,15

257:13

lawyer 59:17

lead 87:6 88:25

172:23 223:13

245:16

leading 12:15 70:4,7

70:10,20 73:10,13

73:23,24 77:23

245:10 246:2

learn 71:10 224:12

261:8 286:22

293:17

learned 219:23

288:14 292:24

leave 19:24

lect 30:7

left 15:7 19:23 36:20

115:3 271:8,16

290:2 291:2

left-hand 19:7

legal 59:10,10 134:6

134:9 253:9 254:4

254:9

legally 220:25

lend 114:7

length 75:1 81:14

132:24 142:17

lengthened 71:14

Leo 51:4

lerman 166:11

lesser 80:13

lesson 197:11

letter 166:22 194:20

266:7,9

let's 5:24 10:6 13:24

14:1,2 21:2,17

22:20 25:22 26:19

33:7 36:14,20 47:3

48:20 50:20 53:11

57:1 60:3,3 62:13

62:14 68:10 74:7

83:7 98:7 100:8

112:25 128:18,21

129:21 130:16

133:21 142:7

152:3 164:4

166:10 167:7

169:25 177:2,4

181:19 184:14

186:23 205:17

206:16 212:9,23

213:1 214:9,15

221:6 222:25

223:1 239:24

240:19,24 242:3,3

251:7 253:21

254:12,22 256:1

261:17 265:8

270:15 272:12,22

274:19 275:22

279:23 284:6

289:11,13

level 89:14 95:6

levels 92:5

lewd 24:1

liability 222:11

223:6,15

lick 205:13

life 269:4

light 31:14

limited 80:8 273:9

Limiting 90:18

limits 270:15

line 27:16 43:7,11

43:21 44:6 79:19

80:12,20,22 81:5,6

83:15,19 127:14

155:25 156:3,7,9

156:14 162:5,18

163:20 166:19

177:17 186:24

226:12,19

lines 7:5 27:11 78:5

78:7 170:1 229:14

link 228:10

links 7:6

lip 128:16

list 116:18 134:18

151:2 158:6

186:25 187:3,4,5

188:9,18 189:12

190:5,15,16,19,19

190:22,24 191:13

191:16 192:4,8,13

192:19 193:6,16

193:17,18 194:3,8

194:8 196:15

198:8,15,16,22

199:4,11,20,20,22

199:24 200:4

201:21 205:12

220:7 241:3

258:25 259:5

261:2 290:18,20

listed 78:12,19 79:5

158:21,22 164:21

191:12 280:14

listens 95:18

lists 193:3 259:9,16

261:18

literature 136:5,9

166:25 167:2

228:21,22 235:10

235:16,20

litigation 9:2,14

10:10 32:6,8

136:24 183:15,16

265:18 268:17,19

268:20,21 269:7,8

270:7,11

little 7:21 11:3,7

14:23 22:21 41:7

79:16 84:14

145:24 160:23

166:6 191:15

193:23 194:21

208:3 220:21

235:16 240:10,14

240:15 281:17,25

282:23,25 284:1

live 147:19 226:7,8

226:11,19 227:3

living 90:11 95:8

291:24

load 273:5,15,20

274:17

loads 275:6

local 155:6

locate 158:2 162:16

164:8 166:11

167:8

logic 88:23,25 183:1

logical 130:21

258:11

logo 65:11 77:7

137:13,23 138:5,8

138:18 141:14

logos 77:12

long 14:19 34:15

37:18 39:6 47:1

71:18,19 75:14

79:7 127:5 142:23

142:25 145:5

153:8 160:23

164:2,5 241:24

242:5,7,9,11 244:9

293:4

longer 79:16 132:20

133:1,6,8 151:22

282:8,8,8,13,13,13

283:4,11,13,20,21

284:3 293:9

look 6:4,19,21 14:4

14:7 15:7 19:6

26:19 48:20 68:10

70:1 79:12 83:7

97:16 105:2 109:1

112:25 118:21

129:21 130:16

138:16 142:2

158:17 159:1

184:14,17 203:15

209:11 210:11,15

210:16 212:23

213:1 214:9,15

239:13 275:22

279:23

looked 96:24 99:22

107:5 159:23

163:10 285:5

looking 52:1 90:8

166:8 191:13

206:14 210:10

236:18 243:7

268:4

looks 6:14 7:8,9

210:7,25

Los 1:15 2:15 3:8

5:1 132:1 296:4

lost 100:6 240:25

256:12 272:12

lot 10:12 40:15

41:20,20 66:23

136:22 141:23

148:18 158:7

176:16 183:25

204:23 218:25

223:17,17 224:18

lots 191:18,18

Lou 52:21 186:10

low 44:14,17 45:22

46:2,5

lower 19:7 170:8

200:10

lows 45:15

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[317]

loyal 31:22,25

ludicrous 15:16

16:15 20:18 21:8

22:10 23:5,18,25

24:2,7,15,20 25:10

25:17,19,20,23

27:12,14 28:12,16

29:3,4,18,25 30:2

30:5,19,20 31:3,12

32:22

lunch 130:21 132:11

132:12

luncheon 131:2

Lynn 174:1

M

M 49:22 143:3 155:4

208:19

machine 297:11

magnets 9:5,10 10:7

main 291:23 292:14

maintain 13:25 62:3

198:22 260:3

maintained 149:12

150:12

maintaining 273:7

major 198:22

222:18

majority 90:2,6

91:22 180:11,16

180:20

maker 203:11 206:2

makeup 101:16,24

making 11:10 12:13

13:19 29:22 43:16

65:5 90:13 93:4

94:4 141:8 150:21

183:10 212:6

217:20 223:25

237:19 247:22

248:5,7 249:18

256:19 276:4

296:10

male 147:5

mall 226:5,9

man 149:7 150:3

166:22

manage 262:24

manageable 239:19

manner 30:6 60:24

manufacture 49:16

204:10

manufactured 50:6

279:24

manufacturer 73:5

73:6 85:2 195:14

196:17 202:4

212:4,5 222:4

284:21

manufacturering

201:11

manufacturers

184:20 186:1,5,7

186:20 196:11

198:7 199:1

203:16 207:13

208:19 211:24

258:23 259:19

261:4,19,23,24

289:20 291:17

manufacturing 49:1

195:15 202:5,20

202:22,25 203:20

204:1,16 205:14

mapping 105:20

March 79:14

marginally 271:10

mark 5:24,25 13:24

14:1,3,22 50:1,7

50:20 74:7,7,7

161:4 162:25

163:3 164:4

240:19,24 270:15

289:14

marked 6:2 33:7

48:21 49:24

112:25 208:12

209:21

market 134:15

136:6 157:13

159:18,21 162:19

166:1 168:1,6,7,8

168:12,13,18

169:6,7 246:15

247:4,5

marketed 9:11 55:6

56:10 60:4

marketer 13:16

58:17,19 59:1,4,5

59:6 61:4,5,11

62:4,10,14,18,21

63:1,4,7 64:13,20

64:20 65:3,6

133:25 134:23

135:4,23 137:25

222:4 223:4,10,12

243:17 284:21

marketers 11:10

55:8,9 61:19,22

62:1 63:13,14,16

63:24 222:9,12,15

223:2 245:15

marketing 10:8

13:22 48:14 55:13

56:6,9,13,15 57:22

58:10 59:20 60:1

60:23 61:22 69:8

69:14 72:8,17,24

73:2 127:18 157:9

157:21,22 160:15

160:16 166:19

169:15 200:9

203:14 263:23

274:16 285:5

marketplace 62:2

63:1 168:15

284:20,21,25

285:10 286:2

markets 61:12

master 49:22 50:6

51:15 53:17

match 103:16

257:10 260:11

material 46:13

68:21 71:14,14

120:18,19 122:13

122:23 127:5,6,20

128:18 129:15

134:1,24 153:23

154:2 163:17,19

165:10 195:18

222:5 224:1 243:9

274:16 277:17

materially 195:19

materials 37:25

38:3 68:19 69:1

119:24 120:16,23

123:1 127:18

195:14 202:3,19

203:19 204:10,15

205:15 210:18

214:10 289:3

mates 133:10

matter 1:4 2:4

132:12 172:7,9,10

175:21 179:23

190:7 194:14

232:9 266:17

mayor 31:22,25

ma'am 63:19 104:20

110:16 111:8

172:2 185:7,11

208:18 220:16

mean 10:21 13:14

17:24 19:15 20:12

24:16 25:17,18

30:10 32:5,6 34:7

35:17 37:1,5,8,20

38:10,20,22 39:1

39:11,17 41:18

42:3 44:8,15 45:11

45:12,19 46:8,16

46:17 54:25 55:14

58:23,23,24,25

62:8,8,20 64:12,22

68:18 73:7 79:24

80:25 83:19 84:18

88:23 91:16 94:15

100:4,5 105:5

107:16 110:15

122:8,9,15 128:14

128:22,24 130:21

133:7 135:12,16

137:22 139:8

144:19 145:16,19

145:21 146:10

149:8,9,18 150:16

154:1 156:19,20

158:9,9 167:25

173:20 218:14

220:13 221:25

223:9,21 227:12

229:20 233:1

236:13,16 240:3

243:13,13,14,15

243:18 246:18,19

246:24 250:25

254:3,4,22 255:22

256:14 257:3,12

257:12,12 258:11

273:15 277:8,13

277:25 278:2,5

284:13 288:21,23

290:3,16 291:11

291:18

meaning 43:5 44:10

227:16 253:18

276:19 278:12

279:15

meaningful 24:7

42:25 74:4 159:14

178:13 179:21,23

meanings 122:11

means 13:7 47:15,23

48:5 58:9 60:12

89:6 95:18 108:20

110:14 124:19,24

125:1,8,13 126:10

128:11,20 129:5,6

140:11 189:16

210:12,13 215:20

223:12 235:24

253:23 257:9

276:10 283:20

290:4

meant 17:8 28:14

35:22 36:23 40:5

43:17 55:25 88:15

109:9 127:1 255:3

255:6 273:20

276:12,16

measure 254:14,15

254:25

measured 110:4,25

111:15 112:10

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[318]

measuring 163:4,5

mechanism 50:5

media 125:21 126:1

157:12 163:5,11

171:9 222:22

medical 11:11,20

medicinal 9:5 10:7

medicinally 9:11

medicine 11:15

meet 153:10,13

219:21

memory 142:5

men 147:9,17 148:8

148:14

mention 53:22

184:20 234:14

mentioned 49:3

103:3 124:17

158:1,15 159:1

160:9,11 162:4,13

186:8 194:22

196:12 197:3,4

234:12 259:4

279:11 281:16

282:24

mere 151:25

merely 30:12 179:24

185:21 227:16

mess 251:1

message 57:13

278:2

messy 41:15

met 198:4

method 227:9

methodologically

146:3

methodologies

173:23

methodology 144:10

144:12,15,18

145:7,13,15 146:5

146:9,14 156:21

160:25 238:3

methods 246:20

metric 246:22

microbiologist

286:4

middle 7:14 15:12

27:17 38:22 84:21

186:24 194:9

215:5 271:9

mike 49:9

million 46:13,14

221:7,13,16

264:24 265:3

269:10

mind 17:14,21 70:24

142:20 149:20

157:14,24 185:12

minds 17:10 71:3

86:6 87:22

mine 62:15 101:15

mini 138:16

minimum 102:22

103:4 112:12

248:22

minor 222:9 235:23

minorities 101:22

102:6,10

minority 55:12

60:11,14 62:19

221:1

minus 7:10,10

minute 76:4,16 77:4

77:13 180:3

197:10 252:6

minutes 23:17 24:5

24:16 75:2,19,19

76:1 179:11

254:16

mischaracterize

132:17 173:21

misheard 185:11

misleading 61:23

245:18,19,20

misleads 170:6

misled 13:2,6 55:3

57:15

misreports 238:7

misrepresentation

249:16

missed 211:16

misspoke 106:3

111:10

misspoken 16:10

195:19

misunderstand

223:11

misunderstanding

198:10,12 283:5

misunderstood 64:5

misuses 238:7

mixing 255:19

mixture 255:24

mm-hmm 68:13

83:14 163:16

209:14 256:21

267:5 275:25

mobile 79:3 80:6

models 157:10

modest 161:14

modification 51:22

modifications

183:10

modify 78:21

moment 19:22

25:22 47:3 62:14

99:10 100:11

135:19 157:15

162:12 233:15

254:12 265:13

momentarily 116:16

monetary 133:13

monetize 168:8

money 177:5

monitor 94:25

247:11

monitored 93:23

month 19:13 41:5

79:2,9,13,17 85:17

86:2 87:13 194:9

289:24

months 15:5,13 16:3

16:5,12 17:3,8,15

17:23 18:4,7,19

24:9 216:3,13

278:6 279:18

280:24 281:8

morning 5:11,12

224:11

motherer 61:2

motivated 235:1

motivator 227:3

motive 227:9

mount 31:22

move 172:2 232:22

233:14,15

multiple 117:18,19

188:19 205:25

231:18 240:16

268:5 276:4,7

multiply 246:3

multi-dimensional

278:4

N

N 3:1 4:1 296:21

Nactions 222:4

name 5:13 33:15

52:24 53:22 54:5,6

54:9 162:24

186:16,17 195:12

261:20 264:8,11

296:14 297:18

names 189:7 191:20

192:9,14 196:15

205:3 260:12

nano 25:18

nanosecond 24:15

31:3

nature 62:25 97:16

109:16 178:18

231:6 235:22

253:17 283:5

near 119:20

necessarily 24:10

42:6 62:24 146:10

171:23 182:20

183:2 198:23

269:22

necessary 11:24

48:12 78:21 79:4

82:15,16 103:8,9

120:20 133:10

136:10 142:19

176:7 183:10

204:24 220:25

222:1 234:10,15

259:24 289:8

291:15 292:18

need 5:18 9:25 10:1

10:2,3,12,21 22:1

35:9 36:8 41:2

56:18 57:2 60:19

60:19 61:8 72:10

82:4,10 117:15,17

130:20 133:12

136:22,24 139:15

143:7 146:25

153:12,16,21

154:2 160:12

172:24 182:21

220:2 222:13,14

224:22 225:15,18

226:20 241:7

265:4 279:5 283:3

288:25

needed 57:21 173:8

needs 64:24 206:9,9

negative 31:14,20

220:22

negatively 225:11

neglected 81:13

negligent 136:3

257:24

neighborhood 179:4

neither 25:5,5

211:18 297:14

net 77:1 231:24

nettites 148:1

neutral 207:1,11

never 46:16 61:12

154:5 182:22

217:4 293:21

new 166:5 192:19

285:1 288:12,18

nice 130:19 132:11

263:3 285:3

nine 16:8,11 18:25

19:8 20:15 21:2

22:21 84:8 167:7

170:1 203:15

216:3,12 278:6

279:17

non 73:4 81:5 234:8

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[319]

239:12 249:4

nonresponsive

42:10 172:2

nonsense 178:12

nonspecific 17:5

nope 88:10 232:14

north 62:15

note 7:4 45:3 93:22

163:15 166:10

241:3

noted 170:2

notes 7:6

notice 1:19 2:17

263:2

notion 185:19

Notwithstanding

111:23

number 5:16 6:20

15:8 17:15 19:2

21:2 22:20 25:2

45:5 50:14 56:21

58:4 64:23 80:13

83:17 84:7,22

125:22 128:18

153:9,12,23 154:8

159:19 172:22

174:3,7,17,24

178:19 184:5

192:11 193:24,25

208:24 225:12

226:15 233:20

239:23 242:13

250:4,7,11,13,15

251:11 252:7,15

252:17 254:25

255:9,24 256:7,15

256:15,22 257:2

260:10 261:6

264:15 268:5,13

268:23 269:22,23

274:8 276:23

277:21 282:18

290:13,16,17,19

291:1 292:7

numbers 7:17 44:14

44:17,23 45:10

79:3 80:17 94:2

251:10,15,19,21

254:21,22 255:10

255:11,13 256:9

256:14,22,23

257:5,15 271:21

290:11 292:4

numeric 18:20,21

29:11 46:18,19

181:9 249:4,5,6,21

250:6 283:10,17

numerically 271:21

nutritional 55:11

56:1 285:6

nuts 33:14,25

NW 3:3

O

oath 297:9

objection 8:3 9:17

11:16,16 12:9 13:8

13:20 17:25 18:9

24:21 25:14 26:12

27:7 28:3 29:5

31:15 32:23 34:4

34:10,20 35:7,15

37:11 38:5 39:21

42:1 43:12 44:16

45:17 46:6 48:7,16

49:12 51:3,8 52:5

53:5 54:8,15,22

55:17 56:4,17

58:12,21 59:8,8

60:17 61:7,14 62:6

62:23 63:11 64:7

65:12 66:13 67:3

67:11,21 69:16

70:6,12 72:9,25

75:17 76:8,22

77:16,24 78:23

80:24 81:23 86:9

87:3,24 88:19

89:11 90:20 94:13

96:1,10 101:9

110:9 111:6 112:2

112:14,22 119:12

121:4,25 124:11

124:20 125:20

126:12 127:22

128:6 129:7 130:7

132:22 140:20

143:21 145:18

151:13,24 152:21

153:15,25 156:18

159:7 161:5

167:23 169:4

171:13,15 180:14

189:20 190:2,8

191:4 205:10

218:12,22 219:9

221:3 229:23

240:1 279:20

284:16 287:1

objections 234:9

objective 145:20,25

146:6

objectivit 144:7

objectivity 143:24

144:3,4,9,12,15,18

145:9,12,17,22

146:2,10,15

obligation 124:3

129:25 188:2,7

260:3

obligations 187:23

188:3

oblige 193:7

observation 95:16

96:3,6,9 97:9 98:1

obtain 78:22 83:9

128:15 211:5

271:12 292:22

obtained 78:13,19

122:12 161:15

188:10,11,13

271:11

obtaining 119:20

127:14

obviously 13:24

141:3 147:1

180:23 255:9

279:3 280:3

occasion 89:23

occur 34:12,16,19

212:12 220:14,18

220:19 223:23

224:2 231:19

240:23 258:4,6

285:11

occurred 86:15

130:6

occurrence 258:12

occurring 8:14

occurs 258:8,8

offer 11:6,6 92:10

107:25 114:6

224:17 225:7

285:2 288:10

offered 29:12 230:6

288:19

offering 28:15 66:9

66:25 67:4 92:8

95:12 98:25

102:13 107:23

114:4,21 115:16

171:19 212:9,16

215:22 216:10,24

249:8 250:8,18

offers 48:23 274:8

285:24

office 155:7 293:20

293:23

offices 291:24

oh 6:19 20:6 33:13

38:4 39:5 49:7,11

49:14 50:21 52:9

91:6 138:17

140:12 141:13

156:10 181:1

266:19

okay 6:25 7:3 36:6

44:10 56:12 57:1

110:23 111:11,20

139:25 142:12

165:8 184:18

189:10 192:2,3

193:10 196:21

225:19 229:9,11

233:14 240:12

241:16,24 256:24

259:11 272:22

280:19 290:25

old 147:5 150:15,18

152:5,11,12,20

153:6 156:11

older 79:3 85:1 90:4

90:17,19 99:21

100:2,24 101:8,17

101:21 102:17

103:22 104:16,16

105:23 106:2,5,7

106:15 107:2,9

108:5,18,21 110:6

110:8,19 111:1,5

111:17,22 112:11

112:13 113:20

114:11,25 115:9

once 88:17 117:23

ones 30:20 67:7 90:7

157:24 162:13

174:12 194:3,5

240:23 257:1,2

online 126:24

159:17,20

open 28:25 90:9

121:1

operate 94:17,21

operates 150:23

operating 94:16,20

opine 12:7,11 67:23

67:25

opinion 11:6 24:14

59:10,11 66:9,17

66:21 68:3 92:8,10

95:12 98:25 99:2

102:13 107:23,25

114:4,7,21 115:16

136:9 146:22

160:6 161:25

171:19 172:5,12

172:12,15 215:22

216:10,24 225:7

230:7 238:20,20

244:18 250:8,18

250:20 276:9

opinions 53:14

66:25 67:4,6,13,16

67:19 68:5 108:8

159:5 171:23,24

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[320]

212:16 224:17

241:19 249:8,11

249:12 272:6

286:7 288:10,12

288:13,16,18

289:1,9

opportunity 160:24

opposed 8:15 38:21

44:9

optimal 103:5

118:15

option 176:21 177:3

options 293:12

oranges 255:19

order 78:19 79:3

139:16 153:13

173:8 176:7

178:13 206:6

234:24 247:13,16

266:24 291:16

292:12,13 296:11

organization 188:22

189:1 196:2

203:19 205:4

206:10 207:5

210:19

organizations

116:19 127:9

158:12 195:13

196:6 198:1

200:25 211:12

212:3,19

organized 32:17

240:4

original 6:6,8,11

193:18 259:17

272:15 276:5

ostensibly 72:23

Oswald 167:9

ought 167:8 246:3

outcome 88:1

outcomes 7:20

outside 49:10

162:21

outstanding 267:6

overall 100:16

109:19 170:8

179:16 255:11,12

256:8 257:5

276:25

overheard 264:5

overrepresented

110:20

overrepresents

117:4

owed 266:20

ownius 284:9

o0o 295:1,14

P

P 3:1,1 19:2,15,22

20:1,9,10 49:23

208:19 213:2,3

package 33:14

37:18 39:5 241:24

242:3,4,8

packaging 85:22

203:21 204:16

210:19

packing 33:25 34:2

36:22 37:9 47:4,18

page 4:2 6:17,19

7:13 16:9 19:1

22:1,23 23:14,19

27:17 48:22 51:15

84:21 130:17

133:22 146:24,24

147:4 163:14

166:10 167:7

169:25 184:14

186:23 195:9,11

209:11,13,15,15

210:11 214:16

271:8,15 280:15

280:17 281:12

284:6

pages 14:25

paid 207:16 208:5

262:1 263:10,17

264:18 265:20

266:18 269:3,13

pair 120:10 170:22

panel 175:16

panels 149:13

150:13 156:21

paper 20:1 141:4

157:3,6,8 159:12

161:1 162:10

236:19 242:4,5

272:20 285:4

papers 136:8 157:6

157:11,12 160:24

162:6

paperwork 203:5

paragraph 7:15

26:20 27:17

133:22 146:23

271:17 284:7

paraphrase 170:15

170:18 273:12

paraphrased 141:19

paraphrases 175:12

paraphrasing 85:17

120:9 170:17

parentheses 19:2,15

parents 90:13

parhangelsky@e...

3:13

parse 152:12

parsing 202:24

part 12:2,10 17:4

24:10 45:4 50:13

52:11 55:14 60:14

65:24 87:15 97:11

97:14 103:3

139:15 155:7

160:19 174:17

188:4 205:2 219:4

219:22 247:22,22

248:4,7,8,24

250:19 253:7,10

270:23,25 271:1

partial 208:19

participate 28:1,10

83:13,15,16,24

84:1,7,13 86:7

87:23 88:17,24

102:17 149:14

198:6 231:13

235:3 290:8

participated 209:16

260:16 261:23

participates 176:20

participating

148:24 175:15

participation 84:22

particular 7:18 8:2

8:6,12 10:13 12:18

17:2 32:25 33:6

39:16 42:8,17

50:25 52:4 53:24

58:2 86:17,20 87:1

95:1 101:5 109:21

118:10 135:14,18

146:19,21 162:15

184:7 188:15

207:3,10 220:13

223:4 227:6

233:20 249:1

252:14 253:15

256:7 274:23

particularly 13:12

79:1 132:24 145:6

179:21 199:5

225:13 231:7

262:19 275:17

277:24

parties 180:24

297:16

partners 170:6

party 184:12 262:9

262:10,14

pass 293:25

passed 275:9

patently 73:24 74:6

pay 54:17 128:23

176:4,13,14 177:6

177:15,17,23,23

177:25 178:9

247:2

paying 177:5,5

payment 265:25

266:3,12

PD 189:14,19 190:1

PDF 189:15

peanuts 34:2 35:14

36:22 37:9 47:4,19

pellets 49:22,23 50:7

51:15 53:18

penalty 296:8

Pennsylvania 3:3

people 8:15,24

11:23,25 12:3 13:2

13:12,15 26:16

29:8,21 30:12

39:24 43:17 55:1

56:21,23 57:3,12

58:2,5 60:22,23

61:19,20,24 62:2

64:15 65:3 68:17

69:5,19 70:8 71:5

71:6,7,8 72:14

73:6 77:7 80:7,19

82:8 83:10,12,20

83:23,24 84:1,4,7

84:12,21 85:1,5,5

85:7,14,21,22 86:1

87:10,21 89:20,24

90:9,15,17,18,25

96:14 101:20,21

102:16 103:18,21

103:22,25 104:6,9

104:16 105:7

106:15 107:9

115:3,20,21,23,24

116:18,19 117:5

119:23,24 120:15

120:17,18 122:4

122:15 127:7,13

128:16 129:9

133:5,7,12,12,14

139:7,22 140:12

141:3 142:10,11

143:8 144:25

148:1,3,5,19,24

150:7 154:25

155:3 160:24

166:7 170:9 171:8

175:19,22 176:3

177:13,17 182:8

182:11 185:4

188:22,23 196:3

201:4,10,14 205:3

205:4,13,25 220:7

220:8 223:24

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[321]

225:14,24 226:15

226:24 227:1,4,7

227:19,25 228:1,7

228:8,17,19,25

229:1,2,16 230:10

230:19 231:2,3,7,8

231:8,13 232:3,4

233:22 234:7,16

241:18,19,23

243:2,4 244:5,7,8

245:6,15 247:21

250:9 253:18,22

254:13,20,23,24

255:1,2 256:1

263:13,15,18

276:8,17 277:11

277:13,15 278:1,5

279:4 281:5,22

282:11,18 283:7

283:20 284:23

290:11 291:9,23

293:17,19,22

peoples 65:20

103:12 119:19

122:21 137:12

233:19 245:23

people's 99:7

peoplit 175:20

perceive 120:15

perceived 228:4

percent 40:25 41:4,6

41:7 79:20,23 80:4

96:15 99:17,20

100:15,20 104:13

105:24 106:5,12

107:1 113:15

115:7 116:10

156:4,8,13 180:17

180:18,19 181:18

181:20,21 200:15

200:18 215:16,24

220:6 221:16,22

237:2,23 239:9

248:20 252:16,18

254:23 255:1

270:9,14 273:5,15

273:20 274:17

275:6 280:4 282:1

283:2 284:2,4

291:20 292:9,10

292:17

percentage 41:9

79:18,21 80:2,10

91:18 104:12,15

105:22 106:4,10

106:14 107:8

113:19 114:10,24

115:8 117:6 118:4

156:7 181:13

257:2 270:6,10

276:14

percentages 40:24

80:11 101:11

237:21,24

perception 48:14

121:23 124:5

140:7

perceptions 122:21

126:18 185:3

perfect 82:18,21

154:14

perfectly 16:25 17:4

25:1 35:20 40:3,22

45:22 183:1,2

236:5 278:9

perform 176:5

234:25

performed 143:15

263:15

period 18:7 26:6

79:2,7 133:6,8

156:12 216:17

217:2 235:15

243:2,3 270:1

280:1

periods 7:16

perjury 296:8

permit 242:25

243:12,15

perpetuate 147:11

person 17:21 19:12

31:5 35:19 38:17

39:2 47:3 58:13

117:20,25 148:1

148:16 198:4

202:21 203:2,24

204:4,9 206:17,19

207:4 215:4 226:5

227:3,17 248:3

282:20

personal 7:22 11:4

11:14,20,23

169:20,24 171:17

224:15 228:5,5

personality 144:5

145:14

personally 5:21

85:15 94:5,7

personnel 195:11,22

persons 92:4 95:8

95:19,20 98:22

99:21 101:17,25

102:5 107:20

114:1,18 115:13

117:12,13,14

201:16 202:1,2,18

205:8 214:4,24

246:11,21 261:23

person's 214:11

Peter 186:16

pew 159:23 161:9

162:9 163:7

phenomena 148:7

philosophically 37:6

phone 65:11 83:9,12

126:15 133:6,8

147:24 148:9,19

148:24 192:18

230:16

Photocopy 108:4

phrase 62:19 100:22

120:10 125:7

170:22 278:13

279:17

phrases 30:5

physical 266:15

280:22

physically 95:2

175:7

Ph.D 2:13 4:3 5:4

132:4 295:9 296:6

pick 79:4 120:22

240:13 275:11

picked 275:1,9

picky 105:6

piece 109:23 118:2

126:19 141:3

145:23 165:10

179:21 236:18

242:4 285:3

pieces 191:25

piedable 215:24

pilot 79:16 183:6,7

183:14,19,25

184:6,9,20 186:7

186:20,24 198:7

199:1 201:23

202:9,18 203:16

207:13,16,24

208:1,2,7,9,15

211:24 217:4,7,8

217:13,14,24,25

219:14 220:10

258:24 260:16

261:4,19 289:20

291:17,18 292:12

292:13,15,19,24

293:4,5

pilots 258:21 293:16

place 34:24 95:3

125:23 162:20

189:5 297:7

placed 297:9

places 6:20

placing 257:14

plaining 198:12

Plaintiff 2:14 5:6

plan 288:1

planning 92:10

plastic 19:25 48:25

49:17,19 65:17

66:4,11 67:1 71:18

85:2,6,15,16,17,21

85:24 86:2 87:12

87:13 91:2 119:7

119:16,23 121:20

122:17 123:1,9

124:9 127:18

138:4,8,21,24

140:8 141:10

142:8,25 145:6

195:14 202:4,20

204:1,1,10 210:18

212:4 215:16

216:3,17,22,23

273:2,3,5,6,25

274:1,17 275:23

279:23 285:20

plastics 48:23 121:7

122:13 216:9,12

217:1

plausible 18:6,10

86:25 180:13,21

180:25 181:3,4,9

182:3,4,11,14,18

183:1,2 237:4

238:24

plays 89:14

pleadings 253:9

please 5:18 13:25

14:13 30:23 70:1

111:9 135:8 150:2

168:25 172:3

184:16 193:8

220:17 295:2

plural 17:3 19:17

20:4 186:8

plus 84:8 220:8

250:13 251:10

point 6:17 42:17

57:17,20,21 88:20

92:11 96:5 99:16

99:19 118:3,11

129:11,18 130:1

130:18,21 135:9

135:18 150:21

160:7,25 168:20

172:14 186:6

189:24 193:8

196:12 201:19

230:10 243:18

254:5,6 255:11,14

273:3 287:7 293:8

pointed 171:22

172:16 255:8,9

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[322]

pointing 109:24

136:7

points 57:5 276:8

policies 8:1,11 12:7

policy 7:23,25 8:15

8:18 9:15 10:11,17

10:18 11:3,7 12:13

12:16 13:18,22

157:9 160:15

285:5 286:20

287:12,23

polymer 286:4

pool 154:16

poor 7:22 8:18 9:15

10:11,17,18 11:2

55:10 56:1,7 60:10

poorly 32:17,18,18

240:4,4 251:2

262:25

pop 177:18

popped 264:1

population 7:17

58:19 63:8 80:10

82:18,22,23,25

83:1 85:20 99:17

99:21,25 100:5,10

100:16,20,24,25

101:6,16,24

103:16 104:15

105:6,21,24 106:6

106:14,24 107:1,5

107:9 110:5,6,25

111:3,16,17,22,25

112:10,11,17

118:5 127:21

154:10 232:11,15

232:16,21,22,24

233:1,3,5,7,9,12

233:18 236:10

277:1 279:16

portion 95:24 96:5

127:21,23 129:15

130:3 200:20

227:7,19 229:2,15

230:19 272:2

290:5 291:22

portrayal 31:11,13

position 13:4 62:3

140:24 253:25

284:13 286:10,11

positively 225:11

possess 97:21,22

187:21

possession 92:17

possibilities 225:2

possibility 150:19

150:21 151:25

224:25 257:19,20

257:22

possible 6:16 17:19

35:21,23 37:5,7,24

38:2 54:23 55:1

60:18 65:10 69:7

71:24 76:2 86:1,4

86:5,10 87:4,21,25

88:13 89:7,12 91:5

103:6 116:21

117:1,8 147:4,21

149:7,8 150:15,16

150:17 152:25

158:16 175:22

189:22 211:5

251:3 257:23,24

259:18,22 264:7

291:4 292:22,25

possibly 32:24 58:24

58:24 240:8 255:6

post 164:8,18 165:1

165:10,13 171:4,7

171:8

potential 47:13

132:18 175:8

176:20 177:2

183:16 199:1,25

200:2 201:7

225:22 265:13

273:8

potentially 16:3

28:11 31:18 91:20

260:22

practice 93:22

practices 166:21

practicing 166:7,9

practitioners 163:21

163:22

precise 239:5

precisely 11:25

153:12 224:15

predecessors 264:16

264:19

preexisting 58:18

prefer 178:3

preferred 291:20

premise 236:11

245:17

preparation 50:11

51:20 143:12

prepare 267:10

prepared 32:10,20

50:24 51:5,7

113:23 114:14

115:10 268:18,24

preparing 105:1,11

106:21 107:14

preschedule 133:11

prescheduled

133:16

prescreened 205:3,8

205:12

prescription 286:20

presence 60:6

233:20 266:16

present 3:14 35:11

64:2,12 95:3

123:15 127:7

134:1 182:9

197:21 235:17

presentation 158:3

237:25

presentations 158:2

158:7,15

presented 141:21

158:11 175:8

276:2 280:4

presenting 165:25

presently 92:17

president 52:15,25

263:13,17

press 159:17

presumely 189:15

pretend 148:6 150:6

150:7

pretending 147:6,9

147:13,17 148:8

148:14 149:7

150:3

pretty 31:3 32:16

41:15 148:20

159:25 161:11

163:8 195:17

228:14 249:13

267:14

prevented 201:24

preventing 176:1

previously 132:5

pre-existing 10:6,9

57:25 59:6 63:7

64:5 139:16

price 174:16 175:18

pricing 174:18,20

174:22

primary 79:15

120:6 121:23

233:23 272:25

principal 274:9

principals 239:4

240:20

principle 239:6

principles 239:6

printed 7:4,8 113:5

printer 6:24 7:8

prior 28:1,10 32:10

32:20 50:16

124:25 125:2,12

125:18,23 126:1,5

126:10,11,16,19

128:4 132:17

183:3,20 184:7,10

217:19 218:8

250:22 271:19

272:2,9 297:9

privacy 148:3,5

privilege 218:13

privy 253:8 254:3

prix 130:3

probability 94:9,15

94:16 150:2 181:6

257:13

probably 17:24 18:2

18:18 19:17 21:20

22:7 24:24 32:4,9

50:18 75:8,12 80:4

81:12 91:16 117:8

128:2 142:21

156:3 158:23

162:20 170:21,22

178:18 190:17,18

190:18,20 193:23

194:11,12 208:22

211:14 226:8

258:20 264:23

266:23 267:9,24

268:2,2,7,7,12,22

269:1,16,18,18,19

270:5,9,13 282:19

282:21

probative 119:10

151:23

probe 20:9,11,12,16

98:14

probing 98:13,17

224:13

problem 31:4,6

44:11 57:23 128:2

132:18 150:8

152:14 195:21

209:10 232:25

233:12 238:5

240:5,11,14,15

244:2,11 248:21

248:22 250:25

problematic 140:25

233:10 248:19

problems 240:16

244:1,25 246:17

246:18 250:20

procedures 94:25

246:12,22 247:3

proceed 219:3

proceedings 297:6,8

297:10

process 34:12,15,19

37:21,22 38:11,12

40:1 49:1 93:16

129:12,19 130:1

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[323]

195:16 201:11

202:5,22 248:8

283:6,6

processes 205:15

produce 79:2

158:17 159:2

209:9 259:5

261:15

produced 7:2 50:3

97:18 113:6 117:2

137:25 164:12

187:5,21 208:17

209:8 211:6,17

260:9 261:1,2,22

271:4 289:3

produces 235:25

product 33:16 48:13

48:14,18,23 49:6

49:15,21 50:14

52:9,20 53:4,9,13

53:17,20,22 54:5,6

55:8,9,9,14 56:10

56:15 60:14,21

61:12 66:11 67:2

71:13,13 76:17

85:2,15 87:12

141:14 142:18,22

143:3 166:9 197:8

199:13 203:21

204:16 215:6

221:12,18 242:25

280:24 281:7

282:5 284:18,19

284:20,22,24

285:25 286:1,21

286:23,23,24

production 193:6,7

201:11 210:19

259:10

productions 71:12

77:11 212:4

282:13

products 33:15

48:25 50:6 55:7,7

60:25 68:20 70:3

70:17 71:1 72:7

85:22 138:4,8

141:11 203:21

204:16 212:6

216:23 230:8,9

243:20 273:6,7

275:23 279:23

282:7 283:11

285:1 286:24

287:15

professional 42:8,12

75:15 89:17,19

158:12 171:20

246:15 247:4

270:7 289:2,5

professionals 162:7

162:20 166:7,9,20

professor 6:1 13:24

14:13 23:24 24:12

25:11,24 26:9,21

26:25 29:2,14,23

30:7 77:10 82:20

137:6,15 138:3,20

138:23 141:8,18

141:23 142:7,14

143:4,11,18 144:2

144:4,9,14 145:8

146:14 151:21

152:6 179:2 180:7

181:13 185:7

232:12 233:8,17

234:10 236:4,8,24

237:7,16 239:2,7

240:21,24 241:12

242:20 245:9

246:9,10 247:12

247:16 248:13

249:9,20 250:4

251:8

program 155:5

progress 74:11

259:2 289:19

project 161:10

173:8

projects 265:14

promise 276:8

promises 276:5

promotion 176:16

176:21

promotional 128:22

proper 246:12,21

properly 93:17

232:12,17,18

proportion 118:15

223:20

proposing 285:16

proposition 136:4

prospect 224:23

226:1,2,4,10

prospects 225:22

protect 12:3 148:5

187:10 188:7

protection 148:3

protects 11:25

protest 229:24,25

230:1,5,5,8,15,20

232:3

protocol 93:25

proud 218:11

proven 258:1,2,3

provide 14:2 75:16

113:3 134:9 143:1

151:2,3,5 164:15

187:11,13 188:6

188:15 208:13

210:2 245:3 259:8

259:24 270:16

279:15 289:15

provided 18:21

50:15 58:1 68:7

74:25 108:4

119:21 152:9

162:1 187:4,12

188:17 189:3

190:15,17,20

192:18 193:5

199:19 201:1,3

205:20 218:15,18

218:23 245:7

249:21 250:6

255:12,13 259:6,9

259:19

provider 150:24

providers 151:3,11

159:22

provides 164:11

providing 232:3

283:21

pseudonym 148:2

public 13:22 28:2,5

28:11 157:8

160:15 285:5

publication 159:12

159:21 160:16,17

161:23 162:19

166:19

publications 158:6

166:4 168:8 171:9

publicly 27:22 117:2

117:3 118:2

published 97:5

136:8 157:3,8,13

172:12 285:4,4

publisher 170:7

publishers 171:1

177:16

puced 261:17

pull 126:15

purchase 9:10 56:14

60:21 65:5 85:21

91:4 129:11,19

130:1 195:13

200:19 202:3

203:1 204:10,12

204:13,17,18,21

205:1,7,19,22,25

206:4,12,14,18

207:5 212:5 222:6

purchased 85:6 86:1

87:12 199:13

203:4 206:20

211:9,12,25

purchaser 205:24

purchases 90:12,13

91:20

purchasing 85:15

85:23 91:7 201:12

202:19 203:3,3,11

pure 78:25

purely 172:15

purportly 69:14

purpose 42:15,15

53:11 65:14 66:6,8

69:4 77:8 102:25

120:2 148:4

175:14 181:25

215:25 247:10,23

248:1,10 274:20

277:6

purposes 117:10

165:20,22,24

166:23 167:4

172:8,10 173:16

183:8,9,9 191:17

202:18 290:12

pursuant 1:19 2:17

put 17:14 19:17

25:20 38:24 45:2

70:23 71:3 73:4

100:10 116:21

118:22 130:8

137:23 154:12

170:21 179:23

182:21 242:9,11

243:11 286:6,20

287:21

puts 140:24

putting 101:4

122:22 124:1,2

179:16 197:19,23

P.C 3:10

p.m 2:16 131:4

132:2 294:5

P6400 213:13

Q

qualification 61:13

242:17

qualifications

119:22

qualified 84:18,20

87:11 246:11,21

247:6,7 290:7

qualifier 154:12

243:7

qualifiers 242:1,15

243:4,8 244:3,14

245:7

qualifies 42:19 43:2

qualify 84:17 90:16

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[324]

150:4

quality 167:1 170:8

271:20,22

quantify 150:2,19

150:20 239:16,20

quantum 221:18

queening 85:18

quell 108:2

question 9:19 14:18

15:3,4,11 16:6,8

19:1 20:13 21:3,18

21:18 22:5 29:16

30:24 32:7 37:17

38:14,15,23,25

39:3,5,8,9,10,13

39:14,16 40:2,7

42:10,22 45:1

46:15,20 47:13

58:25 59:24 62:11

67:10,25 69:11,13

69:15 70:1,5,10,10

70:15,21,23 71:9

71:10 72:11 74:4

75:23 82:5,12

83:21 84:4,5,8,13

85:18 86:17 88:3,3

89:4,6,8,13,18

96:14 97:13 98:8,9

99:3,5 100:9 101:2

104:3,4,19 105:4

106:1 107:7

110:17 111:9,14

111:15 112:6

113:11 116:15,23

117:16,17,23

119:11 120:14

121:11,24 122:2

123:25 125:5

127:4 129:23

138:13 139:4,9,10

139:19,20,23,24

140:1,4,14 141:19

142:3,20 145:11

146:16 147:14

154:11 158:14

159:10,15 164:23

165:2,4 169:1

170:17 172:3

175:4 177:5,24

178:7,18 179:14

179:15,24 181:22

182:23 189:4,5

194:2 198:10

203:17,25 204:25

207:12 210:16,23

210:25 211:14,19

212:10,10,17,23

212:23 220:19,21

222:24 224:7

225:10,16 226:16

227:14 229:21,22

231:15 235:19

241:23 242:24

244:10,12 245:13

245:14,19 250:17

250:22 251:4

252:14 263:23

272:22 274:21

275:16,22 277:23

278:24 280:15,23

292:16

questioning 241:6

questionnaire 71:15

85:13 86:21,21

258:23

questions 4:15 5:18

14:9 28:25 39:12

53:12 66:2 68:14

68:15 69:9,12,19

69:22,23 71:13

72:2,23 73:9,10,21

73:22 76:5,7,10

77:22 82:6,7,7,13

82:14 83:22,25

85:13 86:19,24

87:6 88:11 90:14

97:25 98:6 120:1

121:1,15 122:24

123:5,8 124:6,8,14

132:19,25 141:24

143:5 151:23

152:6 155:11

173:9 174:3,5,17

174:24 178:19,21

180:12 181:10

187:16 189:11

193:12 204:5,8

205:18 207:1

210:16 241:1,4,9

241:11,12,14,15

241:16,21 242:15

242:20,22 243:10

244:2,4,21,22,23

245:10 250:10

251:9 280:16

294:2

quick 14:4 161:17

197:11

quickly 40:2 175:21

207:20,24 208:1

225:1 271:13

quicly 207:25

quite 12:12,24 32:24

36:2 53:21 76:2

94:24 145:20

147:4 149:6,8

150:14,16 160:4

161:9 190:17

192:11 207:21

242:12 265:2

274:4,10,11,11

278:1

quota 85:10 102:19

102:19,21 103:18

103:22,25 104:6

104:10

quotas 85:9 102:16

102:23 105:17

106:23 107:17

quotations 172:23

quote 113:16 280:6

quotes 170:21

175:11

quoting 170:19,20

R

R 3:1 38:16

races 7:18 8:2,6,12

rainings 103:15

raise 155:10

raising 166:2 229:23

random 6:15,21

78:11,25 84:15

93:7,10,12,16 94:1

257:9

randomly 198:8

range 75:4,6,16

99:19 102:24,25

118:19 265:1

ranges 91:25

rapidit 68:21

rate 96:8,13,21

115:6 200:14

273:15 291:21

293:13

rates 96:25

ray 9:1

reach 82:2 219:24

reached 85:11

read 7:23 15:5 16:12

19:3 21:5,20 23:2

33:17 47:15 49:1

51:17 63:19,19,20

68:19 72:10,11,11

94:23,23,23 100:3

100:4,4 104:19,20

104:21,21 110:16

110:17,17 111:8,9

111:9 134:1

139:21,23 147:1,6

163:17 170:9

172:3,3,3 184:16

185:7,9,9,14,14

187:1 195:16,18

203:21 208:18

209:18 210:20

212:12 213:3

214:17 215:7

220:16,17,17

226:20,20,20

270:22,23,24

271:1,13,24

272:23 273:10

284:10 294:3

295:2 296:8

reader 170:6

readily 41:12

reading 109:3 181:5

185:12 288:15

reads 14:18 15:5

83:15 282:7

ready 247:22

real 93:24 115:5

148:11,12 182:4

253:20 285:2,17

285:22

really 8:8,22 9:18,22

12:16,24 33:4 41:1

41:1 42:9 53:19

72:18 82:11

104:22 109:16

113:24 114:15

120:19,22 123:4

123:11,12 140:25

141:25 145:11

149:9 156:9 160:7

161:9,18 169:8

170:17 171:17

172:8 179:20,22

180:3 182:13,15

183:5 184:3 197:7

199:8 203:6,7

208:7 209:15

228:23 242:17,17

244:18 245:13

246:22 247:1

248:6,18 252:24

255:7,22 258:13

264:25 273:16

285:20 286:16

287:23

ream 242:5

reason 5:17 14:14

14:17 26:21 54:3,5

86:14 87:5,11

105:25 106:7

107:2 118:24,24

119:4 120:6

122:16 124:1,4

159:9 167:5,6

182:1 187:8 205:6

226:2 227:24

228:17 231:1

232:2 233:23

238:22 241:11

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[325]

242:21 244:10,15

258:3,7 282:24

290:7 293:16

reasonable 16:6,25

17:4,13 24:9 25:3

25:4 35:20 40:23

43:7,22 54:12

55:12 60:11 99:19

103:1,14 107:17

153:1 211:19

215:3 243:5

251:22 255:2,4,14

267:1 270:3,5

278:9

reasonably 180:12

198:16 239:19

reasons 58:14 69:3

84:23 120:5,7

145:21,23 160:21

173:17 205:18

219:16 224:18

225:12,24 232:19

233:24 242:23

244:4,20,23

recall 18:17 40:9

47:6 102:25 105:8

139:1 157:20

163:2,4,13 179:6

186:16 194:7

195:2 196:22

198:2 209:7

254:15 276:19

receive 97:17 98:11

234:22 266:3

received 161:1

192:4 193:19

194:8,22 195:1,3

212:17 237:14

265:23,25 266:12

receiving 173:9

recess 36:11 131:2

193:2 225:19

265:7 289:12

recipient 276:5

recoding 24:5

recognize 113:4,6

180:16

recollect 78:19

123:13 126:3

193:22

recollection 32:25

33:4 36:24 40:19

40:24 41:2 50:19

53:6 57:18 163:6

179:3 183:22

192:15 194:10

208:6 282:3

283:15 290:15

293:6,11

record 36:4,10,12

36:14 59:16,16

75:14 77:20 97:25

98:15 107:6

130:23,24 146:25

174:19 187:14,17

187:18 188:11

189:5 193:1

207:23 249:18

265:6,8 289:11,13

294:4 297:10

recorded 95:16

records 75:12 249:3

recycle 20:1

red 6:10,18,21,22

reduces 60:8 62:20

170:8

reducing 60:13

refer 13:25 30:6

134:4 162:3

190:16 213:19

252:20,21,22

255:5 269:6

referee 166:4

reference 4:6 27:14

27:19 53:23 55:13

57:4 127:20

142:21 143:2

163:11,15 166:11

166:14 167:8,9

171:4

referenced 29:14

63:23 69:20

163:17 167:11

references 30:4

53:16 161:23

173:2

referencing 170:24

referred 49:8

166:16 195:23

274:17

referring 141:25

164:6 170:25

172:21 252:4

refers 213:6,13

refinements 173:22

174:1

refining 183:8

reflect 115:5 172:11

reflected 108:14

243:24

reflecting 166:25

reflects 74:12

225:10 233:7

281:19

refresh 57:17

refuse 83:15

refused 83:13,24,24

84:1,7,13 290:8

regard 70:21 77:13

127:18 188:3

199:25 247:18

regarding 12:7

33:12 45:1 66:10

67:1 91:25 92:4,13

95:8,19 98:22

102:10 114:1,17

115:13 128:5

132:12 141:9

149:2,4 157:3,17

159:6 193:3 197:5

198:1,6 203:19

204:15 205:21

212:16 215:22

216:10,24 244:3

249:9 250:4,9,12

251:24 252:14

266:6 286:12,24

regardless 29:19

54:2 227:9

regions 94:3 95:9

regularly 74:19

154:25 156:21

159:10

regulators 242:25

243:12,14

rehabilitate 179:12

reinterpreting

38:20

reject 161:2 236:11

relate 216:8 285:10

related 112:17

124:6 155:1

160:18 183:15

189:11 193:13

196:5 201:12

234:9 244:25

250:20 265:17

270:8,11,24

relationship 137:12

188:2 263:9

relative 117:6

249:10 285:21

297:15

relatively 79:1

208:3 276:25

relaxed 174:6

relevant 90:8

120:13 123:2

144:25 146:18

159:15 165:19,21

165:23 166:8,22

167:3 173:15

178:24,25 179:7,9

179:13 201:14

220:25

reliable 149:20

155:15 280:11

Reliance 94:19

relied 94:8,10

relies 94:16

reluctant 89:22

147:12 225:24

231:12

rely 50:11 51:19

61:24 92:23 112:1

112:20 118:16

161:15 280:9

relying 135:1 136:3

remain 112:20

118:15

remaining 180:19

291:6 292:23

remains 111:25

remark 33:12

remeber 267:18

remember 52:24

86:3 138:18 163:9

174:16,18,20,21

193:24 219:7,11

remind 220:9

remove 142:21

render 99:2 241:2

296:11

renders 215:15,23

216:2,12,16 217:1

273:6

repair 280:9

repeat 104:3,4,18

227:15

repeating 74:15

189:4

rephrase 105:4

replica 82:18

replicate 271:11,18

replicated 272:3

replicates 69:14

replication 82:22

report 5:22,24 6:3,6

6:8,11 7:1,7,10

23:14 24:3 26:22

27:22 29:3,4 30:16

32:7,11 48:20

50:12,17 51:20

53:17 54:1,7 68:7

74:11,16,17,21

79:11,13 93:22

99:10 105:1,11

106:21 107:14

113:23 114:14

115:10 129:22

133:21 145:11

146:24,25 149:6

150:14 159:6

161:24 162:2,14

163:2,14 165:17

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[326]

172:12 173:2

184:14 186:23

207:18,22,23

208:2 209:11

219:19 234:5,12

238:11,12,14,17

240:25 241:12

249:11,12,17,19

251:5 267:12,13

268:24 269:1

281:21 284:6

288:8,11,17 289:1

289:9,19,22,24

291:6 293:2

reported 31:4 85:14

145:13 236:25

237:16 238:21

Reporter 2:19 297:4

REPORTER'S

297:1

reporting 29:7,21

30:12 238:4,5

reports 24:4 32:3,6

32:21 74:22 209:1

237:21 258:25

259:1 268:18

represent 6:24

78:20 85:25 99:16

104:17 105:7

106:2,16,25

107:10 127:20,24

165:5 181:15

200:17,22,25

214:7 234:6 237:5

237:12 274:11

282:15

representation

14:15 30:1 102:22

103:4,5 105:18,19

202:7 236:22

representative

81:19 82:6,9,11,14

82:17,21 83:4,6

85:20 93:12,13

103:15 110:7

111:4,18,21,24

112:12,16 173:11

195:12 202:15

232:24 233:5,17

233:21,25 234:4,8

234:10,15 236:5,6

236:9,12 237:6

239:12 274:12

275:12 276:7

representatives

155:6 191:16

209:16 211:11

212:2

represented 49:15

108:12,21 110:8

110:19 111:5,19

112:13 118:13,14

118:14 199:21

200:4,22 205:13

215:2 261:18

271:20,22 273:17

274:4,14

representing 36:17

represents 8:5 17:5

105:23 106:5

233:2

repulsion 271:10,23

request 38:15

REQUESTED 4:19

require 22:21 82:6

136:13

required 71:22

requirement 11:19

135:22

requires 135:3

189:6

reran 271:11

reread 267:12

rerun 217:4,9,14

218:1 219:14

res 274:1

research 42:24

75:11 77:8 92:25

93:4,16,23 94:20

94:22 96:22 97:6,7

124:5 136:11,13

136:14,18,23

145:13,23 148:23

149:2 155:11

156:14,14,17,20

157:4,17 159:18

159:22 161:20,22

162:7,19 166:1,19

167:13,14,18,21

168:1,6,7,9,12,13

168:18,18,21

169:2,6,8,12

171:11,21 172:16

172:16 175:15

182:9 188:8

191:23 199:5

200:13,24 202:16

207:3,14 208:23

209:18 225:23

234:3 246:20

247:5,9,24 248:1

248:10 258:17

262:1,16,18

264:10,12 265:15

265:16,16 289:6

292:6 293:15

researched 126:25

researcher 89:10

98:10,18 145:25

230:16 263:22

264:2

researchers 42:19

48:3 83:8 87:17

95:16 96:9,19 97:8

201:2,4 224:12

246:16 263:19

reside 92:13

residence 81:15

resins 273:6,25

resolved 290:3,4,10

290:22

resolving 292:1

resources 228:8

respect 25:23 30:4

41:23 63:9 66:22

74:20 76:20 78:4

82:20 94:21

100:23,25 108:19

109:8 112:16

125:10 141:8

145:5 147:2

160:12 163:24

179:13 211:14

223:3 232:11

233:16 236:23

237:19 239:1

246:10 255:15

257:20 277:3,23

284:12 287:12,23

respectfully 45:25

respects 12:21

185:18

respond 77:21 89:15

178:4 180:3

185:21 189:8

220:24 226:24

227:4 230:4 231:9

250:9,11,13

273:22 275:3,13

276:8 279:4

responded 23:1

29:17 152:6,7

215:4 250:5

respondent 3:10

19:18 24:4 35:10

35:13 86:18,25

88:8,10 142:3

147:4 149:7,16,24

150:3,10,15 175:8

175:10 177:3,19

178:3 210:12,13

224:8,14 244:16

246:3 249:21

261:9,10,12

280:23 282:4

283:25

respondents 14:10

27:25 28:9 31:12

31:13 33:3 47:14

54:3,4 70:24 71:25

74:22,23 75:2,23

76:3 87:17 91:25

92:13 93:5 95:15

98:18 104:12

106:10 113:15

116:1 119:21

125:10 133:18

147:16,20 149:3

150:18 151:20

153:17,22 154:17

170:3 175:4,13

177:19,22 178:6

179:14 180:11

181:8,10,12,22

187:10,13,24

188:8 200:14

203:18 211:9,24

215:20 219:24

220:2 224:17

242:13 246:9

247:12,25 251:23

251:25 252:22

260:4 261:4,16

273:1 276:3,11,15

276:24 280:5

respondent's 224:13

responding 143:1

176:16,21 177:3

179:16 180:6

response 14:5 15:3,4

15:10,11,16,19,21

16:6,8,11,15,18,20

17:1,12,13,22

18:14 19:1 20:17

20:21,23 21:3,8,11

21:13,18 22:5,10

22:13,15 23:5,8,10

24:9,25 25:1,3,24

29:18,18 31:12,13

31:17 32:11 34:9

35:2,20 37:10,13

38:12,18 39:19,23

40:6 41:25 42:9,21

43:4,8,9 44:5,9,12

44:25 45:1 47:4,19

47:20 48:1 72:17

98:16 117:23

137:12 138:1,1

147:12 175:23

178:12,13,15,20

179:1 180:4,25

181:3,5,7 182:4,5

182:12,14 185:8

210:23,24 211:15

214:4,9,11,15,24

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[327]

228:13,15,22

229:1,24,25 230:5

230:15,20 243:5

244:16 245:8

247:13,15 249:21

250:6 251:8,9

252:13 254:24

276:18 279:2

280:25 281:9,10

281:16 282:6,11

291:21 292:22

293:13

responses 17:11

18:20 23:16,20,23

23:25 24:15,17,20

25:16,19 26:21

27:2,4,5,8,13,14

27:18,19 28:2,5,6

28:11,16,24 29:9

29:15,24 30:5,6,8

30:16 32:19,21

33:3 40:11,15,20

40:23,25 41:4,6,7

41:8,10,22,24

42:25 46:17,25

99:7 109:3 118:21

119:20 120:24

144:24 145:2

146:20 180:17,21

181:9,11,12 182:3

200:24 209:3

210:7 212:17,20

217:8,13,25 219:1

225:25 228:2,24

231:4 232:3 237:3

237:3,4,22,23

238:24 239:10

242:2 248:20

249:15 250:4

252:11,15,17

255:22 256:3

272:16 276:20

281:22 282:12,17

283:7,9,15,17

responsibility 63:7

63:13,22,23,24

187:9

responsible 61:2,4

61:20 62:1 63:2,17

64:14,20,21

responsive 43:1

172:6 173:9

rest 119:2 240:11

restricted 174:5

restriction 27:1

29:15 40:10 77:10

restroom 36:8

192:25

result 26:10 86:21

88:11 164:13

235:13,13 280:10

280:11

results 26:22 40:10

40:17 81:22 90:22

113:9,11 119:1

122:12,25 142:15

146:18,21 151:22

161:15 184:2,11

208:4 209:2

211:19 217:17,19

217:22 218:4,19

218:20,24 235:24

239:25 240:2

242:12 245:5

271:17 275:16

277:23 293:2

resumed 131:3

retired 113:16,20

114:1 116:12,17

116:23 117:5,12

117:24 118:6

119:1

retrievable 92:15

return 36:20 212:15

returning 20:15

revealing 218:25

review 14:12 31:25

50:16,18 51:19,21

143:11 170:2

reviewed 270:21

reviewing 287:14

revolution 51:16

revolutionary 273:4

re-ask 112:6

RF 83:16

rice 33:15,15

rich 120:20

Richards 134:4,13

135:2 136:1

richer 120:25

rid 175:21 182:12

182:16,18

right 15:12 19:6

21:4,19 22:7,24

79:13 91:12,17

106:3,9 107:4

111:13 126:4

176:11 182:24

203:12 221:9

225:1 261:13

286:10 294:2

risk 60:9,13 117:22

road 3:11 196:16

Robert 52:25

role 12:6,10 89:15

159:10 160:11

234:17

rotten 240:6,7,9

rough 41:13 59:21

117:21

roughly 19:5 45:6

180:19 181:13

257:2

routine 74:18

row 15:4 19:5,23

21:4,19,23,24 22:5

22:24 33:11

rule 44:4 45:4,14

76:19 249:25

rules 5:17 44:1

188:4 239:14

248:15

run 117:21 174:13

213:16,25 214:22

217:20 218:9

219:5,25 264:4

ruse 147:11

S

S 3:1 20:8 115:19

296:21,21

safe 161:13

said's 283:25

sales 200:4,8,10,14

200:22,25

salve 290:3

salveling 233:15

sample 50:21 51:11

51:19 74:13 78:7

78:11,12,19,21

79:5 82:6,8,11,14

82:17 83:5,10

84:15 105:20

107:18 110:11,12

110:13,20 119:2

174:25 183:9

199:6 200:17

233:2,4,16 234:11

234:16 236:4,6,9

236:12 237:24

280:19,21,22

290:3,4,5,5,10,10

291:10,23

samples 78:15

271:13

sampling 78:10,10

78:13,14,18 84:16

87:16 93:10,11

187:1 191:22

232:23,23 233:3,6

233:7,13,14

246:17 261:18

saneovay 185:22

satisfy 57:9

Saturday 217:24

savant 165:15

save 189:10

saw 35:1 212:21

244:8 275:18,20

277:21 278:17

saying 25:9 94:10

111:7 229:10,12

229:13 230:4

237:9,9,10 240:6

258:1 272:2

286:11

says 16:11 18:5

19:12,24 24:23

27:1 128:20 134:8

147:1,2 175:18

200:11 235:14,20

237:15 241:12

252:4 282:20

284:24 289:7

scale 183:8 217:5,9

217:15 218:1

219:15 292:19

scheme 45:8

scholar 166:5

168:10,11,19

school 91:14 155:4

science 8:16,21 10:3

60:10 134:10

157:14,22 287:18

287:24

scientific 48:2 78:10

78:10

scientist 285:19

286:4

scope 6:20 123:11

123:17,19,21

124:1,3 184:15,16

184:19 185:1

208:11

score 208:20,20

scream 273:2

screen 14:1,6,8

47:11 68:11,12

97:24 180:1,2

182:7,10,16,18

203:17 210:15

272:15,18

screened 182:8

screener 85:13

screening 47:13

125:5 154:4 204:8

SCRS 264:16

se 154:24

search 263:24

second 15:4 21:4

24:16 25:17,18

31:3 34:3,8,22

35:22,24 36:5

38:12 39:19 51:14

57:17,20 134:21

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[328]

147:3 179:22

191:24 194:8

214:9 251:15,21

251:25 252:6

256:24 257:3

271:17 282:6

283:3

Secondly 65:1 161:8

seconds 23:17 44:19

178:8 179:4,11,22

179:25

section 89:7 184:15

184:16,19

see 14:14 15:8,12,13

15:14 19:7,12 20:1

22:3,7,8 26:11

32:16 40:10 62:19

83:17 88:24,25

111:14 143:7

161:7 246:5 252:5

272:17 275:3,12

275:20 276:8

277:12 278:20,23

seen 32:17 34:21

50:3,22 52:10

68:19 80:17 93:19

96:23 126:2

159:22 173:10,13

176:24 187:3

270:18 274:16

275:5

sees 119:22

select 116:18

selected 51:21

233:19 274:3,5,9

selection 93:8,10,13

93:16 94:2 173:5

199:7 210:18

selections 51:24

198:7

selective 237:11

self 211:14 228:4,7

sell 53:12

sells 49:21 52:9,20

53:4 91:2 148:3

send 162:17 193:8

262:6

sends 206:6

sense 8:4 12:13,22

25:2 38:19 42:9

46:9,11 49:14 59:5

60:5 106:22

107:16 116:4

191:15 228:5

234:4,23 277:18

278:5 292:20

sent 189:25 258:24

259:16 262:11,13

271:3

sentence 7:14 26:19

27:12,13 48:22

49:4 133:22 147:3

169:25 185:5

195:10,11 209:12

271:9 284:7

September 42:4

194:16,19,22

195:1,3,4 226:6

Septembered 234:1

series 53:12 69:13

69:15 71:10,13

100:9 189:11

serious 168:10,11,20

169:7,14 179:15

seriously 181:22,24

serve 191:22 284:9

286:13

served 286:22,25

287:4,9

serves 145:3,4

146:18,20

service 286:17

services 207:14

209:18 262:2

264:12

session 4:4 119:10

set 8:23 14:1,3 29:2

33:9 47:19 90:14

102:16 103:15

180:18 183:4

208:15 280:2

291:13 297:7

sets 42:13 78:15

123:5 138:7

245:17,17

setting 231:24

247:10

seven 15:1 16:8,11

21:3,17,25 22:2,3

75:25 76:4,15 77:4

77:12 166:10

170:1 191:11

256:20,24

sex 198:12

Shane 3:14 143:18

271:4

share 166:20 171:1

221:1 224:9,14,20

260:5

shared 7:19,20,21

7:25 8:17,24 10:14

10:22,24 11:1,2,3

217:18 218:4

220:12,23 271:6

sharing 127:14

128:13 163:21

shelf 77:3

shipping 128:23

129:10,13,16

130:2,10

shop 65:4

short 34:12,18 46:25

79:1 133:4 179:24

235:15 263:1

shorter 26:6,8

shorthand 2:19

297:3,11

shots 14:1,6,8 47:11

68:11,12 97:24

203:17 210:15

272:15,18

shoveling 272:19

show 77:7 141:3

208:12 237:13

242:12 244:8

showed 138:4,7

showing 142:10,11

shown 77:11 139:22

142:3

shows 237:15

side 14:3 100:10

246:11 271:16

290:2

sight 170:14 175:14

176:13 272:8

sighted 162:6

165:17 166:4

170:13

sign 266:9 294:3

signed 194:18

295:11

significant 62:15,18

95:24 96:5 198:22

271:2,10,19

277:20

sillily 145:2 180:4

similar 139:20

243:10 251:24

255:12,21,23

similarly 7:15,15

simple 264:9

simplify 197:19

simply 17:2 24:13

26:14 29:21 30:16

34:11 42:7 43:17

52:1 53:22 58:1

88:5 103:1,14

116:17 137:23,23

142:22 150:5,8,21

165:25 166:25

173:11 182:6,7

184:3 185:1

200:11 211:1

219:5 237:10

243:11 245:1,2,24

246:3 247:11

249:13 260:4,16

263:2,22 273:16

275:8,11 278:14

284:3 290:4

simulate 72:24 73:2

76:21

simultaneously

13:10

sin 121:15 188:15

195:24 196:5,10

196:24 197:1,10

197:20,24 198:4

203:9 205:8

293:21

Sinclaire 53:1

205:17

Sinclare 188:25

single 178:21

sir 19:6 179:8

193:15

sit 19:20 33:4 75:5

100:21 102:24

104:22 105:8

106:17 107:11

113:21 114:12

118:8 135:16

155:3 162:23

163:13 173:14

175:6 178:23

179:25 184:8

236:3 249:3 250:7

267:6 288:9

sites 151:15,16

172:22

sitting 291:24

situation 58:17 59:7

59:11 62:22 64:19

96:18,21 129:24

234:3

situations 64:23

141:1

six 15:1,8 16:7,10

18:25 19:8 20:15

89:7 91:17 100:24

170:1 188:23

191:11 192:8,10

192:12 212:23

256:20,24 280:24

281:8

size 183:9 206:13

sizeable 80:9

sizes 174:25

skeptical 109:15,16

223:21,24 224:4

skepticism 66:19,23

172:18 277:18

skewed 235:25

skip 22:1

slash 113:16,17

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[329]

117:5,6 118:6,6

280:6,6,13,13

281:13,14 282:8,8

slightly 208:14

slipped 152:13

slowly 208:18

small 19:10 96:13

96:21,25 151:12

151:22 183:8

199:8,9 200:10

207:10 233:20

276:25 290:25

292:15

smaller 58:4 190:19

198:19,25

smart 126:15

snapshot 161:17

social 225:8

solder 100:21

sole 55:24

solely 55:10 60:9

128:4

solid 80:18

solution 34:19

somebody 46:12

118:25 150:6

152:13 182:5

197:9 201:20

206:8 252:4 264:4

282:17 283:11

somewhat 12:22

90:23 197:7

sophisticated 253:1

253:4,7

sorry 19:9 61:18

72:11 104:2,18

160:10 166:5

198:9 220:15

235:7 266:2

291:18

sort 6:21 29:11

59:20,21 72:19

92:3 95:7 98:21

102:9 107:19

113:25 114:17

115:12 133:5,13

137:3 163:19

166:14 167:11

235:11 243:6,7

245:19 258:16

sorts 261:15 277:13

sound 139:19,20

146:3

sounds 106:9 107:4

182:24

source 9:20 10:14

118:11 134:8

135:1,18 136:1

162:9,10 170:23

222:18 266:13

sources 68:24 78:9

125:22 135:6

162:11 222:17

South 3:11

space 157:10 208:20

sparse 161:9

speak 36:15 52:19

67:8 99:3,4 122:25

123:1 132:11

144:5 193:13

201:2,4 205:21

206:17 207:4

speaking 19:5

181:13

speaks 66:15 235:16

specializes 156:17

specific 6:17 10:18

12:4 18:20 33:5

40:13 41:23 53:20

53:22 55:2 61:16

61:23 64:10,22

65:19,23 69:18,20

69:23 73:5 80:17

89:18 92:14 98:9

98:14 102:25

103:11 107:15

109:4 118:11

120:4 122:11,13

123:8 124:8 135:8

135:9 142:22

151:6,14 163:1,6

165:15 171:4

175:1 179:14

183:22 189:7

193:24,25 194:10

201:4 206:15

207:8 216:19

217:17 218:4,20

233:21 235:19

239:17 241:13,15

242:4,22 244:6,20

244:21 250:24

251:4 261:3

267:23 278:3

283:17

specifically 7:13

15:3 19:21 25:23

33:11 36:2 47:12

49:14 62:10 66:3

94:1 97:25 119:23

121:16 123:21

141:24 176:17

216:22 260:6

275:7

specificity 52:3

specifics 138:19

142:1

specifier 203:7

206:1

specify 17:1

speculate 40:5

spelled 48:24

spent 42:23 179:11

267:12 270:7

292:1

spoke 87:17

spoken 157:16,21

169:23 201:16

259:20 260:5

sponsor 178:12

202:17 247:24

248:10

sponsoring 264:3

sponsors 202:14

sport 287:8

sports 151:17

spot 248:15

spotted 248:25

spreadsheet 217:19

ss 296:3

Ssix 47:12

staff 285:7

stage 149:21

stair 180:1

stand 112:19

standard 12:25 13:6

13:11,11,12,13

93:22 135:7,11,24

213:7,8,20

standards 8:23

135:17,21 136:2

214:7,17 215:2

standpoint 49:9

124:5

stands 20:9 183:4

starch 33:24 34:2

35:14 36:22 37:9

stark 283:7

start 40:1,2 43:16

154:6 209:15

232:21

started 269:25

293:7

starts 245:20

state 2:19 8:7 33:15

56:1,7 60:10 295:3

296:3 297:4

stated 43:15 46:19

79:12 87:18

283:21 284:3

statement 11:6

24:11,11,13 25:5,6

29:9 30:13,15 31:7

38:24 69:20

142:16 145:14

241:20,22 244:19

268:11 287:3

statements 31:9

274:3

states 1:1 2:1 20:16

55:11 56:2 60:11

93:12 97:25

100:12 103:17

134:14 149:6

150:14 167:2

271:9,18

stating 280:23 281:7

282:4

statistic 239:8

statistical 238:3

239:4,6 240:20

statistics 115:4

238:6,7 249:14

status 90:2,6

stay 133:6,7

step 112:5 198:11

Stewart 2:13 4:3,7,7

4:8,8,9,9,10,10,11

4:11,12,12,13 5:4

5:11 6:1 14:13,22

36:14 50:2,20,22

74:8,9 132:4,10

164:5 193:4,12

208:13 209:21

240:25 259:6,9,14

260:13 270:16,18

289:15,17 295:9

296:6

stewart's 185:8

294:2

stick 25:22 62:13

222:7

Sticking 19:22 94:1

stimulus 61:22

stood 74:19

stop 225:17

stopping 130:18

store 76:17 77:3

91:1,3

straight 274:8

strength 276:21

stretch 247:6,8

strike 11:1 18:13

50:10 114:16

138:22 140:16

172:2 246:10

strikes 238:2

strong 50:19

stronger 228:7

struck 225:13

strucks 95:22

structure 174:16,18

174:21,22 175:2

struggling 220:21

stuck 54:10

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[330]

students 246:14

studied 32:12

156:23 180:7

studies 32:22 60:1

68:19 96:24 97:1,5

179:2 183:15

184:6 236:24

249:10 258:18

study 32:1 42:15,16

48:13 53:19 77:10

79:14,15 134:5

143:11 159:22

183:6,7,7,8,20

184:10,12,20,23

184:24,25 186:21

186:25 198:7

199:1,2 201:23

202:9,18 203:17

207:13,13,16,24

208:1,3,15 211:24

217:4,5,7,9,9,13

217:14,15 218:1,1

219:14,15 220:10

233:17 236:7

271:11,19 272:1

291:17,19,19

293:4,5

studying 49:7

Stwo 97:25

subcategory 280:22

281:1 282:7 283:3

subclass 122:1,7

subject 92:9 95:13

99:1 102:14

107:24 114:5,22

115:17

subjective 44:6

subjectivity 44:2

subjects 197:24

submission 160:18

submit 248:3

subopinions 67:15

subscribed 296:14

297:18

subsequent 190:24

subsequently

185:23

subset 191:1,20

201:2 204:5

207:10

subsidiaritive 19:23

substance 120:4

138:21,23 198:3

267:15

substantial 55:12

60:11,13 81:20

136:5 180:11,16

200:8 238:23

substantially 56:22

58:4 228:24

substantiated 11:11

11:20 287:15

substantive 52:17

230:7

substitute 25:4

53:16

substituted 53:25

subsumed 204:17

204:19 205:22

subtle 231:16

successful 292:12,14

sufficient 10:19,24

34:23 56:13

142:20 149:23,24

158:1 168:16

222:11 223:5,14

292:4,7

sufficiently 89:21

112:1,20 118:16

149:19 155:15

224:8,19

suggest 34:22 70:22

137:19 169:7

172:17 184:2

207:2 212:11

227:16 246:2

282:10

suggested 46:22

47:4 152:10 207:9

276:18

suggesting 108:5

245:22 278:19

283:19

suggests 70:11,15

126:22 127:13

146:14 148:18

Suite 1:14 2:15 3:7

3:11

sum 172:20

summarize 282:16

summarized 282:12

summary 113:9

172:23 238:6

272:16

superior 243:16

superiority 7:18

8:11 243:18

supervisor 263:22

supervisors 93:24

263:20

supplement 60:4,6

supplemented 78:12

supplied 193:3

supplies 210:18

supply 147:15

support 161:25

171:12

suppose 17:19 31:19

38:21 45:6 59:1

64:23 69:11 116:5

147:22 207:9

Supreme 8:1

sure 6:11,19 7:6

14:7 23:11 44:15

58:8 60:25 61:1

79:10 91:6,6

100:18 105:4

106:1 112:8 116:7

137:14 140:4

144:11,13 158:19

164:23 165:3

173:21 182:20

183:21,24 193:1

221:10 225:7

229:14 230:17

233:5 236:2 241:5

249:17 257:17

259:11 264:4

271:5 280:16

281:9

surely 183:24

survey 14:6,9,18

15:8,11,24 16:2,22

18:22 20:25 21:15

22:17 23:12,24

24:1 27:25 28:9,15

29:17 31:12,13

33:3 40:10 43:14

46:24 47:25 51:23

53:21 54:2,4 65:7

65:10,14,16 66:3,7

66:7 67:5,23 69:5

70:24 72:1 74:12

74:12,23 75:11

76:20 78:4,13,18

78:18,25 79:8

81:17,18 82:13,20

86:8 87:23 88:18

88:21 89:1 90:18

90:19 92:25 93:4,6

93:15 94:19,22

95:5,15 96:8,22

97:8,8,24 98:6

99:6 100:4,10

101:20 102:5,17

104:12 106:10

108:1,22 110:6

111:4,17 112:12

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117:4,13,14 118:2

118:3,15 120:3,24

120:24 121:16

123:14,15,15

124:13 125:6,11

132:19,20,24

133:15,23 136:11

136:12,14,18

137:3,7 139:13

142:15,23 146:3,6

147:5,8,17 149:11

149:15,17,22,23

149:25 150:9,23

150:25 152:1,8,15

153:3,11,14 154:5

154:9,10,17,17,19

154:21,23 155:12

155:16 156:14,20

162:21 166:5

167:2 174:14

175:9 176:11

177:2,4,18,24

179:17 181:21,25

181:25 183:12

184:4 185:3,24

186:6 187:10,23

191:22 195:3

196:11,17 199:5

200:13 201:22

202:16 203:17

206:21 208:23

211:8,23 215:18

215:25 216:6

217:13,20 218:7,9

218:19,20 219:4

219:20 220:1,4

224:8 225:23

226:12,18,19

227:10 230:2,4

231:7 232:12

234:3 235:9,22

242:12 243:24

244:18 245:5

247:1,2,4,9,10,13

247:13 249:21

250:5 251:7,23,25

258:17 259:2

261:9,10,12,15

262:1,16,18 264:2

264:3,10,12

265:15,16 272:15

273:1 276:2,3

280:12 289:5

291:5,23 292:14

292:19 293:15,18

surveyed 201:17

202:2 204:9 205:8

206:23 224:6

234:17

surveys 32:17 41:1

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81:22 90:3 121:7

136:23 138:16,17

148:19,24 149:3

149:15 150:11

151:11,21 154:24

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[331]

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Synovate 121:8

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195:3

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242:9

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132:20,24 149:3

196:25 197:21,23

209:17 224:16

226:6,11,14,18

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74:21 104:23

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116:10,16,21

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233:6 260:1

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290:16

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261:3

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76:4,15 77:4,12

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179:22 199:16

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266:25 269:13,21

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282:19

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228:10

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23:18 47:15,22

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88:15 89:5 92:5

95:9 98:23 102:10

103:13 107:21

108:19 114:2,18

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137:23 139:8,15

139:17 204:12,13

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276:21

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183:20 184:7,10

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23:17 29:6 34:7

52:3 57:13 59:24

108:6 168:17

203:25 206:11

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243:16 277:14

278:1,8 279:12,15

290:2

terrible 170:5

test 213:13,23,24

214:20,22 215:17

215:19 216:19

278:5

testified 5:7 100:18

132:6 144:14

146:8 173:20

259:15 267:21,25

268:4,23,25

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288:2,3,4,6,7,22

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182:19 297:9

testimony 132:17

152:18 153:20

268:6 288:15,20

testing 216:6

text 6:9 33:11

thank 5:20 15:14

63:21 113:2

Thanks 193:2

Thatwould 210:14

theite 187:10

thereof 297:13

theys 35:16

they'd 28:20

thing 20:8 82:19

163:22 170:18

182:24 195:2

237:15 258:9

272:24 277:3

things 8:19 24:18

31:19 43:16 45:5

57:2 63:3,15 64:24

72:16 90:10

117:24 126:2,2,5

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166:8 173:5,10,12

174:8 176:6,8,10

176:17 183:11

197:19 242:16

245:18 248:18

277:13,13 288:14

think 9:3 12:25

13:10 14:19 17:12

24:8,23,23 26:13

30:19,20 31:2

33:13 34:5 35:8

39:24,24,25,25

40:22 41:3,3,5

42:24 43:24,25

44:10 45:2,19

46:20 48:21 49:18

50:1 52:11,15,21

52:23,23 55:22

59:11 61:15,25

63:13,24 67:6

68:12 70:2,20 71:4

71:9,15 72:12

74:14 80:16,18

81:16 82:16,17

85:17 86:10,13

87:5 90:8,13,21

101:2 103:7,9,20

107:7 109:2,22,25

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[332]

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244:5 245:23

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Thomas 171:11

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297:7

timeframe 69:20

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71:11 72:6 121:17

184:5 223:3

250:10,12 267:21

267:24,25 268:2

268:23

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100:21 102:24

104:22 105:8

106:17 107:11

113:21 114:12

118:8,11 135:16

150:10 160:4

161:20 162:23

163:13 173:14

178:23 184:8

214:20 223:8

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266:16 267:10

toed 35:14,16

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52:20 53:3 54:2

105:22 106:4,24

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215:21 239:2

275:5

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201:15

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291:25

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5:14 49:24 50:7

97:19 127:9

159:17,17 162:18

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248:21

training 97:12,15,17

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297:13

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46:15,18 273:2

283:9 292:18

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transformations

282:14

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44:9,11

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238:24

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189:16 275:1

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251:2

trillion 44:25 45:6

46:14

trim 46:2

trimmed 46:22

trimming 45:21

trivial 200:20

240:10

true 8:20 20:10 60:5

60:8 91:11 95:21

158:25 226:3

263:14 296:11

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117:18 191:24

192:1

trying 29:8,10 68:16

103:16 107:17

136:25 137:2

143:16 172:11

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[333]

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230:3,11 235:5

275:11 278:10

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Tuesday 1:12 2:16

5:1 132:1

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292:10,17

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typed 263:23

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94:24 234:2,2

262:17

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200:23

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U

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203:23

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81:19 85:20,24

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8:21 10:3

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9:12 13:4 14:5

25:8,8 27:22 37:1

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286:3 289:9

290:23 292:16

understanding

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35:18 38:6 42:25

44:21 47:5,14,22

48:4,13 52:8 54:17

54:18,21 65:21

66:20,24 68:17

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221:1,4,12 222:20

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286:9

understandings

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understands 62:15

62:18 128:21

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68:18,23,23 69:6

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215:15,23 216:2

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114:25 115:3,4,4,9

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117:13,20,25

118:6 119:2

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252:3,7,11,12,21

256:4

United 1:1 2:1 55:11

56:2 60:10 93:12

100:12 103:16

units 252:23 254:14

254:14,20,21

255:12 256:16,16

257:15,16

unknown 233:6

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43:23

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36:8 42:5,17 46:19

50:15 51:22 52:4

54:6 68:2 79:4

80:4,13 98:14

112:8 137:23

139:15 143:14

151:15 156:21

163:11 192:24

204:12,18 214:20

223:25 228:25

240:16 248:5

253:19 255:7

274:16 275:5,17

275:19 277:7,21

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useful 74:1 119:25

162:8,10 197:14

254:19

user 175:7 176:1

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[334]

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users 206:2

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80:2 150:25

151:11 273:8

usually 191:25

V

valid 81:22 112:1,20

118:16 145:24

150:1 153:14

156:9

validity 142:20

147:14 179:16

180:5 235:17

value 18:21 29:22

30:18 46:19,19

133:14 170:8

values 18:21 283:10

variability 212:20

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244:4

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283:7

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56:1,22 57:8 58:3

58:9

voice 95:19 148:15

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volume 170:7 199:7

199:9 200:4,8,10

200:14,23,25

239:25

W

W 296:21

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38:23 40:1 46:18

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69:17,19 87:22

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112:7 130:20

132:16 142:1

154:2 164:23

178:5 183:5 184:2

184:4 191:18,25

192:16 200:16

203:6 225:6,9

230:7,22 231:9

234:21 235:3,4

249:17 254:23

279:1 280:15

wanted 46:22 53:23

68:22 69:1 86:7

103:14 175:17

177:21 183:11

274:22 275:3

276:6,6 277:10,11

277:14 279:2

291:22

wanting 226:24

wants 178:5 187:11

wash 231:14

Washington 3:4

wasn't 30:22 39:2,2

65:13,19 66:6

103:11,16 121:5

123:11 126:16

187:21 215:17

216:5

waste 85:2 274:13

watched 93:20

watching 180:1

water 34:3 35:14,17

91:2,4 244:9

way 7:22 8:18 11:2

27:8 28:20,24

29:20 31:6 32:8

44:21 80:5 81:20

86:17 88:1,7,10

89:1 92:21 94:10

100:8,19 116:7,15

116:23 117:16,17

118:9,12 119:25

122:24 125:3,16

126:8 127:16

129:21 130:18

132:13 133:19

136:2 144:6,8,11

146:19 149:25

150:9,22,23

151:10 152:17,17

152:19,22 153:9

154:4 158:13

164:3 168:8

176:19 180:5

182:7,8,8,8,11

183:15 190:12

195:19 199:11,18

205:23 207:11

208:7 222:9 228:9

232:6 234:6 236:1

237:10 238:14,19

238:19 246:18

247:10,11 251:3

252:9 260:4

265:10,17 268:20

274:15,18 278:24

279:3 283:2

287:21 291:15

ways 29:7 42:2

76:13 94:25

109:14,15 150:7

176:3 178:1

231:13 237:4

238:25 239:11

259:15

web 233:20 247:11

website 135:10,12

167:13 170:25

171:3 172:13

websites 127:9

172:13 174:7

233:21

week 19:19 29:18

252:6

weeks 15:5,13 16:3

16:5,11 17:2,15,18

17:23 18:4,7,19

19:2,13,20 20:16

21:5,20 22:7 23:17

23:25 24:2,6,8,19

24:25,25 25:10,12

25:22,23,24 26:4,6

26:10 255:25

293:9

weighted 110:14

welcome 132:10

187:12

welfare 284:9

285:13 286:14,17

286:22,25 287:4,8

went 126:24 145:11

166:8 185:16

weren't 86:5 88:16

89:9 100:18 121:2

161:18 182:8,9

198:7

we'll 13:25 130:23

189:10 193:1

209:15 233:14,15

265:6 294:4

we're 8:7 18:2 32:1

38:19,19 50:2 71:4

88:7 100:9 117:11

122:9 125:11

142:1 184:23

187:15,18 193:7

211:25 240:3

241:10 256:13

283:12 285:11,11

289:14

we've 36:7 67:15

161:12 192:24

193:16 196:7

235:18 237:1

246:16 255:8

WHEREOF 296:13

297:17

white 101:17,25

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[335]

102:3 236:18

whore 90:25

whyment 205:18

wickipedia 163:12

widely 162:19 273:5

273:24

willing 83:16,21

158:17 159:1,4

209:9 263:7

willy 288:2

Wilshire 1:14 2:14

3:7

winter 190:18,22

192:4 194:4

wish 35:11

withdraw 95:23

104:4 154:11

158:14 170:16

227:14 229:21,22

288:2 292:16

withdrawn 62:17

99:9 125:4 171:3

194:7 201:2

265:15 281:24

witness 4:2 5:5 8:4

9:18 11:17 12:10

13:9,21 18:10

24:22 25:15 26:1

26:13 27:8 28:4

29:6 30:25 31:16

32:24 34:5,11,21

35:8,16 37:12 38:6

39:22 42:2 43:13

44:17 45:18 46:7

48:8,17 49:13 51:4

51:9 52:6 53:6

54:9,16,23 55:18

56:5,18 58:13,22

59:9 60:18 61:8,15

62:7,24 63:12 64:8

65:13 66:14 67:4

67:12,22 69:17

70:7,13 72:10,12

73:1 75:18 76:23

77:17,25 78:24

80:25 81:24 86:10

87:4,25 88:20

89:12 90:21 94:14

96:2,11 101:10

104:22 110:10,18

111:7,11 112:3,15

112:23 119:13

121:5 122:1

124:12,21 125:21

126:13 127:23

129:8 130:8

132:23 140:21

143:22 145:19

151:14,25 152:22

153:16 154:1

159:8 161:6

167:24 169:5

171:18 180:15

189:21 190:3,9

205:11 218:14,21

218:23 219:11

221:4 240:2 260:1

268:16 269:24

279:21 284:17

287:2 293:25

296:13 297:17

witnesses 297:8

woman 147:6 149:8

150:3

women 147:9,18

148:8,14 262:11

wood 71:19

word 5:21 7:15 30:5

33:5 59:13 91:8

112:9 124:18,24

125:1,17,18 126:9

126:9,25 128:2,11

128:20,20 129:4

138:2 204:18,21

205:1,7,19 206:16

223:11 276:10,12

276:15,24 277:4

worded 279:3

words 119:21

170:12,16,17

204:23 209:12

277:8,22 278:3

work 32:15,16 67:5

113:12 115:21

116:19,19 143:14

144:20 163:7

169:18 183:25

188:24 194:16

197:16 226:23,25

231:17,18 257:14

262:2,8 263:15,18

265:20 266:12,17

268:15 269:24

272:2,9 288:1,5

worked 42:20 93:18

248:13

working 173:7

262:20,21

works 165:21 167:3

173:15

world 8:7 180:1

228:6

worth 109:24 208:8

wouldn't 13:9 28:13

37:9 42:5 43:11,21

45:14 46:4 53:13

53:25 54:4 59:23

60:2 67:16 69:7

73:1 103:4 123:24

124:16 140:6

154:20 156:1

167:24 168:24

180:15 185:12

196:3 199:2 214:4

214:23 226:21

227:4 269:5,9,25

278:25 292:6

write 5:21 40:22

writes 206:6

writings 258:15

written 32:3 140:1,4

159:16 258:16

262:15,17,22

263:8

wrong 8:25 25:9

47:10 147:8

173:22 192:2

194:13 209:24

224:24 226:25

233:11 245:22

251:3 257:18

283:18,19

wrote 7:10 49:3

X

X 4:1

XLS 208:21

Y

yeah 36:9 57:19

79:13 104:5 164:2

171:18 196:16

204:23 213:11

235:6 267:3,4,5,9

267:20 280:21

287:22 294:1

year 18:8,16 24:6

25:4,12,21,25 26:4

26:7,10 29:16 30:3

41:9 147:5 150:15

150:18 152:5,11

152:12,20 153:6

182:6,23 190:19

190:23 194:17

196:8,9 213:16,25

214:6,10,13,22

215:1,11 216:18

217:2 221:19

251:11,12 252:6

252:15 270:1

280:1,7,14 281:5

281:14,14,17,18

281:19,24,25,25

282:9,14,25,25

283:1,2,4,13,20,21

283:25 284:1,3

yearment 281:16

years 17:24 32:4

41:10 42:23 44:25

45:6 46:13,13

90:25 96:23 106:2

106:11 151:8

156:3,11 160:3

161:12 199:13,16

200:19 215:7,12

216:4,13 235:21

247:7 255:5,25

256:1 264:17

267:24 268:12

269:14,17,20,21

270:2,6,10 278:7

279:18 282:5,18

282:19

younger 78:20,22

79:4 108:7 151:18

yous 35:14

Y.K 3:6

Z

zero 15:1,1,8,8 16:7

16:7,10,10 18:25

18:25 19:7,7 20:15

20:15 21:2,2,17,17

21:24,25 22:20,20

33:10,10,10,10,10

208:20 261:7,7,7,7

$

$37,500 267:8

$750 265:20

1

1 1:12 2:17 4:7 5:1

5:24,25 6:2 13:25

23:15 48:21

129:22 130:16

132:1 133:21

296:7

1st 79:15

10 4:11 156:8

210:22 252:16,18

254:23 255:1

100 215:16,24

10877 1:14 2:14 3:7

11 4:12 85:4 146:24

163:15 166:10

213:19 240:25

11:50 131:2

12 4:12 23:14 75:2

99:16,20 100:15

100:20 115:6

270:16

12:50 131:4 132:2

12598 2:18 297:25

13 4:13 41:5 289:11

PUBLIC DOCUMENT

CX-A:1
Stewart, Ph.D.

ECM BioFilms, Inc., et al. 7/1/2014

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

[336]

289:14,15

14 115:7 163:14

167:7 169:25

284:4

15 103:19 104:1,7

104:16 105:23

106:2,6,15,18

107:2 110:5,10,18

111:1,2,2,5,7,16

111:22 112:9

113:20 114:11,25

115:8 152:7

153:24 178:7

246:1,1

16 91:11

17 91:3

18 41:7 84:24,25

89:25 90:4,9,15,17

90:18,25 99:25

101:7 105:3,7,23

106:5,19 107:9

110:12 111:2

112:9,11

19suggest 227:15

1988 268:16

1990 134:5

2

2 4:7 13:24 14:1

47:10,11 68:10

89:6 97:23 98:7

263:24 272:14,23

20 75:19 83:12

179:4,11,11,22

197:10 208:8,10

221:16,22 264:17

270:9,9 292:1

20th 289:22

200 192:5,17

2000 157:9 208:6

2012 163:15

2014 1:12 2:17 5:1

79:15 132:1 296:7

296:15

202 3:4

20580 3:4

24 107:1 282:1

283:2 284:2

25 32:4 178:8 220:6

267:24 268:12

270:13 291:20

292:8,10,16

262014 79:14

27 130:17 133:22

186:23 209:16

28 151:20 152:20

209:15

29 104:13 106:12

29,000 249:3

291 83:17 84:4

3

3 4:8 14:3 15:2 33:8

41:4

30 41:8,8 42:23

96:23 146:24

251:12,16 254:24

255:1,3,3,4,5,9,24

255:24,25 256:1

266:24 291:6

292:23

310 3:8

3210 3:11

326-2551 3:4

331A 193:5

34 100:1 101:7

35 100:1 101:7

388-8899 3:12

39 87:17,21 88:13

4

4 3:11 4:8 21:18

48:22

4,020 84:8

40 40:25 42:23

180:17,18 237:2

237:23 239:9

248:20

41 104:9

44 113:15 116:10

49 100:1 101:7

5

5 4:9 6:19 50:1

96:15 271:8

279:23

5:26 2:16 294:5

50 100:1 101:7,25

102:5 103:25

104:6 106:11,11

106:15,25 107:10

108:5 109:7 110:7

111:7,18 112:13

156:4,13 200:15

200:18 220:7

221:6,13,16

235:21 291:2,5

292:9,22

53 33:14,25

55 101:25 283:15

5511 213:23

56 101:17

58 290:23 291:16

6

6 4:9 74:7,7 83:7

99:17

60 180:19

600 3:3

602 3:12

64 214:19 265:25

6400 213:2,6 214:17

65 100:1,20 101:7

102:5 103:25

104:6 106:11,11

106:15,25 107:10

66 99:21 100:1

101:7,21 102:16

103:18,22 104:13

104:16 105:7

106:4

7

7 4:10 15:8 112:25

113:1 272:16,17

7th 7:14

70 83:8 268:2

700 1:14 2:15 3:7

73 290:22 292:1

75 79:20,23 181:18

181:20,21

7500 267:4

79 83:9

8

8 4:10

8:54 1:20 2:16 5:2

80 24:24 79:23

268:2

824-4343 3:8

85 290:20

85286 3:12

9

9 4:11 7:13 203:16

284:6

90 80:4 268:8,10

269:1

90024 3:8

PUBLIC DOCUMENT

CX-A:1
Complaint Counsel

Exhibit A

Attachment 2

CX-A:2
PUBLIC DOCUMENT

CX-A:2 at 1

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~~ RS WebCATI St u d y I 

Manufacturers' Survey 

CSRS #32241 

Hello. My name is from California Survey Research 

Services. We are conducting a survey of the use of plastic materials for product 

manufacturing and packaging. We are not selling anything and all of your responses will 

be confidential. We are offering a $25 incentive to qualified respondents who will answer 

a few questions. 

CLICK NEXT TO CONTINUE 

~~~ l!lie'JI·I•• -~~~~~~~~~·- ... 11!1. 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-;_ R 5 WebCAT I 5 t u d y J 

(Q1) 

Are you involved in the decisions of your organization regarding the materials used in 

manufacturing products or product packaging? 

YES 

J NO 

I U!D! I I I :ll:l'] rt'!Q I •11~~~~~~~·- llllu1ll1!1• 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 2

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~~RS WebCATI Study I 

(Q1A) 

May I speak with someone who is involved in the decisions of your organization 

regarding the materials used in manufacturing products or product packaging? 

YES AND AVAILABLE 

.:> YES AND NOT AVAILABLE 

o NO/DON'T KNOW 

I ~~~ 1 ·~III·P;t I •1~~~ 1a11 • lll~ulll1!1• 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-;_ R 5 WebCATI 5 t u d y J 

(Q2) 

Are any of those materials plastic or components used for manufacturing plastic? 

o YES 

NO 

( JiG.ll. I .. . • 11~~ 1~11 · •• 1111 • 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 3

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~~ RS WebCATI St u d y I 

You are just the type of decision maker we would like to talk with. I have just a few I 

questions and I would like you to answer each question in your own words. There are no 

right or wrong answers. I just want your thoughts and opinions. 

CLICK NEXT TO CONTINUE 

~= -~~I .il~l l~ll ... 11!1. 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; RS WebCAT I St u d y J 

(Q3) 

How is plastic used in your organization's products or packaging? 

INTERVIEWER NOTE: WRITE DOWN VERBATIM ON PAPER AND TYPE IN AT THE 

END OF THE SURVEY. 

CLICK TO CONTINUE AND CLICK NEXT 

o TO CONTINUE 

[ !.r:;:m. I I I~III·J•tt I •1'~1 !a~l • llillu1111!l• 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 4

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~~ RS WebCATI St u d y I 

(Q4) 

In your organization's decision to use plastic as a manufacturing material what factors 

are important in the selection of suppliers? (Probe until no further response) 

INTERVIEWER NOTE: WRITE DOWN VERBATIM ON PAPER AND TYPE IN AT THE 

END OF THE SURVEY. 

CLICK TO CONTINUE AND CLICK NEXT 

o TO CONTINUE 

I ·~ l l!lie'JI·I•• -~~~~~~~~~·- ... 11!1. 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; RS WebCAT I St u d y J 

(QS) 

Is biodegradability an important consideration in your selection of the plastic materials 

and supplies used in production and packaging in your organization? 

YES 

J NO 

I U!D! I I I :ll:l'] rt'!Q I •11~~~~~~~·- llllu1ll1!1• 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 5

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~~ RS WebCATI St u d y I 

(QSA) I 

How does biodegradability influence your organizataons decisions about the selection of 

plastic materials and supplies? 

INTERVIEWER NOTE: WRITE DOWN VERBATIM ON PAPER AND TYPE IN AT THE 

END OF THE SURVEY. 

CLICK TO CONTINUE AND CLICK NEXT 

o TO CONTINUE 

I ·~ l l!lie'JI·I•• -~~~~ ~~~~ ... 11!1. 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; RS WebCAT I St u d y J 

(Q6) 

How would you define biodegradability? 

INTERVIEWER NOTE: WRITE DOWN VERBATIM ON PAPER AND TYPE IN AT THE 

END OF THE SURVEY. 

CLICK TO CONTINUE AND CLICK NEXT 

o TO CONTINUE 

[ !.r:;:m. I I I~III·J•tt I •1'~1 !a~l • llillu1111!l• 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 6

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; R 5 WebCATI 5 t u d y I 

(Q7) 

Does the term biodegradable suggest or imply to you any specific process or type of 

process? 

Yes 

..) No 

( IUll:iJ. I I l:.ll:l'lrt'JQ I •11~~·~~~~·- llllu1ll1!1• 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; RS WebCAT I St u d y J 

(Q7A) 

What process or type of process does the term biodegradable suggest or imply to you? 

INTERVIEWER NOTE: WRITE DOWN VERBATIM ON PAPER AND TYPE IN AT THE 

END OF THE SURVEY. 

CLICK TO CONTINUE AND CLICK NEXT 

o TO CONTINUE 

( !.r:;:m. I I I~III·J•tt I •1'~1 !a~l·• llillu1111!l• 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 7

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; R 5 WebCATI 5 t u d y I 

(Q8) 

Does the term biodegradable suggest or imply to you any amount of time by which 

decomposition will occur. 

Yes 

..) No 

( IUll:iJ. I I l:.ll:l'lrt'JQ I •11~~~~~~~·- llllu1ll1!1• 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; RS WebCAT I St u d y J 

(QSA) I 

What does the term biodegradable suggest or imply to you about the specific amount of 

time by which decomposition will occur. 

INTERVIEWER NOTE: WRITE DOWN VERBATIM ON PAPER AND TYPE IN AT THE 

END OF THE SURVEY. 

CLICK TO CONTINUE AND CLICK NEXT 

o TO CONTINUE 

I l.l'lul I .iaJI·Ii;& -~~~~~~~~~·- -~~111111!1. 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 8

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; R 5 WebCATI 5 t u d y I 

(QSB) 

Is the amount of time by which decomposition will occur important in your organization's 

selection of material and supplies used in production and packaging? 

Yes 

..) No 

( IUl}JJ. I I l:.ll:l'lrt'JQ I .11~~·~~~~·- llllu1ll1!1• 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; RS WebCAT I St u d y J 

(QSC) 

Thinking specifically about plastic, is the amount of time it takes for a material to 

biodegrade an important consideration in your organization's selection of the plastic 

materials and supplies used in production and packaging? 

::> Yes 

o No 

I ...rm I ·~III·Pil I •1~~~ 1a11·• lll~ulll1!1• 

, I• • I 
PUBLIC DOCUMENT

CX-A:2 at 9

• CSRS WebCATI Study - Google Chrome - CJ--- I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; R 5 WebCATI 5 t u d y I 

(Q9) 

Are you familiar with the Federal Trade Commission's Revised Green Guides, that is, 

the FTC's Guides for the Use of Environmental Marketing Claims? 

Yes 

..) No 

( IUll:iJ. I I l:.ll:l'lrt'JQ I •11~~·~~~~·- llllu1ll1!1• 

, I• • I 

• CSRS WebCATI Study - Google Chrome - CJ - I [] 192.168.2.15/cgi-bin/cfmccgi/websrv83.cgi l 

r~-; RS WebCAT I St u d y J 

(Q9A) 

How do you think these guides will affect your business, if at all? 

INTERVIEWER NOTE: WRITE DOWN VERBATIM ON PAPER AND TYPE IN AT THE 

END OF THE SURVEY. 

CLICK TO CONTINUE AND CLICK NEXT 

o TO CONTINUE 

( !.r:;:m. I I I~III·J•tt I •1'~1 !a~l·• llillu1111!l• 

, I• • I 
Complaint Counsel

Exhibit A

Attachment 3

CX-A:3
caseident Q1 Q1a Q2 Q3 OEQ3 Q4 OEQ4 Q5 Q5

A

100001 1 1 1 Uhm they're our film our products is made into pl

a 1 Price (P) Ability to supply at a good price. 9

100003 1 1 1 We make plastic bags. 1 Quality (P) That's it. 9100004 1 1 1 We use Pipe Propiline resins to manufacture little 1 I would think it's quality that it complies with FDA ( 9

100005 1 1 1 We extrude plastic from pellet form to make trash 1 Pricing, quality and on time delivery. (P) Not much 9100006 1 1 1 It used to manufacture our product. 1 Quality (P) Consistency (P) Verification of compon 9100007 1 1 1 We make plastic food packaging. (P) No 1 Gotta be food grade and price. (P) No 1 1100008 1 1 1 We make plastic packaging for food, medical and 1 Uhm quality (P) Price (P) and companies standin

g

9

100010 1 1 1 We're custom plastic injection company so pretty 1 Price, quality and delivery (P) That's all. 9100011 1 1 1 Uh it is flexible film that we use to make food cont 1 Specification of the material (P) Service and pricin 9100012 1 1 1 We manufacture plastic bags. 1 Cost, (P) No nothing else, just cost. 9

PUBLIC DOCUMENT

CX-A:3 at 1
OEQ5A Q6

 1 1 1 1 1Well how does it, I guess we would consider biode 1

 1 1 1 1

PUBLIC DOCUMENT

CX-A:3 at 2
OEQ6 Q7 Q7

Using ASTM 6400 (P) Uhm either that or ASTM D5511. (P) That's all. 2The ability to make materials to dissolve within a year. 1 1Based on what resins specs dictate 1 1It's a joke right now. (P) No 1 1That the product will completely uh decompose within 1 to 3 years. 1 1That's a difficult one, Biodegradability means it has to biodegrade in a landfill. 30% goes to incinerator and 70% to landfills. (P) No 2Something that would break down according to the ASTM 6400 standards. 2Classical definition is the breakdown of the chemical components. (P) That's it 1 1Uhm material that degrades in the presence of light, air and moisture. 2Umm, for plastic bags, will break down in a reasonable amount of time in the environment. 1 1

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OEQ8A Q8B Q8C Q9 Q9A

Greater than 50% within 60 days. 1 21 1

2

I would say maybe 30% increase (P) 30% increase in decomposition so it decomposes 30% faster than normal material 2 2It reduces the time for decomposition. (P) No 2 111-3 years. 2 2

1 1

I cant remember the time but its the time specified in the ASTM 6400 that I mentioned earlier. 1 1 2

2

Over a year it will decompose 1 12Within a few years. 2 11

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OEQ9A Q10

Uhm it is affected us in a negative way because w 1

 1 1If the public demands it, we will have to fall in line 1 1Well I think guides makes it difficult to make any s 1 2 1 1They will change the product/additive I use for bag 1

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Complaint Counsel

Exhibit A

Attachment 4

CX-A:4
PUBLIC DOCUMENT 

Manufacturers/Distributors 

Orga11ization Name 

Sunday, May 04, 2014 

Tile following companies may be able to assist with your desire to purchase biodegradable 

plastic products, components or packagi11g made with ECM BioFilms additives: 

Contact Name Phones Email/Website 

---

I 

:p.... 

..... 

• 

Page 1 of27 

For an updated, expanded or more specific Jist for your product requirements, please contact ECM BioFilms, Inc., at (440) 350-1400 or biodeg@ecmbiofilms.com 

Please keep in mind that this information is confidential and is not intended for general publication or dissemination to other partiel()t~~mission. 
Complaint Counsel

Exhibit A

Attachment 5

CX-A:5
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

 

 ) 

In the Matter of ) 

 ) 

ECM BioFilms, Inc., ) Docket No. 9358 

a corporation, also d/b/a ) 

Enviroplastics International ) 

 ) 

COMPLAINT COUNSEL’S FIRST SET OF

REQUESTS FOR PRODUCTION OF DOUMENTS

 Pursuant to Rule 3.37 of the Federal Trade Commission’s Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel hereby request that ECM Biofilms, Inc. (“ECM”) 

respond to these Requests within the time prescribed by the Federal Trade Commission’s Rules 

of Practice, and produce the following documents and/or tangible things for inspection and 

copying at the Federal Trade Commission, 600 Pennsylvania Avenue, NW, M-8102B, 

Washington, DC 20580, or at such time and place as may be agreed upon by all counsel. 

INSTRUCTIONS

1. These instructions and definitions should be construed to require responses based 

upon the information available to ECM as well as your attorneys, representatives, investigators, 

and others acting on your behalf. 

2. If you are unable to produce a document or property requested, state in writing 

why you cannot produce the document or the property and, if your inability to produce the 

document or the property is because it is not in your possession or the possession of a person 

from whom you could obtain it, state the name, address, and telephone number of any person 

you believe may have the original or a copy of any such document or property. 

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2

3. If you object to a portion or an aspect of any Request, state the grounds of your 

objection with specificity and respond to the remainder of the Request. 

4. If, in answering these Requests, you encounter any ambiguities when construing a 

request, instruction, or definition, your response shall set for the matter deemed ambiguous and 

the construction used in responding. 

5. Where a claim of privilege is asserted in responding or objecting to any discovery 

requested in these Requests and information is not provide on the basis of such assertion, you 

shall, in your response or objection, identify the nature of the privilege (including work product) 

which is being claimed. When any privilege is claimed, you shall indicate, as to the information 

requested, whether (a) any documents exist, or (b) any communications took place, and (c) also 

provide the following information for each such document in a “privileged documents log” or 

similar format:

a. the type of document; 

b. the general subject matter of the document;

c. the date of the document; 

d. the author(s) of the document; 

e. the addressee(s) and any other recipient(s) of the document; and 

f. the custodian of the document, where applicable. 

6. If the requested documents are maintained in a file, the file folder is included in 

the request for production of those documents. 

7. These Requests for Production seek documents not already produced by you 

pursuant to the FTC’s letter requests. To the extent responsive documents have already been 

produced by you, you should so indicate and include the Bates Number identifying the 

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3

documents responsive to that Request. If the document previously produced by you was wholly 

or partially redacted, please provide an unredacted copy, or the basis for claiming privilege or 

other protection as described in Instruction No. 5. If the document includes charts or graphs, 

provide color copies of such documents. 

8. Every Request for Production herein shall be deemed a continuing Request for 

Production, and Respondent is to supplement its answers promptly if and when you obtain 

responsive documents which add to or are in any way inconsistent with Respondent’s initial 

production. 

DEFINITIONS

Notwithstanding any definition below, each word, term, or phrase used in these Requests 

is intended to have the broadest meaning permitted under the Federal Trade Commission’s Rules 

of Practice.

1. “All” means and includes “any and all.” 

2. “Advertisement” means any written or verbal statement, illustration, or depiction 

that is designed to effect a sale or create interest in the purchasing of goods or services, whether 

it appears on the Internet, in email, on packaging, in a brochure, newspaper, magazine, pamphlet, 

leaflet, webinar, circular, mailer, book insert, free standing insert, letter, catalog, poster, chart, 

billboard, point of purchase material (including, but not limited to, a display or an item worn by 

salespeople), fact sheet, film, slide, radio, broadcast or cable television, audio program 

transmitted over a telephone system, program-length commercial, or in any other medium. 

3. “And” and “or” shall be construed either disjunctively or conjunctively as 

necessary to bring within the scope of the request any information that might otherwise be 

construed to be outside its scope. 

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4. “Any” means and includes “any and all.”

5. “Document” or “documents” are synonymous in meaning and equal in scope to 

the usage of the terms as defined by 16 C.F.R. 3.34(b), and includes, without limitation, any 

written material, whether typed, handwritten, printed or otherwise, and whether in draft or final 

form, of any kind or nature, or any photograph, photostat, microfilm or other reproduction 

thereof, including, without limitation, each note, memorandum, letter, release, article, report, 

prospectus, memorandum of any telephone or in-person conversation, any financial statement, 

analysis, drawing, graph, chart, account, book, notebook, draft, summary, diary, transcript, 

computer database, computer printout, or other computer-generated matter, contract or order, 

laboratory report, patent, trademark or copyright, and other data compilations from which 

information can be obtained. Electronic mail is included within the definition. A draft or nonidentical copy is a separate document.

6. “ECM” shall mean ECM Biofilms, Inc., including without limitation, its agents, 

employees, officers, or anyone else acting on its behalf. 

7. “ECM Additive” means the plastic additive manufactured by ECM, including but 

not limited to “Masterbatch Pellets.”

8. “ECM Plastics” means plastics that contain ECM Additives.

9. “Regarding” means and includes affecting, concerning, constituting, dealing 

with, describing, embodying, evidencing, identifying, involving, providing a basis for, reflecting, 

relating to, respecting, stating, or in any manner whatsoever pertaining to that subject.

REQUESTS

Request 1

Provide all documents regarding the efficacy of the ECM Additive in initiating, causing, 

enabling, promoting, or enhancing the biodegradation of plastics containing the ECM Additive. 

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5

Request 2

Provide all documents regarding whether or how to market ECM Additives as capable of 

initiating, promoting, causing, enhancing, or enabling the biodegradation of plastic. 

Request 3

Provide all documents regarding the duration of time for complete biodegradation of a 

plastic product containing the ECM Additive. 

Request 4

 Provide all documents regarding whether and how plastics containing ECM Additives 

will biodegrade in different disposal conditions. 

Request 5

Provide all documents regarding ASTM D5511 or ASTM D5526. 

Request 6

Provide all documents regarding any express or implied claims that ECM Additives 

initiate, cause, enable, promote, or enhance the biodegradation of plastics containing the ECM 

Additive, and specifically including the following representations: 

a. ECM Plastics will completely break down and decompose into elements found in 

nature within a reasonably short period of time after customary disposal; 

b. ECM Plastics will completely break down and decompose into elements found in 

nature within a reasonably short period of time in a landfill; 

c. ECM Plastics will completely break down and decompose into elements found in 

nature within a nine months to five years in a landfill; 

d. ECM Plastics will completely break down and decompose into elements found in 

nature within one year in a landfill; and 

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e. ECM Plastics have been shown to perform as stated in (a) through (d) under 

various scientific tests including, but not limited to, ASTM D5511. 

Request 7

Provide all documents that tend to call into question or disprove any express or implied 

claims that ECM Additives initiate, cause, enable, promote, or enhance the biodegradation of 

plastics containing the ECM Additive.

Request 8

Provide all documents regarding any tests conducted on ECM Additives or plastics 

containing ECM Additives purporting to show biodegradability of ECM Additives or plastics 

containing ECM Additives. 

Request 9

Provide copies of each different ECM advertisement (including those disseminated to or 

by ECM distributors) that represents, expressly or by implication, that ECM Additives initiate, 

cause, enable, promote, or enhance biodegradation of plastic. 

Request 10

Provide copies of any materials relating to any ECM Additive made available to any 

ECM Additive distributor or customer, including, but not limited to: packaging, clipart, seals, 

logos, other marketing materials, instructions or suggestions regarding making marketing claims, 

or instructions for the use or marketing of the ECM Additive. 

Request 11

Provide all documents, whether prepared by or for ECM or any other entity, including 

any advertising agency, regarding consumer perception, comprehension, or recall (including, but 

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7

not limited to, copy tests, marketing or consumer surveys and reports, penetration tests, recall 

tests, audience reaction tests, and communication tests) of: 

a. any advertisement, whether disseminated or not, that represents, expressly or by 

implication, that ECM Additives initiate, promote, or enhance biodegradation of 

plastic; and/or 

b. biodegradability in general. 

Request 12

 Provide all documents that support or call into question your contention that your 

customers or distributors are sophisticated purchasers. 

Request 13

 Provide all communications with customers, distributors, potential customers, or potential 

distributors regarding ECM Additives. 

Request 14

 Provide all documents regarding your strategy for selling the ECM Additive to customers 

or distributors, including any documents used for verbal sales communications or in preparation 

for verbal sales communications.

Dated: November 27, 2013 Respectfully submitted,

 /s/ Katherine Johnson 

 Katherine Johnson (202) 326-2185 

 Elisa K. Jillson (202) 326-3001

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Mailstop M-8102B 

Washington, DC 20580 

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8

CERTIFICATE OF SERVICE

I hereby certify that on November 27, 2013, I caused a true and correct copy of the paper 

original of the foregoing Complaint Counsel’s First Set of Requests for Production of Documents

to be served as follows: 

One electronic copy to Counsel for the Respondent: 

Jonathan W. Emord

Emord & Associates, P.C.

11808 Wolf Run Lane 

Clifton, VA 20124 

Email: jemord@emord.com 

Peter Arhangelsky

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: parhangelsky@emord.com 

Lou Caputo 

Emord & Associates, P.C. 

3210 S. Gilbert Road, Suite 4 

Chandler, AZ 85286 

Email: lcaputo@emord.com

I further certify that I possess a paper copy of the signed original of the foregoing 

document that is available for review by the parties and the adjudicator.

/s/ Katherine Johnson 

Katherine Johnson 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission

600 Pennsylvania Ave., NW, M-8102B 

Washington, DC 20580 

Telephone: (202) 326-2185 

Facsimile: (202) 326-2558 

Email: kjohnson3@ftc.gov 

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