**NO COPY OF THIS TRANSCRIPT MAY BE MADE PRIOR TO 5/7/09 

 UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW HAMPSHIRE 

 * * * * * * * * * * * * * * * * * * 

 * 

 UNITED STATES OF AMERICA * 

 * 06-cv-354-PB 

 v. * November 6, 2008 

 * 1:30 p.m. 

 GENERAL ELECTRIC COMPANY * 

 * 

 * * * * * * * * * * * * * * * * * * 

 DAY 3 

 AFTERNOON SESSION 

 TRANSCRIPT OF BENCH TRIAL 

 BEFORE THE HONORABLE PAUL J. BARBADORO 

 Appearances: 

 For the Government: Catherine A. Fiske, Esq. 

 Peter M. Flynn, Esq. 

 Laura J. Rowley, Esq. 

 Donald G. Frankel, Esq. 

 U.S. Department of Justice 

 Environmental Enforcement Section 

 For the Defendant: Peter A. Biagetti, Esq. 

 William M. Cowan, Esq. 

 Mintz, Levin, Cohn, Ferris, 

 Glovsky and Popeo, PC 

 Thomas H. Hill, Esq. 

 Ignacia Moreno, Esq. 

 General Electric Counsel 

 Court Reporter: Sandra L. Bailey, CSR, CRR 

 Official Court Reporter 

 United States District Court 

 55 Pleasant Street 

 Concord, NH 03301 

 (603)225-1454 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 1 of 63
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 1 I N D E X 

 2 

 3 

 4 Witness Direct Cross Redirect Recross 

 5 

 ALBERT CLARK 

 6 

 By Mr. Biagetti 5 

 7 By Ms. Rowley 22 

 8 

 9 

 10 

 11 

 12 

 13 

 14 

 15 

 16 

 17 

 18 

 19 

 20 

 21 

 22 

 23 

 24 

 25 

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 1 BEFORE THE COURT 

 2 THE COURT: Did you want to deal with the 

 3 Exhibit 35 issue now or do you want to finish with the 

 4 testimony of this witness and then deal with the 

 5 exhibit? 

 6 MR. COWAN: Your Honor, we will deal with it 

 7 very briefly in a manner I think you'll find to your 

 8 liking hopefully. 

 9 THE COURT: All right. 

 10 MR. COWAN: Ms. Fiske and I have discussed the 

 11 matter. Your Honor, we will withdraw our objection but 

 12 it's specifically agreed, with the court's willingness, 

 13 to allow, if you will, counter highlighting designating 

 14 those portions in the memo with a -- well, I'll 

 15 represent to your Honor, this will not be, I'm going to 

 16 highlight everything else, this is going to be quite 

 17 judicious and we pledge to get that to you by 5 p.m. 

 18 today. 

 19 THE COURT: I think that's useful because as I 

 20 was thinking through the issue whether it was sponsored 

 21 or not, it would seem that there would be a strong 

 22 argument for the admission of the document under the 

 23 residual exception to the hearsay rule because this 

 24 clearly is, from GE's perspective, one of the best most 

 25 reliable compilations of evidence as to what actually 

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 4 

 1 happened, it's something that the company carefully 

 2 prepared in anticipation of litigation where errors that 

 3 were damaging to GE, the company would have taken care 

 4 to avoid, so I think from GE's perspective it's probably 

 5 the best available evidence we have as to what really 

 6 was going on at that site in the details of the 

 7 manufacturing process and the way that waste was 

 8 treated, and in that sense I think it's highly useful to 

 9 both sides just to give me the background information 

 10 that I need, so, I think that's good way to resolve it. 

 11 I guess what I would say to you is this. It 

 12 looks to me like, despite my best efforts, GE's going to 

 13 get its wish here because you've given me so much stuff 

 14 to read that I can't read it this afternoon, I'm going 

 15 to have to read it Friday and over the weekend. So I 

 16 think realistically you're going to have to come back 

 17 Monday and make your closing arguments. It's just too 

 18 much stuff for me to read. I mean, I know it wasn't 

 19 your conscious strategy to burden me. 

 20 MR. BIAGETTI: We had two purposes, judge, you 

 21 may have heard that, but I thank you. 

 22 THE COURT: So we're going to have to have the 

 23 closing argument on Monday. 

 24 MR. COWAN: Well, your Honor, with that 

 25 realization, respectfully may I have until tomorrow 

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 1 morning to provide -- 

 2 THE COURT: Yeah, give it to me tomorrow 

 3 morning, submit it. You don't even need to come in 

 4 tomorrow, today just designate what you want me to read, 

 5 and I'll read whatever you want me to read, and then 

 6 Monday you can come in and we will do the closing 

 7 arguments on Monday. So if you get it to me, you don't 

 8 have to physically be here, my sense is you can all go 

 9 home for the weekend and just come back on Monday, and 

 10 so anything you need to do with me about the documents, 

 11 deal with it today, and I'll read the stuff on Friday 

 12 and over the weekend to the extent necessary, then I'll 

 13 be in a position to rule on Monday, you can make closing 

 14 arguments, and then I'll rule. 

 15 You can see my style. When you're making your 

 16 closing arguments, expect to be interrupted and to be 

 17 asked a bunch of questions, or asked to respond to 

 18 argument. Just talking to me isn't that useful. I like 

 19 dialogue. 

 20 Okay, so you want to bring the witness back 

 21 and we will finish. 

 22 MR. BIAGETTI: Thanks, judge. 

 23 DIRECT EXAMINATION cont'd 

 24 BY MR. BIAGETTI: 

 25 Q. Good afternoon, Mr. Clark. 

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 1 A. Good afternoon. 

 2 Q. We were talking about Mr. Fletcher's letter 

 3 and your reactions to it before we broke for lunch. Mr. 

 4 Fletcher in his letter to you also concluded with a 

 5 paragraph about as far as future sales are concerned. 

 6 Do you see that one? 

 7 A. Yes, I do. 

 8 Q. And do you remember reading that one at that 

 9 time? 

 10 A. That he wants to leave the door open to resume 

 11 purchasing these drums of scrap Pyranol from us. 

 12 Q. And did you view that as a good or bad thing? 

 13 A. That's a good thing. 

 14 Q. Why is that? 

 15 A. That would be generating some income to GE. 

 16 Q. Now -- 

 17 A. As opposed to having to pay for disposal of 

 18 it. 

 19 Q. You mentioned before lunch, I think, that 

 20 there were a couple of reasons why you wanted Fletcher 

 21 to resume buying. You said it was -- we can make a 

 22 little money, but also we were running out of room. 

 23 Have I got that basically right? 

 24 A. That was two factors. 

 25 Q. Did you consider at the time any other options 

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 1 for solving the part about running out of room in the 

 2 storage area? 

 3 A. Other options were to have a chemical disposal 

 4 company pay -- GE pay them to dispose of the material. 

 5 Another option was if we're running out of room, finding 

 6 more room until the financial problems or such were 

 7 resolved, and until he could start taking, buying more 

 8 Pyranol from us. 

 9 Q. Do you recall whether you explored either one 

 10 of those options? 

 11 A. I did not personally explore any of those 

 12 options. I held out for the resumption of sales to 

 13 Fletcher. 

 14 Q. Why hold out for that rather than explore one 

 15 of those other two options you just mentioned? 

 16 A. Highest probability of success was staying 

 17 with Fletcher. He had a use for the material. We had a 

 18 good relationship for 15 years. It was the easiest 

 19 safest thing to stay with Fletcher. We would continue 

 20 to get payment for the material that he took and for 

 21 material he could use in his product. It just made good 

 22 business sense to do everything we could to stay with 

 23 Fletcher. 

 24 Q. I'm going to show you next a document that has 

 25 already been admitted, judge, as GE Exhibit 14. It 

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 1 appears to be a memo from E. Jones to you, Mr. Clark, 

 2 dated February 8, 1968, asking if you would, the last 

 3 paragraph, see what action can be taken toward 

 4 collecting this balance, meaning the sale of used 

 5 Pyranol to Milford Paint Works. Have you seen that 

 6 document? 

 7 A. Yes. 

 8 Q. Have you seen it before? 

 9 A. Yes. 

 10 Q. Do you recall getting that? 

 11 A. Again, I surmise I got it. 

 12 Q. Do you have any memory as you sit here today 

 13 that in 1968 you got a copy of it? 

 14 A. I got that copy. 

 15 Q. What, if anything, did you do in response to 

 16 this request from Mr. Jones that you take some action 

 17 toward collecting this balance? 

 18 A. Very shortly after we got this letter we 

 19 received a February letter from Fletcher raising 

 20 concerns about quality. At the time that this letter 

 21 was written, February 8, 1968, we had not heard anything 

 22 of any problems with quality of the product sold to 

 23 Fletcher, bought by Fletcher, so we were -- we hadn't 

 24 taken any action on this, but we received the 

 25 February 16th letter which we talked about just a few 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 8 of 63
 9 

 1 minutes ago where he raises the whole list of alleged 

 2 problems with quality. 

 3 THE COURT: Could I have my clerk get me 

 4 Defendant's Exhibit 14, is it? 

 5 MR. BIAGETTI: Yes, 14. 

 6 Q. And so what if anything did you do in 

 7 immediate response to getting this memo? 

 8 A. I remember talking with my boss, Rob Abbe, 

 9 bringing this into the equation of things to consider. 

 10 Not necessarily to react directly with Fletcher on 

 11 receipt of this, but again, to take Mr. Jones' concerns 

 12 about the balance owed to GE, take that into 

 13 consideration for solving multiple problems we were 

 14 having with scrap Pyranol. 

 15 Q. And I think your testimony before the break, 

 16 but I want to make sure I'm correct, is that after the 

 17 call with Fletcher you never had a conversation with 

 18 him, is that right? 

 19 A. No, I did not. 

 20 Q. Or anybody else at Fletcher Paint? 

 21 A. Not to my knowledge. 

 22 Q. Now, there's a handwritten note on this 

 23 exhibit, Mr. Clark, I'll zoom in on it as best I can, 

 24 that I believe says per Al Clark. Monsanto Chem is 

 25 analyzing similar material and on basis of their report 

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 1 he will make a decision on validity of Milford Paint 

 2 Works claim. See attached letter. And again it's from 

 3 E. Jones, dated May 28, 1968. Do you see that? 

 4 A. Yes, I do. 

 5 Q. Does that refresh your memory as to what this 

 6 Monsanto analysis was that's being referenced here? 

 7 A. Yes, it does. 

 8 Q. What was it? 

 9 A. The conversations between all our management 

 10 team were centered around trying to resolve the problem 

 11 of unpaid bills for material and also to resume sale of 

 12 this material to Fletcher's Paint. Mr. Barker was the 

 13 senior buyer who had dealt with Monsanto Chemical 

 14 Corporation in the purchase of Aroclor which was 

 15 converted by whatever process we needed, Pyranol out of 

 16 it, and so Mr. Abbe and Mr. Barker had a conversation 

 17 that I heard about afterwards. I was not present at 

 18 this conversation, but I was told about it. That Mr. 

 19 Barker was going to ask Monsanto -- 

 20 MS. ROWLEY: Objection. 

 21 Q. Mr. Clark, Mr. Clark, let me ask you the next 

 22 question. Do you know who, if anybody at GE, requested 

 23 the analysis? 

 24 A. Who requested the analysis? 

 25 Q. Yes, sir, did you? 

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 1 A. No, it was not me. 

 2 Q. Do you know who it was? 

 3 A. It was Mr. Barker. 

 4 Q. Okay. Did you know why it was requested? 

 5 A. To attempt to validate or disprove the 

 6 statements in Mr. Fletcher's letter dated February 16th. 

 7 Q. Did you agree or disagree with that? 

 8 A. I thought it had merit. I thought it was a 

 9 good chance that we could learn something from that 

 10 examination of material. 

 11 Q. Did you have any personal involvement in the 

 12 analysis done? 

 13 A. I don't know anything about the analysis. I 

 14 was not present and I don't know when it was. 

 15 Q. Setting aside the methodology of the analysis, 

 16 do you know anything about the material that was tested? 

 17 A. All that I can say I know about the material, 

 18 it was material in drums still located at Hudson Falls 

 19 in the storage yard, left behind for whatever reason in 

 20 Hudson Falls, and it was not from any of the material 

 21 that had been taken by Fletcher and was located at the 

 22 Fletcher Paint Works. 

 23 Q. Do you know whether or not GE paid Monsanto to 

 24 do the analysis? 

 25 A. I don't know. I can offer an opinion, but if 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 11 of 63
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 1 that's not allowed, I won't. 

 2 Q. Did you ever, in your department in the bills 

 3 that you handled, ever see anything from Monsanto on 

 4 this subject? 

 5 A. No, I did not. 

 6 Q. Did you ever learn anything about the results 

 7 of the Monsanto analysis? 

 8 A. Yes, I did. 

 9 Q. What did you learn? 

 10 A. I learned that there was some evidence that 

 11 some of the things that were in Mr. Fletcher's letter 

 12 did exist in the samples that were still at Hudson 

 13 Falls. 

 14 Q. And when you say some of the things mentioned 

 15 in Mr. Fletcher's letter, and just to recap, he said 

 16 that some of the drums were one-quarter or one-half 

 17 full. Was that one of the things that was the result of 

 18 the analysis? 

 19 A. No, that was not. 

 20 Q. He said that some of the drums were more than 

 21 one-half water. Was that part of the Monsanto analysis? 

 22 A. Yes, he found some water. 

 23 Q. He said that something had been added to 

 24 neutralize the Pyranol. Was that -- 

 25 A. That never came up. It was never mentioned. 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 12 of 63
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 1 Q. He said that the drums contained a coal tar 

 2 emulsion which turned the Pyranol black. Did that come 

 3 out of the Monsanto analysis? 

 4 A. It did not. 

 5 THE COURT: Counsel, I just want to be sure 

 6 I'm not missing something. The Monsanto analysis is, 

 7 there's a document that is the Monsanto analysis, right? 

 8 Don't we have a document that reflects the results of 

 9 the Monsanto analysis? 

 10 MR. BIAGETTI: We have a memorandum from Mr. 

 11 Clark which is coming up next, but it's not the results 

 12 of -- it's not a Monsanto document or -- 

 13 THE COURT: So we don't have the actual 

 14 results of Monsanto, we have Mr. Clark's report of the 

 15 results? 

 16 MR. BIAGETTI: Yes, we have a memorandum 

 17 coming up next, yes. 

 18 THE COURT: I mean, wasn't there something 

 19 from Monsanto to Clark, somebody at GE? 

 20 MR. BIAGETTI: I'll ask him. 

 21 Q. BY MR. BIAGETTI: Did you ever see any written 

 22 report from Monsanto? 

 23 A. All I received was a verbal report from Mr. 

 24 Barker. I saw nothing in writing. 

 25 THE COURT: So Mr. Barker is from Monsanto? 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 13 of 63
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 1 A. Mr. Barker is my counterpart for GE who buys 

 2 the material, who bought the Aroclor from Monsanto. 

 3 THE COURT: I'm confused. Get out the memo, 

 4 please. 

 5 MR. BIAGETTI: Yes. If I'm anticipating your 

 6 Honor correctly, this is Defendant's Exhibit 17. It's a 

 7 memo by Mr. Clark, and it talks about in the second 

 8 paragraph a review of this problem and analysis of this 

 9 material by Monsanto. 

 10 THE COURT: Okay. So what he's talking about 

 11 now is, he's talking about the -- I'm confused. You 

 12 have to go through the whole line of questioning again 

 13 because I don't understand it. 

 14 Q. BY MR. BIAGETTI: Okay. You mentioned that 

 15 you did get a verbal report on the results? 

 16 A. I got this information verbally from Mr. 

 17 Barker. 

 18 Q. Okay. And what did you conclude once you got 

 19 that information from him about the results of the 

 20 Monsanto analysis? 

 21 A. Two of the points that Mr. Fletcher -- 

 22 THE COURT: Can I ask you, is what's in that 

 23 memo on the screen, what you concluded? 

 24 A. Yes, right here, that's what I was going to 

 25 say. 

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 1 MR. BIAGETTI: I was asking for his 

 2 independent memory, but I can certainly refresh it with 

 3 this. 

 4 THE COURT: He's not going to remember. 

 5 Realistically, this is many, many, many years ago, he's 

 6 not going to remember what the analysis was about. He's 

 7 going to look at the document which is the only thing we 

 8 have, and that may refresh your memory somewhat. For 

 9 the most part, is what you know about the Monsanto 

 10 analysis in that document? 

 11 A. Yes. 

 12 THE COURT: Okay. 

 13 A. And I do recall it. I do have a recollection. 

 14 I do have a recollection about that document only 

 15 because the amount of time I spent carefully thinking 

 16 through the response to finance, talking it through Mr. 

 17 Abbe, my boss, we formulated the information based on 

 18 the information collected from -- that Monsanto gave to 

 19 Mr. Barker, our buyer, our senior buyer, and the two 

 20 points that we agreed we found evidence were, there was 

 21 water in the drums and there was some amount of 

 22 trichloroethylene. I don't remember where the 

 23 22 percent came from. I don't remember that. But I 

 24 know that there was evidence they found some 

 25 trichloroethylene in the drums, they found some water in 

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 1 the drums. Those are the two. 

 2 THE COURT: Okay. 

 3 MR. BIAGETTI: Thank you, and thank you, your 

 4 Honor. 

 5 Q. BY MR. BIAGETTI: So, let's stick with this 

 6 document now, Mr. Clark, which is GE Exhibit 17, a memo 

 7 from you to Mr. Humphrey, the manager of general 

 8 accounting on August 6, 1998. And it's approved by your 

 9 boss, Mr. Abbe; right? 

 10 A. That's correct. 

 11 Q. Who wrote the memo? 

 12 A. I authored it. I wrote it. 

 13 Q. Did anyone approve it? 

 14 A. Mr. Abbe approved it prior to him saying it. 

 15 He knew what I was going to write. 

 16 Q. Did you have discussion with Mr. Abbe before 

 17 sending this to Mr. Humphrey? 

 18 A. Several. 

 19 Q. And you mention here that there was a review 

 20 of this problem and an analysis of the material by 

 21 Monsanto; correct? 

 22 A. Correct. 

 23 Q. You've already testified to what you did in 

 24 that regard for his Honor; correct? 

 25 A. Correct. 

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 1 Q. And you conclude by saying it is our 

 2 recommendation that the outstanding accounts receivable 

 3 in the full amount of $6,993.75 be written off. What 

 4 was the basis for that recommendation? 

 5 A. The biggest motivation was to retain Fletcher 

 6 Paint Works as a customer of GE, and we felt that there 

 7 was enough evidence that some of the things he claimed 

 8 could be true, and that to write off the $7,000 figure 

 9 was to follow up on Mr. Fletcher's offer to continue to 

 10 resume this agreement and arrangement in the future, and 

 11 it was our motivation to keep the door open and to use 

 12 several words that others used, keep the door open for 

 13 resuming the arrangement where he would buy scrap 

 14 Pyranol from GE. 

 15 THE COURT: Can I ask you a question about 

 16 your memo. In the second paragraph there you say 

 17 through a review of this problem and an analysis of this 

 18 material by Monsanto, I want you to tell me as best you 

 19 can, when you use the phrase this material, what were 

 20 you referring to? 

 21 A. Material that was in our parking storage -- 

 22 our storage yard in Hudson Falls. 

 23 THE COURT: So it was your understanding that 

 24 what had been sent to Monsanto to analyze was -- 

 25 A. Can I stop, please. 

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 1 THE COURT: Yes. 

 2 A. Nothing was sent to Monsanto to analyze. 

 3 THE COURT: Oh, well, then, how did Monsanto 

 4 do the analysis without looking at the material? 

 5 A. He looked at the material. He was in Hudson 

 6 Falls. 

 7 THE COURT: He came and took samples? 

 8 A. He did the examination at our plant in our 

 9 storage yard, yes. 

 10 THE COURT: So when you refer to this 

 11 material, you're referring to material that was in the 

 12 scrap Pyranol area at the plant? 

 13 A. Correct. 

 14 THE COURT: And your recollection or your 

 15 understanding was at the time, that the man from 

 16 Monsanto came out and took his own samples? 

 17 A. Correct. 

 18 THE COURT: Were you there when that happened? 

 19 A. No, I was not. 

 20 THE COURT: So it's an understanding you have 

 21 from somebody else? 

 22 A. Mr. Barker. 

 23 THE COURT: I see, okay. 

 24 A. Okay. 

 25 THE COURT: All right. 

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 1 Q. BY MR. BIAGETTI: Did you have a belief at 

 2 that time about the material that Fletcher had opposed 

 3 to what Monsanto sampled? 

 4 A. I had a firm belief that we did not allow him 

 5 to take half full drums of scrap Pyranol. I can't 

 6 believe that we let him take drums of Pyranol that had 

 7 22 percent TCE. 

 8 Q. When you say you can't believe? 

 9 A. The controls and processes -- 

 10 THE COURT: Sustained. 

 11 A. -- we had in time should prevent that. 

 12 THE COURT: Sustain the objection. 

 13 Q. Do you recall what your belief, if any, on 

 14 that subject was at the time that you wrote this memo? 

 15 MS. ROWLEY: Objection. 

 16 Q. Okay, I'll move on. What if anything -- well, 

 17 let me ask you. There's a notation as well on 

 18 Exhibit 17, handwriting on the lower right, discussed 

 19 with DSB on 8/13/68, okay to write off, and then 

 20 someone's initials which could be DWH, but I'm not sure. 

 21 Do you see that? 

 22 A. Yes, I see that. 

 23 Q. Who is DSB? 

 24 A. Donald S. Bates, manager of finance for the 

 25 capacitor department. 

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 1 Q. Did you have discussion with Mr. Bates? 

 2 A. No, I did not. 

 3 Q. Do you know what, when it says okay to write 

 4 off, do you recall what -- well, did you ever have any 

 5 discussion with anybody else after writing this memo 

 6 about whether or not there would indeed be a write-off? 

 7 A. No, I didn't. 

 8 Q. When did you move on to your next job in GE? 

 9 A. In August of 1968. 

 10 Q. Do you remember how much longer after 

 11 August 6th? 

 12 A. Not much longer. 

 13 Q. Where was the new job again, I'm sorry? 

 14 A. Specialist manufacturing information systems 

 15 for the same department. 

 16 Q. In the same building? 

 17 A. Same building, and Mr. Abbe was still my new 

 18 manager's boss. 

 19 Q. Okay. Still have conversations with Mr. Abbe 

 20 after moving to the new job? 

 21 A. I don't recall any conversations about the 

 22 scrap Pyranol with him after I went on the new job. 

 23 Q. All right. And how long were you at Hudson 

 24 Falls after you moved to the new job? 

 25 A. I left Hudson Falls in '73 to go to Virginia. 

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 1 Q. Did you ever hear from Mr. Fletcher again? 

 2 A. Never. 

 3 Q. Did that seem like a good or bad thing to you 

 4 or never occurred to you? 

 5 A. It sounded good because by him not pursuing 

 6 the issues any further, it was taken by us to mean he 

 7 accepted the write-off. 

 8 Q. Was there ever a time -- 

 9 MS. ROWLEY: Objecting, speculation. 

 10 THE COURT: I'm not going to attach any 

 11 significance to it. 

 12 Q. Was there ever a time up until the time you 

 13 made this recommendation that you thought that Mr. 

 14 Fletcher was going to dump or discard any of the Pyranol 

 15 that he picked up from GE? 

 16 A. I never had that idea at all, not with our 

 17 dealings with him from the past, no, I never expected he 

 18 would do that. Never even thought about it. Never even 

 19 considered that would be an action he might take. 

 20 THE COURT: I think there's a dispute between 

 21 the parties here, sir, as to whether after this write- 

 22 off, whether Fletcher purchased additional Pyranol from 

 23 GE. Do you have any actual knowledge of whether he did? 

 24 A. I have no knowledge of what he did after I 

 25 left -- after the write-off. 

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 1 THE COURT: After the write-off. 

 2 MR. BIAGETTI: If I could have just a second. 

 3 (Pause.) 

 4 Q. BY MR. BIAGETTI: Did you ever learn for 

 5 certain whether or not the debt was indeed written off 

 6 by GE? 

 7 A. I never learned of that, no. 

 8 MR. BIAGETTI: Okay, nothing more, thanks. 

 9 THE COURT: Thank you. Cross-examination. 

 10 CROSS-EXAMINATION 

 11 BY MS. ROWLEY: 

 12 Q. Good afternoon, Mr. Clark. 

 13 A. Good afternoon. 

 14 Q. Mr. Clark, you stated earlier that at the time 

 15 you received the letter from Mr. Fletcher your reaction 

 16 was disbelief; right? 

 17 A. That's correct. 

 18 Q. You thought that he was trying to get out of 

 19 paying his bill? 

 20 A. That's correct. 

 21 Q. And essentially you believed he was telling a 

 22 lie when he stated that a large percentage of the drums 

 23 he had were garbage, is that right? 

 24 A. I did not believe that. 

 25 Q. Okay. And after receiving Mr. Fletcher's 

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 23 

 1 letter, GE had someone from Monsanto test the drums, 

 2 test some drums of scrap Pyranol; correct? 

 3 A. That's not true. 

 4 Q. You didn't have someone from Monsanto -- 

 5 A. I did not -- 

 6 THE COURT: Excuse me, sir, wait a minute. 

 7 Only one person can talk at a time. So until she 

 8 finishes asking her question, you can't begin your 

 9 answer. 

 10 A. Correct. 

 11 THE COURT: Put a question to the witness, 

 12 please. 

 13 Q. Sure. We just got done discussing that after 

 14 you received the letter from Mr. Fletcher, GE had 

 15 someone from Monsanto test drums of the scrap Pyranol 

 16 that were still at GE; correct? 

 17 A. Someone from what company? 

 18 Q. Monsanto. 

 19 A. Monsanto, yes, that is true. 

 20 Q. And the person from Monsanto found that the 

 21 material it tested contained anything from water to 

 22 trichloroethylene; correct? 

 23 A. That's correct. 

 24 Q. And in your words you wrote a memo that said 

 25 that Milford had a valid claim; correct? 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 23 of 63
 24 

 1 A. Had a valid claim is my words, yes. 

 2 Q. Okay. And you wrote that the material that GE 

 3 had sent to Fletcher's, quote, should have been disposed 

 4 of. Is that right? 

 5 A. If it was like that, yes. 

 6 Q. And looking at your memo, you used the phrase 

 7 acceptable method of disposal; correct? 

 8 A. Correct. 

 9 Q. And by that term, acceptable method of 

 10 disposal, you meant you should have paid someone to 

 11 dispose of it; correct? 

 12 A. We would have to pay a chemical disposal firm 

 13 to dispose of it, yes. 

 14 Q. Send it to something like send it to a 

 15 landfill? 

 16 A. I didn't hear you. 

 17 Q. Does that mean you would have sent it to a 

 18 landfill? 

 19 A. No, no, no. 

 20 Q. You would have paid a chemical disposal 

 21 company to take it away? 

 22 A. Correct, it would have been -- Monsanto is not 

 23 a chemical disposal firm. It would have been a chemical 

 24 disposal company, and again, we didn't do it, so I can't 

 25 supply who it would be. 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 24 of 63
 25 

 1 Q. And your conclusion in this memo is that 

 2 sending this scrap Pyranol to Milford had saved GE 

 3 money; correct? 

 4 A. Correct. 

 5 Q. And the amount of money that it saved GE was 

 6 $3,248; correct? 

 7 A. That's as an alternative, yes. 

 8 Q. And Mr. Clark, it's true that GE wanted to 

 9 keep selling scrap Pyranol to Mr. Fletcher? 

 10 A. That is true. 

 11 Q. It's fair to say you would have been happy to 

 12 have Mr. Fletcher come back and take more scrap Pyranol? 

 13 A. Yes. 

 14 Q. I'd like to look at Mr. Fletcher's letter 

 15 again. The second page. Could you look at the fifth 

 16 and sixth paragraph on this page. Actually that's not 

 17 what I -- sorry. The second to last paragraph. 

 18 A. As far as? 

 19 Q. Yes, would you take a look at that paragraph. 

 20 A. Okay. 

 21 Q. Mr. Fletcher is discussing future sales and he 

 22 mentions that it wouldn't be worth it for him to haul 

 23 more scrap Pyranol unless GE can, quote, tighten up as 

 24 to what is Pyranol and what is not and furnish 

 25 reasonably clean drums. 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 25 of 63
 26 

 1 Mr. Clark, GE did not make any changes to the 

 2 way it collected and stored scrap Pyranol in order to 

 3 respond to Mr. Fletcher's comment, did it? 

 4 A. Yes. 

 5 Q. It did not or did? 

 6 A. Ask the question again. 

 7 Q. Did GE make any changes to the way that it 

 8 collected or stored scrap Pyranol in response to Mr. 

 9 Fletcher's comment here? 

 10 A. No. 

 11 MR. BIAGETTI: Objection, only because he said 

 12 I believe on direct that he had no direct personal 

 13 knowledge of how it was collected. 

 14 THE COURT: I think that's true. I take it as 

 15 he doesn't really know. 

 16 A. That's the real answer, I don't really know. 

 17 On the other hand, I don't know of anything that was or 

 18 was not changed. My belief is that nothing was changed 

 19 because it didn't need to change, but that's my belief. 

 20 Q. Because there was nothing to tighten up? 

 21 A. That's correct. 

 22 Q. Because scrap Pyranol is scrap material; 

 23 correct? 

 24 A. That's correct. 

 25 Q. And it was not intended to be pure; correct? 

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 27 

 1 A. That's correct. 

 2 Q. And by definition scrap Pyranol could contain 

 3 impurities? 

 4 A. It's of no further use to General Electric in 

 5 manufacturing capacitors. 

 6 Q. Was that a yes or no? You said it was no use 

 7 to GE but the question was the -- 

 8 A. The answer -- 

 9 MR. BIAGETTI: Objection. 

 10 THE COURT: Whoa, whoa whoa. 

 11 A. I think -- 

 12 THE COURT: Wait, wait. Sir, sir, can I tell 

 13 you, I got to run things, so if I tell you to stop, 

 14 please stop, okay. Let's have counsel ask a question 

 15 again. Before she -- you answer, let's give defense 

 16 counsel chance to object. So ask your question again. 

 17 Q. Okay. Scrap Pyranol could contain impurities; 

 18 correct? 

 19 A. I don't understand your question. 

 20 THE COURT: You don't understand the question 

 21 isn't it true that scrap Pyranol contains impurities? I 

 22 think that's a given. That part is easy. We haven't 

 23 got to the hard part yet. Everybody knows scrap Pyranol 

 24 contains impurities. 

 25 A. Exactly. I don't understand the question. 

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 28 

 1 THE COURT: Don't worry about trying to be 

 2 trapped. Just try to answer the question that's asked. 

 3 A. The answer is yes, it does have impurities and 

 4 everybody knew it. 

 5 Q. Okay. After this memo recommending a 

 6 write-off, you never called Mr. Fletcher to ask what 

 7 they were going to do with the scrap Pyranol, did you? 

 8 A. No, I did not. 

 9 Q. So you didn't confirm with him whether he 

 10 could use the material that he complained about in his 

 11 letter, did you? 

 12 A. I'm having a hard time understanding. 

 13 THE COURT: I think he's having trouble 

 14 hearing the words. It's not so much the matter of 

 15 understanding. 

 16 A. I can't hear. 

 17 THE COURT: Can't hear. 

 18 A. Try again, please. 

 19 Q. Okay. You didn't confirm with Mr. Fletcher 

 20 that whether or not he could use the material that he 

 21 complained about in his letter, did you? 

 22 A. That's right, yes, I did not confirm. 

 23 Q. Okay. And you left the decision on how 

 24 ultimately to dispose of that scrap Pyranol with Mr. 

 25 Fletcher; correct? 

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 29 

 1 A. Correct. 

 2 Q. Okay. Mr. Clark, is it fair to say that you 

 3 personally didn't know much of anything about Fletcher's 

 4 Paint Works? 

 5 A. That's fair to say. 

 6 Q. To your knowledge the company manufactured 

 7 paint? 

 8 A. Correct. 

 9 Q. And you assumed Fletcher's to be a small paint 

 10 company; correct? 

 11 A. Yes, I did. 

 12 Q. Local to New Hampshire? 

 13 A. Yes, I did. 

 14 Q. And beyond that you didn't know anything else 

 15 about the company? 

 16 A. I did not, no. 

 17 Q. And you never tried to find out; correct? 

 18 A. I never found out -- never tried to find out. 

 19 Q. And you once had a telephone conversation with 

 20 Mr. Fletcher; correct? 

 21 A. What -- ask the question again. 

 22 Q. You once, at least once you had a telephone 

 23 conversation with Mr. Fletcher? 

 24 A. At least once. 

 25 Q. January 1968? 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 29 of 63
 30 

 1 A. Yes. 

 2 Q. And you were on the telephone with him and you 

 3 spoke with him about whether or not he could use anymore 

 4 scrap Pyranol; correct? 

 5 A. That's right. 

 6 Q. Okay. But during this telephone conversation 

 7 you never asked Mr. Fletcher what he was using scrap 

 8 Pyranol for, did you? 

 9 A. No, I did not. 

 10 Q. When you were a senior buyer of indirect 

 11 material, GE was manufacturing a lot of power 

 12 capacitors, wasn't it? 

 13 A. That's right. 

 14 Q. And that caused GE to generate a lot of scrap 

 15 Pyranol? 

 16 A. Yes, it did. 

 17 Q. And GE had more scrap Pyranol than Fletcher's 

 18 could take from you; correct? 

 19 A. More than he could use, yes. 

 20 Q. Okay. And at that time you were working with 

 21 another buyer, Mr. Barker? 

 22 A. Yes. 

 23 Q. All right. And you and Mr. Barker made some 

 24 effort to try and find other outlets besides Fletcher's 

 25 that might want to take scrap Pyranol, didn't you? 

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 31 

 1 A. That's true. 

 2 Q. Okay. And among your efforts was a telephone 

 3 call to Monsanto; correct? 

 4 A. I did not make a telephone call to Monsanto. 

 5 Q. Mr. Barker made the call? 

 6 A. It would have been Mr. Barker. 

 7 Q. Okay. And Monsanto had no advice to offer you 

 8 on how to get rid of the scrap Pyranol? 

 9 A. That's what Mr. Barker told me. 

 10 Q. Okay. And your efforts also included a 

 11 telephone call to GE's internal consultants in 

 12 Schenectady, New York; right? 

 13 A. I have no knowledge of that. 

 14 Q. You don't recall the telephone call? 

 15 A. I never called. 

 16 Q. Okay. However, in your efforts to find other 

 17 outlets for scrap Pyranol, you personally never 

 18 approached another paint company to ask if they would be 

 19 interested in scrap Pyranol? 

 20 A. No, I did not. 

 21 Q. And to your knowledge Mr. Barker did not do 

 22 that either? 

 23 A. To my knowledge he did not. 

 24 Q. Okay. At the time you were a senior buyer for 

 25 indirect materials, you weren't familiar with the term 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 31 of 63
 32 

 1 plasticizer, were you? 

 2 A. No, I was not. 

 3 Q. You were familiar with the term Aroclors; 

 4 correct? 

 5 A. Yes, I was. 

 6 Q. But you weren't familiar with various types of 

 7 Aroclors, were you? 

 8 A. No, I wasn't, if there were different types. 

 9 Q. And at the time you were a senior buyer, you 

 10 didn't know whether Aroclors could be used to 

 11 manufacture paint, did you? 

 12 A. Ask the question again, please. 

 13 Q. At the time you were a senior buyer, you 

 14 didn't know whether Aroclors could be used to 

 15 manufacture paint, did you? 

 16 A. I didn't know that, no. 

 17 Q. During your time as senior buyer for indirect 

 18 materials there was some chemicals that GE paid to 

 19 dispose of; correct? 

 20 A. That's correct. 

 21 Q. And one of those materials was 

 22 trichloroethylene, wasn't it? 

 23 A. That's correct. 

 24 Q. Okay. While you were senior buyer of indirect 

 25 material, is it fair to say that GE had no restrictions 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 32 of 63
 33 

 1 on selling scrap Pyranol to Fletcher's? 

 2 A. That's correct. 

 3 Q. Okay. Whatever he could take, you would let 

 4 him take? 

 5 A. That's correct. 

 6 Q. So any kind of scrap Pyranol would be -- any 

 7 kind of scrap Pyranol would be sold to Fletcher's; 

 8 correct? 

 9 A. Anything that he agreed to take and pay us 

 10 for. It wasn't a one way decision, it was a mutual 

 11 decision. 

 12 Q. Thank you. 

 13 MS. ROWLEY: Can I have just a moment. 

 14 (Pause.) 

 15 MS. ROWLEY: Actually, I would like to see 

 16 Fletcher's letter one more time. Can I see the second 

 17 page. 

 18 Q. BY MS. ROWLEY: Looking at the, I think it's 

 19 the third paragraph from the bottom, we shall expect 

 20 freight, Mr. Fletcher has offered to send the drums of 

 21 scrap Pyranol that he can't use or that he's complaining 

 22 about in his letter back to GE. Is that something that 

 23 you had any conversations about with other people at GE? 

 24 A. I talked to Mr. Abbe about this whole issue of 

 25 paying for rejected material. 

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 34 

 1 Q. And that was part of your analysis that it was 

 2 a cost -- 

 3 A. That was part of the analysis that the cost to 

 4 determine what material was rejected, as far as Fletcher 

 5 was concerned, and what was good, was going to cost us 

 6 time -- take a person's activities away from his regular 

 7 job, send a chemist up there. 

 8 Q. So it was concluded that that was not an offer 

 9 you were interested in pursuing? 

 10 A. That's right. 

 11 MS. ROWLEY: Okay, thank you, Mr. Clark. 

 12 A. You're welcome. 

 13 THE COURT: Can you put up Defendant's 

 14 Exhibit 17 on the document camera again, Mr. Biagetti. 

 15 I want to ask you about some of the cost information 

 16 here. You say in the second to the last paragraph that 

 17 the value of the drum to GE at that time was a $1.25 per 

 18 drum. 

 19 THE WITNESS: Yes. 

 20 THE COURT: And would that be based on your 

 21 personal knowledge or some research you had done at the 

 22 time? 

 23 THE WITNESS: That's research -- I found out 

 24 what the deposit amount was, and the $1.25 was the 

 25 deposit that we lose on that. 

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 35 

 1 THE COURT: Help me understand what that 

 2 means, the deposit amount. 

 3 THE WITNESS: When Monsanto sold us the 

 4 Pyranol -- Aroclor, he charged us a deposit for the drum 

 5 that we would get back if we returned the drum. 

 6 THE COURT: I see. 

 7 THE WITNESS: As opposed to returning the drum 

 8 our practice was to put scrap Pyranol into the drum and 

 9 sell the drums of scrap Pyranol to Fletcher. 

 10 THE COURT: I see. So that was the amount of 

 11 the deposit that you had been charged by Monsanto that 

 12 you would lose for every drum? 

 13 THE WITNESS: That's correct. 

 14 THE COURT: I see. Do you know whether that 

 15 would represent the going rate for a used drum, 

 16 55-gallon drum at that time? 

 17 THE WITNESS: I had a -- 

 18 THE COURT: Because I know you bought some 

 19 used drums at various times you talked about, and I 

 20 wondered if you knew what the cost of the drums were. 

 21 THE WITNESS: I can't answer that question. 

 22 It's too far back. 

 23 THE COURT: You just don't remember. 

 24 THE WITNESS: I just don't remember all of the 

 25 arithmetic I went through for that. 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 35 of 63
 36 

 1 THE COURT: The 50¢ per drum to dispose of 

 2 cost, was that based on some either pre-existing 

 3 knowledge you had or some research you did in connection 

 4 with this memo? 

 5 THE WITNESS: It was a reasonable estimate of 

 6 what it would probably cost us. I got that working with 

 7 Mr. Abbe and Mr. Barker. 

 8 THE COURT: All right, so in consultation with 

 9 them you arrived at -- 

 10 THE WITNESS: We arrived at that number. 

 11 THE COURT: Okay. And the contemplation would 

 12 be for what kind of disposal at 50¢ per drum? 

 13 THE WITNESS: Whatever the chemical disposal 

 14 company's practice would be for disposing of it. 

 15 THE COURT: All right. 

 16 THE WITNESS: We would have no control over 

 17 what they did with it. 

 18 THE COURT: And as far as you know, then, at 

 19 the time that would have been the going rate for the 

 20 disposal of the 55-gallon drum of Pyranol. 

 21 THE WITNESS: Yes. 

 22 THE COURT: Okay, thank you. Mr. Biagetti, do 

 23 you have anything else? 

 24 MR. BIAGETTI: No. Thank you, Mr. Clark. 

 25 THE COURT: Thank you very much for coming, 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 36 of 63
 37 

 1 sir, appreciate it, you're excused. 

 2 THE WITNESS: Thank you. 

 3 THE COURT: Do you have any other witnesses? 

 4 MR. BIAGETTI: No witnesses. We wanted to 

 5 call a couple of things to your attention. 

 6 THE COURT: Okay. You can do that. 

 7 MR. COWAN: Thank you, judge. I just wanted 

 8 to present a few documents for you to add to your 

 9 reading over the weekend. 

 10 THE COURT: Okay. The government's given me a 

 11 list of what you want me to read tomorrow. Have you 

 12 given me one yet? 

 13 MR. COWAN: Yes we have, judge, it's been 

 14 filed. 

 15 THE COURT: I just want to make sure I have 

 16 it. 

 17 (Pause.) 

 18 THE COURT: I've got it, okay. 

 19 MR. COWAN: Thank you, judge. So I just want 

 20 to offer into evidence for the court's consideration a 

 21 few documents. 

 22 THE COURT: Yes. 

 23 MR. COWAN: First of all, pursuant to the 

 24 parties' agreement we're going to introduce the expert 

 25 report of Dr. James Girard accompanied by his designated 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 37 of 63
 38 

 1 deposition testimony. By agreement of the parties we 

 2 have designated experts by way of designations and their 

 3 reports. On that vein, judge, I know you're going to 

 4 read the whole expert report, because who could resist, 

 5 but I would point out -- 

 6 THE COURT: I'm really looking forward to it. 

 7 MR. COWAN: Just a few things. The documents 

 8 will speak for themselves, but I think you will agree 

 9 after you read them that there's agreement among experts 

 10 on some key points here. His Honor has already alluded 

 11 to them. That the material, the Pyranol, scrap Pyranol 

 12 that Fletcher was receiving from GE was being used. 

 13 MR. FLYNN: Objection. This seems to be 

 14 beyond presenting what we agreed to, which is giving 

 15 your Honor copies of the reports and the depositions 

 16 that -- 

 17 THE COURT: Yeah, but I'm not, I don't want to 

 18 waste a lot of time over it. Yes, draw my attention to 

 19 what you need to in the deposition and I'll ask you some 

 20 questions about it, so. 

 21 MR. COWAN: Fair enough, judge. To move this 

 22 along, we will submit the report, and the deposition 

 23 designations I think accurately draw the court's 

 24 attention to the issues we want you to consider. 

 25 THE COURT: And I'll talk to you more about 

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 39 

 1 that. What I understand as of now is that there was a 

 2 limited market for Pyranol as sufficiently 

 3 uncontaminated as an Aroclor substitute to be used in 

 4 certain rubber-based paints, cement coatings and roof 

 5 coatings where it could be used as a plasticizer and/or 

 6 extender, and beyond that I'll look for the depositions, 

 7 although I think there's some substantial evidence in 

 8 the record to support the reference that the market was 

 9 an extremely limited one and that it was one in which 

 10 there was not substantial economic value associated with 

 11 the sale of contaminated Pyranol suggesting that the 

 12 market is extremely limited for it, but if the experts 

 13 have better evidence for me, I'll certainly listen to 

 14 what they have to say. I'm drawing my conclusions based 

 15 on GE's course of conduct, the price that was negotiated 

 16 for the used Pyranol, and the testimony I've received 

 17 concerning how Fletcher actually used it. I'll be 

 18 interested to see what the experts say about the extent 

 19 of the market for this, what kind of state it would have 

 20 to be in in order to be useful as a plasticizer or an 

 21 extender because those things may influence my 

 22 consideration, but until I read the depositions I won't 

 23 really know, and I'm sure I'll have some questions for 

 24 you about them when we have closing arguments. 

 25 MR. COWAN: Thank you, judge. Then moving 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 39 of 63
 40 

 1 along we would like to offer into evidence for the 

 2 court's consideration Defendant's Exhibit 24 which I 

 3 believe is agreed upon. It's agreed upon, judge. 

 4 THE COURT: Can I have the clerk give me a 

 5 copy of it. 

 6 MR. COWAN: Yes. 

 7 THE COURT: You can put one up on the screen, 

 8 but I'd like to look at the document. 

 9 THE CLERK: 44? 

 10 MR. COWAN: 24. 

 11 THE CLERK: 24. 

 12 MR. COWAN: Your Honor, it's a multi-page 

 13 document showing ledgers or a series of ledgers for 

 14 calendar year 1957 with account receivables. 

 15 THE COURT: Okay, I've got it. 

 16 MR. COWAN: And you'll see at the bottom of 

 17 the page there, under sale scrap material, you'll see 

 18 Milford Paint Works. I represent to his Honor that you 

 19 will see the reference to Milford throughout this 

 20 document. I draw your attention to a page that has 

 21 Bates labeled GESP0000310MSJ showing an annotation at 

 22 the bottom of the page, letter A, indicating a letter 

 23 sent requesting check, and that letter also appearing at 

 24 Milford Paint Works referenced earlier in the documents. 

 25 Your Honor, we'd offer this to show that the time in 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 40 of 63
 41 

 1 question is early 1957, GE was in fact diligently 

 2 pursuing its customer for debts owed and was not 

 3 allowing anything to languish, and was responsive to its 

 4 business relationship with its customer. Similar on 

 5 page GESP -- 

 6 THE COURT: Yeah, when the time comes my sense 

 7 of the evidence is that the government has some limited 

 8 evidence that earlier in the 1950s, on at least one 

 9 occasion, that materials provided by GE to Fletcher at 

 10 no cost, but that otherwise throughout the relationship 

 11 until such time as there was a prolonged period of 

 12 non-payment by Fletcher, that GE did charge Fletcher for 

 13 the Pyranol that he was taking, that he took it. There 

 14 is some testimony to suggest that there were informal 

 15 allowances made during certain phases of the proceeding, 

 16 but that the evidence suggests to me that GE did 

 17 consistently charge Fletcher for the material that 

 18 Fletcher was taking away. 

 19 MR. COWAN: All right, judge, we'll move on 

 20 then. Just again to get into the record Defendant's 

 21 Exhibit 29, agreed upon by the United States, which is a 

 22 label from a Webtex roof coating product. His Honor has 

 23 made the point that there's evidence in the record that 

 24 material purchased by Fletcher had used and was used in 

 25 some roof coating materials. We also note that Webtex 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 41 of 63
 42 

 1 was purchasing significant amounts of scrap Pyranol that 

 2 Fletcher purchased from General Electric. We'd offer 

 3 that as evidence of Webster's and Webtex's product in 

 4 the marketplace, and it's also useful as his Honor 

 5 considers the expert testimony. 

 6 THE COURT: But it doesn't list specifically 

 7 the ingredient in there, right? 

 8 MR. COWAN: That's correct, judge, cannot make 

 9 that representation. 

 10 MR. FLYNN: I do want to, your Honor -- 

 11 THE COURT: It's guaranteed free from coal 

 12 tar, though. 

 13 MR. COWAN: Can't be that, judge. 

 14 THE COURT: I had a lot of those cases going 

 15 back into the 1880s here, so this case is like brand new 

 16 compared to some of the cases. 

 17 MR. FLYNN: Your Honor, I just want to point 

 18 out that the United States has not objected to this 

 19 exhibit, but we have pending before you a motion in 

 20 limine to restrict expert testimony concerning the whole 

 21 topic of roof coating. 

 22 THE COURT: All right, well, we will get to 

 23 that if we go through his documents. What else do you 

 24 want to show me? 

 25 MR. COWAN: Just very quickly, judge, 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 42 of 63
 43 

 1 Exhibit 30. Again, this is a United States Patent 

 2 Office, Defense 30, agreed upon by the parties showing a 

 3 trademark by Webtex and again listing for a coating for 

 4 application for billing services including water, 

 5 roofing liquids for roof, foundations, et cetera. 

 6 Again, for evidence of the manner in which Webtex was 

 7 using this material, again helpful as his Honor 

 8 considers the expert's testimony. Moving along. 

 9 MR. FLYNN: Your Honor, just -- 

 10 THE COURT: It's the same. 

 11 MR. FLYNN: Yes. 

 12 MR. COWAN: Thank you, judge. Moving along, 

 13 Defendant's Exhibit 34, also agreed upon, this is a 

 14 document taken from Monsanto's materials indicating for 

 15 the year '63 through '71, plasticizer applications, 

 16 forgive me, plasticizer applications for Aroclors were 

 17 the second most common use or at least sales by Monsanto 

 18 during that period. 

 19 THE COURT: All right, let me look at this. 

 20 That sounds interesting. 

 21 (Pause.) 

 22 THE COURT: Now, my question to you is, can I 

 23 infer from this that plasticizer applications are 

 24 plasticizers that consist of Aroclor, or are there 

 25 non-PCB plasticizers, because Monsanto made a ton of 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 43 of 63
 44 

 1 different chemicals. 

 2 MR. COWAN: Yes it did, your Honor, and they 

 3 were quite good at it. They did well by themselves. I 

 4 next offer -- 

 5 THE COURT: Well, but can you tell me, I mean, 

 6 when it says plasticizer applications -- 

 7 MR. COWAN: Yes, your Honor. 

 8 THE COURT: It did make, say, for example, in 

 9 1963 it sold thousands of pounds, 9,181 pounds, so 9,181 

 10 pounds of plasticizer, but does that mean it sold that 

 11 amount of Aroclor, or does that mean it sold 

 12 plasticizers of a variety of kind, only one of which was 

 13 maybe Aroclor, which we don't know how much of it was 

 14 plasticizer. 

 15 MR. COWAN: Yes, your Honor, no dispute there, 

 16 we have entered into or offered for the court's 

 17 consideration testimony of William Papageorge, a 

 18 Monsanto technician chemist, who speaks about Monsanto's 

 19 Aroclor business -- excuse me, its plasticizer business 

 20 and how significant it was for the company and the 

 21 material, the kind of plasticizers that the company 

 22 offered. 

 23 THE COURT: So you have a deposition you want 

 24 me to read that tells me more about that? 

 25 MR. COWAN: Yes, your Honor. 

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 45 

 1 THE COURT: All right, and did you want to say 

 2 something? 

 3 MS. ROWLEY: I just want to clarify that there 

 4 are many different types of Aroclors and the ones that 

 5 GE was using were not necessarily the kind that Monsanto 

 6 was selling for use at that time. 

 7 THE COURT: All right. 

 8 MR. COWAN: I refer his Honor to Mr. 

 9 Papageorge's testimony and the expert's testimony. 

 10 THE COURT: All right. 

 11 MR. COWAN: One second, your Honor. 

 12 THE COURT: Yup. 

 13 (Pause.) 

 14 MR. COWAN: Your Honor, thank you, I believe 

 15 that's it. 

 16 THE COURT: Okay. You want to take up some 

 17 objection you have to their expert deposition? 

 18 MR. FLYNN: We actually have two pending 

 19 motion in limine's before your Honor. One is related to 

 20 this whole roof coating issue and their expert, Dr. 

 21 Girard, and then we have a -- 

 22 THE COURT: All right, well, let's go. I've 

 23 got to rule on it, right, I've got to read the 

 24 deposition today so I'm going to decide whether I'm 

 25 going to keep it out. What do you want to say about it? 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 45 of 63
 46 

 1 MS. ROWLEY: It's just a short point that we 

 2 made in the motion. We had a motion to strike at the 

 3 summary judgment stage certain evidence that GE never 

 4 relied upon, inadmissible hearsay. They haven't really 

 5 briefed any different evidence to show that Webtex was 

 6 using the scrap Pyranol in roof coating. We agree it 

 7 was used for something, we don't know what -- 

 8 THE COURT: Does your motion depend upon your 

 9 assertion that there is no evidence to permit a 

 10 conclusion that the Webtex, whatever the name of the 

 11 predecessor, was getting Pyranol from Fletcher? 

 12 MS. ROWLEY: No, we agree they were getting 

 13 Pyranol from Fletcher. 

 14 THE COURT: Okay. 

 15 MS. ROWLEY: We just don't agree that, you 

 16 know, we can identify what they were using it for at the 

 17 end of the day, so therefore any expert testimony on 

 18 specific roof coating specifically is irrelevant. 

 19 THE COURT: I don't think it particularly 

 20 matters all that much. The point is, they were buying 

 21 it because they could use it in their product. One of 

 22 their products was roof coating. It's logical they 

 23 probably used it as a roof coating additive, but -- 

 24 MS. ROWLEY: And it's also irrelevant because 

 25 GE didn't know about the sales to Webtex. 

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 47 

 1 THE COURT: Yeah, but you brought in a whole 

 2 lot of evidence about what's happening at the site and 

 3 didn't tie any of it to what GE knew, so, I'm going to 

 4 receive it depending, you know, I won't necessarily 

 5 assign any significant weight to it, but I'm not going 

 6 to exclude it for that reason. So if the arguments are 

 7 that I should exclude the evidence concerning Webtex 

 8 because there isn't sufficient evidence to permit a 

 9 conclusion that Webtex is using the Pyranol it obtained 

 10 from Fletcher in a roof product as opposed to something 

 11 else, I overrule that objection, and if the -- I forget 

 12 now, your second argument was? 

 13 MR. FLYNN: We also have pending a motion in 

 14 limine to completely exclude the testimony of Neil 

 15 Shifrin who's another expert of GE. 

 16 THE COURT: And why do you want to exclude 

 17 him? 

 18 MR. FLYNN: Turn to my colleague. 

 19 MS. FISKE: We don't think that he's qualified 

 20 as an expert or that his opinions will help you resolve 

 21 the issues that are in dispute. 

 22 THE COURT: Why? 

 23 MS. FISKE: For the reasons stated in our 

 24 papers. 

 25 THE COURT: I know, but I want you to tell me 

Case 1:06-cv-00354-PB Document 104 Filed 02/06/09 Page 47 of 63
 48 

 1 why. 

 2 MS. FISKE: Well, for one thing he talks -- he 

 3 talks about the lack of environmental regulation during 

 4 the relevant time period. I think all he's stating is 

 5 something that's really a matter of common knowledge. 

 6 You've indicated yourself, you know, by reference to 

 7 stories growing up in Woburn, he's not adding anything, 

 8 and he doesn't talk whatsoever -- 

 9 THE COURT: I grew up in Acton, not Woburn. 

 10 MS. FISKE: I'm sorry, I'm thinking civil 

 11 action. So, you know, that's common knowledge. You 

 12 don't need an expert to tell you that. And he does not, 

 13 even though he's purporting to talk about environmental 

 14 regulation at the time period, he does not mention any 

 15 of the laws regarding regulation of the Hudson River 

 16 that were in place at the time. 

 17 THE COURT: Is he being offered to stand for 

 18 the proposition that there weren't any restrictions? 

 19 MS. FISKE: He says virtually unregulated. 

 20 THE COURT: I think it was virtually 

 21 unregulated. 

 22 MS. FISKE: Right. 

 23 THE COURT: So I don't think it's going to be 

 24 a problem. I mean, it's ironic because earlier on they 

 25 wanted to introduce evidence that it was regulated and 

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 1 illegal in the early seventies. Most of the time this 

 2 was going on there were very little restriction on GE's 

 3 ability to dispose of this waste in any way it chose. 

 4 The clean water act hadn't been enacted. Most local 

 5 regulations didn't bar disposing of waste in rivers. 

 6 People who lived in Concord, New Hampshire in the 1950s 

 7 and 60s would tell you that this Merrimack River was so 

 8 polluted that in fact it did catch fire periodically. 

 9 People were regularly depositing all kinds of hazardous 

 10 substances in the river and not being held to account 

 11 for it. GE acknowledges that it was dumping lots of 

 12 Pyranol into the Hudson River and -- so I don't think it 

 13 really matters. I'll look at it. But if that's all it 

 14 is, that's not going to be a problem. Anything else? 

 15 MS. FISKE: Well, here's two more opinions 

 16 that we don't think are going to assist the court. His 

 17 second opinion is the transportation of NQ which is what 

 18 he calls scrap Pyranol over long distances at Fletcher's 

 19 expense was not consistent with the means of disposal of 

 20 industrial waste readily available to GE at the time, 

 21 when the disposal of such waste, including those 

 22 contaminated PCBs, was effectively unregulated. 

 23 THE COURT: Well, in theory they could have 

 24 dumped it in the river, so why did they transport it 

 25 over a long period of time. The answer is, because they 

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 1 could get somebody to pay them for it. That's the 

 2 answer to that. That's the end of the story. 

 3 MS. FISKE: Why do you need an expert for 

 4 that? 

 5 THE COURT: Well, but, so what? To the extent 

 6 he says that, his argument is completely unpersuasive. 

 7 So, if I don't think it makes any sense, I'm not going 

 8 to adopt it anyway. 

 9 It's obvious, why would they send Pyranol all 

 10 across state lines? Because Fletcher was willing to pay 

 11 for it. Why did they do that? They could have gotten 

 12 rid of it, even in the late 1960s for 50¢ a drum, 

 13 according to GE's expert, so yeah, they could get rid of 

 14 it relatively cheaply, but they could get rid of it and 

 15 make some money on the side while they were getting rid 

 16 of it by paying this guy to take it. 

 17 MS. FISKE: His third point, your Honor, is 

 18 equally unpersuasive. He says the nature of the 

 19 transaction between GE and Fletcher was consistent with 

 20 a sale, paren, GE and purchase, paren, Fletcher's of a 

 21 useful product, meaning scrap Pyranol. That ultimately 

 22 goes to the conclusion -- 

 23 THE COURT: I think they didn't bring him in 

 24 here for a reason because, I mean, it wouldn't really 

 25 withstand careful analysis. It either does or doesn't 

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 1 -- the expert isn't going to -- I mean just because -- 

 2 there are many styles of argument. One style of 

 3 argument is called argument by authority, and that is 

 4 you bring somebody in and say I am an authority and I 

 5 say it's true and therefore it is. Well, I don't find 

 6 argument by authority persuasive. If it doesn't make 

 7 sense to me, I'm not going to believe it, and I don't 

 8 care who you are. I feel I can understand whatever kind 

 9 of expert testimony people are going to produce, and if 

 10 I don't, if what you say doesn't make sense, I don't 

 11 care what your qualifications are, I'm not going to 

 12 accept it. And just saying I'm an expert, it's 

 13 consistent with sales, that doesn't really tell me much. 

 14 So I'll read his deposition. If it's persuasive to me, 

 15 I'll consider it, but I'm not going to exclude it, I'm 

 16 just going to say I don't really buy it. 

 17 MR. BIAGETTI: May I make one comment in 

 18 response because it may save you some time. We made a 

 19 proposal to the government and I'll reiterate it here. 

 20 There's only one strand of one argument that I 

 21 think is anywhere in the government's case, and frankly 

 22 it's more in the pretrial pleading, the proposed 

 23 conclusions of law than I heard at the presentation of 

 24 the evidence, that Dr. Shifrin would still need to rebut 

 25 the report and deposition if you decided so, judge, and 

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 1 it's this. The government asked you to conclude as a 

 2 matter of law that given the promulgation of laws and 

 3 regulations governing and limiting the discharge of 

 4 hazardous substances into water bodies such as the 

 5 Hudson, GE was forced to consider other cost effective 

 6 disposal methods for scrap Pyranol. 

 7 We don't think the case is about discharges of 

 8 hazardous substances -- 

 9 THE COURT: Who's saying that? 

 10 MR. BIAGETTI: The government is asking you to 

 11 conclude that at -- at proposed conclusion -- the 

 12 government is making that argument at -- 

 13 THE COURT: Well, I expect the government to 

 14 show me here's the New York State law that would have 

 15 barred him from putting it in the river that was in 

 16 effect at the time. Here's the local ordinance that 

 17 would have barred him from dumping it. Here's the 

 18 federal law that addresses this. So if GE wanted to 

 19 behave lawfully, it couldn't do that and therefore it 

 20 had to find an alternative. That didn't require an 

 21 expert. That's just here, show me the law. I'm sort of 

 22 the expert in the law here. Just bring it to my 

 23 attention and I'll look at it and I'll see whether there 

 24 were in fact laws in place. I don't understand that 

 25 ordinarily to be the case because I represented so many 

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 1 companies who had wastes in the 1950s and 60s where the 

 2 product, recommended disposal of the product was dig a 

 3 trench into the ground, pour the stuff into the ground 

 4 and cover it over, and that's the way it worked. Now, 

 5 maybe there were laws in place that I'm not aware of in 

 6 the fifties and sixties, but that's not the way -- I 

 7 don't think they were in New Hampshire because in New 

 8 Hampshire that's the way they did things. They just dug 

 9 a trench or they put a punch of barrels in the ground, 

 10 took a bulldozer and ran over them and pushed dirt over 

 11 it. That's how they would do it. 

 12 MR. BIAGETTI: And your recap is the essence 

 13 of Dr. Shifrin's report on that subject which I think is 

 14 all -- 

 15 THE COURT: Maybe New York law is different. 

 16 I don't think there are any federal laws. Were there 

 17 any federal laws that barred disposal of hazardous 

 18 waste? 

 19 MS. FISKE: Well, we intend to -- the answer 

 20 to your question is the Refuse Act 1899 and then there 

 21 are also New York laws, but we don't intend to make this 

 22 significant argument at our closing and we do intend to 

 23 present it just exactly as you have said, by citing to 

 24 the laws themselves. You are the expert in the laws, 

 25 not Dr. Shifrin, who by the way has never been to law 

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 1 school. 

 2 THE COURT: I'm interested in -- I'm more 

 3 interested, frankly, maybe the parties didn't get this, 

 4 what would have been interesting to hear, I'm an expert 

 5 in paint, and I've looked back over 50 years and I've 

 6 looked at the formulas for paint and I know the market 

 7 shares and I know what paint products are made and I 

 8 know how you make plasticizers and I know how you make 

 9 roof coatings, and to the extent Aroclors were used they 

 10 had to be this kind of purity, and without that kind of 

 11 purity you couldn't put it in the product, it wouldn't 

 12 work and nobody would buy it, you know, and if you've 

 13 got an expert like that, that would be interesting. 

 14 MS. ROWLEY: That's our expert. 

 15 THE COURT: Okay, well, good, I'll be 

 16 interested. That's worth reading because that requires 

 17 an expertise that I don't have. 

 18 MR. COWAN: It is good reading, judge, but 

 19 read his report, then read his deposition. Now that's a 

 20 good read. 

 21 THE COURT: Okay. 

 22 MR. COWAN: Also respectfully, judge, the 

 23 report of Dr. James Girard, I apologize to your Honor, I 

 24 inadvertently left off the list of exhibits we ask you 

 25 to read, but the parties have agreed to it by agreement, 

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 1 so with that friendly amendment I believe we're all set. 

 2 THE COURT: Okay, the defense rests. 

 3 MR. COWAN: Yes. 

 4 THE COURT: The objections to the 

 5 admissibility of the expert's depositions that the 

 6 government has raised I will take under advisement and I 

 7 will read the depositions and I will make a final ruling 

 8 after reading the depositions. My inclination is, 

 9 frankly, is to deny the motions to exclude, but I'll see 

 10 what the people have to say. In denying the motions to 

 11 exclude doesn't mean I'll choose to credit the 

 12 depositions. I may find what they have to say not 

 13 credible, or I may find what they have to say credible 

 14 but doesn't require really expert analysis but just 

 15 states something that is already evident under the 

 16 circumstances. 

 17 So, I will, unless anybody wants to say 

 18 anything more today, my plan is to have all your 

 19 exhibits brought up into my office. Take your lists, 

 20 sit down and read every exhibit that the government has 

 21 asked me to read, every deposition the government has 

 22 asked me to read, and read every exhibit the defendant 

 23 has asked me to read and every deposition that the 

 24 defendant has asked me to read, and I'll do that 

 25 tomorrow and if necessary over the weekend, then Monday 

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 1 you will come prepared to make final arguments. 

 2 I do have to say I've read the government's 

 3 memorandum on the legal standard and I'm not inclined to 

 4 change my view. I think the government's current 

 5 position is not that far from my view, but it is a 

 6 different view. I would take the view that you have, 

 7 and you've used this term, the government has, 

 8 constructive knowledge. The way I see it, it's 

 9 something that you would call an alternative form of 

 10 intent that the law sometimes refers to as constructive 

 11 intent. In other words, if the arrangement is an 

 12 arrangement for the transfer of waste under 

 13 circumstances where the defendant understands and agrees 

 14 that the waste will be, some of it used for useful 

 15 purpose and some of it will be discarded in ways that 

 16 qualify as disposal under the statute, that that is an 

 17 arrangement for disposal, and, but I am not willing to 

 18 go so far as what I think the government is suggesting, 

 19 is that even if under the circumstances the defendant 

 20 didn't know that disposal was substantially certain to 

 21 result, but if under the circumstances it reasonably 

 22 should have known that, that it's chargeable with 

 23 liability because I find no support in the case law for 

 24 that view and I don't think I can square it with the 

 25 statutory construction, and I think the government just 

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 1 takes a very expansive view of the concept of statutory 

 2 construction. I am essentially a texturalist. I 

 3 believe in construing the text of the statute in 

 4 context. I try to determine what the objectively 

 5 manifested purpose of the statute would be. The 

 6 government's approach seems to be CERCLA has a purpose 

 7 to clean up the environment and make polluters pay. If 

 8 there are two possible interpretations, one of which can 

 9 be construed to enhance the ability to make polluters 

 10 pay, then that's what we're going to adopt, and I don't 

 11 think there's even -- I don't even think the statutory 

 12 language can be stretched that broadly, and I don't 

 13 think any court would stretch it that broadly. There 

 14 may be good public policy reasons to do so, but that's 

 15 the difference between the Congress and the judiciary. 

 16 The Congress decides how to amend statutes to make them 

 17 more effective. The judiciary applies the statutes and 

 18 construes the statutes reasonably in light of the 

 19 purpose of the statute, but must attend carefully to the 

 20 language, and I don't see how an arrangement can be an 

 21 arrangement for disposal unless the arranger either had 

 22 disposal as an objective, or the arranger knew, 

 23 understood that the disposal was substantially certain 

 24 to result from the arrangement, and I think in that 

 25 sense I am agreeing with what I understand the 

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 1 defendant's position to be on the statute, and I am not 

 2 persuaded by the government's position. So you should 

 3 keep that in mind when you present your arguments. Yes. 

 4 MR. COWAN: Your Honor, I apologize, just one 

 5 small housekeeping matter if his Honor -- 

 6 THE COURT: Yes. 

 7 MR. COWAN: On the identification of those 

 8 exhibits you asked us to bring to your attention, I 

 9 asked for friendly amendment of the Girard report. One 

 10 final, and perhaps it's oversight, the parties have a 

 11 stipulation that all expert testimony by way of 

 12 deposition, their reports would be entered into 

 13 evidence. I just took a quick glance. They have 

 14 another expert, Mr. Portfolio. I didn't see it on their 

 15 list presented to the court, so I just want to add that 

 16 to our list and I'll file an amendment for your 

 17 consideration. 

 18 THE COURT: You want me to read their 

 19 deposition, their expert's deposition? 

 20 MR. COWAN: I want you to read their roof 

 21 coating expert's report. 

 22 THE COURT: All right, so you want me to read 

 23 what from Portfolio? 

 24 MR. COWAN: They didn't designate anything 

 25 even though we have a stipulation that we were going to 

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 1 do so. 

 2 MR. FLYNN: There's no deposition for 

 3 Portfolio. There's a report that they listed as an 

 4 exhibit and we said, you know, you can read it. 

 5 THE COURT: Okay, so you want to add 

 6 Portfolio's report to the list of things you want me to 

 7 read. 

 8 MR. COWAN: Yes. So if it's okay with you, 

 9 judge, I'll file an amendment which lists Mr. 

 10 Portfolio's report and Mr. Girard's which I think is 

 11 honest and reflectful of our agreement. 

 12 THE COURT: That's fine. Here's what you're 

 13 going to do. I'm going to leave in a minute and then 

 14 you're going to stand here with my clerk and make sure 

 15 everything that you want me to read is on a cart or 

 16 carts that he's going to bring up to my office, and that 

 17 your lists, you'll actually take the lists, and if you 

 18 need to physically write on them to add what needs to be 

 19 added to it, and then the clerk will bring up on carts 

 20 the binders containing the exhibits they want me to 

 21 read, and for the defendants I think as their exhibits 

 22 are presented separately, those exhibits that they want 

 23 me to look at, with the currently updated lists that 

 24 each side wants me to look at, and then I will come in 

 25 Friday morning and start reading. And then you can 

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 1 present your oral arguments. As I said, I am already -- 

 2 so the defense has rested. The evidence in the case is 

 3 complete. I am quite satisfied that there is persuasive 

 4 evidence, and certainly the government can't prove to 

 5 the contrary that Fletcher did use scrap Pyranol in a 

 6 small percentage of its operations and did transfer to 

 7 third parties an amount of scrap Pyranol and -- 

 8 MS. FISKE: We conceded that in our summary 

 9 judgment papers. 

 10 THE COURT: Okay, so that's basically -- that 

 11 issue is done. So the question then becomes, 

 12 notwithstanding that, was this an arrangement for 

 13 disposal because even if GE understood and agreed that 

 14 some of the Pyranol would be used in productive ways, 

 15 its agreement with Fletcher is such that it qualifies as 

 16 an arrangement for disposal because GE knew and 

 17 understood that not all of it would be able to be used 

 18 and that substantial quantities of it would have to be 

 19 disposed of, and it knew that at the time it went into 

 20 the arrangement and during the time the arrangement was 

 21 continuing to be in place, and on that basis it meets 

 22 the standard. That's what I understand the argument 

 23 that the government is going to present to me. 

 24 The argument I understand that the defendant 

 25 is going to present to me is in GE's view the 

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 1 arrangement was an arrangement to transfer Pyranol for 

 2 use in a series of products, a productive use that would 

 3 earn him money other than a use that would qualify as a 

 4 disposal, and that importantly the government can't 

 5 prove otherwise because it's the government's burden. 

 6 So you've got to present an argument to try to 

 7 demonstrate to me that the Pyranol, there was a market 

 8 for it, Fletcher was paying for it, Fletcher was making 

 9 statements suggesting that he had uses for it, the 

 10 circumstances under which it was transferred suggests 

 11 that it was going to be used, not disposed of, the 

 12 Pyranol was sufficiently clean to be useable for the 

 13 alternative purposes that Fletcher was putting it to. 

 14 GE had no basis on which to know and understand during 

 15 the course of the agreement that this would be disposed 

 16 of. Fletcher never told them he was disposing of it. 

 17 There is simply no persuasive evidence that he was in 

 18 fact disposing of it. That's what I understand your 

 19 argument's going to be. Try to marshal the facts in 

 20 evidence to support that view, and I'll hear from the 

 21 government, then I'll hear from the defendant, and then 

 22 we'll go from there, although, I mean, I can switch the 

 23 order of argument if you want. I mean, it is usually 

 24 the party with the burden of proof gets to go last, but 

 25 it might make sense for the government to just present 

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 1 its argument and then the defendant. It may make more 

 2 sense for me because -- 

 3 MS. FISKE: If you'd prefer. 

 4 THE COURT: Yeah, I think that makes more 

 5 sense because I'm going to be asking a series of 

 6 questions, and then after the defendant's done, if you 

 7 have some kind of need to respond to something they've 

 8 said, I'll certainly hear you on that. It's going to be 

 9 a much less formal approach to argument than you would 

 10 present in front of the jury. 

 11 MS. FISKE: We'll plan on that. 

 12 THE COURT: Okay. And I hope we won't spend 

 13 too too long, you know, I'm certainly willing to spend 

 14 an hour with each of you and longer if we need to, but I 

 15 hope we can wrap that up in the morning on Monday and 

 16 then I can give you a decision and move on to the next 

 17 case I've got to work on. 

 18 All right, anything else we need to cover 

 19 today? 

 20 MR. BIAGETTI: Nothing. 

 21 THE COURT: Okay. Thank you. So work with my 

 22 clerk and make sure you get everything I need organized. 

 23 (Adjourned at 3:00 p.m.) 

 24 

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 1 C E R T I F I C A T E 

 2 

 3 I, Sandra L. Bailey, do hereby certify that 

 4 the foregoing transcript is a true and accurate 

 5 transcription of the within proceedings, to the best of 

 6 my knowledge, skill, ability and belief. 

 7 

 8 

 9 Submitted: 2/6/09 /s/ Sandra L. Bailey 

 SANDRA L. BAILEY, CSR, CM, CRR 

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