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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 BEFORE:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - x : PETER D. MAINS and LORI M. MAINS: : Plaintiffs, : : vs : : SEA RAY BOATS, INC. : : Defendant. : : - - - - - - - - - - - - - - - - x

No. 3:01CV2402(AWT)

HARTFORD, CONNECTICUT APRIL 4, 2008

JURY TRIAL VOLUME IV

HON. ALVIN W. THOMPSON, U.S.D.J. 18 19 20 21 22 23 24 25 Diana Huntington, RDR-CRR Official Court Reporter and a Jury of Nine

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APPEARANCES: FOR THE PLAINTIFFS: JOHN L. SENNING, ESQ. 16 Saybrook Road Essex, Connecticut 06426 HERRICK NIKAS, LLP-CA 1201 Dove Street, Suite 560 Newport Beach, California 92660 BY: RACHEL D. LEV, ESQ. RICHARD J. NIKAS, ESQ. FOR THE DEFENDANT: DAY PITNEY, LLP CityPlace I Hartford, Connecticut 06103-3499 BY: JAMES H. ROTONDO, ESQ. DANIEL J. FOSTER, ESQ.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GREGORY DAVIS (Resumed) GREGORY WILSON DEFENDANT'S WITNESS THOMAS WICANDER (Resumed) DAVID WADE PLAINTIFFS' WITNESS

TABLE OF CONTENTS

DIRECT -661

CROSS --

REDIRECT 557

RECROSS 578 --

708

719

DIRECT 587 721

CROSS 614 730

REDIRECT ---

RECROSS ---

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:

9:06 A.M. A couple of things I'm going to

squeeze in before we bring the jury in and pick up with our redirect examination. Just so you all know, based on discussions, I'm planning that we'll have closing arguments on Monday and I'm hoping to get the charge in. If I don't finish it on For a case

Monday, I'll finish it on Tuesday morning.

like this, typically closings are about an hour for each side. I will try to remember before we leave today to I

give you some -- I have some procedures for closing.

will try to give you those before you go today so that over the weekend you have time to fine tune your thinking about how you do that. I have some questions concerning what I read in the jury charge. I'm going to do that -- I'll fit that --

I can do it more efficiently if I wait until after lunch because I didn't have time to organize my notes on that. As to the matter we discussed last night at some length -- I seem to be missing one folder. I can find it on my desk. Sorry. Let me see if

I did get defense counsel's letter and I've gone back and looked at the documents. Defense counsel cites to the Paolitto case, 151 F.3d 60, which happens to also cite to Rosa, which was

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pointed out by plaintiffs' counsel last night, and it says that -- let me see. that point. Rosa said the rule of opening the door or curative admissibility -- we're talking about admissibility there -- gives the trial court discretion to permit a party to introduce otherwise inadmissible evidence on issue: A, when the opposing party has Rosa had more complete language on

introduced inadmissible evidence on the same issue; and B, when it is needed to rebut a false impression that may have resulted from the opposing party's evidence. The defense did not admit inadmissible evidence yesterday during the cross, so the first prong for application of the curative admissibility standard is not met. Also I have serious questions as to whether the second prong is satisfied based on going back and looking at these documents to the extent I've been able to determine what they say. There's some I can't find model They are very clearly

numbers, but I do see the years. spelled out.

So this is what I'm going to do. Plaintiffs' 33, the pickling area, plaintiffs' counsel will be allowed to inquire, but I don't think we've had the door opened for admissibility.

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On the compression test issue where defense counsel used Defendant's 95, if plaintiffs' counsel wants to inquire into that area, I ordinarily let counsel inquire. It seems to me, though, from what I've looked at

in terms of the years of the documents, I haven't been able to find engine models. But I'm going to just leave The years

that to counsel to put in front of the jury.

and engine models, if plaintiffs' counsel wants to go into it, they can, and then defense counsel can go into it also. Now, that's 74, 112, and 113. 150, I'm not allowing inquiry on because it's incomplete. I think it jumps from page 1 to page 10.

And then when we get to the flushing instructions, I believe I said there was nothing that was presented in terms of opening the door there. And with respect to the location of the discharge hose and the exhaust elbow, the conditions for admitting Plaintiffs' 38 have not been satisfied under the curative admissibility doctrine. I will allow plaintiffs' counsel to inquire as to Plaintiffs' 28, but only with respect to the points that were addressed on cross-examination, not with respect to this -- the point that's mentioned in the last paragraph of defense counsel's letter. And then Plaintiffs' 47, plaintiffs' counsel can

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inquire. Plaintiffs' 49, plaintiffs' counsel cannot inquire. I haven't received any showing that it's not

barred by a protective order. Plaintiffs' 60, plaintiffs' counsel can inquire. So that's where we are. MR. NIKAS: THE COURT: MR. NIKAS: Your Honor, if I may? Yes. I'd like to state for the record

that yesterday afternoon we requested the opportunity to provide a more detailed analysis of our arguments. Following court we were informed that the Court would not permit such analysis. We received this morning an ex parte communication in the form of a letter from defense counsel to the Court. This is not filed on PACER, it was not

filed as a pleading, but rather to perform a correspondence. Within such letter was contained

testimony regarding the contents of certain documents and representations as to their appropriate use therein. Plaintiff objects to the Court's consideration of this ex parte communication. Plaintiff further objects to the Court's determination that Exhibit 38 is barred by the doctrine of collateral -- excuse me.

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THE COURT: MR. NIKAS: THE COURT:

Curative. -- curative admissibility. I didn't say it was barred. I said

it was not permitted to be admitted pursuant to the doctrine. MR. NIKAS: It should be permitted due to the

doctrine of waiver since defense counsel actually showed the witness the exhibit in the presence of the jury for the purpose of impeaching his prior testimony. Furthermore, given that defense counsel has been able to testify as to the contents as to the admissibility of certain documents, any document marked "subject to protective order," more than enough testimony has been received from the various witnesses that all these documents are available to anybody on the internet with access to MercNet, and whatever copies that were provided were done so in the interest of convenience because extra copies were available. If the Court so wishes, we can

provide them copies obtained from other sources that do not have any indication as to their use in prior cases. THE COURT: Are you representing that

Plaintiffs' 49 is not subject to a protective order? MR. NIKAS: It's not, Your Honor, because if we

obtained it from separate sources -THE COURT: In that case, you can inquire as to

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Plaintiffs' 49.

My understanding was that you were asked

about the issue of protective order, had not responded to it. Let me just say one thing or two things. I think plaintiffs' counsel was allowed to give an explanation for their position. We got the transcript,

we were here in court for I don't know how long, but we had quite an extensive discussion. Plaintiffs' counsel

made several arguments where they persuaded me to head in a direction that would have allowed the admissibility of some of these documents. And they told me that the use of

those documents was necessary to correct the misleading impression that had been created by the defense. And for

that reason, I indicated I was giving more latitude, but defense counsel didn't have copies of the documents, so I said defense counsel can look at the documents and if defense counsel disagreed with where I was going, submit something to me. And the letter was faxed in, and I We had

specifically said, "Fax it in, do not e-mail it." that conversation.

In addition, it was not ex parte because it was copied to opposing counsel. Let's bring the jury in. We'll have our witness retake the stand. we'll finish up with his redirect. And

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. NIKAS: Q. A. Q.

(Whereupon, the jury entered the courtroom.) THE COURT: Please be seated everyone.

I just need one second to get to my notes. (Pause.) THE COURT: Mr. Nikas, whenever you're ready.

THOMAS WICANDER, called as a witness, having been previously duly sworn, was examined and testified further as follows:

REDIRECT EXAMINATION (Resumed)

Good morning, Mr. Wicander. Good morning. Before your testimony was interrupted yesterday, I

believe we were talking about your procedures that you used when pickling the engine; is that correct? A. Q. I believe so, yeah. Mr. Rotondo went into great detail about the issue of

sparkplugs and whether new sparkplugs were purchased on the 11th or the 13th or some time period in between; do you remember that? A. Q. Yes, I do. Do you know why the MerCruiser procedures state that

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plugs should be changed when an engine has suffered water ingestion from hydrolocking? A. I assume they want to make sure there's a dry set of

plugs in the engine. Q. A. Q. Is that to allow the engine to start? Yes, to allow it to run properly. In this case were you able to start the engines

without having to put in new plugs? A. Q. Yes, we were. Mr. Rotondo showed you an exhibit yesterday which was And I believe he described this as a

Defendant's 109.

ledger -- that may be your term for it. On the 31st of July, what test did you perform on the vessel? A. I don't recall if it was the 31st, that's when that We performed a water ingestion checklist.

was billed. Q. A.

What else? We had -- actually in order to do that, we had

launched the boat and had done a monometer test. Q. A. A what? Monometer. Establishes water line inside the bilge

of the boat. Q. A. Why is that important? That's what we based all our measurements of the

exhaust system on.

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Q.

When you measure the exhaust system and the relative

heights contained therein, you did that with the boat in the water? A. Q. A. Yes, we did. That's the appropriate procedure per MerCruiser? Absolutely. MR. NIKAS: witness. THE COURT: BY MR. NIKAS: Q. A. Q. Did Mr. Rotondo show you this diagram yesterday? Yes, he did. And did he ask you -- his question was: Have you You may. Your Honor, I'd like to approach the

ever seen a Mercury publication showing a discharge hose above the height of an exhaust elbow? And you replied, No. And then he showed you this exhibit to refresh your recollection. And you answered, Kind of hard to tell in

this picture, to be honest. Where is the exhaust elbow on the picture? It's not very clear. manual. Mr. Rotondo followed up with, So that manual does show exhaust elbow height which is lower than a discharge hose; is that correct? It does show that in this

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q.

And you said, It does show that. Do you remember that? Yes, I do. On the same sheet of paper where this sketch is, what

does that point right there say? A. The exhaust hoses and pipes must not be higher than

the exhaust elbows at any point. Q. A. Q. Is that consistent with what you believed? Yes, it is. So now that we've answered that question, when you

measured the exhaust system, what was your purpose in doing that? A. To establish, to make sure that the proper exhaust

elbow heights were on this boat. Q. And why would that have been important in a water

ingestion case? A. Well, if the exhaust elbow height is below the

minimum, water can be easily ingested. MR. NIKAS: Your Honor, I just want to confirm

that 47 is acceptable? THE COURT: MR. NIKAS: THE COURT: is clear. MR. NIKAS: Sorry, Plaintiffs' 47. As to inquiry? As to inquiry. Yes. Plaintiffs' 47, so the record

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BY MR. NIKAS: Q. Mr. Wicander, have you seen the installation manual

published by MerCruiser for the 7.4-liter engine? A. Q. Yes, I have. Just so we're clear, what's the distinction between a

7.4-liter Blue Water engine and a 7.4-liter Horizon engine? A. What's the distinction? Horsepower and warranty

packages that are permitted with it. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Is the block the same? Yes, they are. Engines are the same, dimensions are the same? Yes, they are. Exhaust systems the same? Yes. In fact, does MerCruiser actually make this block? No, it's made by General Motors. And this is the classic General Motors long block? 454 block, yes. And when you talk about 8.1-liter engines and other

derivatives thereof, is it the same block? A. Q. A. Yes, it is. And they obtained different capacities how? Through cylinder heads and fuel injection, that sort

of thing.

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Q. A. Q. A. Q. A. Q.

They could increase the stroke, I guess? Yes. Increase the bore? Absolutely, yes. Dimensions never change, do they? External no, definitely not. When looking at that installation manual, can you

recall what it says about the importance of the exhaust system to the issue of water ingestion? MR. ROTONDO: THE COURT: Objection.

I'll allow the question. Can you repeat that?

THE WITNESS: BY MR. NIKAS: Q. Sure.

In reviewing the installation manual for the 7.4-liter engine, can you recall what MerCruiser states or what the manual states is the importance of the exhaust system to the issue of water intrusion? A. Yes. That the exhaust system must be properly

installed to their specifications to not allow water ingestion. Q. What do they say happens if it's not properly

installed? MR. ROTONDO: THE COURT: Objection.

Sustained.

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BY MR. NIKAS: Q. Well, when you did this exhaust system measurement on

the boat, you did it for a reason, correct? A. Q. Yes. And you stated the reason was because it was

important to the issue of water ingestion if we an engine that ingests water, correct? A. Q. Yes. So obviously it's important to know why it's Correct, Mr. Wicander? THE COURT: The question is scope and the

important.

objection's sustained. BY MR. NIKAS: Q. Do you recall what that installation manual says

should be the relationship between the exhaust outlet and the exhaust elbow? A. Yes. No part of the exhaust system should ever be

higher than the exhaust elbow. Q. A. The reason for that is what? To prevent -MR. ROTONDO: THE COURT: MR. NIKAS: THE COURT: about this. Objection.

Sustained. Mr. Rotondo yesterday -Sustained. We had a long discussion

I made it clear what the scope was.

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MR. NIKAS: THE COURT: MR. NIKAS:

Forty-nine? Subject to the same limitations. Actually, Your Honor, does defense

counsel have any objection to showing this? MR. ROTONDO: I don't think -- I do object. And the other I

don't think it's within the scope. objections that were stated. MR. NIKAS: this sheet of paper? THE COURT: BY MR. NIKAS: Q. A. Q.

Your Honor, can I show the witness

Show the witness, certainly.

Mr. Wicander, what's on that paper? Diagram of a collector exhaust system. Can you at least describe verbally what is depicted

in that diagram? MR. ROTONDO: Objection. It is beyond the

scope, the purpose of the document. THE COURT: It is. Sustained.

You can refine your question, perhaps. BY MR. NIKAS: Q. Well, I'd like to show you, then, another page of And can you tell me what's in this diagram?

that exhibit. A. Q.

Lift style exhaust system. And a lift style exhaust is the kind of exhaust that

was on board the boat at the time that it had the water

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ingestion, correct? A. Q. Yes, that's correct. And is that diagram consistent, looking at it with

your understanding that the hose angle should all be downhill or down? A. Q. It should be, yes. And there's nothing in that diagram published by

Sea Ray which contradicts that understanding? MR. ROTONDO: THE COURT: at a bit of a loss. MR. NIKAS: THE COURT: Objection. So I am

I haven't seen the diagram. What exhibit are we in? We are in 49.

What's your objection, Mr. Rotondo? The scope related to the elbow That's what the question is

MR. ROTONDO:

height, not to down angles. about. THE COURT:

Why don't you make it height just so

I'm sure we're in the right ballpark there. MR. NIKAS: Your Honor, if I may, we

specifically made it clear yesterday that the issue was not elbow height, it was the exhaust system measurements, not just the height of the elbow. Mr. Rotondo

specifically asked about the relationship between the outlet and the elbow. THE COURT: That implies an angle. I'll allow that question.

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BY MR. NIKAS: Q. If I can recall that question, is there anything in

that document published by Sea Ray which diagrams the water lift system which contradicts your testimony that the angles should be flowing downhill out the boat? A. No. MR. NIKAS: moment? THE COURT: Yes. Your Honor, may I take a brief

(Pause.) MR. NIKAS: scope. BY MR. NIKAS: Q. Mr. Rotondo talked yesterday about the necessity of Your Honor, I wanted to confirm on

speed, that the MerCruiser checklist for water intrusion response or pickling, it is emphatic that speed is of the essence; do you remember that? A. Q. Yes. On Monday the 11th when you started the engine, I

believe you testified that you expelled the water, correct? A. Q. A. Q. Yes. And then you ran the engine, correct? That's correct. And I believe the next -- I seem to recall -- let me

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just say this then.

Is running the engine consistent with

MerCruiser's procedures for pickling the engine? A. Q. Yes, it is. And in fact, isn't it true that the MerCruiser

service bulletin on gasoline engines and water intrusion says to check for water and start the engine? A. Q. Yes. Now, after it was clear that having performed the

compression and leak down test that the engine was unhealthy, I believe -- what determination did you make about the engines? A. That we needed to disassemble them to determine what

the damage was. Q. Now, have you been able to locate any document

published by MerCruiser which states what the compression of the engine should be rather than minimums? A. Q. Not under that particular engine number. Have you been able to locate compression ratios for

similar V8 engines that MerCruiser builds or has used in some time? A. Q. Yes. What is the spec or the specified compression ratio

for those engines? MR. ROTONDO: THE COURT: Objection. The question was not

Sustained.

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this engine but, quote, similar engines. question? MR. NIKAS: Your Honor. BY MR. NIKAS: Q.

Is that the

Let me rephrase the question,

Are the compression ratios that you cited as being

necessary, your compression test, consistent with the MerCruiser standards for the V8 engines that are published with a specified compression ratio? MR. ROTONDO: open-ended question. THE COURT: BY MR. NIKAS: Q. I'll just ask this: Is there a specified compression Sustained. I'm going to object to that

ratio that you can find that MerCruiser publishes for this engine? MR. ROTONDO: THE COURT: question. A. For a 454 block, the compression pressure for a new Objection. I'll allow that

For this engine.

block should be around 150 psi. BY MR. NIKAS: Q. Is that the number that you used when performing your

compression test? A. That's the number we rate it on, yes.

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Q.

Now, kind of lost in the testimony yesterday, I

guess, was approximately how many operating hours are on this engine? A. I believe 180. I'm not certain of the exact number.

I believe it's around 180. Q. In terms of a marine engine, where is that in the

life span of the designed life span of that engine? A. Probably about 10 percent. Usually marine engine

with closeness in cooling like this, fourteen, 1600 hours at least, depending on how they're run. Q. A. Q. So we're about 10 percent of the way along? Yeah, about that. When you pulled the head and were able to look inside

the cylinders, you testified that you saw scoring, correct? A. Q. That's correct. I believe there were some criticism yesterday about What did you do

your efforts to preserve the engine.

following the disassembly of the engine and why did you do it? A. Well, after we disassembled the engines and

discovered the excessive scoring and the severity of the scoring in the cylinders, we deemed the engines not serviceable. Q. Why is that?

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A. Q.

At that point those engines could not be reused. What is it about the cylinder scoring that makes that

engine block unrepairable or irreparable? A. The scoring was so deep it would have had to be

machined and oversized pistons and would not bring it to specs. Q. A. So when you say "machined," what did that mean? Means removing the engine blocks from the boat and

put them on a boring machine, actually changing the engine block. Q. A. Q. A. Changing it how? Dimensions of the cylinders. How would they change? They'd have to be increased. I don't any if they

could have been increased enough to even have those engine blocks work. Q. So it's like repairing a gouge by sanding it and

sanding it until you get to where you can't see it anymore? A. Q. A. Q. A. Q. Correct. Does that require the use of different pistons then? Yes, it would, definitely. Different rings? Definitely. And in terms of good practice, would you just -- I

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guess on one engine it was seven of the eight were scored, but four of the eight on the other. Would you just

overbore some cylinders and not others? A. Q. A. No, you can't do that. Why is that? The engine won't have the same power, it won't run

right, it won't be balanced. Q. That's why you decided to halt your preservation

efforts? A. Q. Absolutely. Now, you were talking to Mr. Rotondo about the

scoring and he asked you about the conclusion about hydrolocking that you had in your first inspection report done before the heads were removed; do you remember that? A. Q. Yes. The flushing of the system performed by Peter Mains

took place with the engine not returning, correct? A. Q. That's correct. Could the scoring have occurred with the engine not

running? A. Q. A. Q. A. Definitely not. Any possibility? No. No possibility.

Why is that? Because when an engine's hydrolocked, it cannot

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rotate.

So the pistons cannot go up and down inside their

cylinders. Q. Is it possible that when you were turning the engine

over for the compression test and the leak down test and to expel the water which was part of the pickling process, that that operation caused the scoring of the cylinders? A. Q. A. Absolutely not. Why is that? The engine wasn't under load and it was slow cranking And this is something that occurs over a long

speed.

time, long period. Q. So the hydrolocking could not have caused the

scoring? A. Q. No, definitely not. And the scoring of the cylinders, cylinder walls, was

fatal to these engines? A. Q. Yes, it was. And the water that flooded the cylinders came from

where or came through where? MR. ROTONDO: objection. Objection -- I'll withdraw the

I don't know if we're talking about the

flushing from Mr. Mains or talking about something else. So I object to the question. THE COURT: He just wants the question refined.

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BY MR. NIKAS: Q. In every case, what is the path of ingress of water

through these engines? A. Q. A. Q. Through the exhaust system. Specifically through the elbows? Yes, exactly. And that would have been true, just to save

Mr. Rotondo some time, in the hydrolocking instance and in the historical water ingestion; is that true? A. Q. Yes, that's correct. And the hydrolocking instance where we're flushing

the entire system through with fresh water, that water fills up and I guess you testified that it rolled back? A. Q. Yes. It flowed back into the engines, yes.

Now, this engine block essentially could not have

been saved, correct? A. Q. That's correct. The elbows could be saved I guess you testified,

correct? A. Q. A. Q. A. Q. Yes. Manifold? Typically, yes. Heads? They'd have to be reworked. Valves?

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A. Q. A. Q. A. Q.

Again, that's part of the cylinder heads, so yes. What about the rockiers? I'm sure, yep. Crank? Probably. Don't know that, but --

So what you would be repurchasing is a new, I guess,

long block? A. Q. Yes. And that would mean that all these other appertinents

could just all go onto the long block and the long block would have new cylinders, pistons and everything else as new, correct? A. Q. Yes, that's correct. What's the cost of a new 454? MR. ROTONDO: THE COURT: Objection.

Basis? Outside the scope and not

MR. ROTONDO: disclosed. THE COURT: MR. NIKAS: THE COURT:

Sustained. May I respond, Your Honor? It's outside the scope. I'm

sustaining it on that basis.

Can you point to me -- just

give me a page number and I'll look at it to see where it is in the scope. And then I guess the second objection was not

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disclosed. MR. ROTONDO: THE COURT: Plaintiffs' 27. MR. ROTONDO: MR. NIKAS: THE COURT: Plaintiffs' 27. MR. NIKAS: Your Honor. THE COURT: Okay. Last sentence of his expert report, Correct. Correct.

I assume we're talking about

In his expert report -Let's not speak to the jury. It's

Objection's sustained. BY MR. NIKAS: Q. Mr. Rotondo asked you if you visited the Sea Ray

factory; is that correct? A. Q. Yes, he did. I'm not sure he made that clear in the question --

how many times have you been to the factory? A. Q. A. Q. A. Q. A. I believe it's four times. And this is a Sea Ray factory? Yes, it is. In Tennessee? Yes, Knoxville. That's where this boat was built, right? Yes.

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Q.

When you were at the Sea Ray factory, did you see

MerCruiser personnel at that factory? MR. ROTONDO: THE COURT: MR. NIKAS: Objection.

Sustained. Your Honor, does not page 5, line 23

through page 6, line 2 -THE COURT: doesn't. It does not. I'm looking at it. It

And this is your expert witness, okay?

BY MR. NIKAS: Q. When you were pickling the engine, on page 11, line

16, Mr. Rotondo asked you if you removed the sparkplugs and then turned the engine over. A. Q. A. Q. A. car. Q. A. Q. So the starter -- starter is mechanical, isn't it? Mechanical and electrical. Electrical impulse pushes the starter -- injects the Yes. You removed the sparkplugs for what purpose? So that the water would have someplace to go. How do you turn the engine over then? With a starter motor, just like you would start your Do you recall that?

starter and the starter gear turns? A. Q. Yes, that's correct. So when you push the starter without the sparkplugs,

what happens?

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A. Q.

The engine rolls over freely. And does that enable you to move the pistons and the

cylinders? A. Q. Yes, that's correct. So you can actually look at each cylinder as you're

doing that process? A. Q. We can see what comes out, yes. And then when you remove the heads you can do the

same thing? A. Q. A. Q. Yes, that's correct. You can turn it so you can see the cylinders? Yes, that's correct. And is that the process you used when you determined

the extent of the scoring? A. Q. Yes. By the way, when you were seated at the helm of the

boat to turn the starter over -A. Q. A. Q. A. Yes. -- how far is it to the engine? Maybe 4 or 5 feet at the most. Can you see that far? Yes, I can. MR. NIKAS: THE COURT: No further questions, Your Honor. Thank you.

Mr. Rotondo, you can start whenever you're

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ready. Do you want to take that exhibit off the screen? MR. NIKAS: THE COURT: copy? MR. NIKAS: THE COURT: My copy. Thank you. Certainly. Is that your copy or the official

RECROSS-EXAMINATION BY MR. ROTONDO: Q. Mr. Wicander, did you testify this morning that the

specification for compression for this particular engine was 150 psi; was that your testimony? A. Q. For a 454, that was my testimony, yes. Plaintiffs' 26, which I believe is your mechanical. All right. Plaintiffs' 26. If we can go up to the top part of Where it says "acceptable."

At the time you were doing these tests you thought the acceptable compression pressures were 130; is that right? A. Q. A. Q. That would be acceptable for a used engine. That's what you testified to, correct? Yes. And in fact, when you testified yesterday about this

report, that's the number you used, 130 psi, isn't it?

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A. Q. A. Q.

That was -- yes. You didn't testify about 150 yesterday, did you? No. And when you testified at your deposition about

compression tests in 2004, you used the number 130 again, didn't you? A. Q. Yes, I did. And yesterday when you testified, do you recall being

asked a question about what MerCruiser, what its service bulletins indicate that the compressions should be? A. Q. As far as a minimum, yes. Well, do you remember being asked the question

yesterday, Are you aware that MerCruiser service bulletin indicates that compressions above 100 pounds per square inch are acceptable? A. Q. Yes. And you said, Acceptable, yeah, that is their Wasn't that what you said?

specification. A. Q.

Yeah, I believe it is. And so today your opinion is that it's 50 percent

higher than what you said yesterday; is that right? A. I believe the question that I was asked was what a That was the way I

new 454 would have for compression. understood it. Q. A new one.

But didn't you say yesterday that this

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MerCruiser service bulletin indicates compressions above a hundred pounds per square inch are acceptable? A. Q. A. Q. Yes, that's correct. And you knew that? Yes. And it's true that every single one of those

cylinders that you tested, all 16 of them were above a hundred pounds per square inch; isn't that right? A. Q. That's correct. We can go back to 26. The bottom sentence of your -- on page 2 states, On the basis of the mechanical inspections reported above, we are of the opinion that both engines have been seriously damaged as a result of hydrolocking that occurred on or about June 9, 2001 and require replacement. A. Q. Yes. And you told us yesterday that the hydrolocking Correct?

occurred because of fresh water being put in the system? A. Q. Yes. And you're not aware of those engines never -- let me

not have three negatives in one sentence. You're not aware of any situation where the engines did not work before June 10, 2001; isn't that correct? A. Q. That's correct. You were asked some questions about pickling; do you

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recall that? A. Q. Yes. All right. And you told us yesterday that both --

that you and MerCruiser had the same protocol? A. Q. Yes. And that you understood that the protocol required

you, when you were pickling, to put in new sparkplugs and run the engine until you got to 1300 rpms and you were at the normal engine temperature; isn't that right? A. I don't recall the changing of the sparkplugs. We

always try to get the engines running first. Q. But we talked about this yesterday. You understood

the protocol required you to change the sparkplugs, right? A. Q. At some point, yes. And you did not change the sparkplugs on June 11 when

you got the engine running; isn't that right? A. Q. That is correct. And you did not -- you told us yesterday that the

engine was not running well? A. Q. That's correct. And you also told us yesterday that you thought there

might be moisture in those sparkplugs, correct? A. Q. I believe so, yeah. You were looking at your ledger when you were talking

to Mr. Nikas; do you recall that?

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A. Q. A. Q. A. Q.

Yes. And he pointed out to you an entry for 7/31? Yes. And it was a reference to launching a boat? Yes. All right. You did your measurements -- you told us

yesterday that you did your measurements on or before July 10, correct? A. Q. A. Q. I don't remember the date. Let me just show you your transcript. If I said it, I said it, that's fine. If I can ask you to turn to page 74 of your Look at lines 12 through 16.

transcript.

Does that refresh your recollection that you performed those measurements of the exhaust system at some point on or before -A. Yes, I faxed in the results, correct. MR. ROTONDO: thank you. THE COURT: Whenever you're ready, Mr. Nikas. I don't have anything further,

FURTHER REDIRECT EXAMINATION BY MR. NIKAS: Q. Very quickly and hopefully we'll get you out of here

never to return.

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Going back to the issue that Mr. Rotondo started with, if we can go back a little bit further and give it some context. The cylinders you said the other day go up

and down, they turn the crank shaft which is in turn connected to the propeller shaft which moves the boat through the water, correct? A. Q. A. Q. A. Q. Yes. These parts rotate? Yes, they do. Is that the correct term? Yes. And when things are moving around in a circle, is

balance important? A. Q. A. Very important. How important? Extremely important. It's like having a tire out of

balance on your car, you'll feel it thumping and vibrating. Q. An engine definitely has to be balanced.

Does the fact that the compression ratios in the port

engine vary as much as -- these are the same figures that appear in your inspection report. this port engine? A. Q. A. 135. And the low is? 105. The high is what on

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Q. A. Q.

Is that a significant difference? Yes, it is. That would be a threat -- would that difference be a

threat to the long-term integrity and operation of the engine? A. Q. A. Q. Absolutely. What about on the starboard engine? Not as bad, no. So the starboard engine was relatively in good shape

compared to the port? A. Yes. MR. NIKAS: Your Honor, at this time we'd like It's now been

to introduce Plaintiffs' 33 into evidence. referenced by Mr. Rotondo -THE COURT:

You can just -- you want to offer 33

because it's been referenced by Mr. Rotondo? MR. NIKAS: THE COURT: MR. NIKAS: Twice now. That's not a sufficient basis. In the Second Circuit it should

constitute waiver, Your Honor. THE COURT: basis. I said that's not a sufficient

You made your waiver argument outside the presence Don't repeat it now.

of the jury and it was rejected. It's preserved.

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BY MR. NIKAS: Q. Mr. Rotondo went through the protocols contained in

Exhibit 33, which is the MerCruiser service bulletin on gasoline engines and water intrusion? MR. ROTONDO: THE COURT: he asked. BY MR. NIKAS: Q. Well, he started with the first few steps of the Objection. Why don't you go to what

Sustained.

pickling procedure, correct? A. Q. Yes. Which would be determine if there was water present,

try to expel the water, start the engine, run it at 1300 rpms until it reaches normal operating temperature; do you recall that? MR. ROTONDO: I object. One or two questions

that were asked today about putting the sparkplugs and 1300 rpms, but I didn't go through the whole list today. THE COURT: That's correct. Sustained. I have notes as to

exactly what's covered. MR. NIKAS: THE COURT: MR. NIKAS:

Under Rule 106, Your Honor -Sustained. It's outside the scope.

No further questions. Nothing further. You may step down.

MR. ROTONDO: THE COURT:

Thank you, sir.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. outside.

THE WITNESS: THE COURT:

Thank you.

Mr. Rotondo, I thought the witness

was sort of fast yesterday. MR. ROTONDO: THE COURT: MR. NIKAS: Ask him to slow down?

Yes, please. Your Honor, one moment, please.

(Pause.) MR. ROTONDO: Your Honor, we had Mr. Davis wait

So we just went to get him. THE COURT: We're not sequestering witnesses. Mr. Nikas and I agreed that we

MR. ROTONDO:

would keep our expert witnesses outside. THE COURT: Okay. Thank you. I didn't know

Could I have our witness take the stand, please. THE CLERK: remain under oath. THE WITNESS: Yes. May I remind you, sir, that you

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GREGORY DAVIS, called as a witness, having been previously duly sworn, was examined and testified further as follows:

DIRECT EXAMINATION (Resumed) BY MR. ROTONDO: Q. Mr. Davis, I'd like to pick up where we left off

yesterday, but I'd like to ask you to slow down just a little bit when you speak. A. Q. Okay. All right. We've reviewed a fair amount of your

background, Mr. Davis, and you told us a lot of different types of survey work that you do. You mentioned that you

also do something called appraisals -A. Q. Yes. -- is that correct? What are appraisals? It's a damage appraisal. We generally get hired by

the insurance company when there's been a claim reported to the insurance company, some type of damage to the boat or the motors. And we will go out and look at the damage And then we'll write an

to assess what the cause was.

estimate to complete the repairs and submit that information to the insurance company. Q. And what different types of boats do you do

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appraisals on? A. Q. Mostly recreational boats. What different parts of the boat do you do those

appraisals on? A. We do them both on the hull and also on the

machinery, the engines and the equipment, whether it be an inboard, a stern drive, or an outboard. Q. A. Q. For how long have you done that kind of work? Since the company started, so 34 years -- 31 years. And you told us that you've looked at, I believe you

said, thousands of boats? A. Q. Yes. All right. And of those sort of -- of that number,

how many, breakdown roughly between surveys and appraisals? Surveys as in talking to people who are

buying or selling a boat as apposed to appraising for damage? A. The majority of our work is done for insurance 70 percent, probably, of

companies on damage appraisals.

our total volume is done as damage appraisals for insurance companies. Q. A. Q. A. Do you have any professional certifications? Yes, I do. And what are they? I'm a certified marine surveyor by the National

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Association of Marine Surveyors.

I was certified in 1978.

And I have other certifications in other things, but they're not directly related to being a marine surveyor. Q. And what is the National Association of Marine

Surveyors? A. National Association of Marine Surveyors is the

oldest professional organization for marine surveyors in the United States. United States. There are members outside of the And it is a

It was founded in 1960.

professional association for education of its members and -- the members participate in various organizations, other organizations related to boating safety or the manufacture or safety standards recommended for both recreational boats, commercial hall, and then also cargo. Q. Have you held any positions in the National

Association of Marine Surveyors? A. Q. A. Yes, I have. Can you describe what positions you've held? I have been the chairman of their Insurance

Committee, which is organized to solicit benefits for the members from a professional insurance basis and also health insurance, whatever. I'm currently chair of the I am also I have served And I was

Yachts and Small Craft Technical Committee. currently chair of the Education Committee. in the past on the Communications Committee.

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recently elected the national vice president and will take office in about a week as national vice president. Q. Do you belong to any other professional groups other

than the National Association of Marine Surveyors? A. I'm a member of the Society of Naval Architects and

Marine Engineers and I serve on the Safety Committee for them also. Q. And what does your work on the Safety Committee

entail? A. It has to do with fire safety standards on

passenger-carrying vessels. Q. A. And did you go on to any other professional groups? Yes. I'm a member of the National Association of

Fire Investigators, I'm a certified fire and explosion investigator. I have -- the company is a member of the American Boat and Yacht Council. for recreation boats. They write the safety standards

I have served on their board of

directors and currently serve on their technical board. I'm a member of the International Association of Arson Investigators. And there are others that are not coming to mind off the top of my head. Q. You said you have served on two different technical

committees, the American Boat and Yacht --

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A. Q.

Council. -- Council and then the National Association of

Marine Surveyors; is that right? A. Q. Yes. What does your work on those committees generally

involve? A. The National Association of Marine Surveyors, Yachts

and Small Craft Technical Committee, I chair that, and it's my job to disseminate information to our membership that pertains to yachts and small craft, answer questions from our members when they're out on survey. asking for technical advice. I get calls

I host a web site for the

Yachts and Small Craft Technical Committee as a part of my company's web site, which is available through -- to our members through the organization's web site. The American Boat and Yacht Council is a nonprofit organization. And as I said earlier, their job is to

author and maintain safety standards regarding recreational boats. There's a process for that. The

compliment -- there's a requirement in the American Boat and Yacht Council that the members of their organization be -- there are boat manufacture members, there are government members, and then there are members that represent the public. And in my position as a marine

surveyor I am the, quote/unquote, public representative

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compliment they have to have for validity to their standards. On their technical board, it is my job on the technical board to review all of the standards that come through each year in cycle for renewal. Once they've been

completed by a committee, the technical board reviews each one of the standards and can make specific line item suggestions or you don't make any line item suggestions and you approve or don't approve the standard prior to it being published. That publishing cycle is coming through

for July of this year, so so far since about November I've reviewed about 28 standards and there will be 34 that will come up for publication in this cycle in July. Q. A. Q. A. Have you ever testified as an expert witness before? Yes. And is that in state court or federal court, or both? It's both. MR. ROTONDO: Your Honor, I'm not sure if your

practice requires it, but if it does, we offer Mr. Davis as an expert witness. THE COURT: want to voir dire. MR. NIKAS: THE COURT: I would like to voir dire, actually. Oh, okay. He's accepted as such unless you

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. ROTONDO: Q. A. Q.

VOIR DIRE EXAMINATION

Good morning, Mr. Davis. Good morning. I just wanted to clear up some things that were said

yesterday during your initial examination. You were in what position when you started in the marine industry? A. I started out -- marine industry, as a surveyor.

Marine surveyor. Q. Did you have a mechanical background before that or a

licensed officer's background before that, or any other background? A. Q. No. What training did you have, then -- what specialty do

you have, actually, in surveying? A. Q. A. Q. Yachts and small craft. Do you have any instruction in naval architecture? No. Do you have any instruction in construction of small

boats? A. Q. No. Do you have any instruction in the installation of

component systems on small craft? A. No.

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Q. A. Q. A. Q.

Do you have any instruction in engineering? No. Did you have any instruction in mechanics? No. Have you ever had any instruction on exhaust system

installation? A. Q. No. Have you ever had any instruction on inspection of

fiberglass composite systems? A. Q. A. Yes. What instruction have you had? Review of the Marine Survey Manual by Gibbs & Cox in

1960 and then instruction on the job be as an apprentice under other senior surveyors. Q. A. Q. A. Q. A. That's the FRP Manual by Gibbs & Cox? Yes. Published? 1960. Forty-eight years ago? Yes. There are other manuals out there that I've reviewed, other books. Q. To whom did you serve your apprenticeship prior to

becoming a marine surveyor? A. The companies that I worked for, my job designation

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was marine surveyor, okay, even though I was apprenticing. When I worked for the British firm, I apprenticed under two surveyors. Irv Frigon. Q. A. Q. What was the British firm? Graham, Miller & Company. What was your -- isn't Graham, Miller & Company a One was Homer Marxer and the other was

cargo surveying firm? A. Q. Yes. Correct me if I'm wrong, but Graham Miller doesn't do

any recreational craft, at least they did not at that time, correct? A. Q. They did in the office in Chicago. You've been retained to offer an opinion on what

topics? MR. ROTONDO: THE COURT: MR. NIKAS: qualifications. THE COURT: BY MR. NIKAS: Q. Did you perform the mechanical inspection on board Sustained. Objection, Your Honor.

Sustained. It goes to the issue of his

this vessel? A. Q. No. How long have you been a member of NAMS?

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A.

Since 1978. MR. ROTONDO: Objection, Your Honor. This is

going beyond the basic voir dire. THE COURT: He asked how long has he been a

member of this association. BY MR. NIKAS: Q. A. How long have you been a member of the ABYC? You know, I can't tell you for sure because I don't But it's at least 20

remember exactly when I joined. years. Q.

And what's the BoatU.S. Speakers Bureau listed on

your CV? A. That's an organization BoatU.S. actually invites you They set up the

to participate in their speakers bureau.

arrangements, basically groups contact them looking for speakers to speak before them. Q. A. And just so the jury understands, what is BoatU.S.? BoatU.S. is the boat owners association of the United It is a nonprofit organization set up in the

States.

'70s, I believe, sometime in the early '70s, with an interest in being a boater's advocate on Capitol Hill. They have another division called the Insurance Division where they offer insurance to their members at preferred rates. And that's how I got to know them, was through

their Insurance Division.

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Q. A. Q.

They're pretty much like AAA? In some ways, yes, I'd say it's a lot like AAA. They lobby, they advocate, they publish technical

things, they provide insurance, they do all sorts of things, correct? A. Q. A. Q. A. Correct. Are you a member of BoatU.S.? Yes. How long have you been a member? Since the '80s. I have the membership card in my

wallet, I can look. Q. A. Q. It's all right. Yeah. You testified -- you told Mr. Rotondo that you've Long time?

been an expert before? A. Q. Yes. In the last 12 months how many times have you been

retained to provide expert testimony? A. How many times retained? Fifteen or 20, somewhere in

there. MR. NIKAS: being certified. THE COURT: I want to be certain based on one of I have no objection to this witness

the questions that was just asked, the defendants disclosed the expert report to the plaintiffs?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 expert. need one?

MR. ROTONDO: THE COURT:

Yes.

Do you have an extra copy in case I

MR. ROTONDO:

I do believe I have an extra copy.

I don't think there are any marks on there. THE COURT: Thank you. He's qualified as an

DIRECT EXAMINATION (Resumed) BY MR. ROTONDO: Q. A. Q. Mr. Davis, by whom were you hired in this case? We were hired by your law firm. And you knew that we were representing Sea Ray; is

that correct? A. Q. Yes. Have you ever been hired by either a lawyer or by

Sea Ray in connection with any other case? A. Q. Yes. All right. And have you ever had a case adverse to

Sea Ray? A. Q. Yes. And in general terms, what were you asked to do in

this case? A. We were asked to inspect Mr. Mains' vessel, his boat,

and to render an opinion on the condition and the value of

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that boat at the time we inspected it.

And then an

opinion as to the cause of the damage and repair costs for all the damage. Q. A. And what steps did you take to carry that out? We came out here to Hartford. And myself and an

employee, Jerry Starczowsky, met up with an attorney from your office. And then we went to Brewer Pilots Point, And we completed an inspection of The inspection that

Mr. Mains met us there.

the boat and the engines in the boat.

I completed was what I would do if I was doing a condition inspection on a used boat for a potential purchaser. And then after that was completed, we followed or -I believe we followed Mr. Mains to his home, I know we got to his home, I wasn't driving, and inspected the engine parts in the basement of his house. been removed. Those parts that had Some of the

Not all of the engine parts.

engine was still in the boat. the basement of his house.

Inspected those parts in

And then we went back to the

airport and ultimately wrote our report. Q. A. Q. Approximately how long did the inspection take? We were here in Hartford for one day. And did you make an assessment of the overall

condition of the boat? A. Q. Yes, I did. And I'm going to put down on the screen here

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Exhibit 20-1. A. Q.

Is that one of your photographs?

Yes, it is. And when you were doing your inspection of the boat,

did you walk around the boat? A. Q. Yes, I did. All right. And did you -- were you aware of concerns

about moisture content, moisture in parts of the boat? A. Q. Yes, I was. All right. And what did you do to assess -- let me

ask you this.

First of all, you inspected the entire boat

as part of your inspection? A. Q. Yes, I did. And what did you do to investigate the concerns or

issues about moisture? A. The boat was examined visually, sounded with a

phenolic hammer, which is a plastic hammer, and then it was tested for moisture with a GRP33 moisture meter. Q. A. Why did you use a hammer? Hammer sounding is to test for delamination. You'll

get a dull retort.

Retort is like the ringing of a bell.

If the -- the fiberglass material that the boat's made out of is a cloth, fiberglass cloth, and then a liquid resin, which is like a glue. Those two materials don't have very

good structural properties by themselves, but joined together they do. It's kind of like reinforced concrete

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would be the principle behind it.

If you don't get a good

bond -- and these are done in individual layers, there's a lay-up schedule in how you build a boat -- if you don't have a bond between those layers, you'll get a dull sound and also you've lost strength in the hull. That's why you

hit it with a hammer to determine if there's any delaminations because that can be an area where you've got a problem structurally with the boat. Q. And you talked about a moisture meter. It's 20-26. Is this a

picture of the moisture meter? A. Q. Yes, it is.

Did you put the moisture meter on different parts of

the boat; is that how it works? A. Yes, the moisture meter was run over all of the

surfaces of the boat except where the bottom paint was at on the bottom of the point. I put the moisture meter on

the bottom of the boat, the meter has a scale from zero to 15. This is a relative scale. The meter is actually Placing the meter on

gauged out for dry, moist, and wet.

the bottom of the boat pegged the meter up in the wet range, up in the 15 area. That is indication that there Bottom paints often have

is metal in the bottom paint. metal in them.

Bottom paints are there to keep algae and

barnacles and marine growth from growing on the bottom of the boat. Since the meter was getting pegged no matter

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where I put in on the bottom where the bottom paint was at, I did not test the bottom of the boat because I was getting skewed results. areas of the boat. Q. Showing you now what's been marked as Defendant's But I did test all the other

Exhibit 20-28, that's your moisture meter in a particular location. A. Can you tell us what's shown here?

What I've done here is underneath this particular

windshield wiper arm base, which is at the mid-top of that photograph, just underneath the brownish area which is a canvass that's covering the wind screen, I've marked out the water or the wet area that's shown up on that meter at that particular location. So the triangle that's marked And then when you go

in the tape is what came out wet.

outside of the tape area, it's dry, the meter's reading dry. Q. A. And can you tell us what the size of that area is? I think the -- the tape area is less than 1 square And total area of that portion of the deck, that's

foot.

the top of the deck house, what I did is estimated the total area of the deck at 130 square feet because that's all one part, the deck is made separately from the hull. Q. Let me just -- let me show you what's marked as Does this show the total area of the deck? Is

30-34.

that this part here?

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A.

Yes.

The total area of the deck is from that area

all the way up to the pointy part, the bow. Q. And so what was the point, then, in putting the tape

and the measurements in 20-28? A. Well, the first reason for putting the tape there was

to determine what's the size of the wet area that I'm getting with the meter. And then once that's determined,

I'm looking at that particular size of area in relationship to the total deck area to get an idea of what's the scope of the potential problem. Q. A. And what did you find? It's less than -- well, there are two areas -- three And in total, those three areas

areas that had moisture.

are less than 1 percent of the total square foot area of the deck. THE COURT: When you're at a good point, it will Is this a good time?

be time for our morning break. MR. ROTONDO: THE COURT:

Yes, Your Honor.

We'll take a 20-minute recess.

(Whereupon, a recess followed.)

THE COURT:

Please be seated everyone.

Bring the jury in. (Whereupon, the jury entered the courtroom.)

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THE COURT: BY MR. ROTONDO: Q.

Please be seated everyone.

Before we broke, Mr. Davis, I think we were talking

about the area near the windshield that you talked about; do you recall that?