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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 3, 2008

JURY TRIAL VOLUME III

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 THOMAS WICANDER 5 THOMAS GREAVES 6 7 8 9 DEAN BECKMAN 10 GREGORY DAVIS 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEFENDANT'S WITNESS PLAINTIFFS' WITNESS

TABLE OF CONTENTS

DIRECT 321 449

CROSS 403 474

REDIRECT 440 482

RECROSS ---

DIRECT 485 538

CROSS 507 --

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 done. juror. THE COURT:

9:04 A.M. I believe we may be waiting for a

We are waiting to get the equipment fully

operable. (Pause.) THE COURT: Before our jury comes in, just let

me ask, I know there was an objection to the admission offering of the expert's report. offer that, Mr. Nikas? MR. NIKAS: THE COURT: MR. NIKAS: THE COURT: lay a foundation. Are you going to try to

Just so I know.

We probably will, Your Honor. Because I have never admitted one. Then no, Your Honor. You're free to go ahead and try to

It's not a business record. We can do it through testimony,

MR. NIKAS: Your Honor. THE COURT:

Okay.

That's the way it's usually

We'll bring the jury in. You can retake the witness stand, sir. (Whereupon, the jury entered the courtroom.) THE COURT: Good morning, ladies and gentlemen.

Please be seated everyone. Whenever you're ready, Mr. Nikas.

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MR. NIKAS:

Thank you, Your Honor.

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

DIRECT EXAMINATION (Continued) BY MR. NIKAS: Q. A. Q. A. Q. Good morning, Mr. Wicander. Good morning. How are you today? All right. All right. Yesterday we were talking, I think the last issue we were discussing was this issue of pickling the engines? A. Q. Yes. We were up against a deadline and I'm not sure we Can you Yourself?

went into that in the depth it probably required.

summarize what that process is and what that procedure consists of? A. Sure. Essentially we pull the spark plugs out of the

engine, crank the engine over with the starter, get as much water out as we possibly can, and then we introduce oil into the cylinders, either down into the intake or in this case we did it through the spark plug holes.

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Q. A.

What's the purpose behind this? We like to coat the internal workings of the engine

with oil so it doesn't rust or get damaged any further. Q. You were able to tell that the procedure was at least

somewhat successful in that water was expelled from the engine? A. Q. Yes, I believe it was. Now, at the time you performed this procedure, would

it have been possible to determine with complete accuracy as to the cause of the engine's failure? A. No. I mean, we assumed that it was the hydrolocking

at that point. Q. A. Q. Why did you assume that? The cylinders were full of water. Were you able to tell -- were you able to look into

the cylinders at that time? A. Q. A. No. Why not? Spark plug hole was very small, less than a half inch

in diameter. Q. Are you able to look onto the top of the cylinder

from any other advantage point? A. Q. Only if you disassemble the engine. Had you disassembled the engine at that time in June

of 2001?

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A. Q. A.

No, we had not. What would the process of disassembly consist of? First we'd drain the engine down as much as we could

of antifreeze, remove exhaust manifolds, remove an intake manifold and pull cylinder heads. Q. A. What is the cylinder head? Cylinder head is basically the cap that goes over the It houses the

top of the pistons in the cylinders.

valves, exhaust valves and intake valves. Q. And the valves were the items that you were talking

about as part of the compression process? A. Q. A. Q. A. Q. Correct. The intake of the exhaust valves? Yes. When was the pickling of the engine completed? I believe it was done on that Monday. And as part of that process, did you change any

components or renew any components or replace any components? A. Q. No, we would not. The oil you added to the cylinder, what type of oil

was that? A. Typically we use a mixture of Marvel Mystery Oil and

lay-up oil that we use for winter. Q. And the purpose of that is to displace the moisture?

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A.

Displaces the moisture, it's a little bit stickier

oil that coats the walls and stays there. Q. A. Is it higher viscosity oil? I wouldn't say higher viscosity, but the consistency

of it makes it hang better on the cylinder walls. Q. Just to make it clear, that time in June when you

performed the procedure on the engine was not the first time you had actually seen this boat, correct? A. No. I had actually inspected the vessel up in

Haddam, Connecticut. Q. A. Q. A. When was that? Would have been a few weeks earlier. And the purpose behind that inspection? I had gotten a verbal list from Mark Verone at

Bassett Boat through Sea Ray, there were a few items that were damaged and maybe not repaired properly at the factory, and they wanted me to look at it. Q. A. Q. A. Q. A. Q. A. Who at Sea Ray authorized that work for you? That was David Wade. That's from the Sea Ray factory? Yes. Was that work ever performed? No, it was not. Do you know why it wasn't performed? They were bringing the boat to us 11th of June to

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start the work, and then they had the hydrolocking issue and then we just went on from there. of those repairs. Q. Now, the very last thing that we discussed yesterday We never took care

were the results of the leak down and compression tests? A. Q. Yes. I believe you testified as a result of the readings

that you got while performing those tests, that the engines were damaged and unhealthy; is that correct? A. Correct. MR. NIKAS: Your Honor, I believe we laid the

inspection for the mechanical inspection report yesterday. I'd like to admit Plaintiffs' 26 in evidence. THE COURT: I'm pretty sure we admitted it.

Which one are we talking about? MR. NIKAS: The mechanical inspection report.

It would have been the last thing we did, and I'm not sure we had time. MR. ROTONDO: or not. report. THE COURT: This isn't the expert report. This I don't remember whether it was in

I would object to the introduction of an expert

is the inspection report.

Plaintiffs' 26, by my notes, It was towards the end

was admitted yesterday afternoon. of the day.

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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 admitted.

MR. NIKAS:

It would have been the last thing

THE COURT:

There was an objection, I said you You then asked

hadn't laid an adequate foundation.

several other questions, and I said I think he's laid an adequate foundation now, and I admitted it. MR. NIKAS: this morning -THE COURT: MR. NIKAS: introducing. that. That was 27. Which we had no intention of I was confused about your comments

I thought maybe you thought that this was

I just want to make sure it was clear that this was

part of the work that he performed. THE COURT: BY MR. NIKAS: Q. Looking at Exhibit 26, both the leak down and Twenty-six was admitted yesterday.

compression test on both the port and starboard engines confirmed that damage had occurred to them? A. Q. Yes. And as part of your work as a mechanic and also

supervising other mechanics in the repair and maintenance of Mercury engines, everything was consistent with the fact that there was water in the engine? MR. ROTONDO: Your Honor, I object to the

leading nature of this series of questions.

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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. Yes.

THE COURT: BY MR. NIKAS: Q.

Sustained.

When you performed the pickling of the engine, what

results did you see? A. Results from pickling? We saw water in the cylinders

when we first initially pulled the spark plugs out and were cranking the engine over. Q. And that physical evidence would lead you to believe

what? A. Q. It had ingested water, absolutely. That issue of water ingestion, had that ever been

covered in any of the materials that you were provided by Mercury Marine either through the certification process or in your work as a mechanic for Mercury? MR. ROTONDO: THE COURT: Objection, Your Honor.

I'll allow that.

We have a system called MercNet that whenever

we do repairs on an engine, we go on MercNet, put in the serial number of engine, and it comes up with a list of bulletins that apply to that engine. And one of those

bulletins was a water ingestion bulletin. BY MR. NIKAS: Q. Was there one water ingestion bulletin or were there

several? A. There have been several over the years, absolutely.

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THE COURT: point, correct? MR. NIKAS: THE COURT: MR. NIKAS: BY MR. NIKAS: Q. A. Q.

We're talking about Mercury at this

For the Mercury engines. Not Sea Ray? Correct.

The answer was several? Yes, there were several. You were first certified as a Mercury technician in

what year? A. Q. I believe it was 1989. And from that time until 2001, how many service

bulletins, approximately, discussed this issue of water ingestion? MR. ROTONDO: THE COURT: BY MR. NIKAS: Q. When reviewing these materials provided you by Objection.

Sustained.

Mercury, did these materials indicate what the cause of this problem was? MR. ROTONDO: THE COURT: MR. NIKAS: Objection.

Sustained. Your Honor, it's not being offered

for the truth of the matter asserted, but merely provide notice or knowledge for the witness.

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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 sidebar.

THE COURT: BY MR. NIKAS: Q.

Sustained.

In the course of your education, how often do you

consult these Mercury materials? A. Typically every time we work on an engine if there's

a problem that we don't know, other than a minor tune-up or something like that. Q. Are these bulletins issued on a regular basis or are

they issued on occasional basis? A. They're issued on occasional basis when there's a

need for it. Q. When a new service bulletin is issued, do you have an

opportunity to review them? A. Yes. Typically they're mailed to us and we also

review them on MercNet. THE COURT: Let me ask counsel a question at

(Sidebar discussion off the record.) BY MR. NIKAS: Q. Notwithstanding what is contained within the

manufacturer's service bulletins, would there be any other way to confirm -THE COURT: Just so we're clear, when we talk

about manufacturer, there are two manufactures here.

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BY MR. NIKAS: Q. The engine manufacturer's service bulletins issued by

MerCruiser, would there be any way to determine, either through physical evidence or any other type of evidence, what had caused the water ingestion in this case? MR. ROTONDO: THE COURT: Objection.

The basis is? The basis is, A, the question is

MR. ROTONDO:

confusing and vague, and I think it suggests certain things about what way or what may not be in manuals included in the question. THE COURT: BY MR. NIKAS: Q. Is there any physical evidence that you could look at Sustained.

in the engine to determine what the cause of the water ingestion was? A. Q. Not without disassembly. If you do disassemble the heads, is it possible to

determine what the cause is? A. Q. Typically. And in this particular case, were the engines ever

disassembled? A. Q. A. Not until later. When were they disassembled? A couple years later.

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Q.

And in the process of disassembly, can you talk about

what you did specifically in terms of removing components and then what you found physically when you looked at them? A. Sure. As we removed the exhaust elbows, we took the exhaust elbows off the exhaust manifolds and the inside of the exhaust manifolds where the exhaust should be and no water should be, it was very rusted, leading us to believe that water came in through the exhaust. Q. Actually, I don't want to discuss any of your I just want to talk about what you did.

opinions yet. A. Q. Okay.

And what you saw. Did you remove the exhaust trunking?

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

The hoses? The hoses. Yeah, that would have been first. Then what would the next item to be removed? The exhaust elbows. On that issue, I'd like to show you something as a

demonstrative exhibit. Your Honor, we received permission from the defense to use this just as a display piece. THE COURT: May I approach?

Have we marked it for

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identification? MR. NIKAS: THE COURT: that. 160 for identification. MR. NIKAS: BY MR. NIKAS: Q. Now, even though I represented this is an exhaust What is it really? I put it on the paper, Your Honor. Plaintiffs' next, which would be 42. It will be a higher number than

elbow, that's not entirely accurate. A. Q. It's half of one. Half of an exhaust elbow.

Can you show the jury the inside portion of the exhaust elbow and explain how it's situated? A. Sure. The exhaust elbow, the other half would be here, of course, sits on top of the exhaust manifold like this. The exhaust would travel out of the manifold up through this passage here and out this way. In this area here is water jacket, keeps the exhaust elbow cool, and exits here just at the end and mixes with the exhaust gases in the hose. Q. Now, on an automobile exhaust, there's no water

flowing around the exhaust pipe, correct? A. Q. Correct. Why is there water flowing around this one?

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A.

Well, they need to keep the entire exhaust system It's a fire hazard.

cool until it exits the boat. Q. A. Why is that?

The extreme heat of the engine, the exhaust.

It's

all contained inside the boat under the hatches. Q. gas? A. Right up top here. It exits the elbow right here and So where exactly is water introduced in the exhaust

mixes in with the exhaust gases in the hose itself. Q. Under the manifold on the, I guess, taller part of

the elbow, what's underneath that manifold? A. Under this manifold here, this would bolt to the top Under the manifold is the cylinder head.

of the manifold. Q. A.

The cylinder head contains -Contains the valves and the ports for allowing the

air in and fuel mixture and the exhaust out. Q. And I think you explained yesterday on the intake

stroke, the intake valve opens and it draws in air? A. Q. Correct. And on the power stroke, the exhaust valve opens

expelling gas, correct? A. Q. On the exhaust stroke, right. Exhaust stroke. When either of those two valves is open, is there an opening essentially from the elbow all the way down to the

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top of the piston? A. If the exhaust elbow is open -- or exhaust valve is

open, yes, absolutely. Q. A. Or the intake valve? The intake valve, yeah, if that were open it would be

through the intake, correct. Q. Typically would the intake and exhaust valves be open

at the same time? A. Typically you don't want them to, but in reality they

are for a short duration, yes. Q. A. Q. Where both would be open? Yes. Now, can you explain to the jury, to go back to

hydrolocking, how flushing fresh water to clean out I guess the saltwater out of the system could result in flooding the cylinders underneath those elbows? A. Sure. With the system -- the exhaust system with a

lift muffler system, basically a canaster like a 5-gallon bucket, say, and it has hoses coming from this exhaust elbow on the opposite side into that bucket, and then it has a hose going up and out of the boat and then a separate one that goes off to the side. If any point of

that exhaust system is near the same height as this exhaust elbow, without this engine running, you're injecting water into that system, you're essentially

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filling that bucket, it fills the hoses, and then it will run right back into the engine because that exhaust system is a little bit higher. Similar to like a gutter on your

house running the opposite direction. Q. Now, this boat in June of 2001 had what type of

exhaust system? A. Q. In June 2000 it had a lift system in it. And that requires the engine to be running or not

running when flushing it out? A. Q. A. It should be running, absolutely. Why is that? Because part of the exhaust system is higher. And

you're filling that container with water, you need the exhaust pressure to push the excess water out of the boat rather than have it come back towards the engine. Q. A. Q. As originally designed, this boat had a collector? I believe so, yes. That would have been how it would have been from the

factory? A. Q. Yes, I believe so. When flushing a collector exhaust system, is the

engine running or not running? A. Q. A. In the manual it says not to run. Why is that? That was -- the reason they don't want it to run or

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you don't need to run it is because all the exhaust components are a little bit lower and theoretically the water is going to flow out of the boat, out of the engine. Q. So when Mr. Mains flushed the exhaust with fresh

water, it got into the exhaust hoses? A. Q. A. Yes. And then how did it get into the cylinders? Well, it filled up the exhaust system coming out of

here, would drain into the exhaust system itself into that bucket, say. Once it filled up to a certain point that

was higher than this level here, it flowed back in through the exhaust. Q. A. And then did it drop down that vertical passageway? Correct. It would drop down through here into the

exhaust manifold and then into the cylinders. Q. Now, during this process, would water have gotten

into every cylinder? A. Q. A. Not necessarily. Why is that? If one -- if any of the cylinder's exhaust valves

were closed at the time, those cylinders typically wouldn't be flooded. Q. A. Q. Aren't all the exhaust valves open at the same time? No. Why is that?

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A.

If they all open and close at the same time, that

means all the pistons would have to be firing at the same time and it would vibrate right out of the boat, it would not run smoothly. So they time them to open and close at

different times so the engine runs smoothly. Q. Mr. Wicander -MR. NIKAS: Your Honor, can I have the witness

draw something for us? THE COURT: BY MR. NIKAS: Q. I'm going to move this closer to you. Can you kind of give us a layout of an engine like this, just a V-type engine. A. Q. A. Excuse my drawing. Sure. You may.

Where would the exhaust elbows be? Actually, the exhaust elbows would be mounted right

here typically. Q. A. And the exhaust valves? Exhaust valves would be here, lower valve here and

here. Q. A. Q. A. Q. Intake? Intake valve up on top, here and here. And where is the piston and the cylinder? This would be the piston here and here. What's the circle on the bottom?

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A.

This would be the crankshaft.

And this would be the

camshaft. Q. A. Q. A. Crankshaft turns what? Pistons are connected to the crankshaft. And the camshaft? Camshaft actually is what we call pushrods, push up

and they open and close the valves. Q. So could you, using a different color, trace the path

of water from the elbow to wherever it was in Mr. Mains' boat? A. Q. A. When the water came back in through the exhaust? Yes. Okay. Say the end of the exhaust elbow is here and here. The water would have come down in through the exhaust, flowed in through this valve and then on top of the piston. Q. A. Q. And sitting on top of the piston water is bad? Very bad. Why wouldn't the engine be able to start with water

sitting on top of the pistons? A. Well, water is a very dense liquid, it's very dense, And if this whole cavity were to fill up with

unlike air.

water, it would be essentially very strong and you can't compress water at all, it wouldn't allow it to roll over.

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Q. A. Q.

That's the locking that you're talking about? That's called hydrolock, correct. Thank you, sir. THE COURT: Do counsel want that labeled for

identification like we did the others? MR. ROTONDO: THE COURT: BY MR. NIKAS: Q. In your inspection report, you noted that you saw the I think it should be.

We'll use the next number.

overboard relief hose in both I guess the port and starboard engines was higher than the top of the exhaust elbows? A. Q. Yes. Is that why water would flow back down into the

elbow? A. Q. A. Yes. Is that a typical installation? Typically we don't like to see anything higher than

the exhaust elbows for this reason. Q. Would that also be a problem if the engine is

running? A. May not be a problem when it's running. Not a good way to have it. Not a great

plan though. Q. A.

There's always some water in the exhaust? Yes, there is.

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Q.

That's the water that's expelled from the water

jackets? A. Q. For the coolings, correct. Going back to the disassembly process, we removed the What would have been

exhaust hose, we removed the elbows. taken off next? A. Q. The exhaust manifolds.

And the exhaust manifold is -- looks like what or

what does it do? A. It's yea long (indicating) and has four ports in it

for the exhaust gases to come out of each of the cylinders on that one side of the engine and then it connects with the exhaust elbow. Q. After you remove the manifold for the exhaust, what

would have been -- what did you remove next? A. Q. A. The intake manifold. The intake manifold does what? That's what directs the air fuel mixture into the

engine. Q. Does air come in through the intake manifold through

the intake valve into the cylinder? A. Q. Yes, it does. And I assume, then, that exhaust gas comes out from

the cylinder through the exhaust valve into the exhaust manifold through the elbow?

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A. Q. A. Q. A.

Correct. So now that's removed. What would go next?

The cylinder heads would be removed next. And is that a relatively simple procedure? I don't know how many fasteners there are, but

probably 18 or 20 off the top of my head. Q. When you talk about fasteners, what are you talking

about? A. Q. Bolts. Yea long (indicating).

How long did it take you -- how long does it take to

unscrew all those bolts and remove the head? A. Q. Twenty minutes or so. This isn't something you would routinely do as part

of an inspection every week or every month? A. Q. No, absolutely not. Is there a gasket between the head and like a

cylinder block? A. Q. A. Q. Yes, there is. Is that gasket reusable? No, it's not. Every time someone removes the head, they have to get

rid of the gasket? A. Q. A. Yes. Gasket is made of what? I believe it's a graphite material but has stainless

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steel rings around each cylinder.

The whole gasket and

those rings get crushed as they are torqued down. Q. When you talk about torquing down, if I've got my

piece of Ikea furniture and you have little bolts put together and you tighten them, is the tightening process or unloosening process different on the bolts on the cylinder head? A. Certainly. You want all the fasteners to be

tightened the same amount, so they give you a torque spec out of the manual, service manual, what to tighten them and the sequence to tighten them. Q. A. Q. A. Q. A. Q. A. Q. Where did do you get the sequence? It's out of the service manual. Service manual is provided by? Mercury Marine. The manufacturer? Correct. So you remove these, I guess, nuts from the studs? Bolts. Bolts from the studs. Sorry, bolts.

And then how heavy is the head? A. Q. A. Q. Very heavy. 80, 90 pounds, typically.

How many heads are there? Two per engine. On this boat there were?

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A. Q. A. Q.

Four. Are the valves in the head? Yes, they are. So once you remove the head, you also get rid of the

valves? A. Q. Correct. And then if you take out the head and after you

removed the head on this vessel, what did you see when you looked down into the cylinders? A. We saw little bit of rust, saw scoring on the

cylinder walls, that sort of thing. Q. A. Q. A. Q. A. Q. A. You saw what on the cylinder walls? Scoring. Scratches in the cylinder wall.

Is that something you would expect to see? No. No.

Is that something you would see in a healthy engine? No, definitely not. What causes the scoring? Scoring is typically caused by lack of lubrication

between the piston and the cylinder wall. Q. What's the lubrication between the piston and the

cylinder wall? A. Engine oil. Without the engine oil you would have

metal to metal, essentially. Q. So if you ran an engine, say, without the drain plug

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in the sump and all the engine oil left the engine by gravity, that would cause scoring? A. Q. Absolutely. But if all the engine oil that was supposed to be in

the engine is still in the engine, how do you get scoring? A. Scoring would be caused by water getting into the

cylinder to wash away any of the oil lubrication. MR. NIKAS: Your Honor, could I show the witness

this glass filled with oil? THE COURT: BY MR. NIKAS: Q. If this is a cylinder and that's a piston, how does You may.

the piston fit into the cylinder and how does the oil get coated around it? A. Piston obviously goes down into the cylinder, much

tighter fit than this, of course, and the oil could come up alongside the piston. Q. A. Q. A. And if I introduce some water, oil and water do what? They don't mix very well. So what's the water doing to the oil? The water is washing the oil away from between the

cylinder wall and the piston. Q. Does the water displace the oil immediately and

remove any lubrication from the cylinder? A. Pretty quickly, yes.

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Q.

And once that lubrication is gone, that results in

the scoring? A. Q. A. Q. A. Q. A. Q. Correct. Did you see scoring in both engines? Yes, I did. And did you also see rust in both engines? A little bit, yes. And rust, I guess, is a by-product of corrosion? Yes. During the process, from the time the boat first got

to you in June through the time the engine was disassembled, it looks like you completed what's called, I guess, an inboard water damage worksheet? A. Q. A. Yes. What's the purpose of that document? To get facts on as far as what weather conditions

were like and that sort of thing, engine serial numbers, all that. Q. And would this be something that you would fill out

every time you had a case of water ingestion? A. Q. Typically, yes. This is something that you want to fill out to

determine what? A. Q. We're trying to determine the source of the water. So you're just collecting information at this point?

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A. Q.

Correct. Who provided you with the water damage worksheet that

you completed for this boat? A. Q. A. Q. I believe Mark Verone from Bassett Boat Company. Bassett Boat is the -MerCruiser Sea Ray dealership. And did you personally fill out the water damage

worksheet in this case? A. Q. A. I filled out the copy, I believe. You filled out a copy -To neaten it up. We had one in the field and I

recopied it to neaten it. Q. A. Q. A. Q. A. Q. A. Q. So actually two copies? Yeah, I believe so. One more legible than the other? Correct. Did any of the numbers change -No. -- during the transcription process? No. And then is the completion of the worksheet

contemporaneous or very close to contemporaneous with the inspection that's performed? A. Q. Yeah. And is this something that is provided by Sea Ray or

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MerCruiser? A. I believe it was supplied -- I know I got it from

Mark, and I don't recall whether it was MerCruiser or Sea Ray. MR. NIKAS: Your Honor, at this time I'd like to

have Plaintiffs' 29 admitted. THE COURT: Mr. Rotondo? I have a question and I'm not sure

MR. ROTONDO:

it would be appropriate -THE COURT: witness? MR. ROTONDO: THE COURT: Briefly. Do you want to voir dire the

You can voir dire, certainly.

Mr. Nikas, it wasn't clear it me what subsection of the rule you were proceeding under. MR. NIKAS: We are trying to submit this as a

business record, Your Honor. THE COURT: Okay.

VOIR DIRE EXAMINATION BY MR. ROTONDO: Q. I'm going to show you what has been marked for

identification as Plaintiffs' Exhibit 29 and 30. A. Q. Okay. I want to ask you questions about these two

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documents. Those are the documents you were referring to in responding to the questions by Mr. Nikas? A. Q. Yes. As I understand your testimony, Exhibit 30 is in your

handwriting; is that correct? A. Q. A. Q. A. Q. Yes, it is. Exhibit 29 is in somebody else's handwriting? Yes. Somebody else put those notations there? Yes. And you just copied them onto what's been marked as

30 for identification? A. Q. A. Q. A. Q. Correct. Do you know who did 29? One of my mechanics. Do you know which one? I believe it was David Bird. And were you present at each and every moment when he

made all those notations? A. Q. A. I was present during all the testing. But you didn't make these notations? No, I did not. THE COURT: He did. Do you remember when we went over

the elements of the exception?

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MR. NIKAS: THE COURT: MR. NIKAS: THE COURT:

I do, Your Honor. You haven't covered them all. It's a record made -Don't argue. You haven't covered

I don't want you making speeches, I'm just

telling you you haven't covered them all.

DIRECT EXAMINATION (Resumed) BY MR. NIKAS: Q. Mr. Wicander, is the inboard water damage worksheet

that was completed something that would have been done and performed in the case of any water ingestion case that you had? A. Q. Typically, yes. And is it a regular practice of your yard to complete

one in the case of a water ingestion case? A. Q. Yes. And you were personally present at the time that the

readings that are contained on that sheet were conducted and written down? A. Q. Yes. And I presume that once it's shown to you, you can

establish this as an accurate copy of the sheet that was completed? A. Yes.

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Q.

And the second part of the exhibit, which I guess is

the attachment because it says "Attach a sketch with location of the canaster or water lift muffler," is that document or is that sketch something that you drew yourself? A. Q. Yes, it is. Are the readings contained on that sketch

measurements that you made personally? A. Q. A. Q. A. I was there, yes. You personally observed them being made? Yeah, I actually helped make the measurements. So you can verify the accuracy of those measurements? Yes. MR. NIKAS: Your Honor, at this time I'd like to

admit this as exception to hearsay rule as a record of regularly recorded activity and a business record. THE COURT: It's admitted. No objection.

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

We're talking about 29 and 30? I'd like to move 30 next. Well, I think we've covered the So Plaintiffs' Exhibit 29 and

questioning for 30 as well. Plaintiffs' 30 are admitted. BY MR. NIKAS: Q.

Just so the jury can see the difference between the

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two, this is the earlier exhibit and this is the revision. The only purpose in doing this was to make it more legible? A. Q. A. Q. Correct. Readable? Yes. What happens with the worksheet? What does -- who is

it transmitted to? A. Typically, it would be transmitted to Mercury Marine

and definitely is put in their file. Q. A. Q. Do you know if that was done in this case? I'm not certain. I know I told Mr. Verone about it.

So it wouldn't be your responsibility; it would have

been the dealer's responsibility? A. Q. Yes. Now, from the time that the vessel got to your

marina, which I guess could have been June 9, engines failed on the 10th, you first looked at it on the 11th for the engine problem? A. Q. Yes. Did you have any contact with either Mr. or

Mrs. Mains after that point? A. Q. A. I'm sure I did. Was it sporadic contact or did you see them often? Quite often.

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Q.

What did they do when they came to visit the boat? What did you see

What was the purpose of their visits? them doing? A.

On a weekly basis they were cleaning the boat before Coming down, they were talking to me in

it was covered.

the office about everything going on, that sort of thing. Q. Why were they washing the boat if it wasn't being

used? A. They're very, very particular people. They like

their boat clean and they had a lot of pride in that boat. Q. A. Q. Did you see them too much? You might say that. Did you ever do anything to minimize the time you

spent with them? A. A couple times I give them a pool pass to go use the

pool. Q. Okay. Now, having performed the mechanical

inspection, the pickling of the engine, and completing this worksheet, were you then retained to provide an opinion as to the cause of the water ingestion suffered by this boat? A. Q. Yes. Now, I'd like to discuss those opinions. MR. NIKAS: Before I do, Your Honor, I'd like to

offer this witness as an expert under 702.

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MR. ROTONDO:

Your Honor, I object.

I object to

the witness offering any opinions about the subject to which Mr. Nikas wants to offer him on the grounds -- well, I can argue it, but I have a grounds for that objection. THE COURT: Okay. It sounds to me like this is I'm

something we probably need to have on the record.

going to ask the jury to step next door for a minute. (Whereupon the jury left the courtroom.) MR. NIKAS: Your Honor, is there a motion in

limine or an objection I didn't receive? MR. ROTONDO: It's simply that the witnesses has

been disclosed in his report to testify that he found water ingestion that he says predates the hydrolock. right. All

So that's what he can testify about, the fact that

there was water ingestion that predates the hydrolock, not that there was any defective condition, not that there was any problem in the exhaust system. he can testify about. report. THE COURT: The report does have to state what That's the only thing

It's the last two lines of his

the opinion is that's going to be given. MR. NIKAS: Which states that, "In my opinion,

both engines have ingested a period water over a period of time prior to the hydrolocking on or about June 9, 2001. No single ingestion incident could have caused the damage

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present."

That's pretty clear. MR. ROTONDO: And I would agree he can say that.

What he can't say is what Mr. Nikas wants him to say. THE COURT: him to say? MR. ROTONDO: THE COURT: him to say? MR. ROTONDO: I'm concerned that he wants him to Water ingestion can If the witness is I don't mean to -Which is? What does Mr. Nikas want

Or you're concerned that he wants

talk about existence of a defect.

occur for several different reasons.

being proffered to offer the testimony that there was a defect in the design or manufacture of this engine, I think that's outside of the scope of his report. MR. NIKAS: of water ingestion. Your Honor, there are several causes All of them are related to the fact

that the design of the system is what it is and -- there's no issue as to the design defect. The manufacturer's If it's the

admitted it in several service bulletins.

basis for his opinion that this engine suffered -THE COURT: I doubt that that would have been But even if it were, the

admitted in a service bulletin.

question is what can this witness -- when you say there's no issue, then I want to hear that the defense is stipulating to it.

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Are you stipulating to that, Mr. Rotondo? MR. ROTONDO: THE COURT: No.

Then there is an issue.

Then you have to go to your expert report and show where the opinion that's being offered has been disclosed as an opinion that will be offered at trial. Mr. Rotondo has pointed to "it is my opinion," which is the usually the way an expert report is set up, "It is my opinion that" -- and then that's the opinion that's offered at trial. Are you planning to offer more than that? MR. NIKAS: testify to -THE COURT: Okay. So all he's going to say is No. The only thing he's going to

what is here is his opinion. MR. NIKAS: But in establishing that opinion, he

should be able to testify as to the materials that he relied on in determining that the water ingestion had occurred previous to the hydrolocking incident, and that's going to necessarily cover the service bulletins provided by the manufacturer as to water ingestion. MR. ROTONDO: That's not a report. And his

report in fact says the basis for his opinion is that he sees damage present in the engine based upon his inspection. That's what his report says.

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THE COURT:

Rule 26(a)(2)(B) discusses the It says, "The report must

written report of an expert.

contain a complete statement of all opinions the witness will express and the basis and reasons for them." So if there is a basis that's not in the report, it cannot be gone into. It says also, Clause (2), "the data and other information considered by the witness in forming them, any exhibits that will be used to summarize or support them, the witness's qualifications, including a list of all publications authored in the previous ten years, a list of all other cases in which during the previous four years the witness testified, and a statement of the compensation to be paid for the study and testimony in the case." And it says "and" not "or." So it means that

each one of these items must be included in the report. In the report, not in the deposition testimony. MR. NIKAS: In his expert report, his Rule 26

disclosure, Mr. Wicander states, "In connection with the 2003 report," which is -THE COURT: I'm not following you. As I

understand it, his expert report is the October 7, 2003 document. MR. NIKAS: Correct, Your Honor.

In his disclosure under Rule 26 he sets forth

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the additional bases for his opinion and his qualifications. THE COURT: You're talking about something other

than the October 7, 2003 report? MR. NIKAS: I'm talking about the pleading, his

disclosure statement under Rule 26 that was filed in this case. THE COURT: I'm talking about the report. I'm

literally reading the rule. what's in the rule here? MR. NIKAS: to Expert Report. THE COURT: you. That's helpful. MR. NIKAS: THE COURT: MR. NIKAS: THE COURT:

Are you operating within

I have a document titled Supplement

Supplement to Expert Report, thank

I assume it's been filed. What's the date of that document? November 13, 2003. And how come it's not attached to

the report and your exhibit? MR. NIKAS: Well, we never intended to introduce

the expert report in any event. THE COURT: Well, it would have been helpful for

me to have all of the report in one place. Where in the papers can I see what you're talking about? I don't want you to read it to me, I want

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to read it myself.

Why don't you hand it up to me, if

that would be acceptable to you. You're saying this is a supplement to his report, correct? So it's part of his report. I'm reading the title, Your Honor. It says

MR. NIKAS:

To be honest, I had not seen this before.

"Supplemental to Expert Report," I assume that's "Supplement to Expert Report." THE COURT: MR. NIKAS: THE COURT: Mr. Rotondo? MR. ROTONDO: compare. THE COURT: Let me ask, Mr. Rotondo, when you I believe I do. If I can just Can I see it, please. I'll try to remove it. You have what he's talking about,

look at that document, does that resolve the objection that you have? MR. ROTONDO: Your Honor. THE COURT: Why not? Because it doesn't indicate the No, it doesn't change anything,

MR. ROTONDO:

other opinions that are now being proffered or the bases. THE COURT: at that, Mr. Nikas? MR. NIKAS: Okay. Have you had a chance to look

You said you had not seen it. I had not seen it.

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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 sticker? flags.

THE COURT:

Take a second and look at it and

tell me whether you think it states the other opinions and the bases for those opinions. Can I ask the courtroom deputy to give him some

MR. NIKAS: THE COURT:

I have some. Where you think it does, if you

think it does, put a little flag next to that. Why don't you show it to Mr. Rotondo so he knows what I'm looking at. MR. NIKAS: does not track -THE COURT: This is it where you have this Unfortunately, Your Honor the report

MR. NIKAS:

What I'm referring the Court to is

the certification from Mercury Marine and certification from Sea Ray which he discloses as the basis for his qualifications. That experience, he's allowed to testify

as to what material he was provided for and provided with as part of that certification process. THE COURT: This is under the section on

qualifications as an expert. MR. NIKAS: THE COURT: Correct, Your Honor. How does that address at all what

opinions he's giving or --

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MR. NIKAS:

The only opinion this witness will

testify to is that the water ingestion occurred over a historic period of time, as is stated in his report, could not have been caused by the hydrolocking incident, and that the replacement of both engines is necessary. THE COURT: MR. NIKAS: Okay. Fine.

But, Your Honor, during the voir

dire process as part of his qualifications, will the Court prevent me, since he has not been proffered as an expert witness yet, to go into, as the voir dire process, his background, his experience, the materials he was exposed to as part of his Mercury training and Sea Ray training? THE COURT: I gave you latitude. I allowed you to do that, I thought. I let you do it over objection even

though I thought we were veering into him testifying as a fact witness or at least along the line. MR. NIKAS: Well, he is partially a fact

THE COURT:

He wasn't disclosed as one.

He's

only disclosed as an expert witness. we had in the motion in limine.

That was a big issue

You probably didn't see

the ruling, but that was one of the points I made in my ruling in the motion in limine was that he was not disclosed as a fact witness, only as an expert witness. But I allowed you some latitude there because I thought it

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was necessary or at least fair in terms of providing the basis for what he did leading up to the expert work he did. But that doesn't allow you to go forward and convert

him into a fact witness. MR. NIKAS: What I'm saying, Your Honor, is

since he has not been offered as an expert and I haven't completed the voir dire process of qualifying him as an expert, because that qualification is relevant -THE COURT: yesterday. MR. NIKAS: No, I withdrew because we weren't Mr. Rotondo objected and I You offered him as an expert

getting to the opinion point. withdrew. THE COURT:

To his being offered as an expert? I didn't object. I didn't

MR. ROTONDO:

stipulate until I heard the question he was asked. MR. NIKAS: yet then. And I said we won't go into opinion

I have not formally submitted him. THE COURT: I put down that he had been offered

and Mr. Rotondo simply was reserving the right to cross-examine him. I didn't understand that, sorry. I never heard a ruling, so I stopped

MR. NIKAS:

the voir dire process at that time. THE COURT: him. I said you can go on and question I guess you want --

That was my ruling.

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Mr. Rotondo, you're assuming I haven't ruled yet; is that correct? MR. ROTONDO: No, I understand he's been My only issue with respect his

designated as an expert.

offering opinions is what those opinions are that he's going to offer and whether they've been disclosed. my issue. THE COURT: That's what I thought you were That's

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

Yes.

Okay. Notwithstanding -So if what you're going to try to do

is under the guise of voir dire get in things that otherwise would not be admissible because they were not disclosed as his expert opinion, you're going to get cut off from doing that, just so we're clear. MR. NIKAS: I'm not trying to be argumentative,

I just want to be sure I don't incur the Court's ire any further -THE COURT: You haven't incurred any ire. I'm

telling you where the lines are. MR. NIKAS: If no opinion is offered -- in other

words, I don't ask him any opinion questions outside the scope of the opinion offered in his report, during voir

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dire I can discuss his education, his background, the components of that education and background, anything that qualifies him as an expert. THE COURT: Yes. And I thought you did all that

yesterday, to my satisfaction at least. MR. NIKAS: But I haven't completed it to mine.

Part of the voir dire process is building him up as an expert in front of the jury. Since we started with the

fact issues, I hadn't gotten to that point. THE COURT: issues. You didn't start with the fact

You started with his qualifications and then even

went back and went over his education. My concern is that -- I mean, I understand you sort of find yourself in a box. concern. But that's not my

I have to make sure that you don't use voir dire

as a back door to do something you're not allowed to do. And you're not going to be allowed to do that. fair. It's not

I mean, he was disclosed as an expert and he was And you can't get certain

disclosed for certain opinions.

evidence in that you otherwise would have liked to have gotten in as an opinion, but it wasn't disclosed as an opinion, as part of his background. MR. NIKAS: I'm not talking about an opinion.

I'm talking about documents that he's reviewed, materials that he's been provided, written documentation that make

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up the certification process by MerCruiser and Sea Ray since he holds both certifications. those issues yet. THE COURT: But he has not disclosed in the We didn't go into

report the basis for his opinions. MR. NIKAS: qualifications. But not the basis for his

And so if I just limit my questioning to

his qualifications -THE COURT: It seems to me you're being more It sounds to me that

than a little cute here, Mr. Nikas.

what you're saying is there are things that happen to be the basis for his opinion and, by the way, they also happen to be the basis for his qualifications. MR. NIKAS: THE COURT: MR. NIKAS: But that's true. Is that what you're saying? That's true. It's not being cute,

it just happens to be a fact.

I'm not in a box,

Your Honor, I'm in a box below the ground and we call that something else. So to the extent that what I'm asking for

is permissible and certainly justifiable under Rule 11, this isn't even being somewhat aggressive in terms of presenting the evidence. If these materials, these documentary materials were reviewed during the course of his education and we can say have you reviewed, you know, X's publications

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regarding this, X's publications regarding that, X's publications regarding whatever, that should be permissible under the scope of voir dire. THE COURT: It depends how much detail you go

into in terms of what's in the publications. MR. NIKAS: them. I'm not going to ask him to read

I'm not even going to ask him to summarize what I can ask them has he seen them and reviewed

they say. them.

THE COURT:

It depends -- I understand what

you're saying you're not going to do, but there are other things that skillful counsel do to sort of -- you don't ask him to read it, you don't ask him to summarize it, but in your question you basically testify. a few times, okay? You've done that

And that's okay with me as long as But we're in a very -- we are at a I just

there's no objection.

point here where it's a highly-contested point.

want to make sure that you understand the grounds rules before we bring the jury in. MR. NIKAS: Your Honor, I think at every point I

have tried to be extremely cautious and to the point where I've gone before the Court prior to beginning any line of questioning or prior to the use of anything that might even be considered to be outside the scope of the Court's permissible testimony. But --

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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 patiently.

THE COURT:

Okay.

Mr. Rotondo has been waiting

Let me so what he has to say and then I want I think I understand where

to get the jury back in.

people are coming from and I know enough to make rulings. Mr. Rotondo? MR. ROTONDO: My point is if it's not an opinion

that he has been disclosed to testify about, then all these documents that form the basis of his background are irrelevant, particularly given that those documents weren't disclosed in a disclosure either. all irrelevant. I think it's

It's not relevant to his qualifications

because we're not contesting his qualifications as a mechanic. It's all irrelevant because it really goes to

opinion evidence. THE COURT: It goes to his qualifications to

give an opinion he has not been disclosed to give. MR. NIKAS: THE COURT: Actually, Your Honor, even though -So what you're going to have to do,

so I have a basis for knowing what you're doing, is you're going to have to link up -- if you're going to go into qualifications -- I mean, I would prefer, actually -well, I guess I know what opinion he's going to give. just going to have this page open here. I'm

And if there's an

objection, then you'll have to lay a foundation as to why a qualification that you're going into relates to the

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opinion he's going to be given, okay? MR. NIKAS: No, no, Your Honor. I'm not going

to offer any -- I want to make it very clear, that I won't even approach that territory. separate the two. In fact, I'm going to

Any questions that we get at this

juncture will be solely related to his qualifications as an expert. And I will ensure that they don't even come

close to his opinion, you know, so there's no question about the effect on the jury of hearing that evidence in close connection with the opinion that's offered. THE COURT: you want to proceed. Well, I'll let you proceed the way All I'm saying is if it's not

apparent to me how a qualification that you're going into is somehow relevant to an opinion he's giving and there's an objection, I'm going to sustain the objection, particularly if it's a qualification that relates to opinions that it seems like you'd like him to give and he hasn't been disclosed to give and hasn't provided the basis for giving them. MR. NIKAS: What I don't understand, is his

opinion, we can all see, since it's only nine words long, is ingested water over a period of time prior to the hydrolocking, then voir dire as to his qualifications regarding water ingestion should be acceptable. THE COURT: It is.

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MR. NIKAS:

Because the jury has to make a

determination whether that conclusion is valid and whether he possesses the qualifications to do it. THE COURT: It is. It is. Part of my problem And you may

is that I think you covered that yesterday.

say you haven't covered it to your satisfaction -MR. NIKAS: THE COURT: We didn't cover that at all. Don't cut me off. I'm telling you

what my problem is so you can be aware of it. It seems to me you covered his qualifications yesterday and now that you have a problem in terms of trying to get in opinions that you can't get in, you're going back to cover things under the guise of his qualifications. You told me that when I looked at this

supplemental disclosure, I would see things that show his other opinions he was going to give. All I saw when you

handed up that sheet to me was an arrow that went to qualifications. want to get. That's your only path to get where you

That's not what you told me before when we So I'm naturally skeptical.

first started the discussion.

You're going to have to really show me that what you're doing is relevant to his qualifications to give the opinion that he's been disclosed to give and the bases for those opinions that have been disclosed in the report. We'll bring the jury in.

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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 gentlemen. ingestion.

MR. NIKAS: one question? for a request.

Your Honor, actually, can I ask you

This is out of respect for the Court, not

The opinion he's been offered for is water He holds the factory certification which we Am I

pointed to as a Mercury-certified technician.

allowed to solicit testimony regarding any materials he's been provided by Mercury regarding water ingestion? THE COURT: I'll rule as the questions come out.

I'm not going to give you a blanket authorization. MR. NIKAS: Your Honor. THE COURT: I understand your concern, but I I'm just trying to be cautious,

can't give you a blanket authorization. (Whereupon, the jury entered the courtroom.) THE COURT: Please be seated, ladies and

We'll continue on and go until -- we'll go to 10:35, how's that? BY MR. NIKAS: Q. Mr. Wicander, you were retained to provide an expert

opinion in this case; is that correct? A. Yes. MR. NIKAS: Your Honor, may I show the witness

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his expert witness report -THE COURT: MR. NIKAS: Yes. -- so he can offer that opinion

within the strict guidelines imposed. THE COURT: BY MR. NIKAS: Q. Mr. Wicander, can you please tell us what that Yes.

opinion is, what your conclusion reached was? A. Q. Want me to just read it? Sure, that would probably be safest. THE COURT: Acceptable to counsel? If we're talking about page 3.

MR. ROTONDO: THE COURT:

"It is my opinion." I don't have any objection.

MR. ROTONDO: A.

It is my opinion that both engines have bee -THE COURT: Can you do it slowly, sir, so the

jury can follow you? BY MR. NIKAS: Q. In fact, slowly, loudly, and make sure everybody

hears it because this is going to be -A. Sure. It is my opinion that both engines have ingested water over a period of time prior to the hydrolocking on or about June 9. THE COURT: 2001.

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A.

2001, sorry. No single ingestion incident could have caused the

damage present.

Both engines need to be replaced. May I, Your Honor? You may.

MR. NIKAS: THE COURT: BY MR. NIKAS: Q.

Now, before we get into the bases for your opinion or

for the reasons that you've come to that conclusion or the evidence supporting that conclusion, I'd like to go back, and we started this yesterday, to talk about your qualifications to render that opinion. And yesterday you

mentioned that you're a Mercury-certified technician; is that correct? A. Q. A. Q. I was at the time, yes. And you were first certified when? I believe it was 1989. What topics were included in the training you

received prior to and in order