Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 1 of 142

js011808 1

1 2 3 4 5 6 7

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CEBE FARMS, IND., and JOSEPH CEBE v. UNITED STATES : : : : : : : NO. 05-0965C -

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

January 18, 2008 -

Oral deposition of JACK SHERE, DVM, taken pursuant to notice, was held at the offices of DEPARTMENT OF JUSTICE, Civil Division, Classification Unit, 1100 L Street NW, Washington, DC 20530, commencing at 11:25 a.m. on the above date before Beth A. Barkocy, Certified Court Reporter and Notary Public. - - MAGNA LEGAL SERVICES Two Penn Center 1500 John F. Kennedy Boulevard Suite 910 Philadelphia, PA 19102 (866)624-6221 2

1 2 3

APPEARANCES: LAW OFFICES OF STUART A. WILKINS, PC BY: STUART A. WILKINS, ESQUIRE Page 1

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 2 of 142

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

js011808 6000 Sagemore Drive Suite 6301 Marlton, New Jersey 08053 (856) 985-2525 Representing the Plaintiff

DEPARTMENT OF JUSTICE BY: Timothy P. McIlmail, ESQUIRE Civil Division Classification Unit 1100 L Street NW Washington, DC 20530 (202) 514-2217 Representing the Defendant

ALSO PRESENT: Ned Childs, DOJ Rick Herndon, DOJ

3

1 2 3 4 Testimony of: 5 6 7 8

-

-

-

I N D E X -

JACK SHERE, DVM

By Mr. Wilkins.................... 5

-

-

Page 2

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 3 of 142

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Shere-4 Shere-3 Shere-2 NO. Shere-1

js011808 E X H I B I T S -

DESCRIPTION Document Bates Stamped D164-165 Document Bates Stamped D336 through D342 Appraisal dated 3/30/03 Appraisal and Indemnity Claim

PAGE

48

60

75

82

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14

-

-

-

DEPOSITION SUPPORT INDEX -

Direction to Witness Not to Answer Page None Line Page Line

Request for Production of Documents Page None Page 3 Line Page Line

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 4 of 142

js011808 15 16 17 18 19 20 21 22 23 24 Questions Marked Page None JACK SHERE, DVM 5 Line Page Line Stipulations Page 5 Line 1 Page Line

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

(It is hereby stipulated and agreed by and between counsel for the respective parties that the sealing, certification, and filing are waived and that all objections, except as to the form of the question, be reserved until the time of trial.) - - JACK SHERE, DVM, having been first duly sworn, was examined and testified as follows: - - EXAMINATION - - BY MR. WILKINS: Q. Mr. Shere, my name is Stuart

Wilkins; I am an attorney who is representing the plaintiff in this matter, Cebe Farms and Joseph Cebe. Page 4 They

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 5 of 142

20 21 22 23 24

js011808 have instituted a lawsuit back in September 2005 against the defendant United States. of this lawsuit? A. Yes. JACK SHERE, DVM 6 Have you been made aware

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

Q.

The purpose of today's

proceeding is to ask you some questions concerning your knowledge regarding facts relating to this lawsuit. The procedure

is one of question and answer; I will be asking you questions and, hopefully, you will be giving me verbal answers to my questions. instruction? A. Q. Yes. Have you ever had your Do you understand that

deposition taken before? A. Q. No. Welcome to the world of

depositions then. While this is somewhat of an informal process in that there isn't a jury here and there is no judge present, your testimony, nonetheless, is under oath. A. Q. Do you understand that? Yes. Even though it's somewhat of

an informal process to that extent, your testimony is going to be taken down by JACK SHERE, DVM Page 5 7

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 6 of 142

js011808

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

the court reporter here, Beth, who will later be putting together a booklet with the questions and answers which you will be given an opportunity to review. you understand that instruction? A. Q. Yes. All of your answers need to Do

be verbalized because Beth will not be able to take down any type of motions or nods or grunts or anything other than verbal answers that she can hear and understand, so to that extent, I'm going to ask you to do the following: One is

please don't speak when I'm speaking, and I will try to do the same with you. This

way, we will try to make Beth's life a lot easier in that she's not going to be able to accurately transcribe what we're both saying if we are speaking at the same time. In addition, I ask that you keep your voice up so she can hear your testimony and your answers, and I'm going to also ask that if for any reason you JACK SHERE, DVM 8

1 2 3 4

don't understand my question, to please tell me and I will try to rephrase it or explain it to you so that you have a full understanding. Page 6

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 7 of 142

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

js011808 Do you understand that? Yes. Lastly, I'm going to ask that

you listen very closely to my questions and just answer my questions. I arrived

here a little bit late today because of some travel difficulties, so we're a little bit under the gun, I know you have a plane to catch, and the deposition will go much quicker if you just listen to my question and give a verbal response to that, meaning if it is a question which requires a yes or no answer and you're comfortable with that, you don't have to explain any further. If I need further

explanation, I will ask you. At the same time, time permitting, if your counsel thinks there's any need for clarification in any testimony that you've given, he will be JACK SHERE, DVM 9

1 2 3 4 5 6 7 8 9 10

given the opportunity either now or at a later date or at some point to make sure it's a full and complete and accurate response. Do you understand that? A. Q. Yes. During the course of the

deposition, I may remember another instruction as we go along, and if I do, I'll just give it to you then, but that Page 7

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 8 of 142

js011808 11 12 13 14 15 16 17 18 19 20 21 22 23 24 employed? A. Services. Q. position? A. Q. A. Since November of 1990. Do you have a specific title? My current title is Eastern How long have you held this USDA-APHIS Veterinary should cover it. By whom are you currently

Regional Director for Veterinary Services. Q. title? JACK SHERE, DVM 10 How long have you held this

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 2005.

A.

I was promoted in May of

Q. A. Q. May of 2005? A.

Congratulations. Thanks. What was your title before

Associate Regional Director

for the Western Region of Veterinary Services. Q. address? A. 275 Lancashire Run, That's in What is your current home

L-a-n-c-a-s-h-i-r-e, then Run. Smithfield, North Carolina. 27577. Page 8

The zip is

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 9 of 142

16 17 18 19 20 21 22 23 24

Q.

js011808 Back in the late 2002 to

early 2003 time frame, were you involved in an incident in southern California dealing with Exotic Newcastle Disease, otherwise sometimes referred to as END, E-N-D? A. Q. that time? JACK SHERE, DVM 11 Yes. What was your involvement at

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

A.

I was initially sent out

there as the -- to coordinate the surveillance of the commercial flocks. later became the incident commander and area commander as the incident group on the federal side. Q. What were your duties and I

responsibilities as an incident commander? A. When an incident was

restricted to California, I was responsible for the federal activities regarded to END, all federal activities from surveillance to depopulation, oversight of all the personnel on site and the work that was being carried out in regards to eradication of END. Q. Based upon some of the

testimony of your predecessors, as part of that particular oversight, it appears that there were discussions with certain Page 9

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 10 of 142

js011808 22 23 24 farm owners and perhaps others concerning compensation to them. Were you involved

at all with respect to that issue? JACK SHERE, DVM 12

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

A. Q.

Yes. What was your involvement

with respect to compensating the farm owners? A. It would depend on the issue.

Some of the farms, I dealt directly with the farm owners when we were talking about compensation. Some of them in

later stages, when we got to an area command situation the incident commanders would speak directly with the farm owners regarding compensation and forward me the conversations and what was talked about at those meetings, so it's sort of a report session. Q. You said that was done by the

incident commander? A. Q. Yeah. I thought you had indicated

that you were both the -A. I was both, but what I also

said was initially I was the incident commander, and when the incident grew to five states, I became the area commander. JACK SHERE, DVM 13

Page 10

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 11 of 142

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

Q.

js011808 Is the area commander senior

A. Q. A.

Yes. -- the incident commander? Yes, sir. They oversee the

incident commanders in their job. Q. As the area commander, what

was your general authority to enter into any type of agreement with a farm owner concerning compensation? A. We were allowed to offer

indemnity amounts in regard to compensation for the birds and the eggs. Q. When you say "we were

allowed," do you mean you were allowed? A. I worked in a joint command

with Annette Whiteford (ph) on the state side. We were working -- a lot of the

authority we utilized was the state's authority. commander. Q. Annette Whiteford worked on She was also the area

the state level, you worked on the federal level, and essentially, you JACK SHERE, DVM 14

1 2 3 4 5 6

worked together and had authority to offer indemnity amounts in regard to compensation for birds and eggs; is that correct? A. Yes. MR. McILMAIL: Objection, Page 11

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 12 of 142

js011808 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 leading. BY MR. WILKINS: Q. A. You can answer. That is what I said, that we

offered indemnity amounts for birds and eggs. Q. During the course of the

deposition, your counsel may, from a procedural standpoint, interpose certain objections. With his -- he'll tell you

otherwise if he wants to, but he is protecting the record on certain procedural safeguards. It doesn't mean

you shouldn't answer them unless he instructs you not to answer them. He may

interpose an objection, but it doesn't mean don't answer, it means he is protecting the record. JACK SHERE, DVM 15

1 2 3 4 5 6 7 8 9 10 11

A. Q. every one.

Okay. Not to say you have to answer If I get into an area he

feels is inappropriate, I'm sure he will tell you, as he has done in the past. Did you have any monetary amounts that you were prohibited from offering? Let me rephrase it. Let me

take a step back. With respect to discussing compensation with farm owners, what did Page 12

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 13 of 142

12 13 14 15 16 17 18 19 20 21 22 23 24

js011808 you understand the compensation was supposed to be for the chickens -- for the birds and the eggs? A. amount? Q. A. What guidelines did you use? We tried to use the expertise We often used the You mean was there a set

of our personnel.

advice of extension -- poultry extension veterinarians. We used our economist

and, at times, we would go to outside sources for expert advice. We had a

poultry panel of experts that we JACK SHERE, DVM 16

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

consulted. Q. Who picked that poultry panel

of experts which were consulted? A. the picking. I'm not sure exactly who did I know there were

university folks and I think perhaps Dr. DeHaven and maybe Joe Annelli (ph) put that panel together. I was just told

of who the panel members were. Q. These panel of experts or

this group of different personnel who may have been involved in trying to determine the compensation, what did you understand they were trying to determine; in other words, was there some kind of formula that was used? When I say "formula" --

strike that whole thing. Page 13

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 14 of 142

js011808 18 19 20 21 22 23 24 What did you understand these personnel were trying to arrive at? A. What we tried to arrive at

with indemnity was the fair market value for the purchase of the birds and the eggs. Q. Did you understand that these JACK SHERE, DVM 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

farm owners were entitled to the fair market value of their chickens and birds as part of this entire process? MR. McILMAIL: leading. Go ahead and answer. THE WITNESS: BY MR. WILKINS: Q. based upon? A. It's based on our -- it's What was that understanding Yes. Objection,

just based on how we do the indemnity process and our memorandums and the CFR, what's written in there. Q. do you mean? A. Regulations. Q. As you understood it, the The Code of Federal When you say "the CFR," what

Code of Federal Regulations required you to compensate these farmers for the destruction of their birds and eggs at a Page 14

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 15 of 142

23 24

js011808 fair market value price? MR. McILMAIL: Objection, 18

JACK SHERE, DVM

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

leading. THE WITNESS: BY MR. WILKINS: Q. And that the method that you Yes.

would use to determine valuation included internal personnel you may use, poultry extension veterinarians, economists, and/or an outside source such as a poultry expert; is that correct? MR. McILMAIL: leading. THE WITNESS: We also used Objection,

geneticists and we used a lot of folks from the universities. I

consulted University of Wisconsin veterinarians and poultry experts that I had gone to and had trained me. I called them from time to time

during the outbreak. BY MR. WILKINS: Q. Did you use all of these

different sources with respect to determining fair market value at every -for every determination? JACK SHERE, DVM 19

1 2

A. Q.

No. How would you determine which Page 15

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 16 of 142

js011808 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 one of these sources would be utilized? A. It really depended on the We

complexity of the situation.

quarantined hundreds of premises and dealt with everything from backyard chickens to, in Joe Cebe's case, the genetic great-grandparent stock that he attested he had on his premises. It

depended on the complexity and whether we could arrive at a fair price and that could be agreed upon. Q. How did you know whether you

could arrive at a fair price? A. A lot of times you worked up

your price through those different avenues that I've told you, you presented that to the owner, and the owner would either accept or reject that. Q. In those instances where the

owner rejected, what would happen? A. It depended. We'd either go

back and look at our figures again, JACK SHERE, DVM 20

1 2 3 4 5 6 7

rework them, sometimes we increased the amount, sometimes we decreased the amount, and some of those cases just remained in dispute. Q. What do you mean sometimes

they just remained in dispute? A. There was a pigeon case out Page 16

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 17 of 142

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

js011808 there where there were a lot of factors. Couldn't determine what owner, who was the rightful owner, couldn't determine the correct amount. I don't believe that

that person was ever compensated. Q. Anyone other than the pigeon

case in which there was an inability to arrive at a fair market value price? A. You mean where we couldn't

agree on the amount of indemnity before we did the depopulation? Q. A. Q. pigeons? A. Q. That I can remember, yes. What about Joe Cebe, was JACK SHERE, DVM 21 Correct. No. That was the only one, the

1 2 3 4 5 6 7 8 9 10 11 12 13

there an agreement in place? A. An agreement? There was an

indemnity amount that we proposed. Q. What was, to the best of your

recollection, the indemnity amount which was proposed? A. It was based on the

classification of the birds, the great-grandparents, the grandparents, and the eggs. Either they were identified as

great-grandparent or unidentified. Q. It's your understanding there

were two different categories for the Page 17

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 18 of 142

js011808 14 15 16 17 18 19 20 21 22 23 24 leading. THE WITNESS: MR. McILMAIL: Yes. Give me a eggs -- there were two different compensation methodologies proposed to Cebe Farms for the eggs depending on their identification? A. Yes. MR. McILMAIL: Objection,

moment, Jack, before you answer. THE WITNESS: Okay. I 22

JACK SHERE, DVM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

apologize. BY MR. WILKINS: Q. Is that documented in any

source, in any written document that you're aware of? A. I sent a letter to Joe Cebe

through Thanasi and documented that. Q. letter? A. Q. destruction? A. It was after the destruction, I don't know the exact date. Was it before or after the When did you send that

but we had also had telephone conversations with Thanasi and Joe Cebe before the destruction occurred. Q. What was documented before

the destruction occurred with respect to Page 18

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 19 of 142

19 20 21 22 23 24

js011808 compensation for the eggs? A. What they were told by me and

what I requested from them is two different things. I told them that any

birds that were clearly identified as great-grandparent birds with tags would JACK SHERE, DVM 23

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

be paid at the great-grandparent level; anything else would be listed as grandparent or otherwise. Any eggs

identified with marks as breeder eggs would be paid as great-grandparent eggs and anything unmarked would be paid at the rate of 85 cents an egg. Q. With respect to the Cebe

Farms, would you agree that was one of the more extraordinary cases in trying to arrive at a fair market value in the 2002, 2003 outbreak of END? MR. McILMAIL: leading. THE WITNESS: BY MR. WILKINS: Q. Would you agree that was Yes. Objection,

probably the most difficult out of the cases that -- if not the most difficult, one of the most difficult at arriving at an indemnification agreement? MR. McILMAIL: leading. THE WITNESS: It was Page 19 Objection,

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 20 of 142

js011808 JACK SHERE, DVM 24

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

difficult, yes.

I don't know if I'd It

say it was the most difficult. depends on the factors you're looking at. BY MR. WILKINS: Q.

Certainly one of the more

complex cases, correct? A. It was complex. MR. McILMAIL: leading. THE WITNESS: BY MR. WILKINS: Q. Whereas some of the other Yes. Objection,

farms surrounding the Cebe Farms were traditional chickens, for lack of a better term, Joe Cebe's farms were a little bit more specialized, his chickens? MR. McILMAIL: Objection,

leading, lack of foundation. THE WITNESS: According to

Joe Cebe, his farm was specialized, but as far as what we could determine, he was raising broilers JACK SHERE, DVM 25

1 2 3

to be put into the live bird market chain. We were working off of his

claims; we couldn't substantiate Page 20

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 21 of 142

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

js011808 what he was telling us because he wouldn't show us his records. BY MR. WILKINS: Q. You couldn't substantiate any

of his claims? A. Not by his claims, no. We

asked for his records so we could determine the value of his birds and his breeding program, and he refused to give those records to our economists. Q. Were there any other ways to

check the accuracy of his claims other than his own records? A. We took his claims and went

to other specialists and asked them about those claims. Q. A. And? That's how we arrived at the

indemnity value. Q. Was it verified that Joe

Cebe's claims to you were accurate? JACK SHERE, DVM 26

1 2 3 4 5 6 7 8 9

A.

I don't really understand

which claims you're talking about, the value of the birds that we -- or the breeding of the birds? Q. A. Yes, the breeding. There was no way to determine

the breeding of the birds. Q. That they were specialized,

that it wasn't just a simple broiler hen? Page 21

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 22 of 142

js011808 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Short of checking the

genetics, there's no way to validate that. Q. We didn't do that. What did you do when you went

to third-party sources to investigate his claims? A. We gave them his scenario of

what he said the birds were and asked them what they would determine the value would be of such an operation on a per bird basis per great-grandparent birds and grandparent birds. Q. What was the range you had

been discussing with Joe Cebe and Cebe Farms for indemnification of his birds JACK SHERE, DVM 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14

and eggs prior to depopulation? A. I personally never discussed I discussed final

a range with him.

values that were determined by the economist. Q. A. What were those final values? The ones that were posted in

the letter that I sent him. Q. Somewhere in between

$1.8 million, $2 million? MR. McILMAIL: leading. THE WITNESS: No, what I sent Objection,

him in the letter was the final Page 22

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 23 of 142

15 16 17 18 19 20 21 22 23 24

js011808 synopsis of what we got off our inventory when we did the depop, and that amount was 1.7, almost 1.8 million. BY MR. WILKINS: Q. We're talking a lot of money

here, essentially? MR. McILMAIL: leading, argumentative. THE WITNESS: It's a lot of 28 Objection,

JACK SHERE, DVM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

money depending on who you are. BY MR. WILKINS: Q. strike that. When did the government first start having communications with Joe Cebe and Cebe Farms concerning the issue of depopulating and indemnifying him? A. Q. A. I don't remember. Approximately? I can't tell you for sure Yet you're saying that the --

because I was brought in late in the case. Q. depopulation? A. No, I think the discussions Was it a couple days before

went on several weeks before the depopulation. Q. You're aware of at least

several weeks before depopulation the Page 23

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 24 of 142

js011808 21 22 23 24 government started having discussions with Joe Cebe and he had made his claims right up front, correct? MR. McILMAIL: Objection, 29

JACK SHERE, DVM

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

leading, compound. THE WITNESS: What we could

do to determine when the discussions occurred was look and see when we got the positive test for Joe Cebe's farms because those discussions would have started shortly after that, so there's no sense in me guessing when those occurred when that could be determined. BY MR. WILKINS: Q. You indicated the various

methods in which indemnity values were determined by USDA. Were you involved in

the decision-making process as to which different methods would be utilized? A. I depended on the economists

and the experts to bring me their indemnity values and to explain to me how they determined them. Q. Were you involved with the

decision with respect to Cebe Farms? A. Q. Yes. What was that decision? JACK SHERE, DVM Page 24 30

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 25 of 142

js011808 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 mean. Q. strike that. What was the first valuation that was done with respect to the indemnity issue for depopulation of Cebe Farms? A. This was brought to me Was a decision made to -A. I don't understand what you

through conversation with my incident commander, and my understanding was -and I wasn't there so I don't know this for sure -- that they discussed a value of 2.28 million. Q. A. What was that based on? I think that was initially

based -- I'm talking based on what I've heard. That was based on Ann

Seitzinger's workup, and she's an economist, of what the values would be based on the figures given to us by Joe Cebe for what he thought was there in birds and eggs. Q. Did you have any reason to JACK SHERE, DVM 31

1 2 3 4 5

believe that Ann Seitzinger's calculations were inaccurate? A. Q. At the time, no. Why didn't you just stick

with Ann Seitzinger's valuation? Page 25

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 26 of 142

js011808 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Q. A. They refused the valuation. They being? Joe Cebe and Thanasi

Preovolos told us that wasn't enough, they weren't interested in that. Q. Is it required, as far as you

understood, to come to some type of agreement with the owner-producer before destroying the birds? A. It depends on the disease and

the seriousness of the disease. Q. A. What does it depend on? If it's a rapidly spreading

infectious process and we can't reach agreement with the birds and it's endangering -- with the owner and the birds being there or any animal that's diseased is endangering other animals around them, then those birds can be JACK SHERE, DVM 32

1 2 3 4 5 6 7 8 9 10

destroyed. Q. it? A. Q. A. I would assume so. You're not sure? I've never come across that. Without the owner approving

In my 18 years of working with VS, we've never taken any -- we never depopulated any farm without an agreement being in place first. Page 26

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 27 of 142

11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

js011808 There was a significant

difference in the amount of indemnification that you earlier indicated between the type of egg that was being destroyed at Cebe Farms, correct? MR. McILMAIL: leading. THE WITNESS: I don't Objection,

understand your question. BY MR. WILKINS: Q. I think you indicated that

there were two categories of eggs? A. That's correct. JACK SHERE, DVM 33

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

Q. A.

One was what? One was a great-grandparent

egg that was identified as a great-grandparent egg, and the breeder usually puts marks on those eggs. They

band the bird, the bird lays an egg, she's put in with the male, and those two codes are put on the egg and you know the exact genetics of what that egg is when it hatches out. Q. A. Q. A. And the other type? Unmarked. Unmarked meaning? Undetermined breeding,

undetermined value. Q. There was a requirement to Page 27

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 28 of 142

js011808 17 18 19 20 21 22 23 24 leading. THE WITNESS: That's the make a determination as to whether or not a bird was a great-grandparent egg or a grandparent egg, in which it was valued higher than if it was unmarked? MR. McILMAIL: Objection,

agreement we had with Joe and JACK SHERE, DVM 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Thanasi when we went in for the depopulation. BY MR. WILKINS: Q. What was the value if it was

a great-grandparent or a grandparent egg? A. I think we listed the

great-grandparent eggs and grandparent eggs at $19.06 each. Q. be 85 cents? A. Q. Right. Was it just the markings that If it was unmarked, it would

were important or was it the actual type of egg that was important? MR. McILMAIL: leading, compound. THE WITNESS: In a breeding Objection,

facility, it's important that you know the breeding behind the eggs that you're keeping back for genetic stock. The only way to determine Page 28

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 29 of 142

22 23 24

js011808 that is to put the birds into breeding facility cages where they're put in with a known male, so JACK SHERE, DVM 35

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

that when the female gets into the egg -- into the laying egg on their nest -- and it's a catch nest -- she goes in there, she lays the egg, the nest closes. She lays the egg, and

until the owner comes in and removes the egg and marks the egg with the hen's badge number, she is not released, so you know the exact breeding of what's in that egg. BY MR. WILKINS: Q. Valuation of the eggs was

dependent on knowing what -A. We were paying for

great-grandparent eggs. MR. McILMAIL: end of the question. THE WITNESS: BY MR. WILKINS: Q. You were paying $19.06 for I'm sorry. Wait for the

great-grandparent eggs? MR. McILMAIL: leading. THE WITNESS: Yes. 36 Objection,

JACK SHERE, DVM

1

BY MR. WILKINS: Page 29

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 30 of 142

js011808 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 correct. JACK SHERE, DVM 37 leading. THE WITNESS: Yeah, that's eggs? A. There was really no Q. What about for grandparent

determination between those two. Q. It was -- 19.06 was the mixed

number for either the great-grandparent egg or grandparent egg, correct? MR. McILMAIL: leading, vague. THE WITNESS: 19.06 was what Objection,

we paid for an egg that was marked, and we used that marking as a determination of either a great-grandparent egg or a grandparent egg. BY MR. WILKINS: Q. The ultimate number of eggs

that was destroyed was over a hundred thousand; was it not? MR. McILMAIL: Objection,

1 2 3 4 5 6

BY MR. WILKINS: Q. When we're talking about $19

versus 85 cents in categorizing eggs, we could be talking millions of dollars in the difference for compensation for those eggs, correct? Page 30

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 31 of 142

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 leading.

js011808 MR. McILMAIL: Objection, leading, lack of foundation, vague. THE WITNESS: That's true,

but whenever we determine a price, it's based -- what we pay is based on what we get as a final inventory when we do the depopulation. BY MR. WILKINS: Q. Would you agree with me that

it would have been important to put in any written documentation this distinction in pricing before you went ahead with depopulation? MR. McILMAIL: Objection,

THE WITNESS:

I think it was

clear to Thanasi and Joe Cebe what we would pay when we went in. JACK SHERE, DVM We 38

1 2 3 4 5 6 7 8 9 10 11 12

also asked them to be present as we did the depopulation to determine and agree upon the inventory. BY MR. WILKINS: Q. My question was do you think

it was important to put into writing the specific amount that you claim Cebe Farms agreed to with respect to potentially millions of dollars of valuation of eggs. MR. McILMAIL: leading, argumentative. THE WITNESS: I think in a Page 31 Objection,

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 32 of 142

js011808 13 14 15 16 17 18 19 20 21 22 23 24 depopulation procedure when you're dealing with diseased animals, you don't always have the luxury of putting everything in writing. BY MR. WILKINS: Q. You put something about eggs

being compensated at $19.06 per egg in a document which you asked Cebe to sign before depopulation; is that correct? MR. McILMAIL: leading -THE WITNESS: I did not -39 Objection,

JACK SHERE, DVM

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

MR. McILMAIL:

Wait, wait,

Objection, leading, and lack

of foundation. BY MR. WILKINS: Q. When I say "you," the Somebody prepared

government did.

something, presented it to Cebe Farms with a dollar figure of $19.06 per egg as compensation as indemnity for the depopulation of eggs; is that correct? MR. McILMAIL: Objection,

leading, lack of foundation. THE WITNESS: that's correct. BY MR. WILKINS: Q. It's your testimony, then, Yes, I think

that it was somehow too inconvenient to Page 32

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 33 of 142

18 19 20 21 22 23 24

js011808 have three sentences underneath that to say unless it is an unmarked egg, in which case it would be worth only 85 cents; is that your testimony? MR. McILMAIL: leading, argumentative, mischaracterizes his testimony. JACK SHERE, DVM 40 Objection,

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

THE WITNESS:

My testimony is

that there was an understanding between the government and Joe Cebe and Thanasi that if they are unmarked eggs, they would get 85 cents an egg. BY MR. WILKINS: Q. Why didn't you put that in

the agreement before depopulation in writing? MR. McILMAIL: lacks of foundation. THE WITNESS: Because this Objection,

occurred a couple days before the depop. BY MR. WILKINS: Q. A. So? I sent my folks in ahead of

time to check and see what the situation was, what birds were marked, banded, what birds were unbanded, how the eggs were set up, what the setup of the breeding facility was, so we could determine what Page 33

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 34 of 142

js011808 24 it was we were doing. When they came 41

JACK SHERE, DVM

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

back and reported to me that there were several birds -- that there was a loose housing situation, birds with bands on them but not the -- the majority of them were unbanded birds and that there were eggs there that were marked and eggs unmarked, that's when I had the conversation with Thanasi and Joe. Q. face? A. Q. A. Q. A. Q. It was on the phone. Did you have a fax machine? Did I have a fax machine? Yes. Sure. Why didn't you mark it up and You had a -- was that face to

fax him the new agreement? MR. McILMAIL: lack of foundation. THE WITNESS: I didn't do it Objection,

because I had the conversation with him and I asked them to be present at the depopulation and to sign the inventory. If they had a JACK SHERE, DVM 42

1 2

disagreement at that point, they should have said so. Page 34

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 35 of 142

js011808 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 BY MR. WILKINS: Q. Mr. Shere, I'm telling you

we're here today because there's a disagreement. A. I understand. MR. McILMAIL: questions. Wait for

That's not a question.

You don't need to respond to that. BY MR. WILKINS: Q. Would you agree with me that

that would have been a better method to have followed, to put it in writing and send it to them, in retrospect, sitting here today? MR. McILMAIL: Objection,

leading, argumentative, lack of foundation. THE WITNESS: Yeah, I think

after the fact it's easy to armchair-quarterback the thing, but when you're in the middle of a disease outbreak and you're dealing JACK SHERE, DVM 43

1 2 3 4 5 6 7 8

with all the other factors, it's hard to say that everything is done a hundred percent the way it would be best. BY MR. WILKINS: Q. You would agree with me,

then, that perhaps the government did not do what should have been done best; is Page 35

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 36 of 142

js011808 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that a fair statement? MR. McILMAIL: leading, argumentative. THE WITNESS: I'm saying. MR. McILMAIL: If you hear me That's not what Objection,

start to object, wait until you hear me -THE WITNESS: MR. McILMAIL: that back. (The pending question was read back.) MR. McILMAIL: lack of foundation. BY MR. WILKINS: JACK SHERE, DVM 44 Argumentative, I apologize. Would you read

1 2 3 4 5 6 7 8 9 10 11 12 13

Q.

You can answer. MR. McILMAIL: Which

question? Just answer the question that you just heard read. THE WITNESS: with that. BY MR. WILKINS: Q. A. Q. You disagree? Yes. Did you do a review before No, I disagree

today's deposition; did you review any documents, any files? Page 36

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 37 of 142

js011808 14 15 16 17 18 19 20 21 22 23 24 A. Q. A. No. You didn't review anything? No, I was under the

impression that this was not about my documents and files. Q. Why were you under the

impression it was not about your documents and files? MR. McILMAIL: Stop. Just

don't -- in answering that question, don't divulge the content of any JACK SHERE, DVM 45

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

communications you've had with me, Rick, or any other lawyer about this case. THE WITNESS: MR. McILMAIL: Okay. Just the

content of communications. THE WITNESS: MR. McILMAIL: (No response.) If you need

the question read back -THE WITNESS: Yeah, I do.

(The pending question was read back.) THE WITNESS: This happened

in 2003, and there is no way that I can go back and remember and memorize all the documents and files that occurred as a result of this case. BY MR. WILKINS: Page 37

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 38 of 142

js011808 20 21 22 23 24 Q. That wasn't my question.

Maybe you didn't understand it. You said that you didn't think this case had anything to do with your documents or that you didn't need to JACK SHERE, DVM 46

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

review them and I asked why. A. That's not what I said. MR. WILKINS: Will you read

back his answer, please. (The preceding answer was read back as follows: Question: Did you do a

review before today's deposition; did you review any documents, any files? Answer: Question: anything? Answer: No, I was under the No. You didn't review

impression that this was not about my documents and files.) BY MR. WILKINS: Q. The question is why were you

under the impression this was not about your documents and files. A. I guess I didn't say that.

What I meant was that it wasn't going to be about my memory as far as going back and reviewing all that stuff point for Page 38

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 39 of 142

js011808 JACK SHERE, DVM

47

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

point. Q. impression? A. Because it's impossible for Why were you under that

me to remember all the documents that transpired during that period of time. Q. Why didn't you go back and

look at them before today's deposition? A. You gave me the notice that I

was coming to this deposition three days ago. Q. I've been discussing your

deposition with counsel for probably a good three to six months, so the fact that we finally agreed on a date, is it your testimony you didn't know that you may be deposed until three days ago? MR. McILMAIL: leading. THE WITNESS: I never knew a That's Objection,

date until three days ago. my testimony. BY MR. WILKINS: Q.

You knew you would be deposed JACK SHERE, DVM 48

1 2 3 4

at some point, correct? MR. McILMAIL: leading. THE WITNESS: At some point. Page 39 Objection,

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 40 of 142

js011808 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Shere-1. (Exhibit Shere-1 was marked for identification.) BY MR. WILKINS: Q. I'll show you what's been BY MR. WILKINS: Q. I'm going to show you

something that's marked D164-165 for identification. MR. WILKINS: We'll mark it

marked Shere-1 for identification, and it is a document that is Bates stamped D164 and D165. copy of it. I apologize, I only have one I'll have to ask you to give

it back to me as I go through it with you. I'll ask you to take a look at this document and tell me if you can identify it. A. This is the order to dispose JACK SHERE, DVM 49

1 2 3 4 5 6 7 8 9

of poultry and eggs. Q. A. and eggs. Q. A. Q. A. 2003. Page 40 Who signed that? I signed it. When did you sign it? It's dated the 16th of April, What is that called? Order to dispose of poultry

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 41 of 142

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

js011808 Does that help refresh your

recollection as to the general time that the eggs would have been -- excuse me, that the destruction of the poultry and eggs would have taken place? A. Q. Yes. Was a document like this

generally filled out by you with respect to each particular farm that may have been involved in the destruction of birds and eggs? MR. McILMAIL: leading. THE WITNESS: No. Sometimes Objection,

it was done by an IC; sometimes it JACK SHERE, DVM 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

was done by me. BY MR. WILKINS: Q. A. What is an IC? Incident commander. I didn't

handle all the depopulations. Q. Is this a document that's

actually given to Joe Cebe? MR. McILMAIL: leading and vague. THE WITNESS: BY MR. WILKINS: Q. Is there a reason that you Yes. Objection,

didn't put in this particular document that the eggs would be put into two different categories for compensation Page 41

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 42 of 142

js011808 16 17 18 19 20 21 22 23 24 purposes? A. Q. A. Yes. What was that? This is an order to dispose.

It has nothing to do with indemnity. Q. Was there a point in time

that Cebe Farms was quarantined? A. Q. Yes. What does that mean? JACK SHERE, DVM 51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

A.

Quarantined means they are

restricted from movement of poultry, poultry products from the premises. Q. Does that include poultry and

poultry products both coming in and leaving the farm? A. No, poultry products could You

come in, they just couldn't leave.

could bring eggs in -- it wouldn't be a good idea if you were infected. You'd

have to bring feed in to feed your animals, that sort of thing, but nothing could leave, such as manure, any waste, any eggs, any birds. Q. What did the government do to

make sure the quarantine was kept in place -MR. McILMAIL: lack of foundation. BY MR. WILKINS: Page 42 Objection,

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 43 of 142

21 22 23 24 that.

Q.

js011808 -- with respect to -- strike

Did the government do anything to ensure that the quarantine JACK SHERE, DVM 52

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

was effective? A. Q. A. Yes. What did it do? A couple things. We posted I'm not

folks on a lot of the farms.

sure of the exact thing with Cebe, but we generally posted someone on the farm to C and D, or clean and disinfect, trucks and trailers and anything coming off the farm so the disease wasn't spread from the farm to other locations. Q. When you say you posted

somebody, was that some type of guard? A. It wasn't a guard. It was

generally like an animal health technician that was familiar with cleaning and disinfection techniques, was trained. Q. Do you know specifically what

was posted at the Cebe Farms? A. Q. I do not. Were there ever armed guards

put at these farms? A. No, no farms had any armed JACK SHERE, DVM Page 43 53

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 44 of 142

js011808 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 leading. THE WITNESS: The order of guards posted. Q. Do you have records of who

would have been guarding Cebe Farms? A. We didn't have a guard. We

had AHTs posted to do C and D. Q. A. Q. A. You had? AHTs that were there -AHTs? Animal health technicians is

what that stands for, and they were there to help and assist with cleaning and disinfection. Q. Were they also there to

ensure birds weren't taken off the farm and eggs weren't taken off the farm? MR. McILMAIL: Objection,

quarantine is supposed to take care of that. If we had gotten

information that said that that order was being violated either from the public or from our people that were in the area, then we would have JACK SHERE, DVM 54

1 2 3 4 5

handled that either through the local police, asking for their assistance, or we would have used our own investigation personnel to determine if that was correct. Page 44

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 45 of 142

js011808 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 leading. BY MR. WILKINS: Q. Is that correct? JACK SHERE, DVM 55 leading. THE WITNESS: I never BY MR. WILKINS: Q. Did information ever come to

you suggesting that Cebe Farms was bringing any additional poultry or any additional eggs to the farm in question? MR. McILMAIL: Objection,

received any information about that. BY MR. WILKINS: Q. Sitting here today, you have

no reason to believe that he would have brought in additional eggs to his farm between the time of the quarantine and the time of the depopulation? MR. McILMAIL: Objection,

1 2 3 4 5 6 7 8 9 10 11 leading.

MR. McILMAIL:

Objection,

THE WITNESS:

Again, we

posted no guards so he wasn't under 24-hour surveillance. BY MR. WILKINS: Q. I understand that. I'm just

asking if anything ever came to your attention. A. that regard. Page 45 Nothing ever came to me in

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 46 of 142

js011808 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Getting back to the issue of

the eggs, was it the actual marking which was important or was it the type of egg that was important to you in determining valuation? MR. McILMAIL: leading, compound. THE WITNESS: The marking Objection,

was, on our part, a way to determine what the type of egg was which was determining the value. BY MR. WILKINS: Q. What was ultimately of main JACK SHERE, DVM 56

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

import was determining the type of egg as opposed to the type of marking; is that a fair statement? MR. McILMAIL: leading. THE WITNESS: The type of Objection,

marking would have made no difference to us because we wouldn't know the breeding behind it. We

were taking Joe Cebe's word that a marked egg was a great-grandparent egg. BY MR. WILKINS: Q. What I'm trying to understand

is with respect to the eggs, you're out there and you're having discussions with Page 46

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 47 of 142

17 18 19 20 21 22 23 24

js011808 him concerning indemnification for the eggs, correct, before depopulation? A. Q. A. Q. Uh-huh. You have to verbalize. Yes. In terms of discussing the

indemnification for the type of eggs, the reason for the disparity of $19.06 per JACK SHERE, DVM 57

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

egg versus 85 cents, I think you said, per egg had to do with the type of egg more than the type of marking, correct? MR. McILMAIL: leading. THE WITNESS: Yes. The Objection,

marking was used to determine the type of egg. BY MR. WILKINS: Q. If you had reason to believe

the markings were inaccurate, then you wouldn't have just paid him for the value of an egg according to the marking, you would want to pay him according to the type of egg; is that a fair statement? MR. McILMAIL: leading, argumentative. THE WITNESS: No. Any egg Objection,

marked was paid for at the higher rate, with any kind of marking. didn't argue over whether it was marked correctly or incorrectly. Page 47 We We

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 48 of 142

js011808 23 24 just paid any marked egg at the higher rate. JACK SHERE, DVM 58

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

BY MR. WILKINS: Q. The higher rate had to do

with the fact that it was a different type of egg than the ones that you believed to be not marked? MR. McILMAIL: leading. BY MR. WILKINS: Q. Is that correct? Let me ask Objection,

you, then, how did you derive a different value for the type of eggs other than their marking? A. That's the only way we could

determine their value was by them being marked. They were undetermined if they

weren't marked. Q. Why did you have this

distinction, I guess is the question. A. Because he had

great-grandparent birds and grandparent birds and other birds in there. Q. there? A. They were unmarked, they were JACK SHERE, DVM 59 What other birds did he have

1

undetermined, they were just mixed. Page 48

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 49 of 142

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

Q. birds there? A.

js011808 How do you know he had other

No wing bands, no

identification. Q. A. What is a wing band? Wing band is put on a bird --

it's a number or series of letters that identifies the bird, and from that identification, you can keep records. Q. wing bands? A. I wrote him. Q. A. I think that's in the letter It's in the inventory. Which letter? I wrote him a letter after How many birds did not have

the depopulation. Q. A. When was that? After we took the inventory.

I don't know the exact date he received it, but I know that Thanasi sent us questions and it was an attempt to answer those questions. Q. Do you recall approximately JACK SHERE, DVM 60

1 2 3 4 5 6 7

how many birds did not have that wing band? A. I don't remember even how I think around

many birds were there.

1,700 to 2,000, and I think less than a quarter to a third had wing bands. MR. WILKINS: Two. Page 49

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 50 of 142

js011808 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (Exhibit Shere-2 was marked for identification.) THE WITNESS: from memory. BY MR. WILKINS: Q. I'll show you what's been That's just

marked Shere-2 for identification and ask you if you can identify that document (indicating). A. about. Q. was written? A. I wrote it after I received Do you know what date this This is the letter I spoke

the letter from Thanasi asking me about the compensation and he had several questions. The questions are on the back JACK SHERE, DVM 61

1 2 3 4 5 6 7 8 9 10 11 12

here, stapled to this.

This was our

response to these questions. MR. WILKINS: back my question. (The pending question was read back.) THE WITNESS: I don't know Would you read

the exact date, but it was after April 16th. BY MR. WILKINS: Q. Is there any particular

reason why you didn't put a date on the Page 50

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 51 of 142

js011808 13 14 15 16 17 18 19 20 21 22 23 24 letter? A. Q. No. Is that just something that

you don't do or you forgot to do in this case? MR. McILMAIL: leading, compound. THE WITNESS: oversight. It was just an Objection,

I can probably go back

to my computer and see what date this was written. BY MR. WILKINS: JACK SHERE, DVM 62

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 file?

Q.

Did you maintain all these

records on your computer to date? A. I still have some of the --

not all the records that you probably have, but I have my own records. this letter on my computer. Q. What records do you think you I have

no longer have? A. I didn't keep all the records I only kept letters that

for this case.

I wrote and information that was sent to me. There was another file that

contained all the records. Q. What happened to that other

A.

We sealed that file and kept

it in California in the warehouse. Q. Does it still exist? Page 51

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 52 of 142

js011808 19 20 21 22 23 24 A. Q. A. destroyed. I don't believe it does. When was it destroyed? I don't know if it was I think it was probably lost. We've

Some of the information was lost. tried to go back.

We did pull the file 63

JACK SHERE, DVM

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

as much as we could and gave -- forwarded that information that was in there, but we have found there are things we thought were in there that are missing. Q. A. Such as? Such as your questions around

a letter to Joe Cebe, the inventory that was signed on the date of depop, was signed by Thanasi. Q. A. Q. That no longer exists? Can't seem to find it. That would have been

something that would have been -- the government would have kept, correct? MR. McILMAIL: leading. THE WITNESS: kept that, yes. BY MR. WILKINS: Q. When did you put these We would have Objection,

documents or -- When I say "you," when do you understand the government sealed that file and sent it to a warehouse in Page 52

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 53 of 142

js011808 24 California? JACK SHERE, DVM 64

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

A.

We closed down the incident

in late September when all the disease was gone. Those files were all put into

the warehouse at that point. Q. A. Q. September of '03? Yes. At that time, were you aware

that Cebe Farms was disputing the amount of the indemnity? MR. McILMAIL: lack of foundation. THE WITNESS: aware of that. BY MR. WILKINS: Q. When did you first become No, I was not Objection,

aware of that? A. I heard about it probably a

year later, that he had gotten a lawyer, someone based in Washington, and was suing the government. Q. What else was missing from

that file as far as you know it? A. That's the only thing I can

remember that has been asked about that JACK SHERE, DVM 65

1 2 3

we can't find. Q. What was put in that file

when it was placed in storage? Page 53

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 54 of 142

js011808 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 file. Q. The actual wing bands were in JACK SHERE, DVM 66 A. Things like this letter and

any communications that we had, notes, the wing bands were in there, pictures of the birds at Joe Cebe's farm, pictures of the farm. Q. those? A. The pictures and the wing They were still Were you able to locate

bands have been located. in the box in the file. Q. A.

Anything else missing? Like I said, I don't know

other than that document what's missing, but that document, we have information about because other people had seen it and had went back to look for it. Q. The notes and the wing bands,

they were still in the file? A. The wing bands were in the

1 2 3 4 5 6 7 8

the file? A. Q. That's correct. How were these wing bands

placed on the chickens? A. They are -- the wing webbing

is a loose piece of skin, and the wing band is inserted, clipped through that wing webbing. Page 54

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 55 of 142

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

js011808 What's the reliability of

those wing bands staying on? A. Q. A. Pretty good. Does it ever fall off? I think if they got them --

chickens housed in cages sometimes can get them caught and they'll rip them out, but loose-housed birds such as these should have been able to maintain those wing bands fairly well. Q. Let's go through your letter.

I think in the second paragraph it talks about there was 105,143 eggs on the premises; do you see that? A. Q. Yes. That would have been taken JACK SHERE, DVM 67

1 2 3 4 5 6 7 8 9 10 11 12 13 14

from the government records from the date the destruction occurred? MR. McILMAIL: leading. THE WITNESS: That would have Objection,

been taken from the final inventory that was agreed upon and signed by both parties at the time of depopulation. BY MR. WILKINS: Q. I think if I understand your

testimony from earlier today, you said that there were clear discussions with Mr. Preovolos and Cebe Farms before the Page 55

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 56 of 142

js011808 15 16 17 18 19 20 21 22 23 24 leading. THE WITNESS: BY MR. WILKINS: Q. This letter would have been That's correct. depopulation that the value for eggs that were unmarked would be 85 cents; did I understand you correctly? MR. McILMAIL: Objection,

written shortly after those discussions would have taken place, correct? JACK SHERE, DVM 68

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 correct. leading.

MR. McILMAIL:

Objection,

leading, lack of foundation. THE WITNESS: That letter was

written in response to these questions -BY MR. WILKINS: Q. please. A. Q. Shortly after, yes. At this point in time, you Listen to my question,

received a bunch of questions, which I think are on D340 through D342, from Mr. Preovolos; is that accurate? MR. McILMAIL: Objection,

THE WITNESS:

Yes, that's

BY MR. WILKINS: Q. How did you perceive these Page 56

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 57 of 142

js011808 20 21 22 23 24 vague. BY MR. WILKINS: Q. In other words, did you JACK SHERE, DVM 69 questions? MR. McILMAIL: Objection,

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

perceive the questions raised by Mr. Preovolos to be questions concerning a difference of opinion with respect to indemnification? MR. McILMAIL: leading and vague. THE WITNESS: The whole time Objection,

we dealt with Mr. Preovolos, he sent questions and we were asked to answer them. BY MR. WILKINS: Q. Did you perceive them to be

questions concerning disputes involving indemnification issues? MR. McILMAIL: leading and vague. THE WITNESS: I think -Objection,

yeah, I think there was a misunderstanding of what he thought and what we were offering. BY MR. WILKINS: Q. This would have been the

perfect opportunity, would it have not, to have clarified those misunderstandings JACK SHERE, DVM Page 57 70

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 58 of 142

js011808

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

by reiterating what had occurred just days earlier about the eggs and the different values; would it not have been? MR. McILMAIL: leading, argumentative. THE WITNESS: Yes, it would Objection,

have been a good time to do that. That's what the letter was for. BY MR. WILKINS: Q. Can you show me where in this

letter that you wrote to Joe Cebe you reference your conversation just days earlier with Mr. Cebe and his attorneys where they agreed with you that the value of certain eggs would be 85 cents per egg? MR. McILMAIL: lack of foundation. THE WITNESS: the letter. BY MR. WILKINS: Q. A. Q. It's not in the letter? (Indicates.) No? JACK SHERE, DVM 71 No, it's not in Objection,

1 2 3 4

A. Q.

No. Do you say anywhere in this

letter that we just had a conversation about this just days ago, there is a Page 58

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 59 of 142

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

js011808 misunderstanding on your part, anything along those lines? A. Q. No. I think on Page 2 you discuss

-- let's go to the bottom of Page 1 on D336. It says there were 81,090 eggs on

the premises which were not identified or labeled in any fashion. A. Q. Yes. It says accordingly, they Do you see that?

could not have been used for breeding purposes; do you see that? A. Q. Yes. What is the basis for your

statement that because they were not labeled, they could not be used for breeding purposes? A. They could not be used for

breeding purposes as a great-grandparent bird because their breeding is unknown. JACK SHERE, DVM 72

1 2 3 4 5 6 7 8 9 10

Q. strike that.

Just because it's unknown --

If, in fact, they were great-grandparent birds, then would you agree with me they would have been entitled to compensation at the higher rate that we had been discussing? MR. McILMAIL: leading, argumentative. THE WITNESS: If they were Page 59 Objection,

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 60 of 142

js011808 11 12 13 14 15 16 17 18 19 20 21 22 23 24 clearly labeled as great-grandparent birds and the genetics behind that egg was known, then they could be used as a great-grandparent bird. Otherwise, they're a table egg. They're worth less than 85 cents in my opinion. BY MR. WILKINS: Q. It's your testimony that the

reason that the eggs -- 81,000 eggs were not great-grandparent or grandparent birds was simply a matter that they were not identified that way, correct? MR. McILMAIL: Objection, 73

JACK SHERE, DVM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

leading. THE WITNESS: They were not

clearly identified as to their genetic value. BY MR. WILKINS: Q. Would you agree with me if

this was a pure breeding farm, they had to be either great-grandparent birds or grandparent birds? MR. McILMAIL: leading. THE WITNESS: not. BY MR. WILKINS: Q. Why is that? Page 60 No, I would Objection,

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 61 of 142

16 17 18 19 20 21 22 23 24

A.

js011808 Because if you throw a bunch

of pure breeding birds together and you have a six-way cross, you cannot identify them as a genetic stock to get to the point of the bird you want to produce at the end for the slaughter bird. no way you can do that. Q. A. There's

It's too mixed.

It's too mixed at that point? Yeah. JACK SHERE, DVM 74

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 case?

Q.

Do you know if that was the

A.

The birds were loosely The

housed, they were unidentified.

breeding going on, if it was going on, was unfettered, meaning that a great-grandparent bird could breed with a grandparent bird of unknown genetic stock. Q. occurred? A. Based on the way they were Do you know if that, in fact,

housed, there was no way it could be prevented. Q. A. You were at the farm? I went and saw the setup and

I saw the pictures of the farm, also, and I had reports back from my folks as they visited the farm. Q. second. Let's take a step back for a At some point in time, a Page 61

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 62 of 142

js011808 22 23 24 decision was made to retain a Richard Udale; is that correct? MR. McILMAIL: Objection, 75

JACK SHERE, DVM

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

leading, vague, lack of foundation. THE WITNESS: There was. At

some point in time, we did decide to obtain Richard Udale. MR. WILKINS: marked as Shere-3. (Exhibit Shere-3 was marked for identification.) BY MR. WILKINS: Q. I'll show you what's been I'll have that

marked Shere-3 for identification and ask if you've seen this document before (indicating). A. Q. Yes. Before we get into this

document, earlier today you said that one of the bases for indemnification for some of the eggs only being 85 cents as opposed to being that -A. Q. 19.06. -- $19.06 was based upon

discussions that you had and understandings that you had with Mr. Cebe and his attorney prior to the JACK SHERE, DVM 76

Page 62

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 63 of 142

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

js011808 depopulation; did I understand you correctly? MR. McILMAIL: leading. THE WITNESS: correct. BY MR. WILKINS: Q. Is it your testimony that Yes, that's Objection,

there can be oral agreements which would bind both parties to valuation? MR. McILMAIL: leading. THE WITNESS: I think what I Objection,

was trying to do with Joe Cebe and Thanasi was explain to them that we were going to take an inventory and that all indemnity is based on that inventory. BY MR. WILKINS: Q. That wasn't my question. I'm

going to remind you of the first instruction. Please listen to my

question and give me an answer, because you started saying you were trying to JACK SHERE, DVM 77

1 2 3 4 5 6

explain an inventory, something along those lines. My question has to do with whether or not it's your testimony that as far as you were concerned oral agreements that you may have with an Page 63

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 64 of 142

js011808 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 owner such as Cebe Farms were binding upon both parties. MR. McILMAIL: leading, vague. THE WITNESS: say it was binding. No, I didn't What I said was Objection,

-- what I said to Cebe was I wanted them present at the inventory and to sign off on what that inventory said and agree to it because we were going to base the indemnity amount on that inventory. critical. BY MR. WILKINS: Q. The dispute as we come down It's very

to it, as far as I'm learning, is whether or not certain eggs were worth $19.06 per egg or 85 cents per egg. JACK SHERE, DVM 78

1 2 3 4 5 6 7 8 9 10 11

A. Q.

Right. Is that your understanding of

what it's come down to? MR. McILMAIL: leading. THE WITNESS: you, it is. BY MR. WILKINS: Q. A. dispute. Have you heard that from -I've heard that's part of the I think there are other issues. Page 64 I guess from Objection,

Case 1:05-cv-00965-MMS

Document 43-3

Filed 04/10/2008

Page 65 of 142

12 13 14 15 16 17 18 19 20 21 22 23 24

Q.

js011808 I guess my question is at

some point is it your understanding that when there was an agreement in place that both sides would be bound by that agreement and they couldn't change their minds? MR. McILMAIL: leading. THE WITNESS: No, at no time. Objection,

I mean, if we went in to depopulate on the day we went to depopulate and Joe didn't agree to what was happening, we would have stopped and JACK SHERE, DVM 79

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

walked away. BY MR. WILKINS: Q. Is it your understanding

with, let's say, farms in general that once you came to an agreement, after depopulation one of the parties could come back and say we didn't have a deal or I want to change the deal, or if ther