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MELVIN M.L.

McELVEE (VOL I) 4/23/2008

Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL BREACHES CIVIL ACTION
CONSOLIDATED LITIGATION NO. 05-4182 K2
JUDGE DUVAL
PERTAINS TO MAG. WILKINSON
(Robinson, No. 06-2268)
- AND -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL BREACHES CIVIL ACTION
CONSOLIDATED LITIGATION NO. 05-4182 K2
JUDGE DUVAL
FILED IN: MAG. WILKINSON
05-4181, 05-4182, 05-5237, 05-6073, 05-6314,
05-6324, 05-6327, 06-0225, 06-0886, 06-1885,
06-2278, 06-2287, 06-4065, 06-4389, 06-4634,
06-4931, 06-5032, 06-5159, 06-5161, 06-5260,
06-5937, 07-1271
(V O L U M E I)
Deposition of MELVIN M.L. MCELWEE,
SR., given at the Law Office of Joseph M.
Bruno, 855 Baronne St., New Orleans, Louisiana
70113, on April 23rd, 2008.
REPORTED BY:
JOSEPH A. FAIRBANKS, JR., CCR, RPR
CERTIFIED COURT REPORTER #75005

JOHNS PENDLETON COURT REPORTERS 800 562-1285


MELVIN M.L. McELVEE (VOL I) 4/23/2008
Page 2 Page 4
1 APPEARANCES: 1 REPRESENTING WASHINGTON GROUP INTERNATIONAL:
2 REPRESENTING THE PLAINTIFFS: 2 STONE PIGMAN WALTHER WITTMANN, L.L.C.
3 BRUNO & BRUNO 3 (BY: WILLIAM D. TREEBY, ESQUIRE)
4 (BY: JOSEPH M. BRUNO, ESQUIRE) 4 (BY: HEATHER S. LONIAN, ESQUIRE)
5 (BY: FLORIAN BUCHLER, ESQUIRE) 5 546 Carondelet Street
6 (BY: SCOTT JOANEN, ESQUIRE) 6 New Orleans, Louisiana 70130
7 855 Baronne Street 7 504-581-3200
8 New Orleans, Louisiana 70113 8
9 504-525-1335 9 REPRESENTING ORLEANS LEVEE DISTRICT:
10 - and - 10 SUTTON LAW FIRM
11 LAMBERT AND NELSON 11 (BY: CHARLES E. SUTTON, JR., ESQUIRE)
12 (BY: HUGH P. LAMBERT, ESQUIRE) 12 2101 N. Highway 190, Suite 105
13 701 Magazine Street 13 Covington, Louisiana 70433
14 New Orleans, Louisiana 70130 14 985-249-5991
15 504-581-1750 15
16 - and - 16 ALSO PRESENT:
17 SHER, GARNER, CAHILL, RICHTER, KLEIN & 17 JOHN L. ROBERT, III, ESQ.
18 HILBERT, L.L.C. 18 KEA SHERMAN, ESQ.
19 (BY: MATTHEW CLARK, ESQUIRE) 19 RYAN M. MALONE, ESQ.
20 909 Poydras Street, 28th Floor 20 MARK S. RAFFMAN, ESQ. (VIA I-DEP)
21 New Orleans, Louisiana 70112 21 CHARLES LANIER, ESQ. (VIA I-DEP)
22 504-299-2100 22 JENNIFER SHUMAKER, ESQ. (VIA I-DEP)
23 23 ADAM CHUD, ESQ. (VIA I-DEP)
24 24 J. WARREN GARDNER, JR., ESQ. (I-DEP)
25 25 VIDEOGRAPHER: GILLEY DELORIMIER (DEPO-VUE)

Page 3 Page 5
1 - and - 1 EXHIBIT INDEX
2 WIEDEMANN & WIEDEMANN 2
3 (BY: KARL WIEDEMANN, ESQUIRE) 3 EXHIBIT NO. PAGE
4 821 Baronne Street 4 Exhibit 1 .................................8
5 New Orleans, Louisiana 70113 5 Exhibit 2 .................................8
6 504-581-6180 6 Exhibit 3 ................................10
7 7 Exhibit 4 ................................10
8 REPRESENTING THE UNITED STATES OF AMERICA: 8 Exhibit 5 ................................26
9 UNITED STATES DEPARTMENT OF JUSTICE, 9 Exhibit 6 ................................94
10 TORTS BRANCH, CIVIL DIVISION 10 Exhibit 6 ...............................132
11 (BY: SARAH SOJA, ESQUIRE) 11 Exhibit 7 ...............................164
12 (BY: PAUL LEVINE, ESQUIRE) 12 Exhibit 8 ...............................181
13 P.O. Box 888 13 Exhibit 9 ...............................195
14 Benjamin Franklin Station 14 Exhibit 10 ...............................216
15 Washington, D.C. 20044 15 Exhibit 11 ...............................224
16 202-616-4289 16 Exhibit 13 ...............................225
17 17 Exhibit 12 ...............................227
18 REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS. 18 Exhibit 14 ...............................232
19 CORPS OF ENGINEERS, OFFICE OF COUNSEL 19 Exhibit 15 ...............................232
20 (BY: DAVID DYER, ESQUIRE) 20 Exhibit 16 ...............................234
21 (BY: JENNIFER LABOURDETTE, ESQUIRE) 21 Exhibit 17 ...............................234
22 (BY: JUDY ALMERICO, ESQUIRE) 22 Exhibit 18 ...............................254
23 7400 Leake Avenue 23 Exhibit 19 ...............................257
24 New Orleans, Louisiana 70118-3651 24 Exhibit 20 ...............................266
25 504-862-2843 25 Exhibit 21 ...............................269

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1 Exhibit 22 ...............................271 1 MELVIN M.L. MCELWEE, SR.
2 Exhibit 23 ...............................273 2 14154 Rev. Joseph White Road, Independence,
3 Exhibit 24 ...............................274 3 Louisiana 70443, a witness named in the above
4 Exhibit 25 ...............................288 4 stipulation, having been first duly sworn, was
5 Exhibit 26 ...............................292 5 examined and testified on his oath as follows:
6 Exhibit 27 ...............................294 6 MR. BRUNO:
7 Exhibit 28 ...............................318 7 Let's go off the record for a
8 Exhibit 29 ...............................330 8 second.
9 Exhibit 30 ...............................333 9 (Off the record.)
10 Exhibit 31 ...............................335 10 MR. BRUNO:
11 Exhibit 32 ...............................343 11 All right. The first thing I'd
12 Exhibit 33 ...............................346 12 like to do is mark as an exhibit the
13 Exhibit 34 ...............................348 13 Amended Notice of Deposition. Both
14 Exhibit 35 ...............................353 14 amended? Where's the original? All
15 EXAMINATION INDEX 15 right. We have two Amended Notice of
16 16 Deposition. One --
17 EXAMINATION BY: PAGE 17 What's the difference between the
18 18 two?
19 MR. BRUNO ................................12 19 (Exhibit 1 was marked for
20 MR. TREEBY ...............................215 20 identification and is attached hereto.)
21 21 (Exhibit 2 was marked for
22 22 identification and is attached hereto.)
23 23 MR. JOANEN:
24 24 One is Robinson, one is MRGO.
25 25 MR. BRUNO:
Page 7 Page 9
1 STIPULATION 1 We have two notices. One
2 IT IS STIPULATED AND AGREED by and 2 reflects -- the first notice shows
3 among counsel for the parties hereto that the 3 that this deposition is being noticed
4 deposition of the aforementioned witness may be 4 in MRGO and in Robinson --
5 taken for all purposes permitted within the 5 MR. TREEBY:
6 Federal Rules of Civil Procedure, in accordance 6 Robinson is in the MRGO category
7 with law, pursuant to notice; 7 of cases.
8 That all formalities, save reading 8 MR. JOANEN:
9 and signing of the original transcript by the 9 Only Robinson. That's what he
10 deponent, are hereby specifically waived; 10 means. That's the caption for only
11 That all objections, save those as to 11 Robinson.
12 the form of the question and the responsiveness 12 MR. TREEBY:
13 of the answer, are reserved until such time as 13 It's in the MRGO category of
14 this deposition, or any part thereof, is used 14 cases -- Robinson is.
15 or sought to be used in evidence. 15 MR. BRUNO:
16 16 I'll tell you how the CMO tells
17 17 you how to do it after the deposition.
18 * * * 18 It says MRGO/Robinson. The
19 19 second notice says pertains to MRGO.
20 20 I want to make it clear on the record
21 21 that this deposition, so that it's
22 JOSEPH A. FAIRBANKS, JR., CCR, RPR, 22 crystal clear to all involved, is
23 Certified Court Reporter in and for the State 23 being noticed in both the Robinson
24 of Louisiana, officiated in administering the 24 case scheduled to be tried in
25 oath to the witness. 25 September and the MRGO class action

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1 scheduled to be tried in June of '09. 1 All right. Which is the usual
2 The next things I'd like to mark 2 stipulation.
3 and attach are two CVs. The first one 3 MR. LEVINE:
4 has got the -- I'm trying to 4 I don't know what the usual
5 distinguish between the two. 5 stipulation means.
6 Technical background, it says Page 1 6 EXAMINATION BY MR. BRUNO:
7 of 4. I'll mark it as 3, and the 7 Q. All right. Okay. All right, sir.
8 other one with a smaller print font 8 Would you please, for the record, give
9 I've marked as Exhibit 4. And that 9 us your full name as well as your home address.
10 says -- I'm sorry, Exhibit 3 says 1 of 10 A. My full name is Melvin Millard Louis
11 4, Exhibit 4 says 1 of 3. 11 McElwee, Sr. My home address is 14154
12 (Exhibit 3 was marked for 12 Rev. Joseph White Road, Independence, Louisiana
13 identification and is attached hereto.) 13 70443.
14 (Exhibit 4 was marked for 14 Q. Mr. McElwee, are you currently
15 identification and is attached hereto.) 15 employed?
16 MR. MALONE: 16 A. Yes.
17 Reserve the right of Lake Borgne 17 Q. And for whom do you work?
18 to ask questions regarding MRGO. 18 A. McElwee Brothers. Self-employed.
19 MR. BRUNO: 19 Q. All right. And would you share with
20 Sorry. Let me ask the question. 20 us, please, what is the general work of McElwee
21 Those of you who, prior to my remarks 21 Brothers?
22 about the cases into which these cases 22 A. The general work of McElwee Brothers
23 are noticed, if anybody wants to 23 is civil construction. McElwee Brothers is
24 change their appearance from appearing 24 licensed highway, roads and bridges, for the
25 only to participating, I'm going to 25 state of Louisiana, License Number 31553.
Page 11 Page 13
1 ask you to do it now to protect the 1 Q. Now, do I gather from the name McElwee
2 record. And you've so indicated. 2 Brothers that you've got a brother? Who's in
3 Anybody else? Okay. Just for 3 this business with you?
4 the record, everybody has the right to 4 A. No, sir. That name was designated for
5 ask questions is the bottom line, 5 my two sons who are brothers.
6 including Barge. 6 Q. All right. Can I conclude then that
7 MR. TREEBY: 7 you are the principal in the enterprise which
8 Joe, are you going to ask 8 is called McElwee Brothers?
9 questions in Robinson? 9 A. I am the 100 percent stockholder in
10 MR. BRUNO: 10 McElwee Brothers.
11 Yes. 11 Q. All right. Can you give us just a
12 MR. TREEBY: 12 general sense of the kind of construction, or
13 And later ask questions for MRGO, 13 construction work, that your firm has done over
14 or are you combining them together? 14 the last several years?
15 MR. BRUNO: 15 A. Over the last several years we've,
16 I'm just asking questions. I 16 um -- performed pile driving, box culvert canal
17 wouldn't know how to do that, Bill. 17 section work, pile driving for bridge work, and
18 I'm not as smart as you. 18 in particular one project for the Corps of
19 The usual stipulation is fine 19 Engineers along the Inner Harbor Navigational
20 with me. 20 Canal, also the pile driving for the bridge
21 Anybody? 21 work in Shreveport for Austin Bridge and Rode
22 MR. LEVINE: 22 out of Irving, Texas. The Red River bridge
23 Whatever is in the Federal Rules 23 crossing right outside of Barksdale Air Force
24 of Civil Procedure. 24 Base. We did some work also for the LSU
25 MR. BRUNO: 25 campus, as a subcontractor, recreational

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1 fields, redoing their parking lot, things of 1 A. Yes.
2 those natures. 2 Q. And what did you do at the Air Force?
3 Q. I understand. Okay. All right. 3 A. I was a general purpose vehicle
4 Well, if you don't mind, I would like to learn 4 mechanic. If you look under technical
5 a little bit about your background, your 5 development, on Page 1, it shows my Air Force
6 education and some of your employment over 6 experience of that Exhibit 3. Stationed at
7 time. 7 Chanute Air Force Base.
8 You've been kind enough to supply us 8 (Off the record.)
9 with two résumés; is that correct? 9 EXAMINATION BY MR. BRUNO:
10 A. Yes. 10 Q. Forgive me, Mr. McElwee, I'm just
11 Q. All right. And as I indicated on the 11 trying to have a record that when people read
12 record, I marked the four-page document as 12 it it's very clear. So you left high school,
13 Exhibit 3, so why don't we pick that one up 13 you went into the Air Force. And on Page 1 of
14 first. 14 Exhibit 3, there's a description of the courses
15 A. Yes. 15 that you took, correct?
16 Q. And then we've got the other one which 16 A. Yes.
17 we've marked as Exhibit 4 which is a 17 Q. All right. Now, for how long were you
18 three-paged document. 18 in the Air Force?
19 A. Yes. 19 A. Four years.
20 Q. My first question to you, sir, is what 20 Q. All right. And what was the highest
21 is the difference if any between these two 21 rank that you obtained before leaving?
22 résumés? 22 A. E4.
23 A. The difference is my earlier years 23 Q. E4.
24 experience after coming out of the active 24 A. Yes.
25 component of the Air Force and working for the 25 Q. All right. After you left the Air
Page 15 Page 17
1 Corps of Engineers as a quality assurance 1 Force, what did you do, sir?
2 representative, it explains the professional 2 A. Came back to New Orleans and was
3 development courses that I've taken with the 3 employed by the United States Army Corps of
4 Corps of Engineers and also some technical 4 Engineers.
5 development courses that I've taken in the U.S. 5 Q. All right. For how long were you
6 Air Force. It explains that in Exhibit 3, but 6 employed by the United States Army Corps of
7 in Exhibit 4 it doesn't. It's more management 7 Engineers?
8 in Exhibit 4. 8 A. Five years.
9 Q. All right. Do both of those exhibits 9 Q. All right. Now, what were -- here we
10 reflect your work experience, that is, the jobs 10 go. No, that's the National Guard. Let's see.
11 that you've held over time? 11 Okay.
12 A. Yes. 12 Would that be reflected on Page 3 of 4
13 Q. All right. Let's look at Number 3, 13 of Exhibit Number 3?
14 then. 14 A. Yes.
15 Did you grow up here in the New 15 Q. All right, sir. And you've indicated
16 Orleans Metropolitan area? 16 on this résumé that you were a quality
17 A. I was born in New Orleans. 17 assurance representative from December, 1998,
18 Q. Okay. It says here that you went to 18 to August, 1993.
19 Alfred Bonnabel High School in Metairie, and 19 A. That's December, 1988 --
20 you graduated May, '83. Is that correct? 20 Q. '88.
21 A. That's correct. 21 A. -- to August, 1993, yes.
22 Q. Okay. And then after that you were -- 22 Q. About five years, as you've already
23 you went into the Army? 23 indicated to us. Okay. Now, you worked at the
24 A. Went into the United States Air Force. 24 New Orleans District office?
25 Q. Oh, the Air Force. I'm sorry. 25 A. Yes.

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1 Q. Okay. We've seen in the past some 1 And if you can't tell me why it's
2 organizational chart, and you'll forgive me for 2 unclear, then I can't change the form
3 not having one in front of me today, but for 3 to assist you.
4 which branch or division did you work within 4 MR. TREEBY:
5 the district office? 5 I told you what --
6 A. Construction division, the New Orleans 6 MR. BRUNO:
7 area office. 7 Let me finish. You've had your
8 Q. Okay. And the construction division 8 say. I asked the question because the
9 is a part of -- at that time, was a part of 9 purpose of an objection to form is to
10 which branch, was that an engineering or -- I 10 alert the questioner that there may be
11 know I'm testing you now. 11 an opportunity to change the question,
12 A. You have engineering division, then 12 which I'm happy to do. But for me to
13 you have construction division, at that time. 13 change the question I need to
14 Construction just dealt with the work in 14 understand what your problem is. And
15 progress as it was taking place and monitoring 15 you've told me, I don't get it, so
16 the work in progress. 16 we're going to move on.
17 Q. I see. Might that have been the 17 MR. TREEBY:
18 projects section? 18 Well, I'll try to explain it if
19 A. Yes. 19 you want further --
20 Q. Okay. Now, as I remember these many 20 MR. BRUNO:
21 depositions that we've been in -- all been 21 Yes, I would like further
22 involved in over the several weeks, there was 22 explanation.
23 usually a project manager assigned to a 23 MR. TREEBY:
24 particular construction project. 24 You argued with my explanation.
25 Do you recall whether that is accurate 25 That's why I --
Page 19 Page 21
1 in what you remember of your employment from 1 MR. BRUNO:
2 '88 to '93? 2 No, I didn't argue with it. I
3 MR. TREEBY: 3 said I didn't understand it. You said
4 Object to the form of the 4 it's just vague which is very
5 question. 5 difficult for me to comprehend.
6 MR. BRUNO: 6 Now, one more time. What's wrong
7 What's wrong with the form, Bill? 7 with the form?
8 MR. TREEBY: 8 MR. TREEBY:
9 It's vague. I don't know whether 9 When you asked me, I said it's
10 you're talking about the contractor's 10 vague, I don't know whether you're
11 responsibility. It just vague. 11 talking about the contractor's
12 MR. BRUNO: 12 responsibility. It's just vague.
13 I didn't ask about the 13 Now, what I meant by that was your
14 contractor's responsibility. 14 question was a very general one, and
15 MR. TREEBY: 15 you asked whether -- let me find the
16 I'm going to stand with my 16 question again --
17 objection. Thank you. 17 MR. BRUNO:
18 MR. BRUNO: 18 Okay.
19 That's fine. You know what, 19 MR. TREEBY:
20 though? I'm going to try to 20 -- there was usually a project
21 respond -- 21 manager assigned to a particular
22 MR. TREEBY: 22 construction project.
23 It's unclear to me. If it's not 23 MR. BRUNO:
24 unclear to you, then proceed. 24 Yes. That was the question.
25 MR. BRUNO: 25 MR. TREEBY:

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Page 22 Page 24
1 That could be asking about 1 the work of a quality assurance representative?
2 whether the Corps of Engineers, who he 2 A. Yes.
3 was working for, and you're apparently 3 Q. All right. Is there a description of
4 asking for, had a project manager 4 that training on either Exhibit 3 or Exhibit 4?
5 assigned to a particular project, it 5 A. There's a description on Exhibit 3,
6 could be talking about whether the 6 Page 1 of 4, the middle of the page,
7 contractor doing the project had a 7 professional development.
8 project manager. I was not clear 8 Q. All right. I see that. And right
9 which it was; therefore, I objected to 9 underneath, sure enough, I see United States
10 the form of the question. 10 Army Corps of Engineers, Huntsville, Alabama,
11 MR. BRUNO: 11 and then there are a series of -- well, why
12 And that helps me, because now 12 don't you tell me exactly what those words
13 what I'm going to do, Mr. Treeby, is 13 describe.
14 I'm going to turn to the witness and 14 Are those courses or -- you know, for
15 I'm going to ask him whether or not 15 example, Dredging, semicolon, Contract
16 there was a person at the Corps -- 16 Administration, February, '93, twenty four
17 okay -- not working for the 17 hours. What are you describing there?
18 contractor, who was the project 18 A. I'm describing the dredging contract
19 manager. 19 administration course administered by
20 EXAMINATION BY MR. BRUNO: 20 Huntsville, Alabama, for quality assurance
21 Q. And do you recall whether that was the 21 representatives, project engineers and project
22 way the Corps did its business in connection 22 managers.
23 with Corps construction projects? 23 Each -- the next one is Concrete
24 A. When I was employed by the Corps of 24 Quality Verification, October, '92. That was
25 Engineers, that is the way the Corps did the 25 specifically on concrete. Inspection of
Page 23 Page 25
1 business. There was a project manager that was 1 concrete, makeup of concrete, um -- testing of
2 not just responsible but maybe for one project, 2 concrete, from the Corps' aspect.
3 but maybe two or three. 3 Construction Quality Management,
4 EXAMINATION BY MR. BRUNO: 4 that's more managing relationships with
5 Q. I see. 5 contractors when administering projects.
6 A. As a project manager. 6 General Construction Verification is,
7 Q. Okay. Fine. I'm glad we cleared that 7 um -- training on the use of the government
8 up. 8 documents, in which situations you use them,
9 So, um -- where was your job in the 9 how you use them, the reference materials.
10 structure of that branch? 10 Q. Okay.
11 A. If I can explain as far as layers, 11 A. Soils Quality Verification, strictly
12 there was a project manager over particular 12 dealing with soils. Soil is anything smaller
13 projects, but then there was the area office 13 than rocks.
14 which had project engineers assigned to a 14 Q. Okay. Thank you. Now, were these
15 particular project. I myself was a quality 15 courses courses that you were required to take
16 assurance rep, reported to the project 16 as a condition of your employment?
17 engineer, who in turn reported to project 17 A. Yes.
18 managers. 18 Q. Okay. And when it says 40 hours, does
19 Q. Okay. Great. That's very helpful. 19 that reflect 40 classroom hours or lecture
20 Thank you. 20 hours?
21 Did you work as a quality assurance 21 A. Lecture hours, yes.
22 representative for the entire five years? 22 Q. Lecture hours, okay. All right. Now,
23 A. Yes. 23 let me -- you've been kind enough to produce in
24 Q. Okay. Now, did you receive any 24 response to a subpoena issued by the Washington
25 training by the Corps in order to help you do 25 Group International some documents, and in this

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1 stack of documents I came across a document 1 Q. Forgive me for interrupting you, but
2 which I think is in this stack right here. 2 while we're on Mr. Allen, let me ask you just a
3 (Indicating.) And mine is entitled Instructor 3 few questions about him in particular that may
4 Listing. 4 help us a little bit.
5 A. Yes. 5 Do you know what Mr. Allen 's job was
6 Q. All right. Would you pleas, for the 6 at that time?
7 record, identify this document. What is it? 7 A. That I do not know.
8 A. This document, and the following 8 Q. Okay. Now, do you see here under his
9 pages, is an excerpt from the soils quality 9 name it says, United States Army Engineering
10 verification course back in December, '90. 10 District, New Orleans? That refers to the
11 The earthwork quality verification 11 district office?
12 training course was taught in Huntsville, 12 A. That's the New Orleans District
13 Alabama, and the list there is the list of 13 office.
14 instructors at the course -- the first page. 14 Q. All right. Now, below that it says
15 Q. I understand. All right. So first of 15 engineering division, engineering section.
16 all, can I assume that this document, which by 16 Do you know what that means?
17 the way I'm marking for the record as Exhibit 17 A. Yes. The engineering division is the
18 Number 5, was given to you at the that you took 18 other division I mentioned to you.
19 the course? 19 Q. Okay. In other words, we had your
20 (Exhibit 5 was marked for 20 project division --
21 identification and is attached hereto.) 21 A. Construction division.
22 A. Yes. 22 Q. -- construction division, then you had
23 EXAMINATION BY MR. BRUNO: 23 your engineering division.
24 Q. All right. Was it part of the 24 A. Yes.
25 training materials that you were given? 25 Q. Okay. And then do I gather that
Page 27 Page 29
1 A. Yes. 1 there's a levee section within the engineering
2 Q. All right. Now, do you know, as you 2 division?
3 sit here today, which United States Corps of 3 A. Yes.
4 Engineers employees employed at the New Orleans 4 Q. Okay. Thank you so much.
5 District office during the period of time 1988 5 Let's move to -- let's see. You
6 to 199 -- let me remember -- '93, were required 6 mentioned our next gentleman was Donald
7 as a condition of their employment to take this 7 Constantine.
8 course? 8 A. Yes.
9 A. Yes. 9 Q. Now, here it says attention:
10 Q. All right. Who at the district office 10 CELMN-OD-OM. Do you know what that means?
11 would be required to take this course? 11 A. Yes. That's a description of his
12 A. If I may start from Page 2 -- 12 division inside the Corps. Anybody that worked
13 Q. Yes, sir. 13 for the Corps at that time could tell where you
14 A. -- and Page 3, that's the list of 14 worked and what office you worked in. That's
15 students that went during the time I went. On 15 the Corps of Engineers lower Mississippi -- I'm
16 Page 3 you see my name Melvin McElwee, first 16 trying to remember the acronyms for that CELMN.
17 column, second name. 17 Q. Lower Mississippi New Orleans office,
18 Q. I see that. 18 I think.
19 A. And if you look and see New Orleans, 19 A. Yes.
20 Allen Richard, on Page 1 -- 20 Q. That's what we've heard. And then
21 Q. Yes, sir. 21 there's a dash and it says OD. What does that
22 A. -- from the New Orleans District, he 22 mean?
23 was required to take it. 23 A. That's another division in the Corps.
24 You see the fifth name down on the 24 Right now I can't tell you which one.
25 first column Donald Constantine -- 25 Q. It would be operations division?

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1 A. Operations division. That's correct. 1 Q. You've already told us that.
2 Q. All right. And again, I've been 2 NO. What is that?
3 looking at this a lot more than you have over 3 A. New Orleans area office.
4 the past days, so -- and then it says OM? Do 4 Q. All right. And Q?
5 you know what that -- would that be a -- 5 A. Quality assurance.
6 MR. TREEBY: 6 Q. There you go. All right.
7 I object to leading the witness. 7 If you'd follow with me down, I see
8 MR. BRUNO: 8 then -- is that Lois Pierre?
9 It's called discovery, 9 A. Yes.
10 Mr. Treeby. You can lead the witness 10 Q. Anything -- do you remember Lois
11 in discovery. 11 Pierre?
12 MR. TREEBY: 12 A. Vaguely I do. I don't remember his
13 Object to the form of the 13 job position.
14 question. Leading. 14 Q. Is there anything written here that
15 MR. BRUNO: 15 would assist us in understanding what he did?
16 Fine. 16 A. No, sir.
17 EXAMINATION BY MR. BRUNO: 17 Q. All right. Then we have Brian G.
18 Q. OM. Would you know what OM stands 18 Weidenbacher. Do you recall Mr. Weidenbacher?
19 for? 19 A. No, sir.
20 A. I don't know exactly, but I'm assuming 20 Q. All right. Anything under his name
21 something maintenance. 21 that would help us know what he did?
22 Q. Thank you. Now, let's see. Going on 22 A. No, sir.
23 down the line, moving to the second column, I 23 Q. Okay. All right. To the best of your
24 then come across a Leonard Hunter? 24 recollection, Mr. McElwee, would this be a
25 A. Yes. 25 complete list of all of the folks who took the
Page 31 Page 33
1 Q. Do you remember Mr. Hunter? 1 course with you?
2 A. I can't remember him right now, but if 2 A. Yes, sir.
3 I had a photo I'm going to say yes I know him. 3 Q. All right. Let's move to the next
4 Q. Do you remember what his job was? 4 page. You with me?
5 A. No, sir. 5 A. Yes, sir.
6 Q. All right. And is there anything, you 6 Q. You see the upper right-hand corner?
7 know, under his name that would help us 7 A. Yes, sir.
8 understand? 8 Q. Do you know what the significance, if
9 A. No, sir. 9 any, there is to -- and I'm guessing it's Roman
10 Q. Carol Johnson. Do you recall this 10 numerals, I could be wrong -- either VI or
11 person? 11 Roman Numeral VI.1.1?
12 A. No, sir. 12 A. To my recollection, that was the
13 Q. All right. And there is nothing -- or 13 number for the course. Because each course
14 is there anything under this person's name 14 that I mentioned to you had a number, and then
15 which would assist us in learning what -- I 15 they could identify the chapter and then the
16 don't know if that's a he or a she, but -- 16 page.
17 A. Yes. Second line. It says ED-FT, 17 Q. All right. Can I assume from that
18 engineering division. And I don't know if 18 answer that there is some book somewhere which
19 that's foundation testing, FT. 19 contains those pages?
20 Q. All right. Okay. And then if we 20 A. It's a binder.
21 would move to the next page, and I see you. 21 Q. It's a binder?
22 And let's just walk through you. You see the 22 A. Yes.
23 New Orleans District, you see then CD, which is 23 Q. All right. Okay. Do you recall the
24 the construction division. 24 name of the binder?
25 A. Construction division. 25 A. The name of the binder for this

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1 particular course was soils quality 1 it.
2 verification. 2 But would you just for the record tell
3 Q. Sorry. I didn't ask the question 3 us what were the circumstances of your writing
4 properly. These pages that I have in front of 4 Mr. Bob Bea and enclosing a copy of these
5 me which are described, again, either -- 5 papers?
6 MR. BRUNO: 6 A. To my recollection, this was
7 Does anybody know if that's a 7 immediately following the failure of the levees
8 Roman numeral or just a VI? 8 in New Orleans. And I had spoken and talked
9 A. It's a Roman numeral. 9 with Dr. Bea via E-mail and telephone, and in
10 EXAMINATION BY MR. BRUNO: 10 our conversations we identified, with the
11 Q. Roman numeral. Okay. That's fine. 11 uniqueness that we had as far as he used to
12 It says VI.1.1, and then it continues to 12 work with the Corps and I used to work with the
13 VI.1.12, and then I see after that there are a 13 Corps, and in the media there was a lot of
14 series of plates. 14 fluff I would call it, no one knew what
15 A. Yes. 15 happened in the area, and I considered it to be
16 Q. I just assumed, perhaps incorrectly, 16 foolishness. And I said, Dr. Bea, I mean, we
17 that these pages were all of the pages that 17 all are trained in this, here's the Corps
18 related to the course, soils quality 18 courses. How can somebody not know?
19 verification. 19 Q. Okay. All right. Why don't we go
20 A. Those are not all the pages. 20 ahead, just say that one more time loudly,
21 Q. Okay. All right. So you got a whole 21 because I didn't know if I even understood it.
22 binder full of paper -- 22 You said we something or other.
23 A. Yes. 23 A. Dr. Bea and I saw in our conversations
24 Q. -- for the course. 24 where we had some things in common. He worked
25 A. Yes. 25 for the Corps of Engineers, and I worked for
Page 35 Page 37
1 Q. All right. This is just one section 1 the Corps of Engineers. And during the time
2 of that whole binder. 2 frame after the storm, there was a bunch of
3 A. Yes. 3 fluff, I would call it, in the media when
4 Q. Okay. I understand now. 4 people were saying they didn't know why the
5 Do you still have the whole binder? 5 levees had failed.
6 A. Yes. 6 Q. Okay.
7 Q. Okay. May I ask, if you don't mind, 7 A. And I had mentioned to Dr. Bea, I
8 if we could make a copy of that whole binder? 8 mean, everybody that dealt with the Corps and
9 A. I will deliver it to IKON for you to 9 worked with the Corps was very familiar with
10 make a copy. 10 what happened. And as an example, I sent him
11 Q. That's fair enough. And then of 11 our training, a copy of what we've been trained
12 course everybody can obtain a copy from there. 12 on.
13 Now, let me ask you this: The context 13 Q. Okay. And do I gather that your
14 of these pages are that they are attached to a 14 selection of these pages which I have already
15 letter by yourself to Mr. Bob Bea. 15 marked as Exhibit Number 5 represent, in your
16 A. Yes. 16 mind, a portion of that training?
17 Q. Okay. The letter is dated Friday, 17 A. Yes.
18 October 14, 2005, and it says what it says. 18 Q. Is that correct?
19 A. Yes. 19 A. That's correct.
20 Q. I'm happy -- 20 Q. All right. Now, let's, if you don't
21 MR. BRUNO: 21 mind, look at Page VI.1.1. It's entitled
22 Anybody have any interest in 22 seepage and groundwater control.
23 attaching this? 23 A. Yes.
24 EXAMINATION BY MR. BRUNO: 24 Q. All right. Would you tell us, please,
25 Q. Okay. I don't have any need to attach 25 generally, what is seepage?

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1 A. Seepage is the flow of a fluid, water, 1 within the discussion of this paper?
2 whatever it may be, through a median [sic] I 2 A. Yes.
3 would call it, whether it's soil or whether 3 Q. All right.
4 it's filter cloth, fabric, whatever. 4 A. The foundation portion would.
5 Q. Right. 5 Q. The foundation part, the part of the
6 A. In this particular instance, the 6 structure that goes below the earth?
7 course was catered to explaining the history of 7 A. Yes.
8 seepage over time, since it's been documented. 8 Q. All right. Now, suppose one were
9 In fact, the first paragraph talks about Italy 9 asked to do excavation, but you're not really
10 and killing three thousand people. Um -- and 10 building anything, you're just removing stuff.
11 the course described methods of inspecting and 11 You see the distinction between the building
12 noticing seepage to determine whether or not 12 and the excavation?
13 there were potential problems. 13 A. Yes.
14 Q. Okay. All right. If I look at the 14 Q. I'm wondering if that would be, in
15 first sentence -- I'm going to read it to 15 your mind, considered an earthwork project?
16 you -- it says, perhaps no single feature of an 16 A. Yes.
17 earthwork project deserves as much attention 17 Q. And why is that?
18 during construction as the drainage system. 18 A. Because you're dealing with parts of
19 Could you explain that to me? 19 the earth that are smaller than a pebble.
20 A. When looking at a project, and you 20 Q. Okay. All right. Now, the next
21 determining what you're going to do with fluid 21 sentence says, however, since the drainage
22 flow, meaning rain, runoff or whatever, um -- 22 system generally controls a hidden force, the
23 attention needs to be placed on what are you 23 force of water seepage through soil, it's
24 going to do with the collection of water? If 24 importance is sometimes not fully appreciated.
25 it's in your backyard, how are you going to get 25 Okay, now, I just need you to help me
Page 39 Page 41
1 rid of it? Which ways are you going to get rid 1 understand, first of all, what's the hidden
2 of it? Are you going to dump it on your 2 force?
3 neighbor? Are you going to put something in 3 A. Hidden forces, to my recollection,
4 between you and your neighbor, a swale? Are 4 would be fluid forces below the surface that
5 you going to let it drain into a pipe and flow 5 travel to, um -- vacuum pockets. You know, it
6 out towards the street? Any project, civil 6 could be any open area, any open spot. Um --
7 project, you must take that under 7 it may start off as a trickle, and then
8 consideration, when you're -- 8 eventually eat it's way through and before you
9 Q. Okay. Now, you've used the words 9 know it it's a heavy flow.
10 civil project this morning already. What do 10 Q. Okay. All right. I'll have to
11 you mean by civil project? 11 confess to you I'm just a lawyer and I don't
12 A. Civil projects are projects dealing 12 really know a lot about engineering and things,
13 with streets, foundations, usually buildings, 13 but, so you're telling me that there's movement
14 close to the earth. You're going to deal with 14 of water under the earth. I mean, I know about
15 some material formed by the earth. 15 aquifers and things because you drill wells in
16 Q. Okay. All right. I also see the 16 order to get access to water that's below the
17 phrase earthwork project. What does that mean? 17 surface.
18 In your mind. 18 A. Yes.
19 A. In my mind, an earthwork project is a 19 Q. So are you describing the concept of
20 project dealing with soil. I'll say soil 20 the water that's below the surface and how it
21 anything smaller than a pebble. Sand and 21 moves through the soils?
22 below. 22 A. Yes.
23 Q. All right. So, if one were asked to 23 Q. Okay. I understand.
24 build something on top of the land, a house or, 24 A. Different from the aquifer.
25 I don't know, any structure, would that fall 25 Q. It's different?

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1 A. Yes. 1 Is there any other options for the
2 Q. How is it different? 2 water?
3 A. The aquifer is a stream where water 3 A. I guess I'm not understanding when you
4 may flow just in a sand layer throughout the 4 say options. Now, it can travel.
5 earth and travel all the time. 5 Q. That's what I mean.
6 Q. Uh-huh. 6 A. Yes.
7 A. It's constantly doing that. 7 Q. So there's a third option. It could
8 Q. Right. 8 move across the surface.
9 A. But outside of the aquifer, you have 9 MR. TREEBY:
10 water tables, traditionally in different areas, 10 Object to the form of the
11 that can produce their own aquifers if found in 11 question. Leading.
12 weaker pockets of soils. 12 EXAMINATION BY MR. BRUNO:
13 Q. All right. So obviously the rain 13 Q. Now, the next sentence says, and this
14 falls, it gets absorbed by the soils below, and 14 is really striking, these hidden forces can
15 it goes somewhere below the soil. 15 tear down a mountainside, as occurred in 1963
16 A. Yes. 16 at the Vaiont Reservoir, Italy, killing three
17 MR. TREEBY: 17 thousand persons; destroy earthen structures
18 Object to the form of the 18 such as the Baldwin Hills Reservoir in Los
19 question. Leading. 19 Angeles, California, where five lives were lost
20 MR. BRUNO: 20 in 1963 and $15 million property damage
21 Well, okay, fine. 21 resulted; or produce runway failures as
22 EXAMINATION BY MR. BRUNO: 22 occurred at the Cleveland, Ohio airport in 1967
23 Q. When the rain falls from the sky and 23 where three thousand feet of concrete runway
24 it hits the earth, where does it go? 24 pavement failed and broke up into basketball
25 A. The earth is composed of water, and 25 sized pieces due to inadequate subsurface
Page 43 Page 45
1 water doesn't ever change, it just goes -- it's 1 drainage. And just to complete it, it says,
2 the same amount all the time. It evaporates 2 many more examples could be cited but the
3 and then it rains, it gets soaked in the earth, 3 examples mentioned should clearly show the
4 it goes to the rivers and evaporates again, 4 devastating power of uncontrolled seepage of
5 comes back down again. Whatever we do in 5 water.
6 between then, it's the same amount of water. 6 Now, help me understand. I'm still
7 Q. Okay. So after the water from the sky 7 confused. What is this power of uncontrolled
8 hits the earth, where can it go? 8 seepage that's referenced in this paragraph?
9 A. It's going to go -- if it can 9 If you know.
10 penetrate a soil, it's going to go -- it's 10 A. The power is -- I'm going to talk
11 going to saturate the soil. 11 engineering now.
12 Q. Okay. 12 Q. That's fine.
13 A. Once it saturates the soil and heat is 13 A. If you don't understand, I'll try to
14 applied, then it will evaporate. The sun. 14 break it down.
15 Heat by the sun. 15 Q. That's fine.
16 Q. Okay. 16 A. In engineering we have different
17 A. It doesn't have to be any man-made 17 energies called kinetic, potential, and water
18 heat. It will begin to form what we consider 18 is in that category potential. It's sitting
19 to be fog, um -- humidity -- 19 there waiting to do something, go somewhere.
20 Q. Right. 20 You get enough of it, it's weight itself
21 A. -- and it goes back into the clouds. 21 creates an opportunity for some destruction if
22 Q. I understand. All right. So we've 22 something in front of it is not strong enough
23 discussed two options. One, the water that 23 to hold it. That is the power that they're
24 falls from the sky can turn into vapor, it can 24 talking about.
25 go below the soil. 25 Q. Okay. All right. Now, the next

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1 subparagraph says basic considerations, and 1 height or whatever, what happens to the
2 then they make a reference to a laboratory. 2 particles of the sand, the sand becomes fluid.
3 Did you guys go to a laboratory and 3 Q. I see.
4 watch some demonstrations? 4 A. And then given vibrations at that time
5 A. Yes. 5 that building would collapse. That happened in
6 Q. Okay. Do you remember what -- you 6 some part of the world at one time where some
7 know, what those demonstrations showed? 7 buildings --
8 A. Yes. We, um -- went to the Vicksburg, 8 Q. All right. So you mean just the fact
9 laboratory, that's one of the research centers 9 that the water went below the surface, moved
10 for the Corps of Engineers, and there was a 10 into an area where there was some sand and
11 mock model of the Mississippi River, and just 11 because the water charged the sand --
12 on that small scale showing the force of water 12 A. Yes.
13 traveling throughout the United States from the 13 Q. -- that it somehow had some impact on
14 north down to the south in New Orleans, and 14 the ability of the foundation to hold up the
15 just watching that small model and the amount 15 structure?
16 of currents developed in that model as the 16 A. It has a major impact.
17 water was traveling, we generally could take a 17 Q. Okay. All right.
18 multiplication factor and say, this is what's 18 A. Because the sand becomes fluid.
19 happening throughout the United States. 19 Q. I see. I see. All right. And then
20 Q. I see. Okay. Now, they also talk 20 on this page there are things called rate of
21 about a quicksand tank. 21 flow, coefficient of permeability, hydraulic
22 A. Yes. 22 gradient, and area. So when are all these
23 Q. Do you remember the quicksand tank? 23 things? What do those things relate to?
24 A. Yes. 24 A. Those are engineering calculations for
25 Q. What was that all about? 25 soils, and you can pretty much predict a
Page 47 Page 49
1 A. There was a model there that explained 1 soil 's behavior based on those characteristics
2 liquefaction. It showed sand sitting dry and a 2 listed.
3 building on top of it, and the Corps 3 Q. Okay. All right. And then let's see.
4 demonstrated if this sand is charged, we call 4 Let's just keep going here. If you look at the
5 it, water placed in it -- 5 next page, VI.1.3, we have -- in the last
6 Q. And I'm going to slow you down. Okay. 6 paragraph, it says, suppose that rather than
7 If the sand is charged. That means if you put 7 increasing the thickness of the sand an
8 water in the sand? 8 impervious clay blanket top stratum had been
9 A. Yes. 9 placed over the sand, in this case more weight
10 MR. TREEBY: 10 is provided to the sand and to a large extent
11 Objection to the form of the 11 the seepage is stopped. However, if the
12 question. Leading. 12 pressure beneath the clay exceeds submerged
13 MR. BRUNO: 13 weight of the clay, an uplift pressure will
14 I don't think that's leading, 14 occur. This --
15 Bill. 15 MR. TREEBY:
16 MR. TREEBY: 16 You didn't read it correctly.
17 Well, that's fine. I just have 17 MR. BRUNO:
18 to make my objection. 18 An uplift pressure will occur.
19 MR. BRUNO: 19 What did I miss?
20 I know you do. You'll get fired. 20 MR. TREEBY:
21 A. Charge means water being forced into 21 You're reading the word pressure
22 it. 22 when it says failure.
23 EXAMINATION BY MR. BRUNO: 23 A. No.
24 Q. All right. Okay. 24 MR. BRUNO:
25 A. Whether it's by hydraulic pressures, 25 No.

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1 MR. TREEBY: 1 pressures. If you take -- if I can describe a
2 Sorry. I must be at the wrong 2 fish tank and you fill it up with water in the
3 paragraph then. 3 inside, but if you cut a hole on the bottom of
4 MR. BRUNO: 4 that tank, the force of that water is very
5 No, you're at the wrong sentence. 5 strong and it's correlated to the depth of the
6 The next sentence is, this is commonly 6 water. Called head pressure.
7 noted as an uplift or heave failure. 7 Q. Right.
8 MR. MALONE: 8 A. When you cut that hole, that water
9 I read the same thing. It's an 9 wants to go out of that hole, and it will push
10 uplift failure. 10 the glass completely out of the way before you
11 MR. BRUNO: 11 finish cutting it. But as it's coming out it
12 Yeah. Well, I just read uplift 12 has to go somewhere. So if there's a clay
13 failure. 13 blanket next to the fish tank that you built,
14 MR. TREEBY: 14 and then you also have a sand bottom
15 You said pressure. 15 underneath, that sand layer is going to become
16 MR. BRUNO: 16 charged. When it becomes charged, at some
17 I'm sorry. If I said pressure, 17 point if that clay blanket is not heavy enough
18 it says failure. 18 due to its weight to hold the head pressure and
19 EXAMINATION BY MR. BRUNO: 19 stop the water from trying to go down, then
20 Q. What usually occurs in nature is that 20 you'll get what's called an upheave in the clay
21 the top stratum may be interspersed with root 21 blanket, and then the water will come out of
22 holes, shrinkage, cracks or other 22 the tank, go through the sand and come out
23 discontinuities which permit some of the sand 23 the --
24 to escape through channels in the top stratum. 24 Q. Okay. All right. Yeah. It's simple,
25 When seepage tends to localize instead of 25 I guess. The water is moving, and if the water
Page 51 Page 53
1 causing the entire top stratum to heave or 1 has nowhere to go it's going to go where there
2 become quick, active erosion of subsurface 2 is the least amount of pressure.
3 material occurs and concentration of seepage 3 A. That's correct.
4 occurs in localized channels. This is what 4 Q. So if there's something keeping it
5 causes sand boils. 5 from going below, something from keeping it
6 Okay. My goodness. What on earth is 6 from going left or right, the only place else
7 heave? 7 it could go is up.
8 A. Heave is the upward movement of a 8 A. That's correct.
9 material. 9 Q. And when it goes up, that's called a
10 Q. Okay. 10 heave.
11 A. And it doesn't necessarily have to 11 A. That's correct.
12 always be soil, it can be concrete. You walk 12 Q. I see. Okay. Thank you. Now we're
13 the streets of New Orleans and there's a force 13 talking about a sand boil. What on earth is a
14 pushing something up from the bottom -- 14 sand boil?
15 Q. Okay. 15 A. A sand boil is -- I explained earlier
16 A. -- that's heave. 16 the process of charging the sand and the sand
17 Q. All right. 17 becoming liquid. After it becomes liquid it
18 A. In this particular case it's heave of 18 begins to flow. Once the clay blanket is
19 a clay blanket. 19 upheaved and an opening is created, then the
20 Q. And that somehow or other this heave 20 water -- the sand comes out like it's boiling.
21 is related to seepage? 21 And not under any heat effect or anything, but
22 A. Yes. 22 it just comes running out on top of the clay
23 Q. All right. Can you help me understand 23 blanket, and then it continues the flow until
24 how the seepage causes the heave? 24 the sand that was underneath the clay blanket
25 A. Water has what's called head 25 is eroded, it's gone. It comes out. The sand

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1 comes out with it. With the water. 1 already have a problem, and if underseepage is
2 Q. All right. I got you. Now, let's go 2 a problem associated with levees, then I'm
3 to VI.1.5. It says here, in this first full 3 wondering if it is important for somebody who
4 paragraph, Dams are rarely if ever constructed 4 is interested in making sure the levee doesn't
5 on completely impervious material and 5 fall down to evaluate the potential for
6 consequently there is seepage beneath the 6 underseepage to damage a levee. Is that
7 structure as well as through it. The seepage 7 something that you learned from this course?
8 beneath the structure is commonly referred to 8 MR. TREEBY:
9 as underseepage. Since water seldom stands 9 Object to the form of the
10 behind a levee a sufficient length of time for 10 question. I'll accept your objection.
11 seepage to occur through the embankment, 11 A. That is something I learned from the
12 underseepage is the primary problem associated 12 course.
13 with levels. 13 EXAMINATION BY MR. BRUNO:
14 Okay. Explain that to me, please. 14 Q. Uh-huh.
15 Why is underseepage the primary problem 15 A. That it was very important to
16 associated with levees? 16 understand any impact of work associated with
17 A. Why? Because levees are man-made 17 levees.
18 structures constructed of impervious materials, 18 Q. Why is that, Mr. McElwee?
19 meaning clay-like, where water doesn't 19 A. Levees were constructed for safety
20 penetrate it very easily. The construction of 20 reasons, to protect something on another side
21 the levee is controlled. It's compacted. It's 21 of it, whichever side it may be on --
22 put in place. But anything below that, if you 22 Q. Right.
23 don't go down deep enough, is existing 23 A. -- from water.
24 material, uncontrolled. So if you're not 24 Q. Right.
25 taking and building a levee on another type of 25 A. And if you're doing any work relative
Page 55 Page 57
1 impervious material, you'll begin to have some 1 to that levee that's impacting that levee, you
2 problems like in the fish the tank, you are 2 increase the risk of damage to property and to
3 still got that little opening that that water 3 lives. So at all times, the Corps would stress
4 can travel through. 4 to its quality assurance representatives,
5 Q. I see. Did you know before you took 5 inspectors, and project engineers, to monitor
6 the course that underseepage was the primary 6 things of those sorts when you're on a
7 problem associated with levees? 7 construction project.
8 A. Before I took the course, no. 8 Q. Okay. All right. Now, things of
9 Q. Okay. Well, I mean, you know, gosh, 9 those sorts -- now, first of all, I mean, let
10 it sounds -- this is something you can't see 10 me just -- I'm just curious, because I'm a
11 with your eyes, right? 11 contractor now. Okay? And I've been asked to
12 MR. TREEBY: 12 dig a hole, not on the levee, not even, you
13 Objection to the form of the 13 know, within ten feet of the levee or fifteen
14 question. Leading. 14 feet of the levee, I'm digging this hole
15 EXAMINATION BY MR. BRUNO: 15 200 feet from the levee. Okay? Now, how am I
16 Q. Is this something one can see with 16 supposed to know, if I'm the contractor, that
17 your eyes, that is, the movement of the water 17 my hole digging may or may not have some impact
18 under the earth? 18 on this levee?
19 A. Not through the earth, no. You can't 19 A. As a contractor, how are you supposed
20 see it. However, once it becomes a problem 20 to know?
21 you'll see residuals on the other side. 21 Q. Yeah. How do I know?
22 Q. Well, now, I could be crazy here, God 22 A. There's various ways that you would
23 forbid, I don't want to be accused of leading 23 know, because as a contractor, you're going to
24 you, but it seems to me that if, A, you can't 24 have at least some data given to you by the
25 see the underseepage under the ground until you 25 Corps of Engineers in the bid solicitation

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1 documents. If you don't have that information, 1 proposed work and the levee or flood control
2 the Corps is going to give you some information 2 project?
3 to contact someone where you can find out 3 A. If I can make clear, when I said most
4 whatever you need to know prior to doing work 4 people don't know, I'm speaking of personnel
5 on a -- on a Corps of Engineers project in the 5 that are not in the craft of engineering and
6 New Orleans area district. 6 construction. But someone that's in the craft
7 Q. Okay. Well, would you agree with me 7 of engineering and construction, seepage
8 that the ordinary guy on the street, okay, who 8 becomes a problem before they begin to do
9 would maybe be, you know, engaged in -- he digs 9 construction. That's one of the things they
10 holes in his backyard or, you know, on his 10 have to consider. You must consider it.
11 farm, that this business of underseepage as it 11 It's -- in the planning process, if the Corps
12 relates to the potential for harm to a levee, 12 issues a contractor a set of documents, the
13 that's not information that most folks have. 13 Corps gives them information in the documents,
14 MR. TREEBY: 14 if it's not in the documents they're going to
15 Objection. Leading. 15 tell you where to go to get that information
16 EXAMINATION BY MR. BRUNO: 16 for your particular job, you can ask all the
17 Q. Would you agree with me on that? 17 questions you want --
18 MR. TREEBY: 18 Q. Okay.
19 Objection. Leading. 19 A. -- get all the clarification you want
20 MR. BRUNO: 20 prior to you beginning your construction
21 It's noted and it's not leading. 21 process. If you are doing work next to a
22 A. I would agree with you that, no, most 22 levee -- I'm going to speak for the New Orleans
23 people don't have that information, and most 23 area because that's where I'm born and raised
24 people don't look for that information because 24 and worked -- it's general knowledge for most
25 they don't have the knowledge to look for that 25 contractors that work in that area, the
Page 59 Page 61
1 information. 1 importance of understanding the soils and your
2 EXAMINATION BY MR. BRUNO: 2 impacts.
3 Q. All right. So -- well, if that's 3 Q. Uh-huh.
4 true, I mean -- so I guess I'm still a little 4 A. I don't know many contractors that
5 confused, because I'm trying to understand, 5 don't know the impact of working next to a
6 then, if most people don't have the knowledge, 6 levee.
7 and you are asked by the Corps to do some work, 7 Q. Okay. All right.
8 you know, around a levee, and again, I don't 8 A. And I definitely don't know any
9 know if it's 100 feet or 200 feet or 300 feet 9 engineer that doesn't know, because the
10 or 500 feet -- let me ask you this question: 10 engineers are trained in that.
11 How close to a levee -- how close does the work 11 Q. All right. So I guess someone who's
12 that's contemplated have any potential impact 12 going to be asked to do this work, because
13 on this seepage business, based upon the 13 they've been asked to do the work in the first
14 training that you received at the Corps? 14 instance, that is, they're a contractor or
15 MR. LEVINE: 15 engineer, when they get the knowledge that
16 Objection. Vague. 16 there is a levee somewhere in the vicinity, you
17 A. I didn't quite understand your 17 would expect, based upon what you've just told
18 question. 18 me, that they would at least make the
19 EXAMINATION BY MR. BRUNO: 19 intellectual inquiry about whether or not that
20 Q. Okay. What I'm trying to get at is, 20 may have some impact on their work.
21 we've got a contractor that's been asked to do 21 Is that what you said?
22 some work. Okay? And so I guess the first 22 MR. TREEBY:
23 thing I'm sort of curious about is, at what 23 Objection. Leading.
24 point does the underseepage issue become an 24 MR. BRUNO:
25 issue relative to the distance between the 25 No, it's not.

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1 MR. TREEBY: 1 No. On the contrary, Bill, you
2 Is that what you're saying, and 2 know as well as I do what you're
3 you put about so two sentences of long 3 doing, and it's okay.
4 information. If that's not leading 4 MR. TREEBY:
5 there isn't a leading question. 5 Okay.
6 MR. BRUNO: 6 MR. BRUNO:
7 And if that's leading there's no 7 Just do it. But for me to recap
8 such thing as a non leading question, 8 what the witness said and ask him if I
9 because all I'm doing is indicating 9 have a correct understanding is not
10 what he's already put on the record. 10 leading because the evidence is
11 MR. TREEBY: 11 already on the record and I'm simply
12 We disagree. 12 wanting to make certain that I
13 MR. BRUNO: 13 understand what he's saying. That is
14 We will disagree on everything. 14 not leading.
15 MR. TREEBY: 15 EXAMINATION BY MR. BRUNO:
16 I doubt it. 16 Q. And to satisfy Mr. Treeby, why don't
17 MR. BRUNO: 17 you just tell us, then, what is, in your mind,
18 I know we will. Okay? 18 based upon the course that you took, the
19 Particularly now -- 19 process that would ordinarily be undertaken by
20 MR. TREEBY: 20 an engineer or by a contractor who is
21 Typical hyperbole. 21 contemplating doing some work around a levee.
22 MR. BRUNO: 22 And I'm just going to ask you to define what
23 It's typical that, you know, you 23 around means. Give it up.
24 would say things like leading and 24 A. What's to be anticipated by a
25 technical objections when you don't 25 contractor or an engineer when constructing
Page 63 Page 65
1 loke what you're hearing, instead of 1 work around a levee would be the impact of the
2 getting to the subject of the matter 2 work on the levee, not the impact of the levee
3 which is what the witness has to say. 3 on the work. The levee is there. It's a
4 MR. TREEBY: 4 structure for a particular purpose. It's
5 I would rather here this witness 5 almost like a building. If we're going to dig
6 testify instead of you, Mr. Bruno. 6 a hole next to the building we have to consider
7 MR. BRUNO: 7 digging this big old hole next to the building,
8 I think we've been hearing the 8 what impacts -- what's going to happen to the
9 witness testify. You just don't like 9 building, is it going to stay intact? Is it
10 what he has to say, which is 10 going to stand? Is the levee going to stay
11 unfortunate for you. 11 intact? Will the levee stand? There are --
12 MR. TREEBY: 12 varied and many degrees of assessments, we call
13 I haven't objected to the 13 them, that a contractor or an engineer would
14 witness, I've objected to your leading 14 take into consideration when getting ready to
15 questions, and I will because I have 15 perform any works of this nature.
16 to protect the record. If you want 16 It's almost -- and I'm going to kind
17 to -- if you want to hold off leading 17 of try to make a parallelism here. It's almost
18 objections until trial, if you want 18 like being a lawyer. I'm not a lawyer. But if
19 to -- 19 I'm going to take on that task I need to be
20 MR. BRUNO: 20 prepared and trained to. Such with the
21 I'm not -- 21 contractor and engineer. If you're going to
22 MR. TREEBY: 22 take on the task of working around structures,
23 I'll be happy not the make the 23 you need to have the knowledge of it. If you
24 objection. 24 don't, you don't need to be in that business.
25 MR. BRUNO: 25 It is -- an engineer and a contractor

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1 has duties and responsibilities that are in all 1 Q. Why yes. I see that.
2 courses, whether it's the Corps of Engineers' 2 A. -- okay, that sand stratum underneath
3 or whether it's college courses, of 3 the impervious material, the clay, which is
4 responsibilities to the public. And to say 4 hash marked diagonally --
5 don't worry about it, I'm not going to look 5 Q. Yes.
6 into, or it doesn't matter because that 6 A. -- it has a normal at charge of flow
7 structure is not a part of my job is a total 7 through it. Water is going to go through it.
8 derelict of your obligations to the public. 8 There's no problem there. In fact, if water
9 Public safety is number one. For any 9 stayed at that level you wouldn't need a levee
10 contractor -- should be. If it's not, he 10 because it's just doing its normal thing,
11 doesn't need to be in that business. Or any 11 traveling through the earth.
12 engineer. And, um -- when you're taking on 12 Q. Okay.
13 that type of work, if you don't know what 13 A. The problem comes in when you have
14 you're doing you need to hire someone that 14 extra water brought in by whatever source to
15 knows what they're doing. 15 raise the level of water. And when you raise
16 Q. All right. 16 that level of water, we go back to talking
17 (Brief recess.) 17 about that head pressure, the weight of it
18 EXAMINATION BY MR. BRUNO: 18 acting downward, that's when the problem comes
19 Q. All right. If we may, I would like to 19 in. If you have a levee next to it which is
20 just continue down the same page because I'm 20 construct here, you don't have just this water
21 curious about this. It says, Plate 3A shows 21 flowing in, you got the flood stage water which
22 how underseepage can occur beneath a levee 22 is going down through this opening --
23 system. At the normal river stage the water 23 Q. I see.
24 table is below the relatively impervious top 24 A. -- creating more pressure. Now you
25 stratum and no danger exists. And then it 25 got pressure underneath that system --
Page 67 Page 69
1 says, during flood stage, however, seepage 1 Q. Okay.
2 entering the substratum through the bed of the 2 A. -- and it's going to go through its
3 river, riverside borrow pits or any other 3 weakest point. And it will create -- eat up
4 opening in the top stratum creates an Artesian 4 this layer and create a sand boil. There's a
5 head in the substratum under and landward of 5 figure of a sand boil on the bottom.
6 the levee. The term Artisian simply means that 6 Q. That B picture is a --
7 the water in the sand is under pressure. For 7 A. Yes.
8 example, if a pipe or piezometer were placed 8 Q. That little mound looking thing.
9 through the top stratum into the substratum 9 A. That mound thing.
10 shown in Plate 3A, the water level in the pipe 10 Q. That's a sand boil.
11 would rise to the elevation of the dashed line, 11 A. That's a sand boil.
12 piezometric head. The height of this column of 12 Q. I see. All right.
13 water above the substratum is the Artesian 13 A. Water is going to come out of that and
14 head. 14 continue to flow. Now, that's a pretty looking
15 Now, do we have this Plate 3A in here? 15 sand boil but they don't always look nice and
16 A. Yes, sir. That's it. 16 neat like that. In fact, if you see some
17 Q. Okay. Here we go to Plate 3A. Now, I 17 around here they'll never look nice and neat
18 guess the thing that first confuses me is what 18 like this, it will just be sand rolled out --
19 is the difference between the potential for 19 Q. I see.
20 damage when there is no flood stage versus when 20 A. -- in the area where it created the
21 there is flood stage? Help us understand that. 21 boil.
22 A. Looking at Plate 3, Figure A, the top 22 Q. So we're looking at A, and the water
23 page, if you see where they say normal river 23 is at its regular stage. So you're telling us
24 stage, where this arrow is pointing at the 24 that -- I think, tell me if I'm wrong -- in the
25 level of water -- 25 normal stage of the river you're going to have

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1 water in that sand. 1 Q. I see.
2 A. Yes. 2 A. And ship those boulders somewhere
3 Q. Okay. All right. But when you have a 3 else. Still a borrow source.
4 flood stage, you obviously have more water. 4 Q. Right.
5 Right? 5 A. But you can collect sand from a borrow
6 A. You have more water, and the 6 source and ship it somewhere else for cement,
7 difference in measurement in feet between this 7 to manufacture cement. Then you can collect
8 normal stage and that flood stage is the extra 8 the clay material, which I've learned with the
9 added head pressure, we call it. 9 Corps in the Bonne Carre Spillway at that time
10 Q. Okay. Now, you see how the arrows are 10 was the sole source for impervious material,
11 going from left to right? 11 and they restricted it to the Corps' use only,
12 A. Yes, sir. 12 and that's the material we were watching build
13 Q. Why is that? Why aren't they going 13 the levees with.
14 the other way? 14 Q. Okay.
15 A. Well, because the pressure of any 15 A. And the Corps would allow contractors
16 river is higher than the surfaces around it, so 16 to go to designated areas in the Bonne Carre
17 the water wants the flow from the river, not 17 Spillway or any other source. You know, if the
18 towards the river. 18 contractor had a connection to some land
19 Q. I see. 19 somewhere that he could get the same type of
20 A. Only in rain stages when it flows off 20 material to be used in a levee, they allowed
21 of hills you'll see it coming towards the river 21 him to go get that material and bring it in, so
22 on the top. 22 to truck as far as sometime 25, 30 miles away.
23 Q. Got you. 23 Now I think it's further than that because
24 A. But anything at the surface of the 24 there's a demand for it.
25 river and below wants to flow outward. 25 Q. All right. So am I correct in
Page 71 Page 73
1 Q. Okay. 1 assuming, then, that a borrow pit is something
2 A. Just like taking some water, pouring 2 that man creates?
3 it here, and if a bowl didn't catch it it's 3 A. Definitely. Well, creates as in for
4 going to go out on the table. 4 his use. But it's originally there by nature.
5 Q. All right. Now, let me ask you this: 5 Q. All right. The stuff is there.
6 First of all, did you know what a borrow pit 6 A. Yes.
7 was before you worked for the Corps? 7 Q. But it becomes a pit because man takes
8 A. I had an idea only because my dad and 8 it out of the ground, and when you removed
9 several of his friends was in construction, 9 stuff from the ground you have a hole there.
10 truck hauling out of Bonne Carre Spillway. I 10 A. You have a hole there, that's correct.
11 knew there was a borrow source there. 11 Q. All right. So is a borrow pit a hole?
12 Q. Did the Corps teach you what a borrow 12 A. Well, no, you done used it at that
13 pit was? 13 point. The borrow is what you've taken out of
14 A. They taught me the in-depth study of 14 it.
15 what a borrow pit was. 15 Q. Oh, I see. The borrow. I'm with you.
16 Q. May I learn then what you learned from 16 The borrow is the word that you use to describe
17 Corps about what a borrow pit was? 17 the material that you actually remove and use.
18 A. Yes. I learned to classify the types 18 A. That's correct.
19 of materials in a borrow source. 19 Q. The borrow pit is what's left after
20 Q. What is it? 20 you take it out.
21 A. A borrow source is anywhere you 21 A. That's correct.
22 collect material from one place to transport it 22 Q. So that's a hole.
23 to another one. I say collect material because 23 A. That's a hole.
24 that material varies. You can collect from a 24 Q. Okay. I'm with you.
25 rock quarry which is a borrow source. 25 A. Well, can I clarify?

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1 Q. Yes, of course. 1 Q. -- from going down below.
2 A. The pit is the area where you're doing 2 A. That's correct.
3 this. 3 Q. Obviously so if you take the clay
4 Q. Uh-huh. Oh. So the pit is a 4 away, you dig a hole, now the water's got a way
5 location. 5 to get in --
6 A. That's correct. 6 A. Travel. A way to get in.
7 Q. All right. Is there a word to 7 Q. -- to the sand.
8 describe the hole that's created when one 8 MR. TREEBY:
9 removes the borrow from the borrow pit? 9 Objection. Form of the question.
10 A. There's several words. 10 EXAMINATION BY MR. BRUNO:
11 Q. What are those? 11 Q. I want to make sure I understand this.
12 A. Number one, a void. 12 And we'll note his coming objection to leading,
13 Q. A void? 13 but is not.
14 A. Because there's nothing left. 14 When you remove the clay, you now have
15 Q. Got you. 15 an opening through which the water can pass to
16 A. A hole. 16 the substratum below; is that correct?
17 Q. Okay. 17 MR. TREEBY:
18 A. A pond, because after it gets 18 Objection. Leading.
19 recharged with water, then you can go fish in 19 EXAMINATION BY MR. BRUNO:
20 it. 20 Q. Is that what you said?
21 Q. Got you. Okay. 21 A. That's correct.
22 A. Um -- and then there are other various 22 Q. That's what you said.
23 terminologies I just can't think of. 23 MR. TREEBY:
24 Q. Okay. I understand. 24 Objection. Leading.
25 Now, why, if you know, do you see on 25 A. That's correct.
Page 75 Page 77
1 this Plate 3A, why is borrow pit even shown? 1 EXAMINATION BY MR. BRUNO:
2 Is it relevant at all to this whole business of 2 Q. All right. Fine. All right. Now,
3 underseepage? 3 this whole course -- the intent of this course
4 A. Yes. 4 was to teach you about the issues related to
5 Q. Why? 5 underseepage, as you've told us. Now, so what
6 A. Because the Corps is trying to 6 I want to see if I can figure out is, what did
7 illustrate their particularity in where you're 7 this course teach you, if anything, about how
8 digging your borrow pits, and the proximity and 8 to deal with the borrow pit to prevent seepage
9 the effects of it, like I mentioned earlier 9 problems, if it did at all? I don't know,
10 assessments being made -- 10 maybe it didn't. But did you guys -- were you
11 Q. Right. 11 taught anything about that?
12 A. -- on what could happen if you digging 12 A. We were taught quite a bit about it.
13 too close to a levee, the undermining of that 13 In fact, while I was working with the Corps,
14 levee, the undermining of that structure. 14 um -- beginning at the New Orleans
15 They're illustrating that point there. What 15 international airport, coming around the
16 you're doing is adding the extra charge of 16 lakefront all the way to New Orleans, all of
17 water that potentially could happen because you 17 those levees I was involved in. Those levees
18 undermined that blanket right there. 18 were adjacent to houses. There were berms,
19 Q. Oh. Okay. I see. So that obviously 19 sort of, to stabilize the levees that would go
20 before they dug the hole to take the borrow 20 from the levee close to adjacent to some
21 from the borrow pit there was clay there. 21 backyards. The berms were constructed to add
22 A. That's correct. 22 additional weight to keep any excess pressures
23 Q. And the clay blocked the water from 23 from water or the levee material itself from
24 coming -- 24 counterbalancing and trying to, I guess have
25 A. Is that correct. 25 rotational under-failures towards the homes.

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1 As a quality assurance rep we 1 your inspection took some particular interest
2 monitored those things during the construction 2 in certain houses where you thought there may
3 and even beyond. I mean, the Corps has an 3 be a problem. And what I was trying to learn
4 annual inspection that they take the engineers 4 is, was there some distance from the flood
5 on to ride the levees. The reason they ride 5 control structure where you had interest in
6 those levees is to look for these type of 6 ascertaining whether or not there was the
7 things, see do they see any seepage or problems 7 potential for --
8 concerning underseepage. 8 MR. TREEBY:
9 Q. Yeah. 9 Object to the preamble of counsel
10 A. So, yeah, we learn quite a bit. I 10 trying to justify himself.
11 mean, always -- in fact, I became so accustomed 11 Go ahead. I thought you were
12 do doing it I would find myself when I would 12 finished. Excuse me.
13 just travel like from here to Baton Rouge if it 13 MR. BRUNO:
14 was a surface road I was on and it was a 14 Yeah. Just let me finish. Okay?
15 bright, sunny day and it hadn't rained in two 15 MR. TREEBY:
16 weeks and I saw water ponding next to a levee, 16 I'm sorry. Apologize.
17 I would point it out to my wife, we've got some 17 MR. BRUNO:
18 underseepage there. She thought I was crazy at 18 Now I forgot where I was.
19 the time. She say, what are you talking about? 19 A. If the question is, is there a
20 And I said, we got some underseepage, and it's 20 particular requirement --
21 probably minimum, but it's there. But we 21 MR. TREEBY:
22 watched this whenever the river stage would 22 Objection. Let's have a question
23 come up high, and then there was a potential 23 and an answer.
24 for more water to be dumped in the certain 24 EXAMINATION BY MR. BRUNO:
25 area. You know, so we learned quite a bit 25 Q. Go ahead. Ignore him -- the comments.
Page 79 Page 81
1 relative to this. 1 MR. TREEBY:
2 Q. All right. 2 Object to the responsiveness of
3 A. You know, that the Corps' -- at that 3 the answer, then.
4 time, to us, was our responsibility when 4 MR. BRUNO:
5 watching levees. I mean -- 5 Fine.
6 Q. Okay. How close were those houses, 6 A. There was no criteria for just looking
7 the ones to which you just made reference that 7 at how close or far a structure was away from
8 you had some concern about, to the flood 8 the levee to question the effects. You know,
9 control structure? 9 everything depended on design, how wide the
10 MR. LEVINE: 10 levee base was versus how narrow it was,
11 Objection. Vague as to location. 11 whether there was sheet piling and a concrete
12 Q. I was going to answer that way. It 12 wall on top and no levee at all. All of those
13 depends on where you were. You know, sometime 13 things vary. So, no, there's no --
14 it could be fifteen feet away and then it could 14 EXAMINATION BY MR. BRUNO:
15 be 65 and 70 feet away. It depends on -- 15 Q. Okay. All right.
16 there's a lot of engineering calculations that 16 A. -- particular measurement.
17 go into that -- 17 Q. What is the relevance of a sheet pile
18 EXAMINATION BY MR. BRUNO: 18 wall, if any, to this seepage issue?
19 Q. Right. 19 A. It's very relevant because it would
20 A. -- to tell you how close or how far 20 cut off flows of water at a particular depth.
21 you can be away from the structure, and what 21 Q. Okay.
22 you need to do in areas to supported that 22 A. In this case, if a sheet pile wall was
23 structure. So it varied. 23 placed inside the levee, then this water here
24 Q. Well, I'm -- in fairness to me, I 24 would have to travel further down --
25 thought that you said that you guys on doing 25 Q. I see.

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1 A. -- to go to the other side. 1 that tries to come back in your excavated area.
2 Q. So is it important to know how deep 2 A dewatering system, if you're going deep.
3 the sheet pile is if you're going to be doing 3 Q. Uh-huh. What's deep mean?
4 one of these engineering analyses? 4 A. Deep is 25 -- at least 20 feet or more
5 A. If you're going to do any type of 5 in depth.
6 construction work its important to know how 6 Q. Okay.
7 deep the sheet pile wall needs to be. 7 A. Adjacent to any stream bed or water
8 Q. All right. Now, what are the 8 table that's pretty high. And normally here in
9 precautions that should be taken if one is 9 New Orleans the water table is very high, so if
10 going to locate a borrow pit near a flood 10 you get anywhere below -- in sometimes in cases
11 control structure, if there are any precautions 11 less than fifteen feet you got to be careful.
12 that should be taken? What do you do? 12 If you're digging a grave, you got to be
13 A. There are several precautions that 13 careful. If you go too deep soil will start
14 must be taken, now -- or should be taken. Like 14 caving in. So, yeah, those are all
15 I said, must be because some -- I have seen 15 precautions.
16 contractors try to dig deep holes without any 16 Q. All right. Now, if -- am I -- again,
17 protection. But for the safety of your 17 looking at this Plate 3A, what they're showing
18 personnel and to keep the hole from falling in 18 here in the plate is a cut through a clay
19 on you, you need to have some type of 19 layer. Now, so if you cut through a clay layer
20 calculation relative to how you're going to 20 into the sand, is there anything, or any
21 retain the material that's outside of the area 21 precautions that needs to be taken to deal with
22 you're digging, to keep it from falling in on 22 that fact?
23 you, for one. 23 A. Yes. The same precautions that we're
24 Q. Okay. 24 talking about. When you dig this hole --
25 A. Um -- you need to be concerned with 25 they're not showing this in this illustration,
Page 83 Page 85
1 the adjacent area and flows. You know, if 1 but what are the pressures in the strata? Any
2 you're digging in an aquifer, if you're doing 2 contractor needs get -- A, if he doesn't know
3 digging next to a river channel, which way the 3 how to do it, get some engineer to get him some
4 water is going, what is it going to do at a 4 calculations on the underground pressures, such
5 particular time, to determine how deep your 5 that when you create this hole, and the water
6 sheet pile needs to be. 6 level is at this stage --
7 Q. Uh-huh. 7 Q. Uh-huh.
8 A. Um -- even when installing the sheet 8 A. -- what's going to stop that water
9 piling, you need to consider the structure. 9 from coming up on you while you're digging that
10 And if it's on sand, and let's say you're going 10 hole?
11 the vibrate the sheet piling in, what is the 11 Q. Okay. All right. Well, suppose
12 frequency of vibration on the sheets, is it 12 you're done. All right? You dug your hole and
13 going to disturb the sand layers beneath it to 13 you've removed from the hole whatever you've
14 cause any additional impact? Because while 14 been asked to remove from the hole, and you're
15 you're vibrating, that sand is moving, the 15 finished your work.
16 earth is moving, and if something is heavy on 16 Is there any particular precaution
17 one side it may cause change in condition. 17 that needs to be -- first of all, is there any
18 Q. Okay. 18 need to file the hole? Let's start with that.
19 A. You need to be concerned with uplift 19 Can you at least leave it open?
20 pressures of water underneath the sheets, 20 A. Not next to a levee, no.
21 because the water is going to tend to go deeper 21 Q. Why not?
22 down, and the deeper it goes that's more head 22 A. Because with that void, material
23 pressure, and it will try to come back in your 23 that's close around in the area, germane to the
24 excavated area. So you need to think about 24 area, is going to try to fill that void. And
25 what you're going to do to retain the water 25 it may be the material that's supporting your

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1 levee that's trying to fill that void. And 1 underseepage issue but it wouldn't -- there
2 when it's going over to file that void, then 2 would be no problem caused until the level of
3 you undermine the structure. 3 the channel or canal or reservoir, whatever it
4 Q. Okay. 4 is, got higher due to rain or hurricane or
5 A. So then you got a major concern. 5 flooding of some sort?
6 Q. All right. So is it then necessary to 6 MR. LEVINE:
7 fill the hole? 7 Objection. Vague, compound,
8 A. In many cases, most cases, it is. You 8 ambiguous.
9 fill it with some material. Whether it's the 9 A. You can know before it starts to rain
10 same material you took out or whether it's -- 10 and flood that you got problems.
11 in this case it would be two materials because 11 EXAMINATION BY MR. BRUNO:
12 you'd fill it with -- if you go into the sand 12 Q. You could know. I'm just saying --
13 layer you'll fill that with sand, but if you 13 A. You will know if there's -- depending
14 penetrate that impermeable layer which is clay, 14 on the water table. Like I say, when you're
15 you need to fill it with some clay or 15 digging -- in New Orleans, it's known not to
16 clay-based material -- 16 dig below six feet. And most people are buried
17 Q. I see. 17 above ground because the water table is so
18 A. -- to keep the water from trying to 18 high. So soon as begin to dig, you'll begin to
19 penetrate in the area or go up or down in that 19 see water and you'll have problems. And there's
20 area. You have to put something there. 20 is no storm around.
21 Q. All right. And is there any need for 21 Same thing with construction. If
22 compaction? 22 you're below the water table you're going to
23 A. If it's dry and you have sheet piling 23 begin to have problems. You're going to see
24 and you can come back with some clay and you 24 water penetrating coming in. And that's how
25 can compact it, it's perfectly good to do that. 25 outside of raining, flooding or whatever. If
Page 87 Page 89
1 But then there are cases when it may not be dry 1 you're in the batture, we call it, batture is
2 but you'd have to inject what we call bentonite 2 when the lever comes up high and it flows
3 with a trimey tool in the hole. 3 towards the levee, you know, that batture is
4 Q. Okay. Now, continuing, it says here 4 the area that stays dry on low river stage.
5 at the last sentence on Page VI.1.5, the amount 5 Q. Right.
6 of underseepage and uplift pressure that may 6 A. If you're in the batture and you start
7 develop landward of the levee or dam is known 7 to dig in the river you're probably going to
8 to be related to the river and reservoir 8 start seeing, at some point, some water. So
9 stages, location of seepage entrance, extent of 9 you'll see the problem. It doesn't have to be
10 thickness and imperviousness of the landside 10 associated with a flood.
11 top stratum, underground storage and geological 11 Q. Right. But my question was just the
12 features. 12 reverse. And that is, is the nature of what
13 MR. LEVINE: 13 you've been talking about all morning long,
14 Where are you reading from, Joe? 14 this seepage business, is it something that
15 MR. BRUNO: 15 wouldn't create damage until the water in the
16 I thought I said VI.1.5, carrying 16 canal got much higher due to either excessive
17 over to VI.1.6. You with me? 17 rainfall or a flooding scenario?
18 MR. LEVINE: 18 MR. LEVINE:
19 I think so. 19 Same objection.
20 EXAMINATION BY MR. BRUNO: 20 A. It will create damage before then. I
21 Q. All right. Now, is it possible that 21 mean, the Corps -- if I walk out of this room
22 you could have an underseepage issue and not 22 today and walk up close to a levee and start
23 know that you had an -- if you were not 23 digging a hole right next to that levee and
24 knowledgeable about all these underseepage 24 it's not even flooding out here, and if it
25 issues, okay? Is it possible you could have an 25 wasn't flood season, believe me, a lot of Corps

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1 employees would be out there to stop me. 1 A. Yes.
2 Because it's going to have some impacts on that 2 EXAMINATION BY MR. BRUNO:
3 levee without a flood stage. 3 Q. All right. Were you told by your
4 EXAMINATION BY MR. BRUNO: 4 instructor when you took the course what you're
5 Q. I know. But what I'm asking is, is it 5 supposed to do with this information that you
6 possible that you wouldn't see a sand boil 6 had been taught during this 40 hours of soil
7 until you got to a flood stage? 7 quality verification?
8 A. No, you may see -- you may -- 8 A. Yes.
9 Q. I know you may. I'm saying is it 9 Q. What were you told to do with this
10 possible that you wouldn't? 10 information?
11 A. It's possible you wouldn't if the 11 A. Um -- I can remember vividly one of
12 river stage is below your depth of digging. 12 the instructors said, now you all are
13 Q. Right. Okay. That's what I'm driving 13 responsible for observing situations and
14 at. 14 problems and finding -- contacting someone that
15 A. Yeah. 15 can find preventive measures to keep the public
16 Q. Okay. All right. Then the next 16 safe. If we see something, convey it to our
17 series of subparagraphs are, starting on VI.1.6 17 project engineers and/or any engineer in the
18 and continuing, cutoffs, riverside or upstream 18 Corps of Engineers so that any potential
19 blankets, relief wells, berms, drainage 19 problems could be acted upon to reduce risk.
20 blankets, drainage trenches, sublevees, seepage 20 Q. Okay. Now, I've realized I've marked
21 control related to structures such as retaining 21 this instructor document as 5, but it's got
22 walls, slabs, roadways, et cetera. 22 highlighting on it. I'm going to substitute a
23 What do all those things relate to? 23 clean copy. But for now I'll give that to you.
24 MR. TREEBY: 24 All right. Let's see.
25 Objection. Vague. 25 Did you want to add something?
Page 91 Page 93
1 EXAMINATION BY MR. BRUNO: 1 A. I wanted to mention, I have in my
2 Q. If you know, go ahead. Do you think 2 hands the verification course, the cover
3 my question is vague? 3 letter, and I wanted to know just, all that is
4 A. It relates to controlling the flow of 4 one exhibit?
5 water in an excavated area. 5 Q. No, no, no. I just made the exhibit
6 Q. All right. 6 the Instructor Listing, Earth Work Quality
7 A. All of those items relate to that. 7 Verification Training Course sponsored by -- by
8 Q. All right. 8 the way, I neglected to ask you, this --
9 A. Some of the things I've taught on 9 MR. TREEBY:
10 already. 10 Joe, he has one. Don't you want
11 Q. Right. So all those are just methods 11 to just use that one? He has one
12 that the Corps is suggesting can be employed to 12 that's not marked up.
13 deal with seepage, right? 13 MR. BRUNO:
14 A. Yes. 14 I might do that, Bill, but
15 Q. Okay. All right. Now, let's see. 15 frankly I don't like the way it's been
16 Then we have ground water control during 16 stapled. The pages are not even.
17 construction, and that is what it is, right? 17 EXAMINATION BY MR. BRUNO:
18 A. It is what it is. 18 Q. Take a look at the first three pages
19 Q. All right. And then do I gather that 19 where it says instructor listing.
20 ditches and sumps, well points, deep wells, 20 A. Yes, sir.
21 electroosmosis cutoffs, those are just ways 21 Q. And then it says, you know, the
22 that you can deal with ground water control 22 listing of the folks. Would that have been in
23 during construction? 23 the front of this binder?
24 MR. TREEBY: 24 A. Yes.
25 Objection. Leading. 25 Q. Okay. And then following this would

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1 have been the various parts of the binder that 1 MR. TREEBY:
2 you've kindly offered to send to the copy 2 Your definition of what I would
3 place? 3 cross-examine him on is unacceptable
4 A. Yes. 4 to me.
5 Q. Okay. I understand now. All right. 5 MR. BRUNO:
6 And you know, I guess what we'll do is we'll 6 And you know what? Your
7 mark that as Exhibit 6 and just attach it to 7 cross-examination would be generally
8 the deposition when we get it. 8 unacceptable to me, I can assure you.
9 MR. BRUNO: 9 So anyway, let's not play games.
10 The whole binder. We don't have 10 MR. TREEBY:
11 to attach it, but I'm going to mark it 11 All of us aren't prescient like
12 as 6 and it will be available for 12 you.
13 everybody to have copies of it, just 13 MR. BRUNO:
14 so we have a reference point. 14 You're pressing it, Bill.
15 (Exhibit 6 was marked for 15 MR. TREEBY:
16 identification and is attached hereto.) 16 Prescient I said.
17 MR. TREEBY: 17 MR. BRUNO:
18 With all due respect, Joe, I 18 Oh, prescient. I'm sorry. I
19 think that whatever is marked as an 19 didn't hear you. I'm deaf, too.
20 exhibit this witness ought to identify 20 EXAMINATION BY MR. BRUNO:
21 under oath as the entire binder, not 21 Q. All right, let's where we are. Now,
22 in the procedure you're utilizing. I 22 we're back to your CV. Let's kind of walk
23 have know objection to getting it -- 23 through.
24 EXAMINATION BY MR. BRUNO: 24 MR. LEVINE:
25 Q. Well, in the procedure I'm utilizing, 25 Which one, 3 or 4?
Page 95 Page 97
1 are you willing to swear to us under oath that 1 MR. BRUNO:
2 you are going to submit to the photocopy place 2 Well, they both refer to the same
3 a complete copy of what you have that you've 3 thing, but I'm looking at Number 3.
4 referred to as the course materials? 4 EXAMINATION BY MR. BRUNO:
5 A. So help me God. 5 Q. You left the Corps in '93. All right.
6 MR. TREEBY: 6 Why did you leave?
7 My objection is noted. 7 A. To, um -- I had began my own
8 MR. BRUNO: 8 construction firm at the time, and I couldn't
9 It sure is, Bill. 9 work for the Corps at the same time while
10 MR. TREEBY: 10 performing construction for other government
11 Because it's not here for us to 11 agencies.
12 cross-examine him on, obviously. It's 12 Q. Okay. All right. And once you left
13 just inappropriate. 13 the Corps, were you free to contract with the
14 MR. BRUNO: 14 Corps?
15 How would you cross-examine him 15 A. After a certain period, yes.
16 on completeness even if it was here, 16 Q. Do you remember the period of time?
17 Bill? I mean, that's ridiculous. 17 A. I'm guessing. I'm thinking it was
18 That's utterly ridiculous. 18 about two years or something to that effect.
19 MR. TREEBY: 19 Q. All right. That's fine. Now, you
20 Your definition -- 20 have on here a description of work with the
21 MR. BRUNO: 21 Louisiana Army National Guard.
22 Guy says, here it is, it's 22 A. Yes, sir.
23 complete. And you're going to say, 23 Q. It says from 1994 to 2004, you were an
24 is it complete? He's going to say, 24 engineering officer.
25 yes, it's complete. Whatever. 25 A. Yes, sir.

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1 Q. All right. What does an engineering 1 A. To explain the management side of
2 officer do? 2 experience.
3 A. Um -- the engineering officer in the 3 Q. Okay. All right. Looks to me like
4 National Guard acts as a project manager, plans 4 you're very generally describing what your
5 construction, studies processes and procedures 5 skills are. Is that right?
6 relative to implementing particular projects 6 A. That's correct.
7 that may be handed down by higher headquarters, 7 Q. Okay. Now --
8 planning men, material, equipment to perform 8 (Brief recess.)
9 the construction, looking at construction 9 EXAMINATION BY MR. BRUNO:
10 processes. 10 Q. Okay. Mr. McElwee, what I'd like to
11 Q. All right. Now, did you do work 11 talk about now is the work that McElwee
12 through McElwee Brothers during that same 12 Brothers did for the United States Army Corps
13 period of time? 13 of Engineers.
14 A. Yes. 14 A. Yes, sir.
15 Q. Okay. All right. Have you been 15 Q. In your résumé you reference a project
16 employed by anybody else that we haven't talked 16 that I'm going to generally refer to as the
17 about already? We talked about the Air Force, 17 Dwyer Road drainage pumping station
18 we talked about the United States Army Corps of 18 improvements project.
19 Engineers, we talked about the Louisiana Army 19 A. Yes, sir.
20 National Guard and we talked about McElwee 20 Q. And I'm going to just say Dwyer Road
21 Brothers. 21 for short if that's okay with you and everybody
22 A. I was briefly employed, I can't think 22 else in the room.
23 of the engineering firm, but there was a firm 23 A. That's fine.
24 that was doing some work for Entergy when they 24 Q. My first question, sir, is did McElwee
25 were doing mapping -- digital mapping of all 25 Brothers do any other work for the Corps in its
Page 99 Page 101
1 the utilities in Louisiana, Mississippi, 1 history; in other words, as you sit here today
2 Arkansas. 2 looking back, have you done anything else for
3 Q. Okay. 3 the Corps other than the Dwyer Road project?
4 A. I did that for a short period. I 4 A. Yes, sir.
5 can't remember the exact dates. But, um -- the 5 Q. Okay. Let's start with the earliest
6 firm also does work for one of the Mobil Oil 6 one, if you don't mind and give me the date,
7 companies, I can't think of the name of it 7 tell me what you did.
8 right now. 8 A. I can't remember the date.
9 Q. Now, Exhibit Number 4, what does this 9 Q. That's fair. Was it before Dwyer Road
10 describe? 10 or after?
11 A. It describes the management side of 11 A. It was before Dwyer Road.
12 the experience. Actually, in Exhibit 3 I did a 12 Q. Okay.
13 lot of performance work, field engineer on the 13 A. Out at the New Orleans District 's
14 ground. The Exhibit 4 is the management side. 14 parking lot, the parking lot extends over the
15 Q. Okay. 15 river batture, and there was some failure in
16 A. There were times when there were 16 some of the piling underneath the parking lot,
17 projects I didn't act as a field engineer on, 17 and we did some repairs to the piling along the
18 had superintendents working on, and while 18 river at that time.
19 working for McElwee Brothers I was strictly a 19 Q. That's on Leake Avenue?
20 construction manager, you know, doing the 20 A. That's on Leake Avenue.
21 submittals, doing the, um -- scheduling, 21 Q. Okay. Glad you fixed it, we park
22 coordinating with suppliers for equipment, 22 there all the time the last couple of weeks.
23 those type of things. That's from the office. 23 What other work did you do for the
24 Q. Okay. All right. What was the 24 Corps, if any?
25 purpose of Exhibit 4? 25 A. There was some building work done at

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1 Leake Avenue in one of the maintenance 1 as far as, you know, the levee structures, high
2 buildings, the new warehouse. 2 powered lines, gas lines, any potential
3 Q. Okay. And that's right up there on 3 underground stuff. I started doing
4 the left? 4 reconnaissance to see if I saw some visuals in
5 A. Right up there on the left -- as 5 the field. In fact, I take pre-bid photos. I
6 you're facing the Corps from Leake Avenue, it's 6 normally keep a packet of photos to show the
7 too the left. 7 job as it was before we ever bid the job.
8 Q. Okay. All right. Anything else? 8 Q. Uh-huh.
9 A. That was it. 9 A. And the reason for that is because a
10 Q. Okay. Good. Now we're going to -- 10 lot of times when you get into some work the
11 let's just talk about the Dwyer Road project. 11 owners come back and say, well, you should have
12 Okay? 12 known about this. And then I say, well, if
13 A. Yes, sir. 13 it's in the photo I should have known, but if
14 Q. All right. Now, first, how did you 14 it's not in the photo how would anybody have
15 come to know about an opportunity to bid on the 15 known? So we take, you know, take pre-bid
16 Dwyer Road project? 16 photos.
17 A. As a general contractor we get 17 We also look at the documents, comb
18 notifications from various outfits that do 18 the documents to see what we have. And the
19 publications on government work coming out, and 19 first thing that McElwee Brothers looks for
20 that particular project was in an advertisement 20 when it comes to subsurface work, meaning
21 that I used to subscribe to, a paper. 21 driving piles or excavating or anything of that
22 Q. Uh-huh. 22 sort, is to see if we got some soils borings.
23 A. And the various papers are the Dodge 23 Q. Soil?
24 Reports, the newspaper, Commerce Business Daily 24 A. Soil borings.
25 Journal. McElwee Brothers saw a job in there 25 Q. Borings. I'm sorry.
Page 103 Page 105
1 and we decided to go after it. 1 A. Yes. And because of my training with
2 Q. Okay. All right. Now, explain to me, 2 the Corps of Engineers, that's the things I
3 what is the process when one like yourself is 3 immediately look for in any job, you know, if
4 interested in making a bid; what is the first 4 I'm dealing with subsurface work.
5 thing that you do? 5 (Brief interruption.)
6 A. For the bid process itself? 6 EXAMINATION BY MR. BRUNO:
7 Q. Yes, sir. 7 Q. Nature and characteristics of the
8 A. The first thing you do is obtain the 8 what?
9 plans and specifications on the job from the 9 A. Soil material.
10 owner, and you check with the owner to assure 10 Q. There you go. Okay. All right. Now,
11 that if there are any amendments or addendums 11 let's just take a breather for a second.
12 prior to the bid date that you need to be 12 Why are you interested in structures,
13 notified of. You get all those documents in 13 high power lines, gas lines, the things that
14 your possession. As a prudent contractor -- 14 you can see with your eyes? Okay? What is the
15 and the reason I say prudent is because you do 15 relevance of those things to this bid?
16 have some contractors that just take those bid 16 A. The relevance is to compare what is
17 documents and whip up some prices real quick to 17 visually out there versus the plans. Because
18 bid on the job and move forward with it. But 18 there are times when the owner may not show a
19 as McElwee Brothers, what I normally do is 19 utility in a plan. That's going to impact your
20 either myself or some person that work for the 20 work. It's going to impact your labor, your
21 firm go out and do a reconnaissance on the job 21 equipment and your materials because you've got
22 as it is, prior to any construction. And in 22 to deal it with. It's going to impact your
23 this particular job I performed some 23 cost. You want to assure that the plans and
24 reconnaissance. I found out where the job was 24 specifications are fair for everybody, such
25 located, what structures were around on the job 25 that if I'm seeing it out here and another

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1 contractor who's not taken a visual of it, and 1 everything I've talked about this morning. I
2 don't see it in his plans, his price may be 2 utilized my training to plan for that job.
3 different, but yet he hadn't considered things 3 Q. Okay. Now, did the plans and
4 that should have been out there visually. 4 specifications that were provided to you by the
5 You went to develop a relationship 5 Corps and on which you were supposed to make
6 with the owner that you're being fair in your 6 this bid, did those plans and specifications
7 assessment and that maybe they should consider 7 identify the potential for harm to the flood
8 some things they didn't consider, that you're 8 control structure that was at the heart of the
9 looking at these plans thoroughly. 9 job?
10 Q. Uh-huh. 10 A. Partially.
11 A. And sometimes some amendments come out 11 MR. LEVINE:
12 afterwards to answer the questions for all the 12 Objection. Vague.
13 bidders that may have not done what you have 13 MR. BRUNO:
14 done as a prudent contractor, like McElwee 14 All right. I don't know what the
15 Brothers did. 15 vagueness is about, but maybe--
16 Q. Okay. 16 EXAMINATION BY MR. BRUNO:
17 A. To also give McElwee Brothers an 17 Q. Did I not -- tell me, first of all,
18 insight to its intended construction 18 whether or not a flood control structure was
19 procedures, labor, personnel, time frames, how 19 going to be involved in this proposed work.
20 long it will take to do the calculations 20 A. Yes.
21 relative to items of work on that particular 21 Q. All right. And where was -- was the
22 job. 22 proposed work going to be done on the batture?
23 Q. Okay. All right. Now, what was the 23 A. No. Well --
24 relevance of the soil borings to this proposed 24 Q. Part of it.
25 work? 25 A. Part of it.
Page 107 Page 109
1 A. On this particular job, the Dwyer Road 1 Q. Okay. All right. Now, let me ask you
2 job, the relevance was the job was located in 2 this: You said, I believe in answer to my
3 the batture of the Industrial Canal. It was so 3 question, partially. Would you explain your
4 close to the Industrial Canal that every level 4 answer. Why did you say partially?
5 over a period of time that may be high or low 5 A. In that particular set of plans and
6 on the canal was going to impact the work. And 6 specs, the Corps had a soils boring ledger in
7 it was going to impact, potentially, structures 7 the plans, and the Corps also had in the specs
8 close to the work. So McElwee Brothers wanted 8 a notification to the contractors if you wanted
9 to review, exploit, see and consider -- 9 to see any of the additional tests ran on the
10 Q. Okay. 10 materials relative to the job and soils,
11 A. -- all potential impacts -- 11 contact the Corps of Engineers. McElwee
12 Q. Okay. 12 Brothers contacted the Corps of Engineers
13 A. -- on that work. 13 because when I worked as a quality assurance
14 Q. Now, this whole morning you've told us 14 represent the Corps of Engineers had a
15 about what you learned at the course sponsored 15 laboratory at the district, and I knew what
16 by the geotechnical laboratory, Exhibit 5. 16 soils data and information they kept, and I
17 What I'm trying to figure out is, once 17 want to see that as a contractor for this
18 you found out where this job was going to be, 18 particular job. And so I inquired prior to bid
19 that is, that it was close to the Industrial 19 to see that information to complete my bid.
20 Canal or the Inner Harbor Navigation Canal and 20 Q. All right. First, why; why did you
21 that it regarded a floodwall, did you draw upon 21 want to see that information?
22 your training that you got from the Corps 22 A. McElwee Brothers wanted to see that
23 relative to the seepage issue that we've been 23 information because any excavation that was to
24 talking about all morning long? 24 be done on that particular job adjacent to the
25 A. Every aspect of that job related to 25 floodwall was important. I needed to see the

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1 soil makeup, the composition, where was the 1 clearly was leading.
2 sand layers? Were there any, um -- Artesian 2 MR. BRUNO:
3 springs below? Um -- then also, when we 3 Okay. Fine. Whatever. I know
4 performed the excavation in the batture, how 4 you don't like these answers and I'm
5 stable were the soils, you know? In that 5 not apologizing to you.
6 particular job, the Corps required that the 6 MR. TREEBY:
7 contractor get a licensed professional civil 7 I like the answers I just don't
8 engineer to design the temporary excavation, 8 like your testimony.
9 sheet piling, to submit his calculations and 9 MR. BRUNO:
10 everything, also, to design a dewatering system 10 I don't know -- I keep saying --
11 to keep the water out of the excavated area 11 EXAMINATION BY MR. BRUNO:
12 while work was being performed. And in order 12 Q. Mr. McElwee, am I testifying here or
13 to design the dewatering system, we needed to 13 are you testifying here?
14 see the composition of the materials, where, at 14 A. I thought I was testifying, answer the
15 what level and what depths, how deep these 15 questions.
16 straws I call them, or pieces of pipe, needed 16 MR. TREEBY:
17 to go to suck the water to keep it from 17 Objection.
18 creating sand boils in the excavated hole. 18 MR. BRUNO:
19 Q. Okay. Did the Corps give you the 19 I thought you were, too. Maybe I
20 information that you requested? 20 don't understand what's going on here
21 A. No. Not on that job. Initially. 21 but I just got to deal with it.
22 Q. Now, wait. When you said in that job, 22 MR. TREEBY:
23 at this point let's be clear for the record. 23 Now -- in preparing.
24 We are at the pre bid stage. 24 EXAMINATION BY MR. BRUNO:
25 A. Yes. 25 Q. Now, in preparing your bid, what
Page 111 Page 113
1 Q. And you're trying to draft a bid. 1 consideration, if any, did you give to
2 A. Yes. 2 precautions that you felt you needed to take in
3 Q. All right. So your testimony is that 3 order to address the potential for damage to
4 you asked for soil boring information as a part 4 the flood wall?
5 of your effort to write a bid, and they didn't 5 A. Would you please repeat that question?
6 give it to you. 6 Q. Okay. All right. And let me just
7 MR. TREEBY: 7 walk through it. You went to the site, you've
8 Objection. Leading. 8 told us, you saw that the site included a
9 EXAMINATION BY MR. BRUNO: 9 floodwall. Right?
10 Q. Is that what you said? 10 A. Yes.
11 A. That's what I said. 11 Q. All right. And you saw, from the
12 MR. TREEBY: 12 plans, that the plans called for the removal of
13 Objection. Leading. 13 part of this floodwall, right?
14 MR. BRUNO: 14 MR. TREEBY:
15 All right. Whatever. 15 Objection. Leading.
16 MR. TREEBY: 16 A. Yes. That plans illustrated that, and
17 The record says what he said, 17 I saw in the area during the pre-bid photos of
18 Mr. Bruno. 18 what needed to be demolished.
19 MR. BRUNO: 19 EXAMINATION BY MR. BRUNO:
20 Mr. Treeby, we have a difference 20 Q. Sure. I'm just trying to get some
21 of opinion as to whether or not it's 21 background so I can ask you the questions.
22 appropriate for a questioner to 22 A. Uh-huh.
23 clarify the answer for the questioner. 23 Q. And did you, at the time that you were
24 MR. TREEBY: 24 preparing the bid, have any understanding as to
25 If that was your purpose, then it 25 whether or not the proposed work may have an

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1 impact on the flood control structure that was 1 Q. All right. What I wanted to know is,
2 there? 2 did it indicate the type of engineer that you
3 A. Yes. 3 had contemplated, that is, civil versus
4 Q. And I think you've already said this, 4 geotechnical versus soils versus structure,
5 but did that work have the potential of 5 versus -- you know, was it -- or was it just
6 creating underseepage problems? 6 general?
7 A. Yes. 7 A. The Corps had a specification for the
8 Q. And did you, in preparing your bid, 8 specific type of engineer in the bid packet,
9 consider precautions that may have been 9 which was a civil engineer familiar with this
10 necessary, based upon that, these previous 10 area and construction within this area;
11 statements, to deal with the potential 11 however, McElwee Brothers, because of other
12 underseepage problems? 12 sections of those plans, needed an engineer
13 A. Yes. 13 that could be versatile in traffic management
14 Q. All right. Now, what exactly did you 14 and versatile on structures. We chose an
15 build into your bid to address those issues? 15 engineer that was with a firm and had the
16 A. There was engineering consultation 16 capabilities to cover all those areas.
17 cost that was incorporated to deal with those 17 Q. Okay. All right. Now, did the bid
18 issues, to have a design engineer available, 18 package include engineering services for soils
19 within 24 hours -- eight hours, really, that's 19 evaluations, or was that something that you
20 the concept we used -- to be available to 20 proposed as part of your proposal?
21 answer any questions and come out to deal with 21 A. Initially, McElwee Brothers for its
22 any issues on that particular job. 22 proposal saw this evaluation, did that on its
23 Q. Okay. Okay. I neglected to ask you, 23 own.
24 but what was the frame of time when you learned 24 Q. All right. The soils stuff came from
25 about the potential for contracting with the 25 McElwee, not from the government, right?
Page 115 Page 117
1 government and, you know, you actually 1 A. That's correct.
2 evaluated the bid and then submitted the bid, 2 Q. All right. At the end of the day, you
3 what was the approximate time frame? 3 guys got the contract, obviously?
4 A. On this particular job it actually was 4 A. Yes.
5 two years. Because the Corps brought it out 5 Q. All right. About when was the
6 initially as an I think an open competitive bid 6 contract signed?
7 project, then they took it off the market and 7 A. I believe the contract was signed
8 made it 8A. That's a program with the U.S. 8 around 2001, if I'm not mistaken.
9 Small Business Administration that allows 9 Q. All right. Okay.
10 minority contractors to get into the open 10 A. The early part. First quarter, I
11 market of bidding. 11 believe.
12 What the Corps would do was select 12 Q. All right. Now, Mr. McElwee, we've
13 certain projects to be bidded by contractors 13 been provided some documents by the Orleans
14 certified by the Small Business Administration 14 Levee District, and before the deposition I
15 to bid 8A projects. So that made the process 15 gave you a chance to look at these documents.
16 longer. We looked at it and it was about two 16 Right? I told you I was going to ask you some
17 years later before we actually started bidding 17 questions about them, right?
18 on it. 18 A. Yes.
19 Q. Okay. All right. Let me just clarify 19 Q. Okay.
20 something. In answer to the question about 20 MR. BRUNO:
21 what precautions were taken relative to 21 And I don't have copies of this,
22 underseepage, I think you testified that you 22 but I'm happy to make copies of this
23 had included in the bid package the cost of 23 thing.
24 engineering services. Is that what you said? 24 EXAMINATION BY MR. BRUNO:
25 A. Yes. 25 Q. We just got these what, two days ago?

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1 MR. TREEBY: 1 ground, talking about the turf on which this
2 If you're going to ask him 2 project was to be done.
3 questions about documents, could we 3 A. Please clarify for me what you men.
4 have a copy before you ask the 4 Q. In other words, what piece of
5 questions so we know what we're 5 ground -- what piece -- if I -- you know, what
6 dealing with? 6 was, for example, the size of the work site?
7 MR. BRUNO: 7 Let's start with that.
8 We're happy to do that for you, 8 A. Okay. The size of the work site was
9 Bill -- 9 approximately 600 feet by 60 feet.
10 MR. TREEBY: 10 Q. Okay. Now, the 60 feet, was that
11 Thank you. 11 along the length of the flood control
12 MR. BRUNO: 12 structure?
13 -- but it's not my job. Okay? 13 A. No. That was perpendicular to the
14 I'm happy to do it. I want to make 14 length.
15 that crystal clear for the record, 15 Q. So the 60 feet went into the --
16 since I was told by your people the 16 A. The 60 feet was parallel to the
17 same exact thing, it wasn't your job 17 flood --
18 when I was in Boise, Idaho to get 18 Q. So it was along the flood wall.
19 documents for my deposition. 19 A. Yes. The 60 feet was, I'm sorry.
20 MR. TREEBY: 20 Q. All right. Now, how far landward did
21 You were taking the deposition. 21 the construction site go, that is, from the
22 MR. BRUNO: 22 floodwall toward the land? Did it go very far
23 Exactly. And you're taking this 23 into the land side?
24 deposition, as well, aren't you? 24 MR. TREEBY:
25 MR. TREEBY: 25 Objection. Vague. I don't
Page 119 Page 121
1 I don't have the documents you're 1 understand the question.
2 talking about, so it would be helpful 2 MR. BRUNO:
3 if you would -- 3 You don't know the difference
4 MR. BRUNO: 4 between the land side and the water
5 And I will be helpful. I just 5 side of a flood control project?
6 want to make the point, that's all. 6 MR. TREEBY:
7 MR. TREEBY: 7 I'm sorry, joe. I'm not as smart
8 I will tell you every time I take 8 as you. I just don't understand your
9 a deposition, every time we take a 9 yes. You don't have to clarify it if
10 deposition in this case, we have and 10 you don't want to.
11 we will provide copies of the 11 MR. BRUNO:
12 documents we're using to all counsel. 12 I'm trying to. I'm just sort of
13 MR. BRUNO: 13 mystified how in all the depositions
14 I don't know if I'm using any of 14 we've taken that there's some
15 these documents. 15 confusion about the land side and
16 MR. LAMBERT: 16 water side of a floodwall. But that's
17 There's a lot of lawyers here, 17 okay, Bill, I can deal with it.
18 Bill. 18 A. Speaking in terminology that I have
19 MR. TREEBY: 19 learned with the Corps of Engineers, I'm going
20 We'll do whatever it takes. 20 to say flood side and protected site.
21 We've got copies. 21 EXAMINATION BY MR. BRUNO:
22 MR. BRUNO: 22 Q. That's fair enough. We'll use that.
23 All right. 23 Flood side -- and for Mr. Treeby, what is the
24 EXAMINATION BY MR. BRUNO: 24 flood side?
25 Q. First, can you describe for me the 25 A. The flood side is the batture towards

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1 the canal or towards the river. That's the 1 picture now, and I've got 100 foot width on my
2 side where the water rises and you're trying to 2 flood control structure and I'm -- I think I'm
3 retain it at. 3 understanding that that work site goes into the
4 Q. Okay. Let me guess. What is the 4 water 's edge on the flood side. Right?
5 flood side now? I'm sorry. The protected 5 A. That's correct.
6 side. 6 Q. Okay. Now what I was trying to learn
7 A. The protected side is the other side 7 is, how far on the protected side, or landward,
8 of where the area you're protecting, the -- you 8 if it went at all, did the work site extend?
9 say land side. 9 A. About 80 feet.
10 Q. Okay. 10 Q. 80 feet.
11 A. It's where the homes are or where the 11 A. Yes.
12 city is, or where the whatever area you don't 12 Q. Okay. I got you. All right. Now,
13 want water to penetrate. 13 did you guys erect any sort of barrier or
14 Q. And what's the dividing line between 14 fencing to demarcate this construction sites?
15 the flood side and the protected side? 15 A. Yes.
16 A. Flood control structure, whether it's 16 Q. What did you use to demarcate the
17 the levee or whether it's an I-wall or T-wall 17 site?
18 or a sheet pile. 18 A. Um -- we had to install chain-link
19 Q. In this particular instance, 19 fence.
20 Mr. McElwee, what was the nature of the flood 20 Q. Okay.
21 control structure, was it a levee, a T-wall or 21 A. I think it was between 6 or 8 feet,
22 an I-wall? 22 throughout the whole construction site to --
23 A. It was an I-wall and T-wall. 23 Q. Okay. All right. Now, it's easy for
24 Q. I-wall and T-wall. 24 me to understand that you would have the
25 A. Yes. 25 chain-link fence on the protected side.
Page 123 Page 125
1 Q. Did the T-wall have any earth berm 1 You've got 100-foot length, and you've
2 component? 2 got 80 feet until you get to the flood control
3 A. Yes. 3 structure, right?
4 Q. Okay. Did the I-wall have an earth 4 A. Correct.
5 berm component? 5 Q. All right. Now, did you have any
6 A. Yes. 6 demarcation on the flood side of the site?
7 Q. Okay. Can you give me some sense 7 A. Yes.
8 given I think you've already testified it's 8 Q. All right. What did you have on the
9 about 60 feet of length of this flood control 9 flood side of the site?
10 structure, how much of the 60 feet was T-wall 10 A. Same fencing.
11 and how much of the 60 feet was I-wall? 11 Q. All right. So we had our chain-link
12 A. For clarification, I would like to 12 fence that went all the way from the flood
13 mention that the T-wall itself was about 60 13 control structure to the water 's edge, right?
14 feet. 14 A. Yes.
15 Q. Oh. Sorry. 15 Q. Okay. And that would be north and
16 A. We had to take out another section of 16 south, right?
17 I-wall for traffic to come through. And the 17 A. Yes.
18 section we took out there I think was 18 Q. Okay. And by the way, am I wrong, I
19 40 feet -- 19 don't want to be accused of leading, but the
20 Q. All right, sir. 20 Industrial Canal generally goes from north to
21 A. -- of I-wall. 21 south, right?
22 Q. Tell me if I'm wrong, but did that 22 A. That's correct.
23 make the work site then 100 feet in width? 23 Q. All right. And the work that you guys
24 A. Yes. 24 were contemplating to do was on the east bank
25 Q. Okay. All right. Now, I've got a 25 of the Industrial Canal, right?

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1 A. That's correct. 1 that he was working on.
2 Q. All right. And it was -- can you give 2 MR. TREEBY:
3 me some landmarks, bridges or the like, that 3 That's --
4 would assist us in learning where the work site 4 MR. BRUNO:
5 was? 5 We've spent a lot of time on that
6 A. The work site was located north of the 6 already, but if that's unclear to you
7 Danzinger bridge, which is Chef Menteur 7 let me just clarify it.
8 Highway, Highway 90, I believe it is, it was 8 MR. TREEBY:
9 north approximately maybe a quarter of a mile. 9 Thank you.
10 Q. From? 10 EXAMINATION BY MR. BRUNO:
11 A. The Danzinger bridge. 11 Q. Sir, when I asked you the question
12 Q. The Danzinger bridge. 12 about the distance between these two locations,
13 A. Along the canal. 13 first location is the north break which you've
14 Q. Along the canal. Now, Mr. McElwee, 14 identified for us, and the second location is
15 since hurricane Katrina, have you become aware 15 your, the McElwee Brothers', construction site
16 of the fact that there was at least two 16 about which we've been talking. And of course
17 failures of the flood control structure in the 17 we've not talked about any other construction
18 area of the Lower Ninth Ward? 18 site. But anyway, what is the distance, if you
19 A. Yes, I have. 19 can, between those two sites?
20 Q. All right. And the reason I'm asking 20 A. The distance from the north break, and
21 the questions, sir, is I'd like to know how far 21 that I described earlier, and McElwee Brothers'
22 from the north break, okay, your construction 22 project, the Dwyer Road project, is
23 site was. But before I ask that, do you know 23 approximately a half a mile. I'm thinking.
24 generally where the north break that occurred 24 Q. I know you didn't measure it, but
25 during Katrina was located? 25 there's some distance between the two?
Page 127 Page 129
1 A. My knowledge of the north break. 1 A. Yes.
2 Q. Just where it was, not how -- just 2 Q. All right. Do you know whether or not
3 where. 3 there's a pump station in or around the
4 A. Location. 4 location of the north break that's operated by
5 Q. Location. Nothing else. 5 the Sewerage & Water Board?
6 A. By the Florida bridge, I believe it 6 A. Yes.
7 is, south of the Florida bridge -- southeast -- 7 Q. Okay. You guys weren't working on
8 Q. That's right. 8 that pump station, were you?
9 A. -- from the Florida bridge. 9 A. That pump station was an unmanned pump
10 Q. Okay. Now, having established that, 10 station. We weren't working on it. Pittman
11 so we're south of Florida and you're north of 11 was working on that pump station.
12 Danzinger. 12 Q. All right. Yours was north of that.
13 A. Yes. 13 A. No, that pump station was actually
14 Q. All right. Are you able, sir, as you 14 what we were tying into. Pittman was building
15 sit here today, to give us a general 15 a new pump station, and it was an unmanned
16 understanding of the distance between the north 16 station with a 50-foot tube that went alongside
17 break and the construction site? 17 of our job. They was inside of our
18 MR. TREEBY: 18 construction area. That's the only pump
19 Objection. Vague. You didn't 19 station I'm aware of.
20 say what construction site, and 20 Q. Okay. Let me grab us a map, if you
21 there's -- you started talking about 21 don't mid, and see if I can help us out here.
22 areas near -- 22 (Off the record.)
23 MR. BRUNO: 23 EXAMINATION BY MR. BRUNO:
24 Okay. Bill, I thought we were 24 Q. All right. First of all, for the
25 talking about the construction site 25 record, we have all seen this map a hundred

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1 times. This is the Times-Picayune flood map. 1 Mark it so we have a record of what
2 Let me just ask you generally if it's, sir, in 2 this witness said. That's what I'm
3 your opinion, this generally accurately depicts 3 going to ask.
4 the Industrial Canal relative to the bridges 4 MR. BRUNO:
5 that cross the Industrial Canal? 5 That's fine. That's fine. And
6 A. Yes, it does. 6 but I think is record pretty clear, we
7 Q. Can you show me the location of the 7 have a videotape, Bill, and he's got a
8 north break. 8 picture of where he pointed. If that
9 A. It's generally in this location. 9 isn't clear, I don't know what is, but
10 Q. All right. And where -- what is the 10 I'm happy to help you any way I can.
11 bridge there? 11 EXAMINATION BY MR. BRUNO:
12 A. Danzinger. 12 Q. Now, Mr. McElwee --
13 Q. No, no, no. Maybe I'm confusing you. 13 MR. TREEBY:
14 I thought you told me the location of the break 14 So this is Exhibit 6? Is that
15 in the levee in the Lower Ninth Ward was -- 15 what it is?
16 A. Around the Florida Avenue bridge. 16 MR. BRUNO:
17 Q. Florida. So where's Florida? 17 No, I'm not marking it. If you
18 A. From my looking at this map, this 18 want to mark it -- it's on the
19 should be Florida here. 19 videotape. I would mark a smaller
20 Q. It's under I-10? 20 version so that it could be attached,
21 A. It's south of I-10. 21 which I'm happy to do, an 8 x 10.
22 Q. All right. Is it close to I-10? 22 (Exhibit 6 was marked for
23 A. It's close to I-10, yes. 23 identification and is attached hereto.)
24 Q. All right. Now, where is the 24 EXAMINATION BY MR. BRUNO:
25 Danzinger bridge? 25 Q. But anyway, you see these two stars
Page 131 Page 133
1 A. Right here. Chef Menteur Highway. 1 with the arrows?
2 Q. Okay. 2 A. Yes, sir.
3 A. Highway 90. They don't have it on 3 Q. All right. Do you know whether or not
4 here, but Chef Menteur Highway. 4 those depict the locations of the breaks of the
5 Q. So it's Chef Menteur Highway is the 5 Industrial Canal wall on the --
6 Danzinger bridge. 6 MR. TREEBY:
7 A. Yes. 7 Objection. Leading.
8 Q. Okay. All right. Now you see here 8 EXAMINATION BY MR. BRUNO:
9 where this star is on the map? 9 Q. On the Lower Nine?
10 A. Yes. 10 MR. TREEBY:
11 Q. With the arrow? 11 Objection. Leading. That's not
12 MR. TREEBY: 12 where the witness indicated they were,
13 I object. 13 and now you've suggested to him where
14 MR. BRUNO: 14 they are. That's specifically
15 You can object all day long and 15 objectionable leading questioning.
16 all night. Make your objection. 16 MR. BRUNO:
17 MR. TREEBY: 17 No. Oh, Bill, no it's not. I
18 Thank you, Joe. Thank you. 18 said, do you know whether or not the
19 MR. BRUNO: 19 star and the arrow reflects where the
20 Go ahead. 20 breaks are? Yes or no? I know you
21 MR. TREEBY: 21 want to play a game and do your little
22 I object to the use of this map 22 silliness, but it's just not fair and
23 unless you're going to attach it and 23 I'm not going to tolerate it.
24 mark where this witness has indicated 24 EXAMINATION BY MR. BRUNO:
25 where he believes the north breach is. 25 Q. Go ahead.

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1 A. This is a break. There was some 1 and the -- any berms that may have been
2 overtopping in this area. 2 associated with it?
3 Q. Okay. 3 A. I don't know directly, but I know the
4 A. This is a break, and I'm familiar with 4 New Orleans Levee Board was involved.
5 this break that's, um -- south of Claiborne. 5 Q. Okay.
6 That's what I call it, but this connects into 6 A. I don't know who owned it. You know,
7 Claiborne. 7 I can't tell you the titles of who owned that
8 Q. All right. Well, all I'm trying to 8 structure.
9 get a sense is that, where the lower Ninth Ward 9 Q. Do you know whether the Sewerage &
10 was -- 10 Water Board owned any of the land underneath
11 A. Yes, I'm familiar with that. 11 this construction site? If you know or don't?
12 Q. You're familiar -- are you familiar 12 A. I don't know, but I know they're
13 with the Lower Ninth Ward? 13 responsible for maintaining the pumps after the
14 A. I'm familiar with the lower Ninth 14 structure was going to be built. So I know
15 Ward. 15 they were involved in that project because of
16 Q. How far from your work site was the 16 that particular reason.
17 Lower Ninth Ward? 17 Q. All right. Do you know if the New
18 A. Okay. Now that's a greater distance. 18 Orleans Sewerage & Water Board owned any
19 That I can't tell you what it is, but it's more 19 buildings or equipment or piping or the like
20 than a half a mile. 20 that went over this construction site?
21 Q. Okay. All right. All I'm trying to 21 A. Yes.
22 do is get a distance here, I'm not trying to 22 Q. All right. What was your
23 play games or trap you or trick you, as 23 understanding of what the Sewerage & Water
24 apparently Mr. Treeby -- 24 Board owned?
25 A. If I had to give an approximate, I 25 A. They owned, and like I said before, an
Page 135 Page 137
1 would say maybe somewhere between two and five 1 unmanned pump station that operated on the end
2 miles -- 2 of Dwyer Road where it intersected with, um --
3 Q. Okay. All right. Can we agree it's 3 the flood construction area, 50-inch line that
4 not close -- the two are not close to each 4 traversed underneath the flood control
5 other? 5 structure on out to the canal.
6 A. Yes. We can agree. 6 Q. Okay. The pump itself, was it on the
7 Q. All right. Thanks. All right. Thank 7 construction site or off of the construction
8 you. And we'll -- we're going to ask Stephanie 8 site?
9 to print out a color copy of an 8 x 10 version 9 A. It was off the construction site.
10 of that. 10 Q. Off. Okay. So that the -- based upon
11 All right. Now, we're talking about 11 your testimony, I want to have a clear
12 the work site. Did you know who owned the land 12 understanding, the only thing before the work
13 underneath the work site? 13 began that the Sewerage & Water Board owned was
14 We got three components, we've got -- 14 that pipe --
15 you've already told us, the protected side, the 15 A. The pipe.
16 flood or the flood control structure, and then 16 Q. -- that went --
17 we have the flood side. 17 A. Through the construction site.
18 A. If my memory serves me correctly, the, 18 Q. Okay. All right. Did you know
19 um -- Port Commission either owned it or had 19 whether or not there had been any agreement
20 control of it during our construction process. 20 between the Board of Commissioners of the
21 That's where most of the entities that service 21 Orleans Levee District and the City of New
22 New Orleans received their products. So the 22 Orleans for the use and benefit of the Sewerage
23 Port Commission, and they were involved in it. 23 & Water Board that regarded this project?
24 Q. Okay. Do you know who owned the flood 24 A. I knew there was some relationship,
25 control structure, that is, the T-wall, I-wall 25 but what agreements were there, that I did not

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1 know. 1 going to be used. That permit, um -- access to
2 Q. Okay. Do you know whether or not the 2 the site and those type of things, those
3 bid proposal or the bid package required you as 3 permits were handled by the Corps of Engineers.
4 the contractor to provide as a component part 4 Q. Did the bid package indicate to you,
5 of the bid evidence of any insurance? 5 the contractor, whether or not the Corps of
6 A. Yes. 6 Engineers was going to evaluate, from an
7 Q. Do you know whether or not the bid 7 engineering perspective, any of the excavation
8 package required you to show evidence of 8 that may have been made necessary by the plans
9 insurance which included coverage for 9 and specifications?
10 explosion, collapse and underground property 10 A. Repeat that.
11 damage hazards? 11 Q. All right. Did the bid package, in
12 A. Yes. 12 describing the work --
13 Q. Okay. Do you know if the requirement 13 A. Uh-huh.
14 for that insurance came from an agreement 14 Q. -- indicate to you, the contractor,
15 between the Board of Commissioners of the 15 that the Corps was going to, as part of its
16 Orleans Levee District and the City of New 16 proposal, going to undertake an evaluation of
17 Orleans for the use and benefit of the Sewerage 17 any excavation that may be required as a result
18 & Water Board of New Orleans; do you know 18 of the contract?
19 whether or not the genesis of that insurance 19 MR. LEVINE:
20 requirement came from any such agreement? If 20 Objection. Vague.
21 you know, you know. If you don't -- 21 A. To try to answer your question, yes,
22 A. I don't know that it did, but I had an 22 there was -- the contract quality control and
23 inkling that it did. 23 QA procedures, provisions in the contracts,
24 Q. All right. Did the bid package 24 whenever a contractor bids a Corps of Engineers
25 indicate whether or not the contractor was 25 project and there's CQC provisions in it, most
Page 139 Page 141
1 responsible for obtaining all permits? 1 contractors know that the government is going
2 A. Yes. 2 to be involved in evaluating procedures on that
3 Q. Did the bid package identify for the 3 particular project. Whether it's excavation or
4 contractor all of the permits which may have 4 whether it's installation or whether it's off
5 been required by any governmental entity or 5 site inspection, the Corps was going to be
6 body? 6 involved in looking at it.
7 A. Repeat that question again. 7 EXAMINATION BY MR. BRUNO:
8 Q. Did the bid package give the 8 Q. Do you know whether or not the bid
9 contractor information about what permits may 9 package indicated to you that you were required
10 be needed from anybody? 10 to get a permit from the Orleans Levee District
11 A. Some permits, yes. And the rest the 11 in order to perform the work outlined by the
12 contractor was responsible for getting on his 12 plans and specifications?
13 own. 13 A. On my particular project, the Dwyer
14 Q. Okay. Can you remember what permits 14 Road project, I don't recall the requirement to
15 the bid package itself indicated the contractor 15 obtain a permit from the Orleans Levee
16 was required to obtain? 16 District. Now, many of those permits were
17 A. There was I think a storm water 17 already worked out by the Corps.
18 pollution control permit from DEQ, Louisiana 18 Q. Okay. All right. Do you know whether
19 DEQ, Development of Environmental Quality. 19 or not in fact the Orleans Levee District had a
20 Q. Okay. 20 chance to review the drawings and
21 A. Um -- hot work permits from, um -- the 21 specifications which later became the plans and
22 port, Port of New Orleans Commission, whatever 22 specifications which formed the basis of the
23 it was, for any, um -- torches or anything lit 23 opportunity to bid?
24 on that particular project or any fire expected 24 A. During that construction period and
25 to be burned and what particular processes were 25 time, for the project that we're talking about,

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1 Dwyer Road, I was informed that -- by the Corps 1 A. Um -- my hypothesis is, and back when
2 of Engineers representatives, that all parties 2 I was working for the Corps, once a structure
3 we've talked about so far, the Sewerage & Water 3 was built it was turned over to a local
4 Board, the Orleans Levee District, the Port 4 authority, and the levee district has had a lot
5 Commission, um -- all had opportunities to look 5 of flood control structures turned over to them
6 at and review and talk about the plans and 6 for maintenance and whatever.
7 specs for whatever it involved their points of 7 Q. Right.
8 view. To include Entergy, also. 8 A. And my appreciation of it is this
9 Q. Why was Entergy involved? 9 structure was eventually going to go back to
10 A. There was a high voltage transmission 10 them. The flood protection structure.
11 line running parallel to the levee structure 11 Q. Okay.
12 that had to be dealt with at some point. When 12 A. So that's why they had an interest in
13 you're driving sheet piling with cranes and 13 knowing what was going on. Not only that,
14 various booms, there's a great concern of 14 during hurricane season they provided
15 interfering with the power that supplied I 15 assistance to us in forms of having sandbagging
16 think Metairie at that time. 16 to immediately close off this flood control
17 Q. All right, sir. Do you know a 17 area in case of an impending storm. So we had
18 gentleman by the name of Stephen G. Spencer? 18 four impending storms during this construction
19 A. I may have come across him in the 19 process. And as part of our hurricane
20 construction process. I can't remember him at 20 protection plan they were integrated in at that
21 this time. 21 time, you know. We'd go so far with the
22 Q. All right. Did you have any working 22 construction, but then the rest of it may be
23 relationships with anyone from the Orleans 23 supported by sandbagging or backup plans of
24 Levee District during the time that you were 24 having being balloons filled with sand, plastic
25 preparing the bid package or that you -- during 25 balloons, to provide protection in case of an
Page 143 Page 145
1 the time that you actually did the work? 1 impending storm.
2 A. During the time that we actually did 2 Q. All right. Mr. McElwee, have you
3 the work, yes. 3 heard of a firm called Design Engineering,
4 Q. Do you recall whether or not -- the 4 Inc.?
5 name of the folks that you may have dealt with? 5 A. Yes.
6 A. Mr. Dom Elgazabo. How to spell his 6 Q. Do you know, sir, whether or not
7 name I don't know. In fact, he started out 7 Design Engineering, Inc. had anything
8 working for the Corps in the construction 8 whatsoever to do with this Dwyer Road project?
9 division section, then he retired and went over 9 A. They had everything to do with this
10 to the levee district. So I was dealing with 10 project.
11 him from the Corps side and from the levee 11 Q. What did they do, sir?
12 district side. 12 A. They were the design -- they were the
13 Q. All right. Now, did Mr -- and I don't 13 firm for the Corps of Engineers that designed
14 know if I can say this name, but did you 14 and monitored this construction process. When
15 interact with him on the site or did you 15 I worked for the Corps as a quality assurance
16 interact with him in his office at the levee 16 rep, the Corps used to do a lot of that work
17 district? 17 with their own engineers. They contracted
18 A. Um -- on the site. 18 Design Engineering to perform what they used to
19 Q. Okay. So I gather then that the levee 19 perform when I used to work for them. And
20 district would have from time to time its own 20 Mr. Jim Lumsden was one of the design engineers
21 representatives on the site? 21 on the project, on the Dwyer Road job.
22 A. At particular meetings, yes. Passing 22 Q. All right. I'm going to show you a
23 throughout the construction process, yes. 23 document that has been numbered
24 Q. All right. Do you know why they were 24 OLD-MRGO-BOOM-003.
25 there? 25 MR. TREEBY:

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1 It's incomplete. You should have 1 figure out the Bates numbers on these
2 another five numbers. 2 documents. Let me show you first a document
3 MR. BRUNO: 3 which is Bates numbered OLD-MRGO-BOOM-00329613.
4 (Indicating.) 4 And his is just to give you --
5 MR. TREEBY: 5 MR. TREEBY:
6 It's cut off, I think, because 6 23.
7 all those have more numbers. 7 MR. BRUNO:
8 MR. BRUNO: 8 No, no. This is --
9 Yeah. This is the way they were 9 MR. TREEBY:
10 given to me. Every last one of them 10 It's 23. You said 13. It's 23,
11 is cut off at 3. 11 at the end.
12 MR. TREEBY: 12 MR. BRUNO:
13 I got the right ones. 13 I'm sorry. Bill, I wrote down.
14 MR. BRUNO: 14 Give it to me again. 003 --
15 Well, I was hoping -- it's August 15 MR. TREEBY:
16 the 14th, 1998. It is a letter from 16 29623.
17 the Board of Commissioners of the 17 EXAMINATION BY MR. BRUNO:
18 Orleans Levee District. It is 18 Q. 00329623. Okay. Fine. Now, this is
19 directed to John Holtgreve, Design 19 just to give you a frame of reference for the
20 Engineering, Inc. Let me show it to 20 next document. Just read it. (Tendering.)
21 the witness first and we can just take 21 A. Yes, sir.
22 a look at it. 22 Q. Okay. And here we have a letter from
23 EXAMINATION BY MR. BRUNO: 23 a Mr. Lumsden from Design Engineering.
24 Q. How about this: You look at it. I'm 24 Do you know who Mr. Lumsden is or was?
25 going to give it to Bill before I ask you any 25 A. Yes, I do.
Page 147 Page 149
1 questions. 1 Q. Who is he?
2 MR. BRUNO: 2 A. He was one of the design engineers
3 I'm going to let him look at it, 3 that worked for Design Engineering, Inc.
4 I'm going to give it to you, see if 4 relative to preparing this project for bid and
5 you can find it before I ask any 5 also administering it during construction.
6 questions. Same thing with the 6 Design Engineering Construction, Inc. was the
7 government. 7 consultant that the Corps of Engineers hired to
8 Guys, this came yesterday. Okay? 8 do the engineering for this particular project.
9 This is not something that you've been 9 Q. All right. Now, you see here,
10 having. So I don't know if you've got 10 obviously, a letter from Mr. Lumsden of Design
11 a separate book. 11 Engineering to Mr. Stephen Spencer who is
12 MR. TREEBY: 12 identified on this document as the Chief
13 He just gave us copies. Just 13 Engineer for the Orleans Levee District, and he
14 now. 14 says -- and it's regarding the Dwyer Road
15 MR. BRUNO: 15 drainage pumping station improvements discharge
16 Oh, Scott. Okay. So this would 16 tubes and canal, which is the project you
17 be toward the end. Bill, if it's in 17 ultimately got. Right?
18 order it's the last couple of pages. 18 A. Yes, sir.
19 MR. LEVINE: 19 Q. He says, Dear Mr. Spencer, we submit
20 This one? Is it August 14th, 20 herewith, one set of 95 percent drawings and
21 1998? 21 specifications on the referenced project for
22 (Lunch break.) 22 your review and comments.
23 EXAMINATION BY MR. BRUNO: 23 Do you have any idea why Design
24 Q. Okay. While we were off the record, 24 Engineering would be at all interested in
25 Mr. Treeby was kind enough to allow us to 25 having the Orleans Levee District comment on

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1 its designs and specifications? 1 the devices would be metal plates along the
2 A. Yes. 2 wall installed to check survey elevations or
3 Q. Why would they do that? 3 survey transversing -- you know, doing some
4 A. Well, any particular interest that is 4 cross-sections.
5 involved in a particular project may be aware 5 Q. Uh-huh.
6 of information, it's called information 6 A. There was no electronic devices that
7 sharing, to be disseminated amongst everyone so 7 we installed, but we constantly monitored on a
8 that nothing falls through the gap, I would 8 weekly basis doing survey cross-sections to --
9 say. You know, even though they're a design 9 and survey measurements to show the government
10 engineering firm, it's wise to have someone 10 movement in the railroad tracks, movement in
11 check over your work, look at everything. 11 the floodwall.
12 Q. All right. Then may I show you, 12 Q. How about piezometers?
13 please, OLD-MRGO-BOOM-00329621 and 22, which is 13 A. Piezometers would tell us about the
14 a two-paged document. I showed this to you 14 water levels relative to the excavation --
15 early earlier. Okay? 15 Q. Right.
16 A. Yes, sir. 16 A. -- but wouldn't necessarily tell you
17 Q. And you see here that that is the 17 about movement of the ground surface. It would
18 response by the OLD to Mr. John Holtgreve of 18 only let you know what the water levels were
19 Design Engineering, Inc., and he says, we have 19 over a certain period of time and should there
20 reviewed your 95 percent submittal of 20 be a need for concern.
21 July 20th, for the referenced project, with the 21 Q. Right. But the reason I asked the
22 following comments: Now I would like to draw 22 question is because I thought we learned this
23 your attention very specifically to Paragraph 23 morning that this seepage could cause
24 Number 11. 24 structural damage.
25 A. Yes, sir. 25 A. It could.
Page 151 Page 153
1 Q. All right. Now, he says here that -- 1 Q. And because the seepage could cause
2 and he's referring to a contract section -- the 2 structural damage I'm wondering if the
3 contract shall install monitoring devices in 3 monitoring devices might -- as described here,
4 the adjacent flood protection system to warn of 4 generally may have included piezometers since
5 any structural damage that may occur due to 5 the purpose of these devices was to warn of any
6 excavation work. 6 structural damage that may occur to -- due to
7 Now, my first question to you is, you 7 the excavation work.
8 as a contractor, sir, you would agree with me 8 Or is that a different -- or am I way
9 that monitoring devices could cover a whole 9 off base?
10 panoply of different kinds of equipment. 10 A. No, you're not way off base. The data
11 A. That's correct. 11 that I as a contractor would give to the Corps
12 Q. Do you, as a contractor, preparing to 12 of Engineers in our daily reports concerning
13 prepare a bid for this contract, have a better 13 piezometer measurements was utilized by
14 understanding of what monitoring devices are 14 engineers to look for any changes.
15 being referred to in this contract 15 Q. Right. Okay.
16 specification? 16 A. So the engineer would use that.
17 A. As per that letter, I don't know 17 Q. Right.
18 exactly what they're talking about, but if we 18 A. I, as a contractor, per se, would
19 go back to the actual contract plans that were 19 not -- would only get alerted if the
20 issued to the contractors, I can tell you some 20 measurements of the water levels were kind of
21 of the items that they did talk about. That is 21 high for my pumping system.
22 like a general paragraph, but it was more 22 Q. All right. But this section seems to
23 specific in the plans. 23 require the contract to require that these
24 Q. Okay. 24 things be installed, not necessarily by the
25 A. In the plans, um -- you know, some of 25 contractor but by someone over whom the

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1 contractor has some control. 1 what they were concerned about.
2 Is that what's -- am I wrong with 2 Q. Right. So let's see. Is it fair to
3 that? 3 conclude that the OLD 's interest is in how the
4 MR. TREEBY: 4 project may or may not impact the flood control
5 Objection. Leading. 5 structure that's there?
6 A. I could better answer your question if 6 MR. TREEBY:
7 I had a set of specs in front of me and look at 7 Object. Leading.
8 Section 2200 and see what section are we 8 A. Ask that question again.
9 talking about, to answer that question. 9 EXAMINATION BY MR. BRUNO:
10 Because there's various sections in the plans 10 Q. Is it not a fair conclusion to draw
11 and specs. And if it's dealing with 11 from this piece of paper that the OLD 's
12 dewatering, then I can tell you it's dealing 12 interest in the plans is to evaluate the impact
13 with dewater. If it's dealing with something 13 of the plans on its flood control structure?
14 else, embankment placement, I can tell you what 14 MR. TREEBY:
15 they're referring to. I need to see 2200. 15 Same.
16 Q. All right. Can you tell me what the 16 A. That is fair to say from that letter,
17 purpose -- I mean, from reviewing the comments 17 that is their interest. The impact of the work
18 by the chief engineer of the OLD, are you able 18 on the flood control structure.
19 to discern from his comments what it is that 19 EXAMINATION BY MR. BRUNO:
20 the OLD is interested in as regards the 20 Q. I note that in Number 8 they say
21 construction contract? 21 decision to pull or leave in place the sheet
22 A. May I see that document? 22 pile.
23 Q. Yes. And I ask that because I see in 23 How might that, if it does, have any
24 1, floodgate; Number 2, I see, um -- something 24 impact on the flood control structure?
25 about a fence; Number 3, flood walls; 4, 25 A. During excavation, there was a
Page 155 Page 157
1 existing floodwall; 5, T-wall, et cetera. I've 1 question as to -- when we as a contractor was
2 lost the second page. Sorry. There it is. 6 2 directed to install sheet piling to do
3 says flood protection; 7 says hydrostatic 3 excavation, there was a question or whether or
4 pressure, sheet pile, et cetera. (Tendering.) 4 not that sheet piling was going to stay in
5 MR. LEVINE: 5 place or be removed. If it was going to be
6 I'm going to object to the form. 6 removed, I think their concern at that time was
7 Are you asking about the whole 7 going to be what's going to take place to keep
8 document or just -- 8 the area that was excavated stable, what
9 MR. BRUNO: 9 materials are going to be used to backfill
10 Yes. The whole document. I'm 10 after removing the sheet piling, so that voids
11 asking him if this document gives him 11 and everything were not in place.
12 any indication as to what the interest 12 Q. All right. I see. Can I conclude
13 is, if any, that the OLD has in the 13 from your answer that the removal of the pile
14 specifications. 14 would create voids?
15 A. After glancing at this correspondence, 15 A. The excavation and the removal of the
16 it appears that their interest was basically 16 piles would create voids.
17 operational, as far as flood control. They do 17 Q. Right. And what would be the
18 have some other engineering comments about 18 consequence of having voids? Would that relate
19 certain things, but the gist of it is hurricane 19 back to what you told us this morning about?
20 season. 20 A. The consequence would be some
21 EXAMINATION BY MR. BRUNO: 21 traverse, traverse movement of the earth from
22 Q. Right. 22 one part to the other. Whether it's your
23 A. And what's going to be in place during 23 foundation under your floodwall migrating to
24 that time frame. 24 the void, thus leaving you with an unstable
25 Paragraph 8, 9 and 11 is the bulk of 25 surface --

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1 Q. Okay. 1 one of its subcontractors to come to that
2 A. -- or allowing a void for water to 2 preconstruction conference, which included its
3 travel in. 3 selected design engineer, Mr. J. Michael Dixon.
4 Q. All right. So is the business of the 4 Q. Who's he with? I'm sorry.
5 removal of sheet piles relevant to the 5 A. He was with Dixon and Associates, and
6 potential damage to the floodwall? 6 he was also with another firm. But when he
7 A. Yes, it's absolutely relevant. 7 transferred from firm to firm I stayed with
8 Q. All right. Let me show you -- 8 him. McElwee Brothers stayed with him. Um --
9 MR. BRUNO: 9 during the preconstruction conference, the item
10 Bill, I'm going to ask your help 10 you see on the agenda were discussed and an
11 again, because again I don't have the 11 when we got down to excavation and dewatering
12 darned -- I got the cut off page. 12 issues I deferred all questions to Mr. Dixon
13 It's about a quarter inch from the 13 and allowed him to answer them. So when he
14 bottom -- it cuts off, but it looks 14 explained in detail what his, um -- design for
15 like it says preconstruction 15 retaining sheet pile walls would be and how he
16 conference agenda. And then right 16 would go about doing the dewatering system --
17 below that, it says, contract number, 17 in general, he didn't get into specifics.
18 DACW 29-01-C-035, southeast Louisiana, 18 Q. All right. Did you have any
19 Dwyer Road drainage pumping station. 19 understanding as to how far below the surface
20 MR. LEVINE: 20 the T-wall went?
21 Can I look at it real quick? 21 A. When I answer this question I'm going
22 MR. BRUNO: 22 to say I'm including the piling dealing with
23 (Indicating.) 23 the T-wall.
24 EXAMINATION BY MR. BRUNO: 24 Q. No. Well, let me ask you -- I should
25 Q. Yeah. I'm showing you 25 ask it this way, because I'm not quite as
Page 159 Page 161
1 OLD-MRGO-BOOM-00329559, 60, 61, 62, 63 and 64, 1 familiar with T-walls as I am I-walls: In a
2 I'm guessing. 2 T-wall construction does the sheet pile go by
3 Do you recall seeing a document like 3 low the bottom of the T?
4 that, Mr. McElwee? 4 A. Yes.
5 A. Yes, sir. 5 Q. Okay. And we've learned from your
6 Q. What is that? 6 course materials that the sheet pile itself can
7 A. It's the preconstruction conference 7 act as a cutoff for seepage.
8 agenda. This took place prior to execution of 8 A. That's correct.
9 work on the project. This was after bid. 9 Q. So what I'm trying to understand is
10 After we placed the bid and received the 10 whether or not you were advised by the Corps as
11 project, and prior to going out on the job, the 11 to how -- what the sheet pile depth was under
12 Corps holds what's called a pre construction 12 that T-wall?
13 conference where all parties that have an 13 A. Yes. It was indicated in the plans.
14 interest are invited to attend and items are 14 Q. All right. Do you recall -- I know,
15 discussed, relative to the contract. 15 you may not remember, but do you remember its
16 Q. Do you recall at that preconstruction 16 depth?
17 conference having dialogue with the United 17 A. I can tell you the length of the
18 States Army Corps of Engineers about 18 sheets. They were roughly about 12 and a half.
19 underseepage issues generally? 19 14 feet long. So they were 12 and half, 14
20 A. Yes. 20 feet long below the base of the T. Yes.
21 Q. All right. Can you just share with 21 Q. All right. So that you think the
22 us, you know, how those -- how the subject came 22 negative elevation was about negative 12?
23 up and what was discussed? 23 A. I'd hate to answer that question for
24 A. Um -- because of the nature of the 24 you right now because I'd have to see a set of
25 contract, McElwee Brothers invited every last 25 drawings --

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1 Q. Fair enough. 1 (Exhibit 7 was marked for
2 A. -- and I'd have to see the datum we 2 identification and is attached hereto.)
3 were on. 3 EXAMINATION BY MR. BRUNO:
4 Q. All right. Here's the simple last 4 Q. Okay. This is real rudimentary. All
5 question with regard to that T-wall business. 5 right. You can see that what I've drawn there
6 Was the sheet pile depth relevant to the issue 6 I've attempted to draw a T-wall with a sheet
7 of underseepage as it relates to potential 7 pile that goes below the T-wall.
8 damage to the flood control structure? 8 A. That's the sheet pile depth here?
9 A. Was sheet pile depth relevant? Yes. 9 Q. No.
10 Q. All right. Okay. Why is the sheet 10 A. No, this is the sheet pile. This is
11 pile tip depth relevant? 11 excavation.
12 A. Well, the purpose of the sheet pile is 12 Q. Yeah. This is the sheet pile.
13 to act as a cutoff wall. And if -- depending 13 A. Okay.
14 on how deep your soils investigation shows you 14 Q. This is the bottom of the T.
15 the strata that may transfer water is, you have 15 A. Okay.
16 to design to that depth to cut that water off. 16 Q. This is surface and the earth berm.
17 So it's very important. 17 A. Got you.
18 Q. Okay. To kind of walk through this 18 Q. This is the clay layer, this is the
19 and see if we can make it as easy as we can, 19 sand layer.
20 let's assume we have an engineering report that 20 A. Okay.
21 gives us information about the soils strata 21 Q. You can see the excavation.
22 below the work site. Okay? 22 A. That's correct.
23 A. Yes. 23 Q. And I've purposefully drawn the
24 Q. Let's further assume that the soil 24 excavation to go below the clay layer and break
25 information reflects a 11-foot layer of clay, 25 into the sand layer.
Page 163 Page 165
1 and below that a 10-foot layer of sand. 1 A. That's correct.
2 A. Oh, yes. 2 Q. But I've shown the bottom of the
3 Q. Okay? And let's further assume that 3 excavation to be equal to the bottom of the
4 the sheet pile depth is 15. 4 sheet pile tip.
5 A. Yes. 5 A. That's correct.
6 Q. Okay? Now, what is the relevance of 6 Q. Okay. So what if anything -- how is
7 that sheet pile tip depth to any excavation 7 the sheet pile tip relevant to that kind of
8 that you may be contemplating doing on the 8 excavation?
9 flood side of the flood protection structure, 9 A. It's very -- during the excavation
10 if any? 10 we're fine. But when I get ready to remove
11 MR. LEVINE: 11 these sheets, like I talked about earlier,
12 Objection. Improper 12 that's when it comes into play.
13 hypothetical. 13 Q. Okay.
14 You can answer. 14 A. The depth. This area that -- the
15 A. I'm going to try to answer. What is 15 clay.
16 the relevancy? 16 Q. Right.
17 EXAMINATION BY MR. BRUNO: 17 A. If this void in the clay is not filled
18 Q. All right. Let me draw it for you. 18 to be like the in situ, we call it in
19 We'll do it that way. I'm going to mark this 19 engineering, the existing situation, that's
20 as McElwee Number 6. 20 when the problem's going to occur. Because the
21 MR. JOANEN: 21 water that's here flowing is going to have I
22 It will be 7 if you want to count 22 guess a snorkel, a way to come up.
23 that map. 23 Q. Right.
24 MR. BRUNO: 24 A. So if we don't treat this area that we
25 7. Okay. 25 penetrated and excavated to block it off, we

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1 got a major problem. 1 relationship with the Corps, just in terms of
2 Q. Got you. Okay. All right. 2 structure. Okay? While you're doing the work.
3 Now, if the sheet pile depth is deep 3 I see this document, and --
4 enough to cut off that potential underseepage, 4 MR. BRUNO:
5 then you don't have to worry. Is that right? 5 And it's this one.
6 A. If we get ready to remove those 6 MR. LEVINE:
7 sheets -- 7 How many pages is that?
8 Q. I'm sorry. I'm talking about the 8 MR. BRUNO:
9 sheet pile as a component of the floodwall now. 9 It's just one page, the number
10 A. Okay. 10 again is cut off. I apologize. It's
11 Q. Let's say it goes down to 40 feet. 11 a few pages -- I'm going now from the
12 A. If it does, you don't have a problem 12 bottom to the top. So if we just keep
13 because it's cutting the water off already. 13 going in that direction we'll catch up
14 Q. So you have to know, in order to have 14 with you.
15 some intelligent basis to plan, how deep your 15 MR. LEVINE:
16 sheet pile tip is in your floodwall. Right? 16 That is 329547.
17 MR. TREEBY: 17 MR. BRUNO:
18 Object. Leading. 18 All right. And it's entitled who
19 A. As a contractor, you need to know. 19 talks to whom.
20 EXAMINATION BY MR. BRUNO: 20 EXAMINATION BY MR. BRUNO:
21 Q. All right. Now, the next document is 21 Q. First of all, sir, have you seen that
22 the document right before, and you'll help me 22 document?
23 remember the number. OLD-MRGO-BOOM-003 -- it's 23 A. Yes.
24 the document right before, the one with the 24 Q. What is this document?
25 little note on it. What's that number? 25 A. This document is one that was utilized
Page 167 Page 169
1 MR. LEVINE: 1 during a partnership session that took place
2 329558. 2 after the preconstruction conference to get a
3 EXAMINATION BY MR. BRUNO: 3 full explanation of who talks to whom during
4 Q. Thank you. On this piece of paper 4 the construction process so there wouldn't be
5 I'll just share with you that it says the job 5 any conflicts, ambiguities -- I mean, there
6 is such that no work on the flood walls is to 6 were so many agencies involved. We already
7 be done during hurricane season. 7 discussed quite a few of them.
8 Do you remember that to be true? 8 Q. Yes.
9 A. Yes. 9 A. And one of the concerns that McElwee
10 Q. Do you know why that was? 10 Brothers had, and then also the Corps had, was
11 A. Yes. 11 to make sure we understood the lines of
12 Q. Why? 12 communication. Because if you got four or
13 A. Because we were, during the 13 fifth engineers working on a job and two or
14 construction process, breaching the floodwall. 14 three of them coming up giving directions, it
15 And if any impending storm was coming during 15 creates havoc.
16 that time frame some, the amount of work effort 16 Q. Okay.
17 to seal off that opening required time. But 17 A. But if you have one point of contact,
18 during hurricane season you don't have a lot of 18 those other engineers can work through that one
19 time. If a storm is impending, over in 19 point of contact to convey whatever information
20 Jamaica, you know, you might have three, four, 20 needs be conveyed throughout to all the rest of
21 maybe seven days. Seven days is not enough 21 the parties.
22 time to close that void -- 22 Q. Now, was there a Corps engineer person
23 Q. Okay. 23 on site every day?
24 A. -- to its existing state. 24 A. Yes.
25 Q. All right. Now, let's talk about your 25 Q. And what was that person's title?

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1 A. I'd like to clarify. Every day of 1 A. Yes. Contracting officer.
2 construction, that work was being performed. 2 Q. And then below him is administrative
3 Q. Yes, of course. 3 contracting officer?
4 A. Title? Um -- was construction 4 A. Administrative contracting officer.
5 representative was a QA person, quality 5 Q. And then there's a team leader?
6 assurance rep. I mentioned him earlier. 6 A. Yes.
7 Q. Right. Quality assurance. Was that 7 Q. And a project engineer.
8 person, to your knowledge, an engineer? 8 A. Yes.
9 A. No. 9 Q. And then the inspector.
10 Q. And what was the role, as best you 10 A. That's correct.
11 understood, of the presence of the quality 11 Q. Okay. Now to the right of that, this
12 control person by the Corps on the site? 12 is the McElwee people, right?
13 A. I'd like to clarify something. 13 A. That's correct.
14 Quality control was the contractor's personnel. 14 Q. And to the left of that, who's DEI?
15 Quality assurance -- 15 A. That's Design Engineering, Inc.
16 Q. I'm sorry. Quality assurance. 16 Q. Okay. And then the other --
17 A. -- is the government 's 17 A. Points of contact. For the
18 representative. 18 railroad --
19 Q. QA. 19 Q. Sewerage & Water Board.
20 A. QA. That's correct. 20 A. -- Sewerage & Water Board, et
21 Q. All right. 21 cetera --
22 A. His role was to be abreast of the 22 Q. Got you.
23 plans and specifications, and the contractor's, 23 A. -- the other entities. It shows who
24 McElwee Brothers', procedures and, um -- work 24 they need to speak to.
25 efforts taking place on a daily basis to assure 25 Q. They interact with the project
Page 171 Page 173
1 that all mechanisms -- and I say mechanisms 1 engineer and the inspector.
2 because there's a contract quality control plan 2 A. That's correct.
3 that McElwee Brothers submitted to the Corps 3 Q. Now, if I'm right, McElwee is supposed
4 for review and approval, and there were courses 4 to interact with the inspector.
5 that McElwee Brothers personnel had to attend 5 A. That's correct.
6 for contract quality control in relationship to 6 Q. Not with the project engineer.
7 the QA person, documents that need to go back 7 According to this chart.
8 and forth every day. And he would monitor all 8 A. That's not correct. Because the
9 the processes and alert his project engineer of 9 project engineer will -- his line extends down
10 any imperfections or things that need to be 10 to the inspector. So he has a right to talk to
11 concerned about. 11 anybody that the inspector talks to.
12 Q. All right. On this chart I don't see 12 Q. Do you have a right to call the
13 someone labeled quality assurance. I see the 13 project engineer or are you supposed to call
14 word inspector. Is that the same person? 14 the inspector?
15 A. That is the same person here, yes. 15 A. The inspector is on site, and if
16 Q. Okay. All right. And -- 16 there's a problem I contact the inspector. If
17 MR. LAMBERT: 17 the inspector is not available, then I contact
18 What's the chart from? 18 the project engineer.
19 MR. BRUNO: 19 Q. All right. Now --
20 The OLD documents. We've already 20 (Brief interruption.)
21 marked it. We haven't marked it, we 21 EXAMINATION BY MR. BRUNO:
22 have described it. I'm sorry. 22 Q. Okay. While you were doing the work,
23 EXAMINATION BY MR. BRUNO: 23 did you encounter -- I'm just going to hold
24 Q. So this middle line, that's the Corps 24 this up. Okay? This is Exhibit Number 5.
25 of Engineers personnel? 25 This is the Corps' manual on underseepage.

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1 Did you encounter issues that were 1 Q. Okay. All right. Now let's -- I
2 described by these course materials during the 2 should have done this before, and I apologize.
3 work that you did on the Dwyer Road project? 3 But the work that you contracted to do for the
4 A. Yes. 4 Corps was to install some large pipes on the
5 Q. Okay. Now, did you have a dialogue 5 batture, to make it easy, right?
6 with the United States Army Corps of Engineers 6 A. Yes.
7 on those issues? 7 Q. And they were going to be enclosed in
8 A. Yes. 8 some concrete, um -- culvert?
9 Q. All right. Now, let's start from the 9 A. Penetration of the T-wall, there was
10 beginning. You've produced to us this 10 some piping --
11 geotechnical investigation by Eustis. 11 Q. Right.
12 A. Yes. 12 A. -- and then the piping ended and went
13 Q. And we talked a little bit about that 13 into what's called a sluice gate structure
14 before. Maybe we didn't. I'm sorry. I think 14 where the gates can be mechanically opened and
15 you had suggested -- you'd requested some soils 15 closed to prevent backwater from coming from
16 information, you didn't get it. And then you 16 the canal into the pump station.
17 made a reference to the fact that at some point 17 Q. Okay.
18 later you may have gotten some additional 18 A. And from the sluice gate structure out
19 information. 19 to the canal was box culvert canal sections.
20 A. Yes. 20 Q. Okay. All right. So let's see.
21 Q. Okay. Just to kind of put us back in 21 There are three parts to this, right?
22 context. 22 A. Yes.
23 All right. What was the occasion 23 Q. There is the floodwall demolition and
24 after you started the work that you felt it 24 reconstruction, there is the sluice gate
25 necessary to ask the Corps for additional soils 25 construction, and there is the box culvert
Page 175 Page 177
1 information? 1 construction, right?
2 A. The occasion was during the design 2 A. Yes.
3 process of the temporary retaining structure, 3 Q. Which came first, second and third?
4 the sheet piling for the excavated hole, um -- 4 A. Actually, timing dictated it because
5 in the plans and specifications the Corps 5 of the non hurricane season and hurricane
6 required a design for dewatering, a dewatering 6 season.
7 system to be in place. 7 Q. Right.
8 In that process, Mr. Dixon needed to 8 A. So when we started initially, it was
9 know some soil parameters we call them, what 9 during August, that was non hurricane season,
10 types of soils are where. The borings were 10 but, however, because everything wasn't in
11 there, but the characteristics of the soils 11 place to begin the T-wall work for demolition
12 which are in other lab tests wasn't. And so 12 and getting it back up in a proper time frame.
13 McElwee Brothers went back to the Corps of 13 Submittals weren't reviewed by the Corps.
14 Engineers to request that information. And at 14 Coordination hadn't taken place. We didn't
15 that time, this is after the bid process, I 15 jump on the flood control structure then that
16 personally was informed that the Corps did not 16 was there, we went and did the excavation for
17 perform the soils testing relative to those 17 the box culvert canal section.
18 borings, it was done by Eustis Engineering who 18 Q. Okay. All right. So that was first.
19 were in concert with Design Engineering, Inc. 19 A. Yes.
20 to do the soils evaluation for the project. 20 Q. Now. And was that the event which
21 Q. Right. 21 suggested the need for the additional soils
22 A. And then I was given a copy of this 22 information?
23 report by one of the Corps of Engineers 23 A. That's correct.
24 representatives. He said, you can take this 24 Q. Okay. And again, the borings weren't
25 with you since we don't have that information. 25 enough, you needed to know more about the

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1 soils. And now, was that solely to assist you 1 Q. Well, I guess I got confused. I don't
2 in building the cofferdam or did it have 2 know if it was the dewatering or the box
3 anything to do with the potential for 3 culvert.
4 underseepage damaging the flood walls? 4 A. The dewatering. How did it change it?
5 A. It was to control seepage. 5 Q. Yeah.
6 Q. Okay. Which covered both of those 6 A. It actually didn't change it. It
7 issues, right? 7 just -- well, yeah, it did. It let us know
8 A. Yes. 8 that -- what size pumping system we need to put
9 Q. Okay. 9 in place, how many straws, at what intervals,
10 MR. BRUNO: 10 what size pump we needed to operate to keep up
11 I don't see a need to attach the 11 with the water flow that was expected to come
12 Eustis report. Does anybody want to 12 in that void --
13 attach it? Hearing no response, we 13 Q. Okay.
14 won't. 14 A. -- so we could size up the right
15 EXAMINATION BY MR. BRUNO: 15 equipment to handle whatever waters were
16 Q. Now, you now have the Eustis 16 penetrating the soils to keep from filling the
17 Engineering information. Did that solve your 17 void up.
18 problem with regard to this excavation for the 18 Q. Now, looking at the Eustis report, at
19 box culvert? 19 Page 16, under the subheading flood
20 A. No. 20 protection --
21 Q. Why not? 21 MR. TREEBY:
22 A. Because in that report we didn't have, 22 You now need to attach it.
23 um -- grain size distribution test analysis in 23 MR. BRUNO:
24 it. Mr. Dixon, at that point, as a design 24 Okay. I think I will. And let's
25 engineer, said, Melvin, I'm going to use worst 25 mark it as 8.
Page 179 Page 181
1 case scenario, what if the particle size 1 (Exhibit 8 was marked for
2 distribution was this size, and I'll design a 2 identification and is attached hereto.)
3 system based on that. So he utilized -- 3 EXAMINATION BY MR. BRUNO:
4 Q. Okay. 4 Q. Okay. Now, first of all, this may be
5 A. -- that scenario. Worst case. 5 obvious, but is it crystal clear that flood
6 Q. Bottom line is, the Eustis Engineering 6 protection was at least considered by Eustis
7 report did not give you sufficient information 7 Engineering in this report?
8 in order to assist you with the concerns that 8 A. Yes.
9 you had about underseepage, is that right? 9 Q. All right. Now, it says here, on the
10 A. That's correct. 10 T-wall, it says we -- they're talking about --
11 Q. Okay. And so he just assumed the 11 well, read it for me first.
12 worst case scenario with regard to particle 12 A. Which paragraph?
13 size and designed from that. 13 Q. Number 47?
14 MR. TREEBY: 14 A. Paragraph No. 47. T-wall stations 9
15 Object. 15 plus 15 to 10 plus 40. The sheet pile cutoff
16 A. Yes. 16 beneath the T-wall along the east side of the
17 EXAMINATION BY MR. BRUNO: 17 Jourdan Road embankment will be penetrated by
18 Q. Now, exactly how did that affect the 18 three new discharge pipes. In addition,
19 design, if you can tell us? 19 existing piles supporting the T-wall will be
20 MR. TREEBY: 20 removed to make room for the penetration of the
21 No objection there. 21 discharge pipes. An analysis of the t-wall
22 EXAMINATION BY MR. BRUNO: 22 with the full Jourdan Road embankment at
23 Q. In other words, the worst case 23 elevation 33.5 has been made assuming a storm
24 scenario, how did that change the design? 24 water level of 31.5. Results of these analyses
25 A. Design of the box culverts? 25 are presented on Figure 12. We have assumed

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1 batter piles will support the T-wall base at 1 So that's why they used 31.5.
2 elevation 18. Summing moments about the base 2 Q. Got you.
3 of the T-wall indicates the sheet piles must 3 A. The normal level would be fruitless.
4 penetrate to an elevation minus 6 and to the 4 We might as well not even have any levees or
5 top of the stratum 5. The top of this sand 5 I-walls if we're going to just do the normal
6 occurs at elevation minus 17 in the borings 6 level, because the normal level the swamps
7 drilled for the pump station just to the east 7 would just -- the water would rise and go out
8 of this project site. Therefore, we recommend 8 on it's own.
9 the sheet piles have a design tip at elevation 9 Q. All right. If you would, go to
10 minus 20 to ensure penetration of Stratum 5. 10 Page 18, Paragraph 52, talking about the
11 Q. So what's that all about? Why do you 11 I-wall.
12 want to make certain that the sheet pile tip 12 A. Page 18?
13 goes into Stratum 5? 13 Q. Yes, sir. It says here, the sheet
14 A. If I can go back to Exhibit 7 -- 14 pile should be welded to the discharge pipe
15 Q. Yes, you certainly may. 15 that passes through the wall to prevent seepage
16 A. -- it was to -- with the new design of 16 between the pipe and sheet pile. The sheet
17 the sheet piling that was here, to make sure 17 pile design should be carried at least ten feet
18 that it goes to the bottom of the sand layer -- 18 beyond the limits of the excavation for the
19 Q. All right. 19 southern most discharge pipe.
20 A. -- to create a cutoff wall. 20 In your view, does this also address
21 Q. That's right. 21 the seepage issues that you all were trained
22 A. The existing sheet pile was too short. 22 about when you took that course we've made so
23 Don't go back to that design elevation right 23 much reference to today?
24 here. 24 A. Yes.
25 Q. All right. Go deeper. 25 Q. Let's look at Page 19, Paragraph No.
Page 183 Page 185
1 A. Go deeper. 1 56. It says here, in addition to the ground
2 Q. All right. So do we have here, do you 2 water study recommended, the existing condition
3 believe, a paragraph that addresses very 3 of surrounding structures of the project site
4 specifically what is taught by the Corps in its 4 should be assessed. Our preliminary pressure
5 earth work quality verification training 5 relief assessments indicate structures within
6 course? 6 1,000 feet may be influenced by a pressure
7 A. Yes. 7 relief system.
8 Q. All right. Now, I also not that in 8 First, what is this pressure relief
9 order to conduct this analysis, the analysis 9 system that they're talking about?
10 wasn't done with the water at its normal level, 10 A. The pressure relief system is the
11 it was done with the water at a flood stage or 11 dewatering system that you put in place to keep
12 a storm stage, at 31.5. 12 the water from filling the void and messing
13 A. Yes, sir. 13 with other structures. You design something to
14 Q. Why would you do that? Why would you 14 pick that water up and discharge it in a
15 look at the storm level instead of the everyday 15 different area to levelize the water flow.
16 level of the water? 16 Q. Let me slow down with you now. So
17 A. There are engineering programs where 17 this is that situation where you dig a hole --
18 you can plug in different models, we call it, 18 A. Yes.
19 situations and scenarios, and the purpose for 19 Q. -- and you put sheet pile in place to
20 designing for that is, I guess over the -- 20 keep the water and the soils from dumping back
21 normally the Corps looks at a 100-year history 21 in the hole. Right?
22 of the worst case scenario. What's done 22 A. (Nods affirmatively.)
23 happened here before. So if we know what's 23 Q. And then you excavated what's inside
24 done happened here before. You design to that. 24 of this cofferdam is what they call it, right?
25 You don't design to anything less than that. 25 A. Yes.

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1 Q. Okay. So when you have a structure 1 feet of your site?
2 like that, are you supposed to do a ground 2 A. Yes.
3 water study? 3 Q. All right. Well, tell me, what
4 A. You have to. You should. 4 exactly are you -- it says, we recommend a
5 Q. You should. 5 series of settlement points be established
6 A. You're obligated. 6 within a thousand feet. What is that? What
7 Q. You're obligated. 7 are you doing when you establish a series of
8 A. I mean, as an engineer, you know, 8 settlement points a thousand feet from the
9 you're changing existing conditions. 9 excavation?
10 Q. All right. 10 A. You take the center point of your
11 A. So what do you need to do to stabilize 11 excavation and you sort of create a radius of a
12 the conditions you're working with. 12 thousand feet.
13 Q. What is a ground water study, and how 13 Q. Right.
14 does one do such a thing? 14 A. Whatever falls in that thousand feet
15 A. We go back to the soils borings and 15 radius, you set you some marks or monuments out
16 engineering reports, you know, looking at 16 there that you can come check every so often to
17 particle size distribution, looking at, um -- 17 see if you're having any impact on the ground.
18 water table contents in these soils borings, 18 Q. You know, as a lawyer, I've read about
19 um -- sticking in piezometers. You may take a 19 and heard about and experienced cases where
20 piezometer and go down to the sand layer and 20 contractors do pile driving. It's well known
21 measure the level of water that's coming up 21 that when you drive piles into the ground there
22 that piezometer. That will give you the head 22 is the potential that you might harm your
23 pressure on that flow. 23 neighbor's property and, as a result, you know,
24 Q. Right. Right. 24 they always say take pictures of the property
25 A. Um -- doing those type of things help 25 and do assessments to see whether or not that
Page 187 Page 189
1 you come about with your anticipations on what 1 pile driver is going to damage your neighbor 's
2 you need to do -- 2 property. I'm wondering whether or not, and
3 Q. Okay. 3 you tell me, please, if there is any similarity
4 A. -- while you're excavating that hole. 4 between the care that you take to make certain
5 Q. All right. Now, do you always need a 5 that you don't damage your neighbor's property
6 pressure relief system, or is that -- in other 6 from pile driving to the care that one would
7 words, every time you do an excavation like 7 take to make certain that you don't do any
8 we've just described, you're on the batture 8 damage to your neighbor's property if that
9 side, you're -- let's say you're within 9 piece of property happens to be close to a
10 100 feet of the floodwall, you're going 25 feet 10 flood control wall next to which is a batture,
11 down. Do you need a pressure relief system for 11 next to which is a waterway.
12 something like that? 12 MR. LEVINE:
13 MR. LEVINE: 13 Objection. Vague.
14 Objection. Hypothetical, vague. 14 MR. TREEBY:
15 A. If you are in navigable waterways, if 15 Objection. Vague, leading, no
16 you are dealing with Artesian spring systems 16 foundation.
17 underneath the surface, you should consider 17 EXAMINATION BY MR. BRUNO:
18 that. You must consider a relief -- water 18 Q. Is there any relationship between
19 relief. 19 those two things?
20 EXAMINATION BY MR. BRUNO: 20 MR. LEVINE:
21 Q. Now, there's a suggestion here that 21 Objection being compound and
22 within a thousand feet -- that's a big piece of 22 ambiguous.
23 ground, isn't it? I mean, a thousand feet. 23 MR. TREEBY:
24 A. Yes. 24 Same thing.
25 Q. With any structures within a thousand 25 MR. BRUNO:

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1 What's wrong with you? 1 wouldn't do it.
2 MR. TREEBY: 2 MR. BRUNO:
3 Leading. 3 To form?
4 A. Um -- there is a relationship, and it 4 MR. TREEBY:
5 goes back to ethics and, um -- codes of conduct 5 Yeah.
6 by professions. Anytime you're dealing with 6 MR. BRUNO:
7 impacting anything in the area, you ought to 7 Because clearly I can't help your
8 consider your impacts. 8 form. I've tried in vain, in vain, to
9 EXAMINATION BY MR. BRUNO: 9 change any question to handle --
10 Q. Right. Well, I guess what I was 10 MR. TREEBY:
11 asking you is that most people understand and 11 So we're reserving objections as
12 know about pile driving. In fact, on Page 22 12 to form just to get this thing moving.
13 of this very document, at Paragraph 63, it 13 Is that okay? I don't care.
14 talks about that. 14 MR. BRUNO:
15 A. Uh-huh. 15 No, I would like a chance to
16 Q. Take a look with me. It says, 16 change my form.
17 vibrations during installation of structures 17 MR. TREEBY:
18 and sheet piles my affect nearby structures. 18 Okay. I'll continue --
19 Okay? 19 MR. BRUNO:
20 A. Uh-huh. 20 I'm still going to -- it may be a
21 Q. I'm just wondering if excavating in an 21 vain, it may be just like, you know,
22 area on the batture next to a flood control 22 bearing my breasts and asking you just
23 project may affect nearby structures in the 23 to shoot me.
24 same way that pile driving -- 24 MR. LAMBERT:
25 A. Yes. Yes. 25 Wait, joe. No. Let's not go
Page 191 Page 193
1 MR. TREEBY: 1 there.
2 Objection. Same objections we 2 (Off the record.)
3 made before. 3 EXAMINATION BY MR. BRUNO:
4 MR. BRUNO: 4 Q. All right. That's all we have on
5 It's noted, man. It's noted. 5 that. We've marked it, let's move on.
6 MR. TREEBY: 6 What is the next water seepage issue,
7 Well, I've got to make it. I'm 7 if any, that arose during the work? We talked
8 sorry. 8 about the -- you know, the dewatering system.
9 MR. BRUNO: 9 What came up next?
10 It's noted. 10 A. There was a couple of other issues.
11 MR. TREEBY: 11 During the demolition of the, um -- T-wall, we
12 Do you want me give me a 12 excavated through some humus material, that's
13 continuing objection to every 13 material full of organics, old trees, limbs,
14 question? 14 stumps -- in fact, we have some photos that I
15 MR. BRUNO: 15 think we give to you all and also to -- to IKON
16 Yeah. 16 for anybody that wanted copies on the
17 MR. TREEBY: 17 plaintiffs and defendants side, showing tree
18 You'll stipulate that I can 18 limbs and trunks and water just dripping from
19 assert it, I don't have to do it 19 it.
20 literally? 20 Q. Let me slow you down. I think you've
21 MR. BRUNO: 21 produced that, so let's see if we can find it.
22 Absolutely, baby. You just knock 22 Didn't you do a little -- a paper?
23 yourself out. 23 A. Yes, sir.
24 MR. TREEBY: 24 Q. And in that paper, you --
25 I asked about it earlier. You 25 A. May I make a correction? My son did a

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1 paper while he was at Grambling State 1 side --
2 University. 2 Q. Right.
3 Q. Oh, this is your son. 3 A. -- to assist with some of the
4 A. Yes. 4 dewatering at those levels.
5 Q. Okay. Well, I'm sorry. I thought -- 5 Q. All right. Now, what phase of the
6 let's take a quick peak. I guess we'll look at 6 project does that photograph depict?
7 it for the sole reason of seeing if these 7 MR. TREEBY:
8 photographs that he has attached are the ones 8 What page are we on, please?
9 that you were referencing. It's Page 8. 9 A. Page 8 of 13.
10 A. Yes. Yes. Those are job site photos 10 MR. BRUNO:
11 by McElwee Brothers on this project, Dwyer Road 11 8 of 13. The first photo. It's
12 project that we're talking about. And you can 12 the one with the page with only one
13 look at -- they're in color, the original 13 photo on it.
14 photos, but if you look at the soils, you can 14 MR. TREEBY:
15 see it's old coffee ground material, we call 15 No, I was just confused because
16 it. And you can find branches, tree trunks -- 16 the next one says 9 of 14. Whatever.
17 it was not foundation material to be used back 17 A. Okay, it says 8 of 13 on the page I'm
18 in the finished structure. So it's stuff we 18 looking at.
19 had to haul off. 19 EXAMINATION BY MR. BRUNO:
20 Q. All right. So I only show it to you 20 Q. Anyway, what phase of the work does
21 to show that we have photos and these are the 21 that photograph depict. Is that the sluice
22 photos, so I'm going to mark this entire 22 gate, the demolition of the T-wall?
23 document as McElwee number -- 23 A. This is the box culvert section. In
24 MR. LEVINE: 24 fact, we're looking at the Inner Harbor
25 9. 25 Navigational Canal. You see the dolphin
Page 195 Page 197
1 MR. BRUNO: 1 structure out there?
2 It's 9? 2 Q. Yes. So this is that excavation which
3 (Exhibit 9 was marked for 3 prompted the request for the additional soils
4 identification and is attached hereto.) 4 evaluation, right?
5 Q. 9. Okay. But again, you didn't write 5 A. That's correct.
6 this paper, your son wrote the paper. 6 Q. All right. Look at the next page
7 A. No, my son wrote the paper with my 7 which has a couple of more photos. Is that the
8 assistance. I helped him out as far as 8 same, um --
9 whatever he needed. He did his own wording and 9 A. Same excavation?
10 review of the project documents and stuff like 10 Q. -- same excavation?
11 that. 11 A. Yes, sir.
12 Q. Okay. Just -- 12 Q. Okay. Thank you.
13 A. I did check it and I can stand behind 13 MR. LEVINE:
14 it. I can tell you that. 14 Joe, just to be clear, these are
15 Q. Of course. But let's see. First 15 all on this job site?
16 photo is at Page 8. What is that a photo of? 16 MR. BRUNO:
17 A. This explains it on that Page 8 of 13, 17 Yes.
18 McElwee Brothers' photo of a temporary 18 A. Yes.
19 retaining structure excavation. It shows the 19 MR. BRUNO:
20 sheet pile wall, the whalers and the 20 That's what we just established.
21 cross-bracing to hold the hole open, and 21 THE WITNESS:
22 there's a track hoe boom in the picture 22 Those are all photos of the Dwyer
23 excavating the soil. You can also see a pump 23 Road --
24 to the left of the picture -- well, middle of 24 MR. BRUNO:
25 the picture almost, looks like, but on the left 25 Those are all photos of the job

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1 site. And we just went through where 1 there's meetings -- biweekly meetings, status
2 it was. That's fine. Let's move on. 2 meetings that were being held. We'd have to
3 EXAMINATION BY MR. BRUNO: 3 come to the Corps and tell them what evaluation
4 Q. Okay. Now -- okay, I thought perhaps 4 McElwee Brothers found.
5 we -- and I brought up the pictures because I 5 Q. Get some questions answered.
6 thought we had -- I thought I remember seeing a 6 A. And there did come a point with the
7 picture of the organic material underneath the 7 dialogue where we sat with the engineer and
8 T-wall demolition. 8 said, look, we got some concerns.
9 A. You did. You did. It's in some -- 9 Q. Let's start with this: The contract,
10 something I submitted to you all. And I 10 did it call upon McElwee Brothers to remove the
11 submitted to -- 11 pile? Just flat out yes or no?
12 THE WITNESS: 12 A. The documents weren't clear. That was
13 That I submitted to IKON that's 13 one of the questions we had on the project.
14 on that disk, Mr. Treeby? 14 Q. All right. Did the specifications
15 MR. TREEBY: 15 reflect that there were piling there in the
16 Okay. 16 ground?
17 A. That's where those are. 17 A. Yes.
18 EXAMINATION BY MR. BRUNO: 18 Q. Did the specifications indicate to you
19 Q. Okay. Well, I can't put my hand on it 19 what you were supposed to do when you
20 at the moment. But anyway, let's just -- let's 20 encountered those piling?
21 just go to a continuation of your description 21 A. No.
22 of the problems you were having with the soils. 22 Q. Okay. All right. Now, is this the
23 Now, you got so far as you were 23 point where McElwee brings his engineering
24 demolishing the old T-wall and encountered a 24 experience and his own training and his
25 lot of organic materials below that foundation, 25 knowledge of soils to the table?
Page 199 Page 201
1 and then I think you were about to tell us what 1 A. Yes.
2 the issue then became. 2 Q. All right. Now, so you see these
3 A. Um -- reevaluation of our dewatering 3 piles.
4 system such that we could maintain a stable 4 A. Yes.
5 excavation right at the T-wall. Um -- we also 5 Q. What are you concluding when you see
6 ran into some problems during the extraction of 6 these things down there based upon your
7 the concrete piles from underneath the T-wall. 7 knowledge of the seepage issues and the like?
8 McElwee Brothers and the Corps was not definite 8 A. Um -- my conclusion at that point,
9 on the existing length of the concrete piles 9 during a status meeting, was to -- we took --
10 under the T-wall, but there was concern that 10 McElwee Brothers took measurements. Its
11 the piling probably penetrated a sand layer 11 quality control personnel and superintendent
12 that was probably charged, meaning from the 12 took measurements and they brought them to the
13 canal pressure on it, and we were going to 13 table. We sat with the Corps of Engineers and
14 extract these piles, and we wanted to try to 14 said, we have some concerns. The specs called
15 define the lengths and after we pulled the pile 15 for demolition of the T-wall, but it doesn't
16 what procedures were going to be used to fill 16 get into specifics on the demolition. It
17 the voids. 17 didn't tell us what to do with the piles, and
18 Q. No, you're saying we here, and what I 18 we offer a recommendation to Corps at that
19 really need to understand is, is this McElwee 19 time. We offered a recommendation that we just
20 Brothers who is undertaking this evaluation, or 20 cut the piles off. Leave them in place.
21 is it a dialogue that you're having with the 21 Because we were concerned that we didn't
22 Corps? 22 know -- McElwee Brothers, we, didn't know how
23 A. It's McElwee Brothers taking on the 23 long the existing piling were, and if they were
24 evaluation, but there was some -- at the same 24 protruding into a sand layer that was charged
25 time, the inspector is out there, and then 25 by the canal system, we were afraid if we

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1 pulled a pile and it was charged that we could 1 trying to bring to the Corps?
2 have seepage that could turn into something 2 A. No. He had no knowledge of it.
3 potentially uncontrollable right at the 3 Q. Okay. Now, all right. So did the
4 floodwall. 4 Corps accept your recommendation to cut the
5 Q. Okay. Could that damage the flood 5 piles?
6 protection structure? 6 A. They teetered on it and then rejected
7 A. That could have damaged the city of 7 it ultimately as a result of Mr. Holtgreve
8 New Orleans. 8 mentioning in one of the status meetings that
9 Q. Okay. 9 he ever intended for the piling to be cut off.
10 A. Because we already demolished the 10 Q. All right. Holtgreve is the guy from
11 wall, and then we're pulling a pile, and if 11 the design --
12 water starts to come out of that hole we can't 12 A. Design Engineering, Inc.
13 stop. 13 Q. Okay. So he says all right. So the
14 Q. All right. Now, let me ask you this: 14 design guy comes in and says, wait a minute,
15 Can you tell me whether or not the 15 now, I fully expected these things to be
16 specifications were reasonably specific in 16 pulled, and so the decision was made to pull
17 order for you to ascertain as a contractor what 17 them.
18 you were supposed to do when you encountered 18 A. That's correct.
19 these piling? 19 Q. Okay. Now, now we have a new problem
20 A. No. They didn't. 20 though, right?
21 Q. Now, and can you tell me whether or 21 A. Yes.
22 not the Corps evidenced to you some 22 Q. Now we have voids.
23 understanding as to the potential for 23 A. Yes.
24 underseepage damage that may have occurred by 24 Q. Okay. So who -- well, first of all,
25 pulling these piles? 25 was there a recognition by anyone in that
Page 203 Page 205
1 A. Repeat that, please. 1 meeting that there may be a problem associated
2 Q. All right. Did you believe that in 2 with pulling the piles period?
3 your conversations with the Corps about whether 3 MR. TREEBY:
4 to pull or not pull piles that the Corps 4 Asked and answered.
5 understood the problem the way you understood 5 Go ahead.
6 the problem? 6 A. Yes, there was a person in the
7 A. In a meeting, when I presented the 7 meeting.
8 problem, their geotechnical expert Mr. Vocovich 8 EXAMINATION BY MR. BRUNO:
9 fully understood what I was saying, because 9 Q. And that was you.
10 nobody else in the meeting understood it. 10 A. No.
11 Everybody was looking like, what is he talking 11 Q. You? I mean Vocovich.
12 about? Mr. Vocovich says, he has a valid 12 A. Vocovich, yes.
13 point. 13 Q. He knew, but you knew, too.
14 Q. Now, Vocovich is who? He's not the 14 A. I knew, too.
15 quality assurance person; right? 15 Q. So two of you.
16 A. No. 16 A. Yes.
17 Q. Who is Vocovich? 17 Q. All right. Now, after the decision
18 A. At that time, he worked for the United 18 had been made to pull the piles. Okay? Did
19 States Army Corps of Engineers New Orleans 19 Vocovich indicate to you what should be done to
20 District in its engineering division. 20 address the problem, or did you indicate to
21 Q. Uh-huh. Right. 21 Vocovich what needed to be done to address the
22 A. Geotechnical section. 22 problem?
23 Q. Got you. Did the quality assurance 23 MR. TREEBY:
24 person evidence to you a working understanding 24 Object to the form of the
25 and/or knowledge of the issues that you were 25 question.

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1 A. I informed everyone at that meeting 1 Q. Good.
2 that the specs did not address the problem. 2 A. Plus or minus a year.
3 And Mr. Vocovich concurred, and the rest of 3 Q. Fair enough. Okay. Now, and over
4 everybody else concurred. And they amended -- 4 what area, in other words, did you experience
5 they did a change order, because amendments 5 this, you know, bentonite coming up out of
6 come before. But a change order came out 6 another hole?
7 directing McElwee Brothers to inject bentonite 7 A. I say forty feet. We was on one hole
8 into the voided holes. 8 and injected the bentonite, and we saw it come
9 EXAMINATION BY MR. BRUNO: 9 up two or three holes down.
10 Q. Okay. Where did that come from; in 10 Q. Okay. All right. Now, what if
11 other words, who made the suggestion that 11 anything did that say to you as a person who's
12 bentonite be put in the voids? 12 been schooled about underseepage problems?
13 A. The Corps mentioned it, I was familiar 13 A. At that time, it said to me that there
14 with it because that's what we've always -- I 14 was conditions underneath the surface that
15 say, we. Now in this situation, the Corps, 15 allowed water to flow freely. Why? We didn't
16 when I worked for them, always did with voids, 16 know. It prompted us to call in Gore
17 is fill them with bentonite. 17 Engineering to do a soil boring right near that
18 Q. Okay. All right. So that there's a 18 area, to check the conditions of the soils and
19 dialogue, one, there is an underseepage problem 19 compare it to the plans and specifications.
20 created by the removal of piles, there is a 20 Q. All right. Now, who is the we there?
21 decision made, initiated by the Corps to inject 21 Is that McElwee Brothers or is that the Corps,
22 bentonite. 22 or is that the result of a collaboration
23 A. Yes. 23 between McElwee and the Corps?
24 Q. Okay. All right. Did you do that? 24 A. Strictly McElwee Brothers only.
25 A. Yes, we did. 25 Q. All right. And what did the Gore
Page 207 Page 209
1 Q. And did that exercise reveal any other 1 testing reveal?
2 problems or issues? 2 A. The Gore boring at that location
3 A. Yes, it did. 3 indicated high water contents in the soil
4 Q. And what did that exercise reveal? 4 stratums, much higher than the plans --
5 A. It revealed that we -- during the 5 Q. And specs.
6 excavation of the T-wall, which was 6 A. -- and specs had illustrated. And
7 approximately 40 feet wide, when we injected 7 that all sort of happened around the same time
8 bentonite in one hole, it traveled underneath 8 frame after we filled the holes. We drove some
9 the ground surface and came out of another 9 piling, and there was an issue with cracked
10 hole, which was totally unanticipated and 10 pilings.
11 showed that soils were not homogeneous beneath 11 Q. Right.
12 the surface at that depth. 12 A. And it kind of like all happened at
13 Q. Okay. First of all, what year is 13 the same time, and it got us focusing on some
14 this? 14 very pertinent issues.
15 A. Now, today? 15 Q. Okay. All right. Well, I understand
16 Q. No. I know you're testing me, and I'm 16 about the cracked piles. Did the Gore borings
17 going to fail. I mean what -- 17 take place before you encountered cracked piles
18 A. At that time, that was -- 18 or afterwards?
19 MR. TREEBY: 19 A. Afterwards.
20 You saved me from making the same 20 Q. All right. So the bentonite injection
21 objection. Thank you, Mr. McElwee. 21 and cracked pile issue, were those coexistent?
22 EXAMINATION BY MR. BRUNO: 22 A. Yes.
23 Q. In what year did that occur? 23 Q. Then let's talk a little bit about the
24 A. That occurred in 2002, if my memory 24 cracked pile issue. Where were you driving
25 serves me correctly. 25 piles, underneath the T-wall?

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Page 210 Page 212
1 A. Yes. 1 the hammer is too heavy, as a response, to try
2 Q. Okay. I see. Tell us what the issue 2 to place blame on why the driving was easy.
3 was with the contracted piles. 3 Q. Sure.
4 A. When we initially started driving -- 4 A. And then Mr. Vocovich said, you all
5 McElwee Brothers, we. When McElwee Brothers 5 reviewed the hammer, so if it's too easy, whose
6 initially began driving the new piling for the 6 fault is it? And then dialogue went around,
7 T-wall, new T-wall, I think -- I believe it was 7 and then somebody blurted some piling are
8 a weekend, a Saturday, Mr. Vocovich came out to 8 cracked. And that's what came back to McElwee
9 observe the pile driving operation. And during 9 Brothers from the Corps, that there's
10 the first installation of the first pile, the 10 anticipation that piles are cracked.
11 pile went down easy. 11 And when driving concrete piling, if
12 Now, I didn't know it at the time, 12 you get a crack or a fracture, normally what
13 because I was in the office. Mr. Vocovich, I 13 happens, it will break and drive down right
14 saw him observing the pile driving operation. 14 inside itself very, very easy.
15 And then he scratched his head and walked off. 15 Q. I understand.
16 And I asked him how things were going. And he 16 A. But McElwee Brothers said, well, how
17 said, it's okay. But to me, I kind of felt 17 did you draw the conclusion? Because we don't
18 something was going to be behind it. It wasn't 18 see it. We did not see it where it looked like
19 his normal reaction. 19 it broke during the process.
20 Q. Something was up. 20 So immediately, um -- the Corps said
21 A. Something was up. 21 they wanted to perform some testing. And
22 We continued the drive piling, and on 22 McElwee Brothers said, okay, we're going to
23 the Monday, the following Monday, there was 23 assist y'all with the testing. Because of my
24 word given back by the quality assurance 24 experience, I knew the Corps dealt with GRL,
25 representative, or the inspector, that there 25 which is a design engineering firm in -- up in
Page 211 Page 213
1 was a problem with the pile driving and that 1 north America, I can't think of what state
2 the Corps had anticipated that piling were 2 they're from -- they're all over, really, and
3 cracked. 3 most state agencies and the government utilized
4 Well, McElwee Brothers said, hey, how 4 their expertise when it comes to subsurface
5 do you come to that conclusion that piling were 5 geotechnical analysis and pile driving.
6 cracked? McElwee Brothers learned later that 6 So we contacted them and say, hey,
7 Mr. Vocovich called a meeting, or the Corps 7 y'all need to fly somebody in to do some
8 called a meeting, with Design Engineering, 8 testing on all of these piling to tell us the
9 Inc., Eustis and their design engineering 9 status of the piles. And testing was performed
10 section to discuss the problem, and 10 and there were a couple of piles that were
11 Mr. Vocovich asked them, in the meeting, what's 11 cracked, but the crack was not a fracture, what
12 the problem, guys? This pile went down too 12 they thought. The cracks can potentially
13 easy. 13 happen during the transportation process, you
14 Now, there is an anticipation of, if 14 know, hairline cracks, some that may not affect
15 you know the soil conditions, when you're 15 the integrity of the pile as far as its
16 driving piling that the hammer is going the 16 placement and its engineering function.
17 react a certain way. 17 Q. Sure.
18 Q. Exactly. Obviously the more 18 A. So we agreed that, hey, there were
19 difficult -- 19 some cracks, but -- McElwee, we, agreed that
20 A. The stiffer the soil, the harder the 20 there were some cracks, but we wanted to hear
21 driving. 21 from the Corps what do you anticipate doing
22 Q. More hammer hits. 22 about it, you know?
23 A. More hammer hitting. And it was just 23 And so the Corps came back and said,
24 tapping them in very, very easy. When he asked 24 well, McElwee, y'all design a new floodwall
25 that question, I think Eustis engineers said, 25 system for the problem. And that's where we

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Page 214 Page 216
1 were at odds. Because McElwee Brothers took 1 Q. I'm going to show you a document which
2 the position and told the Corps we're not a 2 is going to be marked McElwee Exhibit Number
3 design engineering firm and we're not going to 3 10. This is just -- would this be fair -- are
4 design your floodwall. 4 you familiar with this document? Let me ask it
5 And I myself was, later on, after this 5 that way.
6 meeting and all of that, in a conversation with 6 (Exhibit 10 was marked for
7 the contracting officer. When I mentioned to 7 identification and is attached hereto.)
8 her at that time -- her name is Mrs. Diane 8 A. It's an internal memorandum in the
9 Picou. I said, Ms. Picou, back during Betsy 9 Corps. I'm familiar with the items on the
10 when I was born my aunt was flooded in New 10 document but not the document itself, because I
11 Orleans, the Ninth Ward, and she refused to 11 didn't -- I never saw this as a contractor.
12 live here now, she lives in Wisconsin. And I 12 EXAMINATION BY MR. TREEBY:
13 said, McElwee Brothers is not going to have its 13 Q. As a contractor?
14 name on any design that could potentially flood 14 A. No, this is an internal memorandum,
15 the city. 15 memorandum through the area engineer for
16 And so we decided not to do it, and 16 construction division for project management
17 that's when the Corps said, hey, you're 17 section. This stays with the Corps. That's
18 terminated. Not immediately on that telephone 18 how I know that.
19 conversation, but a couple weeks later. 19 Q. Okay. But your answer was I never saw
20 Q. Shortly thereafter. 20 this as a contractor. What do you mean?
21 A. Yes. 21 A. Well, I worked for the Corps of
22 Q. I take it then you had no other 22 Engineers, so I saw their memorandums. This
23 underseepage issues with the Corps after that. 23 particular document is about the contract that
24 Right? 24 I was working on as a contractor. Okay? The
25 A. No. They ended at the point. Thank 25 Dwyer Road job. I never saw internal
Page 215 Page 217
1 God. 1 memorandums in the Corps.
2 Q. All right. Okay. 2 Q. No, this is March 26, 1990. This is
3 (Brief recess.) 3 when you were an inspector for the Corps. You
4 EXAMINATION BY MR. TREEBY: 4 see that at the top? You see the date at the
5 Q. Mr. McElwee, my name is William 5 top?
6 Treeby. I represent Washington Group 6 A. Oh, okay. I'm sorry, sir. I'm
7 International. You and I have talked on the 7 thinking this had to do with -- yes, sir.
8 telephone once or twice, and I have a few 8 Q. And if you would turn over to Page 5
9 questions for you. 9 at the bottom which bears Bates number
10 A. Yes. 10 NED-049-000008274, in fact there's a reference
11 Q. You indicated you have two sons. What 11 to you at the bottom of Paragraph Number 10.
12 are their names? 12 Do you see that?
13 A. Melvin Millard Louis McElwee, Jr., and 13 A. That's correct, sir.
14 Millard Louis McElwee. 14 Q. Do you remember this job at all?
15 Q. Okay. Is your son who is named 15 A. Let me read it for a second if that's
16 junior, what is his age? 16 okay.
17 A. He's 21. 17 Q. I'm not going to have a lot of
18 Q. Did he work on the project at Dwyer 18 questions about it. I really don't. I just
19 Road? 19 want to ask a general question.
20 A. No, sir, he didn't. 20 A. Yes. I remember the Seabrook
21 Q. Okay. I believe your testimony is 21 floodwall, yes. I remember -- who was on this?
22 that you worked as an inspector for the Corps 22 River Road Construction? I remember it. I was
23 of Engineers in the late eighties and early 23 on it for just a little while, yes.
24 nineties. Is that right? 24 Q. Would you in your function as an
25 A. That's correct, sir. 25 inspector, would you typically -- would you

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Page 218 Page 220
1 typically get a copy of a document like this on 1 course of mediation, private mediation,
2 a job that you had been the quality control 2 Tricor's bonding company's attorney wanted to
3 inspector? 3 depose me.
4 A. No. 4 Q. Okay.
5 Q. Okay. Have you ever been deposed 5 A. And it happened.
6 before today? 6 Q. Okay. Was there a lawsuit filed by
7 A. Yes. 7 McElwee Brothers in that matter?
8 Q. How many times? 8 A. Yes, in Baton Rouge, in the 19th
9 A. Three? Three to four times. 9 Judicial District.
10 Q. Do you recall what they involved? 10 Q. And when was -- has that been resolved
11 Could you take them one at a time and tell me 11 or is it still pending?
12 what they involved? 12 A. That's been resolved. Just recently
13 A. Okay. The first one was when I worked 13 resolved.
14 for the Corps of Engineers, I was involved in 14 Q. And who was your lawyer?
15 an accident. Somebody rear-ended me, and my 15 A. Cassandra Butler.
16 attorney had me -- well, a deposition was held, 16 Q. Is she in Baton Rouge?
17 and my attorney was in the room at the time 17 A. No. She's in Independence, Louisiana.
18 relative to that. 18 Q. Okay. Have you ever been a party to
19 Q. Who was your attorney? 19 litigation in the past?
20 A. Lestelle and Lestelle was the firm. 20 A. Oh, quite a few.
21 Terrence Lestelle was the attorney at that 21 Q. Other than the one you've just talked
22 time. 22 about?
23 Q. Okay. 23 A. Quite a few times.
24 A. Um -- there was another deposition 24 Q. Okay. How many times?
25 dealing with a bonding company, um -- Great 25 A. Um -- can I start from the bottom and
Page 219 Page 221
1 American Insurance, Shields, Mott & Lund. The 1 come forward?
2 Corps of Engineers deposed me at that time. 2 Q. Sure. Any way.
3 Q. Okay. 3 A. Um -- prior to McElwee Brothers coming
4 A. Um -- there was a deposition I held 4 into existence, I used to run a company Oxy
5 relative to negotiations in another project for 5 Aqua Filter System, sole proprietor, and I
6 the, um -- LSU recreational fields. It was 6 began to do construction in that name. O-X-Y,
7 concerning, um -- a lien that McElwee Brothers 7 there was a star, a little star -- asterisk in
8 had on the job, and the opposing counsel wanted 8 the middle, Aqua, A-Q-U-A, Filter Systems, Inc.
9 to deposition me. So I was in that on. 9 I'm sorry. It wasn't incorporated. It was a
10 And this one. I might be missing 10 sole proprietorship. At that time, I bidded a
11 something, now, but that's my memory right now. 11 contract with the State of Louisiana. The
12 I can tell you that. 12 state -- I was a licensed contractor at that
13 Q. Okay. This job that there you said 13 time, was young, and the state was -- some of
14 McElwee Brothers -- I want to make sure I get 14 the personnel in the state was kind of
15 the pronunciation right. I've been pronouncing 15 fascinated that I was a young man with a
16 it wrong in my own head, so you'll have to 16 license to be in construction work, and they
17 forgive me if I have a lapse. 17 yanked that contract from me with no rights to
18 McElwee filed a lien against UNO? 18 do so. I had a bond for it and bid the job,
19 A. No. No. McElwee Brothers filed a lien 19 and they said you don't have a license to do
20 against a project in Baton Rouge in which LSU 20 it.
21 had some recreational felids installed in an 21 So litigation was filed to, um -- get
22 old cow pasture. McElwee was performing work 22 a writ of mandamus against the state to make
23 for Tricor Properties in Baton Rouge, and there 23 them comply with their own administrative
24 was some monies owed, and McElwee Brothers 24 rules. I was acting in pro se on that.
25 filed a lien at the end of the job, and in the 25 Q. And where was that?

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Page 222 Page 224
1 A. That was in the 19th Judicial District 1 Q. I think I've identified some of these.
2 Court. 2 Let me show you a document we've marked McElwee
3 Q. And I assume that was resolved at some 3 Exhibit Number 11 and ask if that is a document
4 point? 4 you're familiar with in connection with the
5 A. The writ of mandamus was issued to 5 appeal; of a contract decision against McElwee
6 compel the state to do what they were supposed 6 Brothers and Great American Insurance Company
7 to do, yes. 7 in connection with the Dwyer Road project.
8 Q. Okay. And the next, coming forward? 8 (Exhibit 11 was marked for
9 A. Um -- there was a -- in Vidalia, 9 identification and is attached hereto.)
10 Louisiana, there was a bond claim on a project 10 A. Yes, sir.
11 with the state for Oxy Aqua at that time. That 11 EXAMINATION BY MR. TREEBY:
12 litigation, I was involved in that one, that 12 Q. Are you familiar with this document?
13 was a bonding company suing me, and I had to be 13 A. I'm familiar to the degree of knowing
14 present with the suppliers to deal with some, 14 that the bond company filed a complaint. And I
15 um -- bonding issues in Vidalia. 15 did see a draft of this, but I never saw the
16 Q. Who was the bonding company? 16 filed copy.
17 A. Transamerica. 17 Q. You say you saw a draft. How did you
18 Q. And who was the defendant? 18 come to see a draft of it?
19 A. The defendant was everybody, the 19 A. Elizabeth Gordon who works for
20 state, myself, um -- myself meaning Oxy Aqua 20 Shields, Mott & Lund sent the document to me,
21 Filter Systems. Um -- there was two other 21 asked me to review it before she filed it. We
22 vendors, River -- Terrell River Services was 22 had some discussion, but I wasn't -- she was
23 one. There was another company, I can't think 23 the controlling factor in that. What she put
24 of their name. It's been a while. 24 in it afterwards I don't know. All I know is I
25 Q. Okay. Who was your attorney in that 25 spoke with her, had some input, and then it was
Page 223 Page 225
1 matter? 1 filed.
2 A. In that matter I was pro se. 2 Q. Was there a legal proceeding, a
3 Q. Okay. Next one? 3 hearing or anything in connection with that
4 A. There was -- on this particular -- 4 proceeding before the Armed Services Board?
5 well, I'm saying this particular. McElwee 5 A. Yes. There was, um -- several issues
6 Brothers, dealing with the Corps of Engineers 6 brought before the Armed Services Board of
7 on that project, there was some litigation 7 Contract Appeals relative to that job
8 involved with that. The bonding company was 8 concerning the Corps' administration of that
9 the plaintiff, Great American Insurance, 9 contract and refusal to cooperate with the
10 against McElwee Brothers, Try-State -- not 10 contractor that were filed with the Armed
11 Tri-State, but, um -- Ronald Davis, Beverly 11 Services Board of Contract Appeals.
12 Davis and myself, in the Eastern District of 12 Q. I'm going to show you a document that
13 Louisiana here in New Orleans. There was, 13 we've marked McElwee Exhibit Number 13 and ask
14 um -- a lawsuit filed by the bonding company 14 you if this is the draft that you saw of the --
15 relative to the Corps of Engineers project. I 15 A. 13?
16 was involved in that litigation. And in that 16 (Exhibit 13 was marked for
17 litigation there was several attorneys, there 17 identification and is attached hereto.)
18 was one for the joint venture, because 18 EXAMINATION BY MR. TREEBY:
19 Try-State Design Construction Company and 19 Q. Yes.
20 McElwee Brothers did a joint venture under that 20 A. Can I say it's similar? I can't
21 agreement for McElwee Brothers to perform that 21 verify and tell you after looking at this for a
22 contract. So there was a joint venture 22 few seconds that it is the same one other than
23 attorney, there was a McElwee Brothers 23 to compare it with the one that I had, you know
24 attorney, and I myself acted Pro Se on behalf 24 what I'm saying, at my office, but it looks
25 of myself in that same litigation. 25 similar, yes.

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Page 226 Page 228
1 Q. I don't know if it would help you, but 1 A. Sylvia Hurst? That's my wife. My
2 I can tell you the source of this document was 2 boss.
3 not you but was Dr. Bea in his production to 3 Q. Okay. And Try-State Design
4 us, and the indication was it came from you. 4 Construction Company, Inc., who is that?
5 And I would ask you to turn -- there's several 5 A. Try-State Design Construction Company
6 handwritten notes in it that might help you 6 is a firm out of Pennsylvania owned by Ronald
7 identify it, um -- I'm not sure, but I have 7 U. Davis who brought the financing and the
8 some reason to believe that these may be your 8 bonding to the project at the Dwyer Road.
9 handwritten notes. For example, Page -- I see 9 Q. Was Tri-State Design Construction
10 one on Page 14, I see some on Page 15, and I 10 Company, Inc. the other member of the joint
11 see some on Page 16. 11 venture that did the Dwyer Road project?
12 A. Okay. Those are my handwritten notes. 12 A. Yes.
13 But you say Dr. Bea. Dr. Bea wasn't involved 13 Q. Okay. There's a request for -- this
14 in this at this point. I don't know about 14 pleading is a request for temporary restraining
15 that. I'm not aware of that. 15 order, preliminary and permanent injunction,
16 Q. Well, he indicated -- his production 16 specific performance and declaratory judgment.
17 of this document indicated to us that he got it 17 In fact, was a preliminary and
18 from you. 18 permanent injunction issued by Judge Duval in
19 A. Okay. Fine. Now I can tell you that 19 this matter?
20 this is that document. Yes. I can answer 20 A. A preliminary injunction was issued.
21 that. I didn't know where it came from. I 21 A permanent injunction, no.
22 didn't know if you got it from Shields, Mott & 22 Q. Were there sanctions issued against
23 Lund and it was a little bit different. I can 23 you personally in this matter for failing to
24 tell you Dr. Bea gave you this, this is a 24 cooperate with Great American Insurance
25 document that McElwee Brothers saw and is 25 Company?
Page 227 Page 229
1 familiar with. 1 A. Yes.
2 Q. So you recall providing Dr. Bea with a 2 Q. Now, I don't know if you had
3 copy of this draft? 3 completed -- had you completed, as best you
4 A. Dr. Bea gave you this, I can verify 4 could recall, the list of litigation that you
5 that that is my corrections in this document, 5 had been involved in, or your company had been
6 and that if he got it -- you got it from him, I 6 involved in?
7 provided it to him. 7 A. I hadn't completed it, but I mean,
8 Q. Okay. And I'm going to show you a 8 whatever you go over I'll verify whether it
9 document that I think you referred to a minute 9 was --
10 ago. I've marked it McElwee Exhibit Number 12, 10 Q. Well, why don't you complete it, and
11 which I believe is a copy of the complaint 11 then -- I may know about some of them and not
12 filed against McElwee Brothers and others 12 others, so why don't you complete the list.
13 including you personally in the Eastern 13 A. Well, I think between what I said and
14 District allotted to Judge Duval, actually. 14 then what you've just brought out, I think that
15 (Exhibit 12 was marked for 15 is basically all of it that I know of at this
16 identification and is attached hereto.) 16 point.
17 A. That is correct. This is the initial 17 Q. Okay. Do you recall a proceeding
18 documentation submitted to the Court on behalf 18 brought by one Timothy Miller against McElwee
19 of the bonding company through Shields, Mott & 19 and the Corps of Engineers?
20 Lund. 20 A. I am familiar with that. That was
21 EXAMINATION BY MR. TREEBY: 21 brought through an insurance company. The
22 Q. Okay. We've identified -- you've 22 insurance company handled that one. They sent
23 identified some of those entities that were 23 documents to me and I conversated [sic] with
24 named in this suit, but I want to ask you about 24 them, but I never was involved in it other than
25 Sylvia Hurst. Who is Sylvia Hurst? 25 to tell them, here are the contract documents

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Page 230 Page 232
1 and our records don't show Mr. Miller being on 1 the suit that I mentioned earlier, brought by
2 the project. Purportedly he worked for some 2 you and McElwee Brothers against Ronald Davis
3 firm, a service firm, and got hurt on the job. 3 and Tri-State Design. It's McElwee Exhibit 14.
4 And, but McElwee Brothers didn't have any 4 Does that look familiar to you?
5 records to confirm that he was ever on that job 5 (Exhibit 14 was marked for
6 that day and got hurt. We confirmed that he 6 identification and is attached hereto.)
7 came to the job, but not that he got hurt that 7 A. Yes, sir. This is the complaint that
8 day. 8 was filed in the federal Court by Lori Folse
9 Q. Do you know what happened in that 9 White.
10 lawsuit? 10 Q. I show you a document McElwee
11 A. No, sir, I don't. I just know that 11 Exhibit 15. And I think you've already talked
12 the, um -- insurance company that was handling 12 about this. I asked you about the sanctions
13 it at that time dealt with it. 13 brought against -- the sanctions order issued
14 Q. So you don't know the end result of 14 by Judge Duval against you.
15 it? 15 Is that a copy of the Order?
16 A. No, sir, I never researched the 16 (Exhibit 15 was marked for
17 documents to find out what the end result was. 17 identification and is attached hereto.)
18 Q. Do you recall a suit that you and 18 A. That's correct.
19 McElwee Brothers, plaintiffs, brought against 19 EXAMINATION BY MR. TREEBY:
20 Ronald Davis and Try-State Design? 20 Q. Have you ever paid those sanctions?
21 A. I'm familiar with that one. 21 A. Yes. They were paid.
22 Q. Tell me what that suit was about. 22 Q. Okay. While we're marking some
23 A. That suit was the initial onset of -- 23 documents here, Mr. McElwee, when did you first
24 after the termination for default took place 24 meet with Mr. Bruno to prepare for this
25 with the Corps of Engineers, McElwee Brothers 25 deposition?
Page 231 Page 233
1 sued Mr. Davis and his -- some of his practices 1 A. To prepare for it? Um -- actually, it
2 he began the utilize at the end of the project 2 was a couple of weeks ago. I can't tell you
3 that, um -- were not productive for the 3 the exact date but I came in and we had a brief
4 project. 4 conversation, and we was talking about the job
5 Q. And that suit was brought in 2003. 5 I was on with the Corps of Engineers.
6 What has happened with that case? 6 Q. That's the Dwyer Road job?
7 A. It was stayed pending arbitration. 7 A. Yes. I mentioned to Mr. Bruno, I
8 Q. Did the arbitration take place? 8 said, Mr. Bruno, I had a job with the Corps of
9 A. No, sir. 9 Engineers and these are some of the things that
10 Q. The case still there? 10 took place. And I can't --
11 A. It's still there. 11 THE WITNESS:
12 Q. And who is your attorney in that case? 12 Your name?
13 A. Roderick White and Lori White. 13 MR. JOANEN:
14 Q. Are you familiar with a matter named 14 Scott Joanen.
15 Hancock Bank of Louisiana versus McElwee 15 A. Scott said, y'all need to cease this
16 Brothers? 16 conversation at this moment because we don't
17 A. Yes, I'm familiar with that. 17 want to get into no discussion about too much.
18 Q. And what is that about? 18 But we went to deposition you. And are you
19 A. That was about a, um -- a mortgaged 19 willing to go through a deposition? And
20 vehicle purchased from Hancock Bank. 20 then --
21 Q. Is that still pending? 21 EXAMINATION BY MR. TREEBY:
22 A. Not that I know of, no. They turned 22 Q. I'm going to show you a document that
23 it from a writ of seizure to a suit against a 23 we've marked McElwee Exhibit Number 16 which
24 mortgage note and received a judgment on it. 24 you should be familiar with, I believe. This
25 Q. I show you a document, it refers to 25 is a copy of a subpoena that we issued to you,

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1 which shows a return on it. I assume you 1 EXAMINATION BY MR. TREEBY:
2 acknowledge having received this. 2 Q. However, proceeding ahead, in order
3 (Exhibit 16 was marked for 3 the respond to the specific requests in the
4 identification and is attached hereto.) 4 subpoena, particularly for documents, what did
5 A. Yes, sir. You and I had a 5 you do to respond to it?
6 conversation I think about this, with IKON 6 A. Um -- when I got the subpoena, I
7 and -- you know, I'm waiting on your response 7 looked at the request of the subpoena, the
8 to tell me if you thought was enough or not. 8 definitions, and then exactly what you was
9 (Brief interruption.) 9 asking me for, and I tried to go verbatim to
10 EXAMINATION BY MR. TREEBY: 10 give you an answer to your requests. And I
11 Q. And I want to show you a document we 11 think this particular request you had asked me
12 have marked McElwee Exhibit 17 and ask you if 12 about information relative to, um -- projects
13 you can identify that as a written response to 13 that really were outside the scope of the Dwyer
14 the subpoena that you've just identified as 14 Road project, and I think my response was,
15 Exhibit 16. 15 generally, I didn't perform a contract in the
16 (Exhibit 17 was marked for 16 area where the failures were, but I did perform
17 identification and is attached hereto.) 17 a contract somewhere else, which was the Dwyer
18 A. Yes. This is -- yes, this is a 18 Road project. And to your questions about who
19 written response to that Request for Production 19 I may have talked to on the levee investigation
20 of documents. 20 team, I informed you that I talked to, um --
21 EXAMINATION BY MR. TREEBY: 21 Professor Robert Bea, and the documents that I
22 Q. Okay. 22 had on hand that I had supplied him and any
23 MR. BRUNO: 23 communications I forwarded it to you. And I
24 Did you furnish this to us? 24 also mentioned that there may be other
25 THE WITNESS: 25 documents that I didn't have in my possession
Page 235 Page 237
1 Yes, sir. 1 that he may have that I submitted to him and he
2 MR. BRUNO: 2 would be the best source of all the documents
3 No, no. Mr. Treeby. 3 that I had supplied him.
4 MR. TREEBY: 4 Q. I'm going to have to come back to
5 I don't know. I assume we did, 5 this. I apologize to you. And I will
6 but I forget. It was produced. He 6 represent to everybody here, apparently the
7 filed it in the record, so I would 7 document that I had you identify as the
8 assume that you've got it. 8 subpoena is incomplete. It gives the
9 MR. BRUNO: 9 definitions but doesn't give the specific
10 Well, no. 10 documents requested, which we will get and deal
11 MR. TREEBY: 11 with later because I am curious about it.
12 It's in the -- 12 I believe it did ask you for
13 MR. BRUNO: 13 communications with Dr. Bea. Did it not?
14 All right. 14 A. It asked for communications held with
15 MR. TREEBY: 15 any member of the levee -- in fact, my
16 It's in the filings in the case. 16 answer -- response to, um -- it asked for any
17 It's in Pacer. 17 documents -- for any correspondence you've held
18 MR. BRUNO: 18 with any member of the levee investigation
19 Well, it's also something you 19 team. something to that effect. Not Dr. Bea,
20 were obligated to give to us once you 20 per se. But he just happened to be the one
21 got it. 21 that McElwee Brothers had spoken to that was a
22 MR. TREEBY: 22 member of the levee investigation team. And so
23 We can talk about that later. If 23 we --
24 that's so, I certainly will apologize. 24 Q. We'll get it before us, because I
25 I doubt that's so. 25 apologize, I got here without the full

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1 document. I believe it did asked, actually -- 1 documents to him -- I'd like to explain a
2 it may have asked for levee investigation team 2 little, if I can.
3 but it specifically asked for Dr. Bea. 3 Q. I haven't shut you off and don't. Go
4 And in any case, you understood in 4 ahead.
5 responding to it that we were asking for, 5 A. When the request was made, when I
6 including other things, communications with 6 first met with Dr. Bea we brought him file
7 Dr. Bea, is that correct? 7 cabinets in conference room in Hammond, in a
8 A. I fully understood that. That's why I 8 trailer, and said, hey -- we laid it out for
9 submitted you all the E-mails and 9 him to take a look at everything. He left but
10 correspondence that me and Dr. Bea had, and I 10 he didn't get copies. So this communication is
11 also mentioned in my response please contact 11 the only thing that we had as far as
12 Dr. Bea because there was some time frame that 12 communication and documents. And then some
13 passed between the time I met with him, some 13 documents that we submitted that I don't have
14 documents I actually started getting rid of, 14 on record now, in my possession.
15 and I knew he had copy of them, I said go to 15 When this subpoena was issued, from
16 Dr. Bea and get them. 16 that time where he met in the conference room
17 Q. And in doing your search, did you 17 and saw everything, some documents had been
18 search your computer at work? 18 destroyed, because over time, I mean, I figured
19 A. Yes. 19 it wasn't important. I didn't need it for IRS,
20 Q. At home? 20 we got rid of it.
21 A. I don't have a computer at the house. 21 So that's why McElwee Brothers said,
22 Most of my -- I have a laptop, but nothing on 22 Mr. Treeby, check with Dr. Bea. So every
23 the laptop was relative to conversations with 23 document that was in McElwee Brothers'
24 me and Dr. Bea. But the computer at home -- I 24 possession, that was in McElwee Brothers'
25 mean the computer at work, yeah. 25 office file cabinet, container, 40-foot storage
Page 239 Page 241
1 Q. Did you talk to anyone else at your 1 container, um -- anywhere, I went through every
2 place of -- you know, at McElwee Brothers, to 2 document to see what I had in writing to get it
3 determine if they had responsive documents? 3 to you.
4 A. There was no one else that 4 Q. I may be jumping ahead a little bit,
5 communicated with Dr. Bea. It was strictly me. 5 but you gave me a response and we're going to
6 Q. Did you search phone records? 6 go back into the response in a minute. And
7 A. Did I search phone records? 7 then subsequently after some further
8 Q. Telephone records. 8 communication that we had telephonically, you
9 A. I didn't go back and see how many 9 gave other documents to IKON. Is that correct?
10 times I talked to him on the phone, on the 10 A. Yes. And the way that came about was,
11 phone bill. That's the only thing I would 11 this request was for information that I had
12 have. 12 shared with Dr. Bea and given to Dr. Bea. That
13 Q. And you didn't look there? 13 IKON disk, that didn't happen at that time
14 A. No. No. Because all I'm going to 14 after I met with Dr. Bea. This happened while
15 have is a phone bill telling me I talked to him 15 we were talking. I haven't stopped
16 this time. But what we talked about, I don't 16 communications with Dr. Bea. So what happened
17 keep a record of that. 17 was, I took that information that had been
18 Q. Okay. Did you search paper files both 18 given to him up -- in between November 18th,
19 at home and at work? 19 2007, and until I produced it to you on that
20 A. Yes. Of all documents that we 20 day on the phone, that was that disk. That was
21 provided to Dr. Bea, paper files, storage 21 new information that had been presented to
22 facilities, you know -- I went -- effort -- you 22 Dr. Bea.
23 know, a tremendous effort going through our 23 Q. So it's your testimony that the
24 storage containers trying to find everything 24 documents on the IKON disk are all documents
25 that I remember. Because when I submitted 25 that were transmitted to Dr. Bea after

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1 November 19, 2007? 1 Number 7.
2 A. Yes, sir. So help me God. 2 MR. TREEBY:
3 Q. Now, if you would look at the document 3 Right. Number 6.
4 I believe we've marked as 17 -- 4 A. That is correct.
5 A. Yes, sir. 5 EXAMINATION BY MR. TREEBY:
6 Q. -- which is your response, did anyone 6 Q. And in your response on Page 4 to
7 help you draft this response? 7 Number 8 you state, McElwee Brothers has not
8 A. No, sir, I mean -- we went over the 8 reported underseepage, ponding or pooling of
9 litigations that I've been involved in acting 9 waters along the Industrial Canal's east bank
10 Pro Se, so I've did a quite a bit of research 10 between Florida and Claiborne Avenues.
11 in libraries to look at the books and figure 11 Is that true?
12 out how to do these type of simple things. 12 A. That is true. I have not performed
13 Q. Okay. If you would look at Page 3 of 13 any work between Florida and Claiborne avenues.
14 5 of your response -- 14 Q. Well --
15 A. Yes, sir. 15 A. Only north of there.
16 Q. -- Response Number 7, do you see that? 16 Q. Yeah. This wasn't really asking about
17 A. Yes, sir. 17 work you had done. I want to make sure we're
18 Q. It states, McElwee Brothers has not 18 clear.
19 conducted or attempted to conduct excavation 19 Is it true when you stated here
20 along the Industrial Canal 's east bank between 20 McElwee Brothers has not reported underseepage,
21 Florida and Claiborne Avenues. 21 ponding or pooling of waters along the
22 Is that statement true? 22 Industrial Canal's east bank between Florida
23 A. Yes, sir. 23 and Claiborne avenues, you've not reported
24 Q. Okay. In your response to Number 7, 24 that.
25 again Tab Number 8, Page 3, you state, McElwee 25 A. I'm going to answer you. We don't
Page 243 Page 245
1 Brothers has not conducted or attempted to 1 have the complete request for production. In
2 conduct excavation along the Industrial 2 that complete request for production, your
3 Canal 's east bank between -- that's a repeat. 3 request was only for information between
4 Forget that one. 4 Florida and Claiborne Avenues.
5 A. No. No. You said not. It says has 5 Q. That's all I'm asking about. I'm just
6 conducted. 6 quoting your response. I just want to make
7 MR. BRUNO: 7 sure it's true.
8 You took out not. 8 A. It's true.
9 THE WITNESS: 9 Q. Okay. That statement that I just read
10 He pit in not. 10 from your response is true.
11 A. Take the not out. McElwee Brothers 11 A. So help me God.
12 has conducted excavations along the Industrial 12 Q. That's all I want to know.
13 Canal 's east bank north of Florida and 13 Did you ever perform any work in the
14 Claiborne Avenues, outside of the parameters in 14 East Bank Industrial Area at any time either
15 your original request. 15 for the U.S. Corps of Engineers or anyone else?
16 EXAMINATION BY MR. TREEBY: 16 Do you know what the East Bank
17 Q. Okay. I'm sorry. I misread 17 Industrial Area is?
18 something. That's not what I misread, though. 18 A. Explain that to me, please.
19 You also state McElwee Brothers has 19 Q. Okay. The East Bank Industrial Area I
20 not conducted or attempted to conducted 20 will define as the area between the Florida
21 dewatering procedures along the Industrial 21 Avenue bridge and the Claiborne Avenue bridge
22 Canal 's east bank between Florida and 22 and between the floodwall and the Industrial
23 Claiborne Avenues. Is that correct? 23 Canal. You understand that?
24 MR. BRUNO: 24 MR. LAMBERT:
25 That's Number 6, that's not 25 Why don't you point to it on

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1 Number 6. 1 MR. BRUNO:
2 MR. TREEBY: 2 That's Almonaster.
3 Hugh, let me conduct -- you do 3 A. That's Almonaster. Okay.
4 whatever you want when you're asking 4 EXAMINATION BY MR. TREEBY:
5 questions. 5 Q. I'm just trying the help. I'm not
6 MR. LAMBERT: 6 trying the confuse you. The Florida Avenue
7 I just want to make sure he's 7 bridge, you understand -- you know where that
8 clear what you're talking about. 8 is? Without regard to the map, do you know
9 MR. TREEBY: 9 where it is? Have you been there?
10 I'm being as clear as I can. 10 A. I've been there but I'm confused now
11 MR. BRUNO: 11 because what I thought was the Florida Avenue
12 Isn't that interesting. Because 12 bridge, and maybe it wasn't the Florida Avenue
13 when we had the same problem before, 13 bridge, and I'm thinking between here and the
14 you suggested I was being vague all 14 Claiborne.
15 day long and all day and night. 15 Q. Uh-huh. Well, let's help ourselves
16 MR. TREEBY: 16 geographically. Do you know where the
17 That wasn't really an objection. 17 Intracoastal Waterway is to the east of the
18 He was suggesting how I conduct the 18 Industrial Canal? The Intracoastal Waterway.
19 examination. I'll conduct it the way 19 Exactly. You're pointing to the Intracoastal
20 I want. 20 Waterway. And the Intracoastal Waterway
21 MR. LAMBERT: 21 intersects with the Industrial Canal. You're
22 Wait. Wait. Don't get ticked 22 familiar with that.
23 off at me. Just stick with Joe. 23 A. The Inner Harbor Navigational Canal,
24 Okay? 24 yes.
25 EXAMINATION BY MR. TREEBY: 25 Q. And would you agree with me that the
Page 247 Page 249
1 Q. Okay. Let's get the geographic 1 Florida Avenue bridge is south of where the
2 parameters. We're talk about the Florida 2 Intracoastal Waterway intersects with the Inner
3 Avenue bridge to the north -- no, that's not 3 Harbor Navigational Canal?
4 the Florida Avenue bridge. I'm sorry. That's 4 MR. BRUNO:
5 in fact the old Chef bridge. 5 Objection. Leading.
6 A. Okay. 6 A. I'll have to agree.
7 MR. LAMBERT: 7 MR. BRUNO:
8 Well, there you go. 8 You did the exact same.
9 MR. TREEBY: 9 A. I mean, I'm going to have to agree
10 Okay. I understand. This 10 with you because I don't have anything else to
11 doesn't help at all. 11 refer to. And I'm actually -- I'm going to
12 MR. BRUNO: 12 have to agree with you for the purposes of this
13 Are you testifying now, counsel? 13 illustration, yes.
14 A. Wait. Wait. Wait. Sir, if my memory 14 EXAMINATION BY MR. TREEBY:
15 serves me correctly, there is a bridge here. 15 Q. I mean, if don't know then say you
16 MR. BRUNO: 16 don't know. I'm trying to find out what you
17 There is. 17 know.
18 EXAMINATION BY MR. TREEBY: 18 A. Okay.
19 Q. There is a bridge at Florida Avenue. 19 Q. Where is the Florida Avenue bridge in
20 That's true. 20 relation to the Intracoastal Waterway?
21 A. That's correct. 21 A. It is south of Interstate 10. I can
22 Q. And I'm asking -- 22 tell you that.
23 A. You told me this wasn't Florida 23 MR. BRUNO:
24 Avenue. 24 Bill, the original question
25 Q. That's not Florida Avenue. 25 was -- let's go back because we'll be

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1 here all week. You and I can 1 A. Okay. I know the area you're talking
2 stipulate where it is. 2 about.
3 MR. TREEBY: 3 Q. Okay. Have you ever done any work
4 I want this witness -- 4 here?
5 MR. BRUNO: 5 A. No, sir.
6 Can we? 6 Q. Thank you. In all your inspection
7 MR. TREEBY: 7 work, I'm not talking about work as a
8 No, that's not -- Joe, look -- 8 contractor now, I'm talking about your work for
9 MR. BRUNO: 9 the Corps of Engineers, when were an inspector
10 Listen to me. If you want to go 10 for the Corps of Engineers, did you ever
11 off the record and step outside I'll 11 inspect any excavations in work in this area
12 be more than happy to. 12 that I have just defined for you as the East
13 MR. TREEBY: 13 Bank Industrial Area?
14 I know where it is. I know where 14 A. No.
15 it is. You know where it is. I want 15 Q. Did you ever do any inspection work in
16 to make sur this witness knows where 16 the Lower Ninth Ward?
17 it is. 17 A. Dredging inspection.
18 MR. BRUNO: 18 Q. Dredging inspection?
19 He said -- it doesn't matter 19 A. Not in the Lower Ninth Ward. It was
20 whether he knows where it is. Your 20 in the canal.
21 question was did he do work at a 21 Q. In what canal?
22 particular location. Why don't you 22 A. In the Inner Harbor Navigational
23 just point. Okay? You started this. 23 Canal.
24 Did you do any work on the, what did 24 Q. Was that in the Inner Harbor
25 you call it, the -- I forgot what he 25 Navigational Canal itself or in the -- what's
Page 251 Page 253
1 called it. 1 been known as the MRGO connecting to the Inner
2 MR. TREEBY: 2 Harbor Navigation Canal, or both?
3 Are you making an objection? 3 A. MRGO -- both MRGO and --
4 MR. BRUNO: 4 Q. So you -- and in the dredging work
5 I forgot. The service area? The 5 that you inspected in the Inner Harbor
6 wharfage area? It's so long ago. 6 Navigational Canal, where in the Inner Harbor
7 A. Can I make a statement? 7 Navigational Canal did you do that inspection
8 MR. BRUNO: 8 of dredging?
9 You got sideways on your own 9 A. Right near the Mississippi River where
10 damned question. 10 it enters the Inner Harbor Navigational Canal,
11 A. McElwee Brothers has not performed any 11 and then from -- I'm pointing here.
12 work south of Interstate 10. Now, that 12 Approximately here on out.
13 includes the area that's in your Request for 13 MR. TREEBY:
14 Production of documents. 14 And Joe, you may want to look
15 EXAMINATION BY MR. TREEBY: 15 where he's pointing when he says from
16 Q. Now, let me -- the East Bank 16 here on out.
17 Industrial Area is an area bounded on the north 17 EXAMINATION BY MR. TREEBY:
18 by the Florida Avenue bridge -- 18 Q. You're painting pointing to an area
19 A. Okay. 19 somewhere in the Intracoastal Waterway on out
20 Q. -- and bounded on the west by the 20 to the east, right?
21 Inner Harbor Navigational Canal. 21 A. Yes.
22 A. Okay. 22 Q. Do you know Mr. Shields?
23 Q. And bounded on the east by the 23 A. Yes, I do.
24 floodwall between the Florida Avenue bridge and 24 Q. And what is your relationship to
25 the North Claiborne Bridge. 25 Mr. Shields?

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1 A. Mr. Shields was the attorney for -- if 1 modifications impacted the contract. Usually
2 we're talking about the same Sonny Shields. 2 every "mod" would tell you what section it
3 Q. Yeah. Lloyd Sonny Shields. 3 impacted. But this is the original bid packet
4 A. Lloyd Sonny Shields. He was the 4 document.
5 attorney for Great American Insurance Company. 5 Q. For dewatering?
6 Q. Okay. If you know, what is SELA? 6 A. For dewatering, yes.
7 S-E-L-A. 7 Q. What was the division of
8 A. Southeastern Louisiana, um -- I can't 8 responsibility between McElwee Brothers and
9 tell you all the rest of it. 9 Tri-State?
10 Q. Did you understand that the Dwyer 10 A. As I mentioned earlier, Tri-State
11 discharge tubes and canal project that you 11 provided the financing and the bonding, McElwee
12 worked on was a SELA Project? 12 Brothers did the execution of the work. That
13 A. Yes. And SELA was an area that one 13 was the division of responsibility as per the
14 contracting officer administrator supervised 14 U.S. Small Business Administration 's 8A
15 for construction, you know. And in New Orleans 15 program. The U.S. Small Business
16 it was SELA. And in Jefferson Parish it was a 16 Administration would always assure that
17 different title. 17 contractors were not fronts for different
18 Q. I show you a document which we will 18 organizations. So McElwee Brothers had to be
19 mark McElwee Exhibit 18. 19 in control and perform specific parts of the
20 Are you familiar with that document? 20 contract.
21 (Exhibit 18 was marked for 21 (Brief recess.)
22 identification and is attached hereto.) 22 EXAMINATION BY MR. TREEBY:
23 A. Yes. This appears to be an 23 Q. Mr. McElwee, I show you a document we
24 extrapolation of some of the plans for the bid 24 marked McElwee Exhibit Number 19 and ask you if
25 used on the Dwyer Road discharge tube. 25 can identify that document.
Page 255 Page 257
1 Q. Actually, the complete contract that 1 (Exhibit 19 was marked for
2 McElwee Brothers or the joint venture that it 2 identification and is attached hereto.)
3 was engaged in for the Dwyer Road project is 3 A. Yes, sir, this appears to be a copy of
4 considerably longer than this document, is it 4 the joint venture agreement initially submitted
5 not? 5 to the U.S. Small Business Administration for
6 A. Oh, much bigger. Yeah. It's almost 6 the project.
7 two inches thick. 7 As I was saying, this appears to be
8 Q. But this is a part of it, is it not? 8 the joint venture agreement initially submitted
9 A. This is portions of it, yes. 9 to the U.S. Small Business Administration for
10 Q. Is this the part of it that deals with 10 the Dwyer Road project between McElwee Brothers
11 the dewatering section of the job? 11 and Tri-State at the time.
12 A. This is part of that. That's not -- 12 (Off the record.)
13 it's not complete. Because in part of it there 13 EXAMINATION BY MR. TREEBY:
14 was a change orders that's a part of this, and 14 Q. Can you identify that document?
15 it's not here. 15 A. Yes, sir. Again, that's the joint
16 Q. So there was a change order to the 16 venture agreement. Looks like the original
17 dewatering section, is that what you're saying? 17 submission that was given to the U.S. Small
18 A. There was a change order relative 18 Business Administration for the Dwyer Road
19 to -- I believe it related to some parts of it. 19 project in which McElwee and Tri-State were
20 I believe it was in this section when we were 20 involved.
21 extrapolating -- extracting the piles and we 21 Q. Okay. And does this agreement spell
22 had to inject bentonite. I don't know if it 22 out the division of responsibility that you
23 was this section or another section. 23 described earlier in your testimony?
24 I hate to answer and say this is 24 A. Yes, sir. In fact, I'll find it for
25 complete until I was able to look at what 25 you. If we look at Page 9 of 33 --

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1 Q. Uh-huh. 1 A. In the joint venture agreement,
2 A. -- we talk about percentages of 2 there's everything.
3 ownership. 51 percent, 49 percent Tri-State 3 Q. I meant in the joint venture
4 Design. If we go further down in management, 4 agreement.
5 we talk about Paragraph 3, Management 3.1, 5 Have you pointed -- I'm sorry. Have
6 McElwee is the managing venturer of the joint 6 you pointed us to all the paragraphs in the
7 venture and McElwee shall appointment one of 7 joint venture agreement that would
8 its employees as the project manager with the 8 differentiate the responsibilities between the
9 duties and responsibilities needed for 9 two members of the joint venture?
10 performance of this contract. 10 A. I pointed some of it. On Page 5 of 33
11 MR. LAMBERT: 11 there is some more of it.
12 Slow down a little bit. 12 Q. Okay.
13 EXAMINATION BY MR. TREEBY: 13 A. Page 6 of 33 there's some more of it.
14 Q. Let me just ask you to do this: This 14 Q. Okay.
15 exhibit will be part of the record so I don't 15 A. It talks about the purpose of the
16 really need for you to read it. So you're 16 joint venture agreement, whereas McElwee lacks
17 saying -- so far you've said that what 17 the following, bonding capacity to obtain this
18 describes the separation is the 51/49 percent 18 side contract, 100 percent contract financial
19 and the management provision on Page 9 of 33. 19 ability.
20 Is that right? 20 Q. Okay.
21 A. Yes, sir. 21 A. And then it spells out McElwee has the
22 Q. Is there anything else that 22 capacity to perform --
23 differentiates the responsibility of the 23 Q. I got you.
24 parties? And just refer to the paragraph and 24 A. -- Items A through V.
25 we can then look at it. 25 Q. Page 6?
Page 259 Page 261
1 A. Okay. If you would look at Page -- 1 A. Yes, sir. Page 6. And it talks about
2 Appendix A, it comes after Page 29 of 33, it's 2 the benefits of being in the joint venture.
3 a chart that shows task assignment and 3 Q. Okay. Was the Dyer Road pumping --
4 responsibility. If you will notice Item 4 the Dwyer Road job that we've described, is it
5 Number 1, bonding by Tri-State, Company B. 5 fairly close to the intersection of Dwyer Road,
6 Q. Uh-huh. 6 or where Dwyer Road would have intersected with
7 A. Item 2, financial. 7 Jourdan?
8 Q. Right. I can see -- I see the 8 A. That is correct.
9 document. I thought you had earlier said that 9 Q. Okay. It was reasonably close to that
10 Tri-State had the financial responsibility for 10 location?
11 this job. 11 A. That is the location.
12 A. When you say financial responsibility, 12 Q. That is the location. Okay.
13 yes, they were bringing finance to the joint 13 Was this the largest dollar value
14 venture. Finances. 14 project that you or McElwee Brothers ever
15 Q. And this would indicate that so was 15 worked on?
16 McElwee; is that right? 16 A. Yes.
17 A. McElwee brought a little, yes -- 17 Q. Now, as part of your contract on the
18 Q. Okay. 18 Dwyer Road project, were you required to
19 A. -- to initiate the -- 19 design, furnish, install, operate and then
20 Q. Are there any other provisions in the 20 remove a dewatering system?
21 contract that would spell out the differing 21 A. Yes. That was part of the contract
22 responsibilities between the McElwee Brothers 22 documents. It was in the contract.
23 and Tri-State? 23 Q. How did McElwee Brothers go about
24 A. In the contract, there's nothing. 24 designing the dewatering plan?
25 Q. Okay. 25 A. I will reiterate what I mentioned

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1 earlier. We contacted Mr. J. Michael Dixon who 1 A. May I ask, would you be, I guess, more
2 then -- he's deceased now. I say who was, 2 specific? Because there was different phases
3 because his license never was taken away, but 3 of the construction site, different situations
4 edges deceased -- was a registered professional 4 and problems that occurred at different times.
5 civil engineer in the state of Louisiana. That 5 If you want me to talk in general about the
6 was a requirement in the contract that we 6 whole job, I will, but each -- McElwee Brothers
7 acquire somebody that had those credentials to 7 divided the entire project I think into five
8 perform the design. And McElwee Brothers 8 phases, Phase I, Phase 2, Phase III, Phase IA,
9 worked with Mr. Dixon to provide him with the 9 and Phase IB, in the construction process.
10 field data, the input, of equipment suppliers 10 When it divided it up, each dewatering scenario
11 and everything for design of a system. So. 11 was different for each one. Phase I, which was
12 Q. And Mr. Dixon is deceased at this 12 the box culvert canal section that we saw in
13 point. 13 the photos, it was a complete TRS system,
14 A. Yes, sir. 14 meaning complete sheet piling driven to enclose
15 Q. And I believe your testimony earlier 15 a certain area. It was completely cut off.
16 has indicated that either the joint venture or 16 When we got ready to deal with
17 the Corps -- let me just ask, who hired Eustis 17 Phase 4, the tubes went through that phase, so
18 Engineering, was it the joint venture or was it 18 we couldn't always keep it completely cut off.
19 the Corps? 19 So we had to do different things to
20 A. Eustis was hired by Design 20 accommodate. So the dewatering system was
21 Engineering, Inc. That's my understanding of 21 changed at certain times. That's why I'm
22 it. Design Engineering, Inc. was the 22 mentioning that. I'm trying to give you a
23 consultants to the Corps. 23 picture.
24 Q. Okay. And who hired Gore? 24 Q. Well --
25 A. McElwee Brothers. 25 A. And at the navigational -- once we had
Page 263 Page 265
1 Q. And would it be fair to say that the 1 Phase I in and we got ready to deal with the
2 plans or the -- the plans for dewatering the 2 navigational canal end, the discharge end, it
3 site, for carrying out your responsibility to 3 could not be completely boxed off so we had it
4 design, furnish, install, operate and then 4 U-shaped, sort of, towards the floodwall, and
5 remove a dewatering system, utilized 5 we had to install dewatering tubes on the open
6 information that Eustis Engineering provided 6 end to drop the water table such that a lot of
7 and utilized information later that Gore 7 water wouldn't be in the work area.
8 provided? 8 Q. Well, would it be fair to say that the
9 A. McElwee Brothers' dewatering system 9 dewatering of the site went slowly at first but
10 utilized information provided by the Corps of 10 that in fact the dewatering was able to -- you
11 Engineers. 11 were able to dewater the site sufficiently?
12 Q. Through -- some of that was Eustis. I 12 A. Went slowly at first? I'm confused.
13 was asking about Eustis. 13 It went during a normal process to us.
14 A. And Eustis, yes. 14 Q. Was it delayed at all? Let me ask it
15 Q. I was just specifically asking, did 15 that way. Did the dewatering process slow you
16 the dewatering system that was designed, 16 down from your original timetable for the job?
17 furnished, installed, and that whole part of 17 A. No. It was just part of the process.
18 the project, did it utilize the Eustis soils 18 It didn't slow us down. It was part of the
19 analysis? 19 process. We knew we had to do it. It was in
20 A. Yes. 20 the plans and specs, and we were just
21 Q. Did it also then later utilize the 21 implementing. But no, it wasn't a curve ball,
22 Gore soils analysis? 22 something we didn't anticipate, other than
23 A. Yes. 23 whenever we ran into the, what, pulling of the
24 Q. How would you describe the progress of 24 piles and we had problems in that situation.
25 the dewatering of the site? 25 Q. One of the complaints that the Corps

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1 levied, and one of the reasons it issued a 1 what it says, and this is Item B on Page 2 of
2 default letter and canceled the contract for 2 2, acts or omissions constituting the default:
3 default, was that there were delays that should 3 Repeated failure to manage the contract
4 not have occurred on this job. Isn't that 4 performance, including the contractor's
5 correct? 5 ill-defined lines of authority, inconsistencies
6 A. I don't know that to be one of the 6 between the roles and the individuals of the
7 three reasons that's mentioned in that default 7 joint venture performing those roles, and
8 letter. I'd have to see that termination for 8 ineffective use of resources resulting in a
9 default letter. I don't remember that being 9 delay to the overall completion of the
10 one of them. I remember three reasons, but -- 10 contract.
11 Q. I show you this document that we have 11 That is one of the reasons, one of the
12 marked McElwee Exhibit 20 which is a letter 12 acts of omissions that the Corps stated as a
13 dated June 24, 2003, that attaches a form which 13 default --
14 is described as Amendment of 14 MR. JOANEN:
15 Solicitation/Modification of Contract. I 15 Objection. Leading.
16 believe that, taken together, is the default 16 A. Yes.
17 letter. Can I you identify that? 17 EXAMINATION BY MR. TREEBY:
18 (Exhibit 20 was marked for 18 Q. Is that correct?
19 identification and is attached hereto.) 19 A. That is what the Corps mentioned.
20 A. Yes. This is the termination for 20 That's what they said.
21 default -- it's in four, and on Page -- it says 21 Q. And in fact, your lawsuit against your
22 2 of 2 on the top, but it's actually the third 22 joint venturer alluded to some of these
23 page in that stack. It talks about the acts or 23 problems of inconsistencies between the roles
24 omissions constituting a default, and there are 24 and individuals of the joint venture performing
25 three items. And, um -- okay. I see on Item B 25 the roles, right?
Page 267 Page 269
1 where at the end of that sentence it says 1 A. That is accurate. That's correct.
2 resulting in a delay or to the overall 2 Q. Okay. So you even complained to your
3 completion of the project. 3 joint venturer that his -- some of his -- some
4 EXAMINATION BY MR. TREEBY: 4 of the things you alleged he had not done
5 Q. The contract. 5 appropriately were the cause of this default
6 A. Yes. And I -- to answer your 6 letter.
7 question, that's mentioned there. 7 A. That's correct.
8 Can I read the whole -- 8 Q. Okay. I show you a document we have
9 Q. Well, you don't need to read it aloud. 9 marked McElwee Exhibit Number 21 and ask if you
10 I'm just asking, does this confirm what I 10 can identify that document.
11 believed to be true, that one of the reasons 11 (Exhibit 21 was marked for
12 for the default letter was work that you did 12 identification and is attached hereto.)
13 resulted in the delay to the overall completion 13 A. Yes, sir, this appears to be minutes
14 of the project? 14 of a biweekly status submittal meeting held on
15 A. That's not a true statement. 15 March the 6th, 2002. As I mentioned earlier,
16 Q. Well, is that what the letter says? 16 we used to hold biweekly meetings with the
17 A. The later says repeated failure to 17 Corps to update them on the project.
18 manage the contract performance including the 18 Q. And would you typically then get a
19 contractors, ill-defined lines of authority. 19 copy of these minutes?
20 It has nothing to do with the 20 A. Yes, normally after -- prior to the
21 performance of the work. It's that was the 21 next meeting. Or even sometimes at the next
22 reason, they said there was a delay. And if 22 meeting, yes. I got copies but had no input.
23 you keep reading it gets down to resulting in 23 Q. If you would look at the last page of
24 delays. 24 that exhibit which bears Bates Number JV
25 Q. Right. For the record, we'll just -- 25 005966, the last item, Number 4, this indicated

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1 that -- by way, who is Mr. Roth? 1 that you stated you felt additional information
2 A. Tim Roth was the administrative 2 was needed to complete the dewatering design?
3 contracting officer on the project. He worked 3 A. Yes, sir.
4 for the contracting office. 4 Q. And the Corps responded that you had
5 Q. Of the Corps? 5 sufficient information to design the dewatering
6 A. Yes. 6 plan, is that right?
7 Q. And it indicated that he had explained 7 A. That's their response.
8 to you that the plan that you had submitted on 8 Q. Do you recall this was a bone of
9 February 19, 2002, did not properly address how 9 contention in the progress of the job?
10 and in what time frame the temporary protection 10 A. It was a bone of contention at that
11 would be installed and informed you that the 11 point. In fact, the following sentence behind
12 plan was unacceptable and that you agreed to 12 that, the contractor acknowledged this and
13 revise the plan and resubmit it by April 1st. 13 stated that he would perform additional soil
14 Was that some indication that the 14 borings when the piezometers were installed.
15 Corps felt that this project was being unduly 15 So --
16 delayed at that point? 16 Q. Excuse me. I didn't mean to interrupt
17 MR. JOANEN: 17 you. Go ahead.
18 Objection. Calls for 18 A. So I agreed that they had provided
19 speculation. 19 information, but whether it was enough
20 A. No. No. 20 information I never made any concurrence to
21 EXAMINATION BY MR. TREEBY: 21 that.
22 Q. Okay. 22 Q. Were those additional soil borings the
23 A. That was just merely a comment on, 23 borings that Gore did?
24 um -- review of a planned temporary -- that was 24 A. Yes.
25 review of the initial flood protection plan. 25 Q. I show you a document we've marked
Page 271 Page 273
1 His comments on it. It didn't mean that it 1 McElwee Exhibit 23 which is a April 29, 2002,
2 delayed the job, it was just that, hey, you 2 four-paged document, again signed by Timothy
3 need to correct these things and then we'll 3 Roth. And again on this occasion he appears at
4 look at it again. 4 the end as administrative contracting officer
5 Q. I'm going to show you a document that 5 and in the beginning as resident engineer. And
6 we've marked McElwee Exhibit 22 which is a 6 it indicates that this letter constitutes the
7 document that has a date at the top of it of 7 formal minutes of a biweekly status and
8 February 1, 2002 bearing Bates Number 8 submittal meeting that was on April the 11th,
9 GA/COOO171 through 173. This appears to be a 9 2002. And this would indicate that by this
10 memorandum from Timothy Roth described here as 10 time, at least, the Corps indicated that
11 the resident engineer. You described him as 11 nothing encountered in the project excused the
12 something in the contracting office? 12 delays that they believed were talking place.
13 (Exhibit 22 was marked for 13 Isn't that right?
14 identification and is attached hereto.) 14 (Exhibit 23 was marked for
15 A. Yes, sir. If you look at the, um -- 15 identification and is attached hereto.)
16 Exhibit 21, and look at Page JV -- the last 16 A. May I have some time to digest?
17 page, JV 005966, his title was the 17 EXAMINATION BY MR. TREEBY:
18 administrative contracting officer. That's 18 Q. Yes.
19 what he signed as on that page. 19 A. Okay, please ask your question again.
20 EXAMINATION BY MR. TREEBY: 20 Q. Yes. Would not these minutes indicate
21 Q. Was he also the resident engineer? 21 that by this time the Corps believed that
22 A. Yes, he was. 22 nothing encountered in the project excused the
23 Q. Okay. If you would look at the second 23 delays they believed were taking place?
24 page of this exhibit, in Number 4 where it says 24 MR. JOANEN:
25 the dewatering plan was discussed indicated 25 Objection. Calls for

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1 speculation. 1 in the ASPCA, so therefore it showed that when
2 A. This letter illustrates a bone of 2 the Corps paid $1.9 million to the bonding
3 contention about delays and illustrates 3 company relative to delays that some of that
4 McElwee 's explanation of where the project 4 was just what little it bit of hog wash.
5 was, line item by line item, and the Corps' 5 Q. Well, and the bonding company
6 refusal to acknowledge those delays. 6 similarly got judgment against you, did it not?
7 EXAMINATION BY MR. TREEBY: 7 A. For the excess amount that was n't
8 Q. Okay. I show you a document we have 8 paid on the project, that's correct.
9 marked McElwee Exhibit 24 which is a letter of 9 Q. How much was that?
10 April 17, 2002. This one is addressed to 10 A. That was 1.9 million.
11 McElwee Brothers, Inc. and Tri-State Design, a 11 Q. $1.9 million judgment against you?
12 Joint Venture, and it indicated, did it not, 12 A. That's correct.
13 that the Corps believed that your overall 13 Q. Your company? And that was because
14 performance on the contract has been 14 the Corps had determined that -- and it played
15 unsatisfactory to date? 15 out in various appeals to the Armed Services
16 Is that correct? 16 Contract Board, as well, that you had not done
17 (Exhibit 24 was marked for 17 the job satisfactorily, is that correct?
18 identification and is attached hereto.) 18 A. I'm not -- I can't confer with you on
19 A. It indicates what Mr. Tim Roth 19 that. Not at all.
20 believed to be necessary to begin a paper trail 20 Q. Well, that's what was determined in
21 of what he was intending to do, if you're 21 the process, is it not?
22 really asking me, yes. 22 A. I cannot agree with you on that. I
23 EXAMINATION BY MR. TREEBY: 23 don't know that.
24 Q. Well, let's just deal with what -- 24 Q. I thought you just admitted that a
25 without trying to get into people's heads about 25 $1.9 judgment was rendered against you for
Page 275 Page 277
1 what they really intended, it indicates that 1 unsatisfactory performance.
2 the quality control for the job is marginal, is 2 A. What I admitted to you is that the
3 that correct? 3 Corps negotiated with the bonding company and
4 A. That's what he says there. 4 wound up paying the bonding company
5 Q. It indicates that timely performance 5 $1.9 million for additional work performed on
6 was unsatisfactory, is that correct? 6 the project and delays involved with it;
7 A. That's what he said there. 7 however, after the bonding company received
8 Q. It indicates that effectiveness of 8 remaining funds on the contract, plus the
9 management was unsatisfactory. 9 $1.9 million, it was still out $1.9 million in
10 A. That's what said there. 10 cost, and that is where the judgment against me
11 Q. And that compliance with safety 11 came, not -- the two $1.9 million are separate
12 standard was marginal, is that correct? 12 issues.
13 A. That's what he said there. 13 Q. Those documents -- and we can go
14 Q. And he goes on to explain why he takes 14 through them, but I think there was a
15 that position, and that was just a summary at 15 disagreement, and you talked about it in your
16 the beginning but then on the subsequent pages, 16 testimony in answer to Mr. Bruno 's questions.
17 with a suitable letter A, B, C, D, E, indicates 17 There was a disagreement between you
18 why they believe that's correct. Is that 18 and the Corps about whether the pile should be
19 right? 19 cut off or pulled; is that correct?
20 A. That's what he said there. 20 A. That's correct.
21 Q. Okay. I'm sure this didn't make you 21 Q. And some of the concern for not
22 happy at the time and still doesn't make you 22 cutting them off had to do with damaging
23 happy. Is that correct? 23 existing pipes, isn't that correct?
24 A. Well, actually, the bonding company 24 A. That's incorrect.
25 wound up picking up, you know, all the appeals 25 Q. That's incorrect? Had nothing to do

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1 with it? 1 was used for, I believe it was concerning the
2 A. Nothing to do with it. 2 Armed Services Board of Contracting Appeals.
3 Q. Okay. But in any case, you ultimately 3 Q. Yeah, this was March 4, 2005, is the
4 agreed to comply under protest with the 4 date of this transcript of testimony.
5 instructions to pull the piles. 5 A. Yes.
6 A. That is correct. 6 Q. I'm trying to get the whole transcript
7 Q. And you later complained, did you 7 because I'm missing a page here.
8 not -- McElwee Brothers complained in the 8 A. Yes. I remember --
9 spring of 2003 that the pulling of the sheet 9 MR. BRUNO:
10 piles, the sheet piles, and the subsequent 10 Where did that come from? The
11 filling of the voids with bentonite slurry 11 depo.
12 caused greater difficulty dewatering the site; 12 MR. TREEBY:
13 is that correct? 13 From the -- from this proceeding.
14 A. Pulling of -- 14 MR. BRUNO:
15 Q. Sheet piles. 15 Well, was it produced by
16 A. I'm -- I'm lost because -- we're 16 somebody? Was it produced by the
17 talking about one situation. We pulled the 17 Corps? We didn't get a copy.
18 concrete piles. 18 MR. TREEBY:
19 Q. Right. 19 You didn't ask for a copy.
20 A. And we pulled -- 20 MR. BRUNO:
21 Q. Is that what was filled with bentonite 21 Oh, man. Come on. Our discovery
22 slurry? 22 requests are so broad -- come on,
23 A. That's correct. 23 Bill.
24 Q. But didn't you, or McElwee Brothers 24 MR. TREEBY:
25 which I assume is you -- is that correct? 25 You can't go by that kind of a
Page 279 Page 281
1 A. That's correct. 1 general statement.
2 Q. Okay -- complain that filling those 2 MR. BRUNO:
3 voids with bentonite slurry caused greater 3 How about this: You know that
4 difficulty with dewatering the site? 4 you have an obligation to continually
5 A. I can't -- I can't tie those two 5 update your responses. Come on. If
6 together. I know that pulling the piles caused 6 you got them from the Corps, the Corps
7 difficulty -- pulling the piles -- McElwee 7 has an obligation to update its
8 Brothers had a complaint about pulling the 8 responses. I know you didn't have
9 existing piles and the impact that pulling 9 them.
10 those existing piles and filing them with 10 MR. TREEBY:
11 bentonite, how it degraded the already poor 11 I don't know what you asked the
12 foundation such that when we drove the new 12 Corps for, Joe. I don't know that.
13 piling the anticipated results of driving with 13 MR. BRUNO:
14 a certain size hammer were impacted. We 14 Well, all I'm asking --
15 probably could have reduced the size of the 15 MR. TREEBY:
16 hammer with less soil friction on these piles. 16 I got it from the Corps.
17 I remember that being the bone of contention on 17 MR. BRUNO:
18 it. But not dewatering problems because of the 18 You got it from the Corps.
19 bentonite. 19 MR. TREEBY:
20 Q. Do you recall testifying about this in 20 Yes.
21 the appeal at the government contract board, 21 MR. LEVINE:
22 the Armed Services Contract Board, testifying 22 You want a copy?
23 about this issue of the bentonite slurry? 23 MR. BRUNO:
24 A. I can verify that a deposition was 24 Please.
25 taken by the Corps of Engineers of me. What it 25 Is there anything else that you

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1 all produced to WGI? I guess I need 1 And your answer is, when the joint
2 to know that. 2 venture received this deficiency, I recall the
3 MR. TREEBY: 3 dewatering system pumps I think were being
4 Yes. Yes. The answer is yes. 4 exchanged out for maintenance, and we also at
5 MR. LEVINE: 5 that time had a problem -- I say we also, we as
6 We have to seasonally update 6 in the joint venture and the Corps of Engineers
7 these things. 7 had a problem with the piezometers in this
8 MR. BRUNO: 8 area. As I mentioned earlier, the bentonite
9 I understand that. But would you 9 from pulling the piles flowed in the ground,
10 agree that this is seasonal since the 10 and we noticed that after we pulled the piles
11 guy is being deposed? Come on. 11 one of our piezometers wasn't functioning
12 MR. LEVINE: 12 properly, it kept reading at high water levels.
13 There's stuff here that you guys 13 So from an inspector's point of view, the
14 used today that wasn't produced to me 14 deficiency was written stating we weren't
15 until today, so -- 15 complying with the contract, without looking at
16 MR. BRUNO: 16 a technical and engineering review of the whole
17 No. It was produced to you the 17 situation, but the joint venture signed the
18 same day it was produced to me. 18 deficiency and said, hey, we'll fix the
19 Absolutely. 19 problem, close quote.
20 MR. LEVINE: 20 Obviously, you're talking about the
21 I didn't actually get a copy 21 notice that you got from the Corps, and that
22 until today. 22 you at least at the time in handwriting signed
23 (Brief recess.) 23 off yes, we understand and we'll fix it.
24 EXAMINATION BY MR. TREEBY: 24 A. Yes, sir.
25 Q. Okay. I'm going to try to make my 25 Q. Okay. And as I -- my limited
Page 283 Page 285
1 question a little more intelligible, 1 understanding, the problem was caused because a
2 Mr. McElwee. I was asking about the bentonite 2 piezometer was reading as though there were
3 causing the problem for dewatering. And I'm 3 high water flows --
4 sure that was a poor question on my part. But 4 A. Yes.
5 I'm going to read to you an answer that you 5 Q. -- is that correct?
6 gave on Page 285 of the transcript that was 6 A. That's correct.
7 taken on March 4th, 2005, Volume 2, actually, 7 Q. That's what I meant when I said --
8 and let me just read it to you, and then if you 8 when I asked you earlier that the pulling of
9 need -- because you may be able to answer the 9 the sheet piles and the filling of the voids
10 question. And if you need to look at this, 10 with bentonite caused a difficulty with the
11 then we can. 11 dewatering. The dewatering issue. Right?
12 MR. BRUNO: 12 A. Caused a problem. I'd like to define
13 Well, he needs to see the 13 the problem it caused. Only reading that
14 question for sure. 14 piezometer, meaning that the bentonite flowed
15 A. I want to -- remember what frame of 15 and probably stopped that piezometer up,
16 mind I was in at that time. 16 because it traveled through from one area to
17 MR. BRUNO: 17 the other. It didn't mean it caused a problem
18 Page? 18 with dewatering the hole. With the measuring
19 EXAMINATION BY MR. TREEBY: 19 device. It just clogged up a.
20 Q. Page 284 and 85. Here's the question 20 Q. Pipe. But the purpose of the
21 and here's the answer, and you can follow along 21 piezometer was to address dewatering.
22 if you wish, beginning at Line 23 on Page 284: 22 A. To read water levels. Not --
23 And the notice of deficiency, Number 4, which 23 Q. Right, to read water levels.
24 is on the third page, would you tell us what 24 A. Yes.
25 you recall about that notice? 25 Q. And if it was -- and I understand it

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1 may have been a bad reading. 1 it appears to be two letters, one dated
2 A. Bad reading. 2 March 18, 2003, one dated March 19, 2003, both
3 Q. Okay. But the indication was that 3 of them to you, from J. Michael Dixon, both of
4 there was a dewatering problem, and you're 4 them the subject is jacking and bore dewater.
5 saying that that probably was a false 5 And in both of these letters by Mr. Dixon, he
6 indication. 6 is indicating, is he not, that there is an
7 MR. BRUNO: 7 effective dewatering of this location?
8 Objection. Objection. That's 8 (Exhibit 25 was marked for
9 not at all what he means. 9 identification and is attached hereto.)
10 MR. TREEBY: 10 A. In the first page he's indicating that
11 That's fine, Joe. I've got your 11 the dewatering system is working properly. In
12 objection. I'm trying to understand 12 fact, he says, in his first paragraph, last
13 this. 13 sentence, this indicates that this sand stratum
14 A. There was a problem reading the 14 is in a drawdown condition.
15 measuring device because the measuring device 15 Q. All right. That's what I thought I
16 was stopped up, not with the dewatering. The 16 said. You're agreeing.
17 pumps were steady working, the water levels 17 MR. BRUNO:
18 were lower on other piezometers, they read 18 No. You do not say that.
19 lower levels, that one had a high level. 19 EXAMINATION BY MR. TREEBY:
20 Q. Uh-huh. 20 Q. What I asked was, in both of these
21 A. But in that small area, if you got 21 letters, he is indicating, is he not, that
22 four piezometers on each corner, one on each 22 there is an effective dewatering of this
23 corner and one is reading a high water level 23 location?
24 and the other three are not, there is a problem 24 A. Sir, I'm just making it clear that
25 with that straw, not a problem with the 25 he's saying there is an effective drawdown,
Page 287 Page 289
1 dewatering. Am I making sense? 1 it's working properly.
2 Q. I understand, but there would be -- 2 Q. Okay. That's all I was trying to say.
3 because of the problem with the piezometer, 3 I thought you were disagreeing with me.
4 assuming that's what it was, it was reading as 4 A. No, sir. I'm just telling you what
5 though there was a dewatering problem. 5 his letters say to me.
6 MR. BRUNO: 6 Mr. Treeby, I want to -- the second
7 Objection to form. 7 page of this same exhibit, I wanted to mention
8 EXAMINATION BY MR. TREEBY: 8 something that we just talked about, where he
9 Q. Is that correct? 9 talks about that trapped water in that second
10 A. That one piezometer was reading high, 10 paragraph, in the second letter he's
11 it wasn't reading accurately, yes. 11 reemphasizing the trapped water situation when
12 Q. And in fact -- and I'm showing you a 12 we talked about the bentonite traveling and
13 document we've marked McElwee Exhibit 26, which 13 trapping the water.
14 consists of two letters, they bear two 14 Q. Uh-huh.
15 different Bates numbers, actually. One Bates 15 A. And the piezometer that was reading
16 number is -- I'm sorry. Excuse me. 16 wrong.
17 THE WITNESS: 17 Q. Right. Was there in fact,
18 Mr. Treeby, Exhibit 25, which one 18 Mr. McElwee, a schedule that the Corps
19 is it? 19 promulgated or that you had given the Corps and
20 MR. TREEBY: 20 they agreed to for the completion of your work
21 I don't know. Maybe we skipped 21 on this job? Was there ever a schedule?
22 it. 22 A. There were schedules submitted to the
23 EXAMINATION BY MR. TREEBY: 23 Corps, but the Corps would never agree with any
24 Q. Okay. We'll make the one I'm about to 24 of schedules in the entire project.
25 do 25. Just rewrite it. Anyway, I show you -- 25 Q. They took the position that the

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1 project was several months behind schedule when 1 McElwee Exhibit Number 26.
2 they issued their default letter; isn't that 2 Were those safety issues that were
3 correct? 3 being addressed in this April 3rd, 2002
4 A. They took that position from the 4 memorandum from Mr. Roth to McElwee Brothers,
5 beginning of the project all the way to the 5 or were those quality control issues?
6 end. 6 (Exhibit 26 was marked for
7 Q. Are you saying that McElwee Brothers 7 identification and is attached hereto.)
8 did not agree that you were behind schedule? 8 A. Actually, they were quality control
9 A. McElwee Brothers never agreed, and 9 issues, quality control issues being presented
10 illustrated it in several pieces of 10 by the Corps as safety issues. And the reason
11 documentation that it was not behind schedule, 11 I say that is because Mr. J. Michael Dixon was
12 because whenever there were claims, there were 12 requested to review this particular notice and
13 claims submitted to the Corps, McElwee Brothers 13 give his assessment. And then he went down the
14 waited for responses, the Corps never 14 list, he said there's no safety problems
15 responded. The Corps wouldn't answer certain 15 concerned. My design and my system can support
16 questions, the Corps would not approve certain 16 everything that you're doing, and I don't know
17 submittals, on time, and they never would admit 17 why they have these problems.
18 to their delinquency in the project. They just 18 In fact, Mr. Dixon said, Melvin, I
19 kept saying McElwee Brothers was behind 19 don't understand why the Corps is nit picking
20 schedule. 20 you with such little stuff, they don't do this
21 Q. Did McElwee Brothers encounter any 21 on other people's jobs.
22 safety problems on the project? 22 EXAMINATION BY MR. TREEBY:
23 A. Yes, McElwee Brothers did have some 23 Q. And this is the Mr. Dixon who is
24 safety issue on the project. 24 deceased at this point?
25 Q. Did the Corps complain to McElwee 25 A. Yes. He has a response to this
Page 291 Page 293
1 Brothers about the safety problems on the site? 1 particular deficiency.
2 A. I would have to know particular 2 MR. BRUNO:
3 complaints. The reason I'm answering that 3 A writing?
4 question that way is we had a gentleman that 4 A. A written response, yes.
5 was involved in an accident on the project. 5 MR. BRUNO:
6 I'm referring to that. Two gentlemen. 6 A written response.
7 The Corps -- prior to one of the 7 EXAMINATION BY MR. TREEBY:
8 gentleman having that accident, the day before 8 Q. Do you have a written response?
9 the Corps came out and expressed a concern that 9 A. Sir, I'd have to verify. I hate to
10 the gentlemen was not wearing a safety harness. 10 say yeah, I do, and then I look in the file and
11 And when the Corps of Engineers safety guy 11 it's something I threw away. But I may can
12 mentioned that to me in particular, I 12 place my hand on that response.
13 instructed the superintendent to write the 13 (Off the record.)
14 gentlemen up immediately. And the 14 THE WITNESS:
15 superintendent had some qualms about doing so, 15 Those annotations are joint
16 but I told him that McElwee Brothers' policy is 16 venture numbers, and GAIC is Great
17 whenever an official comes from the Corps of 17 American Insurance Company, documents
18 Engineers and notifies me of a problem on the 18 they had.
19 job with safety, it is our duty and 19 MR. BRUNO:
20 responsibility to issue a warning to that 20 Okay. So that's the other
21 employee. And just so happened the next day 21 litigation.
22 that same employee did not wear a harness and 22 EXAMINATION BY MR. TREEBY:
23 fell inside of an excavated hole 25 feet down 23 Q. I show you a document marked McElwee
24 on his back on top of a couple of piles. 24 Exhibit 27. This letter of January 7, 2003 to
25 Q. I show you a document we are marking 25 you from the Corps has in it, among other

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1 things, safety concerns, does it not? 1 stuff like that, I only remember one area,
2 (Exhibit 27 was marked for 2 which was Phase 4, that's why I say I don't
3 identification and is attached hereto.) 3 know these.
4 A. Um -- would you point out -- 4 Q. Okay. Let me ask you this: Who was
5 EXAMINATION BY MR. TREEBY: 5 Ron Leslie?
6 Q. Yeah. Like at the bottom of the first 6 A. Ron Leslie? There was Ross Leslie.
7 page. 7 Q. Ross Leslie. Thank you.
8 A. Okay, I can verify that this document 8 A. Ross Leslie was project manager for
9 does state that. This unsigned document does 9 Tri-State Design Construction Company.
10 state that, yes. 10 Q. Did you have difficulties with him?
11 Q. Do you recall this? I thought you had 11 A. Very much so.
12 recalled earlier there were safety concerns 12 Q. And who was Steve Faluti?
13 that were brought up by the Corps. 13 A. Steve Falati was quality assurance
14 A. I did on other documents that I could 14 representative for the government. He was the
15 verify, that I saw myself. 15 on-site representative.
16 Q. So you don't believe this document 16 Q. Did you have any problems with him?
17 accurately sets forth safety concerns? 17 A. Did I have any problems? I had
18 A. I'm saying this document here says 18 problems relative to communications process and
19 that. 19 lines of authority, you know, that we looked at
20 Q. I understand. But are you saying 20 earlier that were defined during the partnering
21 this -- are you denying that this was ever 21 meeting and then the Corps decided that, hey,
22 given to you? That's what I'm trying to find 22 they didn't no longer want to play along with
23 out. You said it's unsigned. 23 it, and so they started communicating with Ross
24 A. Yeah. It is. And the only way I can 24 Leslie who was not an authorized person to
25 verify that it's something I received is -- 25 speak on behalf of the joint venture. That's
Page 295 Page 297
1 mostly everything I received was signed. You 1 where some of the problems began to come in at.
2 understand what I'm saying? 2 Yes. That's when I had problems with
3 Q. Uh-huh. And if you would turn to the 3 Mr. Falati.
4 second page of this exhibit which is unsigned, 4 Q. You indicated -- in fact, we have
5 there's -- and this is essentially the minutes 5 already put this in evidence -- that draft of
6 of a biweekly status and submittal meeting, 6 the complaint to the contracting board. Could
7 right? 7 you find that?
8 A. That's correct. 8 MR. BRUNO:
9 Q. Okay. And on the first full paragraph 9 Let me object to form. You've
10 on the second page talks about the problems 10 not put anything into evidence.
11 with the current dewatering situation on the 11 You've attached to this deposition
12 job site, is that right? 12 certain documents. They're not in
13 A. That's what it says, yes -- 13 evidence.
14 Q. Okay. 14 MR. TREEBY:
15 A. -- in that particular -- 15 Whatever.
16 Q. Excuse me. 16 MR. BRUNO:
17 A. This particular paragraph I think goes 17 Whatever?
18 along with Mr. Dixon 's Exhibit Number 25, 18 MR. TREEBY:
19 Page 2. 19 Joe, this witness has identified
20 Q. What's the date of Mr. Dixon 's 20 it, that's all.
21 letter? 21 MR. BRUNO:
22 A. Um -- March 19, 2003. 22 Thank you.
23 Q. Right. 23 MR. TREEBY:
24 A. Okay. But, why -- the comment 24 We don't have a judge here
25 relative to piezometers not reading right and 25 putting things in evidence.

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1 MR. BRUNO: 1 McElwee Brothers?
2 Yeah, but then, don't say they're 2 A. Ellis Jackson worked for McElwee
3 in evidence. 3 Brothers, yes.
4 MR. TREEBY: 4 Q. Okay. In other words, you and I guess
5 Okay. Whatever. 5 Mr. Jackson, whoever commissioned Gore,
6 MR. BRUNO: 6 believed that the soil conditions within the
7 Is that difficult? 7 work site would be more properly determined by
8 A. The complaint of the -- 8 soil borings taken within the work site.
9 EXAMINATION BY MR. TREEBY: 9 A. They must be somewhere in close
10 Q. Yeah, the draft complaint that you 10 proximity, at least a hundred feet.
11 said you had your handwritten note on. You 11 Q. Okay.
12 recall that? I just don't remember the exhibit 12 A. You know, the Corps uses -- the Corps,
13 number. Perhaps you can find it for me. 13 in the past, unless it's changed, has stated
14 A. I believe it's, um -- Exhibit 13. 14 that borings normally represent I think
15 Q. Thank you. 15 200 feet. In the radius of that boring.
16 A. Yes, sir. 16 Q. Okay. So you believed, did you not,
17 Q. And let me see if I can find it. If 17 and still believe, from what you're saying,
18 you would look at Paragraph 34 of this draft of 18 that soil conditions are individualized enough
19 the complaint this was filed in McElwee 19 from location to location that the Eustis soil
20 Brothers' appeal of the default determination 20 borings 165 feet away from your excavation at
21 by the contract officer. This was the appeal 21 the Dwyer Road job site were not representative
22 of that determination before the Armed Services 22 of the soil conditions at the excavation site.
23 Board of Contract Appeals. In Paragraph 34 23 A. That is true.
24 there's a statement here that -- in the second 24 Q. Now, you've identified, it's already
25 sentence -- I don't know, this sentence 25 in evidence, I was going to give it to you, but
Page 299 Page 301
1 beginning however, hindsight reveals -- 1 it's already?
2 Do you see that sentence? 2 MR. BRUNO:
3 A. Yes, sir. 3 Object to form.
4 Q. -- that the soils information in the 4 EXAMINATION BY MR. TREEBY:
5 Eustis report was unreliable for this 5 Q. In evidence, in my interpretation,
6 designation as the borings performed forming 6 means that you've identified it earlier today.
7 the basis of the report were taken some 7 But I don't remember. It was your son 's
8 165 feet from the Corps' final designated site 8 report that you say you reviewed and you stood
9 for the work. 9 behind.
10 Was that information given to the 10 A. Yes, sir.
11 Sonny Shields firm, Elizabeth Gordon, by you? 11 Q. With some pride, I'm sure.
12 A. Yes. By me and also by the project 12 A. Yes, sir. That's Exhibit Number 9.
13 superintendent that was hired. They had him 13 Q. Okay. In Exhibit Number 9, at the top
14 involved. Ellis Jackson worked on the project 14 of Page 10 of 13, the paper states, when
15 site and Shields spoke with him and he verified 15 designing a new T-wall structure the Corps did
16 the soil boring was 165 feet away from the 16 not take into account the soil conditions which
17 T-wall section and, therefore, it wasn't 17 impacted the production rate of MBIs, that's
18 representative of the soils at the site for the 18 McElwee Brothers, Incorporated 's dewatering
19 T-wall. That is why McElwee Brothers had Gore 19 system. Is that correct?
20 Engineering come take a soil boring right 20 I mean, was that a correct statement
21 adjacent, probably would have been five feet 21 in here? I think you've earlier said that you
22 away from the T-wall -- 22 stood behind what was in this, but I want to
23 Q. Okay. 23 make sure.
24 A. -- to show the soil conditions. 24 A. Yes. I -- yeah, this is -- I'm
25 Q. And this Ellis Jackson, he worked for 25 standing behind that.

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1 Q. And ten the next sentence says, the 1 mix bentonite where it will thicken up and
2 Corps was informed of excessive water in the 2 support a void. But in that -- on the job, at
3 excavation near the T-wall location. Is that 3 that time, what the Corps approved and allowed
4 correct? 4 to take place, it wasn't sufficient.
5 A. That's correct. I think I mentioned 5 Q. Okay. You go on to talk about the
6 we have photos that show the organic materials 6 pilings that you drove and made arrangements to
7 and water trickling in. Those photos are not 7 drive in accordance with the plans and
8 in here, but you should have those in your 8 specifications you were given. I assume those
9 possession at IKON. They were submitted in 9 were plans and specifications given by whom?
10 those documents. But McElwee Brothers has 10 A. Corps of Engineers.
11 photos showing water trickling in at the 11 Q. By the Corps of Engineers. And you
12 T-wall -- demolished T-wall. Just running in. 12 indicate the design was -- I say you. This
13 And that was above the excavation line inside 13 report, which I want to make sure you stand
14 the cofferdam or TRS, temporary restraining 14 behind, the design was purportedly based on
15 structure system. 15 existing soil conditions. In following the
16 Q. And then the report goes on to say, 16 design to its specifications, the piling were
17 however, the Corps did nothing to study, alter 17 going to reach its bearing capacity maximum
18 or reexamine the system designed to accommodate 18 strengths in a layer of dense sand. After
19 the designated soil conditions. 19 following the design to its specifications, the
20 Do you stand behind that statement? 20 pile did not reach their bearing capacity
21 A. I stand -- I stand behind that 21 because there was no layer of dense sand. Is
22 statement at a certain point prior to them 22 that correct?
23 redesigning after the piles were cracked. Now, 23 A. That is correct according to Gore 's
24 after the piles were cracked and the joint 24 soil boring.
25 venture was -- McElwee Brothers and the joint 25 Q. So the flaw in the design was due to
Page 303 Page 305
1 venture was defaulted off the job? Then the 1 inaccurate soils information given to you I
2 Corps came back with redesigning work. But as 2 believe you've indicated during the bidding
3 of the June 2003, I stand behind that statement 3 phase, and it was the Eustis soils information.
4 the way it's written. They would -- the Corps 4 Is that correct?
5 would not take a position in the design work 5 MR. BRUNO:
6 relative to the T-wall and the problems found. 6 No. That's not accurate. I'm
7 Q. Okay. Looking at the next paragraph 7 objecting to form because you're
8 in this report, also Page 10 of 13, it's a 8 misstating what he said and what I
9 paragraph beginning by pulling the piles. This 9 asked him.
10 is the concrete piles, is that what this is 10 MR. TREEBY:
11 referring to? 11 I don't even think you have a
12 A. Yes, sir. 12 clue what you just said, Mr. Bruno.
13 Q. Okay. Voids were created that 13 Your objection is noted.
14 weakened the already insufficient soils 14 MR. BRUNO:
15 conditions. To fill the voids, the Corps 15 I do have a clue. You want me to
16 ordered McElwee Brothers, Inc. to place a 16 explain it to you? He didn't get the
17 water-based treatment clay bentonite, which has 17 Eustis report during the prebid
18 no sufficient strength, in the existing 18 process. He got it after he got the
19 foundation openings. 19 contract. How about that?
20 Do you stand behind that statement? 20 MR. TREEBY:
21 A. I stand behind that statement at the 21 Your objection is noted.
22 rate that they wanted the bentonite applied. 22 MR. BRUNO:
23 If you don't mix bentonite appropriately at a 23 How about you remember what I
24 certain mixture, you're going to get that type 24 said?
25 of consistency, something loose. But you can 25 MR. TREEBY:

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1 How about your objection being 1 Page 11, the next page of the report.
2 noted and we go on. 2 If you would turn to that.
3 MR. BRUNO: 3 A. Yes, sir.
4 How about you don't tell me that 4 Q. And look at the third -- beginning the
5 I don't know what I just said, Bill. 5 third sentence reads, although McElwee Brothers
6 MR. TREEBY: 6 followed the design to its specifications and
7 You know everything, Joe. 7 plans and the piles cracked, the Corps faulted
8 MR. BRUNO: 8 McElwee Brothers for the flaw. You see that?
9 I know what I said. I know a 9 A. Yes, sir.
10 lot. I may not know everything, but I 10 Q. And this -- and you go on to say, this
11 know what I said. 11 flaw in the design was due to inaccurate soils
12 MR. TREEBY: 12 information given to the contractor during the
13 May we proceed? 13 building phase. Is that correct?
14 MR. BRUNO: 14 A. Yes, sir.
15 Yes, we can. 15 Q. And if I understand your testimony --
16 MR. TREEBY: 16 and I'm trying to understand it, I'm not trying
17 Thank you. 17 to argue with you -- that was because you
18 EXAMINATION BY MR. TREEBY: 18 believe, at least, the Eustis soils information
19 Q. Did you get soils information in the 19 that you were provided was 165 feet away from
20 prebidding phase of this job? 20 the excavation site and, therefore, not
21 A. I got a little soil information. As I 21 representative of what was in the excavation
22 was mentioning earlier, other information the 22 site. Is that correct?
23 Corps said was available in the plans and specs 23 A. That is correct as it relates to the
24 was not available. 24 Gore Engineering soils boring and the Eustis
25 Q. What company or what individual was 25 Engineering soils boring.
Page 307 Page 309
1 the source of the soils information that you 1 Q. Eustis?
2 had? 2 A. Eustis. Eustis. Eustis reports. If
3 A. The Corps of Engineers. 3 you take the two borings and put them together,
4 Q. The prebidding. 4 they're not identical.
5 A. Prebidding. 5 Q. Okay. That's fine.
6 Q. Uh-huh. 6 And it was Gore taking soil borings
7 A. The Corps of Engineers had a boring 7 right at the excavation site that concluded
8 legend in the plans. 8 there was no dense sand layer and therefore
9 Q. And who provided, if you know, the 9 that McElwee Brothers performance was not the
10 boring legend to the Corps? 10 reason the piling cracked during installation,
11 A. From my recollection, that legend was 11 is that correct?
12 provided by Eustis. 12 A. Gore 's report does not go into those
13 Q. That's what I thought. 13 details. It merely tells you the soil
14 A. That legend is the same legend that's 14 conditions at that T-wall section. However,
15 in this investigative report. I think it's 15 the conclusion was drawn through a meeting that
16 about one or two sheets. But it wasn't the 16 McElwee Brothers had with McElwee Brothers,
17 complete file for knowing all the soils 17 Tri-State, Gore Engineering, Mr. Dixon, Ice
18 information on the job. 18 Equipment -- there were several subcontractors
19 MR. BRUNO: 19 and service suppliers that McElwee Brothers
20 That's exactly what he said this 20 utilized on the project and held a conference
21 morning. 21 to discuss the problems at hand. Gulf Coast
22 EXAMINATION BY MR. TREEBY: 22 Pre-Stress.
23 Q. But it was from Eustis, right? 23 Q. Okay. I don't mind any of this
24 A. Yes. 24 information, but I was really looking at that
25 Q. Thank you. 25 last sentence, if you will, on Page 11 of 13.

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1 A. Yes, sir. 1 boring by Gore engineering.
2 Q. Gore Engineering soils sampling 2 Q. Okay.
3 illustrated there was no dense sand layer, 3 A. Okay? Where the tip of the pile is
4 rather it was a soft layer, to support the 4 supposed to be I can't recollect, but if you
5 T-wall designed by the corps. And McElwee 5 give me a set of plans and I find that tip
6 Brothers performance could not be ruled as the 6 elevation I can point it on here and I can show
7 factor for the piling cracking during 7 you this off of there.
8 installation. 8 Q. Is there a dense sand layer shown on
9 Do you stand behind that statement? 9 the Gore boring sampling?
10 A. I stand behind that statement. 10 A. There's a medium dense sand layer,
11 Q. Okay. My question, where I was 11 there's a loose gray fine sand layer, um --
12 heading with that, was, we have the Gore 12 there's various dark gray organic clay, and
13 report. Could you point out to us in the Gore 13 there's very soft gray clay. Again, I got to
14 report where that's documented? 14 see the tip of the pile elevation to tell you
15 A. And I was just clearing it up for you 15 that. I don't remember that.
16 that it did not happen in the Gore report, that 16 Q. At what level does the Gore boring
17 that conclusion was drawn from a conference. I 17 show a sand layer?
18 just explained where the conclusion came from, 18 MR. BRUNO:
19 after McElwee Brothers consulted with its 19 Which Gore boring are we looking
20 service suppliers, it's equipment suppliers 20 at, 3 June 2003 or 2001?
21 relative to the issue at hand, the cracked 21 A. I need to look at the 2003, the
22 piling. 22 latest.
23 Q. Okay. So the -- it would be -- Gore 23 MR. BRUNO:
24 Engineering's soil sampling would not 24 '3?
25 illustrate that McElwee Brothers' performance 25 A. I'm looking at 2001. I'm sorry.
Page 311 Page 313
1 called not be ruled as the factor for the 1 MR. BRUNO:
2 piling cracking. Is that correct? 2 You gave him the wrong one.
3 MR. BRUNO: 3 A. I grabbed this paper.
4 Objection. 4 MR. BRUNO:
5 EXAMINATION BY MR. TREEBY: 5 You know, that's why you got to
6 Q. I'm trying to understand. 6 make sure you get the right --
7 A. The Gore report would not talk about 7 EXAMINATION BY MR. TREEBY:
8 McElwee Brothers' performance period. It would 8 Q. What exhibit are you looking at?
9 only evaluate the soil conditions and show you 9 A. I grabbed the paper in front of me.
10 the borings and show you what's at the depth 10 It says Gore Engineering.
11 and what supposed to be anticipated what's 11 MR. BRUNO:
12 actually there. 12 It's not an exhibit.
13 Q. Would it illustrate that there was no 13 A. It's not an exhibit.
14 dense sand layer? 14 MR. TREEBY:
15 A. At the depth? Yes, it would. 15 Okay. So it's what you gave him.
16 Q. Rather a soft layer. It would show 16 MR. BRUNO:
17 that? 17 No, it's not what I gave him.
18 A. It would show that. 18 THE WITNESS:
19 Q. Can you show us that on the Gore 19 This was sitting here when I came
20 report? 20 here at the table.
21 A. Now, I need to know -- I need to see 21 MR. BRUNO:
22 plans so I can tell you the depth of the plans 22 That's a copy of the materials
23 versus the depths of where we are. Where the 23 that he supplied to Bea. I told
24 tip of the pile was supposed to be versus what 24 you -- I gave you a copy this morning.
25 layer it's going to penetrate. Here's that 25 MR. TREEBY:

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1 I didn't provide it. That's all 1 Q. Did you lose money as a result of
2 I'm saying. 2 Corps decision to terminate this contract?
3 MR. BRUNO: 3 A. Yes, I did.
4 Well, all right. I don't want 4 Q. How much money did you lose?
5 this record to be any more confused 5 A. I'm $1.9 million in debt to a bonding
6 than it is. So it's the '03. Here's 6 company. Not only that, anticipated profits.
7 '03. 7 Q. Excuse me. I don't mean to interrupt
8 THE WITNESS: 8 you. I thought you were finished.
9 Okay. I have the '03 boring just 9 MR. BRUNO:
10 handed to me by Mr. Bruno. 10 Well, finish.
11 EXAMINATION BY MR. TREEBY: 11 A. $1.9 million due to a bonding company,
12 Q. I do, too. 12 plus anticipated profits on this particular
13 A. And, um -- on the '03 boring, if we 13 project. That was lost by McElwee Brothers.
14 looking at depths below the surface, at 14 EXAMINATION BY MR. TREEBY:
15 approximately between 71 and 76.5 feet below 15 Q. How much were the anticipated profits?
16 the surface we have medium dense reddish tan 16 A. I haven't even looked at the records
17 and light gray clay, fine sand, we have -- 17 and books in a while. I mean, I'd have to --
18 Q. Silty find sand you mean? No, I see 18 Q. What's your best judgment of what your
19 clayey fine sand. 19 anticipated profits were?
20 A. I said between -- 20 A. The anticipate profits on that
21 Q. Yeah, I see it. I see it. 21 particular project was one million dollars.
22 A. Um -- I also see some, um -- if you 22 Q. Okay. Who do you blame for the loss
23 looking between there we've got lose reddish 23 of that money?
24 tan clay and light gray sand. I need to know 24 A. A combination of the -- my joint
25 exactly where that tip was supposed to be in 25 venture partner, basically, and along with the
Page 315 Page 317
1 order to tell you, and look at this boring 1 Corps and its, um -- its way in how it
2 versus the contract plan boring. 2 administered that project.
3 Q. There is also dense gray fine sand at 3 Q. And you've already identified, I
4 between 42 and 48.5, is there not? 4 believe, at least to my knowledge, based on
5 A. That's there, but that's not the tip 5 what I've been able to find out, the other
6 of the pile I don't believe. That pile was 6 litigations that were related to this project.
7 70-something feet long. And it didn't go 7 A. Yes.
8 straight down, it went on an angle, so I'd have 8 Q. And those litigations either cost you
9 to calculate the leg of that angle to tell you 9 money or significant expenditure of your
10 where the tip level is. 10 energy?
11 Q. But it is your testimony that if we 11 A. That's true. That's true.
12 determined the tip of the design pile it will 12 Q. And you also blame that on your joint
13 not -- it would not have rested in dense sand. 13 venture partners and/or the Corps.
14 A. That is true in accordance with the 14 A. Yes.
15 boring that was given in the contract plan. 15 Q. When did you first meet Robert Bea?
16 Q. Did you agree with the Corps decision 16 A. If I can look back at the Exhibit I'll
17 to terminate the contract? 17 give you an approximate date. Let me look at,
18 A. Absolutely not. 18 um --
19 Q. You still don't agree with it, right? 19 MR. BRUNO:
20 A. Well, it doesn't matter whether I 20 That letter?
21 agree or not, but no, I don't agree. I never 21 EXAMINATION BY MR. TREEBY:
22 did agree. 22 Q. Let me show you something else that
23 Q. Well, you haven't changed your mind, 23 might help you.
24 you still don't agree. 24 A. Yeah. My response to that, your
25 A. No, I don't agree. 25 Request for Production of documents?

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1 Q. Yeah. I'll help. 1 MR. BRUNO:
2 MR. BRUNO: 2 Yes.
3 October, '05? This one? 3 MR. TREEBY:
4 MR. TREEBY: 4 Or is it a complaint?
5 I've got an exhibit, Joe. Let me 5 MR. BRUNO:
6 just get it going. 6 It's a complaint, Bill. It's a
7 EXAMINATION BY MR. TREEBY: 7 complaint and an objection. Lodge my
8 Q. I show you document that -- and I know 8 complaint.
9 part of this has already been shown to you by 9 EXAMINATION BY MR. TREEBY:
10 Mr. Bruno and you have identified it, and it's 10 Q. Does this help you determine when you
11 not in evidence. 11 first met Dr. Bea?
12 MR. BRUNO: 12 A. Somewhere there about, yes.
13 No, it's been attached. 13 Q. I assume it was sometime before
14 EXAMINATION BY MR. BRUNO: 14 October 14. Is that fair?
15 Q. But it's certainly something that's 15 A. Yes. I wanted to look at your request
16 been attached to the deposition by Mr. Bruno, 16 for documents so I could check the date, but
17 part of this, but I'm going to put the whole 17 you told me don't worry about it look at this
18 thing in. 18 document, but it's around that time.
19 MR. BRUNO: 19 Q. Do you think -- okay. Hurricane
20 Yeah, attach the whole thing. 20 Katrina occurred -- hit land August 29 of 2005.
21 EXAMINATION BY MR. TREEBY: 21 This is October 14th. Do you have some
22 Q. And I've marked it as Exhibit -- I'm 22 recollection of how long after Hurricane
23 going to introduce to you the entire thing and 23 Katrina you first met Robert Bea?
24 see if I'm right. Exhibit 28. (Tendering.) 24 A. May I?
25 (Exhibit 28 was marked for 25 Q. Sure. Look at anything you want to,
Page 319 Page 321
1 identification and is attached hereto.) 1 sure.
2 MR. BRUNO: 2 A. Okay. Thank you. And I can give you
3 You mean you're going to attach 3 a better response. Okay, that looks like the
4 the Corps materials again? 4 earliest date. So -- somewhere around October,
5 MR. TREEBY: 5 2005. And Katrina did happen in August, but
6 Yes. Exactly. 6 what year?
7 A. Wait. It's got the cover sheet that 7 MR. BRUNO:
8 was missing. 8 '05.
9 MR. BRUNO: 9 A. '05.
10 I asked, I believe at the time 10 EXAMINATION BY MR. TREEBY:
11 that I showed that to you, whether 11 Q. And looking at the first page of
12 anyone wanted to attach it as an 12 Exhibit 28, you indicate in it, in the second
13 exhibit and no one said anything in 13 paragraph of your letter, why you are sending
14 response. 14 this to Robert Bea; is that correct?
15 MR. TREEBY: 15 A. That's correct.
16 Joe, let's move on. You're just 16 Q. And you sent this to Robert Bea at his
17 wasting time. 17 home address, is that correct?
18 MR. BRUNO: 18 A. That is correct.
19 No. You're wasting time. First 19 Q. How did you get his home address?
20 of all, we've gone over that document 20 A. It may have been during a telephone
21 and the document you now seek to 21 call or something that we talked.
22 attach to the record. 22 Q. So you believe you had a telephone --
23 MR. TREEBY: 23 I'm trying to get you to recall how you first
24 Okay, Joe. Thank you. Is that 24 came in contact with Robert Bea.
25 an objection? 25 A. Actually, I'm going to tell you how I

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1 first initiated some contact. I was reviewing 1 A. He didn't know who Dr. Bea was.
2 levees.org. I don't know if you're familiar 2 Q. On -- in the abstract of the document,
3 with that, levee.org. 3 on Page 2 of 13, under the heading Results, and
4 Are you familiar with levee.org? 4 I'll just read it, it says, intrigued with the
5 Q. It doesn't matter whether I am. I'm 5 construction results of McElwee Brothers, Inc.
6 just listening to you. 6 on its U.S. Army Corps of Engineers project --
7 A. I was reviewing levees.org and I read 7 and I won't put the number --
8 some correspondence where Dr. Bea was involved 8 A. What page are we on? I'm trying to
9 with the, um -- levees investigation team in 9 follow you.
10 dealing with the Katrina issue. And I think I 10 Q. 3 of 13.
11 may have placed a call to him at that time, 11 A. Okay.
12 just cold called. 12 Q. You see Results?
13 Q. So you believe you initiated the 13 A. Yes, sir.
14 communication with him, not the other way 14 Q. Intrigued with the construction
15 around? 15 results of McElwee Brothers, Inc. on its U.S.
16 A. From my recollection, I initiated the 16 Army Corps of Engineers project, and it has a
17 contact with him. 17 number, Dr. Bea asked that McElwee Brothers
18 Q. Can you give us your best estimate of 18 share its experience on that project.
19 how long before this letter of October 14 that 19 A. Yes.
20 was? 20 Q. Is that correct?
21 A. It wasn't -- it may have been a week, 21 A. That's correct.
22 two weeks. 22 Q. Did he make that request of you?
23 Q. Okay. Your letter -- am I correct; 23 A. Um -- after the visit -- remember I
24 your letter does not reference any specific 24 told you there was a visit -- that Dr. Bea came
25 location? Is that fair? 25 to visit with McElwee Brothers in Hammond in a
Page 323 Page 325
1 A. That's correct. No specific location, 1 conference room where we brought the documents
2 just a concept, an idea of engineering 2 and showed them to him, yes, he made that
3 principles. 3 request at that time. He said, Melvin --
4 Q. And similarly, the attachment that you 4 Q. Excuse me. So his visit was before
5 sent that Mr. Bruno went over in some detail 5 November 28th, 2005.
6 with you earlier does not reference a specific 6 A. Yes, it was.
7 site. 7 Q. Did Professor Bea ask you to be
8 A. It just talks about earth in general. 8 involved in what he has subsequently called the
9 Anywhere you go there's the same problem. 9 ILIT investigation and report?
10 Q. Okay. I take it from your testimony 10 A. Is that for the levee investigation
11 you believe your first contact with Robert Bea 11 team, that big report that we're talking about?
12 was by telephone. Is that right? 12 Q. Yes.
13 A. Yes, sir. 13 A. No, he didn't. In fact, I didn't know
14 Q. If you would look back, and I don't 14 McElwee Brothers was in that report until you
15 have the exhibit number, but the report, 15 mentioned it during a discovery request and you
16 Post-Katrina forensic hurricane levee failure 16 said Dr. Bea mentions this company at this
17 evaluation that your son wrote for his 17 page. That was my first time ever knowing that
18 professor or his instructor at Grambling, 18 McElwee Brothers was involved in that report.
19 Exhibit 9? 19 There was no discussion about it.
20 A. Yes. 20 Q. So you did not know, then, that
21 Q. Let me ask you this, first: Do you 21 information you were providing him was being
22 think your son had some earlier communications 22 solicited by him for that report.
23 with Robert Bea than you did? 23 A. I knew information was being
24 A. No, sir. He wouldn't have. 24 solicited. I knew he was investigating. I
25 Q. Okay. 25 don't take it to be he pulled a trick on me,

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1 no. I was sharing information with him so that 1 possession, Dr. Bea and them still had it, but
2 he could see existing conditions somewhere else 2 that disk is going to made available to you.
3 versus destruction that's already taken place 3 Q. When?
4 and trying to do forensics on the after parts 4 A. It should be within the next three --
5 of it. 5 two days I would say.
6 Q. Did he tell you whether or not, and I 6 Q. When did you get it back? You gave it
7 don't know -- 7 to him, but when did you get it back?
8 MR. TREEBY: 8 A. I haven't gotten it back.
9 I don't have any information, 9 Q. All right. He's apparently committed
10 Mr. Bruno. 10 to give it back to you.
11 EXAMINATION BY MR. TREEBY: 11 A. Yes.
12 Q. But did he tell you whether or not he 12 Q. When did you have that conversation
13 was recording any of the telephone 13 with Dr. Bea?
14 conversations with you? 14 A. There's a third-party conversation.
15 A. He never told me that. He never 15 Q. Who was the conversation with?
16 indicated that was recording conversations. 16 A. Um -- a gentleman working for him
17 Q. Okay. Have you provided, in response 17 named -- I can't think of his name. Let me
18 to the subpoena that we gave, I think you've 18 think. Rosenberg.
19 answered this but I just want to make sure, us 19 Q. Do you have a first name?
20 all the documents that he request from you and 20 A. Dave Rosenberg.
21 that you gave him? 21 Q. Where is Mr. Rosenberg, if you know;
22 A. Yes, sir. 22 where is he located?
23 Q. There are none that have been thrown 23 A. I only contact him on the telephone.
24 away? 24 I really don't know.
25 A. I mentioned to you that there have 25 Q. Well, do you have to call a local
Page 327 Page 329
1 been documents that have been thrown away by 1 call. Is it a long-distance call?
2 McElwee Brothers, and I asked your organization 2 A. I call a New Orleans number.
3 to get with Dr. Bea. And this letter is one of 3 MR. BRUNO:
4 them. 4 He's local, I think.
5 MR. BRUNO: 5 A. Actually, his number -- he's local,
6 We have already gone through 6 but his number is not local.
7 this. Objection. We have already 7 MR. BRUNO:
8 gone through this twice before. Given 8 His number is long distance. The
9 the fact that you're complaining about 9 point is, though, that you subpoenaed
10 time, this is getting to be 10 the same stuff and got it from Bea
11 ridiculous. 11 already. So I don't know why you're
12 EXAMINATION BY MR. TREEBY: 12 dragging us through the mud.
13 Q. On how many different occasions, 13 MR. TREEBY:
14 Mr. McElwee, did you send materials to Dr. Bea? 14 We'll see.
15 A. Oh, I can't really remember the 15 (Brief recess.)
16 number, but I did E-mails, um -- I did some 16 EXAMINATION BY MR. TREEBY:
17 personal box deliveries, that's the disk you 17 Q. Mr. McElwee, I show you a document
18 saw at IKON, and then there's another disk 18 we've marked Exhibit 29 which is an E-mail from
19 since that time that's coming to you that is at 19 Dr. Bea to you dated Wednesday, January 4,
20 IKON. 20 2006. This was Exhibit A to your subpoena
21 Q. So there's another disk I don't have 21 response to me. And in this E-mail Dr. Bea is
22 het? 22 asking you for a meeting for, and I quote, the
23 A. There's another disk you don't have 23 purpose of gathering more background on the
24 yet, and the reason you didn't get it back then 24 construction aspects of the flood defense
25 is because I didn't have the documents in my 25 system for the Greater New Orleans area. And

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Page 330 Page 332
1 you responded, on Monday, January 9, also on 1 possession that I didn't have as of the last
2 this document, asking for 24 hours notice for 2 subpoena request.
3 that meeting. 3 Q. Okay. Was your -- this meeting that
4 You see that? 4 took place in this January time frame, was your
5 (Exhibit 29 was marked for 5 family also present?
6 identification and is attached hereto.) 6 A. My family was present at the Lakeview
7 A. Yes, sir. 7 meeting, yes.
8 EXAMINATION BY MR. TREEBY: 8 Q. Would you -- who in your family was
9 Q. Did that meeting take place? 9 present?
10 A. Sir, I'm going to answer like this: I 10 A. My entire family. My wife Sylvia --
11 came -- I came to New Orleans during a time 11 you know her in some documents as Sylvia Hurst
12 frame when Dr. Bea was, um -- meeting with the 12 which is her maiden name -- Melvin, Jr.,
13 Lakeview residents. And I don't know if 13 Millard, and my daughter Malonda.
14 that -- this turned into that meeting. I'm 14 Q. You've indicated this was a Lakeview
15 just telling you about the meeting times I've 15 meeting. Did you know the other people who
16 met with him. I told you about the first time 16 were present besides -- I know you said you met
17 with the conference. The second time was at 17 Robert Bea there again. You had met him once
18 Lakeview. And there was no other meeting 18 before?
19 between those two meetings. But Dr. Bea did 19 A. Actually, I knew no one but Dr. Bea
20 contact me and say, I want you to show up at a 20 and, um -- a couple of other people only
21 meeting with the Lakeview residents. And I was 21 because of television. That was the LSU
22 there, and he introduced me to several of his 22 professor, um -- I can't think of his name --
23 colleagues and people that he was involved with 23 with the glasses, curly hair.
24 dealing with this levee thing. 24 Q. Is that Van Heerden?
25 Q. Do you believe that was in around this 25 A. Yes. I knew him from television. I
Page 331 Page 333
1 time frame, January of 2006? 1 knew Garland --
2 A. I believe it was, sir. 2 Q. Robinette?
3 Q. Okay. 3 A. -- Robinette from television, but no
4 A. I'm believing it was. 4 one personally. Everybody else was introduced
5 Q. I note in the E-mail that I just read 5 to me.
6 that Dr. Bea is asking for more background. 6 Q. Okay. I show you a document which
7 What background had you previously 7 we've marked McElwee Exhibit 30, which is an
8 given him? 8 E-mail that I believe you produced to us as
9 A. Well, I mentioned the meeting, the 9 Exhibit B to your response. It's a January 14,
10 conference. 10 2006 E-mail from Robert Bea to you, and in it
11 Q. Uh-huh. 11 he states, Melvin, I want to thank you and your
12 A. And I gave him an oral presentation of 12 family for all of your kindness and our
13 the project and let him look at all the 13 meeting. Attached are two documents that can
14 documents. That's what I gave him. 14 help your son take the next steps. I will send
15 Q. And that was the Dwyer Road project. 15 the electronic version of my books later, Bob.
16 A. That was the Dwyer Road project, yes, 16 Did you ever -- I assume -- did you
17 sir. 17 receive this E-mail?
18 Q. Okay. 18 (Exhibit 30 was marked for
19 A. Mr. Treeby, may I state for the 19 identification and is attached hereto.)
20 record, which I did state off the record, that 20 A. Yes, sir, I did.
21 the disk is available at IKON of the documents 21 EXAMINATION BY MR. TREEBY:
22 that you asked me when they're going to be 22 Q. What was attached to the E-mail?
23 available. They are available right now. You 23 A. Um -- I think it was a draft report of
24 can call IKON and pay the cost for the other 24 the independent levee investigation team. The
25 documents that are in Dr. Bea 's colleague's 25 draft report. Because -- and the reason I say

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Page 334 Page 336
1 draft is the financial report, after I saw your 1 identification and is attached hereto.)
2 request for production of documents and you 2 A. At the top? This is an E-mail printed
3 mentioned that McElwee was in that report, it 3 on my computer -- I think it is, yes.
4 was different than the initial report that he 4 EXAMINATION BY MR. TREEBY:
5 sent to me. It was -- so it was a draft report 5 Q. Yeah. Well, you gave it to me, it was
6 of the final report that you have in your 6 Exhibit C to your response to the subpoena.
7 possession. 7 A. Right. Right. I did, because here's
8 Q. Do you not -- do you no longer have 8 the fax. I faxed you that document, yes, on
9 the attachment to this E-mail? 9 the bottom.
10 A. I have that attachment. It's pretty 10 Q. But on the top, under your name it's
11 thick. I don't have it on computer form. I 11 got from Robert Bea, the date, to you, re: You
12 printed it out when he sent it to me. And it 12 are invited.
13 was about that thick. (Indicating.) 13 A. That's correct.
14 Q. Was there some reason that you didn't 14 Q. And then it's really a sting of
15 give that to us in response to your subpoena? 15 E-mails that begins, as best I can tell, and
16 A. The reason was you had the final 16 again this is the best I can tell, it
17 report, so I didn't see a need to duplicate 17 appears -- it begins with one at the bottom
18 something that you already had. You had the 18 from Robert Bea to you dated May 17, 2006. You
19 final report. 19 see that?
20 Q. Well, I would particularly want 20 A. On the second page?
21 anything he gave you, and that was specifically 21 Q. Well, no, it starts at the bottom of
22 requested in the subpoena. Do you still have 22 the first page.
23 it? 23 MR. BRUNO:
24 A. Sir, you have no problem -- 24 No, it starts at the bottom of
25 Q. Do you still have it? 25 the second page.
Page 335 Page 337
1 A. I still have that printed out. You 1 EXAMINATION BY MR. TREEBY:
2 can have it. 2 Q. With all due respect to Mr. Bruno 's
3 Q. Want a copy of what you've got. 3 eyesight, if you will look up from the bottom
4 A. Yes, sir. 4 of the first page, it says, Page 1 of 3 at the
5 Q. And I believe it's responsive to the 5 top, it says, original message from Robert Bea
6 subpoena. 6 sent Wednesday, May 17, 2006, 1042 a.m, to
7 A. That's fine. I mean, I just thought I 7 Melvin M.L. McElvee, Sr. You see that?
8 was duplicating things by sending you a draft 8 A. I see that part of the page you're
9 versus the final copy. 9 referring to, yes.
10 MR. BRUNO: 10 Q. That would be caption of an E-mail
11 You are duplicating things, but 11 from him to you, would it not?
12 that's okay. They get paid by the 12 A. Yes, it would.
13 hour. 13 Q. Okay. And then it says, announcement:
14 EXAMINATION BY MR. TREEBY: 14 You're invited to attend, and it continues, it
15 Q. The next E-mail we have is one dated 15 looks to me, like on the second page. Is that
16 June 22nd, 2006, which was marked as Exhibit C. 16 correct?
17 It's Exhibit 31. I mark it here McElwee 17 A. Yes.
18 Exhibit 31. And I notice that you are 18 Q. Right.
19 thanking -- let me just ask a general question 19 MR. BRUNO:
20 about this, because I was confused by this. 20 Right. On the second page.
21 This purports to be printed obviously on your 21 A. He was inviting me to the Sheraton New
22 computer, Melvin M. That's what that means 22 Orleans --
23 when your name is it at the top, is that 23 EXAMINATION BY MR. TREEBY:
24 correct? 24 Q. For an event on May 22nd.
25 (Exhibit 31 was marked for 25 A. That's correct.

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Page 338 Page 340
1 Q. Okay. And then after the invitation 1 EXAMINATION BY MR. TREEBY:
2 there's some more text. It says, I think we 2 Q. Can you explain it?
3 got it put together correctly, thanks for your 3 A. I can explain this email to you coming
4 help, but it is not over, only started. Bob. 4 from the bottom up on the second page.
5 You see that? 5 Q. Can you explain why you don't have an
6 A. Yes, I see that. 6 address on your -- before your note to him?
7 Q. Here's what's confusing me: I see 7 That's my question.
8 interjected between -- on the first page, 8 A. I cannot answer a computer glitch.
9 between Bob, there, and the beginning of the 9 I'm not a computer expert.
10 next E-mail, I see some language that I presume 10 Q. Okay. You can't answer.
11 is from you. Is that correct? 11 A. No.
12 A. Point the language out and I'm going 12 Q. That's all I'm asking. You don't have
13 to tell you what -- 13 an answer to that. Then there is something
14 Q. Thanks for the invitation. 14 that says, in that same section of the E-mail,
15 A. Yeah. Thanks for the invitation. 15 would you -- well, first, look at it, between
16 That's from me. 16 Bob on the first page and then original message
17 Q. But what I don't see on this is any 17 on the first page, is all that you're text?
18 typical E-mail address line from somebody to 18 A. Thanks for the invitation? Yes.
19 somebody. 19 Sorry I was out of town during that week. Yes.
20 A. I can't answer the question on how 20 Is it possible that I may receive a copy of the
21 that happened. I mean, I really can't. 21 report at our mailing address? Yes. And I
22 Q. It looks like to me this was an 22 gave him the mailing address to send the copy
23 edited -- this has been edited before it was 23 of the report. Um -- the final report.
24 printed. Does it looks like that to you? 24 I still haven't received any of your
25 A. No. You mean -- if you're inferring 25 attachments on your last E-mail correspondence.
Page 339 Page 341
1 that I edited -- 1 Again, thanks for the invitation. And if there
2 Q. I'm not inferring anything. 2 is anything else I can help with let me know.
3 MR. BRUNO: 3 Q. So all that's yours?
4 Yes, you are. 4 A. That is me. That's me.
5 MR. TREEBY: 5 Q. Okay. That's what I wanted to know.
6 I'm not inferring a thing. 6 Was there any -- to your knowledge,
7 EXAMINATION BY MR. TREEBY: 7 was there any E-mail between you and Bob Bea
8 Q. Do you know of any E-mail that goes 8 between January 14, the earlier exhibit that
9 out and that's printed without a from and a to 9 you gave me, Exhibit B, and this Exhibit C?
10 and a date on it? 10 A. I can't -- if I had it, you have it.
11 MR. BRUNO: 11 I'm not going to tell you there wasn't one.
12 Yes. All the time. 12 Q. That's a different question. I'm
13 A. Yes. It happens. 13 really -- from your memory, can you tell me was
14 MR. TREEBY: 14 there any E-mail exchange between you and
15 Joe, I'm not taking your -- you 15 Dr. Bea between January 14, 2006, and May 17,
16 want to get under oath and I'll take 16 2006? From your memory.
17 your testimony? 17 A. I want to approach the answer to this
18 MR. BRUNO: 18 question with an abundance of caution, and the
19 Don't. I'm just so resentful of 19 reason is, obviously tons of E-mails, and
20 your suggestion that a goofy E-mail 20 sometimes some may go through and I deleted
21 like this, which is an invitation to a 21 them and it's gone. Okay? And you may have a
22 presentation has been edited? Give me 22 copy of an E-mail that Bob sent me that I'm not
23 a break. 23 aware of but I didn't print a copy of that out
24 MR. TREEBY: 24 at this time or even read it.
25 I'm trying to find out. 25 Q. I wouldn't trick you like that. I

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Page 342 Page 344
1 don't have any E-mail. 1 Q. -- a similar question to the one I
2 MR. BRUNO: 2 asked about the prior one. And again, I just
3 Oh, please. 3 want to make sure. This again is an E-mail
4 EXAMINATION BY MR. TREEBY: 4 that appears to have other E-mails cut into it.
5 Q. I have no E-mail from anybody between 5 What I mean by that is, it says, Happy Friday,
6 those dates. 6 Melvin. That's the way it starts. And it's
7 A. Well, to my knowledge -- 7 got some text, then it says Dr. Bea. And it
8 Q. My question to you is -- and I 8 says, now responses to your E-mail -- your
9 understand people delete E-mails. I do it 9 E-mail, meaning you, I believe -- follow below.
10 myself. My question to you is, do you remember 10 And then there's a section that says thanks a
11 whether there was any E-mail exchange -- 11 million with a bunch of exclamation points.
12 A. No, sir. 12 And it goes on, Sylvia says hello. I assume
13 Q. -- between you and Dr. Bea -- listen 13 that's from you.
14 carefully -- between you and Dr. Bea between 14 A. Okay. Let me tell you what Dr. Bea is
15 January 14, 2006, and May 17, 2006? 15 doing.
16 It's not in there, I can tell you 16 Q. Is that correct?
17 that. 17 A. That's correct. Dr. Bea took what --
18 A. It's not in the response? Okay, no, 18 my E-mail, and when I said something, he
19 sir. If it's not here, I don't remember. 19 responded. You know, he just -- that's the way
20 Q. You don't remember it. 20 he is.
21 A. No, sir. And I want to apologize 21 MR. BRUNO:
22 because I have been tricked up like that by 22 He cut and pastes.
23 Lloyd Shields. I'll answer a question, and 23 A. I say thanks a million. That's what I
24 trying to be honest, and then all of a sudden 24 said. And he came back and said, and hello
25 boom, he's trapping me. So I'm doing it with 25 with hugs to your family. It's people like you
Page 343 Page 345
1 caution. 1 that make the place work.
2 Q. I have in fact -- I'm not commenting 2 In my E-mail I said, to date I think
3 on that, but all I'm telling you is I have 3 you're the only man telling the truth about the
4 subpoenaed E-mail from Dr. Bea, I've subpoenaed 4 current conditions of the levees as they relate
5 E-mail from ILIT. If I had any between these 5 to the safety for the American public. Dr. Bea
6 dates, I would tell you. It just, I'm asking 6 answered me back by saying, I hope not.
7 from your memory if during that four-month or 7 So that's what was going on there.
8 five-month period you remember any. 8 Dr. Bea did that. But I had sent him an E-mail
9 A. No, sir. 9 with this same excerpts in it, and I think he
10 Q. Okay. 10 just went through and he did the cutting and
11 A. I don't remember. 11 pasting.
12 Q. I show you an E-mail from Dr. Bea to 12 Q. Do you know where your E-mail that he
13 you dated August 25, 2006 with a re: line of 13 cut and pasted from is?
14 when the levees broke. (Tendering.) I marked 14 A. I don't keep copies of my E-mails.
15 it Exhibit 32 for this deposition. 15 MR. BRUNO:
16 (Exhibit 32 was marked for 16 Your sent E-mails.
17 identification and is attached hereto.) 17 THE WITNESS:
18 A. Yes, sir, I remember his response 18 Yeah.
19 because I E-mailed him to let him know that I 19 A. I just sent it.
20 saw his appearance on When the Levees Broke, 20 MR. BRUNO:
21 with Spike Lee, and I was complementing him on 21 Not many people do.
22 his, um -- 22 EXAMINATION BY MR. TREEBY:
23 EXAMINATION BY MR. TREEBY: 23 Q. Okay. You -- this document that I've
24 Q. Okay. I'm going to ask you -- 24 attached as Exhibit 32 has some more pages
25 A. -- appearance. 25 after the two pages of E-mails.

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Page 346 Page 348
1 Were these attached to this E-mail 1 Q. Okay. This was given to us as your
2 from Dr. Bea? 2 exhibit after your response to our subpoena.
3 A. Yes. That is why I submitted it as 3 Were the attachments to this, to the two pages
4 all Exhibit D. I'm showing you that this is 4 of E-mail, attachments to that, were they the
5 the E-mail I got back from him, and these are 5 attachments to this E-mail?
6 the documents that were attachments to that 6 A. Yes, sir. In fact, if we look at
7 E-mail. That's how I'm remembering it now. 7 Exhibit F, Attachment 8, that's what's written
8 Q. Did your son ever go to the University 8 down there, 8. Um -- third page is titled what
9 of California Berkley? 9 do we do? Bob Bea's answers to questions. If
10 A. No, sir, he hasn't. I wish he would. 10 you look at the E-mail, what do we do, I mean
11 I was telling him to take that. Son, everybody 11 that's the attachment that I opened up.
12 don't get that opportunity, why don't you do 12 Can you see that?
13 it. 13 Q. I'll take your word for it.
14 Q. So Dr. Bea invited him there? 14 A. Yeah. See, what do we do is the title
15 A. Yes, sir. He don't want to get too 15 of this one.
16 far away from dad. 16 Q. Okay.
17 Q. I show you a document we've marked 17 A. What do we do is title of that
18 Exhibit 33 which for this deposition, which is 18 attachment.
19 an E-mail dated October 15, actually. It's got 19 Q. Okay. I show you a document we've
20 I think two E-mails in it. One of them is 20 marked Exhibit 34 which is Exhibit G to your
21 October 14 and one of them is October 15. 21 response to your subpoena. It's an E-mail
22 (Exhibit 33 was marked for 22 dated December 13, 2006, from Robert Bea to
23 identification and is attached hereto.) 23 somebody named James Delery.
24 A. Yes, sir. And the -- 24 (Exhibit 34 was marked for
25 EXAMINATION BY MR. TREEBY: 25 identification and is attached hereto.)
Page 347 Page 349
1 Q. From Dr. Bea to J.W. Templeton on 1 A. Yes, sir.
2 which you were copied. 2 EXAMINATION BY MR. TREEBY:
3 A. Yes, sir. 3 Q. Coping David Rosenberg and Melvin M.L.
4 Q. Do you know who Mr. Templeton is? 4 McElwee, Sr.
5 A. Other than the explanation in the 5 A. That's me.
6 E-mail, no, sir. 6 Q. I just -- this David Rosenberg now
7 Q. Did he ever contact you? 7 comes -- Who is he, by the way?
8 A. No, sir. 8 A. David Rosenberg is a colleague or
9 Q. Do you know why Dr. Bea referred 9 somebody that works for Dr. Bea, that Dr. Bea
10 Mr. Templeton to you? 10 introduced me to at the, um -- the, um -- the
11 A. Other than drawing a conclusion from 11 meeting my family went to.
12 the E-mail, I don't know. My conclusion was 12 Q. Uh-huh. Do you know what his
13 that I think he had some conversations with 13 profession is, if any?
14 this guy, the guy wanted to talk with Dr. Bea 14 A. I'm told he's a professional engineer
15 relative to the levee failures, and Dr. Bea 15 from California.
16 said, I think this is a great source, go to 16 Q. Okay. Who told you that?
17 Mr. McElwee. 17 A. He told me that.
18 Q. Okay. 18 Q. He's the one that has these documents
19 A. And I think it had something to do 19 that you told me I can get from IKON?
20 with -- I'm sorry. 20 A. Yes, sir.
21 Q. Go ahead. 21 Q. This E-mail is introducing Mr. Delery
22 A. I think it had something to do with 22 to you and encouraging you and Mr. Delery to
23 small businesses doing work for the government 23 have communications with each other.
24 in this area relative to Katrina. Something 24 Did you ever communicate with
25 like that. That's what I'm thinking. 25 Mr. Delery?

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1 A. No, sir. 1 end, but not admitting the problems on the
2 Q. If you know, is the town hall meeting 2 job --
3 referenced in this E-mail the one described in 3 Q. Okay.
4 the earlier E-mail, the one at Lakeview? 4 A. -- and then all of a sudden the
5 A. No. I think this is a separate town 5 bonding company had to come in, and they
6 hall meeting that Dr. Bea mentioned to me on 6 refused to pay for modifications, I think there
7 that night that was going to come up, and he 7 were nine modifications we brought to the
8 want me to, um -- be involved in, but I never 8 Corps' attention they ignored, and we went to
9 heard from him, or I don't know if it ever took 9 the Armed Services Board of Contract Appeals to
10 place or not. I'm not -- 10 get answers and the Corps danced around it. I
11 Q. You didn't go to it if it did? 11 mean, they're very good at dancing and getting
12 A. I didn't go to it if it did happen. 12 behind the scene and letting somebody else --
13 Q. Okay. In -- what materials, if you 13 Q. And I don't need to go back through
14 know, was Dr. Bea referring to when he said you 14 that, but what I was trying to find out is do
15 and your family had spent a lot of time 15 you know of anything else he was referring to
16 organizing background materials? 16 there besides what you've already described for
17 A. Um -- the conference -- remember the 17 us?
18 conference I told you I brought a trailer in 18 A. No. That's the only thing that he was
19 and went to a conference room at I think it was 19 presented with by McElwee Brothers.
20 Holiday Inn or one of the places, rented a 20 Q. Okay. I show you an E-mail marked
21 conference room, laid it all out? 21 which was Exhibit H to your subpoena response,
22 Q. Brought file cabinets? 22 and I've marked it as Exhibit 35. And it's an
23 A. Yes. 23 E-mail -- by the way, did you ever meet -- I
24 Q. So these are all documents relating to 24 may have asked this, I apologize if I did: Did
25 Dwyer Road project? 25 you meet with Mr. Delery?
Page 351 Page 353
1 A. That's correct. 1 (Exhibit 35 was marked for
2 Q. There's a reference in here, if you 2 identification and is attached hereto.)
3 know, to -- let's see if I can find it again. 3 A. No, sir. I don't know Mr. Delery.
4 Oh. In the third paragraph of this letter, 4 EXAMINATION BY MR. TREEBY:
5 speaking of you and your family's experience. 5 Q. You don't know who he is or what he
6 I believe that's what he's speaking about. He 6 does?
7 says in this statement also that they had 7 A. I don't know who he is or what he
8 used -- let's go back. It was clear that the 8 does.
9 Corps -- starting at the middle of that 9 Q. Okay. This next Exhibit 35 from
10 paragraph. It was clear that the Corps had 10 Robert Bea to somebody W. Weiser, and then it
11 misled his construction company and others. 11 has a lot of folks copied, including you, I
12 Their experience clearly indicated that the 12 believe -- yes, including you -- Re: meeting in
13 Corps had known about the soft soils, organic 13 Lakeview. This is December of '06. And then
14 layers and seepage problems far in advance of 14 on the next page there's a -- continues and
15 Katrina, also that they had used unprofessional 15 there's another E-mail December 14.
16 and reasonable methods to pressure the 16 A. If you're asking me about the details
17 contractors into desperate financial binds, 17 of this E-mail, I can just tell you it's
18 example: Bond forfeiture. Do you know what he 18 something he courtesy copied me. I printed it
19 was referring to there? 19 from my file. I can't tell you anything
20 A. Yes. He was referring to the 20 about --
21 conditions on the Dwyer Road project that we 21 Q. Do you know who Weiser -- W. Weiser
22 have talked about, me agreeing with the Corps, 22 is?
23 disagreeing with the Corps, the problems that 23 A. I have no clue.
24 occurred, the Corps saying we were behind 24 Q. Have you looked through -- you gave it
25 schedule from the beginning of the job to the 25 to me, and if you need to look through it to

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1 answer this question, that's fine. If you 1 in that E-mail, at that time frame.
2 don't, that's fine, too. 2 Q. Well, now I'm getting really confused,
3 Were any of the comments contained in 3 because there was also the November 28th report
4 here, because this is one of those edited 4 by your son in which he alludes to -- and he
5 E-mails, were any of these comments yours? 5 alludes to a request made for materials that
6 A. No, sir. 6 had been provided to Dr. Bea. That's back in
7 Q. Okay. I show you another E-mail. 7 November of '05. And I thought --
8 This was your Exhibit E to your subpoena 8 A. Who made the request?
9 response. I've marked it Exhibit 37 for this 9 Q. In the report that your son did --
10 deposition. This is dated December 22nd, 2006, 10 A. Yes, sir.
11 and this one is just from Bob Bea to you 11 Q. -- we read the part results. And
12 entitled, subject, the beat goes on. And this 12 there was an indication that Dr. Bea had
13 appears to reference another meeting at 13 requested and that he, being you, because I
14 Lakeview that you went to. 14 asked you who it was and it was you, had
15 A. I'm -- I'm going to tell you, so help 15 provided materials to Dr. Bea.
16 me God, I only went to one meeting at Lakeview. 16 You recall that?
17 Q. So you can't account for the date on 17 A. I'm going to answer you again.
18 this E-mail, then, I take it. 18 Q. Well, you either recall that or you
19 A. Um -- actually, if you can give me the 19 don't.
20 exact date of the Lakeview meeting, I can tell 20 A. The materials I provided --
21 you that's when I went to the Lakeview meeting. 21 Q. Uh-huh. Were at this meeting at the
22 I only went the one meeting, and it was 22 Holiday Inn.
23 recorded and televised. I'm in that meeting, I 23 A. -- were at the Holiday Inn -- yes.
24 make a comment in that meeting, but the exact 24 And he didn't walk away with any materials, he
25 date of when it took place I can't answer you 25 just looked at everything on the table. I
Page 355 Page 357
1 here. I only went to one meeting. 1 never provided him any documents.
2 Q. So when you refer -- early in the year 2 Q. I understand what you've saying. And
3 2006, you remember -- I can take you back to 3 you later said you haven't provided him any
4 it, but maybe you can do it from memory -- 4 documents until very recently.
5 there was an E-mail from him to you, January 5 A. That's right.
6 4th, that he was coming to town, would like to 6 Q. Okay. So I'm having trouble with
7 meet with you, and there was then a subsequent 7 this -- you met with him at Holiday Inn. Do
8 E-mail of January 14, ten days later saying it 8 you remember what year it was? Was it before
9 was great to meet with you and your family. 9 the report or not?
10 A. Okay. 10 A. It was before my son's -- let me look
11 Q. Okay? And you had earlier testified 11 at my calendar and answer the question when
12 that you believe, yes, that meeting was the 12 that date of that meeting happened. Can I do
13 meeting in Lakeview, and Garland Robinette was 13 something like that?
14 there and whoever else you've testified about. 14 Q. Sure. I would like to got I right.
15 A. Yes, sir, I said I believe that to be 15 MR. BRUNO:
16 that meeting. However -- 16 I don't know why it's remotely
17 Q. This is almost a year later. 17 relevant to anything we're doing, took
18 A. Okay. Let me mention this to you: 18 while we're at it.
19 Maybe I quoted -- it wasn't that meeting, but I 19 MR. TREEBY:
20 did tell you I met with him at a Holiday Inn 20 I don't think Dr. Bea is remotely
21 showing him all the documents. Now, during 21 relevant to anything, but you think he
22 that time frame my family wasn't there -- well, 22 is, so that's why this is important.
23 let me put is this way: My wife was there and 23 MR. BRUNO:
24 her aunt was there. But my children were not 24 Really. So it's important to
25 there. So maybe that's when he's referring to 25 know that Dr. Bea met with him at a

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Page 358 Page 360
1 certain time and at a certain place? 1 MR. BRUNO:
2 MR. TREEBY: 2 Because it says, thanks for
3 Uh-huh. Yes, it is. 3 talking time from your daughter's
4 MR. BRUNO: 4 birthday party.
5 And that relevant to his 5 When is your daughter's birthday?
6 opinions? 6 THE WITNESS:
7 MR. TREEBY: 7 December 12th.
8 Yes, it is. 8 MR. BRUNO:
9 MR. BRUNO: 9 So you have a reference.
10 Well, you need to read the 10 THE WITNESS:
11 reports. 11 December 12th. That's the date
12 MR. TREEBY: 12 that I met at the town hall meeting in
13 Very much so. 13 Lakeview.
14 EXAMINATION BY MR. TREEBY: 14 EXAMINATION BY MR. TREEBY:
15 Q. Okay. Now, this would indicate that 15 Q. How many occasions have you met in
16 there was -- in fact, you will see attached 16 person with Dr. Bea?
17 coming home and something from Wagenaar letter, 17 A. Met in person with him?
18 is attached to your 22nd -- this December 22nd 18 Q. Yes.
19 E-mail you gave to me as exhibit E to your 19 A. Twice.
20 response to my subpoena. 20 Q. And I know you're having trouble with
21 You see that? 21 dates, and I'm not trying to nail you with
22 A. Yes. 22 dates but can you tell me anything about the
23 Q. Okay. If you'll look at the first 23 two meetings that would help us identify them,
24 attachment, it speaks of a town hall forum 24 what happened, who was there?
25 December 12, 2006, St. Dominic Church. 25 A. Okay, in Hammond, the conference room,
Page 359 Page 361
1 A. Yes, sir. 1 myself, my wife --
2 Q. Are you testifying this is the only 2 Q. Who booked the conference room?
3 meeting in Lakeview -- in Lakeview. I'm not 3 A. McElwee Brothers did.
4 saying at that church, but in Lakeview -- that 4 Q. Okay.
5 you attended? 5 A. Um --
6 A. Yes, sir. 6 Q. You should be able to find out when
7 Q. Okay. So if there was a meeting in 7 that was, then.
8 January of '06, eleven months earlier, that was 8 A. Yes, sir.
9 where? 9 Q. Would you do that?
10 A. That was the meeting I keep saying at 10 A. Yes, sir.
11 the Holiday Inn conference room in Hammond. 11 Q. Okay. And what was the other
12 Q. Okay. 12 occasion? Was it at the Lakeview?
13 A. That's -- 13 A. The Lakeview.
14 Q. And then so if there was a meeting 14 Q. At St. Dominic's church?
15 prior to November 28th, 2005 when the report 15 A. At St. Dominic 's church on
16 was written, at which you showed Dr. Bea 16 December 12th.
17 materials, where was that? 17 Q. To your knowledge, did you meet or
18 A. That was the meeting I'm telling you 18 speak with any of the team members, other than
19 about, whatever day it was. 19 Dr. Bea, responsible for what Dr. Bea has
20 Q. Those dates don't work. 20 called the Independent Levee Investigation Team
21 MR. BRUNO: 21 investigation and report?
22 How about his daughter 's 22 A. When you say team members, I'm just
23 birthday, why don't you ask him that? 23 going to mention to you Dave Rosenberg and
24 MR. TREEBY: 24 Dr. Bea. Now, I don't know if Dave Rosenberg
25 Let's proceed. 25 was part of that team or whatever, but that's

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Page 362 Page 364
1 the only two people I've talked to. 1 WITNESS' CERTIFICATE
2 Q. Okay. Have you met with Mr. Rosenberg 2
3 other than when he was with Dr. Bea? 3 I, MELVIN M.L. MCELWEE, SR., do
4 A. Yes. 4 hereby certify that the foregoing testimony was
5 Q. On how many occasions? 5 given by me, and that the transcription of said
6 A. Oh, I can't -- 6 testimony, with corrections and/or changes, if
7 Q. Many? 7 any, is true and correct as given by me on the
8 A. I'm sorry. It was quite a few 8 aforementioned date.
9 occasions, yeah. We met on quite a few 9
10 occasions. I'd have to get my calendar to tell 10 ______________ _________________________
11 you what the dates were. 11 DATE SIGNED MELVIN M.L. MCELWEE, SR.
12 Q. When did you first meet -- when -- if 12
13 you recall, approximately when did you first 13 _______ Signed with corrections as noted.
14 meet with Mr. Rosenberg? 14
15 A. Meet with him after I met him? I met 15 _______ Signed with no corrections noted.
16 him at the town hall meeting. 16
17 Q. So that would be December 12, 2006, 17
18 you believe. 18
19 A. Yes, sir. 19
20 Q. And that was the first time you had 20
21 met him. 21
22 A. That's the first time I met him. 22
23 Q. So he wasn't with Dr. Bea at Hammond? 23
24 A. No, sir. Dr. Bea was alone that time. 24
25 Q. Okay. 25 DATE TAKEN: April 23rd, 2008
Page 363 Page 365
1 MR. TREEBY: 1 REPORTER'S CERTIFICATE
2 I think this is a good place to 2 I, JOSEPH A. FAIRBANKS, JR., CCR, RPR,
3 break. I'm not going to be too much 3 Certified Court Reporter in and for the State
4 longer, but I'm really not -- I'm 4 of Louisiana, do hereby certify that the
5 almost finished, but this will take a 5 aforementioned witness, after having been first
6 little while to develop this. 6 duly sworn by me to testify to the truth, did
7 (Recessed for the day.) 7 testify as hereinabove set forth;
8 8 That said deposition was taken by me
9 9 in computer shorthand and thereafter
10 10 transcribed under my supervision, and is a true
11 11 and correct transcription to the best of my
12 12 ability and understanding.
13 13 I further certify that I am not of
14 14 counsel, nor related to counsel or the parties
15 15 hereto, and am in no way interested in the
16 16 result of said cause.
17 17
18 18
19 19
20 20
21 21
22 22
23 23 ____________________________________
24 24 JOSEPH A. FAIRBANKS, JR., CCR, RPR
25 25 CERTIFIED COURT REPORTER #75005

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JOHNS PENDLETON COURT REPORTERS 800 562-1285

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