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Case: 1:02-cv-00107-MRB-KLL Doc #: 1585 Filed: 01/30/19 Page: 1 of 20 PAGEID #: 36074



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UNITED STATES OF AMERICA, . Case No. 1:02-cv-107

et al., .
. Evidentiary Hearing re
Plaintiffs, . Request for Review of
. Joseph T. McCauley, Doc. 1228
- v - .
. Thursday, January 10, 2019
BOARD OF HAMILTON COUNTY . Excerpts from 10:01, 11:02
COMMISSIONERS, et al., . and 11:20 AM
Defendants. . Cincinnati, Ohio
. . . . . . . . . . . . . . . .




The Finney Law Firm, LLC
4270 Ivy Pointe Boulevard, Suite 225
Cincinnati, Ohio 45245

For the Defendant City of Cincinnati:


Senior Assistant Solicitor Taft, Stettinius & Hollister LLP
City of Cincinnati - MSD 425 Walnut Street
1600 Gest Street Suite 1800
Cincinnati, Ohio 45204 Cincinnati, Ohio 45202-3957

Also present: Charles Wood Anness, Esq., Hamilton County

Prosecutor's Office
Thomas L. Fronk, MSD
Kevin Lewis, IT
Amanda R. Toole, Esq., Legal Aid Society
of Southwest Ohio, LLC

Law Clerk: Laura Ahern, Esq.

Courtroom Deputy: Arthur W. Hill

Court Reporter: Luke T. Lavin, RDR, CRR

Proceedings recorded by stenotype; transcript

produced by computer-aided transcription.
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1 P R O C E E D I N G S

2 (In open court at 10:01 AM.)

3 THE COURT: Good morning, everyone.

4 MEMBERS OF THE AUDIENCE: Good morning, Your Honor.

5 THE COURT: We've got a full house today.

6 MR. FINNEY: There's more in the hallway.

7 THE COURT: All right. As we start, I would like

8 counsel to please enter their appearance for the record.

9 MR. FINNEY: Christopher Finney, attorney for the

10 plaintiff Mr. McCauley.

11 MS. GUGINO: Julie Gugino, attorney for the plaintiff.

12 THE COURT: Okay.

13 MR. SULLIVAN: Tim Sullivan, counsel for the

14 Metropolitan Sewer District.

15 MS. DeGORICIA: Lauren DeGoricia representing the City

16 of Cincinnati and the Metropolitan Sewer District.

17 THE COURT: Okay. And then do we have the MSD

18 ombudsman here?

19 MS. TOOLE: Yes. Amanda Toole here from Legal Aid,

20 the ombudsman.

21 THE COURT: Okay.

22 MS. DeGORICIA: And, Your Honor, I did also invite

23 Charles Anness from the County prosecutor's office.

24 THE COURT: We met earlier. Thank you.

25 MR. ANNESS: Hi, Your Honor.

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1 THE COURT: Okay. So I guess the first thing I'd like

2 to do today is talk about the issue of the scope of review

3 of -- in these cases. That was an issue that was raised by MSD

4 in connection with one of our previous telephone conferences.

5 I invited the ombudsman here to also weigh in on the scope of

6 review and the evidence that would be presented in these cases.

7 So I guess, MSD, since you brought that up, let me hear

8 from you first.

9 MR. SULLIVAN: Thank you, Your Honor.

10 MSD believes that this is a review process only and not a

11 trial de novo, and, for example, it doesn't agree that Mr.

12 McCauley can describe himself as the plaintiff, because he has

13 not filed any lawsuit against anyone. Rather, he made a claim

14 for reimbursement under a program established by the consent

15 decree.

16 As you can see from the number of assembled witnesses here,

17 the intention, apparently, is to in fact engage in a full-scale

18 trial, offering testimony live from witnesses that was not part

19 of the original claims process, offering the introduction of

20 documentary evidence that was not included with the original

21 claim form and, consequently, was never reviewed by the office

22 of the City Solicitor and could not, therefore, have been a

23 part of its decision.

24 Because this is only a review process, the Sewer District

25 believes that the only materials properly to be considered by

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1 the Court are those that were presented with the claim form,

2 those that were offered in support of the request for review

3 and filed with the Clerk of the court and a matter now of

4 public record, and the documents attached to and filed with

5 MSD's response to the request for review.

6 Also in that connection we wish to note that attempts were

7 made to serve putative subpoenas on some witnesses from the

8 Sewer District. And that raises a number of issues itself,

9 some overlapping what I've just mentioned.

10 Mr. McCauley is not a party in litigation and,

11 consequently, under Rule 45 neither he nor his lawyer can issue

12 subpoenas or require the Clerk to issue subpoenas in their

13 behalf.

14 The witnesses who were subpoenaed weren't properly served,

15 because the subpoenas were merely left at their place of

16 employment. Some of those witnesses, several of the witnesses,

17 were not even there or, in the case of one witness, is not even

18 in the country right now. And as near as we can determine,

19 only one of those subpoenaed witnesses potentially has any

20 knowledge of anything related to this matter. But again, that

21 would be an attempt to offer new oral testimony that was never

22 considered as part of the claims process. And because the

23 Court's role here is limited to a review and a determination

24 whether the City Solicitor's decision was based on the facts

25 before it at the time and the law that applies to those facts,
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1 any new evidence could not properly be considered. In fact,

2 that would be a complete end run around the entire process.

3 We believe also that if that occurs, it raises substantial

4 issues about the subject matter jurisdiction the Court has in

5 this matter. For example, Mr. McCauley and the Sewer District

6 are both residents of the state of Ohio, so there is no

7 diversity in the case. There's nothing that presents any

8 federal question in the dispute between those two parties.

9 So if this proceeding were to somehow become a trial de

10 novo between those parties, it is the Sewer District's position

11 and the City's position that the Court does not have subject

12 matter jurisdiction and could not entertain that.

13 And that, in a nutshell, is our position on the scope of

14 the hearing.

15 THE COURT: Have a seat, Mr. Finney. I want to ask

16 Mr. Sullivan some questions.

17 Ms. DeGoricia, if you want to weigh in on this, that's fine

18 too.

19 So most of these cases are appealed pro se by folks, and

20 initially when Judge Spiegel implemented the review process by

21 the magistrate judge, Judge Spiegel really tasked Judge Hogan

22 and the ombudsman and MSD to come up with a process that was

23 user friendly for the typical pro se person.

24 The request for review form invites people to describe the

25 relief they're seeking and any evidence that you have to

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1 support your claim. Please attach your original claim and

2 other documents, receipts, photos, videos, et cetera, that you

3 would like the Court to review. That implies some information

4 or evidence that is not necessarily before MSD at the time it

5 makes its initial decision.

6 Secondly, Judge Spiegel's order giving the magistrate judge

7 the authority to review decisions made by MSD indicates that

8 the magistrate judge will review such requests and may hold an

9 evidentiary hearing in order to determine whether the City's

10 decision is supported by the law and evidence and suggesting

11 that the process include some type of evidentiary presentation

12 during the appeals process.

13 As a practical matter, here's the concern I have with MSD's

14 approach, at least as it concerns this case. Oftentimes -- and

15 again, this is based on my experience in your typical pro se

16 claimant -- they experience what they believe is a sewer

17 backup. They call MSD. MSD comes. They do an investigation.

18 They may clean up the property. They hand the claimant the

19 packet for filing a claim and review. They may say, "Hire a

20 plumber. Don't hire a plumber." The person is, I think,

21 understandably led to believe that this is a sewer backup and

22 they may be compensated for any property loss, only to find

23 they get a decision, a letter from MSD saying, "We've

24 investigated your claim, and we find that it's not our fault.

25 There's not causation." And in my view, that's an appropriate

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1 matter for the claimant then to contest, and they can't contest

2 that until MSD has made that decision.

3 So claimants don't come into the process thinking "I have

4 to get an expert, a causation expert, to participate in this

5 process." So that's -- I mean, that's the -- I guess the

6 question that I'm struggling with in connection with your

7 argument.

8 MR. SULLIVAN: If I may.

9 THE COURT: Go ahead.

10 MR. SULLIVAN: We agree that in those cases and, in

11 fact, in this case that the claimant is always free to present

12 in this review process the kind of evidence that they had

13 available and either mentioned in the claim form or, through

14 oversight or lack of experience or knowledge or training,

15 omitted from the claim form and that, when that happens,

16 essentially the parties then, by agreement, end up before this

17 Court as part of the review, understanding that that -- some

18 things may be heard for the first time during that proceeding.

19 That, however -- and we do appreciate that Judge Spiegel

20 made the decision he did, but we do believe that neither he nor

21 any other -- no one in the country can create subject matter

22 jurisdiction. So his order must be interpreted, we believe, in

23 light of the limits on the Court's subject matter jurisdiction.

24 And when that happens, then we believe the conclusion is

25 clear that, yes, this Court's review process will allow the
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1 claimant to put before the Court everything that was in the

2 claim form, everything that potentially they could have

3 included in the claim form for a pro se person unacquainted

4 with the process, but the process stops there.

5 That's not what we're talking about here today. Here today

6 we have, if it unfolds as contemplated by Mr. McCauley and his

7 attorneys, a trial of plaintiff McCauley versus defendant

8 Metropolitan Sewer District, which will raise all kind of

9 issues well beyond the scope of either the review process or

10 Judge Spiegel's order. And it's that attempt to convert this

11 review process into a regular lawsuit that, if it were filed,

12 could never be filed in federal court, that causes us that

13 concern.

14 MR. FINNEY: Your Honor, I think I can simplify these

15 issues if I could be heard.

16 THE COURT: Well, hang on. I just have another

17 question.

18 But that really doesn't address the causation issue that --

19 MR. SULLIVAN: And --

20 THE COURT: Because a lot of times people don't know

21 until MSD makes a decision. I mean, there's an initial the

22 crew goes out. They, you know, do their preliminary findings.

23 They do their best job in trying to determine what the cause of

24 the backup is. There's a decision made.

25 If that's appealed, then Mr. Fronk goes out and he does an

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1 additional investigation and figures out -- he might get

2 information on elevations, topography of the area, try to

3 figure out is this overland flooding, is it really a backup in

4 someone's lateral line. So it seems like people should be able

5 to -- claimants should be able to rebut that information as

6 part of this process.

7 MR. SULLIVAN: I omitted that only because really I

8 don't even see it as an issue in this or, really, any other

9 case for this reason. Either sewer comes up -- either water

10 comes up from a drain in the basement of a home and floods all

11 or part of the basement, or water flows from outside the house

12 through some openings, doors or something like that, and gets

13 inside the house. And, yes, we understand that the claimant

14 initially believes that must be from the sewer system, at least

15 in whole or in part, and that MSD may later say, no, we don't

16 believe that did come from the sewer system.

17 At that point, yes, there is an issue about causation, but

18 although it seems difficult or perhaps heavy-handed to impose

19 on the claimant the burden initially to show that it was sewer

20 water, that is their responsibility. And that's why we believe

21 the pro se case is different, because when that happens, you're

22 right, they're not understanding of their burden of proof or

23 what kind of things they need to pull together before they come

24 to court.

25 When they get here, they understand, okay, tell us more

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1 about why you believe that this was water that emanated from

2 the sewer system that got into your house. This is just a

3 wholly different case.

4 So we're not necessarily asking the Court to make any sort

5 of ruling, blanket ruling, that would apply to every future

6 request for review, just highlighting for the Court that in

7 this particular case it's much different.

8 THE COURT: Okay. Thank you.

9 All right. Mr. Finney?

10 MR. FINNEY: Thank you, Your Honor.

11 First of all, I know this is unusual, but I'd like to

12 approach, because the City -- or MSD already stipulated all

13 these issues away. And so we went to an enormous amount of

14 trouble to prepare for this hearing because the City wouldn't

15 tell us what the issue was. I mean, if you read their 15-page

16 brief, which was painful for me to do over and over, they

17 raised some 15 different issues of why we're not entitled to

18 reimbursement.

19 But on the causation issue, Your Honor, I'd ask you in that

20 binder that I --

21 I'm sorry. I'm going to hand you a binder. May I

22 approach?

23 THE COURT: Yes, you may.

24 MR. FINNEY: If you turn to the Tom Fronk deposition,

25 Kevin, and go to page 23.

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1 Now, you may remember, Your Honor, that we took an initial

2 deposition of Erin Johnson which the City terminated and

3 refused to let me ask her questions. And then you ordered the

4 City to make Ms. Johnson available and Mr. Fronk available.

5 THE COURT: Okay.

6 MR. FINNEY: And my head was spinning, which it still

7 is, as of yesterday as to what we're even going to be talking

8 about today, because everything is obvious.

9 And let me just say on the issue of the complaint, Your

10 Honor and opposing counsel have made this into a binary issue,

11 what was or wasn't in the complaint form. But it's really not

12 a binary issue, because the other question is what was known to

13 MSD in its own files, which was volumes and volumes of

14 information that this is, in fact, a hugely troubled area and

15 it's all sanitary sewer. It's all what they call -- I'm losing

16 the word, but effluent from the sanitary sewer system that

17 comes up, a backup issue.

18 So we went through these three painful depositions to say:

19 What is it? What? What are we talking about? And on page 23

20 of the exhibit, finally at line 16 Mr. Sullivan said: We're

21 going to stipulate all of these things away. We're going to

22 agree at the hearing that there was sewer backup in his house

23 on March 1st, 2017 --

24 And by the way, they agree later that it was on multiple

25 occasions.
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1 -- caused by a lack of capacity in the system.

2 Now, Your Honor, this is my first proceeding in front of

3 you. I've done everything humanly possible, with the aid of an

4 enormously talented associate who has researched and read and

5 tried to figure out what is it today that's left to talk about,

6 the value of the house, you know, I don't know. But on the

7 causation issue Mr. Sullivan's words: So we are going to agree

8 here today --

9 He's a man of his word, I assume.

10 -- that there was sewer backup in his house on March the

11 1st, 2017, caused by a lack of capacity in the system. So if

12 that is true -- maybe it's not true. But if that's true, I

13 don't know what -- maybe you can tell me what we're left to

14 talk about today, because I don't know on the causation issue.

15 Am I wrong about that?

16 THE COURT: Is he wrong about that, Mr. Sullivan?


18 THE COURT: Okay.

19 MR. SULLIVAN: No, and that's one of the reasons why

20 we don't need 15 witnesses.

21 MR. FINNEY: Except, Your Honor, we then present to

22 him written stipulations to make it easy for you today, and the

23 City said, "Well, we'll say it was -- potentially possibly

24 included sewer," which is different than the stipulation and

25 different than all of the testimony that I elicited and

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1 different than all of the records of MSD prior to our claim,

2 which is voluminous. That's why there's all these people in

3 the hall and all these people here to testify, because Erin

4 Johnson from MSD will tell you, yes, we knew all about this

5 property long before Mr. McCauley ever filed a claim. It's a

6 troubled property with a history of sewer problems that are

7 related to sanitary sewer.

8 And, Your Honor, I have video if you want to see, but

9 this --

10 THE COURT: Hang on. Right now I'd like to focus on

11 the process. And what I'm hearing is that perhaps we don't

12 really -- we don't really need to -- I appreciate Mr.

13 Sullivan's distinction between the typical pro se person and

14 what they may or may not know about the process versus a

15 represented client who has a very capable attorney who is

16 trying to get to the bottom of things. And if that's the case,

17 then we may be able to dispense with the 15 people who are out

18 there. I don't know yet at this time.

19 But, Mr. Finney, given your -- given this is your first

20 time here, I'm going to invite you to sit down, and I'd like to

21 hear from Ms. O'Toole just to get the ombudsman's --

22 MS. TOOLE: You want me to stand here or, Your

23 Honor --

24 THE COURT: Why don't you come to the front, please.

25 MS. TOOLE: It's Ms. Toole.

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1 THE COURT: Ms. Toole.

2 MS. TOOLE: I like the "O," usually, in front of my

3 name.

4 THE COURT: Oh. Thank you.

5 MS. TOOLE: A lot of judges always do that, but I -- I

6 think it was dropped a while ago.

7 THE COURT: Okay.

8 MS. TOOLE: I'm sorry I haven't prepared something in

9 this case, but what it sounds like is that the City now wants

10 to limit what, you know, a homeowner or a tenant can bring at

11 these hearings and not go forth with the evidentiary hearing.

12 However, I don't think that's what Judge Spiegel had in mind

13 when he allowed this to happen. He wanted the evidentiary

14 hearing.

15 I think there are a lot of things that need to be assessed.

16 With this hearing I did take a look at the docket. I'm not

17 very familiar with everything in this case, but I believe that

18 what I hear from the City is they want to have all their

19 evidence and bring all of their witnesses and do additional

20 investigation but not allow a tenant or homeowner to do the

21 same thing, and I don't think that's what Judge Spiegel

22 envisioned. I think that a homeowner and tenant can also, you

23 know, bring the evidence and do the investigation and bring

24 what they need forth in order to come in front of you for the

25 right to review.
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1 I have not researched, I will confess, the subject matter

2 jurisdiction, but I believe this was envisioned under the

3 consent decree as part of the case. And MSD, obviously, has

4 been forth in front of you for several hearings, and they've

5 never contested the subject matter jurisdiction, you know, of

6 this Court prior to this.

7 It just sounds to me like, yes, this is a lengthy hearing

8 and this could be a lengthy process just with this homeowner,

9 but that's not the case with everyone, and I see nothing in the

10 consent decree or in Judge Spiegel's previous orders or any

11 orders from this Court that there can't be an evidentiary

12 hearing. In fact, there should be one. And they have the

13 right to conduct investigation, bring the witnesses forth that

14 they want as well, because Your Honor has to make an informed

15 decision of what occurred.

16 So if MSD is allowed to go and investigate a sewer backup

17 after a homeowner or tenant disagrees with the decision made by

18 MSD and provide more evidence and provide their witnesses and

19 conduct further investigation, I see no reason why a homeowner

20 or tenant could not do the same thing.

21 THE COURT: Thank you.

22 MS. TOOLE: Okay.

23 Oh, do you have any questions, Your Honor, or is that

24 enough?

25 THE COURT: That's -- thank you. I appreciate that.

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1 MS. TOOLE: Uh-huh.

2 THE COURT: I think that's what Judge Spiegel would

3 call goosey gander, for those of us who are old enough to have

4 practiced before Judge Spiegel.

5 Okay. So at this point I'd like to turn to this specific

6 case. I see we have three backups: we've got the August 26,

7 2016, the March 1st, 2017, and the April 16th, 2017. And when

8 I say March 1st, I understand that there was a February 28th

9 and then it went into the March 1st, but I think we're all just

10 calling it March 1st.

11 And what I understand is that MSD is contesting the April

12 16th, 2017, backup based on the alleged failure of the

13 homeowner to report the backup within 24 hours. Is that

14 accurate?

15 MR. SULLIVAN: That's one of the grounds for -- that

16 is one of the responses to the claim that it's responsible for

17 that event, yes.

18 THE COURT: Okay.

19 MR. SULLIVAN: The other is that, as described in the

20 response, they -- MSD did go out to a neighbor's home, did an

21 investigation and confirmed there had been neither overland

22 flooding or any surcharge from the sewer system.

23 THE COURT: Okay. So we're focused on three dates;

24 correct?

25 MR. FINNEY: Correct, Your Honor.

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1 MR. SULLIVAN: Yes, we agree.

2 THE COURT: Okay. So let's get to what the issues

3 are, then. If there -- I mean, it appears that if there's a

4 stipu--

5 Tell me, Mr. Sullivan, does MSD stipulate to the August

6 28th, 2016, and March 1st, 2017, causation in terms of sewer

7 backup into this property?

8 MR. SULLIVAN: Yes, and that's why an offer was made

9 in both instances.

10 THE COURT: Okay. And that's how I read MSD's

11 submissions.

12 So it appears the question, then, is down to damages;

13 correct?

14 MR. SULLIVAN: It is.

15 THE COURT: Mr. Finney?

16 MR. FINNEY: That is correct, Your Honor.

17 * * *

18 (In open court at 11:02 AM.)


20 a witness herein, having been first sworn, testified as follows:



23 Q. Mr. Allen, I'll give you what's been marked as Plaintiff's

24 Exhibit 2.

25 MR. FINNEY: And I have a copy for the Court as well.

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1 THE COURT: Thank you.

2 Q. Mr. Allen, you've been retained. First of all, please

3 state your full name and address for the record.

4 A. Joseph M. Allen, 4571 Whispering Oak Trail.

5 Q. And that's in Hamilton County?

6 A. Hamilton County, Ohio.

7 Q. And what do you do for a living?

8 A. I'm a professional engineer, civil engineer, and land

9 surveyor.

10 Q. And how many years have been licensed as a professional

11 engineer in Ohio?

12 A. 30 years.

13 Q. Okay. And what is your concentration?

14 A. Civil engineering tasks, sanitary analysis, stormwater,

15 land developing, grading, subdivisions, individual single-

16 family construction.

17 * * *

18 (In open court at 11:20 AM.)



21 Q. It sounds like you agree that this flooding has occurred

22 for many years before Mr. McCauley bought the property?

23 MR. FINNEY: Objection, Your Honor. Irrelevant.

24 A. I -- I don't know.

25 THE COURT: Overruled. Go ahead.

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2 THE COURT: Go ahead. You can answer the question if

3 you know.

4 A. I don't know.

5 Q. Excuse me. I didn't hear your answer.

6 A. I don't know whether it's -- the flooding history of it. I

7 know of what I was told those particular dates. If you asked

8 my opinion, I suspect it probably was flooding before too.

9 Q. Well, you would agree, would you not, that the documents

10 you read from say exactly that, it's been occurring for many

11 years?

12 A. Yes, you're correct.

13 Q. And if we had no rain, if climate change really turns out

14 to be as dire as some people tell us, you would agree this

15 property would have no problem in the future?

16 A. If there was no rain?

17 Q. Right, or not enough rain to cause any surcharge from any

18 part of the Sewer District system.

19 A. Yeah, I would think the property would be -- certainly you

20 could take another look at living there and going there if you

21 have no risk of backups, any kind of backup.

22 Q. And you described your background, which was civil

23 engineer, if I heard correctly.

24 A. That's correct.

25 Q. Is that different than somebody who might be a structural

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1 engineer?

2 A. Yes.

3 (End of requested excerpts.)

4 * * *

5 - - -

6 C E R T I F I C A T E

7 I, Luke T. Lavin, RDR, CRR, the undersigned, certify

8 that the foregoing is a correct transcript from the record of

9 proceedings in the above-entitled matter.


11 s/Luke T. Lavin
Luke T. Lavin
12 Official Court Reporter

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