0827jharris.

txt
0001
1 DISTRICT COURT, CITY AND COUNTY OF DENVER COUNTY
2 STATE OF COLORADO
3 Case No: 2012CV3718, Division: 424
_______________________________________________________
4
DEPOSITION OF: JAMES ROBERT HARRIS, P.E. -
5 AUGUST 27, 2014
_______________________________________________________
6
PALACE LOFTS CONDOMINIUM ASSOCIATION,
7
Plaintiff,
8
v.
9
MCDONALD WATERPROOFING, INC., et al.,
10
Defendants.
11 _______________________________________________________
12
13 PURSUANT TO NOTICE AND AGREEMENT, the
14 deposition of JAMES ROBERT HARRIS, P.E., was taken on
15 behalf of the Defendant at 1775 Sherman Street, Suite
16 2000, Denver, Colorado 80203, on August 27, 2014, at
17 9:08 a.m., before Suzanne Reid, Registered Professional
18 Reporter and Notary Public within Colorado.
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0002
1 A P P E A R A N C E S
2
3 For the Plaintiff: WENDY E. WEIGLER, ESQ.
Lansky, Weigler & Porter, P.C.
4 1401 17th Street
Suite 560
5 Denver, Colorado 80202
303-382-4153
6
7 For the Defendant: WILLIAM K. ROUNSBORG, ESQ.
McElroy, Deutsch, Mulvaney &
8 Carpenter, LLP
5600 South Quebec Street
9 Suite 100C
Greenwood Village, Colorado
10 80155 303-293-8800
11
Also Present: ROBERT TRIPP HALL, ESQ.
12 Treece Alfrey Musat, P.C.
13
JAMES WYSE, Palace Lofts
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0003
1 I N D E X
2 EXAMINATION OF JAMES ROBERT HARRIS, P.E.: PAGE
August 27, 2014
3
4 BY MR. ROUNSBORG 8
5 BY MS. WEIGLER 121
6
INITIAL
7 DEPOSITION EXHIBITS: REFERENCE
8
Exhibit 1 Hand-drawn diagram (Blake Street) 61
9 illustrating post-tensioned slab and
water intrusion theory
10
Exhibit 2 Hand-drawn diagram of cross-section of 61
11 two-stage drain through slab
12 Exhibit 3 8/6/14 Rebuttal to Expert Report by 98
Realarchitecture, Ltd
13
Exhibit 4 Plaintiff's C.R.C.P. 26(a)(2) 100
14 Disclosures
15 Exhibit 5 8/21/12 Email from Jim Harris to James 102
Wyse, bamore@stcharlestown.com, Ken
16 Cobb, Subject: Palace Lofts - 3M Deck
issues
17
Exhibit 6 Hand-drawn diagram illustrating 116
18 liquid-applied membrane application
19 (Indexed and bound separately in cumulative
exhibit notebook.)
20
21 PREVIOUSLY MARKED DEPOSITION EXHIBITS: PAGE
22
Exhibit
23
(None)
24
25
0004
1 QUESTIONS DEPONENT INSTRUCTED NOT TO ANSWER
2 Page Line
3 (None)
4 INFORMATION TO BE PROVIDED
5 Page Line
6 (None)
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0005
1 P R O C E E D I N G S
2 WHEREUPON, the following proceedings were
3 taken pursuant to the Colorado Rules of Civil
4 Procedure.
5 MR. ROUNSBORG: Before we get started,
6 counsel for Palace Lofts wants to, I guess, have a
7 discussion with me about our opportunities and alleged
8 prejudices and the manner in which this case has been
9 handled and how none of that should matter, I suppose,
10 or at least that's the way I'm hearing it.
11 So why don't you go ahead and, for the
12 record, say what you want to say.
13 MS. WEIGLER: All I want to say for the
14 record is that we're about to take the depositions of
15 Palace Lofts' expert witnesses and there are motions
16 pending before the Court that affect the scope of the
17 expert witnesses' testimony.
18 I wanted the record to be clear that there is
19 also a pending motion asking the Court to stay this
20 action and to allow supplementation of the expert
21 disclosures. So if the Court -- depending on how the
22 Court rules on those issues, I believe affects the
23 scope of the depositions today.
24 So to the extent that the defendant is going
25 to later claim that they were prejudiced in not being
0006
1 able to conduct discovery as to those issues, I think
2 the record is clear that we -- they have the option of
3 putting these depositions on hold and staying the
4 action, as they had asked the Court for about four
5 months of this case, and agree that the case needs to
6 be stayed and the trial needs to be continued so that
7 we know what all the issues are.
8 MR. ROUNSBORG: I'm going to proceed with
9 this deposition on the basis of the orders that have
10 already been entered in this case, reserving my right,
11 if the Court does a 180-degree turn and forgives
12 plaintiff its handling of this matter, we can talk
13 about those issues if and when the Court enters a
14 contrary ruling.
15 But for the record, I am not going to miss my
16 opportunity, this close to trial, to take this
17 deposition on the basis of the record that has already
18 been established and the rulings that have already been
19 made and the disclosures that were timely and the
20 issues that were properly identified.
21 To the extent that the Court says, You know
22 what? On the 11th of August, I was absolutely wrong,
23 and you can try and create or identify or raise new
24 issues, I think -- you sat before the Court. You know
25 how Judge Laff felt about this. I think that it would
0007
1 be appropriate at that time for me to then say, "Judge,
2 if we're going to restart, as you've said we were not,
3 but if you've changed your mind, then I'm going to want
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4 to reopen these depositions."
5 And I think that that addresses your concerns
6 about moving forward with these depositions today. If
7 you have a problem with me moving forward on the basis
8 of your motion and you want to save some money today,
9 feel free to call the Court and see if you can get a
10 ruling on a motion to -- no -- for protective order to
11 stop this deposition.
12 But it's got nothing to do with a prejudice.
13 It's got to do with the case as framed. And we'll be
14 going to trial if we don't resolve it as outlined,
15 quite clearly, by the Court on the 11th of August.
16 We've got the transcript. You're free to borrow it and
17 read it, share it with your client, see what the Court
18 said.
19 Until he changes his mind -- and he is going
20 to have to do a 180-degree turn -- Judge Laff's ruling
21 will govern how I conduct this deposition today and the
22 scope of the questions that I ask. I will ask a little
23 bit about new stuff, but that's more in the context of
24 how you handled the case and why we are dealing --
25 continuing to deal with the issue I think that the
0008
1 judge handled quite properly a couple weeks ago.
2 Fair enough?
3 MS. WEIGLER: Yes. Thanks.
4 MR. ROUNSBORG: All right.
5 JAMES ROBERT HARRIS, P.E.,
6 having been sworn to tell the truth, testified as
7 follows:
8 EXAMINATION
9 BY MR. ROUNSBORG:
10 Q. I was going to want to do a little stuff off
11 the record before we started, Mr. Harris, but since we
12 went on the record, we'll get some preliminaries out of
13 the way.
14 You understand there was a subpoena, and I
15 think that waiver was arranged?
16 A. Yes.
17 Q. Okay. Do you have your complete file with
18 you today on the Palace Lofts work you've done as it
19 relates to McDonald Waterproofing and other issues, I
20 guess?
21 A. Pardon me.
22 Yes, I do. I'm actually copying computer
23 files onto a flash drive that I intend to give to you.
24 Q. Will that include the photos we talked
25 about --
0009
1 A. It will.
2 Q. Okay. Do you have a hard copy that I could
3 just glance at real quick to make sure I --
4 A. Not of all those photos. No, I don't.
5 Q. No, no, not the photos. But the rest of your
6 file, is that --
7 A. Yeah. This -- this big ring binder is stuff
8 we printed out because we needed to at various points
9 in time. And then this little group of things right
10 here is stuff that is really directly pertinent to the
11 3m terrace. The 3M terrace stuff is in there, but
12 there's also 3L and other things around the building.
13 Okay. The -- the -- the 3M stuff I pulled out and
14 Ken -- Ken pulled out so we could reread it getting
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15 ready for today.
16 Q. Okay. And that's that little pile in front
17 of you?
18 A. It is.
19 Q. Which is the stuff you pulled out to review
20 for today?
21 A. That's -- yes.
22 Q. There's a whole bunch of other stuff here
23 that you provided to counsel or directly to Palace
24 Lofts prior to today; right?
25 A. That is correct.
0010
1 Q. Okay. And this should reflect, at least, the
2 hard copy stuff that you have given to them. So far,
3 I'm recognizing things and I'm --
4 A. Yes.
5 Q. Okay. I don't know if we have the intake
6 sheet. Well -- and I call it an intake sheet. Is
7 that --
8 A. Oh. A project setup sheet. It probably
9 means the same thing.
10 Q. It's probably in here somewhere, and it's
11 probably something that I glanced right past because
12 it's rare that you find anything in there of any
13 interest --
14 A. Uh-huh.
15 Q. -- or substance.
16 You know what? Let's just do this real
17 quick, too. You've given a lot of sworn testimony?
18 A. I have.
19 Q. You understand the general rules?
20 A. Yes.
21 Q. I ask; you answer. You and I are going to
22 talk over each other, I think, all day. It happens all
23 the time.
24 A. I can imagine, yes.
25 Q. I can't break myself of that habit. Let's
0011
1 try to avoid that so that we can be fair to the record
2 and to the court reporter. Yeses and noes, all that
3 kind of thing.
4 Can you tell me how many times you've given
5 sworn testimony? And if not, can you ballpark?
6 A. Ballpark, between 50 and 100.
7 Q. Okay.
8 A. Closer to 50, probably.
9 Q. No reasons we can't proceed today? You have
10 no issues?
11 If you need to take, you know, any breaks or
12 anything, you'll let me know?
13 A. No issues. I understand.
14 Q. Okay. As I'm glancing through this, I see a
15 sheet of bid quantities from an outfit called Blazer,
16 and it's with respect to, as I -- as it appears to me,
17 caulking and sealants. And I'm going to ask you to
18 just glance at that real briefly for me. Is that
19 what -- is that what that is?
20 A. It is. And this is probably loose, not
21 punched in, because it's something we were just doing
22 last week, going out and -- and looking at --
23 Q. Sure.
24 A. -- the completion of the caulking and sealant
25 work.
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0012
1 Q. Okay.
2 A. And I'm going to just answer a question you
3 haven't asked. There will occasionally be -- you'll
4 ask me to find something and I can't find it, and
5 you'll have better luck this afternoon with Ken on
6 that. Ken and I worked together on this project a lot,
7 back and forth, back and forth. But Ken is the true
8 custodian of the file.
9 Q. Okay.
10 A. Okay?
11 Q. So I'm not wasting my time taking his
12 deposition today?
13 A. No, no.
14 Q. At least to the extent that I need an
15 understanding of records and -- and we may not get to
16 that point. This might be pretty slick and quick. But
17 I appreciate that.
18 So this document from Blazer was provided to
19 you last week or the week before, sometime --
20 A. Probably the week before, but yes.
21 Q. Okay. And for the record -- and I'm not
22 going to mark this at this time -- it is an -- it's a
23 document that is Bates stamped, and I think it came
24 from Bornengineering's file, but it -- there appears to
25 be a Bates of 08070. I might want to probably get a
0013
1 copy of this. It kind of depends on where we go with
2 this.
3 Was this document -- the only time you used
4 this was with respect to your August 20 letter to
5 counsel; is that right?
6 A. Yes.
7 Q. All right. And did you, in fact, utilize
8 these bid quantities for computations of -- of any
9 kind?
10 A. We compared those quantities to what we
11 measured as to the total length of caulking and sealing
12 and quantities that were in other contractors' bids on
13 that same thing. Not everybody had the same
14 quantities.
15 Q. Okay. And that August 20 letter is fairly
16 familiar to you?
17 A. Yes.
18 Q. Did you write that, or did --
19 A. Ken wrote that. I -- I did the quality check
20 on it.
21 Q. Okay. J.R. Harris -- and you know what?
22 I've got to be honest with you. I didn't really review
23 your CV. So I'm just going from -- I probably should
24 have. But I thought I don't need to do that. We can
25 do this quick. I know who J.R. Harris is.
0014
1 You guys -- you guys do both -- you build as
2 well as --
3 A. We design for new construction.
4 Q. Right.
5 A. We design for remodel.
6 Q. Right.
7 A. But we also investigate problems.
8 Q. Right.
9 A. And we occasionally testify.
10 Q. That was my question: You cover the gamut
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11 from new construction to remodel, remediation --
12 A. Yes.
13 Q. -- to forensics?
14 A. Yes.
15 Q. Okay.
16 A. And -- and some other things, too.
17 Q. All right. And we're not -- I'm not going to
18 spend a whole lot of time on that August 20 letter.
19 But, typically, in your forensic work, when
20 you're making calculations and taking measurements of
21 quantities and linear feet and things of that matter,
22 in a report that you would prepare for litigation, you
23 understand and would provide some articulation of the
24 manner in which you made your calculations rather than
25 just providing final numbers, wouldn't you?
0015
1 A. Well, particularly where the calculations
2 are -- let -- I'll say more of a -- an involved nature,
3 as they often are in structural engineering. This was
4 fundamentally just a tabulation.
5 Q. I understand. But in recognizing that there
6 is a distinction between the kinds of calculations that
7 go into evaluations of shear and loads and things of
8 that matter, which are a bit more complicated than what
9 might have gone into the August 20 letter, you do
10 understand that what is required of a party in
11 disclosing the opinions and report of an expert is a
12 report that provides the bases for ultimate opinions.
13 So when we're talking about, at the end of
14 the day -- can't remember the word you used for it,
15 but -- you know, tabulation, is it not your
16 understanding that you are required to provide a
17 detailed discussion of the -- of the manner in which
18 you reached those numbers?
19 A. Um, no. I guess I'd have to say it's not my
20 understanding --
21 Q. Okay.
22 A. -- that we would. But I could easily tell
23 you what we did do. And it wasn't me personally who
24 did it, and it wasn't actually Ken who did it.
25 Q. Okay.
0016
1 A. It was another engineer in office. And
2 there's a lot of programs now that you can open and
3 look at PDF, portable document files.
4 Q. Sure.
5 A. We have scanned PDFs of the drawings prepared
6 by the original architect for the first construction of
7 the building.
8 Q. Okay. Let me stop you for a minute because
9 I'm not asking you for those details.
10 A. Okay. All right.
11 Q. And counsel is welcome to, if she's allowed
12 to, present any testimony by you with respect to that
13 issue. Given the nature of the handling of this
14 litigation up to this point and the rulings of the
15 Court, my question is -- is not as to what you did.
16 A. Okay.
17 Q. But there were things that you did with both
18 PDFs and comparisons of bid quantities from various
19 sources and actual on-site observations and
20 measurements that are not described in the August 20
21 letter. That is simply my question. Is that not true?
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22 A. Certainly, we don't describe how we added up
23 the numbers in the PDFs.
24 Q. Okay.
25 A. Okay.
0017
1 Q. When were you asked to perform the evaluation
2 that is, I guess, reflected in some part by that letter
3 of August 20?
4 A. It was --
5 Q. It was --
6 A. It was not very long before that.
7 Q. It was on or after August 11th, wasn't it?
8 A. Oh, yes.
9 Q. Okay.
10 A. It was. It was in August of this year, for
11 sure.
12 MR. ROUNSBORG: And I'm going to reserve the
13 right to at least argue to the Court that I be given
14 the opportunity to examine this witness further on the
15 issues reflected in that August 20 letter should the
16 Court change its mind and allow that as a disclosure
17 and allow testimony on those points at trial should we
18 be unable to resolve this case.
19 Q. (Perusing document.)
20 All right. I think -- I have all this, and I
21 appreciate that. And I -- I'm not absolutely certain
22 because we got some documents yesterday, I think, that
23 counsel may not have had, some emails and things of
24 that nature.
25 A. You have -- you -- you just very recently got
0018
1 something that -- that corrected the dates. I don't
2 know if you were told what happened, but we made --
3 Q. Yeah.
4 A. -- we made a mistake in sorting within
5 itself.
6 Q. Can I look at this real quick?
7 A. You sure may.
8 Q. And you pointed to and picked up a package of
9 documents which, on the top, has an appendix, which is
10 dated August 6, 2014. And this is -- I don't
11 understand what you mean by updated. Other than it
12 adds -- I guess there are things in red.
13 A. The things in red are mostly dates that
14 were -- that were -- the dates got sorted, and the
15 names of the files didn't get sorted, and so the dates
16 didn't match the files. All right? So --
17 Q. Right.
18 A. We provided you the corrected one. The
19 package in your hand has with it a copy of every one of
20 the documents we generated in our office that's in that
21 table. That package does not include other people's
22 work, just ours.
23 Q. Right. This packet -- for example, Item 6 on
24 the appendix is an email from Mike McDonald to Mike
25 Smith. Mike McDonald is the chief guy of my client.
0019
1 It's a document created by him. It's not in this
2 packet --
3 A. It is not.
4 Q. -- that's in my hands?
5 A. It is not.
6 Q. However, it is in your files. And I believe
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7 I've been provided that as part of your file, but I'll
8 also tell you I know what that is.
9 What you're saying is -- letter -- okay.
10 Number 2 is a letter report, and I don't know for sure
11 that that is a J.R. Harris report.
12 A. No, it's not.
13 Q. Right. If it were, it would be in here.
14 Since it isn't a J.R. Harris report, it's not in this
15 particular packet in my hands?
16 A. Yeah. If you turn to page 2 or maybe page 3,
17 towards the bottom of the page, there's a heading
18 "J.R. Harris & Company." And everything that's listed
19 under the "J" is what's in the binder clip.
20 Q. Starting at Item 31?
21 A. Yes.
22 Q. Okay. And that is the packet in my hand,
23 which may have been -- well, I think all this stuff had
24 been produced before, but it was provided to counsel
25 again with this updated appendix within the last couple
0020
1 of days?
2 A. That's correct.
3 Q. All right. So I think I've seen that.
4 A. Okay.
5 Q. There is a Velo bound thing in there --
6 A. That -- that's the letter we -- we wrote.
7 Q. Oh, okay.
8 A. And this is an appendix to that.
9 Q. Right. "This" being that appendix sheet --
10 A. This sheet in the package, yeah. Right.
11 Q. Document --
12 A. Yeah.
13 Q. -- is the appendix to the August 6, 2014,
14 report?
15 A. Yes, it is.
16 Q. All right.
17 (Perusing document.)
18 We're going to take a minute -- and I -- we
19 may just do it on the record but be kind of casual --
20 go through some photographs.
21 A. Sure.
22 Q. Because, probably, they will be the best I've
23 seen. I just kind of want to get an understanding of
24 where they -- what they are, where they originated.
25 And while I'm doing that, there is a
0021
1 photograph on page 16 of 19 of your rebuttal report
2 that was prepared for counsel on behalf of Palace Lofts
3 that reflects some elements of the construction at 3M
4 terrace. Okay. Are you with me so far?
5 A. I -- I am. I'd probably want to look at that
6 photo myself, too, in order to get the color one up on
7 the screen, but -- if that's what you want.
8 Q. Well, I guess for starters, can you -- do you
9 know when this photograph was taken?
10 A. I can deduce it. This photograph is one that
11 I am pretty sure was taken by Ken Cobb during the
12 demolition on 3M.
13 Q. Now, so --
14 A. And --
15 Q. -- so that I'm -- I'm with you.
16 A. Uh-huh.
17 Q. This is a demolition that occurred -- can you
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18 tell me when?
19 A. I can. I can't tell you off the top of my
20 head, but I can get there.
21 Q. Well, without a date, let's -- before we go
22 to the date, let's start with, whose work was being
23 demolished?
24 A. McDonald's.
25 Q. Okay.
0022
1 A. (Perusing document.)
2 Q. So I'm clear, that's a 3M photograph, not a
3 3L; right?
4 A. That's right.
5 Q. All right.
6 A. That's correct.
7 So the first thing I'm going to do is go in
8 here and look at the 3M file, and there will be...
9 (Perusing computer screen.)
10 There's -- there's a file -- so let me track
11 you through this so that when you have the electronic
12 file, you can look at the transcript of this and you'll
13 be able to track back to it.
14 You're going to have a folder that is called
15 "2566 Palace Lofts Unit 3L Terrace." That's sort of
16 our overall thing. That is the first thing that we
17 were asked to look at a particular question for.
18 Q. Now --
19 A. And these are --
20 Q. -- can --
21 A. Go ahead.
22 Q. Can I stop you?
23 A. Yes.
24 Q. Maybe you ought to go through it -- or maybe
25 you need to go through it. But if you don't mind, I'd
0023
1 like to stop you time to time.
2 A. That's fine. That's fine.
3 Q. Okay. You said this is your primary file,
4 because you were looking at a particular issue. It's
5 at 3L. You were first retained -- I'm not quite sure I
6 followed you there.
7 By whom was J.R. Harris first retained with
8 respect to this property?
9 A. The first telephone call was from an attorney
10 at Ivan Sarkissian's office.
11 Q. Scott Landry?
12 A. It might have been Scott, or it might have
13 been Ivan. I don't remember who the first call was
14 from. I worked with Scott in the end.
15 Q. But if it were Ivan, I would think you would
16 remember.
17 A. It's been several years ago.
18 Q. I'm picking on Ivan, as I'm sure you
19 understand.
20 A. Okay.
21 And there was a question about -- there had
22 been -- there were water problems in 3L. And there was
23 a statement by one expert that thought that the water
24 was getting to the top of the slab at a place in that
25 unit by coming from the outside through post-tensioning
0024
1 ducts -- ducts for the post-tensioning cables.
2 That's why they came to me. We have a
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3 reputation of knowing a lot about post-tensioned
4 concrete.
5 Q. This was the theory that because there was a
6 wet spot in the center of the master bedroom when
7 carpet was removed, the concrete --
8 A. Uh-huh.
9 Q. -- was wet. And was there -- that's the
10 issue that first brought you to this case; is that
11 right?
12 A. That is right.
13 Q. Someone's theory that water passed through
14 the post-tensioned system and then wicked up to the
15 floor?
16 A. Yes.
17 Q. Okay. Were there cracks at that location?
18 A. No.
19 Q. Okay. And I'm drawing a blank all of the
20 sudden as to who it was who had that theory. It was --
21 but it was an engineer retained by the owner of the 3L,
22 Karen --
23 A. Leutenegger.
24 Q. Thank you. Because I can never get that
25 right.
0025
1 Am I right --
2 A. It's been enough years, I've got it right
3 now.
4 Q. Practice, practice, practice. Okay.
5 So the time frame is in the context of that
6 litigation involving some alleged water intrusion into
7 Karen's -- I'm going to say Karen because I'm going to
8 get her last name wrong. And it's not out of
9 familiarity, but I just can't ever get it right. And I
10 think counsel has corrected me and other people, I
11 know, have.
12 That was the first call you received on this
13 project?
14 A. That's right.
15 Q. All right. And it was either from Scott or
16 Ivan at McConaughy & Sarkissian's office; correct?
17 A. Yes.
18 Q. And were you ultimately retained as an expert
19 for that litigation with the Unit 3L owner against
20 Palace Lofts?
21 A. We were certainly retained as a consultant.
22 I -- I don't believe I ever testified in -- in that
23 litigation, so -- I don't think it was necessary in
24 that sense. But we did write reports that would be
25 considered opinion reports. Okay?
0026
1 Q. Sure.
2 And your recollection is, you were not
3 examined by deposition?
4 A. I don't recall that I was.
5 Q. And did you know or are you aware that that
6 matter ultimately went to trial?
7 A. I guess I'm not really aware of the details
8 of its resolution, no. I -- I don't think I knew it
9 was really at trial.
10 Q. So it would be safe to say that you don't
11 recall testifying at the trial?
12 A. Oh, no. If I testified in the trial, I would
13 have remembered. Those are rare.
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14 Q. Okay. Now, in connection with your
15 evaluation of the theory of water wicking up from --
16 A. Post-tensioning tendons.
17 Q. The tendon. Thank you.
18 -- into the -- to the master in 3L, you
19 examined the terrace at 3M?
20 A. Yes.
21 Q. All right. Can you help me understand --
22 and, again, I just -- I suppose I -- if I had a better
23 handle on the progression of the opinions in that case,
24 I could lead you a little bit.
25 But do you have a recollection as to what led
0027
1 to the examination of waterproofing repair or
2 waterproofing original construction, waterproofing
3 issues on 3M -- what led you to look at that from the
4 theory that water was wicking up from the
5 post-tensioned slab tendon underneath the master in 3L?
6 A. Okay. The first thing I did with respect to
7 that issue was figure out, could the water actually get
8 there via the post-tensioning tendons. And I concluded
9 it could not.
10 And I had -- what I did on that was, I looked
11 at the original drawings, which were -- the only
12 records they had at the time were architectural. But
13 on the title page, I could see that the structural
14 engineer was somebody I knew, used to work with -- in
15 fact, a partner with in another firm years ago -- Steve
16 Jirsa at Jirsa Hedrick.
17 So I called Steve. Got his drawings for that
18 floor to determine where the post-tensioning tendons
19 were. There are none there.
20 Q. Okay.
21 A. It was a farfetched theory to begin with,
22 that water would do what they were saying it would do.
23 But since there were no tendons in the -- in the
24 vicinity, it was pretty easy to say that's not where
25 the water's coming from.
0028
1 Q. Okay.
2 A. So then that led to, well, where is it coming
3 from? That -- okay. Now, at that time, the
4 association had an architect named Larry Jenks, who I
5 had known 20, 30 years earlier, working -- 30 years or
6 so earlier working on waterproofing issues -- water
7 intrusion issues at 3L.
8 And Larry and I talked about it a lot,
9 consulted with each other. It -- the theory that it
10 was the post-tensioning tendons -- and if you don't
11 mind, I'll -- I'll make a sketch. I think it's the
12 easiest way to document it.
13 If you will, I'm drawing the walls of the
14 building here, and I'm going to label Blake Street out
15 here. Then I'm going to -- and I'll use a double line
16 for that, for the wall of the building.
17 So this is 3L, and over here is 3M
18 (indicating). And then there's a demising brick wall
19 between them.
20 Q. Right.
21 A. And there is -- I'm going to use a single
22 line for the terrace, just to not -- not confuse it.
23 There's a small terrace on 3L. There's a bigger
24 terrace on 3M. The wet spot is what I've clouded and
Page 12
0827jharris.txt
25 written "wet" on.
0029
1 Now, this is a plan. I'm going to draw a
2 section through this part of the structure. And so
3 here's the structural slab (indicating). And there
4 happened to be a line of columns in this wall. So I'm
5 going to use a dashed line to indicate that there's a
6 column there. There's a column on -- beyond out here,
7 also.
8 This terrace has a parapet wall built of
9 brick on it that is 8 inches thick, and it's 4 inches
10 sitting on the slab and 4 inches overhanging. And
11 there's a steel plate that supports that overhanging
12 part that goes on down. There are post-tensioning
13 tendons. Not where the wet spot is, but there are
14 post-tensioning tendons that -- are not a straight
15 line. They're put in the slab in a curve. They come
16 out at the edge of the slab, exactly at the mid line.
17 Q. Uh-huh.
18 A. The slab is 4 inches thick.
19 The theory was that water penetrates this
20 brick parapet construction. It enters the
21 post-tensioning tendon at that location and migrates to
22 here, comes up there.
23 Q. Finds a crack and wicks?
24 A. Yeah.
25 Q. How else is --
0030
1 A. Yes.
2 And the thing is, that that requires the
3 water to do some things it really can't do. It
4 requires it to have a hydrostatic head out here that's
5 higher than the high point of the tendon here, to push
6 it up over that hill and back down.
7 Q. Sure.
8 A. And then magically to come from the lower
9 spot up. And that's just not what happens. Okay?
10 Q. Okay. Honestly, I've represented a lot of
11 architects and engineers in my life. Fascinating stuff
12 for me.
13 A. Yes.
14 Q. I'm not terribly concerned with the
15 resolution in your mind, or anyone else's, of the
16 theory of the water coming up through the
17 post-tensioned tendons. I'm more concerned about --
18 and, again, for me, it's fascinating stuff. I love
19 this. But I'm more --
20 A. Well, I'm trying to answer your question.
21 Q. -- more concerned about, how do we get --
22 okay.
23 A. All right? And the next couple of sentences
24 will get you there.
25 Q. Okay.
0031
1 A. Okay? So just be --
2 Q. Be patient?
3 A. Be patient.
4 Q. Oh, my gosh.
5 A. And I'm not, so I can understand why you're
6 not. Okay?
7 So that says there's water here.
8 Q. Uh-huh.
9 A. It wasn't being generated inside the unit.
Page 13
0827jharris.txt
10 It's coming from the outside. How's it getting there?
11 Q. All right.
12 A. There's a brick wall here. This brick wall
13 does not hold up the building, but it keeps the weather
14 out.
15 Q. Right.
16 A. It is the closure wall. And -- and the brick
17 wall on this building is not the same every place. The
18 brick wall along Blake and 15th is a different kind of
19 construction than we have here (indicating). This
20 brick wall on what I'll call the property line side is
21 one thickness of brick, 8 inches nominally. Actually,
22 the dimension is about 7 1/2 inches, and it looks like
23 a concrete block. It has big, open cells in the
24 middle. All right?
25 It sits on the concrete slab and goes up
0032
1 to -- near the under side of the concrete slab above
2 where it is braced by some steel connections. But
3 it -- it's not bearing against that slab. Then that
4 keeps it from blowing over in the winter.
5 Water had to be getting through something in
6 that wall from the outside to the inside. Why it was
7 pooling there is, that's a low spot in the slab.
8 Q. Okay.
9 A. All right. So how -- what are the avenues
10 that it can get there? It could come through the brick
11 wall. There's a lot of people that have written things
12 saying that brick is porous. Brick itself is not
13 particularly porous. Brick wall construction can be
14 porous.
15 Q. Right.
16 A. It's the -- it's the seam between the mortar
17 joint and the brick where most water gets through,
18 unless you have a broken brick with a real crack in it.
19 Q. Right.
20 A. And it turns out, it's usually not the
21 horizontal joints. It's the vertical joints where
22 there is this little tiny separation between the mortar
23 and the brick. That's where water -- that -- that's an
24 avenue.
25 Another avenue is where you have a window,
0033
1 the head, the jambs, and the sill, you've got wood,
2 aluminum, steel construction for the window frame and
3 brick. And the joint between those things is another
4 avenue that water can get --
5 Q. The intersection of dissimilar materials is
6 always --
7 A. Yeah.
8 Q. -- a source of water intrusion, water
9 being --
10 A. Yeah.
11 Q. -- the enemy?
12 A. Then you've got --
13 Q. Right?
14 A. -- doors. Same thing as the windows.
15 Absolutely.
16 Q. Fenestrations?
17 A. Fenestrations.
18 Q. All right.
19 A. So you've got -- you've got the brick wall
20 itself. You've got the doors. You've got the windows.
Page 14
0827jharris.txt
21 And then, realize that this terrace out here is built
22 up. The deck is higher than the floor on the inside.
23 You remember as you go up a couple of steps to go
24 through the door threshold on these -- to -- to go from
25 the inside to a terrace.
0034
1 Q. Right.
2 A. It's not a roll-across threshold at all.
3 Q. Right.
4 A. Okay?
5 So water out here (indicating) is higher than
6 what -- than the floor in here.
7 Q. Right.
8 A. Water on the terrace is a potential source
9 also.
10 Q. True.
11 The wall system as well as the threshold
12 fenestrations --
13 A. All of those things.
14 Q. All of those things.
15 A. And so you asked what -- what led us, then,
16 to look at 3M as a source for water inside 3L.
17 Q. Right.
18 A. And it was the idea that, okay, it could be
19 getting through any of those things we just went
20 through.
21 Q. Right.
22 A. All right?
23 And given the configuration of things here,
24 it could be coming through and getting down to the
25 structural slab in this demising fence, if you will,
0035
1 brick fence, between 3L's terrace and 3M's terrace,
2 traveling on the structural slab.
3 It could be coming into the exterior wall of
4 3L through fenestrations or through the mortar joints,
5 or it could be doing exactly the same thing through 3M.
6 So -- and all of that needed to be looked at
7 as to how that water was getting in.
8 Q. Okay. At the time of your work, were the
9 patio conditions at both 3L and 3M original
10 construction conditions?
11 A. No.
12 Q. All right.
13 A. By the time we were involved --
14 Q. There has been?
15 A. -- 3M was McDonald's work, not the original.
16 Q. Right.
17 A. 3L was Eagle's work.
18 Q. Right.
19 So 3L had already been demolished?
20 A. Yes.
21 Q. Twice?
22 A. Yes.
23 Q. Right. Original construction was demoed,
24 reconstructed?
25 A. Yes.
0036
1 Q. And then by -- and your understanding is, by
2 McDonald Waterproofing?
3 A. Yes.
4 Q. And then McDonald's work was then demoed and
5 reconstructed by Eagle Construction?
Page 15
0827jharris.txt
6 A. Yes.
7 Q. Okay. 3M was -- original construction was
8 demoed, and its condition was -- as it was when
9 McDonald completed its work and any other trades may
10 have been called in -- I don't know if there were --
11 correct?
12 A. Yes.
13 Q. Had any work been done on the parapet wall
14 caps, to your recollection, at this time?
15 A. At 3M, I don't believe any had.
16 At 3L, work on the parapet wall cap was
17 ongoing, if you will. Design was ongoing by Larry
18 Jenks at the time we were first engaged. And then we
19 got deeply involved with Larry and with Eagle
20 Construction, and it ended up getting -- Eagle's final
21 work on that ended up being done according to our
22 drawing for --
23 Q. Okay.
24 A. -- repairing the parapet cap both on the
25 terrace wall and on the demising fence, by our design.
0037
1 Q. Okay. As I recall, there were metal caps
2 ultimately installed?
3 A. There was a metal cap flashing underneath
4 the --
5 Q. Under --
6 A. The top brick rowlock looks the same as the
7 original construction, but there's a through-the-wall
8 piece of metal underneath it.
9 And we also did a bunch of stuff to the
10 course of masonry that's immediately beneath that
11 through-the-wall metal flashing.
12 Q. Okay. Did -- and I'm getting sidetracked
13 here. But did the placement of the metal through the
14 wall require the disassembly of the last course of
15 brick on --
16 A. The top course.
17 Q. Yeah, the top -- I said last -- the top
18 course.
19 A. And it is the last. I mean, you lay it from
20 the bottom up.
21 Q. I don't know how you lay brick from the top
22 down. I guess you can -- doing it against the wall
23 and --
24 A. Uh-huh.
25 Q. -- somehow pin it.
0038
1 Okay. So it's just one course of brick, and
2 it's the last course --
3 A. Yes.
4 Q. -- or top course of brick?
5 A. Yes.
6 Q. It had to be removed both on the demising
7 wall, which is sloped --
8 A. It is.
9 Q. -- and the terrace walls?
10 A. Yes.
11 Q. Under the rails?
12 A. Yes.
13 Q. Okay. I wish you hadn't said that because
14 you distracted me. I've got to get back to where we
15 were.
16 When you came on and 3L had been demoed and
Page 16
0827jharris.txt
17 reconstructed by Eagle Construction, had the flood test
18 yet taken place on 3L?
19 A. Yes. It was already done before we were
20 involved.
21 Q. Okay. Did you examine the results of the
22 flood test?
23 A. Yes; mostly by discussion with Larry Jenks
24 and with Brian Ziegler.
25 Q. Okay. Was there any discussion of the
0039
1 failure of that test having anything to do with
2 thresholds or other elements of fenestration?
3 A. No. That -- that -- the test -- that test of
4 failure, actually, was after they decided that the
5 water test was successful, and they unplugged the
6 drains, and then all of the sudden, it wasn't
7 successful.
8 Q. Okay. Your understanding of that water test
9 is, they filled the tub -- 6 inches? I don't remember.
10 But they filled the tub.
11 A. Uh-huh.
12 Q. It sat for the requisite period of time.
13 They pulled the plug at the -- at -- I guess -- how
14 many drains -- there are two drains on 3L?
15 A. 3L has only one drain.
16 Q. Oh, it has only one --
17 A. It's -- it's a small terrace.
18 Q. And then that was pulled -- the plug was
19 pulled, and then water got into -- well, the test then
20 failed?
21 A. Yes.
22 Q. We had water intrusion into 3L; right?
23 That's your understanding. You weren't there.
24 A. I think it was below. I think it was below
25 into the second story. But I'm not 100 percent sure of
0040
1 that. I think that's where the water went.
2 Q. Okay. So it would have been at the lower
3 stage if it were a two-stage drain?
4 A. Yes.
5 Q. To get underneath -- well, hmm, I've got to
6 picture this.
7 There is a penetration through the slab for
8 that drain; right?
9 A. Yes.
10 It -- you know, we should probably go to the
11 original source to see what -- and, in fact, I -- I'm
12 not positive Larry Jenks was physically there when that
13 happened.
14 Q. Uh-huh.
15 A. But I believe he wrote an account of it.
16 Q. Right.
17 Do you have that handy?
18 A. I'm not sure. I'm just taking a quick look.
19 Q. I can look, too.
20 A. No, it's not -- there was an email that --
21 Q. Right.
22 A. -- that Larry sent me that Ken pulled out and
23 this -- that's not it. This is much earlier. So let's
24 see. Let me just think about that.
25 Q. What you're saying is, let's get to that
0041
1 original source.
Page 17
0827jharris.txt
2 A. Yeah.
3 Q. We can talk in more --
4 A. If you'll -- I -- you'll, I think, be
5 thankful for this later on. Let me just finish
6 something I started saying earlier.
7 Q. Don't distract me.
8 A. Yeah.
9 When you're going in to find things in this
10 electronic file I have here --
11 Q. Uh-huh. Oh, the --
12 A. -- you'll find -- you'll find a sub folder
13 called "JRH Work." That's this company's work. And in
14 there, you'll find a whole bunch of sub folders with
15 numbers like 2566.01, .02, .03. The different
16 assignments we have here.
17 Q. Okay.
18 A. And so .01, the 3L terrace was what I would
19 call the first investigation. .02, repairs to 3L.
20 Eventually, you'll find .08, which is the 3M terrace.
21 But it is -- let's see. Then, I convinced myself that
22 this file must be organized in a fashion that has --
23 Q. That's very dangerous.
24 A. Trying to find where Larry Jenks' reports
25 are. And if I knew that off the top of my head, I
0042
1 would tell you, but --
2 Q. April 8, 2011?
3 A. That's sounds like a right date.
4 Q. I don't know if that --
5 A. I just -- I just don't --
6 Q. It may not --
7 A. Oh.
8 Q. Sorry.
9 A. Go ahead.
10 Q. I said it may not help you because your file
11 isn't going to -- your file date isn't going to match
12 the date of the report, but maybe the name of the
13 document is. Let's see if I can find the discussion
14 of -- I ought to be able to -- the discussion of what
15 the...
16 A. I apologize. I -- I -- I should be able to
17 lay my hands on the electronic copy of that Jenks
18 report, and I have not done so. Ken will probably be
19 better at that than me.
20 Q. That's all right.
21 And I guess my concern was with the -- I've
22 got the hard copy here.
23 A. Good. Yes.
24 Q. We're talking about the flood test. And my
25 question -- not really my concern, but my question was,
0043
1 if the -- if following the flood test of 3L, the
2 manifestation of water intrusion was within the
3 interior of the unit below, how it got there, how it
4 got through the structural slab.
5 I guess I was sort of assuming that the leak
6 at the drain was where the lower stage connects to
7 the -- to the penetration through the slab and perhaps
8 worked its way across the slab and then found some path
9 through or around the slab.
10 Are you following what I'm asking?
11 A. I am. I am. I am.
12 Q. Okay.
Page 18
0827jharris.txt
13 A. And --
14 (Perusing document.)
15 Let's see if it mentions this in here
16 anyplace. Let me -- I -- I actually don't see it here.
17 You asked -- you asked a question that I haven't
18 answered: How could it go down versus across?
19 Q. Well, it -- I mean, I understand how it could
20 go down. My question was more that the flood test --
21 the manifestation of the -- of the intrusion of water
22 into the interior spaces, based on your recollection,
23 was in the unit, the enclosed space below Karen's unit,
24 rather than on the surface of the floor of Karen's
25 unit.
0044
1 And as I understand the interior construction
2 of her unit, we have flooring on the post-tensioned
3 slab rather than an elevated structural floor over the
4 top of the post-tensioned slab; right?
5 A. That's right. I mean, there are -- in most
6 of the units -- and -- and some of this flooring had
7 been removed from the Leutenegger unit when I was in
8 there.
9 Q. Right.
10 A. In the bedroom.
11 Q. That's right.
12 A. But most of the units, it is a
13 tongue-and-groove, finished wood flooring installed on
14 what I'm going to call sleepers, little strips of wood
15 that elevate it just slightly.
16 Q. It's not really a structurally elevated
17 floor?
18 A. No, it's not.
19 Q. Right.
20 And so here's where I am: The water intrudes
21 into the interior space but does not manifest itself on
22 the surface of her floor; rather, it has passed through
23 to the unit below.
24 A. No, that's not where I --
25 Q. Okay.
0045
1 A. I didn't mean to -- I did not mean to imply
2 that it -- that it went to the unit below from her
3 unit. If it went to the unit below -- so I've drawn
4 just a partial sketch here in which this is the
5 concrete structural slab. That's the lower part of the
6 drain assembly, and this is the masonry wall
7 (indicating).
8 Q. Right.
9 A. And if it went to the unit below, the path
10 would have been water going around through like this
11 (indicating).
12 The way these drains are usually -- they
13 usually don't have the drain on hand. They can -- they
14 will usually form a round hole through the full
15 thickness of the concrete slab.
16 Q. Sure.
17 A. But then they'll have to come back and do a
18 little chipping to fit the bowl in at the top.
19 Q. Sure.
20 A. So this is not watertight here.
21 Q. Right.
22 A. Okay?
23 And so if there is a failure in the
Page 19
0827jharris.txt
24 connection between the membrane and the bowl --
25 Q. The lower bowl.
0046
1 A. The lower bowl.
2 -- water can get around here and go down.
3 That's what I thought had happened. Now, I
4 don't -- but like I said, I wasn't there, and I didn't
5 even interview the people who did it.
6 Q. Time out.
7 The lower space below that drain is not
8 another terrace; it's just --
9 A. It's interior.
10 Q. It's interior space?
11 A. Yes, it is.
12 Q. All right. So -- okay. All right.
13 A. Yeah. Yeah.
14 Q. All right.
15 A. And, you know, this would have some sort of
16 an elbow. I'm sure it doesn't go down straight.
17 Q. Right.
18 A. Yeah.
19 Q. I believe -- and it may be through the
20 penetration itself that the drain at the bottom of the
21 bowl fits into drain piping that is -- that was
22 installed at the time that the post-tensioned slab was
23 poured?
24 A. Yes -- well --
25 Q. Okay.
0047
1 A. Yeah.
2 Q. Or --
3 A. A hole was formed when the post-tensioned
4 slab --
5 Q. Right.
6 A. -- was poured. Then a plumber put a drain in
7 the hole.
8 Q. Right.
9 And then this two-stage drain, the lower
10 bowl, would fit inside. And as long there's not an
11 obstruction somewhere down the line that backs water up
12 into that bowl and around --
13 A. Yeah.
14 Q. -- presumably, the water finds its way to --
15 A. Yes.
16 Q. -- to the --
17 A. Yes.
18 Q. -- to the greywater system --
19 A. Yes.
20 Q. -- of the City of Denver?
21 A. And so -- you know, there's a pipe -- up here
22 someplace (indicating), there's the actual grate that
23 you see when you're walking on the wearing surface.
24 And, you know, there's concrete wearing surface --
25 Q. Right.
0048
1 A. -- drainage course, membrane insulation, all
2 sorts of stuff between here and there (indicating).
3 And when the drain was plugged, there was water up here
4 (indicating). I'll just use a little triangle --
5 Q. You're drawing it above the top stage of the
6 two-stage drain, the first --
7 A. I am. Yeah. Right.
8 When there was a water test -- a flood test
Page 20
0827jharris.txt
9 going on, it was up here. It was plugged up here.
10 Then the plug was removed. So this water now starts
11 flowing down through here.
12 Q. Right.
13 And when it was plugged, we didn't have any
14 evidence of the failure of the first stage?
15 A. That's right.
16 Q. And when it was unplugged, the conclusion
17 was -- and I think perhaps rightly so -- that there was
18 a failure of the second stage.
19 A. Yeah.
20 Now, these two-stage drains, they have --
21 this -- this pipe has -- and there's photographs of
22 this kind of thing. We can look at it. I've drawn too
23 much of a dish to this bowl. There's not that much
24 vertical space there.
25 Q. I understand.
0049
1 A. But there's a hole here. You know, there's a
2 few holes around the perimeter of the pipe.
3 Q. Uh-huh.
4 A. And that's where water that comes in on the
5 membrane gets in and goes down the drain system.
6 Q. To the bottom of the first stage into the
7 bowl and through the second stage?
8 A. So if you -- if you imagine you're -- you all
9 of a sudden impose a lot of water on this system, this
10 volume that's on the terrace. And we don't have a pipe
11 that's just going straight down and flowing out.
12 There's a horizontal bend, and water flows slower on
13 a -- in a -- in a near horizontal pipe than it does
14 straight down vertical.
15 So all of a sudden, there's a little bit of a
16 hydrostatic head, which would not be normal --
17 Q. Right.
18 A. -- normal conditions.
19 And that pushes water out these holes, and it
20 found what amounts to a flaw, and it leaked.
21 Q. And that flaw would be in the -- the lower
22 bowl and its integration with waterproofing
23 materials --
24 A. Yes.
25 Q. -- on top of the post-tensioned slab?
0050
1 A. Yes.
2 Q. Okay. Now, when this water test was done, it
3 was done following Eagle Construction's work; right?
4 A. I think so.
5 Q. Okay. Now, in your original report, there is
6 noted that the actual Zurn two-stage drain that was
7 installed was not the one that was specified in the
8 engineering drawings for the remediation or the
9 reconstruction of the terraces by Bornengineering;
10 right?
11 A. That's right.
12 Q. Okay. And are you -- have you -- since 2012
13 when you wrote that report, have you since learned of
14 the circumstances that led to a substitution for a
15 second Zurn two-stage drain for the one originally
16 specced?
17 A. My understanding is this: McDonald
18 determined that the specified drain would require more
19 chipping of concrete to place the bowl in that -- in
Page 21
0827jharris.txt
20 that slab, and so he substituted a different drain. I
21 have never found anything other than testimony, you
22 know, that says that. I -- I never found an RFI during
23 construction or a change order --
24 Q. Sure.
25 A. -- or an approval from Borne that it was okay
0051
1 to do that.
2 But the substituted drain did have a path for
3 the second -- of the lower level of water to get out.
4 It does.
5 Q. Right.
6 A. It's not the same as Borne specified, but it
7 has a way for the water to get out.
8 Q. And I think that that -- that the issue --
9 well, I mean, I don't know if you've done the
10 computations of the capacity of the drain that was
11 actually installed by McDonald, and I -- like you, I
12 don't see an RFI. I don't see a request or a change
13 order. I don't see a documentation of the conversation
14 between the plumber who installed it on behalf of my
15 client and any representative of Borne.
16 But you haven't done any computations that --
17 or you -- at least not disclosed any computations of
18 any capacities of that substituted drain with which --
19 I mean that you have criticized, this capacity is
20 insufficient given original construction and the
21 pathway provided for drainage after and below the
22 post-tensioned slab.
23 Do you follow me?
24 A. Yeah. Let me state my answer and -- and see
25 if I am actually answering the question you are asking.
0052
1 Our original criticism of the drain that
2 McDonald installed was based upon what we learned from
3 Brian at Eagle Construction. That's before we actually
4 knew the model number.
5 Q. Right.
6 A. And it turns out, that the model number that
7 was actually installed -- so in 2012, we thought what
8 was installed was something that had no -- I'm going to
9 call them weep holes -- at the lower stage.
10 Q. Wasn't truly a two-stage drain?
11 A. Right.
12 And if -- and if there were no holes at all,
13 then it's bad. All right?
14 We've since learned what model was actually
15 installed. There are weep holes. It doesn't take much
16 capacity to drain water off the membrane. It -- the
17 capacity calculation is for the primary stage up at the
18 topping.
19 Q. Right.
20 And there's no criticism of the capacity that
21 was actually ultimately utilized?
22 A. There's not. The criticism is the marrying
23 of the membrane to the flange.
24 Q. Okay. The membrane to the flange of the
25 second-stage lower bowl?
0053
1 A. Yes. Absolutely.
2 Q. Okay. With you so far. I think we're still
3 on the same page.
4 Now, I guess we don't -- we don't really have
Page 22
0827jharris.txt
5 a criticism of the selection of the actual two-stage
6 drain that was utilized by McDonald in its
7 reconstruction of the terrace on -- the terraces, I
8 guess.
9 A. It's mostly a formality. It would have been
10 good to have documented, "We're going to substitute
11 this for that, Mr. Engineer. Is that okay?"
12 Q. If we're right and there is no RFI, no
13 supplemental instruction, no change order request and
14 change order entered, we may have a technical failure
15 of the process?
16 A. Yes. That's all.
17 Q. The process of change, approval, construction
18 substitution doesn't necessarily equate with a
19 deficiency in either design or construction?
20 A. That's correct.
21 Q. Okay. And that's what we're left with with
22 respect to the actual drain that was used, is simply a
23 failure of the process of construction and getting an
24 approval; right?
25 A. Yes.
0054
1 Q. We don't have a --
2 A. Yes.
3 Q. -- problem with -- I'm sorry.
4 We don't have a problem with the product
5 itself; correct?
6 A. No. The product will work when it's properly
7 installed.
8 Q. When it's properly installed?
9 A. Uh-huh.
10 Q. And the flood test -- all of a sudden,
11 I've -- the flood test was on 3?
12 A. L.
13 Q. 3L. It was 3L?
14 A. 3L.
15 Q. Okay.
16 A. You'll see that we ended up deciding there
17 was no need to flood test 3M after we -- after 3L had
18 been flood tested.
19 Q. Let's save that thought for just a moment.
20 A. Okay.
21 Q. And I've got to remember, 3L is Karen's unit,
22 not 3M?
23 A. That's right.
24 Q. 3L was the one that had been reconstructed
25 twice?
0055
1 A. Yes.
2 Q. After original construction; correct?
3 A. Yes.
4 Q. And the flood test was after the second
5 construction; correct?
6 A. I believe it was. I'm not 100 percent sure.
7 Q. Well, assume with me for the sake of the
8 question, and hopefully not argument -- and if I do
9 argue, I'll expect I'll generate an objection -- that
10 this flood test was performed after the demo of
11 McDonald's work and reconstruction by Eagle.
12 A. Yes.
13 Q. Right?
14 A. Yes.
15 Q. Now, the -- you reviewed the -- Jenks' plans
Page 23
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16 for the work that Eagle did on 3L with respect to
17 demolition of the terrace constructed by -- the terrace
18 waterproofing system constructed by McDonald and
19 reconstructed by Eagle; right?
20 A. Yes.
21 Q. Those plans, I can't recall how specific they
22 are with respect to the drain issue, but they -- but
23 the process of demolishing McDonald Waterproofing work
24 and redoing it would, by necessity, require the
25 disassembly of the first stage of the drain and then
0056
1 its reassembly on reconstruction or replacement
2 altogether of that two-stage drain; correct?
3 A. Well, yes.
4 So I actually want to make sure that -- I
5 want to do what I can. He has a -- I realized I should
6 have gone to the front where he has a table of
7 contents. "He" being Larry Jenks in his report.
8 Q. Right.
9 A. And he has in here a Section 6, beginning,
10 coincidentally, on page 6, at which he gives a
11 chronology of what he understands had been going on.
12 Q. Do you mind if I look over your shoulder?
13 A. Not at all. Yeah.
14 Q. Okay. And so he --
15 A. The first thing he lists was in 2008 that
16 Stefco caulked the perimeter of the topping slab on the
17 terrace at 3L.
18 Then in that same year, McDonald removed
19 concrete around the drain, a 2-foot-square section, and
20 installed a waterproofing patch within that section.
21 And that was in September.
22 Okay. There was a 24-hour water test
23 performed by Borne. It was not successful. That would
24 say that that test was done on whatever was in place in
25 2008. That's not -- that's definitely not Eagle
0057
1 Construction. And that's -- that one is not McDonald's
2 either other than just this patch.
3 Q. With the exception of the 2-by-2 section?
4 A. That's right.
5 Q. Right.
6 A. It was decided to replace -- and this says
7 there's two terrace drains. I swear I thought there
8 were two on 3M and one on 3L, but Larry may be right
9 here. Hmm.
10 By October 18th, both drains had been
11 replaced and the water test proved successful. Okay.
12 Then, in 2009, there was a redo on the perimeter caulk,
13 and that was by a contractor called Stefco.
14 Q. Right.
15 A. In 2010, Borne wrote a report on their
16 findings and -- with respect to water damage at 3L.
17 They thought there were four sealant joints in the
18 metal flashing, gaps around the doors and the -- that
19 was -- that what they found. Okay.
20 They actually cut out a 4-foot-by-4-foot
21 section of the topping all the way down to the
22 membrane, and they had discovered damage to the
23 membrane that probably had occurred during the original
24 construction of the building. So -- old source of
25 leaks.
0058
Page 24
0827jharris.txt
1 Q. Okay.
2 A. They concluded by recommending that the 3M --
3 3L terrace needed to be -- everything above the
4 structural slab needed to be torn out and redone.
5 Okay?
6 Q. Uh-huh.
7 A. That project was done in 2010. The
8 contractor was McDonald. According to Larry's word,
9 the record gets murky at this point.
10 Q. I like that line.
11 A. I did too. Yeah.
12 He couldn't find bid documents. That's
13 neither here nor there. All right.
14 Leaks continued after that remediation
15 according to Gene Budler. Gene Budler is a consultant
16 retained by Karen Leutenegger as to why her unit was
17 still seeing leaks. Okay.
18 Site inspection in 2011 that -- this is when
19 Larry first gets involved. I'm trying to -- I'm trying
20 to skip through to where there is a water test, if --
21 another one. Okay?
22 Q. Right.
23 A. And -- and he -- he is pointing out that
24 there's precious little vertical clearance between the
25 topping slab and the -- and the doorsill to have a nice
0059
1 waterproofing job there.
2 Q. Right.
3 A. And then he offers a bunch of opinions.
4 And -- okay.
5 So then following that, he has drawings of --
6 of how to construct an insulation, waterproofing, and
7 topping slab system for that terrace. It's in an
8 opinion report. And he found other issues. Okay?
9 Let me back up for just one second. This
10 report that we are going through is an April 8, 2011.
11 Q. Right.
12 A. Okay. A report from Larry Jenks. I think
13 this report is before then the second reconstruction.
14 Okay? This recommends the second reconstruction.
15 Q. Going through it in this manner, I believe
16 that is -- I believe that to be the case. And that
17 would explain why I struggled to find reference to the
18 water testing in that report.
19 A. Yeah.
20 Q. Let's go back to -- so let's go back to -- we
21 assume that following the issuance of this report,
22 Eagle Construction undertook to demolish and
23 reconstruct the terrace at 3L in accordance with Larry
24 Jenks' report?
25 A. No. Who did you say did that?
0060
1 Q. Eagle Construction.
2 A. Eagle, yes. I -- I heard McDonald. You said
3 Eagle. Eagle did, yes.
4 Q. Yeah. Eagle undertook to demolish McDonald's
5 work?
6 A. Yes.
7 Q. And reconstruct or rebuild a terrace
8 waterproofing system in accordance with Larry Jenks'
9 recommendations as contained in the April 8, 2011,
10 report.
11 I believe the documents will bear this out.
Page 25
0827jharris.txt
12 But the water test, if you'll just assume for me, was
13 conducted following Eagle Construction's demo of
14 McDonald's work and rebuild of the terrace
15 waterproofing system at 3L.
16 A. I think you're right, too.
17 Q. Right.
18 A. We haven't found the actual paperwork, but I
19 think you're right.
20 Q. And we can, but -- I'm going to -- you drew
21 us a -- you made us a drawing early on when we were
22 talking about the post-tensioned slab and the water --
23 and the theory of the water coming up through the --
24 MR. ROUNSBORG: I've marked that as
25 Exhibit 1.
0061
1 (Deposition Exhibit 1 was marked.)
2 Q. (BY MR. ROUNSBORG) I am going to mark this
3 next thing you just drew as Exhibit 2. And this is a
4 cross section of --
5 A. A drain through a slab.
6 Q. Yeah. Two -- a two-stage drain through slab.
7 A. Right.
8 (Deposition Exhibit 2 was marked.)
9 Q. (BY MR. ROUNSBORG) I've got a blue pen, and
10 I'm going to put an arrow where we discussed how the
11 path of water may go outside the drain into a lower
12 unit, with the blue pen.
13 And one way that can happen is, water pushes
14 out through the holes in the top stage, finds its way
15 around the flange of the lower stage. Because if it
16 comes up out of the bowl, there is not a good seal of a
17 waterproofing material to the flange of the lower
18 drain.
19 A. There wasn't, yes.
20 Q. There wasn't, right.
21 And this explains why, when the plug is
22 pulled from the top, which I've marked with an "x,"
23 that water then flows down. We've got a lot of water.
24 We've got some hydrostatic pressure, and it will push
25 water up out of that bowl and around the flange and
0062
1 into the interior space of the unit below the terrace.
2 If there's a failure of seal between a
3 waterproofing material at the level of the concrete
4 slab where the bowl sits down on it, we're going to get
5 water in there; right?
6 A. Yes. And --
7 Q. Okay. I'm going to hand you back Exhibit 2
8 with my "x's" and arrows.
9 A. So that -- that -- the discussion was, the
10 hydrostatic head can force water out through here.
11 Q. Right.
12 A. If there's not a good seal between the
13 membrane and the bowl, water can get under the
14 membrane. Once it's under the membrane -- one of the
15 places it can go is through the hole in the slab.
16 Q. Right.
17 A. The other place it can go -- it can go along
18 the slab surface --
19 Q. It -- it --
20 A. -- to some other place, including inside.
21 Q. Through the exterior wall of Karen's unit
22 into her living space?
Page 26
0827jharris.txt
23 A. Yes, it can.
24 Q. Right.
25 What we observed or what you understand was
0063
1 observed was water down below --
2 A. That's what I understand.
3 Q. Right.
4 A. Yes.
5 Q. Which is not a failure of the selection --
6 we've already covered that -- of a substitute two-stage
7 drain, but of, perhaps, that element of construction
8 and proper seal between the membrane at the lowest
9 level of the terrace construction and the flange of the
10 lower portion of the drain?
11 A. Yes.
12 Q. Second stage?
13 A. Yes.
14 Q. Okay. Now, in order to utilize that drain in
15 reconstruction, McDonald would have removed
16 the uppermost level -- well, they remove everything
17 from the post-tensioned slab to the surface of the
18 terrace. That's the demo part; right?
19 A. That is.
20 Q. And that would include, to the extent
21 necessary, the removal of any waterproofing membrane at
22 the level of the post-tensioned slab?
23 A. Yes.
24 Q. And then reconstruction would require that
25 you ensure that that second stage of the drain is
0064
1 properly placed in the penetration through the
2 post-tensioned slab; right?
3 A. Yes.
4 Q. Okay. And then it would require the
5 application of any waterproofing membrane at that
6 level, that is, the lowest level of the reconstruction
7 of the terrace, that being the post-tensioned -- top of
8 the post-tensioned slab.
9 A. Yes.
10 Q. Okay. And as part of that, there has to be a
11 proper integration of that membrane, whether
12 liquid-applied or otherwise, to the flange of the lower
13 stage -- the second stage of the two-stage drain;
14 right?
15 A. And Borne had a detail exactly for all of
16 that.
17 Q. Right.
18 So that we can, to a reasonable degree of
19 engineering certainty, say that if this water passed
20 around the back side of the second stage into the
21 living space of the lower -- of the unit below, because
22 a failure of integration of the bottom level of
23 membrane at the post-tensioned slab level to the flange
24 of the second stage, that that's not McDonald's work at
25 this point, if that flood test was done after Eagle's
0065
1 demo and reconstruction. True?
2 A. With all those ifs, I agree with that.
3 Q. Okay. Did you examine the flashing on the
4 exterior walls at 3M and 3L, the lower flashing at the
5 terrace level? And I think we can identify that as
6 somewhere between 2 and 4 courses of brick above the
7 surface of the terrace.
Page 27
0827jharris.txt
8 Do you know what I'm talking about?
9 A. Yes, I do.
10 Q. Okay.
11 A. There's a metal cap flashing that goes into
12 a -- in a mortar joint.
13 Q. Right.
14 A. And then there's a fairly complicated
15 two-piece counterflashing that -- that fits underneath
16 that and comes basically down to about the slab surface
17 and -- yeah. The number of courses of brick we
18 miscounted early on, and we arrived at a conclusion
19 that -- that we then wrote -- in terms of number of
20 courses of brick and where things were.
21 But we've since concluded, yeah -- no, that's
22 actually -- there's three courses there, not two,
23 behind all that metal.
24 Q. Right.
25 A. So there's five courses of brick from where
0066
1 the reglet is down to structural slab.
2 Q. Down to the structural slab?
3 A. Yes.
4 Q. How many courses is there from the bottom --
5 is that -- the reglet is -- it provides us the lowest
6 level of that flashing?
7 A. The reglet is actually at the highest level.
8 Q. Oh, it's at the highest level. Okay. I'm --
9 A. So that's 20 inches from there down to the
10 structural slab.
11 Q. And there was a computation of the thickness
12 of the construction of the terrace surface. And we, I
13 think, all know that the elastomeric liquid-applied
14 membrane was not applied up the --
15 A. Up the brick.
16 Q. -- up the brick to a point where we would
17 have a proper lap of the flash over -- over that;
18 right?
19 A. That's exactly right.
20 Q. Okay. I do not see in your reports any
21 analysis or evaluation of any damage that may have
22 resulted from that condition. And we're kind of
23 skipping a point here, and we can back up for the
24 record and cover it.
25 The Bornengineering plans called for
0067
1 application of the liquid-applied membrane up the
2 course of the brick underneath the flashing?
3 A. Yes, he did.
4 Q. All right. Would you -- all right.
5 You're not a contractor. You're not
6 responsible for means and methods of construction.
7 There's a whole host of people out there in the world,
8 as I'm sure you well know, who can't grasp that
9 concept.
10 Having said that, you are familiar with some
11 basic issues of means and methods of construction. Is
12 that fair to say?
13 A. Yes.
14 Q. All right. With respect to the application
15 of a liquid-applied membrane in these circumstances,
16 with those elements of existing construction, would you
17 agree that flashing would have to be removed for that
18 liquid membrane to be applied to sufficient height
Page 28
0827jharris.txt
19 to -- to --
20 A. To lap.
21 Q. Yeah, lap.
22 A. Yes.
23 Q. Lap.
24 A. Borne's drawing essentially required that.
25 It -- so it goes -- the means and methods ends up
0068
1 coming down to how you implement the requirement on
2 Borne's drawings where he pointed to the metal
3 flashing. And he basically said metal flashing
4 equivalent to what's there now.
5 He didn't say leave it in place throughout
6 the whole process, but it almost looks like that's what
7 did happen, because the -- the liquid-applied stuff
8 does not go above the bottom of the metal flashing.
9 And some of the original EPDM sheet goods membrane that
10 was put in during the first construction of Palace
11 Lofts was left there, and it was cut off at about the
12 bottom of that metal flashing. That was the original
13 membrane wrapping up under that flashing.
14 Q. Right.
15 A. And there was no marrying between that EPDM
16 and the liquid-applied. It -- they don't bond together
17 anyway.
18 Q. Right.
19 A. And so means and method -- the -- how you
20 take that metal off is a means and method issue. Do
21 you take it off carefully enough that you put the same
22 stuff back on, which Borne permitted, or do you rip it
23 off and put in some new, which Borne also permitted,
24 but he said it's going to have to be equivalent to
25 what's there now?
0069
1 Q. Right.
2 A. Honestly, it looks like the method that was
3 chosen didn't satisfy the engineering design.
4 Q. It would appear, would it not, that the
5 flashing, in fact, was simply not removed?
6 A. Yes.
7 Q. And it would appear to you that in order to
8 accomplish the goal of application of a liquid-applied
9 membrane to a sufficient height to allow appropriate
10 lap, top over bottom, top flash over bottom --
11 A. Membrane.
12 Q. -- membrane, that that flashing, in fact,
13 would have had to have been removed?
14 A. Yes.
15 Q. Okay. And either replaced or perhaps --
16 A. Or --
17 Q. -- reinstalled or perhaps replaced with --
18 Let me ask you this: A better -- the better
19 choice would have a different flashing than what was
20 there. Would you not agree?
21 A. The metal?
22 The detailing of the metal at the corners was
23 not great. So a better choice might have been
24 something that had a formed joint at the corner.
25 Q. Right.
0070
1 A. Yes. And I think Larry goes into that in
2 some detail.
3 Q. Neither here nor there. If it were never
Page 29
0827jharris.txt
4 removed in the first instance to allow application of
5 liquid-applied membrane to sufficient height so that
6 the flashing would lap over; right?
7 A. I'm sorry. I guess I missed the -- the
8 fundamental aspect of -- what was the question part of
9 it?
10 Q. It doesn't matter whether you put the old
11 stuff on or new stuff, if you're not --
12 A. If you --
13 Q. -- applying the membrane to a sufficient
14 height to allow it to lap over the top of that membrane
15 anyway?
16 A. That's true.
17 Q. Okay. What did we say? The top of the
18 flashing is how high off that -- the post-tensioned
19 slab, top surface?
20 A. Five courses of masonry, which on this --
21 this area is 20 inches.
22 Q. Twenty inches.
23 And then from the flashing up, aside from
24 fenestrations, we have however many courses of brick to
25 the next level; right?
0071
1 A. Oh, yes.
2 Q. Okay.
3 A. Yeah, there's -- I think the story-to-story
4 height is 10 feet. I'm not positive on that. And the
5 slab thickness is 8 inches.
6 Q. Okay.
7 A. And so that's -- there would be 28 courses
8 overall, which means there would be another 23 courses
9 above that reglet.
10 Q. I had a conversation with a representative of
11 your client or -- of your -- of the HOA with respect to
12 an early discussion of the order in which certain
13 elements of construction were placed by McDonald.
14 I believe that the record that has been
15 developed since 2012, in fairness to you, will reflect
16 that membrane -- the membrane that was to be at the top
17 of the -- over the roof board -- foam -- I think the
18 foam board insulation -- well, I know it was a foam
19 board insulation.
20 A. It was a foam board -- yes. Go ahead. I'll
21 let you ask the question.
22 Q. Yeah.
23 There is a discussion in 2012 that that
24 membrane that is supposed to be over the top of the
25 roof board, and rigid foam insulation was not applied
0072
1 there but rather was applied directly on top of the --
2 A. Post-tensioned slab.
3 Q. -- post-tensioned slab.
4 A. Yes.
5 Q. Do you recall that --
6 A. Yes.
7 Q. -- that discussion?
8 A. Yes.
9 Q. And, in fact, membrane was placed properly in
10 order -- in accordance with Borne's plans on top of the
11 roof board and rigid foam insulation. Have we resolved
12 that issue? It's no longer --
13 A. Yes. And I don't think we implied --
14 hopefully, we didn't write it -- that it was -- if it
Page 30
0827jharris.txt
15 was actually -- if, for instance, the membrane had
16 actually been applied to the structural slab itself,
17 that's not contrary to a lot of common practice.
18 Having insulation over the membrane does some good
19 things. Having, in this instance, the tapered
20 insulation under the membrane puts the membrane on a
21 slope.
22 Now, I'm a fan of both things. I like the
23 membrane on a slope, and I like the insulation above
24 the membrane. And to get there, you have another stage
25 of construction. But let's not go there. That's
0073
1 something we recommended for long-term durability, the
2 best we could think of. All right.
3 We thought that it wasn't done the way
4 Borne's drawing shows. I think it was with respect to
5 the order of the application. Structural slab is
6 there, insulation tapered, a fiberboard, roofing board,
7 liquid-applied membrane applied to that, a dimpled
8 plastic drainage layer, a -- a sheet of filter fabric
9 that covers that. And then over that, the concrete
10 topping.
11 Q. Right. Okay.
12 Yeah, I just wanted to make sure, because I
13 think in everybody else's view, that the question of
14 whether or not that membrane was probably placed in
15 location as detailed by Borne, I think, was pretty much
16 dead on. It was two years ago and a completely
17 different set of circumstances. So I appreciate that.
18 Do you have any knowledge that McDonald --
19 and I understand it's going to be secondhand, but
20 that's the nature the beast for you -- that McDonald
21 actually undertook to remove any of their work on the
22 parapet wall caps?
23 A. I don't have an understanding that McDonald
24 did, but I don't have an understanding that they
25 didn't --
0074
1 Q. Okay.
2 A. -- go back and redo anything. I -- I don't
3 know.
4 Q. All right.
5 (Discussion was held off the record.)
6 (Break taken from 10:34 a.m. to 10:50 a.m.)
7 Q. (BY MR. ROUNSBORG) Mr. Harris, when were you
8 made aware that -- well, let me first say, you were
9 initially disclosed as a nonretained witness in this
10 case in the initial disclosures. Were you aware of
11 that?
12 A. I can't say that I was, no. I don't think I
13 looked at many of the legal filings, if at all.
14 Q. A number of your reports and correspondence
15 were identified in expert disclosures which were
16 prepared in 2012 and 2013, the latest being
17 February 1st. And they were -- while we had seen all
18 this stuff before, they were disclosed to us as the
19 part of the expert disclosures and what you would be
20 testifying to on the 2nd of June this year.
21 Did you have discussions with counsel who
22 sits here today and/or anybody at Palace Lofts about
23 providing expert services in this litigation prior to
24 June 2nd, 2014?
25 A. I was aware that -- well, you know that I was
Page 31
0827jharris.txt
0075
1 on a walk-through in which Mike McDonald was present
2 and we walked around looking at various issues,
3 specifically the 3M. I discussed with him what I
4 thought needed to be done.
5 And then I was aware that following that,
6 negotiations were not successful and that a claim was
7 filed. I knew there was a lawsuit.
8 Now, remembering whether I was asked, could I
9 testify or not, I don't -- I don't remember that.
10 Q. Well, you opened files following
11 communications with either Scott Landry or Ivan
12 Sarkissian at McConaughy & Sarkissian; right?
13 A. Yes.
14 Q. And in connection with that work --
15 A. Oh, I was asked if I could testify on that 3L
16 lawsuit, the --
17 Q. With Karen?
18 A. Leutenegger versus the HOA. Yes.
19 Q. Right.
20 A. Yeah, I was asked about that. I thought you
21 were talking about this lawsuit. I'm sorry.
22 Q. I am. I'm trying to piece together just the
23 relationships with the litigation that J.R. Harris has.
24 And my understanding is that you were retained by
25 McConaughy & Sarkissian to provide services in
0076
1 connection with the Leutenegger lawsuit.
2 A. Yes.
3 Q. All right. And while I would imagine your
4 agreement was with McConaughy & Sarkissian, did you
5 have an understanding that you were retained by that
6 firm with the approval of the insurance company?
7 A. You know, I don't think I did. Insurance
8 company? I do know that it was with the approval of
9 the HOA.
10 Q. Okay.
11 A. Okay?
12 Q. Okay.
13 A. Yes.
14 And that in -- in reality, we took some
15 direction from Scott Landry and his assistant Sarah,
16 whose last name just escaped me, and we also took
17 instruction from the management company that the Board
18 was then using, which was St. Charles Town Company.
19 Q. Right.
20 A. Two or three different people there. The
21 most recent one was Beth Amore, I think.
22 Q. Okay.
23 A. And we took direction from James and -- and
24 the Board. And so the -- it -- I'll have to say that I
25 was then aware that the Board changed management
0077
1 companies at some point in time. I wasn't aware that
2 that also involved a change in -- in attorneys until
3 not all that long ago. A couple -- maybe -- maybe in
4 June of this -- of this year. And I just met Wendy for
5 the first time this morning.
6 Q. Okay. You're sitting here today -- and you
7 prepared some things this summer on behalf of Palace
8 Lofts?
9 A. Yes.
10 Q. You had an agreement back in 2012 with
Page 32
0827jharris.txt
11 McConaughy & Sarkissian; right?
12 A. Yeah. There was an email exchange of some
13 kind, yes.
14 Q. Right.
15 You know, whether it was a signed retainer
16 agreement or whatnot, that's who you were retained by
17 for those specific services; correct?
18 A. That's right.
19 Q. All right. As you sit here today, have you
20 been retained separate and apart from that retention by
21 McConaughy & Sarkissian?
22 A. Yeah. Early on, as we started looking at the
23 request of St. Charles Town Company and the Board and,
24 I think, primarily, St. Charles, we -- we asked the
25 question: Do you want all of this to follow the same
0078
1 building protocol as the 3L claim? And the answer was
2 no.
3 Which is why this file has several
4 subdivisions. That -- that comes from our accounting
5 system primarily. And so -- there's 10 different
6 accounts in the accounting system here. And we -- what
7 we tried to do was, everything that was specific to a
8 given unit, that -- that justified setting up a new
9 account -- and that instruction was from St. Charles
10 and the Board, not from McConaughy & Sarkissian.
11 Q. Okay.
12 A. So there's nine of them, if you will, that
13 have to do with St. Charles and the Board and one of
14 them having to do with -- the very first having to do
15 with McConaughy & Sarkissian. Then -- we -- we created
16 one of them as general, because there were things that
17 you could not tie to one specific unit. And it
18 primarily was our design of a -- a revised detail for
19 dealing with water infiltration into the cap on the
20 parapets of the terrace walls, something a little less
21 Maserati-like than the detail used at Unit 3L.
22 Q. Okay. Since June, do you have a new
23 agreement with anybody with respect to the work you're
24 providing?
25 A. No.
0079
1 Q. Since June, who are you billing?
2 A. The HOA.
3 Q. Okay. Let's take the view and -- you have
4 color pictures -- and you've got your system set up.
5 If you can put them up on the screen. And I understand
6 that that --
7 A. This one is for you.
8 Q. -- thing -- that thing that you're --
9 A. And I'm making one for Wendy.
10 Q. Thumb drive, I guess.
11 A. Yes.
12 Q. Is for me?
13 A. It is.
14 Q. And that will contain some of the photographs
15 that you can show on the screen here.
16 A. Yes, they -- it does.
17 Q. Can we take some time and just sort of look
18 at -- I don't know how many photos there are, but -- I
19 don't know how they're organized, and I don't know how
20 to ask you to walk through them with me.
21 A. Okay. So --
Page 33
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22 Q. Are they, by chance, chronological?
23 A. Many of them are.
24 So for instance, in this place that we are
25 right now -- and I can get that out of the way -- there
0080
1 are a large number of folders of photos. Within a
2 folder -- where we took it, it just has photos and a
3 year, month, date. All right? And all the photos in
4 that file will have been taken on that day.
5 Q. Okay.
6 A. In some instances, it -- it has an additional
7 identification as to what unit it has to do with.
8 Q. Right.
9 A. Because we were, perhaps, in more than one
10 unit that day. It doesn't -- anyway.
11 Q. Okay.
12 A. Then there are other files in here where we
13 didn't take the photos.
14 (Viewing computer screen.)
15 And so "3L Demo by Brian," that's Brian
16 Ziegler. "Photos by Brian Ziegler." Photos by Karen
17 Leutenegger -- or "K. Leutenegger."
18 "Photos of Drains," now, that one is one --
19 we may have to ask Ken where all of those came from.
20 "Sealant Test," that's one of ours, and it was over
21 multiple days. And then some other units that we took
22 photographs of.
23 Now, pertinent to the claim on this one,
24 probably the -- it turns out that -- I need to tell
25 you, unfortunately, not all the photos are actually in
0081
1 this big folder called "Photos."
2 Q. Uh-huh.
3 A. Some of them are buried under "JRH Work" and
4 "3M Terrace."
5 Q. Okay.
6 A. And we go to this -- "3M Terrace Demo
7 Photos," there are the -- there are two sets of photos
8 in here and -- and this one -- you have to pay
9 attention to the date taken. October 11th of 2011.
10 And then that is -- that is a demo taken by
11 someone of an earlier demolition, not the demolition of
12 the 3M terrace.
13 The December 8, 2013, that is the demolition
14 of 3M terrace, and those photos were taken by Ken Cobb.
15 And so I'm going to open this up, and you
16 may --
17 Q. That's a good spot.
18 A. And so they're just beginning --
19 jackhammering into the top of here.
20 Q. Okay.
21 A. And it was December. You can see the guys
22 are dressed warmly. And --
23 Q. Well, Denver has --
24 A. Wonderful --
25 Q. -- a moderate climate. Yeah.
0082
1 A. Yeah. Right.
2 Q. Can we walk through a few of these?
3 A. Yes. Yeah. Yeah. There are some things
4 that I do think you should see.
5 (Viewing computer screen.)
6 Here, Ken is measuring the thickness of the
Page 34
0827jharris.txt
7 topping and -- there's another later photograph that
8 shows that it's about 4 and a half inches thick. It --
9 Q. Okay.
10 A. It's plenty thick.
11 This is the -- the fabric part of the
12 drainage assembly. The drainage assembly is a dimpled
13 plastic sheet with a fabric on it. The fabric on it is
14 to keep the concrete from filling up the dimples --
15 Q. Right.
16 A. -- so that the water can run between the
17 dimples.
18 Another photograph of the same thing. And
19 actually, it may be -- it's slow because it's also
20 copying to this little disk. Let's -- let me do
21 something else here. Let's --
22 Q. Now, before we -- okay. Some thumb nails.
23 Yeah, just scroll through that real quick.
24 A. Well -- yeah, I'm going to get back down to
25 the -- the point we were looking at. Let's see. I've
0083
1 go to make sure --
2 Q. Got it. DSC. DSC. DSC. Okay. We -- there
3 we go.
4 A. This is where -- this is where we started.
5 All right.
6 Q. Right. Now, can I stop you for just a
7 minute?
8 A. You sure can.
9 Q. Let's go back up to that first photograph
10 that we earlier identified --
11 A. Right there.
12 Q. It's Ken -- it's -- yeah, there's a
13 picture -- is that Ken in the insulated bibs or
14 whatever, the brown --
15 A. No -- no, I don't think it is. That might be
16 Brian. You'll --
17 Q. Okay.
18 A. -- have to ask Ken. Because Ken --
19 Q. Ken took the picture?
20 A. Ken took the picture.
21 Q. These pictures, beginning with DSCN 0782 and
22 then progressing for a period of time, we could go back
23 to the details of these files and see that these
24 photographs were created in December 2013?
25 A. Yes.
0084
1 Q. Okay.
2 A. Yes.
3 Q. And that was during the demo of the 3M
4 terrace as it existed on December X, 2013?
5 A. That's right.
6 Q. And then was reconstructed.
7 A. Yes.
8 Q. Okay?
9 A. Yes.
10 Q. Now, this -- all right. And here's another
11 one, DSN --
12 A. It's just -- it's slowly filling things in
13 here.
14 Q. Okay. DSN -- DSCN -- excuse me -- 0801 --
15 A. Yes.
16 Q. -- is a photograph of a two-stage drain at
17 the point at which the terrace that existed at that
Page 35
0827jharris.txt
18 date in December was demoed down to whatever is now
19 sitting on top of the post-tensioned slab. That's how
20 far down we are right there? You can see --
21 A. Yeah.
22 Q. Can you see the flange of the second stage?
23 A. You -- you actually can't see the flange
24 here. This is --
25 Q. Okay.
0085
1 A. This is the drainage map. That's that
2 dimpled plastic.
3 Q. Oh, okay. I'm with you.
4 A. And so we're not to the membrane yet; and,
5 therefore, there's insulation under that -- and there
6 will be better photos as they -- as the --
7 Q. Okay.
8 A. -- demolition proceeds.
9 Q. And I don't need to see them. I just kind of
10 need to get a sense of what I'm looking at.
11 A. Yeah.
12 Q. And these are all from -- at least as --
13 A. There's a lot of these pictures.
14 Q. Bear with me for a second.
15 A. You bet.
16 Q. We are in -- I think we must be on your
17 server right now.
18 A. We are.
19 (Viewing computer screen.)
20 Q. And I need to ignore the equipment thing.
21 And we're looking at a file that you designated as
22 2566; right?
23 A. 2566, right.
24 Q. Palace Lofts, Unit 3 Terrace.
25 A. Yes. Except that it -- it turns out that --
0086
1 you know, that title is misleading. It's Palace Lofts
2 waterproofing terraces, caulking --
3 Q. It includes 3M? It includes --
4 A. It includes everything we've done at Palace
5 Lofts.
6 Q. Right.
7 From the original phone call from Ivan or
8 Scott?
9 A. Yes, from there on.
10 Q. Okay. That's all in that particular 2566.
11 And is 2566 what's on the thumb drive?
12 A. That's exactly right.
13 Q. All right. And, currently, we are in 2566.08
14 3M Terrace.
15 A. Yes.
16 Q. Which is a sub file of JRH Work.
17 A. Yes.
18 Q. Which is a file within 2566.
19 A. Yes.
20 Q. Within that sub file, we have Demo Photos.
21 And there are demo photos taken -- somewhere in this
22 folder -- we've identified December 2013 demo photos;
23 correct?
24 A. That's right, yes.
25 Q. There are also -- although the date that your
0087
1 file was created is one thing. The date that the photo
2 was taken, when we look in details, can tell us when
Page 36
0827jharris.txt
3 the photo was actually taken --
4 A. Yes, it can.
5 Q. -- assuming that the equipment was operating
6 properly?
7 A. Yes. Yes.
8 Q. So that we're looking at right now --
9 generally where we are, the DSCN 0804, for example, we
10 are in that range time -- temporally, we're in
11 December 2013?
12 A. December 2013, yeah.
13 Q. Within this "Demo Photos" file, there are
14 earlier photos from prior demo?
15 A. There are. And -- and Ken can answer where
16 those came from. I believe they probably came from
17 Brian on the demo of 3L, but I'm not positive.
18 Q. Brian?
19 A. Ziegler of Eagle Construction.
20 Q. Eagle Construction. Okay.
21 A. Which means I don't know whey they're in the
22 3M folder. That's a question you're going to have to
23 ask Ken, the custodian of the file.
24 Q. Yeah. Because if these were Brian's
25 photos --
0088
1 A. They wouldn't be 3M depo.
2 Q. If those are Brian's photos of Eagle's
3 construction of 3L's --
4 A. That's about 2011.
5 Q. -- terrace, then they wouldn't be 3M?
6 A. That's right.
7 Q. Okay.
8 A. Okay.
9 Q. Can we go back to -- you had -- you said
10 they're not all in -- for example, let's go to this sub
11 file of JRH Work.
12 A. Okay.
13 Q. So I think we need to go to the level of JRH
14 Work.
15 A. Okay.
16 Q. Was there a file of photos -- I think -- do
17 we have to scroll down?
18 A. Yeah.
19 Q. Do you know what I'm talking about?
20 A. This big one here (indicating).
21 Q. That photo.
22 A. This is actually -- if -- if the file is just
23 labeled with photos, year, month, date, that's -- that
24 is a file that technically could be under JRH Work
25 because we took those photos.
0089
1 Now, there are also files in here of photos
2 taken by other people.
3 Q. Right. Right.
4 Can you scroll down under Karen's -- photos
5 by Karen and see what else is in there?
6 A. Sure.
7 Q. Over drain, sealant test, 3M, 4L, 8H. 8H, is
8 that the bottom?
9 A. 8H is the bottom.
10 Q. Okay. All right.
11 Now, date modified is the computer date;
12 right?
13 A. It is.
Page 37
0827jharris.txt
14 Q. So we've got a photo taken -- for example,
15 we've got a folder of photos 2012-0702, which looks
16 like somebody took photos right before the 4th of July
17 and then downloaded them on the computer the next day.
18 A. Yes.
19 Q. And that would have been a -- 2012 would have
20 been a -- the 5th would have been a Thursday, huh? I
21 don't know.
22 A. I don't know either.
23 And it turns out that -- I have a hunch this
24 was a spray test of some kind, because the big file
25 here is actually a video.
0090
1 Let's see what --
2 Q. Okay.
3 A. Let's see what the image shows.
4 Q. What kind of spray test are we talking --
5 well --
6 (Viewing video.)
7 A. This -- this was -- we were -- we were
8 testing surface-applied sealant -- sealers. Sealers,
9 not sealant. Okay.
10 Q. Brick and mortar sealers?
11 A. Yes.
12 And this is on the -- a wall that -- we're
13 down in the alley here.
14 Q. Okay.
15 A. A wall in the parking garage.
16 Q. All right.
17 A. And so the video would be spraying the sealer
18 on in this particular instance, I think.
19 Q. Okay. So let's go back for a minute. In
20 the -- and we don't need to look at it. But in the JRH
21 Work --
22 A. Uh-huh.
23 Q. -- folder --
24 A. Uh-huh.
25 Q. -- it is the 3M Terrace and Demo Photos. We
0091
1 were looking at that.
2 A. Yes.
3 Q. Those photos were taken in December of 2013.
4 Could you open that again so I can see when
5 the computer file was created?
6 A. Sure.
7 Q. We need to go to details, I guess.
8 A. Yes, we do.
9 Okay. So the date modified -- and, once
10 again, the top of this file -- just because of the way
11 it's ordered, files --
12 Q. Right.
13 A. -- are these 2011 photos. And, now, this
14 DSCN --
15 Q. Right.
16 A. -- 0781 is the first one of Ken's. All
17 right. It turned out he loaded them onto the computer
18 the same day he took them.
19 Q. Well, it almost looks like he loaded at the
20 same them.
21 A. It does.
22 Q. 10:54 p.m.
23 A. Yeah.
24 Q. That doesn't make much sense.
Page 38
0827jharris.txt
25 A. No. I can tell you that the camera Ken uses
0092
1 oftentimes has got a.m. and p.m. screwed up.
2 Q. Now, does he --
3 A. Yeah.
4 Q. Would he carry with him a laptop with a --
5 with -- I don't know what you call it.
6 A. I doubt -- I doubt that he carried a laptop
7 down there that day. He sometimes does. He has a
8 laptop. But usually he brings a camera back to office.
9 Q. He doesn't?
10 A. This date modified here is -- it's -- what --
11 what -- what Microsoft pulls off for all of these dates
12 is sometimes puzzling. And so -- for instance, in this
13 instance, I wanted date taken. We could find what
14 Microsoft calls date created, and it would be the same
15 as the date taken. And I don't know what that means.
16 Q. Okay.
17 A. Date created --
18 Q. Well --
19 A. You know, we -- we can add that, for
20 instance, to this list and just see what it looks like.
21 And -- you know, for instance, it's two days later.
22 That's probably when this got put on the computer.
23 Q. Okay. So date modified. He took the
24 picture. Didn't change the picture.
25 A. Yeah.
0093
1 Q. That's why it's the same date and time.
2 A. Yeah.
3 Q. Date created is the computer file after it's
4 been uploaded from the camera.
5 A. Yeah.
6 Q. I didn't think he was walking around with
7 a --
8 A. No.
9 Q. -- laptop in a holster and a hard cord --
10 A. No.
11 Q. -- directly to his camera.
12 Okay. All right.
13 And would it be J.R. Harris' practice to
14 upload any pertinent photographs of any project --
15 well, is there a policy with respect to how long you
16 ought to have the stuff on the camera before you get it
17 on the system?
18 A. It depends upon physically where you're at.
19 It's --
20 Q. Sure.
21 A. The idea is, is usually the next day you get
22 back to work, you load them from the camera onto the
23 server just so they're backed up. But, you know, if
24 you're -- and I'm not exaggerating -- if I'm in Tunisia
25 for two weeks, it is a long time, and so --
0094
1 Q. It is as soon as practical after -- following
2 the taking of the photographs?
3 A. Right. If I took photographs yesterday
4 afternoon, and I'm being deposed today on a different
5 case, it will wait until this deposition's over. And
6 I'll get around to it.
7 Q. Well --
8 A. So sometimes it takes awhile.
9 Q. That might be unusual because, you know,
Page 39
0827jharris.txt
10 deposition would be a pretty high priority; right?
11 A. Exactly, yeah.
12 Q. All right. Did you take any of the
13 photographs that are on the system?
14 A. Yes.
15 Q. All right. Can you take me to those?
16 A. Actually --
17 Q. And any photographs that you may --
18 A. Yeah. A lot -- a lot of these that are under
19 that big folder "Photos" --
20 Q. Uh-huh.
21 A. -- are taken by me. And so if we go to this
22 first one, August -- excuse me -- July of -- this is
23 the 3L terrace. This is the interior of the 3L. I
24 took those photos.
25 Now, we don't have anything that is going to
0095
1 tell you systematically, if you don't have Ken or me in
2 front of you, which one of us took the photos. But I
3 can tell you that within this "Photos" directory, I
4 probably took the majority of those photos.
5 Q. Of those.
6 But then JRH Work, unless otherwise
7 identified as they are here, photos by Brian Ziegler --
8 if we go to the "JRH Work Demo Photos" --
9 A. Those were -- those were Ken.
10 Q. -- and then -- in 2013?
11 A. Yes.
12 Q. Ken.
13 A. Uh-huh.
14 Q. In say, 2011, I think we see --
15 A. Yeah.
16 Q. -- those are probably somebody else's?
17 A. Yeah.
18 And like I said, I suspect -- the fact is I
19 don't -- this is -- this is demolition of --
20 Q. 3L?
21 A. 3L.
22 Q. 3L McDonald or 3L original?
23 A. 3L McDonald. In 2011, it would have been --
24 Q. Yeah, that would be --
25 A. And -- whoops, we just -- we went --
0096
1 Q. Yeah. Then we've gone past it.
2 A. There's just that many photographs -- from
3 here (indicating) up is what those photos are.
4 Q. And "from here" -- can I interrupt for a
5 minute?
6 A. Yes, sir.
7 Q. -- and say that it looks like that
8 photograph -- that photograph -- the last photograph in
9 the series before Ken's photos of 3M demo --
10 A. Uh-huh.
11 Q. -- that photo is labeled DSC 0036. The next
12 one is DSCN 0781, which would be the first paragraph --
13 or photograph in the series of photographs taken by Ken
14 during demo of 3 --
15 A. M.
16 Q. -- M?
17 A. Yes.
18 Q. Thank you. Okay.
19 A. Uh-huh.
20 Q. Okay.
Page 40
0827jharris.txt
21 A. So Ken probably will remember where those
22 came from. I suspect they were from Brian.
23 I can tell you that -- another just useful
24 fact, is when I look -- when you look at the ones that
25 are noted as "K. Leutenegger," these -- she put onto
0097
1 the -- DropBox or the equivalent of DropBox at the
2 time.
3 Q. Yeah.
4 A. And her -- her photos, she typically had the
5 date feature turned on. And so if you look at the
6 photo, it has a date stamp on the photo.
7 Q. Photo itself.
8 A. And be careful, because these photos -- she
9 just picked a few photos of various things to show me,
10 and it covers multiple years. You've got to -- you've
11 got to pay -- you know, you go from one image to the
12 next, you'd be jumping two years.
13 Q. Your date created on the computer isn't
14 something I want to rely on when I'm looking at photos
15 taken by Brian or Karen or -- particularly Karen?
16 A. Yeah. You know, it's --
17 Q. Fair enough.
18 A. -- interesting. So -- yeah. That -- that's
19 right. Exactly.
20 Q. Okay. I just want to clean this up.
21 I've marked as Exhibit 2 your -- I think I
22 said this before, where I put my "x" on the -- where
23 the plug is on the first stage and then the arrow
24 showing potential path of water around the second
25 stage.
0098
1 A. Yes.
2 Q. Okay. And that was Exhibit 2.
3 A. Yes.
4 Q. I was going to move on to a couple other
5 exhibits, and I didn't want to --
6 A. That's fine.
7 Q. -- confuse anybody but myself.
8 (Deposition Exhibit 3 was marked.)
9 Q. (BY MR. ROUNSBORG) I'm going to hand you
10 what I'm marking as Harris Exhibit 3, which is a letter
11 report dated August 6, 2014. I'll ask you to take a
12 look at that for me. And assuming as recent as it is,
13 that it is familiar to you.
14 A. It is.
15 Q. Okay.
16 If we go back to -- you know what? Can I see
17 those, please? I think that I've got a problem with
18 the copier. I might want to pull some pages off of
19 this. Sure enough.
20 A. Yeah, there was a yellow highlighter on the
21 dates that were probably wrong.
22 Q. Well, and there's the appendix. It's got
23 some notes that somebody drew. Somehow we didn't get a
24 clean one copied. So I don't -- I'm not terribly
25 concerned that anybody sees it, but I want to preserve
0099
1 my work product all the same. Yeah. All kinds of
2 highlights on this, huh?
3 I am removing just -- everything after the
4 signature page, and it simply is a copy of the appendix
5 I believe as updated. No.
Page 41
0827jharris.txt
6 A. Could be. We can check.
7 Q. Neither here nor there.
8 A. Okay.
9 Q. We've already looked at the updated one, and
10 I'm -- I'm comfortable with where I am.
11 So Exhibit 3 is a letter dated August 6,
12 2014. You told me you're familiar with it. And it has
13 both your signature and Ken's; right?
14 A. Yes.
15 Q. Did one of the two of you assume primary
16 responsibility for the writing of this report?
17 A. Ken did the primary writing job. He and I
18 outlined it together. He wrote it. And I reviewed it.
19 Q. Okay. On the first page -- and we'll
20 typically see this -- there is the title "Scope."
21 A. Yes.
22 Q. How was your scope for this -- or how was
23 J.R. Harris' scope for this project defined for this
24 report?
25 A. Oh, for this report. I mean, we ended up --
0100
1 we decided to put -- put this section in in this
2 fashion because it goes -- the issues pertinent to
3 leaks at the 3M terrace go back a long way in our work
4 on this project, and we thought it best that we
5 describe that as clearly as we could.
6 So it wasn't that somebody said, "You need to
7 go back and include the review of Martin/Martin's
8 letter," for example. No.
9 Q. Uh-huh. Sure.
10 A. That was our decision to put this stuff in.
11 Q. Okay.
12 (Interruption in proceedings.)
13 (Discussion was held off the record.)
14 Q. (BY MR. ROUNSBORG) Okay. Were you directed
15 by anyone to restrict your work on this rebuttal report
16 to opinions that you had previously expressed in
17 reports prepared in connection with the Leutenegger
18 lawsuit?
19 A. No, not that I can recall.
20 (Deposition Exhibit 4 was marked.)
21 Q. (BY MR. ROUNSBORG) I'm going to hand you a
22 copy of what I've marked as --
23 MR. ROUNSBORG: Oh, yeah, you would do that,
24 wouldn't you?
25 I've got another copy, and that is that
0101
1 double-sided copy, which I didn't want.
2 (Discussion was held off the record.)
3 Q. (BY MR. ROUNSBORG) I'm going to hand you
4 what I've marked as Harris Exhibit 4 and ask you if you
5 have -- and I don't believe you've seen it in this --
6 you've probably seen some of the things in here, but I
7 don't believe you've actually seen that submission.
8 A. (Perusing document.)
9 Q. I think you told me earlier. Is that right?
10 A. That's correct.
11 Q. All right. So in connection with your -- the
12 preparation of your work that resulted in the letter
13 report of August 6, 2014, you didn't refer to this
14 document, Plaintiff's C.R.C.P. 26(a)(2) Disclosures,
15 and specifically those items listed under A 1, which is
16 James Robert Harris and Kenneth W. Cobb, the August 21
Page 42
0827jharris.txt
17 report, November 5 report, December 18 report, those
18 three from 2012, and then the -- well, I guess December
19 is correspondence, and then the correspondence from
20 January and February of 2013.
21 You were not provided this document and
22 advised that the rebuttal that you were asked to
23 prepare was also in relation to these initial reports
24 disclosed by Palace Lofts; is that right?
25 A. No. My -- now, I will tell you that you
0102
1 might want to ask that question of Ken.
2 Q. Okay.
3 A. Because the phone conversation that we needed
4 to prepare a report was almost certainly between Wendy
5 and Ken.
6 Q. Okay.
7 A. Unlike the phone conversation that -- "We
8 need you to quantify the caulking and sealant issue."
9 That was James to me. But the -- so it may be that
10 there was some -- some direction that I'm not aware of.
11 What I was -- am aware of is, there was a report from
12 RealArchitecture.
13 Q. Right.
14 A. And we needed to read that and respond to
15 that.
16 Q. Okay.
17 (Deposition Exhibit 5 was marked.)
18 Q. (BY MR. ROUNSBORG) I'm going to hand you
19 what I've marked as Exhibit 5, Harris Exhibit 5, which
20 is a copy of an email from Jim Harris -- I assume
21 that's you.
22 A. It is.
23 Q. -- to Mr. Wyse and some other people.
24 Would you review that document. Do you
25 recall it?
0103
1 A. (Perusing document.)
2 I'm just -- I'm reviewing it right now
3 because I don't -- ah, yeah, I -- I did read this
4 summer. Okay.
5 Q. I'm in the right one again. The third
6 paragraph of this email --
7 A. Yes.
8 Q. -- states: "Given the significant cost of
9 any replacement system, I think it is worth a try to
10 see" --
11 A. And that should be "if" rather than "of."
12 Q. Okay.
13 -- "if McDonald can extend his membrane to
14 pass the flood test specified in the attachment."
15 All right?
16 A. Uh-huh.
17 Q. We're talking about 3M; correct?
18 A. We are.
19 Q. And this is before the December 2013 demo on
20 3M; right?
21 A. Yes. By more than a year.
22 Q. Yeah. Okay.
23 The next sentence states: "I have not sent
24 this on to McDonald, because I need to discuss with you
25 just what he has volunteered to perform and what that
0104
1 leaves for the Board to have done by other
Page 43
0827jharris.txt
2 contractors."
3 Do you see that?
4 A. I do.
5 Q. Had you had communications with someone at
6 McDonald during some -- or regarding some of the issues
7 at --
8 A. The only conversation I had with anybody at
9 McDonald was with Mike McDonald on a walk-through of
10 the Palace Lofts, which included 3M.
11 Q. Okay.
12 A. Some day that summer. I don't remember the
13 date.
14 Q. Okay.
15 A. I had a conversation with Mike, and that was
16 it.
17 Q. So is it safe to say that you did not send
18 this on to Mr. McDonald -- well, no, that's not fair at
19 all because you didn't have any conversation.
20 At any --
21 A. I had -- I had had one about, can we do this,
22 you know.
23 Q. Right.
24 With respect to this issue, let me first ask
25 you what you mean by, "to see if McDonald can extend
0105
1 his membrane to pass the flood test."
2 Are we talking about extending the membrane
3 up the course of bricks?
4 A. Yes, we are.
5 Q. Okay. Where it was determined that it wasn't
6 up as high as it should be in order for it to be
7 underneath the overlapped flashing; right?
8 A. Yes.
9 Q. I just want to make sure that that's the
10 issue we're talking about when you say "We ought to see
11 if he can do that."
12 A. Yes.
13 Q. And then you go on to say, but I haven't
14 passed this on to him, because I don't know what you
15 guys have discussed.
16 A. Yes.
17 Q. All right. Now, I don't have an email
18 response -- I haven't seen one, anyway -- or any other
19 evidence of correspondence back to you in response to
20 this email. Do you have any recollection of any
21 conversations with anybody from the HOA following your
22 sending of this email about -- about this particular --
23 specifically --
24 A. About that paragraph?
25 Q. Right.
0106
1 A. I just remember that there were negotiations
2 going on between the HOA and -- and -- and McDonald,
3 and I was told that those negotiations were going on.
4 Q. And, in fact, I think this reflects that you
5 had some knowledge because you state: "I need to
6 discuss with you just what he has volunteered."
7 A. Yes.
8 Q. Did you discuss with the Board, following the
9 sending of this email, what McDonald had offered to do
10 to address the, I guess, shortage of liquid-applied
11 membrane up the vertical surface of the wall?
12 A. There was at least some discussion. Some of
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13 it is reflected in other correspondence and emails.
14 Q. Uh-huh.
15 A. But the discussion was, I think,
16 fundamentally around these issues. It was our opinion
17 that you had to remove some concrete in order to get a
18 decent lap between the membrane that he had applied and
19 the extension that we needed. So this -- the --
20 the lapping was sort of twofold: One, it needs to
21 extend up well into the zone covered by the metal
22 counterflashing; but it also needs to extend down from
23 the top of the then current topping slab, far enough
24 that it really bonds with the liquid membrane that he
25 had painted on earlier.
0107
1 Q. Right.
2 A. Okay. And that means removing some concrete.
3 And --
4 Q. Wait. Let me stop you there.
5 Where would the concrete be removed to
6 provide new lap with the new liquid-applied membrane
7 over the existing dried elastomeric liquid-applied
8 membrane?
9 A. Yes. Sketch --
10 Q. I hid your sketch paper.
11 A. That's all right. So --
12 (Witness drawing.)
13 Call this the topping. And then we've got
14 the --
15 Q. The drainage mat?
16 A. Yeah, the drainage mat.
17 Q. Could you put a "DM" by that?
18 A. (Deponent complying.)
19 Q. Okay. Thank you.
20 A. And there's a protection board. There's the
21 membrane.
22 Q. Right.
23 A. Membrane comes up to about there
24 (indicating).
25 Then there is the fiberboard. I think you
0108
1 called it roof --
2 Q. Roof board, but yeah.
3 A. Yeah.
4 And then there is the insulation.
5 Q. Okay.
6 A. And over here is the brick wall. Okay.
7 Q. Right.
8 Now, you've hashed the brick wall.
9 A. Uh-huh.
10 Q. And there is a line coming from below the
11 drainage mat and -- and -- well --
12 A. So then what I was going to do is, I'm going
13 to use a second color --
14 Q. There you go.
15 A. -- if that's okay.
16 Q. Yeah. Absolutely.
17 A. All right. What we thought had to be done
18 was at some distance away -- not -- I'm drawing this
19 pretty close. It really depends upon the equipment
20 that one has.
21 Q. Sure.
22 A. You've got to saw cut that slab.
23 Q. Right.
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24 A. Now, I would personally saw cut it after
25 drilling a hole or two, figure out how thick it was.
0109
1 Saw cut it down to within -- this is Jim Harris' means
2 and methods. Different contractors have different
3 means and methods. All right? So I can stick a blade
4 in here and -- and crack the -- get this out. Okay?
5 Q. Right.
6 A. Now, Mike was very concerned that you can't
7 do this because you're going to cut the membrane.
8 Q. You're going to compromise the other
9 elements; right?
10 A. Well, I don't care about compromising the
11 drainage layer here, but I do care about compromising
12 the membrane. Okay.
13 And -- and, you know, we didn't label
14 membrane, but I'm -- I'm --
15 Q. It's the bold line. Yeah.
16 A. That's the membrane. Okay?
17 Q. When you say Mike --
18 A. McDonald.
19 Q. Mike was concerned that saw cutting the
20 topping slab and removing a section to reveal the
21 previously applied membrane could compromise the
22 membrane on the horizontal surface above the
23 fiberboard?
24 A. Yes. So then I'm going to label this
25 "extended membrane." Notice I'm lapping it several
0110
1 inches. Okay?
2 Q. Sure.
3 A. And that would provide a water barrier. Then
4 you would actually have to -- you may have to replace a
5 little bit of this drainage mat. I -- I don't think
6 that's a -- a big deal at all. The way I -- the way I
7 saw this being done, you weren't going to damage the
8 existing membrane. You were going to -- then -- then,
9 of course -- I'll leave the -- I'll go back to the
10 pencil. There's this complicated geometry of the
11 counterflashing and flashing and the hinge in there --
12 the metal piece that sits there (indicating). Okay?
13 That would have to come off in order to do this.
14 Q. Absolutely.
15 A. Then get put back on.
16 Q. Okay.
17 A. Then the issues that I discussed verbally --
18 and I -- I know they're -- some of them are written in
19 some places -- is, this concrete is going to look
20 different than that concrete. And you've got to --
21 you've got to have a couple of things going on. You've
22 got to have a craftsman doing this that can produce
23 good-looking work. And you have to have agreement from
24 the unit owner that they'll accept that, because it
25 won't look the same as an unblemished, unpatched
0111
1 concrete topping. It could affect the value of their
2 unit.
3 Q. Right.
4 A. You know, I'm just saying, if I want to stop
5 water, maybe this can work.
6 Now, there's -- there's -- the other thing I
7 know I discussed -- and it probably isn't written --
8 is, there are warranty issues here. Anybody other than
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9 the guy who puts this in wouldn't warranty this.
10 Q. Did you ask anybody that?
11 A. Every waterproofer I've talked to won't
12 warranty a patch they put on somebody else's work.
13 Q. Okay.
14 A. That's my point there.
15 Q. Okay. What you're talking about is a
16 tradesman warranty of a fix of someone else's work.
17 This isn't --
18 A. That --
19 Q. -- new to me.
20 A. That's right.
21 Q. Okay. This isn't an issue of Mike
22 McDonald --
23 A. No.
24 Q. -- honoring the warranty --
25 A. I would assume that -- if Mike McDonald was
0112
1 willing to undertake this, he would warranty what he
2 did.
3 Q. Okay.
4 A. That -- I -- I didn't think that -- I mean, I
5 would assume that would be worked out in whatever legal
6 settlement arrangement was made.
7 Q. Sure.
8 And you did not opine at any point with
9 respect to a manufacturer's position --
10 A. Oh, I think I did. I think I probably said,
11 "You're not going to have a manufacturer's warranty" --
12 Q. Okay.
13 A. -- "because this doesn't satisfy a
14 manufacturer's recommended details."
15 Q. Okay. With respect to your opinions in that
16 regard, what have you identified in your reports that
17 would -- that would steer me to that same conclusion?
18 A. Which conclusion? I think I said several.
19 Q. That the manufacturer would not warrant the
20 application of a liquid-applied membrane properly
21 lapped over a previously applied end than existing
22 dried elastomeric liquid-applied membrane?
23 A. Yeah. I am not positive that's in a written
24 report. I may have just stated it to my clients. I'm
25 not sure. I'd have to look and see. It might be in
0113
1 this report, but I don't -- I don't remember that.
2 Q. If I can't find any documentation from any
3 manufacturers addressing that point --
4 A. Maybe --
5 Q. Where do --
6 A. I'm sorry.
7 Q. Where do I go to test that opinion?
8 A. Manufacturers.
9 Q. Okay.
10 A. It's been my experience that manufacturers
11 are pretty persnickety about their aspect of the
12 warranty. They want the installer to follow all of
13 their recommended details and they don't want
14 deviations from that.
15 And in reality, I don't think the material is
16 the problem here. It's the workmanship and
17 installation issue that's the issue, the problem. And
18 you have to rely on the warranty provided by the
19 installer.
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20 Q. There is no concern that you've identified or
21 could identify with respect to the ability of a newly
22 applied section of elastomeric liquid-applied membrane.
23 It will bond to itself in the previous application most
24 times?
25 A. Well, there are times that -- you know,
0114
1 there's different chemistries of all of these
2 different --
3 Q. Certainly.
4 A. -- chemicals. You're going to have a
5 painting protocol and probably a primer.
6 Q. Certainly.
7 A. Okay?
8 And if you follow that protocol -- I'm not
9 telling you that the -- the manufacturer is worried
10 about the whole assembly.
11 Q. Right.
12 A. You might or might not be able to find a
13 manufacturer that would warrant that bond. That is so
14 dependent upon workmanship that I -- I think's it
15 just -- you're going to only have a warranty from the
16 installer.
17 Q. Well, but the way to find out is to consult
18 with the manufacturer, not just assume.
19 A. That's true.
20 Q. Okay.
21 (Discussion was held off the record.)
22 Q. (BY MR. ROUNSBORG) So back to my question,
23 and I'm not sure we got to the bottom of it. Not
24 suggesting that the conversation we didn't have wasn't
25 helpful to my understanding.
0115
1 But following that email, I don't find any
2 record of conversations among you, the HOA, and Mike
3 McDonald or anyone else on behalf of McDonald
4 Waterproofing with respect to addressing this
5 particular issue of further application of the
6 liquid-applied membrane.
7 A. Yeah. I think that -- there was a lot of
8 conversation and not much writing, I suspect.
9 Q. Okay.
10 A. I -- they -- I don't know that they were in a
11 position that they -- I don't know what they needed. I
12 don't ever recall them saying, "We need you to document
13 an opinion in writing here." I -- I don't recall that
14 ever --
15 Q. And I appreciate that. I guess I'm more
16 concerned about whether or not there were conversations
17 that actually took place following the submission of
18 this email to Mr. Wyse, with either Mr. Wyse or
19 Mr. McDonald or, for that matter, with anybody else,
20 about doing just this.
21 A. There were conversations. Documentation,
22 I -- I can't tell you. But I also do recommend you ask
23 Ken, because he might remember an email or a letter
24 that I'm not remembering.
25 Q. Okay. And if Mike McDonald were a party to
0116
1 those conversations, obviously, we could talk to him
2 about that, as well.
3 You just --
4 A. But --
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5 Q. -- don't have any recollection of
6 conversations with, let's just say, Mike McDonald --
7 A. Oh, no. The only -- I know the only time I
8 talked to Mike was at that walk-through of the
9 building.
10 Q. Okay. Now, at the time of the walk-through
11 of the building, did you discuss applying some more
12 liquid-applied membrane up the side of the wall to get
13 it up underneath the flashing?
14 A. I told him, "You can't just go from the slab
15 up. You've got to go down and lap" --
16 Q. So you did have a discussion about this --
17 A. Yes.
18 Q. -- this drawing? Which I'm going to mark now
19 as Exhibit 6.
20 A. Yeah.
21 (Deposition Exhibit 6 was marked.)
22 Q. (BY MR. ROUNSBORG) You didn't have a
23 discussion with him about this drawing, but you had a
24 discussion with him --
25 A. About that concept, yes.
0117
1 Q. Okay. About that concept.
2 And I think you said that Mike expressed --
3 I -- as I understood it, it was concern with the
4 removal of concrete, a portion of the topping slab,
5 rather than -- than the overall concept of, will this
6 extend the waterproofing properly lapped up underneath
7 the flashing?
8 A. I don't want to put words in his mouth
9 because I can't remember --
10 Q. Okay.
11 A. -- clearly, exactly what he said. I -- my --
12 my recollection of that day is that he didn't reject it
13 out of hand. He was going to think about it. He had
14 some concerns.
15 And it was later -- in fact, it was much
16 later, like this year -- that I think we saw things
17 written that, "I can't remove the concrete because the
18 membrane will come up, and that will bring up the
19 insulation." And there are things that I -- that --
20 that hadn't been expressed when we walked around --
21 Q. Okay.
22 A. -- that were raised as objections here during
23 the lawsuit proceedings.
24 Q. Okay.
25 (Perusing document.)
0118
1 All right. Just briefly, to shorten the
2 timeline for Ken, I hope, have you discussed with Ken
3 the considerations of the substitute of the one Zurn
4 drain for another and the conclusions I think we talked
5 about here today, that that reflects only a failure of
6 the process, based on the record before us, of the
7 approval for making of changes?
8 A. Yes. Ken and I have discussed that the --
9 the drain, which actually is right up here, has
10 (indicating) -- that hole there, that -- that will
11 deliver water from the membrane all right.
12 Q. Well, I guess -- I guess what I'm talking
13 about is, is that early on, there was a criticism of
14 McDonald for --
15 A. There was.
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16 Q. Right.
17 And the criticism now is not that it isn't an
18 appropriate two-stage drain, but the -- maybe it's not
19 even much of a criticism. It's just an acknowledgement
20 or an observation that typical construction practices
21 that would be involved with the substitution of a
22 product do not appear to have been followed in this
23 instance, but, otherwise, there is no criticism of the
24 drain itself or its installation by McDonald.
25 A. There -- there is -- there is not -- there
0119
1 had been a statement early on that there --
2 Q. Right.
3 A. -- was not an avenue for the lower level
4 water to get down the pipe. There is. So that
5 criticism is invalid.
6 Q. Uh-huh.
7 A. And -- and it is gone.
8 Now, it turns out that what was specified was
9 a fancier, better model. I don't think that matters.
10 All right. The only thing that matters about the
11 drains to me is that I don't think the membrane was
12 married to the drain. Either -- either case. In other
13 words, we -- we believe that to be the case in -- in
14 what Eagle did in items of rebuilding 3M. Our
15 demolition photos from 3M show different membrane but a
16 similar problem.
17 Q. Well --
18 A. The membrane wasn't married to the drain
19 there either.
20 And Borne had a very specific detail of
21 clamping an uncured neoprene gasket around the drain
22 and -- and then bonding the liquid-applied membrane to
23 that uncured neoprene. Wasn't there.
24 Q. On 3M?
25 A. On 3M.
0120
1 Q. On your observations of the --
2 A. Yes.
3 Q. -- demolition that was conducted by -- that
4 was also Eagle Construction.
5 A. No. I -- I don't remember who the contractor
6 doing 3M was.
7 Q. But I don't need to walk through the entire
8 process of what was specced and what was installed and
9 what failed and did not fail the flood test, et cetera,
10 et cetera, et cetera, with respect to Eagle's work. I
11 don't have to go through that --
12 A. You don't.
13 Q. -- with Ken?
14 A. No.
15 Q. All right. Nor the original criticism
16 concerning compliance with Borne documents as to the
17 sequencing of installation of the various materials
18 from the concrete slab up; that is, there was
19 originally a criticism that the -- the membrane went
20 all the way down to the slab instead of to the --
21 A. Tapered insulation.
22 Q. -- tapered insulation?
23 A. That's correct. Ken -- Ken and I are on
24 exactly the same page there.
25 Q. All right.
0121
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1 MR. ROUNSBORG: If you will all allow just a
2 brief moment, I think I'm ready to wrap up, if I
3 haven't already. So if we could just take a few.
4 Sound good?
5 THE DEPONENT: Sure.
6 (Break taken from 11:52 a.m. to 11:56 a.m.)
7 MR. ROUNSBORG: All right. I don't have
8 anything further.
9 And I thank you for your time.
10 THE DEPONENT: Thank you.
11 (Discussion was held off the record.)
12 MS. WEIGLER: I have a few --
13 MR. ROUNSBORG: Do you have some questions?
14 MS. WEIGLER: Yeah, I do have a few questions
15 for Jim.
16 THE DEPONENT: Yes.
17 EXAMINATION
18 BY MS. WEIGLER:
19 Q. You mentioned a few different times the
20 walk-through at the property with Mike McDonald.
21 A. Yes.
22 Q. Was there just that one walk-through, or did
23 you --
24 A. That's the only time I was with him, yes.
25 Q. Okay. At that walk-through, did you and Mike
0122
1 McDonald discuss the sealant work at all?
2 A. I don't recall that we actually did. I -- I
3 was aware a long time ago that McDonald had done the
4 sealing of the parapet cap by the Borne design. I
5 wasn't -- I just wasn't aware that -- that McDonald
6 also had a contract to redo window, door, and control
7 joint sealants throughout the project until this
8 summer.
9 Q. Okay. So for the part that you were aware of
10 about the parapet wall caps --
11 A. Yes.
12 Q. -- did you discuss that with Mike McDonald,
13 or do you recall discussing that during the
14 walk-through?
15 A. I -- I don't. Ken was along, too. He may
16 have. But I -- I don't recall discussing that with
17 him.
18 Q. Do you recall observing the parapet wall caps
19 if not --
20 A. Yes.
21 Q. -- discussing them with Mike McDonald?
22 A. You mean looking at them when -- on that
23 particular walk-through?
24 Q. Yes.
25 A. I don't recall.
0123
1 Q. And how about the sealant work?
2 A. No, I -- I don't -- I -- I remember that I
3 didn't pay any real attention to sealant work on that
4 walk-through.
5 Q. Okay.
6 MS. WEIGLER: I don't have any other
7 questions.
8 MR. ROUNSBORG: That doesn't generate any for
9 me. So we're done.
10 THE DEPONENT: Okay.
11 (Discussion was held off the record.)
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12 MR. ROUNSBORG: I didn't ask you if you
13 wanted to read and sign.
14 THE DEPONENT: I normally find that I -- I
15 need to look it over, so...
16 MR. ROUNSBORG: Okay.
17 THE DEPONENT: Yeah, I -- I should.
18 WHEREUPON, the within proceedings were
19 concluded at the approximate hour of 12:01 p.m. on the
20 27th day of August, 2014.
21
22
23
24
25
0124
1 CERTIFICATION OF DEPONENT
2
3 I, JAMES ROBERT HARRIS, P.E., do hereby
4 certify that I have read the above and foregoing
5 deposition and that the same is a true and accurate
6 transcription of my testimony, except for attached
7 amendments, if any.
8 Amendments attached ( ) Yes ( ) No
9
10
_________________________________________
11 JAMES ROBERT HARRIS, P.E.
12
13 The signature above of JAMES ROBERT HARRIS, P.E., was
14 subscribed and sworn to before me in the county of
15 ______________, state of Colorado, this ______ day of
16 _________________, 2014.
17
18
_________________________________________
19 Notary Public
My commission expires
20
21
22 Palace Lofts vs. McDonald, et al.
23 08/27/2014 SR
24
25
0125
1 REPORTER'S CERTIFICATE
2 STATE OF COLORADO )
) ss.
3 CITY AND COUNTY OF DENVER)
4 I, SUZANNE REID, Registered Professional
5 Reporter and Notary Public, State of Colorado, do
6 hereby certify that previous to the commencement of the
7 examination, the said JAMES ROBERT HARRIS, P.E. was
8 duly sworn by me to testify to the truth in relation to
9 the matters in controversy between the parties hereto;
10 that the said deposition was taken in machine shorthand
11 by me at the time and place aforesaid and was
12 thereafter reduced to typewritten form, consisting of
13 125 pages herein; that the foregoing is a true
14 transcript of the questions asked, testimony given, and
15 proceedings had. I further certify that I am not
16 employed by, related to, nor of counsel for any of the
17 parties herein, nor otherwise interested in the outcome
18 of this litigation.
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19 IN WITNESS WHEREOF, I have affixed my
20 signature and seal this 3rd day of September, 2014.
21 My commission expires August 13, 2016.
22
_____________________________________________
23 Suzanne Reid
Registered Professional Reporter
24
25
Page 53