IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR WALTON COUNTY, FLORIDA CIVIL DIVISION JOHN

P. CARROLL, Plaintiff, vs. CASE NO. 09CA002021

WATERSOUND BEACH COMMUNITY ASSOCIATION, INC., Florida Corporation, WATERCOLOR COMMUNITY ASSOCIATION, INC., Florida Corporation, DAVID LILIENTHAL, individually and as Director, MARY JOULE, SANDRA MATTESON, RONALD VOELKER, JOHN DOE, JANE DOE, and OTHER UNKNOWN CONSPIRATORS, Defendants. ___________________________________/ DEPOSITION OF: TAKEN AT THE INSTANCE OF: DATE: TIME: LOCATION: DREW ROBERTSON The Plaintiff June 21, 2011 Commenced at 3:05 p.m. Concluded at 4:05 p.m. Dunlap & Shipman 2065 Thomasville Road Suite 102 Tallahassee, Florida JO LANGSTON Registered Professional Reporter ACCURATE STENOTYPE REPORTERS, INC. 2894 REMINGTON GREEN LANE TALLAHASSEE, FLORIDA 32308 (850)878-2221

REPORTED BY:

APPEARANCES:

REPRESENTING THE PLAINTIFF:

(Appearing pro se)

JOHN CARROLL Box 613524 WaterSound, Florida 32461

REPRESENTING THE DEFENDANT WATERSOUND, LILIENTHAL, JOULE, MATTESON:

(Appearing via telephone)

CHRISTOPHER GEORGE, ESQUIRE Scott, Sullivan, Streetman & Fox, P.C. 56 St. Joseph Street Regions Bank Building, 10th Floor Mobile, Alabama 36602

REPRESENTING THE DEFENDANT WATERCOLOR: REBEKAH SMITH, ESQUIRE Dunlap & Shipman 2065 Thomasville Road, Suite 102
Tallahassee, Florida 32308

ACCURATE STENOTYPE REPORTERS, INC.

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CERTIFICATE OF OATH CERTIFICATE OF REPORTER ERRATA SHEET NO. DESCRIPTION

INDEX WITNESS DREW ROBERTSON Direct Examination by Mr. Carroll Cross-Examination by Mr. George Redirect Examination by Mr. Carroll 4 33 38 PAGE

INDEX OF EXHIBITS
PAGE

1 2 3 4 6

Soil boring report Photographs E-mail dated 2/2/2010 Three photographs Material Safety Data Sheet

7 9 12 21 28

41 42 43

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P R O C E E D I N G S The following deposition of DREW ROBERTSON was taken on oral examination, pursuant to notice, for purposes of discovery, for use as evidence, and for such other uses and purposes as may be permitted by the applicable and governing rules. Reading and signing of the deposition transcript by the witness is not waived. * * *

THE COURT REPORTER: Would you raise your right hand, please. Do you swear or affirm that the testimony that you are about to give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: Yes. WHEREUPON, DREW ROBERTSON the witness herein, having been first duly sworn, was examined and testified as follows: MR. GEORGE: I just wanted to object on the record, John, to any of his file that he brought with him, I'm going to object to introducing any of that into evidence, except for the parts that you've identified on the exhibit list you've already given us. There are some parts of what should be in his ACCURATE STENOTYPE REPORTERS, INC.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for?

file that you've identified as an exhibit. The rest of what's in his file we object to on the grounds it hasn't been identified as an exhibit in a timely manner. MR. CARROLL: Okay. THE WITNESS: Can I ask, who is on the phone? MR. GEORGE: I'm sorry. This is Chris George. We represent WaterSound, David Lilienthal, Sandra Matteson and Mary Joule. THE WITNESS: Thank you. MR. GEORGE: Yes, sir. DIRECT EXAMINATION BY MR. CARROLL: Q please. A Q A Q Drew Robertson. And are you a professional geologist? I am. And what's the name of the firm that you work Could you state your name for the record,

A Q

Soils, Sediment & Subsurface. In order to be a geologist, do you have to be

licensed in Florida? A Q Yes. Are you a licensed geologist? ACCURATE STENOTYPE REPORTERS, INC.

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A Q

Yes. And if you would, could you tell me

approximately when you obtained your license? A I think I got my Florida license in probably

2002, 2003, somewhere in there. Q Did you have to have special training to get

your license? A Q A Yes. And what was that training like? You had to have a four-year degree from an

accredited, board-accredited university. And then I had a master's degree on top of that, so it took down some of my professional time, and you have to have five years professional time, certified by either a professional engineer or a professional geologist. Q And that was all before you obtained your

license in 2002? A Q Yes. Do you think you could quantify how much

experience you have then? A I've been doing either consulting work or work

with DEP, with the State, or in the private sector since 1999. Q Okay. The soil study or the -- would you call

that a soil study, or what did you do out there at ACCURATE STENOTYPE REPORTERS, INC.

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WaterSound Beach? A I was pretty much contacted just to pretty much

just identify the underlying soil types or what was present at the test locations. Q Is that kind of a test or analysis something

that's typical of a geologist? A Yes. (Plaintiff's Exhibit No. 1 was marked.) MR. CARROLL: I'll go ahead and mark this first one as Exhibit 1. I'm just going to call this P-1. That will be Plaintiff's 1. And, Chris, so that you know what I'm showing him, I'm actually showing him the soil boring report. And it's on our exhibit list. And I'll just ask you -MR. GEORGE: You're talking about your Exhibit 331, John? MR. CARROLL: I don't know the number off the top of my head, Chris. MR. GEORGE: But it's the soil boring report, it has six different borings, and it's dated February 2, 2010? MR. CARROLL: Let me see what that date was on there. I think that's right. THE WITNESS: Yes. MR. GEORGE: Okay. ACCURATE STENOTYPE REPORTERS, INC.

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MR. CARROLL: I think I'm going to ask Drew to take a couple of minutes and just familiarize himself so he can identify this report here. THE WITNESS: (Views document.) BY MR. CARROLL: Q Does that look to be the report that you

prepared that day? A Q report? A My client was Bernadette Halloran, with -- I Yes. And if I could, who hired you to perform that

forget the -- WaterSound Community or Property, Properties, whatever it was. Q A How did Bernadette come to find you? I did work for -- I'm a partner in another firm

called Black Hawk Engineering, and we are the engineers of record, I guess you'd say, for the St. George Island Plantation. So when she was employed there, I worked with her quite a bit on roadways, and we redid the airport and some other stuff. Q Was Bernadette the property manager there at

St. George Plantation? A Q Yes. Did you know her for quite a while? Had you

done a lot of work for her? ACCURATE STENOTYPE REPORTERS, INC.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 day?

I knew her, let's see, since around probably

2007, somewhere like that, but I just knew her professionally. She was our client. She was our kind of liaison to the multiple boards at the St. George Island Plantation, so we would deal with her kind of and feed through to the boards. She was kind of our point of contact down there. Q Do you remember much about the conditions that

A Q A

At WaterSound? Yes, at WaterSound. I do. When I look back over the report, I

mean, I don't just -- you know, I've done a lot of work since then. This was in February of 2010. But I do remember drilling around the electrical transformer and on the -- I guess that would be the west side of your home, I think along the main roadway that goes over to that pond, I think. (Plaintiff's Exhibit No. 2 was marked.) MR. CARROLL: Chris, I'm going to show Drew a couple of pictures that were exhibits from the Rosenheim deposition, and I'm going to call these Plaintiff's 2. I'm just going to ask Drew, if he could, does this look like the home that was at the location? ACCURATE STENOTYPE REPORTERS, INC.

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MR. GEORGE: John, are those photographs on your list of trial exhibits? MR. CARROLL: Yes. The Rosenheim deposition and all the exhibits to it are on my list of trial exhibits. MR. GEORGE: Okay. THE WITNESS: Yes. I remember this feature quite a bit. We were working right over in here. MR. CARROLL: That's what I was going to do. Chris, you don't have the benefit of being here, but I'm going to try and ask Drew to look at his soil boring report. And then, if he could, I'll give him a magic marker and ask him to just highlight the areas on these photos of Lot 24 where he thinks we may have conducted the study. If you'd take this magic marker. MR. GEORGE: Is there a boring location figure attached to his soil borings report? MR. CARROLL: Yeah. I think the problem is the sole boring report is out of scale. And it might be better for everybody in the long run to have him authenticate a little bit on these actual photos. BY MR. CARROLL: Q A If you could, try and -It's too bad it's not an aerial looking down. ACCURATE STENOTYPE REPORTERS, INC.

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It was over in here, was the primary area. And then we drilled somewhere, just at one boring back here as well. Q We were talking about a transformer, I think,

and I wonder if that transformer can be seen near this stop sign or not in this photo. A That's hard to tell. It's generally right

in -- somewhere in this area. Q You can go ahead and just put a circle on there

where you think it was, best that you can. A Q It's down here somewhere. And I'll just have you just put a number one by

the first circle you made and a number two by the second. On your soil boring report, there was one location that had five borings done and another one that had just one. Which one of those circles had the five borings done by it? A Q there? A Q Just one. Now, what I'm going to ask you is, if you Number one. And number two, how many borings did you do

could, right after you left that day -- well, let me just ask you, if there's a way for you to know, do you know what day you actually conducted that study? A I could look on my phone and probably find out. ACCURATE STENOTYPE REPORTERS, INC.

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Q A Q A Q the case.

Okay. You're talking about the actual like weekday? I'm sorry. The date, that's all I mean. February 2nd. Okay. There's an e-mail that was sent out in

MR. CARROLL: And, Chris, I don't have the exhibit number, but it was part of David Lilienthal, Mary Rosenheim, and I believe Jack Luchese's depositions, which were all exhibits to the case. BY MR. CARROLL: Q I wrote an e-mail or I purport that I wrote an

e-mail on February 2nd, but I didn't write it until 3:30 in the afternoon. Do you know if you were at this site before 3:30 or after 3:30 in the afternoon? A Q I was there before. If you could, just glance over this e-mail.

We'll just call it Plaintiff's 3. I wanted to see if that's an accurate representation of what happened out there that day. (Plaintiff's Exhibit No. 3 was marked.) MR. GEORGE: John, can you tell me the date and the time it was sent and who it was from and who it's to? MR. CARROLL: Sure. It was on February 2nd, ACCURATE STENOTYPE REPORTERS, INC.

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2010, at 3:30 in the afternoon, and it was to you. It was to Jack Luchese and to Gary at Dunlap, Shipman. THE WITNESS: (Views document.) BY MR. CARROLL: Q That e-mail that you just read, do you know if

that's a fairly accurate assessment of what you found out there that day? A Well, I mean, some of the terms I'm not real

sure, you know, these binders that you're talking about, "lead me to believe that cured emulsion or binder." It seems logical. And I'm not sure, with pressure-treated wood and other materials, a wash-out or lay-down zone, you know, I'm not exactly sure what you meant there. I can say, on the stuff I encountered, you know, six inches of asphalt, in some spots three inches, areas with limestone gravel, buried roots and limbs one inch in diameter, that stuff is clearly a fill material of some sort. Whether it was smoothed out or just dumped, I don't know. Q That's a good question to talk about now. That

material that you found in your soil borings, is it naturally occurring in that area? A Q No. Is it naturally occurring anywhere, to find ACCURATE STENOTYPE REPORTERS, INC.

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that kind of stuff under -A No. Normally, you -- organic material like

this, what I was calling peat-type material, that is very common in coastal areas where either the area at one time was filled and that's the old organic mat or a marsh type sediment or where sea level through time has transgressed, as we call it, and the beach kind of horizon overlays the old peat horizon. That's what we call transgression sequence. But the limestone gravel, you don't get limestone gravel lenses in that coastal environment. What we call the classic wedge there at the coast, which is an unconsolidated sediment, it doesn't lend itself to have limestone there. And asphalt, definitely not. That's a man-made product. Q While we're talking about the limestone on

there, where is that classically found; do you know? A Limestone in that area should be mined --

probably the closest mine I can think of off the top of my head would be somewhere up in the uplands, Marianna, I-10 corridor, or probably somewhere from Carrabelle. Q That's a pretty good ways from WaterSound. Do

you know about how far that it from WaterSound? A As a crow flies, Carrabelle to WaterSound is a

hundred miles probably. I'm not real familiar with the ACCURATE STENOTYPE REPORTERS, INC.

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limestone pits north of the Destin area. There's definitely limestone at depth up there. Marianna Caverns is limestone. Q We were talking about just a second ago about

the word "pits" or "mines." Does that classically occur within the first three feet of the surface, or is it at a deeper depth? A Well, a mine, typically your limestone mines

are not -- typically you don't get limestone crushed up in gravel like this. This is what street guys call -this would be lime rock. This is crushed up aggregate. Limestone comes out of the ground, either you blast it or you pound it, and you get big boulders. And then you mechanically break the boulders down to the size that you need. So you really don't get -- limestone doesn't weather like granitic rock or anything, where you get little pea gravel or anything. If it was rolling around in a stream, it would just degrade into nothing. Q Okay. What about the asphalt that you

mentioned in the report, do you remember picking any of it up and breaking it that day? A Q I don't recall. What I'm wondering specifically is do you

remember the presence or lack of presence of aggregate in that asphalt material? ACCURATE STENOTYPE REPORTERS, INC.

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I do, but I've just read your e-mail that

stated that, and I think I recall you and I talking about that, that it looked more like it was the slag or kind of like cold patch, but I don't truly remember that off the top of my head. I don't know if it's just been refreshed from this or not. Q That's fair. If it had aggregate in it, could

you break it with your hands; do you know? A Asphalt should not be -- you should not be able

to break the aggregate in asphalt with your hand. It should be a granitic rock, probably out of southern Alabama, somewhere like that. Q Do you know what the ingredients are that make

asphalt or any of the ingredients from asphalt? A Yes. You have an aggregate. You have some

sand. You have the emulsifiers and the kind of glue, if you want to say, which is the tar and petroleum constituents. And it kind of binds that in so it's what we call a flexible pavement. But it's kind of a mixture of sands and kind of a coarse fraction of sediment, and then the clean sand is aggregate, and then your asphalt, your bituminous materials. Q We were just talking about the glue, I guess

you said. And I'm just wondering, do geologists know about that kind of stuff in their business? Is that ACCURATE STENOTYPE REPORTERS, INC.

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something that you need to understand or be able to identify? A We're not, per se, in school trained. Roadway

construction and the products to make roadways are not in my formal education. I've been doing geotech work for most of my time, so just from working with road engineers and being affiliated with a structural and civil company that designs roads, I know what I need to. Q That's a great time to bring it up. What does

a geologist like yourself normally do? What's your function as your job? A Most times it's to conduct testing. Either we

call it materials testing on roads, asphalt, concrete, sieve samples, run plasticity limits on samples to tell kind of what state the soils are in, and really anything that's dealing with subsurface. And you can cross over. There's groundwater, and there's all kinds of things, environmental contaminant plumes. Q Do geologists interpret or order for any reason

compaction tests on soil? A Q Yes. And what's a classic, I guess you'd say --

we're talking about in residential construction anyway. Why would somebody normally order a compaction test on soil in residential construction? ACCURATE STENOTYPE REPORTERS, INC.

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Well, normally, any time that you have -- I

just know it by code. And within the Florida building code it states, anywhere that there has been known fill or fill over 18 inches, you're required to get compaction tests, or anything where the building inspector deems that they know that you need compaction tests. And all of our structural drawings -- and we do compaction tests -- Leon County requires them for every slab, every pad, under every structure that's got fill. Q What's the concern if somebody builds a home on

uncompacted soil? A The home will differentially settle. The soils

will compact with time. And since you now have a house sitting on that soil, it will subside as the soils subside. Q I understand. As a geologist, have you ever

heard the term "polycyclic aromatic hydrocarbons"? A Q A Q A Yes. Commonly I guess they're known as PAHs? Uh-huh (indicating affirmatively). Can you describe what a PAH is? PAH is -- I used to do a lot of environmental

work. And PAHs are the heavy constituents when you run a mass spectrometer on petroleum constituents, and they're the constituents that -- on a mass spectrometer, they're ACCURATE STENOTYPE REPORTERS, INC.

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on the heavy side of the curve. They're a product of diesel fuels, heavy oil fuels. At least in the environmental world, that's the way I know them. I'm sure there are other chemicals that they are derived from. They're a particular, not element, but the carbon chain that makes them, they're like a species. They're their own piece, but they can be mixed in with a whole bunch of other stuff to form fuel. Q Do you know if PAHs are considered a

carcinogen? A PAHs, there's many -- there's a couple

different elements, or not elements, there's a couple different chemicals that are within the PAH classification. I do think they are. I'm not sure. Q I'm going to slightly change my line of

questioning. I just wondered, are PAHs a byproduct or are they evident in the binders or emulsions that we talked about to form asphalt? And when I say the emulsions, I'm talking about just the petroleum-based ones. A Q I'm not sure. Do you know anything about the effects of PAHs

reaching the groundwater? Is there any concern about that amongst geologists, or is it something that's ACCURATE STENOTYPE REPORTERS, INC.

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usually studied? A Q A Q Uh-huh (indicating affirmatively). It is? Uh-huh (indicating affirmatively). What's the concern? Why would somebody look

into that type of thing? A Well, most times your PAHs are within the --

DEP has a certain -- in Florida at least, DEP has a certain criteria. When you expect a site to have contamination, you usually fall back on the DEP guidelines that you test for VOCs, PAHs, some other -they've got stuff called the FL-PRO, the Florida Petroleum Range Organics. And PAHs are part of that. So I don't know that table out of the Florida Statutes off the top of my head, but there's a reason we're looking for PAHs. And that would have to mean there's a threshold either established by EPA or by DEP that they don't want you to exceed. That's my thought, what I would think is the reason we look for it. Q That's very fair. MR. CARROLL: Chris, I'm going to show Drew Exhibit L to the second amended complaint, and that is somewhere around P-36, Plaintiff's 36, Plaintiff's 236 rather. I'm going to call it for purposes of this deposition Plaintiff's 4. ACCURATE STENOTYPE REPORTERS, INC.

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(Plaintiff's Exhibit No. 4 was marked.) BY MR. CARROLL: Q And I just wanted to let you take a second and

familiarize yourself with those photos. I think there's three of them there. A Q Okay. (Views document.) I'm going to actually letter them. I'll go

with A, B and C, just to make the record clear. I don't know if I'm writing upside down or not. In photo C, which I think is page three of that exhibit, I allege that that's a photo of the footing line at Lot 24. And I'm just wondering if you notice anything peculiar about the soil in that photo, in your opinion, as a geologist. MR. GEORGE: Object to form. THE WITNESS: What was that? BY MR. CARROLL: Q A He just objected to form. You can answer. It looks like to me there's -- if that's a

normal footer, I'm expecting it to be 16 inches deep maybe. Maybe that's a little deeper, 24 inches. And there's three different very distinct soil layers, which I wouldn't expect. Q When you say that you wouldn't expect, is that

a natural occurrence near the coastline, to see something like that in a footing path? ACCURATE STENOTYPE REPORTERS, INC.

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A Q

I would not expect it. And I guess, just for record purposes, can you

tell me why you wouldn't expect to see that? A Well, when you get -- these are what we call

unconformities here and here. These differences between the sediment packages indicate some sort of big environmental change. If they were deposited naturally, there would be something shifted and changed significantly to get this white band, and then something changed again significantly to get this reddish brown band above it. Typically, you don't get that. You know, maybe at the end of a barrier island or, you know, where the island is moving around a bit, but that's -- just working at the coast, I wouldn't expect to see that. Q For Chris' purposes anyway and for the record,

what we're talking about are these more or less three distinct stripes of soil that you see in that photo. Is that correct? A Q Yes. I think I heard you say you expect to see that

from some significant -- what was the word you said? A You'd expect an environmental change, some sort

of depositional environment change to get -- if that was truly deposited sediment, you would have to have either ACCURATE STENOTYPE REPORTERS, INC.

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some sort of catastrophic landslide or something to get a transition that sharp, or say like a huge hurricane that blasted over the coast and we got a new bit of sediment down and then the coast came back to its old spot and we got new deposition on top of that, something pretty significant. Q Let me go ahead and ask you then, do you know

of any satellite imagery programs where somebody might go to refer and look at lots like this one to see if there were any major events over time? A It's been a while. I did my master's work on

coastal geology at the tip of Cumberland Island. And I used stuff from -- because I was mapping out storms and sediment packages like this on a tip of an island. And I'm pretty sure DEP has historical hurricane paths to like the 1800s. And then satellite imagery, DOT has a whole swath of aerial coverage back to the fifties. And I'd have to look. I can't recall where else I pulled data from. Q What are some of the other ways that one would

explain how soil could come to look like that? Are there any other ways? A Well, without seeing the soil and being able to

see the textures or anything in it, because to me, this looks like -- you know, it's hard to tell in these ACCURATE STENOTYPE REPORTERS, INC.

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photos -- but fill, fill material. Q When we talk about fill, is it common in new

developments, for the horizontal development of the neighborhood, for them to actually change the grade for certain reasons? A Q A Yes. And they'll do that by bringing in fill? Either fill or it can be off-site fill, it can

be on-site fill. You know, value-engineering-wise you try to what we call balance a site, where you just shift. If you're cutting over here, you're filling over here, so that you're not hauling off material or anything. Q I understand. That makes good sense. In the

first two photographs, they're called A and B -- let me see if I can help in any way. There are some things that I allege that I found in that same footing path, and I just wondered, do you know if that's a natural occurrence, or could that be man-made? A Well, to me, from the photographs, especially

in A, it looks like there's a two-by-four facing me. So that's -- at least that two-by-four and it looks like these concrete blocks would be man-made material. Q Let me ask this question. There's a program

that's called Google Earth. Have you ever explored that at all? ACCURATE STENOTYPE REPORTERS, INC.

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A Q A Q

Yes. Do you know if it has satellite imagery on it? Yes. Do you know if you can slide a slide on there

to see different dates, satellite imagery from different points in time? A I'm fairly sure Google Earth lets you rotate

into older imagery. I'm fairly sure. I know DOT you can. Q used for? A Well, most of their stuff isn't satellite. Why does DOT save satellite imagery? What's it

It's aerial photography taken from just a camera hanging out of the airplane, to simplify it. They use it a lot for road alignments, looking at best areas to put roads, because even if you have a surveyor on the ground, sometimes you can look at the imagery and see a wetland pocket that you would have to go around, because any crossing like that is extra cost, retaining walls, bridges, remediation, et cetera. So they do it for alignments, for historical data, looking at floods. We use them for flood stuff a lot. Q Is there any way for somebody to know about

some of the topography just by looking at those photos? A Yes, you can. It's called a -- if you have two ACCURATE STENOTYPE REPORTERS, INC.

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of the same photos side by side, there's a thing called a stereoscope, where you put these glasses on over a fixed kind of plane table, and you can look at them, and it gives you some sort of topographic relief out of those. Google Earth you can. Q Pretty neat. I've never heard of that one.

What about something a little more simple? Are there usual assumptions that can be made when you see actual wetlands in something, that helps you determine the topography there -A Q A Q ground? A Lower ground. MR. CARROLL: Chris, I'm going to show Drew a couple of things that are in the photo. And they were exhibits to Mary Rosenheim's and Bridget Precise's. BY MR. CARROLL: Q We have an exhibit here that's called Yes. -- in relation to the surroundings? Uh-huh (indicating affirmatively). Are wetlands normally higher ground or lower

Plaintiff's Exhibit 5, and I just wondered if that's something that's naturally occurring along the beach underground. ACCURATE STENOTYPE REPORTERS, INC.

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A Q

No, I would not expect that. This rod here, is that something that's

naturally occurring along the coast underground? A rebar. Q A Q A Q Does rebar deteriorate when it's underground? Yes. Does it oxidize or anything? Yes. What about this one? It's called Plaintiff's No. It looks like a number six or seven bar,

Exhibit 4, and I think I'm seeing it in photograph B, but I just wondered if you could identify what you think that is. A It looks like some sort of rivet system, where

these star screws come out maybe and the rivet pops off and you use it for -Q Have you ever come in contact with a device

that's called a powder actuated fastener? A Q A Yes. Do you know what a power actuated fastener is? Yeah. It's like for attaching your bottom wall

plate to a floor, something like that, to a slab. Q Why would somebody use a powder actuated

fastener to fasten something to a sill, I think you said? A Well, most times it's so you don't have to ACCURATE STENOTYPE REPORTERS, INC.

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pilot drill a hole and put, you know, a big screw or something down through a plate. You can just shoot it in. These are like little .22 cartridges. Q Well, that's what I was going to ask you is,

when they say powder actuated, what is the powder? A If I recall, I think it's gun powder. I think

it's just -- it's got a primer and there's powder. Once you detonate the primer, the powder explodes. And since it's contained in a casing, it pushes the nail head out. Q This document here is going to be the next

exhibit. Unfortunately, I don't remember what number we're on. I think we were on 4. A I think 4. (Plaintiff's Exhibit No. 6 was marked.) Q I'm going to call this Plaintiff's 6, just so

we don't accidentally duplicate. You described what a powder actuated fastener was without looking at anything. Is that the safety data sheet for a powder actuated fastener? A Q Yes. What is a safety data sheet or a material safe

handling sheet? A It's a standardized MSD sheet. It's a

standardized sheet that tells anybody who looks at it, employees, employers, anybody, the chemical makeup of the ACCURATE STENOTYPE REPORTERS, INC.

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constituent, any kind of health safety issues, what you have to do if you get it on you, just kind of a general sheet over any kind of applicable item that may go on with the material. Q Let me just ask you about that. I guess in the

very beginning it says ingredients. And I just wondered, the ingredients that are listed there, do you recognize any of those terms from geology? A I mean, through chemistry classes, I've seen

them. I couldn't tell you their elements or anything. Nitroglycerin, it's pretty obvious what it is. Q I'm going to skip down to this and just see,

there's probably a hundred ways to dispose of things like this. And I just wondered if there are any listed on here. Let's see. Here it is, waste disposal. Under the waste disposal section there, I want you to just familiarize yourself with that. A Q A Okay. (Views document.) Is it okay to bury these to dispose of them? I would not think so, if these are still live

rounds, because it says misfires, and misfire would be a round that did not ignite. No. They're supposed to -I'm just reading this. Disposal method is in a burner specifically designed to destroy ammunition. Q Well, in your experience anyway, how many cases ACCURATE STENOTYPE REPORTERS, INC.

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of these is it okay to bury before you need to do some kind of remediation? MR. GEORGE: Object to form. BY MR. CARROLL: Q A You can answer, if you want to, or if you -I don't really -- I don't know the life cycle

of those, how they leak. I don't know enough about them to answer that logically. Q Would you need to have information contained on

one of these material data safety sheets in order to make that determination? A If I knew the -- the only way I know right now

to quantify how many you would need to leak to cause an issue, I'd need to see how many parts per million or parts per billion of the nitroglycerin, say, is in them, and then see how much is allowed as target thresholds in the Florida Statutes. And once you added up enough of them to exceed that, I could tell you the number. Q That makes good sense. Go back to the

beginning here. I think you said that Bernadette Halloran was the one who hired you. Did you talk to anybody else before you came to the site? Or I should say anyone associated with WaterSound anyway. A Q No, not that I recall. Did Bernadette tell you specifically to look ACCURATE STENOTYPE REPORTERS, INC.

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for things like powder actuated fasteners? A Q No. There is something I had a question on on your

report. I want to make sure I'm understanding this. There's something on here that I'm seeing. I guess it says, on page one of your report, let's see. I see this word "roadway base material." Is that what we were talking about before, the limestone and things like that? A Q Yes. And then there's something that says "small

pockets of dark brown organic rich material." Do you know what those were made up of? A No, because I didn't -- wasn't requested to

actually break those down. But more than likely it was leaf litter, root balls. I mean, most times when we hit an organic pocket or zone, it's usually sticks, twigs, leaves, grass. Q The day that we went there, do you remember

about how many people were there that day? A I recall I got to the site, I got to the

entrance, met Bernadette, came down, met you. And I think Bernadette, you and I pretty much were there drilling, and then some other gentleman showed up towards the end. Q When we talk about this other gentleman, do you ACCURATE STENOTYPE REPORTERS, INC.

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remember a man coming that had silver or gray-colored hair, towards the end? A I think so. I think he drove a big black

Suburban or big -Q That was going to be my next question, but you

answered it for me. Do you remember if that gentleman took any photos when he was there? A Q A Q Yes. Did he take photos? Yes. I've got to ask. Was there anything that you

pulled out of the ground in your soil samples that was not naturally occurring there? A Was there anything I pulled out of the ground

in my soil samples that was not naturally occurring? Q A Q Yes. Yes. Okay. Did you take more than sand and rocks

out of the ground that day when you did your soil borings? A Yes. MR. CARROLL: Well, that's all I have. Thanks a lot. CROSS-EXAMINATION BY MR. GEORGE: ACCURATE STENOTYPE REPORTERS, INC.

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Q A Q okay? A Q

I have a few. Can you hear me okay? I'm sorry. Can you repeat that? I said I have a few questions. Can you hear me

Yes, sir. Let me ask you, on this boring location figure

that's part of your borings report -A Q Yes, sir. -- can you tell me if those boring locations

were on the lot on which Mr. Carroll was building a house or on the common area immediately adjacent to the lot on which he was building a house? A I don't know if there were lot survey flags

when I was there, and I don't recall being more than a few feet away from the electrical transformer, but I don't know, to tell you the truth. I don't recall seeing survey flags. Q I'm looking at the letter dated February 9,

2010, from you to Bernadette Halloran. A Yes. MR. GEORGE: John, it's marked page 862 in your production. MR. CARROLL: Okay. BY MR. GEORGE: Q And the last sentence in the second paragraph ACCURATE STENOTYPE REPORTERS, INC.

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says that when you arrived, the owner, John Carroll, was present to determine the boring locations. Did John Carroll, in fact, pick the locations on which you took your bore samples? A I think that Mr. Carroll pointed out areas, and

then I just drilled holes in multiple areas. Q A But in the areas that he pointed out? I assume so, if I put that in the report. I

don't recall. Bernadette was there with me, and I don't really recall. Q But you wouldn't have put that in your report

if it wasn't true, would you? A Q No, sir. At any time while you were out there that day

did Mr. Carroll mentioned to you any concerns he had about the possibility of there being powder actuated fasteners in the subsurface soil at that lot? A Q No, sir, not that I recall. While you were out there, did Mr. Carroll

mention having any concerns about there being PAHs or any kind of cancer-causing material in the subsurface soil on that lot? A Q Not that I recall. If you look at the -- I guess you'd call this

your boring sheet that I think John marked as Exhibit 1, ACCURATE STENOTYPE REPORTERS, INC.

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where it's got the boring numbers and the soil descriptions? A Q A Q Yes, sir. Do you have that in front of you? Yes, sir. On that first boring, it looks like you didn't

find any asphalt or foreign material; is that right? A Q That's right. On the second one, the second boring, in the

first six inches you found some asphalt; is that right? A Q Yes, sir. Beyond that, what you found was a little bit of

gravel and a few long roots and that's it; is that correct? A Q Yes, sir. And the same would be true of your third and

fourth borings; is that right? A Well, the fourth boring I had some one-inch

limbs down deeper. And the third boring had a real organic-rich like peat material in between -- up under that asphalt and gravel, as you said. Q I see that. And then on the sixth boring, the

only thing you found were a few small roots; is that right? A Yes, sir. ACCURATE STENOTYPE REPORTERS, INC.

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Would you say that based on your bore samples,

there was an excessive amount of debris or fill material in the soil on this lot? A Debris, I don't -- define debris. Like

anthropogenic debris? Q Well, just anything that you would characterize

as debris. What do you call debris? A Most debris, you know, when we are telling

somebody to remove debris, it's usually -- we usually consider it anthropogenic material of some sort, trash, construction stuff. In this case, the only true debris, if you define it that way, that I found would be the asphalt and limestone gravel. I didn't note -- let me look. I don't think I recalled hitting trash in my borings. Q Well, did you find anything that would cause

you to recommend the removal or any kind of remediation be done before you build on that lot? A Before I would -- if I was the testing engineer

on this or testing geologist, if this was running through my firm, I would recommend some bearing values on what I thought was fill material, to verify that it was placed in correctly. Q And assuming those bearing tests turned out

okay, then you wouldn't recommend any further action? ACCURATE STENOTYPE REPORTERS, INC.

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Not on the material I found in the -- well, no.

The area where you've hit the organic material, like in B-3, 30 to 36 inches, you're not allowed, per code, to have an organic material within a certain depth of your foundation. If you do, you have to design a foundation to compensate for it. So like that one, I would recommend at least cutting that material out to 36 inches and backfilling with properly compacted material. Q A Q A Q A Did you recommend that to Mr. Carroll? No, I did not. Did you recommend that to Ms. Halloran? No, I did not. Why not? My task, when I talked with Bernadette, was to

report what I found. Q Okay. Did Mr. Carroll ever ask you if he

needed to do any remedial work, as far as the subsurface soil was concerned? A I don't recall Mr. Carroll asking me much of

anything, to be honest. When I got to the site, they pointed around to an area, Bernadette and Mr. Carroll, and if I recall, they kind of talked and I drilled. I don't recall much conversation, to be honest. I didn't really even know what I was supposed to be doing ACCURATE STENOTYPE REPORTERS, INC.

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there except just drilling holes. MR. GEORGE: I think that's all I have. I appreciate your time. THE WITNESS: Okay. Thank you very much. MR. CARROLL: Chris, I'll briefly redirect on those questions. REDIRECT EXAMINATION BY MR. CARROLL: Q We talked about what you were hired to do. And

I think you said to both Chris and I that you were essentially hired to conduct soil borings and tell Bernadette what you found. MR. GEORGE: Object to form. BY MR. CARROLL: Q Is that an accurate statement? MR. GEORGE: Same objection. BY MR. CARROLL: Q A You can still answer. Yes. If I recall correctly, the task I had was

just to drill some borings down to either groundwater -I can't remember what we established, the depth. They were just shallow borings to just determine the underlying materials and to report on that, was pretty much my task. Q And in your experience, could you tell me if ACCURATE STENOTYPE REPORTERS, INC.

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you could grow plants in that material in the first 12 inches, I guess? MR. GEORGE: Object to form. I think you're going beyond the redirect, John. So I'm going to object on that ground as well. BY MR. CARROLL: Q A That's okay. You can go ahead and answer that. Obviously, in the areas where you've got from

surface to six inches or three inches asphalt, no. I mean, obviously you'd have to remove that. But I assume, with the sand, it looks like you've got sand mostly to two feet, until you hit limestone gravel. So I assume you could. Obviously, sand you've got watering issues with sand. Q If Bernadette had told you that there was

construction debris discovered within a few feet of those soil boring sites, would you have recommended any remediation in that area? MR. GEORGE: Object to form, and I'm objecting on the grounds you're going beyond the scope of redirect, John. BY MR. CARROLL: Q A That's okay. You can go ahead and answer. If somebody would have asked me or if there

was -- if somebody would have asked me if something ACCURATE STENOTYPE REPORTERS, INC.

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needed to be done to remove a bunch of construction debris from a site or how to do it, I would obviously say what to do. In this instance, I don't recall being asked that. And unless there was some issue of public safety or something that I'm bound to ethically, for me to say, it was beyond my scope. I was told to do this bit and get gone, and I did. Q The last question I have relates to a question

that Chris asked about one of these sites, and it was where we talked about limbs. Where did I see that on this list? Brown moist sand with one-inch diameter roots, how deep below the ground was that, that you discovered that? A Q ground? MR. GEORGE: Object to form. THE WITNESS: No. MR. CARROLL: That's all I have. Thanks a lot. MR. GEORGE: I don't have anything else. (Whereupon, the deposition was concluded at 4:05 p.m.) Thirty to 36 inches, in B-4. Is it normal to find a limb 36 inches below the

ACCURATE STENOTYPE REPORTERS, INC.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ACCURATE STENOTYPE REPORTERS, INC. _______________________________ JO LANGSTON, RPR Notary Public 1-800-934-9090 850-878-2221 WITNESS my hand and official seal this 22nd day of June 2011. I, the undersigned authority, certify that said designated witness personally appeared before me and was duly sworn. STATE OF FLORIDA COUNTY OF LEON ) ) CERTIFICATE OF OATH

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF FLORIDA COUNTY OF LEON

CERTIFICATE OF REPORTER

) )

I, JO LANGSTON, Registered Professional Reporter, certify that the foregoing proceedings were taken before me at the time and place therein designated; that my shorthand notes were thereafter translated under my supervision; and the foregoing pages number 1 through 40 are a true and correct record of the aforesaid proceedings.

I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action.

DATED this 22nd day of June 2011.

_____________________________ JO LANGSTON, Registered Professional Reporter 1-800-934-9090 850-828-2221

ACCURATE STENOTYPE REPORTERS, INC.

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_______________________ Signature

Deposition of DREW ROBERTSON taken on June 21, 2011. RE: John P. Carroll v. WaterSound, et al.

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