CASE NO. 99-491-CR-KING
vs. MIAMI, FLORIDA
SABRETECH, INC.
DANIEL GONZALEZ, DAY 7 - 2:00 P.M.
Defendants.
CAROLINE HECK MILLER, A.U.S.A.
GEOFFREY BRIGHAM, A.U.S.A.
J.L.K. FEDERAL JUSTICE BUILDING
99 N.E. 4th Street
JANE RASKIN, ESQ.
MARTIN RASKIN, ESQ.
RASKIN & RASKIN, P.A.
2937 S.W. 27th Avenue, Suite 206
NORMAN MOSCOWITZ, ESQ.
SULLIVAN RIVERO & MOSCOWITZ, P.A.
201 South Biscayne Blvd.
JANE MOSCOWITZ, ESQ.
100 S.E. 2nd Street, Suite 3700
ROBERT DUNLAP, ESQ.
DUNLAP & SILVERS, P.A.
2601 S. Bayshore Drive, Suite 601
J.L.K. Federal Justice Building
Larry Fogg .................... 4 54
Reporter's Certificate .................................. 70
and 58 N ....................................... 8 20
Government Exhibit 55B ........................ 33 21
2:00 P.M.
COURTROOM DEPUTY: All rise. Court is in
session. The Honorable Judge James Lawrence King
presiding.
MS. MILLER: Yes, Your Honor.
THE COURT: Bring in the jury, please.
[The jury returns to the courtroom].
THE COURT: Be seated, please. Mrs. Miller?
MS. MILLER: Thank you, Judge.
BY MS. HECK MILLER:
Q. Mr. Fogg, I would like to turn your attention again to
the forward cargo hold. What, if any, pieces did you find
A. The first piece would be the forward bulkhead of the
forward cargo compartment. The liner had soot on the side
smoke or heat damage.
Q. What was the significance to you about this fact,
Mr. Fogg?
A. On this particular piece, it would indicate that
area of the aircraft.
Q. I'm sorry, the what compartment?
A. The E and E, electrical and electronics compartment.
Q. If you can do it without moving from your seat, or just
A. Yes, I can. It's from station 218 forward.
Q. Is station 218 where I have my finger now?
A. Yes, it is.
Q. So from this area, forward, is that correct?
A. That's correct.
Q. Mr. Fogg, I'm handing you what has been marke as
Government Exhibit 58B. Do you recognize the object
A. Yes, I do.
Q. Is that a true and accurate photograph of what you
A. Yes, it is.
MS. MILLER: Government offers Exhibit 58B into
evidence.
MS. MOSCOWITZ: No objection.
THE COURT: 58 G is admitted into evidence.
MS. MOSCOWITZ: I'm sorry, Your Honor. I meant
to say, 58 B.
THE COURT: 58 B is admitted into evidence.
[Government Exhibit 58 B received in evidence].
BY MS. HECK MILLER:
Q. Mr. Fogg, if I could ask you once again to step down to
the magnifier. Mr. Fogg, let me, if I might, put this on
the magnifier.
Mr. Fogg, could you tell us, please, what is
side of the cargo hold.
A. This is a photograph from the interior of the
reconstruction fixture. The portion that I was speaking of,
the forward bulkhead, is this portion. So we are looking at
the aft phase which is the side into the compartment. The
218 bulkhead in the aft direction.
Q. Is there a station indicated in this picture?
A. Yes, ma'am.
Q. Can you show us where that station indication is?
A. We have station indications along this support beam
right in this area.
Q. What is the indicated station?
A. The indication is 313.
Q. Now -- I would now like to show you Government Exhibit
58 E, which is already in evidence. I'm going to place that
on the magnifier, along with the other picture. Could you
A. This photograph is what we discussed earlier today,
cargo compartment, the lower forward cargo compartment. The
areas of soot on the inner liner.
Q. Do these two pictures, E and B, show two different
A. Yes, they do.
Q. Can you please use the pointer to show us the piece
A. On the top, it's the lighter, white colored portion in
the reconstruction fixture. In the bottom, it's the
interior cargo side of that same bulkhead.
Q. Does one of those sides have soot?
A. Yes, it does.
Q. Would you indicate to us which one has the soot?
A. This inside surface has the soot.
Q. The same piece from the outside, does it have soot?
A. No, it does not.
Q. Mr. Fogg, if you could resume your seat, please. I'm
Honor. That would make more sense, 58 C, 58 D, 58 I, 58 J,
through those photographs, please.
Mr. Fogg, do you recognize the items depicted in
A. Yes, I do.
Q. Are these photographs true and accurate depictions of
A. Yes, they are.
MS. MILLER: Your Honor, the government moves
58 N.
admitted into evidence with the numbers just read off.
M and 58 N received in evidence].
BY MS. HECK MILLER:
Q. Mr. Fogg, I'm placing on the magnifier, Government
looked at 58. 58 B is on top, and 58 C is on the bottom.
view that screen.
A. Which is on top again, please?
Q. The top is 58 B, and bottom is 58 C. If you are unable
please let us know.
A. The two photographs show substantially the same area
side wall liner and the compartment floor. Whereas 58 B
compartment.
Q. Is 58 C a view more as if one was walking backward into
MS. MOSCOWITZ: Objection. Leading.
A. 58 C --
Q. Excuse me. What does it show? Identify for the jury
which way you are facing.
A. 58 B is taken pretty much from the center line of the
looking forward at an area approximately near station 313.
station 351 forward to station 213.
BY MS. HECK MILLER:
Q. Is that 213?
A. I mean, 218.
Q. Mr. Fogg, I'm going to leave just 58 C on the
magnifier, and I don't know if you can read it. Do you see
A. Station 313.
Q. Would you tell us, please, what is the object that I am
A. That is a recovered portion of side wall liner that had
been installed between station 313 and station 351. It had
the resins burned out of the fiberglass material.
Q. What, if any, significance did it have to you that the
A. The fire was much more intense in that area than
further forward.
Q. Mr. Fogg, I'm now placing 58 I on the magnifier, and I
A. It's another view looking toward the liner from station
wires.
Q. What did you observe about this liner?
A. This is the same liner that had the resins burned out
of it.
Q. Now, Mr. Fogg, did you observe any -- withdrawn.
Mr. Fogg, are you familiar with the term "airplane skin"?
A. Yes, I am.
Q. What is the skin of the airplane?
A. The skin of the aircraft is the aluminum outside sheet
material.
Q. And did you examine both the exterior and the interior
A. Yes, I did.
Q. Did you observe any indication of marks of -- signs of
A. Yes, I did.
Q. Do you observe -- Were you able to correlate the pieces
of airplane skin -- withdrawn.
locations in the airplane.
A. Yes, I was.
Q. I'm placing photograph 58 L on the magnifier, and I ask
A. This is a portion of the recovered outer skin from the
ValuJet aircraft on the left hand side of the airplane. You
itself.
Q. Mr. Fogg, I'm indicating to you where there is a black
line that is met by a yellow stripe and a piece of blue.
A. Yes, it does.
Q. Can you show us either with your finger or with
MS. MOSCOWITZ: Objection. Foundation.
MS. MILLER: Yes, sir.
MS. MOSCOWITZ: It's a different plane, Your
Honor.
THE COURT: I beg your pardon.
MS. MOSCOWITZ: It's a different plane, Your
Honor.
get confused. This is not the same plane, obviously. We
all understand that. Based on the assumption that the jury
you may answer the question.
photograph is this area right in here.
THE WITNESS: The one that is on the magnifier.
pointing to now.
THE WITNESS: Right in this area, yes.
that area, please, in words.
station 313 aft. We've got two cabin pressure release
pressure relief valve openings on the magnified photograph.
It's approximately station 313 aft to perhaps 351.
Q. In lay terms, it's approximately where in relation to
A. It's directly opposite the portions that the cargo
the prior photograph. It's an area just forward -- this is
compartment.
BY MS. HECK MILLER:
Q. Mr. Fogg, with regard to this piece of airplane skin
A. The interior of this piece had soot accumulation on it.
Q. What did that indicate to you?
A. That there was heat and soot in that area outside the
cargo compartment.
Q. What, if any, relationship did that have to the piece
A. It was directly opposite the piece of fiberglass liner
with the resin burnt out from station 313 to station 351.
Q. What conclusion, if any, did you draw with regard to
A. Prior to impact, the fire had escaped from the lower
liner.
Q. Mr. Fogg, I'm now placing on the magnifier, Government
A. This is additional pieces of outer aircraft skin
photograph. They have been placed on a reconstruction
fixture in their proper location. This was as of 31 May in
the hangar at the Tamiami Airport.
Q. And the piece that I'm pointing at with my pointer and
A. It is the same piece.
Q. Mr. Fogg, are you familiar with the term "control
A. Yes.
Q. What is control cable?
A. Control cable is a stranded steel cable that is used to
cockpit throttle handles. That's done through a closed loop
control system, cable system.
Q. Mr. Fogg, is this an electrical action or a mechanical
A. It is a mechanical action.
Q. Is there one control cable or is there more than one
A. There were multiple control cables for various
functions on the aircraft.
Q. Where do the control cables run?
A. Most of the control cables run through lightening holes
termination points.
Q. What is the nature of these cables in their normal
A. The cables themselves when they are installed, are
flexible steel cables.
Q. What is the functionality of their being soft and
A. That's so they translate around the pulleys to which
they are attached in an uniformed easy manner.
Q. When you say "translate around the pulleys," is that
the same as saying they go around the pulleys.
A. Yes, ma'am.
Q. Did you make examination of any pieces of control cable
A. Yes, I did.
Q. And how much of the retrieved control cable did you
A. I looked at all of the retrieved control cable. There
aircraft during the break up sequence.
Q. How is it that you were able to determine that they
A. The individual cables themselves had mechanical
nature.
Q. Did you observe any other changes or markings on cables
A. There were several cables that, when examined, I
fractures as well.
Q. What happens to the flexible nature of cable that
undergoes, that shows this characteristic, Mr. Fogg?
A. In this case, the cable had changed state from a ductal
steel cable to a very brittle steel cable. It was hard and
brittle with a lot of oxidation and rust on it.
Q. How does that change the functionality of the cable?
A. This one, if you bit the individual strands you would
break them.
Q. What, in your experience, produces embrittlement?
A. It would be heat from a fire.
Q. Mr. Fogg I've placed before you an item marked
A. Yes, I do.
Q. What do you recognize it to be?
A. This is one of the recovered portions of control cable
more portions of one of the control cables from ValuJet.
Q. Did you examine these pieces as part of your study of
A. Yes, I did.
Q. Where, in the airplane, did those pieces come from?
A. I was unable to determine an exact location in the
airplane.
Q. Was that the case with regard to other pieces of
A. Yes, that was.
Q. What is the reason that it is not possible to determine
A. There were many, many small fragments of control cables
the aircraft. I did not and was not able to piece together
control cables into proper pre-impact cables.
MS. MILLER: Government offers Exhibit 56 into
evidence.
MS. MOSCOWITZ: No objection.
they seem to be pieces of cable.
[Government Exhibit 56 received in evidence].
BY MS. HECK MILLER:
Q. What, if any, signs of heat and fire damage, did you
A. On this particular cable, there is very little evidence
of heat or fire damage with the exception of this one end.
strands themselves.
Q. What with about in the small envelope? What, if any,
A. In the small bag, there are individual cable strands
that have probably come untwisted during some subsequent
laboratory examination of the strands themselves. But in
this instance, you can see the outer layer of tan coating
has been consumed due to heat, and melted and consumed. We
have got oxidation present in the form of rust on the
surface, and cable strands tend to be brittle and have
embrittlement. They are no longer soft and pliable.
MS. MILLER: Your Honor, with the Court's
permission, I'm going to put these pieces on the magnifier.
THE COURT: All right.
BY MS. HECK MILLER:
Q. Mr. Fogg, could you step over here to the magnifier?
Mr. Fogg, using the magnifier, could you show us which of
these pieces shows embrittlement and which does not?
A. This particular piece shows embrittlement and this
particular piece shows the frayed mechanical strands in the
typical fracture without embrittlement, and they are quite
flexible.
Q. Thank you. If you could resume your seat. Mr. Fogg,
based on your experience, at what temperature does
embrittlement occur in control cable such as this?
A. I don't know an exact temperature for embrittlement.
Typical steel control cable would melt somewhere around 28
hundred degrees. All I have to say is this control cable
where it had embrittlement saw elevated temperature.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
21 Fogg - Direct
Q. What conclusions did you draw based on the
embrittlement of control cable such as in Government Exhibit
56?
A. The control cable itself has been subjected to an
elevated temperature in an area of a fire.
Q. Mr. Fogg, I'm handing you two items which have been
marked as Government Exhibit 56 A and B, and I would ask if
you recognize the item depicted in that photograph?
A. Yes, I do.
Q. Are the photographs true and accurate depictions of the
item?
A. Yes, they are. They are the photographs I took on May
28.
MS. MILLER: Government offers 56A and 56B into
evidence.
MS. MOSCOWITZ: No objection, Your Honor.
THE COURT: Admitted into evidence 56A and B.
[Government Exhibits 56A and B received in evidence].
BY MS. HECK MILLER:
Q. Mr. Fogg, what do 56 A and B depict, if you can tell
us, as I place them on the magnifier?
A. The bottom one is up side down.
Q. Let me put them one by one. Let me place first 56 A.
A. You can see the portion of the control cable to your
right of the glove, which is tapered with embrittlement.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
22 Fogg - Direct
Q. Is that where the pointer is indicating now?
A. Yes, it is.
Q. What is the piece that I'm now indicating with the
pointer?
A. The other piece is a piece of control cable which in
the photograph appears to have some oxidation of the surface
with some heat damage to the tin plating.
Q. What is depicted in photograph 56 B?
A. It is pretty much a repeat shot of the same photograph.
With the exception that the cable is going through one of
the floor beams.
Q. The area that I'm pointing to right now, what does that
indicate?
A. That is the short piece of cable with the embrittlement
and the tapered end.
Q. What is the significance of the tapering of the end,
Mr. Fogg?
A. In this particular cable, it appeared at the time, the
cable was fracture, it was subjected to an elevated heat and
there may have been some elongation in the cable during the
fracturing process.
Q. Mr. Fogg, I would ask you to turn your attention now to
evidence of fire and heat damage which you observed on
pieces that were associated with locations outside of the
forward cargo hold. First of all, Mr. Fogg, how did the
UNITED STATES vs SABRETECH, ET AL - 11-23-99
23 Fogg - Direct
amount and intensity of heat and fire damage compare as
between pieces inside the forward cargo hold and outside the
forward cargo hold?
A. The area inside the forward cargo compartment had
substantially more heat than the areas outside the forward
cargo compartment. The side wall liner on the left side
from station 218 to station 313, which is just forward of
the piece that had the resin burned out, had soot on the
inside. It had charred liner material from station 294 to
about station 213. The outer portion that faced out into
the tunnel area away from the cargo compartment, had only
trace amount of soot if any, on the outer side.
Q. Now, what is between -- what is immediately before the
forward cargo hold in the DC-9 30 series aircraft?
A. Immediately above the cargo compartment ceiling liner,
we have the floor beams installed.
Q. What, if anything, did you observe with regard to floor
beams that were installed over the area of the forward cargo
compartment?
A. Pieces of the floor beams that I examined in the hangar
at Tamiami airport, we had floor beams that had substantial
heat damage and broomstraw on the ends in the area of
station 313 through station 351 on the left hand side. We
also had substantial heat damage a little further out in
station 370 on the left hand side.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
24 Fogg - Direct
On the right hand side, we had floor beams with
broomstraw station 331, 332 and station 351 which are just
forward of the forward compartment door.
Q. Now you have used a term "broomstraw," is that the word
Mr. Fogg?
A. Yes, it is.
Q. What does "broomstraw" mean?
A. Broomstraw is a condition with aluminum when the
aluminum is at a melting point or very near melting point
and subjected to an impact. Upon impact, as the melted
material or molten material starts to leave the solid
original structure, it tends to solidify into the strand
like material which is referred to as broomstraw.
Q. And you observed this phenomenon in pieces of flight
592?
A. Yes.
Q. At what temperature does aluminum melt?
A. Aluminum melts in a range of 1,100 degrees to 1,200
degrees.
Q. You told us about floor beams, what is located in
between floor beams, Mr. Fogg, in the DC-9, series 30
aircraft?
A. In between floor beams longitudinally, we don't have
anything located. It's a relatively open space across the
aircraft. On top of the floor beams, fore and aft the
UNITED STATES vs SABRETECH, ET AL - 11-23-99
25 Fogg - Direct
airplane has seat rails installed which are aluminum seat
tracks which the individual passenger seats lock into to
secure the seats in the aircraft.
Between the seat rails, the cabin floor panels are
installed.
Q. What are the cabin floor panels, and what are they made
of?
A. The cabin floor panels are installed, and that's the
surface that folks walk on between the seat rails, the seat
tracks, and in the case of the ValuJet aircraft, floor
panels were the composite material.
Q. Did you observe any floor panels that showed heat or
fire damage?
A. I observed one piece of floor panel which had fire
damage on the lower surface and no fire damage on the upper
surface.
Q. The upper surface being the surface that faces what?
A. Into the passenger cabin.
Q. And the lower surface being the surface that faces
what?
A. Below the floor, toward the cargo compartment.
Q. Turning your attention now to the passenger cabin,
what, if any, evidence of fire and heat damage did you
observe in pieces that you were able to associate with the
passenger cabin?
UNITED STATES vs SABRETECH, ET AL - 11-23-99
26 Fogg - Direct
A. There was one passenger, portion of a passenger seat
frame, that had heat and fire damage associated with it.
There was one tray table from the seat back, and it had some
partial melt on the tray table. There was a passenger
service unit --
Q. Is that also known as a PSU?
A. Yes, it is. There were a couple of those that had soot
damage and some heat and partial melting. The in board
support assembly for one or more of the PSUs, had heat
damage. When I looked at the electrical wiring --
Q. Excuse me. Before you go on. Mr. Fogg, is that a
portion of the PSU that is on the exterior of the PSU, or
the interior of the PSU?
A. It would be the portion that the PSU physically
attaches to. So it was an in board piece behind the skin of
the PSU.
Q. I'm sorry. If you could continue, please.
A. With regard to the electrical wiring in the passenger
cabin area above the floor, most of that wearing is routed
around the fuselage station in longeron three, which you
will recall are three longerons off center line. We have
longeron three left and longeron three right.
Q. Mr. Fogg, I am bringing over the charge, Government
Exhibit 100. If you could indicate where on this chart, and
let me bring the pointer. Could you indicate where is
UNITED STATES vs SABRETECH, ET AL - 11-23-99
27 Fogg - Direct
longeron three, pointing to on the chart?
A. Zero is topped at center. One, two, would be three
away from the center line left, and three away from the
center line right. On the conduits, that the wiring runs
through, there are nylon, rigid nylon tubing in most cases.
I observed some soot damage, soot accumulation on the
outside of the conduits that were recovered that I could
identify near the forward portion of the passenger cabin
area, both left side and right side.
The wiring toward the aft of the airplane after
the wing area, there was no evidence of any soot or heat
damage.
The wiring that goes to the passenger service unit
outlets that provide the electrical connection for the
electrical items in the PSU, I recovered and observed that
wiring from station 291 on the left hand side, back to about
station 800. And from station approximately 690 on the
right hand side, back to station 800 or 900.
That's installed on the outboard side of the
aircraft, just above the passenger service units, the PSU
units, and there was no evidence of any heat soot or fire
damage to any of that wiring.
Q. With regard to wiring as to which you did observe heat
or fire damage in the passenger cabin, Mr. Fogg, are you
able to distinguish between damage from heat and fire to
UNITED STATES vs SABRETECH, ET AL - 11-23-99
28 Fogg - Direct
wire versus electrical damage to a wire?
A. Yes.
Q. Which did you observe in the passenger cabin?
A. In the passenger cabin, there was no wiring that was
recovered that had any heat damage at all. There was some
soot accumulation on the conduits near longeron three in the
forward end, but none of the wiring had any heat or soot
accumulation.
Q. Did any of the wiring in the passenger cabin have any
signs of electrical damage?
A. No, all of the fractures in the recovered wires in the
passenger cabin were mechanical fractures due to impact of
the aircraft.
Q. What, if anything, did you observe with regard to the
stowage bin end caps in the passenger cabin, Mr. Fogg?
A. The stowage bin end caps had some soot accumulation on
the outer side. Some of the stowage bins had soot
accumulation on the inner face toward the cabin.
Q. What was the degree of soot on these pieces of stowage
bin structure?
A. It was more than trace amount. It was not heavy, but
definitely visible.
Q. What, if anything, did you observe on the passenger
evacuation door slide light?
A. The door slide light was from either the passenger
UNITED STATES vs SABRETECH, ET AL - 11-23-99
29 Fogg - Direct
re-entry door left or right, which is forward of station 218
at the very forward portion of the passenger cabin. It had
soot accumulation on the light assembly itself.
Q. What portion of the light assembly?
A. I believe it was the walnut grain surroundings that
supported the light assembly.
Q. What, if any, evidence did you observe with any
electrical problems with that light?
A. None.
Q. Now, Mr. Fogg, you have mentioned seat track, have you
not?
A. Yes, I did.
Q. Where, again, is the seat track located in the cabin?
A. It attaches to the top surface of the floor beams.
Q. And this is the floor between what portions of the
aircraft?
A. All the way through the passenger cabin.
Q. What is above this floor and what is below this floor?
A. Above the floor is the passenger cabin. Below the
floor would be the forward compartment and the area where
the fuel is installed, the center wing area, the landing
gear wheelwell area. After that, you would have the cargo
compartment back to the operations cockpit.
Q. Mr. Fogg, I'm handing to you an item, what is marked as
Government Exhibit 55, and I ask if you recognize that
UNITED STATES vs SABRETECH, ET AL - 11-23-99
30 Fogg - Direct
object?
A. Yes, I do.
Q. What do you recognize that object to be?
A. This is one of the recovered seat tracks that I
examined from the aircraft.
MS. MILLER: Government moves into evidence
exhibit 55.
MR. RASKIN: No objection.
THE COURT: 55 is admitted into evidence.
[Government Exhibit 55 received in evidence].
BY MS. HECK MILLER:
Q. Earlier you mentioned something called broomstrawing.
Can you correlate broomstrawing to that exhibit?
A. Yes, I can.
Q. If I might, I'm going to try to put it on the
magnifier. First of all, can you tell us in a more general
sense, what is it that we are looking at on this piece?
A. This is a piece of seat track. This is the upper
surface, and you can see the machined area where the
individual seats lock into the seat track at the various
seat pitch locations within the aircraft.
Here we have some fiberglass material that has the
resin burned out as opposed to fiberglass material which
still has the resin present.
Q. Do those have different textures, Mr. Fogg?
UNITED STATES vs SABRETECH, ET AL - 11-23-99
31 Fogg - Direct
A. Yes, they do.
Q. Could you describe the different textures?
A. The texture of the fiberglass material which still has
resins tends to be solid and ridged. The other is very soft
and flexible.
Q. And does this piece display broomstrawing?
A. This piece does display broomstrawing.
Q. Could you point to where it is, and then I'm going to
try to take it over to the magnifier?
A. The most noticeable piece with the broomstraw on this
end, and you can see how it is broomstraw.
Q. Mr. Fogg, what I'm pulling away here, this is
fiberglass, is that correct?
A. Yes, it is.
Q. What are these strands here?
A. That's broomstraw.
Q. How does this differ from the state of the metal prior
to any heating?
A. The metal is solid metal, just like you have back in
your hand further back from there.
Q. Right here, where the pointer is pointing?
A. That's got some heat damage. You need to go further
back.
Q. To here?
A. About where your thumb is.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
32 Fogg - Direct
Q. To here?
A. Yeah, back in that area.
Q. This area here shows the metal in it's normal state, is
that correct? Would you prefer to come down and do this
yourself, Mr. Fogg?
A. I might try. In through this area, you can see the
broomstraw all across this surface. When we are talking
about the metal in the state as it would have been prior to
the broomstraw, you would need to come back into an area
back in this region where it is machined aluminum piece.
Q. Thank you, Mr. Fogg.
Mr. Fogg, I'm now handing you what has been marked
for identification as Government Exhibit 55B. Mr. Fogg, I'm
now handing you what has been marked for identification
purposes as Government Exhibit 55B, and ask if you recognize
that.
A. Yes, I do.
Q. What do you recognize that to be?
A. This is a floor beam from the recovered wreckage that
was specifically identified as the floor beam that ran
across -- it's a seat track that ran across floor beam 313,
where I have a tag from the reconstruction efforts of years
ago, aft to station 322 and forward floor beam at station
294. There's a physical match of the fracture from the seat
track in the floor beam where it attached for positive
UNITED STATES vs SABRETECH, ET AL - 11-23-99
33 Fogg - Direct
identification location of this particular piece of floor
track.
Q. And did you write anything on that manilla tag,
Mr. Fogg?
A. Yes, I wrote station 313 floor beam and X = 22. X = 22
is that X coordinate from the center line out so it would be
22 inches outboard of the center line of the aircraft. This
would be an in board seat track. There's also broomstraw on
the portion of station 313 floor beam that's attached to
this, as well as some visible broomstraw in the end back
here at station 322.
MS. MILLER: Government offers 55B into evidence,
Your Honor.
MS. MOSCOWITZ: No, objection.
THE COURT: 55G is admitted into evidence.
MS. MILLER: I meant to say B as in "boy."
THE COURT: Wasn't it earlier offered for
identification as G? That's what the record shows.
Whatever, it is now 55B, as in "boy," is that it?
MS. MILLER: Yes, sir.
[Government Exhibit 55 B received in evidence].
BY MS. HECK MILLER:
Q. Mr. Fogg, I'm handing you a photograph that is marked
as Government Exhibit 55 A, and I ask if you recognize the
object depicted in that photograph?
UNITED STATES vs SABRETECH, ET AL - 11-23-99
34 Fogg - Direct
A. Yes, I do.
Q. Is that a true and accurate picture of that object?
A. Yes, it is.
MS. MILLER: Government moves 55A into evidence.
MR. RASKIN: No objection.
THE COURT: 55A is admitted into evidence.
[Government Exhibit 55 A received in evidence].
BY MS. HECK MILLER:
Q. Mr. Fogg, what does that photograph depict?
A. It depicts one of the floor beams which has the
broomstraw on the end.
Q. And I'm placing it on the magnifier, and I'm pointing
it to a portion of the photograph. What am I pointing to?
A. The broomstraw.
Q. Now, with regard to signs of fire and heat damage in
the passenger cabin, Mr. Fogg, what, if anything, did you
observe with regard to any spring mechanism?
A. There was a piece of seat frame with a back return
spring that was heat damage, and had some partial melting of
aluminum.
MS. MILLER: Your Honor, 53N is already in
evidence, is it not?
THE COURT: 53?
MS. MILLER: 58N.
THE COURT: 58N is in evidence.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
35 Fogg - Direct
MS. MILLER: Thank you.
BY MS. HECK MILLER:
Q. Mr. Fogg, I'm placing 58N on the magnifier. What does
this photograph depict?
A. This photograph depicts that portion of the seat frame
that I mentioned with the seat back return spring mechanism,
and you can see the partial melting of the aluminum in the
portion where it's flat toward the center of the picture.
Q. What am I pointing at here?
A. That's it, right there.
Q. What are these folds?
A. The folds are softened aluminum and you can see some
partial melting down inside that area.
Q. Mr. Fogg, what, if any, evidence of fire or heat damage
did you observe in the cockpit of the aircraft or the pieces
that were associated in the reconstruction with the cockpit?
A. Portions of the overhead switch panel circuit breaker
panel were recovered and there was no evidence of any heat,
fire or soot accumulation on those portions. Portions of
the main electrical power center were recovered. Now,
that's right behind the pilot seat and the inside portion of
those circuit breaker panels were completely free of any
heat or soot accumulation. The outside portion, to me,
appeared to be free of soot accumulation although there may
have been trace amounts of soot accumulation on the panels.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
36 Fogg - Direct
Q. Were there any other objects in the cockpit that
suggested the possibility of fire or heat damage?
A. The passenger oxygen bottles were recovered,
specifically, the passenger oxygen bottle. It had some dark
discoloration around the top. I did not consider that to be
soot accumulation. Although, around the remainder of the
bottle, it may be that we have evidence of some trace amount
of soot accumulation although, I personally considered that
it was not soot accumulation.
Q. What, if any, fire or heat damage did you observe --
withdrawn.
Mr. Fogg, what are the tunnels of the aircraft?
What does that term refer to?
A. The tunnels are the area of the aircraft, left and
right, between the floor support beams and the outer
fuselage skin as depicted on the diagram.
Q. I'm bringing over to you Government Exhibit 100, and
could you show us with the pointer the area that depicts the
tunnels?
A. The area that depicts the tunnels would be from
longeron 19 to longeron 22, left and right, and in board to
the support struts from the fuselage frame to the floor beam
up to the floor beam itself.
Q. You are indicating something that is in the oval shape
cross section of the chart, is that correct?
UNITED STATES vs SABRETECH, ET AL - 11-23-99
37 Fogg - Direct
A. That's correct.
Q. Do these tunnels run the length of the plane?
A. The tunnels run the length of the plane with the
exception of the wheelwell area where they terminate at
bulkheads.
Q. What, if any, evidence of heat or fire damage did you
observe in pieces that were associated with the aircraft
tunnels?
A. The normal air flow from the cabin circulates through
the compartment and down through the side wall at the floor
level into the tunnel areas left and right, and it crosses
around the cargo compartments above and below between the
floor beams and the ring frames. And it's exited out the
outflow valve at the rear of the aircraft, approximately
station 900. That's a normal air flow within the aircraft.
The soot damage that I observed in the tunnel
areas was soot damage in the tunnel areas around the forward
lower cargo compartment or soot accumulation. And localized
soot accumulation in the aft left hand tunnel near the
outflow valve, as well as soot trailing from the outflow
valve assembly itself.
Q. The soot trails from the outflow valves assembly, what
shape or form did that take?
A. It was soot that was in the air being exhausted by the
aircraft into the slip stream, and it followed the width of
UNITED STATES vs SABRETECH, ET AL - 11-23-99
38 Fogg - Direct
the valve and attached to the aircraft outer skin as it
exited the outflow valve.
THE COURT: Let me understand your last answer.
Did you indicate that you saw soot on what would appear to
be the area right immediately where the outflow valve
protrudes from the airplane?
A. Yes, sir.
BY THE COURT:
Q. Indicating what?
A. Indicating that we have a fire that is generating
smoke, and the normal air flows within the aircraft itself
are carrying this smoke through the normal flow patterns
which cross the airplane and run down and out the left
tunnel of the aircraft, and I observed smoke on the inner
portion of the aft tunnel near the outflow valve and also
soot attached along the outside surface of the fuselage in
flight as it exited the aircraft.
THE COURT: Thank you.
BY MS. HECK MILLER:
Q. Mr. Fogg, I'm placing on the magnifier, Government
Exhibit 58 K which has been placed in evidence. I would ask
if you could explain to us what this photo depicts, and how
it relates to what you have just been describing and tell me
if I've got it up side down please?
A. It's okay.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
39 Fogg - Direct
The photograph depicts the area of the outflow
valve and the soot trail that is coming across the
structure.
Q. What am I pointing to here with the pointer?
A. This is the outflow valve itself.
Q. Can you show us the soot trail?
A. It's the dark portion trailing down the outside of the
aircraft.
Q. Is that what I'm pointing to?
A. Yes, it is.
Q. Mr. Fogg, under ordinary conditions, does the cargo
hold vent out to the tunnels?
A. No, the cargo hold is essentially a sealed compartment.
There's some slight pressure equalization during the climb
and descent.
Q. Is there anything you observed about the wreckage of
the cargo hold that would change that normal circumstance.
A. In this particular occurrence, with the extensive heat
damage to the structure of both the compartment, the heavy
sooting around the compartment, it would be evident that we
had breached the cargo compartment liner and spread the fire
beyond the cargo compartment, thus we no longer had a sealed
intake cargo interval compartment unit.
Q. Mr. Fogg, did you also examine portions of the aircraft
that could be associated with locations that were aft, that
UNITED STATES vs SABRETECH, ET AL - 11-23-99
40 Fogg - Direct
is, behind the forward cargo hold?
A. Yes, I did.
Q. What, if any, heat damage did you observe in any
portion of the aircraft that you could associate as being
aft of the cargo hold, and inside the airplane other than
the tunnels?
A. After the cargo hold, was the aft face of the rear
bulkhead of the cargo compartment which was set free.
Immediately behind that, we had the 580 gallon supplemental
fuel tank which had no heat, fire or soot damage associated
with it and no other areas of heat damage were evident
either in the wheelwell area or further after the aft cargo
compartment back to the empennage, which is the very end of
the aircraft.
Q. What is that word. Is it spelled e-m-p-a-n-n-a-g-e?
A. That's close enough.
Q. Mr. Fogg, you have told us that you examined wiring
from the aircraft, is that correct?
A. Yes, I did.
Q. I'm placing on the magnifier a photograph which has
been previously entered into evidence as 58 J, and I'm
asking you to describe what this depicts and it's
relationship to wiring in the aircraft?
A. This depicts wiring that I recovered and relocated back
in the reconstruction fixture in it's respective locations
UNITED STATES vs SABRETECH, ET AL - 11-23-99
41 Fogg - Direct
in the vicinity of station 351 left side.
Q. Now, Mr. Fogg, I'm pointing with the pointer to strand
like objects down here and further strands, white strands
coming off of this group of strands. What are these
strands?
A. Those are individual wires.
Q. And at this end of the photograph, I'm pointing to
something darker that also appears in this photograph. What
is that I'm pointing at?
A. That's some heat damage nylon conduit.
Q. What is nylon conduit in relationship to aircraft
wiring?
A. On the DC-9 aircraft, the wiring that routed through
the tunnel areas on the left and right hand sides was
contained within rigid nylon conduits or tubes that routed
through the lightening holes in the floor beams, and also on
the left hand side, we had some that routed through
lightening holes on the support struts for the cargo liners
themselves.
Q. In this particular photograph, you told us you observed
signs of heat damage to the nylon conduits, is that correct?
A. Yes.
Q. What were the indications of heat damage to the
conduit?
A. In this particular area from about station 300 through
UNITED STATES vs SABRETECH, ET AL - 11-23-99
42 Fogg - Direct
330, we had evidence of distortion and melting of the nylon
conduit itself. Forward of that, up toward station 218, I
observed soot accumulation on the outside of the conduit,
but not melt of the conduit. Further aft, around station
370, which is about 20 inches aft of here, we had recovered
wires, and I reinstalled them in their proper positions and
had portions of conduit that had been completely consumed by
the fire.
Q. In this photograph, there is heat damage to the
conduit. What, if any, heat damage did you observe in the
wiring?
A. That wiring has no heat damage on it. It has got very
little soot accumulation, if any. The wire was protected by
the conduits. Through that area, the further outboard you
go, you've got multiple conduits that run between the floor
beams so there are some that are virtually adjacent to the
cargo compartment, and some that are closer to the skin.
One of the conduits that was further outboard ran
intact all the way back to station 408, which obviously, saw
lesser degree of heat intensity than the conduits that were
closer to the cargo compartment in that area of higher heat.
Q. Mr. Fogg, what, if any, wiring is there inside a
forward cargo compartment of a DC-9 series 30 aircraft?
A. There is no exposed wiring within the cargo compartment
on a DC-9 series 30.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
43 Fogg - Direct
Q. Does the compartment have any ceiling lights?
A. The compartment has some cargo lights in the ceiling
that are protected by aluminum grill work, and it is
controlled by a switch in the doorjamb of the cargo door.
The wiring is all outside the compartment behind the liner.
Q. Did you see any signs of any electrical involvement in
any fire in the forward cargo hold?
A. No, I did not.
Q. Had there been electrical involvement outside the
forward cargo hold, what would you have expected to have
seen with regard to the forward cargo hold?
A. Had there been a problem with electrical outside the
forward cargo compartment, I would have expected to see any
problem remain exclusively outside of the compartment and
not penetrate the liner at all.
Q. What about any fire in the tunnel area?
A. To the extent we have a fire in the tunnel area, it is
difficult to burn through the fire resistant fiberglass
liner from the outside, as it is to burn from the inside out
and we would have seen considerably more fire damage outside
in the tunnel areas than we see presently.
Q. Mr. Fogg, what is arcing?
A. Arcing is a phenomenon of the passage of sparks and
visible light between two electrodes in very close
proximity.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
44 Fogg - Direct
Q. Is arcing associated with electrical problems?
A. Arcing is frequently associated with electrical
problems.
Q. Does arcing leave any physical signs?
A. Arcing usually will leave physical signs, if it's
strong enough to cause a problem. That will be a transfer
of metal between the electrodes.
Q. In your examination of the wiring that was retrieved
from ValuJet 592, did you see any evidence of arcing?
A. I examined every wire for evidence of arcing. All of
the frayed ends, and found no evidence of arcing. There was
one wire in station 370 that was sort of unique in the fact
that it was about 8 inches long. It was attached to a brown
stud, which means that it had the same potential as the
structure.
Q. When you say the same potential, what are you referring
to, Mr. Fogg?
A. Normally in a house circuit, we have in a battery or a
flashlight, we have a complete circuit path. We come from
the positive potential back to a ground to complete a
complete circuit. On an aircraft, the structure itself is
the ground path, so circuits, the power is generated at the
engine driven generators or the battery, and it runs through
the electrical distribution system through all of the
circuit protection devices and circuit breakers or what have
UNITED STATES vs SABRETECH, ET AL - 11-23-99
45 Fogg - Direct
you, to it's end circuit where it's purpose is being
utilized, and as it completes it's circuit path, it goes
through the light bulb or the motor or whatever the device
it's physically energizing, the ground return path is the
aircraft structure.
It's attached firmly to the structure. So, this
particular wire had the same potential as the aircraft
structure, such that it would short the structure and arc
because it's at the same potential.
However, in this one wire in an area of very high
heat, there was evidence of possible localized melt with
some tapering on the end, which would be indicative of a
high heat concentration on that wire in that area on the
time it fractured.
Q. Mr. Fogg, based on your observations, did you draw any
conclusions as to the likely location and path of the fire
aboard ValuJet 592?
A. Yes, I did.
Q. And what conclusion did you draw?
A. Based on --
MS. MOSCOWITZ: Objection, Your Honor, likely?
THE COURT: Overruled. You may answer the
question.
THE COURT: Based upon reasonable probability.
Would you like to rephrase the question?
UNITED STATES vs SABRETECH, ET AL - 11-23-99
46 Fogg - Direct
BY MS. HECK MILLER:
Q. Mr. Fogg, based on your observations did you draw any
conclusions as to the reasonably probable location and path
of the fire on board ValuJet flight 592?
MS. MOSCOWITZ: Same objection.
THE WITNESS: Yes, I did.
MS. MILLER: Is the objection overruled?
THE COURT: Was there an objection?
MS. MOSCOWITZ: Yes, Your Honor, there was.
THE COURT: Well, this is probably a good time to
take a recess any way. It's 3:30, we have been at it for
an hour and a half. Do you mind if we take -- does this
interrupt you. Is this the last question you've got?
MS. MILLER: There is a series of closing
questions, but this is not a bad time.
THE COURT: All right, ladies and gentlemen, step
into the jury room.
[The jury leaves the courtroom].
THE COURT: Would you state your objection,
please?
MS. MOSCOWITZ: Your Honor, I don't think the
appropriate standard, Your Honor, is whether his opinion of
how the fire likely traveled or whether it is reasonably
probable, I don't think that's the appropriate level that
he has to reach, for this testimony to go to the jury.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
47 Fogg - Direct
THE COURT: Okay. What do you think the level he
has to reach?
MS. MOSCOWITZ: Reasonable, scientific certainty
or I can't remember the phrase, but I know it's more than
that.
THE COURT: Reasonable scientific probability?
MS. MOSCOWITZ: Probability?
THE COURT: Scientific probability?
MS. MOSCOWITZ: Scientific certainty, I thought.
THE COURT: There are some magic words that you
are supposed to use, and that is what she is talking about.
I always thought it was drawing on your experience and
background and, so on. Do you have an opinion within a
reasonable scientific certainty or probability as to what
caused the fire, and he says, Yes, he does, and you ask him
what it was. Whatever it was. That's her objection, so
you can work on the question.
MS. MILLER: I will use those terms, Your Honor.
Reasonable, scientific certainty.
THE COURT: Whatever, we'll came back to that
right after the recess.
[There was a short recess].
COURTROOM DEPUTY: All rise. Court is in
session.
THE COURT: Are we ready?
UNITED STATES vs SABRETECH, ET AL - 11-23-99
48 Fogg - Direct
MR. RASKIN: Yes, sir.
THE COURT: Bring in the jury please.
Thank you. Be seated, please. Would you ask the
witness to come back?
Sorry about the delay, ladies and gentlemen. It
had nothing to do with the case. I got tied up with one of
my colleagues, another Judge. He had some administrative
things for the Court that we had been working on. Some of
them have been worked out. Getting our first cost of living
raise in ten years. That happened yesterday in Congress.
It had nothing to do with this trial.
Ms. Miller.
BY MS. HECK MILLER:
Q. Mr. Fogg, as an expert witness, are you receiving
payment from the United States government for your
testimony?
A. Yes, I am.
Q. At what rate?
A. 100 dollars an hour.
Q. Mr. Fogg, you testified concerning a wire that had a
possible melt on it, do you recall that?
A. Yes.
Q. Where was that in relation to the forward cargo hold?
A. That wire was attached to a ground stud near the top of
the support station 370, in the left hand side.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
49 Fogg - Direct
Q. Is that in proximity to the forward cargo hold?
A. Immediately adjacent to the forward cargo hold.
Q. Mr. Fogg, as part of the items that you examined and
observed, did you have occasion to see any oxygen generators
that were retrieved from the wreckage site?
A. Yes, I did.
Q. Approximately, how many oxygen generators did you
observe?
A. Portions of somewhere in the order of 28 or 29.
Q. What did you observe with regard to any heat or fire
damage on oxygen generators?
A. Some of the oxygen generator outer containers had
evidence of high heat.
Q. And what was that evidence?
A. The stainless steel had turned dark purple, dark blue
to black, and they were somewhat compressed.
Q. At what temperature does stainless steel undergo such
changes?
A. Stainless steel typically melts around 27 or 28
hundred. Those changes occur lower than that.
Q. Approximately how much lower?
A. Approximately 25 hundred degrees. Maybe as low as 22
hundred degrees. I'd have to go back to the literature to
see the individual gradings.
Q. Did you observe any dents or indentations on top of the
UNITED STATES vs SABRETECH, ET AL - 11-23-99
50 Fogg - Direct
oxygen generators?
A. Several of the oxygen generators had indentations at
the top of this primary mechanism that would match the
indentation from a striker mechanism contacting it.
Q. Mr. Fogg, I would like to hand you for a moment, what
has been received in evidence as Government Exhibit 30 B.
Do you recognize this item?
A. This is the outer can of a Scott Aviation oxygen
generator.
Q. And can you show us where on this oxygen generator is
the area where you noted indentations?
A. It would have been the top of the primer cap in this
area of the can, the upper portion top of the can, that
primer cap is missing on this unit.
Q. Mr. Fogg, based on your observations and experience,
did you form an opinion to a reasonable scientific certainty
as to the source and path -- withdrawn.
As to the location and path of the fire in ValuJet
592?
A. Yes, I did.
Q. What was that opinion?
A. Based on the fact that the aircraft is equipped with a
Class D cargo compartment with fire resistant linings, and
the heat damage associated with the linings themselves,
showed a much higher degree of heat concentration within the
UNITED STATES vs SABRETECH, ET AL - 11-23-99
51 Fogg - Direct
compartment than outside the compartment.
With regard to the electrical wiring, the wiring
is outside of the compartment in it's entirety. Since the
compartment is a Class D compartment, it will contain a fire
of normal passenger luggage and contents to save smoldering
state, due to oxygen depletion during the initial combustion
process, such that the compartment will completely contain
the fire and allow for a safe landing of the aircraft.
It is equally difficult for a fire that is
involved in an aircraft outside of a compartment to
penetrate a liner and go into the compartment. In order to
breach a cargo compartment of Class D configuration in the
volume of the cargo compartment empty on this aircraft is
approximately 420 cubic feet.
It would be required to have either a total breach
of the compartment before the fire started, or an oxidizing
agent or something to enrich the atmosphere and continue to
supply oxygen to prevent oxygen depletion during the
combustion process, which would allow the fire to grow in
intensity and ultimately burn through and breach the cargo
liners.
In the case of the ValuJet flight, it is my
opinion that the oxygen canisters within the compartment,
together with the tires that were being shipped, provided an
additional oxidizing agent to enrich a fire in progress, to
UNITED STATES vs SABRETECH, ET AL - 11-23-99
52 Fogg - Direct
allow a fire to continue to burn including the tires, to a
point where the intensity either breach the compartment
itself, or in combination with the explosion of the tire due
to fire damage, breached the compartment which once
breached, allowed the conditioned air from the aircraft to
completely fuel the fire, and exacerbate it for the
remainder of the flight.
Q. Did you reach a conclusion to a reasonable scientific
certainty as to whether the oxygen generators played a role
in contributing to the intensity and gravity of the fire in
flight 592?
MS. MOSCOWITZ: Objection. Asked and answered.
That's exactly what the witness was just testifying about.
THE COURT: Overruled. You may answer the
question.
THE WITNESS: Yes, I did.
BY MS. HECK MILLER:
Q. What is that opinion?
A. It's my opinion that oxygen canisters, one or more
canisters, activated either during the loading process of
the boxes in the aircraft, or during the landing or take off
role of the aircraft, and during the initiation process, the
oxidation process within the canisters generates external
heat in the canister itself. That, coupled with the pure
oxygen concentration in the surround materials, is
UNITED STATES vs SABRETECH, ET AL - 11-23-99
53 Fogg - Direct
sufficient to initiate fire, which once initiated, continues
to be fed by the oxygen from the oxygen generator,
increasing heat, which in turn, allows other oxygen
generators to discharge, initiate thermally and discharge
pure oxygen which builds on itself, until we have a fire
that is totally out of control.
MS. MILLER: I have no further questions.
MR. RASKIN: Your Honor, may I move to strike the
first part of the answer dealing with the cause of the
initiation of oxygen generators? I heard nothing in this
man's background that would lead me to believe that he is
an expert in oxygen generators, as opposed to fires.
THE COURT: Motion is denied. Do you wish to go
forward with cross examination at this point, or do you
wish to take it up in the morning?
MS. MOSCOWITZ: If would you prefer to wait until
the morning? That would be fine, Your Honor.
THE COURT: I don't want it to be my choice. We
normally have been going until 5:30, but it's been a long
day, and we have had a lot of the expert testimony and
direct examination, and if -- I don't want to cut the
lawyers off at this point in time, but if you prefer to
pick up in the morning with cross examination, that's fine
also. I'm trying to make it comfortable.
MS. MOSCOWITZ: Your Honor, I would prefer to do
UNITED STATES vs SABRETECH, ET AL - 11-23-99
54 FOGG - Cross
five minutes, and then break for the day if, Your Honor,
will indulge me?
THE COURT: That would be perfectly all right
with me.
CROSS EXAMINATION
BY MS. MOSCOWITZ:
Q. Sir, everything you learned about oxygen generators,
you learned from Mr. Brennan from Scott Aviation, isn't
that correct?
A. That's not correct.
Q. Didn't you testify at a deposition that you learned all
about oxygen generators from Mr. Brennan from Scott
Aviation?
A. What I testified to in my deposition was that details
concerning oxygen generators I obtained from and learned
from Mr. Brennan at Scott Aviation. If you want to go into
my experience with oxygen generators in accident, in
incident investigation, we can do that.
Q. Well, let's go back and talk about your deposition for
a second, though. You were a -- your entire career has been
with McDonald Douglas, in it's various merged forms, is that
correct?
A. That's correct.
Q. And you retired from them in 1999, and were almost
immediately rehired by them, right?
UNITED STATES vs SABRETECH, ET AL - 11-23-99
55 FOGG - Cross
A. That's correct.
Q. McDonald Douglas is a defendant in litigation brought
by families of victims of flight 592, right?
A. That's correct.
Q. Do the degree that McDonald Douglas has some fault in
this accident, they're liable and they are going to owe
compensation to people, right?
A. To the degree that they are at fault, yes.
Q. And if other people are at fault, then maybe McDonald
Douglas might not be at fault?
A. I have no idea.
Q. You have some idea that it is in McDonald Douglas'
interest to have somebody else be at fault, correct?
A. That's not my understanding. McDonald Douglas'
interests are to, in they're at fault, they would pony up to
the fault.
Q. I see, and there is still litigation pending though,
right?
A. I assume there is.
Q. And they're still actively defending that litigation,
correct?
A. That's correct.
Q. Your Honor, with that, I guess we could pick up in the
morning?
THE COURT: All right, any objection to recessing
UNITED STATES vs SABRETECH, ET AL - 11-23-99
56 FOGG - Cross
at this time?
MS. MILLER: No, Your Honor.
MR. RASKIN: No, Your Honor.
THE COURT: Ladies and gentlemen, we thank you
very much for your patience today in listening to a great
deal of sometimes very technical information or testimony,
and we appreciate your promptness in being here on time.
Please follow the instruction not to discuss the
case with anyone during the night recess with friends or
family or anyone. Please do not read anything in the
newspaper, television or radio. We will see you tomorrow
morning. I don't know whether I have another early hearing
like I did today. We will see you tomorrow morning at
9:00. Thank you very much. We will see you in the
morning.
[The jury leaves the courtroom].
THE COURT: Mr. Fogg, you are free to step down.
We thank you, sir. You can step down as soon as the jury
steps out. We will remind you, of course, the instruction
not to discuss any of the facts of your testimony, the
facts of your testimony or your testimony with anybody
during the night recess.
You are in the middle of your testimony so,
therefore, it would not be fair to have a discussion with
anybody. If you will be back in the morning a few minutes
UNITED STATES vs SABRETECH, ET AL - 11-23-99
57 FOGG - Cross
before nine or whatever time you wish, but at least a few
minutes before nine. We will resume at 9:00. Thank you.
THE WITNESS: Thank you very much.
THE COURT: I will ask my courtroom deputy to
bring in those motions, and we will take them up at this
time if everybody is ready to do so since we have a short
day today.
MS. MOSCOWITZ: I just wanted to ask those five
minutes because my daughter was here.
THE COURT: To do what?
MS. MOSCOWITZ: I just wanted to do those five
minutes of questions because my daughter was here.
THE COURT: Good, I thought it was to slash, cut
and burn certain parts of the witness. I didn't realize
that.
MR. RASKIN: We hoped others thought that way
too, Your Honor.
THE COURT: If I had known that, I would have
made you go on for another half an hour.
You know, Mr. Moscowitz, the independent female
side of the marriage, my daughter. You noticed that,
didn't you? No thought about you asking a few questions
was there?
MR. MOSCOWITZ: Could I have gotten up and done
so, your Honor?
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58 FOGG - Cross
THE COURT: We have -- before we get into that --
I want to make sure you have all these exhibits marked
properly in evidence, and we are dealing with a great
number of exhibits today. They are as follows, and I want
them all marked carefully, and left here overnight, or in
the clerks custody, but 54 B, like in boy through N, like
in north, 54 Q, B, and O. These are all for the
government.
Exhibit 79, 49. No, no. 49 A was only marked
for identification, it was not offered by Mr. Brigham, so
it's not in evidence. Only 49 A for identification. 100
was admitted. 58 E, F, G and H, exhibit 58 O, 58 B, 58 D,
C, J, K, L, M, N, 56 A, 56 B, 55, 55 B, and 55 A.
As far as I know, those were the only exhibits
offered and that's the totality of those offered today. We
had two witnesses, agent Mike Gentile and Mr. Larry Fogg.
Were there any others that were missed, as far as you know?
MS. MILLER: Your Honor, if I could just have a
moment, please. I thought that there might be something
else with Mr. Gentile. We had government exhibit 79, Your
Honor.
THE COURT: Vicki, look on the list.
COURTROOM DEPUTY: 79, yes.
THE COURT: Yes. Well, if there are any others,
you can take them up with Ms. Kramerman after the hearing
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59 FOGG - Cross
and have someone here from the defense, if the two of you
agree.
MS. MILLER: Judge, what would you like us to do
with the big exhibits, there are some big bulky exhibits,
those pieces of seat track. Do you want us to leave them
here.
THE COURT: I don't want them to be lost. I want
them marked carefully with Ms. Kramerman's date and
initials. I want them to be carefully preserved in some
way. Now, the clerk's office doesn't really have good
storage facilities, or I hesitate to say any storage
facilities, but when we get into bulky exhibits, for
example, seat tracks and wires and canisters, all of those
things, we are going to have to have some agreement about
how we have to maintain them.
With each Judge in this court getting 600
assignments as year of cases, you can imagine the filing
cabinets fill up very quickly, so we have to work something
out. At least at this juncture, I want them marked with
the stickers and then at least if we look at them a month
from now or whatever it may be, we will know that we have,
in addition to the record, we will have them actually
marked.
MS. MILLER: Your Honor, with regard to the bulky
items, they had some tags on them that were placed on them
UNITED STATES vs SABRETECH, ET AL - 11-23-99
60 FOGG - Cross
in the course of the civil litigation, and if it's
agreeable to the Court, counsel and I have agreed that the
tags would be removed before --
THE COURT: Absolutely. We shouldn't inject into
this trial anything that occurred, or suggest the
occurrence of an administrative hearing or a civil trial or
anything else. I'm perfectly comfortable with that as long
as you all agree, just let me know or just by agreement
remove them.
It might be well for you to stand and dictate at
one of the recesses into the record, we have removed a
green tag, yellow tag or blue tag from 46 A or whatever it
is. Then there's some sort of record of it. But certainly
by agreement, I have no difficulty with it.
It was filed again, 721. I misspoke. I said 741.
It was 721. I know it came in after I got here. Motion for
the Court to take judicial notice. It is comprised of four
pages and I will hear -- I think it's rather self
explanatory, and rather than hearing from the government
first, I'll ask if there are any objections?
MR. MOSCOWITZ: Your Honor, we received it after
Your Honor did, because we weren't here at the time.
THE COURT: Well, that was tricky, isn't it. Is
that fairly typical to what you all are doing? You're
giving it to the Judge first and an hour or two earlier.
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61 FOGG - Cross
MR. MOSCOWITZ: No, I only meant that I wasn't
here at that time.
THE COURT: Oh I see.
MR. MOSCOWITZ: We have looked it over, Your
Honor, and I can say preliminarily, we do have objections,
and we also have a different view of the statement of the
law in here, the summary of the law. Our suggestion would
be that in so far as the question of taking judicial notice
of the regulations and statutes that relate to the issues
in this indictment during our case, there may be related
statutes and regulations that we will seek to have the
Court take notice of that we would want to supplement this
witness as well as change it. That this is something that
should be taken up before the jury is charged, Your Honor,
in terms of what additional law needs to be given to the
jury in terms of consideration of this case.
I don't think it's something that needs to be
taken up now before the conclusion of the government's case
or should be. This isn't a question of evidence. The
government can put on it's evidence. This is simply a
question of the law, which the jury will be charged with at
the end. So we do object. We think it's something that is
important. We think it's a misstatement of the law in here
and we want to brief it.
More than that, we would also propose judicial
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62 FOGG - Cross
notice of additional regulations and statutes, so that
maybe we can work it before the charging conference, and if
not, then we present to the Court at that time what both
parties believe the Court should take notice of.
THE COURT: All right. Ms. Miller, do you have
any objection to taking this matter up at the charge
conference?
MS. MILLER: Your Honor, our concern is our
indictment includes background information about some of
these aspects, the department of transportation et cetera.
We have very much taken to heart the Court's abolition that
the does wish to hear from a witness in that regard,
therefore, we want to make sure that we do not fail in our
presentation with regard to matters that are asserted in
the indictment.
THE COURT: Let me interrupt you for just a
moment.
Do you anticipate, Mr. Moscowitz or can you cite
to me any rule or case authority that says I should not take
judicial notice of a portion of the United States Code, if
requested to do so? All that happens when you take judicial
notice is you say, yes, I take judicial notice that 49
U.S.C. section 102 is in the code. Then the parties in
their closing argument argue that if it's otherwise relevant
or they think it is. They argue that to the jury. I don't
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63 FOGG - Cross
know any bar or preclusions to taking judicial notice of the
portion of the Federal regulations or the judicial code.
MR. MOSCOWITZ: I agree, Your Honor. There is
none. Our objection is not taking notice of a specific
regulatory section, it's to the government's summary.
THE COURT: Well, this motion doesn't go to the
jury any way. This motion doesn't go to the jury. I'm not
going to be handing them this. You are going to be able to
argue at the charge conference the relevancy in the charge
conference, the government may be asking me to charge that
for example, just pecking out here, that the United States
department of transportation was a department of the United
States.
They may ask me to charge the jury with that.
With that statement, you may ask me not do that because it
really handled indian affairs or whatever you see? And
then I make a decision. It goes into the charge as I think
you correctly alluded to in your statement when you first
started talking about this. But, so therefore, it doesn't
matter how they have summarized it for my benefit to read
here.
Certainly, anything that is a conclusion of the
government lawyers as to what these provisions of the code
say or do not say, is certainly subject to your view and
your opinion and then we, I suppose, that we have to arrive
UNITED STATES vs SABRETECH, ET AL - 11-23-99
64 FOGG - Cross
at whatever the Court feels is a proper correct delineation
of what that statute says.
So I don't think you need to be concerned or
worried about -- let me just pick on Ms. Miller,
Ms. Miller's interpretation or Mr. Brigham's or whoever,
those sections of the code. I interpret this motion to be
just a way for her to inform me of what those provisions
said or held.
At the charge conference, any argument over
whether or not the department of transportation was the
department of United States will be hashed out. Let me say
this, I think the simplest way to resolve this, is that all
portions of the United States Code and regulations
promulgated thereunder, would be and are proper items for
the Court, and it's just a matter of hammering out what they
say as far as going into the instruction.
But it would not be necessary for the government
to offer proof or opinion of someone, and I don't know who
would be an expert that they could bring in, but they
wouldn't have to have oral testimony that the department of
transportation is the department of the United States.
Does that provide the comfort level of what we are
talking about?
MS. MILLER: I think so, Your Honor. I don't
want to be arguing to the jury and not have something that
UNITED STATES vs SABRETECH, ET AL - 11-23-99
65 FOGG - Cross
I can argue to them that matches what we have alleged in
the indictment.
Not all of these matters as to which we ask the
Court to take judicial notice may be things that we ask the
Court to instruct the jury on. What I do want to have the
ability to argue to the jury. The indictment says the
Department of Transportation is an agency of the department
of the United States. How do we know that ladies and
gentlemen of the jury? We know that because of Title 49,
United States Code, Section 102.
THE COURT: That's better, in your view, than you
know that because the Judge is going to tell you so. I
think the jury is going to believe the Judge more than they
are the regulations, by the end of this trial.
In my experience, the longer these things go I
assuming that the Judge is not a total, well -- the more
the jury starts to listen to the Judge, it's my experience
and I may be wrong, and maybe at the end of this, they're
not going to listen to the Judge at all, but I think if I
tell them that hazardous materials means a substance or
material that is capable of posing an unreasonable risk of
health, safety, property, when transported in commerce, I
think it's going to mean a lot more to this jury if we tell
them that some secretary of transportation in far off
Washington has put a label on something and defined
UNITED STATES vs SABRETECH, ET AL - 11-23-99
66 FOGG - Cross
hazardous materials as using even the same language.
But it may be that you are entitled to send their
waiver around the statute book and argue from it. I think,
right now at least, it seems to me that more appropriately
these should be part of a set of instructions to the jury
where I simply tell the jury that the law, section 49
U.S.C. 102 says or defines so and so.
Now, I don't know. So why don't we think about it
overnight. It's not the purpose of any remarks that I have
made here this evening to indicate that I want to get into a
situation where somebody in closing argument is going to be
able to argue what these things are. It's just a question
of how they come to the attention of the jury.
MS. MILLER: Yes, sir.
THE COURT: If the government wants to be able to
say the Court has taken judicial notice of these, and that
statutes say, thus and so, and read them the statute, they
may be entitled to do that. I don't know. It would seem
to me -- well, in any event, they may be entitled to do
that. But we will look at whatever case authorities they
have this proposition.
Generally speaking, the pronouncement of whatever
the statutes are comes from the Court and not from just
waving a written document around. I don't mean that that's
what you are going to do. But you know holding it up and
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67 FOGG - Cross
saying, well the code says, thus and so. If you are going
to do that, it would be better to hold up something and say
the code says, thus and so, and hold up the code, then say
I, Ms. Miller, tells you the code says that.
I think. Maybe not. Who knows. Do it any way
you want to do it. But we will come back and visit this
tomorrow or whenever you want to. Somebody, if you think
that you want to go the judicial notice route then bring me
some law. Maybe you did in this.
MS. MILLER: I didn't cite law. I did in the
first motion. I made for judicial notice that was with
regard to something from the C.F.R.
THE COURT: Do we have some cases that dealt with
this problem?
MS. MILLER: They dealt with the issue of, as the
Court indicates, the mandatory nature of the Court shall
take judicial notice of the Code of Federal Regulations.
THE COURT: I think that's what I said ten
minutes ago. I think you have a right to having me take
judicial notice. Whether you have a right to have it done
by way of the of the court instructions on the law, or
whether you then can as a procedural matter get up and take
the code and waive it around and send it back to the jury,
I don't know. I guess we are all saying the same thing,
it's just how we do it.
UNITED STATES vs SABRETECH, ET AL - 11-23-99
68 FOGG - Cross
I don't feel comfortable that we brought the thing
to finality on this. I guess I do take judicial notice of
the specific statutory exceptions. I do not necessarily
approve of the language in this particular motion. I don't
disprove of it. I just don't know.
But if you have objections to the language then we
will take that up, probably at the charge conference unless
Ms. Miller feels that she might be caught short with lacking
an element of proof if we don't resolve it before then. In
which case, she'll come back and give me cases that tell me
Judge Posner in Chicago, always does it this way, or Judge
Jackson, does it some interesting ways. He does some
interesting things, doesn't he, findings of fact now and
then conclusion of law a year from now. It got me thinking
that I could really get rid of some cases like that. I
wouldn't have to decide anything about the law, just decide
the facts. It's kind of interesting. I wonder how they do
it?
MS. MILLER: And then, in the middle, urge the
parties to settle.
THE COURT: Right, and then appoint another
active Judge to conduct settlement. Kind of neat. I've
got to start thinking about that. That would save a lot of
time. If I didn't have to worry about the law, I could
whip out whatever I thought the facts are. Based of
UNITED STATES vs SABRETECH, ET AL - 11-23-99
69
course, on the record.
I don't mean to suggest that he did that at all.
He was very conscientious about that. If all I had to do
was make findings of fact and then worry about the law
later, boy, I could sure cut these trials down. He is a
good Judge. And then shift it off to Judge Marcus and say,
come on down here and work out a settlement for me. That
would be pretty good.
Oh well, anything else before we call it a half
day?
MS. MILLER: No, sir.
THE COURT: 9:00 in the morning. Thank you.
COURTROOM DEPUTY: All rise.
(Proceedings were concluded at 5:00 p.m.)
C E R T I F I C A T E
I hereby certify that the foregoing is an accurate
transcription of proceedings in the above-entitled matter.
______________ _______________________________________
DATE ROBIN MARIE CARBONELLO
Official Federal Court Reporter
Federal Justice Building, Ste. 1127
99 Northeast 4th Street
Miami, FL 33132 - (305)523-5108
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