 |
|
1 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF FLORIDA 3 4 UNITED STATES OF AMERICA Case 88-491-CR-KING 5 v. MIAMI, FLORIDA November 17, 1999 6 VOLUME I PAGES 1 TO 265 7 SABRETECH, INC., DANIEL GONZALEZ, and 8 EUGENE FLORENCE 9 JURY TRIAL 10 BEFORE THE HON. JAMES LAWRENCE KING, J. UNITED STATES DISTRICT JUDGE 11 APPEARANCES: 12 FOR THE GOVERNMENT: 13 CAROLINE HECK MILLER, ESQ. 14 GEOFFREY BRIGHM, ESQ. Assistant United States Attorneys 15 99 N.E. 4th Street Miami, FL 33132 16 FOR THE DEFENDANT: 17 SABRTECH, INC. JANE RASKIN, ESQ. 18 MARTIN RASKIN, ESQ. 19 DANIEL GONZALEZ ROBERT DUNLAP, ESQ. MARSHA SILVERS, ESQ. 20 EUGENE FLORENCE JANE MOSKOWITZ, ESQ. 21 NORMAN MOSKOWITZ, ESQ. 22 REPORTED BY: DAVID S. EHRLICH, RPR 23 Official Court Reporter 301 N. Miami, Room 504 24 Miami, Florida 33128-7788 (305) 523-5537 25 Proceedings recorded by mechanical stenography, transcript produced by computer-aided transcription (CAT). BRENNAN - DIRECT (MRS. MILLER) 2 1 (Court convened at 9:17 a.m., out of the 2 presence of the jury.) 3 THE COURT: Good morning. 4 We are all ready. Bring the jury in, 5 please. 6 (The jury entered the courtroom at 9:18 7 a.m.) 8 THE COURT: Thank you, ladies and 9 gentlemen. Be seated please. 10 All right, if you would call Mr. Brennan 11 back to the witness stand, please. 12 (The witness, Robert Brennan, resumed the 13 witness stand.) 14 THE COURT: You are reminded you are still 15 under oath. 16 THE WITNESS: Yes, Your Honor. 17 THE COURT: All right, Mrs. Miller. 18 MRS. MILLER: Thank you, Your Honor. 19 DIRECT EXAMINATION 20 BY MRS. MILLER: (Continued.) 21 Q. Mr. Brennan, you were testifying yesterday about 22 Scott Aviation chemical oxygen generators; were you 23 not? 24 A. Yes, ma'am. 25 Q. Mr. Brennan, did there come a time when Scott BRENNAN - DIRECT (MRS. MILLER) 3 1 Aviation prepared some model oxygen generators AT the 2 request of the United States Attorney's Office? 3 A. Yes. 4 Q. I am handing you what has been marked Government 5 Exhibit 30A and ask if you recognize that item. 6 A. Yes, I do. 7 Q. What do you recognize it as? 8 A. A training aid or model that was assembled at our 9 plant at your request. 10 Q. And it is a model of what? 11 A. This is a model of a McDonnell Douglas type 12 three-person generator. 13 Q. A chemical oxygen generator? 14 A. Yes, ma'am. 15 Q. Does it contain any hazardous materials? 16 A. No, it is a completely empty shell. I drilled 17 holes in it to show people it is empty. 18 Q. Was any further modification made to any part of 19 it, including the percussion cap? 20 A. No, they are all production parts. It is just 21 there are no insides whatsoever, and there is no 22 percussion cap whatsoever. But everything else is a 23 production part. 24 Q. What appears where the percussion cap ordinarily 25 would be? BRENNAN - DIRECT (MRS. MILLER) 4 1 A. An empty space or hole in the generator. 2 Q. You just removed something from the generator 3 with your hand. What is that? 4 A. The safety cap or shipping cap. 5 MRS. MILLER: Your Honor, at this point I 6 would request that Mr. Brennan be given permission to 7 step over to the magnifying machine so that we may 8 place the oxygen generator on that machine for a 9 closer look at it. 10 THE COURT: Granted. 11 Q. Could you place the shipping cap on the surface, 12 first of all. 13 A. Oh, to look at it, you mean. 14 Q. Yes, sir. 15 A. That's looking at it with -- looking at it from 16 like underneath when it is on top of the generator. 17 Q. Hold it in your fingers and rotate it a bit so it 18 can be seen in three dimensions on the screen. 19 Thank you. 20 Put aside the shipping cap and place the 21 actual oxygen generator on the surface. And if you 22 can adjust the zoom so we can see it. 23 A. I don't believe it will fit. Well, just about. 24 Okay. 25 Q. Mr. Brennan, could you point out the mechanical BRENNAN - DIRECT (MRS. MILLER) 5 1 parts of the oxygen generator. There is a pointer 2 there also if that would assist you in doing this. 3 A. Yes, the same as was on the chart yesterday. 4 These are the outlets down here. 5 Q. How many are there on this oxygen generator? 6 A. In this case, there is three of them. That is 7 where the tube would normally be attached. 8 Q. When you say "take the cap off," what are you 9 referring to? 10 A. The green safety caps covering the end of this 11 thing. 12 Q. Those are not the shipping caps you were 13 discussing earlier yesterday; are they? 14 A. No, ma'am. That is this one here. 15 And then, when it mounts to the airplane, 16 it mounts to these three studs. These are relief 17 valves in case anything should happen to kink the 18 hoses while the oxygen is flowing. This is not a 19 pressure nozzle, so there is a pair of relief valves 20 so the pressure won't build up. 21 Then this is a stainless steel shell. 22 And then this is the top end where the 23 actuating mechanism is. 24 This is the pull pin we talked about 25 yesterday. This is the hammer that was down onto the BRENNAN - DIRECT (MRS. MILLER) 6 1 percussion cap. 2 And then you can see the spring back here 3 under the lanyard. This is the spring that forces the 4 hammer down. And this is the lanyard that is actually 5 the pull pin, and the rest of the lanyard is wrapped 6 around -- 7 Q. Zoom out so we can see that lanyard in a fuller 8 view. 9 A. The rest of the lanyard is wrapped around the 10 generator. 11 Q. I am going to ask you about the lanyard in a 12 moment, Mr. Brennan, but tell us first if any labels 13 appear on this -- withdrawn. 14 Before I do that -- 15 MRS. MILLER: Your Honor, the government 16 would like to offer into evidence this model, which 17 has been marked as Government Exhibit 30A. 18 MR. RASKIN: No objection. 19 THE COURT: Government Exhibit 30A is 20 admitted into evidence. 21 (Government's Exhibit 30A in evidence.) 22 BY MRS. MILLER: 23 Q. Mr. Brennan, do any labels appear on Government 24 Exhibit 30A? 25 A. Yes, ma'am. There is two labels front and back. BRENNAN - DIRECT (MRS. MILLER) 7 1 Q. What do the labels say? 2 A. "Notice: Not an operational generator. Training 3 aid only. Contains no hazardous materials." 4 And the same label appears in the back. 5 And it looks like you put a label on here, a yellow 6 one. 7 Q. Now, none of those labels ordinarily appears on 8 any actual Scott generator; does it, Mr. Brennan? 9 A. No, ma'am. 10 Q. Those are labels that are applicable only to this 11 because it is a model; is that correct? 12 A. Yes, that's correct. It is considered a training 13 aid. 14 Q. Now, there are no other labels or warnings on 15 that particular exhibit; are there, Mr. Brennan? 16 A. No, ma'am. 17 Q. And does the absence of any warning label 18 correspond to any type of Scott Aviation oxygen 19 generator? 20 A. Excuse me? I didn't follow the question. 21 Q. Was there a time when there were no warning 22 labels on Scott Aviation oxygen generators? 23 A. Yes. A fixed generators did not have warning 24 labels on, oh, before 1988, I believe. 25 Q. And -- all right, we'll get to post-1988 BRENNAN - DIRECT (MRS. MILLER) 8 1 situation in a bit. 2 Is it then correct -- withdrawn. 3 Mr. Brennan, would you show us please the 4 arrangement of the lanyard on this model oxygen 5 generator. 6 A. Well, as we said yesterday, this is a three- 7 person generator. It is actually three lanyards. 8 There is one lanyard tied through the loop on the end 9 of this pull pin that you can see here. Then there 10 are two other lanyards, have little rings on them, and 11 the lanyards is tied to the ring. The ring is slipped 12 over the pin, so if you pull on any one of the three 13 lanyards, you will pull the pin out. 14 Did you want me to unwrap the lanyards? 15 Q. No, Mr. Brennan. 16 If I might, let me hand you a part of 17 Government Exhibit 30C at this moment out of order. 18 And let me ask if you recognize Government Exhibit 19 30C. 20 A. Yes, I do. 21 Q. What is Government Exhibit 30C? 22 A. Well, it's the top of an oxygen generator 23 without -- like this one, without the percussion cap. 24 But this one is mounted on a plastic base and it has a 25 plastic support so you can handle it without damaging BRENNAN - DIRECT (MRS. MILLER) 9 1 it. 2 Q. And was this model made at the request of the 3 United States Attorney's Office? 4 A. Yes, ma'am. 5 Q. Does it have the exact same type of mechanical 6 mechanism as 30A? 7 A. These are all manufacturing -- production parts, 8 just like this one is; it is just they are mounted on 9 a plastic base so you can handle them. 10 MRS. MILLER: The government offers 30C in 11 evidence. 12 THE COURT: Without objection, 30C is 13 admitted into evidence. 14 (Government's Exhibit 30C in evidence.) 15 BY MRS. MILLER: 16 Q. Now, Mr. Brennan, can you place 30C for a moment 17 on the screen and show us any lanyard, including 18 unwrapping any lanyard if you need to, to show us 19 those rings. 20 A. Yes, ma'am. 21 You see the end of the pull pin. I will 22 pull on the lanyard and pull the lanyard right out. 23 Q. If you could do that away from the screen, 24 because I just want to look at the lanyard at this 25 moment. BRENNAN - DIRECT (MRS. MILLER) 10 1 A. All right. 2 Q. Now, if you could show us the lanyard on the 3 screen, please, so we can get a good look at that. 4 And, would it help if you had a colored 5 paper backing that, since the lanyard is white? 6 A. Yes. 7 It is a stainless steel pin with a hook in 8 the back and a -- I believe it is nylon cord with this 9 little crimp that makes the loop in the cord. 10 Q. Now, this is just one lanyard; is that correct? 11 A. Yes, ma'am. 12 Q. In a generator that services more than one 13 person, is the lanyard arranged differently? 14 A. No. This is in every generator. When you have 15 more than one lanyard, you have another cord, just the 16 same cord. And instead of being through this loop, it 17 is through a little brass ring. The brass ring slips 18 on the end. If you have a two-man generator, you put 19 one of them on; if you have a three-man generator, you 20 put two of them on; a four-person generator, you put 21 three of them on. 22 Q. Show us that with the exhibit in front of you. 23 A. Oh, yes. 24 THE COURT: If that happens at 30,000 feet, 25 and you got 30 seconds to get that thing on your face, BRENNAN - DIRECT (MRS. MILLER) 11 1 what happened? 2 THE WITNESS: That is why we shipped them 3 wrapped around the generator instead of wrapped around 4 your hand, like this one was. Actually, there is much 5 more lanyard here than you need. You put them in and, 6 depending on what seat it is or what kind of aircraft, 7 you are supposed to cut the lanyard off according to 8 the instruction manual and tie the mask on. 9 So the lanyards, we ship them all to 10 McDonnell Douglas full length. But when they put them 11 in different places in the airplane, they cut them off 12 and tie it to whatever length the mask has to be. 13 THE COURT: I am glad to hear that. 14 A. The general idea is, that is a single lanyard 15 (exhibiting); this is an add-on lanyard: This is the 16 little ring. And you slip it over that. Now you have 17 a setup for a two-person generator. If it is going to 18 be a three-person generator, you put the first one 19 on. 20 We do this at the factory, though. This is 21 the way it is shipped out. 22 The second one goes on, then you install 23 that in the generator. If it is going to be a four- 24 person generator, you need four lanyards. 25 And it is set up like that. BRENNAN - DIRECT (MRS. MILLER) 12 1 Then we put them in the actuating 2 mechanism, take them around the top of it, and then 3 take the slack up around the generator so we don't 4 tangle them, and put a rubber band on. 5 Q. Mr. Brennan, could you take the pin that you have 6 now put the lanyards on and insert it back into 30C 7 for a moment. 8 A. Yes, ma'am. 9 It would help if I had the tool. 10 Thank you. (Pause) 11 Q. The more lanyards in there, the harder it is -- 12 A. Yes. 13 Q. Do you want to take off some of the lanyards and 14 do it as a two-person -- 15 That is not how they do it in the factory; 16 is it, Mr. Brennan? 17 A. No. 18 THE COURT: Maybe we can send it back and 19 get it fixed and bring it back a little quicker than 20 this. 21 Have him tell it to us. It is hard to do 22 here in the courtroom. 23 A. I was a little nervous. 24 Here it is. 25 Q. If you can turn your attention back for a moment BRENNAN - DIRECT (MRS. MILLER) 13 1 to Exhibit 30A. 2 And, again, with regard to the arrangement 3 of lanyards on 30A, is this how the generator is 4 arranged as it is shipped from the factory with the 5 lanyard wrapped like that? 6 A. Yes, ma'am. 7 Q. Why does Scott send the generators with the 8 lanyards wrapped in that fashion? 9 A. There is two reasons. We discussed we don't want 10 them tangled, to keep them straight. But the big 11 reason is, if you want to make sure there is no slack 12 in the lanyard here that could catch on something, 13 pull the pin. 14 Q. Now, does the wrapping of the lanyard protect the 15 oxygen generator from initiating? 16 A. To the extent that it -- as long as the cap is 17 on, it doesn't really matter whether the lanyard is 18 pulled; it won't initiate. But it is basically so you 19 don't have to go through what I just went through to 20 try to put the pin back. 21 Q. What is the mechanism on the generator that is 22 designed to prevent initiation? 23 A. That's this little cap, yellow cap here. 24 Q. Mr. Brennan, if we can set aside, please, 30A for 25 a moment and return to the other exhibits. BRENNAN - DIRECT (MRS. MILLER) 14 1 First of all, with regard to 30A, when it 2 was originally made, can you use that to demonstrate 3 for me how the firing pin, pull pin, can be pulled? 4 A. This is 30A? 5 Q. Yes, sir. 6 A. Yes. 7 Q. And was that demonstration performed several 8 times? 9 A. Oh, yes. 10 Q. Is an oxygen generator designed to be used 11 several times? 12 A. No. It is a one-time operable device. 13 Q. What happened to 30A if it is used several times? 14 A. You try to put the lanyard back in. This black 15 guide tube was leaned on with the palm of the hand and 16 it was pulled out. 17 Q. So did you make some repair to 30A? 18 A. It took some superglue in your office and we put 19 it back. 20 Q. In response to that, did you cause this sturdier 21 version of a holder for that black tube to be made? 22 A. Yeah. You make something you can handle over and 23 over and over again. I asked my shop to put a support 24 on the guide tube so when you lean down with the palm 25 of your hand, you wouldn't snap it off. BRENNAN - DIRECT (MRS. MILLER) 15 1 Q. Now, Mr. Brennan, if you could please use -- 2 withdrawn. 3 Did you bring one other model of a part of 4 an oxygen generator? 5 A. Yes. The top alone. 6 Q. Is that item marked as an exhibit? 7 A. Yes. 30D. 8 MRS. MILLER: Government offers 30D in 9 evidence. 10 MRS. MOSKOWITZ: Can we just see it, Your 11 Honor? 12 MRS. MILLER: (Exhibiting same to 13 Mrs. Moskowitz.) 14 MRS. MOSKOWITZ: No objection, Your Honor. 15 THE COURT: Government Exhibit 30G is 16 admitted into evidence. 17 MRS. MILLER: Your Honor, that's 30D. 18 THE COURT: D like in David? 19 MRS. MILLER: Yes, sir. 20 THE COURT: All right. Admitted into 21 evidence. 22 (Government's Exhibit 30D in evidence.) 23 BY MRS. MILLER: 24 Q. I am handing you 30D, and I would ask you to put 25 that on the base, and if you could please remove the BRENNAN - DIRECT (MRS. MILLER) 16 1 shipping cap from it. 2 A. Yes, ma'am. 3 Q. Can you show us, please, and hold the generator 4 as you are showing us, the actual firing mechanism 5 motion of an oxygen generator as the lanyard is 6 pulled? 7 A. Yes. I think so. 8 Q. And just explain to us verbally what you are 9 doing. 10 A. And you want me this time to pull the pin? 11 Q. Yes. And if you can get it as lit so that the 12 pin is as visible as possible, I would appreciate it. 13 THE COURT: Watch your thumb. 14 A. This is the spring we talked about. This is the 15 pull pin holding the hammer back. This is the 16 hammer. This is where the percussion cap goes; but it 17 is not there now, it is an empty hole. This is the 18 guide tube. This is the lanyard. 19 Q. Before you pull it, Mr. Brennan, on this one, the 20 firing pin appears to go clear across that little 21 channel over to the other edge; is that correct? 22 A. The pull pin, you mean. 23 Q. Yes, sir. 24 A. Yes, ma'am. 25 Q. Does that appear differently depending on whether BRENNAN - DIRECT (MRS. MILLER) 17 1 there are more than one lanyard on that oxygen 2 generator? 3 A. Yes, because the lanyard rings go in here, and 4 then the more lanyard rings you have, the further to 5 the left the pull pin extends, the less to the right 6 the pull pin extends. 7 Q. Now, could you, as slowly as possible, please 8 pull on the lanyard and explain to us what you are 9 doing as you do it. 10 A. All right. The spec on this is 1 to -- at that 11 time was 1 to 4 pounds, now it is 1 to 7 pounds. The 12 pull on the lanyard is supposed to pull the pull pin 13 out. I will try to do it as slow as I can. 14 There it goes. See it moving? 15 That's it. 16 Q. Thank you, Mr. Brennan. If you could take your 17 seat, please. 18 (Witness resuming the witness stand.) 19 Q. Mr. Brennan, does an oxygen generator have a 20 limited life? 21 A. Yes, they do. 22 Q. And what do you mean by a limited life for this 23 device? 24 A. It's what they call a hard-time component. It 25 has to be removed from service a certain period of BRENNAN - DIRECT (MRS. MILLER) 18 1 time from its date of manufacture. It is called a 2 hard-time component. You can't repair it, overhaul 3 it, zero-time it. 4 Q. What happens after this limited life? Does it 5 stop working? 6 A. Well, actually it is, the statistical probability 7 that it might not work starts to increase. It is not 8 that it stops working. You can't test the oxygen 9 generators individually. 10 Q. And why is that, if you can tell us, please. 11 A. Well, if you actuate them, you use them up and 12 you have to throw them away. They are built in 13 batches, and you take a group out of the batch and 14 test them to make sure they all work. And that gives 15 you a reliability that they are going to work. 16 But as time passes and they sit in the 17 airplane, the airplane takes off and lands, and 18 vibration and everything -- it is a solid core. You 19 start to get -- you start to worry about the core 20 being affected by the vibration. 21 Q. When you say "the core," what are you talking 22 about? 23 A. That funnel-shaped thing on the diagram 24 yesterday, the actual sodium chlorate core where the 25 reaction takes place. BRENNAN - DIRECT (MRS. MILLER) 19 1 MRS. MILLER: If I might refer the witness 2 to the chart, Your Honor? 3 THE COURT: All right. 4 Q. Mr. Brennan, what on this chart are you referring 5 to as the core? 6 A. From the flash down to the bottom. 7 Q. You are talking about the light gray structure? 8 A. Yes, ma'am. 9 Q. And what is the physical nature of that 10 structure? You told us yesterday the chemicals, but 11 can you tell us, is it gooey? Is it solid? What is 12 it like in there? 13 A. It is actually pressed granules, pressed powder. 14 Sodium chlorate is related to sodium chloride, which 15 is table salt. It is similar in nature that it is a 16 powdery material you press into that shape, but it is 17 not solid like cast metal. 18 Q. And what is the concern about what could happen 19 to this material over time with the vibration, etc., 20 as you mentioned? 21 A. You may start to get some small fissures or 22 cracking in the sodium chlorate core. And if you got 23 that, the reaction may not continue. In other words, 24 you may get a situation where the generator produces 25 oxygen for a couple of minutes and then it might stop, BRENNAN - DIRECT (MRS. MILLER) 20 1 it might not. It depends on whether the reaction 2 front can jump over whatever cracks are there. 3 And then another concern is that although 4 it is a stainless steel case and all sealed up, you 5 start to worry about corrosion. Because if you get a 6 leak through the case and you get outside air into the 7 generator, that's why you have check valves in the 8 outlet. 9 This material is what they call 10 hydroscopic. It picks up water. And if it picks up 11 water, then it may not decompose; the reaction may not 12 go the way we want it to go. 13 So you start to worry about both the 14 possibility of corrosion as time passes, and the 15 possibility of mechanical fractures opening up in the 16 core due to vibration. 17 Q. And what is the designated life limit of a 18 chemical oxygen generator such as is made by Scott 19 Aviation for McDonnell Douglas? 20 A. Presently the life limit -- 21 Q. Let me ask you -- I should have prefaced my 22 question. 23 What was that life limit during the time 24 March through May of 1996? 25 A. '96. It had already been extended. It was 12 BRENNAN - DIRECT (MRS. MILLER) 21 1 years at that point. 2 Q. And what happens to an oxygen generator once it 3 is more than 12 years old? 4 A. Well, you can't fly it in an airplane anymore. 5 And you have to dispose of it. 6 Q. In what way does it have to be disposed of? 7 A. Our military safety data sheet indicates that you 8 expend them and dispose of them as barium-containing 9 material. 10 Q. And do they lose their hazardous nature at that 11 point? 12 A. Well, when you expend them, you go from a solid 13 oxidizer, which is a hazardous material, to table 14 salt; but you create soluble barrier salts from the 15 barium salts we put in there. Barium are considered 16 by the EPA, barium salts, they can get into the ground 17 water, so it still hazardous material for disposal. 18 You have to declare it as barium-containing material 19 and dispose of it according to the rules that the EPA 20 has for disposing of that. 21 Q. What about an oxygen generator that is more than 22 12 years old, but that has not been expended? 23 A. Well, it is a cannister basically of sodium 24 chlorate, and that is a hazardous material. And you 25 have to declare that as a hazardous material and BRENNAN - DIRECT (MRS. MILLER) 22 1 dispose of it according to the rules for that. 2 Q. Are these materials wastes? 3 A. When you go to dispose of a generator, the 4 generator is a waste. 5 Q. What is the nature -- withdrawn. 6 Now, you have told us that at a certain 7 time Scott generators started to carry warning labels; 8 is that correct? 9 A. Yes, ma'am. 10 Q. Have you brought with you a sample of a Scott 11 oxygen generator bearing such a warning label? 12 A. I have an outer shell of an actual generator 13 there. 14 Q. I am handing you what has been marked as 15 Government Exhibit 30B (exhibiting same to defense 16 counsel.) 17 Do you recognize Government Exhibit 30B? 18 A. Yes, ma'am. 19 Q. What is it? 20 A. This is the outer shell of what used to be -- I 21 believe it is a Douglas, McDonnell Douglas two-man 22 generator. 23 Q. And has any modification been made to it? 24 A. Yes. I cut off -- had my shop cut off the end of 25 it, and we scraped out all the chemicals. And then we BRENNAN - DIRECT (MRS. MILLER) 23 1 took the -- it had been expended, and we took the 2 remains of the percussion cap and drilled it out. 3 Q. Accordingly, that Exhibit 30B does not contain 4 any chemicals; is that correct, Mr. Brennan? 5 A. That's correct. 6 MRS. MILLER: The government offers 30B 7 into evidence. 8 MRS. MOSKOWITZ: No objection, Your Honor. 9 THE COURT: 30B admitted into evidence. 10 (Government's Exhibit 30B in evidence.) 11 BY MRS. MILLER: 12 Q. Are there certain labels on that oxygen 13 generator? 14 A. Yes, there are. 15 MRS. MILLER: And, Your Honor, I would ask 16 Mr. Brennan bring the generator over to the machine so 17 we can show the labels. 18 THE COURT: All right. 19 Q. Put it on the machine and tell us if there is any 20 writing on there in Magic Marker. 21 A. Yes, there is. 22 Q. Was that writing put on there for the purpose of 23 this case as opposed to being on there originally? 24 A. No, that happened to be on there when I located 25 the expended generator. BRENNAN - DIRECT (MRS. MILLER) 24 1 Q. What does that writing say? 2 A. "Expended 2M DCA," which is -- 2M would be two- 3 man or two-person, and DCA is Douglas Aircraft 4 Company. And I don't know who, but at the time it was 5 expended someone marked it with a Magic Marker, 6 "expended, two-person, McDonnell Douglas." 7 Q. So that would not appear on the original one; is 8 that correct? 9 A. Yes. 10 Q. And there is also a little yellow government 11 sticker on there; is there not? 12 A. Yes. 13 Q. And that wouldn't appear on the original one, 14 correct? 15 A. No, ma'am. 16 Q. Are there other labels on that generator? 17 A. Yes. 18 Q. How many? 19 A. Two labels. 20 Q. Would those labels have been on the generator 21 when it was shipped out from Scott Aviation? 22 A. I'm not sure this generator was ever shipped out, 23 but this is the label we put on the ones that are 24 shipped out. 25 Yes, this one was built to be shipped out, BRENNAN - DIRECT (MRS. MILLER) 25 1 but apparently we used it up in a test rather than 2 shipping it. 3 Q. Now, would you please tell us first about the 4 black label that you are focusing on right now and 5 tell us what that label is? 6 A. It is actually a green label. It is green and 7 silver, and the machine doesn't want to focus on it. 8 Well, that is pretty good. 9 That is called the Iden plate, and that 10 gives the contractual required information, spec 11 required information for this particular generator. 12 Q. Now, that plate, how long was that type of plate 13 -- Withdrawn. 14 When was that type of plate -- the type of 15 plate we are looking at right now, did that appear on 16 Scott Aviation oxygen generators prior to this time in 17 the mid to late 1980s that the warning labels started 18 to be affixed? 19 A. Yes. An Iden plate was put on the generators 20 and, you said, the mid 1980s. Yes, of course. 21 Q. What about in the early 1980s, was there such 22 a -- 23 A. Yes, ma'am. 24 Q. Do you know of a time when Scott ever shipped 25 generators without an Iden plate? BRENNAN - DIRECT (MRS. MILLER) 26 1 A. It is required by the Boeing specifications. So 2 I don't believe we could ship them without an Iden 3 plate. The plate may have changed in size over the 4 years, but we were not allowed to ship them without 5 the plate. 6 Q. You mentioned Boeing specifications -- 7 A. I meant McDonnell Douglas. We also manufacture 8 for Boeing. 9 Q. Now, this type of plate, then, would have 10 appeared on old oxygen generators as well as current 11 oxygen generators; is that correct? 12 A. Yes, that is correct. 13 Q. Why did you not put such a plate on Government 14 Exhibit 30A, the training aid? 15 A. Well, because it doesn't have a serial number. 16 It is a training aid. 17 Q. Now, is there another label that appears on 18 Government Exhibit 30B? 19 A. Yes, ma'am. 20 Q. And would you please show us that label. 21 A. Yes, ma'am. 22 Q. Now, when did that label start to be affixed to 23 Scott Aviation generators? 24 A. I believe the beginning of 1988, ma'am. 25 Q. And did that situation continue to be applied to BRENNAN - DIRECT (MRS. MILLER) 27 1 Scott Aviation chemical oxygen generators, beginning 2 in 1988 through and including, at least, May of 1996? 3 A. Yes. It has been continuous since '88. 4 Q. And is this the label that has been used during 5 that time? 6 A. Yes, it is. 7 Q. Could you please read for us the label. 8 A. "Warning: This unit gets hot. When removing 9 unit, install safety cap over primer. Do not pull 10 lanyard. If activated, place on surface that won't 11 burn." And then the label number and the print date 12 number or the text date number. 13 Q. Thank you, Mr. Brennan. If you could resume your 14 seat, please. 15 Scott Aviation's practices with regard to 16 the wrapping and packaging of oxygen generators that 17 it shipped out during the time period between January 18 and the end of May, 1996, turn your attention to that 19 time. 20 A. All right. 21 Q. Could you please describe to us -- well, 22 withdrawn. 23 Let me show you one exhibit before we do 24 that. Excuse me. 25 How did Scott Aviation identify new oxygen BRENNAN - DIRECT (MRS. MILLER) 28 1 generators it was shipping out during the time period 2 January through May of 1996? 3 A. Yes. 4 THE COURT: Could I interrupt you just a 5 minute. 6 May I see, Mrs. Miller, and one 7 representative from the defense counsel. 8 Mrs. Moskowitz, you are closest. Just 9 briefly here. 10 Don't worry, Mr. Ehrlich. You can't get 11 it. Won't worry. 12 (Sidebar off the record.) 13 BY MRS. MILLER: (Continued.) 14 Q. Mr. Brennan -- 15 (Off-the-record discussion between the 16 government and defense counsel, Mrs. Moskowitz and 17 Mr. Dunlap.) 18 Q. I am handing you what has been marked as 19 Government Exhibit 53C, and I am just going to ask you 20 whether you can identify it, without going on and 21 telling us what is in it, please. 22 A. You mean if I can identify the things in the 23 picture? 24 Q. Do you recognize any of the things in the 25 picture? BRENNAN - DIRECT (MRS. MILLER) 29 1 A. Yes, I do, ma'am. 2 Q. And do you recognize any of them as oxygen 3 generators? 4 A. Yes, ma'am. 5 Q. And do any of those oxygen generators bear a 6 warning label on them? 7 A. Yes, ma'am. 8 Q. Do you recognize the warning label? 9 A. Yes, I do. 10 Q. Is that the warning label that Scott Aviation 11 affixes on oxygen generators such as the one on 12 Exhibit 30B? 13 A. It's the one we just saw, Your Honor. 14 MRS. MILLER: The government is not 15 offering this exhibit at this time, Your Honor. 16 Q. Now, Mr. Brennan, could you please describe to us 17 how Scott Aviation packages oxygen generators as it 18 ships them out of the plant. 19 A. In what time frame? 20 Q. Thank you. During the time period January 21 through May of 1996. 22 A. At that time, the oxygen generators were placed 23 in a plastic bag; this is after they are like you saw 24 them, with the cap on, the lanyards, inspection done, 25 everything was done. You put them in the plastic bag; BRENNAN - DIRECT (MRS. MILLER) 30 1 the plastic bag was closed, laid down on a piece of 2 special cardboard about this size (indicating) with 3 four creases, and they were placed in a shrink- 4 wrapping machine. 5 You take a -- the machine takes a piece of 6 plastic, heats it up, and then there is a vacuum table 7 down below. The frame comes down, the vacuum is 8 turned on, and this cardboard that has pinholes in it, 9 it sucks the plastic down onto the cardboard where it 10 sticks. Now you have the generator trapped under the 11 sheet of clear plastic. 12 Then you take and fold it up by the 13 creases, so you make the flat sheet into a square, 14 hollow tube. You put a piece of tape on the seam of 15 the tube, and that makes the inner package. 16 Then you take up to twelve of these, and 17 put them in a spec box. You put a cap, a piece of 18 cardboard down in the bottom of the box, stick the 19 twelve tubes. They don't all have to be generators, 20 some could be empty if you are shipping out ten or 21 nine. You put another cap, which is a sheet of 22 cardboard, on top of them. You take the flaps, fold 23 them in, run the tape on them, put the labels on them, 24 and you are ready to go. 25 Q. Mr. Brennan, I am handing you what has been BRENNAN - DIRECT (MRS. MILLER) 31 1 marked as Government Exhibits 48A and 48B, and I ask 2 you if you recognize any of the objects in those 3 photographs. 4 A. Yes, I do. 5 Q. What do you recognize them as? 6 A. Apparently it is four of our boxes. One shows 7 them with the top open so you can see the little 8 square tubes. This one shows them with the flaps 9 pushed down. 10 Q. And which one is open and one which is closed, so 11 we can have it for the record? 12 A. 48A shows the flaps down; and 48B shows the flaps 13 pulled back. 14 Q. Do these photographs illustrate the packing 15 method you just described? 16 A. Yes, they do. 17 MRS. MILLER: Your Honor, we are not 18 offering these photographs at this time. 19 Q. Let me hand you back 48A for the moment, the 20 exterior view of those boxes. 21 Does the yellow placard oxidizer label 22 appear on that box? 23 A. Yes, they do, on all of them. 24 Q. And is it clearly visible? 25 A. Yes, it is. BRENNAN - DIRECT (MRS. MILLER) 32 1 MRS. MOSKOWITZ: Objection, Your Honor. 2 They are testifying about an exhibit that -- 3 THE COURT: The objection is sustained. 4 The document is not in evidence. Don't tell us what 5 is in it. 6 Q. Mr. Brennan, I am handing you what has been 7 marked as Government Exhibit 30E, and I would ask you 8 if you recognize that. 9 A. Yes, I do. 10 Q. What is 30E? 11 A. 30E is what is called a placard. It is a device 12 required to be put on the outside of this kind of 13 shipment. 14 MRS. MILLER: Government offers -- 15 withdrawn. 16 Q. Was that placard in use in that form during the 17 time period March through May of 1996 on Scott 18 Aviation shipments? 19 A. Yes, it was. 20 MRS. MILLER: Government offers 30E in 21 evidence. 22 MRS. MOSKOWITZ: Objection, Your Honor. 23 Foundation. 24 THE COURT: Sustained. There is no 25 showing -- connection with the defendants in this BRENNAN - DIRECT (MRS. MILLER) 33 1 case. 2 Q. I am handing back to you Government Exhibit 48A, 3 Mr. Brennan. Do you see that placard, Government 4 Exhibit 30E, depicted in 48A? 5 A. Yes, ma'am. 6 MRS. MILLER: Government offers 30E in 7 evidence. 8 MRS. MOSKOWITZ: Objection. Same 9 objection, Judge. 10 THE COURT: Marshal, would you hand the 11 document up and let me take a look at it and see what 12 it is? 13 Hand it up here, Mrs. Miller. 14 MRS. MILLER: I'm sorry. Two people were 15 speaking. 16 THE COURT: Well, when I tell you 17 something, let's get it done. 18 MRS. MILLER: Yes, sir. 19 THE COURT: You are offering 30E into 20 evidence, is that correct? 21 MRS. MILLER: Yes, sir. 22 THE COURT: And the objection was made on 23 foundation. The objection is sustained. 24 All right, you can hand it back to her and 25 she can show it to whoever she wants to. BRENNAN - DIRECT (MRS. MILLER) 34 1 MRS. MOSKOWITZ: I am going to withdraw my 2 objection, Your Honor. 3 THE COURT: All right. Let's -- please, 4 the time is -- 5 MRS. MILLER: Your Honor, it is my fault. 6 If I had shown it to Mrs. Moskowitz first, we wouldn't 7 have the problem. 8 THE COURT: Well, whoever's fault it is, we 9 are sort of wasting time. 10 All right. She has shown you an exhibit. 11 And what is your question? 12 Exhibit 30A, I believe it is, is admitted 13 into evidence, without objection. All right. 14 (Government's Exhibit 30A in evidence.) 15 THE COURT: Let's move on. 16 BY MRS. MILLER: 17 Q. Mr. Brennan, you have told us that oxygen 18 generators -- how oxygen generators initiate. Is 19 there any other manner in which an oxygen generator 20 can initiate? 21 A. Yes. 22 Q. What is that? 23 A. Well, if you get it hot enough, physically hot 24 enough to start the reaction, even though you don't 25 pull the pin and hit the percussion cap, the generator BRENNAN - DIRECT (MRS. MILLER) 35 1 will start producing oxygen. 2 Q. Are you speaking of heat that is generated -- 3 that is applied from the inside or the outside of the 4 generator? 5 A. It doesn't really matter, as long as you apply 6 the heat. But I don't know how you get the heat on 7 the inside. 8 Typically you think about heat coming from 9 the outside getting into it, heating it up. And you 10 get to the point where you've got it hot enough so the 11 reaction starts, and it starts and produces oxygen. 12 Q. Mr. Brennan, what, if any, role did you have with 13 regard to the events and the aftermath of the crash of 14 ValuJet flight 592? 15 A. Well, the NTSB requested our company to 16 participate in the accident investigation, and I was 17 sent to Miami and I reported to the hazardous material 18 subcommittee chairman of the NTSB, Mr. Henderson, and 19 I worked with Mr. Henderson until the NTSB released us 20 from the investigation. 21 Q. During the course of that investigation, did you 22 have occasion to observe any portions of oxygen 23 generators? 24 A. Yes, I did. 25 MRS. MILLER: If I could have a moment to BRENNAN - DIRECT (MRS. MILLER) 36 1 show these to counsel, Your Honor, please? 2 THE COURT: All right. 3 (Pause) 4 Q. I am handing you five reproductions of certain 5 photographs, Mr. Brennan, and I would ask you to turn 6 your attention first, please, to the small pictures, 7 59O and 59I. 8 A. Yes. 9 Q. Do you recognize any of the items depicted in 10 those photographs? 11 A. Yes, ma'am. 12 Q. What do you recognize them to be? 13 A. 59O shows a pair of very damaged Scott oxygen 14 generators. 15 And 59I shows a single very mangled Scott 16 oxygen generator. 17 Q. And do you recognize those as Scott generators? 18 A. Yes, I do. 19 Q. Would you please turn your attention now to 54E, 20 54K and 54F. 21 A. Yes, ma'am. 22 Q. Do you recognize anything of those photographs? 23 A. (Pause while examining photographs.) 24 Yes, I do. 25 Q. What do you recognize in those photographs? BRENNAN - DIRECT (MRS. MILLER) 37 1 A. Again, damaged, crushed and torn Scott oxygen 2 generators. 3 Q. And how do you know that they are Scott oxygen 4 generators? 5 A. Well, you can see the labels in most of the 6 pictures; and in some of them -- you can even see a 7 little inspection stamp in one of them here. 8 They are Scott oxygen generators, as near 9 as I can tell. 10 Q. And at the top of those pictures does there 11 appear certain information corresponding to the labels 12 on those Scott oxygen generators? 13 A. Well, the labels aren't all that clear. There is 14 information that would correspond. There is a serial 15 number up on top of these. It is different. 16 There is one where you can make the serial 17 number out. The others, I would need a magnifying 18 glass. But there is a serial number up on the top. 19 Q. Which is the one you can make the serial number 20 out? 21 A. The one that says, "Oxygen generator" -- 22 THE COURT: He has been testifying for five 23 minutes about a document that is not yet in evidence. 24 MRS. MILLER: I am trying to lay the 25 foundation. BRENNAN - DIRECT (MRS. MILLER) 38 1 THE COURT: Ask him if he knows what they 2 are, if he recognizes it and identifies it. Then you 3 offer it into evidence. If he tells us what it is, 4 which tape is missing out, what is there, what is not, 5 then you don't need it in evidence. 6 Is there any objection to these documents, 7 these photographs? 8 (Off-the-record discussion among counsel.) 9 THE COURT: Hearing none, they are admitted 10 into evidence as Government Exhibit Number -- what 11 number? 12 MRS. MILLER: 59O, 59I, 54E, 54K and 54F. 13 THE COURT: They are each admitted into 14 evidence on those numbers. 15 (Government's Exhibits 59O, 59I, 54E, 54K 16 and 54F in evidence.) 17 THE COURT: Now he can talk about them and 18 show them to the jury or anything you want to do with 19 them. 20 BY MRS. MILLER: 21 Q. Mr. Brennan, so that the jury can see, I am 22 placing a larger version of 54E on the easel. If you 23 can just use your smaller version on the witness 24 stand. 25 A. Yes, ma'am. BRENNAN - DIRECT (MRS. MILLER) 39 1 Q. Would you tell us, please, in which of these four 2 pictures do you see the serial number? 3 A. In the lower left-hand corner of the four is a 4 close-up of a Scott Iden label. And in the second box 5 from the top is where the serial number goes, and you 6 can read it. 7 Q. Now, Mr. Brennan, I would ask you to step down to 8 the easel. I am going to give you the pointer, 9 please. 10 And with regard to Government Exhibits 54K 11 and 54F, which are leaning against the easel, could 12 you look at them, please, and tell us what, if any -- 13 where, if at all, you can see any remains of the 14 percussion cap. 15 A. Just the top or both pictures ma'am? 16 Q. First do 54K. 17 Could you indicate to us where, if at all, 18 on this photograph you see anything that relates to 19 the percussion cap of the Scott Aviation generator. 20 A. Yes. Clearly in the top two views, that's a 21 copper-colored circle here and here. This is the same 22 generator, just a closer view. That's the percussion 23 cap. 24 Q. Is the percussion cap depicted in that picture, 25 is it convex, that is rounded out, or concave, or BRENNAN - DIRECT (MRS. MILLER) 40 1 rounded in? 2 A. It is slightly convex. It is slightly rounded 3 out. 4 Q. What does that indicate with regard to the 5 condition of the percussion cap? 6 A. Well, that is what they look like when they had 7 not been struck. Looking at the picture, I would say 8 that one has not been struck because it looks like 9 what it should look like when they are not struck. 10 Q. Now I would ask you to turn your attention, 11 please, to 54F. And tell us where, if at all, on that 12 photograph, show us with the pointer, is there any 13 indication depicting a Scott Aviation percussion cap? 14 A. In three of the four, you can see it here at the 15 end of the -- this is a closer view, and it simply got 16 really, really close here. 17 That's it. It is inside that inner circle, 18 that round kind of coppery-colored thing. 19 Q. And is the percussion cap you see in 54F convex 20 or concave? 21 A. In this photograph it appears definitely 22 concave. That little round little mark in the center 23 right there (pointing), it is dished in. 24 Q. What is the significance of the concave shape? 25 A. That's the way they look when they have been BRENNAN - DIRECT (MRS. MILLER) 41 1 struck by the hammer. 2 Q. If you could resume your seat, please, 3 Mr. Brennan. 4 A. (Resuming seat.) 5 Q. Mr. Brennan, among the wreckage of the flight 6 ValuJet 592, what, if anything, did you observe with 7 regard to any burning of oxygen generators, their 8 physical structure? 9 A. Well, there were several that appeared to have 10 soot on them. 11 MRS. MOSKOWITZ: Objection. Foundation. 12 THE COURT: Yes. 13 Q. Let me just ask about -- withdrawn. 14 With regard to wreckage that you saw from 15 ValuJet crash 592, and specifically wreckage you 16 recognized as oxygen generator pieces, can you 17 describe to us physically what, if anything, you saw 18 about any condition of stainless steel? 19 A. Well, most of the pieces I looked at were badly 20 crushed and torn. One of the pieces that I looked at 21 had what they sometimes refer to as lacing, in the 22 edge of it. Little round holes in the stainless steel 23 that were not torn or punched. It looked like the 24 stainless steel -- 25 Q. Don't tell us what it looked like. Physically BRENNAN - DIRECT (MRS. MILLER) 42 1 describe it. 2 A. The edge of the stainless steel showed little 3 round holes. If you hold it right up to the light, 4 you can see the little holes; and they were not sharp- 5 edged, they were round-edged holes. 6 Q. So they were not mechanically produced; is that 7 what you are saying? 8 A. Yes. 9 MRS. MILLER: I have no further questions 10 for this witness, Your Honor. 11 THE COURT: All right. 12 Mrs. Moskowitz, for the defendant 13 Florence. 14 CROSS-EXAMINATION 15 BY MRS. MOSKOWITZ: 16 Q. Mr. Brennan, you have worked with Scott your 17 entire career, correct? 18 A. Well, I was a professional photographer before I 19 went to work for Scott. 20 Q. You were still in college when you went to work 21 for Scott? 22 A. I was -- yes, I was in college at the time. 23 Q. And you have worked there for 35 years. 24 A. Thirty-four, yes, ma'am. 25 Q. And you are Scott's party representative to the BRENNAN - CROSS (MOSKOWITZ) 43 1 NTSB investigation of this accident, correct? 2 A. That's correct. 3 Q. And you know that Scott has been sued in various 4 civil actions by family members, correct? 5 A. I know that Scott has been sued as a result of 6 that crash, yes, ma'am. 7 Q. You were the Scott representative in depositions 8 in that case, correct? 9 A. Yes, ma'am. 10 Q. And, of course, it is in Scott's interest to have 11 somebody else be liable for that accident, right? 12 A. I'm not sure I follow you, ma'am. 13 Q. Well, those are litigations trying to get money, 14 right? People are seeking compensation, correct, for 15 their losses? 16 A. Yes, I believe so. 17 Q. And they are seeking compensation from Scott. 18 A. We are named in the suit. That's all I can tell 19 you. 20 Q. As a defendant, correct? 21 A. Yes. 22 Q. Sir, oxygen generators are not designed to be 23 dangerous; are they? 24 A. They are not -- they are designed to give oxygen 25 when they are activated. BRENNAN - CROSS (MOSKOWITZ) 44 1 Q. They are designed to ride just a few inches above 2 passengers' heads in airplanes, correct? 3 A. Yes, ma'am, that is where they are put, and also 4 put in seat backs. 5 Q. And when they are put either in seat backs or 6 above passengers' heads, they don't have shipping caps 7 or safety caps on them then; do they? 8 A. That's right. If they did, they wouldn't work. 9 Q. Right. So, if they had them on there, when you 10 pulled them, you wouldn't get any oxygen, right? 11 A. That's correct. 12 Q. So they would have to be up there without 13 shipping caps? 14 A. That is correct. 15 Q. And you don't want -- they get jostled around up 16 there, right? 17 A. Not to my knowledge. They are subject to some 18 vibration, but they are mounted in a passenger unit, 19 passenger service unit, and they are not jostled, as 20 far as I understand it. 21 Q. Sir, didn't you tell that -- didn't you speak 22 with Miss Fruge in July of 1996, and didn't you tell 23 her the generators have a statistically determined 24 finite life due to the physical jolting and jostling 25 of landing and taking off of the aircraft? BRENNAN - CROSS (MOSKOWITZ) 45 1 A. The aircraft gets jostled. We see the vibration 2 result of it. That is one of the big factors in 3 setting the -- 4 Q. Because the oxygen generators might have 5 become -- might get loose, might lose their 6 effectivity, something could happen to them, so you 7 want to make sure they can operate right? 8 A. You have in there, "getting loose." As far as I 9 know, the oxygen generators don't -- can't get loose 10 when they are up in the overhead. 11 The vibration that is transmitted to the 12 oxygen generator by the landing, take off and general 13 vibration of the plane, is what we are concerned 14 about. And there is a vibration spec on the 15 generators. But, as far as I know, the generators are 16 certainly not intended ever to be loose in the PSU 17 compartments. 18 Q. But they get these vibrations, landing, take off, 19 turbulence, correct? 20 A. Correct. 21 Q. You don't anticipate those will set them off 22 accidentally, correct? 23 A. Should not. 24 Q. In fact, you have to pull fairly hard to get an 25 oxygen generator to work, right? BRENNAN - CROSS (MOSKOWITZ) 46 1 A. No. The specification is 1 pound of pull, at 2 that time, to 4 pounds. It has been changed by 3 McDonnell Douglas to now 1 to 7 pounds of pull. That 4 is not a lot of pull, ma'am. 5 Q. So, if somebody just sort of tugged on the 6 lanyard a little, that would pull out the pin? 7 A. Yes, as long as you are between 1 and 4 pounds. 8 Q. Sir, the firing pin, is that the same thing as 9 the pull pin? 10 A. The pull pin is what you saw me pull back on the 11 screen, okay? I would not use the term generally 12 "firing pin" for that. The hammer may sometimes be 13 called the firing pin. 14 Q. The government referred to the firing pin and the 15 pull pin by the same terms; is that not correct? 16 A. I normally would not call that pin a firing pin. 17 I would call it a pull pin, but you call it what you 18 want. 19 Q. What does McDonnell Douglas call it? 20 A. I don't know. You will have to see what they 21 call it. 22 Q. When McDonnell Douglas says "firing pin," what 23 are they referring to in the maintenance manual? 24 A. I would expect they were referring to the hammer. 25 But you have to ask McDonnell Douglas. BRENNAN - CROSS (MOSKOWITZ) 47 1 Q. Are you not familiar with the maintenance manual 2 that the mechanics use? 3 A. No, ma'am. I became familiar with some of the 4 pages through the course of the investigation. But I 5 am not familiar with McDonnell Douglas's maintenance 6 manual. 7 Q. Scott had no responsibility, in your view, to 8 make sure that the directions in the maintenance 9 manual were clear for mechanics operating under it? 10 THE COURT: These are asking more of 11 opinion-type questions. He is not an expert, not been 12 declared to be one. He says he doesn't know what is 13 in the manual. Now, that is a fact. 14 Asking him whether it is his company's 15 responsibility to be familiar with it is an opinion. 16 So I think we ought to stick with the facts, whatever 17 the -- what are the facts he knows. 18 Q. You testified that the oxygen generator is a 19 hazardous material, correct? 20 A. It is a hazardous material for shipment, yes, 21 ma'am. 22 Q. Does the generator say on it anyplace that it is 23 a hazardous material? 24 A. No, ma'am. 25 Q. Did it say on it in 1987 that it was a hazardous BRENNAN - CROSS (MOSKOWITZ) 48 1 material? 2 A. No, ma'am. 3 Q. Did it say on it in 1996 on your generator that 4 it was a hazardous material? 5 A. No, ma'am. 6 Q. Did the box that generators come in say anyplace 7 it is a hazardous material? 8 A. Yes, ma'am. 9 Q. Where did it say it is a hazardous material? 10 A. The diamond label we just looked at here, the box 11 says the UN number for hazardous material, the boxes, 12 the marks, to indicate it is a hazardous material. 13 Q. Does the box have the words on it "hazardous 14 material"? 15 A. No, ma'am. They have the marks called for to 16 indicate hazardous material. 17 MRS. MOSKOWITZ: Your Honor, may I approach 18 the witness? 19 THE COURT: Yes. 20 Q. Let me show you what we have marked as 21 Defendant's Exhibit 1 and ask you if you recognize 22 that document. (Handing to the witness.) 23 Sir, do you recognize that document? 24 A. Yes, I believe I do. 25 Q. That's the MSDS, or the material safety data BRENNAN - CROSS (MOSKOWITZ) 49 1 sheet, regarding your oxygen generators, correct? 2 A. Well, this is the material safety data sheet that 3 applies to the -- to some of the oxygen generators. 4 The -22, -32, -34, -81, -82, -83 and -84 models, yes, 5 ma'am. 6 Q. Is it the material safety data sheet that applies 7 to oxygen generators to be installed in MD-80s? 8 A. Well, it depends on which part number generator 9 you are putting in. As I said, this sheet will refer 10 to the ones that are -- they are all 801386s. This 11 sheet covers the ones that have dash numbers, 22, 32, 12 34, 81, 82, 83 and 84. 13 Q. And those are designed for McDonnell Douglas 14 aircraft; is that correct? 15 A. They are designed for McDonnell Douglas aircraft, 16 yes, ma'am. 17 Q. The material safety data sheet is the sheet that 18 describes what is hazardous about hazardous materials, 19 correct? 20 A. I am not sure I -- material safety data sheet is 21 to provide the information required for hazard 22 identification for the workplace for products sent 23 into the workplace. I am not sure that is what you 24 just said. 25 Q. We'll take it your way then, sir. BRENNAN - CROSS (MOSKOWITZ) 50 1 It is dated November 30, 1995 correct? 2 A. This one is, yes, ma'am. 3 MRS. MOSKOWITZ: I move the admission of 4 Defendant Exhibit 1, Your Honor. 5 MRS. MILLER: No objection. 6 THE COURT: Normally, of course, the 7 defense exhibits would come in on the defense side of 8 the case; but if there is no objection, then the 9 document will be admitted as Defense Exhibit 1. That 10 is, Defendant Florence Exhibit 1. All right. 11 (Defendant Florence's Exhibit 1 in 12 evidence.) 13 BY MRS. MOSKOWITZ: 14 Q. Let met direct your attention, sir, to page 2 of 15 this document. It says, "fire-fighting measures"? 16 A. Yes, ma'am. 17 Q. What does it say where it says, "flash point"? 18 A. NA. 19 Q. What does NA mean? 20 A. That means this is a solid material, there is no 21 flash point for solid material. 22 Q. And what does it say after "flammable limits"? 23 A. NA. It is not a gaseous material, so there is no 24 flammable limit. 25 Q. And what does it say after "autoignition BRENNAN - CROSS (MOSKOWITZ) 51 1 temperature"? 2 A. NA. 3 Q. So it means it is not applicable, no autoignition 4 temperature is applicable, correct? 5 A. Correct. This is an oxidizer, not a flammable, 6 so there is no autoignition to them. 7 Q. How about the OSHA flammability classification? 8 A. Again, it is an oxidizer, so it is NA. 9 Q. Is there anyplace on here that says -- let's 10 see. Handling and storage. Storage temperature. 11 What does it say for storage temperature? 12 A. That's the next page? 13 Q. Yes, sir, page 3. 14 A. "Room temperature." 15 Q. Does it say anything in there about special 16 storage or handling for this generator? 17 MRS. MILLER: Objection, Your Honor. The 18 question was about storage temperature. 19 MRS. MOSKOWITZ: Well, we answered that 20 one. 21 THE COURT: Actually, all he is doing right 22 now is reading from a document to the jury. And the 23 document is in evidence and the jury can look at it 24 and see it. 25 Perhaps a summary question about these BRENNAN - CROSS (MOSKOWITZ) 52 1 matters, for example, the handling and storage. 2 Is there anything in the document anywhere 3 that indicates to whoever is reading that document 4 that this generator needs some special storage above 5 and beyond room temperature, normal handling? 6 THE WITNESS: Your Honor, under "General," 7 it says, "Do not store in wet or moist areas," because 8 water will affect it, yes. It says, "Do not store in 9 wet or moist areas." 10 THE COURT: So that's the only instruction 11 in the document that you can see that would alert 12 someone who is reading the document that this needed 13 some special handling? 14 THE WITNESS: No, because the document is 15 broken up into sections. And under, "Stability and 16 reactivity," it says "Avoid storing, mixing or 17 contaminating with chemicals, mineral acids and 18 combustible materials. Incompatibility is oils, 19 organic metals and acids." 20 And I think there is something else on 21 storage in here. (Pause) Yeah, it gives the hazard 22 class, the UN number, which guides you in storing its 23 compatibilities. 24 THE COURT: Mrs. Moskowitz. 25 BY MRS. MOSKOWITZ: BRENNAN - CROSS (MOSKOWITZ) 53 1 Q. Is there anything in that document that says 2 anything about shipping caps or safety caps, sir? 3 A. Not in this document, no, ma'am. 4 Q. Sir, when -- Scott provides shipping caps or 5 safety caps as part of its product line, right? 6 A. Excuse me? 7 Q. Scott provides as part of its produce line 8 shipping caps and safety caps, correct? 9 A. Do you mean if we sell them separately? Yes, we 10 do. 11 Q. Yes, you sell them separately from the generators 12 themselves, correct? 13 A. We put them on all new generators. We also have 14 them available as a separate item, yes, ma'am. 15 Q. Of course, you know that when somebody, either 16 repair station or an airline itself, installs new 17 generators, it has to keep the cap on that new 18 generator until the generator is ready to go into 19 service, correct? 20 A. The caps' got to be on until you are ready to use 21 the generator, to make it ready for use. That much I 22 know, yes, ma'am. 23 Q. And, so, if somebody is taking off an old 24 generator, they have to have a different cap to take 25 off the old generator than the cap that is on the new BRENNAN - CROSS (MOSKOWITZ) 54 1 generator, correct? 2 A. Unless they expend or unless they are taking it 3 off an expended generator or they expend the generator 4 before they take it off, the instructions are to cap 5 it, yes. 6 Q. You wouldn't recommend expending the generator 7 before they take it off the plane; would you? 8 A. I don't see why not. It is designed to run in 9 that compartment. I am not McDonnell Douglas. I 10 don't know what their practices are. But there is no 11 reason in the world why you couldn't just open the 12 door as you would in flight, pull the pin, expend the 13 generator, then take the generator -- take the 14 expended generator out. 15 Q. Oxygen generators can burn from the outside in, 16 correct? 17 A. I am not sure what you mean. You can set off an 18 oxygen generator from outside heat. 19 Q. External heat can cause an oxygen generator to 20 begin to produce oxygen, correct? 21 A. Yes, ma'am. 22 Q. And, in fact, you could also set off a generator 23 by external heat being applied to the percussion cap, 24 correct? 25 A. My experience says it will start, sometimes, not BRENNAN - CROSS (MOSKOWITZ) 55 1 if the hammer is not down, yes, ma'am. 2 Q. If -- it has been tested by Scott and determined 3 that the percussion cap can get set off at 302 4 degrees, right? 5 A. That's correct. I am not sure about the real 6 number. It is around 300. 7 Q. So it might happen at 298, right? 8 A. I don't have all that stuff memorized. 9 Q. And if that happens, the generator may at that 10 time become activated, correct? 11 A. It may or may not, yes. 12 Q. Sir, what temperature do plastic shipping caps 13 melt at? 14 A. That's -- (pause) They begin melting at around 15 350, I believe, for that material. At least begin 16 softening at 350. 17 Q. Sir, there have been reported incidents reported 18 to Scott where electrical arcing caused a generator to 19 become activated, correct? 20 A. Are you referring to incidents? I am aware of 21 one. 22 Q. A Scandinavian aircraft incident? 23 A. It was in Europe somewhere, and the report was 24 that a shorted power line shorting -- I guess arcing 25 the generator was the cause -- caused the generator to BRENNAN - CROSS (MOSKOWITZ) 56 1 initiate. 2 Q. Sir, before the time of this accident, did Scott 3 send out to its customers instructions on how 4 generators should be shipped and handled? 5 A. Well, Scott has sent out several service 6 bulletins. I don't know which ones you are referring 7 to. 8 Q. Service bulletins go to operators, correct? 9 A. Well, certainly -- in the aviation, civil 10 aviation like this, the service bulletin goes to the 11 certifier of the part, which is generally the aircraft 12 manufacturer. And then he, in turn, distributes it to 13 all the people who are registered owners of the 14 aircraft. 15 MRS. MOSKOWITZ: I have to object. That is 16 not responsive. 17 Q. You don't know what the second level does with 18 them, correct? 19 A. Well, yes. I am told they will distribute to 20 service bulletins. We go to the operators and the 21 operators go to the user. 22 I'm sorry, we go to the customers -- 23 THE COURT: The difficulty with all this 24 is, if you ask the question, it is hard for me to 25 strike the answer. BRENNAN - CROSS (MOSKOWITZ) 57 1 The best way to do it is just not to ask 2 the question about these things. 3 Try to limit your answer to what she is 4 saying. 5 Move onto your next question, please. 6 MRS. MOSKOWITZ: I will, Your Honor. 7 If I may approach the witness, Your Honor? 8 THE COURT: Yes, indeed. 9 Q. If I can show you what we marked for 10 identification as Defendant Florence Exhibit 2, and I 11 will ask you if you recognize that document, sir. 12 A. (Pause) 13 Yes, I do. 14 Q. What is that? 15 A. That's a letter to OEMs and distributors that was 16 sent out in '97. 17 Q. What is an EOM? 18 A. That's what the McDonnell Douglas, a Boeing, a 19 Lockheed. 20 MRS. MOSKOWITZ: Your Honor, I move the 21 admission of Defendant's Exhibit 2. 22 MRS. MILLER: Objection, Your Honor. It is 23 dated after the events of our case. There is no 24 showing of relevance. This is October 1 -- 25 THE COURT: I will hear from you -- I will BRENNAN - CROSS (MOSKOWITZ) 58 1 reserve ruling. I will hear from you the next 2 recess. Defendant's Exhibit 2B. 3 MRS. MOSKOWITZ: May I inquire about the 4 document, Your Honor? 5 THE COURT: Not without showing its 6 relevancy, and we don't want to argue that in front of 7 the jury. We can excuse the jury, argue the issue, 8 and bring them back. 9 MRS. MOSKOWITZ: It is okay. If I can 10 publish it later, Your Honor -- 11 THE COURT: If it is admitted, you can 12 publish it. If not, you can't. 13 MRS. MOSKOWITZ: Fine. With the Court's 14 indulgence. 15 THE COURT: All right. 16 MRS. MOSKOWITZ: (Pause) 17 I have nothing further, Your Honor. 18 THE COURT: All right. 19 Ms. Raskin, if I may interrupt you. You 20 are going to be next, are you? 21 MS. RASKIN: Yes, Your Honor. 22 THE COURT: If it is convenient, we'll take 23 a brief recess at this time. It is now 10:42. We'll 24 take a short recess, ladies and gentlemen. If you 25 will step into the jury room. BRENNAN - CROSS 59 1 (The jury left the courtroom at 10:42 a.m.) 2 THE COURT: What is the materiality of this 3 document that, according to Mrs. Miller's brief 4 statement, was issued after the tragedy, the 5 accident? 6 MRS. MOSKOWITZ: Your Honor, it is our 7 position that in the industry there really wasn't 8 information out for people like Mr. Florence to know 9 the dangers of this equipment. And a lot of these 10 issues about whether it is hazardous material, whether 11 he had anything to do with mishandling, depend upon 12 that. 13 Since the accident, many, many things have 14 changed. And among them are Scott, which took no 15 responsibility to do anything like this before, sends 16 out to its customers a multipage single-spaced 17 document which describes in detail how these items 18 should be packaged and handled, and something which, 19 of course, if it had been sent out earlier, might have 20 changed things dramatically. 21 THE COURT: All right. The objection is 22 sustained. The document will be marked for 23 identification, but not admitted into evidence. 24 Now, so that we may have integrity of the 25 record and complete control of these exhibits, I will BRENNAN - CROSS 60 1 require the parties to hand up the document to the 2 courtroom deputy, if she is present in court. She is 3 excused from time to time to attend other duties. 4 If she is not in court, then I will be ask 5 they be handed to her for marking at each recess. 6 Then they will be available on the table, 7 counsel table, in front of the courtroom deputy and 8 Court Reporter, for use by all lawyers. 9 I do not want the lawyers to be put to the 10 burden of having to go to each others' tables to ask 11 for some exhibit, and that they wish to cross-examine, 12 and we have to rout through boxes and barrels and so 13 on. So we will just maintain this exhibit table right 14 in front of the courtroom deputy. 15 Now, the record should be clear that thus 16 far, on November 16, that is, yesterday, there were 17 three exhibits admitted into evidence, according to my 18 records. They are Exhibit 30F -- these are Government 19 Exhibits -- Government Exhibit 30F like in Frank, 20 Government Exhibit 31, Government Exhibit 32. 21 Today, November 17, there have been 22 admitted into evidence the following exhibits: 23 Government Exhibit 30A, B, C, and D; Government 24 Exhibit 54A, B, K, and a jumble of other numbers that 25 I didn't catch. But it is Government Exhibit 54. BRENNAN - CROSS 61 1 And Defense Florence Exhibit Number 1. 2 Those have all been admitted into evidence. 3 Defense Florence Exhibit Number 2 will be 4 marked for identification and maintained by the Clerk 5 of Court. It is not admitted. It has not been 6 admitted into evidence. 7 The exhibits that I have just enumerated, I 8 will now require counsel to deliver to the clerk so 9 that she may mark them as admitted into evidence, and 10 then they may be maintained on the table in front of 11 her desk. 12 I am advised by the courtroom deputy, 13 Government Exhibit Number 1 was admitted yesterday. 14 At this point in time during the recess, 15 will you please furnish those documents and/or 16 exhibits, whatever they may be, to the clerk so that 17 she can mark them in evidence. Thank you. 18 MRS. MILLER: Your Honor, there were other 19 exhibits also. 30E -- 20 THE COURT: Well, if you will hand them to 21 her, have them marked with her initials. Otherwise we 22 are going to -- this thing will rapidly degenerate -- 23 MRS. MILLER: That's why he wanted to make 24 clear on the record, 30E was also admitted during the 25 testimony of Mr. Brennan, the yellow oxidizer label. BRENNAN - CROSS 62 1 THE COURT: All right. 30E then will be 2 included in that group. If you will hand them to the 3 clerk. Thank you. 4 (Court recessed at 10:46 a.m.) 5 (Court reconvened the 11:12 a.m., out of 6 the presence of the jury.) 7 THE COURT: Before we bring the jury in, 8 let me advise you that -- and I really hate to tell 9 you that I told you so; but, sure enough, the jury 10 today has advised my staff one of them has asked the 11 question about whether or not -- that person, I don't 12 know whether it is a man or woman, I don't know who it 13 is, it doesn't matter; but one of them wants to take 14 notes. 15 What is your position with respect to note 16 taking at this point? We have a jury asking to take 17 notes. For the government, any objection? 18 MRS. MILLER: No, Your Honor, we have had 19 no objection. 20 THE COURT: All right. 21 For the defense? 22 MRS. MOSKOWITZ: Yes, Your Honor, we 23 object. 24 THE COURT: The objection is overruled. 25 Bring them in. I will give a standard BRENNAN - CROSS 63 1 instruction to them. 2 It is my firm belief, in having dealt with 3 hundreds if not thousands of jurors, juries, all we 4 can do to accommodate their request -- two of them 5 wanted to go down for a smoke, we sent them down with 6 the Marshal. We try to accommodate them as best we 7 can, because we think a happy juror, like a happy 8 child or even a happy lawyer, is much easier to deal 9 with. 10 I will give the standard instruction 11 regarding note taking. 12 (The jury entered the courtroom at 11:13 13 a.m.) 14 THE COURT: Ladies and gentlemen, I 15 understand that someone on the jury has asked the 16 clerk or the Marshal about taking notes by members of 17 the jury during the trial. If you would like to take 18 notes during the trial, you may of course do so, and 19 the clerk will provide notebooks and pens or pencils 20 for those of you -- for each of you, or all of you -- 21 for those who wish to take notes to do so. 22 On the other hand, of course, you are not 23 required to take notes if you prefer not to do so. 24 That is entirely left up to you individually. 25 I do wish to instruct you, however, that if BRENNAN - CROSS 64 1 you do take notes, be careful so as to not get so 2 involved in the note taking that you become distracted 3 from observing the witness, the demeanor of the 4 witness while he or she testifies, and observe what is 5 going on in the courtroom. 6 But don't try to summarize all of the 7 testimony as you do your note taking. Jot down those 8 things that you think -- those of you that take notes, 9 jot down those things that you think are important, 10 perhaps a date, perhaps a number, perhaps something 11 you think that is important that will help you 12 remember whatever it is that you are -- that 13 particularly you want to make note of at that time 14 later on when you go back and look over your notes. 15 Sometimes it is difficult to remember 16 dates, times, amounts of measurements, identities or 17 relationships. But, remember, you must decide upon 18 the credibility or believability of each witness; and 19 you must, therefore, observe the demeanor and 20 appearance of the witness while testifying. And 21 taking notes may distract you from that important 22 task. 23 Also, your notes should be used only as 24 memory aids. You should not give your notes 25 precedence over your independent recollection of the BRENNAN - CROSS 65 1 evidence. And whether you take notes or not, you 2 should rely upon your own independent recollection of 3 the facts and the proceedings, and not be unduly 4 influenced by the notes of other jurors. 5 I emphasize, and this is most important, 6 that the notes are not entitled to any greater weight 7 than the memory or impression of each juror as to what 8 the testimony was. When you get in the jury room, the 9 fact somebody has notes does not give that person any 10 greater position over anybody else. 11 So, with all that being said -- I told you 12 the pros and cons. There has been a great deal of 13 literature on the subject written over the years. 14 There was a big controversy in the federal system 15 years ago, and some judges feel that notes are very, 16 very important in the case, and other judges think it 17 might cause you to be distracted from observing the 18 truthfulness and demeanor of the witnesses, and so 19 forth. 20 On balance, it is going to take -- well, we 21 are not sure, but up to six weeks, let's say. It may 22 be that you have a comfort level about having made 23 some notes throughout the trial that will help you at 24 the end. And if you want to do that, that is fine. 25 If you don't want to do that, that is fine. BRENNAN - CROSS (RASKIN) 66 1 So, at this point in time, my courtroom 2 deputy has some pads and pencils for you. 3 If you like to just have a pad to make one 4 line a day or fill up the book a day, you can do so. 5 Don't feel obliged to do it; but if you 6 want to, there they are. 7 All right, let's get back with the witness, 8 Mr. Brennan. 9 Okay, Mrs. Raskin. 10 CROSS-EXAMINATION 11 BY MRS. RASKIN: 12 Q. Mr. Brennan, I believe you testified during your 13 direct examination that Scott began manufacturing 14 generators we have been speaking about this morning in 15 the early '70s? 16 A. Yes, ma'am. 17 Q. And at or about that time, sir, Scott made an 18 application to the Bureau of Explosives, did it not, 19 for approval to ship those generators? 20 A. Yes, it did, ma'am. 21 Q. And without the approval of the Bureau of 22 Explosives, Scott would have been forbidden to ship 23 those generators; isn't that correct, sir? 24 A. That assembly like that needs classification. 25 Without the classification, you are not supposed to BRENNAN - CROSS (RASKIN) 67 1 ship them, that is correct. 2 Q. And that's because the generator contains the 3 explosive and the percussion cap you discussed during 4 your direct examination; isn't that right, sir? 5 A. It precludes a percussion cap. If you include a 6 cap in your product, you have to submit it to the 7 Bureau of Explosives for classification before you are 8 allowed to ship the product. 9 Q. Because it has an explosive component, correct? 10 A. I don't know how to answer that. The percussion 11 cap makes a bang and puts out like a flame. But it is 12 a regulatory thing, and I am not sure that I really 13 understand all the definitions that they put on the 14 word "explosive." To me it is the same as a cap. 15 Q. I don't need you to tell us every definition. 16 But you are in charge of regulatory compliance; isn't 17 that correct? 18 A. Yes. 19 Q. And you are generally familiar with what the DOT 20 regulations require in terms of classifications; isn't 21 that correct? 22 A. Yes, ma'am. 23 Q. And prior to the DOT assuming direct 24 responsibility for that, you are aware of the fact 25 that it was the Bureau of Explosives that classified BRENNAN - CROSS (RASKIN) 68 1 materials such as this? 2 A. That is correct. 3 Q. And it is your understanding, sir, that it was 4 the explosive component of that generator that 5 required Scott initially to go to the Bureau of 6 Explosives and seek an approval before it could ship 7 the generators? 8 A. That the percussion caps have to be submitted for 9 classification, is my understanding. 10 It is not shipped as an explosive after it 11 is classified. I don't know anything past that. 12 Q. I am simply asking whether it was your 13 understanding that the reason why the classification 14 needed to be approved was because of the presence of 15 the explosive in the generator. 16 A. Because of the presence of the percussion cap, 17 that you have to go get the item classified. 18 Q. Well, sir, in fact, you did get an approval by 19 the Bureau of Explosives? And by "you," I am 20 referring to Scott Aviation. 21 A. Yes, we got a classification letter. 22 Q. And that letter authorized you to apply a 23 shipping name to the generators of flammable solid; 24 did it not? 25 A. I believe that was in the original letter, yes, BRENNAN - CROSS (RASKIN) 69 1 ma'am. 2 Q. And that the classification would also be 3 flammable solid followed by NOS, correct, sir? 4 A. I think that is correct, yes, ma'am. 5 Q. Now, sir, you testified on direct examination as 6 to the appearance of the DOT placard that represents 7 the warning label as you described it for oxidizers. 8 Are you also familiar, sir, with what the 9 DOT placard governing flammable solids was during 10 1996? 11 A. I have to look it up. Off the top of my head I 12 wouldn't be able to describe it to you. 13 Q. Might I refresh your recollection by showing you 14 something and asking you whether that helps? 15 A. I will try. 16 MS. RASKIN: May I approach the witness, 17 Your Honor? 18 THE COURT: Yes. 19 A. Again, I recognize the placard after looking for 20 it. It is not the placard we use. 21 Q. But do you recognize it as the placard that 22 describes a flammable solid, sir? 23 A. It gives a Hazard Class 4 at the bottom. We 24 don't have Hazard Classes 4. I have to look it up to 25 see what it really describes. All I know, you showed BRENNAN - CROSS (RASKIN) 70 1 me a placard for Hazard Class 4. 2 Q. Now, sir, after having obtained this approval 3 from the Bureau of Explosives in 1970, sir, you did, 4 in fact, use the shipping name flammable solid and the 5 classification flammable solid for a period of time, 6 correct? 7 A. For a period of time, yes, ma'am. 8 Q. And there came a time thereafter, did there not, 9 when Scott ceased using a shipping name flammable 10 solid and the classification flammable solid NOS, and 11 started instead to use the shipping name sodium 12 chlorate, and the classification, oxidizer 5.1? 13 A. That is correct. 14 Q. When Scott made the decision to start using these 15 different shipping names and shipping classifications, 16 did it return to the Bureau of Explosives and ask 17 permission to use the different names than those that 18 appeared in the original approval, sir? 19 A. I believe it was done because of a change in CFR, 20 not because of anything that the Bureau of -- 21 Q. Answer my question, please. 22 A. I am not sure the Bureau of Explosives still -- 23 THE COURT: Just a moment. Time out. 24 This gentleman cannot take down what both 25 of you are saying at the same time, nor can the jury BRENNAN - CROSS (RASKIN) 71 1 probably follow it. 2 So what we'll have to do -- let me ask 3 Mr. Brennan to wait until she has finished her 4 question and then you can answer. 5 Ms. Raskin, please wait until he finishes 6 his answer and then you can ask your next question. 7 All right, let's repeat the question, 8 please. 9 Q. The question, sir, is, when Scott began using a 10 different shipping name and a different shipping 11 classification for the oxygen generators, did it seek 12 approval of the Bureau of Explosives to change the 13 shipping name and the shipping classification? 14 A. To the best of my knowledge, no. But I believe 15 at that point the -- 16 Q. And, sir -- 17 THE COURT: Wait. 18 To the best of your knowledge, no. 19 Go ahead. 20 A. I believe at that point that was after the change 21 in the CFRs, and the Bureau of Explosives was just one 22 of the agencies you make an original submission to. 23 And I believe we followed the revised CFRs. 24 Q. What revised CFRs are you referring to? 25 A. When they published the table that we referred to BRENNAN - CROSS (RASKIN) 72 1 yesterday, I believe it was, and the instructions that 2 you are to match the material you are shipping with 3 the table and follow the placarding, etc., in the 4 table. 5 I also -- it was submitted. There is two 6 classification agencies in the United States, the 7 military has their own one separate from the DOT. And 8 the military, I believe, around that same time that we 9 changed to sodium chlorate classification and 10 oxidizing solid was for the military. 11 We did not go to the Bureau of Explosives, 12 but I believe that was after the change in the CFRs, 13 and it was done pursuant to the CFRs. 14 Q. Did you go back to any agency of the Department 15 of Transportation and seek permission to change the 16 classification, sir, during that period of time? 17 A. That period of time, you mean prior to '80? No, 18 I don't believe so. 19 Q. Now, Mr. Brennan, you did at some point in time 20 return to the Department of Transportation and ask 21 whether the shipping name and the classification that 22 you had been using -- and by those I am referring to 23 sodium chlorate oxidizer 5.1, were, in fact, the 24 proper shipping name and classification? 25 MRS. MILLER: I will object to relevance of BRENNAN - CROSS (RASKIN) 73 1 this line. We are getting far afield into the 2 dealings of this company with government agencies, 3 having nothing to do with -- 4 THE COURT: Is this prior to or after the 5 accident? 6 THE WITNESS: Clarification was after the 7 accident, Your Honor. 8 THE COURT: Then I will sustain the 9 objection. 10 MS. RASKIN: May I be heard? 11 THE COURT: All right. The jury will step 12 out to the jury room and I will listen to counsel. 13 (The jury left the courtroom at 11:28 a.m.) 14 THE COURT: Yes, ma'am. 15 MS. RASKIN: Your Honor, the government in 16 this case has charged SabreTech with misclassifying 17 and mislabeling these generators. 18 THE COURT: That's correct. 19 MS. RASKIN: The evidence I am going to 20 elicit, Your Honor, tends to show that, according to 21 the Department of Transportation in 1996, the 22 classification that Scott Aviation was using and the 23 classification that Ms. Heck suggests in the 24 Indictment is the correct classification, in fact, was 25 not. The Department of transportation came back and BRENNAN - CROSS (RASKIN) 74 1 said no, we think you should be calling them something 2 else. 3 I think it goes directly to the fact at 4 issue here; that is, whether these oxygen generators 5 were improperly labeled and handled and, if so, how. 6 THE COURT: I fail to understand. You are 7 asking a series of questions about what his company 8 did to comply with federal regulations after the 9 crash. Now that I submit to you is immaterial just as 10 would be the whole series of cases that says you can't 11 talk about, oh, settlement offers or -- let's change 12 it to civil, take it away from criminal. But the city 13 goes out and repairs a street light immediately after 14 the accident or the city or county sends out -- all 15 those cases that say remedial steps taken after an 16 incident or accident or terrible tragedy are not 17 admissible for the reason that you would discourage 18 any remedial action being taken -- 19 I am digressing. 20 This is all after the accident, is my 21 point. I think what we have to deal with here is, 22 what were the regulations in place that governed 23 everybody's conduct up to the time of the accident. 24 What they did after that to straighten things out that 25 may have been in error or not is not the point. The BRENNAN - CROSS (RASKIN) 75 1 person to call if you would need that information 2 would be, obviously, the person who issued the 3 regulation or authorized to issue it, somebody from 4 the transportation board or whatever it is that is 5 responsible for issuing those. And let that person 6 take the stand and say, my agency made a horrible 7 mistake before this accident, and we corrected it 8 right after the accident. 9 But even there I am not sure that that is 10 admissible. But at least that would be the point. 11 It wouldn't be what Scott, or ValuJet 12 Airlines or SabreTech Airlines or anybody else did to 13 comply with remedial steps that were taken. 14 That is the basis of my ruling. 15 Do you have any authority that would 16 indicate otherwise that you would like to bring to my 17 attention? 18 MS. RASKIN: As to the subject of remedial 19 measures, I am well aware of the rule to which Your 20 Honor refers. And I would suggest that that rule is 21 meant to apply to situations in which you are 22 attempting to introduce that evidence against a 23 defendant; for example, in a negligence case. And, of 24 course, the public policy behind the rule is that you 25 don't want to discourage people who have been sued BRENNAN - CROSS (RASKIN) 76 1 from bettering their products. 2 We don't have that situation here. Scott 3 Aviation is not a party; SabreTech is. And the 4 evidence is being introduced to establish what the 5 intent of SabreTech and its mechanics was at the time 6 with respect to the crimes charged. And clearly 7 relevant to the issue of their intent is what the 8 industry standards were, what the appropriate 9 regulations and approvals were. 10 And what I am trying to show is that there 11 is only one approval, and that approval classifies 12 these things as a flammable solid, not sodium chlorate 13 or an oxidizer. And, indeed, after the crash, the DOT 14 told Scott that what it had been doing at the time of 15 the crash was not appropriate in terms of how it was 16 classified. So, Your Honor -- 17 THE COURT: This gets back to a point that 18 I raised with Mrs. Moskowitz and Mrs. Miller at 19 sidebar, the materiality of what Scott was doing prior 20 to the crash. 21 Mrs. Miller -- the government offered 22 evidence on this point to show that they were or were 23 not complying with the regulations, and it was 24 totally -- I still think it was totally immaterial, 25 and nobody objected and it went forward. Now we are BRENNAN - CROSS (RASKIN) 77 1 into the morass of trying to show that what they were 2 doing was wrong. 3 It doesn't matter what Scott was doing 4 about shipping hazardous waste. Mrs. Miller suggested 5 at the sidebar that she would tie it up by showing 6 that SabreTech received the materials appropriately 7 marked on the boxes as containing dangerous substances 8 or hazardous waste, or whatever the label was. I am 9 not trying to say what it is, I don't know. And that, 10 therefore, they should have known -- what they should 11 do to ship it in boxes to somebody else. 12 As I indicated at sidebar, I am not sure at 13 all that that is material or I need to get into it. 14 But now you suggest you want to show what 15 the industry standard was industrywide prior to the 16 accident, and by shipping these things. Well, if the 17 industry standard differs from the regulations 18 governing the handling of hazardous waste, what 19 difference does it make? 20 Suppose you prove everybody in the nation 21 was ignoring the regulations. Is that a defense to 22 one individual? Suppose you prove that the government 23 only selected one individual, one company, out of all 24 the companies that were disobeying the regulations. 25 We all know that that is not a defense; that the BRENNAN - CROSS (RASKIN) 78 1 government has the right -- city policeman can watch 2 twelve cars go through the red light and pick up the 3 eleventh car. The eleventh car can't defend he broke 4 the law by running the red light, the other ten didn't 5 and he should be excused. 6 It is a human and appealable argument, but 7 it has no place in the presentation of the evidence; 8 certainly the matter after the accident is not. 9 Mrs. Miller, what is the government's 10 position with respect to the materiality of whatever 11 the industry was doing prior to the accident? Is it 12 material at all? 13 MRS. MILLER: It is not what the industry 14 was doing; it is how items were wrapped and packaged 15 that were actually received by SabreTech. And that is 16 specifically going to be proved in this case. 17 THE COURT: Why is that material? 18 MRS. MILLER: Because that shows knowledge 19 by SabreTech of the hazardous nature of the 20 materials. 21 MS. RASKIN: Your Honor -- 22 THE COURT: If somebody, a shipping clerk 23 at the loading dock of SabreTech, receives a box and 24 opens it up, and on that box is a label marked "Watch 25 out, C4," or something like that. Not even "watch BRENNAN - CROSS (RASKIN) 79 1 out," just "C4," you are suggesting that then charges 2 SabreTech with knowledge up and down the operation 3 with the fact that this thing might be -- or they 4 might be dealing with hazardous material? Is that the 5 test? Or is the test whether or not SabreTech should 6 have known of the CFR regulations governing all of 7 handling hazardous waste? 8 Suppose that there was nothing on the box 9 to indicate that? Would that be a defense for them? 10 Certainly not, if they violated the regulations. 11 MRS. MILLER: It would not be probative in 12 that case. 13 THE COURT: It is not probative in either 14 case. That's the point. If it is not probative as a 15 defense, it is not probative as proof for the 16 government. 17 MRS. MILLER: You asked, if the box said 18 nothing, that would be probative of nothing. If the 19 box said hazardous material, that is probative that 20 SabreTech knows it is hazardous material. 21 THE COURT: Correct. And if it says 22 nothing, they would be entitled to bring in every box 23 that says nothing to show that there was no 24 knowledge. 25 You see, the probative issue you are BRENNAN - CROSS (RASKIN) 80 1 talking about is knowledge. You say you wish to offer 2 a box that has the label on it to show knowledge on 3 the part of SabreTech in dealing with hazardous 4 material. They wish to show that they didn't know, 5 and that a lot of the boxes came through with nothing; 6 and/or that the guy that got paid the minimum wage on 7 the loading dock that ripped into the box never went 8 and told the president of the company about it or the 9 mechanics or anybody else. 10 Then we are off onto whether or not all 11 that knowledge got transmitted with that label, got 12 ultimately transmitted to the people who were dealing 13 with the hazardous material, all of which I submit to 14 you -- and I want you to think about this -- has very 15 little to do with whether or not a company who is 16 handling and dealing in these types of materials is 17 charged with knowledge of the national regulations 18 regarding the handling of hazardous waste. 19 Obviously they are, no matter what the 20 six-dollar-an-hour guy -- pardon me, I don't know the 21 minimum wage these days, it may be 7.50 an hour. I 22 hope it is, anyway. 23 Whatever the minimum wage man who unloaded 24 that box, what he knew, what he saw, what he 25 understood, what he transmitted to others, is getting BRENNAN - CROSS (RASKIN) 81 1 too far afield. I don't think that is material to 2 anything. 3 If you got a conversation that somebody 4 from the national board called up the president of the 5 company and said, Hey, you guys, you better watch this 6 stuff, it's hazardous, that is probative evidence. 7 But this other thing is so far removed it is opening 8 up -- the defense can come in and rebut that and show 9 all the boxes they got that were not labeled at all, 10 or show the extent of knowledge of the minimum-wage 11 guy at the loading dock of what he did or didn't do 12 after that as far as passing this information along. 13 I just don't think this whole area is 14 material. 15 But getting back to the objection that has 16 been made as to remedial steps taken after the 17 accident, and whether or not Scott complied with 18 anything after the accident or not, the Court is going 19 to rule is immaterial. 20 And when it gets around to -- and, frankly, 21 if somebody on your side will simply make an 22 objection, I believe that it will be sustained. 23 I am not going to prejudge at this point, I 24 am going to listen to both of you. But if somebody 25 would make an objection to whether or not SabreTech at BRENNAN - CROSS (RASKIN) 82 1 one of their plants received a box with a label that 2 said C4, and that was supposed to tip everybody off in 3 the world to the fact it is hazardous material, handle 4 with care, I think that is probably going to be 5 sustained in the future, because it just simply is not 6 probative of the point for which it is offered. 7 That's all. 8 It may be proper, it may be something on 9 rebuttal that the government would need to get into if 10 there is some sort of defense brought forth that 11 SabreTech didn't know that this was hazardous. But 12 what Scott did, or, indeed, any other -- let's take, I 13 don't know, pick another airline, one that -- forgive 14 me, Air Florida, or somebody that is not in business 15 today. What they did or didn't do, I don't think it 16 has anything to do with this case. The question is 17 whether or not the company was chargeable with the 18 knowledge of the regulations governing hazardous 19 material. 20 I think -- clearly, I don't think there is 21 any dispute; they weren't chargeable with knowledge. 22 And whether or not a shipping clerk did or did not -- 23 a shipping or receiving clerk knew or didn't know, I 24 don't see any sense to that at all. 25 MS. RASKIN: May I make one point directly BRENNAN - CROSS (RASKIN) 83 1 as to that? 2 THE COURT: Please do. 3 MS. RASKIN: I think part of the problem is 4 that our position is that the issue is not whether 5 SabreTech is chargeable with knowing or complying with 6 the hazardous materials regulations in this case. We 7 all agree that, as a civil matter, as an 8 administrative matter, it is no defense for a company 9 to say, gee, we didn't know. Ignorance of the law is 10 no excuse. But they have charged willful violations. 11 And in order to establish that, they have to show more 12 than simply the regulations apply to us. They have to 13 show that we knew they applied to us and we 14 disregarded them nonetheless. 15 And, so, in order to defend ourselves in 16 that kind of a context, what we are -- we believe we 17 are entitled to show is that even experts in the 18 industry, even the manufacturers of the generators, 19 were wrong at worst, confused at best, as to what the 20 appropriate classifications for these things are. 21 It is not a collective prosecution 22 argument, Your Honor. That is not our point. 23 THE COURT: That would come after someone 24 takes the stand and says, I didn't know. And at that 25 point in time, then you may wish to offer evidence. BRENNAN - CROSS (RASKIN) 84 1 But this comes as a matter of defense. It is not a 2 matter of the government proving it. 3 Once the government has submitted the 4 regulations and I have taken judicial notice of all of 5 that portion of the CFR, once that is in there, the 6 government, I think, has met its burden of 7 establishing at the threshold level there was 8 knowledge these things are hazardous. 9 The government may have to prove that was 10 sent down from the top to the mechanics, but they are 11 not going to prove that, I submit, by offering 12 evidence that Mr. Florence, for example, opened one of 13 the boxes. That to me is so far removed that it is 14 not going to get past a Rule 29. But -- that evidence 15 might come in rebuttal to evidence from the defense 16 that they didn't know anything about the hazardous 17 material. But proving what the industry thought or 18 didn't think, that is all speculative, that is all in 19 people's opinions, people's minds three years after a 20 tragic accident when their opinions change, they got 21 modified, adjust to the facts in light of pending 22 litigation. 23 I'm sorry, I don't think we'll spend six 24 weeks to listening to somebody, whatever they think 25 the regulations meant or are or were. The regulations BRENNAN - CROSS (RASKIN) 85 1 are there and the government has to prove that 2 SabreTech knew about it. I think there is a 3 presumption printed that the company knew about it. 4 It may be the government has to prove in some way that 5 got filtered down to the individual supervisors or 6 mechanics who were actually working with the 7 material. And that may be what they got to prove. 8 But I submit to you, they are not going to 9 prove it by somebody saying they mailed a package to 10 them that had labeled hazardous. Suppose they open it 11 up and it had ping-pong balls? You know, this 12 thing -- we have to be -- there has to be some reason 13 to this. 14 But, in any event, what the industry was 15 doing after the accident certainly is not material. 16 What they are doing before the accident may be 17 material if it is first established that there was -- 18 that there was no knowledge that these were hazardous 19 materials. I think you have to bring that evidence 20 forward. 21 I think the government has indicated, I 22 don't know what, but in their opening statement they 23 said something -- and you all said something at 24 length -- Mr. Dunlap was on the cutting edge of some 25 interesting stuff there about immunity and that sort BRENNAN - CROSS (RASKIN) 86 1 of thing, and arguments and so on about some gentleman 2 that is going to come in and say that they all knew 3 this, they knew it was hazardous waste material. 4 So we don't have to bother whether or not a 5 receiving clerk opened a box that had a stamp on it 6 that should indicate to his or her mind that that was 7 hazardous material. 8 I am going to sustain the objection, 9 without prejudice to the defense's right to bring it 10 up on their side of the case if they wish to call this 11 man back, or somebody else back to show that, if it 12 becomes relevant, that the industry standard knowledge 13 about these materials is relevant to this case, fine. 14 Then you can bring him back. But at this point in 15 time it is sustained. 16 And you may wish to -- what is it, 947. 17 You may wish to evaluate appropriate and proper 18 fairness to you -- not any of you expecting this, 19 maybe you want to reevaluate some of your other 20 cross-examination. 21 I recognize that I want to be fair to you. 22 It is close to the noon hour. So I think we'll take a 23 recess at this time, and then we'll see where we go 24 after we resume with that. 25 All right. Bring the jury in, I will BRENNAN - CROSS (RASKIN) 87 1 instruct them on the noon recess. 2 It is my intention to advise the jury I 3 understand there is some publicity about the case. A 4 friend from Tallahassee faxed to me an article that 5 was in the New York Times, a Mr. Berg, purportedly. I 6 will ask them if they read or considered anything, and 7 remind them about the rule, unless there is some 8 objection to that. 9 MRS. MOSKOWITZ: No, Your Honor. 10 MS. RASKIN: No, Your Honor. 11 (The jury entered the courtroom at 11:48 12 a.m.) 13 THE COURT: Ladies and gentlemen, we are 14 going to take a recess for the noon hour at this 15 time. I wish to mention two things to you. One I 16 forgot to do earlier this morning when you came in. 17 I have been advised that there has been 18 some publicity or newspaper -- there has been some 19 news articles both written and transmitted to -- 20 electronically over television and the radio, I 21 understand, about the case. As I say, something like 22 this may come to your attention, maybe innocently or 23 accidentally something has, and I wish to ask all of 24 you collectively if any of you during the intervening 25 night recess had heard anything on television, radio, BRENNAN - CROSS (RASKIN) 88 1 watched anything on TV, or read anything that may have 2 been -- or was, I understand, in the newspaper about 3 this case -- and please don't be -- I am not going to 4 fuss at anybody. If something happened, I would 5 rather know it than not know it. 6 If anything like that happened, please 7 raise your hand and we'll talk to you separately. 8 (No hands.) 9 THE COURT: Very good. Let me compliment 10 you on following our instruction, which is the same 11 instruction we will give you again now: 12 If there is anything in the newspaper, on 13 radio or television, don't read it, watch it or listen 14 to it. Don't let anything come to your attention 15 except what you see here in the courtroom. 16 We thank you very much for your patience. 17 We'll recess at this time. 18 For certain reasons that have nothing to do 19 with this trial, we will resume at 1:30. 1:30. We'll 20 have an hour and a half. 21 Thank you very much. 22 Marshal, would you see that they get to the 23 elevator? 24 (The jury left the courtroom at 11:50 a.m.) 25 THE COURT: Again, Mr. Brennan, you are BRENNAN - CROSS (RASKIN) 89 1 still in your testimony, so you are under the same 2 instruction not to discuss it with the agents or the 3 government or with the defense or anybody, your 4 testimony. The whole idea is, not going out and say, 5 How am I doing? You are doing great, you are doing 6 bad. You are not to do that. 7 THE WITNESS: Yes, sir. 8 THE COURT: All right, sir. 9 1:30 this afternoon. 10 (Court recessed at 11:50 a.m.) 11 AFTERNOON SESSION. 12 (Court reconvened at 1:35 p.m., out of the 13 presence of the jury.) 14 THE COURT: Thank you. 15 Bring the jury in, please. 16 MR. MC GUIRK: James McGuirk. 17 May I have permission to file with the 18 Court on behalf of a witness who is going to testify, 19 I believe, this afternoon a motion without argument 20 for the Court? I think it may assist the Court in the 21 organizing of the case. 22 THE COURT: Thank you. 23 I am sure that whatever you would file 24 would indeed be helpful to the Court. 25 MR. MC GUIRK: For the record, I am filing MOTIONS 90 1 a motion and sealed Exhibit A, but not sealed Exhibit 2 B, unless the Court requests it. 3 THE COURT: Okay. Fine. 4 (The jury entered the courtroom.) 5 CROSS-EXAMINATION 6 BY MS. RASKIN: (Continued) 7 Q. Good afternoon, sir. 8 Before the break we were discussing an 9 approval that had been issued to Scott Aviation 10 concerning the oxygen generators from the Bureau of 11 Explosives. Do you remember that? 12 A. Yes, ma'am. 13 MS. RASKIN: At this time, Your Honor, I 14 have what has been marked as Defendant's Exhibit 1, 15 which is the approval. I would like to offer it into 16 evidence. It is a public record, Your Honor. 17 MRS. MILLER: We have no objection, Your 18 Honor. 19 THE COURT: All right. This exhibit will 20 be admitted into evidence as Exhibit -- how should we 21 number it? 22 THE CLERK: I guess it would be SabreTech 23 1. 24 THE COURT: Admitted into evidence as 25 Defendant's Exhibit, SabreTech Exhibit Number 1. BRENNAN - CROSS (RASKIN) 91 1 (Defendant SabreTech's Exhibit 1 in 2 evidence.) 3 BY MS. RASKIN: 4 Q. Sir, that approval is the approval that 5 classified the oxygen generators as a flammable solid, 6 correct, sir? 7 A. If I recall, it is a letter of classification 8 that classifies this as a flammable solid, yes, 9 ma'am. 10 Q. Between the date of the issuance of approval in 11 1970 and May of 1996, that is the only existing 12 approval that Scott Aviation has with respect to the 13 shipment of that generator; is that correct, sir? 14 A. I don't understand what you mean. That is a 15 letter of classification. The generator is shipped 16 under FAA, PMA approval. That is my -- that -- to my 17 understanding, that is the level of classification. 18 MS. RASKIN: May I have permission, Your 19 Honor, to approach and retrieve my exhibit? 20 THE COURT: Yes. 21 MS. RASKIN: Thank you. 22 THE WITNESS: Your Honor, there is two 23 original exhibits sitting here. 24 THE COURT: Thank you. 25 Would you hand them to Ms. Raskin and she BRENNAN - CROSS (RASKIN) 92 1 will put them on the table there. Just lay them on 2 the table right in front of the Court Reporter. 3 Thank you. 4 Q. I would ask you to look at that document, sir, 5 and just confirm, if you can, that it states that the 6 appropriate classification of the generators is as a 7 flammable solid. 8 A. The letter does classify this as a flammable 9 solid NOS under 173.145 of tariff number 23, ma'am. 10 Q. And it was your understanding and is your 11 understanding, sir, that without having received that 12 document from the Bureau of Explosives, Scott Aviation 13 would not have had authority to ship its generators? 14 A. (Pause) 15 MRS. MILLER: If I could ask, at what time, 16 Your Honor? 17 THE COURT: We are asking him his opinion 18 about things now, and I don't know where this leads 19 us, but -- 20 MS. RASKIN: Sir -- 21 THE COURT: He is talking about facts. 22 This is an opinion. 23 Suppose he were to say in response to your 24 last question, no, it doesn't say that at all, and 25 suppose the document does say that? The jury does BRENNAN - CROSS (RASKIN) 93 1 have the document. We are getting off into asking him 2 what something says or his interpretation of it. 3 These are opinions and he is not an expert. 4 But I guess the question is, could your 5 company have shipped these cannisters if the 6 appropriate authority had not written that letter? 7 THE WITNESS: The reason for my hesitation, 8 Your Honor -- 9 THE COURT: If you know. Do you know or 10 not? 11 THE WITNESS: The reason for my 12 hesitation -- 13 THE COURT: Say yes or no. Do you know or 14 not? Do you know the answer to the question? 15 THE WITNESS: It is my belief that at this 16 time you are required to go to the Bureau of 17 Explosives, a private organization, and get a 18 classification before shipping something with a 19 precaution cap in it, Your Honor. 20 THE COURT: And this time, being prior to 21 this crash in May of 1996? 22 THE WITNESS: Yes, at this time it was 23 1971. 24 THE COURT: Next question. 25 BY MS. RASKIN: BRENNAN - CROSS (RASKIN) 94 1 Q. And further, Mr. Brennan, you say that the reason 2 you needed that was because of the percussion cap. 3 The reason the percussion cap in turn requires that is 4 because the percussion cap contains an explosive; 5 isn't that correct, sir? 6 A. I don't know the technical nature of the material 7 that they use in that cap, so I can't answer your 8 question, other than my understanding is percussion 9 caps in general had to go to the Bureau of Explosives 10 to be classified. 11 Q. Mr. Brennan, do you recall testifying before the 12 NTSB hearing in 1996 to the effect that your 13 understanding was that the initiate cap is technically 14 explosive and you couldn't ship any of this explosive 15 without being specifically reviewed in those years by 16 the Bureau of Explosives? 17 A. Yes. It is regulated. If it is not classified 18 it is regulated, to my understanding, as a class A 19 explosive, which means it is forbidden for shipment 20 unless you get it classified. 21 Q. Between the time that classification was issued 22 in 1970 and May of 1996, did Scott ever go back to the 23 Bureau of Explosives, or any successor agency in the 24 Department of Transportation, and seek a different 25 classification? BRENNAN - CROSS (RASKIN) 95 1 A. Well, first of all, the Bureau of Explosives was 2 not -- 3 THE COURT: Did you or not? Answer the 4 question. Then you can explain it. 5 THE WITNESS: The answer basically is no, 6 because the Bureau of Explosives, first of all -- 7 THE COURT: She didn't ask you why. She 8 just asked you if you did. Did your company or did it 9 not? 10 THE WITNESS: We did not go back to the 11 Bureau of Explosives. 12 THE COURT: Good. Next question. 13 Q. Did you go to any agency of the DOT that may have 14 succeeded the Bureau of Explosives with regard to the 15 approval process of explosives such as the oxygen 16 generator? 17 THE COURT: Up to the time of the crash. 18 Q. Up to the time of the crash. 19 A. My understanding is, the oxygen generator is not 20 explosive. And the question said explosive devices 21 like your oxygen generator. 22 THE COURT: So I guess the answer is no, 23 you did not. 24 THE WITNESS: That's correct. 25 THE COURT: That's a very simple answer. BRENNAN - CROSS (RASKIN) 96 1 Let's try to answer the question. 2 Next question. 3 Q. With respect to the percussion cap which contains 4 an explosive and is a component of the oxygen 5 generator, did you return to any agency of the 6 Department of Transportation that may have succeeded 7 the Bureau of Explosives to request a different 8 classification of the generator? 9 A. Yes. But after the accident. 10 THE COURT: Limit your answers to before 11 the accident. All of them, from now on. 12 Next question. 13 Before the accident, no, you did not; is 14 that correct? 15 THE WITNESS: That's correct, Your Honor. 16 THE COURT: Next question. 17 Q. Mr. Brennan, you testified on direct examination 18 that in, I believe, August of 1988, Scott for the 19 first time began affixing a warning label to the new 20 generators it was manufacturing. Is that correct? 21 A. That is correct. 22 THE COURT: This is after the accident? 23 MS. RASKIN: No, sir, this is before the 24 accident. 25 THE COURT: You said 1998. BRENNAN - CROSS (RASKIN) 97 1 MS. RASKIN: I'm sorry, I misspoke. I 2 meant to say 1988, sir. 3 THE COURT: And that one, the accident was 4 in 1996, correct? 5 MS. RASKIN: Correct. 6 THE COURT: All right. 7 With that modification, what is your 8 answer? 9 THE WITNESS: Yes, sir. 10 THE COURT: All right, next question. 11 Q. Those warning labels were placed on the new 12 generators that were manufactured after that date, 13 correct, sir? 14 A. Of the McDonnell Douglas type, yes, ma'am. 15 Q. But before Scott realized that, there remained in 16 airplanes flying around the country a number of -- 17 probably thousands of Scott generators that did not 18 contain that label because they were manufactured 19 before the decision to use it, correct? 20 A. That is correct, ma'am. 21 Q. And in order to address that problem, Scott 22 Aviation sent out a service bulletin; did it not, sir? 23 A. Scott Aviation prepared the service bulletin, 24 yes, ma'am. 25 Q. And that service bulletin that was prepared by BRENNAN - CROSS (RASKIN) 98 1 Scott Aviation was sent out to all operators of MD-80 2 and DC-10 aircraft by McDonnell Douglas; is that 3 correct sir? 4 MRS. MILLER: Objection to what was done by 5 McDonnell Douglas. 6 MS. RASKIN: I will rephrase the question. 7 THE COURT: All right. Your company 8 prepared a memorandum and sent them, as you said, to 9 those people. 10 THE WITNESS: Yes, Your Honor. 11 THE COURT: Was that done under your 12 direction or someone else's or what? 13 THE WITNESS: No. At that time that was 14 done by the tech pub area, which was not under my 15 control. 16 THE COURT: Do you know of -- well, I guess 17 you would know if they had told you; but do you of 18 your own knowledge know who they sent those 19 memorandums to? 20 THE WITNESS: We sent them to McDonnell 21 Douglas, Your Honor. 22 THE COURT: To McDonnell Douglas Aircraft 23 Company. 24 THE WITNESS: That's the air frame 25 manufacturer, yes, sir. BRENNAN - CROSS (RASKIN) 99 1 THE COURT: Where, in Washington 2 someplace? 3 THE WITNESS: No, that was out in 4 California. 5 THE COURT: All right. Next question. 6 MS. RASKIN: May I approach, Your Honor? 7 THE COURT: Yes. 8 BY MS. RASKIN: 9 Q. Mr. Brennan, I am showing you what has been 10 marked as SabreTech Exhibit 2, and I would ask you to 11 turn to the last two pages of that. 12 A. Yes, ma'am. 13 Q. Do you recognize that document? 14 A. Yes, I do. 15 Q. What do you recognize it to be? 16 A. Well, it is actually a three-page document. 17 Q. I apologize, sir. Three-page document. 18 A. That's the service bulletin prepared by Scott 19 Aviation in the end of '97 or the beginning of '98. 20 Q. And it is your understanding, is it not -- 21 THE WITNESS: I misspoke. '87 or the 22 beginning of '88. 23 THE COURT: '87, '88. Go ahead. 24 Q. It is your understanding, is it not, that the 25 service bulletin was prepared at the request of BRENNAN - CROSS (RASKIN) 100 1 McDonnell Douglas Corporation? 2 A. And the FAA. 3 Q. And it was prepared and then combined with a 4 McDonnell Douglas all operators letter; is that 5 correct, sir? 6 A. It went with a McDonnell Douglas all operators 7 letter, that is correct. 8 Q. I would address your attention to the first two 9 pages of that document and ask you whether that is the 10 McDonnell Douglas all operators letter that you 11 referred to. 12 A. (Pause) 13 Yes, it appears it is. 14 Q. Mr. Brennan, is this document, the McDonnell 15 Douglas all operators letter and the attached Scott 16 service bulletin, a record that was kept by Scott 17 Aviation in the regular course of its business? 18 A. I don't know where this copy originated, but we 19 have a copy of the AOL at the service bulletin, yes. 20 Q. Is it the regular practice of Scott Aviation to 21 maintain records such as this, the service bulletin 22 and attached McDonnell Douglas AOL, all operators 23 letter? 24 A. The service bulletin definitely. We do not 25 normally retain McDonnell Douglas AOL letters, but we BRENNAN - CROSS (RASKIN) 101 1 did retain this one. 2 Q. Okay. And is it your understanding that this 3 document was created at or about the time that the 4 event it refers to occurred? 5 A. Excuse me? 6 THE COURT: He gave you the date when it 7 was sent out. 8 Was it created about that time in 1987, 9 '88? 10 THE WITNESS: Yes, the document dated 11 February 21, 1989, but it was created sometime in '88. 12 THE COURT: Go ahead. 13 MS. RASKIN: I would move the admission of 14 SabreTech Exhibit 2. 15 MRS. MILLER: I object on the ground of 16 relevance. This was a document that went from Scott 17 to McDonnell Douglas. No showing of relevance to this 18 case. 19 THE COURT: I will listen to both of you at 20 the next recess. We'll mark it for identification, 21 unless you were going to have more examination on this 22 document. Were you? 23 MS. RASKIN: No, that is fine. I can 24 wait. 25 Well, I would like to proceed and ask him BRENNAN - CROSS (RASKIN) 102 1 questions about it, but may I do that without 2 referring to the document? 3 THE COURT: Well, it is not in evidence at 4 this point so you can't ask any questions about it 5 beyond identifying it. If you have no other area you 6 can go into, we can excuse the jury and take this up. 7 If you do, you might go past that and at the next 8 recess we'll get into it. 9 Is there anything else you can go into at 10 this time? 11 MS. RASKIN: Yes, sir, there is. 12 Q. You mentioned several times that the oxygen 13 generators have a life limit of 12 years. You -- 14 correct? 15 A. At this time, yes, ma'am. 16 Q. And that they cannot be reused? 17 A. That is correct. 18 Q. They are just a one-time item; once they are 19 used, they cannot be reused. 20 A. That is correct. 21 Q. My question is, did Scott ever, between the time 22 the generators were first manufactured and the time of 23 the crash in May of 1996, print on any of the oxygen 24 generators or label them in any way to indicate that 25 they are a life-limited part? BRENNAN - CROSS (RASKIN) 103 1 A. I don't believe so, ma'am. 2 Q. Did the generators during that period of time 3 ever contain any information to the effect that they 4 cannot be reused? 5 A. You mean on the exterior container? 6 Q. Correct. 7 A. I don't believe so, ma'am. 8 Q. Was there anywhere, interior or exterior, that 9 they contain such information? 10 A. Not to my knowledge. 11 Q. This morning you described the procedure that 12 Scott uses to prepare the oxygen generators, the new 13 oxygen generators, for shipment. 14 A. At an earlier period of time. Not new today. 15 Q. Not new today. I am referring to the period of 16 time prior to May of 1996. 17 A. Yes, ma'am. 18 Q. And you testified that you first tightly wind the 19 lanyard through the firing pin and then wrap it around 20 the body of the generator, correct? 21 A. The first part of your question didn't make sense 22 to me about winding it through. We assembled the 23 lanyard and then the lanyard to the generator and then 24 take it around the top of the housing and then the 25 excess around the body. BRENNAN - CROSS (RASKIN) 104 1 Q. And the purpose of that procedure is to keep the 2 firing pin from pulling out and accidentally 3 discharging the generator; isn't that correct, sir? 4 A. The purpose of that procedure is to eliminate 5 slack in that lanyard that could catch and pull the 6 pin out and to keep the rest of the lanyard from 7 tangling it up, to keep it straight on the cylinder. 8 Q. The reason that is important, you want to make 9 sure it does not allow the generator to accidentally 10 discharge, correct? 11 A. No, ma'am, the generator has a cap on tight 12 prevent the discharge. The pulling of the pin would 13 allow the hammer to fall, but against the cap it won't 14 do anything. Then you have to go through the business 15 of holding the hammer back and threading the pin back 16 into the guide tube and everything in order to put the 17 generator back in service. 18 Q. And that's -- the method of wrapping the lanyard 19 that you have described, however, is another method of 20 preventing accidental discharge of the generator; 21 isn't that correct? 22 A. No, ma'am. You can still pull the pin. That is 23 to keep the pin from being pulled by slack. The way 24 to keep it from being discharged is to put the cap 25 over the percussion cap. BRENNAN - CROSS (RASKIN) 105 1 Q. Do you recall, Mr. Brennan, testifying before the 2 NTSB -- 3 THE COURT: This will be asking -- oh, I'm 4 sorry. His testimony. 5 MS. RASKIN: Correct. 6 THE COURT: All right, go ahead. 7 Q. Do you recall being asked by Mr. Henderson about 8 that design: "Basically that design is an attempt to 9 keep the pin inside of that sheath so it doesn't pull 10 free?" 11 And answering on your part: "Yes, sir. 12 The whole intent of the packaging is to prevent 13 accidental initiation of the generator during 14 shipment." 15 Do you remember that? 16 A. Yes, I do, that was in the context of describing 17 the total package in which we described the heat 18 shrinking and everything we do to keep from tampering, 19 moving or touching anything on the generator. 20 Q. If I may, Mr. Brennan, the question before your 21 answer was: "Okay. You mentioned the lanyards as 22 well as the safety cap you wrapped the lanyards 23 around." 24 You answered: "Yes, sir. The lanyards are 25 supplied with the generator because they are attached BRENNAN - CROSS (RASKIN) 106 1 to the initiate pin. When you go into the aircraft, 2 you have to attach the end of the lanyard to the 3 mask. Now these lanyards are quite long, so the 4 lanyard is first tied around the initiation mechanism 5 to make sure there is no slack that can catch and fall 6 on the pin, and then the balance is tied around the 7 body of the generator and secured with the rubber band 8 and that is all under shrink wrap. 9 "Question: And basically that design is 10 an attempt to keep the pin inside of the sheath so it 11 doesn't pull free? 12 "Answer: Yes, sir. The whole intent of 13 the packaging is to prevent accidental initiation of 14 the generator during motion of shipment." 15 So, sir, you are not saying, are you, that 16 the wrapping of the lanyard was not a part of the 17 design intended to keep the pin from falling from the 18 sheath and preventing accidental discharge; are you? 19 A. I am saying in that testimony and I am saying 20 today that it's all part of the packaging when we ship 21 it out. Tying the lanyard around the top and running 22 it around the bottom is intended to prevent slack from 23 pulling the pin, okay? You asked me what is intended 24 to set -- to keep the generator from going off, and 25 that's the cap. BRENNAN - CROSS (RASKIN) 107 1 THE COURT: Let me ask you a question, sir, 2 just one simple question. If there is a cap in place 3 prior to shipment, if the lanyard is pulled, will the 4 generator ignite and start to make the oxygen? 5 THE WITNESS: No, Your Honor. 6 THE COURT: Thank you. 7 Q. If I may ask you, sir, if there were not a cap 8 present, would it be not important to have the 9 lanyards wrapped in the method you have described to 10 prevent an accidental discharge? 11 A. Wrapping the lanyards the way I described can't 12 be sure to prevent an accidental discharge. We do 13 it. I told you why we do it. But to be sure it would 14 prevent an accidental discharge, you cover the 15 percussion cap. 16 Q. But, sir, if the percussion cap is covered and 17 that's the only method of safety you are concerned 18 about, then what is the point of wrapping the lanyard 19 so that you keep the pin from coming out? 20 THE COURT: He has already answered that 21 question. 22 THE WITNESS: Yes. 23 THE COURT: Let's move on. 24 Q. I just have one other quick question. And that 25 is, sir, you testified you were Scott Aviation's party BRENNAN - CROSS (RASKIN) 108 1 representative to the NTSB in connection with the 2 ValuJet accident. 3 A. Yes, ma'am. 4 Q. Could you explain what NTSB stands for? 5 A. National Transportation Safety Board. 6 Q. And what, sir, is your understanding of the 7 function of the National Transportation Safety Board? 8 THE COURT: Oh, you -- yes, ma'am. 9 You object. Sustained. 10 He is not here to give an opinion of the 11 duties of that agency. He is not an expert in that. 12 MS. RASKIN: With reserving the issue that 13 we discussed before, I am finished. 14 THE COURT: All right. Fine. 15 Any other questions, Mr. Dunlap? Do you 16 have any? 17 MR. DUNLAP: No, Your Honor. 18 THE COURT: Let's go through redirect and 19 we'll leave that one issue for the end. 20 REDIRECT EXAMINATION 21 BY MRS. MILLER: 22 Q. Mr. Brennan, what is it that keeps an oxygen 23 generator from igniting other oxygen generators when 24 it is in place in the airplane? 25 A. Lack of physical -- they are not touching each BRENNAN - REDIRECT (MILLER) 109 1 other, so one can't affect the other. 2 Q. What, if anything, covers an oxygen generator 3 when it is in place in an airplane? 4 A. Well, when it is stowed, it goes -- at -- 5 McDonnell Douglas type generators, they usually go 6 behind heat shields, but all of them go behind a 7 closed panel that doesn't open until the oxygen is 8 required. 9 Q. What is a heat shield? 10 A. It is a curved -- originally aluminum, I think, 11 and McDonnell Douglas now makes them out of plastic. 12 It is a curved piece of white plastic with holes in it 13 that holds little oxygen masks, little yellow cups, 14 and holds the generator in place, but provides a gap 15 for air to flow around the generator. 16 Q. Following the Bureau of Explosives's letter of 17 the early 1970s, why did Scott Aviation not go back to 18 any governmental authority before starting to use the 19 classification of oxidizer for oxygen generators? 20 A. Well, my recollection, there was a change to the 21 CFRs; and under the new regulations, sodium chlorate 22 was a listed material. And if you shipped with sodium 23 chlorate, it was -- the shipping requirements -- I 24 read them out in the courtroom here yesterday. And 25 that was what you were supposed to use. BRENNAN - REDIRECT (MILLER) 110 1 Q. Were those the pages from the hazardous materials 2 table you read out yesterday, Mr. Brennan? 3 A. Yes. 4 Q. You used the abbreviation "CFR." Do you know 5 what that stands for? 6 A. Yes, I do. 7 Q. Tell us, please. 8 A. Code of Federal Regulations. 9 Q. With regard to the life limit on oxygen 10 generators, Mr. Brennan, what entity is it that sets 11 or states the life limit on oxygen generators? 12 A. The OEM, aircraft manufacturer, states it and 13 gets -- files it with the FAA. 14 Q. Is that a Scott Aviation determination? 15 A. Originally we recommended ten years. The 16 extension to twelve years was handled by McDonnell 17 Douglas with the FAA. 18 MRS. MILLER: I have no other questions, 19 Your Honor. 20 THE COURT: All right. Ladies and 21 gentlemen, we'll take up this matter. 22 Ladies and gentlemen, if you would step on 23 into the jury room, we will attempt to be brief. 24 Thank you. 25 (The jury withdrew from the courtroom at MOTIONS 111 1 2:03 p.m.) 2 THE COURT: I am not sure of the exact 3 wording of the question, but it dealt with the subject 4 matter of the dissemination of a letter on -- 5 operating manual page or pages by Scott Aviation, sent 6 to McDonnell Douglas aircraft. And I have forgotten 7 the exact wording of the question. The objection was 8 materiality. I think the question had something to do 9 with it -- what happened after it left McDonnell 10 Douglas, but I am not sure. 11 Could you refresh my recollection as to 12 what the question was that was objected to? 13 MS. RASKIN: I believe that Mrs. Miller 14 objected to the introduction of the document on the 15 basis that -- 16 THE COURT: Well, she can -- 17 MRS. MILLER: That's correct. 18 THE COURT: The document is Exhibit Number 19 2 for McDonnell Douglas. Defendant's Exhibit 2 we are 20 talking about, what is your objection? 21 MRS. MILLER: Relevance and materiality. 22 The testimony is this was a document sent from Scott 23 Aviation to McDonnell Douglas, and there is no linkage 24 of that document to the defendants here or to the 25 events in this case. MOTIONS 112 1 THE COURT: Will you be able to link it up 2 as being connected with ValuJet or SabreTech? 3 MS. RASKIN: The way I would like to link 4 it up is in a sense precisely the way Miss Heck just 5 did it for me. The point is, this was sent to 6 airlines, operators; it was not sent to repair 7 stations such as SabreTech. And I am introducing the 8 document to show that SabreTech and repair stations 9 like it were never notified that there was a new 10 warning label that they could call Scott Aviation and 11 purchase to put on old generators such as the ones at 12 issue in this case. So it goes directly to the state 13 of mind of SabreTech. 14 THE COURT: It is not material. The 15 objection is sustained. 16 You can argue to the jury they were never 17 told, that's all you have to do. You don't have to 18 hand in a bunch of documents that were circulated 19 elsewhere or whatever. That wouldn't prove you never 20 got it. I presume it would be a simple thing to do, 21 call some executive from one of the companies and say, 22 Did you ever get this, and say no, if that is 23 important. But if you never got it, you couldn't be 24 held responsible. 25 Objection sustained. MOTIONS 113 1 You may step down. You are excused. 2 (Witness excused.) 3 THE COURT: Who is your next witness? Does 4 it involve Mr. McGuirk's motion? 5 MRS. MILLER: No. That relates to the 6 witness following the next witness. 7 THE COURT: All right. Call your next 8 witness, please. 9 (The jury re-entered the courtroom at 2:05 10 p.m.) 11 THE COURT: All right, your next witness. 12 MICHAEL FRANCIS QUAN, sworn. 13 COURT REPORTER: State your full name for 14 the record, please. 15 THE WITNESS: Michael Francis Quan. 16 DIRECT EXAMINATION 17 BY MRS. MILLER: 18 Q. What is your occupation? 19 A. I am a quality chrome inspector. 20 Q. For whom do you work? 21 A. I work for Solair. 22 Q. Where is that located? 23 A. In Ft. Lauderdale, Florida. 24 Q. You have recently begun that job? 25 A. Yes. QUAN - DIRECT (MILLER) 114 1 Q. And do you hold any professional licenses or 2 certificates related to aviation? 3 A. Yes. 4 Q. What licenses or certifications do you hold? 5 A. I hold an air frame and power plant certificate. 6 Q. For how long have you held those? 7 A. For ten years. 8 Q. Is that one certificate or two certificates? 9 A. Two certificates. 10 Q. And what does air frame refer to? 11 A. Air frame refers to that part of the aircraft 12 which is not engine related. 13 Q. And what does power plant refer to? 14 A. It refers to the engine and its components. 15 Q. Now, when did you first come to Miami to live, 16 Mr. Quan? 17 A. In January of 1990. 18 Q. At that time were you working as an -- is there 19 an abbreviation for air frame and power plant? 20 A. Yes. 21 Q. What is that abbreviation? 22 A. A and P. 23 Q. In 1990 when you moved to Miami, were you working 24 as an A and P mechanic? 25 A. Yes, I was beginning a job as an A an P mechanic. QUAN - DIRECT (MILLER) 115 1 Q. Where did you work as an A and P mechanic? 2 A. For Eastern Airlines. 3 Q. Now, did there come a time when you stopped 4 working full-time and went to school? 5 A. Yes. 6 Q. And did there come a time when you received a 7 degree? 8 A. Yes. 9 Q. What degree did you receive and when? 10 A. I received an associate in arts and mechanical 11 engineering, and I received that in 1994. 12 Q. Did you resume work at some point thereafter as a 13 full-time A and P mechanic? 14 A. Yes. 15 Q. When was that? 16 A. That was in the fall of 1995. 17 Q. And where did you go to work? 18 A. I went to work for Dynair Tech of Florida. 19 Q. Where is -- where was that located? 20 A. That was located at Miami International Airport 21 on Northwest 36th Street, Building 25. 22 Q. Do you remember the street address? 23 A. I don't. 24 MRS. MILLER: Your Honor, counsel stipulate 25 that the address is 4900 Northwest 36th Street, QUAN - DIRECT (MILLER) 116 1 Building 25, Miami. 2 THE COURT: All right. 3 Q. Mr. Quan, how was it that you learned of the 4 prospect of working at Dynair Tech of Florida? 5 MR. DUNLAP: Objection. Hearsay. 6 MRS. MILLER: Let me rephrase that. 7 THE COURT: All right. 8 Q. Mr. Quan, who introduced you to Dynair Tech of 9 Florida? 10 A. Chris DeStefano. 11 Q. And how did you know Chris DeStefano? 12 A. He was a friend of mine for several years since 13 Eastern Airlines. 14 Q. Did Chris DeStefano bring you to meet anybody? 15 Withdrawn. 16 Whom, if anyone, did Chris DeStefano bring 17 to you meet at Dynair Tech of Florida? 18 A. He brought me to meet the director of 19 maintenance, Danny Gonzalez. 20 Q. Had you previously known Danny Gonzalez? 21 A. No. I had been acquainted with him, but not 22 known him. 23 Q. How is it you had been acquainted with Danny 24 Gonzalez? 25 A. I had seen him at Eastern Airlines. QUAN - DIRECT (MILLER) 117 1 Q. Do you see Mr. Gonzalez here in the courtroom 2 today? 3 MR. DUNLAP: I will stipulate Mr. Gonzalez 4 is here in the courtroom. 5 THE COURT: They stipulate the witness has 6 identified Mr. Danny Gonzalez. 7 THE WITNESS: Yes. 8 Q. Were you hired? 9 A. Yes. 10 Q. And what was your assignment? 11 A. To work with Chris DeStefano. 12 Q. What was your relationship? Were you on an equal 13 level with him or was one subordinate and one 14 superior? 15 A. I was subordinate to Chris. Chris was my direct 16 supervisor. 17 Q. By the time you went to work for Dynair Tech of 18 Florida, do you know who owned it? 19 A. No, I did not. 20 Q. Did there come a time when the name of the 21 company that you were working for changed? 22 A. Yes. 23 Q. And approximately when was that? 24 A. There were several changes, but in the fall of 25 1995 I learned that a company called Saber Liner was QUAN - DIRECT (MILLER) 118 1 purchasing Dynair Tech, and there were several 2 proposed name changes for our facility, but eventually 3 it became SabreTech Incorporated. 4 Q. And have you ever heard of the name Air Tech? 5 A. Yes. 6 Q. What, if anything, was the significance of Air 7 Tech in relationship to any possible name of the 8 business? 9 A. That was one of the proposed names for the 10 facility. 11 Q. After you went to work at SabreTech in the autumn 12 of 1995, what, if any, project were you assigned to 13 work on? 14 A. I was assigned to work with Chris DeStefano on 15 Ascera company project. 16 Q. What is Ascera? 17 A. Ascera is a South America airline. 18 Q. And you mentioned something called a C check? 19 A. Yes. 20 Q. Mr. Quan, what is a C check? 21 MR. MOSKOWITZ: Objection. Foundation, 22 Your Honor. 23 THE COURT: All right. Let's establish 24 that he has the requisite background and knowledge to 25 be qualified as an expert on his opinion about C QUAN - DIRECT (MILLER) 119 1 check. 2 MRS. MILLER: Your Honor, we would not 3 qualify him as an expert and I don't believe that is 4 the objection. I believe it is a question of fact, 5 and counsel is simply questioning his knowledge of 6 this fact, if I might inquire in that regard. 7 THE COURT: I don't believe that was their 8 objection. His objection was that there is no showing 9 that he has the requisite background to answer this 10 opinion type question. 11 What is a C check? That means he is going 12 to give us his opinion as to what a C check is. That 13 is not a fact question. The fact question is, do you 14 have a pen in your pocket, or something of that sort. 15 But if you ask him, what is a pen, you have to show 16 that he worked for Waterman Company for ten years or 17 so. 18 Q. What aircraft of Ascera Airlines was at Dynair 19 Tech of Florida awaiting this C check in the fall of 20 1995? 21 A. It was an Ascera DC-9 aircraft number 705. 22 Q. And were there any other Ascera aircraft that 23 arrived for similar work in 1995? 24 A. Yes. 25 Q. And what aircraft was that? QUAN - DIRECT (MILLER) 120 1 A. The aircraft number was 720, also a DC-9, and 2 that arrived in December of 1995. 3 Q. During the time that you were working on the 4 project concerning aircraft 705, were there problems 5 in connection with that project? 6 MR. DUNLAP: Objection. Vague. 7 THE COURT: All right. Unless you lay the 8 proper predicate. Sustained at this point. 9 Q. Mr. Quan, what were your specific 10 responsibilities with regard to work on 705? 11 A. I was hired to work in the control booth for the 12 C check. 13 Q. And what is the control booth? 14 A. The control booth is where the work cards are 15 located. 16 Q. And what were your responsibilities with regard 17 to work cards? 18 A. I was to help control the flow of the work cards 19 and also to make sure that the proper parts were 20 ordered and received. 21 Q. And did you make -- without telling us what they 22 were, did you make any suggestions with regard to the 23 flow of work cards? 24 A. Yes. 25 MR. DUNLAP: Objection. Relevance. QUAN - DIRECT (MILLER) 121 1 MRS. MILLER: I am trying to lay the 2 foundation counsel requested. 3 THE COURT: No. He simply asked for a date 4 is all he asked for. And we have gotten off into 5 these other matters now. 6 But when did you work on the DC-9, 705, in 7 the control booth? What date? 8 THE WITNESS: November of 1995. 9 THE COURT: November 1995. 10 And how long did you work there? How long 11 were you in that job working in the control booth? 12 THE WITNESS: Through the rest of the 13 year. Through the duration of the C check. 14 THE COURT: How long was that? 15 THE WITNESS: That was up until the end of 16 1995, late December. 17 THE COURT: So from October '95 to December 18 '95, is that it? 19 THE WITNESS: Yes. 20 THE COURT: Two months, you worked there 21 for two months? 22 THE WITNESS: In the control booth, yes, 23 approximately one and a half, two months, yes, sir. 24 BY MRS. MILLER: 25 Q. Mr. Quan, did your employment at Dynair Tech of QUAN - DIRECT (MILLER) 122 1 Florida continue after December of 1995? 2 A. Yes. 3 Q. And did you continue to perform a similar 4 function to what you had performed on 705 after 5 December of 1995? 6 A. Yes. 7 Q. With regard to the aircraft 705, and your 8 responsibilities concerning work cards, did you make 9 any suggestions? 10 MR. DUNLAP: Objection. Relevance to any 11 suggestions. There is no predicate -- 12 MRS. MILLER: Your Honor -- 13 THE COURT: Excuse me. There is a 14 relevancy objection here. 15 All right, ladies and gentlemen, if you 16 will step into the jury room, please. 17 (The jury withdrew from the courtroom at 18 2:17 p.m.) 19 THE COURT: Mr. Quan, what year did you 20 work there? 21 THE WITNESS: From 1995 into 1996. 22 THE COURT: What is the relevancy, 23 Mrs. Miller? 24 MRS. MILLER: The testimony of this witness 25 and the next two witnesses relate to an incident that QUAN - DIRECT (MILLER) 123 1 occurred in December of 1995 in this control booth. 2 It was an argument that took place and that was 3 witnessed by this individual on the stand now between 4 Danny Gonzalez and Christopher DeStefano. The subject 5 of the argument was a revised work card system that 6 Mr. DeStefano and Mr. Quan were putting in place. 7 THE COURT: Okay. 8 MR. DUNLAP: The point of my objection is, 9 if the issue is that there was a fight about a revised 10 work card system, why not just cut to the incident 11 itself. I don't see what the relevance is of 12 explaining why he instituted a new work card system, 13 which is where Miss Heck is going. If there was a new 14 work card system and somehow a fight developed, she 15 can just cut right to the chase and get to the facts. 16 THE COURT: If that is the purpose of the 17 testimony, is there any problem with asking him if he 18 observed in a certain time in '95 a dispute or 19 discussion between some of the employees over the 20 processing or handling or entries on the work card? 21 MRS. MILLER: Your Honor, I do intend to 22 ask him that. For that testimony to establish that it 23 was about the work cards, this witness will need to 24 testify as to what was done in that booth, the 25 physical arrangement that gave rise to this fight. QUAN - DIRECT (MILLER) 124 1 THE COURT: You are trying to prove who was 2 right or wrong? 3 MRS. MILLER: Absolutely not. 4 THE COURT: It wouldn't make any difference 5 and, therefore, is immaterial if he had an excellent 6 suggestion or he had a terrible suggestion, or 7 Mr. DeStefano had an excellent or terrible 8 suggestion. The fact that is material to the case is 9 apparently they had a dispute or argument over the 10 work cards. 11 MRS. MILLER: That's correct, Your Honor. 12 THE COURT: So leading up to what all they 13 did and when they went to lunch and what time they 14 came on and all that just doesn't matter. 15 MRS. MILLER: It is Mr. Dunlap who said I 16 am going to show why they changed the system. That is 17 not where I was going at all, and that is not what I 18 asked. 19 THE COURT: Well, I thought you asked him 20 if he had any suggestions implicitly to improve the 21 handling of the work cards. 22 MRS. MILLER: No, Your Honor. If you may 23 recall, what I asked, had there been a discussion 24 about suggestions. I told him to not say what the 25 suggestions were. QUAN - DIRECT (MILLER) 125 1 THE COURT: I will sustain the objection to 2 the last question. Perhaps you can get at it a 3 different way. 4 Bring the jury in. Let's move on. 5 (The jury re-entered the courtroom at 2:21 6 p.m.) 7 THE COURT: All right. Be seated. 8 Mrs. Miller. 9 BY MRS. MILLER: 10 Q. Did there come a time when you and Mr. DeStefano 11 rearranged the system of work cards in the control 12 booth? 13 A. Yes. 14 Q. Would you explain to us just physically what you 15 did to rearrange that system? 16 A. The system we came up with was a different 17 arrangement of the work cards. Instead of the cards 18 being vertically on the board, we were going to 19 arrange them horizontally. 20 Q. Were they organized differently in addition? 21 A. They were organized by -- no, by the same section 22 of the aircraft. 23 Q. Was there any chronological arrangement to them? 24 A. The only chronological -- the arrangement in that 25 respect was to priority of work to be done. QUAN - DIRECT (MILLER) 126 1 Q. And approximately when was this rearrangement 2 made? 3 A. This was approximately a week before Christmas in 4 1995. 5 Q. And was this rearrangement made with regard to 6 the work for 705 or 720? 7 A. Aircraft 720. 8 Q. Now, I am handing you what has been marked in 9 evidence -- 10 MRS. MILLER: If I might just show it to 11 counsel. (Showing to counsel.) 12 Q. I am handing you what has been marked as 13 Government Exhibit 71, and I would ask you to look at 14 that to yourself. 15 A. (Pause) 16 Q. Do you recognize Government Exhibit 71? 17 A. Yes. 18 Q. What do you recognize it to be? 19 A. This to be the floor plan of the SabreTech 20 facility. 21 Q. Is that floor plan substantially accurate? 22 A. Yes, it is substantially accurate. 23 THE COURT: Is there any objection to the 24 document by counsel? 25 MR. MOSKOWITZ: No objection, Your Honor. QUAN - DIRECT (MILLER) 127 1 THE COURT: Are you offering it into 2 evidence? 3 MRS. MILLER: I am. 4 THE COURT: Submit it into evidence, 5 Government Exhibit 71. 6 (Government's Exhibit 71 in evidence.) 7 MR. MOSKOWITZ: If there are any 8 inaccuracies, I would ask they be corrected. 9 MRS. MILLER: That was what I was about to 10 do with the witness. 11 THE COURT: If there are any to be 12 corrected, at the first recess, let's move it along. 13 MRS. MILLER: If I might display the large 14 version of this, Your Honor. 15 THE COURT: All right. Fine. 16 BY MRS. MILLER: 17 Q. If you would step down and explain to us the 18 floor arrangement. 19 MR. DUNLAP: If it please the Court, may my 20 client come over with me to view the exhibit? 21 THE COURT: Yes, certainly. If you are 22 going to use these, you have to be in a position to 23 see. Yes, you may. 24 MR. DUNLAP: Thank you, Judge. 25 Q. Could you please explain the physical layout of QUAN - DIRECT (MILLER) 128 1 the SabreTech main floor. 2 A. Okay. These are the two main hangars. This is a 3 hangar where the planes were parked and work was 4 actually done. 5 THE COURT: This is getting awkward, and it 6 is no one's fault. 7 May I ask the spectators in the first row 8 to move to the second row, and then all the counsel 9 and all the clients can walk in on that first row. 10 Sorry to do that. Or you can perhaps move 11 over to the side, wherever you are. But right now we 12 have people standing within inches of defense 13 counsel -- of the prosecution and table and so on. 14 All right, Mr. Dunlap, can you and 15 Mrs. Moskowitz see the diagram? 16 MR. DUNLAP: Yes, Your Honor. Thank you. 17 THE COURT: All right. It affords you a 18 little more privacy on these matters. 19 All right, would you describe the floor 20 plan to the jury, tell them what it is. 21 THE WITNESS: This is the hangar, one of 22 the hangars. This is another hangar. These are the 23 sliding doors, they move back and forth, and we park 24 the planes in there. 25 These were the work booths where we control QUAN - DIRECT (MILLER) 129 1 the C checks from. 2 This was a storage area where they kept the 3 parts. Purchasing, where the buyers were. 4 This is also a tools area in here. 5 And this was director of maintenance 6 office. 7 And this is 36th Street out here. We 8 received parts into this area. And this is the 9 storage receiving. 10 This is the planning department. Then you 11 have various shops that support the aircraft 12 maintenance. 13 Q. Can you indicate to us, Mr. Quan, which of these 14 rooms was the control booth for the Ascera Airlines 15 project? 16 A. This booth right here. 17 Q. Thank you. If you could resume your seat. 18 You told us there came a time the work 19 cards were rearranged in the work booth. Was access 20 to the work booth also changed at approximately the 21 same time? 22 A. Yes. 23 Q. In what way was access to the booth changed? 24 What had it been before the change? 25 MRS. MILLER: Your Honor, with the Court's QUAN - DIRECT (MILLER) 130 1 permission, I am going to move the chart so it doesn't 2 block anyone's view. 3 THE COURT: Thank you. 4 A. Access before the new system was -- access 5 available particularly to everybody, including the 6 mechanics. 7 We limited access to most of the hangar 8 except for those who had specific duties in the 9 control booth. That was me and the supervisors and, 10 of course, the management of the facility. 11 Q. And why was this done? 12 MR. DUNLAP: Objection. Relevance. 13 THE COURT: Sustained. Calls for an 14 opinion. 15 Next question. 16 MRS. MILLER: Your Honor, it is related to 17 the discussion that is coming up. 18 THE COURT: Well, it calls for his 19 opinion. It is not a fact. You may elicit facts from 20 him. He says it was changed. The fact would be when, 21 where, things like that; not why, not his opinion of 22 why. It is an opinion question. The objection is 23 sustained. 24 After the booth was changed, go ahead. 25 When it was changed, where did you sit in QUAN - DIRECT (MILLER) 131 1 the booth? 2 THE WITNESS: I was all over the booth. 3 THE COURT: All right. You sat like the 4 gorilla, wherever you wanted to. 5 Q. Did the lead mechanics have access to the booth 6 under the new system? 7 A. Yes. 8 Q. Did line mechanics have access to the booth under 9 the new system? 10 A. Generally not. 11 Q. Did there come a time when you observed a heated 12 discussion in that booth? 13 A. Yes. 14 Q. Approximately when was that? 15 A. Approximately four or five days before Christmas 16 1995. 17 Q. When was it in time in relationship to the 18 changes you just told us about? 19 A. It was the beginning of the second C check on 20 aircraft of 720 of Ascera Airlines. 21 Q. On what aircraft was that second C check? 22 A. Aircraft 720. 23 Q. What kind of aircraft was 720? 24 THE COURT: He already told us. A DC-9. 25 Q. I am showing you what has been marked as QUAN - DIRECT (MILLER) 132 1 Government Exhibit 2D and ask if you recognize that. 2 A. Yes. 3 Q. What do you recognize that to be? 4 A. As a DC-9 aircraft. 5 Q. Can you tell which DC-9 aircraft? 6 A. Aircraft 720. 7 Q. Of what airline? 8 THE COURT: You are asking him about the 9 picture. 10 You recognize it as a photograph. Have you 11 ever seen it before? You understand what it is, do 12 you? 13 THE WITNESS: Yes. 14 THE COURT: All right. Does it truly and 15 accurately portray what it purports to portray? 16 THE WITNESS: Yes. 17 THE COURT: Do you offer it in evidence? 18 MRS. MILLER: We do. 19 THE COURT: Any objection? 20 MR. MOSKOWITZ: No objection. 21 THE COURT: What is the exhibit number? 22 Q. There is a sticker on the back, Mr. Quan. Tell 23 us what that number is. 24 A. 2D. 25 THE COURT: 2D is admitted into evidence. QUAN - DIRECT (MILLER) 133 1 (Government's Exhibit 2D in evidence.) 2 BY MRS. MILLER: 3 Q. What is depicted in that photograph? 4 A. Ascera DC-9. 5 Q. And which DC-9 is this? 6 A. Aircraft 720. 7 Q. Is this the aircraft as to which the work cards 8 had been arranged in the control booth? 9 A. Yes. It has a different paint job, but it is the 10 same aircraft. 11 Q. Different paint job from when you saw it? 12 A. Yes. 13 Q. Describe to us what you observed on the occasion 14 of this discussion. 15 First of all, tell us what time of day you 16 first observed it. 17 A. This was between 7 and 7:30 in the morning. 18 Q. Where were you? 19 A. In the control booth. 20 Q. Was there anyone in there with you? 21 A. Chris DeStefano. 22 Q. What happened? 23 A. Danny Gonzalez walked into the control booth. 24 Q. And what did you observe Mr. Gonzalez to do? 25 A. He walked over to the board where the cards were QUAN - DIRECT (MILLER) 134 1 located. 2 Q. And did you observe anything after that? 3 A. Yes. 4 Q. What did you observe? 5 A. Well, actually he made a statement. 6 Q. What did he say? 7 A. He said, "What the fuck is this?" 8 Q. And what did you observe after that? 9 A. I observed Chris and Danny get into an argument. 10 Q. What did you hear -- did you hear Mr. DeStefano 11 make any response to Mr. Gonzalez? 12 A. Yes. 13 MR. DUNLAP: Objection. Hearsay. 14 THE COURT: Overruled on the basis of the 15 defendant was present. 16 Was he? Who was in the control booth at 17 this time? 18 THE WITNESS: Chris DeStefano, Danny 19 Gonzalez and myself. 20 THE COURT: And everything that was said 21 therein could be heard by the three people who were 22 there, is that right? 23 THE WITNESS: Yes. 24 THE COURT: You may answer. It is not 25 hearsay. QUAN - DIRECT (MILLER) 135 1 What did you hear said? What did 2 Mr. DeStefano -- the question was, what did 3 Mr. Gonzalez say, or what did Mr. DeStefano say in 4 response to Mr. Gonzalez, if anything? 5 THE WITNESS: Chris DeStefano responded, 6 "Danny, we have to do this C check differently. We 7 can't screw this one up like we did the last one." 8 MR. DUNLAP: I would renew the objection, 9 Your Honor. 10 THE COURT: Overruled. 11 What else? What was said next? 12 THE WITNESS: They got into an altercation 13 with a lot of curse words. 14 BY MRS. MILLER: 15 Q. Do you recall any of the content of what they 16 were saying? You don't need to tell us the curse 17 words, but can you tell us any of the contents of the 18 words they were saying? 19 A. Yes. They were discussing the new system that we 20 had for the C check. And they were arguing about 21 which system was better, or which was the best way to 22 do this. 23 Q. And what was said in that regard? 24 A. Chris said we had to do things differently, that 25 we can't screw this check up like we did the last one, QUAN - DIRECT (MILLER) 136 1 and Danny was disagreeing. 2 Q. What, if anything, was said with regard to who 3 would prevail? 4 A. Nothing at that point. They just continued the 5 argument. 6 Q. And did the argument end? 7 A. It did briefly, yes. 8 Q. And what happened that ended it? 9 A. Danny Gonzalez picked up several pieces of the 10 paper, the work cards, and walked out the door. 11 Q. Approximately how long did this argument last 12 that you observed? 13 A. Approximately three to five minutes. 14 Q. And after Danny Gonzalez walked out the door, 15 what happened next? 16 A. Chris followed him out the door and they were 17 still arguing and cursing. 18 Q. What were they saying? Again, skipping over the 19 curse words, please. 20 A. Chris was telling him how we have to do this C 21 check differently than the last one so we don't screw 22 it up. And Danny was disagreeing. 23 Q. And what, if anything, was referred to about 24 whose way it would get done? 25 MR. MOSKOWITZ: Objection. Leading. QUAN - DIRECT (MILLER) 137 1 MR. DUNLAP: Objection. Leading. 2 THE COURT: I think the problem here is we 3 are at a point we need to know what was said, 4 eliminating as best you can, if you can, the 5 profanity. Just tell the jury what you heard Chris 6 say to Danny and what you heard Danny say to Chris. 7 THE WITNESS: Chris was telling Danny that 8 we will do this check differently than the last check 9 was so screwed up we lost so many pieces of paperwork 10 that we have to do it differently this time. 11 Danny was disagreeing, saying, I want it 12 done the same way we did it before. I like the board 13 the way the previous one was. 14 And they continued on in those lines 15 arguing back and forth. 16 THE COURT: And then how -- 17 THE WITNESS: Also Chris was telling him, 18 we have to control the paperwork, we have to have more 19 control in this booth. We just can't allow access to 20 anybody like it was on the previous C check. 21 And Danny disagreed. 22 THE COURT: Then did Danny walk away or 23 Chris walk away, or how did it end? 24 THE WITNESS: Danny walked out the door, 25 Chris followed him. Danny had several of the work QUAN - DIRECT (MILLER) 138 1 cards in his hand, approximately ten to twelve of the 2 work cards in his hand. He walked out of the door 3 with Chris in hot pursuit. They were still arguing 4 and there were curse words. 5 THE COURT: Then what happened after that? 6 THE WITNESS: Danny walked out to the floor 7 and handed several of the cards out to some of the 8 mechanics. 9 THE COURT: What happened next? 10 THE WITNESS: I continued into the booth 11 and approximately 20 minutes later -- I'm sorry, 12 approximately five to ten minutes later, Danny and 13 Chris came back into the booth. And they were still 14 arguing. And still going back and forth. 15 Finally it ended with, "We are going to do 16 it my way" -- Danny saying, "We are going to do the C 17 check my way, change the board back." 18 BY MRS. MILLER: 19 Q. Mr. Quan, as between Danny Gonzalez and 20 Christopher DeStefano, who was superior to whom? 21 A. Danny Gonzalez was superior to Chris DeStefano. 22 Q. And did there come a time when you left the work 23 booth and left them there? 24 A. Yes. 25 Q. And when was that and how did that come about? QUAN - DIRECT (MILLER) 139 1 A. When they came back into the booth the second 2 time, Danny Gonzalez turned to me and politely asked 3 me to leave, and I did. 4 Q. Where did you go? 5 A. I stepped outside the booth. 6 Q. How far outside the booth? 7 A. Several feet. Maybe 20 feet. 8 Q. Was the door closed behind you? 9 A. I closed the door behind me. 10 Q. What could you hear from your position from 11 approximately 20 feet outside the booth? 12 A. Arguing and cursing. 13 Q. Could you hear the content of what was being 14 said? 15 A. Yes. 16 Q. How is it you could hear that content? 17 A. Because they were very, very loud. 18 Q. Were there other people in the area where you 19 were? 20 A. Yes, there were mechanics and inspectors, a 21 hangar full of people. 22 Q. Did the sound carry to you? 23 MR. DUNLAP: Objection. Relevance. 24 THE COURT: Well, object to the form of the 25 question. QUAN - DIRECT (MILLER) 140 1 Did you hear what was going on? Not the 2 words, but the tone of the voice. 3 THE WITNESS: Yes. 4 THE COURT: Describe it to the jury. 5 THE WITNESS: We could hear the curse 6 words. From where I was standing outside the control 7 booth with the doors closed, we could very clearly 8 hear that was an irate argument going on in the 9 control booth. 10 BY MRS. MILLER: 11 Q. How long did that argument continue while you 12 were outside the control booth? 13 A. It continued approximately another five to ten 14 minutes. 15 Q. And could you -- were you able to see into the 16 work booth? 17 A. Yes. 18 Q. And why is that? How is that? 19 THE COURT: Well, that is his opinion. 20 Did you see into the work booth? 21 THE WITNESS: I did. 22 They are glass window partitions. 23 THE COURT: What did you see? 24 THE WITNESS: I saw Danny and Chris in the 25 booth arguing. QUAN - DIRECT (MILLER) 141 1 BY MRS. MILLER: 2 Q. Did there come a time when one or the other of 3 them left the work booth, that you could observe? 4 A. Yes. 5 Q. Which one left the booth? 6 A. Danny Gonzalez left the booth. 7 Q. Did there come a time later that day when you 8 again saw Danny Gonzalez at that booth? 9 A. Yes. 10 Q. Approximately how long was it afterward that you 11 again saw Danny Gonzalez at that booth? 12 A. It was approximately 20 minutes to two hours 13 later, Danny came back into the booth. 14 Q. And where were you? 15 A. I was in the booth. 16 Q. Who, if anyone, was in the booth with you? 17 A. Chris DeStefano. 18 Q. What did Danny do? 19 A. Danny walked in and in a calm way said hello to 20 us, and made a couple of statements. 21 Q. And was he carrying anything? 22 A. (Pause) I don't recall. 23 Q. Did he do anything? 24 A. Yes. 25 Q. First of all, did he make the statements before QUAN - DIRECT (MILLER) 142 1 he did something or did he do the thing before he made 2 the statement? 3 THE COURT: What did you see him do when he 4 came in the booth, if anything? 5 THE WITNESS: He walked into the booth, 6 said hello; then he walked over to the board and 7 picked up a work card. 8 THE COURT: And what? What did he do? 9 THE WITNESS: And I saw him sign something 10 off on the work card. 11 THE COURT: All right. 12 THE WITNESS: I saw him write on the work 13 card. 14 BY MRS. MILLER: 15 Q. Did you hear anything at that point? 16 A. Yes. 17 Q. What did you hear? 18 A. Danny made a statement to Chris and me in the 19 work booth that, "See, Chris, this C check will be 20 over before you know it." 21 Q. Did you observe or hear Danny Gonzalez do 22 anything further? 23 A. No. 24 Q. Did you observe him leave? 25 A. Yes. QUAN - DIRECT (MILLER) 143 1 Q. Before he left, did you see anything that 2 happened to the document that he had signed? 3 A. He placed it on a -- in a box on a table. 4 Q. Do you know what the document was? 5 A. Yes. 6 Q. How is it that you know what the document was? 7 THE COURT: I'm sorry. I'm sorry to 8 interrupt you. 9 He put a card on the table. What was the 10 card? 11 THE WITNESS: It was a work card related to 12 fuel bio-bor treatment of fuel tanks on the airplane. 13 THE COURT: Did you see what he had written 14 on the card? 15 THE WITNESS: No, I did not. 16 BY MRS. MILLER: 17 Q. How firm is your recollection as to what the 18 document was? 19 A. It is not very firm. 20 Q. What was Christopher DeStefano's position prior 21 to this discussion? 22 THE COURT: You mean, what was his job? 23 MRS. MILLER: Yes, sir, what was his title. 24 THE COURT: What was his job title? 25 THE WITNESS: He was supervisor. QUAN - DIRECT (MILLER) 144 1 Q. Did that change following this discussion? 2 A. He remained supervisor, but not on that project. 3 He switched. He was removed from the Ascera project 4 and placed on another project. 5 Q. What happened with regard to the new work card 6 system that you and Mr. Gonzalez -- excuse me, that 7 you and Mr. DeStefano arranged? 8 MR. DUNLAP: Objection. Relevance. 9 Foundation. 10 THE COURT: Well, did the work card 11 arrangement system you established or set up, did it 12 change at some time? 13 THE WITNESS: Yes, Your Honor. 14 THE COURT: When? 15 THE WITNESS: Immediately after the 16 argument, I switched it back to the old system. 17 THE COURT: Did you do that of your own 18 volition? 19 THE WITNESS: No. I did it on orders of 20 Danny Gonzalez. 21 THE COURT: And that occurred after the 22 argument? 23 THE WITNESS: Yes, Your Honor. 24 THE COURT: How soon after the argument? 25 THE WITNESS: Immediately after. QUAN - DIRECT (MILLER) 145 1 THE COURT: The same day? 2 THE WITNESS: The same day. After the 3 argument when Danny left the booth for the final time, 4 he said change it back, and I did. 5 THE COURT: All right. 6 BY MRS. MILLER: 7 Q. I would like to turn your attention to a later 8 period in time, Mr. Quan, 1996. Did you continue to 9 work at this company in 1996? 10 A. Yes. 11 Q. Did its name change? 12 A. Yes. 13 Q. And what project were you working on in the 14 spring of 1996? 15 A. I was working on Carnival Airlines, on their C 16 checks, and I was working on the Carnival Airbus. 17 Q. Were you aware of other projects ongoing in the 18 SabreTech repair station at the same time? 19 A. Yes, I was. 20 Q. And were you aware of any projects related to any 21 MD-80s? 22 A. Yes, I was. 23 MR. MOSKOWITZ: Objection. Foundation. 24 THE COURT: Sustained. 25 When, where, who was present? QUAN - DIRECT (MILLER) 146 1 Q. In the spring of 1996, Mr. Quan. 2 A. Yes, I was aware of other projects there, of 3 other aircraft and other airlines that the company was 4 working on. 5 Q. How is it that you were aware of them? 6 A. Because I saw them, and one of the supervisors 7 wanted me to go work on that project. 8 Q. Which project was that? 9 A. ValuJet. 10 Q. What type of aircraft were they? 11 A. They were both DC-9 and MD-80s. 12 Q. Did you go to work on that project? 13 A. No, I did not. 14 Q. Mr. Quan, I am handing you what has been marked 15 as Government Exhibit 36. Do you recognize Government 16 Exhibit 36? 17 A. Yes. 18 Q. When did you first see that? 19 A. In April of 1996. 20 Q. Where did you first see Government Exhibit 36? 21 A. This was posted right beside the time clocks. 22 Q. Is this at SabreTech? 23 A. At SabreTech, in the hangar facility. 24 Q. Did it relate to -- 25 THE COURT: Before we get into what it is, QUAN - DIRECT (MILLER) 147 1 could we establish it appears to be and it is genuine 2 and then offer it and then let's see. Let's not get 3 into what it is and what it says. 4 You have seen this document before? 5 THE WITNESS: Yes. 6 THE COURT: Is it an accurate and correct 7 copy or the original of what you saw before? 8 THE WITNESS: Yes, Your Honor. 9 THE COURT: And you saw it posted on a 10 bulletin board at ValuJet in April of 1996, is that 11 right? 12 THE WITNESS: Yes, Your Honor. 13 THE COURT: Are you offering it in 14 evidence? 15 MRS. MILLER: Yes. 16 MR. MOSKOWITZ: Objection, Your Honor. 17 Relevance. 18 THE COURT: All right. Marshal, hand it up 19 to me. Let me look at the relevancy. 20 The objection as to relevancy is 21 overruled. The document is admitted into evidence as 22 Government Exhibit 36. 23 (Government's Exhibit 36 in evidence.) 24 THE COURT: Now you may inquire what this 25 document is all about. QUAN - DIRECT (MILLER) 148 1 BY MRS. MILLER: 2 Q. Mr. Quan, what is this document all about? 3 THE COURT: Sorry. My fault. I misled 4 you. 5 I have no objection to you handing it to 6 the jury and letting them read it. It is a one-line 7 statement. 8 MRS. MILLER: I thought I would put it on 9 the magnifier, Your Honor. 10 THE COURT: All right. That will be good. 11 That will be great. 12 This basically says everybody has work 13 seven days a week. 14 THE WITNESS: Yes. 15 THE COURT: And did you do that, for the 16 period thereafter? 17 THE WITNESS: For the first week I did; but 18 I did not thereafter, I personally did not. 19 THE COURT: So you worked the first week 20 seven days a week? 21 THE WITNESS: Yes. 22 THE COURT: Your regular schedule. 23 THE WITNESS: Plus my days off. But after 24 that, I continued to take my days off. 25 BY MRS. MILLER: QUAN - DIRECT (MILLER) 149 1 Q. Who was this memo sent by, Mr. Quan? 2 MR. DUNLAP: Objection. Document speaks 3 for itself. 4 MRS. MILLER: Your Honor, it is pretty 5 small type. 6 THE COURT: Oh, well, the jury may have 7 trouble reading it then. 8 It is on SabreTech -- 9 MR. DUNLAP: If I may object. She asked 10 who it was sent by. Foundation. 11 THE COURT: Yeah. All right. 12 MRS. MILLER: Your Honor, may I read the 13 document out loud? 14 THE COURT: If you like, yes. 15 MRS. MILLER: "Inter-office memorandum, 16 SabreTech. To directors, supervisors and maintenance 17 personnel. From Danny Gonzalez. Re: Heavy work 18 load. Date, April 26, 1996. 19 "Effective immediately, due to the present |