UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE DAVID P. ADAM, ET AL., ) PAGES 1486 - 1652 ) PLAINTIFFS, ) BENCH TRIAL ) VS. ) NO. C 98-02094 CW (EDL) ) GAIL NORTON, ET AL., ) VOLUME 9 ) DEFENDANTS. ) OAKLAND, CALIFORNIA ____________________________) TUESDA, JULY 15, 2003 TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: LAW OFFICES OF MARY DRYOVAGE 240 STOCKTON STREET, NINTH FLOOR SAN FRANCISCO, CALIFORNIA 94108 BY: MARY DRYOVAGE, ATTORNEY AT LAW AARP FOUNDATION LITIGATION 601 E STREET, N.W. WASHINGTON, D.C. 20049 BY: TOM OSBORNE, ATTORNEY AT LAW FOR DEFENDANTS: KEVIN V. RYAN UNITED STATES ATTORNEY 450 GOLDEN GATE AVENUE SAN FRANCISCO, CALIFORNIA 94102 BY: JOCELYN BURTON ALISON E. DAW STEVEN J. SALTIEL ASSISTANT UNITED STATES ATTORNEYS REPORTED BY: RAYNEE H. MERCADO, CSR NO. 8258 I N D E X PLAINTIFFS' WITNESSES PAGE VOL. Reynolds, Mitchell Direct Examination by Ms. Dryovage 1490 9 Cross-Examination by Ms. Daw 1500 9 Redirect Examination by Ms. Dryovage 1507 9 Thomas, Thomas C. Direct Examination by Ms. Dryovage 1509 9 Cross-Examination by Mr. Saltiel 1557 9 Redirect Examination by Ms. Dryovage 1565 9 DEFENDANT'S WITNESSES PAGE VOL. Udinsky, Jerald Direct Examination by Mr. Saltiel 1570 9 Cross-Examination by Ms. Dryovage 1593 9 Further Cross-Examination by Ms. Dryovage 1623 9 I N D E X (CONT'D.) PLAINTIFFS' WITNESSES PAGE VOL. Grantz, Arthur Direct Examination (Rebuttal) by Ms. Dryovage 1628 9 Cross-Examination (Rebuttal) by Ms. Burton 1633 9 Direct Examination (Rebuttal) by Ms. Dryovage 1634 9 Cross-Examination (Rebuttal) by Ms. Burton 1636 9 Redirect Examination (Rebuttal) by Ms. Dryovage 37 9 Recross-Examination (Rebuttal) by Ms. Burton 1639 9 Wrucke, Chester Direct Examination (Rebuttal) by Ms. Dryovage 1640 9 Cross-Examination (Rebuttal) by Ms. Daw 1642 9 Redirect Examination (Rebuttal) by Ms. Dryovage 43 9 --O0O-- E X H I B I T S PLAINTIFFS' EXHIBITS W/DRAWN IDEN EVID VOL. 316 1554 9 331 through 354 and 357 through 360 1530 9 792 1524 9 793 1540 9 DEFENDANT'S EXHIBITS W/DRAWN IDEN EVID VOL. 1230 through 1252 1593 9 1238 1577 9 --O0O-- 1490 1 TUESDAY, JULY 15TH, 2003 8:37 P.M. 2 P R O C E E D I N G S 3 THE COURT: GOOD MORNING. IS SOMEONE GOING TO CALL 4 A WITNESS? 5 MS. DRYOVAGE: YES. MITCHELL REYNOLDS, PLEASE. 6 THE COURT: OKAY. 7 MS. DAW: COULD WE CLARIFY, YOUR HONOR, AS TO WHAT 8 THE SCOPE OF HIS TESTIMONY IS GOING TO BE? IS HE ONLY HERE TO 9 DESCRIBE THE POSTERS? 10 THE COURT: RIGHT. 11 MS. DAW: OKAY. 12 THE CLERK: YOU'VE PREVIOUSLY BEEN SWORN. YOU'RE 13 STILL UNDER OATH. 14 THE WITNESS: MA'AM? 15 THE CLERK: YOU'VE PREVIOUSLY BEEN SWORN, AND YOU'RE 16 STILL UNDER OATH. 17 THE WITNESS: YES, MA'AM. 18 MITCHELL REYNOLDS, 19 RE-CALLED AS A WITNESS FOR THE PLAINTIFFS, HAVING BEEN 20 PREVIOUSLY DULY SWORN, TESTIFIED AS FOLLOWS: 21 DIRECT EXAMINATION 22 BY MS. DRYOVAGE: 23 Q. GOOD MORNING, DR. REYNOLDS. WE CALLED YOU TO DESCRIBE 24 CERTAIN EVENTS THAT YOU HAD STARTED TO TALK ABOUT IN YOUR 25 EARLIER TESTIMONY. AT SOME POINT, DID YOU IN 1995 SEE CARTOONS 1491 REYNOLDS - DIRECT / DRYOVAGE 1 THAT RIDICULED OLDER EMPLOYEES? 2 A. LET ME -- LET ME REPHRASE. IN 1994, THE CARTOONS BEGAN TO 3 APPEAR ON THE -- ON THE OFFICE WINDOWS AND -- AND SELECTED 4 BULLETIN BOARDS. 5 Q. OKAY. AND PRIOR TO THAT TIME, WERE CARTOONS POSTED AROUND 6 THE OFFICE IN RESTON? 7 A. CARTOONS ARE A FORM OF SOCIAL CRITICISM IN THE USGS THAT 8 MANY PEOPLE EXPRESS THEIR CONCERNS ABOUT THE ORGANIZATION AND 9 ABOUT INDIVIDUALS IN THE ORGANIZATION BY TAKING CARTOONS AND 10 MODIFYING THE BALLOONS, THE WORDS ON THE CARTOONS AND THE LIKE, 11 SO -- 12 MS. DAW: OBJECTION, YOUR HONOR. THE TESTIMONY 13 LACKS FOUNDATION. HE CAN'T TESTIFY AS TO THE INTENT OF OTHER 14 PEOPLE IN POSTING CARTOONS. 15 THE COURT: OVERRULED. 16 BY MS. DRYOVAGE: 17 Q. SO PRIOR TO 1994, HAD YOU SEEN CARTOONS POSTED AROUND THE 18 OFFICE? 19 A. YES, MA'AM. I HAD. 20 Q. OKAY. AND WITH RESPECT TO CARTOONS FEATURING DINOSAURS, 21 WHEN DID THOSE START TO APPEAR IN THE OFFICE? 22 A. THE -- THE DINOSAURS BEGAN -- AND -- AND SIMILAR CARTOONS 23 BEGAN TO APPEAR IN APRIL ABOUT A WEEK -- A WEEK TO TWO WEEKS 24 AFTER GORDON EATON PRESENTED HIS ADDRESS TO ALL HANDS IN WHICH 25 HE MADE THE COMMENT ABOUT -- OR THE JOKE COMPARING THE GEOLOGIC 1492 REYNOLDS - DIRECT / DRYOVAGE 1 DIVISION WITH JURASSIC PARK. 2 Q. WHAT TYPES OF CARTOONS DID YOU SEE? 3 A. WELL, I RECALL THREE GENERAL TYPES OF CARTOONS. ONE WAS A 4 DINOSAUR WITH A TARGET ON ITS BELLY. IT WAS A BRONTOSAURUS OR 5 AN ALLOSAURUS WITH A TARGET ON ITS BELLY. THE SECOND CATEGORY 6 WAS FATHER TIME BENT OVER, INDIVIDUAL WITH FLOWING BEARD AND 7 LONG HAIR. 8 AND IN ONE CASE, WITH THE -- STILL CARING A SCYTHE, 9 AND OPPOSITE -- THE OPPOSITE END OF THE CARTOON WAS A -- WAS A 10 BABY IN DIAPERS. THE FATHER TIME FIGURE HAD IN CAPITAL LETTERS 11 "USGS" ACROSS IT, AND THE BABY WITH ITS DIAPER, THE DIAPER WAS 12 LABELED IN LOWER CASE LETTERS, "USGS." 13 Q. WAS THERE ANYTHING WRITTEN ON THIS FATHER TIME CARTOON? 14 A. YES, MA'AM. THE -- THE STATEMENT UNDERNEATH WAS "EATON SAYS 15 IT'S TIME TO GO" OR THERE -- OF THAT -- THAT'S APPROXIMATELY 16 WHAT IT SAID. YES. 17 Q. AND THE BRONTOSAURUS CARTOON, WAS THERE ANYTHING WRITTEN ON 18 THAT? 19 A. YES, MA'AM, THERE WAS. THE FOOT -- THE CAPTION ALONG THE 20 BOTTOM OF THAT CARTOON READ "EATON," COLON, QUOTATION MARKS, 21 "GS14, GS15, YOU'RE GONE NOW." 22 Q. AND DID YOU SEE ANY OTHER CATEGORIES OF CARTOONS? 23 A. THERE -- THERE WERE SOME OTHER CATEGORIES. THERE WERE 24 VARIANTS ON THE FATHER TIME WITH AN ELDERLY -- ELDERLY PERSON 25 MORE RESEMBLING A SCIENCE -- OR IN THIS CASE, A POLITICAL TYPE 1493 REYNOLDS - DIRECT / DRYOVAGE 1 WITH BEARD AND SO FORTH, AND -- AND A COMMENT WITH REGARD TO 2 TIME AND AGE. 3 Q. AND WHAT WAS THE COMMENT WRITTEN ON IT? 4 A. I -- I CANNOT REMEMBER THAT ONE CLEARLY. 5 Q. AND WERE THERE OTHER CARTOONS THAT DID NOT HAVE OLD PEOPLE 6 OR DINOSAURS ON THEM? 7 A. YES, THERE WERE A LARGE NUMBER OF THEM. I COULD CITE -- LET 8 ME CITE TWO. ONE, FOR EXAMPLE, WAS A CARTOON FROM "THE FAR 9 SIDE," WHICH SHOWED A GENTLEMAN WITH A -- WITH A SHOTGUN 10 SHOOTING AT A GROUP OF GEESE IN THE AIR. AND HE HAD HIT ONE OF 11 THE GEESE, AND THE GEESE WAS PLUMMETING TO EARTH, AND THE -- 12 THE -- OVERWRITTEN ON THE GOOSE'S NAME WAS MITCH -- OR I -- 13 YEAH, MITCH. 14 AND ANOTHER FORM WAS A SERIES OF SIX HISTORIC FIGURES 15 AND THEIR CHARACTERISTIC GARB. AND THE SIXTH FIGURE WAS ATTILA 16 THE HUN, AND EACH OF THE FIGURES WAS CAPTIONED BY ONE OF THE 17 SENIOR ADMINISTRATORS OF THE GEOLOGIC DIVISION SUCH AS THE CHIEF 18 GEOLOGIST OR OFFICE CHIEF OF MINERAL RESOURCES, OR WHATEVER. 19 AND ATILLA THE HUN WAS LABELED "MITCH." 20 THESE WERE VERY COMMON -- COMMON THINGS ON OFFICE 21 DOORS. 22 Q. OKAY. NOW, DURING THIS PERIOD OF TIME, FOLLOWING THE 23 ALL-HANDS MEETING IN APRIL -- THAT OCCURRED IN MARCH 1994, WHERE 24 DID YOU SEE THESE POSTERS OR THESE CARTOONS? 25 A. THE CARTOONS WERE ON -- ON OFFICE DOORS, INDIVIDUAL 1494 REYNOLDS - DIRECT / DRYOVAGE 1 SCIENTISTS' OFFICE DOORS, BOTH ON THE THIRD FLOOR AND ON THE 2 FOURTH FLOOR. ONE OF THE CARTOONS WAS SENT TO ME IN A -- IN A 3 HOLEY GOVERNMENT INTEROFFICE ENVELOPE, AND ABOUT THREE WEEKS 4 AFTER EATON'S TALK, ONE OF THE CARTOONS WAS CIRCULATED AT THE 5 GEOLOGIC DIVISION CHRON MEETING, THAT IS, THE MEETING OF THE 6 SENIOR OFFICERS OF THE GEOLOGIC DIVISION. IT WAS CIRCULATED FOR 7 THEIR VIEW. 8 Q. EXPLAIN WHY IN THE USGS BUILDING YOU SAW THE CARTOONS THAT 9 WERE POSTED ON DOORS? 10 A. I SAW CARTOONS POSTED ON THE THIRD FLOOR AND ON THE FOURTH 11 FLOOR. ON THE THIRD FLOOR, THEY WERE PRIMARILY POSTED IN 12 OFFICES AROUND THE BRANCH OF EASTERN REGIONAL GEOLOGY, AND THEY 13 WERE POSTED ON THE FOURTH FLOOR IN THE AREA OCCUPIED BY THE 14 GEOCHEMISTS AND THE MINERALOGISTS, THE OLD GROUP THAT WE CALLED 15 GEOCHEMISTRY AND GEOPHYSICS. OR -- YEAH. YEAH. 16 Q. WHERE WAS YOUR OFFICE IN RELATIONSHIP TO WHERE YOU SAW THESE 17 CARTOONS POSTED? 18 A. MY -- LET ME -- LET ME DESCRIBE VERY BRIEFLY WHAT THE 19 CIRCUMSTANCES WERE. 20 THE COURT: I'M SORRY. YOU NEED TO ANSWER THE 21 QUESTION. 22 THE WITNESS: OH, OKAY. 23 THE COURT: THE QUESTION WAS WHERE WAS YOUR OFFICE 24 IN RELATIONSHIP -- 25 THE WITNESS: OKAY. MY OFFICE WAS IN THE NORTHWEST 1495 REYNOLDS - DIRECT / DRYOVAGE 1 CORNER OF THE A STACK ON THE THIRD FLOOR OF RESTON NATIONAL 2 CENTER, THE USGS NATIONAL CENTER. 3 BY MS. DRYOVAGE: 4 Q. AND WHAT WAS THAT PART OF THE BUILDING REFERRED TO AS? 5 A. THAT PART OF THE BUILDING, THE A STACK, WAS REFERRED -- ON 6 THE THIRD FLOOR WAS REFERRED TO AS THE BROWN CARPET BECAUSE ALL 7 OF THE OFFICES WERE CARPETED IN A -- IN A MEDIUM BROWN CARPET, 8 WHEREAS THE BACK PARTS OF THE BUILDING WHERE THE SCIENTISTS AND 9 THE LABORATORIES WERE WAS GRAY TILE. WE CALLED THAT THE TILE. 10 Q. OKAY. AND THAT'S BECAUSE YOU WERE IN A MANAGEMENT POSITION 11 AT THE TIME THAT THESE CARTOONS STARTED TO APPEAR? 12 A. YES, MA'AM. I WAS THE CHIEF AT THE OFFICE OF REGIONAL 13 GEOLOGY. 14 Q. AND HOW DID YOU COME TO GO TO THE TILE AREA OF THE BUILDING? 15 A. WELL, I USED -- I WENT THROUGH THE TILE AREA TWICE A DAY. 16 IT WAS THE MOST CONVENIENT WAY TO GET TO THE BACK ELEVATORS AND 17 GET TO THE PARKING LOT. AND EACH DAY, I CHOSE A DIFFERENT ROUTE 18 SO THAT I COULD KEEP TRACK OF WHAT PEOPLE WERE DOING AND HOW 19 THINGS WERE GOING. 20 THE OTHER ASPECT OF THIS WAS THAT I WENT TO THE TILE 21 AREA FREQUENTLY TO TALK TO THE SCIENTISTS BECAUSE I FELT VERY 22 FIRMLY THAT DECISIONS COULD BE MADE BEST IF THE ADMINISTRATORS 23 KNEW THE SPECIFICS OF THE SCIENCE THAT OUR SCIENTISTS WERE 24 DOING. 25 Q. NOW, SUTTER, NAESER, AND SCHULTZ HAVE TESTIFIED THEY DON'T 1496 REYNOLDS - DIRECT / DRYOVAGE 1 RECALL SEEING THE CARTOONS AND POSTERS. WERE THEIR OFFICES IN A 2 DIFFERENT PLACE IN RELATIONSHIP TO THE CARTOONS THAT WERE POSTED 3 ON OFFICE DOORS? 4 A. IN THE CASE OF MR. SCHULTZ, HIS OFFICE WAS IN THE WEST 5 SOUTHWEST PART -- WEST SOUTHWEST PART OF THE -- OF THE C STACK 6 ON THE THIRD FLOOR. AND HE WAS AT -- AT THE END OR TOWARD THE 7 END OF THE GROUP THAT WAS OCCUPIED BY EASTERN REGIONAL GEOLOGY. 8 MR. SUTTER'S OFFICE WAS -- HE HAD TWO AREAS. HIS 9 ISOTOPIC LABORATORY WAS IN THE B STACK, WHICH IS TO THE NORTH 10 NORTHEAST OF THE BUILDING, AND HE HAD A SMALL WORKING OFFICE IN 11 THE NORTHEASTERN, ALMOST THE EASTERN END OF THE C STACK, WHICH 12 WAS AWAY -- OR EXCUSE ME -- THE D STACK, WHICH WAS AWAY FROM 13 BOTH EASTERN REGIONAL GEOLOGY. 14 AND NEITHER ONE OF THEM WERE ON THE FOURTH FLOOR OR 15 NEITHER ONE OF THEM HAD AN OFFICE ON THE FOURTH FLOOR. 16 Q. AND WHAT ABOUT MR. NAESER? 17 A. MR. NAESER'S OFFICE WAS -- ADJOINED MINE. WE HAD AN 18 ADJOINING WALL. HIS DOOR WAS 12 -- ABOUT 12 FEET FROM MY 19 OFFICE. 20 Q. AND WHERE WAS THAT IN RELATIONSHIP TO THESE CARTOONS? 21 A. WELL, THAT WAS IN THE -- IN THE NORTH NORTHWEST CORNER OF 22 THE -- OF THE A STACK ON THE BROWN CARPET. 23 Q. NOW, WHAT PERIOD OF TIME WERE THESE CARTOONS UP? 24 A. THEY WERE UP -- THEY WENT UP IN EARLY APRIL. AS I RECALL, 25 IT WAS ONE TO TWO WEEKS AFTER THE EATON ADDRESS, AND THEY WERE 1497 REYNOLDS - DIRECT / DRYOVAGE 1 UP -- UP IN THROUGH THE EARLY PART OF THE SUMMER, AND I CAN'T -- 2 BEYOND THE -- BEYOND JUNE, I CAN'T REALLY ANSWER. I WAS IN AND 3 OUT. 4 Q. AND HOW IS IT THAT YOU REMEMBER THESE EVENTS SO CLEARLY? 5 A. WELL, I HAVE TRADITIONALLY KEPT EXTREMELY DETAILED NOTES. 6 EACH OF MY WORKING DAYS, I KEEP TRACK OF TELEPHONE 7 CONVERSATIONS. I KEEP TRACK OF MEETINGS WITH INDIVIDUAL 8 SCIENTISTS. THESE ARE -- ARE RECORDED BY TIME, BY DATE, AND -- 9 AND SO FORTH, AND I HAVE KEPT SUCH RECORDS FOR ALMOST -- ALMOST 10 25 YEARS. 11 Q. OKAY. 12 NOW, I WOULD ASK TO BE ALLOWED TO ASK A FEW QUESTIONS 13 IN REBUTTAL TO SCHULTZ, NAESER, AND SUTTER'S TESTIMONY ABOUT 14 WHETHER OR NOT CERTAIN CONVERSATIONS OCCURRED THAT HE EARLIER 15 TESTIFIED TO. 16 MS. DAW: HE'S ALREADY TESTIFIED TO THEM, YOUR 17 HONOR. 18 THE COURT: IF THERE'S SOMETHING NEW THAT HE HASN'T 19 ALREADY SAID. 20 MS. DRYOVAGE: YES, THERE IS. 21 MS. DAW: YOUR HONOR, THE GOVERNMENT WOULD OBJECT ON 22 THE GROUNDS THAT THIS WITNESSED WAS EXCUSED, AND IT WAS OUR 23 UNDERSTANDING THAT HIS TESTIMONY THIS MORNING WAS FOR THE 24 LIMITED PURPOSE OF ANSWERING THE QUESTIONS THAT THE COURT 25 ASKED. 1498 REYNOLDS - DIRECT / DRYOVAGE 1 THE COURT: WELL, IF YOU HAVE A NEW QUESTION THAT 2 HASN'T BEEN ASKED BEFORE, YOU MAY ASK IT. 3 MS. DRYOVAGE: OKAY. 4 Q. DID YOU KEEP NOTES OF YOUR CONVERSATIONS WITH MR. SUTTER, 5 MR. NAESER AND MR. SCHULTZ? 6 A. I -- I KEPT NOTES ON MY CONVERSATIONS WITH EVERY INDIVIDUAL 7 WITH WHOM I HAD TO DO BUSINESS. 8 Q. AND THESE NOTES HAD TIME AND DATE STAMPS ON THEM? 9 A. YES, MA'AM. 10 Q. DID YOU KEEP NOTES OF CONVERSATIONS THAT YOU HAD WITH 11 COLLEAGUES REGARDING THE RIF AS WELL? 12 A. YES, MA'AM. 13 Q. AND DID ANY OF THOSE NOTES REFLECT CONVERSATIONS THEY HAD 14 WITH MR. SUTTER, MR. SCHULTZ OR MR. NAESER? 15 A. YES, MA'AM. I KEPT VERY CAREFUL NOTES AS WE -- AS WE 16 TALKED. 17 Q. OKAY. WHO IS CHARLES RICE? 18 A. CHARLES RICE IS A SENIOR SCIENTIST IN THE BRANCH OF EASTERN 19 REGIONAL GEOLOGY. HE IS A SPECIALIST IN THE GEOLOGY OF EASTERN 20 OHIO, OF KENTUCKY, AND PARTS OF WEST VIRGINIA. 21 MS. DAW: YOUR HONOR, NOBODY MENTIONED A MR. RICE IN 22 TESTIMONY. THIS IS NOT REBUTTAL. 23 THE COURT: YOU'D BETTER GET QUICKLY -- 24 MS. DRYOVAGE: OKAY. 25 THE COURT: -- TO WHAT YOU THINK IS NEW INFORMATION 1499 REYNOLDS - DIRECT / DRYOVAGE 1 AND REBUTTAL. 2 BY MS. DRYOVAGE: 3 Q. DID HE RETIRE PRIOR TO THE RIF? 4 THE COURT: THAT ISN'T IT. 5 MS. DRYOVAGE: OKAY. 6 THE COURT: ASK THE QUESTION TO CONVINCE US THAT YOU 7 HAVE SOME NEW REBUTTAL TESTIMONY; OTHERWISE, WE'LL GO ON TO 8 CROSS-EXAMINATION. 9 BY MS. DRYOVAGE: 10 Q. MR. SCHULTZ TESTIFIED THAT HE DID NOT STATE THAT HE MADE 11 COMMENTS TO THE EFFECT THAT EMPLOYEES WITH 30 OR MORE YEARS OF 12 SERVICE WOULD BE RIF'ED IF THEY DIDN'T RETIRE. 13 DID ANY OF YOUR COLLEAGUES REPORT TO YOU COMMENTS 14 LIKE THAT FROM MR. SCHULTZ? 15 A. YES, MA'AM. 16 MS. DAW: OBJECTION, HEARSAY. 17 THE COURT: WELL, THAT WOULD BE HEARSAY, COUNSEL. 18 MS. DRYOVAGE: IT'S A PRESENT-SENSE IMPRESSION. 19 THE COURT: NO, IT'S NOT. IT'S HEARSAY. 20 DO YOU HAVE ANYTHING THAT'S NOT HEARSAY THAT'S NEW 21 THAT'S REBUTTAL? 22 MS. DRYOVAGE: NO, I DO NOT. 23 THE COURT: ALL RIGHT. DO YOU HAVE ANY 24 CROSS-EXAMINATION? 25 MS. DAW: YES, YOUR HONOR. 1500 REYNOLDS - CROSS / DAW 1 CROSS-EXAMINATION 2 BY MS. DAW: 3 Q. DR. REYNOLDS, DID YOU KEEP COPIES OF THESE CARTOONS THAT YOU 4 SAW? 5 A. I DID NOT KEEP COPIES BECAUSE AT THE TIME WE -- 6 Q. I DIDN'T ASK YOU WHY, SIR. I JUST ASKED IF YOU KEPT COPIES. 7 DO YOU -- YOU INDICATED THAT YOU KEEP DETAILED NOTES 8 OF CONVERSATIONS. DID YOU ALSO KEEP NOTES REGARDING THE NATURE 9 OF CARTOONS THAT YOU SAW IN THE HALLWAY? 10 A. THE NATURE OF CARTOONS THAT WERE IN THE HALLWAY WERE 11 IMPRINTED VERY INDELIBLY ON MY MIND. 12 Q. THE QUESTION WAS WHETHER YOU KEPT NOTES ABOUT WHAT WAS ON 13 CARTOONS THAT YOU SAW IN THE HALLWAYS. 14 A. I DID NOT KEEP NOTES ON THE CARTOONS. 15 Q. THANK YOU. 16 A. BUT I DID KEEP -- 17 Q. THAT'S THE END OF THE QUESTION, SIR. 18 MS. DRYOVAGE: OBJECTION, ALLOW THE WITNESS TO -- 19 THE COURT: NO. THE WITNESS NEEDS TO ANSWER THE 20 QUESTIONS AND NOT VOLUNTEER OTHER INFORMATION. 21 BY MS. DAW: 22 Q. YOU MENTIONED THAT A CARTOON WAS CIRCULATED IN A CHRON 23 MEETING. WAS DAVE RUSS PRESENT AT THAT CHRON MEETING? 24 A. DAVID RUSS WAS PRESENT AT THAT MEETING. THE OTHERS PRESENT 25 WERE -- 1501 REYNOLDS - CROSS / DAW 1 Q. I DIDN'T ASK WHO ELSE WAS PRESENT, SIR. 2 AT THE TIME YOU SAW THESE CARTOONS UP, YOU WERE THE 3 OFFICE CHIEF? 4 A. I WAS THE CHIEF OF THE OFFICE OF REGIONAL GEOLOGY. 5 Q. AND YOU DID NOT REMOVE THE CARTOONS, DID YOU, IN YOUR ROLE 6 AS MANAGER? 7 A. I DID NOT REMOVE THE CARTOONS AS -- IN MY ROLE AS MANAGER. 8 Q. DID YOU REMOVE THE CARTOONS AT ALL? 9 A. PARDON? 10 Q. DID YOU REMOVE THE CARTOONS? 11 A. I DID NOT REMOVE THE CARTOONS OFF OF INDIVIDUAL SCIENTISTS 12 DOOR. THAT'S THEIR PRIVILEGE AND ABILITY TO -- TO KEEP THE 13 CARTOONS UP. ONE OF THE CARTOONS WAS CIRCULATED. 14 Q. THAT'S -- YOU KNOW, THERE'S NO QUESTION PENDING, SIR. THANK 15 YOU. 16 NO FURTHER QUESTIONS, YOUR HONOR. 17 THE COURT: WELL, WERE YOU AT THIS MEETING AT WHICH 18 THIS CARTOON WAS CIRCULATED? 19 THE WITNESS: YES, I WAS, AND I TESTIFIED TO THAT A 20 FEW MINUTES AGO. 21 THE COURT: AND WHAT WAS THE CARTOON? 22 THE WITNESS: THAT WAS ONE OF THE -- THAT WAS THE 23 BRONTOSAURUS OR ALLOSAURUS CARTOON WITH THE TARGET ON THE 24 BELLY. 25 THE COURT: AND IT WAS CIRCULATED IN WHAT SENSE? 1502 REYNOLDS - CROSS / DAW 1 PASSED FROM HAND TO HAND, OR WHAT? 2 THE WITNESS: IT WAS PASSED FROM HAND TO HAND IN THE 3 INFORMAL PART OF THE MEETING AT THE OUTSET, YES, MA'AM. 4 THE COURT: NOW, THESE CARTOONS WITH THE DINOSAUR 5 WITH THE TARGET ON IT, WAS THAT A HAND-DRAWN CARTOON? 6 THE WITNESS: THE BRONTOSAURUS ITSELF WAS TAKEN 7 FROM -- IT LOOKED LIKE EITHER A BOOK ON DINOSAURS OR A CHILD'S 8 BOOK. IT WAS XEROXED. AND THEN THE BULL'S-EYE WAS 9 SUPERIMPOSED ON IT. AND THEN THE TYPED SCRIPT UNDER THE 10 BOTTOM. 11 THE COURT: AND YOU SAW THAT IDENTICAL CARTOON 12 REPRODUCED MORE THAN ONCE? IN OTHER WORDS, SOMEONE WAS -- 13 THE WITNESS: YES, MA'AM. I SAW IT AS IT WAS 14 DISTRIBUTED IN THE CHRON GROUP, AND I SAW IT ON OFFICE WINDOWS. 15 THE COURT: SO IT WAS THE IDENTICAL CARTOON 16 PHOTOCOPIED? 17 THE WITNESS: IT SEEMED TO BE, YES. 18 THE COURT: AND WOULD THE SAME BE TRUE OF THE FATHER 19 TIME CARTOON? 20 THE WITNESS: NO, THE FATHER TIME CARTOON APPEARED 21 IN A COUPLE OF DIFFERENT FORMATS WITH DIFFERENT -- DIFFERENT 22 STATEMENTS ON IT. 23 THE COURT: AND WAS THAT A HAND-DRAWN CARTOON OR IS 24 THAT -- 25 THE WITNESS: NO, MA'AM. IT WAS A CARTOON, AGAIN, 1503 REYNOLDS - CROSS / DAW 1 THAT MIGHT HAVE COME FROM CLIP ART OR FROM A NEWSPAPER OR 2 SOMETHING LIKE THAT. HISTORICALLY, YOU SEE THESE AT THE END OF 3 THE YEAR ABOUT DECEMBER 31ST ON EDITORIAL PAGES. 4 THE COURT: NOW, YOU MENTIONED SEVERAL CARTOONS THAT 5 HAD THE WORD "MITCH" ON THEM. WAS THAT A REFERENCE TO 6 YOURSELF? 7 THE WITNESS: THAT WAS A REFERENCE TO ME, YES, 8 MA'AM. 9 THE COURT: COULD I HAVE YOUR BIRTH DATE, PLEASE. 10 THE WITNESS: YES, MA'AM. MY BIRTH DATE WAS 11 DECEMBER 6TH, 1937. 12 THE COURT: NOW, WOULD YOU CHARACTERIZE THESE 13 CARTOONS AS A PROTEST OF WHAT DR. EATON HAD SAID? 14 THE WITNESS: NO, I CITED THOSE ONLY AS EXAMPLES 15 OF -- OF THE -- WHAT I CALLED SOCIAL ART THAT WAS USED BY 16 PEOPLE IN THE GEOLOGIC DIVISION TO PROTEST THINGS. AND I TOOK 17 THEM TO BE A REFERENCE TO THE FACT THAT I HAD BROUGHT 18 MANAGEMENT COSTS UNDER CONTROL. I HAD PAID BACK A SIGNIFICANT 19 DEFICIT. 20 THE COURT: OH, NO, I'M SORRY. I -- I HAD CHANGED 21 THE SUBJECT, WITHOUT WARNING YOU, BACK TO THE DINOSAUR AND 22 FATHER TIME CARTOONS. 23 THE WITNESS: OH, OKAY. 24 THE COURT: WOULD YOU CHARACTERIZE THOSE AS PROTESTS 25 OF DR. EATON'S SPEECH? 1504 REYNOLDS - CROSS / DAW 1 THE WITNESS: I WOULD TAKE THE ONES -- PARTICULARLY 2 THE ONES THAT WERE ON THE FOURTH FLOOR AND PART OF THE C STACK 3 ON THE THIRD FLOOR AS -- AS BOTH CONCERN AND -- CONCERN FOR 14, 4 15, AND ALSO FOR -- FROM THE POSITION OF SOME FROM PERHAPS 5 YOUNGER SCIENTISTS WHO EXPECTED THAT THEY WOULD BE ADVANCED. I 6 THINK IT WAS A VERY COMPLEX MOTIVE FOR PUTTING -- PUTTING THEM 7 UP, OR IT VARIED. 8 THE COURT: WELL, ON WHOSE DOORS DID YOU SEE THESE 9 CARTOONS? 10 THE WITNESS: I SAW THEM ON A VARIETY OF SCIENTISTS' 11 DOORS. BUT I SAW -- MOST OF THEM IN EG&G AREA ON THE FOURTH 12 FLOOR WERE ON SENIOR SCIENTISTS' DOORS, AND IN THE THIRD FLOOR, 13 THEY WERE ON BOTH THE SENIOR -- SENIOR GEOLOGISTS' DOORS AND 14 ONE OR TWO ON YOUNGER PEOPLE'S DOORS. 15 THE COURT: WELL, WOULD YOU CHARACTERIZE THESE 16 CARTOONS AS ATTEMPTS TO HARASS OLDER WORKERS? 17 THE WITNESS: I WOULD CHARACTERIZE IT AS AN ATTEMPT 18 TO STATE SPECIFICALLY WHAT -- WHAT THE IMPLICATIONS OF 19 DR. EATON'S ADDRESS WERE AND THE IMPLICATIONS FOR -- FOR THE 20 GEOLOGIC DIVISION AND THE REDUCTION OF FORCE AND THAT. 21 THE COURT: WHAT I'M ASKING YOU IS, DID YOU -- WOULD 22 YOU CHARACTERIZE THESE CARTOONS AS ATTEMPTS TO HARASS OLDER 23 WORKERS? 24 THE WITNESS: IN PART, THEY CERTAINLY WERE. YES, 25 MA'AM. PARTICULARLY WHEN IT WAS THE FATHER TIME IMAGE, WAS 1505 REYNOLDS - CROSS / DAW 1 VERY VIVID. 2 THE COURT: WELL, SO YOU'RE SAYING THAT -- 3 MS. DAW: YOUR HONOR -- 4 THE COURT: -- SENIOR SCIENTISTS PUT THESE CARTOONS 5 ON THEIR DOORS TO HARASS OTHER SENIOR SCIENTISTS? 6 THE WITNESS: NO, MA'AM. THEY DID NOT PUT THE 7 FATHER TIME CARTOON ON THEIR DOOR. 8 THE COURT: WHO DID? 9 THE WITNESS: THIS WAS GENERALLY SOME OF THE YOUNGER 10 PEOPLE IN THE -- 11 THE COURT: ALL RIGHT. WELL, LET'S HAVE SOME NAMES. 12 TELL ME THE YOUNGER PEOPLE WHO PUT FATHER TIME CARTOONS ON 13 THEIR -- 14 THE WITNESS: I CAN TELL YOU THE APPROXIMATE OFFICE 15 NUMBER, BUT I CAN'T TELL YOU -- 16 THE COURT: WELL, THEN HOW DO YOU KNOW THAT IT WAS A 17 YOUNGER SCIENTIST IN IT? 18 THE WITNESS: I KNOW LARGELY FROM WHICH OFFICES THEY 19 OCCUPIED. AND I'M SORRY, I CAN'T -- 20 THE COURT: OKAY. WELL, GO AHEAD. 21 THE WITNESS: AT THIS TIME -- THIS WAS -- THIS WAS 22 MORE THAN EIGHT YEARS AGO. 23 THE COURT: WELL, YOU WERE A SUPERVISOR OF THESE 24 PEOPLE? 25 THE WITNESS: I WAS THE OFFICE CHIEF RESPONSIBLE FOR 1506 REYNOLDS - CROSS / DAW 1 THE OVERALL OPERATION OF THEIR BRANCH. I WAS NOT THEIR DIRECT 2 SUPERVISOR BUT THEIR SECOND-LEVEL SUPERVISOR. 3 THE COURT: WELL, IF YOU SAW CARTOONS HARASSING 4 PEOPLE ON DOORS, YOU'RE SAYING YOU WOULDN'T TAKE AN ACTION 5 ABOUT THAT? YOU WOULD ALLOW THAT TO CONTINUE? 6 THE WITNESS: I -- I VIEW THAT IN THE TIME, IF -- IF 7 I TOOK ACTION TO REMOVE ALL CARTOONS FROM DOORS, THAT WOULD BE 8 A VERY UNFORTUNATE THING AND DENIED PEOPLE THEIR ADVANTAGE OR 9 THEIR OPPORTUNITY TO EXPRESS THEMSELVES. I CAN TELL YOU VERY 10 SPECIFICALLY THAT I REQUIRED ON THREE DIFFERENT OCCASIONS -- I 11 REQUIRED THE BRANCH CHIEF TO ORDER THE SCIENTIST TO TAKE DOWN 12 PHOTOGRAPHS OF WOMEN THAT WERE NOT CLOTHED ADEQUATELY. I 13 ABSOLUTELY DID THAT. 14 THE COURT: AND IN THAT SAME SPIRIT, YOU DID NOT SEE 15 FIT TO ORDER PEOPLE TO HAVE TAKEN DOWN POSTERS THAT WERE 16 HARASSMENT, AS YOU VIEWED IT, OF OLDER WORKERS? 17 THE WITNESS: WELL, I COULD HAVE ORDERED THE ATTILA 18 THE HUN CARTOON TAKEN DOWN AT THE SAME TIME. 19 THE COURT: WELL, THAT WASN'T MY QUESTION. 20 THE WITNESS: MY -- AT THE TIME, I DID NOT ORDER 21 THESE TO BE TAKEN DOWN. 22 THE COURT: YET YOU VIEWED THEM AS HARASSMENT OF 23 OLDER WORKERS. 24 THE WITNESS: I DIDN'T VIEW IT AS HARASSMENT, BUT I 25 VIEWED IT AS A SOCIAL COMMENT ON WHAT THE EFFECTS OF -- OF WHAT 1507 REYNOLDS - CROSS / DAW 1 DR. EATON HAD SAID HE WAS GOING TO DO. I VIEWED IT AS THE 2 EFFECTS OF THAT AND NOT -- NOT AS, QUOTE, HARASSMENT, UNQUOTE. 3 THE COURT: ALL RIGHT. ANYTHING ELSE? 4 REDIRECT EXAMINATION 5 BY MS. DRYOVAGE: 6 Q. WHY DID YOU NOT KEEP COPIES OF THE CARTOONS? 7 A. AT THE TIME, WE -- AND I -- I AND -- WITH THE OFFICE CHIEFS 8 THAT WERE -- AMONG WHICH ONE OF THESE WAS PASSED, WE DID NOT 9 EXPECT THAT THIS -- THESE WOULD HAVE ANY VALUE, EVIDENTIARY 10 VALUE. AND SO WE DIDN'T -- WE DIDN'T KEEP THEM. 11 Q. WELL, HAD DR. EATON ASKED YOU TO STEP DOWN FROM YOUR 12 POSITION DURING THE PERIOD, APRIL THROUGH JUNE '94? 13 A. HE -- NO, NOT AT THAT TIME. BUT IT FOLLOWED IMMEDIATELY -- 14 HIS TALK FOLLOWED IMMEDIATELY DR. MORGAN'S MEMORANDUM THAT SAID 15 THAT. 16 MS. DAW: OBJECTION, YOUR HONOR. EXCEEDS THE SCOPE. 17 THE COURT: WELL, IT'S NOT RESPONSIVE. 18 BY MS. DRYOVAGE: 19 Q. SO THAT THE TIME PERIOD THAT THESE CARTOONS WERE UP WAS 20 PRIOR TO THE POINT IN TIME WHEN YOU WERE ASKED TO STEP OUT OF 21 YOUR JOB? 22 A. IMMEDIATELY PRIOR TO IT AND OVER -- IT OVERLAPPED THE EARLY 23 PART WHEN I WAS STILL -- ASKED TO STEP DOWN IN JULY, YES, MA'AM. 24 MS. DRYOVAGE: THANK YOU. 25 MS. DAW: NO FURTHER QUESTIONS, YOUR HONOR. 1508 REYNOLDS - REDIRECT / DRYOVAGE 1 THE COURT: ALL RIGHT. YOU'RE EXCUSED. YOU MAY 2 STEP DOWN. 3 ALL RIGHT. WHAT'S NEXT? 4 MS. DRYOVAGE: TOM THOMAS. 5 THE COURT: ALL RIGHT. 6 MS. DRYOVAGE: THERE'S ONE OTHER POINT. WE HAD -- 7 THE COURT: IS HE IN THE WITNESS ROOM? 8 MS. DRYOVAGE: HE'S RIGHT OUT IN THE HALLWAY. 9 THERE WAS A CHART THAT WE STIPULATED TO IN THE 10 PRETRIAL BRIEF THAT IT WOULD SEEM APPROPRIATE TO GET AN EXHIBIT 11 NUMBER ON IT AND INTRODUCE IT BECAUSE IT LISTS THE -- THE -- 12 THERE WAS A CHART THAT WE STIPULATED TO THAT 13 CONTAINS THE NAMES AND THE SERVICE COMPUTATION DATE AND 14 ADJUSTED SERVICE COMPUTATION DATE AND -- FOR, I BELIEVE, THE 15 DATE OF BIRTH FOR EACH OF THE PLAINTIFFS, AND I'VE MADE A COPY 16 OF THAT. PERHAPS NOW WOULD BE THE TIME TO INTRODUCE IT OR -- 17 MS. BURTON: THAT WAS NEVER STIPULATED TO. 18 MR. SALTIEL: WELL, NO, YOUR HONOR, I THINK WHAT 19 COUNSEL'S REFERRING TO IS PART OF THE STIPULATED FACTS IN THE 20 PRETRIAL STATEMENT. 21 MS. DAW: ISN'T IT ALREADY IN THE RECORD? 22 THE COURT: OKAY. IS THAT RIGHT? ARE THEY IN 23 THE -- 24 MS. DRYOVAGE: IT'S IN THE PRETRIAL STATEMENT. 25 MR. SALTIEL: THE JOINT PRETRIAL STATEMENT. 1509 REYNOLDS - REDIRECT / DRYOVAGE 1 THE COURT: AND THOSE ARE STIPULATED? 2 MS. DRYOVAGE: PARDON? 3 THE COURT: AND THOSE ARE STIPULATED? 4 MS. DRYOVAGE: YES, BOTH SIDES -- 5 THE COURT: WELL, I'LL ACCEPT THAT AS A STIPULATION, 6 THEN. 7 MS. DRYOVAGE: OKAY. THANK YOU. 8 CAN YOU TAKE THE WITNESS STAND. 9 THE CLERK: PLEASE STEP UP TO THE WITNESS STAND AND 10 BE SWORN. 11 (PAUSE IN THE PROCEEDINGS.) 12 THE CLERK: PLEASE RAISE YOUR RIGHT HAND. 13 THOMAS C. THOMAS, 14 CALLED AS A WITNESS FOR THE PLAINTIFFS, HAVING BEEN DULY SWORN, 15 TESTIFIED AS FOLLOWS: 16 THE CLERK: PLEASE BE SEATED AND STATE YOUR FULL 17 NAME SPELLING YOUR LAST NAME FOR THE RECORD. 18 THE WITNESS: MY NAME IS THOMAS CADWALLADER THOMAS. 19 THOMAS IS T-H-O-M-A-S. CADWALLADER, WHICH IS MY MIDDLE NAME, 20 IS C-A-D-W-A-L-L-A-D-E-R. 21 DIRECT EXAMINATION 22 BY MS. DRYOVAGE: 23 Q. GOOD MORNING, DR. THOMAS. 24 A. GOOD MORNING. 25 Q. NOW, YOU'VE BEEN CALLED TO TESTIFY AS THE PLAINTIFFS' 1510 THOMAS - DIRECT / DRYOVAGE 1 ECONOMIC DAMAGES EXPERT. I WOULD LIKE TO HAVE YOU RELATE TO THE 2 COURT YOUR QUALIFICATIONS AS AN EXPERT WITNESS. WHERE DID YOU 3 ATTEND UNIVERSITY AND WHAT DEGREES HAVE YOU RECEIVED? 4 THE COURT: ACTUALLY, HAVE YOU GOT A RESUME? 5 MS. DRYOVAGE: YES. IT HAS BEEN MARKED AS -- 6 THE COURT: DO YOU HAVE ANY OBJECTION TO HIM 7 QUALIFYING AS AN EXPERT? 8 MR. SALTIEL: WE DO NOT. 9 THE COURT: ALL RIGHT. HE'LL BE RECEIVED, AND I'LL 10 RECEIVE HIS RESUME FOR HIS QUALIFICATIONS. 11 YOU CAN GO AHEAD WITH HIS TESTIMONY. 12 MS. DRYOVAGE: ALL RIGHT. THAT IS A -- EXHIBIT 1 13 ATTACHED TO PLAINTIFFS' EXHIBIT NO. 315. AND -- 14 THE COURT: SO EXHIBIT 1 OF EXHIBIT 315 IS ADMITTED, 15 AND WE'LL CALL IT EXHIBIT 315? 16 MS. DRYOVAGE: RIGHT. THERE MAY BE OTHER PAGES THAT 17 COME IN OVER TIME. 18 BY MS. DRYOVAGE: 19 Q. JUST -- HOW MANY CASES HAVE YOU TESTIFIED AS AN EXPERT PRIOR 20 TO THIS ONE? 21 A. OVER A HUNDRED. 22 Q. AND DURING WHAT PERIOD OF TIME? 23 A. FIRST TIME I TESTIFIED IN A CASE WAS 19 -- 24 THE COURT: WELL, THE ONLY RELEVANCE OF THAT WOULD 25 BE FOR HIS QUALIFICATIONS AS AN EXPERT, AND I'VE ALREADY 1511 THOMAS - DIRECT / DRYOVAGE 1 RECEIVED HIM AS AN EXPERT. SO YOU CAN GO DIRECT TO THE 2 INFORMATION ABOUT THIS CASE. 3 BY MS. DRYOVAGE: 4 Q. OKAY. WHAT DATA DID YOU REVIEW IN PREPARATION OF YOUR 5 REPORT? 6 A. WELL, THE -- IT'S LISTED IN MY REPORT, BUT THE GENERAL KIND 7 OF DATA I REVIEWED WAS THE GOVERNMENT PAY SCHEDULES FOR '96 8 THROUGH 2003; THE GOVERNMENT PENSION FORMULAS; THE SOCIAL 9 SECURITY PENSION FORMULAS; AND THEN VARIOUS GENERAL THINGS THAT 10 ECONOMISTS USE, LIKE VLS WORK-LIFE STATISTICS AND LIFE 11 EXPECTANCY TABLES; AND THEN GOVERNMENT STATISTICS ON EARNINGS 12 AND INTEREST RATES TO CALCULATE A DISCOUNT RATE. THAT WAS THE 13 GENERAL INFORMATION. 14 FOR EACH INDIVIDUAL, I LOOKED AT THE EARNINGS, THEIR 15 GS LEVEL AT THE TIME OF TERMINATION; WHEN THEY OBTAINED THAT GS 16 LEVEL; THEIR EARNINGS SINCE TERMINATION; THE PENSION EARNINGS 17 SINCE TERMINATION; PLAN RETIREMENT DATE, IF ANY; AND THEN WITH 18 THEIR SCHOOLING; WHAT THEIR PUBLICATIONS WERE; WHAT THEIR 19 EMPLOYMENT OFFERS, IF ANY, WERE; AND WHAT THEY DID TO TRY TO 20 OBTAIN EMPLOYMENT. 21 Q. NOW, WERE THERE ANY OTHER DOCUMENTS OR INFORMATION OTHER 22 THAN WHAT YOU'VE DESCRIBED THAT YOU REVIEWED IN PREPARATION TO 23 TESTIFY TODAY? DID YOU REVIEW, FOR EXAMPLE, THE DEFENDANT'S 24 EXPERT'S REPORT? 25 A. OH, EXCUSE ME. YES, I LOOKED AT DR. UDINSKY'S REPORT, AND I 1512 THOMAS - DIRECT / DRYOVAGE 1 LOOKED AT THE DEPOSITION. 2 Q. WHAT I WANT TO HAVE YOU DO IS EXPLAIN WHAT YOU DID TO 3 ANALYZE THE DAMAGES OF EACH OF THE PLAINTIFFS. 4 A. OKAY. 5 Q. DO YOU WANT TO PUT THE CHART UP? 6 A. I HAVE A SERIES OF CHARTS WHICH ARE JUST DEMONSTRATIVE. I 7 THINK WILL MAKE THE EXPLANATION EASIER. 8 MOVE THIS OVER. 9 MS. DRYOVAGE: AND JUST WHILE HE'S GETTING THAT SET 10 UP, WE HAVE PROVIDED THE GOVERNMENT WITH COPIES OF THE 11 DEMONSTRATIVE CHARTS, AND -- VIA FAX AND MAIL. AND I HAVE 12 COPIES FOR THE COURT JUST IN CASE IT'S NEEDED. 13 THE WITNESS: OH, THANK YOU. 14 MR. SALTIEL: I GUESS YOU DON'T NEED THIS. 15 THE WITNESS: NO, I DON'T. THANK YOU. 16 OKAY. THE OVERALL FORMAT AND HOW THE NUMBERS ARE 17 PRESENTED IN THE -- IN MY REPORT ARE -- IS -- AT LEAST IN THE 18 SUMMARY TABLES, ARE FAIRLY STRAIGHTFORWARD. THERE'S THE PAST. 19 THE PAST IS -- IN THE ANALYSIS DIVIDED INTO TWO PARTS. THE 20 FIRST PART IS THE WAGE LOSS, AND THEN THE SECOND PART IS THE 21 PENSION LOSS. IN GENERAL, THE PENSION LOSS IN THE PAST WILL 22 OFFSET SOME OF THE WAGE LOSS BECAUSE HAVING BEEN TERMINATED, 23 THEY GET -- MANY OF THEM HAVE TAKEN PENSIONS EARLIER. THE SUM 24 OF THESE TWO IS WHAT IS CALLED PAST ECONOMIC LOSS IN MY REPORT. 25 THEN BASED UPON THIS ANALYSIS BY YEAR AND USING THE 1513 THOMAS - DIRECT / DRYOVAGE 1 GOVERNMENT TABLES, I CALCULATED PREJUDGMENT INTEREST. THEN GO 2 TO FUTURE LOSS PRESENT VALUE, IS THE SAME TYPE OF THING. 3 FUTURE LOSS OF WAGES EXCLUDING PENSION, FUTURE PENSION LOSS, A 4 TOTAL, AND THEN A TOTAL ECONOMIC LOSS. 5 SO THAT'S RATHER STRAIGHTFORWARD, AND, I WOULD 6 THINK, QUITE FAMILIAR. LET'S LOOK AT IT IN A LITTLE MORE 7 DETAIL. FIRST OF ALL, THE TABLES IN MY REPORT ARE JUST THROUGH 8 SEPTEMBER 1ST, 2002. THAT'S THE DATE I HAD WHEN I PROVIDED THE 9 REPORT. 10 THE PROJECTED PAST WAGES WITH USGS, USUALLY THAT IS 11 A PROJECTION. IN THIS PARTICULAR CASE, SINCE I HAVE THE GS 12 TABLES FOR THE BAY AREA, THIS IS NOT A PROJECTION. ONCE I KNOW 13 FOR EACH OF THESE PEOPLE WHAT THEIR GS LEVEL AND STEP LEVEL WAS 14 AT TIME OF TERMINATION, THEIR PROGRESSION OF WAGES INTO THE 15 FUTURE IS SET, AT LEAST UNTIL THEY HAVE TO HAVE A GRADE LEVEL 16 CHANGE. MOST OF THEM DID NOT. SO THAT, YOU KNOW, IF YOU'RE IN 17 THE FIRST FIVE STEPS, IT'S A YEAR PER STEP. AND THE NEXT FIVE 18 STEPS, THREE YEARS BETWEEN STEPS. THAT'S STANDARD EXCEPT FOR A 19 COUPLE OF EXCEPTIONS WE'LL HIT AS WE TALK ABOUT INDIVIDUALS. 20 AND THEN WE HAVE ACTUAL WAGES. ACTUAL WAGES ARE 21 RATHER UNIQUE IN THIS CIRCUMSTANCE IN THE SENSE THAT USUALLY IN 22 EMPLOYMENT TERMINATION CASE, I'LL HAVE ONE OR TWO YEARS' WORTH 23 OF ACTUAL WAGES IN THE PAST. IN THIS CASE, WE HAVE SIX GOING 24 ON SEVEN. WHAT THAT MEANS IS THAT ONE DOES NOT TO HAVE START 25 FROM WORRYING ABOUT WHETHER THESE PEOPLE ARE GOING TO MITIGATE 1514 THOMAS - DIRECT / DRYOVAGE 1 AND GUESSING WHETHER IT WILL BE OVER THREE YEARS OR FIVE YEARS. 2 YOU HAVE THE FACTS TO START FROM. SO YOU HAVE SIX, DASH, SEVEN 3 YEARS' WORTH OF ACTUALLY HAPPENED, OF DATA. 4 YOU NOT ONLY HAVE THAT ON A INDIVIDUAL, YOU HAVE 5 THAT ON 14 INDIVIDUALS, SO YOU CAN MAKE CROSS-COMPARISONS 6 BETWEEN THOSE, SEE IF IT'S REASONABLE. 7 AND THEN THIS DATA CAN BE COMPARED TO THE INDUSTRY 8 SITUATION BASED ON THE USGS AND THE LEVEL OF TERMINATIONS THAT 9 WERE OCCURRING THERE. IT CAN BE COMPARED TO WHAT THEY DID TO 10 TRY TO FIND JOBS. AND, AS I SAY, AGAINST THEIR FELLOW PEERS TO 11 SEE IF THESE ACTUAL WAGES RESULT IN WHAT LOOKS LIKE A 12 REASONABLE MITIGATION PATTERN GIVEN ALL THOSE FACTORS. 13 BY MS. DRYOVAGE: 14 Q. OKAY. JUST HOLD ON. YOU SAID THAT YOU WERE LOOKING AT THE 15 GOVERNMENT PAY CHARTS FOR SAN FRANCISCO LOCALITY, AND I'VE GOT 16 ON THE ELMO HERE PLAINTIFFS' EXHIBIT NO. 321, THE 1995 PAY 17 TABLES. THOSE ARE WHAT YOU USED TO CALCULATE WHAT THE PAST 18 WAGES WOULD HAVE BEEN IF THE PLAINTIFFS HAD REMAINED EMPLOYED? 19 A. YES. WHAT YOU HAVE ON THE ELMO RIGHT NOW, I -- I DON'T KNOW 20 WHAT YEAR IT'S FOR, BUT IT'S A -- WHAT HAPPENS IS IF YOU LOOK AT 21 THAT, THERE'S 2.13 PERCENT COST OF LIVING RAISE, AND THEN IF YOU 22 ARE ALSO AVAILABLE FOR A STEP INCREASE, THEN THE STEP INCREASES 23 ARE DETAILED DOWN THERE FOR THE DIFFERENT GS LEVELS. 24 MS. DRYOVAGE: OKAY. I WOULD LIKE TO MOVE INTO 25 ADMISSION EXHIBIT 321 FOR 1995 THROUGH 329, WHICH IS THE SALARY 1515 THOMAS - DIRECT / DRYOVAGE 1 TABLES FOR FEDERAL EMPLOYEES FOR 1995 THROUGH 2003. 2 THE COURT: OH, I DON'T THINK WE NEED THOSE. HOW 3 MUCH OF THIS IS IN DISPUTE? WHAT ARE THE AREAS OF DISPUTE 4 BETWEEN THE DAMAGES EXPERTS? 5 MS. DRYOVAGE: THEIR DAMAGES EXPERT SAID THAT MANY 6 OF THE PLAINTIFFS, 10 OUT OF 14, GAINED MONEY BY BEING RIF'ED 7 AND HAVE NO LOSS. AND SO BASICALLY THERE IS QUITE A FEW 8 DISPUTES ABOUT HOW YOU CALCULATE THE WAGES AND THE MITIGATION 9 EFFORTS AND THE PAST PENSION LOSSES. AND THAT'S WHY WE'RE 10 TAKING THE TIME TO LAY OUT THE FOUNDATION OF THIS. 11 THE COURT: IS THAT RIGHT? 12 MR. SALTIEL: I HAVE -- THAT'S A BROAD 13 GENERALIZATION OF WHAT OUR EXPERT'S GOING TO TESTIFY TO. 14 THE COURT: I JUST DON'T WANT TO HEAR A LOT OF 15 DETAIL ABOUT THINGS THAT AREN'T IN DISPUTE, LIKE HOW MUCH THE 16 SALARIES WERE FOR GS14 IN 1996. I DON'T IMAGINE WE'RE GOING 17 TO -- 18 MR. SALTIEL: I THINK IF WE HAD A LITTLE TESTIMONY, 19 ONE QUESTION PERHAPS, OF WHERE THESE TABLES CAME FROM, WE WILL 20 NOT OBJECT TO THEM. 21 THE COURT: I DON'T EVEN WANT THEM. 22 MR. SALTIEL: NO, OUR DISPUTE THAT THESE ARE THE 23 NUMBERS ARE CORRECT. 24 THE COURT: OKAY. 25 1516 THOMAS - DIRECT / DRYOVAGE 1 BY MS. DRYOVAGE: 2 Q. WHERE DID YOU GET THE PAY CHARTS? 3 A. I -- ONE OF THEM I GOT OFF THE INTERNET. THE OTHERS I GOT 4 FROM YOU, BUT THEY'RE ALL LABELED AS GOVERNMENT DOCUMENTS. 5 MS. DRYOVAGE: I, AGAIN, MOVE TO HAVE THESE EXHIBIT 6 NO. 321 THROUGH -- 7 THE COURT: NO, I DON'T NEED THAT. 8 MS. DRYOVAGE: YOU DON'T NEED THAT. 9 THE COURT: NO. NOT UNLESS IT'S DISPUTED. 10 THE WITNESS: AND THEN THE ACTUAL PAST WAGES CAME 11 OFF THEIR INCOME TAX RETURNS, SOMETIMES SUPPLEMENTED BY W2S OR 12 OTHER DOCUMENTS. BUT THIS IS THE ACTUAL PAST WAGES FOR SIX TO 13 SEVEN YEARS FROM THEIR INCOME TAX RETURNS, '95 THROUGH 2001, 14 SOMETIMES 2002, BUT GENERALLY NOT 2002. 15 BY MS. DRYOVAGE: 16 Q. AND FOR THE PAST PENSION LOSS, HOW DID YOU COMPUTE THAT, AND 17 WHAT DID YOU BASE YOUR OPINION ON? 18 A. WELL, AGAIN, THERE'S A VERY STRAIGHTFORWARD GOVERNMENT 19 FORMULA FOR HOW YOU CAN COMPUTE A PENSION BASED UPON NUMBER OF 20 YEARS OF SERVICE, YOUR HIGHEST THREE YEARS OF GS LEVEL, AND 21 THAT -- THAT DOES IT WITH -- WITH THE FACT THAT FOR TWO OF THE 22 PLAINTIFFS, YOU ARE CAPPED AT 80 PERCENT OF YOUR SALARY. SO 23 YOUR PENSION CANNOT GO OVER 80 PERCENT OF THE HIGHEST THREE 24 YEARS. WITH THAT, THEN, YOU JUST PROJECT THE PENSION IN THE 25 PAST OF WHAT IT WOULD BE. 1517 THOMAS - DIRECT / DRYOVAGE 1 FOR MOST OF THE PEOPLE, THIS IS NOT A PROJECTED 2 PENSION BECAUSE THEY'RE EXPECTED TO KEEP ON WORKING IN THE PAST. 3 PROJECTED PENSION WOULD BE MORE IMPORTANT IN THE FUTURE. BUT WE 4 ALSO -- BUT MANY OF THE PEOPLE HAVE ACTUALLY STARTED TO TAKE A 5 PENSION. WHAT THE LEVEL OF THEIR ACTUAL PENSION WAS IS RECORDED 6 IN THEIR INCOME TAX FORMS OR -- IN SOME CASES, I DON'T KNOW THE 7 FORM NUMBER, BUT BASICALLY A FORM FROM THE GOVERNMENT SAYING HOW 8 MUCH PENSION THEY WERE PAID. 9 Q. OKAY. 10 A. SO FOR THE PAST, I TAKE WHAT THE PROJECTION PENSION WAS -- 11 OFTEN THAT'S ZERO -- AND I SUBTRACT FROM THAT THE ACTUAL PENSION 12 SO THERE'S AN OFFSET. THE PAST PENSION LOSS IS USUALLY A 13 NEGATIVE PENSION LOSS WHICH ADDS TO THE OFFSET AGAINST WAGES. 14 NOT ALWAYS, BUT MOST OF TIME. 15 Q. SO IN COMPUTING THE DAMAGES, YOU TOOK OUT ANY WAGES THAT 16 THEY HAVE EARNED OVER THE PAST SEVEN YEARS AS WELL AS ANY 17 PENSION THAT THEY HAD RECEIVED FROM THE GOVERNMENT OVER THE LAST 18 SEVEN YEARS? 19 A. CORRECT. AFTER I -- YOU KNOW, ALL OF THAT IS -- IS 20 DEPENDENT UPON LOOKING AT WHAT THEIR ACTUAL WAGES WERE AND WHAT 21 THEIR ACTUAL ATTEMPT TO FIND EMPLOYMENT WAS, AND JUDGING THAT TO 22 HAVE BEEN A VALID ATTEMPT TO MITIGATE THEIR LOSSES. 23 Q. NOW, THE PREJUDGMENT INTEREST. HOW DID YOU CALCULATE THAT? 24 A. WELL, THAT'S PREJUDGMENT, AND THE INTEREST RATE TO BE USED 25 IS SET OUT IN GOVERNMENT TABLES AGAIN. SO YOU -- YOU GET 1518 THOMAS - DIRECT / DRYOVAGE 1 GOVERNMENT TABLES THAT TELL YOU WHAT INTEREST RATE TO USE BY 2 QUARTER, AND WHAT I HAD TO DO IS I HAD TO AVERAGE IT BY YEAR. 3 AND I APPLIED THAT YEARLY AVERAGE TO WHATEVER LOSS WAS '96 4 THROUGH THE PRESENT, AND THEN I SUMMED IT UP. AND THAT IS WHAT 5 GIVES YOU PREJUDGMENT INTEREST. 6 Q. OKAY. 7 A. NOW -- 8 Q. DID YOU ALSO CALCULATE THE FUTURE WAGE LOSS? 9 A. YES. 10 Q. AND HOW DID DO YOU THAT? 11 A. NOW, THE FUTURE WAGE LOSS -- PROJECT FUTURE WAGES. OKAY. 12 AS I SAID EARLIER, THE FUTURE WAGES HAVE -- OR WAGES 13 IN GENERAL WITH USGS HAVE TWO COMPONENTS. ONE IS A COST OF 14 LIVING INCREASE, AND THE OTHER IS A STEP INCREASE. THE COST OF 15 LIVING INCREASE IS DEPENDENT UPON INFLATION, THE COST OF LIVING. 16 GENERALLY ECONOMISTS HANDLE THAT BY OFFSETTING THOSE 17 INCREASES AGAINST THE DISCOUNT RATE, USING WHAT'S CALLED A NET 18 DISCOUNT RATE. SO I USE A NET DISCOUNT RATE, AND I KEPT FUTURE 19 EARNINGS CONSTANT IN 2002 DOLLARS, EXCEPT FOR THE STEP 20 INCREASES. 21 SO IN CASES WHERE THERE -- AFTER ONE YEAR OR AFTER 22 THREE YEARS, THERE'S ANOTHER STEP INCREASE, LIKE STEP FIVE TO 23 STEP SIX, THEN THAT IS IN THE FUTURE. BUT OTHER THAN THAT, I 24 HAVE KEPT THE WAGES CONSTANT AS FAR AS COST OF LIVING IS 25 CONCERNED. 1519 THOMAS - DIRECT / DRYOVAGE 1 Q. AND THAT IS SO THAT YOU HAVE A PRESENT VALUE? 2 A. RIGHT. THAT -- I WILL WIND UP WITH A PRESENT VALUE -- I 3 HAVE TO DO THAT -- WELL, FROM THAT, I SUBTRACT ACTUAL WAGES 4 WHICH, AGAIN, IS A PROJECTION. BUT KNOWING WHAT THEIR SEVEN 5 YEARS OF WAGES ARE, I HAVE SOME BASIS, AT LEAST, FOR TALKING 6 ABOUT WHAT THEIR WAGES WILL BE IN THE FUTURE AFTER SEVEN YEARS. 7 I SUBTRACT THOSE TWO. I GET A LOSS BY YEAR. AND 8 THEN THAT HAS TO BE PRESENT VALUED. AND THAT IS PRESENT VALUED 9 USING A NET DISCOUNT RATE. 10 AND THAT NET DISCOUNT RATE IS 2.5 PERCENT BASED UPON 11 A CALCULATION OF THE DIFFERENCE BETWEEN THE COMPENSATION 12 INCREASE TO HAVE AVERAGE AMERICAN WORKER AND INTEREST RATE ON 13 THREE-YEAR TREASURY BILLS. I DO THE SAME KIND OF ANALYSIS WITH 14 PENSIONS. I LOOK AT WHAT THE PENSION WOULD HAVE, WHATEVER THEY 15 ARE PROJECTED TO HAVE RETIRED, IF THEY HAD STAYED AT USGS, AND 16 THEN I LOOK AT THEIR PENSION HAVING NOT STAYED AT USGS, IN OTHER 17 WORDS, WHAT THEIR USGS PENSION IS PLUS ANY SOCIAL SECURITY 18 PENSION THEY WOULD HAVE GOTTEN PLUS ANY PENSION THEY WOULD HAVE 19 GOTTEN ON THE JOB, IF THEY TAKE A JOB SOMEPLACE ELSE. 20 IN TWO CASES, I HAVE COME UP WITH INFORMATION ON 21 RETIREMENT BENEFITS AND JOBS WHICH I DIDN'T PREVIOUSLY HAVE, AND 22 I WILL SHOW THAT AS AN ADJUSTMENT AS WE GO THROUGH. BUT 23 BASICALLY IT'S LOOKING AT WHAT THE PENSION WOULD HAVE BEEN AND 24 WHAT IT WILL BE. THE -- IMPORTANT IN BOTH OF THESE IS THE 25 LENGTH OF THE FUTURE. LIFE EXPECTANCY IS STANDARD. HOW LONG 1520 THOMAS - DIRECT / DRYOVAGE 1 THEY WILL BE EMPLOYED. 2 THE STANDARD WAY TO DO IS IT TO USE BUREAU OF LABOR 3 STATISTIC WORK-LIFE TABLES. I HAVE USED THAT IN OTHER -- ALL 4 CASES EXCEPT WHEN THE PLAINTIFF HAS HAD A VERY DEFINITE OPINION 5 ABOUT WHEN THEY WOULD RETIRE, AND I THINK THAT WAS ONLY IN THREE 6 CASES. TWO OF THEM SHORTENED THE WORK LIFE TO LESS THAN BLS 7 WOULD HAVE SAID, AND ONE LENGTHENED IT. SO ON BALANCE, THERE'S 8 NO -- NO ADVANTAGE OR DISADVANTAGE TO USING, FOR THOSE THREE 9 CASES, THE -- WHAT THE PLAINTIFF SAID. 10 BUT, YOU KNOW, WHEN THE PLAINTIFF HAS A VERY DEFINITE 11 OPINION WHEN THEY'RE GOING TO RETIRE, THAT'S WHAT NEEDS TO BE 12 USED, BECAUSE ALL THE BLS DATA IS IS AN AVERAGE FOR ALL 13 AMERICANS. AND AVERAGES ARE ALWAYS WRONG. THERE'S VERY FEW 14 PEOPLE WHO ARE ACTUALLY AT THE AVERAGE. THEY'RE EITHER ABOVE 15 THE AVERAGE OR BELOW THE AVERAGE. WE ONLY USE AVERAGE DATA WHEN 16 THERE IS NOTHING ELSE TO USE BECAUSE WE KNOW IT'S WRONG. SO 17 WHEN THERE'S REAL DATA, WE ALWAYS USE THE REAL DATA, LIKE THE 18 ACTUAL WAGE DATA. 19 Q. NOW, YOU SAID THAT YOU CALCULATED THE MITIGATION EFFORTS, 20 AND YOU FACTORED THOSE INTO YOUR ANALYSIS. CAN YOU EXPLAIN THE 21 METHODOLOGY THAT YOU USED THERE. 22 A. WELL, THE -- AFTER EVALUATING THE ACTUAL WAGE EARNINGS OF 23 THE INDIVIDUAL, ONE COMES TO THE CONCLUSION, WHICH I DID MORE OR 24 LESS IN ALL THE CASES, MORE IN SOME CASES THAN IN OTHERS, THAT 25 THE -- THOSE EARNINGS WERE WHAT COULD BE HAVE (SIC) EXPECTED 1521 THOMAS - DIRECT / DRYOVAGE 1 FROM REASONABLE MITIGATION EFFORTS, AND THE MITIGATION EFFORTS 2 WERE DETAILED BY EACH OF THE PLAINTIFFS. 3 ONCE YOU BELIEVE THAT WHAT THEY DID WAS AN 4 APPROPRIATE MITIGATION EFFORT, THEN YOU JUST USE THE ACTUAL 5 NUMBERS FOR THE PAST. AND BASED UPON SEVEN YEARS' WORTH OF 6 DATA, YOU HAVE A VERY GOOD BASIS FOR TRYING TO SAY -- LET'S SAY 7 THEY HAVE THREE MORE YEARS OF WORK LIFE AFTER 2002, YOU HAVE A 8 GOOD BASIS FOR SAYING WHAT THEY WILL PROBABLY BE ABLE TO EARN IN 9 THE NEXT COUPLE OF YEARS OR -- 10 AGAIN, THERE ARE A COUPLE OF EXCEPTIONS WHEN WE GO 11 THROUGH EACH INDIVIDUAL PLAINTIFF, WHICH I WILL POINT OUT, BUT 12 IN GENERAL, THAT'S THE METHODOLOGY. 13 Q. OKAY. WERE THERE ANY SPECIFIC FACTS OF THIS CASE, THE FACT 14 THAT IT INVOLVED GEOLOGISTS AND GEOPHYSICISTS OR NORTHERN 15 CALIFORNIA VERSUS SOME OTHER PART OF THE COUNTRY THAT TOOK -- 16 THAT PLAYED A ROLE IN YOUR ANALYSIS? 17 A. OH, VERY DEFINITELY. I MEAN, WHEN YOU DON'T HAVE ANY 18 INFORMATION, THE STANDARD IS TO FIND A JOB THAT TAKES TWO MONTHS 19 PER TEN THOUSAND DOLLARS OF INCOME. THAT'S THE STANDARD 20 HEADHUNTER FORMULA, AND GENERALLY IF YOU HAVE A PERSON WHO IS 21 BELOW THEIR PREVIOUS WAGE, YOU USE THREE TO FIVE YEARS FOR 22 MITIGATION. BUT THAT'S GENERALLY WHEN YOU HAVE NO DATA. 23 I GOT SEVEN YEARS' WORTH OF DATA. AND I ALSO HAVE AN 24 INDUSTRY IN WHICH WAS FLOODED THROUGH VOLUNTARY LAYOFFS -- NOT 25 LAYOFFS -- VOLUNTARY WITHDRAWALS, BUYOUTS BEFORE THE RIF, AND 1522 THOMAS - DIRECT / DRYOVAGE 1 THEN A HUNDRED ADDITIONAL GEOLOGISTS, SEISMOLOGISTS, ET CETERA, 2 AFTER THE RIF. SO YOU HAVE AN INDUSTRY WHICH IS OVERLOADED IN 3 THE SAME WAY THAT YOU WOULD NOT TREAT THE ABILITY OF AN 4 ELECTRICAL ENGINEER IN SILICON VALLEY IN 1988 (SIC) TO GET A 5 JOB, IN THE SAME WAY YOU WOULD TREAT THAT SAME ELECTRICAL 6 ENGINEER IN 2001 OR 2002 TO GET A JOB 'CAUSE THE INDUSTRY IS 7 COMPLETELY DIFFERENT IN SILICON VALLEY NOW THAN IT WAS BACK IN 8 '98 (SIC). 9 YOU WOULD -- YOU WOULD NOT TREAT THE PEOPLE WHO ARE 10 FACING, FIRST, AN INITIAL WAVE OF PEOPLE WHO WENT OUT TO GET THE 11 JOBS THAT WERE AVAILABLE. THEY CAME LATER, AND THEN THERE WAS A 12 HUNDRED OF THEM WHEN THERE'S A RELATIVELY SMALL JOB MARKET. AS 13 YOU LOOK AT THESE PEOPLE, YOU FIND VERY FEW THAT HAVE 14 TRANSFERRED -- ONLY ONE, AND HE IS EARNING ONE QUARTER OF WHAT 15 HE EARNED WITH USGS -- WHO'S BEEN ABLE TO TRANSFER TO PRIVATE 16 INDUSTRY. 17 WE'RE TALKING ABOUT PEOPLE WHOSE CONTACTS, WHOSE 18 NETWORKS, WHOSE ABILITY TO FIND JOBS SEEM TO BE, IF NOT 19 RESTRICTED, EFFECTIVELY, MOSTLY IN THE PUBLIC SECTOR, SOMETIMES 20 UNIVERSITIES, SOMETIMES NON-PROFIT INSTITUTES, BUT BASICALLY IN 21 THE PUBLIC SECTOR, NOT IN THE PRIVATE SECTOR. AND THAT'S -- YOU 22 KNOW, THAT IS VERY REASONABLE. 23 YOU TAKE A MAN WHO HAS 30, 40 YEARS' EXPERIENCE IN 24 LOOKING AT ANTARCTICA, HAS PUBLISHED BOOKS, AND IS 25 INTERNATIONALLY RENOWNED IN ANTARCTICA, THAT'S WONDERFUL. BUT 1523 THOMAS - DIRECT / DRYOVAGE 1 THERE AREN'T MANY MINERALS, THERE'S NOT MUCH OIL THAT I KNOW OF 2 IN ANTARCTICA. 3 CHEVRON'S NOT GOING TO HIRE THEM; KAISER ALUMINUM'S 4 NOT GOING TO HIRE HIM -- 5 THE COURT: I'M SORRY. IS THIS AN ECONOMIST EXPERT, 6 OR A VOCATIONAL REHAB EXPERT? 7 MS. DRYOVAGE: ECONOMIC EXPERT. 8 THE COURT: I THINK MAYBE WE SHOULDN'T START 9 STRAYING INTO VOCATIONAL REHAB, THEN. 10 MS. DRYOVAGE: OKAY. 11 THE WITNESS: OKAY. 12 BY MS. DRYOVAGE: 13 Q. LET'S GO TO THE CALCULATION THAT YOU DID FOR EACH 14 INDIVIDUAL. DID YOU WANT THE SUMMARY CHARTS OR THE -- 15 A. YEAH. LET ME JUST -- LET ME PUT UP A SUMMARY CHART, AND 16 THEN AFTER THAT, I WILL WORK OFF THE ELMO SYSTEM. 17 I HAVE 14 PLAINTIFFS. I CALCULATE -- WHAT WE HAVE 18 SUMMARIZED HERE IS A PAST ECONOMIC LOSS, PREJUDGMENT INTEREST, 19 THE FUTURE ECONOMIC LOSS, AND THE TOTAL ECONOMIC LOSS. 20 I DON'T KNOW WHETHER I NEED TO READ IN THESE NUMBERS. 21 THE COURT: PLEASE DON'T. 22 THE WITNESS: PARDON? 23 THE COURT: PLEASE DON'T. 24 THE WITNESS: OKAY. 25 MS. DRYOVAGE: COULD WE OFFER THIS AS AN EXHIBIT? 1524 THOMAS - DIRECT / DRYOVAGE 1 WE HAVE A SMALLER VERSION. 2 THE COURT: YES. 3 MS. DRYOVAGE: THIS IS ALL FOUR POSTER BOARDS, 4 INCLUDING THE ONE THAT'S UP NOW, CHART OF LOSSES BY INDIVIDUAL. 5 THE WITNESS: OKAY. THERE ARE ON THIS CHART -- 6 THE CLERK: I'M SORRY. THIS -- 7 MS. DRYOVAGE: WAIT, WAIT. 8 THE CLERK: IS THIS PLAINTIFFS' NEXT IN ORDER. 9 MS. DRYOVAGE: PLAINTIFFS' NEXT IN ORDER. 10 THE CLERK: OKAY. THAT WOULD BE PLAINTIFFS' 792. 11 (PLAINTIFFS' EXHIBIT 792 12 MARKED FOR IDENTIFICATION) 13 THE WITNESS: ON THIS CHART, THERE ARE A COUPLE 14 POTENTIAL REVISIONS BASED UPON RETIREMENT PROGRAMS WHICH I WAS 15 UNAWARE OF. MAINLY IT'S ALICE DAVIS AND MR. LEWIS, WHO HAVE 16 SOME RETIREMENT FROM THEIR MITIGATION JOBS. AND I SEE -- WHEN 17 I GET TO THEM, I WILL BE REDUCING THESE NUMBERS FOR THOSE TWO. 18 THERE'S ALSO A VERY, VERY SMALL RETIREMENT FOR MR. ADAM. I PUT 19 IT IN, BUT, YOU KNOW, IT'S A COUPLE THOUSAND DOLLARS, HARDLY 20 WORTHWHILE TALKING ABOUT. 21 IN ADDITION, THIS CHART OF LOSSES BY INDIVIDUALS IS 22 ONLY GOOD TO 9/2000 (SIC). AND IF YOU DESIRE, I HAVE THE 23 ABILITY TO UPDATE THIS TO 7/15/2003 BASED UPON JUST TWO 24 FACTORS: ONE, THE PAY INCREASE FOR 2003 IN THE GS SCHEDULES; 25 TWO, THE -- AND TWO, THE CHANGE IN TIME, WHICH MEANS THERE'S 1525 THOMAS - DIRECT / DRYOVAGE 1 LESS DISCOUNTING. THERE'S ANOTHER 10.5 MONTHS, SO THERE'S 10.5 2 MONTHS LESS OF DISCOUNTING AND 10.5 MONTHS MORE OF PREJUDGMENT 3 INTEREST. SO I COULD PUT THOSE ADDITIONS OVER HERE ON THE 4 RIGHT. 5 BUT WITH THAT, THIS IS THE -- THIS IS THE PICTURE -- 6 OVERALL PICTURE FOR THE 14 PLAINTIFFS. 7 BY MS. DRYOVAGE: 8 Q. OKAY. I'M PUTTING ON THE ELMO PLAINTIFFS' EXHIBIT NO. 332, 9 THE ECONOMIC LOSS REFERRING TO DAVID ADAM. 10 A. OH. I'M SORRY. COULD I -- IF I -- I DON'T KNOW IF IT'S 11 PROPER -- IF I COULD SUGGEST, I REALLY WANTED TO BREAK UP HOW I 12 PRESENTED THESE PEOPLE IN THE FOUR CATEGORIES. 13 MS. DRYOVAGE: OKAY. 14 Q. WELL, LET'S ASK ABOUT THE -- THE CATEGORY OF PEOPLE WHO GOT 15 REHIRED BY THE USGS? 16 A. OKAY. YEAH, I'LL USE A 1 FOR THEM. TWO PEOPLE GOT REHIRED 17 BY USGS. ONE WAS CALZIA -- 18 Q. CALZIA? 19 A. -- AND THE SECOND WAS LINDH. OKAY? 20 THE -- SO THOSE PEOPLE ARE -- AND I WANT TO BREAK OUT 21 JUST BECAUSE THE ANALYSES ARE VERY SIMILAR FOR PEOPLE IN THE 22 SAME CATEGORY. 23 THE SECOND CATEGORY -- LET ME SEE IF I CAN USE THIS. 24 THE SECOND CATEGORY IS PEOPLE WHO FOUND A JOB OUTSIDE OF USGS, 25 AND THEY ARE -- I'LL USE A 2 FOR THAT GROUP. THAT'S MR. ADAM, 1526 THOMAS - DIRECT / DRYOVAGE 1 MISS -- MS. DAVIS, MR. DRINKWATER, MR. IYER -- I'M SORRY -- 2 MR. KING, AND FINALLY, MR. LEWIS. 3 THE THIRD CATEGORY, WHICH COMPRISES EVERYONE EXCEPT 4 ONE, ARE THE PEOPLE WHO DID NOT GET HIRED BY ANYONE BUT WENT AND 5 WORKED WITH USGS ON AN EMERITUS OR VOLUNTEER STATUS. AND I'LL 6 LABEL THAT 3, AND THAT'S MR. ADAMI, MR. CSEJTEY, MR. FORD, 7 MR. GRANTZ, MR. WRUCKE. AND IT IS MY UNDERSTANDING THAT 8 PROBABLY -- DENNIS MANN IS NO LONGER IN THIS, AND I'LL JUST PUT 9 A LINE THROUGH HIM. HE'S NO LONGER PART OF THE CASE. 10 AND THEN, FINALLY, THERE IS A SPECIAL CATEGORY FOR 11 JUST MR. OVERSHINE. WHY THAT IS SPECIAL CATEGORY, HE IS REALLY 12 A LOT LIKE THE PEOPLE IN CATEGORY 3, BUT, IN ADDITION, HE HAD A 13 WRITTEN AGREEMENT WITH USGS PERTAINING TO HIS -- HOW LONG HE 14 WOULD BE PAID AT ONE LEVEL, WHEN HE WOULD START BEING PAID AT 15 ANOTHER LEVEL. AND THAT MAY BE MORE OF A CONTRACT DISPUTE THAN 16 A TERMINATION DISPUTE. SO I JUST SEPARATED HIM OUT INTO A 17 FOURTH CATEGORY. 18 AND THAT -- I'D LIKE TO TAKE ALPHABETICALLY WITHIN 19 GROUP, I'D LIKE TO TAKE THOSE FOUR GROUPS. 20 Q. OKAY. HOW DID YOU COMPUTE THE DAMAGES FOR JAMES CALZIA? 21 AND I WILL PUT ON THE ELMO PLAINTIFF'S EXHIBIT NO. 335. 22 A. OKAY. LET'S SEE. EXCUSE ME. IF I CAN MOVE THIS AROUND. 23 I'M SORRY. IS THERE A BRIGHTNESS BUTTON ON THIS? I'M NOT ABLE 24 TO READ THIS PARTICULARLY. 25 OH, PARDON ME. I GUESS I'M ALL RIGHT NOW. THANK 1527 THOMAS - DIRECT / DRYOVAGE 1 YOU. 2 WELL, UNDER "EARNINGS WITHOUT TERMINATION," I'VE 3 ALREADY EXPLAINED IT. THOSE ARE NUMBERS RIGHT OFF THE GS 4 SCHEDULES WITH THE APPROPRIATE STEP INCREASES DEPENDING UPON 5 WHEN HE HAD REACHED HIS ORIGINAL STEP. HE IS A LEVEL 12 OR WAS 6 AT TIME OF TERMINATION A LEVEL 12, A 12, STEP 9. HE WAS -- 7 EARNINGS WITH TERMINATION. HE WAS REHIRED AS A GS11 AND 8 EVENTUALLY PUT TO A STEP 12, BUT -- 9 AND, THEREFORE, WHAT YOU SEE HERE AS HIS LOSS 10 EARNINGS IS REALLY THE FACT OF HIS COMING BACK AT A BEGINNING 11 STEP 12 AS A PERMANENT, WHEN HE WAS A STEP 9 BEFORE THE 12 TERMINATION. SO THAT, IN ESSENCE, HE LOST 9 STEPS, MAYBE 10 13 STEPS DEPENDING UPON THE TIMING OF PAY INCREASES. THERE WAS NO 14 QUESTION IN MY MIND AS I REVIEWED THESE FIGURES ABOUT 15 MITIGATION. THIS, OBVIOUSLY, WAS A VERY STRAIGHTFORWARD WAY TO 16 DO IT. 17 Q. WHAT DID -- 18 A. I CAN. 19 Q. WHAT DID DR. CALZIA DO TO MITIGATE? 20 A. MR. CALZIA? 21 Q. YES. 22 A. WELL, HE GOT REHIRED BY USGS. THAT'S WHAT HE DID TO 23 MITIGATE. THE USGS SAW FIT NOT TO REHIRE HIM TO WHERE HE WAS 24 BUT TO REHIRE HIM AT A SLIGHTLY LOWER RATE. THAT'S NOT HIS -- 25 THAT WAS NOT HIS DECISION, AND I SEE NO REASON TO NOT BELIEVE 1528 THOMAS - DIRECT / DRYOVAGE 1 THAT THAT -- MR. CALZIA DID THAT IN -- AS THE BEST HE COULD DO 2 FOR HIMSELF. 3 THE COURT: WELL, AGAIN, THIS EXPERT IS NOT 4 TESTIFYING AS TO THE APPROPRIATENESS OF THE MITIGATION THAT'S 5 FOR THE COURT TO DECIDE. 6 MS. DRYOVAGE: OKAY. 7 THE COURT: THIS EXPERT IS TO -- ONLY TO TESTIFY AS 8 TO CALCULATIONS OF NUMBERS, ASSUMING THAT THE MITIGATION -- 9 WELL, ASSUMING THIS IS HOW HE MITIGATED, THIS IS HOW THE 10 NUMBERS TURN OUT. IT'S NOT FOR THIS EXPERT TO SAY WHETHER THAT 11 MITIGATION WAS APPROPRIATE OR NOT APPROPRIATE. 12 MS. DRYOVAGE: I UNDERSTAND. 13 THE WITNESS: OKAY. 14 BY MS. DRYOVAGE: 15 Q. CAN YOU EXPLAIN YOUR ANALYSIS HERE -- 16 A. WELL -- 17 Q. -- ON HIS WAGE LOSS? 18 A. WELL, YOU JUST LOOK AT, YOU KNOW -- THE PAST IS -- YOU LOOK 19 AT THE DIFFERENCE, YOU ADD THEM UP, THERE'S NO PRESENT VALUE. 20 YOU GO IN THE FUTURE. IN THE FUTURE, EARNINGS WITH 21 TERMINATION, THERE IS AN INCREASE, BUT THOSE ARE ONLY STEP 22 INCREASES. AND THEN EARNINGS WITH TERMINATION ARE THE EARNINGS 23 THAT HE HAD, AGAIN, AT -- PROJECTED AT USGS FOR CERTAIN LOSS. 24 GIVEN HIS AGE, THERE IS NO PAST PENSION LOSS; NAMELY, HE DID NOT 25 RECEIVE ANY PENSION THROUGH 2000 -- THROUGH AUGUST OF 2002. AND 1529 THOMAS - DIRECT / DRYOVAGE 1 IN THE FUTURE, HE HAS A PENSION LOSS OF 54,808 BASED UPON THE 2 FACT OF HIS 6.3 MONTHS OF -- OF NON-SERVICE AND THE -- AND THAT 3 HIS HIGHEST THREE YEARS WILL BE SLIGHTLY LESS SO THAT IS SHOWN 4 ON SHEET NUMBER 2, THE PENSION CALCULATIONS. 5 AND THE ONLY THING THAT'S -- YEAH, ON THERE -- IF I 6 CAN READ THAT, IT SAYS 6 -- 5 LINES DOWN, 6.3 YEARS ORIGINALLY. 7 THAT'S REALLY MONTHS. THAT WAS A STANDARD FORM, AND IT'S A -- 8 SO ALL HE LOST WAS LESS THAN A HALF YEAR. ALL THE REST OF IT IS 9 BASED UPON THE FACT THAT HIS HIGHEST THREE WILL BE LOWER WITH 10 HIS TERMINATION COMING BACK AS A -- FIRST, AN 11 AND THEN A BASE 11 STEP GRADE 12. AND SO HIS TOTAL LOSSES ARE $151,770. 12 MS. DRYOVAGE: I WOULD LIKE TO OFFER AT THIS TIME 13 PLAINTIFFS' EXHIBIT NO. 335 AND 336. 14 MR. SALTIEL: OBJECTION (SIC) TO THAT OR THE SAME 15 SHEETS FOR ANY OF THE OTHER PLAINTIFFS. 16 THE COURT: ALL RIGHT. LET'S JUST PUT THEM ALL IN. 17 THE CLERK: WHICH NUMBERS? 18 MS. DRYOVAGE: 335 AND 336. 19 THE CLERK: ALL OF THEM? 20 MS. DRYOVAGE: OH. THE REMAINING PAGES GO UP TO 21 360. AND -- 22 THE CLERK: 335 THROUGH 360. 23 MS. DRYOVAGE: EXCEPT FOR DENNIS MANN, WHICH IS 24 EXHIBIT NO. 356 AND 355. 25 (PAUSE IN THE PROCEEDINGS.) 1530 THOMAS - DIRECT / DRYOVAGE 1 MS. DRYOVAGE: OH, BEFORE CALZIA, THERE WERE TWO 2 MORE PLAINTIFFS, SO IT WOULD BE 331 THROUGH THE LAST NUMBER -- 3 THE CLERK: SO 331 THROUGH 360 LESS 356 AND 355? 4 MS. DRYOVAGE: THAT'S CORRECT. 5 (PLAINTIFFS' EXHIBITS 331 THROUGH 354 6 AND 357 THROUGH 360 RECEIVED IN 7 EVIDENCE) 8 BY MS. DRYOVAGE: 9 Q. NOW, JUST TO SPEED UP THE PROCESS A LITTLE BIT, CAN YOU JUST 10 BRIEFLY EXPLAIN WHAT THE ANALYSIS WAS FOR DR. LINDH. 11 A. OKAY. IF YOU CAN PUT THAT ON, IT, I THINK, WILL GO QUITE 12 QUICKLY. 13 ACTUALLY, WHILE YOU'RE PUTTING ON -- OKAY. THE 14 SALIENT FACT IS -- ABOUT DR. LINDH IS HE WAS ALSO REHIRED BY 15 USGS, BUT, MORE SPECIFICALLY, HE HAD TWO YEARS OF PAY 16 PROTECTION. SO FOR TWO YEARS, HE SUFFERED NO LOSS AT ALL, WHICH 17 IS WHY '95 AND '96 SHOWS AN "NA" AND WHY '97, THE AMOUNT OF 18 MONEY IS SO LITTLE. IN OTHER WORDS, HE HAD PAY PROTECTION UNTIL 19 MID-OCTOBER 1997. 20 AFTER THAT, HE WAS REHIRED AS A STEP 12, WHEN, IN 21 FACT, WHEN TIME OF DISCHARGE, HE HAD BEEN A -- NOT STEP 12, GS 22 LEVEL 12. WHEN TIME OF TERMINATION HE HAD BEEN A LEVEL 15, STEP 23 7. THE DIFFERENCE BETWEEN A GS15 STEP 7 AND A STEP 12 WHEN, IN 24 FACT, IT IS MY UNDERSTANDING -- STANDING THAT -- OH, NO, OKAY. 25 THE DIFFERENCE BETWEEN THOSE TWO IS WHAT IS THE CAUSE OF THE 1531 THOMAS - DIRECT / DRYOVAGE 1 LOSS IN THIS CASE. SO IT'S A -- IT'S A THREE-STEP DIFFERENCE, 2 AND I BELIEVE THERE'S ALSO BEEN MINIMUM PAY INCREASES FOR 3 DR. LINDH ONCE HE HAS -- ONCE HE RETURNED. SO THAT'S 4 OTHERWISE -- OTHER THAN THAT, THE CALCULATIONS ARE EXACTLY THE 5 SAME. 6 Q. OKAY. AND THEN JUST PUTTING UP THE SECOND SHEET HERE, THE 7 LOST PENSION ANALYSIS, THIS WAS DONE IN THE FALL OF 19 -- 8 2002 -- 9 A. AND -2. 10 Q. -- WAS IT NOT? 11 A. YES. AND YOU SEE THAT ADDITIONAL YEARS OF SERVICE WITHOUT 12 TERMINATION IS ZERO BECAUSE HE WAS REHIRED. AND THE ENTIRE 13 BASIS FOR THE LOST PENSION IS THE -- THE DIFFERENCE BETWEEN GS15 14 STEP 9 AND GS12 AT THE TIME OF TERMINATION. 15 Q. OKAY. I NOTE HERE THAT YOU HAVE THE DATE OF RETIREMENT 16 WITHOUT TERMINATION WOULD HAVE BEEN APRIL 1ST, 2003. WHERE DID 17 YOU GET THAT NUMBER? 18 A. YEAH, THAT NUMBER IS -- I'LL HAVE TO LOOK IT UP. I THINK 19 THAT'S A BLS NUMBER, BUT LET ME JUST LOOK HERE. NO, MR. LINDH 20 PLANNED TO RETIRE AT 60. BUREAU OF LABOR STATISTICS WOULD HAVE 21 GIVEN HIM A WORK LIFE UNTIL NEARLY 65, SO ACTUALLY I'VE CUT OFF 22 HIS LOSSES BY FOUR YEARS BASED UPON THE FACT THAT HE SAID HE 23 WANTED TO RETIRE AT 60. 24 Q. OKAY. AND WHEN YOU WROTE THIS, YOU WEREN'T AWARE THAT HE 25 ACTUALLY WAS GOING TO RETIRE AND DID RETIRE ON APRIL 1ST? 1532 THOMAS - DIRECT / DRYOVAGE 1 A. WELL, I WAS AWARE THAT HE SAID HE WANTED TO. I -- SINCE IT 2 HADN'T YET OCCURRED, THERE WAS NO WAY THAT I COULD KNOW THAT HE 3 ACTUALLY WOULD DO WHAT HE WANTED TO DO. BUT I KNEW THAT HE 4 WANTED TO DO IT. 5 Q. OKAY. THANK YOU. 6 NOW, THE NEXT GROUP WAS THE ONES THAT GOT JOBS. AND 7 IF YOU CAN BRIEFLY EXPLAIN HOW DR. ADAM'S CALCULATIONS WERE 8 DONE, AND I'LL PUT UP ON THE ELMO EXHIBIT NO. 331. 9 A. OKAY. UNLESS -- UNLESS THE COURT WISHES, I THINK THAT FROM 10 HERE ON OUT, EARNINGS WITHOUT TERMINATION ARE ALL GOING TO BE 11 EXACTLY THE SAME. THEY'RE BASED UPON WHAT THE PERSON -- WHERE 12 THE PERSON WAS AT THE TIME OF TERMINATION USING GS SCHEDULES, 13 AND THEN THE METHODS I'VE SAID. 14 SO WHAT IS REALLY OF INTEREST IS EARNINGS WITH 15 TERMINATION. MR. ADAMS WAS NOT ABLE TO FIND A JOB FOR '96, '97, 16 '98, AND THEN FOUND VARIOUS PART-TIME JOBS WORKING AT AIR 17 QUALITY CONTROL, TEACHING AT VARIOUS COMMUNITY COLLEGES. HE GOT 18 UP TO A LEVEL AT THE END OF 2002 OF 34,147. THAT IS THE NUMBER 19 I HAVE CHOSEN TO PROJECT INTO THE FUTURE. THE ONLY PROBLEM WITH 20 THAT IS THAT THE CONTRACT UNDER WHICH HE GOT THAT HAS NOW 21 TERMINATED. SO, IN FACT, THERE'S NO GUARANTEE THAT MR. ADAMS 22 WILL MAKE 34 -- IN FACT, HE WILL NOT, IN ALL LIKELIHOOD, MAKE 23 THE 34,147 FROM U.C. DAVIS 'CAUSE THAT CONTRACT'S OVER WITH. 24 BUT IT SEEMED TO ME THAT THE BEST PROJECTION WAS THAT 25 HE WOULD BE ABLE TO COBBLE TOGETHER SOME SET OF PART-TIME JOBS 1533 THOMAS - DIRECT / DRYOVAGE 1 AND TEACHING JOBS WHERE HE COULD MAINTAIN THAT LEVEL. SEEMED TO 2 ME THAT 34,000 WAS SUFFICIENTLY LOW THAT I HAD NO BASIS TO IT, 3 ON THE LONG-TERM, DECREASE IT. AND I HAVE NO IDEA HOW LONG IT 4 WILL TAKE HIM TO PUT TOGETHER A NEW SET OF TEACHING JOBS. IT 5 COULD BE SIX MONTHS. IT COULD BE A YEAR. I'VE BEEN 6 CONSERVATIVE HERE AND SAID THAT HE COULD CONTINUE ON AT THAT 7 LEVEL, BUT I DON'T REALLY KNOW. 8 THE SHEET YOU HAVE IN FRONT OF YOU -- OH, AND HE ALSO 9 HAS THE AIR QUALITY CONTROL JOB WHICH IS CONTINUING, WHICH IS 10 PART OF THAT 34,147. 11 THE SHEET YOU HAVE IN FRONT OF YOU I HAVE MADE A 12 SLIGHT REVISION TO BECAUSE ONE OF HIS TEACHING JOBS DID HAVE 13 RETIREMENT CONNECTED WITH IT. MOST OF HIS OTHER JOBS DID NOT. 14 AND JUST IN TOTAL, THAT REVISION WOULD LOWER HIS LOSS FROM 15 873,602 DOWN TO 861,889. IN OTHER WORDS, BASICALLY A $12,000 16 LOWERING. AND THE WAY I WOULD LOWER IT -- I DON'T KNOW IF YOU 17 WANT -- WANT THE SHEET, BUT THE WAY I WOULD LOWER IT IS I WOULD 18 JUST ADD THE -- TO EARNINGS WITH TERMINATION. I WOULD ADD WAGES 19 PLUS RETIREMENT IN OTHER WORDS. I WOULD TREAT THE RETIREMENT AS 20 IF IT WAS A CONTRIBUTION AT 6.8 PERCENT AND JUST ADD IT TO 21 WAGES. 22 Q. OKAY. IN ALL OF THESE CALCULATIONS, DID YOU -- HOW DID YOU 23 TREAT THE HEALTH BENEFITS OF THE INDIVIDUALS? 24 A. I THINK THERE'S ONE INDIVIDUAL WHERE I -- AND I FORGET WHICH 25 ONE IT WILL COME UP AS WE GO THROUGH IT, WHERE I DID LOOK AT THE 1534 THOMAS - DIRECT / DRYOVAGE 1 LOST HEALTH BENEFITS BEFORE THEY WERE RE-EMPLOYED. IT WAS A 2 SMALL AMOUNT OF MONEY, I THINK MAYBE A COUPLE THOUSAND DOLLARS, 3 BUT IN GENERAL, THE PEOPLE WHO DID NOT FIND A JOB GOT HEALTH 4 BENEFITS THROUGH GOVERNMENT RETIREMENT. THE PEOPLE WHO DID FIND 5 A JOB GOT HEALTH BENEFITS THROUGH THEIR EMPLOYER. AND I REALLY 6 DID NOT HAVE ENOUGH INFORMATION TO DO WHAT I WOULD CONSIDER TO 7 BE A GOOD JOB ON THE FEW PEOPLE WHO MIGHT HAVE LOST OUT IN 8 HEALTH BENEFITS. IT SEEMED TO BE A SMALL ENOUGH NUMBER THAT WE 9 AGREED TO LEAVE THAT OUT AND CONCENTRATE ON THE LARGER LOSSES, 10 BUT SOME PEOPLE DID SUFFER A LOSS IN HEALTH BENEFITS. 11 Q. OKAY. AND YOUR CALCULATIONS DOESN'T (SIC) REFLECT THAT 12 LOSS, DOES IT? 13 A. NO, IT DOES NOT. 14 Q. OKAY. IS THERE ANYTHING UNUSUAL THAT NEEDS TO BE EXPLAINED 15 ABOUT DR. ADAM'S LOST PENSION ANALYSIS? 16 A. NO. I MEAN, IT'S VERY STRAIGHTFORWARD. WITH THE EXCEPTION 17 THAT I HAD NOT INCLUDED THE -- THE PENSION AT ONE OF HIS SORT OF 18 HALF-TIME TEACHING JOBS. EVERYTHING ELSE IS -- IS STANDARD. I 19 HAD INCLUDED THE SOCIAL SECURITY ON THE -- 20 NO. NO -- I -- OKAY. IT'S REALLY JUST COMPLETELY 21 STANDARD WITH THE REST OF THEM. 22 Q. WITH RESPECT TO JAMES DRINKWATER, HOW DID YOU CALCULATE HIS 23 DAMAGES? 24 A. OKAY. TO PUT MR. DRINKWATER ON, AGAIN, THE FIRST THING TO 25 LOOK AT IS THERE ARE NO WAGES AFTER THE RIF THROUGH 1999. IN 1535 THOMAS - DIRECT / DRYOVAGE 1 FACT, THROUGH PART OF 19 -- THROUGH 1998 AND THROUGH PART OF 2 1999, THE GENTLEMAN WAS UNABLE TO FIND A JOB. AS PART OF THE 3 RECORD, AS PART OF WHAT I WAS GIVEN IS, YOU KNOW, FOUR OR FIVE 4 PAGES OF HOW HE TRIED TO FIND A JOB. 5 THE JOB HE FINALLY DID FIND -- AT TIME OF 6 TERMINATION, HE WAS A GS11 STEP 4. THE ONLY JOB HE WAS ABLE TO 7 FIND EVENTUALLY WAS AS A GS5. HE EVENTUALLY HAS BEEN PROMOTED 8 TO A GS7. AND FOR THE FUTURE, THERE IS AN ISSUE. YOU KNOW, 9 THIS IS A MAN WHO IS -- PREVIOUSLY WORKED AS A GS11. HE'S NOW 7 10 YEARS SINCE HE'S BEEN -- WORKED AT THAT LEVEL, SO HIS RESUME'S 11 WAY OUT OF DATE, BUT WHAT DO I DO WITH HIM IN THE FUTURE? 12 AND I MADE THE DECISION, ACTUALLY, IN DISCUSSION, I 13 BELIEVE, WITH -- WITH PLAINTIFFS' COUNSEL, THAT HE WAS APPLYING 14 FOR A LOT OF JOBS, AND IT WAS QUITE POSSIBLE, IN FACT, PROBABLE, 15 THAT HE WOULD DO BETTER THAN A GS7. SO I UPPED HIM TO A GS9. 16 IT IS MY UNDERSTANDING THAT HE IS CURRENTLY APPLYING 17 BUT HAS NOT RECEIVED AN OFFER ON A GS11 JOB. HE HAS APPLIED ON 18 GS11 AND GS12 JOBS IN THE PAST AND BEEN TURNED DOWN. 19 GS9 FOR THE FUTURE WAS MY ASSESSMENT OF, GIVEN HIS 20 HISTORY OF GS5 AND GS7 WORK, TO BE AN AGGRESSIVE ASSUMPTION. 21 BUT ONE MIGHT OBJECT TO THAT. BUT THAT'S WHAT I WENT WITH, IS 22 THAT'S WHAT HE SHOULD BE FAIRLY STRAIGHTFORWARDLY ABLE TO DO IF 23 NOT NEXT YEAR, WITHIN A YEAR OR SO. AND I JUST -- I STARTED 24 WITH -- STARTED WITH FUTURE. 25 I MEAN, THAT'S -- OKAY. THAT'S THE REAL ISSUE ABOUT 1536 THOMAS - DIRECT / DRYOVAGE 1 MR. DRINKWATER, IS HIS WAGES IN THE FUTURE. AND WILL HE EVER BE 2 ABLE TO -- TO DO BETTER THAN A GS7. AND MY ANSWER TO THAT IS 3 YES. AND THE ISSUE BECOMES IN THE FUTURE, HOW MUCH BETTER THAN 4 A GS7, WHICH IS WHERE HE IS RIGHT NOW, CAN HE DO? AND MY ANSWER 5 IS MY BEST -- MY ASSUMPTION IS A 9, AND ONE COULD ARGUE WITH 6 THAT, BUT THAT'S THE ONE I USED. 7 Q. OKAY. WAS HIS PENSION BENEFITS AFFECTED BY THE RIF? HE'S 8 WORKING FOR FEDERAL GOVERNMENT? 9 A. WELL, YEAH. VERY -- VERY STRANGE. HE LOST WHAT -- LET ME 10 TURN TO THE NEXT SHEET. I'LL TURN TO THE NEXT SHEET. YOU DON'T 11 HAVE TO PUT IT ON. HE LOST THREE YEARS AND TEN MONTHS OF 12 PENSION BENEFIT CREDIT, BUT -- AND THEN HE LOST THE HIGHEST 13 THREE COMPARED TO WHAT HE WOULD HAVE GOTTEN IF HE HADN'T GOTTEN 14 THE STEPS UP FROM A GS11 STEP 4, IF HE CONTINUED THOSE STEP 15 INCREASES. HOWEVER, EVEN THOUGH HE'S DOWN AT A GS7, IT'S THE 16 HIGHEST THREE YEARS, SO HE WILL GET A PENSION BENEFIT NO WORSE 17 THAN HIS BEING AT A GS11 STEP 4. 18 SO EVEN IF HE MAINTAINS HIMSELF, CANNOT DO BETTER 19 THAN A GS7, HIS PENSION BENEFITS WILL BE AT THE GS11. SO THE 20 LOSS IN PENSION BENEFITS ARE LESS THAN THEY WOULD OTHERWISE BE. 21 OF COURSE, IF HE EVER MANAGED TO GET BACK TO A, YOU KNOW, GS11 22 OR 12, WHICH IS WHAT HE NORMALLY WOULD HAVE BEEN AT, THEN HIS 23 PENSION BENEFITS WOULD BE BETTER. 24 Q. SO YOU DID NOT ASSUME THAT MR. DRINKWATER WOULD -- IF HE HAD 25 CONTINUED TO WORK AT THE USGS BEEN PROMOTED ABOVE GS11 IN ANY 1537 THOMAS - DIRECT / DRYOVAGE 1 PART OF YOUR ANALYSIS OF HIM, DID YOU? 2 A. I DON'T BELIEVE SO. GIVEN THAT HE WAS A STEP 4, AND THAT 3 STARTING AT STEP 5, THERE'S THREE YEARS BETWEEN PROMOTIONS, 4 THERE'S NO WAY HE COULD HAVE GOTTEN TO THE TOP -- 5 Q. BUT THAT WOULD HAVE BEEN -- 6 A. -- TOP OF THE SCHEDULES. 7 Q. SO YOUR ANALYSIS IS CONSERVATIVE WITH RESPECT TO HIS FUTURE 8 WAGES? 9 A. YES, I DON'T TAKE HIM ABOVE THE TOP STEP OF GS11. 10 Q. OKAY. IF -- IF YOU COULD TURN TO ALICČ DAVIS'S ANALYSIS AND 11 EXPLAIN WHAT YOUR CALCULATIONS WERE FOR HER. 12 A. YES. ALICČ DAVIS IS REALLY SORT OF THE SUCCESS STORY IN THE 13 GROUP. SHE WAS ABLE TO GET RE-EMPLOYED IN THE FALL OF '96 WITH 14 THE MONTEREY BAY AREA AQUARIUM RESEARCH INSTITUTE. SHE STARTED 15 OUT AS A -- I THINK IT WAS A TECHNICIAN AND THEN GOT SOME 16 PROMOTIONS. 17 HER SALARY LEVEL, WHILE NOT COMING BACK UP TO WHAT 18 SHE HAD AT USGS, HAS COME CLOSE TO IT. AND -- AND, THEREFORE, 19 MOST OF HER LOSS, AS SEEN ON THE SHEET THERE, IS IN THE PENSION 20 CATEGORY. NOW -- BECAUSE, YOU KNOW, JUST -- THE GOVERNMENT 21 PENSION IS EXTREMELY VALUABLE. NOW ON ALICČ -- ON -- NOT 22 ALICČ -- ALICE DAVIS. I MADE -- IT'S NOT A MISTAKE. I DIDN'T 23 HAVE THE INFORMATION. SHE GETS AT MONTEREY BAY AQUARIUM A 24 TEN PERCENT CONTRIBUTION TO 401K FOR RETIREMENT. THAT IS NOT A 25 RETIREMENT, GUARANTEED RETIREMENT, LIKE YOU -- LIKE THE 1538 THOMAS - DIRECT / DRYOVAGE 1 GOVERNMENT. IT'S A -- IT'S A GUARANTEED CONTRIBUTION. IT'S NOT 2 A GUARANTEED BENEFIT, SO WHAT I DID IS ONCE I FOUND THAT OUT, I 3 ADDED ON TO THAT COLUMN EARNINGS WITH TERMINATION EACH OF THE 4 WAGES. I ADDED 10 PERCENT. SO THE CHART YOU HAVE IN FRONT OF 5 YOU, WHICH SHOWS LOSSES OF 607400, IF YOU ADD IN THAT 10 PERCENT 6 RETIREMENT, THAT CONTRIBUTION, IT COMES DOWN TO 476296. 7 AND I DON'T KNOW IF I SHOULD GIVE YOU A COPY OF THIS 8 OR I SHOULD WRITE IT ON THE BOARD, BUT SOMEHOW THAT NEEDS TO BE 9 IN THE RECORD, THAT THERE IS ABOUT A HUNDRED AND -- WHAT -- 10 ABOUT $130,000 REDUCTION BASED UPON THE RETIREMENT CONTRIBUTIONS 11 BY THE MONTEREY BAY AQUARIUM RESEARCH INSTITUTE. 12 THE COURT: WELL, WRITING ON THE BOARD IS NOT GOING 13 TO HELP ANYTHING. YOU NEED TO SUBMIT A SET OF EXHIBITS THAT 14 ARE CORRECT. 15 MS. DRYOVAGE: OKAY. 16 THE COURT: I'D LIKE TO HAVE A SET RIGHT NOW BECAUSE 17 THAT WOULD BE MORE USEFUL, BUT -- AND THEN YOU'D HAVE TO 18 REPLACE THEM WITH A SET THAT WAS CORRECTED THE RIGHT NUMBERS 19 ONCE HE'S FINALIZED HIS OPINION. 20 MS. DRYOVAGE: OKAY. 21 THE WITNESS: I DO HAVE A SUMMARY SHEET NOW WITH ALL 22 THE CORRECT NUMBERS ON IT, IF THAT WOULD BE OF ASSISTANCE. 23 THE COURT: IT'S NOT MY DECISION. 24 MS. DRYOVAGE: YES. I THINK THAT WOULD BE -- 25 THE COURT: BUT IT WOULD HELP ME IF YOU HAD A SET 1539 THOMAS - DIRECT / DRYOVAGE 1 THAT I COULD LOOK AT RIGHT NOW. 2 MS. DRYOVAGE: OKAY. 3 THE WITNESS: OKAY. 4 MS. DRYOVAGE: I'M SORRY. I THOUGHT THAT YOU WERE 5 GIVEN -- 6 THE COURT: WELL, IF YOU GIVEN THEM TO THE CLERK, I 7 CAN ASK THEM HER FOR THEM. HAS SHE GIVEN YOU A SET, SHEILAH? 8 MS. DRYOVAGE: I GAVE ONLY ONE SET. I'M SORRY. 9 THE COURT: WELL, I HAVE THE SUMMARY SET, BUT I 10 DON'T HAVE ANYTHING ABOUT EACH OF THE INDIVIDUALS. 11 MS. DRYOVAGE: OH, THAT WOULD BE IN THE EXHIBIT 12 BINDER. 13 THE COURT: NO, NOT THIS. 14 MS. DRYOVAGE: NO, THIS IS NOT WHAT YOU WANT. 15 THE -- 16 THE COURT: WHATEVER IT IS YOU'RE LOOKING AT THAT 17 HAS THE CALCULATION, A LITTLE WORKSHEET THAT -- THE CALCULATION 18 FOR EACH PERSON. 19 MS. DRYOVAGE: THE JUDGE'S EXHIBITS FOR 331 THROUGH 20 360. 21 THE COURT: OH, THEY'RE THE ONES YOU SUBMITTED? NO, 22 THAT'S ALL RIGHT. IF THEY'RE ONES I ALREADY HAVE? 23 MS. DRYOVAGE: YES. 24 THE COURT: I HAVE TO FIND THEM IN THE BINDERS? 25 MS. DRYOVAGE: YES. I BELIEVE IT'S BINDER NO. 3. 1540 THOMAS - DIRECT / DRYOVAGE 1 AND -- 2 THE WITNESS: EXCUSE ME. THESE ARE -- I HAVE 3 ANOTHER COPY IF YOU WANT IT. THOSE ARE THE THREE REVISIONS I 4 MADE BASED UPON PENSION. 5 MS. DRYOVAGE: OKAY. THEN WE'LL HAVE TO COPY THIS. 6 THE WITNESS: AND THEN I HAVE -- THIS IS WITH THE 7 REVISED NUMBERS FOR THOSE THREE PERSONS, AND THEN THE FINAL 8 SHEET BROUGHT UP TO -- AND THAT'S ALL CURRENT. AND I CAN GIVE 9 YOU ADDITIONAL COPIES OF THAT IF YOU NEED IT. 10 Q. YES, WE NEED A COUPLE SETS. 11 A. THERE'S THIS, AND THAT. THERE'S ONE COPY OF THAT, AND A 12 SECOND COPY. THAT'S A SECOND. I CAN ONLY GIVE YOU THREE OF 13 THAT. 14 Q. SO THE REVISED CHART OF THE LOSSES BY INDIVIDUAL, IT'S A 15 TWO-PAGE DOCUMENT. AND THE SECOND CHART IS IMPACT OF MOVING 16 DATE FROM FUTURE -- FROM SEPTEMBER 1ST, 2002, TO JULY 15TH, 17 2003, WILL BE OFFERED AS THE PLAINTIFFS' NEXT IN ORDER. 18 THE CLERK: THAT'S EXHIBIT 793. 19 ARE THESE TWO INDIVIDUAL -- 20 MS. DRYOVAGE: TWO INDIVIDUAL COPIES, ONE FOR THE 21 COURT AND ONE FOR THE RECORD. 22 (PLAINTIFFS' EXHIBIT 793 23 MARKED FOR IDENTIFICATION) 24 (PAUSE IN THE PROCEEDINGS.) 25 MS. DRYOVAGE: AND THEN 794 ARE THE CORRECTED COPIES 1541 THOMAS - DIRECT / DRYOVAGE 1 FOR DAVE ADAMS, ALICÉ DAVIS, AND STEPHEN LEWIS BASED ON THE 2 TESTIMONY THAT THE RETIREMENT INFORMATION -- 3 THE COURT: WHY DON'T YOU COME SOMETIME WHEN WE'RE 4 NOT IN SESSION AND REPLACE THE ONES IN THE BOOKS WITH THE 5 CORRECT ONES RATHER THAN HAVING NEW ONES THAT -- 6 MS. DRYOVAGE: OKAY. I WILL. I'LL PROVIDE THEM TO 7 COUNSEL NOW. 8 BY MS. DRYOVAGE: 9 Q. SO THE NEXT ONE AFTER ALICÉ DAVIS IN THIS CATEGORY WOULD BE 10 DR. IYER. 11 A. YES. 12 Q. AND HOW DID YOU COMPUTE HIS BENEFITS, LOST WAGES? 13 A. OKAY. AGAIN, ABSOLUTELY STANDARD, THE INFORMATION THAT IS 14 MOST UNIQUE TO -- IS UNIQUE TO DR. IYER IS THAT HE WAS NOT ABLE 15 TO FIND A JOB, FELT THAT HE NEEDED ADDITIONAL MONEY BECAUSE OF 16 HOME SITUATION, AND MAKE A LONG STORY SHORT, HE TOOK A JOB AT 17 ABOUT ONE-QUARTER OF THE SALARY THAT HE WAS EARNING AT USGS. 18 Q. AND WAS THAT IN THE PRIVATE SECTOR OR PUBLIC SECTOR? 19 A. THAT WAS THE ONLY PERSON THAT WENT INTO THE PRIVATE SECTOR. 20 IT WAS WITH A GROUP THAT IS NOW CALLED GAIL PUBLICATION, AND HE 21 BASICALLY IS AN INDEXER, SLASH, EDITOR AND, YOU KNOW, THE 22 REASONS FOR IT APPARENTLY ARE THAT -- 23 THE COURT: WE DON'T NEED FOR YOU TO TELL US WHAT 24 THE REASONS -- 25 THE WITNESS: OKAY. 1542 THOMAS - DIRECT / DRYOVAGE 1 THE COURT: -- FOR HIS DECISION ARE. YOU'RE TO TELL 2 US ABOUT NUMBERS. 3 THE WITNESS: FINE. 4 IN ANY CASE, GIVEN THAT HE CHOSE THAT JOB, HIS 5 DAMAGES ARE VERY STRAIGHTFORWARD. 6 THE ONLY POINT WHERE I MIGHT CHANGE THE ANALYSIS AND 7 I WOULDN'T CHANGE IT NOW IS THAT THERE HAS BEEN A CHANGE IN HIS 8 HOME SITUATION AT THIS TIME. AND BASED UPON THE CHANGE IN THAT 9 HOME SITUATION, IT'S NOT CLEAR THAT HE WOULD CONTINUE IN THIS 10 JOB, WHICH HE CONSIDERS A RATHER MENIAL JOB, SO THE PROJECTED 11 FUTURE INCOME COULD BE LESS, COULD BE A LITTLE BIT MORE. BUT 12 GIVEN THAT I DIDN'T KNOW ABOUT THE UNFORTUNATE CHANGE IN HIS 13 HOME SITUATION, I CHOSE TO CONTINUE HIS RATE OF INCOME AT THE 14 RATE THAT HE WAS EARNING. 15 MS. DRYOVAGE: OKAY. 16 Q. AND IS THAT CONSERVATIVE IN LIGHT OF THE AMOUNT OF LAYOFFS 17 IN THE SILICON VALLEY AREA? 18 MR. SALTIEL: OBJECTION, LEADING QUESTION, CALLS FOR 19 SPECULATION. 20 THE COURT: SUSTAINED. 21 MS. DRYOVAGE: OH. 22 Q. NOW, HOW DID YOU ANALYZE DR. IYER'S PENSION LOSS? 23 A. WELL, THE SAME WAY. THERE IS NO PENSION WITH THE JOB THAT 24 HE IS NOW IN, SO THE LOSS IS THE LOSS IN GOVERNMENT PENSION THAT 25 HE SUSTAINED BY BEING RIF'ED IN 1995. 1543 THOMAS - DIRECT / DRYOVAGE 1 Q. OKAY. SO HE'S CURRENTLY RECEIVING A PENSION. HOW DID YOU 2 COMPUTE WHAT THE LOSS WOULD BE FOR HIM? 3 A. WELL, I KNOW THE PENSION THAT HE RECEIVED BASED UPON HIS 4 YEARS OF SERVICE UP TO 1995. I KNOW HOW MANY YEARS OF 5 ADDITIONAL SERVICE -- IF YOU LOOK AT THE SECOND SHEET. YEAH, HE 6 WOULD HAVE HAD 10 YEARS, 4.3 MONTHS OF ADDITIONAL SERVICE, BASED 7 UPON HIS DATE OF RETIREMENT. THAT WOULD HAVE CAUSED THE PENSION 8 INCREASE OF 20.72 PERCENT, AND HE WOULD HAVE GONE FROM A GS9 TO 9 A -- GS15-9 TO A GS15-10, AND THAT'S A -- YOU KNOW, THE STEP 10 INCREASE IS VERY SMALL, BUT THAT'S BECAUSE STEP 15 -- STEP 10 IS 11 THE TOP OF THE SCALE. AND I -- THERE'S NO PLACE FOR HIM TO GO, 12 SO HE'S STUCK AT A LEVEL 10 ONCE HE GETS THERE. 13 BUT, STILL, GIVEN THE KINDS OF INCREASES, THAT'S 14 ANOTHER 41.06 PERCENT INCREASE, AND THAT GIVES THE -- WHAT HIS 15 PENSION THAT HE WILL RECEIVE -- WAS RECEIVING, IS RECEIVING 16 VERSUS THE ONE THAT HE WILL START RECEIVING OR COULD HAVE 17 STARTED RECEIVING IN 2006. SO IT'S AN ABSOLUTELY STANDARD 18 CALCULATION, ONCE AGAIN, USING GOVERNMENT FORMULAS. 19 Q. NOW, DR. KING IS THE NEXT PERSON YOU ANALYZED IN THIS GROUP. 20 HOW DID YOU COME UP WITH HIS TOTAL ECONOMIC LOSS? 21 A. AGAIN, IT'S ABSOLUTELY STRAIGHTFORWARD AND STANDARD. THE 22 ONLY THING TO PERHAPS NOTE ON THIS IS DR. KING WAS ABLE TO FIND 23 ONLY ONE EMPLOYMENT FOR TWO YEARS WITH THE GOVERNMENT OF JAPAN 24 AND WHAT HE WAS PAID IN YEN WAS CONVERTED USING A AVERAGE 25 CONVERSION RATE FOR THOSE TWO YEARS. 1544 THOMAS - DIRECT / DRYOVAGE 1 OTHER THAN THAT, HE HAS NO -- NO INCOME, HAS NOT HAD 2 ANY INCOME. I THINK THERE MAY BE A -- YOU KNOW, AN $800 -- 3 PARDON ME, A $200 HONORARIUM IN THERE SOMEPLACE IN THERE THAT I 4 MISSED, BUT BASICALLY HE HAD NO EMPLOYMENT SINCE RETURNING FROM 5 HIS WORK WITH THE GOVERNMENT OF JAPAN. AND, THEREFORE, THAT IS 6 THE REASON FOR HIS EARNINGS WITH TERMINATION BEING ZERO. 7 Q. AND HOW DID -- WAS HIS LOST PENSION ANALYSIS COMPUTED? 8 A. SAME, YOU KNOW -- EXACTLY THE SAME WAY. WE CAN GO THROUGH 9 IT. HE -- THERE WOULD BE ANOTHER 10 YEARS, 5 -- 10.5 MONTHS TO 10 RETIREMENT IF HE HAD STAYED WITH USGS. HE WAS ALREADY AT LEVEL 11 14, 10. BUT BECAUSE OF THE COST OF LIVING INCREASES, THAT WOULD 12 HAVE INCREASED QUITE A BIT IF HE HAD STAYED WITH USGS. 13 SO THERE'S A 33.8 PERCENT INCREASE IN PENSION DUE TO 14 THAT, SO YOU -- YOU ADD -- YOU KNOW, MULTIPLY THOSE TWO FACTORS 15 TOGETHER, AND YOU FIND THAT HIS PROJECTED PENSION IN 2006 WOULD 16 HAVE BEEN 76,000, WHEREAS HIS ACTUAL PENSION IS 46. 17 NOW, JUST TO NOTE, AND THIS IS TRUE OF ALL OF THEM, 18 NOT JUST DR. KING, THAT THE IMPACT OF THAT HIGHER PENSION IS 19 REDUCED BY THE FACT THAT HE DOESN'T GET IT UNTIL 2006. AND, 20 THEREFORE, WHEN YOU PRESENT-VALUE IT, YOU HAVE TO TAKE ACCOUNT 21 OF THE FACT THAT THAT MONEY DOESN'T START TO COME IN UNTIL 2006. 22 SO IT'S -- YOU KNOW, YOU'RE BALANCING LESSER MONEY. 23 YOU'RE GETTING IT NOW WITH NO PRESENT VALUING ON IT, AND IN THE 24 NEAR FUTURE VERSUS MORE MONEY FURTHER OUT IN THE FUTURE, BUT 25 THAT'S ALL TAKEN CARE OF BY PRESENT VALUING, AND IT'S, AGAIN, A 1545 THOMAS - DIRECT / DRYOVAGE 1 VERY STANDARD CALCULATION. 2 Q. NOW, HOW DID YOU CALCULATE DR. LEWIS'S LOST WAGES? 3 A. DR. LEWIS -- IT'S HARD FOR ME TO TELL WHAT WAS POSSIBLY 4 SEVERANCE PAY AND -- BECAUSE HE ACTUALLY EARNED MORE IN '95 AND 5 '96 THAN HE WOULD HAVE WITH USGS. AND YET, I KNOW HIS WAGE RATE 6 WAS LESS THAN -- THAN THE AMOUNTS WITH USGS IN THAT YEAR. SO I 7 GUESS HE GOT A SEVERANCE PACKAGE OR TERMINATION PAY WHICH UPPED 8 IT. 9 BUT IN ANY CASE, HE GOT RE-EMPLOYED WITH SRI. HE 10 THEN WENT TO U.C. SANTA CRUZ, AND THEN WENT TO FRESNO STATE 11 UNIVERSITY. 12 MS. DRYOVAGE: U.C. FRESNO. 13 A. NO. I'M SORRY, THE STATE COLLEGE AT FRESNO. WHERE HE IS 14 NOW TEACHING. THAT HAS A -- THE EQUIVALENT OF A STEP INCREASE 15 BUILT INTO PROFESSORS' SALARIES WHERE HE HAS TENURE. AND, 16 THEREFORE, AS YOU LOOK INTO THE FUTURE, I HAVE BEEN ABLE TO 17 PROJECT QUITE ACCURATELY WHAT HE WILL BE ABLE TO EARN AT FRESNO, 18 GOES WITH TENURE AND WITH THE BUILT-IN STEP INCREASES, TAKING 19 OUT THE INFLATIONARY INCREASES, IT'S -- YOU KNOW, IT'S -- IT'S 20 SET IN CONCRETE WHAT THE MAN -- WHAT THE MAN WILL BE ABLE TO 21 EARN AT FRESNO. 22 Q. AND HOW DID YOU CALCULATE HIS LOST PENSION? 23 A. WELL, THE SHEET SHOWS THE LOST PENSION BASED UPON THE NUMBER 24 OF YEARS OF -- THAT HE MISSES OF SERVICE WITH USGS AND THE 25 CHANGE IN WHAT HIS GS RATING WOULD BE. 1546 THOMAS - DIRECT / DRYOVAGE 1 NOW, THE -- WHY THERE'S A REVISED SHEET IS BECAUSE 2 THERE IS A PENSION PLAN, WHICH I HAVE NO DETAILS ON, BOTH AT 3 U.C. SANTA CRUZ AND STATE COLLEGE IN FRESNO. WHAT I USED WAS 4 6.8 PERCENT, WHICH IS A STANDARD VALUATION OF A -- OF A PENSION 5 PLAN, THE CONTRIBUTION TO THE PENSION PLAN. DON'T KNOW WHAT IT 6 WOULD EXACTLY BE, AND I HAD TO ADD THAT IN, WHICH IS THE REASON 7 FOR THE REVISION. SO HIS LOSS DECREASES FROM MY INITIAL REPORT 8 FROM 918423 DOWN TO 786471. 9 Q. NOW, MOVING ON TO THE GROUP THAT OBTAINED EMERITUS STATUS AT 10 THE USGS FOLLOWING THE RIF, MR. ADAMI IS THE FIRST PERSON IN 11 THAT GROUP. 12 HOW DID YOU CALCULATE HIS LOSSES? 13 A. WELL, MR. ADAMI WAS A VOLUNTEER. ALL THE OTHER ONES IN THAT 14 GROUP HAD EMERITUS STATUS, AND I DON'T KNOW WHAT I SHOULD BE 15 SAYING ABOUT EMERITUS STATUS AND THE MAINTENANCE OF PROFESSIONAL 16 QUALIFICATIONS THROUGH THE USE OF IT, BUT EVERYONE IN THAT GROUP 17 BASICALLY HAS NO INCOME, THOUGH A NUMBER OF THEM -- MR. ADAMI 18 WORKED FULL-TIME FOR A YEAR -- A NUMBER OF THEM ARE WORKING ON 19 EMERITUS STATUS 40 HOURS A WEEK DOING EXACTLY THE SAME KIND OF 20 RESEARCH THEY WERE DOING PREVIOUSLY. 21 MR. SALTIEL: OBJECTION, ASSUMES FACTS NOT IN 22 EVIDENCE. 23 THE COURT: RIGHT. WHAT YOU NEED TO TELL US IS WHAT 24 THEY EARNED AND WHAT EFFECT IT HAD ON YOUR DAMAGE CALCULATIONS. 25 THE WITNESS: OKAY. EMERITUS STATUS, WHEN YOU TAKE 1547 THOMAS - DIRECT / DRYOVAGE 1 THAT, DOES NOT PAY YOU ANYTHING. IT PROVIDES YOU WITH 2 LABORATORY FACILITIES AND, I GUESS, A SECRETARY AND AN OFFICE 3 BUT DOES NOT PROVIDE YOU WITH ANY PAY, DOES NOT PROVIDE YOU 4 WITH ANY FRINGE BENEFITS, DOES NOT PROVIDE YOU WITH ANY 5 INCREMENT TO YOUR PENSION. 6 SO ALL OF THE PEOPLE IN THAT -- IN THIS GROUP ARE 7 CHARACTERIZED BY THE FACT THAT THEY -- WELL, MR. ADAMI WAS A 8 VOLUNTEER. ALL THE REST OF THEM WERE ON EMERITUS STATUS AND, 9 THEREFORE, NOT BEING PAID. AND SINCE THEY WERE WORKING UP TO 10 40 HOURS A WEEK AT THAT, THERE WAS NOTHING ELSE THEY COULD DO, 11 AND, THEREFORE, THEIR PAY IS ZERO, AND THEIR ABILITY TO GET 12 OTHER PAY WHILE ON EMERITUS STATUS IS ZERO. 13 AND, THEREFORE, AS WE GO THROUGH EACH OF THEM, IF 14 YOU LOOK AT MR. ADAMI, YOU SEE ZEROS. IF WE GO TO MR. CSEJTEY, 15 MR. FORD, AND MR. GRANTZ -- OR MR. WRUCKE, YOU WILL FIND ZEROS, 16 AGAIN, IN THE EARNINGS COLUMN, BECAUSE, AGAIN, THEY WERE ON 17 EMERITUS STATUS. 18 BY MS. DRYOVAGE: 19 Q. OKAY. AND HOW DID THE RIF AFFECT DR. ADAMI IN TERMS OF LOST 20 PENSION? 21 A. WELL, VERY STANDARD. ONCE HE WAS RIF'ED, HE STOPPED GETTING 22 YEARS BUILD-UP, AND HE STOPPED GETTING STEP INCREASES. AND HE 23 STOPPED GETTING COST-OF-LIVING INCREASES SO THAT HE -- IT 24 REDUCED HIS NUMBER OF YEARS OF SERVICE, AND IT REDUCED HIS 25 HIGHEST THREE FROM WHAT HE WOULD HAVE HAD HAD HE STAYED. AND, 1548 THOMAS - DIRECT / DRYOVAGE 1 YOU KNOW, THAT'S -- THAT'S THE LONG AND THE SHORT OF IT. IT'S A 2 VERY STANDARD CALCULATION. 3 MR. ADAMI'S CASE, 'CAUSE HE SAID HE WANTED TO RETIRE 4 AT 60, HE JUST LOST 5 YEARS OF SERVICE, AND HE LOST THE 5 DIFFERENCE OF GOING FROM A GS12 STEP 8 TO A GS12 STEP 9, PLUS 6 THE COST-OF-LIVING INCREASES. 7 Q. OKAY. HOW DID YOU CALCULATE DR. CSEJTEY'S ECONOMIC LOSS? 8 A. DR. CSEJTEY'S CHART LOOKS THE SAME AS MR. -- DR. ADAMI'S 9 WITH THE EXCEPTION THAT THERE'S A DIFFERENT RETIREMENT AGE. BUT 10 IT'S THE SAME NUMBERS, NO INCOME. DR. -- DR. CSEJTEY IS 11 EMERITUS WITH THE PARK SERVICE AT THIS POINT. 12 Q. AND HOW DID THAT AFFECT HIS PENSION? 13 A. WELL, SPECIFICALLY LOST TEN YEARS, NEARLY 11 YEARS OF -- OF 14 INCREASED SERVICE, AND HE -- WELL, HE WAS NO DIFFERENCE IN 15 STEPS, HE WAS AT A GS14, STEP 10, WHICH WAS MAINTAINED, BUT HE 16 LOST THE COST-OF-LIVING INCREASES OVER -- OVER THAT PERIOD OF 17 TIME. SO THAT -- ALL OF THAT REDUCED HIS PENSION. 18 Q. OKAY. HOW DID YOU CALCULATE DR. FORD'S LOST WAGES? 19 A. DR. FORD IS ROUGHLY IN THE SAME SITUATION. AGAIN, EMERITUS 20 STATUS. HE'S THE ONE WHO'S AN EXPERT ON ANTARCTICA. HE WAS A 21 STEP -- LEVEL 15, STEP 10. HOWEVER, ON HIS INCOME TAX RETURNS, 22 HE HAD SOME INCOME IN '98, '99 AND 2000, AND NONE AFTER THAT. 23 AND, OF COURSE, I TOOK ACCOUNT OF THAT INCOME. 24 HE DID SOME CRUISE WORK. I'M NOT -- I DON'T KNOW 25 THAT HE -- THAT THE 31,885 IS FROM THE CRUISE WORK, BUT WHATEVER 1549 THOMAS - DIRECT / DRYOVAGE 1 IT WAS FROM, THAT WAS WHAT WAS ON HIS INCOME TAX RETURNS, AND IF 2 HE EARNED IT, I PUT IT IN. 3 Q. AND THEREBY REDUCED THE AMOUNT OF BACK PAY THAT HE WOULD BE 4 AWARDED. 5 A. SURE. AND SINCE HE HAD TWO YEARS, NOW THREE YEARS, WITH NO 6 INCOME, AND GIVEN THAT HE IS DOING EMERITUS STATUS WORK, I 7 BELIEVE, ON ANTARCTICA, THERE'S NO PROSPECT -- OR THIS ANALYSIS 8 ASSUMES THERE IS NO PROSPECT FOR FUTURE INCOME. 9 Q. HOW DID YOU EVALUATE DR. FORD'S LOST PENSION? 10 A. I MEAN, THE SAME WAY. NUMBER OF YEARS TO RETIREMENT IS THE 11 NUMBER OF LOST YEARS HE LOST FOR THE PENSION FORMULA. AND -- 12 AND THERE WAS -- AND THE ONLY IMPACT OF -- 'CAUSE HE'S -- HE'S 13 KEPT AT 14, STEP 10 -- NO, EXCUSE ME. NO, 15, STEP 10, IT'S 14 ONLY THE COST-OF-LIVING INCREASES WHICH IMPACT HOW MUCH HE LOSES 15 IN PENSION. THERE IS NO STEP INCREASES BUILT IN THERE. 16 Q. HOW DID YOU CALCULATE DR. GRANTZ'S ECONOMIC LOSS? 17 A. AGAIN, THE SAME GENERAL WAY. TWO SPECIFICS WITH RESPECT TO 18 DR. GRANTZ. ONE IS GIVEN HIS BACKGROUND. THE STATE DEPARTMENT 19 HAS CONTRACTED WITH HIM ON, I THINK, IT'S LAW OF THE SEA WORK. 20 THE AMOUNT THEY'RE PAYING HIM IS MINUSCULE. IT'S $8,000 A YEAR, 21 BUT IT MAKES USE OF HIS BACKGROUND AND HIS PROFESSIONAL 22 EXPERTISE, SO -- AND HE ALSO WORKED 40 HOURS A WEEK EMERITUS 23 STATUS, SO HE KEPT UP HIS SKILLS, SO HE STILL IS AN EXPERT IN 24 THAT AREA. IN OTHER WORDS, THESE ARE NOT PEOPLE WHOSE EXPERTISE 25 HAS GONE AWAY. THEY ARE STILL -- 1550 THOMAS - DIRECT / DRYOVAGE 1 THE COURT: OKAY. AGAIN, WHAT WE NEED TO HEAR ABOUT 2 IS NUMBERS, NOT ANALYSIS OF THEIR EXPERTISE OR WHAT THEY'RE 3 DOING OR SO ON, JUST WHAT IS HE EARNING, AND HOW DOES THAT 4 AFFECT YOUR ECONOMIC ANALYSIS. 5 THE WITNESS: WELL, I HAVE TO DO A PROJECTION INTO 6 THE FUTURE, YOUR HONOR. AND ONE, I PRESUME HE WILL CONTINUE TO 7 BE USED BY THE STATE DEPARTMENT. AND, IN FACT, I'M EVEN TOLD 8 THAT THERE IS SOME POSSIBILITY OF A HIGHER CONTRACT. SO 9 WHILE -- SO IF WE'RE TALKING ABOUT THE FUTURE, THAT 10 8,000-DOLLAR PAYMENT IN THE FUTURE MAY BE INCREASED IF THE 11 STATE DEPARTMENT COMES THROUGH. BUT AS ALWAYS, UNTIL THE MONEY 12 COMES THROUGH, THAT'S CONJECTURE. 13 BY MS. DRYOVAGE: 14 Q. AND HOW DID THIS AFFECT HIS PENSION? 15 A. IT'S THE SAME CALCULATION. HE HAS NOTHING WHICH AFFECTS HIS 16 GOVERNMENT PENSION SINCE HIS RIF, SO HE'S LOST ALL THOSE YEARS 17 OF SERVICE AND THE ONES INTO THE FUTURE. AND GIVEN WHAT HE WAS, 18 A LEVEL 2, WHICH IS IN ESSENCE A GS16, THERE IS NO -- NOTHING 19 OTHER THAN COST-OF-LIVING INCREASES THAT I WOULD HAVE CALCULATED 20 FOR HIM ANYWAY. 21 Q. HOW DID YOU CALCULATE DR. WRUCKE'S LOST INCOME? 22 A. OKAY. SORRY. JUST A SECOND. LET ME GET THROUGH IT. 23 WELL, WITH MR. -- DR. WRUCKE, THERE IS THE SAME 24 PICTURE. I PRESUME THE LITTLE MONEY THAT'S THERE IN '96 WAS 25 PART OF -- A SEVERANCE PAYMENT. I DON'T KNOW. IN ANY CASE, IT 1551 THOMAS - DIRECT / DRYOVAGE 1 WAS ON HIS INCOME TAX RETURNS, AND THERE HAS BEEN NO INCOME 2 SINCE THEN. 3 THERE IS A VERY SMALL ANALYSIS ONE COULD RUN ON HIS 4 HELPING HIS WIFE WITH CROCODILE, WHICH IS A SCHOOL LUNCH 5 PROGRAM. HE PUTS A COUPLE HOURS A WEEK IN ON PACKING LUNCHES 6 FOR HER, ET CETERA, BUT THAT -- I CONSIDERED, TO MY ANALYSIS, TO 7 BE A SECOND JOB BECAUSE HE'S WORKING 34 -- 35 TO 40 HOURS A WEEK 8 EMERITUS WITH USGS UNTIL HE SWITCHED OVER TO THE SAME TYPE OF 9 POSITION WITH THE NEVADA BUREAU OF MINES. SO HE'S, IN ESSENCE, 10 WORKING FULL-TIME ONLY ON EMERITUS STATUS. 11 SO THE FACT THAT HE HELPS HIS WIFE WHEN HE'S AROUND 12 WITH HER BUSINESS, IF YOU WANTED TO EVALUATE AT $8 AN HOUR, 13 FINE. BUT THAT'S RIGHT THE KIND OF WORK HE'S DOING, AND IT'S 14 ONLY FOR A FEW HOURS A WEEK. 15 Q. HOW DID THIS AFFECT HIS PENSION? 16 A. AGAIN, EMERITUS STATUS DOES NOTHING FOR YOUR PENSION. SO 17 THE TIME LOST IS FROM THE POINT IN THE RIFT (SIC) IN '95, AND 18 THERE IS NO -- GIVEN THE LEVEL HE WAS AT, WHICH WAS GS14, STEP 19 10, THERE IS NO FURTHER STEP INCREASES PROJECTED FOR HIM. SO 20 HE'S -- IT'S ONLY COST-OF-LIVING INCREASE THAT HE'S MISSING OUT 21 IN TERMS OF CALCULATING THE HIGHEST THREE WAGES -- THE HIGHEST 22 THREE YEARS OF WAGES. 23 Q. AND LASTLY, DR. OVENSHINE, WHY DID YOU PUT HIM IN A SEPARATE 24 CATEGORY? 25 A. WELL, IF YOU JUST LOOK AT THE SHEET, HE LOOKS EXACTLY LIKE 1552 THOMAS - DIRECT / DRYOVAGE 1 ALL -- ALL OF THE OTHER EMERITUS VOLUNTEERS. HE DID -- HE WAS 2 NOT EMERITUS, BUT HIS INCOME IS ZERO. THE DIFFERENCE HERE IS 3 THAT JUST -- IN THE RECORD IS A WRITTEN AGREEMENT FOR PAYMENT OF 4 HIS -- I GUESS IT'S CALLED HIS SES SALARY FOR FOUR YEARS AS -- 5 MR. SALTIEL: OBJECTION, YOUR HONOR. THIS IS AN 6 AREA THAT IS NOT AT ISSUE HERE AND IS NOT PART OF THIS CASE. 7 IT'S BEEN RULED ON BY YOUR HONOR. 8 MS. DRYOVAGE: WHAT? 9 MR. SALTIEL: DR. OVENSHINE'S ALLEGED WRITTEN 10 AGREEMENT IS NOT AT ISSUE IN THIS CASE. 11 MS. DRYOVAGE: THERE'S BEEN NO MOTION ON THAT. THE 12 SUBJECT'S BEEN BROUGHT UP FOR THE FIRST TIME HERE. 13 MR. SALTIEL: NO, THAT -- 14 THE COURT: TO THE EXTENT IT'S A BREACH OF CONTRACT 15 CLAIM, I THINK IT HAD BEEN RULED ON. 16 MR. SALTIEL: YEAH, IT WAS PART OF THE MSPB 17 CHALLENGE WHICH WAS DENIED AT THE MSPB, AND THAT WAS AFFIRMED 18 BY THIS COURT IN OUR MOTION FOR SUMMARY JUDGMENT. 19 MS. DRYOVAGE: THE QUESTION FOR PURPOSES OF THIS 20 WITNESS IS HOW DO YOU CALCULATE HIS BACK WAGES GIVEN THAT HE 21 WAS RIF'ED IN 1995 AND THAT THE WAGES THAT WOULD HAVE BEEN PAID 22 TO HIM WERE BASED ON THE AGREEMENT WITH THE -- DR. EATON. 23 THE WITNESS: WELL, HE CAN TESTIFY WHAT THE ECONOMIC 24 LOSS IS HAD THAT SCENARIO COME INTO -- COME TO PASS. 25 MS. DRYOVAGE: HAD HE NOT BEEN RIF'ED, THAT HE WOULD 1553 THOMAS - DIRECT / DRYOVAGE 1 HAVE GOTTEN THIS AMOUNT OF MONEY. 2 THE COURT: HAD HE NOT BEEN RIF'ED, IF HE WOULD HAVE 3 GOTTEN THAT AMOUNT OF MONEY, THEN WHAT THE LOSS WOULD BE. 4 MS. DRYOVAGE: OKAY. 5 THE WITNESS: WELL, THEN THE DIFFERENCE WITH 6 DR. OVENSHINE IS THAT FOR FIRST -- THERE'S A DIFFERENT WAY OF 7 CALCULATING EARNINGS WITHOUT TERMINATION. I TOOK THE 8 AGREEMENT, AND FOR THE -- FOR THAT 4 YEARS IN THE AGREEMENT, 9 THOSE ARE THE WAGES, EVEN THOUGH HE'S -- HE WAS -- WENT DOWN TO 10 A GS15 STEP 10, HIS SALARY WAS KEPT UP. SO I KEPT IT UP IN MY 11 CALCULATIONS FOR THOSE 4 YEARS, AND THEN I TOOK HIM DOWN TO A 12 GS15, STEP 10, WHICH IS WHAT THE AGREEMENT WAS WITH THEN 13 COST-OF-LIVING INCREASES BUILT ON TOP OF THAT AFTER 1999. 14 SO THE EARNINGS WITHOUT TERMINATION ARE CALCULATED 15 SLIGHTLY DIFFERENTLY. THEY ARE BASED UPON THAT AGREEMENT, 16 WHICH, I GUESS, IS IN SOME DISPUTE, BUT THAT WAS THE -- THAT 17 WAS WHAT I HAD TO WORK WITH TO CALCULATE HIS EARNINGS WITHOUT 18 TERMINATION. 19 AND THEN HIS EARNINGS WITH TERMINATION, HE HAS 20 NOT -- HAS NOT HAD EARNINGS SINCE '95 AS -- THERE WAS SOME KIND 21 OF TERMINATION PACKAGE THERE, 'CAUSE AS YOU SEE IN '95, HIS 22 EARNINGS WITH TERMINATION WERE MORE THAN HIS EARNINGS WOULD 23 HAVE BEEN WITHOUT TERMINATION. SO THERE'S AN OFFSET OF $31,000 24 FOR '95, WHICH IS A NEGATIVE OFFSET AGAINST THE POSITIVE LOSSES 25 THEREAFTER. 1554 THOMAS - DIRECT / DRYOVAGE 1 BY MS. DRYOVAGE: 2 Q. AND HOW DID THIS AFFECT HIS PENSION? 3 A. OH, SAME WAY. A NUMBER OF YEARS LOSS OF LONGEVITY AND NO -- 4 ONLY COST-OF-LIVING INCREASES BECAUSE HE WOULD HAVE MAINTAINED A 5 GS15 STEP 10, IS MY ASSUMPTION. SO THERE'S NO -- HE WOULD HAVE 6 GOTTEN NO STEP INCREASES. 7 Q. OKAY. NOW, IN CONDUCTING YOUR ANALYSIS, YOU MADE A CERTAIN 8 SET OF ASSUMPTIONS. CAN YOU EXPLAIN -- I BELIEVE THIS IS -- 9 THIS IS PLAINTIFFS' EXHIBIT NO. 316, THE COMMENTS AND 10 ASSUMPTIONS DOCUMENT. 11 WAS THIS PART OF YOUR REPORT? 12 A. YES. 13 MS. DRYOVAGE: I WOULD OFFER THIS INTO THE RECORD 14 JUST TO EXPLAIN HOW THE CALCULATIONS WERE DONE AND THE 15 METHODOLOGY USED. 16 MR. SALTIEL: NO OBJECTION. 17 THE COURT: RECEIVED. 18 (PLAINTIFFS' EXHIBIT 316 19 RECEIVED IN EVIDENCE) 20 BY MS. DRYOVAGE: 21 Q. IS THERE -- I HAVE HERE THE CHART OF LOSSES BY INDIVIDUALS 22 THROUGH SEPTEMBER 1ST, 2002. CAN YOU EXPLAIN THIS DOCUMENT? 23 A. SURE. WHAT -- WHAT THAT DOCUMENT IS -- I GUESS THE QUESTION 24 IS -- OH, WHAT YOU -- WHAT YOU HAVE PUT ON THE SCREEN IS MY 25 REVISED DOCUMENT. IT'S NOT WHAT THE BOARD IS. THE REVISIONS 1555 THOMAS - DIRECT / DRYOVAGE 1 ARE -- AS I HAVE SAID, ARE TO MR. ADAM, MS. DAVIS AND MR. LEWIS 2 TO ACCOUNT FOR THEIR PENSIONS THAT WERE NOT CORRECTLY INCLUDED. 3 WHAT I HAVE -- WHAT YOU HAVE THERE -- LET'S JUST TAKE 4 MR. ADAM, OFF OF THE INDIVIDUAL REPORTS, THE PAST ECONOMIC LOSS 5 WAS CALCULATED TO BE 32362. PREJUDGMENT INTEREST APPLYING 6 GOVERNMENT INTEREST RATES TO EACH YEAR IN THE PAST WAS 86362. 7 AND THE FUTURE ECONOMIC LOSS, BOTH WAGES AND PENSION AS WITH THE 8 PAST WAS 455164 FOR A TOTAL ECONOMIC LOSS OF 861889. 9 Q. OKAY. 10 A. SAME SET OF NUMBERS THAT WE'VE DISCUSSED THE METHODOLOGY OF 11 FOR THE OTHER 13 INDIVIDUALS. 12 Q. AND THEN THE SECOND PAGE IS THE IMPACT OF MOVING THE DATE OF 13 FUTURE FROM SEPTEMBER 1ST, 2002, TO JULY 15TH, 2003. CAN YOU 14 EXPLAIN THAT CHART? 15 A. YES. WHAT HAPPENS WHEN YOU MOVE THE DATE OF AN ANALYSIS IS 16 TWO THINGS OR THREE THINGS. NUMBER ONE, YOU MAY PICK UP 17 ADDITIONAL PAY INCREASES, WHICH, INDEED, HAPPENED, 4.18 PERCENT, 18 ON THE GS PAY SCHEDULE IN 2003. YOU DECREASE THE AMOUNT OF 19 DISCOUNT. IN THIS CASE, YOU DECREASE IT FOR 10.5 MONTHS. AND 20 THEN YOU INCREASE THE AMOUNT OF PREJUDGMENT INTEREST BY, AGAIN, 21 ANOTHER 10.5 MONTHS FOR ALL THE PAST LOSSES. 22 SO WHAT I HAVE THERE IS -- AND LET'S SEE. COULD 23 YOU -- LET'S SEE IF I CAN -- WHAT I HAVE THERE IS THE 24 SECOND-FROM-THE-LAST COLUMN, IS THE ADDITIONAL LOSS DUE TO WAGES 25 AND PENSION. THE NEXT-TO-THE-LAST COLUMN IS THE ADDED -- IT 1556 THOMAS - DIRECT / DRYOVAGE 1 SAYS, "PREJ." THAT'S PREJUDGMENT INTEREST. AND THEN I TOTAL 2 THAT TO GET A NEW REVISED TOTAL. BASICALLY THAT ADDITION -- 3 WELL, IF YOU WERE INTERESTED ONLY IN BACK PAY, I -- I THINK THAT 4 ADDITION ALL COMES INTO THE BACK PAY AREA. YES. 5 AND, YOU KNOW, AGAIN, TAKING MR. ADAM AS AN EXAMPLE, 6 THERE'S ABOUT A 20 -- ABOUT A $35,000 INCREASE IN DAMAGES JUST 7 DUE TO THE MOVEMENT OF THE DATE. 8 NOT INCLUDED IS THE FACT THAT GIVEN THAT HE'S LIVED 9 ANOTHER 10.6 MONTHS AND BEEN LOOKING FOR A JOB FOR ANOTHER 10.6 10 MONTHS OR, IN HIS CASE, HAS WORKED FOR ANOTHER 10.5 MONTHS, BOTH 11 HIS WORK LIFE HAS INCREASED SOMEWHAT, AND HIS LIFE EXPECTANCY 12 HAS INCREASED SOMEWHAT. BUT THOSE ARE ADDITIONAL REFINEMENTS 13 THAT I HAVE NOT MADE. BUT IF I MADE THEM, THEY WOULD HAVE 14 INCREASED THE LOSS BY A LITTLE BIT MORE -- NOT MUCH, BUT A 15 LITTLE BIT MORE. THAT WOULD BE THE DIRECTION OF IMPACT. 16 Q. AND THE ANTICIPATED WORK LIFE IS BASED ON WHAT DATA? 17 A. WELL, AS I SAID, FOR ALL EXCEPT THREE OF THEM, IT'S BASED 18 UPON BUREAU OF LABOR STATISTICS TABLES WHICH LOOK AT AGE, SEX 19 AND EDUCATIONAL LEVEL. AND MR. -- I GUESS ADAMI AND MR. LINDH 20 AND MR. LEWIS ALL STATED FAIRLY STRONGLY WHEN THEY WANTED TO 21 RETIRE, SO I USED THAT INFORMATION RATHER THAN THE BS -- BLS 22 TABLES FOR THOSE THREE. 23 MS. DRYOVAGE: OKAY. THANK YOU. I HAVE NO FURTHER 24 QUESTIONS. 25 THE COURT: ALL RIGHT. IT'S 10:30. WE'LL TAKE A 1557 THOMAS - DIRECT / DRYOVAGE 1 BREAK UNTIL 10:40. 2 CROSS-EXAMINATION 3 BY MR. SALTIEL: 4 Q. GOOD MORNING, DR. THOMAS. 5 A. GOOD MORNING. 6 Q. LET ME ASK YOU ABOUT SOME OF YOUR ASSUMPTIONS. NOW, FIRST 7 OF ALL, YOU ASSUMED, DID YOU NOT, THAT THE PLAINTIFFS WOULD HAVE 8 RETAINED THEIR PRE-RIF POSITIONS THROUGH RETIREMENT? 9 A. GIVEN THE INCREASES IN THE GS SCHEDULE, WHICH ARE -- 10 Q. RIGHT. I'M GOING TO GET TO THAT. THAT'S A SEPARATE 11 ASSUMPTION, AS I SEE IT. 12 FIRST ASSUMPTION IS THAT YOU'RE ASSUMING THAT THEY 13 WOULD HAVE REMAINED EMPLOYED FROM THE DATE OF THE RIF THROUGH 14 THE DATE OF RETIREMENT? 15 A. OH, YES. 16 Q. OKAY. AND YOU MADE CERTAIN ASSUMPTIONS ABOUT WHAT THAT 17 RETIREMENT AGE WOULD BE? 18 A. CORRECT. 19 Q. OKAY. AND YOU ALSO ASSUMED THAT THEY WOULD RECEIVE 20 PROMOTIONS AND SALARY INCREASES OVER AND ABOVE THE 21 COST-OF-LIVING INCREASES DURING THAT PERIOD OF TIME; IS THAT 22 RIGHT? 23 A. ONLY IN TERMS OF STEP INCREASES. 24 Q. STEP INCREASES, SO STEP INCREASES OVER AND ABOVE 25 COST-OF-LIVING INCREASES? 1558 THOMAS - CROSS / SALTIEL 1 A. RIGHT. WHATEVER WAS IN THE GS SCHEDULE IS WHAT I USED. 2 Q. AND YOU USED THE EARNINGS THAT WERE PROVIDED BY THE 3 PLAINTIFFS TO CALCULATE WHAT THE OFFSET WAS. 4 A. YES, THAT WHICH WAS IN THEIR INCOME TAX RETURNS. 5 Q. AND YOU ALSO ASSUMED THAT PREJUDGMENT INTEREST IS PROPERLY 6 AWARDED IN THIS SITUATION, RIGHT? 7 A. NO, I MADE A CALCULATION OF WHAT IT WOULD BE. IT'S NOT MY 8 DETERMINATION WHETHER IT'S PROPER THAT IT WOULD BE AWARDED OR 9 NOT. 10 Q. OKAY. NOW, WITH RESPECT TO YOUR ASSUMPTION THAT ALL THE 11 PLAINTIFFS WOULD HAVE REMAINED IN THEIR POSITIONS FROM THE DATE 12 OF THE RIF THROUGH THE DATE OF RETIREMENT, WERE YOU AWARE OF THE 13 USGS'S FINANCIAL CONSTRAINTS IN OR ABOUT 1995 THAT LED TO THE 14 RIF? 15 A. YES, IN GENERAL. 16 Q. AND WOULD IT BE FAIR TO SAY THAT GIVEN THOSE FINANCIAL 17 CONSTRAINTS, THE LIKELIHOOD THAT THEY WOULD ALL REMAIN IN THOSE 18 POSITIONS THROUGH THE DATE OF RETIREMENT WAS DECREASED? 19 A. IF YOU PUT IT AT THAT LEVEL OF GENERALITY, I WOULD HAVE TO 20 SAY YES. 21 Q. NOW, AND YOUR ASSUMPTION WITH RESPECT TO CONTINUOUS 22 EMPLOYMENT THROUGH THE DATE OF RETIREMENT ALSO APPLIED TO ALLAN 23 LINDH; IS THAT RIGHT? 24 A. YES. 25 Q. WERE YOU AWARE THAT DR. LINDH TOOK 848 HOURS OF LEAVE 1559 THOMAS - CROSS / SALTIEL 1 WITHOUT PAY OVER THE YEARS 1996 THROUGH 2002 FOR REASONS THAT 2 WERE UNRELATED TO HIS CLAIMS IN THIS CASE? 3 A. I WOULD BE AWARE OF THAT ONLY TO THE EXTENT THAT THE NUMBERS 4 SHOWED UP IN HIS INCOME TAX RETURNS AND THAT WHAT HE WAS -- HE 5 WAS PAID. 6 Q. SO YOUR CALCULATIONS DIDN'T ADJUST FOR THAT FACT, THOUGH, 7 DID IT? 8 A. I DON'T BELIEVE SO. 9 Q. WERE YOU AWARE WITH RESPECT TO DR. LINDH THAT AFTER THE 10 RIF -- STRIKE THAT. 11 YOU ARE AWARE THAT DR. LINDH WAS REASSIGNED TO A 12 POSITION IN THE RIF, GS12 POSITION I BELIEVE IT WAS. 13 A. YES. 14 Q. ARE YOU AWARE THAT FOR TWO YEARS, HE MAINTAINED THE GRADE OF 15 GS14, OR WHATEVER GRADE HE WAS IN AT THE TIME OF THE RIF? 16 A. THE -- HIS ACTUAL PAY WOULD SEEM TO HAVE BEEN BASED UPON A 17 12, WHATEVER THEY -- WHATEVER THEY CALLED HIM, BUT IT MAKES 18 NO -- OKAY, BUT -- NO, I'M NOT AWARE OF IT. BUT IT MAKES NO 19 DIFFERENCE BECAUSE WHAT HE WAS PAID -- IF HE WAS PAID AS GS14, 20 THEN THAT'S WHAT SHOWS UP ON HIS INCOME TAX RETURNS. IF HE WAS 21 PAID AS A 12, THAT'S WHAT SHOWS UP ON HIS INCOME TAX RETURNS. 22 Q. NOW, WITH RESPECT TO YOUR ASSUMPTION REGARDING RETIREMENT 23 AGES, IN SOME CASES, YOU USED THE NUMBERS -- THE AGES -- 24 ANTICIPATED DATE OF RETIREMENT THAT THE PLAINTIFFS GAVE YOU; IS 25 THAT RIGHT? 1560 THOMAS - CROSS / SALTIEL 1 A. THAT'S CORRECT. 2 Q. IN FACT -- 3 A. THREE CASES. 4 Q. -- I THINK THERE'S FOUR CASES, IS (SIC) THERE NOT? ISN'T IT 5 MR. ADAMI, MS. DAVIS, DR. LEWIS AND DR. LINDH? 6 A. YES, YOU'RE RIGHT. 7 Q. SO THERE'S FOUR? 8 A. THERE'S FOUR. 9 Q. AND IN AT LEAST SOME OF THESE, THE RETIREMENT AGE THAT WAS 10 PROVIDED IS -- EXCEEDS THE WORK-LIFE EXPECTANCY BASED ON THE 11 BUREAU OF LABOR STATISTICS TABLES; ISN'T THAT RIGHT? 12 A. I BELIEVE THAT'S ONLY IN THE CASE OF MR. LEWIS. AND, AGAIN, 13 THOSE ARE AVERAGE NUMBERS, AND YOU EXPECT PEOPLE TO BE ABOVE AND 14 BELOW IT. BUT -- IN ANSWER TO YOUR SPECIFIC QUESTION, I THINK 15 MR. LEWIS SAID HE WOULD RETIRE AT 70 AND THAT HIS BLS NUMBER WAS 16 SOMETHING LIKE 68 OR 67. SO I DON'T BELIEVE THAT'S TRUE OF THE 17 OTHERS. 18 I KNOW FOR MR. ADAMI, IT WAS LESS. I THINK FOR 19 MS. ADAMS (SIC), IT WAS LESS, AND I FORGET -- I THINK ALSO FOR 20 MR. LINDH, BUT I'M NOT SURE. 21 Q. THAT WAS MS. DAVIS. 22 A. MS. DAVIS. WHAT DID I SAY? 23 Q. YOU SAID "ADAMS"? 24 A. MISS DAVIS AT 65, I THINK, IS LESS THAN WHAT THE BSL NUMBER 25 WOULD BE. 1561 THOMAS - CROSS / SALTIEL 1 Q. IS IT FAIR TO SAY THAT WITH RESPECT TO DR. LEWIS, USING 2 WORK-LIFE EXPECTANCY ABOVE THE AVERAGE RESULTS IN INCREASED 3 LOSS? 4 A. OH, YES, DEFINITELY. 5 Q. YOU MENTIONED IN YOUR DIRECT EXAMINATION THAT NOBODY'S AT 6 THE AVERAGE, THAT THE AVERAGE IS EXACTLY THAT, SOME PEOPLE ARE 7 ABOVE AND SOME PEOPLE ARE BELOW? 8 A. RIGHT. 9 Q. BUT, IN FACT, SOME OF THESE PLAINTIFFS ARE AT THE AVERAGE; 10 ISN'T THAT RIGHT? 11 A. WELL, I HAD TO USE THE AVERAGE -- THE BLS NUMBERS FOR THE 12 PEOPLE WHO DID NOT GIVE ME A DATE OF WHEN THEY WOULD RETIRE. 13 THAT'S THE ONLY -- THAT'S THE ONLY SOURCE. IT'S A STANDARD 14 ECONOMIC SOURCE. I USE IT ALL THE TIME. IT'S THE DEFAULT 15 SOURCE. 16 IF THE PLAINTIFF CHOOSES TO STATE HE HAD PLANS THEN 17 I -- THEN THE GENERAL WAY OF DOING IT IS TO USE THOSE PLANS. 18 Q. AND SOME OF THE PLAINTIFFS ACTUALLY STATED THEY HAD PLANS 19 THAT MATCHED THE BLS TABLES FOR -- 20 A. THAT'S RIGHT. YES. 21 Q. AND THAT INCLUDED DR. GRANTZ, DR. IYER, MR. MANN, WHO'S NO 22 LONGER IN THIS CASE? 23 A. I'D HAVE TO GO BACK AND READ ABOUT IT. I PRESUME YOU'RE 24 READING FROM MY COMMENTS IN SOME -- I POINT THAT OUT THERE. 25 Q. OKAY. NOW, WITH RESPECT TO THE INCREASES THAT YOU ASSUMED, 1562 THOMAS - CROSS / SALTIEL 1 THE STEP INCREASES AND THE COST-OF-LIVING INCREASES, OR THE STEP 2 INCREASES OVER COST-OF-LIVING, THAT'S WHAT YOU ASSUMED; IS THAT 3 RIGHT? 4 A. THAT'S -- NOT AN ASSUMPTION. THAT'S A TABLE. THAT'S DATA. 5 Q. WELL, YOU'RE ASSUMING THAT THOSE STEP INCREASES WOULD HAPPEN 6 AUTOMATICALLY. 7 A. THAT IS WHAT THE GOVERNMENT REGULATIONS ARE, ABSENT ACTION 8 BY A PERSONNEL OFFICER. IN OTHER WORDS, THEY ARE AUTOMATIC, BUT 9 THEY'RE -- THIS CAN BE CANCELED OR STOPPED, AS HAS HAPPENED WITH 10 SOME OF THE PLAINTIFFS. 11 Q. WELL, I ASKED YOU EARLIER ABOUT THE FINANCIAL CONSTRAINTS 12 THAT THE USGS WAS UNDER IN 1995. ISN'T IT FAIR TO SAY THAT THE 13 LIKELIHOOD THAT THESE INCREASES WOULD OCCUR AUTOMATICALLY IS 14 DECREASED BY THOSE FINANCIAL CIRCUMSTANCES? 15 A. I AM NOT SURE. MY UNDERSTANDING IS THAT -- THAT, YOU KNOW, 16 YOU WOULD HAVE TO DO IT ON A MORE GOVERNMENT-WIDE BASIS. I 17 MEAN, THERE IS A -- THIS -- UNDER STEP FIVE, YOU GET AN INCREASE 18 EVERY YEAR. I DO NOT BELIEVE THAT INDIVIDUAL AGENCIES HAVE THE 19 PREROGATIVE TO INCREASE FOR EVERYBODY THAT -- GOING FROM STEP 20 TWO TO THREE NOW TAKES FIVE YEARS RATHER THAN ONE YEAR. I AM 21 NOT POSITIVE. 22 MY UNDERSTANDING OF THE GOVERNMENT REGULATIONS IS 23 THAT THEY COULDN'T DO THAT JUST FOR USGS. THEY'D HAVE TO DO IT 24 IN A NEGOTIATION AND PROBABLY CIVIL SERVICE ALIKE. 25 Q. ARE YOU AWARE THAT SOME OF THE PLAINTIFFS CLAIMED RIGHTS TO 1563 THOMAS - CROSS / SALTIEL 1 THE SAME POSITION IN THE RIF? 2 A. NO. 3 Q. SO YOU DIDN'T TAKE THAT INTO CONSIDERATION IN DOING YOUR 4 ANALYSIS, DID YOU? 5 A. I HAVE -- I HAD NO INFORMATION ON WHAT SPECIFIC POSITION 6 THEY CLAIMED. 7 Q. WITH RESPECT TO DR. LEWIS, YOU DID NOT TAKE INTO 8 CONSIDERATION THAT WHEN HE MOVED TO FRESNO, HE HAD A LOWER COST 9 OF LIVING, DID YOU? 10 A. NO. I DID NOT. 11 Q. NOW, WITH RESPECT TO YOUR ASSUMPTION -- YOUR CALCULATION OF 12 THE OFFSET EARNINGS, YOU DID NOT CONSIDER ANY ALTERNATIVE OFFSET 13 EARNINGS SCENARIOS, DID YOU? 14 A. I CONSIDERED THEM. BUT AFTER LOOKING AT -- THE INDUSTRY 15 ANALYSIS, AND MY OWN UNDERSTANDING OF THE SITUATION, I -- I 16 RE -- I REJECTED STRONGLY IN MOST OF THE CASES AND DID NOT SEE 17 AN ALTERNATIVE SCENARIO FOR WHICH THERE WAS ANY VALID IN A FEW 18 OF THE OTHERS. SO I WENT WITH, YOU KNOW, WHAT OCCURRED, THAT 19 THESE PEOPLE WERE LEADERS IN THEIR FIELD, ET CETERA, ET CETERA, 20 AND WERE NOT SLACKERS AND WOULD -- THEREFORE, DID THE BEST THAT 21 THEY WERE ABLE TO DO UNDER THE CIRCUMSTANCES. 22 Q. AND, IN FACT, YOU TESTIFIED THAT NORMALLY YOU WOULD ASSUME A 23 CERTAIN AMOUNT OF TIME THAT IT WOULD TAKE TO FIND ALTERNATIVE 24 EMPLOYMENT AND THEN A CERTAIN AMOUNT OF TIME THAT IT WOULD TAKE 25 TO GET BACK TO THE SAME POINT AS FAR AS SALARY; IS THAT RIGHT? 1564 THOMAS - CROSS / SALTIEL 1 A. THAT'S WHAT YOU HAVE NO DATA. YOU KNOW, AGAIN, IF 2 THERE'S -- A PERSON WAS EARNING 70, HE GETS RE-EMPLOYED AT 50, 3 THAT'S THE ONLY INFORMATION I HAVE. THEN GENERALLY I WOULD 4 ASSUME THAT HE WOULD GET BACK UP TO THAT 70 LEVEL OVER A CERTAIN 5 PERIOD OF TIME. 6 BUT THAT'S IN THE ABSENCE OF INFORMATION, WHICH IS 7 WHAT IS UNIQUE ABOUT THIS CASE, 'CAUSE YOU HAVE THE INFORMATION. 8 YOU HAVE SEVEN YEARS' WORTH OF INFORMATION. 9 Q. AND WITH RESPECT TO DR. WRUCKE, YOU USED THE EARNINGS DATA 10 THAT WAS PROVIDED BY DR. WRUCKE; IS THAT RIGHT? 11 A. YEAH, I USED -- I, YOU KNOW -- IN MOST CASES, I -- YEAH, IN 12 HIS CASE TOO, I REMEMBER NOW. IT WAS INCOME TAX RETURNS. 13 Q. OKAY. WERE YOU AWARE THAT DR. WRUCKE WAS OFFERED A 14 REASSIGNMENT TO A GS13 POSITION AT THE TIME OF THE RIF AND 15 DECLINED IT? 16 A. NO. 17 Q. SO YOU DIDN'T TAKE THAT INTO CONSIDERATION. 18 A. NO, I DID NOT. 19 Q. AND WERE YOU AWARE -- WELL -- OKAY. FINE. 20 AND I ASSUME THAT IF YOU DID TAKE THAT INTO 21 CONSIDERATION, THE -- HIS ECONOMIC LOSS WOULD HAVE BEEN LOWER? 22 A. WELL, IF -- IF, IN FACT, THE -- YOU KNOW, I WOULD NEED TO 23 KNOW WHY HE DIDN'T ACCEPT IT AND IF IT FELL WITHIN THE RANGE OF 24 THINGS THAT ONE SHOULD DO TO MITIGATE. CLEARLY, IF I USED HIS 25 GS13 EARNINGS AND EARNINGS WITH TERMINATION, THAT WOULD REDUCE 1565 THOMAS - CROSS / SALTIEL 1 HIS LOSS. YES, SIR. 2 Q. AND WITH RESPECT TO PENSION LOSS, ISN'T IT TRUE THAT A 3 COST-OF-LIVING INCREASE IS BUILT INTO THE ANNUITIES THAT THE 4 INDIVIDUALS WHO ARE RECEIVING A RETIREMENT ANNUITIES (SIC) GET? 5 A. THAT'S -- SURE. THAT'S WHY I USE A 2.9 PERCENT NET DISCOUNT 6 RATE ON PENSIONS ONCE YOU'RE RECEIVING THEM. I TAKE ACCOUNT OF 7 THAT FACT. 8 MR. SALTIEL: THANK YOU. I HAVE NO FURTHER 9 QUESTIONS. 10 (PAUSE IN THE PROCEEDINGS.) 11 THE COURT: GO AHEAD. 12 (PAUSE IN THE PROCEEDINGS.) 13 REDIRECT EXAMINATION 14 BY MS. DRYOVAGE: 15 Q. YOU -- 16 THE COURT: GO AHEAD. 17 BY MS. DRYOVAGE: 18 Q. NOW, WITH RESPECT TO DR. LEWIS'S WORK LIFE, WAS THERE A 19 BASIS FOR EVALUATING HIS INTENTION TO RETIRE AT AGE 70 THAT -- 20 THAT ACCOUNTED FOR HIM HAVING A LONGER WORK LIFE THAN THE BLS 21 NUMBERS WOULD HAVE ASSUMED TAKING AVERAGE? 22 A. WELL, I'M NOT GOING TO TRY READ DR. LEWIS'S MIND. HE STATED 23 THAT HE FELT HE WOULD HAVE TO WORK TILL AGE 70, SO I USED THAT. 24 I COULD HAVE USED THE -- I THINK IT WAS AGE 68 OUT OF THE BLS 25 NUMBERS. I'M NOT -- DON'T KNOW ANYMORE. I HAVE IT IN MY NOTES 1566 THOMAS - REDIRECT / DRYOVAGE 1 SOMEPLACE. AND IT WOULD HAVE MADE A SLIGHT DIFFERENCE, BUT A 2 VERY SMALL DIFFERENCE. 3 I JUST -- YOU KNOW, AGAIN, MY BELIEF IS THAT YOU USE 4 ACTUAL DATE WHEN IT'S AVAILABLE OR SPECIFIC DATA TO THE CASE 5 WHEN IT'S AVAILABLE, AND YOU ONLY USE THINGS LIKE BLS WORK LIFE 6 WHEN YOU HAVE -- THAT'S YOUR DEFAULT POSITION. WHEN YOU HAVE NO 7 BETTER INFORMATION, YOU FALL BACK ON THAT. 8 Q. YOU WERE ASKED ON CROSS-EXAMINATION ABOUT WHETHER OR NOT THE 9 PLAINTIFFS WERE SEEKING SOME OF THE SAME POSITIONS, WOULD THE 10 NUMBER OF AVAILABLE POSITIONS HAVE AN EFFECT ON YOUR ANALYSIS IN 11 TERMS OF MITIGATION POSSIBILITIES FOR THE PLAINTIFFS? 12 A. NOT IN TERMS -- WELL, OKAY. THE GENERAL VIEW OF MITIGATION 13 WOULD BE THE ABILITY OF THE PLAINTIFFS TO FIND WORK OUTSIDE OF 14 USGS. I MEAN, THAT'S WHAT THE MITIGATION GENERALLY LOOKS AT. 15 A CERTAIN SMALL NUMBER, MR. CALZIA AND MR. LINDH, 16 FOUND JOBS BACK INSIDE OF USGS, SO THAT THAT FACT, THAT THEY 17 WERE COMPETING FOR THE SAME POSITION, HAS NO IMPACT UPON -- OR 18 LITTLE IMPACT UPON -- NO, NO IMPACT ON THE EARNINGS WITH 19 TERMINATION. 20 NOW, IT MAY HAVE SOME IMPACT UPON THE EARNINGS 21 WITHOUT TERMINATION. YOU KNOW, MAYBE, GIVEN THE CIRCUMSTANCES, 22 YOU WANT TO DO AN ANALYSIS WHICH COMES UP WITH THE -- THE CHANCE 23 OF THEM STAYING WITH USGS IS ONLY 90 PERCENT OR ONLY 95 PERCENT 24 BECAUSE OUT OF THE 14, MAYBE ONE WOULD HAVE BEEN RIF'ED ANYWAY 25 WITHOUT THE PROBLEMS THAT THIS CASE IS DEALING WITH. 1567 THOMAS - REDIRECT / DRYOVAGE 1 BUT THAT'S -- THAT'S A DIFFERENT ANALYSIS AND ONE FOR 2 WHICH I WAS PROVIDED NO -- NO DATA. ALL I CAN SAY IS THAT IT'S 3 A POSSIBILITY, BUT IT'S DOESN'T SEEM TO BE -- THAT'S A 4 COLLECTIVE POSSIBILITY. IT DOES NOT ALTER ANY OF THE 5 INDIVIDUALS, AND YOU'D HAVE TO DO A SELECTIVE ANALYSIS TO COME 6 UP WITH SOME PERCENT OF REDUCTION, AND THAT'S -- THE DATA'S NOT 7 AVAILABLE AS FAR AS I KNOW TO ME TO DO THAT KIND OF ANALYSIS. 8 BUT -- BUT THAT'S THE ONLY PLACE IT WOULD HAVE AN IMPACT. 9 Q. OKAY. EACH OF THESE PEOPLE HAD JOBS AT THE USGS PRIOR TO 10 THE RIF. YOUR ANALYSIS WAS BASED ON THE ASSUMPTION THAT THEY 11 WERE SEEKING TO GET THEIR JOBS BACK AS OPPOSED TO GETTING BACK 12 SOME OTHER LOWER JOB? 13 MR. SALTIEL: OBJECTION, LEADING QUESTION. 14 THE COURT: OVERRULED. 15 THE WITNESS: I'M SORRY. I REALLY DON'T -- I REALLY 16 DON'T UNDERSTAND THE QUESTION. COULD YOU -- 17 BY MS. DRYOVAGE: 18 Q. OKAY. SO AS AN ECONOMIST, YOU CAN'T MAKE AN ANALYSIS BASED 19 ON WHAT THE CHOICES WERE FOR THESE INDIVIDUALS GIVEN -- ASSUMING 20 THAT THERE WAS NO DISCRIMINATION AT THE USGS, YOU CAN'T FORECAST 21 WHAT DIFFERENCE THAT WOULD HAVE MADE IN ANY PARTICULAR CASE, CAN 22 YOU? 23 A. NO. I MIGHT BE ABLE TO DO IT IN AN AGGREGATE BASIS, BUT 24 THAT'S AN ENTIRELY DIFFERENT ANALYSIS THAN I WAS -- WHAT I WAS 25 ASKED TO DO OR, AS FAR AS I CAN TELL, HAS BEEN DONE IN THAT CASE 1568 THOMAS - REDIRECT / DRYOVAGE 1 AND WE WOULD REQUIRE DATA ON ALL THE PEOPLE WHO ARE RIF'ED AND 2 WHAT HAPPENED TO THEM. 3 YOU KNOW, IT'S AN ENTIRELY DIFFERENT STUDY REQUIRING 4 LOTS OF DATA. BUT, TECHNICALLY, I THINK IT COULD BE DONE. I 5 THINK IT'S A STATISTICAL ANALYSIS THAT COULD BE DONE. I JUST, 6 A, HAVEN'T DONE IT AND, B, I HAVEN'T SEEN THE DATA WHICH WOULD 7 ALLOW ANYBODY TO DO IT. 8 MS. DRYOVAGE: THANK YOU. I HAVE NO FURTHER 9 QUESTIONS. 10 MR. SALTIEL: NOTHING FURTHER, YOUR HONOR. 11 THE COURT: ALL RIGHT. YOU'RE EXCUSED. YOU MAY 12 STEP DOWN. 13 WITH RESPECT TO CARTER AND WORL, THE INFORMATION 14 THAT'S IN THE DECLARATION THAT WASN'T ALLUDED TO IN PLAINTIFFS' 15 MOTION OR OBJECTION TO THEIR WRITTEN TESTIMONY IS THAT ONE 16 RESIDES IN ANCHORAGE, ALASKA, AND ONE RESIDES IN WYOMING. AND 17 I TAKE IT THOSE ARE OUTSIDE OF THE SUBPOENA POWER OF THIS 18 DISTRICT. THEY'RE NOT FEDERAL EMPLOYEES, SO THEY CAN'T BE 19 ORDERED TO COME BY THEIR EMPLOYER. SO THAT, I TAKE IT, IS THE 20 BASIS FOR THEIR UNAVAILABILITY. 21 MR. SALTIEL: THAT'S CORRECT, YOUR HONOR. THAT WAS 22 THE PURPOSE OF THE DECLARATION. 23 THE COURT: SO THAT WOULD SEEM TO BE APPROPRIATE. 24 MS. DRYOVAGE: THEN WE WOULD REQUEST THAT WE BE 25 PERMITTED TO SUBMIT PORTIONS OF THEIR TESTIMONY IN SUPPORT OF 1569 THOMAS - REDIRECT / DRYOVAGE 1 OUR CASE. 2 THE COURT: ALL RIGHT. 3 OH. PORTIONS OF WHAT? 4 MS. DRYOVAGE: OF THEIR TESTIMONY IN SUPPORT OF OUR 5 CASE IF THEY'RE UNAVAILABLE. WE DIDN'T KNOW THAT THEY WERE 6 UNAVAILABLE BASED ON THE DECLARATION BECAUSE MANY PEOPLE HAVE 7 BEEN COMING INTO COURT FROM OTHER STATES. 8 THE COURT: WELL, YOU CAN SUBMIT THE PORTIONS OF 9 THEIR DECLARATIONS THAT YOU WOULD RELY UPON AS YOUR 10 CROSS-EXAMINATION OF THE PORTIONS THAT ARE SUBMITTED BY THE 11 GOVERNMENT. 12 MS. DRYOVAGE: OH. 13 THE COURT: IN THAT CASE, I'LL RETURN THE 14 GOVERNMENT'S DECLARATION OR -- WELL, I WON'T RETURN IT, BUT 15 WHAT I'D LIKE TO GET, THEN, IS A FULL SET THAT INCLUDES BOTH 16 SIDES' DESIGNATIONS IN ORDER, RATHER THAN HAVING TO FLIP BACK 17 AND FORTH BETWEEN THEM. SO IF YOU WOULD TAKE HERS, ADD THEM TO 18 YOURS AND RESUBMIT THEM, PLEASE. 19 MR. SALTIEL: I'LL DO THAT, YOUR HONOR. 20 DEFENDANT WOULD CALL OUR NEXT WITNESS. 21 THE COURT: YEAH. 22 MR. SALTIEL: GERALD UDINSKY. 23 (PAUSE IN THE PROCEEDINGS.) 24 THE CLERK: PLEASE STEP UP TO THE WITNESS STAND AND 25 RAISE YOUR HAND. 1570 THOMAS - REDIRECT / DRYOVAGE 1 JERALD UDINSKY, 2 CALLED AS A WITNESS FOR THE DEFENDANT, HAVING BEEN DULY SWORN, 3 TESTIFIED AS FOLLOWS: 4 THE CLERK: PLEASE BE SEATED AND STATE YOUR FULL 5 NAME, SPELLING YOUR LAST NAME FOR THE RECORD. 6 THE WITNESS: JERALD UDINSKY. THAT'S J-E-R-A-L-D 7 U-D-I-N-S-K-Y. 8 DIRECT EXAMINATION 9 BY MR. SALTIEL: 10 Q. DR. UDINSKY, WHAT IS YOUR OCCUPATION? 11 A. I'M A FINANCIAL AND REHABILITATION ECONOMIST. 12 Q. COULD YOU DEFINE, PLEASE, WHAT A REHABILITATION ECONOMIST 13 IS? 14 A. YES. THAT'S A ECONOMIST, WHO SPECIALIZED IN THE AREA OF 15 LABOR ECONOMICS, IN PARTICULAR THE ECONOMICS OF -- OF WORKERS 16 WHO'VE LOST THEIR JOBS, EITHER THROUGH INJURY OR DISCHARGE, AND 17 THE SUBSEQUENT REEMPLOYMENT. 18 Q. AND COULD YOU PLEASE DESCRIBE YOUR EDUCATIONAL BACKGROUND? 19 A. YES. I HAVE A -- 20 THE COURT: WELL, AGAIN, WHY DON'T WE JUST SUBMIT 21 HIS RESUME -- SOLICIT MY OBJECTION HIS BEING RECEIVED AS AN 22 EXPERT. 23 MS. DRYOVAGE: THAT'S CORRECT. WE DON'T OBJECT. 24 THE COURT: ALL RIGHT. NOW, IF YOU -- I GATHER HE'S 25 BEING PROFFERED BOTH FOR FINANCIAL AND REHABILITATION. 1571 UDINSKY - DIRECT / SALTIEL 1 MR. SALTIEL: HE'S BEING OFFERED AS A REHABILITATION 2 ECONOMIST. I WAS GOING TO ASK HIM TO DESCRIBE WHAT THAT IS, 3 AND I THINK HE DID. 4 YES, THAT'S CORRECT. 5 THE COURT: OKAY. 6 BY MR. SALTIEL: 7 Q. DR. UDINSKY, WHAT WERE YOU ASKED TO DO IN CONNECTION WITH 8 THIS CASE? 9 A. I WAS ASKED TO CALCULATE THE APPROPRIATE ECONOMIC LOSS FOR 10 THE PLAINTIFFS WHO LOST THEIR JOB AT THE USGS. 11 Q. AND IN WHAT -- WERE YOU ASKED TO DO THAT CALCULATION BASED 12 ON ANY PARTICULAR SET OF PROCEDURES OR PRINCIPLES? 13 A. WELL, YES. I WAS ASKED TO CALCULATE THE ECONOMIC LOSS BASED 14 UPON THE PRINCIPLES IN MY PROFESSION OF REHABILITATION ECONOMICS 15 AND BASED UPON MY EXPERIENCE IN CALCULATING ECONOMIC LOSS IN 16 CASES OF EMPLOYMENT DISCHARGE. 17 Q. AND WHAT INFORMATION OR MATERIALS DID YOU RELY ON IN 18 EVALUATING THE PLAINTIFFS' ECONOMIC LOSS? 19 A. I HAD A LARGE NUMBER OF DOCUMENTS, AND THESE WERE DETAILED 20 IN MY REPORT. I HAD THE DEPOSITIONS OF ALL OF THE PLAINTIFFS, 21 AS WELL AS VARIOUS EMPLOYMENT FILES AND RECORDS FROM THEM. I 22 HAD WHATEVER DOCUMENTS WERE PRODUCED IN TERMS OF JOB SEARCH 23 AFTER LEAVING THE GOVERNMENT SERVICE OR REMAINING WITH THE 24 GOVERNMENT ON EMERITUS. 25 I HAD THE EXPERT REPORT OF DR. TOM THOMAS. I HAD 1572 UDINSKY - DIRECT / SALTIEL 1 VARIOUS TAX RETURNS AND W2 STATEMENTS. I HAD VARIOUS STATEMENTS 2 REGARDING THE -- WHAT'S CALLED THE MSPB STATEMENTS OF THE 3 PLAINTIFFS. I HAD VARIOUS -- I HAD A MARCH 9, 1995, MEMORANDUM 4 FROM JOHN R. FILSON, ACTING CHIEF GEOLOGIST, REGARDING THE 5 GENERAL NOTICE OF WORKFORCE ADJUSTMENT AND THEN VARIOUS FILE 6 RECORDS THAT WERE ATTACHED TO THE DEPOSITIONS OF THE PLAINTIFFS. 7 Q. DID YOU RELY ON ANY -- ANY LABOR MARKET RESEARCH? 8 A. YES. I WORKED IN CONJUNCTION WITH DR. CARR, WHO ALSO WORKED 9 WITH MICHELLE BOUYAY (PHONETIC) AND JILL MCCARTHY WITH RESPECT 10 TO THE SALARIES OF THE INDIVIDUALS INVOLVED AND THE REASONABLE 11 OR APPROPRIATE THINGS THAT A PERSON WHO IS A GEOLOGIST, EITHER 12 MASTER'S DEGREE OR PH.D. -- THE APPROPRIATE THINGS WHICH THESE 13 INDIVIDUALS WOULD DO IN SEEKING ALTERNATIVE EMPLOYMENT. 14 Q. AND IS THIS THE TYPE OF INFORMATION THAT IS REASONABLY 15 RELIED UPON BY EXPERTS IN YOUR FIELD? 16 A. YES, SIR. WE NORMALLY CONDUCT WHAT ARE CALLED LABOR MARKET 17 SURVEYS OF THIS NATURE IN ORDER TO ASSESS THE REASONABLE 18 MITIGATION EARNING CAPACITY FOR INDIVIDUALS IN THIS SITUATION. 19 Q. AND DID YOU -- DID YOU HEAR DR. THOMAS TESTIFY TODAY? 20 A. YES, SIR. 21 Q. AND DID YOU READ DR. THOMAS'S REPORT? 22 A. YES, SIR. 23 Q. DO YOU HAVE ANY CRITICISMS OF DR. THOMAS'S APPROACH IN 24 CALCULATING THE PLAINTIFFS' ECONOMIC LOSS? 25 MS. DRYOVAGE: OBJECTION. THIS IS NOT IN HIS 1573 UDINSKY - DIRECT / SALTIEL 1 REPORT. HE WAS NOT CALLED AS REBUTTAL. 2 MR. SALTIEL: IT IS ACTUALLY IN HIS REPORT. THERE 3 IS A SECTION IN DR. UDINSKY'S REPORT DEALING WITH DR. THOMAS'S 4 REPORT. 5 MS. DRYOVAGE: WITHDRAW THE OBJECTION. 6 THE COURT: ALL RIGHT. 7 BY MR. SALTIEL: 8 Q. THE QUESTION IS, DO YOU HAVE ANY CRITICISMS OF DR. THOMAS'S 9 APPROACH? 10 A. WELL, THERE ARE TWO ASPECTS OF IT. DR. THOMAS IS A VERY 11 WELL-QUALIFIED ECONOMIST, AND IT'S NOT THE ACTUAL CALCULATIONS 12 THAT I'M DEALING WITH. IT'S, PERHAPS, THAT HE MAY NOT HAVE BEEN 13 PROVIDED WITH SUFFICIENT DATA TO MAKE A COMPLETE ANALYSIS. 14 IN PARTICULAR, THE FIRST THING THAT, PERHAPS, HE WAS 15 UNABLE TO ANALYZE WAS THE FACT THAT THE REDUCTION IN FORCE 16 OCCURRED BECAUSE OF SUBSTANTIAL AND SEVERE BUDGET RESTRICTIONS 17 AND THAT THE MARCH 9, 1995, MEMORANDUM FROM JOHN R. FILSON 18 SPECIFIED A FREEZE ON PERMANENT PROMOTIONS EFFECTIVE 19 IMMEDIATELY. FOR EXAMPLE -- AND THIS WAS IN MY REPORT ON 20 PAGE 6, A QUOTE FROM THAT. 21 SO -- IN OTHER WORDS, YOU HAD A SITUATION WHERE YOU 22 HAD A GOVERNMENT BUREAU THAT HAD A SUBSTANTIAL REDUCTION IN 23 BUDGET, AND THERE HAD TO BE REDUCTION SOMEWHERE. THAT'S MY 24 CONCLUSION BASED UPON WHAT I'M OBSERVING. AND BASED ON THAT, IT 25 HAS AN IMPACT ON THE ECONOMIC ANALYSIS. 1574 UDINSKY - DIRECT / SALTIEL 1 Q. WHAT IS THE IMPACT IT HAS ON THE ECONOMIC ANALYSIS? 2 A. WELL, BASED UPON MY EXPERIENCE, THERE ARE TWO THINGS THAT 3 HAPPEN. NUMBER ONE, THERE ARE LAYOFFS, UNFORTUNATELY, AND ALSO 4 THERE ARE REDUCTIONS IN THE EXTENT TO WHICH EXPECTED WAGE 5 INCREASES CAN OCCUR, EITHER NORMAL STEP INCREASES OR GRADE 6 INCREASES. AND THESE ARE FREQUENTLY TAKEN AS REDUCTIONS IN 7 ORDER TO PREVENT FURTHER ACTUAL JOB CUTS. 8 SO THESE TWO TYPES OF INCREASES TEND TO BE REDUCED, 9 THAT IS, STEP AND GRADE INCREASES, AS WELL AS THERE TENDS TO BE 10 REDUCTIONS IN FORCE IN THESE BUDGETARY SITUATIONS. 11 Q. IN PERFORMING YOUR ANALYSIS, DID YOU ASSUME ANY WAGE 12 INFLATION? 13 A. I DID, YES. 14 Q. WHAT WAS THAT BASED ON? 15 A. WELL, WHAT I DID WAS TO ASSUME THAT THE WAGES WOULD GO UP 16 BUT MORE WITH THE NORMAL INCREASES FOR THE AVERAGE WORKER IN THE 17 AMERICAN ECONOMY. SO I DID ALLOW FOR INCREASES, BUT I ASSUMED 18 THAT UNDER THE FACT OF SEVERE BUDGET LIMITATIONS, THE 19 STEP-IN-GRADE INCREASES OVER AND ABOVE NORMAL INFLATION WOULD 20 NOT BE EXPECTED UNDER THESE CIRCUMSTANCES. 21 THE COURT: WELL, THERE MUST BE LAW ON THIS. MY 22 IMPRESSION AS WELL WAS THAT STEP INCREASES WERE GOVERNMENT-WIDE 23 AND WERE AUTOMATIC AND REQUIRED ABSENT POOR PERFORMANCE. 24 IF THAT'S NOT -- I MEAN, SURELY WE CAN FIND THAT 25 OUT. 1575 UDINSKY - DIRECT / SALTIEL 1 MR. SALTIEL: PERHAPS WE COULD, YOUR HONOR. IT'S 2 NOT IN THE RECORD RIGHT NOW, AND I DON'T KNOW THE ANSWER. 3 THE COURT: WELL, IT'S A MATTER OF LAW. I MEAN, THE 4 CIVIL SERVICE REGS ARE WHAT THEY ARE. AND MY UNDERSTANDING, AS 5 I SAY, IS THAT, AND IF THAT'S NOT THE CASE, THEN, PERHAPS, YOU 6 SHOULD GIVE ME SOME INDICATION OF THAT -- 7 MR. SALTIEL: OKAY. 8 THE COURT: -- AS A LEGAL MATTER. 9 MR. SALTIEL: OKAY, YOUR HONOR. 10 THE COURT: NOW, THE GRADE IS DIFFERENT. YOU DON'T 11 HAVE TO GIVE GRADE INCREASES, BUT I DO THINK YOU HAVE TO -- MY 12 IMPRESSION IS YOU HAVE TO GIVE THE STEP INCREASES. YOU SHOULD 13 KNOW. AREN'T YOU A GOVERNMENT EMPLOYEE? 14 MR. SALTIEL: YEAH, I HAVEN'T BEEN PAYING ATTENTION 15 TO THOSE THINGS. 16 MS. BURTON: WE'RE NOT ON A GS SCHEDULE, SO -- 17 THE COURT: I'M NOT EITHER, BUT THAT'S MY 18 IMPRESSION. 19 BY MR. SALTIEL: 20 Q. DID -- DID DR. THOMAS MAKE ANY ASSUMPTIONS REGARDING 21 WORK-LIFE EXPECTANCY THAT YOU HAVE ANY COMMENTS ON? 22 A. YES. WELL -- AND HE DID SPEAK TO THAT EXTENSIVELY. HE DID 23 TAKE THE -- THE POINT OF VIEW OF THE INTERESTED PARTY OR THE 24 PLAINTIFF WITH RESPECT TO THIS WITHOUT HAVING EXAMINED WHETHER 25 IT WAS REASONABLE OR NOT BASED UPON VARIOUS CIRCUMSTANCES. SO I 1576 UDINSKY - DIRECT / SALTIEL 1 WOULD SAY THAT WOULD BE A PROBLEM JUST ASSUMING WHAT THE 2 PLAINTIFF THOUGHT THEY WOULD WANT TO DO. 3 BUT HIS STATEMENTS REGARDING WORK LIFE WOULD BE TRUE 4 WITH RESPECT TO THEM BEING AN AVERAGE. HOWEVER, WHEN WE DO DEAL 5 WITH WHAT'S THE REASONABLE CALCULATION IN THE FUTURE, WE 6 FREQUENTLY USE THE AVERAGE AS BEING WHAT IS REASONABLE, 7 ADMITTING THAT YOU CAN'T KNOW THE FUTURE WITH ABSOLUTE 8 CERTAINTY. 9 Q. IN PERFORMING YOUR ANALYSIS OF PLAINTIFFS' ECONOMIC LOSS, 10 WHAT ASSUMPTIONS DID YOU MAKE REGARDING THE PLAINTIFFS' 11 WORK-LIFE EXPECTANCY? 12 A. WELL, I DID -- I JUST USED THE BUREAU OF LABOR STATISTICS 13 WORK LIFE WHEN I ACTUALLY PUT THE NUMBERS IN MY REPORT. BUT IN 14 MY REPORT, I DO NOT CALCULATE AN ECONOMIC LOSS GOING OUT ALL THE 15 WAY TO THE WORK LIFE GENERALLY, BECAUSE I ASSUMED MITIGATION 16 ACTIVITY, THAT IS, SEARCHING FOR ALTERNATIVE JOBS AND MITIGATION 17 EARNINGS, WHICH LED TO A ENDING OF THE LOSS GENERALLY BEFORE THE 18 WORK-LIFE EXPECTANCY. 19 Q. DR. UDINSKY, LET ME SHOW YOU WHAT'S BEEN MARKED FOR 20 IDENTIFICATION AS THE DEFENDANT'S EXHIBIT 1238. 21 A. YES. 22 Q. DO YOU RECOGNIZE THAT DOCUMENT? 23 A. YES. 24 Q. WHAT IS THAT? 25 A. THIS IS A CHART WHICH I PREPARED WHICH WAS IN MY REPORT THAT 1577 UDINSKY - DIRECT / SALTIEL 1 WAS SUBMITTED IN THIS CASE. AND IT LISTS THE -- WHAT I CALL THE 2 ACTUARIAL DATA FOR THE PLAINTIFFS, WHICH WOULD BE THEIR NAME, 3 THEIR DATE OF BIRTH, DATE OF HIRE, AGE AT THE -- AT THE DATE OF 4 THE RIF, WHICH WAS 10 -- WELL, AGE AT 10/15/95, WHICH IS THE 5 DATE THEIR PAY ENDED. THEN THEIR WORK-LIFE EXPECTANCY BASED 6 UPON THE BUREAU OF LABOR STATISTICS DATA. 7 Q. AND IS THE LIFE EXPECTANCY IN THERE AS WELL? 8 A. YES. 9 MR. SALTIEL: THE DEFENDANT MOVES THE ADMISSION OF 10 DEFENDANT'S EXHIBIT 1238. 11 MS. DRYOVAGE: I HAVE NO OBJECTION. 12 THE COURT: RECEIVED. 13 (DEFENDANT'S EXHIBIT 1238 14 RECEIVED IN EVIDENCE) 15 BY MR. SALTIEL: 16 Q. NOW, DID DR. THOMAS CONSIDER ANYTHING WITH RESPECT TO THE 17 PLAINTIFFS' ABILITY TO MITIGATE THEIR LOSSES? 18 A. WELL, I THINK WHAT HE ASSUMED WAS THAT WHATEVER THEY DID WAS 19 WHAT THEY COULD REASONABLY HAVE DONE BASED UPON A NORMAL AND 20 ORDINARY JOB SEARCH EFFORT. SO HE BASICALLY -- WHAT I SAY, HE 21 TOOK THE MITIGATION EARNING CAPACITY TO BE THE ACTUAL EARNINGS 22 OF THE PLAINTIFF RATHER THAN WHAT WE REFER TO IN OUR PROFESSION 23 AS MITIGATION EARNING CAPACITY. 24 Q. WHAT IS THE MITIGATION EARNING CAPACITY AS IT'S USED IN YOUR 25 PROFESSION? 1578 UDINSKY - DIRECT / SALTIEL 1 A. THIS WOULD BE THE NORMAL AND ORDINARY EXPECTATION OF 2 EARNINGS BASED UPON A NORMAL AND ORDINARY JOB SEARCH EFFORT 3 BASED UPON A PERSON'S BACKGROUND, SKILLS AND ABILITIES, AND 4 THEIR PROFESSIONAL STATUS. SO IT'S THE REASONABLE LEVEL OF 5 EARNINGS AS OPPOSED TO -- OR EARNING CAPACITY AS OPPOSED TO 6 WHATEVER A PERSON WANTED TO DO. THAT IS, A PERSON IS FREE IN 7 THIS COUNTRY TO -- TO DO WHAT THEY WANT TO DO. 8 BUT IN TERMS OF CALCULATING AN ECONOMIC LOSS IN MY 9 PROFESSION IN THE -- IN THE FIELD OF LAW AND ECONOMICS, WE DON'T 10 CALCULATE THE LOSS BASED UPON WHATEVER A PERSON WANTS TO DO. WE 11 CALCULATE IT BASED UPON THE DIFFERENCE BETWEEN THE EXPECTED 12 EARNINGS AT THE PREVIOUS JOB OR THE EARNING CAPACITY AND WHAT WE 13 CALL THE MITIGATION EARNING CAPACITY, WHICH IS THE REASONABLE 14 LEVEL OF EARNINGS BASED UPON A NORMAL AND ORDINARY JOB SEARCH 15 GIVEN THE PROFESSIONAL BACKGROUND OF THE INDIVIDUALS INVOLVED. 16 Q. AND CAN YOU EXPLAIN THE METHODOLOGY YOU USED IN ORDER TO 17 PERFORM YOUR CALCULATION OF THE ECONOMIC LOSS IN THIS CASE? 18 A. YES. WELL -- 19 Q. DO YOU NEED SOMETHING TO WRITE ON? 20 A. I COULD USE SOMETHING TO WRITE ON. ALSO I HAVE A LITTLE 21 CHART TO EXPLAIN IT, AND WE CAN GO FAIRLY FAST USING THOSE 22 CHARTS. 23 (OFF-THE-RECORD DISCUSSION.) 24 THE WITNESS: BASICALLY IT'S QUITE SIMPLE. THE 25 ECONOMIC LOSS IS A MINUS B, IN THIS CASE, MINUS C EQUALS D, 1579 UDINSKY - DIRECT / SALTIEL 1 WHERE A IS THE EARNING CAPACITY AT THE ORIGINAL JOB OR AT THE 2 U.S. GEOLOGICAL SERVICE, THAT IS, WHAT WOULD REASONABLY BE 3 EXPECTED IN THE FUTURE. 4 AND, AGAIN, WE DISCUSSED THE TWO ASPECTS OF THIS. 5 ONE, THE FACT THAT THERE WERE SALARY ADJUSTMENTS THAT I BELIEVE 6 WOULD HAVE BEEN NECESSARY GIVEN BUDGETARY LIMITATIONS. 7 MS. DRYOVAGE: OBJECTION, THIS IS NOT IN HIS REPORT. 8 THIS ANALYSIS. THIS IS SOMETHING NEW. 9 MR. SALTIEL: NO, IT'S NOTHING NEW. 10 THE COURT: A MINUS B MINUS C EQUALS D. SO FAR, I 11 THINK WE CAN KEEP UP. 12 MS. DRYOVAGE: OKAY. 13 THE WITNESS: AND ALSO THERE'S THE PROBLEM OF WHAT I 14 CALL MUTUAL EXCLUSIVITY. THAT IS BASED UPON BUDGETARY 15 LIMITATIONS, IF THAT LED TO CUTBACKS IN THE AVAILABLE 16 POSITIONS, NOT ALL OF THE PLAINTIFFS COULD HAVE BEEN 17 RE-EMPLOYED. 18 AND DR. THOMAS DID MENTION THE WAY ECONOMISTS 19 FREQUENTLY HANDLE THAT, WHICH IS BY APPLYING A PROBABILITY OF 20 FUTURE EMPLOYMENT GIVEN THE BUDGETARY LIMITATIONS. SO THIS IS 21 -- THESE ARE IMPORTANT CONSIDERATIONS WITH RESPECT TO 22 CALCULATION OF A, THE A FIGURE. 23 THE B HERE IS THE -- IS WHAT WE CALL THE MITIGATION 24 EARNING CAPACITY, WHICH NOW IS THE REASONABLE LEVEL OF EARNINGS 25 BASED UPON A NORMAL AND ORDINARY JOB SEARCH GIVEN THE SITUATION 1580 UDINSKY - DIRECT / SALTIEL 1 FOR THE INDIVIDUALS INVOLVED. AND THIS IS IMPORTANT TO 2 CONSIDER BECAUSE YOU WOULD LOOK AT A SECRETARY OR A -- A 3 LABORER DIFFERENT THAN YOU WOULD LOOK AT A PROFESSIONAL PERSON 4 OR SOMEONE WITH THE RELATIVELY HIGH STATUS OF THESE 5 INDIVIDUALS, RELATIVELY ACADEMIC, VERY HIGH EDUCATIONAL LEVEL. 6 SO THE MITIGATION EARNING CAPACITY WOULD HAVE TO BE APPROPRIATE 7 GIVEN THEIR LEVEL OF SKILLS AND ABILITIES. 8 AND THEN C, BOTH DR. THOMAS AND I SUBTRACTED THE 9 PENSION RECEIVED. WE ALSO INCLUDED IN OUR EARNING CAPACITY THE 10 LOSS OF PENSION AND THE MITIGATION EARNING CAPACITY, THE 11 RECEIPT OF PENSION IN MITIGATION, BUT WE SUBTRACTED OUT THE 12 ACTUAL PENSION RECEIVED. AND THE NET RESULT IS D, WHICH IS 13 WHAT WE CALL THE ECONOMIC LOSS. 14 SO THIS IS WHAT I MEAN BY THE APPROPRIATE ECONOMIC 15 LOSS, AND THE DIFFERENCE BETWEEN DR. THOMAS AND MYSELF IS 16 PRIMARILY IN THE MITIGATION EARNING CAPACITY; THAT IS, WHAT IS 17 APPROPRIATE TO CONSIDER AS MITIGATION EARNINGS. 18 AND THEN DR. THOMAS ASSUMED STEP AND GRADE 19 INCREASES, WHICH I BELIEVE WOULD HAVE TO HAVE BEEN ADJUSTED. 20 AND NUMBER TWO -- 21 BY MR. SALTIEL: 22 Q. ACTUALLY HE ASSUMED STEP INCREASES ONLY. I THINK WE'VE 23 ESTABLISHED THAT. 24 A. OKAY. THANK YOU. 25 AND THEN NUMBER TWO, THAT NOT ALL OF THESE POSITIONS 1581 UDINSKY - DIRECT / SALTIEL 1 COULD HAVE BEEN MAINTAINED UNDER THE BUDGETARY LIMITATIONS SO 2 IT'S CONVENIENT TO THINK IN TERMS OF THIS PARTICULAR FORMULA 3 HERE. 4 Q. WELL, USING THAT FORMULA, LET ME ASK YOU HOW DID YOU 5 CALCULATE THE LOST EARNING CAPACITY, A, THAT YOU HAVE ON YOUR 6 EQUATION? 7 A. WELL, WHAT I DID WAS TO TAKE THEIR EARNINGS AT THE DATE OF 8 DISCHARGE, AND I INCREASED IT BASED UPON THE AVERAGE EARNINGS 9 INDEX FOR WORKERS IN THE UNITED STATES. SO IT'S EFFECTIVELY AN 10 INFLATION-RELATED INDEX, A WORKERS' EARNINGS INFLATION INDEX. 11 SO WE DON'T KNOW EXACTLY WHAT THE INCREASES WOULD 12 HAVE BEEN UNDER THESE CIRCUMSTANCES. WE DIFFER BECAUSE I DON'T 13 FEEL THAT THE FORMULAS WOULD HAVE NECESSARILY BEEN APPLIED 14 DIRECTLY GIVEN THE MEMO THAT I HAVE ALREADY REVIEWED IN MARCH OF 15 '95, AND MY OWN EXPERIENCE IN SIMILAR SITUATIONS WHEN THERE ARE 16 SEVERE BUDGET LIMITATIONS AND LAYOFFS. 17 Q. IS THAT A VARIABLE THAT CAN BE ADJUSTED IN YOUR FORMULA? 18 A. YES. 19 Q. SO ONE COULD INCREASE THIS TO DR. THOMAS'S LEVEL IF YOU 20 CONSIDER THAT TO BE THE APPROPRIATE AMOUNT? 21 A. AND ALL OF THESE NUMBERS CAN BE ADJUSTED BASED UPON WHAT IS 22 CONSIDERED TO BE REASONABLE UNDER THE CIRCUMSTANCES. 23 Q. DID YOU CALCULATE THE MITIGATION EARNING CAPACITY FOR EACH 24 OF THE PLAINTIFFS? 25 A. YES. 1582 UDINSKY - DIRECT / SALTIEL 1 Q. AND HOW DID YOU GO ABOUT DOING THAT? WHAT FORMULA DID YOU 2 USE TO CALCULATE? 3 A. WELL, I USED A FAIRLY STRAIGHTFORWARD FORMULA FOR THESE 4 PARTICULAR PLAINTIFFS. AND, AGAIN, THIS FORMULA CAN BE ADJUSTED 5 IF THE COURT CONSIDERS SOMETHING ELSE MORE APPROPRIATE. BUT I 6 LOOKED AT APPROXIMATELY NINE MONTHS -- I LOOKED AT ACTUALLY NINE 7 MONTHS OF JOB SEARCH, AND THEN I LOOKED AT A BEGINNING SALARY AT 8 75 PERCENT OF THEIR -- THEIR LAST SALARY. 9 SO BASICALLY IT MEANS UPON REEMPLOYMENT, THEY WOULD 10 NOT BE ABLE TO ACHIEVE WHAT THEY HAD PREVIOUSLY BEEN EARNING BUT 11 TAKING CUT OF ABOUT 25 PERCENT, AND THEN A CATCH-UP UP TO THEIR 12 ORIGINAL SALARY IN THREE YEARS LINEARLY EACH YEAR. 13 Q. DID YOU MAKE ANY ASSUMPTIONS REGARDING WHEN A JOB SEARCH 14 WOULD BEGIN? 15 A. YES. I ASSUMED THAT THE JOB SEARCH WOULD HAVE BEGUN IN 16 AUGUST OF '95, WHEN THE ACTUAL NOTIFICATION OF -- OF -- OF 17 LAYOFF ACTUALLY OCCURRED. 18 HOWEVER, THERE WAS A DOCUMENT EARLIER IN WHICH THE 19 PLAINTIFFS WERE NOTIFIED THAT THERE WOULD BE SUBSTANTIAL 20 REDUCTIONS, ALTHOUGH NOT KNOWING EXACTLY WHO WOULD BE REDUCED. 21 AND I BELIEVE THIS WAS IN MARCH OF '95. SO THE JOB SEARCH 22 EFFORT COULD REASONABLY HAVE BEGUN PRIOR TO AUGUST OF '95. 23 AND IT'S NOT UNCOMMON, ESPECIALLY TRUE FOR 24 PROFESSIONAL PEOPLE SUCH AS ATTORNEYS OR OTHER PROFESSIONAL 25 PEOPLE, ECONOMISTS, THAT WHEN WE ARE AWARE OF FUTURE REDUCTIONS, 1583 UDINSKY - DIRECT / SALTIEL 1 WE THEN BEGIN OUR JOB SEARCH EFFORT, WHICH WOULD BE CONTACTING 2 PEOPLE THAT WE KNOW IN THE INDUSTRY, MAKING CONTACTS WITH PEOPLE 3 THROUGH VARIOUS INDUSTRY PUBLICATIONS, SUCH AS THE GEOLOGICAL 4 PUBLICATIONS WHICH ARE AVAILABLE, GOING TO JOB FAIRES, OR GOING 5 TO ANNUAL MEETINGS WHERE THERE ARE PEOPLE WHO ARE KNOWLEDGEABLE 6 ABOUT JOBS, HEADHUNTERS AND OTHER MEANS. 7 SO ALTHOUGH I CONSIDERED NINE MONTHS AND I CONSIDERED 8 IT FROM AUGUST, I BELIEVE THAT THIS JOB SEARCH COULD HAVE BEGUN 9 EARLIER. SO YOU COULD BE LOOKING AT, EFFECTIVELY, A LONGER JOB 10 SEARCH. 11 BUT IN MY CALCULATIONS, THE ACTUAL NUMBERS, I HAD A 12 9-MONTH JOB SEARCH, BEGINNING AT 75 PERCENT OF SALARY, AND A 13 CATCH-UP OVER 3 YEARS. 14 Q. AND WHAT DO YOU BASE -- THOSE THREE COMPONENTS OF MITIGATION 15 EARNING CAPACITY, WHAT DO YOU BASE THAT ON? 16 A. WELL, I BASE IT UPON MY OWN EXPERIENCE AS TO WHAT IS 17 REASONABLE IN A SIMILAR SITUATION FOR PROFESSIONAL PEOPLE OF 18 THIS NATURE. ALSO I SPOKE WITH DR. CARR, WHO'S THE REGIONAL 19 GEOLOGIST AT THE USGS, AND DR. CARR SPOKE WITH JILL MCCARTHY, 20 WHO'S ALSO IN THE USGS. 21 WE REVIEWED EACH OF THE PLAINTIFFS AS TO WHAT WOULD 22 BE REASONABLE AND WHAT TYPE OF JOB CATEGORIES THEY COULD BE 23 APPLYING FOR. THE BOTTOM LINE IS THAT FOR THE PEOPLE OF THIS 24 VERY HIGH LEVEL QUALIFICATION, YOU HAVE A GOVERNMENT JOBS, YOU 25 HAVE ACADEMIC JOBS, AND YOU HAVE PRIVATE INDUSTRY JOBS. 1584 UDINSKY - DIRECT / SALTIEL 1 AND DR. CARR FELT THAT SOME OF THESE PEOPLE WERE MORE 2 APPROPRIATE IN UNIVERSITY SETTINGS, FOR EXAMPLE, ONE PERSON DID 3 RECEIVE A JOB AT FRESNO STATE UNIVERSITY. OTHER PEOPLE WOULD BE 4 MORE APPROPRIATE IN -- HAVE A BETTER JOB PROSPECT IN THE MINERAL 5 INDUSTRY OR PETROLEUM INDUSTRY OR MANY OF THE OTHER INDUSTRIES 6 THAT EMPLOY GEOLOGISTS, AND THEN THERE WOULD BE A POSSIBILITY OF 7 GOVERNMENT EMPLOYMENT. 8 Q. IN USING THIS FORMULA FOR CALCULATING MITIGATION EARNING 9 CAPACITY, ARE YOU MAKING ANY ASSUMPTIONS ABOUT THE PLAINTIFFS 10 THEMSELVES? 11 A. YES, I AM. 12 Q. WHAT TYPES OF ASSUMPTIONS? 13 A. WELL, I THINK THE UNDERLYING ASSUMPTION IS THAT, NUMBER 14 ONE -- THAT, WELL, FOR ALL OF US, ALL OF US WHO HAVE PH.D.'S AND 15 WHO ARE PROFESSIONAL PEOPLE OF THIS NATURE, WE HAVE A -- IT'S 16 NECESSARY TO KEEP OUR JOB SKILLS APPROPRIATE AND CURRENT, AND 17 THAT IS DONE BY PUBLISHING PAPERS, BY ATTENDING MEETINGS, BY 18 GOING TO SEMINARS. EVEN ATTORNEYS ARE REQUIRED TO DO THE 19 CONTINUING EDUCATION AS WELL. 20 BUT I'M ASSUMING THAT THESE PEOPLE WERE QUALIFIED, 21 THAT -- IN FACT, THAT THEY WERE QUALIFIED, AS THEY SAID IN THEIR 22 OWN DEPOSITIONS, THAT THEY WERE -- THAT THEIR WORK WAS USEFUL TO 23 THE LARGER COMMUNITY, IT WAS IMPORTANT TO THE LARGER COMMUNITY, 24 IT WAS WORK THAT WAS NEEDED BY THE LARGER SOCIETY AND THAT IT 25 WAS HIGH-QUALITY WORK AND THAT THEY HAD KEPT THEIR SKILLS UP. 1585 UDINSKY - DIRECT / SALTIEL 1 ON THAT BASIS, IN GENERAL, ONE COULD ASSUME THAT THEY 2 COULD FIND EMPLOYMENT BASED UPON A NORMAL AND REASONABLE JOB 3 SEARCH. 4 MS. DRYOVAGE: WE CAN STIPULATE TO THAT. 5 THE COURT: I'M SORRY? 6 MS. DRYOVAGE: WE CAN STIPULATE TO THAT OF THE 7 ANALYSIS, THAT THE JOBS WERE NEEDED AND IMPORTANT TO THE 8 SOCIETY. AND THAT THESE WERE -- INDIVIDUAL PLAINTIFFS WERE 9 QUALIFIED TO DO THOSE JOBS. 10 BY MR. SALTIEL: 11 Q. DR. UDINSKY, THE CALCULATION OF MITIGATION OF EARNING 12 CAPACITY, IF ANY OF THOSE THREE COMPONENTS ARE CHANGED, CAN THE 13 METHODOLOGY STILL BE USED? 14 A. YES. IN OTHER WORDS, ONE COULD LOOK AT A HIGHER RATE OF 15 INCREASE FOR THE EARNING CAPACITY IF ONE FEELS THAT THE STEP 16 INCREASES WERE NECESSARY TO OCCUR, BUT IF THAT HAPPENED, THAT 17 WOULD, THEN, DECREASE THE AVAILABLE JOBS. 18 THAT IS, WE'RE DEALING HERE WITH SOMETHING CALLED 19 LINEAR PROGRAMMING IN -- IN ECONOMICS AND IN BUSINESS FINANCIAL 20 ANALYSIS. DON'T MEAN TO BE -- GET TOO ARCANE, BUT WHEN YOU ARE 21 FACED WITH A BUDGETARY LIMITATION, YOU HAVE TO MAKE CERTAIN 22 TRADE-OFFS THAT ARE NOT EVEN ECONOMIC TRADE-OFFS. THEY'RE 23 BASICALLY WHAT IS NECESSARY BASED UPON THE BUDGETARY LIMITATION. 24 SO IF YOU'RE GOING TO ASSUME HIGHER SALARY INCREASES, 25 YOU ARE THEN GOING TO BUMP UP AGAINST THE SALARY LIMITATION 1586 UDINSKY - DIRECT / SALTIEL 1 BASED UPON THE BUDGET. I BELIEVE THAT THE TESTIMONY I READ IS 2 THAT THEY DIDN'T EVEN HAVE ENOUGH MONEY TO FINANCE THEIR 3 RESEARCH BECAUSE OF THE HIGH LEVEL OF SALARIES. 4 Q. JUST SO YOU KNOW, MY QUESTION CONCERNS THESE THREE -- THESE 5 THREE COMPONENTS OF MITIGATION EARNING CAPACITY. 6 A. YES. 7 OKAY. AND WOULD YOU SAY IT AGAIN, THEN? 8 Q. ARE THOSE THREE COMPONENTS VARIABLE IN THIS EQUATION? 9 A. YES, DEFINITELY. IN OTHER WORDS, YOU COULD INCREASE THE JOB 10 SEARCH TO A LONGER PERIOD OF TIME IF YOU FELT THAT A PARTICULAR 11 INDIVIDUAL WOULD HAVE A MORE DIFFICULT TIME FINDING A JOB. 12 IF YOU FEEL LIKE THEY WOULD HAVE TO START AT A LOWER 13 LEVEL, YOU COULD CHANGE THAT. AND THE -- THE CATCH-UP. BUT I 14 AM ASSUMING HERE THAT -- THAT THE SALARY THAT WAS BEING PAID TO 15 THESE INDIVIDUALS WAS THE APPROPRIATE LEVEL OF COMPENSATION FOR 16 THEIR SKILLS AND ABILITIES. 17 SO, THEREFORE, I'M ASSUMING THAT THE ECONOMIC 18 MARKETPLACE WILL RECOGNIZE THE VALUE OF THEIR SERVICES. THAT 19 GOES BACK TO THE ASSUMPTION THAT THESE SKILLS AND ABILITIES WERE 20 KEPT CURRENT, THEY WERE IMPORTANT, AND THEY WERE USEFUL, AND, 21 THEREFORE, THAT THERE ARE ALTERNATIVE JOB POSSIBILITIES THAT 22 WILL PAY A SIMILAR AMOUNT OF MONEY. 23 Q. ARE YOU MAKING ANY ASSUMPTIONS REGARDING THE JOB SEARCH 24 ITSELF? 25 A. WELL, IN THE -- IN MY SCENARIO IN CALCULATING THE MITIGATION 1587 UDINSKY - DIRECT / SALTIEL 1 EARNING CAPACITY, I'M ASSUMING A NORMAL AND ORDINARY JOB SEARCH 2 FOR PROFESSIONALS OF THIS NATURE. NOW, PROFESSIONALS IN -- WHO 3 ARE PH.D.'S AND, AT THIS LEVEL, ARE QUITE FAMILIAR WITH THE 4 NATURE OF OUR JOB SEARCH SITUATION. 5 WE GO TO PROFESSIONAL MEETINGS. WE READ OUR 6 PROFESSIONAL JOURNALS. WE NETWORK. WE GO TO HEADHUNTERS OR JOB 7 SEARCH SPECIALISTS. WE ALSO KEEP CURRENT ON THE LITERATURE. 8 AND IN PARTICULAR, AND MOST IMPORTANT, WE KEEP A JOB SEARCH 9 FILE, THAT IS, ALL THE PEOPLE WE CONTACT. WE KEEP A RECORD OF 10 WHO WE CONTACTED. WE RECONTACT THEM OVER TIME. 11 SOMETIMES THESE JOBS AREN'T AVAILABLE IMMEDIATELY, 12 BUT YOU MAKE AN INITIAL CONTACT, AND THEN YOU WAIT UNTIL THE JOB 13 COMES AVAILABLE. SO YOU MAKE INFORMATIONAL CONTACTS THAT LATER 14 ON LEAD TO A JOB. 15 SO WHAT I'M ASSUMING IS THAT THIS NORMAL AND ORDINARY 16 JOB SEARCH WOULD HAVE BEEN APPROPRIATELY CONDUCTED BY EACH 17 PLAINTIFF, THE END RESULT BEING THE 9-MONTH JOB SEARCH, 18 75 PERCENT STARTING SALARY, AND CATCH-UP OVER 3 YEARS. 19 Q. DID YOU MAKE ANY ASSUMPTIONS ABOUT THE AMOUNT OF TIME SPENT 20 ON A JOB SEARCH? 21 A. WELL, I'M ASSUMING HERE A NINE-MONTH JOB SEARCH. 22 Q. I'M NOT TALKING ABOUT HOW LONG IT TAKES. I'M TALKING ABOUT 23 THE AMOUNT OF TIME ONE SPENDS -- 24 A. OH, RIGHT. 25 Q. -- OVER A GIVEN WEEK. 1588 UDINSKY - DIRECT / SALTIEL 1 A. RIGHT. RIGHT. 2 WELL, HERE, AGAIN, THIS IS RELATED TO THE IDEA OF I 3 AM CALCULATING A LOST EARNING CAPACITY, THE A PART OF THE 4 EQUATION AS IF THE PERSON WAS WORKING FULL-TIME. 5 IN OTHER WORDS, I'M CALCULATING AN ECONOMIC LOSS FOR 6 THIS INDIVIDUAL, THE LOST EARNING CAPACITY BASED UPON THEIR 7 WORKING FULL-TIME. THE PLAINTIFFS ARE SEEKING TO BE PAID -- TO 8 BE REIMBURSED AS IF THEY WERE WORKING FULL-TIME. 9 NOW, THE OTHER SIDE OF THAT COIN, THE REQUEST TO BE 10 PAID AS IF THEY WERE WORKING FULL-TIME IS THE FULL-TIME JOB 11 SEARCH EFFORT, WHICH IS THE FULL-TIME EFFORT TO REDUCE OR 12 MITIGATE THE ECONOMIC LOSS. SO I'M ASSUMING HERE THAT THE JOB 13 SEARCH WOULD BE AT LEAST 30 HOURS A WEEK, THAT IT WOULD BE A 14 PROFESSIONAL JOB SEARCH BASED UPON THE SKILLS AND ABILITIES AND 15 REQUIREMENTS OF THAT PARTICULAR PROFESSION. ALSO THAT THE JOB 16 SEARCH WOULD BE -- IN THE TAKING OF JOBS WOULD BE APPROPRIATE 17 FOR THAT PROFESSION. 18 FOR EXAMPLE, IN GEOLOGY, DR. CARR DESCRIBED IT AS 19 GYPSIES; THAT IS, UNFORTUNATELY IN GEOLOGY, YOU HAVE TO HAVE 20 TREMENDOUS GEOGRAPHIC MOBILITY. YOU HAVE TO GO TO ANTARCTICA. 21 YOU HAVE TO GO TO ALASKA. YOU HAVE TO GO TO PLACES THAT ARE FAR 22 AWAY. SO I AM ASSUMING HERE, GEOGRAPHIC MOBILITY BASED UPON THE 23 NORMAL AND ORDINARY REQUIREMENTS OF THE PROFESSION. 24 SO EACH JOB SEARCH IS BASED UPON THE NORMAL AND 25 ORDINARY REQUIREMENTS OF THE PROFESSION, THE NORMAL THINGS THAT 1589 UDINSKY - DIRECT / SALTIEL 1 A GEOLOGIST WOULD DO IN TERMS OF SEEKING ALTERNATIVE EMPLOYMENT 2 AND THE LOCATION OF ALTERNATIVE EMPLOYMENT. 3 Q. COULD YOU TURN TO -- IN THE BINDER IN FRONT OF YOU TO 4 EXHIBIT 1239. DO YOU HAVE THAT BINDER IN FRONT OF YOU STILL? 5 A. YES. 6 Q. DO YOU HAVE THAT EXHIBIT IN FRONT OF YOU? 7 A. YES. 8 Q. COULD YOU -- DO YOU RECOGNIZE THAT DOCUMENT? 9 A. YES, SIR. 10 Q. CAN YOU TELL US WHAT THAT IS? 11 A. YES. THIS IS THE -- THIS IS MY CALCULATION BASED UPON THE 12 PARAMETERS I'VE JUST PROVIDED. IT'S MY CALCULATION OF THE 13 ECONOMIC LOSS FOR DR. DAVID ADAM. 14 Q. NOW, IS YOUR -- THE FORMULA THAT YOU JUST DESCRIBED FOR 15 DETERMINING ECONOMIC LOSS, IS THAT CONTAINED IN THIS TABLE? 16 A. YES, IT IS. 17 Q. CAN YOU EXPLAIN HOW THAT WORKS IN THIS TABLE? 18 A. CERTAINLY. WELL, I KNOW THERE'S A LOT OF NUMBERS HERE. 19 I'LL JUST GO THROUGH ONE LINE TO TRY TO ILLUSTRATE WHAT THEY 20 ARE. WHAT I'VE DONE HERE IS TO TAKE THE EARNINGS AT THE DATE OF 21 DISCHARGE AND INCREASE THOSE EARNINGS, NORMAL INFLATION, AS I 22 MENTIONED. THAT WOULD BE IN COLUMN FOUR. 23 THE TIME PERIODS ARE DESIGNATED IN THE FIRST THREE 24 COLUMNS. SO COLUMN -- THE FIRST THREE COLUMNS ARE THE TIME 25 PERIODS, AND THE NEXT COLUMN WOULD BE THE EARNING CAPACITY. AND 1590 UDINSKY - DIRECT / SALTIEL 1 BY THE WAY, THE TIME PERIODS WOULD BE -- WOULD BE HERE 3.58 2 YEARS. SO I'VE ASSUMED THAT BASED UPON A NORMAL AND ORDINARY 3 JOB SEARCH EFFORT, WHICH WOULD BE A FULL-TIME JOB SEARCH EFFORT, 4 THAT IT'S A FULL-TIME EFFORT TO REDUCE OR MITIGATE THE ECONOMIC 5 LOSS. 6 I -- I'M SUGGESTING THAT THE ECONOMIC LOSS WOULD END 7 AFTER 3.58 YEARS. AND IN HIS CASE, AROUND 5/14/99. THE 8 APPROPRIATE METHOD OF MAKING THE CALCULATION IS TO ASSUME THIS 9 PARTICULAR MITIGATION SCENARIO. 10 THE EARNINGS AT USGS I HAVE IN COLUMN 4, AND THERE, I 11 MENTIONED I ASSUMED INFLATIONARY INCREASES. THESE ARE NOT 12 INSUBSTANTIAL. THEY ARE ON THE ORDER OF THREE TO FOUR PERCENT 13 PER YEAR, SO IT, I BELIEVE, IS SLIGHTLY ABOVE THE 14 ACROSS-THE-BOARD INCREASES FOR THE GOVERNMENT. SO ACTUALLY 15 THESE NUMBERS DO ALLOW SOME POSSIBLE STEP INCREASE BUT NOT 16 NECESSARILY AT THE PRESCRIBED LEVEL. 17 THE -- THEN THE FOURTH -- THE FIFTH COLUMN IS FOR THE 18 PERIOD INVOLVED, THE LOSS THAT WOULD OCCUR IN THAT PERIOD. THE 19 PERIOD IS SPECIFIED ON THE LEFT-HAND SIDE OF THE PAGE. THEN I 20 INCLUDE LOST HEALTH AND WELFARE BENEFITS; THAT IS, IN THE 21 PROCESS OF LOOKING FOR A JOB, YOU ARE LOSING YOUR HEALTH AND 22 WELFARE BENEFITS. 23 I'M ASSUMING THAT WHEN THE JOB IS FOUND THAT THE 24 HEALTH AND WELFARE BENEFITS WOULD BE RECOUPED. THE RETIREMENT 25 BENEFITS ARE CALCULATED IN THE NEXT COLUMN, AND THAT WOULD BE 1591 UDINSKY - DIRECT / SALTIEL 1 BASED UPON THE 6.8 PERCENT RETIREMENT FRINGE BENEFIT FACTOR, 2 WHICH WOULD BE SIMILAR TO WHAT DR. THOMAS USED AS WELL. INSOFAR 3 AS THERE IS A SALARY DIFFERENTIAL, I'VE ASSUMED A LOSS OF 4 PENSION BENEFITS UNTIL THAT DIFFERENTIAL GOES TO ZERO OR IS 5 ELIMINATED. 6 THEN THERE ARE UNEMPLOYMENT BENEFITS THAT ARE 7 RECEIVED WHICH ARE DESIGNATED IN THE NEXT COLUMN. THEN THERE -- 8 FOR SOME OF THE PLAINTIFFS, THERE WAS SEVERANCE PAY. GENERALLY 9 IF YOU DO NOT RECEIVE A PENSION, YOU RECEIVE SEVERANCE PAY. IN 10 THIS CASE, DR. ADAM RECEIVED A PENSION, SO THERE'S ZERO NUMBERS 11 IN THE SEVERANCE PAY CATEGORY. 12 THE NEXT COLUMN IS THE ACTUAL RETIREMENT INCOME THAT 13 WAS RECEIVED. SO BOTH DR. THOMAS AND I ARE SUBTRACTING OUT THE 14 ACTUAL RETIREMENT RECEIVED. AS I MENTIONED, THE LOSS RETIREMENT 15 IS INCLUDED IN THE LOST EARNING CAPACITY THAT I MENTIONED 16 EARLIER, SO THIS IS THE OFFSETTING RETIREMENT RECEIVED. 17 SO IN ORDER TO RECOUP THE ECONOMIC LOSS, YOU DON'T 18 HAVE TO GET YOUR ENTIRE SALARY BACK, BUT YOU CAN GET THE SALARY 19 LESS THE PENSION THAT YOU'RE RECEIVING. HOWEVER, IN MY 20 CALCULATIONS, I ASSUMED THAT THE MITIGATION EARNING CAPACITY 21 GOES BACK TO THE ORIGINAL LEVEL. I'M SUGGESTING THAT THE 22 ECONOMIC LOSS COULD END, IF, IN FACT, YOU GET SOMETHING LESS 23 THAN THE ORIGINAL LEVEL BECAUSE MR. ADAM, FOR EXAMPLE, IS 24 RECEIVING RETIREMENT ANNUITY. 25 THEN THE NEXT COLUMN IS THE MITIGATION EARNING 1592 UDINSKY - DIRECT / SALTIEL 1 CAPACITY. HERE IT'S BASED UPON THE ASSUMPTION THAT'S -- HE 2 WOULD START AT 75 PERCENT OF HIS ORIGINAL LEVEL. YOU'LL NOTICE 3 HERE IN LINE 3 THAT'S $61,704, 6-1-7-0-4. IT GOES UP TO 4 $80,526. THAT'S THE ORIGINAL SALARY INCREASED WITH INFLATION. 5 THEN -- THAT'S THE ANNUAL MITIGATION EARNING CAPACITY. FOR EACH 6 PERIOD, WE CALCULATE THE NUMBER IN THE NEXT COLUMN. 7 FINALLY, THE NET ECONOMIC LOSS IS CALCULATED IN THE 8 FAR RIGHT COLUMN. NOW, HERE, WE DO HAVE A NEGATIVE NUMBER, BUT 9 THIS IS BECAUSE THE -- WE'RE CALCULATING IN THE ACTUAL PENSION 10 RECEIVED, AND WE ARE ASSUMING THAT THE PERSON IS ABLE TO RECOUP 11 THEIR ORIGINAL EARNING CAPACITY. 12 IF YOU ASSUME THAT THEY ONLY COME UP TO THE ORIGINAL 13 EARNING CAPACITY MINUS THE PENSION RECEIVED, THE NET LOSS WOULD 14 BE ZERO. 15 Q. DID YOU CREATE SIMILAR TABLES FOR EACH OF THE PLAINTIFFS? 16 A. YES, SIR. 17 Q. AND DO THOSE TABLES APPEAR IN EXHIBITS 1239 THROUGH 1252 18 THAT'S IN FRONT OF YOU? 19 A. THAT IS CORRECT. 20 MR. SALTIEL: THE DEFENDANT MOVES THE ADMISSION OF 21 EACH OF THESE EXHIBITS, 1230 THROUGH 1252. 22 THE COURT: RECEIVED. 23 MS. DRYOVAGE: WE OBJECT TO THE ADMISSION OF THESE 24 EXHIBITS, EXCEPT TO SAY WHAT IT WAS THAT HE CALCULATED THE 25 DAMAGES AS. BUT UNTIL WE HAVE A CHANCE TO EXAMINE HIM, I DON'T 1593 UDINSKY - DIRECT / SALTIEL 1 THINK THEY SHOULD COME IN AS EVIDENCE. 2 THE COURT: THEY'LL BE RECEIVED. 3 (DEFENDANT'S EXHIBITS 1230 THROUGH 1252 4 RECEIVED IN EVIDENCE) 5 MR. SALTIEL: OKAY. THANK YOU, DR. UDINSKY. I HAVE 6 NO FURTHER QUESTIONS. 7 THE WITNESS: OKAY. 8 CROSS-EXAMINATION 9 BY MS. DRYOVAGE: 10 Q. GOOD MORNING, DR. UDINSKY. 11 A. GOOD MORNING. 12 Q. NOW, YOU CAME UP WITH VERY DIFFERENT RESULTS FROM 13 DR. THOMAS, DID YOU NOT? 14 A. YES. WELL, IN SOME RESPECTS, YES. I MEAN, WE STARTED 15 WITH -- 16 Q. WELL, I'LL ASK QUESTIONS -- 17 A. SURE. 18 Q. -- AND THEN YOU CAN RESPOND AND GIVE THE COURT REPORTER A 19 CHANCE TO TAKE DOWN MY QUESTIONS BEFORE YOU ANSWER, IF YOU 20 WOULD. THANK YOU. 21 IN YOUR CALCULATIONS OF THE LOST INCOME FROM THE 22 PLAINTIFFS, YOU DID NOT USE THE GOVERNMENT PAY CHARTS THAT 23 CALCULATE THE NUMBER OF DOLLARS THAT THEY WOULD HAVE RECEIVED 24 DURING THE PERIOD 1995 WHEN THEY WERE RIF'ED UNTIL THE PRESENT 25 IN 2003, DID YOU? 1594 UDINSKY - CROSS / DRYOVAGE 1 A. THAT IS CORRECT. I DID NOT ASSUME THAT THE PAY CHARTS WOULD 2 NECESSARILY BE APPLIED HAD THEY REMAINED. 3 Q. BUT THOSE, IN FACT, ARE THE PAY CHARTS THAT WOULD HAVE 4 GOVERNED THE PAST WAGES FOR EACH OF THE PLAINTIFFS, WERE THEY 5 NOT? 6 A. WELL, AS I MENTIONED IN MY OPINION, THEY WOULD NOT GOVERN. 7 AND AS I MENTIONED, THE MEMO THAT I MENTIONED EARLIER -- 8 THE COURT: WELL, AS WE ESTABLISHED, THIS IS GOING 9 TO BE A QUESTION OF LAW, AND WE'LL FIND OUT THE ANSWER. 10 MS. DRYOVAGE: OKAY. 11 THE WITNESS: THE OTHER FACTOR IS THAT -- 12 BY MS. DRYOVAGE: 13 Q. WELL, JUST A SECOND. I'LL ASK QUESTIONS, AND THEN THE 14 OPPOSING COUNSEL WILL ASK YOU ON REDIRECT, IF NEED BE. 15 AND YOU DID NOT USE THE GOVERNMENT RETIREMENT CHARTS 16 TO CALCULATE WHAT THE LOST RETIREMENT BENEFITS WERE IN THE PAST 17 BETWEEN OCTOBER 14TH, 1995, AND THE PRESENT, DID YOU? 18 A. I DON'T UNDERSTAND WHAT YOU'RE SAYING. 19 Q. OKAY. THE GOVERNMENT HAS REGULATIONS UPON WHICH THEY BASE 20 THE CALCULATION OF THE RETIREMENT BENEFITS. YOU'RE NOT FAMILIAR 21 WITH THE WAY THAT IS DONE AND WHAT IS REQUIRED BY LAW, ARE YOU? 22 A. NO, I AM FAMILIAR. I THINK WHAT YOU MEAN IS THE PENSION 23 FORMULA CALCULATION, THE CALCULATION OF THE PENSION ANNUITY, IS 24 THAT WHAT YOU'RE REFERRING TO? 25 Q. WELL, THERE'S ALSO -- THERE'S A CALCULATION OF HOW THE 1595 UDINSKY - CROSS / DRYOVAGE 1 ANNUITY IS CALCULATED BASED ON THE HIGH THREE SALARY OF THE 2 PERSON'S LAST HIGHEST THREE YEARS? 3 A. THAT IS CORRECT. I DID NOT USE THAT FORMULA. 4 Q. AND YOU DID NOT USE THE GOVERNMENT PAY CHARTS FOR WHAT 5 ACTUALLY WOULD HAVE BEEN THE PENSION BENEFITS THAT WOULD HAVE 6 ACCRUED FOR PURPOSES OF CALCULATING THE -- EITHER THE PAST 7 PENSION BENEFITS OR THE FUTURE PENSION BENEFITS, DID YOU NOT? 8 A. THAT'S RIGHT. I DID NOT USE THE NECESSARY STEP INCREASES. 9 Q. OKAY. AND IN DEVELOPING YOUR THEORY, YOU USED THE NUMBERS 10 THAT ARE PROVIDED BY THE -- WASN'T IT A EMPLOYER BODY THAT PUTS 11 OUT FIGURES PROJECTING WHAT THE INCOME WILL BE IN VARIOUS 12 FIELDS, DID YOU NOT? 13 A. NO. I MEAN, YOU MAY BE REFERRING TO SOME OF THE DATA WHICH 14 I BROUGHT TO MY DEPOSITION REGARDING ALTERNATIVE JOBS AND 15 ALTERNATIVE EARNINGS. COULD YOU MEAN THE PERCENT -- I USED A 16 PERCENT PENSION, THAT IS, DR. THOMAS AND I USED A 6.8 PENSION 17 FACTOR. IS THAT WHAT YOU'RE REFERRING TO? 18 INSTEAD OF USING THE FORMULA AND HIGH THREE, I USED A 19 6.8 PERCENT PENSION FACTOR. 20 Q. WASN'T THERE AN EMPLOYEE BENEFIT STUDY FROM THE U.S. CHAMBER 21 OF COMMERCE REFERRED TO IN FOOTNOTE 5 AS THE BASIS FOR THE LOST 22 EARNINGS CAPACITY ANALYSIS THAT YOU DID? 23 A. LET'S SEE. 24 (REVIEWING DOCUMENTS.) 25 YES, THAT'S THE CHAMBER OF COMMERCE STUDY. THAT'S 1596 UDINSKY - CROSS / DRYOVAGE 1 WHERE THE -- IN OTHER WORDS, RATHER THAN MAKING THE CALCULATION 2 OF THE PENSION PROJECTING FORWARD TO A DATE OF RETIREMENT 3 ASSUMING A PARTICULAR FORMULA APPLIED AND CALCULATING WHAT WE -- 4 MUST BE THEIR HIGH THREE YEARS AND PROJECTING A FUTURE LIFETIME 5 AND ASSUMING THE APPROPRIATE INTEREST RATE AND -- AND OTHER 6 FACTORS, I MADE THE MORE SIMPLE APPROACH, WHICH WAS -- AND 7 FREQUENTLY USED BY ECONOMISTS AND ALSO USED BY DR. THOMAS IN 8 SOME OF HIS CALCULATIONS, WHICH IS ASSUMING THE PENSION WOULD BE 9 VALUED AT 6.8 PERCENT OF SALARY. 10 Q. BUT IN MAKING THE BACK PAY ANALYSIS, YOU DID NOT USE THE WAY 11 IN WHICH THE GOVERNMENT WOULD CALCULATE A FEDERAL EMPLOYEE'S 12 BACK PAY IN A EMPLOYMENT DISCRIMINATION CASE, DID YOU? 13 A. I DISAGREE WITH THAT. 14 Q. YOU'RE FAMILIAR WITH THE FACT THAT FEDERAL EMPLOYEES HAVE 15 WAGES THAT ARE SET BY THE GS GRADE AND STEP THAT THEY ARE IN AT 16 THE TIME THAT THE CALCULATION IS BEING FIGURED FOR, ARE YOU NOT? 17 THE COURT: WELL, I THINK WE'VE ALREADY TALKED ABOUT 18 THIS ISSUE ABOUT THE STEP, AND WE -- APPEARS THAT NONE OF US IN 19 THIS ROOM KNOWS THE ANSWER TO THAT, AND THUS, WE WILL HAVE TO 20 LOOK IT UP. AND THE ANSWER, I -- I'M ASSUMING, WILL BE FAIRLY 21 STRAIGHTFORWARD, SO I DON'T THINK WE NEED TO DISCUSS THAT 22 ANYMORE. 23 MS. DRYOVAGE: OKAY. 24 Q. NOW, IN CONDUCTING YOUR ANALYSIS, YOU DID NOT ACTUALLY 25 EVALUATE EACH OF THE JOB EFFORTS THAT WERE MADE BY THE 1597 UDINSKY - CROSS / DRYOVAGE 1 INDIVIDUAL PLAINTIFFS, DID YOU? 2 A. I DISAGREE WITH THAT. 3 Q. NOW, FOR DAVID ADAM, WHAT FACTORS DID YOU TAKE INTO 4 CONSIDERATION IN TESTIFYING A MOMENT AGO THAT HE MADE OUT BETTER 5 AS A RESULT OF BEING RIF'ED THAN HE WOULD HAVE IF HE HAD 6 MAINTAINED HIS JOB WITH THE USGS? 7 MR. SALTIEL: OBJECTION, MISCHARACTERIZES HIS 8 TESTIMONY. 9 THE COURT: WELL, WHY DON'T YOU REPHRASE YOUR 10 QUESTION. 11 MS. DRYOVAGE: OKAY. 12 Q. FOR DAVID ADAM, YOU SAID THAT IN TABLE 1 OF YOUR REPORT, 13 THAT HE HAD NO TOTAL ECONOMIC LOSS WHATSOEVER IN THE PAST SEVEN 14 YEARS SINCE THE RIF? 15 A. WELL, ACTUALLY, YOUR QUESTION HAS MANY ASPECTS. THE -- IN 16 SOME RESPECTS, HE DID HAVE AN ECONOMIC LOSS BECAUSE, IN MY 17 OPINION, HE CHOSE NOT TO LOOK FOR WORK APPROPRIATELY. THAT'S 18 THE BOTTOM LINE. 19 HAD HE ENGAGED IN A NORMAL AND ORDINARY JOB SEARCH 20 INSTEAD OF GOING ON EMERITUS STATUS AND PUBLISHING A FEW PAPERS 21 AND DOING CONTRACT WORK WITH A FEW AGENCIES AND MOVING TO 22 LAKE COUNTY -- YOU KNOW, HAD HE ENGAGED IN NORMAL AND ORDINARY 23 JOB SEARCH FOR A PH.D. GEOSCIENTIST, WHICH WOULD ENTAIL THE 24 POSSIBILITY OF WORKING FOR PRIVATE INDUSTRY, THE POSSIBILITY OF 25 WORKING FOR GOVERNMENT, THE POSSIBILITY OF WORKING FOR 1598 UDINSKY - CROSS / DRYOVAGE 1 UNIVERSITIES, THAT, IN MY OPINION, HE COULD HAVE OBTAINED A 2 RELATIVELY HIGH SALARY, WHICH COMBINED WITH HIS RELATIVELY HIGH 3 PENSION, WOULD HAVE ACTUALLY ALLOWED HIM TO EARN MORE THAN HE 4 PREVIOUSLY EARNED. 5 AND THIS IS NOT UNCOMMON FOR GOVERNMENT WORKERS WHO 6 RETIRE WITH FAIRLY GOOD PENSIONS AND THEN WORK AT ALTERNATIVE 7 JOBS. 8 NOW, AS I MENTIONED, IF YOU ASSUME THAT THE 9 ALTERNATIVE MITIGATION EARNING CAPACITY IS LESS THAN THEIR -- 10 THE SALARY THEY HAD WHEN THEY LEFT THE GOVERNMENT, THE -- THAT 11 IS, THAT HE WOULD NEVER CATCH UP, THERE WOULD STILL BE A ZERO 12 ECONOMIC LOSS IF THEY WERE ABLE TO ACHIEVE THE ORIGINAL SALARY 13 AT THE USGS MINUS THEIR PENSION. 14 SO WHAT YOU'RE TALKING ABOUT IS AN ARTIFACT OF THE 15 NUMBERS, ASSUMING THAT THEY WERE ABLE TO CATCH UP TO THEIR 16 ORIGINAL SALARY, BECAUSE THEY HAVE A RELATIVELY GOOD PENSION, 17 THEY WOULD HAVE ACTUALLY HAD A HIGHER LEVEL OF ECONOMIC EARNINGS 18 THAN THEY WOULD HAVE HAD IF THEY WOULD HAVE REMAINED AT THE 19 USGS. 20 Q. NOW, THIS ANALYSIS FOR DR. ADAM DEPENDED ON YOUR 21 UNDERSTANDING OF WHAT THE BUDGET SITUATION WAS, AND YOU SAID 22 THAT THE DOCUMENT THAT YOU REVIEWED ABOUT THE BUDGET SITUATION 23 WAS THE GENERAL RIF NOTICE CITING FISCAL REASONS FOR A REDUCTION 24 IN FORCE BY JOHN FILSON DATED MARCH 9TH, 1995. 25 A. YES, MA'AM; THAT IS CORRECT. 1599 UDINSKY - CROSS / DRYOVAGE 1 Q. OKAY. AND YOU WERE NOT AWARE OF THE FACT THAT AT THE TIME 2 THIS RIF NOTICE WENT OUT, THERE HAD BEEN THREE BUYOUTS THAT HAD 3 CAUSED A NUMBER OF EMPLOYEES, WHICH HAS BEEN TESTIFIED EARLIER 4 IN THIS TRIAL, AS OVER 400 EMPLOYEES TO LEAVE THE U.S. 5 GEOLOGICAL SURVEY. 6 THAT FACTOR WAS NOT TAKEN INTO YOUR ACCOUNT IN 7 DECIDING THAT DR. ADAM HAD A BETTER SHOT AT MORE LUCRATIVE WORK 8 THAN HE WAS ACTUALLY ABLE TO OBTAIN DURING THE PERIOD IN 9 QUESTION, '95 THROUGH THE PRESENT, DOES IT NOT? 10 A. YOU KNOW, I DON'T QUITE UNDERSTAND YOUR QUESTION. IF YOU 11 COULD BE A LITTLE BIT MORE SPECIFIC, PLEASE. 12 Q. YOU WERE NOT TOLD BY DR. CARR WHEN HE PROVIDED YOU 13 INFORMATION ABOUT THE INDIVIDUAL PLAINTIFFS ABOUT THE ACTUAL 14 CIRCUMSTANCES FOR GEOLOGISTS IN NORTHERN CALIFORNIA IN 1995 15 AFTER THREE CONSECUTIVE BUYOUTS RESULTED IN A NUMBER OF PEOPLE 16 GOING IN -- GETTING IN PRIVATE SECTOR, UNIVERSITY SECTOR, 17 GOVERNMENT SECTOR, AND CONSULTING JOBS IN DR. ADAM'S FIELD, DID 18 YOU? 19 MR. SALTIEL: OBJECTION, COMPOUND. 20 MS. DRYOVAGE: I BELIEVE IT'S A LIST THAT TAKES 21 INTO -- WE CAN GO THROUGH THEM ONE BY ONE, IF YOU WOULD LIKE. 22 AND MAYBE TO SHORTEN IT UP -- 23 THE COURT: WELL, IT'S ESSENTIALLY AN ARGUMENTATIVE 24 QUESTION. 25 WHAT SHE'S ASKING ABOUT IS DID YOU TAKE INTO ACCOUNT 1600 UDINSKY - CROSS / DRYOVAGE 1 THE FACT THAT THERE WERE A LOT OF PEOPLE WHO HAD BEEN BOUGHT 2 OUT RELATIVELY RECENTLY, AND MAYBE THEY HAD SNAPPED UP ALL THE 3 JOBS ALREADY. 4 THE WITNESS: I DID. I SPOKE WITH DR. CARR ABOUT 5 THIS, AND HE ALSO SPOKE WITH OTHER PEOPLE AS WELL. AND HE DID 6 NOT CONSIDER THESE PEOPLE TO BE A MAJOR PART OF THE JOB MARKET. 7 NOW, IF THE GOVERNMENT -- IF THE USGS WAS EMPLOYING, 8 LET'S SAY, 70 OR 80 PERCENT OF ALL GEOLOGISTS IN THE WORLD, 9 THEN THEY MAY HAVE A BIG IMPACT ON THAT MARKET, BUT WE'RE ONLY 10 TALKING ABOUT THE PEOPLE WHO ARE COMPARABLE HERE, THE OTHER 11 PH.D. GEOLOGISTS OR THE MASTER'S DEGREE PEOPLE. 12 BUT THE MASTER'S DEGREE PEOPLE ACTUALLY HAVE A MUCH 13 LARGER AND WIDER JOB AVAILABILITY, GIVEN THEIR SKILLS AND 14 ABILITIES ARE USEFUL ACROSS MANY DIFFERENT TYPES OF SCIENTIFIC 15 OCCUPATIONS, NOT JUST GEOLOGY. 16 SO I JUST THINK THAT'S A RED HERRING, THAT 17 PARTICULAR POINT. 18 BY MS. DRYOVAGE: 19 Q. WELL, THE EXISTENCE OF -- THE PERCENTAGE OF POSITIONS THAT 20 THE USGS HAS FOR HIGH-LEVEL PH.D. GEOLOGISTS AND GEOPHYSICISTS, 21 THAT WASN'T SOMETHING THAT YOU STUDIED IN MAKING YOUR ANALYSIS. 22 A. WELL, LET ME PUT IT THIS WAY: I DID NOT CONSIDER THE FACT 23 THAT OTHER PEOPLE WERE BEING LET GO FROM THE USGS AS NECESSARILY 24 A -- A FACTOR THAT WOULD ALTER SIGNIFICANTLY THE 25 SUPPLY-AND-DEMAND CONDITIONS IN THE LABOR MARKET FOR PH.D. 1601 UDINSKY - CROSS / DRYOVAGE 1 GEOLOGISTS. AS YOU KNOW -- 2 MS. DRYOVAGE: MOTION TO STRIKE AS NON-RESPONSIVE. 3 Q. I'LL ASK THE QUESTION, AND ASK THAT YOU ANSWER IT. 4 THE COURT: THE MOTION TO STRIKE IS DENIED. THE 5 ANSWER STANDS. IF -- 6 HAVE YOU FINISHED YOUR ANSWER? 7 THE WITNESS: YES, MA'AM. THANK YOU. 8 THE COURT: ALL RIGHT. YOU MAY ASK A DIFFERENT, IF 9 YOU LIKE. 10 BY MS. DRYOVAGE: 11 Q. YOU DID NOT STUDY THE NUMBER OF GEOLOGY POSITIONS THAT WERE 12 VACANT AND AVAILABLE FOR PEOPLE TO APPLY IN 1995, DID YOU? 13 A. YES AND NO. AND WE DISCUSSED THIS IN MY DEPOSITION. I 14 CAN'T TELL YOU THE EXACT NUMBER, BUT BY VIRTUE OF LOOKING AT THE 15 PUBLICATIONS WHICH I MENTIONED IN MY DEPOSITION WHICH I BROUGHT 16 TO THE DEPOSITION, SPEAKING WITH DR. CARR, I CONCLUDED THAT IT 17 WAS A GOOD JOB MARKET FOR GEOLOGISTS AT THAT TIME. YOU KNOW, 18 THERE WERE OTHER THINGS, BIG THINGS HAPPENING. 19 FOR EXAMPLE, YUCCA MOUNTAIN AND -- NEAR LAS VEGAS, 20 THERE WERE BIG PROJECTS THAT WERE HAPPENING IN THE GEOLOGICAL 21 AREA THAT REQUIRED GEOLOGISTS TO WORK. SO IT'S NOT AS IF THIS 22 FIELD WAS SOMEHOW BEING DRIED UP. AND, IN FACT, GEOLOGY IS A 23 VERY GOOD FIELD NOWADAYS. 24 ONE REASON IS THE ENVIRONMENTAL IMPACT STUDIES AND 25 THE NEED TO DEAL WITH WATER QUALITY AND VARIOUS OTHER ISSUES 1602 UDINSKY - CROSS / DRYOVAGE 1 WHICH ACTUALLY MAKE THE GEOLOGICAL PROFESSION A VERY GOOD AND 2 IMPORTANT PROFESSION TODAY AND FOR THE FUTURE. 3 Q. OKAY. YOU DID NOT CONSIDER THE SITUATION IN THE BAY AREA 4 AND IN NORTHERN CALIFORNIA IN MAKING YOUR ANALYSIS, DID YOU, 5 REGARDING THE AVAILABILITY OF GEOLOGISTS POSITIONS? 6 A. THAT'S RIGHT. IN MY OPINION, THE APPROPRIATE JOB SEARCH FOR 7 A GEOLOGIST BASED UPON THEIR NORMAL AND ORDINARY PATTERN FOR A 8 NORMAL GEOLOGIST, FOR THE AVERAGE GEOLOGIST, IS A MUCH WIDER NET 9 FOR THEIR -- NOT ONLY THEIR WORK AND WHERE THEY ACTUALLY WORK 10 BUT ALSO WHERE THEIR JOBS ARE LOCATED. 11 Q. SO UNDER YOUR ANALYSIS, YOU CONTRADICT WHAT IS IN THE CODE 12 OF FEDERAL REGULATIONS IN TERMS OF WHAT A FEDERAL EMPLOYEE IS 13 REQUIRED TO DO TO MITIGATE THEIR DAMAGES, WHICH IS TO FIND A 14 COMPARABLE POSITION WITHIN THE COMMUTING AREA. 15 MR. SALTIEL: OBJECTION, CALLS FOR A LEGAL 16 CONCLUSION. 17 THE COURT: SUSTAINED. 18 BY MS. DRYOVAGE: 19 Q. ISN'T IT A FACT THAT YOU DID NOT FIND IT NECESSARY OR 20 CONSIDER IT IMPORTANT TO FOCUS ON THE GEOGRAPHIC AREA WHICH WE 21 REFERRED TO AS THE BAY AREA, DID YOU? 22 MR. SALTIEL: OBJECTION, ASKED AND ANSWERED. 23 THE COURT: SUSTAINED. 24 BY MS. DRYOVAGE: 25 Q. NOW, ONE OF THE ASSUMPTIONS THAT YOU MADE WAS THAT THE 1603 UDINSKY - CROSS / DRYOVAGE 1 PLAINTIFFS WERE DESIROUS OF OBTAINING ALTERNATIVE SIMILAR 2 EMPLOYMENT IN THEIR PROFESSION. 3 DID YOU MAKE ANY INDEPENDENT ANALYSIS OF DAVID ADAM'S 4 DESIRE TO OBTAIN COMPARABLE EMPLOYMENT WITHIN THE COMMUTING AREA 5 THAT HE WORKED? 6 A. YOU MEAN -- WAS HE -- I THINK HE WAS WORK -- HE WAS -- YOU 7 MEAN HIS HOME UP IN LAKE COUNTY? HE MOVED UP NORTH, AND YOU'RE 8 SAYING THAT THE ONLY JOBS THAT ARE APPROPRIATE IN MITIGATION 9 WOULD BE COMMUTING AREA AROUND WHEREVER HE DECIDES TO MOVE TO? 10 IS THAT WHAT YOU SAY IS THE APPROPRIATE WAY OF 11 MEASURING MITIGATION EARNING CAPACITY? 12 THE COURT: I'M AFRAID YOU MAY NOT ASK HER 13 QUESTIONS. 14 THE WITNESS: OKAY. I'M SORRY. 15 THE COURT: IF YOU DON'T UNDERSTAND HER QUESTION, 16 YOU CAN SAY SO AND NOT ANSWER IT. 17 THE WITNESS: I'M SORRY. 18 THE COURT: I THINK THAT ISSUE ABOUT -- I THINK THE 19 DIFFERENCE BETWEEN YOU ALL ABOUT THE BAY AREA VERSUS A WIDER 20 AREA HAS BEEN ADEQUATELY PROBED. 21 MS. DRYOVAGE: OKAY. 22 THE COURT: AND WE DON'T NEED TO ASK ABOUT THAT 23 ANYMORE. 24 BY MS. DRYOVAGE: 25 Q. WELL, JUST -- HE DID RAISE AN IMPORTANT POINT, WHICH IS FROM 1604 UDINSKY - CROSS / DRYOVAGE 1 YOUR REVIEW OF DAVID ADAM'S DEPOSITION, YOU NOTICED THAT HE 2 COULD NOT FIND A JOB IN THE BAY AREA AND WAS FORCED TO MOVE OUT 3 OF THE BAY AREA AND SELL HIS HOME TO MOVE TO A PLACE WHERE HE 4 COULD FIND A FEW PART-TIME JOBS. 5 DID YOU NOTICE THAT? 6 A. WELL, I DID REVIEW HIS DEPOSITION. IN MY OPINION, HE DID 7 NOT HAVE A FULL-TIME AND APPROPRIATE JOB SEARCH, THAT HE'S A 8 VERY TALENTED INDIVIDUAL AND HIS SKILLS AND ABILITIES ARE 9 USEFUL, BASED UPON HIS OWN TESTIMONY TO MANY PEOPLE, AND, 10 THEREFORE, LAKE COUNTY WOULD NOT BE THE ONLY OPPORTUNITY FOR 11 EMPLOYMENT. 12 Q. NOW, YOU CRITICIZED DR. THOMAS'S ANALYSIS BECAUSE HE TOOK 13 THE DATA FROM THE PLAINTIFFS, THE ACTUAL DATA OF THEIR -- THE 14 AMOUNT OF MONEY THAT THEY WERE ABLE TO EARN DURING THIS PERIOD 15 OF TIME. 16 YOU -- YOUR ANALYSIS ASSUMES THAT SOMEONE WOULD BE 17 ABLE TO FIND A JOB WITHIN 9 MONTHS. OF THE 14 PLAINTIFFS, WERE 18 THERE ANY PEOPLE THAT IN ACTUALITY WERE ABLE TO FIND A 19 COMPARABLE JOB WITHIN THE TIME PERIOD OF YOUR NINE-MONTH TIME 20 PERIOD? 21 A. YES, I THINK THE BEST EXAMPLE IS DR. LEWIS, WHO OBTAINED A 22 JOB AT THE STANFORD RESEARCH INSTITUTE, AND -- BUT THEN BASED 23 UPON MY REVIEW OF HIS DEPOSITION, HE SAID HE DIDN'T LIKE THE JOB 24 AND RESIGNED, BUT IN MY OPINION, BASED UPON THE TECHNIQUES IN MY 25 PROFESSION, THAT WOULD BE AN EXCELLENT JOB AND FULL MITIGATION 1605 UDINSKY - CROSS / DRYOVAGE 1 THAT ASSUMES HE HAD SUCH A JOB. BUT -- 2 AND THEN FORWARD, IF HE DECIDED TO QUIT, THAT'S NOT 3 SOMETHING THAT SHOULD BE TAKEN INTO CONSIDERATION IN THE 4 ECONOMIC CALCULATION OF DAMAGES IN A LAW CASE. AND -- 5 Q. NOW, YOU WERE -- 6 A. I THINK HE'S ONE OF THE BEST EXAMPLES. I THINK THERE ARE 7 OTHERS AS WELL. MS. DAVIS HAD A VERY GOOD SITUATION AS WELL, 8 SLIGHTLY LONGER THAN NINE MONTHS. BUT YOU WOULD HAVE TO SUGGEST 9 THAT WORK IN THE MONTEREY BAY AQUARIUM RESEARCH INSTITUTE IS A 10 VERY NICE JOB, AND SHE HAD A VERY GOOD SALARY. 11 Q. NOW, WITH RESPECT TO DR. LEWIS, YOU READ IN HIS DEPOSITION 12 THAT HE COULD NO LONGER WORK AT SRI AFTER HE WAS REASSIGNED TO 13 WORK THAT HE FOUND MORALLY OBJECTIONABLE AND THAT HIS JOB AT THE 14 USGS DID NOT PRESENT HIM WITH ANY ETHICAL DILEMMAS THAT WOULD 15 REQUIRE HIM TO QUIT OR RESIGN FROM THAT POSITION. 16 YOU DIDN'T TAKE THOSE FACTORS INTO CONSIDERATION IN 17 DECIDING THAT DR. LEWIS SHOULD HAVE STAYED WORKING AT A JOB THAT 18 HE FOUND MORALLY REPREHENSIBLE, DID YOU? 19 A. WELL, THERE ARE TWO PARTS TO YOUR QUESTION. I'M NOT DEALING 20 WITH THESE NORMATIVE (SIC) ISSUES. I'M ONLY DEALING WITH THE 21 AVAILABILITY OF JOBS, THE AVAILABILITY OF GOOD JOBS FOR PEOPLE 22 OF THIS PARTICULAR CHARACTER. 23 AS, YOU KNOW, THE STANFORD RESEARCH INSTITUTE IS 24 CONSIDERED TO BE ONE OF THE FINEST POSITIONS AVAILABLE IN THE 25 WORLD. SO I MEAN, YOU MAY FIND SOMETHING WRONG WITH SOME THINGS 1606 UDINSKY - CROSS / DRYOVAGE 1 THEY DO, BUT YOU CERTAINLY CAN'T GO WRONG WITH THAT TYPE OF JOB. 2 Q. WELL, EXCEPT THAT DIDN'T DR. LEWIS TESTIFY IN HIS DEPOSITION 3 THAT WHEN HE SAID THAT HE OBJECTED TO BEING REASSIGNED TO THIS 4 PROJECT, THEY TOLD HIM "THAT'S YOUR TWO-WEEK NOTICE" AND PACKED 5 HIM OUT? 6 THE COURT: YOU KNOW, THIS IS NOT APPROPRIATE. 7 MS. DRYOVAGE: OKAY. 8 Q. AND SO FOR DR. LEWIS, INSTEAD OF FINDING THAT HIS TOTAL 9 ECONOMIC LOSS WAS AROUND $900,000, YOU ESTABLISHED IT AS 10 $22,671. 11 A. OVERALL THAT'S CORRECT, AFTER YOU REDUCE BY THE RECEIPT OF 12 PENSION. OH, NO, THERE'S NO RETIREMENT ANNUITY. THERE'S NO 13 RETIREMENT ANNUITY. YOU REDUCE FOR THE SEVERANCE PAY, YES, 14 MA'AM. THAT'S CORRECT. 15 Q. OKAY. AND HE'S ONE OF THE FOUR PLAINTIFFS THAT YOU FIND 16 HAVE AT LEAST SOME MINIMAL AMOUNT OF WAGE LOSS OVER THE PAST 17 SEVEN YEARS? 18 A. THAT'S RIGHT. 19 Q. OKAY. AND FOR MISS DAVIS, YOU FOUND THE TOTAL ECONOMIC LOSS 20 FOR HER WAS $33,609 OVER THE PAST SEVEN YEARS, DID YOU NOT? 21 A. YES. 22 Q. AND YOU DID NOT TAKE INTO CONSIDERATION THE FACT THAT SHE 23 HAS NO GOVERNMENT PENSION. SHE WILL NEVER GET ANOTHER 24 GOVERNMENT PENSION FOR THE REST OF HER LIFE IN SPITE OF THE 25 NUMBER OF YEARS THAT SHE CONTRIBUTED TO THE U.S. GEOLOGICAL 1607 UDINSKY - CROSS / DRYOVAGE 1 SURVEY'S WORK? 2 YOU DIDN'T TAKE THAT INTO CONSIDERATION, DID YOU? 3 A. WELL, SHE WAS WITH THE USGS FOR 13.56 YEARS. THERE MAY WELL 4 BE A PENSION WHICH SHE IS VESTED IN. I DON'T KNOW EXACTLY, BUT 5 MY CALCULATIONS ARE NOT ASSUMING NECESSARILY THAT SHE WOULD OR 6 WOULD NOT RECEIVE A PENSION. 7 IN MY OPINION, HOWEVER, SHE HAS AN EXCELLENT JOB. 8 THE MONTEREY BAY AQUARIUM RESEARCH INSTITUTE WOULD BE CONSIDERED 9 A PLUM JOB, AND IT WOULD BE HARD TO SUGGEST THERE'S AN ECONOMIC 10 LOSS IN THIS TYPE OF SITUATION. HOWEVER, MY NUMBERS DO COME OUT 11 FOR ALICE DAVIS WITH A NET LOSS OF 33,069. 12 I WOULD AGREE WITH YOU, THE PRIMARY REASON IS THAT 13 THERE'S NO PENSION OFFSET WHICH OCCURS FOR SOME OF THE OTHER 14 PEOPLE WHO ACTUALLY RETIRED. BUT THOSE PEOPLE WITH NO PENSION 15 OFFSET, WITH NO RECEIPT OF PENSION, THERE TENDS TO BE A HIGHER 16 PROBABILITY AN ACTUAL ECONOMIC LOSS; THAT IS CORRECT. 17 Q. NOW, YOUR ASSUMPTION THAT THERE'S FULL MITIGATION IN THREE 18 YEARS AFTER REHIRE AND THAT THE PER -- ALL OF THE PLAINTIFFS 19 SHOULD HAVE GOTTEN ANOTHER JOB WITHIN NINE MONTHS. DO YOU KNOW 20 OF ANY GS14, -15 OR -16 THAT WERE -- OF THE HUNDRED THAT WERE 21 RIF'ED BY THE U.S. GEOLOGICAL SURVEY IN 1995 THAT FULLY 22 MITIGATED WITHIN THREE YEARS? 23 A. WELL, YOU'VE RAISED THE BAR BY SAYING CERTAIN GS LEVELS, 24 ET CETERA. I DID MENTION TO YOU THAT I BELIEVE THAT MR. -- THAT 25 DR. LEWIS MITIGATED WHEN HE WORKED AT STANFORD RESEARCH 1608 UDINSKY - CROSS / DRYOVAGE 1 INSTITUTE. I DID MENTION TO YOU THAT I BELIEVE ALICE DAVIS HAS 2 MITIGATED AS WELL, SO THERE ARE TWO JUST IN THE PLAINTIFFS. 3 Q. BUT YOU'RE ASSUMING THAT THEY WOULD HAVE FULLY MITIGATED IN 4 TERMS OF THEIR FUTURE LOSSES AS WELL AND THEIR LOSS OF 5 RETIREMENT, SPECIFICALLY. 6 A. EFFECTIVELY. THESE TWO PEOPLE DO ILLUSTRATE WHAT IS 7 POSSIBLE OUT THERE IF YOU ENGAGE IN A REASONABLE JOB SEARCH 8 EFFORT. THESE TWO PEOPLE ILLUSTRATE THAT IT'S NOT AS IF THE 9 GEOLOGICAL OCCUPATION IS SOME KIND OF MINOR, DEPLETED, 10 DECREASING OCCUPATION. THE REVERSE IS TRUE. IT'S ONE OF THE 11 MOST HIGHLY DEMANDED OCCUPATIONS. 12 I GAVE AN EXAMPLE. THINGS LIKE YUCCA MOUNTAIN, THE 13 URANIUM DISPOSAL. ANOTHER EXAMPLE, WATER QUALITY, MINERAL 14 EXPLORATION. THESE ARE TREMENDOUS ISSUES TODAY. 15 WE'RE DEPENDENT UPON MIDDLE EAST OIL, THE MINERAL 16 EXPLORATION. EXPLORATION IN THE FUTURE IS A TREMENDOUS PROBLEM 17 FOR OUR SOCIETY. THEREFORE THE DEMAND FOR GEOLOGISTS WOULD ONLY 18 INCREASE IN THE FUTURE. SO THIS IS NOT A MINOR, DECREASING, 19 DEPLETED OCCUPATION WE'RE DEALING WITH HERE. IT'S ONE OF THE 20 PROMINENT OCCUPATIONS IN SOCIETY. 21 I'M ASSUMING THESE INDIVIDUALS ARE HIGHLY QUALIFIED, 22 AND THAT'S IMPORTANT TO MY ASSUMPTIONS. 23 Q. SO WHAT DID ALL OF THE PLAINTIFFS DO WRONG IN THEIR JOB 24 SEARCH GIVEN YOUR ASSUMPTIONS THAT THEIR WORK WAS NEEDED, THEY 25 WERE HIGHLY RESPECTED, MANY OF THEM HAD WORLDWIDE REPUTATIONS, 1609 UDINSKY - CROSS / DRYOVAGE 1 AND NONE OF THEM, BASED ON THE REALITY OF THE SITUATION, WERE 2 ABLE TO FULLY MITIGATE WITHIN THE LAST SEVEN YEARS? 3 A. SIMPLY PUT, THEY DID NOT ENGAGE IN A NORMAL AND ORDINARY JOB 4 SEARCH, WHICH IS NORMAL AND ORDINARY AND EXPECTED WITHIN THEIR 5 PROFESSION, AND THIS JOB SEARCH WAS NOT FULL-TIME. THAT'S THE 6 BOTTOM LINE. 7 Q. NOW, YOU READ THEIR DEPOSITIONS IN WHICH EACH OF THE 8 PLAINTIFFS USED THEIR NETWORKS, READ PROFESSIONAL JOURNALS, AND 9 CONTINUED TO KEEP ABREAST OF DEVELOPMENTS IN THEIR FIELD, DID 10 YOU NOT? 11 MR. SALTIEL: OBJECTION, OVERLY BROAD AND VAGUE AS 12 TO ALL THE PLAINTIFFS. 13 THE COURT: SUSTAINED. 14 MS. DRYOVAGE: OKAY. 15 BY MS. DRYOVAGE: 16 Q. DAVID ADAMS WAS ONE OF THE PEOPLE WHO -- WHOSE DEPOSITION 17 YOU READ, WAS HE NOT? 18 A. YES, THAT IS CORRECT. 19 Q. AND HE TOOK ADDITIONAL COMPUTER COURSES AT SANTA CLARA 20 UNIVERSITY, DID HE NOT? 21 A. I'D HAVE TO -- (REVIEWING DOCUMENTS.) 22 I HAVE HIS RESUME. 23 (PAUSE IN THE PROCEEDINGS.) 24 THE WITNESS: LET'S SEE. HE DID TAKE A COURSE IN 25 COMPUTER TECHNIQUES FROM THE UNIVERSITY OF SANTA CLARA, YES, 1610 UDINSKY - CROSS / DRYOVAGE 1 MA'AM, ACCORDING TO HIS DEPOSITION. 2 BY MS. DRYOVAGE: 3 Q. HE ALSO TOOK SMOKE TRAINING WHILE WORKING FOR THE 4 LAKE COUNTY AIR QUALITY MANAGEMENT DISTRICT? 5 A. YES, HE DID. 6 Q. HE PUBLISHED SIX PAPERS IN HIS FIELD THAT DEALT WITH 7 STRATIGRAPHIC RECORDS OF CLIMATE CHANGE BASED ON FOSSIL POLLEN? 8 THE COURT: YEAH, I DON'T THINK THAT THAT WAS THE 9 PART THAT THE -- MR. UDINSKY WAS QUARRELING WITH. HE WAS 10 QUARRELING WITH THE NATURE OF THE JOB SEARCH AND THE AMOUNT OF 11 TIME SPENT ON THE JOB SEARCH. 12 BY MS. DRYOVAGE: 13 Q. OKAY. 14 THE COURT: NOT ON HIS QUALIFICATIONS? 15 BY MS. DRYOVAGE: 16 Q. WHAT DID DR. ADAMS DO IN TERMS OF THE AMOUNT OF TIME THAT HE 17 TESTIFIED HE SPENT ON HIS JOB SEARCH? 18 A. WELL, I DON'T THINK HE DID A JOB SEARCH. YOU KNOW, MANY OF 19 US HAVE TO FACE THE NEED OF LOOKING FOR A JOB. IT'S NOT A NICE 20 THING TO DO. IT'S A DIFFICULT THING TO DO. BUT SOME OF US HAVE 21 BEEN IN THAT POSITION WHERE WE ARE FORCED TO LOOK FOR A JOB. 22 AND THAT'S NORMAL FOR PROFESSIONAL PEOPLE. 23 AND LOOKING FOR A JOB HAS CERTAIN RELATIVELY 24 STRAIGHTFORWARD CHARACTERISTICS. IT MEANS THAT YOU LOOK THROUGH 25 THE PROFESSIONAL JOURNALS WITH THE JOB POSTINGS. YOU GO TO 1611 UDINSKY - CROSS / DRYOVAGE 1 PROFESSIONAL MEETINGS AND LOOK FOR JOBS. YOU WRITE LETTERS 2 REGULARLY. YOU TELEPHONE REGULARLY. IN TERMS OF A JOB SEARCH, 3 WE'RE LOOKING AT AT LEAST 30 HOURS A WEEK. THAT'S 30 HOURS OF 4 PROFESSIONAL WORK PER WEEK. THAT'S THE TYPE OF JOB FILE I'D 5 LIKE TO SEE. 6 IT WOULD MEAN GOING PLACES AND DOING THINGS THAT ARE 7 APPROPRIATE FOR A PERSON WHO'S SEEKING ALTERNATIVE WORK PAYING 8 THEM WHAT THEY EARNED BEFORE. 9 Q. NOW, YOU READ IN HIS DEPOSITION THAT HE BEGAN A JOB SEARCH 10 IN AUGUST 1995, JUST AS YOU SAID WOULD BE EXPECTED OF SOMEONE IN 11 HIS SITUATION; DID YOU NOT? 12 A. WELL, FRANKLY, I HAVE NOT SEEN JOB SEARCH RECORDS THAT ARE 13 SUBSTANTIAL OF THIS NATURE. I KNOW HE MADE CERTAIN STATEMENTS 14 IN HIS DEPOSITION, BUT I HAVE NOT SEEN THE JOB SEARCH FILE WHICH 15 WOULD HAVE BEEN APPROPRIATE UNDER THE CIRCUMSTANCES IF A PERSON 16 WAS ENGAGING IN A FULL-TIME JOB SEARCH EFFORT. 17 I REALLY DO NOT WANT TO CRITICIZE DR. ADAM. HE'S A 18 VERY QUALIFIED INDIVIDUAL. I'M MERELY TALKING ABOUT THE JOB 19 SEARCH EFFORT WHICH HE DID, COMPARED TO WHAT IS NORMAL AND 20 ORDINARY FOR PEOPLE WHO ARE ENGAGING IN A FULL-TIME JOB SEARCH 21 EFFORT. 22 I DID NOT SEE THAT. I DID NOT SEE A PROFESSIONAL JOB 23 SEARCH EFFORT IN THE GEOLOGICAL PROFESSION. 24 Q. YOU READ IN HIS DEPOSITION THAT HE LOOKED AT ADS FOR 25 COMPUTER-RELATED JOBS IN LOCAL NEWSPAPERS AS WELL AS GEOLOGISTS' 1612 UDINSKY - CROSS / DRYOVAGE 1 JOBS? 2 A. YES, BUT THAT'S NOT AN APPROPRIATE JOB SEARCH. HE'S A -- 3 HE'S A PH.D. GEOLOGIST. I'M ASSUMING THAT HE'S A QUALIFIED, 4 HIGHLY COMPETENT PH.D. GEOLOGIST. HE SHOULD BE LOOKING FOR 5 ACADEMIC POSITIONS THAT ARE APPROPRIATE FOR A MAN OF HIS 6 STATURE. HE SHOULD BE LOOKING FOR PRIVATE INDUSTRY POSITIONS 7 THAT ARE APPROPRIATE FOR A MAN OF HIS STATURE. FREQUENTLY THESE 8 ARE NOT FOUND IN LOCAL NEWSPAPERS. 9 Q. YOU ALSO READ HIS DEPOSITION WHERE HE TESTIFIED THAT HE LOOK 10 AT THE ADS IN FIELD PUBLICATIONS, SUCH AS THE "GEOPHYSICAL 11 UNION" AND SCIENCE MAGAZINE, THAT WERE SPECIALTY PUBLICATIONS IN 12 HIS FIELD? 13 A. YES, AND THAT'S THE TYPE OF THING DO YOU. AND THEN YOU 14 WRITE THESE THINGS DOWN, YOU KEEP A RECORD. YOU HAVE A TICKLER 15 FILE. YOU PUT IT ON A CALENDAR. YOU CONTACT PEOPLE. YOU KEEP 16 RECORDS OF WHO YOU CONTACTED. YOU RECONTACT THEM. IN OUR TYPE 17 OF PROFESSION, IN THE PH.D.-LEVEL PROFESSION, THAT'S HOW IT'S 18 DONE. YOU MAKE YOUR CONTACTS, AND THEN YOU -- IT'S LIKE A -- 19 FISHING, YOU KNOW. YOU PUT YOUR HOOK IN THE WATER IN DIFFERENT 20 PLACES, AND THEN YOU CONTINUE CONTACTING PEOPLE, AND EVENTUALLY, 21 THIS LEADS TO A JOB. 22 I DID NOT SEE THAT TYPE OF ACTIVITY HERE. I AGREE 23 THAT THERE WERE CERTAIN THINGS WHICH HE SAID HE DID IN HIS 24 DEPOSITION, BUT I DID NOT SEE A FULL-TIME PROFESSIONAL JOB 25 SEARCH EFFORT HERE. 1613 UDINSKY - CROSS / DRYOVAGE 1 Q. HE ALSO TESTIFIED THAT HE WENT TO JOB FAIRES, AND HE 2 NETWORKED WITH CONTACTS THAT HE HAD IN HIS 25 YEARS IN THE 3 FIELD? 4 A. YES, I READ THAT IN HIS DEPOSITION. 5 Q. HE ALSO TESTIFIED ABOUT REGISTERING WITH ON-LINE EMPLOYMENT 6 SERVICES AND SUBMITTING HIS RESUME TO AN EMPLOYMENT AGENCY. 7 IS THAT CONSISTENT WITH YOUR ANALYSIS, THAT HE DIDN'T 8 DO ENOUGH TO FIND A JOB GIVEN THE WAY IN WHICH JOBS AT HIS LEVEL 9 WERE SOUGHT IN 1995? 10 A. YOU KNOW, I DON'T MEAN TO SAY, QUOTE, "HE DID NOT DO 11 ENOUGH." THAT'S A TYPE OF PEJORATIVE THING. I HAVE A HIGH 12 RESPECT FOR THESE INDIVIDUALS. THEY'RE FREE TO DO WHAT THEY 13 WANT TO DO. I'M MERELY CONTRASTING WHAT THEY DID WITH A 14 FULL-TIME PROFESSIONAL JOB SEARCH EFFORT, GIVEN THEIR HIGH LEVEL 15 OF QUALIFICATIONS. 16 IT'S IMPORTANT TO REMEMBER THESE PEOPLE ARE NOT, YOU 17 KNOW, AVERAGE EMPLOYEES. THESE ARE EXTREMELY HIGHLY QUALIFIED 18 PEOPLE WHO HAVE A TREMENDOUS AMOUNT OF EXPERIENCE. YOU WOULD 19 ANTICIPATE PEOPLE AT THAT LEVEL TO HAVE A SOPHISTICATED APPROACH 20 TO THE JOB MARKET. I DID NOT SEE THAT HERE, AND I FELT THAT IT 21 WAS SOMEWHAT LIMITED TO LAKE COUNTY. BUT I THINK HE'S DONE WELL 22 IN TERMS OF FINDING A FEW NICE JOBS IN THE LAKE COUNTY AREA. 23 IT'S A GREAT RETIREMENT, NICE SITUATION. I WISH HIM 24 WELL. I THINK HE'S DOING GREAT. BUT IT'S NOT, YOU KNOW, A 25 FULL-TIME PROFESSIONAL JOB SEARCH EFFORT. AND, THEREFORE, I DO 1614 UDINSKY - CROSS / DRYOVAGE 1 NOT BELIEVE THE CALCULATION OF ECONOMIC LOSS SHOULD BE BASED 2 UPON WHATEVER HE WANTED TO DO, BUT, RATHER, IT SHOULD BE BASED 3 UPON WHAT WOULD REASONABLY HAVE BEEN OBTAINED BASED UPON A 4 NORMAL AND ORDINARY FULL-TIME PROFESSIONAL JOB SEARCH EFFORT. 5 Q. OKAY. YOU'RE AWARE FROM READING HIS DEPOSITION THAT HE 6 APPLIED FOR TWO JOBS WITH THE OHLONE JUNIOR COLLEGE IN FREMONT 7 IN GEOLOGY AND GEOGRAPHY? 8 A. YES. 9 Q. AND THAT HE ALSO SUBMITTED A PROJECT PROPOSAL TO THE 10 NATIONAL SCIENCE FOUNDATION? 11 A. YES. 12 Q. AND HE WAS NOT ABLE IN THE TIME IMMEDIATELY FOLLOWING -- THE 13 THREE-YEAR PERIOD THAT YOU USE TO FIND ANY COMPARABLE JOB OR ANY 14 PART-TIME LESS-THAN-COMPARABLE JOB IN THE BAY AREA. 15 DID YOU TAKE THAT INTO ACCOUNT, HIS SPECIFIC 16 EXPERIENCE IN SEEKING TO GET RE-EMPLOYED? 17 THE COURT: I THINK WE'RE GETTING A LITTLE 18 REPETITIVE HERE. I THINK THE ANSWER IS GOING TO BE THE SAME AS 19 LAST TIME YOU ASKED A SIMILAR QUESTION. 20 MS. DRYOVAGE: WELL, LET'S TAKE ANOTHER EXAMPLE. 21 Q. JAMES DRINKWATER, YOU READ HIS DEPOSITION, DID YOU NOT? 22 A. YES. 23 Q. AND YOU SAW THAT HE MADE A LISTING OF VACANCIES FOR USGS 24 PHYSICAL SCIENCE POSITIONS IN THE WESTERN REGION IN 1996? 25 A. YES. WAIT A MINUTE. LET ME -- 1615 UDINSKY - CROSS / DRYOVAGE 1 Q. AND -- 2 A. (PAUSE IN THE PROCEEDINGS.) 3 EXCUSE ME. I'M JUST TRYING TO -- MY NOTES ON HIM. 4 THE WITNESS: WOULD YOU PLEASE REPEAT THE QUESTION 5 AGAIN. I'M SORRY TO DELAY YOU. 6 MS. DRYOVAGE: CAN YOU READ THAT BACK? 7 THE WITNESS: YOU'RE ASKING ABOUT MR. DRINKWATER. 8 MS. DRYOVAGE: YES. 9 THE WITNESS: COULD YOU PLEASE REPEAT THE QUESTION. 10 MS. DRYOVAGE: THE COURT REPORTER WILL REPEAT IT FOR 11 YOU. 12 THE WITNESS: OKAY. THANK YOU. 13 (RECORD READ.) 14 THE WITNESS: SEE, I ACTUALLY BROUGHT DRINKWATER'S 15 JOB SEARCH FILE WITH ME BECAUSE I DO THINK OF ALL THE 16 PLAINTIFFS, HE PROBABLY HAD THE MOST ACTIVE JOB SEARCH, SO 17 IT -- HOWEVER, THE PROBLEM IS HE LIMITED HIMSELF TO GOVERNMENT 18 JOBS. 19 MR. DRINKWATER IS A QUALIFIED PERSON AT THE MASTER'S 20 DEGREE LEVEL, AND I BELIEVE HIS JOBS -- JOB SEARCH COULD BE IN 21 PRIVATE INDUSTRY AND NOT JUST IN GEOLOGY BUT ALSO IN OTHER 22 SCIENTIFIC AREAS. SO HE DID HAVE A -- MADE A LOT OF EFFORT IN 23 THE FEDERAL GOVERNMENT AREA, BUT HE LIMITED HIMSELF TO FEDERAL 24 GOVERNMENT. 25 ALSO HE -- HE, UNFORTUNATELY, HAD A MOTHER WHO WAS 1616 UDINSKY - CROSS / DRYOVAGE 1 SICK IN WISCONSIN. HE HAD TO MOVE THERE. SO THERE WERE MANY 2 FACTORS WHICH INTERRUPTED HIS JOB SEARCH, LIMITED HIS JOB 3 SEARCH. AND SO ALTHOUGH I FELT THAT HE HAD ONE OF THE BEST JOB 4 SEARCHES, IT WAS STILL VERY LIMITED AND INAPPROPRIATE FOR THE 5 CALCULATION OF MITIGATION EARNING CAPACITY. 6 BY MS. DRYOVAGE: 7 Q. WELL, IN FACT, HE APPLIED FOR OVER 20 POSITIONS FOLLOWING -- 8 IN THE YEAR FOLLOWING THE RIF, DID HE NOT? 9 A. THAT MAKES SENSE. JUST LOOKING OVER THIS FILE, I WANTED TO 10 POINT OUT THAT 20 IS ACTUALLY A VERY LOW NUMBER. WE'RE TALKING 11 HERE ABOUT A FULL-TIME PROFESSIONAL JOB SEARCH. YOU COULD APPLY 12 FOR 20 POSITIONS, CERTAINLY, WITHIN ONE WEEK. AND SO WHEN 13 YOU'RE TALKING ABOUT A FULL-TIME JOB SEARCH, AS WOULD OCCUR FOR 14 AN ATTORNEY, FOR EXAMPLE, OR ANY PROFESSIONAL PERSON, YOU COULD 15 BE LOOKING AT MANY MORE THAN JUST 20. 16 Q. AND YOU'RE AWARE THAT THE GEOGRAPHICAL SPAN THAT HE WAS -- 17 CONDUCTED HIS JOB SEARCH IN THE YEAR FOLLOWING THE RIF WAS 18 ARIZONA, OREGON, CALIFORNIA, WASHINGTON, IDAHO, HAWAII, ARE YOU 19 NOT? 20 A. I HAVEN'T LOOKED AT THESE APPLICATIONS AT THAT LEVEL, SO I 21 CAN'T TELL YOU WITH CERTAINTY. WHAT I CAN SAY IS THAT HE DID DO 22 A GOOD JOB LOOKING IN THE GOVERNMENT SECTOR. MY PROBLEMS WITH 23 HIS JOB SEARCH WERE THAT THEY WERE -- FOR A PERSON OF HIS 24 QUALIFICATIONS AND HIS ABILITIES, THERE WERE MANY OTHER JOBS 25 AVAILABLE BESIDES THE GOVERNMENT AND THAT HE SHOULD HAVE -- OR 1617 UDINSKY - CROSS / DRYOVAGE 1 NOT THAT HE SHOULD HAVE -- BUT IF HE WERE INTERESTED IN ENGAGING 2 IN A FULL-TIME PROFESSIONAL JOB SEARCH, THAT TO FULLY MITIGATE 3 HIS ECONOMIC LOSS, THEN HE WOULD HAVE LOOKED WIDER. HE WOULD 4 HAVE CAST A WIDER NET. THAT'S MY OPINION WITH RESPECT TO 5 MR. DRINKWATER. 6 Q. NOW, HE CAST A WIDE NET IN TERMS OF BEING WILLING TO APPLY 7 FOR AND ACTUALLY APPLYING FOR GRADES GS5 UP TO GS13? 8 THE COURT: WELL, MS. DRYOVAGE, YOU'RE GOING TO GET 9 THE SAME ANSWER. 10 MS. DRYOVAGE: OKAY. 11 THE COURT: THOSE THINGS ARE ALL IN FEDERAL 12 EMPLOYMENT. HE'S GOING TO TELL YOU AGAIN THAT HE THINKS HE DID 13 A GOOD JOB LOOKING FOR FEDERAL EMPLOYMENT BUT DIDN'T LOOK 14 BROADLY ENOUGH. 15 SO IT'S REALLY NOT USEFUL TO GO OVER THESE THINGS 16 OVER AND OVER AGAIN. 17 MS. DRYOVAGE: OKAY. 18 THE COURT: IF YOU WANT TO HEAR HIS OPINION ON THE 19 DEFICIENCIES OF EACH OF THE PLAINTIFFS' JOB SEARCH, YOU COULD 20 PROBABLY ASK HIM THAT, AND IT WOULD BE A LITTLE QUICKER, IF YOU 21 REALLY WANT TO GO THROUGH THAT. BUT I THINK WE HAVE A GENERAL 22 PICTURE OF WHAT HE THINKS. 23 BY MS. DRYOVAGE: 24 Q. AND YOU'RE AWARE THAT JAMES DRINKWATER ALSO APPLIED IN OTHER 25 GOVERNMENT AGENCIES FOR -- 1618 UDINSKY - CROSS / DRYOVAGE 1 THE COURT: WELL, MS. DRYOVAGE -- 2 MS. DRYOVAGE: OKAY. 3 THE COURT: -- I JUST TOLD YOU WHAT YOU'RE GOING TO 4 HEAR. YOU'RE GOING TO HEAR THAT YES, HE DID APPLY IN THE 5 GOVERNMENT BUT HE DIDN'T APPLY ELSEWHERE, AND WE REALLY DON'T 6 NEED TO HEAR THAT AGAIN. 7 MS. DRYOVAGE: OKAY. 8 Q. NOW, YOUR ANALYSIS ALSO ASSUMES THAT THE BUDGET PICTURE AT 9 THE USGS CONTINUED TO DECLINE AFTER THE RIF NOTICE WAS SENT OUT 10 IN MARCH OF 1995? 11 A. I DON'T KNOW IF I COULD SAY, QUOTE, "CONTINUED TO DECLINE." 12 I WOULD SAY I'VE ACCEPTED AS TRUE THAT -- A MEMO, WHICH I 13 PREVIOUSLY REFERENCED, REGARDING THE SEVERE BUDGETARY 14 LIMITATIONS. AS TO EXACTLY WHETHER IT DECLINED OR INCREASED 15 SLIGHTLY, I'M NOT AWARE. 16 Q. OKAY. 17 THE COURT: AND THE EFFECT THAT HAD ON YOUR ANALYSIS 18 WAS NOT TO USE THE STEPS, CORRECT? 19 THE WITNESS: IN THE NORMAL ORDER. 20 THE COURT: RIGHT. 21 THE WITNESS: THAT WOULD BE CORRECT. ALSO -- 22 THE COURT: SO LET'S NOT GO BACK OVER THAT AGAIN, 23 PLEASE. WE ALL KNOW THAT THERE'S A DIFFERENCE BETWEEN THE TWO 24 IN THAT ONE USED THE STEPS AND ONE DIDN'T, AND WHETHER IT WAS 25 APPROPRIATE TO ASSUME THAT THE STEPS HAVE TO BE FOLLOWED, I'M 1619 UDINSKY - CROSS / DRYOVAGE 1 THINKING WILL BE A QUESTION OF LAW, WHICH I'M HOPING WE'LL HAVE 2 THE ANSWER TO. SO I DON'T THINK THERE'S ANY POINT IN 3 DISCUSSING THAT AREA ANYMORE. 4 MS. DRYOVAGE: OKAY. THERE -- THERE'S ALSO HIS 5 ASSUMPTION THAT THE -- 6 THE COURT: WELL, IF YOU HAVE A DIFFERENT QUESTION, 7 GO AHEAD AND ASK IT. BUT PLEASE DON'T ASK QUESTIONS THAT WILL 8 LEAD US TO HEAR THE SAME THING AGAIN. 9 BY MS. DRYOVAGE: 10 Q. SO YOU WERE NOT TOLD BY DR. CARR THAT THE BUYOUTS RESULTED 11 IN A SAVINGS OF ABOUT -- BETWEEN 20 AND $25 MILLION A YEAR FOR 12 THE -- 13 THE COURT: SEE, THAT DOESN'T MATTER, BECAUSE THE 14 ONLY EFFECT THAT I CAN TELL OF HIS ASSUMPTIONS ABOUT THE POOR 15 BUDGET SITUATION WAS HIS DECISION NOT TO APPLY THE STEP 16 INCREASES. SO I DON'T THINK WE NEED TO TALK ABOUT THAT WHOLE 17 AREA UNLESS THERE'S SOME OTHER EFFECT THAT THE BUDGET SITUATION 18 HAD ON HIS ANALYSIS THAT I'M MISSING. 19 MS. DRYOVAGE: OKAY. 20 Q. WELL, IS THERE -- ASSUMING THAT THE BUDGETARY PROBLEMS WENT 21 AWAY AND THERE WAS NOT THE DIRE NEED TO CONDUCT A RIF, WOULD 22 THAT HAVE CHANGED YOUR ANALYSIS IN ANY WAY? 23 A. WELL, I BELIEVE IT WOULD. IT WOULD CHANGE THE WHOLE CASE. 24 MS. DRYOVAGE: NO FURTHER QUESTIONS. 25 THE COURT: WHAT I'M NOT CLEAR ON IS THE EFFECT OF 1620 UDINSKY - CROSS / DRYOVAGE 1 THE LOSS OF THE PENSIONS. SETTING ASIDE YOUR VIEW THAT THE 2 PLAINTIFFS DIDN'T ADEQUATELY MITIGATE THEIR DAMAGES, DO YOU 3 DISAGREE IN ANY WAY WITH DR. THOMAS'S ANALYSIS OF THE LOST 4 PENSION BENEFITS? 5 THE WITNESS: WELL, I WOULD INSOFAR AS IN ORDER TO 6 CALCULATE THE PENSION, HE HAS EXTRAPOLATED OUT EARNINGS ALL THE 7 WAY THROUGH THE END OF EMPLOYMENT. ASSUMING THAT THESE PEOPLE 8 WOULD HAVE A 100 PERCENT PROBABILITY OF REMAINING EMPLOYED AT 9 THE USGS AND THAT THEY WOULD HAVE NECESSARILY ACHIEVED THE STEP 10 INCREASES THAT WE'RE TALKING ABOUT. 11 ONCE YOU MAKE THAT ASSUMPTION, IT'S FAIRLY 12 STRAIGHTFORWARD AS TO WHAT THE HIGH THREE YEARS WOULD BE, 13 ET CETERA. AND I'M QUESTIONING THE CAPABILITY OF THE 14 GOVERNMENT TO PAY OUT THESE PENSIONS OR THESE STEP INCREASES, 15 GIVEN THE BUDGETARY LIMITATIONS. 16 FOR EXAMPLE, I'VE WORKED WITH THE CITY OF OAKLAND, 17 FOR EXAMPLE, FOR THE FIRE DEPARTMENT WITH RESPECT TO SIMILAR 18 BUDGETARY -- 19 THE COURT: FEDERAL GOVERNMENT'S DOING A LITTLE 20 BETTER THAN THE CITY OF OAKLAND. 21 BUT WHAT I'M GETTING AT IS, IS THERE A DIFFERENCE IN 22 THE CALCULATION WHEN WE SET ASIDE THE DIFFERENCES IN THE 23 ASSUMPTIONS? AND I TAKE IT THAT THERE IS NOT. 24 THE WITNESS: WELL, I AGREE WITH THE FORMULA THAT HE 25 USED. I DISAGREE AS TO WHAT THE VALUE OF THE PENSION WOULD BE. 1621 UDINSKY - CROSS / DRYOVAGE 1 I DISAGREE WITH HIS VALUATION PROCEDURES, GIVEN THAT I DO NOT 2 BELIEVE THESE PEOPLE WOULD HAVE ACHIEVED THE SALARIES THAT 3 THEY'RE SUGGESTING, AND I DO NOT BELIEVE THAT ALL OF THESE 4 POSITIONS COULD HAVE BEEN MAINTAINED. 5 THE COURT: ALL RIGHT. BUT ASSUMING THAT THEY WERE, 6 HIS CALCULATIONS ARE CORRECT? 7 THE WITNESS: WELL, TO BE FRANK WITH YOU, MA'AM, I 8 DID NOT HAVE HIS UNDERLYING CALCULATIONS. I CAN'T SAY THEY'RE 9 CORRECT, BUT I BELIEVE HE'S A COMPETENT ECONOMIST, AND I'VE 10 KNOWN HIM FOR SOME TIME. I HAVE NO QUESTION OF HIS 11 CALCULATIONS. 12 THE COURT: ALL RIGHT. 13 NOW, WHEN YOU CALCULATED OR WHEN YOU -- WELL, 14 CALCULATED BASED ON ASSUMPTION THAT PEOPLE SHOULD HAVE GOT 15 OTHER JOBS WHICH WOULD EVENTUALLY HAVE CAUGHT THEM UP TO THEIR 16 PRIOR SALARIES, DID YOU MAKE AN ASSUMPTION ABOUT WHAT SORT OF 17 PENSION THEY WOULD HAVE GOTTEN AT THOSE HYPOTHETICAL FUTURE 18 JOBS? 19 THE WITNESS: YES, I'M ASSUMING THAT THE PAY PACKAGE 20 WOULD BE EQUIVALENT. NOW, SOMETIMES -- 21 THE COURT: EQUIVALENT TO WHAT? 22 THE WITNESS: TO WHAT THEY HAD BEFORE AT THE 23 GOVERNMENT. THAT IS, THAT THE PENSION MIGHT NOT BE ENTIRELY 24 EQUIVALENT, BUT THEN IT WOULD BE OFFSET BY OTHER FACTORS. 25 IN THIS TYPE OF PROFESSION, THERE ARE MANY FACTORS 1622 UDINSKY - CROSS / DRYOVAGE 1 THAT YOU FIND IN PEOPLE'S PAY PACKAGES. FREQUENTLY, FOR 2 EXAMPLE, WHERE YOU'RE LOCATED. IF YOU GO TO THE NORTH SLOPE OF 3 ALASKA, YOU'RE FREQUENTLY COMPENSATED ADDITIONALLY BECAUSE OF 4 THOSE EGREGIOUS SITUATIONS. SO A PAY PACKAGE IS ADJUSTED. 5 DIFFERENT THINGS ARE UP, AND DIFFERENT THINGS ARE DOWN. 6 I'M ASSUMING THAT THE OVERALL PAY PACKAGE WOULD BE 7 EQUIVALENT, GIVEN THE LEVEL OF SKILLS AND ABILITIES WHICH THEY 8 ARE -- WHICH THEY HAVE. IN OTHER WORDS, THAT THE PAY PACKAGE 9 IS GENERALLY EQUILIBRATED AMONG DIFFERENT INDUSTRIES FOR A 10 GIVEN LEVEL OF SKILL AND ABILITIES. 11 IT MIGHT BE MORE OR LESS IN A PARTICULAR AREA OF THE 12 PAY PACKAGE, BUT FOR CALCULATION PURPOSES, I ASSUMED A 13 6.8 PERCENT BENEFIT FOR THE PENSION. IT'S A SIMILAR PERCENTAGE 14 THAT DR. THOMAS USED IN SOME OF HIS CALCULATIONS. 15 THE COURT: WELL, THAT'S WHAT I'M TRYING TO FIGURE 16 OUT. DID YOU ASSUME THAT THEIR FUTURE PENSIONS WOULD BE 17 6.8 PERCENT OF THEIR SALARIES, OR DID YOU ASSUME THAT THEIR 18 FUTURE PENSION WOULD BE THE SAME AS WHAT THEIR FUTURE PENSIONS 19 WOULD HAVE BEEN IN THE FEDERAL SERVICE? 20 THE WITNESS: I ASSUMED THAT THE -- IN MY 21 CALCULATIONS, I LOOKED AT THE INCREASE IN THEIR PENSION VALUE 22 EACH YEAR HAD THEY REMAINED WITH THE GOVERNMENT. 23 MY CALCULATIONS ONLY GO FOR A FEW YEARS. SO THE 24 QUESTION BECOMES WHAT INCREASE IN PENSION VALUE OCCURS DURING 25 THOSE FEW YEARS. AND I CALCULATED THE INCREASE IN PENSION 1623 UDINSKY - CROSS / DRYOVAGE 1 VALUE DURING THOSE FEW YEARS BASED UPON 6.8 PERCENT OF THEIR 2 SALARY. 3 NOW, AN ALTERNATIVE CALCULATION COULD HAVE BEEN DONE 4 BY PROJECTING THEIR EARNINGS OUT TO RETIREMENT, CALCULATING THE 5 DIFFERENCES BETWEEN A PENSION WITH THOSE FOUR YEARS, WITHOUT 6 THE FOUR YEARS, AND CALCULATING THE DIFFERENCE. AN ALTERNATIVE 7 CALCULATION IS JUST TO USE THE 6.8 PERCENT. IT'S EFFECTIVELY 8 SAYING THAT THE AMOUNT OF CONTRIBUTION INTO THE PENSION PLAN IS 9 EQUIVALENT TO THE FUTURE BENEFITS THAT YOU'D WANTED TO RECEIVE. 10 IN OTHER WORDS, IT'S NOT MAGIC. IT'S A RESULT OF 11 INVESTMENT IN THE PENSION PLAN, AND THE AMOUNT OF INVESTMENT IS 12 EQUIVALENT TO THE PRESENT VALUE OF THE PENSION RESULTING FROM 13 THAT INVESTMENT. 14 THE COURT: ALL RIGHT. DID YOU HAVE ANY FURTHER 15 QUESTIONS? 16 MR. SALTIEL: I HAVE NOTHING ON REDIRECT, YOUR 17 HONOR. 18 MS. DRYOVAGE: I HAVE A POINT, JUST ONE POINT. 19 FURTHER CROSS-EXAMINATION 20 BY MS. DRYOVAGE: 21 Q. YOUR ASSUMPTION THAT THE AMOUNT OF CONTRIBUTIONS INTO THE 22 PENSION PLAN, THAT IS NOT BASED ON ANY ANALYSIS OF THE ACTUAL 23 AGES OF THE PLAINTIFFS, IS IT? 24 A. NO, IT'S JUST BASED UPON THE -- THE -- THE SALARY THAT THEY 25 WERE RECEIVING. THAT IS CORRECT. 1624 UDINSKY - FURTHER CROSS / DRYOVAGE 1 Q. SO THAT YOU DIDN'T DO A SEPARATE CALCULATION FOR JAMES 2 DRINKWATER, WHO'S 20 YEARS YOUNGER THAN MANY OF THE PLAINTIFFS, 3 IN MAKING YOUR ANALYSIS, DID YOU? 4 A. THAT IS CORRECT. I JUST USED 6.8 PERCENT. BUT THEN HE HAD 5 A LOWER SALARY LEVEL AS WELL. THAT IS CORRECT. 6 Q. AND SO THAT FOR THE PLAINTIFFS WHO HAD NOT YET RETIRED, THE 7 LIKELIHOOD OF THE OLDER ONES BEING ABLE TO FIND A COMPARABLE 8 POSITION THAT HAD PENSION BENEFITS AT THE SAME LEVEL THAT THEY 9 WOULD HAVE GOTTEN AS A FEDERAL EMPLOYEE WAS EXTREMELY REMOTE, 10 WAS IT NOT? 11 A. I WOULD SAY IT WOULD BE MORE DIFFICULT. SOMETIMES YOU MAY 12 HAVE TO TAKE A JOB WITHOUT PENSION BENEFITS AS YOU'RE OLDER, BUT 13 I DID INCLUDE THE PENSION BENEFITS IN MY CALCULATION OF LOST 14 EARNING CAPACITY. SO I AM INCLUDING THE LOSS OF PENSION 15 BENEFITS IN MY CALCULATION OF LOST EARNINGS FROM THE USGS. SO 16 THAT IS INCLUDED IN THERE. 17 THE -- I AM ASSUMING THAT THEY WOULD BE ABLE TO CATCH 18 UP TO THEIR PREVIOUS LEVEL AT ALTERNATIVE JOBS. 19 MS. DRYOVAGE: NO FURTHER QUESTIONS. 20 MR. SALTIEL: NOTHING FURTHER. 21 THE COURT: ALL RIGHT. YOU'RE EXCUSED. THANK YOU. 22 THE WITNESS: THANK YOU. 23 THE COURT: DO YOU HAVE ANY MORE WITNESSES? 24 MS. DAW: NO, YOUR HONOR, I JUST WANTED TO SEE IF WE 25 COULD CLARIFY MATTERS WITH RESPECT TO DRS. LEPOWSKY AND PALMER. 1625 UDINSKY - FURTHER CROSS / DRYOVAGE 1 THE COURT: OH. ACTUALLY, WE'RE DUE FOR A BREAK 2 HERE. WHY DON'T WE TAKE A TEN-MINUTE BREAK. 3 (RECESS TAKEN AT 12:31 P.M.) 4 (PROCEEDINGS RESUMED AT 12:44 P.M.) 5 THE COURT: I'M NOT GOING TO SUGGEST WE SING IT TO 6 HER AND MAKE HER TAKE IT DOWN, BUT IT IS RAYNEE'S BIRTHDAY. 7 (OFF-THE-RECORD DISCUSSION.) 8 THE COURT: ALL RIGHT. WHAT ARE WE DOING NEXT AFTER 9 THE BIRTHDAY PARTY? 10 MS. DAW: I JUST WANTED TO SUGGEST WITH RESPECT TO 11 THE LEPOWSKY/PALMER ISSUE THAT WE BE GIVEN SOME PERIOD OF WEEKS 12 AFTER THE TRANSCRIPT FOR PALMER'S TESTIMONY IS PREPARED. I -- 13 AND LEPOWSKY'S FROM THE FIRST DAY THEY TESTIFIED, TO SEE IF WE 14 CAN EXPLORE SOME MECHANISM FOR RESOLVING ANY REMAINING ISSUES 15 ON PAPER THROUGH A DECLARATION OR SOMETHING LIKE OR DUELING 16 DECLARATIONS INSTEAD OF RECONVENING FOR PURPOSES OF FURTHER 17 TESTIMONY, AS IT WOULD SAVE THE EXPENSE OF HAVING TO FLY 18 DR. PALMER BACK FROM FLORIDA. 19 MS. DRYOVAGE: I HAVE NO OBJECTION TO THAT, BUT I 20 WOULD PREFER DR. LEPOWSKY BE ABLE TO COME INTO COURT IF WE ARE 21 NOT ABLE TO RESOLVE THIS. 22 THE COURT: WELL, YES, HE HAS TO BE CROSS-EXAMINED. 23 THAT'S WHERE WE ARE, AS I RECALL. 24 MS. DAW: WELL, THE POINT IS THAT THERE MAY BE A -- 25 YOU KNOW, IF -- IF WE CAN HAVE THE OPPORTUNITY TO PUT IN A 1626 UDINSKY - FURTHER CROSS / DRYOVAGE 1 DECLARATION OF PALMER TO ADDRESS WHATEVER DR. LEPOWSKY -- OR 2 MR. LEPOWSKY, RATHER, BROUGHT OUT, IT COULD OBVIATE THE NEED 3 FOR CROSS-EXAMINATION. I WOULD NOT KNOW UNTIL I HAVE HAD AN 4 OPPORTUNITY TO LOOK AT THE TRANSCRIPT AND CONFER WITH 5 DR. PALMER. BUT IT'S POSSIBLE THAT IT CAN ALL BE DONE ON 6 PAPER. 7 THE COURT: OKAY. WELL, LET'S JUST HOLD OFF ON IT, 8 AND LET'S JUST WAIT AND SEE WHAT WE CAN TRY TO WORK OUT. 9 MS. DAW: OKAY. THANK YOU. 10 THE COURT: WHAT ELSE? 11 MR. SALTIEL: YOUR HONOR, BEYOND THAT, WE'RE 12 RESTING. WE HAVE NO FURTHER WITNESSES. WE WOULD LIKE THE 13 OPPORTUNITY IN LIEU OF CLOSING TO PUT IN A POST-TRIAL WRITTEN 14 ARGUMENT WITH REFERENCES TO THE TRANSCRIPT. 15 THE COURT: ALL RIGHT. ANYTHING FURTHER? 16 MS. DRYOVAGE: YES, I HAVE A COUPLE -- THREE 17 REBUTTAL WITNESSES ON THE ECONOMIC DAMAGES IN THE MITIGATION 18 EFFORTS OF THE PLAINTIFFS. THOSE ARE GOING TO BE VERY BRIEF 19 APPEARANCES BY DR. WRUCKE, DR. GRANTZ, AND DR. ADAM. 20 THE COURT: WHAT, TO ADD TO THEIR TESTIMONY ABOUT 21 WHAT THEY DID TO MITIGATE? 22 MS. DRYOVAGE: YES. AND SPECIFICALLY TO REBUT THE 23 TESTIMONY OF DR. UDINSKY THAT THERE WERE PLENTY OF JOBS IN THE 24 PRIVATE SECTOR THAT THEY COULD HAVE APPLIED FOR AND THAT THEIR 25 MITIGATION EFFORTS WERE INADEQUATE. 1627 UDINSKY - FURTHER CROSS / DRYOVAGE 1 MR. SALTIEL: WELL, I WOULD OBJECT TO THAT. THEY'RE 2 NOT EXPERTS OR QUALIFIED AS EXPERTS TO TESTIFY ON THAT MATTER. 3 DR. UDINSKY'S TESTIMONY WAS BASED ON FACTUAL EVIDENCE THAT WAS 4 CONTAINED IN THEIR DEPOSITIONS. 5 MS. DRYOVAGE: AND THAT EVIDENCE IS NOT YET IN THE 6 RECORD BECAUSE -- 7 THE COURT: WELL, ALL RIGHT. IF THEY HAVE 8 ADDITIONAL THINGS THAT THEY DID TO MITIGATE THAT THEY DIDN'T 9 TESTIFY ABOUT BEFORE, I GUESS THEY CAN TESTIFY ABOUT IT NOW, 10 ALTHOUGH -- 11 MS. DRYOVAGE: WE'LL TRY TO BE EFFICIENT. 12 MS. DAW: YOUR HONOR, THEY HAD THE OPPORTUNITY TO 13 TESTIFY ABOUT THEIR MITIGATION EFFORTS WHEN THEY WERE ON 14 DIRECT. THE WITNESSES WERE EXCUSED. THERE'S NO REASON WHY 15 THEY SHOULD BE TESTIFYING AGAIN ABOUT ISSUES THAT THEY COULD 16 EASILY HAVE COVERED EARLIER. 17 THE COURT: ONE WONDERS. BUT I GUESS WE'LL HAVE TO 18 WAIT AND HEAR WHAT IT IS AND WHY IT WASN'T MENTIONED EARLIER. 19 MR. SALTIEL: CAN YOU TELL US WHO YOU'RE GOING TO 20 CALL AND IN WHAT ORDER, PLEASE. 21 MS. DRYOVAGE: DR. GRANTZ, DR. ADAM, AND DR. WRUCKE. 22 AND THEN THE OTHER POINT IS THAT WE HAD THE THREE 23 PAGES OF UPDATED ECONOMIC LOSS THAT I WOULD LIKE TO OFFER INTO 24 EVIDENCE AT THIS TIME, AND COPIES HAVE BEEN PROVIDED TO 25 OPPOSING COUNSEL. 1628 UDINSKY - FURTHER CROSS / DRYOVAGE 1 THE FIRST IS EXHIBIT NO. 331 FOR DAVID ADAM, 339 FOR 2 ALICÉ DAVIS, AND 351 FOR STEPHEN LEWIS. AND I HAVE A COPY FOR 3 THE COURT AND FOR THE BINDER. 4 MR. SALTIEL: THESE ARE REPLACEMENTS, MY 5 UNDERSTANDING. 6 THE COURT: RIGHT. 7 MS. DRYOVAGE: THAT'S CORRECT. 8 THE COURT: GO AHEAD. 9 MS. DRYOVAGE: OKAY. DR. GRANTZ. 10 THE COURT: YOU'VE PREVIOUSLY BEEN SWORN IN THIS 11 PROCEEDING, AND YOU'RE STILL UNDER OATH. 12 THE WITNESS: YES, YOUR HONOR. 13 ARTHUR GRANTZ, 14 CALLED AS A WITNESS FOR THE PLAINTIFFS ON REBUTTAL, HAVING BEEN 15 PREVIOUSLY DULY SWORN, TESTIFIED AS FOLLOWS: 16 DIRECT EXAMINATION (REBUTTAL) 17 BY MS. DRYOVAGE: 18 Q. YOU HEARD THE TESTIMONY OF DR. UDINSKY CONCERNING THE 19 AVAILABILITY OF COMPARABLE JOBS IN THE PRIVATE, PUBLIC AND 20 FEDERAL SECTOR. CAN YOU EXPLAIN WHAT THE JOB MARKET WAS, AS YOU 21 EXPERIENCED, WHEN YOU WERE RIF'ED IN 1995? 22 MS. BURTON: OBJECTION. 23 THE WITNESS: YES. 24 MS. BURTON: YOUR HONOR, I MEAN, LACKS FOUNDATION. 25 HE HASN'T SAID WHAT HE DID TO LOOK FOR A JOB. 1629 GRANTZ - DIRECT (REBUTTAL) / DRYOVAGE 1 THE COURT: HE MAY TESTIFY AS TO WHAT EFFORTS HE 2 MADE AND WHAT HE FOUND THERE, TO THE EXTENT HE HASN'T DONE SO 3 ALREADY. 4 MS. DRYOVAGE: OKAY. 5 THE COURT: IT WON'T BE A SUBJECTIVE DESCRIPTION OF 6 THE JOB MARKET IN GENERAL. BUT IF HE WANTS TO SAY "I LOOKED IN 7 THE PAPER AND THERE WAS NOTHING THERE," OR WHATEVER, TO THE 8 EXTENT HE HASN'T SAID SO ALREADY, YOU MAY. 9 BY MS. DRYOVAGE: 10 Q. IN ADDITION TO WHAT YOU TESTIFIED TO DURING TRIAL, WHAT 11 EFFORTS DID YOU MAKE TO MITIGATE YOUR DAMAGES FOLLOWING THE RIF 12 OR AT ANY TIME AFTER YOU LEARNED THAT THERE WOULD BE A RIF? 13 A. YES, I FIGURED THAT WITH MY EXPERIENCE IN THE LIFE SCAN, IN 14 THE PARTICULAR ART OF GEOLOGY, THERE WERE THREE PLACES I COULD 15 LOOK. AND ONE WOULD BE THE PETROLEUM INDUSTRY, THE SECOND WOULD 16 BE THE UNIVERSITY POSITIONS, AND THE THIRD WOULD BE NATIONAL 17 SCIENCE FOUNDATION RESEARCH GRANTS WHICH HAVE SALARY ATTACHED TO 18 THEM. 19 AND IN THE FIRST INSTANCE, I HAD MANY CONTACTS IN THE 20 OIL INDUSTRY, AND THEY SELDOM HIRE PEOPLE AT THE AGE I WAS WHEN 21 I WAS RIF'ED, BUT THEY WILL HIRE PEOPLE FOR SMALL CONSULTING 22 JOBS. AND I WAS HIRED -- I WAS CONSULTED BY EXXON MOBIL ON 23 THREE OR FOUR OCCASIONS TO MEET WITH THEIR PEOPLE AND DISCUSS 24 AREAS OF MY EXPERTISE. BUT IT WAS NOT POSSIBLE TO GET A 25 POSITION IN THE OIL BUSINESS BECAUSE IT WAS CONTRACTING. THEY 1630 GRANTZ - DIRECT (REBUTTAL) / DRYOVAGE 1 WERE LETTING PEOPLE GO. THEY WERE NOT HIRING, EXCEPT FOR 2 SPECIAL PURPOSES. 3 IN MY CASE, THEIR NEEDS WERE MET IN EXXON MOBIL BY 4 CONTRACTING WITH ME TO MEET WITH THEIR PEOPLE TO TALK ABOUT 5 ARCTIC ISSUES. 6 Q. AND WHAT YEARS DID YOU HAVE THESE SMALL CONTRACTS? 7 A. SINCE I RETIRED. I FORGET EXACTLY. THREE OR FOUR 8 OCCASIONS, THE MOST RECENT ONE LAST SPRING. 9 Q. AND DID YOU, IN CONNECTION WITH YOUR JOB SEARCH, LEARN OF 10 ANY FULL-TIME POSITIONS IN THE FIELD OF GEOLOGY IN THE PETROLEUM 11 INDUSTRY THAT YOU COULD APPLY FOR? 12 A. IT'S NOT QUITE DONE THAT WAY. YOU -- PEOPLE KNOW WHAT 13 YOU'VE DONE, AND YOU TALK TO PEOPLE THAT YOU KNOW. AND THEY 14 WEREN'T HIRING PEOPLE AT MY AGE AS -- TO START A CAREER IN THE 15 OIL INDUSTRY. THERE WAS JUST -- NOBODY WOULD TALK TO ME ABOUT 16 THAT. 17 Q. AND WHAT STEPS DID YOU TAKE TO GET A UNIVERSITY POSITION? 18 A. I ACCEPTED A CONSULTING PROFESSORSHIP AT STANFORD UNIVERSITY 19 IN THE DEPARTMENT OF ENVIRONMENTAL -- GEOLOGICAL AND 20 ENVIRONMENTAL SCIENCES AND GAVE -- CO-TAUGHT SEMINARS, INVOLVED 21 IN RESEARCH PROJECTS WITH FACULTY. THEY WERE PERFECTLY HAPPY TO 22 HAVE MY HELP PART-TIME, BUT THEY WERE NOT GOING TO HIRE SOMEBODY 23 MY AGE AS NEW FACULTY MEMBER. 24 I DID THE SAME THING AT THE UNIVERSITY OF WISCONSIN. 25 I ALSO HAD A RELATIONSHIP WITH THE LAMONT DOHERTY, COLUMBIA 1631 GRANTZ - DIRECT (REBUTTAL) / DRYOVAGE 1 UNIVERSITY, AND I WORKED WITH UNIVERSITY OF TEXAS PEOPLE. AND 2 THERE WERE NO OPPORTUNITIES AT ANY OF THOSE PLACES TO BE HIRED 3 AS A FACULTY MEMBER. 4 I DID HOWEVER, WRITE -- HELP WRITE RESEARCH PROPOSALS 5 FOR NATIONAL SCIENCE FOUNDATION AT THEIR INVITATION WITH 6 SCIENTISTS FROM THE UNIVERSITY OF TEXAS INSTITUTE OF GEOPHYSICS. 7 THESE CARRY SALARIES, AND ONE OF THESE MAY ACTUALLY PAY OUT. WE 8 WERE TOLD BY THE -- BUT IT'S NOT IN WRITING YET. 9 SO THAT WAS AN AREA I EXPLORED, AND I MAY BE 10 SUCCESSFUL, BUT -- THE FIRST PROPOSAL CAME CLOSE BUT DIDN'T 11 QUITE MAKE IT. THE SECOND ONE, I THINK, WILL BUT IT'S NOT IN 12 WRITING YET. 13 Q. OKAY. AND HOW MANY HOURS A WEEK DID YOU ENGAGE IN JOB 14 SEARCH FOLLOWING THE RIF? 15 A. WELL, I KEPT PROFESSIONALLY ALIVE BY WORKING AS AN EMERITUS 16 AT THE GEOLOGICAL SURVEY, BY ASSOCIATION WITH FACULTY AT 17 STANFORD UNIVERSITY AND AT THE UNIVERSITY OF WISCONSIN. AND SO 18 I HAD MY HAND ON THE PULSE, BUT YOU -- IT'S NOT THE KIND OF 19 THING YOU WORK AT 30 HOURS A DAY OR WEEK, RATHER. IT'S -- YOU 20 KEEP IN TOUCH, AND, AS YOU SEE OPPORTUNITIES, YOU CAN APPLY FOR 21 THEM. 22 PEOPLE CAME TO ME WITH OPPORTUNITIES, BUT MANY OF 23 THEM WERE OUTSIDE MY COMMUTING AREA. MY WIFE HAD A FULL-TIME 24 JOB SO I COULDN'T CONSIDER, SAY, APPLYING FOR POSITIONS IN 25 MONTEREY OR ANCHORAGE. AND THOSE ARE THE KIND OF CONSTRAINTS 1632 GRANTZ - DIRECT (REBUTTAL) / DRYOVAGE 1 THAT I HAD. AND THE BAY AREA ITSELF WAS NOT A PLACE OVERFLOWING 2 WITH JOBS FOR GEOLOGISTS. THERE WERE JUST NOT MANY 3 OPPORTUNITIES THERE. 4 THE BIGGEST EMPLOYER WAS THE GEOLOGICAL SURVEY. AND 5 THEN THE UNIVERSITY COMMUNITY WAS A LARGE EMPLOYER. AND THEN 6 THE OIL COMPANIES. THE OIL COMPANIES WERE NOT HIRING. 7 MS. BURTON: YOUR HONOR, I'D LIKE TO MOVE TO STRIKE. 8 I MEAN, HE HASN'T SAID THAT HE SUBMITTED APPLICATIONS WITH ANY 9 OF THOSE PLACES. LACKS PERSONAL KNOWLEDGE. 10 THE COURT: OVERRULED. 11 BY MS. DRYOVAGE: 12 Q. DID YOU FIND VACANT POSITIONS FOR WHICH YOU COULD SUBMIT 13 APPLICATIONS AT ANY OF THESE THREE TYPES OF POTENTIAL EMPLOYERS? 14 A. NO. THE -- THE UNIVERSITIES ADVERTISE FOR FACULTY 15 POSITIONS, BUT THEY WERE LOOKING FOR NEW -- NEW -- THEY WEREN'T 16 LOOKING FOR PEOPLE OF MY AGE. I WAS IN TOUCH WITH STANFORD, AND 17 THEY GAVE ME AN OFFICE THERE, BUT IT DIDN'T COME WITH -- THEY 18 GAVE ME A CONSULTING PROFESSORSHIP. THEY DID NOT OFFER ME A 19 TEACHING FACULTY. 20 THE COURT: WELL, I WILL SAY TO THE EXTENT THAT THE 21 TESTIMONY IS THAT WHAT OTHERS WERE LOOKING FOR, THERE'S NO 22 FOUNDATION FOR THAT THAT'S BEEN LAID HERE. SO THAT THAT 23 PORTION WILL BE STRICKEN. 24 MS. DRYOVAGE: OKAY. 25 NO FURTHER QUESTIONS. THANK YOU VERY MUCH, 1633 GRANTZ - DIRECT (REBUTTAL) / DRYOVAGE 1 DR. GRANTZ. 2 I WOULD LIKE TO CALL DR. ADAM. 3 MS. BURTON: WELL, I HAVE SOME QUESTIONS. 4 MS. DRYOVAGE: OH. OKAY. 5 CROSS-EXAMINATION (REBUTTAL) 6 BY MS. BURTON: 7 Q. NOW, WHEN YOU TESTIFIED I BELIEVE IT WAS YESTERDAY -- 8 A. YES. 9 Q. -- I ASKED YOU WHETHER -- OTHER THAN SUBMITTING A RESUME TO 10 THE STATE DEPARTMENT, YOU DIDN'T APPLY FOR ANY SPECIFIC JOBS, 11 DID YOU? 12 A. WELL, I HELPED WRITE TWO PROPOSALS TO NATIONAL SCIENCE 13 FOUNDATION, AND I WAS CONSULTING ON THE CONSULTING -- CONSULTING 14 PROFESSOR AT STANFORD, SO I TALKED TO THOSE PEOPLE. 15 Q. DID YOU SUBMIT ANY RESUMES FOR ANY SPECIFIC JOBS? 16 A. YOU'RE INVITED TO SUBMIT RESUMES. YOU DON'T JUST -- 17 THE COURT: RIGHT, BUT YOU NEED TO ANSWER THE 18 QUESTION. 19 BY MS. BURTON: 20 Q. DID YOU SUBMIT ANY RESUMES FOR ANY SPECIFIC JOBS? 21 A. STATE DEPARTMENT, FLORIDA. IT WAS A -- THEY WANTED MY -- MY 22 RESUME. THEY DIDN'T WANT -- YEAH. THE ANSWER IS YES. 23 MS. BURTON: OKAY. THANKS. NO FURTHER QUESTIONS. 24 THE COURT: ANYTHING ELSE? 25 MS. DRYOVAGE: NO. 1634 GRANTZ - CROSS (REBUTTAL) / BURTON 1 THE COURT: ALL RIGHT. YOU MAY STEP DOWN. YOU MAY 2 CALL YOUR NEXT WITNESS. 3 MS. DRYOVAGE: DR. ADAM. 4 THE COURT: YOU'VE PREVIOUSLY BEEN SWORN -- 5 THE WITNESS: YES. 6 THE COURT: -- IN THIS PROCEEDING, AND YOU'RE STILL 7 UNDER OATH. 8 DIRECT EXAMINATION (REBUTTAL) 9 BY MS. DRYOVAGE: 10 Q. DR. ADAM, YOU'VE HEARD DR. UDINSKY'S TESTIMONY. AND IF YOU 11 COULD TELL US WHAT STEPS DID YOU TAKE TO MITIGATE YOUR DAMAGES 12 BEFORE MOVING OUT OF THE BAY AREA? 13 A. WELL, AS I INDICATED BEFORE, WENT TO JOB FAIRES, LOOKED AT 14 ADS ANY PLACE I COULD FIND THEM, INCLUDING BOTH NEWSPAPERS AND 15 TECHNICAL PUBLICATIONS. I APPLIED FOR A NUMBER OF JOBS BOTH 16 WITHIN AND OUTSIDE MY FIELD, BUT THE BIGGEST EFFORT WAS 17 PREPARING A PROPOSAL TO THE NATIONAL SCIENCE FOUNDATION THROUGH 18 CALIFORNIA ACADEMY OF SCIENCES WITH ME AS THE PRINCIPAL 19 INVESTIGATOR. 20 THIS WOULD HAVE BEEN A FULL-TIME JOB. GETTING THE 21 PROPOSAL READY IS BASICALLY A FULL-TIME JOB INVOLVING CONSULTING 22 WITH PEOPLE WHO WILL BE COLLEAGUES AROUND THE WORLD, AND PUTTING 23 TOGETHER A PROPOSAL THAT YOU HOPE WILL GET FUNDED. IT DID NOT 24 GET FUNDED. 25 Q. WHAT OTHER STEPS DID YOU TAKE TO SEEK EMPLOYMENT? 1635 ADAM - DIRECT (REBUTTAL) / DRYOVAGE 1 A. WELL, I NETWORKED WITH VARIOUS PROFESSIONALS IN MY FIELD, 2 WHICH IS PALYNOLOGY. THERE'S NOT A WHOLE LOT OF US, SO THIS 3 INVOLVED PROBABLY A HALF DOZEN PEOPLE THROUGHOUT THE COUNTRY AND 4 LETTING THEM KNOW THAT I WAS LOOKING FOR WORK AND HOPING THAT 5 THEY WOULD BE ABLE TO STEER ME IN THE PROPER DIRECTIONS. BUT I 6 DID NOT GET ANY OFFERS AS A RESULT OF THAT. 7 Q. DID YOU RESTRICT YOURSELF TO THE PALYNOLOGY JOBS? 8 A. I WAS LOOKING FOR ANYTHING I COULD FIND THAT WOULD MAKE 9 PRODUCTIVE USE OF WHAT I COULD DO, WHICH INCLUDED COMPUTERS, 10 GEOLOGY, ENVIRONMENTAL SCIENCES IN GENERAL. I WAS OPEN TO 11 SWITCHING TO ANYTHING THAT WOULD PAY. 12 Q. WHAT WAS THE REASON WHY YOU MOVED TO LAKE COUNTY? 13 A. WELL, MY WIFE RETIRED. THIS WOULD HAVE BEEN ABOUT TWO YEARS 14 AND NINE MONTHS AFTER THE RIF. AND SHE RETIRED. WE HAD A BIG 15 MORTGAGE AND WERE NOT GOING TO BE ABLE TO SUSTAIN THAT. SO WE 16 DECIDED WE BETTER SELL OUT AND MOVE TO SOMEPLACE THAT WASN'T AS 17 EXPENSIVE. 18 Q. AND SINCE MOVING TO LAKE COUNTY, DID YOU TAKE STEPS TO FIND 19 A JOB? 20 A. YES, I HAVE BEEN WORKING THREE JOBS -- THREE PART-TIME JOBS 21 SIMULTANEOUSLY UNTIL THE END OF JUNE, IN WHICH CASE ONE WITH THE 22 UNIVERSITY OF CALIFORNIA AT DAVIS, THE GRANT RAN OUT. SO I'M 23 NOW BACK DOWN TO TWO JOBS, ONE WITH THE AIR QUALITY MANAGEMENT 24 DISTRICT AS AN AIR QUALITY SPECIALIST, AND ONE JOB TEACHING 25 GEOLOGY AT MENDOCINO COLLEGE. 1636 ADAM - DIRECT (REBUTTAL) / DRYOVAGE 1 Q. NOW, DID YOU TAKE ANY STEPS TO UPGRADE YOUR TRAINING? 2 A. YES. I TOOK A SERIES OF COMPUTER COURSES AFTER THE RIF 3 WHICH WERE OFFERED THROUGH I BELIEVE IT WAS UNIVERSITY OF SANTA 4 CLARA. THOSE WERE COURSES IN PERL, P-E-R-L, IS A COMPUTER 5 LANGUAGE. 6 AND I'VE ALSO BEEN TRYING TO IMPROVE MY SKILLS. 7 PARTICULARLY WITH THE U.C. DAVIS JOB, I'VE BEEN USING DATABASE 8 AND COMPUTER LANGUAGE APPLICATIONS TO MANAGE A DATABASE 9 BASICALLY ON THE DISTRIBUTION OF MERCURY IN THE CLEAR LAKE 10 ECOSYSTEM. 11 MS. DRYOVAGE: THANK YOU. I HAVE NO FURTHER 12 QUESTIONS. 13 MS. BURTON: I HAVE A FEW. 14 CROSS-EXAMINATION (REBUTTAL) 15 BY MS. BURTON: 16 Q. YOU WENT TO APPROXIMATELY THREE JOB FAIRES OVER A THREE-YEAR 17 PERIOD, DIDN'T YOU? 18 A. THREE OR FOUR. 19 Q. AND YOU READ THE WANT ADS, DIDN'T YOU? 20 A. YES. 21 Q. AND YOU PUT YOUR RESUME ON ONE WEBSITE, DIDN'T YOU? 22 A. MORE THAN ONE BECAUSE I HAD MY OWN WEBSITE WHICH WAS ON LINE 23 FOR A WHILE WITH MY RESUME ON THERE. AND THERE WAS ONE WEB JOB 24 SITE THAT I DID SUBMIT MY RESUME TO. 25 Q. AND YOU CAN IDENTIFY APPROXIMATELY FIVE PEOPLE THAT YOU 1637 ADAM - CROSS (REBUTTAL) / BURTON 1 CONTACTED AT UNIVERSITIES, CAN'T YOU? 2 A. YES. 3 Q. AND WHEN YOU WERE DEPOSED, YOUR JOB SEARCH CONSISTED OF 4 LOOKING AT JOBS THAT WERE POSTED ON E-MAIL MAILING LISTS, DIDN'T 5 YOU? 6 A. IT INCLUDED THAT. IT DID NOT CONSIST OF THAT. 7 Q. DO YOU REMEMBER BEING DEPOSED? 8 A. YES. 9 Q. LIKE TO SHOW HIM PAGE 48 OF HIS DEPOSITION. I DON'T HAVE 10 OTHER COPIES 'CAUSE I WASN'T ANTICIPATING -- DO YOU SEE 11 APPROXIMATELY LINE 14 WHERE YOU WERE ASKED HOW WOULD YOU 12 DESCRIBE YOUR JOB SEARCH CURRENTLY? 13 A. YES. 14 Q. AND YOUR RESPONSE WAS...? 15 A. "I'M LOOKING AT -- MOSTLY AT PRESENT, I'M LOOKING AT JOBS 16 THAT ARE POSTED ON E-MAIL MAILING LISTS, AND I STILL LOOK AT THE 17 JOB DESCRIPTIONS IN EOS AND SCIENCE, SO DOT, DOT, DOT. 18 Q. OKAY. THANKS. 19 NO FURTHER QUESTIONS. 20 THE COURT: ANYTHING ELSE? 21 REDIRECT EXAMINATION (REBUTTAL) 22 MS. DRYOVAGE: I WOULD LIKE TO SHOW EXHIBIT 83 TO 23 THIS WITNESS AND HAVE HIM IDENTIFY IT. 24 THIS WAS EXHIBIT 83 TO HIS DEPOSITION. 25 THE WITNESS: YES. 1638 ADAM - REDIRECT (REBUTTAL) / DRYOVAGE 1 BY MS. DRYOVAGE: 2 Q. CAN YOU IDENTIFY -- 3 MR. SALTIEL: WAIT, WAIT, WAIT. 4 MS. BURTON: WAIT. WE HAVEN'T SEEN IT YET. 5 MS. DRYOVAGE: THIS DOCUMENT -- 6 MR. SALTIEL: WHICH EXHIBIT? IS THIS A PLAINTIFFS' 7 EXHIBIT? 8 MS. DRYOVAGE: IT'S NOT -- I DON'T KNOW IF IT WAS AN 9 EXHIBIT HERE, BUT IT WAS 83, THE EXHIBIT TO HIS DEPOSITION. 10 MS. BURTON: I DON'T -- 11 (PAUSE IN THE PROCEEDINGS.) 12 BY MS. DRYOVAGE: 13 Q. AND WHAT IS THIS DOCUMENT? 14 A. THIS DOCUMENT IS A PARTIAL LIST OF JOBS FOR WHICH I APPLIED 15 WHICH I ASSEMBLED IN PREPARATION FOR GIVING MY DEPOSITION. 16 Q. AND THAT LISTS THE JOBS THAT YOU APPLIED (SIC) BETWEEN 1996 17 AND 2002? 18 A. THAT WOULD BE -- YES. AND THAT -- THAT IS NOT A 19 COMPREHENSIVE LIST BECAUSE I THINK I MAY HAVE FORGOTTEN SOME 20 THINGS, BUT I DID APPLY FOR ALL OF THESE JOBS. 21 Q. OKAY. AND THEN YOU ALSO INCLUDED IN YOUR DEPOSITION A -- 22 ABOUT A INCH OF DOCUMENTATION SUPPORTING THIS LIST, DID YOU NOT? 23 A. YES. 24 Q. AND CAN YOU EXPLAIN WHAT IT WAS THAT YOU GAVE TO THE 25 GOVERNMENT TO SHOW WHAT THE JOB SEARCH WAS THAT YOU HAD DONE? 1639 ADAM - REDIRECT (REBUTTAL) / DRYOVAGE 1 A. YES, I WENT THROUGH MY COMPUTER, AND I GOT OUT ALL THE 2 LETTERS THAT I HAD SENT AND THE FAXES THAT I HAD SENT, AND I 3 PRINTED THEM OUT. AND I HAD A WHOLE BUNCH OF RESUMES, WHICH 4 WERE SLIGHTLY CHANGED VERSIONS, AND EACH OF THOSE HAD BEEN SENT 5 IN RESPONSE TO ONE OR MORE JOB APPLICATIONS. 6 SO IT WAS BASICALLY THAT WAS THE STACK -- AND I THINK 7 I ALSO INCLUDED MOST OF THE NSF PROPOSAL IN THAT STACK AS WELL. 8 MS. DRYOVAGE: I WOULD LIKE TO OFFER INTO EVIDENCE 9 EXHIBIT NO. 391. 10 THE CLERK: THINK IT'S ALREADY IN. 11 MS. BURTON: I HAVE NO OBJECTION. 12 MS. DRYOVAGE: NO FURTHER QUESTIONS OF THIS WITNESS. 13 MS. BURTON: I HAVE ONE. 14 RECROSS-EXAMINATION (REBUTTAL) 15 BY MS. BURTON: 16 Q. NOW, THE DOCUMENT THAT PLAINTIFFS' COUNSEL JUST SHOWED YOU 17 LISTS APPROXIMATELY 16 JOBS THAT YOU'VE APPLIED FOR? 18 A. (REVIEWING DOCUMENT.) 19 SOMETHING LIKE THAT, YES. 20 MS. BURTON: NO FURTHER QUESTIONS. 21 THE COURT: ANYTHING ELSE? 22 MS. DRYOVAGE: NO. 23 THE COURT: YOU'RE EXCUSED. YOU MAY STEP DOWN. 24 YOU MAY CALL YOUR NEXT WITNESS. 25 MS. DRYOVAGE: DR. WRUCKE. 1640 ADAM - RECROSS (REBUTTAL) / BURTON 1 CHESTER WRUCKE, 2 CALLED AS A WITNESS FOR THE PLAINTIFFS ON REBUTTAL, HAVING BEEN 3 DULY SWORN, TESTIFIED AS FOLLOWS: 4 DIRECT EXAMINATION (REBUTTAL) 5 BY MS. DRYOVAGE: 6 Q. THANK YOU, DR. WRUCKE. 7 YOU HEARD DR. UDINSKY'S TESTIMONY, AND -- WHAT DID 8 YOU DO TO SEEK TO MITIGATE YOUR DAMAGES FOLLOWING RIF? 9 A. I NETWORKED WITH -- WITH PEOPLE WHOM I THOUGHT HAD A 10 KNOWLEDGE OF THE KINDS OF POSITIONS THAT WERE REASONABLE FOR ME. 11 AND I INVESTIGATED GEOLOGICAL JOURNALS TO SEE WHAT POSITIONS 12 WERE AVAILABLE. 13 Q. WHAT EFFORTS DID YOU UNDERTAKE TO FIND A JOB IN PRIVATE 14 INDUSTRY? 15 A. I LOOKED AT JOB OPPORTUNITIES IN -- MENTIONED IN -- IN 16 GEOLOGICAL JOURNALS AND FOUND THAT THERE SIMPLY WERE NOT 17 ANYTHING. THE MINING INDUSTRY WAS AT A LOW EBB, AND I SIMPLY 18 FOUND NOTHING IN THE MINING INDUSTRY. 19 I LOOKED ALSO AT POSITIONS AVAILABLE IN -- POSSIBLY 20 AVAILABLE IN STATE SURVEYS, BECAUSE I WAS DOING WORK THAT 21 CONTRIBUTED TO THE NEVADA BUREAU OF MINES AND GEOLOGY. SO I 22 LOOKED TO SEE IF THERE WERE COMPARABLE JOBS IN STATE SURVEYS IN 23 THE WEST, AND I FOUND NOTHING BUT ENTRY-LEVEL POSITIONS. 24 Q. OKAY. NOW, WITH RESPECT TO THE SCIENTIFIC JOURNALS THAT YOU 25 LOOKED AT, WHICH JOURNALS WERE THOSE? 1641 WRUCKE - DIRECT (REBUTTAL) / DRYOVAGE 1 A. I REMEMBER LOOKING AT GSA TODAY AND GEO TIMES, AND THOSE 2 SPECIFICALLY. 3 Q. WERE THERE ANY VACANT POSITIONS FOR WHICH YOU COULD SUBMIT 4 AN APPLICATION BASED ON THE SEARCH THAT YOU DID? 5 A. I FOUND NOTHING THAT WAS COMPARABLE TO THE WORK THAT I WAS 6 DOING, NO -- NOTHING IN MY FIELD OTHER THAN ENTRY-LEVEL 7 POSITIONS. 8 Q. WHAT GEOGRAPHIC AREA WERE YOU WILLING -- 9 A. I WAS INTERESTED PARTICULARLY IN THE WEST, NEVADA, 10 CALIFORNIA, OREGON, ARIZONA. 11 Q. NOW, YOU SAID THAT YOU ALSO LOOKED FOR STATE SURVEY JOBS. 12 DID YOU FIND ANY JOB VACANCIES THROUGH THOSE CHANNELS? 13 A. ONLY ENTRY-LEVEL POSITIONS. 14 Q. WERE YOU INVITED BY ANY OF YOUR COLLEAGUES THAT YOU 15 CONTACTED TO APPLY FOR ANY POSITIONS ANYPLACE ELSE? 16 A. I WAS NOT. EVEN THOUGH I NETWORKED WITH SOME WHO -- WHO 17 KEPT UP ON THE KNOWLEDGE -- KNOWLEDGE OF WHAT WAS AVAILABLE. 18 SPECIFICALLY A PROFESSOR AT ONE OF OUR LOCAL JUNIOR COLLEGES, 19 WHO HAD TO BE AWARE OF POSITIONS AVAILABLE FOR STUDENTS, AND SO 20 HE HAD A GOOD KNOWLEDGE OF WHAT WAS AVAILABLE IN THE GEOLOGIC 21 COMMUNITY. AND HE TOLD ME THAT THERE WAS NOTHING AVAILABLE FOR 22 PEOPLE IN MY POSITION. 23 Q. NOW, DID YOU TAKE ANY STEPS TO UPGRADE YOUR SKILL LEVEL OR 24 MAINTAIN YOUR PROFICIENCY IN GEOLOGY? 25 A. ONLY THROUGH CONTINUED WORK ON PUBLICATIONS. 1642 WRUCKE - DIRECT (REBUTTAL) / DRYOVAGE 1 Q. DID YOU ALSO TAKE COURSE WORK IN GEOLOGY? 2 A. I TOOK ONE -- ONE NIGHT COURSE, A CONTINUING EDUCATION 3 COURSE AT STANFORD THAT DEALT WITH GEOLOGY. 4 Q. AND DID YOU PUBLISH ANY PAPERS OR ASSIST IN REVIEWING PAPERS 5 FOR COLLEAGUES IN GEOLOGY? 6 A. I CONTINUED AS AN EMERITUS DOING THAT -- THOSE KINDS OF 7 THINGS, AND PREPARING PAPERS FOR PUBLICATION. 8 Q. AND DID YOU TAKE ANY STEPS TO GET HIRED BACK TO THE USGS? 9 A. NOT SPECIFICALLY. 10 Q. WELL, EXCEPT FOR -- 11 A. GEOLOGICAL SURVEY KNEW THAT I WAS THERE AND DOING -- DOING 12 WORK THAT THE GEOLOGICAL SURVEY WANTED DONE. THAT'S WHY I HAD 13 AN EMERITUS STATUS. 14 Q. AND YOU ALSO WERE INVOLVED IN APPEALING YOUR -- THE DECISION 15 ON YOUR DISPOSITION, WERE YOU NOT? 16 A. YES, I WAS. 17 MS. DRYOVAGE: THANK YOU. I HAVE NO FURTHER 18 QUESTIONS. 19 CROSS-EXAMINATION (REBUTTAL) 20 BY MS. DAW: 21 Q. DR. WRUCKE, YOUR JOB SEARCH FOLLOWING THE RIF WAS LIMITED TO 22 ONE TO TWO HOURS PER WEEK; IS THAT NOT CORRECT? 23 A. THAT'S RATHER HARD TO SAY BECAUSE I KEPT MY EARS OPEN AND 24 WENT TO LUNCHES AND CONTACTED PEOPLE. IT WAS PROBABLY AT LEAST 25 THAT MUCH -- AT LEAST THAT -- THOSE NUMBER OF HOURS. 1643 WRUCKE - CROSS (REBUTTAL) / DAW 1 Q. DO YOU RECALL HAVING YOUR DEPOSITION TAKEN IN THIS CASE? 2 A. I DO. 3 Q. OCTOBER 17TH, 2002? 4 A. YES. 5 Q. AND AT PAGE 37 OF YOUR DEPOSITION, YOU WERE ASKED, 6 "BEGINNING IN 1995, AFTER THE RIF, HOW MUCH TIME 7 DID YOU SPEND -- HOW MUCH TIME DID YOU DEVOTE TO A 8 JOB SEARCH? 9 "A. PROBABLY ONE TO TWO HOURS A WEEK." 10 A. THAT IS WHAT I SAID AT THAT TIME. 11 Q. AND IN THE TIME FOLLOWING THE RIF, YOU HAVE NOT SUBMITTED A 12 SINGLE JOB APPLICATION OR RESUME; ISN'T THAT TRUE? 13 A. THAT IS CORRECT. 14 MS. DAW: NO FURTHER QUESTIONS, YOUR HONOR. 15 THE COURT: ANYTHING ELSE? 16 MS. DRYOVAGE: YES. 17 REDIRECT EXAMINATION (REBUTTAL) 18 BY MS. DRYOVAGE: 19 Q. IS SUBMITTING JOB APPLICATIONS THE WAY ONE GETS A JOB WHEN 20 YOU'RE AT A GS14 GEOLOGIST POSITION WITH 30-PLUS YEARS THE 21 FEDERAL GOVERNMENT? 22 MS. DAW: OBJECTION, YOUR HONOR, FOUNDATION. 23 THE COURT: SUSTAINED. 24 MS. DRYOVAGE: OKAY. 25 1644 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 BY MS. DRYOVAGE: 2 Q. ARE YOU FAMILIAR WITH THE WAY IN WHICH ONE GETS JOBS 3 FOLLOWING 30 YEARS OF SERVICE WITH THE GOVERNMENT? 4 MS. DAW: YOUR HONOR, HE'S TESTIFIED HE SPENT ONE TO 5 TWO HOURS SEARCHING FOR A JOB. HE, I DON'T BELIEVE, HAS THE 6 EXPERTISE TO TESTIFY ABOUT HOW ONE FINDS ONE. 7 MS. DRYOVAGE: I'LL REPHRASE THE QUESTION. 8 Q. IF -- WELL, DID YOU FIND ANY VACANT POSITIONS AT -- OF 9 COMPARABLE JOBS FOR WHICH YOU COULD SUBMIT A RESUME TO? 10 MS. DAW: ASKED AND ANSWERED. 11 THE COURT: I THINK IT WAS. 12 MS. DRYOVAGE: OKAY. NO FURTHER QUESTIONS. 13 MS. DAW: NO QUESTIONS, YOUR HONOR. 14 THE COURT: ALL RIGHT. YOU'RE EXCUSED. YOU MAY 15 STEP DOWN. 16 SO THE GOVERNMENT PROPOSES -- I GUESS YOU HAVE IN 17 MIND TO GET A TRANSCRIPT OF THE WHOLE TRIAL BEFORE SUBMITTING 18 YOUR CLOSING ARGUMENTS? 19 MR. SALTIEL: IF WE CAN, WE'D LIKE TO MAKE 20 REFERENCES TO THE TRANSCRIPT, YES. 21 THE COURT: IS THAT WHAT YOU'D LIKE, MISS DRYOVAGE? 22 MS. DRYOVAGE: WELL, I'M NOT SURE -- WE DON'T HAVE 23 THE FUNDS OF THE GOVERNMENT TO ORDER THE ENTIRE TRANSCRIPT, AND 24 WE WOULD -- WE'RE CONSIDERING THAT POSSIBILITY JUST TO KEEP 25 PACE WITH THEM, BUT I THINK IT IS APPROPRIATE TO SUBMIT A 1645 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 WRITTEN CLOSING STATEMENT AND TO HAVE IT DUE AT THE SAME TIME 2 AS THE GOVERNMENT'S. 3 THE COURT: ALL RIGHT. 4 HAVE YOU INQUIRED ABOUT HOW LONG IT WILL TAKE TO GET 5 A TRANSCRIPT? 6 MR. SALTIEL: WE'VE INQUIRED ABOUT GETTING A 7 TRANSCRIPT. I DON'T RECALL THE -- 8 THE COURT: LET'S GO OFF THE RECORD FOR A MINUTE. 9 (OFF-THE-RECORD DISCUSSION.) 10 THE COURT: OKAY. SO THE COURT REPORTER INFORMS ME 11 THAT IN ABOUT TWO WEEKS, IF YOU WANTED EXPEDITED TRANSCRIPTS, 12 YOU COULD GET THEM, OR ABOUT 30 DAYS IF YOU DON'T GET EXPEDITED 13 TRANSCRIPTS. 14 MS. BURTON: I THINK WE ALREADY ORDERED THEM 15 EXPEDITED. 16 THE DEFENDANT: YOU ORDERED THE EXPEDITED? OKAY. 17 WELL, ASSUMING THE TRANSCRIPTS ARE AVAILABLE IN TWO 18 WEEKS, THEN, WHEN WOULD YOU LIKE TO FILE YOUR CLOSING ARGUMENT, 19 MS. DRYOVAGE? 20 MR. SALTIEL: THIRTY DAYS, YOUR HONOR. 21 THE COURT: I WAS ASKING MS. DRYOVAGE. 22 MR. SALTIEL: OH, SORRY. 23 THE COURT: SHE'S THE PLAINTIFF. SHE GOES FIRST. 24 MS. DRYOVAGE: WE WOULDN'T DO IT SIMULTANEOUSLY? 25 THE COURT: NO, I DON'T LIKE SIMULTANEOUS BRIEFS. I 1646 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 DON'T FIND THEM USEFUL. 2 MS. DRYOVAGE: I SUPPOSE WE NEED ABOUT 45 DAYS FROM 3 TODAY, WHICH WOULD BE 30 DAYS AFTER THE TRANSCRIPT. 4 THE COURT: OKAY. SO YOU WANT TO FILE ON -- AROUND 5 THE 1ST OF SEPTEMBER? THAT'S A HOLIDAY. WE'LL CALL IT THE 5TH 6 OF SEPTEMBER. 7 AND I -- WHAT I'D ALSO LIKE IS UPDATED PROPOSED 8 FINDINGS OF FACT AND CONCLUSIONS OF LAW. IT MIGHT BE MOST 9 CONVENIENT JUST TO SUBMIT THOSE ALONG WITH THE CLOSING ARGUMENT 10 BECAUSE THEY WOULD ESSENTIALLY BE A REWORKING OF THE CLOSING 11 ARGUMENT. 12 WOULD THAT BE REASONABLE? 13 MS. DRYOVAGE: YES, THAT WOULD MAKE A LOT OF SENSE. 14 THE COURT: ALL RIGHT. SO IF THEY FILE CLOSING 15 ARGUMENT -- WELL, AND THAT ALSO ASSUMES THAT WE'RE ABLE TO 16 RESOLVE SOMETHING ABOUT LEPOWSKY AND PALMER SOMETIME BEFORE 17 THEN. 18 MR. SALTIEL: THAT'S TRUE. 19 THE COURT: WHICH I WOULD LIKE TO DO, BUT I GUESS IF 20 WE'RE NOT ABLE TO RESOLVE THAT IN TIME TO INCLUDE IT, THEN WE'D 21 HAVE TO DELAY THAT THOSE FILING DATES. 22 ASSUMING THAT SHE DOES FILE ON THE 5TH OF SEPTEMBER, 23 WHEN WOULD YOU LIKE TO FILE YOUR OPPOSITION? 24 MR. SALTIEL: THIRTY DAYS AFTER THAT. 25 THE COURT: ALL RIGHT. SO OCTOBER 3RD. AND WHEN 1647 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 WOULD YOU LIKE TO FILE YOUR REPLY? 2 MS. DRYOVAGE: OCTOBER 10TH. 3 THE COURT: OKAY. AND SO YOU'LL FILE A CLOSING 4 ARGUMENT AND PROPOSED FINDINGS AND CONCLUSIONS. 5 MS. DRYOVAGE: YES. 6 THE COURT: AND YOU'LL FILE CLOSING ARGUMENT AND 7 PROPOSED FINDINGS AND CONCLUSIONS. THEN YOU MAY FILE A 8 REBUTTAL. AND LET'S MAKE IT THE PAGE LIMIT OF THE BRIEFS, 9 WHICH IS 25 PAGES FOR THE BRIEFS AND 25 PAGES FOR THE FINDINGS. 10 YOU CAN FILE A REBUTTAL ARGUMENT. AND IF YOU WISH 11 TO FILE AN UPDATED VERSION OF YOUR PROPOSED FINDINGS AND 12 CONCLUSIONS ALONG WITH THAT, YOU COULD DO THAT, OR YOU COULD 13 REST ON YOUR ORIGINAL PROPOSED FINDINGS AND CONCLUSIONS. 14 MS. DRYOVAGE: OKAY. 15 THE COURT: WHAT I'D LIKE TO DO ABOUT THE EXHIBITS, 16 IF YOU WOULD, IS TO EACH GO THROUGH THE EXHIBITS THAT YOU 17 SUBMITTED BEFOREHAND, BOTH THE CLERK'S COPY AND THE COURT'S 18 COPY, AND TAKE BACK -- THEY WEREN'T FILED, RIGHT? THEY WERE 19 JUST LODGED, SO THEY COULD TAKE STUFF BACK. 20 THE CLERK: YEAH, THEY WERE JUST LODGED. 21 THE COURT: SO GO IN AND TAKE OUT EVERYTHING THAT 22 WASN'T PROFFERED AND LEAVE IN ONLY THINGS THAT EITHER WERE 23 RECEIVED INTO EVIDENCE OR IF THERE WAS SOMETHING THAT WAS 24 OFFERED AND NOT RECEIVED THAT YOU WANT TO BE PART OF THE RECORD 25 ON APPEAL, YOU CAN LEAVE THAT IN. BUT IF IT'S SOMETHING YOU 1648 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 DON'T CARE ABOUT, THEN WITHDRAW THAT AS WELL SO THAT THE CLERK 2 HAS A SET, AND I HAVE A SET TO WORK WITH. 3 AND TO THE EXTENT THERE WERE SUBSTITUTIONS OR 4 REDACTIONS OR ONLY PORTIONS OF THEM ADMITTED OR SO ON, HAVE THE 5 COPIES HERE BE THE COPIES OF WHAT'S SUPPOSED TO BE IN THE 6 RECORD. AND I GUESS YOU'LL HAVE TO REVIEW EACH OTHER'S WORK AS 7 WELL. SO YOU MIGHT JUST WANT TO MAKE ARRANGEMENTS TO COME IN 8 HERE AND WORK ON THEM AT THE TABLES AND LEAVE THEM HERE. 9 MS. DRYOVAGE: IS THE COURTROOM AVAILABLE THIS 10 AFTERNOON FOR THAT? 11 THE COURT: YES. SEEMS SO. 12 MS. DRYOVAGE: AND THEN THERE'S A NUMBER OF EXHIBITS 13 WHERE WE HAD AT VARIOUS POINTS IN TIME DISAGREEMENTS AND THEN 14 AGREEMENTS ABOUT THE ADMISSIBILITY. AND I THINK THEY WERE ALL 15 ONES IN WHICH THE PLAINTIFF SOUGHT FOR THE EXHIBITS TO BE 16 ADMITTED AND THE DEFENDANTS EITHER SAID THAT THEY WOULD 17 STIPULATE OR SAID THAT THEY WOULD CONSIDER STIPULATING. 18 IS THERE A TIME REQUIREMENT WHEREBY WE MUST WORK OUT 19 THESE PROBLEMS, OR -- 20 THE COURT: WELL, YES. 21 MS. DRYOVAGE: WHAT I WOULD SUGGEST IS THAT WE HAVE 22 30 DAYS TO CLOSE OUT THE RECORD, BECAUSE I MADE A NUMBER OF 23 REQUESTS TO SUBMIT WRITTEN OFFERS OF PROOF, AND I HAVE TO HAVE 24 SOME TIME TO PREPARE THOSE. AND THEN THERE'S ALSO THE MSPB 25 DESIGNATIONS OF RECORD THAT WE HAVE NOT YET COMPLETED. 1649 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 THE COURT: WELL, I DON'T WANT TO OPEN UP A BIG 2 ROUND OF FIGHTS HERE. WHY DON'T YOU GO THROUGH THE LIST OF 3 EXHIBITS THAT ARE IN EVIDENCE AND GO THROUGH THE LIST OF 4 EXHIBITS THAT YOU WANT IN EVIDENCE THAT AREN'T IN EVIDENCE AND 5 GIVE THAT TO THE DEFENDANT BY FRIDAY. 6 AND THEN YOU LET HER KNOW WHICH OF THOSE YOU'LL 7 ALLOW INTO EVIDENCE BY STIPULATION AND WHICH YOU WON'T. AND IF 8 YOU HAVE ANYTHING IN THE SAME CATEGORY, YOU CAN DO THAT AS 9 WELL. 10 AND THEN I GUESS YOU CAN JUST INCLUDE IN YOUR 11 BRIEFING THAT YOU'RE OTHERWISE DOING YOUR ARGUMENTS AS TO 12 WHETHER THOSE THINGS SHOULD BE ADMITTED OR NOT IF THERE ARE 13 STILL DISPUTES ABOUT THOSE. 14 AND YOU CAN FILE YOUR OFFERS OF PROOF BY FRIDAY AS 15 WELL. THOSE SHOULD BE NO MORE THAN A PARAGRAPH PER OFFER OF 16 PROOF. 17 MS. DRYOVAGE: OKAY. 18 MR. SALTIEL: JUST FOR CLARIFICATION OF THIS: THE 19 DESIGNATIONS OF THE MSPB RECORD THAT -- 20 THE COURT: OH, YEAH. THE MSPB RECORD IS JUST THE 21 CROSS-EXAMINATION -- DID YOU SUBMIT THEIR ENTIRE -- 22 MR. SALTIEL: NO. 23 THE COURT: -- DECLARATIONS? JUST EXCERPTS? 24 MR. SALTIEL: YES. 25 THE COURT: OKAY. 1650 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 MR. SALTIEL: THAT'S FOR CARTER AND FOR WORL. 2 THE COURT: OKAY. BY FRIDAY ALSO, GIVE THE 3 GOVERNMENT THE PAGE AND LINES OF ANY ADDITIONAL PORTIONS OF 4 CARTER AND WORL THAT YOU WANT IN, AND THEN YOU CAN SUBMIT -- 5 YOU CAN SUBSTITUTE WHAT YOU'VE -- WELL, YOU'LL HAVE TO -- IT'S 6 FILED, SO YOU CAN'T TAKE IT OUT, SO YOU'LL HAVE TO SUBMIT A 7 REVISED VERSION THAT WILL INCLUDE THE FULL EXCERPTS OF BOTH, 8 SAY, BY THE FOLLOWING FRIDAY. 9 MS. DRYOVAGE: WE HAD ALSO ASKED TO SUBMIT AS 10 ADMISSIONS SOME OF THE MSPB TESTIMONY OF THE DEFENDANT'S 11 WITNESSES THAT WERE ON THEIR FINAL WITNESS LIST, AND WE DID NOT 12 RAISE THIS SOONER BECAUSE IT WASN'T CLEAR WHETHER THEY WERE 13 GOING TO ACTUALLY APPEAR OR WHETHER THEY'RE UNAVAILABLE TO 14 TESTIFY. 15 FOR EXAMPLE, ALISON TILL IS ONE PERSON WHO'S ON THE 16 WITNESS LIST, AND THERE'S TESTIMONY THAT SHE GAVE AT THE MSPB 17 ABOUT BELA CSEJTEY'S POSITION WHICH WE WOULD LIKE TO HAVE, AND 18 THERE'S A FEW OTHER THINGS LIKE THAT. I COULD PROVIDE THOSE BY 19 FRIDAY AS WELL. 20 THE COURT: WELL, I THINK IT'S A LITTLE LATE FOR 21 THAT. YOU'RE TALKING ABOUT SOMETHING YOU WANTED TO HAVE IN 22 YOUR CASE-IN-CHIEF. WE'VE RESTED THAT AND -- AND RESTED THE 23 REBUTTAL. SO I WOULDN'T BE ANTICIPATING HAVING ADDITIONAL 24 WITNESSES AT THIS POINT, NO. 25 MS. DRYOVAGE: WELL, THEN I WILL SUBMIT THEM AS 1651 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 OFFERS OF PROOF. 2 MS. BURTON: WELL, YOUR HONOR, WE'D OBJECT TO THAT. 3 I MEAN, THERE'S NO EVIDENCE THAT -- THAT MS. DRYOVAGE EVER 4 COMMUNICATED WITH US AS TO THE NECESSITY OF HAVING MISS TILL 5 HERE FOR TRIAL. 6 MS. DRYOVAGE: THERE'S ALSO -- 7 MS. BURTON: AND I DON'T KNOW WHAT THE OFFER OF 8 PROOF WOULD BE. 9 MS. DRYOVAGE: THERE'S A DOCUMENT THAT WE ATTEMPTED 10 TO GET IN THROUGH DR. CSEJTEY THAT WE WERE UNABLE TO, AND THE 11 OBJECTION WAS THAT HE COULDN'T AUTHENTICATE IT. HER TESTIMONY 12 AT THE MSPB AUTHENTICATES THAT DOCUMENT. IT'S -- IT'S THINGS 13 LIKE THAT WHERE WE WERE PREVENTED ON -- IN OUR CASE-IN-CHIEF, 14 AND WE HAD NO WAY OF KNOWING THAT THE GOVERNMENT WAS NOT GOING 15 TO CALL THE PEOPLE THAT THEY SAID THAT THEY WERE GOING TO CALL. 16 MR. SALTIEL: THAT'S NOT TRUE. 17 THE COURT: WELL, EVENTUALLY WE FOUND OUT WHO WAS 18 GOING TO BE CALLED, AND WHO WASN'T. 19 MS. DRYOVAGE: WELL, I FOUND OUT YESTERDAY THAT SOME 20 OF THE PEOPLE THAT WERE ON THEIR FINAL LIST WHICH I THOUGHT WE 21 WERE GOING TO BE ABLE TO GET THE DOCUMENTS IN THROUGH WERE NOT 22 HERE AND HAVE NOT TESTIFIED. 23 MR. SALTIEL: THAT'S NOT OUR RESPONSIBILITY. 24 THE COURT: NO, I ASKED THEM EACH DAY WHO WAS GOING 25 TO BE CALLED THE NEXT DAY, AND I KEPT A RUNNING LIST, AS YOU 1652 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE 1 COULD HAVE, OF WHO WAS COMING. AND SO SINCE LAST WEEK, WE'VE 2 KNOWN WHO WAS COMING AND WHO WASN'T. 3 MS. BURTON: AND IN ADDITION, YOUR HONOR, WE DID 4 SEND PLAINTIFFS' COUNSEL LISTS PERIODICALLY DURING THE TRIAL 5 TELLING HER WHO WE WERE GOING TO CALL. AND WHEN -- 6 THE COURT: YEAH, I DON'T THINK THIS IS A GOOD TIME 7 TO START OPENING UP A PANDORA'S BOX OF MOUNDS AND MOUNDS OF 8 MSPB TRANSCRIPTS. 9 OKAY. SO I THINK WE HAVE OUR SCHEDULE. AND THAT 10 SHOULD BE IT, THEN. 11 ALL RIGHT. THANK YOU. 12 (PROCEEDINGS WERE CONCLUDED AT 1:25 P.M.) 13 --O0O-- 14 15 16 17 18 19 20 21 22 23 24 25 WRUCKE - REDIRECT (REBUTTAL) / DRYOVAGE CERTIFICATE OF REPORTER I, RAYNEE H. MERCADO, OFFICIAL REPORTER FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS IN C98-02094 CW (EDL), ADAM, ET AL. V. NORTON, WERE REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY ME AT THE TIME OF FILING. THE VALIDITY OF THE REPORTER'S CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE COURT FILE. ___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR FRIDAY, JULY 25, 2003