transcript of the testimony of drew robertson, professional geologist

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

CIVIL DIVISION

JOHN P. CARROLL,

Plaintiff, vs. CASE NO. 09CA002021

WATERSOUND BEACH COMMUNITY ASSOCIATION, INC., Florida Corporation, WATERCOLOR COMMUNITY ASSOCIATION, INC., Florida Corporation, DAVID LILIENTHAL, individually and as Director, MARY JOULE, SANDRA MATTESON, RONALD VOELKER, JOHN DOE, JANE DOE, and OTHER UNKNOWN CONSPIRATORS,

Defendants. ___________________________________/ DEPOSITION OF: DREW ROBERTSON TAKEN AT THE INSTANCE OF: The Plaintiff DATE: June 21, 2011 TIME: Commenced at 3:05 p.m. Concluded at 4:05 p.m.

LOCATION: Dunlap & Shipman 2065 Thomasville Road Suite 102 Tallahassee, Florida REPORTED BY: JO LANGSTON Registered Professional Reporter

ACCURATE STENOTYPE REPORTERS, INC. 2894 REMINGTON GREEN LANE

TALLAHASSEE, FLORIDA 32308 (850)878-2221

2

APPEARANCES:

REPRESENTING THE PLAINTIFF: (Appearing pro se) JOHN CARROLL Box 613524 WaterSound, Florida 32461

REPRESENTING THE DEFENDANT WATERSOUND, LILIENTHAL, JOULE, MATTESON: (Appearing via telephone) CHRISTOPHER GEORGE, ESQUIRE Scott, Sullivan, Streetman & Fox, P.C.

56 St. Joseph Street Regions Bank Building, 10th Floor Mobile, Alabama 36602

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

ACCURATE STENOTYPE REPORTERS, INC.

3

1 INDEX

2 WITNESS PAGE

3 DREW ROBERTSON

4 Direct Examination by Mr. Carroll 4

5 Cross-Examination by Mr. George 33

6 Redirect Examination by Mr. Carroll 38

7

8

9

10 INDEX OF EXHIBITS

11 NO. DESCRIPTION PAGE

12 1 7Soil boring report

13 2 9Photographs

14 3 12E-mail dated 2/2/2010

15 4 21Three photographs

16 6 28Material Safety Data Sheet

17

18

19

20

21

22

23 CERTIFICATE OF OATH 41 CERTIFICATE OF REPORTER 42

24 ERRATA SHEET 43

25


4

1 P R O C E E D I N G S

2 The following deposition of DREW ROBERTSON was

3 taken on oral examination, pursuant to notice, for purposes

4 of discovery, for use as evidence, and for such other uses

5 and purposes as may be permitted by the applicable and

6 governing rules. Reading and signing of the deposition

7 transcript by the witness is not waived.

8 * * *

9 THE COURT REPORTER: Would you raise your right

10 hand, please.

11 Do you swear or affirm that the testimony that

12 you are about to give will be the truth, the whole

13 truth, and nothing but the truth?

14 THE WITNESS: Yes.

15 WHEREUPON,

16 DREW ROBERTSON

17 the witness herein, having been first duly sworn, was

18 examined and testified as follows:

19 MR. GEORGE: I just wanted to object on the

20 record, John, to any of his file that he brought

21 with him, I'm going to object to introducing any of

22 that into evidence, except for the parts that you've

23 identified on the exhibit list you've already given

24 us.

25 There are some parts of what should be in his


5

1 file that you've identified as an exhibit. The rest

2 of what's in his file we object to on the grounds it

3 hasn't been identified as an exhibit in a timely

4 manner.

5 MR. CARROLL: Okay.

6 THE WITNESS: Can I ask, who is on the phone?

7 MR. GEORGE: I'm sorry. This is Chris George.

8 We represent WaterSound, David Lilienthal, Sandra

9 Matteson and Mary Joule.

10 THE WITNESS: Thank you.

11 MR. GEORGE: Yes, sir.

12 DIRECT EXAMINATION

13 BY MR. CARROLL:

14 Q Could you state your name for the record,

15 please.

16 A Drew Robertson.

17 Q And are you a professional geologist?

18 A I am.

19 Q And what's the name of the firm that you work

20 for?

21 A Soils, Sediment & Subsurface.

22 Q In order to be a geologist, do you have to be

23 licensed in Florida?

24 A Yes.

25 Q Are you a licensed geologist?


6

1 A Yes.

2 Q And if you would, could you tell me

3 approximately when you obtained your license?

4 A I think I got my Florida license in probably

5 2002, 2003, somewhere in there.

6 Q Did you have to have special training to get

7 your license?

8 A Yes.

9 Q And what was that training like?

10 A You had to have a four-year degree from an

11 accredited, board-accredited university. And then I had

12 a master's degree on top of that, so it took down some of

13 my professional time, and you have to have five years

14 professional time, certified by either a professional

15 engineer or a professional geologist.

16 Q And that was all before you obtained your

17 license in 2002?

18 A Yes.

19 Q Do you think you could quantify how much

20 experience you have then?

21 A I've been doing either consulting work or work

22 with DEP, with the State, or in the private sector since

23 1999.

24 Q Okay. The soil study or the -- would you call

25 that a soil study, or what did you do out there at


7

1 WaterSound Beach?

2 A I was pretty much contacted just to pretty much

3 just identify the underlying soil types or what was

4 present at the test locations.

5 Q Is that kind of a test or analysis something

6 that's typical of a geologist?

7 A Yes.

8 (Plaintiff's Exhibit No. 1 was marked.)

9 MR. CARROLL: I'll go ahead and mark this first

10 one as Exhibit 1. I'm just going to call this P-1.

11 That will be Plaintiff's 1. And, Chris, so that you

12 know what I'm showing him, I'm actually showing him

13 the soil boring report. And it's on our exhibit

14 list. And I'll just ask you --

15 MR. GEORGE: You're talking about your

16 Exhibit 331, John?

17 MR. CARROLL: I don't know the number off the

18 top of my head, Chris.

19 MR. GEORGE: But it's the soil boring report,

20 it has six different borings, and it's dated

21 February 2, 2010?

22 MR. CARROLL: Let me see what that date was on

23 there. I think that's right.

24 THE WITNESS: Yes.

25 MR. GEORGE: Okay.


8

1 MR. CARROLL: I think I'm going to ask Drew to

2 take a couple of minutes and just familiarize

3 himself so he can identify this report here.

4 THE WITNESS: (Views document.)

5 BY MR. CARROLL:

6 Q Does that look to be the report that you

7 prepared that day?

8 A Yes.

9 Q And if I could, who hired you to perform that

10 report?

11 A My client was Bernadette Halloran, with -- I

12 forget the -- WaterSound Community or Property,

13 Properties, whatever it was.

14 Q How did Bernadette come to find you?

15 A I did work for -- I'm a partner in another firm

16 called Black Hawk Engineering, and we are the engineers

17 of record, I guess you'd say, for the St. George Island

18 Plantation. So when she was employed there, I worked

19 with her quite a bit on roadways, and we redid the

20 airport and some other stuff.

21 Q Was Bernadette the property manager there at

22 St. George Plantation?

23 A Yes.

24 Q Did you know her for quite a while? Had you

25 done a lot of work for her?


9

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

2 2007, somewhere like that, but I just knew her

3 professionally. She was our client. She was our kind of

4 liaison to the multiple boards at the St. George Island

5 Plantation, so we would deal with her kind of and feed

6 through to the boards. She was kind of our point of

7 contact down there.

8 Q Do you remember much about the conditions that

9 day?

10 A At WaterSound?

11 Q Yes, at WaterSound.

12 A I do. When I look back over the report, I

13 mean, I don't just -- you know, I've done a lot of work

14 since then. This was in February of 2010. But I do

15 remember drilling around the electrical transformer and

16 on the -- I guess that would be the west side of your

17 home, I think along the main roadway that goes over to

18 that pond, I think.


20 MR. CARROLL: Chris, I'm going to show Drew a

21 couple of pictures that were exhibits from the

22 Rosenheim deposition, and I'm going to call these

23 Plaintiff's 2. I'm just going to ask Drew, if he

24 could, does this look like the home that was at the

25 location?


10

1 MR. GEORGE: John, are those photographs on

2 your list of trial exhibits?

3 MR. CARROLL: Yes. The Rosenheim deposition

4 and all the exhibits to it are on my list of trial

5 exhibits.

6 MR. GEORGE: Okay.

7 THE WITNESS: Yes. I remember this feature

8 quite a bit. We were working right over in here.

9 MR. CARROLL: That's what I was going to do.

10 Chris, you don't have the benefit of being here, but

11 I'm going to try and ask Drew to look at his soil

12 boring report. And then, if he could, I'll give him

13 a magic marker and ask him to just highlight the

14 areas on these photos of Lot 24 where he thinks we

15 may have conducted the study. If you'd take this

16 magic marker.

17 MR. GEORGE: Is there a boring location figure

18 attached to his soil borings report?

19 MR. CARROLL: Yeah. I think the problem is the

20 sole boring report is out of scale. And it might be

21 better for everybody in the long run to have him

22 authenticate a little bit on these actual photos.

23 BY MR. CARROLL:

24 Q If you could, try and --

25 A It's too bad it's not an aerial looking down.


11

1 It was over in here, was the primary area. And then we

2 drilled somewhere, just at one boring back here as well.

3 Q We were talking about a transformer, I think,

4 and I wonder if that transformer can be seen near this

5 stop sign or not in this photo.

6 A That's hard to tell. It's generally right

7 in -- somewhere in this area.

8 Q You can go ahead and just put a circle on there

9 where you think it was, best that you can.

10 A It's down here somewhere.

11 Q And I'll just have you just put a number one by

12 the first circle you made and a number two by the second.

13 On your soil boring report, there was one location that

14 had five borings done and another one that had just one.

15 Which one of those circles had the five borings done by

16 it?

17 A Number one.

18 Q And number two, how many borings did you do

19 there?

20 A Just one.

21 Q Now, what I'm going to ask you is, if you

22 could, right after you left that day -- well, let me just

23 ask you, if there's a way for you to know, do you know

24 what day you actually conducted that study?

25 A I could look on my phone and probably find out.


12

1 Q Okay.

2 A You're talking about the actual like weekday?

3 Q I'm sorry. The date, that's all I mean.

4 A February 2nd.

5 Q Okay. There's an e-mail that was sent out in

6 the case.

7 MR. CARROLL: And, Chris, I don't have the

8 exhibit number, but it was part of David Lilienthal,

9 Mary Rosenheim, and I believe Jack Luchese's

10 depositions, which were all exhibits to the case.

11 BY MR. CARROLL:

12 Q I wrote an e-mail or I purport that I wrote an

13 e-mail on February 2nd, but I didn't write it until

14 3:30 in the afternoon. Do you know if you were at this

15 site before 3:30 or after 3:30 in the afternoon?

16 A I was there before.

17 Q If you could, just glance over this e-mail.

18 We'll just call it Plaintiff's 3. I wanted to see if

19 that's an accurate representation of what happened out

20 there that day.


22 MR. GEORGE: John, can you tell me the date and

23 the time it was sent and who it was from and who

24 it's to?

25 MR. CARROLL: Sure. It was on February 2nd,


13

1 2010, at 3:30 in the afternoon, and it was to you.

2 It was to Jack Luchese and to Gary at Dunlap,

3 Shipman.

4 THE WITNESS: (Views document.)

5 BY MR. CARROLL:

6 Q That e-mail that you just read, do you know if

7 that's a fairly accurate assessment of what you found out

8 there that day?

9 A Well, I mean, some of the terms I'm not real

10 sure, you know, these binders that you're talking about,

11 "lead me to believe that cured emulsion or binder." It

12 seems logical. And I'm not sure, with pressure-treated

13 wood and other materials, a wash-out or lay-down zone,

14 you know, I'm not exactly sure what you meant there. I

15 can say, on the stuff I encountered, you know, six inches

16 of asphalt, in some spots three inches, areas with

17 limestone gravel, buried roots and limbs one inch in

18 diameter, that stuff is clearly a fill material of some

19 sort. Whether it was smoothed out or just dumped, I

20 don't know.

21 Q That's a good question to talk about now. That

22 material that you found in your soil borings, is it

23 naturally occurring in that area?

24 A No.

25 Q Is it naturally occurring anywhere, to find


14

1 that kind of stuff under --

2 A No. Normally, you -- organic material like

3 this, what I was calling peat-type material, that is very

4 common in coastal areas where either the area at one time

5 was filled and that's the old organic mat or a marsh type

6 sediment or where sea level through time has

7 transgressed, as we call it, and the beach kind of

8 horizon overlays the old peat horizon. That's what we

9 call transgression sequence.

10 But the limestone gravel, you don't get

11 limestone gravel lenses in that coastal environment.

12 What we call the classic wedge there at the coast, which

13 is an unconsolidated sediment, it doesn't lend itself to

14 have limestone there. And asphalt, definitely not.

15 That's a man-made product.

16 Q While we're talking about the limestone on

17 there, where is that classically found; do you know?

18 A Limestone in that area should be mined --

19 probably the closest mine I can think of off the top of

20 my head would be somewhere up in the uplands, Marianna,

21 I-10 corridor, or probably somewhere from Carrabelle.

22 Q That's a pretty good ways from WaterSound. Do

23 you know about how far that it from WaterSound?

24 A As a crow flies, Carrabelle to WaterSound is a

25 hundred miles probably. I'm not real familiar with the


15

1 limestone pits north of the Destin area. There's

2 definitely limestone at depth up there. Marianna Caverns

3 is limestone.

4 Q We were talking about just a second ago about

5 the word "pits" or "mines." Does that classically occur

6 within the first three feet of the surface, or is it at a

7 deeper depth?

8 A Well, a mine, typically your limestone mines

9 are not -- typically you don't get limestone crushed up

10 in gravel like this. This is what street guys call --

11 this would be lime rock. This is crushed up aggregate.

12 Limestone comes out of the ground, either you blast it or

13 you pound it, and you get big boulders. And then you

14 mechanically break the boulders down to the size that you

15 need. So you really don't get -- limestone doesn't

16 weather like granitic rock or anything, where you get

17 little pea gravel or anything. If it was rolling around

18 in a stream, it would just degrade into nothing.

19 Q Okay. What about the asphalt that you

20 mentioned in the report, do you remember picking any of

21 it up and breaking it that day?

22 A I don't recall.

23 Q What I'm wondering specifically is do you

24 remember the presence or lack of presence of aggregate in

25 that asphalt material?


16

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

2 stated that, and I think I recall you and I talking about

3 that, that it looked more like it was the slag or kind of

4 like cold patch, but I don't truly remember that off the

5 top of my head. I don't know if it's just been refreshed

6 from this or not.

7 Q That's fair. If it had aggregate in it, could

8 you break it with your hands; do you know?

9 A Asphalt should not be -- you should not be able

10 to break the aggregate in asphalt with your hand. It

11 should be a granitic rock, probably out of southern

12 Alabama, somewhere like that.

13 Q Do you know what the ingredients are that make

14 asphalt or any of the ingredients from asphalt?

15 A Yes. You have an aggregate. You have some

16 sand. You have the emulsifiers and the kind of glue, if

17 you want to say, which is the tar and petroleum

18 constituents. And it kind of binds that in so it's what

19 we call a flexible pavement. But it's kind of a mixture

20 of sands and kind of a coarse fraction of sediment, and

21 then the clean sand is aggregate, and then your asphalt,

22 your bituminous materials.

23 Q We were just talking about the glue, I guess

24 you said. And I'm just wondering, do geologists know

25 about that kind of stuff in their business? Is that


17

1 something that you need to understand or be able to

2 identify?

3 A We're not, per se, in school trained. Roadway

4 construction and the products to make roadways are not in

5 my formal education. I've been doing geotech work for

6 most of my time, so just from working with road engineers

7 and being affiliated with a structural and civil company

8 that designs roads, I know what I need to.

9 Q That's a great time to bring it up. What does

10 a geologist like yourself normally do? What's your

11 function as your job?

12 A Most times it's to conduct testing. Either we

13 call it materials testing on roads, asphalt, concrete,

14 sieve samples, run plasticity limits on samples to tell

15 kind of what state the soils are in, and really anything

16 that's dealing with subsurface. And you can cross over.

17 There's groundwater, and there's all kinds of things,

18 environmental contaminant plumes.

19 Q Do geologists interpret or order for any reason

20 compaction tests on soil?

21 A Yes.

22 Q And what's a classic, I guess you'd say --

23 we're talking about in residential construction anyway.

24 Why would somebody normally order a compaction test on

25 soil in residential construction?


18

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

2 just know it by code. And within the Florida building

3 code it states, anywhere that there has been known fill

4 or fill over 18 inches, you're required to get compaction

5 tests, or anything where the building inspector deems

6 that they know that you need compaction tests.

7 And all of our structural drawings -- and we do

8 compaction tests -- Leon County requires them for every

9 slab, every pad, under every structure that's got fill.

10 Q What's the concern if somebody builds a home on

11 uncompacted soil?

12 A The home will differentially settle. The soils

13 will compact with time. And since you now have a house

14 sitting on that soil, it will subside as the soils

15 subside.

16 Q I understand. As a geologist, have you ever

17 heard the term "polycyclic aromatic hydrocarbons"?

18 A Yes.

19 Q Commonly I guess they're known as PAHs?

20 A Uh-huh (indicating affirmatively).

21 Q Can you describe what a PAH is?

22 A PAH is -- I used to do a lot of environmental

23 work. And PAHs are the heavy constituents when you run a

24 mass spectrometer on petroleum constituents, and they're

25 the constituents that -- on a mass spectrometer, they're


19

1 on the heavy side of the curve. They're a product of

2 diesel fuels, heavy oil fuels. At least in the

3 environmental world, that's the way I know them. I'm

4 sure there are other chemicals that they are derived

5 from.

6 They're a particular, not element, but the

7 carbon chain that makes them, they're like a species.

8 They're their own piece, but they can be mixed in with a

9 whole bunch of other stuff to form fuel.

10 Q Do you know if PAHs are considered a

11 carcinogen?

12 A PAHs, there's many -- there's a couple

13 different elements, or not elements, there's a couple

14 different chemicals that are within the PAH

15 classification. I do think they are. I'm not sure.

16 Q I'm going to slightly change my line of

17 questioning. I just wondered, are PAHs a byproduct or

18 are they evident in the binders or emulsions that we

19 talked about to form asphalt? And when I say the

20 emulsions, I'm talking about just the petroleum-based

21 ones.

22 A I'm not sure.

23 Q Do you know anything about the effects of PAHs

24 reaching the groundwater? Is there any concern about

25 that amongst geologists, or is it something that's


20

1 usually studied?


3 Q It is?


5 Q What's the concern? Why would somebody look

6 into that type of thing?

7 A Well, most times your PAHs are within the --

8 DEP has a certain -- in Florida at least, DEP has a

9 certain criteria. When you expect a site to have

10 contamination, you usually fall back on the DEP

11 guidelines that you test for VOCs, PAHs, some other --

12 they've got stuff called the FL-PRO, the Florida

13 Petroleum Range Organics. And PAHs are part of that.

14 So I don't know that table out of the Florida

15 Statutes off the top of my head, but there's a reason

16 we're looking for PAHs. And that would have to mean

17 there's a threshold either established by EPA or by DEP

18 that they don't want you to exceed. That's my thought,

19 what I would think is the reason we look for it.

20 Q That's very fair.

21 MR. CARROLL: Chris, I'm going to show Drew

22 Exhibit L to the second amended complaint, and that

23 is somewhere around P-36, Plaintiff's 36,

24 Plaintiff's 236 rather. I'm going to call it for

25 purposes of this deposition Plaintiff's 4.


21


2 BY MR. CARROLL:

3 Q And I just wanted to let you take a second and

4 familiarize yourself with those photos. I think there's

5 three of them there.

6 A Okay. (Views document.)

7 Q I'm going to actually letter them. I'll go

8 with A, B and C, just to make the record clear. I don't

9 know if I'm writing upside down or not. In photo C,

10 which I think is page three of that exhibit, I allege

11 that that's a photo of the footing line at Lot 24. And

12 I'm just wondering if you notice anything peculiar about

13 the soil in that photo, in your opinion, as a geologist.

14 MR. GEORGE: Object to form.

15 THE WITNESS: What was that?

16 BY MR. CARROLL:

17 Q He just objected to form. You can answer.

18 A It looks like to me there's -- if that's a

19 normal footer, I'm expecting it to be 16 inches deep

20 maybe. Maybe that's a little deeper, 24 inches. And

21 there's three different very distinct soil layers, which

22 I wouldn't expect.

23 Q When you say that you wouldn't expect, is that

24 a natural occurrence near the coastline, to see something

25 like that in a footing path?


22

1 A I would not expect it.

2 Q And I guess, just for record purposes, can you

3 tell me why you wouldn't expect to see that?

4 A Well, when you get -- these are what we call

5 unconformities here and here. These differences between

6 the sediment packages indicate some sort of big

7 environmental change. If they were deposited naturally,

8 there would be something shifted and changed

9 significantly to get this white band, and then something

10 changed again significantly to get this reddish brown

11 band above it.

12 Typically, you don't get that. You know, maybe

13 at the end of a barrier island or, you know, where the

14 island is moving around a bit, but that's -- just working

15 at the coast, I wouldn't expect to see that.

16 Q For Chris' purposes anyway and for the record,

17 what we're talking about are these more or less three

18 distinct stripes of soil that you see in that photo. Is

19 that correct?

20 A Yes.

21 Q I think I heard you say you expect to see that

22 from some significant -- what was the word you said?

23 A You'd expect an environmental change, some sort

24 of depositional environment change to get -- if that was

25 truly deposited sediment, you would have to have either


23

1 some sort of catastrophic landslide or something to get a

2 transition that sharp, or say like a huge hurricane that

3 blasted over the coast and we got a new bit of sediment

4 down and then the coast came back to its old spot and we

5 got new deposition on top of that, something pretty

6 significant.

7 Q Let me go ahead and ask you then, do you know

8 of any satellite imagery programs where somebody might go

9 to refer and look at lots like this one to see if there

10 were any major events over time?

11 A It's been a while. I did my master's work on

12 coastal geology at the tip of Cumberland Island. And I

13 used stuff from -- because I was mapping out storms and

14 sediment packages like this on a tip of an island. And

15 I'm pretty sure DEP has historical hurricane paths to

16 like the 1800s. And then satellite imagery, DOT has a

17 whole swath of aerial coverage back to the fifties. And

18 I'd have to look. I can't recall where else I pulled

19 data from.

20 Q What are some of the other ways that one would

21 explain how soil could come to look like that? Are there

22 any other ways?

23 A Well, without seeing the soil and being able to

24 see the textures or anything in it, because to me, this

25 looks like -- you know, it's hard to tell in these


24

1 photos -- but fill, fill material.

2 Q When we talk about fill, is it common in new

3 developments, for the horizontal development of the

4 neighborhood, for them to actually change the grade for

5 certain reasons?

6 A Yes.

7 Q And they'll do that by bringing in fill?

8 A Either fill or it can be off-site fill, it can

9 be on-site fill. You know, value-engineering-wise you

10 try to what we call balance a site, where you just shift.

11 If you're cutting over here, you're filling over here, so

12 that you're not hauling off material or anything.

13 Q I understand. That makes good sense. In the

14 first two photographs, they're called A and B -- let me

15 see if I can help in any way. There are some things that

16 I allege that I found in that same footing path, and I

17 just wondered, do you know if that's a natural

18 occurrence, or could that be man-made?

19 A Well, to me, from the photographs, especially

20 in A, it looks like there's a two-by-four facing me. So

21 that's -- at least that two-by-four and it looks like

22 these concrete blocks would be man-made material.

23 Q Let me ask this question. There's a program

24 that's called Google Earth. Have you ever explored that

25 at all?


25

1 A Yes.

2 Q Do you know if it has satellite imagery on it?

3 A Yes.

4 Q Do you know if you can slide a slide on there

5 to see different dates, satellite imagery from different

6 points in time?

7 A I'm fairly sure Google Earth lets you rotate

8 into older imagery. I'm fairly sure. I know DOT you

9 can.

10 Q Why does DOT save satellite imagery? What's it

11 used for?

12 A Well, most of their stuff isn't satellite.

13 It's aerial photography taken from just a camera hanging

14 out of the airplane, to simplify it. They use it a lot

15 for road alignments, looking at best areas to put roads,

16 because even if you have a surveyor on the ground,

17 sometimes you can look at the imagery and see a wetland

18 pocket that you would have to go around, because any

19 crossing like that is extra cost, retaining walls,

20 bridges, remediation, et cetera. So they do it for

21 alignments, for historical data, looking at floods. We

22 use them for flood stuff a lot.

23 Q Is there any way for somebody to know about

24 some of the topography just by looking at those photos?

25 A Yes, you can. It's called a -- if you have two


26

1 of the same photos side by side, there's a thing called a

2 stereoscope, where you put these glasses on over a fixed

3 kind of plane table, and you can look at them, and it

4 gives you some sort of topographic relief out of those.

5 Google Earth you can.

6 Q Pretty neat. I've never heard of that one.

7 What about something a little more simple? Are there

8 usual assumptions that can be made when you see actual

9 wetlands in something, that helps you determine the

10 topography there --

11 A Yes.

12 Q -- in relation to the surroundings?


14 Q Are wetlands normally higher ground or lower

15 ground?

16 A Lower ground.

17 MR. CARROLL: Chris, I'm going to show Drew a

18 couple of things that are in the photo. And they

19 were exhibits to Mary Rosenheim's and Bridget

20 Precise's.

21 BY MR. CARROLL:

22 Q We have an exhibit here that's called

23 Plaintiff's Exhibit 5, and I just wondered if that's

24 something that's naturally occurring along the beach

25 underground.


27

1 A No, I would not expect that.

2 Q This rod here, is that something that's

3 naturally occurring along the coast underground?

4 A No. It looks like a number six or seven bar,

5 rebar.

6 Q Does rebar deteriorate when it's underground?

7 A Yes.

8 Q Does it oxidize or anything?

9 A Yes.

10 Q What about this one? It's called Plaintiff's

11 Exhibit 4, and I think I'm seeing it in photograph B, but

12 I just wondered if you could identify what you think that

13 is.

14 A It looks like some sort of rivet system, where

15 these star screws come out maybe and the rivet pops off

16 and you use it for --

17 Q Have you ever come in contact with a device

18 that's called a powder actuated fastener?

19 A Yes.

20 Q Do you know what a power actuated fastener is?

21 A Yeah. It's like for attaching your bottom wall

22 plate to a floor, something like that, to a slab.

23 Q Why would somebody use a powder actuated

24 fastener to fasten something to a sill, I think you said?

25 A Well, most times it's so you don't have to


28

1 pilot drill a hole and put, you know, a big screw or

2 something down through a plate. You can just shoot it

3 in. These are like little .22 cartridges.

4 Q Well, that's what I was going to ask you is,

5 when they say powder actuated, what is the powder?

6 A If I recall, I think it's gun powder. I think

7 it's just -- it's got a primer and there's powder. Once

8 you detonate the primer, the powder explodes. And since

9 it's contained in a casing, it pushes the nail head out.

10 Q This document here is going to be the next

11 exhibit. Unfortunately, I don't remember what number

12 we're on. I think we were on 4.

13 A I think 4.


15 Q I'm going to call this Plaintiff's 6, just so

16 we don't accidentally duplicate. You described what a

17 powder actuated fastener was without looking at anything.

18 Is that the safety data sheet for a powder actuated

19 fastener?

20 A Yes.

21 Q What is a safety data sheet or a material safe

22 handling sheet?

23 A It's a standardized MSD sheet. It's a

24 standardized sheet that tells anybody who looks at it,

25 employees, employers, anybody, the chemical makeup of the


29

1 constituent, any kind of health safety issues, what you

2 have to do if you get it on you, just kind of a general

3 sheet over any kind of applicable item that may go on

4 with the material.

5 Q Let me just ask you about that. I guess in the

6 very beginning it says ingredients. And I just wondered,

7 the ingredients that are listed there, do you recognize

8 any of those terms from geology?

9 A I mean, through chemistry classes, I've seen

10 them. I couldn't tell you their elements or anything.

11 Nitroglycerin, it's pretty obvious what it is.

12 Q I'm going to skip down to this and just see,

13 there's probably a hundred ways to dispose of things like

14 this. And I just wondered if there are any listed on

15 here. Let's see. Here it is, waste disposal. Under the

16 waste disposal section there, I want you to just

17 familiarize yourself with that.

18 A Okay. (Views document.)

19 Q Is it okay to bury these to dispose of them?

20 A I would not think so, if these are still live

21 rounds, because it says misfires, and misfire would be a

22 round that did not ignite. No. They're supposed to --

23 I'm just reading this. Disposal method is in a burner

24 specifically designed to destroy ammunition.

25 Q Well, in your experience anyway, how many cases


30

1 of these is it okay to bury before you need to do some

2 kind of remediation?


4 BY MR. CARROLL:

5 Q You can answer, if you want to, or if you --

6 A I don't really -- I don't know the life cycle

7 of those, how they leak. I don't know enough about them

8 to answer that logically.

9 Q Would you need to have information contained on

10 one of these material data safety sheets in order to make

11 that determination?

12 A If I knew the -- the only way I know right now

13 to quantify how many you would need to leak to cause an

14 issue, I'd need to see how many parts per million or

15 parts per billion of the nitroglycerin, say, is in them,

16 and then see how much is allowed as target thresholds in

17 the Florida Statutes. And once you added up enough of

18 them to exceed that, I could tell you the number.

19 Q That makes good sense. Go back to the

20 beginning here. I think you said that Bernadette

21 Halloran was the one who hired you. Did you talk to

22 anybody else before you came to the site? Or I should

23 say anyone associated with WaterSound anyway.

24 A No, not that I recall.

25 Q Did Bernadette tell you specifically to look


31

1 for things like powder actuated fasteners?

2 A No.

3 Q There is something I had a question on on your

4 report. I want to make sure I'm understanding this.

5 There's something on here that I'm seeing. I guess it

6 says, on page one of your report, let's see. I see this

7 word "roadway base material." Is that what we were

8 talking about before, the limestone and things like that?

9 A Yes.

10 Q And then there's something that says "small

11 pockets of dark brown organic rich material." Do you

12 know what those were made up of?

13 A No, because I didn't -- wasn't requested to

14 actually break those down. But more than likely it was

15 leaf litter, root balls. I mean, most times when we hit

16 an organic pocket or zone, it's usually sticks, twigs,

17 leaves, grass.

18 Q The day that we went there, do you remember

19 about how many people were there that day?

20 A I recall I got to the site, I got to the

21 entrance, met Bernadette, came down, met you. And I

22 think Bernadette, you and I pretty much were there

23 drilling, and then some other gentleman showed up towards

24 the end.

25 Q When we talk about this other gentleman, do you


32

1 remember a man coming that had silver or gray-colored

2 hair, towards the end?

3 A I think so. I think he drove a big black

4 Suburban or big --

5 Q That was going to be my next question, but you

6 answered it for me. Do you remember if that gentleman

7 took any photos when he was there?

8 A Yes.

9 Q Did he take photos?

10 A Yes.

11 Q I've got to ask. Was there anything that you

12 pulled out of the ground in your soil samples that was

13 not naturally occurring there?

14 A Was there anything I pulled out of the ground

15 in my soil samples that was not naturally occurring?

16 Q Yes.

17 A Yes.

18 Q Okay. Did you take more than sand and rocks

19 out of the ground that day when you did your soil

20 borings?

21 A Yes.

22 MR. CARROLL: Well, that's all I have. Thanks

23 a lot.

24 CROSS-EXAMINATION

25 BY MR. GEORGE:


33

1 Q I have a few. Can you hear me okay?

2 A I'm sorry. Can you repeat that?

3 Q I said I have a few questions. Can you hear me

4 okay?

5 A Yes, sir.

6 Q Let me ask you, on this boring location figure

7 that's part of your borings report --

8 A Yes, sir.

9 Q -- can you tell me if those boring locations

10 were on the lot on which Mr. Carroll was building a house

11 or on the common area immediately adjacent to the lot on

12 which he was building a house?

13 A I don't know if there were lot survey flags

14 when I was there, and I don't recall being more than a

15 few feet away from the electrical transformer, but I

16 don't know, to tell you the truth. I don't recall seeing

17 survey flags.

18 Q I'm looking at the letter dated February 9,

19 2010, from you to Bernadette Halloran.

20 A Yes.

21 MR. GEORGE: John, it's marked page 862 in your

22 production.

23 MR. CARROLL: Okay.

24 BY MR. GEORGE:

25 Q And the last sentence in the second paragraph


34

1 says that when you arrived, the owner, John Carroll, was

2 present to determine the boring locations. Did John

3 Carroll, in fact, pick the locations on which you took

4 your bore samples?

5 A I think that Mr. Carroll pointed out areas, and

6 then I just drilled holes in multiple areas.

7 Q But in the areas that he pointed out?

8 A I assume so, if I put that in the report. I

9 don't recall. Bernadette was there with me, and I don't

10 really recall.

11 Q But you wouldn't have put that in your report

12 if it wasn't true, would you?

13 A No, sir.

14 Q At any time while you were out there that day

15 did Mr. Carroll mentioned to you any concerns he had

16 about the possibility of there being powder actuated

17 fasteners in the subsurface soil at that lot?

18 A No, sir, not that I recall.

19 Q While you were out there, did Mr. Carroll

20 mention having any concerns about there being PAHs or any

21 kind of cancer-causing material in the subsurface soil on

22 that lot?

23 A Not that I recall.

24 Q If you look at the -- I guess you'd call this

25 your boring sheet that I think John marked as Exhibit 1,


35

1 where it's got the boring numbers and the soil

2 descriptions?

3 A Yes, sir.

4 Q Do you have that in front of you?

5 A Yes, sir.

6 Q On that first boring, it looks like you didn't

7 find any asphalt or foreign material; is that right?

8 A That's right.

9 Q On the second one, the second boring, in the

10 first six inches you found some asphalt; is that right?

11 A Yes, sir.

12 Q Beyond that, what you found was a little bit of

13 gravel and a few long roots and that's it; is that

14 correct?

15 A Yes, sir.

16 Q And the same would be true of your third and

17 fourth borings; is that right?

18 A Well, the fourth boring I had some one-inch

19 limbs down deeper. And the third boring had a real

20 organic-rich like peat material in between -- up under

21 that asphalt and gravel, as you said.

22 Q I see that. And then on the sixth boring, the

23 only thing you found were a few small roots; is that

24 right?

25 A Yes, sir.


36

1 Q Would you say that based on your bore samples,

2 there was an excessive amount of debris or fill material

3 in the soil on this lot?

4 A Debris, I don't -- define debris. Like

5 anthropogenic debris?

6 Q Well, just anything that you would characterize

7 as debris. What do you call debris?

8 A Most debris, you know, when we are telling

9 somebody to remove debris, it's usually -- we usually

10 consider it anthropogenic material of some sort, trash,

11 construction stuff.

12 In this case, the only true debris, if you

13 define it that way, that I found would be the asphalt and

14 limestone gravel. I didn't note -- let me look. I don't

15 think I recalled hitting trash in my borings.

16 Q Well, did you find anything that would cause

17 you to recommend the removal or any kind of remediation

18 be done before you build on that lot?

19 A Before I would -- if I was the testing engineer

20 on this or testing geologist, if this was running through

21 my firm, I would recommend some bearing values on what I

22 thought was fill material, to verify that it was placed

23 in correctly.

24 Q And assuming those bearing tests turned out

25 okay, then you wouldn't recommend any further action?


37

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

2 The area where you've hit the organic material, like in

3 B-3, 30 to 36 inches, you're not allowed, per code, to

4 have an organic material within a certain depth of your

5 foundation. If you do, you have to design a foundation

6 to compensate for it.

7 So like that one, I would recommend at least

8 cutting that material out to 36 inches and backfilling

9 with properly compacted material.

10 Q Did you recommend that to Mr. Carroll?

11 A No, I did not.

12 Q Did you recommend that to Ms. Halloran?

13 A No, I did not.

14 Q Why not?

15 A My task, when I talked with Bernadette, was to

16 report what I found.

17 Q Okay. Did Mr. Carroll ever ask you if he

18 needed to do any remedial work, as far as the subsurface

19 soil was concerned?

20 A I don't recall Mr. Carroll asking me much of

21 anything, to be honest. When I got to the site, they

22 pointed around to an area, Bernadette and Mr. Carroll,

23 and if I recall, they kind of talked and I drilled.

24 I don't recall much conversation, to be honest.

25 I didn't really even know what I was supposed to be doing


38

1 there except just drilling holes.

2 MR. GEORGE: I think that's all I have. I

3 appreciate your time.

4 THE WITNESS: Okay. Thank you very much.

5 MR. CARROLL: Chris, I'll briefly redirect on

6 those questions.

7 REDIRECT EXAMINATION

8 BY MR. CARROLL:

9 Q We talked about what you were hired to do. And

10 I think you said to both Chris and I that you were

11 essentially hired to conduct soil borings and tell

12 Bernadette what you found.


14 BY MR. CARROLL:

15 Q Is that an accurate statement?

16 MR. GEORGE: Same objection.

17 BY MR. CARROLL:

18 Q You can still answer.

19 A Yes. If I recall correctly, the task I had was

20 just to drill some borings down to either groundwater --

21 I can't remember what we established, the depth. They

22 were just shallow borings to just determine the

23 underlying materials and to report on that, was pretty

24 much my task.

25 Q And in your experience, could you tell me if


39

1 you could grow plants in that material in the first

2 12 inches, I guess?

3 MR. GEORGE: Object to form. I think you're

4 going beyond the redirect, John. So I'm going to

5 object on that ground as well.

6 BY MR. CARROLL:

7 Q That's okay. You can go ahead and answer that.

8 A Obviously, in the areas where you've got from

9 surface to six inches or three inches asphalt, no. I

10 mean, obviously you'd have to remove that. But I assume,

11 with the sand, it looks like you've got sand mostly to

12 two feet, until you hit limestone gravel. So I assume

13 you could. Obviously, sand you've got watering issues

14 with sand.

15 Q If Bernadette had told you that there was

16 construction debris discovered within a few feet of those

17 soil boring sites, would you have recommended any

18 remediation in that area?

19 MR. GEORGE: Object to form, and I'm objecting

20 on the grounds you're going beyond the scope of

21 redirect, John.

22 BY MR. CARROLL:

23 Q That's okay. You can go ahead and answer.

24 A If somebody would have asked me or if there

25 was -- if somebody would have asked me if something


40

1 needed to be done to remove a bunch of construction

2 debris from a site or how to do it, I would obviously say

3 what to do. In this instance, I don't recall being asked

4 that. And unless there was some issue of public safety

5 or something that I'm bound to ethically, for me to say,

6 it was beyond my scope. I was told to do this bit and

7 get gone, and I did.

8 Q The last question I have relates to a question

9 that Chris asked about one of these sites, and it was

10 where we talked about limbs. Where did I see that on

11 this list? Brown moist sand with one-inch diameter

12 roots, how deep below the ground was that, that you

13 discovered that?

14 A Thirty to 36 inches, in B-4.

15 Q Is it normal to find a limb 36 inches below the

16 ground?


18 THE WITNESS: No.

19 MR. CARROLL: That's all I have. Thanks a lot.

20 MR. GEORGE: I don't have anything else.

21 (Whereupon, the deposition was concluded at

22 4:05 p.m.)

23

24

25


41

1

2 CERTIFICATE OF OATH

3

4 STATE OF FLORIDA )

5 COUNTY OF LEON )

6

7

8

9 I, the undersigned authority, certify that said

10 designated witness personally appeared before me and was

11 duly sworn.

12

13 WITNESS my hand and official seal this 22nd day of

14 June 2011.

15

16

17 _______________________________

18 JO LANGSTON, RPR Notary Public

19 1-800-934-9090 850-878-2221

20

21

22

23

24

25


42

1 CERTIFICATE OF REPORTER

2

3 STATE OF FLORIDA )

4 COUNTY OF LEON )

5

6 I, JO LANGSTON, Registered Professional Reporter,

7 certify that the foregoing proceedings were taken before me

8 at the time and place therein designated; that my shorthand

9 notes were thereafter translated under my supervision; and

10 the foregoing pages number 1 through 40 are a true and

11 correct record of the aforesaid proceedings.

12

13 I further certify that I am not a relative,

14 employee, attorney or counsel of any of the parties, nor am

15 I a relative or employee of any of the parties' attorney or

16 counsel connected with the action, nor am I financially

17 interested in the action.

18

19 DATED this 22nd day of June 2011.

20

21 _____________________________

22 JO LANGSTON, Registered Professional Reporter

23 1-800-934-9090 850-828-2221

24

25


43

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23 _______________________ ____________ Signature Date

24 Deposition of DREW ROBERTSON taken on June 21, 2011.

25 RE: John P. Carroll v. WaterSound, et al.


transcript of the testimony of drew robertson, professional geologist

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