0001 1 SUPERIOR COURT OF NEW JERSEY 2 LAW DIVISION - MONMOUTH COUNTY 3 DOCKET NO. MON-L-3765-06 4 5 - - - 6 FILOMEN DA CRUZ, ALECINA RODRIGUEZ,: and FRANCIELLE DA CRUZ, : 7 Plaintiffs, : vs. : 8 MARTIN CAMMARANO, SEA COAST : CHEVROLET, JOHN DOES 1-5 and : 9 ABC BUSINESS ENTITIES 1-5, : Defendants, : 10 - - - 11 APRIL 2, 2009 12 - - - 13 Oral deposition of STEPHEN EMOLO held in the offices of JOHN DESCH ASSOCIATES, 14 INC. 28 Newark Pompton Turnpike, Riverdale, New Jersey, commencing at 10:30 a.m. on the 15 above date, before LAURA WESTRA Certified Court Reporter and Notary Public. 16 17 18 19 * * * 20 21 22 23 24 25 0002 1 A P P E R A N C E S: 2 3 KEEFE, BARTELS & CLARK, LLC 4 Attorneys for the Plaintiffs 5 170 Monmouth Street 6 Red Bank, New Jersey 07701 7 BY: GERALD H. CLARK, ESQ. 8 732-224-9400 9 10 11 DWYER, CONNELL & LISBONA, ESQS. 12 Attorneys for Defendant/Cammarano 13 100 Passaic Avenue 14 Fairfield, New Jersey 07004 15 BY: CHARLES B. CAREY, ESQ. 16 973-276-1800 17 ccarey@dcllaw.com 18 19 MONTGOMERY, CHAPIN & FETTEN, PC 20 Attorneys for Defendant/Sea Coast Chevrolet 21 745 Route 202/206, Suite 101 22 Bridgewater, New Jersey 08807 23 BY: JOHN S. FETTEN, ESQ. 24 908-203-8833 25 0003 1 - - - 2 I N D E X 3 WITNESS PAGE NO. 4 STEPHEN EMOLO 5 By MR. CLARK 5 6 - - - 7 E X H I B I T S 8 NO. DESCRIPTION PAGE NO. 9 EMOLO-1 PHOTOS (21 PAGES) 6 10 EMOLO-2 PHOTOS (22 PAGES) 6 11 EMOLO-3 CV 6 12 EMOLO-4 POLICE PHOTOS (20 PAGES) 6 13 EMOLO-5 FOLDER 6 14 EMOLO-5A FIELD SKETCH 14 15 EMOLO-5B DECELERATION TEST 14 16 EMOLO-5C CALCULATIONS 14 17 EMOLO-5D VIN INFORMATION 14 18 EMOLO-5E BILLS 16 19 EMOLO-5F DVD 16 20 EMOLO-5G CALL FORM 72 21 EMOLO-5H RECONSTRUCTION DIAGRAM 114 22 EMOLO-6 RECONSTRUCTION DIAGRAM 114 23 24 (Exhibits retained by counsel.) 25 0004 1 DOCUMENT REQUESTS PAGE NO. 2 3 DEPOSITION TRANSCRIPTS 10 4 CERTIFICATE OF COMPLETION 25 5 NORTHWESTERN UNIVERSITY TRAFFIC 6 INSTITUTION TRANSCRIPT 26 7 UNIVERSITY OF FLORIDA CERTIFICATE 28 8 NORTHWESTERN UNIVERSITY CERTIFICATE 29 9 COPY OF ACTAR CERTIFICATION 58 10 COURT TV COMMENTATOR TAPE 60 11 URBAN WORK ZONE SAFETY CERTIFICATE 61 12 PERSONNEL FILE 66 13 ORIGINAL CHIKANIAN-1 EXHIBIT 109 14 15 16 17 18 19 20 21 22 23 24 25 0005 1 S T E P H E N E M O L O, 28 Newark Pompton 2 Turnpike, Riverdale, New Jersey, is duly 3 sworn by a Notary Public of the State of New 4 Jersey and testifies under oath as follows: 5 DIRECT EXAMINATION BY MR. CLARK: 6 Q Good morning, Mr. Emolo. My name is 7 Jerry Clark. I am an attorney. I represent the 8 plaintiffs in the case. You understand that you are 9 here today for your deposition? 10 A Yes. 11 Q Okay. Have you ever had your 12 deposition taken before? 13 A Yes, I have. 14 Q Okay. About how many times? 15 A Roughly about 30. 16 Q Okay. I will refresh your memory as to 17 some of the instructions for the deposition. You 18 understand that in a deposition setting you are 19 sworn under oath to tell the truth? 20 A Yes, I do. 21 Q Okay. You understand that there is a 22 transcript being created and the transcript can be 23 used at the time of trial to cross-examine you? 24 A Yes. 25 Q Okay. So it is important if you don't 0006 1 understand any of my questions to let me know, okay? 2 A Yes. 3 Q If you answer a question, I am going to 4 assume that you understood it, okay? 5 A Okay. 6 Q If you don't know the answer to a 7 question, it is perfectly okay to say that you don't 8 know, as long as that is the truth, okay? 9 A Yes. 10 Q Just going through your file a bit, do 11 you keep the file in a big folder, like one folder? 12 A Yes. 13 Q All right. I would like to mark the 14 folder. 15 (Whereupon, exhibit Emolo-1, Emolo-2, 16 Emolo-3, Emolo-4 and Emolo-5 are received and marked 17 for identification.) 18 MR. FETTEN: Let me put on the record 19 now, Mr. Clark, what we have removed from the file 20 as privileged: January 5, '09 letter from myself to 21 the expert; October 22, 2008 letter from myself to 22 the expert and an additional copy; June 17, '08 23 letter from myself to the expert; June 27, '08 24 letter from the expert to us regarding fees for 25 depositions; there is also the fee schedule which I 0007 1 think we have provided to you; June 25, 2008 letter 2 from myself to the expert; April 9, 2008 letter from 3 Mr. Carey to the expert; February 21, 2008 letter 4 from Mr. Carey to the expert; February 20, 2008 5 letter from Mr. Carey to the expert; December 14, 6 2007 letter from the expert's office to predecessor 7 counsel for the defendants, and a August 10, 2007 8 proposal and assignment acknowledgment from the 9 expert to predecessor counsel, fax cover page and a 10 July 30, 2007 letter from predecessor counsel to the 11 expert and internal summary information from the 12 expert; August 2, 2007 letter from the expert to 13 predecessor counsel. That is a list of privileged 14 communications that have been removed from the file. 15 MR. CLARK: What about the other one? 16 MR. FETTEN: That is the same August 17 10, 2007 communication from the expert to 18 predecessor counsel; April 7, 2008 letter from 19 myself to the expert. 20 Q We have marked as Emolo-5 for 21 identification your case folder. And the documents 22 that you have allowed me to look at from that 23 folder, are those all the documents contained within 24 your file, except for the documents that Mr. Fetten 25 just mentioned on the record as to a privilege log? 0008 1 A Yes, they are. 2 Q Just for the record, we have also 3 marked from your file a number of other exhibits. 4 We have marked as Emolo-1 a series of photographs, 5 and we have written on the cover of each page in the 6 lower right-hand corner number 1 through 21, 7 respectively. We have also marked as Emolo-2 8 another series of photographs which we have also 9 marked 1 through 22, respectively, in the same 10 manner. We have also marked your CV as Emolo-3, 11 which is a four-page document that we have marked. 12 We have marked as Emolo-4 the police photographs 13 exhibit, each page of which has been marked 1 14 through 20 in the lower right-hand corner, 15 respectively. 16 I want to go through your CV. Do you want 17 another copy? 18 A There is a copy here. 19 Q Okay. In your report? All right. You 20 understand that we have marked your file as evidence 21 so you should maintain it through the end of the 22 case and for trial? 23 A Sure. 24 Q Okay. We will put these photos in the 25 middle because we may use them throughout the 0009 1 deposition. Okay. Let's talk about your 2 educational background. Where did you go to high 3 school? 4 A It was a technical high school, Passaic County 5 Technical Vocational High School. 6 Q And how many years did you go there? 7 A Four. 8 Q And what year did you graduate? 9 A 1969, I believe. 10 Q And did you leave there with any 11 particular certification or certificate aside from a 12 diploma? 13 A No. 14 Q What did you study there? 15 A I studied -- there was a graphic arts course, 16 engineering drafting. 17 Q When you graduated there in or about 18 1969, what did you do next by way of schooling? 19 A I attended Newark College of Engineering, 20 their Division of Technology. 21 Q Okay. And how long were you there for? 22 A Two years. 23 Q Did you leave there with any particular 24 certification or degree? 25 A Certification, yes. 0010 1 Q In what? 2 A For completion of the course in municipal 3 engineering technology. 4 Q Do you keep any copies of any 5 depositions that you've had? You said you've had 6 about 30 depositions. Do you have copies of any of 7 those? 8 A I may have some if they were sent to me. If 9 they are not sent to me, I don't have copies. 10 Q If they were sent to you would they be 11 maintained in each separate file for which you 12 testified, or do you keep them together somewhere? 13 A They are kept in the separate files until the 14 case is completed and then they are moved downstairs 15 to our dead storage file. 16 MR. CLARK: For the record, I'd request 17 from Mr. Emolo copies of any deposition transcript 18 he has in any cases. 19 MR. FETTEN: We will have to get you a 20 cost analysis to see how much time would be involved 21 in doing that, and we will communicate with you on 22 that. 23 Q So at Newark College you had a 24 certificate in municipal what? 25 A Municipal engineering technology. 0011 1 Q And what was your next -- when did you 2 leave there about? 3 A '72. 4 Q And what did you do next after that by 5 way of schooling? 6 A That is when I started to the specialized 7 training in this field of traffic accident 8 reconstruction. In 1989 I attended Northwestern 9 University, their Traffic Institute. 10 Q Did you ever serve as a law enforcement 11 officer? 12 A No. 13 Q You attended that specialized training 14 at Northwestern in 1989. When did that complete? 15 A In '89, same year. 16 Q After the specialized training at 17 Northwestern, what was your next educational 18 experience? 19 A There may have been some seminars, special 20 problems classes, at either Northwestern or the 21 Institute of Police Technology and Management, at 22 the University of North Florida, but in 1992 I went 23 back to the University of North Florida and I 24 studied again in the same field. The course at that 25 time was the traffic accident reconstruction course. 0012 1 Q After the traffic accident course at 2 the University of North Florida, what was your next 3 educational experience? 4 A There are several, as I said, specialized 5 courses that I have taken and attended seminars. 6 They are listed on page two. Special problems at 7 the University of North Florida in '85, the S.O.R.E. 8 conference in 1987, the Notari (spelled 9 phonetically) conference in '90 and '92, the 10 combined conferences in '93 and '94. And all of the 11 curriculum that we studied at those courses are 12 listed on page two of the CV. There are several 13 other combined conferences from '95, '97, '98 and 14 '99. And then from that point I went back to 15 Northwestern University and studied the course in 16 micro computer assisted traffic accident 17 reconstruction. 18 Q That was in 2000? 19 A Yes. 20 Q Do you have a four-year college degree? 21 A No. 22 Q Did you work with Ms. Wieback on any 23 other cases other than this one? 24 A No. I did not personally, no. 25 Q Do you know how she found you? 0013 1 A No. An assignment came from her office to our 2 office. And at that point we logged it in doing an 3 initial evaluation and move forward from there, if 4 we are authorized to continue on the project. 5 Q Do you know if she worked for -- strike 6 that. 7 Do you know if she retained this company, John 8 Desch Associates, prior to this case? 9 A I believe there was at least one other prior 10 to this case. 11 Q Do you guys -- does John Desch 12 Associates have any special relationship with Zurich 13 Insurance Company where your company is sort of on 14 their approved list of experts? 15 MR. FETTEN: Objection to form. You 16 can answer the question. 17 A I don't know if they do or not. 18 Q Okay. Do you have -- so you don't have 19 a Bachelor of Arts degree or a Bachelor of Science 20 degree? 21 MR. FETTEN: Objection. Asked and 22 answered. Go ahead. 23 A No. 24 Q And you are not a Ph.D., correct? 25 A No. 0014 1 Q And you are also not a professional 2 engineer? 3 A No, I do not have my professional engineering 4 license. 5 Q Did you ever try to get it? 6 A No. 7 Q So you are not licensed in the State of 8 New Jersey to conduct engineering evaluations, are 9 you? 10 MR. FETTEN: Objection to form. 11 A I'm not licensed in any state to conduct any 12 type of engineering analysis. 13 Q Let's take a look at your file for a 14 sec here. 15 (Whereupon, exhibit Emolo-5A, Emolo-5B, 16 Emolo-5C and Emolo-5D are received and marked for 17 identification.) 18 Q All right. We have marked the 19 following exhibits: Emolo-5A is a seven-page 20 exhibit. Can you just tell us what that exhibit is? 21 A The exhibit is a field sketch of the accident 22 location which we prepared on October 18, '07, when 23 we arrived here to do our initial field 24 investigation. Attached to that is the printout 25 from the Sikia (spelled phonetically) Total Station, 0015 1 which is an electronic distance measuring 2 instrument. That is the instrument we used to 3 document the roadway conditions that existed at the 4 time of our inspection. Attached to that are all of 5 the raw data that was gathered from this instrument. 6 Q We have marked as Emolo-5B a two-page 7 exhibit. Can you just tell us what Emolo-5-B is? 8 A 5B is a printout of the results of our 9 deceleration test that we performed at the accident 10 location. They were performed using a 11 accelerometer, a Vericom VC3000. 12 Q We have marked as Emolo-5C a four-page 13 exhibit. Can you tell us what that exhibit is? 14 A These are just printouts of some of the 15 calculations we performed with regards to the 16 analysis of this accident. 17 Q And we have marked as Emolo-5D a 18 seven-page exhibit. Can you tell us what that is? 19 A This is a printout of the VIN information on 20 the accident vehicle so that we could obtain the 21 specifications from our expert data base on a 2006 22 Chevy Suburban vehicle. Attached with that are 23 three of our vehicle forms that were used to 24 document the measurements of the vehicles that we 25 had at the accident location when we performed our 0016 1 visibility testing. 2 (Whereupon, exhibit Emolo-5E is 3 received and marked for identification.) 4 Q Okay. And we have marked as Emolo-5E a 5 series of bills. Are these bills updated to just 6 before today? 7 A As far as I am aware of, yes, these are 8 updated up to today. 9 Q You were present at the accident 10 reconstruction that was conducted that's, at least 11 in part, recorded on the video, correct? 12 MR. FETTEN: Objection to form. It is 13 the phrase reconstruction that you are using that I 14 object to. 15 A It wasn't a reconstruction. It was our site 16 visit and visibility testing that was conducted. 17 (Whereupon, exhibit Emolo-5F is 18 received and marked for identification.) 19 Q So for the record, we have marked as an 20 exhibit 5F a sub-exhibit within exhibit 5. What is 21 that exhibit? 22 A That is a DVD copy of a videotape that we took 23 during our visit to the site when we conducted, as I 24 said, our visibility testing. 25 Q What was the purpose of that videotape? 0017 1 A Purpose of the videotape was to determine what 2 the sight lines and visibility distance would have 3 been for the two parties involved at the time of the 4 collision event. 5 Q How many times did your company visit 6 the site? 7 A I believe just -- I'd have to check, but I 8 believe just two. Just on one occasion. 9 Q Did your company ever perform or do any 10 accident reconstruction in this case, or no? 11 MR. FETTEN: Objection to form. 12 A When you say reconstruction, I don't 13 understand what you mean. Are you talking about a 14 reconstruction at the accident location when we were 15 doing our on-site inspection? 16 Q Well, I guess I mean accident 17 reconstruction in the way that it is contained on 18 the top of the letterhead of John Desch Associates. 19 MR. FETTEN: Objection to form. 20 A The accident reconstructionist in the form of 21 our report, after the field work is completed and 22 the analysis is completed, we then do a 23 reconstruction report which summarizes all of the 24 testing that we conducted, all of the materials 25 reviewed and the analysis, and then we formulate our 0018 1 opinions based upon that. 2 Q You are not an engineer, correct? 3 A No, I am not. 4 Q Do you have an associates college 5 degree? 6 MR. FETTEN: Objection to form. Asked 7 and answered. Go ahead. 8 A No. 9 Q So no two-year associates college 10 degree, correct? 11 A I have two years of college, but I do not have 12 an associates college degree. 13 Q Is the Newark College of Engineering 14 Division of Technology still around? 15 A Yes. Now it is referred to as NJIT, New 16 Jersey Institute of Technology. 17 Q Now, how long were you at the Newark 18 College of Engineering? 19 A Two years. 20 Q When you say two years, do you mean you 21 were there for 24 months? Or can you be more 22 specific on what that means? Like, for example, I 23 would say that normally if someone said they were in 24 college for two years, that would normally mean that 25 they started in September and finished about May or 0019 1 June of the following year, had a summer break and 2 then started the next September and finished about 3 May or June and then that would be the two-year 4 period. Can you give us some more detail as to what 5 you mean by having attended that institution for two 6 years? 7 MR. FETTEN: Objection to form. 8 A It was a two-year course. I couldn't tell you 9 the months that I attended or the months that I had 10 off in between the two years, but it was a two-year 11 course. 12 Q So it was just one course? 13 A It is a municipal engineering technology 14 course that extends for two years. It covers 15 several different fields in the field of civil 16 engineering. 17 Q I think a normal college course would 18 be about three credits. 19 MR. FETTEN: Hold on a second. I am 20 going to object to the form of the question. What 21 you may think -- ask the witness a question, but 22 there is no reason to preface it with your 23 understanding of things. Just ask the questions. I 24 object to the form. If you want to start over 25 because I interrupted you, please do. I know that 0020 1 is the way you ask questions, Mr. Clark, but I am 2 just going to object to the form of those types of 3 questions. Continue. 4 Q I omitted to give an instruction at the 5 beginning of the deposition, and it is actually my 6 fault. Do you understand that the court reporter 7 sitting to your right and to my left is taking 8 everything that is said in this room on the record 9 down? Do you understand that? 10 A Yes. 11 Q Okay. So it is, therefore, important 12 for you to verbalize all your responses to the 13 questions, okay? 14 A Yes. 15 Q If you want to answer in the 16 affirmative, you have to actually say yes. And if 17 you want to answer in the negative, you have to 18 actually say no. You understand that? 19 A Yes. 20 Q Since the court reporter is taking down 21 everything that is said in the room on the record, 22 she can only take down one person speaking at a 23 time, so it is important for you, as the witness, 24 and me, as the person asking the questions, to have 25 only one of us speak at a time, okay? 0021 1 A Sure. 2 Q So I will wait until you finish 3 answering a question before I ask the next question, 4 okay? 5 A Okay. 6 Q And in normal conversation you can 7 anticipate what someone is going to say so you can 8 kind of interrupt them to save time and jump ahead 9 and answer a question, but that will be unclear on 10 the record. So even though you may know what I am 11 asking and what I am saying, just wait until I 12 actually finish asking the question before you 13 answer it, okay? 14 A All right. 15 Q Okay. Now, normally a college course 16 would have, say, three credits. Maybe some college 17 courses, like if it is a lab or part time, would 18 have two credits. My question to you is how many 19 credits did that two-year course that you took at 20 the Newark College give you, if any? 21 MR. FETTEN: Objection to form. 22 A I have no recollection of that, how many 23 credits there were. 24 Q How many hours was each class, 25 typically, over that two-year period? 0022 1 MR. FETTEN: Objection to form. 2 A Don't recall. 3 Q And how many days a week, 4 approximately, in a typical week would you attend 5 the course? 6 A Again, I don't recall. 7 Q Were you graded at the end of the 8 course? 9 A Yes. 10 Q And what grade did you get? 11 A I don't recall. 12 Q In all the courses that you've taken, 13 have you ever failed? 14 A At Newark College of Engineering or -- 15 Q Any course that you have ever taken. 16 A No, not that I recall. 17 Q Did you ever get any D in any course 18 that you have ever taken? 19 MR. FETTEN: Objection. 20 A I don't recall. 21 Q Do you have any transcripts in your 22 records, whether it be here at the office or perhaps 23 at home, any transcripts of records showing grades? 24 A No. 25 Q So at the Newark College, it is listed 0023 1 on your CV, but you only attended one course there, 2 correct? 3 A It was a two-year course that covered several 4 different topics. 5 Q But it was -- 6 A It was a two-year program. 7 Q It was a course, just one course, 8 correct? 9 A I don't understand that question. 10 Q Well, it was only one course? 11 A No. There were several different subject 12 matters that were covered. It was a two-year 13 program of study. 14 Q Oh. So there were different classes? 15 A Yes. 16 Q Oh. How many different classes did you 17 take within that two-year course? 18 A I don't recall. 19 Q Was it more than one? 20 A Yes. 21 Q What would you refer to the person that 22 conducted the course as? Would they be called a 23 professor, the teacher, the moderator or what? 24 A I don't recall. 25 Q Do you recall the name of the person or 0024 1 persons that taught you this? 2 A No. 3 Q About how much did that cost, that 4 two-year course? 5 A I don't recall. 6 Q And you graduated -- did you attend a 7 graduation after that? 8 A No. 9 Q Was your name Stephen N. Emolo back at 10 the time that you took the course, or has your name 11 changed? 12 A No, it is the same name. 13 Q What is your birth date? 14 MR. FETTEN: Objection to form. 15 A November 2, 1952. 16 Q And what is your social security 17 number? 18 MR. FETTEN: Objection. Don't answer 19 the question. 20 MR. CLARK: Why? Is that privileged 21 or -- 22 MR. FETTEN: Sure it is. It is his 23 privacy. You are not entitled to his social 24 security number. 25 Q Did you finish that two-year course 0025 1 with any grade point average? 2 MR. FETTEN: Objection to form. 3 A The course was completed and I was issued the 4 certificate of completion. I don't know what the 5 grade point average is. 6 Q Do you have a copy of that certificate 7 of completion? 8 A Yes. 9 MR. CLARK: For the record, I would 10 like a copy of Mr. Emolo's certificate of completion 11 from the Newark College of Engineering two-year 12 course. 13 Q Now, the Northwestern University 14 Traffic Institution, was that one class or more than 15 one class or what? 16 A Which one are you referring to? 17 Q I am on page one of your CV in the 18 education section, the second one down. 19 A That was one class. 20 Q Okay. And how long did that go for? 21 A That was a two-week course. 22 Q And how many days a week or so would 23 you attend that two-week course during the two-week 24 period? 25 A Five days a week. 0026 1 Q And about how long was each class? 2 A Eight-hour days. 3 Q And were you graded in that course or 4 they just gave you a certificate of completion? 5 A You were graded. 6 Q What was your grade there? 7 A I don't recall. 8 Q Could it have been a D? 9 A I don't recall. 10 MR. FETTEN: Objection to form. 11 Q It is possible then that it could have 12 been a D? 13 MR. FETTEN: Objection to form. 14 A I don't recall. 15 Q Would you have any problem with signing 16 an authorization so that we could get your 17 transcript from that school? 18 A No. 19 MR. CLARK: Okay. So just for the 20 record, I am going to ask for an authorization to 21 obtain the transcript from that school, and I will 22 send it in a letter with the authorization attached 23 to be signed. 24 MR. FETTEN: Off the record. 25 (Whereupon, a brief discussion is held 0027 1 off the record.). 2 Q The University of Florida, was that -- 3 how long did you attend that? 4 A That was also a two-week course. 5 Q How many days a week? 6 A Five days a week. 7 Q How many hours a day? 8 A Eight hours. 9 Q Were you graded? 10 A Yes. 11 Q And what was your grade? 12 A Again, I don't recall. 13 Q Could it have been a D? 14 MR. FETTEN: Objection to form. 15 A I don't believe so, but I don't recall. 16 Q Could it have been an F? A failure? 17 MR. FETTEN: Objection to form. The 18 problem I have with some of these questions, Mr. 19 Clark, so that you know and appreciate, you are 20 assuming it was a letter grade as opposed to some 21 other grading system. That is what your question 22 presupposes, so I object to the form. 23 MR. CLARK: All right. But I am sure 24 if it is not a letter grading and it is a number 25 grade such as a GPA, he will tell me that. 0028 1 MR. FETTEN: He is answering the 2 questions that you ask, and I object to the form 3 because your question has a supposition in it. 4 MR. CLARK: I know. But if my 5 supposition is wrong, I am sure he will correct me 6 and say, we weren't graded by Ds, Fs. We were 7 getting ones, twos, threes, fours. 8 MR. FETTEN: Carry on. 9 Q Could it have been an F or a failure? 10 A No. 11 MR. FETTEN: Objection to form. 12 Q Do you have that certificate? 13 A Yes. 14 Q Okay. 15 MR. CLARK: For the record, I will call 16 for a copy of the certificate from that course at 17 the University of Florida. 18 Q Now, the Northwestern University 19 Traffic Institute in 2000, was that one course? 20 A Yes. 21 Q And how long was that for? 22 A Two weeks. 23 Q How many days a week? 24 A Five. 25 Q Hours a day? 0029 1 A Eight. 2 Q And were you graded? And, if so, what 3 was your grade? And if -- strike that. 4 Were you graded? And, if so, what was your 5 grade? 6 A I was graded, but I don't recall the grade. 7 Q Do you have the certificate from that? 8 A Yes, I do. 9 MR. CLARK: For the record, I would 10 call for production of the certificate from the 2000 11 course at Northwestern University, as well as 12 authorizations for transcripts from all those 13 courses. And I will attach it to my request letter 14 with the authorization form. 15 Q Now, when you finished high school in 16 '69, where did you work after that in your career? 17 A I was employed by a local municipality in 18 Passaic County, Wayne Township, in their engineering 19 design section. 20 Q That was from '69 until when? Or about 21 '69 to when? 22 A Until about '88 or '89. 23 Q And what was your title there? 24 A I was one of their design draftsmen. I worked 25 with their engineers in preparing the municipal 0030 1 improvement projects for the township. 2 Q Such as what? 3 A Such as new sewer extensions, water lines, 4 drainage projects. 5 Q During that approximate 20-year period 6 working for the Township of Wayne in that capacity, 7 did you work anywhere else during that time? 8 A Yes. I worked part time for a traffic 9 accident reconstruction group. 10 Q What was the name of that firm? 11 A Suhaka Desch Associates. 12 Q How do you spell? 13 A S-u-h-a-k-a, I believe. 14 Q And when did you start there? 15 A Early 1980s. 16 Q Until when? 17 A Until 1989. 18 Q When they split up? 19 A Yes. 20 Q And where did you work in that field 21 after the split? 22 A I worked for three companies at that point. I 23 worked for the original company, Suhaka Desch 24 Associates, I worked for Suhaka & Associates, and I 25 worked for John Desch Associates. 0031 1 Q When you left working for Wayne in or 2 about 1989, what was your next job after that? 3 MR. FETTEN: Objection to form. 4 A I became employed full time for John Desch 5 Associates. 6 Q Is that to present? 7 A Yes, it is. 8 Q So you are coming on 20 years full time 9 at John Desch Associates? 10 A Yes. 11 Q And in all that time -- okay. 12 Did Sukaka or Suhaka retire? 13 A No. He still operates his own business. 14 Q Where? 15 A I believe he is still out of Wayne, New 16 Jersey, his home office. 17 Q During the time that you worked in the 18 accident reconstruction field from the early '80s to 19 present, how many different titles have you had at 20 the places that you've worked in that field? 21 A Just one. 22 Q What is your title today? 23 A I am an accident reconstructionist. 24 Q And that was your title when you 25 started in the business in the early '80s? 0032 1 A Yes. 2 Q Trying to get an idea of the staffing. 3 Is it the practice here -- why does the report that 4 you have written in the case dated December 14, '07, 5 why are there two people on that report? 6 MR. FETTEN: Objection to form. 7 Q Bruce Kuipers and Emolo. Why are there 8 two people on that? Most reports there is usually 9 one. 10 MR. FETTEN: Objection to form. 11 A Our reports typically have two associates. It 12 is co-authored by the two of us. One of the reasons 13 for that is the type of field work that we perform 14 on every one of our assignments requires two 15 associates to be there. Two associates that usually 16 perform the field work, or at least one of them 17 would then work with another associates in 18 formulating the analysis and opinions. 19 Q Who did the actual typing of the 20 report? Would that be one of you two or a 21 secretary? 22 A It could have been one of us two and then 23 formatted by the secretary. 24 Q All right. Do you -- who did the 25 typing of this particular report? Which of the two? 0033 1 A I don't recall. 2 Q Why are you here at the deposition as 3 opposed to Mr. Kuipers? 4 A I believe you requested to take my deposition. 5 Q How does your compensation work here at 6 this company? Are you paid by the hour? By the 7 case? Are you a flat salary? What? 8 A Paid by the hour. 9 Q How much per hour do you get? 10 A How much is my time billed for? 11 Q No. How much are you -- I know how 12 much your time is billed for because we have the 13 bills here. But you in particular. 14 A I believe I am at 52 an hour at this point. 15 Q And do you also receive benefits in 16 terms of health, 401(k), that kind of thing? 17 A Yes. 18 Q What benefits? 19 A Health, dental, there is a retirement plan. 20 It is not a 401(k), but there is a retirement plan. 21 Q And if you take vacation, do you get 22 paid during the vacation or it is only your actual 23 billing? 24 A Vacation is earned by the amount of hours that 25 you work. There is a percentage of that that you 0034 1 accumulate hours on. And, yes, of course, you are 2 paid for them. 3 Q How much vacation do you get per year? 4 A It is not a set amount of time. It depends on 5 the hours that I put in during that year. 6 Q How much vacation did you take in '08, 7 roughly? 8 A Three weeks. 9 Q Do you work full time here now? 10 A Yes. 11 Q And have you worked full time here 12 since about 1989? 13 A Since 1990. 14 Q What types of cases do you work on? 15 A Personal injury cases involving pedestrians, 16 motorcycles, bicycles, automobiles, commercial 17 vehicles. 18 Q When I was pulling in I saw a blue 19 motorcycle in the driveway. Do you know why that's 20 there or what that's for? Is that related to a 21 case, or is that someone's from here? 22 A If it was a blue BMW, it's probably Mr. 23 Desch's motorcycle. 24 Q Do you work in any other cases other 25 than personal injury? 0035 1 MR. FETTEN: Objection to form. 2 A Well, in the beginning I worked on 3 slip-and-fall cases. But we have a -- one of our 4 engineers has also got his building sub-code 5 official's license. He handles them now. 6 Q When did you stop doing slip-and-falls? 7 A Probably about ten years ago. 8 Q So over the last ten years you've only 9 worked on personal injury auto accident, motor 10 vehicle accident cases? 11 A Yes. 12 Q Who are some of the clients of the 13 cases that you've worked on? 14 A We've done work for several trucking 15 companies; UPS, FedEx. Bus companies; Coach U.S.A., 16 Academy Bus. Insurance companies; New Jersey 17 Manufacturers, State Farm, Selective. 18 Q I got trucking companies, FedEx, UPS. 19 Insurance companies such as State Farm and 20 Selective. Who else would be the clients? 21 A Attorneys. 22 Q Defense attorneys for the most part? 23 MR. FETTEN: Objection to form. 24 A Defense and plaintiff. 25 Q Well, what is the breakdown? 0036 1 A I don't have an accurate recall, recollection 2 of that, but it is probably somewhere around 70/30 3 defense. 4 Q Give me the top five biggest clients 5 for the company. 6 A I wouldn't be able to tell you off the top of 7 my head. 8 Q Give me some of the big clients for the 9 company? 10 A I think I just listed a couple. FedEx, UPS, 11 Coach U.S.A., Academy Bus. 12 Q What trucking companies are some of the 13 big ones? 14 A We have done work for Schneider Trucking, 15 RoadLink, National Freight. 16 Q What do you guys do, you know, to keep 17 your clients happy over the years? You send out 18 Christmas cards or holiday cards? You have a 19 Christmas party? 20 MR. FETTEN: Objection to form. 21 Q That kind of thing. What do you guys 22 do? 23 A They don't send out anything to our clients. 24 Q Do you guys hold a holiday party or 25 Christmas party? 0037 1 A For the employees, yes. 2 Q Okay. And did you have one in '08? 3 A Yes. 4 Q And how many employees does the company 5 have today, approximately, if you don't know exact? 6 A We have six full-time reconstructionists and 7 20 plus part-time reconstructionists. 8 Q Where was the holiday party held in 9 '08? 10 A A restaurant up in the Vernon area, Momento's. 11 Q Was it buffet or sitdown or what? Or 12 just drinks and appetizers? 13 MR. FETTEN: Objection to form. Is 14 this even reasonably calculated to lead to the 15 discovery of admissible evidence in this litigation? 16 Even remotely? 17 MR. CLARK: I guess we will find out 18 when he tells me the answers to the questions. 19 A It was sitdown. 20 Q How many were at the party, 21 approximately? 22 A Forty. 23 Q So the company has six full-time 24 reconstructionists and 20 part-time, approximately; 25 is that correct? 0038 1 A That's correct. 2 Q How about support staff? 3 A Four. 4 Q Did all 20 of the part-time 5 reconstructionists come to the party? Or most of 6 them? 7 A Most of them but not all of them. 8 Q Then who else came? Aside from the 9 part-time reconstructionist, the full-time 10 reconstructionist and support staff, who else came 11 to the party? 12 A Spouse. 13 Q Anyone else? 14 A Not that I can recall, no. 15 Q Have you ever been at a holiday party 16 with this company where anyone from FedEx attended? 17 A No. 18 Q Have you ever been to Nashville? 19 A I've been to Nashville. 20 Q To FedEx in Nashville? 21 A No. 22 Q Was anyone from UPS ever at any of the 23 parties? 24 A No. 25 Q How about Coach? 0039 1 A No. 2 Q Academy Bus? 3 A No. 4 Q Anyone from any of the insurance 5 companies ever been there? 6 A No. 7 MR. FETTEN: Be, where? At this 8 holiday party? Is that the question? The holiday 9 party in 2008? Is that what you are talking about? 10 I just want to make sure I am clear so that we -- 11 because I just noticed that you said the party, 12 singular, and then you changed it to parties. And I 13 am just a little confused as to what the question 14 is. 15 MR. CLARK: Normally I don't answer 16 questions at depositions, -- 17 MR. FETTEN: I object to the form. 18 MR. CLARK: -- but I guess I will make 19 an exception. It was all the parties. I think the 20 record would reflect that. 21 Q So was anyone from any of the insurance 22 company clients at the parties that you can recall? 23 A At any one of our Christmas parties, no. Or 24 holiday parties, no. 25 Q Are there any attorneys on staff at 0040 1 this company either full time or part time? 2 A No. 3 Q Have you ever seen an attorney attend 4 one of the company's holiday parties? 5 A No. 6 Q Do you send out invitations to the 7 holiday parties or do you guys just send an e-mail 8 around the office? 9 A Generally just an e-mail. 10 Q Okay. Do you know if there is an 11 invite list? Well, strike that. 12 Who handles coordinating with the restaurant? 13 A Either myself or Mr. Desch. 14 Q Okay. Did you create a list of people 15 who will attend for the last one? 16 A For the last one it was -- the only ones 17 invited were the associates. 18 Q Was there a list, though, of names? 19 A No. 20 Q You just gave the restaurant a number, 21 you sent the e-mail around, and everyone showed up? 22 MR. FETTEN: Objection to form. 23 A I sent the e-mail around, I get a head count, 24 I gave the restaurant a number. 25 Q Okay. Do you guys ever send mailers 0041 1 around, advertising mailers or marketing pieces? 2 MR. FETTEN: Objection to form. 3 Q Whether it be a glossy card or maybe a 4 letter with some attachments, that kind of thing? 5 MR. FETTEN: Objection to form. Go 6 ahead. 7 A We used to a long time ago, but not anymore. 8 Q Okay. If an attorney walked in off the 9 street, knocked on the door and said, hey. I would 10 like to maybe use you guys. Do you have a brochure 11 or anything like that? What, if anything, would you 12 give them? 13 A We could put together a brochure but I would 14 refer them to our website. 15 Q Okay. What licenses or certifications 16 do you hold in the field of accident reconstruction? 17 A I have a certification from the Accreditation 18 Commission for Traffic Accident Reconstructionists. 19 Q Where is that outfit located? 20 A Some of its officers are in Florida, but 21 generally it is put together by a board of our 22 peers, people that are certified reconstructionists, 23 and they are not in one particular place. They are 24 all over the country. 25 Q How do you -- what do you have to do to 0042 1 obtain that certification? 2 A You have to submit an application with your 3 background and schooling, be approved by the board, 4 and then you are positioned in at one of the exam 5 sites to sit for the exam. 6 Q Where was your exam taken? 7 A I believe it was Atlantic City. 8 Q Do you have to pay a fee? 9 A Yes. There is -- 10 MR. FETTEN: Objection to form. For 11 the exam? 12 MR. CLARK: No. To get the 13 certification. 14 MR. FETTEN: Objection. 15 A No, there is no fee for the certification. If 16 you successfully complete the exam, the 17 certification is sent to you. 18 Q Is there an application fee? 19 A Yes, there is. 20 Q How much is that? 21 A I don't recall. 22 Q Do you have to pay a fee every year to 23 renew? 24 A Not every year. In order to keep your 25 certification you have to have 80 continuing 0043 1 education units. At the end of the fifth year there 2 is a renewal fee. 3 Q The CV that we marked as exhibit 4 Emolo-3, is this CV accurate? 5 A It is -- 6 Q Accurate and up to date? 7 A Yes. It is a current copy. 8 Q All of the certifications and 9 memberships on here are current and up to date? 10 A I believe so, yes. 11 MR. FETTEN: Is that marked, Jerry? 12 MR. CLARK: Yes. Emolo-3. 13 MR. FETTEN: Why don't you show him 14 what you are looking at? Because he is looking at 15 what is in the report. That's a year and a half 16 old. So why don't you show him what you are looking 17 at so that he is sure of that when he gives the 18 answer. 19 MR. CLARK: I could do that, but he 20 gave that to me this morning. 21 MR. FETTEN: I understand that but you 22 are in the showing him what's been marked. 23 Q You've had the opportunity to review in 24 detail again the CV that you handed to me this 25 morning. Based on having reviewed it, do you need 0044 1 to change any answers? 2 A No, I believe it is up to date and accurate. 3 Q Okay. How many times have you sat 4 through the exam? 5 A Twice. 6 Q What is the -- the listing on the CV 7 says full accredited traffic accident 8 reconstructionist. What is the entity that so 9 accredits? What's the name of it? 10 A It is listed right below. The Accreditation 11 Commission for Traffic Accident Reconstructionists. 12 Q Okay. And what is the grading system 13 on that exam, so there is no confusion? Is it 14 letters or numbers or what? 15 A Again, I don't recall. 16 MR. CAREY: I object. It could also be 17 pass/fail. 18 Q Yeah. Do you know is it pass/fail 19 or -- 20 A I don't know. 21 MR. FETTEN: I guess that was the "or 22 what" part of the question. 23 MR. CLARK: Yeah. 24 MR. FETTEN: Okay. 25 Q So why have you taken it twice? 0045 1 A It is a two-part exam. Took exam the first 2 time, failed one part, passed the other. Had to 3 retake the exam. 4 Q Describe the two parts. 5 A One is theory, one is practical. 6 Q And which part did you fail? 7 A I believe it was the theory section. 8 Q What year did you first take it? 9 A I think it was either '92 or '93. 10 Q And then when did you take it the 11 second time? 12 A 1994. 13 Q Did you take both parts in '94 again, 14 theory and practical? 15 A No. You only were required to take the one 16 part that you failed. 17 Q Okay. And you believe that was the 18 theory part? 19 A Yes, I do. 20 Q Did you fail by a lot the first time or 21 a little bit or what? 22 A I don't know. 23 Q What did you do to prepare for that 24 exam? 25 A There is practice exams that they send to you, 0046 1 and, of course, there's the reference materials that 2 a reconstructionist would use in order to formulate 3 opinions. Between the practice exams and the work 4 experience was all that basically anyone does to 5 prepare for the exam. 6 Q And the ACTAR number 556, what is that 7 number? 8 A That's the accreditation commission that 9 issues you a number for your certification. My 10 number happens to be 556. 11 Q Do you have a copy of that 12 certification? 13 A Yes, I do. 14 MR. CLARK: All right. For the record, 15 I call for production of the copy of that 16 certification. 17 Q Are you familiar with, in New Jersey, 18 with police fatal accident investigation teams? 19 A Yes. When I worked for the municipality I 20 worked directly with their fatal team in preparing 21 their at-scene diagrams. 22 Q You are familiar with police in the 23 State of New Jersey being certified accident 24 reconstructionists, correct? 25 A Yes. There are police officers that are 0047 1 certified. 2 Q And what outfits so certify police 3 officers in the state? 4 MR. FETTEN: Objection to form. 5 A There's only one that has a certification as a 6 traffic accident reconstructionist. That would be 7 the accreditation commission as listed on the CV. 8 Q You call them ACTAR for short? 9 A ACTAR, yes. 10 Q Have you ever taken any math courses in 11 your post high school education? 12 A There is math involved in any one of the 13 reconstruction courses that you take. 14 Q But have you ever taken any course that 15 was dedicated to mathematics post high school? 16 A Just strictly mathematics? 17 Q Yes. 18 A No. 19 Q You have experience with the auto black 20 boxes? 21 A Referred to as a black box. It is actually an 22 airbag control module? 23 Q Yes. 24 A Yes. 25 Q What is that? I see it on your 0048 1 certification as for the Vitronics Corporation? 2 A Yes. 3 Q What is the black box technology? How 4 does it work? 5 A It is a computer that basically is the brains 6 that operates the airbag system in the vehicle. 7 Inside that airbag control module is an event data 8 recorder. When the vehicle experiences an event 9 that's either a near-deployment or a deployment 10 event of the airbags, the recorder will save data in 11 that for that incident. Vitronics is the software 12 that would allow you to upload it, capture the image 13 that is inside the airbag control module and print 14 it out. 15 Q There does not have to be an airbag 16 deployment for the module to record data, correct? 17 A That is correct. 18 Q Basically what it is supposed to do is 19 if there is an accident, it is supposed to record 20 data right near the time of the accident, correct? 21 A Can you repeat that, please? I didn't 22 understand that question. 23 (Whereupon, the requested portion is 24 read back by the reporter.) 25 MR. FETTEN: Objection to form. 0049 1 A Essentially what it is supposed to do is tell 2 the airbags to deploy. But as a result of the 3 technology, it does record some of the, in some 4 instances, the pre-crash data in that particular 5 module. 6 Q Such as the speed of the vehicle? 7 A In some make and model vehicles, yes. 8 Q Such as whether the brakes were 9 applied? 10 A In some make and models, yes. 11 Q And how do you know after crash if the 12 system recorded crash data? Would you have to hook 13 a laptop computer up to it and download it to 14 determine that? 15 A To determine if it did capture that particular 16 incident, yes. 17 Q What other data is the system capable 18 of recording? 19 A It is capable of telling whether or not the 20 occupants were utilizing safety restraints, it can 21 tell you the Delta-v, the change in velocity of the 22 vehicle during the crash. As I said before, in some 23 models it will record the speed the vehicle was 24 traveling at and whether or not the brake switch was 25 activated. 0050 1 Q Do you have a laptop computer in this 2 office that can be plugged into the system and 3 download the data? 4 A Yes. 5 Q Is there one in this room? 6 A Yes. 7 Q Is that the laptop sitting to the left 8 of the court reporter? 9 A Yes. 10 Q So it can record vehicle speed, 11 correct? 12 A In some make and models, yes. 13 Q Engine speed? 14 A In some make and models, yes. 15 Q Throttle position? 16 A In some make and models, yes. 17 Q Seat belt status? 18 A In some make and models, yes. 19 Q Delta-v or the crash pulse? 20 A Yes, in some make and models. 21 Q And more, too, in some make and models? 22 MR. FETTEN: I am sorry. I didn't get 23 that. 24 (Whereupon, the requested portion is 25 read back by the reporter.) 0051 1 A Yes. 2 Q Now, when you did your analysis in this 3 case, you wanted to have as much information as 4 possible, correct? 5 A Yes. You always want to have as much as 6 possible. 7 Q Now, 2005 -- strike that. 8 What was the year of the Suburban? '05 or 9 '06? 10 A I think it was an '06, but let me check. 11 2006. 12 Q At the time you began your 13 investigation, did Seacoast still have the Chevy 14 Suburban or had they sold it by that time? 15 A I was not provided information with regards to 16 whether or not they still had that vehicle or not. 17 Q Did you ask whether or not it was 18 available so that you could hook up the laptop that 19 is available in this room to the electronic crash 20 data retrieval form? 21 MR. FETTEN: Objection to form. 22 A I don't recall if we asked, but it is likely 23 we did ask. We usually ask if the vehicle is 24 allowed to use information testing. The surrogate 25 vehicle was brought there. If they still had that 0052 1 vehicle, if they still had it, the chances that 2 there would have been something in there would have 3 been slim at this time. In most make and models 4 when the ignition switch is turned on more than 250 5 times it will rewrite over or erase what data is 6 captured on that airbag control module. So if there 7 was an event that was captured, which is unlikely 8 because it was a ped hit, it could have been 9 overwritten since it was a year later. It would 10 have been no data in that airbag control module or 11 event data recorder. 12 Q But you would not know if it recorded 13 data without hooking the laptop up to it and 14 downloading it, correct? 15 MR. FETTEN: Objection to form. 16 A You would not know for sure. But the 17 likelihood, because of this particular accident 18 being a pedestrian accident, there was not enough 19 change in velocity for the module to tell the brains 20 to tell the airbags that we may have a deployment. 21 We may need to deploy because there is gonna be a 22 crash. There is very little loss of speed from an 23 impact to a pedestrian at the corner of the vehicle. 24 Usually not significant enough to send a impulse 25 into the bag to record the event. 0053 1 Q But the recording is not contingent 2 upon the bag deploying, correct? I think you said 3 that earlier at the deposition. 4 A It is contingent upon a near deployment or a 5 deployment. The deceleration rate has to be 6 significant. Usually the default rate is somewhere 7 around 11 to 12 miles per hour change in velocity. 8 Velocity tells the airbag that the vehicle may be 9 going to have a crash. We maybe need to deploy. If 10 it doesn't sense any further deceleration, it still 11 recorded the near deployment. If it does have a 12 crash, of course there is a deployment and the event 13 is captured. 14 Q Would you like to have hooked up the 15 laptop to the Chevy Suburban after the crash? 16 A Immediately after if it was available we 17 likely would have done it just to confirm that there 18 was nothing in there, sure. 19 Q Okay. And the '96 Chevy Suburban is 20 equipped with the Vitronics crash data retrieval 21 system, is it not? 22 A I believe you just asked me if a '96 was 23 equipped, not a 2006. 24 Q Yeah, my fault. That's correct. Yep. 25 My fault. A 2006. 0054 1 A I believe it is. I would have to check the 2 list of vehicles that are supported, but a lot of GM 3 vehicles are, so it likely was supported with the 4 Vitronics software. 5 Q Have you ever been retained by a 6 municipality to investigate a auto accident, motor 7 vehicle accident crash? 8 A We've been retained by municipalities, yes. 9 Q You say "we" in terms of, I guess, the 10 company of John Desch Associates, but I wasn't 11 referring to the company. I am talking about you in 12 particular. Have you ever been retained to serve as 13 an accident reconstructionist by a municipality in a 14 motor vehicle crash case? 15 A I wouldn't recall every case that I worked on. 16 Again, when I say "we," the firm is always retained 17 by the client, not a particular associate. 18 Associates get assigned to the cases as they come in 19 based upon the workload. So to answer your 20 question, I would not recall exactly what 21 municipality I may have worked for. 22 Q Have you ever been assigned to serve as 23 an accident reconstructionist for a municipality in 24 an investigation of a crash that a municipality was 25 conducting? 0055 1 MR. FETTEN: Object to the form. 2 A It is probable, yeah. 3 Q Do you know when? 4 A No. I'd have to check our data base to see 5 which accidents were from municipalities to see who 6 the associates were that worked on it. I couldn't 7 tell you off the top of my head, no. 8 Q I don't mean a personal injury case 9 where a municipality is being sued. I mean being 10 retained directly by a municipality to conduct a 11 crash investigation for something other than a 12 personal injury case. 13 MR. FETTEN: Objection to form. 14 A For example, I know of -- and I can't tell you 15 the municipality. I know we were contacted by a 16 municipality. One of their police officers had an 17 accident. They didn't believe that the accident 18 occurred in the manner he said, so we were hired to 19 investigate it. 20 Q When you say "we," you mean the 21 company. I am talking about you in particular. 22 MR. FETTEN: Objection to form. 23 A I cannot recall all the cases that I worked 24 on. 25 Q Okay. So the record is clear, you 0056 1 cannot recall ever being assigned a case to conduct 2 an investigation on behalf of a municipality or 3 state entity in anything other than a personal 4 injury case; is that correct? 5 A Not that I can recall. 6 Q Okay. Under your professional 7 affiliations you list the Society of Accident 8 Reconstructionists. What is that and what is your 9 affiliation with that entity? 10 A The Society of Accident Reconstructionists is 11 an organization that its officers are accident 12 reconstructionists and they put on seminars on a 13 yearly basis, put out newsletters and articles. And 14 my affiliation with them is I have been a member of 15 that society for several years. I have been a 16 member as an accident reconstruction status. 17 Q Are you a member now? 18 A I believe -- if the fees have been paid, yes. 19 Q And what do you have to do to become a 20 member? 21 A Again, you submit an application with your 22 schooling and your experience. It is reviewed by 23 the board and they make a determination as to 24 whether or not what status you can be affiliated 25 with this organization in. 0057 1 Q Do you maintain a file or files that 2 deal with your applications to the various programs 3 or societies, et cetera, that you have been involved 4 in? Do you maintain a file on that? 5 MR. FETTEN: Objection to form. 6 Q Or files? 7 A I believe we do, yes. 8 Q Okay. Would that be individual to you? 9 Or how does that work? 10 A It would be individual to each one of the 11 associates that here at the office will maintain a 12 file on that. 13 Q Do you think during our next break you 14 can go grab your file or ask them to pull it out? 15 MR. FETTEN: We are not gonna have 16 anybody pulling out anything today. If you want to 17 request certain documents, you can go ahead and do 18 that and I will take it under advisement and respond 19 to you accordingly. But we are not gonna have him 20 moving around the office looking for things because 21 you are requesting it today. 22 Q What would that file be called? Just a 23 personnel file or what? 24 A Yeah, I believe it would be in the personnel 25 file. 0058 1 Q Okay. All right. 2 MR. CLARK: For the record, I call for 3 production of Mr. Emolo's personnel file maintained 4 here at John Desch Associates. 5 Q The next line under professional 6 affiliations, what is that? 7 A Under the Society of Accident 8 Reconstructionists? 9 Q Yeah. The next line right under. 10 A National Association of Traffic Accident 11 Reconstructionists. Another society for accident 12 reconstructionists. 13 Q And what do you have to do to be a 14 member of that? Are you a member? And what do you 15 have to do to be one? 16 A Again, I was a member. I believe I am as long 17 as the fees have been paid. There is yearly fees to 18 keep you active. Same thing as all four of them 19 that are listed there. There is an application that 20 is filled out with your schooling and your 21 experience, the board of each one of those 22 organizations reviews it and makes a determination. 23 Q And those applications would be within 24 your personnel file here at the company? 25 A Yes. 0059 1 Q In the miscellaneous section it says: 2 Accident evidence collection instructor for various 3 public and private organizations. What is that 4 about? 5 A Our firm was requested by the Bergen County 6 Police Academy as one of them that is listed here to 7 send one of our associates to instruct their new 8 traffic officers in the field of at-scene evidence 9 collection. I participated in that seminar for the 10 Bergen County Police Department as well as several 11 other trucking companies that are clients of ours. 12 Q Did you attend the seminar? 13 A I was one of the presenters. 14 Q When did you do that? 15 A I don't recall the year. 16 Q Was that just one time? 17 A For Bergen County Police Academy it was one 18 time, yes. 19 Q How many times have you served as an 20 expert commentator on Court TV programs? 21 A One time. 22 Q How did that come about? 23 A Court TV contacted our office requesting one 24 of us to participate as an expert commentator in the 25 field of accident reconstruction. Mr. Desch 0060 1 appeared several times, John Scott from my office, I 2 believe once, also, and myself. 3 Q Do you have a copy of the tape from 4 that program? 5 A Yes, I do. 6 MR. CLARK: For the record, I'd call 7 for production of a copy of that tape. 8 Q On page three of the third page it 9 says: Rutgers University certificate in urban work 10 zone safety. What is that? 11 A That was a course they gave in setting up a 12 work zone, traffic controls in a work zone. 13 Q How long was that course? 14 A I believe it was three days. 15 Q How many hours a day? 16 A Again, I believe it was eight. 17 Q Do you have a certificate in connection 18 with that? 19 A Yes. 20 Q How come you don't list that in your 21 education section? 22 A It is just the way the CV was laid out. 23 Q Who laid it out? 24 A We have a format that we follow. Associates 25 will fill out a form and we -- a CV, and it will be 0061 1 put in the format that the company basically 2 utilizes. Almost all of them are identical. 3 Q Was there a pass/fail or anything like 4 that in connection with this school? 5 A It's been so long, I don't recall if there was 6 on that particular one. 7 Q Do you have a copy of the certificate? 8 MR. FETTEN: Objection to form. 9 A Yes, I do. 10 Q And where would that certificate be? 11 A Likely be in the personnel file with the rest 12 of them. 13 MR. CLARK: So for the record, I will 14 call for production of a copy of that, as well. 15 Q What is the law enforcement photography 16 Monmouth County Traffic Officers Association? What 17 is that? 18 A It was a course on photography at crime 19 scenes? 20 Q Who paid for all these courses and 21 seminars that you've attended? 22 A Company. 23 Q Of all the work that you've done for 24 this company, what percent has been in the area of 25 personal injury cases? 0062 1 A Probably 90 percent. 2 Q What would the other percentage be, the 3 other ten? Approximately what types of cases? 4 A Slip-and-falls. 5 Q Have you ever been called upon to 6 investigate an accident on scene, that is, as the 7 accident is still active? 8 A Yes. 9 Q How many times? 10 A I don't recall. 11 Q What circumstances would that take 12 place? 13 A Some of our large trucking companies and, of 14 course, bus companies like Coach, if there is a 15 catastrophic event that happens and they need us out 16 there, they will call us as soon as their safety 17 personnel get the call of the accident. We have an 18 emergency response vehicle that's equipped with all 19 of our at-scene evidence collection equipment, and 20 we are ready to take off and roll to the scene 21 within a matter of minutes. 22 Q That would be in connection with 23 defending a potential personal injury case in 24 connection with such an accident? 25 MR. FETTEN: Objection to form. 0063 1 A It would be in connection with any client that 2 called us, whether it was for a defendant or a 3 plaintiff. If we were called at the time of the 4 accident, we would respond. 5 Q Have you ever been called at the time 6 of an accident to respond to the accident scene on 7 behalf of a plaintiff, or has it always been on 8 behalf of the big companies like Coach and whatnot? 9 A I believe it's been always on behalf of the 10 larger companies that want a team to respond 11 immediately while the accident is still fresh and 12 everything is still at the scene. 13 Q That's basically to protect their 14 interests right away, correct? 15 MR. FETTEN: Objection to form. 16 MR. CLARK: It is so that we can 17 document any of the physical evidence resulting from 18 the accident and not have to rely upon someone 19 else's documentation of the evidence. 20 Q How many reports have you written, say 21 in the last ten years, on personal injury cases? 22 A I'd have to check our files. I couldn't give 23 you a number. 24 Q Well, you can. You have been deposed 25 30 times, approximately? 0064 1 A Approximately. 2 Q Have you ever been retained on a case 3 by any of these big companies and you write a report 4 stating that the company or their employees are 5 actually at fault for an accident, or when you are 6 retained by the companies you always conclude that 7 the company employee was not at fault? 8 MR. FETTEN: Objection to form. 9 A A lot of the assignments that we have is to 10 gather evidence. And not every case do we write 11 reports. If we review the evidence collected at the 12 scene and it does not support that there is 13 negligence on the part of the other party and that 14 their client didn't do anything wrong, they don't 15 request a report to be written. 16 Q Have you ever written a report on 17 behalf of one of these companies in these cases on 18 behalf of a defendant where you've concluded that 19 the defendant or their employees were actually at 20 fault? 21 MR. FETTEN: Objection to form. 22 A It would never get to report form in a case 23 like that. 24 MR. CLARK: Okay. Can you hand him 25 that file there? 0065 1 MR. FETTEN: No. 2 Q There was a document that Mr. Fetten 3 had referred to. I think it was a letter to Wendy 4 Wieback written in August, I believe, of 2007 or 5 2008. What was the purpose in writing that 6 document? 7 MR. FETTEN: Objection. Don't answer 8 the question. Collaborative process. I think that 9 is the phrase you used, right, Mr. Clark? 10 Collaborative process and privilege. Don't answer 11 the question. 12 Q What was the -- what is your practice 13 or procedure in your business with respect to 14 writing preliminary reports, if any? 15 A When any assignment comes into the office we 16 do an insurance review of the file and we would 17 then, in most cases, write a proposal letter, which 18 is essentially a letter telling the client what is 19 needed for us to do before we an formulate opinions, 20 what other discovery we are gonna need to see and 21 review, and then we, at that point, come up with an 22 estimated cost for the project and do not proceed 23 unless we are authorized at that point to go 24 forward. 25 Q What is the proposal letter? What 0066 1 would it have in it? 2 A It would basically outline the circumstances 3 of that particular accident. It would then go on to 4 say here are some of the things, the scope of 5 services that we have to accomplish in order to 6 evaluate the case, such as site visit, vehicle 7 inspections, some type of other dynamic testing, 8 line of sight testing, mapping the intersection to 9 determine the roadway characteristics. And then it 10 would have a cost estimate and an authorization 11 page. 12 Q Who is the office manager here? 13 A That would be me. 14 Q Okay. You have meetings with Mr. Desch 15 from time to time? 16 A Yes. 17 Q All right. If you were in this room 18 with Mr. Desch and Mr. Desch wanted to pull out your 19 personnel file for a meeting, how long would it take 20 for the personnel file from the time he asked to the 21 time it be put on the table? 22 A Not long. Within a minute. 23 MR. CLARK: Again, I would just repeat 24 my request for that personnel file. 25 MR. FETTEN: Yeah, I know. You 0067 1 requested that. I wrote it down and you're gonna 2 shoot me a letter later with all the requests 3 written out, right? And then when I get that, then 4 I will respond to your request. 5 MR. CLARK: I know, but I am just 6 trying to streamline things because I may want to -- 7 if I go through it we can bang it out now and then 8 there is like no chance I would need his deposition 9 again. 10 MR. FETTEN: I appreciate your 11 gratuitous offer, but that is not the way we are 12 gonna do it. 13 MR. CLARK: Oh. 14 MR. FETTEN: So keep asking your 15 questions. 16 MR. CLARK: If I get into two to three 17 weeks from now and review it, I may need to take his 18 deposition. I am just trying to avoid that. That 19 is all. 20 MR. FETTEN: We will deal with that if 21 and when it comes up. Good effort. 22 Q So you have been deposed about 30 23 times, right? 24 A Approximately. 25 Q All right. And how many times have you 0068 1 actually testified live in court? 2 A Approximately ten. 3 Q And in what states were the ten times? 4 A New York and New Jersey. 5 Q What would be the breakdown, 6 approximately? Mostly Jersey or -- 7 A I would say mostly Jersey, yes. 8 Q State and Federal Court or just State 9 Court? 10 A Both. 11 Q Have you ever had the attorney offer 12 you as an expert and the judge limit your area of 13 testimony or say that you can't testify at all? 14 A No. 15 MR. FETTEN: Objection to form. 16 A No. 17 Q If you were here meeting with Mr. Desch 18 and Mr. Desch said, Mr. Emolo, I'd like to know what 19 the ten cases or so that you testified in court 20 were, how long would it take you to come up with a 21 pretty good list? 22 MR. FETTEN: Objection to form. 23 A Probably less than five minutes. 24 Q And how would you do it? 25 A It is kept on our electronic data base. 0069 1 Secretary could research it and put together a list 2 and print it out. 3 Q All right. And how about the same 4 thing if he asked you for copies of those deposition 5 transcripts in your meeting, how long would it take 6 you to get a good amount of those? Ten, maybe, or 7 so. 8 MR. FETTEN: Objection to the form. I 9 don't understand the question. What is the 10 question? The transcripts or a list? 11 MR. CLARK: Do you need the question 12 read back? 13 MR. FETTEN: Hold on. I am asking you, 14 Mr. Clark. Is the question related to transcripts? 15 How long would it take you to find the transcript? 16 Or how long would it take you to come up with a 17 list? 18 MR. CLARK: Well, why don't I withdraw 19 the question without prejudice. 20 MR. FETTEN: Okay. 21 Q If you were at a meeting here with Mr. 22 Desch and he wanted to get some deposition 23 transcripts of cases that you testified in, say 24 maybe one or five or so, maybe more, if you had them 25 available, if he could get them rather quickly, how 0070 1 long would it take you to pull those transcripts? 2 A Again, less than five minutes. 3 Q Okay. How did you come about to get 4 into the accident reconstruction field? 5 MR. FETTEN: Objection to form. 6 Q Did you ever consider going to college, 7 maybe a two-year college, or enrolling in a 8 university or anything? 9 MR. FETTEN: Objection to form. That 10 is a compound question. There is like three 11 questions in there. 12 Q How did it come about you graduated 13 high school and then kind of melded into the 14 accident reconstruction field? 15 MR. FETTEN: Objection to form. 16 A I started working in the local municipality in 17 their engineering design section after I attended 18 Newark College of Engineering. And that municipal 19 engineering technology course, which course of 20 studies were -- part of it was land surveying where 21 we learned to use the equipment land surveyors use 22 to do their laying out of roadways, bridges and 23 design projects. At that point I was approached by 24 the traffic safety lieutenant in charge of the fatal 25 and serious accidents in the town to work with their 0071 1 department in responding to accident scenes, 2 documenting the evidence, preparing a scaled diagram 3 of the collision scene for their use and analysis of 4 that accident. 5 Q Was a scaled diagram of the accident in 6 this case prepared by the investigating officers at 7 the scene? 8 A I'd have to look at the police report. They 9 prepared a not-to-scale diagram. 10 Q What is the importance of having a 11 scaled diagram in connection with investigating an 12 auto accident scene? Strike that. 13 Did you prepare a scaled diagram of the 14 accident scene in this case? 15 A Yes, our office did. It is attached to our 16 report. 17 Q What is the importance of preparing a 18 scaled diagram of the accident scene? 19 A In any case you need to have measurements of 20 the roadway. If you are going to determine sight 21 distance, avoidability of an accident, you need to 22 know how far a pedestrian walks from one point, 23 point A, to impact. You need to then determine the 24 sight lines. So there is a lot of reasons why a 25 diagram would be important to an analysis. It all 0072 1 depends on the particular case, what issues would be 2 important. But in almost every case that our office 3 investigates, we prepare a scaled collision diagram. 4 (Whereupon, exhibit Emolo-5G is 5 received and marked for identification.) 6 Q Tell us what that document is. 7 A This is our form that we will fill out when a 8 call comes in from a client to just write down some 9 brief information about the particular case. Then 10 this is put away until the assignment comes in. 11 Q Okay. And that information on the form 12 that is filled in came from the client? 13 A This, the information filled out on here was 14 filled out by me. The person I spoke to, her name 15 is on here, it was Wendy Wieback. 16 Q Who told you that the pedestrian 17 stepped into the roadway from in front of a parked 18 van? She was the one who told you that? 19 A Yes. 20 Q How wide is the street in the area 21 where the accident happened? 22 A I believe it is 30 feet. I will check. The 23 roadway width between curbs measured 30 feet. 24 Q All right. I always wonder -- every 25 once in a while I will rent an RV, usually to go to 0073 1 a Nascar race in Dover. And the car that I drive, 2 it is kind of small. And then I rent like the big 3 camper and I am like, how am I ever gonna fit this 4 camper down this street? Can you comment on the 5 widths of streets and the widths of travel lanes in 6 connection with the widths of large-size vehicles 7 like campers or eighteen-wheelers? Also with the 8 thought about standard measures, do you know what 9 standard measure is? 10 MR. FETTEN: Objection. Hold on a 11 second. Objection to the form. Don't answer the 12 question. Is the question do you know what standard 13 measure is? Is that the question? Because all the 14 other stuff before is your soliloquy without any 15 question whatsoever in there. And a question, even 16 if it was determined to be present, I don't even 17 know what it is because it is not clear, and I 18 object to the form. What's the question? 19 MR. CAREY: Note my objection to the 20 form. 21 Q Do you know what standard measure is -- 22 A No. 23 Q -- as it relates to train tracks? 24 A No. 25 Q Standard measure is the standard 0074 1 measure of the width of train tracks. It is 2 standard with Europe and the United States so the 3 train cars can all be built the same size so that 4 they will fit on tracks. 5 A Okay. 6 Q Does that refresh your recollection as 7 to what standard measure is? 8 A Sure. 9 Q I think Russia was like the only 10 country that had a different width on train tracks. 11 MR. FETTEN: Objection to form. I am 12 not sure that that's correct, Mr. Clark, but be that 13 as it may, what's the question? Objection to the 14 form. 15 Q Are you familiar with the issue of 16 standard measure and standard measure being 17 different in Russia or any of the former Soviet 18 Republics? 19 A No. 20 MR. FETTEN: Objection to the form. 21 Q Can you comment on -- let me ask you 22 this: What is the field of expertise -- well, 23 strike that. 24 When a new road is built or planned, does the 25 builder or the entity that's involved with the 0075 1 planning of that road need approval from any 2 government entity? 3 MR. FETTEN: Objection to form. 4 A It would depend on who has jurisdiction over 5 that roadway. If it was a state road, yes. State 6 would have an engineering outfit prepare it to their 7 specifications. Same thing with county and local 8 municipality. 9 Q That is what I am talking about. Why 10 do they have that? Why, for example, if it is going 11 to be a state road does a state entity have to get 12 involved in approved engineering or get involved in 13 the engineering of the road? Why is that? 14 MR. FETTEN: Objection to form. 15 A They have certain standards that they require 16 the roads to be built to based upon the speed at 17 which vehicles will be traveling on the roadway. 18 The opposing traffic traveling at travel speeds may 19 need to have a divider separating them. Guide rails 20 may have to be in place because of steep slopes and 21 so forth and so on. So there is standards for each 22 type of roadway that has to be followed to make the 23 roadways safe. 24 Q Generally speaking, do those standards 25 also take into account the widths of vehicles to be 0076 1 traveled on the roads? 2 A Sure. 3 Q Can you comment on those standards as 4 they may, generally speaking, apply in the State of 5 New Jersey as it pertains to large vehicles, such as 6 tractor trailers, campers that may be used by people 7 going to different events to fit on the roadways? 8 MR. FETTEN: Objection. Objection to 9 the form. 10 MR. CAREY: Objection to the form also. 11 A No, I could not. I would have to look at the 12 standards. 13 Q Okay. The Garden State Parkway, the 14 travel lanes on the Garden State Parkway, are there 15 a standard measure of the width of each travel lane 16 so as to fit vehicles that may travel on those 17 lanes? 18 MR. FETTEN: Objection to form. Under 19 what conditions? What circumstance? What area of 20 the Parkway? What zone are they? I mean, that 21 is -- objection to the form. Go ahead. 22 A There are some requirements. I couldn't tell 23 you what the standards are for that particular 24 roadway. 25 Q Okay. What is the street -- well, the 0077 1 street here that this office is on is Newark Pompton 2 Turnpike, correct? 3 A Um'hum. 4 Q That's a yes? 5 A Yes. 6 Q Okay. And is that a county road or a 7 state road or what? 8 A I believe Newark Pompton Turnpike is a county 9 road. 10 Q Okay. And what is the minimum width 11 that -- or strike that. 12 In front of the office how many lanes is 13 Newark Pompton Turnpike? 14 A There is two travel lanes, one in each 15 direction, there is shoulders on both sides, I 16 believe, and I believe one side is even a bike lane. 17 Q Okay. And in the center of the roadway 18 is there a line separating, whether it be the dotted 19 line or the double solid line or what? 20 A There is a double yellow solid line out there, 21 yes, I believe so. 22 Q Okay. And what is the minimum width 23 required of a roadway from curb to curb in the State 24 of New Jersey so as to fit vehicles traveling in 25 both directions? 0078 1 MR. FETTEN: Objection to form. 2 A That's too general a question. You are just 3 saying in the State of New Jersey. You have 4 interstates, you have state highways, you have 5 county roads, you have municipal roads. They will 6 all be different. 7 Q Okay. What did you say Newark Pompton 8 Turnpike was? 9 A I believe it is a county road. 10 Q What is the minimum width from curb to 11 curb for a county road in the State of New Jersey so 12 as to fit vehicles traveling in either direction? 13 A I don't know what their requirements are. 14 Q Okay. What is the maximum width of a 15 travel lane in the State of New Jersey under the 16 applicable regulations for any -- 17 MR. FETTEN: Objection to form. 18 A I couldn't tell you what the minimum or 19 maximum is. I could tell you typically most of the 20 travel lanes that you travel on on the highway is 21 approximately 12 feet wide. 22 MR. CLARK: Read back the answer, 23 please. 24 (Whereupon, the requested portion is 25 read back by the reporter.) 0079 1 Q What is the width of a typical car? 2 MR. FETTEN: Objection to form. Define 3 typical and define car. 4 Q Pretty soon he is going to say, define 5 is. 6 A A passenger automobile, a sedan or a coupe, 7 two-door, four-door would be typically somewhere 8 between five to five and a half feet wide. 9 Q What is the maximum permissible width 10 of the vehicle, taking into account -- strike that. 11 Although you don't know what it is, is there a 12 maximum allowable width of a travel lane on the 13 roads in the State of New Jersey? 14 MR. FETTEN: Objection to form. 15 A I wouldn't know without researching their 16 specifications for each type of roadway. 17 Q Is there a maximum width of vehicles 18 allowed to be driven in the State of New Jersey on 19 public roads, or there is no limit to the width in 20 the vehicle? 21 MR. FETTEN: Objection to form. 22 A Vehicles that are carrying a wide load will 23 have to have escorts both forward of that vehicle 24 and behind the vehicle. What the width would 25 require -- or what width requires that type of 0080 1 escorts to have vehicles moved, I don't know what 2 that particular width is. But, for example, if 3 you're having a mobile home delivered, it is a wide 4 load. It fits on the chassis. It is approximately 5 8 feet wide. The units come 13 feet wide. So you 6 have overhang of that structure. That is a wide 7 load. There is a whole bunch of requirements to 8 transport that on highway and state, county roads 9 and even local roads. 10 Q Is it permissible to transport a 11 13-foot-wide load -- 12 MR. FETTEN: Objection to form. 13 Q -- on public roads in the State of New 14 Jersey? 15 A With permits. Again, modular homes that are 16 delivered to sites throughout the State of New 17 Jersey or Pennsylvania or New York, they have to get 18 through local roads to get to the site to drop the 19 modular units off. There is special permits that 20 are required and there is special requirements of 21 the transport of that, but, yes, it can be 22 transported if you follow the rules and regulations 23 to do so. 24 Q Are cars permitted to drive in 25 shoulders on roads in the State of New Jersey? 0081 1 MR. FETTEN: Objection to form. 2 A Not permitted to operate on them. They are 3 permitted to stop on a shoulder if there is an 4 emergency or some other reason, valid reason, to 5 have to pull over to the shoulder of the roadway. 6 Q Barring those sorts of circumstances, 7 ordinarily cars should not be driving on shoulders, 8 correct? 9 MR. FETTEN: Objection to form. 10 A They are not permitted to. 11 Q Where a road has no shoulder, how close 12 to the curb are cars permitted to drive in such a 13 situation? 14 MR. FETTEN: Objection to form. 15 MR. CAREY: Objection to the form. 16 A I do not understand that question at all. 17 Q Are roads supposed to have shoulders? 18 Do all roads have shoulders? 19 MR. FETTEN: Objection to form. 20 A Do all roads have shoulders? The answer to 21 that question is no. 22 Q Right. 23 MR. FETTEN: Move to strike. Go ahead. 24 Q Where a road does not have a shoulder 25 but it has a curb, how close to the curb is the 0082 1 traffic permitted to drive? 2 MR. FETTEN: Objection to form. 3 A I don't think there is a motor vehicle statute 4 that indicates that you can't travel so close to a 5 curb. I would have to look that up to see, but I am 6 not aware of one that would regulate where you're 7 supposed to travel. Typically I believe you're 8 supposed to be traveling in your lane of travel, 9 particularly centered in the lane. But I don't know 10 of a particular statute that gives a minimum or 11 maximum distance off of a curb permitted -- that 12 permits someone to travel. 13 Q Are there any standards in the industry 14 with respect to that? 15 MR. FETTEN: Objection to form. What 16 industry? Mr. Clark, that is directed at you. That 17 is not a rhetorical question. 18 Q You can answer. 19 A What industry and what standards are you 20 talking about? 21 Q Well, are the laws the only standards, 22 in your view, that govern prudent contact of motor 23 vehicle drivers, -- 24 MR. FETTEN: Objection to form. 25 Q -- or are there standards, either in 0083 1 various industries or standards of reasonable 2 conduct, separate and apart for motor vehicle 3 laws, -- 4 MR. FETTEN: Objection to form. 5 Q -- that speak to prudence when 6 operating motor vehicles? 7 MR. FETTEN: Objection to form. I 8 thought you were done, as you hesitated each time. 9 That is why I was -- 10 MR. CLARK: Or you thought your 11 objection had more force and would likely be 12 sustained if you said it more than one time. 13 MR. FETTEN: I know you have a sense of 14 humor, and you just exhibited it very well, but I 15 really did think that you had hesitated to the point 16 that you had finished your question, which is often 17 the way you ask questions. So I was objecting to 18 the form before the witness answered. Again, I 19 apologize for jumping in when you weren't done, but 20 sometimes I have difficulty telling when you are 21 done. 22 MR. CLARK: Okay. 23 MR. FETTEN: That is all, Mr. Clark. 24 It wasn't meant to be a two-page dissertation on -- 25 MR. CLARK: How to object? 0084 1 MR. FETTEN: No. How to ask a 2 question. 3 MR. CLARK: Can you just read back the 4 pending question minus the objections? 5 (Whereupon, the requested portion is 6 read back by the reporter as follows: 7 Question: Well, are the laws the only 8 standards, in your view, that govern prudent contact 9 of motor vehicle drivers, or are there standards, 10 either in various industries or standards or 11 reasonable conduct, separate and apart for motor 12 vehicle laws, that speak to prudence when operating 13 motor vehicles?) 14 A Yes. There is drivers' manuals for both 15 passenger automobiles and commercial vehicles. 16 Q Do you feel that you are an expert in 17 the field of the safe operation of motor vehicles? 18 MR. FETTEN: Objection to form. 19 A That is something that we will evaluate in a 20 case in order to come up with opinions in any 21 personal injury case of this nature, sure. 22 Q You should know that when I am asking 23 you questions, I am asking you and I am viewing you 24 as the proffered expert in the case, not John Desch 25 Associates. So you should just understand the 0085 1 question is directed towards you and only you as to 2 your expertise, not sort of the expertise of the 3 company. 4 A Yes. 5 Q Based on your knowledge -- strike that. 6 Given that you hold yourself out as an expert 7 in that field, do you feel that part of your 8 qualifications for being such an expert include your 9 knowledge of such standards and manuals and 10 standards of conduct as it pertains to the operation 11 of motor vehicles? 12 A Yes. 13 MR. FETTEN: Objection to form. 14 Q Do you, based on your knowledge of the 15 laws in this field and the standards in this field, 16 do you have an opinion, one way or another, with 17 respect to how close or how far away a driver should 18 drive from a curb where there is no shoulder in 19 order to drive prudently and safely? 20 MR. FETTEN: Objection to form. 21 Q I know Dale Earnhardt just hugs the 22 wall and kisses the wall on the turns. Some other 23 drivers prefer to drive at the bottom of the track. 24 But my question to you is, a prudent driver in the 25 State of New Jersey driving on a road where there is 0086 1 no shoulder but a curb, how far away from the curb 2 should they maintain? 3 MR. FETTEN: Objection to the form. No 4 pedestrian on the racetrack with Dale Earnhardt, Jr. 5 on the wall when he is just about kissing it. Let's 6 stop with the commentary, Mr. Clark. I object to 7 the form. Ask a question. 8 A Generally, you would be required to operate 9 your vehicle in the center of your travel lane. 10 Q On a 30-foot-wide street with no 11 shoulders, and curbs on either side, and traffic 12 intended to drive in the two directions, one lane in 13 each direction, how wide would each travel lane be? 14 MR. CAREY: Did you say with no curbs? 15 (Whereupon, the requested portion is 16 read back by the reporter.) 17 A Fifteen feet. 18 Q Do you know what type of car Ms. 19 Chikanian was driving at the time of the accident? 20 A I don't know if I have the type of vehicle she 21 was traveling in at the time. I would have to look 22 through and see if that was asked of her. 23 Yes. She was driving a 2000 Ford Explorer. 24 Q How wide is that car? 25 A I don't have the vehicles specs on that, but I 0087 1 would say probably in the area of five and a half to 2 6 feet. 3 Q If the vehicle is -- do you have a 4 calculator? 5 A Not here in the -- right here. 6 Q Well, here is one if you need it. If 7 the vehicle is 6 feet wide and it is a 15-foot 8 travel lane, how far from each side of the lane 9 should the vehicle be driving so as to stay in the 10 center of the lane? 11 MR. FETTEN: Objection to form. 12 A The lane is 15 and, I am sorry, the car is 6? 13 Q Yeah. 14 A Approximately four and a half feet. 15 Q What was the width of the two vans that 16 were parked at the time of the accident? 17 A Approximately 6.2 feet. 18 Q Do you have any indication that the 19 vans were illegally parked in any way at the time of 20 the accident? 21 A No. 22 Q Do you play golf? 23 A Yeah. Not well, but I play. 24 Q Does the travel lane of a roadway, such 25 as the one involved in the accident, vary depending 0088 1 on whether or not a van is parked legally on one 2 side, such as in this case? 3 A Yeah, the width was narrow if there is a 4 vehicle parked there, sure. 5 Q Does the -- strike that. 6 MR. FETTEN: Strike what? 7 MR. CLARK: Does the, uh. 8 MR. FETTEN: Oh, I'm sorry. 9 Q The Cammarano vehicle was traveling 10 westbound, correct? 11 A I believe it was. Yes. 12 Q So what would be the best way to refer 13 to the right side of the travel lane? Should we say 14 north or right side? 15 A It is the north side of the roadway. 16 Q Of his travel lane? 17 A Of his travel lane. He is traveling westbound 18 so that curb line would be on the north side of the 19 roadway. 20 Q When you say that the travel -- that 21 the width of the travel lane would be lessened or 22 shrink due to the vans being parked on the north 23 side curb area, -- strike that. 24 Is that what you said, that the width of the 25 travel lane would shrink or lessen? What did you 0089 1 say when the vans were parked? 2 A I thought I said it would narrow. 3 Q Would it narrow in that the right -- 4 strike that. 5 Would it narrow in that the north side border 6 of the travel lane would come in? Or would both the 7 north and right side of his travel lane come in? 8 MR. FETTEN: Objection to the form. 9 A The width of the lane would narrow by the 10 amount that the vehicle's width occupying that 11 parking space extends out into that lane. So if you 12 had a 15-foot lane and you had a 6-foot vehicle 13 parked approximately 6 inches to a foot off the 14 curb, it would narrow by about 6 to 7 feet. 15 Q And it would narrow by the north border 16 of the lane coming in? Or would both the north and 17 south parts of the lane come in? 18 A Just the north. 19 Q Got it. I am going to show you an 20 exhibit which has been marked as Cammarano-4 on 21 3-12-07. Can you take a look at that picture? You 22 have seen it before? 23 A I believe the it is one of the police accident 24 scene photos, yes. 25 Q Can you estimate for me the distance 0090 1 between the parked van and the red line in the 2 picture, meaning the actual distance, the distance 3 between those two as it appears, best you can? 4 A Maybe 18 inches. 5 Q That's a little bit under 2 feet? 6 MR. FETTEN: Objection to form. 7 A Be a foot and a half. 8 Q Can you estimate for us how far it 9 appears the van at the -- strike that. 10 Can you estimate for us how far it appears 11 that the van with the American flag ribbon is parked 12 from the curb? 13 A It's difficult from this angle. I can't see 14 the side of the vehicle as it relates to the curb. 15 I can barely see the right side rear tire on there. 16 It looks like just a couple of inches. 17 Q Okay. Thanks. 18 What was the speed limit for Cammarano? 19 MR. FETTEN: Objection to form. 20 A I believe it was posted at 25. 21 Q And do you have an opinion, one way or 22 the other, in your review of this case how fast Mr. 23 Cammarano was traveling? 24 A There was no physical evidence to allow us to 25 do a assessment as to the speed he was traveling at. 0091 1 Our only estimate as to his speed is based upon the 2 witness's testimony who indicated he wasn't 3 traveling fast. His testimony is that he is 4 traveling under the speed limit of 25. So in the 5 area of less than 25. In the area of about 20, I 6 believe, is his estimate. 7 Q Okay. Well, fast is a relative term, 8 right? 9 A Yes. 10 Q So if a witness says he wasn't 11 traveling fast, that really doesn't give you -- 12 strike that. 13 So if a witness testifies he wasn't traveling 14 fast, with nothing else, that doesn't really give 15 you an estimation of a number mile per hour, does 16 it? 17 A It doesn't give me a number, estimate of 18 number mile per hour, but it would lead me to 19 believe that not traveling fast would mean that it 20 was not exceeding the speed limit, which is 21 consistent with his testimony. 22 Q Did you see any evidence in the case 23 that Mr. DaCruz was vaulted 10 feet into the air 24 upon impact? 25 A There was an estimate as to how far he went up 0092 1 off the ground. I believe it was in the area of 2 around 7 to 10 feet. Somewhere in that area is the 3 estimate that was given. 4 Q Okay. So how, if at all, I mean, can a 5 guy -- how, if at all, does that evidence affect 6 your opinion as to how fast the Cammarano vehicle 7 was driving to vault the victim approximately 10 8 feet in the air? 9 MR. FETTEN: Objection to form. 10 A I don't believe he was vaulted in the air. I 11 believe his movement was from that corner down the 12 side of the vehicle. The witness may have seen the 13 feet come up in the air, but generally he slides 14 along that hood, impacts by the --, hits that 15 outside mirror and rotates, pirouettes off the right 16 side of the vehicle. The height at which he was 17 estimated to be off the air is, of course, just an 18 estimate. But if you take the height of the 19 vehicle's hood, which is probably about -- and I can 20 tell you exactly what it is if I look at it. I 21 should do that. The hood in the base of the 22 windshield alone is 4 foot off the ground. So if I 23 am struck by the front of the vehicle and I am just 24 lifted onto the hood, I am already 4 feet. I may 25 only travel another 3 or 4 feet up from that. That 0093 1 is not a good indication of speed from impact. The 2 best indication would be the throw distance, the 3 distance the pedestrian travels from the impact area 4 to final rest. However, in this case, because it 5 was a side fender impact and he wasn't carried on 6 the vehicle for a distance, that where he achieved 7 the speed of the vehicle at impact, there is no way 8 of determining his speed based upon the distance 9 traveled from impact to final rest. In addition, 10 the police never documented where he was standing 11 when he got hit precisely. There was no physical 12 evidence like a shoe scuff on a roadway. And they 13 never measured where he came to final rest. Those 14 two measurements are required in order to determine 15 the speed from an impacting vehicle to a pedestrian. 16 Those are unknowns. 17 Q Doesn't the blood stain on the curb 18 speak to where he landed? 19 MR. FETTEN: Objection to form. 20 A The blood stain on the curb would indicate 21 that at some point he was at rest at that area. We 22 don't know if after he hit the ground whether he, on 23 his own force or his own power, moved forward, 24 rolled to the curb, crawled to the curb or whatever. 25 There is no documentation as to where final rest 0094 1 was. If we assume that that blood is where he first 2 hit the ground and he remained there and he was 3 unconscious and someone can measure that, then there 4 is a more precise distance. There is not. Just an 5 estimate to at some point after the accident he was 6 at rest there. Whether he crawled there or whether 7 that was the distance that he fell and rolled and 8 tumbled to final rest, again, that is an unknown. 9 Q Are you aware that he was knocked 10 unconscious on the impact? 11 A For a period of time. 12 Q And you would not expect, would you, 13 that emergency personnel would have rested him, 14 like, on the curb there, if they were to have moved 15 him over to the grassy area? 16 MR. FETTEN: Objection to form. 17 A I have no idea what they would have done to 18 him. 19 Q Okay. Do you have CPR or first aid 20 certification from the Red Cross or any other 21 certifying entity? 22 A No. 23 Q Did you ever consider getting that, 24 being that you are in the accident investigation 25 field and you might be called upon? 0095 1 A No. 2 Q Now, what if he flew at least 10 feet 3 in the air? How, if at all, would that affect your 4 opinion as to speed? 5 A It wouldn't affect -- I think I covered that 6 before. The height at which someone is up in the 7 air is not a methodology of determining speed at 8 impact, how high a pedestrian goes in the air. It 9 is the distance he travels from impact to final 10 rest. 11 Q Why -- is the height a person flies 12 into the air irrelevant when it comes to estimating 13 the speed of a vehicle? 14 A Not irrelevant, but you need other data in 15 order to -- that alone is not going to allow you to 16 determine what his speed is. 17 Q How is it relevant? 18 MR. FETTEN: Objection to the form. 19 A You would never know how high he actually went 20 into the air. If you knew that precisely, you can 21 determine how long it would take him to fall. You'd 22 have to then know the pedestrian's coefficient of 23 friction with the roadway. So once he fell, 24 whatever his velocity was, how long it would take 25 him to travel to final rest. As I said before in 0096 1 this case, it is not a full frontal engagement of 2 the pedestrian. He doesn't wrap up onto the hood, 3 doesn't achieve the speed of the vehicle before the 4 vehicle starts to brake, and he separates from the 5 vehicle. So none of that is relevant in this case. 6 Q Coefficient of friction is an 7 engineering concept, correct? 8 A It is a term to describe the friction value 9 between two services like, for example, rubbing my 10 hands together. There is a coefficient of friction 11 with my hand, same with the table, same with the 12 tire and roadway. 13 Q Is that an engineering concept? 14 A It is an accident reconstruction concept as 15 well as an engineering concept. 16 Q Have you ever been qualified as an 17 expert in the field of coefficient of friction. 18 MR. FETTEN: Objection to the form. 19 A That qualification, there is no specific 20 qualification for that. One of the areas that is 21 analyzed at almost any collision of this nature is 22 to determine the coefficient of friction. If you 23 are assessing speeds, speed is the only thing that 24 you're gonna use that for in a case like this. And 25 since there are so many unknowns, the coefficient of 0097 1 friction of this roadway at the time does not play 2 into analyzing the speed of the vehicle or to 3 determine his speed, the pedestrian, from impact 4 with the vehicle. 5 Q Is it likely that the Cammarano vehicle 6 traveling between 20 and 25 miles an hour would have 7 launched the victim at least 10 feet into the air, 8 or it's unlikely that at that speed the victim would 9 have been launched at least 10 feet into the air? 10 MR. FETTEN: Objection to form. There 11 is no foundation for that question whatsoever based 12 on this witness's testimony or based upon the 13 testimony of any witnesses in this case. So unless 14 you can point me to that, I object to the form of 15 the question. 16 (Whereupon, the requested portion is 17 read back by the reporter.) 18 A That would not be inconsistent with those 19 speeds, 20 to 25 miles an hour. 20 Q In your opinion, the Chevy Suburban 21 traveling between 20 and 25 miles an hour could 22 launch the victim at least 10 feet in the air? 23 MR. FETTEN: Objection to form. 24 Q So I understand your answer. 25 A The vehicle traveling that -- this type and 0098 1 style vehicle traveling at 20 to 25 miles an hour 2 striking a pedestrian with the front corner of the 3 vehicle, he could be lifted off the ground in that 4 area of, as you are saying, 10 feet off the ground. 5 Q At least 10 feet? 6 MR. FETTEN: Objection to form. 7 A Yeah. 8 Q What is that opinion based on? 9 A It's based upon throw formulas calculating 10 pedestrian speed from impact. It is also based upon 11 the fact that the hood height at the windshield is 4 12 feet. As I mentioned before, if you just wrap over 13 onto the hood and his feet came off the air three 14 feet, he would be up in that 7-, 8-foot area. 15 Q Have you devised any throw formulas or 16 constructed any throw formulas in this case? 17 A No because there is insufficient evidence to 18 use to determine speed from throw distance. 19 Q Do the throw formulas also involve the 20 distance by which a pedestrian gets launched 21 skyward, or does a throw formula only speak to the 22 distance that a pedestrian gets launched laterally? 23 A There may be some that have that factored in, 24 but that would be -- that formula would not be used 25 because that distance is indeterminate. Unless you 0099 1 have someone there to measure that distance, it is 2 only an estimate of someone that sees something for 3 an instance that says, I think that was 10 feet. If 4 I know if the pedestrian is struck and I can 5 determine where he was when he was hit and I know 6 where he comes to rest and they document it, that is 7 a known distance. An estimate of about 10 feet is 8 not used in the formulas. 9 MR. CLARK: Note for the record that 10 just before the witness said the word second or just 11 after the witness said the word second in response 12 to that question, he snapped his fingers. 13 (Whereupon, the requested portion is 14 read back by the reporter.) 15 MR. CLARK: I am sorry. The finger 16 snapping occurred near the word instance, not near 17 the word second. 18 Q So if the witness estimated that he was 19 thrown at least 10 feet in the air, that is not 20 helpful to you because it was not measured and she 21 only saw it during a split second period? Do I 22 understand that correctly? 23 A No, you don't understand it correctly. 24 Q Please explain. 25 A I am saying in this instance the way this 0100 1 collision occurred between the vehicle and the 2 pedestrian, there is no formula to be used to 3 determine the speed of the vehicle at the time of 4 impact with the pedestrian. 5 Q What if you knew the pedestrian flew at 6 least 10 feet in the air? Would that be helpful to 7 you at all in estimating the speed of the vehicle at 8 impact? 9 MR. FETTEN: Objection to form. 10 A If that was the only known, no. 11 Q What if that was a known fact in 12 connection with everything else that you've reviewed 13 in the case? Would that fact be helpful to you in 14 determining the speed of the vehicle at impact? 15 MR. FETTEN: Objection to form. He's 16 already given his answer as to the various factors 17 that are involved. You are asking him to repeat 18 them again. You've asked this question, three, 19 four, five times now. I object to the form. Go 20 ahead. He can answer. 21 A That would be insufficient evidence to analyze 22 the speed of the vehicle from. 23 Q But how about that in connection with 24 the other evidence that you reviewed in the case? 25 Would that be helpful? 0101 1 MR. FETTEN: Objection to form. Same 2 objection as previously stated. 3 A No. There is no data in this particular 4 accident, based upon the dynamics of the collision 5 between the vehicle and the pedestrian, that would 6 allow someone to determine the speed of the vehicle 7 based upon where the pedestrian landed or how he 8 went up. None of those distances are known. 9 Q What other information would you need 10 to arrive at an estimate of speed? 11 MR. FETTEN: Objection to form. Again, 12 same objection. Go ahead. It is easier to let you 13 go ahead and answer again for the eighth time. 14 A I think I discussed that. You need to know 15 where he was standing when he got hit, where he 16 comes to final rest before he's moved. You also 17 need to see that the -- based upon the dynamics of 18 the collision that the pedestrian actually comes up 19 on the vehicle and is carried along on the vehicle. 20 The way the formulas work is when a pedestrian gets 21 hit by the front of the vehicle and it wraps on the 22 vehicle, the pedestrian then achieves the speed that 23 the vehicle is traveling at at that time. Once the 24 vehicle starts to decelerate when the brakes are 25 applied, the pedestrian which is traveling at the 0102 1 original speed is now traveling faster than the 2 vehicle, so the pedestrian separates from the 3 vehicle, hits the ground, tumbles to final rest. 4 That did not occur in this case. That pedestrian 5 wrapped around the fender, contacted the side mirror 6 and pirouettes off the right side of the vehicle and 7 came to rest near the curb. 8 Q When a car travels on a roadway with a 9 speed limit of 25, how fast should that vehicle 10 travel on that roadway? 11 MR. FETTEN: Objection to form. 12 A I don't understand that question. 13 MR. FETTEN: Are you asking the witness 14 for a legal conclusion? A legal opinion? 15 Q You can answer. 16 A How fast could he travel legally? Twenty-five 17 miles an hour. 18 MR. FETTEN: Excuse me. Are you 19 turning the screen around to show the witness 20 something? You are turning your little computer 21 with the DVD around as you are asking questions. 22 Unless you're gonna show him something, let's stop 23 with the gamesmanship and the theatrics. If you are 24 gonna show him something on the DVD, show him. But 25 don't turn it around as if to prompt some testimony 0103 1 out of the witness. Maybe that is not what you're 2 doing. Maybe I am misreading it. If I am I 3 apologize, but there is no reason to distract the 4 witness from your questions. 5 MR. CLARK: Do you have any problem 6 with me using video? 7 MR. FETTEN: Yeah, I do. 8 MR. CLARK: I would like to ask the 9 witness some questions off the video. Is that okay, 10 or should we do it a certain other way? 11 MR. FETTEN: You're asking other 12 questions and turning the screen around towards the 13 witness. I don't understand the purpose when he is 14 answering other questions that you're asking, so 15 stick to the questions. If you are gonna use the 16 video, you want to use the video for something, I 17 guess you can try and do that, Jerry. I mean -- but 18 what you are doing is distracting to the witness. I 19 think it is inappropriate. I am not gonna start 20 calling names and stuff. I am just saying you keep 21 spinning around. I turned it back away so that the 22 witness will focus on the question that is being 23 asked. 24 MR. CLARK: Okay. 25 MR. FETTEN: I am trying to be fair to 0104 1 the witness. I am trying to be fair to you, too. 2 But I can't allow you to act this way. It is not 3 being picked up on the record, all right, that you 4 have this little Panasonic player and you keep 5 turning it around to face the witness, and I turn it 6 back. And we've done that a number of times, and 7 you keep turning it around while you are asking 8 other questions. 9 MR. CLARK: Okay. 10 MR. FETTEN: Are you saying that is 11 inaccurate? 12 MR. CLARK: I turned the video around 13 because I am about to ask a question about the video 14 similar to when the witness is answering a question 15 and I am listening, flipping through, pulling out 16 the next exhibit for the next question in the 17 interest of time so that I am ready with an exhibit 18 or whatever I want to use for the next question. We 19 do it all the time. A lot of times in court at a 20 trial, for example, the witness will be testifying, 21 giving testimony, and I will be quietly pulling out 22 the exhibit for the next question so that we are 23 ready right away for the next question. That is 24 exactly what I was doing there. 25 MR. FETTEN: But no, Jerry. You are 0105 1 asking a different question that the witness is then 2 being expected to answer, and while you are doing 3 that you are spinning the thing around to show him. 4 You are not asking him a question about the video. 5 You are trying -- I don't know what you are trying 6 to do. I accept your explanation. Let's move on, 7 okay? 8 MR. CLARK: I am spinning it around 9 because the next question I want to ask is about the 10 video, so I want to have it in place for the next 11 question. 12 MR. FETTEN: As I said, maybe I misread 13 the situation. I am trying to be fair. 14 MR. CLARK: Now I want to spin it 15 around and start asking questions about it. Is that 16 okay? 17 MR. FETTEN: Fine. 18 MR. CLARK: For the record, we have 19 marked the DVD EMOLO-5F. 20 Q Now, so if a car is traveling down a 21 street where the speed limit is 25, the car should 22 not travel any faster than 25, correct? 23 MR. FETTEN: Objection to form. 24 A That is correct. He would be exceeding the 25 speed limit for the roadway. 0106 1 Q Now, when a car travels down a street 2 where the speed limit is 25 and sees an Advance 3 School Warning sign and then a school sign painted 4 on the street, what, if anything, different should 5 the driver do? 6 A That is an advance. It is telling him that 7 there is pedestrian crossing up ahead and there is a 8 school zone up ahead. He should be alert to 9 pedestrian traffic, but he is not exceeding or 10 breaking or violating a law by traveling still at 25 11 miles per hour. 12 Q Should a driver only be alert for 13 pedestrian traffic in school zone areas, or should a 14 driver be alert for pedestrian traffic in all 15 residential areas? 16 MR. FETTEN: Objection to form. 17 A In all residential areas. But it would 18 violate expectancies. A pedestrian could come 19 running out behind or walking out behind parked 20 vans. If he was approaching an intersection in a 21 residential area where he saw children or 22 pedestrians in the area, then yes. 23 Q So basically a driver who comes inside 24 a school zone should be extra careful? 25 MR. FETTEN: Objection to form. 0107 1 A Should be careful all the time you are 2 operating a motor vehicle. It is the driver's 3 responsibility to operate it in a prudent and alert 4 manner, so he should be prudent and alert in all 5 instances. 6 Q Then why does the State of New Jersey 7 erect the Advance School Warning sign, as was in 8 this case, and the painted school zone sign on the 9 ground if the driver should be alert in all areas? 10 MR. CAREY: Objection to the form. 11 MR. FETTEN: Objection to the form. 12 A They are warning him of an upcoming area where 13 there will be school children crossing the roadway. 14 That's what the sign is for. 15 Q Okay. Well, what does the sign depict 16 there, the Advance School Warning sign. Is that 17 just a child? 18 MR. FETTEN: Hold on. I am looking at 19 the video. It is very fuzzy on here. Did you have 20 a hard picture of something similar? Is it easier? 21 MR. CLARK: I don't know. 22 MR. FETTEN: I am asking you. 23 Q Do you prefer the picture or video? 24 A I will look at the picture. 25 Q All right. So I will show you 0108 1 Cammarano-1, which was marked on 3-12-07. 2 A It shows two pedestrians. 3 Q Okay. Doesn't it look like a parent 4 and a child? 5 A It looks like two pedestrians, one taller than 6 the other. 7 Q Okay. When a driver passes that and 8 encounters a school zone, shouldn't the driver be in 9 a state of enhanced awareness for pedestrian traffic 10 in the area? 11 A Sure. That's what the sign is alerting you 12 of. 13 Q Okay. Off the record. 14 (Whereupon, a brief recess is taken.) 15 Q I am going to show you an exhibit that 16 was marked as Chikanian-1. Do you see the black 17 line kind of in front of the van? 18 MR. CLARK: Just for the record, I am 19 going to call for production of the original exhibit 20 of Chikanian-1. At a deposition there was an X 21 placed at the bottom picture on Chikanian-1, and I'd 22 like the original production of that picture. 23 MR. FETTEN: Well, -- 24 MR. CLARK: It was X'd at either 25 Chikanian's deposition or the deposition of 0109 1 Francielle DaCruz. And my recollection is that Ms. 2 Wieback retained the original exhibit. If you can 3 put that in the log. 4 MR. FETTEN: I will look for it because 5 I don't know what you mean by -- 6 MR. CLARK: I need to see the original. 7 MR. FETTEN: I will look for it and I 8 will give you a call, assuming I have it. 9 Q Is it your opinion that the plaintiff 10 was struck in the front of his body? 11 A Yes. 12 Q I am going to show you an exhibit 13 Francielle-3. Do you see Francielle-3? 14 A Yes. 15 Q Do you see the picture at the bottom? 16 A Yes. 17 Q Okay. Does it look to you there that 18 he is standing in front of the van? 19 MR. FETTEN: Objection to the form of 20 the question. There is no foundation for the 21 picture at all, nor is any foundation for the facts 22 in the question, as a result. 23 Q Although to the southern side of the 24 van, does it appear that he is standing in front of 25 the van? 0110 1 A It appears he is standing in front of the left 2 side of the parked van near the license plate area. 3 And it also appears to me that he is leaning out 4 into the roadway. 5 Q Is it your understanding that that is 6 where he was standing at the time of the accident? 7 MR. FETTEN: Objection to form. 8 A No, that is not my understanding. 9 Q Okay. If that -- okay. 10 A And not in that manner either. 11 Q Neither in the direction nor in the 12 orientation? 13 A Nor in the manner. He looks like he is 14 leaning out into the roadway. His feet are 15 stationary but his upper torso is leaning out into 16 the roadway. 17 Q Is that your understanding of where he 18 was standing at the time of the accident? 19 MR. FETTEN: Objection to the form. 20 MR. CAREY: Objection. Asked and 21 answered. 22 Q Is that your opinion as to where he was 23 standing at the time of the accident? 24 MR. FETTEN: Objection to form. 25 A No. 0111 1 Q In your opinion, if you could point on 2 this picture, either the bottom picture or the top 3 picture on this exhibit Francielle-3, why don't you 4 point, in your opinion, where he was standing at the 5 time of the accident. 6 MR. FETTEN: Objection to the form. 7 You are using the word standing. You haven't 8 established with this witness or any witness, that I 9 am aware of, that he was standing at any point in 10 time, so I have a problem with the foundation. I 11 have a problem with using this picture, which may 12 not be admissible in and of itself, with this 13 witness. I object to the form of the question. You 14 can carry on as you see fit, but I am going to 15 object to this whole line using this picture. 16 A I couldn't show you here because the vehicles 17 and the pedestrian are standing in the area where he 18 would have been beyond that where I think impact 19 occurred. 20 Q You mean they are standing too far 21 ahead of the van than where the impact occurred, in 22 your opinion? 23 MR. FETTEN: Objection to form. 24 A I couldn't use there photograph. It does not 25 show the area clearly where I believe he was located 0112 1 when impact occurred. 2 Q Okay. Do you have your diagram, that 3 big diagram that you prepared? 4 A Yes, I do. 5 (Whereupon, exhibit Emolo-5H is 6 received and marked for identification.) 7 A This is our reconstruction diagram that was 8 attached to a report as appendix five. 9 Q Does that indicate where you believe 10 the victim was standing at the time of the impact? 11 MR. FETTEN: Objection to form. You 12 are using the word victim. 13 MR. CLARK: I am. I didn't notice. 14 MR. CAREY: Also objection to the word 15 standing. 16 A I believe that's the general location, the 17 approximate location of both the pedestrian and the 18 vehicle at the moment of impact between the two of 19 them. 20 Q Okay. And do you have another copy of 21 this? Or could you create another copy of this? 22 A There were, I believe, five copies generated, 23 one sent with each report. But I can generate this, 24 yes. 25 MR. FETTEN: Mr. Clark, you have one, 0113 1 right? 2 MR. CLARK: Yes. 3 Q Can you estimate on here where DaCruz 4 was standing as depicted in Francielle-3. 5 MR. FETTEN: Objection to form. 6 A Without marking this diagram. Let me just get 7 something to point. 8 Q Yeah. 9 A I can't tell how far forward of the van is, 10 but across the front it appears from that photo that 11 he is standing somewhere in line with this area 12 here. 13 MR. CLARK: I would like to mark that. 14 MR. FETTEN: No, sir. 15 MR. CLARK: Okay. Then we need another 16 copy. 17 MR. FETTEN: Use your copy. 18 MR. CLARK: Okay. 19 MR. FETTEN: I am not even sure the 20 witness is going to be able to do it because he's 21 already explained to you why he can't tell from the 22 picture and you are asking him to mark a diagram 23 based upon a picture that he said he can't even tell 24 exactly where a person is located. 25 MR. CLARK: All right. For the record, 0114 1 we have marked as Emolo-6 my copy of Emolo-5H. 2 Q Just for the record, in answering the 3 previous question a very small dot of blue ink was 4 placed in the area where indicated; is that correct, 5 Mr. Emolo? 6 A That is an estimate as to where he would have 7 been, where he is located in Francielle-3, the 8 bottom photograph, in relationship to the front 9 length, width of the vehicle, not how far forward 10 from the vehicle he is. 11 Q Got it. Can you indicate a little bit 12 more clearly on Emolo-6 that same area? 13 A I am making it a little bigger so it is 14 clearer, but somewhere in that area. 15 Q Got it. Now, if DaCruz was standing in 16 that area at the time of the impact, you know, say 17 10 feet ahead of the van yet on the northern side of 18 the plane of the van, do you understand what I am 19 saying? You understand the hypothetical. 20 MR. FETTEN: Objection to form. 21 A I believe the hypothetical is if I take that 22 line and move it forward 10 feet parallel with the 23 curb. 24 Q Correct. If you move it forward 10 25 feet of the X that you just indicated, and that is 0115 1 where he was standing, how, if at all, would that 2 change your opinions and conclusions in the case? 3 MR. FETTER: Objection to form. 4 Q That he is on the northern side of the 5 plane of the van? 6 A It wouldn't change my -- 7 MR. FETTER: Objection to form. 8 A It wouldn't change my opinions in any way. 9 Q Okay. Why not? 10 MR. CAREY: I object to the form of the 11 question because you are saying that -- if you are 12 asking him, just so I am clear, that if he was 10 13 feet forward, if he was standing there, would that 14 change his opinions? 15 Q Yes. Do you want to read it back? 16 Let's read the question back. 17 (Whereupon, the requested portion is 18 read back by the reporter.) 19 Q All right. And why not? Or perhaps 20 upon thinking about it in more detail it might 21 change your opinions either way. Let us know. 22 MR. FETTEN: Object to the form. 23 A If you move the X forward 10 feet, he still is 24 inside the left edge of the vehicle. It is our 25 opinion that the Cammarano vehicle did not veer to 0116 1 the right, stayed in its travel lane, continued 2 past. If, hypothetically, he was there 10 feet 3 forward from that X, parallel with the curb, there 4 could have been an accident. 5 Q If he was standing there in that area 6 10 feet ahead and struck by the Cammarano vehicle in 7 that area, under that hypothetical, how, if at all, 8 would your opinions change as to who was at fault? 9 MR. FETTEN: Objection to the form. 10 There is insufficient facts in that hypothetical to 11 be a valid hypothetical question, so I object to the 12 form. 13 MR. CAREY: Objection to the form. If 14 you could read the question back so the witness can 15 answer it. 16 MR. FETTEN: Do you need it read back? 17 THE WITNESS: Yeah. 18 (Whereupon, the requested portion is 19 read back by the reporter.) 20 A First of all, I can't answer the question 21 because that's not where we believe he was standing, 22 we don't believe he was standing at the time of 23 impact. We believe he came walking out from the 24 front of that vehicle into the travel lane as our 25 vehicle or Mr. Cammarano's vehicle was traveling 0117 1 straight down the roadway without veering to the 2 left. So in that hypothetical, I don't think the 3 impact would have occurred, so I can't give you an 4 opinion as to liability because it wouldn't have 5 happened. 6 Q I understand that you disagree that the 7 facts of that hypothetical apply to this case, but 8 when an expert in a case is asked a hypothetical, he 9 is asked to assume those facts. So I am asking you 10 to assume the following facts. And I will repeat 11 them: That the witness was standing 10 feet forward 12 of the X that you put on Emolo-6 at the time being 13 struck by the Chevy Suburban in that area. Assume 14 those are the facts presented to you in that 15 hypothetical scenario. How, if at all, would that 16 change your opinions? 17 MR. FETTEN: Objection to form. Don't 18 answer it. He already answered the question. You 19 added commentary by yourself, and he already 20 answered the question as best he can. That is his 21 answer. He is not gonna answer the same question 22 over and over again. Next question, Mr. Clark. 23 MR. CLARK: Okay. Are you claiming 24 privilege in directing the witness not to answer the 25 question? 0118 1 MR. FETTEN: I am claiming harassment 2 is what I am claiming. 3 MR. CLARK: Okay. Are you claiming 4 privilege? 5 MR. FETTEN: No. I am not claiming a 6 privilege. You are not gonna ask the same question 7 over and over and over again. 8 MR. CLARK: A, it is a critical 9 question. B, it was asked one time in a 10 nonresponsive way. Therefore, it was asked again to 11 attempt to elicit a responsive answer. C, there is 12 no basis under the rules to direct a witness not to 13 answer a question based on anything other than 14 privilege. If you believe the witness is being 15 harassed, then you should suspend the deposition and 16 make the proper application. But I can tell you 17 right now that I will make the motion returnable not 18 on the 17th but on the next motion day to 100 19 percent bring this witness to Monmouth County to 20 answer this line of questioning. 21 MR. FETTEN: You're correct there is no 22 privilege, so he can answer the question. But at 23 some point it has to stop. He already answered the 24 question. 25 MR. CLARK: Okay. Go ahead, can you 0119 1 just read back the pending question? 2 (Whereupon, the requested portion is 3 read back by the reporter as follows: 4 Question: I understand that you 5 disagree that the facts of that hypothetical apply 6 to this case, but when an expert in a case is asked 7 a hypothetical, he is asked to assume those facts. 8 And I will repeat them: That the witness was 9 standing 10 feet forward of the X that you put on 10 Emolo-6 at the time being struck by the Chevy 11 Suburban in that area. Assume those are the facts 12 presented to you in that hypothetical scenario. 13 How, if at all, would that change your opinions?) 14 MR. FETTEN: Are those enough facts in 15 that hypothetical for you to give an opinion? 16 MR. CLARK: Time out. You had an 17 extremely long objection, okay. It was placed on 18 the record. It went so far as to actually direct 19 the witness not to answer the question. You then 20 recanted on that. Now that the question has been 21 read back, you've gone vastly beyond a speaking 22 objection to actually ask your own witness a 23 question to assist him or steer him in how to answer 24 a question. That is highly inappropriate and should 25 not be done, and I object to that. 0120 1 MR. FETTEN: As I stated, Mr. Clark, I 2 think the question itself is devoid of sufficient 3 facts to be a proper hypothetical. If you don't 4 want to try and cure that, I guess, okay. 5 MR. CLARK: Can you read back the 6 question one more time now? 7 A I have a question of you though with that 8 hypothetical. The head is 10 feet forward of that X 9 parallel with the curb. Is he facing eastbound? 10 Facing westbound? Which way is he facing? 11 Q He is facing westbound. 12 A So he has his back to approaching traffic? 13 Q Correct? 14 A If the vehicle then, that hypothetical, which 15 I don't agree with any of those facts, if the 16 vehicle then veered off and hit him at that point, 17 there would be some liability on the part of that 18 driver. The pedestrian was clearly outside of that 19 travel lane and there would be no reason for him to 20 veer off when he would have been able to see the 21 pedestrian standing there. 22 Q Okay. How does the orientation of how 23 the pedestrian -- strike that. 24 How does your opinion as to the orientation 25 that the pedestrian was when he was struck factor 0121 1 into your analysis and conclusions in this case? 2 A It factors into them by the fact that if he is 3 coming out from behind the front of a parked car and 4 moving out into the traffic lane when the vehicle is 5 so close to pose an immediate hazard to his safety, 6 he shouldn't have done that. Should have stopped, 7 looked for approach traffic before he moved out from 8 behind a parked van into a traffic traveling. 9 Q You asked for a clarification or a 10 supplementation of the facts presented to you in the 11 hypothetical, and that question or supplementation 12 was where was the pedestrian standing? Was he 13 standing facing northbound or westbound or 14 eastbound? And I clarified and/or supplemented the 15 hypothetical by saying that he was standing facing 16 westbound. And then you proceeded to answer the 17 question. My question to you is why did you need 18 that clarification as to where the witness was 19 facing at the time of impact? 20 A If he is facing eastbound, he, too, would have 21 some liability. He sees the vehicle coming at him 22 and he just stands there and let's the vehicle hit 23 him. He only clipped him with the corner of the 24 vehicle. He would only have had to take a step to 25 his left and the accident would have been avoided. 0122 1 Q In your opinion in this case and the 2 facts that you reviewed in this case, why was it 3 important for you to arrive at an opinion as to 4 where he was facing at the time of impact? 5 A It is critical in any analysis to determine 6 where the pedestrian is, his rate of movement, is he 7 stationary, is he walking, which way is he facing. 8 All of those factors are important to come up with 9 an opinion as to fault in a motor vehicle accident. 10 Q Well, I understand that generally in 11 any motor vehicle accident, but in this case 12 specifically, why was it important for you to arrive 13 at an opinion as to whether or not he was struck in 14 the front or struck in the rear. 15 MR. FETTEN: Objection to the form. 16 A The importance of it is to show that as he 17 comes out of this hidden position behind the front 18 of the van that he is approaching -- he is facing 19 approaching traffic. And had he just stopped at 20 that point and looked at approaching traffic, he 21 could have stayed in the zone of safety inside the 22 outside left edge of that van and the accident would 23 have been avoided. 24 Q What if he was struck in the rear in 25 this case? 0123 1 MR. FETTEN: Objection to the form. 2 A I don't believe he was struck in the rear. I 3 believe he was struck facing the vehicle as it hit 4 him. But even if he was struck in the rear and he 5 was still walking out into the roadway with his back 6 to approaching traffic, I think that would even show 7 more negligence on his part. 8 Q Do you have any facts to lead you to 9 conclude that he was walking backwards into traffic? 10 A No. 11 Q Okay. And you don't have any facts 12 that he intended to commit suicide, do you? 13 A No. 14 Q That is, step in front of the traffic 15 like someone might step in front of a train. 16 A No facts that he was trying to commit suicide. 17 The fact that he was inattentive by walking out into 18 an active travel lane. 19 Q Did you find the testimony of the 20 witness Chikanian helpful to you in your analysis? 21 A The witness provided testimony with regards to 22 the facts that we considered in this case, just like 23 the testimony from both of the involved parties. 24 Q Did you find that testimony helpful? 25 A Yes. 0124 1 Q Did you find that witness to be 2 credible? 3 A Yes, for the most part. 4 Q Anything about that witness that you 5 found to be incredible -- 6 MR. FETTEN: Objection to the form. 7 Q -- and not helpful? 8 A No. 9 Q Do you have plans to attend any 10 seminars this year? 11 A Yeah. 12 Q Which ones are coming up? 13 A There is a joint conference coming up in -- I 14 believe it is the middle of October down in Ocean 15 City, Maryland, and there is a possibility of 16 attending a course down at the University of North 17 Florida. 18 Q I show you Chikanian-3, another angle 19 of Francielle-3. Do you see the photo at the top of 20 Chikanian-3? 21 A Yes. 22 Q Okay. And as far as the bottom of 23 Francielle-3, the photo on the bottom of 24 Francielle-3, you indicated your estimation on 25 Emolo-6 in the blue X where he was standing relative 0125 1 to the left side of the van, although not 2 necessarily relative to the front of the van, 3 correct? 4 A Yes. 5 Q Okay. If he was standing as depicted 6 in the bottom of Francielle-3 and Chikanian-3, if 7 that is how he was standing at the time of the 8 accident, how, if at all, would that affect your 9 opinions and conclusions in the case? 10 MR. FETTEN: Objection to the form. 11 Plus there is no foundation for these pictures. 12 There is no representation that the bottom of 13 Francielle-3 and the top of Chikanian-3 are the same 14 position, whether the vehicles -- I mean, you know, 15 I have a lot of objections. I won't go on, Mr. 16 Clark, but go ahead. 17 A Assuming that, again, hypothetically that 18 that's where he is standing in this photograph, it 19 would not change my opinion. Again, I would believe 20 that the accident would not have occurred because 21 the Cammarano vehicle would have traveled straight 22 past him without impact. 23 Q Referring to the photograph at the top 24 of Chikanian-3 in that response. 25 I understand you saying that it wouldn't 0126 1 change your opinion because the accident would not 2 have occurred in the hypothetical. I am asking you 3 to answer that he does, in fact, get struck by the 4 Cammarano vehicle based on these orientations. How, 5 if at all, would that change your opinions and 6 conclusions? 7 MR. FETTEN: Objection to form. 8 Q I understand you disagree with the 9 hypothetical. 10 A Then, again, there would be fault on the 11 operator of the vehicle. 12 Q Did you read any testimony in the case 13 that Cammarano was clueless right after the 14 accident? That he was clueless and didn't even know 15 he hit someone? 16 MR. FETTEN: Objection to form. Did 17 you read that anywhere, if you recall? 18 A Yes, I did. 19 Q Do you have any comment on that, -- 20 MR. FETTEN: Objection to form. 21 Q -- the fact that he seemed to be 22 clueless? 23 A Well, not clueless. The fact that he was 24 unaware that he struck a pedestrian, that would all 25 go to support the fact that the pedestrian moved out 0127 1 into the roadway, walked into the side of his 2 vehicle, versus just standing there where he would 3 have been visible to an approaching motorist. 4 Q Well, you say that that supports that 5 he walked out in front of the car facing the car. 6 But wouldn't that also support the notion that he 7 wasn't paying attention, Cammarano? 8 MR. FETTEN: Objection to the form. 9 Q That being that he was characterized as 10 being clueless? 11 A Well, again, I don't characterize it as 12 clueless. He said he was unaware. 13 Q I am not talking about Cammarano's 14 opinion of himself. I am talking about the witness 15 Chikanian's opinion that he was clueless and didn't 16 even know he hit someone. My question to you is you 17 said that that supports that the pedestrian, walked 18 out in front. But my question to you is can it also 19 support that Cammarano wasn't paying attention? 20 MR. FETTEN: Hold on. You just changed 21 the question because now you put a label on the 22 person who you claim said that. 23 Q Was there any dispute that she said 24 that? 25 MR. FETTEN: Counsel, let me finish my 0128 1 objection. 2 MR. CLARK: Sorry. 3 MR. FETTEN: You first said are you 4 aware of any witnesses, then you specifically said 5 Chikanian, relying upon Chikanian's opinion or a lay 6 opinion which, I mean, I don't know what to say. I 7 object to the form. 8 MR. CLARK: I am sorry I could have 9 sworn she was the one that said clueless. 10 MR. FETTEN: Jerry, you can go ahead 11 and ask the question. He can answer it. I object 12 to the form. 13 Q Page 29, line 25. Let's see here. 14 MR. FETTEN: What are you asking the 15 witness? The question that's pending on the record. 16 MR. FETTEN: He can answer it. I 17 objected to the form. I need that read back. 18 Q So the part where she said on page 39, 19 starting at line seven. Okay. All right. Let's 20 talk about that a little bit. After you saw him fly 21 through the air and land on the curb, what did you 22 see next? 23 Answer: Actually, I'd like to retract my 24 statement. 25 Question: Sure. 0129 1 Answer: It did pass me. 2 Question: Okay. 3 Answer: And I said I didn't even know that 4 he got hit. I'm like, you know, you realize someone 5 is flying in the air. Then I realize he got hit. 6 The black SUV did pass me, and I looked in my 7 rearview mirror and the man did stop. 8 Question: Okay. 9 Answer: Which I assume, Marty, at this 10 point. And then he got out and he had a trench coat 11 on and he said, he puts his hands out, what 12 happened? What happened? And then in the meantime 13 I was calling 9-1-1. That I do remember. Now since 14 you asked that question. He was clueless that he 15 hit the man. Do you recall that testimony from 16 Chikanian's deposition? 17 A Yeah. 18 Q Okay. And does that ring to you of an 19 alert driver? 20 MR. FETTEN: Objection to form. 21 Q The gentleman who is clueless, that he 22 even hit someone? 23 A I said it supports the fact that someone came 24 walking out from in front of a vehicle when it was 25 so close that he didn't get a chance to get a 0130 1 glimpse of that person out of his peripheral vision 2 what he was doing was looking forward because he was 3 driving down the roadway, there were parked cars on 4 his right an opposing vehicle coming at his left. 5 If you are suggesting that he steered over to the 6 right side of the roadway because there was an 7 opposing vehicle, then he would have been looking to 8 his right. He wouldn't have been inattentive to his 9 right. He would have been looking to his right 10 because he has to make sure he doesn't hit the 11 parked vehicles. So the evidence only supports that 12 he is traveling straight down the roadway being 13 attentive to the traffic conditions ahead and the 14 parked vehicles on his right and someone came 15 walking out into the roadway when it was right next 16 to the beginning of that van or the front of the 17 van. That's what it supports. 18 Q Where is the part of your report, the 19 main report, where you said Cammarano said he was on 20 the front of his hood? Oh, yeah. Page ten of your 21 report. Mr. Cammarano stated that Mr. DaCruz ended 22 up stomach down to the head of his Chevrolet 23 indicating he was facing the oncoming Chevrolet. 24 Can you explain that at all? 25 A Explain what? 0131 1 Q Well, how he was clueless that he even 2 hit someone yet he knew the exact orientation of the 3 person on their hood. How do you explain that? 4 MR. FETTEN: Objection to the form. 5 You are taking another lay witness's opinion and 6 pasting that onto Cammarano. I object to the form, 7 Jerry. The question is improper. 8 MR. CAREY: I object, too. There is no 9 evidence that Cammarano said he was clueless. 10 Improper question. 11 Q Go ahead. How do you explain that? 12 A I would explain it the same way. It is a 13 witness is trying to explain how he felt after an 14 accident happened. I don't know how she can 15 determine that he didn't see the pedestrian lying 16 face up on the front of his hood. 17 Q Well, because she said, he said what 18 happened, question mark, twice. 19 MR. FETTEN: Objection to the form. 20 Objection to the form that she is saying that he 21 said that. You can ask the question. I object to 22 the form. 23 Q Then he got out, had a trench coat on, 24 and he said he put his hands out. What happened? 25 What happened, question mark. Did I read that 0132 1 right? 2 A Yeah. 3 Q So how do you explain that? How do you 4 explain that he gets out and says, what happened? 5 Didn't even know he hit someone. 6 MR. FETTEN: Objection. 7 Q Not only did he not know he hit 8 someone, but he knew the exact orientation of the 9 person on the hood. How do you explain that 10 dichotomy there? 11 MR. CAREY: Objection to the form. 12 Taken out of context. Never says he didn't know he 13 hit somebody when he says what happened. Improper 14 question. You can answer. 15 MR. FETTEN: Objection. 16 A Exactly. Her testimony is that he said, what 17 happened? What happened doesn't mean I didn't see 18 the man on my hood. What happened means something 19 happened suddenly and now I get out of my car and I 20 go, "oh, my God. What happened? That is what he is 21 saying. 22 Q Okay. What was it again? Seventy 23 percent defense and 30 percent plaintiff? 24 A Approximately 70/30, yes. 25 Q Okay. When a person gets in an auto 0133 1 accident and is treated at the hospital, you would 2 expect that the hospital staff would want to know 3 how the accident happened, correct? 4 A Yeah, I would believe they would want to know, 5 sure. 6 Q Why would they want to know? 7 A Treat the injuries. 8 Q Okay. And in this situation they would 9 want to know that the person was hit by a car, 10 right? 11 A Yeah. 12 Q Would it matter, in your opinion, what 13 his orientation was or where his feet were? You 14 know, all the different things that someone like you 15 cares about. Do you think the people in the 16 emergency room really care what his orientation is, 17 where he is standing, all that stuff, or they simply 18 want to know that he was hit by a car? 19 A I couldn't answer that. I wouldn't know. 20 Q Okay. Did you consider in your 21 analysis, I am looking at Emolo-6, and you have on 22 Emolo-6 where the vans were at the time of the 23 accident, correct? 24 A The approximate location, yes. 25 Q You also have the approximate location 0134 1 of where you believe, in your opinion, that the 2 large 2006 Chevy suburban was at the time of the 3 impact, correct? 4 MR. CLARK: Objection to form. 5 A Where the Cammarano vehicle was, yes. 6 Q Where was the Chikanian vehicle at the 7 time of the impact? 8 A In the opposing lane some distance down the 9 roadway. 10 Q Do you know how much distance and where 11 down the roadway? 12 A No. I believe her testimony is that she was 13 far enough that Mr. Cammarano could pass without 14 incident without having to swerve or move or just 15 drive straight down the roadway. 16 Q Did you consider where on your diagram 17 she would have been in your pen at the time of the 18 accident? 19 A She didn't give us any specific areas as to 20 where she was. But no matter where she would have 21 been, there is still sufficient room for two cars to 22 pass each other at opposing directions with parked 23 vehicles on the side of the road. 24 Q If she was in the area of the accident, 25 say by the E in Avenue on Dow Avenue, or adjacent to 0135 1 the Cammarano vehicle, that wouldn't change your 2 opinion? 3 A First let me say that we know she wasn't 4 there. She testifies that she is down the road. 5 She is not opposite where the collision occurs. 6 After the collision she comes to rest somewhere in 7 that area. So she is nowheres near the parked 8 vehicle and Cammarano and the pedestrian at the time 9 of impact. She is further down the road to the 10 west. 11 Q Do you agree that this was a tight 12 street for these cars? 13 A Absolutely not. Most residential roadways are 14 approximately 30 feet wide. I know that in the 15 Township of Wayne their requirement for new streets 16 is 30 feet of pavement, 50-foot right-of-way with 10 17 foot right-of-way on either side of the roadway for 18 shade trees and sidewalks. That is a typical 19 residential. 20 Q Parking on either side of the road? 21 A Parking would be permitted during the day, not 22 over night. 23 Q On both sides? 24 A Yes. 25 Q And was there anything about 0136 1 Cammarano's testimony that you thought was 2 incredible or not believable? 3 MR. FETTEN: Objection to form. 4 A No. 5 Q Was there anything about Cammarano's 6 testimony that you thought was inaccurate? 7 A Well, his estimate as to where he thought the 8 pedestrian came out onto the roadway from was based 9 upon his trying to recall where it all happened 10 because it was so sudden. At one point he said he 11 thought he may have come out between the two parked 12 vehicles. 13 Q Anything, aside from that, from 14 Cammarano's testimony that you thought was 15 inaccurate? 16 A No. 17 Q Have you been an expert in cases on 18 behalf of defendants where the defendant is issued a 19 summons? 20 A Yes. 21 Q Okay. When the defendant is issued a 22 summons in such a case, is that part of your report? 23 MR. FETTEN: Objection to the form. 24 Q Do you, like, consider that? 25 A Sure. 0137 1 Q Okay. How does whether or not the 2 defendant was issued a summons impact your opinions? 3 A If there is testimony in, for example, an 4 intersection accident that's controlled by a traffic 5 signal and you have witnesses that testify that one 6 party went through a red light and the other party 7 had the green light, a summons would be issued. 8 That would be considered to determine who had the 9 traffic -- do I need to slow down? 10 Q No. I am listening. I am listening. 11 A That testimony can be considered to determine 12 who had the traffic signal right away. So if a 13 summons was issued and the officer based it upon 14 eyewitness testimony, that would be a factor that 15 would be considered. 16 Q None of the officers that were involved 17 in responding to this accident witnessed the 18 accident, correct? 19 A That's correct. 20 Q And the diagram that is on the police 21 report is not an accurate depiction, is it? 22 MR. FETTEN: Objection to form. 23 A It is not drawn to scale. 24 Q Are you aware that at some point after 25 the accident DaCruz got the police report and went 0138 1 to the police station to voice his disagreement with 2 the diagram on the police report? Are you aware of 3 that? 4 A Yes. 5 Q And what was he told after he did that 6 by the police? 7 A I don't know. I don't recall what he was 8 told. 9 Q Are you aware that he was told that it 10 didn't matter because it says it is not drawn to 11 scale? 12 A No, I am not aware of that. 13 Q Okay. Do you have an opinion as to 14 where you believe Cammarano was going at the time of 15 the accident? 16 A I know he had two, I believe it was 17 granddaughter's or somebody in the vehicle with him. 18 I would have to look again. He had two passengers 19 and he was -- I don't have a destination for him. 20 Q Do you have an opinion as to where 21 DaCruz was going at the time of the accident? Where 22 he was headed? 23 A His testimony is that he was headed back to 24 his driveway to go into his house. That was his 25 intention if he wasn't struck was to go back up the 0139 1 driveway into his dwelling. 2 Q Do you know where in his deposition he 3 said that? 4 MR. CAREY: Cammarano or DaCruz? 5 MR. CLARK: The last question, DaCruz. 6 Q I know you are looking at your report, 7 but I am going to ask you for the page in his 8 deposition transcript, if you can find it, where 9 DaCruz said that he was on his way up the driveway? 10 A Yeah. I was first looking in the report to 11 see if I put it into the report. 12 Q Let's go on the record now. So we've 13 been waiting for some time now for an answer to the 14 pending question. Can you just read back the 15 pending question? 16 MR. FETTEN: He knows the question, so 17 go ahead. 18 Q Do you have an answer? 19 A No, I haven't found it yet. 20 Q You are still reading. We are on the 21 record. Let us know when you find the part of his 22 deposition testimony that says at the time of the 23 accident DaCruz was on his way up to proceed up to 24 the driveway. 25 A I didn't say to proceed up. I said it was his 0140 1 intention to walk around the front of the vans, down 2 the side of the vans and back up the driveway the 3 way that he walked from the house to where he left 4 his daughter as he watched her, as he said, walk to 5 school. 6 Q All right. So when you can find the 7 part of his deposition that indicates that that was 8 his intention to walk around the vans and up the 9 driveway at the time of the accident. 10 A On page 12 and 13 he indicates that he was 11 walking his daughter to school and that it was 12 raining out. He walked her out because there were 13 no sidewalks. He just -- he left just to pass the 14 front of the cars because there's no -- I didn't 15 want her to walk on the street by herself. And then 16 at some point she just goes through the side yards. 17 On the day of the accident -- the question 18 was: On the day of the accident was Francielle 19 walking on the street or was she walking on the 20 grass? 21 I passed with her by the cars so we were 22 following the curb because there is no sidewalks. 23 That's right. 24 So on that day he is indicating he walked 25 from his house down along the side of the vehicles, 0141 1 stopped to watch her go to school. 2 Then he was asked was he going anywhere that 3 day. Was he planning on going anywhere in his vans. 4 No, he was not, because he was gonna be home that 5 day. 6 Q Okay. Anything else in response to the 7 pending question? 8 A No. Not that I found at this point. 9 Q So do you have an opinion as to where 10 DaCruz was walking to at the time of the accident? 11 A Yes. He was walking from a position in front 12 of the lead van near the curb out across, completely 13 across the front of that parked van and then out 14 into the roadway into the westbound travel lanes. 15 Q Heading to where though? Where was he 16 going, based on your opinion? 17 A Heading towards back -- right now from what I 18 am reading, coming around the vehicle, going down 19 and likely walking back up the driveway to his house 20 because he wasn't going to utilize the van at that 21 time. 22 Q I asked you what your basis for that 23 was, and you said it was in the deposition of Mr. 24 DaCruz, and you answered that question and pointed 25 to the part that on page 12 carrying over to 13 that 0142 1 talked about him walking his daughter along the curb 2 on the way to school. 3 A Along the side of the vans, I believe I said. 4 Q Well, he says -- the question is were 5 you planning on -- question on page 12, line 20. 6 Were you planning on walking Francielle all the way 7 to school that morning? 8 Answer: No. What I do is I walk her out 9 because there is no sidewalk. I just -- I left just 10 to pass in front of the cars because there is no -- 11 I didn't want her to walk on the street by herself. 12 Then at some point she just goes through the side 13 yards. 14 Question: On the day of the accident was 15 Francielle walking in the street or was she walking 16 in the grass? 17 Answer: I passed with her by the cars so she 18 would follow the curb because there is no sidewalks. 19 That's right. 20 Now I am not quoting anymore. I am saying 21 that that is what you are referring to in answering 22 the question as to what your basis is, that at the 23 time of the impact he was on his way walking the 24 outside of the vans up the driveway. What is your 25 basis for saying that? 0143 1 MR. FETTEN: Objection to the form. 2 Q Is it the part that I just read or is 3 it something else? 4 A It is part of that and I believe there is 5 something else that they -- maybe even his daughter 6 said they didn't want to walk on the grass because 7 it was wet and slippery. They walked along the 8 driveway, along the side of the vans. He wasn't 9 intending to use the van. There is independent 10 witness that sees him walking from the curb back 11 towards the left side of the van and into the 12 roadway. 13 Q You have an opinion that he intended to 14 walk into the street around the curbs and up the 15 driveway. 16 MR. FETTEN: Objection to the form. 17 Q What is your basis for that? 18 A The basis is that from the testimony that I 19 have reviewed that they were not walking on the 20 grass because it was wet, so they were walking in 21 the roadway and that he wasn't going to use the vans 22 so he was going back the same way that he came along 23 the left side of the vans and up the driveway to the 24 house. 25 Q And you said your basis for that is the 0144 1 testimony that you reviewed. What testimony? 2 A The testimony from Mr. DaCruz and his 3 daughter. 4 Q Well, you have exhausted the part of 5 DaCruz's deposition testimony which you believe he 6 says that. 7 MR. FETTEN: Objection to the form. 8 Q Where in Francielle's deposition 9 testimony does it state or indicate that she saw her 10 father walking into the street, heading and 11 intending to go up the driveway? Where in 12 Francielle's deposition testimony does it say that? 13 A She does not say that. She says they were not 14 walking on the grass because the grass was wet, so 15 they -- and he says that they were walking along the 16 side of the vehicles and then he stopped and he 17 watched her walk down the curb, then he was not 18 intending to use the car. So if he was walking back 19 out into the street into the travel lane and not 20 going to get into his vans, then he was going to 21 walk back down up the driveway into the house. 22 Q She doesn't say that, that he was going 23 to walk in the street, up the driveway to get in the 24 house, does she? 25 A No. 0145 1 Q He doesn't say that either, does he? 2 A No. 3 MR. FETTEN: Objection to the form. 4 Q In fact, there is no witness that says 5 Filomen DaCruz was intending to walk in the street, 6 up the street and up the driveway. No witness says 7 that, do they? 8 MR. FETTEN: Objection to the form. 9 A No. There is a witness who says he was 10 standing by the curb, said good-bye to his daughter 11 and then started walking across the front of the van 12 into the roadway. 13 Q Well, doesn't that witness say she 14 thought he was going to get in his car? That she 15 had speculated, I thought he was going to get into 16 his car? 17 A Regardless if he was gonna get into his car or 18 walk down the side of the car and go up the 19 driveway, his travel path would be the same. She 20 speculated that he was going to get into the van. 21 He said he wasn't going to use the van. 22 Q In fact, he said that he was going to 23 stand adjacent to the curb to watch his daughter 24 until she arrived at school half a block away; isn't 25 that right? Isn't that what he said? 0146 1 A Yes. Yes. 2 Q And didn't the daughter also support 3 that, that her father would always watch her in that 4 area? Watch until she went up to school and then -- 5 A Yes. Standing by the curb and he watched her. 6 The last time he was seen by the witness he was 7 walking from the curb across the front of the parked 8 van to the left corner. So he was either going to 9 get in the van, as she speculated, or walk back down 10 the side of the vans to go to the house because he 11 said he wasn't going to use the van. If he was not 12 going to do that, then if he was standing by the 13 curb and it was his intention to go back to his 14 house and not walk out in the street, he could have 15 done that by just walking up the grass to the house. 16 He puts himself by the curb. So does his daughter 17 watching her walk away. 18 Q Correct. 19 A The last time he is seen before impact is 20 coming out from the curb towards the westbound 21 travel lane. And it is either to go in his vehicle 22 or up his driveway back to the house. 23 Q What if it is to stand in front as -- 24 what if it is to stand in front of the van to watch 25 his daughter on her way to school to walk the half 0147 1 block so she is okay? 2 A Can he not do that from the curb? He is 3 standing on the curb? He is in the zone of safety. 4 He could watch her from there. That's number one. 5 Number two, you have a witness that said he is 6 walking, he is not standing by the side of the 7 vehicle watching his daughter now. He is walking 8 out into the roadway across the front of his parked 9 van. 10 Q Wasn't her testimony that he is walking 11 from the curb area or walking from the grass area 12 that, he kissed his daughter good-bye and then 13 walked towards the street? Wasn't that her 14 testimony? 15 A That's her testimony. 16 Q And it was also her testimony that she 17 did not actually see the impact, correct? 18 A She didn't actually see the impact. That is 19 correct. She saw him go up in the air. She sees 20 him start his movement from the curb as she is 21 approaching. And as he gets to the front of the van 22 she looks at the approaching vehicle, and the next 23 thing she sees is him up in the air. 24 Q What if he is going to walk from the 25 curb, grass area, into the street in the area that 0148 1 you put an X on Emolo-6, about 10 feet in front of 2 the van? What if he is going to do that? 3 A I didn't put an X 10 feet in front of the van. 4 I put an X here. You used the hypothetical if he 5 was 10 feet in front of the van. All the testimony 6 is he is standing in front of the van, next to the 7 van and next to the curb. You've got him now 8 walking 10 feet down the roadway and 6 feet out into 9 the travel lane and stopping to see his daughter? 10 There would be no reason for that. He can see her 11 here. He kissed her good-bye. He's got a clear -- 12 this is a straight, level roadway. He can see her 13 walk. The only reason for leaving the safety of the 14 curb in the front of the van is to walk around the 15 front because he is either going into the van or 16 down the roadway into the driveway. He doesn't need 17 to move from here to here to see his daughter. 18 Q What if he doesn't want to stand on the 19 incline, on the grass on a wet day? Instead he 20 wants to stand on the street and watch her go down? 21 A He was standing in the street next to the curb 22 in the street and then he walked to the front of the 23 van and into the roadway. 24 Q But why is it that you speculate or 25 think that he was continuing to walk into the street 0149 1 to the driveway as opposed to walking into the 2 street and standing near the front of the van to 3 watch his daughter go to school? 4 MR. FETTEN: Objection to the form. 5 A Because he was laying on the front of the van. 6 That was testified by the driver of the vehicle, and 7 you have an independent witness who is approaching 8 the other way sees him walking towards the front of 9 the van. And soon as she takes her eyes off of him 10 to move forward, she sees the pedestrian up in the 11 air. It is instantaneous. 12 Q The same independent witness who also 13 said he was clueless and didn't even know he hit 14 someone, right? 15 A The same witness that said that, yeah, because 16 she interprets that statement, what happened?, as 17 being clueless. Have you ever seen anybody walk 18 down the street and slip-and-fall and say, oh, my 19 God. What happened? They knew they slipped and 20 fell but they didn't know why they slipped and fell, 21 so they are asking what happened. That doesn't mean 22 I am clueless, I don't know that I slipped and fell. 23 Instead of that, you are taking the testimony of Mr. 24 DaCruz who puts himself by the curb 3 feet in front 25 of his car, 10 feet in front of his car standing 0150 1 with his back to traffic. He's got six different 2 stories of how this happened. 3 Q Are you pretty good at math or not that 4 good at math? 5 A I am decent at math, yeah. Why? 6 Q Okay. What would three meters 7 translate to in feet? 8 A I'd have to do the calculations for meters to 9 feet, but a meter is three point some feet or 10 something. I have to -- I couldn't tell you. Three 11 meters would be approximately 10 feet. Nine plus 12 feet, yeah. Off the record. 13 (Whereupon, a brief discussion is held 14 off the record.) 15 Q Who was present at the staging that 16 took place on the video which has been marked as 5F? 17 MR. FETTEN: Objection to the phrase 18 staging. 19 A In our visibility testing it was myself and 20 Bruce Kuipers. 21 Q Was anyone else there? 22 A Yes. Mr. Cammarano brought a surrogate 23 vehicle to the one he was driving at the time, plus 24 two surrogate vans in addition to that. The 25 original attorney, Wendy Wieback was present, and I 0151 1 believe the witness came, also. She was present at 2 the scene. 3 Q Your opinion is that the victim walked 4 out in front of the travel lane or walked out in 5 front of the roadway and got struck and it is his 6 fault, right? 7 MR. FETTEN: Objection to the form. 8 The victim was driving the vehicle. Your client was 9 the pedestrian, Mr. DaCruz, right? I object to the 10 form. 11 A It is my opinion that Mr. DaCruz had walked 12 from the curb across the front of his lead van out 13 into the westbound travel lane. 14 Q When did you arrive at that opinion? 15 What is the date of your report here? Let's see. 16 A December 14, 2007. 17 Q When did you arrive at that opinion 18 that you just stated? 19 A Just prior to that. 20 Q Okay. Like what would just prior be? 21 A Two days, three days, a week. I don't know. 22 Q Got it. 23 MR. CLARK: We are not taking Kuiper's 24 testimony, right, because he is not testifying in 25 trial? I know I put that in a letter and stuff, but 0152 1 I guess, I don't know, I feel like I need to ask 2 then that Kuiper isn't testifying. It is going to 3 be Mr. Emolo who is going to be proffered to 4 testify? All right. 5 Q Did Mr. Cammarano stop immediately 6 after the accident or did he continue on or 7 something? 8 MR. FETTEN: Objection to the form. 9 A I believe he stopped further down the roadway. 10 Q For how long before he proceeded on? 11 A How long was he stopped before he proceeded? 12 Q Yeah. 13 A I have no idea how long he was stopped before 14 he proceeded. You mean left the scene after the 15 police completed their investigation? 16 Q Now, didn't he stop then leave and come 17 back or something? 18 A I am not aware of that, no. 19 Q Who is the guy in the video who is 20 posing as Mr. DaCruz? 21 A The one walking out from in front of the two 22 vans, that was me. 23 Q On page seven of Emolo-2, seven is in 24 the lower right-hand corner, it says in the 25 right-hand caption to photo nine: Pedestrian can be 0153 1 seen approaching the van. The claimant came out 2 from in front of the van to go in the opposite 3 direction to enter the van. You see that here? And 4 there is the picture? 5 A Yes. 6 Q Is that a photograph of Mr. DaCruz in 7 that picture? 8 A I have no idea. We didn't take these photos. 9 Q Okay. 10 A It shows a pedestrian walking along the side 11 of the van, but I have no idea who that is. 12 Q What year was the surrogate Suburban? 13 A Which surrogate suburban? The one that they 14 used? 15 Q Yeah. The one they used during their 16 staging. 17 MR. FETTEN: You mean the visibility 18 testing? 19 MR. CLARK: No. The staging. 20 MR. FETTEN: I object to the form. 21 A The vehicle we utilized as a surrogate to the 22 Cammarano vehicle for our visibility testing was a 23 2007 Suburban. 24 Q Did that have all the same dimensions 25 as the Suburban in the accident? 0154 1 A Pretty much so. We have a comparison of the 2 two vehicles and the widths were pretty much the 3 same. Wheelbase pretty much the same. Overall 4 length the same. Height the same. There may have 5 been some -- you know, I didn't measure every 6 portion of the vehicle. General measurements, 7 width, height and so forth, wheelbase front-over 8 things are the same. 9 Q Is that you in the photo on the top of 10 page six of Emolo-1? 11 A Yes, it is. 12 Q Were the clients home when you guys 13 conducted this staging operation? 14 MR. FETTEN: Objection to the form. 15 A We were not aware if they were home. There 16 were no vans out in front of the house, that is why 17 we brought surrogates. 18 Q How do you know -- did you park the 19 vans in the same area where they were parked at the 20 time of the accident? 21 A We utilized the police accident scene photos 22 to t locate the vans as close as possible to their 23 position at the time of the incident. 24 Q And in the photo on the top of page six 25 of Emolo-1 why are you standing where you are 0155 1 depicted to be standing there? Why are you there? 2 A That is the first -- I believe that was an 3 estimate that was given that he was in that area 4 approximately 10 feet from the roadway, from the 5 front of the van. 6 Q Taking a look at Emolo-6 and the X that 7 you put on there, if the X -- if he was actually 8 standing 10 feet ahead of that X in the 9 hypothetical -- 10 A Again parallel with the curb? Same distance 11 off the curb, just 10 feet over? 12 Q Correct. -- and was struck by the 13 Chevy Suburban, would the Suburban have to swerve to 14 let him in that location? 15 MR. FETTEN: Objection to the form. 16 A The Suburban would have had to move or been 17 steered to the right side of the roadway in order to 18 make contact. 19 Q Could that have been a slight steer or 20 it would have to be a real pronounced steer in that 21 configuration? 22 A If it is 10 feet away and he is in the 23 position traveling down the center of the lane and I 24 moved the pedestrian there, it would be more severe 25 than just gradual. He's got to make that movement 0156 1 in 10 feet. 2 Q But would it have to be a great steer 3 to the right or it could be a slight steer in the 4 angle that he is driving? 5 MR. FETTEN: Objection to the form. 6 A It would be more of a sharp steer to the 7 right. Remember, he is not gonna start steering to 8 the right until he passes the van. He has less than 9 10 feet then to go from this position over to where, 10 hypothetically, Mr. DaCruz would have been standing. 11 Q It would depend on the angle though, 12 right? It would depend on the angle that he is 13 driving? 14 MR. FETTEN: Objection to the form. 15 A Are you asking could he have been driving down 16 the road not traveling straight down his travel lane 17 as he is passing two parked vans that he steered -- 18 he is already steering to the right or left? Is 19 that the question? 20 Q Yeah. Sort of driving at an angle. 21 A As he is where? Hypothetically, where is he 22 when he is driving on an angle? 23 Q Well, let's say there is a van here, a 24 van here, a pedestrian here, and he is kind of like, 25 you know, 10 feet ahead and driving sort of on an 0157 1 angle. When does he start his angle? 2 A When he passes he is here and he is starting 3 on an angle now? 4 Q Yeah. Pretty much something like that. 5 A So that he is gonna almost, if not hit but 6 almost hit two parked vehicles that he can see for 7 several hundred feet before he gets there? 8 Q No. Like this. Watch. He is here 9 driving like at an angle like this. So what I am 10 saying -- 11 A Put it on the ground and do that because I 12 think you just went over that piece of paper. 13 Q I probably did. 14 MR. FETTEN: Over the front corner of 15 the front van as demonstrated here by counsel. 16 A Yeah. If not hit it with your front bumpers 17 the mirrors would have slapped together, you got it 18 so close. You got mirrors sticking out of both 19 vehicles. 20 Q How about like this, if I go like this? 21 A You know what? You could do -- you could 22 stage it like they did in that photograph where they 23 put the vehicle on a real severe angle and he kind 24 of leaned out into the roadway. That would work. 25 But would he be steering at an angle as he is 0158 1 traveling straight down the roadway? Is this -- 2 wouldn't that be obvious to the opposing vehicle 3 operator who said he was coming straight the entire 4 time? 5 Q Have you looked at any other videos 6 other than the one that we marked as an exhibit here 7 today? 8 A In my review of this file, no. 9 Q You ever been in a situation where you 10 are driving a car, say you are coming down a 11 residential street where it is tight, say there is a 12 car parked on both sides, there is oncoming traffic. 13 Can you kind of envision? 14 A Probably, yeah. Probably happen. Probably 15 happens to all of us. 16 Q Exactly. What do you usually do when 17 you encounter that situation? 18 A We are now going down a residential roadway 19 now. We have vehicles parked on both sides of the 20 roadway and an opposing vehicle? 21 Q Both sides an opposing. 22 A You are adding more than one into the mix 23 here. 24 Q It would be similar to this but you got 25 two, a parked vehicle on the other side, you know, 0159 1 so you have a vehicle is driving and there is parked 2 vehicles on the right side, there is two vehicles on 3 the right side similar to this case and there is 4 open space up front, an oncoming vehicle. It is a 5 tight squeeze? 6 A Parked vehicles all along both sides, not room 7 for someone to stop and let one guy go through? 8 Q No, there is room. It is the latter 9 where there is room for one guy to stop and let the 10 other guy drive through. 11 A Typically what I would see in that 12 hypothetical where there is parked vehicles on both 13 sides, usually one of them yields to the other. 14 Q Okay. How about in the situation where 15 maybe there is a parked vehicle only on one side but 16 for whatever reason it is still a tight squeeze? 17 Have you -- -- the same idea being that there is a 18 tight squeeze but there is only vehicles on the one 19 side. 20 A So we are talking about a similar situation 21 where there is vehicles parked on one side and two 22 opposing vehicles and you're suggesting it is a 23 narrow roadway. 24 Q Tight squeeze, yes. 25 A Which would not be the case here. This is a 0160 1 30-foot-wide roadway, three vehicles at 6 foot each 2 would still leave 12 feet. 3 Q But assuming that it is a tight 4 squeeze. I understand -- 5 A Assuming the roadway is not as wide as this. 6 A little bit narrower than this where you would have 7 to -- what I would believe most people would do 8 would be to slow down as they pass each other. 9 Q And if it was a squeeze like the other 10 hypothetical we talked about with cars on both 11 sides, that makes it a squeeze, the prudent thing 12 there would be for one car to perhaps slow or stop 13 and yield to the other so they can pass safely? 14 MR. CAREY: Objection to prudent. You 15 can answer. 16 A Most times I come across that situation, yes, 17 either I would yield or the opposing vehicle would 18 yield. Again, understand this is not a narrow 19 roadway. This is a typical residential roadway for 20 a 25-mile-an-hour speed limit. And, for example, 21 you have 18 feet left over or 6 foot -- 18 of it 22 used, you still have 12 more feet. You are going 23 down a highway where there is three lanes, they are 24 each 12 foot wide, everybody is driving highway 25 speed passing other vehicles. The fact they are 0161 1 only 12 foot lanes isn't stopping somebody from 2 driving 75 miles an hour on the New Jersey Turnpike. 3 So in our instance here there would be no reason to 4 have to slow down to the point where I would have to 5 yield to the other vehicle to pass. But even with 6 that being said, I believe the witness said she did 7 slow down and she did yield to Cammarano. She was 8 waiting for him to pass safely. 9 Q I don't have any other questions. 10 MR. CLARK: I would like the exhibits. 11 We have marked them and I am gonna go through them. 12 We have marked Emolo-1. I would like that in clean, 13 clear, color copies. We have marked Emolo-2. I 14 would like that in clean, clear, color copies. 15 Emolo-3 can be black and white. Emolo-4 can be 16 black and white. Emolo-5 I do not need at all. 17 Emolo-6 is mine, so I am going to keep it. So if 18 someone else wants a copy, they should say so. 19 Maybe they just want a copy of the part that the X 20 was put on it. And then Emolo-5A I just need a 21 black and white copy. Emolo-5B can be black and 22 white. Emolo-5C can be black and white. Emolo-5D 23 can be black and white. Emolo-5E can be black and 24 white. Emolo-5F I just need a photocopy of the 25 disc. And Emolo-5G I just need a regular copy. 0162 1 (Whereupon, the witness is excused.) 2 (Whereupon, the deposition is concluded 3 at 3:35 p.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0163 1 C E R T I F I C A T E 2 3 I, LAURA WESTRA, a Certified Court 4 Reporter and Notary Public of the State of New 5 Jersey, certify that the foregoing is a true and 6 accurate transcript of the deposition of said 7 witness who was first duly sworn by me, on the date 8 and place hereinbefore set forth. 9 I FURTHER CERTIFY that I am neither attorney 10 nor counsel for, nor related to or employed by, any 11 of the parties to the above action, and further that 12 I am not a relative or employee of any attorney or 13 counsel employed in this action, nor am I 14 financially interested in this case. 15 16 17 18 19 20 __________________________________ 21 LAURA WESTRA, C.C.R. 22 LICENSE NO. XIO1734 23 24 25