STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
_____________________________
SUGAR CANE GROWERS )
COOPERATIVE OF FLORIDA, a )
Florida Agricultural )
Cooperative Marketing )
Association, ROTH FARMS, INC,)
AND WEDGWORTH FARMS INC., )
and ) Case Nos. 92-3038
FLORIDA SUGAR CANE LEAGUE, ) 92-3039
INC., UNITED STATES SUGAR ) 92-3040
CORPORATION; and NEW HOPE )
SOUTH, INC., )
and )
FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION, LEWIS POPE FARMS)
W.E. SCHLECHTER & SONS, INC.,)
and HUNDLEY FARMS, INC., )
Petitioners, )
vs. )
SOUTH FLORIDA WATER )
MANAGEMENT DISTRICT, an )
Agency of the State of )
Florida. )
Respondent, )
and )
MICCOSUKEE TRIBE OF INDIANS )
OF FLORIDA the UNITED )
STATES OF AMERICA, and )
FLORIDA DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
the FLORIDA WILDLIFE )
FEDERATION, the FLORIDA )
AUDUBON SOCIETY, and )
the SIERRA CLUB, )
_________Intervenors.________)
DEPOSITION OF THOMAS M. MISSIMER
Suite 1403
250 Australian Avenue, South
West Palm Beach, Florida
November 2, 1992
9:00 o'clock p.m.
BALLOWE REPORTING SERVICE (305) 761-1622
APPEARANCES:
HOPPING BOYD GREEN & SAMS
BY: Gary V. Perko, ESQ.,
Appearing on behalf of the Sugar Cane Growers
Cooperative.
PEEPLES, EARL & BLANK
BY: MARK T. KOBELINSKI, ESQ.,
Appearing on behalf of the United States Sugar Cane
League, Inc.
UNITED STATES ATTORNEY
BY: THOMAS A.W. FITZGERALD, Assistant United States
Attorney.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
BY: RUTH CLEMENTS, ESQ.
Appearing on behalf of the South Florida Water
Management District.
ALSO PRESENT:
Robert Johnson,
Everglades National Park
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1 The deposition of Thomas C. Missimer, a
2 witness of lawful age, taken for the purpose of discovery
3 and for use as evidence in the above-styled cause,
4 pursuant to notice, before Ellen Dionisio, Shorthand
5 Reporter and Notary Public in and for the State of Florida
6 at Large, at the time and place aforesaid.
7 -----------------
8 I N D E X
9 WITNESS DIRECT CROSS
10 THOMAS MISSIMER
(by Mr. Fitzgerald) 4
11 (by Mr. Perko) 68
12
E X H I B I T S
13 UNITED STATES FOR IDENTIFICATION
14 No. 1 Page 4
No. 2 Page 10
15 No. 3 Page 27
No. 4 Page 59
16
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19
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21
22
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25
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1 THEREUPON:
2 THOMAS M. MISSIMER
3 was called as a witness by the United States Attorney's
4 Office and, having been first duly sworn, was examined and
5 testified as follows:
6 DIRECT EXAMINATION.
7 MR. FITZGERALD: Good morning, Mr. Missimer.
8 I'm Assistant US Attorney, Tom Fitzgerald. With me
9 is Bob Johnson of the Everglades National Park who
10 you may know.
11 Would everyone else like to state their
12 appearances.
13 MS. CLEMENTS: Ruth Clements with the South
14 Florida Water Management District.
15 MR. KOBELINSKI: Mark Kobelinski with
16 Peeples, Earl & Blank representing the United
17 States Sugar Corporation, New Hope South, Inc., and
18 Florida Sugar Cane League.
19 MR. PERKO: Gary Perko, of Hopping Boyd Green
20 & Sams here with the Sugar Cane Growers Cooperative
21 Of Florida, Roth Farms, Inc., and Wedgworth Farms,
22 Inc.
23 BY MR. FITZGERALD:
24 Q Mr. Missimer, for the court reporter and the
25 record, could you spell your last name and give us your
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1 business address.
2 A My name is Thomas M. Missimer,
3 M-I-S-S-I-M-E-R. My business address is 428 Pine Island
4 Road Southwest, Cape Coral, Florida 33991.
5 (Whereupon, United States' Exhibit No. 1 was
6 marked for Identification by the Court Reporter.)
7 Q Mr. Missimer, if I could ask you to look at
8 what has been marked as Exhibit 1, copies of which have
9 been provided by counsel captioned, "NOTICE OF TAKING
10 DEPOSITION-DUCES TECUM."
11 Since you are here today, I presume you have
12 seen this before?
13 A Yes, I have.
14 Q Did you have an opportunity to review the
15 enclosure which identifies the documents and identifies
16 items that should have been provided in advance in
17 connection with your testimony, specifically page five
18 which says "DOCUMENTS TO BE PRODUCED" and page six?
19 A Yes, I read that and discussed it with
20 counsel.
21 Q Did you cause the records of your firm to be
22 searched to provide all documents that meet requirements
23 of those seven paragraphs?
24 MR. KOBELINSKI: Object to the form of the
25 question. "Of his firm" is this directed to the
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1 Missimer & Associates or to the witness?
2 MR. FITZGERALD: It's directed to the
3 witness.
4 MR. KOBELINSKI: Then, I am objecting to the
5 question to the extent that it is asking whether or
6 not he searched his corporate records as opposed to
7 his own.
8 BY MR. FITZGERALD:
9 Q What's your position at Missimer &
10 Associates?
11 A I'm a principal hydrogeologist and
12 vice-chairman.
13 Q Who is Chairman of the Board?
14 A Robert Fletcher.
15 Q In your position as vice-chairman of the
16 board, do you have any ownership interest in the firm?
17 A Missimer & Associates which is now the
18 holding company, ViroGroup Incorporated, is a publicly
19 owned corporation. I am one of the numerous shareholders.
20 Q What is the extent of your shareholdings in
21 the corporation?
22 A I have roughly two hundred seven thousand
23 shares of common stock in the corporation.
24 Q What ownership interest does that represent
25 in portion to the outstanding shares?
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1 A There's about three point two million shares
2 outstanding. Somewhere in excess of six or seven percent,
3 I believe, without a calculator.
4 Q Do you have outside shareholders or are
5 shares held primarily by employees or people that work
6 there?
7 A The corporation trades on the NY Stock
8 Exchange; so, there are numerous shareholders.
9 Q Are they preferred stock categories or just
10 common stock?
11 A Just common stock.
12 Q On a day-to-day basis, what is your role at
13 Missimer & Associates?
14 A I function as the principal hydrogeologist
15 and chief scientist. I sit on the board for policy
16 decisions.
17 Q In that capacity, are there any files of
18 Missimer & Associates to which you do not have access?
19 A Yes. We have 18 offices around the country.
20 I don't have access to every bit of the filed material in
21 the company.
22 Q With respect to the offices in South Florida,
23 what's your access to the files and records of those
24 offices?
25 A I have access to all the files in the offices
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1 in South Florida.
2 Q Do you maintain personal files separate and
3 apart from the business records and files on projects in
4 which you are employed through Missimer & Associates?
5 A Only on active projects; on closed projects,
6 I do not maintain personal files.
7 Q On the active projects where you maintain
8 such files, where, physically, do you maintain them?
9 A In the Cape Coral office of Missimer &
10 Associates.
11 Q Do others within your firm in the Cape Coral
12 office and in South Florida also have access to your files
13 on a as-needed basis?
14 A Yes.
15 Q With regard to the seven categories of
16 documents to be produced, do you have personal documents
17 apart from those stored and maintained in the care,
18 custody, and control of Missimer & Associates?
19 MR. KOBELINSKI: Object to the form of the
20 question.
21 A To a certain degree, yes. I have certain
22 documents that I keep regarding my own publications about
23 specific issues that I maintain separately from the
24 corporate file, but, usually, in most cases the corporate
25 files are complete. What I have are duplications.
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1 Q (BY MR. FITZGERALD) Now, the documents with
2 regard to your personal publications, are any of those
3 within the ambit of the seven paragraphs described in the
4 documents to be produced?
5 A Yes, to a certain degree.
6 Q Which categories?
7 A Number six, it says presentations. I made
8 presentations, and, I believe, that I provided a list of
9 everything in my resume.
10 Q Those are presentations on the subject of
11 wellfield withdrawals --
12 A Yes.
13 Q -- in South Florida or elsewhere?
14 A Yes.
15 Q With regard to the items that are in your
16 personal records, are any of those not identified in your
17 resume as actual publications or presentations you have
18 given?
19 A No.
20 Q Are any of the documents that would otherwise
21 be responsive to number six in the records of Missimer &
22 Associates - Cape Coral office, is it?
23 A Could you ask that question again please.
24 Q You said that some of the records that are
25 responsive to six are in your personal records, I assume
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1 at home and elsewhere?
2 A Yes.
3 Q With regard to those documents that would
4 respond to six that are not part of your personal records,
5 where would they be?
6 A In the Cape Coral office or the Miami office
7 or West Palm or Palm Beach Gardens.
8 Q Of the ones that would be in those four
9 locations not your personal home or whatever, are those
10 also identified in your list of publications and in your
11 resume?
12 A Everything that I have done - worked on - is
13 enclosed in my resume. We have responded with all the
14 other projects that you have requested via Mr. Perko's
15 presentations to you and already been entered into the
16 record in the past.
17 Q Are you familiar with what Mr. Horvath
18 provided?
19 A Mr. Horvath had the same - I reviewed what he
20 was requested to do also, and he asked me if I had worked
21 on any projects in the past. Therefore, we provided in
22 response to your previous inquiry.
23 Q In addition to looking through your personal
24 records, did you also look through the records of Missimer
25 & Associates' South Florida locations to find any
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1 documents responsive to this?
2 A I did the best I could to look through all
3 the records that I had access to in response to this, I
4 believe. If I missed anything, it was inadvertent.
5 Q At the business locations, did you direct
6 others to do that, or did you conduct that review or
7 search personally?
8 A I conducted the search personally via the
9 computer records. We have every project we have ever
10 done. I went back and provided all the records that we
11 had.
12 Q You were aware, were you not, that the
13 subject matter for which you have been designated as a
14 witness in this case differed from the subject matter of
15 Mr. Horvath. So, the two areas are not necessarily
16 co-equal that you have other areas of designated
17 testimony?
18 A I know that they are not exactly the same,
19 that is correct.
20 Q So the documents would not necessarily be the
21 same. You understood that, didn't you?
22 A Yes.
23 MR. FITZGERALD: Could you mark this.
24 (Whereupon, United States's Exhibit No. 2 was
25 marked for identification by the Court Reporter.)
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1 Q (BY MR. FITZGERALD) If I can invite your
2 attention to Exhibit 2 for the purposes of the deposition
3 which is a Curriculum Vitae of Thomas M. Missimer, P.G. If
4 you can take a minute and look through that.
5 Does it look familiar?
6 A Yes.
7 Q Is that your most current, up-to-date
8 Curriculum Vitae?
9 A Yes, minus just a couple of recent
10 publications.
11 Q What would they be?
12 A I believe, I just have a manuscript that just
13 went out on the subject of consulting ethics and have
14 another manuscript that's in preparation on - I'm not
15 sure. It is sitting on my desk - which one it is.
16 I believe, at least one on consulting ethics.
17 Q Do you have the general subject?
18 A It's on an issue of ground work
19 contamination.
20 Q What is the contamination that you are
21 addressing?
22 A It's a general paper, a general environmental
23 program on methodology and superfund actions.
24 Q Is it keyed to the federal superfund or does
25 it take into account state superfund?
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1 A It's strictly federal superfund and
2 methodology under the act, and the National Contingency
3 Plan.
4 Q In looking at the NCP, did you key it to any
5 event in South Florida?
6 A No.
7 Q So it's a general survey?
8 A No, it's a case - a scenario that I was asked
9 to write about. It is a type of a case on what kind of
10 methodology or thought processes were used to evaluate a
11 site of mobile contaminates that in reality turns out not
12 to be able to be cleaned up within an economic or reality
13 range.
14 Q The other manuscript that's in preparation or
15 about to go into publication, who is that for?
16 A The Florida Chamber.
17 Q When do you expect that to be published?
18 A January.
19 Q Have you testified as an expert witness
20 before in any court proceeding, Mr. Missimer?
21 A Yes.
22 Q When was that?
23 A I testified about somewhere near 15 times
24 over the last 16 years.
25 Q Was that in Federal or State court?
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1 A Both.
2 Q With regard to Federal Court, can you recall
3 approximately how many times that would have been?
4 A I testified in Federal Court one time that I
5 was actually qualified in court.
6 Q As an expert?
7 A Correct.
8 Q What was the area of your expertise for the
9 purposes of that case?
10 A I was qualified in the areas of hydrogeology,
11 geology, and water quality.
12 Q Is that in the Southern District of Florida?
13 A Yes.
14 Q With regard to your State cases, what were
15 your areas of expertise? Were you designated as an expert
16 for those cases?
17 A Yes.
18 Q What was the area of expertise, if there was
19 a common thread?
20 A They were varied depending on the case in the
21 area.
22 Q Can you give me some examples of the various
23 areas?
24 A I've been qualified in the area of geology;
25 hydrogeology; hydrology; contamination hydrogeology;
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1 wellfield feasibility and design; environmental auditing;
2 dredge and till permitting; I think, water quality
3 monitoring.
4 Q When was the most recent of those?
5 A Let's see, about a month ago.
6 Q State court?
7 A Yes.
8 Q Have you been deposed before, Mr. Missimer?
9 A Yes.
10 Q As probably you've been told in the past, if
11 you want to take a break at any time, you get tired or
12 suddenly the time change and your stomach says - let me
13 know, and we can take a break.
14 If at any time I ask a question you don't
15 understand, just ask me to clarify it, and I will try to
16 do that if I can.
17 You have a Bachelor of Arts Degree from
18 Franklin and Marshall, in Pennsylvania?
19 A Yes.
20 Q You studied geology there?
21 A Yes.
22 Q When you took your Master's Degree at Florida
23 State, did you do a thesis?
24 A Yes.
25 Q What was the subject of your thesis?
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1 A The subject of the thesis was the
2 depositional history of Sanibel Island, Florida.
3 Q Up through that time, had you done any course
4 work or field work in the Everglades?
5 A No.
6 Q After completing your Master's Degree, at
7 some point, you began to amass credits for a Doctor Of
8 Philosophy at Rosenstiel School?
9 A Yes, I began work there January of last year.
10 Q How far along are you towards your doctorate?
11 A My course work will be completed this
12 semester. The only thing I have left is the dissertation.
13 I have roughly over half done.
14 Q Has your dissertation topic been selected as
15 yet?
16 A Yes.
17 Q What is the topic?
18 A The topic is the investigation of the Miocene
19 change from carbonates to plastics on the Florida
20 peninsula.
21 Q Do you think you can translate that for the
22 benefit of all the blank looks around the table?
23 A What I'm doing is essentially studying the
24 area from about 25 and-a-half million years ago, up to
25 five and-a-half million years ago in the South Florida
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1 platform from Lake Okeechobee south to the Keys. What
2 happened during that time period in terms of the sediments
3 and the ocean currents and sea levels.
4 Q When do you expect to complete your
5 dissertation and, ultimately, your qualifying exam?
6 A Either the end of next year or the first
7 semester of the year beyond that.
8 Q Who is your panel or faculty advisor?
9 A Doctor Robert Ginsburg.
10 Q After leaving school, after leaving the
11 University of Florida in '73, from whom did you first gain
12 work?
13 A I first worked for the United States
14 Geological Survey.
15 Q That was in Fort Myers?
16 A Correct.
17 Q What was the nature of your duties while you
18 were at the United States Geological Survey?
19 A I was a hydrogeologist specializing in ground
20 water and surface water with the USGS.
21 Q Were your efforts in that regard localized to
22 Fort Myers?
23 A No.
24 Q Where was the geographic extent of that
25 office's responsibility?
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1 A We worked in southwest Florida in Lee,
2 Hendry, and Collier counties.
3 Periodically, I was loaned out to do specific
4 projects for the East Coast depending on what was needed
5 at a given time.
6 Q During that period of time, did you have any
7 experience in remodeling water quality for South Florida?
8 A Remodeling water quality?
9 Q Water quality impact in South Florida?
10 A I did not do specifically water quality
11 modeling, no.
12 Q How about water quality?
13 A I did not do remodeling of quality modeling,
14 no.
15 Q What were you specifically doing during that
16 period?
17 A When I first began, I collected water
18 samples; I did aquifer testing; I conducted aquifer
19 performance tests; I did a lot of quality analysis and
20 collected the samples; analyzed the data.
21 I was at one time project manager of all
22 water resources investigation in Hendry County, Florida.
23 I had the responsibility as assistant hydrogeologist in
24 charge of the Fort Myers field office.
25 I published a number of publications that are
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1 published in my resume.
2 Q Was your work at that point primarily
3 directed at municipal wellfields?
4 A It was in a variety of subject areas. In the
5 US Geological Survey I collected data for almost anyone
6 including the Water Management District, the EPA, the park
7 service, anybody who needs an investigation done.
8 So, it was not just focused toward the
9 municipal wellfields.
10 Q During the period of time you were with them,
11 USGS, did you collect any data for the South Florida Water
12 Management District?
13 A Yes.
14 Q What type of data was that?
15 A Collected surface water quality data as part
16 of the regional nutrients investigation.
17 Q Where, physically, were you doing that?
18 A I collected the samples beginning on the
19 Loxahatchee River. I had a collection all along the north
20 side of the Loxahatchee River to the northern portion of
21 Lake Okeechobee.
22 Q Was that ever incorporated in any
23 publications that you are aware of?
24 A Yes.
25 Q What were those?
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1 A The nutrient information was collected for
2 all of South Florida and put out in a series of
3 publication, I think, from '75 through 1980, a series of
4 data reports. They were altered by someone.
5 Q Are those the technical publications that the
6 district puts out? Are you familiar with that?
7 A No, they were not.
8 Q Who published them?
9 A The United States Geological Survey.
10 Q They incorporated your data?
11 A Yes.
12 Q Did you ever have editorial opportunities to
13 review data prior to publication?
14 A No.
15 Q Did you review the documents after the
16 publication?
17 A I reviewed the data that we used in the
18 publication for accuracy. That was my sole impute into
19 those documents.
20 Q Did you find they accurately reflected your
21 opinion?
22 A Yes.
23 Q During that same period that you were with
24 USGS, did you do the data collection for the National
25 Parks Service?
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1 A Not that I can remember.
2 Q How about the United States Fish And Wildlife
3 Service or Department of Interior in general?
4 A Since the USGS is part of the Department of
5 Interior.
6 Q Bad question, let me rephrase that one.
7 Let's leave it to Fish and Wildlife Service then.
8 A No, not to my knowledge.
9 Q Where did you go upon terminating your
10 employment with USGS?
11 A I went to the University of Miami.
12 Q To Rosenstiel School?
13 A Yes.
14 Q What were you doing there?
15 A I was retained as a research associate doing
16 specific research projects for the university.
17 Q You were there for how long?
18 A Approximately one academic year, about nine
19 or ten months.
20 Q What type of projects were you working on?
21 A My specific project that I was retained to do
22 was to study the migrating mudbanks on the north coast of
23 South America, in the Amazon.
24 Q Were any of your projects related to South
25 Florida?
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1 A At that time, yes.
2 Q What were they?
3 A I worked as a consultant on the outside for
4 the National Conservation Organization to work on
5 comprehensive plans on groundwork hydrogeology for Sanibel
6 Island and a few other things.
7 Q Were any of your projects, during that
8 period, related to the Everglades?
9 A I didn't work specifically on the Everglades.
10 I was there for various instructional type things, but I
11 didn't do any specific research.
12 Q When you say, "instructional things"
13 seminars, classes, what type of thing?
14 A Since I was a hydrogeologist and there were
15 no other hydrogeologist there, I helped conduct seminars
16 for the graduate students and explained things in the
17 Everglades.
18 Q Okay. How did you prepare for those
19 sessions, those training sessions, if you hadn't worked in
20 the Everglades?
21 A I was very familiar with the literature in
22 the Everglades and familiar with what was being done
23 research wise from my friends in the US Geological Survey.
24 Q Let me step back for a second.
25 When you were working for the USGS, did you
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1 have any involvement in reviewing the operation of the
2 Central and South Florida Flood Control Project?
3 A The only thing that I did with regard to that
4 is, I knew generally where the canals were and structures
5 for collections, where the quality samples were that I was
6 asked to do.
7 Q So you occasionally had to collect samples
8 out of those facilities?
9 A Yes.
10 (There was an interruption on the phone.)
11 Q Back on the record. Other than collecting
12 some samples out of the flood control works, had you had
13 any involvement with the flood control project?
14 A No.
15 Q How about when you were at Rosenstiel;
16 thereafter, did any of your work address the operation of
17 the flood control projects?
18 A No.
19 Q How about the activities of the South Florida
20 Water Management District?
21 A Other than exchange research information, I
22 really didn't do anything for South Florida Water
23 Management District.
24 Q While you were with Rosenstiel, what research
25 information were you exchanging with the district?
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1 A I made inquires on some information regarding
2 deep wells in Lee and Collier County, I believe, at that
3 time.
4 Q Was that for your academic position or was
5 that outside consulting work?
6 A It was for the outside consulting work.
7 Q At that time, for whom were you working?
8 A Florida Conservation Foundation.
9 Q And that's the consulting work you were
10 referring to?
11 A Yes.
12 Q Were you doing any other consulting work?
13 A No.
14 Q Why did you leave Rosenstiel?
15 A I had the opportunity to start my own company
16 at that particular point and time. I decided I didn't
17 want to be poor anymore.
18 Q How did you come about actually establishing
19 it and locating the staff?
20 A I started the company and it was incorporated
21 in May of 1976 with myself and one person.
22 The reason we located in Cape Coral was we
23 had work there that was set up for us. I had marketed it
24 just immediately prior to that.
25 Q What type of work was that?
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1 A I believe, the first job I did was a study of
2 potential contamination from septic tanks for the City of
3 Sanibel and a number of other small jobs in Lee County,
4 Florida.
5 Q How large was the company when it started?
6 A There were two people.
7 Q Now how large is it?
8 A About 350 in 18 offices.
9 Q When did you go public?
10 A December 21, 1991.
11 Q Did you have an opportunity to review the
12 documents that Mr. Horvath was presenting in response to
13 his Subpoena Duces Tecum?
14 A I generally looked through the list of those
15 documents to see what they were and what they referred to,
16 yes.
17 Q Over the years that your firm has been in
18 existence since 1976, have you been employed by the
19 Florida Sugar Cane League in any capacity?
20 A Specifically the Florida Sugar Cane League -
21 other than my client here, no, the Sugar Cane League.
22 Q Do you understand the distinction between the
23 Florida Sugar Cane League and the Florida Sugar Cane
24 Growers Cooperative?
25 A Yes. They are a companion organization.
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1 MR. KOBELINSKI: I'll object to the extent
2 that you are asking a question that might be
3 outside this witness' knowledge.
4 MR. FITZGERALD: Well, he is capable of
5 saying it is outside his knowledge.
6 MR. KOBELINSKI: I'll object to the extent
7 that you're asking a legal question and asking for
8 a legal opinion.
9 Q (BY MR. FITZGERALD) Believe me, if I ask a
10 legal opinion and you feel incompetent to answer, feel
11 free to say that.
12 Who is your current employer for purposes of
13 the pending lawsuit?
14 A Hopping Boyd Green & Sams.
15 Q Do you understand whom they represent?
16 A I was retained by them. I have a general
17 understanding but not all the specific details because
18 that is a matter between them and their clients. They
19 retained me.
20 Q Did you have any role in assisting Mr.
21 Horvath in designing his seepage test for some properties
22 in the Everglades Agricultural Area?
23 A We discussed the matter and reviewed it in
24 general before it was conducted.
25 Q Did you review the reports and data that were
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1 derived from that test?
2 A Yes, I reviewed the reports that came out.
3 Q Within your organization at Cape Coral, do
4 you exercise a quality control review over the work that
5 is being done?
6 A I reviewed the reports within the clean water
7 area. I don't review all the contamination.
8 Q What, in your mind, is the difference between
9 the clean water area and the contamination area?
10 A The company is organized into hydrology
11 division and an environmental division. The hydrology
12 division handles the municipal water supply, wells, and
13 that type of thing.
14 The dirty water division is the environmental
15 assessments and remediation of contaminates.
16 Q When were you actually retained by Hopping
17 Boyd Green & Sams in this matter?
18 A Let's see. I'm not sure I recall the exact
19 thing we were involved - I don't remember, to tell you the
20 truth.
21 Q Do you have a contract with them?
22 A We have an affirmation of a contract, a
23 letter, that was recently sent to me by Mr. Perko and Mr.
24 Green.
25 Q So the letter --
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1 A I believe you have a copy.
2 Q You can mark that Exhibit 3?
3 (Whereupon, United States's Exhibit No. 3 was
4 marked for Identification by the Court Reporter.)
5 The letter dated October 19, 1992, is now
6 Exhibit 3 for this hearing. Is that the letter to which
7 you refer?
8 A Yes.
9 Q Do you have any other correspondence that
10 reflect when your relationship with Hopping Boyd Green &
11 Sams in that matter referenced in the letter, began?
12 A Again, I believe, that the proposal on the
13 contract documents regarding the project that Mr. Horvath
14 did, was the first of us officially being retained by this
15 company on this particular matter. I don't have the exact
16 dates.
17 Q So other than correspondence and proposals
18 related to the seepage tests on the Gilmore (phonetic) and
19 Hillsbourgh Farms (phonetic) in the EAA, you have no
20 correspondence relating to the work you were to do?
21 A No.
22 Q Have you commenced your work - let me
23 withdraw that.
24 You stated that your firm is organized
25 functionally, internally. What division is Mr. Horvath
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1 in?
2 A Hydrogeology.
3 Q What division are you in?
4 A I really straddle in all different - I'm a
5 corporate employee.
6 Q Who, within your firm, will have or has the
7 responsibility for coordinating whatever work will be done
8 on the case at issue to which this letter says you have
9 been retained?
10 MR. KOBELINSKI: Object to the form of the
11 question to the extent that "you" is being used
12 both as the witness personally and Missimer &
13 Associates repeatedly without making reference as
14 to who is being discussed.
15 A Could you repeat the question.
16 (Thereupon, the court reporter read back the last
17 question.)
18 A This in fact depends upon what is asked to be
19 done. Mr. Horvath or I, one or both of us, will divide
20 the responsibilities accordingly.
21 If it was to do with the dike leakage issues,
22 Mr. Horvath will deal with it. Whatever other issues, I
23 deal with them depending on what is instructed by the
24 attorney for this case.
25 Q Have you discussed at all the time frame over
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1 which your work is to be performed?
2 A I'm aware that the administrative hearing
3 will be held sometime in the spring. I assume that the
4 work will be done before that.
5 Q Have you done your work?
6 A In my particular case, no.
7 Q When do you plan to begin it?
8 A I will begin it when the attorneys, you know,
9 specifically authorize me to proceed with a specific scope
10 of what they wish me to investigate.
11 Q Did you discuss with the attorneys in advance
12 of their designating you as a witness in this matter, what
13 the areas of your potential testimony might be?
14 A Yes, I did.
15 Q When was that?
16 A Say, a few months ago.
17 Q What was your understanding of the area or
18 subject matter of your expected testimony?
19 A Again, I might qualify the answer to this
20 because I may have several areas that I am not aware that
21 I may be testifying.
22 I have not discussed that or had anything in
23 writing to me. I'm aware that I may testify in the area
24 of municipal water supply withdrawals on the Southeast
25 coast. There may be other areas.
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1 Q Have you done any review of the Everglades
2 SWIM Plan that was approved by the South Florida Water
3 Management District this past spring?
4 A Because I'm on the list of people that get
5 every water management district report, I have looked at
6 parts and I have read them out of interest. But, I have
7 not reviewed it in detail.
8 MR. KOBELINSKI: Can we take a break?
9 (A short break was taken.)
10 BY MR. FITZGERALD:
11 Q Can you read back the last question.
12 (Thereupon, the last question was read back
13 by the court reporter.)
14 Q Did you review any of the preliminary
15 drafts - the three or four versions - that the SWIM Plan
16 went through before the adopted version in the spring of
17 '92?
18 (There was an interruption on the telephone.)
19 A In response to your question, I saw all of the
20 preliminary drafts because, again, being on the mailing
21 list, I had the fortunate opportunity to be present for
22 some of the hearings.
23 So, I am aware generally of some of the
24 material, but I never reviewed it in detail. I just read
25 a few things.
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1 Q Did anyone at Missimer & Associates review
2 the remediations of the SWIM Plan as part of any contract
3 or formal work the firm was doing?
4 A Not that I know of.
5 Q Going back in time, are you familiar with
6 what is referred to as the Everglades Agricultural Area
7 Regulatory Program 40E-63 of the Florida Administrative
8 Code?
9 A In general, I'm familiar with it.
10 Q How are you familiar with that?
11 A Again, I was present during the adoption
12 hearing of that particular rule or whatever was going on,
13 the preliminary adoption hearing.
14 Q When you say, "hearing" you mean the formal
15 meeting of the board of the South Florida Water Management
16 District?
17 A Yes, I'm present in a lot of the board
18 meetings because I have to be there for other things, and
19 I have to wait through this stuff.
20 Q Did anyone in your firm, to your knowledge,
21 formally review or participate in the development of the
22 BMP rule?
23 A To my knowledge, no.
24 Q Does your firm have anyone within it in the
25 South Florida offices or elsewhere who specializes or has
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1 any expertise in Best Management Practices for farming?
2 A Not that I know of, no.
3 Q Have you or anyone at your firm, to your
4 knowledge, done any work in evaluating the proposed 40E-63
5 with regard to its affect on water supply for South
6 Florida?
7 A We have not done any work yet regarding water
8 supply issues, no.
9 Q Do you anticipate that that's the area in
10 which you will be working with regard to this case?
11 A It's possible.
12 Q Can you characterize for us how much of the
13 work of Missimer & Associates offices in Florida are
14 performed for clients in the Everglades Agricultural Area?
15 A I am not sure I understand, how do you want
16 that characterized?
17 Q Okay, do you understand what I mean when I
18 refer to the Everglades Agricultural Area as defined in
19 the SWIM Plan?
20 A Yes.
21 Q Does your firm, within its four South Florida
22 locations that you have described previously, work for
23 clients in that area?
24 A Yes.
25 Q What's the general nature of the work you do
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1 for them?
2 A Generally involves water supply.
3 Q Do you also do remediation plans for clients
4 in that area?
5 A You mean in terms of wetland mediation?
6 Q No, let me give you an example. In the
7 documents that Mr. Horvath produced, did you note that
8 your firm has been involved in assessing a plan and
9 supervising a plan to review certain outdated fuel tanks,
10 for example, in the particular facility in the EAA?
11 A Yes, I'm aware of that.
12 Q You do that type of work?
13 A Yes.
14 Q That's referred to by the Environmental
15 Agency as remediation plan, is it not?
16 A Yes.
17 Q There's state money available for removing
18 old fuel tanks?
19 A Correct.
20 Q You do that type of consulting work?
21 A Yes.
22 Q If somebody should have - within the EAA - a
23 pollution disorder: A truck overturns, an old tank leaks,
24 or whatnot, it is DERA that directs that they correct the
25 problem, is that right?
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1 A It can be, yes.
2 Q Does your firm participate in developing the
3 plans for the remediation program, hauling away the
4 tainted soil for ultimate incineration or cleaning?
5 A We are involved in that type of project
6 throughout the State of Florida, yes.
7 Q So those are some of the services that you
8 provide for clients in the EAA?
9 MR. KOBELINSKI: Object to the form of the
10 question, lack of foundation.
11 Q (BY MR. FITZGERALD) You can answer the
12 question, if you can.
13 A We have been involved in storage tanks and
14 water supply, correct.
15 Q Did you become involved in projects in the
16 EAA involving the development of additional sources of
17 irrigation water?
18 A Yes.
19 Q You have some of those ongoing right now?
20 A Correct.
21 Q Mr. Horvath provided those documents?
22 A (Witness nods head.)
23 Q Have you done any work in attempting or
24 assisting in efforts to hydrologically isolate facilities
25 in the EAA?
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1 A Could you explain what you mean by
2 "hyrologically isolate facilities"?
3 Q I can try. Personally, I don't think it's
4 possible, but that's something I'm going to ask you in a
5 minute.
6 If one had a facility in the EAA, they
7 hypothetically had a sugar mill and wished to isolated it
8 so that the water used in processing or water by rainfall
9 or otherwise used on the facility would not enter
10 downstream waterflow either surfacial or subsurfacial,
11 could you refer to that for these purposes as
12 hydrologically isolated? Have you done any work of that
13 sort?
14 A The only thing that I can recall that is
15 close to that is the work that Mr. Horvath has done on the
16 citrus processing facility for US Sugar in the terms of
17 the spray irrigation and the industrial waste.
18 Q That's a new facility that's just been
19 developed?
20 A Yes.
21 Q Where is that located?
22 A It's in Hendry County. The exact location, I
23 would have to refer to the project file.
24 Q Has Missimer & Associates ever done any work
25 in analyzing the effluent on the sugar mills?
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1 MR. KOBELINSKI: I object to the form of the
2 question.
3 MR. FITZGERALD: Basis?
4 MR. KOBELINSKI: The characterization of
5 "effluent".
6 Q (BY MR. FITZGERALD) Mr. Missimer, do you
7 understand the term, "effluent"?
8 A Yes.
9 Q Please answer the question, if you can?
10 A No.
11 Q Have you done any study work for the firm
12 again on the effluent of farming practices in the EAA?
13 MR. KOBELINSKI: Object to the form. Same
14 basis.
15 A The only thing we have been involved in
16 regarding agricultural "effluent" is for storage for the
17 recovery project for US Sugar. It's not directly related
18 to the quality. It's related to management.
19 Q (BY MR. FITZGERALD) The aquifer system that
20 you are working on for US Sugar, that's a current project?
21 A Yes.
22 Q What's the nature of that project?
23 A Again, I'm not the project manager. I know
24 very few of the details other than I reviewed the
25 construction; I did documents.
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1 It's a test well for US Sugar; that's really
2 as much as I can tell you about it.
3 Q Do you recall where the test wells are
4 located?
5 A I don't know specifically. I don't have a
6 map in front of me.
7 Q Is it in operation as yet?
8 A No.
9 Q Do you know when approximately it is supposed
10 to be put in place?
11 A Since it's a test well, it's got to go
12 through all the testing. I don't think it's under
13 construction yet. It may be by now, but I doubt it.
14 Q Did your proposal include the services to
15 acquire the necessary permits for that testing?
16 A Yes.
17 Q Is that from the South Florida Management
18 District and DERA?
19 A Under the UIC programs.
20 Q What is the design capacity of the test well,
21 if you know?
22 A Design capacity will be based on what the
23 aquifer will be able to receive. I don't know at this
24 time.
25 Q So, that is one of the tests parameters you
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1 will be handling?
2 A Yes.
3 Q Who is handling that?
4 A The project management is Doctor Charles
5 Walker, and he is being assisted by Horvath.
6 Q Is Doctor Walker a employee of Missimer?
7 A Yes, he is.
8 Q When did you secure the contract to perform
9 that work?
10 A I believe, within the last eight months. I
11 can't tell you the exact date.
12 Q That's specifically with the US Sugar
13 Corporation?
14 A Yes.
15 Q Do you have any contracts with Flo-Sun? Are
16 you familiar with Flo-Sun?
17 A No, I'm not familiar.
18 Q How about New Hope South Incorporated?
19 A I don't recall, but I'll preface this, we
20 have over 14 hundred active projects in our computer.
21 I don't recall seeing that, but I can't tell
22 you if it's there or not for sure.
23 Q Maybe it's easier to do it geographically
24 first. Do you also have general oversight, in that role
25 you described, in terms of water quality projects?
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1 A Only once that I'm specifically called in on
2 quality control; not every one of them.
3 Q How does your firm make a decision to accept
4 a contract or not accept a project?
5 A Well, usually we are requested to write a
6 proposal on a specific type of project. In most cases, we
7 respond with a proposal.
8 If we have conflicts of interest or if we
9 review for that, we don't want to be working for company
10 "X" and company "Y" has a litigation against the same
11 company.
12 We really look for conflicts of interest or
13 in certain cases, expert testimony; whether or not we
14 believe the facts in this case and that particular type of
15 thing. I mean that's what we look at. Like any other
16 company, we do the best we can to get as much work as
17 possible.
18 Q Would you be the person at your firm with the
19 widest general knowledge of the projects the firm is
20 currently engaged in, in South Florida?
21 A Perhaps in a general sense, historically,
22 yes; but, currently, perhaps, no.
23 Q Are you aware of any other projects other
24 than the few we have discussed on the aquifer storage and
25 recovery well and some of the remediation projects that
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1 your firm is engaged in, in the Everglades Agricultural
2 Area?
3 A Yes.
4 Q What are those?
5 A They are two projects that have been listed
6 as confidential. We have confidentiality agreements not
7 to reveal any of the details of those two projects.
8 Q Who are the clients in those cases?
9 A The clients are the firms of Peeples, Earl &
10 Blank and the other client is Landers and Parsons.
11 They're both law firms.
12 Q Where is Landers and Parsons located?
13 A Tallahassee.
14 Q Who retained you from Peeples, Earl & Blank?
15 Who is the attorney who retained you?
16 A I believe it was Dennis Stotts, but I'm not
17 sure of the details because I do not know anything with
18 regard to that project. I just know it exists.
19 Q Who is the project manager for that firm?
20 MR. KOBELINSKI: Object to the form. What
21 firm, the witness'?
22 Q (BY MR. FITZGERALD) Yes, when I say "your
23 firm" I mean Missimer & Associates for future reference
24 not somebody else's firm, if that wasn't clear.
25 A I am concerned with revealing anything with
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41
1 regards to that project because we have a confidentiality
2 agreement. I don't think, based on my contract and the
3 way it is worded, I should.
4 Q What's the value of that contract to your
5 firm?
6 A I would affirm that the confidentiality
7 agreement also applies to the finances.
8 Q Are you directing your witness not to answer?
9 MR. PERKO: I'm instructing the witness not
10 to answer any questions regarding the specific
11 terms of these two agreements.
12 Q (BY MR. FITZGERALD) What's the value of the
13 aquifer storage recovery well project to your firm?
14 A I really don't know to tell you the truth. I
15 could find out, but I don't know.
16 Q Do you know the value of the other two
17 contracts you have referred to that you say that you are
18 under some sort of confidentiality agreement?
19 A Yes.
20 Q Did you assist in the evaluation of the
21 request that you become involved in those projects, the
22 development of the proposal?
23 A One of the projects.
24 Q Which one?
25 A The Landers and Parsons project I was
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1 involved indirectly.
2 Q Is it fair to say that based on your stock
3 ownership in the firm, that you have a financial interest
4 in the project that the firm engages in?
5 A To some degree, like any shareholder any
6 public corporation, I have an interest in the well-being
7 of the corporation, but not a personal financial interest.
8 I would not describe it as that.
9 Q Do you receive dividends on your stock?
10 A No.
11 Q Do you have stock options?
12 A Me, personally, no.
13 Q How is your salary set?
14 A Salary is set by the compensation committee
15 of the board.
16 Q Are you a member of the board?
17 A Yes.
18 MR. FITZGERALD: During the next break we
19 will see if the hearing office is available to
20 address the question of - that you have directed
21 the witness not to answer.
22 For the purposes of the record, I take
23 exception to that and will pursue it further. This
24 deposition will not be concluded, but merely
25 adjourned if the hearing officer is not available.
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1 The witness is subject to potential
2 impeachment. There are indications of bias based
3 on the financial value of those projects to his
4 firm in which he is a substantial shareholder by
5 his own description.
6 MR. KOBELINSKI: To the extent that you will
7 be contacting the hearing officer and the witness
8 has mentioned another firm which I understand he's
9 bound by confidentiality, I think that, that firm
10 should be contacted with regards to the hearing and
11 it should be, if it wishes to do so, be present
12 during that hearing.
13 MR. FITZGERALD: We are attempting to contact
14 the hearing officer, and we will afford him an
15 opportunity to contact the law firm if he so
16 desires.
17 MR. KOBELINSKI: I will object to your
18 characterization as far as personal financial, and
19 I will say that you have a lack of foundation for
20 bias.
21 MR. PERKO: I will object as well.
22 BY MR. FITZGERALD:
23 Q Mr. Missimer, what's the value of your stock?
24 A I don't know. I guess it's been seven
25 and-a-half dollars a share.
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1 Q How many shares do you hold?
2 A About two hundred seven thousand shares.
3 Q So, it would be fair to say about one point
4 five million dollars, roughly?
5 A Based on your arithmetic, something like
6 that.
7 Q You're the engineer. Two hundred thousand
8 times seven dollars will be one point four million, you
9 would agree to that?
10 A Yes.
11 Q So rounded up between one point four and one
12 point five.
13 Does that represent a substantial amount of
14 your personal assets?
15 A Yes.
16 Q Other than the two projects that you don't
17 choose to answer questions about at this point, how many
18 other projects does your firm currently have in the EAA?
19 A We have US Sugar and some continuing service
20 issues on the southern division of their citrus operation.
21 There may be some additional work to be done on some
22 monitoring of the new citrus plant.
23 The work that we are doing for Mr. Perko in
24 this case is a confidential project, and right now, I
25 believe, that is all. But, again, with the preface that's
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1 the best I can do in recalling the list of projects that
2 we have, actually in the EAA.
3 Q Okay. I think this is a good place to take a
4 break and see if we can reach a hearing officer.
5 Oh wait, wait, please. Let's finish
6 something else first as far as we can.
7 Were you aware that Mr. Horvath had been
8 asked similar questions regarding contracts in the EAA?
9 A No.
10 Q Had you discussed his testimony with him?
11 A No.
12 Q Did counsel discuss with you prior to today
13 what you might be asked regarding confidential contracts
14 that your firm has for people in the EAA?
15 MR. KOBELINSKI: You're asking for - I'm
16 curious. You are asking for counsel's discussions
17 with this witness?
18 MR. FITZGERALD: The question speaks for
19 itself.
20 A I'm not sure counsel's discussions --
21 Q (BY MR. FITZGERALD) Let me rephrase that.
22 Were you aware prior to today, what you would
23 be asked regarding contracts your firm has with employers
24 in the EAA?
25 A Yes.
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1 Q Did you discuss with your employers the
2 contractual arrangements and the fact that you might be
3 asked about those?
4 MR. KOBELINSKI: I'll object to the extent
5 that he is - again, you are going into - he has
6 referenced some contracts with some law firms, and
7 if you are talking about discussions with counsel,
8 I will object to the extent that you are asking for
9 privileged information.
10 MR. FITZGERALD: I'm not asking for
11 privileged information, Counselor. I am not asking
12 the substance of the discussions; I am asking if he
13 discussed those matters.
14 MR. KOBELINSKI: Exactly, if you are asking
15 if he discussed particular matters, that is the
16 substance. You are asking, what did he discuss
17 with Counsel.
18 MS. CLEMENTS: No, he's asking whether he
19 just discussed the contract, not anything about the
20 contract.
21 MR. KOBELINSKI: Then I would like the
22 question read back.
23 (Thereupon, the last question was read back
24 by the court reporter.)
25 MR. KOBELINSKI: Again, you are asking
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1 whether or not he discussed what testimony, he may
2 have. I'll object to the extent that you are
3 asking privileged information.
4 MR. FITZGERALD: Are you instructing the
5 witness not to answer?
6 MR. KOBELINSKI: To the extent that you are
7 directing it towards a contract that he may have
8 with my firm, I certainly would.
9 I would just make comments again. I have
10 invited you to contact the other law firm that he
11 has mentioned and to bring them into this. I
12 believe that would be the proper thing to do at
13 this point and time. We have not done so as yet.
14 So, I certainly cannot go ahead and instruct him as
15 to another law firm.
16 Again, I think that law firm should be
17 brought in if you are going to ask for privileged
18 communication.
19 MR. FITZGERALD: Mr. Missimer, I'm not asking
20 you to reveal the content or the substance of any
21 of the discussions he had.
22 Q (BY MR. FITZGERALD) Did you discuss the
23 issue of the possibility that during this deposition you
24 might be called upon or asked to reveal the
25 confidentiality --
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1 MR. PERKO: I'm going to instruct the witness
2 not to answer the question because it is designed
3 to reveal a privileged communication between
4 counsel.
5 MR. FITZGERALD: Take that up with the
6 hearing officer.
7 For the record, what it is designed to reveal
8 is whether or not, in fact, the other law firm was
9 apprised since everyone here knew that this would
10 be the subject matter of the discussion with the
11 correspondence among counsel and because of
12 Horvath's deposition that, in fact, this witness
13 would be asked these questions for the purposes of
14 listing any potential bias or prejudice in his
15 testimony.
16 I'm sure from your prior involvement both as
17 an expert for the United States at one point and in
18 the state cases the notion that your potential bias
19 would be explored is not a new one.
20 Let's get the hearing officer.
21 MR. KOBELINSKI: I object to the extent that
22 Counsel has yet to explore bias in a meaningful
23 manner whatsoever, and, again, I will place my
24 request that the other firm be contacted with
25 regard to this hearing or the attempt of this
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1 hearing.
2 (Thereupon, a break was taken for a hearing.)
3 BY MR. FITZGERALD:
4 Q Mr. Missimer, do you or your firm at this
5 time have any contracts with any party to this action to
6 perform work within the EAA?
7 A Say, with regard to this action?
8 Q Yes, parties to this action, not regard to
9 this action. Do you know who the parties are to this
10 case?
11 A Yes.
12 Q Do any of those parties currently have
13 contracts with your firm other than the one reflected in
14 the letter dated October 19th from Hopping, Boyd?
15 A Yes, one party.
16 Q Okay. Didn't you earlier indicate there are
17 two?
18 A There are two contracts but only one party to
19 this case.
20 Q Okay. In addition to - is that the Peeples,
21 Earl contract you were referring to earlier, or is that
22 the one with --
23 MS. CLEMENTS: Landers & Parsons.
24 Q (BY MR. FITZGERALD) Is the Landers & Parsons
25 related to a party in this case?
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1 A As you are aware, we have a contract with US
2 Sugar regarding the ASR projects.
3 Q In addition to that contract, do you have any
4 other contracts with US Sugar for work within the EAA of
5 any sort whatsoever?
6 MR. KOBELINSKI: I will object to the form of
7 the question. I understand what you are asking.
8 He testified that it was with the law firm. So, to
9 the extent - I will object to the form of the
10 question.
11 MR. FITZGERALD: You are asking a different
12 question, and you can certainly do that. I'm
13 asking him about US Sugar.
14 A We have a contract with US Sugar regarding
15 the ASR wells and various supply things. So there may be
16 a couple of things. We have a contract with the law firm
17 of Landers & Parsons.
18 We do not have a contract with any party
19 outside of those two law firms. The contracts are between
20 Missimer & Associates Incorporated and those law firms.
21 Q (BY MR. FITZGERALD) The contracts you refer
22 to as between Missimer & Associates, these were signed on
23 behalf of Missimer & Associates or on behalf of the
24 ViroGroup Inc., the holding company?
25 A At that time there was no ViroGroup Inc.
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1 there was a name change. I think everything - I assume is
2 incorporated that has been ever been done in the past by
3 the overall encompassing name.
4 So, if it's ViroGroup and Associates
5 Division, Missimer & Associates then signed the contract
6 as the corporate entity in the State of Florida.
7 Q Does ViroGroup or Missimer & Associates have
8 existing contracts with any law firm to perform work
9 within the EAA?
10 A Yes.
11 Q How many?
12 A To my knowledge, there are two general
13 contracts.
14 Q Who is Tom O'Donnell?
15 A Thomas H. O'Donnell is one of my senior
16 partners. He is a director of the firm. He's a senior
17 hydrogeologist in charge of the environmental division.
18 Q Do you have any oversight responsibilities of
19 the environmental division?
20 A No, he is in charge of the environmental
21 division.
22 Q Are you familiar with the work they do?
23 A Yes.
24 Q Does your board of directors review proposals
25 or contract offers prior to accepting them to make sure
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1 there are no conflicts?
2 A No.
3 Q Who does that?
4 A That is done under the individual project
5 manager and the supervisor.
6 Q Is Mr. O'Donnell the project manager for the
7 contract with the Parsons law firm in Tallahassee?
8 A I think that again is confidential.
9 Q Why?
10 A Why is it confidential?
11 Q Yes.
12 A Because we have a very broadly-worded
13 confidentiality agreement on both those contracts that is
14 done by a law firms, very broadly.
15 So, therefore, I can't reveal anything
16 regarding those contracts other than their existence.
17 Q Well, you're talking about two contracts now.
18 Let's stick to the Parsons contract. Do you have a
19 confidential agreement on that contract?
20 A Yes.
21 Q Who drafted that provision?
22 A I assume that Cindy Bartin with the firm of
23 Landers & Parson is the one who drafted that.
24 Q Is she the attorney who handled that matter
25 with your firm?
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1 A Yes.
2 Q Is that for work within the EAA?
3 A Yes.
4 Q Are you prepared to answer any other
5 questions with regard to the precise nature of the work
6 being performed on that contract?
7 A No, because the confidentiality of the
8 contract specifically includes the discussion with anyone
9 on that contract about the work performed, any details or
10 the nature of work.
11 Q Does that include the value of the contract
12 to your firm?
13 A In my opinion, yes.
14 Q Does it include the geographic site within
15 the EAA of the work?
16 A In my opinion, yes.
17 Q Does it include the water quality issues
18 being studied, examined, or reviewed, by your firm in that
19 contract if any? That way you are not saying it's water
20 quality.
21 A If there is a water quality issue involved,
22 we are not to reveal what the nature is.
23 Q In your opinion under this confidentiality
24 agreement, do you feel bound not to discuss any
25 environmental implications of the work being done by your
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1 firm for the Parsons' firm?
2 A We are not to disclose anything regarding the
3 contract.
4 Q So, you view it as a blanket bar to any
5 discussion other than the fact that a contract exists with
6 the law firm?
7 MR. KOBELINSKI: I will object to the form to
8 the extent that the witness and Mr. Horvath's
9 testimony has confirmed that it is not related to
10 phosphorus and not related to the SWIM challenge.
11 So, that is certainly an additional matter
12 related to the contract. So, I will object to the
13 form of the question, mischaracterizing prior
14 testimony.
15 Q (BY MR. FITZGERALD) Aside from Horvath's
16 testimony, what is your position on what constraints are
17 placed on you as a director of the firm as a senior
18 partner on confidentiality?
19 A Confidentiality agreements are taken very
20 seriously by our firm. A fiduciary relationship between
21 our firm and a contracting agency or firm that we deal
22 with.
23 Therefore, we provide information only as
24 directed by legal counsel as a party to this contract.
25 MR. KOBELINSKI: I note for the record I
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1 object to the form of the question to the extent
2 that he characterized this witness as a senior
3 partner when he has testified it is a corporation
4 and not a partner.
5 Q (BY MR. FITZGERALD) Mr. Missimer, a few
6 minutes ago you referred to Mr. O'Donnell as one of your
7 senior partners, you didn't mean that in a technical/legal
8 sense, did you?
9 A He was an original senior partner prior to
10 becoming a public corporation. He is now a shareholder
11 and director of the corporation.
12 Q So, his status is essentially equivalent to
13 yours?
14 A Yes.
15 Q Just to clarify, you are using the term,
16 "partner". With regard to the contract you've described,
17 the second contract with the firm of Peeples - withdraw
18 that. Let me back you up a second.
19 You indicated that you take the fiduciary
20 relationship very seriously at your firm, and only
21 disclose details as permitted or directed after
22 discussions with the law firm?
23 A Yes.
24 Q Have you discussed this issue with the
25 retaining law firm?
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1 A Yes.
2 Q And what, if anything, have they told you
3 that you can reveal?
4 A I am not permitted to reveal anything.
5 Q With regard to the second contract with
6 Peeples, Earl, is there, in fact, a second contract for
7 work in the EAA where your firm was retained by Peeples,
8 Earl?
9 A Yes.
10 Q Is Tom O'Donnell the project manager for that
11 project?
12 A I can't reveal who the project manager is,
13 specifically. All I can say is I am not and not party to
14 all the details.
15 Q Do you know who the contract manager is or
16 the project manager?
17 A Yes.
18 Q You view that even the identity of the
19 project manager falls within some confidentiality?
20 A Yes.
21 Q Does that contract with the Peeples Earl, in
22 fact, contain a confidentiality agreement?
23 A Yes.
24 Q Who drafted the agreement?
25 A I don't know.
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1 Q Is your firm represented by counsel under a
2 retainer?
3 A We periodically use counsel. I am not
4 under - I don't have counsel to this hearing at this
5 particular time.
6 Q I understand. Were either of these two
7 confidentiality agreements submitted by you or your firm
8 to your own counsel to review prior to signing the
9 agreement?
10 A No.
11 Q The agreement - the confidentiality agreement
12 in the Peeples Earl contract, what is your understanding
13 of the implication it places on your ability to answer
14 questions regarding the scope, geographic site, dollar
15 value, or nature of that contract?
16 A In my opinion, it does not allow us to reveal
17 anything unless we are so designated by counsel with
18 regard to their interpretation of the contract.
19 Q Have you sought permission from Peeples and
20 Earl?
21 A No, I have not sought permission. I have
22 discussed it with them.
23 Q With whom?
24 MR. KOBELINSKI: I will object. He
25 identified that he discussed it with the law firm.
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1 I don't think there is a need to go beyond that.
2 Q (BY MR. FITZGERALD) You can answer the
3 question. Which lawyer have you discussed it with at
4 Peeples Earl?
5 A I think that's privileged information between
6 the law firm and myself.
7 Q I would submit that it's not, and you can
8 refer to your counsel. The mere identity of the lawyer,
9 in our view, would not be. You can consult with counsel
10 representing you here.
11 A I discussed it with Mr. Kobelinski.
12 Q Have you had an opportunity to discuss it
13 with any other attorney?
14 A Not this morning.
15 Q Which attorney at Peeples Earl - now you
16 mention Miss Bartin with regard to other contracts?
17 A Yes.
18 Q Who handled the other contract?
19 A Again, I was not directly involved in this
20 particular contract.
21 Q If you know?
22 A I don't want to speculate on the details of
23 how it began.
24 Q You don't know?
25 A I don't know from the very beginning to tell
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1 you the truth.
2 Q Am I correct in taking from your answer, at
3 some point you became aware of an attorney dealing with
4 your firm?
5 A Like any consulting firm or law firm, from
6 time to time, the lawyer who handles things can change
7 just like consultants change.
8 I'm not aware of the whole history of the
9 project who started it and who ended it and where it is
10 right now.
11 Q What attorneys from Peeples Earl are you
12 aware of having dealt with your firm with respect to that
13 contract?
14 A Dennis Stotts I'm aware of, that's it.
15 Q Is that for work within the EAA?
16 A That specific contract?
17 Q Yes.
18 A Yes.
19 Q Going back to the document that's -- let me.
20 (Whereupon, United States's Exhibit No. 4 was
21 marked for identification by the Court Reporter.)
22 Mr. Missimer take a look at Exhibit 4. I'm
23 sorry, I didn't plan to use this so I don't have copies.
24 Do you recognize that designation of, "Fact
25 Witnesses" specifically the circled paragraph number two
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1 next to your name?
2 A Yes.
3 Q Had you seen that prior to today?
4 For the record, this is the designation by
5 Hopping Boyd on behalf of the corporation?
6 A I believe, I've seen it before.
7 Q Is it your understanding, at this time, that
8 that's the general subject matter of your expected
9 testimony?
10 A Yes.
11 Q Has it changed since that original
12 designation, to your knowledge?
13 A To my knowledge, no, really nothing has
14 changed.
15 Q Is it your testimony that as of today,
16 November 2nd you have done no work specifically addressed
17 to that area of testimony?
18 A I have --
19 MR. KOBELINSKI: Object to the form of the
20 question.
21 MR. FITZGERALD: You can go ahead and answer.
22 A I have provide some documents to another firm
23 in terms of withdrawals. I have not analyzed those
24 documents, not done analysis.
25 Q (BY MR. FITZGERALD) What type of documents
&