KTR00098

MELVIN M.L.
McELWEE (VOL II) 4/24/2008
Page 366
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL BREACHES CIVIL ACTION
CONSOLIDATED LITIGATION NO. 05-4182 K2
JUDGE DUVAL
PERTAINS TO MAG. WILKINSON
(Robinson, No. 06-2268)
- AND -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL BREACHES CIVIL ACTION
CONSOLIDATED LITIGATION NO. 05-4182 K2
JUDGE DUVAL
FILED IN: MAG. WILKINSON
05-4181, 05-4182, 05-5237, 05-6073, 05-6314,
05-6324, 05-6327, 06-0225, 06-0886, 06-1885,
06-2278, 06-2287, 06-4065, 06-4389, 06-4634,
06-4931, 06-5032, 06-5159, 06-5161, 06-5260,
06-5937, 07-1271
(V O L U M E II)
Deposition of MELVIN M.L. MCELWEE,
SR., given at the Law Office of Joseph M.
Bruno, 855 Baronne St., New Orleans, Louisiana
70113, on April 24th, 2008.
REPORTED BY:
JOSEPH A. FAIRBANKS, JR., CCR, RPR
CERTIFIED COURT REPORTER #75005
JOHNS PENDLETON COURT REPORTERS 800 562-1285

MELVIN M.L. McELWEE (VOL II) 4/24/2008
Page 367 Page 369
1 APPEARANCES: 1 EXAMINATION INDEX
2 REPRESENTING THE PLAINTIFFS: 2
3 BRUNO & BRUNO 3 EXAMINATION BY: PAGE
4 (BY: JOSEPH M. BRUNO, ESQUIRE) 4
5 (BY: SCOTT JOANEN, ESQUIRE) 5 MR. TREEBY ...............................371
6 855 Baronne Street 6 MR. LEVINE ...............................413
7 New Orleans, Louisiana 70113 7 MR. BRUNO ...............................483
8 504-525-1335 8 MR. TREEBY ...............................488
9 - and - 9 EXHIBIT INDEX
10 SHER, GARNER, CAHILL, RICHTER, KLEIN &
10
11 HILBERT, L.L.C. 11 EXHIBIT NO. PAGE
12 (BY: MATTHEW CLARK, ESQUIRE) 12 EXHIBIT 39 ...............................417
13 909 Poydras Street, 28th Floor 13 EXHIBIT 40 ...............................426
14 New Orleans, Louisiana 70112 14 EXHIBIT 42 ...............................432
15 504-299-2100 15 EXHIBIT 43 ...............................434
16 16 EXHIBIT 44 ...............................448
17 REPRESENTING THE UNITED STATES OF AMERICA: 17 EXHIBIT 45 ...............................457
18 UNITED STATES DEPARTMENT OF JUSTICE, 18
19 TORTS BRANCH, CIVIL DIVISION 19
20 (BY: PAUL LEVINE, ESQUIRE) 20
21 P.O. Box 888 21
22 Benjamin Franklin Station 22
23 Washington, D.C. 20044 23
24 202-616-4289 24
25 25
Page 368 Page 370
1 REPRESENTING THE U.S. ARMY CORPS OF ENGINEERS. 1 STIPULATION
2 CORPS OF ENGINEERS, OFFICE OF COUNSEL 2 IT IS STIPULATED AND AGREED by and
3 (BY: JENNIFER LABOURDETTE, ESQUIRE) 3 among counsel for the parties hereto that the
4 7400 Leake Avenue 4 deposition of the aforementioned witness may be
5 New Orleans, Louisiana 70118-3651 5 taken for all purposes permitted within the
6 504-862-2843 6 Federal Rules of Civil Procedure, in accordance
7 7 with law, pursuant to notice;
8 REPRESENTING WASHINGTON GROUP INTERNATIONAL: 8 That all formalities, save reading
9 STONE PIGMAN WALTHER WITTMANN, L.L.C. 9 and signing of the original transcript by the
10 (BY: WILLIAM D. TREEBY, ESQUIRE) 10 deponent, are hereby specifically waived;
11 546 Carondelet Street 11 That all objections, save those as to
12 New Orleans, Louisiana 70130 12 the form of the question and the responsiveness
13 504-581-3200 13 of the answer, are reserved until such time as
14 14 this deposition, or any part thereof, is used
15 REPRESENTING ORLEANS LEVEE DISTRICT: 15 or sought to be used in evidence.
16 SUTTON LAW FIRM 16
17 (BY: CHARLES E. SUTTON, JR., ESQUIRE) 17
18 2101 N. Highway 190, Suite 105 18 * * *
19 Covington, Louisiana 70433 19
20 985-249-5991 20
21 ALSO PRESENT: KEA SHERMAN, ESQ., NICOLE 21
22 BOYER-DUPLASS, ESQ., CHARLES LANIER, ESQ. (VIA 22 JOSEPH A. FAIRBANKS, JR., CCR, RPR,
23 I-DEP), KIRK AURANDT, ESQ. (I-DEP) 23 Certified Court Reporter in and for the State
24 VIDEOGRAPHER: 24 of Louisiana, officiated in administering the
25 GILLEY DELORIMIER (DEPO-VUE) 25 oath to the witness.
2 (Pages 367 to 370)

Page 371 Page 373
1 MELVIN M.L. MCELWEE, SR. 1 MR. BRUNO:
2 14154 Rev. Joseph White Road, Independence, 2 Yeah, yeah, if you let me just
3 Louisiana 70443, a witness named in the above 3 check it. I think he said a mile and
4 stipulation, having been first duly sworn, was 4 a half. This is ridiculous.
5 examined and testified on his oath as follows: 5 MR. TREEBY:
6 EXAMINATION BY MR. TREEBY: 6 I think it will be quicker for
7 Q. Good morning, Mr. McElwee. I have a 7 the witness to do it than for us to
8 few more questions for you. In fact, to begin 8 stipulate, that's why --
9 the day I handed you an exhibit that we're 9 MR. BRUNO:
10 going to -- that I have already marked, I 10 I don't know. A stipulation is
11 believe, Exhibit 36. And it is simply a street 11 always better.
12 map of New Orleans, and I gave it to you ahead 12 MR. TREEBY:
13 of time so that you could attempt to look at -- 13 Well, I don't know if it's
14 I didn't instruct you this, so you may need to 14 better.
15 do that now, look for Florida Avenue, just 15 MR. BRUNO:
16 below the Florida Avenue bridge. 16 Well, I'm going to tell you right
17 A. Yes, sir. 17 now --
18 Q. Do you see that? 18 MR. TREEBY:
19 A. Yes, sir. I see that. 19 But you know what? I want this
20 Q. It's below the Gulf Intracoastal 20 witness to say it. Okay?
21 Waterway? 21 MR. BRUNO:
22 A. Yes, sir, it is. 22 All right, then fine. Then
23 Q. Okay. And I'm going to ask you, 23 you're going to stipulate that he's an
24 carefully, if you will, to put an X on the map 24 expert in charting and graphing and
25 at the place where Florida Avenue intersects 25 all that?
Page 372 Page 374
1 with the Inner Harbor Navigational Canal. 1 MR. TREEBY:
2 A. Is it okay in ink? Normally we write 2 No.
3 on maps in pencil. 3 MR. BRUNO:
4 Q. No, in ink. I want this in ink. Be 4 Then it is what it is. All
5 careful. With a little small X. 5 right, it's three and three quarter
6 A. Yes, sir. 6 inches. Right? Do we agree? Can we
7 Q. Okay. And then I want you to put an X 7 stipulate?
8 where Dwyer Road intersects with the Inner 8 MR. TREEBY:
9 Harbor Navigational Canal. 9 It's actually three and
10 A. Dwyer Road doesn't intersect with it. 10 thirteen-sixteenths, but that's okay.
11 But I'll project a line to it. 11 MR. BRUNO:
12 Q. Yeah. Right. The site of the work 12 No, it's not, because you asked
13 that you did. 13 him to make the mark, and so you're
14 A. Yes, sir. 14 stuck with his marks, not your marks.
15 Q. Have you done that? 15 And since you haven't even bothered to
16 A. Yes, sir. 16 look at this you don't know if it's --
17 Q. The scale of that map, and I have a 17 if you want to come look at it, you
18 scale here, is -- as I read it, it's an inch 18 can, but I'm putting the small end at
19 and 3/16ths per mile. Can you see that up 19 one X, and I got three and three
20 there? Check it and see if I'm right. 20 quarters based on his marks, which is
21 MR. BRUNO: 21 why, you know, it's kind of silly,
22 Bill, we can stipulate to this. 22 because if you move the mark a little
23 MR. TREEBY: 23 bit you're going to change it by a
24 Okay, you stipulate -- will you 24 large distance. Right, Bill?
25 stipulate that it's two miles? 25 MR. TREEBY:
3 (Pages 371 to 374)

Page 375 Page 377
1 No, I don't agree. Would you 1 A. Yes, sir.
2 give the witness back the exhibit, 2 Q. And in fact, part of your job was to
3 please? 3 demolish a portion of the floodwall.
4 MR. BRUNO: 4 A. Yes, sir.
5 So that's -- 5 Q. I read somewhere, but correct me if
6 MR. TREEBY: 6 I'm misremembering it, that it was about three
7 Mr. Bruno, would you give the 7 hundred lineal feet of the floodwall that was
8 witness back the exhibit? 8 demolished.
9 MR. BRUNO: 9 A. No, sir.
10 One second. I get -- 10 Q. That's not correct?
11 MR. TREEBY: 11 A. That's inaccurate.
12 Would give the witness back the 12 Q. How much of the floodwall was
13 exhibit? 13 demolished?
14 MR. BRUNO: 14 A. It was a forty feet section. We had
15 One second. I get 2.75 -- 15 to come through the wall with three 84-inch
16 MR. TREEBY: 16 diameter tubes, and those three tubes were
17 I would ask you, Mr. Bruno, to 17 pretty close in proximity. So it was nowhere
18 give the witness back the exhibit. 18 near three hundred feet of wall we took out.
19 MR. BRUNO: 19 Q. Okay. And how much of the floodwall
20 I get almost 2-point -- I would 20 was demolished in order to put in the access
21 say 2.8 miles is what I would get. 21 gate? Wasn't there an access gate to the
22 MR. TREEBY: 22 project?
23 Okay. Well, that's fine with me. 23 A. There was an access road. The road
24 2.8 miles. 24 was a diversionary road that went around the
25 EXAMINATION BY MR. TREEBY: 25 floodwalls and come through the floodwall for
Page 376 Page 378
1 Q. Do you agree with that? Do you agree 1 traffic.
2 with Mr. Bruno? 2 Q. Right. And that portion of it that
3 A. I agree with Mr. Bruno, and in 3 came through the floodwall required a
4 accordance with this map, that's what that 4 demolition of the floodwall, did it not?
5 distance is, which is a different map than what 5 A. That's correct.
6 I looked at yesterday. 6 Q. Okay. And how much of the floodwall
7 Q. Right 2.8 miles. 7 was demolished for that?
8 A. Yes, sir. 8 A. Without --
9 Q. Okay. That's all with that exhibit. 9 Q. Approximately?
10 That's all I need. 10 A. Approximately maybe, I think -- I'm
11 Now, let me ask you this: And if you 11 saying twenty something feet.
12 could hand me back my scale. 12 Q. Okay. And how deep was the excavation
13 A. Yes. 13 that you did?
14 Q. Thank you so much. 14 A. For the access road?
15 How, if you would, best you can 15 Q. No. No. How deep was the excavation
16 estimate -- and you probably have a pretty good 16 that you did for the Dwyer Road project?
17 recollection of it. The excavation that you 17 A. Somewhere in the proximity of 26 to
18 did at the Dwyer Road project? 18 maybe 30 feet.
19 A. Yes, sir. 19 Q. Deep?
20 Q. The closest end of that excavation to 20 A. Yes, sir.
21 the floodwall, how close was it to the 21 Q. Was that below the grade --
22 floodwall? 22 A. Yes, sir.
23 A. It was through the floodwall. 23 Q. -- of the batture?
24 Q. Okay. So it went all the way through 24 A. That's below the grade of the existing
25 the floodwall. 25 batture.
4 (Pages 375 to 378)

Page 379 Page 381
1 Q. Okay. Now, Mr. Bruno raised this 1 order to express my, um -- upgrade in rank I
2 already this morning to some extent: You have, 2 was a dual enrollment in mathematics, taking a
3 if I remember correctly, but you can testify to 3 lot of the courses that I already had from UNO
4 this from your CV, that you went to -- you've 4 and just transferring them over to Excelsior
5 gone to at least two different universities; is 5 towards a mathematics degree, with a couple of
6 that correct? 6 courses left to complete a degree in
7 A. That's correct, yes, sir. 7 mathematics.
8 Q. One of them you, I believe, attained 8 Q. Okay. Now, on this Dwyer Road
9 the status, if you will, of a junior. Is that 9 project, you, or your firm, and -- well, did
10 correct? 10 your firm hire any geotechnical experts?
11 A. At that time, when that résumé was 11 A. Yes, sir. Mr. J. Michael Dixon is the
12 made, yes, it was a junior status. 12 expert.
13 Q. And what university was that? 13 Q. That was Mr. Dixon?
14 A. That's the University of New Orleans. 14 A. We talked about him thoroughly
15 That's on the first CV. During my early on 15 yesterday.
16 curriculum. On the second CV I attained the 16 Q. He was a geotechnical soils type
17 status of a senior. 17 expert?
18 Q. Okay. And what was the course of 18 A. He was a geotechnical expert.
19 study you took at the University of New 19 Q. And would I be correct to say you do
20 Orleans? 20 not consider yourself a geotech expert?
21 A. Civil engineering. 21 A. No, I'm not a geotech expert.
22 Q. And how did you come to the conclusion 22 Q. Okay. I show you a document that we
23 that you had the status of a junior at that 23 have marked -- that I've marked McElwee Exhibit
24 point from UNO? 24 38. And I will represent to you, and subject
25 A. Looking at my transcript and my 25 to being corrected by Mr. Bruno and Mr. Joanen
Page 380 Page 382
1 records of grades during that process. 1 or anyone else, and I hope I'm right in what
2 Q. Do you have that transcript, by the 2 I'm saying, that I have extracted from the
3 way? 3 Independent Levee Investigation Team report the
4 A. I don't have it here, but I do have 4 pages that refer to you.
5 it, yes. 5 A. Yes, sir.
6 Q. How many hours did you take in civil 6 Q. Have you read those pages before, that
7 engineering? 7 refer to you?
8 A. Um -- there's a hundred and 8 A. Um -- as I mentioned to you yesterday,
9 twenty-something hours. I'm thirty hours shy 9 the first time I read it was when you requested
10 now. 10 discovery documents, and you mentioned in your
11 Q. How many shy were you when you 11 request that McElwee was in the levee
12 classified yourself as a junior? 12 investigation team report. Up until you
13 A. I'd have to look at my transcript. I 13 notified me via that, I never knew it was
14 can't answer that right now. 14 there. I didn't know.
15 Q. Okay. 15 Q. But after I -- I understand the
16 A. And I didn't classify myself. I mean, 16 timing, but after I notified you am I correct
17 it was the university telling me on that 17 that you in fact have read those pages that
18 academic record what my status was. 18 refer to you?
19 Q. Where is Excelsior College? Albany, 19 A. Yes, I went specifically the Page
20 New York, it says. 20 6-18, and I saw McElwee Construction, and I
21 Are you attending there in person, or 21 was --
22 did you attend there in person? 22 Q. Okay. And can you remember looking
23 A. No, not actually. Excelsior College 23 for any pages that had your name on them?
24 does online courses and things like that, and 24 A. Prior to that request for discovery?
25 at the time I was in the National Guard, and in 25 Q. No, no. I'm saying at any time.
5 (Pages 379 to 382)

Page 383 Page 385
1 Including after that. 1 for you yesterday.
2 A. Yes. Yes. Afterwards. I went 2 Q. And I did ask about telephone
3 straight to this page. You referred it in your 3 conversations. I have not and I'm not going
4 request for discovery, and I went to that page 4 the sit here and go through and say, what did
5 and saw McElwee. I haven't really looked 5 you remember on this day and that day. I'm not
6 through any of the rest of the report to see if 6 going to do that.
7 there was McElwee anywhere else, but I did find 7 A. Yes, sir.
8 that page, Page 6-18. 8 Q. That would be fruitless. But I did
9 Q. Okay. I have tried to elicit from 9 ask you whether in any of those telephone
10 you, both in documents and we have not yet been 10 conversations Dr. Bea told you he was recording
11 able to get and review the IKON documents 11 the conversation, and you said no.
12 because, as you know, I just learned about this 12 A. He never told me that he was recording
13 other CD that you're going to provide me, or 13 the conversation.
14 that is now available to me, yesterday 14 Q. Okay. If you look at the map that I
15 afternoon, and I have not yet been through 15 gave you, which is Exhibit 36, you have marked
16 them. Okay? So with that exception, I have 16 Florida Avenue?
17 tried to look at everything that you have given 17 A. Yes, sir.
18 to me, and I've listened carefully to your 18 Q. And I'm sure you can see, down to the
19 testimony regarding your communications with 19 south of that, the Claiborne Avenue bridge.
20 Bob Bea. 20 A. Yes, sir.
21 Do you know of any communications that 21 Q. Okay. I can represent to you that the
22 we have not discussed or I've not asked you 22 southern -- there were two breaches in the
23 about between you and Bob Bea? 23 floodwall as a result of Hurricane Katrina, or
24 A. Written communications, you have them 24 during Hurricane Katrina, between those two
25 all. I mentioned yesterday, and I'll say it 25 points.
Page 384 Page 386
1 again today, Dr. Bea and I talked on the 1 A. Yes, sir.
2 telephone quite a bit. I have had a chance 2 Q. One is known as the northern breach,
3 since yesterday to look at the time frame. I 3 one is known as the southern breach.
4 can't nail specifics down, but it was the later 4 Are you familiar with that terminology
5 part of 2005 Dr. Bea and I began to speak, 5 and those kind of -- generally, at least, those
6 around October, a little before then. And I 6 locations of those breaches?
7 say a little as maybe a week or two. We held 7 A. As you defined breaches in that
8 some extensive telephone conversations during 8 particular section I'm familiar with that, but
9 that time frame. I haven't looked at the 9 when you said breach to me, breach and any
10 telephone records. I did find out that the -- 10 overtopping and anywhere in the levee system
11 as time evolved, in the January, 2006 time 11 throughout New Orleans is what I was thinking
12 frame, I think it was close around January 16 12 of yesterday.
13 or 17th, McElwee Brothers reserved a conference 13 Q. Right. But I'm talking now in those
14 room at the Rockwood Inn Suites in Hammond, 14 two areas. You kind of generally know where
15 Louisiana, to meet with Dr. Bea initially. 15 those two breaches were.
16 That was the first meeting -- face-to-face 16 A. Yes, sir.
17 meeting. Um -- and then I looked at the other 17 Q. Okay. Am I correct you did not ever
18 time frame, and my daughter's birthday, 18 tell Professor Bob Bea that you dewatered an
19 December 12th, 2006, was the second meeting. 19 excavation immediately north of the southern
20 We've talked on the phone, um -- quite a bit 20 breach in the Inner Harbor Navigational Canal
21 from the what, third quarter of 2005 up until 21 in the East Bank Industrial Area that we've
22 now, on telephone, and then with the 22 just described?
23 communications that I've given to you earlier 23 A. I can tell you I told Dr. Bea we
24 with the CD at IKON. And still until recently 24 excavated at Dwyer Road. The discussions of
25 with the IKON document disk I said is available 25 anything else I can't answer to that. But I
6 (Pages 383 to 386)

Page 387 Page 389
1 can tell you we excavated at Dwyer Road and he 1 that I get an answer to my question. You could
2 was well informed of that. 2 have encountered underseepage and ponding of
3 Q. And just to make sure, isn't it true 3 waters without doing any work, just driving
4 that you did not tell Dr. Bea that you had 4 down the street. In fact, you've told us
5 witnessed massive underseepage flow through the 5 because of your training --
6 marsh deposits that were not adequately cut off 6 A. Yes, sir.
7 immediately north of the southern Inner Harbor 7 Q. -- when you're driving along River
8 Navigational Canal breach? 8 Road you notice ponding and underseepage.
9 A. I can attest to you that where we 9 A. Yes, sir.
10 excavated at Dwyer Road, there was seepage. 10 Q. So my question, listen carefully to
11 That's all I discussed with him. 11 it, you did not tell Professor Bea, did you,
12 Q. But I just need to make sure that you 12 that you encountered underseepage and ponding
13 did not tell him that you had witnessed massive 13 of waters along the Inner Harbor Navigational
14 underseepage flow through the marsh deposits 14 Canal frontage at the west edge of the Lower
15 that were not adequately cut off immediately 15 Ninth Ward, did you?
16 north of the southern Inner Harbor Navigational 16 A. I have to answer that with an
17 Canal breach. 17 abundance of caution. I've been in the Ninth
18 A. I want to answer this with an 18 Ward area quite a few times, and I have been
19 abundance of caution. I told you Wednesday 19 around in those areas prior to the breaches,
20 several telephone conversations. You asked me 20 and I don't know if I ever told him about
21 about him taping me or whatever, and I can't 21 those. I can't recollect that I said that, no.
22 say what I've said at that time. I don't want 22 I can't.
23 to sit here and tell you I didn't say that and 23 MR. BRUNO:
24 I possibly said it in a telephone conversation. 24 That's fine. That's all he has
25 I'm not saying I did or I didn't. I'm just -- 25 to say. If he says he can't
Page 388 Page 390
1 I don't know. 1 recollect --
2 Q. By the way, I told you yesterday, I'd 2 MR. TREEBY:
3 just want to remind you, I don't have any such 3 Your commentary is unnecessary.
4 tapes. I don't know of any such tapes. Okay. 4 MR. BRUNO:
5 A. I hate to incriminate myself and then 5 No. I'm not going to let you
6 tapes pop up and that's what's on the tapes. 6 berate this witness? Okay?
7 And I'm not aware of that at this time. 7 MR. TREEBY:
8 Q. You know that the Lower Ninth Ward is 8 Let's get the magistrate on the
9 below the Gulf Intracoastal Waterway do you 9 phone.
10 not? 10 MR. BRUNO:
11 A. Yes. 11 That's a good idea. Damned good
12 Q. Okay. Did you not tell Professor Bea, 12 idea. Get him on the phone.
13 did you, that you encountered underseepage and 13 And I also want you to mark this
14 ponding of waters along the Inner Harbor 14 part of the deposition. I'm want to
15 Navigational Canal frontage at the west edge of 15 read back the last ten questions to
16 the lower Ninth Ward, did you? 16 the judge.
17 A. I don't recall telling him that, no. 17 MR. TREEBY:
18 Q. If you had told him that, that would 18 I've got it.
19 not be true, would it? 19 MR. BRUNO:
20 A. I've answered your discovery requests. 20 Good.
21 I didn't do any work in that area, period. 21 (Whereupon the magistrate was
22 McElwee Brothers didn't do any work in that 22 called.)
23 area. 23 MR. TREEBY:
24 Q. Encountering underseepage might not 24 Your Honor, he also needs to
25 involve you doing work, so I need to be careful 25 read -- or Joe, why don't you come
7 (Pages 387 to 390)

Page 391 Page 393
1 look over my shoulder, because I have 1 telephone conversations. You asked me
2 the transcript here. I will read the 2 about him taping me or whatever, and I
3 transcript from the point Joe wanted 3 can't say what I've said at that time.
4 it read, because we talked about it 4 I don't want to sit here and tell you
5 before we got you on the line. And 5 I didn't say that and I possibly said
6 I'm concerned -- I can tell you my 6 it in a telephone conversation."
7 concern, but then I'll just read it. 7 MR. TREEBY:
8 My concern is that -- and Joe doesn't 8 And then he continues, "I am not
9 think this is a critical point of the 9 saying I did or I didn't, I'm just --
10 deposition, to me it is. We're almost 10 I don't know."
11 finished with this witness. It's 11 Question: "By the way, I told
12 Melvin McElwee who was referred to by 12 you yesterday, just to remind, I don't
13 Professor Bea in the what Professor 13 have any such tapes. I don't know of
14 Bea calls the Independent Levee 14 any such tapes. Okay?"
15 Investigation Team report as a source 15 Answer: "I let --"
16 for information that he uses in his 16 THE REPORTER:
17 report. And so I'm almost finished 17 "I hate to incriminate myself and
18 with the deposition, my part of the 18 then tapes pop up and that's what's on
19 deposition, and beginning -- here's 19 the tapes. And I'm not aware of that
20 where Joe says we should begin, and 20 at this time."
21 it's fine with me: My question -- 21 MR. TREEBY:
22 these are my questions and his 22 Question: "You know that the
23 answers -- I'm sorry, the witness's 23 lower Ninth Ward is below the gulf
24 answers. 24 intracoastal waterway, do you not?"
25 "And just to make sure, isn't it 25 Answer: "Yes."
Page 392 Page 394
1 true that you did not tell Dr. Bea 1 Question: "Okay. Did you not
2 that you have witnessed massive 2 tell Professor Bea -- you did not tell
3 underseepage flow through the marsh 3 Professor Bea, did you, that you
4 deposits that were not adequately cut 4 encountered underseepage and ponding
5 off immediately north of the southern 5 of waters along the Inner Harbor
6 Inner Harbor Navigational Canal 6 Navigational Canal frontage at the
7 breach." 7 west edge of the Lower Ninth Ward, did
8 Answer: "I can attest to you 8 you?"
9 that where we excavated at Dwyer Road 9 Answer: "I don't recall telling
10 there was seepage, that's all I 10 him that, no."
11 discussed with him." 11 Question: "If you had told him
12 Question: "But I just need to be 12 that, that would not be true, would
13 sure that you did not tell him that 13 it?"
14 you had witnessed massive underseepage 14 Answer: "I've answered your
15 flow through the marsh deposits that 15 discovery requests. I didn't do any
16 were not adequately cut off 16 work in the area, period. McElwee
17 immediately north of the southern 17 Brothers didn't do any work in that
18 Inner Harbor Navigational Canal 18 area."
19 breach." 19 THE REPORTER:
20 Answer: "I want to answer this 20 Question: "Encountering
21 with an abundance of caution. I told 21 underseepage might not involve you
22 you Wednesday," and there the 22 doing work, so I need to be careful
23 transcript is not -- 23 that I get an answer to my question."
24 THE REPORTER: 24 MR. TREEBY:
25 "I told you we had several 25 Question (cont'd.): "You could
8 (Pages 391 to 394)

Page 395 Page 397
1 have encountered underseepage and 1 And Joe says, "I'm not going to
2 ponding of waters without doing any 2 let you berate this witness."
3 work, just driving down the street. 3 And Mr. Treeby says: "Let get
4 In fact, you've told us because of 4 the Magistrate."
5 your training --" 5 MR. TREEBY:
6 Answer: "Yes, sir." 6 Yeah. Basically, it was, in my
7 Question: "When you're driving 7 judgment, Your Honor, was drying to
8 along River Road you notice ponding 8 instruct the witness that he didn't
9 and underseepage." 9 need to tell me any more.
10 Answer: "Yes, sir." 10 MR. BRUNO:
11 Question: "So my question, 11 Come on.
12 listen carefully to it, you did not 12 THE COURT:
13 tell Professor Bea, did you, that you 13 I'm not going to conclude that he
14 encountered underseepage and ponding 14 was trying to instruct the witness not
15 of waters along the Inner Harbor 15 to say any more. Okay? First of all,
16 Navigational Canal frontage at the 16 the witness has answered your
17 west edge of the Lower Ninth Ward, did 17 question. All right? So it's time
18 you?" 18 for your next question.
19 Answer: "I have to answer that 19 MR. TREEBY:
20 with an abundance of caution. I've 20 And I was headed to the next
21 been in the Ninth Ward area quite a 21 question, but I don't want to --
22 few times, and I have been around in 22 THE COURT:
23 those areas prior to the breaches, and 23 And second of all, Mr. Bruno, if
24 I don't know if I told him about 24 you want to make an objection, just
25 those. I can't recollect that I said 25 say objection, asked and answered,
Page 396 Page 398
1 that, no, I can't." 1 period.
2 MR. TREEBY: 2 MR. BRUNO:
3 "That's fine." And then -- 3 Yes, Your Honor.
4 Isn't this Mr. Bruno? 4 THE COURT:
5 THE REPORTER: 5 And that way we won't have any
6 That's Mr. Bruno. 6 question about whether you are making
7 MR. TREEBY: 7 a suggestive or argumentative
8 "That's fine. That's all he has 8 objection. Okay?
9 to say." 9 MR. BRUNO:
10 And I said -- I'm sorry. It got 10 Yes, of course.
11 a little -- 11 JUDGE WILKINSON:
12 MR. BRUNO: 12 When you add the three or four
13 And you said you wanted to call 13 extra words that you just added, it
14 the judge. 14 starts to look like you're making an
15 MR. TREEBY: 15 improper objection under Rule
16 No. What does it say? 16 30(c)(2). So my suggestion is don't
17 THE REPORTER: 17 add those extra three or four words,
18 "If he says I can't recollect --" 18 just say objection, asked and
19 MR. TREEBY: 19 answered. Okay?
20 That's Mr. Bruno again. That's 20 MR. BRUNO:
21 not me. 21 Yes, of course.
22 THE REPORTER: 22 JUDGE WILKINSON:
23 That's Mr. Bruno again. 23 Now --
24 And Mr. Treeby: "Your commentary 24 MR. TREEBY:
25 is not necessary." 25 Thank you, Your Honor.
9 (Pages 395 to 398)

Page 399 Page 401
1 THE COURT: 1 reached, then I'm going to have a
2 Based on what you've just read 2 different opinion.
3 me, Mr. Treeby, he's answered your 3 MR. TREEBY:
4 question. Go to the next one. 4 If your Honor please, just in an
5 MR. TREEBY: 5 abundance of caution, it should be
6 I am going to my next one, but 6 noted that Mr. Bruno -- I was going to
7 all I needed was that instruction 7 notice this deposition, Mr. Bruno did
8 because I think that will solve our 8 notice the deposition, and he's
9 problem. That's what we did 9 entitled to, and he took three hours
10 yesterday, just objection. And unless 10 and forty-six minutes, and I've been
11 Mr. Bruno asks me for an explanation 11 going a lot less time than he did
12 of my objection, I just said objection 12 on --
13 leading, or whatever the objection 13 MR. BRUNO:
14 was. 14 Bill, we're almost a seven hours.
15 THE COURT: 15 Now do the math. Okay? Three and a
16 And for these, that's all I want 16 half and three and a half is what?
17 you to do. Okay? 17 Seven.
18 MR. TREEBY: 18 MR. TREEBY:
19 Thank you. 19 I have 3:46.
20 THE COURT: 20 MR. BRUNO:
21 All right. 21 Fine. I had fifteen minutes more
22 MR. BRUNO: 22 than you, so don't act like I've had
23 Judge, while I've got you, 23 all this extra time. I'm just trying
24 there's another issue. 24 to make the point that the government
25 MR. TREEBY: 25 hasn't had a chance to ask a single
Page 400 Page 402
1 Is this on the record? 1 question, and we're very likely to go
2 MR. BRUNO: 2 beyond seven hours. Okay?
3 Yes, this is on the record. 3 MR. TREEBY:
4 Judge, I want to just address this now 4 You just wanted the Court to be
5 because we're about seven hours? 5 aware of the circumstances.
6 Close. Let's just say we're close to 6 MR. BRUNO:
7 seven hours without getting into it, 7 And I'm making you aware of it
8 Judge, and the United States has not 8 because I'm doing a deposition of
9 had a chance to ask any questions. I 9 Mr. Treeby 's client on Saturday in
10 just want to let you know about -- 10 Coco Beach, I know you won't be
11 because the CMO says there's a maximum 11 around, and they've told me seven
12 of seven hours, and I'm quite certain 12 hours is all you get. And, you know,
13 that we can work this out among 13 because this is a 30(b)(6), I don't
14 ourselves, but I just wanted to alert 14 know -- I'm going to work my darnedest
15 you that there will be times when we 15 to finish before seven, I can assure
16 may go or may need to go beyond seven 16 you, I want to go get a drink, but if
17 hours. Is that -- 17 we can't I want to alert you that it
18 THE COURT: 18 may be a problem. That's all I'm
19 Well, if a stipulation can be 19 doing.
20 reached that you go beyond it, it's 20 MR. TREEBY:
21 all right with me. 21 And we're not asking any
22 MR. TREEBY: 22 questions of that witness.
23 Yeah. The circumstances here -- 23 THE COURT:
24 JUDGE WILKINSON: 24 All right.
25 But if no stipulation can be 25 MR. TREEBY:
10 (Pages 399 to 402)

Page 403 Page 405
1 Thank you. 1 that he and his parents had lived in New
2 MR. BRUNO: 2 Orleans and had been affected by Hurricane
3 Thank you, judge. 3 Betsy, is that right?
4 (End of conference with the 4 A. I recall him telling me someone was
5 court.) 5 affected. Who? I can't remember all the
6 MR. BRUNO: 6 details.
7 So your question has been 7 Q. Okay. Now, written in your written
8 answered, which is the point I made. 8 response to our discovery request Number 6 in
9 Let's go. 9 the subpoena, you -- and you want to find that?
10 MR. TREEBY: 10 A. Is this Exhibit 17 we're looking at?
11 Make your objection. 11 Q. You have to forgive me, I don't
12 MR. BRUNO: 12 remember the exhibit number, but it's your
13 I will make my objections, Bill. 13 written response to our discovery. Okay?
14 MR. TREEBY: 14 A. I think I had two -- only one response
15 Thank you. 15 or two responses?
16 MR. BRUNO: 16 Q. I think that's the written response.
17 Okay? And you will not ask the 17 A. Yes, sir.
18 question fifty thousand times, as the 18 Q. And it would be Request Number 6, your
19 Court has just indicated to you. All 19 response to Request Number 6.
20 right? You've got your answer. 20 A. Yes, sir. I have it in front of me.
21 EXAMINATION BY MR. TREEBY: 21 Q. You indicated that, and I think I'm
22 Q. Now, again, Mr. McElwee, I'm 22 quoting, quote, McElwee Brothers has conducted
23 addressing the same subject but this is a 23 dewatering procedures along the Industrial
24 different question: You did not tell Professor 24 Canal 's east bank north of the Florida and
25 Bea, did you, that you had significant problems 25 Claiborne Avenues, close quote.
Page 404 Page 406
1 with dewatering of excavations along this same 1 You see that?
2 frontage at the west edge of the Lower Ninth 2 A. Yes, sir.
3 Ward, did you? 3 Q. It's not clear to me in that response,
4 A. I do not recollect telling Dr. Bea 4 but I think it is based on your testimony and I
5 that question. I don't recall telling him 5 just need to confirm it, you were referring
6 that. 6 there to the Dwyer Road pumping station
7 Q. But you didn't do any excavations at 7 project, isn't that correct?
8 the west edge of the Lower Ninth Ward, isn't 8 A. I was answering your question and
9 that correct? 9 referring to -- I didn't do any excavation in
10 A. That is -- 10 those areas, because your question
11 MR. BRUNO: 11 specifically -- can I go back to your -- I
12 Asked and answered. 12 think on your request your question was asking
13 A. Correct. 13 me about work in that area between Florida and
14 MR. BRUNO: 14 Claiborne Avenues, and I answered that I didn't
15 Four times. 15 perform work between Florida and Claiborne
16 MR. TREEBY: 16 Avenues, but the work was north of those areas,
17 Let's go off the record. 17 which was the Dwyer Road project.
18 (Off the record.) 18 Q. Okay. That's all I need to know. So
19 EXAMINATION BY MR. TREEBY: 19 what you were referring to in your response was
20 Q. You understood, did you not, from 20 the Dwyer Road pumping station project.
21 talking to Professor Bea that he was familiar 21 A. Yes, sir.
22 with New Orleans geography, right? 22 Q. Thank you.
23 A. I understood that he was -- yes, he 23 And similarly, in your response to
24 told me he lived in New Orleans. 24 Request Number 7 of the subpoena, if you would
25 Q. And in fact he told you, did he not, 25 look at it --
11 (Pages 403 to 406)

Page 407 Page 409
1 A. Yes, sir. 1 Canal, close quote.
2 Q. -- you state -- and by the way, I'm 2 A. That's a fact.
3 not contending you didn't answer my request 3 Q. And that's your testimony.
4 here. I'm just trying to clarify what you 4 A. Yes.
5 meant by your answer. Okay? 5 Q. Have you ever been charged with a
6 A. Yes, sir. 6 crime?
7 Q. Quote, McElwee Brothers has conducted 7 A. No, sir.
8 excavations along the Industrial Canal 's east 8 Q. In fact, recently you were charged
9 bank north of Florida and Claiborne Avenues, 9 with assault in Tangipahoa parish; is that
10 close quote. And that, as well, was referring 10 correct?
11 to the Dwyer Road pumping station job, is that 11 A. There's allegations of assault. I
12 right? 12 haven't been --
13 A. Yes, sir. 13 Q. Charged.
14 Q. You need to wait until I finish. 14 A. Charged with assault. Aggravated
15 A. I'm sorry. 15 assault, yes.
16 Q. That way the court reporter can get 16 Q. Is that pending? Is that matter
17 both of us on the record. 17 pending somewhere?
18 And you have a similar response to our 18 A. It's pending. I have an arraignment
19 Request Number 8 in the subpoena. And I'm 19 on May the 9th or something like that.
20 quoting from your response: McElwee Brothers 20 Q. And someone alleged, did they not, if
21 has reported underseepage, ponding or pooling 21 you know, if you know, that you had -- in
22 of waters along the Industrial Canal 's east 22 connection with a meeting that was taking place
23 bank north of Florida and Claiborne Avenues, 23 of the advisory committee of the Tangipahoa
24 close quote. 24 Parish School Board, alleged that you had
25 You see that? 25 pulled out a gun.
Page 408 Page 410
1 A. Yes, sir. 1 A. What is what the person stated.
2 Q. And that, as well, was referring to 2 Q. And when you were I guess arraigned
3 experience you gained at the Dwyer Road 3 for that charge --
4 project, is that correct? 4 A. I haven't been arraigned yet. I'm
5 A. That's correct. 5 thinking arraignment is when I go in front --
6 Q. To the best of your recollection, did 6 Q. Were you arrested?
7 you ever tell Professor Bea that residents of 7 A. I'm not familiar with criminology
8 the neighborhood near the northern Inner Harbor 8 terms. Let me --
9 Navigational Canal breach, which is between N. 9 Q. I'm not either.
10 Claiborne Avenue and Florida Avenue, had 10 A. The reason I'm answering this is, the
11 reported problems with seepage at the inboard 11 police -- the detective came to the house and
12 toe? 12 requested to talk to me, and I went and turned
13 MR. BRUNO: 13 myself in.
14 Object to form. 14 Q. Okay.
15 A. I can't recollect making that 15 A. And at that time they said, look,
16 statement. 16 we're going to walk you through and you'll go
17 EXAMINATION BY MR. TREEBY: 17 home. And that's what happened. I signed
18 Q. Okay. In fact, your written response 18 myself out on my own recognizance. So have I
19 to the subpoena, Request Number 10, states, 19 been arrested? I guess the definition is --
20 correct me if I'm wrong, quote, McElwee 20 did they come by handcuff me in front of
21 Brothers have not received any complaints or 21 anybody? No.
22 expressions of concern from residents of the 22 Q. That was not -- you went and turned
23 Lower Ninth Ward and/or St. Bernard Parish 23 yourself in. I understand that.
24 neighborhoods concerning underseepage, ponding 24 A. Yes, sir.
25 or pooling of waters along the Industrial 25 Q. In fact, when you did, they indicated
12 (Pages 407 to 410)

Page 411 Page 413
1 to you that there was an outstanding warrant 1 I asked for it first.
2 for you in connection with a charge for the 2 A. You both asked for it. And this is
3 issuance of bad checks, is that -- 3 the course that was taken by the Corps of
4 A. Yes, sir. They sure did. In fact, 4 Engineers earth work quality verification, the
5 that has been cleared because they had the 5 three-inch binder.
6 wrong person. I went to them and asked them to 6 (Brief interruption.)
7 show me a copy of the check and the charge, and 7 A. Located in front of Mr. Bruno is the
8 the sheriff department said -- they showed it 8 three-inch binder referenced yesterday in my
9 to me, and I laughed and I showed them my 9 deposition of the earth work quality
10 military ID and the Social Security number on 10 verification course sponsored by the Corps of
11 the check, it didn't match, and they -- I asked 11 Engineers. I will have that document -- that
12 for a copy of the charge sheet. They say, we 12 binder delivered to IKON for copies to anyone
13 can't give you that but we'll give you a copy 13 in this deposition room and on the Internet at
14 of the check. 14 their expense.
15 Q. Glad to hear that. Thank you for 15 MR. TREEBY:
16 answering my questions. 16 And my reservation would apply to
17 A. Yes, sir. 17 that, too, although I doubt it would
18 Q. The only thing I would do at this 18 require any questions.
19 point is reserve the right, and I hope it won't 19 I tender the witness.
20 be necessary, I don't think it will be, but I 20 (Brief recess.)
21 have not seen the documents that you referred 21 EXAMINATION BY MR. LEVINE:
22 to yesterday that we're going to access at 22 Q. Mr. McElwee, my name is Paul Levine.
23 IKON. If any of them are things that I didn't 23 I'm an attorney for the United States. I
24 know about before, I reserve the right to 24 apologize if I say your name wrong.
25 re-notice the deposition. And I'm sure it will 25 A. That's okay.
Page 412 Page 414
1 reach opposition, but anyway -- hopefully we'll 1 Q. I just want to cover a couple of
2 never have to deal with that, but I wanted to 2 pieces of your testimony from yesterday.
3 reserve my right on the record. 3 Yesterday I think you were talking about some
4 A. Yes, sir, I do want to mention that -- 4 underseepage issues you had at the Dwyer Road
5 MR. BRUNO: 5 project. Is that correct?
6 Yeah, I'm going to get into to 6 A. That's correct, sir.
7 this. 7 Q. One of those issues was dewatering the
8 THE WITNESS: 8 project; is that correct?
9 You're going to get into that? 9 A. Yes, sir. That's correct, sir.
10 MR. BRUNO: 10 Q. And I think what you said is there was
11 When they're done. 11 a lack of data provided by the Corps.
12 EXAMINATION BY MR. TREEBY: 12 A. That is correct, sir.
13 Q. Well, there is apparently -- what are 13 Q. You said you didn't receive the soil
14 you referring to, you brought more -- 14 borings in a timely manner.
15 A. This is the three-inch binder that 15 A. I did not say it's the soil borings in
16 Mr. Treeby asked for. 16 a timely manner, there was some analysis
17 MR. BRUNO: 17 relative to the soils borings that I didn't
18 I asked for it. 18 receive.
19 MR. TREEBY: 19 Q. Okay. And whatever you received from
20 I asked for it. 20 the Corps, it lacked particle distributions?
21 MR. BRUNO: 21 A. Particle size distributions of the
22 I asked for this. 22 sand layers, yes, sir, we didn't get any data
23 MR. TREEBY: 23 on that. Or any information on that.
24 I did, too. 24 Q. And the data provided from the Corps
25 MR. BRUNO: 25 was too far from the excavation site.
13 (Pages 411 to 414)

Page 415 Page 417
1 A. One of the borings in the plans was 1 MR. BRUNO:
2 too far away from the T-wall. 2 (Tendering.)
3 Q. And I think you said that boring was 3 A. I'm sorry. I can't find it in here.
4 about 160 feet away from the T-wall? 4 EXAMINATION BY MR. LEVINE:
5 A. It was somewhere approximately 165. 5 Q. Let me mark this as Exhibit 39.
6 That's what the record reflects. 6 Do you mind passing me that copy
7 Q. And I believe you said, and correct me 7 really quickly?
8 if I'm wrong, that you need to be within about 8 (EXHIBIT 39 was marked for
9 100 feet to make any conclusions about the soil 9 identification and is attached hereto.)
10 quality in the area. 10 A. Yes.
11 A. That -- my recollection, that's what 11 EXAMINATION BY MR. LEVINE:
12 served me during that time, yes. 12 Q. Why did you obtain these borings?
13 Q. Okay. Now, once you received the 13 A. May I look over this and then give you
14 proper information from -- what you call the 14 an answer, sir?
15 proper information from Gore Engineering, you 15 Q. Sure.
16 were able to set your dewatering system up. Is 16 A. Okay. From looking at the cover
17 that correct? 17 letter, yes, this was Boring Number 1 when we
18 A. I'd like the go back and mention to 18 requested Gore to come out to do the boring was
19 you that I did mention Mr. Dixon used the worst 19 to assist with the dewatering, to complete the
20 case scenario in his design. That is how he 20 information not listed in the Corps of
21 completed the design for the dewatering system. 21 Engineers' initial boring.
22 The Gore boring came later during the problems 22 Q. Okay. And then you also obtained
23 with the cracked piles at the T-wall, when the 23 Boring Number 2 for that purpose. There
24 Corps came out and said, you cracked some 24 appears to be two borings on there. Turn to
25 piles, and we was like -- and McElwee was like, 25 Page -- I think it's Figure 1. It's four pages
Page 416 Page 418
1 how do you know piles are cracked? What did 1 in.
2 you make that determination from? 2 A. Yes, sir, there were two borings, B1
3 Q. That was a Gore boring obtained in 3 and B2, and I think there's a location on the
4 June, 2003. 4 Figure 1. Yes. Yes. That's correct.
5 A. That's correct. 5 Q. And those borings were to --
6 Q. And I believe you also obtained some 6 A. To assist.
7 soil borings from the Corps in December, 2001. 7 Q. -- help assist with the --
8 A. That is correct. On the, um -- west 8 A. Exactly.
9 end of the project we obtained a boring, yes, 9 Q. -- dewatering project.
10 we did. 10 A. Yes, sir. Yes, sir.
11 Q. And what was the purpose of those 11 (Brief interruption.)
12 borings? 12 EXAMINATION BY MR. LEVINE:
13 A. I'd have to look at the record to 13 Q. So after you obtained these borings,
14 answer that question for you exactly. 14 you were able to set up the dewatering system.
15 Q. Would you like a copy of the borings? 15 A. That is correct.
16 A. Yes. I think we have it in an exhibit 16 Q. Once you set up that dewatering
17 already. 17 system, it ran well, is that correct?
18 MR. LEVINE: 18 A. For that section, that's correct.
19 I'm sorry. I don't have that. I 19 Remember I told you there was four -- five
20 need a copy for me. 20 sections we dewatered? None of them at the
21 MR. BRUNO: 21 same time? This project was completed in
22 Here, take mine. You want '03 or 22 phases. At that phase, that phase worked well.
23 '01? 23 That's correct. That's Phase I.
24 MR. LEVINE: 24 Q. Did any of the other phases -- did you
25 '01. 25 have problems with any dewatering any of the
14 (Pages 415 to 418)

Page 419 Page 421
1 other phases? 1 place in that area. So I was out there one
2 A. Yes. Phase 4 was the area at the 2 afternoon while it was raining, in the rain,
3 T-wall where I mentioned to you we have photos 3 looking at the canal and looking at the T-wall
4 that show the organics and trees underneath the 4 so in case something was going wrong I could
5 T-wall, and the constant "tricklation" of water 5 put some plans into action to notify the Corps
6 inside Phase 4 -- it's Phase 4A I believe it is 6 and take and do something.
7 we called it. 7 Q. Now, you said you had some problems
8 Q. Okay. The other three phases, though, 8 with the trees in Phase 4 -- trees and soils in
9 you were able to dewater relatively well. 9 Phase 4?
10 A. I'd have -- I don't have the contract 10 A. Yes, sir.
11 documents in front of me, and believe me it's a 11 Q. Is that relating to the concrete
12 couple of file cabinets, I'd have to go back 12 piles?
13 and look before I just -- 13 A. When you say in relation -- no, that's
14 Q. Well, based on your memory today. 14 in relation to dewatering and excavation.
15 A. I know we had trouble at Phase 4A. We 15 Um -- the initial borings given by the Corps
16 had problems at Phase 3. That's where the 16 mentions some wood material -- some wood
17 sluice gate structure was, underneath the 17 material would be found in the subsurface.
18 railroad. We, um -- soils started caving in. 18 However, we found trees and tree trunks. Old
19 We almost lost the railroad section underneath, 19 swamps. That's what we was digging through.
20 during our jacking and boring. 20 And underneath the T-wall I mean. There was a
21 We also had some challenges out near 21 section we cut out, and we have some photos
22 the dolphin structure. 22 showing this organic materials sitting right
23 There was a couple of times during 23 where I think 12-1/2 feet of sheets were
24 some storm intervals that we had some great 24 underneath the existing T-wall, you could see
25 concerns with dewatering. Some storm 25 underneath that sheet some wood and tree
Page 420 Page 422
1 intervals. There was I think four storms that 1 trunks. That's where water was trickling in,
2 took place; Lili, Isidore, Hanna. Around that 2 in our excavated area, and we had some
3 time frame we was struggling with dewatering 3 challenges in trying to get that dewatered.
4 issues. And what in particular, I'd have to 4 Had to go back to Mr. Dixon to get him to
5 pull the documents out. And I think most of 5 revise our dewatering plan to accommodate the
6 the personnel that were on site at that time, 6 situation at hand.
7 like the superintendent and our quality control 7 Q. And once he revised that plan, were
8 could give you the answers to those issues. 8 you able to dewater the site effectively?
9 Q. Those were tropical storms. 9 A. We were able to get the site dewatered
10 A. That's correct. 10 and perform the work in that area, yes. And
11 Q. So there was heavy rainfall during 11 when you say effectively, you'd have to define
12 that time period? 12 whatever effectively is to you.
13 A. Tropical storm sitting in the gulf, 13 It was a continuous operation. It was
14 threatening New Orleans, coming over New 14 a little bit more than Phase I. Phase I was
15 Orleans that never were upgraded in winds, but 15 easy. I mean, once the water table was
16 they brought high tides and they brought, um -- 16 dropped, we put some crushed stone in to work
17 tremendous amounts of rain. In fact, there was 17 off as a platform for working bottom, and we
18 one storm, the National Guard was activated. I 18 didn't have major issues. The pump continued
19 can remember this vaguely. Not vaguely, I can 19 the roll, we didn't see ponding water in places
20 remember this clearly. I was activated with 20 once we got it down to the proper grade.
21 the National Guard at Jackson barracks, and I 21 But in areas like Phase 4A, and the
22 got away from my job at Jackson barracks to go 22 different other areas I mentioned, some of
23 look at the project because no one was out 23 those places we kept water and muck and we had
24 there and I wanted to see how the T-wall was 24 to just deal with the situation and the issue a
25 reacting and the flood protection we had in 25 little bit more than we would in Phase I.
15 (Pages 419 to 422)

Page 423 Page 425
1 Q. But you were able to get the site 1 and if you shut this line down you're shutting
2 dewatered so that you were able to excavate it. 2 down major sections of Jefferson Parish that
3 A. We were able to get the site dewatered 3 has utilities. So rather than getting into
4 to excavate. 4 those issues, we said we'll do jacking and
5 Q. I think you mentioned you had some 5 boring.
6 problems with the jack and bore operation, 6 The problem came up with the soils
7 dewatering that area? 7 when we got ready to go under the railroad
8 A. Yes. 8 track.
9 Q. What's the jack and bore operation? 9 Q. How far deep do you have to go into
10 A. Jack and bore operation is where 10 the ground to jack and bore?
11 you -- it's underground work, underground 11 A. Deep depth from the surface?
12 utility piping work, whereas instead of 12 Q. Yes.
13 excavating a hole, an open hole to do your work 13 A. Oh, we were, um -- 84 inches is -- I
14 and then close it back up, what you do is leave 14 can't do the math real quick. Is almost seven
15 the top surface soil surface, everything in 15 something feet, eight feet. Minus 24, so 24
16 place, and in effect you bore -- there's a b 16 minus 8, quick math on that, that was the
17 ore head that goes on the end of this 84-inch 17 depth. You want me to do that real quick?
18 pipe that -- you could walk through this pipe. 18 Q. I mean that's 7 feet.
19 You put a bore head on the front of it and it 19 MR. TREEBY:
20 cuts through the earth 's surface. When it's 20 84 is seven feet.
21 cutting the material out, the material is being 21 A. Seven feet.
22 transferred through the pipe backwards to the 22 EXAMINATION BY MR. LEVINE:
23 end of the pipe for disposal. And there's, 23 Q. Okay.
24 it's a railroad track that this setup sets on, 24 A. Seven feet for the top of the pipe.
25 and the jack behind the pipe pushes the pipe 25 And then there was the 84 inches down below it,
Page 424 Page 426
1 forward as the bore head cuts the earth 's 1 too, also.
2 surface. So in effect, you have the jack 2 Q. Let me show you a letter dated March
3 behind pushing the pipe, and your boring head 3 18th, 2003. It's not signed, but it's from
4 in front. That's why it's called jack and 4 Timothy Roth and it's from the Army Corps of
5 boring. 5 Engineers. We'll mark that as Exhibit 40.
6 I hope I've given a good enough 6 (EXHIBIT 40 was marked for
7 description for you to understand that. You do 7 identification and is attached hereto.)
8 that in areas where you -- I mean, it's done 8 EXAMINATION BY MR. LEVINE:
9 all over the world. In some places they've 9 Q. Now, I don't want to read this whole
10 jacked and bored underneath lakes and rivers to 10 letter, but in the first paragraph it says, in
11 run piping for oil lines, gas lines -- in this 11 the middle of the paragraph, it says, at each
12 case we did it after Phase 4 to keep from -- we 12 of the above, there have been discussions about
13 didn't want to have to remove the railroad 13 the requirement for dewatering of the area
14 track. It was a valued engineering change 14 through which you are jacking and boring
15 proposal we proposed to the Corps, we could do 15 84-inch welded steel discharge tubes. You have
16 it a lot cheaper than what they had designed it 16 promised that an adequate system will be
17 to be done in the initial plans, and we 17 installed and operated to sufficiently dewater
18 wouldn't have to deal with the overhead 18 this area.
19 transmission lines, we wouldn't have to bring 19 When there was the initial cave in,
20 in a crane and shut that line down. 20 did you have any dewatering system up and
21 In fact, we found out after we started 21 running?
22 working on the job that the line could not be 22 A. Um -- if my memory serves me
23 shut down as the Corps had indicated in the 23 correctly, yes. We were not supposed to
24 plans. Entergy said we got to keep this line 24 proceed with the jacking and boring until
25 on, this is a main line for Jefferson Parish, 25 Mr. Dixon given us that design. In that design
16 (Pages 423 to 426)

Page 427 Page 429
1 we put I think some piping along the, um -- 1 T-wall, yes, sir.
2 path, outside "extremiter" paths of the jacked 2 Q. And now the Corps wanted those piles
3 and bored area to drop the water table. 3 to be pulled.
4 Now, to answer your question 4 A. Initially. No.
5 accurately, I got to look at the job records to 5 Q. Eventually, though.
6 tell you when we installed the dewatering 6 A. Eventually. Because like I said,
7 versus the, um -- this letter. I don't know 7 Design Engineering, Mr., um -- his name was
8 where we're going with it, but, you know -- 8 mentioned yesterday -- Holtgreve walked into a
9 Q. So as best you can recall, you believe 9 meeting -- the Corps had told us that we could
10 that the dewatering system was set up prior to 10 cut the piles off and leave them in place.
11 the jack and boring operation. 11 Then we come back two weeks later to another
12 A. Yes, sir. The Corps made sure of 12 meeting, Mr. Holtgreve walked in and said, I
13 that. 13 never intended --
14 Q. But you would need to look at your 14 (Brief interruption.)
15 records to confirm that. 15 A. That was the initial position of the
16 A. That's correct. In fact, if it wasn't 16 Corps.
17 done, I think the core wouldn't have let us 17 EXAMINATION BY MR. LEVINE:
18 start doing jacking and boring period. 18 Q. And you wanted -- go ahead. I don't
19 Q. I think you also mentioned something 19 want to cut you off. Go ahead.
20 about dewatering issues with the dolphin 20 A. And we come back two weeks later at
21 structure? 21 another biweekly status meeting Mr. Holtgreve
22 A. Yes, sir. 22 walked in the meeting and said, I never
23 Q. What were those issues? 23 intended for the piles to be cut off. And the
24 A. Not with the dolphin structure. 24 Corps changed their position, said, well, the
25 There's a phase, the discharge structure it's 25 piles got to be pulled.
Page 428 Page 430
1 called in the plans. We installed the sheets 1 Q. You wanted to cut the piles.
2 in a U shape from the canal section. We had an 2 A. We wanted to cut the piles and leave
3 open area that, um -- it was adjacent to the 3 them in place. We felt strongly, and that's
4 canal and it stayed pretty much wet during that 4 from Mr. Dixon -- when I say we, McElwee
5 time frame. We got the water -- we got it 5 Brothers, Mr. Dixon, the geotechnical engineer
6 dewatered, and I think this was during the time 6 said, Melvin, if leave those soil conditions
7 frame when those storms came in. We had some, 7 the way they are, they are the strongest at
8 um -- we had some ground flow material inside 8 that point, leave the piles in the ground,
9 our excavated area that we had to wind up 9 those piles do not interfere with the new piles
10 re-excavating again. Some of the earth filled 10 to be installed.
11 up our CON/SPAN system. This box culvert 11 Q. After you cut the piles, you attempted
12 section about 36 feet wide, roughly 15 feet 12 to inject bentonite and there were some issues,
13 high, was full of sand and water that just 13 generally, with how you injected it, is that
14 flowed back into the, um -- box culvert canal 14 correct?
15 section. 15 A. I'd like to correct -- no, that's not
16 Q. And that was after the tropical 16 correct. After we cut the piles -- we never
17 storms? 17 cut the piles. We were instructed to pull the
18 A. That was after -- I don't know which 18 piles.
19 one or how many times it happened. I think I 19 Q. So after you pulled the piles, you
20 remember it happening twice. But this was 20 tried to inject bentonite and then there were
21 after the tropical storms, yes. 21 some issues with the bentonite. Just
22 Q. All right. I think another issue you 22 generally.
23 mentioned with underseepage was the concrete 23 A. That's correct.
24 piles under the T-wall. Is that correct? 24 Q. And then you believe that was -- you
25 A. Existing concrete piles under the 25 later on attempted to put new piles into the --
17 (Pages 427 to 430)

Page 431 Page 433
1 into those -- into that area where you pulled 1 resolve the problem, the Corps took this
2 the piles -- 2 position: Hey, the bottom line is we don't
3 A. That's correct. 3 care what you said, this is what the problem
4 Q. -- and there were what the Corps 4 is. You don't know what you're talking about.
5 called low blow counts. 5 Q. Exhibit 43.
6 A. That's correct. 6 I mean, I think the testing happened
7 Q. And I think you described this 7 after that, but that's okay, because it's not a
8 yesterday to Mr. Bruno, but the piles were just 8 major point to me.
9 going into the ground far too easily? 9 But let me give you a letter marked
10 A. Far too easily. 10 Exhibit 43. It's a letter dated June 20th,
11 Q. And it was your testimony that it was 11 2003, from Diane K. Pecoul, the contracting
12 the bentonite and the voids that were causing 12 officer at the Corps of Engineers, to McElwee
13 the low blow counts, is that correct? 13 Brothers. And again, this letter states that
14 A. That's correct. 14 we reviewed your testing results, and
15 Q. And now, there was also some cracks in 15 essentially -- I'll read the concluding line.
16 the piles, is that correct? 16 The key line on the second page of this letter
17 A. That's correct. 17 says, due to our aforementioned conclusions, we
18 Q. And it was your testimony that those 18 go not recognize your assertion of a differing
19 were just minor hairline cracks that weren't 19 site condition -- meaning that the soils, the
20 really major issues? 20 Corps didn't accept your -- let me strike all
21 A. That's correct. 21 that.
22 Q. I want to show you a letter dated 22 I guess the Corps' position, once
23 May 30th, 2003, addressed to McElwee Brothers 23 again, was that the soils was not the problem
24 from Diane K. Pecoul, the contracting officer 24 with the low blow counts and the cracks in the
25 at the Army Corps of Engineers. We're going to 25 piling. Is that correct?
Page 432 Page 434
1 mark this as Exhibit 42. 1 (EXHIBIT 43 was marked for
2 And again, I don't want to read this 2 identification and is attached hereto.)
3 whole letter, but I guess the import of this 3 A. Yes. That's Corps' position. I mean,
4 letter, and I know you disagree with it, is 4 they always tell you, hey, it's not that
5 that the Corps' position is that soil design 5 problem, it's something else. And that's one
6 factors were not to blame for the cracks in the 6 of these letters.
7 piles. Is that correct? 7 EXAMINATION BY MR. LEVINE:
8 (EXHIBIT 42 was marked for 8 Q. And you disagree with that.
9 identification and is attached hereto.) 9 A. Oh, strongly. I mean, I'm sure most
10 A. That is correct. That is the 10 of us contractors have always disagreed with
11 posturing and position they took at that time. 11 the Corps relative to these letters.
12 EXAMINATION BY MR. LEVINE: 12 Q. All right. Let me go back in time to
13 Q. And then after you received this 13 when you were an inspector for the Corps. You
14 letter you went out and conducted some 14 were a quality assurance inspector?
15 additional testing, is that right? 15 A. Quality assurance representative.
16 A. No, the additional testing took 16 Construction inspector is what it is, but
17 place -- this letter is in response to McElwee 17 quality assurance representative, yes. QAR.
18 Brothers' notification to the Corps of its 18 Q. And that was from -- I got it here, I
19 testing results. And I think I mentioned 19 think -- December 1988 through August, 1993; is
20 yesterday a conference that was held with its 20 that correct?
21 geotechnical engineer Gulf Coast Pre-Stress, 21 A. That's correct, sir.
22 Ice Equipment -- there were several personnel 22 Q. Did you do any inspection work on the
23 in a conference. After we met and had some 23 MRGO?
24 discussions, we presented our findings to 24 A. Yes. Mississippi River Gulf Outlet?
25 Ms. Pecoul. And instead of trying to find or 25 A lot of dredging along the MRGO entirely.
18 (Pages 431 to 434)

Page 435 Page 437
1 Q. From where to where? 1 Q. Okay.
2 A. From the Inner Harbor Navigational 2 A. That was around what, Bayou Bienvenue
3 Canal all the way out to -- I don't know how 3 locks? I think that's somewhere around there.
4 far the mile measurement is because we're going 4 I'm just pulling out names now.
5 out into open water in open areas. I'd have to 5 Q. Okay.
6 look at a map and say, look, it was this mile 6 A. And then there was another. There is
7 marker, and look at some of those records. We 7 an old fort out there that's sitting out in the
8 only identified it by, um -- station numbers 8 middle. It was in that area, because I
9 when I was in -- Mike Hooks did some of the 9 remember seeing the old fort. I was intrigued
10 dredging then, and that's a contractor that was 10 by that.
11 doing the dredging during that time. 11 Q. When you did your inspection work, did
12 Q. Did you do that inspection works in 12 you find any problems with underseepage while
13 the area of the MRGO that runs identical to the 13 you were doing that inspection work?
14 GIWW? 14 A. I'm -- I got to laugh at that, because
15 A. When you say identical, the MRGO runs 15 if you go out there, I mean, you're surrounded
16 almost perpendicular to it, so it doesn't run 16 by water and swamps, so it's kind of hard to
17 along it. The only portion of area I mentioned 17 tell you. The whole problem is underseepage.
18 yesterday where I was involved with some work 18 You know, the sheets, they only go down so far.
19 in dredging on the Inner Harbor Navigational 19 I mean, I don't know. All I did was drive
20 Canal was near the mouth of the Mississippi 20 sheet piling and pull up some muck along the
21 River. 21 sheet pile. I mean, it wasn't like the
22 Q. Okay. So you did some inspection work 22 lakefront where we were bringing some clay
23 on the Inner Harbor Navigational Canal. 23 embankment and compacting and use some
24 A. Yes, sir. 24 procedures to put the embankment in place.
25 Q. And that was with dredging. 25 All we had out there was just the
Page 436 Page 438
1 A. Yes, sir. 1 dredged material that had been dredged years
2 Q. And you did some work on the GIWW -- 2 ago, and the Corps would take it and put it up
3 A. Yes, sir. 3 against the sheet piles. So seeing a problem?
4 Q. -- as an inspector. 4 I really wasn't looking for one as an
5 A. Yes, sir. 5 inspector, I was just doing a job. I mean.
6 Q. And that was with dredging. 6 Q. So, not to put all your words into one
7 A. Yes, sir. 7 quick sentence, but yes, you saw underseepage
8 Q. And you did some work along the MRGO 8 out along the MRGO on that job, but that was
9 as an inspector. 9 expected.
10 A. Yes, sir. 10 A. That's expected. You're in the
11 Q. And that was with dredging. 11 swamps. Water is high, sheet pile only go down
12 A. Yes, sir. Well, I also did some work 12 so low. I mean, so there's continuous seepage
13 along the Inner Harbor relative to some levee 13 below that sheet piling.
14 work, which was some sheet pile, and that was 14 Q. Did you find any problems with the
15 done by Boone & King, B & K out of Mandeville. 15 dredging work that you inspected along the
16 They drove some sheet piling and built some 16 IHNC, the MRGO or GIWW?
17 levees in that area. I was walking the swamps 17 A. I'd like to ask you to define
18 with the bore hogs as an inspector for the 18 problems. It was hard for me to -- to me it
19 Corps during that time. 19 wasn't a problem. I'm working for the Corps,
20 Q. Where along Inner Harbor Navigational 20 this is what's supposed to be done, they want
21 Canal did you do that work? 21 this muck put over there. Hey, the guy is
22 A. Not -- I'm saying Inner Harbor. The 22 doing a fabulous job.
23 gulf outlet. 23 Q. Is that what you would report,
24 Q. Okay. The MRGO. 24 basically?
25 A. MRGO. 25 A. I would say he mucked this area out,
19 (Pages 435 to 438)

Page 439 Page 441
1 he did it this many hours, he had this many 1 Q. And I understand all that. I'm just
2 personnel working, and he discharged it at the 2 trying to make sure I get the time frame
3 stations designated by the Corps of Engineers. 3 correct for the record. You started that in
4 Q. So you didn't find any irregularities 4 December of 2001, after the hurricane season
5 with the dredging. 5 ended in 2001.
6 A. When it comes to performance of the 6 A. The Corps left us with no alternative
7 contract, I found no irregularities with his 7 but to start it at that time because they was
8 performance. That's not an answer to the 8 complaining about it not being started. And we
9 engineering and technical side. 9 began to initiate the work, and then we went to
10 Q. I understand. I want to go back 10 the Corps and said, okay, now, we began the
11 really quickly to Exhibit 42. 11 work, where's the approval on the discharge
12 (Brief interruption.)? 12 tubes? And they said, oh, we haven't gotten it
13 EXAMINATION BY MR. LEVINE: 13 back to you yet.
14 Q. I want to go back now to Exhibit 42. 14 Q. Again, though, you started that work
15 The top of the second page there. There's a 15 approximately December. 2001.
16 paragraph that says you needed to complete the 16 A. We were forced to start it at that
17 construction and reopening of Jourdan Road 17 time by the Corps.
18 during the non hurricane season, December 18 Q. That's fine. And then you were
19 through May. You see that? 19 supposed to have that floodwall reconstituted
20 A. Yes. 20 before hurricane season in 2002, is that
21 Q. Is part of your contract, you were 21 correct?
22 supposed to cut holes in the hurricane 22 A. That was the initial request of the
23 protection floodwall, is that correct? 23 contract plans, yes.
24 A. Cut holes? Cut -- demolition and go 24 Q. And you weren't able to do that, is
25 through. Not cut holes. I mean, we took it 25 that correct?
Page 440 Page 442
1 out completely. 1 A. No, we weren't, due to actions of the
2 Q. Okay. 2 Corps of Engineers.
3 A. And went through it. 3 Q. And so you had to set up some interim
4 Q. So there was a big gap in the 4 flood protection, is that right?
5 hurricane protection floodwall, is that right? 5 A. Yes, we did.
6 A. A 40-foot gap in the hurricane 6 Q. Just so the record is clear, what is
7 protection. 40 foot plus the other 20 for the 7 interim flood protection?
8 access road. 8 A. Interim flood protection is, the gap
9 Q. And those gaps initially started in -- 9 is open, what can we put in place to assure
10 I guess after the hurricane season in 2001 10 that water does not go through the gap? And it
11 finished, is that correct? 11 was sheet pile. We had sheet piling driven to
12 A. Yes, I would like to answer your 12 connect the I-wall with the T-wall on the
13 question and completely. Yes, it did, due to, 13 outside of the gap. If I had a map I'd
14 as I mentioned yesterday, the Corps of 14 illustrate it to you. If you want me to draw
15 Engineers' failed to approve submittals, get 15 it out.
16 them back to us, and that's imperative to 16 Q. That's all right. And then again
17 performing your work. You don't just go cut 17 in --
18 the wall out without a plan. And the Corps had 18 A. Also, with that interim flood
19 not completed any plan. And again, I'll tell 19 protection -- I'm sorry. I didn't mean to
20 you the position of posturing, they ignored 20 interrupt you but I want to complete that
21 that. That was some of the claims that was -- 21 answer.
22 later the bond company recouped $1.9 million 22 Q. Go ahead.
23 on, that McElwee Brothers didn't get a chance 23 A. With that interim flood protection, we
24 to see, as a result of the Corps refusing to 24 had the along the access road the came through,
25 partner incorporate. 25 the 20-foot opening on that I-wall, we drove
20 (Pages 439 to 442)

Page 443 Page 445
1 sheets below the ground -- the permanent 1 yes.
2 sheets, these are sheets that were supposed to 2 Q. You weren't able to rebuild the
3 be there anyway -- below the ground for easy 3 permanent hurricane flood protection structures
4 retrieval if a storm was impending we just 4 before the beginning of hurricane season in
5 pulled them up to the height of the I-wall. So 5 2003, is that correct?
6 that was the interim protection of the job. 6 A. We were able to do that. We was on
7 Q. And then after hurricane season 7 the process and a track record to have that
8 concluded in 2002, you had another opportunity 8 completed.
9 to place -- or reconstitute the flood walls 9 Q. But it wasn't completed at the
10 before hurricane season in 2003, is that 10 beginning of hurricane seen in 2003, is that
11 correct? 11 correct?
12 A. To reconstitute the flood wall, I 12 A. It wasn't, due to some difficulties
13 guess -- 13 between the Corps of Engineers and McElwee
14 Q. Rebuild the floodwall that you 14 Brothers. In fact, if I could point --
15 excavated. 15 Q. Go ahead.
16 A. We had an opportunity, but however it 16 A. If I could point out, one of the
17 was impacted by the impending storms. Remember 17 difficulties is this exhibit -- Exhibit 40. As
18 I told you there was four storms? During 18 I mentioned yesterday, were some lines of
19 August -- July and August, one year, there was 19 authority established during the partnering
20 three storms back to back. And we couldn't 20 meeting.
21 really get that work done during that non 21 Q. Which one is Exhibit 40?
22 hurricane season period. 22 A. That's your letter dated March 18th,
23 Q. Well, if the hurricanes -- these 23 2003.
24 storms happened during hurricane season, 24 Q. Yes.
25 wouldn't by the end of hurricane season you 25 A. If we read the first sentence,
Page 444 Page 446
1 have an opportunity to the complete that work? 1 gentlemen, reference the initial inspection on
2 A. I have to see when those storms 2 Monday, March 10th, 2003, for the Jack and bear
3 happened. I have to tell you when the storms 3 operation. The phone conversation between
4 happened and what we were able to do during 4 myself -- who was Mr. Tim Roth -- and Ross
5 that time. Ideally, if they all happened 5 Leslie -- who was a project manager for
6 during hurricane season and there was no -- all 6 Tri-State Design Construction Company, also I'd
7 submittals were approved and everything was on 7 like to note was ever authorized to do any
8 site and we weren't impacted by other items, 8 communications relative to the project -- on
9 yes, we could get that wall in place. 9 Tuesday, March 11, 2003, the biweekly status
10 There's something else we had impact 10 meeting of Thursday, March 13th, 2003, and the
11 the job, and think during that time frame was 11 field meeting of Friday, March 14th, 2003,
12 the back fill. The Corps never designated the 12 between your designer, Mr. Michael Dixon and
13 back fill to go over the box culvert canal 13 our geotechnical engineer Mr. Frank Vojkovich,
14 sections, what type of new material needed to 14 and the phone conversation on Monday
15 be brought in. The contract was modified to 15 March 17th, 2003, between Mr. Glenn Gremillion
16 deal with that. And I don't know if it was 16 and Mr. Leslie.
17 around the same time frame we were trying to 17 I want to make it clear that that was
18 get these box culvert canal sections back 18 parts of the problem. The Corps would go to
19 filled, which was impacting the work at the 19 Philadelphia to speak with to Mr. Leslie about
20 time. There was just so much happening. I'd 20 getting work accomplished in New Orleans, and
21 have to look at the progress chart, show you 21 they were ignoring me. And that was part of
22 the impacts that was presented to the corps. 22 the problems in having a lot of this work
23 And, um -- if the Corps would have worked with 23 accomplished.
24 us like they would normally do with most 24 Q. Were you having difficulties at that
25 contractors, we could have got the job done, 25 time with your joint venture partner about who
21 (Pages 443 to 446)

Page 447 Page 449
1 has lines of authority with the Corps of 1 Q. Now, we're going to have to reference
2 Engineers? 2 the third page and the first page.
3 A. No, I didn't have problems. The Corps 3 A. Yes, sir.
4 had problems. Because the Corps sat in meeting 4 Q. But I guess at the top of the first
5 with me and looked at Mr. Davis and tried to 5 page -- the third page, excuse me, you have a
6 convince him to pass a document to me 6 number of claims listed.
7 authorizing Mr. Leslie to conduct business down 7 A. Yes.
8 here on behalf of McElwee Brothers when he was 8 Q. And those are for, I guess, contract
9 never an employee or a consultant to McElwee 9 modifications?
10 Brothers That was the problem, not McElwee 10 A. Those were for some of the contract
11 Brothers having problems with the joint venture 11 modifications, yes.
12 partner. It was the Corps of Engineers trying 12 Q. What is a contract modification?
13 to force the financier, the one that had the 13 A. Contract modification is after the
14 money for this joint venture, to coerce him to 14 contract has been awarded and performance has
15 do what they wanted to get accomplished. 15 began there are issues that arise that the
16 Q. Well, you eventually sued your joint 16 contract did not consider, and so the contract
17 venture partner, is that right? 17 has to be revised. And when it's revised,
18 A. That's correct. 18 normally there's something involved as far as
19 Q. Why did you sue them? 19 time or money impacting the contract, so
20 A. I sued them because Mr. Ross Leslie 20 adjustments have to be made accordingly. Now,
21 should have immediately told them I'm not 21 the adjustments can be to the negative to a
22 authorized to communicate with the Corps of 22 contractor where he actually owes the
23 Engineers, and I think you all need to talk to 23 government something, or to a positive to the
24 Mr. McElwee. They were willing participants in 24 contractor where the government owes him.
25 these subversion tactics. 25 Q. Sure. So at the top, there's a number
Page 448 Page 450
1 Q. Now, your contract was eventually 1 of modifications that were finalized at that
2 terminated on June 24th, 2003, is that right? 2 time.
3 A. That's correct. 3 A. Yes, sir.
4 Q. I guess one of the reasons the Corps 4 Q. And then I think in the middle section
5 terminated that contract is they thought the 5 where it says order of negotiations, there's a
6 hurricane flood protection structures were 6 number of claims that you had presented prior
7 still left open for far too long. Is that 7 to June 24th, 2003, that were still outstanding
8 right? 8 at the time that this document was provided to
9 A. That is the position that they took, 9 the Corps. Is that correct?
10 and that's what they said as a reason to try to 10 A. That's correct.
11 default it, yes, sir. 11 Q. And the first four claims underneath
12 Q. And I don't want to misrepresent 12 order of negotiation were provided to the Corps
13 anything you say, but you disagree with that 13 on June 5th, 2003, initially?
14 position. 14 A. That's what my notes say, yes. Wait,
15 A. 100 percent. 15 wait. Let me say -- let me, let me -- my notes
16 Q. Let me show you this letter that's 16 say this: Let me clear this up. The 5th of
17 also marked June 24th, 2003. I'm going to mark 17 June, 2003, the first session for negotiations
18 this as Exhibit 44. And this is a letter from 18 took place.
19 you as the managing venturer of McElwee 19 Q. Okay.
20 Brothers and the joint venture to the Army 20 A. That's what that meant.
21 Corps of Engineers, is that correct? 21 Q. Okay. So you might have provided
22 (EXHIBIT 44 was marked for 22 notification to the Corps previously.
23 identification and is attached hereto.) 23 A. Yes, sir.
24 A. That's correct. 24 Q. Do you know that to be true or you
25 EXAMINATION BY MR. LEVINE: 25 just --
22 (Pages 447 to 450)

Page 451 Page 453
1 A. I know that to be true because we 1 that's the first time they were notified.
2 would not begin negotiations without 2 Q. It said that was notification to
3 notification being done. 3 the -- that's what it says there, is that
4 Q. And in the bottom section you have a 4 correct?
5 number of claims that you submitted to the 5 A. That's correct.
6 Corps for the first time on June 24th, 2003, is 6 Q. And it says that under the next one,
7 that right? 7 is that correct?
8 A. No, that that wasn't the first time. 8 A. That's correct.
9 The Corps knew about these items before this 9 Q. And it says it under the next one.
10 sheet took place. 10 A. That's correct.
11 Q. But this sheet is the first time you 11 Q. It says it under the next one.
12 provided notification to the Corps that you 12 A. That's correct.
13 wanted to submit those claims, is that correct? 13 Q. It says, request final decision on the
14 A. That's inaccurate. If you look at the 14 next one?
15 job records, if you look at the contract 15 A. That's correct.
16 quality control reports, we daily tell the 16 Q. And then the last one, seven,
17 Corps of Engineers of problems that we run 17 defective specifications, notification to the
18 into. So those are notifications, also. 18 Corps on June 24, 2003, is that correct?
19 Q. Sure, but you have to formally submit 19 A. That is correct.
20 the notification for a contract modification, 20 Q. That's what the document says.
21 is that correct? 21 A. That's what it says, and the reason
22 A. Formally? 22 that was put there is because if you're
23 Q. Sure. You just can't call someone up 23 familiar with the termination records relative
24 on the phone and say, I've got such and such 24 to government procedures, a contractor, once
25 problem and I think we should modify the 25 he's terminated, has a certain amount of time
Page 452 Page 454
1 contract. 1 to assure -- to confirm that the agency is
2 A. Notification has to be given. Whether 2 aware of any potential claims that might come
3 it's in verbal form, communication, whether 3 after the termination for default.
4 it's through the job records, I mean, I'm -- 4 Q. Did you provide this letter to the
5 let me give you an example of that. These 5 Corps before or after you were notified of your
6 storms on here, that "mod" came about when Tim 6 decision that you were terminated for default?
7 Roth said, hey there's going to be a change, 7 A. This was the same day, I believe it
8 and we got to notification that the change was 8 was, if I'm not mistaken. 23rd or 24th. I've
9 formally accepted. However, prior to getting 9 got to check the date of the termination. Give
10 that notification it was agreed that the storm 10 me something with the termination on it and
11 was impacting the job. In fact, McElwee 11 I'll tell you.
12 Brothers expended labor, materials and effort 12 Q. When you sent this letter in, though,
13 to protect the work area and we hadn't agreed 13 were you aware your contract had already been
14 to the modification. So the notification can 14 terminated?
15 come way before we sit down with the first 15 A. I got to check. Let me see the date
16 negotiations. 16 of the termination for default, if you have it.
17 Q. And to be fair, this document says, 17 Q. The termination for default, I'll tell
18 under claims, notification -- well, look at the 18 you what date of the later is, I know what it
19 first one. Removal of additional sheet pile 19 is, it's June 24th, 2003.
20 and asphalt in Jourdan Road. And if you go 20 A. Right.
21 down to note, it says notification to the 21 Q. The same day.
22 United States Army Corps of Engineers, 24 June 22 A. The same day. That letter went in
23 2003, is that correct? 23 that day. The morning. And then we got a
24 A. That is telling you that they were 24 termination for default faxed to us.
25 notified on that date. That's not telling you 25 Q. So this letter went in first.
23 (Pages 451 to 454)

Page 455 Page 457
1 A. Uh-huh. 1 A. I didn't feel, I knew it. Because the
2 Q. And then you were terminated for 2 Corps displayed the actions. Let me repeat
3 default, is that correct? 3 that again. When they came into meetings and
4 A. Yes. Uh-huh. 4 they ignored modifications that were previously
5 Q. Did you think when you sent this 5 submitted to them, to include these hurricane
6 letter in you were going to be terminated for 6 "mods." Rather than negotiate these and get
7 default at any time? 7 them out of the way and get the monies to the
8 A. Oh, Tim Roth had mentioned that on 8 contractor so he could proceed, the government
9 several occasions, that we plan on terminating 9 held off on all of that. That wasn't
10 your contract. I mean, he mentioned that back 10 negotiated until the bonding company came in.
11 in 2001, 2002 -- the early part of 2002. He 11 That was totally ludicrous and
12 kept harping on the path that we're going to 12 unnecessary. The intent of most of the
13 terminate your contract. I mean, that was -- 13 government modifications, from my recollection
14 that was his intent. 14 when I worked with them, was that they would
15 Q. When you sent this letter in, did you 15 negotiate mods quickly because the longer you
16 think that an impending termination was going 16 take the higher the cost of the mod goes.
17 to take place? 17 (Brief recess.)
18 A. I'm going to say to you again, in 2002 18 EXAMINATION BY MR. LEVINE:
19 Tim Roth made it clear he was going to 19 Q. I'm going to hand you a document that
20 terminate this contract. And if I can make it 20 I've marked as Exhibit 45. And this is an
21 a little bit more clear for you, um -- he 21 affidavit that you signed in the case Great
22 indicated that he was going to terminate it 22 American Insurance Company versus McElwee
23 after McElwee Brothers didn't select his 23 Brothers. Is that correct?
24 brother-in-law to work on the project as a 24 (EXHIBIT 45 was marked for
25 subcontractor, Mr. John Kernion. 25 identification and is attached hereto.)
Page 456 Page 458
1 John Kernion works for Cycle 1 A. Yes.
2 Construction. And after McElwee Brothers did 2 EXAMINATION BY MR. LEVINE:
3 not select his brother-in-law, the project 3 Q. And it was sworn and subscribed before
4 began to go south. That's when I realized it 4 a notary, is that right?
5 was going to be terminated. 5 A. That's correct.
6 So now hopefully that answers your 6 Q. Paragraph 2, it states, the contract
7 question. 7 price that you bid on and received after an
8 Q. It doesn't, so let me try it one more 8 award was $521,356.53. Is that correct?
9 time and then -- I mean, when you sent this 9 A. That's correct.
10 letter in this date, on June 24th, 2003, were 10 Q. Let's turn to Page 3 at Paragraph 8.
11 you expecting to be terminated that day, the 11 It says what it says there, but you believe the
12 next day, the next week? 12 issuance for the termination for default, at
13 A. To answer you again, in 2002, in 13 the time you sent this affidavit -- filed this
14 January, Tim Roth made it clear he was going to 14 affidavit, was inappropriate, is that correct?
15 terminate this contract. We're planning on 15 A. That's correct.
16 terminate your contract. 16 Q. You still believe that today?
17 Q. So -- 17 A. Yes.
18 A. And every action from that day forward 18 Q. And you also say that some of the
19 was in the act of terminating the contract. 19 fault was for Pittman Construction Company, is
20 Q. So every day from what date did you 20 that correct?
21 say in -- 21 A. That's correct. Yeah. Pittman
22 A. January, 2002. 22 Construction Company, that's correct.
23 Q. So for every day from January, 2002 23 Q. What role did they have to play in the
24 onwards, you felt that you were at risk of 24 eventual termination of your contract?
25 being terminated? 25 A. Um -- McElwee Brothers felt that the
24 (Pages 455 to 458)

Page 459 Page 461
1 termination was unjustifiable because the Corps 1 been reasonable in saying, you know what, we
2 terminated McElwee Brothers, the joint venture, 2 gave Pittman two or three years to finish that
3 for its work, when actually even up until today 3 pump station, I mean, you know, and it impacted
4 that work is complete but the pump station is 4 your work, whatever impacted you, you need
5 still not functioning. Pittman was the 5 time, too. I still think the position is, hey,
6 contractor on the pump station, and they were 6 it wasn't the fault of the joint venture, but
7 delayed I think two or three years prior to 7 there's been some reactions afterwards that,
8 McElwee Brothers beginning its work, and the 8 hey, if you look in the court record, the joint
9 essence of importance of work was on the pump 9 venture failed to pay its obligations. But if
10 station itself. Had McElwee, McElwee meaning 10 you look at the whys, you know, I feel that it
11 McElwee Brothers and the joint venture, delayed 11 was not the joint venture's fault.
12 the pump station 's usage during any hurricane, 12 Q. So you disagree, then, with what the
13 you know, and just recently Hurricane Katrina, 13 court record is. I mean, you personally
14 then McElwee would have understood the reason 14 disagree with that.
15 for termination. But the Corps placed emphasis 15 A. No, I agree that the Court was right
16 on terminating McElwee because it was behind 16 in making a determination that financial
17 schedule. But here we have a pump station 17 obligations were not met. And that was the
18 that's I think even today almost five, six 18 truism, and it gave the bonding company the
19 years -- hasn't even been completed. But the 19 right at that time to exercise its right to
20 Corps didn't terminate Pittman. 20 take over the contract. I never disagreed with
21 Those delays impacted McElwee tying in 21 that.
22 the tubes to the pump station. That was part 22 But had the Corps of Engineers paid
23 of McElwee Brothers' job. The tubes have never 23 its bills like it paid the bonding company, the
24 been tied in. It's just been accepted that, 24 joint venture never would have been in a
25 hey, that job late, so what's the big deal? 25 financial obligation to be in front of a Court.
Page 460 Page 462
1 Q. The next line of that says, it 1 Q. You said the Corps didn't pay its
2 wasn't -- the termination for default was not 2 bills. What do you mean?
3 reasonably based on any act or omission of the 3 A. Let's go back to Exhibit 44.
4 joint venturer of its partners. 4 Q. Which one is that?
5 Did you believe that to be true at the 5 A. Exhibit 44 is the notification of
6 time you signed this affidavit? 6 claims. Page 3. You have look at the order of
7 A. At the time I signed the affidavit, 7 negotiation, if you look at CIN -- if we look
8 yes, I believed it to be true that, um -- the 8 at Change Identification Number 7, 8, 9, 10,
9 termination was not as a result of acts or 9 Amendment 0004 and Amendment 0002, and TE --
10 omissions of the joint venture, no. 10 Time Extension 005, those numbers that I just
11 Q. Do you still believe that to be true 11 read to you are numbers assigned to
12 today? 12 modifications by the Corps of Engineers.
13 A. There's a sequence of events that have 13 That's not McElwee Brothers or the joint
14 happened in Court since then, to include the 14 venture's numbers assigned to those. The Corps
15 joint venture being found in breach of the 15 assigned numbers to those modifications meant
16 indemnity agreement for failure to pay its 16 they agreed there's a mod in the contract.
17 financial obligations. The Fifth Circuit Court 17 Q. Well --
18 of Appeals has made that determination. You 18 A. However, they never negotiated it and
19 know, the question can be answered two ways. I 19 passed the money on during the course of the
20 believe it not to be true at this time, because 20 contract.
21 if the Corps would have made its bills and 21 Q. Well, the first four under order of
22 would have acknowledged the amendments that we 22 negotiation, that first negotiation session,
23 looked at in Exhibit 44 and would have 23 those took place on June 5th, 2003, is that
24 cooperated and worked along partner with the 24 correct?
25 joint venture to get this project completed and 25 A. That is correct. Now, if the Corps
25 (Pages 459 to 462)

Page 463 Page 465
1 tells you, hey, we're going to set the date in 1 correctly.
2 June, 2007, and that's when we're going to meet 2 Q. After your contract was terminated for
3 with you to first negotiate with this, you as a 3 default you tried to bring a claim against the
4 contractor don't have a choice in that matter. 4 Army Corps of Engineers and the Board of
5 But if they handle it urgently and say, hey, we 5 Contract Appeals, is that correct?
6 knew the storm took place, and we knew you 6 A. We didn't try. We brought claims.
7 expended labor and materials, let's get this 7 All of the ones you notice under order of
8 over with and let's modify this contract and 8 negotiation with Corps members, all of that was
9 get you your monies because we know you need 9 brought in front of the Armed Services Board of
10 your monies, that's a whole different aspect. 10 Contract Appeals. In fact, the Armed Services
11 Now, the bonding company came in and they paid 11 Board of Contract Appeals had directed the
12 them the monies that was due at that time. 12 contracting officer to answer the contractor
13 Q. Did the Corps not paying you have any 13 relative to those claims. The contracting
14 impact on you not completing the project? 14 officer was refusing to answer those claims.
15 A. 100 percent. 15 Q. And then you litigated against your
16 Q. How is that? 16 surety Great American Insurance Company for who
17 A. You cannot complete a project if your 17 has the right to pursue those claims.
18 bills are running behind. It's like trying to 18 A. That's not correct. The bonding
19 feed your family. If you don't get a check, 19 company, surety, instituted a preliminary
20 you family can't eat. And with time it's going 20 injunction. I think we talked about that
21 to impact them. 21 yesterday. The copy of that is in the exhibits
22 Q. Were you unable to pay your 22 here. They were trying to exercise their
23 subcontractors? 23 rights to the claims. Judge Duval issued a
24 A. There was subcontractors and materials 24 temporary restraining order and an injunction,
25 suppliers that were not paid. That is what, 25 which was mandatory and prohibitory at the same
Page 464 Page 466
1 um -- that's the financial obligation of the 1 time, prohibiting McElwee from communicating
2 joint venture that was negligible at that time. 2 and being involved with the Corps and the
3 Well, I mean, it was wrong at that time that 3 ASBCA, and making it mandatory to cooperate
4 the Fifth Circuit said, hey, you didn't meet 4 with the surety to collect all amounts due.
5 your financial obligations. That is what 5 But at that time, the Armed Services
6 happened at that time. 6 Board of Contract Appeals did not recognize
7 Q. The original length of this project 7 nights the surety. In fact, the surety sent
8 was 600 days; is that right? 8 several letters saying, look, the Eastern
9 A. That's correct. Somewhere thereabout. 9 District of Louisiana say we in charge now.
10 Q. And you said the Corps gave Pittman 10 And the ASBCA says, you're not McElwee Brothers
11 numerous extensions. Is that right? 11 so we can't honor you. And they continued to
12 A. That's correct. 12 try to communicate with me. And that is where
13 Q. Do you know how long Pittman 's 13 the contempt came at later, because the ASBCA
14 project length was for? 14 would not recognize the bonding company.
15 A. Their project length was supposed 15 Q. So you believe that you were
16 to -- the pump station was supposed to end 16 sanctioned because the Board of Contract
17 before we began -- well, end before we began or 17 Appeals kept dealing with you instead of trying
18 right at the time we began our work. But when 18 to deal with the bonding company, is that
19 we arrived on job site in August, 2001, Pittman 19 correct?
20 was on a scarce schedule because they was 20 A. That was part of that sanction. In
21 waiting for approvals for time delays 21 fact, that hearing on that sanction, Judge
22 associated with the overhead power lines on 22 Stanwick Duval brought me in during that
23 their side of the job, and I think the job was 23 hearing, and to my surprise he said he had a
24 already two or three hundred days behind 24 surprise guest to be on the telephone. The
25 schedule at that time, if my memory serves me 25 surprise guest was the Honorable Judge Friedman
26 (Pages 463 to 466)

Page 467 Page 469
1 at the Armed Services Board of Contract 1 them stuff they asked for. And it just
2 Appeals. And it was a motion of contempt 2 happened to be there were some old seals that
3 requested by Great American against me for 3 were no good when we left from the project site
4 communicating with the ASBCA after the 4 that he requested, and I gave them to him when
5 injunction was in place. Judge Friedman Had 5 he requested them, and then he filed documents
6 issued -- sent a letter. In the letter 6 included in that proceeding stating that I was
7 somewhere, the language said, Mr. McElwee, this 7 withholding information. And Judge Duval said,
8 is in reference to your conversation with us on 8 Mr. McElwee, I find that you did not talk to
9 a particular day. And, um -- um -- that letter 9 Judge Friedman, but narrowly I do think you
10 was brought up during that contempt proceeding. 10 violated my order. And that was because of the
11 And I was placed under oath and Judge Duval 11 fact that it was the third time that they had
12 asked me did I communicate with the ASBCA. And 12 raised contempt proceedings, and the first two
13 I said, Your Honor, I haven't. 13 times he had dismissed it. And this third time
14 He said, Mr. McElwee, do you 14 he wanted to me to understand his powers. And
15 understand you're under oath? 15 then he found me in contempt.
16 I said, yes, sir, I do. 16 Q. Did you disagree with that entry of
17 He said, you're telling me you haven't 17 the contempt order?
18 talked to Judge Friedman? 18 A. I totally disagree with it. Because I
19 I said, Your Honor, I have not. 19 cooperated with the seals. I gave him the
20 He said, Well, I have a surprise 20 seals he wanted. He wrote me a letter saying,
21 guest. He said, Judge Friedman -- he brought 21 look, you got some seals over there, deliver
22 the telephone out -- y'all got him on the line? 22 them to me, and I did. The seals were in bad
23 That's what he said. He said, Judge Friedman, 23 shape. The manufacturer of the seals, CON/SPAN
24 I have under oath Mr. McElwee on the stand. 24 said the seals were bad when you left the job.
25 And he said, um -- Judge Friedman, I'm a 25 And I told Shields that the stuff was no good,
Page 468 Page 470
1 federal judge and I've ordered Mr. McElwee not 1 that he was going to have to order new stuff.
2 the communicate with the ASBCA. And he said, 2 So why did Mr. Shields come after me with some
3 I'm trying to, um -- verify that he contacted 3 old seals? He's setting me up, I felt, you
4 your office. And Judge Friedman -- he said, 4 know, to deliver something to him and say I was
5 Mr. McElwee, go I need to swear in Judge 5 withholding information. And that's why I'm
6 Friedman? 6 careful and cautious on how I talk and answer
7 I said, no, Your Honor, he's an 7 now. Because I'm afraid of setups again.
8 officer of the court, you don't need to swear 8 Q. So you disagreed with Judge Duval 's
9 him in. 9 ruling.
10 And he asked Judge Friedman, he said, 10 A. 100 percent.
11 Judge Friedman, has Mr. McElwee contacted your 11 Q. Um -- I think we've discussed this
12 office? 12 earlier. You brought suit against Tri-State as
13 And Judge Friedman said, no, he 13 of the result of this contract termination; is
14 hasn't. 14 that right?
15 And he said, excuse me, Judge 15 A. That's correct.
16 Friedman, even though I have a letter here that 16 Q. Now, Paragraph 9, it says, McElwee
17 you signed saying Mr. McElwee contacted your 17 Brothers wanted to complete the contract. Is
18 office, you're telling me he hasn't? 18 that right?
19 He said, Mr. McElwee did not contact 19 MR. LEVINE:
20 my office. It was Ms. Sylvia Hurst that 20 For the record, it's Paragraph 9
21 contacted my office. 21 of Exhibit 45.
22 That was the initial institution of 22 A. That's correct. That is correct.
23 the proceedings for that contempt. Along with 23 EXAMINATION BY MR. LEVINE:
24 that was Mr. Lloyd Shields said that I refused 24 Q. And I guess if the contract was going
25 to cooperate with him and had refused to give 25 to be terminated you felt a termination for
27 (Pages 467 to 470)

Page 471 Page 473
1 convenience of the government would have been 1 Exhibit 45. And it says -- it says what it
2 more appropriate, is that correct? 2 says, but do you believe that the fair value of
3 A. That's correct. 3 the modification of the claims due the joint
4 Q. What's a termination for convenience 4 venturer is $4,347,807.37, is that correct?
5 of the government? 5 A. That's correct.
6 A. That's when the government comes in a 6 Q. And you believe that if the surety had
7 and terminates a contract because of maybe no 7 successfully advanced that position and the
8 fault of either the contractor or the 8 termination for convenience position that the
9 government but it's just that the contract 9 net funds due the joint venturer were
10 cannot proceed on. We felt it was, um -- 10 $2 million -- I'm just going to have to read
11 probably would have been a lot better option 11 this out -- $2,030,212.55, is that correct?
12 because along the course of from 2002, January, 12 A. That's correct.
13 until it was terminated, the Corps kept 13 Q. And instead, you were hit with a
14 hollering, screaming during that time, or 14 judgment for $1.9 million, you testified to
15 alleging they was running of monies because 15 yesterday?
16 Congress hadn't appropriated them any funds. 16 A. Yes, sir. I say 1.9, but I think in
17 And in fact, they shut down several contractors 17 this document it's probably -- it's close to
18 during this course because there was no funding 18 somewhere around 1.9. I'd have to see that
19 for them to complete their work. 19 judgment.
20 Now, they did issue options for 20 Q. The judgment says what the judgment
21 contractors to complete the work and hope to 21 says.
22 get paid somewhere down the road. That was 22 A. Yes.
23 merely a hope. And, um -- they said, the 23 Q. So you're out two million dollars plus
24 allegation was that the only reason they hadn't 24 the total amount of the judgment. That's your
25 terminated our contract for convenience is 25 net loss.
Page 472 Page 474
1 because we never gave them a letter one way or 1 A. Yes.
2 the other on how we felt the contract should 2 Q. I don't know if anybody has asked you
3 go. But we felt that that was not a position 3 this, but you don't have a degree in civil
4 for us to determine. If you don't have any 4 engineering, do you?
5 money to pay for a job, it's your decision to 5 A. No.
6 make at that time whether you're going to 6 Q. And -- I guess it follows that you're
7 terminate it for convenience or shut it down. 7 not a licensed professional engineer. Is that
8 And being prudent as the Corps is, they're 8 correct?
9 familiar with monies and appropriations, we 9 A. I think I've affirmed that earlier,
10 felt that they should have terminated for 10 that I am not an expert.
11 convenience at that time or issued some -- 11 Q. I understand. I understand that.
12 halted the contract but issued some, um -- 12 There's a lot of stuff going on in two days,
13 delay time. But I think it was critical they 13 I'm just trying to be clear for the record.
14 didn't went to do that because there was some 14 For the Dwyer Road project, the
15 opening in the flood protection and that wasn't 15 biggest project you were a contractor with was
16 going to come across well if you're shutting a 16 $150,000?
17 job down and there's openings in the flood 17 A. Before that one?
18 protection and the city get flooded. 18 Q. Yeah.
19 Q. If the contract is terminated for the 19 A. Yes.
20 convenience of the government, the contractor 20 Q. And then --
21 is still entitled to receive a certain amount 21 A. I'm saying yes. But again, I got to
22 of profit and fees from that termination, is 22 look at the records. I know it was nowhere
23 that correct? 23 near --
24 A. I believe that to be true. 24 Q. And the Dwyer Road project was
25 Q. Turn to Paragraph 20 of the 25 $5.5 million.
28 (Pages 471 to 474)

Page 475 Page 477
1 A. That's correct. 1 look at and give you a résumé of contracts
2 Q. Have you had any projects after the 2 since that time. Those are the ones that stand
3 Dwyer Road project, Mr. McElwee, where you were 3 out.
4 the general contractor? 4 Q. When you were inspector at the Corps,
5 A. Yes. I mentioned those yesterday. 5 that was from December -- let's get the dates
6 Austin Bridge and Rode, doing some pile driving 6 one more time. Sorry. December, 1988, through
7 in Shreveport, Louisiana. That was 2 million 7 August, 1993.
8 dollars. Um -- 8 A. Yes, sir.
9 Q. It's called Austin -- 9 Q. Did you have any performance problems?
10 A. Austin Bridge and Road. 10 A. What do you mean performance problems?
11 Q. And who are you contracting with on 11 MR. JOANEN:
12 that one? 12 Objection, vague.
13 A. Again, Austin Bridge and Road. 13 MR. LEVINE:
14 Q. That's the name of the company? 14 It is vague. Let me rephrase it.
15 A. Yes. 15 You're giving me that look, too.
16 Q. What's the location? 16 EXAMINATION BY MR. LEVINE:
17 A. It was the Red River westbound lane of 17 Q. Who were your supervisors while you
18 the Red River bridge crossing the Red River, 18 were there, if you can recall?
19 driving the pilings for that project. 19 A. Mr. Ward Purdum, Lee Guillory, Danny
20 Q. Any other projects? 20 Thurmond, Chester Ashley.
21 A. Um -- Baton Rouge, Denton James. 21 Performance, you mean performance
22 Q. These companies Austin Bridge and Road 22 appraisal problems? No.
23 and Denton James, are they construction 23 Q. Did they ever judge your
24 companies? 24 performance --
25 A. Yes. 25 A. Yes, they did.
Page 476 Page 478
1 Q. They're the general contractor on the 1 Q. -- poorly?
2 project. 2 A. No. Exemplary performance.
3 A. That's correct. 3 Q. Were you ever tardy on a work site?
4 Q. You're just a subcontractor. 4 A. Tardy at a work site?
5 A. That's correct. 5 Q. Were you ever tardy to the jobs on a
6 Q. Have you received any contracts where 6 regular basis?
7 you've been the general contractor since your 7 A. I mean, I was tardy at times. On a
8 termination from the government? 8 regular basis, no, because we had flex time and
9 A. Okay. Let me clear this up. With 9 you could flex in at between like 7:00 and I
10 $1.9 million owed to a bonding company you 10 think 8:00, something like that. Ward Purdum
11 can't go in as a general contractor until you 11 was my supervisor, so he understood -- or he
12 take care of your bonding company. You have to 12 allowed -- not understood, he allowed me to
13 be bonded. So no, I couldn't go in as a 13 flex in and out for lunch to go to UNO for
14 general. I've been crippled as a result of 14 classes. So I mean when you say tardy, now, I
15 what's happened with the Corps. 15 don't want you to come at me and say I didn't
16 Q. Any other contracts where you've been 16 tell you about something.
17 a subcontractor? Denton James, where was that 17 Q. That's fine. That's fine.
18 project? In Baton Rouge? 18 A. I'm just telling you about, hey, my
19 A. That's Baton Rouge. And, um -- LSU 19 time -- and everybody 's schedule was never the
20 recreational field for Tricor Properties. 20 same. But the standard work time would
21 Q. Where are they out of? 21 probably be from 7:00 to 3:30. And if you came
22 A. Baton Rouge, Louisiana. 22 after then, you know, like you came at 7:30, it
23 Q. Any other contracts? 23 would be till 4:30. So we all had times we
24 A. I'd have to -- I don't remember 24 could flex in or flex out. In fact, there were
25 anything right at this point. But I'd have to 25 times I went straight to the job site, you
29 (Pages 475 to 478)

Page 479 Page 481
1 know, rather than report in to the office. So 1 problem. And they brought me in for a
2 if a job site was located closer to my home, 2 conference relative to it.
3 you know, I would -- was allowed to go straight 3 Q. Did someone ever accuse you of forging
4 from home to Kenner. 4 a letter?
5 Q. Did any of your supervisors at the 5 A. Forging a letter?
6 Corps ever review your time for tardiness? 6 Q. I'm just asking, did someone ever
7 A. Any of my supervisors? There was -- 7 accuse you of forging a letter relating to your
8 he wasn't my -- well, I don't know if he was my 8 military time?
9 supervisor. There's a gentlemen, his name 9 A. This gentleman may have said it was
10 is -- and I think you're dancing around an 10 forgery. The same guy who is dead now and
11 incident and I'm going to go straight on with 11 killed himself for whatever his mental problems
12 you and tell you about it. Um -- he's dead 12 were, I don't know, he may have said that. I'm
13 now. He killed himself, suicide. Um -- you 13 not aware of that. He might have said that to
14 wouldn't happen to know his name, huh? 14 somebody after I left the Corps.
15 Q. Can you just describe the incident? 15 Q. Did this ever precipitate the end of
16 A. Um -- the incident? This project 16 you -- you eventually leaving the Corps as an
17 engineer, um -- began to target and harass me 17 inspector?
18 with my military time, if that's what you're 18 A. Did it precipitate it? No. As I
19 speaking of. The Corps had a policy that if 19 mentioned yesterday, what happened was I
20 you were in the military that you could use 20 started my own construction company, and I
21 your military leave while you were on active 21 couldn't work for the government and perform
22 duty for the guard or the reserves. And there 22 work for the government at the same time. You
23 was a time frame when I went away for two 23 know what I'm saying?
24 weeks, and I took my military levee at the 24 Q. I follow that.
25 Corps, which meant I got paid military pay 25 A. It was a conflict. And what happened
Page 480 Page 482
1 while I was gone and I got paid by the National 1 was, I was beginning to get into the market and
2 Guard. 2 bid government contracts, and I received a
3 Well, he had a personal problem with 3 contract -- right after I left, I was in line
4 that. There never was a problem with any other 4 the receive a contract by the U.S. Army, and I
5 veterans in that area office. Um -- and many 5 said, well, I got to quit, I got to leave, I
6 of those other veterans I served in the same 6 can't work for the Army and then have a
7 units with them. Um -- Cal Smallwood, several 7 contract with the Army, there's too much
8 others. Danny Thurmond who I mentioned was my 8 conflicting interests. That's what
9 supervisor. Um -- Buck Burgess -- Mr. Burgess 9 precipitated my levee.
10 is his name, I think we called him Buck for 10 Q. Okay. So just to be clear, and I just
11 short -- we were all in the same engineering 11 want to make sure I understand, you never
12 unit in the National Guard. And we would all 12 left -- you didn't -- you left the Corps on
13 do the same things. But so this supervisor 13 relatively good terms when you left.
14 began to harass me about that time. He said, 14 A. When I left the Corps I left on
15 you took military leave. 15 relatively good terms. In fact, now, this is
16 I say, okay. Yeah, I did take 16 how it happened in detail: It happened, when I
17 military leave. What's the point? 17 left I was out sick on sick leave. And I never
18 He say, well, according to some 18 returned. In fact, I think I told them that I
19 regulation you wasn't supposed to do this or 19 was being stressed and harassed and I wanted
20 that. 20 some time off.
21 I said, I not aware of what you're 21 Q. And no relation to any incident where
22 talking about. I say, provide me with your 22 you would have forged a letter.
23 documentation what you're talking about. I'm 23 A. I never forged a letter.
24 doing the same thing everybody else does. 24 Q. All right.
25 And I never could understand the 25 A. I mean I never forged a letter. I
30 (Pages 479 to 482)

Page 483 Page 485
1 don't have a letter to forge. I mean, 1 big organization. How could I lash out at
2 military, you just write down what your leave 2 them? I don't know. I'm a retired officer
3 was. 3 from the same U.S. Army. So, you know, I've
4 MR. LEVINE: 4 always thought, hey, I don't want to get in a
5 I tender him. 5 predicament to be lashing out, but I'm going to
6 EXAMINATION BY MR. BRUNO: 6 tell the truth.
7 Q. I just have a few questions, 7 Q. All right. Now just a few more.
8 Mr. McElwee. You were kind enough to bring us 8 There's hours and hours about your contract and
9 the book? 9 the piles and all that business.
10 A. Yes, sir. 10 First of all, was this an easy or a
11 Q. And this is the book that you were 11 difficult job to do?
12 given when you took the course entitled Earth 12 MR. LEVINE:
13 Work Quality Verification Course? 13 Objection. Vague.
14 A. Yes, sir. 14 A. I am quoting Mr. Dom Algazabo who was
15 Q. In this volume is this yellow thing 15 the, I guess, resident contracting officer at
16 which is entitled Engineering and Design 16 that time who also, I said, went to the Orleans
17 Construction Control for Earth and Rock-Filled 17 levee board.
18 Dams. Were you given this engineering manual 18 EXAMINATION BY MR. BRUNO:
19 at the same time? 19 Q. Uh-huh.
20 A. Yes, sir. That manual -- 20 A. This was the most difficult project
21 Q. Did you learn in the course whether or 21 the Corps of Engineers had in the New Orleans
22 not earth and rock-filled dams had anything to 22 district at that time.
23 do with levees? 23 Q. And what role, if any, did the nature
24 A. Yes. Because you have some earth work 24 of the soils have to do with the making that
25 that's tied into these dams. You know, it's 25 job difficult?
Page 484 Page 486
1 not just strictly all rocks, per se. 1 MR. LEVINE:
2 Q. All right. 2 Objection. Vague.
3 A. So there's some earth work around most 3 A. The nature of the soils made it very
4 dams -- many dams. 4 difficult for a situation where you didn't
5 Q. All right. We have agreed that what 5 anticipate to dig up log trees and roots. You
6 we'd like to you do, if you don't mind, is just 6 saw some indications on the boring where
7 take this book over to IKON for us and then 7 there's some wood. But they didn't tell you
8 take your original back, and we'll obtain our 8 you're digging in a swampland, an area that
9 copies, you know, in the same fashion. 9 has -- that is practically virgin material, we
10 A. Yes, sir. 10 just covered over it.
11 Q. Now, you were asked yesterday about 11 Q. Uh-huh.
12 this business with the Corps and they 12 A. You know, as far as the batture is
13 terminated your contract. 13 concerned. You know, it was very difficult.
14 A. Yes, sir. 14 Q. All right. Now, the other thing that
15 Q. Have you said anything in this 15 strikes me as I'm reading these letters from
16 deposition that you would regard to be, um -- a 16 the Corps about improper this and improper
17 reaction to the fact that the Corps terminated 17 that, I'm wondering -- I'm thinking to myself,
18 the contract; in other words, is your testimony 18 where's the quality assurance guy? Is he on
19 colored by the fact that you've been unfairly 19 the site every day when you're doing the work?
20 treated by the Corps, and lashing out at them? 20 A. He was on the site every day we were
21 MR. LEVINE: 21 doing the work, but he was -- because of the
22 Objection. Compound. 22 tense relationship, he was overpowered,
23 A. No. You know, facts are what they 23 overshadowed by his own supervisors.
24 are. And I've just merely spoken facts. And 24 Q. Well, what I'm saying, though, is
25 to say I'm lashing out, I mean, the Corps is a 25 there is an allegation here that the piling
31 (Pages 483 to 486)

Page 487 Page 489
1 might have been improperly handled. 1 photographs and a color copy of the same
2 A. Yes, sir. 2 paragraphs. Is the right?
3 Q. It's in Exhibit 42. Is the quality 3 MR. BRUNO:
4 assurance -- the quality assurance guy was 4 Yes.
5 there on site watching the way the pile was 5 EXAMINATION BY MR. TREEBY:
6 handled, am I -- 6 Q. And a huge pile of paper here. Um --
7 A. That's correct. 7 and I guess I would like -- and I don't know
8 Q. Is that true? 8 how best to identify it.
9 MR. LEVINE: 9 MR. TREEBY:
10 Objection. Leading. 10 Will counsel trust me to
11 A. That's true. 11 represent that --
12 EXAMINATION BY MR. BRUNO: 12 MR. BRUNO:
13 Q. Well, was the quality assurance guy 13 Yes.
14 there to witness how the piles were stored? 14 MR. TREEBY:
15 A. He was there throughout the time the 15 -- if I take this and Bates this
16 piles were brought to the job site, stored, 16 stack that this will be -- and then I
17 moved around on the job site. 17 can make it available the same way
18 Q. All right. Well, he says -- did he 18 he's made I available by CD?
19 witness how the piles were positioned in the 19 MR. BRUNO:
20 leads? 20 Sure.
21 A. He witnessed it, yes. 21 MR. TREEBY:
22 Q. Did he witness the pile driving 22 Is that okay?
23 procedure? 23 MR. BRUNO:
24 A. Yes, he did. 24 Yeah. I mean, I told you --
25 Q. Did he say anything while he's 25 EXAMINATION BY MR. TREEBY:
Page 488 Page 490
1 standing there watching you do your work that 1 Q. Can you look at this and do you think
2 would have suggested to you that you were doing 2 determine if this in fact is the additional
3 something wrong? 3 material that you described yesterday that I
4 A. He didn't say anything, and neither 4 had not been given?
5 did Mr. Vojkovich who was witnessing the pile 5 A. Sir, I can visually see from here, and
6 driving initially when it took place, who was 6 then I can tell you it is the stack. I can
7 the geotechnical engineer for the Corps of 7 tell you I about the stacks. The bottom stack
8 Engineers. Neither one of them mentioned 8 is the stack of documents that were submitted
9 anything about handling procedures, movement of 9 to Dr. Bea 's constituent, and I don't think
10 the piles, or piles being cracked prior to 10 they were ever really used but those were
11 driving. 11 documents I gave him and I told them to make
12 MR. BRUNO: 12 copies of them at IKON. This is that stock of
13 All right. That's all the 13 documents that were never used as far as, you
14 questions I have. 14 know, by his constituent.
15 MR. TREEBY: 15 Q. You don't know they weren't used,
16 Anybody else? 16 though, do you, for sure?
17 EXAMINATION BY MR. TREEBY: 17 A. I'm -- I'm telling you what I was
18 Q. I just want to follow-up, Mr. McElwee, 18 told.
19 with we have been produced a big pile of paper 19 Q. You were told that. Okay. By Mr --
20 today that I'm told is the additional material 20 A. Rosenberg.
21 that would be described by our subpoena that we 21 Q. Rosenberg. David Rosenberg. Okay.
22 had not received before today, and I just 22 A. Yes. He asked me in particular how do
23 want -- I think it might be helpful, if you're 23 you want me to handle these stacks?
24 able to do so, to -- and I believe I've been 24 And I said, look, the first disk you
25 given both a black and white copy of 25 gave was documents done already, don't
32 (Pages 487 to 490)

Page 491 Page 493
1 duplicate that again. We don't want to keep 1 WITNESS' CERTIFICATE
2 giving the same documents over and over again. 2
3 I said, that stack you never made 3 I, MELVIN M.L. MCELWEE, SR., do
4 copies of in the first disk, make a copy of 4 hereby certify that the foregoing testimony was
5 that. 5 given by me, and that the transcription of said
6 That's the second stack. 6 testimony, with corrections and/or changes, if
7 Q. Okay. 7 any, is true and correct as given by me on the
8 A. He said, I didn't use those, I didn't 8 aforementioned date.
9 touch them. 9
10 I said, I don't care, he wants the 10 ______________ _________________________
11 documents, make a copy for him. 11 DATE SIGNED MELVIN M.L. MCELWEE, SR.
12 And this is it. 12
13 Q. Okay. 13 _______ Signed with corrections as noted.
14 A. This photos he had was strictly of all 14
15 the photos I'm told have been used in the case 15 _______ Signed with no corrections noted.
16 study. 16
17 These are those photos -- 17
18 Q. Okay. 18
19 A. -- of the excavation site. 19
20 Q. Okay. Okay. And with the reservation 20
21 that I previously made, and in addition, we're 21
22 going to get a copy of what's in this binder 22
23 that consists of the entire training course? 23
24 MR. BRUNO: 24
25 Yes. 25 DATE TAKEN: April 24th, 2008
Page 492 Page 494
1 A. Yes, sir. 1 REPORTER'S CERTIFICATE
2 MR. TREEBY: 2 I, JOSEPH A. FAIRBANKS, JR., CCR, RPR,
3 I then am finished, at least for 3 Certified Court Reporter in and for the State
4 now and hopefully forever. 4 of Louisiana, do hereby certify that the
5 MR. BRUNO: 5 aforementioned witness, after having been first
6 Okay. Subject to the same 6 duly sworn by me to testify to the truth, did
7 reservation. 7 testify as hereinabove set forth;
8 8 That said deposition was taken by me
9 9 in computer shorthand and thereafter
10 10 transcribed under my supervision, and is a true
11 11 and correct transcription to the best of my
12 12 ability and understanding.
13 13 I further certify that I am not of
14 14 counsel, nor related to counsel or the parties
15 15 hereto, and am in no way interested in the
16 16 result of said cause.
17 17
18 18
19 19
20 20
21 21
22 22
23 23 ____________________________________
24 24 JOSEPH A. FAIRBANKS, JR., CCR, RPR
25 25 CERTIFIED COURT REPORTER #75005
33 (Pages 491 to 494)


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MELVIN M.L.

McELWEE (VOL II) 4/24/2008

JOHNS PENDLETON COURT REPORTERS 800 562-1285

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