Ornelas v. Totall Metal Recycling, Inc. et al

MOTION for Summary Judgment

S.D. Ill.September 23, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS ADRIANA ORNELAS, as Administrator of ) the Estate of RODOLFO ROMO, Deceased, ) ) Plaintiff, ) vs. ) Civil No. 15-CV-00547-SMY-SCW ) THE UNITED STATES OF AMERICA and ) TOTALL METAL RECYCLING, INC., ) ) Defendants. ) UNITED STATES OF AMERICA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST TOTALL METAL RECYCLING, INC. Defendant United States of America (“United States”), by and through its attorneys, Donald S. Boyce, United States Attorney for the Southern District of Illinois, and Assistant United States Attorneys David J. Pfeffer and Adam E. Hanna, moves this Court for partial summary judgment on Counts I and II of the United States’ Cross-Complaint against Totall Metal Recycling (“TMR”) (Doc. 23), as well as on Counts I, II, and III of TMR’s Counter- Complaint against the United States (Doc. 43). For the reasons stated herein, partial summary judgment is appropriate in favor of the United States. PROCEDURAL HISTORY Plaintiff Adriana Ornelas, as administrator of the estate of Rodolfo Romo, filed suit against the United States and TMR on May 14, 2015 (Doc. 1). In general, the action alleges that the Defendants are liable for the wrongful death of Mr. Romo, who was killed in a worksite explosion at TMR’s facility on August 25, 2014. Plaintiff’s claim against TMR was later dismissed with prejudice on the ground that the Illinois Workers’ Compensation Act offers the exclusive remedy for an employee killed at work (see Doc. 24). Before TMR was dismissed, the United States filed a crossclaim against TMR seeking a declaratory judgment, indemnification, Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 1 of 17 Page ID #456 2 and contribution (Doc. 23). TMR answered (Doc. 33) and later filed its own counterclaims against the United States seeking similar relief (Doc. 43). As discovery progressed, counsel for the United States became aware that the contractual claims were not within the subject matter jurisdiction conferred to this District Court. When this problem became apparent, the United States notified the Court by moving for dismissal of its own contractual claims, as well as those presented by TMR (Doc. 52). TMR opposed the motion, arguing that the contractual claims are “inextricably linked” to the tort claim (Doc. 57). In reply, the United States noted that TMR identified no statutory basis for subject matter jurisdiction over the contractual claims (Doc. 64). That motion remains pending. FACTUAL BACKGROUND In September 2011, TMR entered into an agreement with the 916th Support Brigade of the United States Army for the “removal, demilitarization, and sale of expended firing brass, unserviceable small caliber ammunition, ammunition shrapnel, and ammunition packaging” from the Ammunition Supply Point (“ASP”) at the National Training Center (“NTC”), Fort Irwin, California (see Docs. 23-1 & 43-1). The agreement, titled as a “Memorandum of Understanding” (“MOU”), further required TMR to indemnify and hold harmless Fort Irwin and the 916th Support Brigade ASP, the United States (including its agencies and instrumentalities), and their officers, agents and employees against liability and against any and all claims for loss, death, injury, or property damage (including costs and expenses incidental thereto), arising out of, or in connection with, performance of this MOU, any of the activities or actions of the contractor, subcontractors, representatives, agents, or employees while performing this MOU, or any of the contractor’s activities or actions. Id. at ¶ 6(a). The MOU was signed by Dennis Meyer, a representative and part-owner of TMR, and Colonel Sherrie Bosley, then Commander of the 916th Support Brigade (Doc. 23-1 & 43-1; Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 2 of 17 Page ID #457 3 Ex. 4 at 53:1-10). Additionally, officials at the NTC were aware of the MOU, in particular a warranted contracting officer, Marie Velez (Ex. 1). On September 11, 2012, a trucking company contracted by TMR arrived at Fort Irwin’s ASP to pick up a load of recyclables (Ex. 2). A single truckload of materials left Fort Irwin that day and arrived at TMR’s Granite City plant on September 14, 2012 (Id.). An employee visually identified the metals received and took pictures of some of the contents of the load when it arrived (see Ex. 4 at 115:11-116:15, 123:8-18). Those photographs show a large number of metal ammunition cans, a box of brass ammunition shells, and a box of scrap metal, including inert Sabot adapters and an inert 120mm mortar tail fin (Id. at 124:3-126:4; see Ex. 6). The normal practices of TMR were to then store or recycle the material (Ex. 4 at 132:15-133:2). Thereafter, on September 17, 2012, TMR prepared a “Purchase Contract” regarding this shipment (Doc. 43-3). The footer of that document states, “SUBJECT TO TERMS AND CONDITIONS PER ATTACHED AND AS POSTED ON OUR WEBSITE . . . Please Sign to Confirm Contract and Return Via Fax . . .” (Id.). The alleged “Terms and Conditions” purport to supersede and replace all prior agreements, and contain indemnification provisions which TMR claims apply here (Doc. 43-2). However, no one from TMR or the United States ever signed the document (see id.; Ex. 3 at 16-24). Furthermore, TMR has no record that it ever sent these documents to the United States, nor that any federal employee received or agreed to the “Terms and Conditions” (Id.). Approximately two years later, TMR employee Rodolfo “Rudy” Romo died at work on August 25, 2014 when a device he was handling exploded (Doc. 1 at ¶ 5). TMR contends that the device was shipped to it by the Fort Irwin ASP nearly two years earlier, as part of the September 11, 2012 load (see Doc. 43 at ¶ 17). Photographs taken after the explosion show a Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 3 of 17 Page ID #458 4 crate full of inert practice mortars in the area of the explosion (see Ex. 8). No other explosive items, however, were found in the area by the explosive ordnance disposal technicians who responded to the incident (Ex. 5 at 171:3-23). SUMMARY JUDGMENT STANDARD “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012). The movant may support the motion by citing to materials in the record, including pleadings, affidavits, and other documents. Fed.R.Civ.P. 56(c)(1); Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010). In assessing whether summary judgment is warranted, the court construes all evidence, as well as the inferences reasonably drawn therefrom, in the light most favorable to the non-moving party. Spivey, 622 F.3d at 822. Any inference drawn must also be reasonable; “Inferences that rely upon speculation or conjecture are insufficient.” Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014). In responding to a summary judgment motion, the non-moving party may not simply rest upon the allegations in the pleadings, but must respond with facts establishing that there remains a genuine issue for trial. Armato, 766 F.3d at 719. “The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. To successfully oppose the motion, the non-movant must present definite, competent evidence in rebuttal.” Salvadori v. Franklin School Dist., 293 F.3d 989, 996 (7th Cir. 2002). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (to overcome a properly supported motion for summary judgment, a non-movant must establish a factual dispute that materially affects the outcome). Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 4 of 17 Page ID #459 5 ARGUMENT A. The Contractual Claims Should be Dismissed for Lack of Subject Matter Jurisdiction (see Doc. 52). For the reasons previously noted in the United States’ pending “Motion to Dismiss Contract Claims Pursuant to Rule 12(b)(1)” (Doc. 52) and reply in support (Doc. 64), the contractual claims are outside of this Court’s subject matter jurisdiction. Accordingly, the United States contends that the Court cannot reach the merits of the contractual claims, but rather must dismiss them for lack of subject matter jurisdiction. B. Alternatively, the MOU’s Indemnification Provisions Should be Enforced Against TMR. Out of an abundance of caution, and only in the event that the Court finds that it has subject matter jurisdiction over the contractual claims, the United States contends that the MOU requires TMR to indemnify the United States for any damages awarded in this action. As a result, summary judgment should be entered in favor of the United States with respect to its claims for declaratory relief and indemnification (Doc. 23, Counts I & II), as well as on TMR’s claim for declaratory judgment (Doc. 43, Count I). 1. The MOU is valid and enforceable. A contract with the United States requires “mutual intent to contract including an offer, an acceptance, and consideration passing between the parties.” Thermalon Indus., Ltd. v. United States, 34 Fed. Cl. 411, 414 (1995) (citations omitted). In addition, the person acting on behalf of the government in entering or ratifying the agreement must be generally shown to have authority to bind the United States in contract. Id. TMR’s pleadings do not state any direct challenge to the validity of the MOU. In fact, TMR pleads the MOU in its cross-claim against the United States, attaching it as an exhibit and Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 5 of 17 Page ID #460 6 incorporating its terms by reference (Doc. 43 at ¶ 8). None of TMR’s affirmative defenses challenge the validity or enforceability of the MOU. Instead, TMR seeks a declaratory judgment finding that the indemnification provision does not apply to the shipment in question, claiming that the item which exploded is outside the scope of the MOU (Doc. 43 at ¶ 12). Accordingly, TMR has not pled a challenge to the MOU’s validity. Judging by the direction taken by TMR in discovery, and despite the pleadings, the United States has reason to expect TMR will claim that the MOU is unenforceable. First, TMR may claim that the MOU was not executed by the proper representative of the United States. Second, TMR may attack certain provisions of the MOU for purportedly running afoul of certain regulations. Neither argument, however, is sufficient to free TMR of performing its promises under the MOU, including its duty to indemnify the United States. The MOU was executed by Colonel Sherrie Bosley, Commander of the 916th Support Brigade, rather than a warranted contracting officer. The agreement is nevertheless valid as a result of the government’s ratification. Ratification can occur when a contracting officer has actual or constructive knowledge of the material facts and circumstances of the unauthorized agreement and expressly or impliedly adopts the agreement. See Williams v. United States, 130 Ct. Cl. 435, 447 (1955).1 In Williams, the Court of Claims concluded that the government had ratified a contract for asphalt paving, even though the Air Force signatory lacked authority to sign the contract. Id. at 445-47. The court noted that the work had been completed, that both parties had accepted the benefits, and that the services were performed at the base where the 1 After the United States Court of Appeals for the Federal Circuit was established on October 1, 1982, that court held, “the holdings of our predecessor courts, the United States Court of Claims and the United States Court of Customs and Patent Appeals, announced by those courts before the close of business September 30, 1982, shall be binding as precedent in this court.” South Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982) (en banc). Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 6 of 17 Page ID #461 7 contracting officer was located. Id. at 447. The court concluded that the contracting officer thus had knowledge and ratified the contract. Id. In this case, the warranted contracting officer at the Mission & Installation Contracting Command, Marie Velez, was aware of the recycling program and knew of the proposed MOU (Ex. 1). In fact, she reviewed the contract, but believed that the appropriate signatory was “a garrison commander or someone else with command authority” (Id.). Consequently, the contract was instead signed by Col. Bosley (Doc. 23-1 & 43-1). Because Ms. Velez had, with full knowledge of the facts, acquiesced to Col. Bosley’s signing the agreement, any perceived shortfall in the authority of Col. Bosley is overcome by ratification. In addition, TMR may contend that the MOU is invalid as not in strict compliance with certain regulations pertaining to the required demilitarization of certain property. However, TMR cannot rely on a violation of a regulation or statute to invalidate a contract where the intended beneficiary of the provision is the United States. See Gould, Inc. v. United States, 66 Fed. Cl. 253 (2005). The term “demilitarization” means to “destroy the military offensive or defensive advantages inherent in the ammunition or ammunition components; and . . . includes any mutilation, scrapping, melting, burning, or alteration that prevents the use of the ammunition or ammunition components for the military purposes for which the ammunition or ammunition components was designed or for a lethal purpose.” 10 U.S.C. § 4687(h)(2). Thus, demilitarization requirements exist for the purpose of preventing “property from being used for its originally intended purpose and to prevent the release of inherent design information that could be used against the United States.” U.S. Dep’t of Defense, DoD Demilitarization Program (DOD Instruction No. 4160.28) (April 7, 2011), available at Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 7 of 17 Page ID #462 8 http://www.dtic.mil/whs/directives/corres/pdf/416028p.pdf. Demilitarization is a process intended to protect the government from having its discarded military property later used against it by enemies. See 10 U.S.C. § 4687(h)(2). Thus, TMR cannot seek to void the MOU for its provisions regarding demilitarization. Criticizing the MOU for its unlimited duration likewise does nothing to affect its validity. Limitations on the allowable duration of a contract are for the benefit of the government, not contractors. Gould, 66 Fed. Cl. at 264. TMR has no right of enforcement to what is “best described as internal operating provisions for the management of funds within the agency . . . [and] may not rely upon a statute which supplies no private cause of action-where enforcement is intended through Congressional oversight.” Id. at 258. There is no suggestion that the agency’s limitation on a recycling contract’s period of performance is intended to benefit recycling contractors such as TMR. The same can be said of any failure to competitively bid the sale, which resulted in TMR’s selection for the agreement. The government, not the contractor, benefits when sales and purchases are competitively bid. Under these theories, the United States anticipates that TMR will point to perceived regulatory or statutory violations concerning the MOU in an effort to evade the responsibility it contractually accepted. However, none of the alleged violations were crafted for the benefit of TMR or other contractors. A contract entered in contravention of law or regulation will only be declared void ab initio where the law contravened specifically provides for the invalidation of noncompliant contracts, or where the court finds that non-enforcement of the contract is “consistent with and essential to effectuating the public policy” of the law. AT&T v. United States, 177 F.3d 1368, 1374 (Fed. Cir. 1999). “Invalidation of the contract is not a necessary consequence when a statute or regulation has been contravened, but must be considered in light Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 8 of 17 Page ID #463 9 of the statutory or regulatory purpose, with recognition of the strong policy of supporting the integrity of contracts made by and with the United States.” Id. See also United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1333 (Fed. Cir. 2006) (notwithstanding agency’s violation of federal statutes concerning expenditure limitations and oversight of military construction projects, contract was not void). Here, TMR’s anticipated reference to perceived regulatory violations does not meet the test, and the MOU’s indemnification provision should be enforced. 2. The indemnification provision is clearly applicable to the transactions at issue. Furthermore, the applicable indemnification provision applies to the transactions at issue, even if the scope of the contract does not contemplate the transfer of certain materials. When a contract between the United States and a contractor is “entered into pursuant to authority conferred by federal statute, and, ultimately, by the Constitution,” federal law controls the interpretation of the contract. United States v. Seckinger, 397 U.S. 203, 209-10 (1970); see also Gillen Co. v. United States, 825 F.2d 1155, 1156 (7th Cir. 1987) (“The validity and construction of this written contract through which the United States was exercising its constitutional functions is a question of federal law.”). In reviewing a contract interpreted under federal law, the first task is to determine whether the provision at issue is ambiguous. “The language of a contract is ambiguous if a section of that contract ‘is subject to reasonable alternative interpretations.’” Funeral Fin. Sys. v. United States, 234 F.3d 1015, 1018 (7th Cir. 2000) (quoting Grun v. Pneumo Abex Corp., 163 F.3d 411, 420 (7th Cir. 1998)). In considering whether other reasonable interpretations exist, the courts should view the language “in an ordinary and popular sense as would a person of average intelligence and experience.” Id. (citations omitted). A contract is not ambiguous simply because the parties disagree about its meaning. Kaplan v. Shure Bros., 266 F.3d 598, 605 (7th Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 9 of 17 Page ID #464 10 Cir. 2001). Moreover, where a contract is unambiguous, any subjective interpretation of the contract by the parties at the time of execution is irrelevant. Id. at 604. The MOU entered into between TMR and the United States includes at least three paragraphs addressing the allocation of risk: a. Indemnity. TMR and its associated sub-contractors, hereafter collectively referred to as “the contractor”, agrees to indemnify and hold harmless Fort Irwin and the 916th Support Brigade ASP, the United States (including its agencies and instrumentalities), and their officers, agents and employees against liability and against any and all claims for loss, death, injury, or property damage (including costs and expenses incidental thereto), arising out of, or in connection with, performance of this MOU, any of the activities or actions of the contractor, subcontractors, representatives, agents, or employees while performing this MOU, or any of the contractor’s activities or actions . . . . . . . . e. Dangerous property. The Contractor is cautioned that articles or substances of a dangerous nature may remain in the property (Munitions Residue) regardless of the care exercised to remove same. The Government assumes no liability for damages to the property of the Contractor or for personal injuries, disabilities or death of the Contractor, his/her employees or to any other person arising from, or incident to, the purchase of this recyclable Munitions Residue material. . . . . i. The contractor is warned that these items are potentially dangerous property that may be explosive, not withstanding USAG efforts to render this property harmless. The contractor agrees to be fully responsible for protecting the environment and all persons and property against these dangers and/or hazards at its sole risk and peril. Doc. 23-1 at 6-7. The United States contends that these contract provisions are unambiguous because there is but one reasonable interpretation of the language: TMR must indemnify and hold harmless the United States for the claims brought by Plaintiff. Where a contract is clear and unambiguous, interpretation of the language is a question suitable for disposition on a motion for summary judgment. Geier v. Medtronic, Inc., 99 F.3d 238, 244 (7th Cir. 1996). Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 10 of 17 Page ID #465 11 Starting with paragraph 6(a), it is clear that the parties agreed to allocate the risks to TMR. Paragraph 6(a) makes it clear that the indemnity obligation is not limited to an instance where the United States is acting strictly within the bounds of the MOU. To the contrary, TMR accepts an indemnification obligation “against liability and against any and all claims for loss, death, [or] injury . . . arising out of, or in connection with, performance of this MOU” (Doc. 23- 1 at 6). Thus, it is insufficient for TMR to claim that, assuming the explosive item came from Fort Irwin, it was outside the description in the scope and purpose sections of the MOU.2 The indemnification obligation applies also to claims which arise “in connection with performance of [the] MOU” (id.). While the language of 6(a) is a clear allocation of liability between the parties to this contract, TMR and the United States went even further to memorialize their intentions. Paragraph 6(e) clearly states that the United States was accepting no liability under the contract for injuries to, or death of, TMR’s employees and that TMR would indemnify the government for claims “arising from, or out of, the purchase of this recyclable Munitions Residue material.” Moreover, paragraph 6(e) specifically references the risk which the Plaintiff alleges came to fruition in this case: that the United States would accidentally ship a dangerous item to TMR. In what appears to be an effort to make their agreement abundantly clear in its intentions, the parties contracted for a third section concerning the allocation of risks. Paragraph 6(i) is even underlined for emphasis. It specifically warns that materials delivered to TMR “are potentially dangerous property that may be explosive, notwithstanding USAG efforts to render this property harmless” (Doc. 23-1 at 7). In light of that explicit warning, TMR agreed “to be 2 TMR does plead that the materials in question were outside the scope of the MOU. The United States does not concede that position, but takes those facts in the light most favorable to TMR as required by Rule 56. Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 11 of 17 Page ID #466 12 fully responsible for protecting . . . all persons and property against these dangers and/or hazards at its sole risk and peril.” (Id.) Far from contemplating an agreement to share fault comparatively, this paragraph exclusively commits responsibility to TMR. Each of the three paragraphs contains language broad enough to apply to a scenario where the United States ships to TMR some items listed in the scope and purpose sections of the MOU along with one or more which do not fit into the categories listed. It is therefore insufficient to claim that nothing explosive was within the “scope” or “purpose” section of the MOU, or that it could not foresee the receipt of such an item. That position is untenable in light of the language of the contract as interpreted “in an ordinary and popular sense as would a person of average intelligence and experience.” See Funeral Fin. Sys., 234 F.3d at 1018. It is undisputed that the items arriving on September 14, 2011 at TMR from the Fort Irwin ASP were all received on one truck (Ex. 4 at 124:17-19). Those items included ammunition boxes, brass casings, and scrap aluminum and steel (Id. at 124:23-125:19). They were photographed and entered the recycling process at TMR (Id.). Assuming for the sake of this motion that the explosive item arrived from the Fort Irwin ASP on this truckload, as TMR alleges, it was delivered with items which TMR clearly intended to purchase as part of its MOU with the 916th Support Brigade. Even if a claim arises “in connection with performance with the MOU” rather than arising directly out of it, TMR has expressly accepted responsibility for that claim. Thus, if TMR’s version of the facts are true, namely that the United States shipped an explosive mortar round in a truckload of metal ammunition boxes and small-caliber brass shell casings, the MOU assigns liability to TMR. The explosive item, in that scenario, would not have been shipped in isolation or as part of some separate sale, but instead “in connection with” or “incident to” a Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 12 of 17 Page ID #467 13 transaction under the MOU. Accepting TMR’s version of the facts as true, the United States is still entitled to indemnification under the MOU. Accordingly, the Court should grant summary judgment in favor of the United States on Counts I and II of its Crossclaim (Doc. 23), and on Count I of TMR’s Counterclaim (Doc. 43). C. TMR’s Unilateral “Terms and Conditions” are not Enforceable Against the United States, as They Were not Part of any Agreement Between the Parties. In Counts I and II of its Counterclaim, TMR also alleges that the United States is bound to indemnify and hold it harmless under a set of “Terms and Conditions” it had posted on its website (Doc. 43 at ¶¶13-22). Again, the United States contends that the Court cannot reach the merits of the contractual claims, but rather must dismiss them for lack of subject matter jurisdiction (see Docs. 52 & 64). Out of an abundance of caution, and only in the event that the Court finds that it has subject matter jurisdiction over the contractual claims, the United States contends that the TMR’s “Terms and Conditions” are not enforceable against the United States. Unlike the clear circumstances establishing that the parties signed and agreed to the terms of the MOU, there is absolutely no evidence that TMR ever communicated its alleged “Terms and Conditions” to the United States. Nor is there any evidence that the United States agreed to any such terms. As a result, summary judgment should be entered in favor of the United States with respect to TMR’s claims for declaratory judgment (Doc. 43 at Count I) and indemnification (Id. at Count II). As noted above, TMR contends that the item which exploded was shipped from Ft. Irwin on September 11, 2012 and arrived at TMR on September 14, 2012. Upon receipt, TMR visually identified the materials, photographed some of the contents, and processed it into its facility (see Ex. 4 at 115:11-116:15, 123:8-18 & 132:15-133:2). TMR claims that it later prepared a “Purchase Contract” on September 17, 2012 regarding this shipment (Doc. 43-3). The footer of Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 13 of 17 Page ID #468 14 that document states, “SUBJECT TO TERMS AND CONDITIONS PER ATTACHED AND AS POSTED ON OUR WEBSITE . . . Please Sign to Confirm Contract and Return Via Fax . . .” (Id.). The alleged “Terms and Conditions” purport to supersede and replace all prior agreements, and contains indemnification provisions which TMR claims apply here (Doc. 43-2). The “Purchase Contract” itself reveals, however, that no one from TMR or the United States ever signed the document (Id.). Moreover, TMR has produced no evidence to establish that it ever sent these “Terms and Conditions” to the United States, nor that the United States ever received notice of them. Likewise, TMR cannot produce a signed copy of the “Purchase Contract” nor any other document to suggest that the United States had ever agreed to TMR’s “Terms and Conditions,” let alone several days after the transaction was complete. In fact, TMR admitted as much in its 30(b)(6) deposition regarding the “Terms and Conditions” and their relationship to this case. TMR’s designee, Larry Present, stated that TMR usually communicates its “Terms and Conditions” via the reference on TMR’s “Purchase Order,” its website, and by mailings (Ex. 3 at 13:11-15). Yet TMR has no copy of the relevant “Purchase Contract” containing a signature by a representative of the U.S. Army or TMR itself (Id. at 16:17-24). Moreover, TMR has no evidence and does not know that it even sent the “Purchase Contract” to anyone at Ft. Irwin at all (Id. at 17:7-25). In short, there is no documentation to support the claim that anyone at Ft. Irwin was ever sent the “Purchase Contract” or the “Terms and Conditions” form, nor that any U.S. Army personnel received or agreed to the “Terms and Conditions” (Id. at 18:11-19:8). Instead, the “Purchase Contract” was prepared three days after the materials had already been received at TMR (Id. at 20-21). TMR Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 14 of 17 Page ID #469 15 simply has no evidence that it ever obtained any agreement or assent by the United States to be bound by the “Purchase Contract” or “Terms and Conditions” (Id. at 24:10-20). As noted above, a contract with the United States requires “mutual intent to contract including an offer, an acceptance, and consideration passing between the parties.” Thermalon Indus., 34 Fed. Cl. at 414. There is no evidence, however, that the parties mutually intended to enter into any contract premised upon TMR’s “Terms and Conditions.” The United States thus has no duty whatsoever to indemnify TMR for any damages relating to the August 25, 2014 explosion. Accordingly, if the Court opts to reach the contractual questions, the Court should grant summary judgment in favor of the United States on TMR’s Counterclaims I and II. D. TMR’s Counterclaim for Contribution Should be Dismissed Because it has No Potential Tort Liability to Plaintiff. Finally, Count III of TMR’s counterclaim purports to state a claim for contribution against the United States (Doc. 43 at 10). In particular, TMR seeks contribution from the United States for damages arising out of this case (Ex. 7 at ¶ 16). However, because TMR is not liable to the Plaintiff in this matter, it cannot seek contribution from the United States. Under the Illinois Joint Tortfeasor Contribution Act (“JTCA”), a statutory right of contribution arises “where 2 or more persons are subject to liability in tort arising out of the same injury to a person or property, or the same wrongful death.” 740 ILCS 100/2. TMR has already been exonerated from tort liability to the Plaintiff in this matter by virtue of the dismissal with prejudice of Plaintiff’s claim against it (Doc. 24). It asserted its defense under the Workers’ Compensation Act and the direct claim by Plaintiff against TMR was thereby fully and permanently extinguished. The JTCA does not apply where there is no joint liability in tort. See N. Am. Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 457 (7th Cir. 1996); but see Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 15 of 17 Page ID #470 16 Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 522 F.3d 776, 785 (7th Cir. 2008) (finding JTCA applicable despite partial preemption by Warsaw Convention due to potential for claim). Instead, the only liability to which TMR is subject to in this case is directly via the United States’ claims for indemnification and contribution, each of which inherently resolve apportionment of fault. Because TMR has no actual or potential tort liability from Plaintiff, the United States is entitled to judgment as a matter of law on TMR’s contribution claim. CONCLUSION The contractual claims in this case should be dismissed pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. Alternatively, however, should those questions be addressed, summary judgment should be entered in favor of the United States and against TMR on the pending contract claims for declaratory judgment and indemnification. Additionally, TMR’s contribution claim should be dismissed, as TMR is not subject to any potential tort liability from Plaintiff. Respectfully submitted, DONALD S. BOYCE United States Attorney _s/ David J. Pfeffer DAVID J. PFEFFER ADAM E. HANNA Assistant United States Attorneys Nine Executive Drive Fairview Heights, Illinois 62208-1344 Phone: (618) 628-3700 Fax: (618) 622-3810 Email: David.J.Pfeffer@usdoj.gov Adam.Hanna@usdoj.gov Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 16 of 17 Page ID #471 17 CERTIFICATE OF SERVICE The undersigned hereby certifies that on September 23, 2016, he filed a copy of the foregoing UNITED STATES OF AMERICA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST TOTALL METAL RECYCLING, INC. with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: THOMAS Q. KEEFE, JR. MICHAEL J. NESTER KELLY T. CROSBY JASON M. GOURLEY Keefe, Keefe, & Unsell, PC Donovan Rose Nester, PC 6 Executive Woods Ct. 201 South Illinois Street Belleville, IL 62226 Belleville, Illinois 6220 Debbie@tqkeefe.com mnester@drnpc.com Kelly@tqkeefe.com jgourley@drnpc.com Attorneys for Plaintiff Attorneys for Totall Metal Recycling W. JEFFREY MUSKOPF ANDREW C. SEIBER DEAN HENKE SmithAmundsen, LLC 120 S. Central Ave., Ste. 700 St. Louis, MO 63105 jmuskopf@salawus.com aseiber@salawus.com dhenke@salawus.com Attorneys for Totall Metal Recycling _ s/ David J. Pfeffer Case 3:15-cv-00547-SMY-SCW Document 80 Filed 09/23/16 Page 17 of 17 Page ID #472 EXHIBIT 1 Case 3:15-cv-00547-SMY-SCW Document 80-1 Filed 09/23/16 Page 1 of 3 Page ID #473 Case 3:15-cv-00547-SMY-SCW Document 80-1 Filed 09/23/16 Page 2 of 3 Page ID #474 Case 3:15-cv-00547-SMY-SCW Document 80-1 Filed 09/23/16 Page 3 of 3 Page ID #475 EXHIBIT 2 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 1 of 11 Page ID #476 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 2 of 11 Page ID #477 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 3 of 11 Page ID #478 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 4 of 11 Page ID #479 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 5 of 11 Page ID #480 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 6 of 11 Page ID #481 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 7 of 11 Page ID #482 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 8 of 11 Page ID #483 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 9 of 11 Page ID #484 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 10 of 11 Page ID #485 Case 3:15-cv-00547-SMY-SCW Document 80-2 Filed 09/23/16 Page 11 of 11 Page ID #486 EXHIBIT 3 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 1 of 18 Page ID #487 Bethblkbrn@aol.com ~ (636) 578-1104 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS ADRIANA ORNELAS, as ) Administrator of the ) Estate of RODOLFO ROMO, ) Deceased, ) ) Plaintiff, ) ) vs. )Civil No. 15-CV-00547-SMY-SCW ) THE UNITED STATES OF ) AMERICA and TOTALL METAL ) RECYCLING, INC., ) ) Defendants. ) Deposition of Witness, LARRY J. PRESENT, on behalf of Defendant United States of America September 2, 2016 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 2 of 18 Page ID #488 Bethblkbrn@aol.com ~ (636) 578-1104 1 INDEX OF EXAMINATION 2 Direct Examination Page No. 3 By Mr. Pfeffer 5 4 5 Direct Examination 6 By Ms. Crosby 36 7 8 9 INDEX OF EXHIBITS 10 11 Exhibit No. 12 27 Exhibit A to the 30(b)(6) deposition notice 6 * 13 43-2 Exhibit B to TMR's counter-complaint 10 * 14 63 Document 43-2 Terms and Conditions 12 15 64 Document 43-3 Purchase Contract 13 16 21 document TMR 113 through TMR 125 20 * 17 65 Objections and Answers to Defendant United 25 18 States of America's Second Interrogatories 19 20 21 * marked in a previous deposition 22 23 24 Reporter's Certificate 41 25 2 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 3 of 18 Page ID #489 Bethblkbrn@aol.com ~ (636) 578-1104 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS 2 ADRIANA ORNELAS, as ) 3 Administrator of the ) Estate of RODOLFO ROMO, ) 4 Deceased, ) ) 5 Plaintiff, ) ) 6 vs. )Civil No. 15-CV-00547-SMY-SCW ) 7 THE UNITED STATES OF ) AMERICA and TOTALL METAL ) 8 RECYCLING, INC., ) ) 9 Defendants. ) 10 11 Deposition of LARRY J. PRESENT, to be used in 12 an action pending in the District Court of the United 13 States for the Southern District of Illinois, wherein 14 ADRIANA ORNELAS, as Administrator of the Estate of 15 Rodolfo Romo, deceased, is Plaintiff and THE UNITED 16 STATES OF AMERICA and TOTALL METAL RECYCLING, INC., are 17 Defendants, pursuant to Notice, under the provisions of 18 Rule 26 of the Rules of Civil Procedure; taken on the 19 2nd day of September, 2016, at Totall Metal Recycling, 20 Inc., 2700 Missouri Avenue, Building B-11, city of 21 Granite City, state of Illinois, before Laura Lynn 22 Murphy, a Certified Court Reporter No. 764 within and 23 for the County of St. Louis, State of Missouri. 24 25 3 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 4 of 18 Page ID #490 Bethblkbrn@aol.com ~ (636) 578-1104 1 A P P E A R A N C E S 2 David J. Pfeffer Assistant United States Attorney 3 UNITED STATES ATTORNEY'S OFFICE Nine Executive Drive 4 Fairview Heights, Illinois 62206-1344 For Defendant The United States of America 5 6 W. Jeffrey Muskopf Attorney at Law 7 SmithAmundsen, LLC 120 South Central 8 Suite 700 St. Louis, Missouri 63105-1794 9 For Defendant Totall Metal Recycling 10 Jason M. Gourley 11 Attorney at Law DONOVAN ROSE NESTER, PC 12 201 South Illinois Street Belleville, Illinois 62220 13 For Defendant Totall Metal Recycling 14 Kelly Crosby (via speakerphone) 15 Attorney at Law KEEFE, KEEFE & UNSELL, PC 16 6 Executive Woods Court Belleville, Illinois 62226 17 For Plaintiff 18 19 20 21 22 23 24 25 4 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 5 of 18 Page ID #491 Bethblkbrn@aol.com ~ (636) 578-1104 1 (At 10:04 a.m., the following proceedings were had:) 2 LARRY J. PRESENT, 3 being produced, sworn and examined on behalf of the 4 Defendant, the United States of America, deposeth and 5 saith: 6 DIRECT EXAMINATION 7 BY MR. PFEFFER: 8 Q. Good morning, sir. 9 A. Good morning. 10 Q. My name is David Pfeffer. I'm an attorney with 11 the United States Attorney's Office here in the Southern 12 District of Illinois representing the United States of 13 America. Could you state your full name and spell it 14 for the record. 15 A. Larry Joel Present, L-a-r-r-y J-o-e-l 16 P-r-e-s-e-n-t. 17 Q. Have you ever had your deposition taken before, 18 sir? 19 A. Yes. 20 Q. Just a couple quick things. Then you understand 21 that you're under oath as if you were in a court of law 22 today? 23 A. Yes. 24 Q. And we'll do our best not to talk over each 25 other. So I'll wait for you to finish your answer and Larry J. Present - September 2, 2016 5 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 6 of 18 Page ID #492 Bethblkbrn@aol.com ~ (636) 578-1104 1 if you'll wait for me to finish my question, we'll make 2 sure the record is clear for the court reporter. 3 A. Yeah. 4 Q. Do you understand that? 5 A. Yes. 6 Q. All right. Is there any reason why you would not 7 be in a position today to give full and accurate 8 testimony? 9 A. No. 10 Q. Okay. Do you understand that TMR has designated 11 you to speak on its behalf with respect to certain 12 matters included in the deposition notice? 13 A. Yes. 14 Q. Okay. And this has been previously marked as 15 Exhibit 27, which is Exhibit A to the 30(b)(6) 16 deposition notice. Have you seen that document before, 17 sir? 18 A. Yes. 19 Q. And it's my understanding you're here today to 20 testify about topics 8 and 10 on Exhibit 27. Is that 21 your understanding as well? 22 A. Yes. 23 Q. And do you understand that in your capacity as a 24 30(b)(6) witness, you are testifying on behalf of 25 information known or reasonable available to Totall Larry J. Present - September 2, 2016 6 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 7 of 18 Page ID #493 Bethblkbrn@aol.com ~ (636) 578-1104 1 Metal Recycling? 2 A. Yes. 3 Q. Are you prepared to speak about those topics on 4 behalf of TMR? 5 A. Yes. 6 Q. All right. Just some general background, if you 7 can just give me your educational history and general 8 employment background up until the time you came to TMR. 9 A. Graduated from college University of Missouri in 10 Columbia; worked in public accounting. I'm a CPA for 34 11 years. 12 Q. Let me just stop you there. When did you 13 graduate from University of Missouri? 14 A. 1976. 15 Q. And what was your degree? 16 A. Bus -- BS in Administration under -- and a 17 accounting degree. 18 Q. And you went on to get your CPA -- 19 A. Yes, I did. 20 Q. -- license? Okay. Continue from there, sir. 21 A. I worked in public accounting for 34 years, then 22 came to work here at Totall Metal Recycling as their 23 CFO. 24 Q. And when did you start working with TMR? 25 A. In May of 2008. Larry J. Present - September 2, 2016 7 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 8 of 18 Page ID #494 Bethblkbrn@aol.com ~ (636) 578-1104 1 discussing as the Terms and Conditions which are filed 2 in this case as Document 43-2; is that correct? 3 A. Yes. 4 Q. All right. And before the break, I was asking 5 you whether or not this version from 2009 was being used 6 by TMR in September of 2012. 7 A. Yes. 8 Q. Is it still the version that's being used today 9 by TMR? 10 A. Yes. 11 Q. All right. How does TMR communicate to its 12 clients or suppliers these terms and conditions? 13 A. They're on the bottom of the purchase contract. 14 They're on our website. And they should be mailed to 15 suppliers. 16 (Exhibit No. 64 is marked.) 17 Q. All right. I'm handing you what's been marked as 18 Exhibit 64 which was previously filed in this lawsuit as 19 Document 43-3 as attachment -- excuse me, as Exhibit C 20 to TMR's counter-complaint. What is Exhibit 64, sir? 21 A. It's a copy of a purchase contract. 22 Q. Are you familiar with that document? 23 A. Yes. 24 Q. Are you familiar with the purchase contract 25 format in general? Larry J. Present - September 2, 2016 13 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 9 of 18 Page ID #495 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. Does TMR know whether it has a copy of Purchase 2 Contract 53115 with a signature from a U.S. Army 3 employee? 4 A. I don't know. 5 Q. Does TMR know if it has a copy of the purchase 6 contract at Exhibit 64 that contains a TMR employee's 7 signature? 8 A. I don't know. 9 Q. Okay. 10 MR. PFEFFER: I guess we can go off the 11 record again. 12 (Discussion off the record.) 13 Q. Before the break, I was asking you about the 14 document that's been marked as Exhibit 64. Do you 15 recall those questions, sir? 16 A. Yes. 17 Q. And my question was whether TMR has a copy of 18 purchase contract No. 53115 as shown in Exhibit 4 -- 64 19 that contains a signature from a U.S. Army employee. 20 A. TMR does not. 21 Q. With regard to Exhibit 64, does TMR have a copy 22 of purchase contract No. 53115 that contains a signature 23 from a TMR employee? 24 A. TMR does not. 25 Q. I believe you stated that in September 2012, TMR Larry J. Present - September 2, 2016 16 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 10 of 18 Page ID #496 Bethblkbrn@aol.com ~ (636) 578-1104 1 would have sent its purchase accounts to its customers 2 and suppliers by mail and e -- or e-mail; is that right? 3 A. That's correct. 4 Q. Is it one or the other or always both or does it 5 just depend on the particular case? 6 A. It depends on the case. 7 Q. Do you know whether TMR sent its purchase 8 contracts to Fort Irwin by mail or e-mail? 9 A. TMR did not. 10 Q. Did TMR send this purchase contract to Fort Irwin 11 in any manner? 12 A. I don't know. 13 MR. MUSKOPF: Not that TMR is aware of -- 14 WITNESS: Not that TMR is aware of. 15 MR. MUSKOPF: -- that's what you're saying. 16 WITNESS: Okay. 17 Q. (By Mr. Pfeffer) All right. So just did TMR -- 18 does TMR have any reason to believe or any knowledge 19 that it sent the document in Exhibit 64 to anyone at 20 Fort Irwin? 21 A. Yes, it would have reason to believe it should 22 have been sent. 23 Q. Does it -- does TMR know when it was actually 24 sent? 25 A. TMR does not know for a fact that it was sent. Larry J. Present - September 2, 2016 17 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 11 of 18 Page ID #497 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. In terms of a general practice, how -- in 2 September, 2012 how would TMR have confirmed that its 3 customers and suppliers received a purchase contract 4 like the one we see in Exhibit 64? 5 A. They would have signed them and sent them back. 6 Q. And other than that, is there any other way TMR 7 would be able to confirm that its customers received the 8 purchase contract? 9 A. Only if an e-mail was sent back that they didn't 10 get it or if mail was returned if it was mailed. 11 Q. All right. Is there any documentation that TMR 12 is aware of indicating that an employee of the United 13 States Army at Fort Irwin actually received the 14 document, Exhibit 64? 15 A. No. 16 Q. Is there any documentation or information that 17 TMR has that would indicate an employee of the U.S. Army 18 was actually sent the document in Exhibit 64? 19 A. No. 20 Q. All right. And is there any information or 21 documentation that TMR has in its possession that would 22 show that an employee of the U.S. Army at Fort Irwin was 23 sent the document at Exhibit 63? 24 A. No. 25 Q. And, similarly, does TMR have any documentation Larry J. Present - September 2, 2016 18 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 12 of 18 Page ID #498 Bethblkbrn@aol.com ~ (636) 578-1104 1 or information that would establish that the doc -- that 2 Exhibit 63 was received by anyone at Fort Irwin? 3 A. No. 4 Q. Is there any other documentation or electronic 5 file that would show that an employee of the U.S. Army 6 at Fort Irwin agreed to the Terms and Conditions 7 referenced in Exhibit 63? 8 A. No. 9 Q. Do you know in general about purchase contracts 10 like the one in Exhibit 64, when those are usually 11 prepared in the sequence of the course of the purchase? 12 A. Yes. 13 Q. Okay. When would the purchase contract be 14 prepared? At what point of the transaction would it be 15 prepared? 16 A. After the commercial buyer contacts the supplier 17 and they agree upon the material that's being purchased, 18 they would create a purchase contract. 19 Q. Is it standard practice that TMR to prepare a 20 purchase contract such as the one in Exhibit 64 before 21 it receives the material at TMR's work site? 22 A. Yes. 23 Q. Do you know whether that happened with respect to 24 the transaction in Exhibit 64? 25 A. No, I don't. Larry J. Present - September 2, 2016 19 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 13 of 18 Page ID #499 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. Are you generally familiar with receiving reports 2 and grading reports as prepared by TMR? 3 A. Yes. 4 Q. I'm handing you what's previously been marked as 5 Exhibit 21 which begins at TMR 113 and runs through TMR 6 125. I believe it's been marked as Exhibit 21 7 previously. 8 MR. PFEFFER: Do you want to confirm it? 9 MR. MUSKOPF: Go ahead and we'll assume 10 that's right unless I find out otherwise. 11 Q. (By Mr. Pfeffer) Can you turn -- do you see the 12 bottom right-hand corner where there is a number -- page 13 number that starts with TMR, sir? 14 A. Yes. 15 Q. Can you turn to TMR 115 within Exhibit 21? 16 A. Yes. 17 Q. When is the receiving and grading report usually 18 prepared? 19 A. When the material is received here at our 20 facility. 21 Q. Can you tell me when the material and the 22 receiving and grading report at TMR 115 within Exhibit 23 21 was prepared? 24 A. September 14, 2012. 25 Q. Would that indicate that that ship -- that Larry J. Present - September 2, 2016 20 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 14 of 18 Page ID #500 Bethblkbrn@aol.com ~ (636) 578-1104 1 particular shipment was received on September 14, 2012? 2 A. Yes. 3 Q. All right. And in comparing the receiving and 4 grading report to the purchase contract that was marked 5 as Exhibit 64, can you identify whether or not that 6 appears to be the same material referenced in both the 7 receiving and grading report within Exhibit 21 and the 8 purchase contract, Exhibit 64? 9 A. The material seems to be the same, yes. 10 Q. All right. So in the instance of the purchase 11 contract, Exhibit 64, was that prepared before or after 12 the material had already been received at TMR? 13 A. After. 14 Q. And it would have been actually three days after 15 the material was received at TMR; is that right? 16 A. Yes. 17 Q. Is it typical for TMR to prepare a purchase 18 contract several days after it's already received its 19 shipment? 20 A. No. 21 Q. Do you know whether TMR paid for the materials 22 identified in purchase contract at Exhibit 64? 23 A. Yes. 24 Q. And if we turn to the first page of Exhibit 21, 25 would that signify the payment which includes payment Larry J. Present - September 2, 2016 21 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 15 of 18 Page ID #501 Bethblkbrn@aol.com ~ (636) 578-1104 1 for purchase contract 53115? 2 A. Yes. 3 Q. And when did TMR submit payment for the material 4 referenced in purchase contract 53115? 5 A. September 21, 2012. 6 Q. Are you familiar as to whether other versions of 7 the purchase contract document exist or have been used 8 by TMR in the past? 9 A. No, these are the -- these are the -- yes, I'm 10 familiar with that. 11 Q. Okay. This is kind of hard to see because it's 12 upside down but this is a document that was produced as 13 TMR 1560. Are you familiar with that document, sir? 14 A. Yes. 15 Q. All right. Is this another version of a purchase 16 contract? 17 A. Yes. 18 Q. And the document produced at TMR 1560 does not 19 contain the reference to Terms and Conditions at the 20 bottom, does it, sir? 21 A. No, it doesn't. 22 Q. Do you know -- and it has a slightly different 23 format from what was marked as Exhibit 64 in terms of 24 the way that the document, itself, is set up with the 25 header and the general columns; is that right? Larry J. Present - September 2, 2016 22 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 16 of 18 Page ID #502 Bethblkbrn@aol.com ~ (636) 578-1104 1 A. Yes. 2 Q. Do you know why that there are two different 3 versions of the purchase contract? 4 A. Yes. 5 Q. Why is that? 6 A. This one is for internal use -- 7 Q. The -- 8 A. -- the 1560. 9 Q. Okay. 10 A. This one, Exhibit 64, is for external to send to 11 the supplier. 12 Q. So when a purchase contract is prepared, it gets 13 prepared in multiple formats, is that what I'm 14 understanding? 15 A. Yes. 16 Q. One is for internal use and one is intended to be 17 sent to the supplier? 18 A. Yes. 19 Q. And, likewise, this is a document that's been 20 produced as TMR 1656. Is that another version of the 21 purchase contract? 22 A. No. 23 Q. It's essentially the same as what we saw at 1560 24 except for it has in bold letters across the middle TMR 25 Internal Use Only. Larry J. Present - September 2, 2016 23 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 17 of 18 Page ID #503 Bethblkbrn@aol.com ~ (636) 578-1104 1 A. Yes. 2 Q. Is that just a water mark that TMR at some point 3 began putting on its purchase contracts? 4 A. Yes. 5 Q. So for each shipment, there should be an internal 6 purchase contract as well as an external purchase 7 contract? 8 A. Correct. 9 Q. Okay. I'm not going to mark those just because 10 that makes sense. Aside from the purchase contract we 11 see at 64 in that particular format, is there any other 12 document that TMR uses to obtain agreement to its Terms 13 and Conditions from suppliers and clients? 14 A. No. 15 Q. All right. And TMR has no copies of any other 16 document that would specifically include a signature 17 from a U.S. Army employee agreeing to the Terms and 18 Conditions that have been marked as Exhibit 63; is that 19 correct? 20 A. Correct. 21 Q. Okay. Let's move on to topic area No. 10. And 22 topic area No. 10 is an area of inquiry that asks for 23 information concerning the sources, nature and amounts 24 of any damages incurred as alleged in TMR's counterclaim 25 against the United States of America for negligence. Larry J. Present - September 2, 2016 24 Case 3:15-cv-00547-SMY-SCW Document 80-3 Filed 09/23/16 Page 18 of 18 Page ID #504 EXHIBIT 4 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 1 of 23 Page ID #505 Bethblkbrn@aol.com ~ (636) 578-1104 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE 3 SOUTHERN DISTRICT OF ILLINOIS 4 5 ADRIANA ORNELAS, as ) 6 Administrator of the Estate ) 7 of RODOLFO ROMO, Deceased, ) 8 Plaintiff, ) 9 vs. ) No. 15-CV-00547-SMY-SCW 10 THE UNITED STATES OF AMERICA ) 11 and TOTALL METAL RECYCLING, ) 12 INC., ) 13 Defendants. ) 14 15 16 17 DEPOSITION OF LANCE PASZKIEWICZ 18 On Behalf of Defendants 19 20 21 22 23 June 29, 2016 24 25 1 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 2 of 23 Page ID #506 Bethblkbrn@aol.com ~ (636) 578-1104 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE 3 SOUTHERN DISTRICT OF ILLINOIS 4 5 ADRIANA ORNELAS, as ) 6 Administrator of the Estate ) 7 of RODOLFO ROMO, Deceased, ) 8 Plaintiff, ) 9 vs. ) No. 15-CV-00547-SMY-SCW 10 THE UNITED STATES OF AMERICA ) 11 and TOTALL METAL RECYCLING, ) 12 INC., ) 13 Defendants. ) 14 15 DEPOSITION OF LANCE PASZKIEWICZ, to be used in an 16 action pending in the District Court of the United States, 17 for the Southern District of Illinois, wherein Adriana 18 Ornelas, Administrator of the Estate of Rodolfo Romo, 19 Deceased, is Plaintiff, and The United States of America 20 and Totall Metal Recycling, Inc., are Defendants, pursuant 21 to Notice, under the provisions of Rule 26 of the Rules of 22 Civil Procedure; taken on the 29th day of June, A.D., 2016, 23 at 9 Executive Drive, in the City of Fairview Heights, 24 State of Illinois, before a Certified Court Reporter within 25 and for the State of Illinois. 2 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 3 of 23 Page ID #507 Bethblkbrn@aol.com ~ (636) 578-1104 1 APPEARANCES OF COUNSEL: 2 3 Plaintiff was represented by: 4 Kelly T. Crosby 5 KEEFE, KEEFE & UNSELL, PC 6 6 Executive Woods Court 7 Belleville, Illinois 62226 8 9 Defendant, United States of America, was represented by: 10 David J. Pfeffer and Adam E. Hannah 11 UNITED STATES ATTORNEY'S OFFICE 12 9 Executive Drive 13 Fairview Heights, Illinois 62208 14 15 Defendant, Totall Metal Recycling, was represented by: 16 W. Jeffrey Muskopf 17 SMITHAMUNDSEN, LLC 18 120 South Central Avenue, Suite 700 19 Clayton, Missouri 63105 20 and 21 Jason M. Gourley 22 DONOVAN ROSE NESTER, PC 23 201 South Illinois Street 24 Belleville, Illinois 62220 25 3 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 4 of 23 Page ID #508 Bethblkbrn@aol.com ~ (636) 578-1104 1 I N D E X 2 3 WITNESS: LANCE PASZKIEWICZ 4 Page 5 Examination by Mr. Pfeffer. . . . . . . . . . . . 5 6 Examination by Ms. Crosby . . . . . . . . . . . . 190 7 8 E X H I B I T S 9 Page 10 Defendant's Deposition Exhibit 27 . . . . . . . . 8 11 Defendant's Deposition Exhibit 28 . . . . . . . . 16 12 Defendant's Deposition Exhibit 29 . . . . . . . . 71 13 Defendant's Deposition Exhibit 30 . . . . . . . . 103 14 Defendant's Deposition Exhibit 31 . . . . . . . . 108 15 Defendant's Deposition Exhibit 32 . . . . . . . . 137 16 Defendant's Deposition Exhibit 33 . . . . . . . . 177 17 Defendant's Deposition Exhibit 34 . . . . . . . . 180 18 (All exhibits attached hereto.) 19 20 21 22 23 24 25 4 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 5 of 23 Page ID #509 Bethblkbrn@aol.com ~ (636) 578-1104 1 LANCE PASZKIEWICZ, 2 being first duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 QUESTIONS BY MR. PFEFFER: 5 Q. Good morning, sir. My name is David Pfeffer. 6 I'm an attorney with the United States Attorney's Office 7 for the Southern District of Illinois representing the 8 United States of America in this case. Have you ever had 9 your deposition taken before? 10 A. No. 11 Q. All right. To get started, would you go ahead 12 and state your name for the record and spell your last name 13 for the court reporter? 14 A. Lance Paszkiewicz, P-a-s-z-k-i-e-w-i-c-z. 15 Q. And I'm sure I'll mispronounce that as I've been 16 saying Paszkiewicz, but please excuse me if I do 17 mispronounce it. Okay. Well, as you've never had your 18 deposition taken before, we'll go over some general 19 deposition ground rules. You've just been sworn in; so 20 you're under oath just as if you were in a court of law. 21 Do you understand that? 22 A. Yes. 23 Q. And the court reporter will be taking down 24 everything you, I or anyone else says in the course of the 25 deposition today; so I ask that if you don't understand a Lance Paszkiewicz - June 29, 2016 5 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 6 of 23 Page ID #510 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. All right. And it's my understanding that you 2 have been designated essentially to answer questions on 3 behalf of TMR with respect to odd numbered topics, which 4 are 1, 3, 5, 7 and 9. Is that your understanding, sir? 5 A. Yes. 6 Q. Okay. Do you understand that in your capacity as 7 TMR's corporate representative that you've been designated 8 to testify about information that is known or reasonably 9 available to TMR? 10 A. Yes. 11 Q. Are you prepared to speak on those topics? 12 A. Yes. 13 14 15 16 17 18 19 20 21 22 23 24 25 Lance Paszkiewicz - June 29, 2016 9 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 7 of 23 Page ID #511 Bethblkbrn@aol.com ~ (636) 578-1104 1 2 3 4 Q. Do you know if there's a board of directors or 5 anything like that for Totall Metal Recycling? 6 A. Yes. 7 Q. Who's on the board of directors, do you know? 8 A. I believe Toby, Dennis, Kip, Larry, myself. And 9 I'm not sure, there might be one other person. I'm not 10 sure. 11 12 13 14 15 16 17 18 19 20 21 22 Q. Do you know, do you have an ownership interest in 23 Totall Metal Recycling? 24 A. Yes. 25 Lance Paszkiewicz - June 29, 2016 52 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 8 of 23 Page ID #512 Bethblkbrn@aol.com ~ (636) 578-1104 1 2 Q. Other than Toby Suarez, do the other -- do you 3 know the -- whether the other members of the board of 4 directors have ownership interests? 5 A. Yes. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lance Paszkiewicz - June 29, 2016 53 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 9 of 23 Page ID #513 Bethblkbrn@aol.com ~ (636) 578-1104 1 of the wood and crate in Exhibit 19, are you familiar with 2 the way that those would be packaged when they're taken off 3 of the truck? 4 A. I assume it would look just like that. 5 Q. But not wrapped up or sealed over the top or 6 anything like that? 7 A. They could be. 8 Q. Okay. Are you familiar with instances in which 9 wooden crates are -- are sealed in -- in packaging? 10 A. Yeah. 11 Q. Okay. And if -- if -- whether it's sealed or 12 it's open top upon arrival at TMR, what does TMR personnel 13 do with that material once it arrives? 14 A. Once it arrives, it's unloaded from the truck and 15 put on the floor scale and the person there at the floor 16 scale will -- if it's sealed, open it, inspect the 17 material, and put on the -- mark the weight on the grading 18 report. 19 Q. And you said the person receiving it would -- 20 what was the position of the person receiving the material? 21 A. A grader or -- is what I refer to them as. I 22 don't know the technical -- if there's an exact title. 23 Q. Do you know who would have been in those 24 positions as of September 14, 2012? 25 A. For this, Juan Ortiz signed the paperwork. Lance Paszkiewicz - June 29, 2016 115 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 10 of 23 Page ID #514 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. Juan Ortiz? W -- or excuse me -- J-u-a-n? 2 A. Yes. 3 Q. O-r-t-i-z? 4 A. Yes. 5 Q. And would that be the person who would conduct 6 the actual inspection of the material? 7 A. Yes. 8 Q. All right. What is the -- what is the inspection 9 that your graders or individuals like Mr. Ortiz are trained 10 to conduct upon receipt of crates containing scrap metal? 11 A. To visually inspect it, then determine what type 12 of material it is, whether -- we have nighttime analyzers, 13 they can analyze it with that, or a magnet to determine if 14 it's ferrous or non-ferrous. And then that's what they're 15 doing, trying to determine what type of material it is. 16 Q. Prior to the explosion, would employees receiving 17 material such as -- as we're talking about have been 18 trained to identify the caliber or nature of the material 19 to ensure it was the type and sort that the -- that TMR 20 intended to purchase? 21 A. I don't think they would have been trained on any 22 calibers or anything. 23 Q. Would they have been trained not to accept things 24 that resemble explosive mortars? 25 A. No. Lance Paszkiewicz - June 29, 2016 116 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 11 of 23 Page ID #515 Bethblkbrn@aol.com ~ (636) 578-1104 1 ray inspection required by the -- 2 A. No. 3 Q. -- safety program? 4 A. No. 5 Q. That's simply to determine what types of metal 6 you're dealing with? 7 A. Correct. 8 Q. All right. Any other aspects of the inspection 9 that would occur by the grader, Mr. Ortiz, or -- or any 10 other individuals like Mr. Ortiz at the time of its 11 arrival? 12 A. Generally, they do the inspection. I know we 13 take on -- for instance, if it would be something that we 14 didn't expect to get and if there was an issue with the 15 buyer, we would take a picture so the buyer had a picture 16 of what the material was. In this instance, too, for these 17 receivings, they were taking photos of the material as well 18 as it came in on certain items. 19 Q. Okay. Are there any photos in TMR's possession 20 associated with the arrival of shipments on September 14, 21 2012? 22 A. Yes. 23 Q. Are there photos of this shipment? 24 A. Yes. 25 MR. PFEFFER: Can we go off the record? Lance Paszkiewicz - June 29, 2016 123 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 12 of 23 Page ID #516 Bethblkbrn@aol.com ~ (636) 578-1104 1 (Whereupon, a brief discussion was held off the 2 record.) 3 Q. (By Mr. Pfeffer) Going back on the record, sir, 4 you indicated in your prior testimony that it was your 5 understanding that photographs were taken from the shipment 6 identified at TMR 120, arriving on September 14, 2012, from 7 Fort Irwin. Do I understand that correctly? 8 A. Yes. 9 Q. Okay. And we've been directed to four 10 photographs in TMR's production. It's TMR 796, 797, 798, 11 and 799. Are you -- you want to take a quick look at those 12 and can you confirm if those four photographs, to the best 13 of your knowledge, are the entirety of the photographs that 14 were taken by TMR upon the arrival of the shipment on 15 September 14, 2012? 16 A. Yes. 17 Q. Do you know -- And this shipment consisted of a 18 single truck; is that correct? 19 A. Correct. 20 Q. Do you know the perspective from which TMR 798 is 21 taken? 22 A. It looks like it's on the truck. 23 Q. And do you know what materials are depicted in 24 TMR 798? 25 A. They look like ammo cans. Lance Paszkiewicz - June 29, 2016 124 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 13 of 23 Page ID #517 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. Do you see anything other than ammo cans in 798? 2 A. Nope. 3 Q. All right. And in TMR 797, do you recognize what 4 those items are? 5 A. Ammo cans. 6 Q. Do you see anything other than ammo cans depicted 7 in TMR 797? 8 A. Nope. 9 Q. And with respect to TMR 799, do you know what is 10 depicted in that photograph? 11 A. It looks like brass shells. 12 Q. Do you see anything other than brass shells in 13 799? 14 A. No. 15 Q. All right. And TMR 796, have you seen that 16 photograph before? 17 A. Yes. 18 Q. And do you know what's depicted in 796? 19 A. Looks like the scrap aluminum and steel. 20 Q. Do you know what the scrap that's contained in 21 that picture is from, what those items are? 22 A. On the top, I've been told that this is a fin 23 section. 24 Q. So the -- the silver-colored item is what you're 25 referring to? Lance Paszkiewicz - June 29, 2016 125 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 14 of 23 Page ID #518 Bethblkbrn@aol.com ~ (636) 578-1104 1 A. Yes. And the blue pieces are sabots? 2 Q. And what is a sabot? 3 A. Something that is around the projectile and falls 4 out later. 5 Q. Do you know what those items are made out of? 6 A. I believe they're aluminum. 7 Q. All right. Other than the fin and what you 8 referred to as sabots, do you see anything else that you 9 could identify in 796? 10 A. It looks like steel below it. 11 Q. Can you identify what the item that you -- you 12 believe is steel is -- consists of? 13 A. No, I can't tell. 14 Q. And those are all of the photos that exist in 15 TMR's database with respect to this particular shipment; is 16 that correct? 17 A. Yes. 18 Q. All right. In those four photographs, do you see 19 any materials that consist of entire objects like those 20 exhibited in Exhibit No. 19? 21 A. No. 22 Q. And if you turn to TMR 121 and 122, have you seen 23 those documents before? 24 A. Yes. 25 MR. PFEFFER: Have these ever been made an Lance Paszkiewicz - June 29, 2016 126 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 15 of 23 Page ID #519 Bethblkbrn@aol.com ~ (636) 578-1104 1 exhibit? 2 MR. MUSKOPF: I think they were. 3 MR. PFEFFER: They were? 4 MR. GOURLEY: They were Fort Irwin, weren't they? 5 MR. MUSKOPF: Yeah. 6 MR. PFEFFER: I couldn't remember if they 7 actually were or not, but -- 8 MR. MUSKOPF: I don't know what the number is. I 9 thought I had that stuff with me, but I don't. 10 MR. PFEFFER: I think it was Exhibit 21, which 11 was TMR 113 to 125. 12 Q. (By Mr. Pfeffer) So you have what's been 13 previously marked as Exhibit 21 in front of you, sir, and 14 if you turn to TMR 120, 121, and 122, are you familiar with 15 those three documents? 16 A. Yes. 17 Q. And are those the only three shipping documents 18 on Form 1348 that correspond to this particular shipment 19 received on September 14, 2012? 20 A. No. 21 Q. Well, I probably asked that incorrectly. There's 22 also a bill of lading at TMR 118? 23 A. Yes. 24 Q. And a packing list at 119? 25 A. Correct. Lance Paszkiewicz - June 29, 2016 127 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 16 of 23 Page ID #520 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. Okay. Let's look at the packing list on 119. 2 Are you with me, sir? 3 A. Yes. 4 Q. Okay. So in Exhibit 21, the packing list at 119 5 references four pallets of .50 caliber brass; is that 6 correct? 7 A. Yes. 8 Q. Forty-eight pallets of M2A1 cans; is that 9 correct? 10 A. Yes. 11 Q. And two pallets of what's described as 60 and 81- 12 millimeter steel; is that correct? 13 A. Yes. 14 Q. All right. And in looking at those photographs, 15 can you identify which photographs correspond to the .50 16 caliber brass component of that shipment? 17 A. 799. 18 Q. Okay. Bates stamp TMR 799. Were there any of 19 the other photos that exhibited the .50 caliber brass? 20 A. No. 21 Q. All right. And if we look at TMR 798 and 797, do 22 those correspond to the M2A1 cans that are listed on this 23 packing list? 24 A. Yes. 25 Q. And so then that leaves TMR 796 as the remaining Lance Paszkiewicz - June 29, 2016 128 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 17 of 23 Page ID #521 Bethblkbrn@aol.com ~ (636) 578-1104 1 photo and is -- do you have any understanding of what 2 component on the packing list that could refer to? 3 A. Sixty and 81mm steel. 4 Q. In other words, it -- it doesn't exhibit .50 5 caliber brass; correct? 6 A. Correct. 7 Q. And it does not exhibit M2A1 cans; is that 8 correct? 9 A. Correct. 10 Q. Okay. So back to the -- back to the discussion 11 of the shipment. We've gotten to the point where you've 12 indicated the inspection also includes taking some 13 photographs which we've now looked at; correct? 14 A. Correct. 15 Q. All right. What happens after that inspection is 16 complete? Is there any other component to the inspection 17 that we haven't discussed upon the arrival of the truck? 18 A. No. 19 Q. What would happen next? 20 A. The material would then be put to a designated 21 area. 22 Q. All right. Before we get to that, I don't think 23 we've talked about whether any document -- other 24 documentation is created. Are you aware of any 25 documentation that's created at the site of the receiving Lance Paszkiewicz - June 29, 2016 129 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 18 of 23 Page ID #522 Bethblkbrn@aol.com ~ (636) 578-1104 1 and -- and weighing? 2 A. The receiving and grading report. 3 Q. All right. Can you turn to Exhibit 21 at TMR 4 115? Is that the document referred to as the receiving and 5 grading report? 6 A. Yes. 7 Q. And that document indicates that this is being 8 received at the B-4 warehouse; is that right? 9 A. Yes. 10 Q. Does that indicate that's where it's received or 11 that that's where the material is designated for storage? 12 A. That's where it was received. 13 Q. Okay. It also identifies the date and it's -- it 14 says 9/14/12, company, Fort Irwin, and it also has an 15 identification number for the vehicle; is that right? 16 A. Yes. 17 Q. Okay. Then -- then what other information is 18 recorded by your staff at TMR with respect to this 19 particular shipment? 20 A. They will write down a type of packaging, a 21 description of the item, the gross tare and net weights. 22 On this item, it looks like they've counted the number of 23 cans that were on each skid, and then the comments usually 24 refer to -- it could be any other description of the 25 material or something else to identify the material. Lance Paszkiewicz - June 29, 2016 130 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 19 of 23 Page ID #523 Bethblkbrn@aol.com ~ (636) 578-1104 1 Q. All right. With respect to the signature on this 2 sheet, can you identify that signature for me? 3 A. It's Juan Ortiz. 4 Q. Would Juan Ortiz have been the individual who 5 would have viewed, inspected, and photographed the items 6 that came in on the truck? 7 A. Yes. 8 Q. He's also the one who made the handwritten 9 remarks recording the contents of the truck? 10 A. Yes. 11 Q. And the associated weighs, etc.? 12 A. Yes. 13 Q. Are you aware of whether Mr. Ortiz has explained 14 the remarks that he recorded under the description after 15 the accident? Has Mr. Ortiz, as part of the investigation 16 that TMR conducted after the accident, interpreted the 17 information that he recorded under the description section? 18 A. I know we asked if he remembered it and we showed 19 him the document and he really didn't remember any -- 20 anything from it. 21 Q. Did he have an explanation for what EXP stands 22 for? 23 A. No, not to my knowledge. 24 Q. Did he have a specific recollection of this 25 particular shipment? Lance Paszkiewicz - June 29, 2016 131 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 20 of 23 Page ID #524 Bethblkbrn@aol.com ~ (636) 578-1104 1 A. No. 2 Q. Does anything about this document tell you what 3 happened to the various items received with this shipment 4 after they left the weighing area? 5 A. No. 6 Q. Does TMR possess any documentation that explains 7 or records where these materials would have been moved to 8 within the TMR work site? 9 A. No. 10 Q. Is there any other documentation at TMR that 11 tracks the movement of the material after it's taken out of 12 the receiving area up until the point of its final 13 disposal? 14 A. No. 15 Q. Okay. So after we've gone through the weighing 16 and the inspection and the photographing, what happens next 17 with a shipment like this when it comes in? 18 A. The material will go to a designated area, 19 whether it's for storage or for processing. Then the 20 receiving and grading report is turned in to the admin 21 department and they will then do their processing to get it 22 into the database. 23 Q. All right. So I may have misheard you, but can 24 you just repeat where the -- what happens with the specific 25 material at this point? Lance Paszkiewicz - June 29, 2016 132 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 21 of 23 Page ID #525 Bethblkbrn@aol.com ~ (636) 578-1104 1 A. It'll go to a designated area, whether it's for 2 processing or to be stored to be shipped out later. 3 Q. All right. If -- just assuming as a hypothetical 4 that this shipment -- at least the material seen in Exhibit 5 19 was brought in with respect to the 9/14/12 shipment, do 6 you have any knowledge of where it would have been stored 7 in the two years in between its arrival at TMR and August 8 25, 2014? 9 A. No. 10 Q. Where would that type of material typically go if 11 it was not going to be immediately processed? 12 A. It -- for instance, material on here, ammo cans, 13 we would -- we had an area for the ammo cans. They would 14 probably be resold. 15 Q. Where -- where were -- where's the material for 16 the ammo cans located? 17 A. Outside of building B-4, between B-4 and B-5. 18 Q. Let me just -- 19 MR. PFEFFER: Where are the other exhibits? 20 MR. MUSKOPF: In front of you. 21 MR. GOURLEY: Stacked up in front of you there. 22 Q. (By Mr. Pfeffer) Okay. What about the shell 23 casings? 24 A. They would be stored inside B-4. 25 Q. Okay. Lance Paszkiewicz - June 29, 2016 133 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 22 of 23 Page ID #526 Bethblkbrn@aol.com ~ (636) 578-1104 1 A. And an aluminum steel item would either go to 2 steel for shredding or aluminum for shredding or -- those 3 are the areas we have for -- 4 Q. Okay. If it went to steel or aluminum for 5 shredding, where would that location be? 6 A. You want me to show you on the map? We had an 7 aluminum breakage bin that was right in the area where the 8 accident happened and we had a steel area in the -- in 9 front of B-1, in front of the docks. 10 Q. Are those both outdoor areas? 11 A. Yes. 12 Q. Is it common to receive a shipment and maintain 13 it inside of its crate for two years in the outdoor storage 14 areas? 15 A. No. 16 Q. Would that surprise you if something sat out 17 there in a crate for -- for two years in either of the 18 areas you've identified without being processed or piled 19 up? 20 A. No, it could happen. 21 Q. Are you aware of any individuals who are employed 22 by TMR who knew that the material in question was sitting 23 in storage outdoors for a two-year period? 24 A. No. 25 Q. With respect to the -- after the incident Lance Paszkiewicz - June 29, 2016 134 Case 3:15-cv-00547-SMY-SCW Document 80-4 Filed 09/23/16 Page 23 of 23 Page ID #527 EXHIBIT 5 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 1 of 15 Page ID #528 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 2 of 15 Page ID #529 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS 2 ADRIANA ORNELAS, as ) 3 Administrator of the ) Estate of RODOLFO ROMO, ) 4 Deceased, ) ) Civil No. 5 Plaintiff, ) 15-CV-00547-SMY-SCW ) 6 vs. ) ) 7 UNITED STATES OF AMERICA, ) ) 8 Defendant. ) 9 APPEARANCES 10 For Plaintiff: 11 Kelly T. Crosby, Esq. Keefe, Keefe & Unsell, P.C. 12 #6 Executive Woods Court Belleville, IL 62226 13 Marleen Suarez, Esq. 14 Suarez Law Office, PC 850 Vandalia, Suite 300 15 Collinsville, IL 62234 16 For Defendants: (Totall Metal Recycling, Inc.) 17 W. Jeffrey Muskopf, Esq. SmithAmundsen LLC 18 120 S. Central Ave., Ste. 700 St. Louis, MO 63105 19 Jason M. Gourley, Esq. 20 Donovan, Rose, Nester, P.C. 201 S. Illinois St. 21 Belleville, IL 62220 22 (United States of America) Adam E. Hanna, Esq. 23 Matt Westbrook, legal extern (to p. 138) U.S. Attorney's Office 24 Southern District of Illinois 9 Executive Drive 25 Fairview Heights, IL 62208 SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 2 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 3 of 15 Page ID #530 1 MAJ Nolan Koon Litigation Attorney 2 US Army Legal Services Agency Litigation Division 3 9275 Gunston Road Fort Belvoir, VA 22060 4 5 INDEX OF INTERROGATION 6 Direct Examination by Mr. Muskopf 5 7 Cross-Examination by Ms. Crosby 121 Cross-Examination by Mr. Gourley 126 8 Redirect Examination by Mr. Muskopf 139 Cross-Examination by Mr. Hanna 171 9 10 DEFENDANT'S EXHIBITS 11 7 Diagram 43 12 8 Narrative 45 9 Complete report with narrative 50 13 10 Group of photos 52 10A Photo of contact list 60 14 10B Photo of device 139 10C Photo of containers 152 15 10D Photo of scene 145 10E Photo of truck bed 147 16 10F Photo of devices 150 10G Photo of cartridges 151 17 10H Photo of shell popper 162 10I Photo of scene 165 18 11 4-4-15 military award transcription 61 12 10-9-14 e-mail 69 19 Original exhibits attached to original transcript. 20 21 22 23 24 25 SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 3 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 4 of 15 Page ID #531 1 IT IS STIPULATED AND AGREED by and 2 between counsel for Plaintiff and counsel for 3 Defendant that the deposition of SERGEANT ANDREW 4 DRYSDALE may be taken pursuant to and in 5 accordance with the Federal Rules of Civil 6 Procedure, by and on behalf of the Defendant, on 7 April 6, 2016, at the United States Attorney's 8 Office, 9 Executive Drive, Fairview Heights, 9 Illinois, before Lynn E. Bartimus, a Certified 10 Shorthand Reporter; that the issuance of notice is 11 waived, and that this deposition may be taken with 12 the same force and effect as if all Federal Rules 13 had been complied with. 14 IT IS FURTHER STIPULATED AND AGREED 15 that any and all objections to all or any part of 16 this deposition are hereby reserved and may be 17 raised at the trial of this cause; that the 18 deposition is designated confidential; and that 19 the signature of the deponent is reserved. 20 THE DEPOSITION BEGAN at 1:07 p.m. and 21 finished at 5:42 p.m. 22 SERGEANT ANDREW DRYSDALE, produced, 23 sworn, and examined as a witness on behalf of the 24 Defendant, testified and deposed as follows: 25 SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 4 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 5 of 15 Page ID #532 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right. So the incident at TMR, can SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 35 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 6 of 15 Page ID #533 1 you give us an overview? You got a call. You 2 went out there. You did some things. You 3 completed your work. Can you give me a little bit 4 more detail than that, at about a 30,000 foot 5 level? Explain to us what you did. 6 A. Right. So we have a 24-hour 7 capability, response capability, at the Air Force 8 base. And as a -- we designate a team to be on 9 what we refer to as standby for a week at a time, 10 24/7. And the morning of the incident, I received 11 a phone call. The manner in which that phone call 12 got to me was actually a little bit atypical. It 13 came through the command post to my flight, to the 14 gym, to the basketball court, where I was at, at 15 the time. We responded within, I would say, 16 approximately two hours of -- to the location 17 itself. 18 An individual that I know personally, 19 Tony Rogers, I spoke to him on the phone, because 20 he was at the scene prior to me. He is a reserve 21 explosive ordnance disposal technician. We share 22 a building. And he is also a uniform police, I 23 believe, as well as a bomb appraisal officer. And 24 en route to his job, he diverted and went to the 25 scene. He actually sent me photos on my phone and SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 36 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 7 of 15 Page ID #534 1 I talked to him. Spoke to him on the phone. 2 Because the information that came across on the 3 initial call was a detonation had occurred. They 4 believed it to be of military ordnance. And they 5 are requesting your response. That was it. 6 And so en route, I talked to Tony. He 7 informed me that there were two personnel that 8 were deceased, one individual that was in the 9 hospital. And that there were lots of ordnance 10 down -- what we refer to as downrange. Police 11 were already on standby. Medical personnel were 12 already there. I arrived. And at that point, I 13 was the team leader. I spoke to -- I brought a 14 Master Sergeant along. I'm sorry. I will throw 15 that in. I brought a Master Sergeant along or 16 requested that he come with because of the 17 fatalities. I asked for his assistance to be the 18 mediator between, I'll say, higher-ups, so that I 19 could actually perform the work downrange without 20 interruption. 21 When I got on scene, I spoke to Tony 22 and Secretary of State Bomb Squad Unit. They were 23 there prior to me. They were one of the initial 24 individuals called. And they had informed me that 25 they were able to go downrange and ensure that SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 37 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 8 of 15 Page ID #535 1 there were no signs of life. And at that point, 2 they did not know the conditions of the munitions 3 down there. And so they pulled back and waited 4 for me to arrive. 5 I reassured -- or I was informed that 6 of the cordon, the evacuation of other buildings, 7 I was given a brief understanding as to where the 8 items were or what they consisted of. And then 9 under the -- what we refer to as PPE, personal 10 protection equipment, myself and one team member 11 went toward the item, downrange. And I was able 12 to get a better understanding. I was asked by 13 on-scene personnel, the on-scene commander. I was 14 asked by him that to first try to remove the 15 individuals, the remains of the individuals. So 16 that coroner was there on scene. And those 17 individuals could be removed, and the families 18 could be -- could go about what needed to happen 19 on that end. I was also asked to escort, if at 20 all possible, a photographer through the scene to 21 take pictures before the human remains were taken 22 from the scene. Before I could do that, there 23 were items, I believe, two items, that were 24 underneath one of the bodies. And not knowing the 25 condition of those items, I remote -- remotely SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 38 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 9 of 15 Page ID #536 1 moved them. Remotely using a rope. I attached to 2 those items, went behind cover, remotely moved 3 those items, ensured that they were no longer in a 4 unpredictable state. And then I was able to 5 escort the photographer through the scene. 6 After I accomplished that, I received, 7 not to be cavalier, I guess, body bags. I don't 8 know how else I would diplomatically say that. 9 Q. Sure. 10 A. But body bags. And I cleared a path to 11 the human remains. And I had assistance from 12 Secretary of State Bomb Squad. And we put the 13 human remains into -- into the body bags and 14 removed them from the scene, to the best of our 15 extent, each and every part of the remains. 16 After we did that, I evaluated the 17 scene. My -- my priority shifted back to my 18 typical work, I would say. Typical work for a 19 stateside call, in an atypical situation. But 20 there were hundreds of munitions down there. I, 21 at that point, had to come up with a game plan of 22 how to go about identifying and determining the 23 condition of each one of those items. I noticed 24 that a lot of the items were the same. And I 25 started with the one that looked to be most SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 39 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 10 of 15 Page ID #537 1 apparent, I guess. The one that was there. The 2 most of it. And I found that item. I did a 3 reconnaissance on it, my team and I. Researched 4 it in our database. And determined we knew how it 5 functioned. Determined how to tell if it was in a 6 safe or unsafe condition. And at that point, we 7 were able to manually pick those items up and say 8 this item can be determined safe, just based on 9 its appearance alone. And we would put that into 10 what I refer to as a scrap pile, a designated area 11 that just we know explosives are involved. This 12 is just metal. And if it could not be determined 13 the condition, just by appearance alone, then I 14 put it into another area to address at a later 15 point. And I say by appearance only, because we 16 have other techniques to determine whether or not, 17 for example, an x-ray machine. 18 Q. Uh-huh. 19 A. But the logistics of x-raying hundreds 20 of munitions is difficult and time-consuming. And 21 we best felt that if it could not be visually 22 determined safe, we would, at that time, set them 23 to the side and address. We will see how many of 24 those we have. Once we accomplished all of the -- 25 that one type, we moved on to another type of SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 40 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 11 of 15 Page ID #538 1 munition. And did the exact same process. The 2 reconnaissance. The looking it up in our 3 database. Finding out if there were ever 4 explosives to begin with inside of it. To what 5 extent. And then what it looks like visually, if 6 it is safe or unsafe. And I proceeded through 7 each type of munition over the space of two days, 8 accomplishing the exact same process for each one, 9 giving it a designated area. If it was what I 10 refer to as scrap or if it was unclear as to 11 whether or not it had explosives in it. 12 Once we had a good amount of -- and 13 that's a relative term, I understand, a good 14 amount -- of items, I then had to coordinate with 15 the on-scene commander as to a location that I 16 could take these items and dispose of them. We 17 disposed of those items by detonation. And we 18 moved those items by dump truck. We got with the 19 Department of -- I want to say Water Works, water 20 works type of people. And they provided us a -- I 21 asked for dump trucks that had a bed of sand and 22 large sandbags on the front end, toward the cab of 23 the vehicle, to protect the individuals driving. 24 And we laid them in the same orientation, in a 25 horizontal orientation, inside a bed of sand. And SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 41 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 12 of 15 Page ID #539 1 the route was cleared by officials. And we 2 proceeded out to the island in the Mississippi. I 3 don't know if it's referred to as the Chain of 4 Rocks. There is an island out there. And it was 5 cleared by the Department of Natural Resources, or 6 the DNR, Illinois DNR, I believe, gave us our 7 evacuation or the cleared area on the island. The 8 Mississippi was shut down by the Coast Guard. And 9 we were able to perform our detonations out there. 10 Q. Was this two days after the explosion? 11 A. We actually did a detonation. 12 Q. Oh, I'm sorry. Go ahead. 13 A. I apologize. 14 Q. No. You know what my question was. 15 A. We did a detonation on the first day. 16 We actually had the scene, the cordon, controlled 17 by uniformed personnel overnight. And our team 18 responded again the next day to the scene and 19 continued our work the next morning and did a 20 detonation, a second detonation, on day two. 21 At that point, once I had gone through 22 each and every item that was downrange, in that 23 vicinity of the TMR center, so specifically, that 24 area and not the entirety of TMR, we -- once I had 25 gone through every item and I felt confident that SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 42 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 13 of 15 Page ID #540 1 I had removed all explosive hazards, I, at that 2 point, had turned the scene back over to -- or I 3 had informed the on-scene commander. And there 4 were other agencies. I believe the ATF wanted 5 follow-up down there. I escorted them down there, 6 explained more of -- answered any questions they 7 had. And then my team departed at that point. 8 That went a lot quicker than this 9 seemed, those two days as well. It seemed a lot 10 more. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 43 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 14 of 15 Page ID #541 1 CROSS-EXAMINATION 2 BY MR. HANNA: 3 Q. Andrew, did you locate any intact high 4 explosive rounds at TMR, during your time out 5 there? 6 A. No. 7 Q. Okay. When you detonated or destroyed 8 the items that you did find, did you have any 9 reason to believe that those items contained high 10 explosives? 11 A. No. Not whenever I -- and I say no 12 with confidence in the sense that not when I 13 loaded it into the -- I never annotated it as an 14 item that could possibly have it or that should 15 have it in it. And I never saw any kind of what I 16 referred to as rapport or response from the 17 detonation that would have indicated otherwise. 18 So there wasn't, for example, additional high 19 explosives in that fireball or in that detonation 20 that would have led me to believe, like, holy 21 smokes, I think something else was in there. 22 Right? One of those things had high explosives in 23 it or anything to that extent. 24 MR. HANNA: Okay. That's all I have. 25 MR. MUSKOPF: You are free to go. SERGEANT ANDREW DRYSDALE Confidential ORNELAS vs. USA April 06, 2016 800.211.DEPO (3376) EsquireSolutions.com 171 Case 3:15-cv-00547-SMY-SCW Document 80-5 Filed 09/23/16 Page 15 of 15 Page ID #542 EXHIBIT 6 Case 3:15-cv-00547-SMY-SCW Document 80-6 Filed 09/23/16 Page 1 of 5 Page ID #543 Case 3:15-cv-00547-SMY-SCW Document 80-6 Filed 09/23/16 Page 2 of 5 Page ID #544 Case 3:15-cv-00547-SMY-SCW Document 80-6 Filed 09/23/16 Page 3 of 5 Page ID #545 Case 3:15-cv-00547-SMY-SCW Document 80-6 Filed 09/23/16 Page 4 of 5 Page ID #546 Case 3:15-cv-00547-SMY-SCW Document 80-6 Filed 09/23/16 Page 5 of 5 Page ID #547 EXHIBIT 7 Case 3:15-cv-00547-SMY-SCW Document 80-7 Filed 09/23/16 Page 1 of 3 Page ID #548 Case 3:15-cv-00547-SMY-SCW Document 80-7 Filed 09/23/16 Page 2 of 3 Page ID #549 Case 3:15-cv-00547-SMY-SCW Document 80-7 Filed 09/23/16 Page 3 of 3 Page ID #550 EXHIBIT 8 Case 3:15-cv-00547-SMY-SCW Document 80-8 Filed 09/23/16 Page 1 of 2 Page ID #551 Case 3:15-cv-00547-SMY-SCW Document 80-8 Filed 09/23/16 Page 2 of 2 Page ID #552