EFTA01130141.pdf

Page I Page 3 I UNITED STATES BANKRUPTCY COURT I APPEARANCES: 2 On behalf WED Bank. NA.: SOUTHER DISTRICT OF FLORIDA WILLIAM OL 'WEN" HUTCHINSON. Esquire 3 JOSEPH SHEERIN. Esquire 2 FORT LAUDERDALE DIVISION MCGUIREWOODS 3 4 201 North Tyro* Street Suite 4 IN RE: NO.: 09-34791-RBR 5 i1M10NorthCard= 28202 Charlotte. 5 ROTHSTEIN ROSENFELDT ADLER, P.A. 6 On behalf Herbert Stettin. Twine: JOHN H. GO:OVESE. Esquire 6 MICIIAll. A. FRIEDMAN. Esquire 7 GENOVESE .10BLOVE & BATTISTA. P.A. 8 WO Flouter Second Street 8 VIDEOTAPED 44th Floor 9 DEPOSITION 9 Miami. Florida 33131 10 OF 10 DAVID-and.GAY. Equirc 11 JOHN JACK SCAROLA BERGER SINGIRMAN II 3 S50 East Las Olas Boulevard 12 uite MCO 13 12 Fon Lamierdale. Florida 33301 13 On behalf of Robert Fun. Enlace: 14 JASON S. RIGOLI. Estate 15 350 East Las Olas Boulevard 14 FURR & COHEN. P.A. One Boca Place. Susie 337W Fort Lauderdale, Florida 15 2255 Glades Road Boca Raton. Florida 33431 16 July 2, 2013 16 Scheduled for 10:00 a.m. On behalf of the Plaintiffs: 17 ADAM MOSKOWITZ Esquire 17 Commencing at 10:07 a.m. to 5:23 p.m. KOZYAK IRONS & THROCKMORTON. P.A. 18 IS 1525 Ponce de Leon Boakvard Ninth floor 19 19 Miami. Florida 33131.2335 20 20 On behalf oft& Plaintiffs: William Scherer. Esquire 21 21 CONRAD & SCHERER. LLP 22 633 South Federal Ilighnuy 22 Eashth Flom 23 Fon Lasakidale. Florida 33301 24 23 25 24 25 Page 2 Page 4 1 UNITED STATES BANKRUPTCY COURT 1 CONT. APPEARANCES: SOUTHERN DISTRICT OF FLORIDA 2 On behalf of Unsecured Creditors Committee: 2 FORT LAUDERDALE DIVISION MICHAEL J. GOLDBERG. Esquire 3 3 350 East Las Olas Boulevard 4 IN RE: CHAPTER 7 Suite 1600 5 4 Fort Lauderdale. Florida 33301-2229 BANYON 1030-32. LLC CASE NOS: 10-36691-RBR 5 On behalf of Morse Operations and 6 BANYON INCOME FUND. L.P. I I-40929-RBR The Estate of Ed Morse: 7 Debtors. Jointly Administered Under 6 JOHN M. MULLIN. Esquire Case No. 10-33691-RBR TRIPP SCOTT 8 7 110 Southeast Sixth Street / Fifteenth Floor 9 8 Fort Lauderdale. Florida 33301 10 9 11 10 ALSO PRESENT: 12 VIDEOTAPED 11 Patricia Diaz. FPR. RPR 13 DEPOSITION 12 Dean J. Chimerakis. Videographer 14 OF Custom Video Services. Inc. 15 JOHN JACK SCAROLA 13 16 14 17 15 - - - 18 16 19 350 East Las Olas Boulevard 17 Fort Lauderdale. Florida 18 20 July 2. 2013 19 Scheduled for 10:00 a.m. 20 21 Commencing at 10:07 a.m. to 5:23 p.m. 21 22 22 23 23 24 24 25 25 I (Pages I to 4) OUELLETTE & MA LDIN UHRT REPORTERS, INC. EFTA01130141  Page 5 Page 7 I INDEX I behalf of the Estate of Ed Morse and Morse 2 WITNESS: PAGE 3 JOHN JACK SCAROLA 2 Operations, Inc. 0 DIRECT EXAMINATION BY MR. HUTCHINSON 7 3 MR. GOLDBERG: Mike Goldberg on behalf of the CROSS-EXAMINATION BY MR_ GENOVESE 173 5 CROSS-EXAMINATION BY MR_ MOSKOWITZ 216 4 Creditors Committee. 6 5 MR. GAY: David Gay with Berger Singerman 7 --- 6 counsel on behalf of Herbert Stettin. 8 EXHIBITS 9 - - - 7 Thereupon, 10 NO. DESCRIPTION PAGE 8 JOHN SCAROLA 11 Exhibit No. 1 Subpoena 7 12 Exhibit No. 2 Subpoena for Christian 9 9 was called as a witness and, having been duly sworn, was Searcy 10 examined and testified as follows: 13 Exhibit No. 3 Transcript of May 17_ 2013 48 11 THE WITNESS: I do. 14 Hearing 12 DIRECT EXAMINATION 15 Exhibit No. 4 Plaintiffs First Request 68 for Production of Documents 13 BY MR HUTCHINSON: 16 to TD Bank 14 Q. Good morning, Mr. Scarola. We met before the I? Exhibit No. 5 TD Bank Victims Notice of 79 15 deposition. Would you please state your name for the Filing Expert Disclosures HI 16 record? Exhibit No. 6 Time Summary 81 17 A. Good morning. My name is John Scarola. I am 19 Exhibit No. 7 Conspiracy Chart III 18 also most commonly known as Jack. 20 19 Q. Mr. Scarola, I will show you what I marked as Exhibit No. 8 Statute 768.72 124 21 20 Exhibit 1. Do you recognize Exhibit 1? Exhibit No. 9 Statute 768.73 148 21 (Exhibit No. I, Subpoena, was marked for 22 22 identification.) Exhibit No. 10 Handwritten Notes 163 23 23 A. It appears to be a copy of the subpoena for Exhibit No. II Handwritten Notes 168 24 this deposition that was served upon my office and 24 25 25 accepted at my direction. Page 6 Page 8 I THE VIDEOGRAPHER: Today's date is July 2nd. I BY MR. HUTCHINSON: 2 2013. The time is approximately 10:10 a.m. Eastern 2 Q. And are you appearing here today pursuant to 3 Standard Time. We are here to videotape the 3 this subpoena? 4 deposition of John Jack Scarola in regard to 4 A. I am. 5 Rothstein, Rosenfeldt, Adler, PA, Case 09.34791 5 Q. And this subpoena includes a document request, 6 BKCRVR. 6 does it not? 7 The court reporter is Patty Diaz with 7 A. It does. 8 Ouellette and Mauldin Court Reporting. My name is 8 Q. And have you produced all documents that are 9 Dean Chimerakis, videographer, with Custom Video 9 responsive to the request included therein? 10 Services of Miami. 10 A. I believe I have. 11 Will counsel please state your appearance for 11 Q. Does that include some documents that you have 12 the record? 12 brought with you here today? 13 MR. HUTCHINSON: Wayne Hutchinson with 13 A. That is correct. 14 McGuireWoods on behalf of TD Bank, N.A., and with 14 Q. Based on what was previously produced and what 15 me is Joe Sheerin. 15 you brought here today, you believe that all documents 16 MR. GENOVESE: John Genovese, Genovese, 16 responsive to these requests have now been provided. 17 Joblove and Battista on behalf of Herb Stettin. 17 Correct? 18 Along with me is my colleague, Michael Friedman. 18 A. I don't have personal knowledge of the 19 MR. RIGOLI: Jason Rigoli, Furr & Cohen on 19 production that was not made by me. I am told that you 20 behalf of Robert Fun, Chapter 7 Trustee for Banyon 20 have already received duplicate copies of most of the 21 1030-32 and Banyon Income Fund. 21 materials that I brought today, but I have brought with ?2 MR. MOSKOWITZ: Adam Moskowitz, Bill Scherer 22 me all of those materials in my possession that are 23 and Javi Lopez on behalf of the plaintiffs in the 23 responsive to the subpoena. ?el. case. 24 Q. And you are fine with us looking through those 25 MR. MULLIN: John Mullin from Tripp, Scott on 25 materials to confirm that we have them and if not, 2 (Pages 5 to 8) OUELLETTE & MA LD1NCOURT REPORTERS, INC. EFTA01130142  Page 9 Page II 1 making any copies that we need to make so that we have I have been asked to express opinions with regard to the 2 them for our records? 2 punitive damage value of claims against TD Bank and I 3 A. Yes. I know that there are documents that are 3 present myself as having sufficient expertise in that 4 included in the group of documents that I brought this 4 area to express those opinions. 5 morning that were not produced to you because they are 5 Q. So it's your understanding that your opinions 6 my personal notes with regard to my review of the other 6 in this matter are limited to the value of potential 7 materials. 7 punitive damages claims against TD. Is that correct? 8 Q. But you are not aware of any additional 8 A. That certainly is the primary focus of what I 9 materials that either have not been provided or are not 9 have been asked to do, and while I may have formed som 10 with you here today? 10 tangential opinions that relate to that primary area, A. I am not. 11 that is the focus of what I have done. 12 Q. Let me show you what I marked -- is marked as 12 Q. What qualifies you as an expert on punitive 13 Exhibit 2. 13 damages and the values of punitive damages claims? 14 (Exhibit No. 2, Subpoena for Christian Searcy. 14 A. The total of 40 years experience that I have I5 was marked for identification.) 15 had litigating both criminal and civil cases, including 16 A. Yes, sir. 16 many punitive damages claims. 17 BY MR. HUTCHINSON: 17 Q. At what point during that 40-year career did I8 Q. Do you recognize Exhibit 2, sir? 18 you become an expert on valuating punitive damages 19 A. I do. 19 claims? 20 Q. What is Exhibit 2? 20 A. I cannot tell you the point in time at which 21 A. Exhibit 2 is a copy of a subpoena that was 21 someone would have independently recognized my 22 accepted by my office on behalf of Christian Searcy and 22 expertise. It has been an evolving process, so that's a 23 I have seen a copy of this subpoena as well. 23 question that I can't answer for you, except to tell you 24 Q. And am I correct that this subpoena also 24 that it is my personal assessment that I am certainly 25 includes certain document requests? 25 there now. Page to Page 12 I A. It does. Q. Are there any specific factors that you 2 Q. And we have not received a separate response believe makes you qualified to be an expert on the 3 to this subpoena from your law firm. Is your document 3 valuation of punitive damages claims other than your 4 production individually supposed to respond to this 4 general experience? 5 subpoena as well? 5 A. Yes. It is an area of the law that I have 6 A. his. 6 studied. It is an area of the law that I have focused 7 Q. So as we sit hem today, you have no knowledge 7 study upon. That is, I am sure that over the course of 8 of additional documents responsive to the request, 8 particularly the last 35 years I have taken CLE courses 9 including Exhibit 2, that are responsive therein that 9 that have dealt with the topic of punitive damages as 10 have not either been provided to us previously or are 10 well as having taught multiple courses dealing with the 11 not in the materials that you brought here today? I topic of punitive damages. 12 A. That is correct. Certainly, it's possible 12 So, it is as a consequence of practical 13 that I may have overlooked something, but I don't think 13 experience, formal education and self-study that I have 14 so. 14 accumulated the degree of expertise that I have in this IS Q. Mr. Scarola, in what fields are you an expert? 15 area. 16 A. I am a trial lawyer who has been practicing in 16 Q. Let's talk about the CLE courses that you have 17 the area of litigation since 1972. I am Board-certified 17 taught that deal with the valuation of punitive damages 18 in personal injury and in business litigation as well 18 claims. Can you please tell me about those courses, 19 and I believe that both certifications have been in 19 their titles and when they were offered? 20 place since they were offered by the Florida Bar. 20 A. I'm sorry, but I cannot give you the course 21 Q. And if you were going to list the fields in 21 titles nor can I tell you the specific dates on which 22 which you believe that you are an expert, what fields -- 22 the courses were offered. 23 how would you describe those fields and what would they 23 What I can tell you is that I have lectured on 24 be? 24 both the state and local level on the topic of punitive 25 A. Well, for purposes of the deposition today. I 25 damages and have also been invited to give lectures on 3 (Pages 9 to 12) OUELLETTE & MA LDINCOURT REPORTERS, INC. EFTA01130143  Page 13 Page 15 1 punitive damages in front of at least one other state 1 wherein you lectured on punitive damages? 2 Bar Association. 2 A. Palm Beach County Bar Association, Palm Beach 3 Q. What state Bar Association was that that you 3 County Justice Association, Florida Justice Association. 4 are referring to? 4 Q. And over how many years did those lectures 5 A. Ohio. 5 occur? 6 Q. Were they the sponsor of the continuing 6 A. Certainly within the past 20 years, and I 7 education class? 7 don't know that I can accurately narrow it down beyond 8 A. They were. 8 that. It's a topic that I have been dealing with 9 Q. And where was that lecture? 9 significantly over at least the last 20 years. 10 A. It actually occurred when that Bar Association 10 Q. Have you lectured on the punitive damages 11 met in Palm Beach County. 11 aspect of the Florida Tort Reform Acts that were 12 Q. And when was that? 12 implemented in the late 1990s? 13 A. I can't give you the date. 13 A. I have. 14 Q. Was it in the last five years? 14 Q. What would have been your topics on -- what's 15 A. I'm not sure. 15 been the subject matters of those lectures on those 16 Q. What's your best estimate of when that would 16 topics? 17 have been? 17 A. The implications from both the legal and 18 A. Approximately, five years ago. 18 practical standpoint of the legislative changes. 19 Q. And did you prepare materials for that CLE 19 Q. And what do you recall about those 20 presentation? 20 implications? 21 A. I don't know whether I prepared materials 21 A. I recall that the Florida legislature has, 22 specifically for that CLE presentation or whether I 22 from time to time, been imposing various restrictions on 23 relied upon materials previously prepared and having 23 the common law ability to recover punitive damages. 24 lectured on the topic prior to that lecture. 24 Q. In your opinion, does the Florida Legislature 25 Q. Would you still have the materials that you 25 have the right to do that? Page 14 Page 16 1 would have used in these past lectures? 1 A. It is my personal opinion that the Florida 2 A. Probably some of them. 2 Legislature has a limited right to deal with imposing 3 Q. Is the information contained in those 3 restrictions on the ability to recover punitive damages, 4 materials anything that you relied upon in forming the 4 that there are constitutional limitations on how those 5 opinions in this case? 5 restrictions may be imposed. 6 A. The information contained within those 6 Q. What constitutional limitations are you 7 materials include principles that I relied upon in 7 referring to? 8 formulating my opinions in this case, I think would be a 8 A. The due process and equal protection clauses 9 more accurate way to state the relationship between 9 of both the United States Constitution and the Florida 10 those materials and my opinion. 10 Constitution. 11 Q. And to the extent that you can find any of 11 Q. Are you claiming -- is it your -- are you 12 those --- 12 offering an opinion in this matter that there is a 13 A. You've got them. 13 property right with respect to a punitive damages claim? 14 Q. Okay. Are those materials with you here 14 A. No. I am not offering that opinion. I am 15 today? 15 assuming for purposes of the opinions that I will be 16 A. They are. If they exist, they are in that 16 expressing today that the current legislative 17 box. 17 limitations that have been imposed upon the ability to 18 Q. Thank you very much. 18 recover punitive damages pass constitutional muster. 19 A. You are welcome. 19 Q. They do pass constitutional muster? 20 Q. Other than the lectures at the Ohio State Bar 20 A. I have assumed that for purposes of the 21 Association, were your other CLE lectures all 21 opinions that I am expressing today. 22 sponsored -- were the classes all sponsored by the 22 Q. So, you are not offering an opinion in this 23 Florida Bar Association? 23 matter that the current statutes limiting punitive 24 A. No. 24 damage awards are somehow unconstitutional or not 25 Q. Who were the other CLE classes sponsored by 25 applicable to this matter? 4 (Pages 13 to 16) OUELLETTE & MA LDINCOURT REPORTERS, INC. EFTA01130144  Page 17 Page 19 I A. I am not offering that opinion today. 1 Q. Is that -- is it your opinion that it's 2 Q. And you are not planning on offering that 2 outside the statutory limitations because they are not 3 opinion at the confirmation hearing? 3 product liability claims? 4 A. I don't plan on offering that opinion at the 4 A. It's my opinion that they are outside the 5 confirmation hearing, no. 5 statutory limitations for multiple reasons; one, because 6 Q. Let's go back. You talked about that you've 6 they are not within those provisions of the statute that 7 lectured on the practical implications of the new -- of 7 impose limitations, but secondly, because the nature of 8 the punitive damages tort reform that was implemented in 8 the misconduct is such that I believe that that 9 the late 1990s. What is your understanding of the 9 misconduct takes the claims outside of the statutory 10 practical implications of those reforms? 10 limitations. 11 A. That really is a very broad question and I 11 Q. And we will certainly get into that in more 12 would prefer that it be more focussed before I attempt 12 detail, but generally, are those the two reasons why you 13 to answer it. 13 believe that the conduct at issue in the underlying 14 In what regard? 14 claims in this matter are outside the punitive damages 15 Q. Well, are there limits on the -- the amount of 15 limitations? 16 punitive damages? Is it your understanding there are 16 A. Generally, yes. When we are talking about 17 limits on the amount of punitive damages that can be 17 punitive damages limitations right now, we are simply 18 recovered as a result of such reforms? 18 focusing on statutory limitations. 19 A. Yes, under some circumstances. 19 Q. Yes, sir. 20 Q. And what are those circumstances? 20 Did you have any involvement with the punitive 21 A. Those that are specifically described in the 21 damages tort reform that was implemented in the late 22 statute. 22 1990s? 23 Q. Do you recall any of those circumstances 23 A. I am not sure what it is you are asking me. 24 without referencing the statute? 24 If you are asking whether I had any involvement in 25 A. I think I can recall some of them without 25 formulating the law, the answer to that question is I Page 18 Page 20 I referencing the statute. Certainly, if you want the I did not. 2 most accurate answer I am able to give you, I've got a 2 Q. Who did? To your knowledge, who did formulate 3 copy of the statute in the materials that have been 3 the law? 4 provided, and it would be easier to have it in front of 4 A. The Florida Legislature. 5 me. But if what you would like to do is test my memory, 5 Q. Do you have any idea who wrote the law? 6 you know, I will play that game with you. 6 A. I don't know the names of any of the 7 Q. Well, we are not playing games. 7 draftsmen, and I would be surprised if the end result 8 A. Okay. 8 were not the product of input from multiple sources. 9 Q. But what do you recall about the statutory 9 Q. Do you have any personal knowledge of that? 10 limitations? 10 A. I don't, no, at least none that I recall. 11 A. I recall that there are limitations that would 11 There may have been some point in time when I had 12 impose a three times compensatory damage limit under 12 occasion to attempt to review the legislative history, 13 some circumstances, limitations that impose a four time 13 but I don't remember that. 14 compensatory damage limitation under some circumstances. 14 Q. Would the draftsmen of the punitive damages 15 There is expressed statutory language that indicates 15 statute be the best resource in terms of trying to 16 that there is no statutory limitation under other 16 determine the intent behind the statutes? 17 circumstances, and I recall that there is specific 17 A. Not necessarily, no. 18 language in the statute that indicates that the statute 18 Q. Who would be? 19 is primarily applicable to products liability claims. 19 A. The Florida Supreme Court ultimately. 20 Q. Are you offering an opinion in this matter 20 Q. And the Supreme Court looks to legislative 21 that the statutes are somehow not applicable to the 21 history at times to determine the intent of the statute; 22 claims at issue? 22 does it not? 23 A. It is my opinion that the circumstances of the 23 A. If it is necessary to go beyond the plain 24 punitive damage claims against TD Bank take those damage 24 meaning of the language of the statute, that is a 25 claims outside the statutory limitations. 25 consideration that the Court might view. I don't -- I 5 (Pages 17 to 20) OUELLETTE & MA LDINCOURT REPORTERS, INC. EFTA01130145  Page 21 Page 23 1 don't know that that would be necessary under the 1 over the years some fairly extensive research materials 2 circumstances of this statute and it certainly does not 2 with regard to punitive damages. They certainly don't 3 appear to have been necessary up to this point in time. 3 include everything that I have reviewed, but it has been 4 Q. But you are not going to offer any opinions in 4 my standard operating procedure as a trial lawyer to 5 this matter on the nature and the intent of the statute 5 preserve copies of materials that I think may be of some 6 beyond the statutory language. Correct? 6 significance with regard to a matter that I am currently 7 A. That is correct. 7 involved in or that I might reasonably anticipate would 8 Q. And you have no personal knowledge of the 8 become relevant to future matters, and I have kept those 9 nature and intent of the enactment of the statute. 9 research files and produced them for you today. 10 Correct? 10 I selected from those files the punitive 11 A. I do not have any personal knowledge regarding 11 damage files that I thought might be most relevant to 12 the drafting process nor the deliberative process of the 12 the inquiry that is being conducted. 13 Legislature, nor do I think that either of those matters 13 Q. Thank you. So you keep a punitive damage -- 14 is relevant. 14 A. I am not sure once you see them you are going 15 Q. Do you know what groups were involved in the 15 to want to say thank you, but I have them here. 16 lobbying effort for the tort reform effort? 16 Q. We appreciate it. How many times --- 17 A. I can make reasoned assumptions in that 17 A. Nor do I think you are going to appreciate it 18 regard, but I don't have any direct knowledge. 18 when you get a chance to look at them, but they are 19 Q. In addition to the CLE courses you have taken 19 here. 20 and taught on punitive damages, you also said that you 20 Q. Thank you. 21 have done a good bit of studies conducted for punitive 21 How many times have you testified as an expert 22 damage purposes. Is that correct, or you have 22 on punitive damages? 23 researched punitive damages? 23 A. I don't have a recollection of ever having 24 A. I have, yes. 24 served as a punitive damage expert before today. 25 Q. Can you please describe those research efforts 25 Q. Have you ever been --- Page 22 Page 24 1 over the years? 1 A. I am a virgin. 2 A. I have read case law. I have read treatises. 2 Q. Have you ever -- I will move on. 3 I have read articles in professional journals. That's 3 Have you ever been asked to serve as a 4 what comes to mind immediately. 4 punitive damages expert before today? 5 Q. Is there any treatise out there that you have 5 A. I have not, no. 6 read that you believe to be the most authoritative 6 Q. Have you ever heard of a punitive damages 7 treatise on the status of damages in the State of 7 expert before today? 8 Florida? 8 A. Certainly not in the context of someone 9 A. There is no treatise that I would accept as 9 testifying about the value of a punitive damage claim 10 generally authoritative on all issues with regard to 10 but there are -- there are certainly a lot of folks out 11 punitive damages. 11 there who have training and experience that formulate 12 Q. Is there any treatises that you would accept 12 opinions with regard to the punitive damage value of 13 as authoritative on some of the issues with respect to 13 cases in the ordinary course of their litigation 14 punitive damages? 14 practice. 15 A. Well, that would depend upon a particular 15 Q. But you have never heard -- how long, sir, 16 issue and my review of the way in which the treatise 16 have you been litigating cases? 17 treats that issue. So, I can't answer that broadly. 17 A. Since 1972. 18 Q. Are there any issues in this matter that you 18 Q. Since 1972, have you ever heard of another 19 intend to opine upon that you believe a certain treatise 19 person offering an opinion as to the value of a punitive 20 would be authoritative? 20 damages claim? 21 A. I have not expressly reviewed any treatise for 21 A. Many times, yes. 22 purposes of formulating my opinions in this matter and 22 Q. And -- 23 ascertaining whether those opinions conform with that 23 A. As a routine matter. 24 treatise so I can't answer that question. 24 Q. Testifying in court? 25 What I will tell you is that I have assembled 25 A. No, sir. No. That wasn't the question. 6 (Pages 21 to 24) OUELLETTE & MA LDINCOURT REPORTERS, INC. EFTA01130146  Page :' Page 27 1 That's not how I understood your question. I punitive damage claims that you or your client was 2 Q. I'm sorry. Then let me repeat or rephrase my 2 asserting? 3 question. 3 A. Only the circumstances that I just described, 4 Since 1972, have you ever heard or seen 4 and -- well, that's the best answer I can give at this 5 someone testify as an expert as to the value of a 5 time. 6 punitive damages claim? 6 Q. Other than the research and studies that you 7 A. You know, as you are asking that question, I 7 have previously described, have you performed any other 8 am thinking back to one occasion where I believe that, 8 type of research during your career that supports your 9 in fact, did occur in a case that I personally 9 purported expertise? 10 litigated. 10 A. The process of evaluating punitive damages 11 Q. Can you tell me about that case and the II claims is a process that goes on on a very frequent 12 circumstances of that testimony? 12 basis in the course of my practice. So, to that extent, 13 A. Yes. The case was a claim against Bankers 13 the answer to your question is certainly yes. 14 Multiple Line Insurance Company. The full style of the 14 Q. So you are saying you evaluate the punitive IS case was Farish versus Bankers Multiple Line. It was a 15 claims of your own cases? 16 tortious interference claim against John D. MacArthur 16 A. And sometimes -- well, often the cases of 17 and Bankers Multiple, which was a liability insurer that 17 others in my law firm and occasionally the cases of 18 was owned by MacArthur. 18 lawyers outside my law firm who seek my opinion or my 19 Joseph Parish was a trial lawyer who had been 19 firm's opinions with regard to the value of their cases. 20 hired by the widow of a young man who was walking down 20 Q. So, other than evaluating the claims that you 21 the street when a truck came by carrying concrete 21 just described, your own cases, others in the firm, 22 culverts. The truckload was not properly secured. A 22 other lawyers and so forth, have you done any other 23 culvert fell off the truck and crushed him as he was 23 research during your career that supports your purported 24 walking down the street. The truck was owned by a 24 expertise? 25 MacArthur Company and insured by Bankers Multiple Line 25 A. The study that I have described to you Page 26 Page 28 I Insurance Company. 1 earlier. 2 The widow was an employee of John D. MacArthur 2 Q. Other than what we have talked about here 3 at a hotel that MacArthur also owned called The 3 today? 4 Colonnades, and when MacArthur found out about the 4 A. I can't think of anything else that would 5 widow's claim against his company and his insurance 5 directly be relevant. Something else may come to mind. 6 company, he befriended the widow and convinced her to 6 If it does, I will let you know. That's All can think 7 terminate the services of MacArthur and to retain the 7 of right now. 8 services of a young woman who had virtually no 8 Q. Okay. You referred to the process of 9 litigation experience whatsoever who proceeded then to 9 evaluating a punitive damages claim. 10 settle the widow's claim very cheaply. 10 A. Yes, sir. 11 I represented Mr. Farish in a tortious II Q. Is that a process that you developed or was 12 interference claim, and one of the issues was the value 12 that developed by some other punitive damages expert? 13 of the underlying case. And there was expert witness 13 A. It is a process that has developed over the 14 testimony that was given in that case about the value of 14 course of my personal practice. That is, I haven't IS the claim absent the tortious interference. 15 taken somebody else's evaluative process and adopted 16 I am blanking on the name of the trial lawyer 16 that as my own. 17 or trial lawyers who gave that testimony. That was 17 Q. And is your process an accepted process in the 18 probably 25 years ago. I8 legal industry for evaluating the value of punitive 19 Q. So you did not present such testimony? 19 damages claims? 20 A. I'm surprised myself by remembering how much I 20 A. I think the answer to that question is yes. 21 remembered about that. 21 Q. Okay. And how do you know that it's -- would 22 Q. You did not present such testimony? 22 you say it's widely accepted in the legal industry as a 23 A. I did not present the testimony, no. 23 process for evaluating the value of punitive damages 24 Q. In all your years of trying cases, have you 24 claims? 25 ever retained an expert to opine on the value of 25 A. Yes. 7 (Pages 25 to 28) OUELLETTE & MA LDINCOURT REPORTERS, INC. EFTA01130147  Page 29 1 Page 31 1 Q. Has your method been published? 1 punitive damages claims in the underlying cases? 2 A. It has been. 2 A. Except for my own materials, which obviously 3 Q. Where has this been published? 3 include my name, I am not aware and would be very 4 A. It has been published in court opinions of 4 surprised to find any case or treatise or other 5 which I am aware. It has been published in legal 5 publication that attributes the identification of 6 treatises of which I am aware, and it has been published 6 aggravating and mitigating circumstances to Jack 7 in the CLE materials that I, myself, have written in 7 Scarola. This is not something that I authored, except 8 connection with lectures in this area that I have given. 8 to the extent that it's incorporated in CLE outlines. 9 Q. Okay. So, there is a court opinion out there 9 It is a recognition of the appropriateness of 10 that discusses your internal process for evaluating the 10 specifically identified factors in both cases and 11 value of punitive damages claims? 11 treatises to asses the appropriate amount of punitive 12 A. There is a court opinion out there that 12 damages in order to serve the dual function of 13 addresses the issue of how punitive damages should be 13 punishment and deterrence. 14 evaluated, yes. 14 Q. Punishment and deterrence, are those the IS Q. And let's make sure we are talking, using the 15 purposes of punitive damages under Florida law? 16 same words here. How a punitive damages claim should 16 A. Yes, sir. 17 evaluated versus how you -- how one values a purported 17 Q. Are punitive damages under Florida law meant 18 punitive damages claim. Are we talking about the same 18 to compensate a plaintiff? 19 thing? 19 A. They are not, except to a limited extent that 20 A. That's a distinction that I don't understand. 20 is recognized in the case law, and that is that there is 21 Maybe I can be helpful to you here so we don't spend a 21 a recognition in the case law that the plaintiff who 22 lot of time mis-communicating. 22 undertakes the prosecution of a punitive damage claim is 23 Q. That would be great. 23 serving a function in effect as a public prosecutor to 24 A. There are authorities that identify 24 preserve the integrity of the judicial system and to ?5 aggravating and mitigating circumstances that are 25 preserve appropriate standards within, in this context, Page 30 Page 32 I appropriately taken into consideration in assessing the 1 the business community. So, to motivate individuals to 2 amount of punitive damages necessary to serve the dual 2 undertake the difficult task of prosecuting a punitive 3 purpose of punitive damages recognized in the State of 3 damage claim, one of the factors that is taken into 4 Florida, punishment and deterrence. The case that most 4 consideration are the costs involved in prosecuting that 5 specifically addresses those factors is the 5 claim. 6 Johns-Manville case, which is included in the materials 6 Q. And what case --- 7 that have been provided to you. 7 A. So punitive damages help to compensate the 8 Q. Just so we are clear, when we are talking 8 plaintiff for undertaking that broader societal purpose. 9 about the publication of your process to evaluate 9 Q. To recoup the costs incurred in protecting 10 punitive damages, do these cases say this is how Jack 10 society's or the state's interest in pursuing punitive 11 Scarola does it and we think that that's the proper way 11 damages? 12 to do it, or do these cases discuss different factors 12 A. Yes, sir. 13 that a court should consider in evaluating punitive 13 Q. And what case do you believe best describes 14 damages and you have adopted parts of that in your 14 that function? 15 process? 15 A. Well, I know it's described in more than one 16 A. There is no published opinion that attributes 16 case, but the one that comes to mind immediately is 17 this process to me. There are published opinions that 17 Johns-Manville. 18 i