1 IN THE UNITED STATES DISTRICT COURT FOR THE

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1 IN THE UNITED STATES DISTRICT COURT FOR THE Powered By Docstoc
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1              IN THE UNITED STATES DISTRICT COURT
             FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
2                       SOUTHERN DIVISION
                    CIVIL ACTION NO. 1:06CV457
3

4
       WILLIAM MULLINS, et al.,    )
5                                  )
                 Plaintiffs,       )
6                                  )
       vs.                         )
7                                  )
       STATE FARM FIRE AND         )
8      CASUALTY COMPANY, et al.,   )
                                   )
9                Defendants.       )
                                   )
10

11      VIDEOTAPED DEPOSITION OF ROBERT KIMBERLEY KOCHAN

12                    (Taken by Plaintiffs)

13                  Raleigh, North Carolina

14                 Thursday, November 30, 2006

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22

23                  Reported in Stenotype by
               V. Dario Stanziola, CSR, RPR, CRR
24     Transcript produced by computer-aided transcription

25
0002

1                         APPEARANCES

2      ON BEHALF OF THE PLAINTIFFS:

3               DEREK A. WYATT, Esquire
                Barrett Law Office, P.A.
4               404 Court Square North
                Lexington, Mississippi 39095
5               (662) 834-2376

6               MARY E. McALISTER, Esquire
                Nutt & McAlister, PLLC
7               605 Crescent Boulevard, Suite 39157
                Ridgeland, Mississippi 39157
8               (601) 898-7304

9               GARY YARBOROUGH, Esquire
                Hesse & Butterworth, PLLC
10              841 Highway 90
                Bay Saint Louis, Mississippi 39520
11              (228) 466-0020

12     ON BEHALF OF THE DEFENDANTS FORENSIC ANALYSIS AND
       ENGINEERING CORPORATION and WILLIAM C. FORBES:
13
                LARRY G. CANADA, Esquire
14              Galloway, Johnson, Tompkins, Burr & Smith
                One Shell Square
15              701 Poydras Street, Suite 4040
                New Orleans, Louisiana 70139
16              (504) 525-6802

17     ON BEHALF OF THE DEFENDANT
       STATE FARM FIRE AND CASUALTY COMPANY:
18
                SHERRIE L. MOORE, Esquire
19              Allen, Cobb, Hood & Atkinson, P.A.
                2512 25th Avenue
20              Gulfport, Mississippi 39501
                (228) 864-4852

21
       Also Present:
22
                JOHN GIRDLER, CLVS, Videographer
23
24

25
0003

1               VIDEOTAPED DEPOSITION OF ROBERT KIMBERLEY

2      KOCHAN, a witness called on behalf of the

3      Plaintiffs, before V. Dario Stanziola, CSR, RPR,

4      CRR, Notary Public, in and for the State of North

5      Carolina, held at the Hilton North Raleigh, Oakwood

6      Room, 3415 Wake Forest Road, Raleigh, North

7      Carolina, on Thursday, November 30, 2006,

8      commencing at 8:13 a.m.

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0004

1                     INDEX OF EXAMINATIONS

2
       By Mr. Wyatt                     PAGE      6
3

4
                       INDEX OF EXHIBITS
5
       NUMBER         EXHIBIT                     MARKED
6      Forensic 10: United States District         5
       Court Subpoena in a Civil Case dated
7      11/29/06
                                                  171
8      Forensic 12: A compilation of documents
       with the first being handwritten notes
9      dated 11/9/05
                                                  194
10     Forensic 13: A yellow lined paper with
       the handwritten word drat three times
11     with a signature
                                                  230
12     Forensic 14: Forensic Analysis &
       Engineering Report dated October 20,
13     2005 of the insured Thomas and Pamela
       McIntosh
14                                                237
       Forensic 15: Forensic Analysis &
15     Engineering Report dated February 10,
       2006 of the insured Alfred Pepperman
16                                                245
       Forensic 16: Forensic Analysis &
17     Engineering Report dated January 9, 2006
       of the insured Julie Nelson
18                                                252
       Forensic 17: Forensic Analysis &
19     Engineering Report dated November 30,
       2005 of the insured Robert Erichsen
20                                                255
       Forensic 18: Forensic Analysis &
21     Engineering Report dated October 6, 2005
       of the insured Archie and Eltie Flowers
22                                                256
       Forensic 19: Forensic Analysis &
23     Engineering Draft Report dated October
       13, 2005 of the insured Charles A. Smyly
24                                                58
       Forensic 20: Forensic Analysis &
25     Engineering Report dated November 21,
0005

1      (Forensic 10: United States District

2      Court Subpoena in a Civil Case dated

3      11/29/06 marked for identification, as of

4      this date.)

5      THE VIDEOGRAPHER:   We're going on the

6      record.   The time on the monitor is 8:13

7      a.m.   This is the video deposition of

8      Robert K. Kochan taken by the plaintiffs

9      in the matter of William Mullins, et al.,

10     plaintiffs versus State Farm Fire and

11     Casualty Company, et al., defendants

12     under the jurisdiction of the United

13     States District Court for the Southern

14     District of Mississippi, Southern

15     Division, Civil Action Number 1:06CV457.

16     This deposition is being held at the

17     Hilton North Raleigh, 3415 Wake Forest

18     Road, Raleigh, North Carolina on

19     Thursday, November 30th, 2006.

20     My name is John Girdler, I'm the video

21     specialist.   The court reporter is Dario

22     Stanziola.    We're from Huseby,

23     Incorporated.

24     Counsel will now state their appearances

25     for the record and the court reporter
0006

1               will swear in the witness.

2               MR. WYATT:    I am Derek Wyatt of the

3               Barrett Law Firm.    I represent the

4               plaintiffs Terry and William Mullins.

5               MS. McALISTER:    Meg McAlister for the

6               plaintiffs.

7               MR. YARBOROUGH:    Gary Yarborough for the

8               plaintiffs.

9               MS. MOORE:    Sherrie Moore for State Farm

10              Fire and Casualty Company.

11              MR. CANADA:    Larry Canada for FAEC.

12                     ROBERT KIMBERLEY KOCHAN,

13     having been duly sworn, was examined and testified

14     as follows:

15                          EXAMINATION

16     BY MR. WYATT:

17         Q.   Good morning, Mr. Kochan.

18         A.   Good morning.

19         Q.   My name is Derek Wyatt.    I'm with the

20     Barrett Law Firm in Lexington, Mississippi, and I

21     will be asking you some questions today pursuant to

22     this subpoena and Notice of Deposition that has

23     been served on you this morning.

24              After I finish asking questions, counsel

25     on the other side of the table, Forensic's counsel
0007

1      and also State Farm's counsel, will be afforded the

2      same opportunity.    And then if I have some

3      follow-up questions after that, I'll have some

4      more.

5                  Would you please state your full name for

6      the record.

7          A.      Robert Kimberley Kochan.

8          Q.      And what is your current residence

9      address?

10         A.      3743 Chesapeake Avenue, Hampton,

11     Virginia.

12         Q.      And how long have you lived at that

13     address?

14         A.      Approximately three years -- I'm sorry,

15     two, two-and-a-half years.

16         Q.      And before that where did you live?

17         A.      In Raleigh.

18         Q.      What was your address in Raleigh?

19         A.      7608 Wingfoot Drive.

20         Q.      And how long did you live there?

21         A.      Approximately eight years.

22         Q.      Are you married?

23         A.      Yes.

24         Q.      What is your wife's name?

25         A.      April.
0008

1          Q.     And where does she live?

2          A.     In my residence in Hampton, Virginia.

3          Q.     What is your current business address?

4          A.     3401 Atlantic Avenue, Suite 101 in

5      Raleigh.

6          Q.     North Carolina?

7          A.     Yes.

8          Q.     And how long has that been your business

9      address?

10         A.     Since about the first of February of this

11     year.

12         Q.     '06?

13         A.     Yes.

14         Q.     And what was the address before?

15         A.     5301 Capital Boulevard, Suite A, Raleigh,

16     North Carolina.

17         Q.     So you moved from Capital to Atlantic?

18         A.     Yes.

19         Q.     Are there any other offices of Forensic

20     currently?

21         A.     In North Carolina or at all?

22         Q.     At all.

23         A.     Yes, we have established opportunity to

24     do business in North -- in Virginia, Florida and

25     Mississippi.
0009

1          Q.   Do you have -- do you have offices

2      located in those locations?

3          A.   We've had physical offices.    Right now we

4      have a virtual office in Orlando and in Hampton

5      with a P.O. Box, and we have a P.O. Box in

6      Mississippi, Ocean Springs, Mississippi.

7          Q.   Mr. Kelly's residence?

8          A.   Yes, that's correct.

9          Q.   So you don't have any other offices

10     presently other than the one at 3401 Atlantic

11     Avenue, Raleigh?

12         A.   That's correct.

13              MR. WYATT:    All right.   Let me make some

14              recitals here into the record.    This

15              deposition is being taken pursuant to

16              notice and to a subpoena which we've

17              marked as Forensic 10, which was issued

18              pursuant to Rule 45 through the Eastern

19              District of North Carolina, United States

20              District Court and served upon

21              Mr. Kochan.

22         Q.   And Mr. Kochan, I'm going to hand you a

23     copy of what's been marked as Forensic 10 and ask

24     you, were you served with that subpoena?

25         A.   Effects -- I believe similarity of one,
0182

1      those are the only possibilities, aren't they?

2          A.    I either became aware of it by reviewing

3      the document and then reacted to it or Nellie

4      Williams or someone informed me of it.

5          Q.    Okay.

6          A.    Yeah.

7          Q.    And if you became aware of the problem

8      while you were peer reviewing it, would you affix

9      your signature to it anyway?

10         A.    Like I said, the -- that was an

11     electronic signature that was performed

12     automatically before the peer-review process was

13     completed.

14         Q.    Oh, so the signature went on every time

15     before you even peer reviewed?

16               MR. CANADA:   Asked and answered.

17         Q.    Is that correct?

18         A.    Not every time, but I'd say a majority of

19     the time because it was done in that cycle when the

20     invoices were performed, again, for -- on the

21     particular reports that I was scheduled to peer

22     review.

23         Q.    And that's very few?

24         A.    Yes, it is.

25         Q.    Overall it's very few?
0183

1          A.     That is correct.

2          Q.     All right.    Who were you talking with at

3      State Farm at this time?    Who were you

4      communicating with?

5                 MS. MOORE:    Object to form.

6          Q.     And the time period of course is

7      October 24th, 2005.

8          A.     Well, Mark -- as I said earlier, Mark

9      Wilcox was my primary contact person.      That's it.

10         Q.     You had not talked with Lecky King?

11         A.     As of this date?     Yes, I had.

12         Q.     You just testified a little while ago you

13     had, didn't you?

14         A.     Yeah.

15         Q.     In fact, there was a big blow-up with

16     Lecky King, so that's one of the people you'd been

17     talking with at State Farm, right?

18                MS. MOORE:    Object to form.

19                MR. CANADA:   Object to form.

20         A.     Well, I had spoken to her one time.

21         Q.     Okay.   All right.   You had spoken to her

22     and then you arranged to meet with her in person

23     already?   Before this e-mail was ever generated,

24     you had it in your mind that you were going to

25     drive to Biloxi, Mississippi and meet with Lecky
0184

1      King?

2          A.     Well, I had already in my schedule that

3      started back in September that I was going to be in

4      Biloxi shortly after this date and, therefore,

5      that's when I spoke with Lecky -- Lecky a few days

6      prior to this and told her that's when I would like

7      to meet with her.

8          Q.     Okay.   But let's see if we can get a

9      chronology here.    You had already had a phone --

10     all of this prior to October 24th, 2005, 6:32 p.m.,

11     as indicated on Forensic 9, A, you had had a

12     conversation with Lecky King where she had

13     communicated she was upset about Forensic's

14     reports?

15         A.     Yes, yes.

16         Q.     B, Brian Ford had severed his employment

17     and he was the principal engineer on site for

18     Forensic in Biloxi, Mississippi, his employment had

19     been severed?

20         A.     I'm not going to verify that because

21     we -- Jack Kelly came aboard simultaneously, so

22     there was no lapse in coverage, in professional

23     engineering coverage.

24         Q.     I thought you told me a minute ago

25     that -- that Mr. Ford became absent between your
0185

1      conversation with Lecky King by telephone and your

2      meeting --

3          A.      Well, you suggested that and I -- I'm not

4      sure, as I said.    The record would show that I said

5      I'm not positive.

6          Q.      I thought you affirmed that that

7      happened?

8          A.      I don't believe so.   And if I did, I --

9      I'm incorrect.

10         Q.      So maybe he was discharged after your

11     meeting with Lecky King?

12                 MR. CANADA:   Object --

13         A.      He was never discharged and I want to

14     make that very clear for the fifth time.     He was

15     asked to continue with our firm.      He chose to

16     resign and move away because he didn't want to be

17     in the -- a marketing/sales role.

18         Q.      Was there any other issue with Mr. Ford's

19     employment other than what Lecky King had

20     complained about?

21         A.      Absolutely not.   And I would have -- I

22     would have kept him on as an engineer.

23         Q.      So if he wasn't there and it wasn't

24     because of any other reason, then the only reason

25     we can pinpoint today is that Lecky King was upset
0186

1      with him being there?

2          A.     No, not at all.

3          Q.     Okay.   All right.

4          A.     He wasn't on State Farm's work any longer

5      because Lecky King was upset with the quality of

6      his work and she had -- she in her role had

7      absolute authority to say, I don't want that

8      engineer or that engineer on my job.    That's a

9      normal process in the engineering environment.

10         Q.     And she exercised that authority in this

11     situation?

12         A.     She did exercise it.   And I -- but I did

13     not let Brian go because of that.    Brian had an

14     opportunity to continue to make a very good wage

15     with me from that point forward.    He chose not to.

16         Q.     She told you, no more Brian Ford on State

17     Farm's jobs?

18         A.     Yes, she did.

19         Q.     And you said, we'll do that?

20         A.     First I said, we're going to look into it

21     and we're going to evaluate it and find out if he

22     made mistakes.     He did make mistakes, all right?

23     And he made improper technical judgments in my

24     opinion.   And that's why we reacted to it.   And in

25     my opinion, she was -- she had a valid complaint.
0187

1          Q.     Did you have those complaints before you

2      talked to Lecky King or afterwards?

3          A.     I didn't know about the problems until

4      after she brought it to our attention.

5          Q.     So you didn't have any problems with

6      Mr. Ford until you talked to Lecky King?

7          A.     I had no knowledge of his tendency to be

8      biased toward individuals who lost their homes.

9          Q.     In favor of coverage?

10         A.     Correct.

11                MS. MOORE:   Object to form.

12         Q.     And that's what Lecky King was

13     complaining about?

14         A.     That's not what she was complaining

15     about.    She was complaining about very specifically

16     and I made -- I made a point of saying, we are

17     going to do this in an unbiased fashion, unbiased

18     manner.   She made a very specific point of saying

19     the information that we supplied with our report

20     didn't technically justify the conclusions.    If we

21     had been able to, which we did in other matters,

22     show technically through photographs, through

23     documentation that -- that wind destroyed the

24     residence before the water was even involved, all

25     right, then she accepted that.     The record goes to
0188

1      show there's a number of reports that we turned in

2      that -- that were accepted by State Farm under

3      those premises.

4          Q.     So you took -- you conducted your

5      engineering practices according to what State Farm

6      told you to do?

7          A.     Absolutely not.

8          Q.     And in fact, you told your principal

9      engineer that he couldn't work on their files

10     anymore because they said, we don't want him

11     working on them?

12         A.     Well, that part is correct.

13         Q.     And then after they said that, you went

14     and discovered for the first time that suddenly you

15     thought Mr. Ford had made errors, but you'd

16     never --

17         A.     No.   No, the chronology is incorrect

18     there.

19         Q.     Excuse me, sir.   You'd never complained

20     to Mr. Ford before Lecky King talked to you about

21     any of Mr. Ford's activities?

22         A.     I wasn't aware of the problem.

23         Q.     And then after your -- between this

24     telephone conversation with Lecky King and your

25     meeting with Lecky King, and let me just make sure
0189

1      I'm clear about this, did you or not -- did

2      Mr. Ford sever his employment with Forensic in that

3      time period?

4          A.   I don't recall.   I'll have -- I don't

5      know.

6          Q.   Okay.

7          A.   I'd have to check his payroll record.

8          Q.   By the time you wrote this e-mail on

9      October 24th, 2005, you had had phone contact with

10     Lecky King concerning the fact she was upset with

11     Forensic's reports?

12         A.   Yes.

13         Q.   And in this e-mail, your last line

14     says -- well, would you please read that into the

15     record, sir, the last line of this e-mail.

16         A.   I suggest that the conclusion be altered

17     to indicate that it was a combination of both and

18     not primarily the wind.

19         Q.   So you specifically directed or advised,

20     I suppose, rather than -- not directed --

21         A.   I advised.

22         Q.   -- that the report be altered?

23         A.   That the report be adjusted to more

24     technically represent what the information -- the

25     evidence showed.