Docstoc

LiveNote SR

Document Sample
LiveNote SR Powered By Docstoc
					                            4/21/2008 Trial Transcript                                          4/21/2008 Trial Transcript


                                Volume 1                        1                 PROCEEDINGS
                                Pages 1 - 242                   2    April 21, 2008                               9:25 a.m.
                UNITED STATES DISTRICT COURT
               NORTHERN DISTRICT OF CALIFORNIA                  3
              BEFORE THE HONORABLE SAMUEL CONTI                 4          THE CLERK: Calling Civil 07-3758, Veterans for
     VETERANS FOR COMMON SENSE, et al, )
                             )                                  5    Common Sense, et al, versus James V. Peake, M.D, et al.
             Plaintiffs,        )                               6          Counsel, please state your appearance for the record.
                             )                                  7          MR. ERSPAMER: Good morning, your Honor. Gordon
      VS.                      ) NO. C 07-3758 SC
                             )                                  8    Erspamer from Morrison and Foerster for the plaintiffs.
     JAMES B. PEAKE, M.D., et al,           )                   9          MR. WOLINSKY: Good morning, your Honor. Sid
                             ) San Francisco, California
             Defendants.          ) Monday                      10   Wolinsky of Disability Rights Advocates for plaintiffs.
                             ) April 21, 2008                   11         MS. MOSER: Good morning, your Honor. Heather Moser
     ___________________________________) 9:00 a.m.             12   of Morrison and Foerster for the plaintiffs.
             TRANSCRIPT OF COURT TRIAL PROCEEDINGS
     APPEARANCES:                                               13         MS. SPRENKEL: Good morning, your Honor. Stacey
     For Plaintiffs:      MORRISON AND FOERSTER LLP             14   Sprenkel of Morrison and Foerster for plaintiffs.
                     101 Ygnacio Valley Road
                     Suite 450                                  15         MR. GONZÀLEZ: Good morning, your Honor. Arturo
                     P.O. Box 8130                              16   Gonzales, Morrison and Foerster.
                     Walnut Creek, California 94596             17         MR. HASSINAN: Good morning, your Honor. Ryan
                 BY: GORDON P. ERSPAMER, ESQ.
                     MORRISON & FOERSTER, LLP                   18   Hassanein of Morrison and Foerster.
                     425 Market Street                          19         MR. LEPLEY: Good morning, yourself. Richard Lepley
                     San Francisco, California 94105
                 BY: STACEY M. SPRENKEL, ESQ.                   20   on behalf of defendants.
                     ARTURO J. GONZALEZ, ESQ.                   21         MR. WILTSIE: Good morning, your Honor. Ronald
                     HEATHER A. MOSER, ESQ.                     22   Wiltsie for the defendants.
                     RYAN G. HASSANEIN, ESQ.
           (APPEARANCES CONTINUED ON FOLLOWING PAGE)            23         MR. SCHWARTZ: Good morning, your Honor. James
     Reported by: Belle Ball, CSR 8785, CRR, RMR                24   Schwartz on behalf of defendants.
            Debra L. Pas, CSR 11916, CSR, RPR
                     Official Reporters - US District Court     25         MR. BENSING: Good morning, your Honor. Daniel


                                                                                                                                       3




                            4/21/2008 Trial Transcript                                          4/21/2008 Trial Transcript
                                           2
1    APPEARANCES: (CONTINUED)
                                                                1    Bensing for the defendants.
2
                  Disability Rights Advocates                   2          MS. FREENY: Good morning, your Honor. Kyle Freeny
3                 2001 Center Street
                  Third Floor                                   3    for defendants.
4                 Berkeley, California 94704                    4          MR. McNAMEE: Good morning, your Honor. Chris
                BY: SIDNEY M. WOLINSKY, ESQ.
5                                                               5    McNamee for defendants.
6    For Defendants:      United States Department of Justice   6          MR. BOCCHICCHIO: Good morning, your Honor. Al
                   Civil Division, Federal Programs Branch
7                  Post Office Box 883                          7    Bocchicchio, VA representative.
                   Washington, D.C. 20044                       8          MS. WILL: Good morning, your Honor. Suzanne Will
8              BY: DANIEL BENSING, ESQ.
                   JAMES SCHWARTZ, ESQ.                         9    for the defendants.
9                  KYLE R. FREENY, ESQ.                         10         THE COURT: First thing. There is some question
10
                  UNITED STATES DEPARTMENT OF JUSTICE           11   about the laptops in and out of the courtroom. My rule is that
11                Civil Division                                12   you can have laptops in the courtroom, but no broadcasting of
                  20 Massachusetts Avenue, N.W.
12                Washington, D.C. 20530                        13   the laptop information while the Court is going on. If I find
                BY: RONALD J. WILTSIE, ESQ.                     14   that that has happened, the attorney will be subject to
13                RICHARD LEPLEY, ESQ.
14                                                              15   sanctions and there will be new laptops in the courtroom.
                  United States Department of                   16   Okay?
15                  Veterans Affairs
                  4150 Clement Street                           17         All right. Fine. You may proceed. I take it you
16                San Francisco, California 94121               18   have solved all your motions in limine?
                BY: SUZANNE C. WILL, ESQ.
17                                                              19         MR. GONZÁLEZ: Your Honor, we have not.
18                United States Department of                   20         I do, however, your Honor, want to let the Court know
                    Veterans Affairs
19                810 Vermont Avenue, NW                        21   that we were conferring as recently as last night with opposing
                  Washington, D.C. 20420                        22   counsel trying to resolve some of our disputes.
20              BY: CHRISTOPHER P. MCNAMEE
21                                                              23         THE COURT: It didn't help, did it?
22   Also Present:       AL BOCCHICCHIO                         24         MR. GONZÁLEZ: Well, it helped a little bit, but it
                     - VA Representative
23                                                              25   doesn't resolve the issues.
24                   _ _ _ _
25
                                                                                                                                       4
                               4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1          Your Honor, there are two items that I would like to            1    not been able to reach agreement on.
2    just bring to the Court's attention and get guidance from the         2          I appreciate, your Honor, it's a little late in the
3    Court as to when and how you want to deal with these two items        3    day to be bringing up discovery, but discovery has been
4    before we get to the in limine motions.                               4    happening as of this weekend.
5          Those two items, your Honor, are that we received on            5          In the one interrogatory response -- and, again, your
6    Friday a privilege log for the first time that has a number of        6    Honor, it's simply a matter of asking the Court when the Court
7    documents that have been withheld on the basis of                     7    would like to consider this.
8    attorney-client privilege and, more importantly, something            8          The Court will hear in a few minutes an opening
9    called a deliberative process privilege. There were 31                9    statement about some delays that have been created when
10   documents withheld under the deliberative process privilege.          10   veterans are waiting for their claims to be processed and how
11         We believe, your Honor, that the Court should and,              11   many veterans died during the time that there were these
12   indeed, must review those in camera. There has been no showing        12   lengthy delays.
13   that they are privileged in any way. They are simply listed on        13         We asked an interrogatory, your Honor, that was
14   a chart.                                                              14   intended to elicit some information from defendants as to how
15         And I want to just briefly, your Honor, give you just           15   long it takes to process claims, an interrogatory that we
16   one example so that the Court can see why these documents we          16   thought was fairly simple, especially since a couple of their
17   think are so important to this trial.                                 17   witnesses had said that they could get the information fairly
18         There is one document on the privilege log, which is            18   quickly.
19   protected, according to the defendants, under the deliberative        19         And I want to just read to you what the --
20   process privilege and here is how it's described.                     20         THE COURT: Wait a minute. The question is how long
21         THE COURT: Wait, wait. Before you go through all                21   does it take to process a claim? Is that the question?
22   that, you know, with all these attorneys -- you got a whole           22         MR. GONZÀLEZ: Your Honor, the question is --
23   bunch of attorneys over here, a whole bunch of attorneys over         23         THE COURT: How can you know that when you've got
24   there. You mean to tell me they can't figure out whether it's         24   thousands of claims?
25   privileged or not?                                                    25         MR. GONZALEZ: No, the question is the average. Yes,


                                                                       5                                                                          7




                               4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1          I will ask the government. Are these privileged or              1    your Honor, I appreciate that. The average number of days that
2    not? You think I'm going to waste my time going over all this         2    it takes them to process claims in the regional office, and the
3    information to determine either they are privileged or not?           3    response that we got was "not available."
4    Can't you figure it out among yourselves?                             4          Now -- and this is only going to take me 60 seconds,
5          MR. BENSING: Your Honor, I would hope that we can.              5    your Honor, to tell you what this issue is.
6    Mr. González raised this last night in a phone conversation. I        6          THE COURT: I don't mind talking about something that
7    agreed to review the documents this morning.                          7    is probative.
8          We can consultant over the noon hour and see if we              8          MR. GONZÁLEZ: All right. Well, this is certainly
9    can either reach agreement, or failing that, either write a           9    probative, your Honor.
10   short letter brief, if that would be helpful, or present the          10         THE COURT: All right.
11   issue any other way.                                                  11         MR. GONZALEZ: We believe it goes right to the heart
12         THE COURT: It would be helpful for you to get out               12   of our due process claim.
13   and figure it out among yourselves. I will see you at noon            13         When we conferred last night, we inquired as to what
14   time or thereafter and we will deal with it when it comes up.         14   does they mean it's not available. Your witness says it is.
15         But I'm not going to waste my time dealing with it.             15   And this is the response that we got.
16   I have got enough heavy matters in this case to worry about           16         The response that we got was that the computer system
17   whether something is privileged or is not privileged or               17   that they have can give us some information on PTSD claims. If
18   what-have-you. And you have got 20 lawyers on each side that          18   veteran number one goes in and has a claim for PTSD, they can
19   can figure this out just as well as the Court can.                    19   give us an answer to that question, how long it takes to
20         Because if I have to go through this and I find out             20   process that claim; but they say that that's not the complete
21   that they are not privileged and I'm wasting a lot of time on         21   picture because for some reason, according to them, if you go
22   it, I think maybe I ought to impose some sanctions on you.            22   in and complain about PTSD and other things, "I have got a bad
23         Okay. What's the next thing you got?                            23   leg," then that maybe they can't get.
24         MR. GONZÁLEZ: The other issue, your Honor, we have              24         Now, I don't quite understand that, but here is our
25   is with respect to just one interrogatory response that we have       25   point. Our point is, as I told them last night, well, wait a


                                                                       6                                                                          8
                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    minute. If you can get us the average number of days it takes         1          And the explanation was that they do, indeed, have
2    to process a PTSD claim, give us that. And if that's not the          2    information for people that go in and have a claim that deals
3    complete picture, well, then, that goes to the weight. You can        3    solely with PTSD, but they claim that for some reason some
4    explain that to the judge, but we at least are entitled to            4    other information is not available if you have PTSD plus
5    that. It's something that's computerized and it should be easy        5    something else.
6    to get. Goes right to the heart of our due process claim, your        6          I don't know if that's true. I don't know what their
7    Honor.                                                                7    computers can or cannot do. But at a minimum, your Honor, we
8          So the issue is this. We would like to orally --                8    should be entitled to get what they can give us. And if that
9    because we don't have time to do it in writing. We can do it          9    is only the PTSD claims, then we should get that and we will
10   in writing if the Court would like -- argue a motion to compel        10   present that to the Court as part of our due process case.
11   a response to that one question, which is a simple question.          11         THE COURT: What's unreasonable about what he says?
12         THE COURT: You just argued it.                                  12         MR. LEPLEY: It did sound reasonable, your Honor.
13         MR. GONZÁLEZ: I'm arguing it now, your Honor. This              13   Unfortunately, there are some suppositions, some premises in
14   is it. We can do it now.                                              14   there that aren't quite accurate.
15         Is, what is the average number of days to process a             15         They asked for PTSD and generally average times for
16   claim? And, again, the answer that they gave was not                  16   -- from the initial claim, to the first stage, the second
17   available. That is not accurate. They do have information             17   stage, the third stage, the fifth stage, the fourth stage. We
18   that is available and that is responsive. It goes to the heart        18   gave them -- nine of the ten boxes were filled in.
19   of due process and we believe, your Honor, they should be             19         What wasn't filled in was PTSD at the initial stage
20   compelled to give us that.                                            20   because it's not available. The reason it's not available is
21         THE COURT: How do you know that?                                21   we can't generate the data in the way they ask for it.
22         MR. GONZÁLEZ: How do we know what?                              22         There a number -- it's more complicated than simply,
23         THE COURT: That it's available?                                 23   go ask the computer. There are some claims that come under one
24         MR. GONZÁLEZ: Because they told us last night, your             24   code. There are other claims that come under another code, and
25   Honor, in our telephone conference.                                   25   we can't parse out all the PTSD claims into one discrete


                                                                       9                                                                          11




                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1          What they told us last night -- there we are, your              1    element and then say, and divide by the number of days and give
2    Honor, trying to work these things out.                               2    them an average. We can't do it. It's unavailable.
3          THE COURT: What did they tell you last night?                   3          Now, the deposition they referenced, the witness did
4          MR. GONZÁLEZ: They told us last night --                        4    not say it was available. He said he thought he could do it.
5          MR. ERSPAMER: The depo, depo testimony.                         5          We will have a witness testify this week, your Honor,
6          MR. GONZÁLEZ: Your Honor, in deposition we were told            6    precisely what we have, how it works, why we can't give the
7    that this information was available, for starters. The                7    data they want. They basically -- they just aren't happy that
8    response comes back and says not available.                           8    they can't get the data.
9          THE COURT: When was the deposition taken?                       9          Now, in their demonstratives that they have given us,
10         MR. GONZÁLEZ: Your Honor, it would have been --                 10   they have already thrown a number in there. We don't think
11         THE COURT: Roughly?                                             11   it's right and we don't know where they got it, since it didn't
12         MR. GONZÁLEZ: I'm going to tell you exactly here.               12   come from us, but the data that they want specifically simply
13   Well, it's the Mayes deposition.                                      13   doesn't exist in the form that they want it.
14         MR. ERSPAMER: It's the deposition I took, your                  14         THE COURT: Who is going to testify as to what you
15   Honor. He testified three times.                                      15   just said?
16         THE COURT: When? The date?                                      16         MR. LEPLEY: Michael Walcoff is going to testify as
17         MR. ERSPAMER: About April 7th.                                  17   part of our case.
18         THE COURT: Of this year?                                        18         THE COURT: All right. You named him.
19         MR. ERSPAMER: Of this year.                                     19         MR. LEPLEY: Thank you, your Honor.
20         MR. GONZÁLEZ: All the depositions in this case, your            20         MR. GONZÁLEZ: Your Honor, if they are representing
21   Honor, were taken in the last few weeks.                              21   to the Court that this individual is going to testify that they
22         In any event, so the purpose of the phone call last             22   cannot give any information responsive to our interrogatory, we
23   night was simply to question them about the discrepancy. Wait         23   will cross this individual when he gets here.
24   a minute. Your interrogatory says not available. Your                 24         I'm simply telling the Court now that the
25   witnesses say it is available. Explain yourself.                      25   representation they made last night was different than what


                                                                      10                                                                          12
                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    they just said and that if, in fact, there is information that         1    nothing more to say about that.
2    this individual says is responsive, we would have been                 2             THE COURT: I read the papers earlier today.
3    prejudiced because our people are going to start testifying            3             MR. LEPLEY: All right. I think as a preliminary
4    today.                                                                 4    matter, we wanted -- because most of this deals with who can
5             So I won't take any more of the Court's time now, but         5    testify, the timing of this trial is -- we want to make sure
6    I'm putting them on notice --                                          6    that the plaintiffs have three days to put on their case and
7             THE COURT: I think what we will do, we will just              7    then we are going to start on Thursday --
8    cross that bridge when we get there.                                   8             THE COURT: I will tell you this. If the plaintiff
9             MR. GONZÁLEZ: I agree, your Honor. That's fine.               9    needs more time, I'm going to give them more time. I'm not --
10   Thank you, your Honor.                                                 10   you know, this is not going to be we'll leave on the railroad
11            THE COURT: Wait a minute. Before you leave, you got           11   track, you know, with the train coming down the track.
12   something else?                                                        12            MR. LEPLEY: Very good, your Honor. The reason we
13            MR. GONZALEZ: Well, your Honor --                             13   ask --
14            THE COURT: If you don't, that's fine.                         14            THE COURT: If they happen to need more time, I'm
15            MR. GONZÁLEZ: Your Honor, I was going to argue the            15   going to give them more time. If you happen to need more time,
16   in limine motion that they filed on experts. I don't know when         16   I will give you more time. It's a very serious case and I'm
17   the Court wants to consider that. Our experts are going to             17   not going to have time limits.
18   start testifying today.                                                18            MR. LEPLEY: Very good, your Honor. The reason we
19            THE COURT: Right now. What's the matter with now?             19   ask is --
20            MR. GONZÁLEZ: Well, let's argue it right now.                 20            THE COURT: What I do want is a witness here when
21            Your Honor, one of the things I don't like about the          21   they are supposed to be here, so somebody doesn't tell me at
22   federal rules is that they have got them divided up so that            22   2:00 o'clock in the afternoon, "We are out of witnesses."
23   it's very hard to refer to any specific section.                       23   Because I have a rule. If you are out of witnesses, you rest
24            There is a federal rule section, your Honor. It's             24   you are case.
25   26 (a)(2)(C)(i). And it says, your Honor, that you are                 25            MR. LEPLEY: Which is precisely why I bring this up.


                                                                       13                                                                          15




                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    supposed to disclose and exchange expert reports 90 days before        1    Our witnesses are mostly out of town, your Honor, so we need to
2    trial.                                                                 2    have some planning and plaintiffs have gone with the
3             THE COURT: I understand. I understand that.                   3    trial-by-surprise strategy of not telling us the witness order
4             MR. GONZÁLEZ: Okay. The Court has been around this            4    until the night before.
5    many times. I appreciate that, your Honor. Here is the point.          5             In addition, we want to call our witnesses. We can't
6             We didn't have the luxury of time here. They are              6    bring high level people out here and just have them sit around
7    saying we shouldn't be allowed to have experts. Because we             7    until plaintiffs deign to call them. We don't know how long
8    didn't have reports, we failed to comply with this rule. We            8    their case is going to take, and that's our concern. That's
9    were supposed to give them reports 90 days ago.                        9    actually our primary concern.
10            What they forget to tell the Court, which is what the         10            THE COURT: What will this take? Four days? What
11   Court already knows, you set this trial date 30-some days ago.         11   did you say, three days?
12   It was impossible to comply with that rule. They understood            12            MR. ERSPAMER: For our case?
13   that.                                                                  13            THE COURT: Yes.
14            If they wanted written expert reports, they should            14            MR. ERSPAMER: I think about four days.
15   have come in here -- actually, they should have stood up in            15            THE COURT: Four days.
16   court that day --                                                      16            MR. ERSPAMER: Maybe five. Four-and-a-half maybe,
17            THE COURT: They are complaining about your expert             17   somewhere around there.
18   reports?                                                               18            THE COURT: You'll finish this week because we have
19            MR. GONZÁLEZ: Yes, your Honor.                                19   no trial on Friday. I have law and motion on Friday.
20            THE COURT: That's okay. Your expert can testify.              20            MR. ERSPAMER: We will certainly try, your Honor.
21            MR. GONZÁLEZ: That's all we need. Thank you, your             21            THE COURT: Why don't we -- I will give you this week
22   Honor.                                                                 22   to try your side, all right? Okay. So then your people will
23            MR. LEPLEY: I guess we are doing these backwards,             23   come next week.
24   since they responded to our motion in limine instead of dealing        24            MR. LEPLEY: Very good, your Honor --
25   with their four. And I heard the Court's ruling, so we have            25            THE COURT: All right. Does that satisfy you?


                                                                       14                                                                          16
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1           MR. LEPLEY: Well, we do have conflicts that some of             1    testimony and their evidence, that there is some relation to it
2    our witnesses are probably not available next week, but we             2    by some of the witnesses.
3    will talk to plaintiffs. Maybe we can bring some of our                3          You can't ignore the Court of Appeals. They are
4    witnesses --                                                           4    there. And if that has some bearing upon what they want to
5           THE COURT: Well, if you have got somebody that is               5    say, we will hear that. And if I find that it's not relevant
6    important, that they can't be here next week, bring them this          6    because the Court of Appeals are out, I will just disregard
7    week. We will take them out of order. We don't have a jury.            7    that in any decision that I make.
8           MR. LEPLEY: Exactly. We will work with the                      8          MR. LEPLEY: That's our position, your Honor. It's
9    plaintiffs and establish that.                                         9    actually us, that we are going to talk about the court of the
10          THE COURT: We will work that out.                               10   veterans appeals that they didn't want to talk about.
11          MR. LEPLEY: So let's go to the motions in limine                11         THE COURT: It may very well, because if one of the
12   that are left. You have already decided the first one.                 12   arguments is that what are the appeal rights of a veteran, you
13          Plaintiffs brought four against us. First, they                 13   can't ignore the Court of Appeals.
14   complained that they didn't get copies of the exhibits in the          14         MR. LEPLEY: We agree, your Honor.
15   weekend.                                                               15         MS. MOSER: Well, your Honor, I think our point was
16          Of course, they didn't give me -- give copies of                16   that we tried to get some discovery. Then the court was
17   their 461 exhibits, and they are complaining that we didn't            17   dismissed, and then the subpoena was quashed. So we were
18   give them copies of our 17 exhibits. The reason -- and we              18   deprived of any information about the Court of Appeals for
19   didn't give them Bates numbers because he don't know the Bates         19   veterans claims. So we didn't want the defendants coming in
20   numbers. We don't have the Army that they have. We didn't              20   here now presenting evidence with respect to the Court of
21   keep them in that forum. We turned over the stuff. We didn't           21   Appeals that we were deprived of in the discovery process.
22   look at it all.                                                        22         THE COURT: I'm sure you know the process is. You
23          So they ask for, one, things we don't have; and, two,           23   have an expert on curing it. He will tell you what the process
24   just entirely unreasonable that we would be able to produce            24   -- how a veteran appeals his cases, what rights he has. You
25   things that we don't have and we don't have time to prepare.           25   can't ignore the Court of Appeals on that basis.


                                                                       17                                                                          19




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1           THE COURT: I will tell you. If you don't have                   1          MS. MOSER: Certainly, your Honor, we would agree
2    something, you don't have it. I mean, if somebody comes in and         2    that it's relevant to this, but we would just simply ask that
3    says, "I want something," and you say, "I don't have it," you          3    we not be prejudiced by them introducing evidence that they
4    don't -- if it's a true statement, you don't have it, you don't        4    withheld during the course of discovery.
5    turn it over.                                                          5          THE COURT: If it's relevant to the case, I will use
6           MR. LEPLEY: All right. Thank you.                               6    it; but if it's not, the Court of Appeals is out. You can't
7           And the other point is they wanted our exhibits, but            7    decide this case without having some testimony about the --
8    they refused to turn over theirs. I mean, they wouldn't ship           8    what rights the veteran has, and one of the rights he has is to
9    us 461 documents -- and, frankly, we didn't want them -- but at        9    go -- is to utilize the Court of Appeals.
10   the same time there is no reason they would get ours ahead of          10         MR. LEPLEY: And, your Honor, that's not the case.
11   that, too.                                                             11   We are not introducing any defendant --
12          THE COURT: As far as the exhibits, you know, each               12         THE COURT: That is not the case.
13   side has their own arguments why the other side is bad, but we         13         MR. LEPLEY: We are having our own witnesses testify
14   can take those up as they come along.                                  14   about their experience. It has nothing to do with the Court or
15          If there is an exhibit to be shown and you haven't              15   any evidence that came from the Court.
16   seen it before and you need time to look at it, I will give you        16         MS. MOSER: Okay. it sounds like we are in agreement,
17   time to look at it.                                                    17   your Honor.
18          MR. LEPLEY: Okay. Very good. Let me move to the                 18         MR. LEPLEY: Which was in our papers.
19   next one, your Honor.                                                  19         Let me go -- this was an easy one. They want an
20          They ask that anything related to the Court of                  20   adverse inference regarding witnesses who are not required --
21   Appeals for veterans claims regarding the precedential nature          21         THE COURT: Wait, wait, wait. I will save you a lot
22   of their decisions --                                                  22   of time. There is no adverse interest in this thing. You use
23          THE COURT: I read that. On that basis the Court of              23   an adverse interest when you have a jury trial. You don't use
24   Appeals is out now and the judge -- Chief Judge is out.                24   it when you have a court trial. It's called credibility of the
25   However, it may very well be during their course of their              25   witnesses.


                                                                       18                                                                          20
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1            MR. LEPLEY: Good.                                              1    tantamount to using an expert in rebuttal that you didn't
2            THE COURT: And whether or not you have sustained               2    disclose on the direct.
3    your burden of proof.                                                  3           MR. LEPLEY: Tantamount to that, yes, your Honor.
4            MR. LEPLEY: All right. Moving on to the last one               4           MS. MOSER: Your Honor, I think we can make this a
5    that they raise.                                                       5    lot simpler. This just seems like a complaint about our
6            They complain about initial disclosures. They didn't           6    initial disclosures, which we supplemented and everything is
7    provide their initial disclosures until April 11th, I guess it         7    fine. It was all wrapped up in the protective order.
8    was, last week. They didn't do it last fall when we did ours           8           Really, the problem here is that their witnesses --
9    because they said there was a fear about the witnesses                 9    they came into court, I believe, one Monday when we were before
10   revealing their identities.                                            10   your Honor and said they really need to supplement their
11           They never sought leave from this Court to not file            11   initial disclosures. They have got to do. It's really
12   initial disclosures in October.                                        12   important. We need to know who the witnesses are.
13           THE COURT: What do you mean by "mutual disclosure"?            13          And they didn't supplement theirs and then we see
14   Disclosing what?                                                       14   witnesses who are on their list who aren't in the initial
15           MR. LEPLEY: Initial disclosures under Rule 26. We              15   disclosures, and we felt that that prejudiced us in terms of
16   now are required to disclose witnesses -- or individuals who we        16   our discovery.
17   think may have evidence relevant to the case and documents that        17          THE COURT: I'm sure both sides have all the core
18   are relevant to the case. Those initial disclosures that come          18   witnesses that they need to present their case. I'm sure of
19   at the very beginning now.                                             19   that. And I think that -- I'm sure you are also going to have
20           THE COURT: Hasn't that been done?                              20   a lot of witnesses that possibly are duplicative of somebody
21           MR. LEPLEY: We did it in October. They did a                   21   else's testimony and what-have-you.
22   partial initial disclosure, but then they refused to identify          22          I think at the end we can ferret all that out and
23   individuals that they said would have relevant testimony               23   when the witness comes up, we will take a look at it at that
24   because they said they had a fear of retaliation. They didn't          24   particular time.
25   ask the Court for relief. They just did it unilaterally.               25          MS. MOSER: We will take it as it comes, your Honor.


                                                                       21                                                                          23




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1            Now, later on they --                                          1           MR. LEPLEY: I think that probably resolves the other
2            THE COURT: I ruled upon that sometime ago.                     2    point I was going to make. We had a motion in limine on expert
3            MR. LEPLEY: Yes. Later on they filed a motion for a            3    testimony, legal testimony by some of their experts. We can
4    protective order to keep those identities secret and the Court         4    raise that at the time, your Honor. When they start testifying
5    denied it.                                                             5    as a legal basis for something --
6            Then we asked, you know, you have no basis for                 6           THE COURT: As I understand what their witnesses are
7    withholding those initial disclosures. Please turn them over,          7    going to talk about, the procedure that a veteran goes through
8    and they ignored that.                                                 8    to appeal.
9            It wasn't until we were out here on a discovery                9           MR. LEPLEY: Which is fine.
10   matter that we brought it up in front of the Court and then            10          THE COURT: Yeah, that's fine. And if he throws in a
11   they said, okay, we will do it, and they did it on April 11th.         11   little law here and there. . .
12   But on April 11th it wasn't even complete.                             12          MR. LEPLEY: And if it gets out of hand, we will make
13           THE COURT: Wait a minute. What's the purpose of                13   an objection at that time and the Court can deal with it at
14   your motion?                                                           14   that time.
15           MR. LEPLEY: It isn't our motion. It's their motion.            15          THE COURT: That will be fine.
16   We don't think this has any basis and it's wasting the Court's         16          MR. LEPLEY: The last issue that we really have to
17   time.                                                                  17   deal with is they are trying to call again senior VA officials
18           We are just pointing out that they didn't comply and           18   in Washington. They want to call Dr. Kussman and we --
19   their complaint against us is that there are a couple witness          19          THE COURT: Is this the situation where the
20   on our witness list that weren't in our initially disclosures          20   individual is a party defendant?
21   back in October and we didn't supplement. And the reason for           21          MR. LEPLEY: Yes. And in the first half of this
22   that is we didn't know what our defense was until we knew what         22   hearing you allowed Dr. Cross to substitute for Mr. Kussman.
23   the plaintiff's case was, and that -- you know, they didn't            23          THE COURT: The only thing is that the doctor
24   really make that clear until the spring. That's our defense.           24   testified and the only point is if the defendant is a -- going
25           THE COURT: What you are saying, your argument is               25   to testify to exactly the same thing he did, that's one thing.


                                                                       22                                                                          24
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1           However, if they allege that through discovery that             1             MR. LEPLEY: When he is on the stand, when you hear
2    there are other items they wanted to testify -- him to testify         2    the evidence, I think you are going to understand our concern
3    on, examine him on, they should have a right to do that because        3    and I don't think they are going to be able to make that.
4    he is a defendant in the case.                                         4             But having then made that allegation, I understand
5           MR. LEPLEY: Yes, your Honor. But Mr. Kussman                    5    your position that he should be required to appear and we will
6    doesn't have --                                                        6    work with him on that.
7           THE COURT: We will ask them: Is there anything                  7             The second one is, they wanted Mr. Terry, who is the
8    other than that testimony that you are going to need other than        8    head of the Board of Veterans Appeals, and we are going to have
9    to have him come to testify?                                           9    Mr. Keller, who is the deputy vice-chairman of the Board of
10          MR. GONZÁLEZ: Your Honor, without giving them a road            10   Veterans Appeals, his right-hand man. He knows everything that
11   map to our cross-examination, I wouldn't bring Dr. Kussman here        11   Mr. Terry knows. There is no allegation that Mr. Terry has
12   to waste his time, mine or yours if we didn't have anything to         12   personal knowledge in this case, and we are going to have him
13   ask.                                                                   13   out here.
14          I will simply make this representation to the Court.            14            THE COURT: He is not a defendant in the case, is he?
15   In the last 10 days more than 100,000 pages of documents have          15            MR. ERSPAMER: Yes, he is.
16   been produced to us. Many of them contain information that's           16            MR. LEPLEY: No. Well, Mr. Terry is named as a
17   pertinent to Dr. Kussman, who is a named defendant, and that's         17   defendant, your Honor, but he is wrongly named and we haven't
18   why we want him here.                                                  18   taken the time to formally move to dismiss him, but he is not
19          THE COURT: Why are they pertinent to him?                       19   an agency head.
20          MR. GONZÁLEZ: Because he either wrote them or they              20            THE COURT: Why can't this other fellow say the same
21   refer directly to him or they were written to him and they talk        21   thing he knows?
22   about his knowledge, about facts relevant to this case.                22            MR. ERSPAMER: Your Honor, they want to substitute
23          It's not some collateral issue. We are not asking               23   someone. They want to substitute a lawyer for Mr. Terry. Many
24   somebody to --                                                         24   of these documents that we have are written by Mr. Terry. They
25          THE COURT: It's one thing of being relevant and                 25   are testimony by Mr. Terry. They want to substitute -- they


                                                                       25                                                                          27




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    another thing being material.                                          1    want their professional witness who testifies in place of Mr.
2           MR. GONZÁLEZ: We believe they are both, your Honor.             2    Terry.
3    We believe they are relevant and material. We are not simply           3             If they want to call him in their case, fine. He's a
4    going to, you know, replicate the cross examination of                 4    defendant in this case.
5    Dr. Cross. They are different questions for a different                5             And I will make the same representation that Mr.
6    witness.                                                               6    González made. We have a good faith basis for relevant,
7           I'm told that the witness is out of the country this            7    material examination in our case of Mr. Terry. We need him.
8    week, so I did want to mention this. We will be able to make a         8             MR. LEPLEY: Your Honor, I can respond to both.
9    good faith effort to close our case this week, but, obviously,         9             One, they are both lawyers, so that doesn't make any
10   if he is out this week -- I have already told him, I will              10   sense.
11   cooperate with him. If he is not available this week, just             11            Two, he is not a professional witness. Neither of
12   tell me when he is available and bring him and we'll do him at         12   them are professional witness. They are professional
13   that time and we will just close our case but -- with the              13   administrators and they have a big agency to run. There is no
14   exception of leaving that examination open for when he is              14   reason other than to harass the defendants that they are doing
15   available. I understand he is out.                                     15   this.
16          THE COURT: Pick a date next week or the following               16            MR. ERSPAMER: That is not true, your Honor. He is a
17   week and we will have him here.                                        17   party.
18          If they make that allegation and he is a defendant              18            THE COURT: What's he going to testify to that the
19   and there is things that he has received and he has written and        19   other gentleman can't testify to?
20   what-have-you, I think they should be able to cross examine him        20            MR. ERSPAMER: Documents he has written. Testimony
21   on that.                                                               21   he has given.
22          MR. LEPLEY: I take your point, your Honor. I do                 22            THE COURT: Shouldn't the documents speak for itself?
23   hope next week --                                                      23            MR. ERSPAMER: No. They have to be explained, your
24          THE COURT: We will try to accommodate him as much as            24   Honor. There are a lot of discrepancies in a lot of these
25   we can.                                                                25   documents and the data.


                                                                       26                                                                          28
                                 4/21/2008 Trial Transcript                                                4/21/2008 Trial Transcript


1            He runs the court -- I mean, the Board of Veterans             1          THE COURT: They are going to give you a list, you
2    Appeals. He is a very -- you will see in this case that the            2    give them a list and we take it from there.
3    delays at the BVA are incredibly long. A lot of issues we have         3          MR. LEPLEY: We have done that. What we would ask is
4    are with the BVA and the long waiting times.                           4    for a list of exhibits that they are they are going to put in
5            I don't think they can make a representation that two          5    through each witness ahead of time. Because now we are going
6    people have exactly the same knowledge. They are calling this          6    to put a witness on this morning and we are going to have to
7    other person in their case, that's fine, but we want Mr. Terry         7    comb through 461 exhibits, which we've never seen and we won't
8    here to testify in our case. We only asked for a very small            8    know about until they testify about that.
9    number of VA witnesses. We cut it down in virtue of these very         9          All we ask is that they give us the exhibits they are
10   small number of witnesses. We need him.                                10   going to use with each witness ahead of time, which they
11           THE COURT: Well, he has had made the representation            11   clearly know. We only have 17. They have 461. It's really
12   that they are -- that he's material and that they are documents        12   just prejudice.
13   that he has written himself. I think I have no alternative             13         MR. ERSPAMER: Your Honor, first of all, we gave them
14   with that.                                                             14   the witness list in the pretrial statement. Every single
15           MR. LEPLEY: I understand, your Honor.                          15   document, except the recently produced ones, is on a list.
16           THE COURT: We will try to accommodate him.                     16         THE COURT: He's talking about the order.
17           MR. LEPLEY: I understand your ruling.                          17         MR. ERSPAMER: The pretrial conference statement, we
18           Okay. There are three small matters that we would              18   listed every exhibit that we had at that time. They are almost
19   like to bring up because we are trying to get away from the            19   all their documents. Almost all these are their documents,
20   trial by surprise.                                                     20   which they have known about in the pretrial conference
21           They have refused to give their witness order until            21   statements. So to say they just get got them today is
22   the night before, and we don't understand why they need to do          22   absolutely wrong.
23   that.                                                                  23         THE COURT: Please give them a list of the
24           THE COURT: No problem with that. I want you to give            24   witnesses --
25   the witness order the night before. Is that what you wanted?           25         MR. ERSPAMER: Okay.


                                                                       29                                                                         31




                                 4/21/2008 Trial Transcript                                                4/21/2008 Trial Transcript


1            MR. LEPLEY: That's what they want to do now. At                1          THE COURT: -- and a list of the documents you are
2    6:00 o'clock at night we find out, but they don't tell us which        2    going to use.
3    of their 461 --                                                        3          MR. LEPLEY: And what we would like is which exhibits
4            THE COURT: There is no reason why you can't give the           4    go with which witness because we can't -- otherwise they have
5    witness order starting today, what they are going to be for the        5    got so many, we don't know which ones they are going to use
6    rest of the week.                                                      6    with which witness.
7            MR. LEPLEY: Thank you, your Honor. That's fine.                7          MR. GONZÁLEZ: Your Honor, this is a very important
8            THE COURT: For both sides.                                     8    issue. I need to say something again I just said a moment ago.
9            MR. LEPLEY: We have 17 exhibits, which they can --             9    They have produced 100,000 pages in the last few days. We were
10           MR. ERSPAMER: Both sides?                                      10   literally still reviewing those documents. What they want is
11           MR. LEPLEY: Well, as soon as we work out with them             11   to do a --
12   our out-of-town witnesses.                                             12         THE COURT: This is what we are going to do.
13           THE COURT: Normally, the witness order isn't that              13   Normally you wouldn't even be discussing something like this.
14   important.                                                             14         We will just take it on an ad hoc basis, as I said
15           MR. LEPLEY: Right. And once we work out --                     15   before. I think it's going to be impossible if you say what
16           THE COURT: Except when I look at all these exhibits            16   exhibit a witness is going to use or he isn't going to use.
17   you have, you have to prepare -- the attorney has to prepare           17         Present the witness. If you need time to read the
18   his own notes to get the material that he needs.                       18   exhibit, take the time you want. As I told you before, I will
19           MR. LEPLEY: Well, our exhibits come in a binder                19   give you all the time you need to present your case.
20   that's one inch, your Honor. Those are their exhibits                  20         MR. LEPLEY: Thank you, your Honor.
21   (indicating), and that's the problem. They have 461 new                21         And the last point we would raise is they now --
22   exhibits on top of however many they had before -- or is that          22         THE COURT: I want you to feel at the end of the
23   461 in total? We can't look through all those. They didn't             23   trial, I don't like the judge's decision, but I think he gave
24   give them to us until this morning. So we would ask that they          24   me enough time.
25   tell us which exhibits --                                              25         MR. LEPLEY: I appreciate that, your Honor.


                                                                       30                                                                         32
                                  4/21/2008 Trial Transcript                                             4/21/2008 Trial Transcript


1              Last point. They have now something like 1285, they         1    the Court that I have never seen a case like this before where
2    are up to, but they have only produced 1242. And they produced        2    the appearance and the reality gap is so big.
3    like 10, or I don't know how many demonstrative exhibits last         3          The preliminary injunction testimony you heard in
4    night that they are going to use today because the Court              4    March focused on a lot of medical issues. It was before
5    adopted their order that they said could produce demonstrative        5    discovery was taken in this case. And you heard a rather rosy
6    exhibits the night before.                                            6    portrayal of the VA health care system from Dr. Cross.
7              We now know that they have 30, apparently, already          7          The first dose of reality and what created this gap,
8    prepared. We would ask that they show us the demonstrative            8    part of the gap between appearance and reality came in the
9    exhibits when they are prepared because -- and we are running         9    depositions of the VHA, Veterans Health Administration, and
10   around this morning trying -- and we will counter what they do        10   VBA, Veterans Benefits Admission, depositions that were
11   because some of them are really inaccurate, but we ought to be        11   completed on April 10th.
12   able to see those when they are prepared.                             12         The designations of testimony of those witnesses
13             THE COURT: If you have demonstrative exhibits that          13   constitute some of the most important evidence before this
14   are prepared and you are going to -- and you are going to use         14   Court.
15   them -- sometimes you prepare demonstrative exhibits and you          15         The second dose of reality came in the document
16   don't use them, but if you were going to use them, then it's          16   productions, your Honor, and it also created a huge divergence
17   only fair that you give it to the other side so that they can         17   between appearance and reality.
18   look and see whether or not they are correct.                         18         MS. SPRENKEL: May I approach?
19             MR. ERSPAMER: That's exactly what we did. We gave           19         MR. ERSPAMER: We are going to use the easel, your
20   them to them last night. They were not finalized until                20   Honor.
21   yesterday.                                                            21         First of all, there were some extremely startling --
22             THE COURT: Last night was Sunday night.                     22        (Brief pause.)
23             MR. ERSPAMER: I know. We just finished them, your           23        (Document displayed)
24   Honor.                                                                24         MR. ERSPAMER: So we received some very startling
25             MR. LEPLEY: Before the night before.                        25   revelations in these documents, your Honor. At the same time


                                                                      33                                                                         35




                                  4/21/2008 Trial Transcript                                             4/21/2008 Trial Transcript


1              MR. ERSPAMER: We will get them to them as soon as we        1    that the VA was questioning Mr. Rathbun's suicide incident
2    can. Some of them are not going to be finalized till the last         2    numbers at the preliminary injunction hearing, it had already
3    minute. That's just the way this trial is going to be.                3    confirmed internally the accuracy of the suicide numbers.
4              THE COURT: How many demonstrative do you have?              4          And, in fact, the VA's total suicide analysis numbers
5              MR. ERSPAMER: I don't even know, your Honor, to tell        5    was even higher than that of the doctor we presented,
6    you the truth.                                                        6    Dr. Rathbun. Not 120 a week. Their numbers were 126 a week.
7              THE COURT: Tell them more than the night before.            7    You see that in this email (indicating).
8              MR. ERSPAMER: They have got the main ones right now         8          THE COURT: To tell you the truth, I can't see that.
9    anyway. They have got all the main ones. The time line, they          9          MR. ERSPAMER: You can see it on the screen.
10   have all the major ones right now, and we haven't seen any of         10         All right. I will read it to your Honor.
11   theirs.                                                               11        "There are 18 suicides per day among America's
12             THE COURT: That's a different argument.                     12      25 million veterans. This follows from CDC findings
13             MR. LEPLEY: Your Honor, they have seen all the ones         13      that 20 percent of suicides are among veterans. It
14   we have prepared thus far.                                            14      is supported by the CBS numbers."
15             THE COURT: Okay. Is that it?                                15         The second piece of information received that was
16             MR. ERSPAMER: That's it. Are we ready for the               16   quite startling on the medical side was from Ira Katz, who you
17   opening, your Honor?                                                  17   heard testimony from in March. This is also about the CBS
18             THE COURT: Wait a minute. Let me ask the reporter.          18   story about suicides.
19   Are you ready?                                                        19         And we have it here in this email, which starts out
20         (Discussion held between the Court and the                      20   with the letters "Shh." Top secret. He reports that: 1,000
21             court reporter.)                                            21   suicide attempts occurred amongst veterans, just the veterans
22                     OPENING STATEMENT                                   22   treated in VA facilities every month. Think about that. 1,000
23             MR. ERSPAMER: Your Honor, I begin with the theme            23   attempted suicides a month just in the VA -- VA's own
24   that the Court focused on in the motion to dismiss ruling: The        24   facilities, excluding suicide attempts elsewhere. Another
25   divergence between appearance and reality. And I have to tell         25   startling revelation, your Honor.


                                                                      34                                                                         36
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1          Just last week the VA inpatient psychiatric wing in              1    dismiss order, where the Court distinguished the Beamon case at
2    Dallas experienced the fourth suicide, inpatient suicide in            2    16 through 20.
3    recent months.                                                         3             We will rely on a number of key admissions from VA
4          Why is this so telling? Because it's happened across             4    officials in depositions, and I note that the VA is not
5    the country everywhere. The reaction of the VA last week was           5    bringing any of these senior officials to testify at this
6    to close the facility. I think it's very telling. They didn't          6    trial.
7    try to fix the problem. They just closed the hospital. They            7             But one -- one issue, your Honor, that you did decide
8    closed the inpatient wing.                                             8    with respect to the health care in the motion to dismiss has a
9          We also received some very startling data on claim               9    parallel in the adjudication side, and that is whether or not
10   processing, on the adjudication of these PTSD claims. We               10   veterans have an entitlement to service-connected death and
11   found, contrary to a lot of the public reports, that it now            11   disability compensation. And I wanted to just give you a very
12   takes an average of almost -- average of 1419 days from a              12   short clip from Admirable Cooper's deposition, who just
13   notice of appeal -- it's called a NOD, Notice of                       13   resigned as the head of Veterans Benefits Administration. He
14   Disagreement -- to a BVA decision within the agency. That is a         14   was the under secretary, the number two position in the VA.
15   period of almost, approximately, four years.                           15            (Videotape played in open court.)
16         35 percent of the decisions of the BVA are remands to            16            MR. ERSPAMER: We are going to call a number of
17   start all over again at the regional office and, in fact,              17   adjudication witness. The first witness will be Ronald Abrams,
18   27 percent get remanded a second time. This is this hamster            18   who is currently the Joint Director of the National Veterans
19   wheel phenomenon we are going to explain to the Court in our           19   Legal Services Project in Washington, D.C. This man is very
20   testimony.                                                             20   unusual and unique in the sense that he had worked at the VA
21         The average time from a NOD to a resolution after a              21   regional offices. He worked at the VA's central office. He
22   remand, when it goes back down to the regional office, believe         22   did quality reviews. He has done training. He helped -- he
23   it or not is 5.36 years. Five-plus years.                              23   actually wrote, with Barton Stichman, the Veterans Benefits
24         And we also received some data about how many                    24   Manual that's used by all lawyers who practice before the Court
25   veterans die while their claims are pending. This is a serious         25   and before the board in regional offices.


                                                                       37                                                                          39




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    problem.                                                               1             Before joining NVLSP in 1989, he conducted over 200
2          One example. 526 veterans died in the last six                   2    training sessions for veteran service officers of major
3    months just waiting for the de novo review by a decision review        3    organizations, such as VFW, Amvets, Military Order of the
4    officer at the VA before the appeal handles.                           4    Purple Heart, and state veterans organizations.
5          And, finally, a revelation that veterans who request             5             He has also handled veteran's claims,
6    a hearing at the Board of Veterans Appeals must wait an average        6    service-connected death and disability compensation claims.
7    of 455 days to get a very short hearing before the board.              7             Mr. Abrams will testify about systemic problems in
8          There was a Rand Corporation study that we will                  8    the VA adjudication system, including delays, the impact of the
9    introduce into evidence, your Honor, Exhibit 1191. It shows            9    incentive compensation system, the results of his recent
10   that 31 percent of OIF/OEF soldiers have or will have PTSD or          10   quality reviews of VA regional offices and the improper
11   major depression, and 320,000 will have traumatic brain injury,        11   directives issued by the VA's Central Office in Washington D.C.
12   300,000 will have PTSD; 620,000 people.                                12            William Fox, the former dean of the Catholic
13         Despite these numbers, the VA testified in the                   13   University, Columbus School of Law, who has taught
14   depositions, the top officials, they have no contingency plan          14   administrative law for over 30 years and written the only case
15   for the end of the war. They only look ahead one year in the           15   law look on the law of veterans benefits and, also, authored
16   budget cycle.                                                          16   the book The Unfinished Struggle to Reconcile Speed and Justice
17         This report by Rand Corporation also noted the                   17   During Intra-Agency Review about the BVA will also testify. He
18   existence of critical gaps in the health care delivery system,         18   will testify about the VA's failure to provide adequate
19   exactly what we have been telling the Court all along.                 19   procedural protections to veteran claimants, the impact of
20         The Court faces an agency that is in denial and an               20   these failures on the particularly vulnerable veterans
21   health care system and an adjudication system that are broken          21   population, and practical solutions to remedy these problems.
22   down and are in crisis.                                                22            Don Hubbard is actually also a little unique, will
23         In this trial the plaintiffs will first present                  23   then testify about problems in VA regional offices. He is
24   testimony regarding the systemic problems in the VA                    24   currently a National Service Officer with the Military Order of
25   adjudication system that the Court addressed in the motion to          25   the Purple Heart. He has worked in various VA regional offices


                                                                       38                                                                          40
                              4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    over the years in his prior life, and he also spends three to          1    because they -- VA, as Mr. González explained, put "not
2    four weeks each year working at the Military Order of the              2    available" despite the testimony of their own witnesses that
3    Purple Heart office at the Board of Veterans Appeals. So he            3    they were available. So we have a little gap there, but we had
4    has both regional office and BVA experience.                           4    to reconstruct that number.
5          Prior to becoming a National Service Officer for the             5          The VA -- as you can see from this chart, the purpose
6    Military Order of the Purple Heart, he was a claims examiner in        6    of this is really to lay out the times for PTSD claimants.
7    the Chicago regional office and worked at the VBA Central              7          The first process, of course, is at the regional
8    Office in Washington D.C. and then worked as an adjudication           8    office. The claim is filed. You get a regional office
9    manager for 17 years first in the Salt Lake City regional              9    decision. The VA says the average claim takes 189.4 days to
10   office and then in the Buffalo, New York regional office.              10   decide, and they say PTSD data is not available.
11         He will testify regarding the adjudication process on            11         But the testimony of the witnesses and our witnesses
12   the ground at the regional offices and at the BVA, the delays          12   will be that PTSD claims take a lot longer. It takes about a
13   impacting these processes and advice he gives veterans along           13   year, if you have to go to the outside agency for stressor
14   the way.                                                               14   verification. According to the very recent report of the GAO,
15         He also will be followed by Casey Matusak, who is                15   it takes about a year just to get those records. We are
16   also a Veterans Service Officer, who retired from the VA after         16   estimating a period of about 554 days in the regional office.
17   30 years administering and managing multiple aspects of the            17         Then with respect to the VA's claim of 189.4 days,
18   compensation and pension program.                                      18   Mr. Abrams will talk about how the numbers on regional office
19         He has worked as a National Service Officer in                   19   claim processing times are being fudged. It's been going on
20   Winston-Salem, the second largest office in the Compensation           20   for years. Those numbers are not real.
21   and Pension Service Program, responsible for -- he is also             21         There is a kind of a complicated way that the VA
22   responsible for national training. He conducts site visits at          22   generates work credits so they get higher incentive
23   regional offices. And he will note some of the unique problems         23   compensation by churning the cases. They do this in a number
24   with respect to PTSD claims at regional offices. He has                24   of ways, but the main way is by prematurely denying the claim.
25   experience with those.                                                 25         In a PTSD claim you have certain development steps.


                                                                       41                                                                          43




                              4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1          Then we will also call the witnesses -- the adverse              1    You have got to get the service records, the medical records,
2    witnesses we talked about this morning from the VA.                    2    the stressor verification. Certain things you have to do.
3          Then we also have Mr. Rick Weidman, who will testify             3          Well, what do they do? They get one thing, deny the
4    mainly on budget issues, how VA spends the money and how VA            4    claim. The claim -- then the veteran submits more information
5    doesn't spend the money, and how they use their resources and          5    or evidence. They reopen the claim. They get each work
6    some of the issues that came up at the injunction hearing.             6    credit.
7          What are the issues about the systemic delay? We are             7          They churn these claims through and through and
8    quite mindful of the Court's admonition in the motion to               8    through. The 189 days that they say for a claim is not a real
9    dismiss order not to talk about individual cases. We are not           9    number, and you will hear testimony about that.
10   talking about individual cases in this trial. We are talking           10         And right now the evidence will show that over
11   about systemic problems in the VA.                                     11   100,000 claims have been pending more than 180 days, even
12         Despite the passage of seven years from the -- this              12   according to the VA. More than 100,000 claims pending with the
13   huge VA claims processing task force report in 2001, which is          13   regional offices. We have a graph showing the number of cases
14   Exhibit 374, which found horrible problems with the VA                 14   pending.
15   processing of claims and unconscionable delays, this -- this           15         Your Honor, if we can bring that up, I think it's G.
16   claims processing task force was headed by Admirable Cooper            16   We are going to leave this one up because I'm going to come
17   before he joined the VBA. And he testified at his deposition           17   back to this, your Honor.
18   we have the same problems now that we had back then. They              18         (Document displayed)
19   haven't cured any of them. In fact, most of them are worse.            19         This is a graph prepared from VA morning reports
20         The most pressing problem in the system and the one              20   which show the number of claims.
21   we are going to emphasize to the Court as part of our case is          21         And, actually, your Honor, it's kind of ironic. A
22   the systemic delay through the adjudication process. The time          22   lot of their exhibits that we saw for the first time today show
23   delays are staggering.                                                 23   the same trend. Huge increase in the number of claims in
24         In almost all cases we rely on numbers furnished by              24   recent years. You can look at it. It starts a little bit
25   the VA. We do have this gap on regional office PTSD times              25   above 450,000 in 2003. And as of April 12, 2008, over 650,000


                                                                       42                                                                          44
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    claims.                                                                1    regional offices, but we do have error rate data from the
2            There are 900,000 troops over in Iraq and Afghanistan          2    appeal process starting with the Notice of Disagreement.
3    that have yet to return. 900,000. And we know from the random          3           (Document displayed)
4    report that a lot of them are going to have PTSD or traumatic          4           This is one of the most important pieces of evidence,
5    brain injury or both.                                                  5    I believe, in this trial. We calculated a cumulative
6            Let's go back to the appeal time lines. The only               6    adjudication error rate for cases that are appealed.
7    numbers that you see on this chart that are real are the ones          7           For every 1,000 NODs that are filed, Notices of
8    starting with the Notice of Disagreement. These are numbers            8    Disagreement, 33 percent -- one third -- are reversed in the de
9    that are reflected in the file. They can't really fudge these          9    novo review process at the regional office.
10   numbers.                                                               10          Of the remaining cases 57.2 percent are either
11           The Notice of Disagreement. Just take a look at                11   reversed or remanded by the Board of Veterans Appeals.
12   these delays.                                                          12          And for the cases that go to the Court of Appeals for
13           The next stage is the VA prepares a short summary of           13   veterans claims, 63.7 percent of those remaining cases are
14   the facts and law called a Statement of the Case, an SOC. 221          14   reversed or remanded.
15   days for the VA to do that. Most of it is canned. It comes             15          And then of those that get to the Federal Circuit
16   from a form.                                                           16   16 percent of the remaining cases are reversed or remanded.
17           It takes a veteran in a PTSD case 46 days to get his           17          If you add those error rates up, you get 91.2 percent
18   Form 9 appealed. Specifies the errors of fact and law in the           18   of the claims that are -- receive a Notice of Disagreement are
19   regional offices decision. That's the only time on this chart          19   found to be flawed. And many, many, many of them are because
20   that you will see where the veteran has to do something, 46            20   of the VA made mistakes at the regional office level. That is
21   days.                                                                  21   the most common reason for a remand. The cases cycle through.
22           From the filing of that substantive appeal on Form 9           22   They cycle through. The veterans often give up, we will
23   to the certification of the record to the BVA takes an average         23   present testimony to that effect, and a lot of the veterans
24   of 625.2 days. This comes from the VA interrogatory answers.           24   die.
25   Can you imagine that? Just to prepare and certify the record.          25          The third major adjudication issue I alluded to


                                                                       45                                                                          47




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    And, in fact, it's even higher for the veterans that do not            1    briefly is what we would call the corrupt VA incentive
2    elect de novo review. That's an average number. We will get            2    compensation system that pits the self interest of the
3    it in testimony and explain that to the Court.                         3    adjudicators against the veterans. They are more interested in
4            And then from the certification to the BVA, to the             4    getting money, churning the claims through than they are in
5    BVA decision -- this is still in the agency by the way, still          5    deciding them correctly.
6    at the VA -- another 226.3 days.                                       6           And in PTSD claims, which take longer to develop, the
7            As I mentioned, many cases are remanded. There is a            7    pressure on the adjudicators to produce is extremely high and,
8    little arrow that goes down.                                           8    yet, they have a claim that takes a lot longer to do. How can
9            We are now at day 2,038 since the claim is filed.              9    they do it correctly with this pressure?
10   The claims are remanded either to the appeals management               10          There is a very interesting survey done by the Center
11   centers or the regional offices. A lot of them cycle back to           11   for Naval Analysis, CNA, VA rating personnel, and it showed
12   the VA, and you see another 563.9 days to come back the second         12   that 70 percent of the raters felt that speed was being
13   time and another 226.3 days to be redecided by the BVA                 13   emphasized to such a degree that it compromised accuracy; and
14   decision.                                                              14   only 10 percent felt the other way, that it -- accuracy is more
15           And even with the second BVA decision -- we could              15   important than speed.
16   extend this chart out another couple feet because 27 percent of        16          Mr. Abrams will describe this kind of complicated
17   the BVA cases are remanded yet another time. So there is a             17   work credit system where the offices get work credits, and
18   third regional office decision regional office in over a               18   there are bonuses, and the managers get credits based upon how
19   quarter of the cases and this whole cycle gets repeated.               19   many claims they produce primarily. That's the primary factor
20           These claims illustrated by the Collaro versus West            20   in their bonuses and in their ascension in the VA system to
21   case that we cited in the complaint and the briefs, the PTSD           21   higher positions.
22   cases can -- claims can often take 12, 13, 14 years before they        22          This issue has been going on for many years, but it
23   are done, and we believe that's a violation of due process.            23   is one of the factors that leads to the premature denials that
24           The second adjudication issue is the high error                24   I mentioned earlier. You take a quick work credit. The
25   rates, your Honor. We don't have error rates data from the             25   veteran goes away. You have earned your work credit. You only


                                                                       46                                                                          48
                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    do part of your job, then you do another part of your job, and         1    anything. You can't subpoena your treating physician at the
2    you churn these cases. In the complaint we also talked about           2    VHA for your disability hearing. You can't subpoena and cross
3    problems with the incentive compensation system that are of the        3    examine the medical examiner and the compensation and pension
4    highest degree of severity, and that was some of the VA                4    service exam so you can say, "Look, did you only spend five
5    adjudicators have been indicted for tampering with the evidence        5    minutes with me or ten minutes with me? Did you not even
6    in the files, by destroying medical reports, putting them              6    review my file?" You can't get any discovery about what went
7    through a shredding machine, and then remanding the case back          7    on in your file. Was it churned? What happened?
8    to the regional office because there was no medical exam done.         8          You can't subpoena the names of people that you
9    This is an easy way to generate a remand credit, which was             9    served with who are witnesses to a traumatic event, like, for
10   quite -- for the lawyers of the Board of Veterans Appeals.             10   example, in Iraq when an IED went off. You can't find out
11         Now, we have to concede to the Court we have not                 11   where these people are to call them or get statements because
12   found systemic evidence in the limited discovery of this               12   the VA won't give it to you.
13   problem. So our evidence will be, with respect to the                  13         Finally, I'm going to briefly cover the evidence on
14   destruction, that this is a factor in the analysis of the              14   the health care issues. We did cover quite a bit of this at
15   incentive compensation system; that people are driven to such a        15   the hearing and you heard testimony.
16   degree that they are willing to commit criminal acts to try to         16         You heard testimony from Dr. Cross, as I mentioned,
17   satisfy the -- in effect, the quotas that they are given for           17   about the world class health care system and the touting the
18   production in cases.                                                   18   new mental health care initiatives.
19         I think it's pretty telling, your Honor, that                    19         I just have to tell the Court, the discovery that we
20   attorneys at the BVA, two attorneys, were indicted and                 20   have conducted in the last few weeks has shown that the story
21   convicted of felonies in this area.                                    21   you were told is really a facade and that the same officials
22         We'll also talk about a fourth adjudication issue,               22   who testified before this Court were secretly acknowledging
23   your Honor. This is what I explained to you when you asked me,         23   that serious problems existed in the delivery of mental health
24   "What relief do you want," at one of the hearings in March.            24   care systems and the suicide problem was, indeed, out of
25   That is, extra judicial influence in the claims decisions by           25   control.


                                                                       49                                                                          51




                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    the VA's central office and issuance of directions --                  1          A key indicator of the true attitude of the VA on the
2    directives that are inconsistent with statutes and regulations.        2    suicide problem is the sacking of Dr. Frances Murphy for
3          This happens all the time. It's been going on for                3    speaking out about the suicide problem. Dr. Murphy, who was
4    many, many years. Instead of issuing a regulation, or amending         4    quoted in 2006 as saying:
5    an existing regulation, the VA sent something called a FAST            5         "Mental health and standing abuse care are not
6    letter, instructions to all the regional offices.                      6       available at some VA facilities and even where
7          The central office has no role in the adjudication,              7       available, waiting lists render that care virtually
8    no direct role in the adjudication of the claim. The regional          8       inaccessible."
9    office is like the district court, is the analogy.                     9          What happened? They called her into the office of
10         What they have been doing is they send the directives            10   her boss, head of the VHA, and he fired her. She tried to get
11   like -- a good example is this extraordinary awards procedure.         11   a job, another job at the VHA. They turned her down for
12   They send a directive that conflicts with -- has no basis in           12   several different jobs and they told her, "Here is an early
13   law and it affects -- it, in effect, dictates in many cases the        13   retirement package." Pretty gripping testimony. We will
14   result of the case.                                                    14   present that, a segment of that by video.
15         They detected a trend. Oh, we have too many PTSD                 15         And the -- this is the person who actually drafted
16   claims granted, for example, in the Denver regional office.            16   the VA's mental health care strategic plan. I'm referring to
17   They send out instructions to the regional office and they send        17   Frances Murphy. And shortly after she issued this mental
18   people there. "Look, you are granting too many PTSD claims."           18   health care strategic plan, that she was fired.
19   That came up in the testimony of the head -- the Under                 19         We also have testimony about conditions on the ground
20   Secretary for the VBA, Admirable Cooper.                               20   in the VA medical centers. This is what the VA's own
21         And so we have -- finally, we have in the                        21   witnesses -- witness referred to as a tsunami. Dr. Marcus
22   adjudication side the statutory defects. I talked about that           22   Nemuth, the Chief of the Emergency Medical Psychiatric Services
23   in the complaint, but that's the right to -- the right to              23   in the Puget Sound VA Medical Center, treats veterans with
24   counsel is restricted at the regional office.                          24   mental health issues every day, painted a markedly contrasting
25         You can't hire a lawyer -- you can't pay him                     25   view of the VA mental health care system.


                                                                       50                                                                          52
                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1          In his own words, Dr. Nemuth depicted the situation              1    to do so.
2    on the ground as a, quote, tsunami, unquote, as facilities are         2            Rather, the only monitoring is based upon a 10-year
3    being inundated with veterans that have serious mental health          3    old system that was developed before the wars in Afghanistan
4    care problems.                                                         4    and Iraq. It's business as usual at the VA. Nothing has
5          Dr. Nemuth also praised Dr. Murphy for speaking out              5    really changed.
6    about the lack of capacity to serve returning veterans.                6            A recent study by Dr. Rosenheck found that the number
7          The evidence will also show that the VA has failed to            7    of PTSD diagnoses is climbing at a steady rate, yet, at the
8    implement key elements of the mental health care strategic plan        8    same time the number of specialized PTSD and mental health care
9    that was described to you by VA witnesses in March.                    9    appointments is declining. He described this as a cause for
10         Again, it's appearance versus reality. A plan is                 10   concern.
11   meaningless if it's not implemented, if there are no mechanisms        11           And in Mr. Feeley's own words, this is the VA's
12   to make sure that the medical centers are following the plan.          12   witness, here is what he said:
13         Ironically, the defendants now rely on Dr. Murphy's              13         "This is a situation in which honest people are
14   mental health care strategic plan in their defense of the case.        14      trying to do the right thing, but processes are
15         The evidence will show that the mental health care               15      breaking down."
16   plan is deficient in several important respects and that               16           That's their own witness.
17   critical elements of the plan have either not been implemented         17            In the end the numbers do not lie. The rising --
18   at all or that no systems are in place to monitor compliance           18   the catastrophic number of suicides, the -- the incredibly high
19   with those parts that have been implemented.                           19   rate of attempted suicides just in the VA's own facilities.
20         You will hear testimony from Dr. Maris, Dr. Ronald               20   This is a serious, serious problem. 126 suicides a week, 1,000
21   Maris, a highly respected expert with over 40 years experience         21   attempts, 2,000 other patients identified at high risk for
22   in suicidology and epidemiology. He will testify that the              22   suicide.
23   program in the mental health care strategic plan and the               23           Yet, the VA is focusing their defense, and you see it
24   implementation memorandum by Mr. Feeley are not effective              24   in their internal documents, on trying to discredit the
25   programs to prevent suicide.                                           25   messengers in waging a public relations battle. All their


                                                                       53                                                                          55




                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1          He will also testify that even if the mental health              1    public relations people are all over this, this issue.
2    care plan were sufficient, the VA depends far too much on              2            I will close just by saying our veterans deserve
3    Community Based Outpatient Clinics to deliver most of the care,        3    more.
4    facilities which lack emergency rooms and lack mental health           4            Thank you.
5    care professionals.                                                    5            MR. LEPLEY: Do you want to take a break, your Honor?
6          It is these deficiencies that explain the rising tide            6            THE COURT: Are you all right?
7    and the troubling statistics that the VA -- in internal emails         7          (Discussion held off the record.)
8    they use the word "Shh." We don't want anyone to know about.           8                   OPENING STATEMENT
9    And they have been all confirmed by third-party studies in the         9            MR. LEPLEY: May it please the Court.
10   Work of the VA's own epidemiologist, Dr. Han Kang.                     10           We have heard again some pretty dramatic allegations
11         The Feeley memorandum -- implementation memorandum               11   of failure, about the collapse of the benefits claims
12   was issued a mere few weeks after the -- a scathing report was         12   processing system, of turning away veterans for medical care,
13   delivered to the VA by the VA's own Inspector General that             13   but, your Honor, the evidence you have heard thus far doesn't
14   highlighted the VA's failure to implement policies respecting          14   support that and the evidence you will hear today will show
15   suicide. The evidence will show that the Feeley memo did               15   that emphatically is not the case.
16   nothing to cure the deficiencies identified by the VA's own            16           You are going to have to pay attention because some
17   Office of Inspector General.                                           17   of the representations that Mr. Erspamer made, I don't know
18         You will hear testimony -- we designated other                   18   where they came from.
19   testimony from Dr. Robert Rosenheck, a lifelong VHA employee, a        19           Mr. Nemuth didn't say what he said that he did. It's
20   faculty member at Yale University, who also serves as director         20   a cold deposition. So I'm not sure why we are arguing about
21   of the VA's National Center for Performance Evaluation of PTSD         21   this, but, obviously, post trial briefs or something is going
22   Treatment Policies. He testified that the VA is not currently          22   to have to explain this to you.
23   monitoring performance at VA medical facilities with respect to        23           But the official, if you look outside the single
24   any of the measures set forth in the Feeley memo and the mental        24   interest groups that are here as plaintiffs and the experts
25   health care strategic plan and, actually, has no current plans         25   that they have brought who are -- their careers are getting


                                                                       54                                                                          56
                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    benefits for veterans, and it's a very laudable career to have,        1    position. Defendants do not claim that VA can refuse to
2    but when you go out to the public and the general media, that's        2    provide any medical care. Of course, we are obligated by
3    not the story that you hear.                                           3    statute to provide medical care.
4            Lancet, which is the British peer reviewed medical             4            Our position is the Court doesn't have standards to
5    journal, Business Week, Time, ABC News, media -- giant media           5    dictate the speed or the scope or level of that care, that
6    outlets that don't have any love for the government, for the           6    that's been delegated by Congress to the Secretary and this
7    VA, are calling it a world class health care system, your              7    Court doesn't have any standards against which to judge that.
8    Honor, and we will submit evidence showing that that's the             8            Now, plaintiffs in their trial brief talked about the
9    case.                                                                  9    theoretical existence of programs as an empty promise. They
10           The Rand study that just came out last week,                   10   claim that the VA's -- even its policies don't really happen in
11   Mr. Erspamer complained that it was criticizing the VA. I want         11   the real world. And, again, they said that again this morning.
12   to quote from -- this is Page 291 of that report:                      12           But, your Honor, you already heard Dr. Zeiss testify
13           "Although the VA treats a more psychiatrically                 13   in the first half and she talked about what was actually being
14      troubled population, the VA appeared to have made                   14   done.
15      greater improvements in the quality of treatment over               15           The DeMuth deposition that they took of one of our
16      time than had the private sector, possibly                          16   witnesses, that's been submitted. That talks about what is
17      demonstrating the return on investment for its                      17   actually happening.
18      various quality activities. The VA's longstanding                   18           And what the record shows is that there was this 2004
19      focus on mental health performance assessment and                   19   comprehensive mental health treatment plan that created this
20      quality improvement makes it a leading model of the                 20   mental health initiative. One of the things is a huge staff
21      integrated health systems approach to quality."                     21   increase. They never mention the fact that we added 3,700
22           This is the Rand study that they just said criticized          22   positions to a total of 17,000, which is over 20 percent, a
23   the VA.                                                                23   20 percent increase in mental health positions at VA. The
24           But what I want to talk about this morning is the              24   suicide prevention coordinator, suicide hotline, you heard
25   context in which your Honor should listen to the evidence,             25   about those things in the first half of the trial.


                                                                       57                                                                          59




                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    because we think that it's particularly important and we think         1            Then new in June of 2007, less than a year ago, there
2    a lot of what you hear will be not relevant and a waste of your        2    is this new what they call a Feeley memo, by Mr. Feeley that
3    time, your Honor, frankly, and ours.                                   3    did a couple things. One is 24/7, always a mental health
4            First funding. They mentioned that -- they seemed to           4    person is on staff ready at any VA medical center. So any
5    have dropped the lump sum appropriations as unconstitutional or        5    time, day or night.
6    somehow we are acting unlawfully because we are not spending           6            Secondly, while suicidal veterans who are referred
7    specific sums.                                                         7    were always seen immediately, there is a new policy that mental
8            They didn't mention that in their trial brief last             8    health referrals of all kinds are done within a day. And there
9    week. They didn't mention it this morning. So I don't think            9    is a 14-day period for appointment. The first appointment
10   that's here.                                                           10   should be scheduled in 14 days, if it is convenient for the
11           What they have turned their argument into is, the VA           11   veteran. If the veteran says, "I'm not around for the next two
12   is not spending money in a timely manner. We are not spending          12   weeks, I'm on vacation," then it's going to be longer. But the
13   money fast enough on mental health issues. But their beef is           13   VA is committed to doing that in 14 days.
14   really with a slice of the pie that their interests get.               14           At the first hearing just a month ago you heard
15           They are going to present Mr. Weidman as an expert,            15   testimony that there wasn't any compliance numbers on that
16   they propose. And I guess we will challenge it at the time,            16   because it was so new. Now, in April you will hear that there
17   but he is a veteran lobbyist for getting the veterans more             17   is compliance data and it shows approximately an 80 percent
18   things out of Congress. And for him to -- I mean, he certainly         18   compliance rate already with this program, and VA believes it
19   is probably very good at his job doing that. For him to come           19   will go to 90 percent very soon.
20   and tell you how the VA budge should be spent is really, in our        20           So while plaintiffs talk about a 20 percent of people
21   view, sort of the fox in the henhouse.                                 21   aren't getting served, we are staffing up. There are external
22           Medical care issues. You heard a lot of testimony on           22   barriers to any large administrative agency moving. We can't
23   this in the first half of the trial, but what's not at issue --        23   do things overnight, but in less than a year we have got an 80
24   because I want to make this point. In their trial brief they           24   percent compliance with this new policy.
25   kind of create a strawman argument that isn't defendant's              25           And it's the policy that the Court has in front of


                                                                       58                                                                          60
                                  4/21/2008 Trial Transcript                                               4/21/2008 Trial Transcript


1    it. If there are individual cases where someone doesn't get            1    appropriate. Sometimes group therapy is actually better for
2    the service they desire, they can challenge that, but Section          2    the patient.
3    511 of the statute prevents this Court from hearing that claim.        3          These kind of medical decisions are not something
4           Plaintiffs have a number of claims, but primarily,              4    this Court can interject itself into, and decide, "Well, they
5    your Honor, our position is most of them are regulatory in             5    put up these five doctors, and the VA had those four doctors,
6    source or nature. For that reason Section 502 of the statute           6    and I vote for these doctors." That's not a decision the Court
7    requires that they be heard in the Federal Circuit. It's not           7    can get into.
8    that plaintiffs can't bring their claims, pretty much all of           8          The trial brief that they filed didn't mention any --
9    their claims, they are just in the wrong forum to do so.               9    too many of the non-final agency actions, but it did raise two
10          They complain about the requirement of an in-service            10   policies that they particularly complain about. And that's, as
11   stressor for PTSD, some incident in service that was the               11   Mr. Erspamer said this morning, the 2004 mental health strategy
12   catalyst, if you will, for the PTSD that they now suffer. They         12   plan; the Feeley memo that created the 14-day appointment and
13   don't think there should be one of those, but the Secretary of         13   one-day evaluation time; and also, and the 2007 memo. Those
14   the VA put out a notice and comment, adopted a regulation              14   two things, the plan and the more recent policy.
15   requiring that. So if they don't like it, they can go to the           15         And this, frankly, in our view, Your Honor, is their
16   Federal Circuit, but they shouldn't come here.                         16   high-water mark. This is as close as Plaintiffs get to
17          They spent a lot of time complaining, again, this               17   something this Court can consider. Because, indeed, it is an
18   morning about the informal appeals of medical decisions. In            18   agency-wide policy, so it isn't barred by 511; it's not
19   their opening brief in March they said that didn't even exist,         19   regulatory in nature, so it isn't barred by 502; and arguably
20   that you had no right, if you are a veteran, to challenge the          20   it's final agency action, so it gets past the sovereign
21   medical decision.                                                      21   immunity bar that would otherwise exist.
22          After we showed that, in fact, there was this whole             22         But what it's not, Your Honor, we would submit, and
23   procedural process, very informal, very fast moving, they said,        23   why this Court should not consider it, is it's neither discrete
24   okay, well, there is a process, but it still violates due              24   nor non-discretionary. And the APA limits your review to
25   process because there aren't enough procedural rights. And             25   discrete and non-discretionary matters. And the way to look at


                                                                       61                                                                          63




                                  4/21/2008 Trial Transcript                                               4/21/2008 Trial Transcript


1    they say in their papers and what they filed that they want            1    this is why is -- is 14 days wrong? Is the Court going to
2    lawyers, they want hearings, they want discovery for the               2    decide that ten days is the right figure, or seven, or three?
3    doctor's decision on how to treat a particular veteran.                3    You have no standards to judge what the appropriate time is.
4           It's not in the patient's interest to include -- to             4          It's a discretionary decision by the agency to set a
5    lawyer up this kind of situation. It will slow down the                5    14-day period. And this Court shouldn't be interjecting itself
6    process. The patient may not even know what's in his own best          6    into trying to substitute its judgment for what the medical
7    interest. Particularly the mental health issues. The medical           7    professionals and the VA have decided.
8    professional should be making that decision, not the patient's         8          Now, Mr. Erspamer just talked about the elements of
9    lawyer.                                                                9    the plan not being implemented. But we would suggest that's
10          And, you're taking doctors away from treatment.                 10   again -- now, we're not talking about the policy any more, we
11   Every time a doctor is going to a deposition or going to a             11   are not talking about the plan; we are talking about its
12   hearing, he's not helping anybody. So, for all those reasons,          12   implementation. That's individual cases, Your Honor, and that
13   this is a terrible policy.                                             13   would be barred by 511.
14          Non-final agency actions, we point out in our                   14         He's represented that Mr. Rosenheck's deposition is
15   pretrial statement, there were a number of -- number and               15   going to say that -- well, I lost my point, Your Honor. I'm
16   location of medical professionals, the hours of medical                16   just going to have to go on. I don't remember what
17   facilities are open, training programs, and medical decisions          17   Mr. Erspamer said about Rosenheck, but here's -- my statement
18   such as whether there should be individual or group therapy.           18   is I think we can show that isn't true, whatever it was.
19          We thought they had dropped this because in their               19         They also are moving somewhat more from -- you just
20   responsive pretrial brief that they filed after we filed, they         20   have to be candid, Your Honor. We're moving from facts to
21   didn't mention it, but I notice in one of the demonstratives,          21   expert testimony, now. And you have heard a number of experts.
22   they still have more individual therapy for PTSD. So, they're          22   But we would submit that their executive, of one of the
23   still pushing this. But, this is -- Dr. Zeiss has already              23   Plaintiffs, executive administrator and the professors'
24   testified, Dr. Katz has talked about how they are trying to            24   opinions on how to manage a massive federal agency really
25   reduce stigma, that they use individual therapy where it is            25   aren't going to be helpful to the Court. The taxpayers aren't


                                                                       62                                                                          64
                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    paying for the academicians to decide how veterans should be           1    have. But they're set forth in Sections 4.1 to 4.31 and some
2    treated.                                                               2    others in 38 CFR. They want to challenge the procedural
3            Turning away from health care now, and over to the             3    requirements on appeal for health care. But that's in 20.200
4    benefits claims issues, the due issues that you are going to           4    to 20.202.
5    hear more of this week, I'll quote this, and this is from              5           Limited availability of subpoenas and adjudications.
6    Plaintiffs' trial brief, because I think this is this their            6    The secretary of VA has promulgated a regulation to 20.711(a),
7    position, and this is the position we think they are wrong as a        7    that sets forth what rights they have and don't have.
8    matter of law.                                                         8           Board of -- veterans appeals hearing procedures.
9            This is from Page 28 of their trial brief (As read):           9    That's been noticed in the public register. They can challenge
10   "Due process requires that veterans possess the right to               10   those if they want, but again, this is a 502 situation where
11   request subpoenas for documents and witnesses, and to request          11   the Congress has expressly held that if you want to challenge
12   and cross-examine witnesses at hearings, at all stages of VA's         12   regulatory procedures of this incredibly complex benefits
13   adjudicatory process." At all stages of the process. That's            13   program, we want it done in a special Article 1 court that we
14   what they want.                                                        14   have created that specializes in this issue.
15           And, they even have an exhibit, which they didn't put          15          Premature denial of claims. You have heard them talk
16   up in -- one of their demonstratives, titled Violations of             16   about that this morning. Now, in your order denying the motion
17   Veterans' Civil Rights. And the first one is, the VA acts as           17   to dismiss, you said it could be final agency action, and so
18   both the Judge and the adversary in deciding claims. That              18   therefore you would consider it, but it's also under Section
19   because a rating official representing the VA makes that               19   3.103 of the regulations of Title CFR. So it still has a 502
20   decision, and there's no right to subpoena documents about             20   bar.
21   that, there's no right to present additional witnesses, there's        21          And the other point about this, Your Honor, is how do
22   no right to cross-examine that person, take his deposition,            22   you know they are premature? The only way you're going know
23   they think that violates the veterans' civil rights.                   23   that it's a premature claim is you're going to determine that
24           They want injunctive relief, they ask for declaratory          24   there was some dispositive evidence that never got into the
25   injunctive relief, they want attorneys at all stages of the            25   Record. But how do you know it's dispositive, unless you go


                                                                       65                                                                          67




                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    process. And frankly, Your Honor, not only VA, but HHS, with           1    and look at the final decision and determine it's wrong? That
2    its Medicare and Medicaid program, the Social Security                 2    is an individual claim issue, Your Honor, that 511 says should
3    Administration, Energy which runs the Radiation Exposure               3    not be in the federal courts.
4    Compensation Act benefits program, Agriculture has farm                4           The key point here is the statute afforded the
5    assistance programs, Interior has Native American assistance           5    Secretary of the VA discretion to promulgate regulations to
6    programs, HUD has housing assistance programs. Labor has black         6    implement this massive program. And he has done so. But the
7    lung.                                                                  7    statute isn't unconstitutional, which we acknowledge that the
8            Every one of those federal benefits programs has               8    Court has held, you can find the statute unconstitutional, you
9    decisions made by some sort of employee of the agency, and             9    have jurisdiction for that, but it's not the problem because it
10   there are not trial type of procedures associated with that.           10   doesn't set these parameters. The regulations do. And the
11   If there were, the entire benefits claims of the Federal               11   regulations can only be challenged in the Federal Circuit.
12   Government would just grind to a halt immediately.                     12          Now, turning to claims processing times, the waiting
13           In their complaint and pleadings, Plaintiffs are               13   period that the Plaintiffs made a lot of, and that's what these
14   relatively vague about their claims. And we asked them last            14   go to (Indicating), there are two issues, really. The average
15   fall in the context of evidence preservation issues, you know,         15   claims processing time for that first decision, and then the
16   what exactly are you looking at? And they wouldn't tell us.            16   appeal times, and the wait that you might have -- that you have
17   And we asked in writing, and they wouldn't tell us.                    17   on appeal.
18           And the Court has accepted in its order denying the            18          Taking first the average claims proceeding time, the
19   motion to dismiss, saying you are to take their claims and they        19   VA has adopted a 125-day strategic goal, based on the
20   are broad enough on face value to accept them, and that's              20   requirements of the statute, judicial precedent, and
21   correct. But now that we have their itemized alleged illegal           21   regulations. The actual average is 180-185 days. And you will
22   practices, and -- we see that most of them are regulatory in           22   hear testimony about that coming up, about 60 days over the
23   nature.                                                                23   strategic goal.
24           They want to challenge the rating schedules, and how           24          But what it isn't, and what they say in the pretrial
25   we actually determine what degree of disability a veteran would        25   brief, they say it's Deputy Secretary Cooper, in his


                                                                       66                                                                          68
                                  4/21/2008 Trial Transcript                                              4/21/2008 Trial Transcript


1    deposition, said 125 days was reasonable. But, you know, I             1    Administration, where you determine whether the person can work
2    couldn't believe that, so I went back and read those two pages         2    any more, here, we have to determine whether there's service
3    of the deposition, and I would commend them to your Court --           3    connection. Whether the disease or condition the veteran now
4    the Court, Your Honor. Deputy Cooper was asked by                      4    has is somehow related to something that happened when they
5    Mr. Erspamer, "Is 120 days reasonable?"                                5    were in service.
6             Mr. Cooper corrected him, said it was 125 days. So            6          Secondly, you have to determine the degree of
7    Mr. Erspamer tried again, he said, "So 125 days is a reasonable        7    disability. Because compensation depends on how disabled you
8    average?"                                                              8    are. So, are you 20 percent, 60 percent, 90 percent? VA has
9             Mr. Cooper corrected him again. He said "125 days is          9    to come up with that number. So that's another level of
10   a reasonable strategic goal for the VA."                               10   complexity to all these cases that isn't a case in most of the
11            And guess what? They never mention 180 days anywhere          11   federal benefits programs.
12   in anywhere in those two pages that the Plaintiff cite. So,            12         Third, there's a huge increase of claims recently.
13   what they say in their pretrial brief is just not supported by         13   The evidence is going to show that there's about 838,000 claims
14   the Record.                                                            14   a year right now. That's up 25 percent in the last six years.
15            VA obviously only has control over its own                    15   A huge increase. And, important when you look at the remand
16   regulations. It can't do anything with Federal Circuit                 16   statistics, every time -- these aren't single-issue cases. The
17   judicial precedent or the statute. But, in our trial brief and         17   average case has three separate issues, three different
18   our pretrial statement, we pointed out seven specific                  18   conditions or diseases the veteran says may contribute to his
19   regulations that affect the minimum times to allow veterans            19   disability. And some may be service-connected, some aren't.
20   every opportunity to challenge the findings or decisions by VA.        20   The ones that are not service-connected, you will have to
21            Plaintiffs, in their responsive trial brief, never            21   figure out how much of his disability is related to this
22   mention those, because they know there's just nothing you can          22   condition, and how much is related to the condition that isn't
23   say. If it's a regulatory nature, it doesn't belong in this            23   service-connected, because the disability ranking varies.
24   court.                                                                 24         Some cases -- actually, 20 percent of the cases have
25            But there are other complicating factors that make            25   over seven different issues in them. So, these aren't just


                                                                       69                                                                          71




                                  4/21/2008 Trial Transcript                                              4/21/2008 Trial Transcript


1    the length of time as long as it is, and we certainly                  1    simple one-issue cases. And if we remand a case, it's because
2    acknowledge it's longer than we would like it. First, there's          2    one issue is wrong. If we get six issues right, and we get one
3    the open record issue. Unlike most adjudicatory proceedings,           3    issue wrong, it's a remand. So when you look at these
4    the veterans can submit evidence all the way through the               4    statistics of theirs, you have to understand that's not how
5    process. Even when their case is on appeal, they can say,              5    many mistakes we made per issue. That's how many -- that's
6    "Well, I had this new medical exam, and I want you to consider         6    whether there's anything wrong in the case.
7    it," and we have to do that.                                           7          So, what's VA doing? You will hear testimony, Your
8             And, and that -- what unfortunately, the VA tried,            8    Honor, that we have increased the staff for this claims
9    they promulgated a regulation that said if you've got something        9    benefits processing from 7,500 to 10,600, under new authority
10   in the Board of Veterans Appeals, we will consider -- the Board        10   in 2007. We just got the authority in 2007, so we are moving
11   of Veterans Appeals will consider that new evidence, and so, so        11   up. That's a 25 percent increase in staff.
12   you don't have to have a remand, and the case will move faster.        12         Congress has realized that this is an important
13            And the Federal Circuit voided that regulation, said          13   issue, and it needs to be addressed, and more resources need to
14   no, the statute says they are entitled to a full appeal, so if         14   be afforded. And they've provided the money, and VA is using
15   you get new evidence in and the veteran doesn't want to waive          15   that money to staff up. There are effic- -- the evidence will
16   its right -- his right, you must remand back to the regional           16   show that there have been efficiencies in management that have
17   office, the VA, for consideration of that new evidence. You            17   kept the backlog relatively steady as the influx of new cases
18   must do a supplemental statement of the case.                          18   has come through.
19            And this is the Federal Circuit delimiting what the           19         And on that point, Your Honor, and I don't have it
20   VA can do, and adding time to the process. It's more                   20   here, but one of Plaintiffs' charts was this great graph. And
21   procedural rights for the veteran, but it also adds time to the        21   maybe you remember, the outline was going straight up. And in
22   process.                                                               22   their view, that was the backlog. But -- and, this is why they
23            Secondly, it is the complexity of the decision.               23   didn't give us the exhibits until last night. They have got
24   Unlike the private sector, which, you just have to determine           24   apples and oranges in there. They are adding into the chart
25   whether there's insurance coverage, or the Social Security             25   that they used non-rating claims. Rating claims are how


                                                                       70                                                                          72
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    disabled you are, and that's what this case is about. But they         1    sprung it on themselves as well as us, because there's so much
2    added in non-rating claims, which include things like burial           2    wrong with this chart. For one, it's double-counting. They
3    plot issues and pension plans.                                         3    start with a thousand people, and then they assume there's
4          So if you take those out, which have nothing to do               4    error, and it goes to 670, and they keep cutting down the
5    with the issues in this case and mental health treatment, in           5    number. But of course, that assumes that in any given case,
6    fact, the line -- and we'll submit an exhibit, I guess we have         6    there could never be more than one remand. And they already
7    submitted an exhibit, one of our 17, that shows that it's flat.        7    talked about churning and hamster wheels, and all that. So
8          I said earlier, Michael Walcoff, who is the Deputy               8    they know that isn't their position.
9    Under Secretary of Benefits, to explain these programs and VA's        9          But what about a case that got to here, and it came
10   efforts; and then Lily Fetzer, who is a regional office                10   back, and it went back up? You couldn't keep reducing the
11   director, may explain how these programs work in practice.             11   number by an absolute number. That's -- it's called pyramiding
12   She's almost a rebuttal witness for us, because we think the           12   statistics. It's one of the classic ways to lie with
13   policies are what are at issue in this case, Your Honor, but           13   statistics. And we will put somebody up to say this much
14   Plaintiffs keep making these allegations that's really aren't          14   better than I can, Your Honor, but it's truly remarkable that
15   being effectuated and nothing's happening on the ground, and if        15   they submitted it.
16   they do put in the evidence like that, we will present evidence        16         The other thing it doesn't show is nine-tenths of the
17   that it is indeed happening on the ground, by somebody who             17   people who get a decision are happy with it. They never even
18   knows that, and has experience with it.                                18   file the notice of disagreement.
19         Let me turn to the appeals processing times now. Get             19         The other thing, the timeline, just briefly on this,
20   away from the initial decision, to that appeal time. This is           20   and obviously we'll have better testimony by others, but it's
21   not, as Plaintiffs suggest in their pretrial brief, about              21   such an apples-and-oranges kind of thing, because they add what
22   treatment. If you're an OEF or OIF veteran coming back, and            22   they say are the average wait times, and this one they pretty
23   you are getting the five years entitlement to health care after        23   much made up, because we didn't give them the information.
24   you leave service, when that five years expires, you don't lose        24   That's what they are complaining about. And we will have
25   your right to health treatment, even if you don't have a VBA           25   testimony about what this number should be. But, one year to


                                                                       73                                                                          75




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    compensation claim resolved. So, it's not about that.                  1    file. They get that because a veteran has one year to submit a
2          Now, the VA accuracy -- you know, of its decision                2    response, after the decision. Of course, that's the maximum
3    making, frankly, Your Honor, is laudable. And you heard just           3    time he has. It's not the average of what a veteran does. And
4    the opposite from Plaintiffs. And here's a true factual                4    it's not something VA controls. So they just stuck a year in
5    contradiction for you to resolve. Of the cases that are                5    the middle of these averages.
6    appealed, there are about -- there are -- 12 percent of the            6          And there's some other problems in the chart, but I
7    veterans are dissatisfied with their initial decision. And, of         7    just wanted to show the Court that it sounds very good, and
8    the 4 percent that are -- and then 4 percent actually follow           8    it's very glossy, but there are a lot of fundamental problems
9    through on the appeal. The other 8 are either satisfied, or            9    with the Plaintiffs' position. And Edna McDonald is our
10   for whatever, don't continue.                                          10   witness, and she will testify about these issues, the quality
11         Of the 4 percent that goes to the BVA, 50 percent are            11   and the accuracy.
12   remanded. 25 percent are just paid out, which you can consider         12         Now, let me take Plaintiffs' best case, that the 4
13   an error by the local -- by the regional office, and 25 percent        13   percent that are appealed are so slow that it violates due
14   they are upheld. And 50 percent are remanded. But of those,            14   process. We have five reasons why that wouldn't be true that
15   half are based on new evidence. Evidence the regional office           15   I've mentioned: The open record; the complexity of decision;
16   never had, and couldn't have done anything with because they           16   the increase in claims; the multiple issues; and the fact that
17   didn't know it existed.                                                17   it's a much older population, the Vietnam era vets are now
18         The other half are based on what at least the Board              18   seeking claims, which really hasn't been true.
19   of Veterans Appeals would say is an error. And we will assume          19         But there's more, Your Honor. First of all, these
20   that they're right. So, of that 4 percent, only 2 percent come         20   are all -- the timing is affected by remands. The Court of
21   back. And of those, only one half of that is really an error           21   Appeals for veterans claims is precedential. It issues the
22   by the regional office. So it's somewhere between 1 and 2              22   order, and the Board of Veterans Appeals and the rest of the VA
23   percent is the error rate. Now, they come up with this                 23   has to follow what it says. And you will hear testimony that
24   91 percent.                                                            24   they can issue extraordinary writs, and that they issue
25         And I wanted this up here, because I think they                  25   decisions where they say, well, the notice requirements are X,


                                                                       74                                                                          76
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    and we have only been doing Y thus far, and so we have to --           1          Now, past the timelines, let's go to other unlawful
2    the board has to remand a class of claims to comply with this          2    practices. Plaintiffs complain about the procedures for filing
3    new judicial precedent. Claims that are in the pipeline get            3    a disability claim are too complex, and there's too long of an
4    remanded. Obviously, that would increase their wait times,             4    application form. But, Your Honor, they are covered by Section
5    because for no fault of the veteran, and frankly, from no fault        5    3.103, they're regulatory in nature, and again, they are barred
6    of the VA, the change -- the requirements have changed, and the        6    by the 502. They complain about destruction of records. And
7    case has to go back down.                                              7    we are going to have -- we brought -- we're bringing out
8          Steven Keller, the Senior Deputy Vice Chairman of the            8    someone from the Inspector General's office, Patrick
9    Board of Appeals was going to testify to this, but now that            9    MacCormack, to testify that if this was happening, they'd take
10   Your Honor has stated that Mr. Terry has to appear, I'm not            10   it very seriously, but it's not happening.
11   sure if we might bring in the same information through him.            11         And, Mr. Erspamer kind of conceded that, yeah, they
12         What slows down, then, Your Honor, the process is the            12   only have an incident from the early 'nineties. But it must be
13   procedural protections afforded to the veterans. The Disabled          13   so serious that it somehow requires -- I think it shows the
14   American Veterans versus VA case, which is a 2003 Federal              14   VA's doing what it's supposed to do. That of thousands and
15   Circuit case, is where -- this is -- this is where the VA tried        15   thousands of rating officials over years and years, there's
16   to implement a position, the Board of Veterans Appeals tried to        16   only one evident -- one example where something's been gone --
17   implement the policy that it could consider new evidence               17   someone's acted unlawfully?
18   without a remand. And the Disabled Veterans case is where the          18         I mean, the IG witness will testify that there have
19   Federal Circuit said no, you have to remand.                           19   been some allegations, they have been investigated, and he will
20         And, I think in sum, this kind of shows why the                  20   tell you how those investigations turned out. But the point
21   Congress insisted on exclusive jurisdiction in the Federal             21   is, there's no reason for injunctive relief by the Court,
22   Circuit. I mean, is the Court going to decide there's too much         22   because there's really not a problem.
23   notice time, or there's too much time to respond at each level,        23         The incentive compensation program. You have heard
24   or too many opportunities to submit new evidence? That the             24   the Plaintiffs complain that they think that that creates a
25   Secretary's regulations are unconstitutional in providing all          25   perverse incentive for claims examiners to just push the claim


                                                                       77                                                                          79




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    that procedure? We submit that that is the kind of complex             1    through and not decide it correctly. And, the evidence will
2    question that really needs to be decided by the specialized            2    show, we'll have a witness to testify that we look at both
3    court that the Congress has designated.                                3    quality and quantity.
4          And third, Congress has considered the issue of                  4          And frankly, I don't know why -- what else you would
5    timing. Mr. Erspamer in his opening -- not today, but before           5    want a compensation incentive program to do. If we just looked
6    the first half of the trial -- talked about the timely access          6    at quality, it wouldn't -- things would slow down. If we just
7    to care act, legislation that has been introduced in Congress          7    looked at timing, the quality question, there would be a issue
8    to actually set some deadlines, set some timelines. But you            8    about whether they're being decided correctly. We look at both
9    know what? A majority of the house and Senate hasn't agreed to         9    factors, that's appropriate for the Government to do, and we
10   this; it's not law; and the fashion that the congress is               10   think that Plaintiffs' claims are really lacking -- lack merit.
11   considering this issue is, frankly, a reason the Court should          11         Third, they talk about the FAST letters, F-A-S-T,
12   have pause before it jumps into what the legislative -- the            12   which are administrative direction to the field. And, on this,
13   political branches are looking at.                                     13   there are some factual rebuttal, and we will get into that.
14         And just last Wednesday, and it's so new that we                 14   But the simple matter is the reason the Court shouldn't spend
15   haven't even put it in our trial briefs, the VA issued a notice        15   much time with this is the challenge of whether those are
16   of proposed rule making on an expedited claims resolution. And         16   unlawful because they don't provide the veteran sufficient
17   this is the new pilot project the VA's starting, that if you           17   notice is pending in the Federal Circuit right now.
18   want your claim decided quickly, and you are a veteran, and you        18         Other Plaintiffs brought it where it belongs. The
19   promise to not take a year or not take sixty days to get stuff         19   Federal Circuit is going to issue a ruling. And, it raises an
20   back quickly, VA promises to expedite your claim through the           20   interesting question, if this Court and the Federal Circuit
21   process. So for those veterans who are in a particular need,           21   raised -- issued conflicting rulings, exactly what would
22   or have a particular interest in moving their claim faster,            22   happen. So, we think that's particularly a matter the Court
23   we're hopeful this new pilot project will allow us to do that,         23   need not address.
24   within the constraints of judicial precedent, and the statute          24         Now, the trial type procedures that -- they say the
25   that we have to follow.                                                25   statute, itself, is unconstitutional, which we concede that you


                                                                       78                                                                          80
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    have jurisdiction to consider, Your Honor. Witnesses, they             1    proposed those to Your Honor. They want you to come up with
2    want due process requirements requiring a timely and meaningful        2    them.
3    opportunity to be heard. This has never been considered a              3            But frankly, we submit that you simply don't have
4    Constitutional requirement in other federal benefits programs,         4    standards by which you are going to determine that the
5    Your Honor. Plaintiffs cite no case law that supports them.            5    Constitution requires 60 days for this, 90 days for that.
6          Subpoenas. They want subpoenas at the trial, at the              6            Plaintiffs, in their trial brief, just what they
7    initial stages. But there's already some limited discovery             7    filed last Thursday, have submitted three proposals. First,
8    available to veterans. The VA is obligated to go out and get           8    they suggest that you order Defendants to negotiate with the
9    evidence that the veterans identify. If they say, "Six years           9    Plaintiffs. They don't suggest that they have any
10   ago I saw a doctor, and I had a medical exam, and think it             10   administrative expertise, that they know anything about running
11   supports my claim," the VA has to go get that, at its expense.         11   a massive agency. And, why wouldn't we negotiate with other
12   So if a veteran has evidence that he or she can't get their own        12   organizations? What about medical professionals? What about
13   hands on, the VA will go look for it for them.                         13   Congress? It's their program. Why do Plaintiffs get to
14         And, class actions, they complain about that. But                14   represent the United States on these issues?
15   that's never been a Constitutional right, Your Honor. And then         15           The taxpayers shouldn't have to pay for what a
16   they complain about no lawyers at the initial stage. And               16   single-interest advocacy group wants to have happen. That's
17   that's sort of ironic, because they have already lost this case        17   why we have elected representatives, and that's why Congress
18   once, they had this huge trial in the 'eighties, went all the          18   designs the program. And if Congress wants to afford the
19   way to the Supreme Court, and came back down, and eventually in        19   Secretary discretion to do certain things, that's Congress's
20   the Ninth Circuit the Government won. And it was not                   20   decision to make.
21   unconstitutional for the Congress to decide that you are not           21           The second proposal they have is that you appoint a
22   entitled to legal representation and the full panoply of               22   special master. But, Your Honor, how is one person going to do
23   procedural rights at the initial stage of a VA decision.               23   a better job of administering 260,000 employees, these massive
24         Now, since then, the Veterans Judicial Reform Act has            24   complex programs, 838,000 claims a year, better than the
25   been enacted. And it changed the statute. But it liberalized           25   President's appointee -- appointees, and the professionals that


                                                                       81                                                                          83




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    the statute. It provided legal representation at some of the           1    have been hired through the years to do this work?
2    appeal levels. So if it wasn't unconstitutional when you               2            Third, they suggest that the Court just decide. But
3    couldn't get a lawyer at any stage, how can it be                      3    frankly, we would submit, Your Honor, that that's an invitation
4    unconstitutional that you can only get a lawyer at certain             4    to error.
5    stages?                                                                5            So, in sum, three points. Defendants submit as the
6          Finally, Your Honor, we'll talk about the relief that            6    Court hears the testimony, it will find that there are no
7    Plaintiffs seek, because I think, again, it sort of                    7    non-regulatory practices or policies that are unlawful or
8    characterizes why this Court shouldn't -- why the facts aren't         8    unconstitutional, and therefore Plaintiffs can bring these
9    really material here.                                                  9    challenges, but not in this court.
10         The Court has twice asked in hearings, what do they              10           Secondly, we don't think the Court has any standards
11   want. Plaintiffs have submitted several proposed orders                11   on which to decide the appropriate level of health care. You
12   stating what they seek. They want, first of all, they want you         12   have heard or you will hear testimony about the dedication of
13   to enjoin unidentified policies, because they -- you know, they        13   the VA doctors, the world-class system, and that recognition by
14   reference their complaint.                                             14   the media, so the fact that Plaintiffs and some people who have
15         They never have said, "This particular policy is                 15   been doing this their whole career like Mr. Abrams, who is, no
16   unconstitutional." And the reason they don't because we would          16   question, very knowledgeable about the VA system, just the fact
17   be able to point to this specific regulation, which is where           17   that they don't like it isn't really a basis for this Court to
18   the policy came from, and it wouldn't be in the Federal                18   make any findings of fact.
19   Circuit. They have submitted to the Court time limits with             19           And third, Your Honor, we would submit the statute
20   blanks in them, and you can fill it in, how many days the              20   doesn't violate due process, but is similar in all salient
21   Constitution requires a certain action to happen.                      21   respects to the many other enabling statutes that set up
22         Mr. Sullivan, their witness who is going to testify,             22   benefits programs for other federal agencies that don't require
23   even Mr. Erspamer have testified in front of Congress on these         23   the procedural protections that Plaintiffs would like to see.
24   subjects. And they have recommended exact timelines that -- or         24           Thank you, Your Honor.
25   dates, periods they think are appropriate. They haven't                25           THE COURT: All right. Thank you. We will take a


                                                                       82                                                                          84
                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    short recess.                                                          1    between the regional offices and the Central Office and the
2          THE CLERK: All rise.                                             2    so-called Compensation and Pension service?
3         (Recess taken from 11:15 to 11:36 a.m.)                           3    A   I'll try. The VA has 57 VA regional offices. They
4          MR. ERSPAMER: Thank you, Your Honor. The Plaintiffs              4    actually have -- well, they had 58, but the Senator from
5    would call Ronald Abrams to the stand.                                 5    Wyoming told the VA he had more cows than veterans, so they cut
6         (Witness placed under oath)                                       6    out that particular RO.
7          THE CLERK: Please be seated. Please state your                   7            And that's where original claims are filed. They're
8    name, and spell your full name for the Record.                         8    called the office of original jurisdiction. And they have
9          THE WITNESS: Ronald, R-O-N-A-L-D, B as in Boy,                   9    exclusive authority per the manual, which is now the M21-1 MR,
10   Abrams, A-B-R-A-M-S.                                                   10   to adjudicate and decide original claims.
11                   RONALD ABRAMS,                                         11   Q   What is the Compensation and Pension service?
12   called as a witness for the Plaintiff herein, having been first        12   A   Compensation and Pension is the policy wing of VA Central
13   duly sworn, was examined and testified as follows:                     13   Office. It helps create guidelines, set standards, analyze
14                   DIRECT EXAMINATION                                     14   regulations and statutes, prepare the M21-1 MR, which used to
15   BY MR. ERSPAMER:                                                       15   be the M21-1, which is the manual that governs how claims are
16   Q Good morning, Mr. Abrams.                                            16   done.
17   A Good morning.                                                        17           It helps to conduct quality checks. It deals with
18   Q Could you start out by telling us what your job is?                  18   policy issues. It helps to write regulations, statutes, manual
19   A I'm the joint executive director of the National Veterans            19   provisions. It -- it answers letters of complaint from
20   Legal Services Program, NVLSP. There are acronyms, Judge,              20   Congressmen, and there may be some other functions that I've
21   everywhere here. I'll try not to use them.                             21   just forgotten to do. But it's the intellectual wing of VA
22   Q Okay. Can you -- what is NVLSP in terms of its corporate             22   Central Office.
23   status?                                                                23   Q   Okay. And is the VA Central Office part of the Veterans
24   A Well, we are a veterans service organization, we're a law            24   Benefits Administration?
25   and advocacy group, and we are a 501(c)(3), a nonprofit.               25   A   C&P is one of the divisions in the Veterans Benefits


                                                                       85                                                                          87




                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    Q Can you describe your experiences with the VA, starting              1    Administration.
2    with your first job?                                                   2    Q   And so, you work both through the C&P service and in the
3    A Well, when I graduated from law school, admitted to the              3    regional offices?
4    bar, I obtained a job in the Philadelphia VA regional office,          4    A   Yes.
5    where I worked for a while as what would now be considered a           5    Q   And when did you leave the Veterans Administration?
6    VSR, a veterans service rep.                                           6    A   I think it was 1988.
7          After serving in that position, I was promoted to the            7    Q   Okay. And, is that the point you went to work for the
8    VA's rating board. After a period of time, I was then                  8    NVLSP?
9    transferred and promoted to VA Central Office. In Central              9    A   Yes.
10   Office, I worked for several sections of the Compensation and          10   Q   And, what do you do, just describe your career at NVLSP.
11   Pension service. We call that the C&P service. And there I             11   What have you done there?
12   was a legal consultant. I worked in their policy section,              12   A   When I was originally hired, they put me in as director of
13   helping to write proposed statutes, regulations. We helped to          13   training, and the editor of their newsletter, the Veterans
14   create the -- what was called the improved pension program.            14   Advocate, which is now a quarterly that analyzes what goes on
15         And, then I switched to several other sections in VA             15   in veterans law and gives advice to advocates on how to help
16   Compensation and Pension, including quality review, where for a        16   them win claims for veterans. It's the goal of NVLSP to help
17   while I was the temporary leader of that section. And in               17   advocates obtain benefits at the earliest possible time.
18   there, we went to various VA regional offices and checked the          18           MR. LEPLEY: Can you turn it a little so --
19   quality of their work. We also reviewed claims files that were         19           MR. ERSPAMER: I'm going to bring up an
20   sent in to Central Office.                                             20   organizational chart, which is Plaintiffs' Exhibit 1279.
21   Q Okay.                                                                21   BY MR. ERSPAMER
22   A After that, I worked for a little bit of time at the                 22   Q   Just so we understand exactly how --
23   Department of Justice for Interpol. And then I had a job offer         23   A   I'm sorry, I can't see it.
24   from NVLSP.                                                            24   Q   Can't see it?
25   Q Let me stop you there. Can you explain the relationship              25   A   And with my eyes, it's only a speculation. Maybe we have


                                                                       86                                                                          88
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    a piece of paper?                                                      1    lawyers, who will, on their own dime, without charging the
2          MR. ERSPAMER: Yeah, we do, somewhere.                            2    veteran a fee, represent the veteran through the Legion or
3          MR. WILTSIE: Your Honor, with your permission, may I             3    Purple Heart, working with NVLSP, because we're also service
4    stand and look at this?                                                4    officers for those groups. And we've placed several hundred of
5          THE COURT: Sure. Any time.                                       5    those particular cases.
6          MR. ERSPAMER: We will skip over that, come back to               6          And we have a sister program where we've -- are
7    it, for the time being.                                                7    focused on Iraq and Afghani veterans, and we are going to try
8          THE WITNESS: Should I continue with my career at                 8    and help those veterans at even an earlier time in the
9    NVLSP?                                                                 9    adjudication process. And the same group of lawyers will be
10   BY MR. ERSPAMER                                                        10   asked to get involved in that.
11   Q Let me ask you a few more questions about that. Yes, what            11   Q   Does your -- the pro bono program that you -- went through
12   was your next position at the NVLSP?                                   12   the consortium, take care of the needs of all the veterans that
13   A After several years, I was promoted to deputy director.              13   you see?
14   And then several years ago, when my good friend David                  14   A   Absolutely not. Even if we were to combine everything
15   Addlestone left and retired, I was promoted to joint executive         15   that we are doing. Lawyers are bound by how much they can do,
16   director, with my partner, Bart Stichman.                              16   properly. So, it's -- it helps, but there are so many veterans
17   Q Okay. And have you authored any books with Mr. Stichman?             17   out there, so many cases, that even if we get a thousand cases
18   A Yes. We have a treatise, the VBM, the Veterans Benefits              18   placed, there are hundreds of thousands of claims.
19   Manual, which is the only real textbook in veterans law.               19   Q   Now, do you have any role in quality review?
20         We generally take, as an organization, quite a few               20   A   Yes, I do.
21   months a year where every lawyer in our office works hard on           21   Q   Can you explain what quality review is?
22   updating the textbook. It's published by LexisNexis, and we            22   A   Well, when I worked in the VA, we would check the quality
23   have sold thousands of these books.                                    23   of the work performed in the VA regional office. The way it
24   Q And is this your book (Indicating)?                                  24   worked in the VA, and I've looked over M21-4, and I think it's
25   A Yes, it is.                                                          25   still pretty much the same, the VA would identify an end


                                                                       89                                                                          91




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    Q And were you and Mr. Stichman the editors of this book?              1    product taken, and look for the work on that end product. And
2    A Yes.                                                                 2    if it was an authorization end product, they would look at what
3    Q Have you had other publications?                                     3    authorization did, which is different than rating.
4    A Yes. We've produced self-help guides on claims, on Gulf              4          Let me explain, Judge, this is --
5    War benefits, on Agent Orange. We're very involved in the              5    Q   We will get into that later. But why don't you just
6    Agent Orange claims, because we have our Nehmer case, which is         6    explain right now --
7    the case that started the VA on its path to granting                   7    A   I'm going to get too complicated, and I don't want to.
8    compensation benefits for veterans that are exposed to Agent           8    Q   Let me stop you there.
9    Orange in Vietnam.                                                     9    A   Okay.
10         I've authored the basic training course, which is a              10   Q   Can you just explain what quality review you do currently,
11   -- a correspondence course that many service organizations like        11   and how that that relationship works?
12   Purple Heart, American Legion and others purchase for their new        12   A   Yes. We have an agreement with the American Legion that
13   workers. And we have a DVD which we recently produced which is         13   six to eight times a year, at the max, we'll go to various
14   a -- a TV show of Bart and Ron teaching veterans law to lawyers        14   regional offices where the Legion has a presence, we will
15   who want to get involved in the practice of veterans law.              15   review the claims files of Legion cases, look them over to see
16   Q Do you have any relationship currently with any -- the pro           16   if the VA adjudicated them properly.
17   bono consortium in Washington?                                         17   Q   And, do you do that personally?
18   A Yes, I'm on the board of the veterans consortium pro bono            18   A   I go on most of these.
19   program, which is made up of American Legion, DAV, the                 19   Q   Okay. And can you describe some of the cities or the
20   Paralyzed Veterans, and NVLSP. I'm also in charge of -- well,          20   regional offices you have visited in recent months?
21   in charge of, with my partner, Bart Stichman, two                      21   A   Muskogee, Reno, Chicago, Albuquerque I think we went to,
22   closely-related pro bono programs that NVLSP has just started.         22   off the top of my -- my head. I think we went to Houston, too.
23         One, we've invited law firms to help veterans through            23         The one in Muskogee sticks out, because there was an
24   the Legion and Purple Heart. And unbelievably, we have gotten          24   ice storm, and I spent four days in a Fairfield Inn, eating
25   60 major American law firms to donate the time of over 440             25   only pizza. I won't forget that.


                                                                       90                                                                          92
                                 4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    Q Okay. Do you also represent veterans at any stage of the             1    Q   How?
2    adjudication process?                                                  2              MR. ERSPAMER: Objection, vague.
3    A To keep fresh, to keep on top of things, we will take                3    MR. WILTSIE
4    some -- what I call test claims. And we will either take them          4    Q   You may answer the question.
5    at the regional office, I've submitted briefs and done hearings        5    A   Well, I would like you to explain it in a little more
6    at the Board of Veterans Appeals, and I've been on briefs              6    detail.
7    submitted to the Court of Appeals for Veterans Claims, and the         7              Do you mean, do I know how cases flow through the
8    Federal Circuit.                                                       8    adjudication system and get to Central Office, or get to the
9    Q Okay. Have you ever testified before Congress?                       9    board? Do you mean how the board works?
10   A Several occasions.                                                   10   Q   No. What I want to know is, have you ever had a
11   Q And, and has that been on veterans issues?                           11   conversation with Bradley Mayes?
12   A Yes, only on veterans issues.                                        12   A   Yes.
13   Q Okay.                                                                13   Q   When?
14         MR. ERSPAMER: Your Honor, at this time I would like              14   A   Last -- last week.
15   to tender Mr. Abrams as an expert in the VA adjudication               15   Q   About what?
16   system, including the appellate procedures.                            16   A   When we testify -- I would like to finish my answer. When
17         MR. WILTSIE: Your Honor, I request voir dire.                    17   we were testifying before Congress, we talked about the claims.
18         THE COURT: All right.                                            18             MR. ERSPAMER: Your Honor, this is -- this isn't voir
19                VOIR DIRE EXAMINATION                                     19   dire, this seems to be a cross-examination.
20   BY MR. WILTSIE:                                                        20             THE COURT: We'll see.
21   Q Mr. Abrams, I noticed in your recital you said that you              21   BY MR. WILTSIE
22   started in the Philadelphia regional office?                           22   Q   Mr. Abrams, what I want to know is, are you currently
23   A Correct.                                                             23   working day to day with members of the Veterans Benefits
24   Q Isn't it true that you were only there for two years?                24   Administration?
25   A Yes.                                                                 25   A   No.


                                                                       93                                                                          95




                                 4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    Q After that, you were in C&P?                                         1              MR. WILTSIE: We have no further questions, Your
2    A Yes.                                                                 2    Honor.
3    Q You were never, ever again an adjudicator after that time?           3              THE COURT: What is the witness going to testify to?
4    A Correct.                                                             4              MR. ERSPAMER: Your Honor, he is going to explain how
5    Q When is the last time that you helped on a veteran's claim           5    the adjudication system works, and the procedures, he's going
6    in a regional office?                                                  6    to go through issues like delay in the system, cover some of
7    A Last week.                                                           7    those topics. He's going to -- and just explain how the system
8    Q What did you do?                                                     8    works, basically.
9    A I advised service officers for Purple Heart how to deal              9              THE COURT: What amount of work did you do with
10   with an anthrax claim.                                                 10   reference to textbook?
11   Q When is the last time you actually represented a veteran             11             THE WITNESS: I am in charge of writing several of
12   before a regional office?                                              12   our chapters. I also edit, along with my partner, every
13   A That would be about a year ago.                                      13   chapter.
14   Q How often do you do that?                                            14             THE COURT: All right. Proceed.
15   A Occasionally. But I do help on a -- a regular basis. And             15             MR. ERSPAMER: Okay. Thank you, Your Honor.
16   when we do the quality checks I'm there all the time, helping          16                 DIRECT EXAMINATION RESUMED
17   right then and there.                                                  17   BY MR. ERSPAMER
18         And if you read, as you know, you have our quality               18   Q   Now, Mr. Abrams, in preparation for your testimony, did
19   checks, because copies are given to VA. On a regular basis,            19   you have a chance to review the various VA regulations and
20   the regional offices will concede error and grant the -- you           20   rules regarding PTSD?
21   know, claim there. And I consider that to be representing a            21   A   Yes.
22   veteran.                                                               22   Q   Regarding individual unemployability?
23   Q Do you have any current knowledge of the inner workings of           23   A   Yes.
24   the Veterans Benefits Administration?                                  24   Q   Regarding medical examinations?
25   A Sure.                                                                25   A   Yes.


                                                                       94                                                                          96
                                4/21/2008 Trial Transcript                                                4/21/2008 Trial Transcript


1    Q Did you also review the results of any of the audits that            1    the Purple Heart training. It was the last week in March, and
2    you did of the VA regional office decisions?                           2    the first week in April. And I asked the class, "What's your
3    A Several, yes.                                                        3    biggest problem case?" And overwhelmingly --
4    Q And did you emphasize the PTSD cases in your review?                 4          MR. WILTSIE: Objection, Your Honor. This is
5    A Yes. I looked for the error calls that we made on PTSD               5    hearsay.
6    claims.                                                                6          THE COURT: Sustained.
7    Q And pursuant to my request, did you also review the                  7    BY MR. ERSPAMER
8    deposition transcripts of Ronald Aument, Diana Rubens, Thomas          8    Q   Just give us examples.
9    Pamprim, Daniel Cooper, and Jack McCoy of the VA?                      9    A   Based on my background, PTSD is the major problem.
10   A Yes. I did. I did not study them to great detail, but I              10   Q   Is there some relationship between PTSD claims and
11   read them all.                                                         11   individual unemployability claims? Briefly.
12   Q Okay. And did you also review a number of the Deposition             12   A   In the sense that the VA has trouble with what the Court
13   Exhibits that were accompanied?                                        13   calls TDIU or what the VA calls IU claims, yes.
14   A Yes, I did.                                                          14   Q   And what are IU claims?
15   Q What, let's go through, what are the sources of -- that              15   A   They're claims for payment at the 100-percent rate when a
16   govern -- of rules governing the operation of the VA                   16   veteran has a service-connected condition or conditions that
17   adjudication system? Just list them, please.                           17   make that veteran, on an individual basis, unable to perform
18   A The rules?                                                           18   substantial gainful employment.
19   Q Yes.                                                                 19   Q   And is there some requirement for IU, that the veteran
20   A First of all, the VA runs a non-adversarial system.                  20   have a schedule rating of a certain percentage?
21   There's not supposed to be an opposing party when claims are           21   A   38 CFR 4.16(a) and (b) control TDIU claims. For 4.16(a),
22   filed.                                                                 22   you need either one 60-percent evaluation, or a combined
23            In theory, the VA is tasked to develop the evidence           23   evaluation of 70 percent, with one 40 percent evaluation.
24   necessary to fairly adjudicate the claim, and grant the                24         4.16(b) allows an extra-schedular rating of TDIU,
25   benefits that are correct to -- to whoever claims them, while          25   when a veteran has less than what is required by 4.16(a). And


                                                                       97                                                                          99




                                4/21/2008 Trial Transcript                                                4/21/2008 Trial Transcript


1    protecting the interest of the Federal Government. They are            1    again, that is rare. In all the years that I have been working
2    supposed to be impartial.                                              2    in veterans law, and it's over 30 years, I know a couple of
3    Q Let me stop you there. In your experience, is the process            3    people who have won them, but it is very, very rare.
4    at the regional offices adversarial or non-adversarial?                4    Q   Do you want to turn to the binder in front of you?
5    A In many instances, it's adversarial.                                 5    A   I've got two of them. Which one do you mean?
6    Q And what do you base that on?                                        6    Q   Well, the one that has P1275.
7    A The fact that the system is set up to create a tension               7    A   475?
8    between the needs of VA managers and claimants.                        8    Q   1275.
9             Managers are evaluated on how much work they do, how          9    A   Okay.
10   quickly they do the work, and how many people they need to do          10   Q   It's one of the first two. Second one, second one.
11   the work. The -- they -- they look at things from the point of         11         We just referred a few moments ago to the regulation
12   view of the bureaucrat. VA claimants don't want to know where          12   for individual unemployability?
13   the case is, in the process. They want to get a fair decision          13   A   Right.
14   on their claims.                                                       14         MR. WILTSIE: Excuse me, Your Honor. We are still
15            Also, there are certain types of claims that in my            15   pulling the exhibit. We were not presented with the binders.
16   background, I see evidence of bias towards types of claims.            16         THE COURT: Do you have a binder for him?
17   Not types of people, types of claims. Anything where the               17         MR. ERSPAMER: Do we have an extra binder? Let's
18   veteran has not been diagnosed in service, but is filing a             18   just give it to them. We are looking at P1275.
19   claim because of an incident in service that led to a condition        19   BY MR. ERSPAMER
20   years after service is harder to win, and you find more                20   Q   Mr. Abrams, do you have that exhibit in front of you?
21   obdurate VA workers than a veteran who suffered a gunshot wound        21   A   I do.
22   and now is claiming the residuals of that gunshot wound.               22   Q   And do you recognize it?
23   Q Can you give us a couple of examples of that type of claim           23   A   That is 4.1 -- 16.
24   that's more difficult and more adversarial?                            24   Q   The regulation on individual unemployability --
25   A Well, I was just at the American Legion training, and then           25   A   Yes.


                                                                       98                                                                         100
                                  4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    Q -- you were just referring to?                                        1    Q   Okay. Now, can you explain just basically what -- how you
2          MR. ERSPAMER: I move P1275 into evidence, Your                    2    go about proving a stressor in a PTSD case?
3    Honor.                                                                  3    A   Oh, boy. There are several kinds of PTSD claims. The
4          THE COURT: Received.                                              4    first kind is the easiest. That's where a veteran has one of
5         (Trial Exhibit 1275 received in evidence)                          5    the medals that the VA has put into its manual -- and I think
6    BY MR. ERSPAMER                                                         6    it's in its reg, I'm not sure -- that the VA will accept as
7    Q You also mentioned, Mr. Abrams, regulations regarding                 7    evidence of combat with the enemy.
8    mental disorders. Do you want to turn to Exhibit 1274 in the            8          And if a veteran who endured combat alleges a
9    binder?                                                                 9    stressor connected with that combat, the VA generally will
10   A Okay.                                                                 10   concede that the VA stressor happened, and that will be the end
11        (Request complied with by the Witness)                             11   of that. Occasionally it might not be consistent with the
12   A That's the first one?                                                 12   facts and circumstances of the veteran's service.
13   Q Yes.                                                                  13         The way I try to teach that is if a veteran says that
14   A Okay.                                                                 14   while he was in combat, green men from Mars took him on a space
15   Q Do you recognize that document?                                       15   ship and tickled him, we would have trouble arguing that that
16   A Yeah, that's the start of the regs on -- on mental                    16   was a valid stressor. But, in most cases, veterans talk about
17   disorders. And --                                                       17   being shot at, seeing people blown up, and seeing trucks blown
18   Q And turning to the second page, do you recognize 3.304?               18   up in front of them, and being in fear of their lives when they
19   A Yeah.                                                                 19   get shot at.
20   Q What is that?                                                         20   Q   What kinds of records are important to obtain in
21   A 3.304(f) is the reg that the VA in the last couple of                 21   connection with a PTSD claim?
22   years created to deal with PTSD.                                        22   A   Well, if you look on the DD-214, you are going to find a
23   Q And, can you -- you are familiar with this regulation?                23   bunch of medals if the veteran got it. Generally, when you
24   A You have to be, if you are going to help people get their             24   review a claims file, you go to the DD-214 --
25   benefits.                                                               25   Q   Let me stop you. What is a DD-214?


                                                                       101                                                                          103




                                  4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    Q And what is the significance -- first of all, explain what            1    A   That's a separation document that every veteran gets.
2    the stressor is in the connection with a PTSD claim.                    2    Q   Okay.
3    A According to the DSM-IV -- do I need to explain that?                 3    A   And on that document, they will list, let's say, a -- a
4    Q Yes, probably, yeah.                                                  4    combat infantry badge, a Purple Heart, Silver Star. And at
5    A The Diagnostic --                                                     5    that point, the VA generally does not contest that the veteran
6    Q Statistical?                                                          6    suffered a stressor.
7    A Yeah, Manual of the American Psychological Association.               7          Now, some veterans lose because instead of alleging
8    And IV would be the incarnation of that manual that the VA has          8    that their stressor happened during combat, they allege
9    accepted and put into its regs. So it is binding in the sense           9    something else. A lot of people have trouble admitting that
10   that that's what they use.                                              10   the combat scared them. We have had, in the past, a case where
11         And they define in general, in lay terms, a stressor              11   a veteran said, "Hey, I saw a young boy blow himself up in a
12   as something that would create in a person a fear of bodily             12   Saigon bar."
13   harm to themselves or others, and it would cause intense fear           13   Q   Uh-huh. Let me stop you --
14   or helplessness. So, there's a two-part test.                           14   A   He had a couple of Purple Hearts, but he didn't allege a
15   Q Now, are there special provisions for victims of sexual               15   stressor to -- to those particular Purple Hearts. And unless
16   assault?                                                                16   we are able to convince him to talk about that, and ask him to
17   A Yeah, that's a separate deal. And there's -- we -- when               17   talk to a doctor about that, the VA could deny his claim.
18   we teach sexual assault, we have like a whole hour that's               18   Q   Is there an organization that researches military records?
19   separate to that, because the problem with that is there's              19   A   Yeah.
20   rarely any evidence of a problem of -- you -- you have trouble          20   Q   What is that called?
21   documenting the sexual assault in service.                              21   A   It starts with a J. They keep changing the acronym. So,
22         So the VA allows ancillary evidence, such as job                  22   I'm just going to say it's JS-something, Joint Services,
23   transfers, drop in performance, and late statements confirming          23   whatever, and --
24   that somebody confided to somebody else that they were attacked         24   Q   Record Center?
25   or harassed.                                                            25   A   Yeah. And I think that the Marine Corps may have


                                                                       102                                                                          104
                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    something separate. They usually do.                                    1    way the VA handles a PTSD claim?
2    Q Okay. And is it important to try to get service records               2    A   Well, there's the M21-1 MR, which is still binding on the
3    on a PTSD claim?                                                        3    regional offices unless they get a variance from the
4    A It is when you can't use the service medical records,                 4    Compensation and Pension Service, or the Veterans Benefits
5    which might show that the veteran was shot, or even where a             5    Administration. But for a VA rater or a VA worker, they're
6    veteran fell and broke his leg. That might be considered a              6    pretty much bound by the M21-1 MR. It's like their bible.
7    stressor. And, if you can't do that, then you have to look for          7          MR. ERSPAMER: Your Honor, this manual is immense,
8    unit records, morning reports, buddy statements, letters home.          8    I'm sorry to say, but we have tried to excerpt the relevant
9    You're looking for some interaction with the enemy.                     9    provisions in P425.
10         One veteran came to me and said, "During World War                10   BY MR. ERSPAMER
11   II, I captured Germans."                                                11   Q   Do you have that in front of you?
12         And I said to him, you know, "That's pretty much out              12   A   420 --
13   there."                                                                 13         MR. ERSPAMER: Is that the third binder?
14         He said, "Yeah, I captured 14 of them."                           14         THE COURT: Why don't you look for it, and we will
15         And I said, "Do you have any proof of that?" And                  15   take our noon recess, until 1:30.
16   even though he had a CIB, I thought that was pretty much out            16         MR. ERSPAMER: Okay, thank you.
17   there. He still had the article in his local paper that wrote           17         THE CLERK: All rise. This Court stands in recess.
18   about it in 1945.                                                       18        (Recess taken at 12:11 p.m.)
19   Q Hmm.                                                                  19
20   A And I have that up on my wall at work. Because he was                 20
21   able to prove that.                                                     21
22   Q Okay. What other documents are -- can become important in             22
23   connection with a PTSD claim?                                           23
24   A Well, you are looking for records in service of either                24
25   combat, assuming the veteran is alleging that the stressor is           25


                                                                       105                                                                          107




                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    connected to combat, or incidents that would confirm service in         1                  PROCEEDINGS
2    a hospital during wartime. Evidence that the veteran was in a           2    April 21, 2008                        1:30 p.m.
3    car accident, things like that might be a stressor.                     3
4          The advocate's not a doctor. The doctor has to                    4          THE COURT: All right. Let's continue.
5    determine whether or not the alleged event was sufficient to be         5                 DIRECT EXAMINATION RESUMED
6    a stressor.                                                             6    BY MR. ERSPAMER:
7    Q And does the VA have a procedure for evaluation of the                7    Q. Mr. Abrams, this morning you were talking about
8    claimant, the veteran, by a doctor? On a PTSD claim?                    8    circumstances under which a particular medal might give you a
9    A Yes, it does.                                                         9    presumptive stressor verification. Is there another path
10   Q And what's that called?                                               10   that's more difficult?
11   A It's called the Clinicians' Guide.                                    11   A. Yes. When there is not objective evidence of a stressor,
12   Q And, is there something called a C&P exam, Compensation               12   but there are allegations from the veteran, the VA has to take
13   and Pension exam?                                                       13   part in a -- what could be a lengthy development process.
14   A They have a worksheet that would cover exams in the                   14   Because the process takes quite a long time sometimes the
15   Clinicians Guide, for different types of conditions, including          15   regional offices take shortcuts and they don't follow that
16   joint conditions, lung conditions, heart conditions. They try           16   through and the case gets prematurely denied.
17   to divide that up so doctors know how to do the exam.                   17   Q. Give me an example of a -- where an event might have been
18   Q Okay. Well, in addition to the --                                     18   maybe a stressor, but it was not -- did not result in a combat
19         MR. ERSPAMER: By the way, I should move Exhibit 1275              19   ribbon or something of that nature?
20   into evidence.                                                          20   A. In what I think is the Penacoss case (phonetic spelling),
21         THE COURT: Received.                                              21   which was a case that our firm took to the Court of Appeals for
22         (Trial Exhibit 1275 previously received in evidence)              22   veterans' claims, a veteran alleged a stressor saying that
23   BY MR. ERSPAMER                                                         23   his -- he was at Danang in Vietnam and the base was rocketed
24   Q Now, in addition to the statute of any regulations that we            24   and mortared and he suffered a -- a stressor as a result of
25   have seen, are there any other sources of rules that govern the         25   that and doctors linked his PTSD, which they diagnosed, to that


                                                                       106                                                                          108
                              4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    stressor. The VA and the BVA denied the claim saying that              1    follow what the Court says. In a case not too long ago the VA
2    there was no individualized proof, I think, that this veteran          2    and the board denied a veteran status as a combat veteran even
3    was hit with rocket and mortar fire. I'm giving a broad                3    though they acknowledged he fired a Howitzer and killed
4    overview here.                                                         4    hundreds of people. And the Court said that was engaging in
5          The CAVC reversed an order of the board to grant                 5    combat. When you shoot something and kill a lot of people,
6    service connection because the evidence of record showed that          6    that's combat. I don't have the name of that case.
7    the veteran's unit was at Danang and was not on top of, but            7    Q. And just without going through them in detail, there are a
8    relatively near where the rocket and mortar fire happened, and         8    lot of other sections here. For example, 1341 has a section
9    he didn't have any medals.                                             9    called "What Constitutes Credible Supporting Evidence."
10         MR. ERSPAMER: Your Honor, I want to clean up a                   10   A. Is that page?
11   housekeeping mistake from this morning. I think I moved 1275           11   Q. Page 1341, Section D?
12   into evidence twice and I meant to move 1274 the second time.          12   A. Yes, I see that.
13   So I would like to move 1274 into evidence.                            13   Q. Now, in representing veterans is it important to have
14         THE COURT: All right. Proceed.                                   14   access to and look at the manual?
15        (Trial Exhibit 1274 received in evidence)                         15   A. We teach that -- that advocates should have that and it's
16   BY MR. ERSPAMER:                                                       16   included -- we have a CD rom that goes with our textbook and it
17   Q. Mr. Abrams, we were talking this morning about the M21-1            17   includes a copy of the manual and the regs and the statute and
18   manual. Do you want to turn to Exhibit P425?                           18   the GC opinions all hypertext linked to our textbook. So,
19   A. I think I'm there. P425?                                            19   yeah, we think it's important.
20   Q. Yes. Do you recognize that as excerpts from the M21-1R              20        (Document displayed)
21   manual?                                                                21   Q. Does the manual also -- I would like to refer you to Page
22   A. I think it's the M21-1MR?                                           22   2286 of the manual, Section called Subsection B, "Evidence
23   Q. Yes, yes.                                                           23   Required to Establish Service Connection."
24   A. Yeah. I mean, I can -- I'm assuming that this is right.             24   A. When you say 2286, what page is it --
25   The VA is revising this and last week they announced that they         25   Q. The page on the bottom. Look at the pages on the bottom.


                                                                      109                                                                          111




                              4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    had the complete revision. The M21-1 is no more.                       1    A. Okay.
2          MR. ERSPAMER: I would like to move Exhibit 425 into              2          MR. WILTSIE: Mine is 1472.
3    evidence.                                                              3    BY MR. ERSPAMER:
4          THE COURT: Proceed.                                              4    Q. There are little dividers in between the sections.
5         (Trial Exhibit 425 received in evidence)                          5    A. 2286. I'm sorry. I don't see that. I go up to 2263 and
6    BY MR. ERSPAMER:                                                       6    then I come to a binder. That's 2271.
7    Q. Does this manual -- if you want to turn to it, to page              7    Q. Well, you certainly do. We will have to fix that.
8    numbered at the bottom 1335. Do you see that?                          8          It's on the screen. Do you want to look on the
9    A. 1335? Just a minute. 1335 starts at the top with                    9    screen?
10   "Notes."                                                               10   A. Sure. It's on this screen here?
11   Q. It starts -- It's Section H, Mental Disorders, right at             11   Q. Yes. We will fix that.
12   the very bottom of the page. Do you see that?                          12   A. It says:
13   A. Yes.                                                                13        "To establish SC for PTSD there must be credible
14   Q. Is that the main section that deals with PTSD in the                14      evidence to support the veteran's assertion that the
15   manual?                                                                15      stressful event occurred."
16   A. Yes, I think so.                                                    16   Q. And I want to focus on the next sentence, where it says:
17   Q. And does that contain, for example, definitions of                  17        "This does not mean that the evidence actually
18   "engaging in combat"?                                                  18      proves that the incident occurred, but that there is
19   A. I would have to look through, because they have moved               19      at least an approximate balance of positive and
20   things around, and read it. But if you can point to the                20      negative evidence that the event did occur."
21   section that you are talking --                                        21   A. Correct. That's the standard of proof that applies as a
22   Q. 1339 at the bottom of the page, "engaging in combat"?               22   basic standard in all of veterans law. Veterans get what's
23   A. Yes. I see that there.                                              23   called the benefit of the doubt when it comes to factual
24   Q. And you referred earlier --                                         24   determinations.
25   A. Now, now, understand that the manual is obligated to                25   Q. Now, with respect to the handling of veterans' PTSD


                                                                      110                                                                          112
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    claims, do you sometimes find yourself in a problem -- in sort          1    it. It goes back to the regional office and the people who
2    of a loop of sorts with respect to proving stressor and proving         2    originally denied the claim are annoyed and they assign a
3    the diagnoses and getting those to match at the same time?              3    10 percent valuation when the veteran's symptoms would warrant
4    A. It's --                                                              4    anywhere from 50 to 70 percent, 30 percent, but they would be
5    Q. Can you explain that?                                                5    more than 10.
6    A. It's a de nomic circle. Here is what happens in some                 6            As a result, the vet has to go through the appellate
7    cases, which are sad.                                                   7    process again. We have seen cases literally where a veteran in
8          A veteran goes to a private doctor or Vet Center,                 8    Boise, a real case, was so sick that he was -- he had a GAF
9    describes his symptoms, is examined by the doctor. The doctor           9    score, a Global Assessment of Functions score, assigned by a
10   accepts the veteran's assertion of a stressor at face value and         10   psychiatrist in the low 30's, which means that he is not only
11   diagnoses PTSD, and the vet is treated for a couple years for           11   mentally ill, he is dangerous. And the only thing that he was
12   PTSD.                                                                   12   doing was they let him go into a relative scrap yard and take
13         Then someone tells him that he or she should file a               13   two pieces of metal and beat the pieces of metal together.
14   claim. They file a claim and the VA sets up an exam and VA              14           I went to this office. I said, "How could you give
15   doctors in the past -- there has been a very recent change, but         15   this guy a 50 percent rating? He is worth 100 percent, either
16   it's still contradicted by manuals -- looks at the veteran's            16   by IU or by 100 percent scheduler." And they told me, "If you
17   records -- assuming they have the claims file, which they               17   don't like it, appeal." So we did and the case was won at the
18   should have, but they often don't -- and says, "I don't see any         18   Board of Veterans Appeals, but the attitude was, we didn't like
19   evidence of the stressor." And in some cases the veteran has a          19   this particular stressor. This guy we don't believe and even
20   combat infantry badge, has a Purple Heart, but the doctor               20   though we have to service connect him, we are not going to pay
21   doesn't buy it. So the doctor says, "I cannot diagnosis PTSD            21   more. So that's a typical example.
22   under the DSM4 unless there is credible evidence of a                   22   Q. Now, are there some preconditions the veteran has to
23   stressor."                                                              23   establish before he can get a CMP medical exam?
24         As a result, the veteran is told he has got anxiety               24   A. There is a statute that's very liberal. It's 5103. I'm
25   and depression and the claim is denied.                                 25   not sure whether it's small a or capital A. There are both.


                                                                       113                                                                          115




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1          Then the VA writes to the veteran and because they                1    But it deals with the fact that a veteran -- there has to be a
2    want to go fast, they tell him, "Your claim is denied because           2    reasonable possibility that an examination will help the
3    you don't have PTSD."                                                   3    veteran get service connected.
4          So this guy goes out and he may buy a medical opinion             4            We have taken several cases to the Court on that
5    from a private doctor, spend good money on it, and he is                5    issue. We generally get a remand for the board to order an
6    diagnosed with PTSD.                                                    6    exam.
7          Two or three years later he is, again, denied because             7    Q. I would like you to turn back to Exhibit 425 and this time
8    the VA says, "We don't buy your stressor."                              8    turn to Page 1226.
9          We have seen these cases and eventually somebody goes             9    A. Okay.
10   out and either adds evidence to the record or convinces the VA          10   Q. And toward the middle of the page is a Section D, "When to
11   that they were wrong and the vet does get service connected.            11   send the claims folder with an examination request."
12         Then you have to fight about the other two issues                 12           It says:
13   when it comes to service connection; effective date, from when          13         "Do not send the claims folder to examining
14   do you pay, and the evaluation.                                         14      facilities with the examination requests, except in
15   Q. In your review of PTSD claims by veterans, have you                  15      circumstances that may require claims folder review
16   detected any pattern with respect to under rating?                      16      by the examiner."
17   A. Absolutely.                                                          17           First of all, is that consistent with your
18   Q. And what is your opinion on that?                                    18   experience?
19   A. Vets -- of all the claims that are filed in the VA,                  19   A. Unfortunately, even though the Court's have in general
20   veterans who are service connected with PTSD go through -- some         20   told the VA they need to send the claims folder either on --
21   of them, not all of them, but some of them, more than a few,            21   certainly, on claims for service connection, the -- the VA
22   enough to be troubling go through a pattern where they fight            22   examiner needs to know what happened in service to make a -- a
23   for three to eight years to get service connected. It's a               23   linkage opinion.
24   battle and for people with a mental condition it's horrific.            24           Even in claims for evaluation, just for evaluation
25         They finally get service connected. The BVA awards                25   the examiner needs to know the entire history in most claims


                                                                       114                                                                          116
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    for increase.                                                           1    Sizemore, and some other problems.
2          So, yeah, the folder should go and when we see an                 2    Q. What is the problem?
3    examination where the VA denied a claim and did not send the            3    A. Well, let me turn to 1410, if I can. I hope -- I have to
4    claims file to the doctor, we generally take that case to the           4    find it here, so just give me a second.
5    Court.                                                                  5          (Brief pause.)
6          I have to explain. Part of my job is to screen                    6    Q. 1410 looks like it starts on Page 230.
7    American Legion cases that are denied by the Board of Veterans          7    A. That will help. 1410.
8    Appeals for potential appeal to the Court of Appeals for                8          Now, this is the VA talking to the doctor. Okay.
9    veterans' claims. So our group takes that free of charge -- we          9    This is not talking to the adjudicator. It's talking to the
10   don't charge anybody, except the government if we win EAJA              10   doctor. And here is the attitude towards PTSD.
11   fees, and we win a lot of them -- to the Court. And that is             11         The second sentence:
12   almost an automatic case that we take, when they fail to send           12         "At times the examiner may have questions about
13   the folder with the examination.                                        13      the degree of distortion or fabrication."
14   Q. And the next section is called "Veterans Legal Rights".              14         So already they are telling doctors, be suspicious.
15   And it says:                                                            15   They don't do that with other claims.
16         "A veteran has no legal right to be accompanied                   16         Then they say:
17      by counsel during an examination or record an                        17         "The clinical picture of PTSD is relatively easy
18      examination."                                                        18      to fabricate on a superficial level, but very
19         Does that have any significance for you in terms of               19      difficult to fabricate in depth."
20   the way the cases are handled, PTSD cases are handled?                  20         So they need -- they -- they tell the doctor to take
21   A. Several years ago a veteran walked out of an exam where              21   a detailed history.
22   the VA doctor would not let his lawyer come in, and the courts          22         Then you turn to the second page and it says
23   upheld that. So, no, you can't bring somebody with you.                 23   "Documentation of Traumatic Experiences." And it says:
24         And what happened was there is a constant complaint               24         "A study of the Social Work Service may assist in
25   that VA examinations are much shorter than they should be and           25      gathering information."


                                                                       117                                                                          119




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    people will call us and call other service groups and say,              1          And they talk about getting buddy statements or an
2    "They looked at me for just a few minutes and denied my claim.          2    officer's statement, and then they talk about getting
3    That's not fair. I want to bring my uncle, my brother, my               3    documentation from family, friends, et cetera.
4    lawyer in with me," but they are not allowed to do that.                4          This is for the Adjudication Division of the VA to
5    Q. Next I would like you to turn to Exhibit 423.                        5    do. Doctors are not experts in standard of proof and burden of
6    A. Would that be in Volume 1 or 2?                                      6    proof. We don't expect doctors to deal with the "as likely as
7    Q. Volume 2 of 2.                                                       7    not" standard.
8    A. Okay. 423 and it starts with A?                                      8          This, as I talked to Jack Thompson, I said, look,
9    Q. It's right at the very front, first exhibit. This is                 9    this is the kind of thing that needs to be done in the
10   something called The Clinicians Guide?                                  10   Adjudication Division before the exam is scheduled. Why?
11   A. Oh, yeah.                                                            11   Because we have had a series of cases at the courts where
12   Q. Is this the Clinicians Guide that you referred to earlier            12   doctors denied the existence of the alleged event, said it
13   in your testimony today?                                                13   wasn't credible, when we could prove through a presumption or
14   A. Yes, yes.                                                            14   under 38 -- 38 U.S.C. 1154(b), a statement of a combat veteran,
15         MR. ERSPAMER: I move 423 into evidence.                           15   that the event did take place.
16         THE COURT: Received.                                              16         Now, recently there was a training letter or FAST
17         (Trial Exhibit 423 received in evidence)                          17   letter that came out that changed that. That's good, but some
18   BY MR. ERSPAMER:                                                        18   of it is contradictory, too. I don't have it in front of me or
19   Q. Does Chapter 14 of this guide focus on PTSD?                         19   you know where it is. I don't, but I have --
20   A. Yes.                                                                 20   Q. Is that the PTSD letter or FAST letter that was issued
21   Q. And have you examined this for purposes of determining               21   last week?
22   whether it's in compliance with other VA rules and regulations?         22   A. I think so, yeah.
23   A. Yes. In fact, I found it so upsetting I called, I                    23   Q. We will get to that a little later.
24   believe, Jack Thompson in VA general counsel's office to tell           24         Now, in your experience, do PTSD claims at the
25   him that the guide contradicted some court cases, a case called         25   regional office require additional time compared to other


                                                                       118                                                                          120
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    claims?                                                                 1    didn't know that was so important, but it was important always.
2    A. Yes.                                                                 2             Now, they switched to a computer system. And so in
3    Q. And do you have an estimate as to how long they take?                3    order to claim credit, you have to establish a control, work
4    A. In reality it could take several years longer than other             4    the case and then when you are finished doing the whole case,
5    claims.                                                                 5    you are allowed to claim credit. That's called a P-clear.
6          I have represented people on a test basis seeking                 6    They have P-cans, where you just get rid of the end product,
7    service connection for PTSD. I can't get into who they were             7    but they are relatively easy to mess with --
8    because there is a privilege, a confidentiality. But these              8             MR. WILTSIE: Your Honor, objection. This is from
9    people came. They alleged that they were exposed to a stressor          9    his experience years ago. He worked at the VA as an
10   and it took me, this is me, eight months to a year to get the           10   adjudicator for two years in the 70s. He knows nothing about
11   evidence necessary to win the claim.                                    11   the way that it does business today.
12         Now, when we got it, we won, but we don't trust the               12            MR. ERSPAMER: That's absolutely wrong. I'm just
13   VA to do it right. Whenever we can, we get our own evidence             13   going to continue on with the foundational elements, your
14   and present it and get the benefit going.                               14   Honor.
15   Q. Are you familiar with the GAO report that determined that            15   BY MR. ERSPAMER:
16   stressor verification in PTSD cases takes -- often takes a year         16   Q. Mr. Abrams, at my request did you review the current
17   or more?                                                                17   edition of the M21-4 manual?
18   A. Yeah. I think they said about a year longer to verify.               18   A. Yes.
19   See, sometimes that isn't necessary. One of the things that we          19   Q. Explain to judge what the M24-1 manual is?
20   found is a veteran will file a claim for PTSD. And I have seen          20   A. I think we have another objection.
21   this. If you look -- well, we did a quality check in Buffalo            21            MR. WILTSIE: No --
22   where the veteran submitted statements from fellow combat               22   A. Okay. I will wait for Mr. Wiltsie to object later.
23   veterans who had Purple Hearts with gold stars, meaning they            23            The M21-4 is the manual by which the VA sets up a
24   were wounded in several places, saying that this vet engaged in         24   system to measure its work. Appendix C of that manual
25   combat and was a hero, and the VA took years to go out and              25   establishes hours of work credit, which is the money that VA


                                                                       121                                                                          123




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    verify that his unit was in combat when he had this very                1    managers are earning when they do work.
2    credible statement. They didn't need to do that. That was               2             In the 1970's I worked in a RO. In the 1980's I was
3    just a pure error, but that's because they fight these claims           3    involved in quality checking, and that was a huge problem.
4    more than they fight other claims.                                      4             In the 1990's and 2000's, we went to regional offices
5    Q. Okay. Now, given that the PTSD claims take longer, does              5    to find evidence of claiming credit when work wasn't finished
6    that have any impact on the work credit system used for the             6    and we found it.
7    adjudicators?                                                           7             During our training, I talked to many service
8    A. Sure.                                                                8    officers who will tell you that the driving force in the
9    Q. What is the effect?                                                  9    adjudication system today --
10   A. How detailed --                                                      10            MR. WILTSIE: Objection, your Honor. Hearsay.
11         MR. WILTSIE: Objection, your Honor. There is no                   11            THE COURT: Sustained.
12   foundation that this witness knows anything about the work              12            THE WITNESS: Okay.
13   credit system.                                                          13   BY MR. ERSPAMER:
14         MR. ERSPAMER: I will get into that, your Honor.                   14   Q. Do you have any opinion yourself of what the affect of
15   BY MR. ERSPAMER:                                                        15   the --
16   Q. Mr. Abrams, was a work credit system similar to the one              16   A. Yes, the driving force --
17   that currently exists in effect when you worked at the VA?              17   Q. Let me finish my question.
18   A. The VA has always had a work credit system. When I                   18            Do you have any opinion about the effect of the
19   started to work in the 1970's, they used the cards that you             19   adjudication estimate -- the compensation system on the
20   were not allowed to fold, spindle -- I forgot the name of them,         20   adjudication of claims?
21   but you know what I'm talking about? They were like -- you had          21   A. Yes.
22   to, like, take a card and throw it into a big bin.                      22   Q. What is it?
23         One day I asked my boss, who was in charge of where I             23            MR. WILTSIE: Objection, your Honor. There has been
24   worked, "Why are you throwing so many cards into a bin?" And            24   no foundation.
25   he said, "That way it shows that we are doing lots of work." I          25            This witness, all he did was read the M21-4 manual.


                                                                       122                                                                          124
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    He does not know how it is applied today within the VA. He has         1    than eight issues, you are awarded 14.87 hours. And there is a
2    no experience with this manual today. He has experience from           2    formula there where they have 5.40 plus the 9.47.
3    the 1970's.                                                            3          But what it really means is they award a lot of time
4            MR. ERSPAMER: Your Honor, he is an expert witness,             4    comparatively for that case. But actual work time, it may be
5    number one.                                                            5    that it took 30 or 40 hours to do the case.
6            Number two, he has testified he has done quality               6    Q. What happens --
7    reviews.                                                               7          THE COURT: Wait a minute. What does that mean,
8            THE COURT: Just because you are an expert witness              8    four, five hours --
9    doesn't give you free range to discuss anything. I mean, if he         9          THE WITNESS: Well, now, we are getting into
10   doesn't have the requirements, as pointed out by counsel, then         10   budgeting and production.
11   he won't --                                                            11         THE COURT: Does that affect their pay?
12           MR. ERSPAMER: Let me ask a couple more questions.              12         THE WITNESS: In a -- an indirect way. Here is how.
13           THE COURT: All right.                                          13   The office managers are measured by the amount of work done in
14   BY MR. ERSPAMER:                                                       14   the regional office. If the RO starts to get more work and it
15   Q. In your quality reviews that you have done for the                  15   was a small RO and it's doing more, they will get more people
16   American Legion on a regular basis, have you looked at issues          16   to work in those offices and the grade of the supervisors goes
17   involving the M21-4 manual?                                            17   up because they are managing more people. If you are --
18   A. Absolutely. And that was as -- the last one was in 2007.            18         THE COURT: Why is this relevant?
19   Q. Okay. And have you -- in your experience --                         19         MR. ERSPAMER: Okay. I think --
20           THE COURT: Doesn't the manual speak for itself?                20   BY MR. ERSPAMER:
21   That particular document you have there would indicate that.           21   Q. Can you explain, Mr. Abrams, what this has to do with the
22   Why don't you just explain the document?                               22   adjudication system and the way people are compensated?
23         (Document displayed)                                             23   A. The way veterans are compensated?
24   BY MR. ERSPAMER:                                                       24   Q. No, no. The way the employees are compensated.
25   Q. I see in front you have Exhibit P1282. Do you recognize             25         MR. WILTSIE: Your Honor, I renew my objection. He


                                                                      125                                                                         127




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    it?                                                                    1    has no basis for this testimony.
2    A. I can't see it. If it was on the screen, I could see it.            2          THE COURT: Lay a foundation. How does he know? He
3            MR. ERSPAMER: Can you bring it up?                             3    can say what it was then. Maybe now they have a new system.
4            THE COURT: If you want to get down, you can get                4          MR. ERSPAMER: No, he is --
5    down.                                                                  5          THE COURT: Somebody else is going to get on the
6            THE WITNESS: I think it's here.                                6    stand and say that's what the VA -- to explain it?
7          (Document displayed)                                             7          MR. ERSPAMER: No, the -- Mr. Abrams is very familiar
8            THE COURT: It's there now. Can you see it there?               8    with this manual -- I will ask him.
9            THE WITNESS: Yes.                                              9    BY MR. ERSPAMER:
10   A. Okay. This screen shows the hours awarded for non-rating,           10   Q. Mr. Abrams, are you familiar with the current --
11   rating and combined for claims.                                        11   A. Yes.
12   BY MR. ERSPAMER:                                                       12   Q. -- rules and standards used?
13   Q. Okay.                                                               13   A. Yes. And that's because of our quality trips and our
14   A. Now, when I started in the 70's they had 110, 120, 130.             14   interviews with people.
15   Now they have 010, 020, et cetera, et cetera. They have                15         MR. ERSPAMER: And he has reviewed the manual and he
16   changed it slightly, but I went through that in the 90's when          16   has done it for years?
17   we were doing the quality checks. I was --                             17         MR. WILTSIE: Your Honor, I have to object. This is
18   Q. Just to see if I understand this correctly, like, for               18   misleading. This is not the system by which our VSR's, the
19   example, 172. Preparing a statement of the case, in a rating           19   raters, or the Veteran Service Representatives earn their work
20   case you get 7.09 hours of credit, per credit?                         20   credits.
21   A. Uh-huh.                                                             21         This is a system for determining the number of people
22   Q. What happens if it takes you 22 hours to do a statement of          22   that should be in a regional office. It has nothing to do with
23   the case?                                                              23   incentive compensation.
24   A. You get the same amount of credit. The VA doesn't                   24         MR. ERSPAMER: That was interesting testimony, your
25   average. So you can have -- if you have a 010, which is more           25   Honor, but completely inconsistent with my understanding, what


                                                                      126                                                                         128
                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    counsel just said.                                                      1    cases where the Board of Veterans Appeals said, not enough was
2          THE COURT: Does this have anything to do with                     2    done on this case. We need more evidence. We need you to get
3    incentive compensation?                                                 3    this or do that and send it back.
4          MR. ERSPAMER: This has to do with incentive                       4          So the backlog has moved in some parts from the
5    compensation.                                                           5    regional offices to the -- what we call the AMC in D.C. So we
6    BY MR. ERSPAMER:                                                        6    see these cases and it is a frustrating process.
7    Q. What does it have to do with incentive compensation?                 7    BY MR. ERSPAMER:
8    A. Here is what it has to do with --                                    8    Q. Let me ask you specifically --
9          THE COURT: Well, isn't this more a quality? You                   9          THE COURT: I'm going to let him testify, but on
10   rate a particular worker at the end of a particular quarter and         10   cross-examination I can determine the weight to be given to the
11   you say is he a good worker, a bad worker or what?                      11   testimony.
12         THE WITNESS: Correct.                                             12         MR. WILTSIE: Yes, sir. Thank you.
13         THE COURT: If he is a bad worker, he may lose his                 13   BY MR. ERSPAMER:
14   job and if he is a good worker, he may get a medal or                   14   Q. Based upon your experience, Mr. Abrams, what is the impact
15   something.                                                              15   of the work credit system on the adjudication process of PTSD
16   A. In theory, the VA has a quality check, a productivity                16   claims?
17   check on the veteran -- I'm sorry, on the worker, and they              17   A. Because PTSD takes more time to get evidence than the
18   check how timely that is. In other words, how long did it take          18   general claim, regional offices take shortcuts to get to a
19   for this person to do the case.                                         19   final work credit claim. So they may not go out and get the
20         Because there is such an emphasis on production,                  20   evidence that is necessary to prove that the stressor existed.
21   workers who do a lot of cases and claim a lot of work credits           21         Also, VA examiners may evaluate a veteran and say,
22   make their bosses happy and they are the people who are looked          22   "Here are his symptoms and here is his GAF score."
23   at for promotion and bonuses. That's what it has to do with.            23         By rule, in the manual, it says that if the
24         And if you go into a regional office -- I'm talking               24   examination is inconsistent with the GAF score assigned, the VA
25   about people who have said things, you know, to me and, also,           25   is supposed to send it back to the examiner and have the


                                                                       129                                                                          131




                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    based on my personal experience --                                      1    examiner explain him or herself as to why they assigned a lower
2          MR. WILTSIE: Hearsay, your Honor.                                 2    or higher GAF score. They don't do that a lot because that
3    A. I don't know how else to say it -- I will stop.                      3    takes time. Time is, you know, part of fairness, but they want
4          THE COURT: Doesn't that happen in all businesses?                 4    to get that work credit so they don't do that.
5          THE WITNESS: Absolutely. However, if you are                      5    Q. Now, in here you described your quality reviews for the
6    building a fort and you take shortcuts with quality, people             6    American Legion. In your quality reviews have you found any
7    don't buy the product. There is a -- there is a quality check           7    recurrent problems such that they can be described as systemic
8    in -- in the market.                                                    8    issues?
9          Veterans don't have it. They can't go to another VA               9    A. Yes.
10   to get their benefits. Many of them drop out when the VA                10   Q. What have you found?
11   claims its 14 hours of credit, but didn't do all the work.              11   A. Under evaluation of PTSD. Under evaluation of mental
12   They end up getting frustrated and quitting.                            12   conditions in general, and premature denial of claims,
13         This is why so many cases have to be filed again and              13   especially premature denial of PTSD claims.
14   again and why claims go all the way up to the board when they           14         Failure to accept evidence suggestive of individual
15   find out that the VA should have done X, Y and Z. Didn't do             15   unemployability, and a misunderstanding and unfair denials of
16   it. They send it back. The VA again fails to do what the                16   claims for individual unemployability.
17   board says. It goes back to the board. It comes back and the            17         Failure to consider secondary conditions to diabetes,
18   vet says, "The heck with this. I quit."                                 18   because the VA is not happy with that condition.
19         THE COURT: Is that happening today?                               19         Failure to deal properly with claims for hearing
20         THE WITNESS: Yes.                                                 20   loss, especially hearing loss with tinnitus based on exposure
21         THE COURT: How do you have knowledge of that?                     21   to loud noise. It's a major problem and a lot of that goes to
22         THE WITNESS: Because we help -- help on a weekly                  22   the Court.
23   basis the American Legion with its claims. We train them. We            23   Q. Okay. You mentioned premature denial of PTSD and other
24   screen cases to be placed with lawyers and we see that there            24   claims. Can you explain to the Court what premature denial is?
25   are close to 20,000 cases at the Appeals Management Center,             25   A. That's when the regional office says, we have enough to


                                                                       130                                                                          132
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    rate the case and they deny the claim.                                  1    not to file an appeal.
2    Q. And do they deny the claim without completing the full               2            THE WITNESS: Right.
3    factual development required by the rules?                              3            THE COURT: But to file a new claim.
4    A. Yes.                                                                 4            THE WITNESS: Right. What's called a reopened claim.
5    Q. And can a claim be denied multiple times at a regional               5            THE COURT: Wouldn't that be the logical thing? If I
6    office before it ever goes up on appeal?                                6    filed a claim and it's denied, I looked at the claim again and
7    A. Certainly.                                                           7    I say to myself, well, maybe I need more information. So I put
8    Q. How does that happen?                                                8    more information -- the proper thing to do to expedite the
9    A. In fact, some regional offices encourage veterans and                9    whole procedure, to put the extra information on the new claim
10   their advocates not to file appeals, to file new evidence,              10   and file that claim rather than going ahead with an appeal
11   which could be rerated and get another work credit, because             11   that's going to just refer to the facts that are in the
12   they can get another work credit for the new evidence if an             12   particular judgment.
13   appeal isn't filed and they push people in that direction.              13           THE WITNESS: In some cases that would be true. In
14   It's an attempt to get more work credit. It's also -- they              14   others, the advocate will ask the board member, the rating
15   work with the people who represent vets in the RO to do this --         15   board member at the regional office to just reconsider.
16   Q. Well, is it possible --                                              16           They don't submit evidence. They just say take
17   A. We teach them not to do that, to file their -- their NOD             17   another look and they literally beg them not to file an appeal.
18   right away.                                                             18   BY MR. ERSPAMER:
19   Q. In -- can it be the case that the same claim is denied               19   Q. Why is that?
20   two, three, four, five times at the regional office, each               20   A. Because I think they don't want to show on their records
21   time --                                                                 21   they have more appeals, and there may be end product credit
22   A. I have seen that --                                                  22   involved.
23          THE REPORTER: I'm sorry, counsel.                                23           MR. WILTSIE: Your Honor, he is speculating.
24   BY MR. ERSPAMER:                                                        24           THE COURT: Sustained.
25   Q. You have to wait for the question to be finished, okay? I            25


                                                                       133                                                                          135




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    will start again.                                                       1    BY MR. ERSPAMER:
2           Can it be the case that the same claim by the same               2    Q. Let me refer you to Exhibit P1276 for a minute.
3    veteran is decided two, three, four, multiple times at the              3            MR. ERSPAMER: This is a different one, your Honor,
4    regional office level with the adjudicator taking the work              4    than used in the opening statement.
5    credit each time?                                                       5    A. Can you make it bigger, whoever is showing it?
6    A. Yes.                                                                 6            (Document displayed)
7           MR. WILTSIE: Objection, your Honor. He is leading                7    A. Thanks. I can see that.
8    the witness.                                                            8    BY MR. ERSPAMER:
9           THE COURT: Sustained.                                            9    Q. This is the adjudication times based upon the
10   BY MR. ERSPAMER:                                                        10   interrogatory answers that we just got for the average service
11   Q. Explain how it works, that a adjudicator can get multiple            11   connected death and disability compensation claim. Do you see
12   work credits for a single claim at the regional office?                 12   that?
13   A. Let's say a veteran files a claim for service connection.            13   A. Yes, I do.
14   There are three elements to a claim for service connection:             14   Q. Did you review this?
15   Current condition, event or something that happened in service,         15   A. Yes, I did.
16   and linkage.                                                            16           THE COURT: Can you see that all right?
17          There is evidence in the file that indicates the                 17           THE WITNESS: Yeah, I can see it. I can see it on
18   VA -- to the VA that the vet may have a current condition, but          18   the screen here better.
19   it's not clear.                                                         19           THE COURT: I have empathy for that.
20          So the VA may go out for evidence of a current                   20           THE WITNESS: My eyes are spectacularly near-sighted.
21   condition. They get it and they deny the claim because they             21           THE COURT: As I say, I have empathy for that.
22   don't have evidence of an event in service. They didn't ask             22           MR. ERSPAMER: Me too, your Honor, and I'm a little
23   the veteran for evidence on that topic, but they just denied            23   closer than you are.
24   the claim.                                                              24   BY MR. ERSPAMER:
25          THE COURT: You said that they encouraged the veteran             25   Q. Looking at the first part of the chart, from Claim Filed


                                                                       134                                                                          136
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    to the Regional Office Decision, do you see that 189.4 days?            1           THE REPORTER: I'm sorry. One at a time, please.
2    A. Yes.                                                                 2    A. And you can see that's a pretty long time.
3    Q. That came from interrogatory answers, 189.4 days.                    3    BY MR. ERSPAMER:
4             Do you have an opinion about whether that's accurate           4    Q. Do you have more confidence in the numbers with respect to
5    or inaccurate?                                                          5    the appeal process?
6    A. It's not accurate.                                                   6    A. Yes, because there's a system called VACOLS, where you
7    Q. Why do you say that?                                                 7    have to enter it in a case when it's appealed and they track it
8    A. Because veterans may file a claim two or three times                 8    there, and I believe they get some numbers from that. But the
9    before they get the decision that will be appealed.                     9    other numbers in my opinion can be --
10   Q. Okay.                                                                10          MR. WILTSIE: Objection, your Honor. This is the
11   A. This is -- this is typical.                                          11   same thing.
12   Q. Do you have -- based upon your experience, do you have an            12          THE COURT: Sustained.
13   estimate of how long it really takes at the regional office             13         (Document displayed)
14   level?                                                                  14          MR. WILTSIE: Your Honor, I have to object to this
15   A. An estimate?                                                         15   exhibit as to the first time frame. He has got no basis for
16   Q. Yes.                                                                 16   that time frame. He is going to testify to it. There is no
17            MR. WILTSIE: Objection, your Honor. He's                       17   point in having this exhibit up.
18   speculating.                                                            18          THE COURT: What is the time frame? What are we
19            THE WITNESS: I was waiting for that.                           19   talking about?
20            THE COURT: Sustained.                                          20          MR. WILTSIE: From the claim filed to the RO decision
21   A. I can only estimate. It takes longer, but I can't tell               21   is 554 days.
22   you how long.                                                           22          MR. ERSPAMER: I'm going to go into that, your
23            MR. WILTSIE: Your Honor, objection.                            23   Honor --
24            THE COURT: Sustained.                                          24          THE COURT: Wait, wait. What did you say?
25                                                                           25          MR. WILTSIE: My objection to this exhibit is the


                                                                       137                                                                          139




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    BY MR. ERSPAMER:                                                        1    witness has testified there is no basis for his knowledge as to
2    Q. And do you have an understanding as to how the VA                    2    the time from the claim filed to the RO decision. They are
3    calculates time measurement for the regional office decisions?          3    claiming 554 days.
4    A. They are supposed to control a claim when it's filed.                4           The evidence that we gave them in the interrogatories
5    They have seven days under the M21-4 to set up a computer               5    is 187 days.
6    control. Sometimes they wait longer to do that.                         6           MR. ERSPAMER: Your Honor, first of all, he has
7             MR. WILTSIE: Objection, your Honor.                            7    testified it takes more than a year to get the stressor
8             THE COURT: Sustained.                                          8    verification already. That is part of the that 554 days.
9    BY MR. ERSPAMER:                                                        9           MR. WILTSIE: I believe that --
10   Q. Do you have personal knowledge of the -- in your audits of           10          MR. ERSPAMER: I will lay the foundation with this
11   the VA regional offices of situations where they wait longer to         11   witness for each of these numbers. That's what I intend to do.
12   set up a control?                                                       12          THE COURT: All right.
13   A. There are cases that we have looked at on quality where it           13   BY MR. ERSPAMER:
14   took them over a month to set up the control.                           14   Q. At my request, Mr. Abrams, did you work on this chart with
15            MR. WILTSIE: Objection, your Honor.                            15   us?
16            THE COURT: Sustained.                                          16   A. I looked at it with you.
17   BY MR. ERSPAMER:                                                        17   Q. And you looked at the numbers and went through it?
18   Q. Take us through this -- this average claim. Have you                 18   A. Yes.
19   formed any -- ever had any concerns in your work about the time         19   Q. And based upon your knowledge and experience in handling
20   frames involved in VA claims and appeals?                               20   PTSD claims, do you have an opinion about how long they take on
21   A. Well, a lot of the numbers that the VA produces are not              21   average in the regional office?
22   accurate, in my opinion, but the time from the Form 9 to                22          MR. WILTSIE: Objection, your Honor. This is
23   certification is a pretty hard objective number -- and you can          23   obviously the work of counsel, not of the witness. He just
24   see that that's --                                                      24   testified to that.
25   Q. And do you have more confidence --                                   25


                                                                       138                                                                          140
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    BY MR. ERSPAMER:                                                       1    say this, Judge, but the ones that I have seen show that very
2    Q. Mr. Abrams, have you looked into personally how long it             2    little extra was put into the Statement of the Case since the
3    takes PTSD claims to be handled in regional offices?                   3    rating decision.
4    A. Only on the ones that I have worked on. I can't say in              4    BY MR. ERSPAMER:
5    general.                                                               5    Q. And in your experience actually drafting Statements of the
6    Q. We will just talk about the ones --                                 6    Case and reviewing thousands of Statement of the Case, have you
7          MR. ERSPAMER: Your Honor, this points out how                    7    formed an opinion in your own mind about how long it actually
8    important it is that the -- we didn't get that data at the             8    takes to do one?
9    regional office. He is objecting to it and I think we need to          9    A. Yes.
10   deal with that.                                                        10   Q. What is that?
11         THE COURT: All I'm concerned with is the data you                11   A. It should take no -- no more than a couple of hours once
12   have got now. I'm not going to back and rehash something we            12   the VA gets to work on the case unless they have to go get
13   have been talking about for a long time.                               13   evidence. They have to get evidence and that could be why it's
14   BY MR. ERSPAMER:                                                       14   long. It's because they -- they didn't get it in the first
15   Q. Let's just not look at the regional office for a moment.            15   place. The vet complains about it. Now they have to go out
16   Let's look at the -- once there is a regional office decision,         16   and get it.
17   the veteran has one year to file an appeal, correct?                   17   Q. Looking at the next -- skipping ahead. After the
18   A. That's right.                                                       18   Statement of the Case, the veteran has to file a Form 9 appeal
19   Q. And that takes us through the --                                    19   within 60 days of the remainder of the one year period from the
20   A. You have one year to file your NOD from the date of the             20   time of filing?
21   decision letter.                                                       21   A. Yes.
22   Q. And then the Notice of Disagreement shown here on the               22   Q. And then after the Form 9 appeal, what happens?
23   chart, do you see that?                                                23   A. After the 9 is filed, the case is still open. You could
24   A. Yes.                                                                24   still add evidence at that point. You can add evidence up
25   Q. It shows 221.1 days, which is right out of the                      25   until the case gets to the Board of Veterans Appeals, where you


                                                                      141                                                                          143




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    interrogatories, to prepare the Statement of the Case.                 1    have -- I think it's 90 days to add evidence and then you can
2          In your opinion, is that a reasonable time frame for             2    file a motion for good cause to add evidence after that.
3    the average case?                                                      3          But you see that there that it's certified to the BVA
4          MR. WILTSIE: Objection, your Honor. Basis for this               4    652 days later, which is pretty long.
5    testimony?                                                             5    Q. Actually, I think it says 625 days.
6          THE COURT: Sustained.                                            6    A. I'm sorry. I'm having trouble seeing the numbers.
7    BY MR. ERSPAMER:                                                       7    Q. 625.2 days later.
8    Q. Mr. Abrams, are you familiar with Statements of the Case?           8          Based upon your -- well, have you actually
9    A. Yes.                                                                9    participated in the process of certifying claims to the BVA?
10   Q. Have you prepared them yourself?                                    10   A. No, I have not.
11   A. Yes.                                                                11   Q. Have you looked at BVA certifications and files?
12   Q. Have you reviewed a lot of Statements of the Case in the            12   A. It's not a BVA certification. It would be a regional
13   claims files that you have reviewed?                                   13   office certification.
14   A. I would say thousands.                                              14   Q. Right. Correct.
15   Q. Thousands of them. Are you familiar with the content                15   A. It's just a form.
16   generally?                                                             16   Q. And do you have an opinion about how long it should take
17   A. Yes.                                                                17   to prepare that form and certify the appeal to the BVA?
18   Q. What do they include?                                               18         MR. WILTSIE: Objection, your Honor.
19   A. Today they are a disaster. They include --                          19         THE COURT: Sustained.
20   Q. Just stick to the question, please. What would they                 20   BY MR. ERSPAMER:
21   include?                                                               21   Q. Well, put it this way. Can you offer any explanation as
22   A. They include 15 pages of boilerplate that's hard to                 22   to why it takes 625 days to do it?
23   understand. Then about a paragraph and a half of analysis at           23         MR. WILTSIE: Objection, your Honor. No foundation.
24   the very end. Most --                                                  24         THE COURT: Sustained.
25         THE WITNESS: Well, I don't know if I'm allowed to                25


                                                                      142                                                                          144
                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    BY MR. ERSPAMER:                                                       1    35.1 percent of the cases are remanded. What happens then?
2    Q. What -- what actually is involved -- what does the                  2    A. Generally, I would say over 80 percent, possibly
3    regional office have to do after they receive the Form 9               3    90 percent, go back to the Appeals Management Center.
4    appeal?                                                                4    Q. What is the Appeals Management Center?
5    A. They have to either get evidence --                                 5    A. That was the organization that was created to catch the
6          MR. WILTSIE: Objection again, your Honor. There is               6    overflow of cases that were being sent back by the BVA because
7    no foundation this witness knows this.                                 7    more development had to be done on cases, either because issues
8          THE COURT: He just said he didn't.                               8    were ignored or because evidence had not been obtained.
9          THE WITNESS: No, sir. That was on something else.                9          This is a relatively new development. It used to go
10   A. By regulation if the veteran alludes to evidence in the             10   back to the regional offices.
11   Form 9, they are obligated to go get the evidence. And that's          11   Q. The other 10 to 20 percent go back to the regional
12   part of, of the rules. That could be a delay.                          12   offices?
13         It could be a supervisor in the VA looked at the                 13   A. When the board finds a regional office clear error that
14   case, and they have people to do that, and they go, "Oh, my            14   they should correct, it will send it back there. Otherwise, in
15   goodness. He said he served in this particular part of Iraq.           15   general it goes to what we call the AMC.
16   We need to get the unit records from this. We didn't do it.            16   Q. And this -- these interrogatory answers show an average of
17   We screwed up. We better go do it." That I can -- I can tell           17   5.58 years for remands to the AMC and regional offices. What
18   you is part of the deal.                                               18   occurs during that time?
19   BY MR. ERSPAMER:                                                       19   A. When you say 5.58 years, do you mean that it takes 5.58
20   Q. Well, Mr. Abrams, in some cases -- let's assume the                 20   years to go from the AMC back to the board --
21   veteran does not submit anything new and there is nothing more         21   Q. Yes.
22   to be done.                                                            22   A. -- or to get a final decision?
23   A. Right.                                                              23   Q. I believe it's -- let me make sure.
24   Q. What is involved in the certification step?                         24        (Discussion held off the record.)
25   A. It's -- they have to fill out a form and the service                25   Q. Back to the board. Back to the BVA.


                                                                      145                                                                          147




                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    organization gets to do one more 64 -- I believe it's a 646.           1    A. So these are only on the cases that the board remands, the
2    And then they -- they sign a form saying, well, everything has         2    AMC does not grant, the case automatically goes back to the
3    been done and we are going to send it to the board, and then           3    board.
4    they hold it until the board calls for it.                             4    Q. It's an averaging of the two?
5    Q. What do you mean, "hold it until the board calls for it"?           5    A. Oh, it's an averaging of the two?
6    A. The board is so backlogged that they can't take cases when          6    Q. Yes, it's the average time total.
7    they are ready to come up. They have to wait until the board           7    A. Because I know that the --
8    has time to put it into its file bank to look at.                      8          MR. WILTSIE: Your Honor --
9    Q. In your experience, how long does that take?                        9          THE COURT: Wait, wait, wait. I'm having a hard time
10   A. I would say it could take over a year, sometimes more.              10   figuring out who is testifying.
11   Q. All right. And then once the case is certified to the               11         MR. WILTSIE: Thank you, your Honor. That's my
12   BVA, the interrogatory answers on which this is based show             12   problem.
13   226.3 additional days. Do you see that?                                13   BY MR. ERSPAMER:
14   A. Yes.                                                                14   Q. You say some of the cases go to the AMC. Some of the
15   Q. That's the actual time to actually prepare the decision at          15   cases go back down to the regional office. Do you know how
16   the board, right?                                                      16   long it takes on average for that process?
17   A. Right. They don't work on it right away. They have to --            17   A. No, I do not. I know it could take awhile, but you can't
18   they have it. It sits in a file bank.                                  18   -- I don't have any exact answers.
19         The service groups who represent the veteran there               19   Q. All right. And are you familiar with the statistics on
20   have an opportunity to write an informal brief is what -- it's         20   how many cases are remanded a second time after going back to
21   a brief. They call it an informal brief, and they may go out           21   the board after one remand?
22   and get evidence or they may get a supportive opinion and then         22   A. I believe it's 27 percent.
23   the case goes to the board. Once it gets to the board judges           23   Q. Have you ever heard of the hamster wheel phenomenon?
24   there, it goes fairly quickly, in my experience.                       24   A. Yes --
25   Q. Let's assume that there has been a remand. The                      25         MR. WILTSIE: Your Honor, objection. No basis for


                                                                      146                                                                          148
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    this.                                                                   1    A. Correct.
2            MR. ERSPAMER: It's a recognized term for it, your               2    Q. Were there any statements made by counsel that you would
3    Honor.                                                                  3    take issue with that come to mind?
4            THE COURT: Does it have relevance here?                         4    A. Yes. I made a couple notes.
5            MR. ERSPAMER: Yes, it does. He can explain.                     5          THE WITNESS: Am I allowed to look at them, judge?
6    BY MR. ERSPAMER:                                                        6          THE COURT: Well, I don't see that there is a
7    Q. What is the hamster wheel phenomenon?                                7    question yet. You are not going to start commenting on the
8    A. The hamster wheel is a term we have used in testimony                8    whole opening statement. That's not proper. He will make an
9    before Congress.                                                        9    objection to that.
10           What it means is veterans get on this wheel and they            10   BY MR. ERSPAMER:
11   keep spinning around and around and around. They get done               11   Q. Were there particular items in the statement that you
12   because even though the board remands to do certain things, the         12   disagreed with?
13   regional office or the AMC just don't do what the board tells           13         MR. WILTSIE: Objection.
14   them to do. It gets back to the BVA. The board notes it                 14         THE COURT: My objection is sustained.
15   hasn't been done. They send it back to the AMC and they go              15         MR. ERSPAMER: Okay. I'm sorry.
16   round and round again. It's a shame.                                    16   BY MR. ERSPAMER:
17           MR. WILTSIE: Your Honor, we object. It's a term                 17   Q. One of the areas that was covered was the fact that
18   they designed.                                                          18   relatively a few number of veterans actually appeal, perfect
19           THE COURT: Sustained.                                           19   the appeal. Do you recall that issue?
20   BY MR. ERSPAMER:                                                        20         MR. WILTSIE: Objection, your Honor. He is trying to
21   Q. Mr. Abrams, is it a term that I coined or you coined?                21   get through the side door what he couldn't get through the
22           THE COURT: His testimony speaks for itself.                     22   front door.
23   BY MR. ERSPAMER:                                                        23         THE COURT: What was the question? Are we going over
24   Q. Okay. Mr. Abrams, with respect to your reviews of the                24   the same thing again?
25   regional office claim files, have you ever seen any incidents           25         MR. ERSPAMER: No. We are going over an issue of


                                                                       149                                                                          151




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    of top sheeting?                                                        1    fact with respect to reasons why veterans appeal or don't
2            MR. WILTSIE: Objection, your Honor.                             2    appeal. I will just ask it directly.
3            THE COURT: Of what?                                             3    BY MR. ERSPAMER:
4            MR. ERSPAMER: Top sheeting.                                     4    Q. In your experience, Mr. Abrams, do -- do all the veterans
5            THE COURT: Top sheeting?                                        5    who don't perfect an appeal to the BVA have invalid or
6            MR. WILTSIE: He's leading the witness.                          6    unsubstantiated claims?
7    BY MR. ERSPAMER:                                                        7          MR. WILTSIE: Objection, your Honor. Calls for
8    Q. Do you have an understanding of the term "top sheeting"?             8    speculation and he's leading the witness.
9    A. Yes.                                                                 9          THE COURT: It's pretty general, counsel.
10   Q. What does it mean?                                                   10         MR. ERSPAMER: Let me be more specific.
11   A. It means that when an adjudicator or rater who is pressed            11   BY MR. ERSPAMER:
12   for time, who is supposed to review the entire claims file,             12   Q. A relatively small number, percentage of claims,
13   just looks at the top couple documents and makes an improper            13   10 percent or so, are actually appealed, right?
14   decision, which results in a -- in a series of errors that              14   A. I think it's 12 percent have an appeal, and then 4 percent
15   delay the correct adjudication of the claim for years.                  15   go forward based on the testimony I heard this morning.
16   Q. And in your review files have you seen evidence of top               16   Q. Okay.
17   sheeting?                                                               17         MR. WILTSIE: Objection, your Honor. He has got no
18   A. Yes.                                                                 18   foundation for anything along this line.
19   Q. How frequent is it?                                                  19         MR. ERSPAMER: He certainly does. Your Honor, he
20   A. It happens on a regular basis.                                       20   spent his whole life doing this work.
21           MR. WILTSIE: Objection, your Honor.                             21         MR. WILTSIE: He just said based on the testimony he
22           THE COURT: Sustained.                                           22   heard this morning, which I assume refers to opening statement.
23   BY MR. ERSPAMER:                                                        23   He has no personal knowledge.
24   Q. Mr. Abrams, you were here this morning when the opening              24         MR. ERSPAMER: I will get into that.
25   statement of counsel occurred, correct?                                 25


                                                                       150                                                                          152
                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    BY MR. ERSPAMER:                                                       1    VA is supposed to do what it needs to do to get the case ready
2    Q. Mr. Abrams, do you have personal experience working with            2    to go to the board. There is no time deadline for that.
3    veterans on an one-to-one basis?                                       3          Once the case gets to the board, the board could take
4    A. Yes, I do.                                                          4    forever to deal with it.
5    Q. And have you often -- have you looked at claim files of             5    Q. Mr. Abrams, if a rater prematurely denies a claim, like
6    how many veterans do you think?                                        6    you testified before, what happens to the rater? Is there a
7    A. Thousands.                                                          7    penalty?
8    Q. Okay. And in your experience, do veterans always succeed            8    A. Do you want in theory or actuality?
9    in getting their Form 9 appeal on time within the 60 day time          9    Q. Both.
10   limit?                                                                 10   A. Okay. I'm watching Mr. Wiltsie. He's ready to jump up
11            MR. WILTSIE: Objection, your Honor. He's leading              11   again, so I just want to -- if I get started, I want to know I
12   the witness.                                                           12   can finish.
13            THE COURT: Proceed.                                           13         What happens is this. When a rater prematurely
14   BY MR. ERSPAMER:                                                       14   denies a claim, the office -- I don't care about the credits
15   Q. What is your experience?                                            15   for the person. I'm not testifying to that, but the office
16   A. I'm -- this is fun watching them go back and forth, but --          16   gets a work credit for work completed.
17   Q. Just tell me your experience in how successful veterans             17         If the regional office checks that person on their
18   are in meeting the time deadlines?                                     18   own quality check and finds that he or she did something wrong,
19   A. In my experience, some veterans do not make the deadline.           19   they could be gigged.
20   They wait and they will call and it's tragic. They will say,           20         However, with the emphasis on production, in my
21   "If I had appealed, I could do this," but they didn't appeal           21   experience, that does not happen all the time and --
22   and the case is over.                                                  22         MR. WILTSIE: Your Honor, I have to object now. He
23   Q. There is a time deadline for filing the Form 9?                     23   has no experience in regional offices since 1977 --
24   A. Yes.                                                                24         THE WITNESS: That isn't true.
25   Q. Is there any time deadline you know of the VA for                   25         MR. ERSPAMER: That's not true.


                                                                      153                                                                          155




                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    preparing a Statement of the Case?                                     1          MR. WILTSIE: The claims --
2    A. There is no time deadline.                                          2          THE WITNESS: No, that isn't --
3    Q. Is there any time deadline on the regional office to                3          MR. ERSPAMER: That isn't true --
4    certify to the BVA?                                                    4          THE WITNESS: No --
5             MR. WILTSIE: Objection, your Honor. He is just                5          MR. ERSPAMER: Counsel is testifying --
6    leading.                                                               6          THE COURT: Wait, wait, wait, wait. This lady has to
7             MR. ERSPAMER: I'm asking him -- that's not --                 7    do everything down and she does it one at a time.
8             THE COURT: What are the time lines and then let him           8          So it's your turn. What are you going to say?
9    answer them.                                                           9          MR. ERSPAMER: I was going to say, he reviews claim
10   BY MR. ERSPAMER:                                                       10   files in regional offices all over the country as a regular
11   Q. Are there any time lines on the BVA?                                11   matter. He goes to all these different regional offices and
12            Let me ask a different question. Are there any time           12   does quality review of all the American Legion cases. He has a
13   lines on the BVA with respect to the appeal process?                   13   foundation for this.
14   A. Well, let's go through it.                                          14         MR. WILTSIE: He may very well do that, which means
15   Q. Okay.                                                               15   he may very well occasionally see an error in a claims file,
16   A. Once a veteran files a NOD, the VA has to issue what's              16   but he has no way of knowing what penalty was assessed on the
17   called a Statement of the Case. There is no time deadline for          17   rater who made that mistake. He hasn't been in a regional
18   that.                                                                  18   office in that capacity since at least the mid-80's.
19   Q. Okay.                                                               19         THE COURT: Maybe you should rephrase the question.
20   A. Once the vet gets the Statement of the Case, he has one             20         MR. ERSPAMER: I will rephrase the question.
21   year from the date of the original denial letter, or 60 days           21         THE COURT: Be more specific.
22   from the date of the issuance of the statement of the case, to         22   BY MR. ERSPAMER:
23   submit a substantive appeal on a VA Form 9. If they don't do           23   Q. In your -- based upon your understanding of the way the VA
24   it in that time, the appeal is over.                                   24   incentive compensation system works and the work rules, is
25            Once they submit that form in a timely fashion, the           25   there any consequence for a rater who, for example, does a


                                                                      154                                                                          156
                               4/21/2008 Trial Transcript                                                      4/21/2008 Trial Transcript


1    premature denial?                                                       1    appeal, right?
2    A. In some cases, yes. In most cases, no.                               2    A. Right.
3    Q. Now, early on when we started to talk about the                      3          THE COURT: That chart has to do with just the
4    possibility of you testifying, did you suggest preparing a              4    reverse, right? Each step has a reverse order percentage and
5    chart which would show the cumulative error rate from each part         5    it ends up with 91 percent. Does that mean that only 9 percent
6    of the system starting with the NOD?                                    6    are -- go through?
7    A. Yes.                                                                 7          MR. ERSPAMER: No, no. It means --
8    Q. Okay. And is the -- is Exhibit P1277 a culmination of                8          THE COURT: What does it mean?
9    that discussion?                                                        9          MR. ERSPAMER: It means 91 percent are either
10   A. Similar.                                                             10   reversed or remanded to be redone.
11   Q. And can you explain it?                                              11         THE COURT: You have reversed.
12   A. Yes. We are dealing with claims that are appealed.                   12         MR. ERSPAMER: Reversed means the decision of the --
13         That's the universe that we are working with, Judge,              13   denial of the decision was --
14   just appealed cases.                                                    14         THE COURT: I know what "reversed" means.
15         When a veteran files an NOD, based on what we know,               15         MR. ERSPAMER: The original denial decision is
16   most of the NODs go to what's called a decision review officer,         16   reversed in 91.2 percent of the cases at some level of the
17   who can do a de novo review of the claim.                               17   appellate system. That's what it means.
18         It was my impression, based on the last time I talked             18         THE COURT: So we know what would happen, how many
19   to people in VA central office, that almost 50 or 60 percent of         19   were ultimately successful?
20   those claims were either reversed and granted or remanded for           20         MR. ERSPAMER: Well, each level here some of them
21   additional development because the original adjudication wasn't         21   were outright reversals with grants, and some of -- all of
22   good enough.                                                            22   these are, I believe, 33 percent. These combined remands and
23         Then if the veteran or claimant is not satisfied with             23   this does not take into --
24   the DRO decision, they can appeal to the Board of Veterans              24         THE COURT: I understand. I understand what the
25   Appeals.                                                                25   chart says. I understand part of it.


                                                                       157                                                                         159




                               4/21/2008 Trial Transcript                                                      4/21/2008 Trial Transcript


1          The percentage there on the chart is currently                    1    BY MR. ERSPAMER:
2    accurate. It's been higher in the past. Right now 57.2 are              2    Q. The basic purpose of this, as you envisioned it and as is
3    reversed or remanded. I believe -- I don't have exact numbers           3    shown there, is to -- what is it, the basic purpose?
4    in my head, but I believe there is about 30 percent of that 57          4    A. The basic purpose is to show that of the people who fight
5    are remands and the rest are -- it's around that, are reversed          5    the VA, most of them have been adjudicated erroneously.
6    and claims granted.                                                     6          This shows that if you do appeal, you have got a
7          So out of those thousand cases, if you say that                   7    pretty good chance of winning a remand and getting a fairer
8    33 percent are granted at the DRO level, then you have to take          8    chance of getting your benefits granted.
9    what's left and go on and take 57.2 and take about 20 percent           9          As you can tell, some got granted below. Some get
10   off as granted. The others remanded.                                    10   granted at the board. Some get granted at the court. The
11         Assuming that the veterans who are denied appeal to               11   courts remand generally awards.
12   the Court of Appeals for veterans' claims, the Court will               12         People who don't appeal don't have that opportunity.
13   remand most of its cases and reverse a few.                             13   And we are dealing with disabled people who really don't want
14         That 63.7 percent involves mostly remands because the             14   to deal with mental stress and many drop out of the process.
15   Court determined that the board did not enforce the procedural          15         I mean, I have fought with people to appeal and they
16   rules that protect veterans.                                            16   say, "I just can't take it any more. I don't want to appeal."
17         And then the 16 percent by the Federal Circuit, there             17   I have had personal experience with that.
18   is not a lot of cases going there. So I don't know how                  18         THE COURT: Would you say that a remand is normally
19   significant that 16 percent is.                                         19   an award?
20   Q. So if you add all those errors up, you get 91.2 percent of           20         THE WITNESS: Sometimes, not always. And I don't
21   a thousand original claims?                                             21   have a number as to what are granted by the regional office,
22   A. Yeah, but you have to also take into effect that there               22   but there is a healthy percentage that win.
23   were remands that went back. Some of those would be granted,            23   BY MR. ERSPAMER:
24   some of those would not.                                                24   Q. Based upon your experience, looking at these thousands of
25   Q. Okay. And then some would come back a second time and                25   files, how effective is the VA generally at gathering the


                                                                       158                                                                         160
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    necessary evidence on a claim?                                          1    time and get all the evidence necessary feels the pressure.
2    A. I can answer that by saying when we help veterans                    2            That's obvious if you look at it. Speed is more
3    directly, we advise them to file an informal claim with the VA,         3    important. 70 percent of the raters say so.
4    simply as a statement saying this a claim for PTSD and all              4    Q. Did you feel that pressure when you were a rater?
5    other benefits to which I might be entitled. Then we help them          5    A. Absolutely. In fact, I -- I remember my boss running down
6    get all the evidence that they need to win.                             6    the hall in the Philadelphia office screaming --
7           And we ignore what the VA does because we don't trust            7            MR. WILTSIE: Objection, your Honor.
8    their exams. We don't trust their initial analysis of the               8            THE COURT: Sustained.
9    case. And so we give them a brief with everything written out           9    BY MR. ERSPAMER
10   in it, and those veterans do fairly well. That's part of our            10   Q     I just want to cover just one more topic with you, and we
11   pro bono program. That's what we are getting the lawyers to do          11   will be finished, Mr. Abrams. Did I ask you also to look into
12   who get involved.                                                       12   the issue of informal VA instructions that are delivered via
13          Vets who try to deal with the VA without an advocate,            13   FAST letters?
14   as that study showed -- I forget the name of it, but I think it         14   A     Yes.
15   was on states. Do you remember that study? It's in your thing           15   Q     And did you look into the extraordinary awards letter,
16   here somewhere. Veterans with advocates do a lot better than            16   Exhibit P375?
17   veterans who try to do it themselves.                                   17   A     Yes. Can I get a hint what book it's in?
18   Q. Did I ask you also, as part of your expert testimony, to             18   Q     Yeah, just a minute. I've got to find it.
19   review a CNA May 2007 survey of raters?                                 19           Do you have it?
20   A. Yes.                                                                 20           MR. WILTSIE: Your Honor, we object. This exhibit,
21   Q. And did you review that?                                             21   as Counsel well knows, it appears certainly to be a draft. It
22   A. Yes, I did.                                                          22   has the mark up on it.
23   Q. Do you want to look at Exhibit P414?                                 23           THE COURT: Excuse me for a minute. I've got to find
24   A. P414?                                                                24   it. What volume is it in?
25   Q. Yes.                                                                 25           MR. ERSPAMER: It's in Volume 1 of 2, Your Honor.


                                                                       161                                                                          163




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    A. Okay. Hold on.                                                       1            THE COURT: Volume --
2          (Brief pause.)                                                    2            MR. ERSPAMER: About one third of the way through,
3    A. This is Table 21?                                                    3    375.
4    Q. Table 22, at the bottom.                                             4            THE COURT: What's the number?
5    A. Okay. I'm there.                                                     5            MR. ERSPAMER: 375.
6    Q. And did you review this table?                                       6            THE COURT: Oh, 375.
7    A. Yes. In fact, I saw this when it first came out prior to             7            THE COURT: Okay. Your objection was?
8    this trial.                                                             8            MR. WILTSIE: Our objection, your Honor, is that this
9    Q. This table shows 70 percent of raters found that -- or               9    is not a final letter. It's some form of draft. We did not
10   believe that speed was more important than accuracy?                    10   produce this letter. It has the mark -- it has some sort of a
11          MR. WILTSIE: Objection, your Honor. This witness                 11   mark-up on it. You notice on the right-hand side it's deleted.
12   has no foundation to talk about this document. He didn't                12   There are other areas where it appears -- the figures in
13   participate in the study. The document speaks for itself.               13   highlights, we can't be sure that those are part of the
14          MR. ERSPAMER: I'm going to get into his opinion in a             14   instruction or were an addition that was made by someone who
15   moment, your Honor. He can base his opinion on the report such          15   reviewed this document.
16   as this. He is an expert in the area.                                   16           MR. ERSPAMER: Your Honor, the only changes, there's
17          THE COURT: Okay. Go on.                                          17   a little "deleted" paragraph sign on the right side. That's
18   BY MR. ERSPAMER:                                                        18   it.
19   Q. Okay. What is -- what significance did you attach when               19           Your Honor, this is one of the documents that they
20   you read this?                                                          20   did not produce to us, we had to get from another source. I
21   A. That it's truthful. It's accurate.                                   21   believe it is exactly the same, except for that "deleted" sign,
22   Q. And what -- what do you mean?                                        22   as the original. And that -- that we have established
23   A. Raters from the 70's, 60s on, as well as other people in             23   testimony for this document through the depositions, including
24   the regional offices, are pushed to go faster because there is          24   Mr. Mayes, who recognized the document.
25   such a large backlog. So a rater that wants to take his or her          25           MR. WILTSIE: He recognized it as a draft, Your


                                                                       162                                                                          164
                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    Honor.                                                                  1             MR. WILTSIE: Objection, Your Honor. That calls for
2            MR. ERSPAMER: No, no, he didn't. That's not what he             2    a legal conclusion.
3    said.                                                                   3             THE COURT: Sustained.
4            THE COURT: If it's not the final document, then what            4    BY MR. ERSPAMER
5    good does it do us?                                                     5    Q   Are there specific manual provisions that relate to the
6            MR. ERSPAMER: It is the final document, except it               6    topic of authority?
7    has -- when you print it off the Internet, it has this little           7    A   I -- I -- I know of a manual provision, M21-MR, that
8    "deleted" thing that shows up.                                          8    says --
9            THE COURT: How --                                               9             MR. WILTSIE: Objection, Your Honor. That document
10           MR. ERSPAMER: Can you explain how it is different               10   speaks for itself.
11   from the final?                                                         11            THE COURT: Sustained.
12           MR. WILTSIE: Wiltsie any idea, Counsel.                         12   BY MR. ERSPAMER
13           THE COURT: The question is you are testifying, and              13   Q   How would we find that document?
14   you're not on the witness stand.                                        14   A   You look in the M21-1 MR.
15           MR. ERSPAMER: I'll ask Mr. Abrams.                              15   Q   And, and where is that --
16   BY MR. ERSPAMER                                                         16   A   4.
17   Q Putting aside the "deleted" sign on the first page, do you            17   Q   Pardon me?
18   believe this is the final document?                                     18   A   Part 4.
19           MR. WILTSIE: Objection, Your Honor.                             19   Q   And what section?
20           THE COURT: Sustained.                                           20   A   I -- I would have to look for it, but --
21           MR. ERSPAMER: Okay.                                             21   Q   Okay. And what is your general understanding of what that
22           THE COURT: Whether he believes it or not, that has              22   provision provides?
23   nothing to do with it. Is it or isn't it?                               23            MR. WILTSIE: Objection, Your Honor.
24   BY MR. ERSPAMER                                                         24            THE COURT: Sustained.
25   Q Do you recognize the document?                                        25


                                                                       165                                                                        167




                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1            THE COURT: I don't care whether he recognizes it or             1    BY MR. ERSPAMER
2    not if it's not the final document.                                     2    Q   Did you review Mr. Pamprim's testimony regarding the
3            MR. ERSPAMER: Your Honor, we have a problem in this             3    extraordinary awards procedure?
4    case. There's not produced key documents --                             4    A   Yes.
5            THE COURT: We don't have a problem because I've just            5    Q   And do you have an opinion based upon reading his
6    sustained the objection.                                                6    deposition testimony?
7            MR. ERSPAMER: All right.                                        7    A   Well, there was something in there that --
8    MR. ERSPAMER                                                            8             MR. WILTSIE: Objection, Your Honor. That is not the
9    Q I'll ask you, apart from the document, do you have an                 9    question.
10   understanding generally of the extraordinary awards procedure?          10            THE COURT: Sustained.
11   A Yes.                                                                  11   BY MR. ERSPAMER
12   Q And what is that based on?                                            12   Q   Based upon your understanding of the extraordinary award
13   A It is based on this particular document that -- I'm not               13   procedures, based upon reviewing the letter and reviewing the
14   allowed to talk about, but we have seen it before.                      14   testimony of VA witnesses, do you believe that the
15   Q Have you seen it, the extraordinary awards document before            15   extraordinary awards procedure complies with VA rules and
16   this case?                                                              16   regulations?
17   A If I could summarize it in general, so we all agree what              17            MR. WILTSIE: Objection, Your Honor. Legal
18   we are talking about, the VA issued an instruction to the field         18   conclusion.
19   that said that if you go back over eight years or award over a          19            THE COURT: Sustained.
20   certain amount of money, you have to send the case in to                20   BY MR. ERSPAMER
21   Central Office for a Central Office review by Compensation and          21   Q   Mr. Abrams, what impressions did you form or opinions did
22   Pension.                                                                22   you form based upon your review of the extraordinary award
23   Q Okay. And, does Compensation and Pension have any role                23   procedure?
24   under the statutes, rules and regulations as you understand             24            MR. WILTSIE: Objection.
25   them, and the actual decision on a claim?                               25            THE COURT: Sustained.


                                                                       166                                                                        168
                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    BY MR. ERSPAMER                                                         1    there anything else that you want to say to the Court that I
2    Q Are you aware generally, putting aside the extraordinary              2    have not asked you?
3    awards procedure, other directives issued by the Central Office         3           MR. WILTSIE: Objection, Your Honor.
4    to regional offices on how to decide particular types of                4           THE COURT: Sustained.
5    claims?                                                                 5           MR. ERSPAMER: He asked me to ask him, so --
6    A There was a FAST letter I believe on PTSD, '07--- I think             6    BY MR. ERSPAMER
7    it was in '08, but there was a '07 attached to it, that I just          7    Q   Is there anything I've missed, sir?
8    looked at again for this particular testimony.                          8    A   (No audible answer)
9    Q Help us understand what the role is of the regional office            9           MR. ERSPAMER: Okay. I think we will wrap up. Thank
10   in adjudication, versus the Central Office.                             10   you.
11            MR. WILTSIE: Objection, Your Honor. I think that               11          THE COURT: Do you want a short recess?
12   calls for a legal conclusion.                                           12          MR. WILTSIE: Yes, Your Honor.
13            MR. ERSPAMER: Your Honor, it is a description of the           13          THE COURT: Okay. We will take about a ten-minute
14   system.                                                                 14   recess.
15            THE COURT: What is the question again?                         15          THE CLERK: All rise.
16            MR. ERSPAMER: Help us understand the roles of the              16          THE WITNESS: Thank you, Judge. I felt like a
17   Central Office versus the role of the regional office in the            17   ping-pong ball.
18   adjudication of claims.                                                 18          THE COURT: Just take it easy.
19            MR. WILTSIE: There's no foundation for this witness            19          (Recess taken from 2:55 to 3:09 p.m.)
20   to testify --                                                           20          MR. WILTSIE: Your Honor?
21            MR. ERSPAMER: This is everything he --                         21                  CROSS EXAMINATION
22            THE COURT: Do you understand the question?                     22   BY MR. WILTSIE
23            THE WITNESS: Here, here's what he's trying to ask,             23   Q   Mr. Abrams, I believe you testified that there are three
24   which is, how does the VA Central Office interact with the 57           24   elements to a PTSD claim. There has to be a medical diagnosis
25   regional offices, in helping them decide claims that are still          25   of PTSD. Correct?


                                                                       169                                                                         171




                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    within the jurisdiction of the regional office, that I can talk         1    A   Yes.
2    about.                                                                  2    Q   There has to be a -- a stressor found.
3             THE COURT: Do you know how they do that today?                 3    A   Traumatic event stressor, yes.
4             THE WITNESS: Yes.                                              4    Q   And there has to be a service connection between the -- or
5             THE COURT: Okay.                                               5    connection between the stressor and the PTSD claim?
6             MR. WILTSIE: Objection, Your Honor. Though he                  6    A   A nexus or linkage, yes.
7    talked about jurisdiction of the regional office, that's the            7    Q   And the stressor has to be somehow to the military
8    legal conclusion. He has an opinion that is a legal conclusion          8    service. That's --
9    as to what the jurisdiction of the legal -- of the regional             9    A   Correct.
10   office is.                                                              10   Q   That's general service connection?
11            THE COURT: Well --                                             11   A   Right.
12            THE WITNESS: I'm just going to quote what the VA               12   Q   And that the requirement of service connection applies not
13   says in its manual.                                                     13   to just PTSD claims, but to all the claims we're talking about
14            THE COURT: -- allow him to give this opinion, the              14   in this case, service-connected death and disability claims?
15   question is whether or not it is legal or not we will decide            15   A   Correct.
16   another day.                                                            16   Q   You mentioned in your testimony, the Joint Service Record
17            THE WITNESS: Without saying what I think, the VA               17   Research Center. You left out the second R.
18   manual says that the jurisdiction over original claims goes to          18   A   I probably will forget that the rest of my life, but yes.
19   the regional office.                                                    19   Q   And I believe there was testimony that a GAO report from
20            In my background, experience, Central Office gives             20   2006 claimed there was like a year delay getting information
21   advice. It can advise a regional office as to what the law is           21   out of the JSRRC. You are aware that as of March '08, that
22   and what to do. But it can't tell them or order them to award           22   time delay is down to 45 days?
23   or deny claims. That's what I know.                                     23          MR. ERSPAMER: Objection, lacks foundation.
24   BY MR. ERSPAMER                                                         24          MR. WILTSIE: I'm asking the witness, Your Honor.
25   Q And Mr. Abrams, I want to give you an opportunity, is                 25          THE COURT: He is asking him if he knows.


                                                                       170                                                                         172
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1           THE WITNESS: I do not know.                                      1    Q   Okay. Now you testified that sometimes the claimant
2    BY MR. WILTSIE                                                          2    claims file does not go to the examiner, but the last sentence
3    Q You don't know that in February of '07, there were                    3    of this excerpt, which was not read by Mr. Erspamer says (As
4    approximately 5100 claims pending at the JSRRC?                         4    read), "Cases that may require claims folder review include
5    A I don't know the exact number. I do know that the VA did              5    Board of Veteran Appeals remands, claims from former prisoners
6    something to go online to expedite getting that, that                   6    of war, and psychiatric examinations." Do you see that?
7    information. Possibly that's where you get that number.                 7    A   Yes.
8    Q You are aware that the VA sent in a special team to the               8    Q   And a PTSD examination would be considered a psychiatric
9    JSRRC to get the number down?                                           9    examination, would it not?
10   A No, I'm not.                                                          10   A   Yes. But can I add to that, or no? Because I've seen
11   Q Are you aware that the current number of pending claims at            11   PTSD exams where the claims file did not go.
12   the JSRRC is 82?                                                        12   Q   But the manual says the claims file should go.
13   A Just from what you tell me.                                           13   A   Yes.
14          MR. ERSPAMER: Assumes facts not in evidence.                     14   Q   I would like to walk you through some of these exhibits
15          THE COURT: Overruled.                                            15   that Mr. Erspamer put up here. I just want to be clear that I
16   BY MR. WILTSIE                                                          16   fully understand what the exhibit shows.
17   Q Sir, you're -- you're a member of a veterans service                  17          The first number, the thousand NODs filed, you are
18   organization, correct?                                                  18   aware that only about 10 to 15 percent of veterans who have had
19   A Right.                                                                19   a claim adjudicated file an appeal, file a Notice of
20   Q You're aware that historically, or currently,                         20   Disagreement at any time?
21   unrepresented veterans do slightly better than those                    21   A   Yes. But as I've said, that's a misleading number,
22   represented by veterans service organizations at the regional           22   because sometimes when a veteran is unhappy or his advocate is
23   office level?                                                           23   unhappy with a regional office rating, they're encouraged to
24   A No, I'm not aware of that. And I think it's the other way             24   ask the regional office rater to reconsider, or they're told to
25   around.                                                                 25   submit new evidence. Evidence that the regional office should


                                                                       173                                                                          175




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    Q So you are not aware that veterans represented by                     1    have gotten in the first place, in some cases.
2    attorneys do slightly worse than those represented by veterans          2    Q   Nothing stops them from filing the Notice of Disagreement?
3    service organizations?                                                  3    A   Correct.
4    A Yes, I'm aware of that, because I've seen those                       4    Q   You are also aware that at the current year and for the
5    statistics.                                                             5    last few years, there's been almost 800,000 claims processed by
6    Q And that's true both at the regional office level and at              6    the Veterans Benefits Administration in any year?
7    the Board of Veterans Appeals?                                          7    A   That is a number you are telling me. I would assume
8    A I'm not saying that. I don't know about the regional                  8    that's close to true.
9    office. And there are so few attorneys involved at regional             9    Q   So we have a thousand NODs filed. The record remains open
10   offices, that that particular statistic I think is based on             10   at all times, correct?
11   inadequate numbers, if it's true.                                       11   A   Correct.
12   Q Mr. Erspamer had you refer to the excerpts from the M21-1             12   Q   So the veteran can supply new evidence at any point in the
13   MR Manual, and I would ask you to do so right now. Page 1226.           13   process?
14   A Could you bring that up on the screen?                                14   A   Yes. And it's fairly complicated, because if the veteran
15   Q I can't. Actually, Mister -- they can.                                15   submits new and material evidence within the appellate period,
16          Specifically, the paragraph that you referred to in              16   it extends the appellate period until the VA can make a
17   your direct testimony, entitled "When to Send the Claims Folder         17   decision on the new and material evidence, which pushes the
18   With an Examination Request."                                           18   final date back some, for the VA to let the veteran submit some
19          I believe you --                                                 19   other appeal or to submit the substantive appeal.
20          MR. ERSPAMER: Do you have a page reference?                      20   Q   Correct. But the appeal remains open and the time clock
21          MR. WILTSIE: I said 1226.                                        21   continues to run on that appeal.
22          THE WITNESS: If we --                                            22   A   Yes.
23         (Witness examines document)                                       23   Q   And when a veteran submits new evidence, the VA has to
24          THE WITNESS: Yes, I see that.                                    24   consider that evidence, correct?
25   MR. WILTSIE                                                             25   A   Absolutely.


                                                                       174                                                                          176
                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    Q And they have a duty to assist the veteran develop that               1    too many cases where they don't do that.
2    evidence, correct?                                                      2          Yes, you're right, that's all the rules. We're
3    A Correct.                                                              3    complaining not that the rules are bad, or at least I'm saying
4    Q And if the veteran gives them a name of another doctor to             4    not that -- that the rules, a lot of them are very protective.
5    go get private records from, they have to go do that.                   5    It's -- it's the execution of them that causes concern.
6    A In my experience, there are some cases where the veteran              6    Q   All right. We're going to talk about that.
7    will file an NOD, and tell the VA, "I was treated by private            7    A   Okay.
8    Doctor Jones and Smith; go get that evidence," and the VA does.         8    Q   All right? But, we have a thousand -- what we have here
9          But in many other cases, the veteran says, "Look, I               9    is 33 percent are reversed on de novo review. You can't say
10   told you I was treated by Jones and Smith. You never got those          10   that, can you? You don't know if it was reversed because of
11   opinions," and during the course of the appeal, the VA does             11   new evidence or because a new requirement came out under VCA,
12   what it should have done prior to the. So that happens, too.            12   and they decided they had to readjudicate the claim, correct?
13   Q I'm talking about a veteran comes in after filing an NOD,             13   A   Yeah. I mean, I don't think you are talking about the
14   and says, "Here's new evidence. Another medical opinion."               14   VCAA. I think that what you're talking about is the claim is
15   A That happens.                                                         15   denied, a veteran cites to new evidence, they get it, it
16   Q They have to -- they have to go get that evidence.                    16   convinces them to grant it.
17   A That's right.                                                         17         If it's a procedural issue, that might eventually
18   Q All right. And, when they do that, there's a -- what they             18   result in evidence, but claims are awarded and granted based on
19   do is they send out, send to the veteran a VCA notice letter.           19   evidence.
20         Have you ever heard that term?                                    20   Q   All right. We are not disagreeing here.
21   A Oh, yeah. I helped to write that statute, so I think I'm              21   A   No. We are on the same page so far.
22   -- I'm pretty familiar with it.                                         22   Q   Okay. And by the way, these thousand down here
23   Q And that notice letter tells the veteran what evidence the            23   (Indicating) who initially filed a Notice of Disagreement, a
24   veteran needs to provide, if any. Correct?                              24   typical claim these days has more than one issue, right?
25   A Yes.                                                                  25   A   Because of the Iraq War, and because veterans know more,


                                                                       177                                                                          179




                               4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    Q And it says what evidence the VA will try to collect,                 1    they are filing claims with a lot more issues in them. They
2    correct?                                                                2    may by filing five, six, eight, ten claims.
3    A Yes.                                                                  3    Q   Yeah, a typical Iraq War veteran actually files a claim
4    Q And, the VA waits sixty days for a response from the                  4    with over nine issues in it, doesn't he?
5    veteran if they have got to get evidence from him, correct?             5    A   I can't say exactly the number, but it's a lot more than
6    A Correct.                                                              6    it was in the seventies and eighties.
7    Q And when the VA sends -- when the veteran authorizes,                 7    Q   And an issue can be totally unrelated disabilities,
8    gives the VA an authorization for his doctor to release                 8    correct? It could be a knee, and a back, and diabetes.
9    records, the VA sends the request to the doctor, correct?               9    A   Happens all the time.
10   A Correct.                                                              10   Q   Okay. And a Notice of Disagreement means you disagree
11   Q And they wait sixty days for the doctor to respond.                   11   with some part of the claim decision, correct?
12   A And if they don't get a response, then they write to the              12   A   Yes. In fact, the rules say that if there are multiple
13   veteran and tell the veteran, "You have got 30 days to let us           13   issues, the veteran is obligated to identify what denials or
14   hear something from you."                                               14   what decisions the veteran wants to appeal.
15   Q And they also follow up again with the doctor, correct?               15   Q   Right.
16   A Right.                                                                16   A   If he just says something generally, the VA writes back
17   Q And they wait --                                                      17   and says, "We made eight decisions. Of the eight, which ones
18   A In some cases. We don't see that all the time on our                  18   do you want to appeal?"
19   quality checks, but they are supposed to.                               19   Q   And within a single issue, as you pointed out, there are
20   Q And so they wait 30 days again.                                       20   several things that could be appealed. One is the grant or
21   A Yeah.                                                                 21   denial, correct? If it was denied. Second is the percentage
22   Q And all of this can happen not only before the claim is               22   of the rating. Correct?
23   adjudicated, but after the appeal starts.                               23   A   Right.
24   A If, if the VA did everything that you said, there wouldn't            24   Q   Third is the effective date.
25   be so many appeals going to the board. The problem is we see            25   A   So you would have two separate kinds of claims. And we


                                                                       178                                                                          180
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    are dealing solely with compensation. Claims that are denied            1    So -- and I apologize to the Judge and everybody else, because
2    and appealed because they want to be service-connected, and we          2    you -- we're talking in esoteric terms.
3    haven't touched effective date or evaluation, and claims that           3    Q   Now, when a statement of the case is issued, a veteran can
4    are service-connected and the veteran disagrees either from the         4    submit new evidence. The -- the regional office then has to
5    date he was paid or she was paid, or the evaluation of the              5    consider it. Correct? The regional office --
6    severity of their condition.                                            6    A   Yes. I'm sorry. I'm nodding. Yes.
7    Q I understand. I understand. But what I'm saying is, a                 7    Q   Regional office makes the decision. And grants -- based
8    veteran in this 1,000 pool down here (Indicating), --                   8    on the new evidence, grants the appeal?
9    A Uh-huh.                                                               9    A   Yes.
10   Q He might have been granted two of his issues totally, and             10   Q   Okay? They're done. They issue a rating decision.
11   he's happy. And he's dissatisfied because he's got an                   11   A   And people are happy.
12   effective date he doesn't like in the third. Correct?                   12   Q   Okay.
13   A Yes.                                                                  13   A   Sometimes.
14   Q So we come to de novo review. At this point, the veteran              14   Q   Then the regional office decides to grant some but not all
15   can -- again, we talked about this -- can submit new evidence.          15   of the requested relief in the appeal based on the new
16   Correct?                                                                16   evidence. The regional office then issues a supplemental
17   A Yes. Now, when you say "de novo," we are limiting that to             17   Statement of the Case. Correct?
18   an appeal where the veteran has elected to go with the decision         18   A   Correct. That's called -- an acronym, SSOC.
19   review officer. They don't have to do that.                             19   Q   Correct. And when they issue the supplemental Statement
20   Q Right.                                                                20   of the Case, they give the veteran 60 days to respond to it.
21   A Some don't.                                                           21   Correct?
22   Q There's a sort --                                                     22   A   To the supplemental?
23   A I just wanted the Judge to know there was two separate                23   Q   Yes.
24   tracks on appeal.                                                       24   A   The supplemental, you doesn't have to respond to at all.
25   Q There's a parallel track.                                             25   Q   You don't have to?


                                                                       181                                                                         183




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    A Correct.                                                              1    A   No.
2    Q Go to the DRO, or what we call the DRO --                             2    Q   But they --
3    A Traditional, or the DRO.                                              3    A   You can, but you don't have to. You do have to respond to
4    Q Yeah. We are crossing each other. Sorry. Traditional                  4    the Statement of the Case.
5    appeal, DRO. If you choose the DRO, you still get to go                 5    Q   Right.
6    traditional at the end of the day, right?                               6    A   Once you filed your Form 9, the case has to go to the
7    A At the end of the day, you have the right to go to the                7    board unless you withdraw your appeal.
8    board.                                                                  8    Q   I agree. But the point is, they're waiting for the
9          THE COURT: What is the DRO?                                       9    veteran to come back yet again for sixty days after they issue
10         MR. WILTSIE: It's called the Decision Review                      10   a supplemental Statement of the Case.
11   Officer, Your Honor. It's a position within the regional                11   A   Or the veteran can write and say, "I have nothing more to
12   office.                                                                 12   add; I want the case to go to the board."
13   MR. WILTSIE                                                             13   Q   And you are aware of the supplemental statements of the
14   Q So the veteran can submit new evidence after, after the               14   case are issued in approximately 62 to 70 percent of all
15   Notice of Disagreement is filed. Then comes the Statement of            15   appeals?
16   the Case. Right?                                                        16   A   Correct. And, can I explain why? Or -- if you want to
17         Now, between the Notice of Disagreement and Statement             17   know? Or --
18   of the Case, some of that delay may be caused because the               18   Q   Well, I'll ask you the question. They're issued because
19   veteran supplied new evidence. Correct?                                 19   there was new evidence submitted. Correct?
20   A Some of it, yes.                                                      20   A   Yes. But why, is the question. In some cases, the
21   Q All right. Get to the statement of the case. It's                     21   veteran really doesn't know what the issues are in his or her
22   issued. Veteran still has the right to submit new evidence.             22   case until they have read a Statement of the Case explaining
23   A As I said to Mr. Erspamer, yes, they could submit evidence            23   why the claim was denied.
24   even after what we call the SOC. Statement of the Case. SOC.            24         It becomes clear to them that they need to get lay
25         The VA has its own language, it's an acronym world.               25   statements to support the stressor, or they need a medical


                                                                       182                                                                         184
                                4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    linkage opinion, or they need a vocational opinion showing they         1    Q   But since I asked the question, I couldn't object.
2    can't do work, to get IU benefits.                                      2             The issue, though, is we have 25 percent of appeals
3          Sometimes they really don't understand it until they              3    being granted. We have 40 percent or closer, between 40 and 50
4    get that Statement of the Case. In some cases, it's -- the              4    percent being denied. And the rest being remanded.
5    regional offices did everything right and there's nothing               5             Now, on your chart here, reversed at the BVA, you
6    wrong, and in other cases, the RO just didn't do it right, and          6    testified that that includes the remands.
7    now the veteran learns for the first time.                              7    A   Correct. It's a reversal/remand combined thing.
8    Q Okay. So we have a supplemental Statement of the Case.                8    Q   And remands can be for any number of reasons. They can be
9    The Form 9's already been filed. The case goes to the board.            9    for new evidence being submitted. The --
10   All right? You are aware, I think you testified, that                   10   A   Correct.
11   approximately 25 percent of the cases are affirmed. Or the              11   Q   Correct. The record remains open even at this stage.
12   appeal is granted. Correct?                                             12   A   It remains open for 90 days. Then you have to file a
13   A This is at the board?                                                 13   motion showing for good cause.
14   Q At the board.                                                         14            As you know, because you have studied this, after 90
15   A I think it's a little less than 25 percent. Over the                  15   days, the board can say "You don't have good cause, you should
16   years, and I'm going on my memory, but it usually is around a           16   have submitted this." And they have a special process that --
17   60 percent combined remand reversal rate at the board. More             17   if you think it has been confusing so far, Judge, they can make
18   like 20 percent granted and 40 percent sent back.                       18   a final decision at the board, but it remains open to consider
19         If you look at a one-year period, you are not getting             19   the new evidence at the regional office, and as if the board
20   a really accurate number. It's lower now, because there's been          20   decision wasn't made, if new evidence comes in after the 90
21   a push at the board to issue final decisions.                           21   days and is not allowed to be submitted. It's an arcane,
22   Q My point is, the board grants the appeal in about 20, 25              22   complicated rule.
23   percent of the cases?                                                   23   Q   All right. But they remand the case. You can remand it
24   A Uh-huh.                                                               24   for new evidence, you can remand it because the law changed.
25   Q The board remands in about 40 percent of the cases.                   25   Correct?


                                                                       185                                                                          187




                                4/21/2008 Trial Transcript                                                   4/21/2008 Trial Transcript


1    A Uh-huh.                                                               1    A   Happens, yes.
2    Q And it denies it in 40 percent of the cases.                          2    Q   You can remand it because the regional office made an
3    A Approximately.                                                        3    error.
4    Q And a denial means that the regional office was right.                4    A   Yes.
5    A I wish I could say yes to that, but it's not true, because            5    Q   You can remand it because of an interpretation of a law by
6    we look at the BVA denials. And, --                                     6    a Superior Court. Correct?
7    Q And that's your opinion. But --                                       7    A   Well, that's a law change.
8    A In my opinion, based on our win rate at the Court of                  8    Q   Well, I was referring to Congress, but --
9    Appeals for Veterans Claims, we win over 85 percent of the              9    A   Yeah, it could be either Congress or the courts during the
10   cases that we take. And the reason is we see so many                    10   course of the appeal say something, and the board realizes that
11   procedural errors.                                                      11   the regional office didn't do what the court says it had to do,
12         It's hard, as you know, to get a reversal at the                  12   it has to go back.
13   Court of Appeals for Veterans Claims. But a lot of claims are           13   Q   And you are aware that the statistics show that only about
14   denied in a premature fashion by the board. And sometimes we            14   a quarter of the remands are due to regional office error?
15   look at a case, it's remanded two or three times by the board.          15   A   That's in the opinion of the Board of Veterans Appeals.
16         Then the board gets tired of sending it back and not              16   And I will tell you, that's like playing poker, and you your
17   having them do it, and they're the cases we really seize on.            17   opponent doesn't have to show his cards, he just announces his
18   And we know that that's a case that we could get a court case           18   hands.
19   on. So, we look at those hard.                                          19            We find that to be a higher percentage, in our
20   Q Well, Mr. Abrams, I'm not quite sure you know how the                 20   opinion.
21   board gets tired, but --                                                21   Q   Okay. So what we have is about 10 to 15 percent of the
22   A We are guessing on that.                                              22   cases get appealed at all, 4 percent get to the board. And of
23   Q Thank you. That's what I thought. And I would have                    23   those that get to the board, ultimately only about 30 to
24   objected, had he asked the question, but --                             24   40 percent -- or 20 percent get granted. Correct?
25   A Okay. But since you did, I can get it in.                             25   A   Let me go through that again so I understand it, slowly.


                                                                       186                                                                          188
                               4/21/2008 Trial Transcript                                                     4/21/2008 Trial Transcript


1    Q Let's walk it through.                                                1          MR. ERSPAMER: I have nothing, Your Honor.
2    A A hundred --                                                          2          THE COURT: All right. Thank you, sir.
3    Q Ten or 15 percent appeal, 4 percent of those who file                 3          THE WITNESS: Thank you.
4    claims or claims get decided in a year, get to the board.               4          (Witness excused)
5    A I think that this chart focuses only on those that are                5          MR. HASSANEIN: Plaintiffs call Donald Hubbard.
6    appealed.                                                               6          (Witness placed under oath)
7    Q Right. It does.                                                       7          THE CLERK: Please be seated. Mr. Hassanein Please
8    A So you are showing me a chart with appeals, but you are               8    state your name, and spell your full name for the Record.
9    changing it, you're saying of 100 percent of all claims, only 4         9          THE WITNESS: Donald Hubbard. D-O-N-A-L-D, middle
10   percent are eventually appealed to the board.                           10   initial A., last name H-U-B-B-A-R-D.
11   Q Correct.                                                              11                 DONALD A. HUBBARD,
12   A That's -- that is the numbers that we've heard for years,             12   called as a witness for the Plaintiff herein, having been first
13   from the VA. Do I have personal knowledge of that? Of course            13   duly sworn, was examined and testified as follows:
14   not. No one does. You or I just get the statistics, we see              14                  DIRECT EXAMINATION
15   them.                                                                   15   BY MR. HASSANEIN:
16   Q But you are the expert on procedure here.                             16   Q   Good afternoon, Mr. Hubbard.
17   A Yes, in some ways.                                                    17   A   Good afternoon.
18   Q So you would be familiar with that number.                            18   Q   Are you currently employed?
19   A Yeah. I've heard that many times.                                     19   A   Yes, I am.
20   Q And you have got no reason to disagree with that number.              20   Q   Who are you employed by?
21   A No.                                                                   21   A   I work for the Military Order of the Purple Heart.
22   Q So you have got 4 percent here. And of that 4 percent, a              22   Q   And what is your position there?
23   quarter, 20 to 25 percent get granted. And the rest are either          23   A   I'm a national service officer.
24   denied or remanded. Correct?                                            24   Q   Can you explain to the Court what a national service
25   A Right.                                                                25   officer is?


                                                                       189                                                                          191




                               4/21/2008 Trial Transcript                                                     4/21/2008 Trial Transcript


1    Q All right. You testified that your experience in looking              1    A   I represent veterans as their advocate to the Department
2    at PTSD cases comes from the few that you have personally               2    of Veterans Affairs.
3    handled, and mostly the American Legion reviews that you do,            3          THE CLERK: Excuse me. Could you pull the microphone
4    correct?                                                                4    closer, please. Thank you.
5            MR. ERSPAMER: Objection. It mischaracterizes his                5          (Request complied with by the Witness)
6    testimony. He didn't say he handled a few.                              6    BY MR. HASSANEIN
7            THE COURT: He asked him the question. He can answer             7    Q   Do you represent all veterans, or just veterans who
8    it.                                                                     8    receive Purple Hearts?
9    BY MR. WILTSIE                                                          9    A   I represent all veterans that have selected Purple Heart
10   Q You can answer.                                                       10   as their representative.
11   A That is not complete. We look at many, many cases that                11   Q   So it includes veterans who have not actually received
12   are decided by the Board of Veterans Appeals, that involve              12   Purple Heart medals?
13   PTSD. That would be the bulk of what we look at.                        13   A   Correct. We can represent any veteran to the Department
14           In the last six months, because of our pro bono                 14   of Veterans Affairs.
15   initiative, we're looking at many, many cases that we're having         15   Q   And what does it take to become a national service
16   NVLSP lawyers screen and submit to me for approval to be placed         16   officer?
17   with a lawyer. Many of those cases involve PTSD.                        17   A   Basically it's accreditation from the organization,
18   Q Okay.                                                                 18   concurred in by -- referred to the VA, and the Office of
19   A Occasionally I do a few test cases.                                   19   General Counsel approves the accreditation process.
20   Q I noticed in your testimony, though, at no point did you              20   Q   Is there mandatory training associated with being a
21   talk about a statistical study. You don't know, you have not            21   national service officer?
22   performed a statistical study?                                          22   A   There's some general training. Because of my past
23   A Correct.                                                              23   experience, much of that training was waived.
24           MR. WILTSIE: We have no further questions, Your                 24   Q   Do you represent veterans free of charge?
25   Honor.                                                                  25   A   Yes, we do.


                                                                       190                                                                          192
                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    Q Do you fill out a representation letter or letter of                  1    predischarge facility in Salt Lake City. Can you just describe
2    engagement with veterans you represent?                                 2    what a predischarge facility is?
3    A Correct. The veteran has to complete a VA Form 21-22,                 3    A   Basically the VA operates two predischarge facilities for
4    Declaration of Representative, what we refer to as a power of           4    the country. Basically our current veterans, as they get out
5    attorney.                                                               5    of the service, have an opportunity to file their claim for
6    Q When did you become a national service officer,                       6    benefits prior to discharge. And, it's referred to the
7    Mr. Hubbard?                                                            7    regional office in Salt Lake for the western half,
8    A In October of 2001.                                                   8    Winston-Salem for the eastern half.
9    Q And, which regional office do you primarily interact with?            9          And again, I just look at those rating decisions. I
10   A I'm located at the VA regional office in Houston.                     10   don't have the claims folder with me, I don't have a copy of
11   Q Is your office physically within the Houston regional                 11   the claim, but I look for logical errors, and see if they make
12   office?                                                                 12   sense to me.
13   A Yes, it is. It's within the regional office building.                 13   Q   And based on your review of rating decisions from the
14   Q Where does Houston rank among the 57 other regional                   14   predischarge facility in Salt Lake City, what percent do you
15   offices, in terms of the number of claims it handles on an              15   defined errors in, roughly?
16   annual basis?                                                           16   A   Relatively small, because again, I don't have the other
17   A Houston is one of the four or five largest regional                   17   information in front of me, and if the veteran has an issue, or
18   offices. And it's the largest regional office with appeal               18   the service officer that actually later deals with the case,
19   workload.                                                               19   you know, they can review it and then advise him further.
20   Q As a national service officer, for MOPH, do you have any              20         Basically, again, I'm looking for logic decisions.
21   other responsibilities aside from directly representing                 21   If they forget something that, reading the rating, they should
22   veterans?                                                               22   have put in, you know, a special monthly compensation issue or
23   A MOPH has assigned me additional duties, including working             23   something like that. Those are the ones I ask the regional
24   at the Board of Veterans Appeals, three or four weeks per year.         24   office to fix before the rating is promulgated.
25         I also review the Purple Heart claims processed on                25   Q   How many cases do you currently have pending?


                                                                       193                                                                          195




                              4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    the predischarge program in Salt Lake City, over -- by using            1    A   At the Houston office, I have -- I think it's about 680
2    computer review of the rating decision. And then I also chair           2    cases pending at the moment.
3    our committee for the western half of the country that                  3    Q   And where do you receive your cases from?
4    determines which cases our attorneys decide to appeal at the            4    A   The bulk of my particular workload is generated from San
5    Court of Veterans Appeals.                                              5    Antonio, because we have -- Purple Heart has service officers
6    Q Okay. Let's take those one by one. How frequently do you              6    located at Fort Sam Houston, at Randolph Air Force Base, and
7    work at the Board of Veterans Appeals?                                  7    then they generate and do most of the outreach for me.
8    A Normally three or four weeks a year.                                  8    Q   So these are recent veterans from among other places, Iraq
9    Q And what is it that you do there?                                     9    and Afghanistan?
10   A I prepare the written argument that was mentioned earlier,            10   A   The majority of them are.
11   the informal hearing presentation.                                      11   Q   And what percent of the cases, the 680 cases that you
12   Q And with respect to the work that you do as the chair of a            12   currently have pending, include a claim for disability
13   committee reviewing BVA decisions, and deciding whether or not          13   compensation for PTSD?
14   they are appealed to the CAVC, can you explain what influences          14   A   A relatively small percent, probably 25, 30 percent.
15   your decision on whether to appeal a case to the CAVC?                  15   Because again, much of my workload is the BDD cases.
16   A Basically we look at the case, and the merits of the                  16   Q   Can you just explain to the Court what BDD is?
17   case, and determine whether -- the limited resources we have            17   A   Benefits Delivery at Discharge. Another acronym.
18   with only one attorney at the court, whether we can represent           18   Q   And can you describe that process?
19   the veteran.                                                            19   A   Again, veterans within six months -- servicemen within six
20         If not, we notify the veteran about what his rights               20   months of discharge now have the opportunity through VA and the
21   are, if he wants to obtain other representation.                        21   military, to file a claim. And it's a win-win for everybody
22   Q Does the length of time it takes to get a decision from               22   because the service medical records are there, the veteran has
23   the CAVC influence your advice to veterans?                             23   advice and has time to present evidence, he gets a discharge
24   A Not really from the CAVC.                                             24   examination that is good for his -- for the military, but also
25   Q You also mentioned that you review rating decisions from a            25   meets the requirements of the ratings schedule.


                                                                       194                                                                          196
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1          So, basically it's a complete package that goes to                1    Assistance Act letter, which basically is the seven-page letter
2    the VA.                                                                 2    which says, "What else have you got?"
3    Q And among the 680 cases that you currently have pending,              3    Q     And upon receiving a VCAA letter, what happens next?
4    are some of the veterans that you represent only seeking                4    A     Basically the veteran, when he receives that letter, the
5    service connection from the VBA in order to get access to free          5    last page of that letter has two boxes to check. One is "I
6    health care from the VHA?                                               6    have nothing else, please continue to process my claim." The
7          MR. WILTSIE: Objection, Your Honor. Leading the                   7    other is, "Give me another sixty days to process my claim."
8    witness.                                                                8             If he doesn't return that page, then the VA is
9          THE COURT: What was the question again?                           9    obligated to wait sixty days, just in case he has something
10         MR. HASSANEIN: Your Honor, I asked if a portion of                10   additional to submit.
11   the veterans that he represents are seeking service connection          11            THE COURT: Tell me, you are separate and distinct
12   from the VBA in order to get health care from the VHA.                  12   from the VA. Are you?
13         THE COURT: Overruled. Proceed.                                    13            THE WITNESS: Correct. I'm a service organization,
14         THE WITNESS: Again, from my regular claims I                      14   representing veterans to the VA.
15   receive, I do run into that situation. Of course, VHA is                15            THE COURT: A charitable organization?
16   providing services to the OEF/OIF veterans, but other veterans,         16            THE WITNESS: Right.
17   sometimes the reason they apply for disability benefits is to           17            THE COURT: Now, are you located near a VA center?
18   meet the criteria for VHA eligibility.                                  18            THE WITNESS: I am inside the VA regional office
19   BY MR. HASSANEIN                                                        19   building.
20   Q When a veteran walks into your office, what's the first               20            THE COURT: You are inside the regional office of the
21   thing you do?                                                           21   VA.
22   A Well, the first thing is we basically get the declaration             22            THE WITNESS: Yes.
23   of representation, so we can discuss his issues and his case.           23            THE COURT: But you are not a part of the VA.
24   And then we check on VA systems to see if he already has                24            THE WITNESS: Correct.
25   something pending with another organization, or a phase in the          25            THE COURT: Now, when a soldier is discharged, he


                                                                       197                                                                          199




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    appeal process, or if he already had a claims file from a prior         1    goes to the VA? Or does he come to you first?
2    claim however many years ago. Trying to identify, you know, to          2             THE WITNESS: We recommend they come to us. Because,
3    help the VA identify his records.                                       3    again, we're his advocates, we can assist them with their
4          And then, we discuss what his situation is, what                  4    claim.
5    disabilities he feels he has. And I explain the process, and            5             THE COURT: Does the VA tell them to come over to see
6    what we need to do to be successful in the process.                     6    you, or what?
7    Q Do you explain how long it takes to go through the                    7             THE WITNESS: The VA can assist them. But again,
8    process?                                                                8    they also can refer them to the service organizations.
9    A I -- frequently that's the veteran's biggest question, is             9             THE COURT: Uh-huh. Okay.
10   how long it's going to take. And unfortunately, the answer is           10            THE WITNESS: And again, a lot of my work is
11   it all depends, because there are so many variables that go             11   generated by our service officers that are located at San
12   into the process on an individual claim basis.                          12   Antonio, at the two military --
13   Q Do you assist the veteran with filling out the application            13            THE COURT: What would be the amount of work that
14   for original -- for an original claim?                                  14   you're doing, the VA would be doing, too?
15   A Right. We -- we sit down together and complete the VA                 15            THE WITNESS: Right. You know, but again, we're --
16   Form 21-526, original application form.                                 16   you know, we have more time, we can explain to the veteran the
17   Q And after a veteran files his application, his or her                 17   process better. And also we're at -- we're his advocates,
18   application, what happens next in the process?                          18   we're there to explain the process to him, and assist him in --
19   A Again, the veteran has an opportunity to submit at that               19            THE COURT: But you are within the same environment
20   time, any evidence he has, or a release of information -- part          20   of the VA.
21   of the application is a release form, so the VA can obtain any          21            THE WITNESS: Correct.
22   private records.                                                        22            THE COURT: Okay.
23         Basically I explain to him that the first thing he's              23   BY MR. HASSANEIN
24   going to hear from the VA is "Yes, we have your claim," and             24   Q     So the 60-day period or waiting period after receiving a
25   they are going to issue the VCAA, the Veterans Claims                   25   VCAA letter is waivable by the veteran, right?


                                                                       198                                                                          200
                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    A Yes, it is.                                                           1    provides VBA, you know, the authority to make a decision on
2    Q And what are the -- let's use a PTSD applicant as an                  2    that case.
3    example. What are the primary aspects of developing a claim             3    Q   So the decision-maker, i.e. the rating specialist, is
4    for PTSD disability compensation?                                       4    anonymous to the claimant.
5    A As has been said earlier, the three things for -- required            5    A   Correct.
6    are a stressor event in service, that can be verified; a                6    Q   And once the rating specialist makes a decision, what
7    current diagnosis of a disability; and medical nexus opinion            7    happens next?
8    relating the stressor to that disability.                               8    A   Then the case -- in most cases, the service organization
9    Q And the medical examination is provided by whom?                      9    has a chance to review the case -- again, as I do, online. On
10   A The Department of Veterans Affairs. Or their contractor,              10   the predischarge cases, we also get a chance to review the case
11   the QTC company.                                                        11   before it's promulgated. And if we see something out of line,
12   Q Is that what is referred to as a C&P exam?                            12   we try to get it corrected.
13   A Yes, it is.                                                           13   Q   You try to get it corrected before the veteran is notified
14   Q And, in order to prove a stressor, what types of documents            14   of the decision?
15   would be needed to do that?                                             15   A   If it's something egregious and will impact the veteran's
16   A Well, the easiest one is, you know, if the veteran has the            16   benefits, then, you know, we can ask the rating specialist or a
17   certain medals, you know, the combat infantry badge, the combat         17   supervisor or somebody if they will take another look at this
18   action ribbon, combat medic, and of course Purple Heart, are            18   and try to fix this.
19   some of the medals that verify that a stressor events occurred.         19          THE COURT: Is it easier for your work, the fact that
20         If not, there are other, you know, ways that the                  20   the veteran's Purple Heart -- has a purpose heart? Because
21   veteran can submit the information to the VA.                           21   that would pretty much designate the stressor, wouldn't it?
22   Q What are some of those other ways?                                    22          THE WITNESS: Right. That's one -- you know, those
23   A Basically, the VA, as part of the Veterans Claims                     23   veterans that I represent that have Purple Heart, you know, and
24   Assistance Act letter, will also attach a stressor development          24   a lot of them come to come to us, since that's our
25   form, which basically asks the veteran to relate the details of         25   organization, they -- you know, the stressor part of the


                                                                       201                                                                          203




                                4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    the stressor event, so it can be verified. Either based on the          1    equation is generally, you know, not a real problem for us.
2    information there, or as we were saying earlier, the JSRRC.             2    You know, because of the presumptions the VA has.
3    Q So these are records within the control of the federal                3           THE COURT: Uh-huh.
4    government?                                                             4    BY MR. HASSANEIN
5    A The -- basically what you are saying is -- you know, most             5    Q   And if a veteran is dissatisfied with the decision that is
6    of those records are available at various resources. You know,          6    promulgated, what recourse does he or she have?
7    again, the VA offers websites in their rating job aids that             7    A   Basically, he has a year from the date of that decision to
8    show some of the places you can research to verify some of the          8    file his Notice of Disagreement.
9    events, as well as turning them over to the JSRRC, if there's           9    Q   I might just refer to the timeline --
10   sufficient information for them to research it.                         10   A   Sure.
11   Q Okay. After the claim is fully developed, we have a                   11   Q   -- that everyone's been looking at today. Are you able to
12   medical opinion or examination, the records have been                   12   see it from that far away?
13   collected. What happens next?                                           13   A   Yes, sure.
14   A Then, when the capability is there to get to the case,                14   Q   So we are now in this one-year period, between the
15   then the rating specialist makes a decision on the case.                15   regional office decision and the Notice of Disagreement. Is
16   Q And a rating specialist is somebody that works at the VBA,            16   that right?
17   regional office?                                                        17   A   Again he has up to a year, but most of them are obviously
18   A Yes. He or she is the decision-maker on, as -- on behalf              18   much, you know, sooner, you know, from when the decision is
19   of the VA on that case.                                                 19   made for the veteran to say "I don't like this decision."
20   Q Is the claimant ever aware of who specifically is deciding            20   Q   Okay. And what aspects of a regional office decision are
21   his case?                                                               21   appealable?
22   A No, the decisions are basically made under the authority              22   A   Basically, you know, whether or not, you know, it's
23   of the service center manager. Under -- all the letters go out          23   service-connected, the level of evaluation, and the effective
24   with the service center manager's name on them.                         24   date of benefit.
25         And again, it's -- that's whose signature authority               25   Q   And, by "level of evaluation," do you mean the precise


                                                                       202                                                                          204
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    rating assigned to the claim?                                          1    Q   And, Statement of the Case would be issued if the regional
2    A For each individual disability, the veteran is assigned a            2    office continued to disagree with the alleged inadequacies of
3    rating percentage based on the VA rating schedule.                     3    the regional office decision?
4    Q Is it from zero to 100 percent?                                      4    A   Correct. The statement of the case is a document which
5    A Right. There's different levels for different                        5    lists the evidence that was reviewed, the -- all the potential
6    disabilities.                                                          6    regulations that impact that -- the decision and the rationale
7           THE COURT: Who assigns that?                                    7    for the decision. It's a more detailed explanation of the
8           THE WITNESS: The rating specialist assigns that.                8    rating decision.
9           THE COURT: Is this one individual?                              9    Q   And if the veteran, after receiving statement of the case,
10          THE WITNESS: Correct.                                           10   is still dissatisfied with the regional office decision, what
11          THE COURT: Uh-huh.                                              11   recourse does he or she have?
12   BY MR. HASSANEIN                                                       12   A   Then, the last page of the statement of the case is a VA
13   Q How many rating specialists are in a given regional                  13   Form 9, which is the substantive appeal form, which, as we have
14   office?                                                                14   said, the veteran has a year from the date of the original
15   A It varies, based on the size and the workload of the                 15   decision or sixty days from the date of the issuance of the
16   regional office. You know, there are, you know, very small             16   Statement of the Case, whichever is later, to submit.
17   regional offices with just a handful of rating specialists, to         17   Q   In practice, is the day to file a Form 9 -- Form 9 ever
18   offices with well over a hundred rating personnel.                     18   within a year of that original decision?
19   Q How many rating specialists are in the Houston regional              19   A   Because of the workload, and, you know, the numbers on the
20   office?                                                                20   time to issue the statement of the case, it's extremely rare
21   A I'm not sure what the exact figure is. I would say, you              21   that a -- that date would come into play.
22   know, there's three ratings boards, there's probably 15 to 20          22   Q   So typically, a veteran has sixty days to file a Form 9,
23   people on each rating board, plus the decision review staff.           23   is that right?
24   So, you know, probably 80 to a hundred.                                24   A   Correct.
25          THE COURT: What do you mean by "rating board"?                  25   Q   Can you submit additional evidence with a Form 9?


                                                                      205                                                                          207




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1           THE WITNESS: Again, --                                          1    A   Yes. Throughout the process, it's relatively rare that,
2           THE COURT: Is that the individual?                              2    you know, the veteran at that point is submitting -- submits
3           THE WITNESS: The individual is one of the people                3    additional evidence.
4    on -- on -- The rating board is the part of the adjudication           4    Q   But if a veteran does submit new evidence, what does the
5    division that makes these rating decisions. And, and, you              5    VA need to do to respond to that evidence?
6    know, each individual that's on the board, you know, is a              6    A   The VA again can say -- you know, grant, do further
7    rating specialist.                                                     7    development, or if they continue to deny the claim, they issue
8           THE COURT: So, but the -- the decision doesn't go to            8    a supplemental Statement of the Case, indicating how they
9    the board, it goes to an individual.                                   9    reviewed that additional evidence.
10          THE WITNESS: Right.                                             10         And then, you know, why they still -- you know, same
11          THE COURT: Okay.                                                11   thing, the evidence, the rules, the decision, and the rationale
12          THE WITNESS: Correct.                                           12   for the decision.
13   BY MR. HASSANEIN                                                       13   Q   So, a Supplemental Statement of the Case is only issued
14   Q What happens after a Notice of Disagreement is filed by a            14   with when no additional evidence is submitted?
15   veteran?                                                               15   A   Supplemental Statement of the Case is issued when some
16   A Basically, you know, the case is placed under control in             16   additional evidence is received.
17   the VACOLS system. And when the appellate portion of the               17   Q   So if no additional evidence is submitted, a Supplemental
18   rating board get to it, then they can either, say, "Oops, we           18   Statement of the Case would never be issued. Is that right?
19   made a mistake, and based on some additional evidence you              19   A   Correct.
20   submitted, we can grant the benefit."                                  20   Q   Once any evidence gathering is done, after a veteran has
21             They can do the additional development in the case,          21   filed a Form 9 substantive appeal, and perhaps a supplemental
22   whether it's for, you know, further examination or additional          22   Statement of the Case is issued, is there anything else that
23   medical records or whatever.                                           23   needs to happen before the claim is certified to the Board of
24          Or, the third action they can take is issue the                 24   Veteran Appeals?
25   Statement of the Case.                                                 25   A   Again, basically it goes through the certification


                                                                      206                                                                          208
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    process, when they get to that -- you know, case in the                 1    A   I was the service center manager/adjudication officer.
2    workload.                                                               2    Q   Service center's been mentioned a few times today. Can
3    Q What does it mean to certify a case to the BVA?                       3    you explain what the veteran's service center is?
4    A Basically the certification process is a VA form, I                   4    A   The veterans service center is the portion of the regional
5    believe it is Form 8, that basically they check off, you know,          5    office that is responsible for the processing of compensation
6    that we did all these things.                                           6    and pension benefit claims.
7          And they, among other -- one of the things is to give             7    Q   And those are the claims we have been discussing today,
8    the case to the representative, if the veteran has one, to              8    right?
9    prepare a VA Form 646, where any additional argument can be             9    A   Correct.
10   supplied by the representative.                                         10   Q   How long did you hold that position at the Buffalo
11   Q And once certified to the BVA, what happens next?                     11   regional office?
12   A Basically, you know, it becomes the responsibility of the             12   A   I became the adjudication officer before they reformatted
13   Board of Veterans Appeals, and, you know, if no hearings or             13   into the veterans service centers, in May of 1991. And I
14   whatever are requested, it goes directly to the board for their         14   retired from VA in August of 2001.
15   action in the process.                                                  15   Q   Did you hold a position at the VA prior to working at the
16   Q And the BVA can either grant, deny, remand a claim?                   16   Buffalo regional office?
17   A Right. Well, basically once it arrives at the board,                  17   A   Correct. I was the adjudication officer at the Salt Lake
18   again, it goes to the service organizations, if he has one.             18   City regional office from 1984 until 1991.
19   And that's what I do when I'm in Washington. And we have one            19   Q   Did you have a position at the VA prior to that?
20   more chance to write an informal hear presentation on behalf of         20   A   Prior to that, I worked in -- as a legal consultant in the
21   the veteran.                                                            21   Compensation and Pension service.
22         Then it goes, and -- and sits at the board and                    22   Q   What were your responsibilities in that role?
23   they -- the board works their case in docket order, oldest              23   A   I was on the computer systems staff as basically the
24   first. And so, you know, it's just when they get to that date           24   liaison for the field claims processors to the computer people,
25   in the docket that they are going to be able to work that case.         25   about what our need -- the needs were from the computer people


                                                                       209                                                                          211




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    Q Do you know where are the BVA is, what date, as of today,             1    to process, and, you know, move into computer processing of
2    the BVA is deciding claims?                                             2    benefits claims.
3    A I'm not sure what it is, as of today. Last I was looking              3    Q   And in this role, you were working at the Central Office
4    at this, a few months ago when I was deciding when I was going          4    in Washington, D.C.?
5    to make my next trip, the board was working on docket dates of          5    A   Yes, I was.
6    late 2005.                                                              6    Q   Are you familiar with a system called WIPP?
7    Q Late 2005. And, when was the last time you were there?                7    A   That was one of the projects that I worked on. In fact,
8    A I was there in -- the last time was last week of                      8    there were four or five of us that were the primary people that
9    September, last fall. I'll be going back in May.                        9    created the WIPP system as a management tool.
10   Q And if the BVA elects to remand a case, where is it                   10   Q   Is that an acronym?
11   remanded to?                                                            11   A   That's one of the better acronyms we thought we came up
12   A The bulk of them go to the Appeals Management Center in               12   with because of, you know, the whip, but basically it stands
13   Washington. There are certain types of cases that get remanded          13   for Work in Process Pending.
14   to the regional office.                                                 14   Q   Can you, in broad terms, describe how that system is used
15   Q And why would a case be remanded to a regional office                 15   at the VA?
16   instead of the AMC?                                                     16   A   It was developed, you know, basically primarily to track
17   A There, there's -- again, as relatively rare. In most                  17   the entire workload of veterans benefits claims from date of
18   cases it's something like they want to clarify whether the              18   claim, you know, through the entire process. And, it was set
19   veteran wanted a travel board hearing or if he wanted a hearing         19   up basically as a management tool.
20   before the Board of Veterans Appeals, or something of that              20            My input, having been a first-time super prior to
21   nature.                                                                 21   that time, was to tell them I needed something to know what
22   Q Where did you work before becoming a national service                 22   work our unit, you know, had to accomplish. And then from
23   officer?                                                                23   that, you know, we worked on, you know, the claims. And it can
24   A I worked at the VA regional office in Buffalo.                        24   generate lists of all the pending claims and how old they are,
25   Q What was your position there?                                         25   and, you know, that sort of thing.


                                                                       210                                                                          212
                                 4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1            So, so it was an effective day-to-day management                1    A   Right. This is one of the monthly reports that are
2    tool, and then also had some capabilities that higher-level             2    generated and available through the intranet.
3    management could use to monitor the individual station                  3    Q   Have you seen this precise March, 2008 report, recently?
4    operations.                                                             4    A   Yes, I have.
5    Q Is it still used today?                                               5    Q   On the VA Intranet?
6    A It's still being used as one of the primary tools. They               6    A   Yes.
7    are moving away from it into the newer VA systems. This is 25           7            MR. HASSANEIN: I would move Plaintiff's 1310 into
8    years later. But, again, it's still one of the primary                  8    evidence, Your Honor.
9    management systems to control VA workload.                              9            THE COURT: Received.
10   Q Does WIPP track claims through the appellate process?                 10           (Trial Exhibit 1310 received in evidence)
11   A It used to. But basically, the VACOLS system -- another               11   BY MR. HASSANEIN
12   acronym, but basically, that system, I believe it was in the            12   Q   Can you explain what this document is delineating?
13   late eighties, early nineties, became a separate system to              13   A   This particular document delineates the elapsed processing
14   track appeals. And they were removed from -- the WIPP system            14   days through the entire appeals process.
15   is a separate tracking and product system.                              15   Q   And is this data -- as of when?
16   Q At what point in this process (Indicating) does a claim               16   A   Fiscal year to date through March 2008. So on the federal
17   begin getting tracked in the VACOLS system?                             17   fiscal year, from October 1st through March 31st.
18   A It gets entered into VACOLS when the Notice of                        18   Q   So as of about three weeks ago, is that right?
19   Disagreement is received.                                               19   A   Correct.
20   Q Did you make use of reports from the VACOLS system while              20   Q   Focusing our attention on the column headers, it is broken
21   you were working at the Buffalo regional office?                        21   into two sections. Field and BVA. Within Field, there's a
22   A Yes. Obviously, it was a management tool to -- as that --             22   number of subcolumns, one of which is "NOD to SOC."
23   to control and monitor that part of my operations workload.             23           What is that?
24   Q Do you have access to reports from the VACOLS system as a             24   A   Basically that's, you know, the time it takes, according
25   national service officer today?                                         25   to VACOLS, from when the veteran filed his Notice of


                                                                       213                                                                         215




                                 4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    A It's obvious -- you know, obviously different access. I               1    Disagreement to when the Statement of the Case was released to
2    see -- I have access to specific data on Purple Heart claims,           2    the veteran.
3    since those are the ones we represent. But then, I also have            3    Q   Okay. And this report, just to back up one second, is
4    access to the VA reports generated from the VACOLS system.              4    listing data for each regional office. Right?
5    Q Where are you able to gain access to those reports?                   5    A   Correct. It is by area, and then regional office within
6    A Since I work in a VA regional office, I have access to the            6    the areas.
7    VA Intranet program, which gives me access into those records.          7    Q   And then, if you would turn the page to the page ending
8    Q Do you review those records on a regular basis?                       8    with Bates No. 2506, at the bottom, is that a nationwide
9    A Basically they are monthly -- most of the reports are                 9    average?
10   generated month -- at the first of the month. And, I review             10   A   Yes, it is.
11   them as part of my duties, so I can sort of keep an eye on the          11   Q   So the nationwide average for issuing a Statement of the
12   trends of appeal workload, because of these additional duties I         12   Case, after Notice of Disagreement, is how long?
13   have.                                                                   13           (Witness examines document)
14   Q Did you review those, some of those reports in preparation            14   A   Notice of Disagreement to Statement of the Case is 220
15   for your testimony today?                                               15   days.
16   A Yes, I did.                                                           16   Q   And the column to the right of that, "SOC to Appeal"?
17           MR. HASSANEIN: Can we bring up Plaintiffs' Exhibit              17   What does that refer to?
18   1310.                                                                   18   A   That's the time for -- between the issuance of the
19   BY MR. HASSANEIN                                                        19   Statement of the Case and the veteran filing their substantive
20   Q Mr. Hubbard, there is a binder of hard copies of the                  20   appeal VA Form 9, which is 43 days.
21   exhibits in front of you.                                               21   Q   And, the column to the right of that, "Appeal to BVA,"
22           Do you recognize this document, Mr. Hubbard?                    22   what does that refer to?
23           (Witness examines document)                                     23   A   That's the amount of time the substantive appeal is in the
24   A Yes, I do.                                                            24   regional office before it's certified to the Board of Veterans
25   Q Is this an example of a VACOLS report?                                25   Appeals.


                                                                       214                                                                         216
                                 4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    Q And as of the end of March, 2008, how long does that take?            1          THE COURT: Received.
2    A 573 days.                                                             2          (Trial Exhibit 1323 received in evidence)
3    Q And moving to the next column, to the right underneath the            3          THE CLERK: Counsel, what was that number again?
4    "BVA" header, there's a column "BVA Days Original Decision."            4          MR. HASSANEIN: Excuse me. We're on Plaintiffs'
5    What does that mean?                                                    5    Exhibit 1323.
6    A That's the number of days, once the case reaches the Board            6          THE CLERK: Thank you.
7    of Veterans Appeals, that it's at the Board of Veterans Appeals         7    BY MR. HASSANEIN
8    on -- on an original appeal.                                            8    Q   Mr. Hubbard, can you describe what this document
9    Q An original appeal, as opposed to an appeal --                        9    delineates?
10   A That's been remanded.                                                 10   A   This is basically the, you know, time for appeals
11   Q And how long does that take as of the end of March, 2008?             11   resolution, you know, for complete -- completion of action on
12   A 336 days.                                                             12   an appeal case.
13   Q And two columns to the right of that is another column                13   Q   Is that -- as of what date?
14   entitled "BVA Days Non-Org Dec." What does that mean?                   14   A   Fiscal year to date, March, 2008.
15   A That's the amount of time once the case has been sent back            15   Q   Again, the data is broken out by regional office, but
16   to the Board of Veterans Appeals, following remand by the               16   there is also a nationwide average?
17   Appeals Management Center or the regional office.                       17   A   Yes.
18   Q And how long does that currently take?                                18         MR. HASSANEIN: Can you bring the nationwide average
19   A 149 days.                                                             19   closer to the header titles on the screen?
20   Q In other words, it's -- the BVA is much quicker in issuing            20   BY MR. HASSANEIN
21   a decision once it's seen a case twice, than when it's seen a           21   Q   The first column is entitled "Prior to Form 9." What does
22   case for the first time?                                                22   that refer to, Mr. Hubbard?
23   A Well, it's more effect --                                             23   A   Basically that's -- the case is resolved prior to a
24           MR. WILTSIE: Your Honor, objection. He's leading.               24   substantive appeal.
25           THE WITNESS: Basically this is a factor of the BVA              25   Q   So this might, for instance, be a case that the decision


                                                                       217                                                                         219




                                 4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    works cases in docket order, so, cases that's been -- that have         1    review officer elects to grant on behalf of a veteran?
2    been remanded will be older cases than cases originally coming          2    A   Yes.
3    up.                                                                     3    Q   Or it could also be a case where the veteran withdraws his
4    BY MR. HASSANEIN                                                        4    appeal, is that right?
5    Q The column on the far right, "Average BVA Days," is that              5    A   Correct.
6    averaging the previous two columns we have just discussed?              6    Q   And on average, nationwide, as of March, 2008, how many
7    A I believe that's where that number comes from.                        7    days is it taking to resolve such appeals?
8    Q And as of the end of March, 2008, the average amount of               8    A   Basically, 243 days.
9    time for the BVA to issue a decision, whether original or               9    Q   Okay. And the next column to the right, does that say
10   non-original, was what?                                                 10   "Failure to Respond to SOC"?
11   A 276 days.                                                             11   A   Yes.
12           MR. HASSANEIN: Can we bring up Plaintiffs' Exhibit              12   Q   Would that refer to Statement of the Case?
13   3523.                                                                   13   A   Correct.
14   BY MR. HASSANEIN                                                        14   Q   Is this an instance where a veteran does not file a
15   Q Do you recognize this document, Mr. Hubbard?                          15   Form 9?
16         (Witness examines document)                                       16   A   Correct. That's the -- basically the case is closed out
17   A Yes, I do.                                                            17   because the veteran hasn't responded within the sixty-day
18   Q It's another example of a VACOLS report?                              18   period.
19   A Yes, it is.                                                           19   Q   And as of March, 2008, what is the nationwide average for
20   Q Have you seen this report recently on the VA Intranet?                20   such claims?
21   A Yes, I have.                                                          21   A   279.8 days.
22   Q I would like to turn your attention to the third-to-last              22   Q   Is that measured from the date of the Notice of
23   page of the report, ending in Bates No. 2552.                           23   Disagreement?
24           MR. HASSANEIN: Actually, Your Honor, I would move to            24   A   Yes.
25   enter this into evidence.                                               25   Q   And the next column to right is entitled, "After Form 9


                                                                       218                                                                         220
                               4/21/2008 Trial Transcript                                                     4/21/2008 Trial Transcript


1    Received," what does that mean?                                         1    Q   All right. Can you describe what this document is
2    A Basically the case is resolved, after -- after the Form 9             2    delineating?
3    is received, but before, you know -- without -- without sending         3    A   Basically, this is the actual final Board of Veterans
4    it on to the board.                                                     4    Appeals decisions, broken down by regional office and area.
5    Q This is between the Form 9 filing and certification, is               5    Q   Is it breaking out the decisions by how the BVA disposed
6    that right?                                                             6    of the case?
7    A Yes.                                                                  7    A   Correct. Whether they were allowed, denied or remanded.
8    Q And how long does that take as of -- how long does such               8    Q   And if we turn to the following page, ending with Bates
9    cases get resolved as of March, 2008?                                   9    No. 2492, this is, again, are we seeing a nationwide average on
10   A 788.3 days.                                                           10   the bottom?
11   Q Okay. The next column is "BVA Decisions." What does that              11   A   Yes, we are.
12   mean?                                                                   12           MR. HASSANEIN: Your Honor, before I forget, I will
13   A Those are the number of cases that have been decided at               13   move this document into evidence.
14   the board.                                                              14           THE COURT: Received.
15   Q So these are cases that actually result in the BVA issuing            15        (Trial Exhibit 1039 received in evidence)
16   a decision.                                                             16        (Short off-the-Record discussion)
17   A Yes.                                                                  17           MR. HASSANEIN: Can you bring the "Nationwide
18   Q And on average -- excuse me, let me back up.                          18   Average" to the header row? As well as the two rows above,
19         Is this measured also from the date of the Notice of              19   "Nationwide", "AMC" and "RO," totals from ROs.
20   Disagreement?                                                           20   BY MR. HASSANEIN
21   A Yes, I believe so.                                                    21   Q   Mr. Hubbard, does the rate of remands differ, depending
22   Q And as of the end of March, 2008, how long on average,                22   upon whether the BVA decides a case received from a regional
23   nationwide, does it take the BVA to issue a decision after              23   office versus a case that has previously been remanded to the
24   Notice of Disagreement is filed?                                        24   Appeals Management Center?
25   A Unfortunately, it's 1419 days.                                        25   A   They differ slightly.


                                                                       221                                                                          223




                               4/21/2008 Trial Transcript                                                     4/21/2008 Trial Transcript


1    Q How many years is that?                                               1    Q   And what is the remand rate at the BVA for a case received
2    A Around four years, I would say.                                       2    from a regional office?
3    Q This is from -- from this point in time on the timeline               3    A   According to this document, 41 percent.
4    (Indicating), the filing of the Notice of Disagreement to               4    Q   And what's the remand rate for a case received from the
5    receiving a BVA decision (Indicating), according to this                5    appeals management center?
6    document, is 1419 days.                                                 6    A   It's still being remanded, 27 percent.
7    A That's correct.                                                       7    Q   And the cases from the Appeals Management Center, these
8    Q The column to the right of that is "After BVA Remand."                8    are cases that the BVA has already remanded to the AMC
9    What does that mean?                                                    9    previously, correct?
10   A Those are the cases where the case has been remanded to               10   A   Yes, they are.
11   the -- to the Veterans Benefit Administration, either at the            11   Q   And the nationwide remand average as of March, 2008, is
12   Appeals Management Center or the regional office.                       12   what?
13   Q And, on average, nationwide, how long is it taking as of              13   A   Well, factoring in both the -- those from the regional
14   March, 2008, for such claims to be resolved?                            14   offices and those from the AMC that have already been remanded
15   A 1957 days.                                                            15   once, is 37 percent.
16         MR. HASSANEIN: Can we pull up Plaintiffs' Trial                   16   Q   And the -- the column "Allowed," what does that mean?
17   Exhibit 1039?                                                           17   A   That's the number, the percentage of cases that have been
18   BY MR. HASSANEIN                                                        18   granted.
19   Q Do you recognize this document, Mr. Hubbard?                          19   Q   So is this a situation where the BVA has overturned the
20   A Yes, I do.                                                            20   original decision?
21   Q Is this another document that you have seen recently on               21   A   Yes.
22   the VA's Intranet?                                                      22   Q   And does the rate of overturning the original decision
23   A Yes, I have.                                                          23   vary between regional offices and AMC?
24   Q Another example of a report from the VACOLS system?                   24   A   No, it's still -- it's at 22 percent for both.
25   A I believe that's where it's generated from.                           25   Q   Combined, 22 percent and 37 percent, is roughly -- what?


                                                                       222                                                                          224
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    59 percent?                                                             1    document, are remands pending on average at the AMC?
2    A Fifty-nine percent, yes.                                              2    A   352 days.
3    Q Which would mean the rate on demonstrative P1278 of 57.2              3    Q   What's the difference between average days pending and
4    is actually too low. Isn't that right?                                  4    average days to complete?
5    A Slightly, yes. So far this fiscal year.                               5    A   The average days pending, you know, includes the entire
6          MR. HASSANEIN: Can we bring up Plaintiffs' Trial                  6    range of cases that have not been acted on, so it -- you know,
7    Exhibit 1318?                                                           7    from the oldest case to the newest case are all factored into
8    BY MR. HASSANEIN                                                        8    the average.
9    Q Do you recognize this document, Mr. Hubbard?                          9    Q   So if a case was remanded yesterday, it would only have
10   A Yes, I do.                                                            10   been pending for one day, and that would get averaged into this
11   Q It's another document you have seen recently on the VA                11   number, is that right?
12   Intranet?                                                               12   A   Yes.
13   A Yes, I have.                                                          13   Q   Whereas average days to complete would not include such a
14         MR. HASSANEIN: I would move Plaintiffs' 1318 into                 14   recent remanded claim, correct?
15   evidence, Your Honor.                                                   15   A   Right.
16         THE COURT: Received.                                              16   Q   So, average days pending is always going to be lower than
17         (Trial Exhibit 1318 received in evidence)                         17   average days complete. Is that right?
18   BY MR. HASSANEIN                                                        18   A   If they work in date order, yes.
19   Q Mr. Hubbard, I would focus your attention on the                      19   Q   And do they work in date order?
20   second-to-last page of this report, ending with Bates No. 2569.         20   A   Generally, yes.
21         Can you describe what this report is delineating?                 21           MR. HASSANEIN: Can we pull up Plaintiffs' Exhibit
22   A It's the workload report of the number of appeals pending,            22   1174?
23   nationwide, and by regional office.                                     23   BY MR. HASSANEIN
24   Q And it's data as of when?                                             24   Q   Do you recognize this document, Mr. Hubbard?
25   A As of end of month, March, 2008.                                      25   A   Yes, this is VA Form 9. The substantive appeal form.


                                                                       225                                                                          227




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    Q And again, it's broken out by regional office, and there              1    Q   You help veterans fill out forms of this kind?
2    is a nationwide average at the bottom, correct?                         2    A   Yes, yes, I do. On a frequent basis.
3    A Yes.                                                                  3            MR. HASSANEIN: Your Honor, I would move Plaintiffs'
4    Q Focus your attention on the column entitled "RO Remands               4    1174 into evidence.
5    Pending." What does that mean?                                          5            THE COURT: Received.
6    A Those are the cases we have mentioned before that have                6         (Trial Exhibit 1174 received in evidence)
7    been remanded to the regional offices rather than to the                7    BY MR. HASSANEIN
8    Appeals Management Center.                                              8    Q   I need to focus your attention on Section 8, entitled
9    Q And the column on the far right, "VBA AMC Remands                     9    "Hearing."
10   Pending," does that refer to the Appeals Management Center?             10           Is this the first opportunity for a veteran to
11   A Correct.                                                              11   request a hearing before the Board of Veteran Appeals?
12   Q So from this document, we can tell that there is a                    12   A   Yes. He can have a decision review officer hearing prior
13   difference, in fact, between the number of cases pending at             13   to this. But this is the formal form for a Board of Veterans
14   regional offices versus the AMC, right?                                 14   Appeals hearing.
15   A Yes.                                                                  15   Q   And, there are different types of hearings on this form.
16   Q And how many are currently pending, how many remands are              16   Right?
17   currently pending nationwide out of regional offices?                   17   A   Correct.
18   A I believe it's 4250.                                                  18   Q   Can you describe them?
19   Q And, in contrast to that, how many remands are currently              19   A   Basically, the veteran has the option of not having a
20   pending at the AMC?                                                     20   hearing; he can have a hearing before the board in Washington,
21   A 19967.                                                                21   D.C., but few veterans do that because it comes at their
22   Q And, on average, according to this document, how long are             22   expense.
23   remands pending at regional offices?                                    23           Or he can have a Board of Veterans Appeals hearing at
24   A I believe, 535 days.                                                  24   the local regional office, before a board member or members of
25   Q In comparison of that, how long, according to this                    25   the board.


                                                                       226                                                                          228
                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1    Q Do you give advice to veterans on which option to select?            1    BY MR. HASSANEIN
2    A Yes, I do.                                                           2    Q   Let's start with the column entitled "Video." Are these
3    Q And what, what kind of advice would you give?                        3    the video conference hearings you just mentioned?
4    A Well, traditionally, we didn't encourage veterans to have            4    A   I didn't really describe the video conference much.
5    hearings because of the time it took to get them scheduled,            5    Basically, the Board of Veterans Appeals also offers the
6    the -- the Board of Veterans Appeals, because of the expense           6    veteran the opportunity, rather than to wait for a travel board
7    and all that, you know, doesn't come out to the regional               7    to visit the station, to have a video conference hearing, where
8    offices particularly often. And, if the evidence was -- was            8    the veteran is at their local regional office, the member of
9    appropriate in the file, as written, traditionally we didn't           9    the board is at the BVA in Washington, and they can see each
10   advise veterans that.                                                  10   other on videos, and basically have this face-to-face hearing
11           Only in cases where the veteran could either express           11   over the video conferencing system.
12   his claim better orally or there were certain -- the nature of         12   Q   And, as of the end of March, 2008, according to this
13   the disability, for example, scarring or some physical                 13   document, how many days on average are requests for video
14   limitation, he might be able to show -- demonstrate to a board         14   hearings pending?
15   member a little bit more than the medical report showed.               15   A   458.
16   Q What advice do you give today, as opposed to                         16   Q   In comparison to that, how long, on average, according to
17   traditionally?                                                         17   this document, are requests for regular hearings pending?
18   A Today, more frequently, I do tell a veteran he might                 18   A   455.
19   want -- want to request a hearing, because there's a                   19   Q   So despite the fact that it takes roughly 455 days to
20   requirement on the Veterans Benefit Administration staff to            20   receive a hearing after requesting one on a Form 9, you are
21   certify those cases, so it might get -- so the board members,          21   still advising veterans that it is more likely that their claim
22   when they come, have sufficient cases to review.                       22   will be certified to the BVA faster?
23           And, and, you know, again, they might get processed            23   A   At the office that I currently work at, you know, that's
24   faster than waiting for certification to the board if he               24   the primary way of getting your case certified.
25   doesn't request a hearing.                                             25           MR. HASSANEIN: Can we bring up Plaintiffs' Exhibit


                                                                      229                                                                          231




                               4/21/2008 Trial Transcript                                                  4/21/2008 Trial Transcript


1            MR. HASSANEIN: Can we pull up Plaintiffs' Exhibit              1    1314?
2    1324.                                                                  2    BY MR. HASSANEIN
3    BY MR. HASSANEIN                                                       3    Q   Do you recognize this document, Mr. Hubbard?
4    Q Do you recognize this document, Mr. Hubbard?                         4    A   Yes, I do.
5    A Yes, I do.                                                           5    Q   Another example of a report you have seen recently on the
6    Q Another example of a report you have seen recently on the            6    VA Intranet?
7    VA Intranet?                                                           7    A   Yes, I -- I have.
8    A Yes.                                                                 8            MR. HASSANEIN: I would move, Your Honor, Plaintiffs'
9            MR. HASSANEIN: Your Honor, I would move Plaintiffs'            9    1314 into evidence.
10   Exhibit 1324 into evidence.                                            10           THE COURT: Received.
11           THE COURT: All right, received.                                11         (Trial Exhibit 1314 received in evidence)
12         (Trial Exhibit 1324 received in evidence)                        12   BY MR. HASSANEIN
13   BY MR. HASSANEIN                                                       13   Q   Again, I'm going to focus your attention on the
14   Q I want to focus your attention on the second-to-the-last             14   second-to-last page of this report, ending with Bates No. 2665.
15   page of the report, ending with Bates No. 2653.                        15           Can you describe what this document delineates?
16           Can you describe what this report delineates?                  16   A   This is a report of decisions made in the appellate
17   A This is the number of pending hearing requests before the            17   process by the decision review officers at the local regional
18   board, for veterans before the Board of Veterans Appeals.              18   office.
19   Q And this is data as of when?                                         19   Q   Is this part of the de novo review depicted on Plaintiff's
20   A As of end of month, March, 2008.                                     20   Demonstrative Exhibit 1278?
21   Q And again, it it's broken out by regional office, but                21   A   Yes. Correct.
22   there's also a nationwide average, correct?                            22           MR. HASSANEIN: Can we bring the "Nationwide" row up
23   A Correct.                                                             23   to the column headers, on the screen, please.
24           MR. HASSANEIN: If we could bring the nationwide                24   BY MR. HASSANEIN
25   average up to the headers on the screen.                               25   Q   The fourth column to the right is entitled "Death of


                                                                      230                                                                          232
                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    Appellant." What does that refer to?                                   1    remands due to the VA's failure to somehow notify the veteran?
2    A That's basically where the appellant passed away during              2    A   Right. They haven't provided notice, according to the
3    this portion of the appeal process.                                    3    board member.
4    Q It is just limited again to this de novo review portion of           4    Q   And, during this period, this three-month period from
5    the appeal process?                                                    5    January 1st through March 31st, 2008, according to this
6    A Right, prior to the certification to the board.                      6    document, how many remand reasons are due to a failure to
7    Q And, through March, 2008, according to this document --              7    notify?
8    actually, let me back up for a second. What is the VA's fiscal         8    A   2073.
9    year?                                                                  9    Q   And, four rows below "Duty to Notify" is a row entitled
10   A It's October 1st through the most recent month. Through              10   "Duty to Assist." Do you see that?
11   March 31st in this case.                                               11   A   Yes, I do.
12   Q Okay. So between October 1st, 2007 and March, 2008, how              12   Q   Does this row depict the number of remand reasons due to
13   many appellants have died during the de novo review stage of           13   the VA's failure to assist veterans?
14   the appellate review process?                                          14   A   Yes.
15   A 525.                                                                 15   Q   And, as of -- excuse me, between the period of January 1,
16   Q Okay. It might actually say "526."                                   16   2008, and March 31st, 2008, how many remand reasons are due to
17   A All right. 526.                                                      17   the VA's failure to assist veterans?
18   Q But, we're not picky.                                                18   A   10,977.
19           MR. HASSANEIN: Can we pull up Plaintiffs' Exhibit              19   Q   Turning to the second page, ending with Bates No. 2522,
20   1312?                                                                  20   there's another row entitled "Due Process." Do you see that?
21   BY MR. HASSANEIN                                                       21   A   Yes.
22   Q This is actually not in your binder, Mr. Hubbard, but I do           22   Q   Does this identify the number of remand reasons due to the
23   have some copies which I can share with you.                           23   VA's failure to follow due process?
24           THE CLERK: I need two copies.                                  24   A   Yes.
25                                                                          25   Q   And, between the period of January 1st, 2008 and


                                                                      233                                                                         235




                                4/21/2008 Trial Transcript                                                 4/21/2008 Trial Transcript


1    BY MR. HASSANEIN                                                       1    March 31st, 2008, how many remand reasons are attributable to
2    Q Do you recognize this document, Mr. Hubbard?                         2    due process violations?
3    A Yes, I do.                                                           3    A   3583.
4    Q Another example of a document you have seen recently on              4    Q   Can we bring up Plaintiffs' Exhibit 1320? Again, it's not
5    the VA Intranet?                                                       5    in your binder, but I have a copy for everyone.
6    A Yes, I have.                                                         6          THE COURT: Right after this, we will take our
7            MR. HASSANEIN: Your Honor, I would move Plaintiffs'            7    recess.
8    Exhibit 1312 into evidence.                                            8    BY MR. HASSANEIN
9            THE COURT: Received.                                           9    Q   Do you recognize this document, Mr. Hubbard?
10           (Trial Exhibit 1312 received in evidence)                      10   A   Yes, I do.
11   BY MR. HASSANEIN                                                       11   Q   It's another example of a report you have seen recently ON
12   Q Can you describe what this document details?                         12   the VA Intranet?
13   A This is an analysis of the Board of Veterans Appeals                 13   A   Yes, it is.
14   remand for the second quarter of the current fiscal year.              14         MR. HASSANEIN: I would move Plaintiff's Exhibit 1320
15   Q And, the first column says "Remand Reason." What is that?            15   into evidence, Your Honor.
16   A Basically, why the case was remanded either to the AMC or            16         THE COURT: Received.
17   to the regional office.                                                17        (Trial Exhibit 1320 received in evidence)
18   Q And the two far righthand columns refer to "Before                   18   BY MR. HASSANEIN
19   Certification" and "After Certification." What's the                   19   Q   Can you describe what this document depicts, Mr. Hubbard?
20   difference between those two?                                          20   A   This is report of the appellate workload within the
21           (Witness examines document)                                    21   Veterans Benefits Administration.
22   A I'm not sure.                                                        22         MR. HASSANEIN: If we could pull the "Nationwide
23   Q Okay. Looking in the column "Remand Reason," in larger               23   Average" row up to the column headers on the screen, please.
24   letters, the second row says "Duty to Notify."                         24   BY MR. HASSANEIN
25           Are these -- does this row identify the number of              25   Q   Under the -- on the top row, on the first page, to the


                                                                      234                                                                         236
                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    right, there's a header, "Substantive Appeals." And, below              1          Are you following me, Mr. Hubbard?
2    that, to the right, is a header "Pending." Perhaps we can               2    A   Yeah, I believe it's there.
3    highlight that on the screen.                                           3    Q   Yeah. And how many days, according to this document, is a
4           And then there are two subcolumns below "Pending,"               4    Form 9 appeal pending when it has a Supplemental Statement of
5    entitled "W/O SSOCs." Do you see that header, Mr. Hubbard?              5    the Case attached to it?
6    A Yes, I do.                                                            6    A   I was hoping you could bring it on the screen. It's a
7    Q Unfortunately this screen is slightly split, but let's                7    small print on this.
8    just begin with that row. What does "W/O SSOCs" refer to?               8          MR. HASSANEIN: The third page of this document,
9    A That's Without Supplemental Statement of the Case.                    9    Michael.
10   Q So these are Form 9s pending without a Supplemental                   10         THE WITNESS: Ah, much easier now. 623 days.
11   Statement of the Case, is that right?                                   11   BY MR. HASSANEIN
12   A Yes, that's correct.                                                  12   Q   Okay. So without a Supplemental Statement of the Case, on
13   Q And, we discussed this briefly before. But, a                         13   average, a Form 9 has been pending for 322 days; and when there
14   Supplemental Statement of the Case issues when a veteran                14   is a Supplemental Statement of the Case, on average, a Form 9
15   submits new evidence, is that right?                                    15   appeal has been pending for 623 days. Is that right?
16   A Right. When new evidence is considered that wasn't                    16   A   Yes.
17   considered in the initial Statement of the Case.                        17         MR. HASSANEIN: We can take your recess now, Your
18   Q Okay. So these are Form 9 appeals pending where no                    18   Honor.
19   evidence has been submitted by the veteran. Is that right?              19         THE COURT: Start at 9:15 tomorrow morning.
20   A Or a Supplemental Statement of the Case hasn't been issued            20         THE CLERK: All rise. Court stands in recess.
21   yet.                                                                    21        (Proceedings concluded at 4:50 p.m.)
22   Q Okay.                                                                 22
23   A It could be both.                                                     23
24   Q And, this is data as of when?                                         24
25   A As of end of month, March, 2008.                                      25


                                                                       237                                                                          239




                               4/21/2008 Trial Transcript                                                    4/21/2008 Trial Transcript


1    Q Nationwide, how many Form 9 appeals were pending without a            1                    I N D E X
2    Supplemental Statement of the Case?                                     2                                PAGE VOL.
                                                                             3    Opening Argument by Mr. Erspamer        34 1
3    A 38189.
                                                                                  Closing Argument by Mr. Lepley        56 1
4    Q And on average, how long were those appeals pending?
                                                                             4
5    A 320 days from receipt of the substance of appeal.                     5    PLAINTIFF'S WITNESSES                    PAGE VOL.
6    Q And again, average days pending would be lower than                   6    ABRAMS, RONALD B.
7    average days to complete, correct?                                           (SWORN)                             85 1
                                                                             7    Direct Examination by Mr. Erspamer         85 1
8    A Yes.
                                                                                  Voir Dire Examination by Mr. Wiltsie       93 1
9    Q I want to compare that to the column to the right, which
                                                                             8    Direct examination Resumed by Mr. Erspamer    96 1
10   is split on the screen, but the -- unfortunately this is the                 Direct Examination Resumed by Mr. Erspamer    108 1
11   way we received the document.                                           9    Cross Examination by Mr. Wiltsie         171 1
12          Half of it reads "With" and it follows on the next               10
                                                                             11   HUBBARD, DONALD A.
13   page. Can we bring up the next page? You can look at it in
                                                                                  (SWORN)                            191             1
14   hard copy as well, Mr. Hubbard.
                                                                             12   Direct Examination by Mr. Hassanein                     191   1
15          Are you able to read that header by looking at both              13
16   pages?                                                                  14                     - - -
17   A Yes. It's "Pending with Supplemental Statement of the                 15
                                                                             16
18   Case."
                                                                             17
19   Q Okay. And it also has a column indicating average days
                                                                             18
20   pending, correct?                                                       19
21   A Yes.                                                                  20
22   Q The third page of this document ending with Bates                     21
                                                                             22
23   No. 2600, has, I believe, at the bottom, the nationwide average
                                                                             23
24   for how many days Form 9 appeals with a Supplemental Statement
                                                                             24
25   of the Case were pending.                                               25


                                                                       238                                                                          240
                              4/21/2008 Trial Transcript


1
2                   EXHIBITS
3
4    TRIAL EXHIBITS                    IDEN     VOL. EVID VOL.
5    1275                                101     1
     1274                                109     1
6    425                                110     1
     423                                118     1
7    1310                                215     1
     2552                                219     1
8    1039                                223     1
     1318                                225     1
9    1174                                228     1
     1324                                230     1
10   1314                                232     1
     1312                                234     1
11   13290                                236     1
12
13                   _ _ _ _
14
15
16
17
18
19
20
21
22
23
24
25


                                                                      241




                              4/21/2008 Trial Transcript


1
2                 CERTIFICATE OF REPORTERS
3
4          We, the undersigned official reporters for the United
5    States District Court, Northern District of California, do
6    hereby certify that the foregoing proceedings were reported by
7    us, and were thereafter transcribed under our direction into
8    typewriting; and that the foregoing is a full, complete and
9    true record of said proceedings as bound by us at the time of
10   filing.
11
12
13             _____________________________________
14              BELLE BALL, CSR 8785, RMR, CRR
15
16             _____________________________________
17              DEBRA PAS, CSR 11916, RMR, CRR
18
19                Monday, April 21, 2008
20
21
22
23
24
25


                                                                      242
                                                   4/21/2008 Trial Transcript

                                  130 [126:14]                     [59:22,23] [60:20] [71:8,24]     2600 [238:23]
0                                 1310 [214:18] [215:7,10]           [147:11] [158:9] [185:18,22]   2653 [230:15]
                                    [241:7]                          [188:24] [189:23] [205:22]     2665 [232:14]
010 [126:15,25]                   1312 [233:20] [234:8,10]        20,000 [130:25]                   27 [37:18] [46:16] [148:22]
020 [126:15]                        [241:]                        20.200 [67:3]                      [224:6]
07 [:] [3:4] [169:6,7] [173:3]    1314 [232:1,9,11] [241:10]      20.202 [67:4]                     276 [218:11]
073758 [:] [3:4]                  1318 [225:7,14,17] [241:]       20.711 [67:6]                     279.8 [220:21]
07-3758 [:] [3:4]                 1320 [236:4,14,17]              200 [40:1]                        28 [65:9]
08 [169:7] [172:21]               1323 [219:2,5]                  2000s [124:4]                     291 [57:12]
                                  1324 [230:2,10,12] [241:]       2001 [:3] [42:13] [193:8]
1                                 13290 [241:11]                     [211:14]                       3
                                  1335 [110:8,9]                  2003 [44:25] [77:14]
1 [:] [67:13] [74:22] [118:6]     1339 [110:22]                   2004 [59:18] [63:11]              3 [85:25]
  [163:25] [235:15] [240:3,,,7    1341 [111:8,11]                 20044 [:]                         3,700 [59:21]
 ,,8,,9,,12] [241:5,,6,,7,,8,,9   14 [46:22] [60:9,10,13]         2005 [210:6,7]                    3.103 [67:19] [79:5]
 ,,10,,11]                          [63:12] [64:1,5] [105:14]     2006 [52:4] [172:20]              3.304 [101:18,21]
1,000 [36:20,22] [47:7]             [118:19] [130:11]             2007 [60:1] [63:13] [72:10]       3:09 [171:19]
  [55:20] [181:8]                 14.87 [127:1]                      [125:18] [161:19] [233:12]     30 [14:11] [33:7] [40:14]
1:30 [107:15] [108:2]             1410 [119:3,6,7]                2008 [:] [3:2] [44:25] [108:2]      [41:17] [100:2] [115:4]
10 [25:15] [33:3] [48:14]         1419 [37:12] [221:25] [222:        [215:3,16] [217:1,11]            [127:5] [158:4] [178:13,20]
  [55:2] [115:3,5] [147:11]        6]                                [218:8] [219:14] [220:6,19]      [188:23] [196:14]
  [152:13] [175:18] [188:21]      1472 [112:2]                       [221:9,22] [222:14] [224:11]   300,000 [38:12]
10,600 [72:9]                     149 [217:19]                       [225:25] [230:20] [231:12]     30s [115:10]
10,977 [235:18]                   14day [60:9] [63:12] [64:5]        [233:7,12] [235:5,16,25]       30some [14:11]
100 [99:15] [115:15,16]           14-day [60:9] [63:12] [64:5]       [236:1] [237:25] [242:19]      30-some [14:11]
  [189:9] [205:4]                 15 [142:22] [175:18] [188:21]   20420 [:]                         31 [5:9] [38:10]
100,000 [25:15] [32:9]              [189:3] [205:22]              20530 [:12]                       31st [215:17] [233:11]
  [44:11,12]                      16 [39:2] [47:16] [100:23]      2073 [235:8]                        [235:5,16] [236:1]
100percent [99:15]                  [158:17,19]                   21 [:] [3:2] [108:2] [162:3]      320 [238:5]
100-percent [99:15]               17 [17:18] [30:9] [31:11]          [193:3] [198:16] [242:19]      320,000 [38:11]
101 [:] [241:5]                     [41:9] [73:7]                 2122 [193:3]                      322 [239:13]
1039 [222:17] [223:15]            17,000 [59:22]                  21-22 [193:3]                     33 [47:8] [158:8] [159:22]
  [241:8]                         171 [240:9]                     215 [241:7]                         [179:9]
108 [240:]                        172 [126:19]                    21526 [198:16]                    336 [217:12]
109 [241:]                        18 [36:11]                      21-526 [198:16]                   34 [240:3]
10th [35:11]                      180 [44:11] [68:21] [69:11]     219 [241:]                        35 [37:16]
10year [55:2]                     180185 [68:21]                  22 [126:22] [162:4] [224:24       35.1 [147:1]
10-year [55:2]                    180-185 [68:21]                   ,25]                            352 [227:2]
11:15 [85:3]                      187 [140:5]                     220 [216:14]                      3523 [218:13]
11:36 [85:3]                      189 [44:8]                      221 [45:14]                       3583 [236:3]
110 [126:14] [241:6]              189.4 [43:9,17] [137:1,3]       221.1 [141:25]                    37 [224:15,25]
1154 [120:14]                     191 [240:12]                    223 [241:8]                       374 [42:14]
1174 [227:22] [228:4,6]           1945 [105:18]                   225 [241:]                        375 [164:3,5,6]
  [241:9]                         1957 [222:15]                   226.3 [46:6,13] [146:13]          38 [67:2] [99:21] [120:14]
118 [241:]                        1970s [122:19] [124:2]          2263 [112:5]                      38189 [238:3]
1191 [38:9]                         [125:3]                       2271 [112:6]
11916 [:] [242:17]                1977 [155:23]                   228 [241:9]                       4
11th [21:7] [22:11,12]            1980s [124:2]                   2286 [111:22,24] [112:5]
12 [44:25] [46:22] [74:6]         1984 [211:18]                   230 [119:6] [241:]                4 [74:8,11,20] [76:12] [152:
  [152:14]                        1988 [88:6]                     232 [241:10]                       14] [167:16,18] [188:22]
12:11 [107:18]                    1989 [40:1]                     234 [241:]                          [189:3,9,22]
120 [36:6] [69:5] [126:14]        1990s [124:4]                   236 [241:11]                      4.1 [67:1] [100:23]
1226 [116:8] [174:13,21]          1991 [211:13,18]                24/7 [60:3]                       4.16 [99:21,24,25]
1242 [33:2]                       19967 [226:21]                  242 [:]                           4.31 [67:1]
125 [68:19] [69:1,6,7,9]          1st [215:17] [233:10,12]        243 [220:8]                       4:50 [239:21]
125day [68:19]                      [235:5,25]                    2492 [223:9]                      40 [53:21] [99:23] [127:5]
125-day [68:19]                                                   25 [36:12] [71:14] [72:11]          [185:18,25] [186:2] [187:3]
126 [36:6] [55:20]                2                                  [74:12,13] [185:11,15,22]        [188:24]
1274 [101:8] [109:12,13,15]                                          [187:2] [189:23] [196:14]      41 [224:3]
  [241:]                          2 [:] [13:25] [74:20,22]           [213:7]                        4150 [:]
1275 [100:8] [101:5] [106:19        [118:6,7] [163:25]            2506 [216:8]                      420 [107:12]
 ,22] [109:11] [241:5]            2,000 [55:21]                   2522 [235:19]                     423 [118:5,8,15,17] [241:]
1278 [232:20]                     2,038 [46:9]                    2552 [218:23] [241:]              425 [:] [110:2,5] [116:7]
1279 [88:20]                      2:00 [15:22]                    2569 [225:20]                       [241:6]
1285 [33:1]                       2:55 [171:19]                   26 [13:25] [21:15]                4250 [226:18]
13 [46:22]                        20 [:] [6:18] [36:13] [39:2]    260,000 [83:23]                   43 [216:20]




                                                                                                                                    A.1
                                                  4/21/2008 Trial Transcript

440 [90:25]                                                         ,16] [93:15,21] [95:22]           [71:24] [74:8] [78:8] [87:4]
45 [172:22]                       7                                   [96:18] [100:20] [101:7]          [94:11] [112:17] [143:5,7]
450 [:]                                                               [108:7] [109:17] [122:16]         [144:5,8] [145:2] [146:15]
450,000 [44:25]                   7,500 [72:9]                        [123:16] [127:21] [128:7,10]      [151:18] [152:13] [174:15]
455 [38:7] [231:18,19]            7.09 [126:20]                       [131:14] [140:14] [141:2]         [180:3] [192:11] [195:18]
458 [231:15]                      70 [48:12] [99:23] [115:4]          [142:8] [145:20] [149:21,24]      [218:24] [221:15] [225:4]
46 [45:17,20]                       [162:9] [163:3] [184:14]          [150:24] [152:4] [153:2]          [233:8,16,22]
461 [17:17] [18:9] [30:3,21,23]   70s [123:10] [126:14] [162:         [155:5] [163:11] [165:15]      ad [32:14]
 [31:7,11]                         23]                                [168:21] [170:25] [171:23]     add [47:17] [75:21] [143:24]
475 [100:7]                       788.3 [221:10]                      [186:20] [240:6]                  [144:1,2] [158:20] [175:10]
                                  7th [10:17]                       a-b-r-a-m-s [85:10]                 [184:12]
5                                                                   absolute [75:11]                 added [59:21] [73:2]
                                  8                                 absolutely [31:22] [91:14]       adding [70:20] [72:24]
5.36 [37:23]                                                          [114:17] [123:12] [125:18]     addition [16:5] [106:18,24]
5.40 [127:2]                      8 [74:9] [209:5] [228:8]            [130:5] [163:5] [176:25]          [164:14]
5.58 [147:17,19]                  80 [60:17,23] [147:2] [205:24]    abuse [52:5]                     additional [65:21] [120:25]
50 [74:11,14] [115:4,15]          800,000 [176:5]                   academicians [65:1]                 [146:13] [157:21] [193:23]
  [157:19] [187:3]                810 [:19]                         accept [66:20] [103:6]              [199:10] [206:19,21,22]
501 [85:25]                       8130 [:]                            [132:14]                          [207:25] [208:3,9,14,16,17]
502 [61:6] [63:19] [67:10,19]     82 [173:12]                       accepted [66:18] [102:9]            [209:9] [214:12]
  [79:6]                          838,000 [71:13] [83:24]           accepts [113:10]                 addlestone [89:15]
5100 [173:4]                      85 [186:9] [240:7]                access [78:6] [111:14]           address [80:23]
5103 [115:24]                     8785 [:] [242:14]                   [197:5] [213:24] [214:1,2,4    addressed [38:25] [72:13]
511 [61:3] [63:18] [64:13]        883 [:7]                           ,5,6,7]                         adds [70:21] [114:10]
  [68:2]                                                            accident [106:3]                 adequate [40:18]
525 [233:15]                      9                                 accommodate [26:24]              adjudicate [87:10] [97:24]
526 [38:2] [233:16,17]                                                [29:16]                        adjudicated [92:16] [160:5]
535 [226:24]                      9 [45:18,22] [138:22] [143:18     accompanied [97:13]                 [175:19] [178:23]
554 [43:16] [139:21] [140:3        ,22,23] [145:3,11] [153:9,23]      [117:16]                       adjudication [37:10] [38:21
 ,8]                                [154:23] [159:5] [184:6]        accomplish [212:22]                ,25] [39:9,17] [40:8] [41:8,11]
56 [240:]                           [207:13,17,22,25] [208:21]      according [5:19] [8:21]             [42:22] [46:24] [47:6,25]
563.9 [46:12]                       [216:20] [219:21] [220:15,25]     [43:14] [44:12] [102:3]           [49:22] [50:7,8,22] [91:9]
57 [87:3] [158:4] [169:24]          [221:2,5] [227:25] [231:20]       [215:24] [222:5] [224:3]          [93:2,15] [95:8] [96:5]
  [193:14]                          [237:18] [238:1,24] [239:4        [226:22,25] [231:12,16]           [97:17] [120:4,10] [124:9,19
57.2 [47:10] [158:2,9] [225:       ,13,14]                            [233:7] [235:2,5] [239:3]        ,20] [127:22] [131:15]
 3]                               9.47 [127:2]                      accreditation [192:17,19]           [136:9] [150:15] [157:21]
573 [217:2]                       9:00 [:]                          accuracy [36:3] [48:13,14]          [169:10,18] [206:4] [211:12
58 [87:4]                         9:15 [239:19]                       [74:2] [76:11] [162:10]          ,17]
59 [225:1]                        9:25 [3:2]                        accurate [9:17] [11:14]          adjudications [67:5]
                                  90 [14:1,9] [60:19] [71:8]          [137:4,6] [138:22] [158:2]     adjudicator [94:3] [119:9]
6                                   [83:5] [144:1] [147:3]            [162:21] [185:20]                 [123:10] [134:4,11] [150:11]
                                    [187:12,14,20]                  acknowledge [68:7] [70:2]        adjudicators [48:3,7] [49:5]
6:00 [30:2]                       900,000 [45:2,3]                  acknowledged [111:3]                [122:7]
60 [8:4] [68:22] [71:8] [83:5]    90s [126:16]                      acknowledging [51:22]            adjudicatory [65:13] [70:3]
 [90:25] [99:22] [143:19]         91 [74:24] [159:5,9]              acronym [104:21] [182:25]        administering [41:17]
 [153:9] [154:21] [157:19]        91.2 [47:17] [158:20] [159:16]      [183:18] [196:17] [212:10]        [83:23]
 [183:20] [185:17] [200:24]       93 [240:]                           [213:12]                       administration [35:9] [39:13]
60day [200:24]                    94105 [:]                         acronyms [85:20] [212:11]           [66:3] [71:1] [87:24] [88:1,5]
60-day [200:24]                   94121 [:16]                       across [37:4]                       [94:24] [95:24] [107:5]
60percent [99:22]                 94596 [:]                         act [66:4] [78:7] [81:24]           [176:6] [222:11] [229:20]
60-percent [99:22]                94704 [:4]                          [199:1] [201:24]                  [236:21]
60s [162:23]                      96 [240:8]                        acted [79:17] [227:6]            administrative [40:14]
62 [184:14]                       9s [185:9] [237:10]               acting [58:6]                       [60:22] [80:12] [83:10]
620,000 [38:12]                                                     action [63:20] [67:17] [82:21]   administrator [64:23]
623 [239:10,15]                   A                                   [201:18] [206:24] [209:15]     administrators [28:13]
625 [144:5,22]                                                        [219:11]                       admirable [39:12] [42:16]
625.2 [45:24] [144:7]             a.m [:] [3:2] [85:3]              actions [62:14] [63:9] [81:14]      [50:20]
63.7 [47:13] [158:14]             abc [57:5]                        activities [57:18]               admission [35:10]
64 [146:1]                        able [7:1] [17:24] [26:8,20]      acts [49:16] [65:17]             admissions [39:3]
646 [146:1] [209:9]                 [27:3] [33:12] [82:17]          actual [68:21] [127:4] [146:     admitted [86:3]
650,000 [44:25]                     [104:16] [105:21] [204:11]       15] [166:25] [223:3]            admitting [104:9]
652 [144:4]                         [209:25] [214:5] [229:14]       actuality [155:8]                admonition [42:8]
670 [75:4]                          [238:15]                        actually [14:15] [16:9]          adopted [33:5] [61:14]
680 [196:1,11] [197:3]            above [44:25] [223:18]              [19:9] [39:23] [40:22]            [68:19]
                                  abrams [39:17] [40:7] [43:18]       [44:21] [52:15] [54:25]        adversarial [98:4,5,24]
                                    [48:16] [84:15] [85:5,10,11       [59:13,17] [63:1] [66:25]      adversary [65:18]




                                                                                                                                     A.2
                                                  4/21/2008 Trial Transcript

adverse [20:20,22,23]             agreement [6:9] [7:1] [20:16]    analysis [36:4] [48:11]             [70:10,11] [73:19] [74:19]
  [42:1]                            [92:12]                          [49:14] [142:23] [161:8]            [76:21,22] [77:9,16] [93:6,7]
advice [41:13] [88:15]            agriculture [66:4]                 [234:13]                            [108:21] [115:18] [117:8]
  [170:21] [194:23] [196:23]      ah [239:10]                      analyze [87:13]                       [130:25] [131:1] [133:10]
  [229:1,3,16]                    ahead [18:10] [31:5,10]          analyzes [88:14]                      [135:21] [138:20] [143:25]
advise [161:3] [170:21]             [38:15] [135:10] [143:17]      ancillary [102:22]                    [147:3,4] [157:25] [158:12]
  [195:19] [229:10]               aids [202:7]                     announced [109:25]                    [174:7] [175:5] [178:25]
advised [94:9]                    air [196:6]                      announces [188:17]                    [184:15] [186:9,13] [187:2]
advising [231:21]                 al [:] [:22] [3:5] [4:6]         annoyed [115:2]                       [188:15] [189:8] [190:12]
advocacy [83:16] [85:25]          albuquerque [92:21]              annual [193:16]                       [193:24] [194:5,7] [208:24]
advocate [88:14] [135:14]         allegation [26:18] [27:4,11]     anonymous [203:4]                     [209:13] [210:12,20] [213:
  [161:13] [175:22] [192:1]       allegations [56:10] [73:14]      answer [8:19] [9:16] [95:4,16]       14] [215:14] [216:25] [217:
advocates [:] [3:10] [88:15,17]     [79:19] [108:12]                 [154:9] [161:2] [171:8]            7,16,17] [219:10] [220:7]
  [106:4] [111:15] [133:10]       allege [25:1] [104:8,14]           [190:7,10] [198:10]                 [222:12] [223:4,24] [224:5
  [161:16] [200:3,17]             alleged [66:21] [106:5]          answers [45:24] [87:19]              ,7] [225:22] [226:8,10]
affairs [:15,] [192:2,14]           [108:22] [120:12] [121:9]        [136:10] [137:3] [146:12]           [228:11,14,23] [229:6]
  [201:10]                          [207:2]                          [147:16] [148:18]                   [230:18] [231:5] [234:13]
affect [69:19] [124:14]           alleges [103:8]                  anthrax [94:10]                       [237:1,18] [238:1,4,24]
  [127:11]                        alleging [104:7] [105:25]        antonio [196:5] [200:12]           appear [27:5] [77:10]
affected [76:20]                  allow [69:19] [78:23] [170:14]   anxiety [113:24]                   appearance [3:6] [34:25]
affects [50:13]                   allowed [14:7] [24:22]           anybody [62:12] [117:10]              [35:2,8,17] [53:10]
affirmed [185:11]                   [118:4] [122:20] [123:5]       anyone [54:8]                      appearances [:] [:1]
afford [83:18]                      [142:25] [151:5] [166:14]      anything [18:20] [25:7,12]         appeared [57:14]
afforded [68:4] [72:14]             [187:21] [223:7] [224:16]        [51:1] [69:16] [72:6] [74:16]    appears [163:21] [164:12]
  [77:13]                         allows [99:24] [102:22]            [83:10] [98:17] [122:12]         appellant [233:1,2]
afghani [91:7]                    alluded [47:25]                    [125:9] [129:2] [145:21]         appellants [233:13]
afghanistan [45:2] [55:3]         alludes [145:10]                   [152:18] [171:1,7] [208:22]      appellate [93:16] [115:6]
  [196:9]                         almost [31:18,19] [37:12,15]     anyway [34:9]                         [159:17] [176:15,16] [206:
afternoon [15:22] [191:16,17]       [42:24] [73:12] [117:12]       anywhere [69:11,12] [115:4]          17] [213:10] [232:16] [233:
again [7:5] [9:16] [24:17]          [157:19] [176:5]               apa [63:24]                          14] [236:20]
  [32:8] [37:17] [53:10]          along [18:14] [38:19] [41:13]    apart [166:9]                      appendix [123:24]
  [56:10] [59:11] [61:17]           [96:12] [152:18]               apologize [183:1]                  apples [72:24] [75:21]
  [64:10] [67:10] [69:7,9]        already [12:10] [14:11]          apparently [33:7]                  applesandoranges [75:21]
  [79:5] [82:7] [94:3] [100:1]      [17:12] [26:10] [33:7]         appeal [19:12] [24:8] [37:13]      apples-and-oranges [75:21]
  [114:7] [115:7] [130:13,14        [36:2] [59:12] [60:18]           [38:4] [45:6,22] [47:2]          applicant [201:2]
 ,16] [134:1] [135:6] [145:6]       [62:23] [75:6] [81:7,17]         [67:3] [68:16,17] [70:5,14]      application [79:4] [198:13,16
  [149:16] [151:24] [155:11]        [119:14] [140:8] [185:9]         [73:20] [74:9] [82:2] [115:17]     ,17,18,21]
  [169:8,15] [178:15,20]            [197:24] [198:1] [224:8,14]      [117:8] [133:6,13] [135:1,10     applied [125:1]
  [181:15] [184:9] [188:25]       alternative [29:13]               ,17] [139:5] [141:17] [143:18     applies [112:21] [172:12]
  [195:9,16,20] [196:15,19]       although [57:13]                  ,22] [144:17] [145:4] [151:18     apply [197:17]
  [197:9,14] [198:19] [200:3      always [60:3,7] [122:18]          ,19] [152:1,2,5,14] [153:9,21]    appoint [83:21]
 ,7,10,15] [202:7,25] [203:9]       [123:1] [153:8] [160:20]         [154:13,23,24] [157:24]          appointee [83:25]
  [204:17] [206:1] [208:6,25]       [227:16]                         [158:11] [159:1] [160:6,12       appointees [83:25]
  [209:18] [210:17] [213:8]       am [96:11] [151:5] [191:19]       ,15,16] [175:19] [176:19,20       appointment [60:9] [63:12]
  [219:3,15] [223:9] [226:1]        [199:18]                        ,21] [177:11] [178:23]            appointments [55:9]
  [229:23] [230:21] [232:13]      amc [131:5] [147:15,17,20]         [180:14,18] [181:18,24]          appreciate [7:2] [8:1] [14:5]
  [233:4] [236:4] [238:6]           [148:2,14] [149:13,15]           [182:5] [183:8,15] [184:7]          [32:25]
against [17:13] [22:19]             [210:16] [223:19] [224:8,14      [185:12,22] [188:10] [189:       approach [35:18] [57:21]
  [48:3] [59:7]                    ,23] [226:9,14,20] [227:1]       3] [193:18] [194:4,15]            appropriate [63:1] [64:3]
agencies [84:22]                    [234:16]                         [198:1] [207:13] [208:21]           [80:9] [82:25] [84:11]
agency [27:19] [28:13]            amending [50:4]                    [214:12] [216:16,20,21,23]          [229:9]
  [37:14] [38:20] [43:13]         american [66:5] [77:14]            [217:8,9] [219:12,24]            appropriations [58:5]
  [46:5] [60:22] [62:14]            [90:12,19,25] [92:12]            [220:4] [227:25] [233:3,5]       approval [190:16]
  [63:9,18,20] [64:4,24]            [98:25] [102:7] [117:7]          [238:5] [239:4,15]               approves [192:19]
  [66:9] [67:17] [83:11]            [125:16] [130:23] [132:6]      appealable [204:21]                approximate [112:19]
agencywide [63:18]                  [156:12] [190:3]               appealed [45:18] [47:6]            approximately [37:15]
agency-wide [63:18]               americas [36:11]                   [74:6] [76:13] [137:9]              [60:17] [173:4] [184:14]
agent [90:5,6,8]                  among [6:4,13] [36:11,13]          [139:7] [152:13] [153:21]           [185:11] [186:3]
ago [14:9,11] [22:2] [32:8]         [193:14] [196:8] [197:3]         [157:12,14] [180:20] [181:       april [:] [3:2] [10:17] [21:7]
  [60:1,14] [81:10] [89:14]         [209:7]                         2] [188:22] [189:6,10]               [22:11,12] [35:11] [44:25]
  [94:13] [100:11] [111:1]        amongst [36:21]                    [194:14]                            [60:16] [99:2] [108:2]
  [117:21] [123:9] [198:2]        amount [96:9] [126:24]           appeals [18:21,24] [19:3,6,10         [242:19]
  [210:4] [215:18]                  [127:13] [166:20] [200:13]      ,13,18,21,24,25] [20:6,9]         arcane [187:21]
agree [13:9] [19:14] [20:1]         [216:23] [217:15] [218:8]        [27:8,10] [29:2] [38:6]          area [49:21] [162:16] [216:5]
  [166:17] [184:8]                amvets [40:3]                      [41:3] [46:10] [47:11,12]           [223:4]
agreed [6:7] [78:9]               analogy [50:9]                     [49:10] [61:18] [67:8]           areas [151:17] [164:12]




                                                                                                                                     A.3
                                                  4/21/2008 Trial Transcript

 [216:6]                          assumes [75:5] [173:14]            [168:3,15] [169:3]              ,25] [202:5,22] [204:7,22]
arent [11:14] [12:7] [23:14]      assuming [105:25] [109:24]        aware [169:2] [172:21]             [206:16] [208:25] [209:4,5
  [60:21] [61:25] [64:25]           [113:17] [158:11]                 [173:8,11,20,24] [174:1,4]      ,12,17] [211:23] [212:12,16
  [71:16,19,25] [73:14]           attach [162:19] [201:24]            [175:18] [176:4] [184:13]       ,19] [213:11,12] [214:9]
  [82:8]                          attached [169:7] [239:5]            [185:10] [188:13] [202:20]       [215:24] [217:25] [219:10,23]
arguably [63:19]                  attacked [102:24]                 away [29:19] [48:25] [56:12]       [220:8,16] [221:2] [223:3]
argue [9:10] [13:15,20]           attempt [133:14]                    [62:10] [65:3] [73:20]           [228:19] [231:5,10] [233:2]
argued [9:12]                     attempted [36:23] [55:19]           [133:18] [146:17] [204:12]       [234:16]
arguing [9:13] [56:20]            attempts [36:21,24] [55:21]         [213:7] [233:2]                basis [5:7] [18:23] [19:25]
  [103:15]                        attention [5:2] [56:16]           awhile [148:17]                    [22:6,16] [24:5] [28:6]
argument [22:25] [34:12]            [215:20] [218:22] [225:19]                                         [32:14] [50:12] [84:17]
  [58:11,25] [194:10] [209:9]       [226:4] [228:8] [230:14]        B                                  [94:15,19] [99:17] [121:6]
  [240:3,]                          [232:13]                                                           [125:16] [128:1] [130:23]
arguments [18:13] [19:12]         attitude [52:1] [115:18]          back [10:8] [22:21] [37:22]        [139:15] [140:1] [142:4]
army [17:20]                        [119:10]                          [42:18] [44:17] [45:6]           [148:25] [150:20] [153:3]
around [14:4] [16:6,17]           attorney [4:14] [5:8] [30:17]       [46:11,12] [49:7] [69:2]         [193:16] [198:12] [214:8]
  [33:10] [60:11] [110:20]          [193:5] [194:18]                  [70:16] [73:22] [74:21]          [228:2]
  [149:11] [158:5] [173:25]       attorneyclient [5:8]                [75:10] [77:7] [78:20]         bates [17:19] [216:8] [218:23]
  [185:16] [222:2]                attorney-client [5:8]               [81:19] [89:6] [115:1]           [223:8] [225:20] [230:15]
arrives [209:17]                  attorneys [5:22,23] [49:20]         [116:7] [130:16,17] [131:3       [232:14] [235:19] [238:22]
arrow [46:8]                        [65:25] [174:2,9] [194:4]        ,25] [141:12] [147:3,6,10,11    battle [55:25] [114:24]
article [67:13] [105:17]          attributable [236:1]               ,14,20,25] [148:2,15,20]        bdd [196:15,16]
arturo [:] [3:15]                 audible [171:8]                     [149:14,15] [153:16] [158:     beamon [39:1]
ascension [48:20]                 audits [97:1] [138:10]             23,25] [166:19] [176:18]        bearing [19:4]
aside [165:17] [169:2]            august [211:14]                     [180:8,16] [184:9] [185:18]    beat [115:13]
  [193:21]                        aument [97:8]                       [186:16] [188:12] [210:9]      became [211:12] [213:13]
ask [6:1] [11:21,23] [15:13,19]   authored [40:15] [89:17]            [216:3] [217:15] [221:18]      become [105:22] [192:15]
  [17:23] [18:20] [20:2]            [90:10]                           [233:8]                          [193:6]
  [21:25] [25:7,13] [30:24]       authority [72:9,10] [87:9]        background [98:16] [99:9]        becomes [184:24] [209:12]
  [31:3,9] [33:8] [34:18]           [167:6] [202:22,25] [203:1]       [170:20]                       becoming [41:5] [210:22]
  [65:24] [89:11] [104:16]        authorization [92:2,3]            backlog [72:17,22] [131:4]       beef [58:13]
  [125:12] [128:8] [131:8]          [178:8]                           [162:25]                       beg [135:17]
  [134:22] [135:14] [152:2]       authorizes [178:7]                backlogged [146:6]               begin [34:23] [213:17]
  [154:12] [161:18] [163:11]      automatic [117:12]                backwards [14:23]                  [237:8]
  [165:15] [166:9] [169:23]       automatically [148:2]             bad [8:22] [18:13] [129:11,13]   beginning [21:19]
  [171:5] [174:13] [175:24]       availability [67:5]                 [179:3]                        behalf [3:20,24] [202:18]
  [184:18] [195:23] [203:16]      available [8:3,14] [9:17,18,23]   badge [104:4] [113:20]             [209:20] [220:1]
asked [7:13] [11:15] [22:6]         [10:7,8,24,25] [11:4,20]          [201:17]                       believe [5:11] [8:11] [9:19]
  [29:8] [49:23] [66:14,17]         [12:4] [17:2] [26:11,12,15]     balance [112:19]                   [23:9] [26:2,3] [37:22]
  [69:4] [82:10] [91:10]            [43:2,3,10] [52:6,7] [81:8]     ball [:] [171:17] [242:14]         [46:23] [47:5] [69:2] [115:19]
  [99:2] [122:23] [171:2,5]         [202:6] [215:2]                 bank [146:8,18]                    [118:24] [139:8] [140:9]
  [186:24] [187:1] [190:7]        avenue [:19]                      bar [63:21] [67:20] [86:4]         [146:1] [147:23] [148:22]
  [197:10]                        average [7:25] [8:1] [9:1,15]       [104:12]                         [158:3,4] [159:22] [162:10]
asking [7:6] [25:23] [154:7]        [11:15] [12:2] [37:12,21]       barred [63:18,19] [64:13]          [164:21] [165:18] [168:14]
  [172:24,25]                       [38:6] [43:9] [45:23] [46:2]      [79:5]                           [169:6] [171:23] [172:19]
asks [201:25]                       [68:14,18,21] [69:8] [71:17]    barriers [60:22]                   [174:19] [209:5] [213:12]
aspects [41:17] [201:3]             [75:22] [76:3] [126:25]         bart [89:16] [90:14,21]            [218:7] [221:21] [222:25]
  [204:20]                          [136:10] [138:18] [140:21]      barton [39:23]                     [226:18,24] [238:23] [239:
assault [102:16,18,21]              [142:3] [147:16] [148:6,16]     base [98:6] [108:23] [162:15]     2]
assertion [112:14] [113:10]         [216:9,11] [218:5,8] [219:16      [196:6]                        believes [60:18] [165:22]
assessed [156:16]                  ,18] [220:6,19] [221:18,22]      based [48:18] [54:3] [55:2]      belle [:] [242:14]
assessment [57:19] [115:9]          [222:13] [223:9,18] [224:11]      [68:19] [74:15,18] [99:9]      belong [69:23]
assign [115:2]                      [226:2,22] [227:1,3,4,5,8,13      [130:1] [131:14] [132:20]      belongs [80:18]
assigned [115:9] [131:24]          ,16,17] [230:22,25] [231:13        [136:9] [137:12] [140:19]      below [160:9] [235:9] [237:
  [132:1] [193:23] [205:1,2]       ,16] [236:23] [238:4,6,7,19        [144:8] [146:12] [152:15,21]    1,4]
assigns [205:7,8]                  ,23] [239:13,14]                   [156:23] [157:15,18] [160:     benefit [112:23] [121:14]
assist [119:24] [177:1]           averaged [227:10]                  24] [166:12,13] [168:5,12,13      [204:24] [206:20] [211:6]
  [198:13] [200:3,7,18]           averages [76:5]                    ,22] [174:10] [179:18]            [222:11] [229:20]
  [235:10,13,17]                  averaging [148:4,5] [218:6]         [183:7,15] [186:8] [195:13]    benefits [35:10] [39:13,23]
assistance [66:5,6] [199:1]       award [127:3] [160:19]              [202:1] [205:3,15] [206:19]      [40:15] [56:11] [57:1]
  [201:24]                          [166:19] [168:12,22] [170:      basic [90:10] [112:22]             [65:4] [66:4,8,11] [67:12]
associated [66:10] [192:20]        22]                                [160:2,3,4]                      [71:11] [72:9] [73:9] [81:4]
association [102:7]               awarded [126:10] [127:1]          basically [12:7] [96:8]            [84:22] [87:24,25] [88:17]
assume [74:19] [75:3]               [179:18]                          [103:1] [192:17] [194:16]        [89:18] [90:5,8] [94:24]
  [145:20] [146:25] [152:22]      awards [50:11] [114:25]             [195:3,4,20] [197:1,22]          [95:23] [97:25] [101:25]
  [176:7]                           [160:11] [163:15] [166:10,15]     [198:23] [199:1,4] [201:23       [107:4] [130:10] [160:8]




                                                                                                                                   A.4
                                                 4/21/2008 Trial Transcript

[161:5] [176:6] [185:2]          5]                               [130:7]                            care [35:6] [38:18,21] [39:8]
  [195:6] [196:17] [197:17]      bosses [129:22]                  bva [29:3,4] [37:14,16]              [51:14,17,18,24] [52:5,7,16
  [203:16] [212:2,17] [236:21]   bottom [110:8,12,22] [111:         [40:17] [41:4,12] [45:23]         ,18,25] [53:4,8,14,15,23]
bensing [:8] [3:25] [4:1]         25] [162:4] [216:8] [223:10]      [46:4,5,13,15,17] [49:20]          [54:2,3,5,25] [55:8] [56:12]
  [6:5]                            [226:2] [238:23]                 [74:11] [109:1] [114:25]           [57:7] [58:22] [59:2,3,5]
berkeley [:4]                    bound [91:15] [107:6]              [144:3,9,11,12,17] [146:12]        [65:3] [67:3] [73:23] [78:7]
best [62:6] [76:12]                [242:9]                          [147:6,25] [149:14] [152:5]        [84:11] [91:12] [155:14]
better [63:1] [75:14,20]         box [:] [:7]                       [154:4,11,13] [186:6]              [166:1] [197:6,12]
  [83:23,24] [136:18] [145:17]   boxes [11:18] [199:5]              [187:5] [194:13] [209:3,11       career [57:1] [84:15] [88:10]
  [161:16] [173:21] [200:17]     boy [85:9] [103:3] [104:11]       ,16] [210:1,2,10] [215:21]          [89:8]
  [212:11] [229:12]              bradley [95:11]                    [216:21] [217:4,14,20,25]        careers [56:25]
bias [98:16]                     brain [38:11] [45:5]               [218:5,9] [221:11,15,23]         case [6:16] [10:20] [11:10]
bible [107:6]                    branch [:]                         [222:5,8] [223:5,22] [224:1        [12:17] [15:6,16,24] [16:8,12]
big [28:13] [35:2] [122:22]      branches [78:13]                  ,8,19] [231:9,22]                   [20:5,7,10,12] [21:17,18]
bigger [136:5]                   break [56:5]                                                          [22:23] [23:18] [25:4,22]
biggest [99:3] [198:9]           breaking [55:15] [223:5]         C                                    [26:9,13] [27:12,14] [28:3,4
bin [122:22,24]                  bridge [13:8]                                                        ,7] [29:2,7,8] [32:19] [35:1,5]
binder [30:19] [100:4,16,17]     brief [6:10] [35:22] [58:8,24]   c&p [86:11] [87:25] [88:2]           [39:1] [40:14] [42:21]
  [101:9] [107:13] [112:6]         [59:8] [61:19] [62:20]           [94:1] [106:12] [201:12]           [45:14,17] [46:21] [49:7]
  [214:20] [233:22] [236:5]        [63:8] [65:6,9] [68:25]        calculated [47:5]                    [50:14] [53:14] [56:15]
binders [100:15]                   [69:13,17,21] [73:21]          calculates [138:3]                   [57:9] [70:5,12,18] [71:10,17]
binding [102:9] [107:2]            [83:6] [119:5] [146:20,21]     california [:] [:4,16] [242:5]       [72:1,6] [73:1,5,13] [75:5,9]
bit [4:24] [44:24] [51:14]         [161:9] [162:2]                call [10:22] [16:5,7] [24:17,18]     [76:12] [77:7,14,15,18]
  [86:22] [229:15]               briefly [5:15] [48:1] [51:13]      [28:3] [39:16] [42:1] [48:1]       [81:5,17] [90:6,7] [98:13]
black [66:6]                       [75:19] [99:11] [237:13]         [51:11] [60:2] [85:5] [86:11]      [99:3] [103:2] [104:10]
blanks [82:20]                   briefs [46:21] [56:21] [78:15]     [93:4] [118:1] [131:5]             [108:16,20,21] [111:1,6]
blow [104:11]                      [93:5,6]                         [146:21] [147:15] [153:20]         [115:8,17] [117:4,12]
blown [103:17]                   bring [5:2] [15:25] [16:6]         [182:2,24] [191:5]                 [118:25] [123:4] [126:19,20
board [27:8,9] [29:1] [38:6,7]     [17:3,6] [25:11] [26:12]       called [5:9] [20:24] [37:13]        ,23] [127:4,5] [129:19]
  [39:25] [41:3] [47:11]           [29:19] [44:15] [61:8]           [45:14] [50:5] [52:9] [75:11]      [131:2] [133:1,19] [134:2]
  [49:10] [67:8] [70:10]           [77:11] [84:8] [88:19]           [85:12] [86:14] [87:8]             [139:7] [142:1,3,8,12]
  [74:18] [76:22] [77:2,9,16]      [117:23] [118:3] [126:3]         [104:20] [106:10,11,12]            [143:2,6,12,18,23,25]
  [86:8] [90:18] [93:6] [95:9]     [174:14] [214:17] [218:12]       [111:9,22] [112:23] [117:14]       [145:14] [146:11,23] [148:
  [109:5] [111:2] [115:18]         [219:18] [223:17] [225:6]        [118:10,23,25] [123:5]            2] [153:22] [154:1,17,20,22]
  [116:5] [117:7] [130:14,17]      [230:24] [231:25] [232:22]       [135:4] [139:6] [154:17]           [155:1,3] [161:9] [166:4,16
  [131:1] [135:14,15] [143:25]     [236:4] [238:13] [239:6]         [157:16] [182:10] [183:18]        ,20] [172:14] [182:16,18,21
  [146:3,4,5,6,7,16,23]          bringing [7:3] [39:5] [79:7]       [191:12] [212:6]                  ,24] [183:3,17,20] [184:4,6
  [147:13,20,25] [148:1,3,21]    british [57:4]                   calling [3:4] [29:6] [57:7]         ,10,12,14,22] [185:4,8,9]
  [149:12,13,14] [155:2,3]       broad [66:20] [109:3] [212:      calls [97:5] [99:13] [146:4,5]       [186:15,18] [187:23] [194:
  [157:24] [158:15] [160:10]      14]                               [152:7] [167:1] [169:12]          15,16,17] [195:18] [197:23]
  [174:7] [175:5] [178:25]       broadcasting [4:12]              camera [5:12]                        [199:9] [202:14,15,19,21]
  [182:8] [184:7,12] [185:9,13   broke [105:6]                    candid [64:20]                       [203:2,8,9,10] [206:16,21,25]
 ,14,17,21,22,25] [186:14,15     broken [38:21] [215:20]          canned [45:15]                       [207:1,4,9,12,16,20] [208:
 ,16,21] [187:15,18,19]            [219:15] [223:4] [226:1]       cannot [11:7] [12:22] [113:         8,13,15,18,22] [209:1,3,8,23
  [188:10,15,22,23] [189:4,10]     [230:21]                        21]                                ,25] [210:10,15] [216:1,12,14
  [190:12] [193:24] [194:7]      brother [118:3]                  cant [5:24] [6:4] [8:23]            ,19] [217:6,15,21,22] [219:
  [205:23,25] [206:4,6,9,18]     brought [17:13] [22:10]            [11:21,25] [12:2,6,8] [16:5]      12,23,25] [220:3,12,16]
  [208:23] [209:13,14,17,22        [56:25] [79:7] [80:18]           [17:6] [19:3,13,25] [20:6]         [221:2] [222:10] [223:6,22
 ,23] [210:5,19,20] [216:24]     buddy [105:8] [120:1]              [27:20] [28:19] [30:4,23]         ,23] [224:1,4] [227:7,9]
  [217:6,7,16] [221:4,14]        budge [58:20]                      [32:4] [36:8] [45:9] [50:25]       [231:24] [233:11] [234:16]
  [223:3] [228:11,13,20,23,24    budget [38:16] [42:4]              [51:1,2,6,8,10] [60:22]            [237:9,11,14,17,20] [238:2
 ,25] [229:6,14,21,24] [230:     budgeting [127:10]                 [61:8] [69:16] [81:12]            ,18,25] [239:5,12,14]
 18] [231:5,6,9] [233:6]         buffalo [41:10] [121:21]           [88:23,24] [105:4,7] [117:23]    cases [19:24] [42:9,10,24]
  [234:13] [235:3]                 [210:24] [211:10,16] [213:       [121:7] [126:2] [130:9]            [43:23] [44:13] [46:7,17,19
boards [205:22]                   21]                               [137:21] [141:4] [146:6]          ,22] [47:6,10,12,13,16,21]
bocchicchio [:22] [4:6,7]        building [130:6] [193:13]          [148:17] [160:16] [164:13]         [49:2,18] [50:13] [61:1]
bodily [102:12]                    [199:19]                         [170:22] [174:15] [179:9]          [64:12] [71:10,16,24]
boilerplate [142:22]             bulk [190:13] [196:4] [210:12]     [180:5] [185:2]                    [72:1,17] [74:5] [91:5,17]
boise [115:8]                    bunch [5:23] [103:23]            capabilities [213:2]                 [92:15] [95:7] [97:4] [103:16]
bono [90:17,18,22] [91:11]       burden [21:3] [120:5]            capability [202:14]                  [113:7,19] [114:9] [115:7]
  [161:11] [190:14]              bureaucrat [98:12]               capacity [53:6] [156:18]             [116:4] [117:7,20] [118:25]
bonuses [48:18,20] [129:23]      burial [73:2]                    capital [115:25]                     [120:11] [121:16] [129:21]
book [40:16] [89:24] [90:1]      business [55:4] [57:5]           captured [105:11,14]                 [130:13,24,25] [131:1,6]
  [163:17]                         [123:11]                       car [106:3]                          [135:13] [138:13] [145:20]
books [89:17,23]                 businesses [130:4]               card [122:22]                        [146:6] [147:1,6,7] [148:1,14
boss [52:10] [122:23] [163:      buy [113:21] [114:4,8]           cards [122:19,24] [188:17]          ,15,20] [156:12] [157:2,14]




                                                                                                                                   A.5
                                                    4/21/2008 Trial Transcript

 [158:7,13,18] [159:16]             [80:15]                          ,23] [102:2] [103:21] [104:17]     [220:20] [222:14]
   [175:4] [176:1] [177:6,9]       challenged [68:11]                  [105:3,23] [106:8] [107:1]      clarify [210:18]
   [178:18] [179:1] [184:20]       challenges [84:9]                   [109:1] [113:14,25] [114:2]     class [51:17] [57:7] [77:2]
   [185:4,6,11,23,25] [186:2,10    chance [96:19] [160:7,8]            [115:2] [117:3] [118:2]            [81:14] [99:2]
  ,17] [188:22] [190:2,11,15,17       [203:9,10] [209:20]              [121:11,20] [123:3,5]           classic [75:12]
  ,19] [194:4] [195:25] [196:2     change [77:6] [113:15]              [129:21] [131:18,19] [133:      clean [109:10]
  ,3,11,15] [197:3] [203:8,10]        [188:7]                         1,2,5,19] [134:2,12,13,14,21     clear [22:24] [134:19] [147:
   [210:13,18] [218:1,2]           changed [55:5] [77:6] [81:25]      ,24] [135:3,4,6,9,10] [136:11      13] [175:15] [184:24]
   [221:9,13,15] [222:10]             [120:17] [126:16] [187:24]      ,25] [137:8] [138:4,18]          clearly [31:11]
   [224:7,8,17] [226:6,13]         changes [164:16]                    [139:20] [140:2] [149:25]       clement [:]
   [227:6] [229:11,21,22]          changing [104:21] [189:9]           [150:15] [153:5] [155:5,14]     clerk [3:4] [85:2,7] [107:17]
casey [41:15]                      chapter [96:13] [118:19]            [156:9] [157:17] [161:1,3,4]       [171:15] [191:7] [192:3]
catalyst [61:12]                   chapters [96:12]                    [166:25] [171:24] [172:5]          [219:3,6] [233:24] [239:20]
catastrophic [55:18]               characterizes [82:8]                [175:19] [178:22] [179:12,14    climbing [55:7]
catch [147:5]                      charge [90:20,21] [96:11]          ,24] [180:3,11] [184:23]         clinical [119:17]
catholic [40:12]                      [117:9,10] [122:23] [192:24]     [195:5,11] [196:12,21]          clinicians [106:11,15]
cause [55:9] [102:13] [144:        charging [91:1]                     [198:2,12,14,24] [199:6,7]         [118:10,12]
  2] [187:13,15]                   charitable [199:15]                 [200:4] [201:3] [202:11]        clinics [54:3]
caused [182:18]                    chart [5:14] [43:5] [45:7,19]       [205:1] [208:7,23] [209:16]     clip [39:12]
causes [179:5]                        [46:16] [72:24] [75:2]           [212:18] [213:16] [227:14]      clock [176:20]
cavc [109:5] [194:14,15,23            [76:6] [88:20] [136:25]          [229:12] [231:21]               close [26:9,13] [37:6] [56:2]
  ,24]                                [140:14] [141:23] [157:5]      claimant [106:8] [157:23]            [63:16] [130:25] [176:8]
cbs [36:14,17]                        [158:1] [159:3,25] [187:5]       [175:1] [202:20] [203:4]        closed [37:7,8] [220:16]
cd [111:16]                           [189:5,8]                      claimants [40:19] [43:6]          closely [90:22]
cdc [36:12]                        charts [72:20]                      [98:8,12]                       closelyrelated [90:22]
center [:3] [48:10] [52:23]        check [91:22] [121:21]            claimed [172:20]                  closely-related [90:22]
   [54:21] [60:4] [104:24]            [129:16,17,18] [130:7]         claiming [98:22] [124:5]          closer [136:23] [187:3]
   [113:8] [130:25] [147:3,4]         [155:18] [197:24] [199:5]        [140:3]                            [192:4] [219:19]
   [172:17] [199:17] [202:23,24]      [209:5]                        claims [7:10,15,24] [8:2,17]      closing [240:]
   [210:12] [211:1,3,4] [217:17]   checked [86:18]                     [11:9,23,24,25] [18:21]         cmp [115:23]
   [222:12] [223:24] [224:5,7]     checking [124:3]                    [19:19] [37:10,25] [40:5,6]     cna [48:11] [161:19]
   [226:8,10]                      checks [87:17] [94:16,19]           [41:6,24] [42:13,15,16]         code [11:24]
centers [46:11] [52:20]               [126:17] [155:17] [178:19]       [43:12] [44:7,11,12,20,23]      coined [149:21]
   [53:12] [211:2,13]              chicago [41:7] [92:21]              [45:1] [46:10,20,22] [47:13     cold [56:20]
central [39:21] [40:11]            chief [18:24] [52:22]              ,18] [48:4,6,19] [49:25]         collapse [56:11]
   [41:7] [50:1,7] [86:9,20]       choose [182:5]                      [50:16,18] [56:11] [61:4,8,9]   collaro [46:20]
   [87:1,12,22,23] [95:8]          chris [4:4]                         [65:4,18] [66:11,14,19]         collateral [25:23]
   [157:19] [166:21] [169:3,10     christopher [:20]                   [67:15] [68:12,15,18]           collect [178:1]
  ,17,24] [170:20] [212:3]         churn [44:7] [49:2]                 [71:12,13] [72:8,25] [73:2]     collected [202:13]
certain [43:25] [44:2] [82:4       churned [51:7]                      [76:16,18,21] [77:2,3]          columbus [40:13]
  ,21] [83:19] [98:15] [99:20]     churning [43:23] [48:4]             [78:16] [79:25] [80:10]         column [215:20] [216:16,21]
   [149:12] [166:20] [201:17]         [75:7]                           [83:24] [86:19] [87:7,10,15]       [217:3,4,13] [218:5] [219:21]
   [210:13] [229:12]               cib [105:16]                        [88:16] [90:4,6] [91:18]           [220:9,25] [221:11] [222:8]
certainly [8:8] [16:20] [20:1]     circle [113:6]                      [92:15] [93:4,7] [95:17]           [224:16] [226:4,9] [231:2]
   [58:18] [70:1] [112:7]          circuit [47:15] [61:7,16]           [97:6,21,25] [98:14,15,16,17]      [232:23,25] [234:15,23]
   [116:21] [133:7] [152:19]          [68:11] [69:16] [70:13,19]       [99:10,11,13,14,15,21]             [236:23] [238:9,19]
   [163:21]                           [77:15,19,22] [80:17,19,20]      [103:3,24] [108:22] [113:1      columns [217:13] [218:6]
certificate [242:2]                   [81:20] [82:19] [93:8]          ,17] [114:15,19] [116:11,13         [234:18]
certification [45:23] [46:4]          [158:17]                        ,15,20,21,24,25] [117:4,9]       comb [31:7]
   [138:23] [144:12,13] [145:      circumstances [103:12]              [119:15] [120:24] [121:1,5]     combat [103:7,8,9,14]
  24] [208:25] [209:4] [221:5]        [108:8] [116:15]                 [122:3,4,5] [124:20] [126:11]      [104:4,8,10] [105:25]
   [229:24] [233:6] [234:19]       cite [69:12] [81:5]                 [130:11,14,23] [131:16]            [106:1] [108:18] [110:18,22]
certifications [144:11]            cited [46:21]                       [132:12,13,16,19,24]               [111:2,5,6] [113:20] [120:14]
certified [144:3] [146:11]         cites [179:15]                      [138:20] [140:20] [141:3]          [121:22,25] [122:1] [201:17
   [208:23] [209:11] [216:24]      cities [92:19]                      [142:13] [144:9] [150:12]         ,18]
   [231:22,24]                     city [41:9] [194:1] [195:1,14]      [152:6,12] [156:1,15]           combine [91:14]
certify [45:25] [144:17]              [211:18]                         [157:12,20] [158:6,12,21]       combined [99:22] [126:11]
   [154:4] [209:3] [229:21]        civil [:11] [3:4] [65:17,23]        [169:5,18,25] [170:18,23]          [159:22] [185:17] [187:7]
   [242:6]                         claim [7:21] [8:12,18,20]           [172:13,14] [173:4,11]             [224:25]
certifying [144:9]                    [9:2,6,16] [11:2,3,16]           [174:17] [175:2,4,5,11,12]      coming [15:11] [19:19]
cetera [120:3] [126:15]               [37:9] [43:8,9,17,19,24,25]      [176:5] [179:18] [180:1,2,25]      [68:22] [73:22] [218:2]
cfr [67:2,19] [99:21]                 [44:4,5,8] [46:9] [48:8]         [181:1,3] [186:9,13] [189:4     commend [69:3]
chair [194:2,12]                      [50:8] [59:1,10] [61:3]         ,9] [193:15,25] [195:10]         comment [61:14]
chairman [77:8]                       [67:23] [68:2] [74:1] [78:18     [197:14] [198:1,25] [201:23]    commenting [151:7]
challenge [58:16] [61:2,20]          ,20,22] [79:3,25] [81:11]         [210:2] [211:6,7,24] [212:2     commit [49:16]
   [66:24] [67:2,9,11] [69:20]        [94:5,10,21] [97:24] [98:19     ,17,23,24] [213:10] [214:2]      committed [60:13]




                                                                                                                                      A.6
                                                    4/21/2008 Trial Transcript

committee [194:3,13]               concern [16:8,9] [27:2]           constraints [78:24]               12] [238:7,20]
common [:] [3:5] [47:21]             [55:10] [179:5]                 consultant [6:8] [86:12]          corrected [69:6,9] [203:12,13]
community [54:3]                   concerned [141:11]                  [211:20]                        correctly [48:5,9] [80:1,8]
company [201:11]                   concerns [138:19]                 contain [25:16] [110:17]            [126:18]
comparatively [127:4]              concluded [239:21]                content [142:15]                  correspondence [90:11]
compare [238:9]                    conclusion [167:2] [168:18]       contest [104:5]                   corrupt [48:1]
compared [120:25]                    [169:12] [170:8]                context [57:25] [66:15]           couldnt [69:2] [74:16]
comparison [226:25] [231:          concurred [192:18]                conti [:]                           [75:10] [82:3] [151:21]
 16]                               condition [71:3,22] [98:19]       contingency [38:14]                 [187:1]
compel [9:10]                        [99:16] [114:24] [132:18]       continue [74:10] [89:8]           counsel [3:6] [4:22] [50:24]
compelled [9:20]                     [134:15,18,21] [181:6]            [108:4] [123:13] [199:6]          [117:17] [125:10] [129:1]
compensated [127:22,23,24]         conditions [52:19] [71:18]          [208:7]                           [133:23] [140:23] [150:25]
compensation [39:11]                 [99:16] [106:15,16] [132:12     continued [:] [:1] [207:2]          [151:2] [152:9] [156:5]
  [40:6,9] [41:18,20] [43:23]       ,17]                             continues [176:21]                  [163:21] [165:12] [192:19]
  [48:2] [49:3,15] [51:3]          conduct [87:17]                   contractor [201:10]                 [219:3]
  [66:4] [71:7] [74:1] [79:23]     conducted [40:1] [51:20]          contradicted [113:16]             counsels [118:24]
  [80:5] [86:10,16] [87:2,11,12]   conducts [41:22]                    [118:25]                        counter [33:10]
  [90:8] [106:12] [107:4]          conference [9:25] [31:17,20]      contradiction [74:5]              country [26:7] [37:5] [156:10]
  [124:19] [128:23] [129:3,5         [231:3,4,7]                     contradictory [120:18]              [194:3] [195:4]
 ,7] [136:11] [156:24] [166:21     conferencing [231:11]             contrary [37:11]                  couple [7:16] [22:19] [46:16]
 ,23] [181:1] [195:22] [196:13]    conferred [8:13]                  contrast [226:19]                   [60:3] [98:23] [100:2]
  [201:4] [211:5,21]               conferring [4:21]                 contrasting [52:24]                 [101:21] [104:14] [113:11]
complain [8:22] [21:6]             confided [102:24]                 contribute [71:18]                  [125:12] [143:11] [150:13]
  [61:10] [63:10] [79:2,6,24]      confidence [138:25] [139:4]       control [51:25] [69:15]             [151:4]
  [81:14,16]                       confidentiality [121:8]             [99:21] [123:3] [138:4,6,12     course [17:16] [18:25]
complained [17:14] [57:11]         confirm [106:1]                    ,14] [202:3] [206:16] [213:9       [20:4] [43:7] [59:2] [75:5]
complaining [14:17] [17:17]        confirmed [36:3] [54:9]            ,23]                               [76:2] [90:10,11] [177:11]
  [61:17] [75:24] [179:3]          confirming [102:23]               controls [76:4]                     [188:10] [189:13] [197:15]
complains [143:15]                 conflicting [80:21]               convenient [60:10]                  [201:18]
complaint [22:19] [23:5]           conflicts [17:1] [50:12]          conversation [6:6] [95:11]        court [:] [4:10,13,20,23]
  [46:21] [49:2] [50:23]           confusing [187:17]                convicted [49:21]                   [5:3,11,16,21] [6:12,19]
  [66:13] [82:14] [87:19]          congress [58:18] [59:6]           convince [104:16]                   [7:6,8,20,23] [8:6,10]
  [117:24]                           [67:11] [72:12] [77:21]         convinces [114:10] [179:16]         [9:10,12,21,23] [10:3,9,11
complete [8:20] [9:3] [22:12]        [78:3,4,7,10] [81:21] [82:23]   cooper [42:16] [50:20]             ,16,18] [11:10,11] [12:14,18
  [110:1] [190:11] [193:3]           [83:13,17,18] [93:9] [95:17]      [68:25] [69:4,6,9] [97:9]        ,21,24] [13:7,11,14,17,19]
  [197:1] [198:15] [219:11]          [149:9] [188:8,9]               cooperate [26:11]                   [14:3,4,10,11,16,17,20]
  [227:4,13,17] [238:7]            congressmen [87:20]               coopers [39:12]                     [15:2,8,14,20] [16:10,13,15
  [242:8]                          congresss [83:19]                 coordinator [59:24]                ,18,21,25] [17:5,10] [18:1,12
completed [35:11] [155:16]         connect [115:20]                  copies [17:14,16,18] [94:19]       ,20,23] [19:3,6,9,11,13,16,18
completely [128:25]                connected [103:9] [106:1]           [214:20] [233:23,24]             ,20,22,25] [20:5,6,9,12,14,15
completing [133:2]                   [114:11,20,23,25] [116:3]       copy [111:17] [195:10]             ,21,24] [21:2,11,13,20,25]
completion [219:11]                  [136:11]                          [236:5] [238:14]                  [22:2,4,10,13,25] [23:9,17]
complex [67:12] [78:1]             connection [71:3] [102:2]         core [23:17]                        [24:6,10,13,15,19,23]
  [79:3] [83:24]                     [103:21] [105:23] [109:6]       corporate [85:22]                   [25:7,14,19,25] [26:16,24]
complexity [70:23] [71:10]           [111:23] [114:13] [116:21]      corporation [38:8,17]               [27:14,20] [28:18,22]
  [76:15]                            [121:7] [134:13,14] [172:4      corps [104:25]                      [29:1,11,16,24] [30:4,8,13
compliance [53:18] [60:15           ,5,10,12] [197:5,11]             correct [33:18] [66:21]            ,16] [31:1,16,23] [32:1,12,22]
 ,17,18,24] [118:22]               consequence [156:25]                [93:23] [94:4] [97:25]            [33:4,13,22] [34:4,7,12,15
complicated [11:22] [43:21]        consider [7:7] [13:17]              [112:21] [129:12] [141:17]       ,18,20,21,24] [35:1,14]
  [48:16] [92:7] [176:14]            [63:17,23] [67:18] [70:6,10       [144:14] [147:14] [150:15,25]     [36:8] [37:19] [38:19,20,25]
  [187:22]                          ,11] [74:12] [77:17] [81:1]        [151:1] [171:25] [172:9,15]       [39:1,15,24] [42:21] [46:3]
complicating [69:25]                 [94:21] [132:17] [176:24]         [173:18] [176:3,10,11,20,24]      [47:12] [49:11] [50:9]
complied [101:11] [192:5]            [183:5] [187:18]                  [177:2,3,24] [178:2,5,6,9,10      [51:19,22] [56:6,9] [59:4,7]
complies [168:15]                  consideration [70:17]              ,15] [179:12] [180:8,11,21,22]     [60:25] [61:3] [63:4,6,17,23]
comply [14:8,12] [22:18]           considered [78:4] [81:3]            [181:12,16] [182:1,19]            [64:1,5,25] [66:18] [67:13]
  [77:2]                             [86:5] [105:6] [175:8]            [183:5,17,18,19,21] [184:16       [68:8] [69:3,4,24] [76:7,20]
comprehensive [59:19]                [237:16,17]                      ,19] [185:12] [187:7,10,11,25]     [77:22] [78:3,11] [79:21]
compromised [48:13]                considering [78:11]                 [188:6,24] [189:11,24]            [80:14,20,22] [81:19]
computer [8:16] [11:23]            consistent [103:11] [116:17]        [190:4,23] [192:13] [193:3]       [82:8,10,19] [84:2,6,9,10,17
  [123:2] [138:5] [194:2]          consortium [90:17,18]               [199:13,24] [200:21] [203:       ,25] [89:5] [93:7,18] [95:20]
  [211:23,24,25] [212:1]             [91:12]                          5] [205:10] [206:12] [207:4        [96:3,9,14] [99:6,12] [100:
computerized [9:5]                 constant [117:24]                  ,24] [208:19] [211:9,17]          16] [101:4] [106:21] [107:14
computers [11:7]                   constitute [35:13]                  [215:19] [216:5] [220:5,13       ,17] [108:4,21] [109:14]
concede [49:11] [80:25]            constitutes [111:9]                ,16] [222:7] [223:7] [224:9]       [110:4] [111:1,4] [116:4]
  [94:20] [103:10]                 constitution [82:21] [83:5]         [226:2,11] [227:14] [228:17]      [117:5,8,11] [118:16,25]
conceded [79:11]                   constitutional [81:4,15]            [230:22,23] [232:21] [237:        [124:11] [125:8,13,20]




                                                                                                                                    A.7
                                                    4/21/2008 Trial Transcript

 [126:4,8] [127:7,11,18]             [25:11] [26:4,5,20] [35:6]       [45:15,17,21,24] [46:6,12,13]      [176:17] [180:11] [181:18]
   [128:2,5] [129:2,9,13]              [51:2,16] [65:12,22] [95:19]     [60:10,13] [64:1,2] [68:21,22]     [182:10] [183:7,10] [187:18
   [130:4,19,21] [131:9]               [131:10] [171:21] [240:9]        [69:1,5,6,7,9,11] [78:19]         ,20] [194:2,15,22] [202:15,18]
   [132:22,24] [134:9,25]           crossexamination [25:11]            [82:20] [83:5] [92:24]             [203:1,3,6,14] [204:5,7,15
   [135:3,5,24] [136:16,19,21]         [95:19] [131:10]                 [137:1,3] [138:5] [139:21]        ,18,19,20] [205:23] [206:8]
   [137:20,24] [138:8,16]           cross-examination [25:11]           [140:3,5,8] [141:25] [143:19]      [207:3,6,7,8,10,15,18]
   [139:12,18,24] [140:12]             [95:19] [131:10]                 [144:1,4,5,7,22] [146:13]          [208:11,12] [217:4,21]
   [141:11] [142:6] [144:19,24]     crossexamine [65:12,22]             [154:21] [172:22] [178:4,11        [218:9] [219:25] [221:16,23]
   [145:8] [148:9] [149:4,19,22]    cross-examine [65:12,22]           ,13,20] [179:24] [183:20]           [222:5] [224:20,22] [228:12]
   [150:3,5,22] [151:6,14,23]       crossing [182:4]                    [184:9] [187:12,15,21]             [232:17]
   [152:9] [153:13] [154:8]         crr [:] [242:14,17]                 [199:7,9] [207:15,22]            decisionmaker [202:18]
   [156:6,19,21] [158:12,15]        csr [:] [242:14,17]                 [215:14] [216:15,20] [217:         [203:3]
   [159:3,8,11,14,18,24]            culmination [157:8]                2,4,6,12,14,19] [218:5,11]        decision-maker [202:18]
   [160:10,18] [162:17] [163:       cumulative [47:5] [157:5]           [220:7,8,21] [221:10,25]           [203:3]
  8,23] [164:1,4,6,7] [165:4,9      cure [54:16]                        [222:6,15] [226:24] [227:2       decisions [18:22] [37:16]
  ,13,20,22] [166:1,5] [167:3       cured [42:19]                      ,3,4,5,13,16,17] [231:13,19]        [49:25] [61:18] [62:17]
  ,11,24] [168:10,19,25]            curing [19:23]                      [238:5,6,7,19,24] [239:3,10        [63:3] [66:9] [69:20] [76:25]
   [169:15,22] [170:3,5,11,14]      current [54:25] [94:23]            ,13,15]                             [97:2] [138:3] [180:14,17]
   [171:1,4,11,13,18] [172:25]         [123:16] [128:10] [134:15,18   daytoday [213:1]                     [185:21] [194:13,25] [195:
   [173:15] [182:9] [186:8,13         ,20] [173:11] [176:4] [195:4]   day-to-day [213:1]                  9,13,20] [202:22] [206:5]
  ,18] [188:6,11] [190:7]              [201:7] [234:14]               dd [103:22,24,25]                    [221:11] [223:4,5] [232:16]
   [191:2,24] [194:5,18]            currently [39:18] [40:24]         dd214 [103:22,24,25]               declaration [193:4] [197:22]
   [196:16] [197:9,13] [199:11         [54:22] [90:16] [92:10]        dd-214 [103:22,24,25]              declaratory [65:24]
  ,15,17,20,23,25] [200:5,9,13         [95:22] [122:17] [158:1]       de [38:3] [46:2] [47:8] [113:      declining [55:9]
  ,19,22] [203:19] [204:3]             [173:20] [191:18] [195:25]      6] [157:17] [179:9] [181:14       dedication [84:12]
   [205:7,9,11,25] [206:2,8,11]        [196:12] [197:3] [217:18]       ,17] [232:19] [233:4,13]          defects [50:22]
   [215:9] [219:1] [223:14]            [226:16,17,19] [231:23]        deadline [153:19,23,25]            defendant [20:11] [24:20,24]
   [225:16] [228:5] [230:11]        cut [29:9] [87:5]                   [154:2,3,17] [155:2]               [25:4,17] [26:18] [27:14,17]
   [232:10] [234:9] [236:6,16]      cutting [75:4]                    deadlines [78:8] [153:18]            [28:4]
   [239:19,20] [242:5]              cycle [38:16] [46:11,19]          deal [5:3] [6:14] [24:13,17]       defendants [:] [:6] [3:20,22
courtroom [4:11,12,15]                 [47:21,22]                       [94:9] [101:22] [102:17]          ,24] [4:1,3,5,9] [5:19] [7:14]
courts [5:2] [13:5] [14:25]                                             [120:6] [132:19] [141:10]          [19:19] [28:14] [53:13]
   [22:16] [42:8] [68:3] [116:19]   D                                   [145:18] [155:4] [160:14]          [58:25] [59:1] [83:8] [84:5]
   [117:22] [120:11] [160:11]                                           [161:13]                         defense [22:22,24] [53:14]
   [188:9]                          d.c [:12,] [39:19] [40:11]        dealing [6:15] [14:24] [157:         [55:23]
cover [51:13,14] [96:6]               [41:8] [131:5] [212:4]           12] [160:13] [181:1]              deficiencies [54:6,16]
   [106:14] [163:10]                  [228:21]                        deals [11:2] [15:4] [87:17]        deficient [53:16]
coverage [70:25]                    dallas [37:2]                       [110:14] [116:1] [195:18]        define [102:11]
covered [79:4] [151:17]             danang [108:23] [109:7]           dean [40:12]                       defined [195:15]
cows [87:5]                         dangerous [115:11]                death [39:10] [40:6] [136:11]      definitions [110:17]
create [58:25] [86:14] [87:13]      daniel [:8] [3:25] [97:9]           [172:14] [232:25]                degree [48:13] [49:4,16]
   [98:7] [102:12]                  data [11:21] [12:7,8,12]          debra [:] [242:17]                   [66:25] [71:6] [119:13]
created [7:9] [35:7,16]               [28:25] [37:9,24] [43:10]       dec [217:14]                       deign [16:7]
   [59:19] [63:12] [67:14]            [46:25] [47:1] [60:17]          decide [20:7] [39:7] [43:10]       delay [42:7,22] [96:6] [145:
   [101:22] [147:5] [212:9]           [141:8,11] [214:2] [215:15]       [63:4] [64:2] [65:1] [77:22]      12] [150:15] [172:20,22]
creates [79:24]                       [216:4] [219:15] [225:24]         [80:1] [81:21] [84:2,11]           [182:18]
credibility [20:24]                   [230:19] [237:24]                 [87:10] [169:4,25] [170:15]      delays [7:9,12] [29:3] [40:8]
credible [111:9] [112:13]           date [10:16] [14:11] [26:16]        [194:4]                            [41:12] [42:15,23] [45:12]
   [113:22] [120:13] [122:2]          [114:13] [141:20] [154:21,22]   decided [17:12] [64:7]             delegated [59:6]
credit [44:6] [48:17,24,25]           [176:18] [180:24] [181:3,5        [78:2,18] [80:8] [134:3]         deleted [164:11,17,21]
   [49:9] [122:6,13,16,18]           ,12] [204:7,24] [207:14,15,21]     [179:12] [189:4] [190:12]          [165:8,17]
   [123:3,5,25] [124:5] [126:20       [209:24] [210:1] [212:17]         [221:13]                         deliberative [5:9,10,19]
  ,24] [130:11] [131:15,19]           [215:16] [219:13,14] [220:      decides [183:14] [223:22]          delimiting [70:19]
   [132:4] [133:11,12,14]            22] [221:19] [227:18,19]         deciding [48:5] [65:18]            delineates [215:13] [219:9]
   [134:5] [135:21] [155:16]        dates [82:25] [210:5]               [194:13] [202:20] [210:2,4]        [230:16] [232:15]
credits [43:22] [48:17,18]          dav [90:19]                       decision [19:7] [32:23]            delineating [215:12] [223:2]
   [128:20] [129:21] [134:12]       david [89:14]                       [37:14] [38:3] [43:9] [45:19]      [225:21]
   [155:14]                         day [7:3] [14:16] [36:11]           [46:5,14,15,18] [61:21]          deliver [54:3]
creek [:]                             [46:9] [52:24] [60:5,8]           [62:3,8] [63:6] [64:4] [65:20]   delivered [54:13] [163:12]
criminal [49:16]                      [95:23] [122:23] [153:9]          [68:1,15] [70:23] [73:20]        delivery [38:18] [51:23]
crisis [38:22]                        [170:16] [182:6,7] [207:17]       [74:2,7] [75:17] [76:2,15]         [196:17]
criteria [197:18]                     [213:1] [227:10]                  [81:23] [83:20] [98:13]          demonstrate [229:14]
critical [38:18] [53:17]            days [8:1] [9:1,15] [12:1]          [137:1,9] [139:20] [140:2]       demonstrating [57:17]
criticized [57:22]                    [14:1,9,11] [15:6] [16:10,11      [141:16,21] [143:3] [146:15]     demonstrative [33:3,5,8,13
criticizing [57:11]                  ,14,15] [25:15] [32:9] [37:12]     [147:22] [150:14] [157:16,24]     ,15] [34:4] [225:3] [232:20]
cross [12:23] [13:8] [24:22]          [38:7] [43:9,16,17] [44:8,11]     [159:12,13,15] [166:25]          demonstratives [12:9]




                                                                                                                                      A.8
                                                 4/21/2008 Trial Transcript

[62:21] [65:16]                  detailed [119:21] [122:10]        directive [50:12]                  dispositive [67:24,25]
demuth [59:15]                     [207:7]                         directives [40:11] [50:2,10]       disputes [4:22]
denial [38:20] [67:15] [132:     details [201:25] [234:12]           [169:3]                          disregard [19:6]
 12,13,23,24] [154:21]           detected [50:15] [114:16]         directly [25:21] [152:2]           dissatisfied [74:7] [181:11]
  [157:1] [159:13,15] [180:21]   determinations [112:24]             [161:3] [193:21] [209:14]          [204:5] [207:10]
  [186:4]                        determine [6:3] [66:25]           director [39:18] [54:20]           distinct [199:11]
denials [48:23] [132:15]           [67:23] [68:1] [70:24]            [73:11] [85:19] [88:12]          distinguished [39:1]
  [180:13] [186:6]                 [71:1,2,6] [83:4] [106:5]         [89:13,16]                       distortion [119:13]
denied [22:5] [108:16]             [131:10] [194:17]               disabilities [180:7] [198:5]       district [:] [50:9] [242:5]
  [109:1] [111:2] [113:25]       determined [121:15] [158:15]        [205:6]                          divergence [34:25] [35:16]
  [114:2,7] [115:2] [117:3,7]    determines [194:4]                disability [:] [3:10] [39:11]      divide [12:1] [106:17]
  [118:2] [120:12] [133:5,19]    determining [118:21] [128:          [40:6] [51:2] [66:25] [71:7,19   divided [13:22]
  [134:23] [135:6] [158:11]       21]                               ,21,23] [79:3] [136:11]           dividers [112:4]
  [179:15] [180:21] [181:1]      develop [48:6] [97:23]              [172:14] [196:12] [197:17]       division [:11] [120:4,10]
  [184:23] [186:14] [187:4]        [177:1]                           [201:4,7,8] [205:2] [229:13]       [206:5]
  [189:24] [223:7]               developed [55:3] [202:11]         disabled [71:7] [73:1] [77:13      divisions [87:25]
denies [155:5,14] [186:2]          [212:16]                         ,18] [160:13]                     docket [209:23,25] [210:5]
denver [50:16]                   developing [201:3]                disagree [180:10] [189:20]           [218:1]
deny [44:3] [104:17] [133:1      development [43:25] [108:           [207:2]                          doctor [24:23] [36:5] [62:11]
 ,2] [134:21] [170:23] [208:7]    13] [133:3] [147:7,9] [157:21]   disagreed [151:12]                   [81:10] [104:17] [106:4,8]
  [209:16]                         [201:24] [206:21] [208:7]       disagreeing [179:20]                 [113:8,9,20,21] [114:5]
denying [43:24] [66:18]          diabetes [132:17] [180:8]         disagreement [37:14]                 [117:4,22] [119:8,10,20]
  [67:16]                        diagnosed [98:18] [108:25]          [45:8,11] [47:2,8,18] [75:18]      [177:4,8] [178:8,9,11,15]
department [:6,,,18] [86:23]       [114:6]                           [141:22] [175:20] [176:2]        doctors [62:3,10] [63:5,6]
  [192:1,13] [201:10]            diagnoses [55:7] [113:3,11]         [179:23] [180:10] [182:15,17]      [84:13] [106:17] [108:25]
depending [223:21]               diagnosis [113:21] [171:24]         [204:8,15] [206:14] [213:19]       [113:15] [119:14] [120:5,6
depends [54:2] [71:7] [198:        [201:7]                           [216:1,12,14] [220:23]            ,12]
 11]                             diagnostic [102:5]                  [221:20,24] [222:4]              document [5:18] [31:15]
depict [235:12]                  diana [97:8]                      disagrees [181:4]                    [35:15,23] [44:18] [47:3]
depicted [53:1] [232:19]         dictate [59:5]                    disaster [142:19]                    [101:15] [104:1,3] [111:20]
depicts [236:19]                 dictates [50:13]                  discharge [195:6] [196:17,20         [125:21,22,23] [126:7]
depo [10:5]                      didnt [4:23] [12:11] [14:6,8]      ,23]                                [136:6] [139:13] [162:12,13]
deposition [10:6,9,13,14]          [17:14,16,17,19,20,21]          discharged [199:25]                  [164:15,23,24] [165:4,6,18
  [12:3] [39:12] [42:17]           [18:9] [19:10,19] [21:6,8,24]   disclose [14:1] [21:16]             ,25] [166:2,9,13,15] [167:9
  [56:20] [59:15] [62:11]          [22:18,21,22,23] [23:1,13]        [23:2]                            ,13] [174:23] [207:4] [214:22
  [64:14] [65:22] [69:1,3]         [25:12] [30:23] [37:6]          disclosing [21:14]                  ,23] [215:12,13] [216:13]
  [97:8,12] [168:6]                [56:19] [58:8,9] [61:19]        disclosure [21:13,22]                [218:15,16] [219:8] [222:6
depositions [10:20] [35:9,10]      [62:21] [63:8] [65:15]          disclosures [21:6,7,12,15,18]       ,19,21] [223:1,13] [224:3]
  [38:14] [39:4] [164:23]          [72:23] [74:17] [75:23]           [22:7,20] [23:6,11,15]             [225:9,11] [226:12,22]
depression [38:11] [113:25]        [104:14] [109:9] [115:18]       discovery [7:3] [19:16,21]           [227:1,24] [230:4] [231:13
deprived [19:18,21]                [122:2] [123:1] [130:11,15]       [20:4] [22:9] [23:16] [25:1]      ,17] [232:3,15] [233:7]
depth [119:19]                     [134:22] [141:8] [143:14]         [35:5] [49:12] [51:6,19]           [234:2,4,12,21] [235:6]
deputy [27:9] [68:25] [69:4]       [145:8,16] [153:21] [162:12]      [62:2] [81:7]                      [236:9,19] [238:11,22]
  [73:8] [77:8] [89:13]            [165:2] [185:6] [188:11]        discredit [55:24]                    [239:3,8]
describe [48:16] [86:1]            [190:6] [229:4,9] [231:4]       discrepancies [28:24]              documentation [119:23]
  [88:10] [92:19] [195:1]        die [37:25] [47:24]               discrepancy [10:23]                  [120:3]
  [196:18] [212:14] [219:8]      died [7:11] [38:2] [233:13]       discrete [11:25] [63:23,25]        documenting [102:21]
  [223:1] [225:21] [228:18]      differ [223:21,25]                discretion [68:5] [83:19]          documents [5:7,10,16]
  [230:16] [231:4] [232:15]      difference [226:13] [227:3]       discretionary [64:4]                 [6:7] [18:9] [21:17] [25:15]
  [234:12] [236:19]                [234:20]                        discuss [125:9] [197:23]             [27:24] [28:20,22,25]
described [5:20] [53:9]          different [12:25] [26:5]            [198:4]                            [29:12] [31:19] [32:1,10]
  [55:9] [132:5,7]                 [34:12] [52:12] [71:17,25]      discussed [218:6] [237:13]           [35:25] [55:24] [65:11,20]
describes [113:9]                  [92:3] [106:15] [136:3]         discussing [32:13] [211:7]           [105:22] [150:13] [164:19]
description [169:13]               [154:12] [156:11] [165:10]      discussion [34:20] [56:7]            [166:4] [201:14]
deserve [56:2]                     [205:5] [214:1] [228:15]          [147:24] [157:9] [223:16]        doesnt [4:25] [12:13] [15:21]
designate [203:21]               difficult [98:24] [108:10]        disease [71:3]                       [25:6] [28:9] [42:5] [56:13]
designated [54:18] [78:3]          [119:19]                        diseases [71:18]                     [59:4,7] [61:1] [68:10]
designations [35:12]             dime [91:1]                       dismiss [27:18] [34:24]              [69:23] [70:15] [75:16]
designed [149:18]                dire [93:17,19] [95:19]             [39:1,8] [42:9] [66:19]            [84:20] [113:21] [125:9,10
designs [83:18]                    [240:]                            [67:17]                           ,20] [126:24] [130:4] [180:4]
desire [61:2]                    direct [23:2] [50:8] [85:14]      dismissed [19:17]                    [181:12] [183:24] [184:21]
despite [38:13] [42:12]            [96:16] [108:5] [174:17]        disorders [101:8,17] [110:11]        [188:17] [199:8] [206:8]
  [43:2] [231:19]                  [191:14] [240:7,8,,12]          displayed [35:23] [44:18]            [229:7,25]
destroying [49:6]                direction [80:12] [133:13]          [47:3] [111:20] [125:23]         doing [14:23] [28:14] [50:10]
destruction [49:14] [79:6]         [242:7]                           [126:7] [136:6] [139:13]           [58:19] [60:13] [72:7]
detail [95:6] [97:10] [111:7]    directions [50:1]                 disposed [223:5]                     [77:1] [79:14] [84:15]




                                                                                                                                   A.9
                                                    4/21/2008 Trial Transcript

[91:15] [115:12] [122:25]           driven [49:15]                   ,17]                              [58:13] [61:25] [66:20]
  [123:4] [126:17] [127:15]         driving [124:8,16]               eighties [81:18] [180:6]            [114:22] [131:1] [132:25]
  [152:20] [200:14]                 dro [157:24] [158:8] [182:2        [213:13]                          [157:22]
don [40:22]                          ,3,5,9]                         either [6:3,9] [25:20] [46:10]   enter [139:7] [218:25]
donald [191:5,9,11] [240:11]        drop [102:23] [130:10]             [47:10] [53:17] [74:9]         entered [213:18]
d-o-n-a-l-d [191:9]                   [160:14]                         [93:4] [99:22] [105:24]        entire [66:11] [116:25]
donate [90:25]                      dropped [58:5] [62:19]             [114:10] [115:15] [116:20]        [150:12] [212:17,18] [215:
done [21:20] [31:3] [39:22]         dsm [102:3]                        [145:5] [147:7] [157:20]         14] [227:5]
  [46:23] [48:10] [49:8]            dsm4 [113:22]                      [159:9] [181:4] [188:9]        entirely [17:24]
  [59:14] [60:8] [67:13]            dsmiv [102:3]                      [189:23] [202:1] [206:18]      entitled [9:4] [11:8] [70:14]
  [68:6] [74:16] [87:16]            dsm-iv [102:3]                     [209:16] [222:11] [229:11]        [81:22] [161:5] [174:17]
  [88:11] [93:5] [120:9]            due [8:12] [9:6,19] [11:10]        [234:16]                          [217:14] [219:21] [220:25]
  [125:6,15] [127:13] [128:16]        [46:23] [61:24] [65:4,10]      elapsed [215:13]                    [226:4] [228:8] [231:2]
  [130:15] [131:2] [145:22]           [76:13] [81:2] [84:20]         elect [46:2]                        [232:25] [235:9,20] [237:5]
  [146:3] [147:7] [149:11,15]         [188:14] [235:1,6,12,16,20     elected [83:17] [181:18]         entitlement [39:10] [73:23]
  [177:12] [183:10] [208:20]         ,22,23] [236:2]                 elects [210:10] [220:1]          environment [200:19]
dont [8:6,24] [9:9] [11:6]          duly [85:13] [191:13]            element [12:1]                   envisioned [160:2]
  [12:10,11] [13:14,16,21]          duplicative [23:20]              elements [53:8,17] [64:8]        epidemiologist [54:10]
  [16:7,21] [17:7,19,20,23,25]      during [7:11] [18:25] [20:4]       [123:13] [134:14] [171:24]     epidemiology [53:22]
  [18:1,2,3,4] [20:23] [22:16]        [40:17] [104:8] [105:10]       elicit [7:14]                    equation [204:1]
  [27:3] [29:5,22] [30:2]             [106:2] [117:17] [124:7]       eligibility [197:18]             era [76:17]
  [32:5,23] [33:3,16] [34:5]          [147:18] [177:11] [188:9]      else [11:5] [13:12] [80:4]       erroneously [160:5]
  [46:25] [54:8] [56:17]              [233:2,13] [235:4]               [102:24] [104:9] [128:5]       error [46:24,25] [47:1,6,17]
  [57:6] [58:9] [59:10] [61:13      duties [193:23] [214:11,12]        [130:3] [145:9] [171:1]           [74:13,19,21,23] [75:4]
 ,15] [64:16] [67:7] [70:12]        duty [177:1] [234:24] [235:9       [183:1] [199:2,6] [208:22]        [84:4] [94:20] [97:5] [122:3]
  [72:19] [73:24,25] [74:10]         ,10]                            elses [23:21]                       [147:13] [156:15] [157:5]
  [80:4,16] [82:16] [83:3,9]        dvd [90:13]                      elsewhere [36:24]                   [188:3,14]
  [84:10,17,22] [92:5,7]                                             email [36:7,19]                  errors [45:18] [150:14]
  [98:12] [107:14] [108:15]         E                                emails [54:7]                       [158:20] [186:11] [195:11,15]
  [111:6] [112:5] [113:18]                                           emergency [52:22] [54:4]         erspamer [:] [3:7,8] [10:5,14
  [114:3,8] [115:17,19]             eaja [117:10]                    empathy [136:19,21]                ,17,19] [16:12,14,16,20]
  [117:10] [119:15] [120:6,18       earlier [15:2] [48:24] [73:8]    emphasis [129:20] [155:20]          [27:15,22] [28:16,20,23]
 ,19] [121:12] [125:22]               [91:8] [110:24] [118:12]       emphasize [42:21] [97:4]            [30:10] [31:13,17,25]
  [130:3,7,9] [132:2,4] [134:         [194:10] [201:5] [202:2]       emphasized [48:13]                  [33:19,23] [34:1,5,8,16,23]
 22] [135:16,20] [142:25]           earliest [88:17]                 emphatically [56:15]                [35:19,24] [36:9] [39:16]
  [146:17] [148:18] [149:13]        early [52:12] [79:12] [157:3]    employed [191:18,20]                [56:17] [57:11] [63:11]
  [151:6] [152:1,5] [154:23]          [213:13]                       employee [54:19] [66:9]             [64:8,17] [69:5,7] [78:5]
  [155:14] [158:3,18] [160:12       earn [128:19]                    employees [83:23] [127:24]          [79:11] [82:23] [85:4,15]
 ,13,16,20] [161:7,8] [166:1        earned [48:25]                   employment [99:18]                  [88:19,21] [89:2,6,10]
 ,5] [173:3,5] [174:8] [178:12      earning [124:1]                  empty [59:9]                        [93:14] [95:2,18] [96:4,15,17]
 ,18] [179:1,10,13] [181:19,21]     easel [35:19]                    enabling [84:21]                    [99:7] [100:17,19] [101:2,6]
  [183:25] [184:3] [185:3]          easier [203:19] [239:10]         enacted [81:25]                     [106:19,23] [107:7,10,13,16]
  [187:15] [190:21] [195:10,16]     easiest [103:4] [201:16]         encourage [133:9] [229:4]           [108:6] [109:10,16] [110:2
  [204:19]                          eastern [195:8]                  encouraged [134:25] [175:          ,6] [112:3] [118:15,18]
door [151:21,22]                    easy [9:5] [20:19] [49:9]         23]                                [122:14,15] [123:12,15]
dose [35:7,15]                        [119:17] [123:7] [171:18]      end [23:22] [32:22] [38:15]         [124:13] [125:4,12,14,24]
double [75:2]                       eating [92:24]                     [55:17] [91:25] [92:1,2]          [126:3,12] [127:19,20]
doublecounting [75:2]               edit [96:12]                       [103:10] [123:6] [129:10]         [128:4,7,9,15,24] [129:4,6]
double-counting [75:2]              edition [123:17]                   [130:12] [135:21] [142:24]        [131:7,13] [133:24] [134:10]
doubt [112:23]                      editor [88:13]                     [182:6,7] [217:1,11] [218:8]      [135:18] [136:1,3,8,22,24]
down [15:11] [29:9] [37:22]         editors [90:1]                     [221:22] [225:25] [230:20]        [138:1,9,17] [139:3,22]
  [38:22] [46:8] [52:11]            edna [76:9]                        [231:12] [237:25]                 [140:6,10,13] [141:1,7,14]
  [55:15] [62:5] [75:4] [77:7,12]   effect [47:23] [49:17] [50:13]   ending [216:7] [218:23]             [142:7] [143:4] [144:20]
  [80:6] [81:19] [126:4,5]            [122:9,17] [124:18] [158:22]     [223:8] [225:20] [230:15]         [145:1,19] [148:13] [149:2
  [148:15] [156:7] [163:5]            [217:23]                         [232:14] [235:19] [238:22]       ,5,6,20,23] [150:4,7,23]
  [172:22] [173:9] [179:22]         effective [53:24] [114:13]       ends [159:5]                        [151:10,15,16,25] [152:3,10
  [181:8] [198:15] [223:4]            [160:25] [180:24] [181:3,12]   endured [103:8]                    ,11,19,24] [153:1,14] [154:
dr [24:18,22] [25:11,17]              [204:23] [213:1]               enemy [103:7] [105:9]              7,10] [155:25] [156:3,5,9,20
  [26:5] [35:6] [36:6] [51:16]      effectuated [73:15]              energy [66:3]                      ,22] [159:7,9,12,15,20]
  [52:2,3,21] [53:1,5,13,20]        effic [72:15]                    enforce [158:15]                    [160:1,23] [162:14,18]
  [54:10,19] [55:6] [59:12]         efficiencies [72:16]             engaged [121:24]                    [163:9,25] [164:2,5,16]
  [62:23,24]                        effort [26:9]                    engagement [193:2]                  [165:2,6,10,15,16,21,24]
draft [163:21] [164:9,25]           efforts [73:10]                  engaging [110:18,22]                [166:3,7,8] [167:4,12]
drafted [52:15]                     egregious [203:15]                 [111:4]                           [168:1,11,20] [169:1,13,16
drafting [143:5]                    eight [92:13] [114:23] [121:     enjoin [82:13]                     ,21] [170:24] [171:5,6,9]
dramatic [56:10]                     10] [127:1] [166:19] [180:2     enough [6:16] [32:24]               [172:23] [173:14] [174:12,20]




                                                                                                                                   A.10
                                                    4/21/2008 Trial Transcript

 [175:3,15] [182:23] [190:5]         [118:15,17] [121:11,13]           exception [26:14]                   [120:5]
   [191:1] [240:3,7,8,]                [124:5] [131:2,17,20]           excerpt [107:8] [175:3]            expires [73:24]
esoteric [183:2]                       [132:14] [133:10,12] [134:      excerpts [109:20] [174:12]         explain [9:4] [10:25] [37:19]
especially [7:16] [132:13,20]         17,20,22,23] [135:16]            exchange [14:1]                      [46:3] [54:6] [56:22] [73:9,11]
esq [:] [:8,,9,,13,]                   [140:4] [143:13,24] [144:1      excluding [36:24]                    [86:25] [91:21] [92:4,6,10]
establish [17:9] [111:23]             ,2] [145:5,10,11] [146:22]       exclusive [77:21] [87:9]             [95:5] [96:4,7] [102:1,3]
   [112:13] [115:23] [123:3]           [147:8] [150:16] [161:1,6]      excuse [100:14] [163:23]             [103:1] [113:5] [117:6]
established [164:22]                   [163:1] [173:14] [175:25]         [192:3] [219:4] [221:18]           [123:19] [125:22] [127:21]
establishes [123:25]                   [176:12,15,17,23,24]              [235:15]                           [128:6] [132:1,24] [134:11]
estimate [121:3] [124:19]              [177:2,8,14,16,23] [178:1,5]    excused [191:4]                      [149:5] [157:11] [165:10]
   [137:13,15,21]                      [179:11,15,18,19] [181:15]      execution [179:5]                    [184:16] [191:24] [194:14]
estimating [43:16]                     [182:14,19,22,23] [183:4,8      executive [64:22,23] [85:19]         [196:16] [198:5,7,23]
et [:] [3:5] [120:3] [126:15]         ,16] [184:19] [187:9,19,20,24]     [89:15]                            [200:16,18] [211:3] [215:12]
evaluate [131:21]                      [196:23] [198:20] [206:19]      exhibit [18:15] [31:18]            explained [28:23] [43:1]
evaluated [98:9]                       [207:5,25] [208:3,4,5,9,11        [32:16,18] [38:9] [42:14]          [49:23]
evaluation [54:21] [63:13]            ,14,16,17,20] [215:8,10]           [65:15] [73:6,7] [88:20]         explaining [184:22]
   [99:22,23] [106:7] [114:14]         [218:25] [219:2] [223:13,15]      [100:15,20] [101:5,8]            explanation [11:1] [144:21]
   [116:24] [132:11] [181:3,5]         [225:15,17] [228:4,6]             [106:19,22] [109:15,18]            [207:7]
   [204:23,25]                         [229:8] [230:10,12] [232:9        [110:2,5] [116:7] [118:5,9,17]   exposed [90:8] [121:9]
even [22:12] [32:13] [34:5]           ,11] [234:8,10] [236:15,17]        [125:25] [136:2] [139:15,17      exposure [66:3] [132:20]
   [36:5] [44:11] [46:1,15]            [237:15,16,19]                   ,25] [157:8] [161:23] [163:16     express [229:11]
   [51:5] [52:6] [54:1] [59:10]     evident [79:16]                     ,20] [175:16] [214:17]            expressly [67:11]
   [61:19] [62:6] [65:15]           exact [82:24] [148:18]               [215:10] [218:12] [219:2,5]      extend [46:16]
   [70:5] [73:25] [75:17]              [158:3] [173:5] [205:21]          [222:17] [223:15] [225:7,17]     extends [176:16]
   [78:15] [82:23] [91:8,14,17]     exactly [10:12] [17:8] [24:25]       [227:21] [228:6] [230:1,10       external [60:21]
   [105:5,16] [111:2] [115:19]         [29:6] [33:19] [38:19]           ,12] [231:25] [232:11,20]         extra [49:25] [99:24] [100:17]
   [116:19,24] [149:12] [182:          [66:16] [80:21] [88:22]           [233:19] [234:8,10] [236:4         [135:9] [143:2]
  24] [187:11]                         [164:21] [180:5]                 ,14,17]                           extraordinary [50:11]
event [10:22] [51:9] [106:5]        exam [49:8] [51:4] [70:6]          exhibits [17:14,17,18]               [76:24] [163:15] [166:10,15]
   [108:17] [112:15,20] [120:          [81:10] [106:12,13,17]            [18:7,12] [30:9,16,19,20,22        [168:3,12,15,22] [169:2]
  12,15] [134:15,22] [172:3]           [113:14] [115:23] [116:6]        ,25] [31:4,7,9] [32:3] [33:3,6    extraschedular [99:24]
   [201:6] [202:1]                     [117:21] [120:10] [201:12]       ,9,13,15] [44:22] [72:23]         extra-schedular [99:24]
events [201:19] [202:9]             examination [26:4,14]                [97:13] [175:14] [214:21]        extremely [35:21] [48:7]
eventually [81:19] [114:9]             [28:7] [85:14] [93:19]            [241:4]                            [207:20]
   [179:17] [189:10]                   [96:16] [108:5] [116:2,11,14]   exist [12:13] [61:19] [63:21]      eye [214:11]
ever [93:9] [94:3] [95:10]             [117:3,13,17,18] [131:24]       existed [51:23] [74:17]            eyes [88:25] [136:20]
   [133:6] [138:19] [148:23]           [171:21] [174:18] [175:8,9]       [131:20]
   [149:25] [177:20] [202:20]          [191:14] [196:24] [201:9]       existence [38:18] [59:9]           F
   [207:17]                            [202:12] [206:22] [240:7,,8       [120:12]
every [31:14,18] [36:22]              ,,9,12]                          existing [50:5]                    fabricate [119:18,19]
   [47:7] [52:24] [62:11]           examinations [96:24]               exists [122:17]                    fabrication [119:13]
   [66:8] [69:20] [71:16]              [117:25] [175:6]                expect [120:6]                     facade [51:21]
   [89:21] [96:12] [104:1]          examine [25:3] [26:20]             expedite [78:20] [135:8]           face [66:20] [113:10] [231:10]
everybody [183:1] [196:21]             [51:3]                            [173:6]                          faces [38:20]
everyone [236:5]                    examined [85:13] [113:9]           expedited [78:16]                  facetoface [231:10]
everyones [204:11]                     [118:21] [191:13]               expense [81:11] [228:22]           face-to-face [231:10]
everything [23:6] [27:10]           examiner [41:6] [51:3]               [229:6]                          facilities [36:22,24] [52:6]
   [91:14] [146:2] [156:7]             [116:16,22,25] [119:12]         experience [20:14] [41:4,25]         [53:2] [54:4,23] [55:19]
   [161:9] [169:21] [178:24]           [131:25] [132:1] [175:2]          [53:21] [73:18] [98:3]             [62:17] [116:14] [195:3]
   [185:5]                          examiners [79:25] [131:21]           [116:18] [120:24] [123:9]        facility [37:6] [195:1,2,14]
everywhere [37:5] [85:21]           examines [174:23] [214:23]           [125:2,19] [130:1] [131:14]      fact [13:1] [36:4] [37:17]
evid [241:4]                           [216:13] [218:16] [234:21]        [137:12] [140:19] [143:5]          [42:19] [45:18] [46:1]
evidence [19:1,20] [20:3,15]        examining [116:13]                   [146:9,24] [152:4] [153:2,8        [59:21] [61:22] [73:6]
   [21:17] [27:2] [35:13]           example [5:16] [38:2] [50:11        ,15,17,19] [155:21,23]              [76:16] [84:14,16,18]
   [38:9] [44:5,10] [47:4]            ,16] [51:10] [79:16] [108:17]      [160:17,24] [170:20] [177:         [98:7] [116:1] [118:23]
   [49:5,12,13] [51:13] [53:7,15]      [110:17] [111:8] [115:21]        6] [190:1] [192:23]                 [133:9] [151:17] [152:1]
   [54:15] [56:13,14] [57:8,25]        [126:19] [156:25] [201:3]       experienced [37:2]                   [162:7] [163:5] [180:12]
   [66:15] [67:24] [70:4,11,15         [214:25] [218:18] [222:24]      experiences [86:1] [119:23]          [203:19] [212:7] [226:13]
  ,17] [71:13] [72:15] [73:16]         [229:13] [230:6] [232:5]        expert [14:1,14,17,20]               [231:19]
   [74:15] [77:17,24] [80:1]           [234:4] [236:11]                  [19:23] [23:1] [24:2] [53:21]    factor [48:19] [49:14] [217:
   [81:9,12] [97:23] [98:16]        examples [98:23] [99:8]              [58:15] [64:21] [93:15]           25]
   [101:2,5] [102:20,22]            exams [106:14] [161:8]               [125:4,8] [161:18] [162:16]      factored [227:7]
   [103:7] [106:2,20,22]               [175:11]                          [189:16]                         factoring [224:13]
   [108:11] [109:6,12,13,15]        except [30:16] [31:15]             expertise [83:10]                  factors [48:23] [69:25]
   [110:3,5] [111:9,22] [112:14        [116:14] [117:10] [164:21]      experts [13:16,17] [14:7]            [80:9]
  ,17,20] [113:19,22] [114:10]         [165:6]                           [24:3] [56:24] [64:21]           facts [25:22] [45:14] [64:20]




                                                                                                                                       A.11
                                                    4/21/2008 Trial Transcript

 [82:8] [103:12] [135:11]            [51:20] [54:12] [89:11,20]       findings [36:12] [69:20]             [191:13] [238:12]
   [173:14]                            [100:11] [114:21] [118:2]        [84:18]                           force [42:13,16] [124:8,16]
factual [74:4] [80:13] [112:23]        [151:18] [158:13] [174:9]      finds [147:13] [155:18]                [196:6]
   [133:3]                             [176:5] [190:2,6,19] [210:4]   fine [4:17] [13:9,14] [23:7]        foregoing [242:6,8]
faculty [54:20]                        [211:2] [228:21]                 [24:9,10,15] [28:3] [29:7]        forever [155:4]
fail [117:12]                       field [80:12] [166:18] [211:24]     [30:7]                            forget [14:10] [92:25] [161:
failed [14:8] [53:7]                   [215:21]                       finish [16:18] [95:16] [124:17]       14] [172:18] [195:21] [223:
failing [6:9]                       fifth [11:17]                       [155:12]                            12]
fails [130:16]                      fifty [225:2]                     finished [33:23] [123:4]            forgot [122:20]
failure [40:18] [54:14] [56:11]     fiftynine [225:2]                   [124:5] [133:25] [163:11]         forgotten [87:21]
   [132:14,17,19] [220:10]          fifty-nine [225:2]                fire [109:3,8]                      form [12:13] [45:16,18,22]
   [235:1,6,13,17,23]               fight [114:12,22] [122:3,4]       fired [52:10,18] [111:3]               [79:4] [138:22] [143:18,22]
failures [40:20]                       [160:4]                        firm [108:21]                          [144:15,17] [145:3,11,25]
fair [33:17] [98:13] [118:3]        figure [5:24] [6:4,13,19]         firms [90:23,25]                       [146:2] [153:9,23] [154:23
fairer [160:7]                         [64:2] [71:21] [205:21]        first [4:10] [5:6] [11:16]            ,25] [164:9] [168:21,22]
fairfield [92:24]                   figures [164:12]                    [17:12,13] [24:21] [31:13]           [184:6] [185:9] [193:3]
fairly [7:16,17] [97:24]            figuring [148:10]                   [35:7,21] [38:23] [39:17]            [198:16,21] [201:25] [207:
   [146:24] [161:10] [176:14]       file [21:11] [45:9] [51:6,7]        [41:9] [43:7] [44:22] [58:4,23]     13,17,22,25] [208:21]
fairness [132:3]                       [75:18] [76:1] [103:24]          [59:13,25] [60:9,14] [65:17]         [209:4,5,9] [216:20] [219:21]
faith [26:9] [28:6]                    [113:13,14,17] [117:4]           [68:15,18] [70:2] [76:19]            [220:15,25] [221:2,5]
fall [21:8] [66:15] [210:9]            [121:20] [133:10,17] [134:       [78:6] [82:12] [83:7] [85:12]        [227:25] [228:13,15] [231:
familiar [101:23] [121:15]            17] [135:1,3,10,17] [137:8]       [86:2] [97:20] [99:2] [100:10]      20] [237:10,18] [238:1,24]
   [128:7,10] [142:8,15]               [141:17,20] [143:18] [144:       [101:12] [102:1] [103:4]             [239:4,13,14]
   [148:19] [177:22] [189:18]         2] [146:8,18] [150:12]            [116:17] [118:9] [136:25]         formal [228:13]
   [212:6]                             [156:15] [161:3] [175:2,11       [139:15] [140:6] [143:14]         formally [27:18]
family [120:3]                        ,12,19] [177:7] [187:12]          [162:7] [165:17] [175:17]         formed [138:19] [143:7]
far [18:12] [34:14] [54:2]             [189:3] [195:5] [196:21]         [176:1] [185:7] [191:12]          former [40:12] [175:5]
   [56:13] [77:1] [179:21]             [198:1] [204:8] [207:17,22]      [197:20,22] [198:23] [200:        forms [228:1]
   [187:17] [204:12] [218:5]           [220:14] [229:9]                1] [209:24] [212:20] [214:10]      formula [127:2]
   [225:5] [226:9] [234:18]         filed [13:16] [22:3] [43:8]         [217:22] [219:21] [228:10]        fort [130:6] [196:6]
farm [66:4]                            [46:9] [47:7] [62:1,20]          [234:15] [236:25]                 forth [54:24] [67:1,7] [153:16]
fashion [78:10] [154:25]               [63:8] [83:7] [87:7] [97:22]   firsttime [212:20]                  forum [17:21] [61:9]
   [186:14]                            [114:19] [130:13] [133:13]     first-time [212:20]                 forward [152:15]
fast [50:5] [58:13] [61:23]            [135:6] [136:25] [138:4]       fiscal [215:16,17] [219:14]         fought [160:15]
   [80:11] [114:2] [120:16,20]         [139:20] [140:2] [143:23]        [225:5] [233:8] [234:14]          found [37:11] [42:14] [47:19]
   [163:13] [169:6]                    [175:17] [176:9] [179:23]      five [16:16] [37:23] [51:4]            [49:12] [55:6] [118:23]
f-a-s-t [80:11]                        [182:15] [184:6] [185:9]         [63:5] [73:23,24] [76:14]            [121:20] [124:6] [132:6,10]
faster [70:12] [78:22] [162:           [206:14] [208:21] [215:25]       [127:8] [133:20] [180:2]             [162:9] [172:2]
  24] [229:24] [231:22]                [221:24]                         [193:17] [212:8]                  foundation [122:12] [124:24]
fault [77:5]                        files [49:6] [86:19] [92:15]      fiveplus [37:23]                       [128:2] [140:10] [144:23]
fear [21:9,24] [102:12,13]             [134:13] [142:13] [144:11]     five-plus [37:23]                      [145:7] [152:18] [156:13]
   [103:18]                            [149:25] [150:16] [153:5]      fix [37:7] [112:7,11] [195:24]         [162:12] [169:19] [172:23]
february [173:3]                       [154:16] [156:10] [157:15]       [203:18]                          foundational [123:13]
federal [:] [13:22,24] [47:15]         [160:25] [180:3] [198:17]      flat [73:7]                         four [14:25] [16:10,14,15,16]
   [61:7,16] [64:24] [66:8,11]      filing [45:22] [79:2] [98:18]     flawed [47:19]                         [17:13] [37:15] [41:2]
   [68:3,11] [69:16] [70:13,19]        [143:20] [153:23] [176:2]      floor [:]                              [63:5] [92:24] [127:8]
   [71:11] [77:14,19,21]               [177:13] [180:1,2] [216:19]    flow [95:7]                            [133:20] [134:3] [193:17,24]
   [80:17,19,20] [81:4] [82:18]        [221:5] [222:4] [242:10]       focus [57:19] [112:16]                 [194:8] [212:8] [222:2]
   [84:22] [93:8] [98:1] [158:17]   fill [82:20] [145:25] [193:1]       [118:19] [225:19] [226:4]            [235:9]
   [202:3] [215:16]                    [228:1]                          [228:8] [230:14] [232:13]         fourandahalf [16:16]
fee [91:2]                          filled [11:18,19]                 focused [34:24] [35:4]              four-and-a-half [16:16]
feel [32:22] [163:4]                filling [198:13]                    [91:7]                            fourth [11:17] [37:2] [49:22]
feeley [53:24] [54:11,15,24]        final [63:20] [67:17] [68:1]      focuses [189:5]                        [232:25]
   [60:2] [63:12]                      [131:19] [147:22] [164:9]      focusing [55:23] [215:20]           fox [40:12] [58:21]
feeleys [55:11]                        [165:4,6,11,18] [166:2]        foerster [:] [3:8,12,14,16,18]      frame [139:15,16,18] [142:2]
feels [163:1] [198:5]                  [176:18] [185:21] [187:18]     fold [122:20]                       frames [138:20]
fees [117:11]                          [223:3]                        folder [116:11,13,15,20]            frances [52:2,17]
feet [46:16]                        finalized [33:20] [34:2]            [117:2,13] [174:17] [175:4]       francisco [:] [:16]
fell [105:6]                        finally [38:5] [50:21] [51:13]      [195:10]                          frankly [18:9] [58:3] [63:15]
fellow [27:20] [121:22]                [82:6] [114:25]                follow [74:8] [76:23] [78:25]          [66:1] [74:3] [77:5] [78:11]
felonies [49:21]                    find [4:13] [6:20] [19:5]           [108:15] [111:1] [178:15]            [80:4] [83:3] [84:3]
felt [23:15] [48:12,14] [171:          [30:2] [51:10] [68:8] [84:6]     [235:23]                          free [117:9] [125:9] [192:24]
  16]                                  [98:20] [103:22] [113:1]       followed [41:15]                       [197:5]
ferret [23:22]                         [119:4] [124:5] [130:15]       following [:] [26:16] [53:12]       freeny [:9] [4:2]
fetzer [73:10]                         [163:18,23] [167:13] [188:       [217:16] [223:8] [239:1]          frequent [150:19] [228:2]
few [7:8] [10:21] [32:9]              19]                             follows [36:12] [85:13]             frequently [194:6] [198:9]




                                                                                                                                       A.12
                                                  4/21/2008 Trial Transcript

 [229:18]                         [172:20] [173:6] [185:19]         [42:21] [43:19] [44:16]           grind [66:12]
fresh [93:3]                        [213:17] [231:24]                 [45:4] [48:22] [50:3] [51:13]   gripping [52:13]
friday [5:6] [16:19]              giant [57:5]                        [56:16,21] [58:15] [60:12]      ground [41:12] [52:19]
friend [89:14]                    gigged [155:19]                     [62:11] [64:1,15,16,25]           [53:2] [73:15,17]
friends [120:3]                   give [5:15] [8:17,19] [9:2,20]      [65:4] [67:22,23] [71:13]       group [62:18] [63:1] [83:16]
front [22:10] [60:25] [82:23]       [11:8] [12:1,6,22] [14:9]         [72:21] [77:9,22] [79:7]          [85:25] [91:9] [117:9]
  [100:4,20] [103:18] [107:11]      [15:9,15,16] [16:21] [17:16       [80:19] [82:22] [83:4,22]       groups [56:24] [91:4] [118:
  [118:9] [120:18] [125:25]        ,18,19] [18:16] [29:21,24]         [88:19] [91:7] [92:7] [96:3,4    1] [146:19]
  [151:22] [195:17] [214:21]        [30:4,24] [31:1,2,9,23]          ,5,7] [101:24] [103:22]          guess [14:23] [21:7] [58:16]
frustrated [130:12]                 [32:19] [33:17] [39:11]           [104:22] [111:7] [115:20]         [69:11] [73:6]
frustrating [131:6]                 [47:22] [51:12] [72:23]           [121:14] [123:13] [128:5]       guessing [186:22]
fudge [45:9]                        [75:23] [98:23] [99:8]            [131:9] [135:10,11] [139:16     guidance [5:2]
fudged [43:19]                      [100:18] [108:8,17] [115:14]     ,22] [141:12] [146:3] [148:20]   guide [106:11,15] [118:10,12
full [70:14] [81:22] [85:8]         [119:4] [125:9] [161:9]           [151:7,23,25] [156:8,9]          ,19,25]
  [133:2] [191:8] [242:8]           [170:14,25] [183:20] [199:        [158:18] [162:14] [170:12]      guidelines [87:13]
fully [175:16] [202:11]            7] [209:7] [229:1,3,16]            [178:25] [179:6] [185:16]       guides [90:4]
fun [153:16]                      given [12:9] [28:21] [49:17]        [198:10,24,25] [209:25]         gulf [90:4]
functions [87:20] [115:9]           [75:5] [94:19] [122:5]            [210:4,9] [227:16] [232:13]     gunshot [98:21,22]
fundamental [76:8]                  [131:10] [205:13]               gold [121:23]                     guy [114:4] [115:15,19]
funding [58:4]                    gives [41:13] [88:15] [170:20]    gone [16:2] [79:16]
furnished [42:24]                   [177:4] [178:8] [214:7]         gonzales [3:16]                   H
further [96:1] [190:24]           giving [25:10] [109:3]            gonzalez [:] [7:25] [8:11]
  [195:19] [206:22] [208:6]       global [115:9]                      [13:13]                         half [24:21] [58:23] [59:13,25]
                                  glossy [76:8]                     gonzález [6:6] [28:6] [43:1]       [74:15,18,21] [78:6] [142:23]
G                                 go [5:21] [6:20] [8:21] [11:2     gonzÁlez [4:19,24] [6:24]          [194:3] [195:7,8] [238:12]
                                   ,23] [17:11] [20:9,19] [32:4]      [8:8] [9:13,22,24] [10:4,6,10   hall [163:6]
gaf [115:8] [131:22,24]             [43:13] [45:6] [47:12]           ,12,20] [12:20] [13:9,15,20]     halt [66:12]
  [132:2]                           [57:2] [60:19] [61:15]            [14:4,19,21] [25:10,20]         hamster [37:18] [75:7]
gain [214:5]                        [64:16] [67:25] [68:14]           [26:2] [32:7]                    [148:23] [149:7,8]
gainful [99:18]                     [77:7] [79:1] [81:8,11,13]      gonzÀlez [3:15] [7:22]            han [54:10]
gao [43:14] [121:15] [172:19]       [92:13,18] [96:6] [97:15]       good [3:7,9,11,13,15,17,19        hand [24:12]
gap [35:2,7,8] [42:25] [43:3]       [103:2,24] [112:5] [114:2,20     ,21,23,25] [4:2,4,6,8] [15:12    handful [205:17]
gaps [38:18]                       ,22] [115:6,12] [117:2]           ,18] [16:24] [18:18] [21:1]      handled [40:5] [117:20]
gathering [119:25] [160:25]         [121:25] [129:24] [130:9,14]      [26:9] [28:6] [50:11] [58:19]    [141:3] [190:3,6]
  [208:20]                          [131:19] [134:20] [139:22]        [76:7] [85:16,17] [89:14]       handles [38:4] [107:1]
gave [9:16] [11:18] [31:13]         [143:12,15] [145:11,14,17]        [114:5] [120:17] [129:11,14]     [193:15]
  [32:23] [33:19] [140:4]           [146:21] [147:3,9,11,20]          [144:2] [157:22] [160:7]        handling [112:25] [140:19]
gc [111:18]                         [148:14,15] [149:15] [152:        [165:5] [187:13,15] [191:16     hands [81:13] [188:18]
general [54:13,17] [57:2]          15] [153:16] [154:14] [155:       ,17] [196:24]                    happen [15:14,15] [59:10]
  [102:11] [116:19] [118:24]       2] [157:16] [158:9] [159:6]      goodness [145:15]                  [80:22] [82:21] [83:16]
  [131:18] [132:12] [141:5]         [162:17,24] [166:19] [173:      gordon [:] [3:7]                   [130:4] [133:8] [155:21]
  [147:15] [152:9] [166:17]        6] [175:2,11,12] [177:5,8,16]    gotten [90:24] [176:1]             [159:18] [178:22] [208:23]
  [167:21] [172:10] [192:19,22]     [181:18] [182:2,5,7] [184:6     govern [97:16] [106:25]           happened [4:14] [37:4]
generally [11:15] [89:20]          ,12] [188:12,25] [198:7,11]      governing [97:16]                  [51:7] [52:9] [71:4] [103:10]
  [103:9,23] [104:5] [116:5]        [202:23] [206:8] [210:12]       government [6:1] [57:6]            [104:8] [109:8] [116:22]
  [117:4] [142:16] [147:2]        goal [68:19,23] [69:10]             [66:12] [80:9] [81:20]           [117:24] [134:15]
  [160:11,25] [166:10] [169:        [88:16]                           [98:1] [117:10] [202:4]         happening [7:4] [59:17]
 2] [180:16] [204:1] [227:20]     goes [8:11,18] [9:3,6,18]         governs [87:15]                    [73:15,17] [79:9,10] [130:19]
generals [79:8]                     [24:7] [37:22] [46:8] [48:25]   grade [127:16]                    happens [50:3] [113:6]
generate [11:21] [49:9]             [74:11] [75:4] [88:14]          graduated [86:3]                   [126:22] [127:6] [143:22]
  [196:7] [212:24]                  [111:16] [113:8] [114:4,9]      grant [94:20] [97:24] [109:5]      [147:1] [150:20] [155:6,13]
generated [196:4] [200:11]          [115:1] [127:16] [130:17]         [148:2] [179:16] [180:20]        [177:12,15] [180:9] [188:1]
  [214:4,10] [215:2] [222:25]       [132:21] [133:6] [146:23,24]      [183:14] [206:20] [208:6]        [198:18] [199:3] [202:13]
generates [43:22]                   [147:15] [148:2] [156:11]         [209:16] [220:1]                 [203:7] [206:14] [209:11]
gentleman [28:19]                   [170:18] [185:9] [197:1]        granted [50:16] [157:20]          happy [12:7] [75:17] [129:22]
germans [105:11]                    [200:1] [206:9] [208:25]          [158:6,8,10,23] [160:8,9,10      [132:18] [181:11] [183:11]
gets [12:23] [24:12] [46:19]        [209:14,18,22]                   ,21] [179:18] [181:10]           harass [28:14]
  [63:20] [104:1] [108:16]        going [4:13] [6:2,15] [8:4]         [185:12,18] [187:3] [188:24]    harassed [102:25]
  [143:12,25] [146:1,23]            [10:12] [12:14,16,21]             [189:23] [224:18]               hard [13:23] [89:21] [138:23]
  [149:14] [154:20] [155:3,16]      [13:3,15,17] [15:7,9,10,15      granting [50:18] [90:7]            [142:22] [148:9] [186:12,19]
  [186:16,21] [196:23] [213:       ,17] [16:8] [19:9] [23:19]       grants [159:21] [183:7,8]          [214:20] [238:14]
 18]                                [24:2,7,24] [25:8] [26:4]         [185:22]                        harder [98:20]
getting [48:4] [56:25] [58:17]      [27:2,3,8,12] [28:18] [30:5]    graph [44:13,19] [72:20]          harm [102:13]
  [60:21] [73:23] [113:3]           [31:1,4,5,6,10] [32:2,5,12,15   great [72:20] [97:10]             hasnt [21:20] [76:18] [78:9]
  [120:1,2] [127:9] [130:12]       ,16] [33:4,14,16] [34:2,3]       greater [57:15]                    [149:15] [156:17] [220:17]
  [153:9] [160:7,8] [161:11]        [35:19] [37:19] [39:16]         green [103:14]                     [237:20]




                                                                                                                                  A.13
                                                   4/21/2008 Trial Transcript

hassanein [:] [3:18] [191:5,7     heart [8:11] [9:6,18] [40:4,25]    ,23,25] [4:2,4,6,8,19,20]          [155:20] [198:2]
 ,15] [192:6] [197:10,19]           [41:3,6] [90:12,24] [91:3]         [5:1,5,11,15] [6:5,24]           howitzer [111:3]
  [200:23] [204:4] [205:12]         [94:9] [99:1] [104:4] [106:16]     [7:2,6,13,22] [8:1,5,9]          hubbard [40:22] [191:5,9,10
  [206:13] [214:17,19] [215:        [113:20] [191:21] [192:9,12]       [9:7,13,19,25] [10:2,6,10,15      ,11,16] [193:7] [214:20,22]
 7,11] [218:4,12,14,24]             [193:25] [196:5] [201:18]         ,21] [11:7,12] [12:5,19,20]         [218:15] [219:8,22] [222:19]
  [219:4,7,18,20] [222:16,18]       [203:20,23] [214:2]                [13:9,10,13,15,21,24,25]           [223:21] [225:9,19] [227:24]
  [223:12,17,20] [225:6,8,14      hearts [104:14,15] [121:23]          [14:5,19,22] [15:12,18]            [230:4] [232:3] [233:22]
 ,18] [227:21,23] [228:3,7]         [192:8]                            [16:1,20,24] [18:19] [19:8,14      [234:2] [236:9,19] [237:5]
  [230:1,3,9,13,24] [231:1,25]    heather [:] [3:11]                  ,15] [20:1,10,17] [23:3,4,10        [238:14] [239:1] [240:11]
  [232:2,8,12,22,24] [233:19      heavy [6:16]                        ,25] [24:4] [25:5,10] [26:2,22]   h-u-b-b-a-r-d [191:10]
 ,21] [234:1,7,11] [236:8,14      heck [130:18]                        [27:17,22] [28:8,16,24]          hud [66:6]
 ,18,22,24] [239:8,11,17]         held [34:20] [56:7] [67:11]          [29:15] [30:7,20] [31:13]        huge [35:16] [42:13] [44:23]
  [240:12]                          [68:8] [147:24]                    [32:7,20,25] [33:24] [34:5,13      [59:20] [71:12,15] [81:18]
hassinan [3:17]                   help [4:23] [88:15,16] [90:23]      ,17,23] [35:16,20,25] [36:10        [124:3]
havent [18:15] [27:17]              [91:8] [94:15] [101:24]           ,25] [38:9] [39:7] [44:15,17      hundred [91:4] [189:2]
  [34:10] [42:19] [78:15]           [116:2] [119:7] [130:22]          ,21] [46:25] [49:19,23]             [205:18,24]
  [82:25] [181:3] [235:2]           [161:2,5] [169:9,16] [198:3]       [56:5,13] [57:8,25] [58:3]       hundreds [91:18] [111:4]
having [20:7,13] [27:4]             [228:1]                            [59:12] [61:5] [63:15,22]        hypertext [111:18]
  [85:12] [139:17] [144:6]        helped [4:24] [39:22] [86:13]        [64:12,15,20] [66:1] [67:21]
  [148:9] [186:17] [190:15]         [94:5] [177:21]                    [68:2] [69:4] [72:8,19]          I
  [191:12] [212:20] [228:19]      helpful [6:10,12] [64:25]            [73:13] [74:3] [75:14]
head [27:8,19] [39:13]            helping [62:12] [86:13]              [76:19] [77:10,12] [79:4]        i.e [203:3]
  [50:19] [52:10] [92:22]           [94:16] [169:25]                   [81:1,5,15] [82:6] [83:1,22]     ice [92:24]
  [158:4]                         helplessness [102:14]                [84:3,19,24] [85:4] [89:3]       idea [165:12]
headed [42:16]                    helps [87:13,17,18] [91:16]          [93:14,17] [95:18] [96:2,4,15]   iden [241:4]
header [217:4] [219:19]           henhouse [58:21]                     [99:4] [100:14] [101:3]          identified [54:16] [55:21]
  [223:18] [237:1,2,5] [238:15]   hereby [242:6]                       [107:7] [109:10] [122:11,14]     identify [21:22] [81:9] [91:25]
headers [215:20] [230:25]         herein [85:12] [191:12]              [123:8,14] [124:10,23]              [180:13] [198:2,3] [234:25]
  [232:23] [236:23]               heres [64:17] [74:4] [169:23]        [125:4] [127:25] [128:17,25]        [235:22]
health [35:6,9] [38:18,21]          [177:14]                           [130:2] [134:7] [135:23]         identities [21:10] [22:4]
  [39:8] [51:14,17,18,23]         hero [121:25]                        [136:3,22] [137:17,23]           ied [51:10]
  [52:5,16,18,24,25] [53:3,8      herself [132:1]                      [138:7,15] [139:10,14,23]        ig [79:18]
 ,14,15,23] [54:1,4,25]           hes [28:3] [29:12] [31:16]           [140:6,22] [141:7] [142:4]       ignore [19:3,13,25] [161:7]
  [55:8] [57:7,19,21] [58:13]       [62:12] [64:14] [96:5,7]           [144:18,23] [145:6] [148:8       ignored [22:8] [147:8]
  [59:19,20,23] [60:3,8]            [137:17] [150:6] [152:8]          ,11,25] [149:3,17] [150:2,21]     ii [105:11]
  [62:7] [63:11] [65:3] [67:3]      [153:11] [155:10] [169:23]         [151:20] [152:7,17,19]           ill [65:5] [85:21] [87:3]
  [73:5,23,25] [84:11] [197:6       [181:11] [198:23] [217:24]         [153:11] [154:5] [155:22]           [115:11] [165:15] [166:9]
 ,12]                             hey [104:11]                         [162:11,15] [163:7,20,25]           [184:18] [210:9]
healthy [160:22]                  hhs [66:1]                           [164:8,16,19] [165:1,19]         illegal [66:21]
hear [7:8] [19:5] [27:1]          high [16:6] [46:24] [48:7]           [166:3] [167:1,9,23] [168:8      illustrated [46:20]
  [44:9] [53:20] [54:18]            [55:18,21] [63:16]                ,17] [169:11,13] [170:6]          im [6:2,15,21] [9:13] [10:12]
  [56:14] [57:3] [58:2] [60:16]   higher [36:5] [43:22] [46:1]         [171:3,12,20] [172:24]              [12:24] [13:6] [15:9,14,16]
  [65:5] [68:22] [72:7] [76:23]     [48:21] [132:2] [158:2]            [182:11] [190:25] [191:1]           [19:22] [23:17,18,19]
  [84:12] [178:14] [198:24]         [188:19] [213:2]                   [197:7,10] [215:8] [217:24]         [26:7] [44:16] [51:13]
  [209:20]                        higherlevel [213:2]                  [218:24] [223:12] [225:15]          [52:16] [56:20] [60:11,12]
heard [14:25] [35:3,5] [36:17]    higher-level [213:2]                 [228:3] [230:9] [232:8]             [64:15] [77:10] [85:19]
  [51:15,16] [56:10,13]           highest [49:4]                       [234:7] [236:15] [239:18]           [88:19,23] [90:18,20]
  [58:22] [59:12,24] [60:14]      highlight [237:3]                  honorable [:]                         [92:7] [94:16] [103:6]
  [61:7] [64:21] [67:15]          highlighted [54:14]                hope [6:5] [26:23] [119:3]            [104:22] [107:8] [109:3,19
  [74:3] [79:23] [81:3] [84:12]   highlights [164:13]                hopeful [78:23]                      ,24] [112:5] [115:24] [122:21]
  [148:23] [152:15,22] [177:      highly [53:21]                     hoping [239:6]                        [123:12] [129:17,24] [131:
 20] [189:12,19]                  highwater [63:16]                  horrible [42:14]                     9] [133:23] [136:22] [139:1
hearing [24:22] [36:2]            high-water [63:16]                 horrific [114:24]                    ,22] [141:11,12] [142:25]
  [38:6,7] [42:6] [51:2,15]       hint [163:17]                      hospital [37:7] [106:2]               [144:6] [148:9] [151:15]
  [60:14] [61:3] [62:12]          hire [50:25]                       hotline [59:24]                       [153:16] [154:7] [155:10,15]
  [67:8] [132:19,20] [194:11]     hired [84:1] [88:12]               hour [6:8] [102:18]                   [162:5,14] [166:13] [170:12]
  [210:19] [228:9,11,12,14,20     historically [173:20]              hours [62:16] [123:25]                [172:24] [173:10,24] [174:
 ,23] [229:19,25] [230:17]        history [116:25] [119:21]            [126:10,20,22] [127:1,5,8]         4,8] [177:13,21,22] [179:3]
  [231:7,10,20]                   hit [109:3]                          [130:11] [143:11]                   [181:7] [183:6] [185:16]
hearings [49:24] [62:2]           hmm [105:19]                       house [78:9]                          [186:20] [191:23] [193:10]
  [65:12] [82:10] [93:5]          hoc [32:14]                        housekeeping [109:11]                 [195:20] [199:13] [205:21]
  [209:13] [228:15] [229:5]       hold [146:4,5] [162:1] [211:       housing [66:6]                        [209:19] [210:3] [232:13]
  [231:3,14,17]                    10,15]                            houston [92:22] [193:10,11            [234:22]
hears [84:6]                      home [105:8]                        ,14,17] [196:1,6] [205:19]        imagine [45:25]
hearsay [99:5] [124:10]           honest [55:13]                     however [4:20] [18:25]             immediately [60:7] [66:12]
  [130:2]                         honor [3:7,9,11,13,15,17,21          [25:1] [30:22] [130:5]           immense [107:7]




                                                                                                                                     A.14
                                                4/21/2008 Trial Transcript

immunity [63:21]                indicted [49:5,20]                 [98:1]                            [154:16] [163:12] [179:17,24]
impact [40:8,19] [122:6]        indirect [127:12]                 interested [48:3]                    [180:7,19] [183:10,19]
  [131:14] [203:15] [207:6]     individual [12:21,23] [13:2]      interesting [48:10] [80:20]          [184:9] [185:21] [187:2]
impacting [41:13]                 [24:20] [42:9,10] [61:1]           [128:24]                          [195:17,22] [198:25] [206:
impartial [98:2]                  [62:18,22,25] [64:12]           interests [58:14]                   24] [207:20] [208:7] [218:9]
implement [53:8] [54:14]          [68:2] [96:22] [99:11,17]       interior [66:5]                      [221:23]
  [68:6] [77:16,17]               [100:12,24] [132:14,16]         interject [63:4]                  issued [40:11] [52:17]
implementation [53:24]            [198:12] [205:2,9] [206:2,3     interjecting [64:5]                  [54:12] [78:15] [80:21]
  [54:11] [64:12]                ,6,9] [213:3]                    internal [54:7] [55:24]              [120:20] [166:18] [169:3]
implemented [53:11,17,19]       individualized [109:2]            internally [36:3]                    [182:22] [183:3] [184:14,18]
  [64:9]                        individuals [21:16,23]            internet [165:7]                     [207:1] [208:13,15,18,22]
important [5:17] [17:6]         infantry [104:4] [113:20]         interpol [86:23]                     [237:20]
  [23:12] [30:14] [32:7]          [201:17]                        interpretation [188:5]            issues [4:25] [29:3] [35:4]
  [35:13] [47:4] [48:15]        inference [20:20]                 interrogatories [140:4]              [42:4,6,7] [51:14] [52:24]
  [53:16] [58:1] [71:15]        influence [49:25] [194:23]           [142:1]                           [58:13,22] [62:7] [65:4]
  [72:12] [103:20] [105:2,22]   influences [194:14]               interrogatory [6:25] [7:5,13         [66:15] [68:14] [71:17,25]
  [111:13,19] [123:1] [141:8]   influx [72:17]                      ,15] [10:24] [12:22] [45:24]       [72:2] [73:3,5] [76:10,16,21]
  [162:10] [163:3]              informal [61:18,23] [146:20          [136:10] [137:3] [146:12]         [83:14] [87:18] [93:11,12]
importantly [5:8]                ,21] [161:3] [163:12] [194:11]      [147:16]                          [96:6] [114:12] [125:16]
impose [6:22]                     [209:20]                        interviews [128:14]                  [127:1] [132:8] [147:7]
impossible [14:12] [32:15]      information [4:13] [6:3]          intra [40:17]                        [180:1,4,13] [181:10]
impression [157:18]               [7:14,17] [8:17] [9:17]         intraagency [40:17]                  [183:16] [184:21] [197:23]
impressions [168:21]              [10:7] [11:2,4] [12:22]         intra-agency [40:17]                 [237:14]
improper [40:10] [150:13]         [13:1] [19:18] [25:16]          intranet [214:7] [215:2,5]        issuing [50:4] [216:11]
improved [86:14]                  [36:15] [44:4] [75:23]             [218:20] [222:22] [225:12]        [217:20] [221:15]
improvement [57:20]               [77:11] [119:25] [135:7,8,9]       [230:7] [232:6] [234:5]        itemized [66:21]
improvements [57:15]              [172:20] [173:7] [195:17]          [236:12]                       items [5:1,3,5] [25:2] [151:11]
inaccessible [52:8]               [198:20] [201:21] [202:2,10]    introduce [38:9]                  itself [28:22] [63:4] [64:5]
inaccurate [33:11] [137:5]      initial [11:16,19] [21:6,7,12     introduced [78:7]                    [80:25] [125:20] [149:22]
inadequacies [207:2]             ,15,18,22] [22:7] [23:6,11,14]   introducing [20:3,11]                [162:13] [167:10]
inadequate [174:11]               [73:20] [74:7] [81:7,16,23]     inundated [53:3]                  iu [99:13,14,19] [115:16]
incarnation [102:8]               [161:8] [191:10] [237:17]       invalid [152:5]                      [185:2]
incentive [40:9] [43:22]        initially [22:20] [179:23]        investigated [79:19]              iv [102:8]
  [48:1] [49:3,15] [79:23,25]   initiative [59:20] [190:15]       investigations [79:20]            ive [76:15] [87:20] [90:10]
  [80:5] [128:23] [129:3,4,7]   initiatives [51:18]               investment [57:17]                   [91:24] [93:5,6] [100:5]
  [156:24]                      injunction [35:3] [36:2]          invitation [84:3]                    [163:18,23] [166:5] [171:7]
inch [30:20]                      [42:6]                          invited [90:23]                      [174:4] [175:10,21] [189:19]
incident [36:1] [61:11]         injunctive [65:24,25] [79:21]     involve [190:12,17]
  [79:12] [98:19] [112:18]      injury [38:11] [45:5]             involved [90:5,15] [91:10]        J
incidents [106:1] [149:25]      inn [92:24]                          [124:3] [135:22] [138:20]
include [62:4] [73:2] [142:18   inner [94:23]                        [145:2,24] [161:12] [174:9]    jack [97:9] [118:24] [120:8]
 ,19,21,22] [175:4] [196:12]    inpatient [37:1,2,8]              involves [158:14]                 james [:] [:] [3:5,23]
  [227:13]                      input [212:20]                    involving [125:17]                january [235:5,15,25]
included [111:16]               inquired [8:13]                   ira [36:16]                       job [49:1] [52:11] [58:19]
includes [111:17] [187:6]       inservice [61:10]                 iraq [45:2] [51:10] [55:4]          [83:23] [85:18] [86:2,4,23]
  [192:11] [227:5]              in-service [61:10]                   [91:7] [145:15] [179:25]         [102:22] [117:6] [129:14]
including [40:8] [86:16]        inside [199:18,20]                   [180:3] [196:8]                  [202:7]
  [93:16] [106:15] [164:23]     insisted [77:21]                  ironic [44:21] [81:17]            jobs [52:12]
  [193:23]                      inspector [54:13,17] [79:8]       ironically [53:13]                joined [42:17]
inconsistent [50:2] [128:25]    instance [219:25] [220:14]        isnt [22:15] [30:13] [32:16]      joining [40:1]
  [131:24]                      instances [98:5]                     [58:25] [63:18,19] [64:18]     joint [39:18] [85:19] [89:15]
increase [44:23] [59:21,23]     instead [14:24] [50:4] [104:         [68:7,24] [71:10,22] [75:8]      [104:22] [106:16] [172:16]
  [71:12,15] [72:11] [76:16]     7] [210:16]                         [84:17] [93:24] [95:18]        jones [177:8,10]
  [77:4] [117:1]                instruction [164:14] [166:18]        [121:19] [129:9] [133:13]      journal [57:5]
increased [72:8]                instructions [50:6,17]               [155:24] [156:2,3] [165:23]    js [104:22]
incredibly [29:3] [55:18]         [163:12]                           [225:4]                        jsrrc [172:21] [173:4,9,12]
  [67:12]                       insurance [70:25]                 issuance [50:1] [154:22]            [202:2,9]
indeed [5:12] [11:1] [51:24]    integrated [57:21]                   [207:15] [216:18]              jssomething [104:22]
  [63:17] [73:17]               intellectual [87:21]              issue [6:11,24] [8:5] [9:8]       js-something [104:22]
indicate [125:21]               intend [140:11]                      [24:16] [25:23] [32:8]         judge [9:4] [18:24] [59:7]
indicates [134:17]              intended [7:14]                      [39:7] [46:24] [47:25]           [64:3] [65:18] [85:20]
indicating [30:21] [36:7]       intense [102:13]                     [48:22] [49:22] [56:1]           [92:4] [123:19] [143:1]
  [68:14] [89:24] [179:23]      interact [169:24] [193:9]            [58:23] [67:14] [68:2]           [151:5] [157:13] [171:16]
  [181:8] [208:8] [213:16]      interaction [105:9]                  [70:3] [72:2,3,5,13] [73:13]     [181:23] [183:1] [187:17]
  [222:4,5] [238:19]            interest [20:22,23] [48:2]           [76:24] [78:4,11] [80:7,19]    judges [32:23] [146:23]
indicator [52:1]                  [56:24] [62:4,7] [78:22]           [116:5] [151:3,19,25]          judgment [64:6] [135:12]




                                                                                                                                    A.15
                                                   4/21/2008 Trial Transcript

judicial [49:25] [68:20]          knowledge [25:22] [27:12]          [150:6] [152:8] [153:11]           [158:8] [159:16,20] [173:23]
  [69:17] [77:3] [78:24]            [29:6] [94:23] [130:21]            [154:6] [197:7] [217:24]           [174:6] [204:23,25]
  [81:24]                           [138:10] [140:1,19] [152:23]    leads [48:23]                      levels [82:2] [205:5]
jump [155:10]                       [189:13]                        learns [185:7]                     lexisnexis [89:22]
jumps [78:12]                     knowledgeable [84:16]             least [9:4] [74:18] [112:19]       liaison [211:24]
june [60:1]                       known [31:20]                        [156:18] [179:3]                liberal [115:24]
jurisdiction [68:9] [77:21]       knows [14:11] [27:10,11,21]       leave [13:11] [15:10] [21:11]      liberalized [81:25]
  [81:1] [87:8] [170:1,7,9,18]      [73:18] [122:12] [123:10]          [44:16] [73:24] [88:5]          lie [55:17] [75:12]
jury [17:7] [20:23]                 [145:7] [163:21] [172:25]       leaving [26:14]                    life [41:1] [152:20] [172:18]
justice [:6,] [40:16] [86:23]     kussman [24:18,22] [25:5,11       led [98:19]                        lifelong [54:19]
                                   ,17]                             left [17:12] [89:15] [158:9]       likely [120:6] [231:21]
K                                 kyle [:9] [4:2]                      [172:17]                        lily [73:10]
                                                                    leg [8:23] [105:6]                 limine [4:18] [5:4] [13:16]
kang [54:10]                      L                                 legal [24:3,5] [39:19] [81:22]        [14:24] [17:11] [24:2]
katz [36:16] [62:24]                                                   [82:1] [85:20] [86:12]          limit [153:10]
keep [17:21] [22:4] [73:14]       labor [66:6]                         [117:14,16] [167:2] [168:17]    limitation [229:14]
  [75:4,10] [93:3] [104:21]       lack [53:6] [54:4] [80:10]           [169:12] [170:8,9,15]           limited [49:12] [67:5] [81:7]
  [149:11] [214:11]               lacking [80:10]                      [211:20]                           [194:17] [233:4]
keller [27:9] [77:8]              lacks [172:23]                    legion [90:12,19,24] [91:2]        limiting [181:17]
kept [72:17]                      lady [156:6]                         [92:12,14,15] [98:25]           limits [15:17] [63:24] [82:19]
key [39:3] [52:1] [53:8]          lake [41:9] [194:1] [195:1,7         [117:7] [125:16] [130:23]       line [34:9] [73:6] [152:18]
  [68:4] [166:4]                   ,14] [211:17]                       [132:6] [156:12] [190:3]           [203:11]
kill [111:5]                      lancet [57:4]                     legislation [78:7]                 lines [45:6] [154:8,11,13]
killed [111:3]                    language [182:25]                 legislative [78:12]                linkage [116:23] [134:16]
kind [43:21] [44:21] [48:16]      laptop [4:13]                     length [70:1] [194:22]                [172:6] [185:1]
  [58:25] [62:5] [63:3] [75:21]   laptops [4:11,12,15]              lengthy [7:12] [108:13]            linked [108:25] [111:18]
  [77:20] [78:1] [79:11]          large [60:22] [162:25]            lepley [:13] [3:19] [11:12]        list [22:20] [23:14] [31:1,2,4
  [103:4] [120:9] [228:1]         larger [234:23]                      [12:16,19] [14:23] [15:3,12       ,14,15,23] [32:1] [97:17]
  [229:3]                         largest [41:20] [193:17,18]         ,18,25] [16:24] [17:1,8,11]         [104:3]
kinds [60:8] [103:3,20]           last [4:21] [6:6] [8:13,25]          [18:6,18] [19:8,14] [20:10,13   listed [5:13] [31:18]
  [180:25]                          [9:24] [10:1,3,4,21,22]           ,18] [21:1,4,15,21] [22:3,15]    listen [57:25]
knee [180:8]                        [12:25] [21:4,8] [24:16]           [23:3] [24:1,9,12,16,21]        listing [216:4]
knew [22:22]                        [25:15] [32:9,21] [33:1,3,20       [25:5] [26:22] [27:1,16]        lists [52:7] [207:5] [212:24]
know [4:20] [5:22] [7:23]          ,22] [34:2] [37:1,5] [38:2]         [28:8] [29:15,17] [30:1,7,9     literally [32:10] [115:7]
  [9:21,22] [11:6] [12:11]          [51:20] [57:10] [58:8]            ,11,15,19] [31:3] [32:3,20,25]      [135:17]
  [13:16] [15:10,11] [16:7]         [66:14] [71:14] [72:23]            [33:25] [34:13] [56:5,9]        little [4:24] [7:2] [24:11]
  [17:19] [18:12] [19:22]           [78:14] [83:7] [94:5,7,11]         [88:18] [240:]                     [40:22] [43:3] [44:24]
  [22:6,22,23] [23:12] [26:4]       [95:14] [99:1] [101:21]         less [60:1,23] [99:25] [185:          [46:8] [86:22] [88:18]
  [31:8,11] [32:5] [33:3,7,23]      [109:25] [120:21] [125:18]        15]                                 [95:5] [112:4] [120:23]
  [34:5] [45:3] [54:8] [56:17]      [157:18] [175:2] [176:5]        let [4:20] [18:18] [20:19]            [136:22] [143:2] [164:17]
  [62:6] [66:15] [67:22,25]         [190:14] [191:10] [199:5]          [34:18] [73:19] [76:12]            [165:7] [185:15] [229:15]
  [69:1,22] [74:2,17] [75:8]        [207:12] [210:3,7,8,9]             [86:25] [89:11] [92:4,8]        lives [103:18]
  [78:9] [80:4] [82:13] [83:10]   late [7:2] [102:23] [210:6,7]        [98:3] [103:25] [104:13]        llp [:]
  [94:18,21] [95:7,10,22]           [213:13]                           [115:12] [117:22] [119:3]       lobbyist [58:17]
  [98:12] [100:2] [105:12]        later [22:1,3] [92:5] [114:7]        [124:17] [125:12] [131:8,9]     local [74:13] [105:17] [228:
  [106:17] [116:22,25] [120:        [120:23] [123:22] [144:4,7]        [136:2] [147:23] [152:10]         24] [231:8] [232:17]
 19] [122:21] [123:1] [125:1]       [195:18] [207:16] [213:8]          [154:8,12] [176:18] [178:13]    located [193:10] [196:6]
  [128:2] [129:25] [130:3]        laudable [57:1] [74:3]               [188:25] [221:18] [233:8]          [199:17] [200:11]
  [132:3] [142:25] [148:7,15      law [16:19] [24:11] [40:13,14     lets [13:20] [17:11] [45:6]        location [62:16]
 ,17] [153:25] [155:11]            ,15] [45:14,18] [50:13]             [79:1] [97:15] [100:17]         log [5:6,18]
  [157:15] [158:18] [159:14,18]     [65:8] [78:10] [81:5] [85:24]      [104:3] [108:4] [134:13]        logic [195:20]
  [167:7] [170:3,23] [173:1,3       [86:3] [88:15] [89:19]             [141:15,16] [145:20] [146:      logical [135:5] [195:11]
 ,5] [174:8] [179:10,25]            [90:14,15,23,25] [100:2]          25] [154:14] [189:1] [194:6]     long [7:15,20] [8:19] [16:7]
  [181:23] [184:17,21] [186:        [112:22] [170:21] [187:24]         [201:2] [231:2] [237:7]            [29:3,4] [70:1] [79:3] [108:
 12,18,20] [187:14] [190:21]        [188:5,7]                       letter [6:10] [50:6] [120:16,17      14] [111:1] [121:3] [129:18]
  [195:19,22] [198:2] [200:15     lawyer [27:23] [50:25]              ,20] [141:21] [154:21]              [137:13,22] [139:2] [140:20]
 ,16] [201:16,17,20] [202:5,6]      [62:5,9] [82:3,4] [89:21]          [163:15] [164:9,10] [168:13]       [141:2,13] [143:7,14]
  [203:1,16,22,23,25] [204:1        [117:22] [118:4] [190:17]          [169:6] [177:19,23] [193:1]        [144:4,16] [146:9] [148:16]
 ,2,18,22] [205:16,22,24]         lawyers [6:18] [28:9] [39:24]        [199:1,3,4,5] [200:25]             [198:7,10] [211:10] [216:12]
  [206:6,16,22] [207:19]            [49:10] [62:2] [81:16]             [201:24]                           [217:1,11,18] [221:8,22]
  [208:2,6,10] [209:1,5,12,13       [90:14] [91:1,9,15] [130:24]    letters [36:20] [80:11] [87:19]       [222:13] [226:22,25] [231:
 ,24] [210:1] [212:1,12,16,18       [161:11] [190:16]                  [105:8] [163:13] [202:23]         16] [238:4]
 ,21,22,23,25] [214:1] [215:      lay [43:6] [102:11] [128:2]          [234:24]                        longer [43:12] [48:6,8]
 24] [219:10,11] [221:3]            [140:10] [184:24]               level [16:6] [47:20] [59:5]           [60:12] [70:2] [121:4,18]
  [227:5,6] [229:7,23] [231:23]   leader [86:17]                       [71:9] [77:23] [84:11]             [122:5] [137:21] [138:6,11]
knowing [156:16]                  leading [57:20] [134:7]              [119:18] [134:4] [137:14]       longstanding [57:18]




                                                                                                                                    A.16
                                                   4/21/2008 Trial Transcript

look [17:22] [18:16,17]           [174:12]                           mars [103:14]                     medicaid [66:2]
  [23:23] [30:16,23] [33:18]      m211mr [109:22]                    massachusetts [:]                 medical [35:4] [36:16]
  [38:15] [40:15] [44:24]         m21-1mr [109:22]                   massive [64:24] [68:6]             [44:1] [49:6,8] [51:3] [52:20
  [45:11] [50:18] [51:4]          m211r [109:20]                      [83:11,23]                       ,22,23] [53:12] [54:23]
  [56:23] [63:25] [68:1]          m21-1r [109:20]                    master [83:22]                     [56:12] [57:4] [58:22]
  [71:15] [72:3] [80:2,8]         m214 [91:24] [123:17,23]           match [113:3]                      [59:2,3] [60:4] [61:18,21]
  [81:13] [89:4] [92:1,2,15]        [124:25] [125:17] [138:5]        material [26:1,3] [28:7]           [62:7,16,17] [63:3] [64:6]
  [98:11] [103:22] [105:7]        m21-4 [91:24] [123:17,23]           [29:12] [30:18] [82:9]            [70:6] [81:10] [83:12]
  [107:14] [110:19] [111:14,25]     [124:25] [125:17] [138:5]         [176:15,17]                       [96:24] [105:4] [114:4]
  [112:8] [120:8] [121:21]        m21mr [167:7]                      matter [7:6] [13:19] [15:4]        [115:23] [171:24] [177:14]
  [135:17] [141:15,16] [146:      m21-mr [167:7]                      [22:10] [65:8] [80:14,22]         [184:25] [196:22] [201:7,9]
 8] [151:5] [161:23] [163:2,11    m24 [123:19]                        [156:11]                          [202:12] [206:23] [229:15]
 ,15] [167:14,20] [177:9]         m241 [123:19]                      matters [6:16] [29:18]            medicare [66:2]
  [185:19] [186:6,15,19]          m24-1 [123:19]                      [63:25]                          meet [197:18]
  [190:11,13] [194:16] [195:      maccormack [79:9]                  matusak [41:15]                   meeting [153:18]
 9,11] [203:17] [238:13]          machine [49:7]                     max [92:13]                       meets [196:25]
looked [80:5,7] [91:24]           main [34:8,9] [43:24] [110:14]     maximum [76:2]                    member [54:20] [135:14,15]
  [97:5] [118:2] [125:16]         mainly [42:4]                      may [4:17] [18:25] [19:11]         [173:17] [228:24] [229:15]
  [129:22] [135:6] [138:13]       major [34:10] [38:11] [40:2]        [21:17] [35:18] [56:9]            [231:8] [235:3]
  [140:16,17] [141:2] [144:11]      [47:25] [90:25] [99:9]            [62:6] [71:18,19] [73:11]        members [95:23] [228:24]
  [145:13] [153:5] [169:8]          [132:21]                          [87:20] [89:3] [95:4] [104:25]    [229:21]
looking [66:16] [78:13]           majority [78:9] [196:10]            [114:4] [116:15] [119:12,24]     memo [54:15,24] [60:2]
  [100:18] [105:9,24] [136:25]    making [62:8] [73:14] [74:3]        [127:4] [129:13,14] [131:19       [63:12,13]
  [143:17] [160:24] [190:1,15]      [78:16]                          ,21] [134:18,20] [135:21]         memorandum [53:24]
  [195:20] [204:11] [210:3]       man [27:10] [39:19]                 [137:8] [146:21,22] [156:14       [54:11]
  [234:23] [238:15]               manage [64:24]                     ,15] [161:19] [175:4] [180:2]     memory [185:16]
looks [113:16] [119:6]            management [46:10] [72:16]          [182:18] [210:9] [211:13]        men [103:14]
  [150:13]                          [130:25] [147:3,4] [210:12]      maybe [6:22] [8:23] [16:16]       mental [51:18,23] [52:5,16,17
loop [113:2]                        [212:9,19] [213:1,3,9,22]         [17:3] [72:21] [88:25]           ,24,25] [53:3,8,14,15,23]
lose [73:24] [104:7] [129:13]       [217:17] [222:12] [223:24]        [108:18] [128:3] [135:7]          [54:1,4,24] [55:8] [57:19]
loss [132:20]                       [224:5,7] [226:8,10]              [156:19]                          [58:13] [59:19,20,23]
lost [64:15] [81:17]              manager [41:9] [202:23]            mayes [10:13] [95:11]              [60:3,7] [62:7] [63:11]
lot [6:21] [20:21] [23:5,20]      manager/adjudication                [164:24]                          [73:5] [101:8,16] [110:11]
  [28:24] [29:3] [35:4] [37:11]     [211:1]                          mccoy [97:9]                       [114:24] [132:11] [160:14]
  [43:12] [44:22] [45:4]          managers [48:18] [98:8,9]          mcdonald [76:9]                   mentally [115:11]
  [46:11] [47:23] [48:8]            [124:1] [127:13] [202:24]        mcnamee [:20] [4:4,5]             mention [26:8] [58:8,9]
  [58:2,22] [61:17] [68:13]       managing [41:17] [127:17]          mean [5:24] [8:14] [18:2,8]        [59:21] [62:21] [63:8]
  [76:8] [104:9] [111:5,8]        mandatory [192:20]                  [21:13] [29:1] [58:18]            [69:11,22]
  [117:11] [127:3] [129:21]       manner [58:12]                      [77:22] [79:18] [95:7,9]         mentioned [46:7] [48:24]
  [132:2,21] [138:21] [142:12]    manual [39:24] [87:9,15,18]         [100:5] [109:24] [112:17]         [51:16] [58:4] [76:15]
  [158:18] [161:16] [179:4]         [89:19] [102:7,8] [103:5]         [125:9] [127:7] [146:5]           [101:7] [132:23] [172:16]
  [180:1,5] [186:13] [200:10]       [107:7] [109:18,21] [110:7        [147:19] [150:10] [159:5,8]       [194:10,25] [211:2] [226:6]
  [203:24]                         ,15,25] [111:14,17,21,22]          [160:15] [162:22] [179:13]        [231:3]
lots [122:25]                       [123:17,19,23,24] [124:25]        [204:25] [205:25] [209:3]        mere [54:12]
loud [132:21]                       [125:2,17,20] [128:8,15]          [217:5,14] [221:1,12]            merit [80:10]
love [57:6]                         [131:23] [167:5,7] [170:13        [222:9] [224:16] [225:3]         merits [194:16]
low [115:10] [225:4]               ,18] [174:13] [175:12]             [226:5]                          mess [123:7]
lower [132:1] [185:20]            manuals [113:16]                   meaning [121:23]                  messengers [55:25]
  [227:16] [238:6]                map [25:11]                        meaningful [81:2]                 metal [115:13]
lump [58:5]                       march [35:4] [36:17] [49:24]       meaningless [53:11]               michael [12:16] [73:8]
lung [66:7] [106:16]                [53:9] [61:19] [99:1] [172:21]   means [115:10] [127:3]             [239:9]
luxury [14:6]                       [215:3,16,17] [217:1,11]          [149:10] [150:11] [156:14]       microphone [192:3]
                                    [218:8] [219:14] [220:6,19]       [159:7,9,12,14,17] [180:10]      mid [156:18]
M                                   [221:9,22] [222:14] [224:11]      [186:4]                          mid80s [156:18]
                                    [225:25] [230:20] [231:12]       meant [109:12]                    mid-80s [156:18]
m.d [:] [3:5]                       [233:7,11,12] [235:5,16]         measure [123:24]                  middle [76:5] [116:10]
m21 [87:9,14,15] [91:24]            [236:1] [237:25]                 measured [127:13] [220:22]         [191:9]
 [107:2,6] [109:17,20,22]         marcus [52:21]                      [221:19]                         military [40:3,24] [41:2,6]
 [110:1] [123:17,23] [124:25]     marine [104:25]                    measurement [138:3]                [104:18] [172:7] [191:21]
 [125:17] [138:5] [167:7,14]      maris [53:20,21]                   measures [54:24]                   [196:21,24] [200:12]
 [174:12]                         mark [63:16] [163:22] [164:        mechanisms [53:11]                million [36:12]
m211 [87:9,14,15] [107:2,6]        10,11]                            medal [108:8] [129:14]            mind [8:6] [143:7] [151:3]
 [109:17] [110:1] [167:14]        markedly [52:24]                   medals [103:5,23] [109:9]         mindful [42:8]
 [174:12]                         market [:] [130:8]                  [192:12] [201:17,19]             mine [25:12] [112:2]
m21-1 [87:9,14,15] [107:2,6]      markup [164:11]                    media [57:2,5] [84:14]            minimum [11:7] [69:19]
 [109:17] [110:1] [167:14]        mark-up [164:11]                   medic [201:18]                    minute [7:20] [9:1] [10:24]




                                                                                                                                  A.17
                                                 4/21/2008 Trial Transcript

[13:11] [22:13] [34:3,18]        [7:22,25] [8:8,11] [9:13,22,24]    [193:7] [197:7,10,19] [200:      [78:2] [91:12] [98:8] [116:22
  [110:9] [127:7] [136:2]          [10:4,5,6,10,12,14,17,19,20]      23] [204:4] [205:12] [206:13]    ,25] [120:9] [155:1] [177:24]
  [163:18,23]                      [11:12] [12:16,19,20]              [214:17,19,20,22] [215:7,11]     [208:23] [211:25]
minutes [7:8] [51:5] [118:2]       [13:9,13,15,20] [14:4,19,21        [217:24] [218:4,12,14,15,24]   negative [112:20]
mischaracterizes [190:5]          ,23] [15:3,12,18,25] [16:12         [219:4,7,8,18,20,22] [222:     negotiate [83:8,11]
misleading [128:18] [175:21]      ,14,16,20,24] [17:1,8,11]          16,18,19] [223:12,17,20,21]     nehmer [90:6]
missed [171:7]                     [18:6,18] [19:8,14] [20:10,13      [225:6,8,9,14,18,19] [227:     neither [28:11] [63:23]
mistake [109:11] [156:17]         ,18] [21:1,4,15,21] [22:3,15]      21,23,24] [228:3,7] [230:1,3    nemuth [52:22] [53:1,5]
  [206:19]                         [23:3] [24:1,9,12,16,21,22]       ,4,9,13,24] [231:1,25]            [56:19]
mistakes [47:20] [72:5]            [25:5,10,20] [26:2,22]             [232:2,3,8,12,22,24] [233:     new [4:15] [30:21] [41:10]
mister [174:15]                    [27:1,7,9,11,15,16,22,23,24       19,21,22] [234:1,2,7,11]          [51:18] [60:1,2,7,16,24]
misunderstanding [132:15]         ,25] [28:1,5,7,8,16,20,23]          [236:8,9,14,18,19,22,24]         [70:6,11,15,17] [72:9,17]
model [57:20]                      [29:7,15,17] [30:1,7,9,10,11       [237:5] [238:14] [239:1,8,11     [74:15] [77:3,17,24] [78:14
moment [32:8] [141:15]            ,15,19] [31:3,13,17,25]            ,17] [240:3,,7,,8,,9,12]         ,17,23] [90:12] [128:3]
  [162:15] [196:2]                 [32:3,7,20,25] [33:19,23,25]     ms [3:11,13] [4:2,8] [19:15]       [133:10,12] [135:3,9]
moments [100:11]                   [34:1,5,8,13,16,23] [35:19         [20:1,16] [23:4,25] [35:18]      [145:21] [147:9] [175:25]
monday [:] [23:9] [242:19]        ,24] [36:1,9] [39:16] [40:7]      multiple [41:17] [76:16]           [176:12,15,17,23] [177:14]
money [42:4,5] [48:4] [58:12       [42:3] [43:1,18] [48:16]           [133:5] [134:3,11] [180:12]      [179:11,15] [181:15] [182:
 ,13] [72:14,15] [114:5]           [53:24] [55:11] [56:5,9,17,19]   murphy [52:2,3,17] [53:5]         14,19,22] [183:4,8,15]
  [123:25] [166:20]                [57:11] [58:15] [60:2]           murphys [53:13]                    [184:19] [187:9,19,20,24]
monitor [53:18] [213:3,23]         [63:11] [64:8,14,17] [69:5,6     muskogee [92:21,23]                [208:4] [237:15,16]
monitoring [54:23] [55:2]         ,7,9] [77:10] [78:5] [79:11]      mutual [21:13]                   newer [213:7]
month [36:22,23] [60:14]           [82:22,23] [84:15] [85:4,15      myself [135:7]                   newest [227:7]
  [138:14] [214:10] [225:25]      ,16] [87:9,14] [88:18,19,21]                                       news [57:5]
  [230:20] [233:10] [237:25]       [89:2,3,6,10,17] [90:1]          N                                newsletter [88:13]
monthly [195:22] [214:9]           [93:14,15,17,20,21] [95:2,3                                       next [6:23] [16:23] [17:2,6]
  [215:1]                         ,18,21,22] [96:1,4,15,17,18]      n.w [:]                            [18:19] [26:16,23] [45:13]
months [37:3] [38:3] [89:21]       [99:4,7] [100:14,17,19,20]       name [85:8] [111:6] [122:20]       [60:11] [89:12] [112:16]
  [92:20] [121:10] [190:14]        [101:2,6,7] [106:19,23]            [161:14] [177:4] [191:8,10]      [117:14] [118:5] [143:17]
  [196:19,20] [210:4]              [107:2,6,7,10,13,16] [108:         [202:24]                         [198:18] [199:3] [202:13]
moph [193:20,23]                  6,7] [109:10,16,17] [110:2,6]     named [12:18] [25:17]              [203:7] [209:11] [210:5]
morning [3:7,9,11,13,15,17         [112:2,3] [118:15,18]              [27:16,17]                       [217:3] [220:9,25] [221:11]
 ,19,21,23,25] [4:2,4,6,8]         [122:11,14,15,16] [123:8,12      names [51:8]                       [238:12,13]
  [6:7] [30:24] [31:6] [33:10]    ,15,16,21,22] [124:10,13,23]      national [39:18] [40:24]         nexus [172:6] [201:7]
  [42:2] [44:19] [57:24]           [125:4,12,14,24] [126:3,12]        [41:5,19,22] [54:21] [85:19]   night [4:21] [6:6] [8:13,25]
  [58:9] [59:11] [61:18]           [127:19,20,21,25] [128:4,7         [191:23,24] [192:15,21]          [9:24] [10:1,3,4,23] [12:25]
  [63:11] [67:16] [85:16,17]      ,9,10,15,17,24] [129:4,6]           [193:6,20] [210:22] [213:25]     [16:4] [29:22,25] [30:2]
  [105:8] [108:7] [109:11,17]      [130:2] [131:7,12,13,14]         nationwide [216:8,11]              [33:4,6,20,22,25] [34:7]
  [150:24] [152:15,22] [239:       [133:24] [134:7,10] [135:18        [219:16,18] [220:6,19]           [60:5] [72:23]
 19]                              ,23] [136:1,3,8,22,24]              [221:23] [222:13] [223:9,17    nine [11:18] [75:16] [180:4]
morrison [:] [3:8,12,14,16,18]     [137:17,23] [138:1,7,9,15,17]     ,19] [224:11] [225:23]          ninetenths [75:16]
mortar [109:3,8]                   [139:3,10,14,20,22,25]             [226:2,17] [230:22,24]         nine-tenths [75:16]
mortared [108:24]                  [140:6,9,10,13,14,22]              [232:22] [236:22] [238:1,23]   nineties [79:12] [213:13]
moser [:] [3:11] [19:15]           [141:1,2,7,14] [142:4,7,8]       native [66:5]                    ninth [81:20]
  [20:1,16] [23:4,25]              [143:4] [144:18,20,23]           nature [18:21] [61:6] [63:19]    no [:] [4:12] [5:12] [7:25]
mostly [16:1] [158:14]             [145:1,6,19,20] [148:8,11,13       [66:23] [69:23] [79:5]           [16:19] [18:10] [20:22]
  [190:3]                         ,25] [149:2,5,6,17,20,21,23         [108:19] [210:21] [229:12]       [22:6] [27:11,16] [28:13,23]
motion [9:10] [13:16] [14:24]     ,24] [150:2,4,6,7,21,23,24]       naval [48:11]                      [29:13,24] [30:4] [38:14]
  [16:19] [22:3,14,15] [24:2]      [151:10,13,15,16,20,25]          near [109:8] [136:20] [199:17]     [49:8] [50:7,8,12] [53:11,18]
  [34:24] [38:25] [39:8]           [152:3,4,7,10,11,17,19,21        nearsighted [136:20]               [54:25] [61:20] [64:3]
  [42:8] [66:19] [67:16]          ,24] [153:1,2,11,14] [154:5       near-sighted [136:20]              [65:20,21,22] [70:14]
  [144:2] [187:13]                ,7,10] [155:5,10,22,25]           necessary [97:24] [121:11,19]      [77:5,19] [79:21] [81:5,16]
motions [4:18] [5:4] [17:11]       [156:1,3,5,9,14,20,22]             [131:20] [161:1] [163:1]         [84:6,15] [95:10,25] [96:1]
move [18:18] [27:18] [70:12]       [159:7,9,12,15,20] [160:1,23]    need [14:21] [15:14,15]            [109:2] [110:1] [117:16,23]
  [101:2] [106:19] [109:12,13]     [162:11,14,18] [163:7,9,11         [16:1] [18:16] [23:10,12,18]     [122:11] [123:21] [124:24]
  [110:2] [118:15] [212:1]        ,20,25] [164:2,5,8,16,24,25]        [25:8] [28:7] [29:10,22]         [125:2] [127:24] [128:1,4,7]
  [215:7] [218:24] [223:13]        [165:2,6,10,12,15,16,19,21         [32:8,17,19] [72:13] [78:21]     [139:15,16] [140:1] [143:11]
  [225:14] [228:3] [230:9]        ,24] [166:3,7,8] [167:1,4,9,12      [80:23] [98:10] [99:22]          [144:10,23] [145:7,9]
  [232:8] [234:7] [236:14]        ,14,23] [168:1,2,8,11,17,20         [102:3] [116:20] [119:20]        [148:17,25] [151:25] [152:
moved [109:11] [110:19]           ,21,24] [169:1,11,13,16,19          [122:2] [131:2] [135:7]         17,23] [154:2,17] [155:2,23]
  [131:4]                         ,21] [170:6,24,25] [171:3,5         [141:9] [145:16] [161:6]         [156:2,4,16] [157:2] [159:7]
moving [21:4] [60:22] [61:23]     ,6,9,12,20,22,23] [172:23,24]       [184:24,25] [185:1] [198:6]      [162:12] [165:2] [169:19]
  [64:19,20] [72:10] [78:22]       [173:2,14,16] [174:12,13,20        [208:5] [211:25] [228:8]         [171:8] [173:10,24] [175:10]
  [213:7] [217:3]                 ,21,25] [175:3,15] [182:10,13       [233:24]                         [179:21] [184:1] [189:14,20
mr [3:7,9,15,17,19,21,23,25]      ,23] [186:20] [190:5,9,24]        needed [201:15] [212:21]          ,21] [190:20,24] [202:22]
  [4:4,6,19,24] [6:5,6,24]         [191:1,5,7,15,16] [192:6]        needs [15:9] [30:18] [72:13]       [208:14,17] [209:13] [216:




                                                                                                                                  A.18
                                                  4/21/2008 Trial Transcript

8] [218:23] [223:9] [224:24]      novo [38:3] [46:2] [47:9]          [214:1]                           [48:17] [50:6] [86:18] [87:1
  [225:20] [230:15] [232:14]        [157:17] [179:9] [181:14,17]     occasionally [94:15] [103:11]      ,3] [88:3] [92:14,20] [94:20]
  [235:19] [237:18] [238:23]        [232:19] [233:4,13]                [156:15] [190:19]                 [98:4] [107:3] [108:15]
nod [37:13,21] [133:17]           number [5:6] [8:1,18] [9:1,15]     occasions [93:10]                   [124:4] [127:16] [131:5,18]
  [141:20] [154:16] [157:6,15]      [11:22] [12:1,10] [29:9,10]      occur [112:20]                      [133:9] [138:11] [141:3]
  [177:7,13] [215:22]               [39:3,14,16] [43:4,23]           occurred [36:21] [112:15,18]        [147:10,12,17] [155:23]
nodding [183:6]                     [44:9,13,20,23] [46:2]             [150:25] [201:19]                 [156:10,11] [162:24] [169:
nods [47:7] [157:16] [175:17]       [55:6,8,18] [61:4] [62:15]       occurs [147:18]                    4,25] [174:10] [185:5]
  [176:9]                           [64:21] [71:9] [75:5,11,25]      oclock [15:22] [30:2]               [193:15,18] [205:17,18]
noise [132:21]                      [97:12] [125:5,6] [128:21]       october [21:12,21] [22:21]          [224:14,23] [226:7,14,17,23]
nomic [113:6]                       [138:23] [151:18] [152:12]         [193:8] [215:17] [233:10,12]      [229:8]
non [62:14] [63:9,24,25]            [160:21] [164:4] [173:5,7,9      oef [73:22]                       official [:] [56:23] [65:19]
  [72:25] [73:2] [84:7] [97:20]    ,11] [175:17,21] [176:7]          oef/oif [197:16]                    [242:4]
  [98:4] [126:10] [217:14]          [180:5] [185:20] [187:8]         off [51:10] [56:7] [92:22]        officials [24:17] [38:14]
  [218:10]                          [189:18,20] [193:15] [215:         [147:24] [158:10] [165:7]         [39:4,5] [51:21] [79:15]
nonadversarial [97:20]             22] [217:6] [218:7] [219:3]         [209:5] [223:16]                offtherecord [223:16]
  [98:4]                            [221:13] [224:17] [225:22]       offer [86:23] [144:21]            off-the-record [223:16]
non-adversarial [97:20]             [226:13] [227:11] [230:17]       offers [202:7] [231:5]            often [46:22] [47:22] [94:14]
  [98:4]                            [234:25] [235:12,22]             office [:7] [8:2] [37:17,22]        [113:18] [121:16] [153:5]
nondiscretionary [63:24,25]       numbered [110:8]                     [39:21] [40:11] [41:3,4,7,8       [229:8]
non-discretionary [63:24,25]      numbers [17:19,20] [36:2,3          ,10,20] [42:25] [43:8,16,18]     oh [50:15] [103:3] [118:11]
nonfinal [62:14] [63:9]            ,4,6,14] [38:13] [42:24]            [46:18] [47:9,20] [49:8]          [145:14] [148:5] [164:6]
non-final [62:14] [63:9]            [43:18,20] [45:7,8,10]             [50:1,7,9,16,17,24] [52:9]        [177:21]
nonorg [217:14]                     [55:17] [60:15] [138:21]           [54:17] [70:17] [73:10]         oif [73:22]
non-org [217:14]                    [139:4,8,9] [140:11,17]            [74:13,15,22] [79:8] [86:4,9    oif/oef [38:10]
nonoriginal [218:10]                [144:6] [158:3] [174:11]          ,10,20] [87:1,8,13,22,23]        okay [4:16] [6:23] [14:4,20]
non-original [218:10]               [189:12] [207:19]                  [89:21] [91:23] [93:5,22]         [16:22] [18:18] [20:16]
nonprofit [85:25]                 nvlsp [40:1] [85:20,22]              [94:6,12] [95:8] [97:2]           [22:11] [29:18] [31:25]
nonrating [72:25] [73:2]            [86:24] [88:8,10,16] [89:9,12]     [115:1,14] [118:24] [120:25]      [34:15] [61:24] [85:22]
  [126:10]                          [90:20,22] [91:3] [190:16]         [127:13,14] [128:22] [129:        [86:21] [87:23] [88:7]
non-rating [72:25] [73:2]         nw [:19]                            24] [132:25] [133:6,20]            [89:17] [92:9,19] [93:1,9,13]
  [126:10]                                                             [134:4,12] [135:15] [137:1        [96:15] [97:12] [100:9]
nonregulatory [84:7]              O                                   ,13] [138:3] [140:21] [141:9       [101:10,14] [103:1] [104:2]
non-regulatory [84:7]                                                 ,15,16] [144:13] [145:3]           [105:2,22] [106:18] [107:16]
noon [6:8,13] [107:15]            oath [85:6] [191:6]                  [147:13] [148:15] [149:13,25]     [112:1] [116:9] [118:8]
nor [63:24]                       obdurate [98:21]                     [154:3] [155:14,15,17]            [119:8] [122:5] [123:22]
normally [30:13] [32:13]          object [123:22] [128:17]             [156:18] [157:19] [160:21]        [124:12] [125:19] [126:10,13]
  [160:18] [194:8]                  [139:14] [149:17] [155:22]         [163:6] [166:21] [169:3,9,10      [127:19] [132:23] [133:25]
northern [:] [242:5]                [163:20] [187:1]                  ,17,24] [170:1,7,10,19,20,21]      [137:10] [149:24] [151:15]
note [39:4] [41:23]               objected [186:24]                    [173:23] [174:6,9] [175:23        [152:16] [153:8] [154:15,19]
noted [38:17]                     objecting [141:9]                   ,24,25] [182:12] [183:4,5,7        [155:10] [157:8] [158:25]
notes [30:18] [110:10]            objection [24:13] [95:2]            ,14,16] [186:4] [187:19]           [162:1,5,17,19] [164:7]
  [149:14] [151:4]                  [99:4] [122:11] [123:8,20]         [188:2,11,14] [192:18]            [165:21] [166:23] [167:21]
nothing [15:1] [20:14]              [124:10,23] [127:25] [134:         [193:9,10,11,12,13,18]            [170:5] [171:9,13] [175:1]
  [54:16] [55:4] [69:22]           7] [137:17,23] [138:7,15]           [195:7,24] [196:1] [197:20]       [179:7,22] [180:10] [183:10
  [73:4] [123:10] [128:22]          [139:10,25] [140:22] [142:         [199:18,20] [202:17] [204:       ,12] [185:8] [186:25] [188:21]
  [145:21] [165:23] [176:2]        4] [144:18,23] [145:6]             15,20] [205:14,16,20]              [190:18] [194:6] [200:9,22]
  [184:11] [185:5] [191:1]          [148:25] [150:2,21] [151:9         [207:2,3,10] [210:14,15,24]       [202:11] [204:20] [206:11]
  [199:6]                          ,13,14,20] [152:7,17] [153:         [211:5,11,16,18] [212:3]          [216:3] [220:9] [221:11]
nothings [73:15]                   11] [154:5] [162:11] [163:7]        [213:21] [214:6] [216:4,5,24]     [233:12,16] [234:23] [237:
notice [13:6] [37:13] [45:8,11]     [164:7,8] [165:19] [166:6]         [217:17] [219:15] [222:12]       18,22] [238:19] [239:12]
  [47:2,18] [61:14] [62:21]         [167:1,9,23] [168:8,17,24]         [223:4,23] [224:2] [225:23]     old [55:3] [212:24]
  [75:18] [76:25] [77:23]           [169:11] [170:6] [171:3]           [226:1] [228:24] [230:21]       older [76:17] [218:2]
  [78:15] [80:17] [141:22]          [172:23] [190:5] [197:7]           [231:8,23] [232:18] [234:17]    oldest [209:23] [227:7]
  [164:11] [175:19] [176:2]         [217:24]                         officer [38:4] [40:24] [41:5,16   once [30:15] [81:18] [141:16]
  [177:19,23] [179:23] [180:      objective [108:11] [138:23]         ,19] [157:16] [181:19]             [143:11] [146:11,23] [154:
 10] [182:15,17] [204:8,15]       obligated [59:2] [81:8]              [182:11] [191:23,25] [192:       16,20,25] [155:3] [184:6]
  [206:14] [213:18] [215:25]        [110:25] [145:11] [180:13]        16,21] [193:6,20] [195:18]         [203:6] [208:20] [209:11,17]
  [216:12,14] [220:22] [221:        [199:9]                            [210:23] [211:1,12,17]            [217:6,15,21] [224:15]
 19,24] [222:4] [235:2]           obtain [88:17] [103:20]              [213:25] [220:1] [228:12]       one [5:16,18] [6:25] [7:5]
noticed [67:9] [93:21] [190:        [194:21] [198:21]                officers [40:2] [91:4] [94:9]       [8:18] [9:11] [11:23,25]
 20]                              obtained [86:4] [147:8]              [120:2] [124:8] [196:5]           [13:21] [17:12,23] [18:19]
notices [47:7]                    obvious [163:2] [214:1]              [200:11] [232:17]                 [19:11] [20:8,19] [21:4]
notified [203:13]                 obviously [26:9] [56:21]           offices [39:21,25] [40:10,23        [23:9] [24:25] [25:25]
notify [194:20] [234:24]            [69:15] [75:20] [77:4]            ,25] [41:12,23,24] [44:13]         [27:7] [28:9] [30:20] [38:2,15]
  [235:1,7,9]                       [140:23] [204:17] [213:22]         [45:19] [46:11] [47:1]            [39:7] [42:20] [44:3,16]




                                                                                                                                    A.19
                                                   4/21/2008 Trial Transcript

[47:4,8] [48:23] [49:24]          orange [90:5,6,9]                   page [:] [57:12] [65:9] [101:     paying [65:1]
  [59:15,20] [60:3] [61:13]       oranges [72:24]                      18] [110:7,12,22] [111:10,11     payment [99:15]
  [62:21] [63:13] [64:22]         order [16:3] [17:7] [22:4]           ,21,24,25] [116:8,10] [119:      pcans [123:6]
  [65:16,17] [66:8] [72:1,2,20]     [23:7] [29:21,25] [30:5,13]        6,22] [165:17] [174:13,20]       p-cans [123:6]
  [73:7] [74:21] [75:2,6,12,22      [31:16] [33:5] [39:1] [40:3,24]     [179:21] [199:5,8] [207:12]     pclear [123:5]
 ,25] [76:1] [79:16] [83:22]        [41:2,6] [42:9] [66:18]             [216:7] [218:23] [223:8]        p-clear [123:5]
  [87:25] [90:23] [92:23]           [67:16] [76:22] [83:8]              [225:20] [230:15] [232:14]      peake [:] [3:5]
  [99:22,23] [100:5,6,10]           [109:5] [116:5] [123:3]             [235:19] [236:25] [238:13,22]   peer [57:4]
  [101:12] [103:4] [105:10]         [159:4] [170:22] [191:21]           [239:8] [240:2,5]               penacoss [108:20]
  [121:19] [122:16,23] [125:        [197:5,12] [201:14] [209:23]      pages [:] [25:15] [32:9]          penalty [155:7] [156:16]
 5,18] [136:3] [139:1] [141:17      [218:1] [227:18,19]                 [69:2,12] [111:25] [142:22]     pending [37:25] [44:11,12,14]
 ,20] [143:8,19] [146:1]          orders [82:11]                        [238:16]                          [80:17] [173:4,11] [195:25]
  [148:21] [151:17] [153:3]       organization [85:24] [89:20]        paid [74:12] [181:5]                [196:2,12] [197:3,25]
  [154:20] [156:7] [163:10]         [104:18] [146:1] [147:5]          painted [52:24]                     [212:13,24] [225:22] [226:
  [164:2,19] [179:24] [180:20]      [173:18] [192:17] [197:25]        pamprim [97:9]                     5,10,13,16,17,20,23] [227:
  [185:19] [189:14] [193:17]        [199:13,15] [203:8,25]            pamprims [168:2]                   1,3,5,10,16] [230:17] [231:
  [194:6,18] [199:5] [201:16]     organizational [88:20]              panoply [81:22]                    14,17] [237:2,4,10,18]
  [203:22] [204:14] [205:9]       organizations [40:3,4]              paper [89:1] [105:17]               [238:1,4,6,17,20,25] [239:
  [206:3] [209:7,8,18,19]           [83:12] [90:11] [173:22]          papers [15:2] [20:18] [62:1]       4,13,15]
  [212:7,11] [213:6,8] [215:1       [174:3] [200:8] [209:18]          paragraph [142:23] [164:17]       pension [41:18,21] [51:3]
 ,22] [216:3] [227:10] [231:20]   original [87:7,8,10] [154:21]         [174:16]                          [73:3] [86:11,14,16] [87:2,11
oneday [63:13]                      [157:21] [158:21] [159:15]        parallel [39:9] [181:25]           ,12] [106:13] [107:4] [166:22
one-day [63:13]                     [164:22] [170:18] [198:14,16]     paralyzed [90:20]                  ,23] [211:6,21]
oneissue [72:1]                     [207:14,18] [217:4,8,9]           parameters [68:10]                people [11:2] [13:3] [16:6,22]
one-issue [72:1]                    [218:9] [224:20,22]               pardon [167:17]                     [29:6] [38:12] [49:15]
ones [31:15] [32:5] [34:8,9,10    originally [88:12] [115:2]          parse [11:25]                       [50:18] [51:8,11] [55:13]
 ,13] [45:7] [71:20] [141:4,6]      [218:2]                           part [11:10] [12:17] [35:8]         [56:1] [60:20] [75:3,17]
  [143:1] [180:17] [195:23]       otherwise [32:4] [63:21]              [42:21] [49:1] [87:23]            [84:14] [98:10,17] [100:3]
  [214:3]                           [147:14]                            [108:13] [117:6] [132:3]          [101:24] [103:17] [104:9]
onetoone [153:3]                  ought [6:22] [33:11]                  [136:25] [140:8] [145:12,15       [111:4,5] [114:24] [115:1]
one-to-one [153:3]                outlets [57:6]                       ,18] [157:5] [159:25] [161:10      [118:1] [121:6,9] [127:15,17
oneyear [185:19] [204:14]         outline [72:21]                      ,18] [164:13] [167:18]            ,22] [128:14,21] [129:22,25]
one-year [185:19] [204:14]        outoftown [30:12]                     [180:11] [198:20] [199:23]        [130:6] [133:13,15] [145:14]
online [173:6] [203:9]            out-of-town [30:12]                   [201:23] [203:25] [206:4]         [157:19] [160:4,12,13,15]
oops [206:18]                     outpatient [54:3]                     [213:23] [214:11] [232:19]        [162:23] [183:11] [205:23]
open [26:14] [39:15] [62:17]      outreach [196:7]                    partial [21:22]                     [206:3] [211:24,25] [212:8]
  [70:3] [76:15] [143:23]         outright [159:21]                   participate [162:13]              per [36:11] [72:5] [87:9]
  [176:9,20] [187:11,12,18]       outside [43:13] [56:23]             participated [144:9]                [126:20] [193:24]
opening [7:8] [34:17,22]          overflow [147:6]                    particular [23:24] [62:3]         percent [36:13] [37:16,18]
  [56:8] [61:19] [78:5] [136:4]   overnight [60:23]                     [78:21,22] [82:15] [87:6]         [38:10] [46:16] [47:8,10,13
  [150:24] [151:8] [152:22]       overruled [173:15] [197:13]           [91:5] [104:15] [108:8]          ,16,17] [48:12,14] [59:22,23]
  [240:3]                         overturned [224:19]                   [115:19] [125:21] [129:10]        [60:17,19,20,24] [71:8,14,24]
operates [195:3]                  overturning [224:22]                  [135:12] [145:15] [151:11]        [72:11] [74:6,8,11,12,13,14
operation [97:16]                 overview [109:4]                      [166:13] [169:4,8] [174:10]      ,20,23,24] [76:13] [99:23]
operations [213:4,23]             overwhelmingly [99:3]                 [196:4] [215:13]                  [115:3,4,15,16] [147:1,2,3
opinion [114:4,18] [116:23]       own [18:13] [20:13] [30:18]         particularly [40:20] [58:1]        ,11] [148:22] [152:13,14]
  [124:14,18] [137:4] [138:22]      [36:23] [43:2] [52:20]              [62:7] [63:10] [80:22]            [157:19] [158:4,8,9,14,17,19
  [139:9] [140:20] [142:2]          [53:1] [54:10,13,16] [55:11         [229:8]                          ,20] [159:5,9,16,22] [162:9]
  [143:7] [144:16] [146:22]        ,16,19] [62:6] [69:15] [81:12]     partner [89:16] [90:21]             [163:3] [175:18] [179:9]
  [162:14,15] [168:5] [170:8        [91:1] [121:13] [143:7]             [96:12]                           [184:14] [185:11,15,17,18
 ,14] [177:14] [185:1] [186:7       [155:18] [182:25]                 parts [53:19] [131:4]              ,23,25] [186:2,9] [187:2,3,4]
 ,8] [188:15,20] [201:7]                                              party [24:20] [28:17] [97:21]       [188:21,22,24] [189:3,9,10
  [202:12]                        P                                   pas [:] [242:17]                   ,22,23] [195:14] [196:11,14]
opinions [64:24] [111:18]                                             passage [42:12]                     [205:4] [224:3,6,15,24,25]
  [168:21] [177:11]               p.m [107:18] [108:2] [171:19]       passed [233:2]                      [225:1,2]
opponent [188:17]                  [239:21]                           past [63:20] [79:1] [104:10]      percentage [99:20] [152:12]
opportunities [77:24]             p.o [:]                               [113:15] [158:2] [192:22]         [158:1] [159:4] [160:22]
opportunity [69:20] [81:3]        p1275 [100:6,18] [101:2]            path [90:7] [108:9]                 [180:21] [188:19] [205:3]
  [146:20] [160:12] [170:25]      p1276 [136:2]                       patient [62:6] [63:2]               [224:17]
  [195:5] [196:20] [198:19]       p1277 [157:8]                       patients [55:21] [62:4,8]         perfect [151:18] [152:5]
  [228:10] [231:6]                p1278 [225:3]                       patrick [79:8]                    perform [99:17]
opposed [217:9] [229:16]          p1282 [125:25]                      pattern [114:16,22]               performance [54:21,23]
opposing [4:21] [97:21]           p375 [163:16]                       pause [35:22] [78:12] [119:         [57:19] [102:23]
opposite [74:4]                   p414 [161:23,24]                     5] [162:2]                       performed [91:23] [190:22]
option [228:19] [229:1]           p425 [107:9] [109:18,19]            pay [50:25] [56:16] [83:15]       perhaps [208:21] [237:2]
orally [9:8] [229:12]             package [52:13] [197:1]               [114:14] [115:20] [127:11]      period [37:15] [43:16]




                                                                                                                                   A.20
                                                   4/21/2008 Trial Transcript

[60:9] [64:5] [68:13] [86:8]       [53:8,10,12,14,16,17,23]         precedential [18:21] [76:21]      [195:6] [198:1] [211:15,19,20]
  [143:19] [176:15,16] [185:        [54:2,25] [59:19] [63:12,14]    precise [204:25] [215:3]            [212:20] [219:21,23] [228:
 19] [200:24] [204:14] [220:        [64:9,11]                       precisely [12:6] [15:25]           12] [233:6]
 18] [235:4,15,25]                 planning [16:2]                  preconditions [115:22]            prisoners [175:5]
periods [82:25]                    plans [54:25] [73:3]             predischarge [194:1] [195:        private [57:16] [70:24]
permission [89:3]                  play [207:21]                     1,2,3,14] [203:10]                 [113:8] [114:5] [177:5,7]
person [29:7] [52:15] [60:4]       played [39:15]                   prejudice [31:12]                   [198:22]
  [65:22] [71:1] [83:22]           playing [188:16]                 prejudiced [13:3] [20:3]          privilege [5:6,8,9,10,18,20]
  [102:12] [129:19] [155:15,17]    pleadings [66:13]                  [23:15]                           [121:8]
personal [27:12] [130:1]           please [3:6] [22:7] [31:23]      preliminary [15:3] [35:3]         privileged [5:13,25] [6:1,3,17
  [138:10] [152:23] [153:2]         [56:9] [85:7] [97:17] [139:1]     [36:2]                           ,21]
  [160:17] [189:13]                 [142:20] [191:7] [192:4]        premature [48:23] [67:15,22       pro [90:16,18,22] [91:11]
personally [92:17] [141:2]          [199:6] [232:23] [236:23]        ,23] [132:12,13,23,24]             [161:11] [190:14]
  [190:2]                          plot [73:3]                        [157:1] [186:14]                probably [17:2] [24:1]
personnel [48:11] [205:18]         plus [11:4] [127:2] [205:23]     prematurely [43:24] [108:16]        [58:19] [102:4] [172:18]
pertinent [25:17,19]               point [8:25] [14:5] [18:7]         [155:5,13]                        [196:14] [205:22,24]
perverse [79:25]                    [19:15] [24:2,24] [26:22]       premises [11:13]                  probative [8:7,9]
phase [197:25]                      [32:21] [33:1] [58:24]          preparation [96:18] [214:14]      problem [23:8] [29:24]
phenomenon [37:19] [148:            [62:14] [64:15] [67:21]         prepare [17:25] [30:17]             [30:21] [37:7] [38:1] [42:20]
 23] [149:7]                        [68:4] [72:19] [79:20]            [33:15] [45:25] [87:14]           [49:13] [51:24] [52:2,3]
philadelphia [86:4] [93:22]         [82:17] [88:7] [98:11]            [142:1] [144:17] [146:15]         [55:20] [68:9] [79:22]
  [163:6]                           [104:5] [110:20] [139:17]         [194:10] [209:9]                  [99:3,9] [102:19,20] [113:1]
phone [6:6] [10:22]                 [143:24] [176:12] [181:14]      prepared [33:8,9,12,14]             [119:2] [124:3] [132:21]
phonetic [108:20]                   [184:8] [185:22] [190:20]         [34:14] [44:19] [142:10]          [148:12] [166:3,5] [178:25]
physical [229:13]                   [208:2] [213:16] [222:3]        prepares [45:13]                    [204:1]
physically [193:11]                pointed [69:18] [125:10]         preparing [126:19] [154:1]        problems [38:24] [40:7,21,23]
physician [51:1]                    [180:19]                          [157:4]                           [41:23] [42:11,14,18]
pick [26:16]                       pointing [22:18]                 presence [92:14]                    [49:3] [51:23] [53:4] [76:6,8]
picky [233:18]                     points [84:5] [141:7]            present [:22] [6:10] [11:10]        [119:1] [132:7]
picture [8:21] [9:3] [119:17]      poker [188:16]                     [23:18] [32:17,19] [38:23]      procedural [40:19] [61:23,25]
pie [58:14]                        policies [54:14,22] [59:10]        [47:23] [52:14] [58:15]           [67:2] [70:21] [77:13]
piece [36:15] [89:1]                [63:10] [73:13] [82:13]           [65:21] [73:16] [121:14]          [81:23] [84:23] [158:15]
pieces [47:4] [115:13]              [84:7]                            [196:23]                          [179:17] [186:11]
pilot [78:17,23]                   policy [60:7,24,25] [62:13]      presentation [194:11]             procedure [24:7] [50:11]
ping [171:17]                       [63:14,18] [64:10] [77:17]        [209:20]                          [78:1] [106:7] [135:9]
pingpong [171:17]                   [82:15,18] [86:12] [87:12,18]   presented [36:5] [100:15]           [166:10] [168:3,15,23]
ping-pong [171:17]                 political [78:13]                presenting [19:20]                  [169:3] [189:16]
pipeline [77:3]                    pool [181:8]                     preservation [66:15]              procedures [66:10] [67:8,12]
pits [48:2]                        population [40:21] [57:14]       presidents [83:25]                  [79:2] [80:24] [93:16]
pizza [92:25]                       [76:17]                         pressed [150:11]                    [96:5] [168:13]
place [28:1] [53:18] [120:15]      portion [197:10] [206:17]        pressing [42:20]                  proceed [4:17] [96:14]
  [143:15] [176:1]                  [211:4] [233:3,4]               pressure [48:7,9] [163:1,4]         [109:14] [110:4] [153:13]
placed [85:6] [91:4,18]            portrayal [35:6]                 presumption [120:13]                [197:13]
  [130:24] [190:16] [191:6]        position [19:8] [27:5] [39:14]   presumptions [204:2]              proceeding [68:18]
  [206:16]                          [59:1,4] [61:5] [65:7] [75:8]   presumptive [108:9]               proceedings [:] [70:3]
places [121:24] [196:8]             [76:9] [77:16] [86:7] [89:12]   pretrial [31:14,17,20] [62:15       [239:21] [242:6,9]
  [202:8]                           [182:11] [191:22] [210:25]       ,20] [68:24] [69:13,18]          process [5:9,10,20] [7:15,21]
plaintiff [15:8] [69:12]            [211:10,15,19]                    [73:21]                           [8:2,12,20] [9:2,6,15,19]
  [85:12] [191:12]                 positions [48:21] [59:22,23]     pretty [49:19] [52:13] [56:10]      [11:10] [19:21,22,23]
plaintiffs [:] [3:8,10,12,14]      positive [112:19]                  [61:8] [75:22] [91:25]            [41:11] [42:22] [43:7]
  [15:6] [16:2,7] [17:3,9,13]      possess [65:10]                    [105:12,16] [107:6] [138:23]      [46:23] [47:2,9] [61:23,24,25]
  [22:23] [38:23] [56:24]          possibility [116:2] [157:4]        [139:2] [144:4] [152:9]           [62:6] [65:10,13] [66:1]
  [59:8] [60:20] [61:4,8]          possible [88:17] [133:16]          [160:7] [177:22] [203:21]         [70:5,20,22] [76:14] [77:12]
  [63:16] [64:23] [65:6]           possibly [23:20] [57:16]         prevent [53:25]                     [78:21] [81:2] [84:20]
  [66:13] [68:13] [69:21]           [147:2] [173:7]                 prevention [59:24]                  [91:9] [93:2] [98:3,13]
  [72:20] [73:14,21] [74:4]        post [:7] [56:21]                prevents [61:3]                     [108:13,14] [115:7] [131:6
  [76:9,12] [79:2,24] [80:10,18]   potential [117:8] [207:5]        previous [218:6]                   ,15] [139:5] [144:9] [148:16]
  [81:5] [82:7,11] [83:6,9,13]     power [193:4]                    previously [106:22] [223:23]        [154:13] [160:14] [176:13]
  [84:8,14,23] [85:4] [88:20]      practical [40:21]                  [224:9]                           [187:16] [192:19] [196:18]
  [191:5] [214:17] [215:7]         practice [39:24] [73:11]         primarily [48:19] [61:4]            [198:1,5,6,8,12,18] [199:6
  [218:12] [219:4] [222:16]         [90:15] [207:17]                  [193:9] [212:16]                 ,7] [200:17,18] [208:1]
  [225:6,14] [227:21] [228:3]      practices [66:22] [79:2]         primary [16:9] [48:19]              [209:1,4,15] [212:1,13,18]
  [230:1,9] [231:25] [232:8,19]     [84:7]                            [201:3] [212:8] [213:6,8]         [213:10,16] [215:14] [232:
  [233:19] [234:7] [236:4,14]      praised [53:5]                     [231:24]                         17] [233:3,5,14] [235:20,23]
  [240:5]                          precedent [68:20] [69:17]        print [165:7] [239:7]               [236:2]
plan [38:14] [52:16,18]             [77:3] [78:24]                  prior [41:1,5] [162:7] [177:12]   processed [7:10] [176:5]




                                                                                                                                  A.21
                                                   4/21/2008 Trial Transcript

[193:25] [229:23]                  [201:9] [235:2]                                                      [225:3]
processes [41:13] [55:14]          provides [167:22] [203:1]         Q                                 rater [107:5] [150:11] [155:
processing [37:10] [42:13,15       providing [77:25] [197:16]                                            5,6,13] [156:17,25] [162:25]
 ,16] [43:19] [56:12] [68:12,15]   proving [103:2] [113:2]           qtc [201:11]                         [163:4] [175:24]
  [72:9] [73:19] [211:5]           provision [167:7,22]              quality [39:22] [40:10]           raters [48:12] [128:19]
  [212:1] [215:13]                 provisions [87:19] [102:15]         [57:15,18,20,21] [76:10]           [161:19] [162:9,23] [163:3]
processors [211:24]                  [107:9] [167:5]                   [80:3,6,7] [86:16,19] [87:17]   rates [46:25] [47:17]
produce [17:24] [33:5]             psychiatric [37:1] [52:22]          [91:19,21,22] [92:10]           rathbun [36:6]
  [48:7,19] [164:10,20]              [175:6,8]                         [94:16,18] [121:21] [124:3]     rathbuns [36:1]
produced [25:16] [31:15]           psychiatrically [57:13]             [125:6,15] [126:17] [128:13]    rather [35:5] [55:2] [135:10]
  [32:9] [33:2] [90:4,13]          psychiatrist [115:10]               [129:9,16] [130:6,7] [132:5        [226:7] [231:6]
  [166:4]                          psychological [102:7]              ,6] [138:13] [155:18] [156:12]   rating [48:11] [65:19] [66:24]
produces [138:21]                  ptsd [8:17,18,22] [9:2]             [178:19]                           [72:25] [79:15] [86:8]
product [92:1,2] [123:6]             [11:3,4,9,15,19,25] [37:10]     quantity [80:3]                      [92:3] [99:20,24] [114:16]
  [130:7] [135:21] [213:15]          [38:10,12] [41:24] [42:25]      quarter [46:19] [129:10]             [115:15] [126:11,19] [135:
production [49:18] [127:10]          [43:6,10,12,25] [45:4,17]         [188:14] [189:23] [234:14]        14] [143:3] [175:23] [180:22]
  [129:20] [155:20]                  [46:21] [48:6] [50:15,18]       quarterly [88:14]                    [183:10] [194:2,25] [195:9
productions [35:16]                  [54:21] [55:7,8] [61:11,12]     quashed [19:17]                     ,13,21,24] [202:7,15,16]
productivity [129:16]                [62:22] [96:20] [97:4,5]        question [4:10] [7:20,21,22          [203:3,6,16] [205:1,3,8,13
professional [28:1,11,12]            [99:9,10] [101:22] [102:2]       ,25] [8:19] [9:11] [10:23]         ,17,18,19,23,25] [206:4,5,7
  [62:8]                             [103:2,3,21] [105:3,23]           [78:2] [80:7,20] [84:16]          ,18] [207:8]
professionals [54:5] [62:16]         [106:8] [107:1] [108:25]          [95:4] [124:17] [133:25]        ratings [196:25] [205:22]
  [64:7] [83:12,25]                  [110:14] [112:13,25] [113:        [142:20] [151:7,23] [154:12]    rationale [207:6] [208:11]
professors [64:23]                  11,12,21] [114:3,6,15,20]          [156:19,20] [165:13] [168:      reach [6:9] [7:1]
program [41:18,21] [53:23]           [117:20] [118:19] [119:10,17]    9] [169:15,22] [170:15]          reaches [217:6]
  [60:18] [66:2,4] [67:13]           [120:20,24] [121:7,16,20]         [184:18,20] [186:24] [187:      reaction [37:5]
  [68:6] [79:23] [80:5] [83:13       [122:5] [131:15,17] [132:11      1] [190:7] [197:9] [198:9]       read [7:19] [15:2] [18:23]
 ,18] [85:20] [86:14] [90:19]       ,13,23] [140:20] [141:3]         questioning [36:1]                   [32:17] [36:10] [65:9]
  [91:6,11] [161:11] [194:1]         [161:4] [169:6] [171:24,25]     questions [26:5] [89:11]             [69:2] [94:18] [97:11]
  [214:7]                            [172:5,13] [175:8,11]             [96:1] [119:12] [125:12]           [110:20] [124:25] [162:20]
programs [:] [53:25] [59:9]          [190:2,13,17] [196:13]            [190:24]                           [175:3,4] [184:22] [238:15]
  [62:17] [66:5,6,8] [71:11]         [201:2,4]                       quick [48:24]                     reading [168:5] [195:21]
  [73:9,11] [81:4] [83:24]         public [37:11] [55:25] [56:1]     quicker [217:20]                  readjudicate [179:12]
  [84:22] [90:22]                    [57:2] [67:9]                   quickly [7:18] [78:18,20]         reads [238:12]
project [39:19] [78:17,23]         publications [90:3]                 [98:10] [146:24]                ready [34:16,19] [60:4]
projects [212:7]                   published [89:22]                 quit [130:18]                        [146:7] [155:1,10]
promise [59:9] [78:19]             puget [52:23]                     quite [8:24] [11:14] [36:16]      real [43:20] [44:8] [45:7]
promises [78:20]                   pull [192:3] [222:16] [227:21]      [42:8] [49:10] [51:14]             [59:11] [89:19] [115:8]
promoted [86:7,9] [89:13,15]         [230:1] [233:19] [236:22]         [89:20] [108:14] [186:20]          [204:1]
promotion [129:23]                 pulling [100:15]                  quitting [130:12]                 reality [34:25] [35:2,7,8,15,17]
promulgate [68:5]                  purchase [90:12]                  quotas [49:17]                       [53:10] [121:4]
promulgated [67:6] [70:9]          pure [122:3]                      quote [53:2] [57:12] [65:5]       realized [72:12]
  [195:24] [203:11] [204:6]        purple [40:4,25] [41:3,6]           [170:12]                        realizes [188:10]
proof [21:3] [105:15] [109:2]        [90:12,24] [91:3] [94:9]        quoted [52:4]                     really [22:24] [23:8,10,11]
  [112:21] [120:5,6]                 [99:1] [104:4,14,15] [113:20]                                        [24:16] [31:11] [33:11]
proper [135:8] [151:8]               [121:23] [191:21] [192:8,9      R                                    [43:6] [45:9] [51:21] [55:5]
properly [91:16] [92:16]            ,12] [193:25] [196:5] [201:18]                                        [58:14,20] [59:10] [64:24]
  [132:19]                           [203:20,23] [214:2]             radiation [66:3]                     [68:14] [73:14] [74:21]
proposal [83:21]                   purpose [10:22] [22:13]           railroad [15:10]                     [76:18] [78:2] [79:22]
proposals [83:7]                     [43:5] [160:2,3,4] [203:20]     raise [21:5] [24:4] [32:21]          [80:10] [82:9] [84:17]
propose [58:16]                    purposes [118:21]                   [63:9]                             [127:3] [137:13] [160:13]
proposed [78:16] [82:11]           pursuant [97:7]                   raised [6:6] [80:21]                 [184:21] [185:3,20] [186:17]
  [83:1] [86:13]                   push [79:25] [133:13] [185:       raises [80:19]                       [194:24] [231:4]
protect [158:16]                    21]                              rand [38:8,17] [57:10,22]         reason [8:21] [11:3,20]
protected [5:19]                   pushed [162:24]                   randolph [196:6]                     [15:12,18] [17:18] [18:10]
protecting [98:1]                  pushes [176:17]                   random [45:3]                        [22:21] [28:14] [30:4]
protections [40:19] [77:13]        pushing [62:23]                   range [125:9] [227:6]                [47:21] [61:6] [78:11]
  [84:23]                          put [15:6] [31:4,6] [43:1]        rank [193:14]                        [79:21] [80:14] [82:16]
protective [22:4] [23:7]             [61:14] [63:5] [65:15]          ranking [71:23]                      [186:10] [189:20] [197:17]
  [179:4]                            [73:16] [75:13] [78:15]         rare [100:1,3] [207:20]              [234:15,23]
prove [105:21] [120:13]              [88:12] [102:9] [103:5]           [208:1] [210:17]                reasonable [11:12] [69:1,5
  [131:20] [201:14]                  [135:7,9] [143:2] [144:21]      rarely [102:20]                     ,7,10] [116:2] [142:2]
proves [112:18]                      [146:8] [175:15] [195:22]       rate [47:1,6] [55:7,19] [60:18]   reasons [62:12] [76:14]
provide [21:7] [40:18]             putting [13:6] [49:6] [165:17]      [74:23] [99:15] [129:10]           [152:1] [187:8] [235:6,12,16
  [59:2,3] [80:16] [177:24]          [169:2]                           [133:1] [157:5] [185:17]          ,22] [236:1]
provided [72:14] [82:1]            pyramiding [75:11]                  [186:8] [223:21] [224:1,4,22]   rebuttal [23:1] [73:12]




                                                                                                                                   A.22
                                                  4/21/2008 Trial Transcript

 [80:13]                          reducing [75:10]                  register [67:9]                   remands [37:16] [76:20]
recall [151:19]                   refer [13:23] [25:21] [111:21]    regs [101:16] [102:9] [111:17]      [147:17] [148:1] [149:12]
receipt [238:5]                     [135:11] [136:2] [174:12]       regular [94:15,19] [125:16]         [158:5,14,23] [159:22]
receive [47:18] [145:3]             [193:4] [200:8] [204:9]           [150:20] [156:10] [197:14]        [175:5] [185:25] [187:6,8]
   [192:8] [196:3] [197:15]         [216:17,22] [219:22] [220:        [214:8] [231:17]                  [188:14] [223:21] [226:4,9
   [231:20]                        12] [226:10] [233:1] [234:18]    regulation [50:4,5] [61:14]        ,16,19,23] [227:1] [235:1]
received [5:5] [26:19] [35:24]      [237:8]                           [67:6] [70:9,13] [82:17]        remarkable [75:14]
   [36:15] [37:9,24] [101:4,5]    reference [82:14] [96:10]           [100:11,24] [101:23] [145:      remedy [40:21]
   [106:21,22] [109:15] [110:       [174:20]                         10]                              remember [64:16] [72:21]
  5] [118:16,17] [192:11]         referenced [12:3]                 regulations [50:2] [67:19]          [161:15] [163:5]
   [208:16] [213:19] [215:9,10]   referrals [60:8]                    [68:5,10,11,21] [69:16,19]      removed [213:14]
   [219:1,2] [221:1,3] [223:14    referred [52:21] [60:6]             [77:25] [86:13] [87:14,18]      render [52:7]
  ,15,22] [224:1,4] [225:16,17]     [100:11] [110:24] [118:12]        [96:19] [101:7] [106:24]        renew [127:25]
   [228:5,6] [230:11,12]            [174:16] [192:18] [195:6]         [118:22] [166:24] [168:16]      reno [92:21]
   [232:10,11] [234:9,10]           [201:12]                          [207:6]                         reopen [44:5]
   [236:16,17] [238:11]           referring [52:16] [101:1]         regulatory [61:5] [63:19]         reopened [135:4]
receives [199:4]                    [188:8]                           [66:22] [67:12] [69:23]         rep [86:6]
receiving [199:3] [200:24]        refers [152:22]                     [79:5]                          repeated [46:19]
   [207:9] [222:5]                reflected [45:9]                  rehash [141:12]                   rephrase [156:19,20]
recent [37:3] [40:9] [43:14]      reform [81:24]                    relate [167:5] [201:25]           replicate [26:4]
   [44:24] [55:6] [63:14]         reformatted [211:12]              related [18:20] [71:4,21,22]      report [38:17] [42:13] [43:14]
   [92:20] [113:15] [196:8]       refuse [59:1]                     relating [201:8]                    [45:4] [54:12] [57:12]
   [227:14] [233:10]              refused [18:8] [21:22]            relation [19:1]                     [121:15] [162:15] [172:19]
recently [4:21] [31:15]             [29:21]                         relations [55:25] [56:1]            [214:25] [215:3] [216:3]
   [71:12] [90:13] [120:16]       reg [101:21] [103:6]              relationship [86:25] [90:16]        [218:18,20,23] [222:24]
   [215:3] [218:20] [222:21]      regarding [18:21] [20:20]           [92:11] [99:10]                   [225:20,21,22] [229:15]
   [225:11] [230:6] [232:5]         [38:24] [41:11] [96:20,22,24]   relative [115:12]                   [230:6,15,16] [232:5,14,16]
   [234:4] [236:11]                 [101:7] [168:2]                 relatively [66:14] [72:17]          [236:11,20]
recess [85:1,3] [107:15,17,18]    regional [8:2] [37:17,22]           [109:8] [119:17] [123:7]        reported [:] [242:6]
   [171:11,14,19] [236:7]           [39:21,25] [40:10,23,25]          [147:9] [151:18] [152:12]       reporter [34:18,21] [133:23]
   [239:17,20]                      [41:4,7,9,10,12,23,24]            [195:16] [196:14] [208:1]         [139:1]
recital [93:21]                     [42:25] [43:7,8,16,18]            [210:17]                        reporters [:] [242:2,4]
recognition [84:13]                 [44:13] [45:19] [46:11,18]      release [178:8] [198:20,21]       reports [14:1,8,9,14,18]
recognize [100:22] [101:15          [47:1,9,20] [49:8] [50:6,8,16   released [216:1]                    [36:20] [37:11] [44:19]
  ,18] [109:20] [125:25]           ,17,24] [70:16] [73:10]          relevance [149:4]                   [49:6] [105:8] [213:20,24]
   [165:25] [214:22] [218:15]       [74:13,15,22] [86:4,18]         relevant [19:5] [20:2,5]            [214:4,5,9,14] [215:1]
   [222:19] [225:9] [227:24]        [87:1,3] [88:3] [91:23]           [21:17,18,23] [25:22,25]        represent [83:14] [91:2]
   [230:4] [232:3] [234:2]          [92:14,20] [93:5,22] [94:6,12     [26:3] [28:6] [58:2] [107:8]      [93:1] [133:15] [146:19]
   [236:9]                         ,20] [97:2] [98:4] [107:3]         [127:18]                          [192:1,7,9,13,24] [193:2]
recognized [149:2] [164:24          [108:15] [115:1] [120:25]       relief [21:25] [49:24] [65:24       [194:18] [197:4] [203:23]
  ,25]                              [124:4] [127:14] [128:22]        ,25] [79:21] [82:6] [183:15]       [214:3]
recognizes [166:1]                  [129:24] [131:5,18] [132:25]    rely [39:3] [42:24] [53:13]       representation [12:25]
recommend [200:2]                   [133:5,9,20] [134:4,12]         remainder [143:19]                  [25:14] [28:5] [29:5,11]
recommended [82:24]                 [135:15] [137:1,13] [138:3      remaining [47:10,13,16]             [81:22] [82:1] [193:1]
reconcile [40:16]                  ,11] [140:21] [141:3,9,15,16]    remains [176:9,20] [187:11          [194:21] [197:23]
reconsider [135:15] [175:24]        [144:12] [145:3] [147:10,11      ,12,18]                          representations [56:17]
reconstruct [43:4]                 ,13,17] [148:15] [149:13,25]     remand [37:22] [47:21]            representative [:] [4:7]
record [3:6] [45:23,25]             [154:3] [155:17,23] [156:10       [49:9] [70:12,16] [71:15]         [192:10] [193:4] [209:8,10]
   [56:7] [59:18] [67:25]          ,11,17] [160:21] [162:24]          [72:1,3] [75:6] [77:2,18,19]    representatives [83:17]
   [69:14] [70:3] [76:15]           [169:4,9,17,25] [170:1,7,9        [116:5] [146:25] [148:21]         [128:19]
   [85:8] [104:24] [109:6]         ,19,21] [173:22] [174:6,8,9]       [158:13] [160:7,11,18]          represented [64:14] [94:11]
   [114:10] [117:17] [147:24]       [175:23,24,25] [182:11]           [185:17] [187:23,24] [188:        [121:6] [173:22] [174:1,2]
   [172:16] [176:9] [187:11]        [183:4,5,7,14,16] [185:5]        2,5] [209:16] [210:10]           representing [12:20] [65:19]
   [191:8] [242:9]                  [186:4] [187:19] [188:2,11        [217:16] [222:8] [224:1,4,11]     [94:21] [111:13] [193:21]
records [43:15] [44:1]             ,14] [193:9,10,11,13,14,17         [234:14,15,23] [235:6,12,16       [199:14]
   [79:6] [103:20] [104:18]        ,18] [195:7,23] [199:18,20]       ,22] [236:1]                     represents [197:11]
   [105:2,4,8,24] [113:17]          [202:17] [204:15,20] [205:      remanded [37:18] [46:7,10         request [38:5] [65:11]
   [135:20] [145:16] [177:5]       13,16,17,19] [207:1,3,10]         ,17] [47:11,14,16] [74:12,14]      [93:17] [97:7] [101:11]
   [178:9] [196:22] [198:3,22]      [210:14,15,24] [211:4,11,16       [77:4] [147:1] [148:20]           [116:11] [123:16] [140:14]
   [202:3,6,12] [206:23]           ,18] [213:21] [214:6] [216:4       [157:20] [158:3,10] [159:10]      [174:18] [178:9] [192:5]
   [214:7,8]                       ,5,24] [217:17] [219:15]           [186:15] [187:4] [189:24]         [228:11] [229:19,25]
recourse [204:6] [207:11]           [222:12] [223:4,22] [224:2        [210:11,13,15] [217:10]         requested [183:15] [209:14]
recurrent [132:7]                  ,13,23] [225:23] [226:1,7,14       [218:2] [222:10] [223:7,23]     requesting [231:20]
redecided [46:13]                  ,17,23] [228:24] [229:7]           [224:6,8,14] [226:7] [227:9     requests [116:14] [230:17]
redone [159:10]                     [230:21] [231:8] [232:17]        ,14] [234:16]                      [231:13,17]
reduce [62:25]                      [234:17]                        remanding [49:7]                  require [84:22] [116:15]




                                                                                                                                  A.23
                                                    4/21/2008 Trial Transcript

 [120:25] [175:4]                   revelation [36:25] [38:5]          [206:10] [207:23] [208:18]        run [28:13] [176:21] [197:15]
required [20:20] [21:16]            revelations [35:25]                  [209:17] [211:8] [215:1,18]     running [33:9] [83:10]
   [27:5] [99:25] [111:23]          reversal [185:17] [186:12]           [216:4,16,21] [217:3,13]          [163:5]
   [133:3] [201:5]                  reversal/remand [187:7]              [218:5] [220:4,9,25] [221:6]    runs [29:1] [66:3] [97:20]
requirement [61:10] [81:4]          reversals [159:21]                   [222:8] [223:1] [225:4]         ryan [:] [3:17]
   [99:19] [172:12] [179:11]        reverse [158:13] [159:4]             [226:9,14] [227:11,15,17]
   [229:20]                         reversed [47:8,11,14,16]             [228:16] [230:11] [232:25]      S
requirements [67:3] [68:20]           [109:5] [157:20] [158:3,5]         [233:6,17] [235:2] [236:6]
   [76:25] [77:6] [81:2] [125:10]     [159:10,11,12,14,16]               [237:1,2,11,15,16,19]           sacking [52:2]
   [196:25]                           [179:9,10] [187:5]                 [238:9] [239:15]                sad [113:7]
requires [61:7] [65:10]             review [5:12] [6:7] [38:3]        righthand [27:10] [164:11]         saigon [104:12]
   [79:13] [82:21] [83:5]             [40:17] [46:2] [47:9] [51:6]       [234:18]                        salient [84:20]
requiring [61:15] [81:2]              [63:24] [86:16] [91:19,21]      right-hand [27:10] [164:11]        salt [41:9] [194:1] [195:1,7,14]
rerated [133:11]                      [92:10,15] [96:19] [97:1,4,7    rights [:] [3:10] [19:12,24]         [211:17]
research [172:17] [202:8,10]         ,12] [103:24] [114:15]              [20:8] [61:25] [65:17,23]       sam [196:6]
researches [104:18]                   [116:15] [123:16] [136:14]         [67:7] [70:21] [81:23]          samuel [:]
residuals [98:22]                     [150:12,16] [156:12] [157:         [117:14] [194:20]               san [:] [:16] [196:4] [200:11]
resigned [39:13]                     16,17] [161:19,21] [162:6]       rise [85:2] [107:17] [171:15]      sanctions [4:15] [6:22]
resolution [37:21] [78:16]            [166:21] [168:2,22] [175:4]        [239:20]                        satisfied [74:9] [157:23]
   [219:11]                           [179:9] [181:14,19] [182:10]    rising [54:6] [55:17]              satisfy [16:25] [49:17]
resolve [4:22,25] [74:5]              [193:25] [194:2,25] [195:13     risk [55:21]                       save [20:21]
   [220:7]                           ,19] [203:9,10] [205:23]         rmr [:] [242:14,17]                saw [44:22] [81:10] [104:11]
resolved [74:1] [219:23]              [214:8,10,14] [220:1]           ro [87:6] [124:2] [127:14,15]        [162:7]
   [221:2,9] [222:14]                 [228:12] [229:22] [232:17,19]      [133:15] [139:20] [140:2]       say [8:20] [10:25] [12:1,4]
resolves [24:1]                       [233:4,13,14]                      [185:6] [223:19] [226:4]          [15:1] [16:11] [18:3] [19:5]
resources [42:5] [72:13]            reviewed [57:4] [86:19]           road [:] [25:10]                     [27:20] [31:21] [32:8,15]
   [194:17] [202:6]                   [128:15] [142:12,13] [164:      robert [54:19]                       [43:10] [44:8] [51:4] [56:19]
respect [6:25] [19:20] [39:8]        15] [207:5] [208:9]              rocket [109:3,8]                     [62:1] [64:15] [68:24,25]
   [41:24] [43:17] [49:13]          reviewing [32:10] [143:6]         rocketed [108:23]                    [69:13,23] [70:5] [74:19]
   [54:23] [112:25] [113:2]           [168:13] [194:13]               role [50:7,8] [91:19] [166:23]       [75:13,22] [76:25] [80:24]
   [114:16] [139:4] [149:24]        reviews [39:22] [40:10]              [169:9,17] [211:22] [212:3]       [81:9] [104:3,22] [107:8]
   [152:1] [154:13] [194:12]          [125:7,15] [132:5,6] [149:24]   roles [169:16]                       [111:24] [118:1] [119:16]
respected [53:21]                     [156:9] [190:3]                 rom [111:16]                         [128:3,6] [129:11] [130:3]
respecting [54:14]                  revising [109:25]                 ron [90:14]                          [131:21] [134:13] [135:7,16]
respects [53:16] [84:21]            revision [110:1]                  ronald [:] [3:21] [39:17]            [136:21] [137:7] [139:24]
respond [28:8] [77:23]              ribbon [108:19] [201:18]             [53:20] [85:5,9,11] [97:8]        [141:4] [142:14] [143:1]
   [178:11] [183:20,24] [184:       richard [:13] [3:19]                 [240:6]                           [146:10] [147:2,19] [148:14]
  3] [208:5] [220:10]               rick [42:3]                       r-o-n-a-l-d [85:9]                   [153:20] [156:8,9] [158:7]
responded [14:24] [220:17]          rid [123:6]                       rooms [54:4]                         [160:16,18] [163:3] [171:1]
response [6:25] [7:5] [8:3,15       right [4:17] [8:8,10,11]          ros [223:19]                         [179:9] [180:5,12] [181:17]
  ,16] [9:11] [10:8] [76:2]           [9:6] [12:11,18] [13:19,20]     rosenheck [54:19] [55:6]             [184:11] [186:5] [187:15]
   [178:4,12]                         [15:3] [16:22,25] [18:6]           [64:17]                           [188:10] [190:6] [204:19]
responsibilities [193:21]             [21:4] [25:3] [27:10] [30:15]   rosenhecks [64:14]                   [205:21] [206:18] [208:6]
   [211:22]                           [34:8,10] [36:10] [44:10]       rosy [35:5]                          [220:9] [222:2] [233:16]
responsibility [209:12]               [50:23] [55:14] [56:6]          roughly [10:11] [195:15]           saying [14:7] [22:25] [52:4]
responsible [41:21,22]                [61:20] [64:2] [65:10,20,21        [224:25] [231:19]                 [56:2] [66:19] [108:22]
   [211:5]                           ,22] [70:16] [71:14] [72:2]      round [149:16]                       [109:1] [121:24] [146:2]
responsive [9:18] [12:22]             [73:25] [74:20] [80:17]         row [223:18] [232:22] [234:          [161:2,4] [170:17] [174:8]
   [13:2] [62:20] [69:21]             [81:15] [84:25] [92:6]            24,25] [235:9,12,20] [236:23       [179:3] [181:7] [189:9]
rest [15:23] [30:6] [76:22]           [93:18] [94:17] [96:14]           ,25] [237:8]                       [202:2,5]
   [158:5] [172:18] [187:4]           [100:13] [108:4] [109:14,24]    rows [223:18] [235:9]              says [8:14] [10:8,24] [11:11]
   [189:23]                           [110:11] [117:16] [118:9]       rpr [:]                              [13:2,25] [18:3] [43:9]
restricted [50:24]                    [121:13] [125:13] [133:18]      rubens [97:8]                        [60:11] [68:2] [70:14]
result [50:14] [108:18,24]            [135:2,4] [136:16] [140:12]     rule [4:11] [13:24] [14:8,12]        [71:18] [76:23] [103:13]
   [113:24] [115:6] [179:18]          [141:18,25] [144:14] [145:         [15:23] [21:15] [78:16]           [111:1] [112:12,16] [113:18
   [221:15]                          23] [146:11,16,17] [148:19]         [131:23] [187:22]                ,21] [114:8] [116:12] [117:15]
results [40:9] [97:1] [150:14]        [152:13] [158:2] [159:1,2,4]    ruled [22:2]                         [119:22,23] [130:17,18]
resumed [96:16] [108:5]               [164:11,17] [166:7] [172:11]    rules [13:22] [96:20] [97:16         [131:23] [132:25] [144:5]
   [240:8,]                           [173:19] [174:13] [177:17,18]     ,18] [106:25] [118:22]             [159:25] [167:8] [170:13,18]
retaliation [21:24]                   [178:16] [179:2,6,8,20,24]         [128:12] [133:3] [145:12]         [175:3,12] [177:9,14]
retired [41:16] [89:15]               [180:15,23] [181:20] [182:         [156:24] [158:16] [166:24]        [178:1] [180:16,17] [188:11]
   [211:14]                          6,7,16,21,22] [184:5] [185:         [168:15] [179:2,3,4] [180:12]     [199:2] [234:15,24]
retirement [52:13]                   5,6,10] [186:4] [187:23]            [208:11]                        sc [:] [112:13]
return [45:3] [57:17] [199:8]         [189:7,25] [190:1] [191:2]      ruling [14:25] [29:17] [34:24]     scared [104:10]
returning [53:6]                      [198:15] [199:16] [200:15,25]      [80:19]                         scarring [229:13]
revealing [21:10]                     [203:22] [204:16] [205:5]       rulings [80:21]                    scathing [54:12]




                                                                                                                                      A.24
                                                   4/21/2008 Trial Transcript

schedule [99:20] [196:25]           [150:16] [166:14,15] [174:4]      [40:6] [71:19,20,23] [99:16]     sick [115:8]
 [205:3]                              [175:10] [215:3] [217:21]        [172:14] [181:2,4] [204:23]     sid [3:9]
scheduled [60:10] [120:10]            [218:20] [222:21] [225:11]     service-connected [39:10]         side [6:18] [16:22] [18:13]
 [229:5]                              [230:6] [232:5] [234:4]          [40:6] [71:19,20,23] [99:16]      [33:17] [36:16] [39:9]
scheduler [115:16]                    [236:11]                         [172:14] [181:2,4] [204:23]       [50:22] [151:21] [164:11,17]
schedules [66:24]                  segment [52:14]                   servicemen [196:19]               sides [23:17] [30:8,10]
school [40:13] [86:3]              seize [186:17]                    services [39:19] [52:22]          sidney [:]
schwartz [:] [3:23,24]             select [229:1]                      [85:20] [104:22] [197:16]       sign [146:2] [164:17,21]
scope [59:5]                       selected [192:9]                  serving [86:7]                      [165:17]
score [115:9] [131:22,24]          self [48:2] [90:4]                sessions [40:2]                   signature [202:25]
 [132:2]                           selfhelp [90:4]                   set [14:11] [54:24] [64:4]        significance [102:1] [117:19]
scrap [115:12]                     self-help [90:4]                    [67:1] [68:10] [78:8] [84:21]     [162:19]
screaming [163:6]                  senate [78:9]                       [87:13] [98:7] [138:5,12,14]    significant [158:19]
screen [36:9] [112:8,9,10]         senator [87:4]                      [212:18]                        silver [104:4]
 [117:6] [126:2,10] [130:24]       send [50:10,12,17] [116:11        sets [67:7] [113:14] [123:23]     similar [84:20] [122:16]
 [136:18] [174:14] [190:16]          ,13,20] [117:3,12] [130:16]     seven [42:12] [64:2] [69:18]        [157:10]
 [219:19] [230:25] [232:23]           [131:3,25] [146:3] [147:14]      [71:25] [138:5] [199:1]         simple [7:16] [9:11] [72:1]
 [236:23] [237:3,7] [238:10]          [149:15] [166:20] [174:17]     sevenpage [199:1]                   [80:14]
 [239:6]                              [177:19]                       seven-page [199:1]                simpler [23:5]
screwed [145:17]                   sending [186:16] [221:3]          seventies [180:6]                 simply [5:13] [7:6] [10:23]
seated [85:7] [191:7]              sends [178:7,9]                   several [52:12] [53:16]             [11:22] [12:12,24] [20:2]
second [11:16] [27:7] [35:15]      senior [24:17] [39:5] [77:8]        [82:11] [86:10,15] [89:13,14]     [25:14] [26:3] [83:3] [161:4]
 [36:15] [37:18] [41:20]           sense [:] [3:5] [28:10] [39:20]     [91:4] [93:10] [96:11]          single [31:14] [56:23] [71:16]
 [46:12,15,24] [83:21]                [99:12] [102:9] [195:12]         [97:3] [103:3] [116:4]            [83:16] [134:12] [180:19]
 [100:10] [101:18] [109:12]        sent [50:5] [86:20] [147:6]         [117:21] [121:4,24] [180:20]    singleinterest [83:16]
 [119:4,11,22] [148:20]               [173:8] [185:18] [217:15]      severity [49:4] [181:6]           single-interest [83:16]
 [158:25] [172:17] [180:21]        sentence [112:16] [119:11]        sexual [102:15,18,21]             singleissue [71:16]
 [216:3] [225:20] [230:14]            [175:2]                        shame [149:16]                    single-issue [71:16]
 [232:14] [233:8] [234:14,24]      separate [71:17] [102:17,19]      share [233:23]                    sir [131:12] [145:9] [171:7]
 [235:19]                             [105:1] [180:25] [181:23]      sheeting [150:1,4,5,8,17]           [173:17] [191:2]
secondary [132:17]                    [199:11] [213:13,15]           shes [73:12]                      sister [91:6]
secondly [60:6] [70:23]            separation [104:1]                shh [36:20] [54:8]                sit [16:6] [198:15]
 [71:6] [84:10]                    september [210:9]                 ship [18:8] [103:15]              site [41:22]
seconds [8:4]                      series [120:11] [150:14]          shoot [111:5]                     sits [146:18] [209:22]
secondtolast [225:20]              serious [15:16] [37:25]           short [6:10] [38:7] [39:12]       situation [24:19] [53:1]
 [232:14]                             [51:23] [53:3] [55:20]           [45:13] [85:1] [171:11]           [55:13] [62:5] [67:10]
second-to-last [225:20]               [79:13]                          [223:16]                          [197:15] [198:4] [224:19]
 [232:14]                          seriously [79:10]                 shortcuts [108:15] [130:6]        situations [138:11]
secondtothelast [230:14]           serve [53:6]                        [131:18]                        six [38:2] [71:14] [72:2]
second-to-the-last [230:14]        served [51:9] [60:21] [145:15]    shorter [117:25]                    [81:9] [92:13] [180:2]
secret [22:4] [36:20]              serves [54:20]                    shortly [52:17]                     [190:14] [196:19]
secretary [39:14] [50:20]          service [39:10] [40:2,6,24]       shot [103:17,19] [105:5]          sixty [78:19] [178:4,11]
 [59:6] [61:13] [67:6] [68:5,25]      [41:5,16,19,21] [44:1]         shouldnt [14:7] [28:22]             [184:9] [199:7,9] [207:15,22]
 [73:9] [83:19]                       [51:4] [61:2,11] [71:2,5,19      [61:16] [64:5] [80:14]            [220:17]
secretarys [77:25]                   ,20,23] [73:24] [85:24]           [82:8] [83:15]                  sixtyday [220:17]
secretly [51:22]                      [86:6,11] [87:2,11] [88:2]     show [33:8] [44:10,20,22]         sixty-day [220:17]
section [13:23,24] [61:2,6]           [90:11] [91:3] [94:9] [98:18     [53:7,15] [54:15] [56:14]       size [205:15]
 [67:18] [79:4] [86:12,17]           ,19,20] [99:16] [102:21]          [64:18] [71:13] [72:16]         sizemore [119:1]
 [110:11,14,21] [111:8,11,22]         [103:12] [105:2,4,24]            [75:16] [76:7] [80:2] [90:14]   skip [89:6]
 [116:10] [117:14] [167:19]           [106:1] [107:4] [109:6]          [105:5] [135:20] [143:1]        skipping [143:17]
 [228:8]                              [111:23] [114:11,13,20,23        [146:12] [147:16] [157:5]       slice [58:14]
sections [67:1] [86:10,15]           ,25] [115:20] [116:3,21,22]       [160:4] [188:13,17] [202:8]     slightly [126:16] [173:21]
 [111:8] [112:4] [215:21]             [118:1] [119:24] [121:7]         [229:14]                          [174:2] [223:25] [225:5]
sector [57:16] [70:24]                [124:7] [128:19] [134:13,14    showed [48:11] [61:22]              [237:7]
security [66:2] [70:25]              ,15,22] [136:10] [145:25]         [109:6] [161:14] [229:15]       slow [62:5] [76:13] [80:6]
seeing [103:17] [144:6]               [146:19] [172:4,8,10,12,14     showing [5:12] [44:13]            slowly [188:25]
 [223:9]                             ,16] [173:17,22] [174:3]          [57:8] [136:5] [185:1]          slows [77:12]
seek [82:7,12]                        [181:2,4] [191:23,24]            [187:13] [189:8]                small [29:8,10,18] [115:25]
seeking [76:18] [121:6]               [192:15,21] [193:6,20]         shown [18:15] [51:20]               [127:15] [152:12] [195:16]
 [197:4,11]                           [195:5,18] [196:5,22]            [141:22] [160:3]                  [196:14] [205:16] [239:7]
seemed [58:4]                         [197:5,11] [199:13] [200:8     shows [38:9] [59:18] [60:17]      smith [177:8,10]
seems [23:5] [95:19]                 ,11] [201:6] [202:23,24]          [73:7] [77:20] [79:13]          soc [45:14] [182:24] [215:22]
seen [18:16] [31:7] [34:10,13]        [203:8] [204:23] [209:18]        [122:25] [126:10] [141:25]        [216:16] [220:10]
 [35:1] [60:7] [106:25]               [210:22] [211:1,2,3,4,13,21]     [160:6] [162:9] [165:8]         socalled [87:2]
 [114:9] [115:7] [121:20]             [213:25]                         [175:16]                        so-called [87:2]
 [133:22] [143:1] [149:25]         serviceconnected [39:10]          shredding [49:7]                  social [66:2] [70:25] [119:24]




                                                                                                                                   A.25
                                                  4/21/2008 Trial Transcript

sold [89:23]                      specialists [205:13,17,19]        starts [36:19] [44:24] [104:      stressful [112:15]
soldier [199:25]                  specialized [55:8] [78:2]          21] [110:9,11] [118:8]           stressor [43:13] [44:2]
soldiers [38:10]                  specializes [67:14]                 [119:6] [127:14] [178:23]         [61:11] [102:2,11] [103:2,9
solely [11:3] [181:1]             specific [13:23] [58:7]           state [3:6] [40:4] [85:7]          ,10,16] [104:6,8,15] [105:7
solutions [40:21]                   [69:18] [82:17] [152:10]          [191:8]                          ,25] [106:3,6] [108:9,11,18
solved [4:18]                       [156:21] [167:5] [214:2]        stated [77:10]                     ,22,24] [109:1] [113:2,10,19
somebody [15:21] [17:5]           specifically [12:12] [131:8]      statement [7:9] [18:4]             ,23] [114:8] [115:19] [121:9
  [18:2] [23:20] [25:24]            [174:16] [202:20]                 [31:14,17] [34:22] [45:14]       ,16] [131:20] [140:7] [172:2
  [73:17] [75:13] [102:24]        specifies [45:18]                   [56:8] [62:15] [64:17]           ,3,5,7] [184:25] [201:6,8,14
  [114:9] [117:23] [128:5]        spectacularly [136:20]              [69:18] [70:18] [120:2,14]       ,19,24] [202:1] [203:21,25]
  [202:16] [203:17]               speculating [135:23] [137:          [122:2] [126:19,22] [136:4]     struggle [40:16]
somehow [58:6] [71:4]              18]                                [142:1] [143:2,6,18] [150:25]   stuck [76:4]
  [79:13] [172:7] [235:1]         speculation [88:25] [152:8]         [151:8,11] [152:22] [154:1      studied [187:14]
someone [27:23] [61:1]            speed [40:16] [48:12,15]           ,17,20,22] [161:4] [182:15,17    studies [54:9]
  [79:8] [113:13] [164:14]          [59:5] [162:10] [163:2]          ,21,24] [183:3,17,19] [184:      study [38:8] [55:6] [57:10,22]
someones [79:17]                  spell [85:8] [191:8]               4,10,22] [185:4,8] [206:25]        [97:10] [119:24] [161:14,15]
something [5:8] [6:17]            spelling [108:20]                   [207:1,4,9,12,16,20] [208:        [162:13] [190:21,22]
  [8:6] [9:5] [11:5] [13:12]      spend [42:5] [51:4] [80:14]        8,13,15,18,22] [216:1,11,14      stuff [17:21] [78:19]
  [18:2,3] [24:5] [32:8,13]         [114:5]                          ,19] [220:12] [237:9,11,14,17    subcolumns [215:22]
  [33:1] [45:20] [50:5] [56:21]   spending [58:6,12]                 ,20] [238:2,17,24] [239:4,12       [237:4]
  [63:3,17] [70:9] [71:4]         spends [41:1] [42:4]               ,14]                             subject [4:14]
  [76:4] [102:12] [104:9]         spent [58:20] [61:17] [92:24]     statements [31:21] [51:11]        subjects [82:24]
  [105:1] [106:12] [108:19]         [152:20]                          [102:23] [105:8] [120:1]        submit [57:8] [63:22] [64:22]
  [111:5] [118:10] [129:15]       spindle [122:20]                    [121:22] [142:8,12] [143:5]       [70:4] [73:6] [76:1] [77:24]
  [134:15] [141:12] [145:9]       spinning [149:11]                   [151:2] [184:13,25]               [78:1] [83:3] [84:3,5,19]
  [155:18] [168:7] [173:6]        split [237:7] [238:10]            states [:] [:6,,,18] [83:14]        [135:16] [145:21] [154:23,25]
  [178:14] [180:16] [188:10]      sprenkel [:] [3:13,14] [35:18]      [161:15] [242:5]                  [175:25] [176:18,19] [181:
  [195:21,23] [197:25] [199:      spring [22:24]                    stating [82:12]                    15] [182:14,22,23] [183:4]
 9] [203:11,15] [210:18,20]       sprung [75:1]                     station [213:3] [231:7]             [190:16] [198:19] [199:10]
  [212:21]                        ssoc [183:18]                     statistic [174:10]                  [201:21] [207:16,25] [208:
somethings [79:16]                ssocs [237:5,8]                   statistical [102:6] [190:21,22]    4]
sometime [22:2]                   stacey [:] [3:13]                 statistics [54:7] [71:16]         submits [44:4] [176:15,23]
sometimes [33:15] [63:1]          staff [59:20] [60:4] [72:8,11       [72:4] [75:12,13] [148:19]        [208:2] [237:15]
  [108:14] [113:1] [121:19]        ,15] [205:23] [211:23]             [174:5] [188:13] [189:14]       submitted [59:16] [73:7]
  [138:6] [146:10] [160:20]         [229:20]                        status [85:23] [111:2]              [75:15] [82:11,19] [83:7]
  [175:1,22] [183:13] [185:3]     staffing [60:21]                  statute [59:3] [61:3,6] [68:4       [93:5,7] [121:22] [184:19]
  [186:14] [197:17]               stage [11:16,17,19] [45:13]        ,7,8,20] [69:17] [70:14]           [187:9,16,21] [206:20]
somewhat [64:19]                    [81:16,23] [82:3] [93:1]          [78:24] [80:25] [81:25]           [208:14,17] [237:19]
somewhere [16:17] [74:22]           [187:11] [233:13]                 [82:1] [84:19] [106:24]         submitting [208:2]
  [89:2] [161:16]                 stages [65:12,13,25] [81:7]         [111:17] [115:24] [177:21]      subpoena [19:17] [51:1,2,8]
soon [30:11] [34:1] [60:19]         [82:5]                          statutes [50:2] [84:21]             [65:20]
sooner [204:18]                   staggering [42:23]                  [86:13] [87:14,18] [166:24]     subpoenas [65:11] [67:5]
sorry [88:23] [107:8] [112:5]     stand [27:1] [85:5] [89:4]        statutory [50:22]                   [81:6]
  [129:17] [133:23] [139:1]         [128:6] [165:14]                steady [55:7] [72:17]             subsection [111:22]
  [144:6] [151:15] [182:4]        standard [112:21,22] [120:        step [145:24] [159:4]             substance [238:5]
  [183:6]                          5,7]                             steps [43:25]                     substantial [99:18]
sort [58:21] [66:9] [81:17]       standards [59:4,7] [64:3]         steven [77:8]                     substantive [45:22] [154:23]
  [82:7] [113:1] [164:10]           [83:4] [84:10] [87:13]          stichman [39:23] [89:16,17]         [176:19] [207:13] [208:21]
  [181:22] [212:25] [214:11]        [128:12]                          [90:1,21]                         [216:19,23] [219:24] [227:
sorts [113:2]                     standing [52:5]                   stick [142:20]                     25] [237:1]
sought [21:11]                    stands [107:17] [212:12]          sticks [92:23]                    substitute [24:22] [27:22,23
sound [11:12] [52:23]               [239:20]                        stigma [62:25]                     ,25] [64:6]
sounds [20:16] [76:7]             star [104:4]                      stood [14:15]                     succeed [153:8]
source [61:6] [164:20]            stars [121:23]                    stop [86:25] [92:8] [98:3]        successful [153:17] [159:19]
sources [97:15] [106:25]          start [13:3,18] [15:7] [24:4]       [103:25] [104:13] [130:3]         [198:6]
sovereign [63:20]                   [37:17] [75:3] [85:18]          stops [176:2]                     suffer [61:12]
space [103:14]                      [101:16] [134:1] [151:7]        storm [92:24]                     suffered [98:21] [104:6]
speak [28:22] [125:20]              [231:2] [239:19]                story [36:18] [51:20] [57:3]        [108:24]
speaking [52:3] [53:5]            started [90:7,22] [93:22]         straight [72:21]                  sufficient [54:2] [80:16]
speaks [149:22] [162:13]            [122:19] [126:14] [155:11]      strategic [52:16,18] [53:8,14       [106:5] [202:10] [229:22]
  [167:10]                          [157:3]                          ,23] [54:25] [68:19,23]          suggest [64:9] [73:21]
special [67:13] [83:22]           starters [10:7]                     [69:10]                           [83:8,9] [84:2] [157:4]
  [102:15] [173:8] [187:16]       starting [30:5] [45:8] [47:2]     strategy [16:3] [63:11]           suggestive [132:14]
  [195:22]                          [78:17] [86:1] [157:6]          strawman [58:25]                  suicidal [60:6]
specialist [202:15,16]            startling [35:21,24] [36:16,25]   street [:] [:3,]                  suicide [36:1,3,4,21,24]
  [203:3,6,16] [205:8] [206:7]      [37:9]                          stress [160:14]                     [37:2] [51:24] [52:2,3]




                                                                                                                                 A.26
                                                   4/21/2008 Trial Transcript

 [53:25] [54:15] [55:22]           [51:17] [52:25] [55:3] [56:12]     [188:16] [199:11] [200:5]          [171:9,16] [186:23] [191:2,3]
   [59:24]                           [57:7] [84:13,16] [93:16]          [212:21] [226:12] [229:18]         [192:4] [219:6]
suicides [36:11,13,18,23]            [95:8] [96:5,6,7] [97:17,20]    telling [12:24] [16:3] [37:4,6]    thanks [136:7]
   [55:18,19,20]                     [98:7] [122:6,13,16,18]            [38:19] [49:19] [85:18]         thats [8:20] [9:2,5] [11:6]
suicidology [53:22]                  [123:2,24] [124:9,19]              [119:14] [176:7]                   [13:9,14] [14:20,21] [16:8]
suite [:]                            [127:22] [128:3,18,21]          tells [113:13] [149:13]               [19:8] [20:10] [22:24]
sullivan [82:22]                     [131:15] [139:6] [156:24]          [177:23]                           [24:10,25] [25:16,17]
sum [58:5] [77:20] [84:5]            [157:6] [159:17] [169:14]       temporary [86:17]                     [29:7] [30:1,7,20,21] [33:19]
summarize [166:17]                   [206:17] [212:6,9,14]           ten [11:18] [51:5] [64:2]             [34:3,12,16] [39:24] [45:19]
summary [45:13]                      [213:11,12,13,14,15,17,20          [171:13] [180:2] [189:3]           [46:2,23] [48:19] [50:23]
sums [58:7]                         ,24] [214:4] [222:24] [231:11]   tender [93:15]                        [55:16] [57:2,8] [58:10]
sunday [33:22]                    systemic [38:24] [40:7]            tenminute [171:13]                    [59:6,16] [63:6,10] [64:9,12]
super [212:20]                       [42:7,11,22] [49:12] [132:7]    ten-minute [171:13]                   [65:13] [66:20] [67:3,9]
superficial [119:18]              systems [51:24] [53:18]            tension [98:7]                        [68:13] [71:9,14] [72:4,5,11]
superior [188:6]                     [57:21] [197:24] [211:23]       term [149:2,8,17,21] [150:8]          [73:1,14] [75:11,24] [76:2]
supervisor [145:13] [203:17]         [213:7,9]                          [177:20]                           [80:9,22] [81:15,17] [83:16
supervisors [127:16]                                                 terms [23:15] [85:22] [102:          ,17,19] [84:3] [87:7] [98:24]
supplement [22:21] [23:10         T                                    11] [117:19] [183:2] [193:15]       [101:12,16] [102:10,17,18]
  ,13]                                                                  [212:14]                           [103:4] [104:1] [105:12]
supplemental [70:18]              table [162:3,4,6,9]                terrible [62:13]                      [108:10] [111:6] [112:6,21]
   [183:16,19,22,24] [184:10      taken [10:9,21] [27:18]            terry [27:7,11,16,23,24,25]           [115:21,24] [118:3] [120:17]
  ,13] [185:8] [208:8,13,15,17      [35:5] [85:3] [92:1] [107:18]       [28:2,7] [29:7] [77:10]            [122:3] [123:5,12] [128:6,13]
  ,21] [237:9,10,14,20] [238:       [116:4] [171:19]                 test [93:4] [102:14] [121:6]          [129:23] [132:25] [135:11]
  2,17,24] [239:4,12,14]          taking [62:10] [68:18] [134:          [190:19]                           [137:4] [138:24] [139:2]
supplemented [23:6]                4] [220:7] [222:13]               testified [10:15] [24:24]             [140:11] [141:18] [142:22]
supplied [182:19] [209:10]        talk [17:3] [19:9,10] [24:7]          [38:13] [42:17] [51:22]            [145:11] [146:15] [148:11]
supply [176:12]                     [25:21] [42:9] [43:18]              [54:22] [62:24] [82:23]            [151:8] [154:7] [155:25]
support [56:14] [112:14]            [49:22] [57:24] [60:20]             [85:13] [93:9] [125:6]             [157:13] [159:17] [161:10,11]
   [184:25]                         [67:15] [80:11] [82:6]              [140:1,7,24] [155:6] [171:23]      [163:2] [164:17] [165:2]
supported [36:14] [69:13]           [103:16] [104:16,17] [120:          [175:1] [185:10] [187:6]           [170:7,23] [172:8,10]
supporting [111:9]                 1,2] [141:6] [157:3] [162:12]        [190:1] [191:13]                   [173:7] [174:6] [175:21]
supportive [146:22]                 [166:14] [170:1] [179:6]         testifies [28:1]                      [176:8] [177:17] [179:2]
supports [81:5,11]                  [190:21]                         testify [12:5,14,16,21]               [183:18] [186:7,18,23]
supposed [14:1,9] [15:21]         talked [42:2] [49:2] [50:22]          [14:20] [15:5] [20:13]             [188:7,15,16] [189:12]
   [79:14] [97:21] [98:2]           [59:8,13] [62:24] [64:8]            [24:25] [25:2,9] [28:18,19]        [198:9] [202:25] [203:22,24]
   [131:25] [138:4] [150:12]        [75:7] [78:6] [95:17] [120:8]       [29:8] [31:8] [39:5] [40:7,17      [206:6] [209:19] [212:11]
   [155:1] [178:19]                 [124:7] [157:18] [170:7]           ,18,23] [41:11] [42:3] [53:22]      [215:24] [216:18,23] [217:
suppositions [11:13]                [181:15]                            [54:1] [59:12] [76:10]            6,10,15] [218:1,7] [219:23]
supreme [81:19]                   talking [8:6] [31:16] [42:10]         [77:9] [79:9,18] [80:2]            [220:16] [222:7,25] [224:17]
sure [15:5] [19:22] [23:17,18       [64:10,11] [108:7] [109:17]         [82:22] [95:16] [96:3]             [231:23] [233:2] [237:9,12]
  ,19] [53:12] [56:20] [77:11]      [110:21] [119:8,9] [122:21]         [131:9] [139:16] [169:20]       theirs [18:8] [23:13] [34:11]
   [89:5] [94:25] [103:6]           [129:24] [139:19] [141:13]       testifying [13:3,18] [24:4]           [72:4]
   [112:10] [115:25] [122:8]        [166:18] [172:13] [177:13]          [95:17] [148:10] [155:15]       theme [34:23]
   [147:23] [164:13] [186:20]       [179:13,14] [183:2]                 [156:5] [157:4] [165:13]        themselves [75:1] [102:13]
   [204:10,13] [205:21] [210:     talks [59:16]                      testimony [10:5] [19:1]               [161:17]
  3] [234:22]                     tampering [49:5]                      [20:7] [21:23] [23:21]          theoretical [59:9]
surprise [29:20]                  tantamount [23:1,3]                   [24:3] [25:8] [27:25] [28:20]   theory [97:23] [129:16]
survey [48:10] [161:19]           task [42:13,16]                       [35:3,12] [36:17] [37:20]          [155:8]
suspicious [119:14]               tasked [97:23]                        [38:24] [43:2,11] [44:9]        therapy [62:18,22,25]
sustained [21:2] [99:6]           taught [40:13]                        [46:3] [47:23] [50:19]             [63:1]
   [124:11] [134:9] [135:24]      taxpayers [64:25] [83:15]             [51:15,16] [52:13,19]           thereafter [6:14] [242:7]
   [137:20,24] [138:8,16]         tdiu [99:13,21,24]                    [53:20] [54:18,19] [58:22]      therefore [67:18] [84:8]
   [139:12] [142:6] [144:19,24]   teach [102:18] [103:13]               [60:15] [64:21] [68:22]         theres [65:20,21] [69:22]
   [149:19] [150:22] [151:14]       [111:15] [133:17]                   [72:7] [75:20,25] [76:23]          [70:2,25] [71:2,12,13]
   [163:8] [165:20] [166:6]       teaching [90:14]                      [84:6,12] [96:18] [118:13]         [72:6] [75:1,3] [76:6,19]
   [167:3,11,24] [168:10,19,25]   team [173:8]                          [128:1,24] [131:11] [142:5]        [77:22,23] [79:3,15,21,22]
   [171:4]                        telephone [9:25]                      [149:8,22] [152:15,21]             [81:7] [97:21] [102:14,17,19]
suzanne [:] [4:8]                 tell [5:24] [8:5] [10:3,12]           [161:18] [164:23] [168:2,6         [107:2] [139:6] [164:16]
switched [86:15] [123:2]            [14:10] [15:8,21] [18:1]           ,14] [169:8] [172:16,19]            [166:4] [169:19] [176:5]
sworn [85:13] [191:13]              [19:23] [26:12] [30:2,25]           [174:17] [190:6,20] [214:15]       [177:18] [181:22,25] [185:
   [240:]                           [34:5,7,25] [36:8] [51:19]       textbook [89:19,22] [96:10]          5,20] [192:22] [202:9]
symptoms [113:9] [115:3]            [58:20] [66:16,17] [79:20]          [111:16,18]                        [205:5,22] [210:17] [215:21]
   [131:22]                         [114:2] [118:24] [119:20]        thank [12:19] [13:10] [14:21]         [217:4] [229:19] [230:22]
system [8:16] [35:6] [38:18         [124:8] [137:21] [145:17]           [18:6] [30:7] [32:20] [56:4]       [235:20] [237:1]
  ,21,25] [40:8,9] [42:20]          [153:17] [160:9] [170:22]           [84:24,25] [85:4] [96:15]       theyd [79:9]
   [48:2,17,20] [49:3,15]           [173:13] [177:7] [178:13]           [107:16] [131:12] [148:11]      theyre [62:22] [67:1] [74:20]




                                                                                                                                    A.27
                                                   4/21/2008 Trial Transcript

 [79:5] [80:8] [87:7] [99:15]      [83:7] [84:5] [114:7,23]           timing [15:5] [76:20] [78:5]     treated [36:22] [65:2] [113:
  [107:5] [175:23,24] [183:10]       [133:20] [134:3,14] [137:8]        [80:7]                          11] [177:7,10]
  [184:8,18] [186:17]                [171:23] [186:15] [193:24]       tinnitus [132:20]                treating [51:1]
theyve [72:14]                       [194:8] [201:5] [205:22]         tired [186:16,21]                treatise [89:18]
thing [4:10] [6:23] [20:22]          [215:18] [235:4]                 title [67:19]                    treatment [54:22] [57:15]
  [24:23,25] [25:25] [26:1]       threemonth [235:4]                  titled [65:16]                     [59:19] [62:10] [73:5,22,25]
  [27:21] [44:3] [55:14]          three-month [235:4]                 titles [219:19]                  treats [52:23] [57:13]
  [75:16,19,21] [115:11]          throughout [208:1]                  today [13:4,18] [15:2] [30:5]    trend [44:23] [50:15]
  [120:9] [135:5,8] [139:11]      throw [122:22]                        [31:21] [33:4] [44:22]         trends [214:12]
  [151:24] [161:15] [165:8]       throwing [122:24]                     [56:14] [78:5] [118:13]        trial [:] [5:17] [14:2,11]
  [187:7] [197:21,22] [198:23]    thrown [12:10]                        [123:11] [124:9] [125:1,2]       [15:5] [16:3,19] [20:23,24]
  [208:11] [212:25]               throws [24:10]                        [130:19] [142:19] [170:3]        [29:20] [32:23] [34:3]
things [8:22] [10:2] [13:21]      thursday [15:7] [83:7]                [204:11] [210:1,3] [211:2,7]     [38:23] [39:6] [42:10]
  [17:23,25] [26:19] [44:2]       thus [34:14] [56:13] [77:1]           [213:5,25] [214:15] [229:16      [47:5] [56:21] [58:8,23,24]
  [58:18] [59:20,25] [60:3,23]    tickled [103:15]                     ,18]                              [59:8,25] [63:8] [65:6,9]
  [63:14] [73:2] [80:6] [83:19]   tide [54:6]                         together [115:13] [198:15]         [66:10] [69:17,21] [78:6,15]
  [93:3] [98:11] [106:3]          till [34:2]                         told [8:25] [9:24] [10:1,4,6]      [80:24] [81:6,18] [83:6]
  [110:20] [121:19] [129:25]      time [5:6] [6:2,14,15,21]             [26:7,10] [32:18] [51:21]        [101:5] [106:22] [109:15]
  [149:12] [180:20] [201:5]          [7:11] [9:9] [13:5] [14:6]         [52:12] [87:5] [113:24]          [110:5] [118:17] [162:8]
  [209:6,7]                          [15:9,14,15,16,17] [17:25]         [115:16] [116:20] [175:24]       [215:10] [219:2] [222:16]
think [5:17] [6:2,22] [12:10]        [18:10,16,17] [20:22]              [177:10]                         [223:15] [225:6,17] [228:6]
  [13:7] [15:3] [16:14] [19:15]      [22:17] [23:24] [24:4,13,14]     tomorrow [239:19]                  [230:12] [232:11] [234:10]
  [21:17] [22:16] [23:4,19,22]       [25:12] [26:13] [27:18]          took [10:14] [59:15] [103:14]      [236:17] [241:4]
  [24:1] [26:20] [27:2,3]            [31:5,10,18] [32:17,18,19,24]      [108:21] [121:10,25] [127:     trialbysurprise [16:3]
  [29:5,13] [32:15,23] [36:22]       [34:9] [35:25] [37:18,21]         5] [138:14] [229:5]             trial-by-surprise [16:3]
  [37:6] [44:15] [49:19]             [42:22] [44:22] [45:6,19]        tool [212:9,19] [213:2,22]       tried [19:16] [52:10] [69:7]
  [58:1,9] [61:13] [64:18]           [46:13,17] [50:3] [55:8]         tools [213:6]                      [70:8] [77:15,16] [107:8]
  [65:6,7,23] [73:12] [74:25]        [57:5,16] [58:3,16] [60:5]       top [30:22] [36:20] [38:14]      trip [210:5]
  [77:20] [79:13,24] [80:10,22]      [61:17] [62:11] [63:13]            [92:22] [93:3] [109:7]         trips [128:13]
  [81:10] [82:7,25] [84:10]          [64:3] [68:15,18] [70:1,20,21]     [110:9] [150:1,4,5,8,13,16]    troops [45:2]
  [88:6] [91:24] [92:21,22]          [71:16] [73:20] [76:3]             [236:25]                       trouble [99:12] [102:20]
  [103:5] [104:25] [108:20]          [77:23] [80:15] [82:19]          topic [134:23] [163:10]            [103:15] [104:9] [144:6]
  [109:2,11,19,22] [110:16]          [86:8,22] [88:17] [89:5,7]         [167:6]                        troubled [57:14]
  [111:19] [120:22] [121:18]         [90:25] [91:8] [93:14]           topics [96:7]                    troubling [54:7] [114:22]
  [123:20] [126:6] [127:19]          [94:3,5,11,16] [108:14]          total [30:23] [36:4] [59:22]     trucks [103:17]
  [135:20] [141:9] [144:1,5]         [109:12] [113:3] [116:7]           [148:6]                        true [11:6] [18:4] [28:16]
  [152:14] [153:6] [161:14]          [120:25] [127:3,4] [131:17]      totally [180:7] [181:10]           [52:1] [64:18] [74:4] [76:14
  [169:6,11] [170:17] [171:9]        [132:3] [133:21] [134:5]         totals [223:19]                   ,18] [93:24] [135:13] [155:24
  [173:24] [174:10] [177:21]         [138:3,19,22] [139:1,2,15,16     touched [181:3]                   ,25] [156:3] [174:6,11]
  [179:13,14] [185:10,15]           ,18] [140:2] [141:13] [142:2]     touting [51:17]                    [176:8] [186:5] [242:9]
  [187:17] [189:5] [196:1]           [143:20] [146:8,15] [147:18]     toward [116:10]                  truly [75:14]
third [:] [11:17] [46:18]            [148:6,9,20] [150:12]            towards [98:16] [119:10]         trust [121:12] [161:7,8]
  [47:8,25] [54:9] [71:12]           [153:9,18,23,25] [154:2,3,8      town [16:1]                      truth [34:6] [36:8]
  [78:4] [80:11] [84:2,19]          ,11,12,17,24] [155:2,21]          track [15:11] [139:7] [181:25]   truthful [162:21]
  [107:13] [164:2] [180:24]          [156:7] [157:18] [158:25]          [212:16] [213:10,14]           try [16:20,22] [26:24] [29:16]
  [181:12] [206:24] [218:22]         [163:1] [172:22] [175:20]        tracked [213:17]                   [37:7] [49:16] [85:21]
  [238:22] [239:8]                   [176:20] [178:18] [180:9]        tracking [213:15]                  [87:3] [91:7] [103:13]
thirdparty [54:9]                    [185:7] [194:22] [196:23]        tracks [181:24]                    [105:2] [106:16] [161:13,17]
third-party [54:9]                   [198:20] [200:16] [207:20]       traditional [182:3,4,6]            [178:1] [203:12,13,18]
thirdtolast [218:22]                 [210:7,8] [212:21] [215:24]      traditionally [229:4,9,17]       trying [4:22] [10:2] [24:17]
third-to-last [218:22]               [216:18,23] [217:15,22]          tragic [153:20]                    [29:19] [33:10] [55:14,24]
thomas [97:8]                        [218:9] [219:10] [222:3]         train [15:11] [130:23]             [62:24] [64:6] [151:20]
thompson [118:24] [120:8]            [229:5] [242:9]                  training [39:22] [40:2]            [169:23] [198:2]
though [105:16] [111:3]           timeline [75:19] [204:9]              [41:22] [62:17] [88:13]        tsunami [52:21] [53:2]
  [115:20] [116:19] [149:12]         [222:3]                            [90:10] [98:25] [99:1]         turn [18:5,8] [22:7] [73:19]
  [170:6] [187:2] [190:20]        timelines [78:8] [79:1]               [120:16] [124:7] [192:20,22      [88:18] [100:4] [101:8]
thought [7:16] [12:4] [62:19]        [82:24]                           ,23]                              [109:18] [110:7] [116:7,8]
  [105:16] [186:23] [212:11]      timely [58:12] [78:6] [81:2]        transcribed [242:7]                [118:5] [119:3,22] [156:8]
thousand [75:3] [91:17]              [129:18] [154:25]                transcript [:]                     [216:7] [218:22] [223:8]
  [158:7,21] [175:17] [176:9]     times [10:15] [11:15] [14:5]        transcripts [97:8]               turned [17:21] [52:11]
  [179:8,22]                         [29:4] [42:25] [43:6,19]         transferred [86:9]                 [58:11] [79:20]
thousands [7:24] [79:14,15]          [68:12,16] [69:19] [73:19]       transfers [102:23]               turning [56:12] [65:3] [68:12]
  [89:23] [91:18] [142:14,15]        [75:22] [77:4] [92:13]           traumatic [38:11] [45:4]           [101:18] [202:9] [235:19]
  [143:6] [153:7] [160:24]           [119:12] [133:5,20] [134:3]        [51:9] [119:23] [172:3]        tv [90:14]
three [10:15] [15:6] [16:11]         [136:9] [137:8] [176:10]         travel [210:19] [231:6]          twice [82:10] [109:12]
  [29:18] [41:1] [64:2] [71:17]      [186:15] [189:19] [211:2]        treat [62:3]                       [217:21]




                                                                                                                                   A.28
                                                 4/21/2008 Trial Transcript

twopart [102:14]                 unlawfully [58:6] [79:17]         ,19] [66:1] [67:6] [68:5,19]      vba [35:10] [41:7] [42:17]
two-part [102:14]                unless [67:25] [104:15]             [69:10,15,20] [70:8,17,20]        [50:20] [73:25] [197:5,12]
type [66:10] [80:24] [98:23]       [107:3] [113:22] [143:12]         [71:8] [72:7,14] [74:2]           [202:16] [203:1] [226:9]
types [98:15,16,17] [106:15]       [184:7]                           [76:4,22] [77:6,14,15]          vbm [89:18]
  [169:4] [201:14] [210:13]      unlike [70:3,24]                    [78:15,20] [81:8,11,13,23]      vca [177:19] [179:11]
  [228:15]                       unquote [53:2]                      [84:13,16] [86:1,4,9,15,18]     vcaa [179:14] [198:25]
typewriting [242:8]              unreasonable [11:11]                [87:3,5,12,21,23] [90:7]          [199:3] [200:25]
typical [115:21] [137:11]          [17:24]                           [91:22,23,24,25] [92:16]        verification [43:14] [44:2]
  [179:24] [180:3]               unrelated [180:7]                   [93:15] [94:19] [96:19]           [108:9] [121:16] [140:8]
typically [207:22]               unrepresented [173:21]              [97:2,9,16,20,23] [98:8,12      verified [201:6] [202:1]
                                 unsubstantiated [152:6]            ,21] [99:12,13] [101:21]         verify [121:18] [122:1]
U                                until [16:4,7] [21:7] [22:9,22      [102:8,22] [103:5,6,9,10]         [201:19] [202:8]
                                  ,24] [29:21] [30:24] [31:8]        [104:5,17] [106:7] [107:1,5]    vermont [:19]
u.s.c [120:14]                     [33:20] [72:23] [107:15]          [108:12] [109:1,25] [111:1]     versus [3:5] [46:20] [53:10]
uh [104:13] [126:21] [181:9]       [143:25] [146:4,5,7] [176:16]     [113:14] [114:1,8,10,19]          [77:14] [169:10,17] [223:23]
  [185:24] [186:1] [200:9]         [184:22] [185:3] [211:18]         [116:20,21] [117:3,22,25]         [226:14]
  [204:3] [205:11]               unusual [39:20]                     [118:22,24] [119:8] [120:4]     vet [113:8,11] [114:11]
uhhuh [104:13] [126:21]          updating [89:22]                    [121:13,25] [122:17,18]           [115:6] [121:24] [130:18]
  [181:9] [185:24] [186:1]       upheld [74:14] [117:23]             [123:9,23,25] [125:1]             [134:18] [143:15] [154:20]
  [200:9] [204:3] [205:11]       upon [19:4] [22:2] [48:18]          [126:24] [128:6] [129:16]       veteran [8:18] [19:12,24]
uh-huh [104:13] [126:21]           [55:2] [131:14] [136:9]           [130:9,10,15,16] [131:21,24]      [20:8] [24:7] [40:2,19]
  [181:9] [185:24] [186:1]         [137:12] [140:19] [144:8]         [132:18] [134:18,20] [138:        [44:4] [45:17,20] [48:25]
  [200:9] [204:3] [205:11]         [156:23] [160:24] [168:5,12      2,11,20,21] [143:12] [145:13]      [58:17] [60:11] [61:20]
ultimately [159:19] [188:23]      ,13,22] [199:3] [223:22]           [153:25] [154:16,23] [155:        [62:3] [66:25] [70:15,21]
unable [99:17]                   upsetting [118:23]                 1] [156:23] [157:19] [160:5        [71:3,18] [73:22] [76:1,3]
unavailable [12:2]               us [:] [8:17,19] [9:1,2,20,24]     ,25] [161:3,7,13] [163:12]         [77:5] [78:18] [80:16]
unbelievably [90:24]               [10:1,4] [11:8] [12:9,12]         [166:18] [168:14,15] [169:        [81:12] [91:2] [94:11,22]
uncle [118:3]                      [16:3] [17:13] [18:9] [19:9]     24] [170:12,17] [173:5,8]          [98:18,21] [99:16,17,19,25]
unconscionable [42:15]             [22:19] [23:15] [25:16]           [176:16,18,23] [177:7,8,11]       [103:4,8,13,23] [104:1,5,11]
unconstitutional [58:5]            [30:2,24,25] [31:9] [33:8]        [178:1,4,7,8,9,24] [180:16]       [105:5,6,10,25] [106:2,8]
  [68:7,8] [77:25] [80:25]         [66:16,17] [72:23] [73:12]        [182:25] [189:13] [192:18]        [108:12,22] [109:2] [111:2]
  [81:21] [82:2,4,16] [84:8]       [75:1] [78:23] [85:18]            [193:3,10] [195:3] [196:20]       [113:8,19,24] [114:1]
underneath [217:3]                 [98:23] [99:8] [118:1]            [197:2,24] [198:3,15,21,24]       [115:7,22] [116:1,3] [117:16
undersigned [242:4]                [138:18] [140:15] [141:19]        [199:8,12,14,17,18,21,23]        ,21] [120:14] [121:20,22]
understand [8:24] [14:3]           [164:20] [165:5] [169:9,16]       [200:1,5,7,14,20] [201:21,23]     [128:19] [129:17] [131:21]
  [24:6] [26:15] [27:2,4]          [178:13] [200:2] [203:24]         [202:7,19] [204:2] [205:3]        [134:3,13,23,25] [141:17]
  [29:15,17,22] [72:4] [88:22]     [204:1] [212:8] [242:7,9]         [207:12] [208:5,6] [209:4,9]      [143:18] [145:10,21] [146:
  [110:25] [126:18] [142:23]     use [20:5,22,23] [31:10]            [210:24] [211:14,15,19]          19] [154:16] [157:15,23]
  [159:24,25] [166:24] [169:       [32:2,5,16] [33:4,14,16]          [212:15] [213:7,9] [214:4,6       [175:5,22] [176:12,14,18,23]
 9,16,22] [175:16] [181:7]         [35:19] [42:5] [54:8] [62:25]    ,7] [215:5] [216:20] [218:20]      [177:1,4,6,9,13,19,23,24]
  [185:3] [188:25]                 [85:21] [102:10] [105:4]          [225:11] [227:25] [230:7]         [178:5,7,13] [179:15]
understanding [128:25]             [201:2] [213:3,20]                [232:6] [234:5] [236:12]          [180:3,13,14] [181:4,8,14,18]
  [138:2] [150:8] [156:23]       used [39:24] [72:25] [87:14]      vacation [60:12]                    [182:14,19,22] [183:3,20]
  [166:10] [167:21] [168:12]       [122:6,19] [128:12] [136:4]     vacols [139:6] [206:17]             [184:9,11,21] [185:7]
understood [14:12]                 [147:9] [149:8] [212:14]          [213:11,17,18,20,24]              [192:13] [193:3] [194:19,20]
unemployability [96:22]            [213:5,6,11]                      [214:4,25] [215:25] [218:18]      [195:17] [196:22] [197:20]
  [99:11] [100:12,24] [132:15    using [23:1] [72:14] [194:1]        [222:24]                          [198:13,17,19] [199:4]
 ,16]                            usual [55:4]                      vague [66:14] [95:2]                [200:16,25] [201:16,21,25]
unfair [132:15]                  usually [105:1] [185:16]          valid [103:16]                      [203:13] [204:5,19] [205:2]
unfinished [40:16]               utilize [20:9]                    valley [:]                          [206:15] [207:9,14,22]
unfortunately [11:13]                                              valuation [115:3]                   [208:2,4,20,24] [209:8,21]
  [70:8] [116:19] [198:10]       V                                 value [66:20] [113:10]              [210:19] [215:25] [216:2,19]
  [221:25] [237:7] [238:10]                                        variables [198:11]                  [220:1,3,14,17] [228:10,11
unhappy [175:22,23]              va [:] [4:7] [24:17] [29:9]       variance [107:3]                   ,19] [229:11,18] [231:6,8]
unidentified [82:13]               [35:6] [36:1,22,23] [37:1,5]    varies [71:23] [205:15]             [235:1] [237:14,19]
unilaterally [21:25]               [38:4,13,24] [39:3,4,14,20]     various [40:25] [57:18]           veterans [:] [:15,] [3:4]
unique [39:20] [40:22]             [40:8,10,23,25] [41:16]           [86:18] [92:13] [96:19]           [7:10,11] [18:21] [19:10,19]
  [41:23]                          [42:2,4,11,13,14,25] [43:1        [202:6]                           [27:8,10] [29:1] [35:9,10]
unit [105:8] [109:7] [122:1]      ,5,9,21] [44:12,19] [45:13,15    vary [224:23]                       [36:12,13,21] [37:25]
  [145:16] [212:22]               ,24] [46:6,12] [47:20] [48:1     vas [36:4,23] [39:21] [40:11        [38:2,5,6] [39:10,13,18,23]
united [:] [:6,,,18] [83:14]      ,11,20] [49:4] [50:5] [51:12]     ,18] [43:17] [50:1] [52:16,20]     [40:4,5,15,20] [41:3,13,16]
  [242:4]                          [52:1,6,20,23,25] [53:7,9]        [54:10,13,14,16,21] [55:11        [46:1] [47:11,13,22,23]
universe [157:13]                  [54:2,7,13,22,23] [55:4,23]      ,19] [57:18] [59:10] [65:12]       [48:3] [49:10] [52:23]
university [40:13] [54:20]         [57:7,11,13,14,23] [58:11,20]     [73:9] [78:17] [79:14]            [53:3,6] [56:2,12] [57:1]
unlawful [79:1] [80:16]            [59:1,23] [60:4,13,18]            [86:8] [222:22] [233:8]           [58:17] [60:6] [65:1,10,17,23]
  [84:7]                           [61:14] [63:5] [64:7] [65:17      [235:1,13,17,23]                  [67:8] [69:19] [70:4,10,11]




                                                                                                                                 A.29
                                                    4/21/2008 Trial Transcript

 [74:7,19] [76:21,22] [77:13        ,25] [164:1]                       [39:19] [40:11] [41:8] [90:17]      what-have-you [6:18]
  ,14,16,18] [78:21] [81:8,9,24]    vote [63:6]                          [209:19] [210:13] [212:4]           [23:21] [26:20]
   [85:19,24] [86:6] [87:5,23,25]   vs [:]                               [228:20] [231:9]                  whats [6:23] [11:11] [13:19]
   [88:5,13,15,16] [89:18,19]       vsr [86:6]                         wasnt [11:19] [22:9,12]               [22:13] [28:18] [58:23]
   [90:8,14,15,18,20,23]            vsrs [128:18]                        [60:15] [82:2] [120:13]             [62:6] [72:7] [99:2] [106:10]
   [91:7,8,12,16] [93:1,6,7,11      vulnerable [40:20]                   [124:5] [157:21] [187:20]           [112:22] [135:4] [154:16]
  ,12] [94:5,24] [95:23] [100:                                           [237:16]                            [157:16] [158:9] [164:4]
  2] [103:12,16] [104:7]            W                                  waste [6:2,15] [25:12]                [197:20] [224:4] [227:3]
   [107:4] [108:22] [109:7]                                              [58:2]                              [234:19]
   [111:13] [112:14,22,25]          w/o [237:5,8]                      wasting [6:21] [22:16]              wheel [37:19] [148:23]
   [113:10,16] [114:15,20]          waging [55:25]                     watching [153:16] [155:10]            [149:7,8,10]
   [115:3,18] [117:7,9,14]          wait [5:21] [7:20] [8:25]          ways [43:24] [75:12] [189:17]       wheels [75:7]
   [121:23] [127:23] [130:9]          [10:23] [13:11] [20:21]            [201:20,22]                       whenever [121:13]
   [131:1] [133:9] [137:8]            [22:13] [34:18] [38:6]           websites [202:7]                    whereas [227:13]
   [143:25] [149:10] [151:18]         [68:16] [75:22] [77:4]           wednesday [78:14]                   whether [5:24] [6:17] [21:2]
   [152:1,4] [153:3,6,8,17,19]        [123:22] [127:7] [133:25]        week [12:5] [16:18,21,23]             [33:18] [39:9] [62:18]
   [157:24] [158:11,12,16]            [138:6,11] [139:24] [146:7]        [17:2,6,7] [21:8] [26:8,9,10        [70:25] [71:1,2,3] [72:6]
   [161:2,10,16,17] [173:17,21        [148:9] [153:20] [156:6]          ,11,16,17,23] [30:6] [36:6]          [80:8,15] [106:5] [115:25]
  ,22] [174:1,2,7] [175:18]           [178:11,17,20] [199:9]             [37:1,5] [55:20] [57:5,10]          [118:22] [137:4] [165:22]
   [176:6] [179:25] [186:9,13]        [231:6]                            [58:9] [65:5] [94:7] [95:14]        [166:1] [170:15] [194:13,15
   [188:15] [190:12] [192:1,2       waiting [7:10] [29:4] [38:3]         [99:1,2] [109:25] [120:21]         ,17,18] [204:22] [206:22]
  ,7,9,11,14,24] [193:2,22,24]        [52:7] [68:12] [137:19]            [210:8]                             [210:18] [218:9] [223:7,22]
   [194:5,7,23] [195:4] [196:8        [184:8] [200:24] [229:24]        weekend [7:4] [17:15]               whichever [207:16]
  ,19] [197:4,11,16] [198:9,25]     waits [178:4]                      weekly [130:22]                     whip [212:12]
   [199:14] [201:10,23] [203:       waivable [200:25]                  weeks [10:21] [41:2] [51:20]        whoever [97:25] [136:5]
  15,20,23] [209:13] [210:20]       waive [70:15]                        [54:12] [60:12] [193:24]          whole [5:22,23] [46:19]
   [211:3,4,13] [212:17]            waived [192:23]                      [194:8] [215:18]                    [61:22] [84:15] [102:18]
   [216:24] [217:7,16] [222:11]     walcoff [12:16] [73:8]             weidman [42:3] [58:15]                [123:4] [135:9] [151:8]
   [223:3] [228:1,13,21,23]         walk [175:14] [189:1]              weight [9:3] [131:10]                 [152:20]
   [229:1,4,6,10,20] [230:18]       walked [117:21]                    well [4:24] [6:19] [8:8,25]         whom [201:9]
   [231:5,21] [234:13] [235:13      walks [197:20]                       [9:3] [10:13] [13:13,20]          whose [202:25]
  ,17] [236:21]                     wall [105:20]                        [15:10] [17:1,5] [18:25]          why [5:16] [12:6] [15:25]
vets [76:17] [114:19] [133:15]      walnut [:]                           [19:11,15] [26:12] [27:16]          [16:21] [18:13] [25:18,19]
   [161:13]                         want [4:20] [5:3,15] [7:19]          [29:11] [30:11,19] [44:3]           [27:20] [29:22] [30:4]
vfw [40:3]                            [12:7,12,13] [15:5,20]             [49:22] [61:24] [63:4]              [37:4] [56:20] [63:23]
vha [35:9] [51:2] [52:10,11]          [16:5] [18:3,9] [19:4,10,19]       [64:15] [70:6] [73:6] [75:1,20]     [64:1] [72:22] [76:14]
   [54:19] [197:6,12,15,18]           [20:19] [24:18] [25:18]            [76:25] [80:2] [82:6] [85:24]       [77:20] [80:4] [82:8] [83:11
via [163:12]                          [26:8] [27:22,23,25] [28:1,3]      [86:3] [87:4] [90:20] [91:22]      ,13,17] [92:5] [107:14]
vice [27:9] [77:8]                    [29:7,24] [30:1] [32:10,18,22]     [92:13] [95:5,20] [98:25]           [120:10] [122:24] [125:22]
vicechairman [27:9]                   [49:24] [54:8] [56:5] [57:11       [100:6] [103:22] [105:24]           [127:18] [130:13,14] [132:
vice-chairman [27:9]                 ,24] [58:24] [62:1,2] [65:14        [106:18] [107:2] [112:7]           1] [135:19] [137:7] [143:13]
victims [102:15]                     ,24,25] [66:24] [67:2,10,11         [119:3] [121:21] [127:9]            [144:22] [152:1] [184:16,20
video [52:14] [231:2,3,4,7,11        ,13] [70:6,15] [78:18] [80:5]       [129:9] [133:16] [135:7]           ,23] [208:10] [210:15]
  ,13]                                [81:2,6] [82:11,12] [83:1]         [138:21] [142:25] [144:8,21]        [234:16]
videos [231:10]                       [90:15] [92:7] [95:10,22]          [145:20] [146:2] [151:6]          will [:] [4:8,14,15] [6:1,13,14]
videotape [39:15]                     [98:12,13] [100:4] [101:8]         [154:14] [156:14,15] [159:          [7:8] [11:9] [12:5,23] [13:7]
vietnam [76:17] [90:9]                [109:10,18] [110:7] [112:8        20] [161:10] [162:23] [163:          [15:8,16] [16:10,20,21,22]
   [108:23]                          ,16] [114:2] [118:3] [126:4]       21] [168:7] [170:11] [184:18]        [17:3,7,8,10] [18:1,16]
view [52:25] [58:21] [63:15]          [132:3] [135:20] [155:8,11]        [186:20] [188:7,8] [197:22]         [19:5,6,23] [20:5,21] [22:11]
   [72:22] [98:12]                    [160:13,16] [161:23] [163:         [201:16] [202:9] [205:18]           [23:23,25] [24:12,15]
violate [84:20]                      10] [170:25] [171:1,11]             [209:17] [217:23] [223:18]          [25:7,14] [26:8,10,13,17,24]
violates [61:24] [65:23]              [175:15] [180:18] [181:2]          [224:13] [229:4] [238:14]           [27:5] [28:5] [29:2,16]
   [76:13]                            [184:12,16] [210:18] [229:       went [51:6,10] [69:2] [75:10]         [32:14,18] [33:10] [34:1]
violation [46:23]                    19] [230:14] [238:9]                [81:18] [86:18] [88:7]              [36:10] [38:8,10,11,12,23]
violations [65:16] [236:2]          wanted [14:14] [15:4] [18:7]         [91:11] [92:21,22] [115:14]         [39:3,17] [40:7,17,18,22]
virtually [52:7]                      [25:2] [27:7] [29:25] [39:11]      [124:4] [126:16] [140:17]           [41:11,15,23] [42:1,3]
virtue [29:9]                         [74:25] [76:7] [181:23]            [158:23]                            [43:12,18] [44:9,10] [45:20]
visit [231:7]                         [210:19]                         werent [22:20]                        [46:2] [47:22] [48:16]
visited [92:20]                     wants [13:17] [83:16,18]           west [46:20]                          [49:13] [52:13] [53:7,15,20
visits [41:22]                        [162:25] [180:14] [194:21]       western [194:3] [195:7]              ,22] [54:1,15,18] [56:2,14]
vocational [185:1]                  war [38:15] [90:5] [105:10]        weve [31:7] [90:4,23] [91:4           [57:8] [58:2,16] [60:16,19]
voided [70:13]                        [175:6] [179:25] [180:3]          ,6] [189:12]                         [61:12] [62:5] [68:21]
voir [93:17,19] [95:18]             warrant [115:3]                    whatever [64:18] [74:10]              [70:10,11,12] [71:20]
   [240:]                           wars [55:3]                          [104:23] [206:23] [209:14]          [72:7,15] [73:16] [74:19]
vol [240:2,5] [241:4]               wartime [106:2]                    whathaveyou [6:18] [23:21]            [75:13,24] [76:10,23]
volume [:] [118:6,7] [163:24        washington [:12,] [24:18]            [26:20]                             [78:23] [79:18,19] [80:1,13]




                                                                                                                                         A.30
                                                  4/21/2008 Trial Transcript

[81:13] [84:6,12,25] [89:6]       [133:2] [161:13] [170:17]          [41:7,8,19] [86:5,10,12,22]       [178:21] [179:13] [180:3]
  [91:1,9] [92:5,14] [93:3,4]       [221:3] [237:9,10] [238:1]         [91:22,24] [122:17,24]            [182:4] [188:9] [189:19]
  [94:20] [103:6,9,10] [104:3]      [239:12]                           [123:9] [124:2] [141:4]           [239:2,3]
  [107:14] [112:7,11] [116:2]     witness [8:14] [12:3,5]              [210:24] [211:20] [212:7,23]   year [10:18,19] [38:15]
  [118:1] [119:7] [120:23]          [15:20] [16:3] [22:19,20]        worker [107:5] [129:10,11,13        [41:2] [43:13,15] [60:1,23]
  [121:20] [122:14] [123:22]        [23:23] [26:6,7] [28:1,11,12]     ,14,17]                            [71:14] [75:25] [76:1,4]
  [124:8] [127:15] [128:8]          [29:21,25] [30:5,13] [31:5,6     workers [90:13] [98:21]             [78:19] [83:24] [89:21]
  [130:3] [134:1] [135:14]         ,10,14] [32:4,6,16,17]              [129:21]                          [92:13] [94:13] [121:10,16
  [137:9] [140:10] [141:6]          [39:17] [52:21] [55:12,16]       working [41:2] [91:3] [95:23]      ,18] [140:7] [141:17,20]
  [147:14] [151:8] [152:2,24]       [73:12] [76:10] [79:18]            [100:1] [153:2] [157:13]          [143:19] [146:10] [154:21]
  [153:20] [156:20] [158:12]        [80:2] [82:22] [85:6,9,12]         [193:23] [210:5] [211:15]         [172:20] [176:4,6] [189:4]
  [163:11] [170:15] [171:9,13]      [89:8] [96:3,11] [101:11]          [212:3] [213:21]                  [193:24] [194:8] [204:7,17]
  [172:18] [177:7] [178:1]          [122:12] [124:12,25] [125:       workings [94:23]                    [207:14,18] [215:16,17]
  [188:16] [201:24] [203:15,17]    4,8] [126:6,9] [127:9,12]         workload [193:19] [196:4,15]        [219:14] [225:5] [233:9]
  [218:2] [223:12] [231:22]         [129:12] [130:5,20,22]             [205:15] [207:19] [209:2]         [234:14]
  [236:6]                           [134:8] [135:2,4,13] [136:17       [212:17] [213:9,23] [214:12]   years [37:15,23] [40:14]
william [40:12]                    ,20] [137:19] [140:1,11,23]         [225:22] [236:20]                 [41:1,9,17] [42:12] [43:20]
willing [49:16]                     [142:25] [145:7,9] [150:6]       works [12:6] [89:21] [92:11]        [44:24] [46:22] [48:22]
wiltsie [:] [3:21,22] [89:3]        [151:5] [152:8] [153:12]           [95:9] [96:5,8] [134:11]          [50:4] [53:21] [71:14]
  [93:17,20] [95:3,21] [96:1]       [155:24] [156:2,4] [160:20]        [156:24] [202:16] [209:23]        [73:23,24] [79:15] [81:9]
  [99:4] [100:14] [112:2]           [162:11] [165:14] [169:19,23]      [218:1]                           [84:1] [89:13,14] [93:24]
  [122:11] [123:8,21,22]            [170:4,12,17] [171:16]           worksheet [106:14]                  [98:20] [100:1,2] [101:22]
  [124:10,23] [127:25] [128:        [172:24] [173:1] [174:22,23      world [51:17] [57:7] [59:11]        [113:11] [114:7,23] [117:21]
 17] [130:2] [131:12] [134:7]      ,24] [191:3,4,6,9,12] [192:5]       [84:13] [105:10] [182:25]         [121:4,25] [123:9,10]
  [135:23] [137:17,23] [138:        [197:8,14] [199:13,16,18,22      worldclass [84:13]                  [128:16] [147:17,19,20]
 7,15] [139:10,14,20,25]           ,24] [200:2,7,10,15,21]           world-class [84:13]                 [150:15] [166:19] [176:5]
  [140:9,22] [142:4] [144:18        [203:22] [205:8,10] [206:1       worry [6:16]                        [185:16] [189:12] [198:2]
 ,23] [145:6] [148:8,11,25]        ,3,10,12] [214:23] [216:13]       worse [42:19] [174:2]               [213:8] [222:1,2]
  [149:17] [150:2,6,21]             [217:25] [218:16] [234:21]       worth [115:15]                   yes [7:25] [14:19] [16:13]
  [151:13,20] [152:7,17,21]         [239:10]                         wouldnt [18:8] [25:11]              [22:3] [23:3] [24:21] [25:5]
  [153:11] [154:5] [155:10,22]    witnesses [7:17] [10:25]             [32:13] [66:16,17] [76:14]        [27:15] [88:4,9] [89:11,18,25]
  [156:1,14] [162:11] [163:7        [15:22,23] [16:1,5] [17:2,4]       [80:6] [82:18] [83:11]            [90:2,4,18] [91:20] [92:12]
 ,20] [164:8,25] [165:12,19]        [19:2] [20:13,20,25] [21:9,16]     [135:5] [178:24] [203:21]         [93:12,25] [94:2] [95:12]
  [167:1,9,23] [168:8,17,24]        [23:8,12,14,18,20] [24:6]        wound [98:21,22]                    [96:21,23,25] [97:3,5,10,14
  [169:11,19] [170:6] [171:3        [29:9,10] [30:12] [31:24]        wounded [121:24]                   ,19] [99:13] [100:25] [101:13]
 ,12,20,22] [172:24] [173:2,16]     [35:12] [42:1,2] [43:2,11]       wrap [171:9]                        [102:4] [106:9] [108:11]
  [174:21,25] [182:10,13]           [51:9] [52:21] [53:9] [59:16]    wrapped [23:7]                      [109:20,23] [110:13,16,23]
  [190:9,24] [197:7] [217:24]       [65:11,12,21] [81:1] [168:14]    write [6:9] [86:13] [87:18]         [111:12] [112:11] [118:14,20
  [240:9]                           [240:5]                            [146:20] [177:21] [178:12]       ,23] [121:2] [123:18] [124:16
win [88:16] [98:20] [117:10       wolinsky [:] [3:9,10]                [184:11] [209:20]                ,21] [126:9] [128:11,13]
 ,11] [121:11] [160:22]           won [81:20] [100:3] [115:17]       writes [114:1] [180:16]             [130:20] [131:12] [132:9]
  [161:6] [186:8,9] [196:21]        [121:12]                         writing [9:9,10] [66:17]            [133:4] [134:6] [136:13,15]
wing [37:1,8] [87:12,21]          wont [13:5] [31:7] [51:12]           [96:11]                           [137:2,16] [139:6] [140:18]
winning [160:7]                     [92:25] [125:11]                 writs [76:24]                       [141:24] [142:9,11,17]
winston [41:20] [195:8]           word [54:8]                        written [14:14] [25:21]             [143:9,21] [146:14] [147:21]
winstonsalem [41:20]              words [53:1] [55:11] [129:18]        [26:19] [27:24] [28:20]           [148:6,24] [149:5] [150:9,18]
  [195:8]                           [217:20]                           [29:13] [40:14] [161:9]           [151:4] [153:4,24] [157:2,7
winston-salem [41:20]             work [10:2] [17:8,10] [27:6]         [194:10] [229:9]                 ,12] [161:20,22,25] [162:7]
  [195:8]                           [30:11,15] [43:22] [44:5]        wrong [31:22] [61:9] [64:1]         [163:14,17] [166:11] [168:
winwin [196:21]                     [48:17,24,25] [54:10]              [65:7] [68:1] [72:2,3,6]         4] [170:4] [171:12] [172:1,3
win-win [196:21]                    [71:1] [73:11] [84:1] [86:19]      [75:2] [114:11] [123:12]         ,6,18] [174:4,24] [175:7,10
wipp [212:6,9] [213:10,14]          [88:2,7] [91:23] [92:1]            [155:18] [185:6]                 ,13,21] [176:14,22] [177:25]
wish [186:5]                        [96:9] [98:9,10,11] [105:20]     wrongly [27:17]                     [178:3] [179:2] [180:12]
withdraw [184:7]                    [119:24] [122:6,12,16,18,19      wrote [25:20] [39:23] [105:17]      [181:13,17] [182:20,23]
withdraws [220:3]                  ,25] [123:3,24,25] [124:1,5]      wyoming [87:5]                      [183:6,9,23] [184:20]
withheld [5:7,10] [20:4]            [127:4,13,14,16] [128:19]                                            [186:5] [188:1,4] [189:17]
withholding [22:7]                  [129:21] [130:11] [131:15,19]    Y                                   [191:19] [192:25] [193:13]
within [37:14] [60:8] [78:24]       [132:4] [133:11,12,14,15]                                            [198:24] [199:22] [201:1,13]
  [125:1] [143:19] [153:9]          [134:4,12] [138:19] [140:14      yale [54:20]                        [202:18] [204:13] [208:1]
  [170:1] [176:15] [180:19]        ,23] [143:12] [146:17]            yard [115:12]                       [212:5] [213:22] [214:16,24]
  [182:11] [193:11,13] [196:        [152:20] [155:16] [156:24]       yeah [24:10] [79:11] [89:2]         [215:4,6] [216:10] [218:17
 19] [200:19] [202:3] [207:18]      [185:2] [191:21] [194:7,12]        [101:16,19] [102:4,7,17]         ,19,21] [219:17] [220:2,11,24]
  [215:21] [216:5] [220:17]         [200:10,13] [203:19] [209:         [104:19,25] [105:14] [109:        [221:7,17,21] [222:20,23]
  [236:20]                         25] [210:22] [212:13,22]           24] [111:19] [117:2] [118:11]      [223:11] [224:10,21] [225:
without [20:7] [25:10]              [214:6] [227:18,19] [231:23]       [120:22] [121:18] [136:17]       2,5,10,13] [226:3,15] [227:
  [77:18] [91:1] [111:7]          worked [39:20,21] [40:25]            [158:22] [163:18] [177:21]       12,18,20,25] [228:2,12]




                                                                                                                                   A.31
                                  4/21/2008 Trial Transcript

 [229:2] [230:5,8] [232:4,7,21]
  [234:3,6] [235:11,14,21,24]
  [236:10,13] [237:6,12]
  [238:8,17,21] [239:16]
yesterday [33:21] [227:9]
yet [45:3] [46:17] [48:8]
  [55:7,23] [151:7] [184:9]
  [237:21]
ygnacio [:]
york [41:10]
youll [16:18]
young [104:11]
youre [62:10] [67:22,23]
  [73:22] [105:9] [165:14]
  [173:17,20] [179:2,14]
  [189:9] [200:14]
yourself [3:19] [10:25]
  [113:1] [124:14] [142:10]
yourselves [6:4,13]
youve [7:23] [70:9]

Z

zeiss [59:12] [62:23]
zero [205:4]




                                                               A.32

				
DOCUMENT INFO