Case Document 118-2 Filed 12/15/06 Page FIN THE UNITED STATES DISTRICT FOR THE WESTERN DISTRICT OF ALSTOM POWER INC. Plaintiff/Counterclaim Consolidated Defendant under vs. No. 03-627 (03-1050) RMF INDUSTRIAL CONTRACTING, INC. Defendant/Counterclaim Plaintiff ALSTOM POWER INC. Plaintiff vs. AMERICAN INDUSTRIAL ASSURANCE COMPANY Defendant Videotape Deposition of WILLIAM HARRINGTON Friday, August 26, 2005 The videotape deposition of WILLIAM HARRINGTON, called as a witness by the Plaintiff, pursuant to notice and the Federal Rules of Civil Procedure pertaining to the taking of depositions, taken before me, the undersigned, Lance E. Hannaford, a Notary Public in and for the Commonwealth of at the offices of McGuire Woods, 27th Floor, Dominion Tower, Pittsburgh, 15219, commencing at 9:05 o'clock the day and date above set forth. TRANSCRIPTION BY MORSE, GANTVERG HODGE, INC. PITTSBURGH, 412~281?0189 - ORIGINAL Case Document 118-2 Filed 12/15/06 Page APPEARANCES: On On behalf of the Plaintiff: Kilpatrick Stockton, LLP: Thomas P. Wilson, Esquire Chad V. Theriot, Esquire 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309 behalf of the Defendant: McGuire Woods, LLP: Ronald W. Crouch, Esquire Julian Neiser, Esquire Dominion Tower, 23rd Floor Pittsburgh, 15222 ALSO PRESENT: John Schwartzenburg George Zacharkiw David Scherm, Videographer EXAMINATION BY: PAGE: Mr. Wilson 3 EXHIBIT: MARKED: 421 172 422 184 423 217 424 241 Case Document 118-2 Filed 12/15/06 Page THE VIDEOGRAPHER: This begins the deposition of Mr. William Harrington. We are on the record. The time is 9:04 a.m. The court reporter may now swear the witness. WILLIAM HARRINGTON called as a witness by the plaintiff, having been first duly sworn, as hereinafter certified, was deposed and said as follows: EXAMINATION BY MR. WILSON: Good morning, Mr. Harrington. As you know, I am Tom Wilson. I represent ALSTOM Power, Inc. in this matter. And we are here to take your deposition today in your capacity as an expert engaged by McGuire Woods, I believe it is, to provide opinion testimony in the litigation between ALSTOM Power and RMF. Do you understand that to be your charge here today? A Yes, sir. I know you have been deposed before. In fact, once by me. So I will skip over the preliminaries, except to remind you that if I ask you any questions Case Document 118-2 Filed 12/15/06 Page 5.rebid. That is all I have. I imagine you have some comments, or you will need to refer to those, presumablythrough the testimony today. Do you think? A Yes. I brought them as notes in case I need to jog my memory to be able to answer your questions; All right. Well, when we get to that stage of the deposition, what I will do is when you feel the need to refer to them, I will ask that we mark them in to evidence, so that they are exhibits to your deposition, so at a later time we will have them available and be able to understand what you are referring to. All right? A That would be fine. Thank you. Mr. Harrington, have you ever been recognized as an expert witness by a court of law before? A I would say yes, in that I didn't testify in that court of law. Case Document 118-2 Filed 12/15/06 Page was challenged in a court of law as an expert witness, and the judge denied the challenge. The case didn't go to trial. So I didn't testify. But I was recognized as an expert. Tell me a little bit about that. What case was that, sir? A That was a case in Black Veatch. It actually was Mr. Fitch, et al. It was the HRSG accident up in Connecticut. You mentioned that in your last deposition. That was on the Milford project? A Yes. It was. You testified, if I recall correctly, on behalf of Black Veach; is that correct? A That's correct. Regarding some shortcomings you believed were in erection manual? A Erection manual, yes. When you say you were challenged, what do you mean by that? A ALSTOM challenged made a challenge before the court as to my ability to be an expert in that case. Case Document 118-2 Filed 12/15/06 Page was formally overruled in court documents that I was indeed qualified to be an expert. Your understanding is ALSTOM filed a challenge to your qualifications. And that the court rejected, overruled that challenge; is that correct? A That's correct. But you did not testify in that action? A I did not testify in that action. It didn't go to trial. Did you give a deposition in that action? A Yes. I did. Do you recall whether the challenge I am assuming the challenge was filed following the deposition. Do you know if that was A It was filed following the deposition. Tell me, again, what the subject matter of your opinion was in that action? A Well, the subject matter was that I expressed an Opinion that the erection manual was not clear, as it related to the timing of the removal of the diagonal bracing. Did you give an opinion on the impacts, if Case Document 118-2 Filed 12/15/06 Page any, of that lack of clarity? A No. I did not. So your opinion was limited to reviewing the erection manual, and based on your experience and qualifications, stating whether or not you believed the erection manual clearly indicated when diagonal bracing should be removed? A That's correct. Other than that matter, are there other instances in which you have been in your View recognized as an expert by a court of law? A By a court of law, no. Through several depositions as an expert, where it was not challenged. They just didn't get to trial or arbitration. I understand. So you have given depositions where a client of yours has engaged you to provide expert testimony? A That's correct. And you have given that testimony? A Yes, I have. But you haven't, other than the Milford action, you have not taken the stand in court and been Case Document 118-2 Filed 12/15/06 Page recognized strike that. Setting aside the Milford action, you have not been recognized by a court as an expert. Correct? A That's correct. I have not testified in court as an expert. Okay. What experience, sir, do you have in estimating the cost of erecting CFB, which you and I understand to be circulating fluidized bed, boilers? A That's correct. Well, I have a lot of experience. I started in the construction business back in the late '60'5, early '70's, which I think you will find in previous deposition, literally as a craftsman. And hit every step from assistant foreman to assistant foreman to assistant general foreman to supervisor to superintendent all the way to becoming CEO of Foster Wheeler Zak. I think in the previous deposition, I told you about a couple of CFB's that we as Foster Wheeler Zak had built, that I got intimately involved in not only the estimate, but in the performance on the jobs. There actually were three. Case Document 118-2 Filed 12/15/06 Page There was another one I had forgotten about. That was at Purdue University. They all three were.CFB's. That doesn't count the numerous CFB's that were bid under my watch and reviewed by me and that I got involved in that we didn't get the job. All right. Let's focus in on CFB's in which you personally estimated the cost of erecting a CFB. Can you start with that premise and tell me which projects on which projects you estimated cost of erecting a A By the time became popular in the United States I was no longer an estimator in the company. I was in capacity as an executive. But as an executive, I always got intimately involved in the estimating process all the way from challenging unit rates to looking at the overall estimates, because in my opinion, estimating is a big part of the construction business. Tell me, in your view when was the time that CFB's became popular in the United States? A Well, I first remember CFB's becoming popular probably in the late '80's. Case Document 118-2 Filed 12/15/06 Page building up and applying unit rates, did you use any external resources, I will call it, anything other than your own experience, which you have in your head, I mean to distinguish it from any documents or manuals or data that you brought from your prior lives, anything like that. A No. As I said, unfortunately, I have pretty good road memory, because I am called on by other clients in nonlitigation areas to come in and help them with looking at some of the data on their projects. But I didn't have any of the data available from past Foster Wheeler Zak or JWP Zak. I didn't have any of that data to rely on. So you apply and build up your unit rates based on that experience in your prior employments. But from within. Not through the use of any data that you maintain from your prior experiences. Correct? A No. I don't have any of the Foster Wheeler Zak records at all. They took all those when I took an early out. Case Document 118-2 Filed 12/15/06 Page any other records? A No other records, that I am aware of. What about Mr. Inks, did he help you to select unit rates? Or is that your job? A It is basically my job. I mean, I can't tell you if we are sitting in a conference room and I am talking about a particular alloy weld, and I say, "You know, that particular alloy weld, in my opinion, is worth XYZ manhours per weld," that Dave Inks wouldn't have I mean, if you thought I was wrong, he would certainly challenge my thinking. But because he was in charge of costs, all those kinds of things in a former life, but for the most part, I mean the final judgment was mine. I am the one that established all of the rates. And the rates we are talking about are direct manhour rates for again, I will just turn to I am looking at let's go to the economizer. That is easiest. It is behind tab 1, economizer. A Okay. And we have this table here. MR. CROUCH: Which tab?