1 1 2 3 4 5 6 7 8 TRANSCRIPT OF PROCEEDINGS BEFORE JENNIFER WEST, 9 HEARING EXAMINER 10 LANCE OLSON - LICENSE SUSPENSION 11 Washington State Toxicology Laboratory 12 September 10, 2007 13 - - - 14 15 16 17 18 19 BE IT REMEMBERED THAT, pursuant to the 20 Washington Rules of Civil Procedure, the Transcript of 21 Proceedings was taken before TIM BELLISARIO, Certified 22 Shorthand Reporter, #2774, and a Notary Public for the State 23 of Washington, on September 10, 2007, commencing at the hour 24 of 8:30 a.m., the proceedings being reported at 203 Airport 25 Way South, Seattle, Washington 98134. 2 1 APPEARANCES 2 3 JENNIFER WEST 4 PATRICK ESPANA 5 Washington State Department of Licensing 6 320 N. 85th Street 7 Seattle, Washington 98103 8 (206) 706-4262 9 Appearing on behalf of the Department of Licensing 10 11 THEODORE W. VOSK 12 Law offices of Theodore W. Vosk 13 2320 130th Avenue NE, Suite 250 14 Bellevue, Washington 98005-1752 15 (425) 753-6343 16 tvosk@comcast.net 17 Appearing on behalf of Mr. Olson and Mr. Gentry 18 19 ALSO PRESENT: 20 21 Cesar Velasquez, Attorney at Law 22 Quentin Batjer, Attorney at Law 23 24 25 3 1 EXHIBIT INDEX 2 EXHIBIT DESCRIPTION PAGE 3 (Exhibits 1-A through 1-K and 2-A 4 through 2-C were retained by 5 The Hearing Examiner.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 SEATTLE, WASHINGTON; 2 MONDAY, SEPTEMBER 10, 2007 3 8:30 A.M. 4 MS. WEST: Today's date is September 10, 2007. 5 This is the Department of Licensing hearing, or session, 6 that we are conducting at the State of Washington State 7 Toxicology Laboratory. My name is Jennifer West, I'm the 8 hearing examiner that's going to be conducting the session 9 today. With me is Patrick Espana, he's also a hearing 10 examiner of the Department of Licensing. And we're going to 11 go around the table and have Mr. Vosk introduce himself and 12 the individuals that are with him today. Let's do that at 13 this time. 14 MR. VOSK: Ted Vosk, attorney for Mr. Olson and 15 Gentry. And Brian Taylor, who is, I believe it's a Sheila 16 Musgrove case; Cesar Velasquez, who is part of my defense 17 team; Quentin Batjer, who is also part of my defense team. 18 And Andrea Robertson is going to be appearing in an hour or 19 two, and she'll also be part of, I guess we'll call it the 20 defense team at this point. 21 MS. WEST: Sounds good. 22 MR. VOSK: And I had some preliminary things I 23 wanted to touch on, when you get a chance. 24 MS. WEST: Okay. I'm standing in for Ann Lange, 25 the hearing examiner that actually set up this session. 5 1 It's my understanding, and the way I'm going to conduct the 2 session is fact finding for Department of Licensing 3 hearings, and information gathered here today may be used in 4 other departmental licensing hearings besides Mr. Olson's 5 case, who Mr. Vosk is representing. 6 Mr. Vosk, your client is not going to appear 7 today, correct? 8 MR. VOSK: That is correct. 9 MS. WEST: So we're going to do some fact 10 finding today, and take testimony of the analysts from the 11 state toxicology laboratory. 12 Mr. Vosk does have a couple of administrative 13 procedural questions, or motions. Do you want to proceed on 14 those? 15 MR. VOSK: Yeah. And I'll try to be real quick. 16 The first is, I just want to make sure -- I want to make 17 sure I hit everything here in my notes, that I'm only here 18 representing Mr. Olson, Gentry and Taylor. I don't think 19 that anything I do here today can be used to bind any other 20 individual in the context of a DOL hearing, both based on 21 their due process right to confrontation, and right to an 22 attorney. I also think under the RPCs, I have no authority 23 to represent anybody. And if I were to come up here 24 presuming to represent anyone, I could be in jeopardy of 25 some kind of ethical or professional sanction by the Bar. 6 1 So I just wanted to make clear, the only people I'm here 2 representing are those three individuals. 3 I wanted to make a motion to dismiss right off 4 the bat, because I had requested subpoena -- and a subpoena 5 duces tecum from Dr. Logan with respect to, I wanted his 6 testimony, and I wanted records with respect to the 7 investigation of what occurred here. Ms. Lange denied the 8 subpoena, said that she would not allow -- she wasn't going 9 to call Dr. Logan as a witness, and wouldn't grant me the 10 materials. Without those materials I really believe I have 11 been prevented from having an adequate opportunity to even 12 prepare for these hearings, because I don't even know what 13 these -- I don't know fully what's been alleged; I don't 14 know fully what the investigation determined. 15 There are a couple of cases, Cowles v. Spokane 16 Police Department, the information is now privileged, and 17 under King County, due process required that I receive those 18 records. I didn't get them. I think I've been deprived due 19 process at this point. I would move to dismiss these cases, 20 just the three that I'm here representing. 21 MS. WEST: Okay. And I understand that I'm 22 standing in for Ann Lange this morning and tomorrow. So I'm 23 going to deny the motion to dismiss. You may raise that in 24 your particular case when you are presenting the case to Ann 25 Lange. 7 1 MR. VOSK: Okay. The second motion to dismiss 2 is going to be on just the destruction of evidence. We've 3 got every single certificate that was signed by Ann Marie 4 Gordon, has now been removed and disappeared, hasn't been 5 provided to me. It's certainly evidence of perjury in this 6 case. It's evidence which goes directly to the matter of 7 whether or not the simulator solutions were properly tested 8 and everything else. Based on the fact that plainly 9 relevant exculpatory evidence was not only denied to me, but 10 seems to have been affirmatively destroyed, I think we've 11 got to dismiss the hearings in these three cases as well. 12 MS. WEST: Okay. Again, I'm going to deny the 13 motion, just because we're going to be fact finding today. 14 And you can raise that specific issue in each individual 15 case that you have with the Department of Licensing. 16 MR. VOSK: Okay. And again, just for the 17 record, in the Gentry matter I would move to dismiss. We 18 did request several subpoenas for all of the tox's that had 19 signed his simulator solution certificate. My understanding 20 is none of them were signed. Ann Lange refused to sign 21 anything, including one for Paige Long, who is one of the 22 tox's who tested his simulator solution, my understanding is 23 she is no longer available, she's not here. Under Lidle v. 24 Department of Licensing, I think it's a clear basis for 25 dismissal. 8 1 MS. WEST: Again, I'm going to deny the motion. 2 It's another issue that you need to raise with Ms. Lange in 3 his particular case. I believe we have Ms. Long listed as 4 testifying tomorrow morning by telephone conference, I 5 believe. 6 MR. VOSK: Oh, do we? Then it's my 7 misunderstanding. I was looking at the materials that I 8 got, and I didn't think she was. Then I'll withdraw that if 9 she is going to be here. I would actually -- my next motion 10 would be that these hearings simply be cancelled. I'm not 11 sure where the statutory authority to hold these hearings 12 has come from. I've been denied -- again, I've been denied 13 the witnesses that I've tried to subpoena, including Mr. 14 Logan and Ann Marie Gordon, both. I think -- I don't think 15 that these hearings are sanctioned by law. I think that by 16 going forward with them, we're going forward in violation of 17 law at this point. 18 MS. WEST: It's my understanding that the 19 hearing examiner in each individual matter may subpoena 20 witnesses to clarify the record. I think questioning the 21 individuals, the analysts, about the solutions that are in 22 question, is appropriate. We'll go forward with the fact 23 finding, and then again, each individual hearing examiner 24 can only make their decision based upon the evidence that's 25 presented in each individual hearing. 9 1 MR. VOSK: Okay. I guess the other basis for my 2 motion is that, in these hearings, Ann Lange has already 3 ruled four times on the record. And I can call Mr. 4 Velasquez to testify that toxicologists are not experts in 5 breath testing. Having ruled that way four times 6 affirmatively on the record, to my surprise, I'm not sure of 7 the basis for calling anybody to testify with respect to the 8 breath tests. If they're not experts, they're not experts. 9 MS. WEST: It's my understanding that the basis 10 for the fact finding session was to determine the 11 narrowly-defined issue that the Department of Licensing has 12 on the validity of the breath test. So we'll go forward 13 with the questioning of the preparation of the solutions. 14 MR. VOSK: And I think that's all I wanted to do 15 preliminarily. 16 MS. WEST: Okay. Well, let's keep in mind the 17 narrow issue that the Department of Licensing has in the 18 cases. And if we get too far off base, I'll let you know. 19 And we'll go forward. 20 MR. VOSK: Okay. 21 MS. WEST: Okay. 22 So the first witness we have -- 23 MR. VOSK: Can I have just a minute? I've just 24 been handed something that I didn't receive before today. 25 So can I have one minute before we start, just to read this? 10 1 MS. WEST: Sure. Uh-hum (affirmative). 2 So our first witness is Jane Thatcher, correct? 3 MS. WEST: Jane Thatcher, correct. 4 5 JANE THATCHER, having been called as a Witness, was duly 6 sworn by the Hearing Examiner and testified as follows: 7 8 EXAMINATION 9 BY MS. WEST: 10 Q. As we discussed preliminarily, we're going to advise 11 you that if you wish not to answer a question, you may not. 12 You may wish to state, "I won't answer the question." Okay? 13 A. Uh-hum (affirmative). 14 MR. VOSK: And your Honor, real quick, I don't 15 believe we received a copy of the subpoena for, is it, I'm 16 sorry, Thatcher? 17 THE WITNESS: Jane Thatcher. Clarkson was the 18 name I had in the past, though. 19 MR. VOSK: You had a different name? 20 THE WITNESS: Yes. 21 MR. VOSK: Is that subpoena in here? 22 MR. ESPANA: It should be. Here's a copy. 23 MR. VOSK: Thank you, your Honor. 24 MS. WEST: It's "Ms. West." 25 MR. VOSK: I don't have that. That hasn't been 11 1 provided to me. So I guess at this point, I would object 2 to -- I've got the fax that was sent to me dated September 3 5th from Ms. Lange. And in that, she has not given me any 4 notice of this witness. I don't have a subpoena for this 5 witness, and I haven't prepared for this witness. I 6 would -- at this point I would move simply to have her 7 excluded. I'm even reading an e-mail here, and it indicates 8 that -- and it's from Dr. Logan, analyst who he's received 9 subpoenas from as of August 23rd, have little asterisks by 10 their names, and Ms. Thatcher's name is not one of those 11 that has been asterisked. So with that in mind -- 12 MS. WEST: Okay. We'll move forward. 13 Q. Ms. Thatcher, please state your name and spell your 14 last name for the record. 15 A. Jane Thatcher, T-H-A-T-C-H-E-R. 16 Q. We have a copy of your curriculum vitae, and that's 17 also been provided to you. 18 When did you prepare the curriculum vitae? 19 A. I honestly don't know. It is an outdated one. At 20 the bottom of the page it says it was revised on May 9th of 21 20005. 22 Q. Are there any changes that need to be made? 23 A. I did become the quality assurance manager, that's 24 not on here. And then I became a Forensic Toxicologist 4, 25 and I'm also a graduate student full time. And I have other 12 1 professional memberships. I'm sure I've done other courses 2 in training. I've done other publications since then. 3 Q. Where are you employed? 4 A. I have part-time employment here at the Washington 5 State Toxicology Lab. And I'm also a graduate student at 6 the University of Washington. So I do receive a grant 7 stipend, and that's my full-time job, I guess you could call 8 it. 9 MR. VOSK: Your Honor, at this point I'm just 10 going to raise an objection, I think, that the information 11 being introduced now is information that's necessary for the 12 Department to develop in order to sustain the suspension of 13 these individuals. Because of that, I believe it would be 14 appropriate for an Attorney General or a prosecutor to raise 15 such questions. I think for a hearing examiner that's 16 supposed to be a neutral judge, to begin developing evidence 17 on behalf of the Department of Licensing is a violation of 18 due process. And for that reason I would object to any of 19 these questions. 20 MS. WEST: I understand. We're still going to 21 move forward. 22 Q. Ms. Thatcher, which solutions have you either tested 23 or prepared? 24 A. I honestly don't know the answer to that. 25 Q. Okay. The information in front of you, which is the 13 1 certification page -- 2 A. Yes. 3 Q. -- does your name appear on that certification page? 4 A. Yes, it does. 5 MR. VOSK: Your Honor, which certification? 6 BY MS. WEST: 7 Q. Is there a solution number on the certification page? 8 A. Yes. So I was involved in the testing of batch 9 07007. 10 Q. Okay. And how do you test solutions? 11 A. We use Headspace gastromatography, which is 12 state-of-the-art; it allows us to quantitate substances. We 13 test each solution, each analyst tests it five times, along 14 with a control sample. And the instrument is calibrated 15 before that, as outlined in our SLP. 16 Q. And what occurred when you tested this particular 17 solution, the 7007? 18 A. So I would have tested the sample five times. I'm 19 Analyst No. 15, so those are my results in the Analyst 15 20 column. And my control results are there as well. And so I 21 would have generated the results; I would have taken those 22 chromatograms, entered those values into our database, and 23 then filed the original chromatogram. 24 Q. Did you sign the top sheet? 25 A. Are we talking about this sheet (indicating)? 14 1 Q. The certification. 2 A. Yes, I did. 3 MS. WEST: Do you have any questions? 4 MR. ESPANA: Yeah. 5 6 EXAMINATION 7 BY MR. ESPANA: 8 Q. Now, on this certification sheet, Ms. Thatcher, you 9 test five samples. You have a blank, I would guess, to test 10 these against. 11 What blanks do you use and what controls do you 12 use in doing this test? 13 A. They're -- I'd have to look in the SLP to see where 14 our source is. But there are aliquots of controls that, 15 they're commercially available that we purchase. That's our 16 control. And then our blank is water, deionized water. 17 Q. Of your stock you take the aliquots from, how long 18 does that stock last? What's the shelf life of that stock? 19 A. I haven't been doing similar solutions lately. I 20 would want to check the SLP. 21 Q. Okay. All right. 22 So now, when samples are received from the field, 23 is there a sequence number that's assigned to each sample? 24 A. "Samples," being biological samples? 25 Q. Yeah. A sample from a subject is received in the 15 1 toxicology lab that you're going to run these standards 2 against. 3 So is there a lot number or some sort of stock 4 number or an ID number that's attached to that that you're 5 familiar with? 6 A. I'm a little confused by your question. When you say 7 "standards," are you talking about the solutions we prepare 8 here? 9 Q. Not the solutions you prepare here. When you receive 10 a sample from a subject, the police get a sample, or the 11 phlebotomist gets a sample or whoever gets the sample, and 12 they get the sample -- and I guess I'm talking about -- so 13 I'm going to strike that, because I think I'm talking about 14 blood samples. So strike that. 15 Now, how often is the chromatograph, actually 16 itself, how often is it calibrated? 17 A. Well, the calibration is good for 24 hours. 18 Q. 24 hours? 19 A. Correct. 20 Q. And so it has to be calibrated every 24 hours or 21 within 24 hours? 22 A. Correct. 23 Q. And do you do that calibration or does somebody else 24 do that calibration? 25 A. On this particular day, I don't know how it was done. 16 1 I'd have to go back and look. 2 Q. Sure. 3 A. What I typically would do is I would run my 4 calibration, and then back when I was doing samples, I would 5 run my samples, and I would run this all together, or I 6 think sequence back then, I think we only had 42 vials. Now 7 we can accommodate more vials. So sometimes you'd have to 8 break your sequence up. But I would typically run them 9 together. 10 Q. And if you had done the calibration run, would you 11 have logged it into a logbook somewhere that you signed 12 somewhere that you had calibrated the chromatograph? 13 A. No. Because what happens is those calibrations, they 14 get printed off, and then you put that into your file. So 15 most of the analysts, when we do our cases, they'd go into 16 the first case file of the day, and that's where they would 17 be stored. 18 Q. Okay. Very good. All right. 19 So going back to the certification sheet on this 20 one here, Analyst 15, the sixth line there, that's a control 21 that was run against these samples that you ran; is that 22 correct? 23 A. We're talking about that table up top, yes. The one 24 that says "control," is our control number. 25 Q. That's an alcohol standard? 17 1 A. Yes. 2 Q. So that's ethanol? 3 A. Ethanol. 4 Q. And that's part of the stock solution that we talked 5 about before, that control? 6 A. It's a control, right. So we receive it; it's 7 commercially available. And we aliquot it into smaller, 8 because it is a volatile, we don't want to lose it. 9 Q. So you have to store it at a certain temperature and 10 all of those controlled environments? 11 A. We do keep in the refrigerator. We do bring it to 12 room temperature before we analyze. 13 Q. You do warm it up to room temperature? 14 A. Uh-hum (affirmative). 15 MR. ESPANA: I don't believe I have any further 16 questions. 17 MS. WEST: I guess I have just a few more 18 questions. 19 20 EXAMINATION (Continuing) 21 BY MS. WEST: 22 Q. Can you give us the correct terminology on this cover 23 sheet or on this cover certification? 24 A. I usually hear it referred to as the worksheet. 25 Q. Worksheet? 18 1 A. Yeah. What the official title is, I'm not sure. 2 Q. Thank you. 3 MS. WEST: Mr. Vosk, do you have any questions? 4 MR. VOSK: A few. 5 6 EXAMINATION 7 BY MR. VOSK: 8 Q. Have you received any kind of instruction, training, 9 guidance, anything whatsoever as to your testimony today? 10 A. No. We received a letter, I think it must have been 11 your original request, or something like that. There was an 12 e-mail with that. But no training. 13 Q. An e-mail. I'm not certain what e-mail we're 14 talking -- can you just describe what the e-mail said? 15 Because I don't recall sending an e-mail. 16 A. It was an attachment. I think it was three pages. I 17 just briefly glanced over it. It was a request for 18 information. I'm sorry, I don't have it with me. 19 MR. VOSK: Your Honor, could we just -- with 20 respect to that, could we just -- would your Honor -- and I 21 say "order" only because we have to do everything as an 22 order -- could we just get an order to have those materials 23 produced so I know what she got to look at in order to 24 prepare? It may be completely innocent. 25 MS. WEST: Uh-hum (affirmative). 19 1 MR. VOSK: Is that a "yes," then? 2 MS. WEST: Yes. Let's have her produce the 3 e-mail. 4 MS. INGLIS: Do you maybe want to show her Ms. 5 Lange's letter and ask her if that's it? You don't have to. 6 MR. VOSK: Oh, no, that's fine. If that's what 7 she's talking about, yeah. 8 MS. WEST: Do you have a copy of Ms. Lange's 9 letter? 10 MR. ESPANA: I'm not sure. 11 BY MR. VOSK: 12 Q. Is this (indicating) what you're talking about? 13 A. Yes, that is. 14 Q. And did you read through this? 15 A. Somebody printed it off for me about five minutes 16 before I came down here. So I just glanced over it briefly. 17 Q. Who printed that off for you? 18 A. Melissa Pemberton. 19 Q. Did you ask her to print it for you? 20 A. Yes. 21 Q. And why did you ask her to print that off for you? 22 A. Because I knew I was going to be coming down here and 23 I thought I should glance over it to see what I was going to 24 be doing. 25 Q. As you read through this -- is this the first time 20 1 you've heard of what Ms. Gordon's been accused of? 2 A. No, it's not. 3 Q. And when you read through this, did you read the last 4 page of this? And I'll pass it over so you can take a look. 5 Did you read the last page where Ms. Lange speaks 6 about a lecture given by Mr. Logan? 7 A. I actually had not read that part. 8 Q. Okay. Then, please don't. 9 Now, have you had -- other than that, have you 10 had any communications with anybody at the Department of 11 Licensing about these hearings? 12 A. No, I have not. 13 Q. About the Ann Marie Gordon situation? 14 A. No. 15 Q. Do you take an oath as part of becoming an employee 16 of the Washington State Patrol? 17 A. I don't recall taking one. 18 Q. You go through pre-employment screening, correct? 19 A. Correct. 20 Q. And do you go through polygraph examination at that 21 time? 22 A. I did. 23 Q. And are you asked if you've ever committed a crime? 24 A. I don't recall if it was the exact question. But 25 that seems like it would be within the scope of what they 21 1 ask. 2 Q. Would you be precluded from employment as a 3 toxicologist with the WSP if you had ever committed a crime? 4 A. I don't know. I heard them saying that they were 5 looking for honest people, realizing people had made 6 mistakes, but they just wanted to get honest answers from 7 us. Other than that, I don't know. 8 Q. And if you commit a crime while in the employ of WSP, 9 would that preclude you from further employment? 10 A. I don't know. 11 Q. Do you think it's appropriate for someone working in 12 the tox lab to commit a crime? 13 A. I don't know how to answer that. It would depend on 14 the nature of it, if they were found guilty. 15 Q. Well, I'm not talking about whether or not they've 16 been found guilty. I'm saying in the abstract, if someone 17 has committed a crime, would it be appropriate for a law 18 enforcement officer, who is in charge of preparing simulator 19 solutions for statewide use, would it be appropriate for 20 such an individual to be engaging in criminal activity? 21 A. No. 22 Q. Would it be appropriate for somebody work in the tox 23 lab to be using illicit drugs? 24 A. That would be inappropriate. 25 Q. I'm sorry? 22 1 A. That would be inappropriate. 2 Q. Would you be precluded from employment in the tox lab 3 if it was discovered you were doing illicit drugs? 4 A. I don't know what the policies are. 5 Q. Okay. 6 A. I would hope so. 7 Q. How many breath tests have you ever administered? 8 A. Have I administered? 9 Q. Yeah. 10 A. I don't administer breath tests as part of my duties 11 here. 12 Q. Now, you understand that what Ms. Gordon has been 13 alleged as having done at this point is committing perjury, 14 correct? 15 A. Correct. 16 Q. And you know that involves lying? 17 A. Yes. 18 Q. If the allegations are true, then, do you believe 19 that what Ann Marie Gordon did was wrong? 20 A. Yes. 21 Q. Do you know of anybody else in the lab who engaged in 22 similar conduct? 23 A. Had them tested for themselves, or they tested Ann 24 Marie's? 25 Q. I guess that's kind of a vague question. 23 1 Do you know -- I'm going to get back to that one. 2 I'll develop it a little bit better so you can answer it 3 easier. Let's talk about the solution protocol. 4 The commercially-prepared solutions, where do 5 those come from? 6 A. I don't order those. I would want to check to see if 7 it's in the SLP. 8 Q. Do you know off the top of your head, is it NIST? 9 And if you don't know, that's fine. 10 A. I don't want to tell you bad information. So -- 11 Q. That's just fine. 12 MR. VOSK: Have we provided her with the 13 protocols yet, for testing the solution? 14 MS. WEST: Yes. 15 MR. VOSK: Do you have those protocols in front 16 of you? 17 A. Yes. 18 Q. Take a look at the 2005. 19 Now, I guess the first thing I'd like for you to 20 do is, when we get down to the certification part -- not the 21 preparation, but you talked a little bit about the 22 certification part -- can you just walk us through that in 23 detail, what you do when you're certifying one of these? 24 A. So you want me to address each number? 25 Q. Yeah. And explain what it means, what you do 24 1 pursuant to that. 2 A. An individual with a valid Blood Analyst Permit 3 authorized by a State Toxicologist, analyzes five separate 4 aliquots of the simulator solution by Headspace gas 5 chromatography -- that's what I mentioned earlier; you're 6 taking that solution that was prepared by the lab, the 7 simulator solution, you're testing it five times. 8 We have a Blood Analyst Permit, it's a little 9 card that was given to us by Dr. Logan, and we're analyzing 10 the sample as basic gas chromatography is the method that 11 we're using to analyze the samples. 12 Q. Before you move on to the second step, how long does 13 that step take? 14 A. That's a difficult question to answer, because you're 15 going to aliquot out your samples, and you're diluting them 16 how it's outlined in our procedures. It depends on if 17 you're just doing your calibration and your simulator 18 solution, or if you're running blood samples with it as 19 well, because obviously that's going to take some more time 20 to do everything. Those we run in duplicate, if you're 21 running that. So that could take up to maybe an hour or 22 two. 23 And then you're going to set up your sequence on 24 the Headspace instrument; you're going to enter the 25 sequence, and then those samples, the run time I believe is 25 1 2.2 minutes. But it goes into the instrument and it has to 2 heat the sample up. So it's not just two minutes per 3 sample. It's going to depend on how long your sequence is, 4 how long it takes to run as well. 5 Q. Okay. So let me know if I'm not understanding what 6 you're telling me, then. 7 A. If you're doing blood samples along with it, it's 8 going to take an hour or two. 9 A. Okay. 10 Q. Is that what you're telling me? 11 A. To dilute them out. 12 Q. Okay. Let's assume that all we're talking about is 13 just the simulator solution right now, there's nothing else 14 going on. About how long would the process is? 15 A. It's going to depend on if you're running your 16 calibration, or if it's already been run and you're just 17 doing your samples. You have your diluter sample, you put 18 it in, you suck up some sample, you put it into the vial, 19 you're going to crimp it down, the top. And that's the 20 process. 21 Q. Well, does that mean -- well, don't you always do the 22 control at the same time you do the other five? 23 A. Right. So you have to do each in file separately. 24 Q. Okay. So I guess what I'm trying to understand is, 25 you had made a distinction, and I'm sure it's my ignorance 26 1 that's getting me caught here, so please be patient. 2 With respect to the amount of time it takes to do 3 this, you said that it depends on whether you're doing your 4 control or you're doing your five aliquots? 5 A. Per sample, we'll just say it takes approximately 30 6 seconds to a minute per sample to grab your vial, take the 7 lid off, transfer, crimp. So approximately 30 seconds to a 8 minute per sample. 9 Q. So then altogether, going through this run, no blood 10 test, how long is it going to take, 15 minutes, 20 minutes? 11 Just an approximate. 12 A. What are we running? What is my sequence I have? 13 Q. Well, the sequence that you're supposed to be running 14 pursuant to step No. 1, which based on the answer you just 15 gave, I'm assuming you're also going to include your control 16 along with? 17 A. Right. So what I used to do is, I would do my 18 calibration, and I would have my volatiles and my blanks, I 19 would be about 13 samples. And then I would run my five 20 samples, a control, and you have a blank. So that's another 21 what, 5, 6, 7 samples. So you have approximately 20 22 samples. We said what, it took about 30 seconds to a minute 23 per sample. We're only required, for these, to do them in 24 single; we don't have to do them in duplicate. So maybe 20 25 minutes. 27 1 And then you unload your sequence up and then 2 they're going to have a run time. So there's that initial 3 startup time of the instrument and the heating that takes 4 place. And then about two-and-a-half minutes per sample is 5 the run time. 6 Q. Okay. So then, just so I can try to make it simple 7 for the record, so we're saying about 20, 25 minutes? 8 A. To get your samples prepared. And then maybe another 9 half hour or so for them to run. 10 Q. Okay. So closer to an hour altogether, 50 minutes? 11 A. Somewhere around there. 12 Q. So when you do that, when you -- you talked about 13 doing 20. When you sit down to do these five, then, for 14 0707 here, where are the other 15 coming from, are those 15 from other batches? 16 A. If I'm doing my full calibration, including my 17 volatile calibration and all that. If I just came in, if 18 somebody had just finished their sequence and they had just 19 done a calibration, I could come along and I could do my 20 seven samples, and that would take less time, obviously. 21 Q. So that would then take approximately a half hour 22 based on what you testified to? 23 A. I did this one, and I hadn't done them for awhile. 24 So I haven't been doing this on a regular basis. 25 Q. When you don't know, it's fine to say you don't know. 28 1 A. It would take approximately a half an hour to an 2 hour, would be my best estimate. 3 Q. Okay. I think I've beaten that one to death. 4 Can you take a look at the second step? You 5 don't need to read it because we've already got it in the 6 record, but just tell me what's involved there. 7 A. So this is where we're putting our numbers into the 8 database, and entering the control number. 9 Q. And how do you go about -- how do the numbers get in? 10 Is this the database right here that you're talking about -- 11 A. Right. 12 Q. -- right here on the worksheet. 13 Q. How do they get entered in there? 14 A. You just go over to a computer, you open up the file 15 maker system they use, and you manually type in their 16 numbers. Because each sample will print out a piece of 17 paper, and it's called a chromatogram. And it has the 18 results of the testing. So you just enter the number that's 19 on that sheet into the database. 20 Q. And so the numbers on the worksheet aren't 21 necessarily the numbers that are being spit out by the 22 chromatogram; they're the numbers that a toxicologist is 23 entering themselves. 24 A. Correct. 25 Q. And if they do their job correctly, they're using the 29 1 same numbers on the chromatograph? 2 A. Correct. 3 Q. Now, when you enter that, do you sign your name to 4 the worksheet at the same time you enter your data in, or do 5 you do that at a later time? 6 A. No, you don't. So in this case, Sarah would have 7 been the first person. She generated the batch and she 8 entered her numbers. And the next person comes along, and 9 they're entering those in. And once everybody that's 10 available tests that batch, then someone will print it out 11 and it will get passed around the office to sign off on. 12 Q. Okay. So the names and the dates, then, pop up at 13 the time you enter your data, but there's no signature? Or 14 when did the name and the dates end up on that worksheet? 15 A. The dates will be the date that you test them and 16 enter them. The signature will be after everybody has 17 tested the sample, it will get passed around. 18 Q. Okay. Now, do you have to enter any kind of an ID 19 number into -- your worksheet is on a computer, correct? 20 A. Correct. 21 Q. And do you have to enter any kind of an ID number in 22 order to access the computer, the worksheet? 23 A. It is a password-protected system. But it's not a 24 unique password. 25 Q. It's not unique? 30 1 A. No. We don't each have our own code, if that's what 2 you're asking. 3 Q. So a person could get in, enter some numbers here, 4 and put somebody else's name down on the line, not their 5 own? 6 A. That is possible. 7 Q. Have you ever seen anybody do that? 8 A. I've never seen anybody do it, no. 9 Q. Since you haven't seen it, I'll assume you haven't 10 done it. 11 A. Correct. 12 Q. Have you ever had anybody do it for you? 13 A. No. 14 Q. No. 3 is pretty clear. A minimum of three analysts. 15 Why do we have a minimum -- and I'm sorry, I'm going back to 16 the protocol -- why do we have a minimum of three analysts? 17 A. That's what's required. That was in place before I 18 came. 19 Q. Okay. Do you know of any scientific reason why we 20 have to have a minimum of three? 21 A. I do not. 22 Q. You said that you are in grad school right now, 23 right? 24 A. Correct. 25 Q. Where are you going to grad school? 31 1 A. University of Washington. 2 Q. And what program are you in? 3 A. Department of Pharmaceutics. 4 Q. Now, you guys do lab work over there, right? 5 A. Correct. 6 Q. There's uncertainty involved with any type of 7 measurement, correct? 8 A. Correct. 9 Q. And we get a better measure of that uncertainty the 10 more measurements we make; is that correct? 11 A. Yes. To some extent. But eventually you're going to 12 reach a point where you've got it narrowed down pretty well. 13 Q. Certainly. So we might say one is too few, but 20 is 14 excessive? 15 A. It would depend. 16 Q. Right. But that's something we might say. 17 A. Correct. 18 Q. And so in this case, do you think the minimum number 19 of analysts being specified, without at this point stating 20 an opinion on whether or not three is the appropriate 21 number, do you think the minimum analysts being required is 22 put in place to help ensure the accuracy of the 23 measurements, to cut down on any kind of spurious readings, 24 to quantify your uncertainty, your standard deviation, 25 things of that nature? 32 1 A. I'll agree with that. 2 Q. Okay. Now, the next one -- well, let me go back to 3 that for just one second. 4 If we're going to calculate the variation, the 5 variance in our measurements here, at some point, like you 6 said, we can get so many that we're getting ridiculous. 7 What do you think the minimum number of 8 measurements, or the minimum number of data sets, we need is 9 in order adequately quantify the variation in our samples, 10 scientifically speaking? 11 A. I would need to do a statistical analysis on that. 12 Off the top of my head, I don't know. Certainly, 3, 4, this 13 is sufficient. Because you have 15 results. And there's 14 not much variability. 15 Q. So you think three is sufficient? 16 A. Yes. Definitely. 17 Q. What about two? 18 A. I'm just going to go with the three that was 19 selected. I'm going to assume it's based on good scientific 20 reasoning. 21 Q. You don't have an opinion on whether or not two would 22 be? 23 A. I don't have an opinion. 24 Q. Okay. Now, if we take a look at the next line. It 25 then says -- well, let me go back to that one again. It 33 1 says a minimum of 3. We can do as many as we want, right? 2 A. Correct. 3 Q. And a reason might be to ensure the accuracy, make 4 sure we understand how much variance we have in our 5 solution, correct? 6 A. Could be. 7 Q. And so would that be the reason we may have 12 to 16 8 people doing this instead of just three? 9 A. Honestly, my understanding of the reason, or what I 10 would guess the reason is, is so that we have adequate 11 numbers of analysts available for court, so if that batch 12 goes out to multiple places and those three toxicologists 13 have to be on vacation or unavailable, this way we have -- 14 anybody can go to court on that issue. 15 Q. So for purposes of testimony, testifying? 16 A. That's one of the reasons. 17 Q. So I guess that helps explain -- and I'm going to 18 No. 4 now -- it says: "The average results from all of the 19 analysts are computed." 20 A. Correct. 21 Q. So that requires that the results of each of the data 22 sets run by each of the analysts, they all have to be 23 included? 24 A. Yes, they should be. 25 Q. And the reason they have to is because those people 34 1 have to go into court and testify. 2 A. Correct. 3 Q. And if their numbers aren't included in the 4 statistics printed out on top, then they really don't have a 5 basis to testify, do they? 6 A. I personally think they do. Because they can look 7 and see, these were the numbers, this solution worked, it 8 met our requirements. But it's always been our policy to, 9 if you tested the batch, then you can so testify. 10 Q. Sure. I guess what I'm saying is, if the statistics 11 are giving us certain numbers, and, for instance, on 07008, 12 Ms. Pemberton is the last one to sign there, and she's going 13 to go in and testify, her testimony is based on the fact 14 that, at least under the protocol, her data has been 15 included in these statistics? 16 A. Scientifically, we're looking at, there were three 17 people that tested it. Our numbers -- I mean, just looking 18 at this sheet, it's very clear that it does meet the 19 requirement; it quantitated accurately. That's what you're 20 basing your testimony on, and that it did meet all the 21 requirements. 22 Q. And I think we're going to the same place. You said 23 "if calculated accurately." 24 A. Uh-hum (affirmative). 25 Q. So for instance, when Ms. Pemberton goes in and she 35 1 looks at these numbers, again she's assuming that the 2 software has included her Analysis 16, and that these are 3 accurate numbers based on everything here? 4 A. That's what our assumption is, yes. 5 Q. And so her testimony is based on the fact that her 6 data is included in this set? 7 A. That's what we would assume. But our testimony is 8 based on looking at these numbers; there's a lot of results 9 that confirm that it's at the right spot. 10 Q. Sure. Now, why, on the -- have you ever done, 11 certified, a QAP solution? 12 A. Yes, I have. 13 Q. And on QAP solutions, there are only three 14 toxicologists, three analysts that sign off instead of the 15 full host of 16. 16 A. That is correct. 17 Q. And why is that? 18 A. That's the minimum required. 19 Q. And you don't expect that you're going to have as 20 much testimony on the QAP. Is that a reasonable assumption? 21 A. Yes. 22 Q. Now -- let me take a look, only because -- you've 23 reviewed -- have you reviewed the 2005 protocol before 24 today? 25 A. I believe -- I should have. 36 1 Q. And only because I'm not good at reading signatures, 2 are any of those signatures down there on Page 4 of 4, are 3 any of those yours? It looks like you were in the lab at 4 that time, but I can't tell. 5 A. I would have been in the lab. You're right, I don't 6 see my signature. I didn't sign off on this particular SLP. 7 Q. Okay. Do you think that that means you're any less 8 bound by it? 9 A. No, I don't. That's still something that, if I'm 10 doing the testing that relates to it, I should still be 11 aware of it. 12 Q. And actually, just to make sure we each have the same 13 one, I was looking at the 2004. The signature page for the 14 2005 is on Page 4 of 5. Do we have the same one? 15 A. It's page 4 of 5, and page 5 of 5. 16 Q. Okay. Very good. 17 Now, right above the signatures, on Page 4 of 5, 18 it does indicate that any -- and I'll just read it -- it 19 does indicate that "any deviations from the procedure must 20 be documented in writing and approved by the laboratory 21 manager and/or the State Toxicologist." Is that correct? 22 A. That is correct. 23 Q. And so you are bound by that? 24 A. Yes, I am. 25 Q. Now, if you can take a look at the worksheet for 37 1 07007. Is there attached to it a declaration by you? 2 A. It's not attached. But yes, I do have that document 3 in front of me. 4 Q. You have that? Okay. Let me find your -- 5 When you signed that -- I'm going to -- when you 6 signed that, you are more or less looking at the numbers 7 printed out by the computer in the statistics section; is 8 that correct? 9 THE WITNESS: Could you repeat the question. 10 MR. VOSK: Yeah, that was horribly phrased. 11 What do you look at before you sign this 12 declaration, in making the declaration? What do you make it 13 based upon? 14 A. The lot number of the simulator solution. 15 Q. And when you make the claim that it was bound to 16 conform to the standards established, are you looking at the 17 results here in the statistics section, the ones that show 18 the concentration, the standard deviation, the precision, 19 the range, those things that are indicated in the protocol? 20 A. Typically what happens is we'll sign the worksheet 21 before. And then this is generated at a later date -- 22 Q. Okay. 23 A. -- and provided to us. So I would have signed off on 24 this. I would have glanced over it to make sure the numbers 25 looked okay, signed it. And then this would have come to my 38 1 desk later, and I would have signed off on this. 2 Q. Okay. Now, when you're signing the signature page, 3 the worksheet, you're just signing off on what you did. 4 You're just signing off on your single data set, I did this 5 on this date. 6 A. Correct. 7 Q. When you sign this declaration, though, you're saying 8 that the solution was found to conform to the standards 9 established by the State Toxicologist for the certification 10 of the simulator solution, correct? 11 A. Correct. Well, when I sign this, I'm making sure 12 that the numbers look accurate, and that this is a valid 13 result. And then I'm signing this at a later date. 14 Q. And I understand that. I guess what I'm trying to do 15 is distinguish between the two signtures. Because this one 16 here, you're talking about your personal run. But on your 17 declaration, you seem to be talking about compliance with 18 the standards established by the State Toxicologists, which 19 include a minimum of three people, and the average, or the 20 inclusion and the calculation of everybody who did it. 21 So in your declaration, you're making a broader 22 claim than you are on the signature page of the worksheet, 23 correct? 24 A. I've never thought that deep into it and made the 25 distinction between the two. I've just -- I always assume 39 1 that they're kind of the same. 2 Q. So then when you sign this, are you not saying 3 that -- well, why don't you tell me what you are saying when 4 you sign the declaration. What's your understanding of it? 5 A. Just exactly what it says, that I do meet the 6 requirements; that I have the degree that I have; and that 7 this solution I tested over here and signed off on, is valid 8 and it meets our requirements. When I'm signing this, my 9 signature here kind of means the same thing, to me 10 personally, as it does here (indicating). 11 Q. So are you saying that the solution meets the 12 requirements, or my single test, my single data set, was 13 what I expected -- not what I expected -- but what would be 14 expected from a single data set? Are you talking about the 15 solution, or just your run? 16 A. I've never received training saying exactly what that 17 signature means. But for me personally, it's just always 18 been that my run is good, and that this looks like a good 19 batch. 20 Q. And so with your declaration, all you mean is your 21 particular run is good? 22 A. Which one are you referring to as my declaration? 23 Q. The declaration. Not the signature page on the 24 worksheet, the one you signed under penalty of perjury. 25 A. And what's your question? 40 1 Q. All you mean when you sign this is just that your 2 single data set was good. 3 A. No. I'm saying that I found it exactly as it says. 4 Q. So then there is a distinction between the signature 5 on the signature page, on the worksheet, and your signature 6 here on the declaration, "the worksheet" meaning, I did my 7 run, it was on this date, and then "this declaration" 8 meaning, yes, I did my run, but as I examined it, the 9 solution also met the standards set forth by the 10 toxicologists. 11 A. Correct. 12 Q. So that's a broader claim than just the signature on 13 the worksheet. 14 A. You could interpret it that way. 15 Q. Would you interpret it that way? 16 A. The way that I have always felt -- the way that I've 17 done it, is that here I'm saying my numbers are good. And 18 it looks good. So I kind of view my signature here maybe as 19 more broad than I should. And then yes, here I'm saying 20 that yes, everything looked good; my run and the rest of the 21 run. 22 Q. Okay. Now, when you look at those numbers, when you 23 make that decision, I'm going to assume you probably glance 24 at the rest of the table there in the worksheet? 25 A. Correct. When I'm signing the worksheet. Because 41 1 when I get this, I'm not receiving the worksheet. So when I 2 sign this, this is kind of my opportunity to look over 3 everything, unless I want to pull up the database when I 4 sign this and compare it to this (indicating). 5 Q. So when you sign your declaration -- and I'm sorry if 6 it's repetitive, I just want to make it clear for the record 7 -- when you sign your declaration, then you don't have the 8 worksheet in front of you? 9 A. Typically, no. 10 Q. Okay. Now, in this case, you were the 15th to run 11 it. I'll assume that other times you may have been higher 12 up on the list, could have been anywhere on the list. 13 A. Correct. 14 Q. And so by the time you get in to sign, though, all 16 15 are on there. 16 A. Correct. 17 Q. And so you glance over the table. Do you take a look 18 at the statistics and make sure the statistics are within 19 the bounds set by the protocol? 20 A. Correct. It's been awhile since I looked at it, so I 21 don't remember the exact change. But yes, I do. 22 Q. Okay. And the statistics are pretty important, 23 right? 24 A. Yes. 25 Q. Because they are -- they give you the numbers you 42 1 need to know in order to comply with Step 5 in the 2 certification, don't they? 3 A. Yes, they do. 4 Q. And I guess Step 6 as well. And so without those 5 numbers, you can't sign -- at the very least, you can't sign 6 the declaration. 7 A. Correct. 8 Q. Did you ever go back through and check the numbers by 9 hand? 10 A. Did I do the math on these? 11 Q. Yeah. 12 A. No, I didn't. 13 Q. You always just accepted what the computer gave you? 14 A. Yeah. 15 Q. Do you know how to do the math? 16 A. Yeah. 17 Q. Could you calculate the standard deviation? 18 A. I would use Excel. That's typically how I -- because 19 I've had to calculate for other things. But I would use the 20 program. 21 Q. I didn't mean to insinuate you couldn't calculate. 22 A. I understand. 23 Q. So I guess the point of that is you go ahead and sign 24 the declaration without double-checking the computer's 25 numbers? 43 1 A. Correct. 2 Q. Now, how do the certifications -- and when I say 3 "certifications," I'm going to mean both the worksheet and 4 the declarations -- how do those end up getting posted on 5 the tox lab or on the WSP web site? 6 A. That, I don't know. 7 Q. Have you ever visited the web site to see what's up 8 there? 9 A. I have. 10 Q. And you've seen the declarations that are included? 11 A. I probably have. I can't recall a specific instance. 12 Q. Okay. Did Ann Marie Gordon ever, in training or at 13 any other time, indicate that people were allowed to sign a 14 signature page, sign a worksheet for somebody else? 15 A. No. 16 Q. Do you believe it would be okay for somebody to sign 17 the worksheet for somebody else? 18 A. Probably not. I mean, the results are the same. 19 Scientifically, it doesn't make a difference. The results 20 are the results. 21 Q. Let me ask you a question about that. 22 A. But it's our policy not to. 23 Q. Let me ask you a question about that. Because you 24 said you enter -- you enter the data in on one day. 25 A. Correct. 44 1 Q. And you don't get around to signing it until sometime 2 much later, when the thing is being passed around? 3 A. Correct. 4 Q. Now, let's say you and I are working in the lab, and 5 you say, Ted, I'm going to be out of town, can you sign off 6 for me? I haven't necessarily seen the numbers, your raw 7 data, that you entered in, have I? 8 A. Well, did you enter in the numbers yourself? 9 Q. No. You're asking me to sign for you. 10 A. Have I already -- I'm not aware of that ever 11 happening. 12 Q. I understand. I understand you're not aware. But 13 were you aware of what Ann Marie Gordon was doing before 14 we've revealed it recently? 15 A. Not before it was revealed, no. 16 Q. So you'll agree there may be things going on in the 17 lab that you're not aware of. 18 A. I agree. 19 Q. Now, let me make the question clearer: You run your 20 tests. You take your chromatograph, or your whatever, 21 that's what it's called -- 22 A. Chromatograph, correct. 23 Q. -- enter in your numbers. You know the sheet is 24 going to come around, or the sheet is being passed around, 25 and you've got to run for some reason, something personal 45 1 came up. I'm not saying you've ever done this, but you turn 2 to me and you say, "Hey, Ted, can you sign off for me?" And 3 you take off out of the lab. 4 Now, if I sign it without going back to take a 5 look at your raw data, how do I know that your numbers are 6 accurate if I sign off for you here? Without going back to 7 look at your raw data, how do I know what you enter is 8 accurate? 9 A. I wouldn't put myself in that situation. 10 Q. And I think that that's smart. But let's assume for 11 the moment you didn't have the judgment you obviously do, 12 and you did ask me to. How would I know that the data 13 entered was accurate? 14 A. So you could certainly check the file folder. 15 Q. Right. But if I didn't. If I didn't check the file 16 folder, how would I know that the data you entered was 17 accurate? 18 A. You wouldn't know with certainty. 19 Q. So then when you said earlier that it doesn't make a 20 difference scientifically who signs it, it kind of does, 21 doesn't it? 22 A. Well, those numbers are those numbers. Assuming 23 they're entered correctly -- 24 Q. But you've just made an assumption, right? 25 A. Correct. 46 1 Q. And when I go to sign it, unless you've 2 double-checked, if I'm signing for you, I'd be making the 3 same assumption? 4 A. If you didn't check the numbers, yes, you would be. 5 Q. So it might make a difference scientifically if 6 somebody signed for somebody else? 7 A. If they didn't check the numbers, and if the numbers 8 were different, then it could make a difference. 9 Q. Exactly. Okay. 10 I'm sorry, I know that was tortuous. 11 A. I'm just kind of out of my element. 12 Q. Now, what was Ann Marie Gordon's role in the lab? 13 A. Ann Marie was our laboratory manager. 14 Q. What does that mean? Did she oversee everything? 15 A. Pretty much, yes. 16 Q. And did you ever see her certifying solutions in the 17 lab? 18 A. I have. 19 Q. And when is the last time you saw her certifying a 20 solution? 21 A. I honestly don't recall. 22 Q. Can you estimate? Last month, last two months? 23 A. I believe she did do it at some point when I was back 24 in graduate school. 25 Q. When would that have been? When did you go back to 47 1 graduate school? 2 A. Full time in 2005, September. 3 Q. So sometime after 2005 you saw her do it? 4 A. I believe I did. I'm really bad with dates and when 5 things occur. 6 Q. That's fine. Have you seen her do it more recently? 7 Did you see her do it this summer? 8 A. No. I'm only in the lab typically Thursday mornings 9 and Sundays. 10 Q. Okay. Now, I'm going to characterize this as 11 testimony. And Ms. West, please let me know if you want to 12 characterize it some other way. 13 Ann Lange has testified through this fax that 14 Dr. Logan directed her to stop preparing and testing the 15 simulator solutions in March of 20007. 16 Were you aware that such a directive had been 17 given? 18 A. I was not. 19 Q. Have you seen her do any technical work in the lab 20 since March? 21 A. No, I have not. 22 Q. Has she ever asked you to do a simulator solution 23 certification for her? 24 A. Not that I recall. 25 Q. Ever hear her ask someone else to do it? 48 1 A. Not that I recall. 2 Q. Ever hear anybody doing that? 3 A. Of somebody asking somebody to do it for them? 4 Q. Yeah. 5 A. No, I have not. 6 Q. Did you ever see anybody -- actually, forget about 7 asking -- did you ever see anybody actually doing it for 8 anybody else? 9 A. Not that I'm aware. 10 Q. You're aware what happened in Ms. Gordon's case, but 11 you haven't actually seen it happen. 12 A. Correct. 13 Q. Did you ever see anybody else sign Ms. Gordon's name 14 to any of these documents? 15 A. No, I didn't. 16 Q. When did you become aware of the Ann Marie Gordon 17 situation? 18 A. When was that? Probably about a month ago or so. 19 Q. And how did you become aware of it? 20 A. She informed me of it. 21 Q. Personally? 22 A. Yes. 23 Q. Was that one-to-one or in a meeting? 24 A. It was she and I and a former employee who was still 25 doing laboratory work here. I had come in one morning and 49 1 she informed me of what was happening. 2 Q. And what did she tell you? What did she say was 3 happening? 4 A. That Ed Formoso had tested some simulator solution 5 batches for her, and that there was an investigation going 6 to be starting into it. 7 Q. Did she tell you whether or not she had asked 8 Mr. Formoso to do that? 9 A. No. 10 Q. Did she go into a lot of detail for you? 11 A. Vaguely. She told me when it happened, and we did 12 have a conversation about it. But I don't know a whole lot 13 about it. 14 Q. Did she tell you that she had signed the declaration 15 under penalty of perjury? 16 A. She did say that, yes, she had signed these forms. 17 Q. So at that point were you aware that there was at 18 least a suspicion of perjury? 19 A. I believe she did tell me that was the reason that 20 there was going to be an investigation. 21 Q. How did you feel about that? 22 A. I felt bad for her. She's -- she was a very good lab 23 manager, and she brought a lot of wonderful quality 24 assurance steps to our lab. 25 Q. Did you have a problem with the fact -- let's not 50 1 call it a fact. If it had been proved, if it is proved that 2 she has lied and committed perjury, do you have a problem 3 with that? 4 A. I understand why she would do it. As a laboratory 5 manager, she was signing off. I think it's fairly common 6 that you direct somebody to do something, because she worked 7 a whole lot of hours. You can only do so much. So she was 8 delegating, in her mind. But I do see that it says that, "I 9 tested." 10 Q. Well -- and I mean, that's important, right? Because 11 when we deal with labs, a lot of us delegate, and a lab 12 manager could delegate a task to somebody in the lab, right? 13 A. Correct. 14 Q. And when we see published articles, we know that the 15 scientists there have oftentimes had their post docs or 16 graduate students doing the research for them, right? 17 A. Correct. 18 Q. But they don't claim under penalty of perjury that 19 they've done it themselves, by and large. 20 A. Correct. 21 Q. Which is a lie if they didn't. 22 A. It would be misleading, yes. It's that, "I tested," 23 line that does make it difficult. 24 Q. And I understand why you used the language you did, I 25 understand you respect Ms. Gordon. But it's more than 51 1 misleading, isn't it? It is a lie. 2 A. It's incorrect. It's false, yes. 3 Q. Now, when we talk about the preparation of a solution 4 versus the certification, those are two different processes, 5 correct? 6 A. Yes, they are. 7 Q. And just real short, can you tell me what preparation 8 of the solution is? You don't need to go into all the gory 9 details? 10 A. It's actually changed since the last time I prepared 11 it. But you have this big plastic stack, and it used to be 12 54 liters, now I believe it's it 52 liters. But you fill it 13 halfway with deionized water; you add a precise amount of 14 pure ethanol, and then you fill it up the rest of the way, 15 and you let it mix for two hours. And then it goes into 16 what we've discussed, about how every available toxicologist 17 has to -- 18 Q. Okay. So in essence, the preparation is creating it, 19 it's making it? 20 A. Correct. And bottling it, and all that. 21 Q. It's impossible to test something before it exists, 22 right? 23 A. Yes, it is. 24 Q. So then, someone couldn't examine a solution for 25 certification prior to its being prepared? 52 1 A. That's correct. 2 Q. If somebody said that they did, at the very least 3 they would be mistaken. 4 A. That's correct. 5 Q. Now, who is the other former employee with you when 6 Ms. Gordon spoke to you about this? 7 A. Ruth Lupe. 8 Q. Is she involved in preparing simulator solutions at 9 all, that you know? 10 A. Way back in the day she would have been. 11 Q. Way back. Okay. She's not currently involved in 12 that in any way? 13 A. No, she's not. 14 Q. She's over another, DNA or something else? 15 A. No. She actually lives in New Mexico. 16 Q. So a very former employee. 17 A. Well, she's come back to our laboratory to assist 18 with other things, but not with simulator solutions. 19 Q. Assist with anything having to do with Ann Marie 20 Gordon's departure? 21 A. No. 22 Q. Now, there have been a couple other employees that 23 have left within the last year or so, and I just wanted to 24 ask you to be complete. 25 Katy Hoff, do you know Katy Hoff? 53 1 A. I did. 2 Q. When did Katy Hoff leave? 3 A. I don't know. Again, I'm only here for a couple 4 hours when everybody else is here. 5 Q. And that's okay. And if you don't know, that's good 6 enough for me. 7 Do you know why she left? 8 A. I don't. 9 Q. How about Kelly Gross? 10 A. I do know Kelly. 11 Q. And she left at the end of August, correct? 12 A. Yeah. She just left, end of August, beginning of 13 September. 14 Q. Do you know why she left? 15 A. Her husband has a job back in Wisconsin. 16 Q. Okay. So as far as you know, it had nothing to do 17 with Ann Marie Gordon at all? 18 A. That's correct. 19 Q. What about Paige Long? 20 A. Paige moved back to West Virginia. That's where her 21 significant other is. 22 Q. And about how long ago was that? Just a guesstimate. 23 A. Approximately a year -- 24 Q. So it had nothing to do -- 25 A. -- plus or minus many months. 54 1 Q. So as far as you know, that had nothing to do -- 2 A. No, it did not. 3 Q. Okay. Now, I'm going to show you some things. If I 4 can just have a minute, Ms. West. 5 For the record, your Honor, I'm just going to 6 pass forward this declaration which should establish the 7 foundation for -- here's the second page, it's signed -- 8 establish the foundation for where these documents came 9 from. When it's okay for me to proceed, let me know. 10 MS. WEST: Please proceed. 11 MR. VOSK: Are you aware of -- you've got a 12 complaint, how do you deal with a complaint in the lab? 13 A. You would take it to your supervisor. And then, if 14 the supervisor thought you were getting a good resolution, 15 you could possibly take it to the manager, and just up the 16 chain of command, essentially. 17 Q. Kind of like a military thing. You go to the next 18 highest ranking officer above you. 19 A. Correct. 20 Q. Now, is there a phone number that employees can make 21 complaints on? 22 A. I wasn't aware of it up until this whole situation. 23 But apparently there is. 24 Q. Well, that may have answered my question. But I'm 25 going to run through this just to make sure, very quick. 55 1 I'm going to show you -- should we be marking 2 these, your Honor, at this point? 3 MS. WEST: I think it's a good idea. Let's go 4 back and mark the curriculum vitae as Exhibit 1, 1-A, and 5 the Solution 7007 as 1-B. So just continue. 6 (Whereupon, Exhibit Nos. 1, 1-A and 1-B were 7 marked for identification.) 8 MR. VOSK: With respect to the ones that are not 9 witness specific, do we not want to append the numeric 10 designation? 11 MS. WEST: We should refer back to it. 12 MR. VOSK: Can we mark it as 1-C. 13 (Whereupon, Exhibit No. 1-C was marked 14 for identification.) 15 Q. I'm going to hand you what's been marked as 1-D. 16 Can you read that for a second? Let me know when 17 you're done. 18 A. Okay. 19 Q. Did you ever make any kind of a phone call leaving 20 that kind of message? 21 A. No, I did not. 22 Q. Do you know of anybody who ever has made a phone call 23 leaving that message? 24 A. I don't. 25 MR. VOSK: Do you mind if I hold these, your 56 1 Honor? 2 MS. WEST: That's fine. 3 MR. VOSK: Can we mark that 1-E. 4 (Whereupon, Exhibit No. 1-E was marked 5 for identification.) 6 Q. I'm going to hand you what's been marked as Exhibit 7 1-E, an internal communication. 8 Did you know that in April, and perhaps extending 9 backwards in time into March, there was a concern with 10 respect to the simulator solutions? 11 A. I did not know that until all of this came out. 12 Q. So prior to all of this, as far as you knew, as far 13 as you were concerned, everything was just fine with the 14 simulator solutions. 15 A. Correct. 16 MR. VOSK: 1-F. 17 (Whereupon, Exhibit No. 1-F was marked 18 for identification.) 19 Q. If you could just read that real quick. 20 A. Out loud? 21 Q. No, just to yourself. And for the record, this is 22 just another anonymous call made. 23 Okay. Have you ever made a phone call and said 24 those words? 25 A. I have not. 57 1 Q. Did you ever know anybody who has made a phone call 2 and said those similar words? 3 A. No. 4 Q. Do you have any idea who made that phone call? 5 A. No. 6 Q. Let me real quick, going back to 1-E, in there, in 7 line 3 -- and I'll pass this over -- Mr. Formoso and Ann 8 Gordon indicate that there was a lab meeting on April 11th, 9 2007 concerning the simulator solution protocol. 10 Do you remember any such lab meeting? 11 A. I miss most of the lab meetings because I am at 12 school. 13 Q. Okay. Do you get -- when you miss those, are you 14 provided follow-up materials with respect to them? 15 A. Typically not, no. 16 Q. So if this was an important meeting that had 17 something that everybody needed to know, you might not get 18 any of that information. 19 A. Correct. I usually talk to people if there is one. 20 But I don't have the documentation. 21 Q. Did you talk to anybody about this one? 22 A. I don't recall it, no. 23 Q. So you could be out of the loop on a few things? 24 A. I suppose I could. 25 Q. And I forget, earlier you said that you were aware, 58 1 you became aware after the fact, that it was Ed Formoso that 2 was doing the testing for Ann Marie Gordon? 3 A. That's what I was told, yes. 4 Q. You never talked to him about it? 5 A. I don't believe I have. 6 Q. Did you ever hear that anyone else was involved 7 beyond those two? 8 A. No, I did not. 9 Q. Is your understanding that he just entered the data, 10 or did he also sign for Ann Marie Gordon? 11 A. I honestly don't know. 12 Q. Now, taking a look at your CV, you indicate that you 13 are a member of the Society of Forensic Toxicologists? 14 A. Correct. 15 Q. And the American Academy of Forensic Science? 16 A. I'm actually no longer a member of the American 17 Academy of Forensic Science. I didn't get my application in 18 time, so I let it lapse. As I mentioned when we first 19 started, this is a very outdated CV. 20 Q. But it wasn't because you were dissatisfied with that 21 organization in any way? 22 A. No, not at all. 23 Q. Is that a well-recognized organization? 24 A. Yes, it is. 25 MR. VOSK: Give us a moment, your Honor. 59 1 Q. And are you aware of an association called the 2 American Society of Crime Laboratory Directors, the ASCLS? 3 A. ASCLD. 4 Q. ASCLD? 5 A. Yes. I've heard of it. 6 Q. And is that a respected organization in your 7 particular scientific community, in the forensic sciences 8 community? 9 A. I actually -- I'm more familiar with ABFT. 10 Q. ABFT? 11 A. Uh-hum (affirmative). 12 MR. VOSK: Can we mark -- there's three pages 13 here. What are we on, G? 14 MS. WEST: G. 15 MR. VOSK: Can we mark these three pages as G? 16 (Whereupon, Exhibit No. 1-G was marked 17 for identification.) 18 Q. What's the significance to the ABFT? 19 A. They have a set of guidelines, and you can become 20 certified with ABFT. 21 Q. So they're pretty big hitters in the community? 22 A. They are very well respected, yes. 23 MR. VOSK: This is printed off of their web 24 site. 25 MS. WEST: Okay. 60 1 BY MR. VOSK: 2 Q. Now, can you take a look at that? What you've been 3 handed is three printoffs of web pages. At the top it's 4 identified as the ABFT. 5 Does that look like the organization you're 6 talking about? 7 A. Yes. 8 Q. Can you pass that back to me for a second? 9 I'm going to point you to the third page. And on 10 the third page, there's a section called, "Guide to Ethics." 11 And it indicates that the American Board of Forensic 12 Toxicology expect all persons holding their certificate from 13 the board to "maintain good moral character, high integrity, 14 good repute and high ethical and professional standing. And 15 that these are initial and continuing qualifications for 16 recognition by the board." 17 Can you take a look at that and just verify that 18 that's what, right beneath the second heading, that says? 19 A. That is what it says. 20 Q. So according to ABFT, integrity is pretty important. 21 A. Correct. 22 Q. If we lie, that's not integrity. 23 A. Correct. 24 Q. On the second page, is there something -- can you 25 tell us what it says with respect to -- and I'm sorry, I 61 1 didn't mean to drop that -- what it says with respect to lab 2 guidelines? 3 A. Which page are you referring to? This is the page -- 4 Q. Yes. That simple one line right there. 5 A. "The Forensic Toxicology Laboratory Guidelines are 6 posted at the Society of Forensic Toxicologists' web site." 7 Q. Yes. That's all I wanted you to see. Now, the 8 Society of Forensic Toxicologists, that's the other 9 organization you belong to. 10 A. That's correct. 11 Q. So we've got this, the ABFT, which is nationally 12 recognized, and then they're referring us to SOFT? 13 A. SOFT is just an organization of forensic 14 toxicologists. 15 Q. So it's directing us to the SOFT web site. 16 A. That's correct. 17 MR. VOSK: 1-H. 18 (Whereupon, Exhibit No. 1-H was marked 19 for identification.) 20 Q. Can you -- well, first, take a look at the front 21 cover and identify that. 22 A. This is the forensic "Forensic Toxicology Laboratory 23 Guidelines," 2006 version. 24 Q. Can you open up to guideline 4.19? 25 A. Okay. 62 1 Q. Now, there, does it indicate that "part of the 2 responsibility is to" -- and I'm simply just going to quote 3 this to make it easy -- "to ensure that all personnel meet 4 high ethical and moral standards"? 5 A. Yes. We should exert reasonable efforts to ensure 6 that all personnel meet high ethical and moral standards. 7 Q. Okay. So then, that's all I needed you to take a 8 look at. 9 So according to both the ABFT and SOFT, 10 integrity, ethics, being honest are pretty important just in 11 being able to do forensic science? 12 A. Agreed. 13 Q. So would we say that it's generally acceptable -- 14 well, it's not generally acceptable for an individual, then, 15 within the forensic toxicologist community, to lie about 16 having done measurements? 17 A. I agree. 18 Q. In science in general, it's not generally accepted. 19 A. Correct. Well, taking credit for things that maybe 20 other people have done, I think that's done more often. 21 Q. Well -- 22 A. Or delegating. 23 Q. I think we could agree that there's no problem with 24 delegating. 25 A. Uh-hum (affirmative). 63 1 Q. But we're talking about integrity here. With respect 2 to integrity, according to these standards, lying would be 3 something that's not acceptable. 4 A. I agree with that. 5 Q. Now, if there were -- now -- and I will assume, 6 that's just for science. In law enforcement, because you're 7 part of law enforcement, is it generally acceptable to lie 8 in conducting law enforcement pursuits? 9 A. I personally don't consider myself in law 10 enforcement; I consider myself a scientist. I don't handle 11 that aspect. So I couldn't comment on their training or 12 what they believe. 13 Q. Have you ever testified for a defense attorney? 14 A. I have. 15 Q. You have. Okay. Very good. 16 I wasn't expecting that. 17 A. Sorry. 18 Q. No, that's just fine. If an allegation generally is 19 made that an individual in the lab has lied about 20 measurements that they've performed, do you think it would 21 be a good practice to assign that person, the person who has 22 been accused of lying about it, to investigate the 23 accusation? 24 A. To investigate an accusation made against them? 25 Q. Yeah. 64 1 A. Probably not. 2 Q. You'd want somebody else, a neutral party, to 3 investigate? 4 A. Yes. 5 Q. Now, have you ever testified in a criminal or civil 6 proceeding concerning simulator solutions? 7 A. Yes, I have. 8 Q. Now, it's been awhile -- well, when is the last time 9 you did? 10 A. In court? I don't believe I've testified since I 11 went back to graduate school in court. 12 Q. So about 2005? 13 A. Yeah. There's a possibility I went once or twice, 14 but I don't recall doing it. 15 Q. You did know that, however, and you did expect, that 16 your declaration would be used in court proceedings? 17 A. Yes. 18 Q. When you did testify in court? In essence, what 19 would your testimony be with respect to the simulator 20 solution? 21 A. How it was prepared. And then, they would sometimes 22 have he me read off the average solution concentration, or 23 tell them the range that was acceptable on the breath test, 24 and just that it did meet the requirements. 25 Q. So when you said "read off," you're reading it out of 65 1 the statistics there. 2 A. Correct. 3 Q. And you didn't go back and redo all the math on that, 4 you took what the computer told you? 5 A. Yes, I did. I would have this worksheet in front of 6 me. 7 Q. Okay. So then you're making an unqualified statement 8 concerning, yes, this is what the average was, this is what 9 the standard -- whatever it was, you're making this 10 unqualified statement. 11 A. I believe the question would be, did it meet the 12 requirements, was the CV less than five, was it within the 13 range? And my answer would be yes. 14 Q. So an unqualified statement. 15 Now, is it possible the machine could have been 16 wrong? 17 A. The Headspace instrument? 18 Q. No, no. The computer that calculated those numbers. 19 A. The Excel database? 20 Q. Yes. 21 A. Anything is possible. 22 Q. And you didn't go back to check to make sure it 23 wasn't wrong? 24 A. No. I mean, if you look at the numbers, it doesn't 25 take a math wiz to figure out that looking at those numbers, 66 1 the average solution content is consistent with. 2 Q. But it could have been wrong, and you didn't go back 3 to check to make sure it wasn't wrong? 4 A. I didn't go into -- no, I did not. 5 Q. So while you've made an unqualified statement, 6 whether it be on the declaration or on the stand, it was 7 something that you didn't actually know was true. 8 A. I guess I'm not understanding your question. 9 Q. Well, if you didn't go back and do the calculations 10 yourself, then you don't -- you didn't know for sure whether 11 or not the numbers reported by the computer were correct. 12 A. Glancing at those numbers, it's clear that -- it's 13 within the target range. I don't need a statistic to say 14 yes or no. You can look at those and see that, yes, they 15 fall within a .98 to -- yeah .098 to .108. There aren't 16 numbers that would have and below. 17 Q. Let me ask you a question. If I pull out a random 18 spreadsheet, can you tell me exactly what the CB is, by just 19 looking at the numbers? 20 A. No, I couldn't. 21 Q. So in essence, you testified to something you didn't 22 know was -- whether or not it was actually true; you just 23 accepted what the computer told you. 24 A. I could look at this and tell you that, yes, it's 25 under 5. Could I tell you that it's 1.1279? No. 67 1 Q. Without looking at the statistics and just looking at 2 the spreadsheet, could you tell me what the average was? 3 A. Could I tell you that it's within the range? Yes. 4 Could I tell you it's exactly .102? No. Looking at it, you 5 could tell that it's probably somewhere between a .10 and a 6 .103 for sure. 7 Q. But now, you said that you had testified concerning 8 the statistics on that front page. 9 A. I've read them often. I've said that it's between 10 the range. 11 Q. And so when you read those numbers off, in essence, 12 you were testifying to something you didn't know whether or 13 not it was true. 14 A. I read the numbers. I made it clear I was reading 15 the numbers generated by the report. 16 Q. Did you ever tell anybody you hadn't gone back and 17 double-checked them? 18 A. I don't believe I was ever asked. But I would 19 testify that I had double-checked them if I was asked. 20 Q. I think that would be wise. 21 What do we have 07007 marked, is that 1 -- 22 MS. WEST: 1-B. 23 MR. VOSK: Can you hand her 1-B back? 24 MS. WEST: She has it in front of her. 25 THE WITNESS: Which one is it? 68 1 MS. WEST: The worksheet. 2 MR. VOSK: And if I can just have a second here. 3 Q. Now, taking a look at that, I'm going to direct you 4 to the statistics section. 5 When you sign your declaration, when you sign off 6 on this -- tell me this: What's the average? 7 A. The average of 07007? 8 Q. Uh-hum (affirmative). 9 A. Based on this sheet, it says it's a .1021 grams -- 10 Q. And all you're basing it on is that sheet? 11 A. Correct. 12 Q. So if your declaration or signature were taken to 13 mean and encompassed the statistics, they would be 14 encompassing the .1021? 15 A. When I sign this declaration I'm saying that the 16 average is somewhere between .098 and .108, and that the CB 17 is less than 5. 18 Q. It's somewhere between what? 19 A. .098 and a .108, I believe is the requirement. Yes. 20 MR. VOSK: Can you mark this at, what are we on? 21 1-I. 22 (Whereupon, Exhibit No. 1-I was marked 23 for identification.) 24 Q. Now, I think -- what is it labeled? It should be 25 August 9th, 2007? 69 1 A. September 9th, 2007. 2 Q. Oh, I'm sorry. And does that indicate that there 3 were problems found with respect to simulator solution? 4 A. I have to read it really quick. 5 Q. Take your time. 6 MR. VOSK: Can you mark this as 1-J, please? 7 (Whereupon, Exhibit No. 1-J was marked 8 for identification.) 9 With respect to 1-I, which is the web site, what 10 does that passage indicate to you? 11 A. I'm assuming we're talking about notices? 12 Q. Yeah. Yes. 13 A. Okay. So the August 9th one indicates that there was 14 an error discovered in the calculation of the external 15 standard simulator solution reference values. And that 16 there could be some overestimation by .001 to .002 in some 17 tested -- in some tests that were conducted in Spokane 18 County. And there's another notice in July of 2006, that's 19 dated July 2000 -- 20 Q. If that the Ann Marie Gordon one? We don't need to 21 hit that yet. 22 A. It does look like it continues into that, yeah. 23 Q. So right there, there's notice of a problem with 24 values that are being reported for simulator solutions. 25 Regardless of how big or small, it's alerting people that 70 1 something happened in the lab, and values were coming out 2 wrong. 3 A. It says that there's an error in the calculation for 4 one's breath test instruments in Spokane County. 5 Q. Can you take a minute to go ahead and look at what 6 we've had marked as 1-J, and can you just read through up to 7 the part where you begin getting to individual tests. 8 And your Honor, while she's reading, this might 9 be a good point for a break, if anybody wants to use the 10 restroom or anything. 11 MR. ESPANA: Five-minute recess. 12 (Whereupon, a recess was taken.) 13 BY MR. VOSK: 14 Q. What exhibit was that that I handed you last, what's 15 it labeled? 16 A. It was 1-J. 17 Q. Did you have a chance to read that? 18 A. I did. 19 Q. What do you understand that to be saying, just in 20 general, you don't have to go into ex excruciating detail. 21 A. The main idea was that there were four results, four 22 analyst results, that weren't being incorporated. And that 23 they did change the results of six solutions to the third 24 decimal place. And that they have gone in and recalculated, 25 they checked both the simulator solutions and the quality 71 1 assurance samples. 2 Q. So -- and if you could take a look at the last two 3 pages where they have that full running list of solutions 4 that were affected. Sometimes the number of analysts were 5 as many as 16, correct, who certified the solution while the 6 computer was only actually including the data for 12? 7 A. I see that there's, under the number of analysts 8 included in the calculation, 16 does appear to be the 9 highest number. 10 Q. And so, in those cases, the calculations printed out 11 by the computer failed to include four of the analysts who 12 did the testing of the solution? 13 A. I saw that it was the last four that were excluded. 14 I didn't see if it was the first 12. 15 Q. Okay. There were four excluded somewhere? 16 A. The software started with 16, so if you take off 17 four, you get 12. 18 Q. Now, that's not in compliance with the protocol we 19 went through earlier. I think it was Step 4 that said we 20 need to include all of the analyst data. Is that correct? 21 A. Step 4. "The average of results from all of the 22 analysts are computed." 23 Q. Now, you said earlier that you were a QA manager? 24 A. I did do that for a very short time before I went 25 back to graduate school. 72 1 Q. When was that? 2 A. I interviewed in the middle of February. My official 3 start date, I believe, was March 1st of 2005. And then I 4 went back to graduate school end of September of the same 5 year. 6 Q. So that seems to indicate that the problem began in 7 August 2005, am I correct? 8 A. 32 solutions tested between August 2005 and August 9 2007 were affected, correct. 10 Q. And so part of this was going on while you were the 11 QA manager? 12 A. Apparently so. 13 Q. And you didn't catch it? 14 A. I didn't know. 15 Q. And you never checked the software to make sure it 16 was doing the calculations correctly? 17 A. I didn't. 18 Q. Were you involved in the decision to expand from 12 19 to 14 -- I'm sorry -- 12 to 16? 20 A. I was not. 21 Q. Will you take a look on the list of solutions and 22 tell me if solution 07007 is one of those included on there? 23 A. At the instruments affected by calculation error, or 24 just the big long list of cases that fell between those two 25 dates. 73 1 Q. The big long list of cases that fell between. Why 2 don't you go straight -- I'll cheat. Go to the last page. 3 A. Thank you. And which batch number? 4 Q. 07007, the one that we've been talking about. 5 A. Can I take these apart so I can see what the headers 6 are? 7 Q. Yes. Please don't rip it, though. 8 A. And what's your question? 9 Q. Does 07007 appear on there? 10 A. Yes, it does. 11 Q. What does it say the original average was calculated 12 as? 13 A. The average solution concentration was a .1021. 14 Q. Now, that's the original? 15 A. Correct. 16 Q. Now, can you take a look at your -- 17 A. Oh, actually. Yes, yes, it was. 18 Q. Can you take a look at, I think it's 1-B, the 19 worksheet for 07007. 20 A. Okay. 21 Q. And what does it say on that worksheet? 22 A. It says the average solution concentration was a 23 .1021. 24 Q. So that's, evidently, the original. 25 A. That's what the worksheet captured, yes. 74 1 Q. And you signed that? 2 A. I did. 3 Q. Now, is that correct? 4 A. Is what correct? 5 Q. Was that average correct? 6 A. Based on the sheet that I am looking at, if you added 7 four more -- the last four analysts' values, the value does 8 change to the third decimal place. 9 Q. Okay. So when you signed the worksheet, you're 10 pretty much signing, I did my run, this is the date I did my 11 run. But like we discussed before, when you sign that 12 declaration, you're making a much bigger claim. Now, you 13 didn't go back and double-check these statistics -- 14 MS. WEST: You've already asked it. 15 MR. VOSK: So when you signed your declaration, 16 the declaration that you signed, it was based on numbers 17 that were incorrect, the statistics? 18 A. These numbers are correct. The average solution 19 content, assuming that this sheet is accurate, the value 20 should have been slightly lower, the third decimal place. 21 Q. Okay. And what about the other values? All the 22 values change a little bit, don't they? 23 A. Let me check. Yes, there is some slight variation. 24 Q. Okay. So when you sign that declaration, if anybody 25 were to be relying on that for those statistics, to say that 75 1 those statistics were correct, we're submitting this, this 2 is correct, they would be misled? 3 A. You're referring to this as the declaration, right 4 (indicating). 5 Q. Yes. 6 A. This declaration is still accurate because these 7 results still fall within the specified range. And that's 8 what this is saying, is that it meets our criteria. So 9 that's accurate. This little statistics box would be 10 inaccurate. 11 Q. But can you calculate the standard deviation off the 12 top of your head just by looking at that box? 13 A. The exact number, no. But I can tell that it's less 14 than 5. 15 Q. You can? 16 A. Yes. I looked it up in these (indicating). 17 Q. Okay. I guess what my question is, is this: When 18 you signed that, did you think that those statistics were 19 correct? 20 A. I did. 21 Q. And is that what you were basing your declaration on, 22 were those statistics? 23 A. I usually look more, just glance over the numbers up 24 in the box. And then I do look at the statistics. 25 Q. So you were relying in part on the statistics? 76 1 A. In part, yes. 2 MR. VOSK: I'm going to be done here in just a 3 second, your Honor. 4 Q. So anybody who accepted those statistics as correct 5 would be wrong? 6 A. If they believed that the average concentration based 7 on all 16 analyst results was a .102, they would be 8 incorrect, because this sheet shows it. 9 Q. Now, when you sign that declaration, does the SOP 10 allow you to eyeball the chart and say, Yeah, I can tell 11 it's all within? 12 A. The SLP just says it needs to be within -- it doesn't 13 specify. Do you mind if I have a look at it? 14 Q. Oh, no. Please. 15 A. It doesn't say how you arrive at it, as long as the 16 criteria between the .098 and a .10 and less than 5 is 17 achieved. 18 Q. But you were the qualityassurance manager for awhile. 19 A. Correct. 20 Q. So you know how many people are just going to be able 21 to come up with a standard deviation off the top of hear 22 head, looking at all those numbers? 23 A. You probably wouldn't. But after you've looked at 24 enough of them, and you know that -- I mean, these are still 25 falling well within that range. In fact -- 77 1 Q. But when you first looked at it, you thought the 2 statistics were correct. So how do you know? 3 A. They're within a ballpark figure. 4 Q. They're within a ballpark figure. But you thought 5 the statistics were correct, and you were wrong, right? 6 A. I don't recall if you asked me if I thought it was 7 exactly a .1021. Did you ask me that question? 8 Q. I'll ask you right now: Did you? 9 A. They looked reasonable to me. 10 Q. And did you think it was a .102 -- whatever it is? 11 A. That would seem reasonable, yes. 12 Q. And when you put that forward, is that what you're 13 expecting people to accept, when you're signing your 14 declaration, that thing goes up on the web site, you know 15 those numbers are there, you know it's going to be used for 16 testimony in court, are you expecting those people to accept 17 those numbers, those statistics? 18 A. Yes. 19 Q. Based in part on your declaration? 20 A. Yes. 21 Q. And you were wrong? 22 A. My declaration is not wrong. It does meet our 23 criteria. 24 Q. The statistics. 25 A. The statistics are incorrect, based on what you've 78 1 told me, based on this memo. 2 Q. Now, you said that the gas chromatograph gets 3 calibrated every day? 4 A. Not necessarily every day. But -- 5 Q. Or every 24 hours? 6 A. Not necessarily every 24 hours. If there's going to 7 be a run done, those samples need to be started within the 8 24 hours of the instrument being calibrated. 9 Q. Now, in this case, we've got the allegation that 10 Ms. Gordon was having somebody else run data sets for her. 11 If she said that she -- if she told somebody she calibrated 12 it, based on the fact that we already know she lied about 13 doing one set of measurements, doesn't that draw into doubt 14 whether or not she's done any other measurement she's 15 claimed? As a scientist, wouldn't you be curious, she lied 16 once, did she really make these measurements? As a 17 scientist, somebody who wants to find the truth. 18 A. You could be. I know Ms. Gordon. I don't believe 19 that she would intentionally do something. 20 Q. But we know she did. 21 A. She did sign something that she possibly shouldn't 22 have signed. 23 Q. So the fact that we know that she did that, whether 24 it's because she was busy, human weakness, I'm not saying 25 she's a horrible person. But the fact that she did these 79 1 things, doesn't that now draw into doubt anything else she 2 signed, saying that she did? 3 A. It could. 4 Q. And as a scientist, wouldn't you want to double-check 5 now anything she said she did? 6 A. If you didn't know her work, you might want to. 7 Q. Okay. Wouldn't you want to? 8 A. I don't believe Ms. Gordon would intentionally do 9 anything that would be unethical or violate -- she's a good 10 scientist, and she believes very strongly in good quality 11 assurance and ethics. 12 Q. But as scientists, don't we kind of believe in what 13 we see, what pops out in the measurements, and didn't we get 14 a measurement that she has been lying? 15 A. Right. I could understand why an investigation would 16 be conducted. I think it's a good idea. 17 MR. VOSK: If I can have just a minute, and I 18 think I'm done, your Honor. 19 MS. WEST: Uh-hum (affirmative). 20 BY MR. VOSK: 21 Q. There was one last question. You said that the GC 22 results were placed in a file. 23 A. Correct. 24 Q. And those are the GC results that this worksheet 25 would be based on, correct? 80 1 A. Correct. 2 Q. Are those signed? 3 A. No, they're not. 4 Q. Is there any way to know who ran those? 5 A. Sometimes the name of the analyst, like when you 6 start your initial sequence, you can put your name in. But 7 if you came and you appended to somebody else's sequence, 8 you wouldn't be able to see, because that other person's 9 name would still show up. 10 Q. So when we take a look at these in the file, the 11 record of the GCs, the record that these are based on, we 12 might not even be able to distinguish who actually ran the 13 test? 14 A. That is a possibility. 15 Q. We just have to be able to trust this. And if this 16 was wrong, then we'd have no way of knowing (indicating)? 17 A. Well, hopefully for each of these values, there's a 18 chromatogram that has that same value, and they can all be 19 accounted for. 20 Q. But we wouldn't know who did it? 21 A. Not necessarily. 22 Q. So maybe the same person that goes in and runs 5, 6, 23 7, and just puts a bunch of other people's names down on the 24 worksheet. Not saying it did happen, but in some imaginary 25 world it could. 81 1 A. It would be difficult based on our practice, at least 2 back then, to know. 3 Q. Okay. 4 A. Generally, though, their name will be on there. But 5 there can be exceptions to that. 6 MR. VOSK: That's all I've got at this point. 7 MS. WEST: All right. Thank you, Ms. Thatcher. 8 MR. VOSK: Thank you. 9 THE WITNESS: You're welcome. 10 (Whereupon, a recess was taken.) 11 (Whereupon, Exhibit Nos. 2-A through 2-C were 12 marked for identification.) 13 MS. WEST: Now, before us we have Ms. Pemberton, 14 correct. 15 MS. PEMBERTON: Correct. 16 MS. WEST: And you have objections, Mr. Vosk? 17 MR. VOSK: I'm just going to state the same 18 objection I did last time with respect to developing 19 evidence on behalf of the Department, instead of acting as a 20 purely neutral judge. 21 MS. WES