Hofer et al v. Old Navy Inc. et al

Filing 86

Attachment 10
First Opposition re 64 MOTION for Summary Judgment filed by all plaintiffs. (Attachments: # 1 Exhibit Deposition of Stephanie Hofer, Volume I# 2 Exhibit Deposition of Stephanie Hofer, Volume II# 3 Exhibit Deposition of Stephanie Hofer, Volume III# 4 Exhibit Deposition of Carrie LaRoche# 5 Exhibit Travel Itinerary# 6 Exhibit Expedia Promise# 7 Exhibit Plaintiffs' Second Supplemental Answers to Expedia's First Set of Interrogatories# 8 Exhibit Stephanie's Second Supplemental Answers to Expedia's First Request for Admissions# 9 Exhibit Star Rating# 10 Exhibit Deposition of Faylin Miller# 11 Exhibit Selected Pages from the Deposition of Nashara Frazier# 12 Exhibit Registration Information Card# 13 Exhibit Expedia's Response to Plaintiffs' Notice of Deposition# 14 Exhibit Description of Turtle Beach Towers# 15 Exhibit Photographs# 16 Exhibit Selected Pages from the Deposition of Denroy Scarlett# 17 Exhibit Social Security Notice of Award)(Minchoff, India)

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Hofer et al v. Old Navy Inc. et al Doc. 86 Att. 10 Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 1 of 85 HOFER, ET AL v. THE GAP, INC., ET AL FAYLIN MILLER August 21, 2006 Prepared for you by Bingham Farms | Ann Arbor | Detroit | Flint | Grand Rapids | Jackson | Lansing | Mt. Clemens PHONE: 248.644.8888 FAX: 248.644.1120 www.bienenstock.com Dockets.Justia.com Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 2 of 85 Page 1 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Videotaped Deposition of FAYLIN MILLER, Taken at Turtle Beach Towers, Main Street, Ocho Rios, St. Ann, Jamaica, W.I., Commencing at 10:02 a.m., Monday, August 21, 2006, Before Rebecca J. Callow, CSR-5228, RPR. vs. THE GAP, INC., EXPEDIA, INC., and TURTLE BEACH TOWERS, Defendants. _________________________________ STEPHANIE HOFER and DOUGLAS HOFER, Plaintiffs, Case No. 05-40170 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 3 of 85 Page 2 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SCOTT D. FERINGA Sullivan, Ward, Asher & Patton, P.C. 25800 Northwestern Highway Suite 1000 Southfield, Michigan (248) 746-0700 Appearing on behalf of the Gap, Inc. 48037 INDIA L. MINCHOFF Russo & Minchoff 123 Boston Street Boston, Massachusetts (617) 740-7340 Appearing on behalf of the Plaintiffs. 02125 STEPHEN J. KUZMA Stephen Kuzma Law Office 75 Federal Street Suite 17 Boston, Massachusetts (617) 338-3020 Appearing on behalf of the Plaintiffs. 02110 APPEARANCES: Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 4 of 85 Page 3 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ALSO PRESENT: Lynsey Williams - Video Technician THOMAS T. REITH Burns & Levinson, L.L.P. 125 Summer Street Boston, Massachusetts (617) 345-3000 Appearing on behalf of Expedia, Inc. 02110 Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 5 of 85 Page 4 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MARKED BY THE REPORTER: DEPOSITION EXHIBIT NUMBERS 1-7 10:02 a.m. VIDEO TECHNICIAN: We are now on the record. Ocho Rios, St. Ann, Jamaica, W.I., Monday, August 21, 2006 10:02 a.m. This is the videotape deposition of Fay Miller being taken on Monday August 21st, 2006. 10:02 and 11 seconds a.m. The time is now We are located at the This Turtle Beach Towers in Ocho Rios Jamaica. deposition is being taken on behalf of the defendants in the matter of Stephanie Hofer and Douglas Hofer versus The Gap, Incorporated; Expedia, Incorporated; and Turtle Beach Towers. FDS. This case number 05-40170 This matter is being held in the United States District Court for the District of Massachusetts. My name is Lynsey Williams, video technician. Will the court reporter swear in the witness and the attorneys briefly identify themselves for the record, please? FAYLIN MILLER, was thereupon called as a witness herein, and after having first been duly sworn to testify to the truth, Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 6 of 85 Page 5 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Morning. MR. FERINGA: Let the record reflect this the whole truth and nothing but the truth, was examined and testified as follows: MR. FERINGA: behalf of The Gap. MR. REITH: Expedia, Inc. MS. MINCHOFF: plaintiffs. MR. KUZMA: Stephanie Hofer. MR. FERINGA: Good morning, Ms. Miller. Steven Kuzma for the plaintiff, India Minchoff for the Thomas Reith on behalf of Scott Feringa appearing on deposition is being taken pursuant to Notice and may be used for all purposes as contemplated by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. MR. KUZMA: Before we begin, I just want to make a statement that I don't believe consular authority has been granted in the case, and we'd object to the taking of the deposition on that ground. MR. FERINGA: We've received consular authority from the Consulate of Jamaica. MR. KUZMA: That's all I need. Okay. I'd like to see it. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 7 of 85 Page 6 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. Can you give us your full name, please? record. objection. MR. FERINGA: Somebody's at the door. VIDEO TECHNICIAN: We are going off the Let's go off the record. MR. FERINGA: with the motion. I think we've provided that You saw that letter from the Consulate, from Jamaica. MR. KUZMA: If that's so, I waive my The time is 10:04 and 7 seconds a.m. (Discussion off the record at 10:04 a.m.) (Back on the record at 10:05 a.m.) VIDEO TECHNICIAN: Back on the record. The time is 10:05 and 37 seconds a.m. MR. FERINGA: Just back on the record in response to Mr. Kuzma's objection, we had supplied with a petition to the Court as Exhibit D, a letter that was faxed to us from the Embassy of Jamaica on 27 July 2006 from Mr. Cythe, C-y-e-t-h, Denton, first secretary/consul, advising that the Embassy -- that Jamaica has no objection to the taking of the depositions here. record. EXAMINATION So we'll use that as part of the Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 8 of 85 Page 7 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. I'm Faylin, F-a-y-l-i-n. Miller, M-i-l-l-e-r. Mrs. Miller, we were introduced before we started this deposition. My name is Scott Feringa. I'm going to be asking you some questions today. The ladies here will be taking down everything that we say. Sure. Additionally, it's a fairly artificial way of talking, because two of us can't talk at the same time. That way, if we talk at the same time, our court reporter will not be able to take us down both together. So if you can wait until I'm finished and I'll wait until you're finished, that will be translated well on our record then, please. Okay. Additionally, Mrs. Miller, if you have any questions about what I have asked you, if I'm unclear in any way, please tell me and I'll be more than happy to rephrase the question. Sure. Mrs. Miller, we're at the Turtle Beach Towers in Ocho Rios, Jamaica. Yes, we are. And, Mrs. Miller, what is your position here? I'm general manager for the apartments. And how long have you been general manager for the Is that correct? All right, ma'am? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 9 of 85 Page 8 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. A. Q. A. Q. Q. A. A. Q. apartments, Mrs. Miller? 28 years. Mrs. Miller, what do your job duties entail? you do as general manager for the apartments? Well, I oversee staff members of 32. the manager for each apartment. rented pool. I oversee -- I'm What to There is a pool, I actually manage the front desk, manage the operations of the rooms, Turtle Beach rooms, for rentals. All right. You are here voluntarily to give testimony with respect to a case, a matter that occurred at Turtle Beach Towers on March 18 and 19, 2004. correct? Yes. And you and I have spoken on the phone? Yes, we have. We've arranged this through your good offices by e-mail with you. Yes. Have you spoken with anyone else about this case? No. Have you spoken with Ms. Minchoff or Mr. Kuzma? No. Who sent me the e-mail? You sent me the e-mail. Correct? Is that I did. Yeah. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 10 of 85 Page 9 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. And will you hold that up for the camera? Now, with A. BY MR. FERINGA: Q. Is this is a photograph of Tower Number 4 and the reception area? Yes, it is. MR. KUZMA: Objection. A. Q. A. Q. A. Q. A. Q. Q. The towers that we're involved in, how many towers are there? There are four towers. And then where they first built? Do you know? Oh, they are, I would say, 40 years old. The reception area, is that at Tower Number 4? It is. And is that the location where guests actually check in? Yes. That's right. I'm going to show you what we have marked as Exhibit Number 1. And this a photograph of Tower 4 and the This is the same photograph that has reception area. been used at the deposition of Ms. LaBelle and Mrs. Hofer. MR. FERINGA: MR. KUZMA: Counsel? I object to the form. respect to that photograph, where is the reception Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 11 of 85 Page 10 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. A. Q. A. Q. A. Q. Now you can answer. Exactly. Now, how many steps lead up to the landing? Three. If you look in the picture. One, two. Two. Two. A. BY MR. FERINGA: Q. So the photograph that you have in front of you is an accurate representation of how the property looked in March of 2004? Exactly. MR. KUZMA: Objection to the form. A. Q. Q. A. area located? Inside the lobby. go in. Inside here. Open the door and you It's right in there. And in March of 2004, was the reception area in that same location? That's never changed for 30 years. Okay. So the photograph that -MR. KUZMA: Objection. Move to strike. And if you show that the -- to all of us, please. The doors -- if you can keep that photograph up, Mrs. Miller, if you could. The doors, is there a Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 12 of 85 Page 11 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. Was there any difference in the turtle pond? A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. single door or two doors? Two doors. And has it always been two doors? Always been two doors. There is in the right side of that photograph a bench. You're familiar with that bench? Yes, I do. How long has that bench been there? For 20, 30 years. 20 years. As long as you can --- can remember, yes. And in back of that bench, what is there? A turtle pond. How long has that turtle bond pond been there? It has been there the same, about 20 years. Is there any other turtle pond on the property of Turtle Beach Towers? No. No. Never been. And on March 18, was this the same -- strike that. On March 18, was there any difference in the turtle pond as -No. MR. KUZMA: Objection. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 13 of 85 Page 12 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. BY MR. FERINGA: Q. And this is -- can you tell us what that photograph is? This is the reception area doors, the car parking, the turtle pond, this is the bench, the same steps that go up. Okay. You can show that to the members of the jury. BY MR. FERINGA: Q. I'm going to show you what I've marked as Exhibit Number 2. MR. FERINGA: MR. KUZMA: MR. REITH: Counsel? Yes. Thank you. BY MR. FERINGA: Q. A. Q. Now, I'm going to show -- you can put that one down. Okay. I'm going to show you -MS. MINCHOFF: Scott, did you make A. No. MR. KUZMA: Objection. photographs -- I mean, copies for us? MR. FERINGA: I didn't. I apologize. Thank you. And that's a close-up -- a closer shot than Exhibit Number 1. Correct? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 14 of 85 Page 13 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. BY MR. FERINGA: Q. How long -- how many hours in the day is the reception area staffed? Okay. You have one at 7:30 gets off at 3:30, and one A. A. Q. BY MR. FERINGA: Q. A. Q. "Yes"? Yes. Yes. MR. KUZMA: Objection. And are those steps the same as they were in March of 2004? Yes, it is. Okay. Never changed. Thank you. The reception area, Mrs. Miller, is that something that is staffed all of the time? 24 hours. MR. KUZMA: Objection. would be at 3:30 and get off at 11:30, and one is on 11:30 to 7:30. So is there ever a time when the reception area is not staffed? No. Not at all. Never. And was that true in March of 2004, Mrs. Miller? Oh, they were always there staffed. Three staff. With respect to the glass doors that we see in either Exhibits 1 or 2, Mrs. Miller, are those doors ever Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 15 of 85 Page 14 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Denroy. A. A. Q. A. Q. A. Q. locked? No. And from the reception desk, can the person at the reception desk see through the glass doors? Yes. At one point in time, did you employ a Shian Nelson? Yes. And was Shian Nelson employed as a -- at least a front desk manager in 2004? She was a receptionist, and then Stewart [sic] was the night auditor, and he stays all night. auditor/manager. MR. KUZMA: Who is? Night BY MR. FERINGA: Q. A. Q. Denroy Scarlett? Scarlett. Yes. So in March of 2004, in March of 2004, was Shian Nelson the receptionist during the day? From 3:30 to 11:30. And then the night manager would have been a -From 11:30 --- Mr. Denroy Scarlett? From 11:30 to 7:30. Let me show you what we have marked as Exhibit Number Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 16 of 85 Page 15 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Q. BY MR. FERINGA: Q. A. Q. Does that show concrete benches in that photograph? Yes. Beyond the bench that's sort of in the middle of photograph, is there a turtle pond in back of that? No. Never. Q. A. A. Q. 3, and ask you to tell us what this photograph is, please? This is the same front desk area for Tower Number 4. And is this just taken from a different view from Exhibits 1 and 2? Apparently, because I see the pedestrians here. We have flowers in the other section, the other side of this sign. All right. If we can show the members of the jury. That shows two concrete benches? MR. KUZMA: Objection. And where your left hand is, Mrs. Miller, what is that section? That's just like a garden that we have some flowers at. And was this the same configuration as it was in March of 2004? It was. Nothing has changed. And I'm going to show you what I have marked as Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 17 of 85 Page 16 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. BY MR. FERINGA: Q. And I'm just going to show you what we've marked as Exhibit Number 5, and ask whether you can identify that photograph as well. That's the turtle pond. And is this the -- was this turtle pond the same as it A. A. Scott. If you don't mind, Ms. Miller, if you can speak up just a little bit. Okay. MR. REITH: We want to make sure we get it. A. Q. A. Q. A. Q. Exhibit Number 4. photograph is? That's the front desk area. And does it show any evidence of a turtle pond? Yes. Right here. Can you tell us what that Can you show it to the members of the jury? So what you're pointing to with your finger is the turtle pond. The turtle pond. Thank you. MR. REITH: If you don't mind me asking, Correct. My hearing must be shot from the flight, so... Okay. MR. REITH: Thank you. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 18 of 85 Page 17 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. BY MR. FERINGA: Q. The question I have, Mrs. Miller, is is this an accurate representation of what the property was like on March 18, 2004? No. It hasn't been changed from that. A. Q. A. Q. A. Q. was in 2004? It is. Thank you. It was. I'm going to show you what has been marked at a previous deposition as Hofer Exhibit Number 5, and it's a drawing that Ms. Hofer made in her deposition in March -- I mean, on June 29, 2006, and purported to be the layout of the lobby and turtle pond area. There was not two turtle ponds, just one. And my question is -MR. KUZMA: I move to strike. Can you -No. It has not been changed. This is not. This is saying one, two, three, steps there, not four steps. This is saying two turtle ponds, we only had one turtle pond. And in terms of the door area, if it has been represented by Ms. Hofer that that door was a single glass door, was that -- Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 19 of 85 Page 18 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. It's not. BY MR. FERINGA: Q. A. Q. A. Q. It's what -No. It was -- there was no stones there. A. Q. A. Q. A. Q. A. No. Two doors. Two doors. The way it was built. Two doors. There's also been testimony by Ms. Hofer that the walls of the turtle pond itself and the edge of the turtle pond was made of stone and jagged stone. No. Is that accurate? No. this. MR. KUZMA: I object and move to strike. That's not. No stones there. It's just like That's the way it was built. And if you could just pick up the Exhibit Number 5. It was just like this. It has never been like this. And I'm going to show you what has been marked at a previous deposition as LaRoche Deposition Exhibit Number 1. This was a drawing by what -- a lady whose Is name was "LaBelle" at the time, now "LaRoche." that an accurate representation of the condition of the property on March 18? MR. KUZMA: Objection. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 20 of 85 Page 19 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. A. A. BY MR. FERINGA: Q. All right. And what's -- if you show the camera, what is different about this than what actually occurred? MR. KUZMA: Objection. We have two doors, we have two steps, we have one turtle pond, and these are like a garden. BY MR. FERINGA: Q. A. Q. Okay. So where -Yes. This is the walkway. And this is a bench. Where Ms. now LaRoche says that there are one, two, three, four stairs leading up to a single door, is that accurate or not accurate? No -MR. KUZMA: -- it's not. Objection. It was two steps. BY MR. FERINGA: Q. You can place those down. As part of your job responsibilities, are you required or do you investigate incidents that occur within rentals? I do. And is that something that you have done over the years that you've served as general manager? Yes, I have. And do you prepare reports as part of your normal Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 21 of 85 Page 20 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. A. Q. A. Q. A. course of business? Yes, I do. And do you send those to your superiors? Strata. The Strata. There is Strata corporation, so the Strata is for the grounds and -- for the grounds. So I have to send a letter to the Strata, which I did. "Strata" is spelled how? S-t-r-a-t-a. Strata Number 7. And it's part of your job responsibilities -- if there is an incident that occurs outside on the grounds, is it your responsibility then to investigate that and send a report? Yes, I do. And the report, is that done in the normal course of business for you? It is. In fact, did you conduct an investigation with respect to the incident that occurred on March 18, 2004, Ms. Miller? Yes, I did. Do you remember this incident? Yes, I do. With respect to this incident, Mrs. Miller, how, in fact, were you first notified that some sort of incident took place? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 22 of 85 Page 21 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. A. Shian. MR. KUZMA: Right. Shian. Okay. Continue. said. MR. FERINGA: Shian. A. I was called at home on the telephone at about midnight or thereabout to say that a guest -- she was sitting in the turtle pond earlier in the evening. She was in Tower Number 1. Her room was in Tower Number 1, which is way over there; and that is Tower 4. She went in the turtle pond, was sitting in it. She was told by both guests and staff that she should not sit in the pond. And she said she wanted one of I was told that the turtles to take to her apartment. they were -- receptionist told her, that is Shian, told her this could not be, she should get out of there, because they would bite. MR. KUZMA: I'm sorry. Would bite here. I didn't get who you They would bite. I also have guests who told me, from Canada, who has actually deceased now, she had cancer and is deceased, who told me that she went to her and told her that it was not appropriate for her to sit in the pond with the turtles; they're there for attractions. BY MR. FERINGA: Q. Mrs. Miller, who was the first one that called you at Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 23 of 85 Page 22 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. A. Q. about midnight? The night auditor. And is that who, please? MR. KUZMA: move to strike. BY MR. FERINGA: Q. A. Q. Go ahead. Denroy Scarlett. And what -- and Mr. Scarlett was someone under your direction and control and supervision? Yes. And was it part of his job responsibilities to contact you, Mrs. Miller. Yes, it was, and he did. What did he tell you on the telephone, please? MR. KUZMA: Objection. She I'd object to that answer and He told me that a guest was in the turtle pond. fell in the turtle pond, and she's bleeding. I instructed him to get a cab -- taxicab and send her directly to the hospital. BY MR. FERINGA: Q. Did you arrive at the -- did you come from your house to the property that evening? At 12:30, no, in the night. No, I did not. And when did you -- did you have any other Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 24 of 85 Page 23 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. communications that evening with Mr. Scarlett or anyone else from Turtle Beach Towers about this particular incident? No. Just the morning I come into work, I got the I spoke to him in the office. I report from him. also called the roommate to find out what was happening, if she was back here. She told me no, she was going down to the hospital to look for her, to see her. I asked her as soon as she's back to give me a report on her conditions. When I -- when she did, she came to my office, and she told me that she -- they would have to be flying her out because her ligaments were torn, and she's making arrangements for flying her out. When you came to the office that morning, which would have been the morning of March 19, you talked to Mr. Scarlett again? Yes. Yes. Yes. Mr. Denroy Scarlett? Yes, I did. And did he tell you anything more about what had occurred that previous evening? Yes. He said that she was drunk, was his words, and And she was -- they were playing with the turtles. they were -- she was warned not to do so, and she said she wanted one to take back her to her room to put in her bathtub. And she slipped and he called a taxi, Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 25 of 85 Page 24 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. BY MR. FERINGA: Q. A. Did you have any conversations with Shian Nelson? Yes. Shian was the one who told me that from the the guy at the gate, the security guard, and he got a taxi and he sent her off to the hospital because she was bleeding very badly. MR. KUZMA: Objection. Move to strike. evening she came playing in the water -MR. KUZMA: Objection. -- playing with turtles, and she was told not to. BY MR. FERINGA: Q. All right. And did you conduct this investigation as part of your investigation? Yes. Yes, I did. I'm going to show you what we have marked as some group exhibits and ask whether you -- first, this will be 6A, 6B, and 6C. and 6C is third. I'm just going to direct your attention to what I've marked as Exhibit 6B. this document? Yes, I am. And what is this document? It's the reservation from Expedia. And is this a document that you have -- that exists in Are you familiar with 6A, is at the top, 6B is second, Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 26 of 85 Page 25 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. BY MR. FERINGA: Q. A. I'm looking at this section. Oh, that's the booking number. the 15th of the 3rd. 15th of March? Yes. That's when they made the reservation. The Here. The 15 -- they book on A. Q. A. BY MR. FERINGA: Q. In the upper -- in the right-hand section, there's a section that says "booked on." Yeah. Right there. A. Q. A. A. Q. A. Q. your files with respect to Ms. LaBelle and Ms. Hofer? Yes. This is what I had. And this document is kept in your ordinary course of business? Yes, it is. Now, this indicated -- strike that. What date does this indicate that the trip was booked on? On the 18th. On the 18th or -Check-in on the -MR. KUZMA: Objection. And what does that say? It says checked in -MR. KUZMA: Objection. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 27 of 85 Page 26 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Yes. Q. A. Q. A. Q. A. Q. reservation was made. And then it was for check-in on, then, what date? On the 18th. And does it say who the individual is who is the guest? Right. And who is that? It was this Lynn LaBelle, because I had problems when I heard of the name to find her. She wasn't named -- Because when you heard the name "Hofer" -MR. KUZMA: Objection. Move to strike. BY MR. FERINGA: Q. Okay. So the guest is listed here as Carrie Lynn LaBelle? Right. Okay. And there's some writing on this. Can you say what that says? "Request twin beds, 0/use, Expedia. And there's a telephone number there. telephone number? 360-4972. Do you know what that goes to? No. Okay. Then will you go to the 6C. What is this Studio." What's that Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 28 of 85 Page 27 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. A. Q. A. Q. A. Q. document here? Okay. Ms. LaBelle is the one who registered. What is this document called? It's a registration card. Okay. And this indicates that the room is registered under the name of? Right. Okay. LaBelle. And on the left-hand side where there's writing, is that writing that is generally filled out by a guest or by someone in the office? No. This was written by me after she had the Not having her name, I called Ms. LaBelle accident. after she went home just to find out how she was doing. When Ms. LaBelle gave me her telephone -- Ms. Hofer's telephone number, which I called her while she was there to find out how she was progressing. The first portion of my question, then maybe I was unclear, and I apologize, Mrs. Miller. Okay. All right. That's all right. Where the has the name, street, telephone, number nationality, is that filled out by a member of your staff or by the guest? No. Okay. By the guest. And then there's a section that says -- that appears to have the name "Stephanie"? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 29 of 85 Page 28 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. BY MR. FERINGA: Q. Mrs. Miller, with respect to your own investigation, at some point in time, you attempted to call and, in fact, did call Mrs. Hofer? Yes, I did call her. Okay. This is her number. A. A. Q. A. Q. Yes. And then there's a telephone number? Right. Is that the -- is that filled out by Stephanie or is that filled out by someone else? No. I was the one who wrote this here, that I could get -- after calling Ms. LaBelle to find out, she gave me this number to say I could speak to her directly. So I did, and I called her to find out how she was. MR. KUZMA: Objection. Move to strike. And, by the way, what exhibit is this? MR. FERINGA: MR. KUZMA: This is 6C. Okay. The right side of this document where it says "For Official Use Only," Mrs. Miller, who is that filled in by? It is filled in by the front desk. And do you recognize who the clerk was who checked in? This is Shian. Shian Nelson? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 30 of 85 Page 29 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. And did you do this report in the ordinary course of your business? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Yes. Is that right? That's Denroy -- I think this is Denroy's, and... Do you recognize it? The signature, it says "Nelson." signature. Okay. Is Shian no longer in your employ? Yes. Shian's No, she's not. And how long has she been gone from your employ? Since about two years, I think. Okay. About that. I'm going to ask you to look at Exhibit 6A. And with respect to Exhibit 6A, can you tell us what this is, please? Okay. This is -- this gentleman is the Strata Dalkeith Lonsdale, who is in charge of the manager. Strata, the general manager for the Strata, so I had to make a report. the accident. And was this report conducted after you conducted your investigation? Yes, it is. MR. KUZMA: Objection. This is the report I made to him re Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 31 of 85 Page 30 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Q. BY MR. FERINGA: Q. In terms of your investigation, did you have any information from any of your employees at the time that this incident occurred because there was some broken footwear that caused Ms. Hofer to fall? No, I did not. In any of the conversations that you had either with Mr. Scarlett or Ms. Nelson or with Ms. Hofer, when you had the conversation with Mrs. Hofer, did you have any conversation in which it was related to you that the cause of this incident was broken footwear? No -MR. KUZMA: -- I did not. Objection. A. A. Q. A. Q. I did. And this report was done by you? Yes, it is. And you are a person whose job it is to make such reports. Yes. MR. KUZMA: Objection. Is that right? BY MR. FERINGA: Q. Did you receive any information from any source that it was claimed by Mrs. Hofer that a part of the reason for the fall was because of poor lighting conditions? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 32 of 85 Page 31 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: A. A. Yes. A. A. A. A. No -MR. KUZMA: -- I did not. No. Objection. BY MR. FERINGA: Q. Did you receive any information from any source that one of the claimed causes of the accident was the lack of a guardrail or a handrail on the staircase? No -MR. KUZMA: -- I did not. Objection. BY MR. FERINGA: Q. In terms of your position as general manager -- or as manager of the Turtle Beach Towers, did you come to the conclusion as to how this accident occurred? MR. KUZMA: Objection. Because I was told that she was drunk, she was intoxicated, and she went back to the room, came back a second time when the accident occurred. BY MR. FERINGA: Q. It says in your report, which we've marked as Exhibit 6A, that you had a telephone conversation with Mrs. Hofer on March 31st. Yes. MR. KUZMA: Objection. Is that correct? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 33 of 85 Page 32 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. A. Q. BY MR. FERINGA: Q. Did she blame the condition of Turtle Beach Towers for the fall? No. Did she say anything about the accident at all? No. She just... A. Q. A. Q. In that telephone conversation, what did Mrs. Hofer tell you? That she spent ten days in the hospital and her ligaments were torn, and that -- you know, it's going to be hard for her to be walking again. In the telephone conversation that you had with Mrs. Hofer on March 31, Mrs. Miller [sic], was there any statement by Mrs. Miller that the accident occurred because of broken footwear? No. MR. KUZMA: Objection. Did you have any further communications with Mrs. Hofer after March 31? No, I did not. Did you have any further communications with the lady who was identified as the guest, Ms. LaBelle? No, I did not. Have you filed any other reports? No, I did not. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 34 of 85 Page 33 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. BY MR. KUZMA: Q. A. Q. Good morning, again Ms. Miller. Good morning. My name is Stephen Kuzma. I represent Stephanie Hofer record. record. MR. FERINGA: 1 through 6C. Move for admission of Exhibits I have no other questions. Note my objections. MR. KUZMA: Do you have any questions, Tom? MR. FERINGA: We need to go off the record. We're going off the VIDEO TECHNICIAN: The time is 10:37 and 27 seconds a.m. (Recess was taken at 10:37 a.m.) (Back on the record at 10:38 a.m.) VIDEO TECHNICIAN: We are back on the The time is 10:38 and 50 seconds a.m. MS. MINCHOFF: MR. REITH: No questions. Thomas Reith for I Excuse me. Expedia, Inc. I have no questions at this time. will reserve to the extent something comes up at this point after Ms. Kuzma inquires. EXAMINATION and her husband in the case. Do you still have the photographs in front of you that Mr. Feringa showed you? Which of them? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 35 of 85 Page 34 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Q. A. Q. A. Q. A. A. Q. A. Q. Q. A. Q. I'm sorry? Which of them? The photographs that you have in your left hand, do you still have those that he showed you? have them? Yes. Okay. Yes, I do. How long have you worked here? You still For 30 years. 30 years. And fair to say that you've walked up and down those stairs that we see in those photographs -Every day. -- thousands of times? Every day of the week. week. So you've walked up and down those -Yes. -- and you're very familiar with those stairs and the entryway? Yes, I am. When Mr. Feringa asked you how many steps lead up to the landing, you first said three steps. Yes, but I have -- yes, but -You did say three. Right? Correct? I'm here seven days of the Yes, I did say three. Okay. And then you changed your answer to two. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 36 of 85 Page 35 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. A. Correct? I know it's two, but, you know, walking up, three. Yes. So you changed your answer from three steps to two. Correct? Uh-huh. Yes. And, again, it's fair to say that you're very familiar with -Yes, I am. -- those stairs? Yes, I am. All right. reception -Yes, I am. -- area beyond those stairs? Yes. And as to enter the lobby, there's a reception desk on the left-hand side of the lobby. Yes. And on the right-hand side of the lobby there's seats? Yes. From the vantage point behind the reception desk, is it fair to say that you can't see the turtle pond which is shown in those photographs? No. But there's a glass with the mirror there, or Correct? And you're very familiar with the Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 37 of 85 Page 36 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. picture on the wall. You can stand at that desk and you see anybody coming from that angle. All right. My question is not whether you can see anyone coming from that angle, but can you see the turtle pond from behind the reception desk through that mirror down below. No. No. Is it fair to say, Ms. Miller, that you Can you see it? Thank you. try to maintain a safe resort? Yes, I do. And you feel that you do maintain a safe resort? Yes, I do. So if any stairs were chipped, that would not be a safe condition. Right. You would agree with that? I would. You've stated to counsel that you conducted an investigation. Yes, I did. How many times over the course of your employment history here have you conducted an investigation regarding an accident which occurred here? We've not had an accident. report we have. This is the first major Correct? Correct? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 38 of 85 Page 37 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. A. Q. Q. Q. A. Q. A. This is the first in 28 years? Yes. Uh-huh. So is it fair -You will have like little things like in the room like they bump their feet beet on the table, they bounce off the glass of the table or something. But away from that, this is the biggest major one I've ever had. All right. Is it fair to say that based upon your testimony anyway that this was the first accident of this type -Yes. -- that this is the first investigation that you've conducted. No. Correct? I have like daily reports that I have to make, if Like, as I said, if a glass is something happened. broken, if somebody walk like in the glass door or something like that, then I have to make a report. I specifically asked you whether this is your first investigation. Um-hmm. "Yes"? No. have. But this is the first type of -I investigate other cases. Yes. Other cases I Do you understand me? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 39 of 85 Page 38 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Major one, yes. And this is the first major investigation that you yourself have conducted. Yes. Do you have any training in accident investigation? Like what training? Any training. First aide or something like that? Interviewing witnesses. Yes, I do, like -Where did you get that training? From school. What school? I went to the management technical school. When was that, ma'am? That's about 50 years ago. Fifteen? Fifty? I'm 60. Yes. My schooling. Do you have any training? Fair to say? 40, 50 years ago. Okay. All right. Since that time, have you had any further training in accident investigation? No, I haven't. Have you had any further education in interviewing witness to an accident? No. Just the basic day-to-day. You have a basic day-to-day guest coming in with complaints and you Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 40 of 85 Page 39 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. Q. A. Q. have to do that sort of a... Is it fair to say, Ms. Miller, that you have no personal knowledge -- personal knowledge -- about how this accident occurred? Well, I was told by my staff. staff what took place. Is it fair to say that you were not there at the time of the accident? I was not there. It was 12:30. I was home. I was told by my two Is it fair to say, Ms. Miller, that everything that's in your report consists of something that someone told you about the accident? Yeah. I was told by the two staff. And one of the staff is no longer here. All right. Correct? Right. What does Stephanie Hofer look like? her to me, please? No. I haven't met her. Can you describe You never met her? No; because the same night she came in is when she went to the hospital. All right. So you've never met Ms. Hofer. Did the two staff members that you spoke of that you report on in your report, did they ever tell you what she looked Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 41 of 85 Page 40 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. A. Q. like? No. Is it fair to say that at the time of the accident that there were hundreds of guests at Turtle Beach Towers? MR. REITH: Objection. I wouldn't say hundreds of guests. BY MR. KUZMA: Q. A. Not hundreds? No. More than a hundred? I would say around -- in March -- March is a slow period, so I would say about -- we were about -- I could say what percentage. Maybe about 35 percent, which comes out to be about 40 or 60 guests. 40 or 60 guests? Um-hmm. Is it fair to say that this was spring break? No. I didn't have spring break at that time. I'm sorry? They always go to Negril. No, that's not my question. My question is not where they go, my question is, is it fair to say that this was spring break time period, whether they come here or somewhere else? Okay. MR. REITH: Objection. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 42 of 85 Page 41 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pointed. Q. A. Q. A. BY MR. KUZMA: Q. Did you ever ask the two people under your employ whether they found a broken sandal at the scene of the accident? I was not told about the sandal. When were you first told about a sandal? After I got an e-mail saying that she was -- there was a court case, I think, an insurance court case, which was thrown out. And then insurance company called me A. BY MR. KUZMA: Q. A. Q. "Yes"? I don't know what time spring break was that year. Now, according to your testimony, you said that Mr. Denroy said that there was a guest in the turtle pond bleeding. No. Is that what you said? He said that the guest fell in the turtle pond And at the and she was bleeding when he called me. time I told him to send her to the hospital. MR. KUZMA: I'd move to strike. to tell me that they were doing something to say that a sandal was broken, and that was the cause of accident. Let me ask you this: Is the first time -- I noticed that you The first time you became aware that a Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 43 of 85 Page 42 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. Q. A. Q. A. Q. A. Q. A. Q. A. sandal may have been involved, was that in a conversation that you had with Attorney Scott Feringa? No. When was the first -It was from the insurance company in Jamaica, who advised me that they were now saying that it was a broken sandal that caused the accident. Okay. I told him I was not aware of a sandal. When did you have that conversation? It's about four or five months ago. Approximately. If I can recall. Right? Three, four, five months ago this year. Yes. So that would be 2006 you had this conversation. Right? Right. Yes. Do you have Ms. Miller, you referenced an e-mail. your file folder with you? Um-hmm. And may I see that e-mail, please, that you referred to in your testimony? He didn't send me anything. course case. Okay. If I may. Thank you. He just told me about the And this is a letter that you received from Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 44 of 85 Page 43 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. Q. A. Exhibit 8. BY MR. KUZMA: Q. When did you first speak with Attorney Scott Feringa regarding this accident? I am not sure of the dates exactly. or July. Of which year? 2006. July of 2006? Right. And did you make some notes for yourself regarding your conversation with Mr. Feringa? No, I really didn't. What were you just looking at, ma'am? letter -- is that a letter from -Is that another Sometime in June marked. A. Q. Attorney Scott Feringa? Um-hmm. Could I see that, please? MR. KUZMA: Thank you. "Yes"? I would like to have this We can do it -MR. FERINGA: Exhibit 8. It's there. MARKED BY THE REPORTER: DEPOSITION EXHIBIT NUMBER 8 10:51 a.m. MR. KUZMA: I'm going to mark this e-mail as Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 45 of 85 Page 44 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. BY MR. KUZMA: Q. A. Q. It's a Notice of Deposition from Mr. Feringa? Yes. Thank you. When you first spoke with Mr. Feringa, A. Yes. MR. FERINGA: It's a Notice of Deposition. what did Mr. Feringa say to you and what did you say to Mr. Feringa? He just told me about the court case, that they would be coming to Jamaica to investigate. he -- who he was with. I didn't know if I didn't know who he was with, he just told me his name and he was coming to Jamaica to investigate Ms. Schafer's case. where he was from or anything. I didn't know I just got a letter from him by e-mail to say the dates that he was coming and if I would make myself available and I would make my staff available for that. All right. Ms. Miller, When you say Ms. Schafer's case, who are you speaking of? You know, Ms. -- the guest that got in the accident. That would be Ms. Hofer. Ms. Hofer. Yes. Right? Do you sometimes confuse guests' name? No. Not really. Just her name was not on the registration. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 46 of 85 Page 45 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Q. A. Q. A. Q. Q. A. Q. But it's on the documents front of you. What documents? Well, the document that you have in your right hand. Right? Yes. You know that this is is an accident involving Ms. Stephanie Hofer. Right. By the way, was there a Ms. Schafer who was a registered guest at the time of this accident at Turtle Beach Towers? If there was what? Was there a Ms. Schafer also a guest here at the time of this accident? No. I had no record of her until I found that -Is that fair to say? Correct? investigated and I found out that she was coming from apartment 10E. Then I called Ms. LaBelle and she told They were me they were all sharing the apartment. both sharing the apartment. At the time of the accident that we're here for today, there were about how many guests? 60 guests? Yes. Would there also be some apartment owners on the premises of Turtle Beach Towers at that time? Would you say 40 to Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 47 of 85 Page 46 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Yes. And how many apartment owners were there also in addition to the guests? I would say about 30. So is it fair to say that there were about 90 to a hundred guests and apartment dwellers at Turtle Beach Towers at the time of the accident? Sure. By the way, do you sell alcohol at Turtle Beach Towers? No. We don't. About. Is it fair to say that there's no liquor store at the premises of Turtle Beach Towers? There's a restaurant open at that beach. But my question is, was there a liquor store? No. Is there a bar that serves liquor at Turtle Beach Towers. There was at the time. There was at the time? Yes. What's the name of the bar? Billy George Restaurant has a bar and restaurant. And that restaurant serves liquor. statement? Is that a fair Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 48 of 85 Page 47 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. BY MR. KUZMA: Q. And you are interested in the safety of your guests here. Sure. Do you have any control over how much alcohol is served at the bar? No, I don't. Do you try and make sure that the bartenders know that they shouldn't serve people so that they're intoxicated? Do you do that? Correct? A. A. Q. A. Q. A. Q. A. Q. Yes, it does. And the bartenders at -- is that owned by Turtle Beach Towers that -No, it's not. It's privately owned. On the premises? Where is it located? Yes. By the poolside. And it's fair to say that those bartenders try to ensure that they don't serve anyone to the point that they're intoxicated? Yes. I would say so. Is that fair And that would be a good rule of safety. to say? Yes. MR. REITH: Objection. No; because they are on holiday and they can also go Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 49 of 85 Page 48 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. in the supermarket and purchase. That's not my question. Okay. I move to strike. Okay. How long from the time of the accident was it to the time that you arrived at the scene of the accident? Oh, it took place at midnight, and I am at work at nine o'clock. So the guards waited for me -- Shian was on duty in the morning, and Denroy stayed on to give the report. So about nine hours had passed from the time of the accident to the time that you arrived at the scene of the accident? Yes. And how far to you live from here? Half an hour drive. Do you know a taxi driver by the name of "MacKenzie"? No; but I was told that he was on duty at the gate when the accident happened and took her to the hospital. Who told you that? Denroy. Denroy told you that MacKenzie was here? Yes. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 50 of 85 Page 49 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. A. Q. A. Q. Did you put that in your accident report? No. Do you know whether MacKenzie was the taxi driver that took Ms. Hofer to the hospital? Yeah. I spoke to the guard -MR. REITH: Objection. I spoke to the guard on duty that was on duty at the gate, and he's the one who had the car who took her -who came and took her to the hospital. BY MR. KUZMA: Q. And now, is it fair to say that that was Henry MacKenzie that transported her to the hospital? Yes. It fair to say that the Turtle Beach Towers is a gated community; that is, you have to pass through a gate? Yes. And there's a guard stationed at the front of that gate? Yes, there is. And no one gets in without the guard's permission. that fair to say? Right. And that's also for the safety of your guests? Yes. Is it fair to say that Mr. MacKenzie is one of the Is Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 51 of 85 Page 50 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. Q. A. Q. A. Q. A. Q. A. regular cab drivers that works out of the hotel? Yes. He -- you find taxi operators that would work out like in the nights, after midnight, that would be around in the area. Yes. Correct? And he was one of the regulars. Yes. After this accident -- when did you first discover that Mr. MacKenzie was the taxi driver that took Ms. Hofer to the hospital? The same morning I came on duty. About what time did you discover that? Because what actually happened, I was the one who was going to take up job of paying the taxicab to take her to the hospital, but I was told that it was paid by Ms. LaBelle. All right. So my question to you, ma'am, Ms. Miller, is, when did you first become aware that Mr. MacKenzie was the taxi driver that took her to the hospital? The same morning when I came in, about 9:30. About 9:30. Did you ever speak with Mr. MacKenzie about his observations of Ms. Hofer that night and that morning? Yes. He said she was bleeding heavily. She was what? Bleeding. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 52 of 85 Page 51 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. Q. A. Q. A. Q. A. Q. A. Q. Bleeding heavily, yes. And she was not in the right frame of mind. Did he say she was in shock from having her leg cut open? He just said not in the best frame of mind at the time. Did he say anything else? No. "No"? No. Is it fair to say, Ms. Miller, that the business of Turtle Beach Towers is providing accommodations for guests that want to stay here? Yes. That is the business of Turtle Beach Towers? Yes. Of the guests that arrive at Turtle Beach Towers as guests, can you tell me what percentage of those guests, as far as you know, book their trips through Expedia? Expedia, I would say about 10 percent. 15 percent. 10, 15 percent? Yes. By the way, have you ever spoken with Attorney Reith? 10, Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 53 of 85 Page 52 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. A. Q. A. A. Q. No, I haven't. Have you ever seen anyone from Expedia -- or who works for Expedia at Turtle Beach Towers? Yes. They will come and do checks now and again, room checks. They would come and do checks? Inspections. Inspections. Okay. And how often would they perform About. their inspection? It's maybe about two times a year they would. And they could come -- all right. And they would come here, and is it not fair to say that they would do that in 2004, 2005, 2006? Yes. And would those be inspection -- what would those inspections of the premises consist? Grounds and rooms. Grounds and rooms? Yes. And would they point out things to you at times that need -Yes. If I could just finish, Ms. Miller. Okay. Would they point out things on occasion to you as the Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 54 of 85 Page 53 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. A. A. Q. A. Q. A. Q. manager here which need to be fixed? Yes. If there is... That would be true of items within a hotel room? Right. As well as what needs to be fixed on the grounds? Yes. Would they take photographs also upon their inspections? Yes. If they see anything wrong, they would do a checklist. And if they saw anything wrong, would they give a list of things which needed correcting or would they just tell you? They would e-mail it. They would e-mail it to you? Yes. Do you keep a separate file of the correspondence with Expedia? I do have, but I don't have it in my possession here. Okay. You didn't bring that with you to the Is that fair to say? deposition. Right. All right. And in 2004, is it fair to say that you had a separate file for Expedia's, let's say, inspection reports of your facility? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 55 of 85 Page 54 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. A. Q. A. Q. A. A. Q. A. Q. Yes. And that would be true also of 2005 and 2006? Yes. How long -- as far as you know, how long have you -and by "you" I mean Turtle Beach Towers been doing business with Expedia? It about three years. Approximately. Three or four years. Time goes so quickly, about five years, I think. So let's say from 2001 through the present? Um-hmm. "Yes"? Right. Have you ever seen a contract between Expedia And Turtle Beach Towers? It is there, Mr. Dane Thomas. I'm sorry? Yes. Okay. There is one with Mr. Dane Thomas, yes. And when was the last time you saw that? I have Yes. It's in the office, I know, with Mr. Thomas. not seen it this year, but I know there is. And Mr. Thomas is who? He is like the apartment owner. for 10E. For 10E? Right. He is apartment owner Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 56 of 85 Page 55 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Q. A. A. Q. Q. And he has a contract with Expedia to rent out his apartment? Yes. The inspection reports that Expedia does that you've seen and maintained in a file folder, are they handwritten or are they on a form? I think they would be typed or by e-mail, but on a form. So they would send you the e-mail after their visit. Right? Yes. And you would try and correct those things which needed correcting? Sure. Yes. Okay. After you received that correspondence from Expedia, and you attempted to correct the situation, how did you notify Expedia that the situation that was listed on their inspection report was corrected? We would fill the checklist and send it back to them. Okay. Would anyone from Expedia then come to the premises to make sure that it was, in fact, corrected? No. No. The turtle pond that we see in those Thank you. photographs that Mr. Feringa showed you, is it fair to Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 57 of 85 Page 56 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. Number 5? BY MR. KUZMA: Q. We're looking at Exhibit Number 5, Mrs. Miller. And Q. A. say that at the present time, as we sit here today, that it does have some rocks in it? It has at least two for the turtles to sit on. three rocks, but they're inside the pond. If you could show me in those photographs where those rocks are? MR. FERINGA: We're looking at Exhibit About you've pointed out to the jurors where those two rocks are. Yes. Correct? In the pond. Is it fair to say that the one rock -- if The one rock has a lot Thank you. you could hold that up again. of algae on it, the one that's partially underneath the water. This one here? Yes. The one that's underneath the water a little Is that fair to bit, that has a lot of algae on it. say? Yes. And there's no railing that guards that turtle pond from the staircase. There's no what? Correct? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 58 of 85 Page 57 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. A. Q. Q. A. Q. A. Q. There's no railing. No. When was the last time that any tile was replaced at that location? There was no tile replaced as long as -- for as long as I know. Is it fair to say, Ms. Miller, that when you perform an investigation you try and do a full and fair investigation? Yes. I do. Now, when you performed this particular investigation, how long did it take you? I spoke to them in the morning when I came on duty and I made the report. I spoke to the guard on duty, and when I made a follow-up with Ms. LaBelle to find out the hospital condition, what it was like -- what she was like, when she told me she have to fly her out country the same day. That's the following day. That is, when did When did you finish your report? you conclude your investigation? It was about -- at about the end of the month. The end of the month? Yes. Because I called her to find out -- I had it all written down, and then I called her to find out because she said she spent ten days in the hospital, Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 59 of 85 Page 58 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. so... Did any employees ever give you any written reports about what happened. No. If you would, Ms. Miller, can you take me through -you testified that you had two -- you had conversation with two people the next day. Um-hmm. And who was the other one with? Shian. And how long did those conversations last? I would say about half an hour. Half an hour in total? Yes. Okay. Yes. And how long did that conversation last about the accident or the condition of Ms. Hofer? When I called first she was on her way to the hospital, she was not in the room. And I -- when she And spoke with Carrie LaBelle, too. Correct? Denroy was one. Right? came back -- I left her a message and she came -- I would say about 15 minutes, because I was saying to her there were guests saying to her not to go into the pond, and she was into the pond -MR. KUZMA: I would move to strike. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 60 of 85 Page 59 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. A. Q. A. Okay. BY MR. KUZMA: Q. I'm only interested in how much time you spoke with Ms. LaBelle. Maybe about 10 minutes. And you testified that you also spoke with Mr. MacKenzie. Yes. How long did that conversation take? Maybe about 10 minute also. After you spoke with those people four individuals, is it fair to say that your investigation was pretty much complete at that time until you spoke with Ms. Hofer ten days down the road? Yes. Yes. And the conversation that you had with Correct? All right. Ms. Hofer, how long was that? Just by telephone. called her. I just took my telephone and I I think she told me that she was in the hospital for ten days, and her ligaments were torn. Now, when you spoke with her, was she in the hospital or was she at home? I wasn't sure, but I don't know if she was at home or in the hospital. Is it fair to say that you don't know whether she was Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 61 of 85 Page 60 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. BY MR. KUZMA: Q. I was only asking you how many times you spoken with Mr. Feringa. Okay. I don't know if it was once or twice, to be I know he called to confirm, to ask me if I A. A. Q. A. Q. on any pain medication at that time? No. I really don't know. Is it fair to say that you didn't know whether she was on any medication at all for the injuries that she suffered. Yes. Okay. How many times have you spoken with attorney Is that fair to say? Feringa about this case? I think he called me once to say -- just to find out from me if -- if I would be available for the date that we was mentioning that he was coming down. And I actually started to say to him about -- I wanted to say she was -- I don't know who it was. She was drunk or intoxicated, and he said he didn't want to hear that or something, he just wanted to know what day -he just wanted to come down and if I would have the staff here and meet with him. I didn't know he was I whom, if he was for Ms. Hofer or who he was with. didn't know. MR. KUZMA: I move to strike that. truthful. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 62 of 85 Page 61 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. A. A. Q. A. Q. A. Q. A. Q. A. Q. Q. was -- was it once? I don't remember. Did he tell you some of the questions that he might be asking you about the accident? No. No. No, he did not. Did you tell you the subject nature of the deposition? No. He did not. He didn't even tell you the subject of the deposition? No. I came here today blind, not knowing. So this was all a surprise to you? Yes. It was. And you do acknowledge receiving what has been marked as Exhibit 8? Yes. Did you ever speak with any investigators about this accident? No. Just the local insurance company came to investigate. Did you give them a written statement? No. All this was done -- I gave the Strata this and the Strata is the one who actually did the rest. What is depicted as your accident report, which is dated April 5, 2004, did you type that out yourself? Yes -- the secretary did. If I could have a moment, Ms. Miller. Sure. Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 63 of 85 Page 62 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. A. Q. A. Q. Q. The people, Ms. Miller, that you spoke with about her condition, did either one of your employees tell you that they saw her drinking -No. -- before the accident? No. Do you know how much income Turtle Beach receives approximately on a yearly basis from Expedia? MR. REITH: Objection. I I would have to go through my accounting system. don't know. BY MR. KUZMA: Q. All right. I'm going to ask you, Ms. Miller, if you can do that sometime over the course of the next couple months. Okay. Thank you. And also I'm going to ask you if you would Can you do that for me? preserve your file folders regarding the inspections that Expedia does of Turtle Beach Towers that you've already testified to? Okay. By the way, do you have a shredder on the premises? No. Have you ever seen the website that Expedia has that lists Turtle Beach Towers? Case 4:05-cv-40170-FDS Document 86-11 Filed 04/13/2007 Page 64 of 85 Page 63 FAYLIN MILLER August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. BY MR. KUZMA: Q. -- from Expedia? turn to this page? Yes, I have it. All right. In response to Mr. Feringa's questions Do you recall him If you would, Ms. Miller, if you can BY MR. KUZMA: Q. If we can go back to -- Ms. Miller, do you still have that with you, this exhibit -MR. FERINGA: Exhibit 6B? ended. going. MR. FERINGA: I'm sorry. I thought you A. A. Q. Yes, I have. Okay. Ms. Miller. Thank you for your patience. I do want to look

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