Vargas et al v. Pfizer Inc. et al

Filing 99

DECLARATION of Julie A. Ahrens in Support re: 98 Reply Memorandum of Law in Support. Document filed by Brian Transeau. (Attachments: # 1 Exhibit W# 2 Exhibit X# 3 Exhibit Y)(Ahrens, Julie)

Vargas et al v. Pfizer Inc. et al

Doc. 99 Att. 3

Exhibit Y

Dockets.Justia.com

,.
ROBERTS

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

000--RALPH VARGAS and BLAND-RICKY

Plaintiffs,
) No. 04CV 9772

vs.

(JCF)

PFIZER, INC. ; PUBLICIS, INC.
FLUID MUSIC; EAST WEST

COMMUNICATIONS, INC. and
BRIAN TRANSEAU, p/k/a " BT"

Defendants.

Deposition of
STEVEN W. SMITH, Ph.

Tuesday, August 15, 2006

CERTiFiED COpy
Reported by:
GEORGE SCHUMER, CSR

(01- 384619)

LEGALINK~
A WORDWAVE

LegaLink San Francisco

COMPANY

575 Market Street, 11th Floor San Francisco, CA 94105

tel [phone] tel [phone]
fax [phone]

www. legalink. com

GLOBAL COURT REPORTING. LEGAL VIDEOGRAPHY . TRIAL SERVICES

STEVEN W. SMITH , Ph.

August 15, 2006

18:17:14

MR. OLSON:

Objection.
That'

Leading; compound.

18:17:16
18:17:17

THE WITNESS:
MR. CHIN:

s correct.

I f Dr.

Boulanger wanted to do a

18:17:29
18:17:32

fair and impartial analysis between Aparthenonia and
Funky Drummer, is there any reason for him not to use
scales of the same size?
MR. OLSON:

18:17:36
18:17:38 18:17:42

Objection.

Compound; leading;

calls for speculation.
THE WITNESS:
MR. CHIN:

18:17:43 18:17:45

No, there isn
And if you had to do the

18:17:49
18:17:54

comparison between these two compositions, would you

use scales of the same size, or different size?
I would certainly use scales of the same
However, since we are referring to these figures
specifically, I would never do the analysis in this

18:17:58 18:18:01

size.

18:18:05

18:18:09
18:18:10
18:18:17

manner.
In your opinion , by using scales of different

sizes in his Figures 25 and 26, is the conclusion that
Dr. Boulanger arrives at false?
MR. OLSON:

18:18:23
18:18:31
18:18:34

Obj ection.

Leading; form.
problem.

THE WITNESS:

I don t believe the single issue

18:18:36
18:18:41

of using different scales is an overwhelming

It is simply problematic of the larger problems within

18:18:45
18:18:47

the report.
MR. CHIN:

Did Dr. Boulanger indicate in

239

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN W. SMITH , Ph.

August 15, 2006

18:19:17

his report that he took into consideration the
possible use of the de- noise program in comparing the
two compositions?
MR. OLSON:

18:19:28
18:19:34

18:19:35

Obj ection.
No, he had no mention of

18:19:36
18:19:37

THE WITNESS:

anything related to
MR. CHIN:

that.
In your expert opinion, based

18:19:56
18:20:07
18:20:14

on the information that you have covered, what is your
conclusion as to whether or not Aparthenonia is
extremely similar to Bust Dat Groove?
MR. OLSON:

18:20:26
18:20:32

Obj ection.

Leading; compound.

18:20:35
18:20:38

THE WITNESS:

In my opinion, the evidence

extremely strong that Aparthenonia is extremely
similar to Funky Drummer.
MR. CH IN :

18:20:42

18:20:46
18:20:52 18:20:52

No further questions.

FURTHER EXAMINATION BY MR. OLSON
MR. OLSON:

Dr. Smith, did Figures 25 and

18:20:56
18:21:01 18:21:11

26 from Dr. Boulanger s report have any effect on

the

opinions you reached in your analysis of whether Aparthenonia is a copy of Funky Drummer?
, in my opinion these figures are fatally

18:21:13
18:21:17

flawed, and provide no conclusion whatsoever, either
way.
So even if there were some mistake in the way
Dr. Boulanger prepared Figures 25 and 26 of his

18:21:20 18:21:20 18:21:26

240

LegaLink ,

A Merrill Communications

Company

[phone]

STEVEN

W.

SMITH , Ph.

August 15 , 2006

18:36:16
18:36:17 18:36:17

correct?
That'
s correct.

And Dr. Boulanger has 30 years of musical

18:36:22
18:36:27 18:36:28

experience ,

as reflected in his report; correct?

MR. CHIN:

Obj ection.

THE WITNESS:
MR. OLSON:

That'

s my understanding.

18:36:32
18:36:37 18:36:40 18:36:48

So after all that, is it your

testimony on the record that when you make your
conclusion that Aparthenonia is a copy of Bust Dat
Groove, that there s no subjective element to the

18:36:53

process that leads to your conclusion?
MR. CHIN:

18:36:56
18:36:57

Obj ection.
I stated that my conclusion was

THE WITNESS:

18:36:59
18:37:02
18:37:04

based on extremely strong evidence, and I stated what
that evidence was.

And that included the assumption

now that different drums could not produce these
of similar spectra.

kinds

18:37:09
18:37:12
18:37:14

If that assumption is wrong, of course my

conclusion would be wrong.
MR. OLSON:

18:37:15
18:37:18

And your assumption regarding
Obj ection.
As I said , I don t believe it

the spectra of drums is subj ecti ve; right?
MR. CHIN:

18:37:23
18:37:24

THE WITNESS:

18:37:31 18:37:33

would be classified as either subj ~cti
It is an assumption.

ve or obj ecti ve.

251

LegaLink ,

A Merrill Communications

Company

[phone]

CERTIFICATE OF REPaRTEE

I, George Schumer, a Certified

Shorthand
the

Reporter, hereby certify that the witness in forgoing matter was by me duly sworn to tell
within-entitled cause;

the

truth;

the whole truth and nothing but the truth in the

That said proceeding was taken down in
shorthand by me, a

disinterested person,

at the tim~ and

place therein stated ,

and that the testimony or the said

witness was thereafter reduced to typewriting, by

computer, under my direction and supervision;
That before completion or the deposition,
review of the transcript

was

was not

requested-

If requested , any changes made by the

deponent (and
allowed are

provided to the reporter)
appended hereto-

during the period

I further certify that I am not of counsel attorney for either or any of the parties to said
the

deposition, nor in any way
thereto
DATED:
It

vested in the outcome of this

cause, and that I am not related to any of the parties

24v
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Jj~/

GeoJ;"ge Schumer; CSR 3376